Thomas Law Blog

CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Air Quality Posts


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.

CITY OF SAN JOSE’S LANDFILL EIR UPHELD BY COURT

Wednesday, December 9th, 2015

In an unpublished opinion, City of Milpitas v. City of San Jose, 2015 Cal.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

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

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

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

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

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

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

SECOND APPELLATE DISTRICT AFFIRMS EIR FOR THE WESTSIDE SUBWAY EXTENSION PROJECT IN LOS ANGELES

Monday, November 9th, 2015

In Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority, 2015 Cal. App. LEXIS 930, the Second Appellate District affirmed the trial court’s decision and rejected challenges to the environmental impact report/environmental impact statement (EIR/EIS) for the Westside Subway Extension Project.

The Constellation station alignment recommended for the subway extension required controversial tunneling under Beverly Hills High School. Beverly Hills Unified School District and the City of Beverly Hills (“Petitioners”) challenged Los Angeles County Metropolitan Transportation Authority’s (“Metro”) decision not to recirculate the Draft EIR/EIS, claiming that significant new information was added after the public comment period had closed. Petitioners also challenged the adequacy of the EIR/EIS’s air quality impacts analysis and claimed that the Metro’s conduct in holding a transit hearing was unlawful.

The Court first discussed Metro’s decision not to recirculate, noting that an agency’s decision not to recirculate an EIR is given substantial deference and presumed to be correct and that the challenging parties bear the burden of proof in showing that the agency’s decision was not supported by substantial evidence.

Here, Petitioners challenged the addition of fault investigation and tunnel safety reports to the Final EIR/EIS. These reports found that the proposed Santa Monica station in Century City was within active fault zones and therefore unsuitable and that there would be no significant impacts from tunneling under the high school and residences. As a result, the other proposed station for Century City analyzed in the Draft EIR/EIS—the Constellation station—became Metro’s preferred alternative. The Court found that the new reports merely confirmed suppositions raised in the Draft EIR/EIS and that the Draft EIR/EIS had made clear that both stations were being considered. Therefore, the Court upheld Metro’s decision not to recirculate because the Draft EIR/EIS provided a meaningful opportunity for public comment on the environmental effects of both the Santa Monica and Constellation stations.

Petitioners also argued that the EIR/EIS should have been recirculated because of changes in the air quality impact analysis between the Draft EIR/EIS and Final EIR/EIS. Because the Draft EIR/EIS and the Final EIR/EIS reached the same conclusion, the Court upheld Metro’s decision not to recirculate.

The Court also rejected a challenge to the adequacy of the EIR/EIS’s air quality impact analysis. The Court specifically rejected Petitioners’ claim that an EIR must analyze localized rather than regional air quality impacts and that an EIR must include an analysis showing how the actual construction emissions will specifically impact public health.

Petitioner City of Beverly Hills challenged Metro’s conduct during a transit hearing as unlawful. If requested, the Public Utilities Code requires Metro to hold a “transit hearing” to evaluate the reasonableness of locating transit facilities. The City requested and was granted such a hearing, but claimed that the hearing was unlawful because Metro’s Board was prejudiced, relied on hearsay evidence, and did not allow cross-examination of witnesses. The Court rejected this challenge, finding that the City got the transit hearing it had requested—an opportunity to present its own evidence.

Key Point:

Lead agencies are given substantial deference in their decision not to recirculate an EIR for public comment, and the courts will uphold the agency’s decision as long as significant new information did not deprive the public of a meaningful opportunity to comment on the project’s substantial environmental effects.

Appellate Court Denies Writ Challenging EIR for Expansion of Marin County Landfill

Monday, January 5th, 2015

In an unpublished opinion in No Wetlands Landfill Expansion v. County of Marin, 2014 Cal. App. Unpub. LEXIS 8866, the California Court of Appeal for the First Appellate District denied a petition for a writ of mandate challenging the environmental impact report (EIR) for a proposed landfill expansion in Marin County. The court affirmed in part and reversed in part the trial court decision.

