Category: GDB Insights

WildEarth Guardians v. United States Department of Agriculture Animal and Plant Health Inspection Service Wildlife Services
(9th Cir., Apr. 21, 2025, No. 23-2944)

Introduction

The Ninth Circuit Court of Appeals has vacated an Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) issued by the U.S. Department of Agriculture (USDA), concluding that the agency’s approval of a predator damage management (PDM) program in Nevada’s Wilderness Areas and Wilderness Study Areas violated the National Environmental Policy Act (NEPA). The court held that the EA failed to adequately address localized environmental impacts, public health and safety risks, effects on sensitive lands, and scientific uncertainty surrounding lethal predator control.

Background

Wilderness Areas and Wilderness Study Areas are federally-owned lands designated by Congress to preserve their natural and undeveloped character. Grazing activities lawfully established before application of the wilderness designation are permitted to continue under federal law. PDM programs are services provided to protect privately-owned livestock from predation. Both non-lethal and lethal methods are used by USDA to manage various species.

Issues and Court’s Analysis

Wilderness Act Violation

Appellants argued that conducting PDM in Wilderness Areas violated the Wilderness Act and related statutes that designate Wilderness Areas in Nevada. The court rejected this argument relying on its prior decision in Forest Guardians v. APHIS, 309 F.3d 1141 (9th Cir. 2002), which held that the Wilderness Act’s grazing exception permits predator control as a supportive activity.

NEPA Violations

Under NEPA, agencies may first prepare an EA to determine if a proposed action requires a full Environmental Impact Statement (EIS). Agencies must evaluate both the “context” (local and broader impacts) and “intensity” (severity of effects) of the proposed action when assessing whether preparation of an EIS is warranted. Courts require agencies to provide a “convincing statement of reasons” if they decide not to prepare an EIS; conclusory claims are insufficient.

NEPA Violation – Localized Impacts

Appellants argued the EA was deficient because it “provide[d] only a broad-scale, generic analysis of possible effects of the statewide activities” and did not properly analyze potential localized impacts. The court agreed, finding the EA contained inconsistent and unclear descriptions of where PDM activities would occur. The court stated  “[b]y leaving the public guessing where [USDA] proposes to conduct PDM, the agency vitiated NEPA’s purpose because it deprived the public of the ability to evaluate the impacts of the agency’s proposed actions.” Additionally, the court found USDA “failed to adequately explain its decision not to analyze local impacts in addition to its statewide assessment.”

NEPA Violation – Intensity Factors

Appellants contended an EIS was required because the EA failed to adequately assess three key “intensity” factors: (1) public health and safety risks from lead shot and cyanide use; (2) impacts on unique and sensitive areas, specifically Wilderness Areas and Wilderness Study Areas; and (3) scientific studies that raised substantial uncertainty about the effectiveness of lethal predator control. The court agreed with Appellants on  all fronts. On the topic of public health and safety, the court observed that the EA failed to address whether the 600 pounds of lead ammunition anticipated to be used for PDM would result in a concentrated introduction of lead into the environment. Similarly, the court found USDA’s response to concerns about M-44 cyanide ejector devices inadequate, as the agency failed to meaningfully address documented incidents of serious injuries and pet deaths. With respect to impacts to unique areas, the court observed that “[a]ny impacts to nearby unique areas weigh in favor of ordering an EIS, regardless of the severity of the impact.” Finally, the court found that USDA failed to meet NEPA’s requirement to address scientific uncertainty by ignoring or inadequately responding to numerous recent peer-reviewed studies questioning the efficacy and risks of PDM. The court emphasized that a core NEPA obligation is to meaningfully engage with contrary scientific viewpoints, regardless of agency opposition or study location.

Conclusion

The court concluded the EA was deficient because it failed to adequately analyze key NEPA intensity factors and, along with inconsistencies in geographic scope and an unjustified statewide approach, did not demonstrate that USDA took the required hard look or sufficiently informed the public before issuing the FONSI. This case reinforces the need for detailed, transparent, and scientifically grounded NEPA analyses that consider broad and localized impacts and engage with scientific uncertainty.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

Cleveland National Forest Foundation et al. v. County of San Diego
(Cal. Ct App., March 27, 2025, No. D083555)

Introduction

The California Court of Appeal, Fourth Appellate District, has ruled that the County of San Diego’s adoption of two screening thresholds related to analysis of vehicle miles traveled (VMT) under the California Environmental Quality Act (CEQA) was not supported by substantial evidence. Specifically, the court held that the County’s Transportation Study Guide (TSG), which created exemptions from VMT analysis for certain projects, lacked substantial evidence and remanded the case with direction to determine whether other portions of the County’s TSG are severable and may continue to be applied. The decision underscores the obligation of lead agencies to support thresholds with localized, factual evidence demonstrating that exempted, or “screened out,” projects will not have significant environmental effects.

Factual Background

In 2013, the California Legislature passed Senate Bill 743 to shift CEQA’s method for evaluating transportation impacts away from traditional traffic delay metrics (e.g., level of service “LOS”) and toward VMT, measuring the amount and distance of automobile travel attributed to a project. In implementing this change, the Governor’s Office of Planning and Research (OPR) adopted revisions to the CEQA Guidelines and issued a Technical Advisory recommending specific VMT thresholds, including a 15 percent reduction benchmark and several screening criteria to identify projects unlikely to have significant impacts.

To implement these changes, the County of San Diego adopted its TSG, which included screening thresholds that exempted certain projects from detailed VMT analysis. At issue in the case were two of those screening thresholds: the infill threshold, which applied to projects proposed in designated infill village areas within the unincorporated county, and the small project threshold, which exempted projects expected to generate fewer than 110 automobile trips per day. The infill areas were designated based on housing and intersection density and job accessibility. The small project threshold mirrored OPR’s recommendation but was not based on any analysis specific to the County of San Diego.

Two environmental organizations filed a petition for writ of mandate challenging the County’s adoption of these screening thresholds, arguing that they lacked support in the administrative record and were inconsistent with CEQA. The trial court denied the petition, concluding that both thresholds were consistent with CEQA and supported by substantial evidence. Petitioners appealed.

