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CEQA Updates

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

Posts Tagged ‘environmental’


Court Disagrees with Sunnyvale and Madera Decisions and Holds that use of Projected Future Conditions as a Baseline for Analyzing Environmental Impacts is Proper where Supported by Substantial Evidence

Wednesday, April 18th, 2012

In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012 Cal.App. LEXIS 434), the Second Appellate District upheld the lead agency’s determination that a future 2030 baseline was proper for determining the significance of traffic and air quality impacts caused by a proposed light rail project in Los Angeles. The EIR at issue used the existing physical environmental conditions as the baseline conditions for most environmental topics; but for traffic and air quality impacts, the agency elected to utilize the future baseline conditions that consisted of existing transit services and improvements that the Regional Transportation Plan explicitly identified as projects to be constructed by the year 2030.

Petitioners objected to the agency’s approach, stating that the 2030 conditions represented a “hypothetical scenario” not unlike the scenario struck down by the Supreme Court in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310 (CBE). Petitioners also relied on Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (Sunnyvale) and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 (Madera), both of which held that projected future conditions provided an improper baseline for determining traffic impacts.

In CBE, the Supreme Court rejected the use of “hypothetical allowable conditions” when those conditions did not provide a “realistic description of the existing conditions” without the project. There, the agency’s baseline assumed maximum operation of an oil refinery. Because the refinery did not operate at maximum capacity under normal circumstances, the Court determined that the EIR’s baseline was not a realistic description of the existing conditions without the project and concluded that using such a baseline provided an illusory basis for analyzing the significance of environmental impacts.  In Neighbors for Smart Rail, the court distinguished CBE and found that “there is nothing ‘illusory’ about population growth and its inevitable impacts on traffic and air quality: population is growing, and population increases do affect traffic and air quality, with or without the project.” Thus, using a 20-year planning horizon to measure traffic and air quality impacts of a long-term rail infrastructure project is “eminently realistic.” The court found nothing to the contrary in CBE.

The court also stated that “to the extent Sunnyvale and Madera purport to eliminate a lead agency’s discretion to adopt a baseline that uses projected future conditions under any circumstances, we disagree with those cases.” According to the court, “[a]n analysis of the project’s impacts on anachronistic 2009 traffic and air quality conditions would rest on the false hypothesis that everything will be the same 20 years later.” The court explained that the proposed light rail project would not commence operation until 2015 at the earliest, therefore its “impact on presently existing traffic and air quality conditions will yield no practical information to decision makers or the public” and “does nothing to promote CEQA’s purpose of informed decisionmaking on a project designed to serve a future population.” The court therefore rejected the notion that CEQA forbids use of projected conditions as a baseline, and held that “an agency’s use of a projected future baseline, when supported by substantial evidence, is an appropriate means to analyze the traffic and air quality effects of a long-term infrastructure project.”

Key Point:

Depending on the type of project at issue, use of projected conditions may be an appropriate way to measure the environmental impacts that a project will have on traffic, air quality and greenhouse gas emissions.  If a future baseline is selected, lead agencies are advised to carefully document the reliability of the projected future conditions as well as the inevitability of the changes on which those conditions are based.  As is true in CEQA cases generally, substantial evidence in the record must support the agency’s selected baseline.

Until the Supreme Court addresses this issue, Madera and Sunnyvale remain good law. Thus, courts faced with this issue – especially in the Fifth District – may elect to follow Madera and Sunnyvale rather than Neighbors for Smart Rail. Until this issue is settled, agencies may wish to consider using multiple baselines, each supported by substantial evidence, for a “belt and suspenders” approach to their analyses.

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.

The Sacketts will have their day in Court to Challenge an EPA Compliance Order

Thursday, March 22nd, 2012

In a unanimous decision, the U.S. Supreme Court overturned the lower courts’ ruling and held that Michael and Chantell Sackett, Petitioners, may bring a civil action under the Administrative Procedure Act (APA) to challenge the Environmental Protection Agency’s (EPA) issuance of an administrative compliance order for alleged violation of Section 309 of the Clean Water Act (CWA), 33 U.S.C. section 1319, requiring Petitioners to take certain actions to restore their property to its natural condition or be faced with penalties up to $75,000 per day.  (Sackett v. EPA, 566 U.S. ___ (2012).)

