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Fourth District Court of Appeal Holds Wal-Mart Project Inconsistent with General Plan Renewable Energy Requirements; CEQA Required City to Recirculate the EIR based on 350-Pages of New Analysis

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In Spring Valley Lake Association v. City of Victorville (2016) 248 Cal.App.4th 91, Division One of the Fourth District Court of Appeal reversed the San Bernardino County Superior Court’s decision in part, agreeing with the petitioner that revisions to impact analyses after the Draft EIR had been circulated for review constituted significant new information triggering recirculation, and that the Subdivision Map Act required the respondent city to adopt affirmative findings prior to approving a parcel map. The court also held that the project—a commercial retail development anchored by a Wal-Mart—was inconsistent with the city’s general plan.

Subdivision Map Act

The Court of Appeal held that the City of Victorville violated the Subdivision Map Act by failing, in approving the proposed parcel map associated with the project, to make the findings addressing the issues enumerated in Government Code section 66474, subdivisions (a) through (g). On its face, this section seems only to require that a local agency deny approval of a proposal parcel map if it makes any one of the specified findings. The section does not explicitly address what findings must be made in approving a proposed parcel map. The court held, however, that section 66474 does apply in the latter situation, and requires city and county legislative bodies, in approving parcel maps, to make affirmative findings on each matter addressed in subdivisions (a) through (g) of that section. In reaching this conclusion, the court relied on the following: (i) a related provision of the Subdivision Map Act (Government section 66473.5), which requires local legislative bodies, in approving parcel maps, to affirmatively find that such maps are consistent with the governing general plan and any applicable specific plan; (ii) a 1975 opinion from the Attorney General concluding that section 66474 requires affirmative findings for parcel map approvals as well as parcel map denials; and (iii) case law and secondary sources supporting the Attorney General’s broad interpretation of section 66474.

Consistency with General Plan

The Court of Appeal agreed with the trial court’s decision that the city’s finding that the project was consistent with the general plan’s requirement for on-site generation of electricity was not supported by substantial evidence. The general plan requires that all new commercial projects generate on-site electricity to the maximum extent feasible. As part of the project approvals, however, the city did not require the project to generate on-site electricity. In doing so, the city effectively found that generation of on-site electricity was infeasible. In support of this outcome, the EIR stated that there were many factors considered in determining whether the use of solar panels is cost effective, and described the project as being “solar ready.” But the EIR provided no discussion of those factors or how they applied to the project. Nor did the EIR discuss the feasibility of other alternatives such as wind power. The appellate court therefore held that the city’s finding that the project complied with the general plan requirement that commercial projects generate electricity on-site to the maximum extent feasible was not supported by substantial evidence. It is not clear why the court applied the substantial evidence standard to petitioner’s general plan consistency claims, rather than the traditional arbitrary and capricious standard.

Greenhouse Gas Emissions

The appellate court affirmed the trial court’s decision that the EIR failed to adequately address the project’s impact on greenhouse gas (GHG) emissions. In concluding the project would have no significant impacts on GHG emissions, the city relied on the project’s compliance with the general plan policy to exceed the Title 24 Building Energy Efficiency Standards for Residential and Nonresidential Buildings by 15 percent. The appellate court determined that this conclusion was not supported by the record. First, the court pointed out inconsistencies in the EIR. In one place, the EIR stated that the project would achieve a minimum of 14 percent increased efficiency over Title 24 Standards. In other places, including the technical reports, the EIR stated the project would only be a minimum of ten percent more efficient than Title 24 Standards. Second, in responding to comments, the city acknowledged that the EIR was “currently not in conformity” with the general plan policy that the project would comply with the new energy efficiency standards at the time of construction, and stated that “several of the project’s current energy efficient measures likely meet the 15 percent requirement.” The court found that, at most, the record showed that the project may comply, but not that it would comply with the general plan policy. Therefore, the city’s conclusion that the project would have no significant air quality impacts from GHG emissions was not supported by substantial evidence.

