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Full steam ahead for High-Speed Rail in California

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Today the California State Senate approved the issuance of $2.6 billion in state bonds to fund the development and construction of a high-speed rail system, which will allow the State to receive $3.2 billion dollars in matching funds from the federal government for the project. The Assembly passed the plan on Thursday.

The first segment of construction will be in the Central Valley, between Merced and Fresno, where the funding can begin to provide badly needed jobs, support for long-range smart growth and land use planning around the high-speed rail station hubs. Ultimately, high-speed rail will create significant reductions in greenhouse gas emissions and other air pollutants as rail transit will provide an efficient alternative to automobile travel between the major metropolitan areas of California.

Three CEQA lawsuits are pending in Sacramento County Superior Court challenging the adequacy of the EIR prepared for the Merced to Fresno section of the high-speed rail project. A ruling on the merits of the petitions is anticipated in early 2013, before the expected start of construction in the spring of 2013.

Second District Court of Appeal Upholds South Coast Air Quality Management District’s Rule Limiting Volatile Organic Compounds in Paint Thinners and Solvents against Challenge that the Rule Is Preempted; Rejects Claim that CEQA Required District to Analyze Alternatives to the Rule

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On June 28, 2012, in W.M. Barr & Company Inc. v. South Coast Air Quality Management District ___Cal.App.4th___ (Case No. B233892), the Second District Court of Appeal upheld the South Coast Air Quality Management District’s Rule 1143, which requires manufacturers of consumer paint thinner and solvent products to limit the use of Volatile Organic Compounds (VOCs) in their products in order to meet the District’s obligations under the federal Clean Air Act and the California Clean Air Act.

In July 2010, the District adopted Rule 1143. The District believed that Rule 1143 would cause manufacturers to replace the VOCs with acetone, a highly flammable solvent. The District therefore prepared an environmental assessment under CEQA evaluating the fire hazard risks of substituting acetone and proposing specific product labeling to alert consumers.
W.M. Barr & Company, Inc. (Barr), a manufacturer of paint thinners and solvents, challenged Rule 1143 on the grounds that (1) Rule 1143 was preempted by the Federal Hazardous Substance Act (FHSA); (2) Rule 1143 was preempted by regulations simultaneously adopted by the California State Air Resources Control Board (the Board); and (3) the District did not comply with CEQA because it failed to consider alternatives to the measures it adopted. The trial court rejected each of these claims and the Court of Appeal affirmed.

First, the Court of Appeal found that Rule 1143 was not federally preempted. Barr argued that the FHSA preempts Rule 1143 because Rule 1143 requires products to include a “hang-tag” stating that the product has been formulated to meet low VOC standard and to have warnings on the label. According to Barr, the hang-tag requirement addresses the same fire risks as the FHSA, which includes requirements for fire warning labels, and therefore the FHSA preempts the rule’s hang-tag requirement. The Court of Appeal rejected this argument for two reasons. First, the language of the FHSA, which covers “directions for use,” does not expressly preempt the hang-tag because Rule 1143’s hang-tag requirement only requires the hang-tag to instruct users to see the product’s warning label, rather than containing specific directions for use under federal labeling requirements. Second, while Rule 1143 ostensibly addresses “increased fire hazards,” the hang-tag does not directly address fire hazards. Instead, the primary (and narrower) risk the hang-tag addresses is the risk the user will not be familiar with the hazards of the product because it has been reformulated to comply with Rule 1143. The broader question of fire risk is secondary to Rule 1143, and remains governed by the FHSA. Therefore, the court concluded, the FHSA did not preempt Rule 1143’s hang-tag requirement.

Next, the court considered whether state law preempts Rule 1143 and concluded it does not. Barr argued that under California Health and Safety Code section 41712, subdivision (f), Rule 1143 is preempted by the Board’s general purpose regulation of cleaning products, which bars the District from adopting a regulation for a consumer product for which the Board has already adopted a regulation. Barr asserted that because the Board had adopted a regulation for general purpose cleaners, Rule 1143 conflicted with this regulation and was therefore preempted. The court disagreed, explaining that Health and Safety Code section 41712, subdivision (f) states: “[a] district shall adopt no regulation pertaining to disinfectants, nor any regulation pertaining to a consumer project that is different than any regulation adopted by the state board for that purpose.” The court found that the phrase “any regulation already adopted by the state board for that purpose” implicitly refers to regulations already adopted by the Board. This language is clear: if the Board has not yet adopted a regulation in the area, an air management district would not, by definition, be able to adopt a regulation that was different. Here, the Board’s regulations governing paint thinners and multi-purpose solvents were enacted after Rule 1143, not before. Therefore, the court held that Rule 1143 was not preempted by state law.

