Wetland Jurisdictional Determinations: Reviewable or Not?

Last week, the Supreme Court heard oral arguments in the case of United States Army Corps of Engineers v. Hawkes Co. (Supreme Court Case No. 15-290), which poses the question of whether a determination by the Army Corps that a property contains “waters of the United States” under the Clean Water Act is a final agency action that may be challenged in court. This is an important question, since a Jurisdictional Determination can significantly affect a landowner’s right to develop and there has been a notable lack of clarity under the law over the last decade regarding what waters are covered by the Clean Water Act and what waters are not.

Supreme_Court_Front_DuskA Jurisdictional Determination is an official decision by the Corps that a property contains waters, such as wetlands, that are subject to the Clean Water Act’s permitting requirements. If a property is subject to such a determination, the landowner must obtain a permit from the Corps before developing the property and could be subject to heavy fines if he or she violates this requirement. There is a split among the circuit courts on whether an aggrieved landowner can challenge such a determination in court.

In 2014, the Fifth Circuit ruled that a Jurisdictional Determination is not a final agency action subject to judicial review, on the ground that it merely alerts the landowner that a permit will be required in the future if the landowner pursues plans to develop the subject property. Under this line of reasoning, an aggrieved landowner must wait to challenge the determination in court until there is either a final decision by the Corps on a permit application or some form of enforcement action by the federal government (such as the issuance of a compliance order or a proceeding to impose fines). See Belle Company v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014). The court reached a similar conclusion in National Association of Home Builders v. U.S. Environmental Protection Agency, 956 F. Supp. 2d 198 (D.D.C. 2013), affirmed on other grounds, 786 F.3d 34 (D.C. Cir. 2015).

But the Eighth Circuit reached the opposite result in the Hawkes case in April 2015, concluding that a Jurisdictional Determination has “a powerful coercive effect” and should be subject to “immediate judicial review.” Hawkes Co., Inc. v. United States Army Corps of Engineers, 782 F.3d 994 (8th Cir. 2015). In December 2015, the Supreme Court agreed to review the Eighth Circuit’s decision.

At the oral argument last week, the government faced a number of tough questions and serious concerns were expressed by the Justices about its position that Jurisdictional Determinations are merely a type of informal advice or information, rather than a binding determination with legal consequences that should be subject to judicial review. Based on the oral argument, it appears the Justices may be looking for a narrow way to make Jurisdictional Determinations immediately reviewable, without broadly affecting other forms of compliance advice that is routinely provided by federal agencies. Stay tuned for the final decision.

Ninth Circuit Rules Navy Satisfied NEPA in Considering Potential Terrorist Threat to San Diego Facility

The Ninth Circuit has rejected a claim, under the National Environmental Policy Act, that the Navy did not adequately consider the environmental consequences of a potential terrorist threat to the redevelopment of a military complex near downtown San Diego.  The opinion upheld the Navy’s Environmental Assessment for the complex, which concluded that the project would not create the potential for a significant impact from a terrorist attack. San Diego Navy Broadway Complex Coalition v. United States Department of Defense, No. 12-57234 (9th Cir. March 30, 2016).

060823-N-6843I-124 Sacramento, Calif. (Aug. 23, 2006) - Commander, Navy Region Southwest Rear Adm. Len R. Hering Sr. speaks to reporters during a press conference for assembly bill (AB) 1965 at the California State Capitol building. AB 1965 is a proposal to help stop predatory lending practices such as charging service members high interest rates on short-term loans. A survey by the Defense Manpower Data Center showed that 13 percent of Sailors have used predatory loans in the last 12 months, where interest rates can exceed 1,000 percent and cost military members and their families more than $80 million in yearly fees. U. S. Navy photo by Mass Communication Specialist 3rd Class S. C. Irwin (RELEASED)

Background

The Navy first approved the redevelopment of the complex in 1991.  The project included both military functions and private commercial uses to generate revenue.  However, adverse real estate conditions in San Diego delayed the project until the mid-2000s.  In 2006, the Navy prepared an EA for the project to supplement its prior NEPA analysis from the early 1990s, and it executed a lease with a private development partner.  But a citizens group filed a NEPA lawsuit, and the district court ruled that the Navy had failed to provide adequate public notice for the EA.

