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CEQA Updates

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

Posts from June, 2015

Cleveland National Forest Foundation v. San Diego Association of Governments S223603 (D063288; 231 Cal.App.4th 1056; San Diego County Superior Court; 37-2011-00101593-CU-TT-CTL.)

Friday, June 26th, 2015

Petition for Review Granted

March 11, 2015

Current Status

Opening brief on the merits filed on May 8, 2015.

Answer brief on the merits is due on July 10, 2015.

Court’s Statement of Issues Presented

Must the environmental impact report (EIR) for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)?

Summary of the Parties’ Arguments

In their Petition for Review, the San Diego Association of Governments (SANDAG) argues that the EIR fully and adequately analyzed the project’s greenhouse gas impacts.  The EIR contains a 39-page analysis of the existing greenhouse gas emission levels and impacts expected to occur from both transportation and non-transportation sources under the project.   SANDAG further argues the analysis complies with CEQA Guidelines, section 15064.4, and SANDAG did not abuse its discretion by relying on that section for the significance criteria used in the EIR’s analysis of greenhouse gas impacts.  SANDAG asserts that the EIR does not omit critical factual information on greenhouse gas emissions and it was not required to include an analysis of the project’s consistency with Executive Order S-03-05 because there is no legal authority requiring such an analysis in the EIR.

In their Answer to Petition for Review, plaintiffs Cleveland National Forest Foundation, et al. (CNFF) argue the Court of Appeal’s decision requiring consideration of Executive Order S-3-05 is firmly grounded in settled CEQA principles.  CNFF assert that SANDAG violated CEQA by failing to analyze its regional transportation plan’s inconsistency with the long-range emissions reduction goals expressed in Executive Order S-3-05.  CNFF argues the EIR’s purpose is to serve as an informational document, and SANDAG’s failure to include such an analysis in the EIR deprived the public and decisionmakers of relevant information.  CNFF also argues the Court of Appeal’s opinion does not create confusion or conflicts of law.  According to CNFF, the case simply involves an agency failing to disclose and analyze a project’s long-term impacts, as required by CEQA.  CNFF further argues the Court of Appeal’s opinion does not undercut agency discretion to determine significance thresholds; it only requires agencies to exercise their discretion in light of CEQA’s fundamental informational purpose.


Plaintiffs and Respondents:

  • Cleveland National Forest Foundation, Represented by Shute, Mihaly & Weinberger and Daniel P. Selmi
  • Sierra Club, Represented by Shute, Mihaly & Weinberger and Daniel P. Selmi
  • Center for Biological Diversity, Represented by Center for Biological Diversity
  • Creed-21, Represented by Briggs Law Corp
  • Affordable Housing Coalition of San Diego County, Represented by Briggs Law Corp

Defendants and Appellants:

  • San Diego Association of Governments, Represented by Sohagi Law Group, LLP
  • San Diego Association of Governments Board of Directors, Represented by Sohagi Law Group, LLP

Intervener and Appellant:

  • The People of the State of California, Represented by The Attorney General

Procedural History

SANDAG certified an EIR for its 2050 Regional Transportation Plan/Sustainable Communities Strategy (the transportation plan) in October, 2011.  CNFF, et al. filed petitions for writ of mandate, challenging the EIR as insufficient under CEQA.  The Attorney General thereafter moved to intervene on behalf of the People of the State of California.

The Superior Court of San Diego County consolidated the cases and granted the petitions in part, finding the EIR violated CEQA because it failed to: (1) analyze the inconsistency between the transportation plan’s greenhouse gas emissions impacts after 2020 and the state’s policy goals presented in Executive Order S-3-05; and (2) adequately address mitigation measures for the transportation plan’s greenhouse gas emissions impacts.  After making those two findings, the trial court declined to address plaintiff’s other challenges.

On appeal, SANDAG argued the EIR complied with CEQA in both respects above.  CNFF cross-appealed arguing the EIR further violated CEQA by failing to: (1) analyze a reasonable range of alternatives; (2) adequately analyze and mitigate the transportation plan’s air quality impacts; and (3) adequately disclose the transportation plan’s impacts on agriculture.  The People cross-appealed, also arguing the EIR violated CEQA because it did not analyze or mitigate the transportation plan’s impacts from particulate matter pollution.

