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FIRST APPELLATE DISTRICT FINDS WAREHOUSE STORE PROJECT EIR FAILED TO SUFFICIENTLY ANALYZE POTENTIAL ENERGY IMPACTS IN PARTIALLY PUBLISHED OPINION

Wednesday, June 22nd, 2016

On June 21, 2016, the First Appellate District partially published its opinion for Ukiah Citizens for Safety First v. City of Ukiah (Case No. A145581). The case involved a citizen group’s petition for writ of mandate challenging the certification of an environmental impact report (EIR) by the City of Ukiah (City) for the construction of a Costco Wholesale Corporation retail store and gas station (Project).

In the published portion of the opinion, the Court addressed alleged deficiencies in the Project EIR’s energy impacts analysis. Petitioners asserted that the EIR “fails to include adequate information regarding the project’s energy use and does not comply with appendix F of the CEQA Guidelines.” Specifically, Petitioners alleged that the EIR failed to calculate the energy use attributable to vehicle trips generated by the Project and failed to calculate the operational and construction energy use of the project.

In arriving to its decision, the court relied on the standards set forth by the Third Appellate District in California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173 (CCEC), a decision that was filed after the EIR was certified and the petition was filed. Consistent with CCEC, the court found that the EIR failed to calculate the energy impacts of trips generated by the Project. The court also found that the EIR improperly relied on compliance with the California Building Code to mitigate operational and construction energy impacts, without further discussion of the CEQA Guidelines Appendix F criteria. Finally, the court found that the City inappropriately relied on mitigation measures designed to reduce greenhouse gas emissions.

While this litigation was pending and recognizing the deficiencies in its EIR based on the principles set forth in the CCEC opinion, the City adopted an addendum to the EIR. The addendum clarified the EIR’s findings on energy impacts, but did not alter the conclusions reached in the EIR. While the trial court considered the addendum over Petitioners’ objections, the appellate court found this to be an inappropriate expansion of the administrative record. The court explained that the administrative record before a reviewing court should generally only consist of evidence that was before the decision-making body when it rendered its decision. Thus, the court did not address whether the language in the addendum cured the EIR’s defects. Moreover, the court found that the City’s subsequent addendum did not cure the prior approval of an inadequate EIR because the preparation of an addendum assumes that the EIR was properly certified. Because the EIR, as certified, inadequately addressed the energy impacts of the project, the court held that recirculation and consideration of public comments concerning the energy analysis will be necessary before the EIR can be recertified.

In the unpublished portion of the opinion, the court rejected Petitioners’ remaining contentions regarding: (1) the EIR’s analysis of transportation and traffic impacts; (3) the EIR’s analysis of noise impacts; and (3) the Project’s consistency with applicable zoning requirements. The court affirmed the trial court’s decision on the remaining contentions because there was sufficient evidence in the record to support the City’s conclusions.

Key Point: Addendums can only be used to clarify, amplify, or make insignificant modifications to an adequate EIR.

COURT FINDS PROGRAMMATIC EIR FOR RETAIL DEVELOPMENT INCLUDED INADQUATE ANALYSIS OF URBAN DECAY AND ENERGY IMPACTS

Thursday, March 20th, 2014

In an unpublished opinion, California Clean Energy Committee v. City of Woodland, 2014 Cal. App. Unpub. LEXIS 1481, the Third District Court of Appeal reversed the trial court’s denial of a petition for writ of mandate to vacate the City of Woodland’s certification of an EIR for a regional shopping center.

In 2007, a developer applied to annex 154 acres of agricultural land to the City and rezone it to general commercial use in order to build a regional commercial center known as “Gateway II.” After preparing an EIR, the city council approved the project, but reduced its size to 61.3 acres. The California Clean Energy Committee, a nonprofit organization, filed a petition for writ of mandate challenging project approval and certification of the EIR.

The Committee first argued that the City’s actions in approving Gateway II violated the State Planning and Zoning Law because the project was inconsistent with the City’s General Plan policy of revitalizing its downtown.  According to the Committee, Gateway II had the potential to cause urban decay by attracting retail development to the City’s periphery. The court held the Committee had failed to preserve this argument because its complaint had focused on the CEQA implications of urban decay, and had not apprised the City of an alleged violation of the Planning and Zoning Law.

The court next considered the sufficiency of the City’s mitigation measures for urban decay under CEQA. The court upheld a measure requiring primarily “regional retail” uses at Gateway II, upholding the City’s conclusion that the measures would help lessen, although not avoid completely, the potential urban decay impacts. The court, however, agreed with the Committee that a measure requiring the developer to submit a market study and urban decay analysis for future specific projects within Gateway II improperly delegated to the applicant responsibility for studying impacts in violation of CEQA. Further, the court agreed with the Committee’s contention that the market study measure provided no performance standards for evaluating whether additional mitigation should be required, in violation of CEQA.

Additional measures the court deemed inadequate required the developer to contribute fifty percent toward the cost of a retail strategic plan and an implementation strategy for the City’s Downtown Specific Plan. The court noted that these measures committed the developer to pay fees, but the fees were not tied to any planned action that would obligate the City to undertake actual mitigation of urban decay.

