CEQA covers impact of projects on environment, not impact of environment on projects

Manatt News

December 6, 2011

Court Rejects the Need for CEQA Analysis of Sea Level Rise and Invalidates CEQA Guideline

Author: Kristina D. Lawson 

CEQA Does Not Require Analysis of Significant Effects of the Environment on Projects

In an opinion ordered published last Friday, December 2, 2011 (originally filed November 9, 2011), the Second District Court of Appeal held that the City of Los Angeles was not required to discuss the impact of sea level rise as a result of global climate change on a proposed mixed-use development project. (Ballona Wetlands Land Trust, et al. v. City of Los Angeles (2009) ___ Cal.App.4th ___ (Nov. 9, 2011, Case No. B231965).) The court restated its prior conclusion that "the purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project." (See City of Long Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 905.)  

The court also upheld the City's determination that the project site would not be subject to inundation as a result of sea level rise, finding substantial evidence in the record to support the City's determination. It should be noted that while not specifically addressed in Ballona Wetlands, projects located in floodplains or areas subject to inundation may remain subject to CEQA's mandate that environmental impacts of projects be identified, analyzed, and mitigated if the project may have an impact on the physical environment, such as by causing a diversion of floodwaters due to new construction.

The court joined the Fourth District Court of Appeal in declaring Section 15126.2 and portions of the Appendix G checklist unauthorized and therefore invalid. On June 30, 2011, the Fourth District similarly rejected a challenge related to general plan and zoning amendments to allow more intensive residential development, holding that the impact of noxious odors on future residents of the development was not a potentially significant environmental impact of the development project. (South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604, 1614-1618.)   Both District Courts of Appeal affirmed agreement with the more than fifteen-year-old decision in Baird v. County of Contra Costa (1995) 32 Cal.App.4th 1464.

It is anticipated that one or more of petitioners in the case will petition the California Supreme Court for review. As the scope of environmental review and analysis under the California Environmental Quality Act ("CEQA"; Pub. Resources Code, §§ 21000 et seq.) seems to be ever-expanding, CEQA practitioners across disciplines have long sought judicial clarification on the issue presented in Ballona Wetlands to inform their preparation of EIRs. While review by the Supreme Court is a matter of discretion and therefore not guaranteed, this case does present an opportunity for the Court to resolve an important question of law.

Case Summary
The Ballona Wetlands Land Trust, Anthony Morales, Surfrider Foundation, and Ballona Ecosystem Education Project ("BEEP") challenged the City of Los Angeles' certification of a revised EIR for the Playa Vista phase two project. The project, which is located south of Marina del Rey within the City of Los Angeles, is known as the Village. Phase one of the project is home to affordable and luxury housing, office and commercial space, and open space and recreational amenities.

The City first completed and certified a final EIR for the phase two project in April 2004. Various parties, including Ballona Wetlands, challenged the City's certification of the original EIR and the project approvals. After several years of litigation, the City was ordered to vacate its certification of the EIR and project approvals, and to revise the EIR to remedy three identified deficiencies. The City complied with the order and revised and supplemented the EIR. The draft EIR circulated for public comment in January 2009 included a new section discussing the impacts of global climate change, and revised sections relating to land use, archaeological resources, and wastewater. The revised EIR was certified and the project approved in the spring of 2010, and the City filed a return to the writ of mandate stating that it had complied with the court's 2008 order. Ballona Wetlands filed objections to the return, and BEEP filed a new petition for writ of mandate challenging the certification of the revised EIR and project approvals.  The cases were consolidated at the trial court level.

Ballona Wetlands and BEEP specifically challenged the adequacy of the EIR's project description, analysis of archaeological resources and sea level rise resulting from global climate change, and the finding of no significant impact on land use consistency. They also challenged an award of costs to the City and the real party in interest, Playa Capital Company, LLC. 

The revised EIR included a new section on global climate change that addressed the project's contribution to the cumulative impact of global climate change through its greenhouse gas emissions. The revised EIR also noted that global warming could result in a rise in sea level and the inundation of coastal areas. Ballona Wetlands argued, first in comment letters and then in litigation, that the EIR was inadequate because it failed to address the impacts of sea level rise resulting from global climate change. 

