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

Tuesday, April 7th, 2020

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

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

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

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

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

WATER

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

  1. Water Supply Impacts

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

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

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

  • Analysis of the Drought

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

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

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

  • Mitigation of Water Supply Impact

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

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

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

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

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

AGRICULTURAL LAND

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

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

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

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

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

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

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

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

NOISE

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

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

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

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

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

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

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

APPELLATE RELIEF

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

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

UNPUBLISHED HOLDINGS

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

KEY POINTS

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

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

Tuesday, April 7th, 2020

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

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

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

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

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

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

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

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

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

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

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

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

Key Point

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

FOURTH APPELLATE DISTRICT MODIFIES PUBLISHED OPINION ON THE UNUSUAL CIRCUMSTANCES EXCEPTION TO CATEGORICAL EXEMPTIONS

Thursday, July 7th, 2016

Note: the Supreme Court granted a request for depublication of this opinion on August 22, 2016. See http://www.thomaslaw.com/blog/supreme-court-depublishes-people-proper-planning-v-city-palm-springs/ 

On June 17, 2016, the Fourth Appellate District modified its recently published opinion, People for Proper Planning v. City of Palm Springs. As modified, the opinion now cites to last year’s Supreme Court decision Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (Berkeley Hillside), which articulated the standard of review for the unusual circumstances exception to CEQA’s categorical exemptions.

As stated by the Supreme Court in Berkeley Hillside, the determination of whether the unusual circumstances exception to a categorical exemption applies to a project consists of a two-step analysis. The first step is to determine whether the project exhibits any unusual circumstances; an inquiry reviewed under the substantial evidence standard of review. The second step is to consider whether an unusual circumstances, if present, give rise to a potentially significant environmental impact; an inquiry reviewed under the fair argument standard of review.

Before the decision was modified, it was unclear whether the court applied the two-part test in Berkeley Hillside. The modified opinion includes a footnote explaining that the City of Palm Springs did not dispute that the case presents an unusual circumstance. As a result, the focus of the decision is on the second prong – whether petitioners presented a fair argument of a potentially significant environmental impact resulting from the unusual circumstances. Because the court concluded petitioners presented a fair argument of a potentially significant land use impact, the court granted the writ. For a complete summary of the court’s analysis, please see our previous blog post at: http://www.thomaslaw.com/blog/fourth-district-holds-that-palm-springs-general-plan-amendment-is-not-categorically-exempt-in-published-opinion/

Key Point: Because the first prong of unusual circumstances analysis applies the deferential substantial evidence standard of review, to increase the defensibility of using a categorical exemption it is integral that lead agencies adopt findings that explain why a proposed project does not involve unusual circumstances.

Thomas Law Group Associates Present “CEQA Streamlining” to Professionals Involved in the Environmental Review Process

Friday, March 18th, 2016

Thomas Law Group Associates Chris Butcher and Ashle Crocker will host a special presentation on CEQA Streamlining as part of the curriculum developed specifically for professionals involved in the Environmental Review Process on May 17, 2015 from 8:00 to 9:30 am.

The program will be at North Coast Builders Exchange, 1030 Apollo Way, Santa Rosa.

For more information, call the North Coast Builders’ Association headquarters at 542-9502 or email receptionist@ncbeonline.com. We look forward to seeing you there!

CEQA seminar flyer

CEQA Streamlining Panel Friday, April 22, 2016.

Please Join AEP & APA North Bay For A Workshop CEQA Streamlining Processes

Thursday, February 18th, 2016

Thomas Law Group Associates Chris Butcher and Ashle Crocker will host a special presentation on CEQA Streamlining Process for the Association of Environmental Professionals and the California chapter of the American Planning Association on Thursday, April 7, 2016.

The program will be at 2235 Mercury Way, Suite 150, Santa Rosa, California. Lunch will be provided.

For more information and to RSVP contact Carrie Lukacic at carrie@pcz.com

00186608

Join us! Contact Carrie at carrie@pcz.com

LSNC 13th Annual Race for Justice Valentine Run/Walk

Tuesday, February 16th, 2016

Thomas Law Group won “Best Dressed” at Legal Services of Northern California 13th Annual Race for Justice Valentine Run/Walk! Friends and family of Thomas Law Group all dressed in costume to match TLG team members as all participated int he annual community fundraiser for the legal services organization.

