Tsakopoulos Investments, LLC v. County of Sacramento ( 2023 )

Filed 9/7/23
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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TSAKOPOULOS INVESTMENTS, LLC, C095631
Plaintiff and Appellant, (Super. Ct. No.
34-2020-80003341-CU-WM-
v. GDS)
COUNTY OF SACRAMENTO et al.,
Defendants and Respondents;
MATHER SOUTH, LLC, et al.,
Real Parties in Interest and
Respondents.
APPEAL from a judgment of the Superior Court of Sacramento County, Laurie M.
Earl, Judge. Affirmed.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is
certified for publication with the exception of parts II and III of the Discussion.
1
Jeffer Mangels Butler & Mitchell, Kerry Shapiro, Matthew David Hinks and
Seena M. Samimi for Plaintiff and Appellant.
Lisa A. Travis, County Counsel, June R. Powells-Mays, Deputy County Counsel;
Monchamp Meldrum, Amanda Jean Monchamp and Joanna Meldrum for Defendants and
Respondents.
Monchamp Meldrum, Amanda Jean Monchamp and Joanna Meldrum for Real
Parties in Interest and Respondents.
Plaintiff Tsakopoulos Investments, LLC (Tsakopoulos) filed a petition for writ of
mandate and a complaint for declaratory and injunctive relief (petition) against
defendants the County of Sacramento (County) and the Sacramento County Office of
Economic Development and Marketing, challenging the County’s approval of a project
known as the Mather South Community Master Plan (the project) under the California
Environmental Quality Act (CEQA; Pub. Resources Code, 1 § 21000 et seq.). The trial
court denied the petition and entered judgment in favor of defendants. Tsakopoulos
appeals.
Tsakopoulos asserts we should reverse the judgment because the final
environmental impact report (final report) is deficient in three respects: (1) the climate
change analysis was based on a methodology that our Supreme Court in Center for
Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204 (Center for
Biological Diversity) and the Fourth District Court of Appeal in Golden Door Properties,
LLC v. County of San Diego (2018) 27 Cal.App.5th 892 (Golden Door Properties)
previously rejected as unsupported by substantial evidence; (2) the County “failed to
assess the impacts from construction-related greenhouse gas emissions” in its climate
1 All further section references are to the Public Resources Code unless otherwise
specified.
2
change analysis; and (3) the County “failed to analyze the human health impacts
associated with the” project’s emissions from criteria pollutants. 2 (Boldface omitted.)
In the published portion of the Discussion, we explain why the County’s climate
change analysis was not previously rejected by our Supreme Court or the Fourth District
Court of Appeal for lack of substantial evidence. In the unpublished portion of the
Discussion, we find Tsakopoulos has presented no meritorious contentions to challenge
the County’s construction-related and human health impacts analyses. We thus affirm.
FACTUAL AND PROCEDURAL BACKGROUND
For the reader’s ease, we provide a summary of the general factual and procedural
background here and include the pertinent facts as to each issue in the applicable portion
of the Discussion.
The project site consists of approximately 848 acres and is located in the County.
The project “is one of four major planning applications currently in process for future
urban growth areas located along the Jackson Road corridor, which are collectively
referred to as the Jackson Highway Master Plans.” If built, the project “would result in
up to 3,522 residential dwelling units of various densities,” “a 28-acre environmental
education campus including 200 multi-family dwelling units, a 21-acre research and
development park, two elementary schools, a 6-acre community center, 21 acres of
commercial-retail with up to 225,000 square feet . . . of retail space, 44 acres of
parkland,” “and 157 acres of open space areas.” The project requires a host of approvals
to permit the project’s physical development, including several general plan amendments,
2 “Criteria pollutant” is defined by federal regulations as “a pollutant for which the
Administrator [of the United States Environmental Protection Agency] has promulgated a
national ambient air quality standard pursuant to 42 U.S.C. 7409 (i.e., ozone, lead, sulfur
dioxide, particulate matter, carbon monoxide, nitrogen dioxide).” (40 C.F.R.
§ 52.31(b)(4).)
3
a special plan amendment, a zoning ordinance amendment, and adoption of a
development agreement.
The County is the lead agency for the project and its Office of Economic
Development and Marketing owns the property on which the project will be developed.
Real party in interest Mather South, LLC, is the project applicant and holds the rights to
develop the project pursuant to a purchase and sale agreement with the County.
Mather South, LLC, filed the project application in 2013. The County released the
notice of preparation of an environmental impact report in June 2014, and revised the
notice in January 2017 due to substantial changes to the project’s land use plan. The
draft environmental impact report was released on January 8, 2019, and, after several
public hearings, the County published the final report for the project on January 17, 2020.
Following a public hearing on January 28, 2020, the County certified the final report and
approved the project. The County also adopted CEQA findings of fact, a statement of
overriding considerations, and a mitigation monitoring and reporting program.
Tsakopoulos filed the petition challenging the County’s certification of the final
report and approval of the project. Tsakopoulos asserted several violations of CEQA, all
of which the trial court determined were unfounded. Tsakopoulos appeals.
DISCUSSION 3
“ ‘The foremost principle under CEQA is that the Legislature intended the act “to
be interpreted in such manner as to afford the fullest possible protection to the
environment within the reasonable scope of the statutory language.” ’ [Citations.] ‘With
narrow exceptions, CEQA requires an [environmental impact report] whenever a public
agency proposes to approve or to carry out a project that may have a significant effect on
3 Defendants and real parties in interest filed a joint respondent’s brief in this
appeal. When we refer to the County’s arguments in this opinion, we refer to the
arguments made in the joint brief.