Recirculation under CEQA

Finally, the appellate court also held that the city’s revisions to analyses of certain impact topics constituted “significant new information” triggering recirculation of portions of the Draft EIR. First, the city added to the Final EIR information analyzing the project’s consistency with general plan air quality policies that had inadvertently been omitted from the Draft EIR. Noting that the public did not have a meaningful opportunity to comment on this information, the court found this information disclosed a substantial adverse effect, and therefore triggered the obligation to recirculate the draft EIR. Second, after the city circulated the draft EIR, the applicant substantially revised the project’s storm water management plan. Although no new impacts were identified, the final EIR included 350-pages of new water quality and hydrology analysis. The court held the new information triggered the duty to recirculate. As the court reasoned: “Given their breadth, complexity, and purpose, the revisions to the hydrology and water quality analysis deprived the public of a meaningful opportunity to comment on an ostensibly feasible way to mitigate a substantial adverse environmental effect.” Notably, the court reached these conclusions without attempting to relate its reasoning to the four examples within CEQA Guidelines section 15088.5, subdivision (a), of situations requiring recirculation.

 

Fourth District Court of Appeal Finds CEQA Review was not Required Prior to County Approval of a Memorandum of Understanding

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In Delaware Tetra Technologies, Inc. v. County of San Bernardino (2016) 247 Cal.App.4th 352, the Fourth District upheld the County of San Bernardino’s approval of a Memorandum of Understanding between the county, the Santa Margarita Water District, and the Fenner Valley Mutual Water Company, that laid the groundwork for developing a plan for a groundwater pumping project. The court held that environmental review was not required under CEQA prior to the county’s approval of the MOU.

The project involved a public/private partnership to construct 34 wells on property owned by Cadiz, Inc., to pump an average of 50,000 acre-feet of groundwater per year for 50 years, transport that water via pipeline to the Colorado River Aqueduct, and deliver that water to project participants, including the Santa Margarita Water District. The county entered into the MOU with Santa Margarita and the Fenner Valley Mutual Water Company (the project operator) to establish a process for completing a plan for the project. Specifically, under the MOU, the parties agreed that a groundwater management, monitoring, and mitigation plan would be developed in connection with the finalization of the EIR for the project that would govern the operation and management of the project by Fenner Valley during the operational phase of the project. Once completed, the plan would need to be reviewed by the county for final approval.

Relying primarily on Save Tara v. City of West Hollywood, the project opponents argued that the MOU was one of several necessary steps in approving the project, and the county was therefore required to perform environmental review prior to approval of the MOU. The Court of Appeal disagreed.

The question was whether the approval of the MOU by the county would commit it to an activity with direct or indirect impacts on the environment. The court determined that the county retained full discretion to approve or disapprove the project despite executing the MOU and therefore had not committed itself as the City of West Hollywood had in Save Tara. Further, the court found that the act of approving the MOU did not exclude the consideration of alternatives or mitigation measures, which would typically be part of the environmental review, citing Cedar Fair L.P. v. City of Santa Clara.

The appellate court emphasized that its opinion did not foreclose environmental review under CEQA; in fact, the MOU required that an EIR be prepared prior to final approval of the project. The approval of the MOU was not a sufficient commitment toward the project to require an EIR on its own. The opponents also argued that approval of the MOU violated a county ordinance on groundwater management, but that issue was decided in an accompanying unpublished opinion, which the court referenced in holding that the MOU did not violate the ordinance.

Fourth District Court of Appeal Upholds EIR for Groundwater Pumping Project

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In Center for Biological Diversity v. County of San Bernardino (2016) 247 Cal.App.4th 326, the Fourth District upheld the Santa Margarita Water District’s certification of a final EIR and approval of a plan to pump groundwater in San Bernardino County. The court overturned the trial court’s ruling that Santa Margarita was not properly designated as the lead agency under CEQA and held that the EIR’s description of the project was sufficiently accurate.

