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Court Grounds Lawsuits Challenging Wind Farm’s Impacts on Airport in Kern County

Monday, July 21st, 2014

In Citizens Opposing a Dangerous Environment v. County of Kern, 2014 Cal. App. LEXIS 679, the Court of Appeal for the Fifth District upheld the trial court’s denial of a writ of mandate challenging Kern County’s (the County) approval a wind farm near a private airport east of Tehachapi.

The proposed wind farm would include 116 wind turbine generators (WTGs) and be 1.2 miles away from the Kelso Valley Airport (the Airport).  The airport is often used to land gliders, which lack an engine and require a greater distance than an airplane to properly descend for landing.  Citizens Opposing A Dangerous Environment (CODE) (whose membership included the owner of the Airport) claimed that construction of the 400-foot tall WTGs in such close proximity to the Airport, left glider pilots with only one safe landing route and created a significant risk of collision.

The court first rejected CODE’s argument that the County violated the California Environmental Quality Act (CEQA) by approving mitigation measures in the environmental impact report (EIR) that were not legally feasible.  The EIR mitigated the impacts on air navigation safety by requiring the developer to obtain a “Determination of No Hazard to Air Navigation” from the Federal Aviation Administration (FAA) for each proposed WTG (Mitigation Measure 4.8-8).  However, CODE contended Mitigation Measure 4.8-8 was inadequate because the FAA had no authority to enforce its determinations.  Noting that the FAA is the only government agency with jurisdiction over air safety, the court found that even though the FAA could not directly stop construction of the WTGs, the County only approved building permits for the WTGs if the developer obtained the proper FAA determination.  As a result, Mitigation Measure 4.8-8 was feasible because the County had the necessary authority and means to stop construction and prevent any of the adverse impacts on air navigation safety.

CODE also contended that the County violated CEQA because it did not respond to a comment submitted after the public comment period had ended.  Citing Gray v. County of Madera (2008) 167 Cal.App.4th 1110, the court held that the County “may, but is not required, to respond to late comments.” Because the County had discretion to respond to the late comment, the court found no CEQA violation.

The court also rejected CODE’s argument that Mitigation Measure 4.8-8 would not be effective.  The court emphasized that the burden was on CODE to show that there was no substantial evidence to support the County’s approval of Mitigation Measure 4.8-8.  CODE argued that the FAA investigators did not receive all of the information regarding the Airport, improperly failed to contact the Airport owner, and only conducted a cursory investigation before making its determination. While declining to question the judgment of the County, the court noted that the FAA had received the EIR during its investigation and held that there was substantial evidence to support the County’s approval of Mitigation Measure 4.8-8.

Lastly, the court held that the County was not required to adopt CODE’s proposed mitigation measures or the alternative in the EIR that lessened the impacts on aviation safety by reducing the number of WTGs on the wind farm.  Mitigation Measure 4.8-8 significantly reduced the environmental impacts on air navigation safety and the County was not required to do more even if other, arguably more effective, alternatives were available.

Mining the Administrative Record for Answers: Appellate Court Reverses Trial Court for Ignoring Substantial Evidence and Making Improper De Novo Determinations on Quarry Project

Thursday, June 12th, 2014

In an unpublished decision, Citizens Advocating for Roblar Rural Community v. County of Sonoma, 2014 Cal. App. Unpub. LEXIS 3393, the Court of Appeal for the First District reversed the trial court’s decision granting a petition for writ of mandate that challenged County certification of a final environmental impact report (EIR) and issuance of necessary land use permits for an aggregate quarry.

In December 2010, the County of Sonoma certified an EIR for development of a 65-acre quarry pit for mining and processing of approximately 570,000 cubic yards of aggregate material annually.  Petitioner filed a petition for a writ of mandate challenging the county’s quarry project approvals in January 2011. The trial court granted the petition in part, finding that failure to study potential water quality contamination from a neighboring landfill resulted in factual conclusions unsupported by substantial evidence.  The trial court also found that mitigation measures were inadequate or constituted a prohibited deferral of mitigation, and that the EIR’s analysis of the impact of widening an access road on an adjacent creek was inadequate.

On appeal, the court reversed, finding that the trial court improperly ignored substantial evidence supporting the county’s actions and made improper de novo determinations.  First, with respect to petitioner’s argument that the EIR did not adequately study potential groundwater quality impacts, the EIR acknowledged the risk that contaminants from the landfill could seep into the quarry site as a result of mining operations.  Petitioner contended that the county should have conducted testing to determine the risk posed to regional water quality.  Instead, the county relied on groundwater monitoring well data and subsurface exploration to support its finding that the risk to groundwater quality was less than significant.  The court of appeal found substantial evidence supported the county’s conclusion, which must be upheld even if another conclusion could have been reached.

