Archive for April, 2013


A revised version of SB 731, the CEQA Modernization Act of 2013, has been released by California pro tem Darrell Steinberg. This bill includes numerous but limited revisions to CEQA, with a focus on streamlining the approval process for what the bill considers to be environmentally beneficial projects. Various revisions address transportation issues and infill development to further facilitate the Sustainable Communities Strategy previously adopted by SB 375. The most substantive revisions to CEQA in SB 731 are described below.

One provision addressed in SB 731 revises Government Code section 65457, which exempts residential development projects from CEQA within specific plan areas for which an EIR has been certified. Under the current law, this exemption cannot be applied if an event specified in CEQA (Pub. Resources Code) section 21166 occurs. The revision states, that for the purposes of Government Code section 65457, an event specified in CEQA section 21166 does not include “any new information consisting solely of argument, speculation, unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or evidence of social or economic impacts that do not contribute to, or are caused by, physical impacts on the environment.” This provision could reduce redundancy in EIR preparation by making the use of tiering under these circumstances more defensible.

SB 731 also proposes standardized thresholds of significance for environmentally beneficial projects. This revision directs the Office of Planning and Research to propose revisions to the CEQA Guidelines establishing thresholds of significance for noise and for transportation and parking impacts of qualifying projects within “transit priority areas.” In addition, this revision declares that aesthetic impacts of qualifying projects within transit priority areas shall not be considered significant impacts on the environments. The bill does not prevent local jurisdictions from considering aesthetic impacts pursuant to local ordinances or other discretionary powers.

Another substantive revision addresses preparation of the administrative record in CEQA cases. The bill would add section 21167.6.2 to CEQA, which describes a process by which the administrative record is prepared concurrently with the administrative process, and documents must be made available electronically to the public shortly after receipt by the lead agency. This process will be applied to projects of statewide, regional, or areawide environmental significance, or if requested by the project applicant.

SB 731 would also amend Section 21091 of the Public Resources Code and related provisions of law to establish clear statutory rules under which “late hits” and “document dumps” are prohibited or restricted prior to certification of an EIR, if a project proponent or lead agency has not substantively changed the draft EIR or substantively modified the project.

The bill would also revise CEQA section 21081.5 to require agencies to make findings described in section 21081 available in draft form for public review at least fifteen days prior to approval of the proposed project.

The revised SB 731 also adds a provision to section 44273 of the Health and Safety Code to provide funding of up to $30 million annually to the Strategic Growth Council in order to fund planning activities for transit priority projects by local agencies.

Finally, SB 731 revises CEQA section 21168.9, which describes how courts should proceed when issuing a writ of mandate in a CEQA action. Section 21168.9 already encourages courts to issue detailed writs which are no more broad than necessary to address defects in the CEQA process. The revised section 21168.9 requires even further specificity in a writ of mandate. The bill can be viewed at: http://ct3k1.capitoltrack.com/Bills/13Bills/sen/sb_0701-0750/sb_731_bill_20130423_amended_sen_v98.pdf  [John Wheat]

On April 18, 2013, Judge Timothy Frawley of the Sacramento Superior Court approved a stipulated judgment resulting in the dismissal of the remaining petition challenging the initial Merced to Fresno section of California’s proposed high-speed train system (HST). The petitioners—Merced County Farm Bureau, Madera County Farm Bureau, Chowchilla Water District, Preserve Our Heritage, and individual agricultural landowners—and the California High Speed Rail Authority (HSRA) entered into a settlement agreement, which provides for additional mitigation for agricultural land impacts from the construction of the Merced to Fresno section of the HST in exchange for dismissal of the lawsuit. James Moose, Sabrina Teller, and Chris Stiles of Remy Moose Manley, LLP supported the California Attorney General’s Office in representing the HSRA in a set of consolidated lawsuits challenging the EIR prepared for the Merced to Fresno section.

On May 3, 2012, the HSRA certified the Final EIR/EIS for the Merced to Fresno section of the proposed HST. The Merced to Fresno section of the planned 800-mile system is roughly 65 miles long through the northern San Joaquin Valley, with portions along and adjacent to the existing UPRR and BNSF tracks. The project approvals drew three CEQA lawsuits in June 2012. The City of Chowchilla and a group of Valley landowners dismissed their two suits earlier this year. In November 2012, Judge Frawley denied the Farm Bureau petitioners’ motion for preliminary injunction to halt HSRA activities in furtherance of the construction of the Merced to Fresno section. A hearing on the merits of the petition was to be held on April 19, 2013.