4
the environment.’ ” (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511 (Friant
Ranch).) A project will have a significant effect on the environment if it will cause “a
substantial, or potentially substantial, adverse change in” “the physical conditions [that]
exist within the area [that] will be affected by [the] project, including land, air, water,
minerals, flora, fauna, noise, [and] objects of historic or aesthetic significance.”
(Guidelines 4; §§ 21060.5 [defining “environment”], 21068 [defining “significant effect
on the environment”].)
“The basic purpose of an [environmental impact report] is to ‘provide public
agencies and the public in general with detailed information about the effect [that] a
proposed project is likely to have on the environment; to list ways in which the
significant effects of such a project might be minimized; and to indicate alternatives to
such a project.’ [Citations.] ‘Because the [environmental impact report] must be
certified or rejected by public officials, it is a document of accountability. If CEQA is
scrupulously followed, the public will know the basis on which its responsible officials
either approve or reject environmentally significant action, and the public, being duly
informed, can respond accordingly to action with which it disagrees.’ [Citation.] The
[environmental impact report] ‘protects not only the environment but also informed self-
government.’ [Citation.]
4 References to the “Guidelines” are to the regulations for the implementation of
CEQA codified in title 14, section 15000 et seq. of the California Code of Regulations,
which have been developed by the Office of Planning and Research and adopted by the
Secretary of the Natural Resources Agency. (§ 21083.) The Guidelines are statutorily
mandated to provide “criteria for public agencies to follow in determining whether or not
a proposed project may have a ‘significant effect on the environment.’ ” (§ 21083,
subd. (b).) “We give the Guidelines great weight in interpreting CEQA, except where
they are clearly unauthorized or erroneous.” (Center for Biological Diversity, supra,62 Cal.4th at p. 217, fn. 4.)
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“The standard of review in a CEQA case, as provided in sections 21168.5 and
21005, is abuse of discretion. Section 21168.5 states in part: ‘In any action or
proceeding . . . to attack, review, set aside, void or annul a determination, finding, or
decision of a public agency on the grounds of noncompliance with this division, the
inquiry shall extend only to whether there was a prejudicial abuse of discretion.’
[Citation.] Our [Supreme Court’s] decisions have thus articulated a procedural
issues/factual issues dichotomy. ‘[A]n agency may abuse its discretion under CEQA
either by failing to proceed in the manner CEQA provides or by reaching factual
conclusions unsupported by substantial evidence. [Citation.] Judicial review of these
two types of error differs significantly: While we determine de novo whether the agency
has employed the correct procedures, “scrupulously enforc[ing] all legislatively mandated
CEQA requirements” [citation], we accord greater deference to the agency’s substantive
factual conclusions. In reviewing for substantial evidence, the reviewing court “may not
set aside an agency’s approval of an [environmental impact report] on the ground that an
opposite conclusion would have been equally or more reasonable,” for, on factual
questions, our task “is not to weigh conflicting evidence and determine who has the better
argument.” ’ ” (Friant Ranch, supra, 6 Cal.5th at pp. 511-512, fn. omitted.)
“[W]hether an agency has followed proper procedures is not always . . . clear.
This is especially so when the issue is whether an [environmental impact report’s]
discussion of environmental impacts is adequate, that is, whether the discussion
sufficiently performs the function of facilitating ‘informed agency decisionmaking and
informed public participation.’ ” (Friant Ranch, supra, 6 Cal.5th at p. 513.) When we
assess a claim of inadequate discussion, “[t]he inquiry presents a mixed question of law
and fact. As such, it is generally subject to independent review. However, underlying
factual determinations—including, for example, an agency’s decision as to which
methodologies to employ for analyzing an environmental effect—may warrant deference.
[Citations.] Thus, to the extent a mixed question requires a determination whether
6
statutory criteria were satisfied, de novo review is appropriate; but to the extent factual
questions predominate, a more deferential standard is warranted.” (Id. at p. 516.)
I
The Methodology Used To Develop The Climate Change Significance Thresholds
Has Not Been Rejected For Lack Of Substantial Evidence
Tsakopoulos challenges the methodology underlying the greenhouse gas
thresholds of significance adopted by the County. A decision to use a particular
methodology and reject another is reviewed for substantial evidence. (Friant Ranch,
supra, 6 Cal.5th at p. 514.) Tsakopoulos asserts the County’s climate change analysis
lacks substantial evidence because the County employed a methodology previously
rejected by our Supreme Court in Center for Biological Diversity and the Fourth District
Court of Appeal in Golden Door Properties. We disagree.
We initially set out the pertinent factual background regarding the statewide
greenhouse gas reduction targets and discuss Guidelines section 15064.4, which pertains
to determining the significance of impacts from greenhouse gas emissions. We next set
forth the holdings and analyses from the two cases that Tsakopoulos relies upon and
summarize the information in the record pertaining to the County’s methodology.
Finally, we conclude the County did not use a methodology that was previously rejected
for lack of substantial evidence.
A
Statewide Greenhouse Gas Reduction Targets
“In June 2005, Governor Schwarzenegger signed Executive Order No. S-3-05”
(2005 Executive Order), “which set overall greenhouse gas emissions reduction targets
for California. [Citation.] The [2005] Executive Order established three general
benchmarks: (1) reduce emissions to 2000 levels by 2010; (2) reduce emissions to 1990
levels by 2020; and (3) reduce emissions to 80 percent below 1990 levels by 2050. These
targets were based on a scientific consensus that climate change was largely caused by
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human activity resulting in elevated levels of carbon dioxide and other heat-trapping
gases in the atmosphere and that drastic reductions in greenhouse gas emissions were
required to stabilize the climate.” (Cleveland National Forest Foundation v. San Diego
Assn. of Governments (2017) 3 Cal.5th 497, 504.)
