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CEQA Updates

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

Posts from December, 2015


SUPREME COURT HOLDS THERE IS NO GENERAL REQUIREMENT TO CONSIDER THE EFFECT OF THE ENVIRONMENT ON A PROJECT

Friday, December 18th, 2015

On December 17, 2015, the Supreme Court filed a unanimous opinion in California Building Industry Association v. Bay Area Air Quality Management District (S213478). Interestingly, this is the first CEQA opinion to be drafted by the recently appointed Justice Cuéllar. This case pertains to the adoption of thresholds of significance for greenhouse gas emissions and toxic air contaminants by the Bay Area Air Quality Management District (BAAQMD). Some of these thresholds required lead agencies to analyze how toxic air contaminants would affect the residents and workers who would be brought to the area as a result of the proposed project.

Initially, the litigation concerned whether BAAQMD’s adoption of these thresholds was a “project” subject to CEQA review. The trial court found that it was and issued a writ of mandate invalidating the thresholds for failure to comply with CEQA. The First District Court of Appeal reversed, finding that the 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 prior CEQA review is not part of that process.  Second, the thresholds were not a “project” because the “environmental change” alleged by California Building Industry Association (CBIA) was speculative and not reasonably foreseeable. The Supreme Court did not grant review over this issue and thus the Court of Appeal’s holding that the act of adopting thresholds is not a project under CEQA stands.

The Supreme Court granted review only on the narrow issue of whether CEQA requires an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project. At the appellate court, BIA had raised a facial challenge against BAAQMD’s air pollution thresholds, arguing they were contrary to a line of cases holding that CEQA does not require lead agencies to evaluate impacts of the environment on the proposed project — the so-called ‘CEQA in reverse’ issue. The First District dodged the larger issue and held that the receptor thresholds have valid applications irrespective of whether CEQA requires an analysis of how existing environmental conditions impact a project’s future residents or users, and therefore were not facially invalid. The Supreme Court chose not to review this holding.

The Supreme Court’s opinion centers on the amount of deference that should be given to the CEQA Guidelines. Specifically, Guidelines section 15126.2(a), which indicates with the following language that CEQA requires an evaluation of environmental conditions on a proposed project site if those conditions may cause substantial adverse impacts to future users of the project:

“The EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected. For example, an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there. Similarly, the EIR should evaluate any potentially significant impacts of locating development in other areas susceptible to hazardous conditions (e.g., floodplains, coastlines, wildfire risk areas) as identified in authoritative hazard maps, risk assessments or in land use plans addressing such hazards areas.”

CBIA argued that this Guideline went beyond the scope of CEQA’s statutory language and should be struck down by the Court as invalid. The Court first held that Guidelines were entitled to great weight because of the Natural Resources Agency’s CEQA expertise and because the Natural Resources Agency adopted the Guidelines pursuant to the Administrative Procedures Act, with its inherent safeguards of notice and comment. But this deference does not extend to provisions that are “clearly unauthorized or erroneous” under CEQA.

Any statutory support for this Guideline would be found in Public Resources Code section 21083(b)(3), which states that “a project may have ‘a significant effect on the environment’” if “[t]he environmental effects of a project will cause substantial adverse effects on human beings, either directly or indirectly.” Despite the deference owed to the Natural Resources Agency’s interpretation of CEQA, the court found that section 21083 “does not contain language directing agencies to analyze the environment’s effects on a project” and that “[r]equiring such an evaluation in all circumstances would impermissibly expand the scope of CEQA.”

The court was also not persuaded that special CEQA requirements to consider the existing environment for certain airport, school, and housing construction projects evidenced a larger rule. Instead, the court viewed these as exceptions to the general rule that CEQA’s analysis is concerned with the project’s impact on the environment rather than with the environment’s impact on a project or its users.

However, the court found that in certain instances, a project may exacerbate the environmental hazards or conditions that already exist, and in those instances an agency must analyze the potential impact of such hazards on future residents. The court characterized this as a situation in which the project was affecting the environment by exacerbating these existing hazards.

The court found that some of the language in Guidelines section 15126.2(a) could be read as requiring an agency to consider this exacerbation issue; however, other language could not. Accordingly, the court invalidated the following language: “an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there.”

