Thomas Law Blog

CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts from February, 2012


Court Holds Res Judicata Bars NEPA and ESA Challenges to Guidelines Adopted by State Department

Tuesday, February 21st, 2012

In Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, the Ninth Circuit Court determined that res judicata barred Turtle Island Restoration Network (“TIRN”) from bringing a challenge under the National Environmental Policy Act (“NEPA”) and Endangered Species Act (“ESA”) because an organization for which TIRN was formally a member, the Earth Island Institute (“EII”), should have raised the NEPA challenge during a prior lawsuit. In the prior lawsuit, EII did not bring any NEPA challenge; EII instead alleged that the guidelines adopted by the United States Department of State (“State Department”) were inconsistent with law. In the new litigation, TIRN argued that the State Department failed to comply with NEPA and ESA in approving the guidelines.

Res judicata only applies where there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties. In this case, the only disputed issue was whether there was “an identity of claims.” A court must consider four factors in answering this question: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. The Court focused on the fourth question. The Court found that EII and TIRN could have conveniently brought claims for NEPA and ESA violations when it filed its prior complaint. The Court stated that a party’s decision not to advance NEPA and ESA claims in an asserted effort to resolve the issues without litigation is not an excuse for failing to raise the claims during prior litigation. The Court acknowledged that the two actions may be procedurally different, but reiterated that both arise from the government’s regulation of shrimp imports to encourage foreign turtle-safe shrimp harvesting. Therefore, the Court held that the two suits arose out of the same transactional nucleus of facts. Res judicata barred the NEPA and ESA challenges that TIRN could have brought in its prior complaint.

Key Points:

Res judicata may bar a petitioner from bringing NEPA and ESA challenges based on an agency’s alleged pattern and practice of violating the Acts if the petitioner could have asserted these challenges in prior litigation.

Written By: Tina Thomas and Chris Butcher

___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Applying the Fair Argument Test, Court holds that Construction of a Large Single-Family Home was Not Exempt from CEQA Because the Unusual Circumstances Exception Applied

Tuesday, February 21st, 2012

In Berkeley Hillside Preservation v. City of Berkeley (2011) 2012 Cal. App. LEXIS 141, the Berkeley Zoning Adjustment Board (Board) determined that a new roughly 10,000 square foot home in the Berkeley hills was categorically exempt from CEQA pursuant to (1) the Infill Development Exemption and (2) the New Construction / Conversion of a Small Structure Exemption. The Board also determined that none of the exceptions to the CEQA exemptions applied.

Petitioners filed an administrative appeal. During the administrative appeal, the city received a number of comment letters including two letters from a geotechnical engineer with over 50 years of experience concluding that the slope of the property, the need for massive grading, and the proximity to the Hayward fault established that the project would have very significant effects on the environment both during and after construction. Another geotechnical engineer disagreed with the above conclusions, and after allowing testimony from both engineers during the appeal hearing, the city council affirmed the decision to approve the use permits to construct the home. Thereafter, petitioners filed a petition for writ of mandate challenging the city’s approval of the use permits.

On appeal from the trial court ruling upholding the city’s actions, petitioners conceded that the project is subject to the two CEQA categorical exemptions asserted by the city. Petitioners argued, however, that the “unusual circumstances” exception to the exemptions applied and prevented the city from relying on the exemptions. The court agreed, holding that “a categorical exemption does not apply where there is any reasonable possibility that proposed activity may have a significant effect on the environment.” The “unusual circumstances” exception can apply to a project that is not unusual; the existence of substantial evidence supporting a fair argument that a project normally exempt from CEQA may result in a significant environmental impact is itself an “unusual circumstance” prohibiting use of a categorical exemption. Nevertheless, the court stated that it may be helpful to first analyze whether the project is unusual in considering whether the “unusual circumstances” exception applies to a project.

