No Wetlands Landfill Expansion v. County of Marin CA1/4 ( 2014 )

Filed 12/12/14 No Wetlands Landfill Expansion v. County of Marin CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
NO WETLANDS LANDFILL
EXPANSION et al.,
Plaintiffs and Respondents,
v. A137459
COUNTY OF MARIN et al.,
(Marin County
Defendants and Appellants; Super. Ct. No. CIV 090198)
REDWOOD LANDFILL, INC.,
Real Party in Interest and Appellant.
Three groups petitioned for a writ of mandate under the California Environmental
Quality Act (CEQA)1 challenging the certification of an environmental impact report
(EIR) issued on a proposed expansion of the Redwood Landfill, a facility that handles
most of Marin County’s solid waste. The trial court ruled partly in favor of each side,
and they both appealed. We conclude that the EIR adequately informed the public about
the potential significant environmental effects of the proposed expansion. We therefore
affirm in part and reverse in part and remand to the trial court with directions to enter an
order denying the petition.
1
CEQA is set forth in Public Resources Code section 21000 et sequitur. Further
statutory references are to the Public Resources Code unless otherwise specified.
1
I.
FACTUAL AND PROCEDURAL
BACKGROUND
This is the second time we have been asked to weigh in on the validity of the
certification of the EIR permitting the expansion of the Redwood Landfill. In 2012, we
concluded that the certification was not appealable to the Marin Board of Supervisors,
and we remanded the case to the trial court to resolve any challenges to the adequacy of
the EIR. (No Wetlands Landfill Expansion v. County of Marin (2012) 204 Cal.App.4th
573, 580, 586-587 (No Wetlands I).) In this appeal, we consider the trial court’s rulings
on those challenges.
Much of the factual background was discussed in No Wetlands I, and we briefly
summarize it here. Redwood Landfill, Inc. operates the Redwood Landfill on a 420-acre
site near the Petaluma River. The landfill “began receiving waste in 1958,” and it accepts
most of Marin County’s solid waste. It has a solid-waste-facilities permit issued under
the California Integrated Waste Management Act of 1989 (the permit). (§ 40000 et seq.)
In 1992, appellant Marin County Environmental Health Services (Marin EHS) was
certified to be the local enforcement agency by the California Department of Resources
Recycling and Recovery (CalRecycle). (§§ 40110, 43200 et seq.)
In 1990, Redwood applied to revise the permit to allow it to expand, increase the
amount of waste it could accept, and change its operations, environmental controls, and
facility infrastructure. An EIR was prepared (the 1994 EIR), and a revised permit was
issued in 1995. Although a copy of the 1994 EIR is not included in the administrative
record, it was incorporated by reference and summarized in the EIR giving rise to this
appeal.2
In March 1998, Redwood again applied to revise the permit to allow it to expand
its capacity and change some operations. As the public agency with the principal
responsibility for considering the application, Marin EHS assumed the role of lead
2
On July 24, 2013, we granted Redwood’s request for judicial notice of portions of the
1994 EIR.
2
agency under CEQA. (Guidelines, § 15367.)3 It determined that a new EIR was required
since the 1995 EIR did not address all of the proposed changes. (Guidelines, § 15162,
subd. (a).) This new EIR was prepared, and it recommended a mitigated alternative as
the environmentally superior alternative. The mitigated alternative was adopted. The
Marin County Planning Commission reviewed the EIR and recommended to Marin EHS
that it be certified. In June 2008, Marin EHS certified the EIR.4
In October 2008, Marin EHS deemed the application complete and found it to be
consistent with applicable state standards. (§ 44010.) CalRecycle concurred in this
determination after a public hearing. (§ 44009.) The revised permit was then issued by
Marin EHS in December 2008. (§ 44014, subd. (a).)
The following month, the instant lawsuit, a petition for a writ of mandate, was
filed by three groups to challenge the permit. These groups included No Wetlands
Landfill Expansion (an association of local residents); Sustainability, Parks, Recycling
and Wildlife Legal Defense Fund (an environmental organization); and Northern
California Recycling Association (another environmental organization).5 (Code Civ.
Proc., §§ 1085, 1094.5.) We shall refer collectively to these groups as the landfill
opponents. They sued Marin County, the Marin County Board of Supervisors, and
several Marin County agencies including Marin EHS and one of its officers. We shall
refer collectively to the defendants as the Marin County entities.
3
“Guidelines” refers to the Guidelines for Implementation of CEQA, which are found in
California Code of Regulations, title 14, section 15000 et sequitur. All subsequent
regulatory citations to the Guidelines are to title 14 of the Code of Regulations.
4
Public hearings were held on April 28 and May 5, 2008, regarding the Final EIR. A
new report titled Redwood Landfill Final Environmental Impact Report, Second
Amendment was then prepared to respond to issues raised at those hearings, as well as to
incorporate other changes to the EIR. We sometimes refer generally to “the EIR,” which
encompasses various documents in the administrative record.
5
The current role of the Recycling Association in this litigation is unclear, as the group
does not appear on the notice of appeal and is not listed on respondents’ certificate of
interested entities or persons.
3
In October 2010, the trial court granted the landfill opponents’ petition based on
their argument that they should have been allowed to appeal the EIR’s certification to the
Marin County Board of Supervisors. We reversed. (Wetlands I, supra, 204 Cal.App.4th
at pp. 586-587.) On remand, the trial court ruled in December 2012 that the EIR was
substantively flawed, and it again granted the landfill opponents’ petition. Redwood
timely appealed, and Marin County filed a notice of joinder.6 The landfill opponents
filed a timely cross-appeal.
II.
DISCUSSION
A. An Overview of CEQA’s EIR Requirement.
The Legislature intended CEQA to provide the fullest possible protection to the
environment within the reasonable scope of the statutory scheme. (California Native
Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 978.) The EIR is a
mechanism “ ‘to force informed decision making and to expose the decision making
process to public scrutiny.’ ” (Ibid.) Its purpose is to inform the public and government
officials of the environmental consequences of decisions before they are made. (Citizens
of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.) The EIR “ ‘is the
heart of CEQA’ ” (Guidelines, § 15003, subd. (a)), and it protects both the environment
and informed self-government. (Goleta Valley, at p. 564.)
“[A] public agency is not required to favor environmental protection over other
considerations, but it must disclose and carefully consider the environmental
6
Generally, a party may not simply file a notice of joinder but must file a notice of
appeal in the trial court to perfect an appeal from an appealable order or judgment. (Cal.
Rules of Court, rule 8.100(a)(1); cf. rule 8.200(a)(5) [party to appeal may join in
appellate brief]; but see Rialto Citizens for Responsible Growth v. City of Rialto (2012)
208 Cal.App.4th 899, 909 (Rialto Citizens) [city and its redevelopment agency “join[ed]”
retail store’s appeal in CEQA case].) Because the joinder here was filed well within the
time to appeal and without objection, we may and do construe it as a notice of appeal and
treat the Marin County entities as appellants and cross-respondents, as they identify
themselves in the appellate briefs signed by county counsel. (Rule 8.100(a)(2) [notice of
appeal must be liberally construed and is sufficient if it identifies judgment or order
appealed from].)
4
consequences of its actions, mitigate or avoid adverse environmental effects if feasible,
explain the reasons for its actions, and afford the public and other affected agencies an
opportunity to participate meaningfully in the environmental review process.” (Ballona
Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 466-467
(Ballona Wetlands).) An EIR must include a detailed statement summarizing (1) all of a
project’s significant effects on the environment, (2) any unavoidable or irreversible
significant effects on the environment, (3) mitigation measures, (4) alternatives to the
proposed project, and (5) the growth-inducing impacts of the proposed project. (§ 21100,
subd. (b).) All of these requirements, except the last, are implicated in this appeal.
B. The Standards of Review.
Our review of the administrative record for error in a CEQA case, as in other
mandamus cases, is the same as the trial court’s. (Vineyard Area Citizens for Responsible
Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427 (Vineyard Area
Citizens).) That is, we review the public agency’s action, not the trial court’s decision.
(Ibid.) In reviewing the agency’s action, our inquiry shall extend “only to whether there
was a prejudicial abuse of discretion.” (§ 21168.5.) An abuse of discretion may be
established in one of two ways: (1) if the agency did not proceed in a manner required by
law or (2) if its determination or decision was not supported by substantial evidence.
(Ibid.) “Judicial review of these two types of error differs significantly.” (Vineyard Area
Citizens, at p. 435.)
We review de novo whether the agency used the correct procedures, and we
scrupulously enforce all legislatively mandated CEQA requirements. (Vineyard Area
Citizens, supra, 40 Cal.4th at p. 435.) “The failure to provide information required by
CEQA in an EIR is a failure to proceed in a manner required by law. [Citation.] The
failure to comply with CEQA’s procedural or information disclosure requirements is a
prejudicial abuse of discretion if the decision makers or the public is deprived of
information necessary to make a meaningful assessment of the environmental impacts.”
(Ballona Wetlands, supra, 201 Cal.App.4th at p. 468.)
5
We accord greater deference, however, when we review the agency’s factual
conclusions for substantial evidence. (Vineyard Area Citizens, supra, 40 Cal.4th at
p. 435.) Substantial evidence “includes fact, a reasonable assumption predicated upon
fact, or expert opinion supported by fact,” but it does not include “argument, speculation,
unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or
evidence of social or economic impacts that do not contribute to, or are not caused by,
physical impacts on the environment.” (§ 21080, subd. (e)(1), (2).) Substantial evidence
is defined by the Guidelines as “information that a fair argument can be made to support
a conclusion, even though other conclusions might also be reached.” (Guidelines,
§ 15384, subd. (a).) In reviewing for substantial evidence, we may not set aside the
approval of an EIR on the ground that a different conclusion would have been equally or
more reasonable. (Vineyard Area Citizens, supra, 40 Cal.4th at p. 435.) Our job “ ‘is not
to weigh conflicting evidence and determine who has the better argument.’ ” (Ibid.) We
do not consider the correctness of an EIR’s conclusions but instead pass only upon
whether it is supported by substantial evidence and is sufficient as an informative
document. (Ballona Wetlands, supra, 201 Cal.App.4th at p. 468; Concerned Citizens of
South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 835-
836 (Concerned Citizens).)
“Technical perfection is not required” in an EIR, and we look “not for an
exhaustive analysis but for adequacy, completeness and a good-faith effort at full
disclosure.” (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th
351, 368.) An EIR is presumed to have complied with the statute (§ 21167.3, subd. (b)),
and the plaintiff challenging an EIR has the burden to prove otherwise. (Concerned
Citizens, supra, 24 Cal.App.4th at p. 836.)
