Tag: thresholds of significance

Fifth District Holds Kern County’s Ordinance for Streamlining Oil and Gas Well Permits Must Be Set Aside Due to Multiple CEQA Violations, Including Deferred Formulation of Mitigation Measures and Failure to Use Proper Threshold of Significance for Analyzing Noise Impacts

In King and Gardiner Farms, LLC v. County of Kern et al. (2020) 45 Cal.App.5th 814, the Fifth District Court of Appeal held that the County of Kern must rescind its approval of a gas and oil ordinance that would streamline the County’s permitting process for new oil and gas wells. In the published portions of the decision, the court held: (1) the mitigation measures for the ordinance’s significant impacts to water supplies impermissibly deferred formulation of the measures or delayed the actual implementation of the measures and the EIR’s discussion of the effectiveness of the mitigation measures was inadequate; (2) the County’s finding that the ordinance’s conversion of agricultural land would be mitigated to a less-than-significant level was not supported by substantial evidence because, among other things, the mitigation measures allowed for conservation easements, which do not constitute actual mitigation; (3) the County inappropriately applied a single threshold for determining the significance of the project’s noise impacts; and (4) the County must rescind the ordinance and not re-approve the ordinance until the County has complied with CEQA.

Background

In November 2015, the Kern County Board of Supervisors approved an ordinance to streamline the permitting process for new oil and gas wells and certified an EIR for the ordinance. Because some of the impacts of the ordinance would be significant and unavoidable, the Board of Supervisors adopted a statement of overriding considerations, finding that the ordinance’s benefits outweighed its significant environmental impacts.

A private farm (KG Farms) and a group of environmental organizations, including Sierra Club, filed petitions for writ of mandate alleging that the County violated CEQA and the State Planning and Zoning Law in approving the ordinance. The trial court held that the EIR violated CEQA regarding impacts on rangelands and from paving as an air pollutants mitigation measure. The petitioners appealed, arguing that the County violated CEQA in additional respects. The Court of Appeal agreed with the petitioners.

Water Supply Mitigation Measures

The County’s EIR concluded that the ordinance would have a significant and unavoidable impact on water supplies because implementation of the ordinance would deplete the County’s municipal and industrial water supplies. To mitigate this impact, the EIR proposed several mitigation measures. One measure provided that, to the extent feasible, applicants for permits under the ordinance shall increase or maximize the re-use of produced water. Produced water is groundwater that naturally occurs in oil and gas reservoirs brought to the surface with the extracted oil and gas and separated from the hydrocarbons after extraction. The Court of Appeal held that the requirement for applicants to increase or maximize their use of produced water violated CEQA because it merely set forth a generalized goal, rather than establishing specific performance standards that must be met. The court opined that were it to hold such a measure satisfied CEQA, lead agencies and project proponents—aware of the court’s precedent—would have scant incentive to define mitigation measures for other projects in specific terms. Instead, planning documents or ordinances adopted by local governments could merely state that permit applicants must reduce environmental impacts to the extent feasible. Allowing such an approach, the court reasoned, would undermine CEQA purpose of “systematically identifying” feasible mitigation measures that will reduce environmental impacts. (See Pub. Resources Code, § 21002.)

Another provision of the County’s water supply mitigation required that the five biggest oil industry users of municipal and industrial water work together to develop and implement a plan identifying new measures to reduce municipal and industrial water use by 2020. The court held that this mitigation measure—which unquestionably deferred formulation of mitigation—violated CEQA because it lacked specific performance standards to include in the plan. Moreover, the measure did not commit the County to the measures ultimately included in the plan. Further, it assigned the duty to implement the measure to unidentified third parties who might not agree to participate in the task or who might not act in good faith. Yet another flaw with this mitigation measure was that the plan was not required to be developed until 2020, whereas the ordinance took effect in 2015. Thus, the measure allowed permits for oil and gas activities to be issued without being subject to the measures contained in the plan. Accordingly, the measure violated the CEQA principle against delayed implementation of mitigation measures.

