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NEWLY PUBLISHED FOURTH DISTRICT OPINION FINDS WAL-MART PROJECT INCONSISTENT WITH GENERAL PLAN AND CREATES NEW FINDINGS REQUIREMENT FOR PARCEL MAP APPROVALS

Monday, June 20th, 2016

On June 15, 2016, the Fourth District Court of Appeal published its opinion in Spring Valley Lake Association v. City of Victorville (D069442). The case involved a CEQA and Planning and Zoning Law challenge to a Wal-Mart project (“Project”) that was approved by the City of Victorville. After the trial court found in favor of Petitioner Spring Valley Lake Association (“Petitioner”) on some of its claims, Real Party in Interest Wal-Mart appealed and Petitioner cross-appealed.

Wal-Mart’s Appeal

Wal-Mart appealed the trial court’s determinations that: (1) there was no substantial evidence in support of the City’s general plan consistency finding; and (2) the EIR had inadequately analyzed the Project’s greenhouse gas emissions impacts. The appellate court affirmed the trial court’s judgment on both issues.

The general plan consistency issue turned on one policy, IM 7.1.1.4, which requires all new commercial or industrial development to generate electricity on-site “to the maximum extent feasible.” The Project was developed to be solar ready, but Wal-Mart did not commit to the installation of panels because, as explained in a response to comment, it was uncertain whether the $750,000 cost would be offset by any federal tax credits or California incentives. Without the offsets, the response stated that the installation was economically infeasible. The court interpreted this response as effectively finding that “there was no extent to which it would be feasible to require the project to generate electricity on-site, whether by solar or other means.” The court held that this finding was not supported by substantial evidence in the record because there was no mention of why non-solar methods of generating electricity on-site were infeasible. The court showed little deference to the City’s own interpretation of what was considered “feasible” in this situation.

Surprisingly, despite the policy’s ambiguous language “to the maximum extent feasible,” the court held that this was a “fundamental, mandatory, and clear” policy. As such, the Project’s failure to be in conformance with this one policy was sufficient for the court to reject the City’s general plan consistency determination. (See Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 782.)

Turning to the EIR’s greenhouse gas analysis, the court held there was conflicting evidence about whether the Project would achieve a 15-percent reduction above Title 24 standards. References in the EIR stated in some places that the figure would be 14-percent, and in others, 10-percent. Because the record did not show the Project would actually achieve the 15 percent reduction, the court held that there was no support for the City’s determination that the Project would not have significant greenhouse gas emissions impacts.

Petitioner’s Cross-Appeal

Petitioner cross-appealed the trial court’s determination that the City did not violate CEQA by failing to recirculate the EIR after it revised the traffic, air quality, hydrology, and biological resources impacts analyses. The court of appeal held that recirculation was required only for the air quality and hydrology analyses because the revisions to those sections constituted “significant new information” and the public did not have a meaningful opportunity to comment on those changes.

Petitioner also argued on appeal that the City violated the Planning and Zoning Law by failing to make all the findings required by Government Code section 66474 before approving the Project’s parcel map. In what appears to be an issue of first impression, the court agreed, relying on an Attorney General’s Opinion from 1975.

Key Point: Going forward, local governments should affirmatively address that the approval of the parcel map does not create any of the issues listed in Government Code section 66474. Local governments should also continue to make findings under Government Code section 66473.5 when approving a parcel map.

Thomas Law Group is requesting depublication of the Court’s general plan consistency discussion as it departs from the existing case law’s emphasis on deference to the agency’s determination of consistency.

FIRST APPELLATE DISTRICT FINDS AGENCY APPROVAL OF 10-YEAR MINING LEASES FAILED TO PROPERLY CONSIDER THE PUBLIC TRUST DOCTRINE

Friday, November 20th, 2015

In San Francisco Baykeeper Inc. v. California State Lands Commission, 2015 Cal. App. LEXIS 1024, the First Appellate District rejected several CEQA challenges to the California State Lands Commission (SLC)’s approval of 10-year sand mining leases, but reversed the trial court on this issue of whether SLC failed to properly consider the public trust doctrine in approving the leases.

In October 2014, the SLC certified the Final EIR and approved the San Francisco Bay and Delta Sand Mining Project, which authorized mining from submerged lands under the San Francisco Bay. San Francisco Baykeeper, Inc. (Baykeeper) challenged the EIR, alleging (1) the baseline was not supported by the record; (2) the SLC failed to analyze properly project impacts on soil erosion and to recirculate; (3) the SLC selected an improper threshold for determining the impact on mineral resources; and (4) that the SLC failed to notify and consult with other responsible agencies.

