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CEQA Updates

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

Posts from July, 2012


CEC Roundtable Brings Together Utilities, Developers, and Governmental and Environmental Agencies to Discuss the Desert Renewable Energy Conservation Plan

Thursday, July 19th, 2012

On Friday, July 13, 2012, the California Energy Commission (CEC) conducted a workshop to gather information, perspectives, and high-level principles on how the Desert Renewable Energy Conservation Plan (DRECP) can be most effective as a long-term energy infrastructure plan. The DRECP is an effort by the Renewable Energy Action Team to provide protection and conservation of the desert region, while enabling and promoting renewable energy project development in an effort to meet California’s Renewable Portfolio Standard goals. The desert region is comprised of 22.5 million acres of federal and nonfederal land covering Imperial, Inyo, Kern, Los Angeles, Riverside, San Bernardino, and San Diego counties. Participants in the roundtable discussion represented members of state and federal government, utilities, researchers, developers, and the environmental community. The issues that need to be resolved include: creating a streamlined permitting and citing process, increasing certainty to help long term procurement planning and integration, and decreasing risks around projects, all while trying to preserve the desert region’s ecosystem.

Court Awards Attorneys’ Fees to Co-Counsel Who was Also a Named Party in CEQA Litigation

Thursday, July 19th, 2012

In Healdsburg Citizens for Sustainable Solutions v. City of Healdsburg (2012) 206 Cal.App.4th 988, certified for partial publication, the First District Court of Appeal affirmed an award of attorneys’ fees resulting from a successful CEQA challenge to a co-counsel attorney who was also a named party in the case.

Petitioners, Healdsburg Citizens for Sustainable Solutions (HCSS), an organization of more than 100 members, challenged the adequacy of an EIR for a resort development. Grattan, a party to the suit and member of HCSS, participated as co-counsel to lead counsel Mansfield-Hewlett who represented petitioners. Petitioners successfully challenged the adequacy of an EIR and the court awarded them attorneys’ fees in the amount of $382,189.73.

Defendants appealed the award of attorneys’ fees on the ground that fees should not have been awarded to Grattan because she was a party to the suit. While the court acknowledged that attorneys who litigate in pro per are not entitled to attorneys’ fees, it reasoned Grattan acted more as a private attorney general and was therefore entitled to recover fees. In explaining its position, the court reasoned that Grattan formed a genuine attorney-client relationship with HCSS wherein her work independently benefitted the organization’s numerous members, not strictly her own interests. That being the case, Grattan qualified for attorneys’ fees under CEQA because she “was seeking to vindicate an important public interest in ensuring compliance with CEQA”.

Key Point:

An attorney who represents herself as well as an organization in a CEQA lawsuit is entitled to attorneys’ fees where she seeks to enforce CEQA compliance.

Written By: Tina Thomas, Chris Butcher and Grant Taylor (law clerk)
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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 of Appeal Views Appellants’ Failure to Present and Discredit Evidence favorable to the Agency as a Concession that Substantial Evidence Does In Fact Support Agency

Tuesday, July 17th, 2012

In an unpublished decision, El Pueblo Para El Aire Y Agua Limpio v. Kings County Board of Supervisors, 2012 Cal. App. Unpub. LEXIS 4984, Greenaction for Health and Environmental Justice and El Pueblo Para El Aire y Agua Limpio (collectively appellants) sued the Kings County Board of Supervisors (County) alleging that the County’s approval of a project to expand an existing hazardous waste disposal facility violated the California Environmental Quality Act (CEQA). Appellants also presented civil rights causes of action under Government Code sections 11135, 12955, and 65008. The Fifth Appellate District Court of Appeal agreed with the trial court, finding that the CEQA claim was properly rejected and upholding demurrers to the civil rights causes of action.

The court first concluded that appellants’ claims of CEQA noncompliance were not persuasive. Appellants attacked the County’s final subsequent environmental impact report (FSEIR) in three respects: (1) the health-related impacts were not sufficiently analyzed; (2) the daily truck traffic baseline used was inflated; and (3) the cumulative impacts analysis did not include all the relevant information and was thus underestimated. Pertaining to the first claim, appellants alleged that the County did not have sufficient information to judge the project’s true impacts on public health, the County should have conducted an additional health survey, and the County had an obligation to reexamine the project’s impacts due to new information brought to light by the Greenaction health study.

