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FOURTH DISTRICT UPHOLDS CITY’S APPROVAL OF AN ADDENDUM TO A PROGRAM EIR FOR A RESIDENITAL HOUSING PROJECT

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In Olen Properties Corporation v. City of Newport Beach (2023) 93 Cal.App.5th 270, the Fourth District Court of Appeal held that no new conditions existed that would trigger the need for a subsequent EIR for a residential housing project in the designated Airport Area near John Wayne Airport.

Background

The City of Newport prepared an addendum to the City’s 2006 general plan program EIR for a residential housing project. The Project is a 312-unit residential housing development on an existing surface parking lot in a mixed-use development area, located within the designated Airport Area near the John Wayne Airport. The addendum concluded that the Project’s impacts would either be the same or not substantially greater than those described by the program EIR.

Olen Properties Corporation, an owner of commercial property near the Project site, challenged the City’s approval of the Project and the addendum. The trial court rejected the petitioner’s claims and the petitioner appealed, arguing that new conditions not addressed in the program EIR required the City to prepare a subsequent EIR, rather than an addendum.

The Court of Appeal’s Decision

Land Use

The Court of Appeal rejected the petitioner’s claims that the City violated several land use policies in the City’s general plan. First, it rejected the argument that the Project was not large enough to be consistent with the 10-acre requirement for a “mixed-use residential village” because the court determined that the City properly adopted the its Planning Commission’s definition of the Project to include the surrounding business area—thus satisfying this size requirement. Second, the court rejected the argument that the Project’s “public park” did not qualify as a required “neighborhood park.” The court found this terminology distinction meaningless. Third, the court found that the Project’s irregularly shaped park satisfied the minimum dimension requirements—which the court interpreted as exceeding 150 feet in two dimensions, measured from any point within the park’s space, rather than the lesser of the park’s length or width.

Standard of Review

The court explained that the reverse substantial evidence test described in Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 applies only in limited circumstances where the initial EIR is a program EIR, and a subsequent project is proposed which is not the same or within the scope of the Project, program, or plan described in the program EIR. Otherwise, the appropriate standard is the deferential substantial evidence standard, under which the court considers whether substantial evidence supports the City’s determination that none of the conditions for requiring a subsequent or supplemental EIR under Public Resources Code section 21166 exist.

The court applied the deferential substantial evidence standard because the Project is within the scope of the projects described in the program EIR, which expressly contemplates the construction of higher density housing within the Airport Area.

Traffic

The court held that the City’s use of Level of Service instead of Vehicle Miles Traveled to analyze traffic impacts in the addendum for the Project was appropriate because the program EIR used LOS, and there is no feasible way to compare LOS with VMT. Moreover, the court explained that CEQA Guidelines section 15064.3 (the section requiring VMT to analyze traffic impacts) operates “prospectively” and subsequent changes to the guidelines are not “new information” triggering a subsequent EIR. Otherwise, the court reasoned, any changes to the CEQA Guidelines would trigger the preparation of an EIR for every project.

Hazardous Materials

The court rejected the petitioners’ argument that the proximity to a preexisting semiconductor plan would result in environmental impacts. The petitioner and the City provided conflicting expert opinions on this issue. The court concluded that because the substantial evidence standard of review applies, the City’s conclusion was supported and the petitioner’s conflicting evidence is inconsequential.

CC&Rs

The court rejected the petitioner’s claim that the Project does not comply with CC&Rs for the area because they are covenants between private parties, and there is no legal requirement for an agency to consider CC&Rs in an EIR. Moreover, the court explained that the CC&Rs predate the program EIR, and they therefore cannot constitute changes in the Project or its circumstances requiring a subsequent EIR.

Geology and Soils

The court rejected the petitioner’s claim that the Project’s geotechnical report recommendations indicated that impacts on geology and soil could be significant. The court explained that the recommendations were aimed at protecting the Project from corrosion from soil—such as by encasing metal materials in corrosion-resistant materials—and were not designed to protect the environment from the Project.

Lastly, the court concluded that the Project was not required to have a paleontologist physically present at the Project site constantly, and that the Project’s on-call paleontologist was consistent with the City’s general plan requirements.

FIRST DISTRICT UPHOLDS EIR FOR UC BERKELEY’S WILDFIRE FUEL MANAGEMENT PLAN

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In a partially published opinion Claremont Canyon Conservancy v. Regents of the University of California (2023) 92.Cal.App.5th 474, the First District Court of Appeal held that an EIR for wildfire-driven vegetation removal projects did not need to include a tree inventory or identify the number of or specific trees to be removed to comply with CEQA because the EIR contained sufficient information to analyze environmental impacts and preparing a tree inventory was not reasonably feasible.

Background

The Regents of the University of California, Berkeley worked with a wildland fire manager and fire ecologist to prepare a Wildland Vegetative Fuel Management Plan for an 800-acre fire-prone parcel of land on UC Berkeley’s campus, known as Hill Campus. Hill Campus is heavily forested and located in a “Very High Fire Hazard Severity Zone,” and “has been plagued by wildfires;” beginning in 1905 and most recently in 2017 when the Grizzly Fire burned approximately 24 acres. The Plan proposed several vegetation removal projects, including one fire fuel break project and three fire hazard reduction projects, with the goal of reducing the wildfire risk on Hill Campus. In developing the Plan and selecting the project locations, the Regents relied on fuel models to predict fire behavior, which considered the different vegetation types across Hill Campus. The Plan proposed removing dead, unhealthy or structurally unsound trees; trees that would torch or burn with high fire intensity; and certain understory shrubs.

The Regents prepared an EIR for the Plan, containing both programmatic and project-level review, and certified the Final EIR in early 2021. The EIR identifies objective criteria for tree removal and proposes the principle of “variable density thinning,” which considers site-specific conditions to create gaps in canopy cover to reduce canopy fire spread. The number of and specific trees to be removed would be determined by a certified arborist and registered professional forester by applying these criteria and this principle.

Two organizations, the Claremont Canyon Conservancy and the Hills Conservation Network, filed petitions for writ of mandate challenging the adequacy of the EIR’s description of the vegetation removal projects. After consolidating the cases, the trial court ruled in favor of the petitioners, concluding that the EIR’s project descriptions were “not accurate, stable and finite” and only provided “conceptual criteria,” rendering the project descriptions “vague and ambiguous.” The Regents appealed.

