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CEQA Updates

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

Posts from October, 2012


Placing a Measure on the Ballot to Establish Competitive Bidding for Trash Service Contracts is not a Project under CEQA

Thursday, October 25th, 2012

In Chung v. City of Monterey Park, (2012) Cal.App. LEXIS 1097, the Second District Court of Appeal upheld a trial court’s ruling that Measure BB, a City of Monterey Park municipal ballot measure, was not a project subject to CEQA and therefore the measure did not require environmental review before being placed on the ballot. Measure BB established a competitive bidding process for future trash service contracts to be used once an existing trash service contract had expired.

As established by Public Resources Code section 21065, a “project” under CEQA is “an activity which may cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment.” CEQA Guidelines section 15378, subdivision (b)(4) further provides that a “project” does not include the “creation of government funding mechanisms or other government fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment.” The court noted at the outset that determining whether the city council’s decision to place Measure BB on the ballot constitutes a “project” under CEQA is an issue of law to be decided on the facts in the record and does not present a question of deference to agency discretion or review of substantiality of evidence.

Petitioners argued that, among other things, Measure BB could require the city council to award the residential solid waste franchise to up to three franchisees, which could add additional trucks to the road and therefore cause impacts to air quality, noise pollution and road damage. The court concluded, however, that Measure BB simply established competitive bidding for further waste services contracts in the city in order to protect the public fisc. The court found petitioner’s argument that Measure BB will result in environmental impacts because of the possibility for more trucks on the road unavailing, holding that, at this juncture, environmental review of the ballot measure would be meaningless because the city had not committed itself to a particular course of action. The ballot measure did not commit the city to place more trucks on the streets. In fact, at this point in the process, the court found that who will compete for the contracts and what additional trucks, if any, would be required was speculative. Instead, the measure simply set forth a different mechanism for selecting future trash service providers; competitive bidding.

Key Point:

Fiscal activity which does not commit a governmental entity to any particular course of action is not a project under CEQA. According to the court, adoption of competitive bidding for municipal contracts is a fiscal activity, which is categorically excluded from the definition of “project.”

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.

EIR Found Deficient With Regard to Water Supply Impacts and Deferred Butterfly Mitigation

Wednesday, October 24th, 2012

In Preserve Wild Santee v. City of Santee (2012) 2012 Cal. App. LEXIS 1091, petitioners challenged the City of Santee’s (City) certification of a final environmental impact report (EIR) for a development project in the City, claiming the project violated the California Environmental Quality Act (CEQA) in several ways.  The trial court found merit in one of petitioners’ claims – the EIR contained insufficient evidence to support its conclusion the project’s fire safety impacts were less than significant.  Petitioners nevertheless appealed, arguing that the EIR was deficient in several other respects.  The Fourth Appellate District agreed with Petitioners in two respects.  First, the court agreed that the EIR improperly deferred mitigation of impacts to the Quino checkerspot butterfly.  Second, the court held the EIR inadequately analyzed the project’s water supply impacts.  The court also affirmed the lower court’s award of attorneys’ fees and costs.

Petitioners raised three claims related to the project’s biological resources impacts.  First, they alleged the EIR’s cumulative biological resources impacts analysis improperly relied on the draft subarea plan.  CEQA requires an EIR to discuss a project’s cumulative impacts when the project, combined with the effects of other development, would cause a significant environmental impact.  In this case, the court upheld the EIR’s conclusion that the project’s cumulative impacts on biological resources were not cumulatively considerable because “potential development surrounding the project was in the early planning stages” and “the project will not interfere with the potential development’s attainment of its share of the goals [of the existing Multiple Species Conservation Program].”  Second, petitioners argued the EIR violated CEQA because a mitigation measure requiring the developer to obtain an offsite mitigation property was infeasible.  The court disagreed.  The court explained that an agency does not generally need to identify the exact location of offsite mitigation for such a measure to be adequate.  The court also found substantial evidence in the record showing the mitigation measure was in fact feasible.  Third, petitioners contended the EIR improperly deferred mitigation measures regarding the active management of the Quino chekerspot butterfly within the preserve.  The court concluded that while the EIR contained measures to mitigate the loss of Quino butterfly habitat, it did not contain performance standards or guidelines for active management of the Quino butterfly within the preserve, which constituted an improper deferral of mitigation under CEQA.

