On February 13, 2025, the Second District Court of Appeal (Div. 7) filed its 71-page published opinion affirming the trial court’s judgment rejecting CEQA safety hazard and cumulative impacts analysis challenges – as well as Administrative Procedure Act (“APA”) and generic “arbitrary and capricious” writ challenges – to the California Air Resources Board’s (“CARB”) August 2020 decision adopting the “Control Measure For Ocean-Going Vessels At Berth” (the “Regulation,” codified at 17 Cal. Code Regs. § 93130 et seq).  Western States Petroleum Association v. California Air Resources Board (2025) 108 Cal.App.5th 938.

The Regulation and Appellant’s Litigation Challenging It

The Regulation, which was promulgated pursuant to CARB’s statutory responsibility and authority to adopt measures to reduce toxic air emissions from non-vehicular sources, places limits on NOx, PM, DPM, ROG, and GHG emissions from large ocean-going cargo and passenger vessels (including container, cargo, cruise, and tanker ships) while they are at berth in California ports.  The Regulation targets emissions from auxiliary engines (which supply electricity for non-propulsive functions while a ship is berthed) and boilers (which power steam-driven pumps to offload crude oil from large tankers).

Petitioner and appellant WSPA’s writ action argued the Regulation was arbitrary and capricious, and lacking in evidentiary support, in imposing deadlines of 2025 (for the ports of LA and Long Beach) and 2027 (for all other ports) for tankers to design and implement required emissions control measures – either through shore power or “capture and control” systems – that are not yet feasible and will not be feasible by those deadlines.  WSPA also argued CARB violated the APA by ignoring and delaying public release of a CARB-commissioned engineering report supporting WSPA’s infeasibility and other positions, and violated CEQA by failing to adequately analyze and mitigate safety hazards and cumulative impacts that will result from the Regulation’s implementation.  The trial court denied WSPA’s mandate petition, rejecting all these claims, and the Second District affirmed that judgment on appeal.

The Court Of Appeal’s Opinion

Non-CEQA Issues

Addressing the non-CEQA portions of the case, the Court of Appeal held, applying an extremely deferential “arbitrary and capricious” standard of review to CARB’s quasi-legislative rule-making action, that its decision adopting the Regulation was not “arbitrary, capricious, or entirely lacking in evidentiary support” because CARB considered all relevant factors and there was a “reasonable basis” for its decision, which was made in a technical area “where courts will permit administrative agencies to work out their problems with as little judicial interference as possible.”  (Citation omitted.)

It was undisputed “that CARB could lawfully set emissions limits based on technologies that do not currently exist – referred to as “technology-forcing” standards – so long as those technologies are reasonably anticipated to exist by the compliance deadline.”  Here, the Court held WSPA failed to show CARB’s determination that the required “capture and control” and shore power technology and infrastructure can be ready by its deadlines lacked any evidentiary support in the record; the Court discussed the expert evidence on these points in detail and concluded that evidence supported CARB’s position, while observing “the fact that some experts disagreed with CARB’s assessment that the deadlines were realistic does not render CARB’s analysis arbitrary or lacking evidentiary support.”

Similarly, the Court rejected WSPA’s APA arguments based on CARB’s delay in publicly disclosing an engineering report it had commissioned, which WSPA claimed showed CARB had greatly overstated tanker emissions, thus undermining the rulemaking process.  The Court had little trouble concluding that, despite CARB’s apparent four-month delay in disclosing the report, CARB “substantially complied” with procedural requirements of the APA, even assuming it violated Government Code section 11347.3’s requirement to timely add the report to its public rulemaking file.  The Court noted this was the only alleged APA violation by CARB in a matter involving a multi-year rulemaking process with a 60,000-plus page file, and that WSPA was not prevented from commenting, nor was CARB prevented from considering and responding to WSPA’s comments, regarding the report.

