Chip Wilkins, partner with Remy Moose Manley, LLP, took over as chair of the Sacramento County Bar Association’s Environmental Law Section on July 1, 2014. Chip served the previous four years on the section’s executive committee. RMM Associate Laura Harris, who also served on the executive committee for the past four years, will serve as vice chair.
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Court Holds Petition Over Tree Removal in Community College Expansion Project Came Too Late
A published opinion by the First District Court of Appeal emphasizes the importance of filing timely CEQA lawsuits. In Citizens for a Green San Mateo v. San Mateo Community College District, the court determined that, even under the most generous interpretation of CEQA’s statute of limitations, a petitioner’s lawsuit was time-barred under Public Resources Code section 21167.
The controversy arose when the San Mateo Community College District removed and pruned over 200 invasive eucalyptus trees on the northern edge of the community college campus. The district began removing trees on December 28, 2010. On January 5, 2011, a member of Citizens for a Green San Mateo contacted the district expressing concern over the tree removal and pruning. Citizens for a Green San Mateo filed a petition for writ of mandate on July 1, 2011, alleging that the district violated CEQA and was required to prepare an EIR to study the tree removal. The trial court determined the challenge was timely and granted the petition, finding the district had violated CEQA. The district appealed.
The Appellate Court’s Decision
On appeal, the district argued the 30-day statute of limitations period established by Public Resources Code section 21167, subdivisions (b) or (e) applied to bar the CEQA lawsuit because the district filed a Notice of Determination. The NOD described the mitigated negative declaration prepared by the district when it approved the Facility Improvements at College of San Mateo project, or the “CSM Project,” in 2007.
The CSM Project included renovation, demolition, replacement, or new construction of about 25 buildings, numerous pedestrian and automobile circulation enhancements, and other improvements to modernize the campus. The negative declaration also determined that the proposed project would result in the removal and pruning of an unknown number of trees, but tree plantings proposed as part of the project would mitigate any unavoidable tree removal, resulting in a less than significant impact. At the hearing, a district trustee expressed concern regarding campus-wide tree removal proposed as part of the CSM Project, but noted that, due to the mitigation required by the negative declaration, “the number of newly planted trees will be greater than that of removed trees.” No public comments were offered at the hearing.
The appellate court rejected the petitioner’s claim that the tree removal was “materially different” from the activities discussed in the mitigated negative declaration and subsequent NOD that the community college district filed for the CSM Project. The court emphasized that the term “project,” for the purposes of CEQA, does not mean each separate governmental approval that may ultimately be required to complete the proposed action. The court concluded that the record demonstrated the tree removal was a subsequent activity encompassed within the scope of the CSM Project. Since the district filed an NOD recording its approval of the CSM Project, and the public was on notice that trees could be removed anywhere on campus as a result of the CSM Project, the 30-day statute of limitations established by section 21167, subdivisions (b) and (e) applied to bar the lawsuit.
Even if the 180-day limitations period, which applies when no NOD is filed, applied to this case, the appellate court determined the lawsuit was still time-barred. Assuming, for the purposes of analysis, that the district failed to adequately notify the public of the tree removal, any challenge would need to be filed within 180 days from the date of the district’s decision to carry out or approve the project, according to section 21167, subdivision (a). Here, the district committed to the tree removal at the public trustee meeting on November 17, 2010. The appellate court emphasized that section 21167, subdivision (a), does not require any special notice requirement to start the 180-day clock; all that is required is a formal decision by a public agency to carry out or approve the project. Therefore, the petition was time-barred, even assuming the tree removal was not described in the mitigated negative declaration certified for the CSM Project.
