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Divided Appellate Panel Rejects San Diego Regional Transportation Plan EIR for Failure to Apply an Executive Order’s Greenhouse Gas Emissions Target

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In a 2-1 decision, the Fourth District Court of Appeal concluded that the environmental impact report (EIR) for a regional transportation plan for the San Diego area was inadequate because it did not apply a long-term greenhouse gas emissions reduction target contained in a 2005 Executive Order. The opinion, Cleveland National Forest Foundation v. San Diego Association of Governments, Case No. D063288, was filed Nov. 24, 2014, includes a vigorous dissent, and is available here.

The case involved the 2050 Regional Transportation Plan and Sustainable Communities Strategy, adopted in 2011 by the San Diego Association of Governments (SANDAG). The Regional Transportation Plan calls for investing $214 billion in local, state and federal transportation funds over the next 40 years for transit projects and improvements to highways, roads and streets. The Sustainable Communities Strategy is designed to reduce greenhouse gas (GHG) emissions to state-mandated levels over time. The San Diego region was the first region in California to produce a Regional Transportation Plan that includes a Sustainable Communities Plan, as required by Senate Bill 375.

At issue in the case was a 2005 Executive Order issued by former Gov. Arnold Schwarzenegger. The Executive Order established reduction targets for GHG emissions, including a target of 80 percent below 1990 levels by 2050. Following the 2005 Executive Order, the Legislature enacted the California Global Warming Solutions Act of 2006 (AB 32) and the Sustainable Communities and Climate Protection Act of 2008 (SB 375). SB 375 requires the California Air Resources Board to establish regional reduction targets for GHG emissions from cars and light duty trucks for 2020 and 2035, and to revisit those targets every eight years through 2050 or sooner if circumstances warrant. The Air Resources Board set initial regional reduction goals for 2020 and 2035, but not beyond.

The program EIR for SANDAG’s Regional Transportation Plan applied three different thresholds to analyze the significance of GHG emissions, based on CEQA Guidelines section 15064.4. The EIR’s analysis included standards tied to the years 2020 and 2035. The EIR discussed the Executive Order’s 2050 reduction target, but explained it did not apply it to the analysis because the Air Resources Board had not yet developed such a formal target. The EIR found the proposed transportation plan would lead to GHG emissions reductions through 2020, but increases in emissions after that.

The petitioners, Cleveland National Forest Foundation and Sierra Club, challenged the EIR on several grounds under CEQA. Among other things, the petitioners found fault with the EIR because it did not analyze longer term GHG emissions impacts under the goal contained in the 2005 Executive Order. SANDAG argued the EIR could not apply policy goals contained in the Executive Order because no statute or regulation had translated the Order’s goals into “comparable, scientifically based emissions reduction targets.”

The majority agreed with the petitioners that the EIR’s GHG impacts analysis was deficient. According to the majority opinion, the failure to use the Executive Order’s 2050 target as a significance threshold violated CEQA’s requirement for a “reasonable, good faith effort at full disclosure.” The majority referred to the omission as a failure to perform a “consistency analysis” with the Executive Order.

The majority also held that the EIR violated CEQA by failing to analyze a reasonable range of project alternatives, failing to adequately analyze and mitigate the transportation plan’s air quality impacts, improperly deferring the formulation of mitigation, and understating the plan’s impacts on agricultural lands.

The dissent described the majority’s requirement of a “consistency analysis” with the Executive Order as “judicial fiat, pure and simple” and “a new formulation of the law.” The dissent stated that a policy directive from the Governor’s office does not constitute a required threshold of significance under CEQA. According to the dissent, in the absence of the Legislature’s independent action in tasking the Air Resources Board with adopting regional 2050 GHG targets, the EIR was not required to consider the broad 2050 goals contained in the Executive Order.

Special CEQA provision regarding Sacramento downtown arena project is not unconstitutional.

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This case stems from one of the many efforts by opponents of the City of Sacramento’s decision to approve a partially subsidized downtown arena project to stop the project. Here, the project opponents argued Public Resources Code section 21168.6.6, which shortens several CEQA deadlines for the project, is unconstitutional. The Third District Court of Appeal disagreed in a published opinion: Saltonstall v. City of Sacramento, Case No. C077031 (Nov. 20, 2014).

