EIR For SANDAG’s Regional Transportation Plan Rejected By Court Of Appeal

In a long-awaited 2-1 decision, a court of appeal overturned the environmental impact report for the San Diego Association of Governments’ 2050 Regional Transportation Plan and Sustainable Communities Strategy. Cleveland National Forest Foundation v. San Diego Association of Governments (4th Dist., Div. 1, No. D063288, Nov. 24. 2014).   The most remarkable ruling, in what is likely to be viewed as a highly controversial decision, is the majority’s finding that the EIR was deficient because it did not assess the plan’s consistency with the 2050 greenhouse gas emissions reduction goal contained in an executive order issued by the Governor in 2005.

Background of the Plan and SB 375

The decision concerns SANDAG’s Regional Transportation Plan which contains the Sustainable Communities Strategy required by SB 375. When it enacted SB 375, the Legislature recognized that cars and light duty trucks emit 30% of the state’s greenhouse gases. Accordingly, SB 375 required the Air Resources Board to establish greenhouse gas emissions reduction targets applicable to cars and light duty trucks for each of the state’s metropolitan planning regions. The initial targets set goals for the years 2020 and 2035. SB 375 requires the Air Resources Board to consider new targets every eight years. The targets set for the San Diego area required a 7 percent CO2 reduction by 2020 and a 13 percent reduction by 2035.

In addition, the Legislature recognized that to achieve these targets, changes would need to be made to land use patterns and policies. For this reason, SB 375 also required Regional Transportation Plans to include land use-related strategies for achieving the targets, called Sustainable Communities Strategies. The SANDAG Regional Transportation Plan was the first in the state to be adopted with a Sustainable Communities Strategy.

The plan, however, drew fire. While it showed greenhouse gas emissions reductions through 2020, it also showed increases in greenhouse gas emissions after that date. Project opponents argued this was inconsistent with SB 375’s goals, the policy in AB 32 requiring that emissions reductions achieved by 2020 be maintained past that date, and an executive order targeting larger scale emissions reductions by 2050.

EIR’s Analysis of Greenhouse Gas Emissions

In 2005, Governor Schwarzenegger issued an executive order establishing statewide targets for greenhouse gas emissions reductions that included reducing emissions to 1990 levels by 2020 and to 80 percent below 1990 levels by 2050.  The EIR found that SANDAG’s plan would reduce greenhouse gas emissions until 2020, but would increase them in later years.  While it discussed the 2050 emissions reduction target in the executive order, it did not treat the order’s 2050 emissions reduction target as a standard for assessing the significance of the plan’s greenhouse gas impacts.

The court’s majority agreed with the plan opponents held that the EIR’s greenhouse gas impacts analysis was inadequate for failing to analyze the plan’s consistency with the executive order. While the executive order was not a legislative enactment, and established only statewide rather than regional emissions reduction targets, the majority reasoned that the executive order led to later legislation that  “validated and ratified the executive order’s overarching goal of ongoing emissions reductions,” and therefore the executive order continues to “underpin the state’s efforts to reduce greenhouse gas emissions throughout the life of the transportation plan.”  According to the majority, the absence of an analysis comparing the plan with the executive order’s 2050 emissions reduction target amounted to “a failure to analyze the Plan’s consistency with state climate policy.”

In a footnote, the majority stated that it was not suggesting that the plan must achieve the Executive Order’s 2050 goal or any other specific numeric goal.  Rather, the court’s concern was that the EIR failed to recognize the conflict between the increase in greenhouse gas emissions under the plan and the decrease required by the Executive Order.

The majority rejected SANDAG’s argument that the EIR’s use of three different significance thresholds authorized by CEQA Guidelines section 15064.4(b) was sufficient, stating: “the use of the Guideline’s thresholds does not necessarily equate to compliance with CEQA, particularly where . . . the failure to consider the [plan’s] consistency with the state climate policy of ongoing emissions reductions reflected in the Executive Order frustrates the state climate policy and renders the EIR fundamentally misleading.”

