Archive for August, 2013


In Friends of Oroville v. City of Oroville, ___Cal.App.4th ___ (Aug. 19, 2013, Case No. C070448), the Third District Court of Appeal ruled that the City of Oroville misapplied the threshold-of significance standard in Assembly Bill 32 (the California Global Warming Solutions Act of 2006) when it approved an EIR for a new Wal-Mart Supercenter. In the published portion of the opinion, the court found that the city identified the proper significance threshold for the Wal-Mart project’s greenhouse gas (GHG) emissions. But the court held that the city failed to apply the standard properly because it a) applied a “meaningless” number to determine insignificant impact and b) failed to ascertain the existing GHG emissions for the project. The case provides clear guidance for an agency making a determination under CEQA of GHG emissions impacts.

The project involved the relocation and expansion of an existing Wal-Mart store. At the time the EIR was developed, neither the city nor the Butte County Air Quality Management District had adopted a plan for reducing greenhouse gas emissions that would be applicable to the project. Therefore, the city adopted a standard that asked whether the project would “significantly hinder or delay” California’s ability to meet the reduction targets in Assembly Bill 32, which seeks to reduce greenhouse gases including carbon dioxide to 1990 levels by the year 2020. The EIR noted that the State Air Resources Board’s Scoping Plan for achieving that goal calls for cutting approximately 30 percent from “business-as-usual” emission levels projected for 2020. The court found this standard proper.

The city’s error came when it compared the project’s estimated carbon dioxide emissions at build-out with the entire state of California’s 2004 GHG emissions. The calculation showed the project’s emissions constituted just 0.003 percent of the state’s total emissions. The EIR concluded the impact was less than significant because it would not significantly hinder or delay California’s ability to meet the GHG reduction targets in Assembly Bill 32. In a sharp rebuke, the court called the comparison “meaningless” and “worse than apples to oranges” because “[o]f course, one store’s GHG emissions will pale in comparison to those of the world’s eighth largest economy.”

The court pointed to Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327, for the proper application of the standard. According to the court, the relevant question is whether a project’s emissions should be considered significant “in light of the threshold-of significance standard of Assembly Bill 32, which seeks to cut about 30 percent from business-as-usual emission levels projected for 2020 [emphasis added].”

The court also found the EIR deficient because it failed to ascertain or estimate the effect of the project’s mitigation measures on GHG emissions. The court stated: “Without these determinations, ascertaining whether AB 32’s target reductions are being met is difficult if not futile.” In its disposition, the court reversed the trial court’s denial for writ of mandate and remanded with directions to grant the petition as to the issue of greenhouse gas emissions and payment of transportation-related fees.
[written by Deb Kollars]

The Fourth District recently ordered publication of its decision in San Diego Citizenry Group v. County of San Diego (July 30, 2013, Case No. D059962) __Cal.App.4th__. The Fourth District upheld the trial court’s decision rejecting a challenge to the adequacy of the county’s EIR, which analyzed a zoning ordinance intended to encourage the development of boutique wineries. But the appellate court determined the trial court had erred in awarding the county the costs of preparing planning commission transcripts for the administrative record because these transcripts were not in existence at the time of the board of supervisors’ approval of the ordinance.

Facts and Procedural Background

This case arises from the County of San Diego’s efforts to promote the growth of grapes and the expansion of the wine industry. In 2006, the board of supervisors began exploring ways to allow boutique wineries to expand and operate by right within the county. The county received public comments revealing concerns about traffic and related traffic safety impacts, especially on privately owned rural roads. Nonetheless, in 2008, the board directed its staff to develop a “tiered winery ordinance” that would allow boutique wineries by-right.

In 2009, the county prepared and circulated for public review a Draft EIR analyzing the potential environmental impacts of adopting the winery ordinance. The DEIR concluded that the project would cause 22 significant and unmitigated environmental impacts as a result of approving an unlimited number of future wineries by-right. Despite these impacts, the board adopted a Final EIR and a statement of overriding considerations in 2010. San Diego Citizenry Group filed a petition for writ of mandate challenging certification of the EIR. The Group requested that the county prepare the administrative record.

The trial court denied the petition and ordered the petitioner to reimburse the county for the costs of preparing the record. San Diego Citizenry Group appealed.