 

 

Team Thomas Law Group showing off their award-winning costumes.

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Thomas Law Group’s youngest entrant, Collette, in her race attire.

 

“No one ever said it was easy to build a project in San Francisco”

Monday, September 28th, 2015

On September 17, 2015, the California First District Court of Appeal struck another blow to the beleaguered 8 Washington Street Project in Defend Our Waterfront v. California State Lands Commission, 2015 Cal. App. LEXIS 817, when it upheld the trial court’s ruling that a necessary land transfer between the State Lands Commission and the City of San Francisco did not qualify for an obscure CEQA exemption.

Developers San Francisco Waterfront Partners II, LLC and Pacific Waterfront Properties LLC have been attempting to build luxury condominiums on waterfront land near the San Francisco Ferry Building for almost a decade. In 2012, the project seemed to be on track. The Planning Commission certified the project’s FEIR, the Board of Supervisors affirmed the certification, and the developers were issued a conditional use authorization. At that point, only one hurdle remained—removing the public trust restrictions from the waterfront land.

The site for the project includes a parcel of property commonly referred to as “Seawall Lot 351,” which includes a public trust restriction due to the fact that the area was previously submerged land under the San Francisco Bay. To allow the development to proceed on Seawall Lot 351, the developer and the City devised a plan to transfer the lot out of the public trust and replace it with a different parcel of property pursuant to a land exchange agreement with the State Lands Commission. In August 2012, the State Lands Commission approved the land exchange agreement and found that the agreement is a statutorily exempt activity under CEQA pursuant to Public Resource Code section 21080.11.

Defend Our Waterfront (DOW) challenged the State Lands Commission’s reliance on the exemption. In early 2014, the trial court held the exemption was inapplicable and invalidated the land transfer.

On appeal, the First District upheld the lower court’s ruling. The Court began by rejecting State Lands Commission’s argument that DOW failed to exhaust their administrative remedies. DOW formed after the State Land Commission’s decision to approve the land swap. The State Lands Commission argued that Public Resources Code section 21177, subdivision (c), requires that a member of the after-formed organization must have raised the CEQA issue during the agency proceeding. The Court did not reach the merits of this argument because it determined that the State Lands Commission had provided inadequate notice of the meeting in violation of section 21177, subdivision (e), excusing DOW from the exhaustion requirement.

Specifically, the Court held that a meeting agenda posted on the State Lands Commission’s website stating that the land exchange agreement would be discussed, with no mention of CEQA, was insufficient to give the required notice that the project would be approved based on a statutory exemption. A hyperlink to a staff report that mentioned the CEQA exemption was added prior to the meeting; however, the Court found the extra step of clicking on the hyperlink to be inadequate notice and regardless, the link to the staff report was not added at least 10-days’ prior to the meeting as required under Government Code section 11125, subdivision (a). The Court further held that actual notice of the meeting/staff report did not satisfy CEQA’s notice requirement, nor was the notice requirement waived when one of DOW’s members’ failed to object to the exemption at the meeting.

On the merits of the challenge, the Court held that the Public Resource Code section 21080.11’s exemption for “settlements of title and boundary problems by the State Lands Commission and to exchanges or leases in connection with those settlements” applied only to instances where the State Lands Commission exercised its authority to settle land disputes. The Court rejected the State Lands Commission’s argument that it applied to title “problems” generally, finding that it was not required to defer to the State Lands Commission’s interpretation of the exemption because construing the scope of the CEQA exemption was a matter of “statutory interpretation” subject to de novo review.

Key Point:

The public must have sufficient notice under section 21177, subdivision (e), to trigger the exhaustion requirements. The notice must clearly state if any CEQA determinations will be discussed at the meeting and that statement must be in the notice itself, not in a hyperlinked document. This case also made clear that actual notice or waiver is no substitute for those notice requirements.

Executive Order Establishes New 2030 Mid-Term Greenhouse Gas Emissions Reduction Target

Friday, May 1st, 2015

On April 29, 2015, Governor Jerry Brown signed Executive Order B-30-15, which establishes “[a] new interim greenhouse gas emission reduction target to reduce greenhouse gas emissions to 40 percent below 1990 levels by 2030…” (Executive Order B-30-15, ¶ 1, at http://gov.ca.gov/news.php?id=18938.)  The Executive Order requires the California Air Resources Board to express the 2030 target in terms of million metric tons of carbon dioxide equivalent. (Id. at ¶ 3.)  The Executive Order also requires state agencies consider “full life-cycle cost accounting” when making future planning and investment decisions. (Id. at ¶ 6.)  To help state agencies incorporate climate change impacts into planning and investment decisions, the Executive order requires the Governor’s Office of Planning and Research to establish a technical, advisory group on the issue.