The court addressed the proper scope of an EIR's environmental impact analysis, finding that Section 15126.2(a) of the CEQA Guidelines mandates environmental review in a manner inconsistent with CEQA's legislative purpose and not required by CEQA. Section 15126.2(a) provides, in pertinent part:

The EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected.  For example, an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision.  The subdivision would have the effect of attracting people to the location and exposing them to hazards found there. Similarly, the EIR should evaluate any potentially significant impacts of locating development in other areas susceptible to hazardous conditions (e.g., floodplains, coastlines, wildfire risk areas) as identified in authoritative hazard maps, risk assessments or in land use plans addressing such hazards areas.

The court found Section 15126.2's requirement to identify the effects on the project and its users of locating the project in a particular environmental setting inconsistent with and unauthorized under CEQA. Guidelines provisions that are unauthorized by CEQA are invalid.  

The court also rejected certain questions included in the CEQA Guidelines Appendix G checklist that concern the exposure of people or structures to environmental hazards because those questions could be construed to seek information about the effects on users of the project and structures in the project of preexisting environmental hazards.

On the substantive climate change issues that the court determined were properly within the scope of CEQA's mandated environmental review, the court concluded that the EIR's discussion of climate change impacts, including impacts of the project on the surrounding area, was adequate.

With respect to the EIR's analysis of archaeological resources, the court determined that the revised EIR adequately discussed preservation in place as the preferred manner to mitigate impacts on historic archaeological resources. (See CEQA Guidelines, § 15126.4(b)(3).) The court rejected petitioners' land use consistency arguments on the grounds that the claims were barred by res judicata because they could have been asserted before the entry of judgment in the prior proceeding and the material facts have not changed.

Lastly, the court confirmed that the City and real party in interest were prevailing parties in the 2010 proceedings and judgment, and were entitled to recover their costs. The court rejected Ballona Wetlands and BEEP's claims that they were prevailing parties because they successfully petitioned for a writ of mandate.

Thawing permafrost vents gases to worsen warming

AP
November 30, 2011

By SETH BORENSTEIN | AP – Wed, Nov 30, 2011

  

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  This handout photo, taken in 2009, provided by University of Alaska, Fairbanks, shows …

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  This undated handout photo provided by the University of Florida, shows the Noatak …

WASHINGTON (AP) — Massive amounts of greenhouse gases trapped below thawing permafrost will likely seep into the air over the next several decades, accelerating and amplifying global warming, scientists warn.

Those heat-trapping gases under the frozen Arctic ground may be a bigger factor in global warming than the cutting down of forests, and a scenario that climate scientists hadn't quite accounted for, according to a group of permafrost experts. The gases won't contribute as much as pollution from power plants, cars, trucks and planes, though.

The permafrost scientists predict that over the next three decades a total of about 45 billion metric tons of carbon from methane and carbon dioxide will seep into the atmosphere when permafrost thaws during summers. That's about the same amount of heat-trapping gas the world spews during five years of burning coal, gas and other fossil fuels

And the picture is even more alarming for the end of the century. The scientists calculate that about than 300 billion metric tons of carbon will belch from the thawing Earth from now until 2100.

Adding in that gas means that warming would happen "20 to 30 percent faster than from fossil fuel emissions alone," said Edward Schuur of the University of Florida. "You are significantly speeding things up by releasing this carbon."

Usually the first few to several inches of permafrost thaw in the summer, but scientists are now looking at up to 10 feet of soft unfrozen ground because of warmer temperatures, he said. The gases come from decaying plants that have been stuck below frozen ground for millennia.

Schuur and 40 other scientists in the Permafrost Carbon Research Network met this summer and jointly wrote up their findings, which were published in the journal Nature on Wednesday.

"The survey provides an important warning that global climate warming is likely to be worse than expected," said Jay Zwally, a NASA polar scientist who wasn't part of the study. "Arctic permafrost has been like a wild card."