Mitigation of Greenhouse Gas Emissions Impacts

The majority also held that the EIR did not consider a sufficient range of mitigation measures for greenhouse gas emissions, and should have discussed additional mitigation options that could “both substantially lessen the transportation plan’s significant greenhouse gas emissions impacts and feasibly be implemented.”  The EIR was deficient, according to the court, because it did not include measures that would encourage development of what the court referred to as ”smart growth areas” –  support for planning and development through transportation investments and other funding decisions,  incentives for transit-oriented developments, coordinating funding of low carbon transportation, and encouraging parking management that promote walking and transit use.

Alternatives Analysis

Although the EIR analyzed seven alternatives to the proposed plan, the majority nonetheless concluded that the EIR failed to analyze a reasonable range of alternatives. The majority found the EIR deficient because it had not discussed an alternative which could significantly reduce total vehicle miles traveled and instead emphasized congestion relief. Given the drawbacks of congestion relief as a strategy for reducing greenhouse gas emissions in the long term, the court concluded the EIR was fatally flawed because it did not include an alternative that would focus public transit projects.

Air Quality Impacts

The majority also found the plan’s air quality impacts analysis deficient. The arguments centered on the required level of detail in a program-level EIR.  The court noted that the fact that more precise information may be available during the next tier of environmental review, did not excuse SANDAG from providing in the EIR the information that is reasonably available now.  It found the EIR deficient because SANDAG had not identified sufficient evidence in the record showing it was not feasible to provide more definitive information on a number of issues:

  • Description of Existing Conditions. The EIR recognized regional growth and land use changes associated with the transportation plan had the potential to expose sensitive receptors to substantial localized pollutant concentrations, but asserted the level of exposure could not be determined until the next tier of environmental review when designs of individual projects became available. The majority nevertheless concluded that SANDAG’s failure to provide additional baseline information in the EIR’s description of existing toxic air contaminant exposure and the location of sensitive receptors violated CEQA.
  • Correlation to Adverse Health Impacts. The EIR generally identified the adverse health impacts that might result from the transportation plan’s air quality impacts.  The court held, however, that the EIR must either correlate the additional transportation plan-related emissions to anticipated adverse health impacts or demonstrate why it could not do so.
  • Inadequate Mitigation. The court also found the EIR’s mitigation of significant air quality impacts to be insufficient finding it improperly deferred analysis of appropriate mitigation measures and failed to set performance standards. SANDAG contended that no other mitigation was feasible at the program level of environmental review, but the court found that SANDAG failed to point to any evidence in the record supporting that contention.

Agricultural Resource Impacts

Finally, the court found fault with the EIR’s agricultural impacts analysis. SANDAG used data from the state’s Farmland Mapping and Monitoring Program to analyze the agricultural impacts of the project, as permitted by Appendix G of the Guidelines, augmented by SANDAG’s own geographic information system. The court found that the EIR’s analysis understated the impacts to agricultural resources because the FMMP data do not capture information for farmland under 10 acres and SANDAG’s own geographic information system may not have included agricultural lands that went into production after the mid-1990s. On this basis, the court concluded that the EIR’s analysis of impacts to agricultural resources violated CEQA.

The Dissenting Opinion

The dissent vehemently disagreed with the majority’s rulings on greenhouse gas issues.  The dissent expressed serious concern over the majority’s analysis of the executive order characterizing its ruling as an improper determination by the court of what significance standards SANDAG should have used.  This decision, according to the dissenting opinion, “strips lead agencies of the discretion vested in them by the Legislature and reposes that discretion in the courts.”    Stating the point even more bluntly, the dissent stated: “This insinuation of judicial power into the environmental planning process and usurping of legislative prerogative is breathtaking.”

.

Coastal Commission Erred In Finding Property Owner Is Stuck With Unconstitutional Dedication Condition

In an opinion on rehearing, the Second District Court of Appeal overturned a California Coastal Commission decision that a condition of a county-issued coastal development permit could not be eliminated by a second coastal development permit the county issued for the same project. Bowman v California Coastal Commission, No. B243015, Oct. 23, 2014.  Focusing on the equities of the case, and the unfairness of the condition, the court refused to find that the county was barred from deleting the condition.

Background

The owner of a 400 acre parcel that included a lengthy stretch of shoreline in San Luis Obispo County applied to the county for a coastal development permit to rehabilitate an existing home on the property. Two years later, the county, acting as the local coastal permitting authority, issued the permit to the applicant’s successor, a family trust.   The permit was conditioned on the trust dedicating an easement for public access along the shorefront part of the property, even though the house was a mile from the shore. The trust didn’t appeal the dedication requirement to the coastal commission.

