Tag: CEQA

The First Appellate District Applies Supreme Court’s Decision in Friends of the College of San Mateo Gardens v. San Mateo Community College District in Upholding Muni’s Approval of a Contract to Install Remaining 900 Feet of Light-Rail Line

On December 20, 2016, the First District Court of Appeal ordered published its decision in The Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency (2016)  6 Cal.App.5th 1237. The court upheld the San Francisco Municipal Transportation Agency’s (Muni’s) determination that a supplemental EIR was not required for the final “loop” of a light-rail project that Muni’s predecessor agency had approved and certified an EIR for in the late 1990s. In so holding, the court rejected the petitioners’ argument that the loop constituted was a “new” project under CEQA. The decision is the first to rely on the California Supreme Court’s recent opinion in Friends of the College of San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal.5th 937 (San Mateo), which established that the deferential substantial evidence standard of review applies to an agency’s decision that a proposal is part of the same project reviewed in an earlier EIR, rather than a new project.

Background

In the 1990s, Muni’s predecessor agency proposed to connect the southeastern part of San Francisco to the rest of the city via the Third Street Light Rail Project, which would link the Visitacion Valley/Little Hollywood and Bayview Hunters Point neighborhoods with Chinatown, Downtown, and South of Market. As relevant to the case, “Segment 4” of the project’s initial operating segment runs along Third Street from Kirkwood Avenue north to 16th Street, and includes a short-turn “Loop” from Third Street following 18th, Illinois, and 19th Streets. This Loop would allow the extension of an existing line to serve Mission Bay and provide an area for two-car trains to lay over. The San Francisco Planning Commission certified a Final EIR for the project in 1998.

By 2003, construction of the project’s initial operating segment was completed, including the Segment 4 along Third Street and much of the Loop. Due to budget constraints, however, the Loop was not fully completed.

In 2013, FTA awarded Muni a grant to fund completion of the Loop. In connection with applying for the grant, in 2012 Muni prepared a memorandum to the San Francisco Planning Department, seeking the department’s concurrence that, under Public Resources Code section 21166, and its implementing CEQA Guidelines sections 15162 and 15163, a supplemental or subsequent EIR was not required for the Loop to be completed. In the memorandum, Muni stated that the environmental impacts of the Loop had been analyzed in the certified Final EIR; there had been no changes to the Loop’s design since the Final EIR was certified; part of the Loop had been built; and, although there were new developments near the Loop, the Final EIR’s analysis assumed those developments would be built. The Planning Department responded that it agreed with Muni that no further environmental evaluation was required.

The project design for the Loop was then finalized. In August 2014, Muni prepared another memorandum to the Planning Department about the Loop, noting that it had been two years since the department had concluded that no further environmental review was required, and since then, the City had approved the stadium for the Golden State Warriors basketball team on the northeast corner of 3rd and 16th Street. The memorandum explained that the arena would likely increase demand for transit, and that the Loop would help meet this demand, and also allow light-rail vehicles to be stored near the arena for quick response to post-event surges in transit demand. The Planning Department responded that it agreed that no further environmental review was required.

In September 2014, the Muni Board of Directors adopted a resolution authorizing the execution of a construction contract for the Loop. The resolution explained that the Loop had been analyzed in the Final EIR certified by the City in 1998 and that the Planning Department had determined that no further environmental review was required.

The petitioners filed a petition for writ of mandate alleging Muni violated CEQA in approving the Loop without first preparing a new EIR. The trial court denied the petition and the petitioners appealed.

The Court of Appeal’s Decision

Under CEQA, an agency must prepare an EIR in the first instance if there is substantial evidence supporting a fair argument that a proposed project may have a significant effect on the environment. This “fair argument” standard creates a low threshold for requiring an EIR. In contrast, once an EIR has been certified for a project, CEQA prohibits an agency from requiring further EIRs, unless: (a) substantial changes are proposed in the project which will require major revisions in the EIR; (b) substantial changes with respect to the circumstances under which the project is being undertaken will require major revisions in the EIR; or (c) new information, which was not known and could not have been known at the time the EIR was certified, becomes available. (Pub. Resources Code, § 21166.)

As the Court of Appeal explained, until recently, the law was unsettled as to the standard of review that applied to an agency’s determination that an activity is a “new” project as opposed to a project that had previously been considered in an EIR. In San Mateo, however, the Supreme Court held that the substantial evidence standard applied. As stated by the high court, “the question ‘whether an initial environmental document remains relevant … is a predominantly factual question,” so the court must defer to the agency’s determination on that issue if it is supported by substantial evidence in the record.

