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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.

ON REMAND, FIRST DISTRICT MODIFIES CITY OF HAYWARD OPINION TO REQUIRE FURTHER CONSIDERATION OF THE FEASIBILITY OF OFF-SITE MITIGATION

Tuesday, December 1st, 2015

In its 2012 opinion, City of Hayward v. Board of Trustees of the California State University, 204 Cal.App.4th 446, the First District concluded that the EIR for an expansion of the California State University East Bay campus was adequate in all respects except for its analysis of parkland impacts.  While the opinion also discussed the Trustee’s claim that it was infeasible to provide mitigation payments for off-site traffic impacts without approval from the Legislature, the Court of Appeal concluded that the issue had been waived on appeal because it was not raised in the administrative proceedings or in the trial court. See previous blog post at:  http://www.thomaslaw.com/blog/newly-published-appellate-decision-holds-analysis-of-parkland-impacts-for-campus-master-plan-fails-to-comply-with-ceqa/

The California Supreme Court then granted review and held City of Hayward while it decided City of San Diego v. Board of Trustees of California State University (2015) 61 Cal.4th 945, a case which focused exclusively on whether the feasibility of off-site impact mitigation payments depended on legislative approval. After the City of San Diego opinion was issued holding that state agencies may not avoid their duty to mitigate the environmental effects of their projects because the Legislature has not earmarked funds specifically for “mitigation,” the Supreme Court remanded City of Hayward to the First District for reconsideration.

On remand, the appellate court’s analysis remains unchanged with the exception of section 3(c), which discusses the feasibility of mitigating the off-site traffic impacts. Despite repeating its earlier holding that the issue had been waived on appeal, the court directs the Trustees to consider the feasibility of funding the University’s fair-share contribution due to the “clarification provided by City of San Diego” and the “public importance of the question.”

Supreme Court Rejects the California State University System’s Erroneous Interpretation of City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341 Regarding its Duty to Mitigate Off-Campus Impacts

Tuesday, August 11th, 2015

After months of anticipation, the Supreme Court issued its ruling on City of San Diego v. Trustees of the California State University, S199557, affirming the appellate court’s ruling that the California State University (CSU) should have evaluated one or more possible project modifications to its Project to reduce or avoid unmitigated off-site traffic impacts.

The case centered on CSU’s plans to expand San Diego State University to accommodate more than 10,000 additional students – part of a statewide program to expand CSU’s statewide enrollment capacity by 107,000. Although CSU has budgeted substantial state and non-state funds to expand its campuses, CSU has repeatedly declined to use its financial resources to reimburse other public agencies for its self-determined fair share of mitigating its projects’ off-campus environmental effects. Instead, CSU argued  that pursuant to City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341 (Marina) it may not lawfully pay to mitigate off-campus environmental effects of its projects unless the Legislature makes an appropriation for that specific purpose. CSU argued that, because the Legislature may not make appropriations for CSU’s off-site mitigation purposes, such mitigation was infeasible. Applying its interpretation of Marina, CSU certified the San Diego State University EIR based on a statement of overriding considerations, determining that the project’s benefits outweigh its unmitigated effects.

The Court rejected CSU’s interpretation of Marina, applying a de novo standard of review. The Court held that Marina did not justify CSU’s position that CSU may only contribute funds for off-campus mitigation if designated for that specific purpose. First, the Court held that CSU enjoys some discretion over the use of appropriations. (Citing Ed. Code, §§ 89770, 89771, 89771, 89773, 90083.) Second, neither Marina nor any other decision suggests that mitigation costs for a project funded by the Legislature cannot appropriately be included in the project’s budget and paid with the funds appropriated for the project; this is in-line with CEQA’s directive which requires that “[a]ll state agencies . . . shall request in their budgets the funds necessary to protect the environment in relation to the problems caused by their activities.” (Pub. Resources Code, § 21106; cf. County of San Diego v. Grossmont-Cuyamaca Community College Dist. (2006) 141 Cal.App.4th 86, 101-105.) Third, no provision of CEQA conditions the duty of a state agency to mitigate its project’s environmental effects on the Legislature’s grant of an earmarked appropriation. Finally, the Board’s improper application of Marina depends on a legally unsupportable distinction between environmental impacts occurring on the project site and those off-site.

