Tag: Cumulative Impacts

SECOND DISTRICT UPHOLDS CLASS 1 EXEMPTION FOR PROJECT TO EXPAND SINGLE-FAMILY HOME

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In Arcadians for Environmental Preservation v. City of Arcadia (2023) 88 Cal.App.5th 418, the Second District Court of Appeal upheld a finding by the City of Arcadia that a project to expand and add a second story to a single-family home was categorically exempt from CEQA. In doing so, the court concluded that petitioner failed to exhaust its administrative remedies regarding the scope of the exemption and failed to demonstrate that the city improperly relied on the exemption.

Background

Over a nearly two-year period beginning in June 2018, project applicant submitted, revised, and re-submitted an application to her homeowners’ association (HOA), seeking to expand the first floor of her single-family home and add a second floor. In April 2020, after the HOA’s architectural review board twice rejected her project, the applicant appealed the rejection to the city’s planning commission.

In May 2020, after a noticed hearing, the planning commission voted to conditionally approve the project, so long as various proposed changes were incorporated. The planning commission found that the project qualified for a Class 1 categorical exemption for modifications to existing structures.

The applicant’s neighbor appealed the planning commission’s approval to the city council. The city council upheld the planning commission’s decision.

The neighbor then formed the petitioner organization and filed a petition for writ of mandate challenging the city’s compliance with CEQA. Shortly thereafter, the city filed a Notice of Exemption for the project. The trial court denied the petition. Petitioner appealed.

Court of Appeal’s Decision

The court held that (1) petitioner failed to exhaust its administrative remedies on the issue of whether the project was within the scope of the Class 1 exemption, (2) the city did not abuse its discretion by impliedly determining that no exceptions to the categorical exemption applied, and (3) petitioner failed to demonstrate that the cumulative impacts exception precluded the city’s reliance on the Class 1 exemption.

Failure to Adequately Exhaust

Petitioner argued that the city erred in determining the Class 1 exemption applied and cited the neighbor’s comments during his administrative appeal as support that petitioner had adequately exhausted on this issue. The court disagreed, reasoning that the neighbor (or anyone else) failed to articulate why the Class 1 exemption was inapplicable. Instead, the court noted that the neighbor made only “general references to potential environmental impacts” that did not fairly apprise the city of petitioner’s specific objection that the exemption did not apply.

The court rejected petitioner’s argument that its member had impliedly objected to the city’s exemption finding by requesting an EIR. The court conceded that a request for an EIR suggests a belief that no exemption applies but explained that such a request nevertheless does not adequately notify the agency about the substance of the challenge.

The court acknowledged that CEQA’s exhaustion requirement may be excused if the agency provides no opportunity for public comment or fails to give notice; however, it concluded that petitioner’s failure to exhaust was not excused in this case. Although the city did not consistently identify the specific subdivision of the Class 1 exemption that it relied on, the court concluded that this discrepancy was immaterial.

Exceptions to the Exemption

The court next rejected petitioner’s argument that the city failed to proceed in a manner required by law by failing to expressly consider whether an exception precluded the application of the Class 1 exemption. The court explained that the city’s determination that the Class 1 exemption applied necessarily included an implied finding that no exception precluded its application. The court reasoned that, while the city could not ignore contrary record evidence when making its finding, the finding did not need to be express.

After noting that there was “some question” whether petitioner’s comments during the administrative appeal preserved an argument that the cumulative impacts exception precluded the application of the Class 1 exemption, the court concluded that, regardless, that the argument failed on its merits.

The court concluded that petitioner’s general reference to “cumulative environmental effects caused by multiple large-scale projects,” along with identification of various nearby projects, did not amount to evidence of actual impacts that would result from the project and other nearby projects. The court rejected petitioner’s evidence that the cumulative impacts exception applied as “pure speculation” that could not, without more, preclude application of the Class 1 exemption.

Louisa Rogers

FOURTH DISTRICT UPHOLDS EIR FOR MULTI-FAMILY HOUSING PROJECT AND FINDS CITY PROPERLY USED A PLANNED DEVELOPMENT PERMIT TO ALLOW A VARIATION FROM CONVENTIONAL ZONING REGULATIONS

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In Ocean Street Extension Neighborhood Association v. City of Santa Cruz (2022) 73 Cal.App.5th 985, the Fourth District Court of Appeal held that an EIR for a multi-family housing project properly relied on the biological resources analysis and mitigation measures identified in the initial study for the project, and sufficiently addressed the project objectives, alternatives, and cumulative impacts to water supply and traffic. Reversing the trial court, the Court of Appeal also held that the City complied with its municipal code by using a planned development permit as a variation from its conventional slope regulations.

Background

The proposed project consisted of a 40-unit residential complex on a vacant lot in the City of Santa Cruz. The City prepared an initial study that discussed, among other topics, biological impacts that would be reduced to less-than-significant with mitigation, and later circulated a draft EIR and recirculated draft EIR before certifying the final EIR. The City Council approved a reduced-housing alternative with 32 units.

Along with a general plan amendment, rezone, and other entitlements, the City approved a planned development permit (PDP) to allow a variation from the conventional slope regulations in the City’s zoning code.

