CEQA Alert: Extensive Proposed Revisions to CEQA Guidelines Released for Public Comment

On August 11, 2015, the Governor’s Office of Planning and Research (“OPR”) released a preliminary discussion draft of comprehensive revisions to the CEQA Guidelines (“Discussion Draft”).   

Revisions to the CEQA Guidelines are usually piecemeal, and made in response to either specific legislation amending the CEQA statute or court decisions interpreting CEQA. However, in 2013, OPR broadly solicited suggestions from stakeholders as to what changes to the CEQA Guidelines should be made. The Discussion Draft resulted from this process.

The Discussion Draft proposes revisions to 25 aspects of CEQA, broken down into three categories:  “Efficiency Improvements” (seven revisions), “Substance Improvements” (two revisions), and “Technical Improvements” (16 revisions). However, the fact that only two of the proposed revisions fall under the heading of “Substance Improvements” is somewhat misleading, as virtually all of the “Efficiency Improvements” would also substantively alter the Guidelines, with ramifications for both the environmental review process and post-review CEQA litigation. These substantive changes address a number of areas, including:

• adoption and application of thresholds of significance;
• determinations as to whether an activity is within the scope of a program EIR;
• the contents of Guidelines Appendix G (Initial Study Environmental Checklist);
• the consequences of a court decision finding a violation of CEQA;
• analysis of energy impacts;
• analysis of water supply impacts;
• selection of the baseline conditions for impacts analysis;
• deferral of mitigation; and
• response to comments on a draft EIR.

While some of the proposed revisions merely attempt to harmonize the Guidelines with recent case law and legislative acts, other revisions go well beyond such considerations and will likely be controversial. Moreover, OPR has posed a number of questions for stakeholders in the Discussion Draft, which could lead to additional proposed revisions.

The Preliminary Draft is available here. Comments on the Draft Guidelines must be submitted to OPR by October 12, 2015.

- Don Sobelman and Kathryn Oehlschlager

For more information, contact Don Sobelman at (415) 228-5456 or des@bcltlaw.com, or Kathryn Oehlschlager at (415) 228-5458 or klo@bcltlaw.com.

CEQA Alert: CA Supreme Court Clarifies Duties of State Agencies in Funding Off-Site Mitigation

On August 3, the California Supreme Court released its second CEQA decision of 2015, addressing a key issue for state agencies undertaking projects that require off-site environmental mitigation. In City of San Diego v. Board of Trustees of the California State University (SC Case No. S199557) (“City of San Diego”), the Court clarified that a state agency may not reject as infeasible off-site mitigation via fair-share payment solely due to the lack of appropriations earmarked for that purpose by the State Legislature. In doing so, it affirmed the Court of Appeal’s decision directing the Board of Trustees of the California State University (“CSU Board”) to vacate its certification of an EIR for a major expansion of the San Diego State University (“SDSU”).

In 2007, the CSU Board prepared an environmental impact report and campus master plan revision (“EIR”) proposing several major construction projects on the SDSU campus (“the project”). The EIR identified significant cumulative traffic impacts at several off-campus locations in San Diego, and it estimated the project’s average “fair share” contribution to mitigate the increased congestion at 12 percent. However, the CSU Board stated that it could not commit to paying that fair share, because it was not certain whether the California Legislature would appropriate funding specifically for that purpose. For this reason, the CSU Board found that mitigation of the traffic impacts via fair-share payment was infeasible, and that the traffic impacts were therefore significant and unavoidable. The CSU Board certified the EIR based on a statement of overriding considerations.

In a unanimous opinion penned by Justice Werdegar, the Supreme Court revisited the Court’s decision in another case involving the CSU Board’s approval of a campus expansion project, City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341 (“Marina”). In Marina, which was also authored by Justice Werdegar, the Court held that the CSU Board’s duty to mitigate impacts extended beyond the boundaries of the campus, and that if it could not adequately mitigate those impacts by performing acts on the campus, “then to pay a third party . . . to perform the necessary acts off campus may well represent a feasible alternative.” However, the Court also noted that “[ ] a state agency’s power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” 

In the instant case, the CSU Board relied on the italicized language above in determining that the uncertainty of earmarked appropriations by the Legislature rendered mitigation by fair-share payment infeasible. The Supreme Court held that, in doing so, the CSU Board had erroneously interpreted Marina, for a number of reasons:

1. The italicized language is “dictum” that appeared in a paragraph in the decision that “imagines possible limitations on our holding that the Board shared with other agencies the responsibility to mitigate the off-site environmental effects of its project.”
2. The Marina dictum “is simply an overstatement,” as a public agency “has access to all of its discretionary powers and not just the power to spend appropriations.” Moreover, in the case of CSU, the agency has some discretion over use of general support appropriations for capital projects and has access to non-state funds.
3. Neither CEQA nor any other decision interpreting the statute suggests that mitigation costs for a project funded by the Legislature cannot be included in the project’s budget and paid for with funds appropriated for the project.
4. No provision of CEQA “conditions the duty of a state agency to mitigate its projects’ environmental effects on the Legislature’s grant of an earmarked appropriation.” Moreover, the Legislature has expressly subjected the CSU Board’s decisions on campus master plans to CEQA, including the requirement for mitigation of environmental impacts.
5. CEQA draws no distinction between on-site and off-site environmental impacts. Public agencies are required to mitigate or avoid significant effects of a project on the “environment,” which is defined as “the physical conditions which exist within the area which will be affected by a proposed project.” If on-site mitigation measures can be funded through the project budget without an earmarked appropriation (as the CSU Board had determined in the EIR), “then so too can off-site mitigation measures.”

In addition, the Court noted that “unreasonable consequences” would follow from the CSU Board’s interpretation of Marina, and CEQA’s “fundamental statutory directive” would be impaired. Finally, the Court rejected three new arguments presented by the CSU Board, finding that Education Code sections 67504 and 66202.5 and Government Code section 13332.15 did not support the Board’s determination.

Overall, the City of San Diego decision provides welcome clarity on an important and recurring issue of CEQA interpretation that the Court itself had created with the Marina decision.

-- Don Sobelman

For more information, contact Don Sobelman at (415) 228-5456 or des@bcltlaw.com.

CEQA Alert UPDATE: Petitions for Review Filed in Greenhouse Gas and ICCTA Preemption Cases

As previously reported, two decisions by California’s Fourth Appellate District in late 2014 highlighted CEQA compliance challenges facing local governments charged with implementing state and local greenhouse gas emissions reduction mandates.