The Court stressed that CSU’s proposed interpretation of Marina would lead to unreasonable consequences. The Court recognized that such a holding would apply to all state agencies, effectively forcing the Legislature to sit as “a standing environmental review board to decide on a case-by-case basis whether state agencies’ projects will proceed despite unmitigated off-site environmental effects.” (Opinion, p. 19.) The Court also recognized that under CSU’s interpretation, if the responsible state agency were to proceed with a project without mitigation because the Legislature did not earmark funds, the cost of addressing a project’s contribution to cumulative impacts would place a financial burden on local and regional government agencies. Further, CSU’s interpretation would render off-site mitigation infeasible for many if not all state projects and more projects would proceed without mitigation pursuant to statements of overriding considerations. The Court also rejected CSU’s new arguments under Education Code section 67504, Government Code section 13332.15, and Education Code section 66202.5.

Ultimately, the Court held that its rejection of CSU’s interpretation of Marina would preclude the Board from finding mitigation infeasible due to unavailability of earmarked funding for future projects. While CSU’s core function may be education, it also has a duty to “avoid or mitigate the environmental effects of its projects.” (Opinion, p. 26-27.)

Key Point:

State agencies may not avoid their duty to avoid or mitigate the environmental effects of their projects simply because the Legislature has not earmarked funds for “mitigation.” Lead agencies have a duty to consider alternative mitigation measures or alternative funding measures for off-site impacts where its preferred mitigation is uncertain.

Supplement to 16 year old EIR is Acceptable, Project Proponents Need Not Address Every Comment Following Public Review.

Tuesday, July 7th, 2015

In City of Irvine v. County of Orange, (July 6, 2015, G049527)__Cal.App.4th__, the Fourth District Court of Appeal affirmed the adequacy of a Supplemental Environmental Impact Report (SEIR) prepared approximately 16 years after the original EIR was adopted. The court granted publication on July 7, 2015.

The dispute began in 1996 when the City of Irvine (Irvine) challenged the County of Orange’s (County’s) certification of an Environmental Impact Report (EIR) involving the expansion of the Musick Facility (Musick). The Musick facility is a 1,200 inmate jail, and the proposed expansion would make it a 7,584 inmate jail. In Musick I, the court held that the 1996 EIR was adequate, but the project fell through for financial reasons.

In 2011, newly available state funding revived the Musick project. Irvine immediately challenged the County’s application for state funding, alleging that the application for funding itself required an EIR. In Musick II, the court held that there was no need for a new EIR just to apply for state funds.

The County then prepared an SEIR to the 1996 EIR.  The SEIR reflects major changes that have taken place in the area surrounding Musick over the 16 years separating the two documents. First, a proposed airport that was supposed to be built next to the facility was scrapped in favor of a large park. Second, agricultural land around the facility and in the County almost entirely disappeared. Following the County’s certification of the SEIR, Irvine immediately sued, seeking a writ of mandate to invalidate the SEIR, but the trial court denied Irvine’s petition.

On appeal, Irvine raised four arguments: (1) the changes since the 1996 EIR warranted a new EIR, (2) the EIR’s traffic study was inadequate, (3) the mitigation measures for the loss of agricultural land were inadequate, and (4) the County’s responses to comments on SEIR were inadequate. The court of appeal disagreed with Irvine on all its arguments and held for the County.