Turning to the record before it, the Court of Appeal concluded that substantial evidence supports Muni’s conclusion that the Loop is not a new project, but part of the previously approved project analyzed in the 1998 certified EIR. The court also held substantial evidence supported Muni’s implicit decision that the Final EIR retains informational value with respect to the Loop. The court explained that the Final EIR described and analyzed the Loop in connection with the project’s initial operating segment. Among other things, the Final EIR analyzed the effects of the initial operating segment on parking and pedestrians and the interrelationship between projected growth in population and employment in the southeastern part of San Francisco. In view of this evidence, the court held Muni did not abuse its discretion in treating the Loop as part of the earlier-approved light-rail project.

The petitioners argued that even assuming that the Final EIR did analyze the Loop as part of the project, the Final EIR did not provide sufficient detail about the Loop. The court rejected this argument, holding that it amounted to an untimely challenge to the Final EIR. The court explained that under Public Resources Code Section 21167.2, an EIR is conclusively presumed valid unless a lawsuit has been timely brought to contest its validity, which no one contended to have happened in this case.

The court further held that substantial evidence supported Muni’s conclusion that no subsequent or supplemental EIR was required for the Loop under Public Resources Code section 21166. Evidence supporting this conclusion included the 2012 and 2014 statements from the San Francisco Planning Department that no further environmental review was required as well as the memoranda prepared by Muni to which those statements respond. In addition, the record included a 2013 environmental assessment (EA) prepared by FTA under NEPA, which concluded the Loop would not result in any adverse environmental effects. The EA provided further substantial evidence in support of Muni’s conclusion that a supplemental EIR was not required.

The petitioners claimed that the Loop had changed since the Final EIR was certified, but the only change they cited was the fact that Muni deferred construction of the Loop, whereas the rest of Segment 4 was built in 2003. The court rejected this argument, noting that the petitioners had not cited any authority holding that mere delay in completing construction constitutes a substantial change in a project under CEQA.

Lastly, the court rejected the petitioners’ argument that Muni abused its discretion by failing to follow procedures in determining that no further CEQA analysis was requited. According to the petitioners, Muni based its decision that no further environmental review was necessary solely on “an unsupported staff conclusion.” But the court noted that this was not a procedural flaw, as CEQA does not set forth any procedure that an agency must follow in deciding whether a new EIR is required. And, in any event, the record shows that Muni relied on more than just the staff report.

 

 

Friends of the College of San Mateo Gardens v. San Mateo County Community College District

Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937

In a unanimous decision, the California Supreme Court emphatically rejected the notion that public agencies should get no deference in deciding whether to treat proposed projects as changes to previously reviewed projects or as new projects under CEQA. In doing so, the court strongly disagreed with the reasoning presented in the Third District’s decision in Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288, which first articulated the “new project” threshold question as a de novo question of law for the courts. The Supreme Court concluded that Division One of the First District Court of Appeal erred in applying Lishman’s “new” project standard to the case at hand, which involved a community college district’s proposed changes to the disposition of a small building complex and landscaped area on a campus for which a campus-wide renovation plan was previously reviewed in an unchallenged mitigated negative declaration (MND). The district considered the subsequent changes in an addendum to the MND and approved the demolition of an existing complex of outdated buildings and their replacement with a new parking lot, concluding that the changes posed no new or more severe environmental impacts than were previously described in the adopted MND.

The Supreme Court granted review to resolve the question of whether Lishman’s “new project” test was the correct approach for courts reviewing subsequent review documents, or whether courts should follow the more deferential, substantial evidence standard explained in Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385. Few appellate courts had followed the Lishman approach after the court in Mani Brothers rejected it. Division One of the First District applied it to the college district’s case in an unpublished decision, but oddly declined to apply it again a few weeks later in its published decision, Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 201-202, thereby highlighting the conflict in the law.

The Supreme Court noted that the Lishman court’s focus on the similarities or lack thereof in the features associated with an originally-reviewed project and subsequent proposal as lacking any basis or standards in CEQA. The court further noted that because of the lack of any standards or framework for measuring the “newness” of a given project, a “new project” test applied by the courts “would inevitably invite arbitrary results.” Moreover, the court emphasized that, given the purpose of CEQA to ensure agencies consider the environmental effects of proposed actions, focusing on the characterization of a proposed project as a new project or a modified project misses the point of subsequent review. Rather, the court concluded, the fundamental determination an agency must make is whether an original environmental document retains some informational value, or whether the proposed changes have rendered it wholly irrelevant.

