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Supplemental Environmental Impact Report Posts


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

Tuesday, July 7th, 2015

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

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

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

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

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

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

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

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

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

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

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

Key Point

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

Fourth Appellate District Publishes Opinion Requiring Supplemental EIR for San Diego County’s Climate Action Plan

Monday, January 12th, 2015

On November 24, 2014, the Court of Appeal for the Fourth District granted a request to publish the recent case Sierra Club v. County of San Diego, 2014 Cal. App. LEXIS 1077. In the decision, the appellate court affirmed the trial court and granted a writ of mandate requiring a supplemental environmental impact report (EIR) for San Diego County’s Climate Action Plan (CAP).

The publication of the opinion comes on the heels another key California environmental law case in Cleveland National Forest Foundation v. San Diego Association of Governments, 2014 Cal. App. LEXIS 1070. In both cases, the Fourth Appellate District examined the application of Governor Schwarzenegger’s 2005 Executive Order No. S-3-05 and the Legislature’s subsequent climate change mandates in AB 32 and SB 375. The executive order required statewide reduction of greenhouse gas emissions to 2000 levels by 2010, to 1990 levels by 2020, and to 80 percent below 1990 by 2050.

In the newly-published Sierra Club opinion, the court emphasized the specific evidentiary support required by lead agencies in complying with the mandates of the 2005 executive order and subsequent legislation. The executive order “requires consistent emissions reductions each year from 2010 through 2020 and then a greater quantity of emissions reductions each year from 2020 through 2050.” Lead agencies such as the County cannot rely on compliance with other state and federal statutes and planned but unfunded programs to meet the greenhouse gas emission reduction requirements. A “good faith, reasoned analysis” under CEQA requires more than citations to entire appendices in the County’s CAP; it requires specific evidence that people will participate in the various programs to the extent necessary to achieve the emissions reductions.

A complete summary of the case is available here: http://www.thomaslaw.com/blog/appellate-court-requires-supplemental-eir-san-diego-countys-climate-action-plan/.

Court Orders Supplemental EIR for Ventura County Medical Center Building Due to 15 Foot Increase in Building Height

Monday, January 12th, 2015

In Ventura Foothill Neighbors v. County of Ventura (2014) 232 Cal.App.4th 429, the Court of Appeal for the Second Appellate District affirmed the trial court’s decision requiring Ventura County (the County) to prepare a supplemental environmental impact report (EIR) to evaluate the impacts associated with increasing the height of a medical office building previously approved to be developed within the Ventura County Medical Center from 75 feet to 90 feet.

The County originally approved an EIR in 1993 stating the building would have a maximum height of 75 feet. In 2005, the County prepared an addendum to the 1993 EIR to evaluate potential impacts of relocating the building a few hundred feet northwest from the original location. The addendum only addressed relocation of the building and did not disclose that the building height would increase by twenty percent.   The County filed a Notice of Determination (NOD) after approving both the original 1993 EIR and the 2005 addendum. In May of 2008, a community group known as Ventura Foothill Neighbors, learned about the change in height when a citizen noticed equipment at the construction site and inquired what was being built. Approximately two months after discovering the change, Ventura Foothill Neighbors filed a petition for writ of mandate and sought a preliminary injunction to stop construction of the building.  The trial court declined to enjoin construction and the County completed the building in 2010.

The key question before the court was whether the statute of limitations expired before Ventura Foothill Neighbors filed its lawsuit.  The County argued that the lawsuit should be viewed as a challenge to the 1993 EIR or at least the 2005 addendum and, therefore, the lawsuit was filed well after the 30 day statute of limitation ran under either of the NODs.  The court disagreed. The court reasoned filing of the NOD triggers a 30-day window for all CEQA challenges “to the decision announced in the notice.” In this case, neither the 1993 EIR nor the 2005 addendum mentioned the change in height of building. As a result, respondent had 180 days from when it “knew or reasonably should have known the project differed substantially from the one described in the EIR.”  As Ventura Foothill Neighbors discovered the change in May of 2008 and filed its lawsuit in July of 2008, the lawsuit was timely.

The court also held the change in height from 75 feet to 90 feet constituted a substantial change in the project requiring a major revision in the EIR.  Therefore, the court concluded that the County should have prepared a supplemental EIR to analyze the impacts associated with the change in height.

KEY POINT

An NOD filed creates a short statute of limitations to challenge actions of the lead agency pursuant to CEQA.  However, an NOD only covers the project as defined in the NOD and associated environmental document (e.g. EIR, addendum, etc.).  To avoid uncertainty and reduce the potential for future litigation, a lead agency should make sure to clearly define the project in an NOD and associated environmental document.