In the settlement, the HSRA agreed to   a number of commitments focused on agricultural land mitigation, communications with agricultural landowners during the right of way process, and mitigation for impacts to Chowchilla Water District’s facilities.. Per the terms of the stipulated judgment, the court retains jurisdiction over the parties to enforce the agreement.

With this recent settlement there are currently no legal impediments for the HSRA to move forward with the construction of the Merced to Fresno section of the HST, which is expected to start in the summer of 2013. [Jeannie Lee]

On April 23, 2013, the California Environmental Protection agency released its California Communities Environmental Health Screening Tool, or CalEnviroScreen. This mapping tool was developed jointly by CalEPA and the Office of Environmental Health Hazard Assessment (OEHHA) “for evaluating multiple pollutants and stressors in communities.” The mapping tool is intended as the next step in implementation of CalEPA’s 2004 Environmental Justice Action Plan, which called for guidance on the analysis of multiple pollution sources and their impacts on California communities.

The mapping tool tracks, by zip code, how various communities are affected by eleven types of pollution and environmental factors such as pesticides, heavy vehicle emissions, hazardous waste, and other toxic factors. The mapping also takes into account overall community health based on seven population and socioeconomic factors such as residents living below the poverty line, average education levels, and occurrences of asthma within the populations. Together, these factors allow the CalEPA to address issues concerning environmental justice, or “the fair treatment of people of all races, cultures, and incomes with respect to the development, adoption, implementation and enforcement of environmental laws, regulations, and policies.”

The mapping will affect how state funding for environmental improvement projects is directed towards different communities. State law requires that twenty-five percent of proceeds from greenhouse gas cap-and-trade auctions be invested in projects that benefit disadvantaged communities. Despite providing an important first-step in identifying highly impacted communities, the CalEPA press release warns that the mapping tool has some limitations. First, it is not directly applicable to analysis of cumulative impacts required by CEQA because it compares the relative burdens on communities but does not provide an absolute measure of those burdens. Second, the tool is not a substitute for a formal risk assessment measuring health concerns for the same reason.

The CalEPA indicates that the tool will undergo future revisions and will include additional factors, such as water quality information and other census information. The CalEnviroScreen version 1.0 was released after the circulation of two public review drafts, 12 public workshops, and more than 1,000 public comments and questions. The report is available at: http://www.oehha.ca.gov/ej/ces042313.html [John Wheat]

On December 12, 2012, the Fourth District Court of Appeal upheld the City of Newport Beach’s EIR for the Sunset Ridge Park Project, rejecting a claim that the city had engaged in impermissible “piece-meal” environmental review of a park project that was proposed next to a mixed-use village.  Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209.

On March 27, 2013, the Supreme Court of California denied a petition for review.  The Court of Appeal’s decision is now final.  The City may finally begin constructing the 13.7-acre park with active and passive recreational uses that was proposed in 2009.

Appellant Banning Ranch Conservancy, which first filed its petition for writ of mandate in trial court in April of 2010, had alleged that the City violated CEQA by not analyzing all the effects of the neighboring mixed-use Newport Banning Ranch project in the park project’s EIR.  The Court of Appeal disagreed, finding that the Newport Banning Ranch project would not be a “consequence” of the City’s park project even though a park access road would be constructed through the Newport Banning Ranch property.  The court also rejected all of the conservancy’s claims that the EIR had not adequately addressed the park project’s environmental impacts, including cumulative and growth-inducing impacts.  RMM Partner Whitman F. Manley and Senior Counsel Jennifer S. Holman represented the City of Newport Beach in the litigation. [Elizabeth Sarine]

 

On March 31, 2013, the District Court for the Northern District of California filed its decision in Center for Biological Diversity v. Bureau of Land Management (Case No. C 11-06174 PSG). Plaintiffs Center for Biological Diversity and Sierra Club challenged a decision by the Bureau of Land Management (BLM) to sell oil and gas leases on federal land in Monterey and Fresno counties. Plaintiffs argued BLM failed to comply with the National Environmental Policy Act (NEPA) and the Mineral Leasing Act (MLA) of 1920 and moved for summary judgment. The court determined that the leases violated NEPA, but not the MLA.