As for the BAAQMD “receptor” thresholds, they will be considered on remand by the appellate court in light of the Supreme Court’s holding.

Key Point: Going forward, agencies are not prohibited from considering how existing conditions might impact a project’s future users or residents, but there is no longer a requirement to do so unless the project may exacerbate an existing onsite hazard.

SUPREME COURT DELAYS DEVELOPMENT OF NEWHALL RANCH PROJECT

Tuesday, December 15th, 2015

On November 30, 2015, the Supreme Court issued its decision in Center for Biological Diversity v. California Department of Fish and Wildlife, 2015 Cal. LEXIS 1043, addressing Newhall Ranch, a proposed 12,000 acre development project. The Newhall Ranch Specific Plan area, located in northwestern Los Angeles County in a portion of the Santa Clara River Valley, was first analyzed and approved by Los Angeles County in 2003. In 2010, the California Department of Fish and Wildlife (CDFW) certified an environmental impact report/environmental impact statement (EIR/EIS), approved a resource management plan, adopted a conservation plan and a streambed alteration agreement, and issued incidental take permits necessary to implement the Specific Plan previously approved by the County. CDFW’s approvals were subsequently challenged under CEQA by a coalition of conservation groups.

While the Los Angeles County Superior Court granted plaintiffs’ petition for writ of mandate on several grounds, the Second District Court of Appeal reversed on all issues and directed the trial court to enter judgment in favor of CDFW. On review, the Supreme Court considered three issues and addressed, for the first time, what lead agencies must do to sufficiently analyze greenhouse gas emissions in an EIR.

Justice Werdegar filed the opinion for the five-justice majority, with Justice Corrigan writing a separate opinion concurring and dissenting and Justice Chin writing a lengthy dissent. This decision will have far reaching implications for future EIRs, but unfortunately, the majority opinion provides little clarity on how lead agencies will be able to survive legal challenges to greenhouse gas analyses.

The majority began its analysis by stating that the appropriate threshold for the EIR’s greenhouse gas emissions analysis was a question of law that the Court should review de novo because it pertains to “correct CEQA procedure.” This holding is in conflict with previous case law stating that a lead agency’s selection of a threshold is deferentially reviewed under the substantial evidence standard.

After conducting a de novo review, all of the justices agreed that lead agencies can use consistency with AB 32 as a threshold for determining the significance of greenhouse gas emissions under CEQA. The California Air Resources Board’s 2008 Scoping Plan implements AB 32 and sets forth a plan to reduce greenhouse gas emissions in California to 1990 levels by cutting business-as-usual emission levels projected for 2020 by 29 percent. Plaintiffs argued that “business as usual” was an impermissible hypothetical future scenario under the Court’s prior ruling in Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310. The justices disagreed, holding that comparison to a “no development” scenario would be unrealistic as CEQA is not a population control measure and development would simply occur elsewhere if the project is not permitted.

But, as stated by Justice Corrigan in the dissent, the Court’s approval of this approach is “illusory” given the lack of deference provided to CDFW by the majority. The EIR/EIS analysis found that the project would result in a 31 percent reduction below business as usual estimates and that because this reduction exceeded the reductions needed to achieve the AB 32 goal, the greenhouse gas impact would be less than significant. Rather than deferring to the agency, the majority determined the analysis was inadequate because the EIR did not demonstrate “a quantitative equivalence between the Scoping Plan’s statewide comparison and the EIR’s own project-level comparison.”

The feasibility of providing evidence of this “quantitative equivalence” was questioned by both Justice Corrigan and Justice Chin, who would have found that CDFW did not abuse its discretion. According to the majority, in order to use compliance with the Scoping Plan as a threshold, the lead agency must “review the data behind the Scoping Plan’s business-as-usual model” and then “determine what level of reduction from business as usual a new land use development at the proposed location must contribute in order to comply with statewide goals.” Justice Corrigan opined that this technique would be of limited practical use. An additional consideration, noted by Justice Chin in the dissent, is that the majority “strongly hints” that the 2020 goal contained in the Scoping Plan will soon be insufficient and projects will need to meet a different goal established for a date beyond 2020. Thus, the usefulness of the Scoping Plan as a threshold is extremely limited with an upcoming (but unknown) expiration date.