Appellate Court Requires Supplemental EIR for San Diego County’s Climate Action Plan

Monday, November 17th, 2014

In an unpublished decision in Sierra Club v. County of San Diego, 2014 Cal. App. Unpub. LEXIS 7762, the California Court of Appeal for the Fourth District granted a writ of mandate to enforce a mitigation measure in San Diego County’s (County) 2011 general plan update to reduce greenhouse gas (GHG) emissions in the County.

In response to the mandate in AB 32 that the state reduce its GHG emissions to 1990 levels by 2020, the County adopted a series of climate change-related mitigation measures.  One such mitigation measure was CC-1.2, which required the County to prepare a climate action plan (CAP) that included more detailed GHG emissions targets and deadlines to reduce the County’s GHG emissions in accordance with AB 32.

Sierra Club contended the CAP adopted by the County violated the California Environmental Quality Act (CEQA) by failing to include adequate analysis of the environmental impacts and failing to comply with the requirements of Mitigation Measure CC 1.2. Sierra Club also challenged the County’s related guidelines that permitted projects that fall below a bright line threshold (hereafter “Thresholds Project”) to avoid detailed GHG analysis in future project-level environmental documents. The court found that the County failed to comply with CC-1.2 for three reasons. First, the CAP did not include enforceable GHG emissions as required by CC 1.2. Instead, the County described the emissions reductions strategies as “recommendations.” Second, the CAP did not contain “more detailed deadlines” as required by CC 1.2 and instead included only the final 2020 goal without incremental emissions objectives. The County also failed to cite any specific evidence in the record that people would participate in the programs to achieve the target reductions.

The court also found the County failed to make adequate finding regarding the environmental impact of the CAP and Thresholds project. The County improperly assumed the CAP and Thresholds project was part of the general plan update so the County did not analyze the environmental impacts of the CAP and Thresholds project itself. Because the general plan update’s plan-level EIR did not analyze the CAP and Thresholds project, the court required the County to complete a separate EIR.

The court next concluded the County violated CEQA section 21081.6 by failing to incorporate mitigation measures directly into the CAP. Section 21081.6 requires public agencies to include enforceable mitigation measures directly into the adopted plans.  

Finally, the court held there was no substantial evidence to support the County’s conclusion that a supplemental EIR was not required. The details of the CAP were not available during the completion of the Program EIR for the general plan update. As a result, key elements such as baseline GHG emission levels and monitoring programs were not considered in the Program EIR. Accordingly, the court affirmed the trial court’s decision that a supplemental EIR was required to ascertain the environmental impacts of the CAP and Thresholds project.


 

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

Monday, July 21st, 2014

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

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

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

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

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

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

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

KEY POINT

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

Court of Appeal Views Appellants’ Failure to Present and Discredit Evidence favorable to the Agency as a Concession that Substantial Evidence Does In Fact Support Agency

Tuesday, July 17th, 2012

In an unpublished decision, El Pueblo Para El Aire Y Agua Limpio v. Kings County Board of Supervisors, 2012 Cal. App. Unpub. LEXIS 4984, Greenaction for Health and Environmental Justice and El Pueblo Para El Aire y Agua Limpio (collectively appellants) sued the Kings County Board of Supervisors (County) alleging that the County’s approval of a project to expand an existing hazardous waste disposal facility violated the California Environmental Quality Act (CEQA). Appellants also presented civil rights causes of action under Government Code sections 11135, 12955, and 65008. The Fifth Appellate District Court of Appeal agreed with the trial court, finding that the CEQA claim was properly rejected and upholding demurrers to the civil rights causes of action.

The court first concluded that appellants’ claims of CEQA noncompliance were not persuasive. Appellants attacked the County’s final subsequent environmental impact report (FSEIR) in three respects: (1) the health-related impacts were not sufficiently analyzed; (2) the daily truck traffic baseline used was inflated; and (3) the cumulative impacts analysis did not include all the relevant information and was thus underestimated. Pertaining to the first claim, appellants alleged that the County did not have sufficient information to judge the project’s true impacts on public health, the County should have conducted an additional health survey, and the County had an obligation to reexamine the project’s impacts due to new information brought to light by the Greenaction health study.

The court first explained that appellants had waived their claims by failing to adhere to the well-established principle that when an appellant is challenging an EIR for insufficient evidence, the appellant must lay out the evidence favorable to the other side and then show why it is lacking. Appellants’ failure to present all the evidence was viewed by the court as a “concession” that there was, in fact, substantial evidence to support the County’s findings.

