Author Archives: Nathan George

Second District Court of Appeal Holds That Reduced Parking at National Monument is not a Direct Environmental Impact and Upholds Alternatives Analysis with Only a “No Project” Alternative.

In Save Our Access—San Gabriel Mountains v. Watershed Conservation Authority (August 19, 2021, B303494) __ Cal.App.5th __ [2021 WL 3673902], the Second District Court of Appeal held that the plaintiff failed to show that reduced parking within the San Gabriel Mountains National Monument would cause any adverse physical changes in the environment, that the lead agency did not abuse its discretion in setting the baseline for parking based on aerial photography that was not included in the record, and that, based on the project’s purpose, analyzing only a “no project” alternative was a reasonable range of alternatives.

FACTUAL AND PROCEDURAL BACKGROUND

The San Gabriel Mountains National Monument was designated in 2014. The project site includes 198 acres along two and a half miles of the East fork of the San Gabriel River, including public roads, recreational facilities, and the riverbed itself. The site is significantly degraded due to heavy public use and a lack of adequate facilities. The project was proposed to improve and better manage recreation facilities along with ecological restoration and reducing environmental impacts associated with recreational use at the site.

The EIR discussed existing issues associated with parking, including the small number of designated parking spaces and the widespread practice of parking in undesignated areas, which created public safety and traffic issues throughout the site. In total, the EIR estimated that there was a total of 417 parking spaces throughout the site, of which only 48 were designated parking spaces. The estimates were based on aerial photography that was included in the EIR. The EIR also included survey data that found that average weekend use at the site from Memorial Day to Labor Day was 273 vehicles per weekend day. To address the parking and related issues, the project proposed to create a total of 270 designated car spaces and three bus spaces, and to reduce undesignated parking with a combination of signage and physical barriers.

The EIR analyzed the project’s potential impacts to recreation and concluded, based on survey data, that impacts would be less than significant because many users of the site would choose to recreate in other nearby areas if parking or other facilities were unavailable, and, given the number and variety of recreation opportunities in proximity to the site, the impacts of those users going elsewhere would be disbursed and would not be cumulatively considerable. The EIR concluded that all impacts associated with the project would be less than significant with mitigation. The alternatives analysis compared the proposed project to a “no project” alternative but did not analyze any other alternatives.

The plaintiff filed a petition for writ of mandate challenging the Watershed Conservation Authority’s certification of the EIR and approval of the project. The trial court granted the petition, in part, based on the court’s conclusion that (1) the parking baseline lacked substantial evidence support because the aerial photography the baseline relied on was not in the record; (2) the agency failed to disclose the exact number of parking spaces available in each area of the site; (3) the parking survey was unsupported by substantial evidence because of the time of day when the surveys took place; and (4) without an accurate parking baseline, the EIR failed as an informational documents because the proposed parking reduction could be significant and require mitigation.

THE COURT OF APPEAL’S DECISION

Reversing the trail court’s decision, the Court of Appeal determined that the EIR adequately discussed the project’s proposed reduction in total parking spaces and that the alleged discrepancy in total parking spaces (plaintiff alleged that there were 473 available spaces, rather than 417) was immaterial because plaintiff failed to identify any adverse physical impacts on the environment resulting from the reduced parking. The court noted that, in fact, the purpose of reducing and formalizing parking at the site was to protect and restore the environment.

The court went on to analyze two CEQA cases addressing parking issues. First, the court considered San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656, which held that the inconvenience associated with “hunting” for scarce parking was not an environmental impact, but secondary effects, like traffic and air quality are. Accordingly, the court determined that an EIR need only address the adverse secondary effects of limited parking, not the social impact itself. The court also reviewed Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, which rejected the school district’s argument that a parking shortage is “never” a direct physical environmental impact. The court reasoned that each case must be decided on its facts, and that while, in some cases parking deficits may have direct physical impacts on the environment, plaintiff had not shown that the project’s parking reduction would result in direct or secondary physical impacts on the environment.

Turning to the EIR’s analysis of recreation impacts, the court found that the EIR’s analysis of nearby recreational facilities and likely impacts was adequate and that the EIR’s assumptions, based on survey data, were reasonable. The court rejected plaintiff’s speculation that, instead of leaving to recreate elsewhere, visitors to the project site would “circle and idle” until a parking space became available. Thus, the EIR’s conclusion that recreation impacts would be less than significant was supported by substantial evidence.

Regarding alternatives, the court focused on the EIR’s discussion of alternatives that were considered, but not analyzed in the EIR. The EIR explained that, through a series of workshops, three project design concepts were proposed and assessed for their ability to achieve the purposes of the project, but only one (the project), was selected for study in the EIR, along with the required “no project” alternative. The agency also considered an alternative proposed by the California Department of Fish and Wildlife but decided not to analyze it in the EIR either. The plaintiff argued that, as a matter of law, analyzing only one alternative was inadequate. The court rejected plaintiff’s argument, finding that, although CEQA and the Guidelines use the term “alternatives” (i.e., the plural form), the law is clear that the range of alternatives is subject to a rule of reason, and that each case must be evaluated on its facts. The court rejected the plaintiff’s argument that several feasible alternatives were proposed to the agency by a nearby business owner who was concerned that reduced parking at the site would impact his business. The court concluded that plaintiff had failed to show how the proposed alternatives would attain most of the basic project objectives or feasibly avoid or lessen one or more of the project’s significant impacts. The court found, on the facts of this case, that the inclusion of only a “no project” alternative was reasonable, given the purpose of the project and that the project, with mitigation, would not result in any significant impacts.

Lastly, plaintiff argued that the project was inconsistent with the Angeles National Forest Land Management Plan (LMP) and the designation creating the San Gabriel Mountains National Monument. Plaintiff’s argument centered around the reduction in parking and claimed that the corresponding reduction in access to the National Monument created inconsistencies. The court rejected this argument, finding that it elevated public access above all the other objectives and policies in the declaration. The court reasoned that the agency was required, under the proclamation and LMP, to balance public access with other concerns, including protection of the environment, and that the project did so.

– Nathan O. George

Fifth District Court of Appeal Excuses Petitioner’s Failure to Exhaust Administrative Remedies, Holds that Unlined Landfills are Not “Facilities” for Purposes of the Class 1 Categorical Exemption

In the published portions of Los Angeles Department of Water and Power v. County of Inyo (August 17, 2021, F081389) __ Cal.App.5th __, the Fifth District Court of Appeal held that the issue exhaustion requirement in Public Resources Code section 21177, subdivision (a) did not apply where the County of Inyo did not provide adequate public notice prior to adopting a Notice of Exemption (NOE) and that the County abused its discretion in finding that condemning three landfill sites was categorically exempt from CEQA under the “existing facilities” exemption in CEQA Guidelines section 15301 (the “Class 1” categorical exemption).

FACTUAL AND PROCEDURAL BACKGROUND

Beginning in the 1950s, the County began leasing land within the County owned by the Los Angeles Department of Water and Power (LADWP) for waste management purposes. At issue in this case were three sites leased by the County for use as unlined landfills. The County’s operation of the landfills is subject to permitting by the California Department of Resources Recycling and Recovery (CalRecycle). Beginning in 2012, the County sought to amend the permits for two of the three landfill sites to increase the permissible daily usage, overall capacity, and to accelerate the closure dates, effectively shortening the useful life of the landfills.

