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SUPREME COURT DELAYS DEVELOPMENT OF NEWHALL RANCH PROJECT

Tuesday, December 15th, 2015

On November 30, 2015, the Supreme Court issued its decision in Center for Biological Diversity v. California Department of Fish and Wildlife, 2015 Cal. LEXIS 1043, addressing Newhall Ranch, a proposed 12,000 acre development project. The Newhall Ranch Specific Plan area, located in northwestern Los Angeles County in a portion of the Santa Clara River Valley, was first analyzed and approved by Los Angeles County in 2003. In 2010, the California Department of Fish and Wildlife (CDFW) certified an environmental impact report/environmental impact statement (EIR/EIS), approved a resource management plan, adopted a conservation plan and a streambed alteration agreement, and issued incidental take permits necessary to implement the Specific Plan previously approved by the County. CDFW’s approvals were subsequently challenged under CEQA by a coalition of conservation groups.

While the Los Angeles County Superior Court granted plaintiffs’ petition for writ of mandate on several grounds, the Second District Court of Appeal reversed on all issues and directed the trial court to enter judgment in favor of CDFW. On review, the Supreme Court considered three issues and addressed, for the first time, what lead agencies must do to sufficiently analyze greenhouse gas emissions in an EIR.

Justice Werdegar filed the opinion for the five-justice majority, with Justice Corrigan writing a separate opinion concurring and dissenting and Justice Chin writing a lengthy dissent. This decision will have far reaching implications for future EIRs, but unfortunately, the majority opinion provides little clarity on how lead agencies will be able to survive legal challenges to greenhouse gas analyses.

The majority began its analysis by stating that the appropriate threshold for the EIR’s greenhouse gas emissions analysis was a question of law that the Court should review de novo because it pertains to “correct CEQA procedure.” This holding is in conflict with previous case law stating that a lead agency’s selection of a threshold is deferentially reviewed under the substantial evidence standard.

After conducting a de novo review, all of the justices agreed that lead agencies can use consistency with AB 32 as a threshold for determining the significance of greenhouse gas emissions under CEQA. The California Air Resources Board’s 2008 Scoping Plan implements AB 32 and sets forth a plan to reduce greenhouse gas emissions in California to 1990 levels by cutting business-as-usual emission levels projected for 2020 by 29 percent. Plaintiffs argued that “business as usual” was an impermissible hypothetical future scenario under the Court’s prior ruling in Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310. The justices disagreed, holding that comparison to a “no development” scenario would be unrealistic as CEQA is not a population control measure and development would simply occur elsewhere if the project is not permitted.

But, as stated by Justice Corrigan in the dissent, the Court’s approval of this approach is “illusory” given the lack of deference provided to CDFW by the majority. The EIR/EIS analysis found that the project would result in a 31 percent reduction below business as usual estimates and that because this reduction exceeded the reductions needed to achieve the AB 32 goal, the greenhouse gas impact would be less than significant. Rather than deferring to the agency, the majority determined the analysis was inadequate because the EIR did not demonstrate “a quantitative equivalence between the Scoping Plan’s statewide comparison and the EIR’s own project-level comparison.”

The feasibility of providing evidence of this “quantitative equivalence” was questioned by both Justice Corrigan and Justice Chin, who would have found that CDFW did not abuse its discretion. According to the majority, in order to use compliance with the Scoping Plan as a threshold, the lead agency must “review the data behind the Scoping Plan’s business-as-usual model” and then “determine what level of reduction from business as usual a new land use development at the proposed location must contribute in order to comply with statewide goals.” Justice Corrigan opined that this technique would be of limited practical use. An additional consideration, noted by Justice Chin in the dissent, is that the majority “strongly hints” that the 2020 goal contained in the Scoping Plan will soon be insufficient and projects will need to meet a different goal established for a date beyond 2020. Thus, the usefulness of the Scoping Plan as a threshold is extremely limited with an upcoming (but unknown) expiration date.

The majority also took issue with the EIR’s use of the housing densities in the Santa Clarita Valley when determining the “business as usual” figure because those densities may not have been contemplated by the Scoping Plan. Justice Corrigan and Justice Chin agreed that this critique was “both hyper technical and insufficiently deferential.” Given the lack of agreement among experts about the level of greenhouse gas reduction needed at the project level, Justice Corrigan and Justice Chin would have resolved any reasonable doubts in favor of the agency’s decision.

The majority then offered two other approaches for conducting a greenhouse gas analysis, though it noted that it did not “guarantee that any of these approaches will be found to meet CEQA’s demands.” First, the lead agency can show consistency with the AB 32’s statewide goal by demonstrating compliance with regulatory programs designed to reduce greenhouse gas emissions for particular activities. Because the Scoping Plan does not propose statewide regulation of land use planning, the majority stated that local governments bear the primary burden of evaluating a land use project’s impact on greenhouse gas emissions. This can be achieved by referencing climate action plans or emission reduction plans that are developed at the local level, if the agency is fortunate enough to be considering a project in an area that has these plans in place. Second, a lead agency may rely on existing numerical thresholds of significance, like those created by the Bay Area Air Quality Management District (BAAQMD). However, since the BAAQMD thresholds were created specifically for the Bay Area, they will be of little use to projects that are being developed in other regions.