Another mitigation measure adopted by the County specified that “[i]n the County’s required participation for the formulation of a Groundwater Sustainability Agency [pursuant to the Sustainable Groundwater Management Act (Senate Bill 1281)], the Applicant shall work with the County to integrate into the Groundwater Sustainability Plan for the Tulare Lake-Kern Basin, best practices from the oil and gas industry to encourage the re-use of produced water from oil and gas activities.” The mitigation measure set a re-use “goal” of 30,000 acre-feet per year. The Court of Appeal held that this mitigation measure violated CEQA because the groundwater sustainability plan mentioned in the measure must be adopted by January 31, 2020—four years after the ordinance was approved.  Therefore, the measure was improperly deferred. Furthermore, the goal of re-using 30,000 acre-feet per year of produced water was merely a goal, and not an enforceable commitment, as required by CEQA.

The Court of Appeal further held that because the water supply mitigation measures were of unknown effectiveness, in order for the County to properly adopt a statement of overriding considerations under CEQA, the EIR must “(1) describe the mitigation measures that are available (i.e., currently feasible) and (2) identify and explain the uncertainty in the effectiveness of those measures.” The court reasoned that such a requirement is mandated by the general rule that an EIR must alert the public and decisionmakers of the significant problems a project would create and must discuss currently feasible mitigation measures.

Agricultural Mitigation

The County’s EIR found that, without mitigation, the project has the potential to convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance to non-agricultural use because the ordinance would allow oil and gas activities, including new wells, to be located on agricultural lands. The EIR concluded, however, that, with mitigation, this impact would be reduced to less than significant. The mitigation measure adopted by the County for this impact allowed permit applicants to comply by adopting one or more of four options (a through d). The court held that because not all of the options constituted adequate mitigation under CEQA, the County lacked substantial evidence to support its conclusion that the ordinance would have a less-than-significant impact on agriculture.

In particular, option “a” of the agricultural mitigation measure authorized the use of agricultural conservation easements at a 1:1 ratio (one acre of agricultural land conserved for every one acre converted to non-agricultural uses). The court held that conservation easements do not constitute adequate mitigation because they do not create new agricultural land to replace the agricultural land being converted to other uses. Rather, conservation easements simply prevent the future conversion of the agricultural land. In other words, conservation easements do not actually offset a project’s impacts on agriculture. Accordingly, the inclusion of option “a” in the agricultural mitigation measure rendered the mitigation measure ineffective.

Option “b” of the agricultural mitigation measure allowed for the purchase of conservation credits from an established agricultural mitigation bank. The court agreed with the petitioners that there was no evidence in the administrative record that such banks existed. Thus, the record lacked substantial evidence to support a finding that this option would actually mitigate agricultural impacts. Therefore, it was not sufficient mitigation under CEQA.

The court also concluded that the County had failed to adequately respond to comments suggesting that the County adopt a mitigation measure requiring the clustering of wells so that fewer acres of agricultural lands would be converted under the ordinance. The County’s response to such comments noted that the County’s General Plan includes a policy requiring the clustering of wells, but the response did not specifically address the feasibility of adopting a mitigation measure requiring well clustering. Therefore, court concluded that the County’s responses to comments failed to comply with the requirements of section 15088, subdivision (b) of the CEQA Guidelines, which require a “reasoned analysis” in response to comments raising “significant environmental issues.”

Noise Thresholds of Significance

To determine whether implementation of the ordinance would cause significant noise impacts, the County used a quantitative threshold of 65 dBA DNL, meaning that the ordinance would not cause a significant noise impact if noise levels stayed below that threshold. The court held that the County’s use of a single threshold violated CEQA because the threshold did not measure the increase in noise levels over ambient levels. Comments on the EIR, as well as the County’s own noise report that was appended to the Draft EIR, suggested using an increase of 5 dBA to determine whether the increase in noise above ambient levels constituted a significant impact. For unexplained reasons, the County did not do so. Instead, the County argued that it was entitled to substantial deference in selecting the significance thresholds. Although the court agreed that the County is entitled to deference in its choice of significance thresholds, the court held that the County’s use of an absolute noise threshold for evaluating all ambient noise impacts violated CEQA because it did not provide a “complete picture” of the noise impacts that may result from implementation of the ordinance.

