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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 This 2011 application superseded all earlier applications.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.

The Council on Environmental Quality Finalizes Guidance Directing Agencies to Consider Climate Change and Greenhouse Gas Emissions in NEPA Reviews

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The Council on Environmental Quality (“CEQ”) released final guidance providing a framework for federal agencies to quantify greenhouse gas (“GHG”) emissions for projects subject to the National Environmental Policy Act (“NEPA”). When addressing climate change, agencies should consider both the potential effects of a proposed action on climate change as well as the effects of climate change on a proposed action and its environmental impacts.

CEQ recommends using projected GHG emissions as a proxy to quantify impacts—along with providing a qualitative discussion of the relationship between GHG emissions and climate change—to assist federal agencies in making “a reasoned choice among alternatives and mitigation actions.” Both direct and indirect effects should be analyzed in comparison to the no-action alternative—amounting to cumulative effects analysis. The guidance expressly provides that a separate cumulative effects analysis for GHG emissions is not necessary. The preference is for a quantitative analysis of GHG emissions based on available tools and information. Where agencies do not quantify projected GHG emissions, a qualitative analysis should be included along with an explanation of why quantification was not reasonably available. Simply stating that the proposed project represents only a small fraction of GHG emissions globally is insufficient. Finally, proposed mitigation of GHG emissions should be evaluated to ensure they are “verifiable, durable, enforceable, and will be implemented.”

In analyzing how climate change will affect a proposed project, CEQ does not expect agencies to undertake original research or analysis; rather the expectation is that agencies will rely on existing, relevant scientific literature, incorporating such research by reference into an environmental document. Accounting for climate change during the planning process allows agencies to consider a project’s vulnerability to climate change, in addition to particular impacts of climate change on vulnerable communities, allowing agencies to explore opportunities to increase a project’s resilience to climate change as part of the initial design.

Overall, CEQ would have agencies treat the analysis of GHG emissions and climate change like any other environmental impact under NEPA. The guidance acknowledges that the “rule of reason” and proportionality play a role in determining the extent of analysis, which should be commensurate with the quantity of projected GHG emissions “as it would not be consistent with the rule of reason to require the preparation of an EIS for every federal action that may cause GHG emissions regardless of the magnitude of those emissions.”

This guidance does not carry the force and effect of law. Nevertheless, it does provide a common approach to be used by federal agencies in analyzing climate change, and is bound to be persuasive in determining whether an EIS adequately addresses climate change impacts.

Sixth District Holds Fair Argument Standard No Longer Applies to Whether a Resource is “Historical”

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In Friends of the Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457, the Sixth District Court of Appeal held that the fair argument standard does not apply to a lead agency’s decision that a resource is not a historical resource—abandoning its previous holding to the contrary in Architectural Heritage Assn v. County of Monterey (2004) 122 Cal.App.4th 1095.

The resource at issue—a wooden railroad bridge, referred to as the Trestle—was built in 1922 as part of a spur line to provide rail freight access to canning districts near downtown San Jose. It was not listed or eligible for listing in the California Register of Historical Resources, nor was it included in a local register of historical resources. As part of its trail system, the City of San Jose proposed to demolish the Trestle and replace it with a new steel truss pedestrian bridge. The city adopted a mitigated negative declaration based on an initial study that concluded the Trestle was not a historical resource. Project opponents filed a writ petition asserting that there was substantial evidence to support a fair argument that the Trestle was a historical resource and therefore an EIR was required. Applying the fair argument standard, the trial court found in favor of petitioners.

The Sixth District disagreed. In rejecting the fair argument standard employed by the trial court, the court focused on the statutory language of Public Resources Code section 21084.1, which defines historical resources for purposes of CEQA. It provides, in part, that a resource may be presumed historical, if it meets certain criteria, unless a preponderance of the evidence demonstrates that it is not historical. Where a resource is not presumptively historical, an agency has the discretion to decide whether it is or is not historical. The court stated that by allowing an agency to overcome a presumption with a preponderance of the evidence, the standard of review logically must be whether substantial evidence supports the lead agency’s decision, not whether a fair argument can be made to the contrary. Based on this determination, the court found that the Legislature could not have intended that a lead agency’s discretionary decision to identify a resource as historical would be subject to a less-deferential review—i.e., fair argument—than a decision regarding a resource presumed to be historical.