The court next held that the County properly refused to conduct an additional health test as requested by appellants. “CEQA does not require a lead agency to conduct every test … recommended or demanded by commentors” (El Pueblo Para El Aire Y Agua Limpio v. Kings County Board of Supervisors, 2012 Cal. App. Unpub. LEXIS 4984 at 47). Since the court found that the FSEIR reflected an adequate, good faith effort to ascertain the project’s potential impacts on public health, the court concluded that the County did not need to conduct an additional test. The court further explained that the county’s response to the requests for an additional test adequately explained why the County had refused to conduct another test, supporting the County’s decision with substantial evidence.

Lastly, the court explained that the County did not need to recirculate its EIR. Appellants’ argument rested on their belief that the Greenaction health survey presented new information, thus changing the environmental setting of the project from the one analyzed in the FSEIR. However, using the CEQA definition of “environmental setting,” which is “the surrounding physical conditions such as topography, air quality, plant life and water resources,” the court concluded that since the information from the survey was about birth defects, there was no change in the project’s environmental setting. (Id. at 61-62). There was no new information presented, therefore the County’s decision not to recirculate the DSEIR was supported by substantial evidence as well.

Appellants’ second and third claims that the truck traffic baseline and the cumulative impacts analyses were inadequate under CEQA were both rejected by the court under the exhaustion doctrine. By failing to raise the two claims either during the administrative proceedings or in the appeal letter, the court explained that these claims were forfeited due to appellants’ failure to exhaust all the available administrative remedies before bringing the suit to court.

The court also addressed non-CEQA, civil rights causes of action under Government Code sections 11135, 12955, and 65008. All three of these causes of action were rejected. The court explained that the appellants were trying to use the statutes in situations that were beyond their scope as defined by each statute itself along with interpretations used by other courts in previous cases. Therefore, the trial court’s holding and the County’s approval of the expansion of the hazardous waste site were reaffirmed.

Written By: Tina Thomas, Ashle Crocker and Grant Taylor (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.

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.

Substantial Evidence Test Applies to Subsequent Environmental Review After a Negative Declaration Has Been Adopted for a Project

Tuesday, May 22nd, 2012

In Abatti v. Imperial Irrigation District (2012) 2012 Cal.App. LEXIS 496, the court considered whether the substantial evidence, rather than the “fair argument,” test applies to determine whether further environmental review is warranted for a subsequent approval where the agency has initially adopted a negative declaration for the project.

In 2006, the irrigation district adopted an “Equitable Distribution Plan” to address the allocation of water in times of shortage, and concurrently approved a negative declaration, which concluded that the plan would not have a significant effect on the environment. The irrigation district then adopted implementing regulations in 2007, and adopted additional regulations in 2008, along with an environmental compliance report, which relied on CEQA Guidelines section 15162 to find that the 2006 negative declaration adequately addressed impacts, and no further CEQA review was required. A group of property owners challenged the 2008 regulations, arguing that an EIR should have been prepared because the regulations substantially changed the way water would be allocated. They asserted that the regulations specifically gave higher priority to geothermal users as opposed to agricultural users.

The court first considered whether it had jurisdiction in light of the fact that appellants had dismissed several non-CEQA claims without prejudice prior to the trial court’s decision on the CEQA claim. The court concluded in the affirmative, finding that a party may appeal from a judgment rendered on a particular claim on a case, regardless of whether certain other claims have been dismissed without prejudice, provided no claims remain pending between the parties.

On the merits, the court first rejected the petitioners’ argument that CEQA Guidelines section 15162 was an invalid regulation. Section 15162 provides that, after an agency has certified an EIR or negative declaration, no subsequent EIR is required unless certain circumstances occur. This section of the Guidelines implements Public Resources Code section 21166, which refers to EIRs, but not negative declarations. The appellate court rejected the petitioners’ challenge, relying on Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, which upheld application of the standards for determining when a subsequent EIR is required for a project that has previously been reviewed when the original CEQA document was a negative declaration.

The appellate court proceeded to apply the substantial evidence test to assess the irrigation district’s determination that the 2008 regulations did not represent a substantial change in the project requiring additional CEQA review. The court found that substantial evidence supported the irrigation district’s determination. A comparison of the 2008 regulations with the pre-existing regulations showed that they were substantially similar and would not, in fact, change the priority preferences in case of water shortage, as petitioners had claimed.

Key Point:

This case affirms an agency’s ability to rely on a negative declaration for subsequent actions related to the project where substantial evidence supports the agency determination that the subsequent action has no new environmental impacts. Of particular note, the court rejected the petitioners’ attempt to characterize Benton as an “outlier” case. Instead the court upheld Benton, noting that numerous courts have agreed with that court’s conclusion that Guidelines section 15162 applies in determining whether further environmental review is warranted where the agency has initially adopted a negative declaration.

Written By: Tina Thomas and Amy Higuera
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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.