The challenged project involved a plan  to construct 34 wells on property owned by Cadiz, Inc., to pump an average of 50,000 acre-feet of groundwater per year for 50 years, transport that water via pipeline to the Colorado River Aqueduct, and deliver that water to project participants, including Santa Margarita. San Bernardino County entered into an MOU with Santa Margarita, which designated Santa Margarita as the lead agency for CEQA purposes and tasked them with preparing the EIR.

The project opponents argued that Santa Margarita was not the proper lead agency under CEQA because San Bernardino County had to approve the project before pumping could begin. The Fourth District disagreed, stating that Santa Margarita was the proper lead agency under CEQA Guidelines section 15051, subdivisions (a), (b), or (d). San Bernardino had the most authority over the pumping, but Santa Margarita had greater responsibility over the project as a whole, which was to be partially carried out by a private party as well as Santa Margarita. Further, the MOU between San Bernardino and Santa Margarita was an agreement between the parties which designated Santa Margarita as the lead agency, which satisfied section 15051, subdivision (d).

The opponents also argued that the project description in the EIR was misleading and inaccurate, with regard to the description of the project objectives, the pumping, the time frame for pumping, and the total amount of water that would be extracted. The court held that the project’s fundamental purpose was to “save substantial quantities of groundwater,” and not just groundwater lost to evaporation, and thus the objectives were not misleading. As to the duration of the pumping phase of the project, the court found that the pumping could be “extended for a limited time” to fulfill the terms of the water delivery contracts, and that it could be extended to reach the total amount that can be extracted under the plan (2.5 million acre-feet). The court held, however, that extending the project beyond the 50 years would require a new agreement and additional environmental review, which would be too speculative to require at the outset. Lastly, the court found that the EIR’s description of the rate and total amount of groundwater withdrawal were sufficiently defined to not be misleading.

Fourth District Court of Appeal Upholds Mitigated Negative Declaration for Small Residential Project, Finding that Evidence of Psychological and Social Impacts is Insufficient to Require the Preparation of an EIR

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On March 9, 2016, the Fourth District issued a decision in Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, upholding the City’s use of a mitigated negative declaration (MND) in its approval of a small residential project. The appellate court reversed the trial court’s ruling that an environmental impact report (EIR) was necessary because evidence of the project’s potential social impacts were insufficient to trigger the preparation of an EIR.

The project at issue involved subdividing an 11.6 acre property with a horse boarding facility into 12 residential lots. Project opponents and others in the community had enjoyed using the public horse boarding facility, known as Stock Farm, for 20 years. But the owner of Stock Farm decided to close down the facility and applied to the City for approval of the small residential project. The residential development was marketed as “Poway Equestrian Estates,” enticing potential owners with the prospect of boarding up to nine horses per lot. Because residential uses were legally permissible under the existing zoning and there was no evidence of any adverse environmental impacts that could not be mitigated to less than significant levels, the City approved the project under an MND.

Project opponents argued that the California Environmental Quality Act (CEQA) required the preparation of an EIR instead of an MND. The trial court agreed, concluding that there was substantial evidence of a significant impact on the City’s horse-friendly community character. For example, several public commenters expressed that the reason they had moved to Poway was because of the equestrian lifestyle and lamented that closing the stables would take a wholesome and positive activity away from the community’s youth. The members of the Poway Valley Riders Association (PVRA), which owns a 12-acre equestrian facility across the street from the project site, also complained that they would not have any other places to board their horses.

The Fourth District reversed the trial court’s ruling, focusing on the distinction between physical environmental changes and social or economic impacts. The court started by restating the established rule under CEQA that economic and social impacts resulting from a project are not considered significant impacts on the environment. Then the court addressed the extent to which “community character” must be considered under CEQA. Where “community character” involves aesthetic impacts, the court explained that CEQA requires adequate analysis and mitigation of such aesthetic impacts. But the court noted that the “community character” at issue in this case did not involve aesthetic or visual impacts so much as it involved “what is pleasing to the psyche” and the residents’ sense of well-being. The court found that there was no evidence the residential project would be visually out of character with the surrounding land uses because single-family homes could be found to the immediate north, east, and northwest. Ultimately, the court held that CEQA did not require the City to study the project’s potential psychological and social impacts upon the community character.

