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ON REMAND, DIVISION FIVE OF THE FIRST APPELLATE DISTRICT LIMITS APPLICABILITY OF BAAQMD RECEPTOR THRESHOLDS

Thursday, September 29th, 2016

The Bay Area Air Quality Management District’s (BAAQMD) “CEQA Air Quality Guidelines” have been the source of litigation since they were first adopted in 2010. Most recently, courts have grappled with certain thresholds for assessing the health risks of siting new sensitive receptors near existing sources of toxic air contaminants, often referred to as the “Receptor Thresholds.”

In California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, the Supreme Court held that the scope of CEQA did not require lead agencies to consider the effect of the existing environment on a future users of a project unless the project will exacerbate those existing conditions. See http://www.thomaslaw.com/blog/supreme-court-strikes-down-reverse-ceqa-and-part-of-the-ceqa-guidelines/. The First Appellate District was tasked with determining on remand how that holding affected the Receptor Thresholds adopted by BAAQMD.

In California Building Industry Assn. v. Bay Area Air Quality Management Dist., 2016 Cal. App. LEXIS 758, the appellate court considered BAAQMD’s argument that approval of the receptor thresholds did not need to be set aside because there were possible valid uses.  These uses included: (1) voluntary applications by a lead agency; (2) the determination of whether a project will exacerbate existing conditions; (3) the assessment of the health risks to students and staff at a proposed school site; and (4) the evaluation of whether a housing project is exempt from CEQA.

The Court agreed with BAAQMD, but cautioned that “any effort by an agency to require an EIR, mitigating measures, or other CEQA review under the Receptor Thresholds when one is not authorized would be subject to a strong legal challenge.” The Court remanded the case to the trial court with instructions to issue an order invalidating the portions of the BAAQMD Guidelines that suggested that lead agencies should routinely assess the effect of existing environmental considerations on future users or occupants of a project.

BAAQMD subsequently filed a petition for rehearing and argued that writ relief was inappropriate because the Guidelines are a nonbinding, advisory document and any review was premature because there was no specific controversy regarding an application of the Guidelines. (See California Building Industry Assn. v. Bay Area Air Quality Management Dist., 2016 Cal. App. LEXIS 752.) The Court disagreed and found BAAQMD’s Guidelines to be akin to the guidelines at issue in Pacific Legal Foundation v. California Coastal Commission (1982) 33 Cal.3d 158. They were not “interim steps in a larger review process,” where a court may decline to use the remedy of mandamus. Therefore, the Court denied the petition for rehearing.

GOVERNOR SIGNS SWEEPING CLIMATE CHANGE BILL, SENATE BILL 32, INTO LAW

Tuesday, September 27th, 2016

Governor Jerry Brown signed Senate Bill (S.B.) 32, which will extend the State’s greenhouse gas targets from 2020 to 2030. The legislation builds on Assembly Bill (A.B.) 32, the California Global Warming Solutions Act of 2006, which required California to reduce greenhouse gas levels to 1990-era levels by 2020. Under S.B. 32, the State will be required to reduce its greenhouse gas emissions to 40 percent below 1990 levels by 2030.

S.B. 32 codifies the interim 2030 greenhouse gas target included in the Executive Order (B-30-15) issued by Governor Brown on April 29, 2015. The interim target is intended to ensure California meets its target of reducing greenhouse gas emissions to 80 percent below 1990 levels by 2050.  The Assembly passed the bill with only one vote to spare during a largely party-line vote.

Notably, to help garner the required votes, S.B. 32 was amended to provide that it would only become operative if A.B. 197 was also enacted. A.B. 197, which was passed by the Legislature by a much less narrow vote than S.B. 32, increases legislative oversight of the California Air Resources Board (CARB) by putting two legislators on CARB as nonvoting members and requiring CARB to report annually to a newly created joint legislative committee on climate change policies. It also directs CARB to prioritize emissions rules and regulations that limit economic impact on the State’s disadvantaged communities and regions reliant on agriculture.  S.B. 32 and A.B. 197 were approved by Governor Brown on September 8, 2016, and will become effective on January 1, 2017.

COURT OF APPEAL PARTIALLY PUBLISHES RECENT URBAN DECAY MND CASE

Thursday, July 14th, 2016

On July 13, 2016, the Fourth Appellate District ordered the partial publication of its recent decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino. Thomas Law Group requested publication on behalf of the California Infill Builders Federation.

