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CEQA Updates

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

Posts from February, 2018


First District Court of Appeals Affirms, Remands LA Railyard Project FEIR, Attorney General Exempt from Exhaustion Requirements, CEQA Analyses Must Be Presented to Adequately Inform

Thursday, February 15th, 2018

The Port of Los Angeles meets the Pacific Ocean waters at sunrise (Pete)

In City of Long Beach v. City of L.A. (2018) 19 Cal.App. 5th 465, City of Los Angeles and real party in interest BNSF Railway Company (BSNF) (collectively “Appellants”) appealed a trial court’s judgement, which set aside certification of a final EIR approving BNSF’s railyard construction project. The First District Court of Appeals affirmed in part and remanded in part for further proceedings.

At the Port of Los Angeles (“Port”), shipping containers are loaded to trains at railyard facilities for transport across the country. The Port is currently served by one “near-dock” railyard facility. Trucks take some containers to “off-dock” railyards, like BSNF’s current facility twenty-four miles from the Port. BSNF proposed a new 153-acre near-dock railyard approximately four miles from the Port, diverting traffic headed to the off-dock railyard and increasing the volume of cargo transported in the Port-railway interface (“project”).

In 2005, the Port staff issued an initial study and NOP and, later, a supplemental NOP. In 2011, they released a draft Environmental Impact Report (“EIR”) for the project. In response to public comment, the Port staff revised major portions of the draft and released a revised draft EIR in September 2012 for 45-day public review. Thereafter, a final EIR (FEIR) was issued, identifying significant unavoidable environmental impacts on air quality, noise, GHG emissions, and traffic. Following public review, the board of harbor commissioners certified the FEIR and approved the project. The resolution was appealed to the Los Angeles City Council, which affirmed certification and approval of the project.

Seven consolidated petitions for writ of mandate were filed challenging the appeal. The Attorney General intervened on one of the seven. The petitioners were consolidated and transferred to Contra Costa Superior Court. In March 2016, the court set aside the certification of the FEIR and project approval. Specifically, the court found the FEIR project description and analysis of growth inducing impacts cumulative impacts, noise, traffic, air quality, greenhouse gas emissions, and mitigation measures were inadequate.

The First District Court of Appeal first addressed the Attorney General’s intervention. Appellants alleged the Attorney General failed to abide exhaustion requirements because he did not raise the issues in the administrative hearing that he brought in the intervening action. Indeed, no party had brought the claims. The Court found that neither a plain reading of Public Resources Code section 21177’s exhaustion requirements nor the legislative history supported applying the requirements of Section 21177 to the Attorney General. The Court found the Attorney General need not be a party in the administrative hearings (Pub. Res. Code, § 21177, subd. (d)) nor is limited to raising issues raised during the administrative proceedings (Ibid.) because he is specifically exempt from both identity and issue exhaustion requirements.

The Court next considered the adequacy of the project description. The Court agreed with the trial court that the FEIR project description was sufficient because it was not “misleading or inaccurate.” Unlike San Juaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, the project description at issue in this case did not send any “conflicting signals to decision makers about the nature and scope of the project” as no part of the FEIR suggested the overall rail capacity would remain unchanged.

The Court then addressed claims the FEIR failed to address indirect physical changes to the original off-dock railyards. CEQA requires consideration of all “reasonably foreseeable” indirect environmental effects. Here, the proposed near-dock site would increase the cargo capacity of the Port but this would not translate into an increase in the demand or volume of cargo. As a result, the project delayed the need for the planned expansions of the off-dock railyard and environmental effects thereof. Therefore, the Court found this analysis was adequate.

However, the Court upheld the conclusion of the trial court that the FEIR failed to adequately inform decision makers and neighbors about the concentration of pollutants in the project vicinity. Despite Appellant’s claim that it performed worst-case-scenario analyses and disclosed air quality concentration impacts, the information was spread throughout the FEIR, never analyzed or discussed, and did not disclose the frequency of significant concentration occurrences. The Court stated that the FEIR was deficient for it did not disclose or estimate how frequently and for what length of time the level of particulate air pollution in the area would exceed the standard of significance—e.g., the duration of the worst case scenario.