Remedy

The County requested the court to exercise its equitable powers, which include the power to order the status quo preserved, and allow the ordinance to remain in effect while the County corrects the deficiencies in the EIR and mitigation measures. The court declined to do so. The court reasoned that the usual remedy in a CEQA case is to order the respondent to rescind its approvals; the court saw no reason not to do so in this case. Unlike other cases that allowed an ordinance that benefited the environment to remain in place, the oil and gas permitting ordinance was not adopted for the benefit of the environment.

The court also directed that the new EIR prepared by the County should include updated baselines for the water supply and air quality analyses because conditions have changed since the County issued the notice of preparation (NOP) of the original draft EIR that warrant updating the baseline.

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.

 

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.

Third District Court of Appeal Finds EIR’s Greenhouse Gas Analysis for Wal-Mart Super Center Deficient for Improper Application of Significance Threshold

In Friends of Oroville v. City of Oroville, ___Cal.App.4th ___ (Aug. 19, 2013, Case No. C070448), the Third District Court of Appeal ruled that the City of Oroville misapplied the threshold-of significance standard in Assembly Bill 32 (the California Global Warming Solutions Act of 2006) when it approved an EIR for a new Wal-Mart Supercenter. In the published portion of the opinion, the court found that the city identified the proper significance threshold for the Wal-Mart project’s greenhouse gas (GHG) emissions. But the court held that the city failed to apply the standard properly because it a) applied a “meaningless” number to determine insignificant impact and b) failed to ascertain the existing GHG emissions for the project. The case provides clear guidance for an agency making a determination under CEQA of GHG emissions impacts.

The project involved the relocation and expansion of an existing Wal-Mart store. At the time the EIR was developed, neither the city nor the Butte County Air Quality Management District had adopted a plan for reducing greenhouse gas emissions that would be applicable to the project. Therefore, the city adopted a standard that asked whether the project would “significantly hinder or delay” California’s ability to meet the reduction targets in Assembly Bill 32, which seeks to reduce greenhouse gases including carbon dioxide to 1990 levels by the year 2020. The EIR noted that the State Air Resources Board’s Scoping Plan for achieving that goal calls for cutting approximately 30 percent from “business-as-usual” emission levels projected for 2020. The court found this standard proper.

The city’s error came when it compared the project’s estimated carbon dioxide emissions at build-out with the entire state of California’s 2004 GHG emissions. The calculation showed the project’s emissions constituted just 0.003 percent of the state’s total emissions. The EIR concluded the impact was less than significant because it would not significantly hinder or delay California’s ability to meet the GHG reduction targets in Assembly Bill 32. In a sharp rebuke, the court called the comparison “meaningless” and “worse than apples to oranges” because “[o]f course, one store’s GHG emissions will pale in comparison to those of the world’s eighth largest economy.”

The court pointed to Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327, for the proper application of the standard. According to the court, the relevant question is whether a project’s emissions should be considered significant “in light of the threshold-of significance standard of Assembly Bill 32, which seeks to cut about 30 percent from business-as-usual emission levels projected for 2020 [emphasis added].”

The court also found the EIR deficient because it failed to ascertain or estimate the effect of the project’s mitigation measures on GHG emissions. The court stated: “Without these determinations, ascertaining whether AB 32’s target reductions are being met is difficult if not futile.” In its disposition, the court reversed the trial court’s denial for writ of mandate and remanded with directions to grant the petition as to the issue of greenhouse gas emissions and payment of transportation-related fees.
[written by Deb Kollars]

First District Holds That Air District’s Adoption of Significance Thresholds for Greenhouse Gas Emissions Is Not a CEQA Project and Does Not Require an EIR

In California Building Industry Association v. Bay Area Air Quality Management District (August 13, 2013, Case No. A136212) ___ Cal.App.4th ___, the First District Court of Appeal reversed a trial court’s decision striking down the Bay Area Air Quality Management District’s (BAAQMD’s) CEQA thresholds of significance for greenhouse gas emissions. The appellate court held that CEQA does not require BAAQMD to prepare an environment impact report (EIR) before adopting “thresholds of significance” to assist in the determination of whether air emissions of proposed projects might be deemed “significant.”

On June 2, 2010, BAAQMD adopted CEQA thresholds of significance for greenhouse gas emissions. The thresholds also set standards for impacts related to toxic air contaminants (TACs) and very small particulate matter (PM2.5). The thresholds were adopted pursuant to CEQA Guidelines section 15064.7, which encourages agencies to “develop and publish thresholds of significance” for “general use as part of the lead agency’s environmental review process.” The section further mandates that the thresholds be “adopted by ordinance, resolution, rule, or regulation, and developed through a public review process and be supported by substantial evidence.”