“In 2006, shortly after the [2005] Executive Order was issued, the Legislature
enacted the California Global Warming Solutions Act of 2006 (Stats. 2006, ch. 488,
[§ 1,] p. 3419, adding Health & Saf. Code, § 38500 et seq.), commonly known as
Assembly Bill No. 32 (2005-2006 Reg. Sess.)” (Assembly Bill 32). (Cleveland National
Forest Foundation v. San Diego Assn. of Governments, supra, 3 Cal.5th at p. 505.) In
Assembly Bill 32, “our Legislature emphatically established as state policy the
achievement of a substantial reduction in the emission of gases contributing to global
warming. [Citations.] More specifically, Assembly Bill 32 calls for reduction of such
emissions to 1990 levels by the year 2020. [Citation.] The law designates the State Air
Resources Board (the Air Board) as the state agency charged with regulating greenhouse
gas emissions [citation] and calls for the Air Board to coordinate with other state agencies
to implement the state’s reduction goal [citation].
“Under Assembly Bill 32, the Air Board was required to determine as accurately
as possible the statewide level of greenhouse gas emissions in 1990 and to approve on
that basis a statewide emissions limit to be achieved by 2020. [Citation.] The Air Board
was required to prepare and approve by January 1, 2009, a ‘scoping plan’ for achieving
the ‘maximum technologically feasible and cost-effective’ reductions in greenhouse gas
emissions by 2020.” (Center for Biological Diversity, supra, 62 Cal.4th at pp. 215-216.)
“In its 2008 Climate Change Scoping Plan” (2008 Scoping Plan), “the Air Board
explained that ‘[r]educing greenhouse gas emissions to 1990 levels means cutting
approximately 30 percent from business-as-usual emission levels projected for 2020, or
about 15 percent from today’s levels.’ [Citation.] The [2008] Scoping Plan then set out a
‘comprehensive array of emissions reduction approaches and tools’ to meet the goal,
8
including expanding energy efficiency programs, achieving a statewide renewable energy
mix of 33 percent, developing with our regional partners a cap-and-trade program for
greenhouse gases, establishing targets and policies for emissions in transportation and
implementing existing clean transportation programs, and creating targeted fees on
certain activities affecting emissions.” (Center for Biological Diversity, supra,
62 Cal.4th at p. 216.)
“The Air Board had previously identified a year 2020 annual emissions limit,
equal to its estimate of statewide 1990 emissions, of 427 million metric tons of carbon
dioxide equivalent . . . . [Citation.] In the [2008] Scoping Plan, the board estimated
emissions by economic sector in the period 2002 to 2004, finding they totaled 469
[million metric tons of carbon dioxide equivalent] annually. Those annual emissions
were then projected forward to the year 2020, employing population and economic
growth estimates, yielding a business-as-usual figure of 596 [million metric tons of
carbon dioxide equivalent]. [Citation.] The target of 427 [million metric tons of carbon
dioxide equivalent] is about 29 percent below the 2020 forecast of 596 [million metric
tons of carbon dioxide equivalent], giving the Air Board the 30 percent reduction goal
quoted earlier.
“The [2008] Scoping Plan’s 2020 forecast is referred to as a ‘business-as-usual’
projection because it assumes no conservation or regulatory efforts beyond what was in
place when the forecast was made. It ‘represent[s] the emissions that would be expected
to occur in the absence of any . . . [greenhouse gas] reductions actions.’ [Citation.] For
example, the emissions forecast for electricity generation assumes ‘all growth in
electricity demand by 2020 will be met by in-state natural gas-fired power plants’ and the
estimate for on-road vehicle emissions ‘assumes no change in vehicle fleet mix over
time.’ [Citation.]
“Neither Assembly Bill 32 nor the Air Board’s [2008] Scoping Plan set out a
mandate or method for CEQA analysis of greenhouse gas emissions from a proposed
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project. A 2007 CEQA amendment, however, required the preparation, adoption and
periodic update of guidelines for mitigation of greenhouse gas impacts.” (Center for
Biological Diversity, supra, 62 Cal.4th at pp. 216-217.)
“In 2015, the Governor signed Executive Order B-30-15” (2015 Executive Order)
“to establish a state greenhouse gas reduction target of 40 percent below 1990 emissions
levels by 2030. The Governor’s new target would make it possible for the state to reach
the ultimate goal of reducing emissions to 80 percent below 1990 levels by 2030.”
(League to Save Lake Tahoe v. County of Placer (2022) 75 Cal.App.5th 63, 109.) Senate
Bill No. 32 (2015-2016 Reg. Sess.) (Senate Bill 32) codified the 2015 Executive Order.
(See Health & Saf. Code, § 38566, added by Stats. 2016, ch. 249, § 2 [“In adopting rules
and regulations to achieve the maximum technologically feasible and cost-effective
greenhouse gas emissions reductions authorized by this division, the [Air Board] shall
ensure that statewide greenhouse gas emissions are reduced to at least 40 percent below
the statewide greenhouse gas emissions limit no later than December 31, 2030”].)
