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CEQA Updates

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

Posts from April, 2020


California Judicial Council Issues New Emergency Rules of Court in Light of COVID-19 and Freezes Civil Statutes of Limitation

Monday, April 27th, 2020

The Judicial Council of California met on April 6, 2020 to adopt a series of emergency court rules. Emergency Rule 9 tolls civil statutes of limitations (SOL)—including those found in CEQA—from April 6, 2020 to 90 days after the Governor lifts the state of emergency.

When a statute of limitation is tolled, the limitations period stops running and begins to run again when the tolling event has concluded. (See Woods v. Young (1991) 53 Cal.3d 315, 326, fn. 3 [“Tolling may be analogized to a clock that is stopped and then restarted. Whatever period of time that remained when the clock is stopped is available when the clock is restarted, that is, when the tolling period has ended.”].) This means, once the COVID-19 suspension is lifted via Governor proclamation (proclamation), careful calculation will be required ensure that procedural mishaps do not occur. For projects approved prior to the issuance of Emergency Rule 9, the statute of limitations period will include the days prior to April 6th, then the remaining days after the tolling period expires.

For example: If an NOE (with a 35-day CEQA statute of limitations) was issued on March 10th and the Governor lifts the state of emergency on June 2nd, the statute of limitations will run on September 9th. This credits the 26 days leading up to April 6th  against the 35 day SOL, accounts for the 90 days following the June 2nd lifting of the state of emergency and the remaining 9 days of the 35 non-tolled days.

For projects approved after the proclamation, but before the 90-day suspension expires, the statute of limitations will not begin until the remaining portion of the 90-day period concludes.

For example: If the Governor issues the proclamation on June 2nd, and an agency approves a project and posts an NOD (with a 30-day CEQA statute of limitations) on June 4th, the statute of limitations will run on September 30th. This accounts for the remaining 88 days of the 90-day suspension plus the ordinary 30-day statute of limitations.

The Governor must lift the state of emergency via proclamation at the “earliest possible date that conditions warrant”. (See Gov. Code 8629.) As of April 27, 2020, there have been 43,784 confirmed cases in California, with many more asymptomatic and low-grade cases evading identification. It has been speculated that the number of cases in California will reach their peak this month, although the country’s total cases are not expected to peak until (at least) the end of the month, with additional infections and deaths projected through the summer. In short, no one knows when cases will decline to the level that the Governor will issue a proclamation restarting the clock on civil statutes of limitations.

Second District Court of Appeal Rejects Challenge to Los Angeles Oil Refinery EIR

Wednesday, April 22nd, 2020

In Communities for a Better Environment v. South Coast Air Quality Management Dist. (2020) 2020 Cal.App.LEXIS 285, the Second District Court of Appeal denied a citizen group’s appeal of the trial court’s judgment rejecting their challenge to Tesoro’s oil refinery project in Los Angeles County.

The Los Angeles Refinery Integration and Compliance Project (Project) involves improving the integration of two adjacent Tesoro oil refining facilities in Carson and Wilmington. The Project would increase Tesoro’s flexibility in altering the ratio of outputs, such as gasoline and jet fuel, and would ensure compliance with air quality regulations. Primarily, the Project would reduce pollutant emissions from “burners” which heat petroleum during production. The Project would also shut down the Wilmington Fluid Catalytic Cracking Unit, a major pollution source which converts heavy hydrocarbons into lighter ones; install new pipelines; modify equipment; install new storage tanks; and change the thermal operating limit of a heater in the Wilmington facility. Additionally, the Project upwardly adjusts operating heat limits and permit ranges to match industry standards. Preliminarily, the Court noted that the heat limits and permit ranges would result in no physical changes to the Wilmington heater or other hardware, though it would potentially allow for the processing of a heavier blend of crude oil or increase throughput by 6,000 barrels per day—but not both.

In September 2014, the South Coast Air Quality Management District (SCAQMD) issued an Initial Study and NOP on the Project. In March 2016, SCAQMD circulated an approximately 1,700-page DEIR for public comment and extended the public review period to 94 days (49 days over the statutorily required 45-day circulation period). SCAQMD received over 2,000 comments on the report; the vast majority of which were positive. Communities for a Better Environment (Petitioner) submitted over a thousand pages of comments on the Project, to which SCAQMD responded. Following certification of the EIR, Petitioner filed suit, alleging that the Project EIR used the wrong baseline, failed to explain its estimated barrel per day increase, and failed to disclose the existing volume of crude oil the refinery processes as a whole or the refinery’s unused capacity. Petitioner also alleged that SCAQMD failed to obtain information about the pre-Project composition of crude oil that the refinery processes, merely finding the post-Project input would remain within the refinery’s “operating envelope.” The trial court rejected these arguments and denied the writ, and Petitioner timely appealed.

The Court found that the EIR used the appropriate baseline. SCAQMD relied on a near-peak (98th percentile) method by collecting information on the refinery’s worst air pollution emissions during a two-year period and excluded the top 2% of the data to remove “extreme and unrepresentative outliers.” The remaining data was used to compare actual pre-Project near-peak emissions with projected peak emissions due to Project activities. Petitioner argued for the use of an average-value baseline. SCAQMD rationalized that the near-peak baseline would measure and control the most significant Project-related health and pollution dangers. The Court held that substantial evidence supported SCAQMD’s baseline approach because the near-peak baseline matches the EPA’s baseline approach and because the baseline takes demand fluctuations into account. Petitioner argued that relying on the federal approach was misguided due to the differing purposes between federal regulations (which regulate air pollution) and CEQA’s baseline requirement (which, “is meant to establish pre-project conditions to compare with post-project operations”). The Court rejected this argument, acknowledged the benefits of following the EPA methodologies, and held that, because California’s environmental goals “to protect the public health and welfare” were “identical” to those of the EPA, the EPA’s methodologies were acceptable. The Court concluded that the EPA’s use of the near-peak baseline was substantial evidence validating SCAQMD’s use of the baseline here.

In analyzing air quality impacts, the EIR noted that the Project could allow the refinery to process an additional 6,000 barrels per day or process a slightly heavier crude oil blend. SCAQMD determined the worst-case analysis would focus on increased production, finding that the Project would not change the “fixed crude oil operating envelope.” Petitioner argued that SCAQMD failed to obtain information about pre-Project composition of crude oil refinery processes, instead focusing on the fact that crude oil input would remain within the refinery’s “operating envelope.” The Court rejected this argument, finding reliance on the crude oil operating envelope was appropriate because only a specific range of crude blends can be processed in the refinery. The Project would not change facilities upstream or downstream of the Coker to allow the refinery to process a different range of crude oil (in terms of hydrocarbon weight and sulfur content). The agency extensively analyzed whether the crude oil composition would change due to the Project, and the EIR disclosed why it was physically impossible for it to do so. This obviated the need to disclose further detail regarding crude oil composition. Since the EIR properly disclosed and analyzed whether crude oil composition would change, the Court found the EIR provided a thorough, consistent, stable, and logical explanation as to why the Coker would not process a heavier slate of crude as a result of the Project and rejected Petitioner’s claim.

