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Second District Court of Appeal Rejects Challenge to Los Angeles Oil Refinery EIR

Wednesday, April 22nd, 2020

In Communities for a Better Environment v. South Coast Air Quality Management Dist. (2020) 2020 Cal.App.LEXIS 285, the Second District Court of Appeal denied a citizen group’s appeal of the trial court’s judgment rejecting their challenge to Tesoro’s oil refinery project in Los Angeles County.

The Los Angeles Refinery Integration and Compliance Project (Project) involves improving the integration of two adjacent Tesoro oil refining facilities in Carson and Wilmington. The Project would increase Tesoro’s flexibility in altering the ratio of outputs, such as gasoline and jet fuel, and would ensure compliance with air quality regulations. Primarily, the Project would reduce pollutant emissions from “burners” which heat petroleum during production. The Project would also shut down the Wilmington Fluid Catalytic Cracking Unit, a major pollution source which converts heavy hydrocarbons into lighter ones; install new pipelines; modify equipment; install new storage tanks; and change the thermal operating limit of a heater in the Wilmington facility. Additionally, the Project upwardly adjusts operating heat limits and permit ranges to match industry standards. Preliminarily, the Court noted that the heat limits and permit ranges would result in no physical changes to the Wilmington heater or other hardware, though it would potentially allow for the processing of a heavier blend of crude oil or increase throughput by 6,000 barrels per day—but not both.

In September 2014, the South Coast Air Quality Management District (SCAQMD) issued an Initial Study and NOP on the Project. In March 2016, SCAQMD circulated an approximately 1,700-page DEIR for public comment and extended the public review period to 94 days (49 days over the statutorily required 45-day circulation period). SCAQMD received over 2,000 comments on the report; the vast majority of which were positive. Communities for a Better Environment (Petitioner) submitted over a thousand pages of comments on the Project, to which SCAQMD responded. Following certification of the EIR, Petitioner filed suit, alleging that the Project EIR used the wrong baseline, failed to explain its estimated barrel per day increase, and failed to disclose the existing volume of crude oil the refinery processes as a whole or the refinery’s unused capacity. Petitioner also alleged that SCAQMD failed to obtain information about the pre-Project composition of crude oil that the refinery processes, merely finding the post-Project input would remain within the refinery’s “operating envelope.” The trial court rejected these arguments and denied the writ, and Petitioner timely appealed.

The Court found that the EIR used the appropriate baseline. SCAQMD relied on a near-peak (98th percentile) method by collecting information on the refinery’s worst air pollution emissions during a two-year period and excluded the top 2% of the data to remove “extreme and unrepresentative outliers.” The remaining data was used to compare actual pre-Project near-peak emissions with projected peak emissions due to Project activities. Petitioner argued for the use of an average-value baseline. SCAQMD rationalized that the near-peak baseline would measure and control the most significant Project-related health and pollution dangers. The Court held that substantial evidence supported SCAQMD’s baseline approach because the near-peak baseline matches the EPA’s baseline approach and because the baseline takes demand fluctuations into account. Petitioner argued that relying on the federal approach was misguided due to the differing purposes between federal regulations (which regulate air pollution) and CEQA’s baseline requirement (which, “is meant to establish pre-project conditions to compare with post-project operations”). The Court rejected this argument, acknowledged the benefits of following the EPA methodologies, and held that, because California’s environmental goals “to protect the public health and welfare” were “identical” to those of the EPA, the EPA’s methodologies were acceptable. The Court concluded that the EPA’s use of the near-peak baseline was substantial evidence validating SCAQMD’s use of the baseline here.

In analyzing air quality impacts, the EIR noted that the Project could allow the refinery to process an additional 6,000 barrels per day or process a slightly heavier crude oil blend. SCAQMD determined the worst-case analysis would focus on increased production, finding that the Project would not change the “fixed crude oil operating envelope.” Petitioner argued that SCAQMD failed to obtain information about pre-Project composition of crude oil refinery processes, instead focusing on the fact that crude oil input would remain within the refinery’s “operating envelope.” The Court rejected this argument, finding reliance on the crude oil operating envelope was appropriate because only a specific range of crude blends can be processed in the refinery. The Project would not change facilities upstream or downstream of the Coker to allow the refinery to process a different range of crude oil (in terms of hydrocarbon weight and sulfur content). The agency extensively analyzed whether the crude oil composition would change due to the Project, and the EIR disclosed why it was physically impossible for it to do so. This obviated the need to disclose further detail regarding crude oil composition. Since the EIR properly disclosed and analyzed whether crude oil composition would change, the Court found the EIR provided a thorough, consistent, stable, and logical explanation as to why the Coker would not process a heavier slate of crude as a result of the Project and rejected Petitioner’s claim.

