League to Save Lake Tahoe Mountain Area v. City of Placer ( 2022 )

Filed 2/14/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
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LEAGUE TO SAVE LAKE TAHOE MOUNTAIN C087102
AREA PRESERVATION FOUNDATION et al.,
(Super. Ct. No. SCV0038666)
Plaintiffs and Appellants,
v.
COUNTY OF PLACER et al.,
Defendants and Respondents;
SIERRA PACIFIC INDUSTRIES et al.,
Real Parties in Interest and
Respondents.
CALIFORNIA CLEAN ENERGY COMMITTEE, C087117
Plaintiff and Appellant, (Super. Ct. No. SCV38578)
v.
COUNTY OF PLACER,
Defendant and Respondent;
SIERRA PACIFIC INDUSTRIES et al.,
Real Parties in Interest and
Respondents.
1
APPEAL from a judgment of the Superior Court of Placer County, Michael W.
Jones, Judge. Affirmed as modified.
Shute, Mihaly & Weinberger, Amy J. Bricker, Rachel B. Hooper, Laura D.
Beaton; and Daniel P. Selmi for Plaintiffs and Appellants League to Save Lake Tahoe,
Mountain Area Preservation Foundation, and Sierra Watch.
Law Office of Eugene Wilson and Eugene S. Wilson for Plaintiff and Appellant
California Clean Energy Committee.
Clayton T. Cook, County Counsel for Defendants and Respondents County of
Placer and Placer County Board of Supervisors.
Remy Moose Manley, Whitman F. Manley, Howard F. Wilkins III, and Nathan O.
George for Real Parties in Interest and Respondents Mountainside Partners, LLC, et al.
These appeals concern Placer County’s approval of a land use specific plan and
rezoning to permit residential and commercial development and preserve forest land near
Truckee and Lake Tahoe. The plaintiffs and appellants contend the County’s
environmental review of the project did not comply with the California Environmental
Quality Act (Pub. Resources, § 21000 et seq. (CEQA)) on numerous grounds, and the
rezoning did not comply with the California Timberland Productivity Act of 1982 (Gov.
Code, § 51100 et seq.). (Statutory section citations that follow are to the Public
Resources Code unless otherwise stated.) The trial court rejected each of plaintiffs’
claims except one, a conclusion which the County and real parties in interest contest in
their cross-appeal.
In C087102, the appellants contend:
(1) The environmental impact report (EIR) violated CEQA by not adequately
describing the Lake Tahoe Basin’s existing air and water quality, and, due to that failure
and the County’s decision not to utilize a vehicle-miles-traveled threshold of significance
such as one adopted by the Tahoe Regional Planning Agency (TRPA), the EIR violated
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CEQA by not adequately analyzing the impacts that project-generated traffic may have
on the Basin’s air quality and Lake Tahoe’s water quality;
(2) The County violated CEQA by not recirculating the final EIR after it revised
the draft EIR to include a new analysis of the project’s impacts on climate and by
mitigating the impact with an invalid mitigation measure; and
(3) The County violated the Timberland Productivity Act by not making certain
findings before immediately rezoning the developable portion of the site.
In their cross-appeal, the County and real parties in interest claim the trial court
erred when it found that the EIR did not adequately address the project’s impacts on
emergency evacuation plans and that substantial evidence did not support the EIR’s
conclusion that the impact would be less than significant.
In C087117, the appellant challenges the EIR’s greenhouse gas emission
mitigation measure. It also contends the EIR violated CEQA by:
(1) Not adequately describing the environmental setting of forest resources or
analyzing the project’s cumulative impacts on forest resources;
(2) Not addressing feasible measures to mitigate the project’s impact on traffic;
(3) Not disclosing the significant impacts that will occur due to the project’s
contribution to widening state route 267; and
(4) Not discussing whether the project could increase its reliance on renewable
energy sources to meet its energy demand.
We affirm both judgments in part.
In C087102, we affirm the judgment except to hold that the analysis of the
project’s impact on Lake Tahoe’s water quality and greenhouse gas emission mitigation
measure 12-2 do not comply with CEQA, and the EIR’s analysis of the project’s impact
on evacuation plans is supported by substantial evidence.
In C087117, we affirm the judgment except to hold that greenhouse gas emission
mitigation measure 12-2 does not comply with CEQA, substantial evidence does not
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support the County’s finding that no additional feasible mitigation measures existed to
mitigate the project’s traffic impacts on state route 267, and the EIR’s discussion of the
project’s energy impacts does not comply with CEQA.
FACTS AND HISTORY OF THE PROCEEDINGS
Real party in interest Sierra Pacific Industries (SPI) owns two large parcels of land
in Martis Valley, an unincorporated area of Placer County between Truckee and Lake
Tahoe. The parcels sit on opposite sides of state route 267, a highway that connects
Truckee to Kings Beach on Lake Tahoe’s north shore. The parcel generally west of route
267, known as the West Parcel, has 1,052 acres. It is southeast of the Northstar
California resort. The East Parcel on the opposite side of route 267 has 6,376 acres.
Both parcels are undeveloped coniferous forest. Both parcels border, and in small
instances cross into, the Lake Tahoe Basin to their south.
The Martis Valley Community Plan designates the West Parcel as Forest. The
parcel is zoned as Timberland Production Zone (TPZ). A TPZ, authorized by the
Timberland Productivity Act, is a land use zoning that restricts the land’s permitted uses
to growing and harvesting timber and other compatible uses. In return, the County
assesses the TPZ land for taxation purposes based on the land’s restricted uses.
The Community Plan designates most of the East Parcel as Forest, and that portion
of the property is also zoned TPZ. However, approximately 670 acres of the East Parcel
are zoned for development of up to 1,360 dwelling units and 6.6 acres of commercial
uses.
In 2006, appellants and conservation groups Sierra Watch and Mountain Area
Preservation Foundation contacted SPI regarding conservation issues in Martis Valley.
The East Parcel was identified as a priority for conservation, as preserving that parcel
from development would connect an estimated 50,000 acres of open space east of route
267. Applicants and the conservation groups met numerous times from 2009 to 2013 to
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explore conservation opportunities. In 2013, they signed an agreement to aid the
conservation and development of both parcels. The agreement was to facilitate
transferring the East Parcel’s development rights to portions of the West Parcel and
preserving all of the East Parcel as permanent open space via purchase of a fee simple
interest or conservation easement.
Although cooperation between the parties ended, SPI and its partners, real parties
in interest Mountainside Partners LLC, and MVWP Development, LLC (collectively the
applicants) applied to the County in 2013 for a specific plan they believed was consistent
with the primary terms of the agreement. The proposed specific plan, the Martis Valley
West Parcel Specific Plan, would amend the Martis Valley Community Plan and related
zoning to (1) allow development of up to 760 residential units and 6.6 acres of
commercial use on a 775-acre portion of the West Parcel and withdraw those lands from
the TPZ zone; and (2) designate all of the East Parcel, including the 670 acres zoned for
development under the existing community plan, as Forest and TPZ. Upon approval of
the specific plan, applicants would sell the East Parcel for conservation purposes or place
the land in a conservation easement in perpetuity.
The specific plan and its related zoning and other legislative approvals, and not
any approvals of actual development, comprise the CEQA project before us. The
immediate rezoning out of TPZ was also subject to the requirements and procedures of
the Timberland Productivity Act. (Gov. Code, § 51133.) The County issued a notice of
preparation that it and TRPA would prepare a joint EIR/environmental impact statement
(EIS) under CEQA and the National Environmental Protection Act. TRPA would
participate because small portions of the two parcels lie within the Lake Tahoe Basin, the
area of land subject to TRPA’s land use regulatory authority.
In response to comments to the notice of preparation, applicants revised the
proposed specific plan. In the revised plan, applicants removed the acreage within the
Lake Tahoe Basin and TRPA’s jurisdiction from the scope of the project. Applicants
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also reduced the land that could be developed on the West Parcel from 775 acres to 662
acres, but they stated they would develop the same number of dwelling units (760) and
the same amount of commercial space (6.6 acres) as originally planned. The
undeveloped portions of the West Parcel would remain Forest and TPZ. As a result of
this change, TRPA would no longer be required to approve the project, and the County
proceeded to prepare a program EIR as the sole lead agency.
The County released a draft EIR in October 2015 and a final EIR in May 2016.
After two public hearings, the planning commission by a vote of five to two
recommended the County deny the proposed specific plan.
After additional public hearings, the board of supervisors on October 11, 2016,
certified the EIR and approved the specific plan by a vote of four to one. The approvals
also included a statement of findings of fact and overriding considerations, a mitigation
monitoring and reporting plan, the proposed rezonings, and a development agreement.
The board of supervisors also found that the immediate rezoning of the West Parcel out
of the TPZ was consistent with the purposes of the Timberland Productivity Act and was
in the public interest.
Plaintiff and appellant League to Save Lake Tahoe, along with the Mountain Area
Preservation Foundation and Sierra Watch (the parties refer to these appellants
collectively as Sierra Watch) and the California Clean Energy Committee (the
Committee) filed separate petitions for writ of mandate and complaints contending the
County violated CEQA and the Timberland Productivity Act in approving the project.
The trial court consolidated the actions for hearing. It found in favor of the County on all
claims except the EIR’s analysis of the project’s impacts on adopted emergency response
and evacuation plans. The court ordered that a writ of mandate issue directing the
County to vacate its certification of the EIR and approval of the project as they pertained
to emergency evacuations for wildfires and other emergencies. The court also ordered
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the County to suspend all project approvals and activities that could result in any change
or alteration to the physical environment.
Sierra Watch and the Committee appeal, and the County and applicants cross
appeal. (For ease of reference, and because the County fully joins in the applicants’
briefs, we refer to the County and applicants collectively as the County unless the context
requires otherwise.) We consolidated the appeals for purposes of the record, argument,
and decision. 1
SIERRA WATCH’S APPEAL
(C087102)
Sierra Watch contends the County certified the EIR and approved the project in
violation of CEQA and the Timberland Productivity Act. It raises the following
contentions:
(1) The EIR violated CEQA by not adequately describing the Lake Tahoe Basin’s
current physical conditions as part of describing the project’s regional environmental
setting, and that omission and the decision not to utilize a threshold of significance based
on vehicle miles travel in the Basin resulted in the EIR not adequately analyzing the
impacts increased traffic generated by the project may have on the Basin’s air quality and
Lake Tahoe’s water quality;
(2) The County violated CEQA by not recirculating the final EIR after it revised
the draft EIR to include a new analysis of the project’s impacts on climate and also by not
1 The County’s request for judicial notice is granted in part. Of the request’s
exhibits, we grant judicial notice of Exhibit A, TRPA’s 2012 Regional Plan Update, and
Exhibit F, Stats. 1981, ch. 1095, §§ 1-10. Judicial notice is denied for all other exhibits.
Each concerns a matter that occurred after the County approved the project and is outside
the administrative record. Evidence not contained in the record of an agency’s quasi-
legislative CEQA proceedings is not admissible with exceptions not applicable here.
(Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 565, 573-574.)
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determining whether the mitigation measures proposed in the draft EIR would mitigate
the climate impacts which the new analysis had discovered; and
(3) The County violated the Timberland Productivity Act by not making certain
findings before rezoning the developable portion of the West Parcel from TPZ
immediately to zoning that permits the proposed development.
We turn first to the CEQA contentions.
I
Overview of CEQA
“CEQA was enacted to (1) inform the government and public about a proposed
activity’s potential environmental impacts; (2) identify ways to reduce, or avoid, those
impacts; (3) require project changes through alternatives or mitigation measures when
feasible; and (4) disclose the government’s rationale for approving a project. (California
Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th
369, 382 [].) CEQA embodies a central state policy requiring ‘state and local
governmental entities to perform their duties “so that major consideration is given to
preventing environmental damage.” ’ (Friends of the Eel River v. North Coast Railroad
Authority (2017) 3 Cal.5th 677, 711, quoting § 21000, subd. (g).) Accordingly, CEQA
prescribes how governmental decisions will be made whenever an agency undertakes,
approves, or funds a project. (Union of Medical Marijuana Patients, Inc. v. City of San
Diego (2019) 7 Cal.5th 1171, 1185 [].)” (Protecting Our Water and Environmental
Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 488.)
If the approving agency determines that the project may have a significant effect
on the environment, as the County did here, the agency, referred to as a lead agency, must
prepare an EIR before approving the project. (§§ 21100, subd. (a), 21151, subd. (a);
Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, 286.) “The purpose of an EIR is
to inform the agency and the public, in detail, about the effect the project is likely to have
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on the environment and the ways available to minimize that impact. ([] § 21061.)”
(Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 184-185, fn.
omitted.)
The four primary components of an EIR are (1) the project description. This
discloses the activity proposed for approval. (Cal. Code Regs., tit. 14, § 15124
(Guidelines).) (2) A description of the project’s local and regional environmental setting.
This establishes a baseline for determining the significance of potential environmental
impacts. (Guidelines, § 15125.) (3) Discussion and analysis of the project’s potentially
significant impacts to the physical environment, including cumulative impacts when
considering the project’s impacts in light of other pending or planned projects’ impacts.
(§ 21100, subd. (b); Guidelines, §§ 15126.2, subd. (a), 15130.) (4) Discussion of feasible
mitigation measures and project alternatives that could lessen or avoid the project’s
significant environmental effects. (§ 21100, subd. (b)(3), (4); Guidelines, §§ 15126.4,
subd. (a)(1), 15126.6; see Kostka & Zischke, Practice Under the Cal. Environmental
Quality Act (2d ed. CEB) § 11.2.)
If the EIR identifies significant effects which the project will have on the
environment, “the lead agency may not approve the project unless it finds that changes
have been made in the project to avoid these effects, or, if the mitigation measures or
alternatives identified in the EIR are not feasible, there are overriding benefits that
outweigh the impact on the environment. ([] § 21081.)” (Friends of Sierra Madre v. City
of Sierra Madre, supra, 25 Cal.4th at p. 185.) 2
2 Regarding the “Guidelines,” the Resources Agency promulgated the State CEQA
Guidelines for implementing CEQA. The California Supreme Court states, “These
Guidelines . . . are ‘central to the statutory scheme’; they ‘serve to make the CEQA
process tractable for those who must administer it, those who must comply with it, and
ultimately, those members of the public who must live with its consequences.’
(California Building Industry Assn. [v. Bay Area Air Quality Management Dist.,] supra,
62 Cal.4th at pp. 385, 384.) Although we have ‘not [yet] decided . . . whether the
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II
Lake Tahoe Basin’s Air Quality and Water Quality
Sierra Watch argues that because the project traffic’s impacts on the Tahoe
Basin’s air quality and Lake Tahoe’s water quality were potentially significant effects on
the environment and on a unique environmental resource, the EIR was obligated to, but
did not (1) describe the Tahoe Basin’s existing air quality and the lake’s water quality as
part of its description of the project’s regional environmental setting, nor (2) analyze the
project’s impacts on the Basin’s air quality and water quality and determine their
significance individually and cumulatively. Sierra Watch also criticizes the County’s
decision not to utilize a threshold standard of significance established by TRPA for
regulating Basin air and water quality as a method for analyzing the existing setting and
evaluating the project’s impacts on the Basin.
The draft EIR provided an analysis of air quality in the Tahoe-Truckee region
generally. It concluded the project’s impacts individually were less than significant and,
when mitigated, were cumulatively less than significant. The draft EIR did not address
Lake Tahoe’s water quality. In the final EIR, the County recognized the TRPA threshold
had been used by TRPA as an indicator of vehicle emission impacts on Basin air and
water quality. It said the project’s in-Basin traffic would not cause the threshold to be
exceeded, but it did not utilize the threshold to determine whether the potential impact
Guidelines are regulatory mandates or only aids to interpreting CEQA’ (Laurel Heights
[Improvement Assn. v. Regents of University of California (1988)] 47 Cal.3d [376,] 391,
fn. 2 [(Laurel Heights I)], we have nevertheless concluded that the Guidelines are owed
deference insofar as they reflect the agency’s specialized knowledge and expertise and
were adopted through a process of notice and public comment under the California
Administrative Procedure Act. (California Building Industry Assn., supra, 62 Cal.4th at
pp. 381, 389-390.) Thus, we afford the Guidelines ‘great weight’ unless a provision is
‘clearly unauthorized or erroneous under the statute.’ (Id. at p. 381.)” (Friends of
College of San Mateo Gardens v. San Mateo County Community College Dist. (2016)
1 Cal.5th 937, 954.)
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was significant. It also stated that any impacts to Lake Tahoe’s water quality from
project-generated traffic were accounted for in a federally-approved water pollution
abatement program.
Sierra Watch claims these analyses did not comply with CEQA’s substantive and
procedural requirements and were not supported by substantial evidence.
A. Background
Our resolution of this contention requires a detailed explanation of its factual
background. To understand Sierra Watch’s argument, we first introduce the threshold of
significance adopted by TRPA which Sierra Watch claims the County should have
utilized or one similar to it. We also describe a multijurisdictional program imposed
under the federal Clean Water Act to restore Lake Tahoe’s deep-water transparency
known as the Lake Tahoe Total Maximum Daily Load (TMDL), the pollution abatement
program that the County briefly relied on in the final EIR. We then describe how the
County addressed the project’s potential impacts on the Tahoe Basin’s air quality and
water quality in the scoping process, the draft EIR, and the final EIR.
1. TRPA thresholds of significance
TRPA is an agency created by the California and Nevada legislatures to coordinate
and regulate development in the Lake Tahoe Basin and to conserve its natural resources.
(Gov. Code, § 66801, art. I, subds. (a), (b); Tahoe-Sierra Preservation Council, Inc. v.
Tahoe Regional Planning Agency (2002) 535 U.S. 302, 309 [152 L.Ed.2d 517].) Its
governing Compact directed TRPA to develop environmental quality standards for the
Tahoe Basin known as “environmental threshold carrying capacities.” (Id. at p. 310;
Gov. Code, § 66801, art. V, subd. (b).) An environmental threshold carrying capacity is
“an environmental standard necessary to maintain a significant scenic, recreational,
educational, scientific, or natural value of the region or to maintain public health and
safety within the region.” (Gov. Code, § 66801, art. II, subd. (i).) TRPA also adopted a
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regional plan to implement and maintain the environmental threshold carrying capacities
while providing for orderly growth and development.
The TRPA threshold Sierra Watch champions in this action is the Vehicle Miles
Traveled (VMT) threshold. The VMT threshold is a modeled measurement of the vehicle
miles traveled in the Tahoe Basin by passenger vehicles on peak summer days. It was
adopted as a way to meet TRPA’s air quality goals and later used also as an indicator of
water quality. The VMT threshold calls for reducing in-Basin VMT to 10 percent below
1981 peak levels of VMT. At the time of the project’s environmental review, the
threshold required VMT in the Basin not to exceed 2,067,600.
Development projects in the Tahoe Basin approved by TRPA must mitigate all
traffic and air quality impacts to levels consistent with the environmental threshold
carrying capacities, including the VMT threshold. In addition, new projects must offset
these impacts by paying air quality mitigation fees based on the number of daily vehicle-
trips the projects generate.
2. The Lake Tahoe TMDL
Lake Tahoe’s famed transparency has significantly declined since monitoring
began in the 1960s. Scientists have determined that three pollutants are primarily
responsible for the loss of transparency: fine sediment particles, phosphorus, and
nitrogen. Runoff from the Basin’s urban and forested lands and atmospheric deposition
of pollutants directly on the lake’s surface are the largest sources of these pollutants.
Urban stormwater runoff is the largest source of fine sediment particles, while
atmospheric deposition is the largest source of nitrogen in the lake. Motor vehicles
contribute to the formation of fine sediment particles by creating sediment and dust, and
they and airplanes are the primary sources of atmospheric nitrogen.
The federal Clean Water Act requires states to adopt water quality standards for
polluted water bodies and to implement actions to meet those standards. Lake Tahoe has
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not met these standards, and as a result, the lake is listed under the Clean Water Act as
impaired by the input of fine sediment particles, phosphorus, and nitrogen.
Section 303(d) of the Clean Water Act requires states to establish total maximum
daily loads (TMDLs) for impaired waters. A TMDL is a plan approved by the federal
Environmental Protection Agency to reduce pollution in impaired water bodies. It
identifies numeric targets based upon water quality objectives, and it specifies the
maximum amounts of pollutants a water body can receive and still remain in attainment
of the water quality objectives. A TMDL also identifies the amount of reductions in
pollutants that are needed to attain the water quality objectives, and it sets forth an
implementation plan to achieve those reductions.
The Lake Tahoe TMDL was finalized in 2010 by the California Regional Water
Quality Control Board, Lahontan Region, and the Nevada Department of Environmental
Protection, and it was approved by the federal Environmental Protection Agency in 2011.
It established a transparency standard for the lake, and it determined the amounts of
existing loads of fine sediment particles, phosphorus, and nitrogen that had to be reduced
to attain that standard. It also set forth an implementation plan for agencies to implement
to achieve those reductions.
To achieve the transparency standard, the TMDL focused on reducing fine
sediment particle loading from runoff through improvements to stormwater controls, as
that provided the largest and most cost-efficient opportunity to reduce fine sediment
particle and phosphorus loads. The TMDL did not propose actions to reduce atmospheric
loads of nitrogen to the lake caused by mobile sources. Instead, the TMDL relied on
TRPA’s air quality programs and transportation plans to manage the loads of nitrogen
from vehicles.
The County is one of the agencies assigned to implement the TMDL within its
boundaries and reduce its share of the pollutants in its stormwater runoff.
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3. EIR scoping process
With a basic understanding of TRPA’s VMT threshold carrying capacity and the
Lake Tahoe TMDL, we can turn to the project’s environmental review. As stated earlier,
when the applicants first applied for the specific plan, the project included acreage that
was within TRPA’s jurisdiction. As a result, both the County and TRPA intended to
prepare a joint EIR/EIS to evaluate the project. In its notice of preparation of the
EIR/EIS, the County and TRPA stated the EIR would evaluate the effects the project may
have on TRPA’s environmental threshold carrying capacities. The EIR’s air quality
analysis would assess “the project’s cumulative contribution to regional air quality.”
Commenting on the notice of preparation, environmental organizations including
appellant League to Save Lake Tahoe stated the project would create more traffic and
VMT on Tahoe Basin roadways and increase air and water pollution in the Basin. They
asked the County to examine these impacts in the EIR/EIS.
After applicants removed the acreage within TRPA’s jurisdiction from the project,
the project no longer needed TRPA’s approval and TRPA was no longer a lead agency on
the project’s environmental review. The EIR states that because the project was no
longer within TRPA’s jurisdiction, there was no requirement that the EIR apply or the
project satisfy TRPA’s environmental threshold carrying capacities.
Due to the change in the project, the County in 2015 revised its notice of
preparation of the EIR. The new notice deleted the earlier statement that the EIR would
evaluate the project’s effects on TRPA’s environmental threshold carrying capacities.
The notice said nothing about reviewing the project’s potential impacts to Lake Tahoe’s
water quality. The notice, however, continued to state that the EIR would evaluate the
project’s cumulative contribution to regional air quality.
Commenting on the revised notice of preparation, League to Save Lake Tahoe and
another environmental organization stated the project would likely increase the amount of
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traffic and VMT in the Tahoe Basin and again asked that those impacts be addressed in
the EIR.
4. Draft EIR’s analysis of Basin air and water quality impacts
The draft EIR did not take up the environmental groups’ request. It did not utilize
Basin VMT to describe the Tahoe Basin’s air quality or Lake Tahoe’s water quality as
part of setting forth the project’s regional setting. The draft EIR did discuss the project’s
impact on regional air quality, including vehicle emissions caused by the project, but it
did not address a potential impact that in-Basin vehicle traffic generated by the project
could have specifically on Tahoe Basin’s air quality and Lake Tahoe’s water quality.
The draft EIR analyzed the project’s post-construction (or operational) long-term
impacts to air quality in the Truckee-Tahoe area generally. It expressed the existing
regional conditions by relying primarily on four years of available air quality
measurements taken from monitoring stations in Truckee (for ozone and PM2.5) and
South Lake Tahoe (for PM10). 3 Data from monitoring stations in Kings Beach and Tahoe
City for ozone and PM2.5 were considered not to be of sufficient quality to determine
regulatory compliance.
The draft EIR also described the existing condition by means of emissions
inventories, ambient air quality standards set by the state and federal government, and the
3 Ozone is formed through chemical reactions between emissions of reactive
organic gases (ROG) and oxides of nitrogen (NOx) in the presence of sunlight. NOx
result from the combustion of fuels. PM10 refers to respirable particulate matter with an
aerodynamic diameter of 10 micrometers or less. PM10 consists of particles emitted
directly into the air such as dust, soot and smoke from mobile and stationary sources,
construction operations, fires and natural wind-blown dust, and particulate matter formed
in the atmosphere by reaction of gaseous precursors. Fine particulate matter (PM2.5) is a
subgroup of smaller particles that have an aerodynamic diameter of 2.5 micrometers or
less.
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status of attaining those standards for criteria pollutants 4 in the Placer County portion of
the Mountain Counties Air Basin, the regulatory air basin in which the project and,
according to the applicants, the Tahoe Basin are located. Ozone, NO2, and PM are in
nonattainment or unclassified in the Placer County portion of the Mountain Counties Air
Basin. Mobile sources such as vehicles are the largest contributor of nitric acid.
