In a lengthy, mostly published opinion filed on March 20, 2014, the Second District Court of Appeal reversed the trial court’s judgment granting a writ of mandate, and upheld – as against state law challenges brought by a bevy of environmental plaintiffs  – the EIS/EIR (EIR) and related resources management/conservation plan approvals of the California Department of Fish and Wildlife (CDFW) and U.S. Army Corps of Engineers (ACE) for the 12,000 acre Newhall Ranch Specific Plan site.  Center for Biological Diversity, et al. v. Department of Fish and Wildlife (The Newhall Land and Farming Company, RPI) (2d Dist. 2014) 224 Cal.App.4th 1105, 169 Cal.Rptr.3d 413, No. B245131. Two decades into the planning process, the controversial Northwestern LA County project ultimately contemplates the massive development of five villages containing residential, mixed-use and non-residential land uses, with up to 21,308 dwelling units (and 57,903 residents), 629 acres of mixed use development, 67 acres of commercial uses, 249 acres of business park uses, and numerous other public and open space uses and amenities, to be built out over a 25 to 30 year period.  The land use approvals at issue in the case included a Resource Management and Development Plan, Spineflower Conservation Plan, associated Master Streambed Alteration Agreement, and related Incidental Take Permits (ITPs) issued by CDFW under the California Endangered Species Act (CESA).  The 5,828 page EIR focused on the resource management and conservation plans required to be in place prior to the residential and commercial construction components of the project.

The published portion of the Court’s 112-page opinion addresses a number of interesting issues involving CEQA and CESA law.  Key takeaways of the published portion of the opinion include:

•  Extensive mitigation measures analyzed in the EIR and adopted for the endangered Stickleback –a small, largely annual fish requiring shallow, slow, marginal stream flows with abundant vegetative cover and present in the resource management plan area – were properly found by the CDFW and ACE based on substantial evidence to be adequate to avoid unlawful “take” of the Stickleback.

•  The trial court’s ruling in plaintiff’s favor that certain mitigation measures endorsed by a renowned Stickleback expert – such as block netting and fish relocation to present Stickleback “take” during project construction work in the Santa Clara River and its tributaries – were themselves an illegal “taking” of the fish under CESA was legal error, for numerous reasons.

•  While “take” is defined by CESA (see Cal. Fish & Game Code, §86) to include “capture” and other actions in addition to those causing mortality, CESA’s prohibition on “take” of “fully protected” species must be read together and harmonized with its expressly approved conservation methods, which include “live trapping and transplantation.” (Fish & Game Code, §2061.)

•  As an interpretive matter, according to the Court, “the [CESA] is tethered to the California Environmental Quality Act.  We construe them together.”  Further, this state’s endangered species act [i.e., the CESA] is largely patterned on the federal Endangered Species Act” and “decisional authority concerning that federal endangered species act is typically given great weight.”

•  The Court rejected plaintiffs’ argument and the trial court’s conclusion that mitigation measures requiring expert “relocation” of Stickleback from construction areas constituted “capture” and “possession” which are expressly prohibited by CESA as a “take”; to accept that argument would be to ignore that the entire statutory scheme must be construed together, and would render Fish & Game Code §2061’s language expressly authorizing live trapping and transplantation conservation measures surplusage. The Court observed that even the CESA’s prohibition on taking “fully protected” species such as the Stickleback is not absolute, citing exceptions for scientific research, settlement of certain Southern California water-related issues, and situations involving specific circumstances pursuant to the Natural Community Conservation Planning Act.  Construing the pertinent provisions of CESA and CEQA together, the court ultimately concluded no unlawful take will occur from the agencies’ mitigation measures.

•  According to the Court’s pertinent reasoning: “Fish and Game Code section 2055 expressly requires state agencies to ‘conserve endangered species’ and utilize their authority to further the purposes of the endangered species act.  Thus, we conclude: Fish and Game Code Section 2055 requires the department to use its authority to further the endangered species act’s purposes which includes conservation; and all of this has occurred in the context of the imposition of mitigation measures.  Hence, the live trapping and transplantation techniques used in this case do not constitute an unlawful take or possession.”

•  The Court further rejected plaintiffs’ attempt to use extra-record evidence and invoke the “public trust doctrine” in support of their position on the CESA/CEQA “taking or possession issue,” as contrary to established law.

•  The Court also rejected plaintiffs’ arguments that the EIR’s analysis of and mitigation measures for potential Native American resources impacts were inadequate, both (1) because plaintiffs had forfeited the arguments under CEQA by failing to raise the exact issues during the public comment period (Pub. Resources Code, §21177(a)), and (2) on their merits, after extensive analysis under CEQA’s relevant provisions concerning historical archaeological resources. (See, e.g., 14 Cal. Code Regs., §15126.4(b)(3).)

•  The Court also rejected plaintiffs’ challenges to and the trial court’s rulings regarding the EIR’s alternatives analysis, which analyzed eight alternatives including the “no project” alternative.  CDFW did not err in considering consistency with the project’s ambitious Specific Plan in assessing the infeasibility of alternatives, and substantial evidence supported its rejection of an alternative (Alternative 6) based on both economic feasibility, as determined by a standard industry metric, i.e., cost per developable acre, and on infeasibility for failure to meet the project’s basic objectives as defined by the specific plan.

•  The Court also rejected the plaintiffs’ arguments and the trial court’s ruling on the issues of alleged impacts of “sub-lethal copper discharge [on] steelhead smolt” as both forfeited (due to the plaintiffs’ failure to raise it during the comment period), and meritless in any event due to “substantial evidence [in the record] that the project’s impacts on steelhead smolt would be less than significant,” as would its dissolved copper impacts under applicable water quality standards.

