First District Strikes Down Refinery’s EIR For Failure To Describe The Project Consistently And Impermissibly Deferring Greenhouse Gas Mitigation

Communities for a Better Environment et al. v. City of Richmond (2010) 184 Cal.App.4th 70.

Communities for a Better Environment et al. v. City of Richmond involves an EIR prepared for a proposal by Chevron to replace and upgrade certain facilities at its oil refinery in western Contra Costa County, to process a more varied mix of crude oil types from a wider variety of sources than are currently processed at the site.

The court found the EIR’s discussion of the types of crude oil that the refinery currently processes, as compared to the types of crude that refinery would be able to process as a result of the project, was so “unclear and inconsistent” that the EIR failed to provide an “accurate, stable, and finite project description.” In particular, the record was unclear as to whether the project would allow the refinery to process heavier crude oil than is currently processed at the site. For instance, the EIR claimed that the project is designed to allow greater flexibility in refining future crude oil supplies that the EIR described as “increasingly heavier”; but the EIR also denied that the project would enable the refinery to process heavier crude. Although one expert testified the project would not enable the refinery to process heavier crude, that expert’s opinion was based on confidential data provided by Chevron, and therefore the expert’s opinion did not meet CEQA’s “informational” goals. Because it was unclear whether the project would increase the refineries ability to process heavier, less clean, crude oil, the court found the EIR’s project description violated CEQA.

The court next considered the EIR’s strategy for reducing the project’s greenhouse gas emissions. The final EIR for the project concluded that the project’s impact to global climate change was too “speculative” for a significance determination. In the face of public opposition to this conclusion, following release of the final EIR, the city issued findings in a new EIR volume that concluded the project would have a significant impact on climate change. The new EIR volume proposed a mitigation measure requiring Chevron to submit to the city council a greenhouse gas reduction plan within one year after project approval that would ensure that the project’s operations would not result in a net increase in greenhouse gas emissions over the baseline. The mitigation measure also included a non-exclusive list of possible measures that Chevron should consider in developing the greenhouse gas emission reduction plan. The court concluded that this mitigation measure impermissibly deferred mitigation by allowing Chevron to formulate mitigation a year later, outside the EIR process, and giving the city council final approval over the mitigation plan without further public review. In so holding, the court distinguished several cases upholding deferred mitigation where circumstances prevented the formulation of aspects of the mitigation measures at the time of environmental review and the measures contained specific performance standards guaranteeing their effectiveness. Unlike those cases, here, there was no evidence that the measures identified in the mitigation measure could feasibly meet the stated “no net increase” standard. Nor did the mitigation measure provide any objective criteria for the city council to apply in measuring their success.

Lastly, the court held the city had not unlawfully segment environmental review. The court determined that because the refinery project did not “depend on” construction of a hydrogen pipeline that would be owned and operated by a third-party industrial gas company, Praxair, the city’s treatment of the hydrogen pipeline as a separate project did not constitute illegal piecemealing.

Communities for a Better Environment v. City of Richmond is the first published court of appeal decision addressing the adequacy of proposed measures to mitigate a project’s greenhouse gas emissions. The case suggests agencies should not rely on a generalized goal of “no net increase” in greenhouse gas emissions in the absence of quantified evidence that such a goal could feasibly be achieved. Any mitigation measures recommended to achieve a no-net increase in greenhouse gas emissions should be well-defined and based on objective success criteria. This case also underscores the importance of maintaining a consistent project description throughout the record of proceedings in order to provide the public and decisionmakers with meaningful information about the actual consequences of a proposed project. Lastly, the case also emphasizes that related projects with independent utility need not be analyzed as a single project under CEQA. This holding is consistent with the recent Second District Court of Appeal decision in Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210.