In response, the Navy prepared a new EA and reapproved the project in 2009.  The new EA included a discussion of a potential terrorist attack, due to the Ninth Circuit’s ruling in San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir. 2006), which had held that a categorical dismissal of the potential impacts from a terrorist attack at an installation built to store spent nuclear fuel rods was unreasonable under NEPA.  The Navy’s new EA concluded that a terrorist attack at the complex in San Diego was too speculative and remote to require NEPA analysis, since there was no known specific threat targeting the complex or its location.  The EA also explained that anti-terrorism building specifications would be followed to reduce the risks posed by a potential terrorist attack.  The EA thus concluded that the project would not place military or civilian personnel in jeopardy and would not result in a significant impact under NEPA.

The Court’s Ruling

The court upheld the discussion in the EA, although it rejected the Navy’s threshold claim that no analysis of a terrorist threat should be required under NEPA.  The Navy argued that the new complex would consist merely of “everyday facilities,” in contrast to the nuclear fuel storage facility at issue in the Mothers for Peace case.  But the court emphasized that the complex would house military command personnel and would be located in a heavily populated urban area.  The court thus concluded that the Navy was required to consider the potential for a terrorist attack, given the general risk of terrorism, the project’s location, and its military functions.

The court also faulted the Navy for its reasoning that “no known specific threat of a terrorist attack” existed.  As the court explained:  “The risks associated with terrorism are constantly in flux, and whether or not the intelligence community is aware of a specific threat to a facility at the time a NEPA analysis is conducted should have no bearing on whether to consider the impacts of an attack.”  (Court’s emphasis.)  Nevertheless, the court found it was sufficient that the EA referred to its anti-terrorism building specifications, which are designed to address a range of terrorist attack scenarios, including explosives, fire and chemical, biological and radiological weapons.

One of the judges dissented, opining that the EA did not go far enough, as it did not consider the environmental consequences “of at least a few attack scenarios at the Complex.”  The dissent reasoned that the Navy’s anti-terrorism building specifications only strengthened the defenses against a potential attack and did not “assess the likely environmental impact of such an attack.”

Implications of the Ruling

The court’s opinion emphasizes the requirement under the Mothers for Peace case that federal agencies must consider the impacts from a potential terrorist attack, at least when reviewing projects such as military installations and nuclear facilities.  But the opinion also reflects a relatively deferential view of what constitutes an adequate analysis to fulfill this requirement.  In light of recent events worldwide, this issue may continue to garner attention under NEPA from claimants, commentators and the courts.

Inadvertent Disclosure of Documents Under the Public Records Act Does Not Waive the Attorney-Client Privilege

The California Supreme Court has resolved a significant split among California appellate courts regarding whether inadvertent disclosure of documents in response to a Public Records Act request results in waiver of the attorney-client privilege pursuant to section 6254.5 of the Act. The court held that this waiver provision applies only to intentional release of a public record, and hence that a public agency’s inadvertent disclosure of a document does not waive applicable privileges.  Ardon v. City of Los Angeles, No: S223876 (March 17, 2016)

An attorney representing the plaintiff in a pending class action against the City of Los Angeles served the City with a request for documents under the Public Records Act. In response, an assistant city administrative officer provided the attorney with approximately 53 documents, among which were three memos containing attorney-client communications. After discovering this, the City notified plaintiff’s counsel that the privileged documents had been produced inadvertently, and requested their return. After plaintiff’s counsel refused, the City filed a motion to compel return of the documents, which was denied by the trial court.LosAngeles06