The opinion addresses challenges to a proposed retail store on the basis of alleged urban decay impacts and community plan inconsistencies. While these issues frequently arise in California Environmental Quality Act challenges to a Mitigated Negative Declaration (MND), existing published case law is sparse. Significantly, the opinion is the first published decision in nearly a decade to address an urban decay challenge in the context of an MND. In addition, the opinion articulates that the abuse of discretion standard of review, as opposed to the fair argument standard, is appropriate for land use plan consistency determinations relating to policies that “were not adopted to mitigate environmental impacts.”

The only portion of the opinion that was not published by the Court was Section IV, which addresses whether the County was required to disclose that the future occupant of the project was Dollar General.

For a complete summary of the case, please see our previous blog post at: http://www.thomaslaw.com/blog/fifth-appellate-district-rejects-general-plan-consistency-and-ceqa-challenges-to-large-shopping-center-project-in-an-unpublished-opinion/

FIRST APPELLATE DISTRICT UPHOLDS MTC AND ABAG’S APPROVAL OF PLAN BAY AREA

Wednesday, July 6th, 2016

In a recently published opinion, Bay Area Citizens v. Association of Bay Area Governments, 2016 Cal. App. LEXIS 531, the First Appellate District affirmed the trial court’s judgment and upheld the approval of Plan Bay Area by the Bay Area Metropolitan Transportation Commission (“MTC”) and the Association of Bay Area Governments (“ABAG”) (collectively, “Agencies”). Thomas Law Group represented the Agencies in successfully defending against the suit.

Plan Bay Area is the regional transportation plan and sustainable communities strategy for the nine-county Bay Area region, adopted by the Agencies pursuant to SB 375. It establishes a plan for reducing greenhouse gas emissions by reducing vehicle miles traveled through combined land use and transportation strategies. Bay Area Citizens (“Citizens”) filed a petition in August 2013, challenging certification of the environmental impact report (“EIR”) prepared for Plan Bay Area under the requirements of the California Environmental Quality Act.

Citizens’ primary contention was that the Agencies failed to consider greenhouse gas emission reductions expected from existing statewide mandates, such as clean car and low carbon fuel standards. Due to this omission, Citizens contended that the Agencies unnecessarily imposed “draconian” high-density land use patterns to reduce vehicle miles traveled (“VMT”) to satisfy the California Air Resources Board’s (“CARB”) greenhouse gas emissions targets. The trial court rejected Citizens’ argument, holding that reliance on the statewide mandates to meet CARB’s targets under SB 375 was expressly prohibited by the legislation and would constitute improper double-counting of greenhouse gas emissions reductions.

The appellate court also rejected Citizens’ argument, calling its interpretation of SB 375 “absurd.” The court held that Citizens’ interpretation effectively made SB 375 superfluous because it would allow the Agencies to rely on reductions already expected from the statewide mandates without achieving additional SB 375 emission reductions through land use and transportation strategies. Pointing to CARB’s interpretation – that SB 375 calls for such strategies in addition to emissions reductions expected from the statewide mandates – the court concluded that Citizens’ interpretation was incorrect.

Turning to Citizens’ EIR contentions, the court found that because the Agencies properly interpreted the requirements of SB 375, Citizens’ challenge of Plan Bay Area’s EIR objectives was without merit. The court similarly rejected Citizens’ alternatives analysis arguments. Specifically, the court found that the “no project” alternative appropriately captured the continuation of existing regional policy. With regard to the Citizens’ proposed alternative, the court found that many of the aspects of the Citizens’ alternative were already captured in the other alternatives considered by the Agencies. Moreover, because the Citizens’ proposed alternative double-counted statewide emissions mandates, it was not feasible in light of the emission reduction requirements of SB 375.

Key Point: The court affirmed that metropolitan planning organizations may not rely on emissions reductions expected from pre-existing statewide mandates in order to meet CARB’s regional greenhouse gas emissions targets when preparing plans required under SB 375.

COURT OF APPEAL PARTIALLY PUBLISHES RECENT GENERAL PLAN CONSISTENCY CASE

Tuesday, July 5th, 2016

On July 1, 2016, the Fifth Appellate District granted Thomas Law Group’s request to publish the general plan consistency argument in Naraghi Lakes Neighborhood Preservation Association v. City of Modesto. This newly published discussion is a useful aid to practitioners and local governments, providing clarification on when general plan policies should be treated as “mandatory development standards.” The sections on the rezoning findings and CEQA arguments remain unpublished. For a complete summary of the case, please see our previous blog post at: http://www.thomaslaw.com/blog/fifth-appellate-district-rejects-general-plan-consistency-and-ceqa-challenges-to-large-shopping-center-project-in-an-unpublished-opinion/

FOURTH DISTRICT UPHOLDS COUNTY’S MITIGATED NEGATIVE DECLARATION FOR DOLLAR GENERAL STORE IN JOSHUA TREE

Friday, July 1st, 2016

In an unpublished opinion, Joshua Tree Downtown Business Alliance v. County of San Bernardino, 2016 Cal. App. Unpub. LEXIS 4405, the Fourth Appellate District rejected a challenge to the County’s approval of a 9,100-square-foot Dollar General store (“Project”) proposed by Dynamic Development (“Dynamic”) in Joshua Tree.