Finally, the court considered Barr’s CEQA claim. Under CEQA, the District’s adoption, amendment or repeal of a District rule is a certified regulatory program. Certified regulatory programs are considered functionally equivalent to the preparation of an EIR or negative declaration and therefore, in lieu of an EIR or negative declaration, agencies may prepare a substitute environmental review document. In the case of the District, the substitute document is what the District terms an “environmental assessment.” Barr argued the District’s environmental assessment for Rule 1143, which functioned as a mitigated negative declaration, violated CEQA because it failed to consider feasible alternatives. The court rejected this argument because, as a functional equivalent to a mitigated negative declaration, the environmental assessment was not required to analyze feasible project alternatives. Substantial evidence supported the District’s conclusion that Rule 1143 would not cause any significant environmental impacts. Therefore, the District was not required to analyze or make findings regarding alternatives to Rule 1143. (by Laura Harris)

First District Finds EIR for California State University East Bay Campus Inadequate with Respect to Analysis of Impacts to Parkland

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City of Hayward v. Board of Trustees of the California State University (1st Dist. June 28, 2012) __Cal.App.4th__ (Case Nos. A13412, A132424, A131413, A132423) 

October 17, 2012, Petition for Review granted; California Supreme Court Case No. S203939

On May 30, 2012, the First Appellate District affirmed a lower court’s grant of a petition for writ of mandate challenging the expansion of the California State University (CSU) East Bay campus and the certification of an EIR for the project under CEQA. The trial court had agreed with plaintiffs City of Hayward and two local community groups, Hayward Area Planning Association and Old Highlands Homeowners Association, that the EIR prepared by the Board of Trustees of the California State University (the Trustees) failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands. The First District, however, disagreed with the trial court and found the EIR to be adequate in all respects except it determined the EIR’s analysis of potential environmental impacts to parkland was not supported by substantial evidence. The court, therefore, directed that the scope of the writ of mandate be modified.

The case involves a challenge to the Trustees’ 2009 approval of a master plan to guide the development of the California State University East Bay (the University) for the next 20 to 30 years in order to expand the campus’s physical capacity to meet its assigned enrollment ceiling.  In March 2009, a final EIR was issued which concluded that the buildout under the master plan will result in significant impacts in four categories despite the implementation of all feasible mitigation measures: (1) aesthetics, (2) air quality, (3) cultural resources, and (4) traffic. All other impacts, including impacts on public services, were found to be insignificant or fully mitigated.

In October 2009, the city and local community groups filed separate petitions for writ of mandate challenging the certification of the EIR and approval of the master plan. The cases were coordinated for briefing and hearing. On October 28, 2010, the court issued an order granting petition for writ of mandate. On December 21, 2010, separate judgments were entered in the two cases. The trial court held that the EIR failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands. The Trustees appealed and the cases were consolidated on appeal for briefing and decision.

Fire and Emergency Medical Services

On appeal, the court disagreed with the trial court’s finding that the EIR’s analysis of the master plan’s impacts to fire and emergency medical services was inadequate. The EIR had found that the master plan would result in the need for 11 additional firefighters and additional fire station facilities to house the staff required to serve the increased population associated with the master plan. The EIR concluded, however, that expansion or construction of a fire station would not result in significant environmental impacts due to the limited area that is typically required to build a fire station (between 0.5 and 1 acre) and its urban location. The appellate court found that the record supported this conclusion in the EIR. The court concluded that the determination that the potential impacts of the fire station would be less than significant was based on the information available (i.e., the known size requirements and the general area within which the additional facilities would necessarily be placed) which constituted substantial evidence. The court noted that, given the unknown size and precise location of the future facilities and the absence of control by the Trustees of over the future decision-making process (because emergency services are provided by the City’s Hayward Fire Department), no more detailed analysis of the potential impacts of the potential fire station was possible or required.

The court also found that no mitigation was necessary to address the need for additional fire protection services due to the potential increase in response time caused by the increase in population under the master plan. The court noted that, under the California Constitution, the obligation to provide adequate fire and emergency medical services fell to the city. Furthermore, the court, citing CEQA Guidelines § 15382 and Goleta Union School District v. Regents of University of California (1995) 37 Cal.App.4th 1025, held that the need for additional fire protection service is not an environmental impact that CEQA requires a project to mitigate.

The court rejected the respondents’ argument that under City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, the Trustees were required to pay for an additional fire station and the salaries of additional fire fighters. In City of Marina, mitigation to fund improvements to fire protection services was required because the EIR concluded the project would result in significant environmental impacts. In contrast, the court noted, the master plan EIR determined, based on substantial evidence, that implementation of the master plan would not result in a significant impact.  

The court also rejected the respondents’ reliance on Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, to argue that delayed response times must be evaluated as a “health and safety problem” under section 15126.2 of the Guidelines. In Bakersfield Citizens, the court found that the EIR for a shopping center was inadequate because it failed to correlate identified significant and unavoidable air quality impacts to resultant adverse health effects, and, therefore, the public was not apprised of the health consequences that result when more pollutants are added to a nonattainment basin. The court noted that in the University EIR, a concerned citizen reading the EIR would understand the impacts of the proposed increase in population on emergency services in the area. The EIR analyzed the response times and their impact on public safety, concluded that the project will cause response times to fall to an inadequate service level, found that additional fire fighters will be required to maintain adequate service levels, set forth the measures needed to provide adequate emergency services, and concluded that those measures will not have a significant impact on the environment.

Furthermore, the court found that the potential dangers associated with delayed response times do not mandate a finding of significance under CEQA Guidelines § 15065(a)(4). Based on the analysis in the EIR, and because the city has a constitutional obligation to provide adequate fire protection services, there was no basis to conclude that the increased population would cause a “substantial adverse effect on human beings.”

