Author Archives: Howard Wilkins

Sixth District Court of Appeal Holds Breach of Public Trust Doctrine Claim Not Ripe for Adjudication in the Absence of Petitioner’s Exhaustion of its Administrative Remedies

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In Monterey Coastkeeper v. Monterey Water Resources Agency (2017) ___ Cal.App.5th ___ (Case No. H042623), the Sixth District Court of Appeal reversed the trial court’s judgment granting Monterey Coastkeeper’s petition for writ of mandate for violation of section 13260 of the Porter-Cologne Act (failure to file a report of waste discharge), holding that the petitioner had failed to exhaust its administrative remedies.

The Monterey County Water Resources Agency (MCWRA) is a flood control and water agency responsible for operation of the Reclamation Ditch and the Blanco Drain, which collects agricultural wastewater and eventually discharges into surface waters that are subject to the Porter-Cologne Act. Petitioner Monterey Coastkeeper alleged that the MCWRA was in violation of section 13260 of the Porter-Cologne Act for failing to submit a report of waste discharge to the Regional Water Quality Control Board (RWQCB) as required under Porter-Cologne.

Petitioner claimed that it did not have an administrative remedy because the Porter-Cologne Act did not have a defined procedure to administratively pursue grievances for failure to file a report of waste discharge. The court disagreed. It stated that the Porter-Cologne Act expressly gives the RWQCB the authority to require a report of waste discharge, and to hold a discharger civilly liable for failure to do so. The Porter-Cologne Act further provides that the RWQCB may be requested to act, and their decision is appealable to the State Water Resources Control Board. The State Water Resources Control Board decision or order is then subject to judicial review by a writ of mandate. The court found that petitioner could have followed these statutory procedures—but it had not done so. The court held that petitioner had failed to exhaust its administrative remedies.

Due to its failure to exhaust, the court further found that petitioner’s claim for breach of duty under the public trust doctrine was unripe. The court held that because petitioner had not initiated the administrative review process, there was no administrative record upon which to base a decision as to whether the public trust doctrine had been violated.

Despite Being a “Successful Party,” Real Party in Interest Denied Attorneys’ Fee Award by Fourth District

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In Save our Heritage Organization v. City of San Diego (2017) 11 Cal.App.5th 154, the Fourth District Court of Appeal upheld a trial court’s denial of a Code of Civil Procedure section 1025.1 attorneys’ fee award to the prevailing real party in interest.

On the merits, the court of appeal found that the City of San Diego had not abused its discretion when it approved a revitalization project for Balboa Park. Real party then filed a motion in superior court for an award of attorney fees, which the court denied.

The Fourth District concluded that a real party’s status as a project proponent did not categorically bar it from obtaining a section 1025.1 attorney fees award where it otherwise satisfied the award’s requirements. Nevertheless, the court upheld the denial of the fee award to real party holding that petitioner was not the type of party on whom attorney fees were intended to be imposed. The court stated that attorney fees were typically only imposed on parties who had engaged in conduct that had adversely affected the public interest. The court found that the petitioner initiated litigation to correct what it perceived to be a violation by the city of state and local environmental, historic preservation, and land use laws, which did not compromise any important public rights. Rather, it was the type of enforcement action section 1021.5 was designed to promote. Thus, the court held that imposing a fee award on the petitioner would be inappropriate.

Second District Holds that Failure to Lodge Administrative Record Barred Post-Trial Relief

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In The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993, the Second District Court of Appeal held that the mandatory relief provisions of Code of Civil Procedure section 473, subdivision (b), do not apply where counsel fails to lodge the administrative record in a CEQA proceeding and receives a judgment denying the petition for writ of mandate.

Despite agreeing by stipulation, counsel for the petitioner did not lodge the record with the court prior to trial. After a hearing on the merits of the matter, the trial court ruled that because the petitioner had failed to lodge the administrative record, it could not support its arguments. Subsequently, the petitioner filed a motion for discretionary and mandatory relief pursuant to Code of Civil Procedure section 473, subdivision (b). The trial court denied petitioner’s counsel’s motion for discretionary relief, ruling that counsel’s failure to lodge the administrative record did not rise to the level of excusable neglect. Nevertheless, the lower court granted petitioner mandatory relief, finding that counsel’s error had deprived the petitioner of its day in court.

The appellate court disagreed. The court held that Code of Civil Procedure section 473, subdivision (b), does not apply where, as here, there has been a trial on the merits. Thus, the court found, counsel’s error had not served to deny the petitioner its day in court. Rather, the error resulted in a failure to present sufficient evidence and therefore the mandatory relief provisions were inapplicable. The Court of Appeal reinstated the lower court’s original judgment denying the petition and complaint, and allowed the City of Los Angeles recovery of appellate costs from the petitioner.

California Air Resources Board 2017 Climate Change Scoping Plan Update Issued

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In January 2017, the California Air Resources Board (CARB) released the Draft 2017 Climate Change Scoping Plan Update. The Proposed Scoping Plan identifies the overall strategy to reduce greenhouse gas (GHG) emissions by 40 percent below 1990 levels by 2030—the target codified in SB 32. The strategy requires contributions from all economic sectors and includes a combination of extending key reduction programs and new actions that would prioritize direct emissions reductions.