The Ocean Street Extension Neighborhood Association (OSENA) filed a petition for writ of mandate challenging the EIR and the City’s approval of the PDP. The trial court ruled that the City complied with CEQA, but found the City violated its municipal code by not requiring compliance with the conventional slope regulations. OSENA appealed and the City and Real Parties in Interest cross-appealed.

The Court of Appeal’s Decision

CEQA and Adequacy of the EIR

Upholding the trail court’s ruling on the CEQA claims, the Court of Appeal concluded that the EIR was adequate. The court held that impacts that are less than significant with mitigation may be discussed in an initial study rather than in the EIR as long as the EIR fulfills its purpose as an informational document. The court noted that the EIR summarized the impacts and mitigation measures, and the EIR’s reference to the initial study—which was attached to the EIR as appendix—sufficiently alerted the public to the environmental issues and provided readers with adequate information. Accordingly, the court determined that it was appropriate for the EIR to rely on the biological resources analysis and mitigation measures identified in the initial study.

The court also rejected OSENA’s argument that the mitigation measures were vague and improperly deferred because OSENA failed to exhaust its administrative remedies as to this issue and did not raise it in the trial court proceedings. The court nonetheless explained that even if it considered this issue on the merits, it would reject OSENA’s arguments because the question of effectiveness of a mitigation measure is a factual one, which, in this case, was supported by substantial evidence in the record.

The court further concluded that the project’s objectives and alternatives analyses were adequate, and that OSENA’s arguments amounted to mere disagreement with the City’s conclusions. The court explained that rejecting or approving an alternative is a decision only for the decisionmakers, and they may reject alternatives that are undesirable for policy reasons or fail to meet project objectives. While the project objectives included specific targets, those objectives did not improperly restrict the range of alternatives analyzed in the EIR, and the City justified its reasons for rejecting alternatives with even less housing than the 32-unit alternative.

Additionally, the court determined that the EIR sufficiently analyzed the project’s cumulative impacts on water supply and traffic. Regarding water supply, the court explained that the EIR’s analysis properly considered the water supply impact in light of city-wide needs and future demand, and properly relied on the City’s Urban Water Management Plan. Regarding traffic, the court held that OSENA’s arguments challenging the EIR’s analysis of LOS impacts were moot because CEQA Guidelines section 15064.3, which took effect after the case was initiated, provides that a project’s effects on automobile delay shall not constitute a significant environmental impact.

Therefore, the Court affirmed the portion of the trial court’s order and judgment concluding that the City complied with CEQA.

Santa Cruz Municipal Code

Reversing the trial court’s ruling on OSENA’s municipal code claims, the Court of Appeal held that the City did not violate its municipal code by granting a PDP without also requiring compliance with the conventional slope modification regulation procedures in its zoning code. The City’s PDP ordinance allows a variation from certain zoning regulations including “Slope Regulations Modifications, pursuant to procedures set forth in Chapter 24.08, Part 9 (Slope Regulations Modifications).” Rejecting OSENA’s claim that the City was required to comply with the conventional regulations in Chapter 24.08, Part 9, in addition to the requirements for a PDP, the court explained that the City should be afforded deference in the interpretation of its own municipal code. The court upheld the City’s determination that the granting of a PDP does not require compliance with the conventional slope regulations, as this interpretation was consistent with the text and purpose of the ordinance and interpreting the PDP ordinance as requiring compliance with both the PDP ordinance and the slope regulations would have served no readily apparent purpose.

RMM Partners Christopher L. Stiles and Tiffany K. Wright represented the Real Parties in Interest in this case.  Chris Stiles argued the case in Court of Appeal on behalf of the City and Real Parties.

-Veronika S. Morrison

Second District Upholds City of Los Angeles’ Determination That EIR Not Required to Assess Population or Housing Impacts for Hotel Project on Site of Vacant Former Apartment Building

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In an opinion certified for partial publication on July 22, 2019, the Second District Court of Appeal affirmed the trial court’s decision and held that the City of Los Angeles was not required to prepare an EIR to assess housing-related impacts for a boutique hotel project on the site of a now-vacant former apartment building. Hollywoodians Encouraging Rental Opportunities (HERO) v. City of Los Angeles (B285552; filed 6/28/19, ordered published 7/22/19) ___ Cal.App.5th___ (“HERO”).

The project at issue in HERO is a proposed 24-room boutique hotel in the Hollywood area of Los Angeles. Prior to 2013, the project site was occupied by an 18-unit apartment building that was subject to the city’s Rent Stabilization Ordinance. In 2013, the owner filed a notice of intent to withdraw all 18 units from the rental housing market pursuant to the Ellis Act in order to pursue construction of a condominium project on the site. While the condo project was later abandoned due to a lack of financing, the building never returned to the rental market and remained uninhabited for nearly two years.

