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The Third District Court of Appeal held that the City did not prematurely commit to the arena project by entering into a nonbinding term sheet with the Sacramento Kings or by engaging in land acquisition through eminent domain before the EIR process was complete. The court further determined that the EIR included an appropriate range of alternatives and adequately analyzed traffic and safety impacts. Saltonstall v. City of Sacramento (Feb. 18, 2015) ___ Cal.App.4th ___, Case No. C077772.

The case involves a challenge to the certification of an EIR and approval of a new entertainment and sports arena in downtown Sacramento that will eventually house the Sacramento Kings. To facilitate the timely opening of the new downtown arena, the Legislature modified several deadlines under CEQA by adding section 21168.6.6 to the Public Resources Code.

The City certified the EIR and approved the project in May 2014. Opponents of the project immediately filed a lawsuit against the City and sought a preliminary injunction to stay construction. The trial court denied the preliminary injunction, and the Court of Appeal affirmed that decision. The appellate court ruled that petitioners failed to satisfy the requirements for a preliminary injunction and held that section 21168.6.6 was not unconstitutional. (Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837.) The trial court subsequently rejected the lawsuit in its entirety. Petitioners appealed.

In the appeal, petitioners argued (1) the City violated CEQA by committing itself to the downtown arena project before completing the EIR process, (2) the City’s EIR failed to consider remodeling the current Sleep Train Arena as a feasible alternative to building a new downtown arena, (3) the EIR did not properly study the effects of the project on interstate traffic traveling on the nearby section of Interstate Highway 5, and (4) the City did not account for large outdoor crowds expected to congregate outside the downtown arena during events. Petitioners also argued that the trial court erred in denying their motion to augment the record and in denying their Public Records Act request to the City to produce e-mail communications with the NBA. The Court of Appeal rejected all of petitioners’ claims.

The Third District first dismissed the claim that the City prematurely committed itself to approving the project. Petitioners claimed the City violated CEQA by engaging in land acquisition for its preferred site and entering into a preliminary term sheet with Sacramento Basketball Holdings LLC before finishing the EIR. Rejecting this argument, the Court held that the City was allowed to engage in land acquisition for its preferred site before finishing its EIR under CEQA Guidelines section 15004 and Public Resources Code section 21168.6.6. Guidelines section 15004, subdivision (b)(2)(a), expressly provides that “agencies may designate a preferred site for CEQA review and may enter into land acquisition agreements when the agency has conditioned the agency’s future use of the site on CEQA compliance.” Moreover, Public Resources Code section 21168.6.6 expressly allowed the City to exercise its eminent domain power to acquire the 600 block of K Street as the site of the arena before finishing the EIR. Finally, the court held that the preliminary term sheet did not improperly commit the City to approving the arena as proposed. The preliminary nonbinding term sheet constituted an agreement to negotiate regarding the project and did not foreclose environmental review, mitigation, or even rejection of the project.

Turning to petitioners’ claim that the alternatives analysis was inadequate, the court held that the City was not required to study remodeling the current Sleep Train Arena as a project alternative in the EIR. The City studied a “no project” alternative involving continued use of the Sleep Train Arena and an alternative that involved building a new arena next to the current arena in Natomas. Both the no project and new Natomas arena alternatives failed to meet most of the City’s objectives for the project to revitalize its downtown area. The remodel alternative suggested by petitioners would have suffered the same problems of location that caused the City to reject the two Natomas-based alternatives. Noting that “infeasible alternatives that do not meet project objectives need not be studied[,]” the court held the Sleep Train Arena remodel alternative did not need to be analyzed.

The court next addressed petitioners’ claim that the EIR’s traffic analysis was defective for failure to adequately analyze interstate traffic on I–5. The EIR studied and disclosed existing problems with the nearby section of I–5 at peak traffic times as well as how the downtown arena project would worsen traffic congestion. The EIR reached the conclusion that levels of service would—at times—reach the worst rating given by Caltrans for traffic flow. Even with proposed mitigation measures, the City acknowledged the adverse impact of the project on I–5 traffic would be significant and unavoidable. While petitioners acknowledged the City did study local I–5 traffic congestion, they argued the study was inadequate for not considering “mainline” I–5 traffic ranging from Canada to Mexico. Rejecting this argument, the court explained that the City was not required to separately study the effect on interstate motorists who will be impacted in the same way as other, local motorists sharing the same section of I–5. The court also noted the EIR did account for mainline traffic because it used the sampling data of mainline freeway traffic collected by Caltrans.

Petitioners also argued the City’s traffic study was deficient because the EIR understated the number of persons who would surround the downtown arena. The court again was not persuaded. The City’s review of crowd size included a national survey of similar entertainment and sports facilities as well as review of crowd sizes during the Sleep Train Arena’s history. The court held that the City did not err “in declining to speculate that the same games played a few miles away would suddenly and inexplicably draw large crowds of persons who would not watch the game but simply mill about in the winter nighttime.”

Addressing petitioners’ final CEQA claim, the court held that petitioners’ contention regarding failure to study post-event crowd safety and potential for violence did not implicate CEQA because petitioners failed to show any potential for environmental impacts. Petitioners argued the EIR both understated the number of persons who can be expected to congregate around the downtown arena as well as their proclivities toward drunken violence. The court ruled that the argument focused on a social issue for which no environmental effect was described.

Finally, regarding petitioners’ attempt to augment the administrative record, the court held that their challenge to the trial court’s denial of their Public Records Act request seeking over 62,000 emails related to communications between the City and the NBA was not properly before the court. Denial of such a request is reviewed only by petition for writ of mandate, not direct appeal. The court also held that petitioners forfeited their argument regarding the introduction of certain additional materials because they failed to offer any meaningful analysis on the issue.

The First District Court of Appeal held that changes to the City of San Jose’s Airport Master Plan did not constitute a new project as a matter of law and did not require supplemental review under Public Resources Code section 21166. The court ordered publication of the opinion – Citizens Against Airport Pollution v. City of San Jose (June 6, 2014, Case No. H038781) – on July 2, 2014.

The center of the dispute was an addendum to the City of San Jose’s 1997 EIR prepared for its International Airport Master Plan. The city had also prepared a Supplemental EIR for the plan in 2003. The addendum, which was the city’s eighth addendum to the 1997 EIR, assessed the impacts of proposed amendments to the Airport Master Plan, including changes to the size and location of future air cargo facilities, the replacement of air cargo facilities with 44 acres of general aviation facilities, and the modification of two taxiways to provide better access for corporate jets.

Petitioner Citizens Against Airport Pollution’s (CAAP) primary argument was that the amendments to the Airport Master Plan addressed in the eighth addendum constituted a new project as a matter of law, and therefore, an EIR addendum was barred under CEQA. Alternatively, CAAP argued that an EIR addendum could not be used to analyze the environmental impacts of the plan changes, since those changes were substantial and required major revisions to the EIR with respect to noise, greenhouse gas emissions, toxic air contaminants, and biological resources.