The Fourth District Court of Appeal agreed with CNFF’s and the People’s arguments, holding the EIR violated CEQA for all of the identified reasons above.  Focusing specifically on the EIR’s analysis of the transportation plan’s greenhouse gas impacts, the court held SANDAG prejudicially abused its discretion by omitting from the EIR a discussion of the transportation plan’s consistency with the state climate policy of continual greenhouse gas emissions reductions, presented in Executive Order S-3-05.  According to the court, failing to include such an analysis deprived the public and decisionmakers of important information regarding the project’s greenhouse gas emissions.  The court additionally found no substantial evidence supported the agency’s determination the EIR adequately addressed mitigation for the transportation plan’s greenhouse gas emissions impacts.

Case Implications

If the Court of Appeal’s opinion is upheld, local agencies would be required to consider consistency with EO S-3-05 and other executive orders related to climate change when analyzing a project’s greenhouse gas impacts.  This interpretation would impose on local agencies new obligations that are not supported by CEQA, the CEQA Guidelines, or California case law.  Requiring agencies to comply with executive orders, specifically EO S-3-05, would take away their discretion to establish their own significance thresholds and to rely on AB 32 when evaluating a project’s greenhouse gas impacts.

Key Cases that May be Affected by the Court’s Ruling

  • Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, Professional Engineers in Cal. Gov’t v. Schwarzenegger (2010) 50 Cal.4th 989;  Here the court held that “it is for the Legislature to make public policy,” rather than the Governor via executive order.
  • Carmel Valley Fire Protection Dist. v. State of Cal. (1987) 190 Cal.App.3d 521;  Here, the court held that executive orders establish state policy and are not binding on local districts.
  • Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327;  The court evaluated the use of AB 32 as a CEQA significance threshold for a project’s greenhouse gas impacts.
  • Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059;  The court discussed the discretion CEQA grants agencies to develop their own significance thresholds.
  • Sacramento Old City Ass’n. v. City Council (1991) 229 Cal.App.3d 1011, Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99;  Here, the court held that the courts may not overturn an agency’s discretionary decisions and substitute their own judgment.

California Building Industry Assn. v. Bay Area Air Quality Management Dist., S213478. (A135335, A136212; 218 Cal.App.4th 1171; Alameda County Superior Court; RG10548693.)

Friday, June 26th, 2015

Petition for Review Granted

November 26, 2013

Current Status

Fully briefed by the parties as of March 17, 2014.

Amicus briefing complete as of May 28, 2014.

Court’s Statement of Issue(s) Presented

Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq., hereinafter CEQA) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

Summary of the Parties’ Arguments

California Building Industry Association (BIA) argues Toxic Air Contaminant (TAC) Receptor Thresholds established by Bay Area Air Quality Management District (BAAQMD) are impermissible because they require an analysis of the impact of the environment on a project and its future users.  BIA argues that the purpose of CEQA is to protect the environment, not to protect projects from the environment.  BIA cites “an unbroken line of cases” that support this position, and cites a “host of other laws” aside from CEQA that protect future users of a project from the environment.  BIA acknowledges that an analysis of impacts of the environment on a project are sometimes required by CEQA in specific situations, but there is currently no general mandate to analyze those impacts, and it is up to the Legislature to create such a mandate if it chooses.  Additionally, BIA argues that CEQA Guidelines section 15126.2(a) and Appendix G, both of which are relied on by BAAQMD, distort the purpose and scope of CEQA, and should thus be rejected.

BAAQMD counters that CEQA properly applies to any project that may expose users to “disagreeable conditions,” regardless of whether the project contributes to those conditions or not.  As relates to its TAC Receptor Thresholds, BAAQMD argues that siting a development in an area with existing odors and high levels of TACs requires the lead agency to analyze those issues and impose mitigation measures to alleviate them, even if the new project makes no contribution to the existing environmental effects.