The court first explained that appellants had waived their claims by failing to adhere to the well-established principle that when an appellant is challenging an EIR for insufficient evidence, the appellant must lay out the evidence favorable to the other side and then show why it is lacking. Appellants’ failure to present all the evidence was viewed by the court as a “concession” that there was, in fact, substantial evidence to support the County’s findings.

The court next held that the County properly refused to conduct an additional health test as requested by appellants. “CEQA does not require a lead agency to conduct every test … recommended or demanded by commentors” (El Pueblo Para El Aire Y Agua Limpio v. Kings County Board of Supervisors, 2012 Cal. App. Unpub. LEXIS 4984 at 47). Since the court found that the FSEIR reflected an adequate, good faith effort to ascertain the project’s potential impacts on public health, the court concluded that the County did not need to conduct an additional test. The court further explained that the county’s response to the requests for an additional test adequately explained why the County had refused to conduct another test, supporting the County’s decision with substantial evidence.

Lastly, the court explained that the County did not need to recirculate its EIR. Appellants’ argument rested on their belief that the Greenaction health survey presented new information, thus changing the environmental setting of the project from the one analyzed in the FSEIR. However, using the CEQA definition of “environmental setting,” which is “the surrounding physical conditions such as topography, air quality, plant life and water resources,” the court concluded that since the information from the survey was about birth defects, there was no change in the project’s environmental setting. (Id. at 61-62). There was no new information presented, therefore the County’s decision not to recirculate the DSEIR was supported by substantial evidence as well.

Appellants’ second and third claims that the truck traffic baseline and the cumulative impacts analyses were inadequate under CEQA were both rejected by the court under the exhaustion doctrine. By failing to raise the two claims either during the administrative proceedings or in the appeal letter, the court explained that these claims were forfeited due to appellants’ failure to exhaust all the available administrative remedies before bringing the suit to court.

The court also addressed non-CEQA, civil rights causes of action under Government Code sections 11135, 12955, and 65008. All three of these causes of action were rejected. The court explained that the appellants were trying to use the statutes in situations that were beyond their scope as defined by each statute itself along with interpretations used by other courts in previous cases. Therefore, the trial court’s holding and the County’s approval of the expansion of the hazardous waste site were reaffirmed.

Written By: Tina Thomas, Ashle Crocker and Grant Taylor (law clerk)
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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.

Tina Thomas Named a Super Lawyer for 2012

Tuesday, July 17th, 2012

For the 8th consecutive year, Tina Thomas has been named a Super Lawyer by Northern California Super Lawyers Magazine. Super Lawyers are those who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.

Victory for Neighborhood Association in South Sacramento as the CPUC Votes 3-2 Against a Proposed Natural Gas Storage Project

Friday, July 13th, 2012

On Thursday, July 12, 2012, the Avondale-Glen Elder Neighborhood Association (AGENA) prevailed against Sacramento Natural Gas Storage, LLP (SNGS), which proposed to store 8 billion cubic feet of natural gas underneath 700 homes in the Avondale Glen Elder neighborhood. AGENA was represented by attorneys from Legal Services of Northern California and Thomas Law Group on a pro bono basis throughout the five-year administrative process. During Thursday’s hearing on the SNGS Project, Commissioner Florio, author of the Alternative Proposed Decision to deny the SNGS Project, reiterated that the project was not necessary, therefore the Certificate of Public Convenience and Necessity required for the project should not be issued. Commissioner Sandoval agreed with Commissioner Florio, emphasizing that the CPUC had never previously approved a gas storage project in such a densely populated area, and stating that she saw no justification for its construction in light of the risks identified in the Environmental Impact Report. Commissioner Ferron joined Commissioners Florio and Sandoval. He also did not believe the project was necessary and explained that developing a gas storage project below a densely populated urban neighborhood would be inconsistent with the best management practices for the natural gas storage industry. The grassroots effort to oppose a gas storage project underneath homes and schools came to a victorious end when the CPUC voted 3-2 against the project. Commissioners Peevey and Simon stated that they would draft dissenting opinions. Pursuant to the CPUC’s rules, SNGS may file a request for reconsideration within 30 days of the final decision.

