Archive for July, 2012


On July 25, 2012, California Governor Jerry Brown along with the Department of the Interior and NOAA announced revisions to the proposed framework for the Bay Delta Conservation Plan (BDCP). This new preferred alternative proposal, along with a range of alternative proposals, will be subject to a full public environmental review.  In making their announcements today, state and federal officials emphasized that the current state of the California water system is unsustainable from both an environmental and an economic perspective. The BDCP will play an important role in helping California achieve its co-equal goals of a reliable water supply and a healthy Bay Delta ecosystem.

A major aspect of the plan proposes construction of a pair of a water conveyance facilities designed to move water under the Delta from the north to the federal and state pumps at Tracy in the south. This facility as proposed could play an important role in the restoration of California’s Sacramento-San Joaquin River Delta. The revised preferred alternative includes water intake facilities with a total capacity of 9,000 cubic feet per second. The previous proposal’s water intake facilities operated at an intake capacity of 15,000 cubic feet per second.

The conveyance facility has been proposed, in part, to address the aging system of levees in the Delta that are at risk of collapse in an earthquake. If enough levees failed in a significant seismic event, salt water from the ocean could intrude up the Delta as far as the Tracy pumps. This scenario would make the pumps unusable and disrupt California’s water supply. Among numerous other components, the BDCP framework also calls for restoring approximately 113,000 acres of wetlands, floodplains and other habitat within and surrounding the Delta.

Parties working on the BDCP expect to issue a draft plan and corresponding EIS/EIR for public review this fall. Leading up to this release, state and federal agencies will work closely with public water agencies and other interested parties. Based on this input, state and federal agencies will continue to refine the revised proposals. After completion of this preliminary work the BDCP will release an updated progress report.

The official press release for the July 25, 2012 announcement can be found here: http://baydeltaconservationplan.com/Libraries/Dynamic_Document_Library/Joint_Announcement_Press_Release-7-25-12.sflb.ashx

(By John Wheat)

 

On June 14, 2012, the Ninth Circuit Court of Appeals issued its decision in United States v. 32.42 Acres of Land. In this case, the California State Lands Commission appealed from a district court’s final judgment in an eminent domain case where the United States took a fee simple interest in 32.42 acres of land on behalf of the U.S. Navy.

In 1911, the state legislature granted the property at issue to the City of San Diego, which leased the property to the Navy for 50 years, with the right to renew the lease for an additional 50 years. This land was later transferred to the San Diego Port District. When the Navy sought to exercise its exclusive option to renew the lease in 1996, the Port and Commission opposed the extension, and the United States brought a condemnation action. This action was settled and the lease was granted, but in 2005, the Navy determined it wanted to own the property in fee simple. The United States again filed a condemnation action. The Commission filed a motion for summary judgment, contending that the federal government could not extinguish California’s public trust rights. The trial court denied the motion, and the Commission appealed.

On appeal, the parties agreed that the federal government may take the property, and that it could put it to any use, including non-trust uses. The parties disagreed over the result of potential transfer of ownership of the property to a private party in the future. The Commission argued that the declaration of taking should not extinguish California’s public trust, but instead should only make it “quiescent” so that the public trust has no effect while the United States owns the property, but remerges if the land is later sold to a private party. The court rejected all of the Commission’s arguments in support of this position.

First, the Commission contended that the equal-footing doctrine required the federal government to offer a compelling reason for granting away submerged lands. Under the equal-footing doctrine, when a new state is admitted into the Union, it gains the same rights, sovereignty and jurisdiction as the original States; therefore, the doctrine provides a state presumptive title to its submerged lands when it joins the Union. The Commission argued that a compelling reason was required prior to granting these lands away because courts “did not ‘lightly infer’” such a grant when the United States held title to submerged land prior to statehood. As a result, the Commission asserted the federal government should not be able to grant away a state’s submerged land without being held to the same standard for granting away a territory’s submerged land. The court responded that the Commission misinterpreted the equal-footing doctrine. Under the equal footing doctrine, courts begin with a strong presumption against defeat of a state’s title. This presumption can be overcome, as the Constitution’s Property Clause gives the federal government the power to divest a future state of its entire title in submerged lands so long as the federal government makes its intention to do so plain, and the conveyance is for a public purpose.