Issues and Court’s Analysis

On appeal, the court considered whether the County’s screening thresholds complied with CEQA and whether substantial evidence supported the conclusion that projects falling within those categories would have less-than-significant VMT impacts.

The court rejected petitioners’ argument that CEQA mandates a quantitative threshold incorporating OPR’s 15 percent standard, explaining that CEQA permits agencies to adopt either qualitative or quantitative thresholds. However, the court emphasized that all thresholds, regardless of form, must be supported by substantial evidence showing that projects meeting the threshold criteria will not ordinarily result in significant impacts.

Turning to the two challenged screening thresholds, the court found that the County’s infill threshold lacked the necessary evidentiary support under CEQA. While the County assumed that infill development would generally result in lower VMT impacts, the court explained that assumptions alone are not enough. Citing its earlier Golden Door Properties, LLC v. County of San Diego (2018) 27 Cal.App.5th 892 decision, the court emphasized that agencies must show with evidence why a threshold makes sense for local conditions. In the words of the court, “the County was required to make some showing that development consistent with the adopted infill threshold will normally or likely result in an insignificant transportation effect.”

Here, the County did not base its infill threshold on actual VMT data, but rather “the general assumption that development in more dense areas, including infill development, does not significantly impact VMT.” The court was not persuaded by this premise and cautioned the County that it “is not enough to say that infill development is better than non-infill development.” The court also referred to the County’s own consultant-prepared maps showing that many of the designated infill and village areas had VMT levels at or above the County average. This record evidence directly contradicted the idea that development in those areas would have less-than-significant impacts.

In an effort to defend its approach, the County underscored its reliance on the California Air Pollution Control Officers Association’s Handbook for Analyzing Greenhouse Gas Emission Reductions, Assessing Climate Vulnerabilities, and Advancing Health and Equity (CAPCOA Handbook) as a source of substantial evidence. But, the court noted that the CAPCOA Handbook does not define infill the same way and, therefore, “is not helpful.”

Similarly, with respect to the small project threshold, although the County had adopted the 110 daily vehicle trip limit directly from OPR’s Technical Advisory, it did so without evaluating whether that limit was appropriate in the context of San Diego County. CEQA permits agencies to adopt another agency’s threshold only if it is supported by substantial evidence. In this case, the court found the County made no effort to determine whether projects generating fewer than 110 daily trips would in fact produce less-than-significant transportation impacts under local conditions. Because the County failed to show some analysis to justify applying statewide guidance to local projects, the court ruled that the threshold could not be upheld.

Conclusion

This decision is yet another that underscores the necessity of developing thresholds of significance that are supported by geographically tailored, local information and data. General suppositions and rules of thumb, even when conceptually endorsed by state agencies, will not suffice absent evidence affirming that their local application will, in fact, achieve the desired result – in this case, a less-than-significant VMT impact.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

Western States Petroleum Association v. California Air Resources Board
(Cal. Ct. App., Feb. 13, 2025, No. B327663)

Introduction

The California Court of Appeal’s decision in Western States Petroleum Association v. California Air Resources Board upheld the California Air Resources Board’s (CARB) “Control Measure for Ocean-Going Vessels At Berth” regulation (the “at berth regulation”), which aims to reduce harmful emissions from vessels docked at California ports. The court found that CARB acted within its regulatory authority, complied with the Administrative Procedure Act (APA), and provided a sufficient environmental assessment under the California Environmental Quality Act (CEQA). The decision emphasizes judicial deference to CARB’s technology-forcing regulations, supporting California’s ambitious air quality and climate change initiatives.

Background

The Western States Petroleum Association (WSPA) filed a verified petition for writ of mandate, injunctive relief, and declaratory relief against the California Air Resources Board (CARB). The lawsuit sought to invalidate CARB’s at berth regulation adopted in August 2020,  which targets emissions from vessels’ auxiliary engines & boilers and aims to reduce emissions of nitrogen oxides, particulate matter, diesel particulate matter, reactive organic gases & greenhouse gases. The regulation was designed to address public health risks and global warming, particularly benefiting disadvantaged communities near California ports. The regulation applies to container ships, refrigerated cargo vessels, passenger vessels, auto carriers, tankers, bulk carriers, and general cargo ships.

WSPA contended that CARB’s regulation was arbitrary and capricious because the technology required to meet the emissions standards was not feasible by the compliance deadlines of 2025 and 2027. They also argued that CARB violated the APA by failing to disclose an emissions report in a timely manner and that the environmental analysis under CEQA was inadequate.

Court’s Analysis and Holdings

Feasibility of Compliance With the Regulation

CARB’s quasi-legislative action of preparing and adopting the at berth regulation was considered an authentic form of lawmaking, thus judicial review was limited to ensuring the agency adequately considered all relevant factors and demonstrated a rational connection between those factors, the decision made, and the statutory purpose. The burden was on WSPA to demonstrate that CARB’s regulation lacked evidentiary support.

The court applied the “arbitrary and capricious” standard, emphasizing that agencies are allowed to make technology-forcing regulations as long as there is a reasonable basis for believing the technology can be developed by the compliance deadline.

The court noted that CARB conducted a feasibility analysis and consulted with technology manufacturers and marine emissions control experts, and that WSPA did not meet its burden to show that CARB’s determinations were arbitrary, capricious, or lacked evidentiary support. The court ultimately found CARB had sufficient evidence to support its determination that the necessary emissions control technology could be developed in time.

Compliance With APA

In considering CARB’s compliance with the APA, the court held that CARB substantially complied with the APA’s requirements to make relevant reports publicly available. CARB published the Notice of Proposed Action for the regulation in August 2018 and commissioned engineers at the University of California, Riverside, Bourns College of Engineering Center for Environmental Research and Technology (CE-CERT) in 2019 to conduct an emissions study. The CE-CERT report, dated March 2020, was made available to WSPA in early July 2020, before the end of the second public comment period, which ran from July 10 to July 27, 2020. WSPA participated in the comment period and raised concerns about the report’s findings.

