Five Noteworthy CEQA Decisions in 2015

January 2016

In This Issue

Berkeley Hillside Preservation v. City of Berkeley

California Building Industry Association v. Bay Area Quality Management District

Center for Biological Diversity v. California Department of Fish and Wildlife

City of San Diego v. Board of Trustees of the California State University

City of Irvine v. County of Orange

Who is Douglas Herring & Associates?

As we've done in past years, this eAlert issue brings you brief summaries of some of the noteworthy California Environmental Quality Act (CEQA) decisions rendered by the courts in 2015. The Supreme Court issued long-anticipated final rulings in the Berkeley Hillside Preservation v. City of Berkeley and California Building Industry Association v. Bay Area Quality Management

District cases. In the former case, the Court provided

new direction on when categorical exemptions may be used, while in the latter case, the Court ruled on the much-debated so-called "CEQA-in-reverse" analysis. We also summarize a few other cases that we think guide the ongoing implementation of CEQA. Read on to learn more.

We hope your new year has gotten off to a great start! Let us know if we can lend you a hand.

Sincerely,

Doug Herring, AICP

Archives: Our previous eAlerts are now archived at: DHA eAlerts Archive

Photography by Doug Herring

Berkeley Hillside Preservation v. City of Berkeley
(2015) 241 Cal.App.4

^th 943

Berkeley Hillside Preservation v. City of Berkeley has been a contentious case that concerns the "unusual circumstances" exception when invoking a categorical exemption from CEQA. At the start of this case, the City of Berkeley relied upon Class 1 (Existing Facilities) and Class 32 (In-Fill Development Projects) categorical exemptions when it granted a land use permit for the construction of a large single-family house in Berkeley. The court of appeal overturned Berkeley's decision, determining that the "fair argument" standard applied to the determination of whether or not there were unusual circumstances preventing reliance on an exemption. In its resolution of the case, the California Supreme Court determined that the more stringent "substantial evidence" standard applies when assessing whether there are unusual circumstances, but the less rigorous "fair argument" standard determines whether these unusual circumstances may give rise to a significant environmental impact of the project. The Supreme Court remanded the case to the 1^st District Court of Appeal.

The Supreme Court's decision takes the middle ground with an approach that requires a two-step analysis. The unusual circumstances exception cannot counter a CEQA exemption by only showing that a project may have a significant environmental impact. Rather, there must also be a factual showing that these unusual circumstances are present and have resulted in potentially significant impacts. In other words, the exception is not automatically triggered whenever there may be a significant environmental impact: there must be unusual circumstances. On the flip side, however, there are multiple ways to show these unusual circumstances, and evidence of significant environmental impacts can help prove unusual circumstances. A party may show that some feature of the project, like its size or location, distinguishes it from other projects in the exempt class in question. A party may also provide evidence that the project will have a significant environmental impact.

With this decision, the Supreme Court defers to lead agencies in determining whether unusual circumstances apply to a project, but gives the edge to project opponents on the question of whether unusual circumstances, once established, may cause a significant environmental impact. Upon remand, the Court of Appeal found that substantial evidence supported the use of the categorical exemptions, and that the unusual circumstances exception did not apply. The Court therefore upheld the determination that this single-family home construction project is exempt from CEQA.

The full Supreme Court decision is available here and the Appellate Court decision here.

California Building Industry Association v. Bay Area Quality Management District

(2015) ___C4th ___ (No. S213478, Dec. 17)

This second case addresses the scope of CEQA review and a long-debated question. In California Building Industry Association v. Bay Area Quality Management District, the California Supreme Court ruled that CEQA does not require an analysis of the existing environment's impact on a potential project, except in limited circumstances. The Court found the term "environmental effects" to mean only the impacts arising from the project's effect on the environment, and not the environment's effect on the project. In essence, this ruling limits the scope of CEQA review and resolves a long-debated question. However, the decision does not entirely eliminate the need for a "CEQA-in-reverse" analysis in all scenarios.

This type of reverse analysis is still required if certain conditions are met. CEQA does require an analysis of how environmental conditions might adversely affect a project or its future users or residents when a project could exacerbate or worsen existing environmental hazards. In an example cited by the Court, a proposal to locate new development next to a former gas station underlain by contained groundwater contamination could result in greater dispersal of the contamination, as a result exacerbating the existing environmental hazard, and thereby requiring evaluation pursuant to CEQA. CEQA also requires this type of analysis when certain airport and school construction projects and housing development projects are concerned. This analysis is specifically required by statutory language, and the Court in its ruling emphasized that these situations are particular exceptions to the general rule, which does not require a CEQA-in-reverse analysis.

The full decision is available here.

