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Second Appellate District Upholds PG&E Lease Extension as Categorically Exempt from CEQA, Finds Unusual Circumstance Exception Inapplicable to Extension of Nuclear Power Plant Lease

Tuesday, June 19th, 2018

Ocean intake water flow can be seen at the Diablo Canyon Power Plant. (PG&E)

The Second Appellate District, in World Business Academy v. California State Lands Commission (2018) 24 Cal. App. 5th 476, determined that extending a power plant’s lease constituted a categorically exempt project under CEQA and the record was not sufficient to support an “unusual circumstances” exception to the exemption.

Diablo Canyon Power Plant is a nuclear power plant set to close in 2024 and 2025 owned and operated by PG&E in San Luis Obispo County. The plant’s cooling system draws in seawater plus incidental aquatic plants and animals from state-owned tidal and submerged lands then expels heated water back into the sea. The leases for this system were to expire in 2018 and 2019, five years before the plant closes.

PG&E submitted a single lease renewal application to the California State Lands Commission (Commission) to replace the expiring leases. A staff report confirmed the project would not require additional environmental review under the existing facility exemption unless it was found to be an unusual circumstance, an exception to exemption. After weighing the potential seismic and environmental impacts, Commission found that the state-land lease renewal would not have a significant effect on the environment due to unusual circumstances, moved to support the staff report, and issued a notice of exemption for the lease renewal.

Plaintiffs, World Business Academy, filed suit in Los Angeles County Superior Court alleging Commission’s actions violated CEQA and the public trust doctrine where the lease approval would irreparably injure and deplete the marine ecosystem surrounding the plant. The trial court held the lease replacement was within the existing facilities exemption to CEQA and the unusual circumstances exception did not apply.

Reviewing de novo, the Second District Court of Appeal agreed with the trial court, affirming Commission’s lease approval under the existing facility exemption. Further, there was no merit to arguments for an unusual circumstance exception to the CEQA exemption nor was there a violation of the public trust doctrine.

The Court determined the power plant was exempt from CEQA review as an existing facility. Appellants argued unlike other existing utility structures, nuclear power plants cannot be categorically exempt from CEQA because of the significant environmental impacts they have by their de facto operation. Further, the legislative history of the exemption indicated the meaning of “provide electric power” implicated structures which disseminate power, not power generating facilities themselves. The Court disagreed, under the plain meaning of the statute “provide” reasonably included a power plant.

The Court rejected a related argument that Commission lacked the authority to include nuclear power plants under the exemption due to their operational environmental impacts. The Court found minor alterations to, continued operation of, and leasing pre-CEQA facilities resulting in negligible or no expansion of use are unlikely to cause a significant adverse change in environmental conditions. Further, the class of projects at issue in the existing facilities exemption are not only nuclear power plants—rather, the exemption is applied to existing facilities of all types. The Court concluded that the Commission’s evaluation of the lease extension, while brief, was sufficient to demonstrate that the lease extension would maintain the status quo at the existing facility, not expand its operations.

The Court then looked to the unusual circumstances exception. Although Commission applied a procedurally lacking standard in showing that the project did not meet the exception, this was not fatal to their determination. Commission relied on a fair argument standard to assess if there was a reasonable possibility of a significant environmental effect of extending the lease, without first concluding that the project presented an unusual circumstance. The Court relied on North Coast Rivers Alliance v. Westlands Water District (2014) 227 Cal. App. 4th 832, to find even if the lease approval presented an unusual circumstance, Commission properly applied the fair argument standard in considering the possible effect on the environment.

Turning to the substantive portion of the unusual circumstance analysis, the Court found the project did not have a potentially significant environmental effect based on its size and location. Commission acted properly by considering the baseline for the site its pre-CEQA operational levels. Appellants failed to point to specific evidence supporting the claim that aquatic life would be significantly decreased past the initial operational level of the plant or certain risks – seismic activity, terrorist threats, “embrittleing” and others—would occur. Appellants’ claim that the plant constituted a significant environmental effect because it was the last one of its kind in the state was irrelevant, and dismissed appellant’s ad hominem attack against PG&E which alleged criminal conduct outside of the included record.

Finally, the Court held Commission’s staff report explicitly analyzed the public trust doctrine and the plant’s shutdown in 2024 and 2025 would adequately regulate the impacts to marine life associated with the cooling system. The Court concluded the Commission’s factual inquiry was sufficient, and that appellant’s contentions that the doctrine required factual evaluation vis-a-vie a CEQA analysis lacked merit.

Accordingly, the Court affirmed the judgement of the trial court.

Key Point:

The existing facilities exemption allows pre-CEQA power plants (regardless of power source) undergoing non-significant changes to avoid additional environmental review. The proper baseline to determine if a change is significant is not established by present-day or forecasted analysis, rather, by the environmental impact the facility had when it began operations.

