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Supreme Court Grants Review in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority

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This spring, we blogged on the opinion of the Second Appellate District Court of Appeal in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552, which upheld the use of a future baseline for the purposes of evaluating environmental impacts in appropriate cases.  On August 8, the California Supreme Court has granted review, rendering the court of appeal opinion uncitable and inciting speculation in the environmental law community that the Court might finally provide guidance on the baseline question. (CA Supreme Court Case No. S202828)

In that case, Petitioner Neighbors for Smart Rail argued that Exposition Metro’s use of a future baseline was improper for reviewing significant environmental impacts under CEQA, which requires an “existing conditions baseline.” The lower appellate court found that the CEQA Guidelines provide some flexibility to agencies in selecting an appropriate baseline, and that Exposition Metro’s incorporation of future population growth into its baseline was both realistic and proper. Exposition Metro was therefore not prevented, as a matter of law, from using its future baseline in evaluating environmental effects.

This holding seems to be in conflict with Fifth and Sixth District Court of Appeals in their opinions Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48.

 

Second District Court of Appeal Publishes City Of Maywood v. Los Angeles Unified School District in its Entirety, Including Previously Unpublished Portions of the Decision that Found School’s EIR to Be Inadequate.

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On August 14, 2012, the Second District Court of Appeal ordered its entire ruling published in the case of City of Maywood v. Los Angeles Unified School District (2012) __Cal.App.4th__ (Case Nos. B233739, B236408), including provisions dealing with the District’s compliance with the California Environmental Quality Act (CEQA).

The appellate court affirmed the trial court’s ruling requiring the Los Angeles Unified School District to address whether the proposed design of the school campus, which is bisected by an active roadway, presents significant impacts to pedestrian safety.  Second, the court held the Final Environmental Impact Report (FEIR) adequately addressed whether the project site was contaminated with hazardous materials, adequately analyzed the cumulative impacts from a planned expansion of the I-710 freeway, and contained an adequate discussion of project alternatives.

Pedestrian Safety

The proposed new school campus is on a site bounded on all four sides by streets as well as completely bisected by a street with active traffic. On one side of the bisecting street lie classrooms, on the other a football stadium and parking garage. The Draft EIR (DEIR) proposed a pedestrian bridge to carry students from one part of the school campus to another, as well as other traffic safety mitigation measures along the bisecting road. The DEIR also concluded, however, that the implementation of the proposed mitigation measures along the road was under the jurisdiction of another agency—the City of Maywood—and therefore could not be guaranteed by the school district.

The school district conceded that it had a duty to consider whether the design of the project would have a significant impact to pedestrian safety.  The court found that the evidence in the administrative record analyzed the safety of pedestrians traveling to the project site, but not within it. The court was concerned that the road bisecting the school presented potential impacts that were not analyzed in the EIR.  Although the school proposed a pedestrian bridge to address this concern, the court found that the record contained no evidence that students and other pedestrians would actually use the access bridge up and over the road bisecting the project.  The mere existence of the bridge, without more, was not substantial evidence that the potential impact would be mitigated, and the court ruled that the FEIR failed to adequately address pedestrian safety.

Cumulative Impacts

The appellate court further held that the trial court erred in concluding that the FEIR was required to analyze the cumulative impacts of a proposed freeway expansion and off-ramp near the project because the freeway project was not a reasonably foreseeable probable future project. (CEQA Guidelines, §§ 15130, subd.(a), 15355; Pub. Resources Code, § 21083, subd. (b)(2).) Since the City of Mayfield did not include enough information in the record to establish that the proposed off-ramp was a probable future project, the school district did not need to include the effect of the off-ramp in its cumulative impacts analysis. (See Grey v. County of Madera (2008) 167 Cal.App.4th 1099, 1127.) In this case, the city only included one email in the administrative record which showed that an off-ramp near the project was under consideration. This was insufficient to bring into question the school district’s cumulative impact analysis.

Hazardous Materials

The DEIR stated that the Notice of Preparation determined the project would have no significant impact or a less-than-significant impact related to hazardous materials. Nevertheless, because of public concerns, the school district conducted a phase I environmental assessment, a preliminary endangerment assessment, and a health risk assessment. As a result, several potential contamination hazards were revealed on the project site, including four industrial facilities and residential structures with the potential for lead-based paint and insecticide contamination.

