Tag: Climate Change

Fourth District Finds San Diego County’s Climate Change Guidance Document Contains Improperly Adopted Thresholds of Significance that Violate CEQA and a Previously Issued Writ of Mandate

In Golden Door Properties, LLC v. County of San Diego (2018) _ Cal.App.5th _ (Case No. D072406—consolidated with Case No. D072433), Division One of the Fourth District Court of Appeal upheld the trial court’s determination that the County of San Diego’s “2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Document” (“2016 GHG Guidance”) was ripe for adjudication, constituted piecemeal environmental review, and contained an improper threshold of significance, in violation of CEQA and a previously-issued writ of mandate.

In 2011, the county updated its general plan. The Environmental Impact Report for the update incorporated mitigation measures to address greenhouse gas emissions from county operations. Two such measures are at issue here. First, Mitigation Measure CC-1.2 required the county to prepare a Climate Action Plan (CAP), and to adopt GHG emission targets and deadlines for achieving the targets. Second, Mitigation Measure CC-1.8 required the county to revise its guidelines for determining GHG significance based on the CAP. The county adopted a CAP, which was set aside when the court granted a petition for writ of mandate filed by the Sierra Club. While that case was on appeal, the county adopted the “2013 Guidelines for Determining Significance for Climate Change” (“2013 Guidelines”). Sierra Club challenged the 2013 Guidelines through a supplemental petition, which the parties stipulated to stay pending the appeal. In 2014, the court of appeal upheld the trial court’s decision to set aside the CAP. On remand, the trial court issued a supplemental writ directing the county to set aside both the CAP and the 2013 Guidelines and retained jurisdiction to ensure compliance.

In 2016, while in the process of developing the CAP, the county published the 2016 GHG Guidance. In one section, the county stated that it represented “one potential set of criteria and methodologies, along with supporting evidence that would be appropriate for Climate Change Analysis,” while in another section it stated that “[t]he County Efficiency Metric is the recognized and recommended method by which a project may make impact significance determinations.” Sierra Club filed a second amended petition in the trial court, and Golden Door Properties, LLC filed a separate challenge to the 2016 GHG Guidance. The cases were consolidated through a stipulation and the trial court determined that the claims were ripe, that the 2016 GHG Guidance created a threshold of significance, violated Mitigation Measures CC-1.2 and CC-1.8, was not supported by substantial evidence, and violated the previous writ of mandate because it constituted piecemeal review. The county appealed.

First, the court addressed the issue of ripeness. The county argued that the action was not ripe because it was still developing the CAP and because the controversy did not involve a specific set of facts (that is, no project using the 2016 GHG Guidance to perform Climate Change Analysis had been challenged). The court disagreed, finding that the situation here involved a threshold of significance that would “be used routinely to determine environmental effects…” and thus generally applicable. The court distinguished Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158 because that case involved a challenge to policies in a guidance document, under which the Commission might impose certain permit conditions should any of the landowner/plaintiffs apply for such a permit. The court found that, although the 2016 GHG Guidance acknowledged that other methods for determining significance may apply, the efficiency metric was stated to be “the recognized and recommended method” for determining GHG significance, making it generally applicable and thus justiciable.

The county argued that the 2016 GHG Guidance did not set a threshold of significance, but instead, provided a recommended method for evaluating GHG emissions. The court disagreed and found that, because the 2016 GHG Guidance provided one “recognized and recommended” efficiency metric to measure the significance of a project’s GHG emissions, the efficiency metric was a threshold of significance. That the county’s 2013 Guidelines were more explicit than the 2016 GHG Guidance did not make the efficiency metric any less of a threshold of significance. The court found that the metric violated CEQA because the county had failed to follow the adoption procedures for such thresholds laid out in CEQA Guidelines section 15064.7, which required formal action by the county after a public review period. The court also found that Mitigation Measure CC-1.8 required the county to adopt the CAP before updating its guidance documents because Measure CC-1.8 required the updated guidance to be based on the CAP.