Nine months later, the trust applied for a second coastal development permit to replace a collapsed barn and to make the same improvements covered by the earlier permit.  The application also asked the county to remove the condition to the earlier permit requiring dedication of a coastal access easement. The county approved the application, including removal of the access easement condition, expressly acknowledging that the condition required an unconstitutional taking of property.  .

Concerned that the county had eliminated a valid existing coastal access easement, the Sierra Club, Surfrider Foundation, and two coastal commissioners appealed the county’s approval of the second coastal development permit to the coastal commission. The commission granted the appeal, determining that the easement was permanent and the applicant was bound by it because it didn’t contest the condition after it was imposed.

Decision

The court of appeal overturned the coastal commission’s determination.  The court rejected the opponents’ argument that the trust was stuck with the easement condition because it had not filed a legal challenge to it after the first permit was issued.  The opponents relied on the general rule that when an administrative tribunal renders a quasi-judicial decision and an administrative mandamus petition is not filed to contest it, collateral estoppel bars the agency from reconsidering the same issues. The court disagreed, concluding that it would be inequitable to apply collateral estoppel given the facts of the case.

Crucially, the trust did not start any of the improvements covered by the first coastal development permit and had limited its work to repairs authorized by “over-the-counter” permits exempt from coastal development permit requirements. Because the trust had not benefited from the first coastal development permit by performing work under it, it was not bound by its conditions.

The court also found the dedication condition clearly unconstitutional.  Stating its conclusion simply but directly, the court noted the Nolan/Dolan “rough proportionality” test for imposing conditions on a permit was not met because “there is no rational nexus, no less rough proportionality, between the work on a private residence a mile from the coast and a lateral public access easement.”

Conclusion

The court’s opinion is a narrow one, yet it demonstrates that courts will look to the equities of a case when considering application of the collateral estoppel doctrine in the context of a challenge to a permit condition, particularly when the condition is plainly improper.

Court Reaffirms City’s Discretion to Identify Local Historic Resources

In Citizens for Restoration of L Street v. City of Fresno, an appellate court affirmed that the substantial evidence test, not the fair argument test, governs an agency’s determination whether buildings or districts should be treated as historical resources under CEQA.

Background

This case concerned a proposed residential infill development project in the City of Fresno that would demolish the Crichton Home, which was designated as a heritage property by the city’s preservation commission in 2007. Under the city’s code, heritage properties are not designated as historical resources in the local register, but are nonetheless worthy of preservation. The Crichton Home, however, had fallen into disrepair and most of its historic integrity had been lost.

The city’s initial study found the project would not result in any significant environmental impacts and that the Crichton Home was not a historical resource. The preservation commission then  considered and approved a mitigated negative declaration and issuance of a demolition permit.

Plaintiffs appealed the preservation commission’s approvals, asserting that the commission did not have authority under the city code to make CEQA determinations. The city council denied the appeal, finding that the commission had the requisite authority to make a determination on the mitigated negative declaration and upheld the commission’s decision to approved it. Plaintiffs filed suit, alleging that the city had failed to comply with CEQA.

The trial court found that the commission was not authorized to approve the mitigated negative declaration. The court also found, however, that the city had correctly applied the substantial evidence standard in determining the project did not threaten “historical resources” protected by CEQA. The court subsequently issued a writ of mandate directing the city council to conduct a hearing on whether to approve the mitigated negative declaration. Both sides appealed.

The substantial evidence standard, not the fair argument standard, applies to a public agency’s determination of historicity.

Plaintiffs argued that the fair argument standard applies to the threshold question whether a building or site is a historical resource under CEQA. In plaintiffs’ view, whether a project site contains a building that is a historical resource should be reviewed under the same fair argument standard applied to whether a project site contains habitat of an endangered plant or animal.

