On July 26, 2010, the U.S. Environmental Protection Agency (EPA) released an interim guidance document to help agency staff incorporate environmental justice into the agency’s rulemaking process. The guidance document, “Interim Guidance on Considering Environmental Justice During the Development of an Action,” provides a step-by-step guide to help EPA staff ask questions and evaluate environmental justice considerations at key points in the rulemaking process. The guide also describes the statutory and policy framework for considering environmental justice issues. The U.S. EPA will use the lessons learned from workgroups using the interim guidance and consider them in the development of new technical guidance and revisions to the Interim Guide later this year.

The U.S. EPA is seeking public feedback on how to best implement and improve the interim guidance document. The interim guidance can be found here: http://www.epa.gov/environmentaljustice/resources/policy/ej-rulemaking.html. Feedback can also be submitted at this web address.

This blog is the second in our series on CEQA’s major milestones. No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, was the California Supreme Court’s second look at CEQA, and in that case the Court “inquire[d] into how an agency should decide whether a pending project requires an EIR.” In other words, how does an agency decide whether an EIR is required or a negative declaration and initial study are sufficient?

This case involved the approval of a project just three short weeks after the Court issued its opinion in Friends of Mammoth, which held that CEQA applies not only to purely governmental actions but also to private actions requiring a government permit or permission. The project was the approval of several test oil wells along the coast of Los Angeles. Dueling experts testified about the potential impacts of such wells: experts for the opposition testified about the geologic instability of the project site and the potential impacts of a well blowout adjacent to the ocean and a state beach; experts for the project proponent testified about how impacts would be minimized through appropriate technology and procedures. The City approved the project without making specific CEQA findings. After suit, the trial court remanded for clarification on this issue, asking whether there was any “reasonable possibility that the project will have a momentous or important effect of a permanent or long enduring nature.” On remand, the City Council concluded that there was no “reasonable possibility that the project will have a momentous or important effect of a permanent or long enduring nature.”

The Supreme Court took issue with the City’s actions. First, it noted that the verbal findings of the City, on remand, were not sufficient. The Court held that the City was required to make a written Negative Declaration when it approved the project. The Court concluded that the City’s findings were nothing more than a post hoc rationalization to support its prior actions.

Second, and more to the point for those scrambling to enforce CEQA in the wake of Friends of Mammoth, the Court found that the City had employed the wrong standard altogether. The Court looked to Public Resources Code section 21151, which then read in relevant part that an agency “shall make an environmental impact report on any project they intend to carry out which may have a significant effect on the environment.” The Court held that the standard, applied by the City and the trial court—“reasonable possibility that the project will have a momentous or important effect of a permanent or long enduring nature”—imposed “far too high a barrier to the preparation of an EIR” and was not consistent with 21151.

The Court expressly stated that it would not craft the proper test: “We do not think this court at this time should draft a substitute test [to the one formulated by the trial court]. The responsibility for formulation of such a test is expressly delegated by CEQA to the State Resources Agency.” (No Oil, supra, at p. 82, fn. 15.) Nevertheless, the Court stated that “the preparation of an EIR is key to the environmental protection under CEQA, accomplishment of the high objectives of that act requires the preparation of an EIR whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact.” (Id. at p. 75.) Subsequently, the Resources Agency embraced that dicta as its test in the CEQA Guidelines, section 15084 (now 15064), and subsequent courts, most notably First Appellate District in Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1001, read the No Oil dicta as a binding test.

The No Oil Court made several other statements that guided the development of the case law interpreting CEQA and are often quoted, including: “One major purpose of an EIR is to inform other government agencies, and the public generally, of the environmental impact of a proposed project [citations], and to demonstrate to an apprehensive citizenry that the agency has in fact analyzed and considered the ecological implications of its action.” (No Oil, supra, at p. 86.)

On June 2, 2010, the San Francisco Bay Area Air Quality Management District (BAAQMD) adopted CEQA thresholds of significance for greenhouse gas emissions. BAAQMD can certainly be seen as a trailblazer, as the agency is the first air district in the state to establish quantitative thresholds of non-stationary sources. BAAQMD adopted two quantitative thresholds: a “bright line” threshold of 1,100 MT CO2e/year; and an “efficiency” threshold of 4.6 MT CO2e/“service population.” BAAQMD also approved a qualitative threshold based on consistency with a qualified greenhouse gas reduction strategy or similar program. These thresholds apply prospectively; thus, for any projects that were pending before June 2, a lead agency can choose not to apply the thresholds. BAAQMD developed these thresholds through a rigorous process that yielded its share of friends and foes. Of note is the positive feedback from the California Attorney General’s Office, which supports the adopted thresholds because they are devised to meet clearly identified, quantifiable objectives that are linked to the goals of the Global Warming Solutions Act of 2006, commonly known as AB 32.

