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USFWS Extends Eagle Take Permits to 30 Years

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The U.S. Fish and Wildlife Service extended the maximum term for programmatic “take” permits under the Bald and Golden Eagle Protection Act to 30 years. This means that renewable energy project developers – particularly wind project developers – can apply for permits that authorize recurring “take” (i.e., disturbance or killing) of eagles that is unavoidable even with mitigation. The rule eclipses the five-year limit on programmatic take permits instituted in 2009.

The act prohibits the “take” of bald and golden eagles, their nests, or eggs, unless allowed by permit; specifically, one cannot “pursue, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb” the eagles without permission. Wind energy projects can result in accidental takes when eagles fly into the windmill blades. While most project developers implement measures to direct eagles away from the blades, such as by attracting the birds to reflective material above the blades and locating the projects in less-populated zones, some takes are unavoidable even with such mitigation.

Until now, many developers opted not to apply for programmatic take permits, given the inefficiency of the permit’s five-year duration compared to the decades-long timeframe of renewable energy project operations. Instead, developers would either apply for standard permits, which authorize individual takes, or not apply for any permits. The new regulations do not change the fact that project developers are not legally required to apply for take permits before proceeding with their projects. The downside to this approach, however, is that a developer faces civil and criminal penalties for unpermitted takes done “knowingly” or with “wanton disregard.”

Although the permits can now extend up to 30 years, the length of each permit will depend on the characteristics of the projects, such as the project’s duration and the projected impacts to eagles. Additionally, permits issued for longer than a five-year period will undergo evaluations every five years to assess fatality rates, conservation and mitigation effectiveness, and eagle population levels. Applicants for these longer permits are also required to commit to adaptive management, which involves system monitoring with the goal of continually understanding and improving a project’s effect on eagles.

The issuance of a take permit is a federal action requiring compliance with the National Environmental Policy Act, meaning applicants must prepare an environmental assessment or an environmental impact statement in order to obtain a permit. The rule went into effect on January 8, 2014.

Will Cap-and-Trade Money Fund the High Speed Rail?

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Governor Jerry Brown would like to fund a portion of California’s high-speed rail project with proceeds from cap-and-trade fees. Brown plans to propose directing millions of dollars garnered from carbon producers’ fees toward the $68 billion project. The governor would allocate hundreds of millions of dollars in 2014 alone.

California has already acquired $3.4 billion in federal funding to start constructing the rail. Project opponents, however, have challenged complementary state bond funding in court, creating a potential funding gap. In High Speed Rail Authority v. All Persons Interested, the Sacramento Superior Court declined to validate High Speed Rail Authority’s attempt to issue more than eight billion dollars in bonds to start construction. Construction, however, is still slated to begin early this year.

Governor Brown’s proposal will likely be included as part of his annual budget plan that will be released Friday, January 10, 2014.

First District Publishes Decision Upholding San Francisco’s Expansion of Plastic Bag Restrictions

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On January 3, 2014, the First District Court of Appeal ordered publication of Save the Plastic Bag Coalition v. City and County of San Francisco. We previously wrote about the case here.

The League of California Cities and the California State Association of Counties jointly submitted a request for publication. In support of this request, the groups pointed out that: no other published decision has applied the rules of preemption to single-use plastic bag bans; the opinion suggests that if environmentally beneficial components are an integral aspect of a project from its inception, they may be considered when determining that a categorical exemption from CEQA applies to the project; the opinion clarifies that local agencies can use the Class 7 and Class 8 categorical exemptions and operate in a regulatory capacity; and the opinion provides helpful guidance regarding what qualifies as substantial evidence under the fair argument standard. The court did not state which, if any, of these arguments influenced its decision to publish the opinion.

Court of Appeal Rules City of Berkeley Did Not Need EIR for Downtown Construction Project

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Parker Shattuck Neighbors v. Berkeley City Council (2013) ___ Cal. App. 4th. ___ (Dec. 4, 2013).

In the last published CEQA case of 2013, the First District Court of Appeal upheld the City of Berkeley’s decision not to prepare an EIR for a mixed-use and residential project where petitioners failed to show that the project would have a significant effect on the environment.

The Parker Place Project is a three-parcel mixed-use and residential development that will replace a Honda dealership at the intersection of Parker and Shattuck streets in downtown Berkeley. Three environmental site-assessment reports revealed that the lots had contained underground gasoline storage tanks, as well as volatile organic compounds (VOC) in the soil and water samples. However, VOC levels did not exceed contaminant thresholds established by the San Francisco Regional Water Quality Control Board, and the studies concluded that contamination would not likely require cleanup and at least some chemicals were naturally occurring. All storage tanks underlying the property were removed.