The Court was careful to state it did not agree with the trial court’s determination that the composite emissions or the methodology was misleading, but the analysis was instead incomplete because a reader could not compare air pollution concentrations at any given point in time. The Court determined that this deficiency rendered the public and decision makers unable to consider alternatives or mitigation measures, or balance competing considerations before adopting a statement of overriding considerations.

Further, the Court held while the cumulative impact analysis of noncancerous health risks was sufficient, the discussion of cumulative air quality impacts failed to be “good faith and reasonable disclosure” for the same reasons detailed above. Finally, the Court upheld the FEIR’s GHG analysis, noting that the project twenty miles closer to the ship yard would result in less emissions than not building the project at all.

The Court concluded by affirming the trial court’s decisions to set aside certification of the FEIR and suspend project activities until respondents bring ambient air pollutant concentrations and cumulative impacts analysis into CEQA compliance. The Court reversed the trial court’s judgements on the GHG emissions, noise, transportation and cumulative impact (for noncancerous health risks only).

Key Point:

The Attorney General is exempt from CEQA identity and issue exhaustion requirements.

An EIR must display statistical and quantitative reports in a manner which can be understood and easily accessed by laypersons. Although the information may be present in documents, if it cannot be fairly compared and understood (here, it was spread throughout thousands of pages), it will likely not stand up to a CEQA challenge.

First District Court of Appeal Reverses Upper Truckee River Restoration and Golf Course Reconfiguration Project, Citing Lack of Identified Preferred Alternative

Thursday, February 8th, 2018

The Lake Tahoe Golf Course looking toward the Sierra Nevada

In Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277, the First District Court of Appeal reversed the California Department of Parks and Recreation’s (“Department”) approval of the Upper Truckee River Restoration and Golf Course Reconfiguration Project (“Project”), finding that the failure to identify a preferred alternative in the Draft EIR compromised the integrity of the EIR process.

In 1984, the State of California acquired a 777-acre parcel encompassing a 2.2-mile stretch of the Upper Truckee River. The parcel was later divided into two units: the Washoe Meadows State Park (“State Park”) created to protect a wetland meadow and the Lake Valley State Recreation Area (“Recreation Area”) created to allow the continuing operation of an existing golf course.

Since the 1990s, erosion of the river bed of the Upper Truckee River has raised environmental concerns. The layout of the golf course, which altered the course of the river, apparently contributed to a deterioration of the habitat and water quality. The Project was proposed to reduce the discharge of sediment that diminishes Lake Tahoe’s clarity and at the same time to provide public recreation opportunities in the State Park and Recreation Area.

The Department issued a scoping notice including four alternative projects and identified one of the alternatives – river restoration with reconfiguration of the golf course – as the preferred alternative. In August 2010, the Department circulated a draft EIR (“DEIR”) for the project. Although the DEIR analyzed five very different alternative projects, including the four alternative projects identified in the scoping notice, it did not identify a preferred alternative. The DEIR stated that the lead agency would determine which alternative or combinations of features from multiple alternatives was the preferred alternative in the final EIR (“FEIR”).

In September 2011, the Department issued the FEIR, identifying a version of the project as the preferred alternative. After the Department approved the preferred alternative project in January 2012, the plaintiff sued. The trial court held in favor of the plaintiff.

On appeal, the court held that the DEIR’s failure to provide the public with an “accurate, stable and finite” project description prejudicially impaired the public’s right to participate in the CEQA process, citing County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185. Noting that a broad range of possible projects presents the public with a moving target and requires a commenter to offer input on a wide range of alternatives, the court found that the presentation of five very different alternative projects in the DEIR without a stable project was an obstacle to informed public participation.

Key Point:

When preparing multiple project alternatives in the course of drafting a DEIR, it is imperative to identify a preferred alternative to prevent prejudicially impairing the public’s ability to participate in the CEQA process.

