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CEQA Updates

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

Posts from January, 2015


Ninth Circuit Reverses District Court and Upholds Biological Opinion Protecting Endangered Species in the Delta . . . Again

Thursday, January 29th, 2015

In San Luis & Delta-Mendota Water Authority v. Locke, 2014 U.S. App. LEXIS 24351, the Ninth Circuit reversed the district court and upheld a National Marine Fisheries Service’s (NMFS) biological opinion that determined continuing water extractions in the Central Valley would jeopardize several threatened and endangered species. The court also affirmed the district court on three cross-appeal issues related to the biological opinion.

The U.S. Bureau of Reclamation (Reclamation) requested the biological opinion in accordance with the Endangered Species Act (ESA).  Following new designations of certain species and habitats in the Sacramento-San Joaquin Delta (Delta), Reclamation asked NMFS to evaluate the impact of California’s complex water distribution system on five Salmonid species of anadromous fish and the Southern Resident orca. NMFS determined continued operations of the system would jeopardize the existence of all but one of the fish species and recommended several “reasonable and prudent alternatives” (RPAs) to change how Reclamation pumped water from the Delta. Subsequently, numerous water districts and other stakeholders (plaintiffs) sued Reclamation and other federal agencies arguing that portions of the biological opinion were arbitrary and capricious in violation of the Administrative Procedures Act (APA).

The court’s opinion mirrored its previous decision in San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (summarized here: http://www.thomaslaw.com/blog/ninth-circuit-reverses-district-court-upholds-biological-opinion-protecting-endangered-delta-smelt/) in which the court similarly reversed the district court and upheld a biological opinion regarding the Delta Smelt. Similar to Jewell, the court held the trial court erred in considering evidence outside the record. The court reasoned the district court improperly used the extra-record evidence to question NMFS’ scientific judgments.

The court then considered each of plaintiffs’ challenges to the biological opinion and found that the district court did not afford NMFS the proper deference under the APA. Paralleling its reasoning in Jewell, the court upheld NMFS’ use of raw salvage figures to estimate the number of fish trapped in the Delta’s pumps. The court also concluded that NMFS did not act arbitrarily or capriciously in finding the continued water allocations would jeopardize the viability and habitat of the listed species. The court reasoned NMFS properly characterized the baseline status of the populations, correctly applied the ESA, considered all relevant factors and adequately supported its conclusions with the best available evidence. Accordingly, the district court erred in questioning the scientific judgments of NMFS.

The court also held the trial court erred in requiring NMFS to explain why each RPA was necessary over other alternatives to preserve the listed species. The ESA imposed no such burden and only required NMFS to “fairly conclude–based on the record­­–that the proposed RPAs do not further jeopardize the listed species or adversely affect critical habitats.”

Finally, the court upheld the district court on three cross-appeals in which the district afforded NMFS the proper deference in drafting the biological opinion.

KEY POINT

The court reiterated the holding from San Luis & Delta-Mendota Water Authority v. Jewell that courts should be highly deferential to the scientific expertise of agencies such as NMFS when reviewing biological opinions. Litigants should also strongly consider the terse summation of the Delta situation guiding the Ninth Circuit in this case and likely in future cases as well––“People need water, but so do fish.”

Court Holds County’s Abandonment of Rights-of-Way is Not a Project Under CEQA

Wednesday, January 28th, 2015

In an unpublished decision, Delucchi v. County of Colusa, 2015 Cal. App. Unpub. LEXIS 231, the California Third District Court of Appeal denied a petition for a writ of mandate challenging Colusa County’s abandonment of purported public rights-of-way and held the abandonment did not constitute a project under the California Environmental Quality Act (CEQA).

The rights-of-way at issue provided access to petitioner’s sixty-acre, landlocked private duck hunting club. Petitioner initially entered into private easements with neighbors to cross the neighbors’ land and access the parcel. When disputes arose with the neighbors, petitioner sued the neighbors and the County, seeking to protect access to his property purportedly as public rights-of-way. Petitioner based his claim on a 1910 subdivision map, which recorded miles of public rights-of-way dedicated by the then-owner and arguably accepted by the County as providing access to the mapped area.

In response to the lawsuit, the County adopted a resolution abandoning the purported public rights-of-way and stating the abandonment was exempt from CEQA.

Petitioner first contended the abandonment was void on its face because the Count did not expressly find the public rights-of-way could not be used for non-motorized transportation. The court rejected this argument explaining the County was only required to consider the evidence presented to it and petitioner failed to satisfy his burden of presenting evidence at the administrative level that the rights-of-way could be used for non-motorized transportation.

