Another CEQA Victory for Conservation Groups in Tahoe, another GHG Mitigation Measure Held Inadequate

April 13th, 2022

By: Dustin Peterson



In League to Save Lake Tahoe Mt. Area Pres. Found. v. County of Placer (2022) 75 Cal.App.5th 63, the Third District Court of Appeal held that a land use specific plan and rezoning permit for commercial and residential development, including workforce housing, of forest land in the Martis Valley near the Northstar California Ski Resort (Project) violated CEQA because the EIR failed to analyze the Project’s impacts on Lake Tahoe’s water quality, improperly deferred a greenhouse gas (GHG) mitigation measure, failed to review a number of feasible traffic-related mitigation measures, and failed to discuss renewable energy options. The Court also reversed the trial court’s ruling that the EIR inadequately addressed the Project’s impacts on emergency evacuation plans, finding that the analysis conducted by the County of Placer (County) was supported by substantial evidence.

The Project at issue consisted of development on two parcels of undeveloped conifer forest separated by state route 267 (SR 267), a road which connects Truckee to the Lake Tahoe Basin (Basin). The western parcel was 1,052 acres and was zoned Timberland Production Zone (TPZ), subject to the requirements and procedures of the Timberland Productivity Act (Gov. Code, § 51133 (TPA)). The eastern parcel was 6,376 acres and was also zoned TPZ with 670 acres zoned for residential and commercial uses. After consulting with conservation groups, who identified the eastern parcel as a priority for conservation, the Project’s proponents filed an application with the County in 2013 to adopt a specific plan to amend the local community plan and to rezone to allow for up to 760 residential units and 6.6 acres of commercial uses on the western parcel in exchange for the dedication and rezone of the entire eastern parcel as a conservation easement. The County circulated a draft EIR (DEIR) in 2015, and certified the final EIR (FEIR) and approved the Project in 2016.

In separate petitions for writ of mandate, the League to Save Lake Tahoe and other groups (the League) and the California Clean Energy Committee (the Committee) both alleged that the County violated CEQA and the TPA in approving the Project. The trial court found for the County on all claims, except with regard to the EIR’s analysis of emergency evacuations for wildfires, which it found was inadequate. Both the League and the Committee’s appeals were consolidated into the present appeal, and the County along with Project proponents filed a cross-appeal.

Air and Water Quality in the Lake Tahoe Basin

On appeal, the League argued that the EIR did not describe the Basin’s existing air quality and the lake’s water quality as part of its description of the regional environmental setting. Specifically, the League alleged that the EIR should have included more information about the Project’s effect on in-Basin vehicle miles traveled (VMT) and the resulting air and water quality impacts. Even though the Project was not within the Basin, the Court found that the EIR was required to discuss the Basin’s existing air and water quality so that potential environmental impacts could be determined. With regard to the existing air quality in the Basin, the Court found that the County had not abused its discretion in omitting in-Basin air quality data that was determined to be unreliable. The Court did, however, hold that the EIR failed discuss the lake’s existing water quality, and that the FEIR’s discussion of how VMT affected water quality did not suffice because VMT is not a description of the physical environment. Nor did the EIR’s discussion of the lake’s Total Maximum Daily Load (TMDL), which is a program designed to restore Lake Tahoe’s deep-water transparency, adequately describe the existing setting, as it was merely referenced without any summary or analysis of its contents. As such, the Court found that the County abused its discretion because the EIR lacked a description of the lake’s existing physical water quality.

The League also argued that the EIR violated CEQA by not discussing the Project’s specific impacts on water and air quality in the Basin. The Tahoe Regional Planning Agency (TRPA), the agency charged with protecting the natural resources of the Basin, utilized a VMT significance threshold for projects within its jurisdiction to address air and water quality impacts to the lake resulting from traffic, such as automotive dust and emissions. It required total VMT in the Basin not to exceed an established number. Though the Project was outside of the Basin, both the League and TRPA urged the County to use TRPA’s VMT threshold to evaluate those impacts. The League argued that the EIR should have used this threshold despite the Project being outside of the Tahoe Basin, and thus outside TRPA’s jurisdiction, because the Project would create in-basin traffic. The County instead used a significance threshold developed by the Placer County Air Pollution Control District (Air District) to evaluate the significance of the Project’s air quality impacts. Using this threshold, the County determined the Project’s emissions would be cumulatively significant, but mitigation measures reduced these impacts to less than significant. Examining other EIRs for recent projects near the Basin, the County determined that the Project would not result in Basin VMT exceeding TRPA’s VMT threshold, and, without resolving whether the Project’s increase in VMT would cause specific significant air or water quality impacts individually or cumulatively within the Basin, determined that proposed fees paid to expand transit services would mitigate the Project’s impacts on VMT.