The Appellate Court’s Decision

The project objectives were proper.

On appeal, the petitioner argued that the county did not properly make a “preliminary policy determination” regarding the objectives for the project, and in particular, that the EIR improperly relied on these objectives when analyzing the feasibility of mitigation measures. But the court quickly dispensed with this argument, noting that the county included within the EIR a “statement of the objectives sought by the proposed project” in compliance with CEQA Guidelines section 15124. In fact, the county defined nine objectives for adopting its proposed ordinance amendment.

Adequacy of discussion and mitigation of impacts to private roads

Next, the petitioner argued the EIR was inadequate because it did not discuss “any ‘additional’ mitigation measures in ‘meaningful detail.’” But the court noted that the petitioner failed to identify any potentially feasible mitigation measures that the EIR omitted. The county was not required to engage in an extensive discussion of infeasible mitigation measures, including mitigation measures that are incompatible with the project’s “core” objectives. Requiring the county to analyze the incorporation of mitigation measures or alternatives that would defeat a project’s primary objectives would run contrary to CEQA’s definition of “feasible.”

The petitioner also attacked the adequacy of the EIR’s discussion of impacts to private roads caused by the ordinance because the EIR rejected a mitigating traffic measure previously adopted in 2008. But the court determined that the county was not required to adopt the 2008 traffic measure simply because it was suggested and addressed impacts identified in the EIR. An agency may delete previously adopted mitigation during review of a project so long as it states a legitimate reason for doing so. The court determined the county had a legitimate reason for not adopting the 2008 measure because it was developed for a completely different project involving private landowner agreements, rather than by-right uses. Furthermore, the FEIR included mitigation measures, such as limitations on the size of vehicles allowed to enter boutique wineries and various restrictions on operations at the wineries, which specifically addressed these impacts to private roads.

The EIR adequately discussed potential environmental impacts

The petitioner argued that the EIR did not sufficiently analyze the project’s potential significant environmental impacts for a variety of reasons.

Focusing on potential future impacts to traffic, appellants first argued that the EIR analysis was insufficient because the county did not use its “best efforts” to predict how many by-right wineries could be developed under the ordinance. But the court noted that the EIR did not “simply state that the level of development is unknown and then label each impact as significant without meaningful analysis or discussion.” The county based a prediction of future boutique winery development on the pattern of development of existing grape growers and wineries. The county had surveyed 26 existing wineries, eleven of which responded, with eight indicating an intention to convert to boutique wineries under the proposed ordinance. The FEIR analyzed the amount of traffic each new boutique winery would generate and determined the maximum concentration of wineries that could be developed. Therefore, the court found the FEIR adequately analyzed the project’s traffic impacts based on existing and anticipated development.

Second, the petitioner argued that the EIR did not sufficiently identify project impacts to water supplies. But the court disagreed, noting that the FEIR met the standard under Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, that “a conceptual plan EIR, such as one for a general plan amendment to allow proposed development,” must identify “the likely source of water for new development, noting the uncertainties involved, and discussing measures being taken to address the situation in the foreseeable future.” The county also collected survey data from wineries located in San Diego and Riverside counties to better estimate impacts on water supplies. This was sufficient.

Third, the petitioner argued the FEIR’s discussion of grading permits was “materially misleading” because it suggested grading permits could mitigate for “every type of environmental impact associated with the winery.” Determining that the FEIR actually acknowledged the exact opposite, the court rejected this argument.

Fourth, the petitioner argued that the board of supervisors’ statement of overriding considerations was invalid because the FEIR was deficient and did not provide a basis for the findings. But the court determined the EIR actually relied on conservative assumptions and disclosed potential environmental impacts in an informative matter. Thus, the board was within its discretion to rely on the EIR when it adopted the statement of overriding considerations.

Fifth, the petitioner argued that the ordinance was inconsistent with the county’s general plan. Specifically, the petitioner argued the ordinance allowed by-right wineries in environmentally constrained areas for which the general plan requires environmental review of development projects. The court found, however, that an EIR is not required to be consistent with a general plan; instead, the EIR must identify and discuss any such inconsistencies. The EIR in this case sufficiently discussed the alleged inconstancy, and the petitioner could not show that the county’s decision to exclude wineries from the environmentally constrained area provisions of the general plan was “unreasonable.”