Petitioners, who own a 2/3-acre residential lot in Bonner County Idaho near Priest Lake used dirt and rock to fill part of their lot prior to building a home.  Some months later, Petitioners received a compliance order from the EPA with findings and conclusions which listed several violations of the CWA.  On the basis of the findings and conclusions, the Petitioners were required to restore the site in accordance with an EPA Work Plan.  Petitioners did not believe their property was subject to the CWA and requested a hearing with the EPA, which they were denied.  The Petitioners then brought suit in the District Court, claiming that issuance of the compliance orders was arbitrary and capricious under the APA and deprived them of “life, liberty or property, without due process,” in violation of the Fifth Amendment.  The District Court dismissed for lack of subject matter jurisdiction.  The Ninth Circuit Court of Appeals affirmed and concluded that the CWA precludes pre-enforcement judicial review of compliance orders and does not violate due process under the Fifth Amendment.

The Supreme Court considered whether the compliance order was a “final agency action” under the APA.  The Court determined that the compliance order represented the conclusion of the agency’s consideration as: a) the Petitioners were required to restore their property;  b) legal consequences flowed from the issuance of the order;  c) the compliance order exposed Petitioners to double penalties in a future enforcement proceeding;  d) Petitioners were not allowed to receive a permit for fill with the U.S. Army Corps of Engineers (Corps’ regulations  do not allow the issuance of a permit with an outstanding EPA compliance order); e) Petitioners were not granted a hearing with EPA, and thus, the findings and conclusions of the compliance order were not subject to further agency review;  and f) the APA’s judicial review provision requires that a person have no other adequate remedy in court.  The Court stated that the compliance order “has all the hallmarks of APA finality” and therefore, is subject to judicial review.

The Court stressed that it was not deciding the merits of Petitioners case, only that they had a right to file a complaint now that the EPA’s compliance order is final.  Justice Ginsberg wrote in a separate opinion that she had concurred with the Court’s opinion on the understanding that the merits of the case were still open to debate.

In a separate concurring opinion, Justice Alito argued that “in a nation that values due process, not to mention private property, such treatment [by the EPA] is unthinkable.”  Justice Alito also took this opportunity to call out Congress, the EPA and the Corps for their failure to provide “clarity and predictability” in dealing with the CWA’s definition of “waters of the United States.”  Justice Alito opined
“[r]eal relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.”

Key Points:

The Court’s ruling gives property owners relief from the EPA’s  practice of issuing “compliance orders” to property owners notifying them that their property is a federally protected wetland, and requiring them to stop using their land and restore it to its prior condition, under penalty of  severe fines.  In many cases, the EPA may then wait months or years before actually suing the property owner to collect the fines, which accrue daily. In the meantime, the EPA has operated under the belief that the property owners cannot challenge issuance of the compliance order in court, and instead must wait until the EPA sues them to collect the fines, which may have accrued to millions of dollars.   Under the Court’s ruling, CWA compliance orders are final agency actions, and are subject to pre-enforcement judicial review under the APA.

Written By: Tina Thomas and Michele Tong
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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 Orders Partial Publication of Consol. Irrigation Dist. v. City of Selma (2012) __ Cal.App.4th __

Monday, March 19th, 2012

On March 9, 2012, the Fifth Appellate District ordered a portion of its decision in Consol. Irrigation Dist. v. City of Selma (2012) __ Cal.App.4th __ (2012 Cal. App. LEXIS 277) published. Specifically, the Court ordered all but Sections I.A., III., IV.C., IV.D., V., and VI. of DISCUSSION published. The portions of the opinion ordered published relate to augmenting the administrative record, the irrigation district’s standing to file the CEQA action, and the credibility of evidence used to establish a fair argument under CEQA. The sections of the decision discussing the substantive application of the fair argument test where not ordered published.