After negotiating with LADWP to extend the lease agreement for one of the sites, the County determined that acquiring all three landfill sites through condemnation was necessary. In a letter to the Board of Supervisors, LADWP objected to the County’s decision, in part, arguing that that the County was required to comply with CEQA before taking any action on the proposed condemnation. At the Board hearing on the condemnation proposal, County staff suggested that the Board’s actions would be exempt from CEQA review for several reasons, including the “existing facilities” categorical exemption under CEQA Guidelines section 15301. The Board approved the condemnation proceedings, but its written decision made no mention of CEQA.

LADWP filed suit. The Kern County Superior Court ruled that the County violated CEQA and issued a writ of mandate directing the County to rescind its resolutions relating to the condemnation proceedings, pending compliance with CEQA. The County appealed.

THE COURT OF APPEAL’S DECISION

Before turning to the merits of LADWP’s CEQA claims, the Court of Appeal addressed the “threshold procedural issue” of whether LADWP’s CEQA claims were barred because it failed to exhaust its administrative remedies with respect to the issues that it raised in court. After discussing the statute and relevant case law, the court acknowledged that because CEQA did not require a comment period prior to determining that a project is exempt from CEQA, the relevant question was whether the agency provided adequate notice to the public prior to considering an exemption. Specifically, the court explained, an agency’s notice must inform the public that the agency will consider a CEQA exemption; otherwise, the issue exhaustion requirement in Public Resources Code section 21177, subdivision (a), does not apply. Here, the court found that the first mention of CEQA and the Board’s consideration of an exemption was made by staff during the hearing, and the hearing notice was silent on CEQA. The court concluded that the public was not provided with adequate notice regarding the exemption, and therefore, LADWP was not required to exhaust on its CEQA challenges to the County’s exemption determination.

Turning to the exemptions relied on by the County, the court found that because the issues before it involved the scope of the “existing facilities” categorical exemption and statutory construction, review of the County’s actions was de novo. After reviewing the language of CEQA Guidelines section 15301, the court concluded that the term “facilities” is ambiguous, agreeing with the Second District Court of Appeal in Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 (Azusa). Further agreeing with Azusa, the court reasoned that, because an unlined landfill was “excavated” rather than “built,” an unlined landfill was more akin to an alteration in the condition of land rather than a facility. The court reasoned that because section 15301 was revised following the Azusa decision but did not expressly mention landfills, the court concluded that the Secretary of Resources who issued the revised Guideline must have agreed with Azusa that unlined landfills are not a class of projects that do not have a significant effect on the environment. Thus, the court concluded that the County abused its discretion in finding the condemnation proceedings categorically exempt under the Class 1 categorical exemptions.

– Nathan O. George

First District Court of Appeal Holds That Governor Newsom’s Certification of Oakland Howard Terminal Project Under AB 734 Was Timely

In Pacific Merchant Shipping Association v. Gavin C. Newsom (August 10, 2021, A162001) __ Cal.App.5th __ [2021 WL 3508693], the First District Court of Appeal held that there was no deadline for the Governor to certify the Howard Terminal Project as qualifying for expedited judicial review under Assembly Bill (AB) 734, and specifically, that the Howard Terminal Project was not subject to the certification deadline in the Jobs and Economic Improvement Through Environmental Leadership Act of 2011 (AB 900).

FACTUAL AND PROCEDURAL BACKGROUND

The Howard Terminal Project is a proposed development located at Oakland’s Howard Terminal. It includes a new baseball stadium for the Oakland A’s, as well as residential, retail, commercial, and other uses.

In 2018, the Legislature passed AB 734, which provided that, if the Governor certified that the Howard Terminal project met specific environmental standards, then litigation challenging the project’s environmental review would be subject to expedited judicial review. AB 734 was a stand-alone bill applicable solely to the Howard Terminal project. In many respects, AB 734 was modeled after separate legislation, generally referred to as AB 900, providing for expedited judicial review of “Environmental Leadership Development Projects” (ELDP projects).

First enacted in 2011, the Legislature has amended AB 900 several times, in part to extend various deadlines embedded in the statute. In September 2018, when the Legislature enacted AB 734, AB 900 provided that the Governor had to certify a project by January 1, 2020, and the lead agency had to approve the project by January 1, 2021, when AB 900 would sunset. AB 900 also authorized the Governor to adopt guidelines to implement the statute. The Governor’s AB 900 guidelines reflected AB 900’s deadlines.

AB 734 provided that the Governor’s AB 900 guidelines apply to the “implementation” of AB 734 “to the extent the guidelines are applicable and do not conflict with specific requirements” of AB 734. Unlike AB 900, AB 734 did not specify any deadlines in the text of the statute.

Shortly after the Legislature adopted AB 734, Governor Newsom amended his AB 900 guidelines to reference AB 734 and the Howard Terminal project, along with a different project – the Los Angeles Clippers’ proposed basketball arena in Inglewood – subject to its own, stand-alone, fast-track legislation (AB 987) that contained a similar reference to the Governor’s AB 900 guidelines.

In March 2019, the A’s submitted an application to the Governor for certification under AB 734. As a precursor to Governor certification, the California Air Resources Board (CARB) had to find that the Howard Terminal project would meet strict greenhouse gas emission reduction targets mandated by AB 734. In August 2020 – 16 months after the A’s submitted their application, and eight months after AB 900’s January 1, 2020, certification deadline – CARB made this finding. Governor Newsom certified the Howard Terminal project in February 2021.

A coalition of businesses operating at the Port of Oakland, led by the Pacific Merchant Shipping Association (PMSA), sued the Governor, challenging his authority to certify the project. PMSA alleged that the Governor’s authority to certify the project under AB 734 had expired as of January 1, 2020—the deadline for certification in AB 900. Specifically, PMSA argued that, by incorporating the AB 900 guidelines into AB 734 “to the extent the guidelines are applicable and not in conflict with the specific requirements” of AB 734, the legislature had incorporated AB 900’s deadline for certification. The trial court rejected PMSA’s arguments. PMSA appealed.

THE COURT OF APPEAL’S DECISION

After discussing the general rules of statutory interpretation, the Court of Appeal concluded that the text of AB 734 was ambiguous as to whether the January 1, 2020, deadline for certification of ELDP projects under AB 900 also applied to the Howard Terminal project under AB 734.

Turning to the legislative history for insight, the court noted that the author of AB 734 proposed a standalone bill for the Howard Terminal project, in part, because the project could not meet AB 900’s deadlines. Thus, one option the legislature considered was whether to simply extend AB 900’s deadlines and have the project proceed under AB 900. The court reasoned that the legislature was aware of this option but chose to adopt AB 734—with no deadlines—instead. Based on its review of the legislative history as a whole, the court concluded that the legislature had not intended to incorporate AB 900’s certification deadline into AB 734.

The court also determined that its construction of AB 734 was supported by the legislative purpose of the statute. As the court noted, the purposes served by enactment of AB 734 are made clear in the legislation: to assist the City of Oakland in retaining the Oakland A’s by streamlining environmental review for a “state-of-the-art baseball park” project; to generate thousands of high-wage, highly skilled jobs during construction and operation of the project; to support the City’s and region’s goals for sustainable, transit-oriented housing, including affordable housing; to provide an opportunity for investment “in new and improved transit and transportation infrastructure”; and to “implement sustainability measures designed to improve air quality and mitigate the emissions of greenhouse gases resulting from the project.” For all these reasons, the special legislation was deemed necessary so that the Howard Terminal Project could be developed in an “expeditious manner.” In light of the significant environmental, economic, and cultural benefits which prompted the adoption of AB 734, the court concluded that PMSA’s reading of the statute would undermine rather than promote the general purposes of the statute and the objectives to be achieved.