The court rejected this argument, finding that the substantial evidence standard applied to the commission’s determination of historicity. Historical resources are treated differently than endangered plants and species because they are governed by different statutes. Relying on legislative history, the court concluded that CEQA’s provisions concerning historical resources were intended to allow a lead agency to make a discretionary decision about the historic significance of certain resources. The position that only a fair argument is needed to demonstrate historic significance is inconsistent with that discretion. The court found that the preservation commission’s determinations were supported by substantial evidence and consequently upheld the determinations.

CEQA permits delegating a lead agency’s authority to a commission, but such delegation must be clear.

CEQA allows public agencies to delegate the authority to make a final CEQA determination and approve a project to a subordinate body, provided that they also provide for an appeal to the agency’s elected decision-making body if it has one. Therefore, the court concluded, the city had the authority the delegate the authority to approve the mitigated negative declaration and the project to the preservation commission.

The court, however, also decided that the city had not delegated the authority to approve the mitigated negative declaration for the project to the commission. While the preservation commission had the authority to approve demolition permits of heritage properties, the court found it did not have decision-making authority over the project, nor was there any explicit delegation of authority to approve the mitigated negative declaration. The court was not persuaded that the preservation commission’s authority to provide review and comments on permit actions gave it authority to approve or disapprove the mitigated negative declaration.

The court also rejected the city’s alternative argument that the city council’s subsequent denial of the appeal constituted a de novo review of the mitigated negative declaration and that this cured any defect in the proceedings before the preservation commission. The court found that the city council had failed to act as the decision-making body in approving the demolition permits and failed to abide by the notice procedures and make the findings required by CEQA.

AB 52 Amends CEQA by Creating a New Category of Cultural Resources and New Requirements for Consultation with Native American Tribes

On September 25, Governor Brown signed Assembly Bill No. 52, which creates a new category of environmental resources that must be considered under the California Environmental Quality Act: “tribal cultural resources.” The legislation imposes new requirements for consultation regarding projects that may affect a tribal cultural resource, includes a broad definition of what may be considered to be a tribal cultural resource, and includes a list of recommended mitigation measures.

New category of resources

AB 52 adds tribal cultural resources  to the  categories of cultural resources in CEQA, which had formerly been limited to historic, archaeological, and paleontological resources. “Tribal cultural resources” are defined as either (1) ”sites, features, places cultural landscapes, sacred places and objects with cultural value to a California Native American tribe” that are included in the state register of historical resources or a local register of historical resources,  or that are determined to be eligible for inclusion in the state register; or (2) resources determined by the lead agency, in its discretion, to be significant based on the criteria for listing in the state register.

Under AB 52, a project that may cause a substantial adverse change in the significance of a tribal cultural resource is defined as a project that may have a significant effect on the environment. Where a project may have a significant impact on a tribal cultural resource, the lead agency’s environmental document must discuss the impact and whether feasible alternatives or mitigation measures could avoid or substantially lessen the impact.

Consultation with tribes

Recognizing that tribes may have expertise with regard to their tribal history and practices, AB 52 requires lead agencies to provide notice to tribes that are traditionally and culturally affiliated with the geographic area of a proposed  project if they have requested notice of  projects proposed within that area.  If the tribe requests consultation within 30 days upon receipt of the notice, the lead agency must consult with the tribe.  Consultation may include discussing the type of environmental review necessary, the significance of tribal cultural resources, the significance of the project’s impacts on the tribal cultural resources,  and  alternatives and mitigation measures recommended by the tribe.

The parties must consult in good faith, and consultation is deemed concluded when either the parties agree to measures to mitigate or avoid a significant effect on a tribal cultural resource (if such a significant effect exists) or when a party concludes that mutual agreement cannot be reached.

Mitigating adverse changes to tribal cultural resources

Mitigation measures agreed upon during consultation must be recommended for inclusion in the environmental document.   AB 52 also identifies mitigation measures  that may be considered  to avoid significant impacts if there is no agreement on appropriate mitigation.  Recommended measures include:

  • preservation in place
  • protecting the cultural character and integrity of the resource
  • protecting the traditional use of the resource
  • protecting the confidentiality of the resource
  • permanent conservation easements with culturally appropriate management criteria.

Conclusion

AB 52 contains several important changes to CEQA. Environmental documents must now consider tribal cultural resources in their analyses, and additional consultation requirements may apply to certain projects. Project proponents should be aware of these new requirements, and tribes should be similarly aware of their consultation rights under the new legislation.