Petitioner claimed that, without knowing exactly how SCAQMD calculated their 6,000-barrels a day figure, CEQA’s informational purpose would be undermined. The Court found Petitioner forfeited this argument because it failed to raise the exact issue before the agency during the administrative process.

Petitioner argued that the EIR failed to disclose the existing volume of crude oil the refinery processes as a whole and the refinery’s unused capacity. The Court held that the EIR adequately explained why the Project would not increase the refinery’s overall throughput due to physical limitations associated with upstream and downstream facilities. The Court additionally noted that the assumed 6,000 barrels per day increase would be offset by a 10,000 barrels per day decrease of vacuum gas oil the refinery previously used as feedstock for the Wilmington Cracking Unit—resulting in a net decrease in overall refinery throughput. The Court similarly dismissed Petitioner’s unused capacity claim by summarily stating there was no need for the EIR to include data on the difference between peak and average capacities because substantial evidence supported the EIR’s analysis.

Dissent

The dissenting opinion on the baseline issue found substantial evidence did not support SCAQMD’s use of the 98th percentile “near peak” baseline. It cited Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, in reiterating “that the impacts of a proposed project are ordinarily to be compared to the actual environmental conditions existing at the time of CEQA analysis, rather than to allowable conditions defined by a plan or regulatory framework.” (Id. at p. 321.) It did not find the EPA’s approach material to what is required under California law. The dissent further stated that the near-peak baseline failed to provide a realistic baseline of existing conditions as required by CEQA Guidelines section 15125 because it only reflected pollution levels occurring on the 15 worst days out of a 730-day review period. As a result, the baseline provided an inaccurate or diluted picture of the Project’s future impacts to the public and decisionmakers. The dissent stated SCAQMD “should have analyzed environmental conditions representing the entire period, or explained in the EIR why this was not possible, realistic, or informative.”

Key Point

The opinion reinforces the deference owed to agencies in selecting a baseline if supported by substantial evidence and reiterates there is no such thing as a “normal” baseline.

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.

Third District Holds City’s Explanation and Substantial Evidence Supported Traffic Impact Conclusion, Discharge of Writ of Mandate Proper

Thursday, January 3rd, 2019

In reviewing whether the City of Sacramento complied with a peremptory writ of mandate issued by the Sacramento Superior Court (East Sacramento Partnership for a Livable City v. City of Sacramento (2016) 5Cal.App.5th 281 (ESPLC I)), the Third District Court of Appeal ruled that the City had explained and provided substantial evidence supporting both its traffic threshold and its conclusion that the traffic impact was less than significant. (East Sacramento Partnership for a Livable City v. City of Sacramento (2018) Cal.App. Case No. C085551.)  In ESPLC I, the Court faulted the City’s use of a General Plan threshold because, the Court concluded, the threshold was not supported by substantial evidence.

Real Parties in Interest, Encore McKinley Village, LLC, proposed a 328-unit residential development (Project), which is now 80% built out. As pertinent here, the Project EIR recognized that the Project potentially impacted four intersections in the core and, utilizing the level of service (LOS) standard from the City’s General Plan, concluded that there would be no significant impacts to traffic. The City of Sacramento (City) reviewed the Project application, certified the Project EIR, and approved the Project. East Sacramento Partnership for a Livable City (ESPLC) filed suit.

The trial court denied the petition for writ of mandate, finding the EIR sufficient. ESPLC appealed. In ESPLC I, the Court of Appeal held that the EIR was sufficient except for its reliance on the General Plan LOS standards without explanation. Specifically, the City was in error in relying on the LOS standards as an automatic determinant that traffic effects at the four intersections in the core were not significant. In doing so, the City failed to provide substantial evidence to support the finding of no significant traffic impact. “The fact that a particular environmental effect meets a particular threshold cannot be used as an automatic determinant that the effect was or was not significant.” Accordingly, the Court remanded the case.

The trial court then entered judgement in favor of ESPLC and issued a preemptory writ of mandate to rescind and set aside the EIR’s certification until the City brought the transportation and circulation sections of the EIR into compliance with CEQA. The City recirculated and certified a revised EIR. The trial court found the revised EIR was sufficient and discharged the writ. ESPLC appealed the order discharging the writ.

