California Oak Foundation v. Regents of the University of California (Sept. 3, 2010) No. A122511, available at CourtWebsite.
The California Oak Foundation and others filed petitions challenging the Regents of the University of California’s certification of an EIR and approval of a project for building athletic facilities at the Berkeley campus. The Oak Foundation alleged that the EIR was inadequate under CEQA in its (1) description of baseline conditions; (2) project description; (3) statement of objectives; (4) discussion of alternatives; and (5) discussion of biological and archaeological impacts. It also alleged improper (1) delegating of authority to certify the EIR to the Regents’ Committee on Grounds and Buildings; (2) giving approval to the project before certifying the EIR; (3) failing to recirculate the Draft EIR; and (4) making findings and a statement of overriding considerations without evidentiary support. The court rejected all of these arguments.
First, the court found that the EIR accurately described the existing baseline conditions, and the geotechnical study made available after DEIR circulation adequately matched up with that baseline. Release of the study after circulation also did not require recirculation because it did not constitute significant new information and merely confirmed information already stated. The court held that omitting discussion of the California Geological Survey and United States Geological Survey comment letters was of no consequence because they did not show that the conclusions in the geology report were erroneous.
The court found the project’s description complied with CEQA Guidelines, section 15124. Evidence supported the degree of specificity used. The methodology for presenting and analyzing project alternatives in matrix and narrative format was appropriate despite some broad wording. The significant environmental impacts and corresponding components of each of the alternatives were evaluated against the corresponding component of the project, thus demonstrating a good faith effort to provide a meaningful discussion of a range of reasonable project alternatives, which according to the court was all that CEQA requires. Finally, substantial evidence supported the Regents’ conclusions on archeological and biological resources, their findings, and the statement of overriding considerations.
The court held that the Committee on Grounds and Buildings appropriately certified the EIR based on its approval authority over the project. Further, the project was not approved before certifying the EIR because the Regents’ policy related to its earlier approval of funding did not constitute project approval until completion of the project’s design review.
Therefore, the court affirmed the denial of the California Oak Foundation’s petition for writ of mandate and upheld the EIR certification and project approval.
Wednesday, September 15, 2010
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.
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.
Tuesday, June 29, 2010
Court Directs County to Set Aside Categorical Exemption for In-Fill Project, Clarifies the Requirement for Exempting Projects “Within City Limits”
Tomlinson v. County of Alameda, No. A125471 (June 18, 2010) available at CourtWebsite.
In a decision that clarifies the standards that public agencies should apply when relying on categorical exemptions, a California court of appeal recently held that the County of Alameda applied the wrong legal standard for exempting an in-fill subdivision.
The court noted that to rely on a categorical exemption, the administrative record must disclose substantial evidence of every element of the contended exemption. Looking at each element of the categorical exemption for in-fill developments under CEQA Guidelines section 15332, the court found that the critical hanging point in the case was the requirement that the in-fill development be “within city limits” for the exemption to apply.
In the case, the applicant’s project was located in the an unincorporated part of the county. Although the County of Alameda argued that the project site was surrounded by highly urbanized development, the court rejected such an expanded interpretation of “within city limits.” Rather, the court held that a plain reading of the exemption required that the “within city limits” element could only be satisfied if the project was located within the boundaries of a municipality.
Additionally, the court noted there was not a procedural requirement for the challenging party to exhaust its administrative remedies by making specific comments to the county regarding the improper application of the categorical exemption. The court held that the exhaustion requirement under Public Resources Code section 21177 did not apply because (1) CEQA does not provide for a public comment period before an agency makes an exemption finding, and (2) there is no "public hearing before a notice of determination is issued," as an NOD is not filed if the agency declares an exemption.
The court of appeal remanded the case to the trial court with instructions to issue a writ of mandate directing the county to set aside its decision. This case highlights the care that should be taken when applying a categorical exemption for a project by providing substantial evidence supporting each element of the exemption.
In a decision that clarifies the standards that public agencies should apply when relying on categorical exemptions, a California court of appeal recently held that the County of Alameda applied the wrong legal standard for exempting an in-fill subdivision.
The court noted that to rely on a categorical exemption, the administrative record must disclose substantial evidence of every element of the contended exemption. Looking at each element of the categorical exemption for in-fill developments under CEQA Guidelines section 15332, the court found that the critical hanging point in the case was the requirement that the in-fill development be “within city limits” for the exemption to apply.
In the case, the applicant’s project was located in the an unincorporated part of the county. Although the County of Alameda argued that the project site was surrounded by highly urbanized development, the court rejected such an expanded interpretation of “within city limits.” Rather, the court held that a plain reading of the exemption required that the “within city limits” element could only be satisfied if the project was located within the boundaries of a municipality.
Additionally, the court noted there was not a procedural requirement for the challenging party to exhaust its administrative remedies by making specific comments to the county regarding the improper application of the categorical exemption. The court held that the exhaustion requirement under Public Resources Code section 21177 did not apply because (1) CEQA does not provide for a public comment period before an agency makes an exemption finding, and (2) there is no "public hearing before a notice of determination is issued," as an NOD is not filed if the agency declares an exemption.