In a published decision, the Second District Court of Appeal affirmed the trial court’s ruling, concluding that production of the documents had waived any privilege pursuant to Section 6254.5 of the Act. The California Supreme Court granted the City’s petition for review of this decision. While review was pending, the First District Court of Appeal decided Newark Unified School District v. Superior Court, No. A142963 (1st Dist. Ct. App., August 1, 2015). As discussed in our report on that case (Court Rejects “Gotcha” Theory of Waiver Under Public Records Act), the First District held that inadvertent disclosure of documents containing attorney-client communications in response to a Public Records Act request does not result in a waiver of the privilege under section 6254.5. Continue Reading

Assessing traffic impacts under CEQA

In enacting CEQA, the Legislature established a policy to “provide the people of this state with clean air and water, enjoyment of aesthetic, natural, scenic and historical environmental qualities, and freedom from excessive noise.” The Legislature did not mention freedom from intersection congestion. Yet detailed analyses of roadway levels of service and intersection delay have emerged as one of the most contentious and costly steps in the CEQA process. The addition of a handful of vehicles to a congested intersection can trigger preparation of a full EIR. And housing advocates have long contended that CEQA presents an obstacle to affordable housing near jobs. Read the full article.

Governor’s Office Moves One Step Closer to Eliminating Automobile Delay as a Significant CEQA Impact

On January 20, 2016, the Governor’s Office of Planning and Research released a revised draft of proposed new CEQA Guidelines to replace automobile congestion-based thresholds for evaluating transportation impacts with thresholds that emphasize proximity to transit and a reduction in vehicle miles traveled (VMT) on a per capita or per employee basis.

SB 743, passed by the Legislature in 2013, requires OPR to establish thresholds for measuring transportation impacts that are designed to promote the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses., Further, SB 743 dictates that once the CEQA Guidelines are amended to include those new thresholds, auto delay will no longer be considered a significant impact under CEQA.  SB 743 gives OPR the option of applying the new thresholds only to certain locations near transit, or more broadly throughout the State.

OPR released its preliminary discussion draft of the Guidelines amendments in August 2014. The initial draft applied the new thresholds broadly, and focused generally on an assessment whether a project would result in VMT that would exceed regional averages. Vertikalni_semafor_animThe initial draft also suggested thresholds for measuring significance based on proximity to certain types of transit stops and lines.

In the updated recommendations released on January 20, the proposed Guidelines continue to apply a new VMT-based approach to all areas of the State.  Agencies would have a two-year period to transition to the new VMT-based approach.  Further, as under the initial draft, once this transition period ends, automobile delay could no longer be considered a significant adverse effect under CEQA.

The updated recommendations also continue to include a presumption that development projects located within one-half mile of either an existing major transit stop or a stop along an existing high quality transit corridor may be presumed to cause a less than significant.

A key difference between the newly proposed Guidelines and the initial draft is that the Guidelines themselves do not set forth specific standards to assess whether a project’s effect on VMT is a significant adverse impact. Much of the detail is now found in a Technical Advisory. The Advisory recommends thresholds for specific types of land uses, including the following:

  • Residential: A project exceeding both existing city household VMT per capita minus 15 percent, and existing regional household VMT per capita minus 15 percent, may indicate a significant transportation impact.
  • Office: A project exceeding a level of 15 percent below existing regional VMT per employee may indicate a significant transportation impact.
  • Retail: A net increase in total VMT may indicate a significant transportation impact. Further, “Lead agencies should usually analyze the effects of a retail project by assessing the change in total VMT, because a retail projects typically re-route travel from other retail destinations.”
  • Mixed Use: Lead agencies can evaluate each component of a mixed-use project independently, and apply the significance threshold for each project type included (e.g. residential and retail). In the analysis of each use, a project may take credit for internal capture.

In addition, the Technical Advisory suggests that screening thresholds could be used to determine whether additional quantitative analysis is needed.  Agencies could determine not to conduct additional analysis for projects that generate fewer trips than the threshold for studying consistency with a congestion management plan (typically 100 trips). Further,  agencies may create maps that identify low-VMT areas and presume that projects in those areas that incorporate features similar to the existing low-VMT development will tend to exhibit similarly low VMT.

