This article highlights the 2009 CEQA court decisions along with the proposed changes to the CEQA guidelines. Many of the highlights are linked to more detailed analyses prepared by the attorneys at Abbott & Kindermann, LLP.
Failure to complete the EIR within CEQA’s statutory one year period did not result in project approval. A writ will not lie to compel certification of a DEIR. Schellinger Brothers v. City of Sebastopol (Dec. 2, 2009, No. A122972) __Cal.App.4th__.
The lead agency is not required to complete an EIR in order to deny a project. Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837.
IS IT A PROJECT?
Ministerial v. Discretionary Approvals
In Health First v. March Joint Powers Authority (2009) 174 Cal.App.4th 1135, the court addressed whether the approval of a Design Plan Application was ministerial or discretionary. If the agency’s action is ministerial, CEQA does not apply. Because the application had to be approved as long as it conformed to the Design Guidelines, the court held that the action was ministerial and no CEQA review was required. The underlying project for which the application was submitted involved a business center located in the March Business Center Specific Plan Area, which was consistent with the General Plan for the former March Air Force Base. The Base General Plan conformed to the redevelopment plan. The court emphasized that at each step in the planning process, environmental review and receipt of public comment occurred, and if the plaintiffs wanted to challenge the projects on CEQA grounds, they needed to do so at any or all of those stages.
Life is largely about timing, and CEQA practice is no exception. Lead agencies have to find the balance of conducting meaningful environmental review such that it is neither too early to be meaningful, nor so late that the project gains momentum to the preclusion of effective consideration of alternatives and mitigation measures. In 2008, the California Supreme Court addressed this issue in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116. The court enunciated the general principle that prior to conducting CEQA review, “agencies must not take any action that significantly furthers a project in a manner that forecloses alternatives or mitigation measures that would ordinarily be part of CEQA review of that public project.” Applying this principle to a measure imposing a retail sales and use tax submitted to the voters to fund transportation projects, the court in Sustainable Transportation Advocates of Santa Barbara v. Santa Barbara County Association of Governments (2009) 179 Cal.App.4th 113, held that the measure and its Transportation Investment Plan did not constitute a project under CEQA because there lacked binding commitments to a specific project.
Project Pre-approval Mitigation Agreements
The decision in Riverwatch v. Olivenhain Municipal Water District (2009) 170 Cal.App.4th 1186, applies CEQA’s early timing requirements in a different setting. A developer, having lost one CEQA case on the basis of the water supply analysis, entered into a long term agreement with a district to purchase recycled water, intending to use this agreement to remedy the deficiencies in its water supply analysis. Project opponents then challenged the recycled water agreement on the basis that the district had failed to conduct CEQA review on the agreement before entering into it. The appellate court agreed with the opponents, underscoring the need for agencies to closely consider CEQA ramifications on all agreements, no matter how worthy the purpose. As the saying goes, no good deed goes unpunished.
Generally, exemptions from CEQA must be justified and are narrowly construed. In Great Oaks Water Co. v. Santa Clara Valley Water Dist. (2009) 170 Cal.App.4th 956, the court addressed the use of an exemption (Public Resources Code section 21080(b)(8)) for rate setting for groundwater extraction charges. In upholding the use of the exemption, the court first ruled that highly detailed findings justifying the use of the exemption were not mandated, as long as the court could understand the analytic route the “agency travelled from evidence to action.” While more detail is preferable to less detail, the ultimate question is whether the court, from reviewing the record, findings, and decision, can understand the agency’s action. Second, the exemption for rate setting cannot be used for system expansion. On this issue, the record was very clear that the rates were used for delivery reliability improvements and were not for funding system expansion. The key here, as always, is the staff report.
Adoption of Air Emission Regulation
An air district’s adoption of a rule addressing offsets for road paving is not exempt from CEQA. As implementation of the challenged rule would result in paving, leading to potential adverse physical changes in the environment, the appellate court concluded that there was insufficient evidence to support a finding that the rule would “assure the variance, restoration, enhancement or protection of the environment.” Guidelines, § 15308. California Unions for Reliable Energy v. Mojave Desert Air Quality Mgmt. District (Nov. 16, 2009, No. E046687) __ Cal.App.4th___.
The denial of a conditional use permit renewal is exempt from CEQA review. Sunset Sky Ranch Pilots Association v. County of Sacramento (2009) ___ Cal.App.4th ___.
Fair Argument Test
The fair argument test for EIRs remains alive and well, even for “clarifying” amendments to previously adopted general plan policy. Of course, one person’s clarification is another person’s amendment. Inyo Citizens for Better Planning v. Inyo County Board of Supervisors (Dec. 14, 2009, No. E046646) __Cal.App.4th__.
Impact Fees as Mitigation Measures
The California Native Plant Society filed a CEQA lawsuit against El Dorado County after the County approved a Mitigated Negative Declaration and Congregate Care project. The project consists of two care units, cottages, and a clubhouse on 20 acres, and was part of a larger development area including a local medical center, a senior assisted living facility, medical office buildings and a local retail shopping center. Mitigation for project impacts to sensitive plant species included the payment of a $135,000 mitigation fee established by a County ordinance in 1998. The court held that the ordinance did not presumptively establish full mitigation for any specific project given that the ordinance did not undergo any independent environmental review, and the County violated its own mitigation strategy by failing to conduct annual reviews of the fee amount and efficacy of the fee program. California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026.