With respect to the trial court’s decision to augment the record, the Court applied the substantial evidence standard of review. The trial court determined that the petitioner’s declaration stating that certain documents not included in the record were submitted to the City was the most credible of the declarations submitted at trial concerning augmentation of the record. The Court held that this determination by the trial court constituted substantial evidence demonstrating that the administrative record was properly augmented. The Court explained that to reject the trial court’s credibility determination its conclusion must be “physically impossible or obviously false without resorting to inference or deduction.”

In addressing the irrigation district’s standing to sue, the Court concluded Water Code section 22650 establishes that the irrigation district has standing to seek a writ of mandate. The Court concluded further that a public agency is not required to have jurisdiction over a natural resource affected by a proposed CEQA project to have a beneficial interest for the purposes of standing. Because the court found Water Code section 22650 to give the irrigation district standing, the Court declined to consider whether the irrigation district, as a governmental agency and not a citizen, can have public interest standing.

Lastly, the Court rejected the City’s argument that evidence submitted by the irrigation district was incredible and, thus, incapable of establishing a fair argument of potentially significant environmental impacts. The Court stated that to reject evidence as incredible, an agency must identify the evidence that was challenged with sufficient particularity to allow the reviewing court to determine whether there were legitimate, disputed issues of credibility. Here, the City cited no evidence that any particular statements in the record were disputed by the city council, planning commission, or staff during the administrative process. Therefore, the Court held the City’s credibility argument lacked merit.

Key Points:

Courts will not entertain an agency’s argument that evidence submitted during the administrative process lacks credibility unless the agency confronts this question during the administrative process and based on substantial evidence concludes the evidence is incredible.

Written By: Tina Thomas and Chris Butcher
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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.

City Appeal of Trial Court Order Found Moot where City had Complied with the Order

Wednesday, March 7th, 2012

In Building a Better Redondo v. City of Redondo Beach (February 22, 2012) __ Cal.App.4th __ (Case No. 124769), a group of slow-growth advocates brought a petition for writ of mandate and declaratory relief against the City of Redondo Beach, seeking an order compelling the city to submit a local coastal program amendment to public vote in compliance with a charter amendment the city had recently enacted, which required any “major change in allowable land use” to be approved by city voters. The city argued that the local coastal program amendment predated the charter amendment and thus was not governed by the charter amendment. The trial court found the local coastal program amendment constituted a major change in allowable land use and ordered the city to place the amendment before the voters. Although the city appealed the judgment, it also voluntarily complied with the court’s order and the voters approved the amendment. The city’s final certification of the local coastal program followed. Subsequently, the trial court awarded petitioners $313,000 in attorney fees.

The appellate court dismissed the city’s appeal from the judgment as moot and affirmed the award of attorney fees. The court held that the results of the election approving the amendment were indisputably in effect for all purposes and would remain so regardless of the outcome of the appeal. Therefore, granting relief from the judgment would have no practical effect and the city conceded as much. No exception to the mootness doctrine applied. The case did not involve a matter of continuing public interest since it involved fact-specific issues that were unlikely to recur. The city claimed its appeal was not moot because the award of attorney fees was dependent upon the propriety of the trial court’s ruling on the merits of the action. According to the city, a reversal of the trial court ruling on the merits necessarily would require a reversal of any award of attorney fees since petitioner would no longer qualify as a prevailing or successful party for purposes of the attorney fee claim. The court disagreed with the contention that the appeal of the award of attorney fees prevented it from finding the appeal on the merits moot in this case, distinguishing the cases upon which the city relied.

The court also upheld the trial court award of attorney fees. The trial court did not abuse its discretion when it found that the claimed hourly fees, although substantial, were not unreasonably high in view of the quality of the work and counsel’s special expertise. The court found that the award was properly based on the reasonable market value of the services, even though the petitioners had been charged a reduced fee.