In addition to the environmental assessment, the school district also worked with the Department of Toxic Substance Control (DTSC) to draft a remediation work plan and prepare to work under DTSC’s oversight until it received a “no further action” determination from DTSC.  Such a determination would confirm the elimination of any risk to the health and safety of students, faculty, employees, and visitors, before construction would begin. The school district argued in the appellate court that, under CEQA, it was “permitted to commit itself to craft mitigation measures that would satisfy enforceable performance criteria by the time of project approval.” Further, the school district argued, it would be “impractical and infeasible to complete [the process] before the EIR is prepared and certified and before the project is approved… In circumstances where practical considerations preclude devising specific measures to mitigate at the planning stage, CEQA allows a Lead Agency to commit itself to devise measures that will satisfy performance criteria at the time of project approval.”  Of particular note, in order to fully develop the plan, the school district would have had to procure access agreements for 27 residential properties at the project site and secure a judicial right of entry to conduct testing on the parcels. The court upheld the City’s analysis, reasoning that in accordance with  Oakland Heritage Alliance v. City of Oakland  (2011) 195 Cal.App.4th 884, 906, “[A] condition requiring compliance with regulations is a common and reasonable mitigation measure, and may be proper where it is reasonable to expect compliance.” Therefore, the court reversed the trial court and upheld the FEIR’s hazardous waste analysis.

Project Alternatives

The appellate court also held that the FEIR adequately analyzed a reasonable range of alternatives. The CEQA Guidelines require that an EIR “describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.” (CEQA Guidelines, § 15126.6, subd. (a).)   The DEIR contained analysis of six possible alternatives to the site, including a no build alternative, a reduced project alternative, and four alternatives at different locations. The City of Maywood argued that the school district should have analyzed a reduced-project alternative, one that had the same number of classrooms but occupied less land. The school district successfully countered that the Department of Education requires a certain amount of land per student, and to increase the density of the student population would violate the department’s maximum student-per-acre density of 150 students, so that alternative was unreasonable.  The court agreed that an “EIR is not required to consider alternatives which are infeasible.” (CEQA Guidelines, § 15126.6, subd. (a).) The school district also rejected consideration of an offsite alternative, which had greater impacts to pedestrian safety and greater potential hazardous materials issues concerns due to proximity to industrial facilities. The court overturned the trial court’s ruling that the FEIR should have given more consideration to this other site, holding that the school district had substantial evidence in the record supporting the FEIR’s statements, assessment, and rejection of the alternative site.

Note: the attorney’s fees portion of this case, holding that the Supreme Court’s decision in Whitley applies to equally to public entity litigants, has been previously discussed on our blog on July 19, 2012. See: http://rmmenvirolaw.flywheelsites.com/2012/07/second-district-court-of-appeal-confirms-public-entity-litigants-non-pecuniary-interests-irrelevant-in-evaluating-award-of-attorneys-fees-under-california-code-of-civil-procedure-sec/

Fourth District Upholds City’s Project Approvals Despite Numerous Procedural Errors When Plaintiffs Failed to Show That Those Errors Resulted in Prejudice or Substantial Injury

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On July 31, 2012, the California Court of Appeal for the Fourth District certified its ruling for partial publication in Rialto Citizens for Responsible Growth v. City of Rialto  (2012) 208 Cal.App.4th 44.  

Factual and Procedural Background

The City of Rialto approved a 230,000-square-foot commercial retail center to be anchored by a 24-hour Wal-Mart “Supercenter.” Rialto Citizens for Responsible Growth petitioned the trial court for a writ of mandate invalidating several project approvals, including the City’s resolution certifying the final environmental impact report (EIR) for the project, several resolutions  [2] amending the City’s general plan and the “Gateway Specific Plan” governing the project site, and an ordinance approving a development agreement for the project.

