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.

Malibu's Legacy Park EIR Upheld – Challenges re Water Impacts Found Moot, Time-Barred, and Non-Existent

Santa Monica Baykeeper v. City of Malibu (Ct. App. 2d Dist, Div. 4 April 5, 2011) No. B222776 , available at CourtWebsite

In this case, plaintiff Santa Monica Baykeeper challenged the City of Malibu’s EIR and approval of a project for Legacy Park -- a 15-acre park next to the mouth of Malibu Creek at the Pacific Ocean. An adjacent project -- the Malibu Lumbar Yard -- was approved in 2007, which included irrigation for the park from the lumber yard's treated wastewater effluent ten months of the year, while dispersing water into the Malibu Creek watershed the remainder of the year. Santa Monica Baykeeper challenged the Legacy Park EIR, arguing that it failed to adequately analyze construction impacts on water quality, the impact of using treated effluent from the Malibu Lumber Yard on the project site, and the cumulative groundwater impacts of the project’s effluent use.

First, the court held that the construction impacts argument was moot -- the project was already completed by the time of appeal, so no further construction impacts could occur. Second, regarding irrigation with treated effluent from Malibu Lumber Yard, the court held that the EIR adequately addressed wastewater use, and the creation of the wastewater dispersal field had already been subjected to prior environmental review that was never challenged -- thus arguments related to the use of wastewater on the park were time-barred. Lastly, the court found substantial evidence supporting the city’s conclusion that the Legacy Park project reduces rather than creates groundwater impacts, and therefore the project would not have a cumulative groundwater impact. Therefore, the court upheld the city’s EIR and approval of the project.

Complete and Adequate EIR Needed for Certification

Landvalue 77, LLC v. Board of Trustees of the California State University (filed Feb. 23, 2011; cert. for publ. Mar. 16, 2011) No. F058451, available at CourtWebsite

A recent Court of Appeals decision highlights the potentially harsh consequences of producing an incomplete EIR. In the case, an EIR for a mixed-use development project had not adequately analyzed potential impacts related to air quality, traffic and parking, and water supply. To remedy this error, the court required the approving agency to decertify the entire EIR and withdraw its approval of the project.

The court held that CEQA provides for EIR certification when the EIR is complete, and that partial certification is not compatible with this concept because an EIR is either complete or it is not. Thus, even though an EIR may only be inadequate in some areas of its analysis, courts must set aside the entirety of the EIR certification and project approval. Although some prior court decisions have not required entire decertification of partially inadequate EIRs, this decision highlights the possibility that agency review of the full EIR and approval may be required by a court – even where only portions of the EIR are found inadequate.

Requirements for Exhausting Administrative Remedies Before Challenging CEQA Exemptions May or May Not Apply

Tomlinson v. County of Alameda (Oct. 6, 2010) No. A125471, available at CourtWebsite [discussing Hines v. California Coastal Commission (June 17, 2010) 186 Cal.App.4th 830, available at CourtWebsite.]


This case was initially decided by the court on June 18, 2010 [CEQA Blog Summary]. However, at almost the same time, another court issued its decision in Hines v. California Coastal Commission (June 17, 2010) 186 Cal.App.4th 830, which dealt with similar requirements for “exhausting” administrative remedies under CEQA. Under the “exhaustion” doctrine, project challengers generally must raise their arguments to the lead agency before they can petition the court to review the agency’s decision. Due to the closeness of these cases, the court decided to rehear this portion of its decision, and – in the end – highlighted the extreme legal complexities involved with “exhausting” administrative remedies. Importantly, this revised decision does not change the court’s holding regarding what constitutes “within city limits” for purposes of exempting infill projects under CEQA Guidelines, section 15332, as was previously reported.

As the new decision notes, the Hines court held that parties challenging a project have failed to “exhaust” under Public Resources Code, section 21177, subdivision (e), if there are “public hearings that include environmental review, ample notice of such hearings is given notifying the public of the agency’s reliance on the exemption, and the public does not raise an objection to the exemption despite such an opportunity to do so.” Throughout the planning process, the Hines challengers did not raise any issue regarding purported CEQA violations at any stage, despite ample notice that staff considered the project exempt, and there was ample opportunity to raise an objection. As a result, the Hines court would have had to decide factual questions about whether wildlife would be impacted and whether the project would open the door to successive projects. This would have entailed much more than merely reviewing the agency's decision. Thus, the court indicated it was appropriate for the Hines court to hold that the challengers could not petition for review of the agency action, because they failed to exhaust their administrative remedies by not raising such CEQA challenges to the agency.

The court distinguished the Tomlinsons' argument, because the question at issue - whether the project occurred “within city limits” for applying the "infill" exemption - did not require particular agency expertise or an evidentiary determination. Thus, the court stood by its original application of Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, that “exhaustion” under section 21177, subdivision (a), would only apply if CEQA provides a public comment period or there is a public hearing before a notice of determination is issued. Finding that exemption determinations do not have these requirements, the court held that the Tomlinsons were not required to "exhaust" by raising specific objections that the project was not “within city limits” in order to seek judicial review of the applied "infill" exemption.

The court’s rehearing of this matter, and its discussion and application of Hines and Azusa, importantly highlights the complexity of "exhaustion" arguments that can be raised related to challenges against a CEQA exemption. Through these decisions, courts have required exhaustion in situations where a lack of comments rendered the court unable to discern the agencies’ factual bases for the exemption; however, courts have not required exhaustion when the exemptions' factual bases were clearly discernable for judicial review. Therefore, the ability of a challenger to seek judicial review without having raised specific arguments to the agency is likely to be impacted by the availability of evidence for the court to adequately perform a review of the exemption.

Petitioning Group’s Request for Hearing Should Have Been in Writing

Torrey Hills Community Coalition v. City of San Diego (July 2, 2010) 186 Cal.App.4th 429, available at CourtWebsite.

In this case, Torrey Hills Community Coalition did not request a hearing in writing within 90 days of filing a writ petition alleging that the City of San Diego violated CEQA. The court held that Torrey Hills’ failure to make the request for a hearing in writing was a violation of CEQA, pursuant to Public Resources Code, section 21167.4, subdivision (a).

According to Torrey Hills, section 21167.4, subdivision (a), does not refer to a written request, and thus its oral request for a hearing before the deadline should have been considered sufficient. The court, however, found that when the subdivision (a), (b), and (c) are read together, as previously explained in County of Sacramento v. Superior Court (2009) 180 Cal.App.4th 943, it is clear that the request for a hearing under subdivision (a) must be in writing in order for the filing of the request -- pursuant to subdivisions (b) and (c) -- to operate.

The court also rejected Torrey Hills’ argument that it would have been futile to file a written request for a hearing. First, the court found that Torrey Hills failed to show diligence, when the deadline to file the request lapsed. Additionally, despite the court clerk having stated a preference for not immediately “setting” the hearing date, section 21167.4 merely requires the petitioner to file a request for a hearing. It does not require the petitioner to obtain a hearing date, and pursuant to subdivision (c), a hearing date could have been obtained later upon application by any party. Thus, the court affirmed that Torrey Hills violated section 21167.4, subdivision (a), by not filing a written request for a hearing.