CEQA Issues

CEQA’s Standard Of Review And Provisions Unique To
CARB’s Regulation Of Air Emissions

Turning to the CEQA claims raised by WSPA, the Court prefaced its analysis with a brief recitation of CEQA’s “prejudicial abuse of discretion” standard of review, followed by some observations about the unique nature of CARB’s “abbreviated CEQA review” of regulations setting emissions standards pursuant to its certified regulatory program (Pub. Resources Code, § 21080.5(c); CEQA Guidelines, §§ 15250, 15251), and under “special provisions of CEQA” that “apply specifically to regulations CARB promulgates to set “performance standards” and to require “the installation of pollution control equipment[.]””  (Citing to the Global Warming Solutions Act of 2006; and to Pub. Resources Code, § 21159 [part of CEQA article entitled “Expedited Environmental Review for Environmentally Mandated Projects”].)

Under these special statutory provisions governing CARB’s expedited CEQA review of regulations setting air pollution emissions limits, the analysis must address “the reasonably foreseeable methods of compliance” with the Regulation (Pub. Resources Code, §21159), and include at a minimum:  (1) analysis of their reasonably foreseeable environmental impacts; (2) analysis of reasonably foreseeable mitigation measures; and (3) analysis of reasonably foreseeable alternative means of compliance.  (Id., subds. (a)(1)-(3).)  The analysis must consider “a reasonable range of environmental, economic, and technical factors, population and geographic areas, and specific sites” (id., subd. (c)), but a project-level analysis is not required (id., subd. (d); Guidelines, §15187(e)), and “the agency may utilize numerical ranges or averages” absent available specific data, and need not “engage in speculation or conjecture.”  (Pub. Resources Code, §21159(a).)

CARB’s Use Of CEQA “Tiering” Principles To Incorporate Prior
SIP EA Analysis And Defer Speculative Site-Specific Analysis

Here, CARB’s environmental assessment of the Regulation “tiered” from earlier environmental analysis of the 2016 State Implementation Plan (SIP) and also expressly contemplated site-specific, “project-level” environmental analyses would be conducted under CEQA by various other lead agencies considering approvals of specific compliance measures undertaken in the future to meet the Regulation’s emissions standards.  (The Court took judicial notice of the SIP EA, which was not included in the administrative record, but was incorporated by reference in the Regulation EA and discussed in WSPA’s reply brief.)

After discussing CEQA tiering principles in general, the Court observed CARB’s Regulation EA was explicitly “programmatic” in nature, as it addressed “a broad regulatory program” in a “general level of detail,” and noted that the specific location and design of infrastructure in the ports to implement the Regulation was unknown and speculative in nature.  A “berth-by-berth” analysis for hundreds of California berths was therefore not conducted by CARB, and had it been it could have produced misleading information.

In holding that the Regulation EA adequately analyzed and addressed environmental impacts, safety hazards, and mitigation, the Court rejected WSPA’s arguments that such analysis was insufficient or improperly deferred and that mitigation was inadequate.  Stating that it independently reviews whether environmental impact descriptions lack analysis or omit an impact’s magnitude (citing, inter alia, Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 514, 516), but reviews CARB’s factual findings for substantial evidence, the Court first held CARB’s “Regulation EA contained an adequate program-level discussion of the magnitude of the potential safety hazards expected to result from efforts to comply with the Regulation, and the reasonably foreseeable mitigation measures.”  The EA addressed short-term construction and long-term operational impacts of reasonably foreseeable land-based compliance activities, including from transportation and use of hazardous materials, spill-related hazards, and explosion risks.  WSPA’s arguments emphasized explosion risks, and the EA acknowledged and addressed such risks and mitigation (such as pumping inert gas into cargo tanks while off-loading, to reduce oxygen levels and associated flammability risks) at an appropriate general level of detail, while also explaining that future and different lead agencies would address in more detail project-specific mitigation, including required safety studies, prior to physical implementation of compliance infrastructure.  In sum, CARB lacked the site-specific project details needed to perform such analysis; appropriately “flagged the issue” at a programmatic level; was not required to perform such safety studies itself; and could therefore appropriately “defer” such analysis to future site-specific project review under established CEQA principles.