The majority also took issue with the EIR’s use of the housing densities in the Santa Clarita Valley when determining the “business as usual” figure because those densities may not have been contemplated by the Scoping Plan. Justice Corrigan and Justice Chin agreed that this critique was “both hyper technical and insufficiently deferential.” Given the lack of agreement among experts about the level of greenhouse gas reduction needed at the project level, Justice Corrigan and Justice Chin would have resolved any reasonable doubts in favor of the agency’s decision.

The majority then offered two other approaches for conducting a greenhouse gas analysis, though it noted that it did not “guarantee that any of these approaches will be found to meet CEQA’s demands.” First, the lead agency can show consistency with the AB 32’s statewide goal by demonstrating compliance with regulatory programs designed to reduce greenhouse gas emissions for particular activities. Because the Scoping Plan does not propose statewide regulation of land use planning, the majority stated that local governments bear the primary burden of evaluating a land use project’s impact on greenhouse gas emissions. This can be achieved by referencing climate action plans or emission reduction plans that are developed at the local level, if the agency is fortunate enough to be considering a project in an area that has these plans in place. Second, a lead agency may rely on existing numerical thresholds of significance, like those created by the Bay Area Air Quality Management District (BAAQMD). However, since the BAAQMD thresholds were created specifically for the Bay Area, they will be of little use to projects that are being developed in other regions.

Next, the majority addressed the EIR/EIS’s mitigation measures that would allow U.S. Fish and Wildlife Service personnel to rescue stranded stickleback, a fully protected species under Fish and Game Code section 5515, subdivision (b)(9) and an endangered species under the California Endangered Species Act. The majority held that the measures authorized a taking prohibited under subdivision (a) of section 5515. In particular, the majority focused on the provision of subdivision (a) that allows fully protected fish to be possessed for “scientific research,” the definition of which does not include actions taken as part of specified mitigation for a project. The majority viewed this provision as a stricter requirement for fully protected species that supersedes Fish and Game Code section 2061, which allows the trapping and transplantation for endangered species to move them out of harm’s way. Based on the legislative history and statutory language, the majority did find that Fish and Game Code section 5515, subdivision (a) allows the trapping and transportation of fully protected fish species as part of a species recovery program, as long as these actions are not specified as project mitigation measures. Justice Chin dissented and would have held that trapping and transplantation to protect a species is distinct from the permanent catch and capture of a “take.”

Finally, the majority held that under the circumstances of this case plaintiffs exhausted their administrative remedies regarding certain claims by raising them during a comment period on the final EIS initiated by the US Army Corps of Engineers under NEPA. The majority classified this as CDFW creating an “optional comment period” on the final EIR under CEQA. The majority noted, however, that this was not a larger holding about EIR/EISs but pertained to the circumstances here, in which CDFW participated in the post-final EIS/EIR process, included responses to the late comments, and made responsive changes to the final EIR it certified.

Both Justice Chin and Justice Corrigan expressed concern about the delay caused by the majority’s opinion, noting that the litigation had already delayed the project by 5 years with further delay to come. Justice Corrigan wondered whether CEQA was becoming “a moving target, impossible to satisfy” while Justice Chin noted that “California’s environmental laws are not intended to prevent development that is needed to accommodate the state’s growing population.” Because of the majority’s decision, the 58,000 people who will eventually be housed by the Newhall Ranch project will continue to wait for a project that has been thoroughly reviewed and fully-permitted for 5 years.

Key Point

A lead agency that uses a greenhouse gas emissions threshold that relies on the AB 32 Scoping Plan must include evidence in the record that similar projects with similar impacts were contemplated by the Scoping Plan. If that is not possible, which will be likely for many projects, the lead agency should use one of the other two methods provided by the Supreme Court for analyzing greenhouse gas emissions: demonstrating compliance with regulatory programs designed to reduce emissions or using a quantitative threshold. However, the Court noted that these methods were not guaranteed to be acceptable. Additionally, a mitigation plan for a project cannot include measures that call for the relocation of fully protected species.

