California Adopts Ambitious New Greenhouse Gas Reduction Targets

Governor Jerry Brown has signed two related bills that will tighten greenhouse gas limits and increase legislative oversight over the California Air Resources Board, SB 32 and AB 197. Some of the key components of the two bills include:

  • New state-wide target for reductions in GHG emissions. SB 32 requires CARB to reduce statewide GHG emissions to 40% below the 1990 level by 2030. It also requires CARB to update its Scoping Plan to address the 2030 target and ensure GHG reductions will benefit the state’s most disadvantaged communities.
  • Public reporting of GHG and other emissions. CARB will be required to publish data on GHG emissions, air pollutants and environmental toxins on its website, including emissions for “each facility” that reports such information.
  • Prioritized direct reductions in GHG emissions by large emitters. Under AB 197, CARB must “prioritize . . . direct emission reductions at large stationary sources.” This provision is intended to decrease CARB’s reliance on cap-and-trade to achieve GHG reductions and instead focus CARB on direct reductions at large emitters like power plants, refineries and manufacturing facilities.

The new legislation will likely trigger heightened CEQA scrutiny for new projects as well as new regulations, which will increase costs and risks for developers, utilities, manufacturers and the transportation sector. Consistency with AB 32’s 2020 GHG reduction goals is now accepted as an appropriate standard under CEQA for measuring the significance of GHG emissions. The new, more ambitious, goal for reductions in GHG emissions set by SB 32 is likely to be used for the same purpose.  In addition, the GHG reductions necessary to meet SB 32’s stringent 2030 goal may require CARB to impose additional restrictions on fossil-fuel plants, given the aggressive GHG reduction measures authorized by the bill.  Further, by requiring direct reductions in emissions, AB 197 gives CARB a statutory basis to target manufacturing facilities. Manufacturers will also face greater public scrutiny, as CARB will publish emissions data for individual facilities.  Additional GHG reduction measures will also likely be applied to the transportation industry, such as increased fuel efficiency requirements.

For a detailed discussion of SB 32 and AB 197, see our September 15, 2016 Update:  California’s New Climate Change Laws Tighten Limits on GHG, Increase Legislative Oversight of CARB

Municipal Regulation of Telecommunications Equipment In Public Right Of Way Based On Aesthetic Considerations Not Preempted

The California Court of Appeal has upheld municipal regulation of telecommunications equipment in the public right-of-way against the argument that such regulations are preempted by state law. T-Mobile West LLC v. City and County of San Francisco, No. A144252 (1st Dist., Sept. 15, 2016).

At issue was a San Francisco ordinance passed in 2011 that required permits for wireless telecommunications in the right of way based on aesthetic considerations. Several telecommunications providers sued to challenge the ordinance as being preempted by two sections of the California Public Utilities Code: Section 7901, which gives telephone corporations the right to install telephone lines in the public right of way “in such a manner and at such points as not to incommode the public use of the road or highway or interrupt the navigation of the waters”; and Section 7901.1, which provides that local governments retain the right “to exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed” and this control must “be applied to all entities in an equivalent manner.”

The court of appeal rejected plaintiffs’ arguments that the ordinance was impliedly preempted by sections 7901 and 7901.1. The court found nothing in section 7901 or section 7901.1 that divested cities of their broad police power under the state constitution to regulate local aesthetics. In doing so, the court adopted interpreted the phrase “incommode the public use” in section 7901 broadly to encompass aesthetic enjoyment.

The court also distinguished between local regulations requiring site-specific permits based on aesthetic considerations (such as the San Francisco ordinance) and regulations requiring local franchises. Site-specific discretionary permits do not prohibit use of the right of way; instead, they are used to harmonize the interests and rights of telephone corporations with cities’ and counties’ other legitimate objectives. Local franchise requirements, on the other hand, have the immediate effect of barring telephone corporations’ use of the public-right-way in the absence of a franchise agreement.