Lastly, the court concluded that a practical reading of AB 734, including its lack of deadlines, supported the respondents’ argument that the legislature did not intend to incorporate AB 900’s certification deadline into AB 734. Among other practical reasons for rejecting PMSA’s reading of the statute, the court noted that CARB’s step in the process alone exceeded PMSA’s alleged one-year deadline for certification.

The Court of Appeal agreed with the trial court and affirmed the judgment.

RMM attorneys Whit Manley and Chris Stiles represented Real Party in Interest Oakland Athletics Investment Group LLC in the litigation.

– Nathan O. George

First District Court of Appeal Holds That a Necessary and Indispensable Party is Not Bound to a Tolling Agreement That It Did Not Sign

In Save Lafayette Trees v. East Bay Regional Park District (June 30, 2021, A156150) __ Cal.App.5th __ [2021 WL 2677595], the First District Court of Appeal held that PG&E, a necessary and indispensable party in the case, was not bound to an agreement to toll the CEQA statute of limitations executed by only the petitioners and the respondent public agency.

FACTUAL AND PROCEDURAL BACKGROUND

On March 21, 2017, the East Bay Regional Park District’s (District) Board of Directors issued a resolution accepting funding from PG&E as compensation for the removal of 245 trees on District property near PG&E’s natural gas transmission pipelines. PG&E issued this funding as a part of its “Community Pipeline Safety Initiative.” The District and PG&E later signed an MOU for the implementation PG&E’s initiative and ongoing maintenance and monitoring of the area near the natural gas pipeline. On June 27, 2017, the District filed a Notice of Exemption after finding the MOU and related activity categorically from CEQA.

On July 31, 2017, Save Lafayette Trees, Michael Dawson and David Kosters (Appellants), and the District entered into a tolling agreement to toll all applicable statutes of limitations for 60 days. PG&E did not consent to this agreement. On September 29, within the 60-day tolling period, Appellants filed a petition for writ of mandate challenging the District’s approval of the MOU under CEQA, as well as for violations of local ordinances and state constitutional due process rights. The action named PG&E as a real party in interest. PG&E demurred to the CEQA cause of action as time-bared by both the 35-day and 180-day statute of limitations periods under Public Resources Code section 21167. The trial court sustained the demurrer.

THE COURT OF APPEAL’S DECISION

Upholding the trial court’s decision, the Court of Appeal determined that PG&E was not bound to the tolling agreement between Appellants and the District. The court concluded that PG&E was both a necessary and indispensable party in the litigation, and therefore, was entitled to assert or waive the statute of limitations defense. The court noted that CEQA does not statutorily authorize tolling agreements, which means that they are not a statutory right. Rather, tolling agreements are private agreements between parties that have no effect on parties not in privity. Citing Salmon Protection & Watershed Network v. County of Marin (2012) 205 Cal.App.4th 195 (“Salmon Protection”), the court explained that CEQA does not prohibit tolling agreements to extend the limitations period, but to be effective they must include the recipient of an approval (the project proponent), the public agency, and the would-be petitioner. Because PG&E was a necessary and indispensable party, it was not bound to the tolling agreement to which it was not a signatory.

The court further reasoned that binding an indispensable party like PG&E to a tolling agreement to which it did not consent would defeat the purpose of the limitations period in Public Resources Code section 21167 to “protect project proponents from extended delay, uncertainty and potential disruption of a project caused by a belated challenge to the validity of the project’s authorization.”

The court also rejected Appellants’ argument that the 180-day limitations period had not run because they did not have constructive notice of the project. Appellants claimed there was no constructive notice because the removal of the trees was not included in the Board’s agenda for the project nor the accompanying description of the Board’s resolution. Public Resources Code section 21167 provides that the 180-day period begins after the agency’s decision or commencement of a project. The court noted that the Supreme Court has held that a public agency’s formal decision to carry out or approve a project is deemed constructive notice for potential CEQA claims. In this case, the court determined that the MOU for funding the tree replacement was consistent with the Board’s resolution and the project as outlined in the staff report, and did not, as Appellants asserted, constitute a “substantial difference” that would not provide constructive notice. The court explained that any flaws in the project approval process do not delay the applicable limitations period where, as here, the public agency gave notice of the very approval Appellants challenged.

The court concluded that the 180-day limitations period thus began to run on March 21, 2017, when the Board made its final decision and expired on September 18, 2017, eleven days before Appellants commenced their action. Therefore, the court held that the CEQA cause of action was properly dismissed as untimely.

– Veronika S. Morrison

THIRD DISTRICT COURT OF APPEAL DISMISSES PETITIONERS’ CHALLENGE TO A MITIGATED NEGATIVE DECLARATION BECAUSE THE CLAIMS DID NOT ESTABLISH A FAIR ARGUMENT OF SIGNIFICANT ENVIRONMENTAL IMPACTS.

In Newtown Preservation Society v. County. of El Dorado (June 16, 2021, C092069) __ Cal.App.5th __ [2021 WL 2451269], the Third District Court of Appeal affirmed the trial court’s decision to uphold El Dorado County’s adoption of a mitigated negative declaration (MND) for a bridge replacement project. In the published portions of the opinion, the court held that Petitioners failed to establish a “fair argument” that the project would have significant environmental impacts. Instead, Petitioners raised concerns regarding existing wildfire hazards that could impact residents near the project, but did not establish that the project may significantly impact the environment by creating or exacerbating wildfire hazards.

Factual and Procedural Background

The County, in preparing the MND, determined that the bridge replacement project could interfere with emergency response or evacuation plans and—as a result—expose people or structures to risk of loss or injury. However, the County also determined that these impacts would not be significant since a temporary evacuation route would be constructed to mitigate the risk. Such a route would only be used for emergency evacuation and, regardless of whether it was in place, any evacuation or emergency orders would be executed as the El Dorado County Sheriff’s Office of Emergency Services saw fit. Additionally, the County consulted with this office as well as the El Dorado County Fire Protection District in preparing the MND and both entities were comfortable with the document’s conclusions and assessments.

The County initially refrained from discussing the temporary evacuation route in detail in its mitigated negative declaration since it was concerned this would “lead people to believe that they should follow a certain evacuation route.” But, as a result of comments raised by one of the petitioners’ counsel and others regarding the possibility of a temporary evacuation route, the County’s responses to comments elucidated its plans and evacuation procedures in greater detail. It outlined several evacuation options given numerous emergency conditions depending on whether the temporary evacuation route was constructed.

After the County adopted the MND, Petitioners filed a writ a mandate, claiming the County failed to 1) properly consider the no-project alternative and 2) “adequately address the impact of closing the bridge without committing to construction of an evacuation route.” Petitioners claimed there was sufficient evidence in the record—including letters, correspondences, and hearing comments—supporting a fair argument that the bridge replacement project would significantly impact public safety. For example, a resident who lived on Newtown Road discussed past fire damage near her home; another resident complained that the County had not determined with finality whether a temporary route would be constructed; and another expressed concern about the effects of wind in the area on fire management; an aerial firefighter argued that recent history of wildfires demonstrated the danger in the County’s temporary evacuation route plans; Ms. Nagel, one of the petitioners, discussed her extensive firefighting experience; and Ms. Nagel’s attorney argued that the County’s MND violated CEQA by deferring important emergency management analysis.