The court affirmed the college district’s view (shared by the Regents of the University of California, League of California Cities, California State Association of Counties, Association of California Water Agencies, California Building Industry Association, Building Industry Association of the Bay Area, and California Business Properties Association, who participated as amicus parties at the Supreme Court) that the question of whether an initial environmental document remains relevant in light of changed plans or circumstances is inherently a factual question for the agency to answer in the first instance and is reviewable under the deferential substantial evidence standard of review.

Following oral argument, the court ordered supplemental briefing on two issues: (1) the standard of review that applies to an agency’s determination not to prepare an EIR for modifications to a project that was previously reviewed by a negative declaration; and (2) whether CEQA Guidelines section 15162, as applied to projects initially approved by negative declarations rather than EIRs, was a valid interpretation of the governing statute, Public Resources Code section 21166, which does not mention negative declarations. Guidelines section 15162, subdivision (a) prohibits agencies from requiring a subsequent or supplemental EIR unless the agency determines “on the basis of substantial evidence in the light of the whole record,” that “substantial changes . . . will require major revisions of the previous EIR or negative declaration due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects.” The court rejected the petitioner’s argument that application of this substantial evidence standard in section 15162(a) to projects initially analyzed in negative declarations creates a CEQA loophole that permits agencies to evade their obligation to prepare an EIR under the less deferential fair argument standard. As the court explained, “the substantial evidence test referred to in the Guidelines does not, as plaintiff supposes, refer to substantial evidence that the project, as modified, will necessarily have significant environmental effects. It instead refers to substantial evidence that the proposed modifications will involve ‘[s]ubstantial changes’ that ‘require major revisions of the previous EIR or negative declaration due to the involvement’ of new or significantly more severe environmental effects.” The court held that section 15162 constitutes a valid gap-filling measure as applied to projects initially approved via negative declaration, including the college district’s project at hand.

Lastly, the court rejected the petitioner’s contention that the subsequent review schemes in the statute and Guidelines were inapplicable to the district’s project because the originally-approved campus renovation project was more akin to a plan or program than a specific project. Both the Court of Appeal below and petitioner relied on Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 to conclude that when an agency initially adopts a broad, large-scale environmental document (such as the college district’s original MND) that addresses the environmental effects of a complex long-term management plan, a court can find that a material alteration to the plan regarding a particular site or activity may be a new project triggering environmental review under Public Resources Code section 21151. The Supreme Court rejected the attempt to frame the original campus renovation plan and subsequent changes to the disputed area in this manner, holding that the tiering provisions, and therefore the Sierra Club decision, had no applicability here. The court noted that unlike the program EIR at issue in Sierra Club, the MND previously adopted by the college district was a project-specific review that could not be characterized as a first-tier document.

The Supreme Court remanded to the Court of Appeal’s consideration the merits of the district’s addendum and approval of the building demolition and parking lot project. The Court of Appeal had not previously reached the merits because of its conclusion that the subsequent project was “new.”

RMM partners Sabrina V. Teller and James G. Moose represented the respondent San Mateo County Community College District in the litigation from the trial court through the Supreme Court.

On Remand First District Holds BAAQMD’s Significance Thresholds Valid in Specific Instances

In California Building Industry Association v. Bay Area Air Quality Management District (2016) 2 Cal.App.5th 1067, on remand from the California Supreme Court (California Building Industry Association v. Bay Area Quality Management District (2015) 62 Cal.4th 369), the First District found BAAQMD’s CEQA thresholds of significance for “new receptors” valid for specific purposes.

The First District was directed to re-analyze BAAQMD’s thresholds of significance for “new receptors” consisting of residents and workers who will be brought to an area of existing emissions as a result of a proposed project, in light of the Supreme Court’s decision. The Supreme Court held that CEQA generally does not require an analysis of how existing environmental conditions will impact future residents or users of a proposed project. In applying this principle, the Court of Appeal held that the receptor thresholds may be valid in the following instances—when voluntarily used on BAAQMD’s own projects; in analyzing whether a project exacerbates an existing environmental conditions; during CEQA review of school projects; and when analyzing housing development projects under CEQA exemption statutes. The court did not rule specifically on the propriety of the receptor thresholds with respect to determining a project’s consistency with general plans because it was not presented with a concrete example of their use in this context—but ruled that the receptor thresholds were not invalid on their face. While not facially invalid, the court held—consistent with the Supreme Court’s ruling—that the receptor thresholds could not be used for their primary purpose, which was to assess the effect of existing environmental conditions to future users of a project.