Next, the majority addressed the EIR/EIS’s mitigation measures that would allow U.S. Fish and Wildlife Service personnel to rescue stranded stickleback, a fully protected species under Fish and Game Code section 5515, subdivision (b)(9) and an endangered species under the California Endangered Species Act. The majority held that the measures authorized a taking prohibited under subdivision (a) of section 5515. In particular, the majority focused on the provision of subdivision (a) that allows fully protected fish to be possessed for “scientific research,” the definition of which does not include actions taken as part of specified mitigation for a project. The majority viewed this provision as a stricter requirement for fully protected species that supersedes Fish and Game Code section 2061, which allows the trapping and transplantation for endangered species to move them out of harm’s way. Based on the legislative history and statutory language, the majority did find that Fish and Game Code section 5515, subdivision (a) allows the trapping and transportation of fully protected fish species as part of a species recovery program, as long as these actions are not specified as project mitigation measures. Justice Chin dissented and would have held that trapping and transplantation to protect a species is distinct from the permanent catch and capture of a “take.”

Finally, the majority held that under the circumstances of this case plaintiffs exhausted their administrative remedies regarding certain claims by raising them during a comment period on the final EIS initiated by the US Army Corps of Engineers under NEPA. The majority classified this as CDFW creating an “optional comment period” on the final EIR under CEQA. The majority noted, however, that this was not a larger holding about EIR/EISs but pertained to the circumstances here, in which CDFW participated in the post-final EIS/EIR process, included responses to the late comments, and made responsive changes to the final EIR it certified.

Both Justice Chin and Justice Corrigan expressed concern about the delay caused by the majority’s opinion, noting that the litigation had already delayed the project by 5 years with further delay to come. Justice Corrigan wondered whether CEQA was becoming “a moving target, impossible to satisfy” while Justice Chin noted that “California’s environmental laws are not intended to prevent development that is needed to accommodate the state’s growing population.” Because of the majority’s decision, the 58,000 people who will eventually be housed by the Newhall Ranch project will continue to wait for a project that has been thoroughly reviewed and fully-permitted for 5 years.

Key Point

A lead agency that uses a greenhouse gas emissions threshold that relies on the AB 32 Scoping Plan must include evidence in the record that similar projects with similar impacts were contemplated by the Scoping Plan. If that is not possible, which will be likely for many projects, the lead agency should use one of the other two methods provided by the Supreme Court for analyzing greenhouse gas emissions: demonstrating compliance with regulatory programs designed to reduce emissions or using a quantitative threshold. However, the Court noted that these methods were not guaranteed to be acceptable. Additionally, a mitigation plan for a project cannot include measures that call for the relocation of fully protected species.

CITY OF SAN JOSE’S LANDFILL EIR UPHELD BY COURT

Wednesday, December 9th, 2015

In an unpublished opinion, City of Milpitas v. City of San Jose, 2015 Cal. App. Unpub. LEXIS 8610, the Sixth Appellate District upheld the City of San Jose’s Environmental Impact Report (EIR) prepared for the Newby Island Sanitary Landfill and Recyclery. The programmatic EIR assessed the impacts of: (1) increasing the maximum elevation of the landfill to increase the landfill’s capacity; and (2) rezoning the landfill area and Recyclery to conform to existing and proposed landfill activities.

The Court first determined that the document qualified as a programmatic EIR because it involved a comprehensive rezoning and because specific details about construction and operation were not available for a number of uses proposed as part of the project, requiring further environmental review.

Applying the substantial evidence standard of review, the Court rejected the City of Milpitas’ allegation that the City of San Jose utilized an improper baseline that incorporated changes proposed by the project into its assumptions. One of the three baselines considered in the EIR was the “existing conditions (as they are today on the ground, including proposed changes to existing operations).” The Court found that this baseline was appropriate because the EIR first considered the existing conditions and then analyzed the effects of the proposed rezoning at a “first-tier level of detail.”

The Court next addressed whether the impact analysis was adequate. With regard to the light impact analysis, the Court found that, as a program-level document, the City of San Jose’s analysis was proper. The final EIR expressly called for further environmental review for many uses that would be allowed by the rezoning, including expansion of landfill yard activities and construction of new structures. The structures would presumably comply with the City of San Jose’s lighting policy and design guidelines and any potentially significant project-specific impacts would be identified and mitigated as part of later environmental review.

