CEQA Update: Court of Appeal Concludes That the Environment's Effect on a Project Need Not Be Analyzed Under CEQA
In one of the most notable decisions of 2011, the Second District Court of Appeal recently held in Ballona Wetlands Land Trust et al. v. City of Los Angeles1 that the environment’s effects on a proposed project do not have to be analyzed under the California Environmental Quality Act (CEQA). The potential implications should not be underestimated as a wide range of impacts previously analyzed in CEQA documents may now be considered outside CEQA’s statutory authority.
The CEQA document at issue was an environmental impact report (EIR) for a second phase of a mixed-use development project that was revised as a consequence of prior litigation setting aside an earlier EIR certified in 2004. The petitioners, Ballona Wetlands Land Trust and Ballona Ecosystem Education Project (BEEP), challenged the revised EIR’s analysis of archaeological resources and sea level rise resulting from global climate change, the project description and the city’s finding of no significant impact on land use consistency.
The court of appeal’s most far-reaching holding was related to the EIR’s analysis of the impact of sea level rise on the proposed development. The EIR analyzed the development’s projected contribution to global climate change through the emission of greenhouse gases (GHGs), and briefly noted that global warming could cause a rise in sea level and the flooding of coastal areas, but provided no specific analysis of the impact of global climate change on the phase two project site. During the administrative process Ballona Wetlands Land Trust submitted a comment letter stating that the EIR should address the impact of sea level rise on the phase two project and the extent to which the phase two project could worsen the impact of sea level rise on the surrounding areas. It also submitted a report projecting significant sea level rise due to global climate change, cautioning against development in vulnerable areas. The city’s response disputed the findings in the report and concluded that the project would not be subject to flooding from sea level rise due to the project’s distance from the coast, among other factors. The plaintiffs sued, alleging that the EIR’s discussion of the impact of sea level rise on the project was inadequate.
The court of appeal rejected the plaintiffs’ argument on the grounds that CEQA does not legally require an analysis of the environmental impact of sea level rise on the project itself. The court held:
“We believe that identifying the environmental effects of attracting development and people to an area is consistent with CEQA’s legislative purpose and statutory requirements, but identifying the effects on the project and its users of locating the project in a particular environmental setting is neither consistent with CEQA’s legislative purpose nor required by the CEQA statutes.”
The city was required to analyze in the EIR the project’s GHG emissions and their effect on the environment, but CEQA did not require the EIR to discuss the impact of global climate change and sea level rise on the proposed project.
The court cited three decisions (two of which have been decided in the last two years) in support of its holding that the purpose of an EIR is to identify the significant effects of a project on the environment ? not the significant effects of the environment on a project. Specifically, in Baird v. County of Contra Costa, the court held that an EIR was not required to evaluate the impact of a site’s toxic contamination on future patients of a proposed addiction treatment facility expansion project since the expansion project itself was not anticipated to affect the surrounding environment. (1995) 32 Cal.App.4th 1464, 1469. Similarly, in City of Long Beach v. Los Angeles Unified School District, the court concluded that an EIR was not required to analyze the impact of emissions from nearby freeways on future staff and students of a proposed high school. (2009) 176 Cal.App.4th 889, 905. Most recently, in South Orange County Wastewater Authority v. City of Dana Point (SOCWA), the court rejected a challenge to a mitigated negative declaration for a proposed residential development since the impact of noxious odors from an existing wastewater treatment facility on future residents was not a significant effect on the environment. (2011) 196 Cal.App.4th 1604. In SOCWA, the court was suspicious of the petitioner’s (the odor-emitting wastewater treatment facility) “not-so-very-carefully concealed” attempt to extract odor mitigation devices and liability protection from the residential developer. Id. at 1610. Aside from this irritant, the SOCWA court further explained that statutes, ordinances and regulations other than CEQA are intended to fulfill the function of protecting people from the existing environment.
The Ballona court also considered language in CEQA Guidelines section 15126.2 subdivision (a) which provides that an “EIR shall analyze any significant effects the project might cause by bringing development and people into the area affected[.]” The section then includes examples of significant impacts of locating development in areas susceptible to hazardous conditions (e.g., fault lines, floodplains, coastlines, wildfire risk areas). The court found that the “examples” given in subdivision (a) are not examples of environmental effects wrought by development and rejected them as inconsistent with controlling law.