Plaintiff and Respondent:

  • California Building Industry Association, Represented by Cox Castle and Nicholson LLp

Defendant and Appellant:

  • Bay Area Air Quality Management District, Represented by Bay Area Quality Management District Office of Legal Counsel and Shute Mihaly and Weinberger LLP

Procedural History

BAAQMD formally adopted a series of CEQA thresholds of significance for air contaminants and greenhouse gasses without first conducting CEQA analysis.  BIA filed a petition, challenging the thresholds and the lack of analysis.  The trial court issued a writ of mandate invalidating BAAQMD’s TAC thresholds, agreeing with BIA that adoption of the thresholds was a “project” under CEQA and thus BAAQMD should have conducted environmental review.

The First Appellate District Court reversed the trial court’s holding, finding that the TAC thresholds were not subject to CEQA review for two reasons.  First, the CEQA Guidelines establish the required procedure for enacting generally applicable thresholds of significance, and a prior CEQA review is not part of that process.  Second, the thresholds were not a “project” because the “environmental change” argued by BIA was speculative and not reasonably foreseeable.  The court also held that the TAC Receptor thresholds were not facially invalid and BAAQMD’s approval of them was not arbitrary and capricious because they were supported by substantial evidence.

Amicus Curiae Briefs

  • League of California Cities, County of Tulare, County of Kings, and County of Solano, in Support of Neither Party;  Amici argue CEQA does not require lead agencies to analyze the impacts of the existing environment on projects and their future users.  Amici allege requiring such an analysis would be unnecessary as a policy matter because such impacts are addressed through several other laws and through the exercise of a local public agency’s police power and land use regulations.  Lastly, amici urge the court to affirm the appellate court’s ruling that respondent’s TAC Receptor Threshold do have potentially valid applications.
  • Communities for a Better Environment, in Support of Defendant and Appellant;  Amicus argues CEQA requires an analysis of “existing environmental conditions” where they may have substantial adverse impacts on future users of the project.  Amicus also argues the analysis used for the TAC Receptor Thresholds is an appropriate use of BAAQMD’s authority.  CEQA is a critical tool, both in serving as a venue for communities to participate in decisions that impact them, and in providing a process to ensure informed and well-reasoned decisions are made.  Amicus urges the court to uphold BAAQMD’s interpretation of CEQA, because that would ensure CEQA’s protections extend to all future and existing members of communities suffering from environmental injustice.
  • California Chapter of the American Planning Association and California Association of Environmental Professionals, in Support of Defendant and Appellant;  Amici argue that CEQA’s plain language and clear legislative intent cover human exposure to hazardous or unhealthy environmental conditions.  CEQA provides a clear systematic framework for lead agencies to disclose significant adverse impacts of the existing environment on future users, and lead agencies have been performing this analysis for decades.  Amici argue eliminating this protection by not requiring such an analysis would take away the critically important role CEQA has of maintaining “a quality environment for the people of this state now and in the future.”
  • South Coast Air Quality Management District, in Support of Defendant and Appellant;  Amicus urges the court to conclude that the risk of exposure to TACs should be analyzed under CEQA for a project that proposes to place receptors closer to such risks.  Amicus argues that people living and working near sources of TACs have higher health risks when compared to the general population, and policies promoting infill development can adversely impact environmental justice communities.  Amicus further argues that analyzing the impacts associated with exposing users of a project to TACs is consistent with the requirements of CEQA, as CEQA is full of policies that are specifically aimed at protecting public health and safety.  According to amicus, failing to require such an analysis under CEQA is a lost opportunity to mitigate those impacts.    

Case Implications

If the court rules in favor of BIA, lead agencies would have certainty that they are not required to examine existing environmental effects on a project’s future users, consistent with a long line of cases supporting this position.  A ruling in favor of BAAQMD would add to the analysis lead agencies must undertake to determine a project’s impacts, to also determine whether there will be environmental impacts on project users, arguably an impermissible expansion of the scope of CEQA.