The court found that while CARB may have violated Government Code section 11347.3 if the report was indeed delayed from March to July 2020, the at berth regulation was not automatically invalidated. CARB substantially complied with its APA obligations by making the report available before the comment period ended, allowing WSPA to fully participate in the process. The court noted that despite the rulemaking file exceeding 60,000 pages and the process spanning several years, the delay regarding the CE-CERT Report was the only alleged APA violation. The court concluded that any delay did not prevent WSPA from voicing its concerns, and CARB adequately considered and addressed those concerns in the final regulatory process.

Sufficiency of CARB’s Environmental Assessment

CARB’s Environmental Assessment (EA) sufficiently analyzed environmental impacts, safety hazards, and mitigation measures. The tiered approach utilized by CARB allowed them to conduct a broad analysis at the regulatory level while deferring detailed, site-specific assessments to the appropriate agencies once specific compliance projects were proposed. The court held that this method complied with the CEQA requirements, which allow tiering in large-scale planning approvals. The court emphasized that the program-level EA only needed to analyze environmental impacts and mitigation measures to the extent reasonably foreseeable, acknowledging that precise impacts could not be determined until individual projects were defined. The court agreed with CARB that no project-level analysis was required under CEQA and that CARB was not obligated to conduct safety studies for tanker terminals prior to implementing specific compliance responses.

Sufficiency of CARB’s Cumulative Impact Analysis

Finally, WSPA argued CARB failed to properly analyze the cumulative impacts of the regulation, particularly regarding the accelerated compliance timelines. The court found CARB’s use of the State Implementation Plan (SIP) EA’s projections met CEQA’s requirements, and that substantial evidence supported CARB’s methodology, which focused on a statewide perspective rather than individual industrial projects. Additionally, WSPA did not provide evidence that the SIP EA’s data was outdated or that circumstances had changed to undermine the analysis. The court upheld CARB’s cumulative impacts analysis, finding that it provided a “good faith and reasonable disclosure” of foreseeable cumulative impacts at a program-wide level.

Conclusion

The court affirmed the lower court’s ruling, demonstrating judicial deference to CARB’s regulatory authority. The decision reinforces CARB’s ability to implement ambitious emissions reduction measures under the California Clean Air Act and CEQA, even when such measures are forward-looking and dependent on emerging technologies.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

Working Families of Monterey County v. King City Planning Commission
(2024) (Case No. H051232)

California’s Sixth District Court of Appeal upheld the King City Planning Commission’s approval of a Grocery Outlet project, affirming its eligibility for an exemption under the California Environmental Quality Act (CEQA) Class 32 guidelines for infill development. The court rejected the appellants’ contentions that Class 32 exemption requires application of a population threshold and specific urbanized definitions. This case clarifies the scope of CEQA’s infill exemption and reinforces local discretion in land use determinations.

Background

In April 2021, Best Development Group (BDG) proposed a Grocery Outlet store in King City, filing for conditional use and related permits. The project site, previously used as a car sales lot, was located adjacent to Highway 101, surrounded by commercial properties, a cemetery, and public facilities.

The King City Planning Commission deemed the project exempt from CEQA under the Class 32 categorical exemption for infill development. The decision was affirmed by the King City Council after an appeal challenging the exemption’s applicability.

Working Families of Monterey County (Working Families) filed a writ of mandate alleging CEQA violations, contending that the exemption improperly applied due to King City’s rural character and the project’s insufficient environmental analysis.

Application of the Class 32 Exemption

Working Families argued that the City improperly applied the Class 32 exemption, contending the project did not meet the definition of an “urbanized area” as set forth in CEQA provisions requiring populations of 50,000 or 100,000, since King City’s population is only 13,332. They also asserted the project site failed to qualify as an “infill site” because it was not previously developed for “qualified urban uses.”

The City and BDG argued that the terms “qualified urban use,” “urbanized area,” and “infill site” are not part of the language of CEQA Guidelines section 15332, which governs the Class 32 exemption. They asserted that these terms appear in other CEQA provisions related to residential projects and cannot be read into section 15332, as their omission reflects the intended scope of the exemption.

They further contended that substantial evidence supported the City’s determination that the project site was “substantially surrounded by urban uses” under section 15332(b). Although the Guidelines do not define “urban uses,” they maintained that the City reasonably concluded, based on the environmental assessment, that the site was surrounded by urban development, including commercial buildings, a cemetery, the sheriff’s department, and a highway.

To determine whether the Class 32 categorical exemption for infill development applied to the Grocery Outlet project, the court analyzed the language of CEQA Guidelines section 15332. The court, applying traditional rules of statutory interpretation, emphasized that the plain language of regulations governs their interpretation unless ambiguity necessitates further analysis. In this case, the court found the language of section 15332 straightforward and declined to incorporate definitions from other CEQA provisions. The court noted that different terms used in various parts of CEQA suggest different meanings were intended, and the absence of specific definitions in section 15332 confirmed the regulators’ intent to apply the exemption broadly to appropriate projects.

To address the potentially ambiguous terms “in-fill development” and “substantially surrounded by urban uses” in section 15332, the court examined the intent of the Natural Resources Agency, which developed the regulation. During its drafting, the agency identified the primary purpose of the infill exemption as addressing urban sprawl. The exemption was designed to encourage development within existing urbanized areas, reduce reliance on vehicles, and preserve farmland, aligning with broader CEQA goals to mitigate environmental harm while supporting sustainable growth. The regulatory intent guided the court’s interpretation of section 15332, emphasizing its applicability to projects like the Grocery Outlet that fit within urban contexts, regardless of specific population thresholds.

Environmental Assessment Analysis

In addition to disputing the applicability of the Class 32 exemption, Working Families argued that the environmental assessment prepared for the project failed to adequately evaluate the impact of increased traffic on air quality, particularly the potential human health impacts to project users due to the project’s proximity to Interstate 101. The court declined to address this argument, underscoring that once a project qualifies for a categorical exemption under CEQA, it is not subject to further environmental review requirements, including the preparation of an environmental impact report.

