Archives: July 2010

EPA Releases Rulemaking Guidance on Environmental Justice

On July 26, 2010, the U.S. Environmental Protection Agency (EPA) released an interim guidance document to help agency staff incorporate environmental justice into the agency’s rulemaking process. The guidance document, “Interim Guidance on Considering Environmental Justice During the Development of an Action,” provides a step-by-step guide to help EPA staff ask questions and evaluate environmental justice considerations at key points in the rulemaking process. The guide also describes the statutory and policy framework for considering environmental justice issues. The U.S. EPA will use the lessons learned from workgroups using the interim guidance and consider them in the development of new technical guidance and revisions to the Interim Guide later this year.

The U.S. EPA is seeking public feedback on how to best implement and improve the interim guidance document. The interim guidance can be found here: http://www.epa.gov/environmentaljustice/resources/policy/ej-rulemaking.html. Feedback can also be submitted at this web address.

California Legislature Considers Requiring Local Trustees of Public Trust Land to Prepare Sea Level Rise Action Plans

With rising sea levels as a logical outcome of global climate change, the California Legislature is considering Assembly Bill 2598, which would require each local trustee of public trust land to prepare a sea level rise action plan. This plan would evaluate the potential impacts of a rising ocean on both public trust land and improvements on that land, and it would outline potential strategies to deal with those impacts.

Under the public trust doctrine, California holds title to tidelands, submerged lands, and beds of navigable waterways for public purposes. These purposes include commerce, navigation, fisheries, and preserving land in its natural state. The state has granted title to certain public trust lands to more than 80 local trustees, including cities, counties, public districts, and agencies such as the Department of Water Resources.

Many of these public trust lands are on or near California’s coastline, and thus directly affected by rising sea levels resulting from global climate change. The potential impact on the state from rising sea levels is considerable. Approximately 80% of California’s population lives within 50 kilometers of the Pacific Ocean, and the coastal economy contributes more than $50 billion annually to the state. Even when limited to activities at California’s ports, this sector of the economy produces roughly $7 billion annually in state and local revenues and employs over five hundred thousand Californians.

AB 2598 was introduced by Assemblywoman Julia Brownley (D-Woodland Hills), and it is currently pending in the State Senate. The core of the bill is a requirement that each local trustee “shall give management priority to, and take all reasonable actions that are necessary for, the preparation of a sea level action plan” for public trust lands over which it has been granted title. This plan must be submitted by July 1, 2011, to the Natural Resources Agency, the Governor’s Office of Planning and Research, and the State Lands Commission. Among other required content, each plan must map areas that may be affected by sea level rise in 2050 and 2100; estimate the financial effect of sea level rise on public trust lands and improvements on those lands; explain strategies to prevent or mitigate damage to existing development, infrastructure, and critical habitat; and design standards to avoid impacts on new development and infrastructure.

Under the bill, a local trustee may be exempt from preparing a plan, or may submit a modified plan, if none of its public trust lands is subject to sea level rise by 2100, or if the cost of preparing the plan “substantially outweighs” the beneficial information the plan would provide. A local trustee may also be exempt from preparing a plan if revenues from its public trust lands and assets from sources such as the Ocean Protection Council are insufficient to fund the plan’s production.

California Legislature Considers Bill to Codify Climate Action Team

Assembly Bill 2329, currently pending in the State Senate, would establish coordinated climate change efforts among state agencies through two main provisions. The first would require the California Natural Resources Agency to issue and periodically update a Climate Vulnerability and Adaptation Plan, which would cover strategies for responding to the effects of climate change. The second provision would codify certain responsibilities for the Climate Action Team (CAT), a group made up of representatives from several state agencies. AB 2329 would make the CAT an official central hub for climate change policy in California.