Annexation To District Is Not Authorized For Sole Purpose Of Extending Right To Vote In District Elections

“No taxation without representation”  is a powerful rallying cry, but it’s not enough to justify an application for annexation of territory to a special district, according to recent court of appeal decisionCity of Patterson v Turlock Irrigation District  (5th Dist. F067629 June 25, 2014).  The court held that there is no statutory authorization for expansion of an irrigation district’s territorial boundaries for the sole purpose of giving voting rights to consumers of the district’s electrical services.

Turlock Irrigation District  imposed a surcharge on electrical rates charged customers in a service area outside of the District’s boundaries.  Because they reside outside the District, electrical service customers in the City of Patterson were not eligible to vote in Irrigation District elections or sit on the District’s board, and thus they were not represented in the Irrigation District’s rate-setting process. Despite this lack of representation, they had to pay the surcharge on electrical rates.

The California Public Utilities Commission had authorized the Irrigation District to provide extraterritorial service in 2003 when it approved the District’s acquisition of PG & E’s electric distribution and transmission facilities in western Stanislaus County.   Over eight years later, the city sought to obtain voting rights for its disenfranchised customers by asking the Stanislaus Local Agency Formation Commission to approve annexation of the area to the District.

The Irrigation District opposed the city’s application for annexation and submitted a resolution to the LAFCO requesting termination of the proceedings, under Government Code § 56857(b), which allows proceedings for annexation of territory to a district to be terminated when justified by a financial or service-related concern.

The city responded by filing suit to challenge the validity of the Irrigation District’s resolution. The city claimed that the financial and service concerns relating to provision of water for irrigation described in the resolution were not legitimate because the city’s annexation application was limited to retail electrical service and would not expand the District’s obligations relating to irrigation water. The trial court ruled for the District, concluding that its resolution requesting termination of the proceedings complied with the statute.

The city appealed and the Court of Appeal affirmed the trial court judgment.  However, rather than basing its decision on the Irrigation District’s resolution requesting termination of the annexation proceedings, it found the city’s annexation application was  legally deficient.

The court concluded the city’s application failed to comply with the mandatory requirement in Government Code § 56653 that an application for annexation include a plan for providing services to the annexed territory that describes the services to be extended to the affected territory. The city’s application did not, however, seek to extend services to the affected territory; it sought annexation solely for the purpose of obtaining voting rights for city residents.

The court noted at the outset of its opinion: “This appeal echoes a familiar cry from the American Revolution— ‘No taxation without representation!’”  But it explained that this  “purported evil” that the city’s application sought to redress had not been identified by the Legislature as a problem that annexation of territory is intended to solve. The city’s application was therefore fatally flawed because it was not based on a statutorily authorized reason for annexation, based on the statute’s plain language.

Compliance With FAA Regulations Provides Adequate CEQA Mitigation For Aviation Safety Impacts

Reliance on compliance with FAA regulations as a mitigation measure to reduce impacts to air safety to less than significant levels is appropriate under CEQA, according to the Court of Appeal  in Citizens Opposing A Dangerous Environment v. County of Kern, 228 Cal.App.4th 360 (5th Dist. July 25, 2014).

Two wind energy companies applied to Kern County for rezoning and a conditional use permit for mobile concrete batch plants that would be used to build and operate a wind farm in the Tehachapi Wind Resource Area. After performing an initial study, the county found that the wind farm project may result in significant impacts on the environment and that preparation of an EIR was warranted.

The County’s draft EIR indicated that the  project might pose a significant safety hazard to aircraft and gliders using the nearby Kelso Valley Airport. The county consequently included a mitigation measure that required the project proponents to obtain a “Determination of No Hazard to Air Navigation” from the FAA for each wind turbine before the county would issue building permits. The board of supervisors found that the mitigation measure reduced impacts to aviation safety to less than significant levels, certified the final EIR, and approved the applications.

Citizens Opposing a Dangerous Environment petitioned for writ of mandamus, challenging the county’s certification of the final EIR and approval of the wind project. CODE claimed the mitigation measure’s incorporation of compliance with FAA regulations was “legally infeasible,” and did not adequately reduce hazards to aviation safety to less than significant levels. The court of appeal disagreed.