Newly Published Appellate Decision Holds Analysis of Parkland Impacts for Campus Master Plan Fails to Comply with CEQA

Thursday, July 5th, 2012

The City of Hayward v. Board of Trustees of the California State University, 2012 Cal. App. LEXIS 761, publication status was recently changed from unpublished to published on June 28, 2012. The Board of Trustees of the California State University (Trustees) approved a master plan to guide the expansion of the Hayward campus. The City of Hayward (City) sued claiming the Trustees’ environmental impact report (EIR) violated the California Environmental Quality Act (CEQA) by failing to analyze the impacts of the master plan on fire protection and public safety, traffic and parking, air quality, and parklands. The California First Appellate District Court found that Trustees’ EIR was adequate under CEQA in all respects except with regard to the analysis of impacts on surrounding parklands.

Trustees’ master plan requires an increase of fire services, either with the expansion or construction of a firehouse. The court held that the EIR adequately analyzed the impacts of the construction. Due to the small area required for a new firehouse along with its urban location, the court also held that the EIR appropriately concluded that the environmental impacts of expanded fire services would be less than significant. Therefore, the court explained, no mitigation measures were required. The court further concluded that it found no deficiency in the EIR’s analysis of cumulative impacts on public services.

The court next addressed the issues of traffic and parking. With the expansion of the college campus comes the need for more faculty. The Trustees’ master plan acknowledged the high cost of housing in California, and therefore explored potential locations to build affordable faculty housing. The EIR conducted an analysis and concluded that construction of faculty housing will not have a significant environmental impact as a result of increased traffic or parking. The court held this conclusion and analysis as sufficient under CEQA, explaining that since the Trustees prepared a program EIR as opposed to a project EIR, they properly evaluated cumulative impacts but deferred site-specific analysis of possible impacts on traffic until a later time. The court next examined the Trustees’ mitigation measures. With the main goal of shifting commuters out of single-occupant cars and into cleaner modes of transportation, the court found “no deficiency” in the way the EIR considered impacts of the master plan on parking and traffic, incorporated mitigation measures, and reached the conclusion that some environmental impacts are unavoidable. Lastly, the City claimed that the Trustees’ EIR failed to include a “mitigation measure … providing for the University to pay its fair share of traffic improvements.” City of Hayward, 2012 Cal. App. LEXIS 761 at 61. Since the City did not raise this issue in its opening brief, the court declined to address it because the argument had been waived.

Pertaining to impacts on air quality, the court supported the Trustees’ EIR. While the EIR concluded that the master plan would produce long-term emissions of pollutants, it presented transportation mitigation measures that would reduce some, though not all, emissions to a less than significant level. Since neither the trial court nor the City suggested other mitigation measures, the court held this portion of the Trustees’ EIR to be sufficient.

Analysis of the impacts on parklands was the one area the court found the EIR to be inadequate. Due to the proximity of two parks to the campus, the court explained that the EIR must do more than simply reference insignificant impacts on the East Bay Regional Park System. The Trustees’ EIR should rather analyze impacts on the two parks specifically. The court also held that the Trustees’ reliance on “long-standing use patterns” was done in error. Since the EIR made no attempt to determine the extent to which the current student body uses the parks or to extrapolate from that data as to what park usage might be in the future, there was no evidence to support Trustees’ assumption that the student use of the parks would remain nominal even after campus expansion.

Key Point:

The court found that the Trustees’ EIR inadequately analyzed the master plan’s impacts on parklands because, due to the proximity of the two parks, an analysis of impacts on the regional park system in general was too broad. The court also made clear that to support findings and analyses in an EIR, there needs to be concrete evidence; the Trustees should have attempted to ascertain the overall usage and capacity of the two nearby parks.

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

Alexander Crossings Project Approved in Napa

Tuesday, July 3rd, 2012

On June 26, 2012, the Napa City Council unanimously approved the Alexander Crossings Apartment project (Project), consisting of 134 residential units with an average density of 20.9 units per acre. A total of 27 residential units or 20% of the Project is designated as affordable housing consistent with the City’s Housing Element and Municipal Code. The Project is planned on a 6.39-acre site located in the southeast area of the City of Napa, approximately a mile and a half from the downtown district along Silverado Trail. Vice-Mayor Mark Van Gorder stated during the City Council meeting that in his opinion “this is a fantastic project and I’m thankful we have it.” Thomas Law Group founding Partner Tina Thomas and Senior Counsel Ashle Crocker assisted developer, St. Anton Partners, through the approval process.