Second Appellate District Calls Settlement Agreement Part of “Project” for CEQA Consideration In Line with Historically Broad “Project” Definition

Thursday, June 14th, 2018

Land erosion is visible under steps to Malibu’s Broad Beach. (Melanie Wynne)

In County of Ventura v. City of Moorpark (2018) 24 Cal. App. 5th 377, the Second Appellate District upheld a CEQA exemption applied to a project undertaken by the state-created Broad Beach Geologic Hazard Abatement District (BBGHAD). Notably, the Court held that the “project” for CEQA consideration, as approved by the California Coastal Commission and State Lands Commission, included both plans to restore the beach and a settlement agreement detailing project truck’s traffic restrictions. The Court held that the settlement agreement restrictions were not preempted by state law, and do not constitute an attempted extraterritorial regulation. However, the abdication of BBGHAD’s police power in portions of the agreement was improper therefore voiding that part of the agreement.

The state created BBGHAD to address beach and sand dune erosion at Malibu’s Broad Beach. Here, BBGHAD was to restore and restock sand at the beach. The project would involve shipments of 300,000 cubic yards of sand, four subsequent deposits of equal size at five year intervals, and additional shipments of 75,000 cubic yards on an as-needed basis. The sand was to be collected from quarries 30-40 miles away from Broad Beach and transported by trucks to the beach. The initial deposit alone was estimated to require 44,000 one-way truck trips. Possible truck routes from the quarries to the beach either required traveling through the City of Moorpark or on roads adjacent to the community. In the project’s planning stages, Moorpark officials expressed concern that hauling sand on these routes would negatively impact residents, and eventually created a settlement agreement with BBGHAD. BBGHAD agreed to specific haul routes, truck staging requirements, changes in route in response to settlement-defined road emergencies, and made concessions to only change the tenants of the agreement upon mutual assent. Thereafter, the Coastal Commission approved a coastal development permit for the beach restoration project, including the incorporated settlement agreement. The County of Ventura challenged the project in a petition for writ of mandate, alleging that the settlement’s incorporation is preempted by state law, constitutes an illegal attempt by Moorpark to regulate traffic outside of their city’s limits, and represents an abdication of BBGHAD’s state-granted police power.

The trial court found that the project was statutorily exempt from CEQA, held that the settlement agreement was not preempted by the state’s Vehicle Code, and found that the settlement was not an improper attempt by Moorpark to regulate traffic outside city limits. The trial court found that BBGHAD improperly contracted away its ability to break the settlement, struck the settlement’s mutual assent provision, and held that BBGHAD must be able to modify the agreement in response to changed circumstances.

The Second Appellate District affirmed the trial court’s ruling. On appeal, in addition to its original claims, Ventura contended that the settlement agreement is an action distinct from the Broad Beach restoration project, thus beyond the protection of the exemption and subject to CEQA review. The Court disagreed, and found that the settlement agreement between Moorpark and BBGHAD was part of the whole beach restoration effort. The Court stated that when two activities are a coordinated endeavor to obtain an objective or are otherwise related to each other, they constitute a single project for purposes of CEQA. Only when the second activity is independent of and not a contemplated future part of the first activity may the two activities may be reviewed separately.

Turning to the preemption argument, the Court found Vehicle Code section 21 was not implicated in Moorpark’s settlement agreement. Vehicle Code section 21 prohibits local authorities from enacting resolutions or ordinances which affect state traffic restrictions. The Court found that because the agreement did not involve an ordinance or resolution (rather, it was the City acting under its contracting power), it was not preempted by Vehicle Code section 21. The Court further found that the agreement merely dictated the routes BBGHAD’s contractors and subcontractors must use when delivering on behalf of the project because it did not amount to a physical barrier which would redirect traffic, did not close roads, and did not restrict non-project related hauling.

The Court then addressed the extraterritorial regulation contentions. Moorpark was within its contracting rights to further its implied necessity function of preventing public nuisances on their roads vis-a-vie the thousands of sand shipments. Additionally, the Court found the traffic restrictions on BBGHAD shipments were valid, as they only affected activity within the city limits.

Turning to the issue of infringements on BBGHAD’s police power, the Court found that as an entity of the state, BBGHAD was entitled to exercise a portion of the state’s police power. However, BBGHAD erred in part of the settlement agreement by contracting away its right to exercise its police power in the future. The agreement, in part, bound BBGHAD to surrender its discretion to haul routes in the future unless mutual assent was achieved between BBGHAD and the City. The Court found that this grant of veto power infringed upon the state’s police power therefore was invalid. In examining if this error was sufficient to render the entire agreement void, the Court weighed the agreement’s impact on the public and the expressed intentions of the parties, and determined that the aspects of the agreement which infringed on BBGHAD’s state-granted police power were severable from the rest of the agreement. Accordingly, the Court upheld the agreement in part and struck the agreement in part.

Key Point:

While incorporated settlement agreements with local authorities in project planning is allowable as part of one CEQA-defined “project”, when contracting with state entities, it is important to not infringe upon state police powers through the creation of modification clauses requiring assent from all parties.

