Archives: September 2010

Ninth Circuit Holds the Bureau of Land Management Failed to Take a “Hard Look” at the Environmental Consequences of a Proposed Land Exchange

In Center for Biological Diversity v. U.S. Department of the Interior (9th Cir. 2010) 623 F.3d 633, the Ninth Circuit held that the Bureau of Land Management (BLM) acted arbitrarily and capriciously by failing to take a “hard look” at the likely environmental consequences of a proposed land exchange. The court found that the BLM did not compare the environmental effects of the proposed land exchange with the effects of no land exchange. As a result, the BLM violated the National Environmental Policy Act (NEPA) and the Federal Land Policy and Management Act (FLPMA). The court declined to address Appellants’ claimed violation of the Mining Law of 1872. Continue reading

Fourth Appellate District Finds Trial Court Erred in Refusing to Consider Motion for Supplemental Attorneys’ Fee Award Following Successful Appeal

In Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603 (hereinafter “CBD II”), appellants Center for Biological Diversity (“CBD”) asserted that the trial court abused its discretion by awarding substantially lower attorney fees than CBD sought on remand in Center for Biological Diversity v. County of San Bernardino (Oct. 27, 2008, E-042316) [unpublished opinion] (hereinafter “CBD I”). In CBD I, at trial CBD lost on each of its two claims brought under the California Environmental Quality Act (“CEQA”), but prevailed on a claim relating to consistency with the San Bernardino County General Plan. CBD subsequently filed a motion for fees (“1st Fee Motion”). The trial court awarded CBD approximately 1/4 of the fee award sought by CBD “[d]ue to the limited relief granted on the underlying petition. . .” (“1st Fee Order”). CBD appealed the 1st Fee Order. However, CBD entered a stipulation to dismiss the appeal of the 1st Fee Order after the County and Real Parties filed an appeal of the underlying judgment, which CBD cross-appealed. On the appeal from the judgment, the Fourth Appellate District held that the trial court erred in denying the CEQA claims and modified the judgment issuing the writ of mandate accordingly. Continue reading

CAPCOA Issues New Guidance On Quantifying GHG Emissions

The California Air Pollution Control Officers Association (CAPCOA) recently published a report entitled “Quantifying Greenhouse Gas Mitigation Measures: A Resource for Local Government to Assess Emission Reductions from Greenhouse Gas Mitigation Measures” (August 2010). The Report provides local governments and environmental consultants guidance on how to quantify GHG emissions in the environmental review of projects and for planning efforts. The Report focuses on quantifying GHG reductions from mitigation measures in the areas of land use, transportation, energy use, recycling and waste management, among others. The Report suggests the methodologies used in the Report should also be acceptable for use to quantify GHGs for the EPA Mandatory Reporting rule, both inside and outside California. Continue reading

EPA Proposes to Require Updates to the Sacramento Air Quality Management District’s State Implementation Plan and Twelve Other SIPs to Address Greenhouse Gas Emissions

On September 2, 2010, the U.S. Environmental Protection Agency (EPA) released two draft rules for implementing the EPA’s new permitting requirements under the Clean Air Act’s Prevention of Significant Deterioration (PSD) Program. That program, which is part of the EPA’s new greenhouse gas (GHG) Tailoring Rule, will restrict emissions from new and modified large stationary sources beginning January 2, 2011. Continue reading

California Air Resources Board Adopts Regional Greenhouse Gas Emissions Reduction Targets for Automobiles and Light Trucks Pursuant to Senate Bill 375

On September 23, 2010, the California Air Resources Board (CARB) adopted targets for reducing greenhouse gas (GHG) emissions associated with automobiles and light trucks in years 2020 and 2035. The targets were adopted pursuant to Senate Bill (SB) 375, also known as the Sustainable Communities Climate Protection Act of 2008, which requires each of California’s 18 federally designated Metropolitan Planning Organizations (MPOs) to consider the impact of land use patterns and transportation on GHG emissions. The MPOs collectively represent nearly 90 percent of California’s population and GHG emissions. Continue reading

Lawsuit Filed Challenging State Agencies’ Management of the Sacramento-San Joaquin Delta Fails to Protect the Public Trust

