While a number of court decisions have considered how CEQA lead agencies should assess the significance of a project’s greenhouse gas emissions, few have examined mitigation measures for those impacts. In Golden Door Properties, LLC v. County of San Diego, 50 Cal. App. 5th 467 (2020), the Fourth District Court of Appeal issued the

The Federal Court of Appeals for the Ninth Circuit recently affirmed a district court order requiring that the National Marine Fisheries Service, the Corps of Engineers, and the Bureau of Reclamation conduct spill operations and monitoring at dams and related facilities in the Federal Columbia River Power System in order to protect migrating salmon and

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.

Kern County Refinery

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

In November 2014, we reported on the controversial court of appeal decision that overturned the environmental impact report for the San Diego Association of Governments’ 2050 Regional Transportation Plan and Sustainable Communities Strategy.  The court faulted the EIR for failing to assess the plan’s consistency with the 2050 greenhouse gas emissions reduction goal contained in

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

In a 2-1 decision, the Court of Appeal upheld the California Air Resources Board’s cap-and-trade program for greenhouse gas allowances. California Chamber of Commerce v. State Air Resources Board,  No. C075954 (3rd Dist., April 6, 2017). In upholding the validity of the auction used by the California Air Resources Board to distribute a portion of the greenhouse gas allowances auction, the opinion created an important new test for assessing whether the auction should be considered a tax. The majority found that the allowance auction was not compulsory and provided a valuable commodity to the purchaser, and thus was not a tax requiring supermajority approval under Proposition 13.

Background on CARB’s GHG Cap-and-Trade Program

In 2006, California enacted AB 32 with the goal of reducing greenhouse gas (GHG) emissions to 1990 levels by the year 2020. The California Air Resources Board (CARB) is the designated state agency charged with regulating sources of GHG emissions under AB 32. AB 32 directed CARB to adopt rules and regulations to achieve the maximum technologically feasible and cost-effective reductions in GHG emissions.

Smoking power plantPursuant to AB 32’s directives, CARB promulgated regulations that created a cap-and-trade-program. The program sets an aggregate emissions “cap” on covered entities and enforces the cap by issuing a limited number of allowances, the total value of which is equal to the cap. Covered entities must demonstrate compliance with the program by surrendering allowances that correspond to that entity’s emissions requirements.

Emissions allowances can be obtained in three ways: 1) Some allowances are distributed by CARB for free; 2) allowances are distributed by CARB through an auction; and 3) allowances can be obtained by trading on the secondary market.

CARB’s allowance auction takes place through a single round of sealed bidding, and winners pay the market clearing price. In 2012, the state legislature passed four bills specifying how the auction proceeds would be used to support the regulatory purposes of AB 32.

Several corporations and industry groups challenged the auction mechanism as exceeding CARB’s statutory authority under AB 32 and as an unconstitutional tax that violated the supermajority requirements of Proposition 13.
Continue Reading Court of Appeal, in split decision, upholds CARB cap-and-trade program

The First District Court of Appeal has upheld the San Francisco Bay Area’s Sustainable Communities Strategy.  The court rejected  the claim that such strategies  must account for the effects of statewide greenhouse gas reduction mandates. Bay Area Citizens v. Association of Bay Area Governments, 248 Cal. App. 4th 966 (2016).

The Sustainable Communities and