Key Point:

In finding that the appeal of the attorney fee claim did not revive the appeal on the merits, the court distinguished CEQA cases where the appeal involved the rights of third parties who exercised their own, separate right of appeal from judgments finding an EIR inadequate. In these CEQA cases cited by the city, the lead agency’s decision to comply with the writ and perform further environmental review did not render appeal of the judgment moot. The court in this case indicated that the dispositive fact saving the appeal from dismissal for mootness was not that the appeal involved an attorney fee award (despite language in at least one CEQA case finding an appeal on the merits was not moot because the award of attorney fees depended on the correctness of the ruling on the merits), but that the appeal was brought by the real party in interest who is aggrieved and has standing to appeal regardless of the agency’s decision to comply with the order.

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.

Tahoe Regional Planning Agency Retains Discretion to Select the Appropriate Baseline for Environmental Review of its Shorezone Amendments

Wednesday, March 7th, 2012

TRPA adopted amendments to the shorezone regulations in 2008, setting development caps on the number of new buoys and piers allowed in Lake Tahoe, and certified an environmental impact statement (EIS) for the amendments. The League to Save Lake Tahoe and Sierra Club (Plaintiffs) challenged filed a lawsuit, alleging that the EIS failed to explain and evaluate the impact of replacing unpermitted boat buoys currently on Lake Tahoe with permitted buoys on a one-for-one basis. Specifically, Plaintiffs challenged TRPA’s decision to consider all existing buoys on Lake Tahoe, both permitted and unpermitted, when establishing the environmental baseline. The baseline helped TRPA determine the maximum number of buoys, piers and other boating facilities that can be allowed on the lake. Plaintiffs argued that if TRPA had considered only the permitted buoys to establish its baseline, rather than permitted and non-permitted buoys, the threshold for measuring environmental impacts would have been much lower and thus the maximum number of allowable buoys and piers (and the number of boats and pollution in the Lake) would also have been lower. The Eastern District of California agreed with Plaintiffs and, in its 2011 decision, the court held that the unpermitted buoys must be excluded from the baseline. The court found that TRPA’s failure to explain and justify the baseline was arbitrary and capricious and, in the alternative, that TRPA’s use of the existing permitted and non-permitted buoys was contrary to the TRPA Compact. TRPA appealed the judgment.

In an unpublished Memorandum issued last week, the Ninth Circuit Court of Appeals affirmed the district court’s determination that TRPA’s failure to explain or discuss its selected baseline was arbitrary and capricious, but vacated the district court’s alternative holding that the selected baseline was contrary to the Compact. (League to Save Lake Tahoe v. Tahoe Reg’l Planning Agency, 2012 U.S. App. LEXIS 4089 (9th Cir. 2012).) The court remanded to the district court with direction that TRPA “shall retain discretion on remand to determine the best way to explain and evaluate the impact of the proposed project and its choice of an appropriate baseline.” In other words, TRPA will be required to re-evaluate the previous baseline and explain why such baseline is appropriate. Until then, TRPA is not issuing permits for any new boating facilities.

Key Points

This decision suggests that under TRPA’s environmental regulations, TRPA must justify the environmental baseline it uses even where it uses a baseline that is consistent with the existing environmental conditions in the Tahoe Basin. Under CEQA, a lead agency is not required to justify its decision to use the existing environmental conditions as the baseline, even where existing conditions include prior illegal activity. In Citizens for East Shore Parks v. State Lands Com. (2011) 202 Cal.App.4th 549, the First Appellate District in California recently reiterated that prior illegal development is properly included as part of the CEQA environmental baseline because “[h]ow present conditions come to exist… is irrelevant to CEQA baseline determinations—even if it means preexisting development will escape environmental review under CEQA.” (Id. at p. 559.)

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 Reiterates that Laches is Strongly Disfavored in Environmental Cases

Tuesday, March 6th, 2012

In Save the Peaks Coalition v. United States Forest Service (9th Cir. 2012) 2012 U.S. App. LEXIS 2563, the Ninth Circuit Court of Appeals determined that, although Save the Peaks Coalition (“SPC”) abused the judicial process by holding back claims that should have been asserted in an earlier litigation, laches did not bar SPC from bringing a challenge under the National Environmental Policy Act (“NEPA”) because the United States Forest Service (“USFS”) failed to demonstrate that it suffered prejudice. However, the Court found that the USFS complied with NEPA, thus upholding the lower court’s decision to grant USFS’s motion for summary judgment.