The Court acknowledged that CEQA requires a lead agency to consult and obtain comments from trustee agencies, like TRPA here, that have jurisdiction by law over natural resources a project may impact. The Court noted, however, that CEQA grants the lead agency discretion to accept or reject the threshold of significance standard that a trustee agency uses to determine an impact’s significance so long as the lead agency identifies the “areas of controversy” between the agencies per CEQA Guidelines section 15123(b)(2), (3). Here, the Court found that the EIR adequately responded to TRPA’s comments, explained why it did not employ TRPA’s threshold of significance, and disclosed the disagreement. Further, the Court found reliance on the Air District’s threshold to be supported by substantial evidence. Though the threshold was different than TRPA’s, nothing in the record indicated that it would not protect Basin resources, and the Tahoe Air Basin was within the Air District’s jurisdiction as well. As such, in contrast to Sierra Watch v. Placer County (2021) 69 Cal.App.5th 86 (Squaw Valley), in which an EIR was inadequate because it failed to provide a threshold of significance and did not determine whether the impact was significant, the Court here found that the EIR evaluated significance with an adequately supported significance threshold. Thus, the County did not abuse its discretion in applying the Air District’s threshold instead of TRPA’s VMT threshold to address impacts to the Basin’s air quality.

However, despite adequately evaluating air quality impacts from traffic, the Court found that the EIR did not address the impacts on water quality from traffic particulates. The Court observed that a VMT-based threshold, such as TRPA’s, would have addressed this. Though the EIR had referenced TMDL, it did not evaluate consistency with that standard, and as such, the mere reference did not suffice for this purpose. Nor did the County’s responses addressing the Project’s impacts on the VMT threshold after the FEIR was circulated cure the issue because this analysis was required to be in the EIR. Thus, the EIR’s analysis of water quality impacts had been inadequate.

GHG Mitigation

Both the League and the Committee challenged the DEIR’s climate analysis. The League argued that the County should have recirculated the EIR due to revisions made in the FEIR regarding the Project’s potential impacts on climate change. The changes related to GHG mitigation, and were largely made in response to the California Supreme Court’s decision in Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204 (Newhall Ranch) (See TLG’s coverage of Newhall Ranch here), which was decided while the DEIR was being circulated. In Newhall Ranch, the court held that an agency could not evaluate project-level GHG impacts using a statewide efficiency standard absent evidence substantiating a linkage between the new development and the statewide goal.

The DEIR evaluated GHG impacts using the Air District’s tier I and tier II operational GHG thresholds. Under tier I, a project’s emissions would be less than significant if it emitted less than 1,100 metric tons of carbon dioxide equivalent emissions. Tier II established a threshold similar to the one invalidated in Newhall Ranch, under which a project-level reduction from business-as-usual emissions of the amount called for in the statewide target would render the impact less than significant. The DEIR determined that the Project would significantly exceed the tier I threshold, but comply with the tier II reductions. Nonetheless, because the Project so significantly exceeded the tier I level and due to uncertainty over whether the Project would satisfy future, more stringent efficiency targets, the County determined that the Project’s GHG impacts would be significant and unavoidable, even with a mitigation measure requiring future development to comply with state emissions targets.

In light of the Newhall Ranch decision, the County made revisions in the FEIR to its GHG analysis. It determined that the Project’s GHG impacts would remain significant and unavoidable, in part because the Project still exceeded the tier I level. The League argued that the FEIR adopted a new threshold of significance by relying on the tier I efficiency standards instead of the original tier II standard, and that this change represented “significant new information” requiring recirculation of the DEIR. The Court disagreed, finding that the FEIR only clarified or amplified the DEIR’s discussion of GHG impacts and that both documents found that the Project’s emissions would exceed the tier I standards and would be significant and unavoidable. Further, contrary to the League’s assertion, the FEIR found that the Project would have lower GHG emissions than evaluated in the DEIR. As such, the Court found that substantial evidence supported the County’s conclusion not to recirculate the EIR.

