Blog

First District Finds EIR for California State University East Bay Campus Inadequate with Respect to Analysis of Impacts to Parkland

General Posted by   

City of Hayward v. Board of Trustees of the California State University (1st Dist. June 28, 2012) __Cal.App.4th__ (Case Nos. A13412, A132424, A131413, A132423) 

October 17, 2012, Petition for Review granted; California Supreme Court Case No. S203939

On May 30, 2012, the First Appellate District affirmed a lower court’s grant of a petition for writ of mandate challenging the expansion of the California State University (CSU) East Bay campus and the certification of an EIR for the project under CEQA. The trial court had agreed with plaintiffs City of Hayward and two local community groups, Hayward Area Planning Association and Old Highlands Homeowners Association, that the EIR prepared by the Board of Trustees of the California State University (the Trustees) failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands. The First District, however, disagreed with the trial court and found the EIR to be adequate in all respects except it determined the EIR’s analysis of potential environmental impacts to parkland was not supported by substantial evidence. The court, therefore, directed that the scope of the writ of mandate be modified.

The case involves a challenge to the Trustees’ 2009 approval of a master plan to guide the development of the California State University East Bay (the University) for the next 20 to 30 years in order to expand the campus’s physical capacity to meet its assigned enrollment ceiling.  In March 2009, a final EIR was issued which concluded that the buildout under the master plan will result in significant impacts in four categories despite the implementation of all feasible mitigation measures: (1) aesthetics, (2) air quality, (3) cultural resources, and (4) traffic. All other impacts, including impacts on public services, were found to be insignificant or fully mitigated.

In October 2009, the city and local community groups filed separate petitions for writ of mandate challenging the certification of the EIR and approval of the master plan. The cases were coordinated for briefing and hearing. On October 28, 2010, the court issued an order granting petition for writ of mandate. On December 21, 2010, separate judgments were entered in the two cases. The trial court held that the EIR failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands. The Trustees appealed and the cases were consolidated on appeal for briefing and decision.

Fire and Emergency Medical Services

On appeal, the court disagreed with the trial court’s finding that the EIR’s analysis of the master plan’s impacts to fire and emergency medical services was inadequate. The EIR had found that the master plan would result in the need for 11 additional firefighters and additional fire station facilities to house the staff required to serve the increased population associated with the master plan. The EIR concluded, however, that expansion or construction of a fire station would not result in significant environmental impacts due to the limited area that is typically required to build a fire station (between 0.5 and 1 acre) and its urban location. The appellate court found that the record supported this conclusion in the EIR. The court concluded that the determination that the potential impacts of the fire station would be less than significant was based on the information available (i.e., the known size requirements and the general area within which the additional facilities would necessarily be placed) which constituted substantial evidence. The court noted that, given the unknown size and precise location of the future facilities and the absence of control by the Trustees of over the future decision-making process (because emergency services are provided by the City’s Hayward Fire Department), no more detailed analysis of the potential impacts of the potential fire station was possible or required.

The court also found that no mitigation was necessary to address the need for additional fire protection services due to the potential increase in response time caused by the increase in population under the master plan. The court noted that, under the California Constitution, the obligation to provide adequate fire and emergency medical services fell to the city. Furthermore, the court, citing CEQA Guidelines § 15382 and Goleta Union School District v. Regents of University of California (1995) 37 Cal.App.4th 1025, held that the need for additional fire protection service is not an environmental impact that CEQA requires a project to mitigate.

The court rejected the respondents’ argument that under City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, the Trustees were required to pay for an additional fire station and the salaries of additional fire fighters. In City of Marina, mitigation to fund improvements to fire protection services was required because the EIR concluded the project would result in significant environmental impacts. In contrast, the court noted, the master plan EIR determined, based on substantial evidence, that implementation of the master plan would not result in a significant impact.  

The court also rejected the respondents’ reliance on Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, to argue that delayed response times must be evaluated as a “health and safety problem” under section 15126.2 of the Guidelines. In Bakersfield Citizens, the court found that the EIR for a shopping center was inadequate because it failed to correlate identified significant and unavoidable air quality impacts to resultant adverse health effects, and, therefore, the public was not apprised of the health consequences that result when more pollutants are added to a nonattainment basin. The court noted that in the University EIR, a concerned citizen reading the EIR would understand the impacts of the proposed increase in population on emergency services in the area. The EIR analyzed the response times and their impact on public safety, concluded that the project will cause response times to fall to an inadequate service level, found that additional fire fighters will be required to maintain adequate service levels, set forth the measures needed to provide adequate emergency services, and concluded that those measures will not have a significant impact on the environment.

