Monday, November 29, 2010

Court Upholds City’s Discretion to Determine Baseline for Environmental Review and Provides Guidance on Infeasible Agricultural Resources Mitigation

Cherry Valley Pass Acres and Neighbors v. City of Beaumont (Cherry Valley) (Nov 22, 2010) No. E049651, available at CourtWebsite

In a decision affirming the discretion of local agencies to determine the proper “baseline” when conducting environmental review, the Court of Appeal sided with Best Best & Krieger LLP attorneys Michelle Ouellette and Fernando Avila, and upheld the groundwater analysis in an environmental impact report (EIR) prepared for a 560-unit housing development. The decision in Cherry Valley Pass Acres and Neighbors v. City of Beaumont (Cherry Valley) also provided important guidance as to what types of circumstances support a finding that agricultural resources mitigation is infeasible, an issue that many agencies face while complying with the California Environmental Quality Act (CEQA).

In Cherry Valley, a local opposition group challenged the recirculated EIR prepared for a 560-unit housing development, which was itself a scaled-down version of an earlier proposal. Project opponents argued that the City of Beaumont’s (City’s) baseline for water usage on the site was improper because it reflected the amount of water being pumped at the time the Notice of Preparation was released (when the site was an operating egg ranch), and not the minimal amount of water usage occurring at the time the recirculated EIR was released. The court disagreed, holding that the egg ranch’s vested, adjudicated groundwater rights and its history of water usage on the site supported the City’s use of that as a baseline.

The court also noted that the record contained ample evidence supporting a finding that on- and off-site mitigation for agricultural resources impacts, as well as project alternatives that lessened those impacts, would all be infeasible. Key to this determination were the facts that the City’s General Plan explicitly did not anticipate that agriculture could continue long-term and foresaw the eventual conversion of farmland and that the City’s financial analysis determined that various project alternatives that would preserve agricultural uses on-site were not viable.

The Cherry Valley decision represents an important reaffirmation of public agencies’ discretion to conduct environmental analysis and make determinations provided only that they are supported by substantial evidence, even in hotly-debated fields such as water supply and agricultural resources.


Wednesday, November 3, 2010

California Voters Reject Effort to Suspend Global Warming Law (AB 32)

California voters yesterday rejected Proposition 23, a measure that supporters argued would save jobs and prevent increased energy costs. Had it passed, Prop 23 would have suspended California’s Global Warming Solutions Act of 2006, widely known as AB 32, until unemployment in the state lowered to specified levels.

The results of the gubernatorial election also indicate that implementation of AB 32 will not be delayed. During the campaign, though she did not back Prop 23, gubernatorial candidate Meg Whitman had pledged to suspend implementation of AB 32 for at least a year. Jerry Brown, the winner in yesterday’s gubernatorial race, opposed efforts to suspend AB 32, though during the campaign he stated that he would be open to adjustments to the law.

In the short term, these election results mean that AB 32's implementation will continue. In fact, the public comment period on the Air Resources Board’s proposed Cap and Trade regulations opened on Monday. Entities that will be directly affected by AB 32 include industries, such as petroleum refineries and manufacturers, that produce large amounts of carbon dioxide and other greenhouse gases. Municipalities and public utilities may also be directly affected through regulations on energy production, solid waste disposal and wastewater treatment.

Tuesday’s election did not remove all uncertainty regarding implementation of AB 32, however, as the electorate did enact Proposition 26. That measure amended the California Constitution to treat regulatory fees more like taxes. Opponents and proponents of the measure produced conflicting predictions of exactly how Prop 26 would affect the funding source for AB 32 and other environmental laws. Future argument over the precise effect of the change is likely.