Governor Brown Orders Aggressive New Target for Greenhouse Gas Emissions

On April 29, 2015, Governor Brown issued Executive Order B-30-15 setting an interim target to cut California’s greenhouse gas emissions to 40 percent below 1990 levels by 2030. According to the Governor’s announcement, California is on track to meet or exceed its current target of reducing GHG emissions to 1990 levels by 2020, as required by the California Global Warming Solutions Act of 2006 (AB 32). The new goal of reducing emissions to 40 percent below 1990 levels by 2030 is intended to help the state achieve its ultimate goal of reducing emissions 90 percent under 1990 levels by 2050, a target established by Governor Schwarzenegger’s Executive Order S-3-05. The new interim target is consistent with the recommendation of the California Air Resources Board, in its First Update to the Climate Change Scoping Plan (May 2014).

The new executive order requires the Air Resources Board to update the Climate Change Scoping Plan to express the 2030 target in terms of million metric tons of carbon dioxide equivalent. All state agencies with jurisdiction over GHG emission sources must implement measures to achieve the 2030 and 2050 targets.

In addition, the Natural Resources Agency is to update the state’s climate adaptation strategy, Safeguarding California,  every three years and ensure that its provisions are fully implemented. The Safeguarding California plan will help California adapt to climate change by identifying vulnerabilities by sector (e.g., vulnerabilities to the water supply, the energy grid, the transportation network, etc.); outlining primary risks of these vulnerabilities to people, property, and natural resources; specifying priority actions needed to reduce the risks; and identifying lead agencies to spearhead the adaption efforts for each sector. Each sector will then be responsible to prepare an implementation plan by September of this year outlining adaptation actions and report back to the Natural Resources Agency by June 2016 on the actions taken.

Brown’s executive order also requires state agencies to take climate change into account of their planning and investment decisions, and employ full life-cycle cost accounting to evaluate investments and alternatives. The order establishes principles that state agencies must use in making planning and investing decisions. These principles include: prioritizing actions that both help the state prepare for climate change and reduce GHG emissions; implementing flexible and adaptive approaches, where possible, to prepare for uncertain climate change impacts; protecting the state’s most vulnerable populations; and prioritizing natural infrastructure solutions.

Executive Order B-30-15 follows relatively swiftly on the heels of Executive Order B-29-15, issued earlier this month, which imposes a 25-percent mandatory water reduction in 2015 over 2013 usage for urban areas, commercial, industrial, and institutional properties, along with other restrictions.

Wild Fish Conservancy’s Challenge to Federal Government’s Water Diversions in Columbia River Basin Dismissed by Ninth Circuit Court of Appeals Panel

The Ninth Circuit Court of Appeals dismissed an action by the Wild Fish Conservancy, which claimed the federal government was improperly diverting water needed by native fish populations to a Washington fish hatchery. In Wild Fish Conservancy v. Jewell, Case No. 10-35303 (Sept. 11, 2013), the three-judge panel ruled the Conservancy lacked prudential standing to bring one of its claims under the Administrative Procedure Act (APA). The court also ruled it lacked jurisdiction to consider the Conservancy’s two other related claims.

The Wild Fish Conservancy is a nonprofit based in Duvall, Washington. The dispute arose over waters being diverted from Icicle Creek, a tributary of the Wenatchee River, which is a tributary of the Columbia River. During certain times of year, federal officials divert water from Icicle Creek to serve the Leavenworth National Fish Hatchery. The diversions cause a segment of Icicle Creek to become significantly and sometimes entirely “dewatered.” This prevents fish from swimming up the channel to spawning grounds above the hatchery.

The Conservancy sued the U.S. Department of the Interior and other federal officials over the diversions. The United States District Court for the Eastern District of Washington granted summary judgment in favor of the hatchery officials. The Conservancy appealed.