Key Cases that May be Affected by the Court’s Ruling

  • Baird v. County of Contra Coast (1995) 32 Cal.App.4th 1464;  The court held that CEQA does not require an EIR for a project that “might be affected by preexisting conditions, but will not change those conditions or otherwise have a significant effect on the environment.” (Id. at p. 1466.)
  • City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889;  The court stated that the purpose of the EIR under CEQA is to identify significant effects the project will have on the environment, not vice versa.  However, in this case, the school district did analyze risks of exposing staff and students to the existing air contamination because it was specifically required under CEQA section 21151.8.
  • South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604;  The court rejected petitioners’ argument that the lead agency should be required to mitigate for existing odors from an adjacent sewage plant to protect the project’s future residents, stating that CEQA’s legislative intent is to protect the environment, not a project from the environment.
  • Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455;  The court held that CEQA does not require the lead agency to identify environmental effects on the project and its users.  The court in this case also addressed CEQA Guidelines 15162.2(a), stating that it was only valid to the extent it would require analysis of “impacts on the environment caused by the development rather than impacts on the project caused by the environment.”  (Id. at p. 474, fn. 9.)

OPR Released Discussion Draft Technical Advisory: AB 52 and Tribal Cultural Resources in CEQA

Tuesday, June 23rd, 2015

On September 25, 2014, Governor Edmond G. Brown, Jr., signed Assembly Bill (AB) 52, which expands the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000, et seq.)[1] to include a new category of resources that must be evaluated – “tribal cultural resources.” To shed some light on AB 52’s implementation, the Governor’s Office of Planning and Research (OPR) released a Discussion Draft Technical Advisory: AB 52 and Tribal Cultural Resources in CEQA, on May 1, 2015, for 30 days of public comment. The document is intended to provide guidance to lead agencies regarding the substantive and procedural requirements that go into effect on July 1, 2015.

The law requires lead agencies to consider tribal cultural values in their environmental documents, in addition to the scientific and archaeological values that must be evaluated under preexisting provisions of CEQA, when determining impacts and mitigation.  The requirements of AB 52 apply to a project that has a notice of preparation of an environmental impact report (EIR) or a notice of negative declaration or mitigated negative declaration filed on or after July 1, 2015. (Pub. Resources Code, § 21084.3 (c).) Other key amendments to CEQA include:

  • Mandating early tribal consultation prior to and during CEQA review with a requirement to formally conclude consultation. (Pub. Resources Code, §§ 21080.3.1, subd. (b), 21080.3.2.)
  • Establishing tribal cultural resources, a new CEQA category of resources (Pub. Resources Code, § 21074), for which tribes may have expertise. (Pub. Resources Code, § 21080.3.1, subd. (a).)
  • Establishing that a significant impact on tribal cultural resources is a significant effect on the environment. (Pub. Resources Code, § 21084.2.)
  • Requiring OPR to revise the CEQA checklist, to make consideration of tribal impacts separate from consideration of impacts to other cultural resources. (Pub. Resources Code, § 21083.09.) The regulatory process for the adoption of its updates must occur on or before July 1, 2016.

One of the most significant implications of AB 52 is that the lead agency cannot commit to preparation of a negative declaration or a mitigated negative declaration until the newly required tribal cultural resource consultation has occurred since the consultation could result in the need for more detailed analysis appropriate to an EIR. (Pub. Resources Code, § 21080.3.1, subd. (b) [consultation process must be undertaken “prior to the release of a negative declaration, mitigated negative declaration, or environmental impact report for a project”]; see also Pub. Resources Code, § 21080.3.2 [“consultation may include discussion concerning the type of environmental review necessary”].) Because tribes may be considered experts on tribal cultural resources under AB 52, a tribe’s conclusion that a project has the potential to significantly impact a tribal resource may be considered a “fair argument” that the project may have significant environmental impacts. Accordingly, a tribe’s opinion during the consultation process may necessitate the preparation of an EIR.

[1] AB 52 amends Public Resources Code Section 5097.94, and adds Public Resources Code Sections 1073, 21074, 21080.3.1, 21080.3.2, 21082.3, 21083.09, 21084.2, and 21084.3.

Oil Spill Response Plan Does Not Require Endangered Species Act Consultation or Environmental Impact Statement

Tuesday, June 23rd, 2015

In Alaska Wilderness League v. Sally Jewell, 2015 U.S. App. LEXIS 9755, a coalition of environmental groups sued various administrative agencies following their approval of Shell Gulf of Mexico, Inc.’s (Shell’s) Oil Spill Response Plans (OSRPs) for their planned oil rigs in Alaska’s arctic coast.