The trial court, however, found that none of the petitioners’ arguments constituted substantial evidence, especially in light of explanatory testimony and responses to comments by the County and its experts, as well as the detailed evacuation options outlined in the MND. Instead, Petitioners’ letters and comments amounted to mere complaints and fears, backed up by speculation and unsubstantiated, non-expert opinion.

The Court of Appeal’s Decision

On appeal, Petitioners argued that the trial court erred in upholding the MND since “substantial evidence supports a fair argument of potentially significant impacts on resident safety and emergency evacuation.” The court noted that evidence supporting a fair argument can be substantial even though other equally compelling evidence may exist to the contrary. Still, the court concluded that Petitioners’ “framing of the fair argument test [was] erroneous. The question is not whether substantial evidence supports a fair argument that the proposed project will have significant impacts on resident safety and emergency evacuation. . . . [T]he question is whether the project may have a significant effect on the environment.” Yet Petitioners failed to identify any potentially significant effects the project might have on the environment and instead merely raised possible increased effects the environment might have on the community as a result of poorer evacuation procedures.

Furthermore, the Court of Appeal, like the trial court, pointed out that substantial evidence must be based on relevant information and facts; or at least reasonable inferences, assumptions, or expert opinion supported by facts. Unsubstantiated opinions, arguments, or speculations generally will not do. The court noted, however, that lay opinion may be considered substantial evidence where expertise is not necessary, which was not the case with the emergency evacuation issues raised by the Petitioners. The Court of Appeal explained again that Petitioners’ cited comments and letters were “mere speculation” and simply “dire predictions by nonexperts” and that they “fail[ed] to identify any factual foundation” for their assertions. Some comments were even directly contradicted by factual evidence in the record. Nowhere did Petitioners establish that any of the individuals whose testimony was cited were experts in evacuation planning. Thus, the court concluded that Petitioners’ claims did not constitute substantial evidence supporting a fair argument that the project may have a significant impact on the environment.

– Blake C. Hyde

California Supreme Court Denies Review of Golden Door Case, Appellate Opinion Stands

California Supreme Court Denies Review of Golden Door Case, Appellate Opinion Stands

On November 10, 2020, the California Supreme Court denied review of Golden Door Properties, LLC v. S.C. (County of San Diego) (Nov. 10, 2020, No. S264324), allowing the appellate court’s opinion to stand.  The Court of Appeal for the Fourth District held that Public Resources Code section 21167.6 requires the lead agency to retain “‘all written evidence or correspondence submitted to, or transferred from’ the public agency with respect to the project . . . .” This includes “‘all internal agency communications, including staff notes and memoranda’ related to the project.” Agencies shall not destroy such “official records” encompassed within section 21167.6, subdivision (e), even if permitted to under its own policies. (Read the in-depth summary of the Court of Appeal’s opinion here: https://www.rmmenvirolaw.com/fourth-district-holds-that-agencies-may-not-destroy-but-rather-must-retain-all-writings-required-by-ceqas-administrative-record-statute/).

Trump Administration Promulgates New NEPA Regulations

Trump Administration Promulgates New NEPA Regulations

On July 15, 2020, the Council on Environmental Quality (CEQ) released the final rule to update its regulations of the National Environmental Policy Act (NEPA), marking the first update in over 40 years. These changes, promulgated by the Trump administration, purport to clarify existing regulations, and streamline the NEPA review process by facilitating inter-agency cooperation. In an effort to speed up agency action, the new regulations emphasize the use of categorical exemptions (CEs) and findings of no significant impact (FONSIs) wherever possible, in part by requiring agencies to amend their policies to create new CEs. These efficiency gains come at the expense of public participation in the environmental review process and the scope and depth of required environmental impact analyses. The final rule became effective September 14, 2020.

Page Limits and Timeline Requirements

The new rules set specific time frames for document completion. Environmental impact statements (EIS) must be completed, and the record of decision signed, within two years from the date of the issuance of the notice of intent. Environmental assessments (EAs) must be completed and published, or the agency must make a finding of no significant impact, within one year from the date of the agency’s decision to prepare an EA. There are also now page limits for EISs of 150-300 pages, depending on their complexity. (40 C.F.R. § 1502.7 (2020).) These limits do not include graphical information and can be waived via written authorization by a senior official of the lead agency. (§§ 1502.7, 1508.1(v).) EAs are restricted to a maximum of 75 pages, not including appendices, without written approval by a senior agency official. (§ 1501.5(f).) The new regulations also no longer require agencies to engage in new studies or research for environmental analyses, further indicating an intent to simplify the environmental review process. (§ 1502.23).

Lead agencies are now required to “develop a schedule, setting milestones for all environmental reviews and authorizations required for implementation of the action . . . .” (40 C.F.R. § 1501.7(i).) If a milestone might be missed, responsible agencies are required to report the issue to the appropriate officials for a timely resolution. (§ 1501.7(j).) CEQ has not specified any procedural requirements for implementing a “timely resolution.” These limitations are intended to simplify environmental analyses and shorten the time required to complete the NEPA review process.

“Direct and Indirect Effects” and “Cumulative Impacts” Eliminated

The new regulations eliminate the distinction between “direct” and “indirect” effects, and replace these classifications with a general definition of “effects or impacts” as “changes to the human environment    . . . that are reasonably foreseeable and have a reasonably close causal relationship to the proposed action or alternatives . . . .” (40 C.F.R. § 1508.1(g).) “Reasonably foreseeable” is defined as “sufficiently likely to occur such that a person of ordinary prudence would take it into account in reaching a decision.” (§ 1508.1(aa).) Therefore, there must be more than “[a] ‘but for’ causal relationship . . . to make an agency responsible for a particular effect . . .” and trigger environmental review under NEPA. (§ 1508.1 (g)(2).) “Cumulative impacts” have also been eliminated from NEPA regulations, which means that analyses of project impacts in the context of other actions are no longer required. These classification changes indicate that federal agencies would not be compelled to consider global impacts of projects, such as potential effects on climate change. This sentiment is further evidenced by the requirement that agencies should consider only “the affected area (national, regional, or local) and its resources,” and, “in the case of site-specific action, significance would usually depend only upon the effects in the local area” and a change in the definition of “Human environment” to replace “people” with “Americans.” (§§ 1501.3(b)(1), 1508.1(m), italics added.)

NEPA Exemptions

Agencies are required to update their NEPA procedures to make them consistent with the new regulations, primarily by making the procedures more efficient. (40 C.F.R. § 1507.3(c).) CEQ has set a timeline for agencies to make their procedures consistent with the regulations. (§ 1507.3(b).) Updated agency procedures shall prioritize efficiency and include procedural requirements to satisfy these timelines. (§ 1507.3(c).)

To ensure the efficiency of these procedures, CEQ has codified several actions that are explicitly not subject to NEPA, including (1) actions expressly exempt under another statute; (2) where compliance with NEPA would clearly and fundamentally conflict with another statutory requirement; (3) where compliance would be inconsistent with the Congressional intent of another statute; (4) non-major federal actions; (5) non-discretionary actions, in whole or in part; and (6) where the agency has determined another statute’s requirements serve functions of agency compliance. (40 C.F.R. § 1507.3(d).) Agency procedures must be updated to identify certain exempt activities, such as the examples CEQ has provided. (§ 1507.3(d).) Agencies will also need to identify which additional actions are exempt. Where agency procedures conflict with the regulations, the regulations control. (§ 1507.3(a).)

