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Posts Tagged ‘Ashle Crocker’


Water Service Contracts in Central Valley Survive Endangered Species Act Challenges

Tuesday, August 7th, 2012

In Natural Resources Defense Council v. Salazar, (2012) 2012 U.S. App. Lexis 14614, the 9th District Court of Appeals affirmed a grant of summary judgment, concluding plaintiffs did not have standing to challenge the renewal of certain water service contracts under the Endangered Species Act and that renewal of other water service contracts was exempt from the Endangered Species Act.

In 2005, the United States Bureau of Reclamation (Bureau) renewed 41 water service contracts to provide water from the San Joaquin and Sacramento Rivers to users. Some of those contracts (settlement contracts) were initially entered in 1964 to settle the claims pertaining to the priority of water rights established before the Central Valley Project (CVP). The CVP is a project operated by the Bureau which began in the 1930’s to regulate the flow of water in the San Joaquin and Sacramento Rivers. The remaining contracts (DMC contracts) were initially entered with a coalition of users who obtained service from the Delta-Mendota Canal.

Plaintiffs, environmental organizations and the Metropolitan Water District of Southern California, filed a lawsuit challenging the renewal of the contracts on the basis such renewal violated section 7(a)(2) of the Endangered Species Act. Specifically, they claimed the Bureau had not met its requirements under section 7(a)(2), which requires federal agencies to insure that their actions are not likely to jeopardize the continued existence of any endangered species, to protect the Delta Smelt, a small fish added to the endangered species list in 1993. The trial court granted summary judgment to defendants on the grounds that plaintiffs did not have standing to challenge the renewal of the DMC contracts and renewal of the settlement contracts was exempted from section 7(a)(2).

Plaintiffs appealed, claiming they had standing and the renewal of the contracts was not exempt from the requirements of section 7(a)(2). First, the court rejected the defendants’ assertion that the case was mooted by the US Fish and Wildlife Service 2008 opinion. That opinion concluded the renewal of the contracts would not likely adversely affect the Delta Smelt and defendants argued it effectively eliminated any case or controversy. This assertion did not hold because a California District Court concluded the 2008 opinion was partially unlawful and because it was also unclear whether it considered the contracts at issue.

On the standing issue, the Court affirmed that the plaintiffs did not have standing to challenge the renewal of the DMC contracts. Standing did not exist here because the relevant contracts contained a shortage provision which expressly allowed the bureau to take any action to meet its legal obligations, including not delivering water to DMC contractors to satisfy section 7(a)(2) requirements. That provision prevented any causal connection from the renewal of the contracts to the threatened injury (i.e., jeopardy of the Delta Smelt) because the contracts expressly allowed for section 7(a)(2) compliance. That being the case, plaintiffs failed to meet the standing requirement of tracing injury to defendant’s conduct.

Last, the court affirmed that the renewal of the settlement contracts was exempt from section 7(a)(2). Section 7(a)(2) only applies to federal agency action where such actions are discretionary. Renewing the settlement contracts was not a discretionary action because the Bureau was required, pursuant to the Central Valley Project Improvement Act, to comply with all California Water Resources Control Board decisions, including the decision requiring the Bureau to address the issue of those claiming senior water rights under California law. The Bureau recognized such rights when it entered into the settlement contracts, the terms of which require renewal for the same quantity and allocation of water to be delivered to the contractors. Thus, “[t]he Bureau’s hands are tied historically by those asserting senior water rights in the CVP.”

Key Points:

An agency’s opinion cannot moot an issue when a court subsequently holds the opinion to be unlawful. A plaintiff cannot establish a link between renewing a contract and injury under the Endangered Species Act for standing purposes where the contract specifically provides for compliance with the Endangered Species Act. Renewal of water service contracts which grant water rights based on pre-CVP water rights seniority is exempt from section 7(a)(2) of the Endangered Species Act.

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.

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.