Finally, the court found no deficiency in the EIR’s analysis of cumulative impacts on public services. The EIR based its analysis of cumulative impacts on the evaluation of cumulative impacts made in connection with the adoption of the city’s general plan, which found no cumulative impact from city growth on fire services. Accordingly, the EIR reasonably concluded that any cumulative impact of the growth will be less than significant.

Traffic Impacts

The plaintiffs also objected to the analysis of one potential location for future construction of affordable faculty housing, arguing that the EIR should have evaluated potential impacts to additional roads in the immediate neighborhood. The court found, however, that the analysis of traffic and parking impacts of potential sites for faculty housing was sufficient because no site had yet been selected. As a program EIR, therefore, the master plan EIR appropriately evaluated the potential cumulative impacts of locating faculty housing near Grandview Avenue on the primary intersections in that area. Any site-specific impacts to the smaller residential streets in the neighborhood and related mitigation measures, however, were properly deferred until the affordable faculty housing project is planned and a project EIR is prepared.

Furthermore, the court found the reliance on a Transportation Demand Management (TDM) program to mitigate significant impacts caused by increased parking and traffic did not constitute impermissible deferred mitigation. The court noted that the TDM sets forth specific alternative policies that may be utilized to mitigate traffic growth, incorporates quantitative criteria, and sets specific deadlines for completion of the parking and traffic study timelines for reporting to the city on the implementation and effectiveness of the measures that will be studied. The plan also included a monitoring program which ensures that the public will have access to the information necessary to evaluate compliance with the Trustees’ obligations.

Parklands Impacts

In assessing the potential impact on area parklands, the EIR concluded that the impact on the East Bay Regional Park District would be insignificant because the master plan included ample on-campus recreation offerings and, therefore, use of off-campus recreational resource by the additional student population would be nominal because the on-campus facilities would adequately support the campus population. The court agreed with the trial court that this analysis was inadequate.

First, because the EIR focused on the entire regional park district, it failed to perform a project-level analysis of impacts to specific parks. In particular, it failed consider the specific impacts on two neighboring parks, Garin Regional Park and Dry Creek Pioneer Regional Park. The Trustees argued that the EIR’s analysis was sufficient because it was reasonable to conclude that the new student population would make the same “nominal” use of these parks “consistent with long-standing use patterns” and that the master plan included ample on-campus recreation offerings. The court disagreed, noting that the EIR failed to provide factual evidence to support this assumption. There were currently 12,586 full-time-equivalent students enrolled at the university. The EIR disclosed no attempt to determine the extent to which these students made use of the adjacent parklands or to extrapolate from such data estimated increased usage by the additional approximately 5,500 anticipated full-time equivalent students. Nor was any such calculation made for the existing approximately 1,200 residential students and the 600 students anticipated to live in the new student housing project. Moreover, the record contained no evidence regarding overall usage or capacity of the neighboring parks. As the trial court noted, evaluating the potential impact on the entire East Bay Regional Park District cast too broad a net and did nothing to expose potential impacts on the neighboring parks.

Furthermore, the fact that there were ample on-campus recreation opportunities did not support the finding that additional use of the nearby regional parks would be “nominal.” The types of recreational opportunities offered on campus and in the neighboring parks were significantly different. The athletic fields, recreation center, swimming pool and grassy fields found on campus were not comparable to the recreational opportunities available in the 4,763 acres of neighboring parkland. Without any data concerning the extent to which the current-size student body (or anybody else) utilized the adjacent parks, the court concluded it was not reasonable to assume that the “informal trails” available on a 130-acre open space reserve on campus would keep significant numbers of new students from making use of the neighboring parklands.

The court accordingly reversed the trial court’s judgment except to the extent it required the Trustees, before considering certification of a revised EIR, to revise their analysis of the impacts of the master plan and related site-specific projects to area parklands.

D.C. Circuit Court of Appeals upholds EPA’s Greenhouse Gas Regulations

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On June 26, 2012, in Coalition for Responsible Regulation, Inc., et al., v. Environmental Protection Agency, No. 09-1322 (D.C. Cir. June 26, 2012), the D.C. Circuit Court of Appeals upheld the Environmental Protection Agency’s Endangerment Finding and Tailpipe Rule regarding greenhouse gases. The court also upheld the agency’s interpretation of the Clean Air Act (CAA) requiring major stationary sources of greenhouses gases to obtain construction and operating permits. Opponents of these rules disputed the Endangerment Findings and EPA’s authority to regulate GHG emissions under the CAA based upon the finding.

Background and Procedure

The EPA promulgated the disputed rules following the Supreme Court’s holding in Massachusetts v. EPA that GHGs may be regulated as an air pollutant under the CAA. In response to this holding, the EPA first issued its Endangerment Finding for GHGs. The Finding was based “on a considerable body of scientific evidence,” and EPA concluded that emissions of specified GHGs “contribute to the total greenhouse gas air pollution, and thus to the climate change problem, which is reasonably anticipated to endanger public health and welfare.” Based on this finding, the EPA was required under the CAA to establish motor-vehicle emission standards for GHGs. The ensuing Tailpipe Rule set GHG emission standards for cars and light trucks as part of a joint rule-making with fuel economy standards issued by the National Highway Traffic Safety Administration.

