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Supreme Court Grants Review in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority

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This spring, we blogged on the opinion of the Second Appellate District Court of Appeal in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552, which upheld the use of a future baseline for the purposes of evaluating environmental impacts in appropriate cases.  On August 8, the California Supreme Court has granted review, rendering the court of appeal opinion uncitable and inciting speculation in the environmental law community that the Court might finally provide guidance on the baseline question. (CA Supreme Court Case No. S202828)

In that case, Petitioner Neighbors for Smart Rail argued that Exposition Metro’s use of a future baseline was improper for reviewing significant environmental impacts under CEQA, which requires an “existing conditions baseline.” The lower appellate court found that the CEQA Guidelines provide some flexibility to agencies in selecting an appropriate baseline, and that Exposition Metro’s incorporation of future population growth into its baseline was both realistic and proper. Exposition Metro was therefore not prevented, as a matter of law, from using its future baseline in evaluating environmental effects.

This holding seems to be in conflict with Fifth and Sixth District Court of Appeals in their opinions Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48.

 

Ninth Circuit Court of Appeals holds U.S Bureau of Reclamation renewal of water service contracts not discretionary and therefore not subject to Section 7(a)(2) of the Endangered Species Act

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On July 17, 2012, the Ninth Circuit Court of Appeals released its decision in Natural Resources Defense Council v. Salazar, 2012 U.S. App. Lexis 14614 (Case No. 09-17661) affirming Judge Oliver Wanger’s decision in the Eastern District of California, finding that the United States Bureau of Reclamation did not violate section 7(a)(2) of the federal Endangered Species Act by renewing 41 water supply contracts. In this case, plaintiffs argued the Bureau unlawfully renewed the water service contracts without conducting adequate consultation under Section 7(a)(2) of the ESA, and that the contract renewals jeopardized the existence of the Delta smelt.

Background and Procedure

The Bureau operates the Central Valley Project, which is a network of dams, reservoirs, and pumping facilities for regulating and distributing water from the Sacramento and San Joaquin River watersheds. California’s State Water Project operates within the same watershed, and is an analogue to the CVP.

The Bureau and the SWP have coordinated management of the CVP since the 1930’s when the Bureau assumed control of the CVP because California could not finance the project. To operate the CVP, the Bureau was required to obtain water rights under state law, but a dispute arose regarding the priority of pre-project water rights. The California Water Rights Board held hearings on the matter and issued a decision allowing the Bureau to manage CVP water if it first addressed the issue of senior water rights holders. In response to that decision, the Bureau entered into 142 settlement contracts, each for 40-year terms with some parties asserting senior water rights from 1964. The contracts guaranteed so-called “Settlement Contractors” a certain amount of base water, which could only be reduced by 25% in very dry years. The Bureau also entered into long-term contracts with a coalition of water service contractors who obtained water from the Delta-Mendota Canal (DMC Contractors).

In 2003, the Bureau prepared a biological assessment under the ESA regarding effects on the Delta smelt from the renewal of the contracts, and requested consultation with the Fish and Wildlife Service. In 2004, the Service issued concurrence letters, which concluded the contract renewals were not likely to adversely affect any listed species or their critical habitat. Following the decision in Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) (invalidating the regulatory definition of “destruction or adverse modification”), the Bureau reinitiated consultation with the Service.  In 2005, FWS reissued concurrence letters reaching the same conclusion.  The concurrence letters incorporated by reference sections of the biological opinion for the Long-Term CVP and State Water Project Operations Criteria and Plan (known as “OCAP”).  Following completion of the Service’s ESA consultation, the Bureau renewed contracts with both the Settlement Contractors and the DMC Contractors.

In 2005, plaintiffs filed suit challenging the 2005 OCAP biological opinion.  The lawsuit also included claims that the Bureau violated its legal obligations under Section 7(a)(2) of the ESA by renewing the DMC and Settlement Contracts. After reviewing the 2005 biological opinion, a district court held it was  unlawful for failing to adequately consider impacts to the Delta smelt’s critical habitat, failing to rely on the best available scientific information, and for not including mandatory mitigation measures to protect the Delta smelt. The district court remanded the 2005 OCAP biological opinion without vacatur, ordered the Bureau and the Service to re-consult, and imposed interim measures that automatically expired on the issuance of a new biological opinion.