Newly Published Appellate Decision Holds Analysis of Parkland Impacts for Campus Master Plan Fails to Comply with CEQA

Thursday, July 5th, 2012

The City of Hayward v. Board of Trustees of the California State University, 2012 Cal. App. LEXIS 761, publication status was recently changed from unpublished to published on June 28, 2012. The Board of Trustees of the California State University (Trustees) approved a master plan to guide the expansion of the Hayward campus. The City of Hayward (City) sued claiming the Trustees’ environmental impact report (EIR) violated the California Environmental Quality Act (CEQA) by failing to analyze the impacts of the master plan on fire protection and public safety, traffic and parking, air quality, and parklands. The California First Appellate District Court found that Trustees’ EIR was adequate under CEQA in all respects except with regard to the analysis of impacts on surrounding parklands.

Trustees’ master plan requires an increase of fire services, either with the expansion or construction of a firehouse. The court held that the EIR adequately analyzed the impacts of the construction. Due to the small area required for a new firehouse along with its urban location, the court also held that the EIR appropriately concluded that the environmental impacts of expanded fire services would be less than significant. Therefore, the court explained, no mitigation measures were required. The court further concluded that it found no deficiency in the EIR’s analysis of cumulative impacts on public services.

The court next addressed the issues of traffic and parking. With the expansion of the college campus comes the need for more faculty. The Trustees’ master plan acknowledged the high cost of housing in California, and therefore explored potential locations to build affordable faculty housing. The EIR conducted an analysis and concluded that construction of faculty housing will not have a significant environmental impact as a result of increased traffic or parking. The court held this conclusion and analysis as sufficient under CEQA, explaining that since the Trustees prepared a program EIR as opposed to a project EIR, they properly evaluated cumulative impacts but deferred site-specific analysis of possible impacts on traffic until a later time. The court next examined the Trustees’ mitigation measures. With the main goal of shifting commuters out of single-occupant cars and into cleaner modes of transportation, the court found “no deficiency” in the way the EIR considered impacts of the master plan on parking and traffic, incorporated mitigation measures, and reached the conclusion that some environmental impacts are unavoidable. Lastly, the City claimed that the Trustees’ EIR failed to include a “mitigation measure … providing for the University to pay its fair share of traffic improvements.” City of Hayward, 2012 Cal. App. LEXIS 761 at 61. Since the City did not raise this issue in its opening brief, the court declined to address it because the argument had been waived.

Pertaining to impacts on air quality, the court supported the Trustees’ EIR. While the EIR concluded that the master plan would produce long-term emissions of pollutants, it presented transportation mitigation measures that would reduce some, though not all, emissions to a less than significant level. Since neither the trial court nor the City suggested other mitigation measures, the court held this portion of the Trustees’ EIR to be sufficient.

Analysis of the impacts on parklands was the one area the court found the EIR to be inadequate. Due to the proximity of two parks to the campus, the court explained that the EIR must do more than simply reference insignificant impacts on the East Bay Regional Park System. The Trustees’ EIR should rather analyze impacts on the two parks specifically. The court also held that the Trustees’ reliance on “long-standing use patterns” was done in error. Since the EIR made no attempt to determine the extent to which the current student body uses the parks or to extrapolate from that data as to what park usage might be in the future, there was no evidence to support Trustees’ assumption that the student use of the parks would remain nominal even after campus expansion.

Key Point:

The court found that the Trustees’ EIR inadequately analyzed the master plan’s impacts on parklands because, due to the proximity of the two parks, an analysis of impacts on the regional park system in general was too broad. The court also made clear that to support findings and analyses in an EIR, there needs to be concrete evidence; the Trustees should have attempted to ascertain the overall usage and capacity of the two nearby parks.

Written By: Tina Thomas, Chris 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.

Federal Court Upholds Application of Nationwide Permits for Hydropower Dam in Washington

Tuesday, July 3rd, 2012

In Snoqualmie Valley Preservation Alliance v. U.S. Army Corps of Engineers, (2012) ___ F.3d ___, the Ninth Circuit affirmed the Army Corps of Engineers’ (Corps) verification that certain nationwide permits (NWPs), which authorize activities predetermined to have minimal adverse environmental impacts, applied to the reconstruction of a dam used to generate hydroelectric power in Washington.