Written By: Tina Thomas and Michele Tong
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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.

Petitioners’ Challenge to Air District’s Rules Regarding New Flammable Paints goes up in Flames

Tuesday, July 3rd, 2012

Court holds that where an environmental assessment determines there are no significant impacts, the EA functions as a mitigated negative declaration and thus no mitigation or alternatives analysis is required. In W.M. Barr & Company, INC. v. South Coast Air Quality Management District, (2012) 2012 Cal.App.Lexis 759, the California Court of Appeal, Second District, addressed the South Coast Air Quality Management District’s (SCAQMD) Rule 1143 (Rule), which requires manufactures of consumer paint thinner and solvent products to limit volatile organic compounds (VOCs) in their products, consequentially resulting in more flammable products. The Rule also requires manufacturers to include product hangtags to alert consumers of the increased flammability. The court held the Rule was neither preempted by the Federal Hazardous Substances Act (FHSA) nor California State Air Resources Board (CARB) regulations. Additionally, the court held the district’s environmental assessment prepared for the Rule did not have to consider alternatives or mitigation measures under CEQA.

The lawsuit arose when petitioner, a Tennessee retail supplier of solvents, challenged SCAQMD’s Rule designed to reduce VOCs in consumer solvents and paint thinners. An environmental assessment revealed that the Rule would result in more flammable products to which consumers, familiar with the old, less flammable products, would not be accustomed, thereby increasing fire hazards. The Rule was therefore amended to require the products include hangtags to alert consumers of the changes. A supplemental environmental assessment concluded the amended Rule adequately addressed the fire hazards, reducing the Rule’s impacts to less than significant. Petitioner claimed the Rule was preempted by federal and state labeling laws and that SCAQMD did not comply with CEQA because its environmental assessment failed to consider alternatives or mitigation measures. The court reviewed those arguments on appeal.

Petitioner first claimed that the FHSA expressly preempted the Rule because it precludes states from establishing labeling requirements for hazardous substances that are designed to protect against the same risk that a federal requirement seeks to protect, unless the labeling requirement is identical to the federal requirement. In rejecting this claim, the court reasoned the hangtags required by the Rule did not interfere with the federally required labels and would even draw attention to them. Moreover, the hangtags were designed to address the risk that consumers may not be familiar with based on the reformulated product, and not the risk of fire hazards the federal label sought to address. Therefore, the FHSA did not expressly preempt the Rule because the Rule addressed a different risk than the FHSA requirements.

Petitioner next claimed that CARB’s subsequently enacted regulation pertaining to general purpose cleaners preempted SCAQMD’s Rule. Prior to SCAQMD’s adoption of the Rule, CARB advised SCAQMD that its governing preemption laws would not restrict SCAQMD’s authority to regulate a particular consumer product category, unless it had already been regulated by CARB. CARB specifically explained it had not yet adopted regulatory requirements for paint thinners and multipurpose solvents, so SCAQMD could adopt its own requirements. Pursuant to principles of statutory construction, the court gave great weight to CARB’s interpretation of its governing statute and agreed with its interpretation. SCAQMD’s Rule, therefore, was not preempted by state law.

Finally, the court concluded CEQA did not require SCAQMD to analyze alternatives or mitigation measures for the Rule. The Secretary for Resources has determined that the portion of SCAQMD’s regulatory program involving the adoption, amendment, and repeal of regulations pursuant to the provisions of the Health and Safety Code is a certified regulatory program under CEQA. (CEQA Guidelines, § 15251, subd. (l).) SCAQMD, therefore, analyzed the potential environmental impacts of the Rule pursuant to its certified regulatory program. SCAQMD produced a supplemental environmental assessment for the Rule, which concluded all potential environmental impacts of the Rule would be less than significant with hangtags on the affected products. The court found that substantial evidence supported this conclusion. Because the Rule as proposed did not have the potential to result in any significant environmental impacts, the court determined that the supplemental environmental assessment functioned as a mitigated negative declaration rather than an EIR. As such, the document was not required to include feasible alternatives and mitigation measures under CEQA.