The court rejected the argument that the level of public controversy should in itself require an EIR to be prepared, citing San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012, 1026. The court also rejected the argument that trucks and horses associated with the equestrian facility on PVRA property across the street from the project site could have negative impacts on future residents of the project, quoting the holding in California Building Industry Association v. Bay Area Quality Management District (2015) 62 Cal.4th 369, 392, that CEQA does not generally require lead agencies to consider the effects of existing environmental conditions on a proposed project’s future users or residents. Finally, the court refused to consider project opponents’ arguments that the MND was deficient as to public safety and biological resources issues because Preserve Poway forfeited those issues when it chose not to cross-appeal.

 

 

 

Court Rejects EIR for Pest Program, Finding Objectives Too Narrowly Defined, and Thus No Reasonable Range of Alternatives

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The Third District Court of Appeal reversed the decision of the trial court and held that a programmatic EIR for a seven-year program to control an invasive pest violated CEQA. (North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647. The draft EIR evaluated eradication of the light brown apple moth, but the California Department of Food and Agriculture adopted a program to control the moth due to intervening spread of the moth and ultimate infeasibility of eradication. The court held that even before new information on feasibility of eradication came to light, the EIR contained an impermissibly narrow project objective, resulting in omitted analysis of pest control as an alternative to eradication.

The light brown apple moth is native to Australia and was introduced to California in 2007. Its traits of eating plant leaves and buds, adapting to new plants, and multiplying rapidly posed a significant danger to California ecology and agriculture, including potential extinction of sensitive species. This threat prompted the CDFA to prepare an EIR for a moth eradication program.

The draft EIR included five “alternatives” to the program, which the court determined were not true alternatives, but were instead tools to achieve eradication. The tools focused on disrupting mating patterns and introducing pesticides and natural predators. The draft EIR did not evaluate control as an alternative to eradication, and stated that the two mechanisms were fundamentally different because eradication had an end date, but control could potentially continue forever. Although the certified final EIR was for the eradication program, the adopted findings evaluated a seven-year control program. The program’s objective was also changed from eradication to protecting food supply and California’s agricultural economy.

The court held that even without this last-minute change from eradication to control, the EIR violated CEQA because the EIR failed to analyze pest control as a reasonable alternative to the eradication program. The process of selecting alternatives, it stated, begins with the establishment of project objectives, and the project’s artificially narrow objective of eradication precluded evaluation of alternatives that might have lesser environmental effects. Rather, protection of plants and crops were “clearly” the objectives and underlying purpose of the eradication program. The revised objectives in the final EIR underscored this conclusion.

The EIR’s failure to analyze the alternative “infected the entire EIR insofar as it dismissed out of hand anything that would not achieve complete eradication” of the moth. Though the department claimed the approved control program was narrower (less intensive) than the eradication program, and therefore fit within that program, the failure to analyze the control program in the EIR left the department unable to support this assertion with substantial evidence. The court held the final EIR’s selection of an alternative not analyzed in the EIR was prejudicial error.

The court continued with petitioners’ other contentions despite having already found reversible error. The court held petitioners’ claims of insufficiency of the evidence did not constitute a separate grounds for reversal of the judgment, and petitioners failed to show reversible error regarding the “No-Program” alternative or the EIR’s impact analyses. The court did not address the cumulative impacts contentions, finding that the reversible error necessitated a new cumulative impacts discussion.

California Supreme Court Issues Decision in CBIA v. BAAQMD

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The Supreme Court issued its opinion in California Building Industry Association v. Bay Area Air Quality Management District (2015) __Cal.4th__ (Case No. S213478). In one of the most closely-watched CEQA cases of the year, the Court addressed whether CEQA requires analysis of the existing environment’s impact on the residents and users of a proposed project.