Furthermore, the court found that the potential dangers associated with delayed response times do not mandate a finding of significance under CEQA Guidelines § 15065(a)(4). Based on the analysis in the EIR, and because the city has a constitutional obligation to provide adequate fire protection services, there was no basis to conclude that the increased population would cause a “substantial adverse effect on human beings.”

Finally, the court found no deficiency in the EIR’s analysis of cumulative impacts on public services. The EIR based its analysis of cumulative impacts on the evaluation of cumulative impacts made in connection with the adoption of the city’s general plan, which found no cumulative impact from city growth on fire services. Accordingly, the EIR reasonably concluded that any cumulative impact of the growth will be less than significant.

Traffic Impacts

The plaintiffs also objected to the analysis of one potential location for future construction of affordable faculty housing, arguing that the EIR should have evaluated potential impacts to additional roads in the immediate neighborhood. The court found, however, that the analysis of traffic and parking impacts of potential sites for faculty housing was sufficient because no site had yet been selected. As a program EIR, therefore, the master plan EIR appropriately evaluated the potential cumulative impacts of locating faculty housing near Grandview Avenue on the primary intersections in that area. Any site-specific impacts to the smaller residential streets in the neighborhood and related mitigation measures, however, were properly deferred until the affordable faculty housing project is planned and a project EIR is prepared.

Furthermore, the court found the reliance on a Transportation Demand Management (TDM) program to mitigate significant impacts caused by increased parking and traffic did not constitute impermissible deferred mitigation. The court noted that the TDM sets forth specific alternative policies that may be utilized to mitigate traffic growth, incorporates quantitative criteria, and sets specific deadlines for completion of the parking and traffic study timelines for reporting to the city on the implementation and effectiveness of the measures that will be studied. The plan also included a monitoring program which ensures that the public will have access to the information necessary to evaluate compliance with the Trustees’ obligations.

Parklands Impacts

In assessing the potential impact on area parklands, the EIR concluded that the impact on the East Bay Regional Park District would be insignificant because the master plan included ample on-campus recreation offerings and, therefore, use of off-campus recreational resource by the additional student population would be nominal because the on-campus facilities would adequately support the campus population. The court agreed with the trial court that this analysis was inadequate.

First, because the EIR focused on the entire regional park district, it failed to perform a project-level analysis of impacts to specific parks. In particular, it failed consider the specific impacts on two neighboring parks, Garin Regional Park and Dry Creek Pioneer Regional Park. The Trustees argued that the EIR’s analysis was sufficient because it was reasonable to conclude that the new student population would make the same “nominal” use of these parks “consistent with long-standing use patterns” and that the master plan included ample on-campus recreation offerings. The court disagreed, noting that the EIR failed to provide factual evidence to support this assumption. There were currently 12,586 full-time-equivalent students enrolled at the university. The EIR disclosed no attempt to determine the extent to which these students made use of the adjacent parklands or to extrapolate from such data estimated increased usage by the additional approximately 5,500 anticipated full-time equivalent students. Nor was any such calculation made for the existing approximately 1,200 residential students and the 600 students anticipated to live in the new student housing project. Moreover, the record contained no evidence regarding overall usage or capacity of the neighboring parks. As the trial court noted, evaluating the potential impact on the entire East Bay Regional Park District cast too broad a net and did nothing to expose potential impacts on the neighboring parks.

Furthermore, the fact that there were ample on-campus recreation opportunities did not support the finding that additional use of the nearby regional parks would be “nominal.” The types of recreational opportunities offered on campus and in the neighboring parks were significantly different. The athletic fields, recreation center, swimming pool and grassy fields found on campus were not comparable to the recreational opportunities available in the 4,763 acres of neighboring parkland. Without any data concerning the extent to which the current-size student body (or anybody else) utilized the adjacent parks, the court concluded it was not reasonable to assume that the “informal trails” available on a 130-acre open space reserve on campus would keep significant numbers of new students from making use of the neighboring parklands.

The court accordingly reversed the trial court’s judgment except to the extent it required the Trustees, before considering certification of a revised EIR, to revise their analysis of the impacts of the master plan and related site-specific projects to area parklands.

D.C. Circuit Court of Appeals upholds EPA’s Greenhouse Gas Regulations

General Posted by   

On June 26, 2012, in Coalition for Responsible Regulation, Inc., et al., v. Environmental Protection Agency, No. 09-1322 (D.C. Cir. June 26, 2012), the D.C. Circuit Court of Appeals upheld the Environmental Protection Agency’s Endangerment Finding and Tailpipe Rule regarding greenhouse gases. The court also upheld the agency’s interpretation of the Clean Air Act (CAA) requiring major stationary sources of greenhouses gases to obtain construction and operating permits. Opponents of these rules disputed the Endangerment Findings and EPA’s authority to regulate GHG emissions under the CAA based upon the finding.

