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CEQA Updates

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

Posts Tagged ‘environment’


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 LEXIS 761, publication status was recently changed from unpublished to published on June 28, 2012.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.

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.

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.

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.

Governor Brown Seeks to Insulate California High Speed Rail From CEQA Challenges

Wednesday, June 6th, 2012

Governor Brown’s office has proposed new legislation that would modify the California Environmental Quality Act (CEQA) to limit the circumstances under which a court could issue an injunction or other stop work order on the California High Speed Rail (HSR) project pending the outcome of CEQA litigation.  The proposed legislation aims to protect the HSR project from a halt in construction that could result from recently filed CEQA litigation, including lawsuits filed by the City of Chowchilla and the County of Madera and Madera and Merced County Farm Bureaus, challenging the Environmental Impact Report (EIR) for the portion of the proposed HSR line that will traverse through the Central Valley.  The Legislature will likely consider the proposal in the next month.

For more information on the Governor’s proposal visit: http://www.sacbee.com/2012/06/02/4532775/jerry-brown-moves-to-protect-high.html

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.

Court Denies Attorney’s Fees Where Successful Petitioner Does Not Confer a Significant Benefit to Public and Discharges Writ of Mandate After Compliance

Wednesday, June 6th, 2012

In an unpublished opinion, California Oak Foundation v. County of Tehama (2012) 2012 Cal. App. Unpub. Lexis 3970, the California Third District Court of Appeal affirmed a decision denying petitioner’s request for attorney’s fees on the basis that their successful challenge to a golf course community project, which Tehama County approved in 2006, did not significantly benefit the general public. The court also affirmed the order to discharge a writ of mandate requiring Tehama County to consider certain evidence as it related to I-5 mitigation fees to be imposed on the project.

The court had previously issued a writ of mandate requiring the county to comply with CEQA by considering evidence brought forth by the county’s economic consultant pertaining to I-5 traffic mitigation fees. In 2010, the county reapproved the project without any changes, on the apparent basis that the decline in home prices between 2006 and 2010 made higher fees to mitigate I-5 traffic infeasible.

After the county reapproved the project, petitioner brought suit seeking attorney’s fees incurred during the first case, and also arguing that the trial court improperly discharged the writ because the county employed flawed reasoning when it considered I-5 mitigation fees. The court denied petitioner’s attorney’s fees request. Because the county reapproved the project without any changes, petitioner’s lawsuit conferred no significant benefit to the general public. Because no significant benefit to the general public resulted from their lawsuit, petitioner failed to satisfy a requirement for attorney’s fees to be awarded in such a case. Next, the court held the county acted reasonably when it concluded the lower home prices in 2010 made higher I-5 traffic mitigation fees infeasible. Because the county articulated reasonable grounds for its conclusion that higher I-5 mitigation fees were infeasible, the county complied with CEQA and the writ of mandate was properly discharged.

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.

Federal District Court Stays Litigation over Endangered Frog and Snake to Permit U.S. Fish and Wildlife Service Consultation to Conclude

Thursday, May 24th, 2012

In Wild Equity Institute v. City and County of San Francisco, 2012 U.S. Dist. LEXIS 58620, Plaintiffs, a collection of non-profit conservation groups, sued the City of San Francisco (City) for violation of the Endangered Species Act (ESA), claiming City’s actions as the owner and operator of the Sharp Park Golf Course (SPGC) have caused the “taking” of the threatened California Red-Legged Frog (Frog) and the endangered San Francisco Garter Snake (Snake).  Both parties filed cross-motions for summary judgment. Plaintiffs sought partial summary judgment on the issue of whether the City’s water pumping activities caused a “taking” of the Frog.  City countered with motions for summary judgment on the grounds that Plaintiffs lack standing to pursue their claims, or in the alternative, sought a stay during consultation with U.S. Fish and Wildlife Service (FWS) for authorization to move individual Frog egg masses.  The District Court for the Northern District of California denied both parties’ motions and stayed the case.