The Court of Appeal’s Decision

On appeal, Hills and Claremont argued that CEQA required the EIR to identify the specific trees that would remain in the fuel break area and that the EIR’s failure to specify the number of trees that would be removed made it was impossible to evaluate the projects’ environmental impacts; thereby rendering the EIR project description “unclear and unstable” and preventing meaningful comparisons between the plan and the project alternatives. The court disagreed.

The court pointed out that CEQA Guidelines section 15124 requires a project description to include specific information—“the precise location and boundaries of the proposed project on a detailed map; a general description of the proposed project’s objectives, including the project’s underlying purpose; a general description of the project’s technical, economic, and environmental characteristics; and a brief description of the EIR’s intended uses.” The court found that the EIR contained all of the required information. The CEQA Guidelines, the court noted, do not require a project description to “supply extensive detail beyond that needed for evaluation and review of the environmental impact[.]”

The court then noted that, here, where “a project is subject to variable future conditions,” such as “unusual rainy weather, tree growth, impact of pests and diseases, [and] changing natural resources,” a project description must “be sufficiently flexible” to account for those conditions. Hills argued that conditions within the project area would not substantively change in any “unforeseen way.” But, the court found this argument unavailing given the substantial evidence in the record demonstrating otherwise. The court then concluded that as long as an EIR contains sufficient information to enable decision-makers and the public to understand the projects’ environmental consequences it satisfies CEQA’s requirements. Accordingly, the court determined that the EIR “need not specify, on a highly detailed level, the number of trees [to be] removed.” The absence of this information did not violate CEQA because the project’s’ basic characteristics were “accurate, stable and finite,” contrary to the trial court’s determination.

The Regents further contended that it was not reasonably feasible to prepare a tree inventory and so the EIR could not violate CEQA for omitting one. The court agreed, finding sufficient evidence in the record to support this conclusion (steep and rugged terrain of Hill Campus created impediments, high cost associated with an inventory). Because the project area was subject to variable environmental conditions, on-the-ground realities could significantly change between the EIR’s preparation and project implementation, making it impractical to identify specific trees to remove.

Lastly, the court emphasized that “technical perfection, scientific certainty, and exhaustive analysis” are not required of an EIR; rather, it looks at whether the EIR is adequate, complete, and represents a good-faith effort at full disclosure. The court concluded that the EIR “provides sufficient information to understand the projects’ environmental impacts” and “sufficient detail to enable the public to understand the environmental impacts associated with the Regents’ plan to remove vegetation in specific locations on the Hill Campus to reduce wildfire risk.”

The remainder of the opinion disposing of other CEQA claims challenging the EIR’s methodology for wind speed modeling and its analysis of and visual impacts is unpublished.

– Alina Werth

SECOND DISTRICT UPHOLDS CITY OF POMONA’S RELIANCE ON CEQA GUIDELINES SECTION 15183 EXEMPTION FOR APPROVAL OF A ZONING OVERLAY DISTRICT ALLOWING COMMERCIAL CANNABIS ACTIVITIES

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In Lucas v. City of Pomona (2023) 92 Cal.App.5th 508, the Second District Court of Appeal held that the City of Pomona properly relied on the exemption provided in CEQA Guidelines section 15183 when approving a zoning overlay district allowing commercial cannabis activities on specific parcels located in certain areas within the City.

Background

In the years following the 2016 voter passage of the state’s Control, Regulate and Tax Adult Use of Marijuana Act, which legalized the cultivation, manufacturing, distribution, and sale of nonmedical cannabis and cannabis products, the City of Pomona passed several ordinances in anticipation of allowing cannabis operations within City limits—(i) an ordinance implementing a cannabis business tax; (ii) an ordinance establishing a formal application process to obtain a cannabis business license; and (iii) specifically relevant to the case, an ordinance to develop a commercial cannabis permit program overlay district within existing zoning designations in the City.

To establish this overlay district, constituting a “project” under CEQA, the City underwent a multifaceted process that included the establishment of buffers from sensitive uses such as schools, conducting research and site visits to other cities with legally operating cannabis businesses, meeting with applicable state agencies and the local police department, holding a series of community meetings, and conducting a City-wide parcel-level analysis.

Based on this process, the City determined that a total of six types of commercial cannabis activity could occur with the City—(1) store front retail, (2) manufacturing, (3) cultivation (indoor), (4) testing, (5) distribution, and (6) micro-business. The City prepared a “Determination of Significance” demonstrating that the proposed land uses “are consistent with and similar to already existing land uses” in “the Pomona Zoning Ordinance and the General Plan Update.”  The City also prepared an initial draft overlay map showing 414 parcels where cannabis businesses could be established. The initial map included a parcel owned by petitioner Lucas (which he claimed to have spent two million dollars preparing for operation of a cannabis business), however, the final draft excluded this parcel.

The City then had a third-party consultant prepare a “Findings of Consistency” document, which demonstrated that the project would not “have new or increased significant environmental effects beyond those identified in the 2014 [General Plan Update] EIR” by addressing “each of the environmental issues studied in the 2014 EIR [and] comparing the effects of the proposed project to the effects of the adopted General Plan Update.”

As a result, the City determined that the project qualified for the CEQA streamlining and exemption allowable under CEQA Guidelines section 15183.

At an October 2019 Planning Commission hearing considering the project, Lucas requested that the City reconsider including his property in the overlay district. Other parties opposed the project for different reasons—the nearby cities of La Verne and Walnut requested increased buffers from their City boundaries, as they both prohibited commercial cannabis activity and, in the case of Walnut, questioned CEQA Guidelines section 15183 applicability to the project. The Planning Commission did not recommend project approval to City Council and requested changes to the project.

After the hearing, petitioner and adjacent cities (amongst other commenters) sent correspondence to the City again expressing opposition to the project and making specific requests for changes. The project was thusly amended to create a 600-foot buffer from City boundaries and further remove more than a hundred parcels, leaving 292 parcels eligible for commercial cannabis activities.

In November 2019, the Pomona City Council approved the modified project and adopted the Determination of Significance and Findings of Consistency, and concluded that the project met the requirements in CEQA Guidelines section 15183. The City then filed a Notice of Exemption with the county recorder. The Determination of Significance states that the public has ten days to appeal. No one appealed.

