In Westside Los Angeles Neighbors Network v. City of Los Angeles (2024) ___ Cal.App.5th ___, the Second District Court of Appeal affirmed the trial court’s decision upholding an EIR and CEQA exemptions for several actions implementing the City of Los Angeles’ Westside Mobility Plan.

Background

The Westside Mobility Plan is a comprehensive study that was undertaken by the City of Los Angeles to develop potential short-term solutions and long-term plans addressing congestion and mobility challenges within that part of the city. In 2018, the city’s planning commission took actions to implement three of the six components of the Mobility Plan. These actions included (1) amendments to transportation impact assessment fee programs for two existing specific plans (Fee Program Updates); and (2) adoption of a Streetscape Plan setting guidelines and standards for streetscape elements such as street trees and landscaping, sidewalk paving, street lighting, and pedestrian crossings for the Mobility Plan area. While the Fee Program Updates and Streetscape Plan are largely separate, implementation of the Streetscape Plan could be funded through the transportation impact fees included in the Fee Program Updates.

The city prepared an EIR for the Fee Program Updates, which noted that the Mobility Plan’s other components, including the Streetscape Plan, were exempt from CEQA. The planning commission subsequently certified the EIR and also determined that the Fee Program Updates were statutorily and categorically exempt from CEQA.

The petitioner filed a petition for writ of mandate challenging the planning commission’s authority to certify the EIR, the adequacy of the EIR, and the use of CEQA exemptions.  The trial court denied the petition. The petitioner appealed.

The Court of Appeal’s Decision

The Court of Appeal first considered whether the planning commission had authority to certify the EIR.  The petitioner argued that for a multi-component project like this, only the entity authorized to implement the component constituting the “primary source” of the project’s environmental impacts has the authority to certify the EIR, and that here, the primary source of the project’s impacts was the Fee Program Updates, which could only be approved by the City Council.  The court disagreed.

The court explained that under CEQA and the CEQA Gudelines, a non-elected decision-making body within a local agency (like the planning commission here) may certify an EIR. The court further found that, taken together, the applicable Guidelines establish that a “decision-making body” is any person or group of people within a public agency permitted by law to commit an agency to a definite course of action for a project. Accordingly, rather than asking whether the entity can implement the portion of the project constituting “the primary source” of the project’s environmental effects, as suggested by the petition, the relevant question is whether the entity at issue can make a decision that commits the agency to a definite course of action with respect to the whole project, even if the project is subject to multiple discretionary approvals.  Here, given the overlap between the Fee Program Updates and the Streetscape Plan, the court concluded that, by virtue of its power to adopt the Streetscape Plan, the planning commission could make a decision committing the City to a definite course of action in regard to the project (both the Fee Program Updates and the Streetscape Plan), even though further discretionary action by the City Council (i.e., adoption of the Fee Program Updates) was required to implement it.

The court next turned to the question of whether the Streetscape Plan falls within the scope of the Class 1 categorical exemption for minor alterations of existing facilities with negligible or no expansion of use. Answering in the affirmative, the court found that the Streetscape Plan, which includes standards for various streetscape elements, would result in only minor alterations to existing rights-of way that would improve aesthetics, functionality, and safety rather than expand their use.

The court rejected the petitioner’s contention that the Streetscape Plan did not meet the requirements of the Class 1 categorical exemption because the EIR and Statement of Overriding Considerations identified significant and unavoidable impacts related to the Fee Program Updates due to air quality, noise and vibration and transportation. The court explained that neither the EIR nor the city’s Statement of Overriding Considerations related to the improvements to be implemented as part of the Streetscape Plan, or more importantly, addressed whether the Streetscape Plan involved an expansion of use of an existing facility.

In relation to the EIR, the court observed that the petitioner appeared to be arguing that the EIR’s growth-inducing impact analysis was deficient because it failed to address concerns that the project would spur economic and population growth or directly or indirectly result in the construction of new housing raised in two comments received on the draft EIR. Despite the lack of clarity, the court nevertheless rejected the petitioner’s assertion. The court noted that the city addressed these concerns in the final EIR, concluding in responses to comments that the Fee Program Update would not induce growth. The court further noted that the petitioner had not raised any issues with the final EIR’s responses to the comments.