The trial court struck down the City’s approvals of the Project on the basis that the City had violated multiple provisions of the California Planning and Zoning Law and the California Environmental Quality Act (CEQA).  Specifically, the trial court found that (1) the notice of the public hearing before the City Council violated Government Code section 65094 because it failed to include the planning commission’s recommendation; (2) the City Council violated Government Code section 65867.5 by approving the development agreement without making a finding that it was consistent with the General Plan and the Gateway Specific Plan; (3) the EIR failed to identify the development agreement as an approval required to implement the project; (4) the EIR failed to adequately analyze the project’s cumulative impacts on traffic; (5) the EIR failed to adequately analyze the project’s cumulative impacts on air quality; (6) the EIR improperly dismissed the cumulative impacts of greenhouse gas emissions and climate change impacts because of an inability to analyze the individual impacts of the project; (7) the EIR failed to separately list greenhouse gas emissions among the significant impacts of the project; (8) the EIR improperly deferred mitigations to reduce biological impacts; and (9) the City improperly rejected the reduced density alternative as infeasible.

Court of Appeal Decision

The Court of Appeal reversed the trial court on all counts and reinstated the Project approvals.  The appellate court agreed that the City had made significant procedural errors in violation various Government Code sections.   In particular, it agreed with the trial court that the public notice was flawed and that there was no finding of consistency when the development agreement was approved.  The court, however, found that Rialto Citizens failed to meet the requirements of Government Code section 65010.  Under that section, according to the court, Rialto Citizens had the burden of demonstrating prejudice, substantial injury, and the probability of a different result.  Because Rialto Citizens made no attempt to show, and the trial court did not find, that the City’s errors resulted in prejudice or substantial injury, or that a different result was probable absent the errors, there was no basis for overturning the City’s approvals.

In an unpublished portion of the opinion, the court addressed whether the City violated CEQA.  The court agreed with the trial court’s determination that the project description was inadequate because it did not identify the development agreement as an approval required to implement the project. The court held, however, that this omission did not preclude or undermine informed decisionmaking on the project as a whole or the development agreement, because the ordinance approving the development agreement was duly noticed and considered, along with other project approvals, at the public hearing on the project before the City Council.  The court also concluded, contrary to the trial court’s rulings, that the EIR adequately analyzed the project’s cumulative impacts on air quality, traffic, greenhouse gas emissions and global climate change, and did not improperly defer mitigation of potential impacts on any of the special status plant or wildlife species.  The appellate court also found that substantial evidence supported the City’s finding, at the project approval stage, that the reduced density alternative was infeasible.

Thus, the court found no prejudicial violations of either the Planning and Zoning Law or CEQA in the City’s approval of the project.

Ninth Circuit Court of Appeals holds U.S Bureau of Reclamation renewal of water service contracts not discretionary and therefore not subject to Section 7(a)(2) of the Endangered Species Act

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On July 17, 2012, the Ninth Circuit Court of Appeals released its decision in Natural Resources Defense Council v. Salazar, 2012 U.S. App. Lexis 14614 (Case No. 09-17661) affirming Judge Oliver Wanger’s decision in the Eastern District of California, finding that the United States Bureau of Reclamation did not violate section 7(a)(2) of the federal Endangered Species Act by renewing 41 water supply contracts. In this case, plaintiffs argued the Bureau unlawfully renewed the water service contracts without conducting adequate consultation under Section 7(a)(2) of the ESA, and that the contract renewals jeopardized the existence of the Delta smelt.

Background and Procedure

The Bureau operates the Central Valley Project, which is a network of dams, reservoirs, and pumping facilities for regulating and distributing water from the Sacramento and San Joaquin River watersheds. California’s State Water Project operates within the same watershed, and is an analogue to the CVP.

The Bureau and the SWP have coordinated management of the CVP since the 1930’s when the Bureau assumed control of the CVP because California could not finance the project. To operate the CVP, the Bureau was required to obtain water rights under state law, but a dispute arose regarding the priority of pre-project water rights. The California Water Rights Board held hearings on the matter and issued a decision allowing the Bureau to manage CVP water if it first addressed the issue of senior water rights holders. In response to that decision, the Bureau entered into 142 settlement contracts, each for 40-year terms with some parties asserting senior water rights from 1964. The contracts guaranteed so-called “Settlement Contractors” a certain amount of base water, which could only be reduced by 25% in very dry years. The Bureau also entered into long-term contracts with a coalition of water service contractors who obtained water from the Delta-Mendota Canal (DMC Contractors).

