Thomas Law Blog

CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Subsequent CEQA Review Posts


Second District Prohibits Preparation of Subsequent EIR Where Project-level EIR Covered All “Reasonably Foreseeable Consequences” of Later Plan-level Project; Spot-Zoned Target Store Permissible Where in Public Interest

Thursday, August 23rd, 2018

In Citizens Coalition Los Angeles v. City of Los Angeles, (2018) 26 Cal. App. 5th 561, the Second District Court of Appeal held that the City of Los Angeles’s (City) reliance on an addendum to a prior project-level EIR prepared for a Target store was legally sufficient environmental review for the approval of a later ordinance amending a specific plan applicable to the area containing the Target store. The City’s reliance on the Target EIR and addendum was permissible where the new ordinance did not present “reasonably foreseeable consequences” beyond those presented in the Target EIR.

The City completed an EIR for a Target store and then later passed an ordinance that amended its neighborhood-based specific plan to create a new subzone for large commercial development, and placed the half-built Target store into that new subzone. In passing the ordinance, the City relied on an addendum to the Target store EIR. Citizens Coalition Los Angeles (Citizens) filed suit.

Citizens alleged that the City’s actions violated CEQA by failing to conduct subsequent environmental review when creating the new subzone. The trial court held that the City violated CEQA for treating the action as a follow-on to its prior, initial approval of the Target store. The City and Real Party in Interest, Target Corporation, timely appealed.

The Appellate Court outlined that, where an EIR has been prepared, Public Resource Code section 21166 provides a supplemental EIR may only be required where new information comes to light or there is a substantial change to the project plans or project circumstances that requires a “major revision” to the EIR. Relying on Friends of College of San Mateo Gardens v. San Mateo County Community College District, (2016) 1 Cal. 5th 937, the Court found that only where one of the exceptions of Public Resources Code section 21166 applies may a new EIR be required. If an EIR “retains any relevance in light of the proposed changes,” then an addendum is proper, not a subsequent EIR.

The Court, relying on CEQA Guidelines section 15162 for direction, asked “[did] the existing CEQA document encapsulate all of the environmentally significant impacts of the project?” Further environmental review was only required if the later action was not a “reasonably foreseeable consequence” of the original project-level EIR. The Court awarded “greater deference to a public agency’s determination … than they [would for] whether initial CEQA review is required.”

The Court clarified that a “reasonably foreseeable consequence” is where “that consequence is, as a practical matter, sufficiently certain to happen.” The Court then outlined five such situations: (1) where an agency has already committed itself to undertake the consequence; (2) where a project presupposes the occurrence of consequence – where a consequence is a necessary and essential component of the project itself; (3) where a consequence is already under environmental review; (4) where an agency subjectively intends or anticipates the consequence; and (5) where an agency creates an incentive that is all but certain to result in a consequence.

Here, the Court found that substantial evidence supported the City’s finding that the sole reasonably foreseeable consequence of the ordinance was the construction of the Target store. Evidence in the administrative record showed that the City had not committed to any other large-scale commercial development on parcels meeting the ordinance criteria.  As such, Public Resources Code section 21166 did not merit subsequent or supplemental EIR as all of the reasonably foreseeable consequences of the ordinance had been addressed in the prior EIR and addendum. The Court further clarified that it did not matter that, though unconventional, the plan-level project relied on a project-level EIR.

Having settled the adequacy of the City’s environmental review, the Court then determined that the ordinance did not constitute impermissible spot zoning because extensive evidence in the record showed that the location of the store was in the public interest. Relying on Foothill Communities Coalition v. County of Orange, (2014) 222 Cal.App.4th 1302, the Court defined an island or spot zoning as where a parcel of land is rezoned to give it fewer or greater rights than parcels around it. In reviewing such claims, the Court’s focus is on if the City’s discretionary action is in the public interest. Only where an island is arbitrary, irrational, or unreasonable will it be impermissible. Here, record evidence showed demonstrated numerous benefits of the store being part of a shopping complex near pedestrian walkways and public transportation. Thus, the City’s action was in the public interest.

The Appellate Court reversed the trial court holding. In a separate holding, the Appellate Court awarded attorneys fees to Citizens’ co-petitioners, La Mirada Neighborhood Association. Read more about that in our blog post “Private Attorney General Doctrine Attorney’s Fees Proper For Party Successful in Invalidating Specific Plan Variances

Note that this case was originally published by the Appellate Court and then depublished by the Supreme Court at the same time that the Supreme Court denied review.

