Archives: January 2012

Fourth District Rules CSU Has Obligation to Consider Alternative Funding Sources to State Appropriation to Pay Fair Share of Mitigation Costs

City of San Diego v. Board of Trustees of the California State University
(2011) 201 Cal.App.4th 1134

(April 18, 2012, Petition for Review granted; CA Supreme Court Case No. 199557)

The Fourth District Court of Appeal ruled the California State University violated CEQA by considering an appropriation from the State Legislature as the only means of making “fair share” payments for off-site traffic improvements.  The Court ruled CSU had an obligation under CEQA to consider other ways of raising the money necessary to pay its fair share for these improvements.

In 2005, the CSU Board of Trustees certified an EIR and approved a master plan to expand San Diego State University to increase its enrollment from 25,000 to 35,000 students.  While litigation was pending, the Supreme Court issued its opinion in City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341.  The trial court granted the petition and remanded the matter back to CSU.  CSU circulated a revised EIR and, in November 2007, certified the revised EIR and re-approved the master plan.  In December 2007, various local agencies sued.  In March 2010, the trial court concluded CSU had complied with Marina and entered judgment denying the petitions.  The local agencies appealed.

The EIR included an analysis of the master plan’s traffic impacts.  The EIR identified 34 separate traffic impacts.  The EIR also identified improvements that would avoid 30 of the 34 traffic impacts; the other four impacts were identified as significant and unavoidable.  With respect to the other 30 impacts, the EIR calculated CSU’s “fair share” for the cost of the improvements.  The EIR stated payment of fair-share funding was conditioned on requesting and obtaining funds from the California Legislature; if the Legislature did not appropriate the money, then the impacts would be significant and unavoidable.  The City of San Diego submitted comments criticizing this approach as based on dictum from the Marina decision.  In the Final EIR, CSU responded by stating that, under Marina, CSU was obliged to request funding from the Legislature, but could not assure the appropriation of funds.  In its findings, CSU committed to ask for the fair-share funding, but because funding could not be assured, CSU found that the traffic impacts were significant and unavoidable.  CSU conditioned the commitment to pay on State appropriation of the money.  The findings also noted that, even if fair-share payments were made, there was no way to ensure the underlying improvements would be constructed, because the improvements were within the jurisdiction of other agencies (e.g., the City of San Diego and Caltrans).

CSU based its position on the following statement in the Marina decision:  “[A] state agency’s power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.”  (39 Cal.4th at p. 367.)  According to CSU, absent a legislative appropriation, fair-share payments for off-site infrastructure were infeasible.  The City and other local agencies argued CSU’s rejection of fair-share funding as “infeasible” was based on a misreading of Marina.  They also argued the EIR was inadequate because it did not discuss alternative approaches to making fair-share payments, other than by means of an appropriation by the Legislature.  The Court agreed.  The Marina Court’s statement was dictum, and the Court declined to follow it.  According to the Court, “neither CEQA nor any provision of the Education Code or other statute precludes CSU (or any other state agency) from using nonlegislatively appropriated funding for making voluntary payments to third parties for mitigation of the off-site significant environmental effects of its projects. . . .  The availability of potential sources of funding other than the Legislature for off-site mitigation measures should have been addressed in the DEIR and FEIR and all of those potential sources should not be deemed ‘infeasible’ sources for CSU’s ‘fair-share’ funding of off-site mitigation measures without a comprehensive discussion of those sources and compelling reasons showing those sources cannot, as a matter of law, be used to pay for mitigation of the significant off-site environmental effects of the [p]roject.”  Because the EIR’s discussion of traffic mitigation, and CSU’s corresponding findings, were premised on CSU’s misreading of its legal obligations, they had to be set aside.  Moreover, the EIR did not contain an adequate discussion of alternatives – such as down-sizing the project – as a means of avoiding the need for off-campus traffic improvements.

CSU argued the Court ought not to reach the “fair-share” issue because the proper interpretation of the Marina decision was never presented to CSU during the administrative process.  The Court disagreed, citing letters and testimony stating or implying that CSU had a duty to mitigate the project’s offsite impacts, even if the Legislature did not appropriate money and other funding sources had to be considered.