Reimbursement for transcript costs

Finally, the Court of Appeal concluded that the trial court had erred when it ordered the petitioner to reimburse the county for the cost of preparing certain transcripts for the record since the transcripts were not created until after the approval of the winery ordinance. Section 21167.6, subdivision (e)(4) requires the party preparing the record to include transcripts or minutes “that were presented to the decisionmaking body prior to action on environmental documents or on the project.” The trial court had ordered appellants to pay approximately $6,000 for the costs of creating transcripts of planning commission hearings, but appellants successfully argued that they should not have to pay these costs because it was undisputed that the planning commission transcripts were not before the board when it made its decision to approve the winery ordinance.

On August 16, 2013, Sacramento Superior Court Judge Michael Kenny issued a ruling in Tos v. California High Speed Rail Authority(Case No. 34-2011-00113919-CU-MC-GDS), finding that the High Speed Rail (HSR) Authority’s funding plan did not comply with Streets and Highways Code Section 2704.08, which was codified by Proposition 1A, approved by the statewide voters in 2008. But Judge Kenny ultimately concluded that no writ of mandate rescinding approval of the funding plan, invalidating the legislative appropriation, or invalidating subsequent project approvals should be issued at this time.

The Authority approved a funding plan for the HSR on November 3, 2011. Under S&W Code section 2704.08(c), the funding plan needed to identify the “sources of all funds to be invested in the corridor” and to certify that the “authority has completed all necessary project level environmental clearances necessary to proceed to construction.” Petitioners filed a complaint and petition on November 14, 2011, asserting that the funding plan did not comply with Section 2704.08. On July 18, 2012, before the trial court issued its ruling, the Legislature enacted Senate Bill 1029, appropriating state bond funds and available federal funds for the construction of one of two alternative Initial Operating Sections (IOS).

Although Judge Kenny found that the funding plan did adequately identify sources of funds for a segment of the IOS referred to as the Initial Construction Section (ICS) from Madera to just north of Bakersfield, he found the funding plan violated Section 2704.08 because it failed to do so for the entire IOS from Merced to Los Angeles. Additionally, Judge Kenny found the Authority had not properly certified that environmental clearances for the entire project were complete. At this time, only the Madera-to-Fresno segment has received final project-level environmental review.

Based on these findings, Judge Kenny concluded that he could issue a writ of mandate directing the Authority to rescind its approval of the funding plan. Nonetheless, the judge decided not to issue such a writ because it would have no “substantial or practical impact on the program” without a concurrent invalidation of the legislative appropriation for the HSR or subsequent approvals. Furthermore, Judge Kenny concluded that no writ should be made to invalidate legislative appropriation made through SB 1029, partly because petitioners did not seek such relief in their Second Amended Petition and Complaint, and they only raised the issue for the first time in their reply brief. Finally, the judge directed the parties to submit supplemental briefing on the issue of whether a writ should issue to invalidate subsequent approvals.

In California Building Industry Association v. Bay Area Air Quality Management District (August 13, 2013, Case No. A136212) ___ Cal.App.4th ___, the First District Court of Appeal reversed a trial court’s decision striking down the Bay Area Air Quality Management District’s (BAAQMD’s) CEQA thresholds of significance for greenhouse gas emissions. The appellate court held that CEQA does not require BAAQMD to prepare an environment impact report (EIR) before adopting “thresholds of significance” to assist in the determination of whether air emissions of proposed projects might be deemed “significant.”

On June 2, 2010, BAAQMD adopted CEQA thresholds of significance for greenhouse gas emissions. The thresholds also set standards for impacts related to toxic air contaminants (TACs) and very small particulate matter (PM2.5). The thresholds were adopted pursuant to CEQA Guidelines section 15064.7, which encourages agencies to “develop and publish thresholds of significance” for “general use as part of the lead agency’s environmental review process.” The section further mandates that the thresholds be “adopted by ordinance, resolution, rule, or regulation, and developed through a public review process and be supported by substantial evidence.”