Plaintiffs also maintained that the ordinance conflicted with section 7901.1 because the ordinance singled out wireless equipment for application of the permit requirements. Relying on the statute’s legislative history, the court adopted a narrow interpretation of section 7901.1 as applying only to temporary access to the right of way for construction purposes.

This opinion essentially tracks the holding in the Ninth Circuit’s opinion in Sprint PCS Assets v. City of Palos Verdes Estates, 583 F.3d 716 (9th Cir. 2009), which also found that city regulation of wireless facilities for aesthetic purposes to not be preempted by Public Utilities Code section 7901 and 7901.1. This opinion does, however, contain a closer analysis of state court decisions and now provides California authority for this proposition.





MOU Allocating Responsibility for Development of Groundwater Management Plan Not a Project Under CEQA

The Fourth Appellate District has held that a memorandum of understanding between a water district, county, property owner, and water company outlining mutual responsibilities for preparing a groundwater management plan governing the installation and operation of groundwater extraction wells was not a “project” requiring review under CEQA. The court based its decision on its conclusion that the memorandum itself did not constitute the groundwater management plan, but rather established a process for completing the plan. The court reasoned that after the groundwater management plan was completed, the county would retain full discretion to consider the final EIR, approve or disapprove the proposed plan and project, and could require additional mitigation measures or alternatives. Delaware Tetra Technologies, Inc., v. County of San Bernardino, 247 Cal.App.4th 352 (2016).


In 2002, the County of San Bernardino approved an ordinance governing the pumping of groundwater within the county. The ordinance required that operators of groundwater wells, unless specifically excluded, obtain a permit and comply with specified standards to maintain the health of aquifers in which pumping occurs. Several years after the ordinance was enacted, a landowner and water company proposed to install a number of groundwater wells, extract groundwater from the wells for fifty years, and transport the water through a pipeline to an aqueduct, from which the water ultimately would be distributed by a water district to end-users.

In 2011, the water district released a draft EIR covering the proposed project for public review and comment. The following year, the water district, county, property owner and water company negotiated a memorandum of understanding governing the proposed project. In the MOU, the parties agreed that a groundwater management plan, which would include monitoring, and mitigation components, would be developed in conjunction with finalization of the EIR.  The county thereafter approved a resolution finding that the MOU satisfied the exclusion provisions of the ordinance, and that a permit for the proposed project therefore would not be required.

Petitioner, a company that alleged its business would be harmed by the proposed project, challenged the resolution, arguing that the county was obliged, but failed, to perform a full review under CEQA before approving the MOU. The trial court disagreed, and upheld the county’s actions. The petitioner appealed.

The Court of Appeal’s Decision

In the published portion of its opinion, the court of appeal affirmed the judgment of the trial court and held that the county was not required to perform an environmental review under CEQA before approving the MOU. The court observed that an agency has no duty to comply with CEQA unless its actions constitute “approval” of a “project.” A “project,” the court said, exists only if, among other things, an activity “may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment….” The MOU, the court concluded, merely established a framework for completion of the groundwater management plan, and required that the plan ultimately be submitted to the board of supervisors, at which time the county would have full discretion to consider the final EIR, approve or deny the project, or require additional mitigation measures or alternatives necessary to avoid or substantially lessen the environmental impacts of the project. Therefore, the court concluded, the county did not violate CEQA by approving the MOU without undertaking a full environmental review.

In reaching its decision, the court distinguished the cases (beginning with the California Supreme Court’s decision in Save Tara v. City of West Hollywood) in which the agency took steps which committed it to a definite course of action regarding the project. By contrast, the county’s MOU did not hamper its full discretion to approve, deny, or condition the groundwater management plan, or the proposed groundwater pumping project, in the future.

The Take Home Message

The Delaware Tetra Technologies court declined to rule that approval of the first step towards adoption of the groundwater management plan amounted to approval of the proposed groundwater pumping project. The project could not go ahead without 1) approval by the county of the MOU, 2) approval by the county of the groundwater management plan, 3) approval by the water district of the groundwater management plan, and 4) approval by the water district of a water purchase and sale agreement. Since the MOU merely established the procedural framework for development of the groundwater management plan, and the county would later have full discretion to approve, deny, or condition the plan, the approval of the MOU did not “cause” a change in the environment, either directly or indirectly, and therefore did not constitute a “project” requiring CEQA review.