Next, the court addressed allegations that the EIR failed to properly analyze traffic mitigation.  The County concluded that roadway improvements on Roblar Road , which were required to mitigate traffic impacts, would have less than significant secondary impacts on the adjacent Americano Creek. The court found that the secondary environmental impacts of offsite mitigation measures, including widening of access roadways, were catalogued and discussed in significant detail in the EIR. Petitioner argued that the road widening was an integral aspect of the project as a whole requiring complete analysis. The court rejected this argument since this would eliminate any distinction between primary and secondary environmental impacts by making all proposed mitigation a “project component.”

Finally, petitioner contended that the EIR was inadequate because mitigation measures to address impacts to protected species did not describe, analyze, or mention the site of a required offsite mitigation preserve, precluding the county from determining if the mitigation was even feasible. The court found that the county did not defer mitigation because it properly identified a specific means of mitigating for the loss of habitat through the creation of habitat or preservation of existing habitat at a ratio consistent with state and federal law. The county could rely on future study to identify the particular details of mitigation measure implementation, including habitat location.

Key Point:

This case highlights the deferential treatment that courts give to lead agencies in reviewing EIR adequacy; despite the potential to arrive to alternate conclusions, the lead agency’s determination will be upheld as long as it is supported by substantial evidence. In addition, this case upholds reliance on later approvals from responsible agencies to mitigate for loss of habitat where the EIR species the impact and requires replacement of lost habitat in a manner consistent with state and federal law.

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.

Appellate Court Upholds CEQA Exemption for New Fiber-Optic Cable Utility Boxes in San Francisco

Tuesday, May 13th, 2014

In an unpublished decision in San Francisco Beautiful v. City and County of San Francisco, 2014 Cal. App. Unpub. LEXIS 3108, the First District Court of Appeal affirmed the denial of a writ of mandate challenging the City and County of San Francisco’s decision to approve AT&T’s installation of 726 metal utility boxes without requiring an Environmental Impact Report (EIR).

The utility boxes would be used to expand AT&T’s fiber-optic cable network in the city.  The utility boxes would be approximately two feet tall and two feet wide and one foot deep, and be placed on public sidewalks throughout the city. The San Francisco Planning Commission found that the project could rely on CEQA’s Class 3 categorical exemption for “construction and location of limited numbers of new, small facilities or structures; installation of small new equipment and facilities in small structures . . . .”  Neighborhood groups San Francisco Beautiful and the Planning Association for the Richmond challenged the Planning Commission determination, arguing that the utility boxes presented “unusual circumstances” and would have cumulative significant effects on the environment that required preparation of an EIR.

San Francisco Beautiful first argued that the Class 3 exemption only applied to “previously existing” small structures.  The court rejected this argument, stating that it did not matter whether the structures were previously built and that if the Legislature had intended that, it would have said so.

San Francisco Beautiful further argued that, even if the Class 3 exemption applied, the project fell within an exception. First, San Francisco Beautiful argued that the “unusual circumstances” exception in CEQA Guidelines section 15300.2, subdivision (c) applied, which states that no CEQA exemption applies where there is a reasonable possibility the activity will have a significant environmental effect due to unusual circumstances. The court disagreed, holding that the utility boxes: 1) did not present unusual circumstances because they did not differ from the general circumstances of other sidewalk structures, and 2) the circumstances did not create an environmental risk that did not exist for all other sidewalk structures.

San Francisco Beautiful also argued that the cumulative impacts of the project took it out of the Class 3 exemption. CEQA Guidelines section 15300.2, subdivision (b) provides that an exemption does not apply “when the cumulative impact of successive projects for the same type in the same place, over time is significant.”  The court found this exception inapplicable because the utility boxes were not in the “same place” as required by the express language of the exception. Cumulative effects are limited to the effects of each utility box, not the net effect of all boxes throughout the city. The court stated that the exception would swallow the rule if the court found otherwise as agencies would always be required to consider the impacts of successive similar projects, which would almost always result in significant impacts over time.

