On November 30, 2015, the Supreme Court issued its decision in Center for Biological Diversity v. California Department of Fish and Wildlife, 2015 Cal. LEXIS 1043, addressing Newhall Ranch, a proposed 12,000 acre development project. The Newhall Ranch Specific Plan area, located in northwestern Los Angeles County in a portion of the Santa Clara River Valley, was first analyzed and approved by Los Angeles County in 2003. In 2010, the California Department of Fish and Wildlife (CDFW) certified an environmental impact report/environmental impact statement (EIR/EIS), approved a resource management plan, adopted a conservation plan and a streambed alteration agreement, and issued incidental take permits necessary to implement the Specific Plan previously approved by the County. CDFW’s approvals were subsequently challenged under CEQA by a coalition of conservation groups.
While the Los Angeles County Superior Court granted plaintiffs’ petition for writ of mandate on several grounds, the Second District Court of Appeal reversed on all issues and directed the trial court to enter judgment in favor of CDFW. On review, the Supreme Court considered three issues and addressed, for the first time, what lead agencies must do to sufficiently analyze greenhouse gas emissions in an EIR.
Justice Werdegar filed the opinion for the five-justice majority, with Justice Corrigan writing a separate opinion concurring and dissenting and Justice Chin writing a lengthy dissent. This decision will have far reaching implications for future EIRs, but unfortunately, the majority opinion provides little clarity on how lead agencies will be able to survive legal challenges to greenhouse gas analyses.
The majority began its analysis by stating that the appropriate threshold for the EIR’s greenhouse gas emissions analysis was a question of law that the Court should review de novo because it pertains to “correct CEQA procedure.” This holding is in conflict with previous case law stating that a lead agency’s selection of a threshold is deferentially reviewed under the substantial evidence standard.
After conducting a de novo review, all of the justices agreed that lead agencies can use consistency with AB 32 as a threshold for determining the significance of greenhouse gas emissions under CEQA. The California Air Resources Board’s 2008 Scoping Plan implements AB 32 and sets forth a plan to reduce greenhouse gas emissions in California to 1990 levels by cutting business-as-usual emission levels projected for 2020 by 29 percent. Plaintiffs argued that “business as usual” was an impermissible hypothetical future scenario under the Court’s prior ruling in Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310. The justices disagreed, holding that comparison to a “no development” scenario would be unrealistic as CEQA is not a population control measure and development would simply occur elsewhere if the project is not permitted.
But, as stated by Justice Corrigan in the dissent, the Court’s approval of this approach is “illusory” given the lack of deference provided to CDFW by the majority. The EIR/EIS analysis found that the project would result in a 31 percent reduction below business as usual estimates and that because this reduction exceeded the reductions needed to achieve the AB 32 goal, the greenhouse gas impact would be less than significant. Rather than deferring to the agency, the majority determined the analysis was inadequate because the EIR did not demonstrate “a quantitative equivalence between the Scoping Plan’s statewide comparison and the EIR’s own project-level comparison.”
The feasibility of providing evidence of this “quantitative equivalence” was questioned by both Justice Corrigan and Justice Chin, who would have found that CDFW did not abuse its discretion. According to the majority, in order to use compliance with the Scoping Plan as a threshold, the lead agency must “review the data behind the Scoping Plan’s business-as-usual model” and then “determine what level of reduction from business as usual a new land use development at the proposed location must contribute in order to comply with statewide goals.” Justice Corrigan opined that this technique would be of limited practical use. An additional consideration, noted by Justice Chin in the dissent, is that the majority “strongly hints” that the 2020 goal contained in the Scoping Plan will soon be insufficient and projects will need to meet a different goal established for a date beyond 2020. Thus, the usefulness of the Scoping Plan as a threshold is extremely limited with an upcoming (but unknown) expiration date.