On September 7, 2010, the California Water Impact Network (C-WIN), the California Sportfishing Protection Alliance (CSPA) and AquAlliance filed suit in Sacramento County Superior Court alleging that the State Water Resources Control Board and the California Department of Water Resources have failed to protect the public trust in their enforcement of water quality and fishery protection laws and in decisions to export water from the Sacramento-San Joaquin River Delta.   Continue reading

First Appellate District Holds UC Regents Complied with Alquist-Priolo Earthquake Fault Zoning Act and CEQA in Certifying EIR and Approving the UC Berkeley Athlete Center

In California Oak Foundation v. Regents of the University of California ( 2010) 188 Cal.App.4th 227, appellants California Oak Foundation (California Oak) challenged the Regents of the University of California’s certification of the EIR for the University’s Southeast Campus Integrated Projects, prepared for seven related projects at the University of California at Berkeley, and its approval of the proposed Student Athlete High Performance Center, which is the first phase of one such project, the California Memorial Stadium Seismic Corrections and Program Improvements Project (Stadium Project). Appellants claimed that in certifying the EIR and approving the Athlete Center, the Regents violated the Alquist-Priolo Earthquake Fault Zoning Act and CEQA.

The First Appellate District, in affirming the trial court judgment, found that while the Athlete Center is subject to the Alquist-Priolo Act based on its proposed location within an earthquake fault zone, the Regents could properly find the Athlete Center will not be an “addition” or “alteration” to the University’s California Memorial Stadium, as defined by the statute, and thus is not subject to the statute’s value restriction on certain projects coming within those definitions. The court further held that the Regents acted in accordance with CEQA in certifying the EIR because it contains sufficient information regarding the projects’ likely environmental impacts, as well as feasible alternatives to or mitigation measures for those projects to avoid or minimize the identified impacts.

The Integrated Projects are part of the UC Berkeley 2020 Long Range Development Plan. While the Regents certified an EIR for the LRDP in 2005 (2020 LRDP EIR), the University determined the Integrated Projects could have significant impacts on the environment and that an EIR, independent from the 2020 LRDP EIR, was therefore necessary. The EIR “provides a project-level analysis of the [Integrated Projects] and is tiered from the 2020 LRDP EIR.” After circulation, public comments, public hearings and revisions, the EIR concluded that, by implementing the proposed mitigation measures, most of the Integrated Projects’ significant environmental impacts would be reduced to less than significant levels. The EIR further concludes, however, that in some areas significant impacts could not feasibly be mitigated.

The Stadium Project, consisting of three phases, is the first of the Integrated Projects scheduled to proceed. Only Phase I was presented to the Regents for approval in conjunction with certification of the EIR. Phase I involves construction of the Athlete Center, a multi-level, 158,000-square foot structure immediately to the west of the Stadium, designed to accommodate 13 varsity sports in addition to men’s football, and to provide training and program space for about 450 athletes. The Stadium, built in 1923, sits astride the Hayward fault, and was rated seismically “poor” under the University’s seismic evaluation guidelines. By moving these occupants out of the Stadium in Phase I, the University would be able to proceed with Phases II and III, which involve renovation and seismic retrofitting of the Stadium. Phases II and III, along with the remaining Integrated Projects, were to be presented to the Regents for budget and design approval at a later date, at which time the Regents would also decide whether additional CEQA environmental review was necessary.

California Oak filed petitions challenging the Regents’ certification of the EIR and approval of the Athlete Center project under both CEQA and the Alquist-Priolo Act. After a trial on the merits, the trial court ultimately denied California Oak’s CEQA and Alquist-Priolo Act claims, each with one exception. The trial court issued a peremptory writ of mandate ordering the Regents to take action consistent with its conclusions. The trial court thereafter deemed the Regents’ response to its June 18, 2008 order, which was submitted on June 27, 2008, to be a return to the writ of mandate. In this response, the Regents advised the trial court that the elements of the Stadium and Athlete Center projects that had given rise to the trial court’s exceptions had been subsequently removed. Based on this response, the trial court permitted construction of the Athlete Center to begin.