Conclusion

The court’s decision in this case confirms that CEQA’s Class 32 exemption for infill development applies broadly without requiring the application of specific population thresholds or strict urbanized definitions. In doing so, this decision highlights the efficiency of the exemption process for appropriate infill projects and supports local agencies in making streamlined land use decisions.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

People of the State of California v. County of Lake
(2024) (Case No. A165677)

The People of the State of California v. County of Lake decision from the California Court of Appeal’s First Appellate District is the most recent reminder to lead agencies of CEQA’s key function to inform the public of a project’s environmental impacts and of the harsh consequence that follows if informing the public is not at the forefront during preparation of the project’s environmental analyses.

In this case, the Center for Biological Diversity and California Native Plant Society (petitioners) challenged the County of Lake’s approval of the Guenoc Valley Mixed-Use Planned Development Project (a luxury resort consisting of residential estate villas, hotel units, and related infrastructure, on 16,000 acres) and certification of the project’s environmental impact report (EIR).  The trial court agreed with petitioners’ claim that the EIR did not adequately inform the public of the project’s potential to exacerbate wildfire ignitions and rejected petitioners’ other claims.  On appeal, the court affirmed.

The majority of the published portion of the opinion is devoted to the court’s analysis of the County’s evaluation of the project’s wildfire ignition risk.  First, the court found that mention of the topic was included in the post-EIR analysis – in an errata to the final EIR, which was determined to be “too late” because “[m]aterial not contained in the EIR cannot be expected to be considered; and therefore, cannot be relied upon to support an adequate EIR.”

Second, the errata’s discussion of the impact cited a scientific study unrelated to the project and included a summary statement that “increased fire education, a decline in smoking, and modern vehicles . . . have reduced the impacts of anthropogenic causes of wildfire ignitions.”  The court held such discussion inadequate under CEQA because it failed to reasonably describe the “additional wildfire risk factors as compared to existing conditions” that the project would “introduce” to the area.

In the court’s view, the County provided no way to connect the dots between the “additional wildfire risk factors,” which the errata conceded exist, and the project’s Wildfire Plan prevention strategies (such as fire breaks and undergrounding power lines), which the errata did not update.  More specifically, the court found fault in the County’s failure to explain “the extent to which bringing in over 4,000 new residents … increases the risk of human-caused wildfire over the existing baseline risk,” and then posed a series of ignition-based questions for the County’s potential consideration.[1]  Because the County did not appear to “use its best efforts to find out and disclose all that it reasonably can” about the project’s impact on these ignition risk factors, as a remedy, the court directed the County to revise the EIR.

In good news for the County, the court rejected petitioners’ other challenges, one of which questioned the EIR’s inclusion of a carbon credit program to mitigate the project’s greenhouse gas impact.  While not relying on the carbon offset program to eliminate the project’s impacts, the County included a condition requiring the project applicant to purchase such credits to offset the difference between the mitigated project emissions and the relevant significance thresholds.  The court did not agree with petitioners that, by virtue of being in the EIR, the carbon credit program must meet CEQA’s standards for feasible mitigation measures because petitioners failed to cite authority for their contention that CEQA bars considering potentially beneficial measures that agencies deem too uncertain to be feasible.

Another rejected claim was the County’s alleged non-disclosure of the project’s potential use of an off-site well and the County’s failure to quantify the amount of groundwater the project would draw.  The court noted petitioners failed to acknowledge the EIR’s discussion of the off-site well production capacity and the groundwater basin concluded with the caveat “if required,” which the record revealed was exceedingly unlikely. As a result, it was appropriate for the County to terminate discussion of that impact since it was too speculative for evaluation.

Although unpublished, the court discussed petitioners’ remaining claims and held that (1) the EIR’s wildfire plan and biological resources analysis were not irreconcilably inconsistent; (2) the mitigation measure implementing a transportation management demand plan was not impermissibly deferred; and (3) the agency’s rejection of Alternative C was supported by required CEQA findings.

At the end of the day, while petitioners prevailed on only one of the six claims, the court vacated the project approval and EIR certification, and ordered the County to re-do the EIR’s wildfire ignition risk impact assessment, which is arguably a harsh but an all-too-common consequence for failing to adequately inform the public on a single project impact area under CEQA. As such, while the State CEQA Guidelines assure practitioners that “technical perfection” is not required in an EIR, this decision is yet another cautionary tale of the fine line for lead agencies to navigate between technical analysis and informational disclosure when evaluating project impacts under CEQA.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]

[1] The questions presented by the court pursue statistical data that – to date – has not been industry standard in the wildfire analysis arena.  E.g., the court inquired about the number of wildfire ignitions “per 1,000,000 miles driven by vehicles” with and without catalytic converters.  Yet, the court acknowledged that “[o]f course, we do not require” that the specific questions posed be answered.

Yolo Land & Water Defense v. County of Yolo
(Case No. C099086)

In the recently published Yolo Land & Water Defense v. County of Yolo decision, the California Court of Appeal, Third District, affirmed the right of the lead agency under CEQA, as the prevailing party, to recover reasonable costs associated with administrative record preparation even though petitioners had elected to prepare the record.

In the case, the applicant sought the County’s approval of the Teichert Shifler Mining and Reclamation project on a 320-acre parcel.  The County certified the final environmental impact report (EIR) for the project and approved a mining permit, which actions were challenged by Yolo Land & Water Defense and Sierra Club (petitioners).  The lower court denied the writ of mandate petition and petitioners’ motion to tax the County’s record preparation costs.

In the unpublished portion of the opinion, the Court rejected petitioners’ substantive challenges to the project EIR, thereby affirming the EIR’s use of an existing conditions baseline, the EIR’s analysis of the potential for an increase in methylmercury in the reclaimed lake, and the County’s conclusion that the project’s mitigation would reclaim mined land to a state that is equivalent in quality and capacity to existing prime farmland.  As the Court’s evaluation of these topics is unpublished, they will not be discussed further here.