Key Point:

Where an environmental analysis prepared under a certified regulatory program properly serves as the functional equivalent of a mitigated negative declaration, as opposed to an EIR, the analysis is not required to include a discussion of feasible alternatives or further mitigation measures.

Written By: Tina Thomas, Amy Higuera and Grant Taylor (law clerk)
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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.

Federal Court Upholds Application of Nationwide Permits for Hydropower Dam in Washington

Tuesday, July 3rd, 2012

In Snoqualmie Valley Preservation Alliance v. U.S. Army Corps of Engineers, (2012) ___ F.3d ___, the Ninth Circuit affirmed the Army Corps of Engineers’ (Corps) verification that certain nationwide permits (NWPs), which authorize activities predetermined to have minimal adverse environmental impacts, applied to the reconstruction of a dam used to generate hydroelectric power in Washington.

Puget Sound Energy, Inc. (PSE), intervener-defendant in the case, planned to rebuild a hydroelectric dam, which was first constructed in 1898, to mitigate upstream flooding problems. After obtaining the requisite Federal Energy Regulatory Commission (FERC) approvals for the project, PSE applied for a Clean Water Act (CWA) Section 404 dredge and fill permit from the Corps. Specifically, PSE sought verification from the Corps that its proposed dam could obtain a 404 permit under NWPs 3, 33, and 39. NWP 3 authorizes discharge for the replacement of a current structure with minor deviations; NWP 33 authorizes temporary discharges for necessary construction activities; and NWP 39 authorizes discharges for the expansion of attendant features necessary for the use of “commercial” and “institutional” buildings. The Corps verified the proposed dam complied with the terms and conditions of NWPs and concluded it would have minimal environmental impacts. Snoqualmie Valley Preservation Alliance (Alliance) filed suit challenging the Corps verification when the district court granted summary judgment in favor of the Corps. The Alliance appealed.

On appeal, the Court first addressed the Alliance’s argument that the proposed dam must undergo individual review instead of being authorized by a NWP. Central to this argument was the contention that the only NWP that may authorize a hydropower project is NWP 17, which pertains to hydropower projects less than 5000 kW at existing reservoirs, for which the instant project did not qualify because it would generate more than 5000 kW. The Court, however, explained NWP 17 is silent concerning projects that will generate more than 5000 kW and accordingly does not preclude the application of other permits to hydropower projects. Thus, contrary to the Alliance’s argument, other NWPs may permit dredge and fill activities associated with PSE’s proposed dam.

Next, the Court rejected the claim that the Corps improperly verified NWPs 3 and 39, summarized above, authorize the project. For this issue, the Court considered and gave deference to the Corps interpretation and application of NWPs 3 and 39. In applying NWP 3, the Corps sought to replace the dam for public safety purposes, specifically to prevent flooding, a rationale which the Court found consistent with language in the NWP 3’s regulatory history. The court similarly concluded NWP 39 properly applied because the proposed dam involved the construction of “attendant features that are necessary for the [its] use and maintenance” and qualifies as a commercial development under NWP 39 which specifically includes industrial facilities in that category. Simply, the plain language in the NWPs was consistent with the Corps verification, so the proposed dam was properly authorized under the NWPs.

Last, the Alliance contended the Corps failed to state a sufficient basis for its verification that the NWPs apply. The court disagreed, citing the Corps’ reason that “PSE could proceed under section 404 of the CWA because the project had minimal individual and cumulative impacts and it complied with all terms and conditions of NWPs 3, 33, and 39[,]” further indicating the conclusions were amply supported by facts in the record. Moreover, the Court went on to explain requiring more from the Corps would be contrary to the NWP scheme, which seeks to streamline the permitting process for qualifying projects, as requiring more would be tantamount to the type of individualized review required for projects that do not qualify for NWPs.

Key Point:

NWPs are mechanisms that streamline section 404 permitting. When analyzing NWPs, courts will consider their plain language and not require extensive analysis pertaining to their application or environmental effects.

Written By: Tina Thomas, Chris Butcher and Grant Taylor (law clerk)
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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.