Due to EPA’s standing interpretation of the CAA, the Tailpipe Rule automatically triggered regulation of stationary GHG emitters under the Prevention of Significant Deterioration of Air Quality (PSD) program and Title V. The PSD program requires state-issued construction permits for stationary sources producing either 100 tons per year (tpy) or 250 tpy of any air pollutant. Title V requires state-issued operating permits for stationary sources that have the potential to emit at least 100 tpy of any air pollutant. EPA then issued two rules phasing in stationary source GHG regulation. First, in the Timing Rule, EPA concluded that an air pollutant becomes subject to regulation under the CAA (and therefore to PSD and Title V) only once a regulation requiring control of that pollutant takes effect. Therefore, EPA determined major stationary emitters of GHGs would be subject to PSD and Title V permitting requirements on the date the Tailpipe Rule became effective—or the date when GHGs first became regulated under the CAA. Following the Timing Rule, EPA promulgated the Tailoring Rule, providing that only the largest sources of GHG emissions, those exceeding 75,000 or 100,000 tpy CO2e, would initially be subject to the GHG permitting. This rule was adopted after the EPA determined requiring permitting for all sources would be overwhelmingly burdensome for both permitting authorities and stationary sources.

A number of states and regulated industries filed petitions for review of these new GHG regulations, arguing the EPA misinterpreted the CAA or otherwise acted arbitrarily and capriciously.

Challenges to the Endangerment Finding.

Petitioners challenged EPA’s Endangerment Finding on numerous substantive and procedural grounds. All challenges were rejected by the court.

  1. EPA’s interpretation of CAA section 202(a)(1).

Petitioners argued that the EPA improperly interpreted CAA § 202(a)(1) as restricting the finding to a science-based judgment without considerations of policy concerns and regulatory consequences. Petitioners believed the EPA was required to consider the benefits of activities emitting GHGs, the effectiveness of emissions regulation, and the potential for societal adaptation to or mitigation of climate change. Petitioners argued that, by not considering these factors, EPA acted arbitrarily and capriciously.

The Court determined the plain language of CAA § 202(a)(1) was contrary to these arguments. The language of the section requires only that the endangerment evaluation relate to whether an air pollutant causes or contributes to air pollution which may reasonably be anticipated to endanger the public health or welfare. The court held that the evaluation process required “scientific judgment”—not policy discussions—about the potential risks of GHGs. The court also held that CAA § 202(a)(1) does not allow the EPA to consider, as part of the endangerment inquiry, the implications or impacts of regulations that might result from a positive endangerment finding.

  1. The Scientific Record

Petitioners also challenged the adequacy of the scientific record underlying the endangerment findings. Petitioners initially challenged the EPA’s reliance on publications issued by the Intergovernmental Panel on Climate Change (IPCC), the U.S. Global Climate Research Program, and the National Research Council.  The court summarily rejected this argument, noting the scientific literature was peer-reviewed and consisted of thousands of individual studies on GHGs and climate change. The court also rejected, as “little more than a semantic trick,” that EPA delegated its authority by relying on these studies. The EPA relied on the reports not as substitutes for its own judgment but as evidence upon which it relied to make its ultimate judgment. The court noted that EPA is not required to re-prove “the existence of the atom every time it approaches a scientific question.”

Finally, in their challenge to the adequacy of the scientific record, Petitioners argued EPA erred in reaching the Endangerment Finding due to scientific uncertainty surrounding climate change. The court responded by noting the “substantial” body of scientific evidence supporting the Endangerment Finding. The court held the existence of some uncertainty does not, without more, warrant invalidation of an endangerment finding. The statute itself is designed to be precautionary in nature and to protect the public health. Further, the Supreme Court itself ruled in Massachusetts v. EPA that the agency may make an endangerment finding despite lingering uncertainty. The court held that the EPA’s decision was supported by substantial evidence and that the agency had relied on the scientific record “in a rational manner.” The court noted that it was not its role to reweigh the evidence before it and reach its own conclusion.

  1. Lack of a quantitative threshold

Petitioners contended that the Endangerment Finding was arbitrary and capricious because the EPA did not define, measure or quantify either the atmospheric concentration at which GHGs endanger the public health or welfare, the rate or type of climate change anticipated to endanger the public welfare, or the risk or impacts of climate change. The court, again relying on the plain language of CAA § 202(a)(1), held that EPA is not required to establish a precise numerical value as part of its endangerment findings. Instead, section 202(a)(1) allows for a qualitative approach that allows the EPA to make case-by-case determinations based on the potential severity of harm in relation to the probability that the harm will occur.

  1. EPA’s definition of “air pollutant”

EPA defined the GHG “air pollution” and “air pollutant” subject to the Endangerment Finding as an aggregate of six GHGs, which the EPA called “well mixed greenhouse gases”: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). Industry Petitioners argued EPA’s decision to include PFCs and SF6 was arbitrary and capricious because motor vehicles do not emit these pollutants. The court responded that no petitioner established standing to make this argument, as no petitioner could demonstrate an injury-in-fact resulting from EPA’s decision to include PFCs and SF6 in the Endangerment Finding.

