Tag: NEPA

First District Holds Regional Water Quality Control Board’s Failure to Impose Mitigation Requirements Through CEQA Process Did Not Preclude it from Later Imposing Those Requirements Pursuant to Its Authority Under the Porter-Cologne Act

The First District Court of Appeal in Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199, held that CEQA did not preclude the San Francisco Bay Regional Water Quality Control Board, acting as a responsible agency under CEQA, from imposing additional waste discharge requirements via the Porter-Cologne Water Quality Control Act, beyond the mitigation measures imposed during the CEQA process.

Background

Every 10-20 years, the Upper Berryessa Creek—which drains from the Diablo Range Hills to the Coyote Creek tributary, and ultimately into the San Francisco Bay—floods the nearby areas of Milpitas and San Jose. In the 1980s, the U.S. Army Corps of Engineers began working on plans to build a flood control project on the creek, but the project did not move forward until 2013, when construction of a nearby BART station that could be impacted by flooding was proposed.

In 2015, the Santa Clara Valley Water District (District), acting as the lead agency under CEQA, issued a Draft EIR for the project. That same month, the Corps applied to the San Francisco Bay Regional Water Quality Control Board (RWQCB) for a section 401 Clean Water Act certification for the project.

The District later issued the Final EIR for the project, and the RWQCB’s executive officer issued the section 401 certification. As a CEQA responsible agency, the RWQCB found that all impacts within its jurisdiction would be mitigated to less-than-significant levels but clarified that it would later consider waste discharge requirements (WDRs) pursuant to its authority under the Porter-Cologne Act to address impacts to waters and wetlands that were not handled by the section 401 certificate.

In 2017, when project construction was nearly complete, the RWQCB issued a WDR order that required the Corps and the District to provide addition mitigation for the project’s impacts to waters and wetlands. The order stated that it suspended and replaced the prior 401 certification.

The District filed a petition for writ of mandate against the RWQCB, challenging the WDR order under CEQA, as well as section 401 of the Clean Water Act, the Porter-Cologne Act, and other state laws. The trial court denied the petition. The District appealed.

Court of Appeal’s Decision

On appeal, the District argued the RWQCB violated CEQA because: (1) the RWQCB’s failure to impose mitigation requirements as part of the RWQCB’s CEQA review barred it from imposing mitigation via the WDR order; and (2) the RWQCB prejudicially abused its discretion by failing to support the mitigation requirements with substantial evidence. The Court of Appeal rejected both arguments.

Relying on CEQA Guidelines section 15096, the District argued that the RWQCB’s only opportunity to impose mitigation was through the CEQA process. CEQA Guidelines section 15096 provides that a responsible agency that disagrees with the adequacy of a lead agency’s EIR must either sue the lead agency within 30 days, be deemed to have waived any objections to the EIR, prepare a subsequent EIR if legitimate grounds exist, or, assume the role of a lead agency as provided by Guidelines section 15052, subdivision (a)(3). Because the RWQCB did not challenge the District’s certification of the EIR or find that a subsequent EIR was required, the District argued that the EIR was deemed adequate and no additional mitigation measure could be imposed. As explained by the court, however, Public Resources section 21174 includes a savings clause that makes clear that CEQA does not prevent an agency from exercising it independent authority under statutes other than CEQA. The court determined, therefore, that the RWQCB did not violate CEQA by issuing the WDRs because it did so pursuant to its duties under the Porter-Cologne Act. Although the District, acting as lead agency, had not imposed CEQA mitigation measures requiring WDRs, the RWQCB, as a responsible agency, was not precluded from separately discharging its authority under the Porter-Cologne Act. Although the appellate court noted that unified CEQA review and other environmental regulation should be the norm, there may be times when an agency’s own environmental regulation can take place after CEQA review, as recognized by Public Resources Code section 21174.