In the published part of the decision, the Court discussed petitioners’ challenge to the County’s record preparation costs.  The Court first examined Public Resources Code section 21167.6, which authorizes a petitioner to elect to prepare the administrative record instead of asking the public agency to prepare it.  In this instance, petitioners elected to prepare the administrative record but asked the County – via a Public Records Act request – to produce the documents.  The County, in preparing and certifying the record (29,745 pages in length), incurred $3,813.45.  The Court then concluded that section 21167.6 does not provide that a public agency prevailing in a CEQA action may not recover reasonable costs associated with the preparation of the administrative record that were actually incurred.

That conclusion was buttressed by Code of Civil Procedure section 1032, which provides that – in general – a prevailing party is entitled to cost recovery, and Code of Civil Procedure section 1094.5, which provides that if an expense associated with preparation of the record has been borne by the prevailing party, the expense shall be recoverable as costs.  The fact that the County produced the records in response to a Public Records Act request did not convince the Court to disallow recovery of costs actually incurred in preparation of the administrative record.  Though unpublished, the Court also determined that petitioners failed to show that the County’s cost amount was unsupported or unreasonable.

The Yolo Land & Water Defense decision is a reminder, and a warning, to all CEQA petitioners that their CEQA lawsuits may have an additional cost to them – the cost of the lead agency’s record preparation efforts when the CEQA challenge is denied.  It is also a reminder to lead agencies to indeed seek recovery of those costs, which are often not inconsequential.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

Upland Community First v. City of Upland
(2024) (Case No. E078241)

California’s Fourth District Court of Appeal published its decision in Upland Community First v. City of Upland, a case addressing the City of Upland’s (City) approval of a warehouse/parcel delivery service building and corresponding mitigated negative declaration (MND) prepared pursuant to the California Environmental Quality Act (CEQA). The court upheld the MND, finding that its greenhouse gas (GHG) and transportation analyses were supported by substantial evidence.

Background

In April 2020, the City approved the project at issue: a 201,096-square foot warehouse/parcel delivery service building on a site currently used for a rock and gravel crushing operation. As the CEQA lead agency, the City adopted an MND for the project.

Upland Community First (UCF) filed a petition for writ of mandate, claiming the City violated CEQA because a fair argument could be made that the project would have significant impacts, thereby necessitating preparation of an environmental impact report (EIR).  The trial court granted UCF’s petition due to insufficient evidence supporting the City’s use of two GHG thresholds discussed below. Both UCF and the developer appealed the judgment.

Project GHG Analysis

The City’s GHG analysis used two numeric thresholds developed by the South Coast Air Quality Management District (SCAQMD). First, the draft MND applied the 10,000 metric tons of carbon dioxide equivalent (MT CO₂e) per year threshold adopted by SCAQMD for industrial projects. The draft MND concluded that the project would result in the net addition of 5,222 MT CO₂e per year and, therefore, be below the first threshold.

In response to comments that the 10,000 MT CO₂e per year threshold was too high, the City also prepared a supplemental GHG analysis that applied the 3,000 MT CO₂e per year threshold developed by SCAQMD for nonindustrial projects. That analysis reflected project refinements, including the incorporation of sustainability features, as well modifications to the baseline emissions estimate. The supplemental analysis concluded that the project would result in the net addition of 2,904 MT CO₂e per year and, therefore, be below the second threshold.[1]

Court of Appeal Analysis: Developer’s Appeal

Substantial Evidence Supported Use of the 3,000 MT CO₂e per Year Threshold

A lead agency has significant discretion in determining appropriate thresholds of significance under CEQA, as long as the choice is supported by substantial evidence. The CEQA Guidelines emphasize that environmental impact determinations must be based on scientific and factual data, and provides that agencies may consider thresholds recommended by other agencies or experts.

Here, the court found that substantial evidence supported the City’s use of the 3,000 MT CO₂e per year threshold for assessing the project’s GHG emissions. More specifically, public comments and other evidence from the Governor’s Office of Planning and Research (OPR) and SCAQMD provided a scientific and factual basis for applying the 3,000 MT CO₂e per year threshold to nonindustrial projects. The cited OPR data analyzed GHG emissions from 711 residential, commercial, and mixed-use projects, showing that 90% of these projects had emissions ranging from 2,983 to 3,143 MT CO₂e per year for residential/commercial projects, and varying ranges for other mixed-use categories. Based on this data, SCAQMD had identified a 3,000 MT CO₂e per year threshold for nonindustrial land use types, capturing the emissions levels of approximately 90% of such projects.

The court found that “it [is] reasonable to consider nonindustrial projects exceeding 3,000 threshold (ten percent of all nonindustrial projects) to be cumulatively considerable contributors to GHG emissions in comparison to nonindustrial projects with GHG emissions below the 3,000 threshold” (italics in original).[2] Therefore, the court held the City did not abuse its discretion in utilizing the 3,000 MT CO₂e per year threshold.

Increase in Baseline Emissions Supported by Substantial Evidence

The court found record evidence “plainly indicates” that the 1,537 MT CO₂e per year increase in the baseline emissions estimate was due to the 78 trucks used in the existing crushing operations, which were omitted in the original analysis but included in the supplemental analysis. The court concluded, therefore, that substantial evidence supported the City’s updated baseline.[3]

CEQA Findings Were Proper

The court held that the City’s resolution adopting the MND was supported by substantial evidence, including the supplemental GHG analysis’ demonstration that the project’s GHG emissions would not exceed the 3,000 MT CO₂e per year threshold. The court found UCF’s claim that the supplemental analysis lacked sufficient authority – because it was prepared “for informational purposes only” – unpersuasive, as the supplemental analysis and overall record adequately supported the City’s determination.

No Fair Argument of a Significant GHG Impact

After concluding that substantial evidence supported use of the 3,000 MT CO₂e per year threshold, the court emphasized that its acceptance of the threshold did not preclude consideration of other evidence of impact. That is because, under CEQA, if substantial evidence supports a “fair argument” that a project may have significant environmental impacts, the agency must prepare an EIR.

UCF argued that the project’s GHG emissions might be cumulatively considerable due to increased mobile source emissions compared to the existing crushing operations and potentially inaccurate traffic counts. However, the court ultimately found that UCF failed to present a fair argument of a significant GHG impact, based on the discussion of its arguments on appeal below.

