Thomas Law Blog

CEQA Updates

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

Author Archive


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

Wednesday, June 13th, 2018

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

In World Business Academy v. California State Lands Commission (2018) 24 Cal.App.5th 476, the Second Appellate District determined that renewing a lease for an existing power plant constituted a categorically exempt “existing structure” project under CEQA and the record did not support an “unusual circumstances” exception to the exemption.

Diablo Canyon Power Plant is a nuclear power plant that has been in operation since 1985 but is set to close by 2025. Owned and operated by PG&E in San Luis Obispo County, the plant’s cooling system draws in seawater as well as incidental aquatic plants and animals from state-owned tidal and submerged lands then expels heated water back into the sea. The leases for the water intake and discharge systems were to expire in 2018 and 2019.

PG&E submitted a single lease renewal application to the California State Lands Commission (Commission) to replace the expiring leases (Project). A staff report confirmed the Project would not require additional environmental review under the existing facilities exemption (CEQA Guidelines, § 15301) unless it was found to be an unusual circumstance meriting exception (CEQA Guidelines, § 15300.2(c)). After weighing the potential seismic and environmental impacts, the Commission found that the Project would not have a new 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.

World Business Academy filed suit alleging that the Commission’s actions violated CEQA where the lease approval would irreparably injure and deplete the marine ecosystem surrounding the plant. The trial court held the lease replacement fell squarely within the existing facilities exemption to CEQA and the unusual circumstances exception did not apply. World Business Academy timely appealed.

The Appellate Court affirmed the Commission’s lease approval under the existing facilities exemption.

The Court determined the Project was exempt from CEQA review as an existing facility, per CEQA Guidelines section 15301. Appellants argued that unlike other existing utility structures, nuclear power plant projects 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 electric power” reasonably included a power plant.

The Court rejected a related argument that the Commission lacked the authority to consider nuclear power plants under the exemption due to their operational environmental impacts. The Court found that minor alterations to, continued operation of, and leasing pre-CEQA facilities resulting in negligible or no expansion of use are unlikely to cause a new, 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 and not expand its operations.

The Court then looked at the unusual circumstances exception to the exemption under CEQA Guidelines section 15300.2(c). The Court found that the Commission incorrectly applied the Berkeley Hillside two-pronged test (described above in Don’t Cell Our Parks) but this was not fatal to the Commission’s determination.

Turning to the substance of the unusual circumstance analysis, the Court found that the Project was not an unusual circumstance based on its size and location. The Commission acted properly by considering the existing baseline for the Project and World Business Academy failed to point to specific evidence supporting the claim that impacts to aquatic life would be significantly increased past the existing operational level of the plant or certain risks – seismic activity, terrorist threats, “embrittleing” and others—would now occur. World Business Academy’s claim that the plant constituted a significant environmental effect because it was the last one of its kind in the state was irrelevant. The Court dismissed this and dismissed World Business Academy’s ad hominem attack against PG&E which alleged criminal conduct outside of the established record.

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

Tuesday, June 12th, 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 statutory exemption applied to a project undertaken by the State-created Broad Beach Geologic Hazard Abatement District (BBGHAD) and clarified that a “project” for CEQA consideration may be two separate activities if they serve a single purpose, have the same proponent, and are “inextricably linked.” Further, settlement agreement restrictions were not preempted by state law and do not constitute extraterritorial regulation. However, the abdication of BBGHAD’s police power in portions of the agreement was improper and therefore void.

The State created BBGHAD to address beach and sand dune erosion at Malibu’s Broad Beach. Here, BBGHAD was obliged 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 (Project). 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 required either traveling through the City of Moorpark (City) or on roads adjacent to the community.

In the Project’s planning stages, City officials expressed concern that hauling sand on these routes would negatively impact residents, and therefore entered into a settlement agreement with BBGHAD to manage traffic. BBGHAD agreed to specific haul routes, truck staging requirements, and changes in routes in response to settlement-defined road emergencies. Additionally, the settlement agreement could only be modified with the consent of all parties. Thereafter, the Coastal Commission approved a coastal development permit for the Project, incorporating the settlement agreement.