OSRPs are mandated under a combination of both the Clean Water Act and Outer Continental Shelf Lands Act (OCSLA). OCSLA creates a four-step process for exploring and developing off-shore oil and natural gas resources. Notably, the third step requires applicants to submit an exploration plan for secretary approval along with an OSRP, which is required under the Clean Water Act.

The Clean Water Act provides the framework under which an OSRP must be prepared, including a requirement that the Bureau of Safety and Environmental Enforcement (BSEE) promulgate regulations requiring owners and operators of offshore facilities to submit an OSRP “for responding, to the maximum extent practicable, to a worst case discharge… of oil or a hazardous substance.” (33 U.S.C. § 1321, subd. (j)(5)(A)(i).) Under the Clean Water Act’s Compliance requirements, BSEE must then promptly review these plans, require amendments to any plan that does not meet the statutory requirements, and “shall” approve any plan that meets those requirements.

Here, the plaintiffs alleged that the BSEE unlawfully approved two of Shell’s OSRPs. Shell intervened and both sides filed for summary judgment. The district court granted summary judgment in favor of the defendants, and the plaintiffs appealed. On appeal, the plaintiffs argued: (1) BSEE’s OSRP approval was arbitrary and capricious under the Administrative Procedure Act (APA); (2) BSEE should have engaged in Endangered Species Act (ESA) consultation before approving the OSRPs; and (3) the OSRPs were subject to review under the National Environmental Protection Act (NEPA) before the agencies could approve them. The Ninth Circuit Court of Appeals (Court) disagreed, affirming the lower court’s decision in its entirety.

First, the plaintiffs argued BSEE’s OSRP approval was arbitrary and capricious under the Administrative Procedure act. They argued Shell assumed a 90 to 95 percent recovery rate in a worst case discharge event, and that recovery rate was unrealistic and unsupported. The court disagreed, finding that Shell claimed 10 percent of the oil would drive toward the mainland, not that all but 10 percent would be recovered. The court also found that Shell had the capacity to store up to 95 percent of the worst case scenario discharge volume, not that it would actually be able to collect that much.

Next, the plaintiffs argued BSEE should have engaged in ESA consultation before approving the OSRPs, since ESA section 7. The statute provides that BSEE “shall… approve any plan that meets the requirements” of the statute.  (32 U.S.C. § 1321 subd. (j)(5)(E).) Pursuant to this requirement, BSEE claimed it lacked discretion to consider factors apart from the delineated statutory criteria and, as a result, ESA consultation was unnecessary.  While the court concluded the statutory requirements applicable to OSRPs were ambiguous, the court deferred to BSEE’s reasonable interpretation.  Thus, the court rejected the plaintiff’s ESA consultation argument.  Lastly, the plaintiffs argued that BSEE violated NEPA because they failed to prepare an Environmental Impact Study (EIS) before approving the OSRPs. NEPA is subject to a “rule of reason” that frees agencies from preparing an EIS on actions they cannot refuse to perform. When an agency cannot prevent a certain effect due to its limited statutory authority over the action, the agency does not need to consider the environmental effects arising from that action. Here, since the court held BSEE had no discretion in approving or disapproving the OSRPs, the OSRPs did not require an EIS.

Justice D.W. Nelson dissented . Justice Nelson acknowledged that “[t]here is no point in consulting if the agency has no choices.” (Ctr. For Food Safety v. Vilsak (2013) 718 F.3d 829, 841.) However, Justice Nelson interpreted BSEE’s regulations and implementing statutes as providing BSEE with choices that allowed it to influence a private activity to benefit an endangered species.  Therefore, Justice Nelson concluded BSEE’s action to approve an OSRP was discretionary and triggered ESA consultation.

Justice Nelson also concluded BSEE was required to prepare an EIS under NEPA. She argued BSEE had the necessary authority to trigger NEPA review because the Oil Pollution Act grants them significant authority to regulate offshore facilities and directs BSEE to consider environmental factors in its decision making process.

Key Point

The approval of Oil Spill Response Plans by the Bureau of Safety and Environmental Enforcement is a nondiscretionary action that does not trigger Endangered Species Act consultation or necessitate an Environmental Impact Statement under NEPA.