In 2003, the Bureau prepared a biological assessment under the ESA regarding effects on the Delta smelt from the renewal of the contracts, and requested consultation with the Fish and Wildlife Service. In 2004, the Service issued concurrence letters, which concluded the contract renewals were not likely to adversely affect any listed species or their critical habitat. Following the decision in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) (invalidating the regulatory definition of “destruction or adverse modification”), the Bureau reinitiated consultation with the Service.  In 2005, FWS reissued concurrence letters reaching the same conclusion.  The concurrence letters incorporated by reference sections of the biological opinion for the Long-Term CVP and State Water Project Operations Criteria and Plan (known as “OCAP”).  Following completion of the Service’s ESA consultation, the Bureau renewed contracts with both the Settlement Contractors and the DMC Contractors.

In 2005, plaintiffs filed suit challenging the 2005 OCAP biological opinion.  The lawsuit also included claims that the Bureau violated its legal obligations under Section 7(a)(2) of the ESA by renewing the DMC and Settlement Contracts. After reviewing the 2005 biological opinion, a district court held it was  unlawful for failing to adequately consider impacts to the Delta smelt’s critical habitat, failing to rely on the best available scientific information, and for not including mandatory mitigation measures to protect the Delta smelt. The district court remanded the 2005 OCAP biological opinion without vacatur, ordered the Bureau and the Service to re-consult, and imposed interim measures that automatically expired on the issuance of a new biological opinion.

The Service filed a new biological opinion in 2008 that concluded the CVP and SWP operations were likely to threaten the Delta smelt and identified “reasonable and prudent alternatives” to avoid jeopardy.  Following the issuance of the 2008 biological opinion, plaintiffs filed another complaint alleging that the Bureau had violated Section 7(a)(2) of the ESA by renewing the DMC and Settlement Contracts. Each side moved for summary judgment, and the district court granted summary judgment for the defendants. The District court found that plaintiffs lacked standing to challenge the DMC contracts, and that the Settlement Contracts were not subject to Section 7(a)(2).

The Ninth Circuit’s Opinion

The Ninth Circuit first rejected defendants’ argument that the issuance of the 2008 biological opinion by the Service rendered plaintiffs’ claims moot.  The court explained the claims were not moot because, unlike its prior cases where a new biological opinion clearly replaced the old opinion, in this case there was ongoing litigation regarding the validity of the 2008 opinion and a district court decision in a separate matter holding that parts of that 2008 opinion violated the ESA.   The Ninth Circuit also held the claims were not moot because it was unclear if the contracts at issue were considered in the 2008 opinion.

The Ninth Circuit then addressed plaintiffs’ standing to challenge the DMC contracts. The court determined plaintiffs failed to establish a causal connection between the threatened injury and the Bureau’s action because the DMC contracts included a shortage provision which expressly allowed the Bureau to take action to meet its legal obligations. These actions could include not delivering water to DMC Contractors if necessary in order to comply with the ESA. Therefore, the threatened injury, jeopardy to Delta smelt, would not be traceable to the contract renewals because the contracts expressly allowed for compliance with Section 7(a)(2). Based on this reasoning, the Ninth Circuit concluded the lower court properly determined the plaintiffs lacked standing to challenge the DMC contracts.

After addressing the DMC Contracts, the Ninth Circuit considered the applicability of Section 7(a)(2) to the Settlement Contracts. With respect to the Settlement Contracts, the Ninth Circuit ruled there was no “discretionary action” triggering the duty to consult under section 7(a)(2) of the ESA.  Citing the Supreme Court’s decision in Nat’l Ass’n. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007), the Court explained that “Section 7(a)(2) of the ESA only applies to federal agency action ‘in which there is discretionary Federal involvement or control.’”  The Ninth Circuit, therefore, held the lower court properly determined that the Bureau’s renewal of the Settlement Contracts was not subject to Section 7(a)(2) because the action was not discretionary.

The court explained that under the Reclamation Act of 1902, the Bureau must operate the CVP in conformity with California water law, including full recognition of any vested right acquired under California law. Under the state law, senior appropriative water rights must be satisfied before junior water rights. Under the Settlement Contracts, the Bureau is required to deliver base supply water that may only be reduced in critically dry years. This duty to deliver is mandatory, and under the Central Valley Project Improvement Act, the Bureau is required to renew these contracts upon request. Due to this requirement, the Bureau’s discretion was limited with regard to the Settlement Contracts such that Section 7(a)(2) of the ESA was not triggered. Based on this reasoning and lack of standing, the Ninth Circuit upheld the district court’s grant of summary judgment in favor of the defendants. (By John Wheat)

California Natural Resources Agency moves forward with regulations for streamlined environmental review for qualified infill projects.