In June 2005, the secretary of the California Environmental Protection Agency (Cal EPA) created CAT to help achieve greenhouse gas emission reduction targets. After California passed AB 32 the following year, the CAT acquired a central role in coordinating efforts to reach that law’s goal of reducing the state’s GHG emissions to 1990 levels by 2020. In 2008, the CAT was further tasked with helping to develop a strategy for responding to the effects of climate change. However, also in 2008, the governor vetoed Senate Bill 1760. This bill codified the CAT, but it also directed the CAT to conduct strategic research, and to release a climate change impact adaptation and protection plan every two years. In his veto message, the governor stated that the CAT’s focus should remain on activities such as implementing AB 32, and that it would frustrate this focus to add such a substantial research mandate.

AB 2329 contains two main provisions, the first being the California Climate Vulnerability and Adaptation Plan of 2010. As the name suggests, this would require the Resources Agency to prepare a Climate Vulnerability and Adaptation Plan. This plan would be created in coordination with other agencies for the purpose of identifying and prioritizing research, policies, planning, best management practices, and anything else that would help the state adapt to the unavoidable impacts of climate change. Beyond a mere policy paper, the plan would further serve as California’s climate change adaptation planning document as required by any federal law that makes federal funding contingent on such a plan. The first plan would be due to the governor on or before June 1, 2012, and a revised plan would be due every three years thereafter.

AB 2329’s second provision, the State Climate Change Action Team Act of 2010, would codify the CAT and delineate its official makeup and responsibilities. The CAT would be chaired by the secretary of Cal EPA and would consist of members from several other entities in the state government, such as the Resources Agency and ARB. The CAT’s purposes would be to coordinate state efforts to meet the GHG reduction targets in AB 32, and to serve as the central organization for developing state climate policy more generally. To achieve these purposes, AB 2329 directs the CAT to identify and review relevant activities and programs; recommend policies, investment strategies, and priorities; and provide information to local governments and regional groups.

Debate on AB 2329 does not appear focused on whether climate change poses a danger to California, but on the best mechanisms for responding to that danger. Critics have claimed that codifying coordination roles in a statute will only make the state’s approach to climate change policy less flexible, more costly, and more confusing. Rather than codifying the CAT, and thereby creating a new permanent body, some people advocate relying on an existing legislative committee to coordinate state action. This committee could “keep abreast of agency actions, hosting informational hearings and passing specific legislation to reorganize government if necessary to align staff and leadership around important state issues.”

Proponents contend that the scope of the problem renders the current system inadequate. As the Coalition for Clean Air has stated in support of AB 2329, responding to climate change requires a “tremendous collaborative, multi-stakeholder effort.” As one of the bill’s author’s argues, nothing in existing law requires climate change policy to be coordinated across agencies, and there is no requirement to develop strategies for dealing with climate change impacts. AB 2329 would change that, putting greater weight behind the State’s response.

First District Court of Appeal Finds Sonoma County Properly Approved a Coastal Permit and Use Permit for a Residential Project Despite a Reduced Setback

First District Court of Appeal Finds Sonoma County Properly Approved a Coastal Permit and Use Permit for a Residential Project Despite a Reduced Setback

In Hines v. California Coastal Commission, Board of Supervisors of Sonoma County, et al. (2010) 186 Cal.App.4th 830, the First District Court of Appeal held the Sonoma County Board of Supervisors’ (Board) approval of a residential project and the California Coastal Commission’s refusal to exercise jurisdiction over appellants’ appeal did not violate the Coastal Act (Pub. Resources Code, § 30000 et seq.). The court also held the project opponents failed to exhaust their administrative remedies, thus barring their CEQA claims. Regardless, the court found the County properly applied a categorical exemption under CEQA.

On July 31, 2006, Steven and Carol Star filed their application for a coastal permit and use permit for the construction of a residential home and garage. The project was to be constructed near riparian vegetation. The application sought a 50-foot setback instead of the 100-foot setback required by the Local Coastal Plan to protect riparian habitats. The Sonoma County Board of Zoning Adjustments approved the application on December 13, 2007.