The Court of Appeal was not persuaded by CAAP’s argument that the changes to the Airport Master Plan constituted a new project as a matter of law, and that the city was therefore required to prepare a new EIR. The court confirmed that the an agency’s determination on whether supplemental environmental review is required is review under the substantial evidence test, distinguishing previous cases that applied the “fair argument” standard to the question of whether a subsequent approval was “within the scope” of a previous approval.

The court next turned to CAAP’s alternative argument that the city was required to prepare a supplemental EIR for the plan amendments because they were “substantial changes” requiring “major revisions” in the EIR. CAAP claimed that there would be new or more severe impacts in several areas including noise, greenhouse gas emissions, air quality, and biological resources.

Notably, the court rejected CAAP’s argument that the city was required to analyze Greenhouse Gas Emissions for the project since CEQA Guidelines section 15064.5, which requires analysis of GHG impacts in EIRs, was added to the Guidelines after the 1997 and 2003 EIRs were prepared. Relying on CREED v. City of San Diego (2011) 196 Cal.App.4th 515, the court held that the potential for GHG impacts was not substantial new information triggering the need for a supplemental EIR. Rather, the potential for GHG impacts have been known since well before the first EIR for the Master Plan was adopted.

The court also held that there was substantial evidence demonstrating that there would be no new or more severe impacts to biological resources. The addendum acknowledged that the project changes would result in the loss of four acres of burrowing owl habitat and included mitigation measures to mitigate the impact. The court explained that mitigation measures can be modified in an addendum if there is a legitimate reason and the changes are supported by substantial evidence. The mitigation measures in the addendum met that standard because they completely offset the loss of the four acres by establishing new permanent habitat. Moreover, the mitigation measure was only a change in the location of habitual preserved under a burrowing owl mitigation plan that as established for the 1997 EIR and it would be managed within the parameters of the established plan.

The court also upheld the city’s determination that potential changes in noise and air quality impacts did not trigger a supplemental environmental review because jet engines of today and the future are quieter and cleaner than the engines of 1997.

The court held that the State Water Resources Control Board has broad regulatory authority to prevent the unreasonable use of water, upholding a Board regulation that prohibits certain diversions by grape growers in the Russian River watershed. The First District Court of Appeal issued a partially published opinion in Light v. State Water Resources Control Board (2014) __Cal.App.4th __ (Case No. A138440) on June 16, 2014.

In April 2008, young salmon were found to have been fatally stranded along the banks of the Russian River stream system. Scientists from the National Marine Fisheries Service concluded the deaths were caused by abrupt declines in water level that occurred when water was drained from the streams and sprayed on vineyards and orchards to prevent frost damage, a common practice in the watershed.

Following a series of hearings and the preparation of an EIR, the Board adopted Regulation 862 in September 2011. Regulation 862 is likely to require a reduction in diversion of water from the stream system for frost protection, at least under certain circumstances. It applies to “any diversion of water from the Russian River stream system … for purposes of frost protection from March 15 through May 15.” The regulation itself contains no substantive regulation of water use, instead delegating the task of formulating regulatory programs to “water demand management programs” (WDMPs), which will be created by self-organized groups of agricultural diverters who will act as the “governing bodies.” Each WDMP must be submitted annually to the Board for approval. The regulation declares that any water use inconsistent with the programs, once they have been formulated and approved by the Board, is unreasonable, and therefore prohibited.

Regulation 862 was challenged in two petitions for writ of mandate. The petitions alleged that the Board lacked regulatory authority to adopt the regulation and that the regulation would unlawfully interfere with plaintiffs’ use of water drawn from the Russian River stream system. The trial court granted a writ invalidating the regulation on several grounds. The Board appealed. The Court of Appeal reversed.

The Court of Appeal first addressed plaintiffs’ argument that Regulation 862 was invalid because the Board lacked sufficient regulatory authority to adopt the regulation. Plaintiffs argued that the Board lacked authority to adopt the regulation because, according to them, the Boards’ authority to regulate the unreasonable use of water was limited to enforcement actions. The Court of Appeal disagreed, finding that the Board may exercise its regulatory powers through the enactment of regulations, as well as through the pursuit of judicial and quasi-judicial proceedings. The court noted that the Board is charged with acting to prevent unreasonable and wasteful uses of water, regardless of the claim of right under which the water is diverted, and that the Board’s authority to enact regulations in furtherance of this purpose was addressed and upheld nearly 40 years ago in People ex rel. State Water Resources Control Bd. v. Forni (1976) 54 Cal.App.3d 743. The court concluded that, given the Board’s statutory charge to “prevent waste, unreasonable use, unreasonable method of use, or unreasonable method of diversion of water in this state” and the recognized power of the Legislature to pass legislation regulating reasonable uses of water, the Board’s grant of authority to “exercise the … regulatory functions of the state” necessarily includes the power to enact regulations governing the reasonable use of water.

The Court of Appeal next addressed Plaintiffs’ contention that the Board lacks regulatory authority to limit water use by riparian users and early (pre-1914) appropriators, whose diversion is beyond the permitting authority of the Board. Rejecting this argument, the court explained that, although the Board has no authority to require such users to obtain a permit to divert, that does not mean their use of California’s water is free from Board regulation. Preventing these users from the unreasonable use of water necessarily requires the imposition of limits on that use by the Board. The Court explained that there is “no question” the Board has the power to prevent riparian users and early appropriators from using water in an unreasonable manner.

The court also determined that the regulation did not violate the rule of priority. When the supply of water is insufficient to satisfy all persons and entities holding water rights, it is ordinarily the function of the rule of priority to determine the degree to which any particular use must be curtailed. Yet, as the court explained, even in these circumstances, the Board has the ultimate authority to allocate water in a manner inconsistent with the rule of priority, when doing so is necessary to prevent the unreasonable use of water. Because no one can have a protectable interest in the unreasonable use of water, when the rule of priority clashes with the rule against unreasonable use of water, the latter must prevail. The court was careful to point out that since this was a facial challenge, its holding extended only to whether the regulation was valid on its face. It explained that the regulation does not declare any specific diversion of water for frost protection unreasonable, much less all such use. Rather, frost protection diversion is unreasonable only when it occurs in violation of the WDMP. As among individual water rights holders, the regulation requires the WDMP’s to respect the rule of priority in assigning corrective actions. Thus, a determination of whether specific regulatory measures adopted by the WDMP’s violate the rule of priority, must await implementation of the regulation.

The court also concluded that the Board properly found the regulation to be necessary to enforce water use statutes and did not unlawfully delegate its authority by requiring local governing bodies to formulate the substantive regulations.

Lastly, in an unpublished portion of the opinion, the court upheld the Board’s certification of the EIR for the regulation.

 

 

The First District Court of Appeal ordered publication of its opinion upholding San Francisco’s determination that a city-wide utility project was exempt from CEQA under the “Class 3” categorical exemption. The case, San Francisco Beautiful v. City and County of San Francisco (April 20, 2014) ___ Cal.App. ___, was published May 30, 2014.