Relying on the “fair argument” test, the court concluded that the administrative record included substantial evidence supporting a fair argument that the project is both unusual and would result in significant environmental impacts. With respect to the project’s unusual nature, the court explained that petitioners demonstrated that the home would be one of the largest in the entire city. As a matter of law, the 10,000-square-foot home was unusual “because the circumstances of the project differ from the general circumstances of projects covered by the single-family residence exemption…” Next, the court found a reasonable possibility that the proposed construction will have a significant effect on the environment due to the unusual size to the project. Although the court acknowledged that a disagreement existed between geotechnical engineers, the court held that “contrary evidence is not adequate to support a decision to dispense with an EIR.” (Original emphasis.) The court, therefore, reversed the trial court’s judgment and ordered the lower court to issue a writ of mandate directing the city to prepare an EIR.

Key Points:

For a lead agency to rely on a categorical exemption in the face of opposition, the lead agency must determine that evidence in the record does not support a “fair argument” that the project may result in one or more significant environmental impacts. If such evidence can be found in the record, then the “unusual circumstances” exception applies and use of a CEQA exemption is improper. This case represents a shift from previous case law requiring a showing of substantial evidence to support an argument that unusual circumstances exist.
Additionally, in holding that the project’s “proximity to a fault” was evidence of an unusual circumstance, the opinion is inconsistent with Ballona Wetlands Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455. In Ballona Wetlands, the Court held that CEQA requires consideration of a project’s impacts on the environment and not consideration of the environment’s impact on a project (e.g. such as sea level rise or fault impacts on a project). Moreover, if “proximity to a fault” disqualifies a project from relying on CEQA exemptions, like the in-fill exemption, then most of the Bay Area will, as a practical matter, be unable to rely on CEQA exemptions for any projects.

Written By: Tina Thomas and Chris Butcher

___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Upholds EIR for a Wind Energy Project Despite the Conceptual Nature of the Project Description

Tuesday, February 21st, 2012

In an unpublished decision, Bedford v. Santa Barbara County, 2012 Cal.App.Unpub.LEXIS 886, the Second Appellate District upheld a trial court’s ruling denying a petition challenging the adequacy of an environmental impact report for a wind farm project in Santa Barbara County. First, the Court upheld the trial court’s determination that the Petitioners failed to exhaust their administrative remedies relating to the adequacy of the environmental baseline and propriety of deferring certain mitigation measures. The Court explained that objections must be sufficiently specific so that the lead agency has an opportunity to evaluate and respond to them. Here, Petitioners failed to meet this burden.

Second, the Court rejected Petitioners’ challenges to the project description concluding that while the project description was conceptual, it was sufficient for the purposes of CEQA review. In reaching its holding, the Court stated that “[i]t is true the precise location of the [wind turbine generators] is unknown. But the EIR’s analysis of visual impacts is based on the maximum potential impact that the project could have. In fact, it analyzes the maximum visual impact from [] public places…” The Court also rejected Petitioners’ argument that the project description must disclose the exact type of turbines the project would use. The Court found that by disclosing the maximum height and noise allowed, the project description was not required to disclose the type of generator that would be utilized.

Third, the Court held that the four alternatives included in the EIR constituted a reasonable range of alternatives and that the EIR was not required to analyze alternatives to components of the Project. The Court also explained that the EIR properly rejected certain alternative sites as infeasible “based on sound objective criteria such as the time necessary to develop alternative sites, and the inability of alternative configurations of the WTGs on the proposed site to generate sufficient electricity.”

Fourth, the Court found the noise analysis was supported by substantial evidence because it was based on the worst case scenario. Therefore, while exact noise levels are not known, the EIR properly evaluated the potential for the project to result in significant noise impacts.

Finally, the Court rejected Petitioners’ challenges relating to the Project’s consistency with local land use policies because the policies either were not mandatory or that mitigation included in the EIR ensured compliance.

