The First District Court of Appeal held that Public Resources Code section 22531 unconstitutionally restricted judicial review of licensing decisions by the Energy Resources Conservation and Development Commission regarding thermal power plants over 50 megawatts. Communities for a Better Environment v. Energy Resources Conservation and Development Commission, No. A157299 (1st Dist., Dec. 8, 2020).

Section 22531(a) restricts the judicial review of decisions by the Energy Commission regarding the licensing of large thermal power plants to the California Supreme Court. Review is exclusive and no other courts may hear these challenges. Section 22531(b) limits the Supreme Court’s review to determining whether the Commission violated petitioner’s rights under the California or federal constitutions and bars courts from reviewing the Commission’s factual findings.

Two nonprofit environmental groups challenged the constitutionality of section 22531. Plaintiffs argued that (1) section 25531(a) unconstitutionally restricted the powers of the superior and appellate courts, and (2) section 25531(b) unconstitutionally restricted a court’s ability to review the facts in such challenges.

Section 25531(a)

The court of appeal held that section 25531(a) violated the California Constitution because it impermissibly divested lower courts of jurisdiction. The court relied on caselaw holding that the state Legislature may not divest courts of their original jurisdiction granted under Article VI, section 10 of the California Constitution unless another provision of the Constitution empowers the Legislature to do so. Article VI, section 10 vests original jurisdiction in the Supreme Court, courts of appeal and superior courts in matters involving extraordinary relief, including petitions for mandamus and prohibition.

The court rejected the Energy Commission’s argument that Article VI, section 10 was ambiguous as to which courts can hear extraordinary writ proceedings such as those concerning Energy Commission decisions. It also declined to consider the legislative history of Article VI, including a failed amendment that would have limited the Legislature’s ability to restrict review to the Supreme Court.

In addition, the court held that Article XII, section 5 of the Constitution, which gives the Legislature plenary power over the Public Utilities Commission (including the scope of judicial review of PUC decisions), did not authorize section 25531(a) in its current form. The previous version of section 25531(a) made Energy Commission decisions subject to judicial review “in the same manner as” PUC certificate decisions, which were only reviewable by the Supreme Court. The version under review did not equate Energy Commission review with PUC review and covered all Energy Commission licensing decisions, not just ones that required a PUC certificate. Thus, while the prior version of section 25531(a) limited judicial review in matters involving applications by regulated electric utilities that would also need PUC approval (of a certificate of public convenience and necessity), the current version allowed licensing decisions involving independent power producers without any additional PUC review. Article XII, section 5 of the Constitution did not authorize this impingement on court jurisdiction.

Section 25531(b)

The court also held that Section 25531(b) violated Article VI, section 1 of the Constitution because it prevented courts from reviewing evidence and effectively conferred judicial power on an administrative agency. Unlike the PUC, the Energy Commission was not created by the Constitution nor was it vested with independent judicial powers. Because section 25531(b) did not allow for the review of the Energy Commission’s factual findings by a court, it was unconstitutional.

 

 

An agency must prepare an environmental impact statement when it fails to address expert scientific evidence that undermines its conclusions about a project’s environmental effects. An agency also must prepare an EIS when there are substantial questions about whether a project will have a cumulatively significant impact. Bark v. U.S. Forest Service, 958 F.3d 865 (9th Cir. 2020).

The case involved a forest management project and timber sale in Mt. Hood National Forest. The primary purpose of the project was to reduce the risk of high-intensity wildfires and promote safe fire-suppression activities. The project would involve variable density thinning, which removes trees and reduces canopy cover.

To comply with NEPA, the Forest Service prepared an Environmental Assessment and issued a Finding of No Significant Impact. The plaintiffs argued that the Forest Service should have prepared an EIS instead, citing three of the ten factors listed in the NEPA regulations that can trigger the need for an EIS: The degree to which the environmental effects are likely to be highly controversial, the degree to which the possible environmental effects are highly uncertain or involve unique or unknown risks, and whether the action is related to other actions with individually insignificant but cumulatively significant impacts. The court ruled that all three of these factors mandated an EIS.

Controversial and Uncertain Effects

The court held that the project’s effects were both highly controversial and uncertain. The plaintiffs had submitted to the Forest Service numerous expert studies indicating that fuel reduction does not necessarily prevent large forest fires, and may even intensify a fire. The Forest Service did not meaningfully address these studies in the EA and FONSI. Thus, the evidence cited by the plaintiffs showed a substantial dispute about the effect of variable density thinning on fire suppression. This dispute warranted an EIS because it raised substantial questions about whether the project would have a significant environmental effect.

