By William W. Abbott
Friends of Oroville v. Wal-Mart Stores, Inc. (August 19, 2013, C070448) ___ Cal.App.4th ___.
Wal-mart moved several steps closer to a new store as a result of the most recent appellate court decision over a new retail center proposed to be constructed in Oroville, suffering a setback however on greenhouse gas emissions. Friends of Oroville appealed a planning commission approval of a proposed supercenter, intended to replace an existing store. Following the appeal hearing, the City Council approved the new store, and the Friends of Oroville filed a petition for writ of mandate to set aside the approval. The trial court denied the petition, and Friends of Oroville appealed. On appeal, the appellate court affirmed the legal sufficiency of the EIR save one issue (greenhouse gases) and one clarification (payment of traffic fees.) The published portion of the decision pertains to greenhouse gas analysis, and the court ruled as follows.
The DEIR utilized Guidelines section 15064.4, which deals specifically with greenhouse gas emissions. The DEIR also examined AB 32, the Early Action Measures identified by the Air Resources Board, the California Attorney General’s website list of “CEQA Mitigations for Global Warming Impacts” and the 2008 “white paper” from the California Air Pollution Control Officers Association, a comprehensive approach to analyzing the topic. The lead agency used the AB 32 reduction targets for GHG as the threshold-of-significance, an approach favorably reviewed in Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327 (“Citizens”). Although the lead agency in Oroville operated from an appropriate legal foundation, the appellate court found two errors. First, the lead agency focused on the relative percentage of project emissions against the statewide numbers for 2004, determining that the project would contribute .003%. As the appellate court observed, the project numbers would always pale when compared to the “world’s eighth largest economy.” The appellate court stated that the correct analysis, as reflected in Citizens, would have involved an evaluation of the project as compared to a business-as-usual reference point.
The second error involved the failure to analyze GHG generation from the existing Walmart and failure to include a quantitative or qualitative analysis of air mitigation measures 8a through 8e, a step called for in Guidelines section 15064.4. The flaws in the evidence in support of the conclusion that the impacts would be less than significant was also compounded by the fact that a majority of the project generated impacts came from transportation sources, and those were subject to state implementation. In the absence of evaluation (again quantitative or qualitative), the court concluded that the less-than-significant impact was not adequately supported by substantial evidence.
The court remanded the matter to the trial court for clarification on a traffic impact fee requirement as well as a re-evaluation of GHG emissions.
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.