Court of Appeal Denies Attorney’s Fees Motion in CEQA Litigation after Contract Dispute Resulted in Revocation of Project Approvals

Tuesday, June 23rd, 2015

In Coalition for a Sustainable Yucaipa v. City of Yucaipa (2015) Cal.App.Unpub. LEXIS 4016, the Coalition for a Sustainable Yucaipa (Coalition) challenged the City of Yucaipa’s (Yucaipa’s) approval of the Oak Hills Marketplace (Project). The Project was to be built on land owned by the Palmer General Corporation (Palmer) and developed by the Target Corporation (Target).

Coalition’s initial petition for writ of mandate was denied, and Coalition appealed. But, pending appeal, the Project was dropped following a contract dispute between Palmer and Target. The City then revoked the Project’s land use entitlements, and the court of appeal reversed the order denying mandate, but with direction to dismiss the action with prejudice, since it was now moot.

Coalition moved for attorney’s fees, claiming under the “catalyst theory,” they were entitled to attorney’s fees, since the defendants substantially changed their behavior because of the litigation. The court denied their motion, and Coalition appealed again, alleging the trial court abused its discretion in denying attorney’s fees.

The court of appeal affirmed, holding Coalition was not a “prevailing party” to recover under the “catalyst theory” because Coalition did not show that they caused the City to revoke the land use entitlements. Coalition was not required to show that they were the only cause of the revocation, but that they were a substantial factor in the decision. The court reasoned that Coalition did not catalyze the entitlement revocation because: (1) Coalition did not prevail, but had appealed a denial of their petition for writ of mandate; (2) Yucaipa did not revoke the entitlements for any reason related to the Environmental Impact Report or CEQA violations Coalition had alleged; and (3) Coalition had not shown any “threat of victory” in the lower court.

A Project under CEQA is the Whole of the Action Proposed

Monday, June 15th, 2015

In Mountains Recreation & Conservation Authority v. City of Whittier 2015 Cal. App. Unpub. LEXIS 3859, the Second District Court of Appeal reiterated that a “project” under the California Environmental Quality Act (CEQA) is not each individual governmental approval, but rather the whole of an action.

The facts leading up to the case began when the City of Whittier (City) purchased over 1,000 acres of undeveloped land, including land formerly owned by Chevron U.S.A. Inc. (Chevron) and covered in part by a conservation easement, using a grant from the Los Angeles County Regional Park and Open Space District (District). Upon purchase of the land, the City and the District entered into a Project Agreement (Agreement) requiring the City to seek the District’s approval of any proposed leases on the land. Thereafter, after certifying an EIR, the City entered into a lease with Matrix Oil Corporation for the drilling and production of oil on seven acres of the protected land (Project), yet the City did not first obtain approval from the District.

Mountains Recreation & Conservation Authority sued the District and the City, but its suit was settled and its claims were dismissed.  The District filed a cross-complaint against the City, alleging among other causes of action, that the City failed to comply with CEQA when it entered an Amendment and Partial Release of Declaration and Easement of Restricted Use with Chevron to make clear that the existing conservation easement did not prohibit the Project (Chevron Release).

With respect to the District’s CEQA claim, the District argued that the City was required to conduct environmental review of its decision to approve the “Chevron Release.”  The court explained that while approval of the “Chevron Release,” viewed in isolation, could potentially result in environmental impacts, the Release was not a distinct project on its own but rather one part of the oil drilling project as a whole that previously underwent CEQA review.  A “project” under CEQA means “the whole of the action,” not “each separate governmental approval.”  Thus, since the “Chevron Release” was one governmental approval in the midst of a larger project, the City was not required to conduct an environmental review of its approval. Furthermore, the court found that any possible environmental impacts of the “Chevron Release” were fully considered in the oil drilling project’s EIR.

Court Agrees with City of San Diego’s Interpretation of its Municipal Code

Monday, June 15th, 2015

In Save Our Heritage Organisation v. City of San Diego 2015 Cal. App. LEXIS 462, Plaintiffs challenged the City of San Diego’s (City) approval of a revitalization project that would result in significant impacts to a bridge that has been designated as a National Historic Landmark. The Fourth District Court of Appeal denied all of plaintiff’s arguments and upheld the City’s approval of the project.