A more detailed discussion of the recently adopted thresholds can found in the July 2010 issue of the California Land Use Law & Policy Reporter, available at: http://www.argentco.com/htm/n20020101.123890.htm. The feature article, entitled “The San Francisco Bay Area Air Quality Management District Adopts Stringent CEQA Thresholds of Significance for Greenhouse Gas Emissions,” was written by Tiffany K. Wright, a partner at Remy Thomas Moose & Manley, LLP.

In Kern County Water Agency v. Watershed Enforcers (2010) 185 Cal.App.4th 969, three local water agencies intervened in a mandate action, arguing that the California Endangered Species Act (CESA) did not apply to the Department of Water Resources (DWR) because the agency did not qualify as a “person” within the meaning of CESA (Fish and Game Code) section 2080. The First District Court of Appeal disagreed with the appellant water agencies based on the court’s evaluation of CESA’s context, policies, and statutory language.

Section 2080 prohibits any “person” from taking an endangered or threatened species without appropriate permit authority from the Department of Fish and Game (DFG). Section 67 defines “person” to mean “any natural person or any partnership, corporation, limited liability company, trust, or other type of association.” Appellants first argued that the literal textual meaning of this definition excluded state agencies. The court agreed with appellants on this initial point, but went on to note that section 2 allowed an expansion of the definition if other statutory provisions or the context required. In the court’s view, this statutory invitation to go beyond a literal reading of section 67 undermined appellants’ main contention that the definition of “person” was limited to the literal reading of that section.

The court then went on to explain its conclusion that a state agency is a “person” under section 2080. First, the court examined CESA policies as set forth in sections 2053 and 2055. These sections generally promote the state’s policy of resource conservation and protection of endangered and threatened species. The court also turned to section 2081, which specifically allows DFG to authorize a take permit for public agencies, thus exempting them from the prohibition found in section 2080. The court reasoned that, if section 2080 did not apply to public agencies, the exemption for such agencies in section 2081 would be surplusage.

Next, the court reviewed the case law cited by the trial court, including Department of Fish and Game v. Anderson-Cottonwood Irrigation District (1992) 8 Cal.App.4th 1554, San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, and San Bernardino Valley Audubon Society v. Metropolitan Water District (1999) 71 Cal.App.4th 382. While none of these cases directly dealt with issue at bar, the court noted that they tacitly assumed that the public entity in question was a “person.” The court found this assumption logical because it made no sense to read section 2080 as exempting public agencies, which operate large infrastructure projects, while covering individuals and business associations, which generally take fewer species.

Finally, the court reviewed the interpretation of CESA by DFG, its implementing agency. The court found that DFG’s regulations contemplated that the incidental take permitting process applied to state agencies. Specifically, the regulations require additional information for take permit applications submitted by public agencies. The court also noted that DFG regulations expressly authorize the taking of spring-run chinook incidental to operation of the State Water Project. The court therefore concluded that DFG itself considers a state agency to be a “person.”

Appellants offered several arguments against “person”-hood for state agencies, but the court found each of these arguments to be unpersuasive. For example, appellants contended that the Legislature deliberately elected not to include the Federal Endangered Species Act’s (FESA) definition of “person” into CESA, which was enacted subsequent to FESA. Because the definition of “person” under FESA explicitly includes state agencies, appellants argued, the Legislature must not have intended state agencies to be persons under CESA. The court noted, however, that the definition of “person” in section 2080 had been created before the enactments of both FESA and CESA. Thus, the court disagreed with appellants’ interpretation of legislative intent.

In Tomlinson v. County of Alameda (2010)189 Cal.App.4th 1029, the First District Court of Appeal examined a determination by Alameda County that a particular project qualified as in-fill, and was therefore exempt from CEQA review. While the project’s location could be described as an “urbanized area,” the court found that an in-fill exemption was inappropriate because the relevant parcel was not within the boundaries of a municipality.

The project in question was the construction of single-family homes in an unincorporated area of Alameda County that was zoned for that use, and that already contained other single-family homes. The County determined that the project was categorically exempt from CEQA review under CEQA Guidelines section 15332, which allows for in-fill development. Fred and D’Arcy Tomlinson challenged this determination. While the Tomlinsons raised several objections during the administrative process, where they were not represented by legal counsel, their central argument in court focused on section 15332, subdivision (b). This provision limits the scope of the exemptionto projects “within city limits,” and the Tomlinsons therefore contended that a project on unincorporated land could not qualify as in-fill. The County responded with two main counterarguments. First, it stated that the Tomlinsons had not exhausted their administrative remedies. Second, it argued that the phrase “within city limits” should be construed to mean within urbanized areas, including those located in unincorporated areas.