Court of Appeal Analysis: UCF’s Appeal

MND Did Not Undercount “Passenger Car Equivalent” (PCE) Trips

UCF argued that the project’s transportation impacts were understated, claiming the wrong trip generation rates and classifications were used. The court found no substantial evidence supporting these claims. To the contrary, the record showed that the City calculated the project’s daily PCE trips using both classifications, and found no significant impacts under either.

UCF also argued that delivery van and truck trips were inadequately factored into the project’s total PCE trips. The court, however, found that the City had clearly and properly explained its methodology, including the use of a 3.0 multiplier for 4-axle trucks per the San Bernardino County Congestion Management Plan’s guidelines.

Lastly, the TIA included a “retail analysis memorandum” comparing the project’s traffic impacts as a parcel hub warehouse to a hypothetical retail building, showing that retail use would generate significantly more daily PCE trips and truck traffic. UCF argued this comparison was misleading under CEQA. The court disagreed, stating that the comparison was used as an additional analysis and did not misrepresent the project’s environmental impacts.

UCF’s Transportation Impact Claims Were Either Moot or Unsupported

UCF argued that the MND was flawed because it failed to account for parking spaces and related vehicle trips. The court found this claim moot, as it was based on outdated level of service standards relating to congestion.

UCF also asserted that the City should have performed a vehicle miles traveled (VMT) analysis. The court rejected this challenge because the City did, in fact, prepare a VMT analysis, which demonstrated project impacts would not be significant. Further, the court found held that UCF failed to exhaust administrative remedies on this matter.

In sum, the court concluded that UCF had pointed to “no substantial evidence supporting a fair argument that the project could have significant … transportation impacts, based on a VMT methodology or any other analysis.”

Conclusion

In this case, the court upheld an MND (in the face of a challenging standard of review that typically favors petitioners), affirming the City’s discretion under CEQA to set GHG thresholds and emphasizing that substantial evidence supported the City’s analyses of both GHG and transportation impacts. The decision highlights the importance of thorough and evidence-based environmental reviews to meet CEQA requirements and withstand legal challenges.

[1] The supplemental analysis was validated by two peer review entities. Additionally, both the draft MND and supplemental analysis estimated GHG emissions for a building more than 75,000-square feet larger than what was approved, resulting in a conservative emissions estimate.

[2] As the court affirmed application of the 3,000 MT CO₂e per year threshold, the court decided it need not consider the developer’s arguments regarding the sufficiency of the 10,000 MT CO₂e per year threshold.

[3] Procedurally, the court found that UCF failed to exhaust its administrative remedies on this topic during the administrative process (“no one asked the City to explain the sources of” the original and updated baselines) and forfeited the claim by failing to raise it in the trial court proceedings until its reply brief.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

Westside Los Angeles Neighbors Network v. City of Los Angeles
(2024) (Case No. B320547)

In Westside Los Angeles Neighbors Network v. City of Los Angeles, the California Court of Appeal, Second Appellate District, affirmed the City of Los Angeles’ compliance with the California Environmental Quality Act (CEQA) when processing its Westside Mobility Plan. This decision, published in August 2024, upheld the certification of the Environmental Impact Report (EIR) by the City Planning Commission, finding the Commission was a proper decision-making body under CEQA. The decision also validated the City’s reliance on a categorical exemption and rejected claims that the EIR failed to adequately address growth-inducing impacts and the implementation of mitigation measures.

Background

The Los Angeles City Council directed its Department of Transportation and Department of City Planning to prepare a study addressing traffic congestion and mobility challenges on the Westside, an area historically reliant on cars. Of relevance here, the resulting Westside Mobility Plan included updates to the Coastal Transportation Corridor Specific Plan (CTCSP), the West Side Los Angeles Transportation Improvement and Mitigation Specific Plan (WLA TIMP), and the Livable Boulevards Streetscape Plan (Streetscape Plan).

The CTCSP and WLA TIMP initially were adopted in 1985 and 1997, respectively, to create a transportation impact assessment (TIA) fee program requiring developers to pay a one-time fee before obtaining building, grading, or foundation permits, with the funds allocated to transportation improvements necessary to mitigate impacts from new developments in the designated areas. In response to the direction from the City Council, staff updated the fee program within the CTCSP and WLA TIMP by revising the TIA fees, extending fees to previously exempt land uses, offering credits for affordable and transit-oriented developments, and updating the lists of transportation improvements to be funded. These updates, referred to in the Court’s decision and within this summary as the Fee Program Updates, were designed to ensure that implementation of the transportation improvements would align with the approved Streetscape Plan. The Fee Program Updates and Streetscape Plan make up the “Project” at issue.

In 2015, the City published a draft EIR for the Fee Program Updates. After a 60-day review period, the final EIR was published, identifying significant impacts on air quality, noise, and transportation, despite the Fee Program Updates also being deemed statutorily exempt from CEQA.

In 2018, the Los Angeles City Planning Commission (CPC) certified the final EIR, determined that statutory and categorical exemptions also applied, adopted the Streetscape Plan, and recommended the Fee Program Updates for approval to the City Council. The City then filed a Notice of Determination (NOD) and a Notice of Exemption (NOE) for the Project.

The appellant challenged the CPC’s actions on these three components (CTCSP, WLA TIMP, and Streetscape Plan) of the Westside Mobility Plan. The appellant argued the City violated CEQA by failing to properly analyze the environmental impacts of the Project and by wrongfully delegating authority to the CPC to certify the EIR.

Key Issues

1. Whether the CPC was authorized to certify the EIR.
2. Whether the Streetscape Plan was correctly classified as categorically exempt under CEQA.
3. Whether the EIR sufficiently addressed growth-inducing impacts and the implementation of mitigation measures.

