By Leslie Z. Walker, Cori Badgley, Katherine J. Hart and William W. Abbott
True to our standard annual mid-year update format, we are providing you with condensed summaries of each of the CEQA cases issued this year. The condensed case summaries are organized based upon the major CEQA issues discussed, and linked to the full length articles published earlier this year on our blog. To print this summary with all the articles attached, click here.
Highlights for this update include the three firsts on the climate change front: (1) adoption of CEQA guidelines for the quantification and mitigation of greenhouse gas emissions (“GHG”), (2) the adoption of the first thresholds of significance for GHG, and (3) the first appellate court case finding an Environmental Impact Report’s (“EIR”) analysis of GHG inadequate. Also in the first half of this year, the California Supreme Court opined that air impacts are to be measured against existing physical conditions not existing permitted levels of emissions. Further, Notices of Determination and Notices of Exemption trigger shortened statutes of limitations, despite any underlying errors, so long as they serve public notice purposes. For more details, read below and stay posted for the second half of the year.
CEQA Guidelines for Addressing Greenhouse Gas Emissions: The Amendments to the CEQA Guidelines Addressing GHG mandated by Senate Bill 97 (Chapter 185, Statues 2007; Pub. Resources Code, § 21083.05) took effect in March 2010. The Amendments require the quantification and mitigation of GHG. See CEQA Guidelines for Greenhouse Gas Emissions Become Law Today.
Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70: In the first published case on GHG analysis, the court ruled that the mitigation measures proposed in the EIR for Chevron’s Energy and Hydrogen Renewal Project constituted deferred mitigation. The court found that a mitigation measure requiring the city to submit a plan for achieving complete reduction of GHG emissions within one year of project approval constituted a classic case of deferred mitigation. The court cited to numerous cases holding that the 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. See 898,000 Metric Tons of Unmitigated CO2: Prime Conditions for the First Appellate Court Decision on CEQA and Climate Change.
Bay Area Air Quality Management District Thresholds of Significance: On June 2, 2010, the Bay Area Air Quality Management District adopted the first ever numeric thresholds for GHG. The Bay Area Guidelines impose plan-level and project-level guidelines for operations only (as opposed to the construction and operation thresholds proposed for Criteria Air Pollutants.) The project-level thresholds of significance for GHG are:
For land use development projects, compliance with a qualified GHG Reduction Strategy, or annual emissions less than 1,100 metric tons per year of carbon dioxide equivalent or 4.6 metric tons per year carbon dioxide equivalent per service population, which includes residents and employees. Land use development projects include residential, commercial, industrial and public land uses and facilities.
At the project level, the threshold is compliance with a qualified GHG reduction strategy or 6.6 metric tons per service population per year of carbon dioxide equivalent. See California Environmental Quality Act Air Quality Guidelines.
Is it A Project?
Parchester Village Neighborhood Council v. City of Richmond (2010) 182 Cal.App.4th 305: A municipal services agreement between the Scotts Valley Band of Pomo Indians of California and the City of Richmond did not constitute a project for the purposes of CEQA. The agreement required the tribe to make payments in exchange for fire, police and public works services and the city to support the tribes’ fee-to-trust application submitted to the federal government. The court found the agreement was not a project because the city had no authority over the fee-to-trust application, casino construction, or public works programs and the potential construction of fire facilities was too speculative to constitute a project. See City Gambles and Wins on Agreement with Tribe Over Casino: CEQA Does Not Apply.
San Diego Navy Broadway Complex Coalition v. Manchester Pacific Gateway LLC (June 17, 2010, D055699) ___ Cal.App.4th ___: Before getting to the question of whether a supplemental EIR is required, the threshold CEQA question is whether there is a discretionary approval by the governmental agency. In this case, petitioner argued that a supplemental EIR was required on the issue of climate change impacts, and the discretionary approval was the agency’s required consistency review of construction drawings for certain aesthetic impacts. The court held that the agency’s discretionary authority, if it had any at all, was limited to only aesthetics. Because the agency would have no power related to climate change impacts, there was no discretionary action that triggered CEQA. See Limited Discretion Related to Aesthetics did not Trigger Need for Supplemental EIR on Climate Change Impacts.
Tomlinson v. County of Alameda, (June 18, 2010, A125471) __ Cal.App.4th __: The court considered (1) whether Public Resources Code section 21177 required appellant to exhaust its administrative remedies, and (2) whether the project at issue qualified as in-fill development for the purposes of the Guidelines section 15332 categorical exemption. The court held that Public Resources Code section 21177 does not apply to exemption determinations and the infill exemption only applies to projects within the limits of a city. See Tomlinson v. County of Alameda.
Save the Plastic Bag Coalition v. City of Manhattan Beach (2010) 181 Cal.App.4th 521: The coastal city of Manhattan Beach adopted Ordinance No. 2115 which prohibited certain retailers and establishments from distributing plastic bags. The city prepared a negative declaration. An association of plastic bag manufacturers brought suit, claiming the ordinance may result in the increased use of paper bags, which in turn would result in significant environmental impacts. The appellate court found the association presented substantial evidence of a fair argument that the ordinance may have a significant environmental impact and therefore an EIR had to be prepared. Petition for Review has been granted on this Case. See Paper or Plastic? Public Right Exception Allows Plastic Bag Producers to Challenge Negative Declaration for Environmental Ordinance.
Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70: 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 the EIR failed to properly establish and analyze baseline conditions. See 898,000 Metric Tons of Unmitigated CO2: Prime Conditions for the First Appellate Court Decision on CEQA and Climate Change.
Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310: The Supreme Court found that CEQA air quality impacts are to be measured against existing physical conditions not existing permitted levels of operations for emitter. See Baseline Depends Upon Whether You Have a New or Modified Project or Existing Project Without Significant Expansion of Use.
Jones v. The Regents of the University of California (2010) 183 Cal.App.4th 818: The court upheld the EIR for a Long Range Development Plan for Lawrence Berkeley National Laboratory against the challenge that its range of alternatives was insufficient, in part because it did not include an off-site alternative. The court found the range of alternatives was adequate, and an off-site alternative was not necessary because it would not meet the project’s primary objective of creating a campus-like setting with existing facilities. See Regents’ CEQA Document Receives a Passing Grade; Opponent Marked Down for Inadequate Participation.
Watsonville Pilots Association v. City of Watsonville, et al. (2010) 183 Cal.App.4th 1059: A city acting as its own ALUC is subject to all of the substantive requirements under the State Aeronautics Act. A lead agency should have considered a low growth alternative as part of its general plan update as it would meet most general plan update objectives. See City’s New General Plan is not Cleared for Take-off, Returns to Base and is Grounded.
Center for Biological Diversity v. County of San Bernardino (2010) 184 Cal.App.4th 1342: County of San Bernardino presented insufficient evidence of economic and technological infeasibility to support its decision to reject a project alternative that could feasibly mitigate the air quality impacts of an open air composting facility by approximately 80 percent. See Put a Lid on It: EIR for Open Air Human Waste Composting Facility Held Invalid.
Katzeff v. California Department of Forestry and Fire Protection (2010) 181 Cal.App.4th 601: Once imposed, an agency must state its basis, supported by substantial evidence, for canceling or nullifying a mitigation measure, even if the proposed act is many years after the mitigation measure is imposed. See The Long Life of CEQA Mitigation Measures.
Patricia Melom v. City of Madera (2010) 183 Cal.App.4th 41: A CEQA document is not mandated to address urban decay merely because the project contains a retail supercenter. The holding in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, does not require this analysis for every CEQA document, but like most CEQA issues, is determined based upon the specific facts of each situation. See Subsequent EIRs: It is Still a Matter of the Evidence in the Record.
WATER SUPPLY ANALYSIS
Center for Biological Diversity v. County of San Bernardino (2010) 184 Cal.App.4th 1342: The court held that a SB 610 analysis should have been completed because the project, an open-air composting facility falls within the definition of processing plants. See Put a Lid on It: EIR for Open Air Human Waste Composting Facility Held Invalid.
Watsonville Pilots Association v. City of Watsonville, et al. (2010) 183 Cal.App.4th 1059: A water analysis as part of a general plan update does not have to identify a firm source of water supply, rather it must analyze the likely impacts. See City’s New General Plan is not Cleared for Take-off, Returns to Base and is Grounded.
San Joaquin River Exchange Contractors v. State Water Resources Control Board (2010) 183 Cal.App.4th 1110: Final staff report prepared by Central Valley Regional Water Quality Control Board Staff for basin plan amendments qualifies for an EIR-equivalent document because basin planning is a certified regulatory program under CEQA. See Basin Plan Amendments Addressing Impairments for Salt, Boron and Dissolved Oxygen are Valid.
FEES FOR CEQA APPEAL
Friends of Glendora v. City of Glendora (2010) 182 Cal.App.4th 573: Local agencies may impose a fee for the filing of an appeal of a CEQA decision so long as that fee is reasonable. See Yes, Local Appeal Fees Apply to CEQA Appeals.
STATUTE OF LIMITATIONS
Committee for Green Foothills v. Santa Clara County Board of Supervisors (2010) 48 Cal.4th 32: In a decision filed on February 11, 2009, the Supreme Court held that the filing of a notice of determination triggers a 30-day statute of limitations for all CEQA challenges to the decision announced in the notice regardless of the nature of the CEQA violation. See NODs Provide Bullet-Proof Protection 30 Days After Posting.
Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481: Supreme Court found the City’s determination that a project was exempt from CEQA must be challenged within the 35-day statute of limitations if a facially valid Notice of Exemption was filed, even if the determination of exemption was erroneous. See No Fooling: A Facially Valid NOE Triggers a 35-Day Statute of Limitations.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
Jones v. The Regents of the University of California (2010) 183 Cal.App.4th 818: Project opponents’ general identification of water quality impacts was insufficient to preserve for trial the more specific complaint that the project failed to attain water quality benchmarks. Project opponents also failed to exhaust their administrative remedies on the GHG issue because it had the opportunity to bring the issue to the lead agency’s attention prior to certification of the EIR, but did not do so. See Regents’ CEQA Document Receives a Passing Grade; Opponent Marked Down for Inadequate Participation.
Center for Biological Diversity v. County of San Bernardino (2010) 184 Cal.App.4th 1342: Petitioner exhausted its administrative remedies to challenge the water supply assessment even though it did not specifically mention the 610 analysis. See Put a Lid on It: EIR for Open Air Human Waste Composting Facility Held Invalid.