THIRD APPELLATE DISTRICT FINDS EIR FOR INVASIVE SPECIES EFFORTS INADEQUATE

Wednesday, December 9th, 2015

In an unpublished opinion, North Coast Rivers Alliance v. Kawamura, 2015 Cal. App. Unpub. LEXIS 8760, the Third Appellate District reversed the trial court’s rulings and found a programmatic EIR certified by California Department of Food and Agriculture (CDFA) for a seven-year program to deal with the invasive light brown apple moth (LBAM) to be inadequate. LBAMs, which are native to Australia, can negatively affect a variety of plants and trees because the moths roll up leaves to make nests and their larvae feed on the leaves and buds.

While the focus of the EIR was to eradicate the LBAM, just prior to certifying the EIR in March 2010, CDFA approved a program to control the moths instead based on new information that eradication was no longer attainable. CDFA contended that the change reduced the scope of the program. The appellants argued that the change expanded the scope of the program because pest control would have to continue indefinitely, whereas eradication would have taken place within the seven-year period studied in the EIR.

The court did not discuss in detail the appellants’ argument that the last-minute change from eradication to control violated CEQA due to a lack of accurate project description and improper “segmenting.” The court held that the EIR violated CEQA even without the last-minute change, and the last-minute change did not save CDFA from reversal because there was no assurance that a CEQA-compliant EIR would be prepared for control efforts taking place beyond the seven-year period studied in this EIR. While CDFA stipulated that environmental review would take place, the Court noted that this did not guarantee that an EIR would be prepared.

The court held that the EIR violated CEQA by failing to analyze a control program as a reasonable alternative to an eradication program. Instead, the alternatives focused on different methods that could be used in various combinations to eradicate the LBAMs. The court found this improper given the program’s objective was to protect California’s native plants and agricultural crops from damage, not merely to eradicate LBAMs. The court found this to prejudicial as it “infected the entire EIR” by causing CDFA to reject anything that would not achieve complete eradication of the LBAMs. Accordingly, the court held that the EIR was fatally defective.

Next, the court rejected the appellants’ claims that two assumptions made by CDFA were not supported by substantial evidence; specifically, that doing nothing would cause: (1) a dramatic increase in private pesticide; and (2) crop damage and reduced agricultural revenues. The court disagreed, finding that these assumptions were supported by substantial evidence. The court also rejected the appellants’ claims that the EIR failed to adequately analyze the project impacts.

Finally, the court found it unnecessary to address the appellants’ contention that the EIR’s cumulative impacts analysis violated CEQA, citing Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 101-102 for the proposition that section 21005 of the California Public Resources Code does not require the court to address additional alleged defects that may be addressed in a completely different and more comprehensive manner upon further CEQA review following remand. In this case, a new cumulative impacts discussion will be prepared when CDFA undertakes further environmental review to analyze the control program as an alternative.

Meanwhile, despite efforts to quarantine the LBAMs during the environmental review process, they have continued to spread throughout California, increasing from 10,000 to more than 71,000 in two years.

 

CITY OF SAN JOSE’S LANDFILL EIR UPHELD BY COURT

Wednesday, December 9th, 2015

In an unpublished opinion, City of Milpitas v. City of San Jose, 2015 Cal. App. Unpub. LEXIS 8610, the Sixth Appellate District upheld the City of San Jose’s Environmental Impact Report (EIR) prepared for the Newby Island Sanitary Landfill and Recyclery. The programmatic EIR assessed the impacts of: (1) increasing the maximum elevation of the landfill to increase the landfill’s capacity; and (2) rezoning the landfill area and Recyclery to conform to existing and proposed landfill activities.

The Court first determined that the document qualified as a programmatic EIR because it involved a comprehensive rezoning and because specific details about construction and operation were not available for a number of uses proposed as part of the project, requiring further environmental review.

Applying the substantial evidence standard of review, the Court rejected the City of Milpitas’ allegation that the City of San Jose utilized an improper baseline that incorporated changes proposed by the project into its assumptions. One of the three baselines considered in the EIR was the “existing conditions (as they are today on the ground, including proposed changes to existing operations).” The Court found that this baseline was appropriate because the EIR first considered the existing conditions and then analyzed the effects of the proposed rezoning at a “first-tier level of detail.”