Uncertainty About an Agency’s Discretion to Determine Historical Significance for Purposes of CEQA Is Finally Put to Rest

Resolving a long-standing debate, the court in Friends Of The Willow Glen Trestle v. City Of San Jose (H041563), 6th Dist. Aug. 12, 2016,  ruled that San José’s determination that a railroad trestle bridge was not a historic resource was to be evaluated under the substantial evidence standard of review. It rejected the argument that the fair argument standard should apply, even though San José made its determination in the context of a mitigated negative declaration.

San José proposed to demolish a wooden trestle bridge that had been constructed in 1922, and replace it with a steel truss bridge. The city evaluated the historical significance of the trestle bridge in an initial study based on a review of information that had been developed for an earlier project. Those earlier documents concluded that the trestle was typical of its kind, that bridge components had likely been replaced in the preceding decades, and that the trestle bridge was not historically significant. The initial study for the bridge concluded that, even though the trestle was “locally important,” it was not historically significant.

Project opponents submitted a report claiming the trestle was “an important historical icon” and concluding that it qualified for listing in the California Register of Historic Resources. The city disagreed, and ratified the initial study’s analysis by adopting a mitigated negative declaration.

The project opponents sued. They claimed the city’s determination was invalid because the record contained a fair argument that the bridge project may have a significant effect on historic resources. The trial court agreed and ordered the city to prepare an EIR. The issue on appeal was whether the city’s decision should be reviewed under the fair argument standard or the substantial evidence standard.

The Willow Glen Trestle court relied on the language of section 20184.1 of CEQA, which identifies criteria under which a resource is deemed or presumed to be historically significant. It noted that the statute allows an agency to determine that resources presumed to be historic (such as resources listed on a local register) are not historically significant when it finds “the preponderance of evidence” supports that conclusion. Logically, if it makes such a finding, that finding must be upheld if it is supported by substantial evidence. The court then reasoned that the same standard must apply to determinations made under the final sentence in section 20184.1, which applies to resources that are not presumed historic. “Since the standard of judicial review for a presumptively historical resource is substantial evidence rather than fair argument, it cannot be that the Legislature intended for the standard of judicial review for a lead agency’s decision under the final sentence of section 21084.1 to be fair argument rather than substantial evidence.”

The court also addressed other court decisions on the issue. It ruled that those cases were not dispositive, as they did not explicitly consider the appropriate standard of review of a determination whether a resource is historically significant. More importantly, the Willow Glen Trestle court rejected its 1997 decision in Architectural Heritage Assn. v. County of Monterey — the case which triggered a long-running controversy about the issue — stating that “our decision in Monterey did not accurately state the appropriate standard of judicial review that applies in this case.”


City’s Attempt to Use Emergency Ordinance to Scuttle Unpopular Project Violates Developer’s Vested Right

In Stewart Enterprises Inc., v. City of Oakland (2016) 248 Cal.App.4th 410 the court of appeal provided important clarification on the limits of a local agency’s ability to use an emergency ordinance to reach back and prohibit a previously-approved project.

Stewart Enterprises involved a proposed crematorium in Oakland. After obtaining administrative zoning clearance for the proposed use, the developer bought the property and applied for a building permit. Five days after the building permit issued – and due to public opposition to the crematorium – the city council adopted an emergency ordinance requiring a use permit for any new crematorium activity in the city.

The emergency ordinance was written to apply to “any building or structure for which rights to proceed with said building or structure have not yet vested pursuant to the provisions of State law. . .” Thus, the ordinance focused on vesting under the so-called “judicial” vested rights doctrine, which provides that a permit-based right does not “vest” until the developer has performed substantial work and incurred substantial liabilities in good-faith reliance on the permit. Having approved the emergency ordinance, the city notified the developer it could not proceed with the crematorium without first obtaining a use permit.