The Conservancy’s first claim involved an APA challenge alleging the federal defendants are violating section 8 of the Reclamation Act of 1902 (43 U.S.C. § 383) by diverting water from Icicle Creek without a state permit under Washington’s water code. The APA requires a plaintiff to demonstrate not only constitutional standing, but also prudential standing, which the Ninth Circuit panel described as “an interest ‘arguably within the zone of interests to be protected or regulated by the statute . . . in question.’ [Citations.]” The Conservancy argued that an APA plaintiff generally need not show a property right in litigation to demonstrate prudential standing. The Court said this was correct. Section 8 of the Reclamation Act, however, ensures that federal reclamation projects within state borders do not interfere with a state’s sovereign authority to regulate the appropriation or use of state waters or the protected property interests of parties with vested water rights under state law. Because the Conservancy lacked enforcement rights under Washington law, the court held it lacked prudential standing to bring its claim.

The Conservancy also claimed the federal defendants violated Washington’s fishway law by failing to submit fishway plans to the state and failing to properly maintain fishways across hatchery structures. The court held that it lacked jurisdiction to hear this claim because the requirements were not incorporated into section 8 of the Reclamation Act. Finally the Conservancy claimed that federal officials failed to supply hatchery fishways with adequate water in violation of the Reclamation Act. Here too, the court ruled it lacked jurisdiction because the claim did not challenge a final agency action and thus was not reviewable under the APA.

This opinion contained an element not often found in judicial opinions: An illustration showing Icicle Creek, related channels and tributaries, and the diversion and intake structures serving the hatchery.

Although the court did not address the merits, the author, Circuit Judge Sidney R. Thomas, took note of the historic backdrop and conflicting issues represented by the case. He opened the opinion by briefly capturing the history of a river basin where modern engineering had transformed it into “the most hydroelectrically developed river system in the world” while also helping to reduce native salmon and steelhead populations “from levels of mythic abundance to the brink of extinction.”

Before concluding, he highlighted the “nuanced” nature of this particular dispute: “As we have often acknowledged, ‘[s]almon and hydropower are the two great natural resources of the Columbia River Basin,’ and ardent desires to promote one or the other have yielded a century of conflict. [Citation.] This iteration does not present the ‘classic struggle between environmental and energy interests,’ [citation], but instead a more nuanced conflict between two entities seeking to repair the damage that dams have done to the Basin’s fisheries. Unlike the many cases we have decided concerning the fate of fish in the Columbia River Basin, the claims before us are not susceptible to federal judicial review.”

(Written by Deb Kollars)

Legislature Overwhelmingly Approves New CEQA Legislation With Two Aims: Limited Streamlining of California’s Premier Environmental Law and Fast-Tracking a New Sacramento Arena

On the final night of this year’s legislative session, Senate President Pro Tem Darrell Steinberg won approval in both houses for Senate Bill 743. The bill contains limited reforms to the California Environmental Quality Act and would help expedite Sacramento’s new sports arena. Support for the bill, which now goes to the Governor, was overwhelming. The Assembly voted 55 to 6 in favor, the Senate 32 to 5.

The successful legislation marks the convergence of two Steinberg CEQA bills. SB 743 originally was designed to shorten the process for handling CEQA lawsuits expected to be brought against the new Sacramento Entertainment and Sports Complex, which the City of Sacramento and the Sacramento Kings are planning to build in downtown Sacramento. Steinberg’s other bill, SB 731, was originally conceived as a broad overhaul of CEQA. It faced a rocky path as the business sector, environmental community and labor unions fought over its contents. Near the very end of the legislative session, Steinberg moved several elements from SB 731 into SB 743, while converting SB 731 into a two-year bill. Passage of the merged bill came after a series of final negotiations the evening of September 12, 2013.

Fast-tracking the Arena

Under SB 743, injunctive relief to stop construction of the planned arena in downtown Sacramento could be granted only if a court found a danger to public health and safety, or an impact on Native American archaeological grounds.  The legislation also would allow any necessary eminent domain proceedings involving the specific arena site at 545 and 600 K Street (currently a Macy’s store) to proceed concurrently with the CEQA process.