The California Building Industry Association (CBIA) filed a petition for writ of mandate challenging BAAQMD’s adoption of the thresholds. CBIA argued the issuance of the thresholds was a “project” under CEQA, and that BAAQMD had violated CEQA by not preparing an EIR before adopting the guidelines. CBIA claimed the thresholds were too stringent and would discourage developers from building desirable urban infill projects close to public transportation by making the CEQA review process more burdensome and expensive. This, in turn, would result in more housing being built in the suburbs, causing more commuter traffic and more traffic-related emissions. This increased pollution, CBIA argued, was an adverse impact mandating preparation of an EIR.

The Alameda County Superior Court agreed, ruling that the adoption of the thresholds was a project under CEQA and entered an order awarding the CBIA substantial attorney fees under Code Civil Procedure section 1021.5.

The First District Court of Appeal reversed, reasoning that (1) the district’s adoption of thresholds was not a “project” within the meaning of CEQA and (2) there were no reasonably foreseeable impacts associated with this action.

CEQA defines a project as any activity “which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (Pub. Res. Code, § 21065.) The appellate court concluded that the adoption of thresholds was not a project. BAAQMD relied on CEQA Guidelines section 15064.7 in promulgating the thresholds. The court explained that section 15064.7 establishes the procedures for adopting thresholds in some detail, and CEQA review is not part of that procedure. Section 15064.7, subdivision (b), provides that thresholds of significance must be formally adopted through a public review process and supported by substantial evidence if, as in this case, they are to be placed in general use. The agency accepted public comments and responded to comments. Striking an uncommon tone, the court concluded that this process was substantially similar to the EIR process and that requiring more would be a duplicative effort and a waste of tax dollars.

The court noted in any event, the action was not a “project” because the activity would not cause a direct physical change in the environment or a reasonably foreseeable indirect physical change. (Pub. Res. Code, § 21065; CEQA Guidelines, § 15378, subd. (a).) CBIA argued that impacts were reasonably foreseeable because the thresholds were more stringent than earlier thresholds and would require a more thorough environmental analysis; as a result, the CEQA process would become more burdensome, making urban development less desirable and leading to more suburban development with all its attendant impacts including traffic and air quality impacts.

The court was not persuaded, instead reasoning that the analysis posited by CBIA included many assumptions and a great deal of speculation because “the extent to which land development projects might be relocated to a more suburban location would require a prescience we cannot reasonably demand of the [BAAQMD].” The court, therefore, concluded that no CEQA review was required before BAAQMD promulgated the thresholds.

In its petition for writ of mandate, CBIA raised several challenges to the substance of the thresholds that were not decided by the trial court. Though CBIA failed to cross-appeal, the appellate court agreed to consider the other two issues. First, CBIA argued that the standards were inappropriate in any event because they evaluated the effects of the environment on sensitive receptors as part of the project; this is contrary, it argued to the purpose of CEQA, which is to protect the environment from proposed projects, not protect the proposed projects from the existing environment. The court cited a long line of cases for this proposition, including the recent Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455. The court did not address whether Ballona, et al., were correctly decided, or whether, as a general rule, an EIR may be required solely because the existing environment may adversely affect future occupants of a project. Instead, finding CBIA’s claim that the receptor thresholds were unauthorized by CEQA analogous to a claim a statute or regulation is unconstitutional on its face, the court held that the regulations were not facially invalid because they were relevant for purposes other than determining the effects of the environment on the project. The court also suggested that continuing vitality of Ballona, et al., was better reserved for a case in which the receptor thresholds were actually applied to a project.

As to the second CBIA challenge not ruled on by the trial court, the First District concluded that BAAQMD’s TAC Single-Source and Cumulative Thresholds were supported by substantial evidence and upheld them.

In reversing the trial court’s judgment in CBIA’s favor and declining to grant the relief CBIA sought on the issues not resolved by the trial court, the court of appeal also reversed the substantial attorney’s fees award, concluding the industry association was no longer the successful party under Code of Civil Procedure Section 1021.5.

In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) __Cal.4th__ (Case No. S202828) (slip op., August 5, 2013), a majority of the California Supreme Court held that a lead agency only has the discretion to completely omit analysis of the project impacts on existing conditions if it can justify its decision to exclusively use a future conditions baseline by showing an existing conditions analysis would be misleading or without informational value. On this basis, the majority found a light-rail project’s EIR deficient for exclusively using year-2030 conditions as the baseline and for failing to provide an existing conditions analysis. Although the lead opinion by Justice Werdeger and the concurrence by Justice Baxter provided different rationales for upholding the EIR, the six justices joining in these two opinions did agree to affirm the appellate court’s judgment that upheld the EIR and denied the petition for writ of mandate.