Second, the Commission argued that the equal-footing doctrine prevented the federal government from extinguishing California’s public trust rights by eminent domain because “nothing but the Constitution can take away from the states what they received under the equal footing doctrine.” The court noted the Commission relied on cases to support this argument that were inapplicable. The court clarified that while the equal-footing doctrine prevents the federal government from granting property held by a state to a third party, it does not prevent the federal government from gaining new property through its eminent domain power.

Third, the Commission argued the law of federal navigational servitude supported its argument that the federal government could not extinguish state public trust rights because the law of navigational servitude defines “the extent to which the states have surrendered their public trust rights by the Constitution.” The court again pointed out that the Commission failed to distinguish between what the federal government may do with land when it does or does not have title to that land. The court held that the scope of the federal navigational servitude does not limit the United States’ power of eminent domain.

Fourth, the Commission invoked the seminal Illinois Central Railroad case to argue that the public trust doctrine restricts the ability of both federal and state governments to alienate public trust lands free of the public trust. The court rejected this argument, pointing out that the public trust doctrine remains a matter of state law. If California’s public trust interest in the property were to survive the federal government’s attempt to condemn it, it would improperly subjugate the federal government’s eminent domain power to state law. This would violate the Constitution’s Supremacy Clause.

Finally, the Commission unsuccessfully argued that the United States’ taking of the property subject to a “quiescent trust” would serve the Navy’s purpose equally well, so preserving California’s public trust would not frustrate the United States’ power of eminent domain. The court stated that the United States sought to extinguish the state’s public trust, and therefore, whether it could accomplish its objective by taking a lesser interest in the property is irrelevant. The Navy determined it wanted the property in fee simple and unencumbered by California’s public trust. The court noted it did not have the jurisdiction to review the wisdom of that determination. (By John Wheat)

 

 

Yesterday the Governor’s Office of Planning and Research, Senate leadership and the California Energy Commission gathered together with journalists and over 100 people on the Capitol steps for a clean tech exposition to celebrate the growth of California’s clean tech industry through partnership with the U.S. Navy.

For years California’s legislature and the CEC have worked to provide funding for research and development of new fuel sources through AB 118 funds and federal funding. The expo featured the success stories of companies that received seed funding and have now developed commercially viable large scale biofuel and alternative energy products. Together these companies have hundreds of patents and provide thousands of jobs here in California. “Our partnership with the US Navy and innovative California companies represents how the State’s energy policies are being adapted to develop alternative fuels, foster clean energy resources, and improve energy reliability,” said California Energy Commission Chair Bob Weisenmiller.

The Navy has set aggressive goals to reduce energy consumption and increase the use of alternative energy and fuels. By 2020 the Navy in California will use 50 percent less energy overall and half of its installations will achieve “net zero” greenhouse gas emissions through the use of energy conservation and renewable energy sources. The Secretary of the Navy has affirmed that energy security increases national security and saves taxpayers money. Providing local energy sources keeps troops on mission and reduces their exposure while protecting supply lines. The Navy can save money on its fuel budget through energy efficiency measures and by using new, cost effective biofuels. According to the U.S. Department of Defense, every $10 increase in the price of a barrel of oil equals an additional $1.3 billion to its annual energy bill.

To help meet these goals the Navy has partnered with California and utilized the products of local companies like Solazyme, BioDeco, Borego Solar, and Sun Power to fuel its jets and power its bases.

The expo was part of Sacramento Navy Week, and included a presentation of a Senate Resolution to recognize the Navy for its contributions to California. (By Holly W. Roberson)

On July 18, 2012, the Second District Court of Appeal certified its ruling for partial publication in City of Maywood v. Los Angeles Unified School District (2012) __Cal.App.4th__ (Case No. B233739). In this case, the City of Maywood sought to overturn the Los Angeles Unified School District’s (LAUSD) certification of an FEIR analyzing the environmental consequences of constructing a high school. The trial court rejected most of the city’s claims, but found the FEIR deficient in four ways, including inadequate analysis of pedestrian safety. The trial court entered a peremptory writ and awarded attorneys’ fees to Maywood. The LAUSD appealed. The appellate court rejected most claims against the FEIR, but agreed, in an unpublished section, that further analysis of pedestrian safety impacts was required. In the only published section of its decision, the Second District clarified the proper test for determining whether the prevailing party was entitled to attorneys’ fees.