To abandon a public right-of-way, the County must find: (1) the right-of-way is unnecessary for present and prospective public use; and (2) the abandonment is in the public interest. Petitioner contended neither element was satisfied. However, the court disagreed and found substantial evidence supported the County’s findings. The court reasoned the rights-of-way were unnecessary because they did not lead to any public land, many ran through irrigation ditches and did not connect to county-maintained roads, and landowners relied of private easements for property access. The court also held abandonment was in the public interest because it avoided litigation costs and promoted the public safety.

The court also rejected petitioner’s contention that the abandonment constituted a project under CEQA. An action is a project only if “the activity may cause a direct, or reasonably foreseeable indirect, physical change in the environment.” The court held there was no direct change because the abandonment did not involve any construction or maintenance activity and any benefit to the environment came from maintaining the status quo. Further, there was no indirect change because petitioner’s speculative claims of landowner’s future conduct did not constitute a “necessary step in a chain of events which would culminate in physical impact on the environment.”

Finally, the court stated that even if the abandonment was a project under CEQA, the common sense exception applied because there was no possibility that maintaining the status quo would have a significant effect on the environment.

Second District Court of Appeal Upholds EIR for Development Along Santa Clara River

Monday, January 26th, 2015

In an unpublished opinion in Santa Clarita Organization for Planning and the Environment v. City of Santa Clarita, 2014 Cal. App. Unpub. LEXIS 8998, the California Second District Court of Appeal reversed the trial court and denied a petition for a writ of mandate challenging a 185-acre development (the Project) along the Santa Clara River near the City of Santa Clarita (the City). The court also rejected SCOPE’s cross appeals, allowing the mixed use development project to move forward.

The City owns a portion of the dry Santa Clara River corridor running through the Project site and the Project provides that the City will sell four of the acres to the developer for installation of buried bank stabilization. The Project also preserves a corridor of the dry riverbed, and results in dedication of all developer-owned river corridor property to the City.

The court reversed the trial court in two respects. First, the court held the City did not improperly incorporate by reference other documents into the environmental impact report (EIR). The court rejected SCOPE’s argument that the description or summary of the incorporated document must appear at the precise point in the EIR where the document was incorporated, and rejected all of SCOPE’s examples of alleged inadequate discussion of the documents incorporated by reference. Additionally, while the EIR may not have included an adequate description or summary for a few documents incorporated by reference, the court held SCOPE failed to show any prejudicial error.

Second, the court held the EIR adequately analyzed the cumulative biological effects of the Project. SCOPE contended the analysis was too broad because the EIR relied upon an analysis of the entire 1,036,571-acre Santa Clara River Watershed, while the Project was only 185 acres. However, the court noted a preference by the EPA for watershed-wide analyses and held the City did not abuse its discretion in considering the watershed-wide analysis of the Project’s cumulative impacts.

As to the cross appeals, the court held the Project was consistent with the City’s general plan. The court found the general plan amendment’s description of the preserved river corridor was not vague and the City did not abuse its discretion in finding the Project was consistent with the General Plan’s goal of promoting preservation of the river as open space.

The court also declined to question the correctness of the EIR’s environmental conclusions and found substantial evidence supported the City’s finding that the Project would not have a significant water quality impact related to chloride in the river.

Finally, the court held the trial court properly sustained the City’s demurrer to SCOPE’s claims regarding the Santa Monica Mountains Conservancy Act (the Act), focusing primarily on the lack of a private right of enforcement of the Act..

Appellate Court Upholds EIR for Fresno County Mining Project

Monday, January 26th, 2015

In a partially published opinion in Friends of the Kings River v. County of Fresno (2014) 232 Cal.App.4th 105, the California Court of Appeal for the Fifth District affirmed the denial of a writ of mandate challenging Fresno County’s (the County) environmental review of a 1,500-acre aggregate mine project.

The County initially approved the environmental impact report (EIR) for the mine in the Sierra Nevada foothills near the towns of Sanger and Reedley in October 2012. Petitioner subsequently appealed the County’s decision to the State Mining and Geology Board (SMGB) alleging violations of the Surface Mining and Reclamation Act (SMARA). The SMGB granted the petition and remanded the reclamation plan for the site back to the County. In August 2013, the County adopted a revised reclamation plan and approved an addendum to the EIR in compliance with SMARA. Petitioner appealed to the SMGB a second time, but the SMGB upheld the County’s approval of the project.

