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Posts Tagged ‘GHG’


GHG Guidance Document Containing Threshold of Significance Required to Undergo CEQA Review

Friday, September 28th, 2018

In Golden Door Properties, LLC v. County of San Diego (2018) Cal.App.5th 892, the Fourth District Court of Appeal held San Diego County’s (County) adoption of a guidance document for the evaluation of greenhouse gas (GHG) emissions established a threshold of significance for determining impacts. The County violated CEQA where it adopted the guidance document without first conducting CEQA review, sidestepped required public review and violated the Court’s prior writ.

The County adopted a Climate Action Plan (CAP) in 2012 and related guidelines in 2013. Following successful petitions from the Sierra Club, the County was directed by both the trial court and appellate court to set aside the documents for failing to make required findings and failing to adequately detail deadlines and enforceable measures, amongst other things. In 2016, the County adopted the “2016 Climate Change Analysis Guidance Recommended Content and Format for Climate Change Analysis Reports in Support of CEQA Document” (Guidance Document). Golden Door Properties, LLC and Sierra Club brought suit challenging the adoption.

The trial court consolidated the two suits, granted a writ of mandate and injunction against the County, and entered judgment prohibiting the County from using the Guidance Document. The trial court concluded (1) the claims were ripe; (2) the Guidance Document creates a threshold of significance under CEQA; (3) the Guidance Document violates the County’s general plan mitigation measures; and (4) the Guidance Document is not supported by substantial evidence. The County timely appealed.

The Appellate Court first addressed the ripeness of this action. Ripeness is “primarily bottomed on the recognition that judicial decision-making is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy.” However, the Court continued, the issues here are ripe where the Guidance Document provided a generally applicable threshold of significance and there is sufficient public interest in the matter, citing California Building Industry Assn. v. Bay Area Air Quality Management District (2016) 2 Cal.App.5th 1067. The ultimate analysis of ripeness, the Court quoted, is “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.”

The Court then turned to the CEQA arguments. The Court concluded that the Guidance Document is a threshold of significance. CEQA Guidelines section 15064.7 defines a threshold of significance as “an identifiable, quantitative, qualitative or performance level of a particular environmental effect, non-compliance with which means the effect will normally be determined to be significant by the agency and compliance with which means the effect normally will be determined to be less than significant.” The Court found that the Guidance Document provided a “recognized and recommended” efficiency metric for determining significance of GHG emissions, and therefore was a threshold of significance for the purposes of CEQA.

The Court then held that a threshold of significance for general use (as opposed to a project-specific threshold) is subject to CEQA public adoption guidelines, per Save Cuyama Valley v. County of Santa Barbara (2013) 213 Cal.App.4th 1059. The County conceded that the Guidance Document was not formally adopted through a public review process. Thus, the County violated the CEQA requirement that a threshold of significance be adopted “by ordinance, resolution, rule or regulation, and [be] developed through a public review process,” as mandated by CEQA Guidelines section 15064.7.

Further, the Court held, the County failed to provide substantial evidence to support its recommendations in the Guidance Document. Specifically, the County “reli[ed] on statewide data without evidence supporting its relationships to countywide [GHG] reductions.” This approach was legally flawed under the principles set forth in Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204. The County failed to address why using the statewide data that did not specifically address the County was appropriate for the County and also failed to account for variations in different types of development.

Finally, the Court held that the County’s adoption of the threshold of significance in advance of its required Climate Action Plan (CAP) constituted improper “piecemealing [of] environmental regulations” in violation of CEQA. The County argued that development of a CAP and thresholds of significance were proceeding in compliance with the schedule established in the writ issued after the Court’s prior decision in Sierra Club, and the Guidance Document therefore did not violate that decision.  However, the Court concluded that its earlier decision treated the CAP and thresholds of significance as a single CEQA project and required completion of the CAP prior to the adoption of the thresholds. Considering this, the Court held the County’s 2016 adoption of the Guidance Document was improper piecemealing.

For these reasons, the Court affirmed the trial court’s holding.

Key Point:

A document that provides a threshold of significance is required to undergo CEQA review.

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

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.

Fifth District Court of Appeal Examines EIR Sufficiency, Kern County Oil Refinery Project Upheld and Reversed in Part

Thursday, February 8th, 2018

In Association of Irritated Residents v. Kern County Bd. of Supervisors (2017) 17 Cal.App.5th 708, the Fifth District Court of Appeal reversed the trial court’s decision upholding the County of Kern’s certification of an environmental impact report (EIR) and approval of a project to modify an oil refinery in Bakersfield, including the expansion of the existing rail, transfer and storage facilities, so it can unload two unit trains (104 cars) of crude oil per day, equating to 150,000 barrels.