The decision was the court’s second opinion related to the EIR for the 420-acre Redwood Landfill near the Petaluma River. In the previous decision (summary available here: http://www.thomaslaw.com/blog/court-holds-the-integrated-waste-management-act-does-not-vest-a-county-with-any-authority-over-issuance-of-a-solid-waste-facilities-permit-and-therefore-the-county-is-not-the-decisionmaking-body-fo/) the court concluded certification of the EIR was not appealable to the Marin County Board of Supervisors and remanded to the trial court to resolve the challenges to the adequacy of the EIR.

Several environmental and community groups challenged the adequacy of the EIR. First, landfill opponents argued it was improper for Marin County Environmental Health Services (Marin EHS) to consider a nonspecific offsite project alternative. However, the court explained that most of the land in Marin County was unsuitable for an alternative landfill site.  Thus, it was reasonable under the circumstances to include a hypothetical project alternative that demonstrated why an expansion of Redwood Landfill had the least significant environmental impact.

Next, the court concluded the EIR did not improperly defer mitigation measures to address potential sea-level rise and groundwater contamination. As to sea-level rise, the mitigation measure required the landfill developers to prepare a long-term flood-protection plan that took into account the effects of climate change. The court held it was reasonable given the uncertainty of rising sea-levels to not set a specific levee height and instead to re-evaluate the plan every five years.

As to groundwater, one challenged mitigation measure required an analysis of the possibility of leachate contaminating groundwater from the early years of the landfill when operators buried waste in trenches of an unknown depth. The second measure required a plan approved by the Regional Water Quality Control Board if leachates were found. Landfill opponents contended the measures lacked objective criteria. However, the court reasoned the two mitigation measures were part of a larger leachate monitoring system that complied with California Code of Regulations. As a result, the court held the mitigation measures were adequate.

The court next upheld the EIR’s discussion of potential health impacts from air emissions. Landfill opponents contended it was improper for the EIR to jointly consider the larger PM-10 and smaller PM-2.5 particulate matter and to not consider the noncancer health risks from toxic air contaminants. However, despite other authorities requiring alternative methodologies for analysis, this approach was consistent with the CEQA guidelines prepared by the Bay Area Air Quality Management District, which were in effect at the time the EIR was prepared.

Lastly, the court held the EIR sufficiently analyzed greenhouse gas emissions. The court rejected the landfill opponents’ argument that Marin EHS was required to consider the cumulative effects on greenhouse gas emissions of landfills on a global scale and not just in Marin County. The court explained this was “entirely unrealistic” and declined to impose such a burden.

The court also upheld the use of the “LandGEM” model to predict emissions from the project. The court emphasized it was not the court’s role to substitute its judgment for the reviewing agency and found there was substantial evidence to support the use of the model. The court also held landfill opponents failed to satisfy their burden of showing the proposed onsite power facility fueled by landfill gas would not offset future greenhouse emissions.

You Can’t Abate if You Don’t Correlate: Appellate Court Finds EIR for Proposed Master-Planned Senior-Living Community Included Inadequate Analysis of Air Quality Impacts and Mitigation Measures

Tuesday, June 3rd, 2014

In Sierra Club v. County of Fresno, 2014 Cal. App. LEXIS 459, the Court of Appeal for the Fifth Appellate District reversed and remanded the lower court’s denial of a petition for writ of mandate challenging the County’s adoption of a proposed master-planned community.

In February 2011, the County of Fresno certified the Environmental Impact Report (“EIR”)  for the Friant Ranch project, a proposed master-planned community for persons age 55 or older located in north-central Fresno County.  The County concurrently approved a General Plan amendment, updating the Friant Community Plan, and approved  the proposed Friant Ranch Specific Plan.  The County’s approval of the Project would result in the construction of approximately 2,500 residential units and 250,000 square feet of commercial space on 482 acres and the dedication of 460 acres to open space.