As a result of the City’s efforts to retain the Kings NBA team, the NBA blocked sale of the team to the city of Seattle. But the NBA reserves the right to acquire the team and relocate it to another city if the downtown arena is not opened by 2017. To address this timeframe, the Legislature passed Senate Bill 743. Relevant to this case, the bill added section 21168.6.6 to the Public Resources Code. This section accelerates the ordinary CEQA litigation timeline, with provisions addressing, for example, speedy preparation of the administrative record. The section also augments the proof of harm required to obtain a preliminary injunction against the project. Specifically, a preliminary injunction may only issue if proceeding with the project presents an “imminent threat to the public health and safety” or if unforeseen historical or archaeological artifacts are discovered on the project site. The section applies only to the downtown arena project.

The project opponents initially sought a preliminary injunction in the trial court to stop demolition and construction activities for the downtown arena. The trial court declined to grant the injunction, and the project opponents appealed on the grounds that section 21168.6.6 violates the state constitution.

Project opponents first argued section 21168.6.6 violates the state constitution’s separation of powers doctrine. Project opponents reasoned that, by passing this section into law, the Legislature infringed on the power of the state courts to grant injunctive relief. The appellate court noted that while the section does change the standard for granting injunctive relief, nothing in the section prevents a court from issuing such relief. Therefore, the courts may still fulfill their adjudicatory function under the section.

In reaching this outcome, the appellate court emphasized that CEQA is a legislative act, subjective to legislative limitation and amendment. In fact, the court pointed out that the Legislature could exempt the downtown arena project entirely from the requirements CEQA. Such an exemption implicates no constitutional rights because rights derived from CEQA are granted by the Legislature.

Nor does section 21168.6.6 impermissibly interfere with the judicial branch by requiring the Judicial Council to adopt procedures for resolving actions, “to the extent feasible,” within 270 days. The appellate court noted the time-line is suggestive and, therefore, does not materially impair the ability of state courts to adjudicate cases pursuant to the section.

In light of its determination that section 21168.6.6 is constitutional, the appellate court declined to overturn the trial court’s decision to deny the preliminary injunction. The appellate court also rejected the City’s request for sanctions for failure to comply with Rules of Court, rule 8.276(b)(1). Requesting sanctions pursuant to this rule requires that the moving party file a motion supported by a declaration. The City did not file such a supported motion.

Petition for Review Filed in Friends of the Eel River v. North Coast Railroad Authority (Case No. S222472)

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Plaintiffs Friends of the Eel River and Californians for Alternatives to Toxics are currently seeking California Supreme Court review of the First District Court of Appeal’s recent opinion in Friends of the Eel River v. North Coast Railroad Authority (2014) 230 Cal.App.4th 85. Plaintiffs filed their petition for review with the Supreme Court on November 7, 2014. In Friends of the Eel River v. North Coast Railroad Authority, the First District upheld the trial court’s decision rejecting plaintiffs’ challenge to North Coast Railroad Authority’s certification of an EIR. The appellate court found that the federal Interstate Commerce Commission Termination Act preempted the local agency’s CEQA review of rail operations, which fell within the exclusive jurisdiction of the federal Surface Transportation Board. The court also held that the rail line’s previous agreement with Caltrans to prepare an EIR for the project did not estop the line from later asserting preemption. At the earliest, the Supreme Court is expected to decide whether to grant certification by early January 2015.

Fourth District decision holds San Diego’s Climate Action Plan violates CEQA

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Division One of the Fourth District Court of Appeal granted Sierra Club’s petition to enforce a climate change mitigation measure adopted by the County of San Diego. The court affirmed the decision below. Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152.

Mitigation measure CC-1.2, which was included in a program EIR for the County’s 2011 general plan update, committed the County to preparing a climate change action plan (CAP) with more detailed greenhouse gas (GHG) emissions reduction targets and deadlines, and comprehensive and enforceable GHG emissions reductions measures that would achieve specified GHG reductions by 2020. Sierra Club alleged that, contrary to this commitment, the County prepared a CAP that expressly did not ensure reductions. The County also developed associated guidelines for determining significance thresholds. Sierra Club alleged that CEQA review of the CAP and thresholds was performed after the fact, using an addendum to the EIR, which did not address the concept of tiering or the County’s failure to comply with the express language in CC-1.2, and contained no meaningful analysis of the impacts of the CAP and thresholds.

