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CEQA Updates

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

Posts from April, 2012


Third Appellate District Grants Partial Publication of CEQA Decision Relating to Agricultural Mitigation, Urban Decay, Res Judicata, and the Deliberative Process Privilege

Wednesday, April 25th, 2012

In Citizens for Open Government v. City of Lodi (2012) ___ Cal.App.4th ___ (Opinion), the Court rejected Citizens for Open Government’s and Lodi First’s (Petitioners) challenges to the reapproval by defendant City of Lodi (City) of a conditional use permit for a proposed shopping center to be anchored by a Wal-Mart Supercenter (Project) after the original EIR for the Project was revised and recertified. The trial court denied Petitioners’ writ and the Third Appellate District affirmed.

The appellate court found the trial court abused its discretion in permitting the City of Lodi to withhold various emails pursuant to the deliberative process privilege because the City did not meet its burden of proof that the doctrine was applicable. However, the Court concluded that Petitioners failed to meet their burden to show that the City’s improper exclusion of the emails from the administrative record constituted prejudicial error. The Court explained that to show prejudice Petitioners should have sought writ review of the trial court’s decision to exclude the emails. Because it failed to do so, Petitioners were not entitled to reversal on appeal for this error.

In an unpublished portion of the decision, Petitioners argued that other documents withheld as attorney-client privilege lost such privileged status after the City shared the documents with the Real Parties. The Court disagreed. The Court explained that it did not matter whether the documents were shared with the Real Parties’ attorneys or the Real Parties directly: “It was still communication between parties on the same side of the litigation aimed at sharing information with one another to produce an EIR that would withstand a legal challenge for noncompliance with CEQA.”

Turning to the substantive adequacy of the revised EIR, Petitioners alleged that the EIR failed to adequately address urban decay, agricultural, climate change, and water supply impacts, and that the EIR failed to include a reasonable range of alternatives. The Court did not publish the portions of its decision addressing the substantive merits of Petitioners climate change and water supply claims. The Court did, however, publish the portion of its decision addressing the relationship of the Doctrine of Res Judicata to Petitioner Lodi First’s challenge to the water supply analysis. Each of the published portions of the decision is addressed below.

The Court held that the record contained sufficient evidence to support the conclusion that the revised EIR included a reasonable range of alternative. Based on the rule of reason and an understanding that CEQA provides no ironclad rule governing the nature or scope of alternatives, the Court concluded the City’s failure to identify a feasible alternative that could achieve most of the project objectives and avoid or significantly reduce the Project’s significant and unavoidable impacts was not error. The EIR considered five alternatives (no project, alternative land use, reduced density, reduced size, and alternative location). Reduced density and alternative land use alternatives were rejected from detailed consideration in the revised EIR. The Court upheld the City’s decision to reject these alternatives from detailed consideration. The Court explained, based on the facts in this case, that the City was not required to analyze an alternative that was inconsistent with the zoning for a project site and that substantial evidence supported the conclusion that the reduced density alternative was not economically feasible. The Court also held that the three alternatives that were analyzed in detail within the EIR (no project, reduced size, and alternative location) constituted a reasonable range of alternatives. Lastly, the court determined that substantial evidence supported the City’s rejection of the environmentally superior alternatives (no project and reduced size) because the record demonstrated that neither alternative would entirely fulfill the applicant’s or City’s objectives.

In the published portion of the opinion addressing urban decay, the Court held that the revised EIR did not need to address urban “blight” conditions. The Court concluded that the record demonstrated that urban decay and urban blight are two separate phenomena. The record demonstrated that deteriorated homes and other existing blighted properties in the Project area have no relationship to the condition of the retail environment, which needed to be evaluated to consider the Project’s potential urban decay impact. Therefore, the Court concluded that the baseline used to analyze potential urban decay impacts of the Project was not required to disclose urban blight within the Project vicinity.

The Court also affirmed the trial court’s ruling that it was proper for the City to rely on the economic baseline from 2006 and 2007 (the baseline at the time the NOP was published) in evaluating urban decay impacts in the revised EIR. The court reviewed the City’s determination not to update the baseline for an abuse of discretion. Based on this standard, the Court concluded the City was not required to update the baseline because evidence in the record demonstrated that updating the baseline was problematic as economic conditions are rapidly changing and these rapidly changing conditions did not affect the urban decay findings. Therefore, the Court held the City did not abuse its discretion in declining to update the economic baseline.