The trial court awarded Maywood approximately $670,000 in attorney’s fees pursuant to Code of Civil Procedure § 1021.5. On appeal, LAUSD argued that Maywood could not recover fees because the “primary purpose” of the lawsuit was to benefit Maywood “whether for financial or other reasons.” To obtain attorneys’ fees under § 1021.5, the party seeking the fees must show that the litigation (1) served to vindicate an important public right; (2) conferred a significant benefit on the general public or a large class of persons; and (3) was necessary and imposed a financial burden on plaintiffs which was out of proportion to their individual stake in the matter. Each of these elements must be satisfied for an award to issue.

The appellate court relied on the California Supreme Court’s decision in Conservatorship of Whitley (2010) 50 Cal.4th 1214 to clarify the method for evaluating the necessity and financial burden element of § 1021.5. The Supreme Court determined “the necessity and financial burden of private enforcement” requirement is actually comprised of two distinct elements: a necessity prong and a financial burden prong. The court held “a strong nonfinancial motivation does not change or alleviate the ‘financial burden’ that a litigant bears. Only offsetting pecuniary gains can do that.” Further, the Supreme Court noted that the legislative history for §1021.5 did not focus on the litigants’ initial subjective motivation, but rather, was intended to alleviate the financial burdens associated with public interest litigation. Lastly, the Supreme Court explained that determining whether a particular non-pecuniary interest was sufficient to preclude recovery of attorneys’ fees would require speculative inquiry lacking in objective criteria.

While the holding in Whitley focused on private enforcement actions, the Second District Court of Appeal determined that all of the factors the Supreme Court discussed in Whitley apply equally to public entity litigants. The legislative history for § 1021.5 indicated that the Legislature intended the same requirements to apply to private and public litigants. The appellate court also rejected a substantial portion of LAUSD’s argument for relying on cases preceding Whitley. Whitley has made it clear that a litigant’s non-pecuniary interests are not relevant in evaluating § 1021.5’s financial burden criterion.

The appellate court indicated that, due to reversing significant portions of the trial court’s order, it also had to reverse the order granting attorneys’ fees because any grant or denial of attorneys’ fees under § 1021.5 must follow remand and be based on the results obtained in the new judgment. The trial court was directed to reassess whether fees were appropriate after the outcome of the appeal, and if so, the appropriate amount of any such fees, applying the standards in Whitley. (By John Wheat)

Today the California State Senate approved the issuance of $2.6 billion in state bonds to fund the development and construction of a high-speed rail system, which will allow the State to receive $3.2 billion dollars in matching funds from the federal government for the project. The Assembly passed the plan on Thursday.

The first segment of construction will be in the Central Valley, between Merced and Fresno, where the funding can begin to provide badly needed jobs, support for long-range smart growth and land use planning around the high-speed rail station hubs. Ultimately, high-speed rail will create significant reductions in greenhouse gas emissions and other air pollutants as rail transit will provide an efficient alternative to automobile travel between the major metropolitan areas of California.

Three CEQA lawsuits are pending in Sacramento County Superior Court challenging the adequacy of the EIR prepared for the Merced to Fresno section of the high-speed rail project. A ruling on the merits of the petitions is anticipated in early 2013, before the expected start of construction in the spring of 2013.

On June 28, 2012, in W.M. Barr & Company Inc. v. South Coast Air Quality Management District ___Cal.App.4th___ (Case No. B233892), the Second District Court of Appeal upheld the South Coast Air Quality Management District’s Rule 1143, which requires manufacturers of consumer paint thinner and solvent products to limit the use of Volatile Organic Compounds (VOCs) in their products in order to meet the District’s obligations under the federal Clean Air Act and the California Clean Air Act.

