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In February 2009 the Marin Municipal Water District certified an EIR for a proposed desalination plant, which was struck down by the trial court as inadequate. The court found the EIR deficient in its treatment of numerous issues, including aesthetics, land use and planning, seismology, hydrology and water quality, biological resources, energy, and greenhouse gases. The Court of Appeal reversed the trial court's decision and upheld the EIR.

In its discussion, the court distinguished between the "fair argument" standard applied to challenges to Mitigated Negative Declarations and the more rigorous "substantial evidence" standard applied to challenges to EIRs. This underlines that it is generally more difficult to defend a challenge to an MND than a challenge to an EIR.

The Court's ruling was interesting in a number of areas. These were some of the highlights:

 

 

This case involved a challenge to an EIR for a 420-megawatt solar power farm in San Benito County that would require cancellation of Williamson Act contracts in effect on some of the project parcels. (Williamson Act contracts provide tax incentives to prevent conversion of agricultural land to non-agricultural uses.) Plaintiffs asserted that the County violated the Williamson Act because it failed to provide sufficient evidence to support the required finding that other public concerns substantially outweigh the objectives of the Williamson Act. The Court of Appeal rejected this argument, finding that there was substantial evidence in the record that the project would help further the State's goal of reducing greenhouse gas emissions. It also noted that some lands on and adjacent to the project site would continue to encumbered by conservation easements requiring agricultural use, and the cancellation would represent only 1.2 percent of all land under Williamson Act contracts in the County.

This ruling determined that mitigation requirements for impacts to agricultural land under a Williamson Act contract do not need to entail creation of additional agricultural land to compensate for acreage taken out of production. The Court stated that the goal of mitigation measures "is not to net out the impact of a proposed project but to reduce the impact to insignificant levels." The mitigation calling for creation of conservation easements and restoration of the project site to agricultural land at the end of the useful life of the project would satisfy the mitigation requirements defined in CEQA Guidelines Section 15370.

(In another case dealing with this issue last year, the court also ruled in Masonite Corporation v. County of Mendocino (2013) 217 Cal.App.4^th 230 that off-site conservation easements are a legitimate means of mitigating for loss of agricultural land.)

Another important ruling in this case was the finding that the EIR did not improperly defer analysis or mitigation for impacts to the blunt-nosed leopard lizard in calling for protocol-level survey for the lizard prior to construction. The Court noted that the mitigation measures identified specific actions to be taken in the event the lizards were found in the surveys. Improper deferral of mitigation would have occurred if the mitigation merely called for adopting the recommendations of the survey providers. 

Here is the full decision: Save Panoche Valley v. San Benito County.   

 

 

Neighbors for Smart Rail was another in a growing line of cases addressing baseline conditions for environmental review. Contrary to some earlier decisions, as well as CEQA Guidelines Section 15125(a), the Supreme Court ruled that "existing conditions" are not limited to conditions existing at the time environmental analysis commences. A baseline representing conditions that will occur when operation of a project commences is permissible. Furthermore, a lead agency has the discretion to define a baseline that represents conditions well after project operations have begun, but must justify such a choice by demonstrating that an existing conditions analysis would be "misleading or without informational value."

In order to be consistent with the Southern California's Council of Government's (SCAG) Regional Transportation Plan, the EIR for a light rail project in Southern California used a baseline of 2030 for traffic and air quality, for a project that was expected to be operational by 2015. Although the Court concluded that there was not sufficient evidence in the record to justify the omission of an existing conditions scenario, the Court majority found that the sole reliance on the future baseline was not a prejudicial error, and it did not deprive decision makers or the public of significant information on the proposed project's environmental effects.

Regarding earlier decisions asserting baseline must always represent conditions prior to project approval, see Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, discussed in our February 2011 eAlert, and Madera Oversight Coalition v. County of Madera (2011) 199 Cal.App.4th 48, discussed in our May 2012 eAlert. The higher court justices in the Neighbors for Smart Rail case disapproved these previous appellate court decisions "insofar as they hold an agency may never employ predicted future conditions as the sole baseline for analysis of a project's environmental impacts."

 

The retail Goliath Wal-Mart is single-handedly responsible for a substantial amount of CEQA case law, and this case adds to the pile. The proposal evaluated in the EIR was the replacement of an existing Wal-Mart store in the City of Oroville with a Wal-Mart Supercenter in a different location that would be about twice the size of the existing store.

For its evaluation of greenhouse gas (GHG) impacts, the City established the threshold of significance as whether the project would significantly hinder or delay California's attainment of the GHG reduction targets contained in Assembly Bill 32 (2006). Although the Court found this to be an appropriate threshold, it struck down the City's analysis for applying a "meaningless" comparison to total GHG emissions in the entire state, which naturally "will pale in comparison to those of the world's eighth largest economy." The justices laid out a more appropriate approach to the analysis based on whether the net emissions, factoring in the project's mitigation measures, would be consistent with AB 32's goal of reducing GHG emissions in 2020 by 30 percent in comparison with projected "business-as-usual" emission levels.

The Court rejected Wal-Mart's argument that project's GHG emissions were less than significant because the project was consistent with the California Air Resources Board's AB 32 Scoping Plan. The decision noted that while 68 percent of the project's GHG emissions would be transportation-related emissions, the Scoping Plan had no transportation measures that would apply to the project. We caution our clients against concluding a project is consistent with a GHG reduction plan without substantial evidence to support the finding. 

You can read the full decision here:  Friends of Oroville v. City of Oroville.

 

• Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301, which ruled that new Bay Area Air Quality Management District (BAAQMD) thresholds for GHGs adopted since certification of a 2002 specific plan EIR did not constitute "significant new information" triggering an SEIR for a subsequent residential project that was consistent with the specific plan.

• Taxpayers for Accountable School Bond Spending v. San Diego Unified School District (2013), which ruled that parking shortfalls can constitute a significant impact on the environment, contrary to current CEQA practice.

• Habitat and Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277, which rejected the lead agency's argument that it need not consider or even discuss an alternative that might reduce a significant project impact because it might not be the environmentally superior alternative.

 

Douglas Herring & Associates (DHA) works with public agencies, developers, and other businesses in California to expertly obtain the environmental and planning approvals needed to move projects from the conceptual stage to physical, benefit-generating reality in an efficient and cost-effective manner.  Since 1997, DHA has helped dozens of California cities and counties and scores of other businesses and organizations save money while obtaining high-quality planning and legally defensible environmental analysis services necessary to get their projects expeditiously approved and built. Learn more on our website:  Douglas Herring & Associates.

 
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