Puget Sound Energy, Inc. (PSE), intervener-defendant in the case, planned to rebuild a hydroelectric dam, which was first constructed in 1898, to mitigate upstream flooding problems. After obtaining the requisite Federal Energy Regulatory Commission (FERC) approvals for the project, PSE applied for a Clean Water Act (CWA) Section 404 dredge and fill permit from the Corps. Specifically, PSE sought verification from the Corps that its proposed dam could obtain a 404 permit under NWPs 3, 33, and 39. NWP 3 authorizes discharge for the replacement of a current structure with minor deviations; NWP 33 authorizes temporary discharges for necessary construction activities; and NWP 39 authorizes discharges for the expansion of attendant features necessary for the use of “commercial” and “institutional” buildings. The Corps verified the proposed dam complied with the terms and conditions of NWPs and concluded it would have minimal environmental impacts. Snoqualmie Valley Preservation Alliance (Alliance) filed suit challenging the Corps verification when the district court granted summary judgment in favor of the Corps. The Alliance appealed.

On appeal, the Court first addressed the Alliance’s argument that the proposed dam must undergo individual review instead of being authorized by a NWP. Central to this argument was the contention that the only NWP that may authorize a hydropower project is NWP 17, which pertains to hydropower projects less than 5000 kW at existing reservoirs, for which the instant project did not qualify because it would generate more than 5000 kW. The Court, however, explained NWP 17 is silent concerning projects that will generate more than 5000 kW and accordingly does not preclude the application of other permits to hydropower projects. Thus, contrary to the Alliance’s argument, other NWPs may permit dredge and fill activities associated with PSE’s proposed dam.

Next, the Court rejected the claim that the Corps improperly verified NWPs 3 and 39, summarized above, authorize the project. For this issue, the Court considered and gave deference to the Corps interpretation and application of NWPs 3 and 39. In applying NWP 3, the Corps sought to replace the dam for public safety purposes, specifically to prevent flooding, a rationale which the Court found consistent with language in the NWP 3’s regulatory history. The court similarly concluded NWP 39 properly applied because the proposed dam involved the construction of “attendant features that are necessary for the [its] use and maintenance” and qualifies as a commercial development under NWP 39 which specifically includes industrial facilities in that category. Simply, the plain language in the NWPs was consistent with the Corps verification, so the proposed dam was properly authorized under the NWPs.

Last, the Alliance contended the Corps failed to state a sufficient basis for its verification that the NWPs apply. The court disagreed, citing the Corps’ reason that “PSE could proceed under section 404 of the CWA because the project had minimal individual and cumulative impacts and it complied with all terms and conditions of NWPs 3, 33, and 39[,]” further indicating the conclusions were amply supported by facts in the record. Moreover, the Court went on to explain requiring more from the Corps would be contrary to the NWP scheme, which seeks to streamline the permitting process for qualifying projects, as requiring more would be tantamount to the type of individualized review required for projects that do not qualify for NWPs.

Key Point:

NWPs are mechanisms that streamline section 404 permitting. When analyzing NWPs, courts will consider their plain language and not require extensive analysis pertaining to their application or environmental effects.

Written By: Tina Thomas, Chris Butcher 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.

Ninth Circuit Requires 2004 EIS to Include Higher Level of Analysis of Environmental Impacts on Fish, While Finding the Analysis of Environmental Impacts on Amphibians Sufficient

Thursday, June 28th, 2012

In January 2001, the United States Forest Service (Forest Service) issued an environmental impact statement (EIS) recommending amendments to the Forest Plans in the Sierras Madre Mountains (2001 EIS) to conserve and repair the riparian and amphibian habitat. By November 2001, the Forest Service reviewed the 2001 EIS and its proposed alternatives, and made several substantial changes, issuing a new EIS (2004 EIS) and adopting a new alternative (2004 Framework). The Pacific Rivers Council brought suit in Pacific Rivers Council v. United States Forest Service, 2012 U.S. App. LEXIS 12553, claiming that the Forest Service’s 2004 EIS violated the National Environmental Policy Act (NEPA) and the Administrative Procedure Act (APA) by failing to take the requisite “hard look” at the environmental effects of the 2004 Framework on fish and amphibians. The United States Court of Appeals for the Ninth Circuit held that the 2004 EIS was deficient in its analysis on fish, however, sufficient in its analysis on amphibians.

With respect to the analysis of environmental consequences on fish, the Forest Service argued that the 2004 Framework was nothing more than an amendment to the Forest Plans, and thus it was not reasonably possible to provide an analysis of the environmental consequences on individual fish species. The Forest Service also claimed that the 2004 EIS satisfied the required “hard look” by incorporating the biological assessments (BA) by reference. The court disagreed with both arguments.