ESPLC alleged that the City failed to provide substantial evidence to support the conclusion that the Project’s impacts on traffic at the four intersections in the core are insignificant. ESPLC claimed that it was insufficient to merely provide evidence and an explanation to support the choice of threshold of significance for traffic impacts. ESPLC contended that the City was instead required to prepare a new traffic study to support its determination. The City responded that, among other things, the appeal should be dismissed as untimely.

Here, the Appellate Court held that ESPLC I only asked that the City provide an explanation and substantial evidence for the City’s determination to use the flexible LOS standards. The Court then found that it was to review for abuse of discretion because compliance with a writ is, for all practical purposes, an attempt to comply with CEQA.  

The Court found the revised EIR provided substantial evidence supporting the City’s determination that there would be no significant traffic impacts at the challenged intersections in the core. The revised EIR provided an explanation of how the flexible LOS policy promotes infill development and achieves environmental benefits by reducing vehicle miles traveled (VMT) and greenhouse gas emissions. Further, the revised EIR explained that vehicle delay is not a physical impact on the environment and is preferable to roadway expansion as the latter increases VMT. These conclusions were supported by staff opinions, legislation, studies of flexible LOS, evidence of VMT in the area, and comments from Regional Transit, the Air District, and Sacramento Area Council of Governments.

ESPLC contended that the revised EIR should have studied and quantified the alleged reductions in VMT and greenhouse gas emissions in the Project area. The Court held that it was only required that the City provide “sufficient information and analysis to enable the public to discern the analytic route the agency traveled from evidence to action.” Because the City provided sufficient explanation and substantial evidence to support its selection of the threshold of significance for the traffic impacts, the Court affirmed the judgment.

The Court further established that the appeal was not untimely. A post judgment order, like that issued by the trial court discharging the writ, extends the time for filing a notice of appeal. Relying on City of Carmel-by-the-Sea v. Board of Supervisors (1982) 137 Cal.App.3d 964, the Court held that an order relating to the enforcement of a judgment is appealable. Thus, the discharge order, finding the return to the writ adequate, was an appealable post judgement order and subject to reconsideration. As such, the appeal was timely.

As a final point, the Court granted the City’s motion to strike ESPLC’s argument that the City admitted the traffic impacts were significant as defined by the 2030 General Plan because it could have been raised earlier and ESPLC failed to show why the issue was raised for the first time in their reply brief. The Court further noted that adoption of a 2035 General Plan mooted arguments based on the 2030 General Plan.

The Court affirmed the trial court’s discharge of the writ of mandate.

Note: This case is currently unpublished. Pursuant to California Rules of Court, the deadline to request publication is 20 days from filing –Wednesday, January 16, 2019.

County General Plan EIR Need Only Address “Reasonably Foreseeable Development” Outside the Planning Area, Population Reports in the Record Showed Possible Subdivision Unlikely

Thursday, December 20th, 2018

In High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102, the Third District Court of Appeal held a general plan update and EIR were valid where evidence in the record supported the County of Plumas’ (County) determination that there was no “reasonably foreseeable development” outside the planning area. The Court also held that adding building intensity standards and a comprehensive map to the EIR did not require recirculation after close of the comment period where the specific zones were not likely to be developed and the map information was otherwise available during the public comment period.

The County certified a final EIR and approved a general plan update (Project) in December 2013. The update focused on new population growth and housing construction in the “planning area” in order to preclude urban sprawl and degradation of natural resources. The planning area boundary encompassed the existing developed land area and the potential expansion area directly surrounding it. In contrast, rural areas were those “defined as having little to no public infrastructure and services.” High Sierra Rural Alliance (High Sierra) filed suit alleging that the County violated CEQA by failing to consider growth and subdivision development outside the planning area and failing to recirculate the final EIR once adding maps and building intensity standards after the close of the public comment period.

The trial court held that the EIR was a “reasonably crafted…first-tier environmental document that assesses and documents broad environmental impacts of a program with the understanding that a more detailed site-specific review may be required to assess future projects.” Further, substantial evidence supported that the County’s policies and mitigation measures contained in the EIR were sufficient to reduce the severity of any environmental impacts of future projects. Lastly, the addition of building intensity standards and cumulative maps, while possibly in error, was not prejudicial error under CEQA meriting recirculation. High Sierra timely appealed.

