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CEQA Updates

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

Posts from November, 2014

Appellate Court Upholds EIR for Perris Dam Remediation Project in Riverside County

Tuesday, November 18th, 2014

In Paulek v. California Department of Water Resources, 2014 Cal. App. LEXIS 999, the Court of Appeal for the Fourth District upheld the trial court’s denial of a writ of mandate challenging the Department of Water Resources’ (Department) approval of an environmental impact report (EIR) for a dam remediation project at Perris Dam in Riverside County.

Following a 2005 study of the dam’s foundation that found structural deficiencies, the Department developed a three-part plan for long-term improvements. The three parts included: 1) fixing the structural deficiencies in the dam’s foundation; 2) replacing the facility’s outlet tower; and 3) constructing a new emergency outlet extension. Despite an initial notice of preparation of a draft EIR that included all three parts, the final EIR did not include construction of the emergency outlet extension. Petitioner sought a writ vacating the Department’s approval of the EIR.

After establishing the petitioner had standing to bring the lawsuit, the court rejected petitioner’s argument that removal of the emergency outlet extension from the final EIR left a significant environmental impact unmitigated. The California Environmental Quality Act (CEQA) only requires a public agency to mitigate the environmental impacts of “projects that it carries out or approves.” The court found the danger from the current emergency outlet extension existed regardless of whether the seismic improvements were made to the other portions of the dam. As a result, the flooding danger was part of the baseline condition that did not fall within the mitigation requirements of CEQA.

The court also rejected petitioner’s argument that removal of the emergency outlet extension into a separate CEQA analysis constituted improper segmentation. While CEQA prohibits “piecemeal” review of projects to avoid a cumulative significant impact, the court found the emergency outlet was a distinct project. It was not a “reasonably foreseeable consequence” of the dam remediation and tower rebuilding because those two projects could occur and remedy the structural deficiencies without the emergency outlet extension. The outlet extension was also not an integral part of same project and not a future expansion of the dam remediation and tower rebuilding that would change the scope of their impacts. Accordingly, the project was not improperly segmented.

Finally, the court found the Department’s responses to petitioner’s comments on the EIR were adequate. Petitioner’s comments did not point to specific deficiencies in the EIR; rather, the comments generally stated the EIR was inadequate and expressed the need for mitigation. The court held the Department’s reference to portions of the EIR addressing petitioner’s concerns were sufficient stating, “a general comment only requires a general response.”


The court reiterated the standard for improper segmentation of CEQA projects. Although CEQA defines project broadly in favor a comprehensive environmental review, public agencies have discretion to remove discrete portions of a project from the final EIR, even if the removed portion was included in the initial notice.

Ninth Circuit Approves Air Quality Analysis for Expressway Connecting 405 Freeway and Ports of Long Beach and Los Angeles

Monday, November 17th, 2014

In NRDC v. United States Department of Transportation, 2014 U.S. App. LEXIS 20815, the Ninth Circuit Court of Appeals affirmed the district court’s summary judgment in favor of the U.S. Department of Transportation (DOT) and other federal and state defendants (defendants). The court held defendants’ environmental review of an expressway connecting the ports of Los Angeles and Long Beach with the 405 freeway did not violate the Clean Air Act (CAA) and National Environmental Protection Act (NEPA).

As part of the environmental review, defendants conducted an air quality analysis, which included the project’s impact on a fine particulate matter known as PM2.5. The CAA requires the analysis to ensure the project does not cause or contribute to a violation of air quality standards “in any area.” Because there was no PM2.5 receptor in the immediate vicinity of the project, defendants based their data analysis on a receptor five miles away from the project. NRDC contended this violated the CAA because “any area” should be interpreted as requiring a PM2.5 analysis immediately adjacent to the project.

After finding the plain meaning of “any area” was ambiguous in the statute, the court looked to the DOT and U.S. Environmental Protection Agency’s (EPA) interpretation of the phrase. NRDC contended several regulations required the narrow interpretation of “any area.”  However, none of the regulations specifically addressed PM2.5. Thus, the court was not persuaded that the regulations decisively required the analysis within the immediate vicinity during the time defendants conducted the air quality analysis.

Instead, the court looked to guidelines for analyzing PM2.5 levels jointly published by the DOT and EPA in the Federal Register. The court stated the guidelines “implicitly, but authoritatively” interpreted the meaning of “any area” in the context. The guidelines provided several examples of acceptable PM2.5 analysis methods including examples using different locations with similar characteristics. NRDC offered no reason why the court should not rely on the jointly published guidelines. Accordingly, the court held it was reasonable for defendants’ to use the nearby monitor.

The court next rejected NRDC’s argument that defendants violated NEPA because the EIS relied on outdated air quality standards and failed to fully disclose the project’s likely effects on public health. Although the EPA cut the maximum permissible level of PM2.5 in 2006, the new standard did not apply until 2010 and defendants completed the EIS in 2009. The EIS also acknowledged that PM2.5 levels exceeded the new standard, but stated any increase in PM2.5 would be offset by the reduced vehicle congestion from the expressway.


