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Supreme Court Holds Inadequate Effort to Explain Nature and Magnitude of Significant Environmental Effect Subject to De Novo Review, Substitution Clause and Sufficient Guidance Make Mitigation Measures Not Vague

Friday, December 28th, 2018

In Sierra Club v. County of Fresno (2018) 2018 Cal.LEXIS 9831, the California Supreme Court held that, where the description of an environmental impact “lacks analysis or omits the magnitude of the [significant] impact,” the reviewing court applies the de novo standard of review.  The substantial evidence standard of review is reserved for wholly factual questions; where a question presented is both legal and factual, the issue shall be reviewed de novo. The Court also found that a substitution clause in a mitigation measure did not constitute deferred mitigation, a mitigation measure that only partially reduced a significant impact did not violate CEQA, and mitigation measures involving HVAC installation and tree selection were adequately enforceable.

The proposed project includes a specific plan and specific plan update covering 942-acres that together contemplate the construction of about 2,500 single and multifamily homes, commercial and recreation areas, and dedicated open space (Project) into a master-planned “pedestrian friendly” community near the unincorporated area of Friant in northern Fresno County (County). The County adopted Project alternative 3 (Northeast Development Configuration, the “environmentally superior alternative”), certified the EIR, and approved the Project.  At the same time, the County adopted a mitigation monitoring program, which noted compliance would be enforced through subsequent conditions on future discretionary actions, including use permits and tentative subdivision maps.

The Sierra Club, Revive San Joaquin, and League of Women Voters of Fresno filed suit alleging that the project approval violated CEQA. The trial court denied the petition for writ of mandate and noted that “it may not exercise its independent judgement on the evidence, but must determine only whether the act or decision is supported by substantial evidence.” Sierra Club timely appealed the decision pertinent to the air quality impacts and certain mitigation measures.

In May 2014, the Fifth District Court of Appeal held that the EIR was inadequate because it failed to include an analysis that “correlated the [P]roject’s emissions of air pollutants to its impact on human health,” only provided air quality impact mitigation measures that were “vague, unenforceable, and lack[ed] specific performance criteria,” and failed to support the claim that the mitigation measures would “substantially” reduce the Project’s significant air quality impacts. The Appellate Court reversed the trial court judgement on those grounds only and directed the preparation of a revised EIR. Real Party, Friant Ranch LP, appealed the Appellate Court decision.

The Supreme Court granted review on the issues of the air quality impact findings and conclusions in the EIR as well as the adequacy of certain mitigation measures.

The Court held that an EIR must (1) include “sufficient detail” to enable readers to understand and to “consider meaningfully” the issues that the proposed project raises, and, (2) make a “reasonable effort to substantively connect” the Project’s significant air quality impacts to likely health consequences.

Further, the Court held a lead agency has not impermissibly deferred mitigation measures where it leaves open the possibility of employing measures consistent with evolving technology nor are such measures impermissibly vague where it can be demonstrated in “good faith” that the measures will be at least partially effective.

The Court first recognized the familiar distinction between the standard of judicial review applicable to claims that the agency failed to proceed in the manner CEQA provides as compared to claims that the agency reached factual conclusions unsupported by substantial evidence: “[w]hile we determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [ ] we accord greater deference to the agency’s substantive factual conclusions.” The Court then recognized that “the question whether an agency has followed proper procedures is not always so clear” especially when the issue is “whether the discussion sufficiently performs the function of facilitating ‘informed agency decisionmaking and informed public participation.’”

Relying heavily on Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 (Laurel Heights I), the Court found that the standard of review for the adequacy of an EIR’s discussion of certain impacts is subject to de novo review where “a description of an environmental impact is insufficient because it lacks analysis or omits the magnitude of the impact is not a substantial evidence question.”

The Court provided several examples and prior decisions addressing procedural issues subject to the de novo standard of review:

  • Did the agency provide sufficient notice and opportunity to comment on a draft EIR? (Fall River Wild Trout Foundation v. County of Shasta (1999) 70 Cal.App.4th 482, 491-493; Pub. Resources Code, § 21092; Guidelines, § 15087.)
  • Did the agency omit the required discussion of alternatives or consider a reasonable range of alternatives? (Guidelines, § 15126.6; Laurel Heights I.)
  • Did the agency fail to reasonably describe the nature and magnitude of a project’s significant environmental effect?  (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1371; Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 514–515.)
  • Did the agency omit material necessary to informed decision making (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712; East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal.App.3d 155, 174)
  • Did the agency respond to comments? (Rural Landowners Assn. v. City Council (1983) 143 Cal.App.3d 1013, 1021–1023.)

The Court contrasted these with factual issues like the decision to use a particular methodology and reject another.