Appellant filed a petition for writ of mandate, challenging the County’s approval of the Project and the certification of the final EIR. The appellant alleged that the project was inconsistent with the existing General Plan.

The Fifth Appellate District held that the California Supreme Court’s decision in No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, which addressed the appropriateness of governing bodies’ interpretation of ambiguous general plan policies, supported the County’s general plan amendment. Here, the court held  the General Plan clearly indicated that land use designations are not locked in forever; accordingly, the County did not abuse its discretion in amending the General Plan. Likewise, the County did not abuse its discretion when it interpreted the County’s Ag Use Policy to mean  the County could direct growth to an area where expansion of existing facilities and development of new facilities was required.

Appellant then alleged defects in the CEQA analyses. First, the Appellant contended that the EIR’s discussion of wastewater generated by the proposed treatment plant lacked sufficient information about the amount and location of wastewater application and lacked an adequate discussion of the hydrogeology of the site selected for the proposed treatment plant and storage pond.

The court disagreed, concluding that sufficient detail was provided in the draft EIR, enabling readers to understand how a year’s production of effluent would be handled. Likewise, the draft EIR spoke directly to the existing hydrogeologic conditions of the site. Moreover, the final EIR provided additional information in its response to comments, thereby eliminating any “generality” of the original disclosures in the draft EIR.

Finally, the Appellant alleged defects in the EIR’s air quality impact analysis. Specifically, Appellants alleged that the EIR did not adequately describe the exceedance of the thresholds identified, and that there was no meaningful analysis of the adverse health effects associated with the project’s estimated emissions. Appellants also alleged  the EIR failed to provide sufficient detail rendering an identified mitigation measure amorphous and unenforceable.

Citing Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, the court  found that the EIR was inadequate under CEQA because it did not effectively correlate additional emissions generated by the project to potential adverse human health impacts that could be expected as a result. Specifically, the mere statement “that the significant adverse air quality impacts will have an adverse impact on human health” fails to satisfy CEQA standards by not identifying or quantifying the potential adverse human health impacts.

Turning to the adequacy of the EIR’s air quality mitigation measure, the court found  the EIR was inadequate due to internal inconsistencies with the language of its air quality mitigation measure, which added to the mitigation measure’s inherent “vagueness.” The Court indicated that air quality mitigation was vague on matters essential to enforceability, leaving the reader to speculate who is responsible for carrying out mitigation. Likewise, the mitigation did not include enforceable performance criteria, allowing for an objective determination as to whether mitigation has been completed. Furthermore, the court found that the mitigation measure’s “bare” conclusion that emissions would be “substantially reduced” did not quantify emissions and was thus not supported by facts or analysis.

Key Points:
In preparing air quality and greenhouse gas analyses, Lead Agencies should provide meaningful analysis regarding the link between adverse health impacts and identified air quality impacts. This case also reemphasizes the importance of establishing clear, enforceable mitigation with objective performance standards.

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

Monday, August 5th, 2013

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

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

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

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

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

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

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

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

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

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

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

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

Tahoe Resort Expansion Delayed for Improper CEQA Alternatives Analysis

Friday, March 1st, 2013

In Sierra Club v. Tahoe Regional Planning Agency (January 4, 2013) U.S. Dist. LEXIS 1628, the U.S. Court for the Eastern District of California granted the plaintiffs’ motion for summary judgment, finding a proposed project’s alternatives analysis violated the California Environmental Quality Act (CEQA).  The court ordered the defendants to delay construction until a legally adequate environmental document had been certified and the necessary findings under CEQA had been made.

The project would expand Homewood Mountain Resort (Resort), located on the west shore of Lake Tahoe in Placer County, from 25,000 square feet to over one million square feet.  Approval of the project required action by both Placer County and the Tahoe Regional Planning Agency (TRPA), including several amendments to TRPA’s Regional Plan, adopted in 1987 (Regional Plan).  In January 2011, the two agencies issued a joint draft environmental impact report/environmental impact statement (EIR/EIS), pursuant to the requirements of CEQA and the Compact between California and Nevada establishing the TRPA, analyzing potential impacts of the project.