Update: Petitions for review with the California Supreme Court were subsequently filed in both cases. On March 11, 2015, the California Supreme Court granted the petition for review filed by the San Diego Association of Governments and the San Diego Association of Governments Board of Directors in Cleveland National Forest Foundation v. San Diego Association of Governments. The issue to be briefed and argued is limited to the following question: Must the environmental impact report for a regional transportation plan include an analysis of the plan's consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? A petition for review in Sierra Club v. County of San Diego is pending, with the time allotted for the Supreme Court to grant or deny review extended until April 3, 2015.

We also previously reported on the Surface Transportation Board’s (STB’s) December 12, 2014 decision in which it found that the Interstate Commerce Commission Termination Act categorically preempts CEQA with respect to the 114-mile passenger rail line that the Authority is constructing between Fresno and Bakersfield as part of its High-Speed Train System.

Update:  On December 29 and December 30, 2014, two petitions for reconsideration of the STB’s December 12, 2014 decision were submitted to the STB - one by a California resident and the other by a group that included Kern and King Counties, the City of Shafter, and several organizations. The STB has not yet ruled on those petitions.

On February 9, 2015, two separate petitions for review of the STB’s December 12, 2014 decision were filed in the Ninth Circuit and D.C. Circuit Courts of Appeal. The D.C. Circuit challenge was filed by the California nonprofit corporation, Dignity Health, one of the parties that filed the December 29, 2014 petition for reconsideration with the STB. The Ninth Circuit challenge was filed by a subset of the other parties to the December 29, 2014 petition for review, including Kings County, Kern County, and several nonprofit corporations. The STB filed motions to dismiss for lack of jurisdiction in both of the federal court actions in early March. The STB argued that the federal courts lack jurisdiction because the STB’s decision is not a final order as it has not yet ruled on the petitions for reconsideration filed at the administrative level.

-- Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at des@bcltlaw.com or (415) 228-5445, or Nicole Martin at nmm@bcltlaw.com or (415) 228-5435.

CEQA Alert: California Supreme Court Issues Long-Awaited Guidance on the “Unusual Circumstances” Exception to CEQA’s Categorical Exemptions

In its March 2 decision in Berkeley Hillside Preservation v. City of Berkeley (SC Case No. S201116), the California Supreme Court provides critical guidance to CEQA lead agencies and practitioners regarding the proper application of the so-called “unusual circumstances” exception to CEQA’s categorical exemptions. This issue had previously generated a large number of Court of Appeal decisions over the course of several decades, resulting in a conflicting and confusing body of law. The Supreme Court’s decision finally puts the issue to rest.

The case involved a challenge to the City of Berkeley’s approval of a permit application to build a 6,478-square-foot house and 3,394-square-foot, 10-car garage. In approving the application, the City relied on two of CEQA’s categorical exemptions: (1) A “Class 3” Categorical Exemption, which includes “construction and location of limited numbers of new, small facilities or structures,” including “[o]ne single-family residence, or a second dwelling unit in a residential zone” (14 Cal. Code Regs. § 15303); and (2) “Class 32” which “consists of projects characterized as in-fill development” meeting certain requirements specified in the Guidelines (14 Cal. Code Regs. § 15332). The City also determined that the “unusual circumstances exception” in CEQA Guidelines Section 15300.2(c) did not apply. That exception provides that “[a] categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.”

The Court of Appeal for the First Appellate District disagreed and invalidated the City’s approval. In making this ruling, the Court held that the fact that a proposed activity may have a significant effect on the environment is, in and of itself, an “unusual circumstance” within the meaning of Section 15300.2(c), such that the lead agency may not rely on a categorical exemption for that activity. The Court of Appeal further determined that the standard of review applicable to the determination of whether the “unusual circumstances exception” applies is whether the record contains substantial evidence of a fair argument that the proposed project may have a significant impact on the environment.

The California Supreme Court disagreed with the Court of Appeal on both counts. The Court held that a potentially significant effect is not enough on its own to trigger the “unusual circumstances exception”:

In listing a class of projects as exempt, the Secretary has determined that the environmental changes typically associated with projects in that class are not significant effects within the meaning of CEQA, even though an argument might be made that they are potentially significant. The plain language of Guidelines section 15300.2, subdivision (c), requires that a potentially significant effect must be “due to unusual circumstances” for the exception to apply. The requirement of unusual circumstances recognizes and gives effect to the Secretary’s general finding that projects in the exempt class typically do not have significant impacts.

Furthermore, the Court held that a party challenging a lead agency’s determination that a categorical exemption applies bears the burden of producing evidence supporting the applicability of the “unusual circumstances exception.” Although the Court notes that “to establish the unusual circumstances exception, it is not enough for a challenger merely to provide substantial evidence that the project may have a significant effect on the environment,” it also concludes that “evidence that the project will have a significant effect does tend to prove that some circumstance of the project is unusual” (emphasis in original).

According to the Supreme Court, an “unusual circumstance,” within the meaning of Section 15300.2(c), may be established “without evidence of an environmental effect, by showing that the project has some feature that distinguishes it from others in the exempt class, such as its size or location. In such a case, to render the exception applicable, the party need only show a reasonable possibility of a significant effect due to that unusual circumstance.” Alternatively, an “unusual circumstance” may be established “with evidence that the project will have a significant environmental effect. That evidence, if convincing, necessarily also establishes ‘a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.’”

With respect to the standard of review, the Court held that Public Resources Code Section 21168.5 applies, such that reversal of the City’s permitting action is appropriate only if (a) the City, in finding the proposed project categorically exempt, did not proceed in a manner required by law, or (b) substantial evidence fails to support that finding. Specifically, the Court adopted the following bifurcated approach to the standard of review:

The determination as to whether there are “unusual circumstances” [ ] is reviewed under section 21168.5’s substantial evidence prong. However, an agency’s finding as to whether unusual circumstances give rise to “a reasonable possibility that the activity will have a significant effect on the environment” [ ] is reviewed to determine whether the agency, in applying the fair argument standard, “proceeded in [the] manner required by law.”
…
Accordingly, when there are “unusual circumstances,” it is appropriate for agencies to apply the fair argument standard in determining whether “there is a reasonable possibility of a significant effect on the environment due to unusual circumstances.” (Guidelines, §15300.2, subd. (c).)  As to this question, the reviewing court’s function “is to determine whether substantial evidence support[s] the agency’s conclusion as to whether the prescribed ‘fair argument’ could be made.”

The Court remanded to the Court of Appeal to apply the principles summarized above and provided the following additional guidance:  (1) a lead agency has the discretion to consider conditions in the vicinity or particular neighborhood of the proposed project when evaluating whether environmental effects are “unusual or typical”; and (2) a finding of environmental impacts must be based on the proposed project as actually approved and not based on unapproved activities that opponents assert will be necessary because the project, as proposed, cannot be built.