On appeal, California Oak presented two principal issues for consideration. First, appellants contend the Regents violated the Alquist-Priolo Act by approving the Athlete Center project, which is Phase I of the Stadium project. With certain exceptions, the Alquist-Priolo Act prohibits the construction of structures for human occupancy across the trace of an active fault or within 50 feet of an active fault, and prohibits the construction of an addition or alteration to a structure already existing on the trace of an active fault if the value of the addition or alteration exceeds 50 percent of the value of the structure.

Second, appellants contend the Regents violated CEQA by certifying a defective EIR for the Integrated Projects and by approving the Athlete Center project. CEQA, among other things, requires a public agency to prepare and certify an environmental impact report for qualifying projects to identify the proposed project’s significant environmental effects, to identify possible alternatives to the project, and to indicate ways in which the project’s significant environmental effects can be mitigated or avoided. Continue reading

Ninth Circuit Upholds Decisions of Corps and FWS in Approving Construction of Business Park on Protected Wetlands

In Butte Environmental Council v. U. S. Army Corps of Engineers (9th Cir. September 1, 2010, No. 09-16732) 607 F.3d 570, Butte Environmental Council (BEC), a nonprofit organization, challenged the Army Corps of Engineers’ decision to issue a section 404 permit pursuant to the Clean Water Act and the U.S. Fish and Wildlife Service’s biological opinion pursuant to Section 7 of the Endangered Species Act for a proposed business park to be constructed by the City of Redding. The district court granted summary judgment in favor of the agencies and the City and the Ninth Circuit upheld the district court’s decision.

The City’s proposed business park was located on a site (the Stillwater site) with wetlands that contained critical habitat for several species that were listed as endangered or threatened under the ESA. The development would entail discharge of dredged or fill material into protected wetlands, which required a Section 404 permit from the Corps. Upon review, the Corps, accepting that the overall project purpose was to construct a medium to large-sized regional business park, agreed that the City needed a single, contiguous site, concluded that the proposed Stillwater site was the least environmentally damaging practicable alternative (LEDPA), and issued the permit.

The BEC challenged this approval, contending the Corps’ decision was arbitrary and capricious for a number of reasons, none of which the court found persuasive. First, BEC argued that the Corps failed to apply the proper presumption under 40 C.F.R. §230.10(a)(3), that where a proposed activity was not water dependent, “practicable alternatives that do not involve special aquatic sites are presumed to be available, unless clearly demonstrated otherwise.” Here, the Corps acknowledged that the proposed project was not water dependent and then expressly concluded that, based on review of over a dozen alternative sites and consistent with CWA’s implementing regulations, the City “clearly demonstrated that there are no practicable alternative sites available.”

Second, the court found the Corps’ decision to issue a 404 permit was not inconsistent with the Corps’ earlier criticism of the draft EIS for the project. In its draft EIS, the City analyzed and compared a number of potential sites and concluded that the Stillwater site was the LEDPA that satisfied both the project’s purpose and the feasibility criteria. Upon review of the draft EIS, the Corps questioned the City’s determination that the Stillwater site was the LEDPA. In response, the City prepared a supplemental draft EIS in which the City agreed, among other things, to reduce the water impact of the proposed Stillwater site’s footprint, as well as its impact on ESA-listed species, to set aside a large portion of the total site as permanent open space and to include a plan for both on- and off-site compensatory mitigation of the project’s impact on aquatic resources. Based on the foregoing, the court remarked that the Corps’ ultimate decision as to the LEDPA was not a reversal, as claimed by BEC, but the culmination of years of investigations, meetings and reports. Agencies are entitled to change their minds, and the court had no trouble discerning the path of the Corps’ reasoning over several years of give-and-take with the City.

Third, BEC claimed that the Corps failed to make an “independent determination” of the project’s purpose or the size of the parcels needed. The court noted that rather than just accepting the City’s stated purpose for the project, the Corps, in its comments on the draft EIS, was initially skeptical that the City needed so large a site and questioned the City’s rejection of a non-contiguous parcel alternative as impractical. The City’s supplemental EIS, however, clarified why, in light of the project’s purpose, a minimum size parcel was necessary, and the Corps was obliged to consider the City’s purpose where it was genuine and legitimate.