Background and Procedure

The EPA promulgated the disputed rules following the Supreme Court’s holding in Massachusetts v. EPA that GHGs may be regulated as an air pollutant under the CAA. In response to this holding, the EPA first issued its Endangerment Finding for GHGs. The Finding was based “on a considerable body of scientific evidence,” and EPA concluded that emissions of specified GHGs “contribute to the total greenhouse gas air pollution, and thus to the climate change problem, which is reasonably anticipated to endanger public health and welfare.” Based on this finding, the EPA was required under the CAA to establish motor-vehicle emission standards for GHGs. The ensuing Tailpipe Rule set GHG emission standards for cars and light trucks as part of a joint rule-making with fuel economy standards issued by the National Highway Traffic Safety Administration.

Due to EPA’s standing interpretation of the CAA, the Tailpipe Rule automatically triggered regulation of stationary GHG emitters under the Prevention of Significant Deterioration of Air Quality (PSD) program and Title V. The PSD program requires state-issued construction permits for stationary sources producing either 100 tons per year (tpy) or 250 tpy of any air pollutant. Title V requires state-issued operating permits for stationary sources that have the potential to emit at least 100 tpy of any air pollutant. EPA then issued two rules phasing in stationary source GHG regulation. First, in the Timing Rule, EPA concluded that an air pollutant becomes subject to regulation under the CAA (and therefore to PSD and Title V) only once a regulation requiring control of that pollutant takes effect. Therefore, EPA determined major stationary emitters of GHGs would be subject to PSD and Title V permitting requirements on the date the Tailpipe Rule became effective—or the date when GHGs first became regulated under the CAA. Following the Timing Rule, EPA promulgated the Tailoring Rule, providing that only the largest sources of GHG emissions, those exceeding 75,000 or 100,000 tpy CO2e, would initially be subject to the GHG permitting. This rule was adopted after the EPA determined requiring permitting for all sources would be overwhelmingly burdensome for both permitting authorities and stationary sources.

A number of states and regulated industries filed petitions for review of these new GHG regulations, arguing the EPA misinterpreted the CAA or otherwise acted arbitrarily and capriciously.

Challenges to the Endangerment Finding.

Petitioners challenged EPA’s Endangerment Finding on numerous substantive and procedural grounds. All challenges were rejected by the court.

  1. EPA’s interpretation of CAA section 202(a)(1).

Petitioners argued that the EPA improperly interpreted CAA § 202(a)(1) as restricting the finding to a science-based judgment without considerations of policy concerns and regulatory consequences. Petitioners believed the EPA was required to consider the benefits of activities emitting GHGs, the effectiveness of emissions regulation, and the potential for societal adaptation to or mitigation of climate change. Petitioners argued that, by not considering these factors, EPA acted arbitrarily and capriciously.

The Court determined the plain language of CAA § 202(a)(1) was contrary to these arguments. The language of the section requires only that the endangerment evaluation relate to whether an air pollutant causes or contributes to air pollution which may reasonably be anticipated to endanger the public health or welfare. The court held that the evaluation process required “scientific judgment”—not policy discussions—about the potential risks of GHGs. The court also held that CAA § 202(a)(1) does not allow the EPA to consider, as part of the endangerment inquiry, the implications or impacts of regulations that might result from a positive endangerment finding.

  1. The Scientific Record

Petitioners also challenged the adequacy of the scientific record underlying the endangerment findings. Petitioners initially challenged the EPA’s reliance on publications issued by the Intergovernmental Panel on Climate Change (IPCC), the U.S. Global Climate Research Program, and the National Research Council.  The court summarily rejected this argument, noting the scientific literature was peer-reviewed and consisted of thousands of individual studies on GHGs and climate change. The court also rejected, as “little more than a semantic trick,” that EPA delegated its authority by relying on these studies. The EPA relied on the reports not as substitutes for its own judgment but as evidence upon which it relied to make its ultimate judgment. The court noted that EPA is not required to re-prove “the existence of the atom every time it approaches a scientific question.”

Finally, in their challenge to the adequacy of the scientific record, Petitioners argued EPA erred in reaching the Endangerment Finding due to scientific uncertainty surrounding climate change. The court responded by noting the “substantial” body of scientific evidence supporting the Endangerment Finding. The court held the existence of some uncertainty does not, without more, warrant invalidation of an endangerment finding. The statute itself is designed to be precautionary in nature and to protect the public health. Further, the Supreme Court itself ruled in Massachusetts v. EPA that the agency may make an endangerment finding despite lingering uncertainty. The court held that the EPA’s decision was supported by substantial evidence and that the agency had relied on the scientific record “in a rational manner.” The court noted that it was not its role to reweigh the evidence before it and reach its own conclusion.