After the developer’s administrative appeals failed, it filed suit, claiming among other things, that the emergency ordinance impaired its vested right to go ahead with the crematorium. That claim was not based on the “judicial” vested rights doctrine, however, but on the city’s own permit-vesting ordinance, which provided, in part, that when a subsisting building permit has been lawfully issued “neither the original adoption of the zoning regulations nor of any subsequent rezoning or other amendment thereto shall prohibit the construction, or other development or change, or use authorized by said permit.”

The trial court sided with the developer, finding that the city’s permit-vesting ordinance precluded application of the emergency ordinance to require a use permit.

On appeal, the court evaluated three issues: (1) whether the developer had a vested right under the city’s permit-vesting ordinance; (2) if so, whether the emergency ordinance impaired that right; and (3) if the developer had a vested right that was impaired, whether the impairment was justified based on the need to protect public health and welfare.

The court quickly determined that the developer had a vested right under the city’s permit-vesting ordinance, since the ordinance precluded application of subsequently-enacted zoning regulations where application of the regulations would prohibit construction authorized under a given permit.

Next, the court found that application of the emergency ordinance would impair the developer’s vested right based on the simple fact that it prevented construction of the crematorium under the building permit. The court was unpersuaded by the city’s claim that the vested right was not impaired because the developer had the option of pursuing a use permit. The possibility the developer could regain the right to build the crematorium if it obtained a use permit does not, the court noted, change the fact that “a project can be ‘prohibited’ even if the fulfillment of certain contingencies might at some later date reauthorize it.”

Lastly, the court considered the city’s claim that impairment of the vested right was necessary in order to protect public health and welfare. While the courts have recognized that vested rights may be impaired when necessary to address a “menace to public health and safety or a public nuisance,” such a finding must be supported by substantial evidence. The court found that letters of opposition to the crematorium and general comments expressing concern about the crematorium’s potential effects on public health were insufficient to make the required showing. Although it declined to establish a bright line rule, the court indicated that to justify impairment of a vested right, the record would likely need to include “actual” evidence that the use poses an unmitigated risk to public health.

Stewart Enterprises does not cover new ground. However, the decision is an important reminder that a vested right—whether created as a matter of law or pursuant to a vesting ordinance – may not be impaired, no matter how unpopular the project, without the governing agency meeting a heavy burden of proof.


Bay Area Air Quality Management District’s CEQA Guidelines on Pollution Impacts to Project Occupants and Users Are Invalid

The significance thresholds for exposure of receptors to harmful air pollution in the Bay Area Air Quality Management District’s CEQA Guidelines cannot provide the basis for requiring an EIR or mitigation measures, when used to measure the impact of existing air pollution on future occupants or users of a project. As a result, the District’s Guidelines are invalid to the extent they indicate that lead agencies should ordinarily apply the receptor thresholds to evaluate the effects of existing environmental conditions on a proposed project’s occupants or users. California Building Industry Assn. v. Bay Area Air Quality Management District, No.A135335 (First Dist. as modified, Sept. 9, 2016).

Background. The lawsuit was filed by the California Building Industry Association seeking to overturn the District’s significance thresholds for exposure of receptors in a new project to existing toxic air contaminants and particulates. CBIA’s primary concern was that by increasing the burdens of CEQA compliance, the thresholds would hamper development of infill housing. Arguing that CEQA is limited to a project’s impacts on the environment, and does not extend to the environment’s impacts on a project, CBIA claimed the District’s receptor thresholds were inconsistent with CEQA to the extent they treat the impacts of existing air pollution on occupants or users of a new projects as an environmental impact.

In a decision issued in late 2015 (see our 12/17/2015 post) the supreme court ruled that an analysis of the effects of existing environmental conditions on a project’s occupants or users is ordinarily not required under CEQA, but that CEQA does require an analysis of how a project might exacerbate existing environmental hazards. The court sent the case back to the court of appeal, instructing it to consider the validity of the District’s significance thresholds in light of these principles.