Justice Chin wrote the majority opinion, in which Justices Cantil-Sakauye, Corrigan, Baxter (retired, sitting by assignment), and Boren (sitting by assignment) concurred. Justice Liu penned a concurring opinion, joined by Justice Werdegar, that essentially rejected the majority’s view regarding the proper application of the “unusual circumstances exception.”

-- Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at des@bcltlaw.com or (415) 228-5456, or Nicole Martin at nmm@bcltlaw.com, or (415) 228-5435.

CEQA Update: Three New Court of Appeal Decisions Issued; Key Supreme Court Rulings Expected (and the Sacramento Kings are on a Roll)

2015 is shaping up to be another active year for CEQA judicial review. After taking an extended holiday break, the Courts of Appeal have recently published three decisions, two of which reinforce existing case law on how to set the baseline for CEQA impacts analysis, and a third which clears the way for a new Sacramento Kings arena. In addition, the California Supreme Court is expected to issue rulings in several key CEQA cases.

Center for Biological Diversity v. Department of Fish and Wildlife (February 10, 2015, 3d DCA Case Nos. C072486, C072790, and C073011) involved three challenges to the California Department of Fish and Wildlife’s (Department) adoption of a program EIR for its fish hatchery and stocking enterprise, which has been in operation since the late 1800s. Two of the challenges focused on alleged CEQA violations. The program EIR evaluated three alternatives: (1) continue the existing enterprise without change (“no project alternative”); (2) continue the enterprise with mitigation measures (the “preferred alternative”); and (3) operate the enterprise with certain limitations. The EIR used the then existing, ongoing operations (specifically, those between 2004 and 2008) as the environmental baseline for its environmental impacts analysis. The Department ultimately selected the second alternative, certified the EIR, and adopted a statement of overriding considerations.

The Court of Appeal rejected all of petitioners’ CEQA claims. It held that the EIR contained a sufficient level of analysis for a program EIR and did not impermissibly defer formulation of mitigation measures. The Court also held that the Department’s baseline was correct because, under CEQA, the baseline for a continuing project is the current environmental condition including the project, even if the project has not undergone prior environmental review and even if the current condition includes unauthorized and even environmentally harmful conditions. For this reason, the EIR also appropriately identified the continuation of the ongoing operation as the “no project alternative.” (Note that although the court found no CEQA violations, it ruled that the Department did violate the Administrative Procedure Act (APA) because certain mitigation actually constituted “underground regulation” adopted without complying with the APA’s notice and hearing requirements.)

CREED-21 v. City of San Diego (filed January 29, 2015, Certified for Publication February 18, 2015, 4th DCA Case No. D064186) addressed another CEQA baseline issue. The case involved an emergency storm drainage repair project on a steep hillside in La Jolla and the subsequent revegetation of the site. The City completed the emergency repair pursuant to CEQA’s statutory exemption for “emergency repairs to publicly or privately owned service facilities necessary to maintain service essential to the public health, safety or welfare” (Pub. Res. Code Section 15269(b)). The emergency permit issued by the City included a condition that, within 60 days, the City’s engineering department would apply for a regular coastal permit for the already completed emergency work. Consistent with this permit condition, and following completion of the emergency repair work, the City filed an application for a coastal development permit and site development permit, which included a revegetation/restoration planting plan for the site. The City described the “project” as including the already completed emergency repair work along with the proposed revegetation plan. The City issued a Notice of Exemption for this “project” pursuant to CEQA Guidelines Section 15061(b)(3) for activities “where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment”-- the so-called “common sense” CEQA exemption.

The Court of Appeal agreed with the City’s conclusion that the proper environmental baseline for review of the revegetation project consisted of the site conditions as they existed following completion of the emergency storm repair work, not before. The court concluded that the emergency repair work “was, in effect, an intervening and superseding event that changed the physical environment without any requirement for CEQA review of that work for a significant effect on the environment.” Therefore -- and apparently notwithstanding  the City’s description of the “project” in its Notice of Exemption -- “after the 2010 emergency work was completed, the only activity to be performed, or the ‘project’ for purposes of CEQA, was the implementation of the revegetation plan. Therefore, the CEQA baseline for the revegetation project must be set after the 2010 emergency work was completed and any qualification for a CEQA exemption and/or significant environmental effect of that project must be considered based on the postemergency work physical environmental of the site.” The court also concluded that substantial evidence supported the City’s determination that the “common sense” exemption applied to the revegetation project because the plan “indisputably would improve the site’s physical conditions compared to its 2011 physical conditions” and therefore, “would not result in any adverse change in its physical conditions.”

Finally, in Saltonstall et al. v. City of Sacramento (February 18, 2015, 3d DCA Case No. C077772), the proposed Sacramento Kings basketball arena cleared another hurdle when the Third Appellate District upheld the EIR for the new downtown entertainment and sports center. The court rejected all of appellants’ CEQA claims, including claims that the EIR failed to (1) consider remodeling the existing Sleep Train Arena as a feasible alternative to building the new arena, (2) adequately evaluate the effects of the project on interstate traffic on Interstate Highway 5 (I-5), and (3) account for safety issues associated with large crowds expected to congregate outside the arena during events. Of greatest note, the court rejected the claim that the City improperly “approved” the project prior to completing its CEQA review when it took certain preliminary steps, including exercising its eminent domain power to acquire property for the arena and entering into a preliminary, nonbinding term sheet allowing negotiation with a private investor group, which provided that the City retained the discretion to mitigate adverse environmental effects and reject the project entirely.

These three decisions will likely be followed by a significant number of other Court of Appeal decisions this year. In addition, we expect the California Supreme Court to issue decisions in several key cases, including the following:

• In Friends of Eel River v. North Coast Railroad Authority (Northwestern Pacific Railroad Company) (SC Case No. S222472), the Court will consider whether the Interstate Commerce Commission Termination Act (ICCTA) preempts CEQA in the context of a state agency’s actions with respect to a state-owned and funded rail line, and whether the ICCTA preempts a state agency’s voluntary commitment to comply with CEQA as a condition of receiving state funds related to such a project.
• Berkeley Hillside Preservation v. City of Berkeley (SC Case No. S201116) will consider the proper procedure and standard of review applicable to the “unusual circumstances exception" to CEQA’s categorical exemptions, found in 14 CCR § 15300.2(c).
• In Center for Biological Diversity v. Department of Fish & Wildlife (SC Case No. S217763), the Court will consider issues relating to the California Endangered Species Act in the context of CEQA, whether judicial review is limited to the claims presented to an agency prior to the close of the comment period for a draft EIR, and the proper baseline for evaluation of impacts relating to a project’s greenhouse gas emissions.
• Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist. (SC Case No. S214061) will address the standard of review applicable to a lead agency’s decision to prepare a subsequent EIR, Negative Declaration, or addendum.
• The Court’s long-awaited decision in California Building Industry Assn. v. Bay Area Air Quality Management Dist. (SC Case No. S213478) will address under what circumstances CEQA requires an analysis of how existing environmental conditions will impact future residents or users of a proposed project.
• Finally, City of San Diego v. Trustees of the California State University (SC Case No. S199557) will address requirements relating to certain types of “fair-share” payments proposed by a state agency as mitigation for off-site impacts.  