Petitioner claimed that, without knowing exactly how SCAQMD calculated their 6,000-barrels a day figure, CEQA’s informational purpose would be undermined. The Court found Petitioner forfeited this argument because it failed to raise the exact issue before the agency during the administrative process.

Petitioner argued that the EIR failed to disclose the existing volume of crude oil the refinery processes as a whole and the refinery’s unused capacity. The Court held that the EIR adequately explained why the Project would not increase the refinery’s overall throughput due to physical limitations associated with upstream and downstream facilities. The Court additionally noted that the assumed 6,000 barrels per day increase would be offset by a 10,000 barrels per day decrease of vacuum gas oil the refinery previously used as feedstock for the Wilmington Cracking Unit—resulting in a net decrease in overall refinery throughput. The Court similarly dismissed Petitioner’s unused capacity claim by summarily stating there was no need for the EIR to include data on the difference between peak and average capacities because substantial evidence supported the EIR’s analysis.

Dissent

The dissenting opinion on the baseline issue found substantial evidence did not support SCAQMD’s use of the 98th percentile “near peak” baseline. It cited Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, in reiterating “that the impacts of a proposed project are ordinarily to be compared to the actual environmental conditions existing at the time of CEQA analysis, rather than to allowable conditions defined by a plan or regulatory framework.” (Id. at p. 321.) It did not find the EPA’s approach material to what is required under California law. The dissent further stated that the near-peak baseline failed to provide a realistic baseline of existing conditions as required by CEQA Guidelines section 15125 because it only reflected pollution levels occurring on the 15 worst days out of a 730-day review period. As a result, the baseline provided an inaccurate or diluted picture of the Project’s future impacts to the public and decisionmakers. The dissent stated SCAQMD “should have analyzed environmental conditions representing the entire period, or explained in the EIR why this was not possible, realistic, or informative.”

Key Point

The opinion reinforces the deference owed to agencies in selecting a baseline if supported by substantial evidence and reiterates there is no such thing as a “normal” baseline.

Aesthetics

Wednesday, April 22nd, 2020

CEQA states California’s policy to take all action necessary to provide people with enjoyment of the state’s many aesthetic, natural, scenic, and historicenvironmental qualities. (Pub. Resources Code, § 21001, subd. (b).) Aesthetic impacts occur when a project has the potential to substantially degrade the existing visual character or quality of a site, its surroundings, or scenic views. (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 363, 374–375; Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 936-937 (Pocket Protectors).)

Aesthetic impacts are unique among CEQA impacts in that they are inherently subjective. I like Monet, you like Mapplethorpe. Ultimately, no statewide definition exists of what is or is not aesthetically acceptable. Rather, aesthetic determinations are informed by local ordinances, zoning codes, the project’s setting, public comment, and the discretion of local decisionmakers.

The significance of an aesthetics impact is measured in light of the context where it occurs. (See Bowman v. City of Berkeley (2004) 122 Cal.App.4th 572, 589-593 (Bowman).) Aesthetic analyses consider whether a project is in an urban or undeveloped rural area, or if a project impacts a public view, park, trail, or historical resource. (See San Francisco Beautiful v. City and County of San Francisco (2014) 226 Cal.App.4th 1012, 1026; Porterville Citizens for Responsible Hillside Development v. City of Porterville (2007) 157 Cal.App.4th 885, 903 (Porterville Citizens); Ocean View Estates Homeowners Assn., Inc. v. Montecito Water Dist. (2004) 116 Cal.App.4th 396, 402.) An aesthetic impact will only be considered significant if it affects the environment of persons in general—impacts to particular persons do not suffice. (Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, 1041-1042; Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 492-494.)

Expert opinion is generally needed to provide substantial evidence of a significant environmental impact under CEQA, but an aesthetics challenge may be supported by lay opinion. (See, e.g., Georgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App.5th 358, 363 (Georgetown); Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129; Bowman, supra, 122 Cal.App.4th at pp. 587-588.) Therefore, lead agencies should avoid dismissing public comments on aesthetics impacts—particularly where relying on negative declarations—because a court may find reasoned public opinion amounts to substantial evidence of a fair argument of a significant impact. (See Pocket Protectors, supra,124 Cal. App. 4th at p. 939.) Nonetheless, public concern or complaints about the aesthetic impacts of a project do not automatically satisfy the low threshold of the fair argument standard. Aesthetic claims raised under the guise of preserving “community character” or “subjective psychological feelings or social impacts” are insufficient. (Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560; City of Pasadena v. State of California (1993) 14 Cal.App.4th 810-829.) Aesthetics challenges premised on economic concerns similarly do not suffice. (E.g., Porterville Citizens, supra,157 Cal.App.4th at pp. 903-904; Guidelines, § 15131, subd. (a).) And, as mentioned, context counts. The Legislature did not intend to require an EIR where the sole environmental impact is the aesthetic merit of a building in a highly developed area, for example. (Bowman, supra, 122 Cal.App.4th at p. 592.) Otherwise, an EIR would be required for every urban building project unexempt from CEQA “if enough people could be marshaled to complain about how it will look.” (Ibid.)   In conjunction with the statewide push to close the housing needs gap, the Legislature specified that aesthetic impacts need not be analyzed when a lead agency considers a housing project involving the refurbishing, converting, repurposing, or replacing an existing, dilapidated or vacant building, unless that housing project impacts the aesthetics of a state scenic highway or cultural resource. (Pub. Resources Code, § 21081.3(a).) Additionally, Senate Bill 743 bars project opponents from bringing aesthetics challenges under CEQA to residential, mixed-use residential, or employment center infill projects in a transit priority area. (Pub. Resources Code, § 21099, subd. (d).)

Fifth District Court of Appeal Finds EIR for Kern County’s Streamlined Oil & Gas Program is Deficient Under CEQA

Tuesday, April 7th, 2020

In King and Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, the Fifth District Court of Appeal found that a Kern County’s approval of a zoning amendment and streamlined process for developing new oil and gas facilities violated CEQA insofar as water supply, air quality, agricultural land conversion, noise, and recirculation principles were concerned. The Court penned a detailed 150-page opinion addressing multiple topics and relevant standards of review.

In 2013, three oil and gas industry associations approached Kern County staff with a proposal to amend the zoning ordinance to allow for a local permitting process for oil and gas exploration, development, and production activities. The proposed process would implement standardized regulations, streamline environmental review for oil and gas operations, and develop programmatic mitigation measures. If the County determined that the permit review process was ministerial, future permit applications would not be subject to additional CEQA review. Instead, the amendments would require all new oil and gas activities to undergo “Oil and Gas Conformity Review”, subject to mitigation required by the zoning amendment EIR.