CODE contended the mitigation measure was legally infeasible because it would not keep the project from causing adverse impacts to aviation safety, but rather the county hid “behind the fig leaf of a non-existent federal preemption.” The court of appeal found, however, that the measure’s reference to the FAA’s hazard determination process was appropriate. Under this process, the project sponsors were required to submit Form 7460-1, “Notice of Proposed Construction or Alteration” to the FAA and obtain a no hazard determination from the FAA in response to that submission. If the FAA were to respond with a hazard determination, the mitigation measure required that the project proponents work with the FAA to remedy the hazard before the county would issue a building permit.  As the court observed, “A condition requiring compliance with regulations is a common and reasonable mitigation measure, and may be proper where it is reasonable to expect compliance.”

Kern County also did not abdicate its responsibility to mitigate the impact to aviation safety by using compliance with FAA safety regulations as the benchmark. The court found that federal law “occupies the field of aviation safety,” and exercises “sole discretion in regulating air safety.” The relevant FAA regulations were enacted to establish standards for determining when a proposed structure would constitute an unsafe obstruction to aviation safety, and the process to make such an evaluation. As the court observed, these standards often apply to wind farms because the height of wind turbines often exceeds the reporting thresholds. That the FAA could not enforce the hazard/no hazard determination, because it does not have jurisdiction over land development, does not warrant finding the regulations inapplicable. Rather, the county, as the relevant land use authority, was required to do so by the mitigation measure through the exercise of its police power. Accordingly, the court found that the mitigation measure was legally enforceable, and suitably reduced any impact to aviation safety to less than significant levels.

 

CEQA Lawsuit Fails to Slow High-Speed Rail

Several parties, including the San Francisco Peninsula communities of Atherton, Menlo Park, and Palo Alto, challenged the California High-Speed Rail Authority’s decision on where to route trains travelling between the Central Valley and the Bay Area.  The court of appeal recently upheld the Authority’s program EIR for the routing, but rejected the Authority’s argument that federal law preempted the application of CEQA.  Town of Atherton v. California High-Speed Rail Authority, C070877 (Third District, July 24, 2014).

The court upheld the program EIR the Authority relied on in deciding to approve a high-speed rail route through the Pacheco Pass and several Peninsula communities, rather than a northern route through the Altamont Pass.  The court ruled:

  • The program EIR properly deferred detailed analysis of the impacts of elevating the tracks on portions of the route through the Peninsula to a second-tier project-level EIR.  Information developed shortly before the program EIR was certified showed that an aerial viaduct was the only feasible alignment in some areas of the Peninsula.  Petitioners argued that an analysis of the impacts of elevated tracks on Peninsula communities should have been included in the program EIR’s comparison of the route alternatives.  Nevertheless, the court held it was appropriate for the Authority to review this “site specific” issue in a project-level EIR, rather than in the program EIR.
  • Petitioners’ challenge to the ridership model used in the EIR simply pointed out a “dispute between experts that does not render an EIR inadequate.”  The Authority was entitled to choose between divergent expert recommendations.
  • The Authority was not required to study additional proposed alternatives, because they either were infeasible or were substantially the same as alternatives analyzed in the program EIR.

The Authority had asked the court of appeal to dismiss the case on the ground the federal Interstate Commerce Commission Termination Act preemptsapplication of state environmental laws such as CEQA under these circumstances.  Although the federal statute does not preempt all state and local regulations, the court noted that it creates exclusive federal regulatory jurisdiction and remedies over railroad operations.  The court concluded, however, that state regulation was not preempted here, based on an exception to federal preemption which applies when a state acts as a “market participant.”

This case was not analogous, the court reasoned, to a private railroad company seeking to build a rail line free of state regulations.  Instead, the court wrote, the State itself would determine the high-speed train’s route, acquire the necessary property, and operate the train.  The Authority also had an “established practice” of complying with CEQA, and the 2008 voter-approved bond measure to fund the high-speed rail network included compliance with CEQA as a project feature.  For these reasons, the court held the Authority was required to comply with CEQA.

In sum, the California High-Speed Rail Authority was unable to convince the court that this part of the high-speed rail program was exempt from CEQA review, but it won the court’s approval for a program EIR covering a portion of the train’s route.  While the Authority continues to face several other legal challenges, this decision brings a California high-speed rail network another step closer to reality.

