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Ninth Circuit Upholds EIS for Tahoe Regional Planning Agency’s Regional Plan Update

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On November 2, 2016, the Ninth Circuit Court of Appeals issued a published opinion upholding the Tahoe Regional Planning Agency’s environmental impact statement (EIS) for TRPA’s Regional Plan Update. The panel unanimously affirmed the district court’s summary judgment in favor of TRPA and against the Plaintiffs Sierra Club and Friends of West Shore. The published opinion explains that TRPA’s EIS adequately addressed the Regional Plan Update’s significant environmental impacts and that TPRA’s reliance on best management practices to reduce water quality impacts was not arbitrary or capricious and was supported by substantial evidence. The panel also affirmed the district court’s award of costs for preparation of the administrative record in favor of TRPA. The ruling is a significant step in TRPA’s efforts to restore Lake Tahoe’s treasured environment and revitalize Tahoe’s communities. RMM attorneys Whit Manley and Chip Wilkins represent TPRA in the litigation.

You can read more from the Sacramento Bee.

Caltrain Electrification EIR Upheld in Litigation Brought by High-Speed Rail Foes

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On September 26, 2016, Judge Goode of the Contra Costa County Superior Court, issued a ruling denying a petition brought by the Town of Atherton and organizations opposed to the statewide high-speed rail project. The court rejected their claims that the Peninsula Corridor Joint Powers Board (JPB), which operates the Caltrain commuter rail system between Gilroy and San Francisco, had illegally “piecemealed” its project to electrify the Caltrain system from the future high-speed rail system, which is planned to share the same electrified track into San Francisco. The petitioners claimed that because a portion of the electrification project funding is coming from the High-Speed Rail Authority and the electrification is needed for future high-speed trains to operate, the JPB should have analyzed both the high-speed train project and the Caltrain electrification activities as one project in the Caltrain EIR. They argued that the failure to do so improperly minimized consideration of project impacts, consideration of mitigation measures, and alternatives. The court rejected all of the petitioners’ arguments, finding that despite the relationship between the two projects, the Caltrain electrification project could properly stand on its own, whether or not the high-speed train system is ever completed on the Peninsula, and that the future operation of high-speed rail on the corridor was appropriately disclosed in the cumulative impacts analysis in the EIR. The ruling is a major victory for Caltrain, and contracts for further design work and eventual construction have already been approved. Sabrina Teller and Elizabeth Pollock represented the JPB in the litigation.  

 

Friends of the College of San Mateo Gardens v. San Mateo County Community College District

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Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937

In a unanimous decision, the California Supreme Court emphatically rejected the notion that public agencies should get no deference in deciding whether to treat proposed projects as changes to previously reviewed projects or as new projects under CEQA. In doing so, the court strongly disagreed with the reasoning presented in the Third District’s decision in Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288, which first articulated the “new project” threshold question as a de novo question of law for the courts. The Supreme Court concluded that Division One of the First District Court of Appeal erred in applying Lishman’s “new” project standard to the case at hand, which involved a community college district’s proposed changes to the disposition of a small building complex and landscaped area on a campus for which a campus-wide renovation plan was previously reviewed in an unchallenged mitigated negative declaration (MND). The district considered the subsequent changes in an addendum to the MND and approved the demolition of an existing complex of outdated buildings and their replacement with a new parking lot, concluding that the changes posed no new or more severe environmental impacts than were previously described in the adopted MND.

The Supreme Court granted review to resolve the question of whether Lishman’s “new project” test was the correct approach for courts reviewing subsequent review documents, or whether courts should follow the more deferential, substantial evidence standard explained in Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385. Few appellate courts had followed the Lishman approach after the court in Mani Brothers rejected it. Division One of the First District applied it to the college district’s case in an unpublished decision, but oddly declined to apply it again a few weeks later in its published decision, Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 201-202, thereby highlighting the conflict in the law.

The Supreme Court noted that the Lishman court’s focus on the similarities or lack thereof in the features associated with an originally-reviewed project and subsequent proposal as lacking any basis or standards in CEQA. The court further noted that because of the lack of any standards or framework for measuring the “newness” of a given project, a “new project” test applied by the courts “would inevitably invite arbitrary results.” Moreover, the court emphasized that, given the purpose of CEQA to ensure agencies consider the environmental effects of proposed actions, focusing on the characterization of a proposed project as a new project or a modified project misses the point of subsequent review. Rather, the court concluded, the fundamental determination an agency must make is whether an original environmental document retains some informational value, or whether the proposed changes have rendered it wholly irrelevant.

The court affirmed the college district’s view (shared by the Regents of the University of California, League of California Cities, California State Association of Counties, Association of California Water Agencies, California Building Industry Association, Building Industry Association of the Bay Area, and California Business Properties Association, who participated as amicus parties at the Supreme Court) that the question of whether an initial environmental document remains relevant in light of changed plans or circumstances is inherently a factual question for the agency to answer in the first instance and is reviewable under the deferential substantial evidence standard of review.

