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CEQA Updates

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

Posts from November, 2015


Monday, November 30th, 2015

In Citizens for Environmental Responsibility v. State ex rel., the Third Appellate District affirmed the denial of a CEQA petition relating to the 14th District Agricultural Association’s and its Board of Directors’ (collectively District) use of the Class 23 categorical exemption in approving a small-scale two-day rodeo at an existing Fairground. The case was originally decided by the Third Appellate District in March 2014 and a petition for review to the Supreme Court was filed in June 2014. The Supreme Court granted petition for review in July 2014; however further action by the court in this matter was deferred pending consideration and disposition of a related issue in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (Berkeley Hillside). In August 2015, review of the matter was transferred back to the Third District Court of Appeal for reconsideration in light of the decision in Berkeley Hillside.

Appellants Citizen for Environmental Responsibility, et al. argued that the exemption employed by the District was inapplicable because: (1) the rodeo project expressly included mitigation measures in the form of a Manure Management Plan, in effect acknowledging potential environmental effects; and (2) the unusual circumstances exception to categorical exemptions applies because of alleged stormwater runoff impacts.

The notice of exemption (NOE) stated that the rodeo was categorically exempt under the Class 23 exemption for “normal operations of existing facilities for public gatherings for which the facilities were designed, where there is a past history of the facility being used for the same or similar kind of purpose.” The NOE identified the Fairground as an existing facility designed for public gatherings, primarily the county fair, as well as other public events throughout the year, including equestrian and livestock events. In addition, the NOE laid out the historical operations of the fair, which have occurred annually for over a century. The NOE also recognized that the existing equestrian facilities have been in existence for at least fifty years, and equestrian and livestock activities have always been accommodated at the fair ground. The NOE concluded that there were no exceptions to the categorical exemption due to the fact that no facilities would be altered, and the project would not result in impacts on a resource of critical concern with implementation of the District’s ongoing Manure Management Plan.

With regards to the Manure Management Plan (Plan), the court applied Wollmer v. City of Berkeley (2011) 193 Cal.App.4th 1329, and recognized that the Plan was not a new measure proposed for or necessitated by the rodeo project. Rather, the Plan was a preexisting measure previously implemented to address a preexisting concern, which was formalized in writing before the rodeo project was proposed. Accordingly, the Manure Management Plan was considered part of the ongoing “normal operations” of the Fairground and use of the Plan would not disqualify the rodeo project from utilizing the Class 23 exemption. Further, the court recognized that the Plan was not proposed as a mitigation measure for this particular rodeo. Rather, the Plan was in place for decades to address ongoing manure management concerns at the Fairgrounds.

Turning to appellant’s argument that the unusual circumstances exception to categorical exemptions applies, the court applied the Supreme Court’s recent decision, Berkeley Hillside, supra, 60 Cal.4th at p. 1086, which outlines additional clarification regarding two alternative ways to establish unusual circumstances: (1) a challenger may prove an unusual circumstance distinguishes the project from others in the exempt class; or (2) a challenger may establish that the project will have a significant effect on the environment, thus presenting unusual circumstances.

The court indicated that with regards to the first alternative, the rodeo project had no unusual circumstances to distinguish it from others in the exempt class (e.g., other “normal operations” of the Fairground). The normal operations of the Fairground included at least two dozen equestrian and/or livestock events each year for at least the last three years leading up to the rodeo. The proposed rodeo did not involve more horses or livestock than were used for other events, and no changes to the facility or the operations were necessary. Moreover, the rodeo was consistent with the existing zoning and presented no unusual circumstances compared to the activities in the surrounding area. The court found that the appellants had not produced substantial evidence supporting a finding of unusual circumstances based on features related to the rodeo project, and concluded that the agency’s determination of the absence of unusual circumstances was supported by substantial evidence.

