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CEQA Updates

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

Posts from May, 2014


Superior Court Grants Attorney General Leave to Appear as Amicus Curiae in Support of Greenhouse Gas Analysis Prepared for Plan Bay Area

Wednesday, May 21st, 2014

On May 16, 2014, in Bay Area Citizens v. Assn. of Bay Area Governments, et al (Case No. RG13690631), the Alameda County Superior Court granted an Ex Parte Application filed by the Attorney General on behalf of the People of the State of California to file an amicus curiae brief.   In its amicus curiae brief, the Attorney General argues that the analysis of greenhouse gas impacts in the Plan Bay Area Environmental Impact Report (EIR) prepared by the Association of Bay Area Governments and Metropolitan Transportation Commission (the Agencies) complied with the requirements of the California Environmental Quality Act (CEQA).

Plan Bay Area is the regional transportation plan and sustainable communities strategy for the Bay Area prepared by the Agencies pursuant to SB 375. Bay Area Citizens, represented by Pacific Legal Foundation, filed a petition in August, 2013 challenging the Agencies’ certification of the Plan EIR.  According to Bay Area Citizens, the EIR violates CEQA’s information disclosure requirements because its analysis of greenhouse gas impacts failed to take into consideration emissions reductions expected to occur in the future due to implementation of laws and regulations limiting vehicle emissions.

In its amicus curiae brief, the Attorney General contends that the analysis of greenhouse gas emissions complies with CEQA because the methodologies employed were thorough and the assumptions relied on were made explicit, such that the public would not be misled as to the EIR’s conclusions. Because the Agencies’ provide a clear and thorough analytical route, the Attorney General argues that the EIR fulfills CEQA’s information disclosure goals with respect to greenhouse gas emissions.

In seeking to participate as amicus curiae, the Attorney General’s actions are consistent with the office’s long-standing interest in actively participating in raising the issues of greenhouse gas emissions and climate change in the CEQA context.

Appellate Court Upholds CEQA Exemption for New Fiber-Optic Cable Utility Boxes in San Francisco

Tuesday, May 13th, 2014

In an unpublished decision in San Francisco Beautiful v. City and County of San Francisco, 2014 Cal. App. Unpub. LEXIS 3108, the First District Court of Appeal affirmed the denial of a writ of mandate challenging the City and County of San Francisco’s decision to approve AT&T’s installation of 726 metal utility boxes without requiring an Environmental Impact Report (EIR).

The utility boxes would be used to expand AT&T’s fiber-optic cable network in the city.  The utility boxes would be approximately two feet tall and two feet wide and one foot deep, and be placed on public sidewalks throughout the city. The San Francisco Planning Commission found that the project could rely on CEQA’s Class 3 categorical exemption for “construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures . . . .”  Neighborhood groups San Francisco Beautiful and the Planning Association for the Richmond challenged the Planning Commission determination, arguing that the utility boxes presented “unusual circumstances” and would have cumulative significant effects on the environment that required preparation of an EIR.

San Francisco Beautiful first argued that the Class 3 exemption only applied to “previously existing” small structures.  The court rejected this argument, stating that it did not matter whether the structures were previously built and that if the Legislature had intended that, it would have said so.

San Francisco Beautiful further argued that, even if the Class 3 exemption applied, the project fell within an exception. First, San Francisco Beautiful argued that the “unusual circumstances” exception in CEQA Guidelines section 15300.2, subdivision (c) applied, which states that no CEQA exemption applies where there is a reasonable possibility the activity will have a significant environmental effect due to unusual circumstances. The court disagreed, holding that the utility boxes: 1) did not present unusual circumstances because they did not differ from the general circumstances of other sidewalk structures, and 2) the circumstances did not create an environmental risk that did not exist for all other sidewalk structures.

San Francisco Beautiful also argued that the cumulative impacts of the project took it out of the Class 3 exemption. CEQA Guidelines section 15300.2, subdivision (b) provides that an exemption does not apply “when the cumulative impact of successive projects for the same type in the same place, over time is significant.”  The court found this exception inapplicable because the utility boxes were not in the “same place” as required by the express language of the exception. Cumulative effects are limited to the effects of each utility box, not the net effect of all boxes throughout the city. The court stated that the exception would swallow the rule if the court found otherwise as agencies would always be required to consider the impacts of successive similar projects, which would almost always result in significant impacts over time.

San Francisco Beautiful finally argued that the city imposed mitigation measures and, as a result, the project could not qualify for an exemption. San Francisco Beautiful pointed to a memorandum of understanding between the city and AT&T in which AT&T agreed to, among other things, pay the cost of graffiti removal, provide for additional notice for each cabinet site, and consider non-sidewalk locations for the cabinets. The court found that this agreement was not the basis of the city’s approval of the project. As a result, the memorandum of understanding did not constitute a mitigation measure and the plaintiffs’ writ of mandate was denied.