Key Points:

CEQA requires that an EIR is commenced early in the planning process. Therefore, complete and final project details are not always known during preparation of an EIR. Here, the Court held that because the project description and impact analyses in an EIR for a wind energy project provided sufficient detail to consider the worst case scenario, the EIR complied with CEQA.

Written By: Tina Thomas and Chris Butcher

___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Applies Strict Interpretation of the Exhaustion Doctrine to Deny Challenges to a Mitigated Negative Declaration for a Small Housing Complex

Tuesday, February 21st, 2012

In an unpublished decision, Kentfield-Union Neighborhood Ass’n v. Redwood City Council, 2012 Cal.App.Unpub.LEXIS 736, the First Appellate District upheld the trial court’s ruling that the Redwood City Council complied with CEQA in preparing an initial study and adopting a mitigated negative declaration for a 21-unit housing complex in Redwood City (Project). In reaching its holding, the Court first concluded that changes to the City’s Zoning Code rendered moot Petitioner’s arguments concerning the Project’s consistency with the Zoning Code. The Court, however, declined to hold that the entire challenge was rendered moot by the Zoning Code amendments.

Next, the Court concluded that the Petitioner failed to exhaust its administrative remedies with respect to each of the four substantive challenges not rendered moot by the Zoning Code amendments. First, the Court explained that while Petitioner opposed the density of the Project, it did not challenge the adequacy of the project description in the initial study’s discussion of Project density. Second, the Court rejected Petitioner’s argument that an EIR was required based on exhaustion grounds. The Court stated that while the Petitioner requested further environmental review, the Petitioner never alleged that an MND was insufficient and that an EIR was required to comply with CEQA. Third, the Court rejected Petitioner’s challenge regarding the height of the Project because, while the Petitioner raised these objections during initial public hearings, it did not raise them during the administrative appeal. Lastly, the Court rejected Petitioner’s challenges relating to the Project’s impacts on pedestrian travel because Petitioner could only point to one vague sentence to support the conclusion that it exhausted on this issue.

Key Points:

While courts have not always applied exhaustion of administrative remedies in a consistent manner, this decision serves as a reminder that petitioners must be careful to clearly articulate their concerns during the administrative proceeding in order to ensure CEQA challenges are not dismissed for failure to exhaust administrative remedies.

Written By: Tina Thomas and Chris Butcher

___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Northern District Awards Attorney’s Fees at Enhanced Rate above EAJA Cap in a Case Against the U.S. Bureau of Land Management

Tuesday, February 21st, 2012

In Center for Biological Diversity, et al. v. U.S. Bureau of Land Management, et al., (2012 U.S. Dist. LEXIS 10555, January 30, 2012), the Court granted Plaintiffs’ attorneys’ fees in the amount of $1,003,155.87, despite Defendants claim that the fees were excessive.  Among other things, Defendants argued that the case was overstaffed,  travel time should not be compensated and hourly rates for paralegals and law clerks should not be compensated above the rates allowed in the Equal Access to Justice Act  (“EAJA”, 28 U.S.C. § 2412(d)).  First, the Court disagreed with the US. Bureau of Land Management’s (“BLM”) assertion that eight attorneys working at various times on a complex litigation matter was considered overstaffing.  Second, the Court also disagreed with BLM that enhanced rates for travel time should not be awarded, but capped at EAJA rates.  BLM argued that Plaintiffs cannot show that “specialized skills” were needed for travel time to support enhanced rates.  The Court, however, granted 33.3 hours of travel time at the enhanced rate because the record indicated that Plaintiffs’ attorney was working on the case during the travel time and thus, his “specialized skills” were required.  Finally, BLM argued that the rates claimed for paralegals and law clerks should not be compensated above the EAJA cap.  However, the Court noted that in Richlin Security Service Company v. Chertoff, 553 U.S. 571, 589 (2008), the Supreme Court rejected this very argument, holding that “a prevailing party that satisfies EAJA’s other requirements may recover its paralegal fees from the government at prevailing market rate.”

