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Posts Tagged ‘project descriptions’


Second District Prohibits Preparation of Subsequent EIR Where Project-level EIR Covered All “Reasonably Foreseeable Consequences” of Later Plan-level Project; Spot-Zoned Target Store Permissible Where in Public Interest

Thursday, August 23rd, 2018

In Citizens Coalition Los Angeles v. City of Los Angeles, (2018) 26 Cal. App. 5th 561, the Second District Court of Appeal held that the City of Los Angeles’s (City) reliance on an addendum to a prior project-level EIR prepared for a Target store was legally sufficient environmental review for the approval of a later ordinance amending a specific plan applicable to the area containing the Target store. The City’s reliance on the Target EIR and addendum was permissible where the new ordinance did not present “reasonably foreseeable consequences” beyond those presented in the Target EIR.

The City completed an EIR for a Target store and then later passed an ordinance that amended its neighborhood-based specific plan to create a new subzone for large commercial development, and placed the half-built Target store into that new subzone. In passing the ordinance, the City relied on an addendum to the Target store EIR. Citizens Coalition Los Angeles (Citizens) filed suit.

Citizens alleged that the City’s actions violated CEQA by failing to conduct subsequent environmental review when creating the new subzone. The trial court held that the City violated CEQA for treating the action as a follow-on to its prior, initial approval of the Target store. The City and Real Party in Interest, Target Corporation, timely appealed.

The Appellate Court outlined that, where an EIR has been prepared, Public Resource Code section 21166 provides a supplemental EIR may only be required where new information comes to light or there is a substantial change to the project plans or project circumstances that requires a “major revision” to the EIR. Relying on Friends of College of San Mateo Gardens v. San Mateo County Community College District, (2016) 1 Cal. 5th 937, the Court found that only where one of the exceptions of Public Resources Code section 21166 applies may a new EIR be required. If an EIR “retains any relevance in light of the proposed changes,” then an addendum is proper, not a subsequent EIR.

The Court, relying on CEQA Guidelines section 15162 for direction, asked “[did] the existing CEQA document encapsulate all of the environmentally significant impacts of the project?” Further environmental review was only required if the later action was not a “reasonably foreseeable consequence” of the original project-level EIR. The Court awarded “greater deference to a public agency’s determination … than they [would for] whether initial CEQA review is required.”

The Court clarified that a “reasonably foreseeable consequence” is where “that consequence is, as a practical matter, sufficiently certain to happen.” The Court then outlined five such situations: (1) where an agency has already committed itself to undertake the consequence; (2) where a project presupposes the occurrence of consequence – where a consequence is a necessary and essential component of the project itself; (3) where a consequence is already under environmental review; (4) where an agency subjectively intends or anticipates the consequence; and (5) where an agency creates an incentive that is all but certain to result in a consequence.

Here, the Court found that substantial evidence supported the City’s finding that the sole reasonably foreseeable consequence of the ordinance was the construction of the Target store. Evidence in the administrative record showed that the City had not committed to any other large-scale commercial development on parcels meeting the ordinance criteria.  As such, Public Resources Code section 21166 did not merit subsequent or supplemental EIR as all of the reasonably foreseeable consequences of the ordinance had been addressed in the prior EIR and addendum. The Court further clarified that it did not matter that, though unconventional, the plan-level project relied on a project-level EIR.

Having settled the adequacy of the City’s environmental review, the Court then determined that the ordinance did not constitute impermissible spot zoning because extensive evidence in the record showed that the location of the store was in the public interest. Relying on Foothill Communities Coalition v. County of Orange, (2014) 222 Cal.App.4th 1302, the Court defined an island or spot zoning as where a parcel of land is rezoned to give it fewer or greater rights than parcels around it. In reviewing such claims, the Court’s focus is on if the City’s discretionary action is in the public interest. Only where an island is arbitrary, irrational, or unreasonable will it be impermissible. Here, record evidence showed demonstrated numerous benefits of the store being part of a shopping complex near pedestrian walkways and public transportation. Thus, the City’s action was in the public interest.

The Appellate Court reversed the trial court holding. In a separate holding, the Appellate Court awarded attorneys fees to Citizens’ co-petitioners, La Mirada Neighborhood Association. Read more about that in our blog post “Private Attorney General Doctrine Attorney’s Fees Proper For Party Successful in Invalidating Specific Plan Variances

Note that this case was originally published by the Appellate Court and then depublished by the Supreme Court at the same time that the Supreme Court denied review.

Key Point:

Public Resources Code section 21166 prohibits an agency from preparing a subsequent EIR where a project-level EIR covered all “reasonably foreseeable consequences” of a later plan-level project.

A city’s action to spot zone is evaluated by the court for being in the public interest, with great deference given to the city’s determination.

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.