Environment

In a major land use case that reached the state Supreme Court in an era of climate change, lawyers at the Center for Biological Diversity persuaded the justices to reverse an appellate panel and reject state officials' approval of a new city project on the Los Angeles outskirts.

The high court's 5-2 majority reflected the concerns of environmentalists that the state's wildlife agency failed to consider sufficiently harms that would flow from the project's greenhouse gas emissions, violating the California Environmental Quality Act.

It was a setback for Newhall Land and Farming Co., which hoped to develop unused ranchland on the Santa Ana River north of Valencia into a 58,000-person city called Newhall Ranch, complete with 20,000 homes, 5.5 million square feet of commercial space, schools, a golf course and parks. The Department of Fish and Wildlife greenlighted the plan and the 2nd District Court of Appeal gave its OK.

Senior Counsel John T. Buse and colleagues at the biological diversity center - working with Sean B. Hecht of UCLA School of Law's climate change institute, pro bono partners at Chatten-Brown & Carstens LLP and Jason A. Weiner of the Wishtoyo Chumash Foundation - had a different approach.

"We have specialized in incorporating climate change impacts into the environmental review routine," Buse said. "Developers don't like it, but in general we've succeeded in persuading courts that greenhouse gas emissions have an environmental impact like any other."

Mark J. Dillon of Gatzke Dillon & Ballance LLP represented Newhall. Tina A. Thomas of Thomas Law Group represented the Department of Fish and Wildlife. Center for Biological Diversity v. Department of Fish and Wildlife. 2015 DJDAR 12754.

In the Newhall Ranch project, Buse said, "We found a very large end run around CEQA requirements. The developer acknowledged the project would be a big permanent contributor of greenhouse gases. It wasn't on the scale of a coal-fired power plant, but it was very large, and they downplayed it and called it insignificant."

The justices ruled that the agency failed to show evidence to support its conclusion that the project would not emit a significant amount of greenhouse gasses. CEQA calls for developers in such cases to take all feasible steps to reduce those emissions.

"We felt we could take on the idea that massive new impacts could be called insignificant," Buse said. "If our state government has set us on a course to dramatically cut greenhouse gases, we can't be having new developments without any attempt to avoid and reduce those impacts."

The wildlife agency used a "business as usual" method to gauge whether emissions are great enough to trigger CEQA mitigation rules. The high court rejected the environmentalists' argument that such a method is always invalid, but held that in the Newhall case there was no explanation for why it made sense to use the statewide emission reduction goal as the sole comparison to the development's carbon footprint. The court has now clarified that it will be difficult for future developers to ignore real emissions and instead rely on a comparison to a theoretical baseline, Buse said.

Although the high court issued its decision late last year, on Nov. 30, there has already been fallout. Two other cases in which other government authorities approved the Newhall plan, including one by Los Angeles County, remain on hold while officials digest the opinion. "We expect a good outcome there," Buse said.

And he pointed to two other large developments in advanced planning stages, including the Tapestry Project in San Bernardino County and Lilac Hills near San Diego.

"Both are legally vulnerable following the Newhall opinion," Buse said. "In fact, any large project is now going to be looked at in Newhall's light for guidance."