With these general principles and the relevant standards of review in mind, we
turn to the issues raised by the parties.
6
C. The EIR’s Discussion of a Nonspecific Alternative Off-Site Project Was
Adequate.
1. The 1994 EIR’s Discussion of a Possible Off-site Alternative.
According to the 1994 EIR, a new landfill could not be developed on about two-
thirds of Marin County because the land consists of urban centers, open-space preserves,
wetlands, county conservation zones, or areas subject to 100-year flooding. The report
discussed how the county had identified five possible alternative landfill sites in 1988 as
part of a solid-waste management plan. The five sites all (1) were accessible to existing
and adequate roads within Marin County, (2) measured more than 250 acres, (3) included
canyon areas that were confined, with limited drainage basins, (4) had topographic
features favorable to site grading and waste disposal, with slopes generally less than
20 percent, (5) were situated away from permanent creeks or areas subject to flooding or
high groundwater conditions, and (6) had low visibility, were compatible with adjacent
land uses, and had low potential for negative public reaction. The 1994 EIR noted that
any new alternative site would be required to comply with federal regulations.
The 1994 EIR analyzed the five selected locations as possible alternatives to the
expansion of the permit then under consideration, and it concluded that they would result
in greater potential environmental harm.
2. The Final EIR’s Description of an Off-site Alternative.
Redwood did not re-analyze these five alternative locations in its EIR for the
current permit expansion. Instead, the final EIR briefly summarized the 1994 EIR’s
findings, and it again rejected these locations, reasoning that they were unlikely to
substantially reduce or avoid the environmental impacts of the current permit expansion.
The final EIR also took an approach that had not been taken in the 1994 EIR by
analyzing a hypothetical off-site alternative.7 This hypothetical was an “unidentified
landfill site” that would meet minimum criteria from a 1995 siting element for Marin
7
In addition, the final EIR analyzed four other alternatives that are not challenged by the
landfill opponents.
7
County and its cities.8 Marin EHS explained that the purpose of the analysis was to
evaluate whether it would be preferable to gain more landfill capacity by expanding the
existing site or by establishing a new landfill somewhere else in the county, and that the
EIR “need not specify a particular location . . . for an effective, though general,
comparison.” In doing so, the EIR essentially recognized that any new landfill meeting
the required criteria, regardless of its location, would result in significant environmental
effects.
According to the EIR, the first goal of the 1995 siting element was to assure 15
years of disposal capacity for Marin County. The element also listed 10 criteria that
needed to be considered for any new site. These criteria were that the site should (1) not
be on an earthquake fault, (2) not be in a 100-year flood plain, (3) be at least five feet
above the highest anticipated ground-water level, (4) be in a location authorized for a
solid-waste facility under the applicable city or county general plan, (5) be compatible
with land uses specified for adjacent property covered by different general plans, (6) be at
least 5,000 or 10,000 feet away from any airport runway, depending on the type of
aircrafts that use the runway, (7) comply with federal, state, and local laws, (8) not cause
a net loss of wetlands, (9) not be where it could harm water quality, and (10) not be in a
stream-conservation area.
The EIR assumed that the hypothetical alternative “would be located in a remote
upland area zoned for agriculture, with close proximity to the U.S. 101 corridor, and
without incompatible adjacent land uses.” In describing the types of environmental
impacts that could be expected, it mentioned that any alternative site would unavoidably
impact views and the visual character of the selected land, impose greater construction-
related impacts on air quality than the planned project, impact biological resources in an
area zoned for agricultural use, alter the hydrology of the selected site, likely conflict
with several policies in the agricultural element of Marin’s countywide plan, require
8
Under the California Integrated Waste Management Act, counties must prepare an
integrated waste management plan containing several elements, including one for source
reduction and recycling. (§§ 40900 et seq., 40901, 40912, 40950.)
8
public services and utilities where they are not likely currently provided, possibly impact
recreational uses negatively, and possibly disturb cultural and mineral resources. Still,
the EIR pointed out that the alternative site would provide environmental advantages
because it would be required to satisfy applicable regulations requiring the landfill to be
lined, and it would result in fewer mitigation measures than would be required by
expanding the current permit.
The EIR concluded that the effects on public health and safety as well as
transportation and traffic would be about the same at the off-site alternative as those
expected from the proposed project. But the off-site alternative was ultimately rejected
because its environmental impacts were greater than those of the mitigated alternative
that was eventually adopted.
3. The EIR Sufficiently Analyzed an Off-site Alternative.
The landfill opponents claim that by failing to identify a specific location for the
off-site alternative, Marin EHS deprived the public of an opportunity to meaningfully
comment on the alternative. They also claim that the EIR’s conclusion that the “off-site
alternative is infeasible” was not supported by substantial evidence. We disagree with
both contentions.
One goal of CEQA is to identify both significant environmental effects of a
proposed project and feasible alternatives that would avoid or substantially lessen those
effects. (§ 21002.) To further that goal, an EIR must consider and analyze project
alternatives that would reduce adverse environmental impacts. (§§ 21061, 21100,
subd. (b)(4); In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1163.) The Guidelines provide
that an EIR “shall describe a range of reasonable alternatives to the project, or to the
location of the project, which would feasibly attain most of the basic objectives of the
project but would avoid or substantially lessen any of the significant effects of the
project, and evaluate the comparative merits of the alternatives.” (Guidelines, § 15126.6,
subd. (a).) But the Guidelines specify that “[t]here is no ironclad rule governing the
nature or scope of the alternatives to be discussed other than the rule of reason.” (Ibid.;
see also In re Bay-Delta etc., at p. 1163.) The rule of reason “requires the EIR to set
9
forth only those alternatives necessary to permit a reasoned choice.” (Guidelines,
§ 15126.6, subd. (f).) “The EIR shall include sufficient information about each
alternative to allow meaningful evaluation, analysis, and comparison with the proposed
project.” (Guidelines, § 15126.6, subd. (d).)
The parties’ dispute boils down to whether it was reasonable for the EIR to
analyze an off-site alternative without specifying a particular location, other than
referencing and summarizing the five locations discussed in the 1994 EIR. We conclude
it was reasonable to do so under the circumstances. There is “no authority or rationale
for an inflexible rule that the availability of other sites always must be considered or that
it never need be considered. Situations differ; what is reasonable in one case may be
unreasonable in another. It is necessary to examine the particular situation presented to
determine whether the availability of other feasible sites must be considered in the EIR.”
(Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1179.)
We agree with Redwood and the Marin County entities that CEQA and the Guidelines do
not invariably compel all EIRs to consider off-site locations because particular
circumstances may render such a consideration reasonably unnecessary. (Mira Mar
Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 491 [CEQA does
not expressly require a discussion of alternative project locations].)
The EIR’s consideration of the hypothetical alternative location here was
reasonable. The landfill opponents claim that Marin EHS “refused to provide an actual
location, thus depriving the public of an opportunity to meaningfully comment on the off-
site alternative,” apparently suggesting that Marin EHS was hiding information about a
particular viable off-site location. But they direct us to no evidence supporting such a
suggestion. (§ 21080, subd. (e)(1) [substantial evidence includes “reasonable
assumption” based on fact].) Redwood and the Marin County entities explain that the
nonspecific off-site alternative was evaluated “at a conceptual level for purposes of
providing additional information.” This approach was taken because five specific sites
had been considered and rejected in the 1994 EIR, and the siting element required any
new site to be able to accept waste for 15 years and be suitable under the 10 criteria. We
10
conclude that Marin EHS sufficiently considered and analyzed a range of reasonable
project alternatives that would reduce adverse environmental impacts. (§ 21061;
Guidelines, § 15126.6, subd. (a).)
The landfill opponents rely on San Joaquin Raptor/Wildlife Rescue Center v.
County of Stanislaus (1994) 27 Cal.App.4th 713, but this reliance is misplaced. In San
Joaquin Raptor, the development consisted of 633 single-family homes, a commercial
area, a park, and a district office building and meeting hall, to be located on 154.24 acres
north of an unincorporated community in Stanislaus County. (Id. at p. 718.) The EIR’s
only discussion of a possible alternative site was a statement that there were “ ‘numerous
alternative sites for the project, including existing incorporated cities, other
unincorporated communities, and proposed new communities.’ ” (Id. at p. 736, italics
added.) After acknowledging the availability of numerous alternative sites, the EIR
failed to clearly identify any in particular, and it simply concluded that “[t]he impacts
associated with this development would be much the same if implemented at alternative
sites . . . .” (Ibid.) San Joaquin Raptor concluded that the EIR “did not adequately
identify and analyze the feasibility of admittedly available alternative sites.” (Ibid.,
italics added.) In contrast, here there are no identified available alternatives other than
those discussed in the 1994 EIR. The options of siting a large new and legally compliant
landfill to serve Marin County, where at least two-thirds of the county is inappropriate for
such a facility, are fewer than the options of siting a community development in
unincorporated Stanislaus County. Moreover, unlike the short, cursory summary of
potential off-site alternatives in San Joaquin Raptor, the EIR here listed all the criteria for
a new landfill and analyzed the serious environmental effects that such a new landfill—
wherever it was located—would present. (Cf. ibid.) We conclude that the EIR’s analysis
of the hypothetical alternative under the circumstances of this case does not warrant
setting aside the EIR.
We also reject the landfill opponents’ argument that there was insufficient
evidence to support the EIR’s finding that an off-site alternative was infeasible. This
contention is based on their argument that the EIR improperly failed to identify the
11
alternative’s specific location, an argument we already have rejected. This case is
distinguishable from Center for Biological Diversity v. County of San Bernardino (2010)
185 Cal.App.4th 866, upon which the landfill opponents rely. The EIR in that case
analyzed the potential environmental effects of a proposed open-air facility for
composting materials derived both from plants and human waste. (Id. at pp. 874-875.) It
rejected an enclosed facility as uneconomical and impractical because it would cost
anywhere from 28 to 41 times the cost of a conventional facility. (Id. at pp. 876-877.)
These findings were based solely on an unsupported memorandum from an
environmental-consulting firm, and the county failed to respond to information provided
during the review process indicating that there were enclosed facilities operating in Los
Angeles and Riverside Counties, as well as in other locations throughout the country.