In 2017, the Air Board adopted an updated Scoping Plan. The Air Board provided
guidance “[t]o support local governments in their efforts to reduce [greenhouse gas]
emissions.” (Air Bd., California’s 2017 Climate Change Scoping Plan: The strategy for
achieving California’s 2030 greenhouse gas target (Nov. 2017) ch. 5, p. 99 (2017
Scoping Plan).) For “local plan-level greenhouse gas emissions reduction goals”
(capitalization & boldface omitted), the Air Board “recommend[ed] that local
governments evaluate and adopt robust and quantitative locally-appropriate goals that
align with the statewide per capita targets and the [s]tate’s sustainable development
objectives and develop plans to achieve the local goals. The statewide per capita goals
were developed by applying the percent reductions necessary to reach the 2030 and 2050
climate goals (i.e., 40 percent and 80 percent, respectively) to the [s]tate’s 1990
emissions limit established under [Assembly Bill] 32.” (Id., pp. 99-100.) The Air Board
noted “[n]umerous local governments in California have already adopted [greenhouse
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gas] emissions reduction goals for year 2020 consistent with [Assembly Bill] 32” and
“advise[d] that local governments also develop community-wide [greenhouse gas]
emissions reduction goals necessary to reach 2030 and 2050 climate goals. Emissions
inventories and reduction goals should be expressed in mass emissions, per capita
emissions, and service population emissions.” (Id., p. 100.)
The Air Board explained, “To do this, local governments can start by developing a
community-wide [greenhouse gas] emissions target consistent with the accepted
protocols as outlined in [the Office of Planning and Research’s] General Plan Guidelines
Chapter 8: Climate Change. They can then calculate [greenhouse gas] emissions
thresholds by applying the percent reductions necessary to reach 2030 and 2050 climate
goals (i.e., 40 percent and 80 percent, respectively) to their community-wide [greenhouse
gas] emissions target. Since the statewide per capita targets are based on the statewide
[greenhouse gas] emissions inventory that includes all emissions sectors in the [s]tate, it
is appropriate for local jurisdictions to derive evidence-based local per capita goals based
on local emissions sectors and population projections that are consistent with the
framework used to develop the statewide per capita targets. The resulting [greenhouse
gas] emissions trajectory should show a downward trend consistent with the statewide
objectives. The recommendation for a community-wide goal expands upon the reduction
of 15 percent from ‘current’ (2005-2008) levels by 2020 as recommended in the 2008
Scoping Plan.” (2017 Scoping Plan, supra, ch. 5, p. 100, fn. omitted.)
The Air Board also discussed “project-level greenhouse gas emissions reduction
actions and thresholds.” (2017 Scoping Plan, supra, ch. 5, pp. 101-102, capitalization &
boldface omitted.) The Air Board “recommend[ed] that projects incorporate design
features and [greenhouse gas] reduction measures, to the degree feasible, to minimize
[greenhouse gas] emissions.” (Id., p. 101.) The Air Board further stated, “Lead agencies
have the discretion to develop evidence-based numeric thresholds (mass emissions, per
11
capita, or per service population) consistent with this Scoping Plan, the [s]tate’s long-
term [greenhouse gas] goals, and climate change science.” (Id., p. 102.)
B
The Guideline For Determining The Significance Of Impacts
From Greenhouse Gas Emissions
“In 2010, the Natural Resources Agency adopted a new CEQA guideline on
determining the significance of impacts from greenhouse gas emissions.” (Center for
Biological Diversity, supra, 62 Cal.4th at p. 217.) Guidelines section 15064.4,
subdivision (a) requires a lead agency to “make a good-faith effort, based to the extent
possible on scientific and factual data, to describe, calculate or estimate the amount of
greenhouse gas emissions resulting from a project. A lead agency shall have discretion to
determine in the context of a particular project, whether to: [¶] (1) [q]uantify greenhouse
gas emissions resulting from a project; and/or [¶] (2) [r]ely on a qualitative analysis or
performance based standards.” (Guidelines, § 15064.4, subd. (a).)
Guidelines section 15064.4, subdivision (b) provides “that when assessing the
significance of greenhouse gas emissions, the agency should consider these factors
among others: ‘(1) The extent to which the project may increase or reduce greenhouse
gas emissions as compared to the existing environmental setting; [¶] (2) [w]hether the
project emissions exceed a threshold of significance that the lead agency determines
applies to the project[;] [¶] (3) [t]he 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 greenhouse gas emissions. Such requirements must be adopted
by the relevant public agency through a public review process and must reduce or
mitigate the project’s incremental contribution of greenhouse gas emissions. If there is
substantial evidence that the possible effects of a particular project are still cumulatively
considerable notwithstanding compliance with the adopted regulations or requirements,
12
an [environmental impact report] must be prepared for the project.’ ” (Center for
Biological Diversity, supra, 62 Cal.4th at p. 217.)
Guidelines section 15064.4, subdivision (c) provides: “A lead agency may use a
model or methodology to estimate greenhouse gas emissions resulting from a project.
The lead agency has discretion to select the model or methodology it considers most
appropriate to enable decision makers to intelligently take into account the project’s
incremental contribution to climate change. The lead agency must support its selection of
a model or methodology with substantial evidence. The lead agency should explain the
limitations of the particular model or methodology selected for use.”
C
Summary Of The Cases Upon Which Tsakopoulos Relies
In Center for Biological Diversity, our Supreme Court considered, among other
things, whether the lead agency’s determination that a project’s estimated greenhouse gas
emissions would not have a significant environmental impact was supported by
substantial evidence in the administrative record. (Center for Biological Diversity, supra,
62 Cal.4th at p. 218.) In the pertinent environmental impact report, the lead agency
disclosed “the project’s likely increase in emissions over the existing environment,
informing the reader that the project w[ould] increase greenhouse gas emissions by
269,053 [metric tons of carbon dioxide equivalent] compared to the existing
environmental setting [citation], but decline[d] to consider the impact significant based
on the size of that increase alone ‘because of the absence of scientific and factual
information regarding when particular quantities of greenhouse gas emissions become
significant.’ As for a significance threshold [citation], the [lead agency] assert[ed] that
no agency had adopted an applicable threshold.” (Id. at p. 222.)