CEQA Compliance Not Required For Council-Adopted Land Use Initiative Measure

Developers, project opponents, agencies and courts often lose the forest for the trees when considering CEQA issues.  A prime example is the conflicting appellate authority and public debate on the question whether a city council’s adoption of a voter-sponsored initiative measure is subject to CEQA.

In Tuolumne Jobs & Small Business Alliance v. Superior Court, S207173 (Supreme Court, July 7, 2014) the California Supreme Court answered “no” to this question, in a decision that brings some welcome common sense to the CEQA world.  Rather than getting lost in the minutiae of deciding whether a council decision to adopt an initiative measure is ministerial, as the lower courts had done, the court simply ruled that the language and intent of the Elections Code preclude application of CEQA.

At issue in the case was the “Wal-Mart Initiative,” an initiative petition that proposed a specific plan for a Wal-Mart Supercenter.  The city council adopted the initiative measure instead of placing it on the ballot.  The council did not take any steps to comply with CEQA.  Opponents sued, claiming the city should have.  The trial court ruled for the city, the court of appeal ruled for the opponents, disagreeing with an earlier appellate decision that had reached the contrary result, and the California Supreme Court then took the case. Focusing on the fundamentals, the court upheld the city’s action.

The court first examined the language of the Elections Code, which requires city councils and boards of supervisors to act quickly upon receipt of a qualified voter-signed initiative petition, and allows them to adopt the measure without alteration as an alternative to putting it on the ballot.

The court noted that the delay that would be required for CEQA review meant that CEQA compliance would essentially nullify these Election Code provisions.  Further, even if time constraints permitted CEQA review, that review would be pointless, as the Elections Code does not give cities authority to reject a qualified measure or require alterations to lessen its environmental impacts.

The court also explored legislative history.  It noted that the Legislature had failed to pass a handful of bills that would have required environmental review of voter-signed initiative measures, while adopting a law that allows preparation of a report to be completed within 30 days.  The court found this evidence telling, and concluded that adoption of that law represented a legislative compromise balancing the right of initiative with the goal of informing voters and local officials about potential consequences of an initiative’s enactment:  “Thus, when faced with competing bills, the Legislature enacted the bill that gave local governments the option of obtaining abbreviated review to be completed with the short time frame required for action on initiatives.”

The court also addressed policy issues. The opponents argued that developers could use the initiative process to avoid CEQA review.  The court responded by noting that the initiative power can also be used to thwart development.  It concluded that: “these concerns are appropriately addressed to the Legislature.  The process itself is neutral. The possibility that interested parties may attempt to use initiatives to advance their own aims is part of the democratic process.”

New Proposed CEQA Guidelines on Traffic Impacts Issued: It’s How Far You Go, Not How Slow

By Stephen Kostka and Barbara Schussman

Senate Bill 743, enacted in 2013, was designed to create a process for changing the way traffic impacts are examined under CEQA. The concept was to take the focus away from vehicle delay, measured by level of service, which has resulted in mitigation requirements to increase intersection and road capacity. Instead, SB 743 seeks to shift the focus to greenhouse gas emissions resulting from trip length, encouragement of transit use, and promotion of a mix of land uses that will reduce travel demand.congestion-2

SB 743 requires that the Governor’s Office of Planning and Research amend the CEQA Guidelines to target these goals by providing an alternative to the level of service test for evaluating traffic impacts.

OPR’s discussion draft (proposed new Guideline 15064.3) issued on August 6, provides proposed changes to the CEQA Guidelines together with an explanation of the proposed changes and detailed background information.  A brief summary:

Description of Purposes.

  • the primary consideration in a CEQA analysis of transportation effects is the amount and distance that a project might cause people to drive, measured by automobile trips generated and trip distance.
  • Impacts to transit and the safety of other roadway users, such as pedestrians and bicyclists, are relevant factors in an environmental analysis.
  • Air quality and noise impacts related to traffic are still relevant in a CEQA analysis, but are typically analyzed in the air quality and noise sections of CEQA documents.
  • Automobile delay, as gauged by level of service or similar measures of capacity or traffic congestion, shall not be considered a significant impact on the environment.