Key Point:

Public Resources Code section 21166 prohibits an agency from preparing a subsequent EIR where a project-level EIR covered all “reasonably foreseeable consequences” of a later plan-level project.

A city’s action to spot zone is evaluated by the court for being in the public interest, with great deference given to the city’s determination.

Second Appellate District Upholds PG&E Lease Extension as Categorically Exempt from CEQA, Finds Unusual Circumstance Exception Inapplicable to Extension of Nuclear Power Plant Lease

Wednesday, June 13th, 2018

In World Business Academy v. California State Lands Commission (2018) 24 Cal.App.5th 476, the Second Appellate District determined that renewing a lease for an existing power plant constituted a categorically exempt “existing structure” project under CEQA and the record did not support an “unusual circumstances” exception to the exemption.

Diablo Canyon Power Plant is a nuclear power plant that has been in operation since 1985 but is set to close by 2025. Owned and operated by PG&E in San Luis Obispo County, the plant’s cooling system draws in seawater as well as incidental aquatic plants and animals from state-owned tidal and submerged lands then expels heated water back into the sea. The leases for the water intake and discharge systems were to expire in 2018 and 2019.

PG&E submitted a single lease renewal application to the California State Lands Commission (Commission) to replace the expiring leases (Project). A staff report confirmed the Project would not require additional environmental review under the existing facilities exemption (CEQA Guidelines, § 15301) unless it was found to be an unusual circumstance meriting exception (CEQA Guidelines, § 15300.2(c)). After weighing the potential seismic and environmental impacts, the Commission found that the Project would not have a new significant effect on the environment due to unusual circumstances, moved to support the staff report, and issued a notice of exemption for the lease renewal.

World Business Academy filed suit alleging that the Commission’s actions violated CEQA where the lease approval would irreparably injure and deplete the marine ecosystem surrounding the plant. The trial court held the lease replacement fell squarely within the existing facilities exemption to CEQA and the unusual circumstances exception did not apply. World Business Academy timely appealed.

The Appellate Court affirmed the Commission’s lease approval under the existing facilities exemption.

The Court determined the Project was exempt from CEQA review as an existing facility, per CEQA Guidelines section 15301. Appellants argued that unlike other existing utility structures, nuclear power plant projects cannot be categorically exempt from CEQA because of the significant environmental impacts they have by their de facto operation. Further, the legislative history of the exemption indicated the meaning of “provide electric power” implicated structures which disseminate power, not power generating facilities themselves. The Court disagreed. Under the plain meaning of the statute, “provide electric power” reasonably included a power plant.

The Court rejected a related argument that the Commission lacked the authority to consider nuclear power plants under the exemption due to their operational environmental impacts. The Court found that minor alterations to, continued operation of, and leasing pre-CEQA facilities resulting in negligible or no expansion of use are unlikely to cause a new, significant adverse change in environmental conditions. Further, the class of projects at issue in the existing facilities exemption are not only nuclear power plants—rather, the exemption is applied to existing facilities of all types. The Court concluded that the Commission’s evaluation of the lease extension, while brief, was sufficient to demonstrate that the lease extension would maintain the status quo at the existing facility and not expand its operations.

The Court then looked at the unusual circumstances exception to the exemption under CEQA Guidelines section 15300.2(c). The Court found that the Commission incorrectly applied the Berkeley Hillside two-pronged test (described above in Don’t Cell Our Parks) but this was not fatal to the Commission’s determination.

Turning to the substance of the unusual circumstance analysis, the Court found that the Project was not an unusual circumstance based on its size and location. The Commission acted properly by considering the existing baseline for the Project and World Business Academy failed to point to specific evidence supporting the claim that impacts to aquatic life would be significantly increased past the existing operational level of the plant or certain risks – seismic activity, terrorist threats, “embrittleing” and others—would now occur. World Business Academy’s claim that the plant constituted a significant environmental effect because it was the last one of its kind in the state was irrelevant. The Court dismissed this and dismissed World Business Academy’s ad hominem attack against PG&E which alleged criminal conduct outside of the established record.

Accordingly, the Court affirmed the judgement of the trial court.

Key Point:

The existing facilities exemption allows pre-CEQA power plants (regardless of power source) undergoing non-significant changes to avoid additional environmental review. The proper baseline to determine if a change is significant is not established by present-day or forecasted analysis, rather, by the environmental impact the facility had when it began operations.