Applying the second alternative, the court recognized that the appellants made no attempt before the District’s Board or in the trial court to prove the project will actually have a significant effect on the environment. The appellants effectively argued that the rodeo project creates an environmental risk to a neighboring creek because they believed there was a reasonable possibility that the project may have a significant environmental effect on the creek. Appellants were not able to supply evidence regarding the Fairground’s operations or the neighboring creek to establish a significant effect would occur. In fact, Fairground sampling by the District demonstrated that water leaves the Fairground in a cleaner state than when it enters. The court concluded that the appellants failed to establish unusual circumstances based on substantial evidence that the project will have a significant effect on the neighboring creek.

Key Points:

Site management activities will not be considered “mitigation” where they have been place prior to a proposed action to address an ongoing concern.  This case also provides a helpful example of how to apply the Berkley Hillside analysis in determining whether the unusual circumstance exception applies to a categorical exemption.


Friday, November 20th, 2015

In San Francisco Baykeeper Inc. v. California State Lands Commission, 2015 Cal. App. LEXIS 1024, the First Appellate District rejected several CEQA challenges to the California State Lands Commission (SLC)’s approval of 10-year sand mining leases, but reversed the trial court on this issue of whether SLC failed to properly consider the public trust doctrine in approving the leases.

In October 2014, the SLC certified the Final EIR and approved the San Francisco Bay and Delta Sand Mining Project, which authorized mining from submerged lands under the San Francisco Bay. San Francisco Baykeeper, Inc. (Baykeeper) challenged the EIR, alleging (1) the baseline was not supported by the record; (2) the SLC failed to analyze properly project impacts on soil erosion and to recirculate; (3) the SLC selected an improper threshold for determining the impact on mineral resources; and (4) that the SLC failed to notify and consult with other responsible agencies.

First, the court held that the SLC’s use of a five-year average of annual mining volumes to establish the baseline condition was proper because it more accurately reflected true baseline conditions and was supported by substantial evidence. Baykeeper argued that this baseline was artificially inflated and did not reflect the conditions as they existed when the agency began its environmental analysis in 2007. The SLC countered that the five-year average was a better indicator of existing mining conditions than the 2007 rate in light of the financial crisis and an unusual drop in mining volume that year. The court agreed, noting that neither CEQA nor the CEQA Guidelines mandate a uniform, inflexible rule for determining the existing conditions baseline.

Second, the court rejected Baykeeper’s assertion that the Final EIR did not adequately analyze the cumulative environmental impacts of commercial sand mining on coastal beach erosion and sedimentation. The court held that the Final EIR’s determination that the mining activity in question would not have a significant impact on coastal erosion was based on substantial evidence. Specifically, the court pointed to additional studies conducted in response to comments on the Draft EIR. Baykeeper argued that these additional studies constituted significant new information, and therefore the SLC was required to recirculate the Final EIR. The court again disagreed, finding that the SLC’s decision not to recirculate was supported by substantial evidence because the new information did not alter any of the substantive conclusions from the Draft EIR. While the parties disagreed about how the studies should be interpreted, the court discounted this as a “battle of the experts.”

Third, the court upheld the Final EIR’s “mineral resources” impact analysis. Baykeeper contended that the SLC improperly deviated from the CEQA Guidelines Appendix G thresholds for measuring impacts on mineral resources, reasoning that Appendix G mandated that the Final EIR evaluate the impact resulting from the allegedly permanent depletion of sand minerals. The court disagreed, stating that the thresholds of significance in Appendix G are only a “suggestion,” and agencies have discretion to develop project-specific thresholds. The court found that SLC’s threshold, which required analysis of impacts on access to mineral resources but not the depletion of those resources, was consistent with existing state policy regarding mineral extraction.

Fourth, the court held that SLC violated CEQA by failing to consult with other trustee agencies, such as the Coastal Commission and the City of San Francisco. However, the court held this violation was not prejudicial because it did not result in the omission of pertinent information from the environmental review process.