The court also found that the threshold of significance was not supported by substantial evidence. Specifically, the court held that the county needed to support the efficiency metric with substantial evidence establishing a relationship between the statewide data used to establish the metric and the county’s reduction targets. The 2016 GHG Guidance stated that the efficiency metric represented the county’s “fair share” of statewide emissions mandates, but did not explain why that was so. Additionally, the efficiency metric was recommended for all projects, but the 2016 GHG Guidance did not explain why the efficiency metric (based on service population) would be appropriate across all project types.

The court also agreed with the plaintiffs that the county had “piecemealed” its environmental review because the 2016 GHG Guidance preceded the completion of the CAP. The county argued that, because the CAP was on schedule to be released in compliance with the previous writ, the 2016 GHG Guidance did not violate the writ. The court applied the law-of-the-case doctrine and stated that its previous decision held that the CAP and the updated county guidance were a single project for CEQA purposes. For that reason, the CAP and updated guidance must be publicly reviewed and adopted by the county together. Because the CAP had not been adopted when the 2016 GHG Guidance was issued by the county, the 2016 GHG Guidance violated the writ.

 

OPR Initiates Rulemaking Process for First Comprehensive Update to the CEQA Guidelines in Twenty Years, Affecting Several Areas of Analysis

On November 27, 2017, the Governor’s Office of Planning and Research (OPR) presented the California Natural Resources Agency with proposed amendments to the CEQA Guidelines. As Director Ken Alex noted in his transmittal letter, this is the most comprehensive update to the Guidelines since the late 1990s. Among other changes, OPR’s amendments affect the analysis of energy impacts, promote the use of vehicle miles traveled (VMT) as the primary metric for transportation impacts, and clarify Guidelines section 15126.2 to specify that an agency must analyze hazards that a project may risk exacerbating.

The amendments to the CEQA Guidelines have been shaped by several years of discussion and public comment. OPR began discussions with stakeholders in 2013 and released a preliminary discussion draft of the comprehensive changes to the Guidelines in August 2015. OPR received hundreds of comments on the proposed updates and has provided a document with Thematic Responses to Comments.

One of the most highly-anticipated and impactful changes is the switch from the level of service (LOS) to VMT as the primary metric in analysis of transportation impacts. These updates were required by Senate Bill 743, which directed OPR to develop alternative methods for measuring transportation impacts. Due to the complexity of these changes, OPR has provided a Technical Advisory on Evaluating Transportation Impacts in CEQA to assist public agencies.

Some highlights from the proposed updates include:

  1. Appendix G: adds new questions related to Energy, VMT, and Wildfire;
  2. Guidelines section 15064.3 (SB 743): establishes VMT as the primary metric for analyzing transportation impacts, with agencies having a two-year opt-in period to make the transition easier;
  3. Energy impacts: includes changes to Appendix G and makes clear that analysis must include energy use for all project phases and include transportation-related energy;
  4. Guidelines section 15126.2, subdivision (a): adds the phrase “or risks exacerbating” to implement the California Supreme Court’s holding in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, requiring an EIR to analyze existing hazards that a project may make worse; and
  5. Guidelines section 15064.4: includes clarifications related to the analysis of greenhouse gas (GHG) emissions to reflect the Supreme Court’s decisions in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal.5th 497 and Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204 (“Newhall Ranch”).

On January 25, 2018 the Natural Resources Agency initiated the formal rulemaking process. From the Agency: The Natural Resources Agency’s proposed updates to the Guidelines Implementing the California Environmental Quality Act are now available.  The proposed changes to the Guidelines and related rulemaking materials are available on the Agency’s website at http://resources.ca.gov/ceqa/.  Public hearings will be held in Los Angeles on March 14, 2018 and in Sacramento on March 15, 2018.  Written comments must be submitted by 5:00pm on March 15, 2018.  Hearing locations, instructions for submitting comments and related information regarding the rulemaking process is contained in the Notice of Proposed Rulemaking.

 

 

 

On Remand, Fourth District Determines that Case Challenging SANDAG’s RTP Is Not Mooted by Later EIR and Resolves CEQA Issues on the Merits

On November 11, 2017, the Fourth District, Division One in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413 (Cleveland II), resolved the remaining issues on remand from California Supreme Court’s decision earlier this year.