Facts and Procedural Background

In 2007, the Exposition Metro Line Construction Authority (Expo Authority) issued a notice of preparation for an EIR for the Exposition Corridor Transit Project (Expo Phase 2), which would construct a light-rail transit line running from a station in Culver City to a terminus in Santa Monica. The Expo Phase 2 project was designed to provide high-capacity transit service between the Westside area of Los Angeles and Santa Monica, creating an alternative to the area’s congested roadways. The Expo Authority certified a final EIR and approved the Expo Phase 2 project in 2010.

Subsequently, Neighbors for Smart Rail filed a petition for writ of mandate alleging that the approval of Expo Phase 2 violated CEQA. The superior court denied the petition, and the Court of Appeal affirmed. The Neighbors filed a petition for review with the California Supreme Court, raising two issues: (1) the propriety of the EIR’s exclusive use of a future conditions baseline for assessment of likely impacts on traffic congestion and air quality, and (2) the adequacy of mitigation measures for potentially significant spillover parking effects in areas near planned transit stations.

California Supreme Court’s Decision

The Court issued one lead opinion and two concurring and dissenting opinions. Justice Werdeger, joined by Justices Kennard and Corrigan, wrote the Court’s lead opinion. Justice Baxter, joined by Chief Justice Cantil-Sakauye and Justice Chin, wrote a concurrence and dissent that differed from the lead opinion on the baseline issue. Justice Liu wrote a separate concurrence and dissent that differed from the lead opinion on the question of whether the EIR’s failure to use existing conditions as the baseline was prejudicial. All justices agreed that the Neighbors’ contentions regarding mitigation for spillover parking effects should be rejected. Otherwise, the Court split along different lines on both the baseline and prejudice analyses. Nonetheless, there was a majority of four justices on every issue except the prejudice question, and six justices agreed the EIR should be upheld.

Justice Werdeger’s lead opinion tackled the baseline issue first. In an overview of leading CEQA cases that discuss the use of a future conditions baseline, the lead opinion paid special attention to Communities for a Better Environment v. South Coast Air Quality Management District (2010) 48 Cal.4th 310, and Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351. Expressing the majority’s view, the lead opinion concluded that unusual aspects of a project or surrounding conditions can justify a departure from the “default” use of an existing conditions baseline that CEQA Guidelines section 15125, subdivision (a), prescribes. In other words, the Court held that while lead agencies have the discretion to “omit an analysis of the project’s significant impacts on existing environmental conditions and substitute a baseline consisting of environmental conditions projected to exist in the future, the agency must justify its decision by showing an existing conditions analysis would be misleading or without informational value.” The Court explicitly disapproved Sunnyvale West Neighborhood Association, supra, 190 Cal.App.4th 1351, and Madera Oversight Coalition v. County of Madera (2011) 199 Cal.App.4th 48, insofar as they hold the exclusive use of a future conditions baseline may never be employed.

Having established the appropriate standard for analyzing the baseline issue, the Court proceeded to conduct a factual assessment of the Expo Authority’s use of projected conditions in the year 2030 as a baseline. After a brief review of the EIR’s discussion of traffic congestion, air pollution, and baseline choice, the Court found that the administrative record did not contain substantial evidence to support the Expo Authority’s decision to omit an analysis of project impacts on existing conditions. This conclusion was joined by Justice Liu and represents the majority view.

Nonetheless, the three justices in the lead opinion proceeded to find that the EIR’s failure to use an existing conditions baseline did not have a prejudicial effect and did not deprive decision makers or the public of substantial information relevant to the project’s potential impacts. In part II.B.5, the lead opinion provides its prejudice analysis and explains how the EIR’s extensive analysis of year 2030 project impacts demonstrated “the lack of grounds to suppose the same analysis performed against existing . . . conditions would have produced any substantially different information.” But Justice Werdeger’s opinion is carefully worded to limit the lead opinion’s conclusion– that the EIR’s failure to analyze the project’s effects on existing traffic and air quality conditions had no prejudicial effect– to “these particular factual circumstances.” As footnote 2 explains, the prejudice analysis in part II.B.5 does not represent the view of the majority. In fact, Justice Liu based his dissent on the prejudice issue, and Justice Baxter’s concurrence brings up Justice Werdegar’s prejudice analysis only to support the assertion that the EIR’s assessment of Expo Phase 2’s impacts did adequately inform decision makers and the public.