First District Court of Appeal Strikes Down Challenge to Categorically Exempt Project, Rejects Argument that Conditions of Approval Signal Significant Impacts

Thursday, February 8th, 2018

The iconic Coit Tower sits atop Telegraph Hill in San Francisco, viewed from the southwest (Ed Villanueva)

In Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261, the First District Court of Appeal affirmed the trial court and upheld the City and County of San Francisco’s (“City”) approval of the construction of a three-story-over-basement, three-unit condominium and the restoration of an existing cottage on a 7,517-square-foot lot on the south side of Telegraph Hill (“Project”).

In September 2014, the San Francisco Planning Department (“Department”) determined that the Project was categorically exempt from CEQA. Subsequently, the Planning Commission approved a conditional use authorization for the Project. The plaintiffs appealed the Department’s decision exempting the Project from environmental review and the Planning Commission’s conditional use authorization to the San Francisco Board of Supervisors (“Board”). Both the Planning Commission and the Board imposed conditions related to pedestrian safety and possible disruption of traffic on Telegraph Hill during construction. After the Board affirmed the Planning Commission’s decisions, the plaintiffs sued the City. The trial court ruled for the City.

On appeal, calling the plaintiffs’ argument an ipse dixit, the court rejected the plaintiffs’ argument that the fact that conditions of approval were imposed on the Project meant the Project would have a significant impact. The court explained that the conditions were intended to address the ordinarily anticipated inconvenience and danger associated with significant construction activity in a congested urban environment. The court found that the conditions were not adopted out of concern that the Project would have a significant environmental effect, given that the Department approved the categorical exemptions without qualifications.

Second, the court rejected the plaintiffs’ contention that the project description was inadequate. The court found that County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, the only authority on which the plaintiffs relied to support their argument, was inapposite because Inyo considered the adequacy of a project description for an EIR, and not a CEQA exemption. The court held that the project description was adequate because it met the requirements in the City’s Administrative Code, though it did not meet the specifications for a project description in an EIR set forth in the CEQA Guidelines section 15124.

Third, the court rejected the plaintiffs’ argument that the unusual circumstances exception applied in this case because the Project’s location and site constraints were “unequivocally rare.” The court found that substantial evidence in the record supported the City’s determination that the Project presented no unusual circumstances with respect to the nearby intersection, views, and the site topography.

Finally, the court rejected the plaintiffs’ argument that the City impermissibly approved the conditional use authorization because the Project was inconsistent with the general plan. The plaintiffs argued that the Project conflicted with one of the policies in the general plan, which protects access to vistas, because the Project would obscure the views from the stairway leading to Pioneer Park. The court explained that the policy directives contained in the San Francisco general plan are not strictly construed because the agency has discretion to interpret its own plans, citing San Francisco Tomorrow v. City and County of San Francisco (2014) 229 Cal.App.4th 498.

Key Point:

When challenging the approval of categorically exempt projects on the basis of deficient project descriptions, it is imperative to cite to precedent which specifically governs categorical exemptions. Also, it is important to note that conditions of approval on a project from a lead agency do not indicate that the project has a significant impact per se.

Second District Court of Appeal Upholds Conservation Alternatives, Even in Absence of Additional Conceptual Designs; Defers to Lead Agency in Presence of Substantial Evidence

Thursday, February 8th, 2018

The building at the center of the litigation, 9080 Santa Monica Boulevard (Hunter Kerhart Photography/LA Weekly)

Rendering of the proposed Melrose Triangle Gateway building, which was proposed to replace the historic building (Architect Studio One Eleven/WEHOville)


In L.A. Conservancy v. City of W. Hollywood (2017) 18 Cal. App. 5th 1031, the Second District Court of Appeal affirmed the trial court’s decision upholding the adequacy of the environmental impact report (EIR) and supporting CEQA findings made by the City of West Hollywood (City) concerning approval of a mixed-use project on a three-acre “gateway” site in the City.

The Project, as proposed, required demolition of a building built in 1928 and remodeled in 1938, which was considered eligible for listing on the California Register of Historical Resources. The EIR acknowledged that demolition of the building constituted a significant and unavoidable impact.  As a result, the EIR included a project alternative that proposed redesigning the Project in order to preserve the historic building.  In approving the Project, the City rejected the preservation alternative, but required that portions of the historic building façade be incorporated into the Project design.