The Court then turned to the EIR’s noise analysis. The City of Milpitas alleged that the final EIR would allow the relocation of certain landfill activities within an identified California clapper rail buffer and the relocation of such landfill activities was not properly analyzed in the EIR. The Court deferred to the City of San Jose’s interpretation of the buffer and found that the project would have no significant operational noise or vibration impacts. To the extent that the City of Milpitas also challenged the use of existing noise conditions in determining whether new uses would be substantially louder, the Court found that the existing noise levels were appropriately part of the environmental baseline.

On the odor analysis, the Court rejected the City of Milpitas’ argument that the final EIR failed to follow the air district’s significance thresholds for odor. The Court held that because the final EIR effectively treated odor impacts as potentially significant and identified mitigation measures to counteract those impacts, any deficiency in compliance with the air district’s guidelines threshold of significance was harmless. The City of Milpitas’ allegation that the EIR failed to analyze the odor impacts of increased landfill gas emissions was also rejected by the Court; the expert conclusion in the record was not contradicted by other expert evidence. The Court also rejected arguments raised by the City of Milpitas regarding volatile organic compounds and sulfur oxides because they were forfeited for failure to exhaust administrative remedies. Even assuming the City of Milpitas had not forfeit those arguments, the Court held that it had not provided any expert evidence to support its assertions on appeal.

Finally, the Court rejected the City of Milpitas’ assertion that the EIR’s project objectives were drawn so narrowly that they precluded effective analysis of alternatives to the project. The Court recognized that CEQA does not forbid site-specific project objectives and found that the site specific nature of the EIR’s project objectives did not preclude effective alternatives analysis. The Court also held that the City Council’s conclusion that none of the alternatives was feasible was supported by substantial evidence.

FIRST APPELLATE DISTRICT FINDS AGENCY APPROVAL OF 10-YEAR MINING LEASES FAILED TO PROPERLY CONSIDER THE PUBLIC TRUST DOCTRINE

Friday, November 20th, 2015

In San Francisco Baykeeper Inc. v. California State Lands Commission, 2015 Cal. App. LEXIS 1024, the First Appellate District rejected several CEQA challenges to the California State Lands Commission (SLC)’s approval of 10-year sand mining leases, but reversed the trial court on this issue of whether SLC failed to properly consider the public trust doctrine in approving the leases.

In October 2014, the SLC certified the Final EIR and approved the San Francisco Bay and Delta Sand Mining Project, which authorized mining from submerged lands under the San Francisco Bay. San Francisco Baykeeper, Inc. (Baykeeper) challenged the EIR, alleging (1) the baseline was not supported by the record; (2) the SLC failed to analyze properly project impacts on soil erosion and to recirculate; (3) the SLC selected an improper threshold for determining the impact on mineral resources; and (4) that the SLC failed to notify and consult with other responsible agencies.

First, the court held that the SLC’s use of a five-year average of annual mining volumes to establish the baseline condition was proper because it more accurately reflected true baseline conditions and was supported by substantial evidence. Baykeeper argued that this baseline was artificially inflated and did not reflect the conditions as they existed when the agency began its environmental analysis in 2007. The SLC countered that the five-year average was a better indicator of existing mining conditions than the 2007 rate in light of the financial crisis and an unusual drop in mining volume that year. The court agreed, noting that neither CEQA nor the CEQA Guidelines mandate a uniform, inflexible rule for determining the existing conditions baseline.

Second, the court rejected Baykeeper’s assertion that the Final EIR did not adequately analyze the cumulative environmental impacts of commercial sand mining on coastal beach erosion and sedimentation. The court held that the Final EIR’s determination that the mining activity in question would not have a significant impact on coastal erosion was based on substantial evidence. Specifically, the court pointed to additional studies conducted in response to comments on the Draft EIR. Baykeeper argued that these additional studies constituted significant new information, and therefore the SLC was required to recirculate the Final EIR. The court again disagreed, finding that the SLC’s decision not to recirculate was supported by substantial evidence because the new information did not alter any of the substantive conclusions from the Draft EIR. While the parties disagreed about how the studies should be interpreted, the court discounted this as a “battle of the experts.”

Third, the court upheld the Final EIR’s “mineral resources” impact analysis. Baykeeper contended that the SLC improperly deviated from the CEQA Guidelines Appendix G thresholds for measuring impacts on mineral resources, reasoning that Appendix G mandated that the Final EIR evaluate the impact resulting from the allegedly permanent depletion of sand minerals. The court disagreed, stating that the thresholds of significance in Appendix G are only a “suggestion,” and agencies have discretion to develop project-specific thresholds. The court found that SLC’s threshold, which required analysis of impacts on access to mineral resources but not the depletion of those resources, was consistent with existing state policy regarding mineral extraction.