First Appellate District Denies Initial Study Noise Level Challenge to Transitional Housing Project Based on Non-Expert Analysis

Monday, June 4th, 2018

Construction crews begin the building transformation from hospital to youth center. (Bruce Robinson, KRCB)

In Jensen v. City of Santa Rosa (2018) 23 Cal. App. 5th 877, the First Appellate District struck down a writ challenging repurposing of a hospital into a youth center and transitional housing. The Court ruled against claims the project traffic noise and recreational activities would constitute a source of noise significant enough to warrant the creation of an EIR where the two unrelated noise studies appellant relied on lacked merit. These reports constituted non-expert analysis and any conjectures from them were improperly supported. For these reasons, there was no substantial evidence supporting a fair argument there would be a significant noise impact meriting preparation of an EIR.

The project at issue, the Dream Center, was intended to repurpose a defunct hospital and create housing for 18-24 year old runaways, homeless youth, and former foster youth as well as those who have been abused, are unable to afford housing, or are unable to find employment.

Project leaders filed applications for a CUP, rezoning, and design review to implement plans for the Center. The City of Santa Rosa prepared a draft Initial Study/Negative Declaration. When creating the Dream Center’s Initial Study/Negative Declaration, project planners contracted with Fred Svinth of Illingworth & Rodkin to conduct a noise analysis of the site. Svinth’s study concluded, after taking independent measurements, that the project would not constitute a significant noise impact. The Santa Rosa Planning Commission reviewed the application and Svinth study and found the project would have no significant effect on the environment. The Council unanimously passed resolutions adopting and approving the project.

Thereafter, neighbors of the project (Petitioners) appealed the Commission’s approval to the Santa Rosa City Council, alleging that the project required an EIR because there would be potentially significant operational noise from the south staff parking lot and recreational activity space with a half basketball court, community garden, and pottery throwing space. However, per project plans and conditions for approval, Dream Center residents and delivery-persons were limited to use the main northern parking lot and recreation hours, specifically use of the basketball court, were limited. Petitioner’s challenge relied on a separate noise study performed by Svinth at a nearby convenience store to bolster their claim the project would constitute a significant noise impact.

City Council unanimously denied the appeal then approved the project. In response, Petitioners filed a writ of administrative mandate in the Sonoma County Superior Court, which was heard and denied. Petitioners appealed and the First District Court of Appeal upheld the denial of the writ and struck down the comparison of the Initial Study’s analysis to the separate Svinth study.

Petitioners urged the First Appellate District to adopt and apply the unrelated Svinth study’s methodology and specific noise values to the Dream Center site. Petitioners claimed that if the methodology and specific noise values from the unrelated Svinth study were applied to the Dream Center site, the project would have noise impacts significant enough to warrant the creation of an EIR. Petitioners conducted a non-expert qualitative analysis of the convenience store and Dream Center Svinth studies and concluded the “alternative” levels recorded at the convenience store were an acceptable means of analyzing noise impacts.

The Court struck down this comparison, stating Petitioner’s calculations were essentially opinions rendered by non-experts, and therefore could not be used. In addressing the parking lot claim, the Court stated Petitioner’s arguments rested on supposition and hypothesis, rather than fact, expert opinion, or reasonable inference. The Court clarified the noise impacts could not be reasonably shown to be significant because parking in the northern lot was more than adequate to accommodate use of the site and residents would not be allowed to park in the southern lot. In addressing the recreational use noise claim, the Court reiterated Petitioner’s calculations lacked scientific credibility, and upheld the independent noise study Svinth provided for the site.

Key Point:

When attempting to rebut the validity of an independent noise analysis for a project’s Initial Study, is it imperative to use expert analysis. Additionally, comparison of two unrelated Initial Study results (even if the sites are nearby) will likely fall short of Court-accepted scientific evidence.

Fourth District Court of Appeal Finds Minor Telecommunications Facility on Dedicated Park Land Is Not An “Unusual Circumstance” Exception to CEQA Small Facility Exemption

Monday, May 21st, 2018

A faux eucalyptus tree cell tower stands next to a live evergreen  (Annette LeMay Burke)

Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal. App. 5th 338 centers on a dispute involving the interpretation of a portion of the San Diego City Charter (Charter 55), which requires that real property dedicated in perpetuity for park purposes may not be used for any other purpose without authorization or ratification by vote of two-thirds of qualified City of San Diego voters. The Fourth District Court of Appeal found that an approved project within a park was properly approved by the City without deferring to voters.

In the San Diego community of Ranch Peñasquitos, an 8.5-acre park was dedicated in perpetuity for recreational purposes in accordance with Charter 55. Thereafter, Verizon filed an application to build a wireless telecommunications facility including a 35-foot tall unmanned cell tower disguised as a faux eucalyptus tree and a 250-square-foot landscaped equipment enclosure with a trellis roof on the outskirts of the park. The San Diego Planning Board voted to approve the project, and determined that its location on the periphery of the park qualified it for an exemption from CEQA. Don’t Cell Our Parks (DCOP) appealed the CEQA exemption, then filed a writ of mandamus and complaint seeking injunctive and declaratory relief. DCOP argued that placing the facility within the park was not a permissible park or recreational use under the plain language of Charter 55. The trial court found that the project was properly approved, was exempt from CEQA, and found that no unusual circumstances established an exception to the CEQA exemption.

In affirming the judgement of the trial court, the Fourth District Court of Appeal addressed two issues: whether Charter 55 prohibited the construction of the project within the park, and if the project was exempt from CEQA.