Plaintiff Los Angeles Conservancy (plaintiff) alleged that the City violated CEQA because the analysis of the preservation alternative was inadequate, the Final EIR failed to sufficiently respond to comments concerning preservation of the historic building, and evidence did not support the City’s findings that the preservation alternative was infeasible. The trial court denied the plaintiff’s petition. On appeal, the court affirmed.

First, the court held that the EIR’s analysis of the conservation alternative was detailed enough to permit informed decision making and public participation. The court rejected plaintiff’s argument that the City was required to prepare a “conceptual design” for the alternative.  The court noted that no legal authority required a conceptual design to be prepared for an alternative included in an EIR.

Second, the court found that comments on the draft EIR cited by the plaintiff did not raise new issues or disclose any analytical gap in the EIR’s analysis. The court noted that to respond to comments that merely expressed general Project objections and support for the preservation alternative, the City could properly refer the commenters back to discussion included in the draft EIR concerning the historic building on the project site.

Finally, the court stated that a court must uphold the lead agency’s findings concluding an alternative is infeasible if supported by substantial evidence. In undertaking this inquiry, “[a]n agency’s finding of infeasibility… is ‘entitled to great deference’ and ‘presumed correct.’” While the court noted that the plaintiff may have demonstrated that the City could have concluded the preservation alternative was not infeasible, other evidence in the record supported the City’s determination that the alternative was impractical or undesirable from a policy standpoint.  Thus, substantial evidence supported the City’s infeasibility findings.

Key Point:

Environmental project review documents providing detailed conservation alternatives to demolishing existing sites eligible for California Register of Historical Resources designation need not include additional conceptual designs to support these alternatives. Additionally, courts must uphold a lead agency’s finding concluding that an alternative is infeasible if supported by substantial evidence.

Fourth District Court of Appeal Finds Project Approval Improper in Seaside Subdivision; Cites Inconsistency with Local Law, Health and Safety Violations

Thursday, February 8th, 2018

The La Playa neighborhood is home to some of the most expensive homes in San Diego (Mike McCarthy / The Beacon)

In Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034, the Fourth District Court of Appeal reversed the trial court and upheld the City Council’s findings that a mitigated negative declaration (“MND”) prepared for a vesting tentative parcel map and related construction permits (“Project”) was inadequate.

The Project proposed subdividing a 1.45-acre lot into four lots, retaining an existing two-story residence on one lot, and constructing a new residence on each of the three remaining lots. The Project site is located in the La Playa neighborhood of the Peninsula Community Plan (“Plan”) area, which includes large single-family homes of various ages and architectural styles.

The proposed four lots would share a private driveway, but the slope of the driveway would be too steep for fire trucks to access the property. Accordingly, the Project would include the installation of standpipes near the furthest three residences, which would provide fire personnel with direct access to water connections in an emergency. The Project requested deviations from applicable development regulations, including the minimum rear yard setback, the minimum street frontage, and the maximum height for side yard retaining walls.

After the local community planning board recommended denial of the project based on concerns about fire safety, fire truck access, density, and the appropriateness of the requested deviation, the Planning Commission certified the MND and approved the Project. A citizen appealed the Planning Commission’s decision to the City Council, which found the MND inadequate and reversed the Planning Commission’s decision to approve the Project. The City Council denied the Project because it found it did not meet applicable City requirements, including consistency with the Plan and provisions for public health, safety, and welfare. The owners of the Project site sued the City, alleging violation of their civil rights, inverse condemnation, mandamus, and nuisance. The trial court held for the owners.

On appeal, the court held that evidence in the record supported the City’s findings that the Project was inconsistent with the Plan, particularly the Plan’s goals of conserving the character of existing single-family neighborhoods. The court found that opinions and objections of neighbors, along with expertly prepared renderings of the Project and photographs of the surrounding neighborhood, that lend credence to the neighbors’ opinions, sufficed to support the City’s findings.

The court also held that evidence in the record supported the City’s findings that the Project would be detrimental to public health, safety, and welfare. The record contained expert evidence showing flaws and omissions in the Project’s geotechnical report, as well as evidence showing that the configuration of the residences and steepness of the shared private driveway would present significant challenges for fire services personnel.

