Thomas Law Blog

CEQA Updates

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

Posts from April, 2014


Federal District Court Dismisses Environmental Challenges to Tahoe Regional Plan

Monday, April 21st, 2014

In Sierra Club v. Tahoe Regional Planning Agency, 2014 U.S. Dist. LEXIS 47871, the United States District Court for the Eastern District of California granted the Tahoe Regional Planning Agency’s (TRPA) motion for summary judgment and upheld TRPA’s 2012 Regional Plan Update (RPU).

The Regional Plan, which was adopted in 1987, governs land-use planning and development in the Lake Tahoe basin area. TRPA may not update the plan unless TRPA finds that the amended plan maintains the same environmental standards to protect the lake’s beauty and environment.  Sierra Club and Friends of the West Shore challenged the RPU arguing that the RPU did not maintain the environmental protections in the original Regional Plan for four reasons.

First, Sierra Club contended that the RPU’s switch from a Bailey model to a Total Maximum Daily Load (TMDL) model was arbitrary and capricious. The Bailey model contains strict limits on the impervious surface coverage (such as concrete, asphalt, etc.) on certain soil types. In contrast, the TMDL model takes a broader approach aiming to reduce the total flow of pollutants into the lake. The court emphasized that it should be at its most deferential when considering the scientific judgments of TRPA. The court noted that TRPA had included further analysis of designated areas in response to public comments in the Environmental Impact Statement (EIS) required to be prepared by the TRPA Compact and that the region-wide scale of the TMDL model was consistent with the regional scale of the RPU. As a result, the court deferred to the scientific judgment of TRPA and held that TRPA’s decision to switch to the TMDL model was not arbitrary and capricious.

Second, Sierra Club claimed that the EIS failed to address the cumulative impacts from increased development on soil conservation in certain areas of the lake. However, the court pointed out that while the analysis of soil conservation was minimal compared to the analysis of water-quality impacts, the disparity reflected the significant difference in commentary that TRPA received on the draft EIS. Therefore, the court concluded that the RPU’s findings on soil conservation were sufficiently supported in the record.

Third, Sierra Club contended that the RPU’s reliance on the adoption of new best management practices was arbitrary and capricious. Although best management practices were historically not successful in the region, the RPU included best management practices that would require minimal maintenance such as retaining walls and terracing. Additionally, the RPU incentivized compliance with the best management practices. Thus, the court held it was not arbitrary and capricious for TRPA to conclude that its best management practices would be followed.

Finally, Sierra Club contended that the RPU did not contain substantial evidence that the RPU would maintain the ozone threshold from the original Regional Plan. Sierra Club took issue with TRPA’s reliance on data from a monitoring station in Nevada rather than California. The court again deferred to the judgment of TRPA to determine if the variance in the monitoring stations was permissible or not. As a result, it was not arbitrary and capricious for TRPA to conclude that the RPU sufficiently maintained ozone levels in the Lake Tahoe basin area.

KEY POINT

The court was highly deferential to the judgment of TRPA. Although the analysis of some matters in the EIS could have been more robust, TRPA was not required to address “every scientific uncertainty” and its findings were not arbitrary and capricious.

COURT FINDS PROGRAMMATIC EIR FOR RETAIL DEVELOPMENT INCLUDED INADQUATE ANALYSIS OF URBAN DECAY AND ENERGY IMPACTS

Monday, April 7th, 2014

In California Clean Energy Committee v. City of Woodland, 2014 Cal. App. LEXIS 300, certified for partial publication on April 1, 2014, the Third District Court of Appeal reversed the trial court’s denial of a petition for writ of mandate to vacate the City of Woodland’s certification of an EIR for a regional shopping center.

In 2007, a developer applied to annex 154 acres of agricultural land to the City and rezone it to general commercial use in order to build a regional commercial center known as “Gateway II.” After preparing an EIR, the city council approved the project, but reduced its size to 61.3 acres. The California Clean Energy Committee, a nonprofit organization, filed a petition for writ of mandate challenging project approval and certification of the EIR.

The court considered the sufficiency of the City’s mitigation measures for urban decay under CEQA. The court upheld a measure requiring primarily “regional retail” uses at Gateway II, upholding the City’s conclusion that the measures would help lessen, although not avoid completely, the potential urban decay impacts. The court, however, agreed with the Committee that a measure requiring the developer to submit a market study and urban decay analysis for future specific projects within Gateway II improperly delegated to the applicant responsibility for studying impacts in violation of CEQA. Further, the court agreed with the Committee’s contention that the market study measure provided no performance standards for evaluating whether additional mitigation should be required, in violation of CEQA.

Additional measures the court deemed inadequate required the developer to contribute fifty percent toward the cost of a retail strategic plan and an implementation strategy for the City’s Downtown Specific Plan. The court noted that these measures committed the developer to pay fees, but the fees were not tied to any planned action that would obligate the City to undertake actual mitigation of urban decay.