The Service filed a new biological opinion in 2008 that concluded the CVP and SWP operations were likely to threaten the Delta smelt and identified “reasonable and prudent alternatives” to avoid jeopardy.  Following the issuance of the 2008 biological opinion, plaintiffs filed another complaint alleging that the Bureau had violated Section 7(a)(2) of the ESA by renewing the DMC and Settlement Contracts. Each side moved for summary judgment, and the district court granted summary judgment for the defendants. The District court found that plaintiffs lacked standing to challenge the DMC contracts, and that the Settlement Contracts were not subject to Section 7(a)(2).

The Ninth Circuit’s Opinion

The Ninth Circuit first rejected defendants’ argument that the issuance of the 2008 biological opinion by the Service rendered plaintiffs’ claims moot.  The court explained the claims were not moot because, unlike its prior cases where a new biological opinion clearly replaced the old opinion, in this case there was ongoing litigation regarding the validity of the 2008 opinion and a district court decision in a separate matter holding that parts of that 2008 opinion violated the ESA.   The Ninth Circuit also held the claims were not moot because it was unclear if the contracts at issue were considered in the 2008 opinion.

The Ninth Circuit then addressed plaintiffs’ standing to challenge the DMC contracts. The court determined plaintiffs failed to establish a causal connection between the threatened injury and the Bureau’s action because the DMC contracts included a shortage provision which expressly allowed the Bureau to take action to meet its legal obligations. These actions could include not delivering water to DMC Contractors if necessary in order to comply with the ESA. Therefore, the threatened injury, jeopardy to Delta smelt, would not be traceable to the contract renewals because the contracts expressly allowed for compliance with Section 7(a)(2). Based on this reasoning, the Ninth Circuit concluded the lower court properly determined the plaintiffs lacked standing to challenge the DMC contracts.

After addressing the DMC Contracts, the Ninth Circuit considered the applicability of Section 7(a)(2) to the Settlement Contracts. With respect to the Settlement Contracts, the Ninth Circuit ruled there was no “discretionary action” triggering the duty to consult under section 7(a)(2) of the ESA.  Citing the Supreme Court’s decision in Nat’l Ass’n. of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 666 (2007), the Court explained that “Section 7(a)(2) of the ESA only applies to federal agency action ‘in which there is discretionary Federal involvement or control.’”  The Ninth Circuit, therefore, held the lower court properly determined that the Bureau’s renewal of the Settlement Contracts was not subject to Section 7(a)(2) because the action was not discretionary.

The court explained that under the Reclamation Act of 1902, the Bureau must operate the CVP in conformity with California water law, including full recognition of any vested right acquired under California law. Under the state law, senior appropriative water rights must be satisfied before junior water rights. Under the Settlement Contracts, the Bureau is required to deliver base supply water that may only be reduced in critically dry years. This duty to deliver is mandatory, and under the Central Valley Project Improvement Act, the Bureau is required to renew these contracts upon request. Due to this requirement, the Bureau’s discretion was limited with regard to the Settlement Contracts such that Section 7(a)(2) of the ESA was not triggered. Based on this reasoning and lack of standing, the Ninth Circuit upheld the district court’s grant of summary judgment in favor of the defendants. (By John Wheat)

California Natural Resources Agency moves forward with regulations for streamlined environmental review for qualified infill projects.

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On July 27th, the California Natural Resources Agency took the next step toward rulemaking for streamlined environmental review for qualified infill projects. The action proposed is to add a new section 15183.3 to the CEQA Guidelines, as well as a new Appendix M and N to the Guidelines, pursuant to SB 226 (which added Pub. Resources Code section 21094.5.5, directing the Resources Agency’s rulemaking). The written comment period will remain open until 5:00 p.m. on September 10, 2012. Two public hearings have been scheduled, the first on September 7, 2012 in Los Angeles, and the second on September 10, 2012 in Sacramento.

While existing law already permits streamlined CEQA review for qualified infill projects under SB 226, the Natural Resources Agency’s proposed guidelines would establish a process for documenting and applying SB 226’s streamlining provisions. The proposed rules also clarify the type of specific environmental review required, which may include a checklist approach, more information about the evidence standard for lead agencies, an explanation of the threshold amount of allowable environmental impact, further guidance on which additional policy documents may be used in the streamlined process, and a discussion of mitigation measures.