Following oral argument, the court ordered supplemental briefing on two issues: (1) the standard of review that applies to an agency’s determination not to prepare an EIR for modifications to a project that was previously reviewed by a negative declaration; and (2) whether CEQA Guidelines section 15162, as applied to projects initially approved by negative declarations rather than EIRs, was a valid interpretation of the governing statute, Public Resources Code section 21166, which does not mention negative declarations. Guidelines section 15162, subdivision (a) prohibits agencies from requiring a subsequent or supplemental EIR unless the agency determines “on the basis of substantial evidence in the light of the whole record,” that “substantial changes . . . will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.” The court rejected the petitioner’s argument that application of this substantial evidence standard in section 15162(a) to projects initially analyzed in negative declarations creates a CEQA loophole that permits agencies to evade their obligation to prepare an EIR under the less deferential fair argument standard. As the court explained, “the substantial evidence test referred to in the Guidelines does not, as plaintiff supposes, refer to substantial evidence that the project, as modified, will necessarily have significant environmental effects. It instead refers to substantial evidence that the proposed modifications will involve ‘[s]ubstantial changes’ that ‘require major revisions of the previous EIR or negative declaration due to the involvement’ of new or significantly more severe environmental effects.” The court held that section 15162 constitutes a valid gap-filling measure as applied to projects initially approved via negative declaration, including the college district’s project at hand.

Lastly, the court rejected the petitioner’s contention that the subsequent review schemes in the statute and Guidelines were inapplicable to the district’s project because the originally-approved campus renovation project was more akin to a plan or program than a specific project. Both the Court of Appeal below and petitioner relied on Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 to conclude that when an agency initially adopts a broad, large-scale environmental document (such as the college district’s original MND) that addresses the environmental effects of a complex long-term management plan, a court can find that a material alteration to the plan regarding a particular site or activity may be a new project triggering environmental review under Public Resources Code section 21151. The Supreme Court rejected the attempt to frame the original campus renovation plan and subsequent changes to the disputed area in this manner, holding that the tiering provisions, and therefore the Sierra Club decision, had no applicability here. The court noted that unlike the program EIR at issue in Sierra Club, the MND previously adopted by the college district was a project-specific review that could not be characterized as a first-tier document.

The Supreme Court remanded to the Court of Appeal’s consideration the merits of the district’s addendum and approval of the building demolition and parking lot project. The Court of Appeal had not previously reached the merits because of its conclusion that the subsequent project was “new.”

RMM partners Sabrina V. Teller and James G. Moose represented the respondent San Mateo County Community College District in the litigation from the trial court through the Supreme Court.

Sixth District Court of Appeal Upholds EIR for a Quarry Reclamation Plan, Rejecting Arguments Under CEQA and SMARA

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On August 31, 2016, the Sixth District issued a decision in Bay Area Clean Environment v. Santa Clara County (previously published at: 2 Cal.App.5th 1197)* upholding the County’s EIR for a quarry reclamation plan. The non-profit challenger asserted claims under the Surface Mining and Reclamation Act (SMARA) and the California Environmental Quality Act (CEQA). The court concluded that the county had not violated either statute.

The 3,510-acre quarry started producing limestone and aggregate in the early 1900s. In 2006, the Department of Conservation concluded that the quarry was violating SMARA because slope instability issues had not been properly addressed in the earlier 1985 reclamation plan. High selenium levels downstream of the quarry also posed a problem. In 2007 and 2010, Real Party in Interest Lehigh Southwest Cement Company applied to the county for amendments to the 1985 plan that would close one pit while allowing for the opening of new mining areas to replace the reclaimed pit. In particular, the 2010 application proposed a new pit called the South Quarry. But, subsequently, Lehigh applied in 2011 for an amendment to the 1985 reclamation plan that closed the problematic pit without proposing any new pits. This 2011 application superseded all earlier applications.

The county prepared an EIR for the reclamation plan amendment and made the requisite findings under both CEQA and SMARA. The county concluded that the project would result in significant and unavoidable impacts of excess selenium runoff during the 20-year period of reclamation. Bay Area Clean Environment and Midpeninsula Regional Open Space District filed challenges to the project. Midpeninsula ultimately settled with Lehigh, but Bay Area Clean Environment appealed the trial court’s denial of its petition for writ of mandate.

The Sixth District Court of Appeal started by addressing the SMARA claims. First, the court concluded that evidence in the record supported the county’s finding that the reclamation plan complies with SMARA with regard to water quality. The court explained that SMARA provided the county with discretion to allow reclamation activities that may result in adverse impacts—such as the additional deposition of selenium in Permanente Creek—if those actions were necessary to comply with federal and state laws. Second, the court held that evidence in the record supported the county’s conclusion that the project’s impacts to red-legged frogs were mitigated to the extent possible.