First, the court held that the SLC’s use of a five-year average of annual mining volumes to establish the baseline condition was proper because it more accurately reflected true baseline conditions and was supported by substantial evidence. Baykeeper argued that this baseline was artificially inflated and did not reflect the conditions as they existed when the agency began its environmental analysis in 2007. The SLC countered that the five-year average was a better indicator of existing mining conditions than the 2007 rate in light of the financial crisis and an unusual drop in mining volume that year. The court agreed, noting that neither CEQA nor the CEQA Guidelines mandate a uniform, inflexible rule for determining the existing conditions baseline.

Second, the court rejected Baykeeper’s assertion that the Final EIR did not adequately analyze the cumulative environmental impacts of commercial sand mining on coastal beach erosion and sedimentation. The court held that the Final EIR’s determination that the mining activity in question would not have a significant impact on coastal erosion was based on substantial evidence. Specifically, the court pointed to additional studies conducted in response to comments on the Draft EIR. Baykeeper argued that these additional studies constituted significant new information, and therefore the SLC was required to recirculate the Final EIR. The court again disagreed, finding that the SLC’s decision not to recirculate was supported by substantial evidence because the new information did not alter any of the substantive conclusions from the Draft EIR. While the parties disagreed about how the studies should be interpreted, the court discounted this as a “battle of the experts.”

Third, the court upheld the Final EIR’s “mineral resources” impact analysis. Baykeeper contended that the SLC improperly deviated from the CEQA Guidelines Appendix G thresholds for measuring impacts on mineral resources, reasoning that Appendix G mandated that the Final EIR evaluate the impact resulting from the allegedly permanent depletion of sand minerals. The court disagreed, stating that the thresholds of significance in Appendix G are only a “suggestion,” and agencies have discretion to develop project-specific thresholds. The court found that SLC’s threshold, which required analysis of impacts on access to mineral resources but not the depletion of those resources, was consistent with existing state policy regarding mineral extraction.

Fourth, the court held that SLC violated CEQA by failing to consult with other trustee agencies, such as the Coastal Commission and the City of San Francisco. However, the court held this violation was not prejudicial because it did not result in the omission of pertinent information from the environmental review process.

In addition to the CEQA challenges, Baykeeper alleged that SLC failed to fulfill its public trust duty because it did not make any findings that approval of the leases was consistent with existing public trust uses. Here, the court agreed, rejecting SLC’s arguments that private sand mining is a categorical per se public trust use, that mining leases do not deplete a trust resource, or that CEQA compliance displaced any independent duty to perform a public trust analysis. Because the SLC failed to fulfill its affirmative duty to “take the public trust into account . . . and to protect public trust uses whenever feasible,” the court reversed and directed the trial court to grant the writ of mandate on this issue.

Key Point:

Agencies have discretion when establishing a baseline, especially in situations where environmental conditions vary from year to year. When developing thresholds of significance, CEQA does not require agencies to use the suggested thresholds in Appendix G. For projects that might adversely affect traditional public trust uses, the agencies administering the land have an affirmative duty to consider the public trust as part of the CEQA review process

SECOND APPELLATE DISTRICT REJECTS CHALLENGES TO THE CITY OF RIVERSIDE’S APPROVAL OF ELECTRIC POWER TRANSMISSION PROJECT

Monday, November 16th, 2015

In an unpublished opinion, City of Jurupa Valley v. City of Riverside, 2015 Cal. App. Unpub. LEXIS 7978 the Second Appellate District affirmed the trial court’s decision to deny the City of Jarupa Valley’s mandamus petition.  The project involved the creation of a transmission line, two substations, and several subtransmission lines to deliver power throughout Riverside.  Riverside had prepared and adopted an Environmental Impact Report (EIR) for the project. On appeal, the issues were whether Riverside violated CEQA by (1) failing to recirculate the Final EIR despite adding new information, (2) not fairly and in good faith analyzing Project alternatives, and (3) pre-committing to the Project.

First, the Court considered Riverside’s decision not to recirculating the Final EIR for public comment after minor alterations to transmission line routes. The Court held that substantial evidence supported Riverside’s decision not the recirculate, as the changes did not result in new or substantially increased environmental impacts. Rather, these changes resulted in reduced environmental impacts because they involved moving the transmission lines behind a store rather than cutting through the parking lot to avoid aesthetic and roadway impacts and burying the lines underground near the airport to avoid air traffic safety impacts.