The County circulated an initial study and proposed negative declaration in August 2012. Many of the nearby property owners raised concerns that the Project would be out of character with the family-owned business community in Joshua Tree. In response to such concerns, the County changed its environmental determination from a negative declaration to a mitigated negative declaration and recirculated it in November 2012. After the County Board of Supervisors approved the Project in January 2013, the Joshua Tree Downtown Business Alliance (“Alliance”) filed a petition for writ of mandate, alleging that the County violated the California Environmental Quality Act (“CEQA”) by failing to analyze the Project’s potential for causing urban decay and blight. The Alliance also alleged that the County violated CEQA by attempting to hide the identity of the intended occupant and by approving a project that was inconsistent with the Joshua Tree Community Plan (“Community Plan”).

The trial court held that an EIR was required because there was substantial evidence to support a fair argument that the Project could cause urban decay. The trial court relied on the comments made by Ms. Doyle, a member of the Alliance and a lawyer who had previously counseled on land use issues as an Assistant Attorney General in the Oregon Department of Justice. The trial court reasoned that her experience demonstrated sufficient relevant personal observations that constituted substantial evidence under CEQA. Dynamic appealed and the Alliance cross-appealed on the remaining claims.

On appeal, the court reversed the trial court on the urban decay claim, holding that the mere fact that the Project may have potential economic impacts did not require an EIR where the economic impacts would not cause reasonably foreseeable indirect environmental impacts. The court found that the County properly considered that this was a “small box” retail project rather than the typical “big box” retail project analyzed in urban decay cases. The court also rejected the Alliance’s contention that Ms. Doyle’s opinions should have been considered substantial evidence. The court explained that Ms. Doyle was not qualified to opine on the Project’s economic impacts because she was not an economist and, moreover, her conclusions that urban decay would occur were speculative because they had no factual basis.

Next, the court rejected the Alliance’s allegation that the County violated CEQA by failing to identify the end user of the Project. The court recognized that CEQA does not require a lead agency to disclose an end user generally, but there may be times where the identity of the end user would be considered “environmentally relevant.” That was not the case here because Alliance did not produce any evidence that a Dollar General would have adverse environmental impacts beyond that of a “general retail store.”

Finally, the court rejected the Alliance’s argument that Project required an EIR because it was inconsistent with the Community Plan. The court declined Alliance’s request to view this as a CEQA issue that should be reviewed under the fair argument standard. Instead, the court applied the usual standard for a claim of inconsistency with a land use plan: abuse of discretion. The court held that the mere fact that the Project might compete with established local businesses did not make it inconsistent with the Community Plan’s provisions encouraging small businesses, and found that the terms “encourage” and “support” to be amorphous policy terms that gave the County discretion when making its consistency determination. Accordingly, the court found that the County had not abused its discretion.

NEWLY PUBLISHED FOURTH DISTRICT OPINION FINDS WAL-MART PROJECT INCONSISTENT WITH GENERAL PLAN AND CREATES NEW FINDINGS REQUIREMENT FOR PARCEL MAP APPROVALS

Monday, June 20th, 2016

On June 15, 2016, the Fourth District Court of Appeal published its opinion in Spring Valley Lake Association v. City of Victorville (D069442). The case involved a CEQA and Planning and Zoning Law challenge to a Wal-Mart project (“Project”) that was approved by the City of Victorville. After the trial court found in favor of Petitioner Spring Valley Lake Association (“Petitioner”) on some of its claims, Real Party in Interest Wal-Mart appealed and Petitioner cross-appealed.

Wal-Mart’s Appeal

Wal-Mart appealed the trial court’s determinations that: (1) there was no substantial evidence in support of the City’s general plan consistency finding; and (2) the EIR had inadequately analyzed the Project’s greenhouse gas emissions impacts. The appellate court affirmed the trial court’s judgment on both issues.