In November 2015, over public comment in opposition, the Kern County Board of Supervisors approved the ordinance and certified the EIR. On December 9, 2015, King and Gardiner Farms, LLC and others (collectively, Plaintiffs) filed a verified petition for writ of mandate and complaint for declaratory and injunctive relief against the County and the oil and gas industry associations. The trial court found that the EIR violated CEQA because it failed to analyze the ordinances’ impacts to rangeland and the environmental impacts from a road paving mitigation measure that was intended to reduce air quality impacts. The trial court rejected the remaining CEQA claims.

In June 2018, Plaintiffs appealed the trial court’s rejection of the other CEQA causes of action, alleging that the court did not accurately assess the EIR’s water, air quality, agricultural land conversion, biological, and noise impacts.

The published portions of the Opinion address CEQA violations relating to water, conversion of agricultural land, and noise as well as the appropriate appellate remedy. In response to Plaintiffs’ assertion that inadequacies in the EIR undermined its effectiveness as an informational document, the Court focused on the Supreme Court’s decision in Sierra Club v. County of Fresno (2018) 6 Cal.5th 502 (Friant Ranch), which held that in some cases, claims of EIR inadequacy cannot be neatly categorized as either factual or procedural error. In such cases, the choice of the applicable standard of review for claims of inadequacy must be determined on an issue-by-issue basis. Accordingly, the Court addressed the standard of review with regard to many issues addressed in the appeal.

WATER

The Opinion’s water section addresses the EIR’s geographic scope in analyzing water supply impacts, analysis of recent drought conditions in the County, and the adequacy of mitigation measures.

  1. Water Supply Impacts

The Court first addressed the EIR’s regional assessment of water supply impacts. The County alleged that the substantial evidence standard of review applied to the decision to use regional subareas (as opposed to local water supplies), while Plaintiffs argued that the omission of essential information about impacts to local water supplies was subject to de novo review. The Court found that an inquiry into the EIR’s analysis to the extent “reasonably possible” was a mixed question of fact and law, in which factual questions predominated, so the substantial evidence standard applied. The Court distinguished their earlier decision in Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 (Madera Oversight). The Court explained that while Madera Oversight stated that whether disclosures regarding a project’s water supply comply with CEQA is a matter of law, Madera Oversight’s conclusion was based on the circumstances of that case and did not constitute “an all-encompassing rule of law.”

The EIR contemplated the water demand created by the project in the context of the overall demand for water in the area. Plaintiffs contended that this approach resulted in a dearth of detailed, informative analysis required under CEQA because regional analyses disregard local water supply impacts. Plaintiffs alleged it was “reasonably possible” for the County to analyze local impacts, and that the failure to do so constituted a material error under Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, 431. The County argued that localized analysis would pose technical challenges and be speculative due to uncertainties in long-term use forecasting, partly due to uncertainty surrounding implementation of the Sustainable Groundwater Management Act (SGMA).

Several real parties in interest (Oil Associations) in part argued that to the extent there were any impacts on the water supply, it was a small net positive impact because the industry’s produced water use would exceed its municipal and industrial (M&I) demand in 2035. (Produced water is poor-quality groundwater brought to the surface during oil and gas extractions; M&I water is good quality freshwater.) The Court explained this argument was erroneous because baseline water supply conditions in the project area were projected to change for the worse. However, the Court sided with Oil Associations and found that their water supply analysis was conducted to the degree “reasonably possible” because SGMA and the implementation of groundwater sustainability plans supported the determination that a localized water supply analysis would be speculative.

  • Analysis of the Drought

Next, the Court addressed Plaintiffs’ argument that the EIR violated CEQA because it failed to meaningfully address a historic four-year drought, and that the failure to use the most recent water supply data underestimated the project’s actual effect on water shortages. The Court explained that under Friant Ranch, Plaintiffs’ claim raised the issue of whether the EIR’s discussion of environmental impacts was adequate, i.e., facilitates informed agency decision making and public participation. The Court assumed to Plaintiffs’ benefit that, in this context, this presented a question of law. Despite applying the more rigorous de novo review, the Court found that the EIR, including the water supply analysis, adequately facilitated informed agency decisionmaking and informed public opinion.

Plaintiffs also argued that pursuant to Guideline section 15064(b), the County was required to use updated state projections of imported water, published before the Final EIR was released in 2015. Citing Guidelines section 15125, the Court explained the EIR must describe the physical environmental conditions at the time the project’s notice of preparation is published. The Court found that the EIR did not violate CEQA because it used the information available when the notice of preparation was published in 2013 and therefore included sufficient discussion of the drought and its consequences, albeit, at its nascent stages.

The Court addressed whether updated data about the drought and its continued impact on water supplies constituted significant new information warranting recirculation. The Court reviewed the County’s determination that the updated drought data did not constitute significant new information requiring recirculation under the substantial evidence standard, in accordance with CEQA Guidelines section 15088.5. The Court found that Plaintiffs failed to acknowledge that the substantial evidence test applied to recirculation and, as a result, failed to carry their burden to establish that the decision to rely on the 2013 evidence was unsupported by substantial evidence. The Court also noted that the public nonetheless had a meaningful opportunity to comment on the Ordinance’s potential water supply impacts.

  • Mitigation of Water Supply Impact

Plaintiffs alleged that the County unlawfully deferred water supply mitigation by adopting measures related to the use of M&I groundwater which lacked specific, mandatory performance criteria and would not be implemented before project activities began causing environmental impacts. The Court found that the measures inappropriately deferred formulation and delayed implementation. Relying on Endangered Habitats League, Inc. v. County of Orange (2005) 132 Cal.App.4th 77 and POET, LLC. V. State Air Resources Bd. (2013) 218 Cal.App.4th 68 (POET I),the Court stated that when mitigation is feasible but impractical at the time of a zoning amendment, the agency may defer mitigation upon committing itself to specific performance criteria. The Court found that the measures’ various directives and goals to “increase” the use of produced water and “reduce” M&I water did not constitute specific performance criteria necessary to evaluate the efficacy of the measures implemented. By stating a generalized goal for mitigation, the measures did not provide concrete understandable standards or enforceable commitments. The Court noted that if such measures satisfied CEQA, lead agencies and project proponents would have little incentive to define mitigation measures in specific terms. Instead, they would simply require permit applicants to adopt all feasible mitigation measures for a list of significant environmental impacts—undermining CEQA’s dual purposes of systematically identifying feasible mitigation measures which avoid or substantially lessen significant effects and providing a detailed statement of the measures proposed to minimize these significant effects.

After ruling the mitigation measures were inadequate, the Court devoted considerable discussion to the consequences of the defect on the overall validity of the EIR. Citing Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, the Court noted that if the County had relied on the measures to find the project’s significant effects on water supply were mitigated to a less than significant impact, under the prejudicial abuse of discretion standard, the error would have been reversible. However, it found further analysis was required to evaluate Oil Associations’ claim that adopting a statement of overriding considerations had cured any unlawful deferral of mitigation. Specifically, Oil Associations noted the County concluded the effectiveness of the mitigations measures was uncertain, found the water supply impacts to be significant and unavoidable, and accordingly adopted a statement of overriding considerations. It argued CEQA required nothing further when all feasible mitigation had been adopted.