Key point:

Travel time can be awarded in an attorneys’ fee motion at an enhanced rate if an attorney can show that he or she was working during the travel time.

Written By: Tina Thomas and Michele Tong

___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Draft CEQA Guidelines Intended to Promote Infill Development May Prove to be too Cumbersome to Provide Real Benefits

Tuesday, February 21st, 2012

On January 25, 2012, the Governor’s Office of Planning and Research (OPR) released draft CEQA Guidelines to implement Senate Bill (SB) 226. Signed by the Governor last October, SB 226 promotes infill development by: (1) providing flexibility in project design by basing eligibility largely on environmental performance rather than prescribed project characteristics; and (2) avoiding repetitive environmental review where effects have already been analyzed at a programmatic level. Based on these policies, SB 226 directed OPR to develop a streamlined review process under the California Environmental Quality Act (CEQA) for qualified infill development projects.

In response, OPR has proposed new Guidelines section 15183.3, which would require that a project, in order to be eligible for streamlined review: (1) be located in an urban area on a site that has been previously developed or is surrounded by at least 75% urban uses; (2) satisfy the performance standards set forth in proposed Appendix M (described below); and (3) be consistent with the general use designation, density, building intensity, and applicable policies set forth in an applicable sustainable communities strategy (SCS).

Proposed Appendix M sets forth the specific performance standards that any infill project must achieve to qualify for streamlined CEQA review. As proposed, in addition to the requirements of proposed section 15183.3, to qualify, the project must: (1) incorporate renewable energy components (e.g., solar rooftops) where feasible; (2) include components that promote the use of transit or active transportation (e.g., walking, bicycling); (3) be consistent with the provisions of a plan for land uses surrounding any existing or proposed transit stations within one-half mile of the project site; and (4) in certain cases, undertake soil and water remediation.

Under proposed Appendix M, residential, commercial, retail, office and school projects would each be subject to additional performance standards. The performance standards rely heavily on reduction of vehicle miles traveled (VMT) as the measures of whether a project will qualify for the SB 226 streamlining.

If a lead agency is able to determine that an infill project qualifies under the requirements of section 15183.3 and the performance standards set forth in Appendix M, the agency will determine what level of streamlined review is appropriate for the project. The lead agency must consider whether the effects of the qualified infill project were addressed in a prior planning-level EIR (e.g., a general plan or specific plan EIR). If so, the agency must then determine whether the effects of the infill project fall within the scope of effects analyzed in the prior EIR.

If a “new specific effect” exists, the lead agency must determine whether such effects can be substantially mitigated by uniformly applicable development policies. If so, then the project need not be analyzed further and a notice of exemption may be posted. If not, an Infill EIR must be prepared. An Infill EIR may focus on those significant effects that have not been mitigated and that are new specific effects or are more significant than a prior EIR analyzed. The Infill EIR need not address grow-inducing impacts or alternative locations, densities or building intensities.

Key Points:

While the streamlined environmental review relying on analysis from previously approved EIRs as set forth in section 15183.3 could provide limited benefits to a qualified infill project, reaching the conclusion that the infill project actually qualifies under the complicated set of performance standards may result in very few projects actually taking advantage of these streamlining benefits. In addition, unlike the provisions in SB 375 that shift the applicable standard of review to substantial evidence, the proposed Guidelines contain no similar provision, so the decision to proceed under an exemption or negative declaration pursuant to the infill streamlining provisions would still be subject to the less deferential fair argument standard of review. The recent decision in Berkeley Hillside Preservation v. City of Berkeley, emphasizes that no shift in the standard of review leaves any applicant with significant litigation exposure if it proceeds under an exemption and the project is contested. (February, 2012 Cal. App. LEXIS 141 [court sets aside infill exemption for single family home].)

Additional information on the proposed CEQA Guidelines can be found at: http://opr.ca.gov/s_sb226.php. OPR will hold public workshops on the proposed Guidelines in Sacramento, Fresno and Los Angeles during the week of February 20, 2012. Written comments on the proposed Guidelines must be submitted by February 24, 2012.