The court first rejected the County’s contention that Sierra Club’s mitigation-related claim was barred by the statute of limitations because it could have been brought with the challenge to the general plan update. The court found that Sierra Club did not challenge the validity of the general plan update EIR or the enforceability of the mitigation measures provided therein, but instead challenged the County’s separate approval of the CAP.

Next, the court held that with respect to the CAP as mitigation for a plan-level document, the County failed to proceed in a manner required by law by going forward with the CAP and thresholds project in spite of the express language of CC-1.2 that the CAP include more detailed GHG emissions reduction targets and deadlines. The County described the CAP’s strategies as recommendations, rather than requirements. It also relied on unfunded programs to support the required emissions reductions. The CAP’s transportation section did not include an analysis of the County’s own operations and the record contained contradictions surrounding programs over which the County had exclusive control. The County did not bind itself to implementation of its programs, and did not cite to any evidence supporting its belief that people would participate in the programs to the extent necessary to achieve the asserted reductions. In fact, the CAP expressly stated that it did not ensure reductions. Quantifying GHG reduction measures, the court stated, was not synonymous with implementing them.

The County also made the erroneous assumption the CAP and thresholds project was the same project as the general plan update, despite the fact that no component of the CAP or thresholds had been created at the time of the general plan update. Thus, the general plan update EIR did not analyze the CAP as a plan-level document that itself would facilitate further development. As a result, the County failed to render a written determination of environmental impact before approving the CAP and thresholds. By failing to consider the environmental impacts of the CAP and thresholds, the court noted, the County effectively abdicated its responsibility to meaningfully consider public comments and incorporate mitigating conditions. The project acknowledged it did not comply with Executive Order No. S-3-05, and would therefore have significant impacts that had not previously been addressed in the general plan update EIR.

Unpublished Fourth District decision holds petitioner did not present sufficient evidence to prove exception to categorical exemptions from CEQA

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In an unpublished opinion, the court held that petitioner failed to satisfy the fair argument test showing that the “unusual circumstances” exception precluded application of categorical exemptions under CEQA. (Paulek v. Dept. of Fish & Game v. Ramona Duck Club (Oct. 28, 2014) Case No. D065278.)

The Wildlife Conservation Board approved the acquisition of a conservation easement over a portion of property owned by Ramona Duck Club by the Department of Fish and Game (now the Department of Fish and Wildlife). The Conservation Board determined the easement was exempt from CEQA under two categorical exemptions, one pertaining to acquisition of lands for fish and wildlife conservation purposes (Class 13, Guidelines § 15313) and another for transfers of ownership interests in land in order to preserve open space, habitat, or historical resources (Class 25, Guidelines § 15325). Petitioner conceded that both categorical exemptions applied, but that the trial court erred in finding the unusual circumstances exception to the exemptions did not apply. Petitioner also contended the conservation easement was ineligible for a categorical exemption because the Board improperly considered mitigation measures in making its exemption determination. The court disagreed.

The unusual circumstances exception applies to nullify application of a categorical exemption where 1) the project presents unusual circumstances, and 2) there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances. Petitioner argued the Duck Club’s previous erection of a gate and the presence of rare and endangered plants on the conserved property were unusual circumstances creating a significant risk of adverse effects on the environment. Applying the less deferential fair argument standard, whereby the court reviews the record to determine whether it contains evidence of a fair argument that the project may have a significant effect on the environment, the court held petitioner’s cited facts did not amount to unusual circumstances.

Even assuming the circumstances qualified as unusual for a conservation easement, the court further concluded there was no showing that there was a chance of significant effects on the environment due to those circumstances. The court noted the conservation easement did not grant the Duck Club any new rights, but merely identified certain preexisting rights that would be reserved, and thus did not cause the environmental effects. The use of lead shot for non-hunting purposes would not have a significant effect on the environment caused by the easement. Use of lead shot was not permitted on the property; but even if it were, the easement reserved that right, rather than creating it. There was no causal connection between the gate and the easement, nor between the easement and endangered plants.