NEPA Thresholds

CEQ has added new NEPA thresholds that direct agencies to consider reasons why NEPA review might be unnecessary for a given action. These thresholds require consideration of (1) whether the proposed action is expressly exempt from NEPA under another statute; (2) whether compliance with NEPA would clearly and fundamentally conflict with the requirements of another statute; (3) whether compliance with NEPA would be inconsistent with Congressional intent expressed in another statute; (4) whether the proposed action is a major Federal action; (5) whether the proposed action, in whole or in part, is a non-discretionary action for which the agency lacks authority to consider environmental effects as part of its decision-making process; and (6) whether the proposed action is an action for which another statue’s requirements serve the function of agency compliance with the Act. (40 C.F.R. § 1501.1(a).) Federal agencies are permitted to make determinations based on these considerations in their agency procedures or on an individual basis. (§ 1501.1(b).)

“Major Federal Action” Redefined

NEPA is triggered when a federal agency engages in a “major federal action.” The new regulations define a “major federal action” as “an activity or decision subject to federal control and responsibility,” rather than actions subject to federal control with effects that might be significant. (40 C.F.R. § 1508.1(q), italics added.) This change means that whether environmental review is required depends on the extent of an agency’s actions or role in the project, rather than the magnitude of the potential environmental impacts posed by the project. Consequently, agencies will likely be afforded greater discretion in deciding what actions are considered “major,” and whether their involvement is limited enough to avoid NEPA review.

CEQ has also included a new list of activities that are not considered major federal actions, which gives agencies broad discretion to avoid NEPA. These exemptions include (1) extraterritorial activities with effects entirely outside the United States; (2) non-discretionary actions; (3) non-final agency actions; (4) judicial or administrative civil or criminal enforcement actions; (5) general revenue sharing funding assistance with no federal agency control over the use of funds; (6) certain loans or guarantees; and (7) non-federal projects with minimal federal funding or involvement. (40 C.F.R. § 1508.1(q).) “Minimal federal funding or involvement” is to be further defined by federal agencies in their NEPA procedures, but a specific monetary limit has not been established by CEQ.

Categorical Exclusions and Findings of No Significant Impact

The new regulations emphasize the issuance of categorical exclusions (CEs) and findings of no significance (FONSIs) wherever possible to increase efficiency and reduce excessive paperwork. (§ 1500.4.) FONSIs are issued when an action that is not otherwise categorically excluded will not have a significant impact on the environment and therefore does not require the preparation of an EIS. (§ 1508.1(k)(1).) CEQ clarified that an agency must prepare a FONSI if the agency determines a proposed action will not have significant effects. (§1501.6(a).)

CEQ has also broadened the definition of categorical exclusion to encourage agencies to issue exclusions. Actions that fall within a CE do not require an EIS or EA. CEs were historically granted for actions that do not individually or cumulatively have a significant effect on the human environment. Federal agencies are now required to update their procedures to identify CEs for actions that “normally do not have a significant effect on the human environment . . . .” (40 C.F.R. §§ 1501.4(a),1508.1(d), italics added.) Even if an activity involves extraordinary circumstances that would result in a significant impact, the new regulations allow agencies to rely on a CE if the effects can be mitigated. (§ 1501.4(b)(1).)

Additionally, an agency may adopt another agency’s decision to grant a CE to a proposed action if both agencies’ actions are substantially the same. (40 C.F.R. § 1506.3.) The regulations also now permit the adoption of prior EISs and EAs, rather than only EISs as previously drafted. Such adoption is permitted after a documented consultation between the agencies to ensure the use of the CE is appropriate, as well as disclosure to the public of the CE being used. (§ 1507.3 (e)(5).) These changes create more opportunities for a project to obtain a CE and consequently avoid in-depth environmental review.

Public Participation

While CEQ claims the new regulations facilitate public participation, the updated regulations diminish noticing requirements and increase substantive requirements for commenters. The new regulations eliminate the “Policy” provision that required agencies to encourage and facilitate public involvement in decisions that affect the quality of the human environment. (See 40 C.F.R. § 1500.2 (1978).) Further, CEQ has removed the provision stating that “NEPA procedures must [e]nsure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA.” (40 C.F.R. § 1500.1(a) (1978).) The scaling back of these requirements reflects a deemphasis on public participation in the environmental review process.

CEQ also removed the requirement that agencies give “notice by mail to national organizations reasonably expected to be interested in the matter and may include listing in the 102 Monitor” and now permits such notice through publication in the Federal Register only. (40 C.F.R. § 1506.6 (b)(2) (2020).) While EISs, comments, and underlying documents are still available via the provisions of the Freedom of Information Act, the new regulations eliminate the requirement to make these materials publicly available without charge to the extent practicable. (§ 1506.6 (f).) CEQ also added a definition of “publish and publication,” which gives broad authority to agencies to determine which methods “efficiently and effectively make environmental documents and information available for review by interested persons   . . . .” (§ 1508.1(y).) Further, when deciding whether to hold public hearings and meetings, agencies no longer need to consider whether there is “[s]ubstantial environmental controversy concerning the proposed action or substantial interest” or requests “for a hearing by another agency with jurisdiction over the action . . . .” (40 C.F.R. § 1506.6(c) (1978).)

The time frame for making public comments has also been restricted. Under the new regulations, federal agencies may set a deadline for providing public comments on an EIS, rather than being required to allow comments for a specific number of days. Federal agencies are also not permitted to grant additional time to comment beyond the deadline. (40 C.F.R. §1503.1(b) (2020).)

Public commenters are required to “provide as much detail as necessary to meaningfully participate and fully inform the agency of the commenter’s position. Comments should explain why the issues raised are important to the consideration of potential environmental impacts and alternatives to the proposed action, as well as economic and employment impacts, and other impacts affecting the quality of the human environment. Comments should reference the corresponding section or page number of the draft environmental impact statement, propose scientific changes to those parts of the statement, where possible, and include or describe the data sources and methodologies supporting the proposed changes.” (40 C.F.R. § 1503.3(a).) Comments should also “be as specific as possible.” (§ 1503.3(b).).

Additionally, CEQ has made participation more burdensome by formalizing and arguably expanding the NEPA exhaustion requirement, including a requirement that commenters identify “any relevant information, studies, or analyses of any kind concerning impacts affecting the quality of the human environment” during the comment period. Comments, information, or objections not submitted by the comment deadline shall be forfeited as not exhausted. (40 C.F.R. § 1500.3(b)(3).) Timely comments will be included in a “summary of submitted alternatives, information, and analyses” section for the lead and cooperating agencies to consider in preparing the draft EIS, as well as published in the final EIS. (§ 1502.17.) An exhaustion requirement makes participation more burdensome, as it obligates commenters to identify all possible environmental issues at the outset of the review process or risk forfeiting those claims. These additional timing and substantive requirements will likely reduce the number of public comments received, as compliance with them requires greater expertise on the part of commenters.

Remedies

CEQ has emphasized that the new regulations do not expand a potential litigant’s options for suing an agency for NEPA violations. The new regulations “create no presumption that a violation of NEPA is a basis for injunctive relief or for a finding of irreparable harm.” (40 C.F.R. § 1500.3(d).) Additionally, the regulations “do not create a cause of action or right of action for violation of NEPA, which contains no such cause of action or right of action.” (Ibid.) Further, “minor, nonsubstantive errors that have no effect on agency decision making shall be considered harmless and shall not invalidate an agency action.” (Ibid.) This last addition opens the door for agencies to argue that an identified error is minor because it would not have affected their decision.