Responding to the Forest Service’s first argument, the court held that, based on the detailed analysis of the environmental effects on individual fish species in the 2001 EIS, along with the detailed analysis of environmental effects on individual species of mammals, birds, and amphibians in the 2004 EIS, a detailed analysis of fish in the 2004 EIS was in fact “reasonably possible.” The court explained that while the 2004 EIS was not required to have the same level of detail as the 2001 EIS, its complete lack of analysis, along with the absence of any explanation as to why no analysis was even included, was a violation of NEPA.

The court disagreed with the Forest Service’s second argument for three reasons. First, the court explained that depending on the nature of the information and its importance, it should either be in the text of the EIS, in an appendix to the EIS, or incorporated by reference. If the BAs were to serve as the requisite analysis, as argued by the Forest Service, then they should not have simply been referenced. Nor should they be included as an appendix. Based on their importance, the BAs should have been described and analyzed in the text. Next, the court held that the BAs could not even serve as the requisite “hard look” because there was no analysis of the degree or the manner by which the 2004 Framework may have affected the fish. Lastly, the court found that the BAs applied only to one group of fish species, as opposed to the three groups analyzed in the 2001 EIS. Based on those three findings, the court held that the 2004 EIS’s analysis of environmental consequences on fish was inadequate and in violation of NEPA.

With respect to amphibians, the court found the Forest Service’s 2004 EIS sufficient under NEPA. The 2004 EIS contained an extensive analysis of individual amphibians, identified changes between the 2001 and 2004 Frameworks that were likely to affect the species, and discussed mitigation strategies to minimize the environmental consequences of the 2004 Framework on amphibians. The court held that, since the Forest Service’s 2004 Framework stated that additional NEPA analysis would occur at the project-level, the current level of analysis was sufficient since site-specific projects are not yet at issue. Therefore, the court found the 2004 EIS’s analysis of environmental impacts on amphibians sufficient under NEPA.

Key Point:

The importance of information determines where the information must be presented in an EIS. The most important information must be analyzed in the text, less important information can be put in the appendix, and the least important information need only be referenced. Also, if an amendment to an alternative is significant, a new EIS must be prepared to take the requisite “hard look” at environmental consequences. A “hard look” involves considering all foreseeable direct and indirect impacts, as well as discussing the adverse impacts that do not improperly minimize negative side effects.

Written By: Tina Thomas, Amy Higuera 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.

Court Holds CARB’s Scoping Plan Complies with AB 32

Tuesday, June 26th, 2012

In Associated of Irritated Residents v. California Air Resources Board, (2012) ___ Cal.App.4th ___, the California Court of Appeal, First District, held that the California Air Resources Board (CARB) complied with the requirements of AB 32, the Global Warming Solutions Act, when it adopted its Climate Change Scoping Plan (Plan).

AB 32 requires, among other things, that CARB adopt a “scoping plan[,] as that term is understood by [CARB], for achieving the maximum technologically feasible and cost-effective reduction in greenhouse gas emissions from sources or categories of sources of greenhouse gases by 2020.” The Plan must identify and recommend emission reduction measures and alternatives, as well as evaluate total benefits to California’s economy, environment, and public health. The legislation also specifies that greenhouse gas emissions be reduced to 1990 levels by 2020, with the ultimate goal of reducing greenhouse gas emissions to 80% below 1990 levels by 2050. On May 7, 2009, CARB adopted a Plan designed to: (1) expand and strengthen existing energy efficiency programs and building and appliance standards, (2) achieve a statewide renewable energy mix of 33%, (3) implement a cap-and-trade program, (4) establish targets for transportation-related greenhouse gas emissions and incentives to meet those targets, (5) implement measures pursuant to existing state laws such as the low carbon fuel standard, and (6) create targeted fees to reduce greenhouse gas emissions.

The Association of Irritated Residents (AIR) believed CARB’s Plan did not satisfy AB 32’s requirements and initiated a lawsuit wherein the trial court ruled in favor of CARB. On appeal, the court reviewed CARB’s Plan for compliance with AB 32 under the abuse of discretion standard and addressed AIR’s arguments as follows.