The court then addressed whether the City had given sufficient consideration to a mixed use alternative to the project.  The draft EIR concluded that the alternative was infeasible due to economic considerations; however, the city council findings rejected the alternative as environmentally inferior to the project.  The court explained that there was no support for the council’s determination, since the EIR concluded that environmental impacts of the alternative would be similar to the project impacts.

Finally, the court considered the City’s treatment of energy impacts. The court noted that the EIR discussion of energy comprised less than one page; included no assessment of or mitigation for transportation energy impacts; concluded that compliance with the Building Code and CALGreen alone would adequately mitigate construction and operational energy impacts; failed to address the energy impacts of the non-retail uses proposed for the site (including office and hotel); and gave no consideration to renewable energy options. Based on these facts, the court concluded that the analysis was deficient.

KEY POINTS:

Under the court’s ruling, mitigation requiring a developer to undertake future studies of urban decay is inadequate mitigation. Instead, the agency itself must undertake the study, and some performance standard must be included to assess whether additional mitigation is needed at the time site-specific projects are considered.

In addition, an agency should not adopt a rationale different from that included in the EIR for rejecting project alternatives unless the agency’s finding is supported by substantial evidence elsewhere in the record.

Lastly, even in a programmatic EIR, this court found that CEQA’s requirement for consideration of energy impacts requires a comprehensive analysis that addresses all aspects of a project’s potential energy usage and whether renewable energy technologies can play a role in mitigating impacts.

Court Turns Tide in Favor of Desalination Plant – Holds Ample Substantial Evidence Supports the Project’s EIR

Monday, May 27th, 2013

Almost four years after the Marin Municipal Water District (MMWD) certified an environmental impact report (EIR) and approved a five million gallon a day desalination plant project, the Court of Appeal, First District, in a published opinion (N. Coast Rivers Alliance v. Marin Mun. Water Dist. Bd. of Dirs. (2013) 2013 Cal.App.LEXIS 401), reversed the trial court’s judgment and upheld the adequacy of EIR. At trial, the court determined the EIR violated CEQA in approximately a dozen ways.  Specifically, the trial court concluded the EIR included an inadequate analysis of (1) aesthetic impacts, (2) land use and planning impacts, (3) seismology impacts, (4) water quality impacts caused by shock chlorination, (5) biological impacts caused by entrainment, (6) energy impacts, and (7) greenhouse gas (GHG) emission impacts.  The trial court also concluded that the EIR proposed inadequate mitigation measures for (1) aesthetics, (2) aquatic noise and vibration, and (3) GHG emissions.  Finally, the trial court held that (1) with respect to biological resources the discussion of the existing environmental setting was insufficient, and (2) CEQA required the EIR to be recirculated because a new alternative was included in the Final EIR.  The First District reversed each of the trial court’s holdings.

With respect to aesthetic impacts, the First District stated that “[w]here an EIR contains factual evidence supporting the conclusion that aesthetic impacts will be insignificant, that conclusion must be upheld.”  Because the EIR included such facts and the Petitioners merely disagreed with them, the First District reversed the trial court. The First District also rejected the trial court’s ruling that adopting a landscaping plan as mitigation to soften visual impacts of a structure was inadequate absent a commitment to shield a specific percentage (i.e. 25%, 50%, etc.) of the structure from view.   The First District stated “‘where a public agency has evaluated the potential significant impacts of a project and has identified measures that will mitigate those impacts,’ and has committed to mitigating those impacts, the agency may defer precisely how mitigation will be achieved under the identified measures pending further study.” (Original emphasis.)

Next, the First District reversed the trial court’s holding regarding the adequacy of the land use and planning analysis.  The EIR concluded that, with the exception of one issue that was identified and analyzed in the EIR, the project was consistent with applicable local plans.  The trial court concluded a more detailed discussion of how the project would impact various county general plan policies was required.  The First District first noted that “[d]etermining whether a project is consistent with general plan policies is left to the lead agency; ‘[i]t is emphatically, not the role of the courts to micromanage’ such decisions.” (Original emphasis.)  Next, the First District explained CEQA only requires an EIR to discuss inconsistencies between a project and applicable plans, not all the ways in which a project is consistent with such plans.  “The trial court’s ruling is tantamount to requiring the EIR to provide a detailed discussion of the Project’s consistency with the plan.  CEQA includes no such requirement.”

Turning to the adequacy of the seismology analysis, the First District noted that only generic concerns regarding earthquakes were expressed during the administrative process.  The EIR’s analysis of potential seismology related impacts more than adequately responded to those comments.