Second, the Court upheld Riverside’s decision to reject underground transmission lines and an alternative routing option as infeasible because the decision was based on substantial evidence. The Court held that neither option had to be extensively analyzed as a project alternative because both options failed to satisfy the project objectives at the outset. Specifically, the high cost of underground transmission lines would not meet the project’s “cost effective” goal and the proposed alternative route would have greater environmental impacts than the chosen route and therefore failed the project’s objective of “minimizing environmental impacts.”

Third, the Court found Riverside did not impermissibly “pre-commit” to the project by including obtaining CAISO approval, pre-selecting a preferred route, committing funds to the project, and signing an Interconnection Facilities Agreement  with Southern California Edison.  The Court held that none of these steps obligated Riverside to approve the project, nor did they effectively precluded any alternatives or mitigation measures that CEQA would otherwise require to be considered. The Court also noted that modifications to the project in response to public comment showed that Riverside did not pre-commit.

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

Monday, November 9th, 2015

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

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

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

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

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

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

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

Key Point:

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

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.

Court Turns Tide in Favor of Desalination Plant – Holds Ample Substantial Evidence Supports the Project’s EIR

Monday, May 27th, 2013

Almost four years after the Marin Municipal Water District (MMWD) certified an environmental impact report (EIR) and approved a five million gallon a day desalination plant project, the Court of Appeal, First District, in a published opinion (N. Coast Rivers Alliance v. Marin Mun. Water Dist. Bd. of Dirs. (2013) 2013 Cal.App.LEXIS 401), reversed the trial court’s judgment and upheld the adequacy of EIR. At trial, the court determined the EIR violated CEQA in approximately a dozen ways.  Specifically, the trial court concluded the EIR included an inadequate analysis of (1) aesthetic impacts, (2) land use and planning impacts, (3) seismology impacts, (4) water quality impacts caused by shock chlorination, (5) biological impacts caused by entrainment, (6) energy impacts, and (7) greenhouse gas (GHG) emission impacts.  The trial court also concluded that the EIR proposed inadequate mitigation measures for (1) aesthetics, (2) aquatic noise and vibration, and (3) GHG emissions.  Finally, the trial court held that (1) with respect to biological resources the discussion of the existing environmental setting was insufficient, and (2) CEQA required the EIR to be recirculated because a new alternative was included in the Final EIR.  The First District reversed each of the trial court’s holdings.

With respect to aesthetic impacts, the First District stated that “[w]here an EIR contains factual evidence supporting the conclusion that aesthetic impacts will be insignificant, that conclusion must be upheld.”  Because the EIR included such facts and the Petitioners merely disagreed with them, the First District reversed the trial court. The First District also rejected the trial court’s ruling that adopting a landscaping plan as mitigation to soften visual impacts of a structure was inadequate absent a commitment to shield a specific percentage (i.e. 25%, 50%, etc.) of the structure from view.   The First District stated “‘where a public agency has evaluated the potential significant impacts of a project and has identified measures that will mitigate those impacts,’ and has committed to mitigating those impacts, the agency may defer precisely how mitigation will be achieved under the identified measures pending further study.” (Original emphasis.)

Next, the First District reversed the trial court’s holding regarding the adequacy of the land use and planning analysis.  The EIR concluded that, with the exception of one issue that was identified and analyzed in the EIR, the project was consistent with applicable local plans.  The trial court concluded a more detailed discussion of how the project would impact various county general plan policies was required.  The First District first noted that “[d]etermining whether a project is consistent with general plan policies is left to the lead agency; ‘[i]t is emphatically, not the role of the courts to micromanage’ such decisions.” (Original emphasis.)  Next, the First District explained CEQA only requires an EIR to discuss inconsistencies between a project and applicable plans, not all the ways in which a project is consistent with such plans.  “The trial court’s ruling is tantamount to requiring the EIR to provide a detailed discussion of the Project’s consistency with the plan.  CEQA includes no such requirement.”

Turning to the adequacy of the seismology analysis, the First District noted that only generic concerns regarding earthquakes were expressed during the administrative process.  The EIR’s analysis of potential seismology related impacts more than adequately responded to those comments.

