Tag: Public Trust

Court of Appeal Upholds EIR for Commercial Sand Mining Project but Remands for Failure to Comply With the Public Trust Doctrine

The First District Court of Appeal upheld the lower court’s determination in part and reversed in part, finding the State Lands Commission’s EIR for a sand mining project adequate, but holding that the Commission did not comply with the public trust doctrine when it granted mineral extraction leases. (S.F. Baykeeper, Inc. v. Cal. State Lands Commission (November 18, 2015) ___Cal.App.4th ___, Case No. A142449.)

In 2014, the State Lands Commission approved the San Francisco Bay and Delta Sand Mining Project, which granted 10-year extensions of mineral extraction leases for dredge mining for marine aggregate sand under the San Francisco Bay. The lease parcels are all on sovereign lands owned by the State of California and are subject to the public trust.

The Commission published a Notice of Preparation in 2007 and released a draft EIR in 2010. Then, in 2011, using a new five-year average baseline against which the EIR measured environmental impacts, the Commission recirculated a revised draft EIR. In 2012, the Commission published a final EIR and a statement of overriding considerations, and approved a reduced project alternative. San Francisco Baykeeper, Inc. filed a petition for writ of mandate alleging that the Commission failed to comply with CEQA and violated the common law public trust doctrine.

Baykeeper argued that the Commission’s use of a five-year average baseline was improper and that the EIR should have used data from 2007, the year of publication of the NOP. The court, however, held that substantial evidence in the record, including data and statistics showing a significant decrease in production of construction aggregate in 2007, supported the baseline in the EIR.

The court also rejected Baykeeper’s arguments with respect to cumulative impacts from sand mining on erosion. The EIR determined that the project would have less-than-significant impacts because sand mining is not likely to cause measurable sediment depletion outside of mining areas. The draft EIR recognized studies suggesting that sand mining in the Bay contributes to erosion on beaches, but found no direct or empirical causal link. But after receiving numerous comments on this issue, the Commission conducted further analysis including new modeling and a review of two additional scientific articles. Again, the Commission found that there was no causal link, and determined in the final EIR that the project would have less than significant impacts on erosion. The court upheld this determination, rejecting Baykeeper’s argument that the Commission improperly used a ratio theory, as that was only one component of the analysis in the EIR and simply reinforced the Commission’s previous conclusions. Further, the court found that the new studies and analysis did not require recirculation because they did not change any of the substantive conclusions in the DEIR and did not significantly alter the main points of disagreement.

The court then turned to the Commission’s interpretation of CEQA Guidelines appendix G thresholds regarding mineral resources. The Commission interpreted the thresholds to question whether the project would interfere with important mineral resource deposit areas that should be conserved for purposes of extraction and not lost to an incompatible use, whereas Baykeeper posited that the EIR should have analyzed whether the project would deplete the mineral resource. The court pointed out that appendix G thresholds are only suggested and lead agencies have the discretion to develop their own thresholds. In addition, the court said that the Commission’s interpretation was supported by state policies regarding mineral extraction, and Baykeeper failed to provide any authority supporting a different interpretation.

Baykeeper also argued, and the court agreed, that the Commission did not properly provide notice to, nor properly consult with, the Coastal Commission or the City of San Francisco. The court emphasized that such a violation “requires reversal only upon proof of prejudice,” and found that Baykeeper failed to identify any information that would have been provided by these agencies but was omitted from environmental review as a result of the Commission’s notice and consultation violations. In fact, Baykeeper did request that the court take judicial notice of a 2015 letter regarding the project, but the court declined to do so because this did not constitute material information that was actually available when the Commission conducted its review. According to the court, because Baykeeper failed to demonstrate that pertinent information was omitted from the review process, the court could not find that the violation of notice and consultation requirements was prejudicial.

Finally, the court turned to the public trust doctrine and concluded that the Commission had an affirmative duty to consider whether the granting of private sand mining leases constitutes a permissible use under the doctrine, and the Commission failed to comply with that duty. The parties agreed that the project authorized the private use of land that is protected by the public trust, and that the Commission did not make any findings pursuant to the doctrine. The court rejected a series of arguments from the Commission, finding in part that it does not have “unfettered discretion to prefer sand mining as a preauthorized public trust use of the lease parcels.” Further, the court held that conducting a CEQA review alone does not fulfill obligations of the public trust doctrine. Thus, the court held that the Commission failed to conduct the required public trust analysis and remanded accordingly.