With regard to the project’s water supply impacts, the court determined the ultimate question was whether the EIR adequately addressed the reasonably foreseeable impacts of water supply to the project, not whether it established a likely source of water.  The court explained long-term water supply inherently contains uncertainties however, to satisfy CEQA, an EIR must identify those uncertainties and discuss reasonably foreseeable alternatives.  More specifically, the EIR should have addressed the impacts of likely future water supplies and included circumstances affecting the likelihood of the water’s availability, to provide decision makers with facts to evaluate the project’s water needs.  Since the EIR did not include such a discussion in its water supply analysis, it did not meet CEQA requirements.

Petitioners also argued the trial court should have ordered a complete decertification of the EIR as opposed to a limited writ.  The court first held the trial court had correctly determined it had the authority under CEQA guidelines to issue a limited writ.  Although the court suggests a limited writ may not have been proper in this case, the court did not decide the issue since the trial court had recently ordered the City to decertify the EIR.

The last issue concerned whether petitioners were the prevailing parties and if the award of attorneys’ fees and costs was proper.  City argued the costs and attorney fees should be reversed since petitioners were erroneously determined to be the prevailing parties and the trial court did not explain the basis for the fee award amount.  The court explained the trial court was not required to provide a detailed explanation of how it arrived at the fee award since the City did not file a request for a statement of decision.  The court also concluded the prevailing party in an action is generally entitled to recover its costs as a matter of right.  The court therefore upheld the trial court’s determination and remanded the case to the trial court to determine the award amount for petitioners’ costs and attorneys’ fees on appeal.

Key Point:

The decision reiterates case law addressing three key issues: (1) Mitigation measures requiring development of future mitigation plans must set forth performance standards or guidelines to comply with CEQA.  (2) Where it is impossible to confidently determine the availability of anticipated future water sources an EIR must acknowledge water supply uncertainties and discuss possible alternative water sources. (3) Where a trial court awards attorneys’ fees without setting forth a detailed explanation, the opposing party must request a statement of decision before challenging the merits of the award on appeal.

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.

Third District Court of Appeal Holds “Fair Argument” Standard of Review Applies to Determine Whether there is a Reasonable Possibility of Significant Effect to Trigger the Unusual Circumstances Exception to a CEQA Categorical Exemption

Friday, October 19th, 2012

In a showing of solidarity with the First District Court of Appeal in its recent ruling in the Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal.App.4th 656 case (currently pending review by the Supreme Court), the Third District Court of Appeal slapped the hand of the El Dorado Irrigation District (EID) for increasing water supplies to the Shingle Springs Rancheria (Rancheria) area for development of the Red Hawk Casino without first conducting CEQA review.  On October 4, 2012, the court in Voices for Rural Living v. El Dorado Irrigation District (2012) Cal.App. LEXIS 1046, upheld the trial court’s decision to void EID’s approval of an agreement to provide the Shingle Springs Band of Miwok Indians (Tribe) significantly more water than it had previously provided under the terms of an annexation agreement because EID erred in concluding the agreement was exempt from CEQA.  The appellate court upheld the trial court’s finding that unusual circumstances triggered an exception to the small projects categorical exemption under CEQA, which EID had relied upon.

