An EIR that did not squarely respond to detailed comments recommending additional mitigation measures has been held not to comply with CEQA. Covington v. Great Basin Unified Air Pollution Control District, 3d Dist. Court of Appeal Case No. C080342 (certified for publication 12/23/2019). The court of appeal emphasized that where an EIR identifies certain
Aesthetic and Traffic Issues in Historic Overlay District Necessitate EIR
A court of appeal has overturned a city’s mitigated negative declaration for a small mixed-use development in a historic overlay district, holding that aesthetic and traffic issues require the preparation of an environmental impact report. Protect Niles v. City of Fremont, 25 Cal. App. 5th 1129 (2018).
The proposed project, comprising 98 housing units
California Supreme Court Sets Standard for Air Quality Impact Analyses Under CEQA
The California Supreme Court has overturned the environmental impact report for a mixed-use development project, holding that the EIR inadequately explained the human health consequences of significant air pollutant emissions that would result from the development. Sierra Club v. County of Fresno, Cal. Supreme Court Case No. S219783 (Dec. 24, 2018). In so doing,
Seven-Year Extension of Diablo Canyon Lease Held Exempt from CEQA
A court of appeal has rejected CEQA and public trust challenges to a State Lands Commission lease extension allowing the Diablo Canyon nuclear power plant to continue operating through 2025. World Business Academy v. California State Lands Commission, 24 Cal. App. 4th 476 (2018).
Pacific Gas & Electric Company plans to cease operating Diablo Canyon in 2025, when the plant’s federal licenses will expire. The plant’s cooling water intake and discharge structures are on state-owned submerged and tidal lands, for which the Commission had issued leases to PG&E expiring in 2018 and 2019. The Commission granted PG&E a consolidated lease extension through 2025, relying on CEQA’s categorical exemption for continued operation of existing facilities.
CEQA’s categorical exemptions are subject to several exceptions that can force a lead agency to prepare a negative declaration or an environmental impact report. The “unusual circumstances” exception applies “where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” Here, Diablo Canyon opponents argued that continued operation of the state’s last nuclear power plant was rife with unusual circumstances that could cause significant environmental effects.
To show that the unusual circumstances exception applies, normally a challenger must show both: 1) unusual circumstances; and 2) a reasonable possibility of a significant environmental effect due to those unusual circumstances. Here, the Commission had made no finding regarding unusual circumstances. With no finding before it, the court of appeal elected to assume unusual circumstances did exist, and then proceeded to the second half of the test: whether there was a fair argument that the lease extension would cause significant environmental impacts.
Continue Reading Seven-Year Extension of Diablo Canyon Lease Held Exempt from CEQA
Air Resources Board’s Regulatory Relief For Small Truck Fleets Violated CEQA
A court of appeal has held that the California Air Resources Board violated CEQA when it issued a “regulatory advisory” notifying small trucking operations that they need not meet ARB’s regulatory deadline for retrofitting their truck engines, and that the regulation would soon be relaxed. John R. Lawson Rock & Oil, Inc. v. State Air
EIR For Railyard Did Not Adequately Analyze Air Quality Impacts
Rejecting most challenges to the environmental impact report for a new railyard near the Port of Los Angeles, a court of appeal nevertheless held that the EIR must be decertified because it did not adequately address air quality impacts in the vicinity of the new yard. City of Long Beach v. City of Los Angeles
Court Upholds Refinery EIR’s 2007 Baseline and Reliance on Cap-And-Trade for Climate Change Analysis
In a precedent-setting decision, the Fifth District Court of Appeal has upheld two key aspects of the 2014 environmental impact report for a refinery expansion project. Association of Irritated Residents v. Kern County Board of Supervisors No. F073892 (5th Dist., Nov. 21, 2017). First, the court approved the use of 2007 operating data for the refinery as part of the baseline environmental condition, even though the EIR’s notice of preparation was not issued until 2013. Second, the court held, on a matter of first impression, that compliance with California’s cap-and-trade program showed the project’s climate change impact would be less than significant. However, the court also found that the EIR erroneously concluded that federal law preempted CEQA review of certain environmental impacts of off-site rail activities, and thus failed to disclose and analyze these impacts; accordingly, the court overturned the county’s certification of the EIR.