Key Point:

To succeed in recourse for City Council disapproval of a project previously approved at Planning Commission, it is essential that the project is aligned with local building requirements and is not detrimental to public health, safety, or welfare.

Fourth District Court of Appeal Upholds Issue Sanction for Misuse of Discovery Process, Obscuring Identity of Parties Sought for Deposition

Thursday, February 8th, 2018

In Creed-21 v. City of Wildomar (2017)18 Cal. App. 5th 690, the Fourth District Court of Appeal held that the trial court did not abuse its discretion in imposing an issue sanction against Plaintiff Creed-21 (plaintiff) on standing, which terminated the action, for the misuse of the discovery process in response to a motion for sanctions pursuant to Code of Civil Procedure section 2023.030 filed by Real Party in Interest Wal-Mart Real Estate Business Trust (Wal-Mart).

At trial, Wal-Mart repeatedly attempted to set a deposition and to obtain corporate documents from plaintiff in order to investigate plaintiff’s standing to bring the CEQA lawsuit. Wal-Mart’s first notice of deposition of the plaintiff’s local person most qualified (PMQ) to appear for the deposition was issued in August of 2015.  Plaintiff did not respond to the notice or the follow-up meet and confer letter sent by Wal-Mart.  Wal-Mart set a second deposition in October of 2015.  Plaintiff refused to have its PMQ appear and Wal-Mart filed a motion to compel. Thereafter, the identity of the PMQ was acknowledged to be the president of the plaintiff-company, a non-local individual.  In response to the motion, the trial court ordered plaintiff produce the PMQ for the deposition and issued $3,000 in sanctions against the plaintiff.

Plaintiff did not comply with the order by either producing the PMQ or paying the sanction. Plaintiff instead sought relief from the order, which was denied.  Plaintiff was ordered to participate in a deposition on February 8, 2016.  Plaintiff again failed to comply with the order, but urged its failure to participate in the deposition on February 8, 2016, was based on a family emergency impacting one of its attorneys.  The trial court was unpersuaded.

Wal-Mart filed a motion for sanctions, which the trial court granted based on the plaintiff’s consistent refusal to comply with the court orders on discovery. The trial court issued a terminating sanction in light of the fact that its prior issuance of monetary sanctions and two court orders did not result in the plaintiff complying with discovery rules.

The court held the trial court did not abuse its discretion when it issued a terminating sanction. The court explained that the discovery statutes evince an incremental approach to discover sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.  The trial court properly followed the progression in issuing sanctions in the case.

The court also rejected plaintiff’s claim that a terminating sanction could not be issued without a showing of bad faith. The court concluded that no decision rendered after the Civil Discovery Act of 1986 was enacted supported plaintiff’s argument.

Key Point: 

Compliance with opposing counsel’s motions and court orders are imperative in prevailing in CEQA suits. Failure to comply, and attempts at obfuscating the identity of parties required for discovery without good reason may result in issue sanctions.

Center for Biological Diversity v. California Dept. of Fish & Wildlife, 2017 Cal.App.LEXIS 1075

Thursday, February 8th, 2018

This Second District Court of Appeal decision concerns a challenge to the postremand judgment involving the Newhall Ranch Project issued by the trial court in response to Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204 and Center for Biological Diversity v. Department of Fish and Wildlife (2016) 1 Cal.App.5th 452.  Following the terms of the remand, the trial court entered judgment in favor of the plaintiffs as to two issues:  the analysis of greenhouse gas emission and stickleback impacts. Judgment was rendered in favor of the California Department of Fish & Wildlife (department) and the developer as to all other issues.

The judgment further ordered that a peremptory writ of mandate be issued directing the department to decertify the portions of the EIR that address the significance of the project’s greenhouse gas emissions, and the validity of the stickleback mitigation measures. The judgment stated: “Consistent with the Supreme Court’s opinion, all remaining portions of the EIR comply with CEQA.” Accordingly, the writ directed the department to void certification of portions of the EIR that address the department’s determination regarding the significance of the project’s greenhouse gas emissions and the stickleback mitigation measures.