(Id. at pp. 876-877, 884.) The court concluded that the EIR was inadequate because the
memorandum omitted vital information and there was no evidence that the alternative
was technologically infeasible or impractical on account of additional costs. (Id. at
pp. 883-885.) In contrast, the landfill opponents here do not challenge any specific
finding about the off-site alternative, only that the EIR’s conclusions were speculative
because no specific location was identified. Because it was reasonable under the
circumstances to analyze a hypothetical location in addition to those considered in the
1994 EIR, the EIR was not deficient for failing to identify a particular off-site alternative
location.
D. The EIR Did Not Improperly Defer Mitigation Measures to Address Potential
Sea-level Rise and Groundwater Contamination.
1. Summary of Applicable Law.
As we have discussed, one of CEQA’s purposes is to help public agencies identify
both significant environmental effects of proposed projects and feasible mitigation
measures that would avoid or substantially lessen those effects. (§ 21002.) An agency
should not approve a proposed project that will significantly affect the environment if
there are feasible mitigation measures that would substantially reduce those
environmental effects. (§§ 21002, 21002.1, subd. (b); Guidelines, § 15021, subd. (a)(2);
12
Ballona Wetlands, supra, 201 Cal.App.4th at p. 466.) CEQA thus mandates that an EIR
include a detailed statement describing proposed mitigation measures. (§ 21100,
subd. (b)(3); Guidelines, § 15126.4.) In general, formulating mitigation measures should
not be deferred until some time in the future. (Guidelines, § 15126.4, subd. (a)(1)(B).)
“However, measures may specify performance standards which would mitigate the
significant effect of the project and which may be accomplished in more than one
specified way.” (Ibid.)
Although “[t]here is not a single, all-encompassing statement of the judge-made
exception to the general rule prohibiting the deferral of the formulation of mitigation
measures” (POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 735), we
summarize the principles that apply here. “[W]hen, for practical reasons, mitigation
measures cannot be fully formulated at the time of project approval, the lead agency may
commit itself to devising them at a later time, provided the measures are required to
‘satisfy specific performance criteria articulated at the time of project approval.’ ”
(Rialto Citizens, supra, 208 Cal.App.4th at p. 944, italics omitted.) Mitigation measures
improperly defer environmental assessment where they rely on “tentative plans for future
mitigation after completion of the CEQA process.” (Communities for a Better
Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 92 (CBE).) “An EIR is
inadequate if ‘[t]he success or failure of mitigation efforts . . . may largely depend upon
management plans that have not yet been formulated, and have not been subject to
analysis and review with the EIR.’ [Citation.] ‘A study conducted after approval of a
project will inevitably have a diminished influence on decisionmaking. Even if the study
is subject to administrative approval, it is analogous to the sort of post hoc rationalization
of agency actions that has been repeatedly condemned in decisions construing CEQA.’ ”
(Ibid.) Where an EIR improperly defers analysis of mitigation measures, the approving
agency abuses its discretion by failing to proceed as required by law. (Id. at pp. 89-90;
§ 21168.5.)
Lead agencies have been allowed to defer formulating specific mitigation
measures where they: “(1) undertook a complete analysis of the significance of the
13
environmental impact, (2) proposed potential mitigation measures early in the planning
process, and (3) articulated specific performance criteria that would ensure that adequate
mitigation measures were eventually implemented.” (CBE, supra, 184 Cal.App.4th at
p. 95.)
2. The EIR Did Not Improperly Defer Mitigation of Projected Sea-level Rise.
a. Background
Redwood Landfill “is located in flat, low-lying, drained marshlands,” and it “is
surrounded by a complex network of natural and manmade surface water bodies
including ditches, ponds, creeks, and sloughs.” It is bound on its northern and eastern
sides by San Antonio Creek, which in turns flows to the Petaluma River and eventually
into San Pablo Bay.
The EIR lists several environmental impacts of the proposed project related to
hydrology and water quality. One of them is potential flooding of areas proposed for
“composting and co-composting operations” and relocated administration facilities,
which will be located within a 100-year flood plain (identified as impact No. 3.5.6 in the
“Redwood Landfill Solid Waste Facilities Permit Revision Mitigation Monitoring and
Report Program,” dated November 17, 2008). To address this potential effect, the EIR
contains four mitigation measures, one of which is challenged by the landfill opponents.
Protecting the landfill from flooding is not a new concern. An earthen levee
system that reportedly dates from the 1940s sits along the edge of San Antonio Creek.
The levee system has been periodically raised and maintained. The first mitigation
measure directed at preventing flooding (No. 3.5.6a) is meant to address flooding
concerns identified in impact No. 3.5.6. It states that the current elevation for a 100-year
flood is about six to seven feet above sea level, and it calls for raising the height of the
exterior levee to nine feet above median sea level and increasing the width of the levee to
10 feet, with completion by December 31, 2011. The landfill opponents do not challenge
this mitigation measure.
They also do not challenge two additional mitigation measures meant to ensure
that levee improvements are designed properly. By way of background, Redwood had
14
planned for several years to raise the entire length of the levee to nine feet above mean
sea level as part of the plans approved in connection with the 1994 EIR. In
November 2006, construction was completed on a section of the levee raising it to
9.5 feet above mean sea level. The following month, a 350-foot portion of the newly
upgraded levee failed. According to Redwood, the failure did not result in any
unauthorized flooding or discharge into San Antonio Creek. An engineering analysis
concluded that the bay mud at the location could not support the weight of the
reconstructed levee. A temporary repair was made, and the engineers recommended
recalculating the strength and stability of the structure “using the correct, established
factors and methods.”
As part of the EIR process at issue here, it became clear that mitigation measures
were necessary to ensure that the levee repair and future levee upgrades were adequately
designed and constructed. The final EIR second amendment included two measures
(Nos. 3.5.6b and 3.5.6c) aimed at studying the slope stability of levee upgrades to
determine whether remedial action was necessary and to ensure that future upgrades were
properly designed and constructed. Again, the landfill opponents do not challenge those
two measures.
But the landfill opponents do challenge mitigation measure No. 3.5.6d, which is
aimed at protecting the landfill against future rises in sea levels caused by global
warming. Sea-level rise and fluctuations in tides affect the Petaluma River, near the
Redwood Landfill property. During the EIR process, Redwood acknowledged the
possibility of having to raise the levee system even higher to account for settling and
accumulating underlying bay mud and to account for sea-level rise due to climate
15
change.9 The Intergovernmental Panel on Climate Change estimated a rise in the global
sea level of between 0.9 to 1.4 feet by the end of this century, and a more dramatic rise of
up to 32.8 feet after the 21st century.10
Mitigation measure No. 3.5.6d provides that before project approval Redwood
“shall prepare and submit to [Marin EHS] and the San Francisco Bay Regional Water
Quality Control Board a plan for long-term flood protection of the site. The plan will
include a consideration of feasible options for achieving protection from the 100-year
flood in the face of rising sea level[s] and increased flood frequency and intensity. The
plan shall include selection of the preferred method or methods for achieving flood
protection, and both a schedule and financial assurances for their implementation. The
engineering basis for the plan shall be independently peer reviewed by a Registered
Geotechnical Engineer prior to submittal for approval. The plan will be drafted and then
updated every 5 years during the remaining operational life of the landfill and the
postclosure maintenance period to ensure that it is current with the most recent and
broadly-accepted predictions for flood levels, following consultation with the U.S.
Geological Survey, the San Francisco Bay Conservation and Development Commission,
and other monitoring agencies that track bay and ocean levels and that may provide
estimates of mean sea level rise and areas subject to future inundation.” Adoption of all
four measures was meant to ensure that potential flooding was reduced to a less-than-
significant level.
9
Citing Ballona Wetlands, supra, 201 Cal.App.4th at pages 473 to 474, Redwood and the
Marin County entities briefly contend that the EIR had no duty to analyze or mitigate the
environment’s effect on the project (as opposed to the project’s effect on the
environment). But Ballona Wetlands is distinguishable because, although the EIR may
not specifically say so, future sea rise here presumably would not only impact the project
but would also impact the environment by contaminating waterways. (Cf. Parker
Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 782-785
[questioning whether CEQA regulates environment’s effect on project, as opposed to
project’s effect on environment].)
10
To be clear, the landfill is located miles from the ocean. The apparent concern is that
as ocean levels rise, so too will San Pablo Bay and the waterways adjacent to the landfill
that feed into the bay, all of which are “subject to tidal influence.”
16
As part of implementing mitigation measure No. 3.5.6d, Geosyntec consultants
prepared a long-term flood-protection plan for Redwood dated October 16, 2008. The
plan noted that “the study of climate change and its effects on local tidal fluctuation and
runoff is a rapidly developing field,” and it stated that every five years the plan would be
reevaluated and reissued to incorporate and address new information. The then-current
proposed exterior levee design at the Redwood Landfill was “a 9+ ft minimum elevation
above . . . the nationally referenced mean sea level . . . .” By contrast, the peak stage for
a 100-year storm was calculated at 6.3 feet. The plan analyzed existing sea-level
projections and concluded that nearby water was not expected to top the current levees.
On the other hand, levee improvements would be needed after “about 2015 to 2030” in
order to ensure two feet of space between projected river peak and the top of the levee.
The plan stated that Redwood’s levees were expected to provide sufficient flood
protection for the following five to 10 years, and exterior levees would then need to be
enlarged to account for ongoing settlement of the levees and sea-level rise. The report
listed six different methods to enlarge existing levees and concluded that whichever
method was used, “appropriate design, construction, monitoring, and maintenance
procedure should be followed.” The report concluded that in light of “the uncertainty and
continuing research involved in predicting the impacts of climate change on the SF Bay
Area, the flood protection estimates should be revisited with each” long-term flood-
protection plan. Levees will be surveyed to evaluate the effects of levee settlement, and
based on those surveys’ updated information, “recommendations for updated levee flood
protection elevations, if appropriate, and levee maintenance and enlargement, if needed,
will be prepared and implemented.”
A different engineering firm provided a peer review of the long-term flood control
plan and opined that Geosyntec’s evaluation of settlements and research about predicted
sea-level rise were “generally appropriate for the site conditions.” The firm noted that
reviewing and updating the flood-protection plan every five years was appropriate, given
the “unknowns associated with sea level rise.”
17
b. Analysis
The parties dispute whether the adoption of mitigation measure No. 3.5.6d
improperly deferred CEQA’s required environmental assessment.