In July 2010, the District adopted Rule 1143. The District believed that Rule 1143 would cause manufacturers to replace the VOCs with acetone, a highly flammable solvent. The District therefore prepared an environmental assessment under CEQA evaluating the fire hazard risks of substituting acetone and proposing specific product labeling to alert consumers.
W.M. Barr & Company, Inc. (Barr), a manufacturer of paint thinners and solvents, challenged Rule 1143 on the grounds that (1) Rule 1143 was preempted by the Federal Hazardous Substance Act (FHSA); (2) Rule 1143 was preempted by regulations simultaneously adopted by the California State Air Resources Control Board (the Board); and (3) the District did not comply with CEQA because it failed to consider alternatives to the measures it adopted. The trial court rejected each of these claims and the Court of Appeal affirmed.

First, the Court of Appeal found that Rule 1143 was not federally preempted. Barr argued that the FHSA preempts Rule 1143 because Rule 1143 requires products to include a “hang-tag” stating that the product has been formulated to meet low VOC standard and to have warnings on the label. According to Barr, the hang-tag requirement addresses the same fire risks as the FHSA, which includes requirements for fire warning labels, and therefore the FHSA preempts the rule’s hang-tag requirement. The Court of Appeal rejected this argument for two reasons. First, the language of the FHSA, which covers “directions for use,” does not expressly preempt the hang-tag because Rule 1143’s hang-tag requirement only requires the hang-tag to instruct users to see the product’s warning label, rather than containing specific directions for use under federal labeling requirements. Second, while Rule 1143 ostensibly addresses “increased fire hazards,” the hang-tag does not directly address fire hazards. Instead, the primary (and narrower) risk the hang-tag addresses is the risk the user will not be familiar with the hazards of the product because it has been reformulated to comply with Rule 1143. The broader question of fire risk is secondary to Rule 1143, and remains governed by the FHSA. Therefore, the court concluded, the FHSA did not preempt Rule 1143’s hang-tag requirement.

Next, the court considered whether state law preempts Rule 1143 and concluded it does not. Barr argued that under California Health and Safety Code section 41712, subdivision (f), Rule 1143 is preempted by the Board’s general purpose regulation of cleaning products, which bars the District from adopting a regulation for a consumer product for which the Board has already adopted a regulation. Barr asserted that because the Board had adopted a regulation for general purpose cleaners, Rule 1143 conflicted with this regulation and was therefore preempted. The court disagreed, explaining that Health and Safety Code section 41712, subdivision (f) states: “[a] district shall adopt no regulation pertaining to disinfectants, nor any regulation pertaining to a consumer project that is different than any regulation adopted by the state board for that purpose.” The court found that the phrase “any regulation already adopted by the state board for that purpose” implicitly refers to regulations already adopted by the Board. This language is clear: if the Board has not yet adopted a regulation in the area, an air management district would not, by definition, be able to adopt a regulation that was different. Here, the Board’s regulations governing paint thinners and multi-purpose solvents were enacted after Rule 1143, not before. Therefore, the court held that Rule 1143 was not preempted by state law.

Finally, the court considered Barr’s CEQA claim. Under CEQA, the District’s adoption, amendment or repeal of a District rule is a certified regulatory program. Certified regulatory programs are considered functionally equivalent to the preparation of an EIR or negative declaration and therefore, in lieu of an EIR or negative declaration, agencies may prepare a substitute environmental review document. In the case of the District, the substitute document is what the District terms an “environmental assessment.” Barr argued the District’s environmental assessment for Rule 1143, which functioned as a mitigated negative declaration, violated CEQA because it failed to consider feasible alternatives. The court rejected this argument because, as a functional equivalent to a mitigated negative declaration, the environmental assessment was not required to analyze feasible project alternatives. Substantial evidence supported the District’s conclusion that Rule 1143 would not cause any significant environmental impacts. Therefore, the District was not required to analyze or make findings regarding alternatives to Rule 1143. (by Laura Harris)

City of Hayward v. Board of Trustees of the California State University (1st Dist. June 28, 2012) __Cal.App.4th__ (Case Nos. A13412, A132424, A131413, A132423) 

October 17, 2012, Petition for Review granted; California Supreme Court Case No. S203939

On May 30, 2012, the First Appellate District affirmed a lower court’s grant of a petition for writ of mandate challenging the expansion of the California State University (CSU) East Bay campus and the certification of an EIR for the project under CEQA. The trial court had agreed with plaintiffs City of Hayward and two local community groups, Hayward Area Planning Association and Old Highlands Homeowners Association, that the EIR prepared by the Board of Trustees of the California State University (the Trustees) failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands. The First District, however, disagreed with the trial court and found the EIR to be adequate in all respects except it determined the EIR’s analysis of potential environmental impacts to parkland was not supported by substantial evidence. The court, therefore, directed that the scope of the writ of mandate be modified.