While the first SMGB appeal was pending, petitioner also filed a petition for writ of mandate in Fresno County Superior Court.  The trial court rejected petitioner’s challenges under the California Environmental Quality Act (CEQA) and SMARA.

On appeal, Petitioner argued there was no project for the County to approve because the SMGB’s remand invalidated the reclamation plan. In rejecting petitioner’s argument, the court explained an administrative agency’s authority is limited to powers provided by statute. Under SMARA, the SMGB does not have authority to nullify a lead agency’s decision—the SMGB only has authority to remand for reconsideration or in limited circumstances take over as lead agency.  Accordingly, the SMGB actions had no effect on the County’s certification of the EIR or its approval of the project.  For this reason, all evidence related to the County’s reconsideration of the reclamation plan post-dated certification of the EIR and was not admissible for purposes of evaluating petitioner’s CEQA claims.

The court also rejected petitioner’s argument that the County violated CEQA by failing to adequately mitigate for the loss of 600 acres of farmland. The three mitigation measures recommended by the County included 1) continuing agricultural use of the land up until mining begins; 2) requiring 602 acres be maintained as an agriculture buffer zone for the life of the project; and 3) requiring used mining areas be reclaimed to farmland throughout the project. Still, petitioner contended the County was required to establish permanent agriculture conservation easements (ACEs). The court held that while ACEs may mitigate direct loss of farmland, ACEs are not required by CEQA in all cases where they are economically feasible.  Rather, here the County considered the use of ACEs along with other mitigation measures and selected the three measures listed above.  The court declined to require the County to mandate ACEs instead of the measures it chose.

In the unpublished portions of the opinion, the court held the trial court did not err by ruling on the writ petition, and petitioner could not raise a new SMARA claim for the first time on appeal. The court also rejected other various challenges to the EIR under CEQA.

KEY POINT

When a project presents a loss of farmland, CEQA does not require permanent agriculture conservation easements (ACEs) in every situation where ACEs are feasible. Rather, ACEs are just one mitigation measure that lead agencies should consider to mitigate a project’s impact.

Court Upholds Agency Discretion to Issue a Timber Plan in Accordance with Statutory Requirements

Monday, January 12th, 2015

In Center for Biological Diversity v. California Department of Forestry & Fire Protection, 2014 Cal. App. LEXIS 1181, the First District Court of Appeal affirmed the trial court’s decision to deny a petition for a writ of mandamus challenging the Department of Forestry and Fire Protection’s (Cal Fire) approval of a Nonindustrial Timber Management Plan in Mendocino County.

The Plan authorized the logging of approximately 615 privately-held acres of north coast redwood and Douglas fir forest. The case centered on a 17-acre “Late Succession Forest Stand” (LSFS), as defined by the Forest Practice Rules promulgated by the State Board of Forestry, within the Plan area that had potential to provide habitat for the marbled murrelet, an endangered species of seabird.

The court rejected petitioners’ contention that the Plan failed to adequately assess cumulative impacts of logging in the LSFS. The court stated petitioners improperly framed the issue as a failure to provide adequate information and analysis. Instead, the proper question was whether substantial evidence supported Cal Fire’s conclusions.

The court found that Cal Fire followed the methodology required by the Forest Practice Rules and the Plan addressed issues of murrelet presence, continuity of habitat, impacts of logging on late seral habitat functionality, maintenance of functional late seral nesting habitat, and feasibility of alternatives.  Cal Fire participated in at least two site inspections and considered analyses by a privately retained forester and its own experts, recommendations by the Department of Fish and Wildlife, and public participation and comment. Accordingly, petitioners failed to satisfy their burden of showing there was not substantial evidence in the record. The same reasoning supported the court’s conclusion that petitioners failed to satisfy their burden in arguing the Plan violated the California Endangered Species Act by destroying murrelet habitat.

The court also held Cal Fire was not required to recirculate the Plan. Although a Cal Fire biologist recommended additional protective measures for murrelet habitat, this recommendation did not constitute significant new information. The court reasoned the recommendation was adequately incorporated into the mitigation measures and as a result, substantial evidence supported Cal Fire’s decision not to recirculate the Plan.

Finally, the court rejected petitioners’ separate claim against the Department of Fish and Wildlife, which alleged that the Department violated the public trust by failing to submit a nonconcurrence to the Plan. The court found that the Department’s decision was purely discretionary and, as a result, the court reasoned petitioners had no authority to compel the Department through mandamus to submit a nonconcurrence to the Plan.