The court then addressed whether the City had given sufficient consideration to a mixed use alternative to the project.  The draft EIR concluded that the alternative was infeasible due to economic considerations; however, the city council findings rejected the alternative as environmentally inferior to the project.  The court explained that there was no support for the council’s determination, since the EIR concluded that environmental impacts of the alternative would be similar to the project impacts.

Finally, the court considered the City’s treatment of energy impacts. The court noted that the EIR discussion of energy comprised less than one page; included no assessment of or mitigation for transportation energy impacts; concluded that compliance with the Building Code and CALGreen alone would adequately mitigate construction and operational energy impacts; failed to address the energy impacts of the non-retail uses proposed for the site (including office and hotel); and gave no consideration to renewable energy options. Based on these facts, the court concluded that the analysis was deficient.

In an unpublished portion of the opinion, the court considered whether the City’s actions in approving Gateway II violated the State Planning and Zoning Law because the project was inconsistent with the City’s General Plan policy of revitalizing its downtown.  According to the Committee, Gateway II had the potential to cause urban decay by attracting retail development to the City’s periphery. The court held the Committee had failed to preserve this argument because its complaint had focused on the CEQA implications of urban decay, and had not apprised the City of an alleged violation of the Planning and Zoning Law.

KEY POINTS:

Under the court’s ruling, mitigation requiring a developer to undertake future studies of urban decay is inadequate mitigation. Instead, the agency itself must undertake the study, and some performance standard must be included to assess whether additional mitigation is needed at the time site-specific projects are considered.

In addition, an agency should not adopt a rationale different from that included in the EIR for rejecting project alternatives unless the agency’s finding is supported by substantial evidence elsewhere in the record.

Lastly, even in a programmatic EIR, this court found that CEQA’s requirement for consideration of energy impacts requires a comprehensive analysis that addresses all aspects of a project’s potential energy usage and whether renewable energy technologies can play a role in mitigating impacts.

NINTH CIRCUIT REVERSES DISTRICT COURT AND UPHOLDS BIOLOGICAL OPINION PROTECTING ENDANGERED DELTA SMELT

Wednesday, April 2nd, 2014

In a decision that included three opinions from the three-judge panel, the Ninth Circuit in San Luis & Delta-Mendota Water Authority v. Jewell, 2014 U.S. App. LEXIS 4781, reversed the district court’s decision and upheld a 2008 biological opinion prepared by the U.S. Fish & Wildlife Service (FWS) regarding the effect of the Central Valley Project (CVP) and State Water Project (SWP) on the endangered delta smelt.

The U.S. Bureau of Reclamation (Reclamation), which operates the CVP, requested the opinion in accordance with the Endangered Species Act (the ESA). The CVP and SWP supply water to more than 20 million people in southern California from the Sacramento-San Joaquin Delta (the Delta). The estuary at the confluence of the Delta and the San Francisco Bay forms the spawning habitat for the endangered, two-to-three inch delta smelt.

The 400-page biological opinion found that the continued operations of the CVP and SWP threatened the delta smelt and proposed several alternatives for Reclamation to follow to protect the smelt. The district court held that the biological opinion was arbitrary and capricious and remanded it back to FWS for another draft.

The court acknowledged the major implications of reversing the district court, but noted that it was not reviewing the case to balance the interests of the smelt against water users. The court’s review was limited to whether the biological opinion was arbitrary and capricious. While the ESA requires FWS to base the biological opinion on the best scientific evidence available, the court should defer to FWS to determine what evidence is the best and only find the biological opinion flawed if it completely disregards other available evidence.

The court considered each of the flaws the district court identified in the biological opinion and reversed the district on each one. First, the biological opinion did not err in relying on raw salvage numbers of smelt from the pumping stations’ screen traps to set the flow limits at pumping stations in the Delta. The court acknowledged that raw salvage figures were not the most precise figures to use. However, it was not arbitrary and capricious to do so because the raw figures resulted in more conservative flow limits and greater safeguards for the smelt. As the court would do throughout its decision, it emphasized that this was exactly the type of scientific determination that courts should defer to experts to make.

Second, the court held that FWS’s methodology for establishing the geographic range in the estuary with the suitable salinity for the smelt’s spawning habitat was not arbitrary and capricious. While the model FWS used had flaws, the biological opinion identified the flaws in the alternative models. As a result, it was improper for the district court to substitute its judgment for FWS’s judgment and select one flawed model over another.

Third, the court held that the biological opinion’s Incidental Take Statement was not flawed. The court found that it was reasonable for the biological opinion to use different data sets to estimate the incidental take of adult and juvenile smelt. Additionally, it was reasonable for the biological opinion to use an average cumulative salvage index to set the incidental take limits.

Fourth, the court upheld the biological opinion’s conclusions regarding the indirect effects of the CVP and SWP on the smelt’s food supply, pollution, predation, aquatic vegetation, and toxic bacteria. The biological opinion recognized that many factors impact the dynamic smelt population, but each of these factors is affected by the flow from CVP and SWP operations. The court considered each factor and while deferring to the scientific expertise of FWS, determined that the biological opinion’s conclusions were not arbitrary and capricious.