The lead agency next considered “ ‘whether the proposed [p]roject’s emissions . . .
would impede the State of California’s compliance with the statutory emissions reduction
mandate established by [Assembly Bill] 32,” which was “modeled on the Air Board’s
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use, in its [2008] Scoping Plan, of comparison to a ‘business-as-usual’ projection as a
measure of the emission reductions needed to meet the 2020 goal (determined to be a
reduction of 29 percent from business as usual).” (Center for Biological Diversity, supra,
62 Cal.4th at p. 218.) As noted earlier, “the [2008] Scoping Plan forecasted statewide
greenhouse gas emissions under a business-as-usual scenario in which no additional
regulatory actions were taken to reduce emissions.” (Ibid.) In the pertinent
environmental impact report, the lead agency estimated project emissions at 390,046
metric tons of carbon dioxide equivalent per year “ ‘if the proposed [p]roject and
resulting development were constructed consistent with [the Air Board’s] assumptions for
the [Air Board’s] 2020 . . . [no action taken, or business as usual] scenario.’ ” (Ibid.)
“Because the [lead agency’s] estimate of actual annual project emissions . . . [wa]s
31 percent below its business-as-usual estimate . . . , exceeding the Air Board’s
determination of a 29 percent reduction from business as usual needed statewide, the
[lead agency] conclude[d] the project’s likely greenhouse gas emissions w[ould] not
impede achievement of Assembly Bill 32’s goals and [would] therefore [be] less than
significant for CEQA purposes.” (Center for Biological Diversity, supra, 62 Cal.4th at
p. 218.)
Initially, our Supreme Court addressed “two related aspects of the greenhouse gas
problem that inform [the] discussion of CEQA significance.” (Center for Biological
Diversity, supra, 62 Cal.4th at p. 219.) “First, because of the global scale of climate
change, any one project’s contribution is unlikely to be significant by itself. The
challenge for CEQA purposes is to determine whether the impact of the project’s
emissions of greenhouse gases is cumulatively considerable, in the sense that ‘the
incremental effects of [the] individual project are considerable when viewed in
connection with the effects of past projects, the effects of other current projects, and the
effects of probable future projects.’ [Citations.] ‘With respect to climate change, an
individual project’s emissions will most likely not have any appreciable impact on the
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global problem by themselves, but they will contribute to the significant cumulative
impact caused by greenhouse gas emissions from other sources around the globe. The
question therefore becomes whether the project’s incremental addition of greenhouse
gases is “cumulatively considerable” in light of the global problem, and thus significant.’
[Citation.]
“Second, the global scope of climate change and the fact that carbon dioxide and
other greenhouse gases, once released into the atmosphere, are not contained in the local
area of their emission means that the impacts to be evaluated are also global rather than
local. For many air pollutants, the significance of their environmental impact may
depend greatly on where they are emitted; for greenhouse gases, it does not. For projects,
like . . . residential and commercial development, which are designed to accommodate
long-term growth in California’s population and economic activity, this fact gives rise to
an argument that a certain amount of greenhouse gas emissions is as inevitable as
population growth. Under this view, a significance criterion framed in terms of
efficiency is superior to a simple numerical threshold because CEQA is not intended as a
population control measure.” (Center for Biological Diversity, supra, 62 Cal.4th at
pp. 219-220.)
Turning to the merits of the case, our Supreme Court first considered the
plaintiffs’ contention that the “no significant impact conclusion resulted from use of a
legally improper baseline for comparison” because the lead agency determined
significance “by comparison to the hypothetical business-as-usual scenario rather than by
comparison to existing greenhouse gas emissions on the project site.” (Center for
Biological Diversity, supra, 62 Cal.4th at pp. 218-219.) The court concluded the lead
agency’s choice to use the Assembly Bill 32 goal as the criterion for evaluating the
significance of the project’s climate change effects did not violate CEQA. (Center for
Biological Diversity, at p. 223.)
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Our Supreme Court next considered whether the lead agency “violated CEQA by
comparing the project’s expected emissions to a hypothetical business-as-usual scenario
rather than to a baseline of emissions in the existing physical environment.” (Center for
Biological Diversity, supra, 62 Cal.4th at p. 224.) Our Supreme Court held the lead
agency “employ[ed] a hypothetical business-as-usual emissions model merely as a means
of comparing the project’s projected emissions to the statewide target set under the
[2008] Scoping Plan” and “not as a significance baseline.” (Id. at p. 225.) Our Supreme
Court, however, agreed with the plaintiffs that the lead agency “abused its discretion in
finding, on the basis of the [environmental impact report’s] business-as-usual
comparison, that the project’s greenhouse gas emissions would have no cumulatively
significant impact on the environment” because “the administrative record disclose[d] no
substantial evidence that [the] project-level reduction of 31 percent in comparison to
business as usual [wa]s consistent with achieving Assembly Bill 32’s statewide goal of a
29 percent reduction from business as usual.” (Ibid.)
Our Supreme Court explained: “The [2008] Scoping Plan set out a statewide
reduction goal and a framework for reaching it—a set of broadly drawn regulatory
approaches covering all sectors of the California economy and projected, if implemented
and followed, to result in a reduction to 1990-level greenhouse gas emissions by the year
2020. The plan expressed the overall level of conservation and efficiency improvements
required as, among other measures, a percentage reduction from a hypothetical scenario
in which no additional regulatory actions were taken. But the [2008] Scoping Plan
nowhere related that statewide level of reduction effort to the percentage of reduction that
would or should be required from individual projects, and nothing . . . in the
administrative record indicate[d] the required percentage reduction from business as
usual is the same for an individual project as for the entire state population and
economy.” (Center for Biological Diversity, supra, 62 Cal.4th at pp. 225-226.)