KEY POINT

Despite petitioners’ characterization of nearly every factual determination as one to be determined as a matter of law, the court applied the substantial evidence standard of review and  reiterated the need for courts to defer to lead agencies in making determinations about environmental impacts of projects. Here, Cal Fire followed the methodology required by statute and, as a result, the court’s inquiry ended there.

Fourth Appellate District Publishes Opinion Requiring Supplemental EIR for San Diego County’s Climate Action Plan

Monday, January 12th, 2015

On November 24, 2014, the Court of Appeal for the Fourth District granted a request to publish the recent case Sierra Club v. County of San Diego, 2014 Cal. App. LEXIS 1077. In the decision, the appellate court affirmed the trial court and granted a writ of mandate requiring a supplemental environmental impact report (EIR) for San Diego County’s Climate Action Plan (CAP).

The publication of the opinion comes on the heels another key California environmental law case in Cleveland National Forest Foundation v. San Diego Association of Governments, 2014 Cal. App. LEXIS 1070. In both cases, the Fourth Appellate District examined the application of Governor Schwarzenegger’s 2005 Executive Order No. S-3-05 and the Legislature’s subsequent climate change mandates in AB 32 and SB 375. The executive order required statewide reduction of greenhouse gas emissions to 2000 levels by 2010, to 1990 levels by 2020, and to 80 percent below 1990 by 2050.

In the newly-published Sierra Club opinion, the court emphasized the specific evidentiary support required by lead agencies in complying with the mandates of the 2005 executive order and subsequent legislation. The executive order “requires consistent emissions reductions each year from 2010 through 2020 and then a greater quantity of emissions reductions each year from 2020 through 2050.” Lead agencies such as the County cannot rely on compliance with other state and federal statutes and planned but unfunded programs to meet the greenhouse gas emission reduction requirements. A “good faith, reasoned analysis” under CEQA requires more than citations to entire appendices in the County’s CAP; it requires specific evidence that people will participate in the various programs to the extent necessary to achieve the emissions reductions.

A complete summary of the case is available here: http://www.thomaslaw.com/blog/appellate-court-requires-supplemental-eir-san-diego-countys-climate-action-plan/.

Appellate Court Denies Attorney Fees in CEQA Litigation Over Washoe Meadows State Park Land Transfer

Monday, January 12th, 2015

In an unpublished decision in Washoe Meadows Community v. California Department of Parks & Recreation, 2014 Cal. App. Unpub. LEXIS 9256, the First District Court of Appeal reversed the trial court’s order granting petitioner’s attorney fees and held Washoe Meadows Community (Washoe) did not achieve its primary relief sought through the litigation.

In November 2011, Washoe filed a petition for a writ of mandate challenging the State Park and Recreation Commission’s (Commission) approval of a land swap between Washoe Meadows State Park and the Lake Valley State Recreation area. Washoe alleged several violations of the California Environmental Quality Act including the failure to adopt a statement of overriding considerations (SOC) and mitigation, monitoring, and reporting program (MMRP). Washoe sought an order requiring the Commission to set aside the certification of the environmental impact report (EIR) and suspend any activities on the project.

Following the lawsuit, in January 2012 the Commission corrected several procedural defects in the approval process including the adoption of an SOC and approval on an MMRP. Washoe filed a second suit challenging the January 2012 approval and adequacy of the EIR. Washoe and the Commission stipulated to the dismissal of the November 2011 lawsuit, but among other conditions, allowed Washoe to still seek attorney fees for that lawsuit.

On Washoe’s motion for attorney fees from the first lawsuit, the trial court held Washoe was a “successful party” under California Code of Civil Procedure section 1021.5. The trial court reasoned that even though Washoe did not obtain judicial relief, Washoe’s lawsuit was the catalyst that motivated the Commission to provide relief on a “significant issue.”

In reversing the trial court, the court held the trial court erred by only requiring Washoe to succeed on a “significant issue.” Instead, under the catalyst theory, the court stated Washoe must succeed on the primary relief it sought in the November 2011 litigation. Washoe did not succeed in setting aside the certification of the EIR or suspending the project and Washoe could not establish the November lawsuit influenced the content of the SOC or MMRP in any way. Washoe merely effectuated a “limited do-over” of the project’s approval.

In concluding Washoe was not entitled to attorney fees for its November 2011 lawsuit, the court clarified that Washoe’s case for the primary relief is still pending in the January 2012 lawsuit. As a result, Washoe would still be entitled to seek attorney fees in that case.