Finally, the appellate court was not persuaded by the efforts of Citizens for a Green San Mateo to avoid the result of filing its complaint outside CEQA’s statute of limitations. Citizens asserted it had no notice of the potential for tree removal activities until a neighbor/member observed the trees being cut down on January 5, 2011. To support this argument, the citizens cited the California Supreme Court’s opinion in Concerned Citizens of Costa Mesa, Inc. v. 32nd District Agricultural Association (1986) 42 Cal.3d 929. But the appellate court noted that the citizens interpreted the test established in that case incorrectly. In Concerned Citizens, the agency approved a fairground on six acres that would have seated 5,000. As constructed, the theater actually seated 7,000 across 10 acres, so the project constructed was materially different than the project the agency initially approved. Further, the agency never alerted the public to these changes. Therefore, the Supreme Court determined the 180-day statute of limitations ran from when the public reasonably should have known the project being constructed was different than the project approved. In contrast, the mitigated negative declaration prepared by the community college district notified the public that the district intended extensive landscaping improvements across campus that could require the removal of mature trees. Further, the tree removal activities conducted were not materially different from those approved by the district at an open hearing in November 2010. So even under the most generous interpretation of section 21167 and the case law established by the Supreme Court, Citizens for a Green San Mateo’s petition was time-barred.
RMM partners James Moose and Sabrina Teller represented the San Mateo Community College District.
President Obama Signs the Water Resources Reform and Development Act
On June 11, 2014, President Obama signed the Water Resources Reform and Development Act (WRRDA). Historically, water resources legislation has been enacted every two years to provide policy direction to the Army Corps of Engineers (Corps) and the Administration. The WRRDA is the first water resources bill that has been signed since 2007, however.
The WRRDA authorizes 34 federal, state, and local projects aimed at maintaining the nation’s ports, levees, dams, and harbors. For example, the WRRDA authorizes projects to deepen the Boston Harbor and the Port of Savannah, to restore the Everglades, and to strengthen levees in the Sacramento region. The Congressional Budget Office estimates the total cost to implement these projects will be $12.3 billion between 2014 and 2025. This cost will be offset by $18 billion in project deauthorizations contained in the WRRDA.
Some key components of the WRRDA:
- Authorizes approximately $45 million for flood risk management measures for the Orestimba Creek in the San Joaquin River Basin to protect the City of Newman.
- Authorizes approximately $689 million for flood risk management measures in the Sutter River Basin.
- Allows local communities, which may have state or local funding sources, to carry out work in advance of the Corps and receive a credit for this work.
- Requires the Corps to set firm deadlines for preparing its studies.
- Expedites project permitting and approvals by reducing the number of studies to be performed by the Corps.
- Requires the Corps to allow for regional variances regarding vegetation patterns and characteristics on levees, among other variances, with feedback from state, regional, and local entities.
- Authorizes financial assistance through the Water Infrastructure Finance and Innovation Act of 2014 to carry out pilot projects by public or private entities for flood damage reduction, hurricane and storm damage reduction, environmental restoration, coastal or inland harbor navigation improvement, or inland and intracoastal waterways navigation improvement.
- Deauthorizes $12 billion for old, inactive port projects.
- Reforms and preserves the Inland Waterways Trust Fund, which is used to fund the construction and rehabilitation of the nation’s inland waterways system.
In addition to the aforementioned projects, the WRRDA authorizes construction activities to strengthen 24 miles of levees protecting over 100,000 residents and $7 billion in property in the Natomas area, north of downtown Sacramento. Federal maps show that a levee breach could put homes and businesses in the area under 20 feet of water. In 2012, the Sacramento Area Flood Control Agency finished upgrading 18 miles of Natomas levees. The WRRDA authorizes the Corps to complete upgrades to the remaining 24 miles of levees, which had been stalled because of the lack of federal authorization.
Read the full text of the WRRDA here.
RMM Attorneys’ 2014 Teaching and Speaking Events
Whit Manley will serve as faculty at an Oct. 9-10, 2014, “CEQA Overview” course offered by the Center for Judiciary Education and Research (CJER), which is a program of the Judicial Council of California’s Administrative Office of the Courts. CJER provides an extensive statewide educational program for judicial officers and court staff at both the trial and appellate levels.
Jim Moose and Whit Manley are slated to speak at the First Northern California Association of Environmental Professionals Conference Oct. 23-24, 2014, in Anderson, CA. Further details will be provided as they become available.
Tiffany Wright will speak at the Fall CEQA Basics Workshop for the North Coast Chapter of the Association of Environmental Professionals on Wednesday, Nov. 5, in Eureka.
Tiffany Wright also will speak at the Fall CEQA Basics Workshop for the San Francisco Chapter of the Association of Environmental Professionals on Friday, Nov. 7, at the Association of Bay Area Governments’ office in Oakland.