The Technical Advisory also contains extensive advice about analyzing VMT associated with roadway improvement projects, and about analyzing roadway safety impacts. Finally, the Technical Advisory proposes a list of potential mitigation measures for reducing vehicle trips and mileage.

The deadline for comments on the proposed new Guidelines is February 29, 2016 at 5:00 PM.  OPR has scheduled informational webinars on February 1 and 9, both from 3 to 5 p.m.  More information is available on the OPR website.

Agency’s CEQA Analysis Must Consider the Project’s Long-Term Impacts

The Third Appellate District’s opinion in North Coast Rivers Alliance v. A.G. Kawamura (January 4, 2016) has left some practitioners scratching their heads trying to decipher the court’s holdings regarding CEQA requirements for projects that might continue operating past their initial termination date, project objectives, alternatives and cumulative impacts.

The California Department of Food and Agriculture prepared a program EIR for a seven-year program to eradicate the light brown apple moth, an invasive pest. The EIR determined that because an alternative of controlling the moth would not achieve the project objective of eradicating the moth, a control program would not be studied.

Epiphyas_postvittanaAfter the EIR was completed the USDA advised that the moth infestation had spread to such an extent that eradication was no longer feasible. The Department then approved a seven-year control program, based on the program EIR, finding the control program would use the same methods as were proposed for the eradication program, but to a lesser degree, resulting in lesser impacts.

The cities of Albany, Berkeley, Richmond and San Francisco, together with environmental organizations and anti-spray groups sued, challenging the Department’s approval on CEQA grounds. The appellate court agreed with several of their claims.

Fundamentally, the court found that the Department failed to evaluate the ongoing long-term impacts of the control program, in light of the EIR’s concession that a control program “would have to go on forever.” Because of these EIR statements, the court rejected the Department’s argument that it would be speculative to assume the control program would continue after the initial seven-year period.

As might be expected, the petitioners had argued that the Department’s approach amounted to unlawful piecemeal review of the first stage of an activity that would continue to operate over an indefinite period of time, but the court did not rule on that ground. Somewhat surprisingly, it instead identified a CEQA violation due to the Department’s reluctance to promise to prepare another EIR in the future. The court acknowledged that CEQA sometimes allows use of an earlier EIR for later activities, making it unnecessary to prepare a further EIR. The court, however, did not consider whether that rule could be applied to the control program, concluding that despite the possibility a new EIR might be prepared for the continuation of control activities after seven years, the EIR violated CEQA because it did not examine the impacts of those later activities.

The court also held that the EIR failed to address a reasonable range of alternatives. It did not discuss whether the alternatives that were considered – amounting essentially to a menu of potential methods of eradicating the moth and a no project alternative – comprised too narrow a range. In a novel ruling, it concluded that CEQA required study of a specific alternative that might have greater impacts than the proposed project — a never-ending control program.

The court then discussed whether the failure to study this alternative amounted to prejudicial error. To assess prejudice, it impliedly raised a question whether recirculation was required to address the impacts of a control program alternative. It cited case law to the effect that recirculation is only required when new significant information is added after circulation of a Draft EIR. The court, however, concluded that the new information “was clearly significant,” because it caused the Department “to change the program.”

The court labelled as “supposition” the Department’s reasoning that a control program would have lower impacts than an eradication program because it would employ the same measures but to a lesser degree. Noting that the record “supports an opposing inference” because a control program would need to go on forever, the court concluded that the EIR’s failure to study a control program left the record devoid of evidence to resolve the dispute. The court concluded that, as a result, there was no substantial evidence in the Department’s record sufficient to support its determination the new information was not significant.