Irvine argued that the significant changes between the 1996 EIR and SEIR warranted a new EIR altogether. The court disagreed.  While the CEQA Guidelines state that a lead agency “may” prepare a supplemental EIR where “[o]nly minor additions or changes would be necessary to make the previous EIR adequate to apply to the project in the changed situation” (CEQA Guidelines, § 15163), the court noted that a “subsequent” EIR and a “supplemental” EIR are statutorily similar in their requirements.   Moreover, the court explained that the appropriate judicial approach is to look to the substance of the EIR, not its nominal title.

Next, Irvine challenged the SEIR’s traffic study. It alleged that the SEIR is inconsistent in its descriptions of project phasing because it uses 2014 as the date an initial phase of the prison expansion would be completed when the evidence demonstrates the initial phase will not be completed until 2018.  While the court acknowledged an accurate, stable and finite project description is critical, the court explained that evaluation of interim traffic impacts based on anticipated future construction necessarily cannot be predicted with certainty.  Furthermore, the court concluded even if delays in the start of construction resulted in discrepancies, it was nothing more than an “insubstantial and technical error.”

Irvine also alleged that the mitigation measures for the loss of agricultural land were inadequate. But, the court noted that the price of land in the County had far outgrown any feasible level for agriculture to remain profitable. The court noted that a land price of $60,000 per acre is approximately the break-even point for agricultural profitability, and land in the County was averaging $2 million per acre in 2012.

Finally, Irvine argued that the County’s allegedly deficient responses to their comments on the SEIR required a new EIR. Irvine had submitted 88 comments on SEIR, and challenged eight of the responses given by the County. The court noted that the CEQA Guidelines do not specifically require responses to comments, only responses to “significant environmental issues raised.” The court explained:

When a comment raises a “significant” environmental issue, there must be some genuine confrontation with the issue; it can’t be swept under the rug. Responses that leave big gaps in the analysis of environmental impact are obviously inadequate. By the same token comments that bring some new issue to the table need genuine confrontation. And comments that are only objections to the merits of the project itself may be addressed with cursory responses.

The court held that many of Irvine’s comments were “objections to the merits of the project” that the County adequately addressed with cursory responses. For the remaining comments, the court found the County’s responses to be adequate.  The court noted further that the case was “drowning in ‘paperwork’” and Irvine failed to demonstrate any prejudice resulting from the alleged inadequate responses.

Key Point

Age does not automatically render an EIR invalid.  Additionally, the appropriate judicial approach to evaluating an EIR is to look to its substance, not its nominal title.  Furthermore, CEQA Guidelines only require responses to “significant environmental issues raised.”  Comments that do nothing but object to the project’s merits may be addressed with cursory responses.

Court Holds County’s Abandonment of Rights-of-Way is Not a Project Under CEQA

Wednesday, January 28th, 2015

In an unpublished decision, Delucchi v. County of Colusa, 2015 Cal. App. Unpub. LEXIS 231, the California Third District Court of Appeal denied a petition for a writ of mandate challenging Colusa County’s abandonment of purported public rights-of-way and held the abandonment did not constitute a project under the California Environmental Quality Act (CEQA).

The rights-of-way at issue provided access to petitioner’s sixty-acre, landlocked private duck hunting club. Petitioner initially entered into private easements with neighbors to cross the neighbors’ land and access the parcel. When disputes arose with the neighbors, petitioner sued the neighbors and the County, seeking to protect access to his property purportedly as public rights-of-way. Petitioner based his claim on a 1910 subdivision map, which recorded miles of public rights-of-way dedicated by the then-owner and arguably accepted by the County as providing access to the mapped area.

In response to the lawsuit, the County adopted a resolution abandoning the purported public rights-of-way and stating the abandonment was exempt from CEQA.

Petitioner first contended the abandonment was void on its face because the Count did not expressly find the public rights-of-way could not be used for non-motorized transportation. The court rejected this argument explaining the County was only required to consider the evidence presented to it and petitioner failed to satisfy his burden of presenting evidence at the administrative level that the rights-of-way could be used for non-motorized transportation.