In addition to the CEQA challenges, Baykeeper alleged that SLC failed to fulfill its public trust duty because it did not make any findings that approval of the leases was consistent with existing public trust uses. Here, the court agreed, rejecting SLC’s arguments that private sand mining is a categorical per se public trust use, that mining leases do not deplete a trust resource, or that CEQA compliance displaced any independent duty to perform a public trust analysis. Because the SLC failed to fulfill its affirmative duty to “take the public trust into account . . . and to protect public trust uses whenever feasible,” the court reversed and directed the trial court to grant the writ of mandate on this issue.

Key Point:

Agencies have discretion when establishing a baseline, especially in situations where environmental conditions vary from year to year. When developing thresholds of significance, CEQA does not require agencies to use the suggested thresholds in Appendix G. For projects that might adversely affect traditional public trust uses, the agencies administering the land have an affirmative duty to consider the public trust as part of the CEQA review process


Monday, November 16th, 2015

In an unpublished opinion, City of Jurupa Valley v. City of Riverside, 2015 Cal. App. Unpub. LEXIS 7978 the Second Appellate District affirmed the trial court’s decision to deny the City of Jarupa Valley’s mandamus petition.  The project involved the creation of a transmission line, two substations, and several subtransmission lines to deliver power throughout Riverside.  Riverside had prepared and adopted an Environmental Impact Report (EIR) for the project. On appeal, the issues were whether Riverside violated CEQA by (1) failing to recirculate the Final EIR despite adding new information, (2) not fairly and in good faith analyzing Project alternatives, and (3) pre-committing to the Project.

First, the Court considered Riverside’s decision not to recirculating the Final EIR for public comment after minor alterations to transmission line routes. The Court held that substantial evidence supported Riverside’s decision not the recirculate, as the changes did not result in new or substantially increased environmental impacts. Rather, these changes resulted in reduced environmental impacts because they involved moving the transmission lines behind a store rather than cutting through the parking lot to avoid aesthetic and roadway impacts and burying the lines underground near the airport to avoid air traffic safety impacts.

Second, the Court upheld Riverside’s decision to reject underground transmission lines and an alternative routing option as infeasible because the decision was based on substantial evidence. The Court held that neither option had to be extensively analyzed as a project alternative because both options failed to satisfy the project objectives at the outset. Specifically, the high cost of underground transmission lines would not meet the project’s “cost effective” goal and the proposed alternative route would have greater environmental impacts than the chosen route and therefore failed the project’s objective of “minimizing environmental impacts.”

Third, the Court found Riverside did not impermissibly “pre-commit” to the project by including obtaining CAISO approval, pre-selecting a preferred route, committing funds to the project, and signing an Interconnection Facilities Agreement  with Southern California Edison.  The Court held that none of these steps obligated Riverside to approve the project, nor did they effectively precluded any alternatives or mitigation measures that CEQA would otherwise require to be considered. The Court also noted that modifications to the project in response to public comment showed that Riverside did not pre-commit.


Thursday, November 12th, 2015

In an unpublished opinon, Friends of Highland Park v. City of L.A., 2015 Cal. App. Unpub. LEXIS 8002, the Second Appellate District reversed the trial court, holding that the initial study prepared by the City of Los Angeles for an affordable housing project in Highland Park was inadequate because the study lacked quantified greenhouse gas emission data and failed to report or analyze known soil contamination from a hazardous material.  Based on the initial study, the City had determined that the project would not have a significant effect on the environment and had approved the projected after adopting a mitigated negative declaration (MND).

As a preliminary matter, the Court held that Friends of Highland Park’s CEQA claims were not time-barred by the Subdivision Map Act (SMA), Government Code Section 66499.37, which requires challenges to subdivision map approvals to be filed within 90-days. The Court held the CEQA challenges at issue here do not fall within the SMA filing requirements because the adequacy of an initial study could not have been challenged under the SMA.