The court also rejected the District’s claim that the RWQCB’s WDR order imposed “excessive” mitigation that was not supported by substantial evidence. The court concluded that the District failed to engage in sufficient analysis of the evidence supporting the RWQCB’s conclusions, and therefore, failed to carry its burden. The court also concluded that the District’s arguments lacked merit even if they had been properly briefed because the RWQCB’s determinations were supported by substantial evidence.

– Bridget McDonald

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.

Ninth Circuit Upholds EIS for Southern California Delivery of Colorado River Water

The Imperial County Air Pollution Control District and the County of Imperial challenged the United States Department of the Interior’s Environmental Impact Statement analyzing the effects of water transfer agreements on the Salton Sea and in southern California. The court held that the Department did not violate NEPA or the Clean Air Act. The case is People of the State of California ex rel. Imperial County Air Pollution Control District v. U.S. Department of the Interior (May 19, 2014) 14 C.D.O.S. 5454.

History

The Salton Sea’s access to Colorado River water—the Sea’s only water supply— is in jeopardy. In 1922, states in the Colorado River basin agreed to divide the river’s water among the upper- and lower-basin states. In 1931, southern California irrigation and water districts agreed to a framework for distributing the state’s share of the river water, which assumed a perpetual surplus of the water. In 1963, the Supreme Court held in Arizona v. California that California’s Colorado River allotment was limited to 4.4 million acre-feet per year, and that the state could only exceed this limit if other lower-basin states did not use their allotments or there was a surplus of water. In 1999, several water districts negotiated Quantification Settlement Agreements to reduce Colorado River water usage.

In 2001, the Secretary of the Interior announced that she would prepare an Implementation Agreement EIS to consider the consequences of delivering a portion of Imperial Irrigation water at different diversion points on the Colorado River for use outside of the Imperial Valley. The Final EIS (“FEIS”) discussed on-river environmental impacts of altering Colorado River delivery diversion points, indirect effects of changing the amount of water received by the California districts, and potential mitigation measures to reduce off-river ecological consequences. In 2003, the Secretary evaluated minor modifications to the proposed master implementation agreement, the Colorado River Water Delivery Agreement. She determined a supplemental EIS was unnecessary and issued a final record of decision. Plaintiffs sued and the district court granted summary judgment to the defendants, holding that plaintiffs lacked standing and, alternatively, rejecting their NEPA claims on the merits.

Ninth Circuit Decision

The Ninth Circuit Court of Appeal held that plaintiffs had established Article III standing, and thus moved on to plaintiffs’ substantive arguments. In assessing plaintiffs’ NEPA claims, the court first considered whether the Secretary had taken a “hard look” at the environmental consequences of the proposed action and reasonably evaluated the relevant facts.

Plaintiffs argued that the Implementation EIS either did not clarify whether it incorporated the state Transfer Environmental Impact Report or the Federal Transfer EIS, or improperly cited to a non-NEPA document—the Transfer EIR. The court determined that plaintiffs’ assertion that the FEIS cited to the separate CEQA and NEPA reviews as if they were a single document was “fly-specking,” and the court stated it would not let a minor misstatement prejudice its review. The court also found harmless a reference to a document as “tiered to and incorporated” when the analysis should have only said “incorporated.” The court further held that the Secretary did not act arbitrarily by separately preparing a Transfer EIS and an Implementation Agreement EIS, since the project could be properly segmented in that manner under the independent utility test.

The court held that the Secretary did not abuse her discretion in concluding that a supplemental EIS was unnecessary. The changes contained in the FEIS: (1) were qualitatively considered through a no-mitigation alternative; (2) were a secondary aspect of the EIS; (3) reduced overall an adverse environmental impact; and (4) did not alter the project’s cost-benefit analysis. Additionally, the FEIS and the record of decision sufficiently considered potential mitigation measures.

The court also held that the decision to discuss only one alternative—no action—was not arbitrary and capricious. NEPA does not require discussion of a minimum number of alternatives; the number depends on the stated goal of the project. The FEIS compared the project to only one alternative because the project was a negotiated agreement. Discussing a hypothetical alternative that no one had agreed to or would likely agree to, the court reasoned, would have been unhelpful.