The lead opinion closes with a short discussion of the adequacy of mitigation measures for spillover parking effects. The Expo Authority and Metropolitan Transportation Authority (Metro) had adopted a series of measures proposed by the EIR, including: monitoring of on-street parking, Metro’s financial and administrative assistance with appropriate permit parking programs, and Metro’s commitment to work with local jurisdictions to decide on other options (time-restricted, metered, or shared parking arrangements) if necessary. The Court rejected Neighbors’ reliance on Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1260-62, finding that case to be factually distinguishable. While acknowledging that the Expo Authority and Metro “cannot guarantee local governments will cooperate to implement permit parking programs or other parking restrictions,” the Court found that the record supported the conclusion that local municipalities can and should cooperate. This portion of the opinion is the only part that enjoys the support of all seven justices.

Justice Baxter’s concurring and dissenting opinion disagreed with the lead opinion’s baseline analysis. Rejecting the new standard articulated by the majority, Baxter’s opinion proposed a new rule in which “an agency retains discretion to omit an analysis of a project’s likely impacts with an existing conditions baseline, so long as the selected alternative of a projected future conditions baseline is supported by substantial evidence and results in a realistic impacts analysis that allows for informed decisionmaking and public participation.” Using this alternative rule, Baxter’s opinion concluded that the agency “did not abuse its discretion in forgoing an existing conditions baseline in favor of a 2030 baseline” because substantial evidence did support the 2030 baseline as a realistic baseline for analyzing the project’s impacts. According to Baxter’s opinion, the EIR should be upheld because it was not deficient and, therefore, there was no need to address the question of whether the alleged baseline error was prejudicial. Finally, Baxter’s opinion asserts two main criticisms of the majority’s analysis: (1) the majority’s restrictions are not supported by CEQA or CEQA Guidelines, (2) the majority’s analysis creates uncertainties regarding CEQA compliance, increasing project costs and delays.

[RMM Partner Tiffany K. Wright and Associate Amanda R. Berlin represented Real Parties in Interest Los Angeles County Metropolitan Transportation Authority]

In Masonite Corporation v. County of Mendocino (2013) __Cal.4th__ (Case No. A134896), a partially-published opinion filed July 25, 2013, the First District Court of Appeal held that an EIR must evaluate the economic feasibility of using an agricultural conservation easement (ACE) and in-lieu fees as mitigation for the Project’s conversion of farmland to nonagricultural use. This is required even when the Project will only result in the direct loss of farmland associated with the Project and will not put development pressure on surrounding farmland.

Background and Procedural History

In 2008, Granite Construction Company applied to the Mendocino County Planning Commission for a conditional use permit to develop a sand and gravel quarry on 65.3 acres approximately one mile north of Ukiah. The Department of Conservation classified 45 of the site’s 65 acres as “prime farmland.” Although most of the site was cultivated as a vineyard when the application was submitted, the site has been zoned for industrial use since 1982. Granite proposed reclaiming most of the area as open space after the mining operations had ceased, but reclaiming the land for agriculture was impossible.

The EIR identified this permanent loss of prime farmland as a significant and unavoidable project impact. The County Planning Commission certified the EIR and adopted a statement of overriding considerations. Masonite filed a petition for writ of mandate challenging the County’s compliance with CEQA. The Mendocino County Superior Court denied the petition for writ of mandate, and Masonite appealed.

Court of Appeal’s Decision

In the EIR, the County determined that no mitigation was possible to offset the loss of 45 acres of prime farmland. Masonite argued that the impact could have been mitigated by the acquisition of ACEs on offsite properties or by payment of “in-lieu” fees to fund such acquisitions.