Turning to greenhouse gas emissions, the Court found the City’s initial study inadequate because it contained no evidence to support its claim that the potentially significant greenhouse gas emission impacts could be mitigated below a level of significance by using “low and non-VOC containing paints, sealants, adhesives, and solvents” during construction of the project. The Court relied in part on section 15064.4 of the CEQA Guidelines, which requires the use of “a model or methodology to quantify greenhouse gas emissions.” The Court held that the City had not selected a threshold for determining the significance of greenhouse gas emissions and thus there was “no vehicle for judicial review.”

The Court also found the initial study inadequate because it failed to address known lead contamination on the project site. An earlier development agreement acknowledged the existence of lead, but the initial study made no specific mention of lead contamination. However, adoption of the MND was subject to future environmental analyses, which were to be done prior to grading. The Court held that because the lead contamination was known at the time of approval, it should have been analyzed in the initial study.

The Court directed the City to set aside the MND and prepare a new initial study that complies with CEQA.


Tuesday, November 10th, 2015

In Crenshaw Subway Coalition v. Los Angeles County Metropolitan Transportation Authority, 2015 U.S. Dist. LEXIS 143642, the United States District Court for the Central District of California granted summary judgment on all but one claim in favor of the Los Angeles Metropolitan Transportation Authority (“Metro”) and the Federal Traffic Administration (“FTA”) against Crenshaw Subway Coalition’s (“Plaintiff”) challenges to the approval of the Crenshaw/LAX Transit Corridor Project.

The Draft EIS/EIR for the Project analyzed four alternatives—no-build, Transportation System Management (TSM), Bus Rapid Transit (BRT), and Light Rail Transit (LRT). The agencies chose LRT as the locally preferred alternative and prepared an EIS/EIR to analyze potentially significant environmental impacts of the Project.

Specifically at issue in the case was the grade separation analysis for a section of track along Crenshaw Boulevard—where the LRT would shift from running below-grade to running at-grade for approximately six blocks until transitioning to an aerial structure. Plaintiff argued that the EIS/EIR violated CEQA and NEPA by failing to evaluate a reasonable alternative to the at-grade segment of the Project, namely a tunnel.

Initially, the Court suggested that CEQA did not require an analysis of any segment specific options (such a below-grade tunnel for the Crenshaw Boulevard section) because these options are just a component of the Project and did not rise to the level of an “alternative.” Therefore, under the Court’s view, Metro had no duty to analyze “alternatives” to the at-grade design feature. Nonetheless, the Court analyzed the issue as if the below-grade option were a CEQA alternative—in part because the issue was briefed as such by both parties.

The Court first held that the EIS/EIR’s alternatives analysis did not violate CEQA because Metro had determined in the scoping process that running the entire length of Crenshaw Boulevard below-grade was economically infeasible as it would increase the cost of the Project by 27 to 35 percent. Infeasible alternatives do not need to be analyzed in an EIR, and courts can look at the administrative record for evidence of infeasibility; specific “infeasibility findings” are not required.

The Court then held that the alternatives analysis did not violate NEPA because the below-grade alternative was not reasonable or necessary. Specifically, an economically infeasible alternative would not meet the Project’s stated goal of cost effective and affordable transit improvements and a study by Metro had determined that at-grade crossings were compatible with the level of traffic on the Boulevard. Accordingly, the Court held that it was not improper for the FTA to only briefly address the below-grade segment in a response to comment. The Court also rejected an argument that FTA had “predetermined” that the segment would be at-grade, holding that a preferred alternative does not equate to an improperly predetermined outcome under NEPA.

The Court next addressed Plaintiffs’ substantive challenges to the EIS/EIR’s land use, urban decay, parking, safety impacts, and environmental justice analyses. Because these were substantive and not procedural challenges, the Court gave more deference to the agencies’ conclusions and determined that they were supported by substantial evidence. The Court also rejected Plaintiff’s claims that the mitigation measures were not described with sufficient detail and that a supplemental EIS should have been prepared under NEPA.