Petitioner failed to exhaust his administrative remedies on the mitigation issue, but the court held that even if he had exhausted, his argument would fail. To the extent the conservation easement mitigated any of the Duck Club’s impacts on the property, it did not do so because they were caused by the conservation easement, but because preservation and protection of resources was the easement’s very purpose.

 

Second Appellate District clarifies facts and reaches different outcome than in prior published opinion, striking down a condition requiring a public access easement for a coastal development permit

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On rehearing, the Second Appellate District determined a public access easement required in a coastal development permit was an unconstitutional exaction based on the facts in the case Bowman v. California Coastal Commission, Case No. B243015 (Oct. 23, 2014). An earlier blog post describing the court’s original published opinion and the underlying facts of the case can be found here.

In short, Walton Emmick purchased approximately 400 acres of land in San Luis Obispo County that contained a single, uninhabitable residence and a barn in a state of disrepair. In 2002, Emmick applied to the County for a coastal development permit (CDP) to connect an existing well to the house. Emmick also received over-the-counter permits authorizing dry-rot removal and repairs to the roof and deck. Significantly, the County Code exempts repair and maintenance activities “that do not result in any change to the approved land use of the site or building…” from CDP requirements. Emmick began work pursuant to the over-the-counter construction permits but did not begin any of the work under the CDP.

As explained in the prior opinion, the original CPD included a condition imposing a lateral easement for public access along the shorefront portion of the property. No appeal to this condition was filed. Later, however, the County rescinded the first CDP and issued a second CDP that removed the condition imposing the easement. Environmental groups and two coastal commissioners appealed the second CDP to the California Coastal Commission, and the Commission accepted jurisdiction. After hearing, the Commission determined that the easement condition contained in the original CDP was permanent and binding on the landowner, and removal of the easement condition would violate the policy favoring public access to coastal resources. The Commission conditioned its permits on the implementation of the easement contained in the County’s original CDP.

Emmick’s estate filed a petition for an administrative writ of mandate to eliminate the public access condition from the CDP. The estate argued that the access easement condition constitutes an unlawful exaction of its property under the Fifth Amendment.

In its original opinion, the Court of Appeal denied the petition. The court determined that the estate failed to exhaust its administrative remedies because it had not challenged the County’s original CDP imposing the easement condition. Ordinarily, explained the court, the failure to pursue administrative remedies in an administrative mandamus action will bar a party from pursuing a remedy in court under the doctrine of collateral estoppel. In reaching the conclusion that Emmick’s estate had failed to exhaust, the court determined that Emmick had relied on the original CDP to make improvements on the property.

On rehearing, the court emphasized that, in fact, Emmick only completed work pursuant to the over-the-counter permits. Since these improvements were exempt from CDP requirements, the court concluded that Emmick had not relied on the original CDP. In light of these facts, the court concluded the doctrine of collateral estoppel did not support the court barring Emmick’s arguments due to a failure to exhaust administrative remedies.

The court then considered whether the access easement condition violated the Nollan and Dolan regulatory takings test: an argument the court did not previously reach. In this case, the easement lacked the “essential nexus” required by those cases since Emmick never accepted any benefit of the original CDP. Therefore, forcing Emmick to accept the access easement condition would amount to an unconstitutional taking.

This case presents an unusual about-face from an appellate court following a rehearing on a published opinion. The result of the rehearing here emphasizes the importance of the factual record in a mandamus case.

 

Supreme Court Declines Review of High-Speed Rail Bonds Suit

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The California High-Speed Rail project achieved another victory on October 15 when the state Supreme Court declined to hear a suit challenging the issuance of bonds for the rail system’s construction. The Court did not offer explanation for its decision.

A Sacramento Superior Court judge had ruled that the rail’s funding plan was inconsistent with Proposition 1A, the 2008 voter-approved initiative for the project that laid out initial funding, because the plan relied on uncertain future revenue sources. The Third District Court of Appeal disagreed in California High Speed Rail Authority v. Superior Court, and ordered the trial court to enter judgment validating the authorization of the bond issuance for purposes of the proposition.