The court also found the EIS sufficiently discussed air quality, reclamation, and growth-inducing impacts.

Finally, the court addressed plaintiffs’ Clean Air Act claims. The court noted that neither federal nor state conformity rules (which prohibit the authorization of activities that do not conform with an approved implementation plan) identify the form an agency must use when deciding whether a project necessitates a full-scale conformity determination. Here, the Secretary announced her decision that a conformity determination was unnecessary in the FEIS. The court stated that an agency need not prepare a stand-alone document explaining that decision. Furthermore, the Secretary did not abuse her discretion by concluding that Interior Department actions would not directly cause PM10 emissions. The project only committed the Secretary to changing the delivery point of Colorado River Water; any actions would occur at dams far from those diversion points.

The court affirmed the judgment of the district court.

Ninth Circuit Issues Injunction for Oregon Logging Project

League of Wilderness Defenders / Blue Mountains Biodiversity Project v. Connaughton (May 8, 2014) 14 C.D.O.S. 5102.

Plaintiffs League of Wilderness Defenders / Blue Mountain Biodiversity Project and the Hells Canyon Preservation Council sought to enjoin logging in the Snow Basin project area, which covers 29,000 acres of the Whitman-Wallowa National Forest in northeast Oregon, on the theory that the U.S. Fish and Wildlife Service had violated NEPA and the federal Endangered Species Act (ESA).  The district court denied the preliminary injunction, holding that plaintiffs were not likely to succeed on any of their claims and that the balance of harms did not tip sharply in their favor.  But, on May 8, 2014, the Ninth Circuit Court of Appeals reversed in part and remanded, holding that plaintiffs had satisfied the Winter v. Natural Resources Defense Council test for preliminary injunctions.

Likelihood of Success on the Merits

The first prong of the preliminary injunction test asks whether there is a likelihood of success on the merits.  The Ninth Circuit found that plaintiffs were likely to succeed on the merits of one of their claims. The project’s Environmental Impact Statement (EIS) had reviewed the logging project’s potential environmental impacts on elk and their habitat, assuming that the US Forest Service’s Travel Management Plan, which regulated off-road motorized travel and reduced the number of roads within the forest, would be in place.  The plan, however, was subsequently withdrawn.  The court found that plaintiffs would likely prevail on their claim that the Forest Service must prepare a supplemental EIS to analyze the project’s impact on elk independent of the plan.  An accurate analysis based on up-to-date information, the court said, was key to informed public participation and proper functioning of NEPA.

Plaintiffs did not successfully show that they would be likely to prevail on their second claim that 130 acres of the project area warranted a cumulative impacts analysis.  The Ninth Circuit found that the Forest Service’s actions in that section were speculative and the environmental effects inchoate.  Nor did plaintiffs show any likelihood of success on their claim that the EIR should have analyzed the cumulative effects of stream temperatures on fish in the project region.  The court noted that the project would not impact stream temperatures, therefore any thermal stress on the fish was part of the project’s environmental baseline.  The court also rejected plaintiffs’ argument that the EIS’s reliance on aged studies was arbitrary and capricious, since no reliable evidence showed that the results of those studies were incorrect or that the status of bull trout in the project area had changed over time. Finally, the court upheld the agencies’ determination that bull trout were likely extirpated from the project area, finding that the agencies had conducted a reasonable reading of ambiguous evidence.

Likelihood of Irreparable Harm

The second prong of the preliminary injunction tests looks to the likelihood of irreparable harm absent issuance of the injunction.  The court noted that environmental harms can seldom be remedied by money damages and are often permanent or irreparable.  The logging of mature trees in particular cannot be remedied easily, if at all, as neither the planting of new seedlings nor the payment of money damages can fully repair such harm.  The court noted that it had upheld or granted injunctions in cases involving only smaller trees and in areas that had previously been logged.  There was sufficient likelihood of irreparable harm here, therefore, to support a preliminary injunction.