Cumulative Impacts

As a separate basis for its decision, the court ruled that an EIS was required because there were substantial questions about whether the project would have a cumulatively significant environmental impact. The EA included a list of other projects considered in its cumulative effects analysis but did not provide any quantified or detailed information about these other projects and their combined impacts. The analysis largely consisted of cursory and conclusory statements. The court held that this analysis of cumulative impacts was insufficient.

Post-Script: Effect of the New NEPA Regulations

The court’s rulings were based on the NEPA regulations in effect at the time the case was decided. The Council on Environmental Quality’s updated NEPA regulations took effect September 14, 2020 (40 C.F.R. parts 1500–1508). The new regulations do not include the list of factors that had been used to determine whether a project will have a significant effect on the environment. Under the new regulations, the assessment of whether a project’s impacts are significant, and thus whether to prepare an EIS, is to be based on “the potentially affected environment and degree of the effects of the action.” (40 C.F.R. § 1501.3(b)). It is not clear whether the courts will interpret and apply the new regulations (assuming they withstand pending legal challenges) to require the same degree of scrutiny of an agency decision to prepare a FONSI as the regulations they replace.

 

A court of appeal held that a plaintiff did not have public interest standing to sue Coastal Commissioners for violating disclosure obligations concerning ex parte communications because the lawsuit was not brought as a mandamus action. Spotlight on Coastal Corruption v. Kinsey, No. D074673 (4th Dist., Nov. 24, 2020).

The California Coastal Act allows members of the Coastal Commission to have ex parte communications with persons interested in Commission matters but requires Commissioners to publicly disclose such communications prior to or at the next Commission meeting. Violation of the disclosure requirement is punishable by a civil fine of up to $7,500, and a court may award attorneys’ fees to a plaintiff who successfully prosecutes a violation proceeding.

Plaintiff, a lawyer-created entity whose stated mission was to require Commissioners to “follow the Coastal Act with regard to ex parte communications” filed suit against five Commissioners alleging hundreds of violations of the disclosure requirements and seeking over $20 million in fines. Following a trial, the court found that approximately 10% of the alleged violations had occurred and imposed fines totaling $56,800. The trial court also found that Spotlight was the prevailing party in the litigation and awarded a base attorneys’ fee of $529,046 plus a multiplier, for a total attorneys’ fee award of $929,046.

The principal issue on appeal concerned plaintiff’s standing to assert its claims. Plaintiff contended that it had “public interest” standing, which allows a party lacking conventional standing to pursue a claim where the question is one of public right and the object of the mandamus action is to procure the enforcement of a public duty. The court rejected this argument on the ground that public interest standing is allowed only in the context of mandamus proceedings and plaintiff’s complaint did not contain a mandamus claim.

Although plaintiff’s complaint purported to seek a writ of mandate, the only places the word “mandate” or “mandamus” appeared were in the caption (or title) and the prayer for relief. The court pointed out that neither the caption nor the prayer determined the nature or legal effect of the claims. The body of plaintiff’s complaint lacked essential allegations for a writ of mandate, including factual allegations showing that plaintiff lacked any plain, speedy, and adequate remedy at law. “This case” the court said, “has always been all about money—civil fines and attorneys’ fees” and plaintiff lacked standing to seek those penalties and fees.

The court of appeal ordered the trial court to enter judgment in favor of the defendants and “to conduct further proceedings consistent with this opinion, including but not necessarily limited to a motion by Defendants for prevailing party attorneys’ fees and costs.”

A claim that a contract for construction of a school violated public bidding requirements did not become moot after construction was completed because effective relief — in the form of disgorgement of public funds paid to the contractor — was still available in plaintiff’s taxpayer action. Davis v. Fresno Unified School District (Davis 2), No. F079811 (1st Dist., Nov. 24, 2020).

Public school construction contracts generally must be competitively bid under public bidding laws. The Fresno Unified School District sought to rely on an exception for contracts under which the school district leases out district-owned property in return for the lessee’s agreement to construct a building for the use of the school district. Such a “lease-leaseback” arrangement, if properly structured, is exempt from public bidding laws. In Davis v. Fresno Unified School Dist., 237 Cal.App.4th 261 (2015) (Davis 1), the court held that the District’s lease-leaseback arrangement for construction of a $36 million middle school did not qualify for the exemption because it did not create a true lease or include any financing component, both of which were essential statutory predicates to an exemption from public bidding laws. The court declared the construction contract invalid and sent the case back to the trial court for further proceedings. Our report on the case is available here.