The County believed that an ACE was not legally feasible in this case because a conservation easement only addresses the indirect and cumulative effects of farmland conversion and does not replace on-site resources. According to the County, indirect and cumulative impacts of farmland conversion occur when a Project affects neighboring agricultural uses by increasing the speculative land value and farming costs due to land use incompatibilities and nuisance issues. Through the so called “domino effect,” this would lead to development pressure on agricultural lands. The County felt that the domino effect was unlikely here because the nearest active agricultural operation was across the Russian River (a natural barrier); therefore, a conservation easement as mitigation was not appropriate in this case.

The state Department of Conservation (DOC) disagreed, submitting comments on the Draft EIR asserting that the loss of agricultural lands from this project (the 45 acres that would be mined) could have been minimized by the acquisition of ACEs on comparable land of at least equal size. According to the DOC, because the loss of farmland is felt beyond just the surrounding area, comparable replacement land could be found regionally or even statewide.

In developing the standard of review for the County’s finding of infeasibility, the court noted that this was an issue of law that the court should review de novo since the County had determined it would be legally infeasible to use ACEs as a mitigation measure. According to the court, an agency’s conclusion that mitigation was infeasible is only entitled to deference under the substantial evidence standard if infeasibility is based on economic, environmental, social, and technological factors. In this case, “[b]ecause the County decided that ACEs were not a legally feasible means to mitigate the loss of farmland at the Project site, it never investigated whether ACEs were economically feasible, and there is no evidence to review.”

The court looked to multiple sources to determine if ACEs were legally feasible for mitigating direct effects, as opposed to cumulative or indirect effects. It noted that if agricultural lands were preserved through conservation easements at a 1:1 ratio, then at least half the agricultural land in the region would be preserved. Furthermore, the court concluded that this preservation of substitute resources would comport with the CEQA Guidelines’ definition of “mitigation” in section 15370, subdivision (e), which specifically mentions substitute resources. Case law on the use of conservation easements as mitigation for biological resources, the common usage of ACEs as mitigation by local governments, and the Legislature’s policy to preserve agricultural land also influenced the court’s decision. Based on this analysis, the court held that ACEs are legally feasible mitigation measures, and the County must explore the economic feasibility of ACEs in a supplemental EIR.

Additionally, the court required the County to consider the economic feasibility of in-lieu fees as an alternative to a conservation easement. The County had rejected the idea in the EIR as legally infeasible because the County’s lack of a comprehensive farmland mitigation program legally precluded it from accepting in-lieu fees. The court found this fact immaterial because there were third parties that could accept the in-lieu fees for conservation programs.

The First District Court of Appeal considered a legal challenge brought against an ordinance enacted by the Marin County Board of Supervisors in Save the Plastic Bags Coalition v. County of Marin (2013) __Cal.App.4th __ (Case No. A133868). The ordinance prohibited certain retail establishments from providing single-use plastic bags and imposed a minimum fee for the distribution of single-use paper bags. The County determined the ordinance was categorically exempt from CEQA because it was a regulatory action designed to assure the maintenance, restoration, enhancement, or protection of natural resources and the environment. Both the trial court and Court of Appeal upheld the County’s determination.

Facts and Procedural Background

The Marin County Board of Supervisors adopted the challenged ordinance in 2011. This ordinance was intended to encourage retail customers to bring reusable bags for their shopping and applied to approximately 40 retail stores within the unincorporated county selling food or perishable items. The ordinance excluded restaurants and other establishments selling prepared foods.

The ordinance was proposed by the county’s agricultural commissioner who provided analysis to the Board of Supervisors which showed that single-use plastic and paper carryout bags have adverse environmental impacts throughout the state. According to the agricultural commissioner’s analysis, a shift to reusable bags would conserve resources, reduce the amount of greenhouse gas emissions associated with the production of single-use bags, reduce waste and marine pollution, protect water resources and water quality, and enhance the quality of life for county residents, visitors, and wildlife.

Among other things, the commissioner relied on a master environmental assessment prepared by Green Cities California in which it was reported that a ban on single-use plastic bags combined with a five-cent charge for single-use paper bags in the District of Columbia had caused as many as two-thirds of consumers to shift from single-use to reusable bags. From this information, the commissioner concluded that a ban on plastic bags combined with a minimum charge on paper bags would rebut any claim that the ordinance would simply shift consumer’s habit from one environmental impact to another (single-use plastic to single-use paper). Based on this finding, the county concluded that the ordinance was categorically exempt from CEQA “by demonstrating and achieving a result that is environmentally superior: moving people to reusable bags and reducing waste from all single-use products.” The county did not identify which categorical exemption it was relying on under CEQA.