The court turned to the CEQA claims next. First, the court rejected the challenger’s argument that the county had failed to analyze the cumulative impact of the potential new South Quarry pit that had been proposed in the earlier 2010 application. The court explained that the South Quarry pit was not a reasonably foreseeable future project because the application for a use permit for the new pit had been withdrawn. The court also noted that the county had not engaged in improper piecemealing because the amendment to the reclamation plan was a stand-alone project that did not depend on the future approval of a South Quarry pit.

Second, the court addressed the argument that the county’s findings about impacts to the red-legged frog were insufficient and not supported by substantial evidence. The EIR reported that direct impacts to the frog would be less than significant. The EIR also determined that impacts to aquatic life, of which the frog is included, from excess selenium runoff in the downstream areas would be significant and unavoidable. The court concluded that substantial evidence in the record supported the EIR’s conclusions about both direct and indirect impacts to the frog. The court also held that a statement of overriding considerations for impacts to the frog was not required because the potential direct impacts to the frog were less than significant. Although it is not clear from the opinion, presumably the county adopted a statement of overriding considerations for the significant and unavoidable impact to aquatic life from excess selenium runoff. The court rejected the petitioner’s argument that a statement of overriding considerations directed specifically to the frog was required.

Finally, the court affirmed the trial court’s decision to grant Lehigh’s motion to augment the administrative record. Lehigh had argued that an email between a herpetologist and staff of the Department of Fish and Wildlife (DFW) should be included in the record under Public Resources Code section 21167.6, subdivision (e)(10). In the email, Dr. Mark Jennings explained to DFW staff that his 2007 report contained typographical errors and that he had in fact never observed the red-legged frog in one particular pond. This email was sent to the consulting firm that prepared the biological resources assessment for the EIR. The court concluded that the email could be properly included in the record as evidence of the presence or absence of the frog in the reclamation area that was relied upon by the consultants who prepared the biological study for the EIR.

* Review Denied and Ordered Not to be Officially Published ,December 14, 2016, per Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125.

Rocklin Crossings Project

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Rocklin Crossings Project

RMM represented retail developer Donahue Schriber during the environmental review process for, and litigation over, the Rocklin Crossings Retail project, located on Interstate 80 and Sierra College Boulevard in the City of Rocklin. Encompassing 55 acres, the project includes a Walmart as an anchor tenant and a Bass Pro Shop as another major tenant. The litigation over the project involved issues focused on urban decay, traffic impacts, air quality, and greenhouse gas emissions.

City of Santa Cruz

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City of Santa Cruz

RMM has provided advice on CEQA and land use issues to the City of Santa Cruz since 1998. During that time period, RMM has assisted City staff and consultants with the preparation of environmental documents for major projects such as the City’s Beach and Laurel Area Plan, the City’s General Plan, and a proposed desalination plant that could be built and operated in tandem with the Soquel Creek Water District.

Sierra Vista Specific Plan

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Sierra Vista Specific Plan

RMM worked as outside counsel to the landowner group that obtained approval of the Sierra Vista Specific Plan (SVSP) from the City of Roseville in 2010.  The SVSP covers a 1,624-acre area and authorizes the development of a mix of land uses, including 6,650 residential units, approximately 215 acres of commercial and office uses, approximately 60 acres of public/quasi-public, 267 acres of open space uses, 14 acres of paseos, and 90 acres of parks.

Elk Grove Unified School District

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Elk Grove Unified School District

In the several years leading up to the Great Recession of 2008, the Elk Grove Unified School District was the second-fastest growing school district in California, and had to build several high schools, middle schools, and elementary schools to keep up with population growth in its service area. During that time period, RMM actively assisted the District with various environmental documents, including EIRs for joint high school/middle school complexes and mitigated negative declarations for elementary schools. In doing this work, RMM had to apply not only general CEQA principles, but also provisions of CEQA and the Education Code specific to school siting issues.

State of California EIR on Well Stimulation Treatment (including Hydraulic Fracturing)

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State of California EIR on Well Stimulation Treatment (including Hydraulic Fracturing)

In 2013, the passage of Senate Bill 4 (Pavley) required the Department of Conservation (DOC) and its Division of Oil, Gas & Geothermal Resources (DOGGR) to prepare an EIR on the subject of “well stimulation” in California. “Well stimulation” includes, among other activities, “hydraulic fracturing,” commonly known as “fracking.” The Office of the Governor of California retained RMM to provide advice to the DOC and DOGGR in connection with the statutorily-mandated EIR. As required by statute, DOGGR certified this EIR on July 1, 2015, and Jim Moose continued thereafter to work with the state on issues related to the implementation of Senate Bill 4.

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