SANDAG certified a programmatic EIR for its 2050 Regional Transportation Plan/Sustainable Communities Strategy in 2011. Petitioners challenged that EIR, alleging multiple deficiencies under CEQA, including the EIR’s analysis of greenhouse gas (GHG) impacts, mitigation measures, alternatives, and impacts to air quality and agricultural land. The Court of Appeal held that the EIR failed to comply with CEQA in all identified respects.  The Supreme Court granted review on the sole issue of whether SANDAG was required to use the GHG emission reduction goals in Governor Schwarzenegger’s Executive Order S-3-05 as a threshold of significance. Finding for SANDAG, the Court left all other issues to be resolved on remand.

First, the Court of Appeal ruled that the case was not moot, although the 2011 EIR had been superseded by a new EIR certified in 2015, because the 2011 version had never been decertified and thus could be relied upon. The court also found that petitioners did not forfeit arguments from their original cross-appeal by not seeking a ruling on them. And, even if failing to raise the arguments was a basis for forfeiture, the rule is not automatic, and the court has discretion to resolve important legal issues, including compliance with CEQA.

Second, the court reiterated the Supreme Court’s holding, that SANDAG’s choice of GHG thresholds of significance was adequate for this EIR, but may not be sufficient going forward. Turning to SANDAG’s selection of GHG mitigation measures, the court found that SANDAG’s analysis was not supported by substantial evidence, because the measures selected were either ineffective (“assuring little to no concrete steps toward emissions reductions”) or infeasible and thus “illusory.”

Third, also under the substantial evidence standard of review, the court determined that the EIR failed to describe a reasonable range of alternatives that would plan for the region’s transportation needs, while lessening the plan’s impacts to climate change. The EIR was deficient because none of the alternatives would have reduced regional vehicles miles traveled (VMT). This deficiency was particularly inexplicable given that SANDAG’s Climate Action Strategy expressly calls for VMT reduction. The measures, policies, and strategies in the Climate Action Strategy could have formed an acceptable basis for identifying project alternatives in this EIR.

Fourth, the EIR’s description of the environmental baseline, description of adverse health impacts, and analysis of mitigation measures for air quality, improperly deferred analysis from the programmatic EIR to later environmental review, and were not based on substantial evidence.  Despite acknowledging potential impacts from particulate matter and toxic air contaminants on sensitive receptors (children, the elderly, and certain communities), the EIR did not provide a “reasoned estimate” of pollutant levels or the location and population of sensitive receptors. The EIR’s discussion of the project’s adverse health impacts was impermissibly generalized. The court explained that a programmatic EIR improperly defers mitigation measures when it does not formulate them or fails to specify the performance criteria to be met in the later environmental review. Because this issue was at least partially moot given the court’s conclusions regarding defects in the EIR’s air quality analysis, the court simply concurred with the petitioners’ contention that all but one of EIR’s mitigation measures had been improperly deferred.

The court made two rulings regarding impacts to agricultural land. In finding for the petitioners, the court held that SANDAG impermissibly relied on a methodology with “known data gaps” to describe the agricultural baseline, as the database did not contain records of agricultural parcels of less than 10 acres nor was there any record of agricultural land that was taken out of production in the last twenty years.  This resulted in unreliable estimates of both the baseline and impacts. However, under de novo review, the court found that the petitioners had failed to exhaust their remedies as to impacts on small farms and the EIR’s assumption that land converted to rural residential zoning would remain farmland. While the petitioners’ comment letter generally discussed impacts to agriculture, it was not sufficiently specific so as to “fairly apprise” SANDAG of their concerns.

Justice Benke made a detailed dissent. Under Benke’s view, the superseded 2011 EIR is “most likely moot” and in any event, that determination should have been left to the trial court on remand. This conclusion is strengthened, when, as here, the remaining issues concern factual contentions. As a court of review, their record is insufficient to resolve those issues.

Mission Bay Alliance v. Office of Community Investment and Infrastructure

Mission Bay Alliance v. Office of Community Investment and Infrastructure (2016) 6 Cal.App.5th 160

The First District Court of Appeal upheld the city’s approval of a new arena in the Mission Bay neighborhood of San Francisco. The arena will serve as the home of the Golden State Warriors’ basketball team. The Court held the environmental impact report certified by the city was adequate, finding among other things that (1) the city had properly “tiered” the EIR off an earlier program EIR covering redevelopment of Mission Bay, (2) the city could rely on the project’s consistency with the city’s adopted climate action plan, and (3) the city could rely on implementation of various transit improvements to address traffic traveling to and from the arena. Whit Manley argued the case for the Warriors.