Balance of Equities

Having determined there was a likelihood of success on the merits and a likelihood of irreparable harm, the court then looked to whether the balance of equities tipped in plaintiffs’ favor.  The court took into account both economic and environmental interests, but concluded that the balance tipped in favor of the environmental harms since those would be permanent, whereas the economic setbacks would only be temporary.  The economic harm of the preliminary injunction would be the value of moving jobs and tax dollars to a future year — a harm the court considered “marginal.”

Interest to the Public

The final prong in the test for a preliminary injunction is whether the injunction is in the public interest.  The Forest Service argued that the public interest would be harmed by a preliminary injunction because the risk of local forest fires and insect infestation would not be reduced unless the logging occured as planned.  The court, however, cited evidence that fire suppression was expected to continue and be highly successful if no action were taken, with the possibility of periodic insect outbreaks.  Without evidence of an imminent threat, the agency could not say that the inability to mitigate such risks for a temporary period outweighed the public’s interest in maintaining elk habitat and mature trees in the forest.  The public’s economic interest, the court added, would not be completely foregone but merely delayed while the injunction was in place.

The Ninth Circuit remanded the case to the district court to issue the preliminary injunction.  The court expressly declined to comment on the appropriate scope of that injunction.

Ninth Circuit Court of Appeals Rejects NEPA Challenge to High-Speed Rail Project in Hawaii

HonoluluTraffic.com v. Federal Transit Administration (9th Cir. 2014) __F.3d __ (Case No. 13-15277)

The litigation involved a challenge to a 20-mile, high-speed rail project that would traverse from the western portion of Oahu through the downtown area of Honolulu, Hawaii. After considering various long-range alternatives for federally funded transportation projects, the city of Honolulu ultimately focused on a “Fixed Guideway” public transport system for the project. The project was designed to improve transportation and relieve traffic congestion in Honolulu – a persistent problem and controversial topic in Hawaii and on the island of Oahu in particular.  According to the Ninth Circuit’s opinion, Honolulu is the second-most congested metropolitan area in the nation.

Plaintiffs were a consortium of interest groups and individuals opposing the project. They filed the action in 2011 against FTA, the U.S. Department of Transportation, the city and county of Honolulu, and various federal and local administrators. Plaintiffs raised challenges under the NEPA and other federal laws.  The district court granted summary judgment to the defendants on the NEPA claims and the Ninth Circuit affirmed.

Plaintiffs’ challenges under NEPA were directed principally at the choice of the steel-wheel-on-steel-rail Fixed Guideway system for the project.  Plaintiffs claimed that the defendants unreasonably restricted the project’s purpose and need and did not consider all reasonable alternatives as required under NEPA and its regulations.

The court first addressed Plaintiffs’ argument that the project objectives stated in the EIS were too narrow. Plaintiffs argued that the objectives were so narrowly defined that only one alternative would accomplish them, and therefore, there was no real consideration of alternatives.  The Ninth Circuit disagreed.  The court noted that the project objectives, as stated as the purpose and need statement in the EIS, were defined in accordance with the statutorily mandated transportation plan that preceded the EIS – the 2004 Oahu Metropolitan Planning Organization, Regional Transportation Plan (“2004 ORTP”).  The 2004 ORTP had concluded that a high-capacity, high-speed transit project connecting west Oahu with downtown Honolulu was necessary to implement Oahu’s land use policies. It also identified the Fixed Guideway system as a central component of that plan.  The court held that, viewed in its statutory context, the project’s objectives were not so narrowly defined that only one alternative would accomplish them.  The statement of purpose and need was broad enough to allow the agency to assess various routing options and technologies for a high-capacity, high-speed transit project.  The Ninth Circuit, therefore, agreed with the district court’s conclusion that “because the statement of purpose and need did not foreclose all alternatives, and because it was shared by federal legislative purposes, it was reasonable.”