In July 2015, the owner of the property submitted a new application to the city, this time seeking to convert the site into a 24-room hotel. The city prepared an initial study for the hotel project. The initial study concluded that, with mitigation, the project would have no significant environmental impacts. With respect to population and housing impacts specifically, the initial study concluded that the project would not displace housing units or residents because the apartments had been withdrawn from the rental market and the building was uninhabited. Accordingly, the zoning administrator adopted a mitigated negative declaration (MND) and approved the project. The zoning administrator’s decision was subsequently affirmed following appeals to the area planning commission and city council.
Following the city council’s approval of the project, three petitioners, including a resident of a nearby building, a former tenant of the apartments, and HERO, filed a petition for writ of mandate challenging the approval. The thrust of the petitioners’ CEQA claims was that the city was required to prepare an EIR to analyze the project’s direct, indirect, and cumulative impacts on the supply of rent-stabilized housing and the displacement of tenants. The trial court denied the petition in full, holding that the city properly concluded the project would have no impact on housing or population because the rental units had been removed from the market and vacated long before the hotel project was proposed. The trial court further ruled that, aside from the baseline issue, the petitioners failed to demonstrate that the project would have a significant effect on the physical environment, and not just socioeconomic impacts.

On appeal, the petitioners’ primary argument was that the city was required to prepare EIR because substantial evidence supported a fair argument that the cumulative effect of the project and other similar projects would be to eliminate rent-stabilized housing units in Hollywood and displace residents that depend on such housing. The Court of Appeal rejected the petitioners’ argument, holding that the proper baseline against which the project’s impact must be assessed is a vacant building, not a tenant-occupied rental property. As the court explained, at the time the environmental analysis for the project commenced in 2015, the property did not include rent-stabilized apartments. Rather, as noted above, the all units had been withdrawn from the rental market in 2013 and the building sat uninhabited since that time. Because these events occurred prior to the project proposal and initial study, the court explained, they were not attributable to the project. Thus, the city properly determined an EIR was not required to analyze such impacts on housing and population. Moreover, the court added, there was nothing in the record to suggest that the 2015 hotel project was a reasonably foreseeable consequence of the initial condominium project for which the apartments were originally removed from the rental market, and there was no evidence that the city was attempting to chop up or evade CEQA review.

Turning to the issue of cumulative impacts, the court held that the city was not required to prepare an EIR to inquire into the cumulative impact of the project on housing and population. Because there was no substantial evidence of a project-specific potentially significant impact, the court explained, the city properly determined that the effects of the project would not be cumulatively considerable and no further analysis was required.

Remy Moose Manley partner Sabrina Teller and associate Christina Berglund represented the Real Parties in Interest in this matter.

First District Court of Appeal Upholds EIR for Mixed-Use Development Project

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In the first published decision to apply the standard of review articulated by the Supreme Court in Sierra Club v. County of Fresno (Friant Ranch), the First District Court of Appeal affirmed the trial court’s decision upholding an EIR for a mixed-use development project in South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321.

The project at issue is a mixed-use development that covers four acres of downtown San Francisco and seeks to provide office, retail, cultural, educational, and open-space uses for the property, to support the region’s technology industry and offer spaces for coworking, media, arts, and small-scale urban manufacturing. The city certified an EIR, which described two options for the project—an “office scheme” and a “residential scheme.” The office scheme had a larger building envelope and higher density than the residential scheme but all other project components were the same and the overall square footage was substantially similar. Several community organizations raised a variety of claims challenging the environmental review. The trial court denied relief and the petitioners appealed.

Applying the three “basic principles” set forth by the Supreme Court in Friant Ranch regarding the standard of review for the adequacy of an EIR, the First District held the EIR was legally adequate.

The court rejected the petitioners’ argument that the project description was inadequate because it presented multiple possible projects. The court found that the EIR described one project—a mixed use development involving retention or demolition of existing buildings and construction of new buildings—with two options for different allocations of residential and office units. The court also rejected petitioners’ argument that the final EIR adopted a “revised” project that was a variant of another alternative identified in the draft EIR—emphasizing that the CEQA reporting process is not designed to freeze the ultimate proposal in the precise mold of the initial project, but to allow consideration of other options that may be less harmful to the environment.

Petitioners alleged that the cumulative impacts analysis was flawed because the EIR used an outdated 2012 project list, developed during the “Great Recession,” which did not reflect a more recent increase in development. The court noted the petitioners did not point to any evidence to establish that the project list was defective or misleading or that the city had ignored foreseeable projects. Accordingly, the court held that the petitioners had not met their burden of proving the EIR’s cumulative impacts analysis was not supported by substantial evidence.

With respect to traffic, the petitioners argued the EIR was inadequate because it failed to (1) include all impacted intersections, (2) consider the impact of the Safer Market Street Plan (SMSP), and (3) adequately evaluate community-proposed mitigation measures and alternatives. The court rejected each argument in turn. First, the court found that the EIR’s explanation for selecting certain intersections and excluding others and the related analysis was supported by substantial evidence. The court further held that the city did not need to include the SMSP in the EIR because it was not reasonably foreseeable when the city initiated the EIR, nor was there evidence that the SMSP would have an adverse impact on traffic and circulation related to the project. Lastly, the court deferred to the city’s selection of alternatives because the petitioners had failed to meet their burden to show the nine alternatives evaluated in the EIR were “manifestly unreasonable.” Similarly, the court found the petitioners had failed to meet their burden to demonstrate their proposed alternatives were feasible and met most of the project objectives.