California Air Resources Board 2017 Climate Change Scoping Plan Update Issued

In January 2017, the California Air Resources Board (CARB) released the Draft 2017 Climate Change Scoping Plan Update. The Proposed Scoping Plan identifies the overall strategy to reduce greenhouse gas (GHG) emissions by 40 percent below 1990 levels by 2030—the target codified in SB 32. The strategy requires contributions from all economic sectors and includes a combination of extending key reduction programs and new actions that would prioritize direct emissions reductions.

The Proposed Scoping Plan continues the cap-and-trade program through 2030. The analysis in the plan finds that cap-and-trade is the lowest cost, most efficient policy approach to meeting the 2030 goal. According to the analysis, even if other measures fall short, cap-and-trade provides certainty that California will meet the 2030 target emissions reduction. The agency is also evaluating potential changes to the cap-and-trade program to “support greater direct GHG emissions reductions.” Under evaluation are measures which include reducing the offset usage limit, redesigning the allocation strategy to support increased technology and energy investments to reduce GHG emissions, and reducing allocation for entities with criteria or toxic emissions that exceed a predetermined baseline.

Other key components of the overall approach include: a 20 percent reduction in GHG emissions from the refinery sector; continued investment in renewable energy; efforts to reduce emissions of short-lived climate pollutants; and increased focus on zero- and near-zero emission vehicle technologies.

CARB is currently seeking comments on the Proposed Scoping Plan. The comment period was recently extended until April 10, 2017. A public board meeting on the Final Proposed Scoping Plan is scheduled for June 22-23, 2017.

California Continues its Leadership in the Fight Against Climate Change

Governor Brown recently signed Senate Bill 32 and Assembly Bill 197 continuing California’s leadership on climate change. SB 32 and AB 197 were inextricably linked—each bill requiring the passage of the other.

SB 32 significantly increases the state’s targets for greenhouse gas emissions reductions. It calls for a reduction in greenhouse gas emissions of at least 40 percent below the statewide limit by 2030.

AB 197 requires CARB to prioritize direct emission reductions and consider social costs when adopting regulations to reduce greenhouse gas emissions as a means to protect the state’s “most impacted and disadvantaged communities.” Social costs are defined as “an estimate of the economic damages, including, but not limited to, changes in net agricultural productivity; impacts to public health; climate adaptation impacts, such as property damages from increased flood risk; and changes in energy system costs, per metric ton of greenhouse gas emission per year.” The legislation requires CARB to prioritize those rules and regulations that would result in direct emissions reductions at large stationary and mobile sources. AB 197 also creates oversight of future CARB greenhouse gas emissions reductions strategies by adding two legislators to the state board as ex-officio nonvoting members and creating a joint legislative committee that will make recommendations to the legislature concerning the state’s programs, policies, and investments related to climate change.

 

The Council on Environmental Quality Finalizes Guidance Directing Agencies to Consider Climate Change and Greenhouse Gas Emissions in NEPA Reviews

The Council on Environmental Quality (“CEQ”) released final guidance providing a framework for federal agencies to quantify greenhouse gas (“GHG”) emissions for projects subject to the National Environmental Policy Act (“NEPA”). When addressing climate change, agencies should consider both the potential effects of a proposed action on climate change as well as the effects of climate change on a proposed action and its environmental impacts.

CEQ recommends using projected GHG emissions as a proxy to quantify impacts—along with providing a qualitative discussion of the relationship between GHG emissions and climate change—to assist federal agencies in making “a reasoned choice among alternatives and mitigation actions.” Both direct and indirect effects should be analyzed in comparison to the no-action alternative—amounting to cumulative effects analysis. The guidance expressly provides that a separate cumulative effects analysis for GHG emissions is not necessary. The preference is for a quantitative analysis of GHG emissions based on available tools and information. Where agencies do not quantify projected GHG emissions, a qualitative analysis should be included along with an explanation of why quantification was not reasonably available. Simply stating that the proposed project represents only a small fraction of GHG emissions globally is insufficient. Finally, proposed mitigation of GHG emissions should be evaluated to ensure they are “verifiable, durable, enforceable, and will be implemented.”