  1. Lack of a quantitative threshold

Petitioners contended that the Endangerment Finding was arbitrary and capricious because the EPA did not define, measure or quantify either the atmospheric concentration at which GHGs endanger the public health or welfare, the rate or type of climate change anticipated to endanger the public welfare, or the risk or impacts of climate change. The court, again relying on the plain language of CAA § 202(a)(1), held that EPA is not required to establish a precise numerical value as part of its endangerment findings. Instead, section 202(a)(1) allows for a qualitative approach that allows the EPA to make case-by-case determinations based on the potential severity of harm in relation to the probability that the harm will occur.

  1. EPA’s definition of “air pollutant”

EPA defined the GHG “air pollution” and “air pollutant” subject to the Endangerment Finding as an aggregate of six GHGs, which the EPA called “well mixed greenhouse gases”: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). Industry Petitioners argued EPA’s decision to include PFCs and SF6 was arbitrary and capricious because motor vehicles do not emit these pollutants. The court responded that no petitioner established standing to make this argument, as no petitioner could demonstrate an injury-in-fact resulting from EPA’s decision to include PFCs and SF6 in the Endangerment Finding.

  1. Failure to submit Endangerment Finding for review by Science Advisory Board

Petitioners claimed that the EPA’s failure to submit the Endangerment Finding to the Science Advisory Board (SAB) violates its mandate to “make available” to the SAB “any proposed criteria document, standard, limitation, or regulation under the Clean Air Act” at the time it provides the same “to any other Federal agency for formal review and comment.” The court noted that it wasn’t clear this obligation was even triggered because it wasn’t clear that the EPA provided the Endangerment Finding to any Federal agency for formal review and comment—it had only been submitted to the Office of Information and Regulatory Affairs pursuant to Executive Order 12,866 for informal review. The court found that even if the EPA violated its mandate by failing to submit the Endangerment Finding to the SAB, Petitioners did not show this error was prejudicial to the rulemaking.

  1. Denial of petitions seeking reconsideration of Endangerment Finding

In the final challenge, Petitioners argued the EPA erred by denying all ten petitions for reconsideration of the finding. Petitioners asserted that internal documents and emails obtained from the University of East Anglia’s Climate Research Unit undermined the scientific evidence upon which the EPA relied. When determining whether to commence reconsideration of a rule, EPA considers an objection to be of “central relevance to the outcome” of that rule “if it provides substantial support for the argument that the regulation should be revised.” Additionally, the party raising the objection must demonstrate that it was impracticable to raise the objection during the public comment period.

The court rejected Petitioners’ assertion, finding that they failed to provide substantial support for their arguments that the Endangerment Findings should have been revised. The assessment had relied on over 18,000 peer-reviewed studies, and two errors identified in IPCC reports were harmless because EPA did not actually rely on such errors to reach the positive Endangerment Finding. Isolated errors identified by Petitioners did not rise to the level of substantial evidence required to support their arguments to overturn the Endangerment Findings.

Challenges to the Tailpipe Rule

Petitioners did not directly challenge the vehicle emission standards set by the Tailpipe Rule, and instead argued the EPA acted arbitrarily and capriciously by failing to consider and justify the costs of its conclusion that the Rule triggers stationary-source regulation under the PSD Program and Title V. The court rejected this argument and held that once EPA made the Endangerment Finding, the language of section 202(a)(1) created a non-discretionary duty that the EPA adopt regulation applicable to vehicle GHG emissions. The court noted this interpretation was supported by the Supreme Court’s decision in Massachusetts v. EPA.

Petitioners also advanced a claim under the Administrative Procedures Act, alleging that EPA failed to show that the proposed standards “would meaningfully mitigate the alleged endangerment.” The court rejected this argument, indicating that petitioner misread earlier D.C. Circuit decisions on EPA air regulations. EPA was under no requirement to establish a particular level of mitigation that the regulation had to achieve. Instead, EPA was only required to show that the Tailpipe Rule would contribute to “meaningful mitigation of greenhouse gas emissions.”

Finally, the court rejected an argument made by Petitioners that EPA should have considered the cost of stationary source permitting that would follow adoption of the Tailoring Rule. The D.C. Circuit had previously held that section 202(a)(2) reference only compliance costs to the motor vehicle industry and does not mandate consideration of costs to other entities not directly subject to the proposed tailpipe emission standards.