In the early 1980’s, EID provided water to the Tribe for residents living on the Rancheria property at out-of-district rates.  In 1987, EID and the Tribe entered into an annexation agreement which brought the Tribe’s property into EID’s service area.  The agreement was subject to approval by the El Dorado County Local Agency Formation Commission (LAFCO), which approved the agreement with some conditions.  Specifically, LAFCO authorized EID to supply water to the Tribe’s property for residential uses to serve no more than a community of 40 residential lots.  Many years later, following the Tribe’s decision to build Red Hawk Casino, EID entered into an agreement with the Tribe to provide more water than authorized under the annexation agreement.

EID determined that the water agreement was exempt from CEQA under the categorical exemption for small construction projects because the only necessary physical project improvements would be relocating an existing three-inch water meter and installing a short section of pipeline linking the meter to an existing water main.  EID made this determination even though it would be providing significantly more water to the Tribe than it previously had.  EID also determined that the agreement was not subject to the LAFCO conditions of approval limiting the amount of water it could provide to the Tribe because those annexation conditions were unconstitutional, and on that basis, approved the agreement. Petitioner, Voices for Rural Living, filed a petition for writ of mandate to vacate EID’s approval of the agreement, arguing the project was not exempt under CEQA’s small projects categorical exemption and that EID failed to comply with the LAFCO conditions of approval.

The appellate court used a two prong test to determine if the project triggered the unusual circumstances exception to the categorical exemptions. First, the court asked whether the project “presents unusual circumstances” and second “whether there is a reasonable possibility of a significant effect on the environment due to the unusual circumstances.”  The court acknowledged a split of authority regarding the correct standard of review to apply to the second question of the test.  In Banker’s Hill, et al. v. City of San Diego (1996) 139 Cal.App.4th 249, the court applied the fair argument standard.  However, in Association for Protection etc. Values v. City of Ukiah (1991) 2Cal.App.4th 720, the court used the substantial evidence standard. After weighing the evidence, the court was persuaded that a fair argument standard applies.  Applying that standard, the court determined that the unusual circumstance of a substantial change in demand for municipal services was evidence on which a fair argument could be made that the project may have a significant effect on the environment.  The project’s scope – providing an amount equal to 216 additional residences – “obviously is a fact that distinguishes [it] from the type of projects contemplated by the exemption.”

The appellate court, however, overturned the trial court’s ruling that directed EID to prepare an environmental impact report (EIR), finding that this ruling was in excess of the trial court’s authority. The appellate court held that the trial court, having found that the project was not exempt from CEQA, should have instead simply ordered EID to comply with CEQA; “[h]ow an agency complies with CEQA is a matter first left to the agency’s discretion.”  This holding is in contrast to the Berkeley Hillside decision, which ordered the property owner to prepare an EIR.

As to Petitioner’s argument regarding violation of the LAFCO conditions to the annexation agreement, the court held that “EID had no authority to adjudicate the conditions’ constitutionality or disregard their application to the proposed agreement.”  The court noted that the Legislature has vested LAFCOs “with the sole and exclusive authority to approve annexations of territory into special districts. This authority includes the power to impose conditions of approval on an annexation.”  California law makes these conditions enforceable and a public agency “has no discretion to disregard them.”

Key Point:

Until the Supreme Court issues its ruling in the Berkeley Hillside case, applicants and lead agencies should proceed with caution when relying on a categorical exemption.  Under Berkeley Hillside and this most recent ruling from the Third District, proceeding under a categorical exemption would be subject to the less deferential “fair argument” standard of review.  Under that standard, if a project challenger can present evidence to support a “fair argument” that the project may result in significant environmental impacts, then the “unusual circumstances” exception applies and use of a CEQA exemption is improper.

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.

Ninth Circuit Finds EPA’s Final Determinations Regarding California’s Revised SIP Arbitrary and Capricious

Friday, October 5th, 2012

In Association of Irritated Residents v. United States Environmental Protection Agency (2012) 686 F.3d 668, the Ninth Circuit Court of Appeals found the Environmental Protection Agency’s (EPA) final decision with regard to California’s Revised State Implementation Plan (SIP) under the Clean Air Act (Act) arbitrary and capricious. The court therefore granted the petition and remanded the case to the EPA for further consideration.