New CEQA Provisions

In addition, the bill as amended adds a new chapter to the CEQA statute, commencing with new Section 21099.  It is titled “Modernization of Transportation Analysis for Transit-Oriented Infill Projects.”

One provision would remove parking and aesthetics standards as grounds for legal challenges against project developments in urban infill areas within transit priority areas for residential, mixed-use residential, or “employment center” projects. These standards often are used in litigation to slow or stop new development. An employment center project is defined as being located within a transit priority area on property zoned for commercial uses with a floor area ratio of no less than 0.75. In an interesting nuance, the legislation states that, for purposes of this section, “aesthetic impacts do not include impacts on historical or cultural resources.” Thus, the prohibition on concern under CEQA with aesthetic impacts under the bill must not translate into a disregard for adverse effects on historical or cultural resources.

This new section also seeks to modernize the statewide measurements against which traffic impacts are assessed and resolved within transit priority areas. It does so by authorizing the Governor’s Office of Planning and Research (OPR) to recommend CEQA Guidelines amendments that in transit priority areas would shift CEQA analysis away from traditional standards based on congestion levels at intersections and require it to rely instead on new measures to analyze an infill project’s actual reduction in car usage because of its proximity to jobs, retail, and mass transit options.

More specifically, the legislation directs OPR to prepare revisions to the CEQA Guidelines establishing criteria for determining the significance of transportation impacts of projects within such transit priority areas. These new guidelines would include recommendations for metrics to measure transportation impacts that may include vehicle miles traveled, vehicle miles traveled per capita, automobile trip generation rates, or automobile trips generated. Once the revised guidelines are adopted, automobile delay – as described by “Levels of Service” or similar measures of congestion – would not be considered a significant impact on the environment within transit priority areas. Receiving OPR’s guidance for alternative measures of traffic impacts may help preclude the argument that any small increment of new traffic being added to already severely congested intersections is a significant impact. For infill projects with nearby transit options, these measures may enable traffic consultants to show that locating residential or mixed-use projects in such areas actually reduces vehicle miles traveled or new trip generation.

Not included in SB 743 were many provisions that the development community sought to streamline CEQA processes and to reduce the existing potential for significant delays in litigation.

(Written by Deb Kollars)

Third District Court of Appeal Explains Why State Water Resources Control Board Has Authority to Determine Whether or Not It Has Authority Over Water Diversions

Finding the issue to be of “continuing public interest and importance,” the Third District Court of Appeal ruled in Young et al. v. State Water Resources Control Board, ___Cal.App.4th ___ (Sep. 4, 2013, Case No. C068559), that the State Water Resources Control Board (the “Board”) has jurisdiction under the Water Code to determine whether or not a diverter’s use of water is – or is not – exempt from the Board’s regulatory authority.  Such a determination by the Board (as opposed to by a court in a lawsuit) is an integral part of the state’s legislatively created water rights permitting system, and the court found that plaintiffs’ claim that the Board lacked authority to adjudicate the underlying jurisdictional issue because they were exempt from regulation was “flawed” because it “. . . beg[ged] the question central to the appeal . . . .”   The court was clear that where a water user claims to be exempt from Board regulation, the Board gets first crack at the question.  If the water user disagrees with the Board’s determination, the water user must seek subsequent judicial review.

The underlying dispute arose in 2009, when a group of South-of-Delta (i.e., upstream on the San Joaquin River and its tributaries) irrigation districts, conscious of their own flow obligations under the Board’s orders for maintaining fresh water in the Delta, questioned whether or not private in-Delta irrigation companies were illegally diverting water from Delta channels.  The Board responded with a number of draft cease and desist orders and hearing schedules, including one directed to the irrigation company from which plaintiffs receive their water.  Plaintiffs responded with claims of riparian or pre-1914 rights.