The Proposed Refinery Expansion
Kern County approved a project to modify an oil refinery in Bakersfield. The refinery began operation in 1932 and was operating under air district permits that allowed processing of 70,000 barrels per day of crude oil and other hydrocarbons. In 2013, the new owner of the refinery proposed modifications to enable the refinery to process a greater variety of crude oils, including Bakken crude oil from North Dakota. The project did not propose an increase in the refinery’s 70,000 barrels per day capacity, but in addition to the refinery modifications, it proposed expanding existing rail transfer and storage facilities to allow offloading an average of 150,000 barrels per day from two unit trains; the balance of unloaded crude would be sent to other refineries.
The project was controversial because it would increase transport of Bakken crude, which is generally more volatile than other crude oils. The EIR described safety concerns with transporting crude by rail, including reference to several high-profile train accidents in recent years. Project opponents sued, alleging the EIR violated CEQA in numerous respects. The published portion of the court of appeal’s opinion addresses three of these challenges.
Continue Reading Court Upholds Refinery EIR’s 2007 Baseline and Reliance on Cap-And-Trade for Climate Change Analysis
Court Rejects Claim That Clinic Protests Might Cause Significant Environmental Impacts
A court of appeal has ruled that opponents of a new Planned Parenthood clinic did not establish a fair argument that anti-clinic protests might cause significant environmental effects. Therefore, the City of South San Francisco did not err in finding the clinic project exempt from CEQA. Respect Life South San Francisco v. City of South
Petitioner’s Failure to Comply With Discovery Regarding its Standing to Sue Results in Dismissal of CEQA Case
A CEQA case challenging the City of Wildomar’s approval of a Wal-Mart retail complex has been dismissed because the petitioner refused to comply with discovery requests regarding its standing to sue. Creed-21 v. City of Wildomar, 4th Dist. Court of Appeal Case No.E066367 (pub. order 12/19/2017).
CEQA cases generally are decided on the administrative
Court Finds CARB’s New Analysis of Biodiesel Low Carbon Fuel Regulations Still Doesn’t Comply With CEQA But Leaves Current Regulations In Place Pending Compliance
In 2013, the fifth district court of appeal ruled that the California Air Resources Board violated CEQA when it adopted its 2009 Low Carbon Fuel Standard regulations, and the court directed issuance of a writ of mandate requiring that CARB take corrective action. The court allowed the LCFS regulations to remain in effect while CARB completed a new CEQA analysis, concluding that leaving the regulations in place would provide more protection for the environment than suspending their operation. (See our post analyzing the court’s 2013 decision here.) CARB then completed a further CEQA analysis and adopted revised regulations. Now, the same court has held that the CARB’s new analysis failed to comply with CEQA or its prior decision. POET, LLC v. State Air Resources Board, 5th Dist. No. F073340 (May 30, 2017). This time, the court provided specific suggestions for further CEQA review, but it again allowed the revised regulations to remain in place while CARB takes further action to comply.
The Challenge to CARB’s Revised CEQA Review
The challenger, the largest U.S. ethanol producer, again contested CARB’s analysis of the environmental effects of the biodiesel portion of CARB’s LCFS regulations. Biodiesel combustion emits reduced greenhouse gases compared to other fuels, but increases NOx emissions, which have local and regional air quality impacts. The challenge attacked the Board’s decisions to: 1) limit its CEQA analysis to the impact of its new biodiesel regulations rather than including the effects of its original 2009 regulations; and 2) use 2014 statewide biodiesel emissions as the baseline for CEQA analysis.
The Board Did Not Comply with the Writ of Mandate or CEQA
First, the court of appeal held that CARB had not complied with the writ of mandate because it still had not analyzed the environmental impacts of its original biodiesel regulations, adopted in 2009. Instead, the CARB analyzed only the impacts of the new regulations it adopted in 2015, and compared biodiesel use under those regulations to statewide biodiesel use in 2014. The court held that the original 2009 regulations and its impacts were part of the “project” CARB was required to analyze.
Continue Reading Court Finds CARB’s New Analysis of Biodiesel Low Carbon Fuel Regulations Still Doesn’t Comply With CEQA But Leaves Current Regulations In Place Pending Compliance