In addressing wind impacts, an argument petitioners failed to exhaust, the court found such impacts were appropriately addressed in the EIR. The court reasoned an alternative configuration was not required under the city’s comfort criterion for wind speed impacts because the exceedance of the comfort criterion did not establish significant impacts for CEQA purposes.

The court also rejected an argument that the project failed to provide onsite open space because the EIR explained that the project provided more space than the city code required and the impact related to demand on existing parks and open spaces would be less than significant.

The court further upheld the EIR’s shade and shadow analysis, finding no evidence in the record to support that sunlight on a park is not a “special and rare resource” warranting “special emphasis” under CEQA Guidelines section 15125.

The court also held that the city had made a good faith effort to discuss inconsistencies with the applicable general plans, noting that CEQA does not “mandate perfection.”

Finally, the petitioners claimed that the statement of overriding considerations was invalid because the city improperly considered the benefits of the project before considering feasible mitigation measures or alternatives. The court disagreed, emphasizing that the project was modified to substantially conform to the identified environmentally superior alternative and stating that the revised project would not have been adopted if there had been no consideration of mitigation measures or alternatives.

Responses to Comments on a Draft EIR Carry the Day in Challenge to Oil Refinery EIR

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On March 20, 2018, the First District ordered published its decision in Rodeo Citizens Association v. County of Contra Costa (2018) 22 Cal.App.5th 214, which involved a challenge to an EIR prepared for a propane and butane recovery project. Specifically, the Court of Appeal affirmed the trial court’s judgment that substantial evidence supported the EIR’s air quality, greenhouse gas (GHG), and hazards analyses.

Background

Phillips 66 Company (Phillips) owns two refineries, one near Santa Maria, the other near Rodeo. The Santa Maria refinery processes heavy crude oil, then sends it via pipeline to the Rodeo refinery where the product is finalized into petroleum products. The Rodeo refinery is able to process both heavy and light crude oil into petroleum products. In addition to the Santa Maria refinery, the Rodeo refinery receives crude oil from a variety of domestic and foreign crude sources delivered via ship. The final products are shipped by rail from the refinery for sale.

In June 2012, Phillips applied to Contra Costa County for a permit to modify the existing Rodeo facility and add new facilities to enable Phillips to recover butane and propane and ship it by rail for sale.

In June 2013, the County released a Draft EIR for the Project. A Final EIR was released in November 2013. Based on comments from the Bay Area Air Quality Management District, the Board of Supervisors ordered staff to prepare a Recirculated EIR (REIR) addressing the air and health issues raised by the Air District. After circulating the Draft REIR, in early 2015, the County published a Final REIR and approved the project.

Rodeo Citizens Association (Citizens) filed a petition for writ of mandate, alleging the EIR’s project description was inaccurate; the EIR failed to address the increased risks of accidents from train derailments or explosions caused by the project; and the EIR insufficiently addressed the project’s impacts to public health, air quality, climate change, and cumulative impacts. The trial court found certain deficiencies in the air quality section of the EIR, and issued a writ of mandate requiring the County to reconsider that section, but rejected the remainder of Citizens’ arguments. Citizens appealed.

The Court of Appeal’s Decision

Citizens argued the EIR’s project description incorrectly defined the project to include only the recovery and sale of propane and butane from refinery fuel gas. According to Citizens, the real purpose of the project was to allow Phillips to process increased amounts of non-traditional crudes, including imported tar sands and Bakken crudes, which contain higher levels of dangerous chemicals and result in worse air pollution during the refining process. Citizens contended the EIR’s project description violated CEQA for not disclosing the true scope of the project, which, in turn, caused the EIR to understate the project’s impacts. The court found, however, that substantial evidence supported the REIR’s project description. In particular, the Final EIR included a master response directly addressing the “project description,” which presented substantial evidence that the refinery would use its existing fuel gas stream to extract propane and butane, and the project is not dependent on new sources of crude oil feedstock. Citizens “only weakly” contested the accuracy of the master response and failed to demonstrate the County lacked substantial evidence for the project description.

Turning to the EIR’s GHG analysis, Citizens contended the analysis violated CEQA because it failed to consider GHG emissions resulting from the combustion of propane and butane by downstream users. The EIR addressed the issue of downstream users, but concluded that due to the lack of data and changing market conditions, it was not possible to determine to which uses purchases of the propane and butane would be put. In many instances, a switch to propane actually reduces GHG emissions as compared with gasoline and diesel. Indeed, California has adopted a program to encourage companies to switch from gasoline/diesel to propane. Ultimately, the EIR concluded that it would be too speculative to reach a conclusion regarding the significance of the Project’s GHG impacts resulting from downstream users. The Court of Appeal held that substantial evidence, including comments from the Air District, supported this conclusion.

Regarding the project’s public and environmental health hazards impacts, Citizens argued that the EIR failed to assess the impacts of the project on a child care center located approximately 500 feet from the rail lines on which the propane and butane would be transported from the refinery. The court first observed that this argument was “arguably barred” by the exhaustion doctrine, because Citizens failed to raise it prior to the County’s approval of the project. In any event, although the EIR did not specifically address how the transport of the project’s hazardous materials might impact the child care center, the EIR disclosed that the risk zone for rail transport under the project was 262 feet from the tracks. At around 500 feet away, the child care center is safely beyond this distance.