All in all, it should be a very interesting year.

-- Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at (415) 228-5456 or des@bcltlaw.com, or Nicole Martin at (415) 228-5435 or nmm@bcltlaw.com.

Surface Transportation Board Rules That ICCTA Preempts CEQA Review of California’s High-Speed Train System

On December 12, 2014, the Surface Transportation Board (STB) issued a decision, in response to a petition filed by the California High-Speed Rail Authority (Authority), finding that the Interstate Commerce Commission Termination Act (ICCTA) categorically preempts CEQA with respect to the 114-mile passenger rail line that the Authority is constructing between Fresno and Bakersfield (the “Line”) as part of its High-Speed Train (HST) System. This broadly worded decision should effectively preclude CEQA challenges to all lines that will be constructed as part of the HST System.

By the time the Authority filed its October 9, 2014 petition with the STB, the STB had asserted jurisdiction, completed environmental review under the National Environmental Policy Act, and authorized construction of the Line. The Authority had also voluntarily completed an environmental review of the Line pursuant to CEQA, while reserving its right to argue that CEQA is preempted with regard to the Line. Seven lawsuits were subsequently filed, challenging the adequacy of the Authority’s CEQA review and seeking injunctive relief that would delay, if not prevent altogether, construction of the Line. The Authority’s October 9, 2014 petition focused on the preemptive effect of Section 10501(b) of the ICCTA with respect to the injunctive relief sought in those CEQA lawsuits. Section 10501(b) provides:

The jurisdiction of the [STB] over -

(1) transportation by rail carriers, and the remedies provided in this part with respect to rates, classifications, rules (including car service, interchange, and other operating rules), practices, routes, services, and facilities of such carriers; and

(2) the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State,

is exclusive. Except as otherwise provided in this part, the remedies provided under this part [49 U.S.C. § 10101 et seq.] with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.

49 U.S.C. § 10501(b).

Finding it difficult, as a practical matter, to separate the injunctive relief available in a CEQA lawsuit from other relief that could be granted by a state court in such litigation, the STB decided more broadly that CEQA was categorically preempted by Section 10501(b) with respect to the Line. Drawing on principles enunciated in prior STB opinions, as well as federal and state court decisions -- including the First Appellate District’s decision in Friends of the Eel River v. North Coast Rail Authority et al., which is now under review by the California Supreme Court -- the STB determined that CEQA was preempted for three reasons.

1. “CEQA is a state preclearance requirement that, by its very nature, could be used to deny or significantly delay an entity’s right to construct a line that the [STB] has specifically authorized, thus impinging upon the [STB’s] exclusive jurisdiction over rail transportation.”
2. “Because environmental review under CEQA attempts to regulate where, how, and under what conditions the Authority may construct the Line, the application of CEQA here would constitute an attempt by a state to regulate a matter directly regulated by the [STB].”
3. As the Friends of the Eel River court also determined, “the market participation doctrine does not apply in the context of a CEQA enforcement suit for a railroad project under [the STB’s] jurisdiction.” Accordingly, the Third Appellate District, in its recent decision addressing preemption of CEQA with regard to the HST System, Town of Atherton v. California High-Speed Rail Authority, “incorrectly applied [the doctrine] to bar federal preemption of CEQA.”

The STB’s decision will likely be a key focus of the briefing in Friends of the Eel River before the California Supreme Court, which granted review on the following issues: (1) Does the ICCTA preempt the application of CEQA to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine?; and (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state-owned rail line and/or leasing state-owned property? 

 

If the Supreme Court affirms the Friends of the Eel River decision and applies the broad preemption framework set forth by the STB, CEQA review of major rail projects in California (and the resulting CEQA litigation) will be significantly curtailed, if not eliminated, giving rail operators more freedom to construct new rail lines, rail yards, and other rail facilities in California that serve markets both within the state and across the country.

UPDATE - March 13, 2015: On December 29 and December 30, 2014, two petitions for reconsideration of the STB’s December 12, 2014 decision were submitted to the STB - one by a California resident and the other by a group that included Kern and King Counties, the City of Shafter, and several organizations. The STB has not yet ruled on those petitions.

On February 9, 2015, two separate petitions for review of the STB’s December 12, 2014 decision were filed in the Ninth Circuit and D.C. Circuit Courts of Appeal. The D.C. Circuit challenge was filed by the California nonprofit corporation, Dignity Health, one of the parties that filed the December 29, 2014 petition for reconsideration with the STB. The Ninth Circuit challenge was filed by a subset of the other parties to the December 29, 2014 petition for review, including Kings County, Kern County, and several nonprofit corporations. The STB filed motions to dismiss for lack of jurisdiction in both of the federal court actions in early March. The STB argued that the federal courts lack jurisdiction because the STB’s decision is not a final order as it has not yet ruled on the petitions for reconsideration filed at the administrative level.
 

--Don Sobelman and Nicole Martin

 

For more information, contact Don Sobelman at des@bcltlaw.com or (415) 228-5456, or Nicole Maritn at nmm@bcltlaw.com or (415) 228-5435.

CEQA Alert: Court of Appeal Rules Against San Diego Agencies in Two Separate CEQA Challenges Involving Greenhouse Gas Emissions Reduction Planning Documents

Two recent decisions by California’s Fourth Appellate District highlight the CEQA compliance challenges facing local governments charged with implementing state and local greenhouse gas (GHG) emissions reduction mandates.

Cleveland National Forest Foundation et al. v. San Diego Association of Governments et al.  (November 24, 2014, 4th DCA Case No. D063288) involved a challenge to the program Environmental Impact Report (EIR) prepared by the San Diego Association of Governments (SANDAG) for its 2050 Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS). The Sustainable Communities and Climate Protection Act of 2008 (SB 375) requires Metropolitan Planning Organizations such as SANDAG to prepare “sustainable communities strategies” as part of their transportation plans, outlining how the region will meet GHG emissions reduction targets established by the California Air Resources Board. SANDAG’s RTP/SCS was the first sustainable communities strategy adopted in the state pursuant to SB 375.