San Francisco Beautiful finally argued that the city imposed mitigation measures and, as a result, the project could not qualify for an exemption. San Francisco Beautiful pointed to a memorandum of understanding between the city and AT&T in which AT&T agreed to, among other things, pay the cost of graffiti removal, provide for additional notice for each cabinet site, and consider non-sidewalk locations for the cabinets. The court found that this agreement was not the basis of the city’s approval of the project. As a result, the memorandum of understanding did not constitute a mitigation measure and the plaintiffs’ writ of mandate was denied.

Key Point:  The court acknowledges a continuing split in authority regarding the proper standard of review for determining whether the “unusual circumstances” exception applies to use of a categorical exception.  The court dodges the issue, however, finding that it would reach the same result whether it reviewed the record for substantial evidence to support the city’s determination or for evidence to support a fair argument of a significant impact.

COURT FINDS PROGRAMMATIC EIR FOR RETAIL DEVELOPMENT INCLUDED INADQUATE ANALYSIS OF URBAN DECAY AND ENERGY IMPACTS

Monday, April 7th, 2014

In California Clean Energy Committee v. City of Woodland, 2014 Cal. App. LEXIS 300, certified for partial publication on April 1, 2014, the Third District Court of Appeal reversed the trial court’s denial of a petition for writ of mandate to vacate the City of Woodland’s certification of an EIR for a regional shopping center.

In 2007, a developer applied to annex 154 acres of agricultural land to the City and rezone it to general commercial use in order to build a regional commercial center known as “Gateway II.” After preparing an EIR, the city council approved the project, but reduced its size to 61.3 acres. The California Clean Energy Committee, a nonprofit organization, filed a petition for writ of mandate challenging project approval and certification of the EIR.

The court considered the sufficiency of the City’s mitigation measures for urban decay under CEQA. The court upheld a measure requiring primarily “regional retail” uses at Gateway II, upholding the City’s conclusion that the measures would help lessen, although not avoid completely, the potential urban decay impacts. The court, however, agreed with the Committee that a measure requiring the developer to submit a market study and urban decay analysis for future specific projects within Gateway II improperly delegated to the applicant responsibility for studying impacts in violation of CEQA. Further, the court agreed with the Committee’s contention that the market study measure provided no performance standards for evaluating whether additional mitigation should be required, in violation of CEQA.

Additional measures the court deemed inadequate required the developer to contribute fifty percent toward the cost of a retail strategic plan and an implementation strategy for the City’s Downtown Specific Plan. The court noted that these measures committed the developer to pay fees, but the fees were not tied to any planned action that would obligate the City to undertake actual mitigation of urban decay.

The court then addressed whether the City had given sufficient consideration to a mixed use alternative to the project.  The draft EIR concluded that the alternative was infeasible due to economic considerations; however, the city council findings rejected the alternative as environmentally inferior to the project.  The court explained that there was no support for the council’s determination, since the EIR concluded that environmental impacts of the alternative would be similar to the project impacts.

Finally, the court considered the City’s treatment of energy impacts. The court noted that the EIR discussion of energy comprised less than one page; included no assessment of or mitigation for transportation energy impacts; concluded that compliance with the Building Code and CALGreen alone would adequately mitigate construction and operational energy impacts; failed to address the energy impacts of the non-retail uses proposed for the site (including office and hotel); and gave no consideration to renewable energy options. Based on these facts, the court concluded that the analysis was deficient.

In an unpublished portion of the opinion, the court considered whether the City’s actions in approving Gateway II violated the State Planning and Zoning Law because the project was inconsistent with the City’s General Plan policy of revitalizing its downtown.  According to the Committee, Gateway II had the potential to cause urban decay by attracting retail development to the City’s periphery. The court held the Committee had failed to preserve this argument because its complaint had focused on the CEQA implications of urban decay, and had not apprised the City of an alleged violation of the Planning and Zoning Law.

KEY POINTS:

Under the court’s ruling, mitigation requiring a developer to undertake future studies of urban decay is inadequate mitigation. Instead, the agency itself must undertake the study, and some performance standard must be included to assess whether additional mitigation is needed at the time site-specific projects are considered.

In addition, an agency should not adopt a rationale different from that included in the EIR for rejecting project alternatives unless the agency’s finding is supported by substantial evidence elsewhere in the record.

Lastly, even in a programmatic EIR, this court found that CEQA’s requirement for consideration of energy impacts requires a comprehensive analysis that addresses all aspects of a project’s potential energy usage and whether renewable energy technologies can play a role in mitigating impacts.