The Court of Appeal defined the “pivotal issue” of this case as the proper interpretation of Municipal Code section 126.0504, subdivision (i)(3). Section 126.0504 provides that when the City plans to develop on a site that may result in significant impacts on resources, it must obtain a Site Development Permit. Subdivision (i)(3) of that section requires the City to find that there is no reasonable beneficial use of the property without the project.  Plaintiff challenged the City’s findings made under section 126.0504, subdivision (i)(3), arguing the City failed to provide substantial evidence supporting its decision.

Courts apply rules relating to statutory interpretation in evaluating a municipality’s interpretation of its Code.  Thus, the Court of Appeal afforded deference to the City’s interpretation and found substantial evidence supported the City’s determination that the property had no reasonable beneficial use without the project. In reaching its decision, the court examined whether substantial evidence supported the City’s determination that the property’s uses in its unmodified state were unreasonable under the circumstances. The court did not ask whether a project opponent could present evidence that the property could be put to some beneficial use without the project – that, the court explained, “would set a nearly insurmountable bar.” (Id. at p. 22.)

Plaintiff alternatively argued the City presented no substantial evidence to support the finding under section 126.0504, subdivision (i)(3) that denial of the Project would make it infeasible to derive a reasonable economic return from the property. The court rejected this argument because plaintiff failed to properly preserve the issue during administrative proceedings.

Plaintiff next challenged the City’s actions under section 126.0504, subdivision (a), which requires a finding that the project would not adversely affect the City’s applicable land use plans. After reviewing the record de novo, the court found substantial evidence to support the City’s conclusion that, in spite of some inconsistencies created by impacts to the original bridge, the Project as a whole furthers the majority of the goals and policies in all of the applicable land use plans.

On cross-appeal, plaintiff alleged that by proposing to construct a pay-parking structure, the City had violated the California Statutes of 1870, which set aside certain lands to remain a “free and public park.” The court disagreed; explaining that the 1870 limitations placed on the City’s powers with regard to managing city parks was annulled when the state Legislature approved the City’s charter.

Key Point:

Courts will provide deferential treatment to a City’s interpretation of its own ordinances. In addition, the limits placed on public lands by the California 1870 Statutes are annulled when a later act of the state Legislature grants the City powers to regulate and control its own public lands.

Northern District of California Vacates Incidental Take Permits, Biological Opinion, and Environmental Impact Statement, but Refuses to Grant Injunctive Relief

Monday, June 15th, 2015

In Klamath-Siskiyou Wildlands Ctr. v. Nat’l Oceanic & Atmospheric Admin., 2015 U.S. Dist. LEXIS 70622, the Northern District of California vacated two Incidental Take Permits (ITPs), an Environmental Impact Statement (EIS), and a biological opinion, but refused to enjoin the defendants from pursuing their project. The matter involved two ITPs that the Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) granted to Fruit Growers.

Plaintiffs challenged a 50-year ITP to take northern spotted owls, granted by FWS, and a 50-year ITP to take to take coho salmon, granted by NMFS. In preparing the ITPs, the agencies and Fruit Growers prepared an EIS, and both agencies prepared biological opinions. Both biological opinions concluded that neither species was jeopardized nor was their habitat adversely affected by the grant of the permits.

The court vacated the agencies’ decisions to grant the ITPs because the court held: (1) FWS violated ESA by factoring the conservation efforts of non-permit applicant U.S. Forest Service into its § 10 analysis of Fruit Growers’ mitigation efforts; (2) NMFS arbitrarily and capriciously issued an ITP to Fruit Growers to take coho salmon; and (3) the agencies failed to conduct a cumulative impact analysis on Fruit Growers’ timber harvest projects, use of herbicides, and water withdrawal projects.

While the court acknowledged that the EIS included conservation measures that may benefit the species, the court rejected the agencies’ argument that these benefits outweighed the deficiencies in the in the agencies’ ITPs, EIS, and biological opinion.  The court also rejected the argument that the potential level of harm Fruit Growers and the surrounding community faced did not rise to the level of concrete harm necessary to prevent vacatur.