Project Alternatives

The new regulations diminish consideration of project alternatives. The definition of “reasonable alternatives” no longer requires a detailed consideration of alternatives and much of the regulatory language has been softened. (40 C.F.R. §§ 1508.1(z), 1502.14.) The regulations also do not require a rigorous exploration of all reasonable alternatives to proposed actions, but instead encourage agencies to focus on a narrow range of alternatives based on the goals of the applicant and the agency’s authority. (§§ 1502.14, 1502.13.) For example, federal agencies do not need to consider reasonable alternatives outside of that agency’s jurisdiction. (§ 1502.14(c).) Finally, CEQ requires agencies to specifically limit the consideration of alternatives to a “reasonable number,” although CEQ has not set a maximum. (§ 150.2.14(f).) CEQ has therefore reduced federal agencies’ obligation to consider project alternatives that may reduce environmental impacts.

Weakened Oversight of Contractors and Applicants

CEQ has also relaxed oversight of non-agency contractors in EIS and EA preparation. Contractors no longer need to be approved or selected by a lead or cooperating agency before preparing the EIS or EA. Contractors and applicants also do not need to include privileged or confidential trade secrets or other confidential business information in their disclosure statements accompanying an EA or EIS, nor do they need to specify that they have no financial or other interest in the outcome of the project. (40 C.F.R. § 1506.5(b)(4).)

Interagency Collaboration

The new regulations promote interagency collaboration with federal, state, tribal, and local procedures, as well as joint documents to streamline the NEPA review process. In general, agencies are required “[t]o the maximum extent practicable, jointly issue environmental documents with the lead agency. (40 C.F.R. § 1501.8(b)(8).) “Engaging in interagency cooperation” while an EIS or EA is being prepared is now required, instead of just emphasized. (§ 1500.5(d).) Federal agencies are also required to coordinate “their environmental program websites, including use of shared databases or application programming interface . . . .” (§ 1507.4(b).) Federal, state, tribal, and local agencies are permitted to “jointly prepare or adopt environmental documents . . . .” (§§ 1500.4(p), 1500.5(j), 1501.7(b).) Where a proposal will require action by multiple federal agencies, the agencies must prepare a single EIS and issue a joint record of decision, or prepare a single EA and issue a joint finding of no significant impact, depending on the agencies’ determination. (§ 1501.7(g).)

General Language and Definition Changes

CEQ has included various definition changes that reflect a general relaxing of the regulations. For example, CEQ removed the definition of “significantly,” which required considerations of both context and intensity of potential environmental effects. This elimination diminishes the depth of environmental analysis required under NEPA. The new regulations also include subtle language modifications from “shall” to “should” or “may,” and “possible” to “practicable,” resulting in an overall weakening of NEPA requirements.

Additionally, CEQ has placed a greater emphasis on economic considerations in the NEPA review process. For example, the revised “[p]urpose and policy” section requires consideration of economic requirements of present and future generations. (40 C.F.R. § 1500.1.) Additionally, the environmental consequence section of an EIS must now include “economic and technical considerations, including the economic benefits of the proposed action.” (§ 1502.16.) While economic effects were always a factor in the NEPA review process, they are now a stricter and more prevalent requirement. For example, public comments are must now include an explanation of why the issues raised therein are important to economic and employment impacts. (§ 1503.3.) Economic impacts are also a required consideration for agencies when deciding whether to refer environmental objections on a matter to CEQ. (§ 1504.2(g).) Additionally, economic feasibility is mandatory for an alternative to be considered “reasonable,” where it was previously just one factor agencies could consider when comparing alternatives. (§§ 1505.2(a)(2), 1508.1(z).)

Implications

As a result of these new regulations, federal agencies will be required to develop or revise proposed NEPA procedures to implement the changes within a year of the effective date. (40 C.F.R. § 1507.3(b).) These procedures should have an emphasis on “efficiency.” (§ 1507.3(c).) Agencies’ proposed procedures will be subject to review by the public and by CEQ for conformity with NEPA and the new regulations. (§ 1507.3(a)(2).) Federal agencies are prohibited from imposing additional procedures or requirements beyond those delineated in the new regulations. (Ibid.) Agencies are also barred from relying on previous guidance that conflicts with the new regulations, except for existing agency CEs, which have been deemed by CEQ to be consistent with the regulations. (§§ 1506.7, 1507.3(a).) Ongoing activities and environmental documents that began before the effective date are permitted to rely on either the old or new regulations. (§ 1506.13.)

Veronika Morrison

Fourth District Reverses Dismissal, Holds Streets and Highway Code Does Not Exempt Caltrans Project from CEQA Review, and Petition Adequately Pled Equitable Estoppel

In Citizens for a Responsible Caltrans Decision v. Department of Transportation (2020) 46 Cal.App.5th 1103, the Fourth District Court of Appeal overturned the San Diego County Superior Court’s judgment sustaining the California Department of Transportation’s (Caltrans) demurrer and dismissal of Citizens for a Responsible Caltrans Decision’s (CRCD) petition for writ of mandate. The petition claimed Caltrans improperly exempted a highway interchange project from CEQA review and engaged in misconduct that precluded Petitioner from timely filing the action. The Court of Appeal found that Streets and Highway Code section 103 did not exempt the project from CEQA review, and the petition sufficiently plead facts about Caltrans’ misrepresentation of the review process to establish a factual dispute about whether Caltrans was equitably estopped from asserting the 35-day statute of limitations defense.

Background

In 2005, Caltrans filed a notice of preparation (NOP) for an EIR analyzing construction of two freeway interchange ramps that would connect the I-5 and SR 56 highways in San Diego (the I-5/SR56 Project). The I-5/SR56 Project was part of the larger North Coastal Corridor (NCC) project — a multi-project effort proposed by Caltrans and the San Diego Association of Governments (SANDAG) to improve transportation in the La Jolla and Oceanside area.

Streets and Highway Code section 103 went into effect in January 2012. The section provides the California Coastal Commission with integrated regulatory review of a “public works plan” (PWP) for NCC projects, rather than traditional project-by-project review and approval. Four months later, Caltrans circulated a Draft EIR for the I-5/SR56 Project. The Draft EIR explained that “following circulation of the FEIR, if the decision is made to approve the Project, a Notice of Determination (NOD) will be published for compliance with CEQA and a Record of Decision will be published for compliance with the National Environmental Policy Act (NEPA).”

In October 2013, Caltrans issued an FEIR for a separate NCC highway-widening project. The report explained that section 103 did not eliminate project-specific CEQA or NEPA review—rather, it provided the Coastal Commission with streamlined review. In 2014, Caltrans and SANDAG issued, and the Coastal Commission approved, the PWP for the 40-year NCC project. The PWP explained that it did not supplant CEQA, NEPA, or other regulatory review schemes for individual projects proposed under the NCC.

In June 2017, Caltrans released a Final EIR for the I-5/SR56 Project. The report reiterated that, if it approves the Project, the agency will publish a NOD to comply with CEQA and a Record of Decision to comply with NEPA. However, in contradiction to the language above, the Final EIR also added that the passage of section 103, together with Public Resources Code section 21080.5, “mandate that instead of being analyzed under CEQA, the [NCC Project] and all of the projects included therein, shall be addressed under the CCC’s review per its certified regulatory program.” The FEIR reasoned that because the I-5/SR56 Project was identified in the PWP, and the Coastal Commission approved it in 2013, CEQA review was no longer required.

