Tag: Deferred Mitigation

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First, the Court of Appeal ruled that the case was not moot, although the 2011 EIR had been superseded by a new EIR certified in 2015, because the 2011 version had never been decertified and thus could be relied upon.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.

First District Court of Appeal Upholds EIR for Marin Desalination Plant

On May 21, 2013, the First District Court of Appeal issued its decision in North Coast Rivers Alliance v. Marin Municipal Water District (2013) __ Cal.App.4th __ (Case No. A133821, A135626). The case involved a challenge to an EIR prepared for a desalination plant in Marin County.  The trial court had found that the analysis in the EIR was inadequate in several areas and that new information added to the EIR required recirculation.  The Court of Appeal reversed.

Background

In August 2003, the District proposed building a desalination plant in San Rafael. The District circulated a draft EIR for the project in November 2007 and released the final EIR in December 2008.  The final EIR included a new Alternative 8, which discussed water conservation and diverting water from the Russian River as an alternative to desalination. The District certified the final EIR in February 2009 and approved the project in August 2009.  In September 2011, the trial court ruled the EIR was inadequate in various respects, and adequate in others.  The District appealed.

Aesthetic Impacts

The court began with a discussion of the EIR’s analysis of aesthetic impacts caused by three proposed water tanks—one on Tiburon Ridge (“Ridgecrest A tank”) and two on San Quentin Ridge. The EIR concluded that the intervening topography and existing vegetation would prevent the Ridgecrest A tank from having a significant effect on scenic vistas. The EIR included a detailed discussion of potential aesthetic impacts of development of the Ridgecrest A tank, including the size and shape of the tank, satellite image analysis from several directions, visual simulation and impacts on vistas from homes, hiking trails and the highway.  The court held that the analysis constituted substantial evidence to support the conclusion that the tank’s impact would be less than significant.  The court noted that distinguishing between substantial and insubstantial adverse environmental impacts was a policy decision that must be made by the lead agency based, in part, on the setting.  The Alliance’s disagreement with the EIR’s conclusions did not mean those conclusions were deficient.

The EIR further concluded that, unlike the Ridgecrest A tank, the two San Quentin Ridge water tanks would have a significant aesthetic impact and proposed a mitigation measure that required the District to work with a landscape architect and the nearby cities of San Rafael and Larkspur to create a landscaping plan to “soften” the view of the water tank. The landscaping plan “would identify success metrics such as survival and growth rates for the plantings.” The Alliance argued, and the trial court had agreed, that the mitigation measure was improperly deferred and indefinite. The Court of Appeal disagreed.  It held that the mitigation measure was acceptable in this situation because the mitigation was known to be feasible and practical considerations prevented the District from establishing more specific standards early in the process.   The measure was sufficient because it committed the District to mitigation and set out a standard for the landscaping plan to follow:  to reduce and soften the visual intrusion of the tanks.  Although the specific details of how mitigation would be achieved under the plan were deferred until the construction phase, the EIR gave adequate assurance that visual impacts would be mitigated by the selection and location of appropriate plantings.

The Alliance’s third argument regarding the water tanks was that the EIR failed to address whether Ridgecrest A tank was inconsistent with the Countywide Plan. The court found the analysis was supported by substantial evidence. Under CEQA, only inconsistencies with plans require analysis and here, the EIR analyzed the one inconsistency (with the plan’s open space designation) and mitigated it. The court held that the trial court’s ruling, which faulted the District for not mentioning each of the specific elements or policies in the Countywide Plan that could be affected, was tantamount to requiring the EIR to provide a detailed discussion of the Project’s consistency with the plan. The court noted that CEQA includes no such requirement.

Seismology

Turning next the EIR’s seismology analysis, the court held that the EIR adequately analyzed liquefaction and health and safety impacts related to earthquakes.  The EIR’s seismology analysis provided detailed information on geologic conditions in the area, and considered the potential for seismic hazards including ground shaking and liquefaction.  The EIR also considered seven potential impacts associated with seismic risks.  Moreover, the EIR required project features and components to be built to withstand seismic activity and in compliance with applicable standards in the Building Code.  The court therefore, held that the EIR’s analysis of seismic impacts was adequate.