The CAA does not require PM2.5 analysis to be based on impacts immediately adjacent to a project when the nearest sensitive receptor is not located adjacent to the project.  Although courts look to regulations published in the Code of Federal Regulations first for interpretation of ambiguous statutory phrases, reliance on other sources is permitted in circumstances such as this when guidelines have been published in the Federal Register and clarify the meaning of an otherwise undefined statutory term.

Appellate Court Requires Supplemental EIR for San Diego County’s Climate Action Plan

Monday, November 17th, 2014

In an unpublished decision in Sierra Club v. County of San Diego, 2014 Cal. App. Unpub. LEXIS 7762, the California Court of Appeal for the Fourth District granted a writ of mandate to enforce a mitigation measure in San Diego County’s (County) 2011 general plan update to reduce greenhouse gas (GHG) emissions in the County.

In response to the mandate in AB 32 that the state reduce its GHG emissions to 1990 levels by 2020, the County adopted a series of climate change-related mitigation measures.  One such mitigation measure was CC-1.2, which required the County to prepare a climate action plan (CAP) that included more detailed GHG emissions targets and deadlines to reduce the County’s GHG emissions in accordance with AB 32.

Sierra Club contended the CAP adopted by the County violated the California Environmental Quality Act (CEQA) by failing to include adequate analysis of the environmental impacts and failing to comply with the requirements of Mitigation Measure CC 1.2. Sierra Club also challenged the County’s related guidelines that permitted projects that fall below a bright line threshold (hereafter “Thresholds Project”) to avoid detailed GHG analysis in future project-level environmental documents. The court found that the County failed to comply with CC-1.2 for three reasons. First, the CAP did not include enforceable GHG emissions as required by CC 1.2. Instead, the County described the emissions reductions strategies as “recommendations.” Second, the CAP did not contain “more detailed deadlines” as required by CC 1.2 and instead included only the final 2020 goal without incremental emissions objectives. The County also failed to cite any specific evidence in the record that people would participate in the programs to achieve the target reductions.

The court also found the County failed to make adequate finding regarding the environmental impact of the CAP and Thresholds project. The County improperly assumed the CAP and Thresholds project was part of the general plan update so the County did not analyze the environmental impacts of the CAP and Thresholds project itself. Because the general plan update’s plan-level EIR did not analyze the CAP and Thresholds project, the court required the County to complete a separate EIR.

The court next concluded the County violated CEQA section 21081.6 by failing to incorporate mitigation measures directly into the CAP. Section 21081.6 requires public agencies to include enforceable mitigation measures directly into the adopted plans.  

Finally, the court held there was no substantial evidence to support the County’s conclusion that a supplemental EIR was not required. The details of the CAP were not available during the completion of the Program EIR for the general plan update. As a result, key elements such as baseline GHG emission levels and monitoring programs were not considered in the Program EIR. Accordingly, the court affirmed the trial court’s decision that a supplemental EIR was required to ascertain the environmental impacts of the CAP and Thresholds project.


Appellate Court Affirms Discharge of Writ for Lancaster Development

Wednesday, November 5th, 2014

In an unpublished decision in Quartz Hill Cares v. City of Lancaster, 2014 Cal. App. Unpub. LEXIS 7571, the Court of Appeal for the Second District upheld the trial court’s discharge of a writ of mandate challenging an addendum to the Final Environmental Impact Report (FEIR) for a commercial retail development in the City of Lancaster (City).

The court clarified its previously ruling in Quartz Hill Cares v. City of Lancaster (Quartz I), 2012 Cal. App. Unpub. LEXIS 2026, in which the court held the analysis of one project alternative in the FEIR lacked adequate supporting evidence. (For a complete analysis of Quartz I by the Thomas Law Group see our previous blog post: Following Quartz I, the City adopted an addendum to the FEIR supplying the missing data to support rejecting the project alternative and the trial court discharged the writ. 

Petitioner contended the trial court improperly discharged the writ because Quartz I required decertification of the entire FEIR. The court emphasized that the disposition must be read in conjunction with the opinion as whole. Although one sub-heading of the Quartz I opinion stated “Certification of the FEIR must be reversed[,]” the court held there was no ambiguity in the Quartz I disposition when read as a whole. Quartz I rejected all of petitioner’s challenges except for a narrow portion of the analysis of one alternative. Accordingly, the City was not required to decertify the entire FEIR to comply with the Quartz I decision. 

The court also rejected petitioner’s claim that the deficient portion of the FEIR was not severable from the FEIR. The trial court held that under Public Resources Code section 21168.9, the trial court had flexibility to tailor a remedy to fit the specific CEQA violation. Here, the deficiency was narrow and discrete, so the trial court did not err in finding that one section severable from the remainder of the FEIR.

Finally, the court rejected petitioner’s argument that the trial court erred in failing to require the City to recirculate the revised portion of the FEIR. Because Quartz I did not decertify the entire FEIR, an addendum was proper and circulation for public review was not required.