The County of Ventura (County) filed suit alleging that the settlement’s incorporation is preempted by state law, constitutes an illegal attempt by the City to regulate traffic outside of the City 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 was not an improper attempt by the City to regulate traffic outside City limits. However, BBGHAD improperly contracted away its ability to amend the settlement agreement, therefore the trial court struck down the agreement’s mutual assent provision and held that BBGHAD must be able to modify the agreement in response to changed circumstances. The County timely appealed.

The Appellate Court affirmed the trial court’s ruling. In addition to its original claims, the County contended that the settlement agreement is an action distinct from the Broad Beach restoration project, thus beyond the scope of the exemption and subject to CEQA review. The Court disagreed, and found that the settlement agreement between the City and BBGHAD was part of the whole beach restoration effort and one project. 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. Here, the actions served the single purpose of abating a geologic hazard and were inextricably linked in achieving that goal. Only when the second activity is independent of and not a contemplated future part of the first activity may the two activities be reviewed separately.

Turning to the preemption argument, the Court found Vehicle Code section 21 was not implicated in the City’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. The agreement 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 claim and held the City was within its contracting rights to further its implied necessary function of preventing public nuisances on their roads—like 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 by contracting away its right to exercise its police power in the future. The agreement 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.

The Court affirmed the trial court’s judgement.

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

Tuesday, May 1st, 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 held that noise impacts from a proposed youth center and transitional housing project were properly analyzed and approved with a negative declaration (ND) where the City of Santa Rosa’s (City) acoustic expert found no noise impacts above the baseline would occur as a result of the project. Appellant’s non-expert claims to the contrary did not rise to the level of substantial evidence supporting a fair argument that there would be a significant noise impact meriting preparation of an EIR.

The Dream Center Project (Project) proposed to redevelop a vacant hospital into a youth center and transitional housing for 18 to 24-year-old homeless youth and former foster care youth including youth who have been abused, are unable to afford housing, or are unable to find employment.

Project applicant filed an application for a CUP, rezoning, and design review to implement the Project plans. The City prepared a draft Initial Study/Negative Declaration. In doing so, the City contracted with a professional noise consultant to conduct a noise analysis of the site. The study concluded that the Project would not constitute a significant noise impact. The City reviewed the application and noise study and found that the Project would have no significant effect on the environment. The City approved the Project and, thereafter, Project site neighbors (Petitioners) filed suit.

Petitioners alleged that the noise impacts from recreational activities (e.g. gardening, pottery throwing) and parking lot traffic at the southern end of the Project site were significant and required preparation of an EIR. Petitioners supported these claims with reference to another noise study conducted at a neighboring convenience store whose methodology, if applied to the Project site, would demonstrate noise impacts sufficient to merit preparation of an EIR. The trial court found the claims speculative and denied the petition. Petitioners timely appealed.

The Appellate Court affirmed and refused to consider the alternative noise study proposed and interpreted by Petitioners. Petitioners’ non-expert qualitative analysis of the convenience store noise study and its methodology were not an acceptable means of analyzing noise impacts. Petitioner’s calculations were essentially opinions rendered by non-experts that rested on supposition and hypothesis, rather than fact, expert opinion, or reasonable inference. As such, Petitioners failed to present substantial evidence supporting a fair argument.

Further, the Court held, Petitioners concerns about noise from parking traffic and recreational activities were unfounded as the Project plans and conditions for approval specifically mitigated noise impacts. Noise from parking in the south lot was mitigated as only staff were allowed to park there; residents and deliveries were prohibited from using anything but the northern parking lot. Petitioners’ claims that recreation activity noise would rise to a level of significance were also meritless as activities on the half basketball court, community garden, and pottery throwing space were explicitly limited to daytime hours.

The Court affirmed the trial court’s holding.

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.