Fourth, the court held that SLC violated CEQA by failing to consult with other trustee agencies, such as the Coastal Commission and the City of San Francisco. However, the court held this violation was not prejudicial because it did not result in the omission of pertinent information from the environmental review process.

In addition to the CEQA challenges, Baykeeper alleged that SLC failed to fulfill its public trust duty because it did not make any findings that approval of the leases was consistent with existing public trust uses. Here, the court agreed, rejecting SLC’s arguments that private sand mining is a categorical per se public trust use, that mining leases do not deplete a trust resource, or that CEQA compliance displaced any independent duty to perform a public trust analysis. Because the SLC failed to fulfill its affirmative duty to “take the public trust into account . . . and to protect public trust uses whenever feasible,” the court reversed and directed the trial court to grant the writ of mandate on this issue.

Key Point:

Agencies have discretion when establishing a baseline, especially in situations where environmental conditions vary from year to year. When developing thresholds of significance, CEQA does not require agencies to use the suggested thresholds in Appendix G. For projects that might adversely affect traditional public trust uses, the agencies administering the land have an affirmative duty to consider the public trust as part of the CEQA review process

NEW GUIDANCE ON BASELINES WHEN PROJECT IS REUSING OR REPLACING AN EXISTING BUILDING

Wednesday, October 28th, 2015

On October 9, 2015, the Court of Appeal partially published the Fourth Appellate District’s opinion in North County Advocates v. City of Carlsbad (2015) 2015 Cal.App.LEXIS 891 (North County).

The published portion of the opinion discusses an important exception to the traditional baseline determination under the California Environmental Quality Act (CEQA). Generally, the baseline consists of “the physical environmental conditions in the vicinity of the project, as they exist at the time … environmental review is commenced.”  (CEQA Guidelines, § 1525, subd. (a).)  However, there is an alternative approach in which the lead agency may look back to historic conditions to establish a baseline.  (See Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 327-328; Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 337-338.)

In North County, the City of Carlsbad applied this approach to a commonly occurring situation—renovation or replacement of an existing building that was previously fully occupied and is now vacant or minimally occupied.  The project at issue was the demolition and reconstruction of an existing department store that had been vacated in 2006 and was now only periodically occupied by seasonal retail.  Despite that fact, the City established a traffic baseline using data from when the store was fully occupied.  The Court found this decision was within the City’s discretion and that the selected baseline was supported by substantial evidence.

Because the building had previously been occupied and had generated significant amounts of traffic, the Court distinguished this situation from cases in which the baseline was based on hypothetical conditions that were permissible pursuant to an existing plan or regulation but had not actually occurred “on the ground.” The Court held that due to the fluctuating occupancy of the building, the City had discretion “to consider conditions over a range of time periods” to account for a “temporary lull or spike in operations.”

Key Point:

A lead agency has the discretion to consider conditions over a range of time periods when determining baseline conditions for an existing facility with variable levels of historic operations. The lead agency’s determination should be upheld if supported by substantial evidence.

Appellate Court Reverses Injunction for La Jolla Hillside Revegetation Project

Tuesday, February 17th, 2015

In an unpublished opinion in CREED-21 v. City of San Diego, the California Fourth District Court of Appeal reversed in large part the trial court decision granting an injunction and other relief for violation of the California Environmental Quality Act (CEQA) relating to emergency repair and subsequent revegetation of a hillside and storm drain in La Jolla.

The City of San Diego (City) initially proposed a project that included replacing a damaged storm drain pipe and revegetating of the surrounding hillside. Before the environmental review was complete, the storm drain failed, causing significant erosion of the hillside. Due to public health and safety concerns and the need for immediate repairs, the City issued an emergency determination of environmental exemption.

The emergency repair of the storm drain did not include revegetation of the steep hillside. The City concluded the revegetation project would result in no significant environmental impacts and therefore qualified for the common sense exemption from CEQA. CREED filed a writ petition alleging the project was not exempt from CEQA, and the trial court granted an injunction stopping the revegetation project pending further environmental review.

The appellate court held that baseline conditions existed at the point in time after the emergency repair, not at the time the City initially proposed the storm drain repair project. The court reasoned the emergency repair was an “intervening and superseding event” and the existing environment under CEQA is comprised of the physical conditions that “will be affected by the proposed project.” Because the emergency repair project was exempt from CEQA, any future work on the site was required to consider the environment the project would actually affect, which in this case was the post-repair hillside.

After holding CREED only had standing to challenge the CEQA exemption for the revegetation project and not the storm drain repair project, the court held substantial evidence supported the City’s determination that the common sense CEQA exemption applied to the revegetation project. The revegetation project consisted of planting native plants on an otherwise bare hillside. As a result, there was no possibility the revegetation project would have a significant adverse effect on the environment. The court also held CREED did not meet its burden of showing the unusual circumstances exception applied to the CEQA exemption in this case.