On remand, the District argued that the case had become moot because the school had already been built. The trial court agreed, reasoning that invalidating the contract was no longer effective relief because the contract had been fully performed. It also concluded that because the lawsuit had been brought as a validation action — i.e., one focusing on the validity of the contract rather than on the rights of the parties — disgorgement of monies paid to the contractor was not available relief because California law does not allow disgorgement in a validation proceeding.

The appellate court reversed. While acknowledging that plaintiff’s suit included a validation action, the court found that the suit also could fairly be read to include a taxpayer action challenging illegal expenditure of public funds. The court rejected the District’s argument that a validation action was the appropriate and exclusive method of challenging the validity of the school construction contract. The court reasoned that the validation statutes apply only to contracts “involving financing and financial obligations.” Here, the court pointed out, it had concluded in Davis 1 that the lease-leaseback agreement did not include any financing component, but rather contemplated that the District would pay for the school as it was completed. Indeed, that was a principal basis for the court’s conclusion that the lease-leaseback arrangement did not exempt the transaction from the public bidding laws.

Because the challenge was not subject to the validation statutes and because disgorgement of funds qualified as effective relief despite the completion of the school, the taxpayer’s action portion of the lawsuit was not moot and the trial court erred in dismissing the case on that ground.

The court of appeal held that a vesting tentative map covering property within the Coastal Zone gave the developer the vested right to proceed with the project notwithstanding subsequent changes in local laws. While the project’s location in the Coastal Zone rendered it subject to Coastal Commission jurisdiction, this did not impair the enforceability of vested rights against the City. Redondo Beach Waterfront, LLC v. City of Redondo Beach, 51 Cal. App. 5th 982 (2020).

A developer submitted applications for a project on the City’s waterfront, including an application for a vesting tentative map, which was deemed complete by the City on June 23, 2016. The City Council approved the project entitlements in October 2016 and subsequently executed a lease agreement with the developer for the City-controlled parcels in the project area.

Five days after the developer’s vesting tentative map application was deemed complete, neighbors submitted to the City a “Notice of Intent to Circulate Petition.”  That notice began the process of placing an initiative — the King Harbor Coastal Access, Revitalization, and Enhancement Act, known as Measure C — on the ballot.  Measure C included new, stricter waterfront development standards and development caps.  Measure C was adopted by the voters in March 2017.

The City notified Developer that the passage of Measure C would interfere with certain of the City’s obligations under its lease agreement with Developer.  The City invoked the force majeure clause and later terminated the agreement.

The developer challenged Measure C on several grounds, including that it could not be applied by the City to the project because Developer’s rights had vested prior to passage of Measure C. The Subdivision Map Act provides that when a local agency approves or conditionally approves a vesting tentative map, that approval shall confer a vested right “to proceed with development in substantial compliance with the ordinances, policies, and standards” in effect at the date the local agency has determined that the application is complete.  Gov’t Code §§ 66498.1(b), 66474.2.

Project opponents intervened in the suit and argued that the vesting provisions of the Map Act do not apply to development within the Coastal Zone because the local agency’s decision-making is subject to review by the Coastal Commission.  They asserted that the Coastal Act exclusively regulates local agency actions in the Coastal Zone and supersedes the vesting provisions of Government Code section 66498.1.

The court of appeal rejected the opponents’ arguments, noting they “conflated a local agency’s enforcement of local ordinances and policies, which is subject to the vested rights provided under section 66498.1(b), with a developer’s obligations to comply with state and federal laws and policies, which is not.”  The Coastal Act’s provision for oversight of local land use decisions “does not invalidate section 66498.1(b) — the statutes simply coexist.”  Developer remained subject to the Coastal Act and the jurisdiction of the Coastal Commission, but the issue in this case was whether the City’s approval of the vesting tentative map bound the City.  The court held that it did.