  1. Failure to submit Endangerment Finding for review by Science Advisory Board

Petitioners claimed that the EPA’s failure to submit the Endangerment Finding to the Science Advisory Board (SAB) violates its mandate to “make available” to the SAB “any proposed criteria document, standard, limitation, or regulation under the Clean Air Act” at the time it provides the same “to any other Federal agency for formal review and comment.” The court noted that it wasn’t clear this obligation was even triggered because it wasn’t clear that the EPA provided the Endangerment Finding to any Federal agency for formal review and comment—it had only been submitted to the Office of Information and Regulatory Affairs pursuant to Executive Order 12,866 for informal review. The court found that even if the EPA violated its mandate by failing to submit the Endangerment Finding to the SAB, Petitioners did not show this error was prejudicial to the rulemaking.

  1. Denial of petitions seeking reconsideration of Endangerment Finding

In the final challenge, Petitioners argued the EPA erred by denying all ten petitions for reconsideration of the finding. Petitioners asserted that internal documents and emails obtained from the University of East Anglia’s Climate Research Unit undermined the scientific evidence upon which the EPA relied. When determining whether to commence reconsideration of a rule, EPA considers an objection to be of “central relevance to the outcome” of that rule “if it provides substantial support for the argument that the regulation should be revised.” Additionally, the party raising the objection must demonstrate that it was impracticable to raise the objection during the public comment period.

The court rejected Petitioners’ assertion, finding that they failed to provide substantial support for their arguments that the Endangerment Findings should have been revised. The assessment had relied on over 18,000 peer-reviewed studies, and two errors identified in IPCC reports were harmless because EPA did not actually rely on such errors to reach the positive Endangerment Finding. Isolated errors identified by Petitioners did not rise to the level of substantial evidence required to support their arguments to overturn the Endangerment Findings.

Challenges to the Tailpipe Rule

Petitioners did not directly challenge the vehicle emission standards set by the Tailpipe Rule, and instead argued the EPA acted arbitrarily and capriciously by failing to consider and justify the costs of its conclusion that the Rule triggers stationary-source regulation under the PSD Program and Title V. The court rejected this argument and held that once EPA made the Endangerment Finding, the language of section 202(a)(1) created a non-discretionary duty that the EPA adopt regulation applicable to vehicle GHG emissions. The court noted this interpretation was supported by the Supreme Court’s decision in Massachusetts v. EPA.

Petitioners also advanced a claim under the Administrative Procedures Act, alleging that EPA failed to show that the proposed standards “would meaningfully mitigate the alleged endangerment.” The court rejected this argument, indicating that petitioner misread earlier D.C. Circuit decisions on EPA air regulations. EPA was under no requirement to establish a particular level of mitigation that the regulation had to achieve. Instead, EPA was only required to show that the Tailpipe Rule would contribute to “meaningful mitigation of greenhouse gas emissions.”

Finally, the court rejected an argument made by Petitioners that EPA should have considered the cost of stationary source permitting that would follow adoption of the Tailoring Rule. The D.C. Circuit had previously held that section 202(a)(2) reference only compliance costs to the motor vehicle industry and does not mandate consideration of costs to other entities not directly subject to the proposed tailpipe emission standards.

Challenges to EPA’s interpretation of PSD Permitting, Timing and Tailoring Rules

Petitioners challenged EPA’s longstanding interpretation of the scope of the permitting requirements for construction and modification of major emitting facilities under the CAA. Since 1978, EPA has defined “major stationary source” as a source that emits major amounts of “any air pollutant regulated under the [CAA].” This interpretation held through EPA’s PSD regulations adopted in 1980 and 2002. “Any pollutant” was interpreted by the EPA to include both criteria pollutants for the National Ambient Air Quality Standards (NAAQS) and non-criteria pollutants. As a result, when EPA determined that GHGs would become a regulated pollutant, emissions of more than 100 or 250 tpy of GHGs would trigger a PSD permitting requirement. Petitioners challenged this interpretation and argued that EPA could and should have avoided extending the PSD permitting program to major GHG emitters. The court adopted a plain meaning of section 169(1), which requires PSD permits for stationary sources emitting major amounts of “any air pollutant.” Both the EPA and the Supreme Court in Massachusetts v. EPA clearly established that GHGs are air pollutants. As a result, the court rejected Petitioners’ arguments that EPA should not have extended the PSD permitting program to major GHG emitters. The court rejected the Petitioners’ alternative interpretations of the PSD permitting triggers, as none cast doubt on the unambiguous nature of the statute.

Petitioners also challenged the Tailoring and Timing Rules established by EPA to facilitate initial regulations of GHGs. The court determined Petitioners lacked standing to challenge these two Rules because none had suffered an injury-in-fact as a result of the rules. Instead, the court found the Timing and Tailoring Rules actually mitigated Petitioners’ purported injuries, as many would be subject to PSD and Title V permitting requirements at an earlier time absent the rules.