Per the Court:  “We … conclude that the Regulation EA contained a reasonable level of detail with respect to the foreseeable impacts of the Regulation, and CARB appropriately deferred more specific analysis of the impacts and mitigation measures to later reviews of site-specific compliance methods.”

The Regulation EA’s Cumulative Impacts Analysis Was Adequate

In holding that CARB conducted an adequate cumulative impacts analysis – while expressly declining to decide whether it was legally required to conduct such an analysis at all under the applicable expedited CEQA review rules – the Court recited familiar principles:  the analysis is guided by standards of practicality and reasonableness, and must reflect the severity and likelihood of impacts, but need not provide as much detail as for the analysis of the impacts of the particular project at issue.  An “exhaustive analysis of cumulative impacts” is not required, and a “good faith and reasonable disclosure” suffices.

Per the CEQA Guidelines, the cumulative impacts analysis should employ one of two kinds of data compilation:  (1) a “list of past, present, and probable future projects,” or (2) a “summary of projections contained in an adopted local, regional or statewide plan, or related planning document, that describes or evaluates conditions contributing to the cumulative effect.”  (Quoting CEQA Guidelines, § 15130(b)(1).)  Plans for reduction of GHG emissions may be relied on for a cumulative impacts analysis (see, Pub. Resources Code, § 21100(e)), and an agency may incorporate by reference the pertinent cumulative impacts analysis from a prior EIR from which its current analysis is tiering.  (Guidelines, § 15130(c).)

Applying these principles, the Court held CARB properly relied on a summary of projections from the SIP EA, incorporating by reference that document’s cumulative impacts analysis in its Regulation EA.  It rejected WSPA’s challenge to this “methodology” choice under the applicable and deferential substantial evidence standard of review.  CARB’s Regulation EA explained its methodology and reasons for relying on and incorporating the SIP EA’s cumulative impacts analysis, summarized relevant portions of that analysis, and explained in its responses to comments that this was the most accurate way to consider impacts from an emissions-reduction measure, a conclusion supported by substantial evidence and for which the court could not substitute its own judgment.  The Court also rejected as unsupported WSPA’s argument that the 2016 SIP EA’s data was outdated or inaccurate.

Finally, the Court held the Regulation EA’s cumulative impacts analysis contained a sufficient program-level discussion of cumulative impacts on a number of categories of resources.  These included, but were not limited to, marine biological resources, and the analysis also discussed routinely employed mitigation measures, while recognizing the ability to require such measures would ultimately reside in local or state jurisdictions with permitting authority over future site-specific projects that were beyond the purview of the analysis.  Again, it noted, a detailed “project-level analysis” was not required of CARB for speculative future site-specific compliance projects.  (Pub. Resources Code, § 21159(d); Guidelines, § 15187(e).)  Nor did the Court find merit in WSPA’s arguments that CARB’s acceleration of the timelines for tanker vessel compliance with its emissions standards undermined the adequacy of its cumulative impact analysis; per the Court, WSPA failed to carry its “burden to show why CARB’s assessment of the impacts of the accelerated deadline was faulty or lacking [substantial evidence support].”

Conclusion And Implications

As for its non-CEQA issues, the opinion illustrates the inherent difficulty of mounting an “arbitrary and capricious” or APA challenge to a quasi-legislative rulemaking decision of CARB.  The opinion’s discussion of the CEQA issues underscores the special CEQA rules applicable to CARB’s “abbreviated review” and adoption of a regulation setting emissions limits – which might not require a cumulative impacts analysis at all – and the interplay of CEQA’s principles and rules governing tiering, programmatic analysis, and deferral of analysis and mitigation in this context to a later time when it would not require speculation or conjecture.

Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.