Finally, the petitioner argued that the EIR was insufficient because it failed to ensure how a neighborhood protection program, required as mitigation for the Fee Program Updates, would be funded. The court disagreed. The EIR specified that the program would be funded through fees obtained from the Fee Program Updates and the mitigation measure included specific thresholds that would trigger implementation of the program.

– Adam Nir

In Upland Community First v. City of Upland (2024) __Cal.App.5th__, the Fourth District Court of Appeal reversed a trial court order setting aside an MND for a warehouse project.  The Court of Appeal rejected the petitioner’s claims that impacts related to GHG emissions and traffic triggered the need for an EIR.

Background

The project, as initially proposed, included three warehouse buildings totaling 977,246 square feet located on a 50-acre parcel used for a rock and gravel crushing operation. In response to concerns that the project was too large, the applicant reduced the size to a single, one-level warehouse of 201,096 square feet.

The city prepared an MND for the project. The MND concluded that the project’s GHG emissions would be less than significant based on the South Coast Air Quality Management District’s 10,000 MTCO₂e/yr threshold for “heavy industrial stationary projects,” as well as a qualitative evaluation of the project’s consistency with the city’s general plan and climate action plan. In response to comments urging the city to use SCAQMD’s 3,000 MTCO₂e/yr threshold for mixed-use commercial/non-industrial projects, the project was revised to include sustainability features that reduced GHG emissions to below the 3,000 MTCO₂e/yr threshold. In connection with the project revisions, a supplemental GHG analysis was prepared using revised (increased) baseline emissions, which included the existing rock and gravel crushing activity on the project site. The revised GHG analysis concluded that the project would generate less than 3,000 MTCO₂e/yr.

The petitioner filed a petition for writ of mandate alleging that an EIR was required because a fair argument could be made that the project would have significant impacts on traffic, transportation, air quality, and GHG emissions. The trial court granted the petition on the sole ground that substantial evidence failed to support the use of the 10,000 MTCO₂e/yr threshold. Additionally, the trial court found that even if the 3,000 MTCO₂e/yr had been applied, there was no explanation for the revised baseline used in the supplemental analysis.

The developer and the petitioner both appealed.

Court of Appeal’s Decision

Reversing the trial court, the Court of Appeal held that substantial evidence supported the city’s determination that the 3,000 MTCO₂e/yr was an appropriate numerical threshold for measuring the project’s GHG emissions. The court found that expert evidence explaining why the 10,000 MTCO₂e/yr threshold was inappropriate and urging the city to use instead the more stringent standard demonstrated a scientific and factual basis for use of the 3,000 MTCO₂e/yr threshold.

The court further held that the 3,000 MTCO₂e/yr threshold was an appropriate threshold for cumulative impacts resulting from a project’s GHG emissions. The court reasoned that in developing the 3,000 MTCO₂e/yr, SCAQMD relied on data collected by the Governor’s Office of Planning and Research, which shows that the 90 percent capture rate for commercial/mixed use commercial projects ranged from 1,390 to 1,481 MTCO₂e/yr.

As applied to this project, the court observed that the use of the 3,000 MTCO₂e/yr was conservative since the project is mixed-use commercial/industrial which would generally have higher GHG emissions compared to a mixed-use commercial/residential project.

Regarding the increase in baseline emissions used in the supplemental GHG analysis, the court agreed with the petitioner that the MND did not explain the reason for the increase in baseline emissions. The court nevertheless found that circumstantial evidence in the record showed that the increase was attributable to 78 truck trips used in the existing rock and gravel crushing operation that had not been included in the initial GHG analysis. The court therefore upheld the baseline emissions used in the supplemental GHG analysis.

Regarding the project’s traffic impacts, the petitioner argued that the MND’s analysis was inadequate because it underestimated the project’s daily passenger car equivalent (PCE) trips by using the incorrect trip generation rate classification. The court determined, however, that evidence in the record showed the project would not result in significant impacts using either classification.