Appellants San Diego Association of Governments (“SANDAG”) and San Diego Metropolitan Transit System (“MTS”) argued the EIR’s traffic analysis was inadequate because it miscalculated the “average daily trips” (“ADT”) that would be generated by new resident and commuter students.  The Court disagreed, finding that substantial evidence supported CSU’s methodology.  In particular, the EIR had not double-counted reductions in trips from transit use, or resulting from former commuter students moving on-campus.  CSU also acted within its discretion in relying on projections of increased transit use in the future.  Because substantial evidence supported the EIR’s ADT estimates, the EIR’s “fair share” estimates were similarly supported.

In response to comments, CSU adopted a mitigation measure committing to develop a campus-wide “Transportation Demand Management” program, in consultation with SANDAG and MTS, to encourage alternative modes of transit.  SANDAG and MTS attacked this measure as improper deferral of mitigation.  The Court agreed, finding that the measure committed CSU only to consult with SANDAG and MTS, and then developer a TDM at a future date.  The measure did not identify specific actions to be taken, or performance standards to be achieved.

SANDAG and MTS argued the EIR did not provide an adequate analysis of the project’s impact on transit.  The EIR’s traffic analysis estimated that, in the future, the percentage of students relying on the region’s trolley system would increase.  The EIR did not, however, analyze the impacts of increased trolley use.  SANDAG submitted a letter stating CSU had to analyze the trolley system’s capacity to handle the projected increases in use, to identify system capacity constraints, and to describe and adopt measures that CSU would take to increase that capacity.  MTS stated the bus and trolley systems had inadequate capacity to handle projected increases in student use, and that MTS had inadequate funds to support expanded use.  CSU responded that, for CEQA purposes, increased transit use was not an “impact”; moreover, no criteria were available to determine whether the project’s impact on the transit system was “significant,” triggering the need for mitigation.  The Court held that, although CSU estimated the anticipated increase in transit use, CSU did not analyze adequately the impacts of such use.  Once SANDAG and MTS raised the issue, CSU had an obligation to investigate the transit capacity issue.  The record did not contain substantial evidence supporting CSU’s conclusion that the project would not adversely affect the transit system.

First District Upholds State Lands Commission’s Use of Environmental Baseline for Renewal of Existing Marine Terminal Operations

Citizens for East Shore Parks v. California State Lands Commission
(2011) – Cal.App.4th – [2011 Cal. App. LEXIS 1645]

The First District Court of Appeal ruled that an EIR prepared by the State Lands Commission for the renewal of an existing marine terminal used a proper environmental baseline in assuming the continued existence and operation of the terminal; thus, the EIR did not need to assume the terminal would discontinue operations, even though that would occur if the Commission did not renew the lease.

In 1998, Chevron applied to the State Lands Commission to renew the lease for an existing wharf serving Chevron’s refinery located in the City of Richmond.  The Commission embarked on the CEQA process.  Initially, the Commission decided to prepare the EIR assuming that the physical wharf would remain in place, but that operations there would cease.  Over time, the Commission’s position evolved, such that the “baseline” would consist not merely of the physical wharf, but also of ongoing operations.  Using this baseline, the Commission determined the lease renewal could result in significant environmental impacts associated with the risk of oil spills.  In 2007, the Commission released the Final EIR.  In 2009, the Commission certified the EIR, approved the lease renewal, and adopted a statement of overriding considerations.  The “Citizens” sued.  The trial court denied the petition.  The Citizens appealed.

First, the Citizens argued the Commission’s EIR used the wrong baseline, claiming the baseline should have excluded use of the marine terminal.  In this case, the baseline consisted of “existing conditions” at the time the Commission prepared the EIR.  Those conditions included an operating marine terminal.  The Citizens argued, however, that a different rule applied in the context of a permit renewal, since the agency could cause operations to cease simply by declining to renew the lease.  Moreover, because the construction and operation of the terminal predated CEQA, they had never undergone environmental review.  The Court rejected this argument, reasoning that, under the California Supreme Court’s decision in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, the Commission properly focused on existing conditions, not conditions that may have existed decades in the past.  The record showed the Commission’s approach was consistent with permit renewals elsewhere in the Bay Area, and accurately reflected actual operations at the terminal.  Nor was the Commission bound by its initial determination regarding the proper baseline:  “Administrative agencies not only can, but should, make appropriate adjustments, including to the baseline, as the environmental review process unfolds.”