 The leases were for proposed oil and gas extraction from the Monterey Shale Formation. Oil and gas trapped in these shale formations was not accessible until improvements in hydraulic fracturing (fracking) techniques in the late 2000’s made extraction from these types of formations economically feasible. Previously, fracking only allowed oil and gas to be extracted in a limited zone radiating from wells drilled vertically into shale formations. Advances in drilling techniques have facilitated horizontal drilling at distances of 1,000 to 6,000 feet from a vertical extraction well.

 Before approving oil or gas development on public lands, federal agencies must comply with both the MLA and the Federal Land Policy Management Act (FLPMA) and undergo a “three phase decision-making process.” First, an agency prepares a Resource Management Plan. Second, the agency leases specific parcels, and third, the lessee submits an application for a drilling permit.

 In 2006, the BLM prepared a proposed Resource Management Plan/Final Environmental Impact Statement (PRMP/FEIS) regarding management of the Southern Mountain Diablo Range and Central Coast of California (subject area). The PRMP/FEIS included a “Reasonably Foreseeable Development Scenario for Oil and Gas” (RFD), which projected no more than 15 new wells over the next 15-20 years. The PRMP/FEIS addressed potential impacts of oil and gas development in the subject area.

 In 2011, BLM proposed a competitive oil and gas lease sale for approximately 2,700 acres in the area and prepared a corresponding draft environmental assessment (EA). Numerous comments submitted during the public review period expressed concerns surrounding fracking and climate change, but the BLM asserted that these issues were outside the scope of the EA. The EA considered air quality, water quality and special status species issues and evaluated three alternatives to the proposed leases. The EA did not discuss fracking in detail, arguing it was not relevant to its analysis of impacts. BLM asserted that site-specific impacts of fracking would be analyzed when permits to drill were submitted. Based on this EA, the BLM released a finding of no significant impact (FONSI) regarding the proposed leases. Plaintiffs protested the lease sale, but BLM dismissed the protest and the plaintiffs sued.

 BLM argued that NEPA analysis was not required for at least two of the leased parcels because these leases contained no surface occupancy provisions (NSO leases) that courts have previously determined function as a “right of refusal” rather than an actual lease for drilling. Therefore, the NSO leases did not constitute an “irretrievable commitment of resources.” However, two of the leases sold by BLM did not contain NSO provisions, and the court determined that BLM lacked the authority to unilaterally deny a permit based on any surface activity. As a result, the court found BLM was required to conduct a thorough NEPA analysis to determine if the sale would have a substantial environmental impact.

BLM argued that its previously prepared EA and FONSI sufficiently concluded that the lease sales would not have a substantial environmental impact. The court noted, however, that BLM based its analysis of the lease sale on the projection that only one well would be drilled across the four parcels to be leased. BLM reached this conclusion based on past data indicating that in the previous 20 years, none of the lease sales in the subject area had production wells drilled on them. Therefore, BLM reasoned that only one exploratory well would result from the leases. The court determined this approach failed to take into account all “reasonably foreseeable” possibilities as required by NEPA. The court noted evidence in the record indicated BLM’s approach was not reasonable due to the recent, dramatic advances in fracking technology. The court criticized the BLM for simply ignoring the potential for fracking by claiming it was outside the authority or jurisdiction of the agency. The court concluded that BLM unreasonably refused to consider the effects of fracking, due to the “reasonably close causal relationship” to the agency action (lease sales of federal land) at issue.

BLM also asserted that the EA was tiered from the regional management plan for the general subject area. The court rejected this argument because it determined that the 2006 PRMP/FEIS did not consider the potential concerns raised by fracking, having made no mention of fracking at all. BLM argued the PRMP/FEIS implicitly considered fracking in its projection of how many wells would be drilled on BLM land. The court determined, however, that BLM’s own statement that it lacked jurisdiction to consider the impacts of fracking in the EA contradicted its assertion that the PRMP/FEIS considered fracking. Further, the court found that evidence in the record demonstrated that the PRMP/FEIS did not address the scale of fracking resulting from newly developed techniques.