Though Caltrans concluded CEQA no longer applied to the I-5/SR56 Project, it maintained that public disclosure of the Project’s impacts was “still desirable.” Therefore, it released the Final EIR to satisfy CEQA’s analytical and disclosure requirements, and provided the public with a 30-day review and comment period from July 14, 2017 to August 14, 2017. However, before this period commenced, Caltrans approved a “project report” for the I-5/SR56 Project on June 30, 2017, and filed a Notice of Exemption (NOE) on July 12, 2017. The NOE concluded that the Project was exempt from CEQA and its impacts were analyzed pursuant to the Coastal Commission’s certified regulatory program.

CRCD’s counsel first became aware of the NOE on September 28, 2017. After Caltrans refused CRCD’s request to rescind the NOE or agree to a 180-day statute of limitations, CRCD filed a petition for writ of mandate and declaratory relief 35 days later on November 1, 2017. Caltrans filed a demurrer to the petition and the trial court sustained it without leave to amend. The trial court entered a judgment dismissing the petition with prejudice. CRCD appealed.

The Court of Appeal’s Decision

The Fourth District reviewed the trial court’s decision denying CRCD leave to amend and sustaining Caltrans’ demurrer de novo, and considered: (1) whether Streets and Highway Code section 103 exempts the I-5/SR56 Project from CEQA review; and (2) whether CRCD’s petition sufficiently alleged facts showing Caltrans was equitably estopped from raising the 35-day statute of limitations. The Court treated Caltrans’ demurrer as having admitted all of the properly pled material facts in the petition. The Court stated that a demurrer brought on statute of limitations grounds will be overruled if the relevant facts do not clearly establish that the action is time-barred.

Section 103 Does Not Exempt Caltrans from Conducting CEQA Review of the I-5/SR56 Project

First, the Court applied traditional rules of statutory construction to interpret section 103 as a matter of first impression. The Court held that the section did not statutorily exempt Caltrans from conducting CEQA review of the I-5/SR56 Project because it only exempted the Coastal Commission’s approval of the PWP. The Court reasoned that the Legislature intended the PWP to function as a “long range development plan” that could be approved under a certified regulatory program, pursuant to Public Resources Code sections 21080.09 and 21080.5. This certified regulatory program only provided the Coastal Commission with approval authority. Further, section 103 only authorizes the Coastal Commission to prepare substitute documents when certifying or approving the PWP; it did not exempt Caltrans from conducting project-level CEQA review and preparing an EIR for the I-5/SR56 Project.

Finally, the Court rejected Caltrans’ argument that the Coastal Commission’s approval of the PWP implicitly approved the I-5/SR56 Project. The Court explained that the PWP included numerous alternative projects for the NCC, but did not include the I-5/SR56 Project, as defined in the Final EIR. Had the Legislature intended to exempt Caltrans from preparing an EIR for the Project, or provide Caltrans with a certified regulatory program, it would have expressly done so. Because the plain language of section 103 does not provide for such exemptions, Caltrans was required to conduct individual, project-level CEQA review of the Project.

Petitioner Alleged Sufficient Facts Showing Caltrans Was Equitably Estopped from Relying on the Statute of Limitations Defense to Overcome Caltrans’ Demurrer

The Court’s independent review of the petition indicated that CRCD pled facts that sufficiently showed Caltrans was equitably estopped from relying on the 35-day statute of limitations for actions challenging notices of exemptions. A government agency may be estopped from asserting a statute of limitations defense if the petition indicates that the agency’s fraudulent or misrepresentative conduct prevented a reasonably prudent person from timely seeking legal advice or commencing litigation. Here, Caltrans informed the public in its Draft and Final EIRs that Caltrans would file a NOD if it decided to approve the I-5/SR56 Project. However, Caltrans did not inform the public, commenters, or interested parties about its decision to file a NOE instead of a NOD. Caltrans’ statements and conduct further suggested that it would not approve the Project until mid-August 2017, after the public comment and review period closed. The Court held that there was, at minimum, a disputed question of fact whether, by approving the Project in early July after repeatedly stating that project approval would follow the announced Final EIR circulation and review period, Caltrans misled CRCD about facts Caltrans intended to be acted on. CRCD’s petition adequately pled that CRCD was ignorant of the true state of facts, which precluded CRCD from commencing the instant action before the 35-day statute of limitations period expired.

For these reasons, the Court held that Caltrans’ demurrer must be overruled and the trial court’s judgment dismissing CRCD’s petition must be reversed and vacated.

Bridget K. McDonald

Second District Court of Appeal Upholds Ruling that Mitigation Measures are Inadequate and EIR is Required for Mixed-Use Development Project in Agoura Hills

On February 24, 2020, the Second Appellate District in Save the Agoura Cornell Knoll et al. v. City of Agoura Hills et al. (2020) 46 Cal.App.5th 665 affirmed the trial court’s decision to require an EIR instead of an MND for a mixed-use development on 8.2 acres because the adopted mitigation measures deferred action, lacked performance criteria, and/or were otherwise inadequate.

Background

The “Cornerstone Mixed-Use Project,” proposed by Agoura and Cornell Roads, LP, and Doron Gelfand (“Appellants”), consists of 8.2 acres of development, including 35 residential apartment units, retail, a restaurant, and office space on an undeveloped hillside in the City of Agoura Hills. The project site is covered mostly by the Agoura Village Specific Plan (adopted in 2008 after its final EIR was certified) with a small portion located within a Significant Ecological Area. After Appellants submitted applications for a development permit, conditional use permit, oak tree permit, and tentative parcel map, the City prepared and finalized an MND for the project in November 2016. The Planning Commission voted to approve the project and adopt the MND. The local chapter of the California Native Plant Society (CNPS) appealed the Planning Commission’s decision, but the City Council approved the project and adopted the MND. The City Council found “no substantial evidence that the project would have a significant effect on the environment” because the project included feasible mitigation measures, reducing all effects to less than significant.

Save the Agoura Cornell Knoll filed a petition for writ of mandate followed by a first amended petition on August 10, 2017, adding CNPS as a petitioner (“Petitioners”), alleging multiple CEQA violations, a violation of planning and zoning law, and a violation of the City’s oak tree ordinance. The trial court granted the petition as to the CEQA and oak tree ordinance claims, denied the planning and zoning law claim, and issued a peremptory writ of mandate directing the City to set aside its project and permit approvals, and to set aside the MND to make way for preparation of an EIR. The project applicants appealed.

The Court of Appeal’s CEQA Decision

The Court reviewed Appellants’ claims under the “fair argument” standard, which requires finding that a lead agency abused their discretion if substantial evidence in the record supports a fair argument that that the project may have a significant effect on the environment. This standard creates a relatively low threshold for requiring an EIR pursuant to “‘legislative preference for resolving doubts in favor of environmental review.’” Three CEQA resource areas were litigated—cultural, biological, and aesthetic. Appellants asserted, repeatedly, that mitigation was adequate and an EIR was not required, and the Court repeatedly disagreed. Overall, the Court found that certain mitigation measures set forth in the MND were “not feasible,” “improperly defer[] mitigation,” or were “inadequate to mitigate the project’s potentially significant impacts.” Affected resource areas are briefly discussed below.

Cultural Resources

The project site contains an identified prehistoric archaeological site that was previously determined to be eligible for inclusion in the California Register of Historical Resources. Three mitigation measures were included in the MND to address potential impacts to the site: (1) construction monitoring, notification of finds, and preservation in place of any resources (i.e., avoidance); (2) notification if human remains are encountered; and (3) a data-recovery excavation program if the site cannot be avoided. The Court found this mitigation constituted improper deferral because, pursuant to an expert opinion on the record, the site could not be avoided as prescribed in the first measure without a project redesign and therefore the third measure would be necessary. The Court also found that the third measure delayed “formulation of several components of the data recovery plan until some future time.” For example, the third measure called for the preparation of a Mitigation Monitoring and Reporting Plan (MMRP), yet did not explain how this MMRP would actually mitigate impacts, and there was no evidence in the record that inclusion of such information was impractical or infeasible prior to project approval. Appellants challenged the “evidentiary value” of the expert opinion, but the Court noted that any “conflict in the evidence” should be resolved in an EIR and that there was no debate as to whether the project would have a significant effect on a cultural resource, just on how it might be mitigated.