The court of appeal’s opinion. The opinion issued by the court of appeal after the case was sent back to it contains four important rulings on use of the District’s receptor thresholds.

A lead agency may not require an EIR or mitigation measures for the sole reason that future project occupants or users will be exposed to health risks from a nearby source of harmful air pollution.

The District conceded that the purpose of the challenged receptor thresholds is to give public agencies reviewing a project under CEQA a basis for determining whether future occupants or users will be exposed to unacceptable health risks due to emissions from nearby pollution sources. That purpose, the court concluded, cannot be squared with the rule that CEQA does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or occupants.

Public agencies may elect to evaluate the effect of existing environmental conditions on future occupants or users of their own projects.

The supreme court had noted in its opinion that CEQA does not bar a public agency from considering the effect of existing conditions on a project it proposes to undertake itself. Accordingly, the court of appeal ruled that an agency may elect to use the District’s receptor thresholds as guidance in assessing the effect of emissions on occupants or users of its own projects.

The District’s receptor thresholds may be applied to determine whether a proposed project would worsen existing environmental conditions.

CEQA’s focus is on the changes a proposed project will make to the physical environment. As a result, when a project might worsen existing environmental conditions, the District’s receptor thresholds may appropriately be used to assess the impacts on project occupants or users to the extent the impacts stem from changes the project will make to the environment.

The District’s receptor thresholds may be used to analyze impacts on a project’s occupants or users where such an analysis is required by statute.

Several provisions of CEQA require an analysis of the health effects of existing environmental conditions on a project’s occupants or users in specific situations. These statutes include school siting and construction projects and exemptions from CEQA for various categories of housing development projects. Because these statutes mandate an analysis of the impacts of air pollution on the project’s occupants or users, the receptor thresholds may permissibly be used for that purpose.

Conclusion. The court rejected the District’s argument that its Guidelines were merely advisory, finding that “they suggest a routine analysis of whether new receptors will be exposed to specific amounts of toxic air contaminants” Having ruled that it would be improper for a lead agency to use the District’s receptor thresholds to require an EIR, mitigation measures, or other CEQA review when such a use is not authorized, it concluded the Guidelines should be invalidated in part. The court accordingly instructed the trial court to issue an order invalidating those portions of the District Guidelines that suggest lead agencies should apply the receptor thresholds “to routinely assess the effect of existing environmental conditions on future users or occupants of a project.”

California Supreme Court Reforms Precondemnation Entry and Testing Statutes to Allow for Jury Determination of Damages

In Property Reserve v. Superior Court, S217738 (Cal. Supreme Court, July 21, 2016) the Supreme Court of California held that the precondemnation entry and testing statutes are constitutional when reformed to permit affected property owners the right to have a jury determine damages.

The California Department of Water Resources sought a court order allowing it to conduct environmental and geological testing on more than 150 privately owned parcels to investigate the feasibility of adding water conveyance facilities to the Sacramento-San Joaquin Delta to deliver water from Northern California to Central and Southern California. The proposed environmental activities consisted of mapping and surveys while the proposed geological activities consisted of drilling deep holes or borings.

The trial court authorized the Department to conduct the environmental testing subject to detailed limitations in its order. The court, however, denied the Department’s request to conduct geological testing under the precondemnation entry and testing statutes, ruling that such activities would constitute a taking, and the Department would therefore need to initiate an ordinary condemnation proceeding.

The court of appeal upheld the trial court’s denial of the Department’s request to conduct geological testing, but reversed the trial court’s grant of authority to conduct environmental testing. The court of appeal held that the precondemnation entry and testing statutes are limited to “innocuous or superficial” activities, and determined that because the Department’s proposed activities were not, they would constitute a taking, which would require that the Department file a condemnation case.

The California Supreme Court reversed. First, the court examined the legislative history of the precondemnation statutes and determined that the statutes were not limited to activities that were “innocuous or superficial.” The court held “that the current precondemnation entry and testing statutes are properly interpreted to encompass the type and degree of precondemnation environmental and geological testing” proposed by the Department.