The draft EIR concluded that any impact the project individually would have
during its operation on regional air quality, including from vehicle emissions, was less
than significant. The project’s emissions of ROG, NOx, or PM10 would not exceed
thresholds of significance adopted by the Placer County Air Pollution Control District for
individual projects. The portions of the Mountain Counties Air Basin and the Lake
Tahoe Basin that are within Placer County are within the jurisdiction of the Placer
County Air Pollution Control District. (Health & Saf. Code, § 40002.)
However, the project’s cumulative emissions of ROG and NOx would exceed the
Air Pollution Control District’s threshold of significance for cumulative impacts and
would be cumulatively significant. To mitigate this impact, the EIR proposed that the
County require future developers to take actions and pay mitigation fees to ensure project
NOx emissions did not exceed the threshold. As mitigated, this cumulative impact would
be less than significant.
Regarding water quality, the draft EIR focused on potential effects to the Truckee
River Basin, as the project site drains northward ultimately to the Truckee River. The
draft EIR did not discuss Lake Tahoe’s existing water quality or any potential impacts
that project-generated traffic may have on the lake’s transparency.
4 Concentrations of ozone, carbon monoxide (CO), nitrogen dioxide (NO2), sulfur
dioxide (SO2), PM10, PM2.5, and lead are the criteria air pollutants.
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5. TRPA’s comment on the draft EIR
TRPA commented on the draft EIR. It stated the project, if implemented without
mitigation, would significantly affect Lake Tahoe’s physical environment through
increased vehicle trips into, and the amount of vehicle miles traveled within, the Tahoe
Basin. TRPA estimated the project would generate 1,394 daily in-Basin trips and
increase Basin VMT by between 16,235 and 21,311. Those trips and the additional VMT
would add to the cumulative impacts from other projects under construction in Placer
County.
TRPA explained how it would have analyzed these impacts had the project been
developed in the Tahoe Basin under its regulatory authority. It stated it used both VMT
and the number of vehicle trips as standards for determining the significance of
environmental impacts. The project could increase in-basin VMT by 0.2 to 1 percent,
contributing along with other projects to exceedance of TRPA’s VMT threshold.
The project would also exceed TRPA’s vehicle trip standard of significance.
Under this standard, a project that would generate more than 200 daily vehicle trips in the
Basin is presumed to create a significant impact, and applicants for such in-Basin projects
must prepare an analysis of potential traffic and air quality impacts. In addition, TRPA
requires all new in-Basin projects, including those that generate less than 200 daily
vehicle trips, to offset their impacts by paying an air quality mitigation fee based on the
number of vehicle trips the project will generate.
TRPA stated that its staff and County staff had engaged in productive discussions
on how to address the project’s in-Basin impacts. Their discussions had focused on two
measures: traffic impact fees to implement transportation and mass transit capital
improvement programs, and the formation of zones of benefit to provide ongoing transit
funding. TRPA stated the project’s participation in these two funding mechanisms would
offset the vehicle trips and the VMT the project would generate in the Basin.
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6. Final EIR’s analysis and response to comments
Responding to comments on the draft EIR, the County in the final EIR addressed
TRPA’s VMT threshold, and it briefly addressed impacts to Lake Tahoe’s water quality.
Regarding VMT, the County stated that because the project is not within TRPA’s
jurisdiction, it did not use TRPA’s thresholds as standards of significance in the EIR.
Nevertheless, addressing VMT, the final EIR stated TRPA had posited that VMT was an
indicator of air quality and water quality. Increased VMT would result in increased
traffic congestion, increased nitrate loading into the atmosphere, and subsequent
deposition into Lake Tahoe. It would also result in increased airborne concentration of
particulate matter.
The project would generate approximately 1,394 daily vehicle trips to and from
the Tahoe Basin, generating approximately 13,745 VMT within the Basin on a peak
travel day. TRPA had estimated in 2010 that existing Basin VMT was 1,984,600, below
the threshold of 2,067,600 VMT. The project’s VMT would increase Basin VMT to
1,998,345, or by about 0.7 percent. The additional traffic from the project would not
result in Basin VMT exceeding TRPA’s VMT threshold. The final EIR did not discuss
whether the cumulative impact of the project’s VMT along with other current and future
development projects’ VMT would cause Basin VMT to exceed TRPA’s threshold.
The final EIR reviewed six other EIRs/EISs for recent projects within and nearby
the Tahoe Basin to determine how those documents had used and interpreted TRPA’s
VMT threshold. Of the four projects within the Basin, only one had used the VMT
threshold as a standard of significance. Two others used TRPA’s standard of 200 daily
trips to determine the projects’ impacts were significant, and the fourth used a standard of
1,150 VMT. Of the two projects outside the Basin, one found its traffic impacts were not
significant because its Basin VMT would not exceed the TRPA threshold; the other did
not evaluate the significance of its VMT in the Basin. The final EIR stated these
18
documents did not provide clear guidance in determining whether the project’s
contribution to Basin VMT would be significant. The project’s 0.7 percent increase in
Basin VMT was higher than a 0.03 percent increase from another project whose EIR
stated the increase was less than significant, but the project-generated VMT would not
cause the TRPA VMT threshold to be exceeded.
Without resolving whether the project’s increase in Basin VMT was or would
cause a significant impact individually or cumulatively, the final EIR stated that in any
event, permanent transit funding required under mitigation measure 10-5 to mitigate the
project’s impact on area transit services would reduce VMT impacts in the Basin. This
fee paralleled the fee imposed by TRPA ordinances on development projects in the Basin
for reducing air emissions from vehicular travel.
The final EIR also briefly addressed the project’s potential to impact Lake Tahoe’s
water quality by referencing the Lake Tahoe TMDL. A commenter on the draft EIR had
expressed concern that project-related traffic would increase air pollution and sediment
deposition in Lake Tahoe. In response, the County repeated that it had determined the
project’s operation as mitigated would not exceed the Placer County Air Pollution
Control District’s significance thresholds individually and cumulatively. The County
stated that the majority of vehicle-related pollutants that enter Lake Tahoe are from
vehicles within the Tahoe Basin. Since 65-70 percent of the traffic that the project would
generate would not travel into the Basin, the airborne fine sediment produced from that
traffic would not reach Lake Tahoe.
As for the 30-35 percent of project-generated vehicle trips that would enter the
Basin, the County stated that those trips “would be consistent with the total vehicle miles
travelled that were accounted for in the development of the Lake Tahoe Total Maximum
Daily Load pollutant load reduction strategy. As such,” the final EIR continued, “all
vehicle trips up to the VMT threshold standard have already been accounted for in a
science-based regulatory program that provides a comprehensive strategy to achieve Lake
19
Tahoe water quality standards.” The final EIR’s list of references included the TMDL’s
Pollutant Reduction Opportunity Report, dated March 2008, and provided a website
where the document could be accessed on the Internet. These statements were the EIR’s
sole references to, and explanations of, the Lake Tahoe TMDL.
B. Discussion
Sierra Watch contends the EIR did not sufficiently describe the physical
characteristics of the Lake Tahoe Basin’s existing air quality and Lake Tahoe’s water
quality as part of describing the project’s regional setting, nor did it adequately analyze
the project’s impacts to those resources. It criticizes the County for not using TRPA’s
VMT threshold or the science behind it to describe the Basin’s setting and the project’s
impacts on the Basin.
Specifically, Sierra Watch claims the EIR did not meaningly describe the Basin’s
current physical conditions, and in particular, its existing air quality and water quality.
Although the EIR discussed the existing air quality in the Mountain Counties Air Basin,
that discussion does not include the Lake Tahoe Basin as the latter is not within the
Mountain Counties Air Basin. Sierra Watch argues that except for the sole measurement
of PM10 taken from the monitoring station in South Lake Tahoe, the draft EIR did not
discuss the Basin’s existing air quality or VMT, and it claims the PM10 measurement was
inadequate as it lacked contextual information. The draft EIR also did not describe Lake
Tahoe’s existing transparency and water quality.
Sierra Watch claims that the final EIR did not correct these omissions. The final
EIR provided the VMT in the Basin as of 2010, but Sierra Watch contends this isolated
figure is outdated and does not meet CEQA’s demand for a description of the physical
conditions as of the time environmental review begins. Sierra Watch also claims that the
final EIR’s reliance on the Lake Tahoe TMDL was a red herring because the EIR was
20
still required to describe the existing physical setting and evaluate impacts, the TMDL
notwithstanding.
Sierra Watch further claims that the EIR’s inadequate discussion of the regional
setting led to an inadequate discussion of the project’s impacts on the Tahoe Basin. The
draft EIR allegedly did not discuss the project’s individual or cumulative impacts on the
Tahoe Basin’s air quality or Lake Tahoe’s water quality. It provided no thresholds to
assess those impacts and little reference to programs of other agencies, such as TRPA’s
thresholds of significance, that protect those resources. As a result, the draft EIR did not
reach any conclusion about the significance of the project’s impacts on the Basin or the
Lake and thus did not identify any mitigation for those impacts.
Sierra Watch acknowledges that the final EIR determined that in-Basin traffic
generated by the project would not cause the Basin’s total VMT to exceed the VMT
threshold. However, Sierra Watch argues that the final EIR did not adopt the VMT
threshold, or any other threshold, to assess the significance of the project’s in-Basin
traffic on the Basin’s air quality or the lake’s water quality, individually or cumulatively.
1. Legal background and standard of review
CEQA requires an agency to prepare an EIR “whenever it can be fairly argued on
the basis of substantial evidence that the project may have significant environmental
impact.” (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75.) The EIR must
identify and describe a proposed project’s significant and potentially significant effects
on the environment. (§ 21100, subd. (b); Guidelines, § 15126.2(a).) A significant effect
is defined as a substantial or potentially substantial adverse change in the environment.
(§§ 21068, 21100(d).) The environment consists of the physical conditions “which exist
within the area which will be affected by a proposed project,” including air and water.
(§ 21060.5.)
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To determine whether the project will substantially affect the environment, the
EIR first must describe the existing physical conditions in the project’s vicinity.
(Guidelines, § 15125, subd. (a).) The EIR’s description of the existing environmental
conditions establishes “a baseline against which predicted effects can be described and
quantified.” (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority
2013) 57 Cal.4th 439, 447.)
The EIR must describe the existing physical conditions from both a local and
regional perspective. (Guidelines, § 15125, subd. (a)(1).) “Knowledge of the regional
setting is critical to the assessment of environmental impacts. Special emphasis should
be placed on environmental resources that are rare or unique to that region and would
be affected by the project. The EIR must . . . permit the significant effects of the project
to be considered in the full environmental context.” (Guidelines, § 15125, subd. (c),
italics added.)
The scope and detail of an EIR’s discussion of the regional environmental setting
is driven by the scope and extent of the project’s potential impacts. “The description of
the environmental setting shall be no longer than is necessary to provide an
understanding of the significant effects of the proposed project and its alternatives.”
(Guidelines, § 15125, subd. (a).) The environment to be considered is “the area in which
significant effects would occur either directly or indirectly as a result of the project.”
(Guidelines, § 15360.) The description must allow the reader to assess and analyze the
project’s potential impacts. (County of Amador v. El Dorado County Water Agency
(1999) 76 Cal.App.4th 931, 953-954.) “Specific information about particular
characteristics of the environmental setting may be required when necessary to determine
the significance of an impact.” (Kostka & Zischke, supra, § 12.17.)
After establishing the existing environmental setting, the lead agency assesses a
proposed project’s potential impact on the environment by examining in the EIR the
changes that would occur to the existing physical conditions if the project were
22
implemented. (Guidelines, § 15126.2, subd. (a).) “The fundamental goal of an EIR is to
inform decision makers and the public of any significant adverse effects a project is likely
to have on the physical environment.” (Neighbors for Smart Rail v. Exposition Metro
Line Construction Authority, supra, 57 Cal.4th at p. 447.)
All phases of the project must be considered. (Guidelines, § 15126.) The EIR
must describe the project’s direct and reasonably foreseeable indirect environmental
effects and analyze them in both the short-term and the long-term. (Guidelines,
§§ 15126.2, subd. (a); 15064, subd. (d).) It should emphasize the specific effects in
proportion to their severity and their probability of occurrence. (Guidelines, § 15143.)
The EIR must also analyze the project’s cumulative impacts. A cumulative impact
on the environment is an impact created as a result of the combination of the project’s
impacts with other projects causing related impacts. (Guidelines, § 15130, subd. (a)(1).)
The EIR must analyze a project’s cumulative impacts when the project’s incremental
effect is cumulatively considerable. (Guidelines, § 15130.)
After examining a potential adverse impact, the lead agency must determine in the
EIR whether the impact should be classified as significant or less than significant.
(Guidelines, § 15064, subd. (b)(1).) This determination is important, as the lead agency
must describe mitigation measures in the EIR for each potentially significant
environmental impact it identifies. (§ 21100, subd. (b)(3); Guidelines, § 15126.4.) The
EIR must also describe a reasonable range of alternatives to the project that eliminate or
reduce significant environmental impacts. (Guidelines, § 15126.6, subds. (a)-(b).)
The lead agency’s determination of an adverse impact’s significance “calls for
careful judgment” and must be based to the extent possible on scientific and factual data.
(Guidelines, § 15064, subd. (b).) The lead agency has discretion to formulate standards
of significance to make this determination. (Clover Valley Foundation v. City of Rocklin
(2011) 197 Cal.App.4th 200, 243.) These standards may be based on, among other
sources, quantitative, qualitative, or performance-level thresholds of significance adopted
23
by the lead agency or performance or significance standards adopted or recommended by
regulatory agencies. (Guidelines, § 15064.7.)
If the lead agency determines that a possible significant effect will not be
significant and therefore not discussed in detail in the EIR, the EIR must contain a
statement explaining the reasons for this determination. (Guidelines, § 15128.)
We review an agency’s compliance with CEQA when making a quasi-legislative
decision, such as approving a specific plan, for a prejudicial abuse of discretion. “Abuse
of discretion is established if the agency has not proceeded in a manner required by law
or if the determination or decision is not supported by substantial evidence.” (§ 21168.5;
Western States Petroleum Assn. v. Superior Court, supra, 9 Cal.4th at p. 568.)
“In a CEQA case, the appellate court’s review ‘is the same as the trial court’s: [It]
reviews the agency’s action, not the trial court’s decision; in that sense appellate judicial
review under CEQA is de novo.’ (Vineyard Area Citizens for Responsible Growth, Inc.
v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427.) The reviewing court
independently determines whether the record ‘demonstrates any legal error’ by the
agency and deferentially considers whether the record ‘contains substantial evidence to
support [the agency’s] factual determinations.’ (Ibid.) . . . If the agency’s determination
‘involves pure questions of law, we review those questions de novo.’ ([Sierra Club v.]
County of Sonoma [(2017)] 11 Cal.App.5th [11,] 24.)” (Protecting Our Water and
Environmental Resources v. County of Stanislaus, supra, 10 Cal.5th at p. 495.)
We review an EIR’s description of the existing environmental setting for
substantial evidence. “[A]n 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 . . . for support by substantial evidence.” (Communities for a
Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310,
328.) Nonetheless, the California Supreme Court “insist[s] that CEQA analysis employ a
realistic baseline that will give the public and decision makers the most accurate picture
24
practically possible of the project’s likely impacts.” (Neighbors for Smart Rail v.
Exposition Metro Line Construction Authority, supra, 57 Cal.4th at p. 449.)
We also review an EIR’s determination of a potential impact’s significance for
substantial evidence. (Guidelines, § 15064, subd. (f).) “ ‘[A] lead agency has the
discretion to determine whether to classify an impact described in an EIR as
“significant,” depending on the nature of the area affected.’ ” (Clover Valley Foundation
v. City of Rocklin, supra, 197 Cal.App.4th at p. 243, quoting Eureka Citizens for
Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 375.)
For purposes of CEQA, substantial evidence means “enough relevant information
and reasonable inferences from this information that a fair argument can be made to
support a conclusion, even though other conclusions might also be reached.”
(Guidelines, § 15384, subd. (a); Laurel Heights I, supra, 47 Cal.3d at pp. 392-393.) We
presume the lead agency’s determination is correct and resolve reasonable doubts in favor
of the agency’s decision. The project opponents must establish that no substantial
evidence supports the determination. (State Water Resources Control Bd. Cases (2006)
136 Cal.App.4th 674, 723.)
We apply a mixed standard of review to determine the adequacy of an EIR’s
discussion of an impact. “The determination whether a discussion is sufficient is not
solely a matter of discerning whether there is substantial evidence to support the agency’s
factual conclusions. [¶] The ultimate inquiry, as case law and the CEQA guidelines
make clear, is whether the EIR includes enough detail ‘to enable those who did not
participate in its preparation to understand and to consider meaningfully the issues raised
by the proposed project.’ [Citations.] The inquiry presents a mixed question of law and
fact. As such, it is generally subject to independent review. However, underlying factual
determinations—including, for example, an agency’s decision as to which methodologies
to employ for analyzing an environmental effect—may warrant deference. [Citations.]
Thus, to the extent a mixed question requires a determination whether statutory criteria
25
were satisfied, de novo review is appropriate; but to the extent factual questions
predominate, a more deferential standard is warranted.” (Sierra Club v. County of Fresno
(2018) 6 Cal.5th 502, 515-516 (County of Fresno).)
Also, whether an EIR has omitted information that CEQA requires to be included
is a procedural question subject to de novo review. (Banning Ranch Conservancy v. City
of Newport Beach (2017) 2 Cal.5th 918, 935 (Banning Ranch).)
“[I]n reviewing an EIR’s discussion, we do not require technical perfection or
scientific certainty: ‘ “ ‘[T]he courts have looked not for an exhaustive analysis but for
adequacy, completeness and a good-faith effort at full disclosure.’ ” ’ (California Native
Plant Society v. City of Santa Cruz [(2009)] 177 Cal.App.4th [957,] 979; accord Laurel
Heights I, supra, 47 Cal.3d at p. 406; see Guidelines, § 15151 [‘An evaluation of the
environmental effects of a proposed project need not be exhaustive, but the sufficiency of
an EIR is to be reviewed in the light of what is reasonably feasible’].)” (County of
Fresno, supra, 6 Cal.5th at p. 515.)
If we conclude the EIR does not satisfy CEQA, we must determine if the error is
prejudicial. “An omission in an EIR’s significant impacts analysis is deemed prejudicial
if it deprived the public and decision makers of substantial relevant information about the
project’s likely adverse impacts. Although an agency’s failure to disclose information
called for by CEQA may be prejudicial ‘regardless of whether a different outcome would
have resulted if the public agency had complied’ with the law (§ 21005, subd. (a)), under
CEQA ‘there is no presumption that error is prejudicial’ ([id.], subd. (b)). Insubstantial
or merely technical omissions are not grounds for relief.” (Neighbors for Smart Rail v.
Exposition Metro Line Construction Authority, supra, 57 Cal.4th at p. 463 [no prejudicial
error where compliance with CEQA would not have produced any substantially different
information].)
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2. Sufficiency of the EIR’s analysis
Initially, we disagree with Sierra Watch’s sweeping assertion that the EIR does not
at all address the Basin’s existing characteristics and the project’s potential impacts on
Basin’s resources. The EIR described the regional setting, including the Tahoe Basin, in
its resource chapters to the extent the County believed the project may affect that
resource. The EIR explained existing Basin conditions and the project’s potential
impacts to those conditions with regard to the project’s location, Basin land use,
population, employment and housing, biological resources, cultural resources, visual
resources, and transportation and circulation.
Sierra Watch does not further challenge the EIR’s discussion of those resources’
regional settings or the project’s impacts on those resources. Rather, it focusses its
argument on the EIR’s description of, and its analysis of potential impacts to, Basin air
quality and Lake Tahoe water quality; specifically, whether project-generated vehicular
traffic will significantly impact the Basin’s air quality and the lake’s water quality.
Substantial evidence before the County supported a fair argument that project-
generated vehicle emissions in the Lake Tahoe Basin could potentially impact the Basin’s
air and water quality and thus should have been addressed in the draft EIR. Before the
County began preparing the EIR, League to Save Lake Tahoe and other environmental
organizations responding to the notices of preparation twice stated the project’s traffic
would increase Basin VMT and impact the Basin’s air quality and the lake’s water
quality, and they asked the County to address those potential impacts. These assertions,
based on the fact the project would increase in-Basin VMT, constituted substantial
evidence that a fair argument could be made that the project would significantly impact
the environment in this manner.
The County asserts that these comments did not qualify as substantial evidence
because they were interpretations of technical or scientific information that required
27
expert evaluation. They were not. Substantial evidence includes facts and reasonable
assumptions based on fact such as Sierra Watch’s, and expert opinion was not required to
assert that the project’s in-Basin traffic would increase Basin VMT and could thereby
impact the Basin’s air and water quality. The TRPA threshold had publicly stated this
conclusion for years. Factual statements by members of the public may constitute
substantial evidence supporting a fair argument of potential significant impact. (Pocket
Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 928.)
Other evidence in the record indicated the project’s traffic could potentially affect
the Basin’s air quality and the lake’s water quality. The Lake Tahoe TMDL, which the
County participated in developing but only briefly introduced into the environmental
review, established that vehicle emissions and the sediment and dust that vehicles create
in the Basin contribute to Lake Tahoe’s degraded transparency and clarity. Before the
planning commission, the County’s EIR consultant confirmed the point. She described
the potential environmental impact thusly: “The inputs to the lake of nitrogen,
phosphorus and fine sediment are from [among other sources] roadway abrasives that get
crushed by tires, which is the whole issue of traffic and the VMT in the basin . . . . It has
been noted as several people mentioned that vehicle emissions, particularly nitrogen
oxides are a source of that material into the lake. . . . [¶] The project does generate cars.
It does generate cars that will drive into the basin. Those cars do have emissions and
some of those emissions are nitrogen oxides. [¶] So the key obligation to reduce
pollutants to the lake from these emissions are to reduce vehicle miles . . . .”
This is substantial evidence that the in-Basin vehicle traffic which the project will
generate may have a significant effect on the Tahoe Basin’s air quality andLake Tahoe’s
water quality. The issue before us is whether the EIR sufficiently described the regional
setting and analyzed these potential impacts in the manner required by CEQA and
whether its conclusions are supported by substantial evidence.
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(a) Environmental setting
There is no dispute that Lake Tahoe and the Lake Tahoe Basin are unique
resources and were entitled to special emphasis in the EIR’s description of the existing
physical conditions to the extent the project could potentially affect them. (Guidelines,
§ 15125, subd. (c).) Because the project’s in-Basin traffic could potentially impact the
Basin’s air quality and water quality, CEQA required the EIR to discuss the Basin’s
existing air and water quality so that the significance of the potential impact could be
determined.
(1) Existing regional air quality
As set forth above, the EIR’s discussion of existing regional air quality consisted
of descriptions of ambient conditions in the Truckee-Tahoe area and the in-Basin VMT.
Except for the measurements of PM10, the EIR provided measurements of ambient levels
and attainment statuses of ozone, nitrogen dioxide, and sediment particles and source
inventories of pollutants measured in the Mountain Counties Air Basin adjacent to the
Tahoe Basin.
The measurements and source inventories from the Mountain Counties Air Basin
appear at first glance not to provide the needed information. Contrary to applicants’
counsel’s assertion, the Tahoe Basin is not in the Mountain Counties Air Basin. The
Tahoe Basin is its own regulatory air basin, the Lake Tahoe Air Basin. (Cal. Code Regs.,
tit. 17, §§ 60111, subds. (h), (i); 60133.)
Sierra Watch claims more information specifically of the Tahoe Basin’s air quality
was required. However, based on the information in the record, substantial evidence
supports the County’s exercise of discretion to rely on the data it relied upon and to reject
what data from the Lake Tahoe Air Basin existed. The Placer County Air Pollution
Control District stated that the Placer County portion of the Lake Tahoe Air Basin was in
29
nonattainment for the state PM10 standard, but the EIR already disclosed that fact with the
Basin’s PM10 measurements from the South Lake Tahoe monitoring station.
Sierra Watch contends the raw PM10 data from South Lake Tahoe lacked
“essential contextual information needed by readers to assess the Project’s actual
impacts” on the Basin’s air quality. The difficulty, though, was how much other reliable
information was available for the County to describe the existing setting. Sierra Watch
does not offer what information was missing.
The EIR stated that data from monitoring stations in Kings Beach and Tahoe City
were not credible enough to be included. The California Air Resources Board, the source
of much of the EIR’s air quality information, recorded that no monitoring data on criteria
pollutants were available from the Placer County portion of the Lake Tahoe Air Basin
from 2005 through 2011.
In its reply brief, Sierra Watch claims the County had access to measurements of
the Basin’s air quality produced by TRPA. Arguments not properly raised in the opening
brief are disregarded. (Julian v. Hartford Underwriters Insurance Co. (2005) 35 Cal.4th
747, 761, fn. 4.) The argument also does not establish an abuse of discretion. The record
indicates that TRPA obtained data on Basin levels of PM10 from the South Lake Tahoe
monitoring station, on ozone from monitors in Incline Village and South Lake Tahoe, and
on PM2.5 from a monitor at Bliss State Park. Although TRPA relied on this data to
determine whether the Basin was in attainment of TRPA thresholds for those pollutants,
it admitted that the data from those stations were intermittent, and the spacing and density
of monitoring sites in the Tahoe Basin were insufficient to know the extent of how
maximum and minimum pollutant concentrations were distributed throughout the Basin.