16
Pointing to a letter from the California Attorney General’s Office in the
administrative record, our Supreme Court noted there was “reason to suspect” that “a
greater degree of reduction may be needed from new land use projects than from the
economy as a whole” because “[d]esigning new buildings and infrastructure for
maximum energy efficiency and renewable energy use is likely to be easier, and is more
likely to occur, than achieving the same savings by retrofitting of older structures and
systems.” (Center for Biological Diversity, supra, 62 Cal.4th at p. 226.) The court found
the lead agency’s “responses to comments on the [environmental impact report] d[id] not
suffice to demonstrate that a 31 percent reduction from business as usual at the project
level corresponds to the statewide reductions called for in the [2008] Scoping Plan.”
(Ibid.) And there was “no expert opinion stating generally that the [2008] Scoping Plan
contemplate[d] the same emission reductions from new buildings as from existing ones,
or more particularly that the [2008] Scoping Plan’s statewide standard of a 29 percent
reduction from business as usual applies without modification to a new residential or
mixed-use development project.” (Ibid.)
Our Supreme Court further determined the lead agency made “an unsupported
assumption regarding statewide density averages used in the [2008] Scoping Plan, an
assumption that if incorrect could result in a misleading business-as-usual comparison.”
(Center for Biological Diversity, supra, 62 Cal.4th at pp. 226-227.) The court explained
the lead agency’s “business-as-usual scenario assume[d] residential density equal to that
currently found in the Santa Clarita Valley,” whereas “the [2008] Scoping Plan’s
statewide business-as-usual model is not necessarily based on residential densities equal
to the Santa Clarita Valley average.” (Id. at p. 227.) Nothing in the administrative record
showed “the statewide density assumptions used in [the established growth] model [used
to develop the business-as-usual projection in the 2008 Scoping Plan] mirror[ed]
conditions in the Santa Clarita Valley.” (Ibid.) The administrative record thus did “not
establish a firm ground for the efficiency comparison” in the environmental impact report
17
and did not “substantially support” the conclusion that the project’s greenhouse gas
“emissions savings over business as usual satisfie[d] the . . . [2008] Scoping Plan’s 29
percent statewide savings” goal. (Ibid.)
“At bottom, the [environmental impact report’s] deficiency” in Center for
Biological Diversity “stem[med] from taking a quantitative comparison method
developed by the [2008] Scoping Plan as a measure of the greenhouse gas emissions
reduction effort required by the state as a whole, and attempting to use that method,
without consideration of any changes or adjustments, for a purpose very different from its
original design: to measure the efficiency and conservation measures incorporated in a
specific land use development proposed for a specific location. The [lead agency] simply
assume[d] that the level of effort required in one context, a 29 percent reduction from
business as usual statewide, w[ould] suffice in the other, a specific land use development.
From the information in the administrative record, [our Supreme Court] c[ould not] say
that conclusion [wa]s wrong, but neither c[ould it] discern the contours of a logical
argument that it [wa]s right. The analytical gap left by the [lead agency’s] failure to
establish, through substantial evidence and reasoned explanation, a quantitative
equivalence between the [2008] Scoping Plan’s statewide comparison and the
[environmental impact report’s] own project-level comparison deprived the
[environmental impact report] of its ‘ “sufficiency as an informative document.” ’ ”
(Center for Biological Diversity, supra, 62 Cal.4th at p. 227.)
Our Supreme Court explained, “A lead agency enjoys substantial discretion in its
choice of methodology. But when the agency chooses to rely completely on a single
quantitative method to justify a no-significance finding, CEQA demands the agency
research and document the quantitative parameters essential to that method. Otherwise,
decision makers and the public are left with only an unsubstantiated assertion that the
impacts—[such as], the cumulative impact of the project on global warming—will not be
significant.” (Center for Biological Diversity, supra, 62 Cal.4th at p. 228.)
18
In that regard, the court addressed potential options for lead agencies “faced with
evaluating the cumulative significance of a proposed land use development’s greenhouse
gas emissions,” noting it could not “guarantee that any of these [options] will be found to
satisfy CEQA’s demands as to any particular project.” (Center for Biological Diversity,
supra, 62 Cal.4th at pp. 228-229.) First, “[o]n an examination of the data behind the
[2008] Scoping Plan’s business-as-usual model, a lead agency might be able to determine
what level of reduction from business as usual a new land use development at the
proposed location must contribute in order to comply with statewide goals.” (Id. at
p. 229.) Second, “a lead agency might assess consistency with Assembly Bill 32’s goal
in whole or in part by looking to compliance with regulatory programs designed to reduce
greenhouse gas emissions from particular activities.” (Ibid.)
Third, “a lead agency may rely on existing numerical thresholds of significance
for greenhouse gas emissions, though . . . use of such thresholds is not required.” (Center
for Biological Diversity, supra, 62 Cal.4th at p. 230.) Our Supreme Court cautioned,
however, thresholds “only define the level at which an environmental effect ‘normally’ is
considered significant; they do not relieve the lead agency of its duty to determine the
significance of an impact independently.” (Id. at pp. 230-231.)