Criteria for Analyzing Impacts and Determining Significance

The proposed Guideline contains detailed guidance for determining impact significance:

Vehicle Miles Traveled and Land Use Projects

Vehicle miles traveled are identified as “generally” the most appropriate measure of transportation impacts, recognizing that a lead agency may include other measures in appropriate situations. Factors agencies may consider in determining impact significance include a comparison with the regional average, as well as examples of projects that might have a less than significant impacts such as projects in areas served by transit and land use plans shown to decrease vehicle miles as compared to existing conditions.

Induced Travel and Transportation Projects

Impacts that can result from transportation projects –- the environmental impacts of increasing road capacity — should also be part of the analysis.  This part of the proposed Guideline would require lead agencies that add new road capacity in congested areas to consider the potential growth-inducing impacts of increased capacity. It would also indicate that some transportation projects, such as those that are designed to improve safety, would not necessarily be expected to increase vehicle miles traveled and result in significant impacts.

Local Safety

The criteria on local safety are intended to recognize that vehicle miles traveled may not be the only impacts associated with transportation. It provides that lead agencies should consider whether a project may cause unsafe conditions for roadway users.

Methodology

The proposed Guideline would also provide general guidance on methodology for evaluating vehicle miles traveled and traffic modeling while recognizing the role of professional judgment in using traffic models.

 Mitigation and Alternatives

The Guidelines would be amended to identify potential mitigation measures and alternatives in existing Guidelines Appendix F, to make it clear that agencies retain the ability to require projects to achieve levels of service designated in general plans or zoning codes (even though delay is not to be treated as a significant impact under CEQA), and to provide that previously adopted mitigation measures may still be enforced.

Implementation Schedule

The Guidelines would be implemented in phases. The changes would apply prospectively to new projects that had not already commenced environmental review upon their effective date. The new procedures would apply immediately upon their effective date to projects located within one-half mile of major transit stops and transit corridors provided for in SB 375. Public agencies may opt-in to the new procedures provided by the Guidelines if they update their own CEQA procedures to do so. Otherwise, the new rules would apply statewide after January 1, 2016.

OPR will be accepting comments on the discussion draft through October 10, 2014.

No Treasure for Challenger on Appeal: Treasure Island EIR Upheld

Three years after the San Francisco Board of Supervisors unanimously approved a major redevelopment project on Treasure Island and Yerba Buena Island, an appellate court affirmed a lower court judgment upholding the project’s EIR.  Citizens for a Sustainable Treasure Island v. City and County of San Francisco, A137828 (First District, July 7, 2014).

In 2011, the Board approved a comprehensive plan to redevelop a former naval station located in the middle of San Francisco Bay into a mixed-use community with updated infrastructure and amenities.  A “project EIR” analyzed all phases of the project at maximum buildout.  The EIR was challenged in court, partly on the basis that it contained insufficient detail to constitute a project EIR and, therefore, should have been prepared as a program EIR.

Treasure_Island_Pier_with_San_Francisco_City_Scape

The Court of Appeal disagreed:  All CEQA requires is that an EIR contain all requisite elements and a level of specificity sufficient for the particular proposal under consideration, both of which the court found were satisfied.  Lead agencies, the court held, have the discretion to determine whether a program or project EIR should be prepared.

The court also rejected the challenger’s assertion that the city improperly sought to short-circuit subsequent environmental review by preparing a project EIR, observing that courts apply the same substantial evidence standard to subsequent environmental review whether a project is evaluated in a program EIR or a project EIR.

Other attacks on the EIR also failed, including a claim it should have been recirculated in light of comments submitted by the U.S. Coast Guard about potential effects on regulation of ship traffic.  The court concluded there was no significant new information that required recirculation because the parties met to discuss the Coast Guard’s concerns, a project document and the EIR were revised in response to the comments, the Coast Guard expressed satisfaction with the changes, and no new significant adverse environmental impacts were shown.

The question of whether an EIR should have been prepared as a program EIR or as a project EIR also was before another court recently in Citizens Against Airport Pollution v. City of San Jose.  As discussed in our post on that decision, the court declined to reach the issue, concluding that the substance of the environmental analysis was more important than the title placed on the document.

LexBlog