Notably, the Court did not grant summary judgement to either party for Petitioner’s claim that Metro engaged in unlawful racial discriminated in its site selection for the Project in violation of Government Code section 11135, though the Court seemed to imply that Metro seemed “quite likely to succeed” in the litigation. The Court held that there was simply not enough evidence on the administrative record to properly analyze the issue, and thus summary judgment was inappropriate.

Key Point:

Alternatives analysis is a key component of any environmental impact report. However, whether an alternative can be rejected during the scoping process (and thus does not need to be analyzed in an EIR or EIS) depends on whether it is feasible (CEQA) or reasonable (NEPA). This case may provide support for an argument that alternative “design features” within the project do not even rise to the level of a project alternative.


Monday, November 9th, 2015

In Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority, 2015 Cal. App. LEXIS 930, the Second Appellate District affirmed the trial court’s decision and rejected challenges to the environmental impact report/environmental impact statement (EIR/EIS) for the Westside Subway Extension Project.

The Constellation station alignment recommended for the subway extension required controversial tunneling under Beverly Hills High School. Beverly Hills Unified School District and the City of Beverly Hills (“Petitioners”) challenged Los Angeles County Metropolitan Transportation Authority’s (“Metro”) decision not to recirculate the Draft EIR/EIS, claiming that significant new information was added after the public comment period had closed. Petitioners also challenged the adequacy of the EIR/EIS’s air quality impacts analysis and claimed that the Metro’s conduct in holding a transit hearing was unlawful.

The Court first discussed Metro’s decision not to recirculate, noting that an agency’s decision not to recirculate an EIR is given substantial deference and presumed to be correct and that the challenging parties bear the burden of proof in showing that the agency’s decision was not supported by substantial evidence.

Here, Petitioners challenged the addition of fault investigation and tunnel safety reports to the Final EIR/EIS. These reports found that the proposed Santa Monica station in Century City was within active fault zones and therefore unsuitable and that there would be no significant impacts from tunneling under the high school and residences. As a result, the other proposed station for Century City analyzed in the Draft EIR/EIS—the Constellation station—became Metro’s preferred alternative. The Court found that the new reports merely confirmed suppositions raised in the Draft EIR/EIS and that the Draft EIR/EIS had made clear that both stations were being considered. Therefore, the Court upheld Metro’s decision not to recirculate because the Draft EIR/EIS provided a meaningful opportunity for public comment on the environmental effects of both the Santa Monica and Constellation stations.

Petitioners also argued that the EIR/EIS should have been recirculated because of changes in the air quality impact analysis between the Draft EIR/EIS and Final EIR/EIS. Because the Draft EIR/EIS and the Final EIR/EIS reached the same conclusion, the Court upheld Metro’s decision not to recirculate.

The Court also rejected a challenge to the adequacy of the EIR/EIS’s air quality impact analysis. The Court specifically rejected Petitioners’ claim that an EIR must analyze localized rather than regional air quality impacts and that an EIR must include an analysis showing how the actual construction emissions will specifically impact public health.

Petitioner City of Beverly Hills challenged Metro’s conduct during a transit hearing as unlawful. If requested, the Public Utilities Code requires Metro to hold a “transit hearing” to evaluate the reasonableness of locating transit facilities. The City requested and was granted such a hearing, but claimed that the hearing was unlawful because Metro’s Board was prejudiced, relied on hearsay evidence, and did not allow cross-examination of witnesses. The Court rejected this challenge, finding that the City got the transit hearing it had requested—an opportunity to present its own evidence.

Key Point:

Lead agencies are given substantial deference in their decision not to recirculate an EIR for public comment, and the courts will uphold the agency’s decision as long as significant new information did not deprive the public of a meaningful opportunity to comment on the project’s substantial environmental effects.