Sixth District Holds Fair Argument Standard No Longer Applies to Whether a Resource is “Historical”

In Friends of the Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457, the Sixth District Court of Appeal held that the fair argument standard does not apply to a lead agency’s decision that a resource is not a historical resource—abandoning its previous holding to the contrary in Architectural Heritage Assn v. County of Monterey (2004) 122 Cal.App.4th 1095.

The resource at issue—a wooden railroad bridge, referred to as the Trestle—was built in 1922 as part of a spur line to provide rail freight access to canning districts near downtown San Jose. It was not listed or eligible for listing in the California Register of Historical Resources, nor was it included in a local register of historical resources. As part of its trail system, the City of San Jose proposed to demolish the Trestle and replace it with a new steel truss pedestrian bridge. The city adopted a mitigated negative declaration based on an initial study that concluded the Trestle was not a historical resource. Project opponents filed a writ petition asserting that there was substantial evidence to support a fair argument that the Trestle was a historical resource and therefore an EIR was required. Applying the fair argument standard, the trial court found in favor of petitioners.

The Sixth District disagreed. In rejecting the fair argument standard employed by the trial court, the court focused on the statutory language of Public Resources Code section 21084.1, which defines historical resources for purposes of CEQA. It provides, in part, that a resource may be presumed historical, if it meets certain criteria, unless a preponderance of the evidence demonstrates that it is not historical. Where a resource is not presumptively historical, an agency has the discretion to decide whether it is or is not historical. The court stated that by allowing an agency to overcome a presumption with a preponderance of the evidence, the standard of review logically must be whether substantial evidence supports the lead agency’s decision, not whether a fair argument can be made to the contrary. Based on this determination, the court found that the Legislature could not have intended that a lead agency’s discretionary decision to identify a resource as historical would be subject to a less-deferential review—i.e., fair argument—than a decision regarding a resource presumed to be historical.

Second District Court of Appeal Upholds Class 3 Categorical Exemption for a Car Wash Project on a Vacant Lot and Finds No Unusual Circumstances

In Walters v. City of Redondo Beach (2016) 1 Cal.App.5th 809, the Second District Court of Appeal determined that the City of Redondo Beach did not err in finding a combination car wash and coffee shop project categorically exempt from CEQA and that unusual circumstances exception did not apply. The site was previously a car wash, but was unused since 2001 and the original structure had been demolished, leaving a vacant lot. The city approved a conditional use permit (“CUP”) and determined that the project was exempt under CEQA Guidelines § 15303, as “new, small facilities or structures [and] installation of small new equipment and facilities in structures.”

The dispute between the parties on the exemption concerned whether a car wash fits within the category of “commercial buildings” as defined in CEQA Guidelines section 15303, subdivision (c), and whether the car wash met the size restrictions of that section. The court held that the list in 15303(c) is illustrative and the section expressly includes “similar structure[s].” The car wash qualified because it was a consumer-facing commercial business, similar to those listed in 15303(c), and it included a coffee shop which qualifies as a restaurant. On the issue of size, the court found that, because the project was going to be in an “urbanized area,” the size limit was 10,000 square feet instead of 2,500. So the project’s 4,080 square feet was well under the limit. Lastly, the court found that there was no evidence that the project would “involve the use of significant amounts of hazardous substances” and was thus exempt.

On the unusual circumstances exception issue, the court applied the two tests discussed by the California Supreme Court in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (“Berkeley Hillside”). Under the first test, the court first determines whether there are unusual circumstances under the substantial evidence standard, and, if unusual circumstances are found, “whether there is a reasonable possibility of a significant effect on the environment due to unusual circumstances” under the fair argument standard. The second test requires the challenger to establish unusual circumstances by showing that the project will have a significant effect on the environment.

In applying the first test, the court found that presence of other car washes in the surrounding area, and the fact that the site had been a car wash previously, indicated that the circumstances were not unusual. The court also stated that common operational effects, like noise, traffic, and parking do not constitute unusual circumstances in and of themselves. The court concluded that the petitioners had failed to produce substantial evidence supporting unusual circumstances based on the project’s features. The court therefore never reached the second, fair argument prong of the first test.