This was particularly true of ozone and PM2.5, measurements of which the EIR obtained
from the monitoring stations in Truckee. With this lack of confidence in TRPA’s Basin
air data, the County was within its discretion not to consider it.
30
The other measurement of existing Basin air quality was TRPA’s estimate of the
Basin’s 2010 VMT, which the final EIR disclosed. Sierra Watch claims the 2010
estimate was outdated and did not satisfy CEQA’s requirement for a discussion of the
environmental setting. There is no evidence, however, that a more recent estimate was
available when the EIR was prepared. And, the disclosure of existing VMT was in
addition to the description of the existing air quality the EIR provided.
Under these circumstances, we cannot say the County abused its discretion in the
manner in which it described the regional air quality setting. It used reliable data specific
to the Tahoe Basin that was available. Substantial evidence supports its determinations in
making the description.
(2) Existing lake water quality
The EIR’s discussion of Lake Tahoe’s existing water quality consists solely of the
discussion in the final EIR of the Basin’s existing VMT and the reference to the Lake
Tahoe TMDL.
The County contends it was not required to describe Lake Tahoe’s water quality
any further because development authorized under the project would not be located in the
Tahoe Basin, and the project would not cause runoff to flow into the Basin. It also claims
it was not required to describe the lake’s water quality because the in-Basin VMT that the
project would generate was consistent with and “accounted for” in the Lake Tahoe
TMDL.
Because the EIR was required to address the potential impact that project-
generated traffic may have on Lake Tahoe’s water quality, it was required to describe the
existing water quality to the extent necessary and feasible to determine whether the
potential impact would be significant, particularly because Lake Tahoe is a unique
resource entitled to special emphasis. (Guidelines, §§ 15125, subds. (a), (c); 15360;
15125.) We recognize that the project’s stormwater will not drain into the lake, a feature
31
that eliminates a major source of the project’s potential contribution to the lake’s
declining clarity. However, that fact does not eliminate the potential impact that project-
generated traffic may have on the Basin’s water quality.
In Sierra Watch v. Placer County (2021) 69 Cal.App.5th 86 (to avoid confusion,
we refer to the case using part of the real party’s name, Squaw Valley), a panel of this
court determined that an EIR’s omission of a description of Lake Tahoe’s existing water
quality was deficient. The proposed project in that case was a resort to be built in
Olympic Valley (formerly Squaw Valley) a few miles northwest of Lake Tahoe. Similar
to the EIR before us, the EIR in Squaw Valley did not describe the lake’s current water
quality or any description of the lake as part of setting forth the existing regional setting.
The final EIR explained the Basin’s existing VMT and the amount of VMT the project
would add. However, the EIR did not discuss or intimate any relationship between VMT
and the lake’s clarity and water quality. (Id. at pp. 99.)
Here, the final EIR briefly explained the relationship between VMT and water
quality. It stated that historically, TRPA had posited that more VMT would result in
increased traffic congestion and increased nitrate loading into the atmosphere and
subsequent deposition into Lake Tahoe. It disclosed TRPA’s VMT threshold, that the
Basin’s existing VMT was below that threshold, and how much VMT the project would
add to the Basin. Thus, unlike in Squaw Valley, the public was able to understand the
significance of existing VMT and the project’s impact as expressed under that standard.
However, existing VMT is not truly a description of the lake’s physical
environment. The EIR must describe the existing physical conditions. (Guidelines,
§ 15125, subd. (a)(1).) The EIR did not describe the lake’s existing physical water
quality.
Contrary to the County’s argument, stating that the project’s VMT was accounted
for in the Lake Tahoe TMDL did not excuse a description of the lake’s existing water
quality. CEQA requires an EIR to describe existing resources that may be affected by the
32
project, and Lake Tahoe’s water quality was one of those resources. Explaining that
knowledge of the regional environmental setting “is critical to the assessment of
environmental impacts,” the Guidelines require “special emphasis” to be placed on the
description of existing environmental resources “that are rare or unique to that region and
would be affected by the project.” (Guidelines, § 15125, subd. (c).) Simply pointing to
the TMDL did not meet this requirement.
The TMDL provides a wealth of information regarding the lake, including a
description of its existing water quality. However, CEQA requires an EIR to summarize
the data it relies on and to contain a meaningful analysis of that data. (County of Amador
v. El Dorado County Water Agency, supra, 76 Cal.App.4th at pp. 955-956.) The EIR did
not provide that type of summary of the TMDL or analysis of its data. We thus conclude
the County abused its discretion by not describing Lake Tahoe’s existing water quality.
(b) Analysis of potential impacts
The County claims the EIR’s air quality analysis, its discussion of the project’s
VMT under the TRPA threshold, and its reference to the Lake Tahoe TMDL adequately
addressed the project traffic’s potential impact on Lake Tahoe’s air and water quality and
was supported by substantial evidence. We agree in part.The EIR concluded that the
project’s individual impacts on regional air quality, including emissions of nitrogen from
vehicular sources, were not significant. It reached this conclusion by determining that the
project’s emissions would not exceed a threshold of significance approved by the Placer
County Air Pollution Control District, which includes the Lake Tahoe Air Basin as well
as the Mountain Counties Air Basin.
Under the Air Pollution Control District’s threshold, project emissions of reactive
organic gases, nitrogen oxides, or PM10 that exceed 82 pounds per day are deemed
significant. The EIR stated that the project’s maximum daily operational emissions of
33
these pollutants, including emissions from mobile sources such as vehicles, would not
exceed 82 pounds per day, and thus would be less than significant.
However, the Air Pollution Control District has a different threshold for
cumulative impacts. Under that threshold, project emissions of reactive organic gases or
nitrogen oxides, including vehicular emissions, that exceed 10 pounds per day are
deemed significant. The project’s emissions of both of those pollutants will exceed 10
pounds per day, and thus are cumulatively significant. To mitigate this impact, the EIR
directed developers to ensure project emissions of reactive organic gasses do not exceed
the standard by incorporating design features to reduce nitrogen oxide emissions;
reducing emissions off-site by participating in an offsite mitigation program and funding
energy-efficiency, vehicle, and trip-reduction measures; and by paying impact fees to the
Air Pollution Control District’s offsite mitigation program. As mitigated, this cumulative
impact would be less than significant.
The final EIR also provided an analysis of the project’s contribution to in-Basin
VMT. As explained above, the EIR did not use TRPA’s VMT threshold as a threshold of
significance, but it showed that the project’s VMT would not cause the VMT threshold to
be exceeded. The project would increase in-Basin VMT by 0.7 percent. Any increase in
VMT would be mitigated by payment of fees to support expanded transit services, as
required by Mitigation Measure 10-5.
Responding to a comment about sediment deposition in Lake Tahoe due to
increased traffic, the final EIR repeated that operation of the project would not exceed the
thresholds of significance established by the Air Pollution Control District. Moreover,
and as previously mentioned, any project-related vehicle trips into the Tahoe Basin would
be consistent with the total VMT that was already accounted for and addressed in the
Lake Tahoe TMDL.
Sierra Watch claims the EIR’s analysis was inadequate. Sierra Watch argues the
County was required to utilize TRPA’s VMT threshold or the science behind it to
34
determine the significance of the project’s impacts, as that was the best science available
to evaluate the project’s impacts on the Basin’s air and water quality. Instead, the EIR
did not determine whether the impacts were significant under any standard.
Sierra Watch claims that although the final EIR addressed the VMT threshold, it
did not adopt it as a standard of significance, and even if it had, it applied it incorrectly.
The TRPA threshold is a cumulative threshold, and merely determining the project’s
VMT would not cause the threshold to be exceeded avoided determining whether the
project individually would impact the Basin. Additionally, the final EIR did not
determine the project’s cumulative impact on VMT in combination with other current,
past, and present projects.
In its reply brief, Sierra Watch claims the EIR did not comply with CEQA when it
evaluated impacts under the thresholds of significance established by the Air Pollution
Control District. It claims those standards were not designed to protect the Basin’s
unique resources.
We address first the County’s decision not to utilize TRPA’s thresholds of
significance or the science behind them, including the VMT standard.
(1) Thresholds of significance
CEQA authorizes a lead agency to utilize a threshold of significance or
environmental standard adopted by a public agency. (Guidelines, § 15064.7, subds. (c),
(d).) Under this authority and other provisions of CEQA, the County had discretion to
determine whether to rely on TRPA’s VMT threshold.
For purposes of this project, CEQA considered TRPA to be an agency with
“jurisdiction by law.” An agency with jurisdiction by law is, among other meanings, a
public agency that “exercise[s] authority over resources which may be affected by the
project.” (Guidelines, § 15366, subd. (a)(3).) By comparison, an agency other than the
lead agency having jurisdiction by law which must exercise discretionary authority over a
35
project in order for the project to proceed is a “responsible agency.” (Id., subd. (c);
§ 21069.) A “trustee agency” is a state agency that has jurisdiction by law over natural
resources affected by a project “that are held in trust for the people of the State of
California.” (§ 21070.)
CEQA requires a lead agency to consult with and obtain comments from “each
responsible agency, trustee agency, [and] any public agency that has jurisdiction by law
with respect to the project[.]” (§ 21153, subd. (a); Guidelines, § 15086, subd. (a)(3).) If
“an agency having jurisdiction over natural resources affected by a project” identifies a
significant environmental effect, it must either “submit to the lead agency complete and
detailed performance objectives for mitigation measures which would address the
significant effects on the environment identified by the . . . agency having jurisdiction
over natural resources affected by the project, or refer the lead agency to appropriate,
readily available guidelines or reference documents.” (§ 21081.6, subd. (c).)
CEQA, however, does not require the lead agency to accept and utilize the
threshold or significance standards which the jurisdiction-by-law agency used to
determine the impact was significant. It grants the lead agency discretion not to utilize
the other agency’s thresholds and environmental standards and to formulate standards of
significance of its own for determining the significance of a project’s impact.
(Guidelines, §§ 15064, subd. (b)(1), 15064.7, subds. (c), (d).)
Banning Ranch, supra, 2 Cal.5th 918, explains this point. There, the real party
proposed a large residential and commercial development on previously undeveloped
land that was also within the coastal zone as established in the Coastal Act. (§ 30001.5.)
The Coastal Act protects environmentally sensitive habitat areas in the coastal zone
against significant disruption by development. (§ 30240.) The site included potential
special status habitats, and the development called for a road that would disrupt them.
(Banning Ranch, supra, at pp. 925-927.) The city’s EIR for the project did not identify
potential habitats or discuss them in any substantive detail. The city contended that
36
CEQA did not require its EIR to discuss the potential habitats because the California
Coastal Commission, in its review of the project as a responsible agency for a
development permit, would identify potential habitats and the project’s impacts on them.
(Id. at pp. 930-932.)
The Supreme Court rejected the argument, holding that CEQA required a lead
agency to integrate a project’s CEQA review with all other related public agencies’
planning and environmental regimes. (Banning Ranch, supra, 2 Cal.5th at pp. 936-937.)
Of relevance here, the city supposed that if it were required to identify potential habitats
in the EIR, it would have to accept the habitat designations proposed by Coastal
Commission staff, which the city disputed. The Supreme Court stated, “That is not the
case. An EIR is an informational document, not a settlement agreement or a
memorandum of understanding. The lead agency may disagree with the opinions of other
agencies. [Citations.] In order to serve the important purpose of providing other
agencies and the public with an informed discussion of impacts, mitigation measures, and
alternatives, an EIR must lay out any competing views put forward by the lead agency
and other interested agencies. (See § 21061; Laurel Heights I, supra, 47 Cal.3d at
p. 391.) The Guidelines state that an EIR should identify ‘[a]reas of controversy known
to the lead agency including issues raised by [other] agencies.’ (Guidelines, § 15123,
subd. (b)(2).) ‘Disagreement among experts does not make an EIR inadequate, but the
EIR should summarize the main points of disagreement among the experts.’ (Guidelines,
§ 15151.) ‘[M]ajor environmental issues raised when the lead agency’s position is at
variance with recommendations and objections raised in the comments must be addressed
in detail.’ (Guidelines, § 15088, subd. (c).)” (Banning Ranch, supra, 2 Cal.5th at p.
940.)
Here, although TRPA stated the project would significantly impact the physical
environment by increasing vehicle trips and vehicle miles traveled in the Basin, the
County in this instance had discretion to reasonably disagree with the standards TRPA
37
used to make its determination and with the determination itself even though the County
was required to consult with TRPA. (Banning Ranch, supra, 2 Cal.5th at p. 936; see
Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 543-544 [city not required to
apply county’s significance standard for traffic impacts where project would be annexed
to the city].)
Sierra Watch asserts that the Banning Ranch court’s requirement that the city’s
EIR in that case also address matters and determinations that the Coastal Commission
would address in its review of the project applies here. Similar to that case, the record
here establishes that the project may impact the Basin’s resources, and TRPA has
established threshold carrying capacities to address those impacts. The difference,
however, is that in Banning Ranch, the Coastal Commission was a responsible agency
with permitting authority over the project. TRPA has no permitting authority in this
matter. Thus, the EIR was not required to integrate its review with TRPA’s planning and
environmental regimes.
That is not to say the EIR did not need to address TRPA’s and others’ analysis of
the review and their suggestions to use the VMT threshold. CEQA required the EIR to
summarize “[a]reas of controversy known to the lead agency including issues raised by
agencies and the public; and . . . [i]ssues to be resolved including the choice among
alternatives and whether or how to mitigate the significant effects.” (Guidelines,
§ 15123, subd. (b)(2), (3).) “In particular, the major environmental issues raised when
the lead agency’s position is at variance with recommendations and objections raised in
the comments must be addressed in detail giving reasons why specific comments and
suggestions were not accepted.” (Guidelines, § 15088, subd. (c).)
The EIR summarized this area of controversy. The draft EIR stated that one area
of known controversy was the project’s “Tahoe Basin impacts, generally: the effect of
land use decisions in Placer County to affect lands under the jurisdiction of the Tahoe
Regional Planning Agency.” The final EIR addressed TRPA’s and the public’s
38
comments on the draft EIR by addressing and applying TRPA’s VMT threshold and
explaining why it did not employ the threshold as a standard of significance.
The County’s discretion in selecting standards of review is not unfettered. The
fact the County had discretion to determine a standard of significance is not a sufficient
ground by itself to justify not using TRPA’s thresholds or the science behind them where
the EIR offers no other scientifically based information on which to determine the
impact’s significance. (See Cleveland National Forest Foundation v. San Diego Assn. of
Governments (2017) 3 Cal.5th 497, 515 (Cleveland National Forest I) [agency’s
discretion not to use standards from a state executive order is not by itself sufficient
grounds for rejecting the state standards and the science supporting them].)
Here, the EIR provided other scientifically-based information on which it
determined the significance of the project’s impact on Basin air quality—the thresholds
of significance adopted by the Air Pollution Control District. This fact distinguishes this
case from a relevant portion of Squaw Valley, supra, 69 Cal.App.5th 86, relied upon by
Sierra Watch at oral argument. In Squaw Valley, a panel of this court agreed with Sierra
Watch that the EIR’s analysis of the resort’s traffic impacts on Lake Tahoe and the
Basin’s air quality violated CEQA. Sierra Watch criticized the County for not utilizing
TRPA’s VMT threshold as a threshold of significance. The EIR mirrored much of the
analysis in the EIR before us, explaining how other EIRs had utilized the VMT standard
but ultimately deciding not to use the standard as a threshold of significance. Unlike in
the case before us, however, the Squaw Valley EIR did not provide an alternative
threshold of significance and did not determine whether the impact was significant.
(Squaw Valley, supra, 69 Cal.App.5th at pp. 100-102.) In our case, the EIR provided a
threshold of significance that was applied to regional vehicle emissions and all other
operational emissions, and it determined the significance of the impact on regional air
quality, including the Basin. Squaw Valley’s holding does not apply to this case.
39
(2) Air Pollution Control District’s threshold
In its reply brief, Sierra Watch argues for the first time that the County abused its
discretion by relying on the Air Pollution Control District’s standards. It asserts the
EIR’s analysis “masked the impacts to the Tahoe Air Basin, as Placer District’s standards
were not designed to protect the Basin’s unique resources.” Again, arguments not raised
in an opening brief are forfeited. (Julian v. Hartford Underwriters Insurance Co., supra,
35 Cal.4th at p. 761, fn. 4.) Moreover, no evidence in the record supports Sierra Watch’s
assertion. The portions of the Lake Tahoe Air Basin that are within Placer County are
within the Air Pollution Control District. (Health & Saf. Code, § 40002.) The District is
responsible for adopting and enforcing rules and regulations to achieve and maintain state
and national air quality standards in areas under its jurisdiction, including the Tahoe
Basin. (Health & Saf. Code, § 40001, subd. (a).)
We recognize that TRPA has its own air quality thresholds. Some are more strict
than state or federal standards, others less strict. In some instances, TRPA has no
standard where the state does, and visa versa. For example, TRPA has no standard for
measuring particulate matter. The Air Pollution Control District, however, has standards
for PM10, and the EIR determined the project did not violate that standard. Both TRPA
and the Air District have standards for oxides of nitrogen (NOx). TRPA’s standard, a
cumulative standard, is maintaining Basin emissions at or below 9.4 tons per day. As
stated above, the District’s individual project standard is 82 pounds per day, and its
cumulative project standard is 10 pounds per day per source. Nothing in the record
indicates the relation between these standards nor establishes that the Air District’s
standard does not protect Basin resources.
Certainly, the Air Pollution Control District does not have a VMT standard.
However, the EIR applied the Air District’s threshold of significance in a regional
context to all project emissions, including vehicular emissions. Under these
40
circumstances, the County did not abuse its discretion in utilizing the Air District’s
thresholds of significance instead of TRPA’s VMT threshold to address emission impacts
to the Tahoe Basin’s air quality and the lake’s water quality, and substantial evidence
supports the EIR’s analysis and conclusions on those impacts.
(3) Remainder of impact analysis
Although the EIR satisfactorily addressed the project’s impacts which emissions,
it did not adequately address the impacts which crushed abrasives and sediment from
project-generated traffic may have on the lake.
To the extent the VMT analysis in the final EIR was to be used to address this
water quality impact, it was inadequate for reasons raised by Sierra Watch. By not using
the VMT threshold as a threshold of significance and by not providing an alternative
threshold to measure this impact, the EIR did not determine the significance of the
potential impact individually or cumulatively.
And, as explained earlier, the reference to the Lake Tahoe TMDL was inadequate.
There is no dispute that the TMDL does in fact address this impact extensively on a
Basin-wide perspective. But the EIR did not incorporate the TMDL by reference, and the
public and decision-makers were entitled to a summary of the relevant data the County
relied on from the TMDL, an analysis of that data, and a determination of the potential
impact’s significance individually and cumulatively. (County of Amador v. El Dorado
County Water Agency, supra, 76 Cal.App.4th at pp. 955-956.) Simply stating, as the
final EIR does, that the TMDL accounts for all VMT up to the TRPA threshold, and that
the project’s VMT must therefore be included in that analysis because it does not cause
the VMT threshold to be exceeded, does not provide the required description of the
County’s analysis. The statement itself is problematic because the EIR did not analyze
the project’s cumulative impact to the VMT threshold. As a result, the reader cannot
41
determine from the EIR whether in fact the VMT threshold will not or has not been
exceeded and the TMDL’s analysis thus incorporated the project’s in-Basin VMT.
The County claims the record shows that the project would not cause an
exceedance of the VMT threshold on a cumulative basis. That information is not in the
EIR. Rather, it appears in a response the County made to comments that were submitted
after the final EIR was circulated. Discussion in the administrative record cannot
substitute for analysis required to be in the EIR. “[T]o the extent an agency omits an
adequate discussion of a project’s potential impacts in its EIR, it cannot afterward ‘make
up for the lack of analysis in the EIR’ through post-EIR analysis.” Squaw Valley, supra,
69 Cal.App.5th at p. 103.) CEQA required the cumulative impact analysis to be in the
EIR. (CEQA Guidelines, §§ 15120, subd. (c); 15130, subd. (a).)
At oral argument, counsel for the County claimed the TMDL incorporated the
project’s traffic because the TMDL was based on TRPA’s 2011 regional traffic plan,
which had also incorporated the project’s traffic into its analysis. That may be so, but
that does not address the project’s cumulative impact on the VMT threshold, and none of
that discussion appears in the EIR, where CEQA required it to be. Because of the
comprehensive research and analysis contained in the TMDL, it should not be difficult
for the County feasibly to analyze the potential impact to the Lake’s water quality and
summarize and publish its reasoning in a manner consistent with CEQA.
C. Revisions to draft EIR’s climate analysis
Both Sierra Watch and the Committee raise this issue. We address both parties’
contentions in this section.
Sierra Watch contends the County violated CEQA by not recirculating the draft
EIR after adding new information in the final EIR about the project’s impact to climate
change which allegedly revealed more severe climate impacts. Sierra Watch further
claims that the County violated CEQA by not reconsidering in the final EIR the efficacy
42
of the draft EIR’s climate impact mitigation measure in light of the new information
added to the final EIR, and because the revisions to that mitigation measure do not
guarantee the impact will be mitigated.
In its appeal, the Committee also claims the revised mitigation measure does not
comply with CEQA.
We conclude substantial evidence supports the County’s decision not to recirculate
the EIR, but we also conclude the mitigation measure does not satisfy CEQA.
1. Legal background
Understanding this issue requires another detailed background statement.
California’s attempts to reduce greenhouse gas emissions and their effect on climate
change began in 2005 when the Governor signed Executive Order S-3-05. This order
established total greenhouse gas emission targets for the state. It directed that emissions
be reduced to the level of emissions that existed in 1990 by 2020, and to 80 percent
below the 1990 level by 2050. The Governor’s targets are not mandatory thresholds of
significance or enforceable regulations. (Cleveland National Forest I, supra, 3 Cal.5th at
p. 517.)
The Legislature addressed climate change in 2006, adopting the California Global
Warming Solutions Act of 2006. (Stats. 2006, ch. 488, p. 3419 (Assembly Bill 32).)
With this legislation, “our Legislature emphatically established as state policy the
achievement of a substantial reduction in the emission of gases contributing to global
warming. (Health & Saf. Code, §§ 38500, 38501.) More specifically, Assembly Bill 32
calls for reduction of such emissions to 1990 levels by the year 2020. (Health & Saf.
Code, § 38550.) The law designates the State Air Resources Board (the Air Board) as the
state agency charged with regulating greenhouse gas emissions (id., § 38510) and calls
for the Air Board to coordinate with other state agencies to implement the state’s
reduction goal (id., § 38501, subd. (f)).
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“Under Assembly Bill 32, the Air Board was required to determine as accurately
as possible the statewide level of greenhouse gas emissions in 1990 and to approve on
that basis a statewide emissions limit to be achieved by 2020. (Health & Saf. Code,
§ 38550.) The Air Board was required to prepare and approve by January 1, 2009, a
‘scoping plan’ for achieving the ‘maximum technologically feasible and cost-effective’
reductions in greenhouse gas emissions by 2020. (Id., § 38561, subd. (a).)
“In its 2008 Climate Change Scoping Plan, the Air Board explained that
‘[r]educing greenhouse gas emissions to 1990 levels means cutting approximately 30
percent from business-as-usual emission levels projected for 2020, or about 15 percent
from today’s levels.’ (Air [Resources] Bd., Climate Change Scoping Plan (Dec. 2008)
Executive Summary, p. ES–1 (Scoping Plan).) The Scoping Plan then set out a
‘comprehensive array of emissions reduction approaches and tools’ to meet the goal” of
reducing statewide emissions by approximately 29 percent. (Center for Biological
Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204, 215-216 (Newhall
Ranch).) A “business-as-usual” scenario was one that assumed no conservation or
regulatory efforts would be in effect in 2020 beyond what was in place when the Air
Board made its forecast in 2008. (Id. at p. 216.)
Due to the economic downturn that occurred in 2008, the Air Board in 2011
revised its projected level of statewide emissions for 2020. In its revised scoping plan,
the Air Board estimated that the state’s business-as-usual emissions in 2020 would be
545 million metric tons of carbon dioxide equivalent emissions (CO2e), not 596 million
metric tons of CO2e as originally estimated, and that reducing the 2020 emissions to 1990
levels would require reducing them by approximately 21.7 percent, not 30 percent. (For
ease of reference, subsequent refences to “metric tons” in this section I.C. of the opinion
refer to metric tons of CO2e.)
In 2015, the Governor signed Executive Order B-30-15 to establish a state
greenhouse gas reduction target of 40 percent below 1990 emissions levels by 2030. The
44
Governor’s new target would make it possible for the state to reach the ultimate goal of
reducing emissions to 80 percent below 1990 levels by 2050. As of the writing of the
EIR, however, neither the Air Board nor the Legislature had adopted an emissions
reduction goal beyond 2020.
2. Factual background
a. Draft EIR’s analysis of greenhouse gas emissions
In the draft EIR, the County utilized thresholds of significance developed by the
Placer County Air Pollution Control District to determine whether the project’s
operational emissions of greenhouse gases would significantly impact the environment.
These thresholds were intended to evaluate a project for its consistency with the Air
Board’s reduction targets for 2020 contained in the Air Board’s revised Scoping Plan.