The Appellate Court confirmed that its role is not to determine “the correctness of the EIR’s environmental conclusion, but only its sufficiency as an informative document.” Applying these principles, the Court affirmed the judgment.

The Court first addressed High Sierra’s claim that the EIR was functionally deficient for failing to assess the impacts of development, especially subdivision development, outside of the planning area. The Court clarified that CEQA only required the County to address “reasonably foreseeable development” within the County. It is of no consequence to the Court’s determination if this excludes rural areas within the County.

The record showed that the County consulted population and economic data from the Department of Finance and CalTrans and determined that the County growth rate over the planning period would be minimal. This data supported the County’s determination that all reasonably foreseeable growth was to occur almost exclusively in the planning area. Further, sections of the general plan specifically provided restrictions on development in rural areas by requiring adequate, independent fire protection for each new development. Finally, the EIR specifically provided that the minimal amount of development that may occur will be best addressed in a site-specific manner. Thus, the EIR was a proper first-tier environmental document. The Court held that the County adequately addressed development outside of the planning area.

The Court then turned to High Sierra’s argument that the County failed to recirculate the EIR. The Court confirmed that recirculation is required when “significant new information is added…in a way that deprives the public of meaningful opportunity to comment upon a substantial adverse environmental effect.” (CEQA Guidelines 15088.5.)

High Sierra alleged that the County violated CEQA by failing to recirculate the EIR after adding maps and building intensity standards to the final EIR. The Court held that evidence in the record showed that the addition of comprehensive maps to the final EIR was not “significant new information” as the public had access to maps with land use designations for the County throughout the comment period. Further, the addition of building intensity standards for certain rural zones did not constitute “significant new information” where the additions did not change the scope of the Project. Also, the record supported a finding that even fewer structures in those zones would be built during the planning period than the small number in the past decade. Thus, the building intensity standards were nearly inconsequential and not “significant.” Considering these findings, the Court held that the scope of the Project did not change between the draft EIR and final EIR in a manner that requires recirculation.

The Court affirmed the trial court’s judgment and upheld the EIR.

Key Point:

A general plan EIR is only required to address “reasonably foreseeable development,” supported by evidence in the record, outside of the planning area to be sufficient under CEQA.

“Significant new information” meriting recirculation of an EIR does not include maps whose information was available elsewhere during the comment period nor standards that did not change the scope of the project.

EIR Addendum to Previously Certified EIR Proper Where No New Significant Environmental Impacts Identified

Wednesday, October 24th, 2018

In Save Our Heritage Organization v. City of San Diego (2018) 28 Cal.App.5th 656, the Fourth District Court of Appeal held CEQA Guidelines section 15164 (Section 15164) validly establishes an addendum process that is consistent with the CEQA statute. Specifically, Section 15164 filled in gaps in Public Resources Code section 21166 and accurately implemented CEQA.

In 2012, the City of San Diego (City) approved the Plaza de Panama Project in Balboa Park (Project) and its accompanying EIR in order to restore pedestrian and park uses to the area. Save Our Heritage Organisation (SOHO) appealed the City’s actions related to this Project multiple times on many grounds, winning some and losing on others.

In 2016, the City adopted an addendum to the project EIR addressing several project modifications. These included: (1) bridge modifications to meet CalTrans requirements; (2) adding and redesigning storm water basins; (3) adding parking lot ventilation; (4) making energy efficiency upgrades; (5) increasing the elevation of the excavated soils landfill; and (6) refining construction design. The most significant aspect was that the modified project would add 93 more parking spaces than in the original Project and EIR.

The City reviewed the modified Project’s potential environmental impacts to land use, historical resources, aesthetics, transportation, air quality, biological resources, energy, geologic conditions, greenhouse gas (GHG) emissions, health and safety, and hazardous materials. The City concluded that there were: (1) no substantial changes to the project requiring major revisions to the EIR because of new or substantially increased significant environmental effects; (2) no substantial changes in circumstances requiring major revisions to the EIR because of new or substantially increased significant environmental effects; and (3) no new, previously unknown or unknowable, information of substantial importance showing: (a) new or substantially more severe significant efforts than were discussed or shown in the EIR; (b) that previously infeasible mitigation measures/alternatives are now feasible and would substantially reduce significant efforts; or (c) that considerably different mitigation measures than analyzed in the EIR would substantially reduce significant effects. As such, the City approved the modifications with no additional EIR and on the basis of an addendum. SOHO filed suit. The trial court denied the petition. SOHO timely appealed.