Appellate Court’s Findings

CPC’s Authority
The appellant argued that the CPC was not a “decision-making body” for the Project and thus lacked the authority to certify the EIR. The appellant contended that only the entity (the City Council) authorized to implement the component of the Project causing the “primary source” of environmental impacts—the Fee Program Updates—could certify the EIR. The appellant emphasized that while the CPC could adopt the Streetscape Plan, it could not adopt the Fee Program Updates, which were within the City Council’s exclusive authority.

The Court rejected this argument, stating that, under the CEQA Guidelines, a “decision-making body” is any entity permitted by law to commit the agency to a definite course of action for the whole of a project, even if multiple approvals are required. Additionally, the Court observed that CEQA permits a non-elected decision-making body within a lead agency to certify EIRs.

Here, the Court held the CPC was authorized to certify the EIR because it had the power to adopt a key component of the Project, the Streetscape Plan, which was intertwined with the Fee Program Updates. The Court further noted that nothing in CEQA or the CEQA Guidelines supported the appellant’s “primary source” argument, such that application of their proposed delegation test would improperly expand CEQA in violation of Public Resources Code section 21083.1.

Categorical Exemption

The City had determined that the Streetscape Plan was categorically exempt from CEQA under CEQA Guidelines section 15301, which applies to minor alterations of existing public structures with negligible or no expansion of use. The Court agreed, finding that substantial evidence affirmed the City’s conclusion that the Streetscape Plan’s improvements, such as adding street trees, lighting, and pedestrian crossings, fell within this exemption. The Court noted that the Streetscape Plan would establish standards and guidelines for minor alterations to existing rights-of-way that would improve their aesthetics, functionality, and safety, but would not expand the use of those rights-of-way.

The appellant challenged application of this exemption, arguing that the Streetscape Plan might have significant environmental impacts due to “unusual circumstances.” However, the Court found that the appellant failed to provide evidence that the Streetscape Plan would have such impacts. The Court concluded that the City met its burden of proving the exemption applied, and the appellant did not show that the Streetscape Plan fell within any exceptions to the exemption. As a result, the Court upheld the City’s finding that the Streetscape Plan was categorically exempt from CEQA.

Growth-Inducing Impacts & Mitigation Measures

The appellant argued that the EIR’s analysis of the Fee Program Updates’ growth-inducing impacts was inadequate. The EIR concluded that the Fee Program Updates would improve existing infrastructure without causing additional growth. The appellant claimed the EIR ignored concerns about potential incentives for affordable housing and transit-oriented developments. However, the City’s record of proceedings included evidence explaining that the Fee Program Updates would not change zoning or land use designations, and any incentives provided would not significantly impact existing or future development patterns. The Court was persuaded by the robustness of the City’s record evidence on this topic.

Finally, regarding Mitigation Measure MM-T-2, the appellant asserted that the City failed to ensure its proper implementation. The Court disagreed, finding that the City had provided substantial evidence that the measure would be funded through TIA fees and implemented based on identifiable traffic conditions, as outlined in project-specific studies. The Court held that the City’s approach was consistent with CEQA requirements, and found the appellant failed to show that the EIR’s analysis was deficient or that the City had not complied with its obligations under CEQA.

Conclusion

The Court affirmed the trial court’s judgment in favor of the City of Los Angeles, thereby upholding the City’s CEQA compliance demonstration for its Westside Mobility Plan. While it does not necessarily break new ground, the decision addresses several practical realities of the CEQA process and its analysis of delegated decision-making authority, the CEQA Guidelines’ Class 1 categorical exemption, and growth inducement and mitigation adequacy within EIRs may be useful to CEQA practitioners grappling with similar issues.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

Center for Biological Diversity v. County of San Benito
(Case No. H051322)

In the recently published Center for Biological Diversity v. County of San Benito decision, the California Court of Appeal, Sixth Appellate District, addressed important issues concerning the statute of limitations for filing legal challenges arising under the California Environmental Quality Act (CEQA). The Court’s decision underscores that CEQA’s statute of limitations only is triggered by the final decision of the lead agency, not by an intermediate decision that is subject to appeal.

Factual Background

This case involved the Betabel Project, a commercial roadside attraction in San Benito County, proposed by the McDowell Trust (applicant). The project received initial approval from the County Planning Commission (Planning Commission), which filed a Notice of Determination (NOD) on October 14, 2022, following its certification of the project’s Environmental Impact Report (EIR). The Planning Commission’s decision was later appealed to the County Board of Supervisors, which denied the appeals, certified the EIR, and filed a second NOD on November 10, 2022.

The Center for Biological Diversity, Protect San Benito County and Amah Mutsun Tribal Band (collectively, petitioners) challenged the Board of Supervisors’ approval by filing petitions for writ of mandate with San Benito County Superior Court on December 9, 2022. These petitions alleged that the project’s EIR violated CEQA and the project approvals violated state planning and zoning laws.

The applicant demurred on the grounds that the CEQA causes of action were time-barred because the petitions were filed after expiration of the 30-day statute of limitations period provided by Public Resources Code section 21167, subdivision (c). The applicant argued that the 30-day period commenced when the Planning Commission filed its NOD on October 14, 2022.

The petitioners opposed the demurrer, contending that the 30-day limitations period commenced only when the Board of Supervisors filed its NOD on November 10, 2022, after denying their appeals from the Planning Commissions’ decision and approving the project.

The trial court agreed with the applicant, sustained the demurrer without leave to amend, and entered judgments of dismissal. The petitioners subsequently appealed from the judgments of dismissal on the ground that the trial court erred in ruling that their CEQA causes of action were time-barred under Public Resources Code section 21167, subdivision (c).

Key Legal Issue

The main issue before the Court of Appeal was whether the statute of limitations for filing a CEQA challenge began upon the filing of the first NOD by the Planning Commission or after the filing of the second NOD by the Board of Supervisors.

Appellate Court Decision

To begin, the Court of Appeal, citing Public Resources Code section 21152, subdivision (a), observed that NODs are to be filed by local agencies “after the [project] approval or determination becomes final.” (Italics added.) The Court also referred to CEQA Guidelines section 15352, subdivision (a), which defines “approval” for purposes of CEQA. Under section 15352, “approval” occurs when the agency renders a decision that “commits the agency to a definite course of action.” Importantly, under section 15352, “[t]he exact date of approval of any project is a matter determined by each public agency according to its rules, regulations, and ordinances.”