The court of appeal remanded the case to the trial court with instructions to issue a writ of mandate directing the county to set aside its decision. This case highlights the care that should be taken when applying a categorical exemption for a project by providing substantial evidence supporting each element of the exemption.
Tuesday, June 22, 2010
Subsequent CEQA Review Only Required If Agency Has the Discretion to Respond to the Environmental Impacts Raised
San Diego Navy Broadway Complex Coalition v. City of San Diego, No. D055699 (June 17, 2010) available at CourtWebsite.
In a significant decision for public agencies, the Fourth District Court of Appeal recently concluded that the City of San Diego was not required to prepare a subsequent or supplemental environmental impact report (EIR) regarding the potential impact of a project on climate change. The court reasoned that the City did not grant a discretionary approval that would provide it with the authority to address the project's impact on this particular environmental issue. This case reinforces the concept that the application of the California Environmental Quality Act (CEQA) to subsequent approvals is relatively narrow in scope and only requires a new EIR in certain specific circumstances.
In San Diego Navy Broadway Complex Coalition v. City of San Diego, an EIR had previously been certified in the 1990s for the development of waterfront property in downtown San Diego. Under the development agreement that had been approved at that time, later review of development plans would be necessary to ensure that aesthetic design requirements were fulfilled. In 2006 and 2007, these development plans were submitted and it was determined that no subsequent or supplemental EIR under Public Resources Code section 21166 was necessary.
However, the petitioner argued that the fact that the earlier EIR did not analyze climate change impacts did require a subsequent or supplemental EIR. Rejecting this, the Court found that the scope of discretion involved in this design review was limited and did not involve the issue that supposedly triggered the need for a subsequent or supplement EIR (namely, climate change). Thus, the Court held in its opinion issued last Thursday, that, in addition to meeting the conditions of Public Resources Code section 21166, the requirement to prepare a subsequent or supplemental EIR arises only where the agency has discretion to respond to the environmental concerns raised in such a new EIR.
In a significant decision for public agencies, the Fourth District Court of Appeal recently concluded that the City of San Diego was not required to prepare a subsequent or supplemental environmental impact report (EIR) regarding the potential impact of a project on climate change. The court reasoned that the City did not grant a discretionary approval that would provide it with the authority to address the project's impact on this particular environmental issue. This case reinforces the concept that the application of the California Environmental Quality Act (CEQA) to subsequent approvals is relatively narrow in scope and only requires a new EIR in certain specific circumstances.
In San Diego Navy Broadway Complex Coalition v. City of San Diego, an EIR had previously been certified in the 1990s for the development of waterfront property in downtown San Diego. Under the development agreement that had been approved at that time, later review of development plans would be necessary to ensure that aesthetic design requirements were fulfilled. In 2006 and 2007, these development plans were submitted and it was determined that no subsequent or supplemental EIR under Public Resources Code section 21166 was necessary.
However, the petitioner argued that the fact that the earlier EIR did not analyze climate change impacts did require a subsequent or supplemental EIR. Rejecting this, the Court found that the scope of discretion involved in this design review was limited and did not involve the issue that supposedly triggered the need for a subsequent or supplement EIR (namely, climate change). Thus, the Court held in its opinion issued last Thursday, that, in addition to meeting the conditions of Public Resources Code section 21166, the requirement to prepare a subsequent or supplemental EIR arises only where the agency has discretion to respond to the environmental concerns raised in such a new EIR.
Source: www.bbklaw.com
Tuesday, June 8, 2010
Bay Area Air District Approves California’s First Regional Thresholds of Significance for Greenhouse Gas Emissions from Projects
The Bay Area Air Quality Management District (BAAQMD) last week announced the adoption of the first region-wide numeric thresholds for greenhouse gas emissions for residential and commercial projects in California. The new standards provide guidance for Bay Area public agencies to review the environmental risks posed by the approval of development projects under the California Environmental Quality Act (CEQA).
In 2006, the California Global Warming Solutions Act of 2006 (AB 32) was enacted to require a statewide reduction in greenhouse gas emissions to 1990 levels by the year 2020. This spring, the state revised the CEQA Guidelines to specifically address impacts caused by development projects related to greenhouse gas emissions. The BAAQMD’s new thresholds can be used for complying with these analytical requirements under CEQA for projects proposed in the Bay Area.
The BAAQMD’s thresholds, approved last Wednesday, allow Bay Area public agencies to consider either a fixed threshold of 1,100 metric tons per year of greenhouse gases emitted from a commercial, residential or mixed-use project, or a per capita threshold of 4.6 metric tons per year of carbon dioxide emitted per subdivision resident or business employee. These thresholds are intended to encourage smart-growth projects, while facilitating large projects that maintain a proportionally low level of emissions. Proposed developments that would exceed the thresholds are required to perform additional environmental review of ways to reduce or offset the emissions.
These thresholds were developed specifically for the Bay Area. However, since they are the first regional air district to adopt numeric thresholds for greenhouse gas emissions from residential and commercial projects, lead agencies throughout the state may receive public comments suggesting application of the BAAQMD thresholds to proposed development projects.
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.
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.
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.
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