Addressing first the issue of standing, the court began by discussing the Article III standing requirements of injury-in-fact, causation, and redressability.  The court quoted  Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 181 (2000) to explain that environmental plaintiffs have suffered a concrete, actual, injury-in-fact when they “aver that they use the affected area and are persons ‘for whom the aesthetic and recreational values of the area will be lessened’ by the challenged activity.”   The court held that these Plaintiffs have claimed impaired enjoyment of seeing the Frog and Snake, have pinpointed specific dates at which they have visited the park, and have presented concrete plans to visit the park again in the future; Plaintiffs have sufficiently shown an injury-in-fact.

Regarding causation, City argued that Plaintiffs did not show that City’s actions at SPGC reduced the Frog population to the extent it would adversely affect their opportunity to observe the Frogs.  The court rejected this argument finding a genuine issue of fact pertaining to the growth of the Frog population – according to City it is growing, but according to the Plaintiffs’ experts the population is merely stable.  The court explained that the value of an area can be affected by a stymied population growth even in the absence of an actual population loss.  Pertaining to redressability, the court assumed that Plaintiffs’ remedial theories are correct, that halting the pumping and lawn mowing actually will stop the “taking” of the Frog and the Snake.  Finding all three criteria satisfied, the court held that Plaintiffs have standing.

The court held, however, to stay the case for two reasons.  First, the court found that the City’s consultation with FWS is underway and could possibly be completed within a few months.  The court wanted to allow the expert agency to review the City’s plan and evaluate the impacts on the Frog and Snake.  The court explained that if the City is granted authorization, then the case will be moot.  Second, the court felt that since it is now April and Frog breeding will not occur again until late winter, no actual “taking” of the Frog eggs will occur until then.  Therefore, the court ordered a stay pending the outcome of the FWS consultation.

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.

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.

Where a Local Government Does Not Endorse Amendments to its Certified Local Coastal Program, the Coastal Commission’s Authority to Adopt such Amendments is Very Narrow

Tuesday, May 22nd, 2012

In City of Malibu v. California Coastal Commission (2012) ___ Cal.App.4th ___, the California Court of Appeal, Second District, considered whether California Public Resources Code section 30515, known as the override provision of the Coastal Act, allows a public works agency to apply to the Coastal Commission to override policies and standards in a locality’s local coastal program merely because it is a public works agency.

The Santa Monica Mountains Conservancy and the Mountains Recreation and Conservation Authority, a joint powers agency of which the conservancy is a constituent member, (collectively, the Conservancy) requested the City of Malibu (City) amend its local coastal program in part to facilitate the Conservancy’s future plans to develop four park properties. In response to the Conservancy’s request, the City amended its local coastal program and submitted it to the Coastal Commission for review. The amendments, however, were not satisfactory to the Conservancy and the Conservancy proposed its own alternative amendments to the Coastal Commission. The Conservancy asserted that section 30515 allows it, as a “person authorized to undertake a public works project,” to request, and for Coastal Commission to adopt, proposed amendments to the City’s certified local coastal program even over the City’s objection. The Coastal Commission agreed with the Conservancy’s interpretation of section 30515 and approved the Conservancy’s amendments instead of those proposed by the City. The City responded by filing a lawsuit arguing that the Coastal Commission abused its discretion by adopting the amendments proposed by the Conservancy over the City’s objections. The trial court agreed and the Conservancy appealed.

On appeal, the Court looked to the plain language of section 30515 and concluded that the statutory interpretation proposed by the Conservancy and Coastal Commission would lead to absurd results. If the conservancy’s interpretation were correct, any public works agency in California would be on “equal footing” with a city to seek Coastal Commission certification of amendments to its local coastal program over the city’s objections. Instead, the Court held section 30515 permits the Coastal Commission to override a locality’s local coastal program where a person applies to the Coastal Commission to actually “undertake a public works project or an energy facility development that would otherwise be prohibited by the local government’s certified [local coastal program.]” The interpretation proposed by the Conservancy and Coastal Commission would permit public works agencies to circumvent the local land use process by rendering the Coastal Commission as the land use decision maker; an interpretation that is not countenanced by the statute. Accordingly, the Coastal Commission lacked jurisdiction to approve the Conservancy’s proposed amendments to the City’s local coastal program because the Conservancy was not proposing to undertake a public works project.

Key Point:

Section 30515 provides a public agency with a procedural recourse to override a local coastal plan only where a public works project or energy facility development is actually undertaken and other very narrow criteria are met.

Written By: Tina Thomas, Chris Butcher and Grant Taylor (law clerk)
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