In the final portions of the court’s opinion, the court held the City did not violate CREED’s due process right when responding to its California Public Records Act request. The court upheld the trial court’s denial of the City’s untimely and incomplete request for judicial notice of a City ordinance authorizing an appeal fee and required the City refund CREED’s $100 appeal fee.  The court also declined to impose sanctions on the City.

Appellate Court Upholds EIR for Perris Dam Remediation Project in Riverside County

Tuesday, November 18th, 2014

In Paulek v. California Department of Water Resources, 2014 Cal. App. LEXIS 999, the Court of Appeal for the Fourth District upheld the trial court’s denial of a writ of mandate challenging the Department of Water Resources’ (Department) approval of an environmental impact report (EIR) for a dam remediation project at Perris Dam in Riverside County.

Following a 2005 study of the dam’s foundation that found structural deficiencies, the Department developed a three-part plan for long-term improvements. The three parts included: 1) fixing the structural deficiencies in the dam’s foundation; 2) replacing the facility’s outlet tower; and 3) constructing a new emergency outlet extension. Despite an initial notice of preparation of a draft EIR that included all three parts, the final EIR did not include construction of the emergency outlet extension. Petitioner sought a writ vacating the Department’s approval of the EIR.

After establishing the petitioner had standing to bring the lawsuit, the court rejected petitioner’s argument that removal of the emergency outlet extension from the final EIR left a significant environmental impact unmitigated. The California Environmental Quality Act (CEQA) only requires a public agency to mitigate the environmental impacts of “projects that it carries out or approves.” The court found the danger from the current emergency outlet extension existed regardless of whether the seismic improvements were made to the other portions of the dam. As a result, the flooding danger was part of the baseline condition that did not fall within the mitigation requirements of CEQA.

The court also rejected petitioner’s argument that removal of the emergency outlet extension into a separate CEQA analysis constituted improper segmentation. While CEQA prohibits “piecemeal” review of projects to avoid a cumulative significant impact, the court found the emergency outlet was a distinct project. It was not a “reasonably foreseeable consequence” of the dam remediation and tower rebuilding because those two projects could occur and remedy the structural deficiencies without the emergency outlet extension. The outlet extension was also not an integral part of same project and not a future expansion of the dam remediation and tower rebuilding that would change the scope of their impacts. Accordingly, the project was not improperly segmented.

Finally, the court found the Department’s responses to petitioner’s comments on the EIR were adequate. Petitioner’s comments did not point to specific deficiencies in the EIR; rather, the comments generally stated the EIR was inadequate and expressed the need for mitigation. The court held the Department’s reference to portions of the EIR addressing petitioner’s concerns were sufficient stating, “a general comment only requires a general response.”

KEY POINT

The court reiterated the standard for improper segmentation of CEQA projects. Although CEQA defines project broadly in favor a comprehensive environmental review, public agencies have discretion to remove discrete portions of a project from the final EIR, even if the removed portion was included in the initial notice.

California Supreme Court Issues Neighbors for Smart Rail Decision: Predicted Conditions Baseline Allowable Under CEQA in Limited Circumstances

Monday, August 5th, 2013

In a much anticipated decision, the California Supreme Court held in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority that lead agencies can use future predicted conditions as an environmental baseline in assessing the impacts of proposed projects. The court held that in order for an agency to omit the normally required existing conditions baseline analysis and rely solely on a predicted conditions baseline, it must first demonstrate that the existing conditions analysis would be uninformative or misleading. In doing so, the court disapproved of the holdings in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (Sunnyvale) and the Fifth Appellate District’s decision in Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 (MOC).

The dispute in Neighbors for Smart Rail originated over the second-phase of a transit project called the Exposition Transit Corridor, a proposed light rail line connecting downtown Los Angeles with Santa Monica. The Exposition Metro Line Construction Authority (“Expo Authority”) approved the project on February 4th,
2010.

The central issue in the case is the environmental baseline that was used to evaluate traffic, air quality, and greenhouse gases. CEQA Guidelines section 15125(a) states that an EIR “must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, … [t]his environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.” Lead agencies have relied on the use of the word “normally” in the guideline to use environmental baseline based on conditions that exist after the publication of a notice of preparation (“NOP”). This typically happens for large projects that will be constructed over a long period of time. Lead agencies often argue that a future environmental baseline reflecting the likely conditions in which the project will be built gives a more accurate assessment of the project’s impacts.

The Supreme Court addressed a related environmental baseline issue in Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310 (“CBE”). There, the court held that a petroleum refinery project must use actual historical emissions as its environmental baseline for evaluating a proposed expansion; it was impermissible to use maximum permitted capacity as a hypothetical baseline. The court noted that neither CEQA nor the CEQA Guidelines “mandates a uniform, inflexible rule for determination of the existing conditions baseline. Rather, an agency enjoys the discretion to decide, in the first instance, exactly how the existing physical conditions without the project can most realistically be measured, subject to review, as with all CEQA factual determinations, for support by substantial evidence.” The court did not address whether a future baseline reflecting an agency’s projected environmental setting could be used as the basis for analysis in an EIR.