Challenges to EPA’s interpretation of PSD Permitting, Timing and Tailoring Rules

Petitioners challenged EPA’s longstanding interpretation of the scope of the permitting requirements for construction and modification of major emitting facilities under the CAA. Since 1978, EPA has defined “major stationary source” as a source that emits major amounts of “any air pollutant regulated under the [CAA].” This interpretation held through EPA’s PSD regulations adopted in 1980 and 2002. “Any pollutant” was interpreted by the EPA to include both criteria pollutants for the National Ambient Air Quality Standards (NAAQS) and non-criteria pollutants. As a result, when EPA determined that GHGs would become a regulated pollutant, emissions of more than 100 or 250 tpy of GHGs would trigger a PSD permitting requirement. Petitioners challenged this interpretation and argued that EPA could and should have avoided extending the PSD permitting program to major GHG emitters. The court adopted a plain meaning of section 169(1), which requires PSD permits for stationary sources emitting major amounts of “any air pollutant.” Both the EPA and the Supreme Court in Massachusetts v. EPA clearly established that GHGs are air pollutants. As a result, the court rejected Petitioners’ arguments that EPA should not have extended the PSD permitting program to major GHG emitters. The court rejected the Petitioners’ alternative interpretations of the PSD permitting triggers, as none cast doubt on the unambiguous nature of the statute.

Petitioners also challenged the Tailoring and Timing Rules established by EPA to facilitate initial regulations of GHGs. The court determined Petitioners lacked standing to challenge these two Rules because none had suffered an injury-in-fact as a result of the rules. Instead, the court found the Timing and Tailoring Rules actually mitigated Petitioners’ purported injuries, as many would be subject to PSD and Title V permitting requirements at an earlier time absent the rules.

First District Court of Appeal Upholds ARB’s Scoping Plan for AB 32, Finding the Plan is Not Arbitrary and Capricious

General Posted by   

On June 18, 2012, in Association of Irritated Residents v. California Air Resources Board (2012) ___ Cal.App.4th ___ (No. A132165), the First District Court of Appeal upheld the California Air Resources Board’s (“ARB’s”)  2009 Climate Change Scoping Plan, finding it complies with the requirements of California’s Global Warming Solutions Act of (2006) (“AB 32”) and that ARB’s adoption of the plan was not arbitrary or capricious. Continue reading →

Second District Orders Publication of Additional Sections of Opinion in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552

General Posted by   

On May 9, 2012, the Second District published parts 5-8 of its opinion in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552. These sections featured Petitioner’s claims of inadequate CEQA analysis for cumulative impacts, mitigation measures, alternatives, and recirculation. In each case, the court found in favor of Respondent Metro. Parts 3 and 4 of the opinion remain unpublished.

Cumulative impacts

Petitioner argued that the cumulative traffic analysis in Metro’s Environmental Impact Report (EIR) was inadequate because it failed to consider traffic impacts of related projects. Under CEQA, an EIR must discuss cumulative impacts of a project if the project’s incremental effects are cumulatively significant, that is, if the project’s effects are significant when considered together with related effects of past, current, and probable future projects. Metro’s EIR did not separately assess cumulative traffic impacts since the discussion of the traffic impacts of the project itself was already cumulative, in that it was based on a combination of existing and future conditions with and without the project.

The court held that in analyzing cumulative impacts, the agency’s discussion should note the severity of the impacts and likelihood of their occurrence, but need not provide the same level of detail as is provided for the effect of the main project. Thus, for example, Metro’s “summary of [project] projections” did not need to include analyses specific intersections that were not under environmental review when the draft EIR was circulated.

Mitigation

Petitioner also argued that Metro failed to provide adequate mitigation measures and improperly deferred mitigation for parking, noise, safety, and construction.  The court found that the EIR’s mitigation measures were not uncertain, speculative, or infeasible, and found no evidence that the measures would be ineffective, unfunded, or not implemented.