On the question of exhaustion, the court relied on Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165 (Azusa). Azusa stated that the exhaustion requirement only applies “where (1) CEQA provides a public comment period, or (2) there is a public hearing before a notice of determination is issued.” (Id. at p. 1210.) Using this as its standard, the court, citing two reasons, found that exhaustion did not apply to an exemption determination. First, there is no comment period before an agency issues an exemption finding. Second, there could be no “public hearing before a notice of determination is issued” because such a notice is not filed when an agency declares an exemption. (See Pub. Resources Code, § 21177, subd. (a) (limiting petitioners in CEQA cases to issues presented to an agency “during the comment period . . . or prior to the close of the public hearing on the project before the issuance of the notice of determination”).) For lack of opportunity, therefore, the Tomlinsons were not required to exhaust their argument at the administrative level.

Turning to the substantive issue of interpreting section 15332, the court agreed with the Tomlinsons, finding that the plain meaning of the phrase “within city limits” requires a project to occur within the boundaries of a municipality (city). It was not sufficient for a project to be “within an urbanized area” if such an area is outside a city. The court noted that the term “urbanized area” is defined and used in the Guidelines to explain other categorical exemptions, so the use of the phrase “within city limits,” rather than “within an urbanized area,” suggested a different meaning for the former term.

The court was not persuaded by the County’s contention that the policy behind section 15332 required a less “inflexible” interpretation of “within city limits.” As the court stated, the exemptions listed in the Guidelines reflect a determination by the Secretary for Resources that “particular classes of projects generally do not have a significant effect on the environment.” Given the plain meaning of “within city limits,” the court therefore viewed the County’s point, not as a statement of what in-fill does include, but as an argument that in-fill should include urbanized areas. The court found this to be a policy question beyond its prerogative.

In City of Santee v. County of San Diego (2010) 186 Cal.App.4th 55, the Fourth District Court of Appeal has ruled that, in approving a “siting agreement” for a reentry facility, San Diego County and the California Department of Corrections and Rehabilitation had not “approved” a “project” under CEQA.

The County and Corrections entered into the “siting agreement” in September 2008. The County agreed to identify up to three potential sites in the County to locate a reentry facility, where state prisoners would receive assistance as they transition back into society. The agreement included an exhibit showing two potential sites: one at a County jail in the City of Santee, and another on State-owned land at the existing Donovan prison in Otay Mesa. Under the agreement, if Corrections selects one of the sites identified by the County, the State would provide the County with preferential access to $100 million in financial assistance to help construct county jails, and the County would cooperate with the planning and construction of the re-entry facility. Corrections would be responsible for performing CEQA review of the reentry facility.

The City of Santee sued, alleging CEQA analysis should have been performed because the siting agreement was a “project.” In particular, Santee alleged the approval of the siting agreement committed the County and Corrections to expanding the existing County jail located in Santee to house the reentry facility. The County and Corrections demurred. The trial court sustained the demurrer. Santee appealed.

The Court applied the test established by Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, and found the approval of the siting agreement was not a “project”:

• The siting agreement did not select a location for the reentry facility.
• The agreement did not reference expansion of the existing jail in Santee.
• The agreement did not commit Corrections to select any of the locations identified by the County for the reentry facility.
• Financial assistance would be provided only if Corrections ended up selecting a site.
• The County’s commitment to convey county-owned land was conditional, because that obligation would arise only if Corrections selected a county-owned site.
• The agreement had no direct impact on the contemporaneous County proposal to expand the County jail in Santee.
• Preliminary infrastructure studies at the State-owned Otay Mesa site reflected Corrections’ efforts to determine the feasibility of the site, not a commitment to approve a project there.
• The County had not impermissibly “segmented” its review of the siting agreement, the reentry facility, and the Santee jail expansion.

“In sum, because nothing in this record suggests the siting agreement has from a practical perspective foreclosed consideration of alternatives to any project or mitigation measures for those projects, the trial court properly sustained the [C]ounty’s demurrer to Santee’s petition.” The trial court did not err in declining to provide Santee with leave in amend.

Comment: When the Supreme Court issued its decision in Save Tara, there was concern among agencies that, because the Supreme Court did not adopt a “bright line” test, petitioners would be encouraged to challenge under CEQA all manner of preliminary agency actions. There was also concern that, because the Save Tara Court did not adopt a “bright line” test, agencies would enter into such agreements at their peril. The first concern was warranted; the issue of what constitutes “approval” of a “project” continues to be fodder for petitioners. But most of the courts applying the Save Tara test have upheld agency action, so long as the agency’s preliminary agreements or understandings do not foreclose later consideration of mitigation measures or alternatives. The City of Santee decision is the latest example of this trend.