The Court first analyzed whether CEQA allows a lead agency to adopt mitigation measures of uncertain effectiveness; it ruled this was permissible upon the satisfaction of four criteria. First, the lead agency must find that the measures are at least “partially effective” at reducing significant environmental effects, all feasible mitigation measures have been adopted, and the environmental impacts will not be mitigated to a less than significant level. Second, the lead agency must adopt a statement of overriding considerations. Third, the EIR must identify and explain the uncertainty in the effectiveness of the mitigation measures. Fourth, the EIR must adequately describe the feasible mitigation measures.

The Court held that when considering the description of a mitigation measure, generally, independent review is appropriate. However, when factual questions predominate, review under the more deferential substantial evidence standard is appropriate. While the Court did not expressly state which standard of review applied, it appeared to treat the issue as subject to de novo review upon finding an informational deficiency. The Court found that the EIR’s discussion of the mitigation measures partial effectiveness was impermissibly ambiguous and the EIR failed to adequately describe the currently feasible mitigation measures for significant water supply impacts. The EIR provided no information about what mitigation measures applicants must implement, what technologies or techniques would achieve a balance of water supply and demand, or if an applicant would be required to commit to any measures. The Court held that it was impermissibly unclear if any mitigation would be imposed during the permitting process, and that the EIR’s disclosures were inadequate on an informational basis. Together, these failures constituted a prejudicial abuse of discretion.

The Court then concluded that the County’s statement of overriding considerations did not remedy this inadequacy because the County assumed that the EIR was adequate as an informational document in adopting the statement of overriding considerations. 

AGRICULTURAL LAND

The EIR concluded that the project would have a significant effect on agriculture due to continual project-related agricultural land conversions through the year 2040. Plaintiffs challenged the implementation of a four-option mitigation scheme which the EIR concluded would provide a mitigation ratio of 1:1. The options included: (1) funding or purchasing agricultural conservation easements, (2) purchasing mitigation banking credits, (3) agricultural land restoration through removing gas and oil paraphernalia, and (4) participating in “any” equally effective agricultural land mitigation program adopted by the County. The EIR stated that these options could be applied to lands within and outside of the County, and that they were sufficient to mitigate the significant impacts to agricultural lands.

Plaintiffs alleged this approach violated CEQA because it failed to ensure effective mitigation. Plaintiffs also argued that the County failed to adopt measures raised during the public comment period which would ensure effective mitigation—such as a clustering measure which would reduce the total amount of converted agricultural land. The County argued these challenges were subject to the substantial evidence standard of review and that substantial evidence supported the effectiveness of the measure.

The Court found that the agricultural conservation easement, mitigation banking credit, and “other measure” options were ineffective and that the County’s approval of the measure was erroneous under CEQA.

First, the Court determined the agricultural conservation easement option was ineffective by analogizing it to a substantially similar measure rejected in Citizens for Government v. City of Lodi (2012) 205 Cal.App.4th 296 (Citizens-Lodi), in which the Third District held that the use of agricultural conservation easements and the operation of 1:1 mitigation ratio were subject to the substantial evidence standard of review. In Citizens-Lodi, the Third District held that the city properly concluded agricultural easements of any ratio do not constitute “mitigation in the true sense of the word” because they do not reduce impacts to farmland. Accordingly,  Citizens-Lodi held that the city properly rejected a 2:1 conservation easement ratio as not “feasible” and properly adopted a statement of overriding considerations. Here, the Court found that allowing applicants to enter into binding agricultural conservation easements did not create new agricultural land—it simply prevented the future conversion of that agricultural land. Because the agricultural conservation easement option did not offset the loss of agricultural land, and because it would not mitigate the significant impact to agriculture, the Court ruled that agricultural conservation easements do not provide effective mitigation for conversion of agricultural land.

The mitigation banking credit option was found to be ineffective under the substantial evidence standard used in Gray v. County of Madera (2008) 167 Cal. App. 4th 1099.  In Gray, the court held that a traffic impact fee is an appropriate form of mitigation when linked to a reasonable plan for mitigation. Here, the Court extended the principle to apply to the assessment of fees and the purchase of credits to mitigate agricultural land conversion. The Court held that because the record contained no mention of mitigation banks or programs in the County, the link between the fee and the plan was lacking. Relying upon the eventual existence of banks and programs was not enough to offset the significant impacts to agricultural lands. Similarly, the Court rejected the use of the “other measures” option, based on the County’s failure to identify any effective programs or strategies. 

The agricultural land restoration option was found to be effective because it would offset the conversion of agricultural land by returning previously converted land to agricultural use.

The Court identified that if agricultural land restoration was the sole option included in the mitigation measure, it would effectively mitigate agricultural losses. But, because the County approved three options which failed to mitigate these losses, the measure was infective in its entirety because permit applicants could rely on ineffective options. Therefore, the County erred in finding agricultural conversion impacts would be reduced to less than significant.

The Court addressed Plaintiffs’ argument that the County violated CEQA by failing to respond to comments proposing a clustering measure which would potentially lower the total amount of converted agricultural land. Clustering was discussed in the EIR’s “Alternative 3”, which identified that while it would not avoid impacts to agricultural lands altogether, it would minimize some environmental impacts. The County rejected Alternative 3 based on legal and economic grounds. The Court, relying again on the substantial evidence standard of review, found that although clustering was discussed in the alternatives section, the County’s response to comments was insufficient because the clustering proposal qualified as a “major environmental issue” under CEQA Guidelines section 15088. The Court held that the County’s response was deficient because it did not separately address and consider the clustering of wells and infrastructure when feasible as a possible mitigation measure. Based on this conclusion, and the conclusion that the adopted mitigation measure did not reduce agricultural land impacts to a less than significant level, the Court held that the County’s failure to provide a reasoned analysis of the proposed mitigation measure constituted a prejudicial abuse of discretion.

NOISE

The project’s noise impacts were assessed by establishing a threshold of significance, predicting the noise levels associated with oil and gas activities under the project, and comparing these predictions to the significance threshold. The EIR described the environmental setting for the project by including ambient noise measurements at 18 sites within the project area. The overall average ambient noise level was 54.7 dBA, with specific measurements ranging from 44.8 dBA to 67.8 dBA. The EIR adopted a single threshold of significance from the County’s general plan, which requires mitigation to reduce exterior noise levels generated by new projects to 65 dBA or less. The EIR used the 65 dBA threshold as the maximum noise level allowed in the project area and did not consider the magnitude of the increases caused by the project. The EIR found that a permanent increase in ambient noise levels in excess of 65 dBA would occur as a result of the project but ultimately concluded that the impact would be mitigated to a less than significant level with the implementation of setback measures.

Commenters alleged that the EIR’s approach should have addressed the magnitude of dBA increases over ambient noise levels, rather than compliance with the 65 dBA cap. Specifically, commenters argued that sites which were projected to experience a 5 dBA increase in ambient noise levels required additional analysis. The EIR also included a noise study that suggested 5 dBA as a threshold for increase in ambient noise. The County rejected these suggestions, relying on the general principle that lead agencies have the discretion to determine the appropriate thresholds of significance.