Hydrology and Water Quality Impacts 

The next issue addressed by the court was the hydrology and water quality impacts of the project. The trial court had ruled that the EIR did not contain an adequate discussion of the frequency of shock-chlorination treatments and that it lacked substantial evidence to support the District’s conclusion that untreated chlorinated water would not be discharged into the Bay. The Court of Appeal disagreed here as well and found that the analysis was adequate.  The EIR described the shock-chlorination process, its frequency, and wastewater disposal and evaluated whether wastewater produced by the project could impact water quality.  It further explained that testing conducted for the project supported the conclusion that shock-chlorinating chemicals would not cause water quality impacts in receiving waters.  The court held that this explanation was sufficient.  Because the District had determined that the project impact was insignificant, the EIR did not need to include a more detailed analysis.

Biological Resources 

Holding that the EIR’s analysis of biological impacts was adequate, the court rejected the Alliance’s arguments regarding entrainment, the environmental baseline, and pile driving.  Regarding entrainment, the trial court had concluded that the evaluation methodology used for the EIR’s analysis of entrainment was inadequate because it did not follow the recommendations of the California Department of Fish and Game and the National Oceanic and Atmospheric Administration Fisheries to conduct monthly source water sampling. The District explained in the EIR that, instead of monthly sampling, it chose peak abundance periods to conduct the sampling to overestimate the impacts. The District also responded to NOAA Fisheries and CDFG’s requests for additional data by explaining that further sampling was impractical.  The court held that the mere difference of opinion regarding sampling methods was not enough to invalidate the EIR.

The court held the baseline was appropriate because the District used project specific studies and decades of CDFG data and did not base the description solely on two months of water sampling, as the Alliance had alleged.   The EIR considered the various species of fish that may be affected by the project.  The court found that the description of the environmental setting was more than adequate.

The EIR had also found that there would be a potential significant impact on the environment from the reconstruction of a pier, which would require driving up to 175 concrete piles into the Bay. In order to mitigate this impact, the District adopted a mitigation measure that required the District to consult with NOAA Fisheries to find appropriate measures and to monitor the area during the pile-driving activities. Moreover, the District was required to comply with the Endangered Species Act section 7 consultation requirement. The trial court found that these mitigation measures were not sufficiently specific. Once again, the appellate court disagreed.  Finding that the mitigation was adequate, the court noted that a condition requiring compliance with environmental regulations is a common and reasonable mitigating measure.

Energy and Greenhouse Gas Emissions

The trial court had ruled that the EIR’s discussion of energy impacts was inadequate because it did not discuss a particular alternative­­—the use of green energy credits to mitigate energy impacts. The appellate court held, however, that because the EIR had found that the energy impacts would be insignificant, there was no requirement to discuss mitigation measures. The court also upheld the EIR’s greenhouse gas emissions analysis, which concluded that “the Project would not interfere with achieving a 15 percent reduction in GHG emissions,” satisfying Marin’s Cities for Climate Protection campaign. Additionally, the District voluntarily committed to purchase only renewable energy for the project. The Alliance argued that this was a vague and unenforceable policy.  But the court held that no mitigation was required for GHG emissions because there was no finding of significant impact. Even so, the court went on to find that the EIR contained substantial evidence showing the feasibility of adhering to this commitment.

Recirculation 

The final argument discussed by the court was whether the EIR needed to be recirculated when Alternative 8 was added to the final EIR. The trial court had found that Alternative 8 represented a significant new feasible solution to the project objectives, and therefore, recirculation was required. The appellate court, however, found that Alternative 8 was neither feasible nor significantly “new” enough to warrant recirculation. Alternative 8 was infeasible because it would not provide reliable potable water in a drought year – one of the project objectives.  That was because the alternative relied in part on increased imports from the Russian River, and there was substantial uncertainty regarding whether such increases would ever be allowed.  The alternative was not sufficiently new because there was an alternative in the draft EIR that discussed conservation as an alternative to the project. Given these facts, the District had substantial evidence to support its decision not to recirculate the EIR. Recirculation, the court emphasized, is an exception rather than the general rule.

Whit Manley of Remy Moose Manley, LLP, Chris Butcher of the Thomas Law Group, and District General Counsel Mary Casey represented MMWD.