In a prior lawsuit, a different petitioner – utilizing the same attorney as SPC – brought a similar complaint challenging USFS’s approval of the use of man-made snow from Class A+ reclaimed water at a ski area in the San Francisco Peaks. In light of the prior case, the District Court found that laches barred SPC’s action. SPC timely appealed, first claiming that the lower court erred in finding that laches barred its claims, and second that the USFS violated NEPA because: 1) USFS’s final environmental impact statement (FEIS) did not thoroughly discuss the significant environmental consequences of making snow from reclaimed water; 2) USFS failed to ensure scientific integrity of its analysis; and, 3) USFS did not disseminate quality information.

Laches apply when there is clear evidence that (1) the plaintiff lacked diligence in pursuing its claims, and (2) the defendant experienced prejudice as a result. To determine whether a plaintiff lacks diligence, a court must consider several factors, such as whether the plaintiff communicated its position to the defendant, the nature of the defendant’s response, and the length of delay. Here, the Court found that SPC lacked diligence. However, the Court held that USFS failed to show it experienced prejudice as a result of SPC’s delay. Specifically, USFS had not started construction before the suit was filed, and no irreversible harm was done. Because USFS did not show prejudice, the Court ruled that the lower court erred in barring SPC’s claims by laches. In reaching its holding, the Court explained that courts strongly discourage the use of laches as a defense in environmental cases. Environmental damages affect more than just the plaintiff, and use of laches to defeat a challenge typically would conflict with the purpose behind Congressional environmental policies.

Turning to SPC’s NEPA claims, the Court used a rule of reason standard to determine whether USFS took a “hard look” at the environmental consequences of making snow with reclaimed water, as required by NEPA. In rejecting SPC’s arguments, the Court found that the USFS’s FEIS discussed the significant probable environmental impacts and was replete with careful considerations of the risks its decision posed. The lengthy discussion in the FEIS, along with USFS’s responses to comments, compelled the Court to rule that the USFS did in fact take the requisite “hard look” at the environmental impacts and human risks of making snow with reclaimed water. The Court also rejected SPC’s argument that USFS failed to ensure scientific integrity pursuant to NEPA by considering the conclusions of the Arizona Department of Environmental Quality (ADEQ). The Court dispelled this argument by showing that the USFS’s careful consideration of the risks made little reference to the ADEQ analysis. SPC’s last argument concerning the dissemination of quality information was abandoned due to failure to respond to USFS’s summary judgment motion on the issue.

Key Points: 

As demonstrated in Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, where privity between parties can be established res judicata may bar the subsequent litigation making it unnecessary to establish laches.

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.

Court Awards Agency’s Costs of Preparing Administrative Record Despite Petitioner Electing to Prepare the Record

Tuesday, March 6th, 2012

In an unpublished decision, Landwatch San Luis Obispo v. Cambria Community Serv. Dist., 2d Civil No. B229545 (2012), the Court upheld a trial court’s cost award of $14,615.41 to the Cambria Community Service District for time spent preparing the administrative record.  The District initially sought almost $24,000.  In reaching the amount awarded, the trial court denied the majority of the costs claimed for work performed by the District’s general manager, its engineer and its attorney in preparing the transcript and granted the full amount of costs sought for work performed by the District’s clerk and three administrative assistants.

Petitioner appealed arguing that no costs should have been awarded because it elected to prepare the administrative record and the District never informed the Petitioner how much it would cost to prepare the transcripts for the administrative record.   The Court acknowledged that the Petitioner requested the District provide it with a cost estimate to prepare the transcripts.  However, the Court concluded that nothing in CEQA requires the public agency to provide a cost estimate for preparing the record.  The Court also rejected Petitioner’s claim that the costs were not reasonable and necessary.  The Court instead deferred to the trial court’s determination of reasonableness.