Therefore, turning to the local rubric, the Court noted that, under the San Benito County Code, an approval from the Planning Commission is not final if it is appealed. More specifically, in San Benito County, the County Code specifies that the Planning Commission’s approval of a conditional use permit becomes final only if no appeal is filed within a designated 10-day period. If an appeal is filed, the approval is not considered final until action to approve or deny is taken by the Board of Supervisors.

In this case, the petitioners timely appealed the Planning Commission’s decision within the County Code’s 10-day period. As a result, the Planning Commission’s approval was not final, and its NOD did not trigger the 30-day statute of limitations for challenging the adequacy of the EIR. The project’s approval did not become final until the Board of Supervisors made its decision. Therefore, the Court found that the second NOD (filed on November 10, 2022) was the operative notice that triggered the 30-day statute of limitations for filing a CEQA challenge. As a result, the Court held the petitions filed by the petitioners were validly and timely filed after exhausting their administrative remedies at the local level.

Conclusion

In summary, this decision serves as a reminder that the statute of limitations under CEQA begins to run only after a final project approval is made by the lead agency. Clients should be aware that the timing of appeals and the finality of decisions are crucial in determining the deadlines for legal actions under CEQA. This case reinforces the importance of understanding the local agency’s procedures and the specific timing of when project approvals become final, particularly where multiple NODs are filed by the agency.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]

Make UC a Good Neighbor v. Regents of the University of California
(2024) 548 P.3d 1051 (Case No. S279242)

In a greatly anticipated decision involving UC Berkeley’s proposed student housing project at People’s Park and its related Long Range Development Plan (LRDP), the Supreme Court unanimously reversed the Court of Appeal’s decision and ruled in favor of the Regents of the University of California (Regents). At issue were Make UC a Good Neighbors’ (petitioners) claims that the Regents’ 2021 Environmental Impact Report (EIR) failed to adequately consider noise impacts from student parties and did not sufficiently evaluate alternative locations.[1] However, recent legislative changes codified on an urgency basis through Assembly Bill (AB) 1307 (2023-2024 Reg. Sess.) made clear that: (1) noise from residential projects is not a significant environmental impact for purposes of the California Environmental Quality Act (CEQA), and (2) certain housing projects sponsored by public higher education institutions are exempt from needing to consider alternative locations. The Supreme Court’s decision aligns with the legislative changes, allowing the Regents’ student housing project to proceed.

Factual Background

The case centered on a legal dispute over the Regents’ proposed student housing project at People’s Park, a site with historical significance due to its association with social and political activism since the 1960s. Currently, the UC Berkeley campus houses only 23 percent of its 45,000 students, the lowest rate in the University of California system. Implementation of the LRDP would add 11,730 new student beds to the campus over time. The project at People’s Park, specifically, would add 1,113 student beds and 125 affordable & supportive housing beds for lower-income or formerly homeless individuals not affiliated with the university.

Procedural Background

As mentioned above, the 2021 EIR was challenged by the petitioners on the grounds that it did not adequately address the noise impacts from student parties and failed to explore alternative locations. The trial court ruled in the Regents’ favor and denied the petition. However, the appellate court ruled that the 2021 EIR was inadequate on both topics – student-generated noise and alternative locations for site development.

Assembly Bill 1307

After the Supreme Court granted review, the Legislature passed AB 1307, introducing new sections to the Public Resources Code of direct and immediate relevance. Section 21085 states that noise from occupants and guests in residential projects is not considered a significant environmental impact. Additionally, section 21085.2 specifies that public higher education institutions are not required to consider alternative locations for residential or mixed-use housing projects in an EIR if the project site is no larger than five acres, surrounded by urban uses, and included in the most recent LRDP.

Section 21085 Analysis

Petitioners conceded that AB 1307 precluded the Court from requiring an analysis of social noise impacts attributable to the project at People’s Park. However, petitioners maintained that the Regents’ 2021 EIR was deficient for not considering broader social noise impacts from the LRDP, arguing the LRDP was not an eligible “residential project” under section 21085.

The Court found it unnecessary to conclusively define “residential projects” in section 21085, noting that – even if the LRDP is not a plan to add residential units – the legislative history of AB 1307 supported a broad interpretation. Specifically, the legislative history plainly documented that the Legislature’s intent was to clarify that social noise from residential projects does not constitute a significant environmental impact under CEQA, directly rebuking the appellate court’s conclusion that the 2021 EIR was inadequate. Therefore, the Court broadly applied section 21085 to the LRDP’s residential aspects. This interpretation aligned with the Legislature’s related goals to streamline housing development and address noise concerns through local ordinances rather than CEQA. Public policy also supported this interpretation, ensuring that broader land use planning decisions are not subjected to more stringent noise impact analysis than specific housing projects.

Section 21085.2 Analysis

Petitioners acknowledged that the project at People’s Park satisfied the requirements contained in section 21085.2, thereby eliminating the requirement to consider alternative locations. However, petitioners claimed that the Court should still address the general issue due to its broad public interest, and specifically opine as to the application of section 21085.2 to future residential projects contained within the LRDP. The Court rejected petitioners’ request, noting that it was not presented in the petition for review. The Court also clarified that the mootness doctrine did not apply: this is because section 21085.2 did not make it impossible for the Court to grant relief; instead, it simply determined petitioners were not entitled to relief and were not the prevailing parties.

Conclusion

This ruling from the Supreme Court allows UC Berkeley to proceed with the People’s Park housing project without needing to address the previously contested noise concerns and location alternatives in the EIR. This decision underscores the legislative intent to facilitate residential development and address housing shortages without the burden of extended CEQA reviews on social noise and location alternatives.

[1] The 2021 EIR provided a program-level environmental impact analysis for the Regents’ LRDP for the UC Berkeley campus, and a project-level environmental impact analysis for Housing Project No. 2 therein – the student housing project at People’s Park.

[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert.  Legal counsel should be sought for answers to specific legal questions.]