The court next addressed Plaintiffs’ claim that the EIS did not properly consider all reasonable alternatives and should have considered alternatives that the state had earlier rejected.  Early in the process, the city had prepared an Alternatives Assessment (AA) to narrow the various alternatives that would be included in the EIS.  The Ninth Circuit noted that an AA may be used as part of the NEPA process as long as it meets certain requirements. Because those requirements were satisfied, the court found no problem with the AA.  The court also noted that alternatives that were previously rejected by an agency in prior studies do not need to be discussed in an EIS.  According to the court, Plaintiffs’ real quarrel was not with the use of an AA generally, but rather that the process failed to consider Plaintiffs’ proposed three-lane Managed Lanes Alternative (a new roadway for busses and other high-occupancy vehicles).  A similar alternative, however, had been considered and rejected in the AA for cost reasons.  The court determined that the cost analysis in the AA was reasonable and that the three-lane Managed Lanes Alternative would be even more costly than the alternative rejected in the AA.  Therefore, the court held that three-lane Managed Lanes Alternative did not need to be included in the EIS.

Plaintiffs’ final argument was that the defendants had improperly excluded a light-rail alternative from the EIS.  The court determined, however, that the defendants properly relied on the AA to reject alternatives including light-rail.  Ultimately, the court held that the EIS’s identification of project objectives and analysis of alternatives satisfied NEPA’s requirements.

NEPA/CEQA Project Integration Handbook Available for Public Comment

The Governor’s Office of Planning and Research (OPR) and the White House Council on Environmental Quality (CEQ) are soliciting input on the public review draft of “NEPA and CEQA: Integrating State and Federal Environmental Reviews.” The handbook strives to improve efficiency, transparency and coordination in the joint environmental review process, in order for federal and state agencies to continue to pursue shared goals and to meet the requirements of both statutes. This draft handbook identifies key similarities and differences between the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) and provides suggestions to assist agencies, project applicants, and members of the public in identifying early on the potential coordination challenges that may arise during the environmental review process and in enhancing effective participation in review. Developing a common understanding of the NEPA and CEQA review processes and their differences at the beginning of a joint review process will assist agencies in avoiding delay. The draft handbook also provides a framework for a memorandum of understanding (MOU) between two or more agencies entering into a joint NEPA/ CEQA review process. Finally, the handbook summarizes and compares NEPA with the California Energy Commission’s licensing process.

The draft is open for public comment until April 19, 2013 at 5:00 p.m. Eastern Time.

The draft handbook identifies specific opportunities for coordinating NEPA and CEQA review and states the following goals:

  • Encourage federal agencies to choose one lead agency to work with a CEQA co-lead agency;
  • Encourage federal and California agencies to conduct public hearings, public comment periods, and final review periods jointly where possible;
  • Recommend that federal and California agencies develop a joint public review timeline that incorporates the applicable public participation requirements under both statutes;
  • Suggest that federal and California agencies preparing a joint EIS/EIR include a section in each impact analysis that makes a CEQA significance determination; and
  • Recommend that agencies preparing a joint EIS/EIR select a range of alternatives broad enough to meet CEQA requirements and discuss them at a level of detail that would meet NEPA requirements. 

The draft handbook also includes information for agencies planning to enter into a MOU to guide a joint NEPA/CEQA process. A MOU can define the roles of each agency and establish the framework of the environmental review. The draft handbook suggests that MOUs be used to address issues such as which agency will communicate with the applicant, allocating the responsibility for reviewing and responding to public comments, and determining the applicable time frames and milestones. MOUs can also define how the agencies will resolve disagreements. 

The draft NEPA/CEQA handbook is a comprehensive project planning resource for agencies and proponents of projects in California that require federal approval. 

The Handbook is available here: http://opr.ca.gov/docs/NEPACEQAHandbookMarch2013.pdf

Comments may be submitted here: http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/submit