In analyzing how climate change will affect a proposed project, CEQ does not expect agencies to undertake original research or analysis; rather the expectation is that agencies will rely on existing, relevant scientific literature, incorporating such research by reference into an environmental document. Accounting for climate change during the planning process allows agencies to consider a project’s vulnerability to climate change, in addition to particular impacts of climate change on vulnerable communities, allowing agencies to explore opportunities to increase a project’s resilience to climate change as part of the initial design.

Overall, CEQ would have agencies treat the analysis of GHG emissions and climate change like any other environmental impact under NEPA. The guidance acknowledges that the “rule of reason” and proportionality play a role in determining the extent of analysis, which should be commensurate with the quantity of projected GHG emissions “as it would not be consistent with the rule of reason to require the preparation of an EIS for every federal action that may cause GHG emissions regardless of the magnitude of those emissions.”

This guidance does not carry the force and effect of law. Nevertheless, it does provide a common approach to be used by federal agencies in analyzing climate change, and is bound to be persuasive in determining whether an EIS adequately addresses climate change impacts.

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.

Fourth District decision holds San Diego’s Climate Action Plan violates CEQA

Division One of the Fourth District Court of Appeal granted Sierra Club’s petition to enforce a climate change mitigation measure adopted by the County of San Diego. The court affirmed the decision below. Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152.

Mitigation measure CC-1.2, which was included in a program EIR for the County’s 2011 general plan update, committed the County to preparing a climate change action plan (CAP) with more detailed greenhouse gas (GHG) emissions reduction targets and deadlines, and comprehensive and enforceable GHG emissions reductions measures that would achieve specified GHG reductions by 2020. Sierra Club alleged that, contrary to this commitment, the County prepared a CAP that expressly did not ensure reductions. The County also developed associated guidelines for determining significance thresholds. Sierra Club alleged that CEQA review of the CAP and thresholds was performed after the fact, using an addendum to the EIR, which did not address the concept of tiering or the County’s failure to comply with the express language in CC-1.2, and contained no meaningful analysis of the impacts of the CAP and thresholds.

The court first rejected the County’s contention that Sierra Club’s mitigation-related claim was barred by the statute of limitations because it could have been brought with the challenge to the general plan update. The court found that Sierra Club did not challenge the validity of the general plan update EIR or the enforceability of the mitigation measures provided therein, but instead challenged the County’s separate approval of the CAP.

Next, the court held that with respect to the CAP as mitigation for a plan-level document, the County failed to proceed in a manner required by law by going forward with the CAP and thresholds project in spite of the express language of CC-1.2 that the CAP include more detailed GHG emissions reduction targets and deadlines. The County described the CAP’s strategies as recommendations, rather than requirements. It also relied on unfunded programs to support the required emissions reductions. The CAP’s transportation section did not include an analysis of the County’s own operations and the record contained contradictions surrounding programs over which the County had exclusive control. The County did not bind itself to implementation of its programs, and did not cite to any evidence supporting its belief that people would participate in the programs to the extent necessary to achieve the asserted reductions. In fact, the CAP expressly stated that it did not ensure reductions. Quantifying GHG reduction measures, the court stated, was not synonymous with implementing them.

The County also made the erroneous assumption the CAP and thresholds project was the same project as the general plan update, despite the fact that no component of the CAP or thresholds had been created at the time of the general plan update. Thus, the general plan update EIR did not analyze the CAP as a plan-level document that itself would facilitate further development. As a result, the County failed to render a written determination of environmental impact before approving the CAP and thresholds. By failing to consider the environmental impacts of the CAP and thresholds, the court noted, the County effectively abdicated its responsibility to meaningfully consider public comments and incorporate mitigating conditions. The project acknowledged it did not comply with Executive Order No. S-3-05, and would therefore have significant impacts that had not previously been addressed in the general plan update EIR.