Pursuant to the Act, EPA designated the Los Angeles-South Coast Air Basin as an “extreme” nonattainment area. Under the Act, California has primary responsibility for ensuring that the State’s air quality satisfies National Ambient Air Quality Standards (NAAQS), and must detail its efforts related thereto in a SIP for each region within the state. In 2003, California submitted a 2003 SIP Revision to EPA, which included the 2003 Attainment Plan, PEST-1, and a demonstration that no transportation control measures were required. In 2008, prior to EPA making a final decision on the 2003 Attainment Plan, California withdrew some of the 2003 Attainment Plan’s key elements, including many of the control measures.

In 2008, EPA proposed to approve the control measures that were not withdrawn from the 2003 Attainment Plan (including PEST-1), and to disapprove the attainment demonstration in the 2003 Attainment Plan because the demonstration was largely based on the withdrawn commitments. In disapproving the attainment demonstration, EPA concluded California could continue to rely on the attainment demonstration from the 1997/1999 SIP. EPA also proposed to approve California’s assertion that no transportation control measures were required based on California’s demonstration that there would be no growth in aggregate vehicle emissions.

Petitioners raise three issues in their petition for review. First, they contend EPA’s failure to order California to submit a revised attainment plan for the South Coast after it disapproved the 2003 Attainment Plan was arbitrary and capricious. Second, petitioners contend EPA’s approval of PEST-1 violates the Clean Air Act because PEST-1 lacks enforceable commitments. Third, petitioners contend EPA violated the Act by failing to require transportation control measures to combat the increase in vehicle miles traveled. The court granted the petition as to all three claims.

First, the court explained that based on California’s determination that an updated plan was necessary, the EPA knew or should have known that reliance on the 1997/1999 SIP attainment demonstration was no longer adequate. Therefore, EPA’s decision to rely on the prior SIP was arbitrary and capricious.

The court also found EPA’s approval of PEST-1 arbitrary and capricious. The court rejected EPA’s argument that the Petitioners lacked standing and held that the record demonstrated EPA failed to determine whether the existing Pesticide Element SIP had sufficient enforcement mechanisms to satisfy the Act’s requirements. The court stated that when EPA approves a plan revision, it must ensure the whole plan, as revised, satisfies the Act’s requirements, especially when a revision simply reiterates the prior plan. Given that rule, the court remanded the issue back to EPA to make the requisite determination.

Lastly, the court explained that whether California was required to include transportation control measures in its 2003 Revised SIP depended on the interpretation of the Act’s requirement for transportation control measures “to offset any growth in emissions from growth in vehicle miles traveled.” EPA focused only on aggregate motor vehicle emissions; since California’s vehicle miles traveled will increase by 30%, but the aggregate motor vehicle emissions will decrease, EPA concluded that no transportation control measures were required. The court held that based on the plain text of the Act, “any growth in emissions” refers to any increase in the level of emissions emanating solely from VMT in a prior year. Therefore, the method used by EPA to determine no transportation control measures were required was inconsistent with the Act. The court stated that if EPA acted consistent with the Act, it would have required transportation control measures.

Key Point:

When reviewing SIP revisions, EPA must examine the SIP as a whole to ensure that the SIP, as revised, appropriately meets Clean Air Act requirements. Additionally, in evaluating the need for transportation control measures, EPA must consider increases in emissions caused by VMTs and cannot rely solely on consideration of total aggregate motor vehicle emissions.

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.