In Torrey Hills Community Coalition v. City of San Diego (2010) 186 Cal.App.4th 429 (Torrey Hills), the Fourth District Court of Appeal upheld the dismissal of a CEQA Petition due to the Petitioners’ (1) failure to serve a summons within 90 days of project approval as required by Government Code section 66499.37, and (2) failure to make a written request for a hearing within 90 days of filing the action as required by Public Resources Code section 21167.4, subdivision (a). In reaching the holding, the court affirmed that the holdings in Friends of Riverside’s Hills v. City of Riverside (2008) 168 Cal.App.4th 743, 748 (Friends) and County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943, 953 (County of Sacramento) apply retroactively.

The Petitioners challenged the City of San Diego’s approval of a condominium development project based on several alleged violations of CEQA. The City filed a Motion to Dismiss alleging that the case must be dismissed for two procedural reasons. First, the City alleged that the Petitioners violated the Subdivision Map Act (SMA) by failing to serve a summons within 90 days of the City’s approval of the project, as required pursuant to Government Code section 66499.37. Second, the City alleged that the Petitioners failed to comply with CEQA because the Petitioners did not file a written request for a hearing within 90 days of filing the writ petition, as required pursuant to Public Resources Code section 21167.4, subdivision (a). The trial court granted the motion to dismiss.

In arguing that the trial court’s decision should be reversed, the Petitioners did not contest the trial court’s determination that all the CEQA claims were within the scope of the SMA. Therefore, the question before the court was not whether Government Code section 66499.37 applied, but only whether compliance with the section “was impossible, impracticable, or futile due to causes beyond the plaintiff’s control.” The court found that, after Friends was published, the Petitioners made no effort to obtain a summons before the 90-day deadline expired. The court explained further that the normal remedy of a party aggrieved by an act or omission of the clerk is to apply to the court for an order directed to the clerk. The court thus found that Petitioners’ failure to serve a summons within 90 days of project approval required dismissal.

Although the Petitioners’ failure to comply with Government Code section 66499.37 was dispositive, the court chose to exercise its discretion to address the City’s claim under Public Resources Code section 21167.4, subdivision (a). The Petitioners argued that they had complied with Public Resources Code section 21167.4, subdivision (a), by making an oral request for a hearing. The court in County of Sacramento had addressed this exact issue, holding that a written request is required under this provision, and declaring that its holding should apply retroactively. (County of Sacramento, supra, 180 Cal.App.4th at page 953.) The Torrey Hills court agreed with the holding in County of Sacramento. The court explained further that while section 21167.4, subdivision (a), does not expressly require CEQA petitioners to make a written request, the plain language of other subdivisions in the section establish that the request must be in writing. Therefore, the court found that the Petitioners’ failure to make a written request was not excusable, and provided additional support for the trial court’s granting of the Motion to Dismiss.

The State Senate Committee on Local Government has released the first draft of its annual memo summarizing bills that the Committee reviewed during the legislative year. The 2010 edition includes measures reducing the population threshold for counties to regulate fire companies and creating the Future Sustainable Communities Pilot Project. It does not contain any significant adjustments to CEQA. The final version of the memois scheduled be released in early October, after Governor Schwarzenegger has had a chance to act on bills that are still pending. The full text of the memo’s first draft can be found at the Committee’s website: http://senweb03.senate.ca.gov/committee/standing/LOCAL_GOV/GREATESTHITS2010.htm

On May 5, 2010, the US Environmental Protection Agency (EPA) published a final rule (see 75 FR 24409) that, among other things, officially reclassified the Sacramento Metro (Metro) area with respect to its non-attainment status in relation to the 1997 8-hour ozone national ambient air quality standard (NAAQS). While the area previously had been designated “serious,” it is now “severe-15” as of June 4, 2010. As a result of this reclassification, by June 4, 2011, the Metro portion of the California State Implementation Plan (SIP) must be revised to make it consistent with New Source Review requirements for 8-hour ozone in “severe-15” areas. This revision will cover the Sacramento Metropolitan Air Quality Management District (AQMD), the Placer County Air Pollution Control District, and the Feather River AQMD. EPA deferred setting a deadline for revising the Metro section of the California SIP to meet the provisions of Clean Air Act section 185, which deals with enforcement against “severe” ozone non-attainment. The final rule required no other SIP revisions.

This action by EPA is part of a long-term effort to bring the Metro area into attainment of 8-hour ozone NAAQS “as expeditiously as practicable, but not later than” June 15, 2019. The rule’s more immediate impact is on general conformity applicability thresholds. For projects that involve federal funding or approval, and that are subject to review under either the California Environmental Quality Act (CEQA) or the National Environmental Policy Act (NEPA), the thresholds for both nitrogen oxides and reactive organic gases are lowered from 50 tons per year to 25 tons per year. In addition, the Metro area’s new non-attainment designation will need to be included in the description of existing air quality conditions in environmental documents.