Finally, BLM argued that because the exact scope and extent of potential fracking that would occur on the subject property was unknown, NEPA analysis was appropriate for site-specific proposals. The court rejected this argument, noting that NEPA requires agencies to consider the range of possible environmental effects prior to committing resources. The court determined, based on the record, that it was unreasonable for BLM not to consider the potential for fracking operations resulting from the lease sales not including NSO provisions.

The court also found that the BLM’s refusal to consider the potential impacts of fracking on leased parcels tainted the assessment of “intensity factors” in its FONSI. For example, the BLM held that the project was not highly controversial, but the record included numerous comments from environmental groups and federal and state agencies raising serious concerns regarding the potential environmental impacts of fracking. BLM declined to acknowledge these concerns. Next, the court found BLM erroneously analyzed the potential effect of leases on public health and safety, particularly with regards to contamination of drinking water sources, as the record demonstrated that the proposed leases were located in close proximity to important freshwater sources. Finally, the court determined BLM unreasonably “discounted the uncertainty from fracking” that could have been resolved by further data collection. The court faulted BLM for failing to collect any data particular to the areas that would be affected by the leases. Instead, BLM merely summarized general data about fracking before dismissing the issue. Ultimately, these deficiencies in the environmental analysis of the lease sales led the court to conclude BLM had failed to take the requisite “hard look” at the issue that NEPA requires.

 As a separate issue, the plaintiffs argued the BLM violated the MLA, which requires that all leases of lands for oil or gas production be subject to a condition requiring the lessee to “use all reasonable precautions to prevent waste of oil or gas developed in the land…” The BLM leases included a provision requiring the lessees to use “reasonable precautions” to prevent waste, but the plaintiffs argued the leases also should have incorporated specific requirements to minimize waste. The court disagreed and determined that the MLA does not require lessees to use specific technologies, even if reasonable or economically viable. BLM therefore satisfied the MLA requirement. (John Wheat)

Judge Rules Portion of AB 900 Unconstitutional

April 4th, 2013 by Laura Harris

On September 27, 2011, Governor Jerry Brown signed AB 900 into law. AB 900 was designed to expedite environmental review under CEQA of certain “leadership projects.” To qualify under AB 900, projects must exceed $100 million and not result in any net additional greenhouse gas emissions, among other requirements.  One of the primary benefits for leadership projects under AB 900 is that any CEQA challenge will proceed directly to the Court of Appeal, significantly reducing the potential for lengthy litigation. This provision was intended to help get major construction projects off the ground sooner.

The provision of AB 900 allowing CEQA litigation to proceed directly to the appellate courts was challenged by the Planning and Conservation League, which claimed the law improperly removed jurisdiction from trial courts and weakened CEQA. (See Conservation League v. State of California (Alameda Sup. Ct. Case No. RG1262904).)

Judge Frank Roesch of Alameda County Superior Court, ruling from the bench on March 29, 2013, struck down this provision as unconstitutional for being “inconsistent with the constitutional mandates of where writs of mandate can be brought.” Petitioners did not challenge AB 900’s other provisions, including the minimum investment thresholds, job creation requirements, and greenhouse gas emission limit. Judge Roesch’s ruling leaves in place some time limits and other fast-tracking mechanisms available under AB 900. Currently, two solar energy projects and an office and research campus infill project have applied for qualification under AB 900. The State has not yet announced whether it will appeal the lower court’s ruling. [John Wheat]

On April 4, 2013, the Third District Court of Appeal ordered published its decision in Alliance for the Protection of the Auburn Community Environment et al. v. County of Placer (2013) ___Cal.App.4th___ (Case No. C067961). Real party in interest, Bohemia Properties, LLC (Bohemia), was represented by James Moose and Howard Wilkins of Remy Moose Manley, LLP. The Court of Appeal upheld the trial court’s sustainment of a demurrer filed by Bohemia and joined by Placer County. The court found that petitioner’s petition for writ of mandate was time barred under the statute of limitations set forth in Public Resources Code section 21167. Further, Code of Civil Procedure section 473, subdivision (b), which provides relief from an otherwise applicable statute of limitations for excusable mistakes, did not apply.