The Fist District next rejected the trial court’s conclusion that the EIR’s discussion of potential water quality impacts caused by process used to clean the pipeline (known as shock-chlorination) was inadequate.  The First District began its analysis by stating that “[u]nder the substantial evidence standard, the ‘question is whether [MMWD] reasonably and in good faith discussed [shock-chlorination] in detail sufficient for the public to discern from the []EIR the ‘analytical route … agency traveled from evidence to action.’’” The First District concluded the EIR did.  The First District also rejected the Petitioners argument that it was improper for MMWD to rely on evidence outside of the EIR to support the less than significant impact conclusion reached by the EIR; “when an EIR contains a brief statement of reasons for concluding an impact is less than significant, then the petitioner has the burden of demonstrating ‘the conclusion was not supported by substantial evidence in the administrative record.’” (Original emphasis.)

At trial, the court was particularly critical of the EIR’s conclusions that biological resources impacts caused by entrainment were less than significant. The First District once again disagreed.  The EIR discussed a variety of field sampling techniques employed to evaluate potential entrainment impacts.  The First District stated that “[f]ield sampling is often the sole evidence relied on by lead agencies in evaluating a project’s biological impacts.”  Therefore, “[u]nder the substantial evidence standard of review, the District’s initial sampling effort was more than adequate.”  Nevertheless, MMWD even went further and conducted a year-long pilot-scale desalination program.  NOAA Fisheries and CDFG expressed concerns with one aspect of data collected during the year-long pilot program.  Petitioners argued that MMWD’s decision not to follow the recommendations made by NOAA Fisheries and CDFG rendered the analysis inadequate.  The trial court agreed; however, the First District explained that “[t]his ruling ignores the substantial evidence standard of review.”  Based on the substantial evidence standard, “[t]he issue is not whether other methods might have been used, but whether the agency relied on evidence that a ‘reasonable mind might accept as sufficient to support the conclusion reached’ in the EIR.” MMWD did.  Therefore, notwithstanding the disagreement with NOAA Fisheries and CDFG, the analysis was adequate for the purposes of CEQA.  Additionally, in part because the environmental setting relied on the same biological resource data that the First District found sufficient, it held  “the EIR’s description of the environmental setting was more than adequate.”

The First District also concluded the mitigation measure proposed to address the project’s potentially significant aquatic noise and vibration impact was adequate.  The trial court found that the measure was not sufficiently specific.  The First District disagreed.  The Court explained that “the commitment to undertake consultation with NOAA Fisheries does not impermissibly defer to the future the identification measures.  Consultation with NOAA Fisheries must occur, both as part of the federal permitting process under the CWA and ESA, and under the express terms of the mitigation measure.  Such mitigation is adequate under CEQA.” (Original emphasis.)

Next, the First District rejected the trial court’s conclusion that the EIR should have included a green energy alternative.  The Court explained that “alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the project.” (Original emphasis.)  The EIR concluded the project’s energy impacts were less than significant and the trial court held that conclusion was supported by substantial evidence. Therefore, “the EIR did not need to discuss further green energy credits as an alternative mitigation measure for the energy impacts of the Project.”

With respect to the GHG analysis, the First District reversed the trial court. Based on Assembly Bill No. 32 and MMWD’s own more aggressive goal to reduce GHG emissions, the threshold used in the EIR was whether the project would interfere with Marin County’s goal of reducing GHG emissions to 15 percent below 1990 levels by 2020.  The EIR concluded the project would not interfere with achieving that goal and, as a result, the project’s cumulative contribution was less than significant.  Additionally, in approving the project, the MMWD Board adopted a policy requiring all project-related GHG emissions be offset and the evidence demonstrated this policy commitment was feasible.  The Court also concluded the analysis and policy commitment were supported by substantial evidence.  Therefore, Petitioners’ challenge constituted nothing more than a disagreement with the conclusion reached in the EIR.  Such disagreement does not render an EIR inadequate.

Finally, Petitioners argued and the trial court agreed that the inclusion of a new alternative in the Final EIR required the EIR to be recirculated before certification.  The First District again disagreed.  The Court noted that “recirculation is ‘an exception rather than the general rule.’”  Therefore, “[a]n agency’s decision not to recirculate the draft EIR is entitled to substantial deference.”  The Court found that substantial evidence demonstrated that the new alternative was neither considerably different from other alternatives included in the Draft EIR nor feasible.  The alternative also failed to meet one of the project’s basic objectives.  As substantial evidence supported the finding that the alternative was not feasible, the First District concluded its inclusion in the Final EIR did not trigger recirculation.