Written By: Tina Thomas and Amy Higuera

___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Rejects Use of an MND for a Residential Development Relying on Groundwater Holding that Existing Groundwater Overdraft Establishes the Project will Potentially Result in a Cumulatively Considerable Groundwater Impact

Tuesday, February 21st, 2012

In an unpublished decision, the Consolidated Irrigation District filed a petition for writ of mandate challenging the City of Selma’s use of a mitigated negative declaration in approving a 160-unit, 44-acre residential development (Consolidated Irrig. Dist. v. City of Selma, Fifth Appellate District Case No. F061103 (Feb. 8, 2012 – unpublished)).  The trial court granted the writ.  On appeal, the City argued that (1) the irrigation district lacked standing to bring the CEQA challenge, (2) the trial court relied on documents that were not before the City Council when it approved the project to rule against the City, and (3) substantial evidence did not support a fair argument that the proposed development might have a significant effect on the environment.  The Court upheld the trial court on all three accounts.  First, the Court held the irrigation district has standing to sue pursuant to Water Code section 22650 because it has beneficial interests that might be affected by the project.  Second, the Court held substantial evidence supports the trial court’s determination that the documents the trial court ordered to be included in the record were submitted to the City prior to the City Council approving the project.  Third, the irrigation district presented substantial evidence of a fair argument that the project would result in at least two potentially significant impacts.  Specifically, the Court held the project will contribute to this cumulative impact on groundwater due to that fact that the project requires 80.65 acre-feet of groundwater per year in a groundwater basin currently impacted by existing overdraft, and the project may have a cumulative impact on agricultural land because the MND entirely failed to analyze this issue.  The Court declined to address any other impact arguments advanced by the irrigation district because the City was required to produce an EIR.  Therefore, the Court concluded it would serve no purpose for it to address every claimed flaw in the MND.

Written By: Tina Thomas and Chris Butcher

___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Federal District Court Grants Summary Judgment in Agency’s Favor on NEPA Issues and in Plaintiff’s Favor on Wilderness Act Issues

Tuesday, February 7th, 2012

In High Sierra Hikers Association v. United States Department of the Interior (N.D.Cal. 2012) 2012 U.S. Dist. LEXIS 7664, the U.S. District Court for the Northern District of California, San Francisco Division, addressed whether the National Park Service (NPS) adequately assessed the environmental consequences of its General Management Plan for Sequoia and Kings Canyon National Parks (GMP) under the requirements of the Wilderness Act and the National Environmental Policy Act (NEPA). The Court concluded that under the Wilderness Act, an agency must conduct a “necessity” finding regardless of the type of Environmental Impact Statement (EIS) prepared. However, under NEPA, the Court explained that the level of analysis conducted by NPS was adequate for a programmatic EIS.

The Wilderness Act charges agencies, such as NPS, with the task of passing regulations that put the preservation of nature above commercial enterprises. If an agency wants to allow commercial activities, the agency must conduct a specialized “necessity” finding, showing that it considered the impacts of commercial activities and balanced all relevant factors. NPS argued the Act applies only to decisions that expressly permit commercial activities. NPS asserted that because the GMP is only a programmatic plan authorizing use at current levels, NPS was not required to make specialized findings until it implements its Wilderness Stewardship Plan (WSP). The Court disagreed, rejecting any distinction based on whether the agency is permitting new levels or simply authorizing current levels of commercial activity. Rather, the Court stated that since the NPS is charged with the main responsibility of preserving nature from commercial activities, a necessity finding is required under the Act. Therefore, the Court ruled in favor of the Plaintiff, holding that the GMP violated the Wilderness Act.