Finally, Citizens contended the EIR’s cumulative hazards analysis was inadequate because it failed to consider sufficiently the cumulative risk of rail accidents. The Final EIR’s response to comments on this issue explained that most of the projects cited by the commenters are located a substantial distance from the refinery and do not involve the transport of liquid propane gas by rail. On appeal, Citizens argued this response was inadequate because “CEQA does not require a nexus between projects or that they be of a similar type to be included in a cumulative impact analysis.” The court found, however, that the County’s explanation for why a cumulative analysis for transportation hazards was not included was not unreasonable, which is all that CEQA requires.

Conclusions and Implications

Because the court applied the deferential “substantial evidence” standard of review to Citizens’ claims, the burden was on Citizens to show that the County lacked substantial evidence to support the EIR’s factual conclusions. Here, the County had taken care to respond in detail to the substantive issues raised in comments on the Draft REIR, thereby providing a road map of the evidence supporting the EIR’s analyses and conclusions. The case thus highlights how thorough responses to comments can “save the day” in litigation.

First Circuit Finds Environmental Review Under Certified Regulatory Program Inadequate

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In Pesticide Action Network North America v. California Department of Pesticide Regulation (2017) 16 Cal.App.5th 224 (republished as modified) the First Appellate District reversed the Alameda Superior Court and found that environmental documents prepared by the California Department of Pesticide Regulation, regarding amended labelling for two pesticides, inadequately analyzed potential impacts on honeybees. The court held that the Department was required to analyze the environmental baseline, alternatives, and cumulative impacts in documents promulgated under CEQA’s exemption for certified regulatory programs (CRP).

The Department of Pesticide Regulation registers all pesticides in California, after evaluating their efficiency and potential for impacts to human health and the environment. The Department has a continuing obligation to reevaluate pesticides, and may cancel a prior registration. Since 2006, there has been a documented widespread collapse of honey bee colonies in the United States. One suspected factor is exposure to pesticides such as dinotefuran, the active ingredient in pesticides sold by the real parties. For this reason, in 2009, the Department initiated the still-ongoing process of reevaluating dinotefuran’s registration. Simultaneously, in 2014, the Department issued public reports for a proposal to amend labels for pesticides containing dinotefuron. The amended labels would allow the pesticides to be used on fruit trees, and in increased quantities. The reports concluded that the use of each pesticide in a manner consistent with the new labels would have no direct or indirect significant adverse environmental impacts, and therefore the Department did not propose alternatives or mitigation measures. The Department issued a final approval of the label amendments in June 2014. Pesticide Action Network filed a petition for writ of mandate in Alameda Superior Court and after a lower court finding for the Department, this appeal followed.

The Department’s pesticide program falls under the CEQA section 21080.5 exemption for CRPs. This exemption permits a state agency to rely on abbreviated environmental review documents, which are the functional equivalent of CEQA documents. Here, the Department issued the functional equivalent of a negative declaration. The standard of review is whether there was a prejudicial abuse of discretion, which is established if the agency did not proceed in a manner required by law, or if the determination is not supported by substantial evidence.

First, the court rejected the Department’s assertion that because it operates a CRP, its functionally-equivalent environmental review documents are otherwise exempt from CEQA’s substantive requirements. The court found that section 21080.5 is a “limited” exemption, and environmental review must otherwise comply with CEQA’s policy goals, substantive requirements, content requirements stated in section 21080.5, and any other CEQA provisions, as well as the Department’s own regulations.

Second, the court found that the Department’s report was inadequate under CEQA because it failed to analyze alternatives and cumulative impacts, and did not describe the environmental baseline. With respect to alternatives, contrary to the Department’s assertion, a functionally-equivalent document prepared under a CRP must consider alternatives, as required by both CEQA and the Department’s own regulations. The Department argued that it did not need to consider alternatives because it concluded there would be no significant environmental impacts. The court explained that the standard for a CRP for determining whether an adverse impact may occur is the same as the “fair argument” standard under CEQA. Furthermore, the content requirements for environmental review under a CRP require that a state agency provide proof–either a checklist or other report–that there will not be adverse effects. The court found that the Department did not produce or consider such evidence.

The court also held that the substantive requirements and broad policy goals of CEQA require assessment of baseline conditions. The Department argued that it had acknowledged and assessed baseline conditions, but the court disagreed. The Department’s baseline discussion was based on one statement that “the uses are already present on the labels of a number of currently registered neonicotinoid containing products.” The court found that this general statement was not sufficient.

The court found that the Department also abused its discretion when it failed to consider cumulative impacts. In its report, the Department simply stated that the cumulative analysis would be put off until the reevaluation was complete. The court found that this one-sentence discussion lacked facts and failed to provide even a brief explanation about how the Department reached its conclusion.

Finally, the court found that the Department is required to recirculate its analysis. Recirculation is required when significant new information is added to an environmental review document, after notice and public comment has occurred, but before the document is certified. The court explained that, in light of the Department’s required reevaluation, its initial public reports on the amended labeling were so “inadequate and conclusory” that public comment on them was “effectively meaningless.”