To abandon a public right-of-way, the County must find: (1) the right-of-way is unnecessary for present and prospective public use; and (2) the abandonment is in the public interest. Petitioner contended neither element was satisfied. However, the court disagreed and found substantial evidence supported the County’s findings. The court reasoned the rights-of-way were unnecessary because they did not lead to any public land, many ran through irrigation ditches and did not connect to county-maintained roads, and landowners relied of private easements for property access. The court also held abandonment was in the public interest because it avoided litigation costs and promoted the public safety.

The court also rejected petitioner’s contention that the abandonment constituted a project under CEQA. An action is a project only if “the activity may cause a direct, or reasonably foreseeable indirect, physical change in the environment.” The court held there was no direct change because the abandonment did not involve any construction or maintenance activity and any benefit to the environment came from maintaining the status quo. Further, there was no indirect change because petitioner’s speculative claims of landowner’s future conduct did not constitute a “necessary step in a chain of events which would culminate in physical impact on the environment.”

Finally, the court stated that even if the abandonment was a project under CEQA, the common sense exception applied because there was no possibility that maintaining the status quo would have a significant effect on the environment.

Appellate Court Upholds EIR for Fresno County Mining Project

Monday, January 26th, 2015

In a partially published opinion in Friends of the Kings River v. County of Fresno (2014) 232 Cal.App.4th 105, the California Court of Appeal for the Fifth District affirmed the denial of a writ of mandate challenging Fresno County’s (the County) environmental review of a 1,500-acre aggregate mine project.

The County initially approved the environmental impact report (EIR) for the mine in the Sierra Nevada foothills near the towns of Sanger and Reedley in October 2012. Petitioner subsequently appealed the County’s decision to the State Mining and Geology Board (SMGB) alleging violations of the Surface Mining and Reclamation Act (SMARA). The SMGB granted the petition and remanded the reclamation plan for the site back to the County. In August 2013, the County adopted a revised reclamation plan and approved an addendum to the EIR in compliance with SMARA. Petitioner appealed to the SMGB a second time, but the SMGB upheld the County’s approval of the project.

While the first SMGB appeal was pending, petitioner also filed a petition for writ of mandate in Fresno County Superior Court.  The trial court rejected petitioner’s challenges under the California Environmental Quality Act (CEQA) and SMARA.

On appeal, Petitioner argued there was no project for the County to approve because the SMGB’s remand invalidated the reclamation plan. In rejecting petitioner’s argument, the court explained an administrative agency’s authority is limited to powers provided by statute. Under SMARA, the SMGB does not have authority to nullify a lead agency’s decision—the SMGB only has authority to remand for reconsideration or in limited circumstances take over as lead agency.  Accordingly, the SMGB actions had no effect on the County’s certification of the EIR or its approval of the project.  For this reason, all evidence related to the County’s reconsideration of the reclamation plan post-dated certification of the EIR and was not admissible for purposes of evaluating petitioner’s CEQA claims.

The court also rejected petitioner’s argument that the County violated CEQA by failing to adequately mitigate for the loss of 600 acres of farmland. The three mitigation measures recommended by the County included 1) continuing agricultural use of the land up until mining begins; 2) requiring 602 acres be maintained as an agriculture buffer zone for the life of the project; and 3) requiring used mining areas be reclaimed to farmland throughout the project. Still, petitioner contended the County was required to establish permanent agriculture conservation easements (ACEs). The court held that while ACEs may mitigate direct loss of farmland, ACEs are not required by CEQA in all cases where they are economically feasible.  Rather, here the County considered the use of ACEs along with other mitigation measures and selected the three measures listed above.  The court declined to require the County to mandate ACEs instead of the measures it chose.

In the unpublished portions of the opinion, the court held the trial court did not err by ruling on the writ petition, and petitioner could not raise a new SMARA claim for the first time on appeal. The court also rejected other various challenges to the EIR under CEQA.