On appeal, Plaintiffs Association of Irritated Residents argued that the EIR failed to comply with CEQA because it (1) erroneously used the refinery’s operational volume from 2007 as the baseline instead of the conditions existing in 2013 when the notice of preparation of the EIR was published; (2) incorrectly relied upon the refinery’s participation in California’s cap-and-trade program to conclude the project’s greenhouse gas emissions (GHG) would be less than significant; and (3) underestimated and failed to fully describe the project’s rail transport impacts, including the risk of a rail accident causing a release of hazardous materials and the environmental impacts of off-site rail activity. The court rejected Plaintiffs’ first two arguments but found in favor of Plaintiffs on their final argument.

With respect to Plaintiffs’ first argument, that the EIR used an improper environmental baseline for refinery operations, the court held that the decision to use refinery operation data from 2007 was supported by substantial evidence including the refinery’s history of fluctuating operations and was consistent with the Supreme Court’s holding in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310.  In reaching its holding, the court distinguished Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 because it concerned use of a “future” baseline and not a lead agency’s discretion in measuring an existing conditions baseline. In other words, the appellate court held that the unique burden the Supreme Court imposed on agencies using projected future conditions as a baseline—identification of substantial evidence that using an existing conditions baseline would be uninformative or misleading—does not apply in “historical baseline” cases.

As to Plaintiffs’ second argument, the EIR stated the project’s GHG emissions were less than significant because (1) the project is consistent with CARB’s climate change scoping plan and the cap-and-trade program and (2) GHG reductions achieved under cap-and-trade, federal renewable fuels standard, and displacement of fuel transport trucks exceed the 29 percent greenhouse gas emissions reductions target recommended by the Air District. Plaintiffs argued that the EIR’s conclusion was erroneous because compliance with California’s cap-and-trade regulation will not actually reduce greenhouse gas emissions since allowances are authorizations to emit greenhouse gases.  In rejecting Plaintiffs’ second argument, the court held that California’s cap-and-trade program constituted “regulations … adopted to implement a statewide … plan for the reduction of mitigation of greenhouse gas emissions” pursuant to CEQA Guidelines section 15064.4, subdivision (b)(3). Accordingly, the court stated that a lead agency has the discretion to conclude that a project’s GHG emissions will have a less than significant effect on the environment based on the project’s compliance with the cap-and-trade program. Thus, the court concluded the EIR’s GHG analysis complied with CEQA.

Finally, the court concluded that the EIR’s rail transport impact analysis included two flaws. First, in an unpublished section of the opinion, the court held the analysis included factual errors in its description of federal railroad safety data because it erroneously used the total number of “accident/incidents” reported for a 10-year period as the number of “train accidents.”  As a result of this error, the court concluded that the EIR understated the risk of release of hazardous materials in the event of accident during the rail transportation of crude oil to the refinery by fivefold.  Next, in a published portion of the opinion, the court also held that the EIR erroneously concluded that the Interstate Commerce Commission Termination Act of 1995 (ICCTA; 49 U.S.C. § 10101 et seq.) preempted CEQA review of certain environmental impacts of off-site rail activities. While the court acknowledged that the ICCTA may preempt some mitigation measures that may otherwise be required by CEQA, the ICCTA did not preclude the EIR from evaluating and disclosing reasonably foreseeable environmental effects that may be caused by the off-site rail activities associated with the project and addressing the feasibility of possible mitigation measures.  As a result of these errors, the appellate court directed the trial court to enter a new order granting the petition for writ of mandate.

Key Point:

While environmental baseline and GHG emission significance determinations are subject to some degree of deference, factual errors and misapplication of ICCTA preemption principles can be fatal to a finding of an EIR’s legal sufficiency and may open project leaders to valid writs of mandate.

CARB Regulatory Advisory “Project Approval” Triggers CEQA Review Despite Agency Certified Regulatory Program, Public Testimony Must Be Adequately Addressed to Meet Cal APA Standards

Wednesday, January 31st, 2018

In John R. Lawson Rock & Oil, Inc. v. State Air Resource Board (2018) 20 Cal. App. 5th 77, the Fifth District Court of Appeal found the California Air Resources Board’s (CARB) issuance of a regulatory advisory was “project approval” triggering CEQA review. Doing so prior to completion of environmental review violated CEQA timing requirements. Later, CARB relied on a negative declaration, which the Court also set aside. Further, CARB failed to comply with the California Administrative Procedures Act (CalAPA). As such, the Court directed CARB to comply with CEQA in modifying a set of 2008 regulations known as the Truck and Bus Regulations (Regulations).