Pesticide Action Network provides important guidance regarding environmental compliance under a CEQA-exempt CRP. The court emphasized that unless specifically exempt from a CEQA provision, even functionally-equivalent CRP documents must comply with CEQA’s substantive requirements and broad policy goals. Also notable was the court’s application of the “fair argument standard” to the analysis of whether an impact would be significant under the functional equivalent of a negative declaration.

Sixth District Court of Appeal Upholds EIR for a Quarry Reclamation Plan, Rejecting Arguments Under CEQA and SMARA

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On August 31, 2016, the Sixth District issued a decision in Bay Area Clean Environment v. Santa Clara County (previously published at: 2 Cal.App.5th 1197)* upholding the County’s EIR for a quarry reclamation plan. The non-profit challenger asserted claims under the Surface Mining and Reclamation Act (SMARA) and the California Environmental Quality Act (CEQA). The court concluded that the county had not violated either statute.

The 3,510-acre quarry started producing limestone and aggregate in the early 1900s. In 2006, the Department of Conservation concluded that the quarry was violating SMARA because slope instability issues had not been properly addressed in the earlier 1985 reclamation plan. High selenium levels downstream of the quarry also posed a problem. In 2007 and 2010, Real Party in Interest Lehigh Southwest Cement Company applied to the county for amendments to the 1985 plan that would close one pit while allowing for the opening of new mining areas to replace the reclaimed pit. In particular, the 2010 application proposed a new pit called the South Quarry. But, subsequently, Lehigh applied in 2011 for an amendment to the 1985 reclamation plan that closed the problematic pit without proposing any new pits. This 2011 application superseded all earlier applications.

The county prepared an EIR for the reclamation plan amendment and made the requisite findings under both CEQA and SMARA. The county concluded that the project would result in significant and unavoidable impacts of excess selenium runoff during the 20-year period of reclamation. Bay Area Clean Environment and Midpeninsula Regional Open Space District filed challenges to the project. Midpeninsula ultimately settled with Lehigh, but Bay Area Clean Environment appealed the trial court’s denial of its petition for writ of mandate.

The Sixth District Court of Appeal started by addressing the SMARA claims. First, the court concluded that evidence in the record supported the county’s finding that the reclamation plan complies with SMARA with regard to water quality. The court explained that SMARA provided the county with discretion to allow reclamation activities that may result in adverse impacts—such as the additional deposition of selenium in Permanente Creek—if those actions were necessary to comply with federal and state laws. Second, the court held that evidence in the record supported the county’s conclusion that the project’s impacts to red-legged frogs were mitigated to the extent possible.

The court turned to the CEQA claims next. First, the court rejected the challenger’s argument that the county had failed to analyze the cumulative impact of the potential new South Quarry pit that had been proposed in the earlier 2010 application. The court explained that the South Quarry pit was not a reasonably foreseeable future project because the application for a use permit for the new pit had been withdrawn. The court also noted that the county had not engaged in improper piecemealing because the amendment to the reclamation plan was a stand-alone project that did not depend on the future approval of a South Quarry pit.

Second, the court addressed the argument that the county’s findings about impacts to the red-legged frog were insufficient and not supported by substantial evidence. The EIR reported that direct impacts to the frog would be less than significant. The EIR also determined that impacts to aquatic life, of which the frog is included, from excess selenium runoff in the downstream areas would be significant and unavoidable. The court concluded that substantial evidence in the record supported the EIR’s conclusions about both direct and indirect impacts to the frog. The court also held that a statement of overriding considerations for impacts to the frog was not required because the potential direct impacts to the frog were less than significant. Although it is not clear from the opinion, presumably the county adopted a statement of overriding considerations for the significant and unavoidable impact to aquatic life from excess selenium runoff. The court rejected the petitioner’s argument that a statement of overriding considerations directed specifically to the frog was required.

Finally, the court affirmed the trial court’s decision to grant Lehigh’s motion to augment the administrative record. Lehigh had argued that an email between a herpetologist and staff of the Department of Fish and Wildlife (DFW) should be included in the record under Public Resources Code section 21167.6, subdivision (e)(10). In the email, Dr. Mark Jennings explained to DFW staff that his 2007 report contained typographical errors and that he had in fact never observed the red-legged frog in one particular pond. This email was sent to the consulting firm that prepared the biological resources assessment for the EIR. The court concluded that the email could be properly included in the record as evidence of the presence or absence of the frog in the reclamation area that was relied upon by the consultants who prepared the biological study for the EIR.

* Review Denied and Ordered Not to be Officially Published ,December 14, 2016, per Cal. Rules of Court, Rules 8.1105 and 8.1110, 8.1115, 8.1120 and 8.1125.

Second District Orders Publication of Additional Sections of Opinion in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552

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On May 9, 2012, the Second District published parts 5-8 of its opinion in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2012) 205 Cal.App.4th 552. These sections featured Petitioner’s claims of inadequate CEQA analysis for cumulative impacts, mitigation measures, alternatives, and recirculation. In each case, the court found in favor of Respondent Metro. Parts 3 and 4 of the opinion remain unpublished.