Biological Resources

The project site contains three special-status plant species that could be significantly impacted by project grading, landscaping, and fuel modification activities: Agoura Hills Dudley, Lyon’s pentachaeta, and Ojai navarretia. Again, three mitigation measures were included in the MND to reduce impact significance: (1) avoidance if feasible for two of the species, but if not, preparation of a restoration plan that includes plant surveys, onsite restoration, and offsite preservation; (2) the same measure for the third species; and (3) locating and flagging of all three species within the fuel modification zone and the use of buffers, other protocols, and monitoring for protection. The Court found the first two measures inadequately mitigated impacts and were infeasible, largely because of statements on the record asserting that restoration of “‘rare plants is next to impossible’” and “‘experimental’” and because the City relied on outdated surveys conducted during the drought in adopting the measure. The measures called for updated surveys but the record provided no evidence as to why such surveys could not be conducted prior to project approval. The measures also failed to provide performance criteria for determining the feasibility of avoidance or in the alternative, maintenance plans. The third measure was found to be inadequate because it did not properly consider the full expanse of fuel modification zones nor did it account for ongoing fuel modification activities, as it applied only to construction.

The project site also contains native oak trees, 35 of which would be removed by the project. Two mitigation measures were included in the MND to reduce significant impacts: (1) replacement of oak trees either onsite or via in-lieu fees paid to the City to acquire land for new tress; and (2) submittal of an oak tree survey, report, and preservation program to the City for approval. The Court found the first measure to be inadequate because mass grading required for the project would cause a loss of subsurface water to any onsite replacement trees, which could result in failure; yet this water deficit was not addressed in the measure. Also, substantial evidence existed showing that oak woodlands are “‘impossible to recreate’” or at least “‘often unsuccessful.’” Lastly this measure was inadequate because the in-lieu fees to be paid to the City would not be not part of a program that has undergone its own CEQA review, which is required “‘to provide a lawful substitute for the “traditional” method of mitigating CEQA impacts.’” The second mitigation measure was found to potentially lack effectiveness because that same subsurface water deficit was not considered, thereby calling into question any claims of long-term survival of preserved oak trees.

Aesthetic Resources

The project site contains a “distinct” knoll of oak trees that likely would be removed for project development. The MND acknowledged the potential loss of this scenic resource but claimed mitigation reduced the impact to less than significant. This mitigation included some avoidance measures and also pointed to the oak tree measures (discussed above) for restoration and preservation. The trial court found this mitigation to be inadequate. Although Appellants claimed the Petitioners failed to properly exhaust this issue (discussed below), the Court found that evidence in the record demonstrated that the knoll may not be preserved under project design and that, even if it were, the subsurface water deficit would jeopardize its continued existence, and no in-lieu fee could “reduce the impacts on aesthetic resources” of this loss.

The Court of Appeal’s Decision on Appellants’ Other Claims

Administrative Remedies Were Exhausted

Appellants repeatedly contended that Petitioners did not exhaust their administrative remedies and therefore forfeited their claims. They also contended that Petitioners did not address the issue of exhaustion in their first opening brief, and therefore could not submit supporting evidence. Addressing the second claim first, the Court found that Petitioners did preserve the general issue of exhaustion because there is no requirement that the issue must be argued in an opening brief and, nevertheless, their opening brief cited evidence that was later used in Petitioners’ reply brief to show exhaustion. This evidence demonstrated that exhaustion was “not a new legal theory raised for the first time” on reply. The Court also found that Petitioners expressly alleged exhaustion in their petition and “lodged the complete administrative record” as part of the writ proceedings. Further, the trial court’s rejection of Appellants’ supplemental brief on this issue was warranted because in filing it they had directly violated a court order stating that “the issue of exhaustion was thoroughly argued.”
As to the first contention, appellants raised exhaustion as a defense to each of Petitioners’ CEQA claims. The Court considered “the totality of [the] record” by looking to various portions demonstrating that most of Petitioners’ claims were preserved. It looked specifically to public comments, City Council hearing transcripts, other correspondence from environmental groups and experts, and documentation from the City’s own consultants to find again and again that the City was “‘fairly apprised’” of the “underlying concerns behind Petitioners’’ claims and thereby had the “‘opportunity to decide matters [], respond to objections, and correct any errors before the courts intervene.’”

Court Rejected Standing and Statute of Limitations Defenses

Appellants asserted both that Petitioner Save the Agoura Cornell Knoll lacked standing because Petitioners failed to show that they timely objected to project approval and that Petitioner CNPS was barred from the action because they joined the suit after the statute of limitations had run. The Court declined to consider the merits of either claim. It found that Appellants had forfeited their statute of limitations argument by not properly asserting it “‘in a general demurrer or pleaded in answer’” and, therefore, without a statute of limitation violation, CNPS remained a petitioner with uncontested standing. The Court was quick to point out that Appellants claims on these points were made for the first time in their appellate reply brief “[n]otwithstanding their [own] arguments on forfeiture.”

Attorney’s Fees Are Recoverable and Appellants Are Jointly and Severally Liable

The trial court awarded attorneys’ fees to Petitioners and assigned joint and several liability to both the developer Agoura and Cornell Road and its representative Doron Gelfand. Appellants first argued against the award by asserting that Petitioners did not provide notice of the CEQA action to the Attorney General “in accordance with section 21167.7 [of the Public Resources Code] and Code of Civil Procedure section 388” that requires notice be served within 10 days of filing a pleading. On this point, the Court found that, although Petitioners did not serve the Attorney General notice of the first amended petition, they did properly notice their original petition, which was not materially different than the first amended, thereby giving the Attorney General “ample time to intervene.” The Court further pointed to case law emphasizing that a lack of strict compliance with the 10-day notice rule “was not an absolute bar to attorney’s fees.” It further concluded that a declaration from Petitioners’ attorney attesting to notice could stand as evidence in lieu of formal proofs of service of that notice. Appellants then argued that Gelfand could not be held personally liable because he was neither the applicant nor the property owner. But, in utilizing the test articulated in Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1181, the Court found that Gelfand was a “real party who pursued a direct interest in the project that gave rise to the CEQA action and actively participated in the litigation” and, therefore, was liable. The record contained ample evidence showing that Gelfand was, at one time, “‘the owner of the property’” and had personally made several requests to the City regarding the project, and was listed “as the sole project applicant” on City resolutions approving project entitlements.

Oak Tree Ordinance Was Violated

The City’s oak tree ordinance allows the cutting of oak trees with a permit but disallows removal of more than 10 percent of a subject property’s total estimated canopy or root structure. The project would result in removal of up to 36 percent of oak trees on site in violation of this ordinance. Appellants did not argue against that fact but did assert Petitioners failed to exhaust their administrative remedies on this claim. The Court addressed both the merits of the claim and exhaustion (see above) and agreed with the trial court in finding that, in approving the oak tree permit for the project, the City violated its own “‘duly adopted law’” and therefore the permit must be vacated.

Casey Shorrock