The project is currently estimated to cost $68 billion. Earlier this year, the project secured future funding whereby it will receive a portion of the state’s cap-and-trade proceeds. Construction of the first rail segment is already underway in Fresno, where crews are demolishing buildings and relocating utilities to make way for the tracks. Opponents continue to challenge the project, but for now, the High-Speed Rail project is chugging ahead.

On Remand, Trial Court Must Consider Whether Federal Mining Law Preempts California’s Moratorium on Suction Dredge Mining

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In the recently published decision of The People v. Rinehart (Oct. 8, 2014) Case No. C074662, the Third District Court of Appeal considered whether criminal enforcement provisions of the Fish and Game Code addressing suction dredge mining are preempted by federal law. Although the court did not conclude that California’s ban on dredge and suction mining is preempted, the court left open the possibility that it is.

Section 5653 of the Fish and Game Code requires those operating vacuum or suction dredge mining equipment to obtain a permit from the California Department of Fish and Wildlife. A permit may be issued if the Department determines the proposed suction dredge mining “will not be deleterious to fish.”

In 2009, the Governor signed Senate Bill 670, prohibiting the Department from issuing new permits under 5653, and imposing a statewide moratorium on instream suction dredge mining until the Department has undertaken the conditions required by Fish and Game Code section 5653.1. Under that provision, the Department must satisfy numerous requirements, including environmental review of the standing 1994 suction dredge mining regulations, before the moratorium is lifted.

This case began when the District Attorney of Plumas County filed a criminal complaint against Defendant Rinehart alleging that he violated Fish and Game Code section 5653 by operating suction dredge mining equipment in waters closed to that type of equipment. Rinehart demurred to the complaint and argued that Fish and Game Code sections 5653 and 5653.1 operated together to create a de facto ban on suction dredge mining in California. Rinehart reasoned that this de facto ban was an unconstitutional interference with his federally-protected mining rights under the Mining Act of 1872. The trial court overruled the demurrer, holding that Fish and Game Codes sections 5653 and 5653.1 were not preempted by federal law. The trial court thereafter convicted Rinehart for possessing and using vacuum and suction dredge equipment without a permit. Rinehart appealed.

The Court of Appeal reversed and remanded the case to the trial court for further consideration of the preemption issue. In an opinion authored by Justice Hull, the court explained the constitutional principles at play, noting that Congress has authority over the regulation of federal lands under the United States Constitution Property Clause. But not all state regulation of federal land is preempted under the Property Clause. States are free to enforce state criminal and civil law on federal lands so long as the state law does not conflict with the “operation or objectives of federal law.” In this case, the Mining Act of 1872 sets forth the federal government’s stance on mining and mineral exploration on federal land. The act encourages surveying and mining for valuable minerals, and if a private citizen perfects a claim in compliance with the act, the claimant secures exclusive right of possession (but not title) and use of the claim.

The Court of Appeal concluded that the factual record before it insufficient to reach a decision. Instead, the court identified two discrete issues for the trial court to address on remand: (1) Does Fish and Game Code section 5653.1 operate to prohibit the issuance of permits required by section 5653; and if so, (2) does this prohibition on dredge mining permits render the defendant’s exercise of federal mining rights impracticable? Although the court remanded the issue to the trial court for further consideration, the decision nevertheless represents a considerable victory for proponents of dredge mining in the state.

Petition for Writ of Certiorari Submitted to the U.S. Supreme Court Contesting the Ninth Circuit’s Decision Upholding USFWS’s Biological Opinion on Delta Smelt

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Under the Endangered Species Act (ESA), if the Secretary of the Interior concludes that a federal agency action will jeopardize a species listed as threatened or endangered, then the Secretary must use the best scientific and commercial data available to identify reasonable and prudent alternatives that are economically and technologically feasible. Petitioners in State Water Contractors v. Jewell presented the U.S. Supreme Court with the following questions related to the Act’s directive: 1) Must the Secretary address in the administrative record the economic and technical feasibility of proposed “reasonable and prudent alternative,” including the effects of the proposed alternatives on third parties? 2) May the Secretary disregard the “best scientific data” on the ground that considering the data would lead to a less “conservative” result, because scientific certainty is impossible, or because the Secretary has considered a range of data in reaching a conclusion?