The opponents appealed this decision to the Board. The Board denied the appeal and found the 50-foot setback was adequate to protect the resources in the riparian habitat. The Board also concluded the project was categorically exempt from CEQA as a single-family residence under CEQA Guidelines section 15303, subdivision (a). The opponents subsequently appealed the Board’s action to the Coastal Commission. The Coastal Commission dismissed the appeal, determining that it did not give rise to a “substantial issue” under the Coastal Act. The opponents sued. The trial court denied the writ petition.

The appellate court upheld the trial court’s decision. The court rejected the appellants’ argument that their appeal presented substantial issues, which required the Coastal Commission’s review of the appeal. The court found that evidence in the record strongly supported the findings of both the Board and Coastal Commission to approve the reduced setback. The appellants presented no substantial issue regarding the project’s conformance with the Local Coastal Plan. The court also determined that the Board did not abuse its discretion in approving the coastal permit and use permit for the project.

Turning to the alleged CEQA violations, the court rejected the appellants’ argument that the County and the Coastal Commission violated CEQA in approving the project. The court first explained that the Coastal Commission did not “approve” the project when it rejected the appeal. The practical effect of the Coastal Commission’s decision was to leave the County’s decision intact.

The court also found that appellants failed to exhaust their administrative remedies with respect to their claim that the CEQA categorical exemption asserted by the County was inapplicable. In coming to this conclusion, the court recognized the general rule that the exhaustion requirement does not apply when there is no opportunity for the public to raise objections before project approval. In this case, however, the County’s public hearings held on the coastal use permit also included consideration of the categorical exemption under CEQA. Discussion of the project’s environmental review at the public hearings triggered the duty to raise all subsequently litigated arguments. The appellants submitted comments at the public hearings, but none of these comments addressed the applicability of the categorical exemption or even related to CEQA at all. Thus, the court concluded the appellants’ CEQA claim was barred.

In any event, the court found that the categorical exemption applied to the project. The appellants argued an exception to the categorical exemption applied, contending the cumulative impact of future projects of the same type in the same project area would be significant. The court found that claim to be entirely speculative, however, and unsupported by substantial evidence. Because of the failure to exhaust administrative remedies and to produce substantial evidence of alleged significant adverse impacts, the court did not address whether the County and the Coastal Commission failed to address alternatives or incorporate mitigation measures for alleged significant adverse impacts.

CEQA at 40 – CEQA’s Major Milestones – No Oil, Inc. Decision

This blog is the second in our series on CEQA’s major milestones. No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, was the California Supreme Court’s second look at CEQA, and in that case the Court “inquire[d] into how an agency should decide whether a pending project requires an EIR.” In other words, how does an agency decide whether an EIR is required or a negative declaration and initial study are sufficient?

This case involved the approval of a project just three short weeks after the Court issued its opinion in Friends of Mammoth, which held that CEQA applies not only to purely governmental actions but also to private actions requiring a government permit or permission. The project was the approval of several test oil wells along the coast of Los Angeles. Dueling experts testified about the potential impacts of such wells: experts for the opposition testified about the geologic instability of the project site and the potential impacts of a well blowout adjacent to the ocean and a state beach; experts for the project proponent testified about how impacts would be minimized through appropriate technology and procedures. The City approved the project without making specific CEQA findings. After suit, the trial court remanded for clarification on this issue, asking whether there was any “reasonable possibility that the project will have a momentous or important effect of a permanent or long enduring nature.” On remand, the City Council concluded that there was no “reasonable possibility that the project will have a momentous or important effect of a permanent or long enduring nature.”

The Supreme Court took issue with the City’s actions. First, it noted that the verbal findings of the City, on remand, were not sufficient. The Court held that the City was required to make a written Negative Declaration when it approved the project. The Court concluded that the City’s findings were nothing more than a post hoc rationalization to support its prior actions.

Second, and more to the point for those scrambling to enforce CEQA in the wake of Friends of Mammoth, the Court found that the City had employed the wrong standard altogether. The Court looked to Public Resources Code section 21151, which then read in relevant part that an agency “shall make an environmental impact report on any project they intend to carry out which may have a significant effect on the environment.” The Court held that the standard, applied by the City and the trial court—“reasonable possibility that the project will have a momentous or important effect of a permanent or long enduring nature”—imposed “far too high a barrier to the preparation of an EIR” and was not consistent with 21151.