On Remand First District Holds BAAQMD’s Significance Thresholds Valid in Specific Instances

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In California Building Industry Association v. Bay Area Air Quality Management District (2016) 2 Cal.App.5th 1067, on remand from the California Supreme Court (California Building Industry Association v. Bay Area Quality Management District (2015) 62 Cal.4th 369), the First District found BAAQMD’s CEQA thresholds of significance for “new receptors” valid for specific purposes.

The First District was directed to re-analyze BAAQMD’s thresholds of significance for “new receptors” consisting of residents and workers who will be brought to an area of existing emissions as a result of a proposed project, in light of the Supreme Court’s decision. The Supreme Court held that CEQA generally does not require an analysis of how existing environmental conditions will impact future residents or users of a proposed project. In applying this principle, the Court of Appeal held that the receptor thresholds may be valid in the following instances—when voluntarily used on BAAQMD’s own projects; in analyzing whether a project exacerbates an existing environmental conditions; during CEQA review of school projects; and when analyzing housing development projects under CEQA exemption statutes. The court did not rule specifically on the propriety of the receptor thresholds with respect to determining a project’s consistency with general plans because it was not presented with a concrete example of their use in this context—but ruled that the receptor thresholds were not invalid on their face. While not facially invalid, the court held—consistent with the Supreme Court’s ruling—that the receptor thresholds could not be used for their primary purpose, which was to assess the effect of existing environmental conditions to future users of a project.

Fourth District Court of Appeal Upholds Mitigated Negative Declaration Against Urban Decay Challenge—Lay Witness Opinion Not Substantial Evidence of Economic Impacts

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In Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, certified for partial publication, the Fourth District Court of Appeal upheld a mitigated negative declaration providing insight on the subjects of urban decay and general plan consistency.

San Bernardino County adopted a mitigated negative declaration approving a 9,100 square foot general retail store. The intended occupant was Dollar General. The Joshua Tree Downtown Business Alliance, a group of local business owners, challenged the project on several grounds: (1) failure to adequately consider the project’s potential to cause urban decay; (2) failure to complete an EIR based on substantial evidence supporting a fair argument that the project would cause urban decay; (3) inconsistency with various economic goals and policies incorporated in the general plan; and (4) failure to disclose the intended occupant’s identity.

The Fourth District agreed with the lower court’s ruling that the county had considered urban decay but had simply concluded that because there was no evidence of a negative economic impact—there was likewise no evidence of urban decay. The court stated that economic impacts, alone, are not enough to require an EIR. By adopting a mitigated negative declaration, the county expressly found that there were no significant impacts through which economic impacts and urban decay could ultimately be traced.

The court further held that lay opinion regarding economic impacts did not qualify as substantial evidence. A business owner and former attorney with the Oregon Department of Justice provided extensive comments on the project’s potential to cause urban decay. The court stated that she was not an expert and was therefore not qualified to opine on whether the project would cause urban decay. Moreover, she had not provided any factual basis for her assertions. The county exercised appropriate discretion in deeming her testimony not substantial evidence.

The Fourth District also rejected petitioner’s claims that the project was inconsistent with the economic goals and policies in the general plan. Applying the abuse of discretion standard—rather than the fair argument standard as argued by petitioners—the court found that the county could reasonably conclude that the project was consistent with the general plan. The court stated that words in the policies such as “encourage” and “support” were “amorphous policy terms” that give the local agency some discretion.

Finally, in the unpublished portion of the opinion, the court rejected petitioner’s claim that the county had improperly withheld the identity of Dollar General as the intended occupant. CEQA did not require the county, in this instance, to identify the end user. In dicta, however, the court left open the possibility that disclosure of the end user may be required where it is “environmentally relevant.”