The court applied the second test from Berkeley Hillside, and found that petitioners failed to meet their burden under that test as well. Petitioners argued that the project will have a significant effect on the environment because operating a car wash would violate the city’s noise ordinance. The court found this unpersuasive because the city had found that the project would not violate the noise ordinance and took the extra step to condition approval of the project on its meeting the noise ordinance. Petitioners also argued that the project would have a significant adverse effect on traffic because the design of the car wash would cause backups within the property. The court stated that the flow of cars within the property was not “traffic” as defined by CEQA, and there was substantial evidence supporting the city’s finding that any such backups would not affect traffic on the streets.

The court concluded that neither of the Berkeley Hillside tests had been satisfied, and therefore the petitioners had failed to show unusual circumstances. The court upheld the city’s issuance of the CUP and finding that the project was exempt from CEQA.

First District Court of Appeal Holds that the Discovery Rule Does Not Apply to Challenges Brought Under Public Resources Code § 21167

In Communities For A Better Environment v. Bay Area Air Quality Management District (2016) 1 Cal.App.5th 715, the First District Court of Appeal held a petition for writ of mandate as time-barred under Public Resources Code § 21167, subdivision (d). Petitioners argued that the ”discovery rule” should apply because the Bay Area Air Quality Management District (“District”) failed to provide public notice of the ministerial approval and the project itself (a change in operation at a transloading facility from ethanol to crude oil) was “hidden from the public eye.” The court held that the statute governed when the public was deemed to have constructive notice of a project, and the discovery rule postpones the accrual of an action beyond the date of the injury, not beyond the date when the plaintiff is deemed to have constructive notice.

The District issued a ministerial permit for the project in July 2013, which was not subject to CEQA. But the District did not file the optional notice of exemption (“NOE”) and the applicant began transloading crude oil at its facility in October 2013. The conditions of the permit were modified in October and December of 2013, and the District issued a second permit incorporating these modifications in February 2014. On March 27, 2014 petitioners filed a petition for a writ of mandate. The District argued that the petition was time-barred because it should have been brought within 180 days of July 2013, when the permit was issued. Petitioners argued that they only became aware of the project on July 31, 2014, and that the facility is completely enclosed making the change in operation “invisible.” The trial court dismissed the petition without leave to amend as time-barred under 21167.

The First District Court of Appeal distinguished Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929 (“Concerned Citizens”). In Concerned Citizens, the Court interpreted “the date of commencement of the project” to mean “commencement” of the project approved by the lead agency and analyzed in the EIR. Because the project had changed significantly, the petitioners could bring an action within 180 days of when they knew or reasonably should have known that the project commenced was substantially different from the approved project. Here, petitioners did not argue that there was a substantial change in the project, and instead argued that the discovery rule should postpone the accrual of the action until they had actual notice of the project. The First District found this argument to have been rejected in Concerned Citizens, as contrary to legislative intent.

The Court of Appeal also distinguished Ventura Foothill Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429 (“Ventura Foothills”). In that case, the height of a planned building was changed from 75 feet to 90 feet, and while a notice of determination (“NOD”) was filed because of the change, the NOD did not disclose the change in height. The court in Ventura Foothills determined that the 30-day statute of limitations for NODs only applied to the determinations announced in the NOD. Since the change in height was not disclosed, the 30-day statute had not run. Here, the petitioners could not point to any deficiencies in a required notice.

The court stated that in both cases the court interpreted the statute so that the triggering date for barring an action did not occur. Because petitioners could not argue for such an interpretation in this case, their claim was time-barred. Similarly, they could not amend their pleadings to show that the dates of constructive notice in 21167 had not occurred more than 180 days prior to their filing suit.

Second District Court of Appeal Holds that, On Direct Appeal, a Reviewing Court Cannot Issue a Writ of Mandate and Supervise Compliance with the Writ

In Center for Biological Diversity v. Department of Fish and Wildlife (2016) 1 Cal.App.5th 452, a partially published opinion on remand from the California Supreme Court (Center for Biological Diversity v. Department of Fish and Wildlife (2015) 62 Cal. 4th 204), the Second District reversed in part and affirmed in part the trial court’s judgment.