Lucas filed a petition for writ of mandate alleging a CEQA violation for the City’s use of the Guidelines section 15183 exemption for the project. Three weeks before the hearing on the merits, at which the trial court found against petitioner, City voters passed Measure PO, “which adopted a cannabis permit overlay identical to the Project.” A few weeks later, the City Council adopted and ratified Measure PO. Lucas appealed the trial court’s decision, but did not file an appeal or request a court-ordered stay of Measure PO.

Court of Appeal’s Decision

The court bypassed the City’s standing and exhaustion of administrative remedies claims by assuming for sake of argument Lucas prevailed on these procedural issues, and therefore only reviewed the merits of the challenge to the City’s reliance on the CEQA Guidelines section 15183 exemption. The court reviewed this claim under the substantial evidence standard, which, per prevailing caselaw, is proper where an agency determines a project’s consistency with a prior program EIR.

To use the Guideline section 15183 exemption, as noted by the court, a project must be “consistent with the development density established by existing zoning, community plan, or general plan policies for which an EIR was certified,” whereas “consistent” means “the density of the proposed project is the same or less than the standard expressed for the involved parcel in the general plan, community plan or zoning action for which an EIR has been certified, and that the project complies with the density-related standards contained in that plan or zoning.”

As to density, Lucas argued that, because the existing zoning contains no density-related standards, there was no way for the project to be deemed consistent. The court disagreed with this “literal approach” and instead concluded that the omission of the “the exact word ‘density’ or exact phrase “density-related standards’” in a zoning ordinance “does not necessarily mean that those topics were not discussed with different verbiage.” Although the court did not illuminate what verbiage in the applicable zoning ordinance might demonstrate density, it did note that the 2014 General Plan Update EIR, the project’s Determination of Similarity, and the project’s Findings of Consistency all addressed land use and/or density. And, importantly, Lucas did not file an appeal of the Determination of Similarity conclusions. Therefore, he was “foreclosed from challenging any of [its] commercial cannabis activities/land findings.”

On the need for additional environmental review, the court again rebuked Lucas’ “literal approach.” The City’s Determination of Similarity deemed the six types of proposed cannabis land uses “similar to already existing land uses, and as such…covered by the uses contemplated by the 2014 EIR and 2013 General Plan Update.” Thus, just because the 2014 General Plan Update EIR did not contain the explicit words “marijuana” or “cannabis” did not mean it did not address that land use. The court likewise denounced Lucas’ argument that the project presents “unique and peculiar impacts associated with cannabis-related business” because, as it noted, the project itself “does not guarantee anyone the automatic right to establish a cannabis-related business,” it merely “imposes an overlay use on existing zoning” that only provides an opportunity to apply for a business permit. The court again relied on the findings in the Determination of Similarity “that cannabis uses were sufficiently similar to existing uses allowed by the underlying zonig” as substantial evidence supporting the City’s determination.

Lastly, Lucas argued that the project’s impacts on “traffic, air quality, greenhouse gas emissions, land use/planning, noise, and public services” did not fall within the scope of the less-than-significant conclusions made in the 2014 General Plan Update EIR. The court addressed each impact area, ultimately concluding that substantial evidence demonstrated that the project would not generate impacts beyond those identified in the 2014 EIR, and that existing mitigation measures and uniform standards applied to the project would reduce or manage any impacts.

Notably, the court found that Lucas’ concern with cannabis cultivation odor was addressed by the City’s municipal code regulating odor control devices. It also found that cultivation-related energy use, which petitioner claimed would result in “‘extraordinary [greenhouse gas emissions] impacts,’” could be dealt with through development standards, similarly to “other uses that could be developed in the Overlay District subareas.” On noise emitted by backup generators used in cannabis operations, the court opined that “[s]urely back-up generators are also utilized by other retail stores or manufacturers in times of a power outage.” And, in response to Lucas’ claim that the project would result in a greater impact on police services than analyzed in the 2014 General Plan Update EIR, the court noted in particular that “[t]he project would not result in the need for additional police protection facilities.”

– Casey Shorrock

SECOND DISTRICT UPHOLDS CITY OF VENTURA’S DETERMINATION THAT A 1989 BRONZE STATUE OF FATHER JUNÍPERO SERRA IS NOT A HISTORIC LANDMARK AND THEREFORE ITS RELOCATION WAS NOT SUBJECT TO CEQA

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In Coalition for Historical Integrity v. City of San Buenaventura (2023) 92.Cal.App.5th 430, the Second District Court of Appeal affirmed the trial court’s determination that the City of San Buenaventura, colloquially known as Ventura, acted appropriately and did not violate CEQA when it relocated a statue of Father Junípero Serra.

Background

In the summer of 2020, a bronze statue of Father Junípero Serra, located in downtown Ventura, was the subject of protests and vandalism. In response, the City Council voted to relocate the statue to the San Buenaventura Mission. The bronze statue, which was dedicated in 1989, had replaced a 1936-era concrete statue of Father Junípero Serra that had cracked and was in danger of falling apart.

A citizen’s group, the Coalition for Historical Integrity, challenged the City’s decision to relocate the statue and sought an injunction and restraining order to prevent the removal of the statue. The Coalition argued that the bronze statue was a historic landmark and therefore environmental review under CEQA was necessary. The trial court denied the Coalition’s request for relief and the City subsequently relocated the bronze statue to the mission. The Coalition appealed.

The Court of Appeal’s Decision

On appeal, the court held that removal of the bronze statue did not require CEQA review under Public Resources Code section 21084.1 because the “preponderance of the evidence” demonstrated that the statue was not “historically…significant” and likely did not match any definition of historical resources set forth in section 5020.1.

The Coalition first argued that the statue qualified as a historic resource because it was designated as such by the City in 1974. However, as the City countered and the court agreed, it was the original circa 1936 concrete statue that received a historic designation, and not the circa 1989 bronze statue. The Coalition then argued that the City’s historical resources report prepared by a third-party consultant, which found the statue to not be historically significant, did not constitute substantial evidence because it does not provide “participant testimony” and contained no evidence that its author was a qualified expert. The court again disagreed, because “municipal agencies can properly consider and base decisions on evidence that would not be admissible in a court of law” and because the report appeared sufficient. The court further rejected the Coalition’s argument “that section 21084.1 requires the City to find that the statue is ‘no longer’ culturally or historically significant,” noting that “there is no reason why the presumption cannot be rebutted by a finding that the statue was never culturally or historically significant.” Accordingly, the City appropriately determined that the bronze statue was not a historic landmark and thus not subject to CEQA review.