Written by Christina Berglund

Second District Court of Appeal Upholds Class 3 Categorical Exemption for a Car Wash Project on a Vacant Lot and Finds No Unusual Circumstances

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In Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, the Second District Court of Appeal determined that the City of Redondo Beach did not err in finding a combination car wash and coffee shop project categorically exempt from CEQA and that unusual circumstances exception did not apply. The site was previously a car wash, but was unused since 2001 and the original structure had been demolished, leaving a vacant lot. The city approved a conditional use permit (“CUP”) and determined that the project was exempt under CEQA Guidelines § 15303, as “new, small facilities or structures [and] installation of small new equipment and facilities in structures.”

The dispute between the parties on the exemption concerned whether a car wash fits within the category of “commercial buildings” as defined in CEQA Guidelines section 15303, subdivision (c), and whether the car wash met the size restrictions of that section. The court held that the list in 15303(c) is illustrative and the section expressly includes “similar structure[s].” The car wash qualified because it was a consumer-facing commercial business, similar to those listed in 15303(c), and it included a coffee shop which qualifies as a restaurant. On the issue of size, the court found that, because the project was going to be in an “urbanized area,” the size limit was 10,000 square feet instead of 2,500. So the project’s 4,080 square feet was well under the limit. Lastly, the court found that there was no evidence that the project would “involve the use of significant amounts of hazardous substances” and was thus exempt.

On the unusual circumstances exception issue, the court applied the two tests discussed by the California Supreme Court in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (“Berkeley Hillside”). Under the first test, the court first determines whether there are unusual circumstances under the substantial evidence standard, and, if unusual circumstances are found, “whether there is a reasonable possibility of a significant effect on the environment due to unusual circumstances” under the fair argument standard. The second test requires the challenger to establish unusual circumstances by showing that the project will have a significant effect on the environment.

In applying the first test, the court found that presence of other car washes in the surrounding area, and the fact that the site had been a car wash previously, indicated that the circumstances were not unusual. The court also stated that common operational effects, like noise, traffic, and parking do not constitute unusual circumstances in and of themselves. The court concluded that the petitioners had failed to produce substantial evidence supporting unusual circumstances based on the project’s features. The court therefore never reached the second, fair argument prong of the first test.

The court applied the second test from Berkeley Hillside, and found that petitioners failed to meet their burden under that test as well. Petitioners argued that the project will have a significant effect on the environment because operating a car wash would violate the city’s noise ordinance. The court found this unpersuasive because the city had found that the project would not violate the noise ordinance and took the extra step to condition approval of the project on its meeting the noise ordinance. Petitioners also argued that the project would have a significant adverse effect on traffic because the design of the car wash would cause backups within the property. The court stated that the flow of cars within the property was not “traffic” as defined by CEQA, and there was substantial evidence supporting the city’s finding that any such backups would not affect traffic on the streets.

The court concluded that neither of the Berkeley Hillside tests had been satisfied, and therefore the petitioners had failed to show unusual circumstances. The court upheld the city’s issuance of the CUP and finding that the project was exempt from CEQA.

First District Court of Appeal Holds that the Discovery Rule Does Not Apply to Challenges Brought Under Public Resources Code § 21167

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In Communities For A Better Environment v. Bay Area Air Quality Management District (2016) 1 Cal.App.5th 715, the First District Court of Appeal held a petition for writ of mandate as time-barred under Public Resources Code § 21167, subdivision (d). Petitioners argued that the ”discovery rule” should apply because the Bay Area Air Quality Management District (“District”) failed to provide public notice of the ministerial approval and the project itself (a change in operation at a transloading facility from ethanol to crude oil) was “hidden from the public eye.” The court held that the statute governed when the public was deemed to have constructive notice of a project, and the discovery rule postpones the accrual of an action beyond the date of the injury, not beyond the date when the plaintiff is deemed to have constructive notice.