CARB issued the Regulations to reduce greenhouse gas emissions from large vehicles by, as pertinent here, requiring vehicle owners to retrofit and upgrade existing vehicles by January 2014. In mid-2013, CARB staff found the global recession substantially reduced trucking activity making compliance with the Regulations financially difficult, especially for those in rural areas and small business settings. CARB responded by delaying reporting deadlines and requesting modification proposals. In November 2013, CARB issued a regulatory advisory stating a handful of modifications to the Regulations would be implemented. Specific changes included: delaying compliance dates, eliminating filter replacement requirements for certain light trucks, and providing a 10-year window where only engines less than 20-years-old would require modernization. After circulating a staff report and proposed modifications in March 2014, CARB issued its final approval in December 2014. Plaintiffs and Respondents filed suit on behalf of fleets that had already incurred significant cost in complying with the unmodified regulations, alleging CARB failed to comply with CEQA and CalAPA requirements.

The Appellate Court found agencies that operate under a certified regulatory program are exempt from certain elements of CEQA review yet still subject to the “functional equivalent” of CEQA environmental review, per the Court’s holding in POET, LLC v. State Air Resources Control Board (2013) 218 Cal.App.4th 681. CARB’s regulatory program requires the preparation of a public staff report at least 45 days before public hearing on a proposed regulation, discussion of environmental alternatives, response to public comment, and compliance with CEQA. Within the regulatory scheme, documents like the CARB staff report are expected to be analyzed and considered before project approval in the same way that CEQA documents are considered.

Applying CEQA principles, the Court determined that project approval triggering CEQA or its equivalent occurred where the regulatory advisory “opened the way” for a project to proceed. CARB conduct following the advisory was “detrimental to further fair environmental analysis.” That the final approval was not to be until 2014 and there was stated CARB authority to change the modifications before that time was insufficient to show the regulatory advisory was not project approval. Language in the advisory that truckers could immediately take advantage of certain programs and the subsequent CARB reliance on the advisory “foreclosed alternatives” to the proposed modifications. Because the advisory was issued before environmental review was complete, CARB failed to comply with CEQA timing requirements.

Next, the Court held the proper baseline for CEQA consideration in this case is the actual environmental conditions at the time of review, not those allowable by the current regulations. As such, CARB acted within its discretion to use a baseline that recognized some trucks and buses were not yet in compliance

Despite this, substantial evidence supported a fair argument that modifications to the Regulations would negatively and significantly impact air quality therefore CARB was incorrect to rely on a negative declaration. CARB failed to address that the modifications, while continuing to decrease emissions in the long term, would increase emissions in the short term. CARB also failed to address the inconsistencies between the proposed project’s emissions and applicable general plans, specific plans, and regional plans.

Notwithstanding these findings, the Court held that the trial court incorrectly directed CARB to prepare an EIR, or its functional equivalent. Such a remedy is only appropriate where the agency no longer has discretion to act in compliance with CEQA. Here, CARB still retained such discretion so the proper remedy is to simply direct CARB to comply with CEQA.

Lastly, CARB failed to comply with CalAPA where it did not adequately address economic impacts to intrastate commerce. While the Court usually gives deference to the agency on determinations of economic impacts, there is no deference for improperly adopted regulations. Here, CARB heard public testimony that relaxing the regulations would impact intrastate competition where those in compliance took on a large expense to be so and others would be able to undercut them. The Court held that testimony, while not written in a formal letter or report, nonetheless put CARB on notice of such issues. While CARB claimed it answered this issue in other comment answers, the Court found that its responses were not supported by any record evidence or meaningful analysis.

Key Point:

A regulatory advisory may be “project approval” triggering CEQA where it forecloses project alternatives therefore environmental review must be complete before its issuance. This standard applies to partially-exempt regulatory bodies and state agencies when their certified regulatory programs are intended to be CEQA-compliant.