The Court first focused on the language and context of Charter 55, which delineates that real property dedicated without the formality of an ordinance or statute expressly dedicating the land may be used for any public purpose deemed necessary by the Council. Voter approval is necessary only if a project changes the use or purpose of a dedicated park. The Court stated that deference should be given to the City to determine whether or not an addition to a dedicated park is a changed use. The Court reasoned that this deference is appropriate because dedicated parks often start as bare pieces of land, and the City is subsequently charged with exercising its management and control authority to upkeep the land and determine whether proposed additions would change its use. The Court determined if the record supports the City’s conclusion that a project does not change the use or purpose of a park, the project can be built without the approval of voters.

After an examination of the record, the Court held the project did not change the use or nature of the park. The visual and aesthetic impacts would be minimal—the facility’s faux-tree would be installed in an existing stand of trees of similar and greater height, and the corresponding structure would be shrouded by native plants set off from the pedestrian interface. The Court also stated that the addition of the wireless facility would “clearly benefit park visitors” by providing greater access to 911 services and recreational wireless access. Without a supported contrary conclusion that the project would disrupt or interfere with the purposes of the park, the Court concluded that deference to the City’s approval of the project (and circumvention of the voting provision of Charter 55) was proper.

Turning to the second issue, the Court rejected DCOP’s argument that the project was erroneously claimed a Class 3 exemption because it did not fit within the meaning or use of the exemption as a matter of law, because the unusual circumstances exemption applied, and because the placement of the project in a dedicated park precluded use of a categorical exemption.

First, the Court found that the project qualified for the CEQA Class 3 limited, small facility exemption, despite a lack of applicability to the exemption’s established examples. The Court noted that exemption criteria were not exhaustive, and that the exemption was intended to apply to a small facilities like the project.

Second, the Court addressed CEQA Guidelines § 15300.2 subd. (c), which states that a categorical exemption cannot be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to “unusual circumstances.” In determining if the project constituted an unusual circumstance, the Court relied on the two means of analysis established by Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086. Under the first analysis, a challenger must prove both unusual circumstances (through a showing that some feature of the project distinguishes it from other features in the exempt class) and a significant environmental effect due to those circumstances. Under the alternative analysis, a challenger must establish an unusual circumstance with evidence that the project will have a significant environmental effect.

Under the first Berkeley Hillside analysis, the Court rejected DCOP’s argument that the project’s location within the dedicated park constituted an unusual feature or circumstance distinguishing it from other features in the exempt class. Although the Guidelines do not define an “unusual circumstance,” the Court found that the City had submitted evidence sufficient to show that the project was not atypical, many cellular towers and reception boxes had been challenged and permitted. The Court looked to the biological resource report the City created for the project, the fact that the project site was mostly disturbed habitat and did not contain environmentally sensitive lands, and evidence that at least 37 other similar facilities existed in dedicated parks. The Court also found that DCOP had failed to demonstrate features which would have rendered the project unusual and did not establish a reasonable possibility that the project would have a significant effect on the environment, use of the park, or aesthetics.

Under the second Berkeley Hillside alternative, the Court pointed to the evidence presented to rebut the first alternative to establish that DCOP had not established an unusual circumstance with evidence that the project would have a significant environmental effect.

The Court finally rejected DCOP’s argument that the location exception applied to the project.  That exception applies where a project “may impact [] an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” (CEQA Guidelines, § 15300.2, subd. (a).)  DCOP presented no evidence that the park was “designated” as an “environmental resource of hazardous or critical concern” by any federal, state or local agency.

Key Point:

The list of project types set forth in the Class 3 exemption is not exhaustive.  In evaluating whether a project is covered by the exemption, a court may consider whether the project is similar in size or scope to other project types listed in the exemption.

Second District Court of Appeal Finds Secondary Parking Impacts Exempt from CEQA Review, Encourages Project Area Contextualization

Wednesday, March 28th, 2018

The Covina Metrolink station a short distance from the project site

In Covina Residents for Responsible Development v. City of Covina, 2018 Cal. App. 5th 712, the Second District Court of Appeal determined the judicial history and development of Public Resources Code section 21099 settles the apparent conflict between San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656 and Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (2013) 215 Cal.App.4th 1013, and clarified what constitutes adequate environmental review and project parking allocation under CEQA.

In 2012, project applicants submitted a proposal to the City of Covina for the construction of a mixed-used urban residential infill project near the Covina Metrolink commuter rail station. The project underwent numerous revisions and was repeatedly challenged for its alleged impacts on parking in and around the project site by appellants, Covina Residents for Responsible Development (CRRD). Post-project approval, CRRD sued the City for approving the project without preparing an EIR, for tiering the MND from a General Plan EIR, and for violating the Subdivision Map Act by failing to make the necessary findings for approval of the project. CRRD’s principal CEQA challenge focused on the project’s allegedly inadequate parking.

The trial court denied the petition, finding (a) no substantial evidence to support CRRD’s claim the parking shortage would result in environmental impacts; (b) any parking impacts from the project were exempt from environmental review under section 21099; (c) the City properly tiered its environmental review from the General Plan EIR; and (d) the City did not violate the Subdivision Map Act. The Second Circuit affirmed the trial court.