Wednesday, November 4th, 2015

On October 29, 2015, in Save the American River Association v. City of Folsom, 2015 Cal. App. Unpub. LEXIS 7827, the Third District Court of Appeals affirmed the City of Folsom’s use of a mitigated negative declaration for a project to develop dedicated ADA paths to the waterfront of Lake Natoma; create scenic overlooks; provide landing access for kayaks; remove invasive species; and re-establish native plants.  In an unpublished opinion, the court held that petitioner Save the American River Association (“SARA”) was unable to point to substantial evidence that gave rise to a fair argument that the project was inconsistent with the Folsom Lake State Recreation Area & Folsom Powerhouse State Historic Park General Plan/Resource Management Plan (“General Plan”) and the American River Parkway Plan (“Parkway Plan”).  The decision upholds the trial court’s order dismissing SARA’s petition for a writ of mandate.

The parties and the court agreed that the two plans were adopted, at least in part, for the purpose of avoiding or mitigating an environmental effect—the development and use of the Lake Natoma Area of the American River Parkway. The General Plan classified the project area with a land use designation of low intensity recreation/conservation.   SARA argued that the project’s construction of paved trails, a paved stairway, and non-motorized boating facilities conflicted with this land use designation by changing the area from mostly natural to more developed.

While the court did not disagree that paved trails are “more developed” than unpaved trails, it rejected SARA’s argument due to the lack of citations to substantial evidence in the administrative record. The court disregarded petitioner’s evidence that the City intended to increase use of the area in order to realize an economic benefit in the nearby Folsom Historic District because the City’s supposed intent was not substantial evidence but mere speculation.  Petitioner’s argument that the project conflicted with the Parkway Plan was rejected for the same reason.

Key Point:

Although the fair argument standard is a “low threshold” test for requiring the preparation of an EIR, petitioner groups challenging a negative declaration on the basis of plan consistency must still cite to substantial evidence in the record that supports a fair argument that the proposed project conflicts with an applicable plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental effect.


Monday, November 2nd, 2015

In an unpublished decision, Save Desert Rose v. City of Encinitas, 2015 Cal. App. Unpub. LEXIS 7685, the Fourth Appellate District reversed the judgment of the trial court and held Save Desert Rose (Petitioner) failed to demonstrate that substantial evidence supported a fair argument that a proposed 16 single-family home subdivision project (Project) may have a significant effect on the environment.  As a result, the Court found the Encinitas City Council’s reliance on a mitigated negative declaration (MND), rather than an environmental impact report (EIR), to approve the Project complied with the California Environmental Quality Act (CEQA).

In reaching this decision, the Court conducted an independent review of the record to determine if substantial evidence supported a fair argument with respect to any of the nine claims raised by Petitioners. In doing so, the court clarified that the fair argument standard is a question of law and therefore did not defer to either the lead agency’s or trail court’s determination on the issue. However, the Court noted that the Petitioner bore the burden of proof in demonstrating that a fair argument of a potentially significant impact could be made from substantial evidence on the record.

In conducting its independent review, the court undertook a comprehensive analysis of Petitioner’s nine challenges including alleged potentially significant impacts to raptors, wetland habitat, aesthetics and views, community character, stormwater management, erosion during construction, traffic, vehicular safety hazards, and parking. With respect to each, the Court concluded no substantial evidence in the administrative record supported a fair argument the Project may have a significant effect on the environment within the meaning of CEQA.

Notably, the court determined that a traffic study cited by the challengers did not support a fair argument because it was found to be flawed by the City’s traffic engineering division and other independent experts in the field. Further, the court found no fair argument that impacts on biological resources (including riparian habitat and the possible existence of raptors) within the proposed development site could not be mitigated below significance, relying in part on statements from the California Department of Fish and Wildlife and the U.S. Fish and Wildlife Service in support of the proposed mitigation measures.

Additionally, the court found no fair argument in support of impacts to water quality and drainage because additional permits and conditions for approval were required before the applicant could proceed. Specifically, before issuing a grading permit the City requires compliance with stormwater quality regulations as set forth in its Stormwater Manual and Best Management Practices Manual, as well as preparation of a Stormwater Pollution Prevention Plan as required by the State Water Resources Control Board. Therefore, the court held that no fair argument existed even though precise mitigation details would not be available until the applicant applied for a grading permit.