Since CBE, two appellate districts have held that agency’s may not use a projected environmental setting beyond the date of project approval. The Sixth Appellate District’s decision in Sunnyvale and the Fifth Appellate District’s decision in MOC both held that projected future conditions provide an improper baseline for determining traffic impacts.

In preparing the EIR for the Exposition Transit Corridor, the Expo Authority determined that a 2009 baseline (when the NOP was published) would not provide a reasonable basis for determining the project’s traffic and air quality impacts. The EIR instead uses a 2030 baseline that the agency determined based on projected changes in the environmental setting between 2009 and 2030. This approach would be a clear violation of CEQA under Sunnyvale or MOC.

The Second District disagreed with the Sunnyvale and MOC opinions and upheld the Expo Authority’s use of a future baseline. The Second District held that “in a proper case, and when supported by substantial evidence, use of projected conditions may be an appropriate way to measure the environmental impacts that a project will have on traffic, air quality and greenhouse gas emissions. As a major transportation project that will not even begin to operate until 2015 at the earliest, its impact on presently existing traffic and air quality conditions will yield no practical information to decision makers or the public.”

The Supreme Court struck a balance between the split in the appellate districts. The court agreed with the Second District, and correspondingly disapproved of Sunnyvale and MOC, in holding that agencies may rely solely on a predicted conditions baseline. The court’s decision also imposes a new requirement that will result in a more restrictive use of future baselines than what would have otherwise been permissible under the Second District’s ruling. The court held that agencies can rely solely on a predicted conditions baseline only after they justify the omission of an existing conditions baseline. Before an agency can eliminate an analysis based on existing conditions, it must first determine, based on substantial evidence, that the inclusion of an existing conditions analysis would be misleading or without informational value.

The court stated, “[t]o the extent a departure from the ‘norm[]’ of an existing conditions baseline (Guidelines, § 15125(a)) promotes public participation and more informed decisionmaking by providing a more accurate picture of a proposed project’s likely impacts, CEQA permits the departure. Thus an agency may forego analysis of a project’s impacts on existing environmental conditions if such an analysis would be uninformative or misleading to decision makers and the public.”

The court then applied this rule to the present case and held that, while Expo demonstrated that a predicted baseline was a more informative analysis, there was no evidence in the record that an existing conditions analysis would have been uninformative or misleading. The court implied that in this case, the lead agency should have analyzed the project’s impacts against an existing conditions baseline as well as a predicted baseline. Nonetheless, the court held that under these circumstances, the omission of an existing conditions baseline did not deprive decision makers or the public of substantial information relevant to approving the project, and was therefore a non-prejudicial error.

The court also upheld the adequacy of mitigation for spillover parking effects, which was the only other issue before the court. The court held that the agency made the proper findings for reliance on local jurisdictions to implement mitigation measures and that the findings were supported by substantial evidence. The Petitioner’s speculation that local agencies may not agree to permit the parking facilities was not sufficient to show that the mitigation measures violated CEQA.

Key Point: The baseline issue has important implications for all environmental review documents under CEQA as it affects the underlying basis of the analysis. After this decision, agencies have the discretion to rely solely on a predicted conditions baseline; however, in doing so, agencies must be sure to demonstrate that the inclusion of an existing conditions baseline would be uninformative or misleading. It is not enough to show that the predicted conditions baseline is supported by substantial evidence or that it is more informative than the existing conditions baseline. Agencies would be wise to include explicit findings in their project approval documents supporting the determination to rely solely on a predicted conditions baseline.

A Dark Day for Hoover High School – Court Finds Mitigated Negative Declaration for Stadium Improvements Inadequate

Tuesday, May 7th, 2013

In a decision that was ordered published on April 25, 2013, Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (March 26, 2013) 2013 Cal.App.LEXIS 324, the Court of Appeal, Fourth Appellate District, held that a high school could not use general obligation bond revenue to pay for new stadium lighting because the bond measure approved by voters did not specifically include new stadium lighting. The court further held that, under the California Environmental Quality Act (CEQA), the School District (District) improperly relied on a Mitigated Negative Declaration (MND) and instead was required to prepare an Environmental Impact Report. The court found evidence in the record sufficient to constitute a fair argument that the project may have significant environmental impacts due to increased traffic and parking demand. In reaching its conclusion regarding parking, the court disagreed with the Second Appellate District’s holding in San Franciscans Upholding the Downtown Plan v. County of San Francisco (2002) 102 Cal.App.4th 656 that parking need only be considered a secondary impact under CEQA. In addition, the court upheld the MND’s project description and its analysis of aesthetics and historic resources. Lastly, the court upheld the District’s action exempting its 12 high schools from local zoning and land use laws, and held that such an action was not a “project” under CEQA.