For operational emissions, the Air Pollution Control District’s thresholds had a
two-tier approach. Under tier I, a project’s annual emissions of less than 1,100 metric
tons of CO2e were deemed not to have a significant effect on the environment. Under tier
II, if a project’s annual emissions at full buildout and subject to existing greenhouse gas
regulations (the full buildout scenario) exceeded 1,100 metric tons of CO2e but were at
least 21.7 percent less than what its emissions would be in 2020 in a business as usual
scenario (referred to in the draft EIR as a “no action taken” scenario), the project would
not conflict with the Air Board’s revised Scoping Plan, and the lead agency had
discretion to determine whether the project’s exceedance of tier I’s threshold of 1,100
metric tons was a significant impact. The parties refer to the tier II standard as an
“efficiency” standard as it attempts to determine the project’s “efficiency” of meeting the
state’s target of reducing statewide greenhouse gas emissions by 21.7 percent of
projected business-as-usual 2020 emissions.
Operation of the project would result in greenhouse gas emissions from motor
vehicle trips to and from the project; combustion of natural gas for space and water
45
heating; consumption of electricity and water; conveyance, treatment, and discharge of
wastewater; transport and disposal of solid waste; and use of landscaping and snow
removal equipment.
Applying the Air Pollution Control District’s two-tier threshold, the County first
estimated that the project at full buildout, projected to be in 2033, would annually emit
35,865 metric tons of CO2e, far in excess of tier I’s threshold of 1,100 metric tons.
For the tier II analysis, the County, assuming full buildout in 2020, determined
that the full buildout scenario’s emissions would be 23.2 percent less than those from the
business as usual scenario. This amount of reduction was greater than, and would not
conflict with, the 21.7 percent target in reduced emissions from the statewide business as
usual scenario sought by the Air Board’s Scoping Plan.
Nevertheless, the County determined that the impact from operational emissions
was potentially significant. It reached this conclusion because the project would generate
substantial greenhouse gas emissions well above the Air Pollution Control District’s tier I
level, and because it was not known whether the project in the long term could satisfy
future and likely more stringent state efficiency targets.
The Air Board had proposed, but had not adopted, more stringent goals that
extended beyond 2020, and the Governor, as mentioned earlier, had set targets to further
reduce emissions in Executive Orders B-30-15 (40 percent reduction below 1990 levels
by 2030) and S-3-05 (80 percent reduction below 1990 levels by 2050). The EIR stated
that although the project would meet the 2020 efficiency target, it was unlikely the
project at full buildout could meet long-term greenhouse gas “efficiency aspirations”
such as those expressed in Executive Orders B-30-15 and S-3-05 without substantial
statewide regulation, such as regulations resulting in more electric vehicles in the fleet
mix, more stringent energy efficiency standards for buildings, and an increase in the
generation of renewable electricity. Because the project would generate greenhouse gas
emissions above the Air District’s tier I level, and because it was not known whether the
46
project could meet future greenhouse gas reduction targets, the County concluded the
impact would be potentially significant.
The draft EIR set forth mitigation measure 12-2 to mitigate the impact. That
measure obligates the County to require all applicants that apply for subdivision maps
within the project after 2020 to demonstrate that operation of the proposed project would
be consistent with then-current greenhouse gas emission targets adopted by the state. The
applicant must make this demonstration using then-currently adopted regulations and
industry-accepted greenhouse gas emission calculation methods, such as the “efficiency”
comparison conducted in the draft EIR. If the proposed project achieves or exceeds the
reduction target, no further actions will be required. If the project does not achieve the
target, then all feasible mitigation measures will be mandated and incorporated into the
project to reduce greenhouse gas emissions to the target level.
Despite mitigation measure 12-2, the County concluded that as mitigated, the
impact remained potentially significant and was unavoidable. Too many factors
remained unknown to conclude otherwise: the absence of post-2020 adopted emissions
targets, the effectiveness of regulatory actions already adopted, and the potential
application of new regulations and their cost, feasibility, and effectiveness. The EIR
stated it would thus be speculative to determine that greenhouse gas impacts would be
feasibly mitigated to satisfy the targets likely to be adopted beyond 2020. For that
reason, and because the project would generate emissions well above the tier I threshold,
the residual impact was potentially significant and unavoidable.
b. The Newhall Ranch decision
While the draft EIR was being circulated, the California Supreme Court issued its
decision in Newhall Ranch, supra, 62 Cal.4th 204. In that case, the court invalidated an
EIR’s use of an efficiency analysis based on the Air Board Scoping Plan’s statewide
reduction mandate to determine the significance of an individual project’s greenhouse gas
47
emissions, as was done in the draft EIR here. The EIR at issue in Newhall Ranch stated
that a large development project would emit 31 percent less greenhouse gases in 2020
than if the project was built in the business as usual scenario. The 31 percent reduction
was greater than the 29 percent statewide reduction sought by the Air Board’s original
Scoping Plan. On that basis, the EIR concluded the impact was less than significant. (Id.
at pp. 217-218.)
The Supreme Court stated the lead agency “abused its discretion in finding, on the
basis of the EIR’s business-as-usual comparison, that the project’s greenhouse gas
emissions would have no cumulatively significant impact on the environment. We [the
Supreme Court] reach this conclusion because the administrative record discloses no
substantial evidence that Newhall Ranch’s project-level reduction of 31 percent in
comparison to business as usual is consistent with achieving Assembly Bill 32’s
statewide goal of a 29 percent reduction from business as usual, a lacuna both dissenting
opinions fail to address. Even using the EIR’s own significance criterion, the EIR’s
analysis fails to support its conclusion of no significant impact.” (Newhall Ranch, supra,
62 Cal.4th at p. 225.)
The lead agency did not violate CEQA simply by choosing consistency with
Assembly Bill 32 and the Scoping Plan’s reduction target as a significance criterion. In
light of greenhouse gas impacts’ global nature and the inevitability of increased
greenhouse gas emissions as the state continues to grow, a significance criterion framed
in terms of efficiency in meeting the state’s target, expressed as a percentage reduction
from a hypothetical scenario in which no additional regulatory actions were taken, was
superior to a simple numerical threshold. (Newhall Ranch, supra, 62 Cal.4th at pp. 220,
225.) The error occurred because “the Scoping Plan nowhere related that statewide level
of reduction effort to the percentage of reduction that would or should be required from
individual projects, and nothing [the lead agency] or Newhall has cited in the
administrative record indicates the required percentage reduction from business as usual
48
is the same for an individual project as for the entire state population and economy.” (Id.
at pp. 225-226.)
The court provided an example to explain its point. New buildings and
infrastructure might have to provide more than a 29 percent reduction in emissions levels
because “[d]esigning new buildings and infrastructure for maximum energy efficiency
and renewable energy use is likely to be easier, and is more likely to occur, than
achieving the same savings by retrofitting of older structures and systems.” (Newhall
Ranch, supra, 62 Cal.4th at p. 226.)
The Supreme Court offered suggestions for how lead agencies could evaluate the
significance of a project’s greenhouse gas emissions. The agency could use the business
as usual approach so long as substantial evidence substantiated what a new land use
development at the proposed location must contribute in order to comply with state goals.
The agency could also examine the degree to which the project met regulatory programs
and performance standards adopted for complying with the statewide goal so long as the
programs and standards applied to the elements of the project that generated greenhouse
gases. And, the agency could rely on existing numerical thresholds of significance for
greenhouse gas emissions, such as the Air Pollution Control District’s tier I 1,100 metric
ton threshold the County utilized in the draft EIR here. (Newhall Ranch, supra,
62 Cal.4th at pp. 229-231; see p. 230, fn. 7, recognizing a 1,100 metric ton threshold used
by the Bay Area Air Quality Management District.)
c. Final EIR’s analysis and revisions to the draft EIR
The County addressed Newhall Ranch and its impact on the draft EIR’s
greenhouse gas emissions analysis in the final EIR. It determined that the draft EIR’s
conclusion that the impact was significant remained unchanged for three reasons. First,
the draft EIR had evaluated the project’s long-term impacts under the tier I numerical
threshold, a threshold that was consistent with Newhall Ranch’s ruling. Because the
49
project’s annual emissions would exceed the tier I threshold, the draft EIR concluded the
impact was significant and unavoidable.
Second, because the project’s greenhouse gas impacts were found to be significant
and unavoidable for other reasons, the draft EIR’s conclusion regarding conflicts with the
Scoping Plan was immaterial to the overall significance conclusion. The draft EIR used
the tier II efficiency threshold “only to determine if the project would ‘conflict with [the
Air Board’s] Scoping Plan for 2020 targets.’ [3AR 1573].” Newhall Ranch called into
question whether this type of efficiency analysis could be used to determine significance
based on whether the project was consistent with the Scoping Plan, but it did not question
the EIR’s other reasons for finding the impact to be significant. Even if a conclusion
cannot be drawn regarding conflicts with the Scoping Plan, this would not alter the
conclusion that the project’s greenhouse gas emissions impact would be significant and
unavoidable.
Third, very little of the project if approved would be constructed prior to 2020.
The draft EIR’s analysis considered buildout by 2020 for illustrative purposes to evaluate
how the project matched with the Scoping Plan’s 2020 targets. If the County approved
the project, the earliest any phase would likely be completed would be 2018. The draft
EIR acknowledged this fact by including a detailed discussion of post 2020 greenhouse
gas considerations.
The final EIR reviewed other possible methods suggested by the Newhall Ranch
court for determining the significance of greenhouse gas impacts, but it rejected them.
One, an analysis whose link between the actual project and the Scoping Plan’s target was
supported by substantial evidence, could not be used because the linking substantial
evidence did not exist. It was unclear how to develop the evidence to reliably relate a
specific land use development project’s reductions to the Scoping Plan’s statewide goal.
The other, compliance with regulatory programs adopted to reach Assembly Bill 32’s
goals that applied to elements of the project that generated greenhouse gases, was
50
inapplicable because too few of such programs existed that addressed the project’s
specific impacts, and those that did exist were subject to unknown future revisions.
Regarding the effectiveness of the draft EIR’s mitigation measures and whether
additional mitigation measures were needed, the final EIR stated that the draft EIR had
described several project policies and mitigation measures that would reduce greenhouse
gas emissions, such as prohibiting wood-burning stoves and fireplaces and encouraging
construction that exceeds current energy codes. However, because many of these policies
were not firm and their effectiveness depended on many variables, the draft EIR did not
calculate their potential effectiveness. Instead, in mitigation measure 12-2, it required
that certain targets be met as subdivision maps were submitted for approval. The
measure would ensure that each subdivision map would meet the County’s greenhouse
gas reduction goas or requirements in place when the map is submitted.
The final EIR stated that the draft EIR’s conclusion regarding greenhouse gas
emissions would not be changed by its evaluation. The project’s emissions would exceed
the tier I threshold, future targets were expected but had not been adopted, and
compliance with future targets was unknown. Mitigation measures would reduce
emissions, as stated in the draft EIR, but the impact would remain potentially significant
and unavoidable.
Based on reaching the same conclusion as the draft EIR, the County determined
that its considerations in the final EIR did not require it to recirculate the EIR.
As a result of the County’s considerations after Newhall Ranch, the final EIR
made several amendments to the draft EIR. Some described Newhall Ranch and stated
that the tier II category, which was based on a business as usual model, was not
considered as a threshold of significance for the project. Some also deleted explanations
of and findings under tier II and stated the efficiency analysis contained in the draft EIR
was provided for informational purposes only. The final EIR stated, “There are no
51
current mechanisms available to determine the level of GHG-efficiency needed on a
single project in order to determine if it fits within the Scoping Plan targets.”
Other amendments reflected new analysis, unrelated to Newhall Ranch, which
showed that indirect emissions from the project’s electricity consumption, and thus the
project’s total emissions, would be lower than those stated in the draft EIR. The
reductions would occur due to the power supplier’s decision to comply with a regulatory
program which grew out of the 2008 Scoping Plan. As a result of this action, the final
EIR projected that the project’s annual greenhouse gas emissions at full buildout in 2033
would be 30,427 metric tons. This output was less than the draft EIR’s projection of
35,865 metric tons, but still much more than the 1,100 metric tons allowed under the tier
I threshold. The impact thus remained significant.
The final EIR also amended the draft EIR to state that attainment of future
emissions targets would be partially reliant on new regulations as well as potentially on
the degree to which other existing regulatory programs not considered in the EIR, such as
Cap-and-Trade regulations, are assumed by the Air Board to have already reduced
greenhouse gas emissions. It still remained unlikely that the project at buildout could
meet long-term greenhouse gas efficiency aspirations without substantial new statewide
regulations. Because the project would generate substantial greenhouse gas emissions,
and because it was unknown if the project would be consistent with future greenhouse
gas emissions reduction targets, the impact would be potentially significant.
The final EIR amended mitigation measure 12-2 to require that upon submitting a
subdivision map for approval, the applicant must establish that operation of the project
would be consistent with greenhouse gas emissions targets formally adopted by the state
or County and then in existence. The target must be based on substantial linkage between
the project (or projects in the County) and statewide greenhouse gas reduction goals, as
required by Newhall Ranch. If the project achieves or exceeds the target, no mitigation
measures will be required. If the project does not meet the target, mitigation measures
52
will be imposed. The amendment deleted the option of showing compliance based on a
business as usual or no action taken scenario.
The final EIR also revised the draft EIR’s analysis of the impact’s significance
after mitigation. Implementation of mitigation measure 12-2 would reduce greenhouse
gas emissions, but important factors remained unknown: the effectiveness of existing
regulatory programs and the potential application of new targets and regulations and their
effectiveness and compliance costs. As a result, it was speculative to determine whether
greenhouse gas impacts would be feasibly mitigated to adopted targets. As did the draft
EIR, the final EIR concluded that for this reason, and because the project would emit a
substantial level of greenhouse gases, the residual impact after mitigation remained
potentially significant and unavoidable.
3. Discussion
Sierra Watch makes two contentions against the final EIR’s analysis of the
project’s greenhouse gas impacts. First, it contends the County was obligated to
recirculate the draft EIR because the final EIR’s analysis constituted “significant new
information” which under CEQA triggered recirculation. Second, the final EIR violated
CEQA because the County did not reconsider the draft EIR’s climate mitigation in light
of the new impacts revealed in the final EIR, and because the revised mitigation measure
does not guarantee the impact will be mitigated. The Committee also contends the
revised mitigation measure is not enforceable or feasible.
a. Recirculation
A lead agency must recirculate an EIR if, after releasing the draft EIR for
circulation, it adds “significant new information” to the document. (Guidelines,
§ 15088.5, subd. (a).) “Significant new information” includes a disclosure showing that
“(1) A new significant environmental impact would result from the project or from a new
mitigation measure proposed to be implemented[;] (2) A substantial increase in the
53
severity of an environmental impact would result unless mitigation measures are adopted
that reduce the impact to a level of insignificance[;] (3) A feasible project alternative or
mitigation measure considerably different from others previously analyzed would clearly
lessen the significant environmental impacts of the project, but the project’s proponents
decline to adopt it[; or] (4) The draft EIR was so fundamentally and basically inadequate
and conclusory in nature that meaningful public review and comment were precluded.”
(Guidelines, § 15088.5, subd. (a).)
The lead agency is not required to recirculate the EIR “where the new information
added to the EIR merely clarifies or amplifies or makes insignificant modifications in an
adequate EIR.” (Guidelines, § 15088.5, subd. (b).) Such is the case here.
Sierra Watch asserts that the final EIR adopted a “new” threshold of significance,
the Air Pollution Control District’s tier I threshold, and that by using this new threshold,
the final EIR’s analysis revealed that the project would cause “far more severe climate
impacts” than the draft EIR had disclosed. Sierra Watch claims the draft EIR did not
apply the tier I numerical standard to determine the impact’s significance; it applied the
tier II efficiency standard. Sierra Watch is incorrect.
As already recited, the draft EIR relied on the tier I threshold and the lack of future
emissions targets, not the tier II threshold, to determine the project’s greenhouse gas
impacts were significant. Although the County analyzed the project under tier II, it did
not use the tier II standard as a threshold of significance. Rather, meeting the tier II
standard gave the County discretion to determine whether the project’s impacts were
nonetheless significant. The County exercised that discretion and, without relying on the
tier II standard, concluded the project’s emissions were significant in part because they
exceeded the tier I standard. Sierra Watch’s argument that the EIR must be recirculated
simply because the County analyzed the project under tier II ignores the draft EIR’s
substantive analysis and findings.
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The final EIR did not introduce the tier I threshold as a new threshold. It
explained that the draft EIR’s efficiency analysis likely did not comply with Newhall
Ranch because the required substantial evidence to support that analysis was not
available. Nevertheless, that analysis was immaterial to the overall significance finding
because the draft EIR had concluded the impacts were significant regardless of the
efficiency analysis. In other words, even though the draft EIR determined the project’s
level of emissions would be more efficient than that required by the state’s 2020 target,
the County did not rely on that fact when it quantified the project’s impacts nor when it
considered whether the emissions impacts would be significant. Both the draft EIR and
the final EIR concluded that the impacts were significant because the project’s emissions
would far exceed the tier I threshold, a threshold that Newhall Ranch had approved using,
and because the County could not speculate on significant future impacts without
knowing the emissions targets the state would adopt.
Sierra Watch asserts the draft EIR could not have applied both tier I and tier II
thresholds because the draft EIR stated it would consider the impact significant if both
thresholds were exceeded. The argument is meritless. The EIR’s stating it would
necessarily find the impact was significant if both thresholds were exceeded did not
prevent the County from also concluding the impact was significant under tier I where
tier II gave it the discretion to make that finding if its standard was not met.
Sierra Watch argues the final EIR showed the project would have more impacts
than was disclosed in the draft EIR because whereas the draft EIR had found the project
would not exceed the tier II threshold, the final EIR disclosed the project’s emissions
would “vastly exceed” the tier I threshold. Sierra Watch ignores that the draft EIR also
showed that the project’s emissions would vastly exceed the tier I threshold. The draft
EIR stated, “As shown in Table 12-2, upon full buildout, [greenhouse gas] emissions
associated with operation of the proposed project would exceed the Tier I mass emission
threshold of 1,100 [metric tons].” Table 12-2 showed exactly how much the project
55
would have exceeded the tier I threshold. It stated the tier I threshold was 1,100 metric
tons, and the project at buildout would produce 35,865 metric tons. The draft EIR’s use
of the tier II threshold did not change the actual, quantitative impacts the project would
create or that the draft EIR disclosed.
Also, at no time did the final EIR reveal that the project’s greenhouse gas
emissions would impact the environment more severely than the draft EIR disclosed. In
fact, contrary to Sierra Watch’s assertion that the final EIR revealed “more severe climate
impacts,” the final EIR concluded that the project’s impact would be less than that
disclosed in the draft EIR. Instead of producing 35,865 metric tons of greenhouse gases
as the draft EIR stated, the project would produce 30,427 metric tons. But, just as the
draft EIR had done, the final EIR concluded that the impact under tier I remained
significant and unavoidable.
Sierra Watch asserts the final EIR disclosed for the first time that the project’s
impacts would be significant in the short term. The argument requires some explanation.
The draft EIR described the greenhouse gas impact thusly: “Annual GHG [greenhouse
gas] emissions from project operation would exceed the Tier I mass-emission threshold
of 1,100 [metric tons]/year, but would not exceed the GHG efficiency-based Tier II
threshold recommended by [the Air Pollution Control District] for 2020. Nevertheless,
GHG emissions would be substantial and the project may be less efficient than necessary
to achieve GHG reduction targets that could be in place after 2020, when the [project] is
built out. Therefore, operation of the project has the potential to result in a substantial
contribution to GHG emissions. This impact would be potentially significant.”
The final EIR revised this language to read: “Annual GHG emissions from project
operation would exceed the Tier I mass-emission threshold of 1,100 [metric tons]/year.
GHG emissions would be substantial when the [project] is built out. Therefore, operation
of the Specific Plan has the potential to result in a substantial contribution to GHG
emissions.”
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Sierra Watch contends that the final EIR’s conclusion revealed for the first time
that the project’s short-term climate impacts would be significant. We disagree. In both
conclusions, the County stated that annual greenhouse gas emissions from project
operation would exceed the tier I threshold. The draft EIR did not claim that emission
impacts would be less significant in 2020 but significant thereafter. That the draft EIR
stated emissions would not exceed the tier II efficiency standard for 2020 did not mean
emissions would not exceed the tier I threshold in the short term or necessarily not be
significant. Both EIRs disclosed that the project’s emissions would exceed the tier I
standard annually—in the short term and in the long term.
Because the new information provided in the final EIR only clarified or amplified
the draft EIR’s discussion and conclusions and demonstrated the impact would be less
than the draft EIR had disclosed but would remain significant, substantial evidence
supported the County’s decision not to recirculate the EIR on that basis. (Guidelines,
§ 15088.5, subd. (b).)
b. Mitigation measure 12-2
Sierra Watch asserts the County erred by not reconsidering the efficacy of
mitigation measure 12-2 in light of the final EIR’s new climate analysis. Because we
have concluded the final EIR did not disclose new impacts, its analysis did not of itself
require the County to reconsider the efficacy of the mitigation measure.
Sierra Watch also attacks the mitigation measure as it was revised in the final EIR.
As written, the measure requires a developer to mitigate impacts if the project conflicts
with greenhouse gas targets adopted by the state where those targets, in compliance with
the rule of Newhall Ranch, are based on “a substantiated linkage” between the project
and statewide emission reduction goals. No such targets exist. The final EIR does not
discuss how the mitigation measure will apply if no such targets are developed.
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Sierra Watch claims this approach violates CEQA because the measure does not
guarantee that impacts will be mitigated. It requires mitigation only if the project
conflicts with emissions targets adopted by the state that are based on a substantiated
linkage between the project and the statewide reduction target. Such targets do not exist,
and they may not be adopted. The project thus will not trigger the mitigation measure
despite its significant emissions impacts.
Sierra Watch also argues that waiting to formulate and impose the mitigation
measure until or if such targets are developed violates CEQA by wrongfully deferring
mitigation. When it commented on the draft EIR, Sierra Watch raised other mitigation
measures it thought were feasible, but the County assertedly did not analyze or adopt
them. As a result of these errors, the final EIR does not effectively mitigate the impact.
In its appeal, the Committee raises similar arguments. It claims substantial
evidence does not show that mitigation has been required for the project because whether
the mitigation measure will apply depends on the future adoption of state targets and
linkages with the project that satisfy Newhall, targets that may not ever by adopted. By
depending on the unknown future formulation of a regulatory standard, the measure lacks
a performance standard and wrongfully defers its formulation.
The Committee also claims the measure wrongfully imposes on the applicants the
responsibility for determining whether a project’s impacts will be significant and allows
the developer when submitting a future application for a subdivision map to re-open the
significance determination that was made when the project was first approved.
The County acknowledged in the final EIR that no such targets existed and that
they may not be able to be established as there were no mechanisms available to
determine whether a single project’s emissions efficiency fit within the Scoping Plan’s
targets. However, the final EIR stated that the Air Board was updating its Scoping Plan
and that new emissions targets would likely be adopted during the project’s 20-year
buildout. The County designed the mitigation measure recognizing this fact but without
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speculating about what those future targets might be. The County argues that it
nonetheless committed to mitigating the project’s greenhouse gas impacts to the extent it
could. It claims that under the circumstances, it did not violate CEQA by building
flexibility into the mitigation measure.
As for Sierra Watch’s proposed mitigation measures, the County found that most
of them were not feasible. They also were not considerably different from others the
County had analyzed and found would not clearly lessen the project’s emissions impacts.
The County claims it acted within its discretion in reaching its conclusion.
Responding to the Committee, the County claims the mitigation measure will
apply to all map applications regardless of timing and whether or not the state has
adopted new targets or regulations. The measure also does not defer the formulation of
mitigation measures; it lists the alternatives to be considered, analyzed, and possibly
incorporated into the mitigation plan. Also, the County, and not the applicants, will
determine whether the map is consistent with applicable targets and regulations and what
additional steps must be taken.
The Guidelines describe acceptable mitigation measures for greenhouse gas
emissions. “[L]lead agencies shall consider feasible means, supported by substantial
evidence and subject to monitoring or reporting, of mitigating the significant effects of
greenhouse gas emissions. Measures to mitigate the significant effects of greenhouse gas
emissions may include, among others:
“(1) Measures in an existing plan or mitigation program for the reduction of
emissions that are required as part of the lead agency’s decision;
“(2) Reductions in emissions resulting from a project through implementation of
project features, project design, or other measures . . .;
“(3) Off-site measures, including offsets that are not otherwise required, to
mitigate a project’s emissions;
“(4) Measures that sequester greenhouse gases;
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“(5) In the case of the adoption of a plan, such as a general plan, long range
development plan, or plans for the reduction of greenhouse gas emissions, mitigation may
include the identification of specific measures that may be implemented on a project-by-
project basis. Mitigation may also include the incorporation of specific measures or
policies found in an adopted ordinance or regulation that reduces the cumulative effect of
emissions.” (Guidelines, § 15126.4, subd. (c).)
Generally, courts uphold mitigation measures against attacks based on their
alleged inadequacy where substantial evidence supports the approving agency’s
conclusion that the measure will be effective. (Sacramento Old City Assn. v. City
Council (1992) 229 Cal.App.3d 1011, 1027.) However, we will not defer to the agency’s
determination where the measure’s efficacy is not apparent and there is no evidence in
the record showing it will be effective in remedying the identified environmental impact.