A “riparian” water right is the right of a user to take water out of a stream and apply it to the user’s land that abuts the stream.  An “appropriative” water right involves the diversion of water from a stream for use on land that doesn’t abut the stream itself.  When the Legislature enacted the Water Commission Act of 1913 to begin regulating water use in California, riparian use and already-established appropriations (“pre-1914 rights”) were excluded from the new permitting process.   When as part of the cease and desist order process the Board asked plaintiffs’ irrigation company to prove the nature of its rights, plaintiffs and the company argued that their rights were riparian or pre-1914, and that, therefore, the Board lacked jurisdiction to ask for evidence concerning even this threshold question.  Plaintiffs argued that the Board was required to first file a lawsuit against their company and them, and to convince a court that their rights were other than riparian or pre-1914.

The Board relied upon its cease and desist order powers under Water Code section 1831.  Plaintiffs argued that a provision in that section that specified that the Board no authority to regulate diversions “not otherwise subject to . . . regulation” meant that the Board lacked authority to determine even the threshold question of whether or not their use was subject to Board regulation.  Citing two California Supreme Court decisions that predated section 1831 but dealt with the Board’s investigative and permitting powers (Meridian, Ltd. v. San Francisco [1939] 13 Cal.2d 424, and Temescal Water Co. v. Dept. of Public Works [1955] 44 Cal.2d 90), the court found that the Legislature had expressly vested in the Board the authority “to determine if any person is unlawfully diverting water . . .,” and that it was a necessary part of that authority that the Board determine whether or not the use in question was riparian or pre-1914.

The importance of this decision:  If it were necessary for the Board to first file a lawsuit for a court determination of a user’s rights, the Board would in all likelihood have the burden of proving by a preponderance of the evidence that the use was neither riparian nor pre-1914 (a potential “proving a negative” situation).  In contrast, an initial factual determination by the Board may be challenged only by an action for writ of mandate, in which the challenger would ordinarily bear the significantly higher burden of demonstrating that the Board’s decision had been made without substantial evidence, or had been an abuse of its discretion.

[Written by Rob Sawyer]

Five RMM Attorneys Selected for Inclusion in 2013 Northern California Super Lawyers® magazine

RMM congratulates Jim Moose, Whit Manley, and Sabrina Teller on being listed in the 2013 Northern California Super Lawyers magazine.  Amanda Berlin and Laura Harris were also included in the Rising Stars section.  The selection process is based on 12 indicators of peer recognition and professional achievement and includes the top five percent of attorneys in their practice areas.

Second District Court of Appeal Upholds Environmental Impact Report for a Sand and Gravel Mining Project against Challenge to Report’s Analysis of Hydrological Impacts

On February 8, 2013, the Second District Court of Appeal in Save Cuyama Valley v. County of Santa Barbara et al. (2013) __Cal.App.4th__ (Case No. B233318) upheld the Santa Barbara County Superior Court’s determination that an Environmental Impact Report (EIR) for a sand and gravel mining project complied with CEQA.

Troesch Materials applied to Santa Barbara County for a conditional use permit to excavate and process approximately 500,000 tons of sand and gravel (the “Diamond Rock mine”) annually. The mine would be located within the frequently dry bed of the Cuyama River at a stretch where the river is about 2,500 feet wide. The mine would excavate approximately 900 feet from the river’s usual flow, and would process materials above the riverbed at a nearby facility. The mine would be located approximately 1,500 feet upstream from another sand-and-gravel mined, called the “GPS mine.”

After the County certified an EIR for the project, Petitioner sued under CEQA, claiming: (1) the thresholds of significance for hydrological impacts were wrong; (2) substantial evidence did not support the EIR’s findings that the project’s hydrological impacts are minor; and (3) the mitigation measure imposed on the project for hydrological impacts is too nebulous; and (4) the EIR’s analysis of water supply and water quality impacts was deficient. The court rejected each of these contentions.

Thresholds. Petitioner first asserted that the County’s use of its own four-part definition of an “adverse hydraulic impact” violated CEQA because it deviated from the threshold of significance set forth in Appendix G of the CEQA Guidelines. Petitioner urged that such deviation was impermissible unless the County formally adopted a different threshold. The court rejected this argument, explaining that CEQA only requires an agency to formally adopt a threshold of significance if it is for “general use” in evaluating all future projects. CEQA does not, however, prohibit an agency from informally developing a threshold of significance to use in individual EIR.  