In affirming the City’s decision, the court noted that there is a “40-year-old threshold required for local designation as a historic landmark,” which the bronze statue did not meet. The court also disagreed with the Coalition’s argument that removal of the statue was quasi-judicial and that City Council unlawfully acted with bias and prejudice when deciding to relocate the statue. The court found that City Council was instead acting in a quasi-legislative manner, making a policy decision based on the statue being offensive to some members of the community, rather than a decision based on the criteria of a statute or ordinance. Because the statue was not considered a historic landmark, the court held that code provisions for removing a historic landmark status did not apply.

–  Alina Werth

SECOND DISTRICT HOLDS REGIONAL WATER BOARDS ARE NOT REQUIRED TO EVALUATE UNREASONABLE USE OF WATER OR MAKE FINDINGS OF SIGNIFICANCE WHEN ISSUING WASTEWATER DISCHARGE PERMITS

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UPDATE:

On June 2, 2023, the Second District Court of Appeal vacated their prior opinion and issued a revised opinion in Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 92 Cal.App.5th 230, following a request for modification from the State Water Resources Control Board and the Los Angeles Regional Water Quality Control Board (collectively, the Boards). The Boards sought clarification about the Regional Board’s authority to regulate the unreasonable use of water under article X section 2 of the California Constitution and Water Code sections 100 and 275, and the scope of the CEQA exemption in Water Code section 13389. The court’s revised opinion maintains the original holdings but clarifies their scope.

The revised opinion makes clear that nothing in the holding was meant to limit a regional water quality control board’s authority to regulate the unreasonable use of water. According to the court, its decision expresses “no opinion as to whether the State Board may direct or authorize the regional water quality control boards to take actions related to preventing the waste or unreasonable use of water in coordination with the State Board’s efforts in this regard.” As noted by the court, this clarification is important to ensure that coordination between the regional water quality control boards and the State Board regarding issues of waste and unreasonable use of water can continue and is not undermined by language in the opinion.

The revised opinion also clarifies that, because the instant case only deals with NPDES-equivalent permits that are subject to the Water Code section 13389 CEQA exemption, the court did not decide whether the exemption applies to other types of waste discharge permits not at issue in this case.

– Alina Werth

 

In Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 88 Cal.App.5th 874, rehearing granted March 27, 2023, the Second District Court of Appeal held that the Regional Water Quality Control Board does not have a duty to evaluate whether discharges of treated wastewater are an unreasonable use of water under article X, section 2 of the California Constitution and Water Code sections 100 and 275. The court also held that under CEQA, Regional Water Quality Control Boards are not required make findings of significance under Public Resources Code section 21002 when issuing wastewater discharge permits, which are exempt from CEQA pursuant to Water Code section 13389.

Background

The Regional Board renewed permits allowing four publicly owned treatment works (POTWs) to discharge millions of gallons of treated wastewater daily into the Los Angeles River and Pacific Ocean.

Petitioner requested review of the permits to the State Water Resources Control Board, which declined review. Petitioner then filed petitions for writs of mandate against the State Board and the Regional Board (collectively, the Boards), claiming violations of the Water Code and CEQA.

The Boards demurred to the petitions. The trial court sustained the demurrer as to the Regional Board, but overruled the demurrer as to the State Board, finding that the State Board had a constitutional and statutory duty to prevent the waste of water. The trial court also ruled that the Regional Board did not have to comply with CEQA when issuing wastewater discharge permits, pursuant to an exemption under the Water Code.

The trial court held that the State Board failed to fulfill its duty with regard to the four POTWs and accordingly issued four judgments and four writs of mandate against the State Board. The State Board appealed the four judgments. Real Party in Interest appealed the judgment against the State Board pertaining to its POTW. Petitioner appealed the trial court’s decision to sustain the demurrer in favor of the Regional Board. The appellate court consolidated the appeals.

The Court of Appeal’s Decision

California Constitution & Water Code

The Court of Appeal held that the Regional Board does not have a duty to evaluate whether discharges of treated wastewater are an unreasonable use of water under article X, section 2 of the California Constitution and Water Code sections 100 and 275. The court determined that the Legislature did not design or empower the Regional Board to enforce the mandates of article X, section 2 when issuing wastewater discharge permits. Moreover, it explained that the Regional Board’s role in state water law is to regulate water quality by ensuring the state’s waters are sufficiently free of pollutants to be safe for their intended uses—a role which does not include regulation of wasteful or unreasonable use of water. The court stated that nothing in the Water Code delegates the Regional Board powers to adjudicate and regulate functions of the state in the field of water resources or to take all appropriate proceedings or actions to prevent waste and unreasonable use of water, as it delegates to the State Board.

The court rejected petitioner’s argument that article X, section 2 applies to all government actors, including the Regional Board. It explained that while an action could be brought against anybody for wasting water, petitioner’s claims did not allege that the Regional Board was wasting water, but rather, failed to prevent the POTWs from wasting water, and nothing in article X, section 2 or the Water Code empowers the Regional Board to prevent unreasonable use of water.

The Court of Appeal did not need to reach the issue of whether the State Board has a duty to prevent unreasonable use of water because it concluded that petitioner failed to adequately plead a cause of action against the State Board. It nonetheless explained that the provisions in the California Constitution and the Water Code requiring the State Board to prevent the waste of water are highly discretionary and do not require the State Board to prevent all waste, nor do they dictate how to prevent waste. Therefore, these provisions cannot be read to restrict the State Board’s discretion as to whether to direct its resources towards one method of conservation in its portfolio over another.

CEQA

The Court of Appeal held that Public Resources Code section 21002 does not apply to wastewater discharge permits and, accordingly, the Regional Board is not required to make findings as to whether a project has significant and unavoidable impacts, and whether there are feasible alternatives or mitigation measures that would substantially lessen those impacts.

The appellate court rejected petitioner’s argument that section 21002 imposes environmental review requirements independent of CEQA’s environmental impact report (EIR) procedures from which the wastewater discharge permits are exempt under Water Code section 13389. The court explained that section 21002 does not impose requirements separate from the EIR process; it only has force to the extent an entity is otherwise obligated to prepare an EIR. The court based its reasoning in the language of sections 21002, 21002.1, and 21082, all of which confirm that the EIR is the means by which the agency satisfies the policies articulated in 21002.

