Archives: December 2013

Court of Appeal Rules City of Berkeley Did Not Need EIR for Downtown Construction Project

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Parker Shattuck Neighbors v. Berkeley City Council (2013) ___ Cal. App. 4th. ___ (Dec. 4, 2013).

In the last published CEQA case of 2013, the First District Court of Appeal upheld the City of Berkeley’s decision not to prepare an EIR for a mixed-use and residential project where petitioners failed to show that the project would have a significant effect on the environment.

The Parker Place Project is a three-parcel mixed-use and residential development that will replace a Honda dealership at the intersection of Parker and Shattuck streets in downtown Berkeley. Three environmental site-assessment reports revealed that the lots had contained underground gasoline storage tanks, as well as volatile organic compounds (VOC) in the soil and water samples. However, VOC levels did not exceed contaminant thresholds established by the San Francisco Regional Water Quality Control Board, and the studies concluded that contamination would not likely require cleanup and at least some chemicals were naturally occurring. All storage tanks underlying the property were removed.

Two years after removal of the last tank, developer CityCentric applied to begin constructing the project. The city council approved it, and petitioner Parker Shattuck Neighbors challenged the approval. The trial court ordered the city to vacate its approval for failure to hold a public hearing after modifying the project. The city conducted a second round of administrative proceedings and ultimately proposed a mitigated negative declaration (MND) after finding that mitigation could reduce any potential environmental impacts to less-than-significant levels. Parker Shattuck sought to set aside approval of the MND and to compel the city to prepare an EIR. The group was primarily concerned that the site’s soil contamination was a significant environmental impact, which the MND failed to adequately mitigate.

A lead agency must prepare an EIR whenever substantial evidence supports a fair argument that a proposed project may have a significant effect on the environment. It is the petitioner’s burden to demonstrate a “fair argument” for environmental harm. The Court of Appeal held that Parker Shattuck failed to identify substantial evidence supporting a fair argument that potential health risks to workers and future residents might constitute a significant environmental impact. It did not consider whether the MND contained adequate mitigation measures because insignificant effects do not require mitigation.

The court declined to address whether CEQA required assessment of the effects of the environment on a project (in addition to the effects of a project on the environment) because it found that here, petitioner was arguing that the project would physically change the environment by disturbing contaminated soil. However, the court rejected the notion that the existence of toxic soil contamination at a project site is itself necessarily a significant impact requiring CEQA review and mitigation. The court also found that the site’s appearance on a list of hazardous locations merely meant it was not categorically exempt from CEQA review; it did not mean the project required an EIR.

The court did not decide whether adverse effects confined only those who build or reside in a project can ever render the effects of a physical change significant, given that CEQA generally does not regulate environmental changes that do not affect the public at large. Here, Parker Shattuck did not identify evidence sufficient to support a fair argument of significance even if there were health risks to the project’s workers and future residents. A scientific expert’s suggestion to investigate further, the court added, was not substantial evidence of an adverse impact.

Draft EIR of Sacramento Kings Arena Released

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On December 16, 2013, the city of Sacramento released the notice of availability of its draft EIR for the new downtown Sacramento Kings arena. The analysis, promulgated pursuant to SB 743, analyzes the arena’s anticipated environmental impacts related to noise, traffic, and air quality, among other effects. The city will be required to implement mitigation measures for any significant impacts.

The “Entertainment and Sports Center” project site covers a 6-square-block area bordered by 3rd and 7th Streets on the west and east, and J and L Streets on the north and south. The project includes demolition of up to 857,943 square feet of the existing Downtown Plaza buildings and their underground parking garages, and construction of a 780,000-square-foot, 17,500-seat NBA arena and up to 1.5 million square feet of office, retail, housing, and hotel uses at the site. Project developers also plan to use the site for “major entertainment and civic events.” The center will replace the Sleep Train Arena in north Natomas as the home arena of the Kings.

The EIR focuses its analysis on 13 issues, including light and glare, noise and vibration, and transportation and circulation. The issues range from localized concerns – e.g., the change in demand for public utilities such as electricity demand and wastewater collection facilities – to broader concerns like contribution to climate change. The analysis evaluates a range of project alternatives, including different locations for the arena. Woven into this discussion are a number of “areas of controversy” identified by public comment letters that were received during the notice of preparation, such as the management of traffic coming in from the freeway, and the availability of onsite and offsite parking.