In a similarly dramatic fashion, the court targeted provisions of the CEQA Guidelines. The court reviewed questions in Appendix G’s Environmental Checklist that concern the exposure of people or structures to environmental hazards (e.g., “would the project ... [e]xpose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death involving ... [r]upture of a known earthquake fault ... .”). The court appeared to approve the use of the Appendix G questions to the extent that they refer to the project’s exacerbation of existing environmental hazards. However, the court disapproved the use of the Appendix G questions to the extent they refer to the effects on users of the project and structures in the project to preexisting environmental hazards. In the latter case, the Appendix G questions “do not relate to environmental impacts under CEQA and cannot support an argument that the effects of the environment on a project must be analyzed in an EIR.” Based on the foregoing analysis and after reviewing the city’s response to Ballona Wetlands Land Trust comments submitted during the administrative process, the court concluded that the EIR’s analysis of sea level rise and response to comments were adequate.
With respect to archaeological resources, the court concluded in a prior opinion that the 2004 EIR had failed to adequately discuss preservation in place as a means to mitigate the significant effects on two historical archaeological resources that would be impacted by the project, as required by CEQA Guidelines sections 15162.4(a)(1)(A)2 and (b)(3)(B).3 The court first concluded that the appeal was not moot despite the completion of all planned excavation of archaeological sites because the city could still require modifications to mitigate impacts on archaeological resources, for example, by restoring archaeological resources to their prior resting places or to other suitable locations. While the revised EIR came to the same conclusion as the prior EIR (i.e., that preservation in place was not feasible in 2004), the court concluded that the revised EIR adequately discussed preservation in place by including more explicit discussion of each of the potential means for preservation in place set forth in Guidelines section 15126.2 subdivision (b)(3)(B) and by discussing a data recovery plan as a means of mitigation pursuant to subdivision (b)(3)(C). The emphasis on explicit discussion of preservation in place as the preferred method of mitigation of impacts to archaeological resources continues a trend seen in a recent Fifth District opinion, Madera Oversight Coalition, Inc. et al. v. County of Madera (2011) 199 Cal.App.4th 48.4
Finally, the court concluded that BEEP’s newly asserted challenges to the project description and the finding on land use consistency were beyond the scope of the trial court’s jurisdiction in the proceedings following the prior litigation.
The implications of this decision are vast. This is the fourth decision to hold that CEQA does not require analysis or mitigation of the environment’s impact on a project. Of those decisions, it is perhaps the most direct in rejecting language in CEQA Guidelines section 15126.4 as well as the Appendix G Environmental Checklist as beyond CEQA’s statutory authority. Further, it is the first of the decisions to address the issue in the context of global climate change ? an impact sometimes considered unique from others due to its global nature. In so holding, a wide range of impacts previously analyzed in CEQA documents may now be considered outside CEQA’s statutory jurisdiction. This could exempt from CEQA analysis, for example:
- the impact of existing toxic air contaminant emissions from nearby stationary sources or highways on future residents of infill housing projects
- the potential health effects of hazardous materials contamination on occupants of brownfields projects (to the extent that such hazardous materials are not disturbed by the proposed project)
- future climate change impacts (e.g., lack of water supply, sea level rise) that could affect the viability and safety of commercial and residential development projects
As the opinion is interpreted and applied to new environmental documents, the potential implications should not be underestimated.
2 Guidelines section 15162.4(a)(1)(A) provides that "where several measures are available to mitigate an impact, each impact should be discussed and the basis for selecting a particular measure should be identified."
3 Guidelines section 15162.4(b)(3)(B) provides that "preservation in place may be accomplished by, but is not limited to, the following: (1) Planning construction to avoid archaeological sites; (2) Incorporation of sites within parks, greenspace, or other open space; (3) Covering the archaeological sites with a layer of chemically stable soil before building tennis courts, parking lots, or similar facilities on the site; (4) Deeding the site into a permanent conservation easement."
4 The Madera court's emphasis on explicit discussion of the options for preserving resources in place set forth in Guidelines section 15126.4(b)(3)(B) was based on the fact that the sentence introducing section 15126.4(b)(3) states that the factors set forth in subsections (A) through (D) "shall" be considered. Madera at 81 (citing Guidelines § 15005(a)["shall" and "must" are mandatory]). The Ballona court's emphasis on explicit discussion apparently stemmed from the more general requirement in section 15126.4(a)(1)(B) to discuss various options for mitigating an impact where there are several.
This article also appeared in the Daily Journal on January 19, 2012.