The District issued a ministerial permit for the project in July 2013, which was not subject to CEQA. But the District did not file the optional notice of exemption (“NOE”) and the applicant began transloading crude oil at its facility in October 2013. The conditions of the permit were modified in October and December of 2013, and the District issued a second permit incorporating these modifications in February 2014. On March 27, 2014 petitioners filed a petition for a writ of mandate. The District argued that the petition was time-barred because it should have been brought within 180 days of July 2013, when the permit was issued. Petitioners argued that they only became aware of the project on July 31, 2014, and that the facility is completely enclosed making the change in operation “invisible.” The trial court dismissed the petition without leave to amend as time-barred under 21167.

The First District Court of Appeal distinguished Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929 (“Concerned Citizens”). In Concerned Citizens, the Court interpreted “the date of commencement of the project” to mean “commencement” of the project approved by the lead agency and analyzed in the EIR. Because the project had changed significantly, the petitioners could bring an action within 180 days of when they knew or reasonably should have known that the project commenced was substantially different from the approved project. Here, petitioners did not argue that there was a substantial change in the project, and instead argued that the discovery rule should postpone the accrual of the action until they had actual notice of the project. The First District found this argument to have been rejected in Concerned Citizens, as contrary to legislative intent.

The Court of Appeal also distinguished Ventura Foothill Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429 (“Ventura Foothills”). In that case, the height of a planned building was changed from 75 feet to 90 feet, and while a notice of determination (“NOD”) was filed because of the change, the NOD did not disclose the change in height. The court in Ventura Foothills determined that the 30-day statute of limitations for NODs only applied to the determinations announced in the NOD. Since the change in height was not disclosed, the 30-day statute had not run. Here, the petitioners could not point to any deficiencies in a required notice.

The court stated that in both cases the court interpreted the statute so that the triggering date for barring an action did not occur. Because petitioners could not argue for such an interpretation in this case, their claim was time-barred. Similarly, they could not amend their pleadings to show that the dates of constructive notice in 21167 had not occurred more than 180 days prior to their filing suit.

Second District Court of Appeal Holds that, On Direct Appeal, a Reviewing Court Cannot Issue a Writ of Mandate and Supervise Compliance with the Writ

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In Center for Biological Diversity v. Department of Fish and Wildlife (2016) 1 Cal.App.5th 452, a partially published opinion on remand from the California Supreme Court (Center for Biological Diversity v. Department of Fish and Wildlife (2015) 62 Cal. 4th 204), the Second District reversed in part and affirmed in part the trial court’s judgment.

In the non-published portions of the opinion, the Second District reversed the trial court’s decision where it was inconsistent with the opinion of the California Supreme Court. The Second District reversed on the issues of significance criteria selection and baseline calculation, and affirmed on the issues of cumulative greenhouse gas emission impacts and two mitigation measures that would violate Fish and Game Code section 5515. The Second District also reconsidered its previous ruling in the case on two issues in light of the California Supreme Court’s holding that comments filed after certification of the joint EIR/EIS were timely. The Second District considered comments and the responses thereto, but stuck to its original conclusion that the findings on Native American Cultural Resources and impacts of dissolved copper on steelhead smolt were supported by substantial evidence.

In the published portion of the opinion, the Second District considered whether it had the authority to, instead of remanding the matter to the trial court, issue its own writ of mandate to the Department of Fish and Wildlife (DFW) and supervise compliance. The developer/real party in interest requested that the court do so, and its motion was supported by DFW. The developer suggested that the California Supreme Court’s opinion in this case and the language of Public Resources Code section 21168.9 would allow the appellate court to do so. They also argued that the general principle of expedient resolution to CEQA litigation supported the appellate courts ability to issue its own writ of mandate.

The Second District looked first at the plain language of section 21168.9 and determined that there was some ambiguity in the statute’s use of the term “appellate court” because courts of appeal do have original mandate jurisdiction in some cases. But the court’s exploration of the legislative history of section 21168.9 found nothing to suggest that the legislature intended appellate courts on direct appeal to have the authority to issue writs of mandate.