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On July 27th, the California Natural Resources Agency took the next step toward rulemaking for streamlined environmental review for qualified infill projects. The action proposed is to add a new section 15183.3 to the CEQA Guidelines, as well as a new Appendix M and N to the Guidelines, pursuant to SB 226 (which added Pub. Resources Code section 21094.5.5, directing the Resources Agency’s rulemaking). The written comment period will remain open until 5:00 p.m. on September 10, 2012. Two public hearings have been scheduled, the first on September 7, 2012 in Los Angeles, and the second on September 10, 2012 in Sacramento.

While existing law already permits streamlined CEQA review for qualified infill projects under SB 226, the Natural Resources Agency’s proposed guidelines would establish a process for documenting and applying SB 226’s streamlining provisions. The proposed rules also clarify the type of specific environmental review required, which may include a checklist approach, more information about the evidence standard for lead agencies, an explanation of the threshold amount of allowable environmental impact, further guidance on which additional policy documents may be used in the streamlined process, and a discussion of mitigation measures.

The proposal also details the performance standards needed for streamlining eligibility as required by SB 226 to ensure that infill development advances state policies with respect to GHG emissions, public health, and water and resource management. Overall, SB 226 and the implementing Guideline section are intended to promote infill development over greenfield development, and to make environmental review less burdensome for qualifying projects. (By Holly W. Roberson)

More information can be found at: http://ceres.ca.gov/ceqa/docs/SB226_Guideline_Updates_Notice.pdf.

 

Governor Jerry Brown formally announces revisions to proposed framework for the Bay Delta Conservation Plan

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On July 25, 2012, California Governor Jerry Brown along with the Department of the Interior and NOAA announced revisions to the proposed framework for the Bay Delta Conservation Plan (BDCP). This new preferred alternative proposal, along with a range of alternative proposals, will be subject to a full public environmental review.  In making their announcements today, state and federal officials emphasized that the current state of the California water system is unsustainable from both an environmental and an economic perspective. The BDCP will play an important role in helping California achieve its co-equal goals of a reliable water supply and a healthy Bay Delta ecosystem.

A major aspect of the plan proposes construction of a pair of a water conveyance facilities designed to move water under the Delta from the north to the federal and state pumps at Tracy in the south. This facility as proposed could play an important role in the restoration of California’s Sacramento-San Joaquin River Delta. The revised preferred alternative includes water intake facilities with a total capacity of 9,000 cubic feet per second. The previous proposal’s water intake facilities operated at an intake capacity of 15,000 cubic feet per second.

The conveyance facility has been proposed, in part, to address the aging system of levees in the Delta that are at risk of collapse in an earthquake. If enough levees failed in a significant seismic event, salt water from the ocean could intrude up the Delta as far as the Tracy pumps. This scenario would make the pumps unusable and disrupt California’s water supply. Among numerous other components, the BDCP framework also calls for restoring approximately 113,000 acres of wetlands, floodplains and other habitat within and surrounding the Delta.

Parties working on the BDCP expect to issue a draft plan and corresponding EIS/EIR for public review this fall. Leading up to this release, state and federal agencies will work closely with public water agencies and other interested parties. Based on this input, state and federal agencies will continue to refine the revised proposals. After completion of this preliminary work the BDCP will release an updated progress report.

The official press release for the July 25, 2012 announcement can be found here: http://baydeltaconservationplan.com/Libraries/Dynamic_Document_Library/Joint_Announcement_Press_Release-7-25-12.sflb.ashx

(By John Wheat)

 

Ninth Circuit Court of Appeal Rules Federal Government can Extinguish California Public Trust when Exercising its Eminent Domain Powers.

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On June 14, 2012, the Ninth Circuit Court of Appeals issued its decision in United States v. 32.42 Acres of Land. In this case, the California State Lands Commission appealed from a district court’s final judgment in an eminent domain case where the United States took a fee simple interest in 32.42 acres of land on behalf of the U.S. Navy.