Petitioner further argued that it was unclear which threshold of significance the EIR applied because the EIR used both Appendix G and the County’s own thresholds. The Court of Appeal explained that the EIR was neither ambiguous nor misleading. According to the court, the EIR explained that the factors cited in Appendix G could trigger a finding of significant impact, but then clearly defined its own threshold for analyzing hydraulic impacts. As noted, CEQA permits an agency to define its own project-specific thresholds, so the County’s approach did not violate CEQA. 

Petitioner also argued that the EIR was required to explain why it did not use Appendix G’s thresholds. The court found, however, that the Appendix G questions are only suggestions; to require any deviation from those suggestions to be documented and justified would improperly elevate Appendix G to a presumptive threshold.

Substantial Evidence Supporting the Agency’s Findings. The court concluded that the EIR adequately explained why the combined sediment deficit created by the proposed Diamond Rock mine and the upstream GPS mine would not translate into adverse hydrological impacts. The EIR adequately explained that the riverbed would be replenished by surplus sediment that would be deposited by flows from previously scoured areas. The court also found that the substantiality of the County’s evidence was not undermined by the differing expert opinions of the U.S. Environmental Protection Agency and Petitioner’s experts.

Mitigation. Next, Petitioner argued that the mitigation measure adopted by the County for hydraulic impacts was too vague. The County conservatively imposed mitigation for this less-than-significant impact as a condition of approval. The mitigation required the applicant to: (1) conduct a semi-annual survey of river bottom elevations in three specified locations; (2) submit this data to various specified agencies for review; and (3) should any “adverse hydraulic conditions be evident, or appear to be developing, which could result in off-site impacts” to confer with the County to modify the mining pit to avoid these impacts. Petitioner attacked the measure as vague and imprecise since it required action when “adverse hydraulic conditions [were] evident.”  Because this terminology seemed to be tied to the impact analysis, the court found it to be sufficiently definite.

The court acknowledged one possible defect in the mitigation measure—that it is triggered not only when “adverse hydraulic conditions” are “evident,” but also when those conditions “appear to be developing.” Despite this defect, the court explained that it had found no authority precluding an agency from requiring mitigation prior to a fixed and clear trigger condition when doing so is more protective of the environment.

EIR’s Water Supply Analysis Was Adequate. Petitioner further argued that the EIR’s analysis of water supply impacts was flawed because the EIR used the same threshold of significance to assess the project’s individual and cumulative impacts. The court found that the EIR did not actually include a project-specific water supply impact analysis, only a cumulative impact analysis. The court concluded, however, that a project-specific impact analysis was not required because the EIR used an “undoubtedly more stringent” cumulative-impacts threshold. Because substantial evidence demonstrated that the project would not have a significant cumulative water supply impact, the project could not be said to have a project-specific water supply impact.

EIR’s Water Quality Analysis Was Adequate. Lastly, Petitioner challenged the EIR’s water-quality analysis. The EIR found that the proposed mine would not have a significant impact on water quality. Nevertheless, the County imposed, as a condition of approval, a mitigation measure requiring that the applicant to keep the bottom of its mine pits at least six feet above any groundwater to mitigate this impact. Petitioner argued that the County lacked substantial evidence to support the EIR’s finding that the project’s water quality impact was less than significant. The court agreed, but nevertheless court found that the EIR’s erroneous conclusion was not prejudicial. The court explained that the EIR set forth all the pertinent data and followed all the procedures, but came to the wrong conclusion in classifying the severity of the impact. Notwithstanding the EIR’s incorrect conclusion, the error was not prejudicial since the County required the applicant to mitigate the impact to a less-than-significant level.