Cumulative impacts

Petitioner argued that the cumulative traffic analysis in Metro’s Environmental Impact Report (EIR) was inadequate because it failed to consider traffic impacts of related projects. Under CEQA, an EIR must discuss cumulative impacts of a project if the project’s incremental effects are cumulatively significant, that is, if the project’s effects are significant when considered together with related effects of past, current, and probable future projects. Metro’s EIR did not separately assess cumulative traffic impacts since the discussion of the traffic impacts of the project itself was already cumulative, in that it was based on a combination of existing and future conditions with and without the project.

The court held that in analyzing cumulative impacts, the agency’s discussion should note the severity of the impacts and likelihood of their occurrence, but need not provide the same level of detail as is provided for the effect of the main project. Thus, for example, Metro’s “summary of [project] projections” did not need to include analyses specific intersections that were not under environmental review when the draft EIR was circulated.

Mitigation

Petitioner also argued that Metro failed to provide adequate mitigation measures and improperly deferred mitigation for parking, noise, safety, and construction.  The court found that the EIR’s mitigation measures were not uncertain, speculative, or infeasible, and found no evidence that the measures would be ineffective, unfunded, or not implemented.

To address spillover parking, Metro adopted a measure to monitor parking activity and work with local jurisdictions to create permit parking programs where necessary. The EIR noted that Metro would reimburse local jurisdictions for these programs. The agency included alternative mitigation options such as metered parking where a permit program would not suffice. Petitioner argued that Metro could not assure formation or effectiveness of the permit program, and that such a program would be inadequate unless it retained residents’ current ability to park in their neighborhoods. The court disagreed. The court distinguished this case from Gray v. County of Madera (2008) 167 Cal.App.4th 1099, where a mitigation measure proposing to provide bottled water to compensate for a decline in water levels “defie[d] common sense” and was not substantially similar to residents’ pre-project conditions. In contrast, residents here would still have street parking, making their situation substantially similar to pre-project conditions. Additionally, the court refused to assume that simply because Metro could not require local jurisdictions to adopt the permit program, the mitigation measure was inadequate. The mitigation set for the a specific performance standard in the form of monitoring parking activity to determine if the light rail activity would increase parking utilization to 100 percent and, if so, requiring Metro to work with local jurisdictions regarding permit parking programs. Citing the second prong of Section 21081(a), which allows an agency to make a finding regarding a significant effect that changes lie within another agency’s jurisdiction, the court noted that the feact that Metro could not require a local jurisdiction to adopt a permit program, did not make the mitigation measure inadequate.

Metro’s EIR addressed removal of street parking with measures that included replacement parking and revised parking designs, such as diagonal parking. Petitioner contended a lack of evidence that such measures were feasible, given high land costs, or would actually be implemented. Unlike in Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, there was no acknowledgement by Metro of any “great uncertainty” as to whether mitigation would ultimately be funded or implemented. The court also noted Petitioner’s failure to challenge the EIR’s financial evaluation of Metro’s ability to build the project, which included allowance for mitigation measures. Since the mitigation explicitly stated that property would have to be acquired for replacement parking, and identified parcels for that purpose, the court found the mitigation measures were not uncertain or speculative and petitioner failed to meet its burden to identify any deficiency.

In anticipation of noise and vibration effects from the project, Metro’s mitigation measures included installation of sound walls alongside the rail line. The agency added that where those walls would not suffice, it would provide for sound insulation of residences to meet the applicable noise threshold. Petitioner again argued that the measure lacked evidence of feasibility, and did not include details on how such improvements would be provided. The Court rejected Petitioner’s arguments, finding that CEQA does not require a lead agency to detail how it will actually carry out the proposed mitigation measure, so long as it commits to satisfying specific performance criteria. Metro was also not required to restore residents to their original position and eliminate noise and vibration completely; the agency merely had to minimize impacts to less-than-significant levels.

Metro included mitigation measures to address safety impacts, such as coordination with affected cities and encouragement of emergency response updates, which had been successfully implemented on other Metro rail lines. Though Petitioner repeated its argument of lack of proof of effectiveness and actual implementation, the Court saw no reason to conclude that cities would fail to update their emergency response procedures as other municipalities had done in the past.

Finally, the EIR identified possible closure of lanes in major streets during project construction, and proposed providing alternative lanes on cross streets in cooperation with the cities, as well as limiting construction to nights and weekends. Petitioner argued that these measures improperly deferred mitigation and did not include performance standards. The Court countered that limiting street closure to weekend and evening hours was an acceptable performance standard. Moreover, Metro’s required compliance with traffic control plans formulated in cooperation with affected jurisdictions and in accordance with specified manuals offered additional performance standards.

Alternatives

Petitioner claimed that Metro’s failure to include a detailed examination of grade separation in a particular segment of the project resulted in an inadequate consideration of project alternatives. The court disagreed, finding the EIR evaluated a reasonable range of alternatives and no inadequacy in the EIR’s failure to include a detailed examination of the suggested alternative. Detailed analysis of the suggested alternative was neither required, since the proposed project on its own would decrease environmental impacts to a less-than-significant level, and the suggested alternative would not have offered substantial environmental advantages over the proposed project.