In the non-published portions of the opinion, the Second District reversed the trial court’s decision where it was inconsistent with the opinion of the California Supreme Court. The Second District reversed on the issues of significance criteria selection and baseline calculation, and affirmed on the issues of cumulative greenhouse gas emission impacts and two mitigation measures that would violate Fish and Game Code section 5515. The Second District also reconsidered its previous ruling in the case on two issues in light of the California Supreme Court’s holding that comments filed after certification of the joint EIR/EIS were timely. The Second District considered comments and the responses thereto, but stuck to its original conclusion that the findings on Native American Cultural Resources and impacts of dissolved copper on steelhead smolt were supported by substantial evidence.

In the published portion of the opinion, the Second District considered whether it had the authority to, instead of remanding the matter to the trial court, issue its own writ of mandate to the Department of Fish and Wildlife (DFW) and supervise compliance. The developer/real party in interest requested that the court do so, and its motion was supported by DFW. The developer suggested that the California Supreme Court’s opinion in this case and the language of Public Resources Code section 21168.9 would allow the appellate court to do so. They also argued that the general principle of expedient resolution to CEQA litigation supported the appellate courts ability to issue its own writ of mandate.

The Second District looked first at the plain language of section 21168.9 and determined that there was some ambiguity in the statute’s use of the term “appellate court” because courts of appeal do have original mandate jurisdiction in some cases. But the court’s exploration of the legislative history of section 21168.9 found nothing to suggest that the legislature intended appellate courts on direct appeal to have the authority to issue writs of mandate.

The court then examined the lay of the land, in terms of CEQA and appellate practice, when section 21168.9 was adopted in 1984. According to the Second District, “the practice in 1984 … was for administrative mandate petitions to be filed in superior court,” and no statute provided appellate courts with authority to hear direct CEQA challenges at that time. Further, the Code of Civil Procedure—then and now—limits an appellate court to affirming or reversing and modifying the lower court’s judgment. And, after making its decision, the appellate court must remand the matter back to the trial court. The court found nothing to suggest that the legislature intended to alter this procedure when it enacted Public Resources Code section 21168.9. The court also stated that there is a presumption against repeal by implication, which applied to the Code of Civil Procedure sections governing appellate review.

The Second District concluded there was no authority for appellate courts on direct appeal to issue writs of mandate. Given that lack of authority, there was no way for appellate courts to supervise compliance either. Lastly, the court found that section 21168.9, subdivision (b) was clear in its requirement that trial courts retain jurisdiction over the lead agency to ensure compliance with the writ of mandate.

First District Court of Appeal Upholds EIR for Plan Bay Area that Correctly Excluded Statewide Emissions Reductions in Developing Strategies to Meet SB 375’s Emissions Targets

In Bay Area Citizens v. Association of Bay Area Governments (2016) 248 Cal.App.4th 966, the First District Court of Appeal interpreted SB 375 as requiring the California Air Resources Board (Board) and regional agencies to set and meet the emissions reductions targets through regionally-developed land use and transportation strategies that are independent of existing statewide clean technology mandates. Therefore, the court of appeal upheld the Bay Area Metropolitan Transportation Commission and the Association of Bay Area Government’s (collectively, the Agencies) “Plan Bay Area” and its EIR, finding the opponent’s arguments failed because they were based on a misinterpretation of SB 375’s requirements.

SB 375 requires the Board to provide greenhouse gas emissions reduction targets to each region while taking into account statewide mandates such as the Low Carbon Fuel Standard and the New Vehicle Emissions Standards. Then, each regional metropolitan planning organization (MPO) must prepare a sustainable communities strategy to meet those targets. The Agencies prepared Plan Bay Area. The petitioners commented on the Plan’s EIR stating that the Agencies should have counted reductions expected from preexisting statewide mandates. When the Board’s staff conducted a technical review of the Plan, however, they stated that the Agencies had appropriately excluded greenhouse gas emissions reductions from other technology and fuel programs. The Board then issued an executive order with the staff’s technical report attached, accepting that Plan Bay Area, if implemented, would achieve the targets.