The court then examined the procedure under the precondemnation statutes. As written, the statutes require that a public entity obtain a court order authorizing precondemnation entry and testing and deposit an amount of probable compensation for potential losses resulting from those activities. The court found the statutes “constitutionally deficient” because they do not give a property owner the right to a jury trial on the amount of damages for precondemnation activities, while the takings clause in the California Constitution guarantees an affected property owner the right to have the amount of just compensation determined by a jury. Rather than invalidating the precondemnation entry and testing statutes on this ground, however, the court determined that the appropriate remedy “is to reform the precondemnation entry statutes so as to afford the property owner the option of obtaining a jury trial on damages  . . . .” Accordingly, the court held that the precondemnation statutes are constitutional when the procedure is reformed to allow for a jury determination of damages.

The court’s decision is significant as it allows public agencies to avoid a classic condemnation proceeding for certain precondemnation activities, while providing property owners the option of having a jury determine the measure of their damages for such activities.


Neighbors’ Personal Stake In Preserving Local Parking Regulations Precluded Finding Of Public Interest

Neighbors who were suing to maintain existing neighborhood parking regulations were pursuing their own personal interests and did not qualify for the public interest exception from the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. Because their Brown Act claim had no merit, it was properly dismissed as an anti-SLAPP suit. Cruz v. City of Culver City, No. B265690 (2nd Dist. Aug. 8, 2016).

Learning that the City Council of Culver City was considering a church’s request to change neighborhood parking restrictions, neighbors sued claiming the Council’s action violated the Brown Act because the process had been initiated during the public comment period rather than as a noticed agenda item. In response to the City’s motion to dismiss the action under the anti-SLAPP statute, plaintiffs argued they were subject to the public interest exception from the statute because their action concerned a matter affecting the public interest.

The court held that the Council’s discussion at the hearing and its decision to place the parking item on a future agenda, were activities arising from free speech, making the anti-SLAPP law applicable. The court also rejected plaintiffs’ claim that they were subject to the public interest exception to the anti-SLAPP statute. The public interest exception applies only to actions brought solely in the public interest, and plaintiffs’ action did not qualify because “[k]eeping the parking restrictions at status quo would directly benefit plaintiffs . . . [who] sought personal relief in the form of a halt to any attempts by the church to undo the long-standing parking restrictions.”

Because the anti-SLAPP statute applied, plaintiffs had the burden of showing it was probable they would prevail on the merits. They failed to satisfy this burden. The Brown Act allows a Council to discuss and take action on non-agenda items in three circumstances: (1) the Council may briefly respond to statements or questions from persons exercising their right to publicly testify at a hearing; (2) the Council may ask a question for clarification, make a brief announcement, or make a brief report on its own activities; and (3) the Council may ask staff to provide factual information, report back at a later time, or place an item on a future agenda. The Council’s discussion and decision fell within all three exceptions. Accordingly, there was no Brown Act violation, and plaintiffs’ action was properly dismissed under the anti-SLAPP statute.

General Plan’s Size Ranges for Shopping Centers a “Flexible” Policy, Not a Rigid Mandate

The City of Modesto’s General Plan includes a policy providing that certain neighborhoods “should” include a “7-9 acre neighborhood shopping center, containing 60,000 to 100,000 square feet.” The Fifth District Court of Appeal upheld against challenge the city’s determination that development of an approximately 170,000 square foot shopping center on about 18 acres in one such neighborhood would be consistent with that policy. Naraghi Lakes Neighborhood Preservation Ass’n v. City of Modesto.

Over neighborhood opposition, the city approved a general plan amendment and rezoning to allow construction of the shopping center. In upholding the city’s findings that these actions were consistent with its general plan, the court first stated that the project was compatible with general plan policies aside from its identification of acreage and square footage figures.  The court then deferred to the city’s interpretation of the latter policy as offering “flexible descriptions to provide a basic model or pattern to guide the future development of the applicable neighborhood,” rather than “rigid development mandates.”