Nevertheless, the court rejected plaintiffs request for injunction relief.  Injunctive relief is an “extraordinary remedy” that is often avoided if a less drastic remedy can redress the situation. Monsanto Co. v. Geertson Seed Farms (2010) 561 U.S. 139, 165-166. But, when injury to the environment is sufficiently likely, the balance of harms favors the injunction to protect the environment. Amoco Prod. Co. v. Will. of Gambell (1987) 480 U.S. 531, 545. Even with this lower bar for environmental protection injunctions, the court still refused the injunction because the court held plaintiffs had not sufficiently shown that the northern spotted owl’s continued existence was jeopardized if logging continued.

Addendum to Environmental Impact Report Sufficient to Outline Changes in Project’s Proposed Water Sources

Friday, June 12th, 2015

Pala Band of Mission Indians v. County of San Diego Department of Environmental Health (2015) Cal.App. Unpub. LEXIS 3815, California’s Fourth Appellate District affirmed the trial court’s judgment upholding the adequacy of an Addendum to an Environmental Impact Report (EIR) and granted defendants their costs on appeal.

The conflict in Pala Band began in 1994 when San Diego County voters passed Proposition C, approving the Gregory Canyon Landfill (GCL). San Diego County Department of Environmental Health (DEH) certified the Project’s Final Environmental Impact Report (FEIR), and later, a 2005 decision held that the FEIR approved by the DEH failed to consider water sources for the construction and operation of the Project, as well as the impact of obtaining water from off-site sources. The 2005 court set aside both the 2003 FIER certification and the Solid Waste Facility Permit (SWFP). In 2007, the DEH certified a Revised Final EIR (RFEIR).  After certification of the RFIER, GCL contracted with the San Gabriel Valley Water Company (SGVWC) to supply recycled water for the Project, and DEH prepared an addendum to the RFIER (2009 Addendum). The 2009 Addendum addressed primary on-site water sources from the riparian underflow of the San Luis Ray River and percolating groundwater from on-site watersheds, and SGVWC water as an alternative source.

Plaintiffs sued, arguing the 2009 Addendum was inadequate. After the lawsuit was filed, DEH approved a new SWFP for GCL, and sent the certification and SWFP to the California Department of Resources Recycling and Recovery (CalRecycle) for concurrence. When CalRecycle concurred, plaintiffs filed a second action claiming significant changes to the Project required a Supplemental Environmental Impact Report (SEIR). The trial court ruled for defendants and plaintiffs appealed.

Once the EIR is created, the necessary study is presumed done, and the burden shifts to the opposing party to argue why an SEIR is necessary. Plaintiffs contended any changes to the water sources of a project require the preparation of an SEIR. The court disagreed, stating that the plaintiffs’ interpretation was at odds with CEQA Guidelines § 15160 – that SEIR preparation is inappropriate unless the lead agency determines that “substantive changes” require “major revisions” to the prior EIR.  Because the plaintiffs failed to meet their burden of proof, the court rejected their argument that an SEIR was required.

The court next considered the sufficiency of the 2009 Addendum.  First, the court held that the 2009 Addendum correctly concluded that GCL had the right to use riparian water and percolating groundwater from existing wells for ancillary uses, landscape irrigation, and fire protection.  Second, the court found that substantial evidence showed that on-site wells were reliable sources of water as stated in the 2009 Addendum.  Third, contrary to plaintiffs’ argument, the court determined that SGVWC’s CPUC-approved tariff schedule authorized the sale of recycled water to GCL.  Fourth, the court rejected plaintiffs’ argument that the 2009 Addendum was inadequate for failing to analyze the environmental impacts of using third-party clay to build the landfill liner.  The court explained that the environmental effects of a project need not be exhaustive and its sufficiency must be reviewed in the light of what is reasonably feasible.  Finally, while the County Fire Department submitted comments on the 2009 Addendum expressing concern that the Project would have a potentially significant impact on their ability to deliver emergency fire suppression, the court held that the 2003 FEIR had an extensive discussion of fire safety impacts and, thus, the comments did not render the 2009 Addendum inadequate.