In addressing the Plaintiff’s NEPA argument, the Court noted that NEPA requirements differ based on the type of EIS required for a project. For a programmatic EIS, like the one approved by NPS, NEPA only requires an agency to include sufficient detail to help make an informed decision, whereas a site-specific EIS requires more specific data-gathering and analysis of impacts. The Court also emphasized that NEPA is a procedural statute, not concerned with outcomes but rather the process agencies must go through to ensure they make informed decisions. NEPA provides that agencies must take a hard look at the environmental impacts of their decisions, and must prepare an EIS that is available to the public and contains an analysis of possible environmental impacts along with reasonable alternatives.

In rejecting Plaintiff’s argument concerning the range of alternatives included in the EIS, the Court explained that NEPA does not require an agency to assess every alternative, but only the ones that are necessary to help make a reasonable decision and to allow for public participation. To determine which alternatives are reasonable, the Court explained that it must defer to the agency’s statement of purpose. In light of the stated purpose of the GMP, and because more detailed project-specific analysis will be considered by NPS when it adopts the WSP, the Court determined that the alternatives included in the EIS were sufficient under NEPA.

Next, the Court rejected Plaintiff’s argument that NPS failed to take a hard look at the impacts of the GMP and Packer Permits. The Court explained that the level of analysis required to constitute a “hard look” depends on the type of EIS at issue. The Court held the analysis NPS conducted was adequate under NEPA requirements for a programmatic EIS. The Court also held that NPS reasonably deferred further, more detailed analysis until the WSP.

Lastly, the Court declined to require NPS conduct additional analysis regarding the impact of renewing the Packer Permits. The Court concluded that the Plaintiff did not demonstrate a substantive basis for the claim that the prior environmental assessments relied upon in approving Packer Permits were outdated. Therefore, NPS did not violate NEPA in deciding to maintain the status quo by issuing Packer Permits at current levels.

Key Points:

NEPA is a procedural act designed to ensure agencies take a hard look at environmental issues before taking actions that may impact the environment. Outside of the NEPA process, federal law includes a number of substantive environmental mandates that must be addressed by agencies. Agencies must be cautious to comply with the requirements of all applicable federal environmental laws not just NEPA.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)

___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

City of Sacramento’s Climate Action Plan Strives to Achieve an 83% Reduction in 2005 GHG Emissions Levels by 2050

Monday, February 6th, 2012

On February 14, 2012, the City of Sacramento will hold a hearing to consider approving the City’s Climate Action Plan (CAP). (http://www.sacgp.org/cap.html.) The CAP is split into two phases. Phase 1, which was adopted in February 2010, addresses GHG emissions from internal municipal operations. Phase 2, which will be considered by the City Council for the first time during the February 14 hearing, focuses on communitywide climate change issues within the city limits of Sacramento.

The CAP sets out a goal to achieve a 15% reduction of its 2005 GHG emission levels by the year 2020. The CAP also sets long-term goals which the City is not obligated to achieve, but which the CAP states are nevertheless important to ensure that GHG emission reduction efforts continue beyond 2020. These goals are a 38% reduction of 2005 levels by the year 2030, and an 83% reduction of 2005 levels by 2050.

To achieve the GHG reduction goal of 15% below 2005 levels by 2020, the CAP contains seven strategies. The first strategy is to promote sustainable land use. The goal of this strategy is to decrease vehicle miles traveled (VMT) per capita in new development by 35%, compared to statewide averages. To help achieve this goal, the strategy involves using more compact development patterns, building closer to transit, and locating jobs near housing. Sacramento hopes to build more complete neighborhoods using “green” practices and “green” infrastructure.

The second strategy focuses on mobility and connectivity. This strategy focuses on increasing the availability, efficiency, and appeal of alternative modes of transportation. It has been found that 48% of Sacramento’s GHG emissions come from diesel and gas use by vehicles; therefore, the CAP concludes that it is imperative to discourage personal car use. To help achieve this goal, Sacramento plans to build higher-density and mixed-use neighborhoods, with safe environments and more infrastructure to promote walking and biking. A decrease in personal car use would also decrease congestion on the highways, allowing for more efficient transportation of cargo.