The First District, therefore, reversed the trial court’s judgment against MMWD in its entirety.

Key Point:

Due to the substantial number of issues raised in this appeal, this decision is extremely helpful for lead agencies and project proponents. The decision helps to clarify the meaning and application of the substantial evidence standard of review in CEQA litigation. The decision also demonstrates that disagreements between a lead agency and other responsible and/or trustee agencies do not render an EIR inadequate. The decision further emphasizes that an EIR’s analysis of less than significant impacts need only be brief and a conclusion of less than significant may properly be supported by evidence outside the EIR and contained elsewhere in the administrative record. Finally, the decision supports the conclusion that 15% below 1990 GHG emissions by 2020 is an adequate significance threshold for analyzing GHG impacts.

Written By: Tina Thomas and Christopher Butcher

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

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

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

Wednesday, November 7th, 2012

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

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

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

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

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

Key Point:

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

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

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

Clover Valley Foundation v. City of Rocklin (2011) 197 Cal.App.4th 200

Tuesday, May 22nd, 2012

The City of Rocklin (City) certified an EIR for a developer to build a 622-acre residential project. Petitioners sued, claiming the EIR was insufficient. The trial court found for the City. The Third District Court of Appeal affirmed the lower court’s decision, upholding the City’s approval of the project and the EIR. In challenging the certified EIR, the Petitioner presented several arguments, all of which the Court of Appeal rejected. First, the Court held that the City adequately described the conditions and the Native American cultural resources on the project site, sufficiently balancing the disclosure required by CEQA, and the federal and state law requirements prohibiting full disclosure. Second, the Court explained that recirculation of the revised EIR was not required. Recirculation is required only if there is new information added. In this case, the Court explained that the new information only adds a narrative detail; it does not change any of the EIR’s conclusions or analysis. Third, the Court held that an EIR is only required to provide a general description of a project’s growth-inducing effects. Fourth, the Court found that substantial evidence supported the EIR’s analysis and mitigation measures adopted for impacts to oak trees, aesthetics, California black rail, traffic, and water supply. Lastly, on a non-CEQA claim, the Court held that a project does not need to be in line with every policy in a City’s general plan. Thus, the Court upheld the trial court’s decision and denied the appeal.

Key Point:

CEQA does not require a lead agency to disclose confidential information regarding the location and nature of sites containing cultural resources. In consideration of state policy to protect sensitive cultural resource information, a lead agency is required only to provide a good faith discussion of these issues in an EIR.

Silverado Modjeska Recreation and Parks Dist. v. County of Orange (2011) 197 Cal.App.4th 282

Tuesday, May 22nd, 2012

Upon receiving a writ of mandate from the trial court in 2003, Orange County (County) prepared a supplemental EIR (SEIR) for its Silverado Ranch Canyon Project (Project). Petitioner challenged the County’s approval of the project claiming that the SEIR did not comply with the writ issued in 2003, and that the discovery of new information about the arroyo toad required recirculation of the SEIR under CEQA. The trial court found in favor of the County. On appeal in a plurality opinion the Fourth District Court of Appeal upheld the trial court’s decision. First, the Court explained that the Petitioner should have challenged the trial court’s ruling discharging the writ rather than filing a new lawsuit. Because Petitioner did not challenge the trial court’s ruling the Appellate Court held that the Petitioner’s claim was barred by res judicata. The Court explained that res judicata bars re-litigation of causes of action that were previously decided between the same parties. Next, the Court addressed whether the SEIR should have been recirculated due to the possible presence of the arroyo toad. Citing to Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 112, the Court explained that recirculation of an EIR is required only if new information is added that involves either a new substantial environmental impact from the project, a substantial increase in severity of an environmental impact from the project, or new proposed mitigation measure. In this case, the Court found that the new information added to the SEIR did not fall into any of those three categories. The issues added were already discussed in the original EIR, therefore recirculation is not required. Lastly, the Court addressed whether an agreement between the parties in 2003 established that the Petitioner must pay the developers’ attorneys’ fees and costs in this litigation. The Court concluded fees were not owed because the developer did not comply with the notification and cure requirements relating to a breach of the agreement prior to seeking fees.

Key Point:

Petitioners commonly challenge revised EIRs prepared by lead agencies to comply with writs issued in CEQA litigation. The scope of review in, and the applicability of res judicata principles to, such challenges is commonly debated. This decision is important for any agency faced with such a challenge.