The case involved a challenge to BAAQMD’s adoption of new CEQA thresholds of significance for air pollutants, including Toxic Air Contaminant (TAC) “receptor thresholds” ­– thresholds for “new receptors” consisting of residents and workers who will be brought to the area as a result of a proposed project – and thresholds for GHGs and PM2.5. The thresholds were published in the District’s 2010 CEQA Air Quality Guidelines. CBIA challenged the adoption of the thresholds on various CEQA grounds. Relevant here, CBIA claimed the receptor thresholds were invalid because CEQA does not require analysis of the impacts that existing hazardous conditions will have on a new project’s occupants.

The Court of Appeal narrowly determined that the receptor thresholds have valid applications irrespective of whether CEQA requires an analysis of how existing environmental conditions impact a project‘s future residents or users, and therefore were “not invalid on their face.”

The Supreme Court granted review, but limited the scope of review to the following issue: Under what circumstances, if any, does CEQA require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

In answering this question, the Court held that “agencies subject to CEQA generally are not required to analyze the impact of existing environmental conditions on a project‘s future users or residents. But when a proposed project risks exacerbating those environmental hazards or conditions that already exist, an agency must analyze the potential impact of such hazards on future residents or users. In those specific instances, it is the project’s impact on the environment ­– and not the environment’s impact on the project – that compels an evaluation of how future residents or users could be affected by exacerbated conditions.”

Based on its holding, the Court found CEQA Guidelines section 15126.2, subdivision (a), valid only in part. The Court noted that CEQA Guidelines section 15126.2, subdivision (a), indicates that CEQA generally requires an evaluation of environmental conditions and hazards existing on a proposed project site if such conditions and hazards may cause substantial adverse impacts to future residents or users of the project. Finding that CEQA calls upon an agency to evaluate existing conditions in order to assess whether a project could exacerbate hazards that are already present, the Court held that most of subdivision (a) is valid. The Court, however, found that the following two sentences were clearly erroneous and unauthorized by CEQA: “[A]n EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there.” The Court therefore, invalidated these two sentences of the Guidelines.

After marching through relevant CEQA sections, the CEQA Guidelines, and case law, the Court concluded that its holding was consistent with the language and purposes of CEQA. The Court also concluded that its decision was not inconsistent with Court of Appeals cases on this issue, including Baird and Ballona Wetlands, among others.

The issue of whether CEQA requires analysis of the environment on a project is sometimes referred to as “CEQA-in-reverse.” The Supreme Court took issue with that characterization, finding it “misleading and inapt.” The Court explained that “[b]ecause CEQA does sometimes require analysis of the effect of existing conditions on a project‘s future residents or users, such analysis is not the reverse of what CEQA mandates.”

The Supreme Court remanded the case to the Court of Appeal for reconsideration in light of the Court’s holding.

Court of Appeal Upholds EIR for Commercial Sand Mining Project but Remands for Failure to Comply With the Public Trust Doctrine

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The First District Court of Appeal upheld the lower court’s determination in part and reversed in part, finding the State Lands Commission’s EIR for a sand mining project adequate, but holding that the Commission did not comply with the public trust doctrine when it granted mineral extraction leases. (S.F. Baykeeper, Inc. v. Cal. State Lands Commission (November 18, 2015) ___Cal.App.4th ___, Case No. A142449.)

In 2014, the State Lands Commission approved the San Francisco Bay and Delta Sand Mining Project, which granted 10-year extensions of mineral extraction leases for dredge mining for marine aggregate sand under the San Francisco Bay. The lease parcels are all on sovereign lands owned by the State of California and are subject to the public trust.

The Commission published a Notice of Preparation in 2007 and released a draft EIR in 2010. Then, in 2011, using a new five-year average baseline against which the EIR measured environmental impacts, the Commission recirculated a revised draft EIR. In 2012, the Commission published a final EIR and a statement of overriding considerations, and approved a reduced project alternative. San Francisco Baykeeper, Inc. filed a petition for writ of mandate alleging that the Commission failed to comply with CEQA and violated the common law public trust doctrine.