The Court expressly stated that it would not craft the proper test: “We do not think this court at this time should draft a substitute test [to the one formulated by the trial court]. The responsibility for formulation of such a test is expressly delegated by CEQA to the State Resources Agency.” (No Oil, supra, at p. 82, fn. 15.) Nevertheless, the Court stated that “the preparation of an EIR is key to the environmental protection under CEQA, accomplishment of the high objectives of that act requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact.” (Id. at p. 75.) Subsequently, the Resources Agency embraced that dicta as its test in the CEQA Guidelines, section 15084 (now 15064), and subsequent courts, most notably First Appellate District in Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1001, read the No Oil dicta as a binding test.

The No Oil Court made several other statements that guided the development of the case law interpreting CEQA and are often quoted, including: “One major purpose of an EIR is to inform other government agencies, and the public generally, of the environmental impact of a proposed project [citations], and to demonstrate to an apprehensive citizenry that the agency has in fact analyzed and considered the ecological implications of its action.” (No Oil, supra, at p. 86.)

First District Finds that In-Fill Exemption to CEQA Only Applies Within Boundaries of a Municipality

In Tomlinson v. County of Alameda (2010)189 Cal.App.4th 1029, the First District Court of Appeal examined a determination by Alameda County that a particular project qualified as in-fill, and was therefore exempt from CEQA review. While the project’s location could be described as an “urbanized area,” the court found that an in-fill exemption was inappropriate because the relevant parcel was not within the boundaries of a municipality.

The project in question was the construction of single-family homes in an unincorporated area of Alameda County that was zoned for that use, and that already contained other single-family homes. The County determined that the project was categorically exempt from CEQA review under CEQA Guidelines section 15332, which allows for in-fill development. Fred and D’Arcy Tomlinson challenged this determination. While the Tomlinsons raised several objections during the administrative process, where they were not represented by legal counsel, their central argument in court focused on section 15332, subdivision (b). This provision limits the scope of the exemptionto projects “within city limits,” and the Tomlinsons therefore contended that a project on unincorporated land could not qualify as in-fill. The County responded with two main counterarguments. First, it stated that the Tomlinsons had not exhausted their administrative remedies. Second, it argued that the phrase “within city limits” should be construed to mean within urbanized areas, including those located in unincorporated areas.

On the question of exhaustion, the court relied on Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 (Azusa). Azusa stated that the exhaustion requirement only applies “where (1) CEQA provides a public comment period, or (2) there is a public hearing before a notice of determination is issued.” (Id. at p. 1210.) Using this as its standard, the court, citing two reasons, found that exhaustion did not apply to an exemption determination. First, there is no comment period before an agency issues an exemption finding. Second, there could be no “public hearing before a notice of determination is issued” because such a notice is not filed when an agency declares an exemption. (See Pub. Resources Code, § 21177, subd. (a) (limiting petitioners in CEQA cases to issues presented to an agency “during the comment period . . . or prior to the close of the public hearing on the project before the issuance of the notice of determination”).) For lack of opportunity, therefore, the Tomlinsons were not required to exhaust their argument at the administrative level.

Turning to the substantive issue of interpreting section 15332, the court agreed with the Tomlinsons, finding that the plain meaning of the phrase “within city limits” requires a project to occur within the boundaries of a municipality (city). It was not sufficient for a project to be “within an urbanized area” if such an area is outside a city. The court noted that the term “urbanized area” is defined and used in the Guidelines to explain other categorical exemptions, so the use of the phrase “within city limits,” rather than “within an urbanized area,” suggested a different meaning for the former term.