Recirculation

Finally, Petitioner argued that the Final EIR reflected major changes to the project made after circulation of the draft, requiring recirculation of the EIR for further public comment. Such changes included new information on grade separation at various intersections; signal phasing at one intersection; parking; and noise impacts. CEQA requires recirculation of an EIR when significant new information is added, such that the public is deprived of a meaningful opportunity to comment upon a substantial adverse environmental effect. The court found that the added information did not disclose a new substantial environmental impact or a substantial increase in severity of one of the project’s impacts. The court highlighted the fact that Petitioner did not identify how the new information would undermine Metro’s less-than-significant-impact conclusions. Thus, Metro’s decision not to recirculate was supported by substantial evidence.

 

The summary of the baseline portion of this decision can be read here:

http://rmmenvirolaw.flywheelsites.com/2012/04/second-district-upholds-agency-use-of-projected-future-condition-for-environmental-baseline/

First District Upholds State Lands Commission’s Use of Environmental Baseline for Renewal of Existing Marine Terminal Operations

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Citizens for East Shore Parks v. California State Lands Commission
(2011) – Cal.App.4th – [2011 Cal. App. LEXIS 1645]

The First District Court of Appeal ruled that an EIR prepared by the State Lands Commission for the renewal of an existing marine terminal used a proper environmental baseline in assuming the continued existence and operation of the terminal; thus, the EIR did not need to assume the terminal would discontinue operations, even though that would occur if the Commission did not renew the lease.

In 1998, Chevron applied to the State Lands Commission to renew the lease for an existing wharf serving Chevron’s refinery located in the City of Richmond.  The Commission embarked on the CEQA process.  Initially, the Commission decided to prepare the EIR assuming that the physical wharf would remain in place, but that operations there would cease.  Over time, the Commission’s position evolved, such that the “baseline” would consist not merely of the physical wharf, but also of ongoing operations.  Using this baseline, the Commission determined the lease renewal could result in significant environmental impacts associated with the risk of oil spills.  In 2007, the Commission released the Final EIR.  In 2009, the Commission certified the EIR, approved the lease renewal, and adopted a statement of overriding considerations.  The “Citizens” sued.  The trial court denied the petition.  The Citizens appealed.

First, the Citizens argued the Commission’s EIR used the wrong baseline, claiming the baseline should have excluded use of the marine terminal.  In this case, the baseline consisted of “existing conditions” at the time the Commission prepared the EIR.  Those conditions included an operating marine terminal.  The Citizens argued, however, that a different rule applied in the context of a permit renewal, since the agency could cause operations to cease simply by declining to renew the lease.  Moreover, because the construction and operation of the terminal predated CEQA, they had never undergone environmental review.  The Court rejected this argument, reasoning that, under the California Supreme Court’s decision in Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, the Commission properly focused on existing conditions, not conditions that may have existed decades in the past.  The record showed the Commission’s approach was consistent with permit renewals elsewhere in the Bay Area, and accurately reflected actual operations at the terminal.  Nor was the Commission bound by its initial determination regarding the proper baseline:  “Administrative agencies not only can, but should, make appropriate adjustments, including to the baseline, as the environmental review process unfolds.”

Second, the Citizens argued the EIR should have analyzed an alternative consisting of removing the causeway connecting the terminal to the refinery, and instead burying pipelines.  According to the Citizens, such an alternative would have avoided the project’s impacts on recreation by removing an obstruction to a bay trail.  The Court disagreed, noting that because the causeway was part of the baseline, the EIR properly concluded the lease renewal would not have significant impacts on recreation.  Similarly, the Final EIR’s responses to comments on recreational impacts were adequate, since the lease renewal did not involve new construction that would impact recreation.

Third, the Citizens argued the EIR’s project description should have encompassed the entire refinery, rather than just continued use of the marine terminal.  The evidence showed, however, that the lease renewal was the only action before the Commission, and the Commission had not “chopped up” the project as a means of evading CEQA review.

Fourth, the Citizens argued the EIR’s analysis of cumulative water discharge impacts was flawed.  The Court disagreed, noting that water discharges were part of the existing wharf operation, and therefore part of the baseline.  For the same reason, the EIR did not need to analyze whether the lease renewal was consistent with State legislation calling for establishing a “water trail” around San Francisco Bay.  Moreover, the EIR noted plans to establish a land-trail around the Bay, passing through upland areas adjacent to the terminal.  The Commission urged discussions to establish a route through the refinery for this trail, and Chevron designated a site and committed $2 million to this effort.  Given that the Commission had no jurisdiction over upland areas, the Commission’s efforts sufficed.  The record also showed the Commission consulted with trustee agencies by sending the agencies copies of the Draft EIR.

Finally, the Citizens argued that, under the Public Trust Doctrine, the Commission was required, to undertake an additional review process and impose additional mitigation conditions.  The Court disagreed, holding that, where the Commission’s decision “continued a permissible and long-standing trust use” and the Commission performed an adequate analysis under CEQA, “there was no violation of the public trust doctrine.”