The court also rejected the petitioner’s claim that the MND did not explain how delivery vans and truck trips were accounted for in the trip estimates. The court found that the trip generation rate classification used in the traffic analysis included delivery vans and truck traffic, and that additional discussion in the MND was not required.

Finally, the court held that the petitioner’s traffic claims related to congestion were moot given CEQA’s shift to using VMT as the metric for traffic impacts pursuant to CEQA Guidelines section 15064.3.

In Sunflower Alliance v. California Department of Conservation, the First District Court of Appeal found that conversion of a former oil well into an injection constituted a negligible expansion of use and upheld the agency’s factual determination that the project fell within the scope of the Class 1 categorical exemption for existing facilitates.

Background

The project at issue involves the conversion of a former oil well into an injection well. The project involves modest changes to the existing injection well site, including removal of a well plug, installation of injection equipment inside the well, with the same continued use of the existing well pad and access road. The injected water will be confined to the aquifer by a barrier of about 1,000 vertical feet of shale.

The project was reviewed by Department of Conservation’s Division of Geologic Energy Management (CalGEM), the State Water Resources Control Board, and the Regional Water Quality Control Board. As the lead agency, CalGEM found that the project fit within the Class 1 categorical exemption. According to CEQA Guidelines section 15301, Class 1 consists of “the operation, repair, maintenance, permitting, leasing, licensing, or minor alteration of existing public or private structures, facilities, mechanical equipment, or topographical features, involving negligible or no expansion of existing or former use.” CalGEM found that the injection equipment would be installed within the existing well boring and would require no significant surface equipment or new drilling and would further eliminate the need for routine trucking of produced water from the applicant’s active oil wells.

The petitioner filed a petition for writ of mandate challenging CalGEM’s determination that the project was categorically exempt from CEQA. The trial court granted the petition on grounds that injection, rather than extraction, constitutes a “significantly different use” and issued a writ directing CalGEM to set aside its approval of the project.

CalGEM complied with the writ, but the project applicant appealed.

The Court of Appeal’s Decision

The First District Court of Appeal reversed. The court considered whether well conversion projects, as a group, are beyond the scope of the Class 1 exemption. The petitioner argued that any new use of a modified well is an impermissible expansion. In contrast, the applicant argued that the applicability of the Class 1 exemption turns on the degree of change occurring as part of a project.

The court did not fully agree with either the petitioner or applicant. The court found that adopting petitioner’s approach would render the term “negligible” superfluous contrary to established principles of statutory interpretation. Instead, the court focused on the environmental consequences of a change in use to conclude that application of the Class 1 exemption is appropriate where the risk of environmental harm resulting from a change in use is negligible. The court also noted this interpretation aligns with the fundamental purpose of categorical exemptions, which is to exclude from CEQA review certain classes of projects that have been determined to not have significant environmental impacts.

As applied here, the court found that the project fell within the scope of the Class 1 categorical exemption. The court reasoned that not only does the project involve only minor alteration to existing equipment, but also that the environmental risks of the conversion are negligible because the project’s approval includes a regulatory determination ensuring that the injected water cannot escape the underlying aquifer and harm people, property, or the environment.

The court found petitioner’s claims regarding environmental impacts were unsupported by substantial evidence and speculative. The court similarly rejected the petitioner’s claim that CalGEM’s request for additional technical information regarding migration of injected water as part of its review was evidence of a potentially significant environmental effect. The court noted that based on additional analysis and a requirement to conduct testing to confirm that analysis, any concerns regarding impacts to water quality had been resolved.

Finally, the petitioner argued that imposition of mitigation measures to eliminate the project’s alleged environmental impacts precluded use of the Class 1 categorical exemption. The court disagreed, finding that although numerous special conditions had been imposed as part of the project approval, the conditions were standards required for issuance of the permit, and therefore were not appropriately construed as CEQA mitigation measures.

– Hannah Rider