On July 23, 2008, the District Board of Education (Board) approved Proposition S, authorizing the District to sell up to $2.1 billion in general obligation bonds for the construction, reconstruction, or replacement of school facilities, including a project to upgrade Hoover High School athletics facilities (project). The project would include football stadium bleacher replacement and new lighting for the football field. The District completed an initial study and the Board adopted a mitigated negative declaration (MND) finding there was no substantial evidence the project, as mitigated, would have a significant effect on the environment. Additionally, the Board adopted a resolution exempting projects at Hoover and 11 other high schools from city zoning and land use laws.

The court first looked at whether the District could use Proposition S funds to provide new stadium lighting at Hoover High School. The voters’ pamphlet description of Proposition S enumerated specific projects that would be funded by the bonds. The pamphlet included the words “field lighting,” however, the court held that the measure only provided lighting costs that were necessary for the completion of the enumerated projects, which did not include new stadium lights.

Regarding the CEQA claims, Taxpayers alleged the project description was misleading and caused the District to underestimate the project’s potential environmental impacts. Specifically, Taxpayers argued the description of the anticipated number of evening events to be held at the football stadium after project completion was misleading. The court disagreed, explaining that CEQA only required the District to make a “fair assessment or “estimate” of the number of evening events and that the District’s estimate was adequate. Additionally, the court held CEQA does not require the District to limit evening events to a finite number in the project description.

Taxpayers also argued the MND was flawed because it improperly calculated evening event attendance. The District used zero as a baseline for attendance at evening events because no evening events currently existed. The District then calculated the expected attendance after completion of the project based on the average attendance at football games at five of the District’s 16 high schools. The court found this methodology flawed because the baseline should have taken into consideration attendance of afternoon games at Hoover High School and the record lacked evidence to support the estimated attendance. The court held the District was therefore unable to adequately compare the baseline attendance to expected attendance in determining whether there was a fair argument that the project may have significant impact on traffic and/or parking.

The court also agreed with Taxpayers that an EIR was required for the project because a fair argument could be made that the project may result in significant parking and traffic impacts. The court disagreed with the District’s assertion that parking impacts do not constitute a significant impact on the environment under CEQA. In doing so, the court expressly disagreed with a Second Circuit opinion, San Franciscans Upholding the Downtown Plan v. County of San Francisco (2002) 102 Cal.App.4th 656, which held that parking was merely a social inconvenience that could only be addressed under CEQA as a secondary impact, if at all. The court pointed to CEQA Guidelines explaining that while the guidelines do not set forth an exclusive list of all potential impacts that must be addressed if “substantial evidence of potential impacts that are not listed . . . must also be considered.” (Guidelines, append. G.) The Court held that parked cars are physical objects and can therefore have a direct impact on the physical environment. The court explained personal observations and opinions of local residents constituted substantial evidence that the project may have a significant impact on parking and therefore parking impacts should have been treated as a direct physical impact.

The court also found there was substantial evidence to support a fair argument that the project may have significant traffic impacts. The court explained that, despite the District’s faulty attendance analysis (discussed above), consensus was the project would cause evening attendance to increase, and therefore a fair argument existed that the project may have significant impacts on traffic and circulation.

Lastly, the court held the Board’s adoption of a resolution exempting projects at Hoover and 11 other high schools from city zoning and land use laws was proper and was not a “project” within the meaning of CEQA. The court held the adoption of the resolution was neither an “approval” nor a “project.” It was not an “approval” because it did not commit the District to “a definite course of action in regard to a project.” (Guidelines, § 15352, subd. (a).) It was not a “project” because it was not itself “an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Resources Code, § 21065.) The term project does not mean each separate governmental approval. (CEQA Guidelines, § 15378, subd (c).) However, the actual approval of each of the 12 projects, which the resolution makes exempt from city zoning and land use laws, are considered projects under CEQA. Each will require CEQA review before approval.

Key Point:

The decision creates a split in authority concerning the requirement to analyze parking shortages pursuant to CEQA. Until the Supreme Court addresses this disagreement between First and Fourth District Courts of Appeal, the cautious approach would be to analyze potential impacts to parking as part of the environmental analysis for projects.

Appellate Court Upholds EIR Given its Discrepancies Are Minor and Present No Risk of Prejudice to the Environmental Review Process

Wednesday, November 7th, 2012

In Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184, Siskiyou County (County) approved a project to expand an existing wood veneer manufacturing facility for the cogeneration of electricity for resale.  The Mount Shasta Bioregional Ecology Center and the Weed Concerned Citizens (Plaintiffs) sought a writ of mandate against County claiming the project approval violated the California Environmental Quality Act (CEQA) because the project environmental impact report (EIR): (1) failed to adequately analyze alternatives and (2) failed to fully disclose, analyze, and mitigate air quality, noise, and water quality impacts.  The Third District Court of Appeal upheld the EIR upon finding its minor deficiencies did not prejudice the environmental review process.

