California Appellate Court Upholds Expansion Plan for Landfill in Suisun Marsh

June 20th, 2014

By: Thomas Law Group



In SPRAWLDEF v. San Francisco Bay Conservation & Development Commission, 2014 Cal. App. LEXIS 469, the Court of Appeal for the First Appellate District reversed the trial court’s decision to grant a petition for a writ of mandate challenging the San Francisco Bay Conservation and Development Commission’s approval of an expansion plan for the Potrero Hills Landfill in the Suisun Marsh in Solano County.

Waste Connection, Inc., which operates the Potrero Hills Landfill, first proposed expanding the landfill in 2003. Two years later, Solano County issued a use permit and marsh development permit for the expansion. Despite requiring relocation of a seasonal stream known as Spring Branch near the landfill, Solano County concluded the EIR was consistent with the Suisun Marsh Preservation Act and the Solano County Local Protection Plan.

Solano County’s decision was appealed to the San Francisco Bay Conservation and Development Commission (the Commission), which has jurisdiction over all planning and permitting decisions for projects affecting the San Francisco Bay. The Commission reviewed Solano County’s decision de novo and conducted its own environmental review of the project impacts. The Commission’s scientists found in 2007 that the impacts to Spring Branch were different from the hydrology report prepared in connection with the EIR and asked Waste Connections to explore more alternatives for reducing the size of the expansion.

The results of this analysis were included in a 2009 report submitted to the Army Corps of Engineers and the Commission. The report considered sixteen off-site alternatives and four on-site alternatives. The proposed expansion would add 167 acres to the landfill’s footprint, increase the capacity of the landfill by 41.43 million tons at a cost of $2.66 per ton, and extend the life of the landfill by 35 years. In comparison, all but one alternative extended the life of the landfill by less than ten years and cost at least 50 percent more per ton. The Commission was particularly interested in an alternative that would add 127 acres to the landfill’s footprint, increase the landfill’s capacity by 29 million tons, and extend the life of the landfill by 25 years. However, Waste Connections determined this 127-acre alternative would result in a decrease in gross revenue by 45 percent.

Waste Connections explained to the Commission that because the costs of expansion are largely fixed, there would only be a 10 percent decrease in the cost of the project under the 127-acre alternative, which made it not financially viable given the significant decrease in gross revenue. As a result, the Commission approved the expansion proposal with a slight modification prohibiting the landfill from increasing in height.

The Sustainability, Parks, Recycling and Wildlife Legal Defense Fund (SPRAWLDEF) challenged the Commission’s finding that there was no reasonable alternative to Waste Connections’ proposal. Under the Suisun Marsh Preservation Act, a local government can only issue a marsh development permit if the local government finds that the project is in conformity with the local protection program. SPRAWLDEF contended that the Commission violated Solano County Ordinance section 31-300, which prohibits filling natural channels in the Suisun Marsh unless there are no reasonable alternatives. The trial court reversed the Commission and found that the Commission’s determination that the 127-acre proposal was not economically reasonable was not supported by substantial evidence.

The appellate court though relied on CEQA’s meaning of “no feasible alternative” to interpret the meaning of “no reasonable alternative” in section 31-300. The court analogized to Sierra Club v. County of Napa (2004) 121 Cal.App.4th 1490, in which a winemaker explained that the proposed project was the only place on the property to construct a facility of the size and layout necessary to meet the needs of the business. The court in Sierra Club found that although more information could have been included, there was substantial evidence that any alternative would not be economically feasible. Similarly, the court in this case found that Waste Connections had explained why the 127-acre alternative reduced costs only 10 percent but reduced revenue by 45 percent and thus was not a reasonable alternative.

The court distinguished the case from Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167 and Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, in which there was no opportunity for the local government to make a meaningful comparison because no economic data on the alternative was available. The court recognized the determination as to whether evidence is sufficient depends on the context of the case and noted that Waste Connections did not make a “bald assertion” regarding the economic feasibility of the 127-acre alternative. Instead, the Commission had adequate information to fairly determine that the proposed alternatives were not economically reasonable. As a result, there was no basis for the trial court to conclude that Waste Connections had to produce significantly more economic data on the 127-acre alternative.

The court also stated that there was no merit to SPRAWLDEF’s argument that Waste Connections’ economic information should be discounted because it was prepared by Waste Connections. The Commission had the discretion to determine the credibility of this evidence and just because evidence is self-serving does not make it less credible.

KEY POINT

The court applied the same standard for “feasibility” of alternatives under CEQA to “reasonableness” of alternatives under a Solano County ordinance that prohibits filling natural channels in the Suisun Marsh unless there are no reasonable alternatives. When comparing alternatives, it is vital that the court have some economic data on alternatives to actually compare to, even if that data is less robust than the data for the primary proposal. Additionally, the data should not be ignored or discounted simply because it is self-serving and prepared by the party seeking approval of the project.