The judgment and writ also enjoined all project activity including construction until the EIR was compliant with law. Further, the department also was ordered to “suspend” two project approvals that related directly to the EIR’s determinations regarding the significance of the project’s greenhouse gas emissions and stickleback mitigation measures, but four other approvals were left in place because no action was needed as to them “unless compliance with the Writ changes or affects” them.

Plaintiffs appealed from the trial court’s judgment on remand, arguing that the trial court’s decision to decertify only a portion of the EIR and leave some of the project approvals in place violated CEQA. The court rejected plaintiffs’ challenges to the postremand judgment.

First, the court explained that Public Resources Code section 21168.9, subdivision (a) clearly allows a court to order partial decertification of an EIR following a trial, hearing, or remand. The section applies when a court finds that “any determination, finding, or decision of a public agency” is noncompliant. (Pub. Resources Code § 21168.9, subd. (a).) After making such a finding, “the court must enter an order, in the form of a peremptory writ of mandate, containing one or more of three specified mandates. (Pub. Resources Code § 21168.9, subds. (a) & (b).) One of those three mandates is voiding the agency determination “in whole or in part.” (Pub. Resources Code § 21168.9, subd. (a)(1).) When a court voids an agency determination “in part,” it must make severance findings pursuant to Public Resources Code section 21168.9, subdivision (b), to determine whether the voided portions are severable, and whether the remainder will be in full compliance with CEQA. In reaching its holding, the court distinguished LandValue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675 and Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 on the basis that in those cases the courts did not make the severance findings required under Public Resources Code section 21168.9, subdivision (b).

Second, the court rejected plaintiffs’ argument that it was improper for the trial court to leave some project approvals in place. The court explained that under Public Resources Code section 21168.9, subdivision (b), the court is required to order “only those mandates which are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division.” Thus, if the court finds that it will not prejudice full compliance with CEQA to leave some project approvals in place, it must leave them unaffected.

Finally, the court reviewed the severability findings made by the trial court to confirm whether the court properly exercised its authority. Applying the abuse of discretion standard, the court concluded the trail court’s severability findings satisfied Public Resources Code section 21168.9, subdivision (b).

Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413

Thursday, February 8th, 2018

In Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal.5th 497 (“Cleveland II”), the Supreme Court reversed the Fourth District Court of Appeal’s decision (“Cleveland I”) (for an in-depth discussion of that decision, see our previous coverage of the case), and held that the EIR prepared for the San Diego Association of Governments’ (“SANDAG”) 2050 Regional Transportation Plan/Sustainable Communities Strategy (“Plan”) did not need to include an analysis of the Plan’s consistency with greenhouse gas (“GHG”) emission reduction goals of 80 percent below 1990 levels by 2050, established by Executive Order (“EO”) No. S-3-05, to comply with CEQA.

The Supreme Court remanded the case to the Fourth District Court of Appeal for further proceedings consistent with its opinion. With respect to the other alleged deficiencies in the EIR, the Supreme Court “express[ed] no view on how, if at all, [its] opinion affect[ed] their disposition.”

In Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App 5th 413 (“Cleveland III”), the appellate court rejected SANDAG’s argument that this case was moot because the Plan and the EIR had been superseded by SANDAG’s 2015 Plan and a 2015 EIR prepared for the 2015 Plan, respectively. The court explained that because the EIR might still be relied upon by project applicants the EIR was not superseded by the subsequent 2015 Plan EIR. Accordingly, the Court of Appeal reissued its opinion addressing the issues not reviewed by the Supreme Court. The court also republished its opinion, noting that automatic depublication upon grant of review is no longer required by the California Rules of Court (as it was when the Supreme Court originally took this case).

Because the matter was not moot, the court then held that the EIR failed to address mitigation for the Plan’s GHG impacts. Finding that the EIR considered three measures that would result in little to no concrete steps toward emissions reduction and three onerous or unrealistic measures, the court concluded that it lacked the information required under CEQA – a discussion of mitigation measures that could both substantially lessen the Plan’s significant GHG impacts and be implemented in a feasible manner.