The court found this interpretation was supported by the plain language of the general plan, including its use of the permissive word “should” in place of the mandatory “shall.” The record also contained substantial evidence, the court determined, that the city consistently applied the acreage and square footage figures flexibly, as it previously had approved shopping centers larger than the stated ranges.

The court’s decision reinforces existing case law emphasizing the significant discretion a local agency enjoys when considering whether a proposed development is consistent with its general plan.

EIR’s Energy Impacts Analysis Fails To Satisfy CEQA’s Requirements 


In Ukiah Citizens for Safety First v. City of Ukiah, 248 Cal.App.4th 256 (2016) the First District Court of Appeal concluded that the City of Ukiah’s EIR for a proposed Costco failed to satisfy CEQA’s requirements for evaluating energy impacts.

The project involved the construction of a new Costco store and gas station. The city certified the EIR and adopted a statement of overriding considerations and adopted legislation to approve the project entitlements several weeks later.  Ukiah Citizens for Safety First filed a petition for a writ of mandate challenging the EIR and the project approvals on a number of grounds, including that the EIR failed to properly evaluate the project’s energy impacts.

The City’s Energy Impacts Analysis

CEQA provides guidance on energy impacts that only recently has come into focus. Public Resources Code section 21000(b)(3) provides that an EIR must incorporate a statement regarding “mitigation measures proposed to minimize significant effects on the environment, including, but not limited to, measures to reduce the wasteful, inefficient, and unnecessary consumption of energy.” Section 15126.4(a)(1)(C) of the Guidelines provides that: “energy conservation measures, as well as other appropriate mitigation measures, shall be discussed when relevant.” And Appendix F of the Guidelines provides a list of possible energy impacts and potential conservation measures that are intended to assist the lead agency in preparation of an EIR.

In this case, the EIR did not contain a separate discussion of energy impacts, but instead mentioned energy impacts at various points throughout the environmental analysis. For example, the EIR determined that the project could result in a potential increase in electrical and natural gas usage, and it discussed the effects of energy usage with respect to the project’s potential impacts on air quality and greenhouse gas emissions. The EIR concluded that the project “would not exceed existing gas and electric supply or result in wasteful, inefficient, or unnecessary consumption of energy.” In support of this conclusion, the EIR noted that the project would conform to Building Code energy conservation standards, and that the project’s design incorporated several sustainable features.

Ukiah Citizens for Safety First claimed that the EIR failed to provide sufficient information regarding the project’s energy consumption, and generally failed to satisfy Appendix F. The city, Citizens contended, was required to calculate the project’s energy use attributable to project-generated vehicle trips, and to also calculate the project’s energy consumption during construction and operational phases.

The court sided with Citizens and found the EIR’s energy impacts deficient: The analysis failed to calculate the energy impacts of project-related vehicle trips, and relied on compliance with the building code standards to mitigate the project’s construction and operational energy impacts instead of providing a complete evaluation under Appendix F. The court further noted that the city’s reliance on mitigation measures designed to reduce greenhouse gas emissions was insufficient with respect to energy impacts.

The Addendum

The court then considered the effect of an addendum to the EIR the city had prepared to “clarify” its energy impacts analysis in response to a recent appellate court decision.  The court found that the addendum was not part of the administrative record because it was not before the city when the EIR was certified and the project was approved; thus, the addendum could not be considered by the trial court in its consideration of Citizens’ petition. Because the EIR was deficient when it was certified and the city approved the project, the addendum could not retroactively fix the EIR so as to negate Citizens’ claim that the city abused its discretion in approving the project.


The takeaway from Ukiah Citizens for Safety First is this: sizable development projects, and particularly those that may generate significant vehicle trips, should not gloss over Appendix F when discussing potential energy impacts. Failure to identify energy impacts associated with project vehicle trips may be a red flag to project opponents, as would reliance on building or construction standards as mitigation. Project applicants and lead agencies would be well served by evaluating (or at least distinguishing) the potential energy impacts and mitigation measures listed in Appendix F.