KEY POINT

When a project presents a loss of farmland, CEQA does not require permanent agriculture conservation easements (ACEs) in every situation where ACEs are feasible. Rather, ACEs are just one mitigation measure that lead agencies should consider to mitigate a project’s impact.

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 Upholds EIR for Perris Dam Remediation Project in Riverside County

Tuesday, November 18th, 2014

In Paulek v. California Department of Water Resources, 2014 Cal. App. LEXIS 999, the Court of Appeal for the Fourth District upheld the trial court’s denial of a writ of mandate challenging the Department of Water Resources’ (Department) approval of an environmental impact report (EIR) for a dam remediation project at Perris Dam in Riverside County.

Following a 2005 study of the dam’s foundation that found structural deficiencies, the Department developed a three-part plan for long-term improvements. The three parts included: 1) fixing the structural deficiencies in the dam’s foundation; 2) replacing the facility’s outlet tower; and 3) constructing a new emergency outlet extension. Despite an initial notice of preparation of a draft EIR that included all three parts, the final EIR did not include construction of the emergency outlet extension. Petitioner sought a writ vacating the Department’s approval of the EIR.

After establishing the petitioner had standing to bring the lawsuit, the court rejected petitioner’s argument that removal of the emergency outlet extension from the final EIR left a significant environmental impact unmitigated. The California Environmental Quality Act (CEQA) only requires a public agency to mitigate the environmental impacts of “projects that it carries out or approves.” The court found the danger from the current emergency outlet extension existed regardless of whether the seismic improvements were made to the other portions of the dam. As a result, the flooding danger was part of the baseline condition that did not fall within the mitigation requirements of CEQA.

The court also rejected petitioner’s argument that removal of the emergency outlet extension into a separate CEQA analysis constituted improper segmentation. While CEQA prohibits “piecemeal” review of projects to avoid a cumulative significant impact, the court found the emergency outlet was a distinct project. It was not a “reasonably foreseeable consequence” of the dam remediation and tower rebuilding because those two projects could occur and remedy the structural deficiencies without the emergency outlet extension. The outlet extension was also not an integral part of same project and not a future expansion of the dam remediation and tower rebuilding that would change the scope of their impacts. Accordingly, the project was not improperly segmented.

Finally, the court found the Department’s responses to petitioner’s comments on the EIR were adequate. Petitioner’s comments did not point to specific deficiencies in the EIR; rather, the comments generally stated the EIR was inadequate and expressed the need for mitigation. The court held the Department’s reference to portions of the EIR addressing petitioner’s concerns were sufficient stating, “a general comment only requires a general response.”

KEY POINT

The court reiterated the standard for improper segmentation of CEQA projects. Although CEQA defines project broadly in favor a comprehensive environmental review, public agencies have discretion to remove discrete portions of a project from the final EIR, even if the removed portion was included in the initial notice.

Court Publishes Portion of a Decision Upholding the Adequacy of a Wind Farm EIR

Tuesday, August 5th, 2014

On July 25, 2014, the Court of Appeal for the Fifth District granted a request to publish a portion of the recent case Citizens Opposing a Dangerous Environment v. County of Kern, 2014 Cal. App. LEXIS 679.  In the decision, the appellate court affirmed Kern County’s approval of a wind farm near a private airport and found that mitigation measures in the environmental impact report (EIR) were legally feasible.

The court published all of the opinion except for parts IV, V, and VI of the Discussion, which addressed the County’s response to late comments on the EIR, the adequacy of the evidence supporting the mitigation measures in the EIR, and the County’s obligation to consider alternatives in addition to the ones already considered in the EIR.

A complete summary of the case (including both the unpublished and published portions) is available here: http://www.thomaslaw.com/blog/court-grounds-lawsuits-challenging-wind-farms-impacts-airport-kern-county/.