To address spillover parking, Metro adopted a measure to monitor parking activity and work with local jurisdictions to create permit parking programs where necessary. The EIR noted that Metro would reimburse local jurisdictions for these programs. The agency included alternative mitigation options such as metered parking where a permit program would not suffice. Petitioner argued that Metro could not assure formation or effectiveness of the permit program, and that such a program would be inadequate unless it retained residents’ current ability to park in their neighborhoods. The court disagreed. The court distinguished this case from Gray v. County of Madera (2008) 167 Cal.App.4th 1099, where a mitigation measure proposing to provide bottled water to compensate for a decline in water levels “defie[d] common sense” and was not substantially similar to residents’ pre-project conditions. In contrast, residents here would still have street parking, making their situation substantially similar to pre-project conditions. Additionally, the court refused to assume that simply because Metro could not require local jurisdictions to adopt the permit program, the mitigation measure was inadequate. The mitigation set for the a specific performance standard in the form of monitoring parking activity to determine if the light rail activity would increase parking utilization to 100 percent and, if so, requiring Metro to work with local jurisdictions regarding permit parking programs. Citing the second prong of Section 21081(a), which allows an agency to make a finding regarding a significant effect that changes lie within another agency’s jurisdiction, the court noted that the feact that Metro could not require a local jurisdiction to adopt a permit program, did not make the mitigation measure inadequate.

Metro’s EIR addressed removal of street parking with measures that included replacement parking and revised parking designs, such as diagonal parking. Petitioner contended a lack of evidence that such measures were feasible, given high land costs, or would actually be implemented. Unlike in Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, there was no acknowledgement by Metro of any “great uncertainty” as to whether mitigation would ultimately be funded or implemented. The court also noted Petitioner’s failure to challenge the EIR’s financial evaluation of Metro’s ability to build the project, which included allowance for mitigation measures. Since the mitigation explicitly stated that property would have to be acquired for replacement parking, and identified parcels for that purpose, the court found the mitigation measures were not uncertain or speculative and petitioner failed to meet its burden to identify any deficiency.

In anticipation of noise and vibration effects from the project, Metro’s mitigation measures included installation of sound walls alongside the rail line. The agency added that where those walls would not suffice, it would provide for sound insulation of residences to meet the applicable noise threshold. Petitioner again argued that the measure lacked evidence of feasibility, and did not include details on how such improvements would be provided. The Court rejected Petitioner’s arguments, finding that CEQA does not require a lead agency to detail how it will actually carry out the proposed mitigation measure, so long as it commits to satisfying specific performance criteria. Metro was also not required to restore residents to their original position and eliminate noise and vibration completely; the agency merely had to minimize impacts to less-than-significant levels.

Metro included mitigation measures to address safety impacts, such as coordination with affected cities and encouragement of emergency response updates, which had been successfully implemented on other Metro rail lines. Though Petitioner repeated its argument of lack of proof of effectiveness and actual implementation, the Court saw no reason to conclude that cities would fail to update their emergency response procedures as other municipalities had done in the past.

Finally, the EIR identified possible closure of lanes in major streets during project construction, and proposed providing alternative lanes on cross streets in cooperation with the cities, as well as limiting construction to nights and weekends. Petitioner argued that these measures improperly deferred mitigation and did not include performance standards. The Court countered that limiting street closure to weekend and evening hours was an acceptable performance standard. Moreover, Metro’s required compliance with traffic control plans formulated in cooperation with affected jurisdictions and in accordance with specified manuals offered additional performance standards.

Alternatives

Petitioner claimed that Metro’s failure to include a detailed examination of grade separation in a particular segment of the project resulted in an inadequate consideration of project alternatives. The court disagreed, finding the EIR evaluated a reasonable range of alternatives and no inadequacy in the EIR’s failure to include a detailed examination of the suggested alternative. Detailed analysis of the suggested alternative was neither required, since the proposed project on its own would decrease environmental impacts to a less-than-significant level, and the suggested alternative would not have offered substantial environmental advantages over the proposed project.

Recirculation

Finally, Petitioner argued that the Final EIR reflected major changes to the project made after circulation of the draft, requiring recirculation of the EIR for further public comment. Such changes included new information on grade separation at various intersections; signal phasing at one intersection; parking; and noise impacts. CEQA requires recirculation of an EIR when significant new information is added, such that the public is deprived of a meaningful opportunity to comment upon a substantial adverse environmental effect. The court found that the added information did not disclose a new substantial environmental impact or a substantial increase in severity of one of the project’s impacts. The court highlighted the fact that Petitioner did not identify how the new information would undermine Metro’s less-than-significant-impact conclusions. Thus, Metro’s decision not to recirculate was supported by substantial evidence.

 

The summary of the baseline portion of this decision can be read here:

http://rmmenvirolaw.flywheelsites.com/2012/04/second-district-upholds-agency-use-of-projected-future-condition-for-environmental-baseline/

California Supreme Court holds that exhaustion of administrative remedies is required for challenges to categorical exemptions under CEQA where public hearings are held.