The appellate court also rejected petitioner’s argument that an agency can comply with section 21002 by means other than an EIR, and that the Regional Board can comply with this section by using the information and analysis it collects and performs in the normal course of permit approvals. The court explained that it will not read section 21002 to impose such requirements when the Legislature has not specified any means to carry out those requirements apart from an EIR, as there would be no way for a court to evaluate whether the Regional Board’s efforts were sufficient. The court concluded that the Legislature has opted to govern environmental review in this context through the wastewater discharging process by exempting the Regional Board from an EIR requirement.

The court accordingly did not need to reach the broader question of whether Water Code section 13389 provides a complete exemption from CEQA.

– Veronika S. Morrison

THIRD DISTRICT UPHOLDS EIR FOR THE RELICENSING OF OROVILLE DAM FACILITIES

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In County of Butte v. Department of Water Resources (2023) 306 Cal.Rptr.3d 860, the Third District Court of Appeal rejected all challenges regarding the sufficiency of the Department of Water Resources’ EIR for the relicensing of the hydropower facilities at the Oroville Dam.

Background

Prior to the expiration of the Oroville Facilities licensing, DWR began the process for renewal—opting to engage the alternative licensing process (ALP) authorized by the Federal Energy Regulatory Commission (FERC), which allowed DWR to develop a settlement agreement addressing stakeholders’ concerns that effectively functions as a first draft of the FERC license. The Counties of Butte and Plumas are the only two stakeholders that did not sign the agreement.

FERC subsequently prepared an Environmental Impact Statement pursuant to NEPA, and DWR prepared an EIR under CEQA. DWR certified the EIR and approved the settlement agreement in 2008.

Several counties—Butte County, Plumas County, and the Plumas County Flood Control and Water Conservation District—filed writ petitions challenging the sufficiency of DWR’s EIR in 2008. The trial court ruled in favor of DWR. On appeal, the Third District found that the CEQA claims were largely preempted by the Federal Powers Act. The California Supreme Court vacated the Third District’s decision, and instead asked it to reconsider the claims in light of the holding in Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677.

On remand, the Court of Appeal reaffirmed its previous decision, concluding—once again—that the Counties’ CEQA claims were preempted by the Federal Power Act. The California Supreme Court again granted the Counties’ petition for review on the preemption issue in County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612. The Court ultimately reversed the Third District’s decision in part, and remanded it so that the appellate court could consider several challenges to the sufficiency of DWR’s EIR.

The Third District’s Decision

Climate Change Analysis & Impacts

The Third District rejected all challenges to the EIR’s discussion of climate change. It explained that the EIR sufficiently acknowledged climate change and its potential impacts on project operations, and that it was reasonable for DWR to conclude that the impacts were too speculative to analyze in more detail. In reaching this conclusion, the court rejected the Counties’ argument that DWR failed to disclose scientific authorities contrary to its findings, as none of the Counties’ cited authorities that undermined the EIR’s finding of uncertainty. Moreover, the EIR generally acknowledged the potential impacts of climate change. The court took issue with the fact that the Counties did not refute DWR’s stated inability to offer more specific predictions on climate change, or show that DWR overlooked other available information.

Historic Hydrologic Conditions

The court also rejected the Counties’ arguments that DWR failed to model project operations using the full range of 20th-century hydrologic conditions by omitting data from 1907 and 1977.

The court explained that consideration of the whole EIR shows that DWR’s actual modeling results covered all hydrological data from 1922 to 1994—including historic low flow data from 1977. The court agreed with the Counties that DWR did not account for the historical high flow data in 1907 in its modeling, but concluded that the Counties failed to explain why that was a fatal flaw when considering the totality of the EIR’s findings. Lastly, the court held that the Counties’ argument that the project’s operations were improperly modeled using hypothetical flow data lacked merit, as the record showed that DWR’s modeling was based on historical, not hypothetical, data.

Fiscal Impacts

The court rejected the Counties’ claim that DWR failed to properly evaluate and mitigate fiscal impacts to Butte County that would result from increased demand for public services. The court explained that, under CEQA, a lead agency is not required to discuss economic effects that do not cause, or are unrelated to, a physical change in the environment. The Counties’ two arguments that attempted to establish this connection—including a vague assertion that the fiscal impacts are tied to “the project’s environmental impacts,” and that the project would trigger the need for new or expanded government facilities to provide public services—did not persuade the court.

Public Health Impacts

The court rejected the Counties’ argument that the EIR failed to adequately evaluate the public health impacts to those who consume fish with high mercury levels, which would result from an increase in sportfishing opportunities created by the project. The court held that it was not necessary for DWR to survey everyone who fishes in the area to understand their diets, nor quantify the amount of mercury in their diets, as the Counties contended DWR should have done. The court pointed to evidence in the record that showed the Office of Environmental Health Hazards Assessment (OEHHA) found no recorded incidences of mercury-related health effects from consuming sport fish in California. OEHHA evidence also established that there is a consuming California sport fish that are subject to advisories carries a low potential risk, unless consumption exceeds recommended rates. Nevertheless, the proposed project still included measures to educate and notify the public of safe consumption limits.

The court also found that the EIR properly concluded that potential impacts from fecal coliform bacteria resulting from recreational uses and waterfowl would be less than significant because a project condition would develop a monitoring and public education program related to bacteria. The court dismissed the Counties’ remaining arguments challenging the EIR’s bacteria impact analysis as flawed for a myriad of reasons, including its failure to adequately describe alleged inconsistencies, its failure to cite supporting evidence, and its misreading record evidence.

Water Quality & Beneficial Use

The court was unpersuaded by the Counties’ challenge to the EIR’s discussion of water quality and designated beneficial uses within the Project area.

First, the Counties claimed that the project objective to continue the operation and maintenance of the Oroville Facilities for electric power generation wrongly excluded any serious consideration of how the project might operate differently in the next half century. The Counties maintained that the objective wrongly assumed that project conditions are sufficiently rigorous to meet existing environmental protection commitments. The court rejected these claims outright, finding them unexplained and unsubstantiated.