(See Sierra Club v. County of San Diego (2014) 231 Cal.App.4th 1152, 1167-1170
[county violated CEQA by adopting a climate action plan that did not ensure greenhouse
gas emission requirements would be met as mitigation measure required it to do].)
Mitigation measure 12-2 is unique. It provides both a threshold for determining
the significance of emissions impacts that will be caused by actual development of the
project, and it provides a mitigation measure for impacts found to be significant. The
CEQA violation occurs in the threshold.
Under the mitigation measure, a map’s impacts will be deemed to be not
significant and no mitigation will be required if operation of the map’s project meets or
exceeds greenhouse gas emissions targets adopted by the state or County. But not just
any adopted targets. As written, the mitigation measure requires the project to meet
adopted targets that are “based on a substantiated linkage between the project (or Placer
County projects in general if a countywide qualified GHG reduction plan is approved)
and statewide GHG reduction goals.” In other words, the project must meet adopted state
or county targets that, in compliance with Newhall Ranch, are based on a relation
60
between the adopted statewide emissions reduction target and the percentage of reduction
that would or should be required from the individual project.
The County admitted that no such target or plan exists. Indeed, it went further
than that. It stated in the final EIR, “There are no current mechanisms available to
determine the level of GHG-efficiency needed on a single project in order to determine if
it fits within the Scoping Plan targets,” and that such linked targets may never exist. As
presently written, however, the mitigation measure operates only under targets that are
based on those mechanisms and establish the required linkage. If the required targets do
not exist, then the mitigation measure’s threshold of significance cannot be triggered and
the significance of a project’s impacts will not be determined. The mitigation measure
provides the sole method to determine the impact’s significance, as it stated the projects
will be required to operate within the existing target “as explained below,” referring to
the threshold of significance based on targets that satisfy Newhall Ranch.
As a result, the mitigation measure defers determining the significance of the
impact and establishing appropriate mitigation to an undisclosed time in the future.
“Formulation of mitigation measures shall not be deferred until some future time” subject
to an exception. (Guidelines, § 15126.4, subd. (a)(1)(B).) Under that exception, the
specific details of a mitigation measure may be developed after project approval “when it
is impractical or infeasible to include those details during the project’s environmental
review provided that the agency (1) commits itself to the mitigation, (2) adopts specific
performance standards the mitigation will achieve, and (3) identifies the type(s) of
potential action(s) that can feasibly achieve that performance standard and that will [be]
considered, analyzed, and potentially incorporated in the mitigation measure.”
(Guidelines, § 15126.4, subd. (a)(1)(B).)
Mitigation measure 12-2 makes a good-faith effort to satisfy the elements
necessary to defer development of its specific details, but by relying on performance
standards that do not exist and may never exist, the measure defers the determination of
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the impact’s significance to an unknown time and does not sufficiently commit the
County and the project applicants to mitigating the impact.
The County contends the mitigation measure is enforceable because it will apply
to all maps submitted under the specific plan regardless of timing. That may be so, but as
written, the mitigation measure is conditional, and there is no indication the predicate
condition will ever be satisfied to trigger mitigation requirements.
The County asserts that the mitigation measure does not depend on new targets or
regulations; the County must perform the project-level analysis regardless of the targets
and regulations then in place. That is not what the mitigation measure says. The
applicant must demonstrate compliance not with just any target and regulation in place,
but with a target that satisfies Newhall Ranch. The mitigation measure and the EIR are
silent on whether or how to mitigate emissions impacts if the required targets are not
adopted.
The County points to the list of reduction measures the EIR considers to be
feasible that will reduce emissions impacts. What the County ignores is that nothing in
the mitigation measure obligates the County to require a project to implement those
measures unless the project does not meet the required but non-existent targets. The
entire measure is conditioned on the existence of targets that satisfy Newhall Ranch’s
linkage requirement. The County claims it will apply the mitigation measure whether or
not such a target has been adopted, but, as the measure is currently written, there is
nothing to apply if a target is not adopted. For these reasons, the mitigation measure does
not comply with CEQA, and substantial evidence does not support a contrary finding by
the County. Imposing a mitigation measure that will not mitigate the impact contravenes
CEQA and is prejudicial error.
Because we find the mitigation measure invalid on the grounds stated, we need not
address the parties’ other challenges to the measure.
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III
The Timberland Productivity Act
Sierra Watch contends that the County’s immediate rezoning of the West Parcel
from TPZ (Timberland Production Zone) to zoning that would permit the proposed
development violated the Timberland Productivity Act (Gov. Code, § 51100 et seq.).
Sierra Watch claims that in approving the rezoning, the County did not make findings
required by the statute. Instead, the County adopted findings that purported to justify the
immediate rezoning on unrelated grounds.
We disagree. The County adopted the required findings, and those findings were
supported by substantial evidence.
A. Legal and factual background
Section 3(j) of Article XIII of the California Constitution (Article XIII, section
3(j)) authorizes the Legislature to tax timber using a tax system which is not based on
property valuation. The provision requires the alternative tax system to “encourage the
continued use of timberlands for the production of trees for timber products, and shall
provide for restricting the use of timberland to the production of timber products and
compatible uses with provisions for taxation of timberland based on the restrictions.”
(Cal. Const., Art. XIII, § 3(j).)
Pursuant to Article XIII, section 3(j), the Legislature adopted an alternative taxing
system for timber and timberland. The Legislature “enacted the Forest Taxation Reform
Act of 1976[,] a comprehensive revision of the prior system of taxing timber and
timberland. [(Stats. 1976, ch. 176, p. 293.)] Basically, growing timber is exempt from ad
valorem property taxes and, instead, the legislature has imposed a yield tax on timber
harvested on either public or private land. The underlying timberland is not itself
exempt, but provision is made for zoning such land for a minimum period of 10 years as
timberland preserve and it is then valued for property tax purposes on the basis of its use
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for growing and harvesting timber only.” (Flavin, Taxing Cal. Property (4th ed. 2020),
§ 10:6, fns. omitted.)
The section of the Forest Taxation Reform Act dealing with timberland zoning
was amended and renamed the California Timberland Productivity Act of 1982 (the Act).
(Gov. Code, § 51100.) The Legislature declared the Act was to implement the following
state polices: “(1) Maintain the optimum amount of the limited supply of timberland to
ensure its current and continued availability for the growing and harvesting of timber and
compatible uses. (2) Discourage premature or unnecessary conversion of timberland to
urban and other uses. (3) Discourage expansion of urban services into timberland. (4)
Encourage investment in timberlands based on reasonable expectation of harvest.” (Gov.
Code, § 51102, subd. (a); see also Gov. Code, § 51101.)
“The [Act] restricts land in certain timberland production zones (TPZ’s) to the
growing and harvesting of timber and compatible uses. (See Gov. Code, §§ 51115,
51118.) In exchange, owners of land in a TPZ benefit by lower property tax valuations
that reflect the enforceable statutory restrictions.” (Big Creek Lumber Co. v. County of
Santa Cruz (2006) 38 Cal.4th 1139, 1148.)
The Act is similar to the Williamson Act, which “establishes a mechanism for
saving agricultural land by allowing counties to create agricultural preserves and then to
enter into contracts with landowners within those preserves. (Gov. Code, § 51200 et
seq.) A Williamson Act contract obligates the landowner to maintain the land as
agricultural for 10 or more years, with resulting tax benefits. (Id., §§ 51240–51244.)”
(Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503, 515-516.)
Landowners who desire their timberland to be rezoned from TPZ and freed from
the Act’s use restrictions may request a rezoning. If the local governing agency approves
the rezoning, it specifies a new zoning which will become effective 10 years from the
date of approval. Property taxes will escalate during the 10-year period. (Gov. Code,
§ 51120.)
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However, under certain circumstances, the landowner may request that the
property be rezoned immediately. (Gov. Code, §§ 51130, 51131.) That is what
happened here. The Act allows timberland to be rezoned immediately “only when the
continued use of land in the timberland production zone is neither necessary nor desirable
to accomplish the purposes of Section 3(j) of Article XIII of the Constitution and of this
chapter [the Act].” (Gov. Code, § 51130.)
Where converting timberland to another use also requires a timberland conversion
permit from the State Board of Forestry and Fire Protection (Cal Fire), as it did here, the
procedure for immediate rezoning involves two steps. (Gov. Code, § 51133.) First, after
the landowner requests that the land be rezoned immediately, the governing local agency
(in this case the County) may tentatively approve the request after a public hearing and
by a four-fifths vote of the full board of supervisors. The board must make written
findings declaring that immediate rezoning is not inconsistent with the purposes of
Article XIII, section 3(j) and the Act, and that the immediate rezoning is in the public
interest. (Gov. Code, § 51333, subd. (a).)
Second, if the County tentatively approves the immediate rezoning, it forwards its
approval to Cal Fire for final approval. (Gov. Code, § 51333, subd. (b).) If Cal Fire
approves a timberland conversion permit for the project, it also gives final approval to the
immediate rezoning. (Gov. Code, § 51133, subd. (b).) It then notifies the County of its
approval, and the County removes the property from the TPZ zone. (Gov. Code,
§ 51133, subd. (b).)
Upon immediately rezoning a parcel from TPZ, the County will impose a tax
recoupment fee based on a reassessment of the property’s value in its rezoned use. (Gov.
Code, § 51142.)
Here, the County tentatively approved the immediate rezoning as part of
approving the project. It rezoned 662 acres of the West Parcel from TPZ to “Specific
Plan – Martis Valley West.” The rest of the West Parcel, 390 acres, remained in TPZ.
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The County also rezoned 670 acres of the East Parcel from single-family residential and
commercial uses to TPZ. The rest of the East Parcel, 5,706 acres, remained in TPZ.
The County made additional findings in addition to those required under
Government Code section 51133 for a rezoning that must be approved by Cal Fire. (See
Gov. Code, § 51134.) Its findings included the two findings required under Government
Code section 51133: (1) the immediate rezoning would be in the public interest; and (2)
the rezoning was not inconsistent with the purposes of article XIII, section 3(j).
B. Discussion
Generally, the adoption of a zoning ordinance is a legislative act. (Arnel
Development Co. v. City of Costa Mesa (1980) 28 Cal.3d 511, 514.) Judicial review of
legislative action is limited to determining whether the enactment is arbitrary, capricious,
or unconstitutional. (Lockard v. City of Los Angeles (1949) 33 Cal.2d 453, 461-462.)
However, an immediate rezoning under the Act is a quasi-adjudicative act. (See
Sierra Club v. City of Hayward (1981) 28 Cal.3d 840, 849 (City of Hayward)
[cancellation of Williamson Act contract is adjudicative act].) Similar to the Williamson
Act, the Act required the County to hold a public hearing on the issue and exercise its
discretion in weighing the evidence and making findings particular to the specific
property before it. Our review, therefore, is to determine whether the County followed
the required procedure and whether substantial evidence supports the County’s required
findings. (Ibid.; see Code Civ. Proc., § 1094.5.)
Sierra Watch contends the County did not make a required finding that “ ‘the
continued use of land in the timber production zone is neither necessary nor desirable.’
(Gov. Code, § 51130.)” Sierra Watch asserts the County was required to make this
determination but did not, nor could it because the West Parcel land is a productive
forest. Instead, according to Sierra Watch, the County adopted a series of unlawful
findings that purported to justify the immediate rezoning on “other, unrelated grounds.”
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In making its assertion, Sierra Watch omits a crucial part of the statute it quotes.
The complete sentence reads: “The purpose of this article [the article authorizing
immediate rezoning] is to provide relief from zoning as timberland production pursuant
to [the Act] only when the continued use of land in the timberland production zone is
neither necessary nor desirable to accomplish the purposes of Section 3(j) of Article XIII
of the Constitution and of [the Act].” (Gov. Code, § 51130, italics added.)
The Act goes on to require the County, before approving an immediate rezoning,
to make written findings “that immediate rezoning is not inconsistent with the purposes
of subdivision (j) of Section 3 of Article XIII of the California Constitution and of [the
Act],” and that the immediate rezoning is in the public interest. (Gov. Code, § 51133,
subd. (a)(2), (3).) These findings, which the County made, are not materially different
from determining that continuing the timberland use is neither necessary nor desirable to
accomplish the purposes of Article XIII, section 3(j) and the Act. Thus, the County made
the determinations required by the Act. The issue before us is whether substantial
evidence supports the County’s findings. (See Save Panoche Valley v. San Benito
County, supra, 217 Cal.App.4th at pp. 516-517 [where county cancelled Williamson Act
contract based on the public interest, review is limited to whether substantial evidence
supports that finding].)
To support its findings, the County relied upon the following evidence. It found
the rezoning was not inconsistent with the purposes of Article XIII, section 3(j) and the
Act because “placing 670 acres of the East Parcel back into TPZ would create a
contiguous 6,376 acre expanse of TPZ lands devoted entirely to forest management and
related compatible uses. The extensive spatial arrangement of the East Parcel supports an
increased economy of scale in regard to forest management on the subject timberlands.
The balance of enhancing the TPZ lands within the East Parcel, while providing for
residential demands of the area within the West Parcel, is the result of lengthy and
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deliberate consideration, design, and mitigation that is neither premature nor unnecessary
in nature.”
The County found that the immediate rezoning was in the public interest because
“the withdrawal of the West Parcel from TPZ would provide both environmental and
economic benefits for the public. The rezone of the West Parcel would allow for the East
Parcel to be placed back into TPZ which would result in an eight (8) acre increase in
lands zoned TPZ in the Martis Valley. This action would create 6,376 acres east of
Highway 267 that would be preserved, which is nearly 25% of the total acreage in Martis
Valley. Further, placement of the East Parcel back into TPZ will retire 600 residential
units, thereby reducing the overall residential density of the area, and providing increased
spatial continuity of the preserved lands within the East Parcel. The rezone of the West
Parcel will also provide benefit to the local tax base through increased property and
business tax revenue generated within the new development.”
This evidence and other evidence in the record constitute substantial evidence in
support of the County’s findings that the immediate rezoning was not inconsistent with
the purposes of Article XIII, section 3(j) and the Act and that it was in the public interest.
With the immediate rezoning, the public not only maintains the amount of protected
timberland, it increases it. By rezoning 662 acres of the West Parcel for development and
rezoning 670 acres of the East Parcel as TPZ, the County actually increases the amount of
existing timberland that will be zoned TPZ. The project and the rezoning will also
discourage unnecessary conversion of timberland by requiring the East Parcel to be sold
to a land trust or to become subject to a conservation easement restricting the East
Parcel’s use, thereby preserving the entire East Parcel as forest and open space.
Other evidence in the record supports the County’s findings. A registered
professional forester concluded that “[w]hen considered with the East Parcel zoning, the
application for immediate rezone for the West Parcel is not inconsistent with” the
purposes of Article XIII, section 3(j) and the Act. The EIR stated that the rezoning would
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connect an estimated 50,000 acres of open space and forest lands east of State Route 267.
Timber harvesting plans would be submitted to Cal Fire for any tree harvesting done on
the West Parcel for the project.
Sierra Watch nonetheless claims the findings are unlawful under the Act for four
reasons: (1) the County did not justify deviating from the normal, 10-year waiting period
in its findings; (2) the County erred by relying on rezoning East Parcel land to TPZ to
justify rezoning West Parcel land out of TPZ; (3) no evidence supports the finding that
the rezoning would address residential demands in the area; and (4) the finding that the
rezoning was in the public interest because it would increase tax revenue was legally
unavailable.
1. Lack of additional findings
Sierra Watch argues that the County’s findings did not comply with the Act
because the County cited no evidence that “following the ten-year rollout for TPZ
rezoning would not serve the ‘purposes that purport to justify cancellation’: the
development of a second-home subdivision.” The Act does not require an agency to
make that finding. Nevertheless, Sierra Watch claims that the California Supreme
Court’s imposition of that requirement in City of Hayward on the cancellation of
Williamson Act contracts under a former version of that statute also applies to immediate
rezoning under the Act. We must explain the Williamson Act and City of Hayward in
some detail in order to address this argument.
Formally known as the California Land Conservation Act of 1965 (Gov. Code,
§ 51200 et seq.), the Williamson Act sought to conserve agricultural lands and to
discourage their premature development into urban uses. To do that, the Williamson Act
authorizes owners of agricultural lands to enter into contracts that restrict the land to
agricultural and open space use for at least 10 years. In return, the property is assessed
for tax purposes based only on its open space use and unaffected by its development
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potential. (City of Hayward, supra, 28 Cal.3d at pp. 850-851.) A landowner could
terminate the contract at any time, but the land’s use was restricted for 10 years from the
notice of termination. This was to deny the tax benefits to short term speculators and
developers. (Id. at p. 852.)
The Williamson Act authorizes immediate cancellation of the contract. At the
time of the City of Hayward ruling, the Williamson Act allowed for cancellation “ ‘only
when the continued dedication of land under such contracts to agricultural use is neither
necessary nor desirable for the purposes of (the act).’ ” (City of Hayward, supra,
28 Cal.3d at p. 852, quoting former Gov. Code, § 51280 [Stats. 1965, ch. 1443, § 1].)
The governing agency could approve the cancellation only upon finding the cancellation
was “not inconsistent with the purposes” of the Williamson Act and was in the public
interest. (Former Gov. Code, § 51282 [Stats. 1978, ch. 1120, § 11].)
Reviewing an immediate cancellation of a contract, the California Supreme Court
in City of Hayward concluded the evidence was insufficient to sustain “the ultimate
determination of consistency with the purposes of the act.” (City of Hayward, supra,
28 Cal.3d at p. 854.) The court stated that the 10-year nonrenewal process was the
intended and general vehicle for contract termination. The cancellation procedure was
included as “ ‘a means of dealing with strictly emergency situations where the public
interest no longer dictates that the contract be continued[.]’ [Citation.]” (Id. at p. 852.)
The nonrenewal process was the preferred termination method, and cancellation was
“impermissible ‘except upon extremely stringent conditions.’ [Citation.]” (Id. at p. 853.)
If cancellation was easily available, “the act would simply function as a tax shelter for
real estate speculators.” (Ibid.)
The Supreme Court held that in order to show the cancellation was not
inconsistent with the purposes of the Act, “there must be substantial evidence that
awaiting the normal termination of the contract would fail to serve the purposes that
purport to justify cancellation.” (City of Hayward, supra, 28 Cal.3d at p. 854.) The court
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also held that “cancellation is inconsistent with the purposes of the [Williamson Act] if
the objectives to be served by cancellation should have been predicted and served by
nonrenewal at an earlier time, or if such objectives can be served by nonrenewal now.”
(Id. at p. 855.)
Had the story ended there, one could argue as Sierra Watch does here that because
the Act requires the same findings as the Williamson Act did for immediate rezoning or
cancellation, City of Hayward’s interpretation of the additional findings required under
the Williamson Act also applies to the Act. The Legislature, however, reacted swiftly to
the City of Hayward decision. It adopted a number of amendments to the Williamson Act
to limit, and in some instances reverse, City of Hayward’s reach. It declared that the
purpose of the amendments “is not to weaken or strengthen the Williamson Act but
simply to clarify and make the law workable in light of problems and ambiguities created
by the California Supreme Court decision in the case of Sierra Club v. City of Hayward,
28 Cal.3d 840.” (Stats. 1981, ch. 1095, § 8.)
The amendments eliminated the additional findings the Supreme Court had
imposed and which Sierra Watch seeks to impose here. The Legislature expressly
defined in Government Code section 51282 the types of evidentiary findings the
governing agency had to make to declare a cancellation was consistent with the
Williamson Act’s purposes and was in the public interest. (Gov. Code, § 51282, subds.
(b), (c) [Stats. 1981, ch. 1095, § 2].) The amended statute stated that the approving
agency “shall not be required to make any findings other than or in addition to those
expressly set forth” in Government Code section 51282 or in CEQA. (Gov. Code,
§ 51282, subd. (f).) Of relevance here, none of the mandatory findings require an agency
approving a cancellation to show that not renewing the contract and waiting 10 years
would fail to serve the purposes of the cancellation, or that the objectives to be served
could not have been predicted 10 years earlier.
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“The law is well established that although construction of a statute is a judicial
function, where a statute is unclear, a subsequent expression of the Legislature bearing
upon the intent of the prior statute may be properly considered in determining the effect
and meaning of the prior statute.” (Tyler v. State of California (1982) 134 Cal.App.3d
973, 977.) By declaring that the amendments enacted in response to City of Hayward
were neither to weaken nor strengthen the Williamson Act but were simply to clarify the
law, the Legislature indicated its understanding that the correct meaning of the law,
except as expressly changed by the amendments, had always been the same, and that an
intervening judicial interpretation had imposed an aberrant interpretation of legislative
intent. (See id. at pp. 976-977.)
In other words, the Legislature never intended to require agencies, when
determining whether a cancellation of a Williamson Act contract is consistent with the
statute and is in the public interest, to also find that waiting 10 years would fail to serve
the purposes of the cancellation or that the objectives to be served could not have been
predicted 10 years earlier. (See Friends of East Willits Valley v. County of Mendocino
(2002) 101 Cal.App.4th 191, 204-205 [after 1981 amendments, City of Hayward’s
requirement to find an emergency situation exists no longer applies].) As a result, City of
Hayward has lost its precedential value on this issue, and, accordingly, has no
precedential value in interpreting the same language in the Act, especially when, as here,
no other evidence in the Act or the record indicates such additional findings should be
required. We do not apply the case here.
2. Reliance on rezoning East Parcel to TPZ
Sierra Watch contends that the County’s reliance on the addition of TPZ land to
the East Parcel as a basis for its findings contravened the plain language of the Act. It
argues the Act required the County to focus only on the land being rezoned in the West
Parcel, Sierra Watch asserts, because “the Act authorizes immediate rezoning ‘only when
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the continued use of land in the [TPZ] is neither necessary nor desirable.’ (Gov. Code,
§ 51130, (emphasis added).)” Again, Sierra Watch ignores the full statute.
The Act authorized the County to approve the rezoning of the West Parcel if the
County found that continuing that land as TPZ was neither necessary nor desirable to
accomplish the purposes of Article XIII, section 3(j) and the Act. (Gov. Code, § 51130.)
Determining whether continuing the land as TPZ is neither necessary nor desirable to
accomplish the Act’s purposes will depend in large part on the parcel’s relation to
surrounding lands and land uses and the contextual circumstances. This case proves why
that is so. If the County had denied the rezoning merely because it took 662 acres of the
West Parcel out of the TPZ, the County would not have recognized that the concomitant
rezoning of the East Parcel satisfied the Act’s policy of maintaining the optimum amount
of timberland. Denying the rezoning would have left 670 acres of East Parcel forestland
zoned for the development of over 1,200 dwelling units, and the optimum amount of
timberland in this circumstance would not have been maintained. The Act did not
prohibit the County from analyzing the proposed rezoning’s compliance with the policies
of the Act and Article XIII, section 3(j) in that broader view.
Sierra Watch argues that we cannot interpret the Act in this manner because the
Legislature, according to City of Hayward, intended to make immediate rezoning
“exceedingly rare,” and allowing the County to rezone the West Parcel based on rezoning
a different parcel would create a loophole to allow landowners to remove land from the
TPZ immediately merely by locating another parcel to replace it. We have already
determined that City of Hayward is not relevant to interpreting the Legislature’s intent on
this issue. And the location of another parcel by itself will not satisfy the requirements of
the Act.
We find the Legislature’s intent from the language the Legislature adopted,
including the language Sierra Watch continues to ignore. The Legislature stated its intent
was to maintain the optimum amount of timberland and that an immediate rezoning could
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occur only when maintaining land as TPZ was neither necessary nor desirable to
accomplish the purposes of Article XIII, section 3(j) and the Act. If the County found
that circumstance to exist here, and substantial evidence supports its findings, our
analysis is finished, no matter how common or rare the occurrence.
3. Evidence of residential demand
Sierra Watch contends that no evidence in the record supports the County’s
statement that the rezoning “would address ‘residential demands of the area.’ ” The
project is a second-home resort community with less than 20 percent of the homes
projected to be occupied full time. And the vacancy rate for homes in the area was 51
percent in 2010.
The evidence, however, indicates the project would meet a particular residential
demand in the area—affordable employee housing. The County’s justification for its
finding appears in this sentence: “The balance of enhancing the TPZ lands within the
East Parcel, while providing for residential demands of the area within the West Parcel, is
the result of lengthy and deliberate consideration, design, and mitigation that is neither
premature nor unnecessary in nature.” A development agreement approved by the board
of supervisors required the project to include employee housing for 47 full time
equivalent employees and to pay an in lieu fee for additional employee housing. Even
Sierra Watch acknowledged that affordable housing was in short supply in the area. The
County’s finding that the project would meet residential demand is supported by
substantial evidence.
4. Evidence of tax benefit to support the findings
Sierra Watch contends that the County’s findings under the Act were unlawful
because the County stated the rezoning benefited the public interest by increasing
property and business tax revenue. Sierra Watch claims that this finding is legally
unavailable. City of Hayward stated that “[a]ny decision to cancel land preservation
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contracts must . . . analyze the interest of the public as a whole in the value of the land for
open space and agricultural use. Of course, the interests of the local and regional
communities are also important, but no decision regarding the public interest can be
based exclusively on their parochialism.” (City of Hayward, supra, 28 Cal.3d at p. 856.)
Sierra Watch asserts that because the County considered “only the local community and
its tax base—and not the state’s interest in preserving valuable timberland—its finding is
invalid as a matter of law.”