The proposal also details the performance standards needed for streamlining eligibility as required by SB 226 to ensure that infill development advances state policies with respect to GHG emissions, public health, and water and resource management. Overall, SB 226 and the implementing Guideline section are intended to promote infill development over greenfield development, and to make environmental review less burdensome for qualifying projects. (By Holly W. Roberson)

More information can be found at: http://ceres.ca.gov/ceqa/docs/SB226_Guideline_Updates_Notice.pdf.

 

Governor Jerry Brown formally announces revisions to proposed framework for the Bay Delta Conservation Plan

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On July 25, 2012, California Governor Jerry Brown along with the Department of the Interior and NOAA announced revisions to the proposed framework for the Bay Delta Conservation Plan (BDCP). This new preferred alternative proposal, along with a range of alternative proposals, will be subject to a full public environmental review.  In making their announcements today, state and federal officials emphasized that the current state of the California water system is unsustainable from both an environmental and an economic perspective. The BDCP will play an important role in helping California achieve its co-equal goals of a reliable water supply and a healthy Bay Delta ecosystem.

A major aspect of the plan proposes construction of a pair of a water conveyance facilities designed to move water under the Delta from the north to the federal and state pumps at Tracy in the south. This facility as proposed could play an important role in the restoration of California’s Sacramento-San Joaquin River Delta. The revised preferred alternative includes water intake facilities with a total capacity of 9,000 cubic feet per second. The previous proposal’s water intake facilities operated at an intake capacity of 15,000 cubic feet per second.

The conveyance facility has been proposed, in part, to address the aging system of levees in the Delta that are at risk of collapse in an earthquake. If enough levees failed in a significant seismic event, salt water from the ocean could intrude up the Delta as far as the Tracy pumps. This scenario would make the pumps unusable and disrupt California’s water supply. Among numerous other components, the BDCP framework also calls for restoring approximately 113,000 acres of wetlands, floodplains and other habitat within and surrounding the Delta.

Parties working on the BDCP expect to issue a draft plan and corresponding EIS/EIR for public review this fall. Leading up to this release, state and federal agencies will work closely with public water agencies and other interested parties. Based on this input, state and federal agencies will continue to refine the revised proposals. After completion of this preliminary work the BDCP will release an updated progress report.

The official press release for the July 25, 2012 announcement can be found here: http://baydeltaconservationplan.com/Libraries/Dynamic_Document_Library/Joint_Announcement_Press_Release-7-25-12.sflb.ashx

(By John Wheat)

 

Ninth Circuit Court of Appeal Rules Federal Government can Extinguish California Public Trust when Exercising its Eminent Domain Powers.

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On June 14, 2012, the Ninth Circuit Court of Appeals issued its decision in United States v. 32.42 Acres of Land. In this case, the California State Lands Commission appealed from a district court’s final judgment in an eminent domain case where the United States took a fee simple interest in 32.42 acres of land on behalf of the U.S. Navy.

In 1911, the state legislature granted the property at issue to the City of San Diego, which leased the property to the Navy for 50 years, with the right to renew the lease for an additional 50 years. This land was later transferred to the San Diego Port District. When the Navy sought to exercise its exclusive option to renew the lease in 1996, the Port and Commission opposed the extension, and the United States brought a condemnation action. This action was settled and the lease was granted, but in 2005, the Navy determined it wanted to own the property in fee simple. The United States again filed a condemnation action. The Commission filed a motion for summary judgment, contending that the federal government could not extinguish California’s public trust rights. The trial court denied the motion, and the Commission appealed.

On appeal, the parties agreed that the federal government may take the property, and that it could put it to any use, including non-trust uses. The parties disagreed over the result of potential transfer of ownership of the property to a private party in the future. The Commission argued that the declaration of taking should not extinguish California’s public trust, but instead should only make it “quiescent” so that the public trust has no effect while the United States owns the property, but remerges if the land is later sold to a private party. The court rejected all of the Commission’s arguments in support of this position.