The general plan consistency issue turned on one policy, IM 7.1.1.4, which requires all new commercial or industrial development to generate electricity on-site “to the maximum extent feasible.” The Project was developed to be solar ready, but Wal-Mart did not commit to the installation of panels because, as explained in a response to comment, it was uncertain whether the $750,000 cost would be offset by any federal tax credits or California incentives. Without the offsets, the response stated that the installation was economically infeasible. The court interpreted this response as effectively finding that “there was no extent to which it would be feasible to require the project to generate electricity on-site, whether by solar or other means.” The court held that this finding was not supported by substantial evidence in the record because there was no mention of why non-solar methods of generating electricity on-site were infeasible. The court showed little deference to the City’s own interpretation of what was considered “feasible” in this situation.

Surprisingly, despite the policy’s ambiguous language “to the maximum extent feasible,” the court held that this was a “fundamental, mandatory, and clear” policy. As such, the Project’s failure to be in conformance with this one policy was sufficient for the court to reject the City’s general plan consistency determination. (See Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782.)

Turning to the EIR’s greenhouse gas analysis, the court held there was conflicting evidence about whether the Project would achieve a 15-percent reduction above Title 24 standards. References in the EIR stated in some places that the figure would be 14-percent, and in others, 10-percent. Because the record did not show the Project would actually achieve the 15 percent reduction, the court held that there was no support for the City’s determination that the Project would not have significant greenhouse gas emissions impacts.

Petitioner’s Cross-Appeal

Petitioner cross-appealed the trial court’s determination that the City did not violate CEQA by failing to recirculate the EIR after it revised the traffic, air quality, hydrology, and biological resources impacts analyses. The court of appeal held that recirculation was required only for the air quality and hydrology analyses because the revisions to those sections constituted “significant new information” and the public did not have a meaningful opportunity to comment on those changes.

Petitioner also argued on appeal that the City violated the Planning and Zoning Law by failing to make all the findings required by Government Code section 66474 before approving the Project’s parcel map. In what appears to be an issue of first impression, the court agreed, relying on an Attorney General’s Opinion from 1975.

Key Point: Going forward, local governments should affirmatively address that the approval of the parcel map does not create any of the issues listed in Government Code section 66474. Local governments should also continue to make findings under Government Code section 66473.5 when approving a parcel map.

Thomas Law Group is requesting depublication of the Court’s general plan consistency discussion as it departs from the existing case law’s emphasis on deference to the agency’s determination of consistency.

FIFTH APPELLATE DISTRICT REJECTS GENERAL PLAN CONSISTENCY AND CEQA CHALLENGES TO LARGE SHOPPING CENTER PROJECT IN AN UNPUBLISHED OPINION

Thursday, June 16th, 2016

A neighborhood group, Naraghi Lakes Neighborhood Preservation Association (“Petitioner”), challenged the City of Modesto’s approval of a 170,000 square foot shopping center project (“Project”) on an 18-acre site adjacent to an established residential neighborhood. Petitioner alleged that the City’s approval was inconsistent with Modesto’s General Plan and did not comply with CEQA. On June 7, 2016, the Fifth District ruled in favor of the City in an unpublished opinion, Naraghi Lakes Neighborhood Preservation Association v. City of Modesto, 2016 Cal. App. Unpub. LEXIS 4149.

The Project area was within the General Plan’s “Neighborhood Plan Prototypes,” which were designed to create a blueprint for residential neighborhood development. One of the Neighborhood Plan Prototype’s policies requires: “A 7-9 acre neighborhood shopping center, containing 60,000 to 100,000 square feet gross leasable space.” Petitioner argued that the large size of the Project was inconsistent with this policy. The court disagreed, finding that the prototypes were meant to provide guidance, not inflexible mandates, and that the Project was in conformance with other General Plan policies. The court emphasized that perfect conformity will all policies is not required and that a finding of consistency should be upheld unless “no reasonable person could have reached the same conclusion.”

Next, the court found that the City had made the appropriate findings required by the General Plan to rezone the property and rejected Petitioner’s argument that the proposed environmental mitigation was not “adequate” because some traffic impacts were not mitigated to less than significant levels. Because other policies in the General Plan allowed the City to avoid making infeasible or prohibitively expensive traffic improvements, the court did not agree with Petitioner’s interpretation of “adequate” mitigation. The court did not consider other general plan consistency arguments proffered by Petitioner because these contentions were not raised in the administrative proceedings.

Finally, the court addressed Petitioner’s argument that the City failed to comply with CEQA because: (1) the findings of infeasibility as to certain mitigation measures were not supported by substantial evidence; (2) the EIR did not adequately analyze a reduced project alternative; (3) the urban decay findings were not supported by substantial evidence; and (4) the findings made in connection with the statement of overriding considerations were not supported by substantial evidence. The court held that there was sufficient evidence in the record to support the various findings singled-out by Petitioner and found that the City’s alternatives analysis complied with CEQA.