Castaic Water Agency did not improperly piecemeal by preparing and EIR for transfer of water from Kern County Water Agency to Castaic Water Agency that was separate from the EIR. The Department of Water Resources was preparing for the Monterey Agreement. The preparation of a separate EIR was proper because substantial evidence showed the project had significant independant local utility in view of its benefits to Castaic's service area and the relative from the autonomy Monterey Agreement. Planning and Conservation League v. Castaic Water Agency (2009) 180 Cal.App.4th 210.
Performance Standards as Mitigation Measures
In California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, the Court reviewed an EIR for a project named The Preserve at Sunridge. The Preserve involved the development of approximately 530 acres in Rancho Cordova, California as single and multi-family housing, commercial and office uses, a neighborhood park, an elementary school, detention basins, an open space and wetland preserve, bikeways and pedestrian and drainage corridors. The Court of Appeal addressed the following issues presented by the plaintiffs: 1) offsite mitigation measures; 2) deferral of mitigation for loss of vernal pools and wetlands; 3) sufficiency of the evidence regarding proposed mitigation for vernal pools and wetlands; 4) the sufficiency of the water supply analysis; 5) a post-project approval amendment of mitigation measures; and 6) general plan consistency. The City prevailed on all issues but the general plan consistency issue pertaining to whether or not the City properly “coordinated” with the United States Fish and Wildlife Service as called for in the planning document. The lesson to be learned is to watch the choice of verbs in planning documents.
Energy Efficiency and Traffic Impacts in Adjacent Jurisdictions
In Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912, an EIR for a grocery superstore was upheld against attacks based upon alleged inadequacy of alternatives, project segmentation, energy impacts, and failure to mitigate traffic impacts in an adjacent jurisdiction. The case includes a number of noteworthy CEQA determinations. First, a lead agency can reasonably conclude that a project which exceeds state energy efficiency standards has a less than significant impact. Second, a city is not required to demand mitigation for extraterritorial traffic impacts where the lead agency lacks control over the intersection and the affected jurisdiction lacks a program for expenditure of traffic impact fees for the necessary improvement.
The no project alternative is only required to analyize the status quo. In Planning and Conservation League v. Castaic Water Agency, the parties were operating under the Monterey Agreement, therefore in preparing the EIR for the transfer of water from Kern Water Agency to Castaic Water Agency, Castaic was only required to analyze a no-project alternative scenario in which the transfer did not take place. Castaic was not required to analyze a scenario in which the Monterey Agreement was not in effect and the transfer did not take place. Planning and Conservation League v. Castaic Water Agency (2009) 180 Cal.App4th 210.
An EIR is not invalid because project alternatives selected to be studied as part of the EIR prove to be infeasible. At the time the DEIR is released, the CEQA documentation focuses on potentially feasible alternatives. This does not preclude the decision makers from adopting appropriate findings, based upon substantial evidence, as to the infeasibility of the studied alternatives. From a practical perspective, good findings are the first line of defense. California Native Plant Society v. City of Santa Cruz (2009)177 Cal.App.4th 957.
If a lead agency considers but rejects various onsite and offsite alternatives, it is essential to include in the record information about the rejected alternatives. The use of a matrix to compare alternatives is an acceptable practice. City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889.
The lead agency was not required to examine a smaller grocery store as an alternative when the record does not establish that a smaller store would reduce impacts. Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912.
Cumulative Impact Analysis
The geographic scope of a cumulative impact analysis falls to the agency’s discretion. The boundaries may (and in many cases should) vary according to the impact being studied. Absent an arbitrary decision, the agency’s decision should not be set aside. This case reflects a thoughtful, well considered approach to cumulative effects analysis in an urban setting. City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889.
Air Quality – Cumulative Effects
CEQA requires an assessment of the project on the environment, not of the environment on the project. City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889.
Analysis of Consistency with the General Plan
As a school district can exempt itself from compliance with local general plans and zoning, a school district EIR on a new high school site is not required to address the issue of conformity with local plans. City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889.
FEIR Responses to Comments
Lead agencies have to walk a fine line in preparing responses to comments. On one hand, the public cannot be expected to sift through numerous obscure documents (the proverbial “scavenger hunt”) to understand the response to comment. On the other, the use of master responses or referrals to other responses to comments which are on point is an acceptable practice. City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889.
Statements of Overriding Considerations
Statements of overriding considerations are entitled to substantial deference by a reviewing court. CEQA permits the lead agency extensive discretion in identifying the relevant considerations which enter into the “overriding considerations.” California Native Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957.
Exhaustion of Administrative Remedies
The California Court of Appeal has issued two opinions requiring project opponents to present relatively specific objections to CEQA documents in order to later litigate those issues. California Native Plant Society v. City of Rancho Cordova (2009) 170 Cal.App.4th 1026 and Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912.