First District Court of Appeal Upholds ARB’s Scoping Plan for AB 32, Finding the Plan is Not Arbitrary and Capricious

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On June 18, 2012, in Association of Irritated Residents v. California Air Resources Board (2012) ___ Cal.App.4th ___ (No. A132165), the First District Court of Appeal upheld the California Air Resources Board’s (“ARB’s”)  2009 Climate Change Scoping Plan, finding it complies with the requirements of California’s Global Warming Solutions Act of (2006) (“AB 32”) and that ARB’s adoption of the plan was not arbitrary or capricious. Continue reading →

Second District Orders Publication of Additional Sections of Opinion in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552

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On May 9, 2012, the Second District published parts 5-8 of its opinion in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552. These sections featured Petitioner’s claims of inadequate CEQA analysis for cumulative impacts, mitigation measures, alternatives, and recirculation. In each case, the court found in favor of Respondent Metro. Parts 3 and 4 of the opinion remain unpublished.

Cumulative impacts

Petitioner argued that the cumulative traffic analysis in Metro’s Environmental Impact Report (EIR) was inadequate because it failed to consider traffic impacts of related projects. Under CEQA, an EIR must discuss cumulative impacts of a project if the project’s incremental effects are cumulatively significant, that is, if the project’s effects are significant when considered together with related effects of past, current, and probable future projects. Metro’s EIR did not separately assess cumulative traffic impacts since the discussion of the traffic impacts of the project itself was already cumulative, in that it was based on a combination of existing and future conditions with and without the project.

The court held that in analyzing cumulative impacts, the agency’s discussion should note the severity of the impacts and likelihood of their occurrence, but need not provide the same level of detail as is provided for the effect of the main project. Thus, for example, Metro’s “summary of [project] projections” did not need to include analyses specific intersections that were not under environmental review when the draft EIR was circulated.

Mitigation

Petitioner also argued that Metro failed to provide adequate mitigation measures and improperly deferred mitigation for parking, noise, safety, and construction.  The court found that the EIR’s mitigation measures were not uncertain, speculative, or infeasible, and found no evidence that the measures would be ineffective, unfunded, or not implemented.

To address spillover parking, Metro adopted a measure to monitor parking activity and work with local jurisdictions to create permit parking programs where necessary. The EIR noted that Metro would reimburse local jurisdictions for these programs. The agency included alternative mitigation options such as metered parking where a permit program would not suffice. Petitioner argued that Metro could not assure formation or effectiveness of the permit program, and that such a program would be inadequate unless it retained residents’ current ability to park in their neighborhoods. The court disagreed. The court distinguished this case from Gray v. County of Madera (2008) 167 Cal.App.4th 1099, where a mitigation measure proposing to provide bottled water to compensate for a decline in water levels “defie[d] common sense” and was not substantially similar to residents’ pre-project conditions. In contrast, residents here would still have street parking, making their situation substantially similar to pre-project conditions. Additionally, the court refused to assume that simply because Metro could not require local jurisdictions to adopt the permit program, the mitigation measure was inadequate. The mitigation set for the a specific performance standard in the form of monitoring parking activity to determine if the light rail activity would increase parking utilization to 100 percent and, if so, requiring Metro to work with local jurisdictions regarding permit parking programs. Citing the second prong of Section 21081(a), which allows an agency to make a finding regarding a significant effect that changes lie within another agency’s jurisdiction, the court noted that the feact that Metro could not require a local jurisdiction to adopt a permit program, did not make the mitigation measure inadequate.

Metro’s EIR addressed removal of street parking with measures that included replacement parking and revised parking designs, such as diagonal parking. Petitioner contended a lack of evidence that such measures were feasible, given high land costs, or would actually be implemented. Unlike in Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, there was no acknowledgement by Metro of any “great uncertainty” as to whether mitigation would ultimately be funded or implemented. The court also noted Petitioner’s failure to challenge the EIR’s financial evaluation of Metro’s ability to build the project, which included allowance for mitigation measures. Since the mitigation explicitly stated that property would have to be acquired for replacement parking, and identified parcels for that purpose, the court found the mitigation measures were not uncertain or speculative and petitioner failed to meet its burden to identify any deficiency.

In anticipation of noise and vibration effects from the project, Metro’s mitigation measures included installation of sound walls alongside the rail line. The agency added that where those walls would not suffice, it would provide for sound insulation of residences to meet the applicable noise threshold. Petitioner again argued that the measure lacked evidence of feasibility, and did not include details on how such improvements would be provided. The Court rejected Petitioner’s arguments, finding that CEQA does not require a lead agency to detail how it will actually carry out the proposed mitigation measure, so long as it commits to satisfying specific performance criteria. Metro was also not required to restore residents to their original position and eliminate noise and vibration completely; the agency merely had to minimize impacts to less-than-significant levels.

Metro included mitigation measures to address safety impacts, such as coordination with affected cities and encouragement of emergency response updates, which had been successfully implemented on other Metro rail lines. Though Petitioner repeated its argument of lack of proof of effectiveness and actual implementation, the Court saw no reason to conclude that cities would fail to update their emergency response procedures as other municipalities had done in the past.

Finally, the EIR identified possible closure of lanes in major streets during project construction, and proposed providing alternative lanes on cross streets in cooperation with the cities, as well as limiting construction to nights and weekends. Petitioner argued that these measures improperly deferred mitigation and did not include performance standards. The Court countered that limiting street closure to weekend and evening hours was an acceptable performance standard. Moreover, Metro’s required compliance with traffic control plans formulated in cooperation with affected jurisdictions and in accordance with specified manuals offered additional performance standards.