In Golden Door Properties, the Fourth District Court of Appeal struck down a
guidance document adopted by the County of San Diego, which included an efficiency
metric of 4.9 metric tons of carbon dioxide equivalent per service population per year for
2020 as a measure to determine the significance of greenhouse gas impacts for
development proposals. (Golden Door Properties, supra, 27 Cal.App.5th at pp. 894-895,
897-898.) The County of San Diego explained the efficiency metric would be used to
determine whether a project complied with the greenhouse gas reduction requirements in
Assembly Bill 32. (Golden Door Properties, at pp. 897-898.)
After concluding the efficiency metric established a threshold of significance
(Golden Door Properties, supra, 27 Cal.App.5th at pp. 901-903), the court explained a
19
threshold of significance developed in reliance on statewide standards “must be justified
by substantial evidence to explain why it is sufficient for use in projects in the County [of
San Diego]” (id. at pp. 904-905). The County of San Diego argued that because the
efficiency metric was based on service population per year, it “supplie[d] San Diego
specific data.” (Id. at p. 905.) The appellate court disagreed, stating, “[T]he service
population number relies on statewide service population and [greenhouse gas] inventory
data; it does not address the County [of San Diego] specifically, and it does not explain
why using statewide data is appropriate for setting the metric for the County [of San
Diego]. Additionally, the [e]fficiency [m]etric ‘allows the threshold to be applied evenly
to most project types,’ but it does not account for variations between different types of
development; nor does it explain why the per person limit would be appropriately evenly
applied despite project differences. Without substantial evidence explaining why
statewide [greenhouse gas] reduction levels would be properly used in this context, the
County [of San Diego] fail[ed] to comply with CEQA Guidelines.” (Ibid.)
D
The County’s 2011 General Plan Environmental Impact Report
The methodology underlying the greenhouse gas emissions thresholds of
significance used by the County in the final report was initially developed and established
in an environmental impact report completed in 2011 when the County adopted its
updated general plan. In the updated general plan, the County noted “a climate change
impact is considered significant if any portion of the [p]roject will significantly hinder
attainment of the state’s goals to reduce greenhouse gas emissions to 1990 levels by the
year 2020.” (Sacramento County Dept. of Environmental Review and Assessment,
Sacramento County General Plan Update: Final Environmental Impact Report Volume II
(Apr. 2010) ch. 12, p. 12-15 (2011 General Plan EIR).)
The County used a model to inventory the estimated greenhouse gas emissions in
the County and incorporated cities within the County to develop “a regional picture”
20
based on 2005 data, or if “unavailable, 2006 or other recent-year data.” (2011 General
Plan EIR, supra, ch. 12, p. 12-15.) The calculated greenhouse gas emissions were
divided between residential, commercial, industrial, transportation, off-road vehicle use,
waste, wastewater treatment, agriculture, high global warming potential contributors
(e.g., refrigerants), and airport sectors. The emissions inventories for the residential,
commercial, and industrial sectors were based on energy usage, whereas the emissions
inventories for the transportation sector, for example, were based on exhaust emissions.
(Ibid.)
The County obtained energy use data from the Sacramento Municipal Utility
District and Pacific Gas and Electric Company. (2011 General Plan EIR, supra, ch. 12,
p. 12-15.) The Sacramento Municipal Utility District “reported its 2005 [greenhouse gas]
emissions and an emissions factor for all electricity sold to customers that was verified
and certified by the California Climate Action Registry. This emissions factor was input
into the model as a replacement for the statewide emissions factor for electricity
consumption to generate more accurate [greenhouse gas] emissions estimates for
Sacramento County electricity consumption. The software default emissions factors for
other [greenhouse gases], which is based on statewide averages, were used in all other
instances.” (Id., pp. 12-15 to 12-16.) “The County’s 2005 [greenhouse gas] baseline
from which [carbon dioxide equivalent] emissions were adjusted was obtained from the
County’s Greenhouse Gas Inventory completed in 2009.” (Id., p. 12-16.)
In the “impacts of the project on climate change” (2011 General Plan EIR, supra,
ch. 12, p. 12-26, boldface & capitalization omitted) section of the document, the County
explained the community analysis of the various sectors revealed “transportation
accounts for 55 [percent] of emissions, and operation of residential, commercial, and
industrial buildings accounts for 28 [percent] of emissions. The industrial-specific, off-
road vehicle, waste, wastewater, agriculture, and high global warming potential
greenhouse gases . . . sectors combined are responsible for only 14 [percent] of the
21
County emissions, with the airport as an additional 3 [percent]” (id., p. 12-27). The
County combined the residential, commercial, and industrial sectors “because though
th[o]se sectors operate differently, the source of emissions [is] the same: private building
and interior equipment energy usage.” (Ibid.) The total greenhouse gas emissions among
all sectors was estimated to be 6,555,802 metric tons of carbon dioxide equivalent. (Id.,
p. 12-27, table CC-2 [2005 Community Emissions by Sector].)
The County explained that Assembly Bill 32 “requires emissions to be reduced to
1990 levels by the year 2020, which is estimated in the . . . [2008] Scoping Plan to be 15
[percent] below existing (2005) emissions.” (2011 General Plan EIR, supra, ch. 12,
p. 12-28.) Because the 2008 Scoping Plan was “the only regulatory document adopted by
the [s]tate that sets a greenhouse gas reduction goal,” the County “decided to rely on the
underlying strategy and assumptions of the . . . [2008] Scoping Plan to develop County
targets.” (Ibid., boldface & underlining omitted.) The County “assumed that emissions
must be reduced to 1990 levels by 2020” and determined that by “[r]educing the modeled
2005 . . . County emissions by 15 [percent], the County 1990 baseline is 5,572,432 metric
tons.” (Ibid., boldface & underlining omitted.)