The case involves a challenge to the Trustees’ 2009 approval of a master plan to guide the development of the California State University East Bay (the University) for the next 20 to 30 years in order to expand the campus’s physical capacity to meet its assigned enrollment ceiling.  In March 2009, a final EIR was issued which concluded that the buildout under the master plan will result in significant impacts in four categories despite the implementation of all feasible mitigation measures: (1) aesthetics, (2) air quality, (3) cultural resources, and (4) traffic. All other impacts, including impacts on public services, were found to be insignificant or fully mitigated.

In October 2009, the city and local community groups filed separate petitions for writ of mandate challenging the certification of the EIR and approval of the master plan. The cases were coordinated for briefing and hearing. On October 28, 2010, the court issued an order granting petition for writ of mandate. On December 21, 2010, separate judgments were entered in the two cases. The trial court held that the EIR failed to adequately analyze impacts on fire protection and public safety, traffic and parking, air quality, and parklands. The Trustees appealed and the cases were consolidated on appeal for briefing and decision.

Fire and Emergency Medical Services

On appeal, the court disagreed with the trial court’s finding that the EIR’s analysis of the master plan’s impacts to fire and emergency medical services was inadequate. The EIR had found that the master plan would result in the need for 11 additional firefighters and additional fire station facilities to house the staff required to serve the increased population associated with the master plan. The EIR concluded, however, that expansion or construction of a fire station would not result in significant environmental impacts due to the limited area that is typically required to build a fire station (between 0.5 and 1 acre) and its urban location. The appellate court found that the record supported this conclusion in the EIR. The court concluded that the determination that the potential impacts of the fire station would be less than significant was based on the information available (i.e., the known size requirements and the general area within which the additional facilities would necessarily be placed) which constituted substantial evidence. The court noted that, given the unknown size and precise location of the future facilities and the absence of control by the Trustees of over the future decision-making process (because emergency services are provided by the City’s Hayward Fire Department), no more detailed analysis of the potential impacts of the potential fire station was possible or required.

The court also found that no mitigation was necessary to address the need for additional fire protection services due to the potential increase in response time caused by the increase in population under the master plan. The court noted that, under the California Constitution, the obligation to provide adequate fire and emergency medical services fell to the city. Furthermore, the court, citing CEQA Guidelines § 15382 and Goleta Union School District v. Regents of University of California (1995) 37 Cal.App.4th 1025, held that the need for additional fire protection service is not an environmental impact that CEQA requires a project to mitigate.

The court rejected the respondents’ argument that under City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, the Trustees were required to pay for an additional fire station and the salaries of additional fire fighters. In City of Marina, mitigation to fund improvements to fire protection services was required because the EIR concluded the project would result in significant environmental impacts. In contrast, the court noted, the master plan EIR determined, based on substantial evidence, that implementation of the master plan would not result in a significant impact.  

The court also rejected the respondents’ reliance on Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, to argue that delayed response times must be evaluated as a “health and safety problem” under section 15126.2 of the Guidelines. In Bakersfield Citizens, the court found that the EIR for a shopping center was inadequate because it failed to correlate identified significant and unavoidable air quality impacts to resultant adverse health effects, and, therefore, the public was not apprised of the health consequences that result when more pollutants are added to a nonattainment basin. The court noted that in the University EIR, a concerned citizen reading the EIR would understand the impacts of the proposed increase in population on emergency services in the area. The EIR analyzed the response times and their impact on public safety, concluded that the project will cause response times to fall to an inadequate service level, found that additional fire fighters will be required to maintain adequate service levels, set forth the measures needed to provide adequate emergency services, and concluded that those measures will not have a significant impact on the environment.

