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

Friday, September 28th, 2018

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

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

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

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

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

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

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

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

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

Key Point:

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

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.

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

Tuesday, September 27th, 2016

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

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

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

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

Wednesday, July 6th, 2016

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

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

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

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

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

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

SUPREME COURT DELAYS DEVELOPMENT OF NEWHALL RANCH PROJECT

Tuesday, December 15th, 2015

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

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

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

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

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

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

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

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

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

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

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

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

Key Point

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

SECOND APPELLATE DISTRICT FINDS INITIAL STUDY INADEQUATE FOR AFFORDABLE HOUSING PROJECT IN LOS ANGELES

Thursday, November 12th, 2015

In an unpublished opinon, Friends of Highland Park v. City of L.A., 2015 Cal. App. Unpub. LEXIS 8002, the Second Appellate District reversed the trial court, holding that the initial study prepared by the City of Los Angeles for an affordable housing project in Highland Park was inadequate because the study lacked quantified greenhouse gas emission data and failed to report or analyze known soil contamination from a hazardous material.  Based on the initial study, the City had determined that the project would not have a significant effect on the environment and had approved the projected after adopting a mitigated negative declaration (MND).

As a preliminary matter, the Court held that Friends of Highland Park’s CEQA claims were not time-barred by the Subdivision Map Act (SMA), Government Code Section 66499.37, which requires challenges to subdivision map approvals to be filed within 90-days. The Court held the CEQA challenges at issue here do not fall within the SMA filing requirements because the adequacy of an initial study could not have been challenged under the SMA.

Turning to greenhouse gas emissions, the Court found the City’s initial study inadequate because it contained no evidence to support its claim that the potentially significant greenhouse gas emission impacts could be mitigated below a level of significance by using “low and non-VOC containing paints, sealants, adhesives, and solvents” during construction of the project. The Court relied in part on section 15064.4 of the CEQA Guidelines, which requires the use of “a model or methodology to quantify greenhouse gas emissions.” The Court held that the City had not selected a threshold for determining the significance of greenhouse gas emissions and thus there was “no vehicle for judicial review.”

The Court also found the initial study inadequate because it failed to address known lead contamination on the project site. An earlier development agreement acknowledged the existence of lead, but the initial study made no specific mention of lead contamination. However, adoption of the MND was subject to future environmental analyses, which were to be done prior to grading. The Court held that because the lead contamination was known at the time of approval, it should have been analyzed in the initial study.

The Court directed the City to set aside the MND and prepare a new initial study that complies with CEQA.

Executive Order Establishes New 2030 Mid-Term Greenhouse Gas Emissions Reduction Target

Friday, May 1st, 2015

On April 29, 2015, Governor Jerry Brown signed Executive Order B-30-15, which establishes “[a] new interim greenhouse gas emission reduction target to reduce greenhouse gas emissions to 40 percent below 1990 levels by 2030…” (Executive Order B-30-15, ¶ 1, at http://gov.ca.gov/news.php?id=18938.)  The Executive Order requires the California Air Resources Board to express the 2030 target in terms of million metric tons of carbon dioxide equivalent. (Id. at ¶ 3.)  The Executive Order also requires state agencies consider “full life-cycle cost accounting” when making future planning and investment decisions. (Id. at ¶ 6.)  To help state agencies incorporate climate change impacts into planning and investment decisions, the Executive order requires the Governor’s Office of Planning and Research to establish a technical, advisory group on the issue.

 On June 1, 2005, Governor Arnold Schwarzenegger signed Executive Order S-3-05, which among other goals established a target to achieve statewide GHG emissions that are 80 percent below the 1990 levels by 2050.  Governor Brown’s Executive Order B-30-15 does not replace Governor Schwarzenegger earlier 2050 target.  Rather, as explained in Executive Order B-30-15, this new interim target will “ensure California meets its target of reducing greenhouse gas emissions to 80 percent below 1990 levels by 2050.” (Ibid.)  Therefore, Executive Order B-30-15 provides support for the conclusion that a project found consistent with Executive Order B-30-15 is consistent with Executive Order S-3-05.

 In addition to establishing a new interim target, the Executive Order requires the California Natural Resources Agency (Resources Agency) to update the state’s climate adaptation strategy, Safeguarding California, every three years and to ensure that the strategy is fully implemented.  Among other requirements, the strategy must identify a lead agency or group of agencies that are responsible for adaptation efforts in, at least, the following sectors:  water, energy, transportation, public health, agriculture, emergency services, forestry, biodiversity and habitat, and ocean and coastal resources. (Executive Order B-30-15, ¶ 4.)  The lead agencies for each sector must, by September 2015, outline the actions in their sector that will be taken as identified in Safeguarding California and must report back to the Resources Agency on their success by June 2016. (Id., ¶ 5.) 

 Finally, the Executive Order also requires the state to take current and future climate change impacts into account in all infrastructure projects identified in the state’s Five-Year Infrastructure Plan. (Executive Order B-30-15, ¶ 8.) 

