By Leslie Z. Walker
The City of Richmond (“City”) and Chevron Products Company (“Chevron”) gave the First District Court of Appeals the opportunity to deliver the first ever appellate court decision on an Environmental Impact Report’s (“EIR”) treatment of greenhouse gas emissions (“GHG”). On April 26, 2010, the Appellate Court found in Communities for a Better Environment v. City of Richmond, (April 26, 2010, A125618) __Cal.App.4th__ the EIR prepared for the construction of an Energy and Hydrogen Renewal Project (“Project”) inadequate in its project description and mitigation of GHG. The factors that likely influenced the appellate court’s decision included: the deal struck between the applicant and the City whereby Chevron would pay the City $61 million dollars to fund civic improvement and the City would fast track the additional permits required for the project; the fact that the project as described in its Security and Exchange Commission documentation, made under oath, contradicted the Project description in the EIR; the City’s delay in concluding the Project’s GHG emissions would create a significant impact on the environment, and the plan for mitigating this contribution would not be developed until up to one year after the issuance of the conditional use permit for the Project.
Chevron proposed the Project to upgrade Chevron Richmond Refinery (“Refinery”). The City Council approved the project, imposing numerous conditions to address Project impacts and concluded that all significant environmental effects of the Project’s approval had been eliminated or substantially lessened where feasible.
Citizens groups challenged the approval and the trial court found the EIR was deficient because 1) the project description was unclear or inconsistent as to whether the Project would enable Chevron to process a heavier crude slate than it was currently processing; 2) the City had improperly deferred the formulation of GHG mitigation measures; and 3) Chevron had improperly piece-mealed the project by failing to include and analyze a hydrogen pipeline as part of the Project. The City appealed.
The Appellate Court first considered the adequacy of the project description, applying a de novo standard of review to the Citizens’ Groups claims that the EIR omitted pertinent information, which was, according to the Court, a question of procedure. At issue was whether or not the Project would enable the Refinery to process heavier crude. According to the EIR, the “Project would not alter the Refinery’s current design for processing intermediate and light crudes.” As a result, the EIR did not include any data regarding the current crude mix processed at the Refinery and did not analyze the environmental impacts of processing heavier crude.
Other evidence, however, indicated the Project would allow the Refinery to process heavier crude. For example, the EIR explained that the Project is proposed within the context of “a crude oil supply that is increasingly heavier,” and consequently, the Project was “designed to allow more flexibility in refining future crude supplies.” Further, a document submitted to the Securities and Exchange Commission cited the central purpose of the Project as enabling the processing of heavier crude.
The Court concluded the EIR failed CEQA’s informational purpose because the project description was inadequate with respect to whether the Project would enable the Refinery to process heavier crude, and failed to properly establish and analyze baseline conditions.
Deferred Mitigation of GHG
On the issue of GHG, the Court found the EIR improperly deferred the development of GHG mitigation measures. The Court relied on the Global Warming Solutions Act of 2006 (Health & Saf. Code, § 38500 et seq.) and the white paper developed by the California Air Pollution Control Officers Association as evidence that “climate-change impacts are significant environmental impacts requiring analysis under CEQA. . .” The Court criticized the timing of the City’s post-final EIR determination that Project’s 898,000 metric ton increase in CO2 emissions was significant.
The Court focused on a mitigation measure proposed once the City did make a finding of significance, which required Chevron to submit to the City “a plan for achieving complete reduction of GHG emissions,” within one year of project approval. The EIR concluded that after the implementation of the mitigation measure, the Project would “result in no net increase in GHG emissions over the Project baseline.” In other words, the mitigation measure would reduce the GHG impact to less than significant.
The Court found this to be a classic case of deferred mitigation, stating, “Numerous cases illustrate that reliance on tentative plans for future mitigation after completion of the CEQA process significantly undermines CEQA’s goal of full disclosure and informed decision making.” The Court noted California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603 and Sacramento Old City Association v. City Council (1991) 229 Cal.App.3d 1011 allow a lead agency to defer the formulation of specific mitigation measures after the lead agency,
- Undertook a complete analysis of the significant environmental impact,
- Proposed potential mitigation measures early in the planning process, and
- Articulated specific performance criteria that would ensure that adequate mitigation measures were eventually implemented.
The City did not perform any of these tasks, in part relying on the fact that scientific information about GHG was constantly expanding during the years the Project was under review. The Court rejected this determination, writing, “the difficulties caused by evolving technologies and scientific protocols do not justify a lead agency’s failure to met its responsibilities under CEQA by not even attempting to formulate a legally adequate mitigation plan.”
Finally, the Court noted that the inadequacy of the project description was a more fundamental flaw than the inadequacy of the GHG mitigation measures, but since the EIR had to be revised, “the revised EIR should take advantage of any pertinent new information in analyzing the Project’s potential greenhouse gas emissions and their cumulative impact on climate change, as well as defining legally adequate mitigation measures to avoid those impact,” directing the parties to new Guidelines section 15064.4 relating to the determination of significance of a project’s GHG emissions and section 15183.5, relating to tiering.
Petitioner also asserted the City had improperly piece-mealed the Project by failing to include and analyze a proposed hydrogen pipeline that would transport excess hydrogen to other hydrogen consumers as part of the Project. The court found that the Project and the pipeline perform entirely independent and unrelated functions and therefore their separate treatment did not constitute illegal piece-mailing.
This case is significant because it is the first appellate case requiring the quantification and mitigation of greenhouse gas emissions for a project developed and analyzed prior to the adoption of the CEQA Guidelines relating to GHG. It also sounds a caution to public agencies finding that the future development of a Climate Action Plan sufficiently mitigates identified GHG emissions – be sure to address the three deferred mitigation factors articulated by this court.
Leslie Z. Walker is an associate 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.