June 2012

Two important, recurring CEQA questions are answered by a recent court of appeal decision in a case involving the EIR for a California State University campus master plan: whether CEQA requires funding of mitigation for a project’s effects on public services; and whether an adaptive mitigation program for traffic and parking impacts improperly defers decisions

The court of appeal in San Francisco has upheld the Climate Change Scoping Plan adopted by the Air Resources Board in December 2008.  In its June 19th decision in Association of Irritated Residents v. California Air Resources Board, the court rejected claims by environmental groups that the Plan violated the Global Warming Solutions Act of 2006, commonly known as AB 32.

AB 32 requires California to reduce its greenhouse gas emissions to 1990 levels by 2020.  To that end, AB 32 directs the Air Board, the agency responsible for implementing the law, to establish a statewide GHG emissions limit for 2020 and adopt a “scoping plan” that identifies ways to reduce emissions from stationary and mobile sources in order to meet that limit.

The Scoping Plan.

After more than 250 public workshops and 350 community meetings, as well as input from various specialized committees, the Air Board approved a Scoping Plan outlining the following key strategies for reducing GHG emissions in California:

  • Expand and strengthen existing energy efficiency programs and building and appliance standards;
  • Achieve a statewide renewables energy mix of 33 percent;
  • Develop a California cap-and-trade program that links with similar programs in otherU.S.states and Canadian provinces as part of the Western Climate Initiative in order to create a regional market-based emissions trading system;
  • Establish targets for transportation-related GHG emissions in the state and pursue policies and incentives to achieve those targets;
  • Adopt and implement emissions-reduction measures under existing California laws and policies, such asCalifornia’s Clean Cars standards and Low Carbon Fuel Standard.
  • Create targeted fee programs, such as a public goods charge on water usage that can be used to fund water efficiency programs and improvements and fees to fund the administrative costs of implementing AB 32.


Continue Reading California Court of Appeal Upholds Statewide Climate Change Scoping Plan

A court of appeal has upheld the South Coast Air Quality Management District’s second attempt to adopt a rule imposing strict limits on paint thinners and solvents.  The court rejected a manufacturer’s claim that CEQA required the District to study alternatives and mitigation measures before adopting the new regulations.  W.M. Barr & Co. v. South

Those interested in the ins and outs of LAFCO law reacted excitedly to the news that the Attorney General was poised to issue an opinion on a perplexing question – when is an area of unincorporated land an “island” for purposes of annexation to a city under the Cortese-Knox-Hertzberg Local Government Act?

The Attorney General

In Pacific Rivers Council v. United States Forest Service, the Ninth Circuit struck down an Environmental Impact Statement prepared for a logging plan in the Sierra Nevada Mountains.  The court ruled that the EIS did not adequately evaluate the project’s impacts on fish species. 

In 2001, the Forest Service prepared a Final EIS, which

The Metropolitan Transportation Commission, the transportation planning agency for the nine-county San Francisco Bay Area, and the Association of Bay Area Governments have announced that they are going to prepare an Environmental Impact Report to evaluate the agencies’ proposed plan to reduce regional greenhouse gas emissions from cars and light duty trucks.  On June 11, the agencies issued a notice of preparation under the California Environmental Quality Act seeking comments on the scope and content of the EIR for the proposed plan, which was developed in partnership with the Bay Area Air Quality Management District and the Bay Conservation and Development Commission.  Comments on the notice of preparation are due by July 11, 2012.

The proposed plan, entitled “Plan Bay Area,” calls for housing and job growth around high-quality transit corridors, especially within areas identified by local jurisdictions as Priority Development Areas.  The plan strives to attain per-capita GHG emissions reductions from cars and trucks of 7 percent by the year 2020 and 15 percent by the 2035, as compared with 2005 emissions levels.