 On June 1, 2005, Governor Arnold Schwarzenegger signed Executive Order S-3-05, which among other goals established a target to achieve statewide GHG emissions that are 80 percent below the 1990 levels by 2050.  Governor Brown’s Executive Order B-30-15 does not replace Governor Schwarzenegger earlier 2050 target.  Rather, as explained in Executive Order B-30-15, this new interim target will “ensure California meets its target of reducing greenhouse gas emissions to 80 percent below 1990 levels by 2050.” (Ibid.)  Therefore, Executive Order B-30-15 provides support for the conclusion that a project found consistent with Executive Order B-30-15 is consistent with Executive Order S-3-05.

 In addition to establishing a new interim target, the Executive Order requires the California Natural Resources Agency (Resources Agency) to update the state’s climate adaptation strategy, Safeguarding California, every three years and to ensure that the strategy is fully implemented.  Among other requirements, the strategy must identify a lead agency or group of agencies that are responsible for adaptation efforts in, at least, the following sectors:  water, energy, transportation, public health, agriculture, emergency services, forestry, biodiversity and habitat, and ocean and coastal resources. (Executive Order B-30-15, ¶ 4.)  The lead agencies for each sector must, by September 2015, outline the actions in their sector that will be taken as identified in Safeguarding California and must report back to the Resources Agency on their success by June 2016. (Id., ¶ 5.) 

 Finally, the Executive Order also requires the state to take current and future climate change impacts into account in all infrastructure projects identified in the state’s Five-Year Infrastructure Plan. (Executive Order B-30-15, ¶ 8.) 

 Several bills are pending this legislative session that relate to future GHG targets for the state.  For example, AB 21 would require a statewide greenhouse gas emissions limit for 2030 to be established by 2018.  SB 32 would require a statewide GHG emission limit equivalent to Executive Order S-3-05’s goal of 80% below the 1990 level by 2050 and authorizes interim greenhouse gas emissions level targets to be established for 2030 and 2040.  AB 33 would establish a Climate Change Advisory Council with the duty to develop and analyze strategies to achieve the statewide GHG emissions limit as defined by AB 32 in 2006.  Thomas Law Group will continue to monitor if and how pending legislation is amended to respond to Executive Order B-30-15. 

 

Thomas Law Group Adds Oakland Office to Growing Environmental Law Practice

Tuesday, February 3rd, 2015

The Thomas Law Group announced today the opening of a new office at the Kaiser Building in Oakland. The expansion comes on the heels of the law firm’s hiring of four new attorneys in 2014 to support the growing environmental and land use law firm.

The new office will be led by Thomas Law Group Of Counsel Todd Smith and enable the firm to establish closer ties with its Bay Area clients. Firm Founder Tina Thomas will continue to oversee all of the firm’s work at the existing Sacramento office and new office in Oakland. The Thomas Law Group is one of California’s top environmental law firms concentrating on land use issues and assisting clients to navigate the challenges of the California Environmental Quality Act and other environmental regulations.

The Thomas Law Group signed the lease on the new office space this month and will officially open the office for daily business in April.

“With several of our clients pursuing new projects in the Bay Area this year, the timing is right for us to establish a more formal presence in Oakland,” said Tina Thomas. “The Bay Area has always been a leader in environmental policy so it is a natural fit for the firm and the direction the firm will go in the next few years.”

The new office is the latest development for the flourishing law firm, which added four attorneys to its staff in 2014. Prior to joining the Thomas Law Group last year, Todd Smith spent five years with Ragghianti Freitas LLP in San Rafael, CA and seven years as Counsel with Pillsbury Winthrop Shaw Pittman LLP in San Francisco advising public entities and private developers in environmental, land use, and natural resources law. Angela McIntire joined the firm after several years as corporate counsel for an environmental consulting firm where she oversaw the environmental review process for a variety of energy, agricultural, urban, and rural development projects. Holly McMannes, who graduated U.C. Davis law school and interned for the Thomas Law Group in 2012, also joined the firm last year. The Thomas Law Group also added Natalie Kuffel, who will begin her work later this year after completing a one-year clerkship with the Hon. Morrison England in the United States District Court for the Eastern District of California.