Two of the three justices on the appellate panel concluded that the EIR for the RTP/SCS was deficient in every way alleged by the petitioners challenging the document – including with respect to a number of issues that the trial court did not even address. Most importantly, the justices held that the EIR’s failure to analyze the inconsistency between the RTP/SCS and Executive Order S-3-05 – the precursor to the California Global Warming Solutions Act of 2006 (AB 32) and SB 375 – rendered the EIR inadequate as an informational document under CEQA. Specifically, although Executive Order S-3-05 called for a continuing decrease in the state’s greenhouse gas emissions after 2020, the RTP/SCS acknowledges that implementation of the plan would result in increased regional emissions after 2020.

SANDAG argued that the EIR’s greenhouse gas emissions analysis complied with CEQA because the agency utilized the significance thresholds specified in CEQA Guidelines section 15064.4(b) to evaluate those impacts. Section 15064.4(b) provides: “A lead agency should consider the following factors, among others, when assessing the significance of impacts from greenhouse gas emissions on the environment: (1) The extent to which the project may increase or reduce greenhouse gas emissions as compared to the existing environmental setting; (2) Whether the project emissions exceed a threshold of significance that the lead agency determines applies to the project [; and] (3) The extent to which the project complies with regulations or requirements adopted to implement a statewide, regional, or local plan for the reduction or mitigation of greenhouse gas emissions. Such requirements must be adopted by the relevant public agency through a public review process and must reduce or mitigate the project’s incremental contribution of greenhouse gas emissions. If there is substantial evidence that the possible effects of a particular project are still cumulatively considerable notwithstanding compliance with the adopted regulations or requirements, an EIR must be prepared for the project.”

According to the Court, although a lead agency generally has discretion to select which significance thresholds it will utilize to evaluate impacts under CEQA, its reliance on the significance thresholds specifically identified in Section 15064.4(b) for GHG emissions impact analysis may not be enough. In this case, the Court determined that SANDAG was obligated to consider the consistency of the RTP/SCS with Executive Order S-3-05 as part of its impact analysis, despite the absence of any such requirement in the Guidelines. “Consequently, the use of the Guideline’s thresholds does not necessarily equate to compliance with CEQA, particularly where, as here, the failure to consider the transportation plan’s consistency with the state climate policy of ongoing emissions reductions reflected in the Executive Order frustrates the state climate policy and renders the EIR fundamentally misleading.”

The Court also held that the EIR was deficient because it omitted discussion of feasible mitigation measures that could substantially lessen the RTP/SCS’s significant GHG impacts, and because it did not include any alternative that could significantly reduce total vehicle miles traveled.

Justice Benke penned a strong dissent, which asserts that the decision reflects an improper intrusion into the discretion of lead agencies trying to implement the requirements of SB 375: “This insinuation of judicial power into the environmental planning process and usurping of legislative prerogative is breathtaking.” 

If this decision stands, lead agencies across the state will face significant uncertainty as to the proper analysis of GHG emissions under CEQA – which is exactly the uncertainty that Guidelines section 15064.4 was intended to resolve.

A second case, Sierra Club v. County of San Diego (Filed October 29, 2014; Certified for Publication November 25, 2014; 4th DCA Case No. D064243), arose from the County’s attempt to implement a mitigation measure adopted as part of its 2011 general plan update. The program EIR adopted for that update included “Climate Change Mitigation Measure CC-1.2,” which required the County to prepare a “climate action plan” (CAP) that would include detailed GHG emissions reduction targets and deadlines and “comprehensive and enforceable GHG emissions reductions measures that [would] achieve” specified GHG reductions by 2020. In 2012, the County adopted a CAP along with guidelines for determining the significance of GHG emissions (“CAP and Thresholds” project). The County prepared an addendum to the program EIR regarding the CAP and Thresholds project and then adopted the project with no further environmental review. The Sierra Club filed suit, alleging that the CAP did not meet the requirements of Mitigation Measure CC-1.2 and that an EIR should have been prepared for the CAP and Thresholds project.

The Court of Appeal held that the County violated CEQA when it approved the CAP and Thresholds project because: (i) the CAP failed to comply with the requirements of Mitigation Measure CC-1-2, as it did not include enforceable GHG emissions reductions requirements and contained no detailed deadlines for reducing GHG emissions; (ii) the County failed to make requisite findings regarding the environmental  impacts of the CAP and Thresholds project and made the erroneous assumption that the project was the same as the project analyzed in the 2011 program EIR; (iii) the County failed to incorporate mitigation measures in the CAP, which is a plan-level document under CEQA that requires such measures; and (iv) substantial evidence supported a fair argument that the County should have prepared an EIR for the CAP and Thresholds project.

These two appellate decisions illustrate how attempts by local government to address GHG emissions in the CEQA context face significant hurdles, as the legal framework continues to evolve.

UPDATE - March 13, 2015: On March 11, 2015, the California Supreme Court granted the petition for review filed by the San Diego Association of Governments and the San Diego Association of Governments Board of Directors in Cleveland National Forest Foundation v. San Diego Association of Governments. The issue to be briefed and argued is limited to the following question: Must the environmental impact report for a regional transportation plan include an analysis of the plan's consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?

A petition for review in Sierra Club v. County of San Diego is pending, with the time allotted for the Supreme Court to grant or deny review extended until April 3, 2015.

--Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at des@bcltlaw.com, or (415) 228-5456, or Nicole Martin at nmm@bcltlaw.com, or (415) 228-5435.

Environmental Groups Seek to Derail Bakersfield Crude-by-Rail Project

A coalition of environmental groups has filed a lawsuit challenging Kern County’s approval of the first substantial oil-by-rail expansion project at a California refinery, alleging that the comprehensive Environmental Impact Report (EIR) prepared for the project is inadequate under the California Environmental Quality Act (CEQA). This appears to be the next front in the ongoing battle over crude-by-rail, as refineries across California seek to expand rail transportation in order to improve access to new crude oil sources in the United States and Canada.

In addition to allowing rail delivery of oil at Alon USA Energy’s Bakersfield refinery, the project will expand capacity and allow upgrades to several units at the refinery to enable processing of light crude, including output from Texas and North Dakota's Bakken shale, as well as equipment to offload undiluted Canadian bitumen. The facility has been shuttered since 2008.

The Kern County Board of Supervisors approved the project at a September 9 hearing over the objections of environmental groups and some members of the community, who—despite the County’s preparation of thousands of pages of environmental documentation—claimed the CEQA analysis for the project was inadequate. While project opponents raised concerns about the safety of transporting oil by rail and potential air impacts of the project, other residents, unions, and economic development leaders support the project and expressed their satisfaction with planned safety measures.

In their suit challenging the project, a coalition of environmental groups, including the Sierra Club, the Center for Biological Diversity, and the Association of Irritated Residents, claim that the EIR for the project failed to adequately analyze and mitigate the project’s adverse environmental impacts. Specifically, they allege that the EIR employed an improper baseline, failed to sufficiently describe the proposed project, and failed to fully analyze and mitigate a wide variety of impacts associated with oil storage and processing.