As an initial matter, we agree with Redwood and the Marin County entities that a
very practical reason prevented mitigation measures from being “fully formulated” at the
time of project approval: namely, the uncertainty of when and how much sea levels may
rise. (Rialto Citizens, supra, 208 Cal.App.4th at p. 944.) The landfill opponents
apparently do not contend otherwise. Thus, the question is whether the measure’s
performance criteria were sufficiently specific at the time of project approval. (Ibid.)
Redwood acknowledges that its levee system must be maintained to protect the
landfill from flooding, and it has previously demonstrated a commitment to do so. The
EIR continues this commitment by agreeing to study the issue every five years to
determine whether the levees should be raised even higher. This strikes us as reasonable
in the face of the substantial uncertainties of sea-level rise.
The landfill opponents compare the EIR in this case to the one found inadequate in
CBE, supra, 184 Cal.App.4th 70. In that case, Chevron sought permits to allow its
Richmond refinery to process additional types of crude oil. (Id. at p. 75.) A draft EIR
stated that the project would result in a net increase of 898,000 metric tons of carbon
dioxide emissions per year (reportedly the equivalent of the emissions generated by
160,000 cars), but it declined to make conclusions about the possible impacts of the
emissions. (Id. at pp. 90-91.) After several objections were raised to the draft EIR’s
treatment of greenhouse gases, the final EIR acknowledged the environmental
significance of greenhouse-gas emissions and their effect on global warming, but it did
not conclude that the refinery’s additional emissions would have a significant effect on
the environment. (Id. at p. 90.) After the final EIR was issued, “there was an outpouring
of public comment” criticizing the downplaying of the effect of greenhouse gases. (Ibid.)
After the passage of the California Global Warming Solutions Act of 2006 (California
Global Warming Act, Health & Saf. Code, § 38500 et seq.) and the publication of a white
paper on how to assess greenhouse-gas emissions, a new volume of the EIR was issued
18
that acknowledged that the increase of 898,000 metric tons of emissions would most
likely have a significant effect on the environment. (CBE, at p. 91.) The final EIR
proposed a mitigation measure to require Chevron, within a year of project approval, to
submit to a plan to be approved by Richmond’s city council to reduce the additional
emissions. (Ibid.) The report also listed a handful of possible measures to be considered
to mitigate the emissions. (Id. at p. 92.)
This court found that the mitigation plan was deficient because it “merely
propose[d] a generalized goal of no net increase in greenhouse gas emissions and then
set[] out a handful of cursorily described mitigation measures for future consideration
that might serve to mitigate the 898,000 metric tons of emissions resulting from the
Project.” (CBE, supra, 184 Cal.App.4th at p. 93.) The possible mitigation measures
were “nonexclusive, undefined, untested and of unknown efficacy,” and the only measure
of the mitigation plan’s success was whether the city council adopted it—“outside of any
public process a year after the Project [was] approved.” (Ibid.) The court concluded that
“for kinds of impacts for which mitigation is known to be feasible, the EIR may give the
lead agency a choice of which measure to adopt, so long as the measures are coupled
with specific and mandatory performance standards to ensure that the measures, as
implemented, will be effective.” (Id. at p. 94, italics added.)
Redwood and the Marin County entities contend that the EIR here is
distinguishable because the mitigation is plainly set forth in the measure itself:
“protection from the 100-year flood in the face of rising sea level and increased flood
frequency and intensity.” The landfill opponents dismiss this performance measure,
claiming it lacks adequate performance criteria because there is no indication how
Redwood must design and construct the levees. They acknowledge that the challenged
mitigation measure specifies that levees shall continue to be designed in order to protect
the landfill from a 100-year flood, but they posit that the measure “could have specified a
minimum levee height as a performance standard, which is the performance criteria now
for protection against a 100 year flood.”
19
We conclude that Redwood and the Marin County entities have the stronger
argument. There were compelling practical reasons not to set a minimum levee height at
the time the EIR was prepared because it was unclear when and how high sea levels
would rise, and how that rise might affect the waterways near the landfill. Because of
this uncertainty, mitigation measure No. 3.5.6d requires Redwood to review, every five
years during the entire remaining operating life of the landfill and postclosure
maintenance period, whether known sea-level estimates are “current with the most recent
and broadly-accepted predictions for flood levels, following consultation with the U.S.
Geological Survey, the San Francisco Bay Conservation and Development Commission,
and other monitoring agencies that track bay and ocean levels and that may provide
estimates of mean sea level rise and areas subject to future inundation.” This reference to
widely-accepted sea-level predictions is an adequate measure to guide compliance, and
we are therefore not persuaded by the landfill opponents’ argument that mitigation
measure fails to incorporate or refer to any regulatory scheme. (Oakland Heritage
Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 906 [“[A] condition requiring
compliance with regulations is a common and reasonable mitigation measure, and may be
proper where it is reasonable to expect compliance”].)
This case is distinguishable from San Joaquin Raptor Rescue Center v. County of
Merced (2007) 149 Cal.App.4th 645, upon which the landfill opponents rely. In that
case, the court faulted an EIR because it included a generalized goal of maintaining
biological resources near the proposed project but failed to include any specific criteria or
standards to protect those resources. Thus, the success or failure of the mitigation efforts
depended on plans that had not yet been formulated or analyzed without any justification
for their deferral. (Id. at pp. 668-671.) Here, the EIR reveals an obligation on the part of
Redwood to protect the levee system from a 100-year flood. Currently, that means
keeping the levees nine feet above mean sea level. Given the uncertainty about the
timing and extent of sea-level rise, we conclude that this approach is specific enough.
(California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603,
621 [“[W]hen a public agency has evaluated the potentially significant impacts of a
20
project and has identified measures that will mitigate those impacts, the agency does not
have to commit to any particular mitigation measure in the EIR, so long as it commits to
mitigating the significant impacts of the project”], italics added.) This court recently
recognized that “premature attempts to evaluate effects that are uncertain to occur or
whose severity cannot reliably be measured is ‘a needlessly wasteful drain of the public
fisc.’ ” (Citizens for a Sustainable Treasure Island v. City and County of San Francisco
(2014) 227 Cal.App.4th 1036, 1061.)
We agree with Redwood and the Marin County entities that this case is akin to
Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, where
Sacramento’s city council (the City) sought to expand its downtown convention center
and build an office tower. (Id. at p. 1015.) To address concerns about lack of adequate
parking, the EIR required a transportation-management plan to be prepared to reduce
project-related traffic and parking. (Id. at pp. 1019-1020.) The EIR also listed potential
mitigation measures and identified seven to be studied, analyzed, and possibly
incorporated into the transportation-management plan. (Id. at pp. 1021-1023, 1030.) The
Court of Appeal rejected the challenge to these measures as inadequate, concluding that
the City “did not minimize or ignore the [parking] impacts in reliance on some future
parking study” and in fact approved funds for “a major study of downtown
transportation.” (Id. at pp. 1028-1029.) “[F]or kinds of impacts for which mitigation is
known to be feasible, but where practical considerations prohibit devising such measures
early in the planning process . . . , the agency can commit itself to eventually devising
measures that will satisfy specific performance criteria articulated at the time of project
approval. Where future action to carry a project forward is contingent on devising means
to satisfy such criteria, the agency should be able to rely on its commitment as evidence
that significant impacts will in fact be mitigated.” (Ibid.) As the City recognized in
Sacramento Old City Assn., Redwood and the Marin County entities here recognize the
possible significant environmental effects of the project and required a financial
commitment to offset these impacts. (See also § 43509 [landfill owners required to
21
calculate costs for closure and postclosure maintenance for as long as solid waste could
adversely affect water quality].)
Finally, we reject the landfill opponents’ brief argument that sea-level rise was
addressed only late in the process. The flood plan was completed prior to project
approval, parties were provided access to it before the project was approved, and a
coalition of environmental groups (including respondent No Wetlands) commented on it.
In short, we disagree with the trial court’s conclusion that the EIR improperly
deferred mitigation of sea-level rise.
3. The EIR Did Not Improperly Defer Mitigation to Protect Groundwater.
a. Background
The landfill opponents next challenge mitigation measures meant to protect
groundwater from leachate, which is “liquid that has come in contact with or percolated
through waste materials and has extracted or dissolved substances therefrom.” As with
protecting the area from flooding, managing leachate at the Redwood Landfill is not new.
A leachate-management plan was developed in 1992, and a leachate collection-and-
removal trench was built around the perimeter of the landfill over a 13-year period, from
1991 to 2004. Redwood has annually reported on the leachate trench to the California
Regional Water Quality Control Board, San Francisco Bay Region. The landfill also
maintains a system to monitor and detect any release of leachate into groundwater, as
required by California Code of Regulations, title 27, section 20380, and there has been no
verified escape of leachate from the site.
During the comment period, concerns were raised over the effectiveness of the
leachate collection-and-removal system. An amended response to comments, dated
March 2008, summarized several hypothetical “failure scenarios” in which leachate could
escape and identified mitigation measures to prevent these scenarios. One scenario could
be caused by a land-filling method that was discontinued by 1970. When the landfill was
first opened, the operator used a trench-fill method, whereby trenches were dug, filled
with waste, and then covered. Little is known about these past procedures, and it is
unclear how deep the trenches were dug. But they may have been dug below the layer of
22
bay mud (which is less permeable) and into more porous alluvium, which could allow
leachate to contaminate groundwater.
The EIR contains two mitigation measures to address the possibility of leachate
migrating through old trench fills, and they are both challenged by the landfill opponents.
Measure No. 3.4.7i requires an investigation of the trenches and provides, “The applicant
shall, through historical research and site investigations, map the location and dimensions
(including depth) of all trench fills located at the site. The applicant shall undertake any
necessary subsurface investigations to ascertain whether any trench fills were excavated
into the Pleistocene Alluvium underlying the Bay Mud. If not, no further action is
required. If so, the applicant shall develop and implement a plan to correct this condition.
The plan shall be reviewed and approved by the RWQCB [California Regional Water
Quality Control Board, San Francisco Bay Region]. The plan may entail: a. installation
of leachate extraction wells at sufficient frequency and depth within the old trenches to
prevent downward migration of leachate into the underlying alluvium; b. excavation of
all waste from the trench and replacement with a liner that meets current regulatory
standards; or c. another engineered solution.”