First District Upholds State Lands Commission’s Use of Environmental Baseline for Renewal of Existing Marine Terminal Operations

Citizens for East Shore Parks v. California State Lands Commission
(2011) – Cal.App.4th – [2011 Cal. App. LEXIS 1645]

The First District Court of Appeal ruled that an EIR prepared by the State Lands Commission for the renewal of an existing marine terminal used a proper environmental baseline in assuming the continued existence and operation of the terminal; thus, the EIR did not need to assume the terminal would discontinue operations, even though that would occur if the Commission did not renew the lease.

In 1998, Chevron applied to the State Lands Commission to renew the lease for an existing wharf serving Chevron’s refinery located in the City of Richmond.  The Commission embarked on the CEQA process.  Initially, the Commission decided to prepare the EIR assuming that the physical wharf would remain in place, but that operations there would cease.  Over time, the Commission’s position evolved, such that the “baseline” would consist not merely of the physical wharf, but also of ongoing operations.  Using this baseline, the Commission determined the lease renewal could result in significant environmental impacts associated with the risk of oil spills.  In 2007, the Commission released the Final EIR.  In 2009, the Commission certified the EIR, approved the lease renewal, and adopted a statement of overriding considerations.  The “Citizens” sued.  The trial court denied the petition.  The Citizens appealed.

First, the Citizens argued the Commission’s EIR used the wrong baseline, claiming the baseline should have excluded use of the marine terminal.  In this case, the baseline consisted of “existing conditions” at the time the Commission prepared the EIR.  Those conditions included an operating marine terminal.  The Citizens argued, however, that a different rule applied in the context of a permit renewal, since the agency could cause operations to cease simply by declining to renew the lease.  Moreover, because the construction and operation of the terminal predated CEQA, they had never undergone environmental review.  The Court rejected this argument, reasoning that, under the California Supreme Court’s decision in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, the Commission properly focused on existing conditions, not conditions that may have existed decades in the past.  The record showed the Commission’s approach was consistent with permit renewals elsewhere in the Bay Area, and accurately reflected actual operations at the terminal.  Nor was the Commission bound by its initial determination regarding the proper baseline:  “Administrative agencies not only can, but should, make appropriate adjustments, including to the baseline, as the environmental review process unfolds.”

Second, the Citizens argued the EIR should have analyzed an alternative consisting of removing the causeway connecting the terminal to the refinery, and instead burying pipelines.  According to the Citizens, such an alternative would have avoided the project’s impacts on recreation by removing an obstruction to a bay trail.  The Court disagreed, noting that because the causeway was part of the baseline, the EIR properly concluded the lease renewal would not have significant impacts on recreation.  Similarly, the Final EIR’s responses to comments on recreational impacts were adequate, since the lease renewal did not involve new construction that would impact recreation.

Third, the Citizens argued the EIR’s project description should have encompassed the entire refinery, rather than just continued use of the marine terminal.  The evidence showed, however, that the lease renewal was the only action before the Commission, and the Commission had not “chopped up” the project as a means of evading CEQA review.

Fourth, the Citizens argued the EIR’s analysis of cumulative water discharge impacts was flawed.  The Court disagreed, noting that water discharges were part of the existing wharf operation, and therefore part of the baseline.  For the same reason, the EIR did not need to analyze whether the lease renewal was consistent with State legislation calling for establishing a “water trail” around San Francisco Bay.  Moreover, the EIR noted plans to establish a land-trail around the Bay, passing through upland areas adjacent to the terminal.  The Commission urged discussions to establish a route through the refinery for this trail, and Chevron designated a site and committed $2 million to this effort.  Given that the Commission had no jurisdiction over upland areas, the Commission’s efforts sufficed.  The record also showed the Commission consulted with trustee agencies by sending the agencies copies of the Draft EIR.

Finally, the Citizens argued that, under the Public Trust Doctrine, the Commission was required, to undertake an additional review process and impose additional mitigation conditions.  The Court disagreed, holding that, where the Commission’s decision “continued a permissible and long-standing trust use” and the Commission performed an adequate analysis under CEQA, “there was no violation of the public trust doctrine.”