APPELLATE COURT REJECTS MARIN COUNTY EIR AND REQUIRES GREATER MITIGATION TO PROTECT COHO SALMON AND STEELHEAD TROUT

Monday, March 17th, 2014

In an unpublished opinion, Salmon Protection and Watershed Network v. County of Marin, 2014 Cal. App. LEXIS 1578, the Court of Appeal, First District, reversed the trial court and granted an environmental group’s petition for a writ of mandate challenging the sufficiency of the EIR for Marin’s Countywide General Plan (CWP). The Court also overturned an injunction enjoining development along certain creeks in the San Geronimo Valley Watershed.

Recognizing the imminent growth in unincorporated areas of Marin County and the need to protect local creeks as a habitat for threatened species such as coho salmon and steelhead trout, Marin County updated its CWP in 2007. The EIR for the 2007 CWP is a program EIR under section 15168 of the CEQA Guidelines. Salmon Protection and Watershed Network (SPAWN) contended the EIR failed to comply with CEQA because the EIR improperly analyzed the cumulative effects of the CWP and inadequately mitigated the impacts of development.

Although program EIRs require less specificity than project EIRs, a program EIR still requires an analysis of the cumulative impacts of the program. While the EIR in this case did have some data regarding the forecasted development in areas critical to the salmonid population, the EIR failed to estimate the maximum impact or range of impacts of development under the 2007 CWP. Marin County argued the impacts depend on the degree to which resources are protected as part of each individual project, but the Court stated that under this logic, no analysis of the cumulative effects could ever be made because the cumulative effects would not be known until the last project has been proposed. The Court found the EIR did not provide sufficient analysis to assist decision-makers and the public in understanding the consequences of projects in the San Geronimo Valley Watershed under the 2007 CWP. Therefore, the Court required the County to prepare a supplemental EIR properly analyzing the impacts of the 2007 CWP.

The Court also found mitigation proposed for impacts to aquatic habitats to be inadequate. CEQA Guidelines section 15126.4, subdivision (a)(2) requires mitigation measures to be “fully enforceable through permit conditions, agreements, or other legally-binding instruments.” The EIR proposed Marin County “actively participate” and “work cooperatively to implement recommendations” of a coalition of Central Coast counties known as FishNet 4C. FishNet 4C’s mission is to facilitate actions that improve water quality and restore habitat for species such as coho salmon and steelhead trout, but the Court found merely participating in this mission was inadequate. Even though there was data to support FishNet 4C’s successful restoration of riparian habitat, there was nothing legally binding or enforceable regarding Marin County’s participation in FishNet 4C. Additionally, neither the EIR nor FishNet4C defined any specific measures to take regarding the species in San Geronimo Valley Watershed. The Court held that deferring specific mitigation measures in this manner failed to comply with CEQA.

Marin County, however, was successful in overturning the trial court’s injunction that prevented the County from approving any development in stream conservation areas in the San Geronimo Valley Watershed, as defined in the 2007 CWP. The trial court granted the injunction because the EIR stated that Marin County should adopt a new stream conservation area ordinance as mitigation to reduce the impact on these riparian habitats. Because the ordinance was required by the EIR, SPAWN argued – and the trial court agreed – the County should be prohibited from authorizing new development until the ordinance was implemented.

The Court overturned the injunction because the trial court ordered this remedy without giving the County any notice or an opportunity to address its pertinence. The injunction also significantly affected individuals seeking to develop projects in the area without giving them an opportunity to address the matter. The court also found no evidence to support the conclusion that an injunction was necessary. Because of these substantive and procedural flaws, the trial court did not have the authority to order an injunction enjoining development in the stream conservation areas.

Court Holds EIR’s Inadequacy Is Rooted In Its Failure to set Forth A Significance Threshold For Impacts To Old Growth Redwoods And To Properly Disclose Related Impacts And Mitigation Measures

Tuesday, February 18th, 2014

In Lotus v. Department of Transportation, 2014 Cal. App. LEXIS 97, the California Court of Appeal, First Appellate District, reversed the trial court’s denial of appellants’ petition for writ of mandate challenging the adequacy of the EIR for a highway realignment project.

The California Department of Transportation (Caltrans) sought to realign and widen portions of Highway 101 traversing Richardson Grove State Park in Humboldt County. The existing highway could not accommodate industry standard-sized trucks. Caltrans noted that this lack of access affected the competitiveness and profitability of Humboldt County businesses. The primary environmental impact from the highway realignment identified in the EIR was the removal of redwoods and the excavation and filling within in the root zone of old growth redwoods.

