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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

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 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.

Citizens for Responsible Equitable Environmental Developments v. City of Chula Vista (2011) 197 Cal.App.4th 327

Tuesday, May 22nd, 2012

The City of Chula Vista (City) approved a proposed Target retail store in reliance on a mitigated negative declaration (MND). Petitioner filed a petition for writ of mandate challenging the MND and claiming that the project may have significant impacts relating to hazardous materials, air pollution, particulate matter and ozone, and greenhouse gas emissions. The trial court denied the writ. The Petitioners appealed to the Fourth District Court of Appeal, which reversed the lower court’s decision on hazardous materials, but affirmed its decision on the other three points. Examining first the hazardous materials issue, the Court determined that evidence in the record established that the project was proposed on a former gas station site with contaminated soil, and that this contaminated soil may be disturbed during construction. While the MND established that measures in an adopted corrected action plan had to be implemented, the plan was not included in the record. Therefore, the Court held that the record contained a “fair argument” that the project may result in significant impacts related to hazardous materials. With respect to the project’s contribution to greenhouse gas emissions (“GHG”), the Court held that the project would not have a significant impact because the emissions from project construction would not exceed air quality thresholds set forth in AB 32. Lastly, the Court found that potential air quality impacts on sensitive receptors were adequately analyzed using a screening-level health risk assessment based on guidance issued by the South Coast Air Quality Management District.

Key Point:

Lead agencies have discretion to decide the appropriate threshold of significance to use. Reliance on a state standard, such as those set forth in AB 32 for GHG emissions, should be sufficient under CEQA.

Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884

Tuesday, May 22nd, 2012

Petitioner challenged the City of Oakland’s (City) EIR for a mixed-use project claiming it failed to provide meaningful analysis of seismic impacts under CEQA. The trial court issued a writ of mandate ordering the City to compose a new EIR. The City submitted a revised EIR which the trial court found adequate, discharging the writ of mandate. Petitioner appealed the trial court’s ruling discharging the writ based on the City’s alleged failure to adequately analyze and mitigate seismic impacts. The Court upheld the lower court’s decision to discharge the writ. First, the Court explained that the City was not required to create its own significance threshold but could as a policy decision use the one provided in Appendix G of the CEQA Guidelines. Second, the Court found that the two mitigation measures adopted in the revised EIR adequately mitigated seismic impacts to a less than significant level. The two measures were that the buildings must comply with all state and local regulations, and that the buildings must comply with final design parameters and recommendations that would be included in geotechnical investigations. Third, the Court ruled that the City did not improperly defer mitigation because substantial evidence in the record demonstrates that compliance with State and local code requirements was feasible and would be effective.

Key Point:

Where substantial evidence in the record supports the ability of proposed mitigation measures to reduce potentially significant impacts to a less than significant level, a court will not substitute its judgment for that of the agency.