Andee Leisy will speak at the Fall CEQA Basics Workshop for the Monterey Bay Chapter of the Association of Environmental Professionals on Friday, Nov. 7, at the Santa Clara Valley Water District in San Jose.
Appellate Court Upholds Permit for Landfill Expansion in Solano County
After years of environmental review and litigation, the First District Court of Appeal upheld permits authorizing the expansion of a landfill in Solano County. Waste Connections, Inc., has sought for more than a decade to expand the Potrero Hills Landfill, which is in an upland “secondary management area” of Suisun Marsh. In SPRAWLDEF v. San Francisco Bay Conservation and Development Commission, ___Cal.App.___, an environmental group challenged the San Francisco Bay Conservation and Development Commission’s approval of the permits, arguing that the commission should have approved a smaller expansion that would not affect a marsh watercourse. The court disagreed. Applying CEQA case law to the county ordinance at issue, the court held that substantial evidence in the record supported the commission’s determination that smaller alternatives were not economically reasonable.
Solano County Ordinance, section 31-300, allows modification of a marsh watercourse only if no “reasonable alternative” exists. The commission determined that a smaller expansion alternative, designed to avoid encroaching on the intermittent watercourse, would not be economically realistic. The trial court agreed with the petitioner, Sustainability, Parks, Recycling and Wildlife Legal Defense Fund (SPRAWLDEF), that no substantial evidence supported the commission’s determination. The Court of Appeal reversed.
In evaluating whether the commission had substantial evidence for its decision, the court applied CEQA principles. The court noted that, under CEQA, governments must choose “feasible” alternatives and “feasible” mitigation measures to lessen the significant environmental impacts of projects. Employing CEQA’s definition of “feasible” and CEQA case law concerning economic infeasibility, the court concluded that CEQA’s definition of economic “feasibility” embraces the concept of reasonableness. From there, the court engaged in an extensive discussion of CEQA case law.
The court distinguished this case from CEQA cases where a determination of economic infeasibility was legally inadequate. In those cases, meaningful comparison of the proposal and the alternatives was not possible because there was no evidence regarding the cost of the alternatives. Here, the court focused on the commission’s ability to compare the costs of the proposed expansion with that of the alternatives. Waste Connections, Inc. the landfill operator, explained its profit margins and advised the commission that the economic consequences of the alternatives would be so great that the project would not be “financially viable.” It submitted data for both the proposed expansion and the alternatives, comparing the per unit cost, capacity, and the life of the landfill for each. Thus, according to the court, the commission had an “adequate record before it to fairly determine the smaller alternatives were not economically reasonable.”
The court stated that there was “no merit” to SPRAWLDEF’s assertion that the economic information regarding the costs of the proposal and alternatives should be discounted or ignored because it was provided by the real party in interest, Waste Connections, and that it was within the province of the commission to find the information credible and accept it as accurate and relevant. The court determined that this data provided the commission with “some context” to assess the economic feasibility of the alternatives and held that there was substantial evidence to support the commission’s determination that the smaller alternatives were not economically feasible.
RMM Associate Joins California Water Law Symposium Board
RMM Associate Elizabeth Sarine joined the board of directors for the nonprofit California Water Law Symposium on June 2, 2014. The annual Water Law Symposium is a collaboration of six northern California law schools: University of San Francisco, UC Berkeley, UC Hastings, Golden Gate University, UC Davis, and University of the Pacific, McGeorge. Organized by law students, the events regularly draw over 300 attendees from California’s water law and policy arenas. In 2010, the Water Law Symposium won the ABA Section of Environment, Energy and Resource’s Law Student Program of the Year Award.
During her years at UC Berkeley School of Law (Boalt Hall), Elizabeth served as symposium co-chair in 2012 and as panel co-chair in 2011 for the Water Law Symposium. The 2012 Symposium at Boalt Hall focused on the need to find sustainable approaches to the management of California’s water resources in the face of increasing uncertainty and competing demands. One of the highlights was a presentation by the late Professor Joseph Sax on the Past, Present, and Future of the Public Trust Doctrine in California. A video of this presentation, and the other panels of the 2012 Symposium, can be viewed here.
