On April 7, 2014, the United States District Court for the Eastern District of California issued an order in Sierra Club v. Tahoe Regional Planning Agency (April 7, 2014), E. D. Cal. Case No. 2:13-cv-00267 denying plaintiffs Sierra Club and Friends of the West Shore’s motion for summary judgment, and granting defendant Tahoe Regional Planning Agency’s (TRPA’s) cross-motion for summary judgment. The outcome upheld TRPA’s approval of its Regional Plan Update (RPU), which guides all land-use planning and development within the Lake Tahoe Region.

Background

In 2012, TRPA certified the final EIS for and approved its RPU. Key components of the RPU include TRPA’s adoption of a Regional Transportation Plan and the incorporation of Lake Tahoe’s Total Maximum Daily Load (“TMDL”) into its Regional Plan.  Plaintiffs challenged the approval, contending the RPU violated the Tahoe Regional Compact’s requirements.  Plaintiffs overarching contention was that TRPA failed to adequately evaluate potential impacts associated with the RPU’s strategy of loosening certain development restrictions in order to incentivize redevelopment in urban areas and remove existing development in outlying areas, based on the premise that this strategy would enable more environmentally sensible land use.  Plaintiffs also argued TRPA’s findings that the RPU would achieve and maintain adopted threshold standards was not supported substantial evidence as required under the Compact.  TRPA, in contrast, characterized the RPU as incorporating contemporary planning principles, current science, and a focus on redevelopment incentives to convert substandard development into modern, environmentally beneficial, visually attractive, walkable, bikeable communities.   TRPA argued that its finding were supported by substantial evidence and that the PRU would accelerate threshold attainment by creating incentives to restore sensitive lands and increasing BMP compliance.

Both parties agreed that disposition at the summary judgment stage was appropriate given that the case was based on an administrative record. The court refused to consider documents outside the record which post-dated the TRPA’s approval of the RPU. The court reviewed Sierra Club’s claims that TRPA violated the Compact in approving the RPU under an arbitrary and capricious standard, which confers deference to agencies.

The District Court’s Decision

Plaintiffs first argued that TRPA failed to analyze the potential localized impacts from concentrating impervious surface coverage in urban centers. Plaintiffs contended that TRPA’s failure to conduct a watershed-level analysis on the effect of geologically-concentrated coverage and its decision to conduct only a region-wide study was arbitrary and capricious. The court disagreed holding TRPA’s choice of modeling was an exercise of its scientific expertise and entitled to deference. In reaching this conclusion, the court stated that although Plaintiffs may prefer a different model, TRPA’s choice of the TMDL model was supported by substantial evidence and the EIS explained why Plaintiffs’ proposed watershed-level analyses were neither feasible nor necessary given the programmatic nature of the EIS.  The court further held that TRPA was not required to address “every possible scientific uncertainty” and that the EIS’s region-wide analysis was consistent with the regional scale of the RPU.  The court found TRPA’s decision to defer site-level analysis was reasonable because site-level analysis was required under the RPU when local jurisdictions approve Area Plans or when specific development projects are proposed.   The court also rejected Plaintiffs’ argument that compliance with Tahoe TMDL was not mandatory and that TRPA could not rely on the TMDL to support its findings that water quality thresholds would be attained under the RPU.

Plaintiffs’ second argument was that the EIS failed to examine the cumulative impacts to soil conservation resulting from increased development and concentrated impervious surface coverage in urban centers. The court, however, found that TRPA’s conclusion that the RPU would not have a significant effect on local soil conditions was supported by the record. The court stated although EIS’s discussion of the RPU’s soil related impacts was not as thorough as its discussion of water-quality impacts, this was consistent with the fact that the vast majority of comments focused on RPU’s potential impact on water quality.

Next, Plaintiffs argued that TRPA improperly relied on BMP installation and maintenance in concluding that the RPU would not significantly affect water quality.  TRPA responded to this argument noting that under the RPU all new or re-development is required to install and maintain BMPs as a condition of project approval.  Plaintiffs took issue with the past failures of the agency to enforce BMP retrofit requirements for existing development, but the court found that this view overlooked the RPU’s inclusion of programs designed to incentivize and improve the maintenance of BMPs for these parcels. Given that BMP maintenance is mandatory under TRPA ordinances, the court opined, the agency was entitled to conclude that its BMP ordinance would be largely followed.

Finally, TRPA argued that, contrary to plaintiffs’ assertions, its conclusion that the RPU would attain and maintain ozone threshold standards was supported by substantial evidence. The court found TRPA was not required to make a finding that the Lake Tahoe Air Basin is currently in attainment of all threshold standards. Rather, it was only required to find that the RPU implemented a plan that would achieve and maintain threshold standards. The RPU implemented a number of programs and policies designed to reduce automobile dependency. This, with other findings, constituted substantial evidence supporting TRPA’s conclusion that the Regional Plan, as amended by the RPU, would achieve and maintain ozone threshold standards.

The court also rejected Plaintiffs’ argument that TRPA failed to adequately explain its rationale for changing its conclusion regarding one of its ozone threshold in the Final EIS.  The court noted that data unavailable when TRPA published its draft EIS had led to a change its conclusion.  This new data indicated the region was in attainment with the all ozone threshold standards. The court deferred to TRPA’s scientific determination that data from a single Nevada monitoring site was representative of conditions throughout the Lake Tahoe Air Basin based on historical trends and that this data was sufficient to evaluate attainment of ozone thresholds.  The court noted that TPRA acknowledged the limited data available from monitoring sites during the relevant time frame and took this into account in its determination that there was a “moderate” confidence level for this conclusion.  The court found TRPA’s conclusion was supported by substantial evidence stating that TRPA was not required to demonstrate complete certainty in its findings.

RMM partners Whitman Manley and Howard (Chip) Wilkins represented TRPA.