California Supreme Court Grants Review of Tuolumne Jobs & Small Business Alliance v. Superior Court

On February 13, 2013, the California Supreme Court granted a petition for review of Tuolumne Jobs & Small Business Alliance v. Superior Court (2012) 210 Cal.App.4th 1006. The appellate court in Tuolumne Jobs had acknowledged creating a split of authority because it chose not to follow Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961.

The Fifth District Court of Appeal in Tuolumne Jobs held that a city council’s decision to approve a development project under Elections Code section 9412, subdivision (a), is not a ministerial decision and does not exempt the project from the California Environmental Quality Act (CEQA). It concluded that CEQA review is necessary where a lead agency approves a project by adopting the text of a voter initiative as an ordinance instead of holding a special election under Elections Code section 9412, subdivision (b).

In its opinion, the Tuolumne Jobs court discussed why it chose not to follow Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano. The court in Native American Sacred Site had held that an agency’s decision to approve a project via adoption of an initiative without holding an election is ministerial because the city was bound by Elections Code section 9414 to either adopt a qualified voter-sponsored initiative or to place it on the ballot. The Fifth District Court of Appeal in Tuolumne Jobs disagreed, concluding that an agency’s policy decision between two choices is discretionary, even if the agency has a mandatory duty to make a choice. Moreover, it found a crucial distinction between the situation where a city is being compelled to hold an election because it failed to act on a petition and the situation where the city chooses to adopt the initiative without submitting it to the voters in an election. Therefore, the court held that CEQA review is required where a lead agency chooses to approve a project submitted to it by voter initiative under Elections Code section 9214, subdivision (a).

Draft CEQA Guidelines Update for Infill Projects

The Natural Resources Agency has forwarded the final proposed Infill Guidelines, Public Resources Code sections 21095.6 and 21094.5.5, to the Office of Administrative Law. The OAL’s deadline to complete review and approval of the new Guidelines sections is February 19, 2013.

The proposed Guidelines originated at the Governor’s Office of Planning and Research. The Natural Resources Agency modified the original text of the Guidelines before forwarding them to the Office of Administrative Law.  The changes to the Guidelines are summarized below. 

  • Section 15183.3(c) was modified to clarify that streamlining is permitted even where the effects of the infill project were not reduced to less-than-significant levels in the prior EIR.
  • Section 15183.3(d)(1)(C) was modified to clarify that the inability to determine the significance of effects due to lack of project-specific information may trigger the need for additional review.
  • Section 151583.3(f)(3) was modified to clarify that parcels which were recently converted for agricultural use are not eligible for streamlining, but that agricultural use at some point in a parcel’s history will not automatically preclude it from eligibility. This clarification reserves for the lead agency some discretion to consider this issue in light of the entire record.
  • Appendix M’s definition of “Low Vehicle Travel Area” was modified to mean a traffic analysis zone that exhibits a below average existing level of travel as determined using a regional demand model. Similarly, the definition of “Low-Income Housing” in Appendix M was modified to mean “[a] residential or mixed use project consisting of 300 or fewer residential units all of which are affordable to low income households is eligible if the developer of the development project provides sufficient legal commitments to the lead agency to ensure the continued availability and use of the housing units for lower income households, as defined the Health and Safety Code, for a period of at least 30 years.” Finally, the definition of “Proximity to a Major Transit Stop” was changed to state that  “[o]ffice buildings, both commercial and public, within ½ mile of an existing major transit stop, or ¼ mile of an existing stop along a high quality transit corridor, are eligible.”

Once finalized, the regulations will be effective immediately.

First District Court of Appeal Upholds Categorical Exemption Determination for Installation of Telecommunication Equipment on Existing Utility Poles

On July 20, 2012, the First District Court of Appeal—in Robinson v. City & County of San Francisco (2012) 2012 Cal.App.LEXIS 903—affirmed a trial court ruling denying a petition for writ of mandate brought by residents who challenged San Francisco’s approval of a project to install wireless telecommunication equipment on existing utility poles. 