The court was not persuaded by the County’s contention that the policy behind section 15332 required a less “inflexible” interpretation of “within city limits.” As the court stated, the exemptions listed in the Guidelines reflect a determination by the Secretary for Resources that “particular classes of projects generally do not have a significant effect on the environment.” Given the plain meaning of “within city limits,” the court therefore viewed the County’s point, not as a statement of what in-fill does include, but as an argument that in-fill should include urbanized areas. The court found this to be a policy question beyond its prerogative.

First District Finds that a State Agency Is a “Person” Under the California Endangered Species Act

In Kern County Water Agency v. Watershed Enforcers (2010) 185 Cal.App.4th 969, three local water agencies intervened in a mandate action, arguing that the California Endangered Species Act (CESA) did not apply to the Department of Water Resources (DWR) because the agency did not qualify as a “person” within the meaning of CESA (Fish and Game Code) section 2080. The First District Court of Appeal disagreed with the appellant water agencies based on the court’s evaluation of CESA’s context, policies, and statutory language.

Section 2080 prohibits any “person” from taking an endangered or threatened species without appropriate permit authority from the Department of Fish and Game (DFG). Section 67 defines “person” to mean “any natural person or any partnership, corporation, limited liability company, trust, or other type of association.” Appellants first argued that the literal textual meaning of this definition excluded state agencies. The court agreed with appellants on this initial point, but went on to note that section 2 allowed an expansion of the definition if other statutory provisions or the context required. In the court’s view, this statutory invitation to go beyond a literal reading of section 67 undermined appellants’ main contention that the definition of “person” was limited to the literal reading of that section.

The court then went on to explain its conclusion that a state agency is a “person” under section 2080. First, the court examined CESA policies as set forth in sections 2053 and 2055. These sections generally promote the state’s policy of resource conservation and protection of endangered and threatened species. The court also turned to section 2081, which specifically allows DFG to authorize a take permit for public agencies, thus exempting them from the prohibition found in section 2080. The court reasoned that, if section 2080 did not apply to public agencies, the exemption for such agencies in section 2081 would be surplusage.

Next, the court reviewed the case law cited by the trial court, including Department of Fish and Game v. Anderson-Cottonwood Irrigation District (1992) 8 Cal.App.4th 1554, San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, and San Bernardino Valley Audubon Society v. Metropolitan Water District (1999) 71 Cal.App.4th 382. While none of these cases directly dealt with issue at bar, the court noted that they tacitly assumed that the public entity in question was a “person.” The court found this assumption logical because it made no sense to read section 2080 as exempting public agencies, which operate large infrastructure projects, while covering individuals and business associations, which generally take fewer species.

Finally, the court reviewed the interpretation of CESA by DFG, its implementing agency. The court found that DFG’s regulations contemplated that the incidental take permitting process applied to state agencies. Specifically, the regulations require additional information for take permit applications submitted by public agencies. The court also noted that DFG regulations expressly authorize the taking of spring-run chinook incidental to operation of the State Water Project. The court therefore concluded that DFG itself considers a state agency to be a “person.”

Appellants offered several arguments against “person”-hood for state agencies, but the court found each of these arguments to be unpersuasive. For example, appellants contended that the Legislature deliberately elected not to include the Federal Endangered Species Act’s (FESA) definition of “person” into CESA, which was enacted subsequent to FESA. Because the definition of “person” under FESA explicitly includes state agencies, appellants argued, the Legislature must not have intended state agencies to be persons under CESA. The court noted, however, that the definition of “person” in section 2080 had been created before the enactments of both FESA and CESA. Thus, the court disagreed with appellants’ interpretation of legislative intent.

Fourth District decision upholding dismissal of a CEQA Petition Reiterates the Importance of Complying with Procedural Mandates Established by CEQA and the Subdivision Map Act

In Torrey Hills Community Coalition v. City of San Diego (2010) 186 Cal.App.4th 429 (Torrey Hills), the Fourth District Court of Appeal upheld the dismissal of a CEQA Petition due to the Petitioners’ (1) failure to serve a summons within 90 days of project approval as required by Government Code section 66499.37, and (2) failure to make a written request for a hearing within 90 days of filing the action as required by Public Resources Code section 21167.4, subdivision (a). In reaching the holding, the court affirmed that the holdings in Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, 748 (Friends) and County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943, 953 (County of Sacramento) apply retroactively.