The plaintiffs first argued the EIR/EIS failed to consider a reasonable range of alternatives because it did not consider an alternative that required no amendments to the Regional Plan.  The EIR/EIS explained that a “no-amendment” alternative would eliminate overnight lodging, making the alternative inconsistent with the Resort’s objective to transform Homewood into an overnight destination.  The court held that the agencies considered a reasonable range of alternatives, explaining an EIR is not rendered deficient merely because it does not address a particular alternative called for by petitioners.  Instead, an EIR need only consider a reasonable range of alternatives that would be capable of avoiding or substantially lessening any significant effects of a project.  Here, the EIR/EIS included six alternatives (besides the proposed project), which allowed the public and decision makers to compare the impacts of closing the Resort, reducing the size of the proposed project, and adjusting the proposed project in different ways to address environmental impacts. The court found that this range of alternatives allowed informed decision making, as required by CEQA.

The plaintiffs also argued that the EIR/EIS failed to provide enough reduced-size alternatives, arguing that although the EIR/EIS considered one such alternative, the impacts of another reduced-size alternative would have been substantially less.  The court again disagreed, explaining that CEQA does not require an EIR to consider “each and every conceivable variation of the alternatives stated.”

The plaintiffs next argued that the agencies’ findings of financial infeasibility for the reduced-size alternatives were in violation of CEQA.  The court held that the findings were not supported by substantial evidence because they failed to consider all of the Resort’s revenue streams, and not just income generated from the sale of ski lift tickets.  The court explained that, had the economic analysis considered all sources of revenue, it would have concluded that the reduced-size alternative would be less profitable, but not economically infeasible.  The plaintiffs also argued the agencies failed to adequately explain why the reduced-size alternatives were rejected as economically infeasible.  The court again agreed, explaining the failure to include information on how additional revenue streams would enable the ski resort to be financially viable in the future was misleading to the public because it suggests that ski lift ticket sales revenue is the only relevant factor in assessing the financial viability of the Resort.

The plaintiffs next challenged the EIR/EIS’s analyses of soil, water, and air quality impacts.  The EIR/EIS proposed several mitigation measures to reduce the impacts on these resources to a less than significant level.  The court rejected each of the Plaintiffs’ arguments, finding each mitigation proposal was based on substantial evidence.

The plaintiffs also unsuccessfully challenged the adequacy of the EIR/EIS analysis of construction noise impacts.  The EIR/EIS adopted both the County’s and TRPA’s noise ordinance as thresholds of significance.  Both of these ordinances exempted daytime construction noise from noise limitations, and plaintiffs therefore argued the noise analysis did not meaningfully consider noise.  However, the EIR/EIS also included a separate detailed analysis of the construction noise impacts.  The court therefore found substantial evidence existed to support the conclusion that the noise impacts were less than significant because the EIR/EIS did not rely on the exemption in the ordinance and evade doing a separate analysis of construction noise impacts.

Finally, the plaintiffs argued that the EIR/EIS failed to adequately analyze noise impacts associated with expanding the Resort’s snowmaking system.  A plan for the expanded system was submitted with the project, but that plan was not part of the approval granted by the agencies and any specific snowmaking expansion plan would require further approval from the county and TRPA.  The EIR/EIS therefore included a “worst case scenario” to assess and mitigate those impacts.  The court held the EIR/EIS did not improperly defer analysis of the snowmaking expansion’s noise impacts; rather, its program-level analysis provided sufficient detail to allow the public and decision makers to understand and meaningfully consider the impacts.

