October 2016

Alaska Oil & Gas Assn. v. Pritzker, ___ F.3d. ___, 2016 U.S. App. LEXIS 19084 (9th Cir., case nos. 14-35806, 14-35811, Oct. 24, 2016).

By Glen Hansen

In 2008, the Center for Biological Diversity (“CBD”) filed a petition requesting that the U.S. Secretary of Commerce list three “sea ice seal” species as endangered or threatened under the federal Endangered Species Act (“ESA”), 16 U.S.C. §§ 1531-44. The National Marine Fisheries Service (“NMFS”) concluded that the Okhotsk and Beringia distinct population segments (“DPS”) of the Pacific bearded seal subspecies were “likely to become . . . endangered species within the foreseeable future throughout . . . a significant portion of [their] range.” Plaintiffs Alaska Oil and Gas Association (“AOGA”), the State of Alaska, and North Slope Borough (collectively, “Plaintiffs”) filed separate lawsuits in the United States District Court for the District of Alaska challenging the listing decision. Plaintiffs alleged that the listing decision was not based on the “best scientific and commercial data available” in violation of 16 U.S.C. § 1533(b)(1)(A); that the population of bearded seals was plentiful; that a lack of reliable population data made it impossible to determine an extinction threshold; that NMFS’s use of predictive climate projections beyond 2050 were speculative; that NMFS had unreasonably “changed tack” from its previous Arctic sea-ice listing decisions; and that NMFS had failed to demonstrate a causal connection between the loss of sea ice and the impact of that loss to the Okhotsk and Beringia DPS’s viability.

The District Court granted summary judgment to Plaintiffs on their challenge to NMFS’s decision to list the Beringia DPS as a threatened species because NMFS’s long-term climate projections were volatile and the agency lacked data on the bearded seal’s adaptability and population trends, including “a specified time” at which the seal would reach an extinction threshold.  (Alaska Oil & Gas Ass’n v. Pritzker, No. 4:13-cv-18-RRB, 2014 U.S. Dist. LEXIS 101446 (D. Alaska, July 25, 2014).)  The District Court pointed out that “NMFS acknowledged that it lacks sufficient data on the resilience of bearded seals to cope with climatic changes; or to define an extinction threshold for bearded seals and assessing the probability of reaching that threshold within a specified time; and that, because the existing body of information regarding bearded seal population and trends was limited, additional studies were needed to understand the population dynamics and habitat of the bearded seal.” The District court added:

Troubling to this Court is that it does not appear from the Listing Rule that any serious threat of a reduction in the population of the Beringia DPS, let alone extinction, exists prior to the end of the 21st century.  Indeed, the Listing Rule itself concedes that, at least through mid-21st century, there will be sufficient sea-ice to sustain the Beringia DPS at or near its current population levels.  Indeed, with respect to the second half of the century it appears that no significant threat to the Beringia DPS is contemplated before 2090.  Even as to that date, NMFS acknowledges that it lacks any reliable data as to the actual impact on the bearded seal population as a result of the loss of sea-ice. Under the facts in this case, forecasting more than 50 years into the future is simply too speculative and remote to support a determination that the bearded seal is in danger of becoming extinct.

NMFS and CBD appealed the District Court decision. The Ninth Circuit reversed.

The Court of Appeals described the key issue on appeal as follows: “When NMFS determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, may NMFS list that species as threatened under the Endangered Species Act?” The standard of review that the court applied in this case was significant because it required a “high threshold for setting aside agency action.” Specifically, the court stated that it “will affirm that action ‘so long as the agency “considered the relevant factors and articulated a rational connection between the facts found and the choices made.”’” The court ultimately held that, “[i]n light of the robustness of NMFS’s rulemaking process, as well as our highly deferential standard of review, we hold that NMFS’s final rule listing the Beringia DPS as threatened was not arbitrary or capricious, and its listing decision was supported by substantial evidence.”

The court described that “rulemaking process” and the “substantial evidence” in support of NMFS’ decision as follows:

NMFS established a Biological Review Team of eight marine mammal biologists, a fishery biologist, a marine chemist, and a climate scientist to review the status of the “best scientific and commercial data available” regarding bearded seals. NMFS solicited four scientists to conduct independent peer reviews of the Review Team’s report. … The review concluded that bearded seals generally prefer to hunt organisms found on the ocean floor. As a result, the seals prefer to congregate where non-contiguous sea ice floes appear over shallow water between 50 to 200 meters deep, and the seals avoid “unbroken, heavy, drifting ice or large areas of multi-year ice” located over deeper waters. The seals use ice floes to give birth (whelp) and to nurse their pups; to allow mothers close access to food sources while nursing; to enable their pups to gain experience with diving, swimming, and hunting away from their predators; to provide a location for males to attempt to attract females; and to provide a platform where male seals can rest while molting.  [¶] Using observational and predictive data from the Intergovernmental Panel on Climate Change’s (“IPCC”) Fourth Assessment Report, NMFS used six climate models to determine when the Beringia DPS’s sea ice habitat would degrade to such an extent that it would render the Beringia DPS endangered, and it made available for public review its methodology and data. … [¶] After considering thousands of comments to the proposed rule, NMFS extended the review period and sought additional independent peer reviews of the sections of the status review report that generated the greatest disagreement among peer reviewers–the timing and magnitude of climate change effects on the availability of sea ice in the Bering Sea. NMFS additionally updated its climate predictions to include studies published after the Proposed Listing Rule. NMFS also held public hearings in Anchorage, Barrow, and Nome to solicit comments.