The Fist District next rejected the trial court’s conclusion that the EIR’s discussion of potential water quality impacts caused by process used to clean the pipeline (known as shock-chlorination) was inadequate.  The First District began its analysis by stating that “[u]nder the substantial evidence standard, the ‘question is whether [MMWD] reasonably and in good faith discussed [shock-chlorination] in detail sufficient for the public to discern from the []EIR the ‘analytical route … agency traveled from evidence to action.’’” The First District concluded the EIR did.  The First District also rejected the Petitioners argument that it was improper for MMWD to rely on evidence outside of the EIR to support the less than significant impact conclusion reached by the EIR; “when an EIR contains a brief statement of reasons for concluding an impact is less than significant, then the petitioner has the burden of demonstrating ‘the conclusion was not supported by substantial evidence in the administrative record.’” (Original emphasis.)

At trial, the court was particularly critical of the EIR’s conclusions that biological resources impacts caused by entrainment were less than significant. The First District once again disagreed.  The EIR discussed a variety of field sampling techniques employed to evaluate potential entrainment impacts.  The First District stated that “[f]ield sampling is often the sole evidence relied on by lead agencies in evaluating a project’s biological impacts.”  Therefore, “[u]nder the substantial evidence standard of review, the District’s initial sampling effort was more than adequate.”  Nevertheless, MMWD even went further and conducted a year-long pilot-scale desalination program.  NOAA Fisheries and CDFG expressed concerns with one aspect of data collected during the year-long pilot program.  Petitioners argued that MMWD’s decision not to follow the recommendations made by NOAA Fisheries and CDFG rendered the analysis inadequate.  The trial court agreed; however, the First District explained that “[t]his ruling ignores the substantial evidence standard of review.”  Based on the substantial evidence standard, “[t]he issue is not whether other methods might have been used, but whether the agency relied on evidence that a ‘reasonable mind might accept as sufficient to support the conclusion reached’ in the EIR.” MMWD did.  Therefore, notwithstanding the disagreement with NOAA Fisheries and CDFG, the analysis was adequate for the purposes of CEQA.  Additionally, in part because the environmental setting relied on the same biological resource data that the First District found sufficient, it held  “the EIR’s description of the environmental setting was more than adequate.”

The First District also concluded the mitigation measure proposed to address the project’s potentially significant aquatic noise and vibration impact was adequate.  The trial court found that the measure was not sufficiently specific.  The First District disagreed.  The Court explained that “the commitment to undertake consultation with NOAA Fisheries does not impermissibly defer to the future the identification measures.  Consultation with NOAA Fisheries must occur, both as part of the federal permitting process under the CWA and ESA, and under the express terms of the mitigation measure.  Such mitigation is adequate under CEQA.” (Original emphasis.)

Next, the First District rejected the trial court’s conclusion that the EIR should have included a green energy alternative.  The Court explained that “alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the project.” (Original emphasis.)  The EIR concluded the project’s energy impacts were less than significant and the trial court held that conclusion was supported by substantial evidence. Therefore, “the EIR did not need to discuss further green energy credits as an alternative mitigation measure for the energy impacts of the Project.”

With respect to the GHG analysis, the First District reversed the trial court. Based on Assembly Bill No. 32 and MMWD’s own more aggressive goal to reduce GHG emissions, the threshold used in the EIR was whether the project would interfere with Marin County’s goal of reducing GHG emissions to 15 percent below 1990 levels by 2020.  The EIR concluded the project would not interfere with achieving that goal and, as a result, the project’s cumulative contribution was less than significant.  Additionally, in approving the project, the MMWD Board adopted a policy requiring all project-related GHG emissions be offset and the evidence demonstrated this policy commitment was feasible.  The Court also concluded the analysis and policy commitment were supported by substantial evidence.  Therefore, Petitioners’ challenge constituted nothing more than a disagreement with the conclusion reached in the EIR.  Such disagreement does not render an EIR inadequate.

Finally, Petitioners argued and the trial court agreed that the inclusion of a new alternative in the Final EIR required the EIR to be recirculated before certification.  The First District again disagreed.  The Court noted that “recirculation is ‘an exception rather than the general rule.’”  Therefore, “[a]n agency’s decision not to recirculate the draft EIR is entitled to substantial deference.”  The Court found that substantial evidence demonstrated that the new alternative was neither considerably different from other alternatives included in the Draft EIR nor feasible.  The alternative also failed to meet one of the project’s basic objectives.  As substantial evidence supported the finding that the alternative was not feasible, the First District concluded its inclusion in the Final EIR did not trigger recirculation.

The First District, therefore, reversed the trial court’s judgment against MMWD in its entirety.

Key Point:

Due to the substantial number of issues raised in this appeal, this decision is extremely helpful for lead agencies and project proponents. The decision helps to clarify the meaning and application of the substantial evidence standard of review in CEQA litigation. The decision also demonstrates that disagreements between a lead agency and other responsible and/or trustee agencies do not render an EIR inadequate. The decision further emphasizes that an EIR’s analysis of less than significant impacts need only be brief and a conclusion of less than significant may properly be supported by evidence outside the EIR and contained elsewhere in the administrative record. Finally, the decision supports the conclusion that 15% below 1990 GHG emissions by 2020 is an adequate significance threshold for analyzing GHG impacts.

Written By: Tina Thomas and Christopher Butcher

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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.