On August 27, 2012, the California Court of Appeal for the Fourth District revisited its earlier decision to partially publish its decision in Rialto Citizens for Responsible Growth v. City of Rialto (2012) __Cal.App.4th__ (Case No E052253). Whereas previously, the CEQA portions of the decision had not been certified for publication, as of August 27, 2012, the entire opinion has been certified for publication. Our prior blog post on this case focused on the Planning and Zoning Law aspects of the opinion. This post focuses on the newly published CEQA portions of the opinion.
Factual and Procedural Background
The City of Rialto approved a 230,000-square-foot commercial retail center to be anchored by a 24-hour Wal-Mart “Supercenter.” Rialto Citizens for Responsible Growth petitioned the trial court for a writ of mandate invalidating several project approvals, including the City’s resolution certifying the final environmental impact report (EIR) for the project.
The trial court struck down the City’s approvals of the Project on the basis that the City had violated the California Environmental Quality Act (CEQA). Specifically, the trial court found that the EIR (1) failed to identify a development agreement as an approval required to implement the project; (2) failed to adequately analyze the project’s cumulative impacts on traffic, air quality, and greenhouse gas emissions and climate change impacts; (3) failed to separately list greenhouse gas emissions and climate change among the significant impacts of the project; and (4) improperly deferred mitigation to reduce biological impacts. The court also found that the City improperly rejected the reduced density alternative as infeasible.
Court of Appeal Decision
The Court of Appeal reversed the trial court on all issues and held that the EIR was adequate.
Project description. The appellate court agreed with the trial court’s determination that the project description was inadequate because it did not identify the development agreement as an approval required to implement the project. The court held, however, that this omission was not prejudicial because it did not preclude or undermine informed decisionmaking on the project as a whole or the development agreement, because the ordinance approving the development agreement was duly noticed and considered, along with other project approvals, at the public hearing on the project. Moreover, the provisions of the development agreement were not germane to any environmental impacts, according to the court.
Cumulative traffic analysis. The court also concluded, contrary to the trial court’s ruling, that the EIR adequately analyzed the project’s cumulative impacts on traffic. CEQA Guidelines section 15130 requires that the cumulative impacts analysis be based on a “list of past, present, and probable” future projects producing related or cumulative impacts or on a summary of projections contained in an adopted planning document or environmental document. The court here held that the EIR properly analyzed cumulative traffic conditions using the same database and modeling as the San Bernardino County Congestion Management Program, as an environmental document prepared by the San Bernardino County Associated Governments. In other words, the congestion management plan was held to be an appropriate document upon which to base analysis and the use of the database and modeling contained therein was essentially an appropriate summary of projections.
Cumulative air quality analysis. The appellate court also concluded that the EIR adequately analyzed the project’s cumulative impacts on air quality. Interestingly, the EIR did not actually analyze the project’s cumulative impacts in light of other related projects in the area, or in light of a summary of projections contained in other documents per se, as technically required by section 15130. Rather, the EIR based its analysis of cumulative air quality impacts on the same modeling predictions and thresholds as its direct impacts. It took this approach based on guidance from the air quality district. The court held this was acceptable. (This makes sense because the district’s models and thresholds are inherently based on cumulative scenarios, although the court did not acknowledge this in those precise terms.)
Greenhouse gas and climate change conclusions. The appellate court upheld the EIR’s analysis of cumulative impacts on greenhouse gases and global climate change. Petitioner argued that the list of significant impacts, which they argued had to be contained in a “stand alone” section of the EIR, was defective for failing to identify impacts related to greenhouse gases and global climate change. The court disagreed, noting that the EIR concluded that the analysis of greenhouse gas emissions and impacts related thereto was too speculative to evaluate or to reach impact conclusions. The court upheld this approach, noting an absence of “established legal or regulatory guidelines” or “accepted methodologies” to gauge the impact at the time the EIR was certified in 2008. The court noted that the guidance since adopted by the Resources Agency in sections 15064.4 and 15126.4 of the CEQA Guidelines were not in effect in 2008.
Mitigation. The court upheld the EIR’s mitigation measures for special status plant or wildlife species against a charge of improper deferral. Although no special status species had been identified on site during surveys, the EIR concluded that five special status species had the potential to occur on site. The EIR required that preconstruction surveys be done, and if special status species were identified then the applicant would be required to obtain a Section 2080 incidental take permit from the state and a similar Section 10 permit from the Fish and Wildlife Service. The court held that this consultation was sufficient mitigation, even though the City itself had not mandated any particular mitigation ratio or performance standards.
Feasibility of an alternative. Finally, the appellate court found that substantial evidence supported the City’s finding that a reduced density alternative was infeasible. The agency concluded that the alternative was infeasible because (1) it would not achieve the project objectives as well as the approved project and (2) it would not reduce any significant and unavoidable impacts of the project—although it was apparently identified as environmentally superior to the original, unmitigated project. The trial court found that the city’s findings were not supported by substantial evidence since the alternative was “environmentally superior.” The appellate court reversed finding that the City properly rejected the alternative as infeasible because it would not achieve the project objectives as well as the approved project, irrespective of environmental impacts. The court did not reach the second point, then, that the proper comparison is alternative versus the “mitigated project” rather than the “original” unmitigated project.
Thus, the court found no prejudicial violations of CEQA in the City’s approval of the project.