The Proposed Scoping Plan continues the cap-and-trade program through 2030. The analysis in the plan finds that cap-and-trade is the lowest cost, most efficient policy approach to meeting the 2030 goal. According to the analysis, even if other measures fall short, cap-and-trade provides certainty that California will meet the 2030 target emissions reduction. The agency is also evaluating potential changes to the cap-and-trade program to “support greater direct GHG emissions reductions.” Under evaluation are measures which include reducing the offset usage limit, redesigning the allocation strategy to support increased technology and energy investments to reduce GHG emissions, and reducing allocation for entities with criteria or toxic emissions that exceed a predetermined baseline.

Other key components of the overall approach include: a 20 percent reduction in GHG emissions from the refinery sector; continued investment in renewable energy; efforts to reduce emissions of short-lived climate pollutants; and increased focus on zero- and near-zero emission vehicle technologies.

CARB is currently seeking comments on the Proposed Scoping Plan. The comment period was recently extended until April 10, 2017. A public board meeting on the Final Proposed Scoping Plan is scheduled for June 22-23, 2017.

California Supreme Court Rules Personal Emails May Be Considered Public Records Subject to Disclosure Under the Public Records Act

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In City of San Jose v. Superior Court of Santa Clara County (2017) 2 Cal.5th 608, the City of San Jose argued that messages communicated through personal accounts of city employees were not public records subject to disclosure under the California Public Records Act (“CPRA”). The Supreme Court disagreed, holding that a city employee’s emails about public business are not excluded from disclosure simply because they have been sent, received, or stored in a personal email account.

The Supreme Court rejected the City’s narrow interpretation that the statutory definition of “local agency” does not specifically include individual government officials or staff members—finding that nothing in the statutory language indicates the Legislature meant to exclude local agency employees from CPRA obligations.

The court similarly rejected the City’s argument that “public records” include only materials in the agency’s possession or directly accessible to the agency. Taking its cue from federal courts interpreting the Freedom of Information Act, it concluded that documents retained in an employee’s personal account are considered “retained by” the agency within the meaning of the CPRA.

The content of the specific records at issue was not a question before the court in this matter. Nevertheless, the Supreme Court did acknowledge that resolving whether a writing relates in a substantive way to the conduct of the public’s business, particularly when writings are kept in personal accounts, may involve examination of several factors, including the content of the writing; the context and purpose for which it was written; the intended audience; and whether the employee was acting within the scope of his or her employment.

Finally, the Supreme Court agreed with petitioner that potential intrusion of personal privacy resulting from a records search in personal accounts can be minimized through procedural safeguards. The court provided guidance for reasonable searches—such as relying on their employees to complete their own searches or adopting policies to reduce the likelihood of public records being held in employees’ private accounts.

Notably, the court did not, however, foreclose the opportunity for an agency to claim that the burden of obtaining records from personal accounts is too onerous.

California Continues its Leadership in the Fight Against Climate Change

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Governor Brown recently signed Senate Bill 32 and Assembly Bill 197 continuing California’s leadership on climate change. SB 32 and AB 197 were inextricably linked—each bill requiring the passage of the other.

SB 32 significantly increases the state’s targets for greenhouse gas emissions reductions. It calls for a reduction in greenhouse gas emissions of at least 40 percent below the statewide limit by 2030.

AB 197 requires CARB to prioritize direct emission reductions and consider social costs when adopting regulations to reduce greenhouse gas emissions as a means to protect the state’s “most impacted and disadvantaged communities.” Social costs are defined as “an estimate of the economic damages, including, but not limited to, changes in net agricultural productivity; impacts to public health; climate adaptation impacts, such as property damages from increased flood risk; and changes in energy system costs, per metric ton of greenhouse gas emission per year.” The legislation requires CARB to prioritize those rules and regulations that would result in direct emissions reductions at large stationary and mobile sources. AB 197 also creates oversight of future CARB greenhouse gas emissions reductions strategies by adding two legislators to the state board as ex-officio nonvoting members and creating a joint legislative committee that will make recommendations to the legislature concerning the state’s programs, policies, and investments related to climate change.

 

The Council on Environmental Quality Finalizes Guidance Directing Agencies to Consider Climate Change and Greenhouse Gas Emissions in NEPA Reviews

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The Council on Environmental Quality (“CEQ”) released final guidance providing a framework for federal agencies to quantify greenhouse gas (“GHG”) emissions for projects subject to the National Environmental Policy Act (“NEPA”). When addressing climate change, agencies should consider both the potential effects of a proposed action on climate change as well as the effects of climate change on a proposed action and its environmental impacts.