The court also rejected the opponents’ argument that the developer’s claims were not ripe. The court found it plain that there was an actual controversy because the City indicated it believed Measure C would impact some of the City’s obligations under its lease agreement with Developer. The court held this conclusion was “necessarily in conflict with, and to the detriment of, the Developer’s statutory vested rights.”  The court also rejected claims that the matter was unripe because the Coastal Commission had not yet certified Measure C’s amendments to the local coastal program or determined whether it would apply Measure C when reviewing the City’s issuance of a coastal development permit for the project.  The court noted that its decision did not address Measure C’s applicability to future Commission proceedings.  Rather, the decision was limited to the question of Developer’s right to proceed with the project vested as against the City.

In a widely watched case, the Sacramento Superior Court court ruled that insects are not eligible for listing under the California Endangered Species Act. Almond Alliance of California v. California Department of Fish and Wildlife, Sacramento Superior Court No. 34-2019-80003216 (Nov. 13, 2020).

CESA defines “endangered species” as a “native species or subspecies of a bird, mammal, fish, amphibian, reptile or plant which is in serious danger of becoming instinct.”  Fish & Game Code § 2062.  In October 2018, a group of non-profit organizations petitioned the California Fish & Game Commission to list four species of bumble bees as endangered under the CESA.  In June 2019, the Commission accepted the petition and the bumble bees accordingly became “candidate” species pending the Commission’s decision on whether to formally list them as endangered.  A coalition of farming groups sued, claiming that insects are not covered by the CESA definition of a “species” and that the bumble bees were therefore ineligible for listing.

The superior court agreed with the farming groups based on straightforward principles of statutory interpretation.  The Commission argued that insects are covered by CESA, on the grounds that the Fish & Game Code defines “fish” to include “invertebrates” and that bumble bees and other insects are “invertebrates.”  The court reasoned that while the definition of “fish” included “invertebrates connected to a marine environment” (such as shellfish and crustaceans), it did not encompass “insects such as bumble bees.”  The court rejected the “counterintuitive mental leap” that would be “required to conclude that bumble bees may be protected as fish.”

The court also pointed to a statement in the CESA legislative history indicating that— unlike the federal Endangered Species Act, which explicitly covers terrestrial invertebrates—the California statute was drafted to exclude such invertebrates from eligibility.  The court further cited a 1998 California Attorney General opinion concluding that CESA did not apply to insects. While Attorney General opinions are not binding, they are entitled to “great weight,” especially in the absence of clear case law authority.  The court concluded: “Combined with CESA’s legislative history, the Attorney General’s opinion makes a very strong case that the Commission was not authorized to list bumble bees.”

In addition, the court declined to defer to the Commission’s scientific expertise and its longstanding position that is has the authority to list insects under CESA.  The court noted that the Commission only attempted once before to list an inspect species, under CESA’s predecessor statute, and that the Office of Administrative Law rejected the listing as unauthorized.  More broadly, the court observed:  “Because the Commission’s opinion of its authority under CESA is at odds with the Legislature’s, the Commission’s expertise does not command the deference sought.”

The court also addressed a 1988 statutory amendment subsequent to CESA’s enactment that provides for civil liability for unlawful actions related to “any plants, insects or species listed” under CESA.  Fish & Game Code § 2582(a)(2).  The court reasoned that this amendment did not purport to confer authority to list any particular species under CESA; that, at most, the reference to insects in the amendment merely reflected the Legislature’s view at the time of the extent of CESA’s coverage; and that this later view of CESA’s meaning was not the “proper construction” given the clear statutory text and the contemporaneous legislative intent behind CESA’s initial enactment.  The court explained: “Put another way, to the extent the Legislature that enacted Section 2582 was interpreting CESA, which is far from clear, because that interpretation was incorrect, the court does not adopt it.”

Lastly, the court rejected the Commission’s claim that CESA should be interpreted broadly to effectuate CESA’s purposes.  The court concluded that “the absence of authority to list insects under CESA, either as fish or otherwise, is clear.  As a result, CESA’s purposes do not confer authority that the Legislature withheld.”

The superior court’s ruling will likely not be the final word in the matter.  An appeal is expected, and it also possible that the Legislature will revisit the statutory text to change CESA’s definition of “species” eligible for listing.

On remand from the California Supreme Court’s decision in Sierra Club v. County of Fresno, 6 Cal.5th 502 (2018) (“Friant Ranch I”), a court of appeal has held that CEQA requires full decertification – not partial decertification – of an EIR that has been adjudged inadequate in any respect. In addition, the court concluded that even if partial decertification were ever allowed, here the EIR’s defects could not be severed from the County’s project approvals, so decertification of the entire EIR was required. Sierra Club v. County of Fresno, No. F079904 (5th Dist., Nov. 24, 2020) (“Friant Ranch II”).