The petitioners alleged that the Agencies failed to comply with CEQA by incorrectly assuming that SB 375 compelled them to exclude compliance with statewide mandates when assessing strategies to meet emissions reductions targets. First, the court looked to the plain meaning and purpose of the statute and found that because the emissions reductions from the statewide mandates are projected to dwarf those achieved by SB 375, the whole statute would be superfluous if the MPOs were simply allowed to cite the expected reductions from preexisting initiatives. Further, the Board’s AB 32 Scoping Plan repeatedly emphasized that the regional land use and transportation strategies were distinct from the statewide mandates. Although the Board was required to take the statewide mandates into account when setting targets under SB 375, the statute did not require any specific approach and the board had discretion to instruct MPOs to exclude consideration of reductions expected from statewide mandates. The Board made this instruction clear when it approved of Plan Bay Area with the exclusion of reductions from statewide mandates.

On the alleged inadequacy of the Plan’s EIR, the court stated that the petitioner’s arguments were based on their misinterpretation of SB 375 and found the EIR adequate. The Agencies were not required to consider the appellants proposed alternative that relied on statewide mandates because, as discussed above, it did not comply with SB 375 and was therefore infeasible. Contrary to the appellants’ contentions, the EIR did not ignore statewide mandates. Consideration of the New Vehicle Emissions Standards and the Low Carbon Fuel standard were included when determining whether implementation of the Plan would result in a net increase in emissions and whether it would impede the goals of AB 32. Further, the court found that in light of the Agencies’ sufficient disclosures throughout the EIR, including when they did and did not consider statewide mandates, the appellant’s arguments amounted to an impermissible substantive attack on the plan.

Written by Sabrina S. Eshaghi

Fourth District Court of Appeals Finds an Addendum Cannot Cure an Inadequate Certified EIR

In Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256, the Fourth District Court of Appeal found that the city’s environmental impact report (EIR) failed to sufficiently analyze potential energy impacts and that the adoption of an addendum subsequent to EIR approval could not be considered in determining the EIR’s adequacy because it was not part of the administrative record. Therefore, the appellate court reversed the trial court’s ruling that the EIR was adequate when analyzed in tandem with the addendum.

The project at issue was a Costco warehouse store and gas station. The EIR concluded the project would have significant traffic impacts but the city certified it and adopted a statement of overriding conditions.  CEQA requires that EIRs propose mitigation measures to reduce the wasteful, inefficient, and unnecessary consumption of energy. Although the certified EIR mentioned energy impacts throughout, it did not contain a separate section devoted to energy impacts analysis. One section stated that since the project would comply with the California Code of Regulations Title 24 energy conservation standards, it would not result in wasteful, inefficient, and unnecessary consumption of energy.

Project opponents filed a petition asserting that the EIR failed to include adequate information regarding the project’s energy use. After the writ petition was filed, the Third District Court of Appeal issued an opinion finding that the analysis of energy impacts in an EIR substantially similar to the one at issue in this case was inadequate. In California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173 (CCEC) the Third District held that the energy analysis was insufficient for three reasons: (1) the EIR concluded the project would generate new trips without calculating the impacts of those trips; (2) the EIR improperly relied on compliance with the building code to mitigate energy impacts without analyzing the additional considerations required by appendix F; and (3) reliance on mitigation measures designed to reduce greenhouse gas emissions was misplaced because though there may be a correlation between the two, air quality mitigation is not a substitute for energy analysis. Ukiah’s EIR had all three of these problems. The city addressed these deficiencies by adopting an addendum to the EIR, and the trial court read the two documents together and concluded the energy analysis was adequate.

The court of appeal reversed the trial court’s decision upholding the EIR and found that subject to Code of Civil Procedure section 1094.5 the addendum was not part of the administrative record and therefore could not be considered in deciding whether the city abused its discretion in certifying the EIR. CEQA Guidelines section 15164, which allows the preparation of addendums, assumes the EIR previously certified was adequate and does not allow retroactive correction of inadequate EIRs. Thus, the court directed the city to set aside its project approval and certification of the EIR until recirculation of the energy analysis and consideration of public comments took place. The court did not offer any opinion on the adequacy of the addendum.

In the unpublished portion of the opinion the court rejected the rest of the project opponent’s arguments. First, the impacts from an interchange improvement discussed in the traffic section of the EIR did not need to be analyzed because it was a longstanding proposal that was needed regardless of the project. Second, the population estimates used in the traffic study were supported by substantial evidence. Third, the court held that the noise study was sufficient and that the impacts to nearby hotel guests were insignificant because nighttime deliveries already occurred for existing commercial uses. Lastly, the court found that the Airport Industrial Park specific plan, with which the project was inconsistent, did not apply because it was effectively superseded.

Written by Sabrina S. Eshaghi