This case arose after the U.S. Fish and Wildlife Service (FWS) issued a Biological Opinion (BiOp) in 2005 which found that operation of the state’s two largest water projects, the State Water Project and the Central Valley Project, threatened the delta smelt, and thereby curtailed those projects’ operations. The district court found major flaws with the BiOp and ordered FWS to reconsider it, but the Ninth Circuit reversed. The appellate court held that FWS was precluded as a matter of law from considering the economic effects of its proposed restrictions on project operations on Californians. The court also excused FWS’s failure to use the best available scientific data in formulating its opinion. Petitioners argued that the Ninth Circuit’s decision exacerbated the harmful effects of California’s drought, created circuit splits, and contravened the Supreme Court’s precedents.

The BiOp, which the appellate court described as “a big bit of a mess,” concluded that unless the quality and quantity of the delta smelt habitat improved, the smelt would not recover from their downward population trend. The BiOp specified various actions as reasonable and prudent alternatives (RPAs) to the status quo, including limiting the amount of water the projects could pump for certain uses. Petitioners claimed that the amount of water sacrificed to implement the RPAs could have met the needs of over one million households for a year, or irrigated two hundred thousand acres of farmland.

District Court decision

Petitioners brought suit alleging the BiOp violated NEPA, the ESA, and the Administrative Procedure Act. The district court held the BiOp invalid. First, it found FWS had failed to establish that its RPAs met the requirements for a reasonable and prudent alternative under 50 C.F.R. section 402.02, including the requirement that the proposed restrictions be economically and technologically feasible. The court also held that the analyses supporting the specific flow prescriptions set forth in the RPA were fatally flawed and predominantly unsupported, given that 1) FWS failed to use the best available science in calculating flow rates to reduce the number of fish drawn into the pumping stations and 2) the BiOp adopted a flawed methodology to set limits on salinity in the Delta in the autumn of years categorized as above-normal or wet. The court found the agency’s decision “was arbitrary and capricious and ignored the best available science showing that a bias was present.”

Ninth Circuit decision

In a divided panel, the Ninth Circuit reversed. The majority agreed with FWS that the agency was not required to explain why its proposed RPAs met the feasibility standard set forth in the agency’s own regulations. The court also upheld FWS’s decision to use raw salvage data, concluding that normalized data was not tailored to protect the maximum absolute number of individual smelt, as the BiOp’s approach was. The court noted that although ideally FWS would have discussed its reasoning in using that data, the agency’s choice was entitled to deference. One judge sitting by designation from the Eighth Circuit dissented, arguing that because the concerns relating to the RPAs’ feasibility had been raised, FWS was required to at least address those concerns in the BiOp or in the administrative record. The dissent also argued that FWS had failed to use the best available science. The dissent also concluded that the agency’s means of determining where in the Delta the salinity reaches two parts per thousand was arbitrary and capricious, and disagreed with the majority’s decision to ignore the expert witnesses.

Argument for granting the writ

Petitioners described the issues presented as ones of “exceptional national importance.” They argued cert is warranted to resolve a circuit conflict over whether a consulting agency must consider the effects on third parties when proposing reasonable and prudent alternatives to agency action. Furthermore, petitioners noted, whether the ESA requires or precludes an agency from considering the economic impact of its proposed restrictions on agency activity on third parties is a question of recurring importance, given the fact that the federal government conducts thousands of ESA consultations every year. Petitioners argued, that, contrary to the Ninth Circuit’s interpretation, the presence of the feasibility requirement in the definition section of the regulations made the requirement more central to the agency’s obligation of reasoned explanation than it would if the requirement appeared elsewhere. By failing to consider feasibility, petitioners stated, FWS entirely failed to consider an important aspect of the problem, and therefore acted arbitrarily and capriciously. This would not mean that an RPA requirement authorizes FWS to balance the life of delta smelt against the impact of restrictions on project operations; but in choosing among possible alternatives that would avoid jeopardy, an agency would be required to consider the impact of the various effective alternatives on third parties, “in order to avoid unnecessary harm to humans in the course of protecting plants and animals.”

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