The challenged project was AT&T’s proposal to install 726 metal utility boxes housing telecommunications equipment on San Francisco sidewalks in order to expand its fiber-optic network. San Francisco approved the project without requiring an EIR, based on its conclusion that the project fell within the “Class 3” categorical exemption described in CEQA Guidelines section 15303. Class 3 establishes exemptions for “[1] construction and location of limited numbers of new, small facilities or structures,” and “[2] installation of small new equipment and facilities in small structures.” (CEQA Guidelines, § 15303.) Among the examples of this exemption are “[w]ater main, sewage, electrical, gas, and other utility extensions, including street improvements, of reasonable length to serve such construction.” (Guidelines, § 15303, subd. (d).)

The petitioners argued that the project was not exempt under clause 1 of the Class 3 exemption because the 726 new structures were not a “limited number,” and that it was not exempt under clause 2 because it involved the construction and location of new structures, rather than the “installation” of equipment in existing small structures. The Court of Appeal disagreed, finding that under clause 2, the terms of the exemption were not limited to the installation of equipment in existing small structures. Rather, it determined that the Class 3 exemption can apply even when new structures are installed or constructed. Based on this determination, the court held that the city’s project fit into the Class 3 exemption. Because it found the project exempt on this basis, the court found it unnecessary to address the “limited number” argument.

The petitioners also claimed that, even if the Class 3 exemption applied, the city was still required to prepare an EIR because exceptions to the exemption applied. Specifically, they argued that the project would have a significant environmental effect due to unusual circumstances and would have cumulative impacts. (See CEQA Guidelines, § 15300.2, subd. (b), (c).) Regarding the unusual circumstances exception, the court determined that the petitioners identified no unusual circumstances relating to placement of the new utility structures in an urbanized area that already housed similar structures. The court also determined that, even if there were unusual circumstances, the petitioners failed to demonstrate that the project would have a significant environmental effect.  Notably, the court rejected the petitioners’ argument that residents’ views on the project’s aesthetic effects constituted evidence of a significant impact sufficient to trigger the need for an EIR.

The court acknowledged that the appropriate standard of review for the “unusual circumstances” exception is an issue currently pending before the Supreme Court (Berkeley Hillside Preservation v. City of Berkeley (S201116, rev. granted May 23, 2012). The court was careful to explain that its decision would be the same under either standard of review (“substantial evidence” or “fair argument”) and, therefore, it was not necessary for the court to determine that issue or any other issues that are before the Supreme Court in Berkeley Hillside.

The court also rejected the applicability of the cumulative impacts exception, explaining that the city did not have to consider the cumulative impact of all similar equipment to be installed throughout the city because the CEQA Guidelines instead limit the cumulative impact exception to successive projects of the same type in the same place. For the purposes of the utility boxes, the court found the “same place” meant the individual locations where the boxes would be placed.

Lastly, the court determined that the city had not improperly relied on mitigation measures in concluding the project was categorically exempt from CEQA. Although the city was required to review the utility cabinets to evaluate their potential to impede travel, inconvenience property owners, or otherwise disturb use of the right-of-way, that review is required by a Public Works Order, which is generally applicable to excavation permits for surface-mounted facilities. According to the court, this was not considered mitigation because an agency may rely on generally applicable regulations to conclude an environmental impact will not be significant and therefore does not require mitigation.

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Marvin M. Brandt Revocable Trust v. United States, ___ U.S. ___ (2014) No. 12-1173, March 10, 2014.

In a case that piqued the interest of many throughout the West, including property owners and outdoor enthusiasts, the U.S. Supreme Court sided with a Wyoming property owner in a dispute over an abandoned railroad right of way.  The case presented the question of what happens to a railroad’s right of way granted under the General Railroad Right-of-Way Act of 1875 when the railroad abandons it: does it go to the Government or to the private party who acquired the land underlying the right of way?  Reversing the 10th Circuit Court of Appeals, the Supreme Court ruled that the railroad’s abandoned right of way reverts to the private landowner.

The Supreme Court’s opinion begins with some extensive history regarding the settlement of the West and the federal land grant policies led to the present predicament. The opinion explained that to encourage early settlement and development of the West, Congress first passed acts giving railroad companies fee title to vast stretches of land (the land acquired by the Central Pacific – later the Southern Pacific – and the Union Pacific in exchange for their construction of the Transcontinental Railroad is a good example), but that following public complaints about the amount of land being given away, it passed the General Railroad Right–of–Way Act of 1875 to provide railroad companies only “right[s] of way through the public lands of the United States.”  I.e., just the right to use the land – not fee title. One such right of way, granted to a railroad company in 1908, crosses land that the United States later conveyed to the Brandt family in a 1976 land patent. That patent specifically stated that the land was granted subject to the railroad’s rights in the 1875 Act, but it did not specify what would occur if the railroad later relinquished those rights. Years later, a successor railroad abandoned the right of way with federal approval. In 2006, the Government sought a judicial declaration of abandonment and an order quieting title in the United States to the abandoned right of way, including the stretch that crossed the land conveyed in the 1976 Brandt patent.

Petitioners contested the claim, asserting that the right of way was a mere easement that was extinguished when the railroad abandoned it, so that Brandt now enjoyed full title to his land without the burden of the easement. The Government countered that the 1875 Act granted the railroad something more than a “mere easement,” and that the United States retained a reversionary interest in that land once the railroad abandoned it.

The 10th Circuit Court of Appeals sided with the Government. Although it acknowledged a division among lower courts regarding the nature of the Government’s interest, if any, in abandoned General Railroad Right-of-Way Act of 1875 rights of way, it concluded based on 10th Circuit precedent that the United States had retained an “implied reversionary interest” in the right of way, which then vested in the United States when the right of way was relinquished. The Supreme Court reversed.

The Supreme  Court rejected the Government’s position, in large part because the Government had won when it argued the opposite before the Supreme Court more than 70 years ago, in the case of Great Northern Railway Co. v. United States (1942) 315 U.S. 262. There, the Government argued, and the Supreme Court agreed, that the 1875 Act granted nothing more than an easement to the railroad companies. Under Great Northern, therefore, the railroad had only an easement in its right of way over the land.

The Supreme  Court  then explained that, when the United States patented the parcel to the Brandt family in 1976, it conveyed fee simple title to that land, “subject to those rights for railroad purposes” that had been granted to the railroad. The United States did not reserve to itself any interest in the right of way in that patent.

After determining that the interest granted to the railroad was nothing more than an easement and that the U.S. retained no interest, the Court noted that the essential elements of easement, including what happens when they cease to be used, are well settled as a matter of property law.  Applying basic common law principles, the Court determined that when the railroad abandoned the right of way, the easement referred to in the Brandt patent terminated. Brandt’s land became unburdened of the easement, conferring on him the same full rights over the right of way as he enjoyed over the rest of the parcel.