Court Orders Supplemental EIR for Ventura County Medical Center Building Due to 15 Foot Increase in Building Height

Monday, January 12th, 2015

In Ventura Foothill Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429, the Court of Appeal for the Second Appellate District affirmed the trial court’s decision requiring Ventura County (the County) to prepare a supplemental environmental impact report (EIR) to evaluate the impacts associated with increasing the height of a medical office building previously approved to be developed within the Ventura County Medical Center from 75 feet to 90 feet.

The County originally approved an EIR in 1993 stating the building would have a maximum height of 75 feet. In 2005, the County prepared an addendum to the 1993 EIR to evaluate potential impacts of relocating the building a few hundred feet northwest from the original location. The addendum only addressed relocation of the building and did not disclose that the building height would increase by twenty percent.   The County filed a Notice of Determination (NOD) after approving both the original 1993 EIR and the 2005 addendum. In May of 2008, a community group known as Ventura Foothill Neighbors, learned about the change in height when a citizen noticed equipment at the construction site and inquired what was being built. Approximately two months after discovering the change, Ventura Foothill Neighbors filed a petition for writ of mandate and sought a preliminary injunction to stop construction of the building.  The trial court declined to enjoin construction and the County completed the building in 2010.

The key question before the court was whether the statute of limitations expired before Ventura Foothill Neighbors filed its lawsuit.  The County argued that the lawsuit should be viewed as a challenge to the 1993 EIR or at least the 2005 addendum and, therefore, the lawsuit was filed well after the 30 day statute of limitation ran under either of the NODs.  The court disagreed. The court reasoned filing of the NOD triggers a 30-day window for all CEQA challenges “to the decision announced in the notice.” In this case, neither the 1993 EIR nor the 2005 addendum mentioned the change in height of building. As a result, respondent had 180 days from when it “knew or reasonably should have known the project differed substantially from the one described in the EIR.”  As Ventura Foothill Neighbors discovered the change in May of 2008 and filed its lawsuit in July of 2008, the lawsuit was timely.

The court also held the change in height from 75 feet to 90 feet constituted a substantial change in the project requiring a major revision in the EIR.  Therefore, the court concluded that the County should have prepared a supplemental EIR to analyze the impacts associated with the change in height.

KEY POINT

An NOD filed creates a short statute of limitations to challenge actions of the lead agency pursuant to CEQA.  However, an NOD only covers the project as defined in the NOD and associated environmental document (e.g. EIR, addendum, etc.).  To avoid uncertainty and reduce the potential for future litigation, a lead agency should make sure to clearly define the project in an NOD and associated environmental document.

CARB’s Authority to Order Recall and Repair of Heavy-Duty Vehicle Engines Upheld

Monday, January 5th, 2015

In Engine Manufacturers Association v. State Air Resources Board, 2014 Cal. App. LEXIS 1075, the California Third District Court of Appeal reversed the trial court’s judgment on the pleadings and upheld the California Air Resources Board’s (CARB) authority to adopt regulations requiring the testing and recall of in-use heavy-duty engines to protect air quality.

California Health and Safety Code section 39003 tasks CARB with “coordinating efforts to attain and maintain ambient air quality standards . . . and to systematically attack the serious problem caused by motor vehicles[.]” As part of its effort to improve air quality, CARB requires most vehicle engines certified for sale in California to include an onboard diagnostic system (OBD) that monitors and detects emissions malfunctions. CARB mandates rigorous testing that ensures new engines include a functioning OBD system, as well as compliance by a sample of in-use heavy-duty vehicle engines model year 2010 and later. If the tests show the OBD system does not function properly in the in-use engines, CARB may order the recall and repair of the engine class.

The Engine Manufacturers Association challenged the part of the regulations related to in-use engines. The Association sought a judicial declaration that the regulations exceeded CARB’s statutory authority.  On appeal, the court rejected the Association’s argument and held that, because CARB raised a defense in its answer, the trial court erred in granting summary judgment on the pleadings.

The court explained Health and Safety Code section 39003, in conjunction with other statutes, provides broad authority for CARB to regulate air quality in California. More specifically, Health and Safety Code section 43013 grants CARB the authority to “adopt and implement motor vehicle emission standards, in-use performance standards, and motor vehicle fuel specifications[.]” The court found the challenged regulations furthered CARB’s purpose by facilitating prompt repair of emission-related engine malfunctions and providing an incentive to manufacturers to make improvements in emission system durability.