In the published portion of its decision, the court held the EIR was inadequate in that it failed to properly evaluate the significance of impacts on old growth redwoods from the excavation and filling operations within the trees’ root systems. The fundamental problem with the EIR was that it failed to include a clearly defined significance threshold for these potential impacts.  Instead, the EIR merely identified a series of special construction techniques that were treated as part of the project (rather than mitigation) and the EIR concluded that in consideration of the special construction techniques all potential impacts, including impacts to the trees’ root system, would be less than significant.  The court was very critical of this approach.  Because Caltrans had not identified a standard for measuring the significance of impacts and had not explained what impacts would occur in the absence of mitigation measures, it was impossible to know which of the mitigation measures identified were necessary to avoid significant impacts or whether alternative measures might be more effective.

The court observed that “[b]y compressing the analysis of impacts and mitigation measures into a single issue, the EIR disregards the requirements of CEQA.” Caltrans, for example, appears not to have adopted a formal monitoring or reporting program as required by CEQA because Caltrans treated the proposed special construction techniques as part of the project.  The trial court questioned whether this was proper but concluded the record demonstrated that Caltrans had a method to track the project specific environmental commitments and that the special construction techniques would also be incorporated into contract plans and specifications. While the trial court found this to be sufficient, the First District Court of Appeal disagreed finding that notwithstanding these commitments Caltrans failure to fully comply with CEQA could not be considered harmless.  Therefore, the court reversed the trial court’s decision and remanded.

In three unpublished portions of the opinion, the court rejected appellants’ other challenges to the EIR’s sufficiency. First, the court found the EIR provided an adequate description of the project’s environmental setting. The EIR described the redwoods as the predominant plant community in the park and included tables setting forth the size and type of individual trees, as well as a map depicting the location of these trees and the proposed realignment of the highway. Second, the court determined the project’s scope was adequately described. The technical information sought by appellants relating to the software used in the project’s design would have constituted “extensive detail beyond that needed for evaluation and review of the environmental impact,” contrary to the directive of CEQA Guideline 15124. Lastly, the court held that a cumulative traffic impacts analysis was unnecessary here. Various studies supported Caltrans’ conclusion that the project would not divert traffic from I-5 and would not lead to a significant increase in commercial truck traffic in Humboldt County, even factoring in other regional highway realignment projects.

KEY POINTS:

Significance thresholds must be clearly defined for all potential impacts analyzed in an EIR.  It is not uncommon for project features to play a role in mitigating potential impacts of a project.  However, where project features resemble mitigation measures it would be prudent to treat them as such including listing them in an adopted monitoring or reporting program as required by CEQA.

Court Allows ARB’S LCFS Regulations to Remain In Effect Pending Outcome of New Proceedings

Thursday, August 8th, 2013

In POET, LLC v. California Air Resources Board, 2013 Cal. App. LEXIS 554, the Fifth District Court of Appeal reversed the trial court’s decision denying plaintiffs’ petition for a writ of mandate seeking invalidation of California Air Resources Board (“ARB”) approval of low carbon fuel standards (“LCFS”) regulations for non-compliance with CEQA. In an unpublished part of its opinion, the court further ruled that ARB violated the Administrative Procedures Act (“APA”) by failing to include consultant e-mails in the rulemaking file. Nevertheless, the court allowed the regulations to remain in effect, pending completion of CEQA- and APA-compliant proceedings.

The Global Warming Solutions Act of 2006 (“AB 32”) directed ARB to devise and implement strategies to reduce carbon emissions. As part of its compliance with this mandate, ARB developed LCFS performance standards imposing a limit on the annual average carbon intensity of fuels used by regulated parties. In approving the LCFS standards, ARB’s Board delegated to the Executive Officer the duty to respond to environmental issues.

Plaintiffs filed a petition for writ of mandate to set aside the LCFS regulations, alleging the Board had violated CEQA by: (1) approving the regulations prior to completion of environmental review; (2) delegating partial decision-making authority to its Executive Officer; and (3) improperly deferring mitigation for increased NOx emissions. The trial court denied plaintiffs’ petition and plaintiffs appealed. On appeal, plaintiffs raised an additional argument that ARB had violated the APA by failing to include relevant consultant e-mails in the rulemaking file.