The FEIR also revised a GHG mitigation measure. As revised, the measure required future development on the Project site to comply with any adopted state emissions targets that are formulated based on “a substantial linkage” between the development and statewide GHG reduction goals required in Newhall Ranch. Both the League and the Committee challenged the revised measure on the grounds that it deferred mitigation and was unenforceable because it relied on statewide GHG reduction targets that did not yet exist and might never be formulated. The County contended that the mitigation measure was enforceable because it applied to all future development on the Project site, and that these developments must undergo project-level analysis regardless of what specific GHG regulations are in place at the time. While the Court acknowledged that the measure made a good-faith effort to satisfy requirements necessary to defer development details, it found that because the measure relied on GHG targets that might never be formulated as the sole method to assess the significance of future projects, these measures impermissibly deferred mitigation of the GHG impacts. As such, the Court found that the mitigation measure violated CEQA.

Emergency Response and Evacuation Plans

The County and Project proponents cross-appealed the trial court’s ruling that the EIR failed to adequately address the Project’s impacts on emergency evacuations given the area’s designation as a “Very High” fire hazard severity zone. The League raised a number of questions regarding the County’s methodology in evaluating impacts related to wildfire evacuation and selecting the standard of significance. Specifically, the League highlighted numerous variables and potential scenarios not evaluated. For instance, a public comment raised the possibility that a vehicle might overturn on the evacuation route, blocking it, and that wind speeds, humidity, time of day and other variables not assessed in the EIR may affect wildfires. But the Court agreed with the County that analysis of any such individual variables or scenarios would be speculative and not necessarily representative. As such, because an agency is owed deference in the methodology it uses to evaluate an impact, the County’s election to focus on the time required for evacuation of the Project itself and the effect on overall evacuation times was consistent with CEQA.

The League also argued that the EIR inadequately evaluated whether SR 267 had adequate capacity for effective evacuation, pointing in part to the transportation chapter’s conclusion that traffic impacts to the route would be significant. However, citing to an unpublished portion of the Squaw Valley opinion, the Court rejected these arguments, finding that differing thresholds for traffic and evacuation impacts are not improper. The Court held that the EIR’s substantive conclusions about evacuation impacts to the route were adequately supported, including by a traffic study the Court found provided a reasonable assessment of the impacts. As such, the Court concluded that substantial evidence supported the EIR’s conclusion that the Project’s impacts on evacuation routes would be less than significant.

Cumulative Impacts to Forest Resources

The Committee also contended that the EIR failed to properly analyze the Project’s cumulative impacts on forest resources because, among other things, the EIR’s description of the environmental setting did not discuss tree mortality due to drought and bark beetle infestations nor the effect of tree loss due to climate change.

The EIR’s analysis relied on the fact that the Project’s conversion of 651.5 acres of forest land was within the conversion of 13,600 acres found to be less than significant in the County’s 1994 General Plan EIR, and because the Project was within the General Plan EIR’s projection, it too would therefore have a less than significant impact to the forest. Further, the County maintained that estimating climate-related forest loss due to drought, wildfire, or bark beetle would be speculative.

The Committee argued that the 1986 baseline for the 1994 EIR’s analysis was outdated and inaccurate because it did not take into account subsequent changes that have occurred. Noting that CEQA does not require a lead agency to speculate, the Court concluded that because the County could not reasonably determine the extent of tree mortality caused by drought and infestation, the County acted within its discretion to rely on the 1994 General Plan’s projection and the historical compliance with that projection in assessing the Project’s cumulative impacts.  Further, the Court acknowledged that the impacts of climate change are not “other projects” to be considered in a cumulative impacts analysis. The Court held that by evaluating the Project’s GHG impacts in the GHG analysis, the EIR addressed the Project’s contribution to adverse impacts on forest resources due to climate change, and no further analysis of this issue was required in the context of cumulative impacts on forest resources. As such, the County did not abuse its discretion by not including the GHG analysis in its discussion of impacts on forest resources.

Mitigation of Traffic Impacts

To address traffic congestion impacts to SR 267, a mitigation measure in the EIR required payment of a traffic impact fee to fund, among other things, widening the highway, though the impact was found to remain significant and unavoidable. The Committee argued that the EIR failed to incorporate additional measures raised by commenters that could feasibly have reduced this impact, including transit stop upgrades, shuttle service, recruiting transit riders with marketing, and covered bicycle parking. The County responded that the Project did “more than its fair share” to address impacts on transit service, which the FEIR found to be less than significant.