First, the Commission contended that the equal-footing doctrine required the federal government to offer a compelling reason for granting away submerged lands. Under the equal-footing doctrine, when a new state is admitted into the Union, it gains the same rights, sovereignty and jurisdiction as the original States; therefore, the doctrine provides a state presumptive title to its submerged lands when it joins the Union. The Commission argued that a compelling reason was required prior to granting these lands away because courts “did not ‘lightly infer’” such a grant when the United States held title to submerged land prior to statehood. As a result, the Commission asserted the federal government should not be able to grant away a state’s submerged land without being held to the same standard for granting away a territory’s submerged land. The court responded that the Commission misinterpreted the equal-footing doctrine. Under the equal footing doctrine, courts begin with a strong presumption against defeat of a state’s title. This presumption can be overcome, as the Constitution’s Property Clause gives the federal government the power to divest a future state of its entire title in submerged lands so long as the federal government makes its intention to do so plain, and the conveyance is for a public purpose.

Second, the Commission argued that the equal-footing doctrine prevented the federal government from extinguishing California’s public trust rights by eminent domain because “nothing but the Constitution can take away from the states what they received under the equal footing doctrine.” The court noted the Commission relied on cases to support this argument that were inapplicable. The court clarified that while the equal-footing doctrine prevents the federal government from granting property held by a state to a third party, it does not prevent the federal government from gaining new property through its eminent domain power.

Third, the Commission argued the law of federal navigational servitude supported its argument that the federal government could not extinguish state public trust rights because the law of navigational servitude defines “the extent to which the states have surrendered their public trust rights by the Constitution.” The court again pointed out that the Commission failed to distinguish between what the federal government may do with land when it does or does not have title to that land. The court held that the scope of the federal navigational servitude does not limit the United States’ power of eminent domain.

Fourth, the Commission invoked the seminal Illinois Central Railroad case to argue that the public trust doctrine restricts the ability of both federal and state governments to alienate public trust lands free of the public trust. The court rejected this argument, pointing out that the public trust doctrine remains a matter of state law. If California’s public trust interest in the property were to survive the federal government’s attempt to condemn it, it would improperly subjugate the federal government’s eminent domain power to state law. This would violate the Constitution’s Supremacy Clause.

Finally, the Commission unsuccessfully argued that the United States’ taking of the property subject to a “quiescent trust” would serve the Navy’s purpose equally well, so preserving California’s public trust would not frustrate the United States’ power of eminent domain. The court stated that the United States sought to extinguish the state’s public trust, and therefore, whether it could accomplish its objective by taking a lesser interest in the property is irrelevant. The Navy determined it wanted the property in fee simple and unencumbered by California’s public trust. The court noted it did not have the jurisdiction to review the wisdom of that determination. (By John Wheat)

 

 

California’s Clean Tech Industry Grows in Partnership with the U.S. Navy.

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Yesterday the Governor’s Office of Planning and Research, Senate leadership and the California Energy Commission gathered together with journalists and over 100 people on the Capitol steps for a clean tech exposition to celebrate the growth of California’s clean tech industry through partnership with the U.S. Navy.

For years California’s legislature and the CEC have worked to provide funding for research and development of new fuel sources through AB 118 funds and federal funding. The expo featured the success stories of companies that received seed funding and have now developed commercially viable large scale biofuel and alternative energy products. Together these companies have hundreds of patents and provide thousands of jobs here in California. “Our partnership with the US Navy and innovative California companies represents how the State’s energy policies are being adapted to develop alternative fuels, foster clean energy resources, and improve energy reliability,” said California Energy Commission Chair Bob Weisenmiller.

The Navy has set aggressive goals to reduce energy consumption and increase the use of alternative energy and fuels. By 2020 the Navy in California will use 50 percent less energy overall and half of its installations will achieve “net zero” greenhouse gas emissions through the use of energy conservation and renewable energy sources. The Secretary of the Navy has affirmed that energy security increases national security and saves taxpayers money. Providing local energy sources keeps troops on mission and reduces their exposure while protecting supply lines. The Navy can save money on its fuel budget through energy efficiency measures and by using new, cost effective biofuels. According to the U.S. Department of Defense, every $10 increase in the price of a barrel of oil equals an additional $1.3 billion to its annual energy bill.

To help meet these goals the Navy has partnered with California and utilized the products of local companies like Solazyme, BioDeco, Borego Solar, and Sun Power to fuel its jets and power its bases.