Two years after removal of the last tank, developer CityCentric applied to begin constructing the project. The city council approved it, and petitioner Parker Shattuck Neighbors challenged the approval. The trial court ordered the city to vacate its approval for failure to hold a public hearing after modifying the project. The city conducted a second round of administrative proceedings and ultimately proposed a mitigated negative declaration (MND) after finding that mitigation could reduce any potential environmental impacts to less-than-significant levels. Parker Shattuck sought to set aside approval of the MND and to compel the city to prepare an EIR. The group was primarily concerned that the site’s soil contamination was a significant environmental impact, which the MND failed to adequately mitigate.

A lead agency must prepare an EIR whenever substantial evidence supports a fair argument that a proposed project may have a significant effect on the environment. It is the petitioner’s burden to demonstrate a “fair argument” for environmental harm. The Court of Appeal held that Parker Shattuck failed to identify substantial evidence supporting a fair argument that potential health risks to workers and future residents might constitute a significant environmental impact. It did not consider whether the MND contained adequate mitigation measures because insignificant effects do not require mitigation.

The court declined to address whether CEQA required assessment of the effects of the environment on a project (in addition to the effects of a project on the environment) because it found that here, petitioner was arguing that the project would physically change the environment by disturbing contaminated soil. However, the court rejected the notion that the existence of toxic soil contamination at a project site is itself necessarily a significant impact requiring CEQA review and mitigation. The court also found that the site’s appearance on a list of hazardous locations merely meant it was not categorically exempt from CEQA review; it did not mean the project required an EIR.

The court did not decide whether adverse effects confined only those who build or reside in a project can ever render the effects of a physical change significant, given that CEQA generally does not regulate environmental changes that do not affect the public at large. Here, Parker Shattuck did not identify evidence sufficient to support a fair argument of significance even if there were health risks to the project’s workers and future residents. A scientific expert’s suggestion to investigate further, the court added, was not substantial evidence of an adverse impact.

Draft EIR of Sacramento Kings Arena Released

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On December 16, 2013, the city of Sacramento released the notice of availability of its draft EIR for the new downtown Sacramento Kings arena. The analysis, promulgated pursuant to SB 743, analyzes the arena’s anticipated environmental impacts related to noise, traffic, and air quality, among other effects. The city will be required to implement mitigation measures for any significant impacts.

The “Entertainment and Sports Center” project site covers a 6-square-block area bordered by 3rd and 7th Streets on the west and east, and J and L Streets on the north and south. The project includes demolition of up to 857,943 square feet of the existing Downtown Plaza buildings and their underground parking garages, and construction of a 780,000-square-foot, 17,500-seat NBA arena and up to 1.5 million square feet of office, retail, housing, and hotel uses at the site. Project developers also plan to use the site for “major entertainment and civic events.” The center will replace the Sleep Train Arena in north Natomas as the home arena of the Kings.

The EIR focuses its analysis on 13 issues, including light and glare, noise and vibration, and transportation and circulation. The issues range from localized concerns – e.g., the change in demand for public utilities such as electricity demand and wastewater collection facilities – to broader concerns like contribution to climate change. The analysis evaluates a range of project alternatives, including different locations for the arena. Woven into this discussion are a number of “areas of controversy” identified by public comment letters that were received during the notice of preparation, such as the management of traffic coming in from the freeway, and the availability of onsite and offsite parking.

The EIR’s 45-day public comment period runs from December 16, 2013 through January 31, 2014. A public EIR workshop will be held Wednesday, December 18th at 6 p.m. in the City Hall lobby, and a public hearing to take comments on the draft EIR is set for 5:30 p.m. on January 23, 2014 in the City Council Chambers.

Court upholds San Francisco’s expansion of plastic bag restrictions in unpublished case

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Save the Plastic Bag Coalition v. City and County of San Francisco, First Appellate District, Division 2, A137056, December 10, 2013.

In 2012, San Francisco enacted an ordinance expanding existing restrictions on the use of plastic checkout bags by retail establishments in the city. Save the Plastic Bag Coalition challenged the ordinance, contending that, first, it did not comply with CEQA, and second, it was preempted by the state Retail Food Code. The trial court denied the Coalition’s petition and decided in favor of the city.