Justice Sotomayor issued a dissenting opinion arguing that the majority improperly brushed off pre- Great Northern precedent suggesting that the United States retained a reversionary interest in railroad rights of way and, to the extent the majority regarded Great Northern as having abrogated those precedents, it placed on Great Northern more weight than that case could bear.  She also claimed that the majority erred by relying on basic common law principles without recognizing that railroad rights of way were not always governed by the ordinary common-law regime.

Justice Sotomayor also pointed out the negative practical implications of the majority’s opinion, claiming that it “undermines the legality of thousands of miles of former rights of way that the public now enjoys as means of transportation and recreation.  And lawsuits challenging the conversion of former rails to recreational trails alone may well cost American taxpayers hundreds of millions of dollars.”

Echoing Justice Sotomayor, many rails-to-trails organizations have described the decision as a serious set-back to the hiking and bicycling trails system envisioned by Congress when it enacted the National Trails System Improvements Act of 1988; however, the decision appears to apply only to privately-held land transferred by the United States subject to an existing railroad easement that is subsequently abandoned.  Many thousands of miles of trails along former railroad routes are situated on federal, state or local public lands, or on routes that were originally conveyed to the railroad companies in fee, rather than as easement. The decision does nothing more than confirm what has for centuries been the law of easements: an easement is a right to use another’s land for a specified purpose, and when the holder of the easement expressly or impliedly abandons its use, the easement no longer encumbers the underlying land.

HonoluluTraffic.com v. Federal Transit Administration (9th Cir. 2014) __F.3d __ (Case No. 13-15277)

The litigation involved a challenge to a 20-mile, high-speed rail project that would traverse from the western portion of Oahu through the downtown area of Honolulu, Hawaii. After considering various long-range alternatives for federally funded transportation projects, the city of Honolulu ultimately focused on a “Fixed Guideway” public transport system for the project. The project was designed to improve transportation and relieve traffic congestion in Honolulu – a persistent problem and controversial topic in Hawaii and on the island of Oahu in particular.  According to the Ninth Circuit’s opinion, Honolulu is the second-most congested metropolitan area in the nation.

Plaintiffs were a consortium of interest groups and individuals opposing the project. They filed the action in 2011 against FTA, the U.S. Department of Transportation, the city and county of Honolulu, and various federal and local administrators. Plaintiffs raised challenges under the NEPA and other federal laws.  The district court granted summary judgment to the defendants on the NEPA claims and the Ninth Circuit affirmed.

Plaintiffs’ challenges under NEPA were directed principally at the choice of the steel-wheel-on-steel-rail Fixed Guideway system for the project.  Plaintiffs claimed that the defendants unreasonably restricted the project’s purpose and need and did not consider all reasonable alternatives as required under NEPA and its regulations.

The court first addressed Plaintiffs’ argument that the project objectives stated in the EIS were too narrow. Plaintiffs argued that the objectives were so narrowly defined that only one alternative would accomplish them, and therefore, there was no real consideration of alternatives.  The Ninth Circuit disagreed.  The court noted that the project objectives, as stated as the purpose and need statement in the EIS, were defined in accordance with the statutorily mandated transportation plan that preceded the EIS – the 2004 Oahu Metropolitan Planning Organization, Regional Transportation Plan (“2004 ORTP”).  The 2004 ORTP had concluded that a high-capacity, high-speed transit project connecting west Oahu with downtown Honolulu was necessary to implement Oahu’s land use policies. It also identified the Fixed Guideway system as a central component of that plan.  The court held that, viewed in its statutory context, the project’s objectives were not so narrowly defined that only one alternative would accomplish them.  The statement of purpose and need was broad enough to allow the agency to assess various routing options and technologies for a high-capacity, high-speed transit project.  The Ninth Circuit, therefore, agreed with the district court’s conclusion that “because the statement of purpose and need did not foreclose all alternatives, and because it was shared by federal legislative purposes, it was reasonable.”

The court next addressed Plaintiffs’ claim that the EIS did not properly consider all reasonable alternatives and should have considered alternatives that the state had earlier rejected.  Early in the process, the city had prepared an Alternatives Assessment (AA) to narrow the various alternatives that would be included in the EIS.  The Ninth Circuit noted that an AA may be used as part of the NEPA process as long as it meets certain requirements. Because those requirements were satisfied, the court found no problem with the AA.  The court also noted that alternatives that were previously rejected by an agency in prior studies do not need to be discussed in an EIS.  According to the court, Plaintiffs’ real quarrel was not with the use of an AA generally, but rather that the process failed to consider Plaintiffs’ proposed three-lane Managed Lanes Alternative (a new roadway for busses and other high-occupancy vehicles).  A similar alternative, however, had been considered and rejected in the AA for cost reasons.  The court determined that the cost analysis in the AA was reasonable and that the three-lane Managed Lanes Alternative would be even more costly than the alternative rejected in the AA.  Therefore, the court held that three-lane Managed Lanes Alternative did not need to be included in the EIS.

Plaintiffs’ final argument was that the defendants had improperly excluded a light-rail alternative from the EIS.  The court determined, however, that the defendants properly relied on the AA to reject alternatives including light-rail.  Ultimately, the court held that the EIS’s identification of project objectives and analysis of alternatives satisfied NEPA’s requirements.

The California Supreme Court ordered the Third District Court of Appeal to undertake an expedited review of two trial court rulings concerning the financing plan for California’s High-Speed Rail project, by transferring the state’s petition for writ of mandate to the lower court. The petition was filed by the state in late January asking the Supreme Court to step in and prevent the two recent lower court rulings from derailing construction of the High-Speed Rail project.  According to the state, the challenged trial court rulings “cast a cloud of uncertainty” over the project and put at risk billions of dollars in federal grants. The state sent a direct request to the California Supreme Court because the normal appeals process, it claimed, would take too long given the time-sensitive nature of the project and its funding.

Although it declined to consider the petition directly, the Supreme Court recognized that the petition should be a priority and decided expeditiously by the Court of Appeal. The transfer order directed the appellate court to “expedite its consideration of this matter” and set an expedited briefing schedule for the parties.

Further information on the previous trial court rulings and the state’s petition to the California Supreme Court can be found in our previous blog post here.

Air Resources Board Releases Proposed AB 32 Scoping Plan

February 13th, 2014 by Chris Stiles

On February 10, 2014, the California Air Resources Board released the proposed first update to the AB 32 Scoping Plan. The Scoping Plan is a key component of AB 32. It describes the strategies California will implement to reduce greenhouse gases to achieve the goal of reducing emissions to 1990 levels by 2020. The Scoping Plan was first considered by ARB in 2008 and, pursuant to AB 32, must be updated every five years.

The initial AB 32 Scoping Plan contains the main strategies used by California to reduce the greenhouse gases that cause climate change. The initial Scoping Plan has a range of GHG reduction actions which include direct regulations, alternative compliance mechanisms, monetary and non-monetary incentives, voluntary actions, market-based mechanisms such as a cap-and-trade system, and an AB 32 program implementation fee regulation to fund the program.