Tina Thomas founded the Thomas Law Group in 2011 after nearly three decades at a separate environmental law firm in Sacramento. Thomas co-authored “Guide to the California Environmental Quality Act,” which is in its 11th edition, and has argued successfully before the California Supreme Court, California Appellate Courts and Federal District Court with many of her cases establishing new case law to guide future decisions in environmental law.

Media coverage of the new office news includes:

The Sacramento Business Journal: http://www.bizjournals.com/sacramento/news/2015/01/28/thomas-law-group-grows-adds-oakland-office.html
Sacramento Bee: http://www.sacbee.com/news/business/article8216358.html

The contact information for the new office is:

Thomas Law Group
One Kaiser Plaza, Suite 875
Oakland, California 94612
E-mail: info@thomaslaw.com
Telephone (916) 287-9292
Fax: (916) 737-5858

Ninth Circuit Reverses District Court and Upholds Biological Opinion Protecting Endangered Species in the Delta . . . Again

Thursday, January 29th, 2015

In San Luis & Delta-Mendota Water Authority v. Locke, 2014 U.S. App. LEXIS 24351, the Ninth Circuit reversed the district court and upheld a National Marine Fisheries Service’s (NMFS) biological opinion that determined continuing water extractions in the Central Valley would jeopardize several threatened and endangered species. The court also affirmed the district court on three cross-appeal issues related to the biological opinion.

The U.S. Bureau of Reclamation (Reclamation) requested the biological opinion in accordance with the Endangered Species Act (ESA).  Following new designations of certain species and habitats in the Sacramento-San Joaquin Delta (Delta), Reclamation asked NMFS to evaluate the impact of California’s complex water distribution system on five Salmonid species of anadromous fish and the Southern Resident orca. NMFS determined continued operations of the system would jeopardize the existence of all but one of the fish species and recommended several “reasonable and prudent alternatives” (RPAs) to change how Reclamation pumped water from the Delta. Subsequently, numerous water districts and other stakeholders (plaintiffs) sued Reclamation and other federal agencies arguing that portions of the biological opinion were arbitrary and capricious in violation of the Administrative Procedures Act (APA).

The court’s opinion mirrored its previous decision in San Luis & Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (summarized here: http://www.thomaslaw.com/blog/ninth-circuit-reverses-district-court-upholds-biological-opinion-protecting-endangered-delta-smelt/) in which the court similarly reversed the district court and upheld a biological opinion regarding the Delta Smelt. Similar to Jewell, the court held the trial court erred in considering evidence outside the record. The court reasoned the district court improperly used the extra-record evidence to question NMFS’ scientific judgments.

The court then considered each of plaintiffs’ challenges to the biological opinion and found that the district court did not afford NMFS the proper deference under the APA. Paralleling its reasoning in Jewell, the court upheld NMFS’ use of raw salvage figures to estimate the number of fish trapped in the Delta’s pumps. The court also concluded that NMFS did not act arbitrarily or capriciously in finding the continued water allocations would jeopardize the viability and habitat of the listed species. The court reasoned NMFS properly characterized the baseline status of the populations, correctly applied the ESA, considered all relevant factors and adequately supported its conclusions with the best available evidence. Accordingly, the district court erred in questioning the scientific judgments of NMFS.

The court also held the trial court erred in requiring NMFS to explain why each RPA was necessary over other alternatives to preserve the listed species. The ESA imposed no such burden and only required NMFS to “fairly conclude–based on the record­­–that the proposed RPAs do not further jeopardize the listed species or adversely affect critical habitats.”

Finally, the court upheld the district court on three cross-appeals in which the district afforded NMFS the proper deference in drafting the biological opinion.

KEY POINT

The court reiterated the holding from San Luis & Delta-Mendota Water Authority v. Jewell that courts should be highly deferential to the scientific expertise of agencies such as NMFS when reviewing biological opinions. Litigants should also strongly consider the terse summation of the Delta situation guiding the Ninth Circuit in this case and likely in future cases as well––“People need water, but so do fish.”