The expo was part of Sacramento Navy Week, and included a presentation of a Senate Resolution to recognize the Navy for its contributions to California. (By Holly W. Roberson)

Second District Court of Appeal Confirms Public Entity Litigant’s Non-pecuniary Interests Irrelevant in Evaluating Award of Attorneys’ Fees under California Code of Civil Procedure Section 1021.5

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On July 18, 2012, the Second District Court of Appeal certified its ruling for partial publication in City of Maywood v. Los Angeles Unified School District (2012) __Cal.App.4th__ (Case No. B233739). In this case, the City of Maywood sought to overturn the Los Angeles Unified School District’s (LAUSD) certification of an FEIR analyzing the environmental consequences of constructing a high school. The trial court rejected most of the city’s claims, but found the FEIR deficient in four ways, including inadequate analysis of pedestrian safety. The trial court entered a peremptory writ and awarded attorneys’ fees to Maywood. The LAUSD appealed. The appellate court rejected most claims against the FEIR, but agreed, in an unpublished section, that further analysis of pedestrian safety impacts was required. In the only published section of its decision, the Second District clarified the proper test for determining whether the prevailing party was entitled to attorneys’ fees.

The trial court awarded Maywood approximately $670,000 in attorney’s fees pursuant to Code of Civil Procedure § 1021.5. On appeal, LAUSD argued that Maywood could not recover fees because the “primary purpose” of the lawsuit was to benefit Maywood “whether for financial or other reasons.” To obtain attorneys’ fees under § 1021.5, the party seeking the fees must show that the litigation (1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) was necessary and imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter. Each of these elements must be satisfied for an award to issue.

The appellate court relied on the California Supreme Court’s decision in Conservatorship of Whitley (2010) 50 Cal.4th 1214 to clarify the method for evaluating the necessity and financial burden element of § 1021.5. The Supreme Court determined “the necessity and financial burden of private enforcement” requirement is actually comprised of two distinct elements: a necessity prong and a financial burden prong. The court held “a strong nonfinancial motivation does not change or alleviate the ‘financial burden’ that a litigant bears. Only offsetting pecuniary gains can do that.” Further, the Supreme Court noted that the legislative history for §1021.5 did not focus on the litigants’ initial subjective motivation, but rather, was intended to alleviate the financial burdens associated with public interest litigation. Lastly, the Supreme Court explained that determining whether a particular non-pecuniary interest was sufficient to preclude recovery of attorneys’ fees would require speculative inquiry lacking in objective criteria.

While the holding in Whitley focused on private enforcement actions, the Second District Court of Appeal determined that all of the factors the Supreme Court discussed in Whitley apply equally to public entity litigants. The legislative history for § 1021.5 indicated that the Legislature intended the same requirements to apply to private and public litigants. The appellate court also rejected a substantial portion of LAUSD’s argument for relying on cases preceding Whitley. Whitley has made it clear that a litigant’s non-pecuniary interests are not relevant in evaluating § 1021.5’s financial burden criterion.

The appellate court indicated that, due to reversing significant portions of the trial court’s order, it also had to reverse the order granting attorneys’ fees because any grant or denial of attorneys’ fees under § 1021.5 must follow remand and be based on the results obtained in the new judgment. The trial court was directed to reassess whether fees were appropriate after the outcome of the appeal, and if so, the appropriate amount of any such fees, applying the standards in Whitley. (By John Wheat)

Full steam ahead for High-Speed Rail in California

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Today the California State Senate approved the issuance of $2.6 billion in state bonds to fund the development and construction of a high-speed rail system, which will allow the State to receive $3.2 billion dollars in matching funds from the federal government for the project. The Assembly passed the plan on Thursday.

The first segment of construction will be in the Central Valley, between Merced and Fresno, where the funding can begin to provide badly needed jobs, support for long-range smart growth and land use planning around the high-speed rail station hubs. Ultimately, high-speed rail will create significant reductions in greenhouse gas emissions and other air pollutants as rail transit will provide an efficient alternative to automobile travel between the major metropolitan areas of California.

Three CEQA lawsuits are pending in Sacramento County Superior Court challenging the adequacy of the EIR prepared for the Merced to Fresno section of the high-speed rail project. A ruling on the merits of the petitions is anticipated in early 2013, before the expected start of construction in the spring of 2013.