Furthermore, the court found that the potential dangers associated with delayed response times do not mandate a finding of significance under CEQA Guidelines § 15065(a)(4). Based on the analysis in the EIR, and because the city has a constitutional obligation to provide adequate fire protection services, there was no basis to conclude that the increased population would cause a “substantial adverse effect on human beings.”

Finally, the court found no deficiency in the EIR’s analysis of cumulative impacts on public services. The EIR based its analysis of cumulative impacts on the evaluation of cumulative impacts made in connection with the adoption of the city’s general plan, which found no cumulative impact from city growth on fire services. Accordingly, the EIR reasonably concluded that any cumulative impact of the growth will be less than significant.

Traffic Impacts

The plaintiffs also objected to the analysis of one potential location for future construction of affordable faculty housing, arguing that the EIR should have evaluated potential impacts to additional roads in the immediate neighborhood. The court found, however, that the analysis of traffic and parking impacts of potential sites for faculty housing was sufficient because no site had yet been selected. As a program EIR, therefore, the master plan EIR appropriately evaluated the potential cumulative impacts of locating faculty housing near Grandview Avenue on the primary intersections in that area. Any site-specific impacts to the smaller residential streets in the neighborhood and related mitigation measures, however, were properly deferred until the affordable faculty housing project is planned and a project EIR is prepared.

Furthermore, the court found the reliance on a Transportation Demand Management (TDM) program to mitigate significant impacts caused by increased parking and traffic did not constitute impermissible deferred mitigation. The court noted that the TDM sets forth specific alternative policies that may be utilized to mitigate traffic growth, incorporates quantitative criteria, and sets specific deadlines for completion of the parking and traffic study timelines for reporting to the city on the implementation and effectiveness of the measures that will be studied. The plan also included a monitoring program which ensures that the public will have access to the information necessary to evaluate compliance with the Trustees’ obligations.

Parklands Impacts

In assessing the potential impact on area parklands, the EIR concluded that the impact on the East Bay Regional Park District would be insignificant because the master plan included ample on-campus recreation offerings and, therefore, use of off-campus recreational resource by the additional student population would be nominal because the on-campus facilities would adequately support the campus population. The court agreed with the trial court that this analysis was inadequate.

First, because the EIR focused on the entire regional park district, it failed to perform a project-level analysis of impacts to specific parks. In particular, it failed consider the specific impacts on two neighboring parks, Garin Regional Park and Dry Creek Pioneer Regional Park. The Trustees argued that the EIR’s analysis was sufficient because it was reasonable to conclude that the new student population would make the same “nominal” use of these parks “consistent with long-standing use patterns” and that the master plan included ample on-campus recreation offerings. The court disagreed, noting that the EIR failed to provide factual evidence to support this assumption. There were currently 12,586 full-time-equivalent students enrolled at the university. The EIR disclosed no attempt to determine the extent to which these students made use of the adjacent parklands or to extrapolate from such data estimated increased usage by the additional approximately 5,500 anticipated full-time equivalent students. Nor was any such calculation made for the existing approximately 1,200 residential students and the 600 students anticipated to live in the new student housing project. Moreover, the record contained no evidence regarding overall usage or capacity of the neighboring parks. As the trial court noted, evaluating the potential impact on the entire East Bay Regional Park District cast too broad a net and did nothing to expose potential impacts on the neighboring parks.

Furthermore, the fact that there were ample on-campus recreation opportunities did not support the finding that additional use of the nearby regional parks would be “nominal.” The types of recreational opportunities offered on campus and in the neighboring parks were significantly different. The athletic fields, recreation center, swimming pool and grassy fields found on campus were not comparable to the recreational opportunities available in the 4,763 acres of neighboring parkland. Without any data concerning the extent to which the current-size student body (or anybody else) utilized the adjacent parks, the court concluded it was not reasonable to assume that the “informal trails” available on a 130-acre open space reserve on campus would keep significant numbers of new students from making use of the neighboring parklands.

The court accordingly reversed the trial court’s judgment except to the extent it required the Trustees, before considering certification of a revised EIR, to revise their analysis of the impacts of the master plan and related site-specific projects to area parklands.