With respect to Petitioners’ challenge to the adequacy of the agricultural mitigation ratio adopted by the City, the Court concluded Petitioners’ argument demonstrated a misunderstanding of CEQA. The City concluded that no feasible mitigation could reduce impacts to agriculture to a less than significant level. Specifically, the EIR explained that because agricultural conservation is not true mitigation no level of conservation can be scientifically justified as correct and the level of mitigation is a matter of local concern. For this reason, the Court explained that the question is not whether substantial evidence supported the determination that a greater mitigation ratio was infeasible. The question is whether substantial evidence supported the conclusion that no feasible mitigation was available. The Court found the record included such evidence.

In rejecting the water supply arguments advanced by one of the Petitioners, the Court held that the claim was barred by the doctrine of res judicata. As explained by the Court, res judicata applies and bars a petitioner from re-litigating issues that were or could have been previously litigated where the prior proceeding is final on the merits and the present proceeding is on the same cause of action as the prior proceeding. Here, there was no dispute that the prior proceeding was final on the merits and the conditions and facts upon which the new proceeding was based were not materially different from the original proceeding. Therefore, because Petitioner could have raised its water supply claims in the prior proceeding, res judicata barred the claim in this proceeding.

Lastly, in the unpublished portion of the opinion addressing climate change, the Court found that the revised EIR failed to properly analyze potential climate change impacts. The Court stated that an EIR cannot refuse to analyze an impact based on the conclusion that it would be speculative. Rather, an EIR must disclose after thorough analysis of an issue the reasons further analysis is considered too speculative for evaluation. However, the Court found that the City prepared the required climate change analysis after the FEIR was released to the public. While this approach violated CEQA, a CEQA violation only invalidates an EIR if it is prejudicial. The Court concluded that CEQA Guidelines section 15088.5, subdivision (a)(4), only requires recirculation when an EIR is fundamentally and basically inadequate and conclusory. Here, only a portion of the EIR was fundamentally and basically inadequate. The Court concluded this flawed portion was not significant because the climate change analysis prepared after the FEIR was released demonstrated that the Project would not have a significant impact on climate change. The record included no evidence submitted before or after the study was produced to support the conclusion that climate change impacts were significant. Therefore, the City’s failure to analyze climate change impacts in the EIR was not prejudicial.

Key Points:

Where no level of mitigation will reduce an impact to less than significant, the mitigation measure(s) adopted by the lead agency to reduce the impact to the extent possible constitutes a policy determination that will be upheld if supported by substantial evidence.

To utilize the deliberative process doctrine to withhold documents from inclusion in the administrative record, the lead agency must ensure that the record supports the conclusion that the public interest in nondisclosure clearly outweighs the public interest in disclosure.

Lastly, in CEQA litigation in which a petitioner challenges both an original EIR and revised EIR, res judicata bars the litigation not only of issues that were actually litigated in the original lawsuit but also issues that could have been litigated.

Written By: Tina Thomas and Chris Butcher
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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.

9th Circuit Court of Appeals Lifts Stay to allow CARB to Continue Implementing LCFS

Wednesday, April 25th, 2012

In Rocky Mountain Farmers Union v. Goldstene (Case no. CV-F-09-2234), the U.S. District Court for the Eastern District granted summary judgment in favor of a group of farming and oil-industry plaintiffs, finding that the Low Carbon Fuel Standard (“LCFS”) regulations promulgated by the California Air Resources Board (“CARB”) to implement provisions of California Assembly Bill 32 (“AB 32”) violate the Commerce Clause of the U.S. Constitution.  One of the district court’s rulings preliminarily enjoined the CARB from enforcing the regulation. CARB appealed the district court’s ruling to the 9th Circuit Court of Appeal (case no. 12-15131).

On April 23, 2012, the Ninth Circuit granted CARB’s motion for a stay of the injunction while the 9th Circuit continues to consider CARB’s appeal of the lower court’s decision. CARB’s press release regarding the 9th Circuit’s preliminary holding is available at: http://www.arb.ca.gov/fuels/lcfs/LCFS_Stay_Granted.pdf.  (A copy of the  Order is attached here.)

Written By: Tina Thomas and Chris Butcher
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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.