Plaintiffs alleged that the EIR did not adequately analyze noise impacts and improperly selected the threshold of significance for ambient noise increases in the project area. Plaintiffs also argued that the County erred in concluding that the mitigation measures would prevent all significant increases in ambient noise. The County argued that it was entitled to substantial deference in selecting its significance threshold, and that its conclusions were supported by substantial evidence.

The Court engaged in a lengthy case review to establish the principles that conformity with an absolute maximum noise level specified in a general plan does not prevent a fair argument from being made that the proposed project would generate environmentally significant noise impacts and that a lead agency should consider both the increase in ambient noise level as well as the absolute noise level associated with a project.

The Court first found that omitting discussion of the 5 dBA increase over ambient noise levels was not an automatic violation of CEQA because (while a common threshold of significance for noise increases) the increase is not a legal threshold of significance.

Instead, the Court focused its inquiry on whether the County violated CEQA by using a single standard related to the absolute noise level as the threshold of significance for evaluating all noise impacts. The Court analogized to two cases: Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, which addressed the adoption of a single threshold of 65 dBA for determining noise significance; and Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 716, where the lead agency deemed any increase in noise to be insignificant so long as the absolute noise level did not exceed to standards in the county general plan and noise ordinance. In both cases, the use of a single, absolute noise level as the threshold of significance violated CEQA. The Court found that the County’s exclusive reliance on the absolute noise level of 65 dBA violated CEQA because it did not provide a complete picture of potential noise impacts. The EIR did not provide an explanation of why an increase of 20 dBA at the quietest sites would be as insignificant as an increase of 2 dBA at the loudest site. The Court stated that the County’s justification was “based primarily on a self-serving legal analysis” of its discretionary authority to set thresholds of significance. The County’s responses to comments ignored authority opposing its position and failed to explain why the holding in Keep Our Mountains Quiet (stating that conformity with a general plan will not insulate an EIR from a judicial conclusion that the project fails to comply with CEQA) did not apply. The EIR also failed to explain why the magnitude of the increase in ambient noise levels played no role in determining whether the change was significant.

The Court noted that under Center for Biological Diversity v. Department of Fish and Wildlife (2015)62 Cal.4th 204, agencies have “substantial” discretion to choose thresholds of significance, but this discretion is not unlimited or absolute. When relying on a single quantitative method to justify a no-significance finding, lead agencies are required to support their chosen quantitative method for analyzing significance with evidence and reasoned argument. Here, the County failed to document how the single absolute threshold—which did not consider the magnitude noise increases—accurately described how changes in noise would impact receptors in the project area. If the County had recognized that both the increase in ambient and absolute noise levels of noise associated with a project were relevant to environmental review, it “might” have been able to show why the magnitude was irrelevant in determining significance, but the failure to do so in the EIR constituted a violation of CEQA. The Court concluded that the County’s claim that its general plan provided substantial evidence supporting its choice of threshold was insufficient because the general plan did not conclude that all increases in magnitude were insignificant until the 65 dBA cap is exceeded.   

APPELLATE RELIEF

The Court concluded that the County must set aside certification of the EIR and the ordinance authorizing the project but allowed the permits already issued under the ordinance to remain in effect.

The Court rejected the County’s request to leave the ordinance in effect while a new EIR was prepared, noting that CEQA is designed to protect the public’s interest in the environment. This is in contrast to the holding in POET I, where the Air Resources Board (ARB) violated CEQA in connection with approving statewide regulations containing low carbon fuel standards but the underlying program was kept in place. In POET I, the court held that voiding the approval of a program does not necessarily invalidate or suspend the operation of the program. Instead, in “extraordinary cases”, the court can maintain the status quo and allow the regulations to continue operating. In POET I, the Legislature required ARB to implement low carbon fuel standards by adopting regulations—an action which would protect the environment—so ARB did not have the discretionary authority to abandon the project. Here, in contrast, the County was not required to adopt the program. Additionally, it was indisputable that the program would not protect the environment.The Court concluded that the desire to protect economic benefits did not warrant the exercise of their authority to leave the program in place.

UNPUBLISHED HOLDINGS

In unpublished portions of the Opinion, the Court concluded the County violated CEQA with respect to air quality and related health risks and by failing to recirculate a health risk assessment for public review.

KEY POINTS

Adopting a statement of overriding considerations does not cure the failure to analyze potentially feasible mitigation measures where the EIR only adopts mitigation of “uncertain” efficacy. The court held that agricultural conservation easements that do not offset losses to agricultural land do not constitute effective mitigation. Where an EIR exclusively relies on an absolute noise threshold, and disregards potentially significant changes in ambient noise levels, the EIR must provide substantial evidence to support its determination that the change in ambient noise is irrelevant to the significance of the noise impact. A regulatory program with significant, adverse environmental impacts that serves to attain economic benefit does not constitute an “extraordinary case” warranting a court exercise its inherent equitable authority to uphold the status quo and allow the regulations to remain operative while the lead agency complies with CEQA.

Fourth District Court of Appeal Finds Caltrans Project Not Exempt from CEQA; Caltrans Misrepresented Project Approval Process and May Be Equitably Estopped from Asserting Statute of Limitations

Tuesday, April 7th, 2020

In Citizens for a Responsible Caltrans Decision v. Department of Transportation (March 24, 2020) 2020 Cal. App. LEXIS 243, the Fourth District Court of Appeal found that the California Department of Transportation (Caltrans) improperly relied on a CEQA exemption in approving a San Diego County freeway interchange project. The Court further found evidence that Caltrans misrepresented the environmental review process and that the writ petition sufficiently pleaded that Caltrans was equitably estopped from asserting the 35-day statute of limitations. Accordingly, the Court overturned the trial court’s grant of demurrer and dismissal of the petition challenging project approval.

In 2005, Caltrans filed a notice of preparation for the construction of two freeway interchange ramps connecting Interstate 5 and State Route 56 in southern California (the Project). The Project was part of Caltrans and the San Diego Association of Governments’ larger North Coast Corridor (NCC) project, which covers transportation improvements to a 27-mile corridor between La Jolla to Oceanside in San Diego County.

Streets and Highways Code section 103 (section 103), effective January 1, 2012, provides for integrated regulatory review by the Coastal Commission of a public works plan (PWP) for the projects within the NCC. Section 103 provides a streamlined process for approving projects included in the PWP, rather than requiring the Coastal Commission to undertake project-by-project approval. It further provides that the Coastal Commission’s certification of the PWP is subject to CEQA but exempt from the requirement to prepare an EIR. Instead, section 103 permits the Coastal Commission to prepare a substitute (i.e., functional equivalent) environmental document, similar to when the Coastal Commission certifies a local coastal program.