The proposed update highlights California’s progress toward meeting the near-term 2020 GHG emission reduction goals and builds on the initial Scoping Plan with new strategies and recommendations. It defines ARB’s climate change priorities for the next five years and sets the groundwork to reach California’s long-term climate goals, including an 80 percent reduction in GHG emissions by 2050. The new actions and strategies are intended to move the state farther along the path to a low-carbon, sustainable future.

The proposed update identifies eight key sectors for ongoing action: (1) energy; (2) transportation, fuels, land use and infrastructure; (3) agriculture; (4) water; (5) waste management; (6) natural lands (7) short-lived climate pollutants (such as methane and black carbon); and (8) green buildings. It explains that each of these sectors must play a role in supporting the statewide effort to continue reducing emissions. As steps are taken to develop a statewide target, sector targets will also be developed that reflect the opportunities for reductions that can be achieved through existing and new actions, policies, regulations and investments.

According to ARB’s press release, the proposed update incorporates the latest scientific consensus which indicates the need for accelerated emissions reductions in the coming decades to achieve climate stabilization.

The proposed update includes input from a range of key state agencies. It is also the result of extensive public and stakeholder processes designed to ensure that California’s greenhouse gas and pollution reduction efforts continue to improve public health and drive development of a more sustainable economy.

ARB is soliciting additional input before it considers the final version the update.  ARB will hold a public informational presentation on the proposed update at its February 20, 2014, meeting, that will include additional opportunities for stakeholder feedback and public input. ARB plans to hold a Board hearing in late-Spring 2014 to formally consider the Final Scoping Plan Update and environmental analysis.

The proposed Scoping Plan Update is available on the ARB website at:  http://www.arb.ca.gov/cc/scopingplan/2013_update/draft_proposed_first_update.pdf

On May 21, 2013, the First District Court of Appeal issued its decision in North Coast Rivers Alliance v. Marin Municipal Water District (2013) __ Cal.App.4th __ (Case No. A133821, A135626). The case involved a challenge to an EIR prepared for a desalination plant in Marin County.  The trial court had found that the analysis in the EIR was inadequate in several areas and that new information added to the EIR required recirculation.  The Court of Appeal reversed.

Background

In August 2003, the District proposed building a desalination plant in San Rafael. The District circulated a draft EIR for the project in November 2007 and released the final EIR in December 2008.  The final EIR included a new Alternative 8, which discussed water conservation and diverting water from the Russian River as an alternative to desalination. The District certified the final EIR in February 2009 and approved the project in August 2009.  In September 2011, the trial court ruled the EIR was inadequate in various respects, and adequate in others.  The District appealed.

Aesthetic Impacts

The court began with a discussion of the EIR’s analysis of aesthetic impacts caused by three proposed water tanks—one on Tiburon Ridge (“Ridgecrest A tank”) and two on San Quentin Ridge. The EIR concluded that the intervening topography and existing vegetation would prevent the Ridgecrest A tank from having a significant effect on scenic vistas. The EIR included a detailed discussion of potential aesthetic impacts of development of the Ridgecrest A tank, including the size and shape of the tank, satellite image analysis from several directions, visual simulation and impacts on vistas from homes, hiking trails and the highway.  The court held that the analysis constituted substantial evidence to support the conclusion that the tank’s impact would be less than significant.  The court noted that distinguishing between substantial and insubstantial adverse environmental impacts was a policy decision that must be made by the lead agency based, in part, on the setting.  The Alliance’s disagreement with the EIR’s conclusions did not mean those conclusions were deficient.

The EIR further concluded that, unlike the Ridgecrest A tank, the two San Quentin Ridge water tanks would have a significant aesthetic impact and proposed a mitigation measure that required the District to work with a landscape architect and the nearby cities of San Rafael and Larkspur to create a landscaping plan to “soften” the view of the water tank. The landscaping plan “would identify success metrics such as survival and growth rates for the plantings.” The Alliance argued, and the trial court had agreed, that the mitigation measure was improperly deferred and indefinite. The Court of Appeal disagreed.  It held that the mitigation measure was acceptable in this situation because the mitigation was known to be feasible and practical considerations prevented the District from establishing more specific standards early in the process.   The measure was sufficient because it committed the District to mitigation and set out a standard for the landscaping plan to follow:  to reduce and soften the visual intrusion of the tanks.  Although the specific details of how mitigation would be achieved under the plan were deferred until the construction phase, the EIR gave adequate assurance that visual impacts would be mitigated by the selection and location of appropriate plantings.

The Alliance’s third argument regarding the water tanks was that the EIR failed to address whether Ridgecrest A tank was inconsistent with the Countywide Plan. The court found the analysis was supported by substantial evidence. Under CEQA, only inconsistencies with plans require analysis and here, the EIR analyzed the one inconsistency (with the plan’s open space designation) and mitigated it. The court held that the trial court’s ruling, which faulted the District for not mentioning each of the specific elements or policies in the Countywide Plan that could be affected, was tantamount to requiring the EIR to provide a detailed discussion of the Project’s consistency with the plan. The court noted that CEQA includes no such requirement.

Seismology

Turning next the EIR’s seismology analysis, the court held that the EIR adequately analyzed liquefaction and health and safety impacts related to earthquakes.  The EIR’s seismology analysis provided detailed information on geologic conditions in the area, and considered the potential for seismic hazards including ground shaking and liquefaction.  The EIR also considered seven potential impacts associated with seismic risks.  Moreover, the EIR required project features and components to be built to withstand seismic activity and in compliance with applicable standards in the Building Code.  The court therefore, held that the EIR’s analysis of seismic impacts was adequate.

Hydrology and Water Quality Impacts 

The next issue addressed by the court was the hydrology and water quality impacts of the project. The trial court had ruled that the EIR did not contain an adequate discussion of the frequency of shock-chlorination treatments and that it lacked substantial evidence to support the District’s conclusion that untreated chlorinated water would not be discharged into the Bay. The Court of Appeal disagreed here as well and found that the analysis was adequate.  The EIR described the shock-chlorination process, its frequency, and wastewater disposal and evaluated whether wastewater produced by the project could impact water quality.  It further explained that testing conducted for the project supported the conclusion that shock-chlorinating chemicals would not cause water quality impacts in receiving waters.  The court held that this explanation was sufficient.  Because the District had determined that the project impact was insignificant, the EIR did not need to include a more detailed analysis.

Biological Resources 

Holding that the EIR’s analysis of biological impacts was adequate, the court rejected the Alliance’s arguments regarding entrainment, the environmental baseline, and pile driving.  Regarding entrainment, the trial court had concluded that the evaluation methodology used for the EIR’s analysis of entrainment was inadequate because it did not follow the recommendations of the California Department of Fish and Game and the National Oceanic and Atmospheric Administration Fisheries to conduct monthly source water sampling. The District explained in the EIR that, instead of monthly sampling, it chose peak abundance periods to conduct the sampling to overestimate the impacts. The District also responded to NOAA Fisheries and CDFG’s requests for additional data by explaining that further sampling was impractical.  The court held that the mere difference of opinion regarding sampling methods was not enough to invalidate the EIR.