Written By: Tina Thomas and Chris Butcher

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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 Res Judicata Bars NEPA and ESA Challenges to Guidelines Adopted by State Department

Tuesday, February 21st, 2012

In Turtle Island Restoration Network v. U.S. Dept. of States (9th Cir. 2012) 2012 U.S.LEXIS 3263, the Ninth Circuit Court determined that res judicata barred Turtle Island Restoration Network (“TIRN”) from bringing a challenge under the National Environmental Policy Act (“NEPA”) and Endangered Species Act (“ESA”) because an organization for which TIRN was formally a member, the Earth Island Institute (“EII”), should have raised the NEPA challenge during a prior lawsuit. In the prior lawsuit, EII did not bring any NEPA challenge; EII instead alleged that the guidelines adopted by the United States Department of State (“State Department”) were inconsistent with law. In the new litigation, TIRN argued that the State Department failed to comply with NEPA and ESA in approving the guidelines.

Res judicata only applies where there is (1) an identity of claims, (2) a final judgment on the merits, and (3) privity between parties. In this case, the only disputed issue was whether there was “an identity of claims.” A court must consider four factors in answering this question: (1) whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action; (2) whether substantially the same evidence is presented in the two actions; (3) whether the two suits involve infringement of the same right; and (4) whether the two suits arise out of the same transactional nucleus of facts. The Court focused on the fourth question. The Court found that EII and TIRN could have conveniently brought claims for NEPA and ESA violations when it filed its prior complaint. The Court stated that a party’s decision not to advance NEPA and ESA claims in an asserted effort to resolve the issues without litigation is not an excuse for failing to raise the claims during prior litigation. The Court acknowledged that the two actions may be procedurally different, but reiterated that both arise from the government’s regulation of shrimp imports to encourage foreign turtle-safe shrimp harvesting. Therefore, the Court held that the two suits arose out of the same transactional nucleus of facts. Res judicata barred the NEPA and ESA challenges that TIRN could have brought in its prior complaint.

Key Points:

Res judicata may bar a petitioner from bringing NEPA and ESA challenges based on an agency’s alleged pattern and practice of violating the Acts if the petitioner could have asserted these challenges in prior litigation.

Written By: Tina Thomas and Chris Butcher

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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.

Applying the Fair Argument Test, Court holds that Construction of a Large Single-Family Home was Not Exempt from CEQA Because the Unusual Circumstances Exception Applied

Tuesday, February 21st, 2012

In Berkeley Hillside Preservation v. City of Berkeley (2012) 203 Cal. App. 4th 656, the Berkeley Zoning Adjustment Board (Board) determined that a new roughly 10,000 square foot home in the Berkeley hills was categorically exempt from CEQA pursuant to (1) the Infill Development Exemption and (2) the New Construction / Conversion of a Small Structure Exemption. The Board also determined that none of the exceptions to the CEQA exemptions applied.

Petitioners filed an administrative appeal. During the administrative appeal, the city received a number of comment letters including two letters from a geotechnical engineer with over 50 years of experience concluding that the slope of the property, the need for massive grading, and the proximity to the Hayward fault established that the project would have very significant effects on the environment both during and after construction. Another geotechnical engineer disagreed with the above conclusions, and after allowing testimony from both engineers during the appeal hearing, the city council affirmed the decision to approve the use permits to construct the home. Thereafter, petitioners filed a petition for writ of mandate challenging the city’s approval of the use permits.

On appeal from the trial court ruling upholding the city’s actions, petitioners conceded that the project is subject to the two CEQA categorical exemptions asserted by the city. Petitioners argued, however, that the “unusual circumstances” exception to the exemptions applied and prevented the city from relying on the exemptions. The court agreed, holding that “a categorical exemption does not apply where there is any reasonable possibility that proposed activity may have a significant effect on the environment.” The “unusual circumstances” exception can apply to a project that is not unusual; the existence of substantial evidence supporting a fair argument that a project normally exempt from CEQA may result in a significant environmental impact is itself an “unusual circumstance” prohibiting use of a categorical exemption. Nevertheless, the court stated that it may be helpful to first analyze whether the project is unusual in considering whether the “unusual circumstances” exception applies to a project.