Key Point:  The court acknowledges a continuing split in authority regarding the proper standard of review for determining whether the “unusual circumstances” exception applies to use of a categorical exception.  The court dodges the issue, however, finding that it would reach the same result whether it reviewed the record for substantial evidence to support the city’s determination or for evidence to support a fair argument of a significant impact.

Ninth Circuit Requires Bureau of Reclamation to Consult with USFWS to Protect Delta Smelt

Wednesday, May 7th, 2014

In another decision related to California’s delta smelt, the Ninth Circuit Court of Appeals in a unanimous en banc decision in NRDC v. Jewell, 2014 U.S. App. LEXIS 7063, reversed the district court’s summary judgment in favor of the defendants and held that Environmental Species Act (ESA) Section 7(a)(2) applies to the Bureau of Reclamation’s (Bureau) renewal of certain water allocation contracts for the Central Valley Project.

The Bureau is responsible for managing the Central Valley Project, which conveys water through the endangered delta smelt’s habitat in the California River Delta to millions of water users around the state. The Bureau entered into several contracts with water users related to the Central Valley Project and prepared an Operations Criteria and Plan (Plan) for renewal of those contracts in the early 2000s.

ESA Section 7(a)(2) requires federal agencies to consult with the United States Fish and Wildlife Service (FWS) or the National Marine Fisheries Service prior to undertaking any action that could affect an endangered or threatened species. Pursuant to this requirement, the Bureau consulted FWS regarding the Plan. FWS issued a Biological Opinion in 2004 and a second opinion in 2005 concluding that the Plan would not jeopardize the delta smelt. However, courts invalidated those two Biological Opinions. Relying on concurrence letters from FWS that were limited to the reasoning in these invalidated opinions, the Bureau renewed 159 contracts pursuant to the Plan in 2004 and 2005.

Plaintiff-Appellants, the Natural Resources Defense Council (NRDC) and other environmental groups, sued to compel the Bureau to consult with FWS under Section 7 of the Endangered Species Act regarding 41 of the renewed contracts.

Defendants first argued that NRDC’s case was moot because the Bureau subsequently consulted with FWS, which issued a 2008 Biological Opinion concerning the impacts of the Plan.  However, the 2008 Biological Opinion only concerned the general impacts of the Plan and did not address the impacts of the renewal of the 41 contracts challenged by the NRDC, which were renewed in 2004 and 2005. Therefore, the remedy NRDC sought in requiring consultation on the impacts of the specific contracts was still available and the case was not moot.

Defendants also contended that NRDC lacked standing because the injury was not fairly traceable to the Bureau’s procedural violation. The district court had reasoned that because some of the contracts absolved the Bureau of liability for failure to meet certain legal obligations such as ESA Section 7(a)(2) due to a water shortage, there was nothing more the Bureau could have done to protect the delta smelt and therefore, the procedural violation was not the cause of NRDC’s alleged injury. Citing Defenders of Wildlife v. United States EPA, the court held that for a procedural violation such as failure to comply with ESA Section 7(a)(2), plaintiffs need only demonstrate that compliance could protect their concrete interests. ((9th Cir. 2005) 420 F.3d 946 revd. in part on other grounds by Nat. Assn of Home Builders v. Defenders of Wildlife (2007) 551 U.S. 644.) The court found that adequate consultation and further negotiation of contracts could lead to greater protections for the delta smelt and as a result, NRDC had standing in the case.

Finally, the court held that the district court improperly concluded ESA Section 7(a)(2) did not apply to the contracts due to the water shortage provision. The district court had reasoned that Section 7(a)(2) did not require the Bureau to consult FWS because the Bureau’s discretion was “substantially constrained.” However, the proper standard that triggers consultation under Section 7(a)(2) is whether the agency retains “some discretion” – it does not turn on the degree of that discretion. (Citing Karuk Tribe of Cal. v. U.S. Forest Svc. (9th Cir.2012) 681 F.3d 1006, 1024-1025.) The original contracts gave the Bureau discretion to not renew the contracts at all, but even assuming the Bureau had been required to renew the contracts, nothing prevented the Bureau from taking other action to protect the delta smelt, such as changing the timing of water deliveries that would protect the delta smelt. As a result, because the Bureau retained “some discretion” to take action that benefited the species, it was required to consult with FWS pursuant to Section 7 of the ESA regarding the renewal of the challenged contracts.

KEY POINT

To have standing to challenge alleged procedural violations such as failure to properly consult pursuant to ESA Section 7(a)(2), plaintiffs need only show that compliance could  protect their concrete interests. Additionally, agencies are only exempt from the ESA Section 7(a)(2) requirement to consult if the acting agency does not have any discretion at all to act to protect the endangered or threatened species.