The California Building Industry Association (CBIA) filed a petition for writ of mandate challenging BAAQMD’s adoption of the thresholds. CBIA argued the issuance of the thresholds was a “project” under CEQA, and that BAAQMD had violated CEQA by not preparing an EIR before adopting the guidelines. CBIA claimed the thresholds were too stringent and would discourage developers from building desirable urban infill projects close to public transportation by making the CEQA review process more burdensome and expensive. This, in turn, would result in more housing being built in the suburbs, causing more commuter traffic and more traffic-related emissions. This increased pollution, CBIA argued, was an adverse impact mandating preparation of an EIR.

The Alameda County Superior Court agreed, ruling that the adoption of the thresholds was a project under CEQA and entered an order awarding the CBIA substantial attorney fees under Code Civil Procedure section 1021.5.

The First District Court of Appeal reversed, reasoning that (1) the district’s adoption of thresholds was not a “project” within the meaning of CEQA and (2) there were no reasonably foreseeable impacts associated with this action.

CEQA defines a project as any activity “which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Res. Code, § 21065.) The appellate court concluded that the adoption of thresholds was not a project. BAAQMD relied on CEQA Guidelines section 15064.7 in promulgating the thresholds. The court explained that section 15064.7 establishes the procedures for adopting thresholds in some detail, and CEQA review is not part of that procedure. Section 15064.7, subdivision (b), provides that thresholds of significance must be formally adopted through a public review process and supported by substantial evidence if, as in this case, they are to be placed in general use. The agency accepted public comments and responded to comments. Striking an uncommon tone, the court concluded that this process was substantially similar to the EIR process and that requiring more would be a duplicative effort and a waste of tax dollars.

The court noted in any event, the action was not a “project” because the activity would not cause a direct physical change in the environment or a reasonably foreseeable indirect physical change. (Pub. Res. Code, § 21065; CEQA Guidelines, § 15378, subd. (a).) CBIA argued that impacts were reasonably foreseeable because the thresholds were more stringent than earlier thresholds and would require a more thorough environmental analysis; as a result, the CEQA process would become more burdensome, making urban development less desirable and leading to more suburban development with all its attendant impacts including traffic and air quality impacts.

The court was not persuaded, instead reasoning that the analysis posited by CBIA included many assumptions and a great deal of speculation because “the extent to which land development projects might be relocated to a more suburban location would require a prescience we cannot reasonably demand of the [BAAQMD].” The court, therefore, concluded that no CEQA review was required before BAAQMD promulgated the thresholds.

In its petition for writ of mandate, CBIA raised several challenges to the substance of the thresholds that were not decided by the trial court. Though CBIA failed to cross-appeal, the appellate court agreed to consider the other two issues. First, CBIA argued that the standards were inappropriate in any event because they evaluated the effects of the environment on sensitive receptors as part of the project; this is contrary, it argued to the purpose of CEQA, which is to protect the environment from proposed projects, not protect the proposed projects from the existing environment. The court cited a long line of cases for this proposition, including the recent Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455. The court did not address whether Ballona, et al., were correctly decided, or whether, as a general rule, an EIR may be required solely because the existing environment may adversely affect future occupants of a project. Instead, finding CBIA’s claim that the receptor thresholds were unauthorized by CEQA analogous to a claim a statute or regulation is unconstitutional on its face, the court held that the regulations were not facially invalid because they were relevant for purposes other than determining the effects of the environment on the project. The court also suggested that continuing vitality of Ballona, et al., was better reserved for a case in which the receptor thresholds were actually applied to a project.

As to the second CBIA challenge not ruled on by the trial court, the First District concluded that BAAQMD’s TAC Single-Source and Cumulative Thresholds were supported by substantial evidence and upheld them.

In reversing the trial court’s judgment in CBIA’s favor and declining to grant the relief CBIA sought on the issues not resolved by the trial court, the court of appeal also reversed the substantial attorney’s fees award, concluding the industry association was no longer the successful party under Code of Civil Procedure Section 1021.5.