A related mitigation measure, No. 3.4.7j, also addresses the possible migration of
leachate: “After completion of the study required by Mitigation Measure 3.4.7i, the
RWQCB shall make a determination as to whether an improved program to monitor
groundwater within the Pleistocene Alluvium that underlies the Bay Mud is warranted to
ensure that localized inconsistencies in the hydrogeologic system are considered, and that
monitoring data characterize the quality of groundwater under both reference conditions
and that which could be contaminated by leachate from the landfill. The applicant shall
consult with the RWQCB regarding the need to[] locate and install additional wells,
screened in the alluvium, to augment the existing wells (currently there are 4 wells in the
alluvium . . . ). Since the gradient within the alluvium is tidally influenced, the alluvial
well network will be evaluated to define upgradient and downgradient locations (with
consideration of tidal influence) in order to properly locate wells. Should additional
monitoring be required by RWQCB, a sampling and analysis plan, including schedule,
23
shall be developed in consultation with the RWQCB, and monitoring results will be
added to the facility’s semi-annual and annual monitoring reports to the RWQCB. If
monitoring reveals that contamination is occurring in the alluvium, the applicant shall
develop a remediation plan. The remediation plan shall be reviewed and approved by the
RWQCB. Remediation may entail pump and treat methods, treat-in-place methods, or
other methods approved by the RWQCB. Treatment shall continue as long as
contamination is present or until a water quality objective established by the RWQCB is
met.”
b. Analysis
The landfill opponents argue that the EIR improperly defers developing a plan to
monitor and remediate possible leachate contamination. The challenged mitigation
measures, however, are only two of 11 lengthy measures designed to address the
concern.11 The other nine measures call for Redwood (1) to continue ongoing practices
to minimize leachate and promote its collection and reuse, (2) to continue monitoring
daily activity at the landfill and adhere to steps already in place under the landfill’s leak-
or-spill contingency plan, (3) to take steps following a “significant seismic or rare rainfall
event” to address possible disruption to the leachate systems, (4) to take additional and
specific steps in the event leachate is detected, (5) to commence a leachate-pumping
program, (6) to update its leak-or-spill contingency plan to accommodate changes in the
proposed project, (7) to implement a hydraulic-gradient-monitoring program, (8) to
maintain equipment capable of continuing operations during a power outage, and (9) to
continue operating the leachate system after the landfill is closed. These mitigation
measures, which are unchallenged by the landfill opponents, demonstrate a commitment
to keep leachate from contaminating groundwater.
The landfill opponents nonetheless contend, and the trial court agreed, that the two
challenged mitigation measures amount to an improper deferral of a complete analysis of
11
Impact No. 3.4.7 provides: “If not properly designed, the proposed Leachate
Collection and Recovery System . . . could allow leachate to migrate off-site and
potentially contaminate off-site groundwater and surface water.”
24
the potential impact on groundwater. We disagree. The opponents again compare this
case to CBE, supra, 184 Cal.App.4th 70. But part of the reason this court found the
mitigation measures in CBE inadequate was because Chevron acknowledged only late in
the process that the emission of greenhouse gases could negatively impact the
environment. (Id. at pp. 90-92.) While it is true that the two mitigation measures here
were introduced only after concerns were raised during the comment period, Redwood
never denied the need for leachate management, and it has a demonstrated record of
monitoring, managing, and reporting on its leachate system.
The landfill opponents claim that the measures lack “objective criteria or
performance standards,” such as compliance with a regulatory scheme. But the two
measures do not exist in a vacuum and are part of a detailed and ongoing plan to monitor
leachate. The current system complies with the California Code of Regulations, and
there is no evidence to suggest that the new monitoring system will not. And because
there was no evidence of leachate migration, it was reasonable for the EIR to conclude
that further study was necessary before further mitigation measures were specified.
(Citizens for a Sustainable Treasure Island v. City and County of San Francisco, supra,
227 Cal.App.4th at pp. 1060-1061 [“ ‘foreseeing the unforeseeable’ is not required, nor is
predicting the unpredictable or quantifying the unquantifiable”]; Save Cuyama Valley v.
County of Santa Barbara (2013) 213 Cal.App.4th 1059, 1070-1071 [mitigation measure
sufficient where mining company agreed to take corrective action if “ ‘adverse hydraulic
conditions’ ” detected]; National Parks & Conservation Assn. v. County of Riverside
(1999) 71 Cal.App.4th 1341, 1366 [reasonable to conclude that further study necessary
before requiring fence to protect species from landfill project]; Towards Responsibility in
Planning v. City Council (1988) 200 Cal.App.3d 671, 681 [adoption of EIR “need not be
interminably delayed to include results of works in progress which might shed some
additional light on the subject”].)
We conclude that the challenged mitigation measures were adequate.
25
E. The EIR Sufficiently Considered Potential Health Impacts from Air Emissions.
1. The EIR’s Discussion of the Project’s Effect on Air Quality.
Solid-waste landfills generate gases formed when organic waste decomposes and
when vapors are released from volatile compounds. Decomposition creates methane and
carbon dioxide (CO2). Although incinerating collected landfill gas is considered to be
“highly effective in reducing potentially harmful constituents contained in the gas,” about
25 percent is not recovered, and its release into the atmosphere “has the potential to
contribute to air pollution and to expose people to toxic air contaminants.” Landfill gas
may contain trace quantities of toxic air contaminants such as benzene and possibly
chlorinated hydrocarbons. The contaminants contribute to air pollution, which can cause
short- or long-term health problems, including acute respiratory infections, chronic
bronchitis, pulmonary emphysema, and bronchial asthma.
Testing at the landfill in June 1988 found trace amounts of benzene, but some of
these amounts may have come from vehicle emissions. The testing revealed no
chlorinated hydrocarbons. The EIR found that the proposed expansion of the landfill
could potentially increase toxic air contaminates because more waste will decompose,
composting operations will enlarge, and more diesel trucks and equipment will be used.
It calculated that the expansion could result in an increase of about 13 pounds of reactive
organic gases. The EIR assumed that, as a worst-case scenario, those new emissions
would contain 500 parts per million (by volume) of benzene. Such an increase would
result in an increased cancer risk, estimated to cause an additional 1.2 cancer cases for
every 100 million people exposed. This was considered “well below the significance
threshold of 10 in a million.” The increased cancer risk from additional composting
emissions was also predicted to be “well below the significance threshold of 10 in a
million.” But the health risks from increased diesel-truck emissions was estimated to be
18 additional cancer cases for every million people exposed, which “exceeds the
significance threshold of 10 new cancer cases for every million people exposed.”
The EIR also discussed respirable particulate matter. Particulate matter, or “PM,”
refers to extremely small solid or liquid particles that can be suspended in the
26
atmosphere. (California Unions for Reliable Energy v. Mojave Desert Air Quality
Management Dist. (2009) 178 Cal.App.4th 1225, 1231.) Particulate matter may be
measured in microns (a micron is one one-millionth of a meter, a micrometer). (Id. at
pp. 1231-1232.) Particulate matter made up of particles that are 10 micrometers or less in
diameter (PM-10) is considered an air pollutant. (Ibid.; 40 C.F.R. § 50.6(c) (2014).) PM-
10 “can be further subclassified into fine particles, which are 2.5 micrometers or less in
diameter” (PM-2.5). (California Unions, at p. 1232; 40 C.F.R. §§ 50.7, 50, appen. L
(2014).) The federal Clean Air Act requires the Environmental Protection Agency to
prescribe national ambient air-quality standards. (42 U.S.C. § 7409(a), (b).) Separate
standards for PM-10 and PM-2.5 have been established (40 C.F.R §§ 50.5(a), 50.7), and
areas that fail to meet those standards are designated as nonattainment areas. (42 U.S.C.
§ 7407(d).) Although the EIR here identified national standards for both types of
particulate matter, it did not separately assess the significance of PM-2.5 and PM-10.
Instead, it explained that PM-10 includes PM-2.5, and it analyzed only PM-10,
explaining that all PM-2.5 was also PM-10.
This approach of analyzing PM-10, without separately analyzing PM-2.5, was
consistent with CEQA guidelines prepared in 1999 by the Bay Area Air Quality
Management District (BAAQMD), which regulates air quality in the area and at the
landfill. BAAQMD “is the agency primarily responsible for assuring that national and
State ambient air quality standards are attained and maintained in the San Francisco Bay
Area.” Its responsibilities include adopting and enforcing rules and regulations
concerning air-pollutant sources and monitoring ambient air-quality conditions. Its 1999
CEQA guidelines for preparing EIRs provided threshold significance levels for PM-10,
but not separately for PM-2.5.
The EIR quantified the increased emissions generated by the project as follows:
262 pounds per day of reactive organic gases, coming mostly from composting and air
drying sludge; 242 pounds per day of nitrogen oxides, coming mostly from vehicle traffic
and off-road equipment; and 394 pounds per day of PM-10, coming mostly from fugitive
dust generated by landfill operations. These totals exceeded BAAQMD’s significance
27
criteria of 80 pounds for each category, and the impact was considered significant. The
EIR concluded that, even with mitigation measures implemented to substantially reduce
emissions, it was unlikely the emissions of reactive organic gases, nitrogen oxides, and
PM-10 would be reduced below BAAQMD’s significance threshold, and the project’s
combined emissions thus would be considered “significant and unavoidable.”
In response to public comment about air-quality and other issues (including
greenhouse gas emissions, see post, § II.F.), Redwood submitted a letter dated June 9,
2008, to Marin EHS, with several attachments. Marin EHS certified the EIR the next
day, on June 10.
2. The Trial Court’s Ruling on Air Quality.
The trial court found two deficiencies in the EIR’s discussion of air quality. It first
acknowledged that the final EIR found that emissions of toxic air contaminates could
cause significant health risks but that mitigation measures would reduce the increase of
cancer risk to less-than-significant level. But it concluded that the final EIR was
deficient because it failed to discuss “the increased non-cancer health risks from the
[toxic air contaminates] or from the other air pollutants.” (Original italics.) According to
the trial court, there was “no discussion of the increased impact on non-cancer health
risks from non-carcinogenic [toxic air contaminates] or from the other air pollutants
which EHS found to be significant and unavoidable.”