On July 8, 2010, the County of Placer certified an EIR prepared by Bohemia for the development of a 155,000-square-foot building. Alliance for the Protection of the Auburn Community Environment (Alliance) filed an appeal of the certification on Jul 16, 2010. On September 28, 2010, the County held a public hearing on Alliance’s appeal and again certified the final EIR. The county filed its notice of determination (NOD) for the project on September 29, 2010, triggering the 30-day statute of limitations set forth in Public Resources Code section 21167. Under this limitations period, the deadline to bring a challenge to the County’s approval of Bohemia’s EIR expired on October 29, 2010. Alliance did not file its petition until three days later, on November 1, 2010.

In January 2011, Bohemia filed a demurrer to Alliance’s petition, alleging that it was not filed within the limitations period. Alliance filed a motion for relief under Code of Civil Procedure 473. The trial court determined that Alliance’s petition was time barred and entered an order sustaining Bohemia’s demurrer without leave to amend and denying Alliance’s motion seeking relief under Code of Civil Procedure section 473.

On appeal, Alliance argued that the trial court erred in sustaining Bohemia’s demurrer, because, according to Bohemia, Code of Civil Procedure section 473 provides relief from its excusable mistake that resulted in the late filing of the CEQA petition. Code of Civil Procedure section 473, subdivision (b), states that a “‘court may, upon any terms as may be just, relieve a party of his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect,’” provided that the relief is sought within a reasonable time. The provisions of section 473 are to be liberally construed.

Alliance argued that the late filing was the result from a miscommunication from its filing service as to the deadline for receipt of the writ at the superior court. Alliance submitted the petition to the filing service prior to the statute of limitation’s deadline, in order to ensure its timely filing. Although Alliance’s counsel requested the petition be filed on October 29, 2010, the filing service arrived too late and did not file the petition until three days later. Based on these facts, Alliance argued that Code of Civil Procedure section 473 applies and the trial court should have overruled the demurrer.

The court of appeal, however, found Alliance’s argument unpersuasive under the Supreme Court’s decision in Maynard v. Brandon (2005) 36 Cal.4th 364 (Maynard). In Maynard, the Supreme Court found that section 473, subdivision (b) does not generally apply to dismissals attributable to a party’s failure to comply with the applicable limitations period in which to initiate a lawsuit. Rather, that section only provides relief from the consequences of many procedural errors committed during the course of a proceeding. Because the trial court in this case sustained the demurrer based on Alliance’s failure to file its initial petition within the applicable limitations period, the Court of Appeal found that relief was not available under section 473, subdivision (b).   

Finally, citing a series of cases in which courts have provided relief from CEQA’s short limitations period, Alliance argued that the court should provide similar relief here. The court disagreed, finding each of the cases relied upon by Alliance distinguishable in that they did not address a petitioner’s failure to timely file a petition for writ of mandate in the first instance.

Instead, the court found persuasive the Second District Court of Appeal’s decision in Nacimiento Regional Water Management Advisory Committee v. Monterey County Water Resources Agency (2004) 122 Cal.App.4th 961. In that case, the court noted that nearly every dismissal for failing to comply with CEQA’s timelines is “due to mistake, inadvertence or neglect on the plaintiff’s attorney, and thus few dismissals would be final if mandatory relief under section 473 were applied to such dismissals.’” As such, the dismissal statute would be “‘effectively nullified, and the legislative intent that CEQA challenges be promptly resolved and diligently prosecuted would be defeated.’”  Based on this reasoning, the Court of Appeal found that the trial court did not err in sustaining Bohemia’s demurrer without leave to amend.

On March 28, 2013, following a publication request submitted by James G. Moose, of Remy Moose Manley, LLP, the First District Court of Appeal ordered published its decision in Concerned Dublin Citizens v. City of Dublin (2013) ___Cal.App.4th___, Case No. A13570. The case is the first published decision to address the exemption from environmental review set forth in Government Code section 65457. That section provides an exemption from environmental review for a residential development that is consistent with a broader specific plan for which an EIR has been certified.

Background: In 2002, the City of Dublin approved the Eastern Dublin Specific Plan for the Dublin Transit Village Center development, a high-density mixed-use, transit and pedestrian-oriented development adjacent to the Bay Area Rapid Transit’s East Dublin/Pleasanton Station. The specific plan includes a “stage 1” development plan that establishes the permitted land uses and development standards for future development projects within the transit center. The city also certified a final EIR for the project.