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

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

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

Wednesday, November 7th, 2012

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

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

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

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

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

Key Point:

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

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

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

Appellate Court Upholds City’s Approval of Large Commercial Project Even with Unknown Impacts on Greenhouse Gas Emissions, Deferred Mitigation, and Rejected Alternative

Monday, August 6th, 2012

UPDATE: On August 27, 2012, the Fourth Appellate District Court certified Rialto Citizens for Responsible Growth v. City of Rialto (2012) 2012 Cal. App. LEXIS 849 for full publication.

In a decision certified for partial publication, Rialto Citizens for Responsible Growth v. City of Rialto (2012) 2012 Cal. App. LEXIS 849, the Fourth Appellate District Court upheld the City of Rialto’s (City) approval of a 230,000 square-foot commercial retail center with a 24-hour Wal-Mart “Supercenter.” Rialto Citizens for Responsible Growth (Citizens) challenged the City’s certification of the environmental impact report (EIR) and approval of the project alleging violations of the Planning and Zoning Law and the California Environmental Quality Act (CEQA). After reviewing the City’s actions, the appellate court found no prejudicial abuse of discretion and overturned the lower court’s judgment in its entirety.

In the published portion of the opinion, Citizens argued the City violated the Planning and Zoning Law by releasing a notice of public hearing omitting the planning commission’s recommendations, and by approving the development agreement without expressly making a finding that the agreement was consistent with the general and specific plans of the project site. The court agreed with Citizens on both counts. However, due to Citizens’ failure to show prejudice, substantial injury, or probability of a different result, the court concluded the errors were harmless and upheld the City’s actions.

In the unpublished portion of the decision, Citizens alleged that the City had violated CEQA; the court upheld the City’s actions and the EIR on all counts. First, the court found the project description was incomplete because it did not include the development agreement in a listing of “permits and other approvals required to implement the project.” However, the omission did not prevent informed decision-making and therefore the purposes of CEQA were still fulfilled.

Second, the court held the EIR had adequately analyzed the project’s cumulative impacts on both traffic and air quality. The court explained that the traffic analysis complied with CEQA by relying on a summary of projections contained in a prior environmental document. With regard to air quality, the EIR concluded the project would have a significant cumulative impact since the project alone would release emissions beyond the recommended threshold. The court therefore affirmed the City’s decision to analyze the project’s cumulative impacts on air quality based on the project’s emissions alone, as opposed to in relation to other nearby projects.

Third, the court upheld the EIR’s discussion on the project’s cumulative impacts on greenhouse gas emissions and global climate change, as well as its conclusion that the impacts were too speculative to determine. According to CEQA, if an agency conducts a thorough investigation and finds that an impact is too speculative for evaluation, “the agency should note its conclusion and terminate discussion of the impact.” The court found the City had conducted a thorough investigation and researched the methodologies that were available. Given the absence of established guidelines or methodologies with which to measure the project’s individual impact on greenhouse gases, the court held the City did not abuse its discretion in concluding the impacts were too speculative to determine.

Fourth, the court found the EIR’s mitigation measures to reduce biological impacts on potentially occurring “special status” plant and animal species were sufficiently definite and did not constitute improper deferral. The court explained that the mitigation measures incorporated specific performance criteria, such as “formal consultation” with either the U.S. Fish and Wildlife Services or the California Department of Fish and Game, and therefore were not so open-ended as to allow potential impacts on the species to remain significant.

Lastly, the court concluded the City properly rejected the “reduced density alternative.” Pursuant to CEQA, an agency cannot approve a project with significant environmental impacts unless it looks at alternatives, but it can reject an alternative as infeasible if the alternative does not meet the project’s objectives. While the City’s project has significant impacts and is environmentally inferior to the “reduced density alternative,” the court found substantial evidence supporting the City’s infeasibility determination.

Key Point:

Pursuant to Government Code section 65010, a party challenging an agency’s actions based on violations of the Planning and Zoning Law must establish that such errors were prejudicial. The CEQA portion of the decision was not published. The decision addresses a number of reoccurring CEQA issues. If published, the decision would provide important guidance concerning analysis of cumulative impacts, greenhouse gas emissions, alternatives, and deferred mitigation.