Standard of review
The substantial evidence test applies to conclusions, findings and challenges to scope of EIR analyses, the methodology used for studies, and the accuracy of data. City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App.4th 889.
In writ proceedings, the use of judicial notice to bring evidence not included within the administrative record before the court is disfavored. California Unions for Reliable Energy v. Mojave Desert Air Quality Mgmt. District (Nov. 16, 2009, No. E046687) __ Cal.App.4th.__.
Statute of Limitations
Strother v. California Coastal Commission (2009) 173 Cal.App.4th 873, involved challenges to the approval of coastal development permits by the California Coastal Commission. The only issue before the court was whether the statute of limitations under the California Coastal Act of 1976 or under CEQA applied. If the Coastal Act statute of limitations applied, plaintiffs would have been barred from bringing suit. The court held that the statute of limitations under CEQA applied to any challenges brought under that act, and the remaining claims were dismissed for failure to bring suit within the statutory period prescribed by the Coastal Act.
Request for Hearing
The 90 day request for hearing provision requires a written submittal to the court along with the others parties. Oral communication with the court clerk is not sufficient. County of Sacramento v. Superior Court (2009) ___ Cal.App.4th ___.
Sharing Documents and Discovery
When defending challenges to projects, lead agencies often coordinate the defense with the applicant. The appellate court made that process a little easier by holding that the disclosure of documents to the real party in interest, when necessary to accomplish the purpose for which the lawyer was hired (defense of the CEQA lawsuit), does not waive the attorney-client privilege. California Oak Foundation v. County of Tehama et al. (2009) 174 Cal.App.4th 1217. The court found that disclosure to a codefendant in a joint endeavor to defend an EIR in litigation can reasonably be said to constitute the involvement of a third person to whom disclosure is reasonably necessary to further the purpose of the original legal consultation and thus the communications remained protected. Additionally, the court rejected petitioner’s contention that Public Resources Code section 21167.6 overrode claims of privilege, holding that a new statute (Section 21167.6) is not an abrogation of an existing statute (e.g. Evidence Code section 954) unless it is clear that the later enactment is intended to supersede the existing law.
Preparing the Administrative Record for Litigation
Effective January 1, 2010, new Rules of Court govern the preparation of the record in CEQA lawsuits. Rules 3.1365-3.1368. The new rules include provisions for preparation of the index, the order of documents, double sided printing, and length of volumes.
EIR Preparation – Consultant Liability
An EIR consultant to a county who fails to timely complete an EIR on a private project is not liable for damages under theories of third party beneficiary, negligence and negligent interference with prospective economic advantage. Too bad! Lake Almanor Associates, LP v. Huffman-Broadway Group, Inc. (2009) 178 Cal.App.4th 1194.
CEQA Guidelines for the Mitigation of Greenhouse Gases
On December 30, 2009, the Natural Resources Agency adopted CEQA Guideline Amendments for the quantification and mitigation greenhouse gas emmissions. The Amendments require the following:
- A lead agency must make a "good-faith effort, based to the extent possible on scientific and factual data, to describe, calculate or estimate the amount of greenhouse gas emmissions resulting from a project." The agency may use a quantitative or qualitiver analysis. (§ 15064.4(a).)
- An EIR must discuss any inconsistencies between the proposed project and regional blueprint plans and plans for GHG emission reduction. (§ 15125 (a).)
Senate Bill 97 (Chapter 185, Statutes 2007; Pub. Resources Code, § 21083.05) required that the Resources Agency certify and adopt the revised guidelines by January 1, 2010. The Resources Agency transmitted revised guidelines, to the Office of Administrative Law, which has 30 working days to review the guidelines and transmit them to the Secretary of State. Once transmitted to the Secretary, the guidelines will not become effective for 30 days, and do not become binding on public agencies until the effective date of the agency’s procedures amended to conform to the new guideline amendments or the 120th day after the effective date of the amendment, whichever is earlier. Guidelines, § 15007(d). The amendments will apply prospectively only – only steps not yet taken in the CEQA process will have to comply with them. Guidelines, § 15007(b).
San Joaquin Valley Air Pollution Control District Introduces Thresholds for GHG
On December 17, 2009, the SJVAPCD adopted Addressing Greenhouse Gas Emissions Impacts Under the California Environmental Quality Act, which proposes performance based thresholds of significance for stationary sources and development projects. The thresholds will be based on best performance standards or "BPS." BPS are yet to be determined, but once they are, projects complying with them would be considered to have a less than significant impact.
The California Attorney General has expressed opposition to this strategy claiming it leaves a number of unanswered questions including:
- What defined, relevant environmental objective is the threshold designed to meet, and what evidence supports selection of that objective?
- How does the threshold take into account the presumptive need for new development to be more GHG-efficient than existing development?
- Will the threshold routinuely require new projects to consider mitigation beyond what is already required by law?
For more information about the 2009 legal landscape, join us for Abbott & Kindermann’s Annual Real Estate, Land Use, and Environmental Law Conference, held this year in Sacramento, Modesto, and Redding California.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.