Relying on the “fair argument” test, the court concluded that the administrative record included substantial evidence supporting a fair argument that the project is both unusual and would result in significant environmental impacts. With respect to the project’s unusual nature, the court explained that petitioners demonstrated that the home would be one of the largest in the entire city. As a matter of law, the 10,000-square-foot home was unusual “because the circumstances of the project differ from the general circumstances of projects covered by the single-family residence exemption…” Next, the court found a reasonable possibility that the proposed construction will have a significant effect on the environment due to the unusual size to the project. Although the court acknowledged that a disagreement existed between geotechnical engineers, the court held that “contrary evidence is not adequate to support a decision to dispense with an EIR.” (Original emphasis.) The court, therefore, reversed the trial court’s judgment and ordered the lower court to issue a writ of mandate directing the city to prepare an EIR.

Key Points:

For a lead agency to rely on a categorical exemption in the face of opposition, the lead agency must determine that evidence in the record does not support a “fair argument” that the project may result in one or more significant environmental impacts. If such evidence can be found in the record, then the “unusual circumstances” exception applies and use of a CEQA exemption is improper. This case represents a shift from previous case law requiring a showing of substantial evidence to support an argument that unusual circumstances exist.
Additionally, in holding that the project’s “proximity to a fault” was evidence of an unusual circumstance, the opinion is inconsistent with Ballona Wetlands Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455. In Ballona Wetlands, the Court held that CEQA requires consideration of a project’s impacts on the environment and not consideration of the environment’s impact on a project (e.g. such as sea level rise or fault impacts on a project). Moreover, if “proximity to a fault” disqualifies a project from relying on CEQA exemptions, like the in-fill exemption, then most of the Bay Area will, as a practical matter, be unable to rely on CEQA exemptions for any projects.

Written By: Tina Thomas and Chris Butcher

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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 Upholds EIR for a Wind Energy Project Despite the Conceptual Nature of the Project Description

Tuesday, February 21st, 2012

In an unpublished decision, Bedford v. Santa Barbara County, 2012 Cal.App.Unpub.LEXIS 886, the Second Appellate District upheld a trial court’s ruling denying a petition challenging the adequacy of an environmental impact report for a wind farm project in Santa Barbara County. First, the Court upheld the trial court’s determination that the Petitioners failed to exhaust their administrative remedies relating to the adequacy of the environmental baseline and propriety of deferring certain mitigation measures. The Court explained that objections must be sufficiently specific so that the lead agency has an opportunity to evaluate and respond to them. Here, Petitioners failed to meet this burden.

Second, the Court rejected Petitioners’ challenges to the project description concluding that while the project description was conceptual, it was sufficient for the purposes of CEQA review. In reaching its holding, the Court stated that “[i]t is true the precise location of the [wind turbine generators] is unknown. But the EIR’s analysis of visual impacts is based on the maximum potential impact that the project could have. In fact, it analyzes the maximum visual impact from [] public places…” The Court also rejected Petitioners’ argument that the project description must disclose the exact type of turbines the project would use. The Court found that by disclosing the maximum height and noise allowed, the project description was not required to disclose the type of generator that would be utilized.

Third, the Court held that the four alternatives included in the EIR constituted a reasonable range of alternatives and that the EIR was not required to analyze alternatives to components of the Project. The Court also explained that the EIR properly rejected certain alternative sites as infeasible “based on sound objective criteria such as the time necessary to develop alternative sites, and the inability of alternative configurations of the WTGs on the proposed site to generate sufficient electricity.”

Fourth, the Court found the noise analysis was supported by substantial evidence because it was based on the worst case scenario. Therefore, while exact noise levels are not known, the EIR properly evaluated the potential for the project to result in significant noise impacts.

Finally, the Court rejected Petitioners’ challenges relating to the Project’s consistency with local land use policies because the policies either were not mandatory or that mitigation included in the EIR ensured compliance.

Key Points:

CEQA requires that an EIR is commenced early in the planning process. Therefore, complete and final project details are not always known during preparation of an EIR. Here, the Court held that because the project description and impact analyses in an EIR for a wind energy project provided sufficient detail to consider the worst case scenario, the EIR complied with CEQA.

Written By: Tina Thomas and Chris Butcher

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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.