California Supreme Court Overturns Environmental Impact Report Related to Proposed Residential Development

In a much-anticipated decision, Center for Biological Diversity v. California Department of Fish and Wildlife, the California Supreme Court overturned an environmental impact report related to the proposed Newhall Ranch residential development, taking issue with its greenhouse gas emissions analysis and with its mitigation measures regarding protected fish species.

The EIR’s threshold of significance considered whether project emissions would be 29 percent or more below “business-as-usual” (i.e. no conservation or regulatory efforts) statewide emissions estimated in the California Air Resources Board’s Scoping Plan, a Plan developed to determine how to achieve the GHG reduction mandates in 2008’s AB 32. The Court upheld this approach, opining that “evaluating the significance of a residential or mixed-use project’s [GHG] emissions by their effect on the state’s efforts to meet its long-term goals makes at least as much sense as measuring them against an absolute numerical threshold.” The Court rejected appellant’s argument that the EIR was improperly considering a hypothetical baseline when it compared project’s emissions to a “business-as-usual” estimate, holding that the “business-as-usual emissions model is used here as a comparative tool for evaluating efficiency and conservation efforts, not as a significance baseline.”

Having upheld the threshold of significance, the Court still found that the GHG analysis violated CEQA. It criticized the EIR for relying on a quantitative comparison of the Scoping Plan’s statewide population and economic analysis, without considering making any adjustments for the specific nature of the project and relative population densities. The Court also noted that, even if a project is found to meet statewide efficiency and conservation standards, this would not be evidence that its transportation-related GHG emissions are less than significant. “Transportation emissions are affected by the location and density of residential and commercial development,” and “the Scoping Plan does not propose statewide regulation of land use planning.” Rather, the Court observed, such power is vested with local governments. As a result, it held that local governments will “bear the primary burden of evaluating a land use project’s impact on [GHG] emissions.”

The Court also considered the adequacy of mitigation measures providing for the collection and relocation of special status fish protected under the California Fish and Game Code. Appellant’s argued these measures violated Fish and Game Code Section 5515’s prohibition on authorizing the taking or possession of fully protected fish in mitigation of project impacts under CEQA. The Court agreed, holding that Section 5515 expressly prohibits such a taking as a mitigation measure under CEQA, and found the measures violated CEQA.

This case will undoubtedly have significant implications for future projects. As a result of this case, public agencies and project proponents will need to work closely with legal counsel to ensure their CEQA documents comply with the Court’s new requirements.