The court held the baseline was appropriate because the District used project specific studies and decades of CDFG data and did not base the description solely on two months of water sampling, as the Alliance had alleged.   The EIR considered the various species of fish that may be affected by the project.  The court found that the description of the environmental setting was more than adequate.

The EIR had also found that there would be a potential significant impact on the environment from the reconstruction of a pier, which would require driving up to 175 concrete piles into the Bay. In order to mitigate this impact, the District adopted a mitigation measure that required the District to consult with NOAA Fisheries to find appropriate measures and to monitor the area during the pile-driving activities. Moreover, the District was required to comply with the Endangered Species Act section 7 consultation requirement. The trial court found that these mitigation measures were not sufficiently specific. Once again, the appellate court disagreed.  Finding that the mitigation was adequate, the court noted that a condition requiring compliance with environmental regulations is a common and reasonable mitigating measure.

Energy and Greenhouse Gas Emissions

The trial court had ruled that the EIR’s discussion of energy impacts was inadequate because it did not discuss a particular alternative­­—the use of green energy credits to mitigate energy impacts. The appellate court held, however, that because the EIR had found that the energy impacts would be insignificant, there was no requirement to discuss mitigation measures. The court also upheld the EIR’s greenhouse gas emissions analysis, which concluded that “the Project would not interfere with achieving a 15 percent reduction in GHG emissions,” satisfying Marin’s Cities for Climate Protection campaign. Additionally, the District voluntarily committed to purchase only renewable energy for the project. The Alliance argued that this was a vague and unenforceable policy.  But the court held that no mitigation was required for GHG emissions because there was no finding of significant impact. Even so, the court went on to find that the EIR contained substantial evidence showing the feasibility of adhering to this commitment.

Recirculation 

The final argument discussed by the court was whether the EIR needed to be recirculated when Alternative 8 was added to the final EIR. The trial court had found that Alternative 8 represented a significant new feasible solution to the project objectives, and therefore, recirculation was required. The appellate court, however, found that Alternative 8 was neither feasible nor significantly “new” enough to warrant recirculation. Alternative 8 was infeasible because it would not provide reliable potable water in a drought year – one of the project objectives.  That was because the alternative relied in part on increased imports from the Russian River, and there was substantial uncertainty regarding whether such increases would ever be allowed.  The alternative was not sufficiently new because there was an alternative in the draft EIR that discussed conservation as an alternative to the project. Given these facts, the District had substantial evidence to support its decision not to recirculate the EIR. Recirculation, the court emphasized, is an exception rather than the general rule.

Whit Manley of Remy Moose Manley, LLP, Chris Butcher of the Thomas Law Group, and District General Counsel Mary Casey represented MMWD.

 

In Lockaway Storage v. County of Alameda (2013) ___ Cal.App.4th ___ (Case No. A130874), the First District Court of Appeal held that Alameda County’s application of a voter-approved growth control initiative resulted in a compensable temporary regulatory taking entitling the property owner to nearly $1 million in damages and over $725,000 in attorneys’ fees.

Background

Lockaway is a general partnership that develops, owns, and operates storage facilities.  It has owned a parcel of land in Alameda County since 2000.  In 1999 the County approved a conditional use permit for the property authorizing a storage facility at the site. The CUP required that it be implemented within three years of its issuance, or it would expire on September 22, 2002.  When Lockaway purchased the property in May 2000, it assumed the rights and obligations of the seller in the CUP.

In November 2000, Alameda County voters enacted Measure D. Among other things, Measure D prohibits the development of a storage facility in the area of Lockaway’s property, except by public vote and explicitly states that no use permit which is inconsistent with the measure can be approved or granted. Notwithstanding that proscription, other sections of Measure D limit its application.  Section 22, for example, is a grandfather clause that explains the ordinance does not affect existing parcels, development, structures, and uses that are legal at the time the ordinance became effective, provided the development had received all discretionary approvals and permits.

Lockaway continued to pursue its plan to develop the property even after Measure D became effective.  Towards the end of the planning phase, Lockaway received assurances from the County that the CUP would be formally implemented before the September 22, 2002 deadline.  On August 30, 2002, however, the County informed Lockaway that unless it obtained a new CUP, it could not proceed with the project after the 1999 CUP terminated. Lockaway, therefore, applied for a new CUP on September 3, 2002, but the County did not issue a building permit for the project prior to the September 22 deadline.

At a September 23, 2002 hearing to consider Lockaway’s application for a new CUP, the County took the position that Measure D barred to the project because Lockaway had not obtained a building permit and commenced construction prior to Measure D’s September 22, 2000 effective date. Lockaway argued that its right to complete the project was unaffected by Measure D because the 1999 CUP was grandfathered in and was implemented before it expired.  The County ultimately determined that the project was subject to Measure D and all work on the project stopped.

Lockaway sued the County for inverse condemnation and civil rights violations. The superior court issued a writ of mandate authorizing the project to proceed.  Although it initially resisted complying with the writ, the County ultimately acquiesced and issued the necessary approvals in August 2005.  During the damages phase of the trial, the superior court determined that the County was liable for a temporary regulatory taking and awarded Lockaway $989,640.96.  The court also awarded Lockaway attorney fees totaling $728,015.50. The County appealed.

Lockaway’s Project Was Unaffected by Measure D

The court held that the Lockaway project was unaffected by Measure D because it fit squarely within the grandfathering exemption. When Lockaway purchased the property in May 2000, the County had already issued all discretionary approvals for the project. Subsequent permits were not discretionary, but rather, ministerial in nature.  Moreover, the court held that the County had waived this argument by conceding it the trial level.

The County’s Actions Effectuated a Regulatory Taking

Applying the three-factor test articulated by the U.S. Supreme Court in Penn Central Transportation Corporation v. New York City, the court held that the County’s temporary suspension of the project amounted to a constitutional taking under the Fifth Amendment.  First, the court held that the County’s action unreasonably impaired the value and use of the property.  Although there were other uses that would have been consistent with Measure D, requiring Lockaway to pursue some different authorized use other than a storage facility would have deprived Lockaway of the return on investment that it reasonably expected from its intended use.  Moreover, by the time County first told Lockaway that Measure D would stop the project, Lockaway was already fully committed to developing the storage facility and would have incurred substantial loss to convert the property to another use. Thus, the court held that the County’s regulatory action unreasonably impaired both the value and use of the Lockaway Property.

Second, the court held that Lockaway had a reasonable investment-backed expectation that its project could proceed because Lockaway purchased the property only after the County expressly confirmed that it could rely on the 1999 CUP. County staff even worked with Lockaway for a few years before the County changed its position once the September 22, 2002 expiration date had passed.