The Court next addressed whether the impact analysis was adequate. With regard to the light impact analysis, the Court found that, as a program-level document, the City of San Jose’s analysis was proper. The final EIR expressly called for further environmental review for many uses that would be allowed by the rezoning, including expansion of landfill yard activities and construction of new structures. The structures would presumably comply with the City of San Jose’s lighting policy and design guidelines and any potentially significant project-specific impacts would be identified and mitigated as part of later environmental review.

The Court then turned to the EIR’s noise analysis. The City of Milpitas alleged that the final EIR would allow the relocation of certain landfill activities within an identified California clapper rail buffer and the relocation of such landfill activities was not properly analyzed in the EIR. The Court deferred to the City of San Jose’s interpretation of the buffer and found that the project would have no significant operational noise or vibration impacts. To the extent that the City of Milpitas also challenged the use of existing noise conditions in determining whether new uses would be substantially louder, the Court found that the existing noise levels were appropriately part of the environmental baseline.

On the odor analysis, the Court rejected the City of Milpitas’ argument that the final EIR failed to follow the air district’s significance thresholds for odor. The Court held that because the final EIR effectively treated odor impacts as potentially significant and identified mitigation measures to counteract those impacts, any deficiency in compliance with the air district’s guidelines threshold of significance was harmless. The City of Milpitas’ allegation that the EIR failed to analyze the odor impacts of increased landfill gas emissions was also rejected by the Court; the expert conclusion in the record was not contradicted by other expert evidence. The Court also rejected arguments raised by the City of Milpitas regarding volatile organic compounds and sulfur oxides because they were forfeited for failure to exhaust administrative remedies. Even assuming the City of Milpitas had not forfeit those arguments, the Court held that it had not provided any expert evidence to support its assertions on appeal.

Finally, the Court rejected the City of Milpitas’ assertion that the EIR’s project objectives were drawn so narrowly that they precluded effective analysis of alternatives to the project. The Court recognized that CEQA does not forbid site-specific project objectives and found that the site specific nature of the EIR’s project objectives did not preclude effective alternatives analysis. The Court also held that the City Council’s conclusion that none of the alternatives was feasible was supported by substantial evidence.

ON REMAND, FIRST DISTRICT MODIFIES CITY OF HAYWARD OPINION TO REQUIRE FURTHER CONSIDERATION OF THE FEASIBILITY OF OFF-SITE MITIGATION

Tuesday, December 1st, 2015

In its 2012 opinion, City of Hayward v. Board of Trustees of the California State University, 204 Cal.App.4th 446, the First District concluded that the EIR for an expansion of the California State University East Bay campus was adequate in all respects except for its analysis of parkland impacts.  While the opinion also discussed the Trustee’s claim that it was infeasible to provide mitigation payments for off-site traffic impacts without approval from the Legislature, the Court of Appeal concluded that the issue had been waived on appeal because it was not raised in the administrative proceedings or in the trial court. See previous blog post at:  http://www.thomaslaw.com/blog/newly-published-appellate-decision-holds-analysis-of-parkland-impacts-for-campus-master-plan-fails-to-comply-with-ceqa/

The California Supreme Court then granted review and held City of Hayward while it decided City of San Diego v. Board of Trustees of California State University (2015) 61 Cal.4th 945, a case which focused exclusively on whether the feasibility of off-site impact mitigation payments depended on legislative approval. After the City of San Diego opinion was issued holding that state agencies may not avoid their duty to mitigate the environmental effects of their projects because the Legislature has not earmarked funds specifically for “mitigation,” the Supreme Court remanded City of Hayward to the First District for reconsideration.

On remand, the appellate court’s analysis remains unchanged with the exception of section 3(c), which discusses the feasibility of mitigating the off-site traffic impacts. Despite repeating its earlier holding that the issue had been waived on appeal, the court directs the Trustees to consider the feasibility of funding the University’s fair-share contribution due to the “clarification provided by City of San Diego” and the “public importance of the question.”