 Several bills are pending this legislative session that relate to future GHG targets for the state.  For example, AB 21 would require a statewide greenhouse gas emissions limit for 2030 to be established by 2018.  SB 32 would require a statewide GHG emission limit equivalent to Executive Order S-3-05’s goal of 80% below the 1990 level by 2050 and authorizes interim greenhouse gas emissions level targets to be established for 2030 and 2040.  AB 33 would establish a Climate Change Advisory Council with the duty to develop and analyze strategies to achieve the statewide GHG emissions limit as defined by AB 32 in 2006.  Thomas Law Group will continue to monitor if and how pending legislation is amended to respond to Executive Order B-30-15. 

 

California Supreme Court Grants Review of Decision Invalidating SANDAG Regional Transportation Plan

Wednesday, March 18th, 2015

On March 11, 2015, the California Supreme Court unanimously granted the San Diego Association of Governments’ (SANDAG) petition for review of the Fourth District Court of Appeal’s decision in Cleveland National Forest Foundation v. San Diego Association of Governments (2014) 180 Cal.Rptr.3d 548. A complete summary of the case is available here: http://www.thomaslaw.com/blog/appellate-court-requires-sandag-consider-executive-order-emissions-targets-regional-transportation-plan/, in which a majority of the three-judge panel held SANDAG was required to consider the consistency of its 2050 Regional Transportation Plan/Sustainable Communities Strategy with a 2005 executive order requiring a statewide reduction of greenhouse gas emissions.

The issue on appeal is limited to the following: “Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. 5-3-05 to comply with the California Environmental Quality Act?”

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.

Appellate Court Requires SANDAG Consider Executive Order Emissions Targets in Regional Transportation Plan

Wednesday, December 3rd, 2014

In a split decision in Cleveland National Forest Foundation v. San Diego Association of Governments, 2014 Cal. App. LEXIS 1070, a majority of the three-judge panel of the California Court of Appeal for the Fourth District affirmed a writ of mandate challenging the San Diego Association of Governments’ (SANDAG) environmental review of its 2050 Regional Transportation/Sustainable Communities Strategy (transportation plan).

The court’s decision turned on the significance of the 2005 executive order by Governor Arnold Schwarzenegger requiring statewide reduction of greenhouse gas emissions (GHG) to 2000 levels by 2010, to 1990 levels by 2020, and to 80 percent below 1990 by 2050. The legislature passed SB 375 in 2008, which directed California Air Resources Board (CARB) to develop regional GHG targets for automobiles and light trucks for 2020 and 2035. SB 375 also required each of California’s eighteen metropolitan planning agencies such as SANDAG to develop a sustainable communities strategy that provides a coordinated, long-term land use and transportation plan to meet the state’s emissions goals.

The programmatic environmental impact report (EIR) for SANDAG’s transportation plan analyzed the GHG impacts against three significance thresholds and considered the plan’s potential GHG impacts in 2020, 2035, and 2050. However, the court held SANDAG was required to analyze the transportation plan’s consistency with the 2005 executive order. The EIR did not reflect SANDAG’s reasonable good faith effort at full disclosure because it ignored the executive order’s role in shaping state climate policy.

The court rejected SANDAG’s argument that it was not required to analyze the executive order because there was no statute or regulation translating the order into scientifically-based emissions targets. Although SANDAG may not have known the specific targets and SANDAG had broad discretion to set select the criteria for determining the significance of the environmental impact, SANDAG knew the transportation plan would lead to an overall increase in GHG emission levels after 2020. Accordingly, SANDAG abused its discretion in not considering consistency with the governor’s executive order.

As to the adequacy of mitigation measures for GHG impacts, the court held that the EIR did not adequately mitigate the significant environmental impacts of the transportation plan. The court found that three feasible mitigation measures included in the EIR did not take concrete steps to reduce emissions and were already incorporated into the plan, which nullified any possible mitigating effect.

The court next considered the respondent’s cross appeals that the trial court declined to consider. The court held the EIR did not adequately consider a reasonable range of project alternatives. While the EIR included seven project alternatives, the alternatives all focused on congestion relief, which only provided a short-term reduction in GHG emissions. Instead, the court stated SANDAG should have considered alternatives for reducing total vehicle miles traveled.

The court also held the air quality analysis in the EIR was inadequate. Although SANDAG argued the air quality analysis was sufficient for a program level EIR, the court reasoned SANDAG could not provide any evidence demonstrating that further analysis of air quality impacts at this stage was infeasible.

Lastly, the court held the EIR did not adequately analyze the impact of the transportation plan on agriculture lands because the methodology in the EIR left too many gaps in the data and produced an unreliable estimate of the amount of existing farmland.

In a strongly-worded dissent, Justice Benke criticized the majority for interfering with the CEQA process by telling a lead agency what it must use as a threshold of significance. According to Justice Benke, the executive order does not unilaterally qualify as a threshold of significance. Justice Benke stated that the majority should have deferred to SANDAG in determining the significance thresholds and explained that “[t]here is no legal support for [the majority’s] action, which strips lead agencies of the discretion vested in them by the Legislature and reposes that discretion in the courts.”  Justice Benke was also critical of the majority’s conclusion that the alternatives analysis was inadequate because he believed the majority was “sub rosa directing SANDAG to shift the emphasis in its plan to mass transportation.”

KEYPOINT

Although the majority did not expressly hold that the GHG emissions targets in the governor’s 2005 executive order established thresholds of significance, the majority clearly stated the executive order formed the state’s “climate change policy.” Accordingly, lead agencies must be mindful to consider the 2005 executive order and its targets in both program- and project- level environmental impact reports.