Reviewing the agency’s action for abuse of discretion, the Court of Appeal affirmed the trial court’s holding. SOHO’s chief claim was that the addendum process, codified in Section 15164, was an invalid extension of the CEQA statute. Section 15164 provides, in pertinent part, “(a) The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in [Guideline] 15162 calling for preparation of a subsequent EIR have occurred. …(c) An addendum need not be circulated for public review but can be included in or attached to the final EIR…. (d) The decision-making body shall consider the addendum with the final EIR… prior to making a decision on the project. (e) A brief explanation of the decision not to prepare a subsequent EIR pursuant to [Guideline] 15162 should be included in an addendum to an EIR, the lead agency’s required findings on the project, or elsewhere in the record.  The explanation must be supported by substantial evidence.”  The Resources Agency’s discussion of Section 15164 states it was “designed to provide clear authority for an addendum as a way of making minor corrections in EIRs… without recirculating the EIR” and that “[Section 15164] provides an interpretation with a label and an explanation of the kind of document that does not need additional public review.”

The Court held that, under established case law, Section 15164, like any agency action, carries a presumption of validity and the challenging party has the burden of demonstrating its invalidity. Presented with the challenge, the Court is to consider “whether…[the regulation] is (1) consistent with and not in conflict with CEQA, and (2) reasonably necessary to effectuate the purpose of CEQA.” This analysis depends on whether the regulation is a quasi-legislative regulation or an interpretive regulation. The Court pointed out that no Supreme Court case has definitively said that the CEQA Guidelines are quasi-legislative or interpretive and declined to say so itself. Instead, the Court held it need not decide the issue in order to resolve the case because SOHO had not met their burden to establish Section 15164 was invalid.

While the Court agreed that CEQA does not expressly authorize the addendum process described in Section 15164, the Court stated that the process “fills a gap” in the CEQA process for projects with a previously certified EIR. Further, “CEQA authorizes the Resources Agency to fill such gaps in the statutory scheme, so long as it does so in a manner consistent with the statute.” The Court held Section 15164 is consistent with and furthers the objectives of CEQA section 21166 by requiring an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review. “The addendum process reasonably implements section 21166’s objective of balancing the consideration of environmental consequences in public decision making with interests of finality and efficiency.” After EIR certification, “the interests of finality are favored over the policy of encouraging public comment.” As such, the EIR addendum regulation was in line with the spirit of CEQA and a natural extension of the statutory scheme.

To this point, the Court noted that the Section 15164 was first promulgated in 1983 and the Legislature has never modified CEQA to eliminate it, strongly indicating consistency with legislative intent.

Lastly, the Court easily dismissed SOHO’s argument that additional findings were required for the City to approve the addendum. Such findings were already made in adopting the original EIR and “an addendum is only proper where no new significant environmental impacts are discovered.” Here, where no new significant environmental impacts were discovered, an addendum was proper and findings were not necessary.

The Court affirmed the trial court judgement finding the EIR addendum valid.

Key Point:

An addendum to a previously certified EIR is proper where there no new significant environmental impacts are discovered.

GHG Guidance Document Containing Threshold of Significance Required to Undergo CEQA Review

Friday, September 28th, 2018

In Golden Door Properties, LLC v. County of San Diego (2018) Cal.App.5th 892, the Fourth District Court of Appeal held San Diego County’s (County) adoption of a guidance document for the evaluation of greenhouse gas (GHG) emissions established a threshold of significance for determining impacts. The County violated CEQA where it adopted the guidance document without first conducting CEQA review, sidestepped required public review and violated the Court’s prior writ.

The County adopted a Climate Action Plan (CAP) in 2012 and related guidelines in 2013. Following successful petitions from the Sierra Club, the County was directed by both the trial court and appellate court to set aside the documents for failing to make required findings and failing to adequately detail deadlines and enforceable measures, amongst other things. In 2016, the County adopted the “2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Document” (Guidance Document). Golden Door Properties, LLC and Sierra Club brought suit challenging the adoption.

The trial court consolidated the two suits, granted a writ of mandate and injunction against the County, and entered judgment prohibiting the County from using the Guidance Document. The trial court concluded (1) the claims were ripe; (2) the Guidance Document creates a threshold of significance under CEQA; (3) the Guidance Document violates the County’s general plan mitigation measures; and (4) the Guidance Document is not supported by substantial evidence. The County timely appealed.