The court first addressed AIR’s contention that AB 32’s Section 38561 requires CARB to adopt a Plan designed to achieve “maximum technologically feasible and cost effective reductions in greenhouse gas emissions” and that CARB failed to do so. AIR interpreted use of the word “maximum” to require CARB’s Plan to facilitate the greatest feasible greenhouse gas emissions reductions. In rejecting this contention, the court explained the Legislature intended that CARB create a Plan designed to achieve 1990 greenhouse gas emission levels by 2020 as a step toward achieving a longer-term climate goal of an 80% reduction below 1990 greenhouse gas emission levels by 2050. Thus, CARB’s Plan properly seeks to achieve 1990 greenhouse gas emission levels by 2020, and doing so is related to achieving the maximum reductions required by Section 38561. Moreover, in formulating the Plan, CARB extensively analyzed numerous measures to reduce greenhouse gas emissions as they related to achieving “maximum technologically feasible and cost effective reductions[.]” Through such analysis, CARB decided to adopt a cap-and-trade system, as well as numerous additional measures to achieve 1990 greenhouse gas emissions levels by 2020. Accordingly, CARB’s adoption of the Plan was supported by substantial evidence and could be neither arbitrary nor capricious with regard to the means chosen to satisfy AB 32’s goals.

Next, the court rejected AIR’s argument that CARB’s Plan failed to create and apply valid standard criteria for cost-effectiveness by which to compare alternative measures. As defined by AB 32’s Section 38505, cost-effectiveness is “the cost per unit of reduced emissions of greenhouse gasses adjusted for its global warming potential.” This definition does not provide criteria to assess cost effectiveness, nor does it define how costs are to be measured. Working with that definition, CARB considered four possible approaches for measuring cost-effectiveness, and ultimately adopted the “Cost of a Bundle of Strategies” approach. In the Plan, however, CARB explained in detail that a valid comparison of measures is not possible as limitations of modeling tools prevent a direct comparison of market-based measures (ie. cap-and-trade) with direct regulation measures (ie. technology forcing). As such, CARB did not directly compare certain measures in terms of cost-effectiveness because doing so would provide misleading results. The court was satisfied with CARB’s efforts to determine cost-effectiveness, and concluded those efforts were within the Legislature’s directive.

The last of AIR’s major claims was that the Plan did not do enough to reduce greenhouse gas emissions in the agricultural sector. Though the record indicated CARB extensively analyzed measures designed to reduce such emissions, the Plan only encourages capture of methane at dairies and plans to reassess the measure after five years. It goes on to explain the scientific knowledge and technology to reduce greenhouse gas emissions in the agriculture sector does not exist because 82% of the sector’s emissions result from complex biological processes. The court upheld this reasoning, finding that adopting premature mandates could be excessively costly and have environmental drawbacks.

Key Point:

CARB’s Plan is a first step toward achieving the maximum goal of reducing greenhouse gas emissions in California to 80% of the state’s 1990 emissions. The Plan reflects substantial technical analysis and scientific research with which the court was hesitant to interfere by substituting its own judgment over CARB’s.

Written By: Tina Thomas, Amy Higuera 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.

Speak Now or Forever Hold Your Peace: Petitioners Must Exhaust Their Administrative Remedies Prior to Challenging an Agency’s Decision That a Project is Categorically Exempt from CEQA

Friday, June 15th, 2012

In Tomlinson v. County of Alameda (Case No. S188161), the Supreme Court of California held that the exhaustion of administrative remedies provision as set forth in Public Resources Code section 21177, subdivision (e), applies to a public agency’s decision that a project is categorically exempt from CEQA. The Court’s eleven page decision put to rest the notion that a project opponent need not object to a categorical exemption during the administrative proceedings prior to filing a lawsuit to challenge the exemption.

Public Resources Code Section 21177, subdivision (a), provides that a CEQA challenge may be brought only if the petitioner’s alleged grounds for noncompliance with CEQA were presented to the public agency either during the public comment period or prior to the close of the public hearing on the project before the issuance of the notice of determination (NOD). Section 21177, subdivision (e), states that CEQA’s exhaustion requirement does not apply to CEQA challenges where there was no public hearing or other opportunity for members of the public to raise their objections to a proposed action prior to approval of a proposed project. In other words, the exhaustion requirement requires either a public comment period or an opportunity for public comment at public hearings before issuance of a NOD.