The court further held the absence of specific statutory provisions regarding compliance testing of in-use heavy-duty engines did not mean the challenged regulations were invalid. Instead, it indicated only that the Legislature did not itself desire to determine the proper method of regulating such testing. The court went on to explain that under section 43013, CARB’s regulations must be “necessary, cost effective, and technologically feasible.” Accordingly, if the regulations were “unduly onerous and costly,” as the Association alleged, the regulations could exceed CARB’s authority. But because this question could not be answered on the pleadings, the trial court erred by granting judgment on the pleadings.

The court next held the trial court erred in finding the regulations were not “reasonably necessary” for CARB to carry out its intended purposes. The Association had the burden of establishing the regulations were not reasonably necessary, but did not even address the issue in its pleadings. Accordingly, the Association failed to meet its burden and judgment on the pleadings was improper.

KEY POINT

The court emphasized CARB’s broad authority to develop and enforce regulations to improve air quality in the state. Although no statute specifically allows CARB to order the recall and repair of engines for compliance with air quality monitoring systems, the Legislature’s broad directive to “attain and maintain ambient air quality standards” and “systematically attack the serious problem caused by motor vehicles” empowers CARB to enact such measures.

Appellate Court Denies Writ Challenging EIR for Expansion of Marin County Landfill

Monday, January 5th, 2015

In an unpublished opinion in No Wetlands Landfill Expansion v. County of Marin, 2014 Cal. App. Unpub. LEXIS 8866, the California Court of Appeal for the First Appellate District denied a petition for a writ of mandate challenging the environmental impact report (EIR) for a proposed landfill expansion in Marin County. The court affirmed in part and reversed in part the trial court decision.

The decision was the court’s second opinion related to the EIR for the 420-acre Redwood Landfill near the Petaluma River. In the previous decision (summary available here: http://www.thomaslaw.com/blog/court-holds-the-integrated-waste-management-act-does-not-vest-a-county-with-any-authority-over-issuance-of-a-solid-waste-facilities-permit-and-therefore-the-county-is-not-the-decisionmaking-body-fo/) the court concluded certification of the EIR was not appealable to the Marin County Board of Supervisors and remanded to the trial court to resolve the challenges to the adequacy of the EIR.

Several environmental and community groups challenged the adequacy of the EIR. First, landfill opponents argued it was improper for Marin County Environmental Health Services (Marin EHS) to consider a nonspecific offsite project alternative. However, the court explained that most of the land in Marin County was unsuitable for an alternative landfill site.  Thus, it was reasonable under the circumstances to include a hypothetical project alternative that demonstrated why an expansion of Redwood Landfill had the least significant environmental impact.

Next, the court concluded the EIR did not improperly defer mitigation measures to address potential sea-level rise and groundwater contamination. As to sea-level rise, the mitigation measure required the landfill developers to prepare a long-term flood-protection plan that took into account the effects of climate change. The court held it was reasonable given the uncertainty of rising sea-levels to not set a specific levee height and instead to re-evaluate the plan every five years.

As to groundwater, one challenged mitigation measure required an analysis of the possibility of leachate contaminating groundwater from the early years of the landfill when operators buried waste in trenches of an unknown depth. The second measure required a plan approved by the Regional Water Quality Control Board if leachates were found. Landfill opponents contended the measures lacked objective criteria. However, the court reasoned the two mitigation measures were part of a larger leachate monitoring system that complied with California Code of Regulations. As a result, the court held the mitigation measures were adequate.

The court next upheld the EIR’s discussion of potential health impacts from air emissions. Landfill opponents contended it was improper for the EIR to jointly consider the larger PM-10 and smaller PM-2.5 particulate matter and to not consider the noncancer health risks from toxic air contaminants. However, despite other authorities requiring alternative methodologies for analysis, this approach was consistent with the CEQA guidelines prepared by the Bay Area Air Quality Management District, which were in effect at the time the EIR was prepared.

Lastly, the court held the EIR sufficiently analyzed greenhouse gas emissions. The court rejected the landfill opponents’ argument that Marin EHS was required to consider the cumulative effects on greenhouse gas emissions of landfills on a global scale and not just in Marin County. The court explained this was “entirely unrealistic” and declined to impose such a burden.

The court also upheld the use of the “LandGEM” model to predict emissions from the project. The court emphasized it was not the court’s role to substitute its judgment for the reviewing agency and found there was substantial evidence to support the use of the model. The court also held landfill opponents failed to satisfy their burden of showing the proposed onsite power facility fueled by landfill gas would not offset future greenhouse emissions.