By: Barbara Lichman, Ph.D.

The California Court of Appeal last week reversed a lower court decision that would have indefinitely delayed the development by Newhall Land and Farming Company of 21,308 residential units, 629 acres of mixed use development, 67 acres of commercial use, 249 acres of business park, and 1,014 acres of open space in northwestern Los Angeles County over the next 25-30 years (“Project”).  The lower court’s decision had originally granted the Petition for Writ of Mandate brought by, among others, the Center for Biological Diversity (“Respondents”), challenging, among other actions by the California Department of Fish and Wildlife (“DFW”) (“Appellant”), the revised Joint Federal/State Environmental Impact Statement/Environmental Impact Report (“EIS/EIR”) for the Project.

While the Appellate Court’s 112 page decision addressed numerous causes of action brought by Respondents in the trial court, one of the most unique and far reaching was its disposition of Respondents’ claim that the EIS/EIR’s baseline for assessing the cumulative impacts of the Project’s Greenhouse Gas (“GHG”) emissions is a procedural issue properly evaluated under the “failure to proceed in a manner required by law” standard, applicable to procedural actions, and that, employing the correct standard, the EIS/EIR’s analysis was predicated on an illusory baseline.  In a decision that is likely to be adopted in the adjudication of other California Environmental Quality Act (“CEQA”) actions challenging the evolving state and federal GHG standards, the Appellate Court firmly disagreed. 

The Appellate Court held that “the determination of an environmental baseline for the existing conditions in a project area is largely factual in nature.”  Center for Biological Diversity, et al. v. Department of Fish and Wildlife, Court of Appeal of the State of California, Second Appellate District, Division Five, Case No. B245131 (Super. Ct. No. BS131347), March 2, 2014, p. 99, citing Neighbors for Smart Rail v. Exposition Metro Line Const. Authority, 57 Cal.4th 439, 449 (2013), and, thus, “an agency enjoys the discretion to decide, in the first instance, exactly how the existing physical conditions without the project can most realistically be measured, subject to review, as with all [CEQA] factual determinations, for support by substantial evidence.”  Id.   The Appellate Court then went on to find that the environmental baseline for the Project’s GHG emissions had been supported by substantial evidence in this case, where the Appellant adequately identified the amount of GHG emissions currently emanating from the Project site as the existing environmental setting, typically used as the baseline.  Id., citing CEQA Guidelines § 15125, subd. (a); Neighbors for Smart Rail, supra, 57 Cal.4th at 448.

The Appellate Court went on to decide that the Appellant had properly declined to make a determination of the significance of the GHG emissions produced by the Project, even though the emissions were estimated in the EIS/EIR to exceed the baseline level of 10,272 metric tons per year by 259,000 metric tons per year, where the conditions without the Project’s environmental “efficiencies and strategies” were estimated to result in emissions totaling 390,046 metric tons per year.  The Appellate Court agreed with the Appellant that “the increase alone is not sufficient to support a significance determination because of the absence of scientific or factual information regarding when particular quantities of GHG emissions become significant (as climate change is a global issue).”  Center for Biological Diversity, supra, at 103.  The Appellate Court went on to find the Appellant “has discretion to select the significance criterion for [GHG] emissions,” Center for Biological Diversity, supra, at 105, citing CEQA Guidelines § 15064.4, subd. (a)], and to hold proper the Appellant’s significance criterion of choice, i.e., “[w]ill the proposed [project’s] [GHG] emissions impede compliance with the [GHG] emission reductions mandated in [the global warming act]?”

In summary, the Appellate Court’s decision in this case lays the groundwork for future GHG analyses by leaving it up to the project proponent to choose, after providing evidence of the basis of its decision, both the criterion for the determination of significance and the definition of significance itself for GHG emissions, a very wide latitude for developers and other project proponents who now find themselves on the cutting edge of the interface between development and scientific analysis.

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