Baykeeper argued that the Commission’s use of a five-year average baseline was improper and that the EIR should have used data from 2007, the year of publication of the NOP. The court, however, held that substantial evidence in the record, including data and statistics showing a significant decrease in production of construction aggregate in 2007, supported the baseline in the EIR.

The court also rejected Baykeeper’s arguments with respect to cumulative impacts from sand mining on erosion. The EIR determined that the project would have less-than-significant impacts because sand mining is not likely to cause measurable sediment depletion outside of mining areas. The draft EIR recognized studies suggesting that sand mining in the Bay contributes to erosion on beaches, but found no direct or empirical causal link. But after receiving numerous comments on this issue, the Commission conducted further analysis including new modeling and a review of two additional scientific articles. Again, the Commission found that there was no causal link, and determined in the final EIR that the project would have less than significant impacts on erosion. The court upheld this determination, rejecting Baykeeper’s argument that the Commission improperly used a ratio theory, as that was only one component of the analysis in the EIR and simply reinforced the Commission’s previous conclusions. Further, the court found that the new studies and analysis did not require recirculation because they did not change any of the substantive conclusions in the DEIR and did not significantly alter the main points of disagreement.

The court then turned to the Commission’s interpretation of CEQA Guidelines appendix G thresholds regarding mineral resources. The Commission interpreted the thresholds to question whether the project would interfere with important mineral resource deposit areas that should be conserved for purposes of extraction and not lost to an incompatible use, whereas Baykeeper posited that the EIR should have analyzed whether the project would deplete the mineral resource. The court pointed out that appendix G thresholds are only suggested and lead agencies have the discretion to develop their own thresholds. In addition, the court said that the Commission’s interpretation was supported by state policies regarding mineral extraction, and Baykeeper failed to provide any authority supporting a different interpretation.

Baykeeper also argued, and the court agreed, that the Commission did not properly provide notice to, nor properly consult with, the Coastal Commission or the City of San Francisco. The court emphasized that such a violation “requires reversal only upon proof of prejudice,” and found that Baykeeper failed to identify any information that would have been provided by these agencies but was omitted from environmental review as a result of the Commission’s notice and consultation violations. In fact, Baykeeper did request that the court take judicial notice of a 2015 letter regarding the project, but the court declined to do so because this did not constitute material information that was actually available when the Commission conducted its review. According to the court, because Baykeeper failed to demonstrate that pertinent information was omitted from the review process, the court could not find that the violation of notice and consultation requirements was prejudicial.

Finally, the court turned to the public trust doctrine and concluded that the Commission had an affirmative duty to consider whether the granting of private sand mining leases constitutes a permissible use under the doctrine, and the Commission failed to comply with that duty. The parties agreed that the project authorized the private use of land that is protected by the public trust, and that the Commission did not make any findings pursuant to the doctrine. The court rejected a series of arguments from the Commission, finding in part that it does not have “unfettered discretion to prefer sand mining as a preauthorized public trust use of the lease parcels.” Further, the court held that conducting a CEQA review alone does not fulfill obligations of the public trust doctrine. Thus, the court held that the Commission failed to conduct the required public trust analysis and remanded accordingly.

California Supreme Court Issues Major CEQA Decision in Newhall Ranch Case

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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.

Background

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.

Court Upholds EIR for Westside Subway Project

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The Westside Subway Extension public transit project will extend the heavy-rail Purple Line from downtown to the Westside of Los Angeles, bringing much needed relief from the infamous traffic congestion of Los Angeles. Due to concerns about seismic safety and the desire to locate stations with the highest ridership potential, the Los Angeles County Metropolitan Transportation Authority selected an alignment that would travel under Beverly Hills High School. This alignment drew opposition from the Beverly Hills Unified School District and the City of Beverly Hills. The school district and the city both filed CEQA lawsuits; the city also argued that Metro did not properly conduct a hearing for the project. In a published opinion, the Second District Court of Appeal upheld the EIR for the project and determined that Metro properly conducted the hearing on the project. RMM attorneys Whit Manley, Tiffany Wright and Laura Harris represent Metro. A summary of the case can be found here.

 

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