Second, the court found that the EIR’s discussion of the environmental setting was appropriate and did not, as the Counties asserted, wrongly assume that current operations comply with water quality standards. The court explained that, despite the EIR’s occasional use of unnecessary qualifiers in describing the Basin Plan’s objectives, it was clear that compliance with the Plan was necessary and the EIR explicitly disclosed that temperature exceedances do occur. The court also found that the project does not show exceedances of Basin Plan objectives for phosphorous, and that the Counties failed to reveal where alleged exceedances for metals other than mercury occurred. Lastly, the court explained that the EIR did not fail to discuss potential impacts to beneficial uses; the Counties failed to identify any alleged failures that affect beneficial uses, and premised their argument on a misreading of the record by claiming that high temperatures in two distinct areas will somehow cause high temperatures in the separate fish hatchery area.

Third, the court concluded that the Counties again misrepresented the record and failed to explain their argument in alleging that the EIR’s “No Project Alternative” wrongly assumed future compliance with water quality standards and beneficial use requirements. The court held that DWR directly responded to comments concerning potentially conflicting findings regarding water temperature under the No Project Alternative. The responses explained that it is not inconsistent to conclude that the water temperatures generally comply with established criteria and that pre-spawning adult salmonids further downstream may be exposed to elevated water temperatures because the water temperature compliance point is located upstream of that portion of the river. Moreover, the court disregarded the Counties’ allegation that DWR failed to address its own prediction that water demand would rise, as they failed to cite supporting record evidence.

Fourth, the court rejected the Counties’ argument that the EIR’s wrongful assertion of existing compliance allowed DWR to evade proof that future Project operations will protect water quality and beneficial uses, as the Counties failed to establish the premise that the EIR assumed compliance. The court reiterated that the EIR expressly disclosed that exceedances of Basin Plan standards have occurred.

Finally, the Counties’ assertion that the EIR should have considered mitigation measures and alternatives to address certain impacts also failed. The court explained that the Counties did not describe the alleged “formidable challenges” to meeting beneficial use objectives in the future that the EIR should have acknowledged. Assuming that these challenges alluded to climate change, the court reiterated prior reasoning on the subject.

The court also found that the Counties did not provide evidence to support their argument that the EIR failed to acknowledge that DWR might need to increase its water releases to protect the Delta smelt, thus reducing reservoir levels below those needed to maintain cold water for salmon in the reservoirs. Finally, the court determined that the Counties mischaracterized the record in arguing that DWR offered conflicting comments about a future biological opinion that could affect State Water Project operations, as DWR was discussing two distinct biological opinions and it properly addressed both.

State Water Project

The court rejected the Counties’ claim that the EIR failed to account for potential changes to the State Water Project that could affect project operations.

The court concluded that DWR sufficiently responded to comments that the EIR should account for future changes in regulatory requirements, including any changes pursuant to the forthcoming new biological opinions prepared for the State Water Project by the U.S. Fish and Wildlife Service and the National Marine Fisheries Service. The EIR specifically recounted each of the release requirements that would be unaffected by the new biological opinions. The court concluded that DWR could not—and thus was not required to—predict the content of the forthcoming biological opinions and resolve potential issues with unknown terms.

The court also rejected the Counties’ argument that the undefined term “normal operation” in the settlement agreement would cause issues regarding what version of “normal” would govern release reductions. The court presumed that it was an attempt to unwind the settlement agreement, which must fail under the Supreme Court’s previous ruling that the Counties cannot challenge the environmental sufficiency of the settlement agreement nor seek to unwind it.

Lastly, the court found that DWR adequately responded to comments regarding the impact of the State Water Project on operations of the Project, and that the EIR did not—as the Counties asserted—find that the Project and the State Water Project are analytically distinct. Rather, the court determined that the EIR confirmed that the Project and the State Water Project are not analytically distinct, and that the response appropriately concluded that unforeseeable changes to State Water Project operations could not be studied in the EIR and that future material changes to State Water Project operations would be subject to a separate environmental review if outside current authorizations.

Record Costs

Separately, the court determined that the trial court did not abuse its discretion in directing the Counties to pay $675,087 to DWR to prepare the 327,2610-page administrative record. The court found that the cost was reasonable given the complexity of this case compared to typical CEQA cases. The court therefore refused to indulge the Counties’ numerous arguments that purported to demonstrate that the cost was too high—including an assertion that CEQA Guidelines section 15094 requires an agency to prepare the record and bear the costs, to a claim that DWR purposefully ran up the costs because it “disliked” the Counties. The court found no support for any of these arguments.

 

FIRST DISTRICT UPHOLDS EIR FOR OAKLAND A’S BASEBALL STADIUM, WITH EXCEPTION OF IMPROPERLY DEFERRED WIND MITIGATION MEASURE

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In East Oakland Stadium Alliance v. City of Oakland (2023) 89 Cal.App.5th 1226, the First District Court of Appeal considered a challenge to the City of Oakland’s EIR for the new Oakland A’s new baseball stadium and adjoining development at the Port of Oakland’s Howard Terminal. The court upheld the EIR, but for finding that it improperly deferred mitigation for wind impacts caused by the Project.

Background

The Oakland A’s proposed developing a new 35,000-seat ballpark with adjacent residential and commercial uses, on a 50-acre site largely used for truck parking and container storage at Howard Terminal in the Port of Oakland.

The City of Oakland prepared and certified an EIR and adopted a statement of overriding considerations. The project approved by the City was identified as “Alternative 3” in the EIR, which included a grade-separated vehicle crossing over the railroad tracks adjacent to the site.

East Oakland Stadium Alliance (EOSA), Capitol Corridor Joint Powers Authority (CCJPA), and Union Pacific Railroad (UPR) filed writ petitions challenging the EIR. The Alameda County Superior Court found the EIR adequate on all accounts, with the exception of one wind mitigation measure that the court found to lack an adequate performance standard.

Only EOSA appealed. The City and the A’s cross-appealed. On appeal, EOSA raised arguments related to potential impacts from the adjacent railroad, displacement of current activities at the project site, air quality, GHG emissions, hazardous materials, and cumulative impacts. On cross-appeal, the City and the A’s argued that the wind mitigation measure was not improperly deferred.

The Court of Appeal’s Opinion

Railroad Impacts

The project sits adjacent to at-grade railroad tracks running down the center of a major street separating downtown Oakland from the waterfront. The City adopted a suite of mitigation measures to reduce potential impacts resulting from safety hazards for people visiting the ballpark, but concluded that the project would still have significant and unavoidable rail impacts.

EOSA challenged the mitigation measures on several grounds. First, it argued a measure requiring fencing on both sides of the track was infeasible because UPR had indicated that the City could not use the railroad right-of-way for a pedestrian pathway. Rejecting this argument, the court noted that even if UPR had an exclusive right-of way, the fence itself could still be installed and this would produce the desired effect of preventing pedestrians from crossing the tracks.