Alternatives

Petitioner claimed that Metro’s failure to include a detailed examination of grade separation in a particular segment of the project resulted in an inadequate consideration of project alternatives. The court disagreed, finding the EIR evaluated a reasonable range of alternatives and no inadequacy in the EIR’s failure to include a detailed examination of the suggested alternative. Detailed analysis of the suggested alternative was neither required, since the proposed project on its own would decrease environmental impacts to a less-than-significant level, and the suggested alternative would not have offered substantial environmental advantages over the proposed project.

Recirculation

Finally, Petitioner argued that the Final EIR reflected major changes to the project made after circulation of the draft, requiring recirculation of the EIR for further public comment. Such changes included new information on grade separation at various intersections; signal phasing at one intersection; parking; and noise impacts. CEQA requires recirculation of an EIR when significant new information is added, such that the public is deprived of a meaningful opportunity to comment upon a substantial adverse environmental effect. The court found that the added information did not disclose a new substantial environmental impact or a substantial increase in severity of one of the project’s impacts. The court highlighted the fact that Petitioner did not identify how the new information would undermine Metro’s less-than-significant-impact conclusions. Thus, Metro’s decision not to recirculate was supported by substantial evidence.

 

The summary of the baseline portion of this decision can be read here:

http://rmmenvirolaw.flywheelsites.com/2012/04/second-district-upholds-agency-use-of-projected-future-condition-for-environmental-baseline/

Tomlinson v. County of Alameda

General Posted by   

(2012) 54 Cal.4th 281

The California Supreme Court held that the requirement for exhaustion of administrative remedies found in Public Resources Code section 21177, subdivision (a) of the California Environmental Quality Act (CEQA) applies to an agency’s decision that a project is categorically exempt from compliance with CEQA, so long as the public agency gives notice of the grounds for its exemption determination, and that determination is preceded by a public hearing at which members of the public had the opportunity to raise objections to the project.

The petitioners had participated in Alameda County’s administrative process to challenge the approval of an 11-unit subdivision in the unincorporated portion of the County near Hayward. The County Board of Supervisors determined that the infill exemption found at CEQA Guidelines section 15332 applied and approved the project after hearing the petitioners’ appeal from the planning commission.

The Court did not reach the petitioners’ arguments that the public agency’s description of the requirements for the infill exemption was misleading, where the county omitted any mention of the infill exemption’s criterion requiring that the project be located “within city limits.” The county did not quote the full language of the exemption in any of its notices and staff reports. Instead, it summarized the criteria and substituted “in an established urban area” for the proper phrase “within city limits” in the exemption in all explanations of the exemption in project materials. Petitioners asserted that this substitution misled and prevented them from raising the specific issue of whether the “city limits” restriction disqualified the project from using the infill exemption. The Court also did not address the argument that the petitioner’s extensive objections to the project on multiple grounds at public hearings, including a dispute about the project site’s characterization as an “urban area”, were sufficient to satisfy the exhaustion requirement.

The Court remanded the case to the First District Court of Appeal to determine whether the claims the petitioners raised were adequate to put the County on notice that the infill exemption did not apply, and whether the County’s omission of key criteria for the exemption excused the petitioner’s failure to exhaust on the specific issue of the city limits criterion. [The petitioners were represented by RMM partner Sabrina V. Teller.]

Salmon Protection & Watershed Network v. County of Marin

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(2012) 205 Cal.App.4th 195

The First Appellate District Court of Appeal affirmed dismissal of Salmon Protection & Watershed Network’s (SPAWN’s) complaint in intervention where the underlying tolling agreements were valid. Property owners SPAWN had challenged the adequacy of an EIR certified by Marin County in connection with a county-wide General Plan update implementing stream conservation policies. The trial court had sustained a demurrer to SPAWN’s complaint, which alleged that the group’s petition was untimely. 

Marin County had certified an EIR in connection with area-wide stream conservation policies. Thereafter, SPAWN entered into a series of tolling agreements that extended the limitation period for filing a complaint challenging the sufficiency of the EIR, during which time the parties were engaged in unsuccessful settlement negotiations. The Court held, against SPAWN’s arguments, that these tolling agreements were valid because the added time benefitted the County rather than SPAWN, and thus could be waived by the County. Because the tolling agreements were valid, the trial court had properly sustained demurrers to the complaint in intervention. [RMM Partner James G. Moose, Senior Counsel Jennifer S. Holman and Associate Jeannie Lee  represented the respondent County.]

Citizens for Open Government v. City of Lodi

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(2012) 205 Cal.App.4th 296

The Third Appellate District upheld the trial court’s judgment discharging a writ after the City of Lodi demonstrated full compliance with CEQA for a revised, recirculated EIR prepared for a use permit to develop a 35-acre shopping center. In 2005, the trial court granted a petition for writ of mandate in a proceeding challenging the City’s environmental review (Lodi First I).  The city council rescinded approval of the project and decertified the original EIR. In 2007, the city circulated revisions to the EIR for public review and comment.  The city concluded some of the comments it had received on the revised draft EIR were beyond the scope of the revisions and barred by res judicata. The city declined to provide substantive responses to these comments. In 2009, the city council conditionally approved the project entitlements and adopted findings of fact and a statement of overriding considerations for the project.