FIRST APPELLATE DISTRICT FINDS WAREHOUSE STORE PROJECT EIR FAILED TO SUFFICIENTLY ANALYZE POTENTIAL ENERGY IMPACTS IN PARTIALLY PUBLISHED OPINION

Wednesday, June 22nd, 2016

On June 21, 2016, the First Appellate District partially published its opinion for Ukiah Citizens for Safety First v. City of Ukiah (Case No. A145581). The case involved a citizen group’s petition for writ of mandate challenging the certification of an environmental impact report (EIR) by the City of Ukiah (City) for the construction of a Costco Wholesale Corporation retail store and gas station (Project).

In the published portion of the opinion, the Court addressed alleged deficiencies in the Project EIR’s energy impacts analysis. Petitioners asserted that the EIR “fails to include adequate information regarding the project’s energy use and does not comply with appendix F of the CEQA Guidelines.” Specifically, Petitioners alleged that the EIR failed to calculate the energy use attributable to vehicle trips generated by the Project and failed to calculate the operational and construction energy use of the project.

In arriving to its decision, the court relied on the standards set forth by the Third Appellate District in California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173 (CCEC), a decision that was filed after the EIR was certified and the petition was filed. Consistent with CCEC, the court found that the EIR failed to calculate the energy impacts of trips generated by the Project. The court also found that the EIR improperly relied on compliance with the California Building Code to mitigate operational and construction energy impacts, without further discussion of the CEQA Guidelines Appendix F criteria. Finally, the court found that the City inappropriately relied on mitigation measures designed to reduce greenhouse gas emissions.

While this litigation was pending and recognizing the deficiencies in its EIR based on the principles set forth in the CCEC opinion, the City adopted an addendum to the EIR. The addendum clarified the EIR’s findings on energy impacts, but did not alter the conclusions reached in the EIR. While the trial court considered the addendum over Petitioners’ objections, the appellate court found this to be an inappropriate expansion of the administrative record. The court explained that the administrative record before a reviewing court should generally only consist of evidence that was before the decision-making body when it rendered its decision. Thus, the court did not address whether the language in the addendum cured the EIR’s defects. Moreover, the court found that the City’s subsequent addendum did not cure the prior approval of an inadequate EIR because the preparation of an addendum assumes that the EIR was properly certified. Because the EIR, as certified, inadequately addressed the energy impacts of the project, the court held that recirculation and consideration of public comments concerning the energy analysis will be necessary before the EIR can be recertified.

In the unpublished portion of the opinion, the court rejected Petitioners’ remaining contentions regarding: (1) the EIR’s analysis of transportation and traffic impacts; (3) the EIR’s analysis of noise impacts; and (3) the Project’s consistency with applicable zoning requirements. The court affirmed the trial court’s decision on the remaining contentions because there was sufficient evidence in the record to support the City’s conclusions.

Key Point: Addendums can only be used to clarify, amplify, or make insignificant modifications to an adequate EIR.

SECOND DISTRICT UPHOLDS CITY’S PERMITTING PROCESS FOR MALIBU HIGH SCHOOL PROJECT IN UNPUBLISHED DECISION

Friday, June 10th, 2016

In an unpublished opinion, Malibu Community Alliance v. City of Malibu, 2016 Cal. App. Unpub. LEXIS 3116, Division Seven of the Second Appellate District adjudicated a challenge to development permits granted by the City of Malibu (City) to the Santa Monica-Malibu Unified School District (District) for the installation of athletic field lights at Malibu High School. Petitioners sought a writ of mandate ordering the City to revoke the permits. The trial court denied the petition and the appellate court affirmed.

The District had previously used temporary lights for evening athletic events. Permanent field lighting was planned as part of a larger construction project on the Malibu high school and middle school campuses. After issuing the initial study, the school district learned that permanent lighting would be in violation of a condition of its coastal development permit obtained from the California Coastal Commission unless the District obtained an amendment to its campus’s coastal development permit and Malibu’s local coastal program. The District then decided to separate the field lighting project from the larger campus project and conduct an independent environmental review of each project. The District proceeded to draft an environmental impact report (EIR) for the larger construction project and a mitigated negative declaration (MND) for the field lighting project.

