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CEQA Updates

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

Posts Tagged ‘downstream effects’


First District Court of Appeal Finds Project Description, Downstream GHG Emissions Analysis, and Existing Train Hazards Analysis Sufficient, Upholds Oil Recovery Project RFEIR

Tuesday, March 20th, 2018

An oil refinery against the evening sky (Michael Mep)

In Rodeo Citizens Association v. County of Contra Costa (2018) 22 Cal.App.5th 214, the First District Court of Appeal held the project description, greenhouse gas (GHG) emissions analysis, and hazard impact analyses for upgrades to an oil refinery project were sufficient under CEQA therefore, Contra Costa County (County) properly approved the project. Despite this, the trial court writ of mandate setting aside the project remained intact until certain air quality analyses were complete.

Phillips 66 Company (Phillips) applied for a permit to upgrade the facility and operations at an existing oil refinery propane recovery plant (Project). Specifically, the Project would add to and modify existing facilities to enable Phillips to recover butane and propane from its refinery and ship it by rail. After circulating the draft EIR and responding to comments, the County approved a recirculated final EIR (RFEIR).

Rodeo Citizens Association (Petitioners) challenged the approval on the grounds that the project description was inaccurate for failing to address future projects and imports, the analysis of cumulative impacts, air quality and GHG impacts were insufficient, and the RFEIR overlooked the increased risk of accidents from train derailments or explosions at project completion.

Relying on San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, Petitioners alleged the project approval was improper because the project description was not “accurate, stable, and finite” where Phillips executives had made public comments about future projects whose impacts would run seemingly contrary to the RFEIR. The Appellate Court held even if a project applicant’s statements indicate an anticipated or potential future change to a site, petitioners must also present evidence showing a connection between the project and any intended change. None of the statements established the future projects were dependent on a change or intended change in the proposed Project.

Petitioners also claimed that the project description and RFEIR were insufficient for failing to detail the Project’s environmental impacts from purported changes to the crude oil feedstock, specifically the refining of heavier oils. The Court found that the RFEIR laid out that the Project is not dependent on a change in feedstocks and the Project only plans to utilize existing steam without any additional imports or modifications to the refinery. Thus, substantial evidence in the record supported the conclusion that the Project was independent of any purported change in the crude oil feedstock used at the refinery and would not increase its present capacity to refine heavier oils.

The Court upheld the lead agency’s description of the Project and concluded that Petitioners failed to provide evidence that the lead agency’s approval of the Project inappropriately approved any potential future changes not included in the Project description.

Next, the Court found the GHG considerations detailed in the RFEIR were “reasonable” under the circumstances; environmental review documents may find a project’s contribution to GHG emissions will be less than cumulatively considerable if there is sufficient showing that the Project is part of the State’s solution to climate change. While Petitioners claimed that the RFEIR failed to consider GHG emissions resulting from the combustion of project-captured propane and butane sold to downstream users, such a claim misconstrued the situation. Phillips considered downstream users in the RFEIR but was unable to definitively pinpoint the buyers’ uses. Indeed, the Court highlighted, propane and butane are low-GHG emitting gasolines mostly used in place of high-GHG emitting gasolines therefore reducing overall GHG emissions. An agency’s inability to quantify all down-stream emissions from project-related activities does not compel the agency to conclude that the project creates a significant and detrimental contribution to GHG impacts. Any possible negative environmental impacts were too speculative for evaluation; investigating these possibilities were beyond the County and Phillips’ responsibilities.

Finally, the Court rejected Petitioners’ allegations that the RFEIR overlooked the increased risk of accidents from train derailments or explosions as a result of the Project. In the RFEIR, Phillips properly addressed significance of the Project’s impacts without reference to existing risks posed by operation of the refinery, reasonably determined that the potential impacts were less than significant, and underscored that comparative worst case scenario analyses may reasonably consider only those impacts that have moderate or high consequence of occurrence.

The Court affirmed the trial court holding on each of these issues.

Key Point:

Project descriptions are sufficient where not misleading or inaccurate. Greenhouse gas emission considerations under CEQA may be sufficient where the project emissions are downstream and evidence supports the project aligns with statewide solutions to climate change.

First District Court of Appeal Rejects Urban Decay Claim Against Courthouse Relocation Project for Failure to Show a Substantial Environmental Impact

Friday, September 15th, 2017

In Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal. App. 5th 187, the First District Court of Appeal affirmed the trial court and upheld the Judicial Council of California’s (“Judicial Council”) certification of an EIR analyzing the relocation of a courthouse (“Project”) in the City of Placerville (“City”). The Project involves the consolidation of trial court operations from the historic downtown Main Street courthouse and a County administrative complex into a new three-story building on undeveloped land adjacent to the County jail, located less than two miles from downtown Placerville. Plaintiffs challenged Project approval and filed a writ of mandate alleging that the Project would create substantial urban decay. The trial and appellate court reasoned that although the courthouse would impact some businesses in the area, that plaintiffs had not met the evidentiary burden to establish a substantial impact satisfying CEQA.

After the Judicial Council certified the final EIR in June 2015, the plaintiff, a group of County citizens with “a particular interest in the protection of El Dorado County’s environment,” sued the Judicial Council. Although the plaintiff’s petition alleged four deficiencies in the EIR, only one of them, the failure to treat the potential for urban decay resulting from relocation of courthouse operations as a significant environmental impact, was ultimately argued at the trial court. The trial court found in favor of the Judicial Council.

On appeal, the court concluded that under CEQA urban decay is defined as “physical deterioration of properties or structures that is so prevalent, substantial, and lasting a significant period of time that it impairs the proper utilization of the properties and structures, and the health, safety, and welfare of the surrounding community.” Citing Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 685, the court further provided that physical deterioration includes “abnormally high business vacancies, abandoned buildings, boarded doors and windows, parked trucks and long-term unauthorized use of the properties and parking lots, extensive or offensive graffiti painted on buildings, dumping of reuse or overturned dumpsters on properties, dead trees and shrubbery, and uncontrolled weed growth or homeless encampments.”

In applying the definition of urban decay to the facts of this case, the court held that physical deterioration was not a reasonably foreseeable consequence of terminating judicial functions at the Main Street courthouse.

Finally, the court found that an informal survey submitted by a local resident that suggested that some businesses would lose revenue as a result of the Project, is little more than anecdotal evidence where the nature of the survey is not explained, including the manner in which participants were selected, the proportion of businesses participating, and the number responding that there would be no effect on their businesses. Distinguishing this case from Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, the court found that the administrative record in this case did not contain sufficient evidence supporting the validity of concerns about the Project impacts, such as an economic study and articles related to the risk of urban decay.

Key Point:

The First District elaborated on and applied the definitions of environmentally significant “urban decay”, and reinforced the level of evidence required to conclude that project-related physical deterioration is a significant and reasonably foreseeable consequence of a project.