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 impact analyses for upgrades to an oil refinery project were sufficient under CEQA therefore, Contra Costa County (County) properly approved the project. Despite this, the trial court writ of mandate setting aside the project remained intact until certain air quality analyses were complete.

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

Rodeo Citizens Association (Petitioners) challenged the approval on the grounds that the project description was inaccurate for failing to address future projects and imports, 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 at project completion.

Relying on San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, Petitioners alleged the project approval was improper 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 RFEIR. The Appellate 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.

Petitioners also claimed that the project description and RFEIR were insufficient for failing to detail the Project’s environmental impacts from purported changes to the crude oil feedstock, specifically the refining of heavier oils. The Court found that the RFEIR laid out that the Project is not dependent on a change in feedstocks and the Project only plans to utilize existing steam without any additional imports or modifications to the refinery. Thus, substantial evidence in the record supported the conclusion that the Project was independent of any purported change in the crude oil feedstock used at the refinery and would not increase its present capacity to refine heavier oils.

The Court upheld the lead agency’s description of the Project 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.

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 that the Project is part of the State’s solution to climate change. While Petitioners claimed that the RFEIR 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 reducing 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 the County and Phillips’ responsibilities.

Finally, the Court rejected 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.

The Court affirmed the trial court holding on each of these issues.

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.

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

Thursday, March 15th, 2018

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

In Don’t Cell Our Parks v. City of San Diego (2018) 21 Cal.App.5th 338, the Fourth District Court of Appeal found that the San Diego City Charter (Charter 55) did not prohibit the City of San Diego (City) from approving a telecommunications project within real property held in perpetuity by the City for “park purposes.” The project did not create a “change in use or purpose” of the property, which would require a vote of two-thirds of City voters. Further, a dedicated park is not a “sensitive and protected resource area” for the purposes of CEQA Guidelines section 15300.2(a) unless explicitly designated as such.

Rancho Peñasquitos is an 8.5-acre park dedicated to the City in perpetuity for recreational purposes in accordance with Charter 55. Verizon filed a project application to build a wireless telecommunications facility in a corner of the park (Project), including a 35-foot tall cell tower disguised as a faux eucalyptus tree and a 250-square-foot landscaped equipment enclosure with a trellis roof. The San Diego Planning Board determined the Project was exempt from CEQA as being a small structure (CEQA Guidelines, § 15303) and approved the Project. Don’t Cell Our Parks (DCOP) filed suit against the City.

DCOP alleged that placing the facility within the park was not a permissible “park or recreational purpose” under the plain language of Charter 55. The trial court disagreed and held the Project was properly approved, exempt from CEQA as a small facility, and no unusual circumstances established an exception to the CEQA exemption. DCOP timely appealed.

The Appellate Court first turned to the language and context of Charter 55 wherein real property dedicated to the City without an ordinance or statute explicitly guiding its management may be used for any public purpose deemed necessary by the City. Voter approval is only required where a project would “change the use or purpose” of a dedicated park. After reviewing the record, the Court held the Project did not change the use or nature of the park –the facility’s faux-tree would be installed in an existing stand of trees and the structure would be shrouded by native plants. The Court also found that the construction of the wireless facility would “clearly benefit park visitors” by providing greater access to 911 services. In sum, the Court deferred to the City’s interpretation of its Charter.

The Court rejected all of DCOP’s arguments that the project was erroneously approved as a Class 3 categorical exemption from CEQA.

The Court found that the Project qualified for the Class 3 exemption (CEQA Guidelines, § 15303), rejecting Petitioners’ claims that telecommunications are not explicitly listed in the statute. The Court noted that exemption categories are not exclusive and that the exemption is meant to apply to multiple types of small facilities. Here, the Project is roughly 523 square feet, most of which are faux tree branches. Substantial evidence supported the City’s conclusion that the Project was smaller than the examples listed in Section 15303 such as a store, motel, or family residence. Thus, the Project was properly a Class 3 exemption.

