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City Need Not Abide by AG's List of GHG Mitigation Measures

By now, most CEQA practitioners have faced the problem of what to do when a project opponent submits the attorney general's 18-page list of potential greenhouse gas mitigation measures, when many of the measures in the list may not be appropriate for a particular project.  On June 30, 2011, the Court of Appeal for the Second Appellate District held that the lead agency is not required to explain why each of the proposed measures is inappropriate for the project at issue. 

The City of Santa Clarita approved a master plan for the expansion of Henry Mayo Newhall Hospital by adopting a statement of overriding considerations and certifying the final environmental impact report for the project. The city also adopted a development agreement between it and the real parties in interest, and adopted the master plan.  The project would expand the amount of hospital and medical office space on the existing site from its current size of 340,071 square feet to 667,434 square feet and would add nine proposed structures over a 15-year period. 

A citizens group named Santa Clarita Organization for Planning the Environment (SCOPE) challenged the project approvals on two grounds: 1) the city's conclusion that complete mitigation of the project's impact on climate change was infeasible was not supported by substantial evidence or adequate analysis; and 2) that the city had abused its discretion in making the findings required by the city's uniform development code. 

Climate Change

The city prepared four draft EIRs for the project between November 2005 and September 2008. In June 2008, the Governor's Office of Planning and Research issued a technical advisory calling for lead agencies to "make a good faith effort, based on available information, to calculate, model, or estimate the amount of CO2 and other GHG emissions from a project, including emissions associated with vehicular traffic, energy consumption, water usage, and construction activities." The city's third draft EIR calculated the greenhouse gas (GHG) emissions from the project, including three categories of emissions: Scope 1 included emission sources owned or controlled by the Project; Scope 2 included GHG emissions from energy; and Scope 3 included indirect emissions that are consequences of activities of the project but which are not owned or controlled by the project, including GHG emissions from transportation sources. The city concluded that impacts from Scope 1 and 2 GHG emissions would be less than significant, but Scope 3 emissions would remain significant and unavoidable despite the implementation of recommended mitigation measures. SCOPE, the petitioners, claimed the city did not provide an adequate explanation for this conclusion or provide substantial evidence in support of the finding that the impact would remain significant and unavoidable.

Adequate Explanation for the City's Conclusion

SCOPE had submitted a comment on the EIR and included with its comments a list of potential mitigation measures that had been developed by the Office of Attorney General. SCOPE requested that the city incorporate the measures into the project approval. The city responded to the comment, indicating that certain aspects of the project design were consistent with the attorney general's proposed mitigation measures. The city did not address every mitigation measure in the attorney general's list. 

Citing to Los Angeles Unified School District v. City of Los Angeles (1997) 58 Cal.App.4th 1029, the petitioners claimed the final EIR violated CEQA because it did not specifically consider and discuss the mitigation measures in the Attorney General's letter. In Los Angeles, the petitioner suggested a specific, concrete mitigation measure to mitigate a specific air quality impact, whereas in Santa Clarita, petitioners had attached the attorney general's list of mitigation measures to a letter to the city. The court found that because SCOPE did not single out any specific suggestions from the numerous potential mitigation measures in the attorney general's letter, and the letter itself stated that "the measures cited may not be appropriate for every project," it was unreasonable to impose on the city an obligation to explore each and every measure. 

Substantial Evidence Supports the Finding 

SCOPE also argued there was an absence of evidence to support the city's determination that the mitigation measures set forth in the attorney general's letter were infeasible. SCOPE further claimed that the city's finding that significant cumulative impact on climate change would be unavoidable was unsupported because neither the city's findings nor the FEIR contained any facts or analysis to support this conclusion. 

The court found that substantial evidence did support the city's finding. The court noted the OPR technical advisory was one of the only documents providing guidance on GHG emissions at the time the EIR was prepared. The EIR followed the three steps set forth in the advisory: 1) identify and quantify GHG emissions; 2) assess the significance of the impact on climate change; and 3) if the impact is found to be significant, identify alternatives or mitigation measures.  

The EIR quantified the emissions from the project and found the emissions with respect to Scopes 1 and 2 were insignificant. With respect to Scope 3, the EIR pointed out that emissions from vehicle exhaust are regulated by state and federal governments and are outside the control of the project. The EIR noted that no thresholds had been established, but concluded that it was likely that if a threshold were adopted, the Scope 3 emissions would exceed the threshold. The project included eight mitigation measures which had been introduced to ease the flow of traffic, and thus reduce GHG emissions. As well, the city had committed to comply with new standards requiring the project comply with the city's sustainable policies and transportation demand management program. The court found this to be substantial evidence to support the agency's decision that the EIR complied with CEQA.

3.  Health and Welfare of Neighboring Residents

SCOPE claimed the city failed to proceed in the manner required by law because it balanced the project's perceived benefits against its adverse impacts on neighboring residents. The City of Santa Clarita's uniform development code requires the city find a proposed development will not "adversely affect the health, peace, comfort or welfare of persons residing or working the surrounding area." The city balanced the benefits of the project against the impacts on the surrounding neighborhood in making the required finding. Petitioners claimed the plain language of the section did not permit that type of balancing. 

The court found the plain language of the uniform development code did not foreclose the balancing of the benefits versus the detriments, the city's interpretation of its own ordinance was entitled to great deference, and the ordinance does not limit the factors that may be considered in making the finding. Therefore, the court found that the city proceeded lawfully. 

Conclusion

Practitioners now have support for the decision not to address every mitigation measure thrown at a proposed project. The case should be read with caution, however, because it could easily be distinguished in cases where the list of proposed mitigation measures is more closely tailored to the proposed project. 

The Case:

Santa Clarita Organization for Planning the Environment v. City of Santa Clarita (June 30, 2011, No. B224242) __ Cal.App.4th ___. 

The Attorneys:

Law Offices of Babak Naficy and Babak Naficy for Plaintiff and Appellant.

Carl K. Newton, City Attorney; Burke, Williams & Sorensen, Brian A. Pierik and Amy E. Hoyt for Defendants and Respondents.

Leslie Z. Walker is an attorney with the firm of Abbott & Kinderman, LLP. 

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