The third strategy focuses on energy efficiency and renewable energy. Energy used in buildings accounts for 39% of total emissions in Sacramento, with 17% from residential buildings and 22% from commercial and industrial buildings. This strategy has a two-part goal. The first is to achieve zero net energy in all new construction by 2030. The second is to achieve an overall 15% reduction in energy usage in all existing buildings by 2020. This requires a fundamental shift in energy usage. Sacramento plans to work with energy providers (like SMUD and PG&E) and encourage them to provide incentives to use less electricity and to educate about the importance of conservation. The city also wants to promote and use renewable energy sources, such as hydro, wind, geothermal, and solar.

The fourth strategy entails waste reduction and recycling. Solid waste generation and disposal account for 5.3% of Sacramento’s GHG emissions. The process of disposing of waste in the landfill creates GHG emissions; the subsequent decomposing of waste in the landfill emits GHG as well. The goal of this strategy is a 75% waste diversion by 2020 and zero waste to landfill by 2040. To achieve this goal, there needs to be more production of sustainable goods, but also people need to consume less, recycle, and reuse. These types of behavioral changes will lead to less waste thus saving energy required for disposal.
The fifth strategy focuses on water conservation and efficiency. Energy used to pump, transport, and treat water creates GHG emissions. The goal is a 20% reduction in per capita water consumption by 2020 with more efficient ways to store and distribute water. This strategy also includes encouraging water conservation.

The last two strategies specifically deal with the need to prepare for climate change. The sixth strategy focuses on creating a “climate change-resilient community,” one that is aware of impending climate change and prepared to handle it. This involves monitoring weather changes, and creating infrastructure improvements so as to better handle extreme weather. The final strategy addresses community involvement and empowerment. The CAP strives to promote citizen action through outreach programs, City acknowledgment of community accomplishments, and cooperative public/private efforts to achieve the mitigation and preparation goals.

The City determined that the CAP constitutes a project pursuant to CEQA because it includes measures that change the physical environment and influence land use and development patterns. However, the CAP builds on the policies outlined in the General Plan and its preparation was called for in Environmental Resources Implementation Program #12 included in the General Plan. The CAP, therefore, concludes that the Master EIR (MEIR) prepared for the 2030 General Plan adequately considered and described the impacts of the Climate Action Plan for the purposes of CEQA.

The City designed the CAP consistent with the requirements of SB 97 in order to permit qualified projects to take advantage of CEQA streamlining for analysis of GHG emission and related impacts for projects that are consistent with the Plan. (See CEQA Guidelines, § 15183.5 [procedure for tiering and streamlining the analysis of greenhouse gas emissions].) Appendix C of the CAP sets forth the actions that new development projects and/or existing developments must comply with to be consistent with the CAP.

Written By: Tina Thomas, Chris Butcher and Holly McMannes (law clerk)

___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Federal Court Affirms that the 90-day Rule to Request a CEQA Hearing is Mandatory

Friday, February 3rd, 2012

In Friends of Roeding Park v. City of Fresno (E.D. 2012) 2012 U.S. Dist. LEXIS 11691, the District Court granted the city’s motion to dismiss Plaintiffs’ lawsuit challenging the planned expansion of the Fresno Chafee Zoo ruling (1) the Court lacks subject matter jurisdiction over Plaintiffs’ National Environmental Policy Act (NEPA), National Historic Preservation Act (NHPA), and Land and Water Conservation Fund Act (LWCFA); (2) Plaintiffs failed to state any cognizable Equal Protection and Due Process claims under 42 U.S.C. § 1983; (3) Plaintiffs failed to state a California Code of Civil Procedure § 526(a) claim; and (4) Plaintiffs failed to request a hearing within 90 days of the filing of the petition as required by the California Environmental Quality Act (CEQA). The CEQA claim was dismissed without leave to amend.

Written By: Tina Thomas and Chris Butcher

___________
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.