Center for Biological Diversity v. California Department of Fish and Wildlife
(2015) 62 Cal.4

^th 526

The third Supreme Court case concerns Environmental Impact Reports, and the Court's ruling establishes new requirements for CEQA analyses of greenhouse gas emissions that will likely have a significant and long-term impact on environmental reviews going forward. The decision also included an important discussion of the mitigation measures for impacts on fully protected species. In particular, the Court found in this case that the mitigation measures for the effects on protected species were inadequate, and that they violated the prohibition on taking a "fully protected" species by including measures for the collection and relocation of such a species, the unarmored three-spined stickleback. The Court disagreed with the Department of Fish and Wildlife's (CDFW's) reasoning that provisions permitting the trapping and transplantation of endangered species for conservation purposes should extend to fully protected species like the stickleback as well. The Court acknowledged that CDFW may capture and relocate the stickleback as a conservation and recovery measure, but may not rely on projected capture and relocation as mitigation in a CEQA document.

The ruling on the assessment of greenhouse gas impacts and the treatment of AB 32-the Global Warming Solutions Act of 2006-and its Statewide emissions targets is also of particular interest and will likely inform future environmental reviews for proposed projects across the State. The Court approved the report's methodology,

which analyzed greenhouse gas emissions using reductions targets as specified in AB 32 as standards of significance. In particular, the report looked at emissions reductions in terms of the AB 32 goal of 29 percent below "business as usual" emissions, rather than an absolute numeric limit. The Court's decision affirms that agencies may show a lack of significant environmental impact from greenhouse gas emissions by proving a project will not interfere with reducing Statewide emissions by 29 percent from business as usual.

However, although it endorsed the report's methodology, the Court concluded that the analysis regarding greenhouse gas emissions in this particular case was not backed up by substantial evidence. Specifically, the report lacked evidence to show that the project-level reduction of 31 percent compared to business as usual would be consistent with achieving AB 32's stated goal of a 29-percent reduction. The report failed to establish a quantitative equivalence between the project-level reduction and the Statewide goal, and the Court found that it was not supported by substantial evidence. To synthesize the Court's ruling, it is permissible to analyze the significance of a project's greenhouse gas emissions in terms of projected "business as usual" emissions and within the context of AB 32's Statewide goal. However, any such analysis must be supported by substantial evidence that establishes quantitative equivalence between the two.

The full decision is available here.

City of San Diego v. Board of Trustees of the California State University

(2015) 61 Cal.4

^th

945

While the fourth CEQA-related Supreme Court case of 2015 was less contentious, it is interesting because of the Court's unanimity and the references to a similar case from 2006. In the 2015 case the Court determined that a State agency may not avoid paying for the mitigation of a project's off-site impact simply because the Legislature has not appropriated funding particularly dedicated to that purpose. State agencies must find such funding in existing appropriations and other sources, and they are not able to shift these mitigation costs to local or regional agencies if the Legislature does not appropriate funds particularly earmarked for mitigation.

California State University's (CSU's) recent plans to expand its San Diego campus would, according to the EIR, unavoidably worsen traffic congestion on local streets and a nearby freeway. The projected cost of mitigating this environmental impact was estimated at around $15 million. The CSU Board agreed with the amount, but would only fund the mitigation if the Legislature appropriated funds specifically for that purpose. The California Supreme Court unanimously disagreed with CSU's argument that traffic mitigation was infeasible if the Legislature did not appropriate funds to pay for it, and ruled that CSU's efforts to avoid paying for the mitigation itself violated CEQA.

While a largely unsurprising ruling, this case is of particular interest simply because the litigation arose at all. It also allowed the Court to revisit, reaffirm, and clarify its ruling in an earlier case involving CSU and its Monterey Bay campus, City of Marina v. Board of Trustees of the California State University. The Court did not, however, specify when a public agency may deem a proposed mitigation measure economically infeasible.

The full decision is available here.

City of Irvine v. County of Orange

(2015) 238 Ca,4^th

526

This case represents the City of Irvine's third attempt to halt Orange County's expansion of their James A. Musick Jail Facility, and the district court used this opportunity to disapprove of the process of using comments on a draft EIR to overwhelm an agency with paperwork. Orange County first prepared an EIR for the expansion of the jail facility in 1996, but the project stalled because of insufficient funding. When it was revived in 2012, the County decided to prepare a supplemental EIR rather than a subsequent EIR. Irvine challenged, asserting that Orange County had inappropriately used a supplemental EIR and had inadequately responded to comments on the draft, among other concerns.

The Fourth District Court of Appeal in this case found that the supplemental EIR rather than an entirely new EIR was appropriate because many aspects of the project had remained unchanged from 1996, and the supplemental EIR adequately addressed new issues and those aspects that had changed since the original EIR. The Court also disapproved the practice of submitting burdensome comments on a draft EIR with the intention of overburdening an agency or slowing down the EIR process or the project itself. The Court emphasized that the purpose of comments on a draft is to inform and improve the overall product, and that the CEQA Guidelines require comments that identify important new matters or raise significant questions, not objections to or arguments against the project itself.

The full decision is available here.

Who Is Douglas Herring & Associates?

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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