EOSA also argued that a pedestrian overcrossing required by the mitigation measures would not be effective due to its proposed location. The court disagreed, pointing to the EIR’s conclusion that the overpass would divert some, but not all, visitors from using at-grade crossings. This, coupled with the City’s acknowledgment in the statement of overriding considerations that the potential hazards could not be fully mitigated, constituted substantial evidence to support the City’s conclusions.

Finally, EOSA argued that the EIR failed to adequately consider mitigation that would require the temporary closure of at-grade crossing during ballgames and other events. The court determined, however, that EOSA had not exhausted its administrative remedies on this claim. Although EOSA submitted lengthy comments that the EIR should have considered permanently closing at-grade crossing, and only briefly mentioned potential temporary closures in passing, under a heading and buried in a paragraph that was unrelated to the topic. The court held that was not enough to fairly apprise the City of this issue, thus rendering it unexhausted and ineligible for judicial review.

Air Quality

The EIR’s air quality analysis assumed the project would require emergency generators to run for 50 hours per year, including for testing and maintenance. EOSA argued that the EIR was instead required to assume 100 hours of annual generator use, on top of testing and maintenance, based on guidance from the Bay Area Air Quality Management District (BAAQMD). The City countered that the EIR only needed to assess reasonable consequences, and 100 hours of generator use was not a reasonable assumption. This conclusion, the court held, was supported by substantial evidence. The court noted that the BAAQMD guidance applies across the entire Bay Area, which includes places designated “high fire risk,” but the project area is not so designated; therefore, it would not be reasonably foreseeable to assume the project would use emergency generators for 100 hours per year. The City also adopted a mitigation measure restricting testing and maintenance to 20 hours per year, which allowed for a 30-hour “buffer” for actual emergency use.

GHG Emissions

EOSA argued that the City improperly deferred mitigation for GHG emissions, and that “no net increase” in GHG emissions was not an appropriate performance standard. The court again disagreed, finding the measure met each of the requirements in CEQA Guidelines section 15126.4, subdivision (a)(1)(B). The court held that the City unquestionably committed to the mitigation because it prohibited approval of any permit allowing the project to proceed prior to preparation of a GHG mitigation plan. The court held that “no net additional GHG emissions” was an appropriate performance standard, and that the mitigation identified both a series of measures that must be incorporated into the plan, along with a five-page list of possible measures that could be implemented to meet the standard. The court concluded that the mitigation was therefore adequate.

Cumulative Impacts

EOSA also argued that the EIR was deficient because it did not include a possible expansion of the Port’s turning basin in the cumulative impacts analysis. When the EIR was prepared, however, the Port and the U.S. Army Corps of Engineers had only undertaken a feasibility study for the potential project. The court rejected EOSA’s argument that the feasibility study rendered the expansion a “probable future project” for which cumulative impacts must be analyzed. Because there was not yet a relatively complete plan of action and there were no details sufficiently certain to allow for meaningful analysis, the EIR was not required to include the potential turning basin expansion in its cumulative impact analysis.

Adequacy of Analysis

EOSA next argued that the EIR’s analysis of Alternative 3 did not include sufficient detail to support the City approval of the alternative. The City argued that the court need not reach this argument because EOSA again failed to exhaust its administrative remedies. EOSA countered that it was not required to exhaust this claim because it related to the City’s findings, and not the EIR itself. The court disagreed. According to the court, Alternative 3 was the iteration of the project that the City ultimately approved—thus, if EOSA could frame an argument as a “challenge the City’s findings” instead of as a “challenge to the EIR” in order to avoid CEQA’s exhaustion requirement, then doing so would allow any challenge to the adequacy of an EIR to be raised without exhausting. This, in turn, would improperly circumvent the procedural requirements of CEQA.

Wind

The court rejected the City and the A’s cross-appeal and upheld the trial court’s grant of the petition with respect to the wind mitigation measure. The EIR concluded that the project will have significant and unavoidable wind impacts because of tunneling effects created by the construction of tall buildings. The City adopted a mitigation measure that required a wind tunnel analysis for buildings that exceed 100 feet, and required the A’s to work with a wind consultant to identify mitigation strategies to prevent, to the extent feasible, additional exceedances of the City wind threshold, without unduly restricting development potential.

The court concluded that this measure improperly deferred mitigation under CEQA Guidelines section 15126.4, subdivision (a)(1)(B). The court held that the measure did not include a specific performance standard, but instead provided a “goal.” Specifically, the measure improperly allowed for balancing (i) reduced impacts to the maximum extent feasible, and (ii) refraining from unduly restricting development potential, without informing the public where that balance would be struck. The measure also did not define “unduly” or “development potential.” And with the exception of mentioning a few possible design changes, the measure did not identify the types of potential actions that could feasibly achieve the performance standard. The court also concluded that the adoption of a statement of overriding considerations did not relieve the City of its obligation to include a specific performance standard. For all of these reasons, the court held, the measure improperly deferred mitigating the project’s wind impacts.

SECOND DISTRICT UPHOLDS CITY OF LOS ANGELES’ RELIANCE ON INFILL CEQA EXEMPTION FOR APPROVAL OF ELDERCARE FACILITY, REJECTS LOCAL ZONING AND COASTAL ACT CLAIMS

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In Pacific Palisades Residents Association, Inc. v. City of Los Angeles (2023) 88 Cal.App.5th 1338, the Second District Court of Appeal denied a neighborhood group’s challenge to a proposed eldercare facility under local zoning laws, the California Environmental Quality Act (CEQA), and the California Coastal Act.

Background

The project applicant proposed constructing an eldercare facility on a vacant one-acre lot surrounded by both residential and commercial uses in Pacific Palisades. The lot, located about two and a half miles from the coast, within the coastal zone, had been zoned for commercial use since 1978 and, at the time of the lawsuit, consisted of bare flat dirt behind a chain link fence. The proposed facility included 82 residential rooms and a public bistro housed in a building that would be one story higher than the tallest nearby structure.

The City of Los Angeles undertook an extensive review process, which consisted of multiple public hearings and opportunities for public comment. The City’s Zoning Administrator, Planning Commission, Planning and Land Use Management Committee, and City Council all concluded that the project complied with the zoning code and was exempt from CEQA pursuant to the Class 32 exemption for infill development. The City Council issued a Coastal Development Permit and approved the project.