The majority also took issue with the EIR’s use of the housing densities in the Santa Clarita Valley when determining the “business as usual” figure because those densities may not have been contemplated by the Scoping Plan. Justice Corrigan and Justice Chin agreed that this critique was “both hyper technical and insufficiently deferential.” Given the lack of agreement among experts about the level of greenhouse gas reduction needed at the project level, Justice Corrigan and Justice Chin would have resolved any reasonable doubts in favor of the agency’s decision.
The majority then offered two other approaches for conducting a greenhouse gas analysis, though it noted that it did not “guarantee that any of these approaches will be found to meet CEQA’s demands.” First, the lead agency can show consistency with the AB 32’s statewide goal by demonstrating compliance with regulatory programs designed to reduce greenhouse gas emissions for particular activities. Because the Scoping Plan does not propose statewide regulation of land use planning, the majority stated that local governments bear the primary burden of evaluating a land use project’s impact on greenhouse gas emissions. This can be achieved by referencing climate action plans or emission reduction plans that are developed at the local level, if the agency is fortunate enough to be considering a project in an area that has these plans in place. Second, a lead agency may rely on existing numerical thresholds of significance, like those created by the Bay Area Air Quality Management District (BAAQMD). However, since the BAAQMD thresholds were created specifically for the Bay Area, they will be of little use to projects that are being developed in other regions.
Next, the majority addressed the EIR/EIS’s mitigation measures that would allow U.S. Fish and Wildlife Service personnel to rescue stranded stickleback, a fully protected species under Fish and Game Code section 5515, subdivision (b)(9) and an endangered species under the California Endangered Species Act. The majority held that the measures authorized a taking prohibited under subdivision (a) of section 5515. In particular, the majority focused on the provision of subdivision (a) that allows fully protected fish to be possessed for “scientific research,” the definition of which does not include actions taken as part of specified mitigation for a project. The majority viewed this provision as a stricter requirement for fully protected species that supersedes Fish and Game Code section 2061, which allows the trapping and transplantation for endangered species to move them out of harm’s way. Based on the legislative history and statutory language, the majority did find that Fish and Game Code section 5515, subdivision (a) allows the trapping and transportation of fully protected fish species as part of a species recovery program, as long as these actions are not specified as project mitigation measures. Justice Chin dissented and would have held that trapping and transplantation to protect a species is distinct from the permanent catch and capture of a “take.”
Finally, the majority held that under the circumstances of this case plaintiffs exhausted their administrative remedies regarding certain claims by raising them during a comment period on the final EIS initiated by the US Army Corps of Engineers under NEPA. The majority classified this as CDFW creating an “optional comment period” on the final EIR under CEQA. The majority noted, however, that this was not a larger holding about EIR/EISs but pertained to the circumstances here, in which CDFW participated in the post-final EIS/EIR process, included responses to the late comments, and made responsive changes to the final EIR it certified.
Both Justice Chin and Justice Corrigan expressed concern about the delay caused by the majority’s opinion, noting that the litigation had already delayed the project by 5 years with further delay to come. Justice Corrigan wondered whether CEQA was becoming “a moving target, impossible to satisfy” while Justice Chin noted that “California’s environmental laws are not intended to prevent development that is needed to accommodate the state’s growing population.” Because of the majority’s decision, the 58,000 people who will eventually be housed by the Newhall Ranch project will continue to wait for a project that has been thoroughly reviewed and fully-permitted for 5 years.
A lead agency that uses a greenhouse gas emissions threshold that relies on the AB 32 Scoping Plan must include evidence in the record that similar projects with similar impacts were contemplated by the Scoping Plan. If that is not possible, which will be likely for many projects, the lead agency should use one of the other two methods provided by the Supreme Court for analyzing greenhouse gas emissions: demonstrating compliance with regulatory programs designed to reduce emissions or using a quantitative threshold. However, the Court noted that these methods were not guaranteed to be acceptable. Additionally, a mitigation plan for a project cannot include measures that call for the relocation of fully protected species.