•  In an extensive analysis of the adequacy of the EIR, Spineflower Conservation Plan, and the related ITP, the Court rejected the trial court’s ruling that mitigation measures for incidental take of the protected plant were inadequate or unsupported by substantial evidence.  Rather, under the applicable substantial evidence standard of review, the adequacy of the mitigation measures and findings were supported by substantial evidence in the form of extensive scientific and academic study, research, data and analyses by a large number of credentialed scientists.  In essence, the appellate court thoroughly rejected the trial court’s substitution of its judgment for that of the agencies and their experts on the scientific and technical issues addressed in the EIR.

•  In rejecting plaintiffs’ “improper deferral of mitigation” arguments, the Court stated: “… the [CDFW’s] comprehensive monitoring plan does not amount to deferring appropriate environmental actions.  A conservation plan that adapts to changing scientific knowledge does not necessarily violate the endangered species act.  [citations] … Under these circumstances, the requirement that future research be conducted concerning the Spineflower is not deferring an environmental decision – it is sound ecological management.  Finally, monitoring the developer’s conduct within the preserve areas for a prolonged period of time does not constitute deferring an environmental decision.”  For all of the reasons it offered as to the validity of the EIR in this regard, the Court also found CDFW did not “abuse its discretion” in issuing the related ITP.

Perhaps the most interesting and important portion of the opinion – the final, 20-page substantive section rejecting the trial court’s ruling and plaintiffs’ challenges to the EIR’s GHG impacts analysis – was unpublished.  Why the appellate court “hid its work” on these important, cutting-edge CEQA issues isn’t clear.  In essence, the Court rejected the claim that CDFW’s use of a significance threshold derived from the GHG reduction goal of AB 32 (the Global Warming Solutions Act of 2006) – i.e., approximately 30% reduction from the project’s projected “business as usual” (BAU) emissions in 2020 – constituted use of an improper “hypothetical” baseline under CEQA.  According to the Court, the EIR properly (1) analyzed, quantified and disclosed the project site’s existing GHG emissions without the project; (2) estimated the project’s own anticipated additional GHG emissions at build out; and (3) properly exercised agency discretion to adopt a threshold of significance (goal of 30% below 2020 BAU) against which it then measured the significance of the project’s quantified emissions.  According to the Court, two different Courts of Appeal have already sanctioned such an analysis in published opinions (see Friends of Oroville v. City of Oroville (2013) 219 Cal.App.4th 832, 834; Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327, 336 (“CREED”)) and perhaps this was intended to explain why it chose not to publish this portion of its own opinion.  (For reasons stated in concluding this post below, however, I’m not convinced this portion of the opinion did not warrant publication.)

The Second District’s sprawling opinion seems, appropriately, to match the massive scale of the underlying Newhall Ranch development which was the subject of its CESA and CEQA analyses.  Its analysis of CESA’s provisions harmonizing the Act’s “take” prohibition with the adoption of project mitigation measures employing legislatively-approved “live trapping and transplantation” conservation actions puts to rest a novel issue raised by plaintiffs with sound legal analysis and, from my perspective, a welcome dose of common sense. The decision’s adherence to CEQA’s “exact issue” exhaustion requirement and deference to highly technical EIR analyses and conclusions under the substantial evidence standard, while not groundbreaking, are nonetheless welcome additions to the body of existing case law on these topics. The Court’s analysis on “deferral” of mitigation adds incrementally to CEQA’s evolving jurisprudence in an area of law which in my view is (and should be) moving past the simplistic Sundstrom-type analysis so often invoked by plaintiffs; courts must grapple with uncertainty that is often unavoidable even in the face of the best reasonably available science, and learn to learn to embrace reasonable and appropriate adaptive management measures involving qualified experts.

The Court’s failure to publish the GHG impacts analysis portion of its opinion was, however, disappointing. The two cases it cited as holding that AB 32’s target of 30% reduction from 2020 BAU is a permissible threshold of significance for GHG impacts both did so under different factual scenarios, i.e., situations where an existing and operating big box retail store development was to be replaced by a larger, but more efficient, store.  That scenario – where an existing similar development’s GHG emissions can and must be analyzed and quantified as to current and BAU GHG emissions along with those of the proposed replacement project – is obviously unlike the Newhall Ranch scenario and its proposed massive new mixed use development on an essentially undeveloped 12,000-acre site.  Additionally, the CREED case involved a project which not only satisfied AB 32’s 30% -below- 2020 BAU goal, but its alternative 10%-below-currently-existing (i.e., baseline) emissions target.  Moreover, another recent published Supreme Court case in the arguably analogous area of air pollution emissions (albeit nitrogen oxide, and not GHG, emissions) holds use of a “hypothetical” emissions baseline from maximum permitted operating levels of oil refinery boilers to measure emissions increases, rather than using actually existing emissions levels, is improper under CEQA.  (Communities For A Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310.)

While GHG/climate change impacts obviously differ in nature (i.e., they are global) from the localized emissions impacts of other air pollutants, which are typically measured in terms of whether increases over current emissions levels exceed a significance threshold, the Court’s failure to grapple with and forthrightly explain these differences in a published opinion supporting its holding deprives future litigants of valuable precedential authority and guidance on the issue.  It also invites further litigation challenges to the type of GHG threshold of significance applied by CDFW and the ACE for Newhall Ranch. In my own opinion, the portion of the Court’s opinion endorsing application of the AB 32-derived GHG threshold of significance, and applying it in the unique factual context of this case, would have made a significant contribution to the legal literature worthy of publication in the official reports.

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