The Coastal Commission approved the PWP in August 2014. The PWP included a provision  that the Coastal Commission retained authority over PWP projects, thereby precluding the need to obtain coastal development permits from multiple local jurisdictions. The PWP further stated that the Coastal Commission’s review and approval process for the PWP should not supplant the review processes required by CEQA, NEPA, or other regulatory schemes. Rather, compliance with the CEQA, NEPA, and other regulatory schemes were to be addressed at the project level.

In April 2012, Caltrans circulated the Project DEIR, which identified Caltrans as the lead agency and stated that an FEIR would be prepared identifying the preferred alternative and including responses to comments. The June 2017 Project FEIR stated that once it was circulated, if Caltrans decided to approve the Project, Caltrans and the Coastal Commission would publish an NOD in compliance with CEQA. This process comported with previous projects under the NCC project, including an October 2013 NCC project freeway widening project, which noted in its EIR that section 103 was not intended to eliminate project-specific CEQA or NEPA review; rather, it was to provide for integrated regulatory review by the Coastal Commission.

However, the Project FEIR also included statements inconsistent with the above. It identified the Project as a PWP project. It then stated that the CEQA process for the Project was initiated prior to the enactment of section 103, that CEQA review was no longer required, but public disclosure of the analysis of the Project’s anticipated impacts in the format of a FEIR was desirable for informational purposes. The FEIR stated that it was drafted in compliance with NEPA, the California Coastal Act, and CEQA “to the extent it is applicable”.

Nearly two weeks before the 30-day public review period for the FEIR commenced, Caltrans approved the Project without providing public notice. On July 12, 2017, two days before the public review period began, Caltrans issued a notice of exemption (NOE), relying on section 103 and consistency with the Coastal Commission’s certified regulatory program. Nonetheless, during the 30-day public review period, Caltrans received and responded to public comments on the FEIR.

In September 2017, Citizens for a Responsible Caltrans Decision (Petitioner) became aware of the NOE. Caltrans refused Petitioner’s request to rescind the NOE or agree to a 180-day statute of limitations for challenging its approval. In November 2017, Petitioner sued, alleging that Caltrans erroneously claimed that the Project was exempt from CEQA under section 103 and that Caltrans was equitably estopped from relying on the 35-day statute of limitations for challenging the NOE. Caltrans demurred, alleging that Petitioner were barred by the statute of limitations and that the Project was exempt from CEQA under section 103. The trial court sustained the demurrer without leave to amend and dismissed the petition.

On appeal, the Fourth District, taking up the issue as a matter of first impression, found that section 103 treated the PWP as a long-range development plan (through reference to Pub. Res. Code sections 21080.5 and 21080.9), thereby exempting it from the requirement to prepare an EIR. Following rules of statutory construction, the Court ruled that nothing in section 103 exempted Caltrans from CEQA’s requirement that an EIR be prepared and circulated prior to approving the Project.

The Court found that section 103 does not expressly exempt Caltrans from preparing and circulating an EIR in compliance with CEQA. Caltrans implicitly conceded this point but asserted that Public Resources Code sections 21080.5 and 21080.9 provide such an exemption. The Court disagreed, noting that the plain language of section 103, along with its references to Public Resources Code sections 21080.5 and 21080.9, did not demonstrate intent to exempt Caltrans from preparing and circulating an EIR prior to Project approval. When read together, section 103 and Public Resources Code section 21080.9 provide that the Coastal Commission, not Caltrans, must comply with CEQA and prepare a substitute environmental document when considering the certification and approval of the PWP. By not expressly exempting Caltrans’ requirements under CEQA, while clearly doing so for the Coastal Commission, the Court found that the Legislature did not intend to exempt Caltrans from preparing and circulating the Project EIR prior to approval. While the PWP proposed improvements to the subject interchange, it did not include the Project as defined in its EIR, so the Coastal Commission’s certification of the PWP did not encompass the Project. Moreover, section 103 pertained to the PWP as a Coastal Commission regulatory program for a long range development plan and in no way addressed Caltrans’ EIR obligations. Thus, the onus was on Caltrans to engage in environmental review and circulation under CEQA.

The Court found that Petitioner’s equitable estoppel claim alleged sufficient facts to survive the demurrer. Equitable estoppel is based on the theory that a party which misleads another to their prejudice should be prevented from obtaining the benefits of their misconduct. It can result in a waiver of the ordinary statute of limitations applicable to a claim. The Court held that the Petitioner alleged sufficient facts (assumed to be true for the purposes of a demurrer) showing that Caltrans was estopped from relying on the 35-day statute of limitations for challenging the NOE. Petitioner adequately presented documentation supporting a finding that Caltrans knew that it would not circulate the FEIR before approving the Project and would file an NOE instead of an NOD. The Court found evidence supporting a reasonable inference that Caltrans made misleading statements regarding the circulation of the FEIR prior to Project approval and that Petitioner had a right to believe that Caltrans’ statements were intended to be acted on. The Court also found that Petitioner alleged sufficient facts to show ignorance of the misrepresentation and reliance upon Caltrans’s conduct to its injury.

Caltrans attempted to insulate itself from the application of equitable estoppel, which—when applied to governmental entities—requires the injustice prevented by upholding an estoppel to outweigh any impact on the public interest or policy. (See, e.g., Long Beach v. Mansell (1970) 3 Cal.3d 462, 496-497.) The Court was unpersuaded, stating Caltrans failed to “cite any public interest or policy that supports a position that a government agency should be allowed to make misrepresentations to the public regarding its intent to comply with CEQA in approving a project and then, in effect, secretly approve the project without compliance with CEQA and erroneously file an NOE for the project.” Accordingly, the Court held that Petitioner alleged sufficient facts to survive Caltrans’s demurrer and remanded to the trial court for further proceedings.

Key Point

Public agencies may not misrepresent their intended approach to environmental review and may not circumvent CEQA through reliance on exemptions applicable to a different agency.  An agency’s intentional misrepresentation of its environmental review process may support a determination that the agency is equitably estopped from relying on the statute of limitations as an affirmative defense.

Second District Court of Appeal Upholds Challenge to an MND for a Mixed-Use Project on Environmentally Sensitive Hillside and Award of Attorney Fees

Monday, April 6th, 2020

In Save the Agoura Cornell Knoll v. City of Agoura Hills (February 24, 2020) 2020 Cal. App. LEXIS 222, in a detailed decision, the Second District Court of Appeal affirmed the trial court’s judgement and concluded that a proposed mixed-use development project in Los Angeles County presented potentially significant impacts requiring the preparation of an EIR, not an MND.

In January 2017, the City of Agoura Hills’ (City’s) Planning Commission approved a development permit, conditional use permit, oak tree permit, and a tentative parcel map for the Cornerstone Mixed-Use Project (Project). The Project is an 8.2-acre mixed-use development including 35 residential apartment units, retail, restaurant, and office space. The majority of the site is located within the Agoura Village Specific Plan (AVSP), while the remaining portion is classified as a Significant Ecological Area. The site is currently an undeveloped hillside at the southeast corner of a confluence of roads within the City. Commercial retail uses are located to the west, northwest, and north of the property. The site includes native grasses and oaks, and contains three plant species considered rare, threatened, or endangered.