The third Penn Central factor required the court to consider the character of the County’s action.  The court held that the County’s “regulatory about face” was manifestly unreasonable because it deprived Lockaway of a meaningful opportunity to attempt to protect its property rights.   According to the court, the County should have taken action to shut down the project when Measure D took effect, rather than encouraging Lockaway to continue development. The court also took issue with the County’s refusal to even consider whether the grandfathering section of Measure D exempted the project. The court further held that, under these facts, the County’s decision to abandon the approvals for the Lockaway project could not be justified as a “mere” consequence of a public program. The court, therefore, had no problem finding that a compensable temporary regulatory taking had occurred, and upheld the trial court’s damages award.

Award of Attorney Fees Was within the Scope of the Trial Court’s Discretion

Lastly, the County argued that even if the judgment was affirmed, the award of attorneys’ fees to Lockaway should be reversed because the fee award included compensation for work attributable to civil rights causes of action on which Lockaway did not prevail. The court disagreed. It held that the trial court had discretion to award fees incurred with respect to the civil rights cause of action because they were relevant to the inverse condemnation claim. It was clear that the degree of interconnection between the various causes of action was a key consideration for the trial court in awarding fees.  Although the trial court did not explicitly state that it was awarding fees for the civil rights claims based on their relevance to the inverse condemnation claim, the court had no difficulty in concluding that such a finding was implied. The court, therefore, upheld the nearly $1 million attorneys’ fee award in its entirety.

On April 25, 2013, the Fourth District Court of Appeal ordered publication of its decision in Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (2013) __ Cal.App.4th __ (Case No. D060999). The appellate court reversed the trial court’s decision to reject a California Environmental Quality Act (CEQA) cause of action brought against the school district for adopting a mitigated negative declaration (MND) for a project to upgrade a high school’s athletic facilities. In particular, the court found it was improper for the district to adopt the MND because the athletic facilities project may have significant traffic and parking effects.

Around October 2010, the San Diego Unified School District completed an initial study for a project to upgrade Hoover High School’s athletic facilities, including replacement of the bleachers and installment of new field lighting at the football stadium. The district planned to use funds from a 2008 proposition that authorized the school district to sell $2.1 billion in bonds for various construction and rehabilitation projects listed or described in the proposition measure. The district adopted the initial study and an MND for the Hoover High project on January 11, 2011, and filed a notice of determination the next day. In February 2011, the plaintiff organization (“Taxpayers”) filed suit against the district, ultimately alleging four causes of action: 1) violation of CEQA, 2) misuse of proposition funds, 3) violation of the city’s zoning and land use laws, and 4) improperly exempting the project from the city’s zoning and land use laws. After the trial court dismissed all four causes of action, Taxpayers appealed.

The Fourth District started its discussion of the CEQA claim with an overview of general principles and proceeded to apply the fair argument standard in its de novo review of the issues. First, the court found the initial study’s project description was not misleading just because it did not place a limit on the number of evening events that would be held each year.  The district had estimated in the initial study that there would be about 15 evening events plus a “few more” due to unforeseen events.  The court interpreted a “few more” to mean about three or four more evening events, for a total of 15-19 evening events per year.  Since Taxpayers did not cite any statutory or other legal authority requiring the District to identify a finite limit on the number of events that could be held annually, the court found this description was accurate and complied with CEQA. It did, however, warn that additional CEQA review would be necessary if the district chose to increase the number of events beyond the 15-19 range in the future.

Next, the court found the project’s installment of lighting would not have a significant environmental effect. The court expressly noted that testimony of individual community members regarding the aesthetic or lighting effects of the project could not constitute substantial evidence showing a significant effect because CEQA is concerned with how a project will affect the environment in general, not how it will affect particular persons.  The court also agreed with the initial study’s conclusion that the vertical illuminance caused by the four new 90- or 100-foot light standards would not significantly impact nearby residences because of the lighting’s limited hours of operation, the limited number of evening events, landscaping features, and the small number (seven or less) of affected residences.

The court then dismissed Taxpayers’ argument that the project would have a significant impact on historical resources. The court found the record did not contain substantial evidence that any historical resources existed near Hoover High, nor any evidence showing that any potential historical resources may be substantially affected by the project.

Finally, the court addressed issues regarding traffic and parking impacts. As a preliminary matter, the court noted that the lack of a reasonable estimate of expected attendance at future events could make the district’s assessment of traffic and parking impacts inadequate. The court disapproved of the district’s choice to base projected attendance at future Hoover High evening football games on the average attendance of games at five other high schools in the district. The court found that the district should have calculated and considered the actual attendance at past Hoover High afternoon football games as a baseline figure for estimations of attendance at future evening games. Because the district did not have sufficient information about the estimated attendance, the court determined it could not have properly reached a conclusion about the potential significance of the project’s impacts on parking and traffic.

The court further agreed with Taxpayers that the district could not rely on San Franciscans Upholding the Downtown Plan v. City and County of San Francisco (2002) 102 Cal.App.4th 656 (SFUDP), for the argument that a parking shortage cannot constitute a significant physical impact on the environment because it is merely a “social inconvenience.” The court found the SFUDP court’s discussion of parking was likely dicta, and disagreed with any holding that parking shortages can never constitute a physical impact on the environment. The court reasoned that vehicles are “physical objects that occupy space when driven and when parked” so they “naturally must have some impact on the physical environment.” In contrast to its discussion of aesthetic and lighting impacts, the court found that personal observations by local residents about parking could constitute substantial evidence that the project may have a significant impact on parking. Similarly, the court found that comment letters from residents about the traffic impacts were sufficient to support a fair argument the project may have a significant effect on traffic. Because the project may cause significant parking and traffic effects, the court held that the district must prepare an Environmental Impact Report.

On April 12, 2013 the First District Court of Appeal issued its decision in Golden Gate Land Holdings, LLC v. East Bay Regional Park Dist. (2013) ___Cal.App.4th___ (Case No. A135593).  The court upheld the trial court’s decision to allow, pursuant to Public Resources Code section 21168.9, severable, existing project activities to go forward while CEQA defects relating to future project activities were remedied.

The case involved the acquisition of land for a trail improvement project in the East Bay. The East Bay Regional Park District adopted a resolution of necessity to condemn eight acres along the shoreline owned by Golden Gate Land Holdings (GGLH). The district sought to acquire this land to complete a shoreline park and to construct a segment of the San Francisco Bay Trail. The district found the project was categorically exempt from CEQA. GGLH sued, arguing the district should have prepared an EIR. The trial court agreed and granted the petition, but did not direct the district to rescind its resolution of necessity. The court instead ordered the district to vacate only its CEQA exemption finding, permitting the district to leave its resolution of necessity intact and proceed with its condemnation action. The trial court ordered, however, that the district must not actually acquire the property without first complying with CEQA.