The court continued:

Having concluded that the availability of sea ice in shallow water was crucial to the Beringia DPS’s viability, NMFS evaluated several climate models to determine the magnitude and timing of climate change’s impact on the availability of sea ice in areas inhabited by the Beringia DPS.  … [¶][¶] …The IPCC’s climate models for 2050 to 2100, showed greater volatility, and thus less reliable predictive value, in the Arctic. And so NMFS used two models considered to be particularly reliable with respect to Arctic sea ice, and it used “medium” and “high” emissions scenarios to project monthly sea ice concentrations between March and July for each decade, beginning in 2025 and ending in 2095. After confirming the models’ accuracy, NMFS applied each to the areas occupied by the Beringia DPS to determine the range of temperatures per month from 2050 to 2100, and used those temperature projections to determine the impact of local warming on sea ice melt. NMFS’s projections demonstrated that by May and June 2050, there would be no sea ice in the Bering Strait, the East Siberian Shelf, or the Barents or Bering Seas.  By July 2050, sea ice would recede to less than 20% of the mean or disappear entirely from the Beaufort, Chukchi, and East Siberian seas. Most dramatically, by the time NMFS sought a second round of public comment on its climate projections, sea ice scientists published research indicating there would be “[a] nearly sea ice free summer Arctic by mid-century.”

Plaintiffs argued that NMFS used climate models that cannot reliably predict the degree of global warming beyond 2050 or the effect of that warming on a subregion, such as the Arctic.  However, the court explained that in earlier cases “we adopted the D.C. Circuit’s holding that the IPCC climate models constituted the ‘best available science’ and reasonably supported the determination that a species reliant on sea ice likely would become endangered in the foreseeable future.”  Here, the court explained, “NMFS provided ample evidence of significant sea ice loss from 2007 to 2050, a period in which specific data supports the IPCC climate projections. Those projections indicate that during months in which bearded seals used that ice for ‘critical life events’ such as mating, birthing, and nursing, most Beringia DPS habitats will have lost most, if not all, of their sea ice. … NMFS’s projections for the second-half of the century are also reasonable, scientifically sound, and supported by evidence.”

In response to the District Court’s conclusion about agency speculation, the Ninth Circuit stated that the ESA “does not require NMFS to base its decision on ironclad evidence when it determines that a species is likely to become endangered in the foreseeable future; it simply requires the agency to consider the best and most reliable scientific and commercial data and to identify the limits of that data when making a listing determination.”  The appellate panel rejected what it called the District Court’s “request for unobtainable, highly specified data would require NMFS to wait until it had quantitative data reflecting a species’ decline, its population tipping point, and the exact year in which that tipping point would occur before it could adopt conservation policies to prevent that species’ decline.”  The court explained that “the ESA does not require an agency to quantify population losses, the magnitude of risk, or a projected ‘extinction date’ or ‘extinction threshold’ to determine whether a species is ‘more likely than not’ to become endangered in the foreseeable future.”  In this case, the court concluded, “NMFS has demonstrated that it ‘considered the relevant factors and articulated a rational connection between the facts found and the choices made.’ That is all the ESA requires.”  Accordingly, the Ninth Circuit reversed the District Court’s grant of summary judgment in favor of Plaintiffs.

Comment:

The case could have far-reaching results. Using unequivocal – but politically controversial – language to describe climate change issues, the Court of Appeal stated:  “There is no debate that temperatures will continue to increase over the remainder of the century and that the effects will be particularly acute in the Arctic. The current scientific consensus is that Arctic sea ice will continue to recede through 2100, and NMFS considered the best available research to reach that conclusion.” (Emphasis added.) An attorney for the state of Alaska noted: “If this opinion stands, [NMFS] would list a species that is abundant and in good health based on the claim that climate change will impact habitat over the next 100 years and may cause harm.”