In Friant Ranch I, the California Supreme Court ruled that an EIR’s analysis of air quality impacts and its characterization of the effectiveness of mitigation for those impacts were defective. When the case was remanded to the lower courts, the project proponent argued that the EIR should be decertified only as to the defects the Supreme Court identified and should otherwise remain certified.

In Friant Ranch II, the court of appeal, following its own precedent and rejecting contrary precedent from other courts, held that because CEQA requires certification of an EIR that is “complete,” partial decertification of an EIR is never permitted.

The court also considered, however, the factors other courts have analyzed when considering partial decertification of an EIR. These focus on whether the EIR’s defects are severable from the decisions or activities the project proponent seeks to preserve while the EIR’s defects are being corrected. Here, the court ruled that the EIR’s defects were not severable because the County relied on its defective air quality analysis in making the statement of overriding considerations that supported approval of the project.

Finally, the court concluded that even with decertification of the entire EIR, the project proponent would not be forced to relitigate the adequacy of sections of the EIR other than its air quality analysis. Instead, the project proponent would be protected from new challenges to the EIR’s other analyses by principles of res judicata and collateral estoppel, and the requirement for exhaustion of administrative remedies.

Friant Ranch II demonstrates that some courts of appeal continue to reject the concept of partial decertification of an EIR. In taking this view, the court did not explain how any part of a project subject to CEQA could proceed – as section 21168.9 of the statute clearly allows under specified circumstances – if the entire EIR upon which the project depends must be decertified.  Nor did the court explain why the language in section 21168.9 which states that a court may order that “any”  determination, finding, or decision found to violate CEQA be voided  “in whole or in part” does not provide the answer. .

An anti-SLAPP motion was properly denied because the claims for damages arose from breach of contract and tort actions, not from any protected First Amendment activity.  Oakland Bulk and Oversized Terminal, LLC v City of Oakland, 54 Cal.App.5th 738 (2020).

This case arose from an ongoing dispute between the City of Oakland and Oakland Bulk and Oversized Terminal, LLC (OBOT) regarding the conversion of the former Oakland Army Base to a bulk commodity shipping terminal. (Our report regarding an earlier federal court ruling enjoining the City from enforcing a resolution prohibiting coal shipments through the terminal is available here.)

OBOT filed suit against the City alleging various causes of action for breach of contract and tort. The City filed an anti-SLAPP motion contending that some of the claims arose from protected speech in connection with a public issue.

The appellate court held that the anti-SLAPP motion lacked merit, noting that the SLAPP law is concerned with claims arising from acts in furtherance of a person’s constitutional rights of petition or free speech in connection with a public issue. Here, the court found, the City’s activity was not protected under SLAPP law. Plaintiffs’ claims arose out of the City’s alleged breach of its agreements with OBOT, its refusal to cooperate, its stonewalling, and its tortious conduct. The inclusion of the City’s speech-related activities in the complaint provided background and context — the evidence — to support the claims of the City’s wrongdoing but were not the gravamen of the causes of action. The communications that led to and followed the alleged misconduct were merely incidental to the asserted claims and hence not protected under the SLAPP law.

A school district may impose reasonable school impact fees based on the general type of development, regardless of whether the specific subtype of development will or will not generate new students. AMCAL Chico, LLC v. Chico Unified School District, No. C08700 (3rd Dist., Nov. 5, 2020).

AMCAL constructed a private dormitory complex intended to house unmarried college students. The 173-unit project, which was unaffiliated with the nearby state university, contained over 600 beds. AMCAL planned to lease by the bed with the requirement that all renters be at least 18 years old and enrolled in a degree program. The project was zoned as “medium high density residential” and located within the Chico Unified School District.

The District assessed school impact fees pursuant to Education Code section 17620, which allows public school districts to levy a fee against new residential developments to accommodate a likely increase in students from the development. AMCAL paid the fee under protest and filed suit claiming that its project was “a separate class of residential development” that would not generate District students.

The court rejected AMCAL’s claim that a school district must make an individualized determination of the impact of each particular project. The court held that, under the Mitigation Fee Act, the District only needed to consider the general type of development—such as residential construction—not the intended purpose or use of the development, when assessing school impact fees. In this case, the school impact fee determined by the District’s fee study was reasonably related to the impacts of new residential construction on the school district’s school facilities and therefore met the requirements of the Mitigation Fee Act.

