California Court of Appeal Overturns Specific Plan EIR for Inadequate Air Quality Impact Mitigation

by Latham & Watkins LLP
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CEQA Case Report: Understanding the Judicial Landscape for Development[I]

In an unpublished opinion issued July 10, 2018, Sierra Club v. County of Kern, Case No. F071133, the California Court of Appeal reversed the trial court’s decision and remanded for the issuance of a new writ of mandate directing the County of Kern (County) to address the improper deferral of mitigation measures for air quality impacts in the Kern River Valley Specific Plan’s (Specific Plan) Environmental Impact Report (EIR). In summary, the court determined:

  • The EIR’s analysis of the long-term significance of the Specific Plan’s greenhouse gas emissions was adequate at its time of release in 2011.
  • The EIR’s approach to mitigating greenhouse gas emissions was not a prejudicial abuse of discretion.
  • CEQA does not require greater than a 1:1 mitigation ratio for the amount of farmland to be placed under an agricultural conservation easement or similar program.
  • County violated CEQA by deferring the formulation of air quality mitigation measures without firmly committing to specific performance standards.

In response to the Specific Plan and related EIR, Sierra Club (Petitioner) filed a petition for peremptory writ of mandate and complaint for declaratory and injunctive relief. The trial court denied the petition. On appeal, Petitioner argued that the County violated CEQA by:

  • Inadequately analyzing the long-term significance of the project’s greenhouse gas emissions
  • Inadequately mitigating the project’s climate change impacts
  • Inadequately mitigating impacts to agricultural resources
  • Deferring the formulation of mitigation measures for air quality impacts

Background for Appeal

The County drafted the Specific Plan to guide future development of 110,510 acres in northeastern Kern County. In 2011, after the County certified the final EIR, Petitioner filed suit, claiming:

  • The EIR used an inappropriate threshold for assessing the significance of impacts on climate change.
  • The climate change mitigation scheme violated CEQA.
  • The 1:1 mitigation for conversion of farmland was legally inadequate.
  • County failed to adequately respond to comments.
  • The EIR failed to identify mitigation measures for impacts on air quality.

The trial court denied Petitioner’s writ of mandate, and Petitioner appealed. The appellate court stayed the proceeding pending the California Supreme Court decision in a CEQA case on greenhouse gas emissions: Cleveland National Forest Foundation v. San Diego Assn. of Governments, 3 Cal. 5th 497 (2017) (CNFF). The appellate court lifted the stay after CNFF became final.

EIR Need Only Consider and Discuss State Greenhouse Gas Emission Reduction Targets

Petitioner argued that the EIR failed to comply with CEQA because it did not correctly set the Specific Plan’s thresholds of significance for greenhouse gas emissions, and failed to provide a legally adequate analysis and discussion of the significance of Specific Plan’s impact on climate change in light of the state’s 2050 reduction targets. The court disagreed, finding that substantial evidence supported the County’s decision because the County considered how the California Air Resources Board (CARB) and regional air pollution control districts set their thresholds of significance for greenhouse gas emissions. Therefore, the County did not abuse its discretion in setting a threshold of 29% reduction from business as usual.

The appellate court also held that the County adequately analyzed and discussed its threshold. The court cited CNFF for the proposition that a lead agency does not abuse its discretion if it “sufficiently inform[s] the public, based on information available at the time, about the regional plan’s greenhouse gas impacts and its potential inconsistency with state climate change goals.” Because the County’s EIR relied on qualitative thresholds tailored to scientific knowledge and regulatory schemes, and because the EIR explained that it rejected the 2050 target based on the uncertainty of the legislature’s future standards, the court rejected Petitioner’s argument that the EIR’s discussion and analysis were inadequate.

County Did Not Refuse to Consider Greenhouse Gas Emission Mitigation Measures

Petitioner contended that the EIR’s mitigation scheme violated CEQA because the County arbitrarily decided to exempt an unknown number of “smaller” projects from implementing climate change mitigation measures. The court disagreed, finding that the Specific Plan included multiple implementation measures related to greenhouse gases, and mandated the planning and community departments to determine the necessity of an Air Quality Impact Analysis. Further, the EIR stated that smaller proposed developments were subject to case-by-case review of mitigation measures to address greenhouse gas emissions.

The appellate court also rejected Petitioner’s argument that the County failed to analyze the Specific Plan’s consistency with Assembly Bill 32’s (AB 32’s) reduction goals. Because Petitioner’s reply brief did not directly address County’s claim of waiver based on failure to raise the AB 32 argument in trial proceedings, Petitioner waived the claim. Finally, the court disagreed with Petitioner’s contention that the County refused to consider potentially feasible transportation mitigation measures, finding that the County considered land use goals, transit-oriented housing, and other strategies to reduce emissions.

CEQA Does Not Require a Mitigation Ratio Greater Than 1:1

Under the Specific Plan, land being converted from agricultural to other uses corresponded in a 1:1 ratio to the land subject to restrictions under the agricultural conservation easement. Petitioner claimed that this ratio violated CEQA because it was insufficient to address a significant indirect/growth-inducing impact. The court, however, held that “agricultural conservation easements are not a mitigation measure . . . required as a matter of law,” and, “if a ratio of 0:1 passes muster, then a ratio of 1:1 is not deficient.” Moreover, the Specific Plan, as a “program EIR,” was subject to less stringent requirements of particularity than specific construction projects. Therefore, CEQA did not compel the adoption of a higher mitigation ratio.

Deferred Formulation of Air Quality Mitigation Measures Violated CEQA

Petitioner argued that the EIR’s air quality mitigation scheme was inadequate because the County impermissibly deferred the formulation of air quality mitigation measures without adopting appropriate performance standards. The court agreed, holding that CEQA allows a lead agency to defer specifically articulating mitigation measures “as long as the lead agency commits itself to mitigation and to specific performance standards [emphasis in original].” The County did not satisfy this requirement, as the EIR did not recommend the adoption of any specific mitigation measures or performance standards to address significant operational emissions affecting air quality. Rather, the County only stated its commitment to devising mitigation measures for future development. The appellate court found this statement insufficient to satisfy CEQA, reasoning that requiring air quality impact mitigation to a “feasible” extent, and compliance with “air quality standards” were not commitments to specific performance standards. Therefore, the EIR improperly deferred the formulation of mitigation measures.

Disposition

Accordingly, the court reversed and remanded the trial court’s denial of Petitioner’s petition for writ of mandate, directing the trial court to enter a new order granting a writ of mandate addressing the improper deferral of air quality impact mitigation measures. Furthermore, the court held that Petitioner was entitled to recover 25% of its costs on appeal.

  • Opinion by Justice Donald R. Franson Jr., with Justice Rosendo Pena Jr., and Justice Bruce M. Smith, concurring.
  • Trial Court: Superior Court of Kern County, Case No. CV-274340, Judge Kenneth Twisselman II.

[i] California court decisions on California Environmental Quality Act (CEQA) related cases can impact business not only in California, but more broadly in other US jurisdictions (e.g., under the US National Environmental Policy Act (NEPA), though statutory provisions may differ). Latham’s case summary series provides a comprehensive archive of both published and unpublished cases, in order to track judicial interpretations of CEQA and new legal developments. Unpublished or “non-citable” opinions are opinions that are not certified for publication in Official Reports and generally may not be cited or relied on by other courts or parties in any filing with California courts in other court proceedings. (see California Rules of Court, rule 8.1115).

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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