A group of neighbors acting as the Pacific Palisades Residents Association filed a petition for writ of mandate against the City and the Coastal Commission, challenging the project approval under the City’s zoning code, the Coastal Act, and CEQA.

The trial court denied the petition. Petitioner appealed.

Court of Appeal

Los Angeles Zoning Code

The court denied Petitioner’s claims under the City’s zoning code. Petitioner argued that the facility was larger than what was permitted under the code, but the court explained that the “plain English interpretation of the zoning code” foreclosed any argument that the facility was not permitted on the lot.

Request for Judicial Notice

In its arguments arising under the zoning code, Petitioner relied, in part, on extra-record evidence that was not presented to the trial court. Petitioner sought judicial notice of the additional evidence on two grounds, both of which were rejected by the court. First, Petitioner argued that the evidence was admissible because the City had raised an “incorrect” interpretation of its zoning code at trial, requiring additional research by appellant. The court disagreed, because “the neighbors’ time to research this trial issue was before or during trial”; Petitioner could not introduce the evidence for the first time on appeal. Second, Petitioner argued that extra-record evidence was admissible to resolve a future issue to avoid the need for a separate appeal of post-judgment matters. The court, however, declined this “unprecedented invitation to attempt to moot a future appeal in the name of judicial economy.”

CEQA

With respect to CEQA, Petitioner argued that the Class 32 exemption did not apply because the proposed project was not architecturally compatible with the neighborhood and would impact views. The court explained that these “aesthetic judgments” are subjective findings that are appropriately reviewed for substantial evidence. As a result, the court was required to defer to the City’s aesthetic determinations so long as a reasonable person could have reached the same conclusions. Here, the court held, the City’s decision that the project was compatible with local plans was “eminently reasonable” because the neighborhood had been a subdivision of Los Angeles for decades and the area was not undeveloped seashores or wilderness. The court therefore upheld the City’s application of the Class 32 CEQA exemption.

Coastal Act

The City issued a Coastal Development Permit pursuant to section 30600, subdivision (b) of the Coastal Act. Petitioner filed an appeal with the Coastal Commission, which determined that the appeal did not raise a “substantial issue.” Again applying a deferential standard of review, the court explained that it is for the Commission, not the court, to weigh conflicting evidence. Petitioner offered evidence in support of its complaints about the project, but it failed to show that the Commission’s decision was unsupported by substantial evidence. Thus, the court rejected Petitioner’s challenge.

– Elizabeth Pollock

SECOND DISTRICT UPHOLDS CLASS 1 EXEMPTION FOR PROJECT TO EXPAND SINGLE-FAMILY HOME

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In Arcadians for Environmental Preservation v. City of Arcadia (2023) 88 Cal.App.5th 418, the Second District Court of Appeal upheld a finding by the City of Arcadia that a project to expand and add a second story to a single-family home was categorically exempt from CEQA. In doing so, the court concluded that petitioner failed to exhaust its administrative remedies regarding the scope of the exemption and failed to demonstrate that the city improperly relied on the exemption.

Background

Over a nearly two-year period beginning in June 2018, project applicant submitted, revised, and re-submitted an application to her homeowners’ association (HOA), seeking to expand the first floor of her single-family home and add a second floor. In April 2020, after the HOA’s architectural review board twice rejected her project, the applicant appealed the rejection to the city’s planning commission.

In May 2020, after a noticed hearing, the planning commission voted to conditionally approve the project, so long as various proposed changes were incorporated. The planning commission found that the project qualified for a Class 1 categorical exemption for modifications to existing structures.

The applicant’s neighbor appealed the planning commission’s approval to the city council. The city council upheld the planning commission’s decision.

The neighbor then formed the petitioner organization and filed a petition for writ of mandate challenging the city’s compliance with CEQA. Shortly thereafter, the city filed a Notice of Exemption for the project. The trial court denied the petition. Petitioner appealed.

Court of Appeal’s Decision

The court held that (1) petitioner failed to exhaust its administrative remedies on the issue of whether the project was within the scope of the Class 1 exemption, (2) the city did not abuse its discretion by impliedly determining that no exceptions to the categorical exemption applied, and (3) petitioner failed to demonstrate that the cumulative impacts exception precluded the city’s reliance on the Class 1 exemption.

Failure to Adequately Exhaust

Petitioner argued that the city erred in determining the Class 1 exemption applied and cited the neighbor’s comments during his administrative appeal as support that petitioner had adequately exhausted on this issue. The court disagreed, reasoning that the neighbor (or anyone else) failed to articulate why the Class 1 exemption was inapplicable. Instead, the court noted that the neighbor made only “general references to potential environmental impacts” that did not fairly apprise the city of petitioner’s specific objection that the exemption did not apply.

The court rejected petitioner’s argument that its member had impliedly objected to the city’s exemption finding by requesting an EIR. The court conceded that a request for an EIR suggests a belief that no exemption applies but explained that such a request nevertheless does not adequately notify the agency about the substance of the challenge.

The court acknowledged that CEQA’s exhaustion requirement may be excused if the agency provides no opportunity for public comment or fails to give notice; however, it concluded that petitioner’s failure to exhaust was not excused in this case. Although the city did not consistently identify the specific subdivision of the Class 1 exemption that it relied on, the court concluded that this discrepancy was immaterial.

Exceptions to the Exemption

The court next rejected petitioner’s argument that the city failed to proceed in a manner required by law by failing to expressly consider whether an exception precluded the application of the Class 1 exemption. The court explained that the city’s determination that the Class 1 exemption applied necessarily included an implied finding that no exception precluded its application. The court reasoned that, while the city could not ignore contrary record evidence when making its finding, the finding did not need to be express.

After noting that there was “some question” whether petitioner’s comments during the administrative appeal preserved an argument that the cumulative impacts exception precluded the application of the Class 1 exemption, the court concluded that, regardless, that the argument failed on its merits.

The court concluded that petitioner’s general reference to “cumulative environmental effects caused by multiple large-scale projects,” along with identification of various nearby projects, did not amount to evidence of actual impacts that would result from the project and other nearby projects. The court rejected petitioner’s evidence that the cumulative impacts exception applied as “pure speculation” that could not, without more, preclude application of the Class 1 exemption.

Louisa Rogers

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