Similar to the facts in Laurel Heights I, the Court found that, while the EIR’s conclusion as to the impact may have been correct, the analysis and discussion of the significant impact was deficient as an EIR must “reasonably describe the nature and magnitude of the adverse effect.” The core purpose of an EIR is to inform the public and decision-making body, regardless of the conclusion drawn. In certifying the EIR, the County failed to disclose the analytic route that it took in making its decision relating to the Project’s significant air quality impact. This was a CEQA procedural issue as the Court determined it resulted in noncompliance with CEQA’s information disclosure provisions. Thus, the Court held, de novo review was proper.  

Applying the de novo standard of review to the EIR’s analysis of the Project’s significant air quality impacts, the Court found that the EIR’s discussion failed to correlate health impacts with the Project’s air emissions as required by CEQA Guidelines section 15126.2. It was insufficient that the EIR provided a “general discussion of adverse health effects associated with certain Project-related pollutants,” recognized “Fresno County suffers from the ‘most severe’ ozone problems,” and acknowledged that a more detailed analysis on health impacts was “not possible at this early planning phase.” Critically, the EIR failed to indicate the anticipated ozone emission levels as a result of the Project. The analysis “[was] not meaningful …because the reader ha[d] no idea how much ozone [would] be produced.”  The Court held that the EIR’s discussion of the Project’s significant air quality impacts was deficient; it must give a sense of the “nature and magnitude of the health and safety problems…resulting from the Project as required by the CEQA Guidelines … [or] explain why it was not feasible to provide an analysis.”

The Court found that briefs from the County, the Real Party, and amici curiae clarifying the connection between air emissions information in the EIR and health impacts information in the EIR were “irrelevant.” Relying on Vineyard, the Court held that the question is not whether the Project’s impacts can be clearly explained, but whether they were at the time that the Project was approved. The County’s plan to require Health Risk Assessments as part of future development projects approved within the specific plan area was also irrelevant where the issue was the sufficiency of the EIR’s discussion of the Project’s significant air quality impacts, not the sufficiency of future studies.

Turning to the Project’s mitigation measures, the Court found that the EIR was incorrect to claim a mitigation measure would “substantially reduce air quality impacts” without factual support.

The Court next held that a mitigation measure is not deficient where it leaves open the opportunity to add or substitute other measures when they become technologically available. The Court established that this kind of substitution clause “should be encouraged….and [was] not an impermissible deferral.”

The Court also held that Project mitigation measures relating to HVAC systems and tree-planting were not impermissibly vague. The first identified the anticipated cost for a HVAC catalyst that was considered feasible and detailed the HVAC brand or equivalent that could be installed. The latter required tree varieties be planted that would shade 25% within 20 years of planting, which “provide[d] sufficient guidance for selecting appropriate shade trees.” Contrary to the Appellate Court’s holding, it was of no issue that the burden of enforcement of mitigation measures was on the County as the EIR and Specific Plan was not impermissibly vague on the means of enforcement.

Finally, the Court held that a lead agency does not violate CEQA for approving a project though the environmental impacts are not reduced to less than significant levels. CEQA is satisfied where a project’s mitigation measures only partially reduced significant impacts “as long as the public is able to identify any adverse health impacts clearly, and the EIR’s discussion of those impacts includes relevant specifics about the environmental changes attributable to the project.” In such a situation, unmitigated effects must be outweighed by the project’s benefits—whether economic, social, technological, or other, as documented in a statement of overriding considerations. 

Key Point:

“[A] sufficient discussion of significant impacts requires not merely a determination of whether an impact is significant, but some effort to explain the nature and magnitude of the impact.” The determination whether an EIR achieves its informational purpose by providing such details is subject to de novo review.

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.

First District Court of Appeals Affirms, Remands LA Railyard Project FEIR, Attorney General Exempt from Exhaustion Requirements, CEQA Analyses Must Be Presented to Adequately Inform

Friday, January 12th, 2018

In City of Long Beach v. City of L.A. (2018) 19 Cal.App. 5th 465,

The First District Court of Appeal concluded that the Port of Los Angeles (Port) Project description was accurate, not misleading, and did not result in piecemealing. As such, the Court affirmed in part and remanded in part a judgement setting aside the City of Los Angeles (City) and Real Party in Interest BNSF Railway Company (BSNF) (collectively Appellants) final EIR related to BNSF’s railyard construction project. The Court also found that the Attorney General has no obligation to exhaust administrative remedies.

At the Port, shipping containers are loaded onto trains at railyard facilities for transport across the Country. The Port is currently served by one “near-dock” railyard facility. Trucks take some containers to “off-dock” railyards, like BSNF’s current facility (Hobart Yard) twenty-four miles from the Port. BSNF proposed a new 153-acre near-dock railyard approximately four miles from the Port, diverting traffic headed to Hobart Yard and increasing the volume of cargo transported in the Port-railway interface (Project).

