Document Dump Deemed Failure to “Exhaust”; Greenhouse Gases Considered Not “New Information” Requiring EIR; and Water Supply Assessment Held Timely

Citizens for Responsible Equitable Environmental Development v. City of San Diego (Cal. Ct. App. 4th Dist, Div. 1, May 19, 2011) (Published June 10, 2011) No. D057524 (196 Cal. App. 4th 515) available at CourtWebsite

This case has three very interesting parts to it: 1) the procedural exhaustion requirement related to the abusive CEQA litigation tactic of dumping a bunch of documents on the agency at the last-minute; 2) the ability to rely on older EIRs regarding greenhouse gas impacts for preparing an addendum rather than a supplemental or subsequent EIR; and 3) the timing for preparing a water supply assessment (“WSA”).

In the case, the city of San Diego certified an EIR in 1994 for a specific plan. For one of the final condominium projects in the plan area, the city prepared a WSA and an addendum to the EIR. Opponents (“CREED”) submitted two cursory comment letters objecting to the development, claiming that the WSA was not subjected to public review and the project would emit greenhouse gases. They also submitted a DVD containing over 4,000 pages of documents with no table of contents or any information regarding how the documents pertained to the project.

Exhaustion. The basic premise of the “exhaustion doctrine” is that a plaintiff must “exhaust” his or her administrative remedies by first raising arguments to the agency during its consideration of the project. This gives the agency the opportunity to correct the issue before there is a need to seek review by a court of law. To “exhaust administrative remedies, the objections ‘must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.’” Here, however, the court found that the document dump implemented by CREED of thousands of pages of various materials at the last minute failed to satisfy the exhaustion requirement because it failed to “fairly present information” to the city.

GHGs. The court found that a supplemental or subsequent EIR was not required because there was not new information presented about greenhouse gases. The court found “information on the effect of greenhouse gas emissions on climate was known long before the city approved the 1994 EIR” and the effect of greenhouse gas emissions on climate could have been raised in 1994 when the City considered the FEIR.” This holding bears interest because even considering the 2009 addendum, the court held that the plaintiffs should have raised their GHG claims in 1994. Some critics argue that studying impacts from emissions was not common until the California Global Warming Solutions Act of 2006 was passed. However, this case potentially shields similar projects from judicial review that involve local agencies relying on environmental documents that were certified as far back as 1994.

WSA. The court held that the timing requirements of Water Code section 10910(g) for a public water system to submit a WSA to a city or county do not apply when the water supplier and the lead agency are the same. Further, the WSA did not need to be approved before the CEQA documents could rely on it.

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.

Source: www.BBKLaw.com