SACOG Adopts Joint Metropolitan Transportation Plan/Sustainable Communites Strategy

Friday, April 20th, 2012

On April 19, 2012, the Sacramento Area Council of Governments (SACOG), the Metropolitan Planning Organization responsible for developing the state and federally required Metropolitan Transportation Plan (MTP) for the 22 cities and six counties in the greater Sacramento region, adopted its first joint MTP / Sustainable Communities Strategy (SCS) as required by Senate Bill 375.  Thomas Law Group assisted SACOG during the administrative process leading to the approval of its MTP/SCS and certification of the associated Program Environmental Impact Report for the plan.  For more information on the MTP/SCS, visit:  http://www.sacbee.com/2012/04/20/4428212/sacog- and http://www.sacog.org/2035/

Written By: Tina Thomas and Chris Butcher
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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 Disagrees with Sunnyvale and Madera Decisions and Holds that use of Projected Future Conditions as a Baseline for Analyzing Environmental Impacts is Proper where Supported by Substantial Evidence

Wednesday, April 18th, 2012

In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012 Cal.App. LEXIS 434), the Second Appellate District upheld the lead agency’s determination that a future 2030 baseline was proper for determining the significance of traffic and air quality impacts caused by a proposed light rail project in Los Angeles. The EIR at issue used the existing physical environmental conditions as the baseline conditions for most environmental topics; but for traffic and air quality impacts, the agency elected to utilize the future baseline conditions that consisted of existing transit services and improvements that the Regional Transportation Plan explicitly identified as projects to be constructed by the year 2030.

Petitioners objected to the agency’s approach, stating that the 2030 conditions represented a “hypothetical scenario” not unlike the scenario struck down by the Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310 (CBE). Petitioners also relied on Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (Sunnyvale) and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 (Madera), both of which held that projected future conditions provided an improper baseline for determining traffic impacts.

In CBE, the Supreme Court rejected the use of “hypothetical allowable conditions” when those conditions did not provide a “realistic description of the existing conditions” without the project. There, the agency’s baseline assumed maximum operation of an oil refinery. Because the refinery did not operate at maximum capacity under normal circumstances, the Court determined that the EIR’s baseline was not a realistic description of the existing conditions without the project and concluded that using such a baseline provided an illusory basis for analyzing the significance of environmental impacts.  In Neighbors for Smart Rail, the court distinguished CBE and found that “there is nothing ‘illusory’ about population growth and its inevitable impacts on traffic and air quality: population is growing, and population increases do affect traffic and air quality, with or without the project.” Thus, using a 20-year planning horizon to measure traffic and air quality impacts of a long-term rail infrastructure project is “eminently realistic.” The court found nothing to the contrary in CBE.

The court also stated that “to the extent Sunnyvale and Madera purport to eliminate a lead agency’s discretion to adopt a baseline that uses projected future conditions under any circumstances, we disagree with those cases.” According to the court, “[a]n analysis of the project’s impacts on anachronistic 2009 traffic and air quality conditions would rest on the false hypothesis that everything will be the same 20 years later.” The court explained that the proposed light rail project would not commence operation until 2015 at the earliest, therefore its “impact on presently existing traffic and air quality conditions will yield no practical information to decision makers or the public” and “does nothing to promote CEQA’s purpose of informed decisionmaking on a project designed to serve a future population.” The court therefore rejected the notion that CEQA forbids use of projected conditions as a baseline, and held that “an agency’s use of a projected future baseline, when supported by substantial evidence, is an appropriate means to analyze the traffic and air quality effects of a long-term infrastructure project.”

Key Point:

Depending on the type of project at issue, use of projected conditions may be an appropriate way to measure the environmental impacts that a project will have on traffic, air quality and greenhouse gas emissions.  If a future baseline is selected, lead agencies are advised to carefully document the reliability of the projected future conditions as well as the inevitability of the changes on which those conditions are based.  As is true in CEQA cases generally, substantial evidence in the record must support the agency’s selected baseline.

Until the Supreme Court addresses this issue, Madera and Sunnyvale remain good law. Thus, courts faced with this issue – especially in the Fifth District – may elect to follow Madera and Sunnyvale rather than Neighbors for Smart Rail. Until this issue is settled, agencies may wish to consider using multiple baselines, each supported by substantial evidence, for a “belt and suspenders” approach to their analyses.