In 1911, the state legislature granted the property at issue to the City of San Diego, which leased the property to the Navy for 50 years, with the right to renew the lease for an additional 50 years. This land was later transferred to the San Diego Port District. When the Navy sought to exercise its exclusive option to renew the lease in 1996, the Port and Commission opposed the extension, and the United States brought a condemnation action. This action was settled and the lease was granted, but in 2005, the Navy determined it wanted to own the property in fee simple. The United States again filed a condemnation action. The Commission filed a motion for summary judgment, contending that the federal government could not extinguish California’s public trust rights. The trial court denied the motion, and the Commission appealed.

On appeal, the parties agreed that the federal government may take the property, and that it could put it to any use, including non-trust uses. The parties disagreed over the result of potential transfer of ownership of the property to a private party in the future. The Commission argued that the declaration of taking should not extinguish California’s public trust, but instead should only make it “quiescent” so that the public trust has no effect while the United States owns the property, but remerges if the land is later sold to a private party. The court rejected all of the Commission’s arguments in support of this position.

First, the Commission contended that the equal-footing doctrine required the federal government to offer a compelling reason for granting away submerged lands. Under the equal-footing doctrine, when a new state is admitted into the Union, it gains the same rights, sovereignty and jurisdiction as the original States; therefore, the doctrine provides a state presumptive title to its submerged lands when it joins the Union. The Commission argued that a compelling reason was required prior to granting these lands away because courts “did not ‘lightly infer’” such a grant when the United States held title to submerged land prior to statehood. As a result, the Commission asserted the federal government should not be able to grant away a state’s submerged land without being held to the same standard for granting away a territory’s submerged land. The court responded that the Commission misinterpreted the equal-footing doctrine. Under the equal footing doctrine, courts begin with a strong presumption against defeat of a state’s title. This presumption can be overcome, as the Constitution’s Property Clause gives the federal government the power to divest a future state of its entire title in submerged lands so long as the federal government makes its intention to do so plain, and the conveyance is for a public purpose.

Second, the Commission argued that the equal-footing doctrine prevented the federal government from extinguishing California’s public trust rights by eminent domain because “nothing but the Constitution can take away from the states what they received under the equal footing doctrine.” The court noted the Commission relied on cases to support this argument that were inapplicable. The court clarified that while the equal-footing doctrine prevents the federal government from granting property held by a state to a third party, it does not prevent the federal government from gaining new property through its eminent domain power.

Third, the Commission argued the law of federal navigational servitude supported its argument that the federal government could not extinguish state public trust rights because the law of navigational servitude defines “the extent to which the states have surrendered their public trust rights by the Constitution.” The court again pointed out that the Commission failed to distinguish between what the federal government may do with land when it does or does not have title to that land. The court held that the scope of the federal navigational servitude does not limit the United States’ power of eminent domain.

Fourth, the Commission invoked the seminal Illinois Central Railroad case to argue that the public trust doctrine restricts the ability of both federal and state governments to alienate public trust lands free of the public trust. The court rejected this argument, pointing out that the public trust doctrine remains a matter of state law. If California’s public trust interest in the property were to survive the federal government’s attempt to condemn it, it would improperly subjugate the federal government’s eminent domain power to state law. This would violate the Constitution’s Supremacy Clause.

Finally, the Commission unsuccessfully argued that the United States’ taking of the property subject to a “quiescent trust” would serve the Navy’s purpose equally well, so preserving California’s public trust would not frustrate the United States’ power of eminent domain. The court stated that the United States sought to extinguish the state’s public trust, and therefore, whether it could accomplish its objective by taking a lesser interest in the property is irrelevant. The Navy determined it wanted the property in fee simple and unencumbered by California’s public trust. The court noted it did not have the jurisdiction to review the wisdom of that determination. (By John Wheat)

 

 

California’s Clean Tech Industry Grows in Partnership with the U.S. Navy.

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Yesterday the Governor’s Office of Planning and Research, Senate leadership and the California Energy Commission gathered together with journalists and over 100 people on the Capitol steps for a clean tech exposition to celebrate the growth of California’s clean tech industry through partnership with the U.S. Navy.

For years California’s legislature and the CEC have worked to provide funding for research and development of new fuel sources through AB 118 funds and federal funding. The expo featured the success stories of companies that received seed funding and have now developed commercially viable large scale biofuel and alternative energy products. Together these companies have hundreds of patents and provide thousands of jobs here in California. “Our partnership with the US Navy and innovative California companies represents how the State’s energy policies are being adapted to develop alternative fuels, foster clean energy resources, and improve energy reliability,” said California Energy Commission Chair Bob Weisenmiller.