Accordingly, the appellate court affirmed the trial court’s judgment in favor of the City.

PLACER COUNTY’S HOMEWOOD VILLAGE RESORT EIR COMES UNDER FIRE

Monday, January 4th, 2016

In an unpublished opinion, Cal. Clean Energy Comm. V. County of Placer, 2015 Cal. App. Unpub. LEXIS 9360, the Third Appellate District granted California Clean Energy Committee’s (Clean Energy) petition for writ of mandate challenging the County of Placer’s (County) approval of a proposal to expand an existing ski resort on the West Shore of Lake Tahoe.

Real Party in Interest, Homewood Village Resorts, LLC, proposed improvements to the Homewood Mountain Resort (Project), which would include: the redevelopment of the “North Base” for mixed-use; the “South Base” for residences; and the “Mid-Mountain area” for a lodge and beginner ski area. After a comprehensive Environmental Impact Report (EIR) process, the County Board of Supervisors approved the Project and certified the EIR. The County concluded that the Project’s social and economic “benefits outweigh the Project’s significant and unmitigated adverse impacts,” and “the adverse environmental impacts of the Project that are not fully mitigated are acceptable.” On review, the trial court issued a written ruling concluding the General Plan substantially complied with the statutory mandate to “address” wildfire evacuation routes; the County had broad discretion to determine the appropriate “threshold” for evaluating environmental impacts; and substantial evidence supported the County’s findings.

On appeal, Clean Energy contended that the County’s approval of the Project involved defects in the Placer County General Plan (General Plan) in violation of the Planning and Zoning laws (Gov. Code, § 65000 et seq.), because the General Plan does not “address evacuation routes” for the Project area, a high-risk wildlife area, as required by Government Code, Section 65302. Clean Energy also contended that the County violated the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.) because the EIR for the Project failed to consider: (1) increased wildfire evacuation risks; (2) energy impacts for expanded snowmaking; (3) other energy impacts; (4) world travel impacts; and (5) because the evidence is insufficient to support the findings of infeasibility of carbon offsets and rail packages as climate disruption mitigation measures.

The Court first addressed alleged procedural defects in Clean Energy’s General Plan claims, concluding that Clean Energy’s Subdivision Map Act claim was neither forfeited nor barred by any statute of limitations. The Court then found that even though Clean Energy did not file a direct attack on the General Plan within the specified time period after its approval, Clean Energy had filed a timely lawsuit challenging the Board’s approval of a specific project; there was a nexus between the Project and General Plan to address contentions related to wildfire evacuation routes. Turning to Clean Energy’s substantive claim that the General Plan failed to “address” wildlife evacuation routes as required by Government Code, Section 65302, subdivision (g)(1), the Court applied a deferential standard of review and rejected Clean Energy’s argument. The Court concluded that the County’s General Plan is in substantial compliance with the former Government Code, Section 65302, subdivision (g) requirement to “address evacuation routes” related to “identified fire hazards.”

The Court then turned to Clean Energy’s CEQA claims. Clean Energy argued that the EIR failed to evaluate both components of wildlife evacuation risk – evacuation by residents, workers, and visitors, and the impact of that evacuation on access by emergency entities responding to wildfire. The Court concluded the EIR failed to adequately identify, describe, and analyze the wildfire evacuation risk associated with residents, workers, and visitors fleeing the area and the impact that evacuation will have on emergency response access.   The court explained that the EIR too narrowly focused the public safety discussion on emergency vehicle access, but even then, did so without discussing how emergency responders could share the same inadequate roads with vehicles occupied by residents, workers, and visitors evacuating the area.

Next, the Court rejected Clean Energy’s remaining CEQA claims involving energy impacts, world travel impacts, and climate impacts because Clean Energy failed to establish that any of those arguments are grounds for reversal. Specifically, the Court found that Clean Energy failed to exhaust on its claims related to transportation and equipment energy impacts, renewable energy resources, worldwide tourism impacts, and climate disruption mitigation. The Court rejected Clean Energy’s remaining energy claims and found that the EIR’s treatment of energy impacts complied with CEQA.

The Court reversed the judgment based on Clean Energy’s wildfire evacuation hazard CEQA claim and remanded the matter to the trial court with directions to enter a new judgment granting the petition for writ of mandate.

SUPREME COURT DELAYS DEVELOPMENT OF NEWHALL RANCH PROJECT

Tuesday, December 15th, 2015

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

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

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

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

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

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

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

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

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

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

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

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

Key Point

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