Second, the trial court found that the final EIR was inadequate because it “fail[ed]
to analyze the formation and impacts of very fine particulate matter having a diameter of
2.5 microns or less” (i.e., PM-2.5). It based this conclusion in part on information
apparently not taken from the administrative record, but instead from the website of the
California Air Resources Board (ARB). According to the trial court, the website revealed
that “in June 2002 the ARB adopted new ambient air quality standards for PM-10 and
PM-2.5, which rules became effective in 2003. Therefore, the different standards for
PM-2.5 were available at the time of [the final EIR] preparation in July 2005.” (Original
italics.) The court concluded that the risk of health impacts from PM-2.5 were different
from PM-10, “otherwise the ARB would not have bothered to establish different air
28
quality thresholds for the two emissions.” The fact that the ARB’s threshold of
significance for PM-2.5 was lower than the threshold for PM-10 “suggest[ed]” it was
potentially more harmful than PM-10. The court concluded it was “reasonable to expect”
Marin EHS to use “the easily available California ARB standards in calculating the
threshold of significance for PM-2.5 emissions,” and that use of those standards was
“probably mandatory.” The court concluded that the error amounted to an abuse of
discretion because Marin EHS “did not use its best efforts to determine if there was
regulatory guidance from another agency that it could use to quantify the health risk from
PM-2.5 emissions.”
3. The EIR’s Treatment of PM-2.5 Was Not an Abuse of Discretion.
We first address the trial court’s ruling on the EIR’s approach to PM-2.5.
Redwood and the Marin County entities argue that the trial court failed to appreciate that
the standards the court cited were for ambient air-quality standards and not thresholds of
significance to be used for EIRs prepared under CEQA. (E.g., Citizens for Responsible
Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th
327, 334 [where increases in air pollutants are below significance criteria, they are
considered to have no significant impact on ambient-air quality].) We agree it was
improper for the trial court to set aside an EIR based on its independent research of air-
quality standards. “[O]ur Supreme Court has cautioned reviewing courts against
performing our own scientific critiques of environmental studies, a task for which we
have neither resources nor scientific expertise.” (Eureka Citizens for Responsible
Government v. City of Eureka (2007) 147 Cal.App.4th 357, 372, citing Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393.)
“Our duty is not to pass on the validity of the conclusions expressed in the EIR, but only
on the sufficiency of the report as an informative document.” (Eureka Citizens, at
p. 372.)
We cannot say that the EIR’s approach in evaluating PM-2.5 was an abuse of
discretion since the EIR relied on BAAQMD guidelines in effect at the time the EIR was
prepared. (Rialto Citizens, supra, 208 Cal.App.4th at p. 933 & fn. 15 [EIR’s analysis of
29
air quality reasonable in light of approach recommended by agency responsible for
attaining state and federal clean-air standards in region].) The federal administrative
decision upon which the landfill opponents rely does not alter our conclusion. (In the
Matter of Louisville Gas and Electric Co. (Aug. 12, 2009, Petn. No. IV-2008-3), before
the Administrator of the U.S. Environmental Protection Agency (EPA).)12 In considering
an objection to the construction of a new coal-fired boiler, the administrator concluded
that it was inappropriate to use PM-10 as a surrogate for PM-2.5 in that case. The
administrator stressed, however, that the decision whether PM-10 is a reasonable
surrogate for PM-2.5 depends on “the facts and circumstances of the specific permit at
issue,” and it provided detailed guidance on how to demonstrate whether PM-10 is a
reasonable surrogate for PM-2.5 in a particular case. It was the landfill opponents’
burden to prove the EIR’s inadequacy (Save Cuyama Valley v. County of Santa Barbara,
supra, 213 Cal.App.4th at p. 1067), and they have failed to do so here.
4. The EIR Adequately Analyzed the Potential Increase in Pollution.
A closer question is whether the EIR adequately analyzed the potential health
effects of increased pollution. The Guidelines specify that an EIR “shall identify and
focus on the significant environmental effects of the proposed project.” (Guidelines,
§ 15126.2, subd. (a).) “Direct and indirect significant effects of the project on the
environment shall be clearly identified and described, giving due consideration to both
the short-term and long-term effects. The discussion should include . . . health . . .
problems caused by the physical changes” to the environment. (Ibid., italics added.) The
Guidelines further direct an EIR to “[d]escribe any significant impacts, including those
which can be mitigated but not reduced to a level of insignificance.” (Guidelines,
§ 15126.2, subd. (b).)
12
We take judicial notice of the order (Evid. Code, §§ 452, subd. (c), 459, subd. (a)),
although we recognize, as Redwood and the Marin County entities point out, that the
decision could not have been relied upon by Marin EHS because it was published a year
after the project was approved.
30
The Fifth District has interpreted Guideline section 15126.2 to mean that an EIR
must correlate identified adverse air-quality impacts to resultant adverse health effects.
(Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th
1184, 1219 (Bakersfield Citizens).) Bakersfield Citizens considered the two EIRs of two
shopping centers. (Id. at p. 1193.) Both EIRs concluded that the shopping centers would
have significant and unavoidable direct adverse impacts on air quality. (Id. at pp. 1194,
1219.) The court found that both EIRs were deficient because “neither EIR
acknowledge[d] the health consequences that necessarily result from the identified
adverse air quality impacts. Buried in the description of some of the various substances
that make up the soup known as ‘air pollution’ are brief references to respiratory
illnesses. However, there is no acknowledgement or analysis of the well-known
connection between reduction in air quality and increases in specific respiratory
conditions and illnesses. After reading the EIRs, the public would have no idea of the
health consequences that result when more pollutants are added to a nonattainment basin.
On remand, the health impacts resulting from the adverse air quality impacts must be
identified and analyzed in the new EIR’s.” (Id. at p. 1220.)13
Redwood and the Marin County entities point out that the trial court concluded
that the final EIR adequately addressed increased cancer risks from toxic air
contaminants and only inadequately addressed “non-cancer” health risks. As to
noncancer health risks, they argue that the EIR sufficiently addressed them by pointing to
the portions of the EIR explaining the hazard index used to evaluate threshold levels of
noncancer health risks. The EIR explains the hazard index “is the ratio of the predicted
exposure concentration to a threshold level, as established by [California’s Office of
13
No party petitioned for review in Bakersfield Citizens, supra, 124 Cal.App.4th 1184.
The Fifth District recently relied on the case in setting aside an EIR for a proposed
master-planned community for persons age 55 or older in north-central Fresno County,
holding that a “simple statement in an EIR that the significant adverse air quality impacts
will have an adverse impact on human health fails to comply with” CEQA standards.
(Sierra Club v. County of Fresno (2014) 226 Cal.App.4th 704, 745.) The Supreme Court
has granted review in Sierra Club to address “issues concerning the standard and scope of
judicial review under [CEQA].” (Review granted Oct. 1, 2014, S219783.)
31
Environmental Health Hazard Assessment], that could cause adverse health effects.”
The landfill opponents do not directly counter the argument that the EIR sufficiently
addressed noncancer health effects in addition to the cancer risk of toxic air
contaminants. (People v. Bouzas (1991) 53 Cal.3d 467, 480 [ignoring point in
respondent’s brief viewed as apparent concession].) We conclude that the EIR’s analysis
of potential noncancer health impacts from toxic air contaminants was acceptable since
the analytical approach was consistent with BAAQMD’s guidelines. (Rialto Citizens,
supra, 208 Cal.App.4th at p. 933.)
But the broader question remains whether it was sufficient for the EIR to state that
levels of reactive organic gases, nitrogen oxides, and PM-10 would likely be above
BAAQMD’s significance threshold of 80 pounds per day, a significant-and-unavoidable
effect, without further analysis of the potential health impacts of this increased pollution.
The landfill opponents do not dispute that the EIR’s discussion of air quality complied
with BAAQMD guidelines, and they fail to propose any specific method for an analysis
that they would consider to be sufficient. They simply argue that the EIR is deficient
under Bakersfield Citizens, supra, 124 Cal.App.4th 1184. Redwood and the Marin
County entities argue that Bakersfield Citizens is distinguishable because the EIR’s
discussion was consistent with BAAQMD’s guidelines, and BAAQMD did not challenge
the method used. Moreover, the pollution-control district in Bakersfield Citizens
expressed concerns that emissions from the proposed project would make it more
difficult to attain mandated air-quality standards (id. at p. 1216) and had uncertain
authority over the project if and when it were to be completed. In contrast, BAAQMD
expressed no similar concerns here, and it will continue to have regulatory control
authority over the landfill. The landfill opponents counter that BAAQMD’s guidelines
should not be controlling because they were prepared in 1999, years before Bakersfield
Citizens was decided in 2004.
After all is said and done, we believe Redwood and the Marin County entities
have the better argument. Bakersfield Citizens, supra, 124 Cal.App.4th 1184 did not
itself offer any specific guidance on how to evaluate air quality, and, unlike BAAQMD,
32
this court lacks the scientific expertise to provide it. We conclude that an EIR’s
discussion of potential impacts of a project on air quality that is consistent with then-
applicable guidelines of a regional air-quality board should normally be sufficient to
satisfy CEQA’s disclosure requirements, and in this case it was.
This case also stands in stark contrast with Berkeley Keep Jets Over the Bay
Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, upon which the landfill
opponents rely. Relying on a speciation profile published by the California Air
Resources Board, the draft EIR in that case recognized that a planned expansion of an
airport by the Oakland Port Authority (the Port) would increase toxic air contaminants
but stated that the environmental effects of the increase were unknown because there was
“no approved, standardized protocol” for assessing the risks, and there were no
significance criteria. (Id. at p. 1364.) After the draft EIR was circulated, an air-quality
expert criticized the speciation profile as being outdated and explained that a newer
profile was currently being used. (Id. at p. 1365.) The Port then published a response
that wrongly suggested that the resources board did not recommend using the newer
profile. (Id. at pp. 1351, 1365-1366.) The final EIR stated that the public-health impact
of toxic air contaminants was unknown, despite the fact that “[v]oluminous documentary
evidence was submitted to the Port supporting the assertion that an approved and
standardized protocol did exist which would enable the Port to conduct a health risk
assessment.” (Id. at pp. 1367-1368.) Division Two of this court concluded that the Port
had not made a sufficient effort to collect data or make further inquiries of environmental
or regulatory agencies having expertise on the subject. (Id. at p. 1370; see also § 21080.3
[before deciding whether EIR is required, lead agency “shall consult with all responsible
agencies”].) “The fact that a single methodology does not currently exist that would
provide the Port with a precise, or ‘universally accepted,’ quantification of the human
health risk from [toxic air contaminant] exposure does not excuse the preparation of any
health risk assessment—it requires the Port to do the necessary work to educate itself
about the different methodologies that are available.” (Berkeley Jets, at p. 1370, original
italics.) Here, by contrast, Marin EHS did just that by relying on BAAQMD’s CEQA
33
guidelines. And while the EIR in Berkeley Jets “failed to acknowledge the opinions of
responsible agencies and experts who cast substantial doubt on the adequacy of the EIR’s
analysis of” toxic-air contamination (id. at p. 1371), there is no such consensus of experts
here that the EIR came up short.