The Court first addressed whether the alleged parking impacts are exempt from environmental review under Public Resources Code section 21099 subdivision (d)(1), which provides, “Aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” The Court examined the scope and purpose of section 21099 by analyzing San Franciscans and Taxpayers; in which opposing outcomes were found where it was alleged that projects’ parking-related “secondary impacts” could cause an environmental effect. The Court found the cases, while facially appearing diametric in conclusion, are consistent with each other and section 21099 by contextualizing not only the effect on parking a project has by virtue of its physical scope, but by the area in which a project is planned. In Taxpayers, the Court considered a suburban project and found the “secondary impacts” of the parking shortage significantly affected the narrow, canyon road environment. In San Franciscans, the Court considered an urban project and found the “secondary impacts” of the parking shortage, close to numerous public transit options, did not significantly affect the environment.

The Second Circuit clarified that, while secondary parking impacts caused by ensuing traffic congestion must be addressed, parking shortfalls relative to demand are not considered significant environmental impacts in urban contexts. In order to challenge a project’s allegedly inadequate parking provisions, petitioners must do so by submitting evidence of resultant secondary environmental impacts to the surrounding area—not by simply raising concerns that the project would result in a lack of parking spaces nearby. The Court concluded CRRD failed to make such a showing. The Court also found, when the secondary effects of parking do not impact environmental quality of the area of the project, parking shortage claims are exempt from CEQA under section 21099.

The Court also dismissed the allegation the General Plan EIR was inconsistent with the Subdivision Map Act. The Court held the City’s parking analysis did not “cherry-pick” certain circulation elements of the General Plan while ignoring others, the project was consistent with the City’s General Plan traffic provisions encouraging biking and pedestrian use. As a “higher density, mixed-use residential, transit-oriented project, the project inherently encourages alternative travel modes”, and in reviewing changes to the subdivision map, the City was right to find the project’s inherent promotion of walking and bicycling was sufficient to comport with the General Plan’s goal of offering a balanced circulation system offering multiple travel options.

Key Point:

Public Resources Code section 21099 subdivision (d)(1) exempts project parking impacts from CEQA review when the project is contextualized in an urban infill setting. Practitioners seeking to apply the Taxpayer standard in non-urban areas must take the project’s surroundings into account and make a showing that the project’s parking impacts would constitute a significant secondary environmental impact and may not simply assert concerns that the project would result in a lack of parking spaces.

Additionally, practitioners seeking to challenge the adequacy of a project’s environmental review via inconsistency between a tiered MND from a General Plan EIR and the Subdivision Map Act should take care to recognize the inherent impacts of the project. For example, if a high density transit-oriented residential project is built as infill near a Metrolink station, it likely will be found by a court to constitute a project with encourages alternative travel modes (even if its environmental documents do not explicitly state as such!).

First District Court of Appeal Finds Project Description, Downstream GHG Emissions Analysis, and Existing Train Hazards Analysis Sufficient, Upholds Oil Recovery Project RFEIR

Tuesday, March 20th, 2018

An oil refinery against the evening sky (Michael Mep)

In Rodeo Citizens Association v. County of Contra Costa (2018) 22 Cal. App. 5th 214, the First District Court of Appeal held the project description, greenhouse gas (GHG) emissions analysis, and hazard impacts for upgrades to an oil refinery project were sufficient under CEQA therefore, Contra Costa County (County) was correct to approve the project in these areas. Despite this, the trial Court writ of mandate setting aside the project remained intact until certain air quality analyses were complete, issues not addressed by the Court here.

Phillips 66 Company (Phillips) applied for a permit to upgrade the facility and operations at an existing oil refinery propane recovery project. Specifically, the project would add and modify existing facilities to enable Phillips to recover butane and propane from its refinery and ship it by rail. After completing draft circulation and public comment periods, the County approved a recirculated final EIR (RFEIR).

Rodeo Citizens Association (Petitioners) challenged the approval on the grounds the project description was inaccurate, the analysis of cumulative impacts, air quality and GHG impacts were insufficient, and the RFEIR overlooked the increased risk of accidents from train derailments or explosions from project completion.

Plaintiffs allege approval was improper under the standard articulated in San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, because the project description was not “accurate, stable, and finite” where Phillips executives had made public comments about future projects whose impacts would run seemingly contrary to the EIR. The Court held even if a project applicant’s statements indicate an anticipated or potential future change to a site, petitioners must also present evidence showing a connection between the project and any intended change. None of the statements established the future projects were dependent on a change or intended change in the proposed project.

Accordingly, the Opinion deferred to the lead agency’s description of the project, distinguished the facts of the case from those of Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, and concluded that petitioners failed to provide evidence that the lead agency’s approval of the project inappropriately approved any potential future changes not included in the project description. Therefore so long as the description was not “inadequate or misleading” it was sufficient.