Second District Court of Appeal Upholds South Coast Air Quality Management District’s Rule Limiting Volatile Organic Compounds in Paint Thinners and Solvents against Challenge that the Rule Is Preempted; Rejects Claim that CEQA Required District to Analyze Alternatives to the Rule

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On June 28, 2012, in W.M. Barr & Company Inc. v. South Coast Air Quality Management District ___Cal.App.4th___ (Case No. B233892), the Second District Court of Appeal upheld the South Coast Air Quality Management District’s Rule 1143, which requires manufacturers of consumer paint thinner and solvent products to limit the use of Volatile Organic Compounds (VOCs) in their products in order to meet the District’s obligations under the federal Clean Air Act and the California Clean Air Act.

In July 2010, the District adopted Rule 1143. The District believed that Rule 1143 would cause manufacturers to replace the VOCs with acetone, a highly flammable solvent. The District therefore prepared an environmental assessment under CEQA evaluating the fire hazard risks of substituting acetone and proposing specific product labeling to alert consumers.
W.M. Barr & Company, Inc. (Barr), a manufacturer of paint thinners and solvents, challenged Rule 1143 on the grounds that (1) Rule 1143 was preempted by the Federal Hazardous Substance Act (FHSA); (2) Rule 1143 was preempted by regulations simultaneously adopted by the California State Air Resources Control Board (the Board); and (3) the District did not comply with CEQA because it failed to consider alternatives to the measures it adopted. The trial court rejected each of these claims and the Court of Appeal affirmed.

First, the Court of Appeal found that Rule 1143 was not federally preempted. Barr argued that the FHSA preempts Rule 1143 because Rule 1143 requires products to include a “hang-tag” stating that the product has been formulated to meet low VOC standard and to have warnings on the label. According to Barr, the hang-tag requirement addresses the same fire risks as the FHSA, which includes requirements for fire warning labels, and therefore the FHSA preempts the rule’s hang-tag requirement. The Court of Appeal rejected this argument for two reasons. First, the language of the FHSA, which covers “directions for use,” does not expressly preempt the hang-tag because Rule 1143’s hang-tag requirement only requires the hang-tag to instruct users to see the product’s warning label, rather than containing specific directions for use under federal labeling requirements. Second, while Rule 1143 ostensibly addresses “increased fire hazards,” the hang-tag does not directly address fire hazards. Instead, the primary (and narrower) risk the hang-tag addresses is the risk the user will not be familiar with the hazards of the product because it has been reformulated to comply with Rule 1143. The broader question of fire risk is secondary to Rule 1143, and remains governed by the FHSA. Therefore, the court concluded, the FHSA did not preempt Rule 1143’s hang-tag requirement.

Next, the court considered whether state law preempts Rule 1143 and concluded it does not. Barr argued that under California Health and Safety Code section 41712, subdivision (f), Rule 1143 is preempted by the Board’s general purpose regulation of cleaning products, which bars the District from adopting a regulation for a consumer product for which the Board has already adopted a regulation. Barr asserted that because the Board had adopted a regulation for general purpose cleaners, Rule 1143 conflicted with this regulation and was therefore preempted. The court disagreed, explaining that Health and Safety Code section 41712, subdivision (f) states: “[a] district shall adopt no regulation pertaining to disinfectants, nor any regulation pertaining to a consumer project that is different than any regulation adopted by the state board for that purpose.” The court found that the phrase “any regulation already adopted by the state board for that purpose” implicitly refers to regulations already adopted by the Board. This language is clear: if the Board has not yet adopted a regulation in the area, an air management district would not, by definition, be able to adopt a regulation that was different. Here, the Board’s regulations governing paint thinners and multi-purpose solvents were enacted after Rule 1143, not before. Therefore, the court held that Rule 1143 was not preempted by state law.

Finally, the court considered Barr’s CEQA claim. Under CEQA, the District’s adoption, amendment or repeal of a District rule is a certified regulatory program. Certified regulatory programs are considered functionally equivalent to the preparation of an EIR or negative declaration and therefore, in lieu of an EIR or negative declaration, agencies may prepare a substitute environmental review document. In the case of the District, the substitute document is what the District terms an “environmental assessment.” Barr argued the District’s environmental assessment for Rule 1143, which functioned as a mitigated negative declaration, violated CEQA because it failed to consider feasible alternatives. The court rejected this argument because, as a functional equivalent to a mitigated negative declaration, the environmental assessment was not required to analyze feasible project alternatives. Substantial evidence supported the District’s conclusion that Rule 1143 would not cause any significant environmental impacts. Therefore, the District was not required to analyze or make findings regarding alternatives to Rule 1143. (by Laura Harris)

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