Lastly, the court exercised its discretion to consider other challenges to the EIR raised through the plaintiff’s cross-appeals. SANDAG argued that the plaintiffs forfeited these challenges by failing to obtain rulings on them from the trial court. The court explained that the forfeiture rule is not automatic and the court may exercise its discretion to excuse any forfeiture when it finds the issues sufficiently important.

Turning to these challenges to the EIR, the court held that: (1) the EIR failed to adequately discuss project alternatives because none of the project alternatives focused on significantly reducing vehicle miles traveled (“VMT”), finding that SANDAG’s own Climate Action Strategy stated that achieving the state’s GHG reduction goals would require significant reductions in VMT; (2) the EIR failed to provide adequate baseline information about exposures to toxic air contaminants and the location of sensitive receptors; (3) the EIR failed to correlate the Plan-related emissions to resulting adverse health impacts; (4) the EIR impermissibly deferred the analysis of air quality mitigation measures; (5) the EIR impermissibly understated the Plan’s growth-induced impacts on agricultural lands by failing to account for impacts to farmland of less than 10 acres put into production within the last 20 years; and (6) the plaintiffs failed to exhaust their administrative remedies as to their concerns about the Plan’s impacts to small firms and lands redesignated rural residential.

In dissent, Justice Benke argued that the majority erred in reissuing Cleveland I as modified (i.e., Cleveland III) because the case should have been remanded to the trial court for it to determine whether the case was moot as a result of SANDAG’s certification of the 2015 EIR for the 2015 Plan.

Bridges v. Mt. San Jacinto Community College District (2017) 14 Cal.App.5th 104

Thursday, February 8th, 2018

The Fourth District Court of Appeal affirmed the trial court and upheld Mt. San Jacinto Community College District’s (“College”) purchase agreement for approximately 80 acres of unimproved land in the City of Wildomar (“Property”), located about a mile southwest of Interstate 15.

Over the past 17 years, the College had considered building a new campus in southwest Riverside County to serve the growing communities along the Interstate 15 corridor. In the spring of 2003, the District entered into an option agreement to purchase the Property from the property owner, Riverside County Regional Park & Open-Space District (“District”). Subsequently, the College initiated CEQA review for the construction of a 488,000-square-foot campus intended to serve approximately 15,000 part-time and 10,000 full-time students on the Property. In May 2006, the College terminated CEQA review due to a lawsuit related to the option agreement.

On May 8, 2014, the College’s board of trustees held a public meeting to consider a motion to enter into an agreement to purchase the Property from the District for $2.455 million. In June 2014, the College and the District executed a purchase agreement for the Property, which conditioned both the opening and closing of escrow on CEQA compliance. Later, the voters approved a $295 million bond measure to upgrade and expand the College’s facilities, including the construction of facilities on the Property. The plaintiffs sued the College. The trial court held for the College.

On appeal, the court held plaintiffs were barred from raising their objection in a CEQA suit because they did not offer any comments during the meeting where the College’s board of trustees considered the purchase agreement for the Property, and therefore failed to exhaust their administrative remedies. The plaintiffs argued they were excused from the exhaustion requirement because the College did not give appropriate notice of the meeting. Finding that the May 8, 2014 meeting was a regularly scheduled meeting of the board of trustees, not a public hearing under CEQA, the court held that the College provided appropriate notice at least 72 hours in advance, as required by the Brown Act. With no evidence in the record showing that the College improperly noticed the meeting, the court held that under Evidence Code section 664, it must presume the College regularly performed its official duty, including providing proper meeting notice.

The court nonetheless addressed the merits of the plaintiff’s CEQA claims. First, the court rejected the plaintiff’s argument that the College must issue an EIR before it signed the purchase agreement. The court explained that CEQA Guidelines section 15004, subdivision (b)(2)(A) allowed the College to enter into the purchase agreement if it conditioned its future use of the site on CEQA compliance. The court also found that the purchase agreement did not commit the College to a definite use of the Property, unlike the circumstances in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116.

Second, the court found that the purchase agreement was not a project under CEQA, given that no development plans existed at the time the College executed the purchase agreement. Third, stating that it “bordered on the frivolous,” the court rejected plaintiff’s argument that the College was required to prepare an EIR under Public Resources Code section 21080.09, which requires a college to prepare an EIR when it selects a location for a campus and approves a long range development plan. The court reasoned that campus site selection involves more than the execution of the purchase agreement.