KEY POINT

The FAA is the federal agency created to ensure safe and efficient use of the nation’s airspace.   Therefore, a lead agency may properly mitigate potential aviation hazards by requiring a future determination by FAA’s Obstruction Evaluation Service as to whether the proposed project may present an aviation hazard along with a commitment by the lead agency, pursuant to its police power, to prohibit construction until such a no hazard determination is made.

Addendum Upheld: Amendments to San Jose Airport Master Plan Cleared For Landing

Monday, July 21st, 2014

In Citizens Against Airport Pollution v. City of San Jose (2014) Cal. App. LEXIS 588, the Court of Appeal for the Sixth District upheld the trial court’s denial of a writ of mandate challenging the City of San Jose’s (the City) approval of an addendum to an EIR analyzing the environmental impacts of amendments to San Jose Airport’s Master Plan (Airport Master Plan).

The City began updating the Airport Master Plan in 1988 to accommodate the projected growth at the airport.  The City approved the final environmental impact report (EIR) for the update in 1997.  From 1997 to 2010 eight addenda to the Airport Master Plan EIR were approved, with the eighth addendum considering the impacts changes to the size and location of planned air cargo facilities and modifications to the taxiing area of the runway.

Citizens Against Airport Pollution (CAAP) contended that the City violated the California Environmental Quality Act (CEQA) in approving the eighth addendum because the amendments to the Airport Master Plan were so significant that they constituted a new project for purposes of CEQA.  CAAP further contended that the 1997 EIR was a program EIR, as opposed to a narrower project EIR, and that a new EIR should be completed.  The court declined to determine whether the 1997 EIR was a project-level EIR or a broader program EIR, but held that there was substantial evidence to support the City’s finding that the amendments to the Airport Master Plan would not have a significant effect on noise, air quality, or the burrowing owl habitat as CAAP contended.

Relying on an analysis in the addendum that showed a decrease in daily aircraft operations and improved airplane technology resulting in quieter aircraft, the court found that there was substantial evidence that the amendments to the Airport Master Plan would not result in significant noise impacts.

Similarly, the projected decrease in aircraft operations resulted in no significant impact to air quality.  CAAP did not dispute the projected decrease in aircraft operations, thus the court found that there was substantial evidence to support the City’s findings that the impact on air quality was sufficiently analyzed in the 1997 EIR.

The court also found that there was substantial evidence to support the City’s findings that the amendments to the Airport Master Plan would not have a significant impact on the burrowing owls nesting in the unpaved portions of the airfield.  The 1997 EIR had concluded that implementation of the Airport Master Plan would impact the burrowing owl, which is a species of concern in California.  However, the EIR also included a Burrowing Owl Management Plan that established protected sections of the airfield and required biologists to monitor the burrowing owls in the area among other measures.  The eighth addendum included mitigation measures that were consistent with the Burrow Owl Management Plan and even provided for the construction of one-way doors to ensure that no burrowing owls would be trapped in their burrows when construction began.  As a result, the court held that the impact on the burrowing owl population at the airport was not substantially different than the impact considered in the 1997 EIR.

The court also rejected CAAP’s argument that a supplemental EIR was required to analyze greenhouse gas emissions.  A 2010 CEQA amendment requires lead agencies to make a “good-faith effort” to estimate the amount of greenhouse gas emissions from a project.  (CEQA Guidelines section 15064.4.)  However, CEQA does not require a supplemental EIR unless new information becomes available that was not known when the original EIR was completed.  The court held that the potential impact of greenhouse gas emissions was widely known in 1997 when the EIR was completed and in 2003 when a supplemental EIR was completed.  Therefore, the potential impact of greenhouse gases did not constitute new information and a supplemental EIR was not required.

KEY POINT

Once an EIR is completed for a project, a court applies the substantial evidence standard of review to determining whether project changes require a supplemental EIR.  If the lead agency can show there is substantial evidence to support a finding that there will be no significant impacts, the court will permit an addendum to the original EIR instead of a supplemental EIR.