CEQA requires an EIR to analyze a range of project alternatives that would reduce adverse environmental impacts and could be successfully accomplished within a reasonable period of time and attain the basic objectives of the project.  Plaintiffs contended the EIR’s analysis of the project and the “No Project” alternatives alone were not enough.  The court explained under CEQA, there is no magic number of alternatives the County must consider.  Given the circumstances of the case and the basic project objectives, the court found the alternatives analysis sufficient under CEQA.  The court also explained Plaintiffs had a burden to show the EIR failed to include a particular alternative that was potentially feasible under the circumstances, which Plaintiffs failed to meet.

Plaintiffs next contended the EIR failed to analyze and mitigate air quality, noise, and water impacts of the project.  Plaintiffs’ first claim targeted the EIR’s baseline.  CEQA guidelines require an EIR to include a description of the project’s environmental setting, which is then used as the baseline to determine whether a project’s impact is significant.  Plaintiffs claimed the EIR incorrectly relied on an approximation of emissions as opposed to actual emissions.  County responded the baseline used data representative of actual operations at the existing facility and not the maximum permitted or hypothetical rates.  Upon finding the actual and approximate emissions were nearly identical, the court concluded the seven percent difference would not “have precluded informed decision-making or … public participation,” and was therefore adequate under CEQA.

Plaintiffs’ complaint regarding noise impacts consisted of several separate issues, all of which were rejected, mostly due to no substantial evidence and legal support.  One claim was the EIR lacked evidence supporting its conclusion that project noise impacts will be less than significant.  Plaintiffs claimed the EIR should have included a 24-hour noise study to determine if outdoor noise is already excessively loud, instead of “just a few 15-minute noise level measurements.”  The court explained there is nothing requiring a 24-hour measurement rather than periodic sampling during a 24-hour period.  Plaintiffs also alleged a failure to look at the cumulative noise impacts in Weed.  Given a significant cumulative noise impact already existed in Weed, and the project would add very little noise to that total, the court upheld the EIR’s determination that the Project’s cumulative noise impacts would be less than significant.  Lastly, Plaintiffs argued the County should have recirculated the EIR after two “significant new noise reports” were added to it.  If new information is added to an EIR after completion of the public comment period, the lead agency must recirculate the EIR with a new comment period.  The court noticed while the Draft EIR did not include the studies, it did identify both reports and include a summary of the findings.  Inclusion of the two reports in their entirety thus did not constitute adding significant new information.  Recirculation was not necessary.

Plaintiffs’ last claim alleged the EIR failed to include an adequate description and analysis of the impacts on water quality and usage.  Plaintiffs did not provide legal or factual bases to show future water use will change, and presented nothing to refute the Final EIR’s conclusion that the Project’s water use would be consistent with historical practice and adjudicated water rights.  The court also held Plaintiffs’ argument regarding the Project’s water usage was a difference of opinion as to how the project’s cooling tower will operate, which is no ground for setting aside County’s approval of the EIR.

Key Point:

When examining an EIR, the court will generally defer to the lead agency and refuse to overturn an EIR if its minor discrepancies don’t cause prejudice to the environmental review process.  As seen in this case, the court will also refuse to set aside an EIR if the opposing party either fails to present substantial evidence of CEQA violations or fails to present evidence other than a difference of opinion.

Written By: Tina Thomas, Christopher Butcher and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Citizens for East Shore Parks v. California State Lands Commission (2011) 202 Cal. App. 4th 549

Tuesday, May 22nd, 2012

Petitioner petitioned for a writ of mandate, claiming that the California State Lands Commission (Commission) failed to comply with CEQA and the public trust doctrine in approving Chevron’s lease renewal for a marine terminal. The Superior Court denied the petition. Petitioner appealed to the First District Court of Appeal, which upheld the lower court’s decision. The Appellate Court determined de novo whether the Commission complied with CEQA requirements and gave great deference to the Commission’s substantive factual conclusions. In addressing the adequacy of the environmental baseline used in the EIR, the Court held the Commission correctly included the current and operative conditions of the terminal in the baseline even though those existing conditions had not previously been evaluated under CEQA. The Court further held that during the CEQA process, agencies can and should be allowed to make adjustments to its CEQA determinations, including determinations concerning the baseline. The Petitioner raised other issues with the Commission’s EIR, all of which the Court struck down.

Key Points:

The decision reiterates that prior illegal development is properly included as part of the environmental baseline because “[h]ow present conditions come to exist… is irrelevant to CEQA baseline determinations—even if it means preexisting development will escape environmental review under CEQA.”