The Petitioners challenged the City of San Diego’s approval of a condominium development project based on several alleged violations of CEQA. The City filed a Motion to Dismiss alleging that the case must be dismissed for two procedural reasons. First, the City alleged that the Petitioners violated the Subdivision Map Act (SMA) by failing to serve a summons within 90 days of the City’s approval of the project, as required pursuant to Government Code section 66499.37. Second, the City alleged that the Petitioners failed to comply with CEQA because the Petitioners did not file a written request for a hearing within 90 days of filing the writ petition, as required pursuant to Public Resources Code section 21167.4, subdivision (a). The trial court granted the motion to dismiss.

In arguing that the trial court’s decision should be reversed, the Petitioners did not contest the trial court’s determination that all the CEQA claims were within the scope of the SMA. Therefore, the question before the court was not whether Government Code section 66499.37 applied, but only whether compliance with the section “was impossible, impracticable, or futile due to causes beyond the plaintiff’s control.” The court found that, after Friends was published, the Petitioners made no effort to obtain a summons before the 90-day deadline expired. The court explained further that the normal remedy of a party aggrieved by an act or omission of the clerk is to apply to the court for an order directed to the clerk. The court thus found that Petitioners’ failure to serve a summons within 90 days of project approval required dismissal.

Although the Petitioners’ failure to comply with Government Code section 66499.37 was dispositive, the court chose to exercise its discretion to address the City’s claim under Public Resources Code section 21167.4, subdivision (a). The Petitioners argued that they had complied with Public Resources Code section 21167.4, subdivision (a), by making an oral request for a hearing. The court in County of Sacramento had addressed this exact issue, holding that a written request is required under this provision, and declaring that its holding should apply retroactively. (County of Sacramento, supra, 180 Cal.App.4th at page 953.) The Torrey Hills court agreed with the holding in County of Sacramento. The court explained further that while section 21167.4, subdivision (a), does not expressly require CEQA petitioners to make a written request, the plain language of other subdivisions in the section establish that the request must be in writing. Therefore, the court found that the Petitioners’ failure to make a written request was not excusable, and provided additional support for the trial court’s granting of the Motion to Dismiss.

Bay Area Air Quality Management District Adopts New CEQA Thresholds of Significance for Greenhouse Gas Emissions

On June 2, 2010, the San Francisco Bay Area Air Quality Management District (BAAQMD) adopted CEQA thresholds of significance for greenhouse gas emissions. BAAQMD can certainly be seen as a trailblazer, as the agency is the first air district in the state to establish quantitative thresholds of non-stationary sources. BAAQMD adopted two quantitative thresholds: a “bright line” threshold of 1,100 MT CO2e/year; and an “efficiency” threshold of 4.6 MT CO2e/“service population.” BAAQMD also approved a qualitative threshold based on consistency with a qualified greenhouse gas reduction strategy or similar program. These thresholds apply prospectively; thus, for any projects that were pending before June 2, a lead agency can choose not to apply the thresholds. BAAQMD developed these thresholds through a rigorous process that yielded its share of friends and foes. Of note is the positive feedback from the California Attorney General’s Office, which supports the adopted thresholds because they are devised to meet clearly identified, quantifiable objectives that are linked to the goals of the Global Warming Solutions Act of 2006, commonly known as AB 32.

A more detailed discussion of the recently adopted thresholds can found in the July 2010 issue of the California Land Use Law & Policy Reporter, available at: http://www.argentco.com/htm/n20020101.123890.htm. The feature article, entitled “The San Francisco Bay Area Air Quality Management District Adopts Stringent CEQA Thresholds of Significance for Greenhouse Gas Emissions,” was written by Tiffany K. Wright, a partner at Remy Thomas Moose & Manley, LLP.