CEQA YEAR IN REVIEW 2015

A Summary of Published Appellate Opinions Under the California Environmental Quality Act

In 2015, the California appellate courts continued to chart new ground as they grappled with some of CEQA’s most difficult and controversial questions. The  Supreme Court of California led the way, issuing four opinions on hotly contested issues. For the first time, the court addressed the problematic question of what thresholds of significance should be used to measure the significance of greenhouse gas emissions. In a decision that likely pleased few, the court blessed consistency with AB 32’s emissions reduction goal as an appropriate standard, but provided little guidance on how agencies might show consistency for specific projects. On the other hand, the court issued two decisions that place reasonable, common-sense limits on CEQA’s reach. In one decision, the court set constraints on the ability of project opponents to contest categorical exemption determinations by asserting that significant impacts will occur due to unusual circumstances. In the other, the court put an end to the counter-intuitive but persistent argument that CEQA extends beyond a project’s effects on the environment to require review of the environment’s effects on the project. In its final decision, the court held that a state university cannot use the legislature’s failure to appropriate earmarked funds as an excuse to avoid adopting mitigation measures for off-site impacts, but did not decide when a public agency can reject a proposed mitigation measure as infeasible due to budgetary constraints.

The year was also notable for the number of opinions dealing with CEQA exemptions. Two cases upheld categorical exemptions, applying the standards set by the supreme court in its decision on the unusual circumstances exception. In three others, the courts overturned the agency’s exemption determination, ruling in one case that the agency had interpreted the exemption too broadly, and in the others that the agency had failed to point to evidence in the record of its proceedings sufficient to show the exemption applied.

Seven court of appeal decisions addressed EIR adequacy, and upheld the EIR in every case. The proper baseline for analyzing impacts was an important theme, with the courts making it clear that a lead agency has broad discretion to set a baseline that reflects historical conditions occurring well before CEQA review starts. In another precedent-setting decision, a court held that an increased demand for emergency services due to a project is not an environmental impact that triggers CEQA’s mitigation requirements. The use and benefits of program EIRs also received significant attention in opinions recognizing that agencies may use program EIRs to defer evaluation of project-specific impacts and mitigation strategies to a later stage of approval when the information necessary for a detailed analysis becomes available. Finally, in what may prove to be one of the year’s most influential decisions, a court disapproved the practice of besieging the lead agency with burdensome comments on a draft EIR in order to stymie the EIR process, emphasizing that the purpose of comments should be to improve the EIR, and that the opportunity to comment should not be used as a means to wear out the lead agency.

READ THE FULL REPORT

CEQA Year in Review 3

CEQA Requires An Analysis Of The Project’s Impacts On The Environment, Not The Environment’s Impacts On The Project; California Supreme Court Sets Clear Limits On CEQA’s Reach

CEQA generally does not require that public agencies analyze the impact existing environmental conditions might have on a project’s future users or residents, according to the California Supreme Court’s decision in California Building Industry Association v Bay Area Air Quality Management District (S213478, December 17, 2015).  An agency must analyze how environmental conditions might adversely affect a project’s residents or users only where the project itself might worsen existing environmental hazards in a way that will adversely affect them, or if one of the provisions of CEQA which require such an analysis for certain airport, school, and housing projects applies.

Background. The California Building Industry Association, along with other organizations interested in the development of infill housing, objected to certain CEQA thresholds of significance proposed for adoption by the Bay Area Air Quality Management District. Their key concern was that the thresholds would impede development of infill housing by making an EIR necessary virtually any time future residents might be adversely affected by existing air pollution. CBIA filed a legal challenge after the thresholds were adopted, arguing that CEQA does not require an analysis of the impacts that existing environmental conditions might have on a new project’s occupants.

An analysis of the environment’s impact on a project’s users or residents is generally not required. A central issue before the supreme court was the validity of a provision of the CEQA Guidelines that indicates that CEQA requires an evaluation of existing environmental conditions at the site of a proposed project that might cause significant adverse impacts to future residents or users of the project. The District contended that CEQA’s references to a project’s effects on people imply that such analysis was required. The supreme court disagreed, concluding that in light of CEQA’s text, structure and purpose, a general requirement for an analysis of how existing environmental conditions will affect a project’s future users or residents would improperly expand the scope of the statute and add significantly to the burdens of compliance. As the court put it: “Given the sometimes costly nature of the analysis required under CEQA when an EIR is required, such an expansion would tend to complicate a variety of residential, commercial, and other projects beyond what a fair reading of the statute would support.”