The EIR for the specific plan was prepared as a program EIR, pursuant to CEQA Guidelines section 15168. It described general impacts and mitigation measures for, among other things, the specific plan stage 1 development plan. Under the stage 1 development plan, the parcel at issue in this case was designated as “site C” and was to include a maximum of 405 high density residential dwelling units and up to 25,000 square feet of retail space.

In 2011, following rescission of two previous proposals, Avalon Bay Communities submitted a proposal for development of site C. The planning commission approved the proposed site development review and map and recommended the city council approve the stage 1 development plan amendment, a stage 2 development plan, and a development agreement. The planning commission found the project was exempt from CEQA under Government Code section 65457, as a residential project that is consistent with a specific plan for which an EIR was certified. The organization Concerned Dublin Citizens (CDC) appealed the planning commission’s decision to the city council and the city council affirmed. CDC thereafter filed a petition for writ of mandate in the Alameda Superior Court challenging the exemption from environmental review. The superior court denied the petition and CDC appealed.

Residential Development. The Court of Appeal first considered CDC’s argument that the project is not a “residential development” and therefore the exemption under Government Code section 65457 could not apply. CDC acknowledged that the development as then-proposed included only residential units, but contended that the project is nonetheless a mixed-use development because the specific plan, the development plans, and the development agreement authorize up to 25,000 square feet of commercial usage in site C.

CDC argued that because Avalon Bay retains the option to convert 25,000 square feet of residential uses to retail space, the project falls outside the scope of the exemption. The Court of Appeal rejected this argument, explaining that the city code approval process for the project makes it clear that any future retail use on the project site will be subject to further discretionary review in the form of an amendment to the site development review approved for the project. As such, the only project that has been approved by the city for site C at this time is the development of residential uses.

The court further explained that the fact that the property is zoned for mixed-use does not convert the otherwise purely residential project into a mixed-use project. Avalon Bay is not entitled to develop retail property simply because such use would be consistent with zoning requirements. Further, the specific plan contemplates that before any use of the property is approved, there will be compliance with the site development process, which includes compliance with applicable environmental review. Therefore, approval of the project did not constitute approval of retail uses within site C, and the city properly characterized the project as “residential development” within the meaning of section 65457.

Specific Plan Consistency. CDC argued that in two respects the project is inconsistent with the transit center specific plan for which the EIR was certified. First, it contended that because the specific plan calls for mixed-use, the project must also be a mixed-use plan. According to CDC, the inclusion of ground-floor retail is integral to the transit center’s goal of creating a pedestrian-friendly environment, and if the city deleted the retail uses from area C, then the project would be inconsistent with the specific plan. The court disagreed.

The court explained that while the transit center is designed for mixed-use, commercial development in site C is not required by the specific plan. Further, the specific plan states only that retail uses are encouraged, not required. Thus, the absences of retail space did not render the project inconsistent with the specific plan.

Second, CDC contended that because the EIR for the specific plan was a program-level EIR, a tiered-project-specific EIR necessarily was required to follow the program EIR. The court found this argument to be without legal support. Contrary to CDC’s contention, nothing in the CEQA statute or Guidelines mandates a particular level of environmental review in evaluating later projects within the scope of a certified program EIR. Although in some cases, it will be necessary to prepare a negative declaration and in others to prepare a full EIR, in others, the analysis will be completed by determining that the subsequent project is exempt from further analysis under CEQA—as was the case here.

Section 65457 Qualification to the Exemption. Lastly, the court held that the qualification to the Government Code section 65457 exemption did not apply. Government Code section 65457 provides that the exemption does not apply if, after certification of the program EIR, an event specified in Public Resources Code section 21166 (requiring preparation of a supplemental EIR) has occurred, “‘unless and until a supplemental environmental impact report for the specific plan is prepared and certified.’” Thus, explained the court, the qualification to the section 65457 exemption turns on whether, after certification of the EIR, circumstances have changed to the extent that reliance on the EIR is unwarranted. Here, the court found that substantial evidence supported the city’s determination that the circumstances requiring additional environmental review of the transit project were not present. Therefore, the qualification to the application of the Government Code section 65457 did not apply.