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

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

Newly Published Appellate Decision Holds Analysis of Parkland Impacts for Campus Master Plan Fails to Comply with CEQA

Thursday, July 5th, 2012

The City of Hayward v. Board of Trustees of the California State University, 2012 Cal. App. LEXIS 761, publication status was recently changed from unpublished to published on June 28, 2012. The Board of Trustees of the California State University (Trustees) approved a master plan to guide the expansion of the Hayward campus. The City of Hayward (City) sued claiming the Trustees’ environmental impact report (EIR) violated the California Environmental Quality Act (CEQA) by failing to analyze the impacts of the master plan on fire protection and public safety, traffic and parking, air quality, and parklands. The California First Appellate District Court found that Trustees’ EIR was adequate under CEQA in all respects except with regard to the analysis of impacts on surrounding parklands.

Trustees’ master plan requires an increase of fire services, either with the expansion or construction of a firehouse. The court held that the EIR adequately analyzed the impacts of the construction. Due to the small area required for a new firehouse along with its urban location, the court also held that the EIR appropriately concluded that the environmental impacts of expanded fire services would be less than significant. Therefore, the court explained, no mitigation measures were required. The court further concluded that it found no deficiency in the EIR’s analysis of cumulative impacts on public services.

The court next addressed the issues of traffic and parking. With the expansion of the college campus comes the need for more faculty. The Trustees’ master plan acknowledged the high cost of housing in California, and therefore explored potential locations to build affordable faculty housing. The EIR conducted an analysis and concluded that construction of faculty housing will not have a significant environmental impact as a result of increased traffic or parking. The court held this conclusion and analysis as sufficient under CEQA, explaining that since the Trustees prepared a program EIR as opposed to a project EIR, they properly evaluated cumulative impacts but deferred site-specific analysis of possible impacts on traffic until a later time. The court next examined the Trustees’ mitigation measures. With the main goal of shifting commuters out of single-occupant cars and into cleaner modes of transportation, the court found “no deficiency” in the way the EIR considered impacts of the master plan on parking and traffic, incorporated mitigation measures, and reached the conclusion that some environmental impacts are unavoidable. Lastly, the City claimed that the Trustees’ EIR failed to include a “mitigation measure … providing for the University to pay its fair share of traffic improvements.” City of Hayward, 2012 Cal. App. LEXIS 761 at 61. Since the City did not raise this issue in its opening brief, the court declined to address it because the argument had been waived.

Pertaining to impacts on air quality, the court supported the Trustees’ EIR. While the EIR concluded that the master plan would produce long-term emissions of pollutants, it presented transportation mitigation measures that would reduce some, though not all, emissions to a less than significant level. Since neither the trial court nor the City suggested other mitigation measures, the court held this portion of the Trustees’ EIR to be sufficient.

Analysis of the impacts on parklands was the one area the court found the EIR to be inadequate. Due to the proximity of two parks to the campus, the court explained that the EIR must do more than simply reference insignificant impacts on the East Bay Regional Park System. The Trustees’ EIR should rather analyze impacts on the two parks specifically. The court also held that the Trustees’ reliance on “long-standing use patterns” was done in error. Since the EIR made no attempt to determine the extent to which the current student body uses the parks or to extrapolate from that data as to what park usage might be in the future, there was no evidence to support Trustees’ assumption that the student use of the parks would remain nominal even after campus expansion.

Key Point:

The court found that the Trustees’ EIR inadequately analyzed the master plan’s impacts on parklands because, due to the proximity of the two parks, an analysis of impacts on the regional park system in general was too broad. The court also made clear that to support findings and analyses in an EIR, there needs to be concrete evidence; the Trustees should have attempted to ascertain the overall usage and capacity of the two nearby parks.

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

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