The Appellate Court first addressed the ripeness of this action. Ripeness is “primarily bottomed on the recognition that judicial decision-making is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy.” However, the Court continued, the issues here are ripe where the Guidance Document provided a generally applicable threshold of significance and there is sufficient public interest in the matter, citing California Building Industry Assn. v. Bay Area Air Quality Management District (2016) 2 Cal.App.5th 1067. The ultimate analysis of ripeness, the Court quoted, is “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”

The Court then turned to the CEQA arguments. The Court concluded that the Guidance Document is a threshold of significance. CEQA Guidelines section 15064.7 defines a threshold of significance as “an identifiable, quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant.” The Court found that the Guidance Document provided a “recognized and recommended” efficiency metric for determining significance of GHG emissions, and therefore was a threshold of significance for the purposes of CEQA.

The Court then held that a threshold of significance for general use (as opposed to a project-specific threshold) is subject to CEQA public adoption guidelines, per Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059. The County conceded that the Guidance Document was not formally adopted through a public review process. Thus, the County violated the CEQA requirement that a threshold of significance be adopted “by ordinance, resolution, rule or regulation, and [be] developed through a public review process,” as mandated by CEQA Guidelines section 15064.7.

Further, the Court held, the County failed to provide substantial evidence to support its recommendations in the Guidance Document. Specifically, the County “reli[ed] on statewide data without evidence supporting its relationships to countywide [GHG] reductions.” This approach was legally flawed under the principles set forth in Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204. The County failed to address why using the statewide data that did not specifically address the County was appropriate for the County and also failed to account for variations in different types of development.

Finally, the Court held that the County’s adoption of the threshold of significance in advance of its required Climate Action Plan (CAP) constituted improper “piecemealing [of] environmental regulations” in violation of CEQA. The County argued that development of a CAP and thresholds of significance were proceeding in compliance with the schedule established in the writ issued after the Court’s prior decision in Sierra Club, and the Guidance Document therefore did not violate that decision.  However, the Court concluded that its earlier decision treated the CAP and thresholds of significance as a single CEQA project and required completion of the CAP prior to the adoption of the thresholds. Considering this, the Court held the County’s 2016 adoption of the Guidance Document was improper piecemealing.

For these reasons, the Court affirmed the trial court’s holding.

Key Point:

A document that provides a threshold of significance is required to undergo CEQA review.

Population Projections Proper Baseline for San Francisco General Plan Housing Element Update

Wednesday, August 22nd, 2018

In San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596, the First District Court of Appeal held the City of San Francisco (City) general plan housing element EIR satisfied CEQA in using 2025 population projections as a baseline for a growth-accommodating policy and adequately considered traffic impacts, water needs, and project alternatives.

In 2011, the City updated the housing element to the City’s general plan. The housing element EIR baseline was based on 2025 population projections. San Franciscans for Livable Neighborhoods (SFLN) filed suit alleging the EIR used an improper baseline and failed to adequately address various environmental impacts.

The trial court held that the City complied with CEQA in most respects. Specifically, the trial court agreed with Respondents that the general plan was not internally inconsistent, the City need not have recirculated the EIR after publication, and the EIR contained an adequate project description, sufficient impact analyses, and a reasonable range of project alternatives. However, the trial court found that the EIR was inadequate in its analysis of alternatives and findings regarding potentially feasible mitigation measures. Parties timely appealed.

Typically, CEQA requires an EIR baseline to employ present environmental conditions for the baseline analysis. However, the Appellate Court held that the use of an alternative baseline was permissible under CEQA so long as contextual factors support the alternative baseline and the agency takes an informed, deliberate approach. An agency may adjust its baseline conditions at its own discretion and in appropriate circumstances in order to account for a major change in environmental conditions expected to occur before project implementation. For instance, where an amendment to a general plan takes a long view of city planning, the analysis of the amendment’s impacts may do so as well. Here, the City used a hypothetical baseline—population projections for 2025—in order to measure resulting traffic and water impacts related to the housing element. Recognizing “it would be absurd to ask the City to hypothesize the impacts of a long-term housing plan taking hold immediately,” the Court held the City acted within its discretion to define the baseline with 2025 population projections and forecast traffic and water impacts in 2025 rather than compare the existing conditions with and without the housing element.