The Court’s holding is a significant victory for public agencies because it overturns the Court of Appeal’s decision (188 Cal.App.4th 1406) that Section 21177’s exhaustion requirement does not apply to a public agency’s decision that a project is categorically exempt from CEQA. The Court of Appeal’s decision relied heavily on Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, which held that section 21177’s public comment provision is inapplicable when a public agency determines a project is categorically exempt from CEQA because CEQA does not provide for a public comment period preceding an agency’s exemption determination. The Supreme Court disagreed, noting that in Azusa, the public agency did not hold any public hearings prior to determining the proposed project was exempt from CEQA; in contrast, the public agency did hold public hearings in Tomlinson and thereby provided petitioners the opportunity to object to the project prior to the agency’s determination that the project was exempt under CEQA’s categorical infill exemption (CEQA Guidelines section 15332).

The Supreme Court also disagreed with the Court of Appeal’s conclusion that the public hearing provision in section 21177, subdivision (a), does not apply when no NOD is filed. The Court found instead that where a NOD is filed, the public hearing provision requires a challenging party to raise its objections to the project at a public hearing before the NOD is filed. But if no NOD is filed, the public hearing provision nonetheless applies. In other words, where a party is given the opportunity to raise its objections at a public hearing before project approval, the challenging party is required to exhaust its administrative remedies by presenting its objections at the hearing. When a party fails to raise its objection, it is precluded from later raising that objection in court. An agency’s failure to file a NOD does not negate the exhaustion requirement; rather, as the Supreme Court explained: “what matters is the opportunity for comment at … public hearings, not the filing of a notice of determination.”

In light of the Court’s conclusion that the exhaustion doctrine applies to categorical exemptions, it declined to comment on petitioners’ remaining arguments that their objections at the public hearing were in fact sufficient to satisfy the exhaustion requirement and that the lead agency had misled them. The Court remanded the case to the Court of Appeal to consider what constitutes exhaustion.

Key Point:

Under the Court of Appeal’s ruling, a petitioner could refrain from objecting to an agency’s decision to approve a categorical exemption and later file a lawsuit challenging the exemption — a result that, at least according to some practitioners, undermined the very function of the exhaustion doctrine as a jurisdictional prerequisite to the courts. The Supreme Court ruling restores the exhaustion requirement for petitioners seeking to challenge a categorical exemption where the agency holds a public hearing and provides assurances to lead agencies that any parties opposed to CEQA exemptions must first exhaust their administrative remedies before filing a lawsuit.

Written By: Tina Thomas and Ashle Crocker
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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.

Ninth Circuit Ruled in Favor of Tribe, Finding that the US Forest Service Violated the ESA by Giving Permission to Mine in a National Forest

Tuesday, June 12th, 2012

In Karuk Tribe of California v. United States Forest Service, 2012 U.S. App. LEXIS 11145, the Ninth Circuit Court of Appeals held that the Forest Service (Service) violated the Endangered Species Act (ESA) by failing to consult with the appropriate wildlife agencies before approving four notices of intent (NOI). The NOIs gave miners permission to conduct private mining activities, including suction dredging, in the Klamath National Forest. Under Section 7 of the ESA, an agency must consult with wildlife agencies for any “agency action” that “may affect” a listed species or its critical habitat. The court focused on two substantive questions: 1) whether Service’s approval of the NOIs constituted “agency action” within the meaning of Section 7; and 2) whether the approved mining activities “may affect” a listed species or its critical habitat. Answering both in the affirmative, the court remanded the case for entry of judgment in favor of the Karuk Tribe (Tribe).

Before considering the substantive questions, the court addressed the Service’s argument that, due to the statewide moratorium on suction dredge mining, the case was moot. However, the court explained that the moratorium did not prohibit other mining activities at issue in this case, and the moratorium was only temporary. Also, the court found that even though the NOIs the Tribe challenged had already expired, the case could still be heard under the “capable of repetition, yet evading review” exception to the mootness doctrine. Since the Tribe could not feasibly complete litigation before the NOIs expire, and since there is a reasonable expectation that the Service will engage in the challenged conduct again in the future, the court decided to hear the case and rule on its merits.