The County did not find the rezoning was in the public interest solely based on the
local community and its tax base. It found the rezoning was in the public interest because
it would provide “both environmental and economic benefits for the public.” Those
benefits allow for an increase in the amount of total preserved timberland by eight acres
and the protection of 6,376 contiguous acres as timberland and some 50,000 contiguous
acres as open space. It would also reduce the number of developable residential units in
the area by 600 units. The County’s findings are not based solely on parochial economic
interests.
Sierra Watch’s objections to the County’s findings under the Act are without
merit. We uphold the County’s findings based on the substantial evidence that supports
them.
COUNTY AND APPLICANTS’ CROSS APPEAL
(C087102)
In their appeal, the County and applicants contend the trial court erred when it
found that the EIR did not adequately address, and that substantial evidence did not
support, its conclusion that the project’s impacts on emergency response and evacuation
plans would be less than significant. We agree with the County and applicants.
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A. Background
The project’s West Parcel is located in what Cal Fire has designated a “Very
High” risk fire hazard severity zone. That zone consists of wildland areas that support
high to extreme fire behavior. Cal Fire currently provides fire protection services to the
site. If the project is approved, the West Parcel development area will be annexed into
the Northstar Community Services District, which will provide fire protection services
for the site through the Northstar Fire Department.
The County has established an evacuation plan for the area. This plan, known as
the Placer Operational Area East Side Emergency Evacuation Plan, was developed to
increase preparedness and facilitate an efficient and rapid evacuation of threatened
communities in the event of an emergency such as a forest fire or flood. The plan
coordinates and assigns responsibilities to federal, state, and local authorities for
organizing and conducting an evacuation.
The county evacuation plan designates Interstate 80 and state routes 267, 89, and
28 as the major evacuation routes in the area. In an emergency, the unified command
will designate which of those routes will be used for evacuation and which for emergency
vehicle ingress and egress. When necessary, surface streets may also be designated for
both uses. The California Highway Patrol will be primarily responsible for traffic control
during an evacuation.
To determine whether the project would significantly interfere with the county
evacuation plan, the EIR relied on the Guidelines’ Appendix G checklist to provide a
standard of significance. Under that standard, the project’s impact would be significant if
the project would “impair implementation or physically interfere with an adopted
emergency response plan or emergency evacuation plan[.]”
The draft EIR concluded that any interference the project may cause with an
emergency evacuation plan would be less than significant. One reason was the project
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would provide emergency vehicle access. In addition to the main entrance, the project
would have two emergency vehicle access routes from route 267 to the West Parcel’s
development area. Both would provide access only for emergency vehicles unless they
were needed to evacuate residents.
The draft EIR relied on other reasons. At the project’s build-out, vehicle trips
generated by the project would represent an incremental increase over existing traffic
volumes. However, the increase would be insufficient to interfere with the use of route
267 under the county evacuation plan. The project would not cut off or otherwise modify
any existing evacuation routes.
Also, the project would develop a fire protection plan that would include a project
emergency and evacuation plan. Referred to as the project Emergency Preparedness and
Evacuation Plan, the project emergency plan states that all project evacuation procedures
will be conducted according to the County’s evacuation plan and Northstar Fire
Department procedures. In addition to designating the site’s two emergency vehicle
access routes, the project emergency plan designates secondary emergency access roads
inside the project area that will connect cul-de-sacs and dead end streets so that every
parcel has two routes for ingress and egress during an emergency. Signs identifying the
emergency access routes will be posted.
The project emergency plan states that in the unlikely event where time necessary
for evacuation is insufficient, it may be safer to shelter-in-place rather than evacuate. The
plan requires the project’s CC&Rs to include a requirement that the homeowners
association, prior to construction of the 200th unit, design and construct an amenity to
serve as a shelter-in-place location. Where shelter-in-place is required, this amenity
would be open to project residents and to the public.
The draft EIR also concluded that the project’s contribution to the cumulative
impact on implementation of the county evacuation plan was not cumulatively
considerable. Evacuation from other nearby projects would occur via local roads to route
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267. But, “[w]hile conditions on local roadways and SR 267 during an emergency
evacuation could be congested, no known element of the proposed project or cumulative
projects would prevent or impede evacuation, or result in physical interference with an
evacuation plan such that evacuation could not occur.” The project’s primary access road
and its two emergency vehicle access roads would “provide[] sufficient egress in the
event of an emergency evacuation.”
Commenters on the draft EIR expressed concern that the project would increase
the risk of fire hazards and response times of emergency responders to the project site
and area, and that in the event of a wildfire or seismic event that requires evacuation,
route 267 would be limited in its capacity to support evacuation in a timely manner.
In a master response in the final EIR, the County elaborated on the project’s
emergency plan. In addition to complementing the County’s evacuation plan, the
emergency plan would enforce the various laws and regulations that will apply to the
development to reduce the risk of wildfire. Those fire prevention regulations and
measures impose defensible space, fuel maintenance, structural and infrastructure
requirements, and building code requirements. The project emergency plan would also
impose requirements for water supply and flow, emergency access, evacuation signage,
public education and communication, forestry management, measures to address onsite
hazards, and development restrictions.
The final EIR also discussed a study undertaken to analyze the potential impact.
The County’s transportation consultants, LSC Transportation Consultants, modeled how
long it would take for the West Parcel development to evacuate in the event of a wildfire
using route 267 and evacuating north to the Truckee airport during the peak of the
summer tourist season. Conservatively assuming that all of the project’s residences
would be occupied and evacuated (935 vehicles), and that peak traffic would already
exist on the highway, the consultants estimated based on route 267’s capacity from the
site north to the Truckee Airport that it would take approximately 1.3 hours for all
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vehicles to exit the project site under existing-plus-project conditions, and 1.5 hours
under cumulative-plus-project conditions. The estimate for the cumulative condition
assumed that intersection improvements to route 267 planned in the County’s capital
improvement program had been implemented but route 267 had not been widened from
two lanes to four lanes, as has been planned.
The final EIR stated “the proposed project, or any project that adds people to an
area, would increase the amount of time to complete an evacuation.” But it then stated
“this does not necessarily generate a safety risk. Emergency personnel who issue an
evacuation order take into account the time needed to implement an evacuation when
determining when and where to issue evacuation orders. For events like wildfires, the
fires are tracked from the moment of discovery, and risk to nearby development is
assessed on a regular basis. Hours or days of lead time could be available to assess risk
and make evacuation determinations. During these periods, peak occupancy conditions
typically do not occur as drifting smoke, awareness of the risk, or other factors result in
people avoiding the area.” From this additional analysis, the final EIR concluded that the
project’s impact on emergency evacuation plans would be less than significant.
The trial court concluded that substantial evidence did not support the EIR’s
significance finding and that the EIR’s analysis was incomplete. It stated, “The EIR
identifies the area as a very high fire hazard severity zone but then fails to present a
sufficient analysis to address the impacts of the project on emergency evacuation
procedures. The EIR lacks a meaningful discussion on this issue, relying more on
conclusions rather than facts. Even when considering the LSC Transportation
Consultants memorandum . . . the analysis is lacking. The memorandum fails to present
sufficient discussion that integrates into the overall analysis to support the EIR’s
conclusions. Simply put, the EIR, even when read in conjunction with LSC’s
memorandum, fails to adequately address the Project’s impacts on emergency
evacuations in the area – especially in light of its high fire hazard status – so as to leave
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the analysis incomplete and failing to properly disclose to the public the actual impacts of
the Project.”
B. Discussion
The County claims the EIR adequately discussed the potential impact and that
substantial evidence supports its determination of no significant impact. Sierra Watch
disagrees and asserts the EIR did not meaningfully analyze compliance with the standard
of significance and did not satisfy CEQA on numerous grounds.
CEQA requires an EIR to analyze “any significant environmental effects the
project might cause or risk exacerbating by bringing development and people into the
area affected. For example the EIR should evaluate any potentially significant direct,
indirect, or cumulative environmental impacts of locating development in areas
susceptible to hazardous conditions (e.g., . . . wildfire risk areas), including both short-
term and long-term conditions . . . .” (Guidelines, § 15126.2, subd. (a).) “[W]hen a
proposed project risks exacerbating those environmental hazards or conditions that
already exist, an agency must analyze the potential impact of such hazards on future
residents or users. In those specific instances, it is the project’s impact on the
environment—and not the environment’s impact on the project—that compels an
evaluation of how future residents or users could be affected by exacerbated conditions.”
(California Building Industry Assn. v. Bay Area Air Quality Management Dist., supra,62 Cal.4th at pp. 377-378, italics omitted.)
Developing new homes and stores in a very high fire hazard area risks
exacerbating the hazard by putting more people and property in harm’s way and
increasing the chance of a wildfire starting. The development increases the number of
people who may need to be rescued, rendered aid, and evacuated and the amount of
property that may need to be protected. Thus, when we review for whether a project may
interfere with implementation of an emergency response and evacuation plan, we are
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primarily concerned that the public and decisionmakers understand the impact the project
will have on the new residents’ ability to evacuate and on emergency personnel’s ability
to protect and service the residents and their property consistent with the adopted plan.
We conclude substantial evidence supports the EIR’s conclusion that the project
will not significantly impair implementation or physically interfere with an adopted
emergency response plan or emergency evacuation plan. The EIR recognized that the
project would add people to the area, which would increase the amount of time to
complete an evacuation. But it concluded the impact was not significant for a number of
reasons.
The project would not interfere with the county evacuation plan’s planned
operation. The project would not cut off or otherwise modify any of the County’s
evacuation routes. Nothing in the project itself or other cumulative projects would
prevent or interfere with the county evacuation plan such that an evacuation could not
occur.
The project would provide two emergency vehicle access routes to the property in
addition to the main entrance. This gave the project three routes that could be used for a
combination of evacuation and emergency access. And, although not expressly stated in
the EIR, one of the emergency access routes connects to an old logging road described in
the EIR that could facilitate an evacuation to route 267 or to the west away from route
267. Additionally, the project would include internal secondary emergency access routes
so that every parcel had two routes for ingress and egress. The project would eventually
provide an amenity that would allow people to shelter in place if they were unable to
evacuate the site.
To address the project’s impact on the project residents’ ability to evacuate, the
LSC study provided a reasonable assessment of what may happen if the project had to
evacuate on route 267 to the north. Based on the highway’s capacity on one of its busiest
days, the study found it would take 1.3 hours to evacuate the project site at full capacity
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and 1.5 hours cumulatively with other projects. In concluding the impact was less than
significant, the County implicitly determined that those times were reasonable under the
modeled circumstances.
The County directs us to other evidence in the record to support the EIR’s
conclusion. The project will not significantly affect the Northstar Fire Department’s
response times. The EIR estimated it would take a crew nine or 10 minutes to respond to
a service call from the project site, which met recommended response times for rural
areas. The additional population, however, would necessitate additional staffing. The
project would pay an impact fee to help fund additional equipment, and it would pay a
separate fee under the development agreement to help fund hiring two additional
firefighters over time. The County asserts that these measures will improve the fire
department’s ability as a first-responder to extinguish fires that may start in its
jurisdiction and keep them from spreading.
The County also relies on the project’s fire prevention standards and requirements
that will be imposed on the project to mitigate the residents’ exposure to wildfire hazards.
The numerous regulations and rules that will regulate how property owners maintain their
properties should also reduce the risk and spread of a wildfire. While these measures do
not address what will happen once an actual evacuation has begun, they do show the
project will take steps to reduce the risks of wildfire and having to evacuate in the first
place.
Sierra Watch attacks this evidence on numerous grounds. It criticizes the EIR for
not disclosing how much the project would increase evacuation times or why such an
increase would not create a safety risk, for not analyzing the time residents would need to
evacuate the area once they reach route 267, and for not addressing how emergency
response times would be affected by a mass evacuation.
Sierra Watch challenges the final EIR for relying on the project’s emergency plan
and other fire prevention standards to address the impact. It claims these standards do not
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address what will happen in an evacuation. Relying on two emergency access routes
does not address the issue as both will funnel traffic to and from route 267, which
emergency responders and evacuees will use. And the EIR did not discuss using the
logging road as an alternate evacuation route.
Sierra Watch asserts the traffic consultants’ study does not provide the missing
information and the County does not explain how it determined the study’s estimated
evacuation times were acceptable and not significant. Sierra Watch also argues the study
does not address uncontrollable factors such as a fast-moving wildfire, and its
assumptions of an orderly evacuation are unsupported and optimistic.
Sierra Watch contests the EIR’s conclusion that the project’s contribution to
evacuation traffic using route 267 will not be significant when the EIR earlier concluded
that the project’s contribution to route 267 traffic under peak conditions will be
significant.
These and other criticisms asserted by Sierra Watch raise the overarching question
of how should an EIR address a project’s impact on the implementation of evacuation
plans. Numerous scenarios could be modeled and discussed; some would show a
significant impact and others would not. The responses to many of Sierra Watch’s
criticisms could change depending on the evacuation scenario being addressed.
The County explained the inherent difficulty of the task in response to a comment
on the final EIR. The commenter raised numerous criticisms of the EIR’s analysis
similar to those raised by Sierra Watch, and the County explained why the EIR’s analysis
was satisfactory and why a more detailed analysis was not reasonable or required. We
quote the response in part:
“The comment suggests that 1.5 hours is a long time in the face of a serious wind
driven fire event, and suggests that multiple scenarios should have been evaluated. . . .
The comment suggests that the analysis should assess the rate at which fires would
advance, considering such variables as wind speeds, direction, humidity and fuel
83
moisture content considerations, topography, time of day, and fuel loadings (including
brush). Because of the number of variables involved in the behavior of any given fire
event, the number of scenarios that could be defined would be so numerous that selection
of any one or several would be speculative and not necessarily representative. The more
tangible metric, and a reasonable indication of the effect of the project on emergency
evacuation, is the time required for evacuation of the project itself, and the effect of the
project on overall evacuation times, as described in the EIR. [¶] . . . [¶]
“The comment also identifies two specific situations that might happen—a family
van towing a boat trailer that tips over and blocks the evacuation route, and someone at
the end of a queue responding to embers and smoke drifting across the road. These are
speculative situations, one of a myriad that cannot meaningfully be incorporated into the
quantitative analysis of time needed to evacuate the [project] site.”
Courts have made clear that “CEQA does not require evaluation of speculative
impacts. (Guidelines, § 15145.)” (National Parks & Conservation Assn. v. County of
Riverside (1999) 71 Cal.App.4th 1341, 1364.) “Agencies are not required to engage in
‘sheer speculation’ as to future environmental consequences of the project.” (Chaparral
Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134, 1145, quoting Kings County
Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 738.)
CEQA also does not require an analysis to be exhaustive. It is “not necessary that
the analysis be so exhaustively detailed as to include every conceivable study or
permutation of the data.” (San Joaquin Raptor Rescue Center v. County of
Merced (2007) 149 Cal.App.4th 645, 666; Guidelines, § 15151.) “ ‘ “[A]n EIR need not
include all information available on a subject[;]” . . . [all that is required is] sufficient
information and analysis to enable the public to discern the analytic[al] route the agency
traveled from evidence to action.’ [Citation.] ‘A project opponent or reviewing court can
always imagine some additional study or analysis that might provide helpful
information. . . . That further study . . . might be helpful does not make it necessary.’ ”
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(North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013)
216 Cal.App.4th 614, 639-640.)
These points apply when we consider an EIR’s review of a project’s potential to
disrupt implementation of an evacuation plan. It is difficult to predict how an actual
evacuation will unfold and determine how a project may impact it. An evacuation is
developed and directed in real time by those conducting it in response to the unique
conditions before them. As a member of the County’s office of emergency services
explained to the planning commission, an evacuation is “always going to be difficult.
There’s no evacuation that ever goes textbook smooth. It’s like running a play in
football. You call the play and then you hope things go as best as they can.”
Under these circumstances, it is important we remember that a lead agency “has
considerable discretion to decide the manner of the discussion of potentially significant
effects in an EIR.” (County of Fresno, supra, 6 Cal.5th at p. 515.) “This would include
determinations regarding the methodology for studying an impact, whether a particular
method of analysis is reasonably feasible, and whether it would yield information that
would be both reliable and informative. [Citations.]” (Kostka & Zischke, supra,
§ 23.34.)
“CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not
mandate perfection, nor does it require an analysis to be exhaustive. (Guidelines,
§ 15151.)” (Kings County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at
p. 712.) “An EIR is required to evaluate a particular environmental impact only to the
extent it is ‘reasonably feasible’ to do so.” (Rialto Citizens for Responsible Growth v.
City of Rialto (2012) 208 Cal.App.4th 899, 937, quoting Guidelines, § 15151.)
The evidence here indicates that the County did not abuse its discretion in
determining its methodology for evaluating the impact to its evacuation plan or selecting
the standard of significance, and that substantial evidence supports the EIR’s conclusion.
The EIR’s analysis provides a reasonable explanation under modeled circumstances of
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how the project will affect its residents’ ability to evacuate and emergency responders’
ability to access the area and the site.
Regarding Sierra Watch’s opposition, many of its criticisms, particularly of the
LSC study, seek additional analysis based on different evacuation scenarios which,
although possibly helpful, is not necessary in this circumstance. Those concerns are
answered by the County’s discretion to determine its methodologies for analyzing the
impact and the reasonableness of the methodologies the County used.
The EIR’s conclusion that the project’s traffic would in general significantly
impact route 267 traffic but not significantly impact that route in an evacuation is not
necessarily inconsistent. Whether a given impact is significant depends on the context.
Addressing the same argument raised in Squaw Valley, we stated in an unpublished
portion of our opinion, “An agency, for example, might find a traffic delay of 2.5 seconds
significant in some contexts when considering impacts to traffic conditions (as the
County did here), and, without being fatally inconsistent, also find a similar delay
insignificant when considering impacts to emergency evacuation plans. Or to put it
differently, as the EIR here indicated, an agency might find time the sole relevant
consideration when evaluating impacts to traffic conditions, but then find public
safety the guiding consideration when evaluating impacts to emergency evacuation plans.
Again, the context matters. And Sierra Watch has not shown the County abused its
discretion merely because its thresholds of significance for fire-related impacts were not
equivalent to its thresholds of significance for transportation-related impacts.” (Squaw
Valley, supra, 69 Cal.App.5th at p. 104.)
The myriad of possible emergency scenarios could result in an evacuation where
project traffic would not adversely affect the highway’s level of service. Incident
command’s designation of evacuation routes and emergency vehicle access routes, as
well as law enforcement’s control of traffic could also reduce the impact on route 267.
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The EIR is not required to analyze the worst-case scenario. (High Sierra Rural Alliance
v. County of Plumas (2018) 29 Cal.App.5th 102, 126.)
Sierra Watch criticizes the County’s reliance on the project’s fire prevention
measures for mitigating wildfire risk as evidence of mitigating evacuation impacts.
While the evidence does not directly address impacts on an actual evacuation, it explains
the measures the project is taking to mitigate its impact on an evacuation by reducing the
chances of wildfire occurring on its site and the need for an evacuation. Evidence in the
record supporting the EIR’s analysis indicates that fire prevention measures such as
clearing brush and thinning trees significantly decrease the rate at which a wildfire may
spread. The evidence is relevant for that purpose.
Sierra Watch asserts the EIR’s reliance on the project emergency plan is
insufficient because the plan does not address nearby areas, route 267’s capacity, or the
project’s impacts on evacuation, and that its mention of a shelter-in-place amenity is not
an adequate substitute for an evacuation plan. The project plan in effect is a supplement
to the county evacuation plan. Its purpose was not to address the evacuation of other
areas or serve as an environmental review of a project evacuation; it was to ensure the
project would evacuate in conformity with the county plan. The project emergency plan
did not consider route 267’s capacity, but the LSC study did. And the shelter-in-place
facility is not proposed as a substitute. It is a contingency if the authorities order
residents to shelter in place and not evacuate.
Sierra Watch argues the provision of two emergency access roads does not support
the EIR’s conclusion because each of these roads funnel to route 267. But without
knowing how the authorities will direct the use of route 267 and the project’s roads in an
actual evacuation, it would be speculative to conclude that just because all roads lead to
route 267 the impact is significant. The project will provide three roads for ingress and
egress that could be used for evacuation and access, and one of the emergency access
routes could provide an alternate evacuation route away from route 267.
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Sierra Watch criticizes the County’s reliance on the Northstar Fire Department’s
response times when those were calculated for emergency medical services calls and
structure fires, not a wildfire-scale disaster that would impact response times. The
project’s payment of fees to support hiring additional firefighters has the same fault. But
the County’s experts concluded the response times were adequate. In addition, first-
responder times are relevant, as first responders will be the first ones to arrive at a fire on
the site. If the fire spreads, the incident command will dispatch additional firefighters
pursuant to mutual aid agreements between various fire agencies in the area. Northstar
Fire will not be the only responding agency.
The only reported case to address impacts on evacuation plans, Clews Land and
Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161 (Clews Land), relied on
similar factors to determine the impact there was not significant. The facts and scale of
that project were very different than here, involving only the potential evacuation of a
horse ranch and a proposed school using a common driveway 1,650 feet long. But the
area was a very high fire hazard zone. (Id. at p. 173.) The court of appeal affirmed the
county’s determination that the school would not significantly impact the parties’ ability
to evacuate. It gave three reasons. Complaints about the driveway’s inadequacy were
speculative. The school would mitigate the possible impact by having an alternate
evacuation route along a dirt road, being in session only part of the year, and closing on
red flag warning days. And the inherent difficulty of evacuating the ranch already
existed and would not be significantly affected by the project. (Id. at p. 194.)
Within the methodology chosen by the County, the EIR considered these and other
factors to find the impact would be less than significant. The project would not prevent
an evacuation using state route 267 or other routes designated in the county evacuation
plan. It would mitigate the possible impact by providing two emergency vehicle access
routes, one of which could provide an alternate evacuation route. The LSC study
addressed route 267’s capacity, and it demonstrated the project could evacuate in a
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reasonable time under the modeled circumstances. The project further mitigated the
impact by providing funding to the first responders for equipment and personnel and by
imposing strict fire prevention requirements. We conclude substantial evidence supports
the EIR’s conclusion that the project’s impact on implementation of the county
evacuation plan will be less than significant.
THE COMMITTEE’S APPEAL
(C087117)
The Committee raises the following contentions, all under CEQA:
(1) The County violated CEQA by approving measures to mitigate the project’s
impacts on greenhouse gas emissions that do not comply with CEQA;
(2) The EIR violated CEQA by not adequately describing the environmental
setting of forest resources or analyzing the project’s cumulative impacts on forest
resources;
(3) The EIR violated CEQA by not addressing feasible measures to mitigate the
project’s impact on traffic;
(4) The EIR violated CEQA by not disclosing the significant impacts that will
occur due to the project’s contribution to the proposed widening of route 267; and
(5) The EIR violated CEQA by not discussing renewable energy options that were
appropriate for the project.
We have already addressed the Committee’s contention regarding the EIR’s
proposed mitigation of greenhouse gas emissions and will not repeat that discussion here.
We turn to the Committee’s other grounds of appeal.
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I
Cumulative Impacts on Forest Resources
The Committee claims the EIR’s analysis of the project’s cumulative impacts on
forest resources does not comply with CEQA and is not supported by substantial
evidence. The Committee asserts the EIR’s analysis violated CEQA because (1) its
description of the environmental setting did not acknowledge extensive tree mortality in
the County caused by drought and bark beetle infestations; (2) the analysis did not
address the project’s cumulative impact; (3) the analysis did not compare the project to
the physical environment; and (4) the analysis did not include the effect of tree loss due
to climate change. We conclude the EIR complies with CEQA and substantial evidence
supports its analysis.
A. Background
The project site and the surrounding area is mostly coniferous forest. The EIR
described the forest resources existing on and near the project site. The description was
based on peer-reviewed field studies and surveys of the site and its environs performed in
2013, 2014, and 2015.
The EIR determined that 651.5 acres of forest land in the West Parcel would be
converted to non-forest, developed uses. This would require removing an estimated
37,723 trees from the West Parcel, an estimated 21,798 of which would have a diameter
at breast height of six inches or larger. Approximately 20,000 of those larger trees were
white fir. The applicants would have to obtain permits from the County and the state to
remove the latter group of trees.
The EIR concluded that the project’s impacts on forest lands and timber resources
would be less than significant. The estimated loss of 651.5 acres of forest land would not
substantially reduce the quantity or quality of these coniferous forest habitats in the
region. Most of the larger trees to be removed are white fir. Sierran mixed conifer and
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white fir forests are common and widely distributed in the region and elsewhere in the
Sierra Nevada, and the amount of forest disturbance and loss would be small relative to
the total amount of those forests existing in the region. No sensitive forest types would
be removed. In addition, the remaining forest lands in both parcels would be zoned TPZ,
and the East Parcel’s forest land would be protected in perpetuity.
Addressing the project’s cumulative impacts on land use plans and forest
resources, the draft EIR first stated that the context or geographic scope of its cumulative
impacts analysis was the Martis Valley and the Truckee-Tahoe region of eastern Placer
County. The EIR would consider impacts from the project in relation to impacts from
other foreseeable development projects and regional and local land use plans that had
been approved or were pending approval within the stated geographic scope. The EIR
identified each of these development projects and land use plans. It concluded that, when
considered with the list of projects and land use plans in the geographic area, the project
as a whole would not create a cumulative impact related to conflicts with any relevant
land use plans.