Second, the Court addressed DCOP’s claim that an unusual circumstances exception applied per CEQA Guidelines section 15300.2(c). The two-pronged test in Berkeley Hillside Preservation v. City of Berkeley, (2015) 60 Cal.4th 1086, provided that determining an unusual circumstance exists is a factual inquiry and the Court reviews this claim under the deferential substantial evidence standard of review. If there is evidence of an unusual circumstance, and no substantial evidence to the contrary, then the Court examines the record for evidence whether the unusual circumstance results in a potentially significant impact to the environment. In this second part of the Court’s review, the Court applies the fair argument standard of review. Here, DCOP failed to satisfy either of these standards.

The Court held that the Project’s location in a dedicated park was not an unusual circumstance as 37 other similar facilities existed in other dedicated parks in the City. In the State, many similar cell towers and reception boxes have been unsuccessfully challenged for being placed in parks and subsequently permitted. The record included sufficient evidence to show that the Project location was not an unusual circumstance.

Next, the Court rejected DCOP’s claim that the park was environmentally sensitive land. An exception exists 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(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. The City’s general plan designation and zoning of the Project site as a park was insufficient to support such a finding. In fact, the record included a biological resource report created by the City for the project approval, which showed that the area where the Project was proposed for construction was mostly disturbed habitat.

The Court affirmed the trial court judgement.

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, February 28th, 2018

The Covina Metrolink station a short distance from the project site

In Covina Residents for Responsible Development v. City of Covina, (2018) 21 Cal.App.5th 712, the Second District Court of Appeal held that parking impacts caused by a project are exempt from CEQA review, per Public Resources Code section 21099. Additionally, the Court found that the City of Covina (City) properly tiered from a prior EIR for a specific plan where potential project-specific impacts were addressed in a project-specific analysis and mitigation measures were imposed to address identified impacts. Further, where impacts are statutorily exempt, as they were here for parking impacts, no further analysis is required in the tiered document. Finally, approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

In 2012, project applicants submitted a proposal to the City of Covina (City) for the construction of a mixed-used urban residential infill project (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. Ultimately, the City approved the Project and issued a mitigated negative declaration (MND). Covina Residents for Responsible Development (CRRD) filed suit alleging the City was required to prepare an EIR, improperly tiered the MND from the specific plan EIR, and violated the Subdivision Map Act by failing to make necessary findings. CRRD’s principal CEQA challenge focused on the project’s allegedly inadequate parking.

The trial court denied the petition, finding (a) no substantial evidence supported CRRD’s claim that the parking shortage would result in environmental impacts; (b) parking impacts from the Project were exempt from environmental review under Public Resources Code section 21099; (c) the City properly tiered its environmental review from the specific plan EIR; and (d) the City did not violate the Subdivision Map Act. CRRD timely appealed.

The Appellate Court first addressed whether the alleged parking impacts are exempt from environmental review under Public Resources Code section 21099 subdivision (d)(1), which provides, “[a]esthetic 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 concluded that parking impacts need not be addressed in the City’s environmental analysis because Section 21099 specifically exempted such analysis for infill sites within a transit priority area. The Court established that the Project was within a transit priority area and that the City had no obligation to analyze parking impacts caused by the Project.

The Court noted that the statutory intent of the bill was to address climate change and the state’s long term environmental goals and to build on prior statutes, including AB 32 and SB 375.

The Court then dismissed Petitioner’s claim that the MND improperly tiered from the specific plan EIR. Traffic impacts from a parking shortage related to an infill project, as discussed above, are exempt from CEQA review though were nevertheless adequately considered in the specific plan EIR.

Finally, the Court dismissed CRRD’s claim that the City’s findings relating to the consistency of the Project’s tentative map were not supported by substantial evidence. Government Code sections 66473.5 and 66474 require local agencies to make findings related to consistency with the specific plan and design of the project. Here, the Court determined the City adopted all necessary findings and CRRD failed to identify evidence in the record that the Project was incompatible with the specific plan.

Key Point:

Public Resources Code section 21099 exempts project parking impacts from CEQA review when the project is contextualized in an urban infill setting.