Turning to the first issue of “agency action,” the court explained that an agency must consult under Section 7 if two criteria are met. First, the agency must make an affirmative authorization. In past cases, the court found that the Service’s approval of an NOI was not merely advisory but rather a final agency action that “marks the consummation of the agency’s decision making process.” Hells Canyon Pres. Council v. U.S. Forest Serv., 595 F.3d 923, 930 (9th Cir. 2010). Based on that case law, along with the Service’s mining regulations and actions, the court determined that the Service had affirmatively authorized the private mining activities to proceed when it approved the four NOIs.

Second, the action must have “discretionary federal involvement or control.” Karuk Tribe of Cal., 2012 U.S. App. LEXIS 11145 at 42. The Service’s actions meet that criterion if the Service could influence a private activity to help a listed species. The court found three ways in which the Service exercised discretion in deciding whether to approve the NOIs: 1) by formulating criteria to protect the Coho salmon; 2) by refusing to approve a NOI because it had insufficient protection of the salmon habitat; 3) by applying different criteria for different areas of the Klamath National Forest. These three examples, along with established case law, supported the court’s finding that the Service’s actions of approving the four NOIs constituted an affirmative, discretionary decision to allow private mining activities to proceed. The Service therefore had a duty to discuss matters with the appropriate wildlife agencies.

The court next found that the approved mining activities “may affect” a listed species and its critical habitat. The court first looked at the record and found ample evidence that the mining activities, especially suction dredge mining, “may affect” Coho salmon. Along with the record, the court explained that by definition, mining activities that require a NOI “might cause” disturbance of surface resources, thus they “may affect” the environment and listed species. The court concluded that because the mining activities clearly “may affect” a listed species and its critical habitat, and because the Service’s actions constituted “agency action,” the Service had a duty to consult under Section 7 before approving the four NOIs. The Service’s failure to do so constituted a violation of the ESA.

Key Point:

This case confirms that, before an agency can conduct an “agency action” that “may affect” a listed species or its critical habitat, it must consult with the appropriate wildlife agencies. Agencies that make an affirmative authorization while retaining discretionary control and also have the capacity to benefit listed species must discuss matters further with expert wildlife agencies.

Written By: Tina Thomas, Ashle Crocker and Holly McMannes (law clerk)___________
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.

CSU Board of Trustees’ EIR for Campus Expansion was Held as Sufficient, with the Exception of its Analysis on Impacts to Surrounding Parklands

Tuesday, June 12th, 2012

In an unpublished decision, City of Hayward v. Board of Trustees of the California State University, 2012 Cal. App. Unpub. LEXIS 4097, the Board of Trustees of the California State University (Trustees) wished to expand its Hayward campus in order to meet its assigned enrollment ceiling.  In 2009, the Trustees approved a master plan to guide campus development for the next 20-30 years.  The City of Hayward (City) sued claiming the Trustees’ environmental impact report (EIR) failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands.  The California First Appellate District reversed the trial court’s holding and found that the Trustees’ EIR was adequate, with the exception of parklands.  The court therefore modified the writ of mandate ordering the Trustees to revise the analysis of potential environmental impacts to surrounding parklands.

Based on the Trustees’ analysis on fire protection and public services, the court came to four conclusions.  First, the court found substantial evidence to support the Trustees’ conclusion that additional and expanded fire facilities will not have a significant environmental impact.  Second, the court held that the Trustees did not have to provide mitigation measures for the new fire facilities since they concluded that more fire protection services would not result in significant environmental impacts.  Third, the court stated that the Trustees do not need to fund the expansion of the fire department services but rather the city has a constitutional duty to provide such services.  Lastly, the court found that the EIR sufficiently analyzed the impact of the campus expansion on the city’s public services and properly came to the conclusion that the “cumulative effect would be less than significant.”

The court next addressed the issue of traffic and parking.  The court first held that the Trustees’ analysis of potential sites for faculty housing was sufficient.  Since the Trustees prepared a program EIR as opposed to a project EIR, they properly deferred site-specific analysis of possible environmental effects of building faculty housing until a later time.  The court next examined the Trustees’ mitigation measures.  With the main goal of shifting commuters out of single-occupant cars and into carpools, transit, biking, and walking, the court found “no deficiency” in the way the EIR considered impacts of the master plan on parking and traffic, incorporated mitigation measures, and reached the conclusion that some environmental impacts are unavoidable.  Lastly, the City claimed that the Trustees’ EIR failed to include a “mitigation measure … providing for the University to pay its fair share of traffic improvements.”  (City of Hayward, 2012 Cal. App. Unpub. LEXIS 4097 at 60.)  Since the City did not raise this issue in its opening brief, the court declined to address it and held it as waived.