The Court determined that the housing element sought to accommodate housing needs in response to a growing population, growth that would happen regardless of the housing element, therefore it was a growth-accommodating policy rather than a growth-inducing policy. Cases relied on by SFLN were unconvincing as they analyzed project approvals that would result in population growth in previously undeveloped areas.

With the baseline properly defined, the Court then held the EIR’s analysis of environmental impacts was sufficient. The EIR reasonably concluded that the housing element would not have a substantial impact on visual resources or neighborhood character as it encouraged residential uses in areas that were already allotted or existing and did not change any zoning.

Then focusing on the EIR traffic impact analysis, the Court held the City was not required to study in-the-pipeline projects with potential traffic impacts as they are subject to their own CEQA review and EIR process. Nonetheless, the City did so at sixty intersections and properly relied on 2025 population projections in their analysis for the above reasons.

The Court then held the EIR’s water supply impact analysis was sufficient where it acknowledged the “degree of uncertainty involved, discuss[ed] the reasonably foreseeable alternatives—including alternative water sources and the option of curtailing the development if sufficient water is not available for later phases—and disclos[ed] the significant foreseeable environmental effects of each alternative, as well as mitigation measures to minimize each adverse impact.”

Finally, the Court held the EIR’s analysis of alternatives complied with CEQA where it identified and provided “extensive information and analysis regarding the alternatives” for at least three alternatives. SFLN failed to meet their burden to show the range of alternatives are “manifestly unreasonable or deprive[] the decision-makers and the public of information they need to evaluate the project and its impacts.” Where the EIR’s alternatives allowed decision makers a meaningful context to weigh the project’s objective against its environmental impacts, it complied with CEQA.

The Court affirmed the trial court’s holding on these issues.

Key Point:

An alternative project baseline for CEQA purposes may be proper so long as contextual factors support the alternative baseline and the agency takes an informed, deliberate approach in utilizing it.

Second Appellate District Calls Settlement Agreement Part of “Project” for CEQA Consideration In Line with Historically Broad “Project” Definition

Tuesday, June 12th, 2018

In County of Ventura v. City of Moorpark (2018) 24 Cal.App.5th 377, the Second Appellate District upheld a CEQA statutory exemption applied to a project undertaken by the State-created Broad Beach Geologic Hazard Abatement District (BBGHAD) and clarified that a “project” for CEQA consideration may be two separate activities if they serve a single purpose, have the same proponent, and are “inextricably linked.” Further, settlement agreement restrictions were not preempted by state law and do not constitute extraterritorial regulation. However, the abdication of BBGHAD’s police power in portions of the agreement was improper and therefore void.

The State created BBGHAD to address beach and sand dune erosion at Malibu’s Broad Beach. Here, BBGHAD was obliged to restore and restock sand at the beach. The project would involve shipments of 300,000 cubic yards of sand, four subsequent deposits of equal size at five year intervals, and additional shipments of 75,000 cubic yards on an as-needed basis (Project). The sand was to be collected from quarries 30-40 miles away from Broad Beach and transported by trucks to the beach. The initial deposit alone was estimated to require 44,000 one-way truck trips. Possible truck routes from the quarries to the beach required either traveling through the City of Moorpark (City) or on roads adjacent to the community.

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

The County of Ventura (County) filed suit alleging that the settlement’s incorporation is preempted by state law, constitutes an illegal attempt by the City to regulate traffic outside of the City limits, and represents an abdication of BBGHAD’s state-granted police power.

The trial court found that the Project was statutorily exempt from CEQA, held that the settlement agreement was not preempted by the state’s Vehicle Code, and was not an improper attempt by the City to regulate traffic outside City limits. However, BBGHAD improperly contracted away its ability to amend the settlement agreement, therefore the trial court struck down the agreement’s mutual assent provision and held that BBGHAD must be able to modify the agreement in response to changed circumstances. The County timely appealed.

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

Turning to the preemption argument, the Court found Vehicle Code section 21 was not implicated in the City’s settlement agreement. Vehicle Code section 21 prohibits local authorities from enacting resolutions or ordinances which affect state traffic restrictions. The Court found that because the agreement did not involve an ordinance or resolution (rather, it was the City acting under its contracting power), it was not preempted by Vehicle Code section 21. The Court further found that the agreement merely dictated the routes BBGHAD’s contractors and subcontractors must use when delivering on behalf of the Project. The agreement did not amount to a physical barrier which would redirect traffic, did not close roads, and did not restrict non-project related hauling.