An analysis of whether a project may exacerbate existing environmental hazards is required. While there is no general requirement in CEQA that the environment’s effects on a project be evaluated, CEQA does mandate that an analysis of a project’s impacts consider whether the project might cause existing environmental hazards to get worse. The court accordingly upheld language in the Guidelines which require an analysis of any significant effects on the environment a project might cause by bringing development and people into an area or by locating development in areas susceptible to hazardous conditions. “Because this type of inquiry still focuses on the project’s impacts on the environment — how a project might worsen existing conditions — directing an agency to evaluate how such worsened conditions could affect a project‘s future users or residents is entirely consistent with this focus and with CEQA as a whole.”

Several statutory exceptions to the general rule require an analysis of impacts to project users or residents in specific situations. The court also discussed several provisions of CEQA that require an analysis of the adverse effects of existing environmental conditions on persons who will occupy or use a project site. These statutes address certain airport and school construction projects, and the applicability of certain CEQA exemptions to specified types of housing development projects. The court emphasized, however, that “these statutes constitute specific exceptions to CEQA‘s general rule requiring consideration only of a project‘s effect on the environment, not the environment‘s effects on project users”

Perkins Coie attorneys Geoff Robinson and Steve Kostka represented a coalition of organizations interested in the development of infill housing together with various industry groups who participated in the case as Amici Curiae.

 

Court Rebuffs CEQA Challenge to Subway Tunnel Under Beverly Hills High

Beverly Hills and its school district have failed to persuade the court of appeal to block construction of a subway line beneath Beverly Hills High School. Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority, 241 Cal. App. 4th 627 (2015). The court upheld the CEQA analysis for the project against claims that significant new information had been disclosed relating to the viability of alternatives, and that localized air pollution and public health impacts had not been adequately studied.

The Los Angeles County Metropolitan Transportation Authority prepared and certified an environmental impact statement/environmental impact report for extension of Metro’s subway system to the Westside of Los Angeles. The EIS/EIR studied two alternative location options for a Century City station and recommended locating the station at Constellation Boulevard and Avenue of the Stars. Metro approved the subway project with the Constellation station location and a related tunnel alignment beneath the high school. The City and the school district consistently objected to the tunnel location and filed petitions for writ of mandate following Metro’s approval.

The court rejected two CEQA claims the City and/or the school district raised against the project. First, the court held that Metro was not required to prepare and recirculate a new draft EIS/EIR for public comment after introducing in the final EIS/EIR new information in the form of a fault investigation and tunnel safety reports. The court found that the new information “merely confirmed” that the alternative Century City station location was not viable due to a potential seismic hazard, and “also confirmed and expanded upon the draft EIS/EIR’s analysis of the potential environmental impacts from the Constellation station.” Contrary to the plaintiffs’ claims, the draft EIS/EIR fully evaluated both station options and addressed environmental issues arising from tunneling. The court also held that Metro did not trigger an obligation to recirculate by issuing an addendum to the final EIS/EIR that revised reported air quality impacts.

Second, the court upheld the EIS/EIR’s air quality analysis, concluding that CEQA did not require an assessment of localized air pollution and public health impacts from the project’s construction. The court determined that Metro was not required to analyze air quality impacts against localized significance thresholds, given that the agency analyzed the impacts against thresholds established by the regional air quality management district. Similarly, the EIS/EIR appropriately included a technical report that identified potential adverse health effects from exposure to identified pollutants from construction emissions; the document did not also need to include “an analysis showing how the actual construction emissions will specifically impact public health.”

Additionally, the court of appeal rejected non-CEQA claims raised by the City, concluding that Metro did not violate Public Utilities Code statutes when conducting a transit hearing requested by the City, the City received a full and fair hearing, and substantial evidence supported Metro’s decision and findings of fact.