Where impacts are statutorily exempt, no further analysis is required in a tiered EIR.

Approval of a project tentative map is only appropriate where the local agency makes findings that the map is compatible with objectives, policies, general land uses and programs in the specific plan but need not show perfect conformity.

Sixth District Court of Appeal Upholds Application of CEQA Exemption for Small Facility —Utility Extension In the Absence of Petitioner Carrying Its Burden to Demonstrate the Location, Cumulative Impact, or Unusual Circumstances Exceptions Applied

Monday, February 5th, 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 found a Class 3 categorical exemption for “small structures” applied to multiple small projects considered as a group. The Court held 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 in Interest Crown Castle Inc.’s (Crown) project application proposed installation of multiple microcell distributed antenna systems (DAS) in rural County areas (Project). These installations 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 application. However, Crown presented, and the County considered, the installations together as a single project. The County approved the Project, finding the DAS systems exempt from CEQA as categorically exempt “small facilities.” Aptos Resident Association (ARA) filed suit against the County.

ARA contended that the Project was not exempt from CEQA because the County improperly segmented the Project and the Project fell within multiple exceptions to the exemption based on its location (CEQA Guidelines, § 15300.2(a)), cumulative impact (CEQA Guidelines, § 15300.2 (b)), and unusual circumstances (CEQA Guidelines, § 15300.2(c)). The trial court disagreed and upheld the County’s approval of the Project. ARA timely appealed the decision.

The Appellate Court held the County properly found the project to be categorically exempt from CEQA as a Class 3 exemption (CEQA Guidelines, § 15303) and thus, no environmental review was required. Class 3 exemptions include projects that propose the construction of limited small facilities or structures, as well as the installation of small equipment and facilities in small structures, incorporating electrical, gas, and utility extensions. Relying on Robinson v. City and County of San Francisco (2012) 208 Cal.App.4th 950, the Court found that substantial evidence supported the County’s Class 3 exemption because the Project constituted “the installation of small new equipment on numerous existing small structures in scattered locations.”

The Court then found ARA’s segmenting claim lacked merit where the County “considered the entire group of microcell units to be the Project.” Although Crown filed separate permit applications for the individual microcell units and the County issued separate permits and exemptions for each unit, the Project was considered as a group. Rejecting the segmentation argument, the Court noted that “[t]he nature of the paperwork required for approval of the project is immaterial.”

The Court also denied ARA’s claim that the Project would fall within a cumulative impact exception (CEQA Guidelines, § 15300.2(b)) because other cell carriers would mirror Crown’s microcell project’s approval within the County, thus increasing the visual impact. The court found ARA’s argument baseless and speculative where evidence in the record suggested to the contrary. 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. Thus, the possibility of additional installations on the same poles was remote.

The Court then found the location exception (CEQA Guidelines, § 15300.2(a)) to the Class 3 exemption did not apply. The location exception is restricted to projects that “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.” The County Code designating the area as “rural” and “residential agricultural” did not have any language in the statement of purpose designating the area as an environmental resource of hazardous or critical concern. ARA presented no evidence that Project site qualified.

Finally, the Court found that the County did not abuse its discretion by finding no exception based on unusual circumstances. (CEQA Guidelines, § 15300.2(c).) Relying on Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, the Court 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 the trial court and found the DAS installations were properly exempt from CEQA.

Key Point:

When challenging CEQA exemptions, the burden lies on petitioners to show clear and unrefuted evidence that the classification was improper; speculation and hearsay are insufficient.

Further, CEQA allows the exemption for small facilities to apply to multiple small facilities at once within a project. Agriculture zoning is inadequate to successfully claim the location exception, facts must show that the project site is actually “an environmental resource of hazardous or critical concern.”