In order to proceed with the project, the city filed a petition to discharge the writ in the original proceeding. As part of this process, the city lodged a supplemental administrative record. Petitioner groups Citizens for Open Government (COG) and Lodi First filed separate lawsuits challenging the final revised EIR. Both groups contended the supplemental administrative record excluded documents, including internal agency communications and communications with city consultants.  COG filed a motion to augment the supplemental administrative record. The court granted the motion in part and denied the motion in part based on the attorney-client, attorney-work-product and deliberative process privileges. In 2010, following a hearing on the merits, the trial court granted the City’s request to discharge the 2005 writ in Lodi First I and deny the petitions challenging the revised EIR.

On appeal, Lodi First and COG argued the trial court erred in applying the deliberative process privilege to exclude some emails from the administrative record. Appellants also challenged the sufficiency of the revised EIR on numerous grounds and disputed the trial court’s ruling precluding them from challenging certain issues based on res judicata.

Under the deliberative process privilege, senior officials in government enjoy a qualified, limited privilege not to disclose certain materials or communications. These include the mental processes by which a given decision was reached and other discussions, deliberations, etc., by which government policy is processed and formulated. The deliberative process showing must be made by the one claiming the privilege. Not every deliberative process communication is protected by the privilege.  Instead, the privilege is implicated only if the public interest in nondisclosure clearly outweighs the public interest in disclosure.

In the trial court, the city argued the deliberative process privilege applied because the city manager, city attorney, community development director, and other consultants engaged in various deliberative discussions and document exchanges concerning revisions to the EIR. The privilege was required, the city argued, “to foster candid dialogue and a testing and challenging of the approaches to be taken…” On appeal, Lodi First claimed this assertion was insufficient to support nondisclosure through the deliberative process privilege. The appellate court agreed, finding the city offered a correct statement of policy, but that invoking policy was not sufficient to explain the public’s specific interest in nondisclosure of the documents at issue. As a result, the city failed to carry its burden, and the trial court erred in excluding 22 e-mails from the administrative record based on the deliberative process privilege.

While the trial court erred in excluding these documents, this error was not necessarily prejudicial. Under the standard for prejudicial error established by the California Constitution, the appellant bears the burden to show it is reasonably probable he or she would have received a more favorable result at trial had the error not occurred.

Lodi First acknowledged it could not satisfy its burden to prove prejudice on appeal because it had not seen the documents that were erroneously withheld. Lodi First claimed the improper withholding of the documents itself was prejudicial because it was impossible for Lodi First to acquire them. The appellate court disagreed and noted Lodi First should have sought writ review of the trial court’s ruling on the motion to augment the administrative record. In addition, the appellate court, citing Madera Oversight Coalition Inc. v. County of Madera (2011) 199 Cal.App.4th 48, disagreed with Lodi First’s contention that the incomplete record itself was a prejudicial error requiring reversal regardless of the actual contents of the withheld documents.

The appellate court upheld the revised EIR’s discussion of alternatives and cumulative urban decay impacts, the city’s selection of a baseline for urban decay impacts, cumulative impacts to agriculture, and a 1:1 conservation easement mitigation ratio.

Lodi First also attempted to argue the revised EIR failed to disclose cumulative water supply impacts. The trial court held that res judicata barred Lodi Frist from raising this claim. The appellate court agreed.

Res Judicata (claim preclusion) bars relitigation of a cause of action that was previously adjudicated in another proceeding between the same parties or parties in privity with them and that adjudication resulted in a final decision on the merits. In this case, a writ was issued in Lodi First I and was final on the merits.  The trial court granted Lodi First’s petition and held the 2005 EIR was inadequate under CEQA. The city chose not to appeal, and the ruling was final because the time to appeal passed.

Lodi first attempted to argue res judicata did not preclude its water supply challenge because it was based on new information and the city’s 2009 findings regarding the project’s water supply impacts differed from its 2005 findings. For the purposes of res judicata, causes of action are considered the same if based on the same primary right. A claim is based on the same primary right if based on the same conditions and facts in existence when the original action was filed.

The appellate court determined the problem of overdraft cited by Lodi First was not new evidence. The city’s own 1990 general plan identified overdraft in the aquifer. While Lodi First claimed new evidence established more information than the 1990 EIR, the critical fact was that the city’s water supply was inadequate to serve new development.  This was known at the time of the 2004 EIR. In addition, the court determined the findings were consistent in that both findings were that the project would have no significant impact on water supply and therefore, no mitigation was necessary

Finally, the appellate court disagreed with Lodi First that res judicata should not be applied to the water supply issue due to public policy. When the issue is a question of law rather than of fact, res judicata may not apply if injustice would result or if the public interest requires that relitigation be allowed. Lodi First’s water supply issue did not present a question of law, so the public interest exception did not apply.

This case demonstrates the limitations of the deliberative process privilege for public agencies. Agencies attempting to rely on this privilege must be prepared to support their assertion of the privilege with a specific showing that the nondisclosure outweighs the public interest in disclosure; broad policy statements are not enough to support application of the privilege.  In addition, the case offers an important reminder of the consequences of failing to raise all potential arguments in original CEQA proceedings, and indeed, most regular civil proceedings.

RMM partners Andrea Leisy and Howard Wilkins and associate Laura Harris represented real party in in interest Browman Development in this litigation.

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