The challenge to the Alon project follows an April 2014 lawsuit, also relying on CEQA, where environmental groups sought to block the shipment of oil by rail to a Kinder Morgan facility in Richmond, California. That lawsuit was later dismissed as untimely.

The challenge to the Alon project, Association of Irritated Residents et al. v. Kern County Board of Supervisors, is pending in Kern County Superior Court (Case No. S-1500-CV-283166).

--Kathryn Oehlschlager and Chris Jensen

For more information, contact Kathryn Oehlschlager at (415) 228-5458 or klo@bcltlaw.com, or Chris Jensen at (415) 228-5411 or cdj@bcltlaw.com

CEQA Alert: CEQA Does Not Apply to Approval of Proposed Railroad Operations – Express Preemption by ICCTA

California’s First Appellate District has held that federal law preempts CEQA’s application to the approval of proposed railroad operations. Although this was an issue of first impression for a California appellate court, the decision adopts the reasoning of a uniform line of decisions by federal courts and the Surface Transportation Board (STB) holding that the Interstate Commerce Commission Termination Act (ICCTA) broadly preempts state statutes requiring environmental review as a condition of railroad operations.

 

The decision in Friends of Eel River v. North Coast Railroad Authority et al. (September 29, 2014; 1st DCA Case No. A139222) arose from two separate actions challenging the reopening of rail service from Willits, in Mendocino County, to Lombard, in Napa County. The government agency charged with maintaining rail service on that line, the North Coast Railroad Authority (NCRA), initially prepared and certified an EIR, but later – following a legal challenge – passed a resolution rescinding certification of the EIR. NCRA explained that it had “mistakenly, but in good faith, believe[d] that it needed to complete” an EIR for resumed rail operations, but had since determined that the ICCTA expressly preempted application of CEQA to the project.
 

The Court of Appeal focused on the “expansive language” of ICCTA’s “broadly worded express preemption provision,” which gives the STB exclusive jurisdiction over transportation by rail carriers and the construction, acquisition, and operation of railroad tracks and facilities, even if located entirely in one state. The court found “persuasive and fully applicable to the case before us” a uniform line of federal court and STB cases concluding that state statutes requiring environmental review as a condition to railroad operations are preempted by the ICCTA.   
 

Although petitioners pursued several lines of attack to defeat the preemption argument, the court rejected all of them. Most importantly, the court ruled that the market participation doctrine – which precludes preemption where the state acts in a “proprietary” role as a market participant, rather than as a regulator – did not apply. According to the court, “[t]he aspect of CEQA that allows a citizen’s group to challenge the adequacy of an EIR when CEQA compliance is required is clearly regulatory in nature, as a lawsuit against a governmental entity cannot be viewed as part of its proprietary action, even if the lawsuit challenges that proprietary action.” The court acknowledged that the Third Appellate District reached a contrary conclusion concerning the market participation doctrine in another recent CEQA decision, but disagreed with that court’s analysis of the issue.
 

The court also rejected petitioners’ other arguments, holding that: 

1. An agreement between NCRA and Caltrans that governed the process for obtaining state funding and included an environmental review provision did not obligate NCRA to complete an EIR.  Moreover, as non-parties to that agreement, petitioners had no standing to assert such a claim. 
2. NCRA’s agreement to comply with CEQA with respect to certain work – which was contained in a consent decree reached in separate litigation – did not confer a contractual obligation on NCRA to prepare an EIR for the reopening of the rail line. And even if it did, petitioners, as nonparties to that consent decree, lacked standing to sue.
3. Petitioners’ Tenth Amendment, judicial estoppel, and collateral estoppel arguments were without merit.

The decision is available here.

 

UPDATE: On December 10, 2014, the California Supreme Court granted the petition for review filed by plaintiffs and appellants Friends of Eel River and Californians for Alternatives to Toxics. 

--Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at des@bcltlaw.com, (415) 228-5456, or Nicole Martin at nmm@bcltlaw.com, (415) 228-5435.

CEQA Alert: The End of Level of Service (“LOS”) Analysis? OPR Proposes New Guidelines for Evaluating Transportation Impacts

On August 6, 2014, the Governor’s Office of Planning and Research (OPR) released its preliminary recommendations for changing how transportation impacts are analyzed under CEQA: Updating Transportation Impacts Analysis in the CEQA Guidelines, Preliminary Discussion Draft of Updates to the CEQA Guidelines Implementing Senate Bill 743 (Steinberg, 2013).

Currently, the most common metric used in evaluating a project’s transportation impacts is “level of service” (LOS), which measures the delay that vehicles experience at intersections and on roadway segments. According to OPR, focusing on a project’s impact on LOS provides an incomplete assessment of potential impacts and often results in unintended consequences, including the imposition of mitigation measures – such as increased roadway capacity – that may actually exacerbate poor traffic conditions over the long term. The LOS metric can also create additional hurdles for infill development projects, because adding vehicles to an already congested urban environment increases the likelihood of a finding that the project’s impacts are potentially significant, thereby triggering the need for an environmental impact report (EIR). 

SB 743, signed into law on September 27, 2013 and codified at Public Resources Code Section 21099, created a process for revising the CEQA Guidelines for transportation impact analysis. SB 743 requires OPR to establish new criteria for determining the significance of transportation impacts of projects located within “transit priority areas,” which are areas located within one-half mile of an existing or proposed major transit stop. The criteria must “promote the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses.” Following adoption of the new criteria, automobile delay, as described solely by LOS or similar measures of vehicular capacity or traffic congestion, will not be considered a significant impact under CEQA for such projects, except in locations specifically identified in the Guidelines. Although this mandate focuses on projects in “transit priority areas,” SB 743 provides that OPR may adopt guidelines establishing alternative metrics for evaluating transportation impacts outside of transit priority areas as well. As discussed below, OPR has proposed to do just that. 

OPR’s Preliminary Discussion Draft responds to SB 743 by proposing a new Guidelines section, Section 15064.3, focused on evaluating the significance of transportation impacts and developing alternatives and mitigation measures related to those impacts. The proposed Section 15064.3 identifies “vehicle miles traveled” – the distance of automobile travel associated with a project – as the principal metric for evaluating a project’s transportation impacts, and it explicitly states that a project’s effect on automobile delay will no longer constitute a significant environmental impact under CEQA. It also provides additional guidance with respect to evaluating transportation impacts associated with various types of land use and transportation projects. Finally, it identifies several factors that a lead agency may consider in evaluating transportation-related impacts on local safety, including those relating to bicyclists and pedestrians, queuing on freeway off-ramps, speed differentials between adjacent travel lanes, and increased motor vehicle speeds.