General Posted by   

On June 14, 2012, the California Supreme Court decided Tomlinson v. County of Alameda (Case No. S188161), holding that the requirement for exhaustion of administrative remedies found in Public Resources Code section 21177, subdivision (a) of the California Environmental Quality Act (CEQA) applies to an agency’s decision that a project is categorically exempt from compliance with CEQA, so long as the public agency gives notice of the grounds for its exemption determination, and that determination is preceded by a public hearing at which members of the public had the opportunity to raise objections to the project.

In its decision the Court carefully considered conflicting holdings in Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 and Hines v. California Coastal Commission (2010) 186 Cal.App.4th 830.

Azusa held that section 21177’s exhaustion requirement does not apply to a challenge to a public agency’s decision that a project is categorically exempt from CEQA compliance, whereas Hines held to the contrary.

Procedurally, the issue is that while section 21777 requires that petitioners exhaust their administrative remedies during the public comment period or during a public hearing on the project before issuance of a notice of determination, CEQA does not provide for a public comment period prior to an agency’s determination of a categorical exemption. Further, no public hearing typically precedes the agency’s notice of determination in this situation, because a notice of determination is not generally filed for a categorical exemption.

Under Hines, an exhaustion provision does apply for categorical exemptions, where there was ample notice of a public hearing. The Court followed Hines rather than Azusa because it found that in this case, as in Hines, the agency did hold public hearings on the project which gave interested parties the opportunity to raise objections to the project before the agency’s exemption finding.

The Supreme Court did not reach the petitioners’ arguments that the public agency’s description of the requirements for the infill exemption was misleading, where the County omitted any mention of the infill exemption’s criterion requiring that the project be located “within city limits.” In Tomlinson, the County did not quote the full language in CEQA Guidelines section 15332 in any of its notices and staff reports. Instead, it substituted “in an established urban area” for the exemption’s language “within city limits” in all of its summaries of the exemption criteria in project materials. Petitioners asserted that this substitution misled and prevented them from raising the specific issue of whether the “city limits” restriction disqualified the project from using the infill exemption. The Court also did not address the argument that the petitioner’s extensive objections to the project on multiple issues at public hearings were sufficient to satisfy the exhaustion requirement.

The Court remanded the case to the Court of Appeal to determine whether the claims the petitioners raised were adequate to put the County on notice that the infill exemption did not apply, and whether the County’s omission of key criteria for a categorical exemption excuses the petitioner’s duty to exhaust on that issue.

This case continues to have important precedential value: it is still important to resolve whether an agency must provide full and accurate information in order to successfully assert the affirmative defense of failure to exhaust administrative remedies in CEQA litigation. The Tomlinson petitioners were represented by RMM partner Sabrina V. Teller.

 

Second District Court of Appeal Holds that Challenge to Project is Time-Barred, Since Statute of Limitations Starts Running with Initial Lease Approval, Not Subsequent Execution of Lease

General Posted by   

Van De Kamps Coalition v. Board of Trustees of Los Angeles Comm. College District (2d Dist. May 8, 2012) ___ Cal.App.4th ___ (Case No. BS129238)

The Second District Court of Appeal upheld the trial court’s ruling sustaining a demurrer without leave to amend on the ground that a petition for writ of mandate challenging a community college district’s leasing of a campus site was time barred.

 The project at issue involved the two-acre Van de Kamps Bakery building site (Building) in Los Angeles which the Los Angeles Community College District (LACCD) purchased in 2001 to construct a community college. An EIR had previously been prepared for the site when a real estate developer had proposed to demolish the Bakery building and build a Home Base store. An EIR update and to addenda were prepared to analyze the environmental impacts of the community college.

In 2008, the LACCD realized that due to state budget cuts, it would be unable to operate the campus. In 2009, in order to use the site for educational purposes, the LACCD Board adopted resolutions approving an interim use of the property and authorized a five-year lease of the Building to an outside tenant (Resolutions). The LACCD Board, however, decided that the lease agreement did not warrant additional environmental review, since the site would be used for the same educational functions contemplated in the EIR update and addenda. The same year, the Board furthered its Resolutions through various actions, such as approving a $40,000 building redesign expenditure and approving the purchase of a neighboring property (Purchase Agreement).

 In 2010, appellant Van De Kamps filed suit against the Board, challenging the adequacy of CEQA review for the Resolutions and subsequent 2009 actions (CEQA I). Following the filing of CEQA I, in 2010, LACCD undertook additional actions furthering its Resolutions. These actions included leasing a portion of one building for employment training, adding indemnification provisions to the Purchase Agreement, and amending a contract to allow for additional architectural services. Appellant moved to amend its CEQA I petition to include claims based on the Board’s 2010 actions. When the trial court denied appellant’s motion, appellant filed a second petition (CEQA II) challenging the 2010 actions. LACCD filed a demurrer to the CEQA I petition, which was unopposed and sustained without leave to amend. LACCD thereafter filed a demurrer to the CEQA II petition claiming it was time-barred, since the 180-day statute of limitations had started running with the 2009 Resolutions, not the subsequent 2010 actions. The trial court sustained the demurrer without leave to amend and the appellate court upheld the trial court’s decision.