Association of Irritated Residents v. Kern County Bd. of Supervisors (2017) 17 Cal.App.5th 708

Thursday, February 8th, 2018

The Fifth District Court of Appeal reversed the trial court’s decision upholding the County of Kern’s certification of an environmental impact report (EIR) and approval of a project to modify an oil refinery in Bakersfield, including the expansion of the existing rail, transfer and storage facilities, so it can unload two unit trains (104 cars) of crude oil per day, equating to 150,000 barrels.

On appeal, Plaintiffs Association of Irritated Residents argued that the EIR failed to comply with CEQA because it (1) erroneously used the refinery’s operational volume from 2007 as the baseline instead of the conditions existing in 2013 when the notice of preparation of the EIR was published; (2) incorrectly relied upon the refinery’s participation in California’s cap-and-trade program to conclude the project’s greenhouse gas emissions (GHG) would be less than significant; and (3) underestimated and failed to fully describe the project’s rail transport impacts, including the risk of a rail accident causing a release of hazardous materials and the environmental impacts of off-site rail activity. The court rejected Plaintiffs’ first two arguments but found in favor of Plaintiffs on their final argument.

With respect to Plaintiffs’ first argument, that the EIR used an improper environmental baseline for refinery operations, the court held that the decision to use refinery operation data from 2007 was supported by substantial evidence including the refinery’s history of fluctuating operations and was consistent with the Supreme Court’s holding in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310.  In reaching its holding, the court distinguished Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 because it concerned use of a “future” baseline and not a lead agency’s discretion in measuring an existing conditions baseline. In other words, the appellate court held that the unique burden the Supreme Court imposed on agencies using projected future conditions as a baseline—identification of substantial evidence that using an existing conditions baseline would be uninformative or misleading—does not apply in “historical baseline” cases.

As to Plaintiffs’ second argument, the EIR stated the project’s GHG emissions were less than significant because (1) the project is consistent with CARB’s climate change scoping plan and the cap-and-trade program and (2) GHG reductions achieved under cap-and-trade, federal renewable fuels standard, and displacement of fuel transport trucks exceed the 29 percent greenhouse gas emissions reductions target recommended by the Air District. Plaintiffs argued that the EIR’s conclusion was erroneous because compliance with California’s cap-and-trade regulation will not actually reduce greenhouse gas emissions since allowances are authorizations to emit greenhouse gases.  In rejecting Plaintiffs’ second argument, the court held that California’s cap-and-trade program constituted “regulations … adopted to implement a statewide … plan for the reduction of mitigation of greenhouse gas emissions” pursuant to CEQA Guidelines section 15064.4, subdivision (b)(3). Accordingly, the court stated that a lead agency has the discretion to conclude that a project’s GHG emissions will have a less than significant effect on the environment based on the project’s compliance with the cap-and-trade program. Thus, the court concluded the EIR’s GHG analysis complied with CEQA.

Finally, the court concluded that the EIR’s rail transport impact analysis included two flaws. First, in an unpublished section of the opinion, the court held the analysis included factual errors in its description of federal railroad safety data because it erroneously used the total number of “accident/incidents” reported for a 10-year period as the number of “train accidents.”  As a result of this error, the court concluded that the EIR understated the risk of release of hazardous materials in the event of accident during the rail transportation of crude oil to the refinery by fivefold.  Next, in a published portion of the opinion, the court also held that the EIR erroneously concluded that the Interstate Commerce Commission Termination Act of 1995 (ICCTA; 49 U.S.C. § 10101 et seq.) preempted CEQA review of certain environmental impacts of off-site rail activities. While the court acknowledged that the ICCTA may preempt some mitigation measures that may otherwise be required by CEQA, the ICCTA did not preclude the EIR from evaluating and disclosing reasonably foreseeable environmental effects that may be caused by the off-site rail activities associated with the project and addressing the feasibility of possible mitigation measures.  As a result of these errors, the appellate court directed the trial court to enter a new order granting the petition for writ of mandate.