The plan implements Senate Bill 375, which seeks to integrate regional land use and transportation planning to help lower the number of vehicle miles traveled through the adoption of a Sustainable Communities Strategy.  SB 375 provides streamlined procedures under CEQA for qualifying residential, mixed-use and transit-oriented projects that are consistent with an approved SCS.  The proposed plan would be the Bay Area’s first Sustainable Communities Strategy and would seek to take advantage of the CEQA incentives offered by SB 375, with the hope that local approvals of future qualifying development projects that implement the plan will face fewer hurdles and delays.

Continue Reading Plan Bay Area: The Regional Plan for Reducing Greenhouse Gas Emissions – The EIR is Underway

The California Supreme Court has issued a landmark decision holding that the exhaustion doctrine – which requires parties to raise their claims at the administrative level before litigating them in court — applies to challenges to an agency decision that a project is exempt from CEQA.  Overturning a 15-year-old precedent, the court ruled that if the decision-making agency holds a hearing on the project, prospective litigants must apprise the agency of the relevant issues before they can bring them to court.  Tomlinson v. County of Alameda, Case No. S188161, 2012 WL 2145906 (Cal. June 14, 2012)

The issue exhaustion rule has been murky ever since a 1997 case, Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster, 52 Cal. App. 4th 1165, stated that the exhaustion requirement did not apply to a challenge to a decision that a project was exempt from CEQA.  More recently, there have been conflicting opinions—the court of appeal’s decision this case, which sided with Azusa, and a two-year-old decision holding that exhaustion was required (Hines v. California Coastal Com., 186 Cal. App. 4th 830 (2010)).

The Supreme Court made the issue seem easy.  The court explained that CEQA expressly states that a proposed project can be challenged only on grounds that “were presented to the public agency orally or in writing by any person during the public comment period . . . or prior to the close of the public hearing on the project before the issuance of the notice of determination.”  (Pub. Res. Code 21177(a))  The court acknowledged that when an agency determines a project is exempt from CEQA, there is no public comment period, so that aspect of this test does not apply.  But if the public agency holds a hearing on the project before deciding it is exempt from CEQA, the court ruled the statutory requirement applies.  It does not matter whether the hearing was required by law.  Nor does it matter whether the agency ultimately filed a notice of determination.
Continue Reading Speak Now or Forever Hold Your Peace — Issue Exhaustion Applies to CEQA Exemptions.

In a recent post [“When is a Wetland a Wetland — and How Do We Find Out?“] we described the significant uncertainties in ascertaining the reach of the Clean Water Act over wetlands, ponds, drainage ditches and other small aquatic features only remotely connected to navigable waterways such as rivers and lakes.  

The Ninth Circuit is at center stage again in the debate over the interpretation and enforcement of federal environmental laws.

In a sharply divided 7-4 en banc decision, the Ninth Circuit ruled that the U.S. Forest Service violated the Endangered Species Act (ESA) by allowing recreational gold mining activities in the Klamath National Forest in Northern California without consulting with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service regarding the potential impacts to protected species such as the threatened Coho salmon.   Karuk Tribe of California v. United States Forest Service.

The June 1 decision—noteworthy for its broad definition of “agency action” for purposes of the ESA’s consultation requirement—reversed an earlier decision by a three-judge panel of the Ninth Circuit.  The panel decision followed a long line of prior court decisions in holding there was no duty to consult.   The mining activities at issue were already authorized by federal law (the General Mining Law of 1872) and the applicants were required only to submit a Notice of Intent (NOI), which notifies the Forest Service of the proposed activities but does not trigger the need for any affirmative agency approval.  The panel ruled that the Forest Service’s decision not to require a more detailed Plan of Operations—which is needed where the Service determines that significant environmental disturbance is likely—amounts to a decision not to act and is therefore not agency action that triggers consultation.

But after hearing the matter en banc, the Ninth Circuit reversed its earlier decision and concluded that consultation was required.  According to the majority opinion, the Forest Service makes a discretionary, affirmative approval when it accepts an NOI, determines that no Plan of Operations is needed, and allows the proposed mining activities to proceed. 
Continue Reading To Consult or Not To Consult – That Is the Question for the Ninth Circuit