CEQ recommends using projected GHG emissions as a proxy to quantify impacts—along with providing a qualitative discussion of the relationship between GHG emissions and climate change—to assist federal agencies in making “a reasoned choice among alternatives and mitigation actions.” Both direct and indirect effects should be analyzed in comparison to the no-action alternative—amounting to cumulative effects analysis. The guidance expressly provides that a separate cumulative effects analysis for GHG emissions is not necessary. The preference is for a quantitative analysis of GHG emissions based on available tools and information. Where agencies do not quantify projected GHG emissions, a qualitative analysis should be included along with an explanation of why quantification was not reasonably available. Simply stating that the proposed project represents only a small fraction of GHG emissions globally is insufficient. Finally, proposed mitigation of GHG emissions should be evaluated to ensure they are “verifiable, durable, enforceable, and will be implemented.”

In analyzing how climate change will affect a proposed project, CEQ does not expect agencies to undertake original research or analysis; rather the expectation is that agencies will rely on existing, relevant scientific literature, incorporating such research by reference into an environmental document. Accounting for climate change during the planning process allows agencies to consider a project’s vulnerability to climate change, in addition to particular impacts of climate change on vulnerable communities, allowing agencies to explore opportunities to increase a project’s resilience to climate change as part of the initial design.

Overall, CEQ would have agencies treat the analysis of GHG emissions and climate change like any other environmental impact under NEPA. The guidance acknowledges that the “rule of reason” and proportionality play a role in determining the extent of analysis, which should be commensurate with the quantity of projected GHG emissions “as it would not be consistent with the rule of reason to require the preparation of an EIS for every federal action that may cause GHG emissions regardless of the magnitude of those emissions.”

This guidance does not carry the force and effect of law. Nevertheless, it does provide a common approach to be used by federal agencies in analyzing climate change, and is bound to be persuasive in determining whether an EIS adequately addresses climate change impacts.

Sixth District Holds Fair Argument Standard No Longer Applies to Whether a Resource is “Historical”

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In Friends of the Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457, the Sixth District Court of Appeal held that the fair argument standard does not apply to a lead agency’s decision that a resource is not a historical resource—abandoning its previous holding to the contrary in Architectural Heritage Assn v. County of Monterey (2004) 122 Cal.App.4th 1095.

The resource at issue—a wooden railroad bridge, referred to as the Trestle—was built in 1922 as part of a spur line to provide rail freight access to canning districts near downtown San Jose. It was not listed or eligible for listing in the California Register of Historical Resources, nor was it included in a local register of historical resources. As part of its trail system, the City of San Jose proposed to demolish the Trestle and replace it with a new steel truss pedestrian bridge. The city adopted a mitigated negative declaration based on an initial study that concluded the Trestle was not a historical resource. Project opponents filed a writ petition asserting that there was substantial evidence to support a fair argument that the Trestle was a historical resource and therefore an EIR was required. Applying the fair argument standard, the trial court found in favor of petitioners.

The Sixth District disagreed. In rejecting the fair argument standard employed by the trial court, the court focused on the statutory language of Public Resources Code section 21084.1, which defines historical resources for purposes of CEQA. It provides, in part, that a resource may be presumed historical, if it meets certain criteria, unless a preponderance of the evidence demonstrates that it is not historical. Where a resource is not presumptively historical, an agency has the discretion to decide whether it is or is not historical. The court stated that by allowing an agency to overcome a presumption with a preponderance of the evidence, the standard of review logically must be whether substantial evidence supports the lead agency’s decision, not whether a fair argument can be made to the contrary. Based on this determination, the court found that the Legislature could not have intended that a lead agency’s discretionary decision to identify a resource as historical would be subject to a less-deferential review—i.e., fair argument—than a decision regarding a resource presumed to be historical.

On Remand First District Holds BAAQMD’s Significance Thresholds Valid in Specific Instances

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In California Building Industry Association v. Bay Area Air Quality Management District (2016) 2 Cal.App.5th 1067, on remand from the California Supreme Court (California Building Industry Association v. Bay Area Quality Management District (2015) 62 Cal.4th 369), the First District found BAAQMD’s CEQA thresholds of significance for “new receptors” valid for specific purposes.

The First District was directed to re-analyze BAAQMD’s thresholds of significance for “new receptors” consisting of residents and workers who will be brought to an area of existing emissions as a result of a proposed project, in light of the Supreme Court’s decision. The Supreme Court held that CEQA generally does not require an analysis of how existing environmental conditions will impact future residents or users of a proposed project. In applying this principle, the Court of Appeal held that the receptor thresholds may be valid in the following instances—when voluntarily used on BAAQMD’s own projects; in analyzing whether a project exacerbates an existing environmental conditions; during CEQA review of school projects; and when analyzing housing development projects under CEQA exemption statutes. The court did not rule specifically on the propriety of the receptor thresholds with respect to determining a project’s consistency with general plans because it was not presented with a concrete example of their use in this context—but ruled that the receptor thresholds were not invalid on their face. While not facially invalid, the court held—consistent with the Supreme Court’s ruling—that the receptor thresholds could not be used for their primary purpose, which was to assess the effect of existing environmental conditions to future users of a project.

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