In an unpublished decision, the First District Court of Appeal upheld the trial court’s decision and the revised ordinance. The holding aligned with outcomes in other recent cases involving plastic bag bans in Marin County and Manhattan Beach.

1. CEQA

There was no dispute that the ordinance was a project under CEQA, and therefore subject to further environmental review unless it was exempt. The city had found that the ordinance qualified for two categorical exemptions, and therefore could be adopted without first preparing an EIR. The Coalition argued that the city was precluded by law from relying on a categorical exemption for this project, or, alternatively, that the “unusual circumstances” exception to the categorical exemptions applied to the action.

Categorical exemptions

The Coalition did not dispute that the record contained substantial evidence that the ordinance fell within two categorical exemptions aimed at regulatory actions to protect the environment. Rather, the Coalition argued that the city committed two legal errors by relying on those exemptions. First, it argued no city larger than Manhattan Beach could rely on a categorical exemption for a plastic bag ordinance, based on language in the Supreme Court’s earlier decision in Save the Plastic Bag Coalition v. City of Manhattan Beach. Second, it argued the city was precluded by law from relying on the categorical exemptions in section 15307 and 15308 of the CEQA Guidelines because those exemptions only apply to “regulatory actions,” and the 2012 ordinance was a legislative action.

As to the first issue, the court found nothing in Save the Plastic Bag Coalition v. City of Manhattan Beach decision to support the Coalition’s contention that San Francisco could not rely on a categorical exemption simply because it was larger than Manhattan Beach. In fact, Manhattan Beach was not even a categorical exemption case. Regarding the second issue, the court in the more recent case, Save the Plastic Bag Coalition v. County of Marin, had stated that although ordinances are always legislative in nature, they may also constitute “regulations.”  Thus, the exemptions still applied to the city’s action.

Unusual Circumstances Exception

The Coalition also argued that the 2012 ordinance fell within the “unusual circumstances” exception to the categorical exemptions. The unusual circumstances exception states that a categorical exemption may not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances. (CEQA Guidelines, § 15300.2(c).) “Unusual circumstances” are features of a project that distinguish it from other projects in the exempt class.

There is currently a split of authority over the proper standard of review for determining whether an otherwise exempt project falls within the exception. The court assumed for the sake of argument, without deciding, that the “fair argument” rather than “substantial evidence” standard applied. The Coalition argued that the ordinance was an unusual circumstance because it would increase the use of single-use paper and compostable bags without decreasing the use of other reusable bags, since the large number of tourists and commuters in the city would not bring their own bags or would underuse them before throwing them away. The court found no fair argument supporting this theory.

The court agreed with Manhattan Beach that studies on paper versus plastic bag life cycles, which suggested compostable and underused reusable bags were worse for the environment than single-use plastic bags, did not create a fair argument that the ordinance would negatively impact the environment; the court was not convinced global impact studies were a fair or accurate mechanism for measuring the impacts of a local ordinance. Even if the life cycle studies were arguably relevant in evaluating a plastic bag ban, the 2012 ordinance was not a flat-out plastic bag ban, but rather, a checkout bag ordinance that regulated all bags, not just single-use plastic bags.

2. Retail Food Code

Finally, the Coalition argued that the city’s ordinance was preempted by state law. The Retail Food Code stated it was the intent of the Legislature to occupy the field of health and sanitation standards relating to retail food facilities. The ordinance, however, did not establish health or sanitation standards for retail food establishments. The court concluded that the code did not regulate the field of retail food to the extent it precluded this ordinance, noting that “a field, even an entire field, has some ending point.” The fact that certain provisions of the code also addressed carryout bags did not alter the conclusion, since preemption doctrine does not preclude a city from exercising its police power on a subject simply because the Legislature has enacted a law on the same subject.

Requests for publication are expected to be filed.

Canada will link its cap-and-trade program with California’s in 2014

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The Air Resources Board (ARB) has announced that California and the Quebec province are scheduled to link their cap-and-trade programs on January 1, 2014.

Quebec recently held its first auction for cap-and-trade allowances. ARB Chairman Mary Nichols praised the Canadian province for its hard work developing a cap-and-trade program and bringing about the successful auction. She stated that linking the regions’ programs will “show our respective nations, and the world, how states and provinces can work together to reduce greenhouse gases and fight climate change.”

A joint auction is expected later in 2014.

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