The California Native Plant Society (CNPS) appealed the Planning Commission’s decision. In March 2017, the Agoura Hills City Council held a public hearing on the appeal, approved the Project, and adopted the Project’s MND. The Council found, based on the record, there was no substantial evidence that the Project would have a significant effect on the environment because the MND incorporated feasible mitigation measures reducing potential environmental impacts to a less than significant level. On March 16, 2017, the City filed a notice of determination recording its approval and adoption of the MND. Following the City’s decision, Save the Agoura Cornell Knoll (STACK) filed a verified petition for writ of mandate alleging that the approval violated CEQA, planning and zoning law, and the City’s Oak Tree Ordinance. In an amended Petition, STACK joined CNPS as an additional petitioner (collectively, Petitioners).

The trial court found there was substantial evidence to support a fair argument that the Project may have significant environmental impacts on cultural resources, sensitive plant species, oak trees, and aesthetic resources and the proposed mitigation measures were inadequate to reduce impacts to a less than significant level. The trial court also found that the oak permit issued by the City violated a local ordinance prohibiting the removal of more than 10% of the total estimated oak tree canopy or root structure on a project site. Accordingly, the trial court entered judgement in favor of Petitioners and ordered the issuance of a peremptory writ of mandate directing the City to set aside its approval and the MND. In a post-judgement proceeding, the trial court awarded Petitioners attorneys fees totaling approximately $142,000.

Project owners and developers (Appellants) challenged the trial court’s decision and presented a variety of procedural and substantive claims related to standing, forfeiture, administrative exhaustion, cultural resources, sensitive plant species, and native oak trees. The Second District Court of Appeal rejected each allegation and affirmed the holding of the trial court in its entirety.

PROCEDURAL CHALLENGES

Appellants preliminarily argued that the trial court erred in considering evidence of administrative exhaustion because Petitioners forfeited the issue by failing to raise it in their opening brief. The Court rejected this argument because, in the first amended petition for writ of mandate (joining CNPS), Petitioners alleged that they had “performed all conditions precedent to filing this action, including exhaustion of all administrative remedies available to them.” Additionally, while Petitioners’ opening brief did not address the issue of exhaustion directly, it cited to public comments regarding the Project’s significant impacts and disputing the adequacy of the MND’s mitigation measures. Then, in their reply brief, Petitioners cited some of the same evidence to  demonstrate that they had exhausted administrative remedies. The Court held that Petitioners sufficiently addressed the issue in their reply and noted that the trial court gave the parties ample opportunity over the course of two hearings to argue whether administrative remedies had been exhausted. The Court held that under these circumstances, Petitioners’ failure to argue that they satisfied the exhaustion requirement in their opening brief did not forfeit the issue in subsequent briefs.

Throughout their substantive claims, Appellants argued that Petitioners had failed to exhaust administrative remedies during the administrative proceedings. In each instance, the Court held that administrative remedies had been exhausted through a combination of Petitioner and public comments presented during the administrative proceedings.

Appellants also argued, for the first time on appeal, that the entire action must be dismissed based on Petitioners’ lack of standing. According to Appellants, STACK failed to prove that either the organization or any of its members objected to the approval prior to the close of public hearing. They further alleged that CNPS was barred from serving as a substitute petitioner by the statute of limitations because it was not named as a petitioner until after the statute of limitations ran. While standing may be raised at any time—including for the first time on appeal—statute of limitations claims are forfeited if not properly asserted in a general demurrer or pleaded in an answer. Having failed to plead the statute of limitations in its answer or a demurrer, Appellants were barred from doing so on appeal, and there was no dispute that CNPS had standing. Because one petitioner had unequivocal standing under CEQA, jurisdiction was proper. The Court also noted that attempting to determine STACK’s standing would fall outside the proper scope of review because it would require consideration of factual issues not included in the record (such as when STACK was formed and whether any of its members objected to approval of the Project during the administrative proceedings).

CULTURAL RESOURCES

The Project site includes an identified prehistoric archaeological site of cultural significance to the Chumash Native American tribes. A 2011 peer review study determined the site was eligible for listing in the California Register of Historical Resources and recommended that the site be avoided or fully excavated and recovered. In adopting the MND, the City reviewed the site studies and concluded that, because it would involve extensive grading, Project impacts were likely significant and required mitigation. The MND set forth measures requiring site monitoring during ground-disturbing activities, notification processes if human remains were discovered on the site, and an excavation program if the site could not be avoided.

Appellants argued that the trial court erred in concluding that an EIR required consideration of the Project’s impacts on tribal cultural resources. The Court found that the MND’s measures improperly deferred mitigation of Project-related impacts and were insufficient to avoid or reduce those impacts to a less than significant level. While monitoring and work stoppages were contemplated, the MND failed to analyze whether the site could be avoided or specify performance criteria evaluating the feasibility of avoidance as an alternative to excavation. Prior studies failed to define the boundaries of the archaeological site, and the City made no attempts to define its boundaries in determining if the site could be avoided, nor did the record establish that it was infeasible for the City to make that determination in its initial review. Instead, the record contained substantial evidence to support a fair argument that avoiding the site was not feasible based on the Project’s footprint.

The excavation measure suffered from similar deficiencies as the avoidance measure. The Court found that the measure improperly deferred mitigation of a recovery plan and simply provided a generalized list of measures to be undertaken by a qualified archaeologist and Native American monitor. It failed to set performance standards or guidelines to ensure that the measures would actually be effective. The program called for the future preparation of a technical report including a mitigation monitoring and reporting plan, but it failed to explain how this plan would mitigate potentially significant effects on the site’s cultural resources. It also failed to specify criteria for evaluating the efficacy of the plan. There was no indication in the record that it was impractical or infeasible for the City to articulate specific performance criteria for the data recovery measures at the time of the Project approval.

Appellants alternatively argued that an EIR was not required because expert testimony opposing the decision did not have evidentiary value and that the City was entitled to rely on the expertise of its own consultants. The Court held that the testimony did have evidentiary value and that there was no disagreement between the Petitioners’ expert and the City’s consultant. Rather, both agreed that the archaeological site should be avoided and that an excavation recovery program should be conducted if avoidance was not feasible. The Petitioners’ expert simply opined that the excavation measure did not provide for an adequate data recovery program to mitigate the site’s loss. To the extent there was conflicting expert testimony, the Court held that neither the lead agency nor the court may “weigh” conflicting substantial evidence to determine if an EIR must be prepared. Since the record contained substantial evidence supporting a fair argument that the MND’s measures are inadequate to avoid or mitigate the impacts to the archaeological site to a less than significant level, an EIR was required.

IMPACTS TO SENSITIVE PLANT SPECIES

Appellants argued that the trial court erred because the MND included three measures reducing adverse Project impacts and offseting individual plant loss through restoration, preservation, and enhancement efforts. The Project site contains three special status species that may be impacted by grading activities and would be impacted by fuel modification activities (including mowing, pruning, and brush-clearing). In adopting the MND, the City concluded that the Project’s potential impacts were significant but mitigatable through species-specific preservation efforts and monitoring.