City of Sacramento’s Climate Action Plan Strives to Achieve an 83% Reduction in 2005 GHG Emissions Levels by 2050

Monday, February 6th, 2012

On February 14, 2012, the City of Sacramento will hold a hearing to consider approving the City’s Climate Action Plan (CAP). (http://www.sacgp.org/cap.html.) The CAP is split into two phases. Phase 1, which was adopted in February 2010, addresses GHG emissions from internal municipal operations. Phase 2, which will be considered by the City Council for the first time during the February 14 hearing, focuses on communitywide climate change issues within the city limits of Sacramento.

The CAP sets out a goal to achieve a 15% reduction of its 2005 GHG emission levels by the year 2020. The CAP also sets long-term goals which the City is not obligated to achieve, but which the CAP states are nevertheless important to ensure that GHG emission reduction efforts continue beyond 2020. These goals are a 38% reduction of 2005 levels by the year 2030, and an 83% reduction of 2005 levels by 2050.

To achieve the GHG reduction goal of 15% below 2005 levels by 2020, the CAP contains seven strategies. The first strategy is to promote sustainable land use. The goal of this strategy is to decrease vehicle miles traveled (VMT) per capita in new development by 35%, compared to statewide averages. To help achieve this goal, the strategy involves using more compact development patterns, building closer to transit, and locating jobs near housing. Sacramento hopes to build more complete neighborhoods using “green” practices and “green” infrastructure.

The second strategy focuses on mobility and connectivity. This strategy focuses on increasing the availability, efficiency, and appeal of alternative modes of transportation. It has been found that 48% of Sacramento’s GHG emissions come from diesel and gas use by vehicles; therefore, the CAP concludes that it is imperative to discourage personal car use. To help achieve this goal, Sacramento plans to build higher-density and mixed-use neighborhoods, with safe environments and more infrastructure to promote walking and biking. A decrease in personal car use would also decrease congestion on the highways, allowing for more efficient transportation of cargo.

The third strategy focuses on energy efficiency and renewable energy. Energy used in buildings accounts for 39% of total emissions in Sacramento, with 17% from residential buildings and 22% from commercial and industrial buildings. This strategy has a two-part goal. The first is to achieve zero net energy in all new construction by 2030. The second is to achieve an overall 15% reduction in energy usage in all existing buildings by 2020. This requires a fundamental shift in energy usage. Sacramento plans to work with energy providers (like SMUD and PG&E) and encourage them to provide incentives to use less electricity and to educate about the importance of conservation. The city also wants to promote and use renewable energy sources, such as hydro, wind, geothermal, and solar.

The fourth strategy entails waste reduction and recycling. Solid waste generation and disposal account for 5.3% of Sacramento’s GHG emissions. The process of disposing of waste in the landfill creates GHG emissions; the subsequent decomposing of waste in the landfill emits GHG as well. The goal of this strategy is a 75% waste diversion by 2020 and zero waste to landfill by 2040. To achieve this goal, there needs to be more production of sustainable goods, but also people need to consume less, recycle, and reuse. These types of behavioral changes will lead to less waste thus saving energy required for disposal.
The fifth strategy focuses on water conservation and efficiency. Energy used to pump, transport, and treat water creates GHG emissions. The goal is a 20% reduction in per capita water consumption by 2020 with more efficient ways to store and distribute water. This strategy also includes encouraging water conservation.

The last two strategies specifically deal with the need to prepare for climate change. The sixth strategy focuses on creating a “climate change-resilient community,” one that is aware of impending climate change and prepared to handle it. This involves monitoring weather changes, and creating infrastructure improvements so as to better handle extreme weather. The final strategy addresses community involvement and empowerment. The CAP strives to promote citizen action through outreach programs, City acknowledgment of community accomplishments, and cooperative public/private efforts to achieve the mitigation and preparation goals.

The City determined that the CAP constitutes a project pursuant to CEQA because it includes measures that change the physical environment and influence land use and development patterns. However, the CAP builds on the policies outlined in the General Plan and its preparation was called for in Environmental Resources Implementation Program #12 included in the General Plan. The CAP, therefore, concludes that the Master EIR (MEIR) prepared for the 2030 General Plan adequately considered and described the impacts of the Climate Action Plan for the purposes of CEQA.

The City designed the CAP consistent with the requirements of SB 97 in order to permit qualified projects to take advantage of CEQA streamlining for analysis of GHG emission and related impacts for projects that are consistent with the Plan. (See CEQA Guidelines, § 15183.5 [procedure for tiering and streamlining the analysis of greenhouse gas emissions].) Appendix C of the CAP sets forth the actions that new development projects and/or existing developments must comply with to be consistent with the CAP.

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.