In 2005, the Port staff issued an initial study and NOP and, later, a supplemental NOP. In 2011, they released a draft Environmental Impact Report (EIR) for the project. In response to public comment, the Port staff revised major portions of the draft and released a revised draft EIR in September 2012 for 45-day public review. Thereafter, a final EIR (FEIR) was issued, identifying significant unavoidable environmental impacts on air quality, noise, GHG emissions, and traffic. Following public review, the board of harbor commissioners certified the FEIR and approved the Project. The resolution was appealed to the Los Angeles City Council, which affirmed certification of the EIR and approval of the Project.

Seven suits were filed in multiple Counties. The Attorney General intervened on one. The trial court, after consolidating the petitions, set aside the certification of the FEIR and project approval. Specifically, the trial court found the FEIR project description and analysis of growth-inducing impacts, cumulative impacts, noise, traffic, air quality, greenhouse gas emissions, and mitigation measures were inadequate. Appellants timely appealed.

The Appellate Court first addressed the Attorney General’s intervention. Appellants alleged the Attorney General failed to abide by exhaustion requirements because he/she did not raise the issues in the administrative hearing that he/she brought in the intervening action. Indeed, no party had raised the claims. The Court found that neither a plain reading of Public Resources Code section 21177’s exhaustion requirements nor the legislative history supported applying the section’s requirements to the Attorney General. The Court found that the Attorney General need not be a party in the administrative hearings nor is he/she limited to raising issues raised during the administrative proceedings because he/she is specifically exempt from both identity and issue exhaustion requirements. (Pub. Res. Code, § 21177 (d).)

The Court next considered the adequacy of the project description. The Court agreed with the trial court that the FEIR project description was sufficient because it was not “misleading or inaccurate.” Unlike San Juaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, the project description at issue in this case did not send any “conflicting signals to decision makers about the nature and scope of the Project” as no part of the FEIR suggested the overall rail capacity would remain unchanged.

The Court then addressed claims that the FEIR failed to address indirect physical changes to the original off-dock railyards. CEQA requires consideration of all “reasonably foreseeable” indirect environmental effects. Here, substantial evidence in the form of worldwide and domestic intermodal business studies supported the City’s conclusion that a predicted amount of economic growth could occur with or without the Project. While the proposed near-dock site would increase the cargo capacity of the Port, because the Project would retire an equal amount of use at the Hobart site and growth would occur regardless of the Project, the Project did not increase the demand or volume of cargo at the Port, it merely changed the place at which the cargo is distributed. The Court found this analysis was adequate.

The Court upheld the conclusion of the trial court that the FEIR failed to adequately inform decision makers and neighbors about the concentration of pollutants in the project vicinity. Despite Appellant’s claim that it performed worst-case-scenario analyses and disclosed air quality concentration impacts, the information was spread throughout the FEIR, never analyzed or discussed, and did not disclose the frequency of significant concentration occurrences. The Court stated that the FEIR was deficient because it did not disclose or estimate how frequently and for what length of time the level of particulate air pollution in the area would exceed the standard of significance—e.g., the duration of the worst case scenario.

The Court was careful to state it did not agree with the trial court’s determination that the composite emissions or the methodology was misleading, but the analysis was instead incomplete because a reader could not compare air pollution concentrations at any given point in time. The Court determined that this deficiency rendered the public and decision makers unable to consider alternatives or mitigation measures, or balance competing considerations before adopting a statement of overriding considerations.

Further, the Court held while the cumulative impact analysis of noncancerous health risks was sufficient, the discussion of cumulative air quality impacts failed to be a “good faith and reasonable disclosure” for the same reasons detailed above. Finally, the Court upheld the FEIR’s GHG analysis, noting that the Project relocating shipping activities twenty miles closer to the ship yard would result in less emissions than not building the Project at all.

The Court affirmed the trial court’s decision to set aside certification of the FEIR and suspend project activities until the City could bring ambient air pollutant concentrations and cumulative impacts analysis into CEQA compliance. The Court reversed the trial court’s judgements on the GHG emissions, noise, transportation and cumulative impact (for noncancerous health risks only).

The Court affirmed in part and remanded in part for further proceedings.

Key Point:

An EIR must display statistical and quantitative reports in a manner which can be understood and easily accessed by laypersons. Although the information may be present in documents, if it cannot be fairly compared and understood (here, it was spread throughout thousands of pages), it will likely not stand up to a CEQA challenge.

The Attorney General is exempt from CEQA identity and issue exhaustion requirements.

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)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

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