Fourth, the court found that the BEC’s challenge to a rejected alternative on the basis of the cost of acquiring the site failed because the Corps did not consider acquisition cost when evaluating the site. Rather, the Corps determined this particular alternative site was not contiguous with property already owned by the City, the topography and geology of the alternative site was not conducive to the proposed development’s purposes, and the amount of property available for development was too little to achieve the project’s overall purpose. The Corps also believed the cost of infrastructure would be substantially greater with respect to the alternative site as opposed to other sites.

Finally, the court found there was no indication that the Corps’ granting of the permit on the condition that the City develop compensatory mitigation plans was meant to be in place of the City’s responsibility to adopt the LEDPA, as opposed to an additional obligation.

BEC also challenged, as arbitrary and capricious, the FWS’s biological opinion that the Stillwater project would not result in the adverse modification or destruction of critical habitat. BEC claimed the FWS applied a definition of “adverse modification” that improperly failed to take into account the “recovery needs” of the affected species as required under Gifford Pinchot Task Force v. U.S. Fish & Wildlife Services (9th Cir. 2004) 378 F.3d 1059. The court noted, however, that the biological opinion expressly stated the FWS relied on the Gifford Pinchot definition, and nothing in the biological opinion suggested that it ignored the value of critical habitat to the recovery of the affected species.

The court also rejected BEC’s claim that FWS’s finding of no adverse modification conflicted with its determination that critical habitat would be destroyed. The court found Gifford Pinchot had not altered the regulatory rule that an adverse modification occurs only where there is a direct or indirect alteration that appreciably diminishes the value of critical habitat. Thus, a small percentage of each affected species’ critical habitat could be destroyed without appreciable diminution in the value of the species’ overall critical habitat. The court declined to second-guess FWS, given that there was no evidence that some localized risk was improperly hidden by use of large-scale analysis, as claimed by BEC.

Finally, the court ruled that neither the ESA nor its implementing regulations required FWS to calculate a rate of loss. Rather, they required only that the FWS evaluate the “current status of the listed species or critical habitat,” “the effects of the action,” and the “cumulative effects on the listed species or critical habitat.” The court was satisfied that FWS had conducted such an analysis here and held the finding of no “adverse modification” was neither arbitrary nor capricious.

Ninth Circuit Rules BLM Violated NEPA and ESA in Adopting Amended Grazing Regulations

On September 1, 2010, the Ninth Circuit Court of Appeal held in Western Watersheds Project v. Kraayenbrink (Sept. 1, 2010, No. 08-35359) that the U.S. Bureau of Land Management violated the National Environmental Policy Act and the Endangered Species Act when it adopted amendments to its grazing regulations. The court also held the district court erred in failing to consider plaintiffs’ claim based on the Federal Land Policy and Management Act (FLPMA) under the framework established in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. (1984) 467 U.S. 837 (Chevron).

On July 12, 2006, the Secretary of the Interior proposed eighteen amendments to the BLM’s grazing regulations and issued a Record of Decision. In March 2006, the BLM had issued a Final Environmental Impact Statement in connection with the proposed amendments. In the Final Rule, the BLM concluded the regulations would have no effect on endangered or threatened species or their critical habitat. For this reason, the BLM did not consult with the U.S. Fish and Wildlife Service.

The stated purpose of the proposed amendments was to improve the working relationships with ranchers to protect the health of rangelands and to increase the effectiveness of the BLM grazing management program. The proposed amendments, however, also would decrease public involvement and oversight in federal grazing management, allow the BLM additional time to take corrective action for violations of BLM standards and guidance, put new limitations on the BLM’s enforcement powers, and cede ownership rights to permanent rangeland and structures and water from the United States to private ranchers.

Plaintiffs, a non-profit conservation group advocating science-based management and conservation of BLM’s public land, filed suit, challenged the proposed amendments as violating NEPA, the ESA, and FLPMA. Two organizations representing ranchers, the Public Lands Council and the American Farm Bureau Federation, intervened on behalf of the BLM. In June 2007, the district court enjoined enforcement of the proposed amendments. The BLM and the intervenors separately appealed. The BLM subsequently dismissed its appeal, while the intervenors maintained their appeal. In addition to the substantive claims, both parties challenge the other’s standing on appeal.