During the hearing process on the ordinance, the Plastic Bag Coalition submitted numerous objections. The Coalition primarily argued that adoption of the proposed ordinance required preparation of an EIR because alternatives (paper bags and reusable bags) are worse for the environment than plastic bags. Despite the Coalition’s objections, the County Board of Supervisors adopted the ordinance.

Plaintiff filed a petition for writ of mandate in the Marin County Superior Court. The trial court denied the petition and determined that substantial evidence supported the County’s reliance on the categorical exemptions contained in CEQA Guidelines sections 15307 and 15308. The Coalition appealed.

The Court of Appeal’s Decision

The Court of Appeal first described the standard of review applicable to its review of this case. Where an agency concludes a project is categorically exempt from CEQA, that conclusion will be upheld if supported by substantial evidence in the administrative record. Once an agency has established that the project falls within an exemption, the burden falls to the party challenging the exemption to prove that the project is not exempt because it falls within one of the exceptions listed in CEQA Guidelines, section 15300.2. The court noted that, currently, a split of authority exists on the appropriate standard of review (substantial evidence vs. “fair argument”) to apply to a question of fact regarding any exceptions that would kick a project out of exempt status. The court declined to grapple with this split, as it determined the outcome in the case before it would be the same either way.

The Court of Appeal also drew on the California Supreme Court’s decision in Save the Plastic Bag Coalition v. City of Manhattan Beach. The Court of Appeal noted that the Manhattan Beach case involved preparation of a negative declaration for a plastic bag ban ordinance rather than an exemption, but it still found the Supreme Court’s analysis instructive. In Manhattan Beach, the Supreme Court focused on the distinction between local impacts created by a proposed project and impacts that would occur outside the public agency’s geographic boundary. The Supreme Court noted that there might be circumstances when more comprehensive environmental review will be required if it can be shown that a plastic bag ban will result in a significant increase in paper bag use, but that wasn’t the case in Marin County. Marin County’s ordinance applied to roughly 40 stores, compared to over 200 stores affected by Manhattan Beach’s ordinance. The Supreme Court had noted the description of the broader impacts of increased paper bag use in Manhattan Beach to be insubstantial, and the First District Court found the impacts in Marin County to be even more trivial. Here, there were significantly fewer retailers and a fee would be charged for paper bags, thereby increasing the incentive for consumers to bring reusable bags when shopping. No such fee was required by the Manhattan Beach ordinance.

The Court of Appeal then considered the Coalition’s primary argument that the county could not rely on the categorical exemption under CEQA Guidelines sections 15307 and 15308 [Class 7 and 8] because such exemptions are available only to “regulatory agencies implementing regulations authorized by a preexisting state law or ordinance.”  As an initial matter, the Court found that, though the Coalition had not raised the claim during the administrative process, the claim was not barred by a failure to exhaust. Citing another California Supreme Court Case, Tomlinson v. County of Alameda, the court noted that exhaustion is required so long as the public agency gives notice of the grounds for its exemption determination and holds a public hearing where members of the public have the opportunity to weigh in. In this case, county counsel did not identify the basis for the claimed exemptions until a continued hearing on the project.

On the merits, the Coalition argued (without citation to authority, as noted by the court) that legislative actions, such as the enactment of an ordinance, are never exempt from CEQA under Class 7 and 8 because these exemptions apply only to regulatory agencies. But the court acknowledged that the county’s adoption of the ordinance was an exercise of regulatory power provided to it by the California Constitution. The court stated that the “ordinance constitutes a regulation enacted for the purpose of protecting natural resources and the environment.” Having found the county could properly rely on the Class 7 and Class 8 exemptions, the court concluded the Coalition failed to address the substantial evidence relied upon by the County to support its determination that the exemption applied. The Coalition therefore failed to meet its burden to demonstrate that the exemption was not supported by substantial evidence or that an exception would apply to invalidate the exemption. The Court of Appeal affirmed the trial court’s judgment upholding the County’s adoption of the ordinance banning single-use plastic bags.