The preservation measures included species-specific surveys and on- and offsite restoration. Specifically, prior to issuing Project-related grading permits, a qualified plant ecologist would perform surveys for each species, and, if found during their blooming period, avoidance would be required unless the Project applicant provided “substantial documentation” that a minimum avoidance setback would be infeasible or would compromise the objectives of the AVSP. If avoidance was found to be infeasible, the ecologist would prepare a restoration plan and implement a five-year monitoring program focused on salvaging and replanting individual plants.

Petitioners alleged that these measures were inadequate due to improper deferral and the failure to set performance criteria ensuring effectiveness. The Court agreed with the Petitioners because the City relied on outdated site surveys and because the most recent survey was conducted during an ongoing drought. While the measure called for future surveys during the blooming period, the MND did not establish that it was infeasible for the City to perform the surveys prior to Project approval (which would allow for an accurate assessment of impacted plant populations). The Court also found that the salvaging and replanting plan was inadequate because substantial evidence demonstrated restoration may not effectively mitigate impacts to listed species due to transplant failure. The Court also held that the MND improperly deferred performance criteria formulation. The MND provided that the setback measure would be implemented unless “avoidance would not be feasible” or if a maintenance plan was implemented. However, the MND did not specify performance standards determining the feasibility of avoidance or whether the maintenance plan would be effective. While the measure set standards for measuring the success of the restoration plan, it did not provide for feasible alternatives if salvaging and replanting efforts failed. Thus, there was a fair argument that the measure may be ineffective in offsetting the loss of the listed plants at the Project site.

Appellants argued that the failure to perform updated surveys prior to Project approval did not reflect a deficiency in the MND. The Court recognized that an agency is not required to conduct all possible tests or exhaust all research methodologies to evaluate impacts, but clarified it must undertake additional testing “if initial testing is insufficient.” Here, the MND was based on a series of outdated surveys conducted during an ongoing drought. Thus, there was a fair argument that an updated survey would be necessary to formulate adequate mitigation measures.

Appellants asserted that restoration would be feasible with an active management and maintenance plan, but the Court found that replanting would only be successful as long as the transplants were actively maintained in perpetuity. While the MND required a five-year annual reporting and monitoring program, it did not provide for active transplant maintenance in perpetuity or alternative measures if the transplants failed.

An additional measure addressing impacts to a CNPS-designated rare plant species (as opposed to a federal-listed species) was similarly rejected because there was substantial evidence that transplanting efforts may fail, plus active management would only be provided for 5 years though required in perpetuity to reduce impacts to less than significant under the AVSP EIR. Additionally, no field surveys were required prior to or following the issuance of a grading permit, so it was unclear whether any future studies would be done to provide accurate information about the extent of the impacts. The Court rejected Appellants’ argument that the City’s decision was owed deference and found an EIR was required to analyze the actual impacts to rare plants.

The Court similarly rejected the efficacy of mitigation related to the fuel modification activities because there was a fair argument that clearing wildfire fuel is disruptive to the special status species’ ecosystem and likely to result in incidental take of and direct adverse effects to the species.

The Court next addressed the trial court’s conclusion that impacts to oak trees would be arguably significant, so an EIR was warranted. The Project would remove 29 of the 59 oaks on the Project site, while an additional six would experience encroachment within their protected zones. The Project would also remove approximately 21,000 square feetof scrub oak habitat. The MND required four oak trees to be planted to replace each tree approved for removal. To mitigate theloss of scrub oak habitat, at least 213 scrub oaks would need to be planted onsite. If City staff determined that this would be infeasible (which they likely would), an equivalent in-lieu fee would need to be paid into the City’s Oak Tree Mitigation Fund.

The Court found a fair argument that replacement mitigation would be inadequate because the remaining oaks would suffer a water deficit due to mass grading, which would disrupt and reduce subsurface water flow. Additionally, substantial evidence demonstrated that there have been no successful restorations of oak woodlands due to the extensive ecological network required to support an oak grove. The Court also found that the measure would improperly defer formulation of in-lieu fee programs as an alternative to onsite tree replacement because such programs must be evaluated under CEQA. The MND provided that in-lieu fee payments would be used by the City to acquire land or plant oak trees on another site; but it failed to specify the fees to be paid or the number of trees to be planted offsite, identify whether other sites were available for planting, or analyze the feasibility of an offsite tree replacement program. The Court concluded that it cannot be presumed that offsite oak planting through an in-lieu fee payment was a feasible alternative to the onsite replacement of oak trees in their native habitat.

Appellants also challenged the trial court’s ruling regarding aesthetics violations and violation of the City’s Oak Tree Ordinance. However, the Court found Appellants only made conclusory assertions lacking reasoned argument and held the issues were forfeited.

ATTORNEY FEES

Appellants challenged the trial court’s fee award based on a failure to provide notice of the CEQA action to the Attorney General in accordance with section 21167.7 and Code of Civil Procedure section 388, and based on an improper apportionment of liability on the real party in interest.

The Court noted that Petitioners had sent timely notice to the Attorney General upon filing their original petition and ruled their failure to strictly comply with the 10-day requirement in section 21167.7 and Code of Civil Procedure section 388 did not bar them from recovering attorney’s fees.  The Court explained that the statutes do not make recovery contingent upon timely notification. Rather, the trial court is tasked with exercising its equitable discretion in light of all relevant circumstances to determine whether private enforcement is sufficiently necessary to justify a fee award. The Court distinguished Schwartz v. City of Rosemead (1984) 155 Cal. App. 3d 547, which Appellants relied on, explaining that in that case the petitioner’s delay in notifying the Attorney General of the action precluded the Attorney General from intervening and possibly making private enforcement unnecessary. Here, the Attorney General had eleven months to review the original petition and a month and a half to review the amended petition before the writ hearing. The Court held that this provided “ample time” to the Attorney General to intervene, which it failed to do, making private enforcement of the action necessary.

Appellants asserted that, even if Petitioners were entitled to recover their attorney’s fees, the real party in interest and property owner should not be held jointly and severally liable for half of the fee award, particularly as an individual. The Court found that the fee allocation was properly apportioned because the property owner had a direct interest in the Project that gave rise to the action, he actively participated in the litigation, he was identified as the sole applicant in the notice of determination, and he had held himself out as the property owner and/or applicant throughout the application and administrative processes. 

KEY POINTS

When preparing an MND, the chosen mitigation measures must clearly reduce project impacts to a less than significant level. If substantial evidence in the record supports a fair argument that a project may have significant environmental impacts because mitigation measures may not be effective, an EIR will be required.

Attorneys fees under Code of Civil Procedure 1021.5 may still be recoverable even if the Petitioner fails to timely file the notice with the Attorney General as required by 21167.7.  The Court will examine the facts to determine whether the Attorney General had sufficient time to intervene and eliminate the need for private enforcement.