Next, the Court found the GHG considerations detailed in the RFEIR were “reasonable” under the circumstances; environmental review documents may find a project’s contribution to GHG emissions will be less than cumulatively considerable if there is sufficient showing the project is part of the state’s solution to climate change. While Petitioners claimed the EIR failed to consider GHG emissions resulting from the combustion of project-captured propane and butane sold to downstream users, such a claim misconstrued the situation. Phillips considered downstream users in the RFEIR but was unable to definitively pinpoint the buyers’ uses. Indeed, the Court highlighted, propane and butane are low-GHG emitting gasolines mostly used in place of high-GHG emitting gasolines therefore saving in overall GHG emissions. An agency’s inability to quantify all down-stream emissions from project-related activities does not compel the agency to conclude that the project creates a significant and detrimental contribution to GHG impacts. Any possible negative environmental impacts were too speculative for evaluation; investigating these possibilities were beyond County and applicant control.

Finally, the Court looked to Petitioners’ allegations that the RFEIR overlooked the increased risk of accidents from train derailments or explosions as a result of the project. In the RFEIR Phillips properly addressed significance of the project’s impacts without reference to existing risks posed by operation of the refinery, reasonably determined that the potential impacts were less than significant, and underscored that comparative worst case scenario analyses may reasonably consider only those impacts that have moderate or high consequence of occurrence.

Key Point:

Project descriptions are sufficient where not misleading or inaccurate. Greenhouse gas emission considerations under CEQA may be sufficient where the project emissions are downstream and evidence supports the project aligns with statewide solutions to climate change.

Sixth District Court of Appeal Upholds CEQA Exception to Small Facility—Utility Extension Exemption Absent Petitioner’s Burden of Evidence for Additional Installations on Existing Rural Utility Poles

Friday, March 9th, 2018

A distributed antenna system for mobile data communications is secured to a tower. (CBS)

In Aptos Residents Association v. County of Santa Cruz (2018) 20 Cal. App. 5th 1039, the Sixth District Court of Appeal affirmed the denial of Aptos Residents Association’s (ARA) writ of mandate. The Court found that ARA’s CEQA contentions lacked merit as the County of Santa Cruz (County) acted properly in reviewing a series of CEQA-exempt utility pole installations individually and as an aggregate project.

Real party Crown Castle Inc. (Crown) proposed installation of multiple microcell DAS systems in rural county areas. Microcell DAS systems are two-foot by one-foot antennas attached to existing utility poles operated by a single wireless carrier. Crown submitted each microcell system proposal in a separate permit though presented, and the County considered the installations as a singular project. The County approved the project, finding it exempt from CEQA for being a categorically exempt “small facility,” which specifically includes utility extensions.

The project was challenged by ARA, who contended Crown’s project was not exempt from CEQA because the County improperly segmented the project while reviewing it, and because it fell within certain exceptions to the exemption based on its location, cumulative impact, and unusual circumstances. The trial court disagreed with these claims and upheld the County’s project approval. ARA appealed to the Sixth District Court of Appeal with the same claims and one additional argument: because the area was zoned residential agricultural, it was a mapped designation for environmental protection.

The Appellate Court first stated the County properly found the project to be categorically exempt from CEQA review, and thus no environmental review was required. Projects that pertain to the construction of limited small facilities or structures; as well as the installation of small equipment and facilities in small structures including electrical, gas, and utility extensions are exempt from CEQA review. The Court, relying on Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, found that the classification was correct, because the DAS microcell project constituted the installation of small new pieces of equipment on numerous existing small structures in scattered locations, and did not rise to a level of significance which warranted environmental review, both in the aggregate and separately.

The Court then found ARA’s improper segmenting claim lacked merit. ARA appealed that the County improperly considered the project as individual units because Crown filed separate permit applications for the individual microcell units and the County issued separate permits and exemptions for the each. Actions by the County’s planner, Zoning Administrator, Planning Commission, and Board all considered the entire group of microcell units to be one project—not individual projects. The Court summarily denied the assertion, stating: “[t]he nature of the paperwork required for approval of the project is immaterial,” actions by the County show where was no segmentation issue.

The Court also denied ARA’s claim that the project would form a cumulative impact exception. Allegations that other cell carriers would mirror DAS microcell project’s approval with the County, thus increasing the visual impact, were held to be baseless and speculative. The Northern California Joint Pole Association controlled access to the utility poles; access was only available if all of those using the pole agreed and the pole would not be overloaded by additional equipment. In dismissing the claim, the Court found circumstances suggesting the possibility of another project installation on the same poles was remote.

The Court then found there was no location exception to the CEQA exemption, and that the County did not abuse its discretion by not finding the poles were in certain protected areas. The location exception is restricted to projects that “may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” The ARA presented no evidence the contested area, or any of the specific poles qualified as a such-designated location. The County’s General Plan zoning of the area as rural and agricultural did not automatically qualify it as an environmental resource of hazardous or critical concern area.

Finally, the Court found that the County did not abuse its discretion by failing to find an exception based on unusual circumstances. The Court, relying on Berkeley Hillside (2015) 60 Cal.4th 1086, held ARA did not meet the burden of showing a reasonable possibility the activity would have a significant effect on the environment due to unusual circumstances. ARA produced no evidence that it is unusual for small structures to be used to provide utility extensions in a rural area, or in areas zoned residential agricultural.