In April 2009, T-Mobile filed an application with the City requesting CEQA review of a series of approximately 40 proposed wireless equipment installations that would be fastened to existing utility poles distributed throughout the city. In August 2009, T-Mobile applied to the City for a permit to install wireless equipment on an existing utility pole in the utility right-of-way on the block where Plaintiffs’ homes were located. The City’s Planning Department had not yet issued its CEQA determination for T-Mobile’s application, but T-Mobile checked a box on the permit application indicating the installation was categorically exempt from CEQA.  In September and November 2009, the City determined that the T-Mobile project was categorically exempt. In February 2010, residents filed a petition for writ of mandate challenging the installations, which was denied by the trial court. Plaintiffs appealed.

On appeal, the residents first argued the City violated CEQA by approving installation of the telecommunication equipment without first conducting an environmental review. T-Mobile argued no such review was required because the installations were categorically exempt under the Class 3 exemption (CEQA Guidelines § 15303, subd. (d)), which applies to “construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures; and the conversion of existing small structures from one use to another where only minor modifications are made to the exterior of the structure.” The appellate court found that, as a matter of law, the T-Mobile project fit “squarely within the ambit of the Class 3 exemptions.”

Residents next argued that the cumulative imapcts exception to the categorical exemption applied to the project. (See CEQA Guidelines, § 15300.2, subd. (b).) The appellate court acknowledged a split in case law regarding the standard of review to apply to an agency’s determination whether a project falls within the cumulative impact exception to categorical exemptions.  Some courts apply a deferential standard, requiring the party seeking to assert the exception must “‘produce substantial evidence showing a reasonable possibility of adverse environmental impact sufficient to remove the project from the categorically exempt class.” (Fairbank v. City of Mill Valley (1999) 75 Cal.App.4th 1243, 1259.) Under this approach, “a court will uphold an agency’s decision if there is any substantial evidence in the record that there will be no significant effect on the environment.” Other courts have been less deferential, holding that the lead agency must itself adopt a fair argument approach when evaluating whether an exception to a categorical exemption applies. (Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 262.)  When applying this standard, courts independently review the agency’s determination to determine whether the record contains evidence of a fair argument of a significant effect on the environment.”

While acknowledging this split, the court declined to take a stance on this split in authority by finding that the residents could not demonstrate the T-Mobile project was subject to the cumulative impact exception under even a fair argument standard of review. In doing so, the court took a very narrow view of the cumulative impact exception.

The court rejected the resident’s assertion that it was necessary for the agency to consider the cumulative impact of all telecommunications equipment that had been installed, were planned for installation, or could be installed in the future by all telecommunication companies throughout the entire city. The appellate court noted this argument ignored the language in the Guidelines, limiting the cumulative impact exception to “successive projects of the same type in the same place…”  The court determined “same place” referred to an area whose size and configuration depend on the nature of the potential environmental impact of the specific project under consideration. Residents had specified only visual and auditory impacts from the T-Mobile project, which the court found are inherently limited by the range of human sensory perception. This provided the limit for analyzing cumulative impacts of projects in the “same place.”

Finally, the residents argued the City violated CEQA’s requirement that any required environmental review be completed before an agency approves a project. The court noted that the equipment in question was not installed until after all relevant approvals had been obtained. The residents failed to cite any authority holding a permit must be retroactively invalidated if required approvals were obtained after, rather than before, the permit was issued. Instead, the court found the City undertook and correctly completed every aspect of the decisionmaking process it was required to follow. Further, the residents could not demonstrate that requiring the city to redo the process in the correct order could possibly yield a different outcome.

The residents additionally asserted a due process claim, arguing the installation of the equipment reduced the value of their property which violated their federal and state constitutional rights to due process because they were not given notice and an opportunity to be heard prior to the City’s approval. To trigger this requirement, government action must result in significant or substantial deprivations of property, not by agency decisions having only a de minimis effect on land. The court found, as a matter of law, that the affixing of small equipment boxes to a utility pole in a developed urban area does not result in a significant or substantial deprivation of property so as to trigger constitutional due process rights.