EPA Sets Emission Reduction Goals for Power Plants
After hundreds of stakeholder meetings during the past year, the U.S. Environmental Protection Agency has issued emissions guidelines for states to follow as they develop plans to address greenhouse gas emissions from existing power plants. On June 2, 2014, EPA released a proposed rule that would require fossil fuel-fired electric generating units to reduce their 2005-level carbon dioxide emissions 30% by 2030. The rule falls under Section 111(d) of the Clean Air Act.
Each state would have its own rate-based CO2 emissions standard. Interim checkpoints for the ultimate emissions reduction goal would begin in 2020. Aside from improved fossil fuel efficiency, the rule encourages emissions reductions in the energy sector by taking advantage of renewable energy sources and reducing electricity demand across the grid.
The comment period will run for 120 days. States must submit implementation plans by June 30, 2016.
The proposed rule is available here.
Department of Toxic Substances Control Grants Final Hazardous Waste Permit Modification for Expansion of Kettleman Hills Landfill
After five years of study and review, California’s Department of Toxic Substances Control (DTSC) granted a final Hazardous Waste Permit modification for the expansion of the existing Kettleman Hills hazardous waste landfill owned by Chemical Waste Management, Inc. (CWMI). The approval on May 21, 2014, paves the way for the landfill, which is operating near capacity, to increase capacity by five million cubic yards. The landfill is located three and a half miles from Kettleman City in Kings County.
The permit includes stringent conditions aimed at further protecting public health and the environment, including increased monitoring for PCBs and other contaminants, expanded sampling and analysis of liquids captured by the landfill’s subsurface collection system, strict diesel emission standards for trucks using the facility, a containment system to control spills, required aerial and land surveys, and increased inspections. The DTSC permit review process included extensive public involvement, including a lengthy public comment period, and 23 public meetings and interview sessions with people in communities near the facility.
RMM attorneys Andrea K. Leisy and Amanda R. Berlin represented CWMI in litigation challenging the County of King’s certification of a Subsequent EIR for the landfill expansion. The Superior Court of Kings County upheld the adequacy of the EIR in 2011, as did the Fifth District Court of Appeal in 2012. More information about the DTSC decision can be found here.
Energy Information Administration (EIA) Reduces Its Estimates of Recoverable Oil in the Monterey Shale to 600 Million Barrels, down 96% from 2012 Estimates
At the May 21, 2014 Oil & Gas Strategies Summit in New York, EIA Administrator Adam Sieminski shocked many with his announcement that the federal agency has drastically cut its estimates of technically recoverable oil in the Monterey Shale from 13.7 billion barrels to 600 million barrels. According to Sieminski’s reported comments, the revision was prompted, in part, by new evidence the EIA and U.S. Geological Survey collected on output from wells where new techniques have been tested.
In 2011, the EIA published a report by INTEK Inc. that estimated there were 15.4 billion barrels of technically recoverable shale oil, or “tight oil” in the Monterey Formation. Sometime in 2012, the EIA reduced this estimate to 13.7 billion barrels. Now, the agency plans to release a report in the coming months that will explain why it has decided to severely reduce the estimate to 600 million barrels.
The Post Carbon Institute’s December 2013 report on the Monterey Shale presaged this news. The PCI report—“Drilling California: A Reality Check on the Monterey Shale”—provided several reasons why the EIA’s 2011 estimates were likely to be “highly overstated.” For example, the report asserts that:
- “Existing fields within the Monterey are areally restricted and are primarily controlled by structural and stratigraphic trapping mechanisms, thus the assumption of broad regions of prospectivity is highly questionable.”
- “An analysis of every well producing from Monterey shale reservoirs reveals that average initial productivity is less than half of the typical horizontal and vertical shale wells assumed in the EIA/INTEK report, and less than a quarter of the ‘typical Elk Hills vertical shale well’.”
- “Fracking and acidization have doubtless been tried extensively on Monterey shale wells, yet the data do not show any significant increase in initial well productivity or likely cumulative oil recovery for recent wells.”
(J. David Hughes, PCI Fellow, Drilling California: A Reality Check on the Monterey Shale, at p. 46.)