When the Nobel Prize-winning panel of climate scientists issued its last full report in 2007, it didn't even factor in trapped methane and carbon dioxide from beneath the permafrost. Diplomats are meeting this week in South Africa to find ways of curbing human-made climate change.

Schuur and others said increasing amounts of greenhouse gas are seeping out of permafrost each year. Some is methane, which is 25 times stronger than carbon dioxide in trapping heat.

In a recent video, University of Alaska Fairbanks professor Katey Walter Anthony, a study co-author, is shown setting leaking methane gas on fire with flames shooting far above her head.

"Places like that are all around," Anthony said in a phone interview. "We're tapping into old carbon that has been locked up in the ground for 30,000 to 40,000 years."

That triggers what Anthony and other scientists call a feedback cycle. The world warms, mostly because of human-made greenhouse gases. That thaws permafrost, releasing more natural greenhouse gas, augmenting the warming.

There are lots of unknowns and a large margin of error because this is a relatively new issue with limited data available, the scientists acknowledge.

"It's very much a seat-of-the-pants expert assessment," said Stanford University's Chris Field, who wasn't involved in the new report.

The World Meteorological Organization this week said the worst of the warming in 2011 was in the northern areas — where there is permafrost — and especially Russia. Since 1970, the Arctic has warmed at a rate twice as fast as the rest of the globe.

The thawing permafrost also causes trees to lean — scientists call them "drunken trees" — and roads to buckle. Study co-author F. Stuart Chapin III said when he first moved to Fairbanks the road from his house to the University of Alaska had to be resurfaced once a decade.

"Now it gets resurfaced every year due to thawing permafrost," Chapin said.

More on Coke’s Role in a Shelved Bottle Ban

Green
December 1, 2011

By FELICITY BARRINGER

Jon Jarvis, the director of the National Park Service, has said that its decision to scuttle a planned ban on small plastic water bottles at Grand Canyon National Park had nothing to do with opposition from the Coca-Cola Company.

Associated Press

But a November 2010 e-mail released on Thursday in response to a Freedom of Information Act request tells a different story.

Mr. Jarvis cited only one concern, Coca-Cola's contributions to the National Park Foundation, in discussing the ban with a regional manager of the Park Service. "While I applaud the intent" of the ban, he wrote in the e-mail, "there are going to be consequences, since Coke is a major sponsor of our recycling efforts."

"Let's talk about this" before the park "pulls the plug," he added.

Last month Mr. Jarvis said in a statement that "my decision to hold off the ban was not influenced by Coke but rather the service-wide implications to our concessions contracts, and frankly the concern for public safety in a desert park."

Coca-Cola has donated more than $13 million to parks around the country, much of it through the National Park Foundation, with which it is working on a recycling program at the National Mall.

Neil Mulholland, president of the Park Foundation, had told Mr. Jarvis of Coca-Cola's objections to the ban, saying in a November e-mail that the company had strongly negative reactions. The e-mails were released in response to a Freedom of Information Act request by Public Employees for Environmental Responsibility, a Washington-based environmental organization that first called attention to the issue.

The latest documents also raise the possibility that Mr. Jarvis was ready to prevent the bottle ban from going forward at parks besides Utah's Zion National Park, which pioneered the idea of such a ban three years ago and won a park service award for doing so.

An e-mail in six months ago from Jo Pendry, who was serving as the national parks headquarters official responsible for park concessions, said that an aide to Mr. Jarvis told her that "the director's view is NOT to ban the sale of bottled water but to go the choice route."

It was not immediately clear if "the choice route" meant that individual parks could opt for a ban or that parks would be instructed to give visitors a choice between bottled water and reusable water bottles that could be refilled at filling stations provided by concessionaires.

David Barna, a spokesman for the park service, said that Mr. Jarvis has not made a decision on a national bottled water policy. "The national concessions office has been working on an option package and Director Jarvis has it for review," he said. "We do not know when a decision will be made."

"N.P.S. met with the industry last January and the shareholders/concessioners in the spring," he wrote in an e-mail in response to questions. "We have 630 concessioners in the 397 parks."