Before addressing plaintiffs’ substantive claims, the court addressed the standing issues. The court concluded the plaintiffs had established standing. The proposed amendments posed an imminent harm to plaintiffs’ members’ aesthetic enjoyment of the rangeland and their involvement in public land grazing management. The plaintiffs’ NEPA and FLPMA claims also fell within the statutes’ respective zones of interest—a requirement for suits brought under the APA for a violation of NEPA or FLPMA—because they had a direct interest in seeing the BLM consider the environmental consequences of its actions. The court also concluded the intervenors had established standing under Article III of the U.S. Constitution because the individual members of the intervenor organizations would have standing to pursue the appeal in their own right as each member suffered a concrete injury related to their individual agreements with the BLM, among other reasons. The court also held the dispute over the regulations at issue in this case was ripe for review.

The plaintiffs first argued the BLM violated NEPA by failing to take the required “hard look” at the environmental consequences of the regulations. NEPA establishes “action-forcing” procedures that require agencies considering major federal actions to provide a full and fair discussion in an EIS of the significant environmental impacts of the proposed action. Here, the court agreed with the plaintiffs, concluding the BLM failed to consider “objectively and in good faith” the concerns raised by its own experts, FWS, EPA, and state agencies. The court also concluded the Final EIS downplayed the environmental impacts of the regulations. Significantly, the BLM’s experts concluded, among other things, that the reduction in public oversight proposed by the amendments would give ranchers greater access to the BLM’s decision-making process at the expense of advocates for wildlife resources, resulting in long-term adverse impacts to wildlife. The proposed regulations would essentially shut out non-rancher members of the public from BLM’s decision-making process. The court also found the BLM failed to address concerns by the FWS and state agencies that the regulations would weaken the ability to manage rangelands in a timely fashion and that the Final EIS failed to address consequences of privatizing water rights on public land. The court further held the BLM failed to consider the combined effects of the proposed amendments and that the Final EIS gave no reasoned explanation for the BLM’s change in policy from the prior regulations before decreasing its regulatory authority as well as public participation. In short, the court found the changes were “discordant with the lessons learned from the history of rangeland management in the west, which has been moving towards multiple use management and increased public participation.”

The plaintiffs next argued the BLM violated the ESA by failing to consult with FWS before approving the regulations. The court agreed with the plaintiffs, holding the BLM’s no effect finding and failure to consult with FWS were arbitrary and capricious in violation of the ESA. The court noted that the minimum threshold for an agency action to trigger consultation with the FWS was low. With that in mind, the court questioned the BLM’s conclusion that the regulations, which would affect approximately 160 million acres of public lands in the West, would not affect so much as one of the 300 special status species identified in the Final EIS. The court found it significant that the FWS, an agency that is tasked with protecting endangered species, concluded the regulations would affect special status species and their habitats. The court also based its conclusion on the declarations of the BLM’s own scientists who advised that an ESA section 7 consultation was necessary.

In the plaintiffs’ final claim, they alleged the BLM violated the mandate of the FLPMA in approving the regulations. The FLPMA requires the BLM to provide avenues for public input in the planning and management of public lands. In response to the plaintiffs’ contention, the intervenors argued that it is not clear whether the BLM’s proposed amendments were in direct and unreasonable disregard of the FLPMA’s mandate when it approved the amendments. The intervenors argued the regulations did not eliminate public participation, but that they merely changed the circumstances of public participation. Thus, the intervenors argued, the district court was required to afford the deference established in Chevron to the BLM’s interpretation of its authority and obligations under the FLPMA as expressed in the proposed amendments.

Under Chevron, where a statute is ambiguous, and where Congress has not directly spoken on the matter at issue, the court must determine whether the agency’s interpretation of the statute is permissible. Here, the court concluded that the district court failed to apply the principles in Chevron to answer whether the limitation of public participation in the proposed amendments was in disregard of the FLPMA, or alternatively, whether the FLPMA’s public participation requirement was ambiguous and the BLM’s interpretation reasonable. With regard to these questions, the court of appeal remanded the FLPMA claim to the district court for further consideration.