Pertaining to impacts on air quality, the court supported the Trustees’ EIR.  While the EIR concluded that the master plan would produce long-term emissions of pollutants, it presented transportation mitigation measures that would reduce some, though not all, emissions to a less than significant level.  The court also explained that since neither the trial court nor the City suggested further mitigation measures the Trustees should consider, then that portion of the Trustees’ EIR was sufficient and did not need to be reexamined.

Impacts on parklands was the one area with which the court agreed with the City and the lower court.  The court explained that the Trustees’ reliance on “long-standing use patterns” of the students as opposed to factual evidence was “nominal” and did not prove a meaningful enough  analysis to inform or analyze the extent of the impact the master plan was likely to have on surrounding parks.  Therefore, the court ordered the Trustees to reanalyze those impacts prior to certifying a revised EIR.

Written By: Tina Thomas, Ashle Crocker 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.

Attorney General Releases Report Interpreting CEQA to Require Consideration of Environmental Justice Issues at the Local and Regional Levels

Tuesday, June 12th, 2012

On May 8, 2012, the California Attorney General’s office released a report entitled  “Environmental Justice at the Local and Regional Level – Legal Background” (Report) which interprets existing law to impose environmental justice obligations that local governments must consider when approving specific projects and planning for future development.

“Environmental justice” is defined in the Government Code as “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation, and enforcement of environmental laws, regulations, and policies.”  (Gov. Code, § 65040.12, subd. (e).)  The Report defines “fairness” in this context to mean that “the benefits of a healthy environment should be available to everyone, and the burdens of pollution should not be focused on sensitive populations or on communities that already are experiencing its adverse effects.”

The Report first asserts that Government Code section 11135, which prohibits discrimination by any state agency, requires local governments to consider the same issues of “fairness” in the planning context.  The Report notes that, if a local government is found to have violated Government Code section 11135 which, according to the Report, may occur if environmental justice issues are not considered, then state funding can be “curtailed” and a civil action may be brought.

The Report then interprets the California Environmental Quality Act (CEQA) and its implementing Guidelines to require lead agencies to consider the public health burdens of a project as they relate to environmental justice for certain communities.    While the Report acknowledges that there is no mention of “environmental justice” within CEQA, the Report notes that CEQA’s main purpose is to evaluate whether a project may have a significant effect on the physical environment, and asserts that “human beings are an integral part of the environment.”

The Report provides several examples of specific provisions of CEQA and its Guidelines that the Attorney General asserts require local lead agencies to consider how the environmental and public health burdens of a project might specially affect certain communities.  Specifically, the Report cites the requirement that the environmental setting of a project be considered and notes that a project that is ordinarily insignificant in one setting may be significant in another.  The Report also cites the requirement that agencies assess the cumulative impacts of a project by examining a project’s effects in connection with the effects of past, current, and probable future projects, along with effects on nearby communities.  In addition, the Report cites the provisions of CEQA that recognize the potential relevance of social and economic impacts, even though the main focus of CEQA is on environmental impacts.

Under CEQA, agencies are prohibited from approving projects with significant environmental effects if there are feasible alternatives or mitigation measures that would lessen or avoid those effects.  The Report adds that, “where a local agency has determined that a project may cause significant impacts to a particular community or sensitive subgroup, the alternative and mitigation analyses should address ways to reduce or eliminate the project’s impacts to that community or subgroup.”

Finally, the Report acknowledges that local agencies have discretion to approve a project, even one with unavoidable environmental impacts.  However, the Report asserts that, if the benefits of a project will be enjoyed widely, but the environmental burdens of a project will be felt particularly by the neighboring communities, then that balance the agency has struck should be set out plainly in the statement of overriding considerations.

A copy of the Report can be found at:

http://oag.ca.gov/sites/all/files/pdfs/environment/ej_fact_sheet_final_050712.pdf

Written By: Tina Thomas, Amy Higuera 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.