The court first held an environmental document prepared pursuant to certified regulatory program must be completed before a lead agency may approve a project. The court then determined that the principles regarding the timing of project approval enunciated in Save Tara v. City of West Hollywood, 45 Cal. 4th 116 (2008), applied to ARB’s actions. A review of the language of the Board’s resolution, agency press releases, and subsequent notices of decision led the court to conclude that ARB had approved the regulations for CEQA purposes at the Board hearing, having committed itself to a particular course of action that foreclosed the Executive Officer’s ability to consider the full range of alternatives.

Next, the court considered whether the Board had improperly delegated decision-making authority to the Executive Officer. The court observed that CEQA’s basic purpose of informing decision-makers about possible environmental effects would be frustrated if the two functions—project review and environmental review—could be performed by different people. The court therefore held that, while delegation may be authorized, splitting the decision-making authority was improper.

The court then examined whether ARB had improperly deferred mitigation for increased NOx emissions from biodiesel. ARB stated it would conduct rulemaking at the end of a test program to ensure no NOx increase and would partially mitigate this impact by promulgating fuel specifications. But because ARB had not established objective performance criteria to measure whether the stated goal would be achieved, the court held it had improperly deferred mitigation.

The court concluded that ARB’s approval of the LCFS regulations should be set aside, but that, on balance, the environment would be better served by allowing the regulations to remain in effect pending ARB’s compliance with CEQA. However, the court prohibited ARB from stepping up enforcement beyond the 2013 levels until it complies with its legal obligations.

KEY POINTS:
The decision-making body of the lead agency cannot delegate authority to certify an EIR pursuant to CEQA while retaining approval authority for a project.
Certified regulatory programs remain subject to the limitations set forth in Save Tara related to timing of project approval.
Courts can, and should, consider the consequences of setting aside a project when crafting the remedy for a CEQA violation.

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.

A Mendocino County Quarry Project Can’t Keep the ACE in the Hole, Court Finds Inadequate the EIR’s Farmland Conversion Analysis

Monday, August 5th, 2013

On July 27, 2010, Mendocino County approved the Kunzler Terrace Mine Project, a 65.3 acre sand and gravel quarry one mile north of Ukiah. Project opponents sued, alleging various CEQA violations. The First District Court of Appeal ruled in favor of the challengers and published the portion of the decision addressing impacts to agricultural lands. The court disagreed with the County and ruled that Agricultural Conservation Easements (ACEs) are not legally infeasible mitigation for site-specific farmland conversion impacts. The court did not publish the remaining portions of the decision, including required recirculation of the EIR with new biological mitigation measures and the adequacy of truck traffic mitigation measures.

Forty-five of the Project’s 65.3 acres are designated prime farmland by the Department of Conservation’s Farmland Mapping and Monitoring Program (FMMP). The project’s EIR concluded there was no feasible mitigation available for the conversion of prime farmland and found the impact to agricultural lands significant and unavoidable. The EIR explained that on-site mitigation is infeasible because the aggregate resources are located directly beneath the farmland and the finished grade after mining will be below the groundwater level. The EIR further explained that off-site mitigation, typically the acquisition of an Agricultural Conservation Easement (ACE), would not mitigate the conversion of farmland. According to the EIR, ACEs only address indirect and cumulative effects of farmland conversion, of which this project has none.

The court stated, “the legal feasibility of a mitigation measure is not a question of fact reviewed for substantial evidence but rather is a question of law that we review de novo.” The court then disagreed with the agency’s legal conclusion and found the “ACEs may appropriately mitigate for the direct loss of farmland when a project converts agricultural land to a nonagricultural use, even though an ACE does not replace the onsite resources.” The court left open the possibility that off-site ACEs may be economically infeasible, but rejected the assertion that ACE’s are legally infeasible.

The court also held that the County failed to adequately respond to a comment letter from the Department of Conservation recommending in-lieu fees as an alternative to the purchase of ACEs. The comment suggests in-lieu fees could be donated to a local, regional, or statewide organization or agency for the purpose of acquiring ACEs. The County’s response stated that the County was legally precluded from accepting in-lieu fees for ACE acquisition because it does not have a comprehensive farmland mitigation program. The court held the County’s response did not address the recommendation that in-lieu fees be paid to entities other than the County and thus failed to explain whether in-lieu fees are feasible mitigation.

The feasibility of mitigating farmland conversion has been a controversial CEQA issue for many years. This case, should it stand, clarifies the legal parameters for farmland conversion analysis required in an EIR. The decision does not address whether ACEs can reduce site-specific farmland conversion impacts to a less than significant level. The court, however, clearly rejected the County’s determination that ACEs are legally infeasible for mitigating site-specific impacts.