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’s (CARB) issuance of a regulatory advisory was “project approval” triggering CEQA review. Doing so prior to completion of environmental review violated CEQA timing requirements. Later, CARB relied on a negative declaration, which the Court also set aside. Further, CARB failed to comply with the California Administrative Procedures Act (CalAPA). As such, the Court directed 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 greenhouse gas emissions 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 with the Regulations financially difficult, especially for those in rural areas and small business settings. CARB responded by delaying reporting deadlines and requesting modification proposals. In November 2013, CARB issued a regulatory advisory stating a handful of modifications to the Regulations would be implemented. 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, CARB issued its final approval in December 2014. Plaintiffs and Respondents filed suit on behalf of fleets that had already incurred significant cost in complying with the unmodified regulations, alleging CARB failed to comply with CEQA and CalAPA requirements.

The Appellate 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, documents like the CARB staff report are expected to be analyzed and considered before project approval in the same way that CEQA documents are considered.

Applying CEQA principles, the Court determined that project approval triggering CEQA or its equivalent occurred where the regulatory advisory “opened the way” for a project to proceed. CARB conduct following the advisory was “detrimental to further fair environmental analysis.” That the final approval was not to be until 2014 and there was stated CARB authority to change the modifications before that time was insufficient to show the regulatory advisory was not project approval. 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 CEQA timing requirements.

Next, the Court held the proper baseline for CEQA consideration in this case is the actual environmental conditions at the time of review, not those allowable by the current regulations. As such, CARB acted within its discretion to use a baseline that recognized some trucks and buses were not yet in compliance

Despite this, substantial evidence supported a fair argument that modifications to the Regulations would negatively and significantly impact air quality therefore CARB was incorrect to rely on a negative declaration. CARB failed to address that the modifications, while continuing to decrease emissions in the long term, would increase emissions in the short term. CARB also failed to address the inconsistencies between the proposed project’s emissions and applicable general plans, specific plans, and regional plans.

Notwithstanding these findings, the Court held that the trial court incorrectly directed CARB to prepare an EIR, or its functional equivalent. 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.

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

Friday, January 12th, 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,

The First District Court of Appeal concluded that the Port of Los Angeles (Port) Project description was accurate, not misleading, and did not result in piecemealing. As such, the Court affirmed in part and remanded in part a judgement setting aside the City of Los Angeles (City) and Real Party in Interest BNSF Railway Company (BSNF) (collectively Appellants) final EIR related to BNSF’s railyard construction project. The Court also found that the Attorney General has no obligation to exhaust administrative remedies.

At the Port, shipping containers are loaded onto 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 (Hobart Yard) 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 Hobart Yard 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 of the EIR and approval of the Project.

Seven suits were filed in multiple Counties. The Attorney General intervened on one. The trial court, after consolidating the petitions, set aside the certification of the FEIR and project approval. Specifically, the trial 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. Appellants timely appealed.

The Appellate Court first addressed the Attorney General’s intervention. Appellants alleged the Attorney General failed to abide by exhaustion requirements because he/she did not raise the issues in the administrative hearing that he/she brought in the intervening action. Indeed, no party had raised 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 section’s requirements to the Attorney General. The Court found that the Attorney General need not be a party in the administrative hearings nor is he/she limited to raising issues raised during the administrative proceedings because he/she is specifically exempt from both identity and issue exhaustion requirements. (Pub. Res. Code, § 21177 (d).)

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 that 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, substantial evidence in the form of worldwide and domestic intermodal business studies supported the City’s conclusion that a predicted amount of economic growth could occur with or without the Project. While the proposed near-dock site would increase the cargo capacity of the Port, because the Project would retire an equal amount of use at the Hobart site and growth would occur regardless of the Project, the Project did not increase the demand or volume of cargo at the Port, it merely changed the place at which the cargo is distributed. The Court found this analysis was adequate.

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 because 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 a “good faith and reasonable disclosure” for the same reasons detailed above. Finally, the Court upheld the FEIR’s GHG analysis, noting that the Project relocating shipping activities twenty miles closer to the ship yard would result in less emissions than not building the Project at all.

The Court affirmed the trial court’s decision to set aside certification of the FEIR and suspend project activities until the City could 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).

The Court affirmed in part and remanded in part for further proceedings.

Key Point:

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.

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

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.