Thursday, May 27, 2010

Court Finds Rejection of Alternative Was Not Supported and Water Supply Assessment Was Required for Composting Project

Center for Biological Diversity v. County of San Bernardino (Nursery Products LLC) No. D056652 (May 25, 2010) available at CourtWebsite.

This case deals with the support necessary for rejecting alternatives in a Final EIR ("FEIR") and the requirements for performing a water supply assessment (“WSA”). The court found that the FEIR’s rejection of the alternative to use an enclosed composting facility rather than an open-aired facility was not supported by substantial evidence because it did not show that it was technologically and economically infeasible. The court also found that the composting facility was a “project” under the Water Code and that the proponent had failed to comply with the requirement to perform a WSA.

In the case, Nursery Products LLC proposed to develop and operate an open-aired human waste composting facility in an unincorporated area of San Bernardino County in the Mojave Desert. Nursery Products contended that an alternative enclosed facility was economically and technologically infeasible. The court, however, found there was no meaningful comparative data pertaining to a range of costs in the FEIR because the FEIR only provided the cost of one other enclosed facility. The FEIR ignored other similar facilities despite evidence that there were facilities in Los Angeles and Riverside Counties, and it was known that such enclosed facilities were becoming more common in urban areas. The court also found that Nursery Products’ expert’s opinion related to the economic infeasibility of the alternative was not support by facts. Further, the FEIR contained no information on the technological infeasibility of the alternative. The FEIR showed electricity was not present at the site, but it did not discuss how it was infeasible to establish an electricity supply to the project site. Therefore, the court concluded that the rejection of the enclosed facility alternative as infeasible was not supported by substantial evidence.

Related to water supply, the FEIR did not include a WSA and did not indicate if a well had been drilled or other sources had been evaluated to determine the actual availability of water to the site. Nursery Products argued that a WSA was not necessary because the facility was not a “project” under the Water Code. The court found that the facility was a “project” because it was considered a “processing plant” that was conducted on more than 40 acres of land, pursuant to the definition in Water Code section 10912, subdivision (a)(5). The court found that the definition was not constrained by water usage and expanded the court’s holding in Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1131, that a WSA is required only if a public water system is impacted. Unlike Gray, here, the court analyzed several provisions in the Water Code and clarified that preparing a WSA was required even if the water source was not a public water system.

Monday, May 3, 2010

First Published Appellate Court Decision On GHG Emissions; Invalidates EIR That Deferred Development of GHG Mitigation Plan

Communities for a Better Environment v. City of Richmond, No. A125618, (Apr. 26, 2010) available at CourtWebsite.

In the first published decision to address greenhouse gas (GHG) emissions under CEQA, the Court of Appeal for the First Appellate District invalidated an environmental impact report (EIR) that deferred the formulation of mitigation for GHG emissions. Though the decision applied existing CEQA principles regarding deferred mitigation, the decision, as well as recent amendments to the State CEQA Guidelines, demonstrates a need for well-developed factual evidence to support a lead agency’s conclusion regarding a project’s climate change impacts.

In Communities for a Better Environment v. City of Richmond (April 26, 2010), the city certified an EIR for modifications to an existing refinery, which concluded the project’s GHG emissions would have a potentially significant effect on the environment. Accordingly, the EIR included mitigation measures that the city contended would result in no net increase in GHG emissions, including the development of a GHG mitigation plan within one year of project approval; an inventory of the project’s GHG emissions; and identification of potential emissions reduction opportunities. Following project approval, the EIR was challenged. The trial court struck down the EIR and an appeal was filed. Ultimately, the Appellate Court agreed with the trial court that the city violated CEQA by deferring the formulation of mitigation measures for GHG emissions.

The Appellate Court clarified that an EIR may only defer formulation of mitigation measures if the lead agency (1) first conducts a full analysis of the significance of the environmental impact, (2) proposes potential mitigation measures early in the planning process, and (3) articulates specific performance criteria to ensure that adequate mitigation is eventually implemented. The court also criticized the EIR’s failure to calculate the actual reduction in emissions that would likely result from each mitigation measure and questioned whether the city’s no net increase in GHG emissions could be achieved by the “handful of cursorily described mitigation measures for future consideration.”

Notably, although not addressed in the court's decision, the recently finalized State CEQA Guidelines addressing GHG emissions state that lead agencies must consider “feasible means, supported by substantial evidence and subject to monitoring or reporting, of mitigating the significant effects of GHG emissions.” To be “feasible” a mitigation measure must be capable of being accomplished in a successful manner within a reasonable period of time.

In sum, this case confirms that, while future mitigation plans for GHG emissions (or other impacts) are not prohibited by CEQA, the ideal time to analyze impacts and to formulate mitigation measures is during the environmental review process before project approval. If practical considerations do not allow for the formulation of mitigation measures prior to project approval, then the agency should, at a minimum, satisfy the three requirements set forth above, including establishing specific performance criteria for such measures.