The court based its holding on the fact that the 2010 actions were not separate “projects” under CEQA, but were instead mere modifications to the 2009 Resolutions. The court analogized this case to City of Chula Vista v. County of San Diego (1994) 23 Cal.App.4th 1713, where the court found that the executed agreement did not differ substantially from the original agreement, and was thus not a separate project for purposes of triggering a new statute of limitations. As in Chula Vista, the execution of the lease was not different enough from the lease formation to warrant independent CEQA review.

In reaching its conclusion, the court looked to when projects take legal effect, i.e., are approved, and thus trigger their statutes of limitation. Citing Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, 134, the Court stated that approval occurs “when the agency first exercises its discretion to execute a contract or grant financial assistance, not when the last such discretionary decision is made.” Under this definition, LAACD “approved” the project in 2009 when it committed itself to the lease and the Purchase Agreement, and approved the $40,000 expenditure. The subsequent approvals in 2010 did not substantially change the project or its environmental effects. The court reiterated Save Tara’s policy objection to the notion that “any development agreement, no matter how definite and detailed, even if accompanied by substantial financial assistance from the agency and other strong indications of agency commitment to the project, falls short of approval so long as it leaves final CEQA decisions to the agency’s future discretion.”

In conclusion, the court found that the 2010 actions were merely mechanisms for implementing the 2009 Resolutions. As such, they did not re-trigger the 180-day statute of limitations. That statute had run, and appellant’s action was therefore time-barred.

SB 973: “Save Our Events” Act would exempt annual fireworks displays

General Posted by   

Senate Bill 973, otherwise known as the “Save Our Events” Act, would exempt annual fireworks displays from CEQA. The CEQA Guidelines include a list of project classes that have been determined not to have a significant effect on the environment. SB 973 authorizes a lead agency to grant, on an annual basis, one categorical exemption per site for a fireworks display. The bill would thereby impose a state-mandated local program. SB 973 would authorize the office of Planning and Research to identify potential environmental issues related to fireworks displays and to develop guidelines to assist local agencies regarding those displays.

According to Senator Juan Vargas, who fought to pass the bill, “CEQA was not created to allow frivolous lawsuits to ban family and charitable events like parades and fireworks on the Fourth of July.” However, the bill’s narrowness may be fatal to its support. The limited application of SB 973 was intended to be a temporary, politically palatable compromise during negotiations, but Vargas and other supporters now say that if they cannot get broader exemptions they would rather abandon the bill.

Little Hoover Blesses Governor Brown’s Government Reorganization Plan

General Posted by   

On May 22, 2012, the Little Hoover Commission, a bipartisan state oversight agency responsible for promoting government efficiency, voted 7-0 to endorse Governor Brown’s proposal to reorganize the state government. The Governor’s plan to replace five state agencies with three includes folding the Delta Stewardship Council into the Natural Resources Agency. The proposed changes are not intended to affect the policy independence of each board, but are simply meant to achieve administrative efficiency. The Delta Stewardship Council, for example, already receives a number of administrative services from the Natural Resources Agency and is listed on the agency’s letterhead. The reorganization becomes effective July 1, 2012, and is operative a year from then. The Governor’s plan will save taxpayer dollars by making government more efficient, responsive, and coordinated. The plan is currently unopposed.

Los Angeles City Council Bans Plastic Grocery Bags

General Posted by   

On May 23, 2012, Los Angeles became the nation’s largest city to ban plastic bags at grocery stores. The City Council voted 13-1 to ban single-use plastic bags later this year after completing an EIR and adopting an ordinance. Forty-eight other cities in the state already have similar bans; San Francisco’s extends to pharmacies, restaurants, and small retailers. Large retailers in L.A. will have six months to phase out plastic bags (small retailers will have one year), after which they will provide free paper bags for six months. After that, retailers will charge ten cents per bag.

The city currently goes through 2.7 billion single-use plastic bags every year. Environmentalists supporting the ordinance noted that plastic bag waste contributes to ocean pollution, landfill expansion, littered streets, and clogged waterways. Lobbyists and union employees opposing the ban argued that it would result in job loss and shift jobs overseas. A version of the law that was passed in 2010, which covered the unincorporated areas of Los Angeles County, reduced plastic bag use in those areas by an estimated 94 percent.

5152535455