Having dismissed each of ARA’s contentions on appeal, the Court affirmed, concluding the County did not abuse its discretion in finding ARA’s contentions lacked merit and upheld the CEQA exemption.

Key Point:

When challenging projects designated as small facility CEQA exempt, the burden lies on petitioners to show clear and unrefuted evidence that the classification was improper. When reviewing these determinations, courts will not accept hearsay, speculation of other parties’ interpretations of the classification, or tenuous connections between zoning ordinances and an explicit delineation that an area is subject to an exception to the categorical exemption.

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

Thursday, February 15th, 2018

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

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

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

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

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

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

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

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

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

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

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

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

Key Point:

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

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

CARB Regulatory Advisory “Project Approval” Triggers CEQA Review Despite Agency Certified Regulatory Program, Public Testimony Must Be Adequately Addressed to Meet Cal APA Standards

Wednesday, January 31st, 2018

Commercial delivery trucks like those subject to the modified CARB Regulations at issue. (ModiusDaXter)

In John R. Lawson Rock & Oil, Inc. v. State Air Resource Board (2018) 20 Cal. App. 5th 77, the Fifth District Court of Appeal found the California Air Resources Board (CARB) issuance of a regulatory advisory was “project approval” triggering CEQA. Doing such before environmental review was complete violated the CEQA timing requirement and, later, CARB improperly relied on a negative declaration. Further, CARB failed to comply with the California Administrative Procedures Act (CalAPA). As such, the Court affirmed the trial court holding, directing CARB to comply with CEQA in modifying a set of 2008 regulations known as the Truck and Bus Regulations (Regulations).

CARB issued the Regulations to reduce emissions of diesel PM, NOx, and GHG’s from large vehicles by, as pertinent here, requiring vehicle owners to retrofit and upgrade existing vehicles by January 2014. In mid-2013, CARB staff found the global recession substantially reduced trucking activity making compliance financially difficult, especially for those in rural areas and small business settings. CARB responded by delaying reporting deadlines and requesting modification proposals. Taking note of these proposals, CARB issued a regulatory advisory in November 2013 stating a handful of Regulations modifications would be implemented, with changes slated for finalization in April 2014. Specific changes included: delaying compliance dates, eliminating filter replacement requirements for certain light trucks, and providing a 10-year window where only engines less than 20-years-old would require modernization. After circulating a staff report and proposed modifications in March 2014, the board issued its final approval in December 2014. Plaintiffs and Respondents filed on behalf of fleets that had already incurred significant cost in complying with the unmodified regulations, claiming CARB failed to conform with CEQA and CalAPA requirements.

The Court found agencies that operate under a certified regulatory program are exempt from certain elements of CEQA review yet still subject to the “functional equivalent” of CEQA environmental review, per the Court’s holding in POET, LLC v. State Air Resources Control Board (2013) 218 Cal.App. 4th 681. CARB’s regulatory program requires the preparation of a public staff report at least 45 days before public hearing on a proposed regulation, discussion of environmental alternatives, response to public comment, and compliance with CEQA. Within the regulatory scheme, CEQA documents—like the CARB staff report—are expected to be analyzed and considered before project approval.

Applying CEQA principles, the Court determined that project approval triggering CEQA, or its equivalent, happened where the regulatory advisory “opened the way” for a project to proceed. CARB conduct following the advisory was “detrimental to further fair environmental analysis.” It was not sufficient that the final approval was not to be until April 2014 and actually happened in December 2014 and that there was stated CARB authority to change the modifications. Language in the advisory that truckers could immediately take advantage of certain programs and the subsequent CARB reliance on the advisory “foreclosed alternatives” to the proposed modifications. Because the advisory was issued before environmental review was complete, CARB failed to comply with the CEQA timing requirement.

Moving to the actual environmental review, the Court held the proper baseline for CEQA consideration is the actual environmental conditions at the time of review, not those allowable by the current regulations. Here, CARB acted within its discretion to not use the maximum air quality conditions allowable in the Regulations. Rather, the baseline was the situation as it was at that time, recognizing that some trucks and buses were not yet in compliance despite the Regulations.

The Court went on to address the actual environmental analysis to determine if it ultimately complied with CEQA. CARB argued that implementing the Regulations modifications would result in a continual decrease in PM, NOx, and GHG emissions, while Plaintiffs argued pollutants would increase in the short term. CARB ignored the fair argument that modifications to the Regulations would negatively and significantly impact air quality and wholly failed to address the inconsistencies between the proposed project’s emissions and applicable general plans, specific plans, and regional plans. Where a fair argument could be made substantial evidence showed a potential for significant environmental effects, CARB was incorrect to rely on a negative declaration and therefore failed to comply with CEQA.

Despite these findings, the trial court was incorrect to direct CARB to prepare an EIR, or its functional equivalent. The Court held such a remedy is only appropriate where the agency no longer has discretion to act in compliance with CEQA. Here, CARB still retained such discretion so the proper remedy is to simply direct CARB to comply with CEQA.