The Court then addressed the extraterritorial regulation claim and held the City was within its contracting rights to further its implied necessary function of preventing public nuisances on their roads—like thousands of sand shipments. Additionally, the Court found the traffic restrictions on BBGHAD shipments were valid, as they only affected activity within the City limits.

Turning to the issue of infringements on BBGHAD’s police power, the Court found that as an entity of the State, BBGHAD was entitled to exercise a portion of the state’s police power. However, BBGHAD erred in part by contracting away its right to exercise its police power in the future. The agreement bound BBGHAD to surrender its discretion to haul routes in the future unless mutual assent was achieved between BBGHAD and the City. The Court found that this grant of veto power infringed upon the State’s police power therefore was invalid. In examining if this error was sufficient to render the entire agreement void, the Court weighed the agreement’s impact on the public and the expressed intentions of the parties, and determined that the aspects of the agreement which infringed on BBGHAD’s State-granted police power were severable from the rest of the agreement. Accordingly, the Court upheld the agreement in part and struck the agreement in part.

The Court affirmed the trial court’s judgement.

Key Point:

While incorporated settlement agreements with local authorities in project planning is allowable as part of one CEQA-defined “project”, when contracting with state entities, it is important to not infringe upon state police powers through the creation of modification clauses requiring assent from all parties.

First District Court of Appeal Finds Project Description, Downstream GHG Emissions Analysis, and Existing Train Hazards Analysis Sufficient, Upholds Oil Recovery Project RFEIR

Tuesday, March 20th, 2018

In Rodeo Citizens Association v. County of Contra Costa (2018) 22 Cal.App.5th 214, the First District Court of Appeal held the project description, greenhouse gas (GHG) emissions analysis, and hazard impact analyses for upgrades to an oil refinery project were sufficient under CEQA therefore, Contra Costa County (County) properly approved the project. Despite this, the trial court writ of mandate setting aside the project remained intact until certain air quality analyses were complete.

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

Rodeo Citizens Association (Petitioners) challenged the approval on the grounds that the project description was inaccurate for failing to address future projects and imports, the analysis of cumulative impacts, air quality and GHG impacts were insufficient, and the RFEIR overlooked the increased risk of accidents from train derailments or explosions at project completion.

Relying on San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, Petitioners alleged the project approval was improper because the project description was not “accurate, stable, and finite” where Phillips executives had made public comments about future projects whose impacts would run seemingly contrary to the RFEIR. The Appellate Court held even if a project applicant’s statements indicate an anticipated or potential future change to a site, petitioners must also present evidence showing a connection between the project and any intended change. None of the statements established the future projects were dependent on a change or intended change in the proposed Project.

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

The Court upheld the lead agency’s description of the Project and concluded that Petitioners failed to provide evidence that the lead agency’s approval of the Project inappropriately approved any potential future changes not included in the Project description.

Next, the Court found the GHG considerations detailed in the RFEIR were “reasonable” under the circumstances; environmental review documents may find a project’s contribution to GHG emissions will be less than cumulatively considerable if there is sufficient showing that the Project is part of the State’s solution to climate change. While Petitioners claimed that the RFEIR failed to consider GHG emissions resulting from the combustion of project-captured propane and butane sold to downstream users, such a claim misconstrued the situation. Phillips considered downstream users in the RFEIR but was unable to definitively pinpoint the buyers’ uses. Indeed, the Court highlighted, propane and butane are low-GHG emitting gasolines mostly used in place of high-GHG emitting gasolines therefore reducing overall GHG emissions. An agency’s inability to quantify all down-stream emissions from project-related activities does not compel the agency to conclude that the project creates a significant and detrimental contribution to GHG impacts. Any possible negative environmental impacts were too speculative for evaluation; investigating these possibilities were beyond the County and Phillips’ responsibilities.

Finally, the Court rejected Petitioners’ allegations that the RFEIR overlooked the increased risk of accidents from train derailments or explosions as a result of the Project. In the RFEIR, Phillips properly addressed significance of the Project’s impacts without reference to existing risks posed by operation of the refinery, reasonably determined that the potential impacts were less than significant, and underscored that comparative worst case scenario analyses may reasonably consider only those impacts that have moderate or high consequence of occurrence.

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

Key Point:

Project descriptions are sufficient where not misleading or inaccurate. Greenhouse gas emission considerations under CEQA may be sufficient where the project emissions are downstream and evidence supports the project aligns with statewide solutions to climate change.