Ninth Circuit Upholds NMFS’s Review and Approval of the Pacific Council’s Program for the Better Management of the Pacific Coast Groundfish Fishery

Friday, October 5th, 2012

In Pacific Coast Federation of Fishermen’s Association v. Rebecca M. Blank (2012) 2012 U.S. App. LEXIS 18974, the Ninth Circuit Court of Appeals concluded that the National Marine Fisheries Service (Service) complied with the Magnuson-Stevens Fishery Conservation and Management Act (MSA) and the National Environmental Policy Act (NEPA) when it adopted changes to the Pacific Coast Groundfish Fishery Management Plan.

Under the MSA, Fishery Management Councils (Councils)  must prepare management plans for fisheries requiring conservation and management to prevent overfishing and to rebuild overfished stock.  The Councils must submit these plans for review and approval by the Service.  In 2007, Congress added a section to the MSA allowing Councils to develop “limited access privilege programs” as long as they take into account fishing communities when structuring the programs.  These programs limit who can enter and participate in the fisheries, as a further attempt to prevent overfishing, as well as economic inefficiency.

This case involves the Pacific Fishery Management Council’s (Council) development of a program to better manage the Pacific Coast groundfish fishery.  The Council’s program had several goals, all of which were divided into two proposals:  one for rationalization of the trawl sector and one for allocations and Pacific halibut bycatch.  After preparing two separate environmental impact statements (EIS), evaluating several alternatives, and examining potential environmental and economic effects, the Service approved the two proposals and codified them into Amendments 20 and 21.

Plaintiffs raised four issues in their complaint.  First, they argued Amendment 20’s limited access program violated MSA by failing to protect and promote fishing communities.  Second, plaintiffs contended the program further violated MSA by failing to restrict privileges to only those who “substantially participate” in the fisheries.  Third, plaintiffs claimed the Service violated various MSA national standards in approving Amendments 20 and 21.  Fourth, plaintiffs argued the Service violated NEPA in its review of the amendments.

The court first explained that the Service met its MSA statutory obligations to the fishing communities.  The MSA only requires the Service to consider fishing communities when establishing a limited access program, not to “guarantee communities any particular role in that program.”  The court found that the Service recognized the need to consider the fishing communities, surveyed the current status of the communities, described the effects of the program on the communities, explained how communities participated in the Council’s decisions, and adopted various measures to mitigate trawl rationalization impacts on fishing communities.

The court next held that the Service was not required to restrict quota shares to those who “substantially participate” in the fishery.  The court explained plaintiffs were “inserting the word ‘only’ and ‘solely’” into the statute and “graft[ing] a requirement for agency action onto” what is rather “an authorization for agency action.”  The MSA requires the Service to make fishing privileges available to those who “substantially participate,” but it does not have to restrict privileges to that group alone.

The court also found that the Service had not violated various MSA national standards.  Contrary to plaintiffs’ contention that the Service failed to promote conservation and use the best scientific information available, the court upheld Service’s actions finding that it explained why the amendments complied with each standard, disclosed the potential impacts of trawling on habitat along with uncertainties, and settled on the amendments that promoted the most conservation.

Lastly, the court concluded that the Service complied with NEPA.  First, the Service was not required to evaluate Amendments 20 and 21 in a single EIS since the two amendments were not connected but rather had independent utility and goals.  Second, the Service studied enough alternatives “to permit a reasoned choice.”  Third, the Service adequately evaluated impacts on fish habitat and non-trawl fishing communities as demonstrated by the EIS’s modeling, references, and comparative analyses of the effects of different types of gear on fish habitat.  Fourth, the court stated that under NEPA “a mitigation plan need not be legally enforceable, funded or even in final form” and determined the Service adequately considered a “reasonably detailed” mitigation.

Key Point:

When two actions are connected, “a single course of action shall be evaluated in a single impact statement.”  However, where two actions, while similar, are independent with regard to utility and goals, two separate EISs are permissible.  Additionally, the Ninth Circuit reiterated that pursuant to NEPA an agency is required to develop proposed mitigation measures to a reasonable degree, but is not required to develop a complete mitigation plan detailing the precise nature of the mitigation measures.

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.