Written By: Tina Thomas and Ashle Crocker
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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.

New Supreme Court Decision on Exhaustion of Administrative Remedies under CEQA will be issued this Spring or Summer

Thursday, April 5th, 2012

In Tomlinson v. County of Alameda (2010) 188 Cal.App.4th 1406, the petitioners challenged the County’s determination that the infill exemption set forth in the CEQA Guidelines (Section 15332) applied to a development project located within the County and not within a city. The County argued the petitioners failed to exhaust their administrative remedies on this issue. On appeal, the First Appellate District declined to determine whether the petitioners’ participation in the administrative process was adequate to exhaust administrative remedies because, relying on Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, the court held that Public Resources Code section 21177 does not apply to categorical exemption determinations.

The California Supreme Court granted review of Tomlinson to address whether Public Resources Code section 21177 requires a petitioner to exhaust administrative remedies before filing an action challenging a public agency’s determination that a project is categorically exempt from CEQA. The hearing was held on April 4, 2012, at approximately 10:30 A.M. At the hearing, Remy Moose Manley, LLP represented the petitioners. Real Parties in Interest shared their allotted time for oral argument with amicus curiae League of California Cities. Real Parties in Interest were represented by Abdalah Law Offices and amicus curiae League of California Cities was represented by Cox Castle & Nicholson LLP.

During oral argument, Real Parties in Interest and the League of California Cities took the position that a party has no duty to exhaust administrative remedies on a categorical exemption if the lead agency does not hold a publicly noticed hearing. But, Real Parties in Interest and the League of California Cities, explained that if an agency has a hearing on a categorical exemption and the notice issued for the hearing identifies the applicable exemption, then a petitioner has the burden to raise specific issues challenging the use of the exemption during the administrative process. Petitioners did not disagree with these conclusions. Petitioners, however, argued that the notice issued by the County did not adequately describe the infill exemption and that, even if it had, Petitioners adequately exhausted on the issue.

Petitioners’ stance appeared to surprise the Court. Justice Marvin Baxter asked Petitioners if an exhaustion requirement can apply to categorical exemptions. Petitioners responded in the affirmative. Justices Goodwin Liu, Joyce L. Kennard, and Carol Corrigan peppered Petitioners with a series of additional questions in an effort to understand whether Petitioners believed the appellate court’s holding was rightly or wrongly decided. Petitioners did not take a firm position on the merits of the Court of Appeals’ holding. Petitioners stated that the Court of Appeals reached its decision based on a strict reading of Public Resources Code section 21177.

Turning to the facts in the case, Justice Liu was particularly critical of the adequacy of the notice issued by the County because the notice failed to disclose that the infill exemption only applied to cities. Justice Liu asked both the Real Parties in Interest and the League of California Cities why a petitioner, unrepresented by counsel during the administrative process, should be required to expressly cite the “within city limits” language when the County failed itself to reference it in the public notices or during the project hearings. Justice Kennard, however, pointed out that during the administrative process petitioners cited to other portions of the regulatory language set forth in CEQA Guidelines section 15332. Therefore, Justice Kennard questioned whether this was evidence that petitioners had received sufficient notice to be able to review the exemption and to raise a clearly articulated challenge based on the “within city limits” requirement.

Several of the Justices appeared to be sympathetic to the argument that petitioners either satisfied the exhaustion requirement or were not required to do so under the circumstances in this case. Justices Tani Gorre Cantil-Sakauye, Carol Corrigan, and Liu returned frequently to the issue of fairness. Justice Marvin Baxter rhetorically asked why no one was discussing fairness to the project applicant. Justice Baxter also stated his opinion that the discussion of fairness exceeded the scope of the question before the Court. The question he explained was whether, as a matter of law, the exhaustion doctrine applies to categorical exemption decisions under CEQA.

As to the question of law before the Court, Justice Kennard asked whether the Court would need to overturn the Azusa decision to reverse the Court of Appeals’ decision in this case. Justice Kennard stated that it could be argued that Azusa is distinguishable because the facts in that case suggest that no hearings were held. Here, all parties admit the County held at least three hearings on the project.

The Court will issue a written opinion within 90 days of the April 4, 2012, oral argument.

Written By: Tina Thomas and Chris Butcher
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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.