Fifth, the court held that FWS was not required to support the “nonjeopardy elements” of the “reasonably prudent alternatives” described in the biological opinion. FWS’s regulations define a “reasonably prudent alternative” as an action that 1) can be implemented in a manner consistent with the intended purpose; 2) can be implemented within the scope of the agency’s authority; 3) is economically and technologically feasible; and 4) would avoid jeopardizing the existence of the endangered species or its habitat. The first three elements are known as the “nonjeopardy elements,” and because FWS has a duty to protect the smelt “whatever the cost,” FWS was not required to consider these “nonjeopardy elements” in the biological opinion. The court noted that even if FWS was required to support the “nonjeopardy elements,” sufficient support existed in the record.

After reversing all of the bases on which the district court remanded the biological opinion, the court affirmed the district court’s holdings on a couple points.  First, the court held the agency was not required to separate discretionary from non-discretionary actions for purposes of establishing the environmental baseline. Second, the court held the National Environmental Policy Act (NEPA) does not require FWS to prepare an Environmental Impact Statement (EIS) in conjunction with the issuance of the biological opinion. Despite the “powerful coercive effect” that the biological opinion would have on Reclamation to follow the recommendations, merely issuing the opinion was not a “major federal action significantly affecting the quality of the human environment.” Reclamation’s adoption and implementation of the biological opinion however, did trigger an obligation to comply with NEPA.

KEY POINT

Courts should be highly deferential to the scientific expertise of FWS when reviewing biological opinions prepared by FWS pursuant to the ESA. Although agencies must base their findings on the best scientific evidence available, agencies are not required to use the best evidence possible. As a result, courts should only find a biological opinion to be arbitrary and capricious if the agency ignores available scientific data that is superior to the evidence that the agency relies on.

Appellate Court Upholds CEQA Exemption for Rodeo at Santa Cruz County Fairground

Wednesday, April 2nd, 2014

In Citizens for Environmental Responsibility v. State ex rel. 14th District Agricultural Association, 2014 Cal. App. LEXIS 283, the Court of Appeal, Third District, affirmed the trial court’s determination that a rodeo at the Santa Cruz County Fairground (the Fairground) meets CEQA’s Class 23 categorical exemption for “normal operations of existing facilities for public gatherings.”

In 2011, the Santa Cruz County Deputy Sheriff’s Association, through its nonprofit corporation Stars of Justice, proposed a rodeo at the Fairground. The Fairground hosts several livestock shows and public events annually and even held rodeos in the past. After comparing the impact of normal events at the Fairground with the proposed rodeo, the 14th District Agricultural Association (the District), which administers the Fairground, issued a Notice of Exemption under CEQA Guidelines section 15323 for a Class 23 categorical exemption for the rodeo, finding that the rodeo was consistent with normal operations of the Fairground.

The appellants contended that the District improperly exempted the rodeo from CEQA review for two reasons. First, the appellants argued that the Fairground’s new Manure Management Plan or MMP constituted a mitigation measure, which implicitly acknowledged the environmental effects of the rodeo. However, the Fairground adopted the MMP in 2010 after the Regional Water Board found impaired water quality in Salsipuedes Creek, which runs through a portion of the Fairground near the horse barns and arena. The contaminated water and MMP existed before the rodeo and as a result, the MMP was part of the “normal operations” and not a mitigation measure that would preclude the Class 23 categorical exemption.

Second, the appellants argued that the Class 23 categorical exemption for normal operations of public gathering facilities did not apply because of the unusual circumstances exception in CEQA Guidelines section 15300.2, subdivision (c). CEQA Guidelines do not define the term unusual circumstances, but the court rejected the appellant’s argument that unusual circumstances should be determined by comparing the project to all public gathering facilities in general such as racetracks, stadiums, and convention centers, or in the alternative, comparing the project to “normal” fairground facilities. Instead, the court held that unusual circumstances for normal operations of a public gathering facility should be determined by comparing the normal events or operations of the facility with the circumstances presented by the proposed project.

In comparing the normal operations of the Fairground to the rodeo, the court found that the rodeo did not represent a significant change in the operations of the facility, did not cause additional environmental risks, was consistent with the surrounding zoning and land uses, and had a size and scope appropriate for the Fairground. The rodeo would attract around 1,500 spectators and include a maximum of 500 horses with only 100 on the grounds at one time and 250 cattle with 50 on the grounds at one time. This was consistent with the 1,500 to 3,500 spectators that came to horse shows during the county fair and the 500 horses and 800 cattle at the Fairground during the annual horse cutting show. As a result, there were no unusual circumstances that took the rodeo out of the categorical exemption for normal operations of the Fairground.

KEY POINT

The unusual circumstances exception for the Class 23 categorical exemption for normal operations of a public gathering facility is determined by comparing the normal operations and events at the facility with the operations of the proposed project at the facility. Unusual circumstances are not determined by more broadly considering how the proposed project compares with operations at other public gathering facilities in general or other public gathering facilities of the same type.