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 first published decision on the use of purchased offset credits to mitigate GHG emissions. The court concluded the mitigation measure was inadequate because it did not ensure that offset credits would result in emissions reductions that would be genuine, quantifiable, additional and verifiable. It also faulted the measure because it gave the County planning director authority to approve a project’s use of particular offset credits without providing clear, objective standards to guide those determinations.

Background.

The Golden Door case arose from San Diego County’s approval of a climate action plan along with guidelines for determining the significance of greenhouse gas impacts. The key issue in the case was whether a GHG mitigation measure in the SEIR for the climate action plan complied with CEQA. That measure, GHG-1, was designed to mitigate the GHG impacts of pending projects requiring general plan amendments which had not been included in the climate action plan’s emissions inventory.  Measure GHG-1 required that those projects mitigate GHG impacts through onsite design features and, if those onsite reductions were not sufficient to provide full mitigation, they could use offsite mitigation, including purchasing GHG offset credits. The measure allowed identification of the specific offset credits to be used for a project to be deferred until after the project was approved and gave the County planning director discretion to determine the acceptability of the proposed offset credit program.

Mitigation measure GHG-1 found legally inadequate.

The CEQA Guidelines allow the details of a mitigation measure to be fleshed out after a project is approved when it is impractical or infeasible to specify the details during the environmental review process if the agency adopts specific performance standards for mitigation and also identifies the types of actions that can feasibly achieve that standard. The question for the court was whether the standards in GHG-1 were sufficient to ensure that offset credits approved by the County would be effective.

The County asserted that GHG-1 provides for effective mitigation because it mirrors California’s AB 32 compliant cap and trade program, which is designed to ensure that offset credits are real, additional, quantifiable, permanent, verifiable, and enforceable. The court found, however, that GHG-1 was significantly different from the AB 32 compliant cap and trade program in several critical respects.  First, GHG-1 required that offset credits be purchased from California Air Resources Board-approved offset project registries, but it did not require that offset projects use CARB-approved protocols which ensure offset credits accurately and reliably represent actual emissions reductions.

The court also concluded that offsets generated outside California, which might qualify as mitigation under GHG-1, might not be genuine, verifiable and enforceable.  Equally important, the court found that GHG-1 did not incorporate the requirement that offsets used to satisfy cap and trade requirements be additional to any greenhouse gas emission reduction that would otherwise be required by law.

Finally, the court ruled that GHG-1 was deficient because it did not specify an objective performance standard, but rather left it to the planning director’s unhampered discretion to determine whether particular offsets would be sufficient to achieve the measure’s mitigation goals — no net increase in emissions in comparison with projections for the general plan update, or net zero GHG emissions.

The court’s discussion of adequate GHG mitigation measures. 

It is notable that, while not central to its decision, the court indicated support for one of the Climate Action Plan’s measures under which the County may make “direct investments in local projects to offset carbon emissions.”  A direct investment project is created when the County takes a specific action that reduces, avoids or sequesters GHG emissions, such as weatherization and tree planting projects.  Direct investment projects must (1) comply with protocols approved by the California Air Resources Board, the California Air Pollution Control Officers Association or the San Diego County Air Pollution Control District which received public review prior to adoption; and (2) yield GHG reductions that are additional to reductions that would not otherwise occur.  In addition, an independent, qualified third-party must verify the GHG reduction achieved.

Similarly, the court appeared to endorse the approach taken by the Newhall Ranch Resource Management and Development Plan, approved by the Department of Fish & Wildlife.  That plan listed specific GHG reduction measures that must be implemented within the project itself; identified prototypical offsite direct reduction and sequestration activities the developer would implement; and required that any reduction or elimination of emissions be additional.  While the Newhall Plan also allowed some use of purchased offset credits, the plan required at least 68 percent of the reductions be achieved in California and at least 80 percent be achieved in the United States.  The Plan further required that if the lead agency determined offsets to be noncompliant with performance standards, permitting for the project would be suspended until the standards are met.

The contrast between the measure that the court rejected and the measures that the court cited with approval may provide useful guidance to practitioners and project proponents exploring ways to reduce GHG emissions in a manner that will pass legal muster.

Read a detailed legal analysis of the court’s discussion of issues relating to greenhouse gas emissions.