He added that Mr. Jarvis might seek more information or reach a decision. "It does not necessarily mean a one size fits all for all parks," he said. "It may be a series of options that allow for transition periods so the public knows what to expect."

A draft policy document obtained in response to the Freedom of Information Act cautions park managers to "consider other factors prior to making a decision to reduce of eliminate the sale of water or other beverages in disposable plastic containers."

"Some visitors have come to rely on the availability of refrigerated bottled water for sale in our parks," it said.

Carbon Emissions Show Biggest Jump Ever Recorded

New York Times
December 4, 2011

By JUSTIN GILLIS

Emissions rose 5.9 percent in 2010, according to an analysis released Sunday by the Global Carbon Project, an international collaboration of scientists tracking the numbers. Scientists with the group said the increase, a half-billion extra tons of carbon pumped into the air, was almost certainly the largest absolute jump in any year since the Industrial Revolution, and the largest percentage increase since 2003.

The increase solidified a trend of ever-rising emissions that scientists fear will make it difficult, if not impossible, to forestall severe climate change in coming decades.

The researchers said the high growth rate reflected a bounce-back from the 1.4 percent drop in emissions in 2009, the year the recession had its biggest impact.

They do not expect the extraordinary growth to persist, but do expect emissions to return to something closer to the 3 percent yearly growth of the last decade, still a worrisome figure that signifies little progress in limiting greenhouse gases. The growth rate in the 1990s was closer to 1 percent yearly.

The combustion of coal represented more than half of the growth in emissions, the report found.

In the United States, emissions dropped by a remarkable 7 percent in the recession year of 2009, but rose by just over 4 percent last year, the new analysis shows. This country is the world's second-largest emitter of greenhouse gases, pumping 1.5 billion tons of carbon into the atmosphere last year.

The United States was surpassed several years ago by China, where emissions grew 10.4 percent in 2010, with that country injecting 2.2 billion tons of carbon into the atmosphere. Carbon dioxide emissions are usually measured by the weight of carbon they contain.

The new figures come as delegates from 191 countries meet in Durban, South Africa, for yet another negotiating session in a global control effort that has been going on, with minimal success, for the better part of two decades.

"Each year that emissions go up, there's another year of negotiations, another year of indecision," said Glen P. Peters, a researcher at the Center for International Climate and Environmental Research in Oslo and a leader of the group that produced the new analysis. "There's no evidence that this trajectory we've been following the last 10 years is going to change."

Scientists say the rapid growth of emissions is warming the Earth, threatening the ecology and putting human welfare at long-term risk. But their increasingly urgent pleas that society find a way to limit emissions have met sharp political resistance in many countries, including the United States, because doing so would entail higher energy costs.

The new figures show a continuation of a trend in which developing countries, including China and India, have surpassed the wealthy countries in their overall greenhouse emissions. In 2010, the combustion of fossil fuels and the production of cement sent more than nine billion tons of carbon into the atmosphere, the new analysis found, with 57 percent of that coming from developing countries.

Emissions per person, though, are still sharply higher in the wealthy countries, and those countries have been emitting greenhouse gases far longer, so they account for the bulk of the excess gases in the atmosphere. The level of carbon dioxide, the main such gas, has increased 40 percent since the Industrial Revolution.

On the surface, the figures of recent years suggest that wealthy countries have made headway in stabilizing their emissions. But Dr. Peters pointed out that in a sense, the rich countries have simply exported some of them.

The fast rise in developing countries has been caused to a large extent by the growth of energy-intensive manufacturing industries that make goods that rich countries import. "All that has changed is the location in which the emissions are being produced," Dr. Peters said.

Many countries, as part of their response to the economic crisis, invested billions in programs designed to make their energy systems greener. While it is possible those will pay long-term dividends, the new numbers suggest they have had little effect so far.

The financial crisis "was an opportunity to move the global economy away from a high-emissions trajectory," said a scientific paper about the new figures, released online on Sunday by the journal Nature Climate Change. "Our results provide no indication of this happening."