The EIR’s 45-day public comment period runs from December 16, 2013 through January 31, 2014. A public EIR workshop will be held Wednesday, December 18th at 6 p.m. in the City Hall lobby, and a public hearing to take comments on the draft EIR is set for 5:30 p.m. on January 23, 2014 in the City Council Chambers.

Court upholds San Francisco’s expansion of plastic bag restrictions in unpublished case

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Save the Plastic Bag Coalition v. City and County of San Francisco, First Appellate District, Division 2, A137056, December 10, 2013.

In 2012, San Francisco enacted an ordinance expanding existing restrictions on the use of plastic checkout bags by retail establishments in the city. Save the Plastic Bag Coalition challenged the ordinance, contending that, first, it did not comply with CEQA, and second, it was preempted by the state Retail Food Code. The trial court denied the Coalition’s petition and decided in favor of the city.

In an unpublished decision, the First District Court of Appeal upheld the trial court’s decision and the revised ordinance. The holding aligned with outcomes in other recent cases involving plastic bag bans in Marin County and Manhattan Beach.

1. CEQA

There was no dispute that the ordinance was a project under CEQA, and therefore subject to further environmental review unless it was exempt. The city had found that the ordinance qualified for two categorical exemptions, and therefore could be adopted without first preparing an EIR. The Coalition argued that the city was precluded by law from relying on a categorical exemption for this project, or, alternatively, that the “unusual circumstances” exception to the categorical exemptions applied to the action.

Categorical exemptions

The Coalition did not dispute that the record contained substantial evidence that the ordinance fell within two categorical exemptions aimed at regulatory actions to protect the environment. Rather, the Coalition argued that the city committed two legal errors by relying on those exemptions. First, it argued no city larger than Manhattan Beach could rely on a categorical exemption for a plastic bag ordinance, based on language in the Supreme Court’s earlier decision in Save the Plastic Bag Coalition v. City of Manhattan Beach. Second, it argued the city was precluded by law from relying on the categorical exemptions in section 15307 and 15308 of the CEQA Guidelines because those exemptions only apply to “regulatory actions,” and the 2012 ordinance was a legislative action.

As to the first issue, the court found nothing in Save the Plastic Bag Coalition v. City of Manhattan Beach decision to support the Coalition’s contention that San Francisco could not rely on a categorical exemption simply because it was larger than Manhattan Beach. In fact, Manhattan Beach was not even a categorical exemption case. Regarding the second issue, the court in the more recent case, Save the Plastic Bag Coalition v. County of Marin, had stated that although ordinances are always legislative in nature, they may also constitute “regulations.”  Thus, the exemptions still applied to the city’s action.

Unusual Circumstances Exception

The Coalition also argued that the 2012 ordinance fell within the “unusual circumstances” exception to the categorical exemptions. The unusual circumstances exception states that a categorical exemption may 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. (CEQA Guidelines, § 15300.2(c).) “Unusual circumstances” are features of a project that distinguish it from other projects in the exempt class.

There is currently a split of authority over the proper standard of review for determining whether an otherwise exempt project falls within the exception. The court assumed for the sake of argument, without deciding, that the “fair argument” rather than “substantial evidence” standard applied. The Coalition argued that the ordinance was an unusual circumstance because it would increase the use of single-use paper and compostable bags without decreasing the use of other reusable bags, since the large number of tourists and commuters in the city would not bring their own bags or would underuse them before throwing them away. The court found no fair argument supporting this theory.

The court agreed with Manhattan Beach that studies on paper versus plastic bag life cycles, which suggested compostable and underused reusable bags were worse for the environment than single-use plastic bags, did not create a fair argument that the ordinance would negatively impact the environment; the court was not convinced global impact studies were a fair or accurate mechanism for measuring the impacts of a local ordinance. Even if the life cycle studies were arguably relevant in evaluating a plastic bag ban, the 2012 ordinance was not a flat-out plastic bag ban, but rather, a checkout bag ordinance that regulated all bags, not just single-use plastic bags.