The Court observed that the issue was not whether the Project had done its “fair share” but whether substantial evidence supported the EIR’s conclusion that no other feasible mitigation would reduce the Project’s traffic impacts. Because commenters had requested that the EIR discuss additional traffic mitigation measures to address the impact found to be significant and unavoidable, and the EIR did not, its conclusion that no feasible mitigation was available lacked sufficient support. That the EIR included mitigation for less than significant impacts on transit services did not alter this conclusion.

The Committee also contended that the EIR failed to discuss the environmental impacts of widening SR 267, which Project mitigation would help fund. However, the Court found that the plans to improve SR 267 had been in place since 2003, known to the public and decisionmakers, and had been discussed in a prior EIR. The Court found nothing to indicate changes since that analysis, and nothing further that could be added by additional environmental review until Caltrans entered the design phase for implementing the road improvements. It also found that the EIR’s failure to incorporate the earlier EIR by reference, provide information about where it could be examined, and expressly state that it was tiering from the earlier EIR were “merely technical omissions” and not prejudicial.

Energy Consumption Analysis

The Committee argued that the EIR failed to include a discussion of whether the Project could increase its reliance on renewable energy sources to meet energy demand in its analysis of whether the Project would have significant energy impacts in the EIR. The County responded that such analysis was unnecessary where, as here, energy impacts are found to be less than significant. Relying on California Clean Energy Com. V. City of Woodland (2014) 255 Cal.App.4th 173, 209, 213 (City of Woodland) (see TLG’s coverage of City of Woodland here), the Court agreed with the Committee that the EIR had been required to discuss renewable energy options. Though the County maintained that City of Woodland’s holding derived from energy use being a potentially significant impact in that case, the Court here found the distinction to be unavailing, implying that CEQA requires such an analysis for all projects.

The Timberland Productivity Act (TPA)

Finally, the League contended that the rezoning of the western parcel of the Project from TPZ (Timberland Protection Zone) to a zone permitting commercial and residential development violated the TPA. Similar to the Williamson Act, the TPA restricts land use in certain timber production zones for a minimum of 10 years in exchange for the benefit of lower tax valuation for the underlying property. In order for the portions of the Project zoned TPZ to be immediately rezoned, the County was required to show that (1) immediate rezoning would be in the public interest, and (2) that the rezoning was not inconsistent with section 3(j) of Article XIII of the California Constitution (section 3(j)), which “encourages the continued use of timberland for the production of trees for timber products.”

The County had found that the rezoning was not inconsistent with section 3(j) because the Project would essentially exchange the portion of the eastern parcel that was zoned for commercial and residential uses with the TPZ zoned area in the western parcel. Further, the rezoning was in the public interest because, by rezoning the eastern portion TPZ and dedicating the land to a conservation easement, the rezoning would create both environmental and economic benefits to the public. Despite the League’s contention that the County unlawfully rezoned the Project under the TPA because, among other things, the County impermissibly relied on rezoning the eastern parcel to justify the rezone of the western parcel and there was no evidence supporting the findings that rezoning would address residential demands in the area, the Court found the League’s contentions to be without merit and upheld the City’s findings of compliance with the TPA and section 3(j).

Key Points:

  • An EIR must summarize and meaningfully analyze the data it relies on.
  • Measures relying on future standards that may never be developed improperly defer mitigation and are impermissibly noncommittal.
  • Courts defer to the methodological decisions in an EIR, and speculation about all possible scenarios is unnecessary where adequate analysis is presented.
  • Though an EIR must evaluate cumulative impacts in the context of the foreseeable impacts of other projects, this cumulative analysis does not have to take account of environmental changes that will occur due to climate change; a project’s cumulative contribution to cumulative climate change impacts is properly addressed as part of an EIR’s air quality or GHG analysis.
  • Suggested feasible mitigation must be considered for significant and unavoidable impacts, even if similar measures are adopted for other impacts.
  • An EIR should evaluate how renewable energy can be utilized, regardless of whether energy impacts are found to be potentially significant.
  • An EIR should not restrict its analysis to artificial or jurisdictional boundaries; the geographic scope of an analysis must be supported by substantial evidence.