Like the District Court in this case, numerous other courts and judges have deemed long-range climate change projections as too speculative. (See e.g., Coalition for Responsible Regulation, Inc. v. EPA, 2012 U.S. App. LEXIS 25997 at *42, den. reh’g en banc (D.C.Cir., case no. 09-1322, Dec. 20, 2011)(J. Brown, dissenting) [“any harm to human health and welfare flowing from  climate change comes at the end of a long speculative chain”]; Center for Biological Diversity v. U.S. Dept. of the Interior, 563 F.3d 466, 478, (D.C. Cir. 2009) (holding that the plaintiffs’ concern that “significant adverse effects of climate change ‘may’ occur at some point in the future” was insufficient to constitute an “actual, imminent, or ‘certainly impending injury’ required to establish standing”);  Oceana, Inc. v. Pritzker, 125 F.Supp.3d 232, 351 (D.D.C. 2015) [as to impacts on a population of sea turtles, NMFS admitted that “[l]onger-term effects of the fishery and climate change . . . are speculative and difficult to extrapolate beyond ten years”]; Alliance for the Wild Rockies v. Austin, 55 F.Supp.3d 1294, 1309 (D.Mont. 2014) [“Very generally, the Fish & Wildlife Service determined that the potential effects of climate change on the North American wolverine population are too speculative at this time to warrant listing pursuant to the factors in 16 U.S.C. § 1533(a)(1)(A)-(E)”].)  However, the Ninth Circuit now appears to have changed that analysis with this declaration in this case:  “The fact that climate projections for 2050 through 2100 may be volatile does not deprive those projections of value in the rulemaking process.”  As a staff attorney for CBD stated, “This legal victory is likely to have major implications for many other climate-threatened species.”  The implications of the Ninth Circuit’s position for future agency decisions in the areas of environmental, land use and natural resources law could be significant.

Glen Hansen is Senior Counsel at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or 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.

 

Friends of the College of San Mateo Gardens v. San Mateo Community College Dist. (2016) 1 Cal.5th 937.

By William W. Abbott

The California Supreme Court has solved one of CEQA’s great riddles: when a project is modified after the original CEQA documentation and initial project approval, which standard of review applies? In a decision which will boost the confidence of lead agencies, the Court applied the more deferential substantial evidence test under the authority of Public Resources Code Section 21166 and Guidelines Section 15162.

The facts begin in 2006 with the adoption of a master plan for the San Mateo Community College District, calling for over one billion dollars in investment districtwide. This master plan was based upon an Environmental Impact Report. As to the College of San Mateo campus, the plan called for renovation of the Building 20 complex and demolition of others. In 2007, the District approved a negative declaration for the improvements at the San Mateo campus. In 2011, being unsuccessful in obtaining funding, the College modified its plans, planning on demolishing the Building 20 complex and associated gardens, and renovating other buildings. This decision was based upon the 2007 negative declaration coupled with an addendum. Project opponents filed suit, and the District rescinded its addendum and reissued a new addendum with a more in-depth analysis, but reaching the same conclusion. Opponents dismissed the first case and refiled a new lawsuit challenging the revised plans on CEQA grounds. At the opponents’ urging, the trial court concluded that the revisions constituted a new project, ordered the approvals set aside, and directed the District to prepare an EIR. The Court of Appeal concurred (relying primarily on Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288) to decide that as a matter of law the proposed building demolition was a new project. The California Supreme granted review and reversed.

The Supreme Court’s decision is notable in several respects. First, the Court was emphatic that a decision of whether or not a proposed activity was a new project was predominately a factual question to be made by the decision making body, not a reviewing court. “It is thus a question for the agency to answer in the first instance, drawing on its particular expertise….A court’s task on review is then to decide whether the agency’s determination is supported by substantial evidence; the court’s job’ is not to weigh conflicting evidence and determine who has the better argument.’ ” The opponents also argued that Public Resources Code Section 21166 and Guidelines Section 15162 could only be invoked following the use of an EIR and therefore had no application in this instance based upon a negative declaration. Citing the legislative history, the Court rejected this argument. Finally, the opponents argued the substantial evidence test was inappropriate in circumstances of a tiered CEQA document, pointing to the master plan as the first tier. The record did not support this characterization, as the 2007 approval was a project-level decision.

As is often the case, the CEQA debate over this project approval was not over with the Supreme Court’s decision. Upon remand, the courts will have to address the unresolved issues of abuse of discretion along with the use of an addendum as it involves no formal public review process.

Commentary: Given the inventory of project approvals issued during the boom years for projects that have yet to be built out (or in many cases even launched), this decision should be a confidence builder to cities, counties and developers looking to dust off and update the earlier approvals.

William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

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.

 

Mark your calendar – registration for Abbott & Kindermann’s 16th Annual Land Use, Real Estate, and Environmental Law Update will open on October 18, 2016.

In January 2017 Abbott & Kindermann, LLP will present its 16th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.  

A summary of 2016 case law and legislative updates includes the following hot topics for 2017:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, LLP will present its annual program at four locations: Redding, Sacramento, Modesto and Napa.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Redding Conference 

Date: Wednesday, January 11, 2017

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference 

Date: Friday, January 20, 2017

Location: Sacramento Hilton Arden West, 2200 Harvard Street

Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast

Program: 9:00 a.m. – 12:00 noon

Modesto Conference 

Date: Friday, January 27, 2017

Location: Double Tree Hotel Modesto, 1150 Ninth Street

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Napa Conference 

Date: Tuesday, January 31, 2017

Location: Embassy Suites, 1075 California Boulevard

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

The registration fee for the program is $80.00. MCLE and AICP CM credits are available (approval pending).

Please call (916) 456-9595 with any questions.