 

Complex New Requirements for CEQA Analysis of Greenhouse Gas Emissions Set by Supreme Court

Newhall Ranch, a proposed mega-development in Los Angeles County, can’t seem to catch a break: besieged by setbacks since Newhall Land first filed an application to develop the land in 1994, the project has been the subject of over twenty-one public hearings and several law suits over its more than twenty year history. In Center for Biological Diversity v. California Department of Fish and Wildlife, the California Supreme Court dealt the project yet another blow, finding that the Department of Fish and Wildlife’s environmental impact report on two natural resource plans for the development violated CEQA.

While the County had already approved the land use plan for the development in 2003, DFW approval of resource plans and permits were still required.  DFW and the Army Corps of Engineers prepared a new environmental document, a joint EIS/EIR, for the resource plans.

The California Supreme Court invalidated DFW’s CEQA review, deciding that standard of significance used in the EIS/EIR’s analysis of Greenhouse Gas emissions was not supported by sufficient evidence and that mitigation measures calling for capture and relocation of a fully protected species were invalid. The Court’s ruling, especially its treatment of goals for statewide emissions reductions that were developed to implement A.B. 32, the Global Warming Solutions Act of 2006, will likely have a major long-term impact on environmental reviews for proposed projects throughout California.

Analysis of Greenhouse Gas Emissions

DFW analyzed GHG emissions using consistency with A.B. 32 emissions reductions goals as the standard of significance, using the 29 percent below “business as usual” target set out in the Air Board’s 2008 Scoping Plan as the measure of consistency. The EIR/EIS concluded that because the development’s GHG emissions would be 31 percent below the business as usual estimates for the project, it exceeded the statewide goal set out in the Scoping Plan, and would therefore not result in any significant GHG impacts.

The Court approved of DFW’s use of consistency with A.B. 32 and the Scoping Plan as a standard of significance. Under the Court’s reasoning, agencies may show that a project would have no significant impact on GHG emissions by demonstrating that the project will not interfere with attainment of the Scoping Plan’s goal that GHG emissions statewide be reduced by 29 percent from business as usual.

The court ruled, however, that the EIR had not adequately established the project’s consistency with the Scoping Plan.  Disagreeing with the approach that has become standard practice,  the Court ruled that that showing a “project-level reduction” that meets or exceeds the Scoping Plan’s overall statewide GHG reduction goal is not necessarily sufficient to show that the project’s GHG impacts will be adequately mitigated: “the Scoping Plan nowhere related that statewide level of reduction effort to the percentage of reduction that would or should be required from individual projects, and nothing … in the administrative record indicates the required percentage reduction from business as usual is the same for an individual project as for the entire state population and economy.”

According to the court, an EIR cannot simply assume that the overall level of effort required to achieve the statewide goal for emissions reductions will suffice for a specific project.

The Court indicated that “methods for complying with CEQA do exist” and briefly described a number of “potential options”  for compliance.  The Court noted, for instance, that an agency might be able to determine what level of reduction from business as usual is required for an individual project based on an examination of the data behind the Scoping Plan’s model.  As another option it noted that agencies might resort to numerical thresholds for analysis of the significance of greenhouse gas emissions.  The court, however, did not give any guidance on how these and the other  options it identified might be implemented, and  warned that the “potential pathways to compliance” it referred to may not be “sufficient to satisfy CEQA’s demands as to any particular project.”   As a result, the decision raises many more questions than it answers. 

Capture and Relocation Mitigation

DFW adopted numerous biological impact mitigation measures for the project, including measures that provided for collection and relocation of the unarmored threespine stickleback, a fully protected species. The Court acknowledged that DFW may conduct capture and relocation of the stickleback as a “conservation measure to protect the fish and aid in its recovery,” but held that an agency “may not rely in a CEQA document on the prospect of capture and relocation as mitigating a project’s adverse impacts.”

The Court reasoned that Fish and Game Code section 5515 prohibits “taking” a fully protected species, and that actions to capture and relocate must be considered a taking given the statutory language, structure, and history.

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