Despite its earlier statement, the EIR utilized a different method of analysis and
geographic scope when it considered the project’s cumulative impacts on forest
resources. Instead of basing its analysis on comparing the project’s impacts with the
impacts from the listed plans and projects in the region, the EIR based its analysis on a
projection of tree loss from development within the entire county. The analysis went as
follows:
The County’s 1994 Countywide General Plan EIR stated that in 1986, Placer
County contained approximately 423,000 acres of commercial forest land. An estimated
13,600 acres (approximately three percent) of this forest land would be converted upon
buildout of the general plan’s land use diagram by 2010, with additional conversion
expected through 2040. The general plan EIR had determined that this amount of
commercial timber land conversion would be less than significant as mitigated. The draft
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EIR in this case stated that forest land conversion since 1986 had occurred, and continued
to occur, in accordance with the County’s projections.
Using this projection, the draft EIR concluded that the project’s cumulative impact
on forest resources would be less than significant. The project’s conversion of 651.5
acres of forest land cumulatively “would be small, less than one percent relative to the
approximately 400,000 acres” of forest land presumably remaining in the County. The
EIR also stated that not only would the conversion be small, it “would not cause regional
forest conversion projections to be exceeded . . . .”
The EIR further stated that the affected West Parcel land consists of common
forest types which are widely distributed throughout the region and the Sierra Nevada.
Their conversion “would not substantially reduce the quantity or quality of common
forest habitat types in the region.”
In addition, when compared to the development allowed on the East Parcel under
the Martis Valley Community Plan, the project would create a net gain of eight acres of
land zoned TPZ, and the East Parcel would be preserved as forest land in perpetuity,
connecting an estimated 50,000 acres of open space and forest lands. For these reasons,
the draft EIR concluded that “cumulative conversion of forest land would be less than
significant.”
On October 30, 2015, less than 10 days after the County released the draft EIR for
public comment, Governor Jerry Brown declared a state of emergency regarding tree
mortality in state forest lands. In his proclamation, the governor stated that severe
drought and resulting bark beetle infestations across broad areas had caused vast tree
mortality in several regions of the state. The Forest Service estimated that over 22
million trees had died and tens of millions more were likely to die by the end of that year.
The die-off would worsen wildfire risk, threaten people living in impacted areas with
injury from falling trees, and worsen the threat of erosion across watersheds. The
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governor stated, “[R]ecent scientific measurements suggest that the scale of this tree die-
off is unprecedented in modern history[.]”
The Governor ordered state agencies and local governments to remove dead or
dying trees from areas where they threatened power lines, infrastructure, roads, and other
structures. He also ordered state agencies to monitor the tree removal efforts to assess
their effectiveness “in protecting forest health and strengthening forest resilience.”
Responding to the governor’s proclamation, the County board of supervisors on
December 8, 2015, issued its own emergency declaration. The County stated that data
collected by state and federal agencies “demonstrate[d] that tree mortality has reached
epidemic levels across the entire western slope of the Sierra Nevada range which includes
a large portion of Placer County, and this data indicates further tree mortality increases in
the very near future . . . .” County staff stated tree mortality was a “crisis in the Forest
and in Wildland Urban Interface areas across the County.”
The County received few comments on the draft EIR regarding the project’s
impacts on forest resources. One commentator, the North Tahoe Preservation Alliance,
argued the draft EIR’s analysis of the project’s cumulative impacts on timberland
conversion should contain a discussion of the cumulative loss of habitat and forest land
both in the Tahoe region and in the Sierra Nevada. Responding in the final EIR, the
County simply referred the organization to the draft EIR’s discussion of the project’s
contribution to the cumulative loss of forested lands.
After the County released the final EIR in May 2016 without making changes to
the draft EIR’s analysis of forest land impacts, the Committee and the North Tahoe
Preservation Alliance, in a jointly submitted letter, criticized the EIR’s cumulative
impacts analysis. They contended that the analysis’s comparison of the acreage to be
converted with the 400,000 acres of available forest land was not an adequate analysis;
the County had to determine the cumulative impact based on the combined impact of
other projects. The Committee also stated that the analysis had to include the conversion
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of forest land resulting from climate-related influences such as drought, wildfire, and
bark beetles, and that the analysis could not utilize the buildout of the East Parcel
authorized under the community plan for its baseline.
Responding, the County stated the draft EIR’s analysis of cumulative impacts was
adequate. It said that “[e]stimating climate-related forest loss due to drought, wildfire, or
bark beetle, as suggested, would be speculative.” The EIR used the Countywide General
Plan EIR and reasonable assumptions regarding ongoing forest conversion in the area to
determine whether the project’s contribution to cumulative forest conversion was
significant. The County also stated it used existing physical conditions as its baseline for
the analysis, but it also discussed the buildout authorized under the community plan to
disclose the project’s existing setting and effects.
At one of the planning commission’s hearings on the project, a district ranger of
the Tahoe National Forest addressed the issue of tree mortality. She said, “We have
significant issues in other parts of the state where whole hillsides are red because the
trees have died due to mortality related to drought and increases in bug populations. . . .
We’re blessed that we don’t have as much of that problem here locally either at Lake
Tahoe or on the Truckee side, but I believe that it’s probably coming our direction. I
know that the west side of the Tahoe National Forest definitely has more mortality today
than they had a year ago.”
B. Discussion
The Committee contends the EIR’s analysis of the project’s cumulative impact on
forest land conversion was not supported by substantial evidence and violated CEQA’s
procedural requirements for a number of reasons: (1) the 1986 baseline and setting used
from the 1994 general plan EIR were outdated and inaccurate as they did not disclose the
tree mortality that had occurred within the County, which was the geographical scope of
the cumulative impacts analysis; (2) the cumulative impact analysis improperly focused
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on the individual project’s relative effects instead of the cumulative effect the project and
other related projects will have on forest resources; (3) the EIR used an improper plan-to-
plan comparison by comparing the proposed project with the development allowed on the
East Parcel under the Martis Valley Community Plan; and (4) the EIR did not consider
climate-driven tree mortality as one of the sources of the cumulative impact on forest
resources.
1. Legal background
Cumulative impacts under CEQA are two or more individual environmental
effects “which, when considered together, are considerable or which compound or
increase other environmental impacts.” (Guidelines, § 15355.) “The individual effects
may be changes resulting from a single project or a number of separate projects.” (Id.,
subd. (a).)
“The cumulative impact from several projects is the change in the environment
which results from the incremental impact of the project when added to other closely
related past, present, and reasonably foreseeable probable future projects.” (Guidelines,
§ 15355, subd. (b).) It is an impact “which is created as a result of the combination of the
project evaluated in the EIR together with other projects causing related impacts.”
(Guidelines, § 15130, subd. (a)(1).) “Cumulative impacts can result from individually
minor but collectively significant projects taking place over a period of time.”
(Guidelines, § 15355, subd. (b).)
CEQA requires an EIR to discuss cumulative impacts when two conditions are
present: (1) the combined impact of the project and other projects is significant, and (2)
the project’s incremental contribution to the combined impact is “cumulatively
considerable.” (Guidelines, § 15130, subd. (a), (a)(2); Communities for a Better
Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 120,
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disapproved of on another ground in Berkeley Hillside Preservation v. City of Berkeley
(2015) 60 Cal.4th 1086, 1109, fn. 3; Kostka & Zischke, supra, § 13.39.)
The combined impact of the project and other projects is significant if it will cause
a substantial, or potentially substantial, adverse change in the physical environment.
(§§ 21100, subd. (d), 21068; Guidelines, §§ 15358, 15382.)
An individual project’s contribution to a cumulative impact is “cumulatively
considerable” if the project’s incremental effects “are significant when viewed in
connection with the effects of past projects, the effects of other current projects, and the
effects of probable future projects.” (Guidelines, § 15065, subd. (a)(3).) In some cases, a
project-specific impact may be insignificant but its contribution to a cumulative impact
may be cumulatively considerable. (See Cleveland National Forest I, supra, 3 Cal.5th at
p. 512 [project’s individual contribution to climate change may be insignificant by itself
but still may be cumulatively considerable].)
CEQA requires no cumulative impact analysis in the EIR if the combined impact
is not significant or the project’s incremental contribution to the impact is not
cumulatively considerable. (San Francisco Baykeeper, Inc. v. State Lands Com. (2015)
242 Cal.App.4th 202, 222; City of Long Beach v. Los Angeles Unified School Dist.
(2009) 176 Cal.App.4th 889, 909; Kostka & Zischke, supra, § 13.40.) If the lead agency
finds either that the combined impact is insignificant or the project’s contribution is not
cumulatively considerable, the EIR must briefly explain the basis for the agency’s finding
and, where the impact is found to be insignificant, identify facts and analysis supporting
the agency’s conclusion. (Guidelines, § 15130, subd. (a), (a)(2).) In making those
explanations, the EIR may, but is not required to, use the Guidelines’ technical
requirements, discussed next, for its cumulative impacts analysis. (See Preserve Wild
Santee v. City of Santee (2012) 210 Cal.App.4th 260, 277-278 [city did not violate CEQA
by relying on regional habitat conservations plans in the EIR to determine the project’s
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incremental effect on a cumulative impact was not cumulatively considerable]; Kostka &
Zischke, supra, § 13.40.)
The Guidelines provide two alternative methods for discussing significant
cumulative impacts in an EIR, and at least one of them must be used. Under the first
method, the EIR may evaluate cumulative impacts using a “list of past, present, and
probable future projects producing related or cumulative impacts, including, if necessary,
those projects outside the control of the agency[.]” (Guidelines, § 15130, subd.
(b)(1)(A).) If the lead agency utilizes a list of projects, “factors to consider when
determining whether to include a related project should include the nature of each
environmental resource being examined, the location of the project and its type.”
(Guidelines, § 15130, subd. (b)(2).)
Under the second method for analyzing cumulative impacts, an agency may utilize
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. Such plans may include: a general plan, regional transportation plan,
or plans for the reduction of greenhouse gas emissions.” (Guidelines, § 15130, subd.
(b)(1)(B).)
Each of these methods has its drawbacks. “The list of projects in the analysis is
often attacked as underinclusive.” (Kostka & Zischke, supra, § 13.42.) And the
projections used in the summary-of-projection method “may be inadequate if they are
outdated or inaccurate.” (Id. at § 13.43.)
Under either method, the EIR should establish the geographic scope of the area
affected by the cumulative impacts. The geographic scope to be analyzed must be
reasonably defined. It “cannot be so narrowly defined that it necessarily eliminates a
portion of the affected environmental setting.” (Bakersfield Citizens for Local Control v.
City of Bakersfield (2004) 124 Cal.App.4th 1184, 1216.) Nor may it be defined so
broadly as to dilute the significance of a project’s cumulative impact. (See Ebbetts Pass
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Forest Watch v. Department of Forestry & Fire Protection (2004) 123 Cal.App.4th 1331,
1352-1353 [upholding agency’s determination not to use the entire Sierra Nevada range
as the geographic area as a large assessment area “could serve to dilute any impacts
estimated to insignificance”].)
The EIR, using either the list method or the projections method, must summarize
the expected environmental effects which the projects will contribute and provide a
reasonable analysis of the cumulative impacts created by the projects. (Guidelines,
§ 15130, subd. (b)(4)-(5).) The analysis should include “all sources of related impacts,
not simply similar sources or projects. (Kostka [& Zischke], supra, § 13.44, p. 653.)”
(City of Long Beach v. Los Angeles Unified School Dist., supra, 176 Cal.App.4th at
p. 907.) It must also examine reasonable, feasible options for mitigating or avoiding the
project’s contribution to any significant cumulative impact. (Guidelines, § 15130, subd.
(b)(5).)
We review an agency’s methodology or criteria for assessing a cumulative impact
for substantial evidence. (South of Market Community Action Network v. City and
County of San Francisco (2019) 33 Cal.App.5th 321, 339.) Also, “[a]n agency’s
selection of the geographic area impacted by a proposed development . . . falls within the
lead agency’s discretion, based on its expertise. (Guidelines, § 15130, subd. (b)(3); City
of Long Beach v. Los Angeles Unified School Dist., [supra,] 176 Cal.App.4th [at p.] 907
[].) Moreover, discussion of cumulative impacts in an EIR ‘ “should be guided by the
standards of practicality and reasonableness.” ’ (City of Long Beach, at p. 912.) Absent a
showing of arbitrary action, a reviewing court must assume the agency has exercised its
discretion appropriately. (Id. at p. 908.)” (South of Market Community Action Network
v. City and County of San Francisco, supra, 33 Cal.App.5th at p. 338.)
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2. Sufficiency of the EIR’s analysis
The County concluded in the EIR that the cumulative conversion of forest land
was less than significant. The County in 1994 had determined that the loss of 13,600
acres of commercial forest land within the County’s boundaries due to planned
development from 1986 through 2010, with additional conversion expected through
2040, was not a significant cumulative effect. Forest land conversion for development
since 1994 had occurred, and continued to occur, in accordance with the County’s
projections. The EIR stated the project’s conversion of 651.5 acres would not cause the
regional conversion projection to be exceeded.
The Committee contends the County’s use of the 1986 baseline and setting was
improper as those numbers were outdated. The EIR defined the geographic scope of its
cumulative impact analysis as the entire County, but it did not disclose the tree mortality
that had occurred in the County since 1986 or since the drought began in 2011 and that
likely existed when the County issued its notices of preparation in 2014 and 2015.
The declarations by the governor and the County may in fact indicate that the 1994
projection is outdated and that, contrary to the EIR’s assertion, fewer than 400,000 acres
of commercial forest land existed at the time the County issued its notice of preparation
due to tree mortality. Generally, an EIR must describe physical environmental conditions
as they exist at the time the notice of preparation is published. (Guidelines, § 15125,
subd. (a)(1).)
In the final EIR, however, the County stated that, “[e]stimating climate-related
forest loss due to drought, wildfire, or bark beetle, as suggested, would be speculative.”
As we stated earlier, CEQA does not require a lead agency to speculate. It requires a lead
agency to describe settings and impacts “in the light of what is reasonably feasible” and
with “a good faith effort at full disclosure.” (Guidelines, § 15151.) An EIR’s discussion
of cumulative impacts “need not provide as great detail as is provided for the effects
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attributable to the project alone. The discussion should be guided by the standards of
practicality and reasonableness . . . .” (Guidelines, § 15130, subd. (b).)
Because the County could not reasonably determine the extent of tree mortality
within its borders caused by drought and infestation, it acted within its discretion to rely
on the General Plan’s projection and the historical compliance with that projection when
to assess the project’s cumulative impact.
The Committee contends the EIR improperly analyzed the project’s cumulative
impact by relying on the project’s relative impact instead of its contribution to the
cumulative impact by it and other projects. We agree that the EIR’s statement that the
project’s conversion would be “small and less than one percent relative to the 400,000
acres” of remaining commercial forest land does not meet CEQA’s procedural
requirement for analyzing cumulative impacts. Focusing on an individual project’s
relative effect does not indicate whether the project’s contribution to the cumulative
impact will be cumulatively considerable in light of its and other projects’ contributions
to the impact. It simply describes the project’s individual impact on existing forest
resources. (See Kings County Farm Bureau v. City of Hanford, supra, 221 Cal.App.3d at
p. 718 [regarding greenhouse gas emissions, “[t]he relevant question to be addressed in
the EIR is not the relative amount of precursors emitted by the project when compared
with preexisting emissions, but whether any additional amount of precursor emissions
should be considered significant in light of the serious nature of the ozone problems in
this air basin”].)
However, the EIR also determined the cumulative impact was not significant
because it was within the projection of converted forest land which the County had
previously determined would not constitute a significant cumulative impact. This was an
appropriate analysis of cumulative impacts. As mentioned above, the Guidelines
authorize a lead agency to utilize a summary of projections contained in a general plan or
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related planning document that evaluates conditions contributing to the cumulative
impact. (Guidelines, § 15130, subd. (b)(1)(B).)
The Committee asserts that the EIR used an improper plan-to-plan comparison as
part of analyzing cumulative impacts by comparing the project with the development
presently allowed on the East Parcel under the Martis Valley Community Plan. (See
Environmental Planning and Information Council v. County of El Dorado (1982) 131
Cal.App.3d 350, 352.) This argument has no merit. The plan-to-plan comparisons were
condemned by courts where the thrust of an EIR’s analysis consisted only of comparing
the proposed project with proposed development allowed under an existing plan instead
of comparing the project to the existing physical environment. (Ibid.; see St. Vincent’s
School for Boys, Catholic Charities CYO v. City of San Rafael (2008) 161 Cal.App.4th
989, 1005 [“an EIR is required to assess the impact of amendments to the general plan
against existing conditions on the ground, not against the impact of the amendments on
the previous version of the general plan”].)
“Where a proposed project is compared with an adopted plan, the analysis shall
examine the existing physical conditions . . . .” (Guidelines, § 15125, subd. (e).) This is
what occurred here. The EIR analyzed the project’s impacts on the existing forestland as
expressed through the general plan’s projection in addition to comparing them with the
development authorized under the existing community plan. That the EIR showed the
project’s contribution to the cumulative impact would be less than that allowed under the
existing community plan did not violate CEQA where the EIR also analyzed the project’s
impacts on the physical environment.
Finally, the Committee contends that the cumulative impacts analysis violated
CEQA because the EIR did not consider climate-driven tree mortality as one of the
sources of forest conversion in the County. The County responds that CEQA defines a
cumulative impact as an impact resulting from the combination of the proposed project
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“with other projects causing related impacts.” (Guidelines, § 15130, subd. (a)(1).) Tree
mortality is not a separate “project” that can be reviewed as a source.
This argument highlights the difficulty under CEQA of reviewing and accounting
for physical impacts that result from climate change. Evidence in the record indicates
that climate change is one of the likely causes of tree mortality in the state. But climate
change in its nature and global scope is fundamentally different from other types of
cumulative impacts reviewed under CEQA, and CEQA in its language and structure does
not lend itself well to evaluating impacts caused by something other than a physical
project. (Cleveland National Forest I, supra, 3 Cal.5th at p. 512; Kostka & Zischke,
supra, § 20.81.)
The Committee argues that “[e]nvironmental analysis cannot operate under the
assumption that climate change and its impacts are not the result of human activity or a
‘project.’ ” The Legislature agreed with the Committee’s point. It recognized that
greenhouse gas emissions “and the effects” of greenhouse gas emissions were appropriate
subjects for CEQA analysis. At the Legislature’s direction, the Resources Agency
amended the Guidelines to provide for analysis and mitigation of a project’s potential
cumulative impact on global warming by reviewing a project’s emission of greenhouse
gases. (Guidelines, § 15064.4.)
As described above, the EIR quantified the project’s estimated greenhouse gas
emissions in both its construction and operation phases. It determined that greenhouse
gas emissions during construction would be less than significant, but cumulative
operational emissions would be potentially significant and unavoidable. It called for
mitigation. In this manner, the EIR addressed the project’s contribution to climate
change’s adverse impact on forest resources. This is where CEQA required that analysis
to occur. The County did not abuse its discretion by not also including that analysis in its
discussion of the project’s impacts on forest resources.
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Other than attacking the efficacy of the proposed mitigation measure for
greenhouse gas emission impacts discussed above, the Committee does not challenge the
sufficiency of the EIR’s analysis of, or its compliance with CEQA in analyzing, the
project’s contribution to climate change. We thus conclude the EIR’s analysis of the
project’s cumulative impacts on forest resources, when considered with the analysis of
the project’s greenhouse gas emissions, complies with CEQA’s procedures and is
supported by substantial evidence.
II
Mitigation of Traffic Impacts to State Route 267
The County found that it did not identify any feasible mitigation measures that
would reduce the project’s significant and unavoidable impact to traffic congestion on
state route 267 except payment of a traffic impact fee that would fund capital
improvements to the highway. The Committee contends substantial evidence does not
support this finding as the County, in violation of CEQA, did not review a number of
suggested transportation demand management measures in the EIR that could feasibly
mitigate the impact by reducing the project’s future occupants’ demand for automobile
use. We agree with the Committee.
A. Background
The EIR determined that the project’s impacts to traffic along state route 267
would be significant. Segments of the highway, including the segment that ran from the
project’s proposed entrance to Kings Beach, were already operating at an unacceptable
level of service during seasonal peak hours, and the project would worsen congestion on
those segments and worsen other segments to unacceptable levels.
To mitigate these impacts, the draft EIR proposed mitigation measure 10-2, which
would require the applicants to pay the County’s traffic impact fee. The impact fee funds
the County’s capital improvement program. The improvement program called for
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making a number of improvements to route 267: widening the road to four lanes from
the Placer County line near Truckee south to Brockway Summit just past the project’s
proposed entrance, making intersection improvements and adding left-turn and
acceleration lanes along the route. It also called for purchasing two transit vehicles and
developing intelligent transportation systems. The improvement program estimated these
improvements would cost approximately $36.8 million. The draft EIR indicated the
project’s fair-share of this cost, payable via the traffic impact fee, would be
$3,685,511.42. These improvements would result in acceptable levels of service on route
267 from the County line to the project’s access roadway.
The capital improvement program, however, did not include widening route 267
from Brockway Summit to state route 28 in Kings Beach. The EIR stated that as a result,
there was no feasible mitigation for the project’s significant impact to that segment of the
highway. For that reason, and because it was not feasible for the project itself to fund the
planned widening of route 267’s other segments and it was unlikely that those
improvements would be constructed before the project was implemented, the EIR
concluded the project’s impacts to route 267 were significant and unavoidable.
The draft EIR also found that the project could significantly impact existing transit
service. The project included constructing a transit shelter along route 267, and the
additional ridership generated by the project could increase demand above the local
transit system’s capacity. To mitigate this potential impact, the EIR proposed mitigation
measures 10-5a and 10-5b. Measure 10-5a required the applicants to establish a new
zone of benefit within an existing County service area or annex the project into a pre-
existing zone of benefit “to provide adequate funding of capital and ongoing operational
transit services/requirements.” The applicants must submit an engineer’s report
supporting the level of assessments necessary to establish the zone of benefit and the
basis for the special benefit appurtenant to the project.
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Measure 10-5b required the commercial and homeowner associations that would
be organized in the development to join the Truckee North Tahoe Transportation
Management Association. A transportation management association exists to improve
the general traffic and transportation conditions in the area and to address situations
associated with traffic congestion and transportation systems. Joining and maintaining
membership will be at a rate based on the engineer’s report to be prepared for measure
10-5a. The draft EIR concluded that implementation of these two measures would offset
the project’s demand for additional transit services and reduce the impact to less than
significant.
Commenters criticized the draft EIR’s mitigation of the project’s traffic impacts.
The commenters generally accused the County of concluding that the impacts to route
267 were significant and unavoidable without considering feasible transportation demand
management measures that could mitigate the impact without necessarily having to widen
the highway. Transportation demand management measures seek to mitigate
transportation impacts as well as greenhouse gas emission impacts by incentivizing
people to use transit or other means of transportation to reduce the demand for
automobile travel and roadway capacity. The commenters requested that the County
consider requiring the developer to implement demand measures separately or as part of a
plan to mitigate the project’s significant and unavoidable traffic on route 267.
TRPA’s comment on the draft EIR is representative. It stated the County could
consider mitigating the project’s increase of vehicle trips into the Tahoe Basin by
allocating more of its revenues from the traffic impact fee to improvements in transit
service to replace vehicle trips, such as acquiring buses, instead of improving route 267’s
level of service by widening it. The County could also consider establishing ongoing
funding streams in amounts necessary to expand transit service to offset increased vehicle
traffic. Equally important was assuring that residents and visitors were informed of and
incentivized to use the expanded transit so that the investment in it resulted in actually
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reducing the number of vehicle trips. Such incentives could include free transit fares, an
origin-based parking charge for visitors who bring their cars, or destination-based parking
charges within the Basin.
Other commenters proposed similar measures to mitigate the traffic impact on
route 267, such as providing free or subsidized transit or transit passes for project
residents, guests, and employees; providing a shuttle service to key destinations in the
region including the North Shore and the Amtrak station in Truckee; installing signage
that encouraged transit use; funding increased transit and transit stop upgrades;
implementing marketing and information campaigns regarding transit options; imposing
parking charges; and providing a covered bicycle area near commercial establishments.
Some of these types of measures were developed by the Placer County Air Pollution
Control District and others to mitigate air pollution impacts addressed in the EIR for the
nearby development at issue in Squaw Valley.
Commenters also criticized transit mitigation measures 10-5a and 10-5b. They
argued that both measures were inadequate as the EIR did not show that the fees to be
paid under them were part of an adopted plan which the County was committed to
enforce. Critiquing the measures individually, commenters argued that measure 10-5a
regarding joining or establishing a zone of benefit to fund transit was inadequate because
it did not describe the benefit zones it proposed or identify the level of assessments
necessary to establish such an entity. It also did not explain how the zone would actually
reduce the project’s impacts on transit.
The commenters argued that measure 10-5b, requiring membership in the
transportation management association, suffered from similar flaws. The draft EIR did
not identify the amount the project would have to contribute to the association or how the
association would ensure that the project’s impacts on public transit would be mitigated.
The County responded to the suggested mitigation measures and comments in the
final EIR. It stated that the specific plan itself included some of the requested
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transportation demand measures. The plan required the homeowners’ association to
provide a community shuttle to transport residents and guests to onsite amenities and to
Northstar. The shuttle could potentially travel to the Tahoe Basin. It also could be
coordinated with other shuttle and transit services in the vicinity. In addition, the project
would develop an extensive network of on-site walking, biking, and hiking trails.