On appeal, GGLH argued the trial court’s remedy was improper. It argued that, after concluding the district had violated CEQA, the trial court was required to direct the district to vacate all project-related approvals, including its resolution of necessity. GGLH argued that the district’s CEQA violation—an improper conclusion that the project was categorically exempt— encompassed the whole of the district’s decision and there was no way to distinguish one aspect of the project from another. Thus, according to GGLH, the trial court should not have allowed any portions of the project to proceed under Public Resources Code section 21168.9. The Court of Appeal disagreed.

According to the court, the entire “project” consisted of acquiring and developing the shoreline property for public recreation.  Project activities, however, could be parsed and consisted of initiating eminent domain proceedings, acquiring the land, and constructing the improvements.  The court held that the first activity – launching the condemnation process by adopting a resolution of necessity – could properly be severed from the remainder of the project under section 21168.9.  It would not cause impacts and there was no evidence that, by continuing the eminent domain proceedings, the district would prejudice its future consideration or implementation of alternatives or mitigation measures.  In particular, allowing that action to proceed would not prejudice the district’s CEQA analysis, so long as the district did not commit to a particular trail alignment by actually acquiring the land prior to completing the CEQA process.  Similarly, construction of the park and trail improvements could not occur until after the district completed the CEQA process.  Thus, the trial court did not misinterpret section 21168.9, or abuse its discretion in exercising its equitable powers by issuing a limited writ and allowing the eminent domain proceedings to continue.

 

The Governor’s Office of Planning and Research (OPR) and the White House Council on Environmental Quality (CEQ) are soliciting input on the public review draft of “NEPA and CEQA: Integrating State and Federal Environmental Reviews.” The handbook strives to improve efficiency, transparency and coordination in the joint environmental review process, in order for federal and state agencies to continue to pursue shared goals and to meet the requirements of both statutes. This draft handbook identifies key similarities and differences between the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) and provides suggestions to assist agencies, project applicants, and members of the public in identifying early on the potential coordination challenges that may arise during the environmental review process and in enhancing effective participation in review. Developing a common understanding of the NEPA and CEQA review processes and their differences at the beginning of a joint review process will assist agencies in avoiding delay. The draft handbook also provides a framework for a memorandum of understanding (MOU) between two or more agencies entering into a joint NEPA/ CEQA review process. Finally, the handbook summarizes and compares NEPA with the California Energy Commission’s licensing process.

The draft is open for public comment until April 19, 2013 at 5:00 p.m. Eastern Time.

The draft handbook identifies specific opportunities for coordinating NEPA and CEQA review and states the following goals:

  • Encourage federal agencies to choose one lead agency to work with a CEQA co-lead agency;
  • Encourage federal and California agencies to conduct public hearings, public comment periods, and final review periods jointly where possible;
  • Recommend that federal and California agencies develop a joint public review timeline that incorporates the applicable public participation requirements under both statutes;
  • Suggest that federal and California agencies preparing a joint EIS/EIR include a section in each impact analysis that makes a CEQA significance determination; and
  • Recommend that agencies preparing a joint EIS/EIR select a range of alternatives broad enough to meet CEQA requirements and discuss them at a level of detail that would meet NEPA requirements. 

The draft handbook also includes information for agencies planning to enter into a MOU to guide a joint NEPA/CEQA process. A MOU can define the roles of each agency and establish the framework of the environmental review. The draft handbook suggests that MOUs be used to address issues such as which agency will communicate with the applicant, allocating the responsibility for reviewing and responding to public comments, and determining the applicable time frames and milestones. MOUs can also define how the agencies will resolve disagreements. 

The draft NEPA/CEQA handbook is a comprehensive project planning resource for agencies and proponents of projects in California that require federal approval. 

The Handbook is available here: http://opr.ca.gov/docs/NEPACEQAHandbookMarch2013.pdf

Comments may be submitted here: http://www.whitehouse.gov/administration/eop/ceq/initiatives/nepa/submit

On October 23, 2012, the Second District Court of Appeal issued its decision in Chung v. City of Monterey Park (2012))       Cal.App.4th     (Case No. B233859).  The court held that a city council’s approval of a ballot measure seeking voter approval of a competitive bidding process for residential trash service was not a “project” within the meaning of the CEQA.

Factual and Procedural Background

The Monterey Park City Council voted to place Measure BB on the March 8, 2011 municipal ballot without performing any type of environmental review under CEQA.  No initial study was prepared, and there was no Notice of Exemption.  Measure BB requires that the City seek competitive bids for trash service when the City’s current contract expires in 2017, and thereafter requires that the City competitively bid for trash service every five years.  Opponents of Measure BB argued that the measure was a “project” under CEQA and that environmental review was required before the measure could be placed on the ballot.  Measure BB, among other things, would require the City Council to award the residential solid waste franchise to a single franchisee, but the City Council would also have the discretion to award the commercial solid waste franchise to up to three franchisees.  Therefore, Measure BB raised concerns about air quality, noise pollution and road damage that would likely result from an increase in the size of the solid waste contractor fleet serving the City. On March 8, 2011, City voters approved Measure BB, with over 71 percent voting in favor of establishing a competitive bidding process. 

Wing Chung, a city resident, filed a petition for writ of mandate, alleging that Measure BB was a “project” subject to CEQA, and that the City violated CEQA by failing to make any decision as to whether Measure BB would have a significant impact upon the environment, failing to consider any alternatives or mitigation measures, and failing to conduct the requisite informed decision-making under CEQA. 

The trial court disagreed and determined that Measure BB was not a “project” within the meaning of CEQA and therefore the measure did not require environmental review before being placed on the ballot.  

Court of Appeal’s Decision

The Court of Appeal began its analysis by navigating through the statutory definition of a “project” and the extensive case law on the subject. Citing CEQA Guidelines section 15378, subdivision (b)(4), the court noted that the definition of a  “project” does not include the “creation of government funding mechanisms or other government fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant physical impact on the environment.” The court determined that placing the ballot measure on the ballot fit within that definition. The ballot measure merely established a competitive bidding process for future waste services contracts, and the new manner of awarding such contracts is a fiscal activity that does not involve a commitment to a specific project. As such, the measure is not a project within the meaning of CEQA.

The court placed emphasis on distinguishing the seminal case Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, where the City of West Hollywood conditionally agreed to allow a private developer to redevelop property for senior housing predicated on future compliance with CEQA. There, the fatal flaw in the City of West Hollywood’s decision was that the city had “committed itself to a definite course of action regarding the project before fully evaluating its environmental effects.” (Id. at p. 142.) The court explained that this case was different because the City has not committed itself to any particular course of action. Measure BB does not require the City to select more than one service provider and does not preclude the City from providing solid waste services by itself. 

In addition, the court noted that Measure BB requires the City Council to hold one or more public hearings before deciding whether to grant one or more solid waste franchises.  Thus, at the time Chung filed the lawsuit it was unknowable which companies would bid on the contract, what additional trucks would be required (if any), or what significant impacts the City’s choice of service provider(s) may have in 2017.  The court held that, at this juncture, environmental review of Measure BB would be meaningless because there is simply not enough specific information about the various courses of action available to the City to warrant review at this time.