During the environmental review process for the EIR and the MND, multiple comments suggested that this division of the projects constituted illegal piecemealing under CEQA and that the cumulative impacts of both projects were not analyzed. In the Final EIR, the District responded to these comments and analyzed the cumulative impacts of the construction project and lighting project. The District certified the EIR, approved the construction project, and issued its notice of determination in February 2012; it adopted the MND, approved the lighting project, and issued its notice of determination in April 2012. These actions were not legally challenged.

Two months later, in June 2012, the City relied on the MND when it granted the conditional use permit to the District for the installation of the lights. It was this permitting process that Petitioners challenged, claiming that the City should have prepared a supplemental environmental review because there had been a “substantial change in circumstances” regarding the project. Specifically, Petitioners pointed to the fact that the applications for the lighting project and larger construction project were pending before the City at the same time. According to Petitioners, this caused the two separate projects to “bec[ome] one project.”

The court disagreed, holding that the timing of the applications did not constitute a substantial change that would trigger supplemental environmental review. Further, the court found that Petitioners were required to bring any claim of piecemealing within 30 days of the District filing its notice of determination and were thus precluded from collaterally attacking the environmental review under the guise of a challenge to the City’s later permitting process.

Addendum to Environmental Impact Report Sufficient to Outline Changes in Project’s Proposed Water Sources

Friday, June 12th, 2015

Pala Band of Mission Indians v. County of San Diego Department of Environmental Health (2015) Cal.App. Unpub. LEXIS 3815, California’s Fourth Appellate District affirmed the trial court’s judgment upholding the adequacy of an Addendum to an Environmental Impact Report (EIR) and granted defendants their costs on appeal.

The conflict in Pala Band began in 1994 when San Diego County voters passed Proposition C, approving the Gregory Canyon Landfill (GCL). San Diego County Department of Environmental Health (DEH) certified the Project’s Final Environmental Impact Report (FEIR), and later, a 2005 decision held that the FEIR approved by the DEH failed to consider water sources for the construction and operation of the Project, as well as the impact of obtaining water from off-site sources. The 2005 court set aside both the 2003 FIER certification and the Solid Waste Facility Permit (SWFP). In 2007, the DEH certified a Revised Final EIR (RFEIR).  After certification of the RFIER, GCL contracted with the San Gabriel Valley Water Company (SGVWC) to supply recycled water for the Project, and DEH prepared an addendum to the RFIER (2009 Addendum). The 2009 Addendum addressed primary on-site water sources from the riparian underflow of the San Luis Ray River and percolating groundwater from on-site watersheds, and SGVWC water as an alternative source.

Plaintiffs sued, arguing the 2009 Addendum was inadequate. After the lawsuit was filed, DEH approved a new SWFP for GCL, and sent the certification and SWFP to the California Department of Resources Recycling and Recovery (CalRecycle) for concurrence. When CalRecycle concurred, plaintiffs filed a second action claiming significant changes to the Project required a Supplemental Environmental Impact Report (SEIR). The trial court ruled for defendants and plaintiffs appealed.

Once the EIR is created, the necessary study is presumed done, and the burden shifts to the opposing party to argue why an SEIR is necessary. Plaintiffs contended any changes to the water sources of a project require the preparation of an SEIR. The court disagreed, stating that the plaintiffs’ interpretation was at odds with CEQA Guidelines § 15160 – that SEIR preparation is inappropriate unless the lead agency determines that “substantive changes” require “major revisions” to the prior EIR.  Because the plaintiffs failed to meet their burden of proof, the court rejected their argument that an SEIR was required.

The court next considered the sufficiency of the 2009 Addendum.  First, the court held that the 2009 Addendum correctly concluded that GCL had the right to use riparian water and percolating groundwater from existing wells for ancillary uses, landscape irrigation, and fire protection.  Second, the court found that substantial evidence showed that on-site wells were reliable sources of water as stated in the 2009 Addendum.  Third, contrary to plaintiffs’ argument, the court determined that SGVWC’s CPUC-approved tariff schedule authorized the sale of recycled water to GCL.  Fourth, the court rejected plaintiffs’ argument that the 2009 Addendum was inadequate for failing to analyze the environmental impacts of using third-party clay to build the landfill liner.  The court explained that the environmental effects of a project need not be exhaustive and its sufficiency must be reviewed in the light of what is reasonably feasible.  Finally, while the County Fire Department submitted comments on the 2009 Addendum expressing concern that the Project would have a potentially significant impact on their ability to deliver emergency fire suppression, the court held that the 2003 FEIR had an extensive discussion of fire safety impacts and, thus, the comments did not render the 2009 Addendum inadequate.