OPR proposes a phased approach to the implementation of the new Guidelines. Once filed with the Secretary of State, the proposed changes would immediately apply (prospectively) to the analysis of projects located within one-half mile of major transit stops or high-quality transit corridors.  For other areas, a lead agency may choose to be governed by the new provisions if it updates its CEQA procedures to conform to the provisions of the new Section 15064.3. After January 1, 2016, the new section would apply statewide.

Comments and suggestions on the draft are due to OPR by November 21, 2014 at 5:00 p.m. OPR expects that the preliminary discussion draft will “undergo significant revisions in response to public input.” The preliminary discussion draft and instructions for submitting comments and suggestions are available here.

--Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at des@bcltlaw.com, (415) 228-5456, or Nicole Martin at nmm@bcltlaw.com, (415) 228-5435.

CEQA Alert: California Supreme Court Holds No CEQA Review is Required for Adoption of Voter-Sponsored Initiatives

On August 7, the California Supreme Court filled the last gap in the interpretation of CEQA in the context of land use initiatives. Previously, the courts had determined that (1) CEQA compliance is required for land use initiatives proposed by a city council, prior to placing the initiative on the ballot, but (2) CEQA compliance is not required for land use initiatives proposed by voters and adopted at an election.

In Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County, et al., the Court addressed a final permutation: must a city council comply with CEQA before adopting a voter-sponsored land use initiative? The answer is “no.”

At the heart of the dispute was the proposed expansion of a Wal-Mart store in the City of Sonora into a “Supercenter.” The City initially prepared and circulated for public review a draft environmental impact report (EIR) for the proposed expansion project pursuant to CEQA. Prior to the City Council’s vote on the EIR, it was served with a notice of intent to circulate a petition called the “Wal-Mart Initiative,” proposing an ordinance adopting a specific plan for the expansion, aimed at streamlining project approvals. Over 20% of the City’s registered voters signed the petition. The City Council then postponed the vote on the EIR and ordered preparation of a report, pursuant to California Elections Code § 9212, to evaluate the initiative’s consistency with previous planning commission approvals for the proposed expansion. After considering the report, the City Council adopted the ordinance.

The Tuolumne Jobs & Small Business Alliance challenged the City’s adoption of the ordinance for failure to conduct environmental review pursuant to CEQA. On demurrer by the City, Wal-Mart, and the initiative’s proponent, the trial court dismissed petitioner’s claims without leave to amend. However, the court of appeal ruled that CEQA review must be completed whenever a city council chooses to adopt a land use ordinance proposed by voter initiative, rather than submit it to a special election. The Supreme Court disagreed and reversed.

The Court based its decision on an interpretation of the Election Code that took into account the need for judicial deference to the constitutional power of initiative that is reserved to the people of California. When a local legislative body receives a municipal ordinance initiative that has been signed by at least 15% of the city’s registered voters, such as the Wal-Mart Initiative, it must do one of the following: (a) adopt the ordinance, without alteration, within 10 days after the certification of the petition is presented to the legislative body; (b) immediately order a special election where the ordinance, without alteration, will be presented to the voters of the city; or (c) order a report pursuant to Section 9212, which may consider the proposed ordinance’s effects on land use, infrastructure, and “[a]ny other matters the legislative body requests.” Within 10 days of receiving the report, which must be produced within 30 days of certification of the petition, the legislative body must either adopt the ordinance or order a special election pursuant to subsection (b). Cal. Elec. Code §§ 9212, 9214.

The Court considered it “well established” that CEQA compliance is not required when a local initiative is submitted to voters pursuant to Section 9214(b). Tuolumne Jobs extends the rule to voter initiatives directly adopted by the local legislative body under Section 9214(a). The Court recognized that, as a matter of statutory interpretation, requiring CEQA review prior to direct adoption would be inconsistent with, and would effectively nullify, the mandatory deadlines provided by the applicable Election Code provisions, and there was no evidence that the Legislature intended CEQA to supersede these provisions.

Moreover, even if CEQA review could theoretically be completed within these deadlines, the legislative body would be powerless to reject, or require alterations to, a proposed project, given the constraints of Section 9214. According to the Court, requiring CEQA review prior to the direct adoption of voter initiatives would run counter to legislative intent. Finally, the Court held that public policy did not dictate a different outcome.

A link to the decision can be found here.

By Don Sobelman and Nicole Martin

For more information, contact Don Sobelman at (415) 228-5456 or des@bcltlaw.com, or Nicole Martin at (415) 228-5435 or nmm@bcltlaw.com.

CEQA Alert: Court of Appeal Blunts Latest CEQA Attack on California’s High-Speed Train System

On July 24, 2014, California’s Third Appellate District affirmed a trial court’s ruling that the California High-Speed Rail Authority’s (Authority’s) revised final program environmental impact report/environmental impact statement (PEIR/EIS) for the proposed California high-speed train (HST) system generally complied with CEQA, with the exception of a flawed traffic impact analysis.

The appellate decision arose from two separate challenges below. The “Atherton I” petitioners had secured a partial victory in their challenge to the Authority’s revised final PEIR, which was the product of a successful challenge to the “original” final PEIR: the trial court ruled that the revised final PEIR failed to adequately address the traffic impacts of narrowing and moving Monterey Highway to accommodate the Pacheco Pass alignment for the HST.
 

However, the trial court rejected the Atherton I petitioners’ other CEQA challenges, holding that it was proper for the Authority to defer analysis of certain vertical profile alignment impacts—relating to the elevation of track above ground level—until a later project-specific EIR. The court also held that petitioners’ challenge to information contained in the project description that was based on an allegedly flawed revenue and ridership model reflected a “classic disagreement among experts that often occurs in the CEQA context” and did not provide a basis for invalidating the PEIR.

 

With respect to the challenge brought by the “Atherton II” petitioners, the trial court found that the Authority’s alternatives analysis complied with CEQA and there was no abuse of discretion in its failure to consider alternatives submitted by petitioners’ expert consultant.

 

Due to the deficiencies in the traffic analysis with respect to the Monterey Highway impacts, the trial court denied the Authority’s motion for discharge of the writ in the underlying challenge to the original PEIR and issued a supplemental peremptory writ ordering the Authority to rescind and set aside the resolution certifying the revised final PEIR. The Atherton I and Atherton II petitioners then collectively appealed in light of their partial victory below.

 

On appeal, petitioners alleged that the Authority’s revised final PEIR violated CEQA because:

1. it provided an inadequate analysis of the “vertical profile options for alignment” along portions of the San Francisco Peninsula;
2. it used a flawed revenue and ridership model that improperly skewed the results in favor of the Pacheco Pass alternative for connecting the Central Valley to the San Francisco Bay Area, rather than the Altamont Pass alternative further to the north; and 
3. the range of alternatives analyzed was inadequate. 

