State high court decision may complicate CEQA process

The California Supreme Court's latest California Environmental Quality Act decision ushers in two critical rulings affecting land use and environmental law.

Center for Biological Diversity v. California Department of Fish and Wildlife, S217763, arose from a dispute about an environmental impact report prepared for the Newhall Ranch master-planned community in northern Los Angeles County. The EIR was prepared by the California Department of Fish and Wildlife, together with an environmental impact statement prepared by the U.S. Army Corps of Engineers.

The decision, announced Nov. 30, could make the CEQA process, and the analysis of greenhouse gas emissions in CEQA documents, substantially more complicated. However, the Supreme Court provided at least one "safe harbor" for evaluating project-level GHG emissions under CEQA. It upheld a finding of significant GHG emissions related to the project by comparing those emissions to the reductions from "business-as-usual" emission levels necessary to reduce emissions to 1990 levels by 2020 - as required by Assembly Bill 32, California's Global Warming Solutions Act.

This comparison is based on a climate plan released by the California Air Resources Board in 2008, which said "[r]educing greenhouse gas emissions to 1990 levels means cutting approximately 30 percent from business-as-usual emission levels projected for 2020, or about 15 percent from today's levels." The court said ensuring statewide consistency with meeting AB 32's goals is a permissible criterion for evaluating project emissions. According to the court, the critical question "is the cumulative significance of a project's greenhouse gas emissions, and from a climate change point of view it does not matter where in the state those emissions are produced."

But the Supreme Court then held that the EIR did not adequately substantiate its conclusion that the project's cumulative impacts would not be significant. The EIR reached this determination based on an anticipated 31 percent reduction against business as usual, compared to a statewide target of 29 percent. The court said "the EIR's deficiency stems from taking a quantitative comparison method developed by the [plan] as a measure of the greenhouse gas reduction effort required by the state as a whole, and attempting to use that method, without adjustments, for a purpose very different from its original design" - measuring the impacts of a specific project in a specific location.

The challenge now is that an EIR must support, through "substantial evidence," a reasoned and analytical comparison of the statewide emission reduction standards to be applied to a specific land use at a specific location, and how the project-level GHG emissions achieve to those standards. How that will be done is unclear, and will undoubtedly be the subject of future debate.

Analyses will vary depending on the type of project and some form of equivalency analysis of the statewide standards to the project location. Of course, it is difficult to say how best to quantify and analyze project-level emissions and to correlate those to statewide mandates and standards. While faulting the EIR here, the majority seems to have engaged in an independent weighing of the evidence the agency relied on, and did not articulate a legal standard. In fact, in a concurring and dissenting opinion, Justice Carol Corrigan observes that "the level of detail the majority demands from this EIR is contrary to both our deferential standard of review and our approval of the methodology used to assess greenhouse gas significance." She says this could result in CEQA compliance becoming a "moving target, impossible to satisfy."

Still, the Supreme Court did offer a roadmap of sorts for applying the business-as-usual methodology. First, lead agencies can use the methodology if they also determine what reduction a particular project must achieve to comply with statewide goals. Second, project design features that comply with regulations to reduce emissions may demonstrate that those components of emissions are less than significant (but the court cautioned that energy-efficient buildings would not be a basis for finding that transportation emissions are less than significant). Lead agencies could also demonstrate compliance with locally adopted climate plans, or could apply specific thresholds developed by local agencies. With many questions left unanswered, however, lead agencies and project applicants should proceed with care since the decision left many questions unanswered.

A second portion of last month's ruling expanded the regulatory hurdles a project with fully protected species habitat must address. The species at issue was the unarmored threespine stickleback, a small fish. With a few exceptions, California's Fish and Game Code says a fully protected fish cannot be "taken or possessed at any time." "Take" means "hunt, pursue, catch, capture, or kill," or to attempt those activities. Project mitigation measures allowed the U.S. Fish and Wildlife Service to temporarily collect and relocate stickleback if necessary to prevent harm during construction.

The California Department of Fish and Wildlife said this was not a "take," and that it was consistent with the law. But the majority disagreed, holding the "capture and relocation" authorized by the mitigation measures was a "take." It reasoned that because the research exception specifically states that research does not include CEQA mitigation measures, such measures must constitute a "take."

Justice Ming Chin, in a dissenting opinion, said the majority's interpretation failed to harmonize the definition of "take" with the code's definition of "conservation," which uses "take," "live trapping," and "transplantation" in the same sentence, suggesting those terms have different meanings. The fully protected bird provision similarly uses both "taking" and "live capture and relocation," again supporting an interpretation of "take" that excludes "live capture and relocation" to prevent harm.

While Chin's interpretation seems to better harmonize the different sections of the Fish and Game Code, all of which rely on the same definition of "take," the majority's definition is now law. Based on the majority's holding, for projects proposed to be constructed on land with fully protected species, there likely will be increased interest in exploring creative avoidance measures as well as the exceptions to the fully protected species statutes' prohibition on taking.