The specific plan also addressed transit. It called for constructing a covered bus
shelter/transit stop to accommodate transit vehicles traveling on state route 267. A plan
policy called for the project to join or partner with local transit organizations and transit
providers to extend service to the project site and encourage the use of regional transit
services.
The final EIR stated that the project’s payment of the traffic impact fee under
mitigation measure 10-2, creation of and funding from the benefit district assessment
under measure 10-5a, and its membership in the transportation management association
under measure 10-5b would help fund transit and transit improvements such as some of
those the commenters had sought. The traffic impact fee, in addition to funding
improvements to route 267, would help fund the purchase of two transit vehicles, transit
improvements in Tahoe City, transit shelters at various locations, compressed natural gas
upgrades for the regional transit provider, Tahoe Area Regional Transit (TART), and bike
lanes along route 28 in Kings Beach.
Measure 10-5a would fund increased transit service along the route 267 corridor.
The EIR stated the specific level of transit improvements that the new benefit zone would
fund had yet to be defined, but at a minimum, it would likely increase peak commute-
period transit service along route 267 between Kings Beach and Truckee, which is when
the highest passenger loads occur. The County was in the process of updating the TART
Systems Plan for the regional transit provider. This plan would result in more
comprehensive service in the resort areas between Truckee and the North Shore,
including year-round nighttime service. The new benefit zone would provide funding for
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these enhanced services. Before the zone would be implemented, the County would
define the specific transit operations and capital improvements to be funded to ensure
adequate transit capacity is provided. The engineer’s report for the zone would include
the overall demand for transit generated by the project’s subsequent phases and what
elements of the development would drive that demand.
We note that the County approved the updated TART Systems Plan in April 2016,
shortly before it released the final EIR. Under the updated plan, TART would increase
service frequency (including on route 267), increase night hours, and implement free
service for all riders. The plan estimates the costs of these improvements. Funding
sources include expanded County service area zones of benefit in new development and
contributions from developers.
Back to the final EIR, as for mitigation measure 10-5b, the County stated that
requiring membership in the transportation management association was a standard
mitigation measure for large development projects in Eastern Placer County. It was
intended to ensure ongoing participation by major economic institutions in regional
transit and transportation discussions and to improve transit service. By joining, the
project would provide funding that would be used toward enhanced transit and other
forms of multimodal transportation through the association’s work in fostering
partnerships, resources, and advocacy and in promoting transit and traffic solutions. The
project’s membership would no longer be based on the engineering report for the transit
zone of benefit. Instead, it would be defined by the transportation management
association and be tied to improvements to be funded.
The final EIR acknowledged that commenters had suggested mitigation measures
such as transit subsidies or free transit for project residents, transit stop upgrades, shuttle
service to key destinations in the region, recruiting transit riders through marketing, and
covered bicycle parking at commercial destinations. But it stated that with the updated
TART Systems Plan and implementation of mitigation measures 10-2, 10-5a, and 10-5b,
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“no additional measures are necessary.” The project already included a shuttle service
that could be coordinated with other transit services. Recruitment of transit riders would
likely occur, or more effectively occur, through efforts already in place by the
transportation management association to publicize transit opportunities. Providing
covered bicycle parking at the site’s commercial uses would not mitigate the project’s
external impacts.
Regarding the other suggested measures modified from the Squaw Valley EIR, the
County stated they were not transferable to the project because of the different natures of
the two projects. The current project would result in residential units for sale and
neighborhood commercial uses. It was not a resort that would be controlled by the
project applicant following construction and that would allow for implementing measures
such as discounted transportation or transit passes.
In addition to responding to comments, the County in the final EIR revised its
analysis of the project’s impact on transit. In the draft EIR, the County had determined
that ridership on the current bus service along route 267 was at capacity during peak
winter hours and that the project with its new bus stop would cause existing capacity to
be exceeded. In the final EIR, the County determined that bus ridership on route 267 was
actually below capacity during the winter peak hours and that the project would not cause
existing capacity to be exceeded. Under this revised analysis, the potential impact to
transit was less than significant. Nonetheless, the final EIR continued to propose
mitigation measures 10-5a and 10-5b. Complying with them would ensure the impact on
transit remained less than significant.
After the final EIR was released, the Committee recommended that the County
mitigate the project’s transportation and greenhouse gas emission impacts by requiring
the project to prepare a transportation demand management program to reduce expected
peak motor vehicle trips. It also recommended that the County require the project to
contribute funding to bike facility projects in order to increase bicycle usage and offset
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the project’s impacts. Responding, the County directed the Committee to see its previous
responses to similar comments in the final EIR.
When it approved the project, the board of supervisors imposed mitigation
measure 10-2 to mitigate the project’s traffic impact to route 267, and it found that no
additional feasible mitigation measures were identified to address that significant and
unavoidable impact. The board also imposed mitigation measures 10-5a and 10-5b even
though CEQA does not require a lead agency to mitigate impacts which the agency
determined were less than significant.
B. Discussion
The Committee contends insufficient evidence supports the County’s finding that
no additional feasible mitigation measures were available to mitigate impacts to route
267. The traffic demand management measures it and others proposed, including
improvements to regional cycling infrastructure, were facially feasible mitigation
measures, and the County violated CEQA by not discussing them in the EIR. Instead of
discussing the requested measures in the final EIR, the County merely repeated project
policies and the mitigation measures the draft EIR set forth and declared that no
additional mitigation measures were needed. The Committee claims that these responses
did not take the place of discussing other feasible mitigation measures. Policies that are
part of the plan under review are not mitigation measures.
The Committee also claims that mitigation measures 10-5a and 10-5b were not
valid mitigation measures because they were not part of an adopted and enforceable plan,
they lacked sufficient detail, and they were rendered inoperative when the County
ultimately concluded the project would not cause a significant impact on transit.
The County asks us to review the adequacy of the mitigation measures that were
adopted. It contends the features already incorporated into the plan and the payments
required under mitigation measures 10-2, 10-5a and 10-5b show that the County required
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the project to do “more than its fair share” to support transit. The County did not ignore
the proposed mitigation measures; it responded to the commenters by describing the
transit mitigation already incorporated into the project.
The County misstates the issue before us. The issue is not whether the County
required the project to do more than its fair share to support transit or that no additional
mitigation measures were necessary. The issue is whether substantial evidence supports
the EIR’s conclusion and the County’s finding that other than payment of the traffic
impact fee, no feasible mitigation measures were identified to reduce the project’s
significant impacts on route 267 traffic. (See Citizens for Open Gov. v. City of Lodi
(2012) 205 Cal.App.4th 296, 323 [finding of no feasible mitigation measures reviewed
for substantial evidence].) We conclude the finding is not supported by substantial
evidence.
Under CEQA, “public agencies should not approve projects as proposed if there
are feasible alternatives or feasible mitigation measures available which would
substantially lessen the significant environmental effects of such projects . . . .”
(§ 21002.) CEQA procedures “are intended to assist public agencies in systematically
identifying both the significant effects of proposed projects and the feasible alternatives
or feasible mitigation measures which will avoid or substantially lessen such significant
effects.” (Ibid.)
CEQA requires an EIR to include a detailed statement of feasible mitigation
measures proposed to minimize significant effects on the environment. (§ 21100;
Guidelines, § 15126.4, subd. (a)(1).) A description of feasible mitigation measures is part
of “the core” of an EIR. (Citizens of Goleta Valley v. Board of Supervisors, supra,
52 Cal.3d. at p. 564.)
An EIR’s discussion must “identify mitigation measures for each significant
environmental effect identified in the EIR.” (Guidelines, § 15126.4, subd. (a)(1)(A).)
The discussion must distinguish between measures proposed by project proponents to be
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included in the project and measures proposed by the lead agency or other persons.
(Ibid.)
Where several mitigation measures are available to mitigate an impact, “each
should be discussed and the basis for selecting a particular measure should be identified.”
(Guidelines, § 15126.4, subd. (a)(1)(B), italics added.) “[A]n EIR need not analyze
‘ “ ‘every imaginable alternative or mitigation measure; its concern is with feasible
means of reducing environmental effects.’ ” ’ (Concerned Citizens of South Central L.A.
v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 841, [original italics].)
Under the CEQA statute and guidelines a mitigation measure is ‘feasible’ if it is ‘capable
of being accomplished in a successful manner within a reasonable period of time, taking
into account economic, environmental, social, and technological factors.’ (§ 21061.1;
and see Guidelines, § 15364.)
“In keeping with the statute and guidelines, an adequate EIR must respond to
specific suggestions for mitigating a significant environmental impact unless the
suggested mitigation is facially infeasible. (San Francisco Ecology Center v. City and
County of San Francisco (1975) 48 Cal.App.3d 584, 596; Concerned Citizens of South
Central L.A. v. Los Angeles Unified School Dist., supra, 24 Cal.App.4th at pp. 841-842.)
While the response need not be exhaustive, it should evince good faith and a reasoned
analysis. (San Francisco Ecology Center [v. City and County of San Francisco (1975)]
48 Cal.App.3d [584,] 596; Guidelines § 15088, subd. (b).)” (Los Angeles Unified School
Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1029.) “Conclusory statements
unsupported by factual information will not suffice.” (Guidelines, § 15088, subd. (c).)
This is not to imply that the County must find the suggested measures are feasible
measures. “This is not our call. Our role is merely to determine whether the EIR
provides the [County] sufficient information on which to base its judgment whether to
approve the plan.” (Los Angeles Unified School Dist. v. City of Los Angeles, supra,
58 Cal.App.4th at p. 1030.)
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The commenters asked for the EIR to discuss whether the project could fund
expanding and incentivizing use of the transit system not only to address the project’s
impact on that system, but also to address the project’s impact on route 267. They asked
for the EIR to discuss whether the increased vehicle traffic on route 267 could be
mitigated not just by expanding part of the highway, but instead by expanding and
incentivizing transit services to reduce the amount of traffic the project will generate on
route 267. Because the project would significantly impact route 267, CEQA required the
EIR to discuss the commenters’ suggestions in good faith and with a reasoned analysis if
they were facially feasible, a point the County does not contest.
Although the final EIR addressed a number of the proposed individual
transportation demand measures, it did so in the context of mitigating the project’s
demand for transit. Even the funding to be provided under the new zone of benefit
required by mitigation measure 10-5a for transit measures, which the County states will
provide some of the demand measures the commenters seek, will be based on the
project’s demand for transit. But the suggested mitigation was to look beyond the
project’s impact on the existing transit system and consider whether expanding the transit
system and adopting transportation demand management measures in lieu of widening
route 267 could reduce the project’s impact on the highway. For example, TRPA
suggested the County consider reallocating the traffic impact fee’s proceeds so that more
went to improving transit service and less went to widening route 267. Another
commenter asked the County to consider a package of transportation demand
management measures to mitigate traffic impacts on route 267. The EIR did not address
the suggested approach.
This approach may be somewhat unique, but in City of Hayward v. Trustees of
California State University (2015) 242 Cal.App.4th 833, the court of appeal concluded
that a university’s commitment to adopt a transportation demand management plan was a
feasible measure to mitigate the impact that the university’s planned expansion would
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have on traffic and parking where the campus lacked convenient access. (Id. at pp. 851-
855.) In other words, instead of building more roads to accommodate the increased
traffic the project would generate, the university sought to mitigate its traffic impacts
through a transportation demand management plan.
The court of appeal held the mitigation measure satisfied CEQA. Substantial
evidence indicated the management measures would increase transit ridership and reduce
individual vehicle use and parking, and the university had committed to develop and
implement the plan. (City of Hayward v. Trustees of California State University, supra,
242 Cal.App.4th at pp. 854-855.) Its deferral of selecting any particular demand measure
did not violate CEQA where the plan set out quantitative criteria and specific deadlines
for completion of its component parts. (Id. at p. 855.)
In its brief, the County states it “neither rejected nor ignored transit mitigation.
Quite the contrary, the County required the Project to do more than its fair share to
support transit.” In a sense, the County did just that. It imposed measures to mitigate the
project’s demand on transit even though it found the project would not significantly
impact transit. The County stated it imposed the measures to ensure the project’s impact
on transit remained less than significant. The applicants have not challenged the
County’s action. But again, the EIR considered the measures in response to the project’s
impact on transit, not as an alternative means to mitigate the project’s impact on route
267 traffic.
The County claims the Committee dismisses the transit measures the project will
implement “and seemingly believes that the Project must solve the region’s transit
shortfall.” Of course, a mitigation measure cannot violate state or federal constitutional
limitations. “Under Nollan [v. California Coastal Com. (1987) 483 U.S. 825 [97 L.Ed.2d
677]] and Dolan [v. City of Tigard (1994) 512 U.S. 374 [129 L.Ed.2d 304]] the
government may choose whether and how a permit applicant is required to mitigate the
impacts of a proposed development, but it may not leverage its legitimate interest in
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mitigation to pursue governmental ends that lack an essential nexus and rough
proportionality to those impacts.” (Koontz v. St. Johns River Water Management Dist.
(2013) 570 U.S. 595, 606 [186 L.Ed.2d 697].) Review of the suggested mitigation
measures must not ignore constitutional limitations. TRPA’s comment perhaps implicitly
recognized the possible application of these limitations when it asked for the County to
consider increasing the traffic impact fee’s contribution to transportation demand
management measures in exchange for reducing the fee’s contribution to widening route
267.
The commenters, however, had nonetheless requested that the EIR discuss
transportation demand management plans and measures to reduce traffic impacts in
addition to reducing impacts on the transit system. The County does not claim that the
suggested measures were infeasible, but the EIR did not consider them as a means to
mitigate impacts on route 267. As a result, substantial evidence does not support the
County’s finding that no additional feasible mitigation measures were identified to
mitigate the project’s impact on route 267. The omission of this required analysis is
prejudicial error.
Because we conclude the EIR’s discussion of mitigation measures for traffic
impacts did not comply with CEQA, we do not address the Committee’s other arguments
which make the same point.
III
Effects of Paying the Traffic Impact Fee
If a mitigation measure will cause one or more significant environmental effects in
addition to those that the proposed project will cause, CEQA requires an EIR to discuss
the measure’s effects but in less detail than the project’s significant effects. (Guidelines,
§ 15126.4, subd. (a)(1)(D).) The Committee claims the EIR violated CEQA by not
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discussing the environmental impacts of widening state route 267 which the project’s
payment of the traffic impact fee would help fund. We find no prejudicial error.
The final EIR stated the County had approved the widening as a matter of policy
when it approved the Martis Valley Community Plan, and the community plan EIR had
addressed the impacts of widening the highway at a program level. The final EIR stated
that in the future, if Caltrans moves forward with a project to widen the highway, “the
project would be subject to a separate environmental study to analyze and disclose the
impacts of widening the highway.”
The Martis Valley Community Plan, adopted in 2003, recognized that the traffic it
projected at full buildout would require route 267 to be widened to four lanes. The plan’s
EIR required the County to establish the capital improvement program to fund a list of
road and intersection improvements, including widening route 267. The plan’s EIR noted
that since these improvements had yet to be designed, it was not possible to determine the
extent of their environmental effects. However, the improvements could result in
temporary surface water quality, air quality, and noise impacts associated with
construction; operational noise and air quality impacts; biological resource impacts
associated with construction; and cultural resource impacts.
No evidence in the record indicates that circumstances had changed since the
County released the community plan EIR. As of 2012, Caltrans continued to plan for
widening route 267 to four lanes, but nothing indicates it had proceeded with designing
and implementing the improvement. The widening project will undergo CEQA review
when it is designed, but until then, the EIR before us could add nothing more about the
widening’s impacts than what had already been said. The EIR’s reference to the
community plan EIR was thus sufficient to meet the requirement of discussing the
environmental impacts of the mitigation measure.
The Committee contends the analysis did not comply with CEQA because, where
an EIR tiers off another EIR, CEQA requires the later EIR to state where a copy of the
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prior EIR may be examined and to state that the tiering concept is being used.
(Guidelines, § 15152, subd. (g).) Incorporation by reference requires similar procedures.
(Guidelines, § 15150.) We agree that the EIR did not comply with these procedures but
conclude that any error was not prejudicial. The widening project has been planned for
many years, the public and decisionmakers have known of its likely environmental
impacts to the extent they could be addressed during that time, no circumstances have
changed since the County reviewed the widening’s environmental impacts, the EIR
referenced the prior environmental review, that information was publicly available, and
the widening will undergo full CEQA review once Caltrans proceeds with the project.
“[I]n reviewing an EIR’s discussion, we do not require technical perfection or
scientific certainty: ‘ “ ‘[T]he courts have looked not for an exhaustive analysis but for
adequacy, completeness and a good-faith effort at full disclosure.’ ” ’ [Citations.]”
(County of Fresno, supra, 6 Cal.5th at p. 515.) “Insubstantial or merely technical
omissions are not grounds for relief.” (Neighbors for Smart Rail v. Exposition Metro
Line Construction Authority, supra, 57 Cal.4th at p. 463.)
IV
Energy Consumption
The Committee contends the EIR did not comply with CEQA because, in the
EIR’s analysis of the project’s energy consumption, it “did not identify or discuss impacts
on renewable energy content as an element of the energy conservation analysis.” Despite
being requested to address renewable energy, the County in the final EIR “did not discuss
either decreasing reliance on fossil fuels or increasing reliance on renewable energy
resources.”
While the phrase “impacts on renewable energy content” is confusing, the
Committee is arguing that an EIR’s analysis of a project’s impacts on energy resources
must include a discussion of whether the project could increase its reliance on renewable
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energy sources to meet its energy demand as part of determining whether the project’s
energy impacts are significant.
A panel of this court agreed with the Committee’s contention in California Clean
Energy Com. v. City of Woodland (2014) 225 Cal.App.4th 173, 209, 213 (City of
Woodland), and we agree with it again here.
A. Background
In the draft EIR, the County established a standard for determining the
significance of the project’s impact on energy consumption. It stated that the project’s
impact would be potentially significant if it would result in inefficient and wasteful
consumption of energy during construction or operations or require new or expanded
energy facilities that could cause significant environmental effects. Applying this
standard, the County concluded the project’s energy impacts would be less than
significant.
The project would result in increased demand for electricity and natural gas, but
the electric and gas utilities indicated they were able to adequately serve the project at
buildout. Liberty Utilities, the electricity provider, secures approximately 20 percent of
its energy from renewable sources.
The energy to be used for construction would be nonrecoverable, but its
consumption would be typical of that associated with residential and commercial
construction projects in a mountainous area. Nonrenewable energy would not be
consumed in a wasteful, inefficient, or unnecessary manner when compared to other
construction sites in the region.
Operation of the project would be typical of residential and commercial uses. The
project would be required to meet state building efficiency standards codified in Title 24
of the Code of Regulations. These regulations apply to new construction of residential
and commercial buildings and regulate energy consumed for heating, cooling, ventilation,
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water heating, and lighting. This would result in the project’s residences requiring
approximately 25 percent less energy, and nonresidential buildings requiring 30 percent
less energy, than buildings constructed before 2008.
Energy-saving features would also be incorporated into the development under the
plan’s polices, development standards, and design guidelines. These would encourage
development to exceed Title 24 energy efficiency requirements by 15 percent and to
design and site buildings to reduce building energy requirements, including a reduction in
energy demand associated with mechanical heating, cooling, and ventilation. Also, the
plan’s transportation management component would reduce potential vehicle trips by
residents.
The draft EIR concluded that taken together, these policies would reduce per-
capita energy use and would encourage use of renewable energy sources and alternatives
to travel by personal vehicle. By implementing them, the project would not result in an
inefficient or wasteful consumption of energy, and the impact would be less than
significant.
During the comment period, one commenter (NTPA) asked the County to evaluate
options for putting the entire project on 100 percent renewable electrical energy or some
lesser percentage as may be feasible. It also asked the County to evaluate strategies for
reducing reliance on fossil fuels, increasing reliance on renewable resources, reducing
peak loads, and reducing the impacts of relying on remote generation facilities.
The County responded in the final EIR that the project was found not to result in
inefficient or wasteful consumption of energy. The impact was thus determined to be
less than significant, and no additional measures were required. Plan policies would
encourage use of renewable energy sources and alternatives to travel by personal vehicle.
After the final EIR was released, the Committee and NTPA submitted additional
comments and a study which the Committee claims indicates that requiring rooftop solar
would be an economic investment for all dwellings in the project. The Committee also
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asserts the study demonstrated that the project would have a potentially significant
adverse impact on energy conservation “because it relies on using fossil fuels when
renewable energy is economic.”
B. Discussion
CEQA requires an EIR to analyze a project’s energy consumption. (§ 21100,
subd. (b)(3); Guidelines, § 15126.4, subd. (a)(1), Appendix F.) “If analysis of the
project’s energy use reveals that the project may result in significant environmental
effects due to wasteful, inefficient, or unnecessary use of energy, or wasteful use of
energy resources, the EIR shall mitigate that energy use.” (Guidelines, § 15126.2, subd.
(b).)
An EIR’s analysis of a project’s energy use “should include the project’s energy
use for all project phases and components, including transportation-related energy, during
construction and operation. In addition to building code compliance, other relevant
considerations may include, among others, the project’s size, location, orientation,
equipment use and any renewable energy features that could be incorporated into the
project. . . . This analysis is subject to the rule of reason and shall focus on energy use
that is caused by the project.” (Guidelines, § 15126.2, subd. (b), italics added.)
Appendix F to the Guidelines provides “[g]uidance on information that may be
included” in an analysis of a project’s energy use. (Guidelines, § 15126.2, subd. (b).) It
states, “The goal of conserving energy implies the wise and efficient use of energy. The
means of achieving this goal include: [¶] (1) decreasing overall per capita energy
consumption, [¶] (2) decreasing reliance on fossil fuels such as coal, natural gas and oil,
and [¶] (3) increasing reliance on renewable energy sources.” (Guidelines, Appendix F,
I.)
“Potentially significant energy implications of a project shall be considered in an
EIR to the extent relevant and applicable to the project.” (Guidelines, Appendix F, II.)
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Appendix F lists possible energy impacts and mitigation measures for the lead agency to
consider. Possible energy impacts could arise from such things as the project’s energy
requirements and its energy use efficiencies; the project’s effects on local and regional
energy supplies, requirements for additional capacity, and peak and base period demands
for electricity and other forms of energy; the degree to which the project complies with
existing energy standards; the project’s effects on energy resources; and the project’s
projected transportation energy use requirements and its overall use of efficient
transportation alternatives. (Guidelines, Appendix F, II. C.)
If the project’s energy impacts are significant, Appendix F suggests types of
mitigation measures which a lead agency could consider. They include, among others,
“measures to reduce wasteful, inefficient and unnecessary consumption of energy during
construction, operation, maintenance and/or removal[;]” and, of relevance here,
“[a]lternate fuels (particularly renewable ones) or energy systems.” (Guidelines,
Appendix F, II. D.)
Guidelines section 15126.2, subdivision (b), and Appendix F to the Guidelines
thus indicate an EIR should address the project’s potential to increase its use of
renewable energy sources for at least two purposes. First, when the EIR analyzes the
project’s energy use to determine if it creates significant effects, it should discuss whether
any renewable energy features could be incorporated into the project. (Guidelines,
§ 15126.2, subdivision (b).) The EIR’s determination of whether the potential impact is
significant is to be based on this discussion. Second, if the EIR concludes the project’s
impact on energy resources is significant, it should consider mitigating the impact by
requiring uses of alternate fuels, particularly renewable ones, if applicable. (Guidelines,
Appendix F., II. D. 4.)
In City of Woodland, this court determined that an EIR’s discussion of a large
retail project’s impacts on energy resources did not comply with CEQA where it omitted
an analysis of renewable energy options that might have been available or appropriate for
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the project. (City of Woodland, supra, 225 Cal.App.4th at p. 213.) We reached this
conclusion even though the EIR had determined the project’s impacts on energy
resources would be less than significant. (Id. at p. 208.)
The County claims City of Woodland does not apply here. It claims in that case,
we concluded the city had a “further” obligation to investigate renewable energy options
because the project’s energy use was “potentially significant.” Not quite. We concluded
that a discussion of renewable energy options was “a potentially significant
environmental consideration” under the Guidelines, the omission of which violated
CEQA. (City of Woodland, supra, 225 Cal.App.4th at p. 213.)
Because the EIR did not address whether any renewable energy features could be
incorporated into the project as part of determining whether the project’s impacts on
energy resources were significant, it did not comply with CEQA’s procedural
requirements, a prejudicial error.
DISPOSITION
In C087102, the judgment’s conclusions that the EIR’s analysis of the project’s
impacts on Lake Tahoe’s water quality and that greenhouse gas emission mitigation
measure 12-2 comply with CEQA, and that substantial evidence does not support the
EIR’s analysis of the project’s impact on evacuation plans are reversed. The judgment is
affirmed in all other respects.
In C087117, the judgment’s conclusions that greenhouse gas emission mitigation
measure 12-2 complies with CEQA, that substantial evidence supports the County’s
finding there were no additional feasible mitigation measures to mitigate the project’s
traffic impacts, and that the EIR’s discussion of the project’s energy impacts complied
with CEQA are reversed. The judgment is affirmed in all other respects.
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The matter is remanded for further proceedings. The parties shall bear their own
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
HULL, J.
We concur:
RAYE, P. J.
DUARTE, J.
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