As a preliminary matter, the court of appeal rejected the Authority’s argument that CEQA was preempted in this case by the Interstate Commerce Commission Termination Act (ICCTA).  The court held that application of the “market participation doctrine,” which generally distinguishes between a state’s role as regulator versus its role as a market participant, defeated the preemption claim.

 

On the merits of the CEQA claims, the court of appeal upheld the Authority’s use of a program EIR, deferring site-specific analysis of the vertical alignment of the HSP in the Belmont-San Carlos-Redwood City portion of the project area to a later project-level EIR. The fact that the project-specific analysis of an aerial viaduct for that portion of the route was proceeding concurrently with revisions to the PEIR did not necessitate inclusion of that project-specific discussion in the programmatic document. 

 

With respect to the allegedly flawed revenue and ridership model, the court held that the challenge amounted to a classic CEQA “battle of the experts” and, because substantial evidence supported the methodology of the Authority’s consultant, the PEIR could not be found deficient on that basis.

Finally, the court held that the Authority analyzed an adequate range of alternatives and was not required to evaluate additional alternatives proposed by petitioners, based on one of the following findings:

1. the claim was barred by collateral estoppel;
2. the alternative was substantially similar to one of those evaluated in the revised final PEIR;
3. the alternative would continue to be studied at the project level; or
4. the Authority’s infeasibility findings were supported by substantial evidence.

This will probably not be the last of the CEQA challenges facing the HST. A petition for review by the Supreme Court is likely. Also, because the court of appeal affirmed the trial court’s issuance of a supplemental peremptory writ and ordered the Authority to set aside its approval of the revised final PEIR to correct deficient traffic analyses, additional challenges may follow issuance of a (further) revised final PEIR with respect to that issue. Finally, any project-level EIRs prepared for the HST may also face CEQA challenges.

 

--Don Sobelman and Nicole Martin

 

For more information, contact Don Sobelman at (415) 228-5456 or des@bcltlaw.com; or Nicole Martin at (415) 228-5435 or nmm@bcltlaw.com.

CEQA Alert: Court of Appeal Rules that EIR Must Analyze Correlation Between Project’s Incremental Impact on Air Quality and Impact on Human Health

In Sierra Club v. County of Fresno (opinion filed 5/27/14; link below), California’s Fifth Appellate District held that the County violated the California Environmental Quality Act (CEQA) by failing to adequately analyze, disclose, and mitigate air quality impacts associated with the 942-acre Friant Ranch master planned community in north-central Fresno County. In part, the court held that the County’s Environmental Impact Report (EIR) was inadequate because it failed to analyze and disclose the impact that the project’s air emissions would have on human health.

Previously, in Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184 (2004), the same court held that the potential human health impacts associated with a project’s air emissions must be identified and analyzed in an EIR. According to the Sierra Club decision, in order to satisfy this mandate, an EIR must include an analysis of the correlation between a project’s adverse air quality impacts and the human health impacts specifically attributable to those project-related impacts. The County’s EIR listed the types of air pollutants that the project would generate, quantified those emissions, and included a general description of how each pollutant at issue affects human health. However, the EIR did not specifically analyze the impact on human health resulting from the change in air quality due to the project’s air emissions. The court held this analysis inadequate, but left it to the County’s discretion to select the proper methodology for correlating air emissions with human health impacts.

The Sierra Club court also held that several of the mitigation measures aimed at mitigating the Friant Ranch project’s air quality impacts were deficient because they were vague and unenforceable, conclusory in terms of the expected efficacy of the measures, and/or constituted impermissible deferred mitigation.

The court rejected petitioners’ other CEQA-based challenge, relating to the EIR’s discussion of the project’s wastewater impacts. The court concluded that the EIR adequately disclosed information relating to the amount of wastewater that was expected to be generated by the project and how that wastewater would be disposed of and/or recycled. The court also rejected petitioners’ claim that the project violated California’s Planning and Zoning Law due to alleged inconsistencies with the County’s General Plan policies.

-- Don Sobelman and Nicole Martin

The Sierra Club v. County of Fresno decision is available here.

For more information, contact Donald Sobelman at des@bcltlaw.com, (415) 228-5456, or Nicole Martin at nmm@bcltlaw.com, (415) 228-5435.

CEQA Alert: Court of Appeal Addresses Inadequate Blight/Urban Decay Mitigation and Energy Impact Analyses

In California Clean Energy Committee v. City of Woodland (opinion filed 2/28/14; partial publication ordered 4/1/14), the Third Appellate District ruled that the City of Woodland violated the California Environmental Quality Act  (CEQA) when it approved a “super-regional retail center” by relying on inadequate measures to mitigate urban decay effects, rejecting a mixed-use alternative without adequate support for its infeasibility finding, and failing to adequately analyze the energy impacts of the project.

The project at issue proposed annexation of 154 acres of farmland to the City of Woodland and re-zoning of that land from “agricultural” to “general commercial” as part of the development of a regional commercial center that would include over 800,000 square feet of retail space, 100,000 square feet of office space, three hotels, four restaurants, and an 80,000 square foot auto mall. 

In approving a scaled-down version of this “super-regional retail center” project, the City concluded that the project would result in physical deterioration and urban decay of retail centers in other parts of the City, including the City’s downtown area.  The City adopted mitigation measures to address these effects, including:

1. requiring the developer to prepare market studies and urban decay analyses for future site-specific projects,
2. requiring the developer to contribute funds to develop a “retail strategic plan and implementation strategy” for the City’s downtown area, and 
3. requiring the City to coordinate with the owner of a local mall that would be impacted by the development, to develop a “strategic land use plan” for the mall. 

The Court of Appeal ruled that these mitigation measures were inadequate because they were too speculative and/or did not commit the City to any actual mitigation to reduce the urban decay effects associated with the project.  

The Court also held that the City violated CEQA by rejecting a mixed-use alternative to the project on the ground that it was environmentally inferior to the proposed project, where the administrative record contained no evidence to support this conclusion—the Draft and Final EIRs had both rejected the mixed use alternative on the basis of economic infeasibility rather than environmental inferiority. 

Finally, the Court held that the City violated CEQA by failing to adequately analyze the energy impacts of the proposed project—specifically, the City failed to adequately analyze transportation, construction and operational energy impacts and failed to consider renewable energy options for the project. 

-- Don Sobelman and Nicole Martin

For more information, contact Donald Sobelman at (415) 228-5456, des@bcltlaw.com, or Nicole Martin at nmm@bcltlaw.com, (415) 228-5435.