The Navy has set aggressive goals to reduce energy consumption and increase the use of alternative energy and fuels. By 2020 the Navy in California will use 50 percent less energy overall and half of its installations will achieve “net zero” greenhouse gas emissions through the use of energy conservation and renewable energy sources. The Secretary of the Navy has affirmed that energy security increases national security and saves taxpayers money. Providing local energy sources keeps troops on mission and reduces their exposure while protecting supply lines. The Navy can save money on its fuel budget through energy efficiency measures and by using new, cost effective biofuels. According to the U.S. Department of Defense, every $10 increase in the price of a barrel of oil equals an additional $1.3 billion to its annual energy bill.

To help meet these goals the Navy has partnered with California and utilized the products of local companies like Solazyme, BioDeco, Borego Solar, and Sun Power to fuel its jets and power its bases.

The expo was part of Sacramento Navy Week, and included a presentation of a Senate Resolution to recognize the Navy for its contributions to California. (By Holly W. Roberson)

Second District Court of Appeal Confirms Public Entity Litigant’s Non-pecuniary Interests Irrelevant in Evaluating Award of Attorneys’ Fees under California Code of Civil Procedure Section 1021.5

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On July 18, 2012, the Second District Court of Appeal certified its ruling for partial publication in City of Maywood v. Los Angeles Unified School District (2012) __Cal.App.4th__ (Case No. B233739). In this case, the City of Maywood sought to overturn the Los Angeles Unified School District’s (LAUSD) certification of an FEIR analyzing the environmental consequences of constructing a high school. The trial court rejected most of the city’s claims, but found the FEIR deficient in four ways, including inadequate analysis of pedestrian safety. The trial court entered a peremptory writ and awarded attorneys’ fees to Maywood. The LAUSD appealed. The appellate court rejected most claims against the FEIR, but agreed, in an unpublished section, that further analysis of pedestrian safety impacts was required. In the only published section of its decision, the Second District clarified the proper test for determining whether the prevailing party was entitled to attorneys’ fees.

The trial court awarded Maywood approximately $670,000 in attorney’s fees pursuant to Code of Civil Procedure § 1021.5. On appeal, LAUSD argued that Maywood could not recover fees because the “primary purpose” of the lawsuit was to benefit Maywood “whether for financial or other reasons.” To obtain attorneys’ fees under § 1021.5, the party seeking the fees must show that the litigation (1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) was necessary and imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter. Each of these elements must be satisfied for an award to issue.

The appellate court relied on the California Supreme Court’s decision in Conservatorship of Whitley (2010) 50 Cal.4th 1214 to clarify the method for evaluating the necessity and financial burden element of § 1021.5. The Supreme Court determined “the necessity and financial burden of private enforcement” requirement is actually comprised of two distinct elements: a necessity prong and a financial burden prong. The court held “a strong nonfinancial motivation does not change or alleviate the ‘financial burden’ that a litigant bears. Only offsetting pecuniary gains can do that.” Further, the Supreme Court noted that the legislative history for §1021.5 did not focus on the litigants’ initial subjective motivation, but rather, was intended to alleviate the financial burdens associated with public interest litigation. Lastly, the Supreme Court explained that determining whether a particular non-pecuniary interest was sufficient to preclude recovery of attorneys’ fees would require speculative inquiry lacking in objective criteria.

While the holding in Whitley focused on private enforcement actions, the Second District Court of Appeal determined that all of the factors the Supreme Court discussed in Whitley apply equally to public entity litigants. The legislative history for § 1021.5 indicated that the Legislature intended the same requirements to apply to private and public litigants. The appellate court also rejected a substantial portion of LAUSD’s argument for relying on cases preceding Whitley. Whitley has made it clear that a litigant’s non-pecuniary interests are not relevant in evaluating § 1021.5’s financial burden criterion.

The appellate court indicated that, due to reversing significant portions of the trial court’s order, it also had to reverse the order granting attorneys’ fees because any grant or denial of attorneys’ fees under § 1021.5 must follow remand and be based on the results obtained in the new judgment. The trial court was directed to reassess whether fees were appropriate after the outcome of the appeal, and if so, the appropriate amount of any such fees, applying the standards in Whitley. (By John Wheat)

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