Lastly, CARB failed to comply with CalAPA where it did not adequately address economic impacts to intrastate commerce. While the Court usually gives deference to the agency on determinations of economic impacts, there is no deference for improperly adopted regulations. Here, CARB heard public testimony that relaxing the regulations would impact intrastate competition where those in compliance took on a large expense to be so and others would be able to undercut them. The Court held that testimony, while not written in a formal letter or report, nonetheless put CARB on notice of such issues. While CARB claimed it answered this issue in other comment answers, the Court found that its responses were not supported by any record evidence or meaningful analysis.

Key Point:

A regulatory advisory may be “project approval” triggering CEQA where it forecloses project alternatives therefore environmental review must be complete before its issuance. This standard applies to partially-exempt regulatory bodies and state agencies when their certified regulatory programs are intended to be CEQA-compliant.

Third District Court of Appeal Gives Great Deference in Quasi-Judicial Agency Decision Not to Delist Coho Salmon, Ending Decades-Long Dispute

Friday, January 5th, 2018

Drawing of an adult male coho salmon (A. Hoen and Co, Department of Commerce and Labor Bureau of Fisheries)

In Central Coast Forest Association v. Fish and Game Commission (2018) 18 Cal. App. 5th 1191, the California Third District Court of Appeal found the California Fish and Game Commission (Commission) was correct to deny a petition to delist coho salmon from state protection under the California Endangered Species Act (CESA). Deferring to the scientific expertise of the Commission, the Court held there was substantial evidence to support the decision where petitioner’s arguments rested purely on speculation.

To delist a species under CESA, the Commission must find a petition is warranted and, if so, determine if the action to list or delist is warranted. The Commission bases these initial and secondary findings on highly-technical and scientific information from the Department of Fish and Wildlife.

The coho salmon in southern San Francisco/Santa Cruz County have been a CESA-listed endangered species since 1995. In 2004, the Commission expanded the listing’s parameters and delineated coho salmon north of Punta Gorda as a threatened species and coho salmon south of Punta Gorda as an endangered species. Central Coast Forest Association and Big Creek Lumber Company (Petitioners) sought delisting of the southern coho salmon. Petitioners alleged the fish were not endangered species as there were never wild, native salmon in the region; and if there were, they were destroyed by unfavorable environmental conditions. Further, the salmon present are solely sustained by hatchery plants, and as such, are not wild or native to California.

The Commission considered and denied Petitioners’ delisting petition in 2005 and again in 2007 for failing to contain sufficient scientific information. Petitioners twice failed to gain an order from the Superior Court overturning the decisions. Upon appeal, the California Supreme Court remanded the matter to the Third District Court of Appeal.

In reviewing, the Court focused on the sufficiency of the evidence and the deference they award to such determinations. Petitioners were required to present sufficient information to indicate the delisting may be warranted, information that would lead a reasonable person to conclude that there was a “substantial possibility” delisting could occur. Evidence is sufficient only if it is material, credible, supports the petition, and, when weighed against the Commission’s written report and any comments received, is strong enough to indicate that delisting may be justified.

Where the Commission’s decision to delist species is quasi-judicial, a higher deference is awarded to Commission findings. Specifically, the Commission’s technical and scientific resources and its legally wide discretion in decision-making makes the Court affirm the decision where the weight of the evidence is clearly justified or unclear. The Court will only reverse the decision where the evidence clearly weighs against it.

The Court examined the Commission’s evidence and Petitioner’s evidence regarding coho salmon’s historical existence in the contested area; including archaeological Native American middens, historical newspaper articles, hatchery records, drought and flood records, historical environmental factors, and genetic evidence. The Court found the Commission’s evidence was sufficient to determine Petitioner’s delisting petition unwarranted. The Commission showed that coho salmon are native to the contested area by genetically sequencing and comparing extant salmon with salmon museum specimens collected in 1895 from four adjacent streams in Santa Cruz County.

The Commission’s evidence also showed the sustained coho salmon population is not the result of hatchery planting. Historic hatchery output was sporadic and small in the southern San Francisco region, therefore the current population was not likely descended from local stock and no genetic evidence showed the current population is descended from out-of-state stock. The Court noted that even if existing populations were bolstered by local non-wild hatchery fish, these fish would genetically be considered California-native hatchery fish, and thus would be protected by the CESA.

Ultimately, the Court dismissed Petitioners’ evidence for it was “circumstantial” where they were “pick[ing] out bits of information that appear to substantiate their claim.” Thus, the Commission’s decision was appropriate where Petitioners’ claims were the product of “no scientifically credible data” and “[w]hat the petitioners call ‘evidence’ is actually persuasive writing, not valid scientific evidence.”

Answering technical questions posed by the Supreme Court, the Court found that a species “range” for consideration, per the Department of the Interior interpretation, is wherever the species is found, not only where it is known or historically known to be. Further, a portion of a listed species may only be delisted where it is individually “carved out” as a separate species, unlike what was petitioned for here.

Because the Commission has highly technical knowledge and delegated authority to list and delist endangered species, the Court affirmed the Commission decision to deny the delisting petition.

Key Point:

Where a quasi-judicial agency decision is challenged, the Court will give great deference to the decision, affirming where evidence is sufficient or unclear to support the decision. Sufficient evidence to the contrary is where credible, scientific based evidence outweighs the agency’s evidence.