Second, the Citizens argued the EIR should have analyzed an alternative consisting of removing the causeway connecting the terminal to the refinery, and instead burying pipelines.  According to the Citizens, such an alternative would have avoided the project’s impacts on recreation by removing an obstruction to a bay trail.  The Court disagreed, noting that because the causeway was part of the baseline, the EIR properly concluded the lease renewal would not have significant impacts on recreation.  Similarly, the Final EIR’s responses to comments on recreational impacts were adequate, since the lease renewal did not involve new construction that would impact recreation.

Third, the Citizens argued the EIR’s project description should have encompassed the entire refinery, rather than just continued use of the marine terminal.  The evidence showed, however, that the lease renewal was the only action before the Commission, and the Commission had not “chopped up” the project as a means of evading CEQA review.

Fourth, the Citizens argued the EIR’s analysis of cumulative water discharge impacts was flawed.  The Court disagreed, noting that water discharges were part of the existing wharf operation, and therefore part of the baseline.  For the same reason, the EIR did not need to analyze whether the lease renewal was consistent with State legislation calling for establishing a “water trail” around San Francisco Bay.  Moreover, the EIR noted plans to establish a land-trail around the Bay, passing through upland areas adjacent to the terminal.  The Commission urged discussions to establish a route through the refinery for this trail, and Chevron designated a site and committed $2 million to this effort.  Given that the Commission had no jurisdiction over upland areas, the Commission’s efforts sufficed.  The record also showed the Commission consulted with trustee agencies by sending the agencies copies of the Draft EIR.

Finally, the Citizens argued that, under the Public Trust Doctrine, the Commission was required, to undertake an additional review process and impose additional mitigation conditions.  The Court disagreed, holding that, where the Commission’s decision “continued a permissible and long-standing trust use” and the Commission performed an adequate analysis under CEQA, “there was no violation of the public trust doctrine.”

Lancaster Landfill and Recycling Center Project Approved

On December 14, 2011, the Los Angeles County Regional Planning Commission approved a conditional use permit for the Lancaster Landfill and Recycling Center Project. The project allows for an increase in the acceptance of municipal solid waste for disposal at the LLRC, and for an increase in green and wood waste recycling operations. The project approval also allows for the continued operation of a Reclaimable Anaerobic Composter research and development project approved by the Local Enforcement Agency and CalRecycle as a composting facility in November 2009. The applicant, Waste Management of California, Inc. and the LLRC, were represented before the County by Andrea Leisy and Amanda Berlin.

Five RMM Attorneys Selected for Inclusion in 2013 Northern California Super Lawyers® magazine

RMM congratulates Jim Moose, Whit Manley, and Sabrina Teller on being listed in the 2013 Northern California Super Lawyers magazine.  Amanda Berlin and Laura Harris were also included in the Rising Stars section.  The selection process is based on 12 indicators of peer recognition and professional achievement and includes the top five percent of attorneys in their practice areas.

Sacramento Superior Court grants petition in challenge to common-sense exemption for bottling plant

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Chip Wilkins is appointed to the executive committee of the State Bar Environmental Law Section

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Metropolitan Transportation Authority (Los Angeles) approves the Crenshaw/LAX transit project

On September 22, 2011, the Metropolitan Transportation Authority approved the Crenshaw/LAX transit project. The 8.5-mile light rail line will connect the Metro Green Line and Expo Line currently under construction at Crenshaw and Exposition Boulevards. The project has $1.715 billion in funding, and will serve the cities of Los Angeles, Inglewood, Hawthorne, and El Segundo, and portions of Los Angeles County. Tiffany Wright and Laura Harris assisted Metro with the environmental review for the project.

Sierra Colina Village Project prevails in federal environmental challenge

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Northwest Land Park project approved by Sacramento City Council

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