We conclude that the EIR’s discussion of the potential increase in air pollution
satisfied CEQA.
F. The EIR Sufficiently Analyzed Greenhouse Gas Emissions.
1. Background.
Finally, we address the EIR’s analysis of greenhouse gas (GHG) emissions.
Redwood’s final EIR responses to comments amendment dated March 2008 included a
12-page section titled “Greenhouse Gas Emissions and Global Climate Change.” The
amendment pointed out that since the final EIR was published in July 2005, the
Legislature had passed the California Global Warming Act establishing the state’s goal of
reducing greenhouse gas emissions to 1990 levels by 2020. It also pointed out that in
2006, the Marin County Board of Supervisors adopted the Marin County Greenhouse Gas
Reduction Plan, which sets a target of reducing GHG emissions countywide to 15 percent
below 1990 levels by 2020. Finally, it remarked that “municipal solid waste landfills are
a major source of GHGs, predominantly from fugitive landfill gas emissions, but also
from emissions from fossil-fuel powered equipment and vehicles.”
After describing the task of measuring the landfill gas generated at the Redwood
Landfill as “difficult at best,” the response recognized several possible models for doing
so. The EIR used the “Landfill Gas Emissions Model” (or LandGEM), a software
application with a Microsoft Excel interface that is used by the EPA and also is
recommended as “ ‘good practice’ ” by the Intergovernmental Panel on Climate Change.
34
The model uses different variables to calculate gas generation.14 The values of the
variables depend on whether the landfill is arid, conventional, or wet. To estimate
emissions, LandGEM can use either default values for these different types of landfills or
site-specific data. Here, the default values for a conventional landfill were used. Using
that model, the response included a five-page appendix calculating GHG outputs at the
landfill for its current site-life estimates.
Redwood presently has a system to collect landfill gas. It monitors the amount
and composition of the gas collected and reports the results to BAAQMD as a condition
of its permit. The amount of gas captured through the system approximately doubled
between 2002 and 2006. Some methane nonetheless escapes into the atmosphere as so-
called “fugitive methane emissions.” These emissions are made up of gases that are not
captured by the collection system or are captured but not destroyed by the landfill’s flare
system.
Mitigation measure No. 3.2.5c proposed that Redwood apply to BAAQMD for the
authority to construct power-generation engines to be fueled by landfill gas capable of
producing four to five megawatts of power within two years of the California Integrated
Waste Management Board concurring in the solid-waste facilities permit. The engines
would replace the landfill’s flare system, “increase the overall capacity available to treat
landfill gas, and w[ould] also result in the beneficial use of some portion of the landfill
gas generated. Operation of the landfill-gas-powered generators w[ould] make the
project consistent with Policy 4.2 of the Marin Countywide Plan Community
Development element . . . , which calls for exploration and implementation, where
possible, of opportunities for cost-effective energy savings that are compatible with other
14
The model “uses as inputs the amount of waste placed in the landfill annually; a factor
(Lo) for the potential methane generation capacity, which depends on the type and
composition of waste placed in the landfill; and a factor (k) for the methane generation
rate, which determines the rate of methane generation for the mass of waste in the
landfill, and which is related to environmental conditions within the landfill—primarily
the amount of moisture. The output of LandGEM is the total predicted annual generation
of gases, including CO2, methane, and [nonmethane organic compounds].” (Italics
omitted.)
35
countywide and community goals.” The gas-fired engines were considered as substitutes
for electricity generated from other sources. “From this viewpoint, power generation at
Redwood Landfill under the Mitigated Alternative will offset GHG emissions associated
with power production elsewhere.”
Considering all the GHG emissions under the existing permit as compared to the
mitigated alternative, the alternative was projected to result in a decrease of nearly
2.2 million metric tons of carbon dioxide equivalent, a drop of about 33 percent as
compared with the existing permit. This, of course, would reduce the potential impact on
global warming. Still, under the mitigated alternative, the landfill would emit about twice
the amount of GHGs in 2020 as it did in 1990. In order to reduce total emissions to at
least 15 percent below 1990 levels, two mitigation measures were added. The first,
No. 3.2.5f, requires Redwood to develop a GHG reduction plan, and the second,
No. 3.2.5g, requires Redwood to continue to operate the landfill’s gas-collection system
following closure of the landfill and as long as the landfill continues to produce landfill
gas.
The final EIR here was certified in June 2008, and the revised solid-waste facility
permit was issued in December 2008. More than a year later, on March 18, 2010,
Guidelines section 15064.4 became effective. This section provides that in determining
the significance of impacts from GHG emissions, a lead agency should consider, among
other factors, (1) the extent to which the project may increase or reduce GHG emissions
as compared to the existing environmental setting, (2) whether the project emissions
exceed a threshold of significance that the lead agency determines applies to the project,
and (3) the extent to which the project complies with regulations or requirements adopted
to implement a statewide, regional, or local plan for the reduction or mitigation of GHG
emissions. (Guidelines, § 15064.4, subd. (b).)
In response to the landfill opponents’ challenges to the EIR’s analysis of GHG
emissions, the trial court upheld parts of the EIR and struck down others. Both sides
36
appealed. We address the issues in the order in which they were addressed in the trial
court’s decision.15
2. The EIR Sufficiently Analyzed the Project’s Cumulative Effects on
Greenhouse Gases.
Guidelines section 15130, subdivision (a) requires an EIR to “discuss cumulative
impacts of a project when the project’s incremental effect is cumulatively
considerable . . . .” “ ‘Cumulatively considerable’ means that the incremental effects of
an individual project 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).) This situation arises where a project has multiple
possible environmental effects that are limited when considered individually but
significant when considered cumulatively. (Ibid.) In such a situation, an EIR’s
discussion of cumulative impacts must include either (1) a “list of past, present, and
probable future projects producing related or cumulative impacts,” or (2) 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.”
(Guidelines, § 15130, subd. (b)(1)(A).)
The trial court found the EIR deficient for failing to analyze whether the impact
from GHGs was “ ‘cumulatively considerable.’ ” The trial court acknowledged that
Marin EHS’s responses to comments estimated GHG emissions over the life of the
project, analyzed the estimated reduction of emissions, and adopted mitigation measures
to reduce emissions. It faulted the EIR, however, for not using one of the two methods
(list of projects or summary of projections) identified in Guidelines section 15130,
subdivision (b). On appeal, Redwood and the Marin County entities contend that the
court’s assessment was “clearly wrong,” because the EIR “plainly relied on a summary of
15
The parties devote several pages to whether, under Rialto Citizens, supra,
208 Cal.App.4th 899, it was necessary to analyze GHGs in the first place, an argument
that does not appear connected to any particular challenge to the EIR or necessary to our
resolution to the issues raised. The landfill opponents filed a request for judicial notice of
a document it argued was relevant to the issue. We now deny the request as moot.
37
projections in the Countywide Plan.” Having reviewed the projections in the EIR and
their relation to federal, state, and local guidelines, we agree that the EIR sufficiently
analyzed the cumulative effects of the project, and we reject the landfill opponents’ three
arguments to the contrary.
The landfill opponents first argue that the EIR failed to summarize projections
from previously approved planning documents. As we understand their argument,
however, they contend that an analysis of cumulative effects should have been global in
scale. Because “the scope of the cumulative analysis should be global,” they argue, “the
list of related projects in only Marin County does not comply with CEQA.” They also
rely on the statement in City of Long Beach v. Los Angeles Unified School Dist. (2009)
176 Cal.App.4th 889, 907 that “[a]n EIR’s cumulative impact analysis should include all
sources of related impacts, not simply similar sources or projects.” We reject this
argument because it would be entirely unrealistic to require an EIR’s analysis of a
regional landfill to identify, let alone analyze, all sources of GHGs, even if limited only
to other landfills. We likewise reject the landfill opponents’ argument that “the EIR fails
to summarize related projects’ expected environmental effects.” They argue that “[a]
summary of related projects’ global warming effects would have been reasonable to
include in the EIR, especially since the EIR referred to the [Intergovernmental Panel on
Climate Change], EPA, and California Energy Commission documents and stated that
landfills like the Redwood Landfill are significant greenhouse gas sources.” Again,
CEQA does not mandate that the EIR here analyze all methane-producing landfills, as the
landfill opponents apparently suggest.
Finally, we reject the landfill opponents’ argument that the EIR failed to analyze
the cumulative impacts of “related projects” on the effects of global warming. We share
their concerns about the grave impacts that global warming is expected to bring, both
globally and in California. But it does not follow that the EIR here was required to
analyze any and all projects that contribute to global warming. And, contrary to the
landfill opponents’ argument, the EIR sufficiently acknowledged the severity of global
warming.
38
3. Figures Used in the LandGEM Model Were Not an Abuse of
Discretion.
As explained above, the EIR used the LandGEM model to estimate landfill-gas
emissions, using default values based on the determination that Redwood Landfill is a
conventional landfill. The landfill opponents argue that substantial evidence does not
support this method, both because Redwood Landfill is a wet landfill (meaning it
produces more landfill gas at a faster rate) and because default values were used instead
of site-specific data. We agree with the trial court that substantial evidence supports the
method that was used.
As we have stressed, it is not the role of a reviewing court to substitute its
judgment for that of the agency when reviewing the record for substantial evidence to
support the methodology used for studying a potential impact. (North Coast Rivers
Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614,
642-643.) “ ‘The fact that different inferences or conclusions could be drawn, or that
different methods of gathering and compiling statistics could have been employed, is not
determinative in a substantial evidence review.’ [Citation.] The issue is not whether
other methods might have been used, but whether the agency relied on evidence that a
‘ “reasonable mind might accept as sufficient to support the conclusion reached” ’ in the
EIR.” (Id. at p. 642.)
According to the landfill opponents, there was no evidence in the EIR to support
its use of default values for a conventional landfill, and it was not until Redwood
39
submitted a June 9, 2008 letter to Marin EHS in an attempt to “shore up the EIR” that it
presented evidence to support the EIR’s conclusions.16
Although no party raises this issue, we note that the landfill opponents do not
specifically object to the use of the LandGEM model, only to the values selected. The
administrative record contains a user’s guide to the LandGEM model, which could have
been used by the landfill opponents to calculate different projections using values they
believed were more accurate. Instead, it directs this court to a single table in a section
titled “Landfill Gas Capture and Destruction” and complains that one column shows that
annual landfill-gas flow increased by more than 100 percent between 2002 and 2006,
whereas LandGEM modeling of methane generated over the same period increased by
only about 14 percent—without providing any context for these figures or explaining
how they affect the other four columns in the table, let alone the other detailed appendix
generated using LandGEM.
