The California Supreme Court issued its highly-anticipated decision in Center for Biological Diversity v. California Department of Fish and Wildlife. The case, which involved a challenge to an EIR prepared for the Newhall Ranch development project in Southern California, provided the first opportunity for the Supreme Court to weigh in on the analysis of greenhouse gas emissions and climate change impacts under CEQA. The Court also addressed important issues regarding mitigation for protected species and exhaustion of administrative remedies.
In 2010, the California Department of Fish and Wildlife (DFW) and the United States Army Corps of Engineers (the Corps) prepared a joint EIS/EIR for two natural resource plans related to Newhall Ranch – a proposed land development that included over 20,000 dwelling units as well as commercial and business uses, schools, golf courses, parks and other community facilities. Of relevance in the case, the EIR found that the project’s emissions of greenhouse gases would have a less-than-significant impact on the global climate, and that the project could significantly impact the unarmored threespine stickleback but adopted mitigation measures would avoid or substantially lessen that impact.
Supreme Court Decision
The Supreme Court addressed three issues: (1) Does the EIR validly determine the development’s greenhouse gas emission would not significantly impact the environment? (2) Are mitigation measures adopted for protection of a freshwater fish, the unarmored threespine stickleback, improper because they involve a prohibited take of the fully-protected species? (3) Were petitioners’ comments on two other issues submitted too late in the environmental review process to exhaust their administrative remedies under Public Resources Code section 21177?
Greenhouse Gas Impacts
In analyzing greenhouse gas emissions, the EIR explained that the project would cause an annual emissions increase of 269,053 MTCO2E. The EIR noted that while the increase is “an obvious change to existing, on-site conditions,” the global nature of climate change and the “absence of scientific and factual information” on the significance of particular amounts of GHG emissions make the change insufficient to support a significance determination. The EIR accordingly went on to consider whether the project’s emissions would impede the state’s compliance with the statutory emissions reduction mandate established by AB 32.
The EIR’s method for determining whether the project would impede achievement of AB 32’s goals was modeled on the Air Resources Board’s use, in its Scoping Plan, of comparison to a “business-as-usual” projection as a measure of the emission reductions needed to meet the 2020 goal (determined to be a reduction of 29-percent from business as usual). Because the EIR’s estimate of actual annual project emissions was 31 percent below its business-as-usual estimate, exceeding the Air Board’s determination of a 29 percent reduction from business as usual needed statewide, the EIR concluded that the project’s GHG emissions would not impede achievement of AB 32’s goals and were therefore less than significant for CEQA purposes.
The Court first addressed whether consistency with AB 32’s emissions-reduction goals was an appropriate significance threshold for greenhouse gas emissions. In upholding the use of the threshold, the Court noted that, to the extent a project incorporates efficiency and conservation measures sufficient to contribute its portion of the overall greenhouse gas reductions necessary, one can reasonably argue that the project‘s impact is not cumulatively considerable, because it is helping to solve the cumulative problem of greenhouse gas emissions as envisioned by California law. Under these circumstances, the court explained, evaluating the significance of a residential or mixed use project‘s greenhouse gas emissions by their effect on the state‘s efforts to meet its long-term goals makes at least as much sense as measuring them against an absolute numerical threshold.
Although the Court determined that the EIR employed a legally permissible threshold of significance, it held that the EIR’s finding that the project’s emissions would not be significant under that threshold was “not supported by a reasoned explanation based on substantial evidence.”
The Court explained that DFW erred in assuming that because the Scoping Plan concluded that the State of California, as a whole, had to reduce its GHG emissions by 29 percent compared with the hypothetical “business-as-usual” scenario, the project would not have significant GHG-related impacts if the project itself also reduced its own GHG emissions by 29 percent compared with what would have occurred under a business-as-usual scenario. The Court explained that “the EIR’s deficiency stems from taking a quantitative comparison method developed by the Scoping Plan as a measure of the greenhouse gas emissions reduction effort required by the state as a whole, and attempting to use that method, without consideration of any changes or adjustments, for a purpose very different from its original design: To measure the efficiency and conservation measures incorporated in a specific land use development proposed for a specific location.” In other words, the EIR simply assumed that the level of effort required in one context, a 29-percent reduction from business as usual statewide, would suffice in the other, a specific land use development. The Court held there was no substantial evidence to support that assumption. Therefore, the EIR’s reliance on the project-specific reduction in GHG emissions compared to the business as usual scenario was not sufficient to support the conclusion that GHG impacts would be less than significant.
Although the Court found DFW’s record to be inadequate to support the conclusion that GHG-related impacts were less than significant, the Court did provide some guidance regarding potential alternative approaches to GHG impact assessment that other agencies around the State might follow going forward in the future.
Mitigation for Fully Protected Species
Finding that the project could result in significant impacts to special status wildlife and plant species, DFW adopted numerous mitigation measures for biological impacts. Two mitigation measures provided for collection and relocation of special status fish, including the fully protected unarmored threespine stickleback, during construction in, or diversion of, the Santa Clara River.
The Court held that specifying these actions as mitigation in an EIR violated the Fish and Game Code section 5515’s prohibition on authorizing the taking or possession of fully protected fish in mitigation of project impacts under CEQA. The Court explained that DFW may conduct or authorize capture and relocation of the stickleback as a conservation measure to protect the fish and aid in its recovery, but the agency may not rely in a CEQA document on the prospect of capture and relocation as mitigating a project’s adverse impacts.
Exhaustion of Administrative Remedies
The Court of Appeal held two of the petitioners’ challenges to the EIR, regarding impacts on Native American cultural resources and on steelhead smolt, were not preserved because they were not brought to DFW’s attention until after the public comment period on the Draft EIR had closed.
The Supreme Court disagreed. It held that the petitioners adequately exhausted their administrative remedies for these issues because the issues were presented to DFW during the public review period provided by the Corps pursuant to NEPA, which, under the circumstances, constituted a “public comment period” for purposes of CEQA. The Court was careful to note that it need not decide whether every federally mandated comment period on a final combined EIS/EIR also constitutes a CEQA comment period for purposes of section 21177, subdivision (a). The Court explained that because DFW independently reviewed petitioners’ comments on the final EIS/EIR, contributed its expertise to the drafting of responses and revisions based on those comments, and included those responses and revisions in the final version of the EIR it certified and relied on in making its approval decision, the purpose of the exhaustion requirement had been served. Therefore, the Court concluded that the disputed comments were timely under section 21177, subdivision (a) because they were submitted during a public comment period provided by CEQA.
Concurring and Dissenting Opinions
Justice Corrigan issued a concurring and dissenting opinion. She agreed with the majority that the mitigation measures described in the EIR for the unarmored threespine stickleback constitute a taking prohibited by the Fish and Game Code. She also agreed that the methodology used to assess the significance of GHG emissions was consistent with CEQA. She disagreed, however, with the portion of the majority opinion finding that the GHG analysis was not supported by substantial evidence. According the Justice Corrigan, the level of detail the majority demanded from the EIR was contrary to both the deferential standard of review and the majority’s approval of the methodology used to assess GHG significance.
Justice Chin issued a strongly worded dissenting opinion. He agreed that the threshold of significance used in the EIR to assess GHG impacts was appropriate but disagreed with the majority‘s conclusion that the EIR did not adequately explain why a projected 31 percent reduction in GHG emissions is consistent with legally mandated reduction goals in AB 32. Justice Chin also disagreed with the majority‘s holding that the proposal to move the unarmored threespine stickleback fish out of harm‘s way was a taking under the Fish and Game Code, and that, therefore, the EIR could not call the program a mitigation measure.