2. Retail Food Code

Finally, the Coalition argued that the city’s ordinance was preempted by state law. The Retail Food Code stated it was the intent of the Legislature to occupy the field of health and sanitation standards relating to retail food facilities. The ordinance, however, did not establish health or sanitation standards for retail food establishments. The court concluded that the code did not regulate the field of retail food to the extent it precluded this ordinance, noting that “a field, even an entire field, has some ending point.” The fact that certain provisions of the code also addressed carryout bags did not alter the conclusion, since preemption doctrine does not preclude a city from exercising its police power on a subject simply because the Legislature has enacted a law on the same subject.

Requests for publication are expected to be filed.

Canada will link its cap-and-trade program with California’s in 2014

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The Air Resources Board (ARB) has announced that California and the Quebec province are scheduled to link their cap-and-trade programs on January 1, 2014.

Quebec recently held its first auction for cap-and-trade allowances. ARB Chairman Mary Nichols praised the Canadian province for its hard work developing a cap-and-trade program and bringing about the successful auction. She stated that linking the regions’ programs will “show our respective nations, and the world, how states and provinces can work together to reduce greenhouse gases and fight climate change.”

A joint auction is expected later in 2014.

California Releases Draft Climate Change Preparation Plan

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On December 10, 2013, Governor Brown’s administration released a draft of its climate change adaption strategy, the “Safeguarding California Plan.” The plan addresses the state’s preparedness for the effects of extreme weather, rising sea levels, shifting snowpack, and other climate-related concerns. It outlines risk management options needed in sectors such as public health, energy, agriculture, and water.

The plan lists fires, floods, severe storms, and heat waves as some of the weather events California must be prepared to withstand, as those events will only become more frequent and dangerous as global temperatures rise. To combat these events, according to the plan, we must increase habitat resilience, strengthen the emergency response system, and improve coordination between local, state, and federal governments and private entities.

The plan focuses on sustainable strategies, such as local water sourcing, localized smart grids, and long-term mitigation funding, which will serve as the foundation for a clean energy economy in the state. The plan also calls for a reduced carbon footprint going forward.

The plan is an update to the 2009 California Climate Adaptation Strategy.

Supreme Court Grants Review to Determine Whether CEQA Requires Analysis of the Effect of the Environment on a Project

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On November 26, 2013, the California Supreme Court granted review of California Building Industry Association v. Bay Area Air Quality Management District (“CBIA v. BAAQMD”) to settle the following issue: Under what circumstances, if any, does CEQA require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

Prior to the CBIA case, this issue most recently arose in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455. There, the petitioner argued that the EIR for a real estate development project failed to address the impacts that future sea level rise could have on the project. The court disagreed that the EIR needed to address this issue, stating that “the purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project.” The court concluded that identifying the effects on a project and its users of locating the project in a particular environmental setting was neither required by CEQA nor consistent with the statute’s legislative purpose. The court found that Guidelines section 15126.2, which encourages such analysis, was unauthorized by the CEQA statute and therefore invalid. Section 15126.2 would require analysis of the seismic hazard to future occupants of a subdivision astride an active fault line, or the effect of locating development in a floodplain or on a coastline.

In CBIA v. BAAQMD, the California Building Industry Association challenged the Bay Area Air Quality Management District’s significance thresholds for receptors affected by certain air pollutants as unauthorized by CEQA. These thresholds establish significance levels for certain air pollutants for both new sources (projects) and new receptors (residents and workers brought into the area as a result of the project). CBIA argued that the receptor thresholds were invalid under Ballona because the thresholds could require an EIR based solely on the effects of the existing environment on a proposed project and its occupants. The District argued that it made “no sense to require analysis of the health risks to residents if a freeway is built next to them, but not to require analysis of the exact same risks if new homes are built next to an existing freeway.” The District also argued that disregarding the effect of the environment on people who will occupy a new development is contrary to CEQA’s purpose of providing “a decent home and suitable living environment for every Californian.”

The court considered CBIA’s challenge a facial one, and held that BAAQMD’s thresholds were not invalid on their face because case law did not bar their application in all or even most cases. The court stated that it did not need to decide whether Ballona had been correctly decided because the thresholds could be used to determine not just the effect of a project on project receptors, but also could be used to evaluate the increase in pollutants from a project itself.

The parties will file their opening briefs with the Supreme Court in early 2014.

[Case No. S213478]