In any event, sufficient evidence supports the determination that Redwood
Landfill may be considered conventional for purposes of LandGEM. The LandGEM
user’s guide describes wet landfills as “bioreactor landfills where leachate and other
liquids are added to accelerate waste decomposition.” But the record here shows that
leachate is pumped out of Redwood Landfill. Although some liquid is then sprayed on
the landfill, this is for purposes of dust control, and not to accelerate waste
16
The landfill opponents characterize this letter and its attachments as improper “post-
EIR record packing.” But the material was part of the administrative record before the
EIR was certified, even if only briefly. (§ 21167.6, subd. (e)(6) [all written comments
submitted in connection with project part of administrative record]; cf. CBE, supra,
184 Cal.App.4th at p. 88 [improper to rely on undisclosed data from oil refinery that was
submitted after EIR certification].) Contrary to the landfill opponents’ argument, this is
not comparable to situations in which potential significant environmental impacts are
disclosed late in the process and left unanalyzed. (E.g., Vineyard Area Citizens, supra,
40 Cal.4th at pp. 441-442 [final EIR contained inconsistent gross-demand figures for
water and failed to include or describe relevant demand figures].) Here, Redwood was
responding to issues already raised during environmental review. And, contrary to
assertions made by counsel for No Wetlands at oral argument, Vineyard Area Residents
permits an EIR to reference and incorporate previously prepared analyses. (Id. at
pp. 442-443.)
40
decomposition. The landfill opponents failed to demonstrate that Redwood Landfill
should be considered “wet” for purposes of LandGEM merely by pointing to some
evidence that might support such a finding and referencing guidelines for analyzing site-
specific data. (Save Cuyama Valley v. County of Santa Barbara, supra, 213 Cal.App.4th
at pp. 1066-1067 [reviewing court accords “considerable deference” to EIR’s
determinations, presumes them correct, and resolves all reasonable doubt in their favor].)
4. The EIR’s Analysis of a Proposed Onsite Power Facility Was
Adequate.
We also reject the landfill opponents’ challenge to the plan to offset an increase in
GHGs with the reduction of GHGs resulting from using engines fired by landfill gas to
substitute for electricity generated from other sources. They first claim that the plan to
offset the emissions “is nothing more than pure speculation.” “ ‘As with all substantial
evidence challenges, an appellant challenging an EIR for insufficient evidence must lay
out the evidence favorable to the other side and show why it is lacking. Failure to do so
is fatal. A reviewing court will not independently review the record to make up for
appellant’s failure to carry his burden.’ ” (Tracy First v. City of Tracy (2009)
177 Cal.App.4th 912, 934-935.) The landfill opponents do not meet this burden. The
plan to build power-generation engines to be fueled by landfill gas was described in detail
as a way to mitigate the increase of GHG emissions. The landfill opponents may not
simply claim that there was no evidence to support the plan or contend that support for it
was found somewhere in Redwood’s “improper” June 9, 2008 letter, without explaining
why the EIR’s plan was lacking. Contrary to the landfill opponents’ argument, the plan is
an appropriate way to offset an increase in GHG emissions. (E.g., Guidelines, § 15126.4,
subd. (c)(3) [lead agencies may consider feasible means of mitigating greenhouse-gas
emissions, including off-site measures resulting in offsets that are not otherwise
required].)
We also disagree with the landfill opponents’ argument that the EIR’s plan to
offset GHGs relied on an “impermissible future baseline.” The Guidelines provide that
an EIR “must include a description of the physical environmental conditions in the
41
vicinity of the project, as they exist at the time the notice of preparation is published . . . ,
from both a local and regional perspective. This environmental setting will normally
constitute the baseline physical conditions by which a lead agency determines whether an
impact is significant. The description of the environmental setting shall be no longer than
is necessary to an understanding of the significant effects of the proposed project and its
alternatives.” (Guidelines, § 15125, subd. (a), italics added.) In fact, the EIR here
included a detailed description of the physical environmental conditions in the vicinity of
the project. Consistent with the Guidelines and established precedent, the EIR used as its
baseline “the design, operations, and environmental controls described in the 1995 Solid
Waste Facilities Permit and other current permits, based on the 1994 [final ]EIR, as well
as other applicable permits that have undergone separate environmental review.”
(Communities for a Better Environment v. South Coast Air Quality Management Dist.
(2010) 48 Cal.4th 310, 326, fn. 11; Fairview Neighbors v. County of Ventura (1999)
70 Cal.App.4th 238, 242-243 [where EIR seeks continuation of operations previously
reviewed under CEQA, appropriate to use previously approved activities as baseline].)
In a somewhat confusing argument, the landfill opponents contend that
“[e]missions reductions of CO2 from some undefined, unidentified power plants in a
future hypothetical scenario are not legally part of the environmental baseline.” This
argument apparently contends that the EIR improperly included off-site power plants as
part of its baseline. We are not persuaded. The EIR specifically stated that the landfill
would begin to generate its own power using landfill gas so that it would not have to rely
on power from offsite sources. Thus, the EIR did not use “hypothetical emission
reductions” as part of its baseline. We agree with the trial court that the EIR was not
deficient in this regard.
The trial court did fault the EIR for failing to estimate the CO2 emissions from the
proposed onsite generation of electricity. According to the EIR: “Inventories of GHG
emissions consider CO2 from decomposition of organic material to be ‘biogenic’—a
component of the natural cycling of carbon in the biosphere and the atmosphere—and
therefore these emissions are not ‘counted,’ ” and the report cited (but did not include)
42
reference materials supporting this approach. Appellants explain on appeal: “In other
words, CO2 emissions would occur irrespective of whether methane combustion occurs.
Accordingly, [landfill gas] derived emissions of CO2—including CO2 emissions from a
[landfill gas to energy facility]—are considered part of the carbon cycle by all major
GHG emission inventory and reporting systems.” In the trial court, appellants explained
the EIR did not separately calculate the emissions of CO2 from the proposed facility
because authoritative sources did not count natural production of CO2 as a GHG
emission. The trial court sided with the landfill opponents, concluding that “Defendants
[did] not specifically cite to the location in the referenced studies or reports that support
[the EIR’s] methodology.”17
The landfill opponents contend that the EIR “fails as an informational document”
because it did not discuss “CO2 emissions from combusting methane in the Landfill Gas
to Energy system.” They argue generally that omitting CO2 emissions from the EIR
“denied the public the right to informed meaningful participation and denied [Marin
EHS] the ability to engage in informed decision-making.” But they do not specifically
address whether the EIR was required to discuss the CO2 emissions from the new onsite
energy system in light of the EIR’s approach not to count these emissions because they
would displace CO2 that would be produced naturally through decomposition processes.
We acknowledge the EIR contains a small universe of evidence to support this
approach. Redwood and Marin County note that the EIR “relied upon, and cited to,
multiple technical reports asserting that biogenic CO2 is not counted in [greenhouse gas]
emission inventories.” In their opening brief, however, they specify only two of those
reports, which are apparently not contained in the administrative record. Finally in their
17
The trial court presumably meant that defendants did not adequately cite to the
authorities in the EIR, as opposed to in their opposition brief in the trial court. Redwood
and the Marin County entities posit that although the trial court did not cite authority for
its ruling, it may have relied on Guidelines section 15148, which provides that any
engineering-project reports and scientific documents relied on should be cited in the EIR
but not included, and that the EIR “shall cite all documents used in its preparation
including, where possible, the page and section number of any technical reports which
were used as the basis for any statements in the EIR.”
43
reply brief, they direct this court to a copy of one of the sources, a December 2006 staff
report from the California Energy Commission titled “Inventory of California
Greenhouse Gas Emissions and Sinks: 1990 to 2004.”18 According to the report, “CO2
and nitrous oxide emissions to the atmosphere occur when municipal solid waste . . . is
combusted to make electricity. A portion of the waste stream is biogenic, and these CO2
emissions are not counted because the carbon is recycled during the growth period of the
biogenic materials.” They also point to a memorandum dated June 6, 2008, from SCS
Engineers, which states: “Carbon dioxide emissions from flaring [landfill gases] or from
[internal combustion] engines are considered biogenic in nature and are commonly not
counted in GHG inventories, including those at the state and federal level. However, the
EIR for this project conservatively included these emissions from the flaring of [landfill
gas]. The [final EIR] did not explicitly list GHG emissions from the proposed [internal
combustion] engines because emissions essentially do not change from the flaring of
[landfill gas]. As such, the level of detail of analysis of potential [greenhouse gas]
emissions from the [internal combustion] engines is appropriate. The [final EIR] did
disclose that [internal combustion] engines are slightly less efficient than the flares in
converting methane to carbon dioxide, so they are likely to have slightly greater methane
emissions and slightly lower carbon dioxide emissions.”19 While this discussion may not
have been exhaustive, we conclude there is sufficient evidence to support the EIR’s
methodology as correct, especially since there is no indication it was incorrect.
The landfill opponents argue this court should not rely on the June 6, 2008
memorandum on the grounds that it is conclusory and was submitted late in the process.
But, again, they cite no evidence suggesting the inaccuracy of the EIR’s premise that CO2
emissions from the new onsite energy system would largely displace CO2 that would be
18
This court took judicial notice of this and other documents on July 24, 2013, without a
determination of relevance.
19
Appellants also cite to two documents that appear to have nothing to do with
calculating CO2 emissions: an environmental engineer’s résumé, along with a response
comment that touts the benefits of onsite energy facilities but does not specifically
address measuring CO2 emissions.
44
produced naturally through decomposition processes. Given that we presume the EIR to
be adequate and that it is not our role to substitute our judgment for that of the agency,
we conclude that the EIR was sufficient as an informational document in this regard.
III.
DISPOSITION
The trial court’s granting the petition for a writ of mandate is affirmed in part and
reversed in part. The matter is remanded, and the trial court is instructed to enter,
consistent with this opinion, a new and different order denying the petition for writ of
mandate. Appellants and real party in interest shall recover their costs incurred on appeal
jointly and severally from respondents.
_________________________
Humes, J.*
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Rivera, J.
* Presiding Justice of the Court of Appeal, First Appellate District, Division One,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
45