The court then examined the lay of the land, in terms of CEQA and appellate practice, when section 21168.9 was adopted in 1984. According to the Second District, “the practice in 1984 … was for administrative mandate petitions to be filed in superior court,” and no statute provided appellate courts with authority to hear direct CEQA challenges at that time. Further, the Code of Civil Procedure—then and now—limits an appellate court to affirming or reversing and modifying the lower court’s judgment. And, after making its decision, the appellate court must remand the matter back to the trial court. The court found nothing to suggest that the legislature intended to alter this procedure when it enacted Public Resources Code section 21168.9. The court also stated that there is a presumption against repeal by implication, which applied to the Code of Civil Procedure sections governing appellate review.

The Second District concluded there was no authority for appellate courts on direct appeal to issue writs of mandate. Given that lack of authority, there was no way for appellate courts to supervise compliance either. Lastly, the court found that section 21168.9, subdivision (b) was clear in its requirement that trial courts retain jurisdiction over the lead agency to ensure compliance with the writ of mandate.

First District Court of Appeal upholds EIR for Plan Bay Area that correctly excluded statewide emissions reductions in developing strategies to meet SB 375’s emissions targets

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In Bay Area Citizens v. Association of Bay Area Governments (2016) 248 Cal.App.4th 966, the First District Court of Appeal interpreted SB 375 as requiring the California Air Resources Board (Board) and regional agencies to set and meet the emissions reductions targets through regionally developed land use and transportation strategies that are independent of existing statewide clean technology mandates.  Therefore, the court of appeal affirmed the trial court’s decision, finding that the appellant’s claims about the inadequacy of the EIR failed because they were based on a misinterpretation of SB 375’s requirements.

SB 375 requires the Board to provide greenhouse gas emissions reduction targets to each region while taking into account statewide mandates such as the Low Carbon Fuel Standard and the New Vehicle Emissions Standards. Then each regional metropolitan planning organization (MPO) must prepare a sustainable communities strategy to meet those targets. The Bay Area’s Metropolitan Transportation Commission and the Association of Bay Area Governments (collectively, the Agencies) prepared Plan Bay Area. The appellants commented on the Plan’s EIR stating that the Agencies should have counted reductions expected from preexisting statewide mandates. However, when the Board’s staff conducted a technical review of the Plan they stated that the Agencies had appropriately excluded greenhouse gas emissions reductions from other technology and fuel programs. The Board then issued an executive order with the staff’s technical report attached, accepting that Plan Bay Area, if implemented, would achieve the targets.

The appellants filed a petition alleging that the Agencies failed to comply with CEQA because they falsely relied on the assumption that SB 375 compelled them to exclude consideration of the statewide mandates when assessing strategies for meeting the emissions reductions targets. First, the court looked to the plain meaning and purpose of the statute and found that because the emissions reductions from the statewide mandates are projected to dwarf those achieved by SB 375, the whole statute would be superfluous if the MPOs were simply allowed to cite the expected reductions from preexisting initiatives. Further, the Board’s AB 32 Scoping Plan repeatedly emphasized that the regional land use and transportation strategies were distinct from the statewide mandates. Although the Board was required to take the statewide mandates into account when setting targets under SB 375, they were not compelled to take any specific approach and it was within their power to instruct regions to exclude consideration of reductions expected from statewide mandates. The final technical evaluation of Plan Bay Area clearly stated the Board’s approach when it confirmed that the Agencies correctly declined to include statewide mandates because they were not counted toward the adopted targets. The court went on to say that even if the legislation did not require exclusion of reductions from statewide mandates, the Board had discretion to do so.

Next, the court addressed the claims about the inadequacy of the Plan’s EIR. The court found that the appellant’s arguments were based on their misinterpretation of SB 375 and deemed the EIR adequate. The Agencies were not required to consider the appellants proposed alternative that relied on statewide mandates because, as discussed above, it did not comply with SB 375 and was therefore infeasible. Contrary to the appellant’s contentions, the EIR did not ignore statewide mandates. Consideration of the New Vehicle Emissions Standards and the Low Carbon Fuel standard were included when determining whether implementation of the Plan would result in a net increase in emissions and whether it would impede the goals of AB 32. Further, the court found that in light of the Agencies’ sufficient disclosures throughout the EIR, including when they did and did not consider statewide mandates, the appellant’s arguments amounted to an impermissible substantive attack on Plan Bay Area.

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