The County then established three thresholds of significance for development
based on the 2020 emissions reduction goal—one for residential, one for commercial and
industrial, and one for transportation. (2011 General Plan EIR, supra, ch. 12, p. 12-35.)
The County explained, “Each sector 2020 target was derived by using their percent[age]
of the 2005 baseline total and multiplying it by the total minimum reduction required
(e.g., 1,033,142 [minus] (15.80 [percent multiplied by] 983,370) [equals] the residential
sector 2020 target). The targets were derived using housing projections and projections
of commercial and industrial square footage provided by the Sacramento Area Council of
Governments . . . . Note that for the commercial and industrial sector, the target is
reported as being per 1,000 square feet.” (Id., p. 12-36.)
22
The County explained the total minimum reduction was “based on the proportion
that each sector contributes to emissions (e.g., [c]ommercial/[i]ndustrial emissions are
12.1[ percent] of the total 2005 emissions, so that sector is also responsible for 12.1[
percent] of the total minimum reduction required: 12.1[ percent] [multiplied by]
983,370).” 5 (2011 General Plan EIR, supra, ch. 12, p. 12-37, table CC-9.) The adopted
thresholds were: 1.30 metric tons of carbon dioxide equivalent emissions per capita for
residential; 8.08 metric tons of carbon dioxide equivalent emissions per 1,000 square feet
for commercial and industrial; and 4.56 metric tons of carbon dioxide equivalent
emissions per capita for transportation. (Ibid.) The per capita thresholds were calculated
based on 2020 population, commercial square footage, and industrial square footage
forecasts provided by the Sacramento Area Council of Governments. (Id., p. 12-36.)
By way of example, because total emissions needed to be reduced by 983,370
metric tons of carbon dioxide equivalent to meet the 2020 target, the residential sector
was expected to contribute 15.8 percent towards that reduction, or 155,373 metric tons of
carbon dioxide equivalent emissions. Subtracting 155,373 from the 2005 residential
emissions of 1,003,142 metric tons yielded a 2020 residential target of 877,769 metric
tons of carbon dioxide equivalent.
E
The Methodology Used For The Climate Change Significance Thresholds
In The Final Report
As noted ante, the final report incorporated the 2011 General Plan EIR and the
significance thresholds contained therein. Before the County addressed the methodology
5 The percentage of total greenhouse gas emissions attributed to the residential
sector based on total emissions in 2005 was 15.8 percent, and 55.0 percent was attributed
to the transportation sector. (2011 General Plan EIR, supra, ch. 12, p. 12-37, table CC-9
[Sector Analysis (in MT) and Thresholds for Development].)
23
it adopted, it discussed the “state plans, policies, laws, and regulations.” (Capitalization
& boldface omitted.) The County discussed, among other things, the 2005 Executive
Order, Assembly Bill 32, the 2015 Executive Order, Senate Bill 32, and the 2017 Scoping
Plan. As to the 2017 Scoping Plan, the County noted the Air Board “identifie[d] how
[greenhouse gases] associated with proposed projects could be evaluated under CEQA.”
Turning to the methodology, the County wrote: “In line with the thresholds and
methods recommended by Sacramento County, the analysis of the . . . [p]roject’s
operational [greenhouse gas] emissions is divided into two separate emission sectors:
[e]nergy [u]se and [t]ransportation.” In that regard, the County evaluated the project’s
greenhouse gas emissions “for a partial buildout scenario in 2020 and a full buildout
scenario in 2032.” The County explained the 2030 significance thresholds adopted in the
final report “reflect[ed] an update to the 2020 thresholds consistent with the reduction
target established by [Senate Bill] 32 of 40 percent below 1990 levels by 2030 and 80
percent below 1990 levels by 2050, based on the same methodology used to develop the
2020 significance thresholds.” (Boldface & underlining omitted.)
The County explained, “The partial buildout scenario includes a [vehicle miles
traveled] estimate using a straight-line regression between the existing (i.e., 2015)
[vehicle miles traveled] estimate and the full buildout conditions (i.e., 2035) to obtain
anticipated [vehicle miles traveled] in 2020. This assumes five years of project
development has occurred, or 29 percent of the total project buildout. The amount of
residential and nonresidential development that is included in this partial buildout
scenario is included in [a table]. The full buildout scenario conservatively assume[d] the
2035 [vehicle miles traveled] conditions in 2032 and all land uses are fully built out. All
land uses included in the full buildout scenario [were] also included in [the table].” For
housing, the table includes estimates for 2020 and 2035 for the number of units of single-
family housing, low-rise apartments, and mid-rise apartments; anticipated population;
and acres. For retail and office space, the community center, research and development,
24
light industrial, and a city park, the County set forth estimates for square footage and
acres. For the elementary school, the table includes square footage, total anticipated
students, and acreage.
The County next discussed energy use emissions. The County explained the 2020
partial buildout scenario’s level of electricity and natural gas consumption were
“estimated using default consumption rates in the California Emissions Estimator Model
(CalEEMod) Version 2016.3.2” (estimator model) “for the types of land uses included in
[the table].” “For the full buildout scenario in 2032, levels of electricity and natural gas
consumption were estimated by adjusting the default consumption rates in [the estimator
model] for the types of land uses proposed in the [project] based on the anticipated
energy consumption reduction determined by [the California Energy Commission] for the
2019 Title 24 Building Energy Efficiency Standards. Single-family housing energy
consumption was decreased by 7 percent and nonresidential building energy was reduced
by 30 percent to account for efficiency improvement between the 2016 and 2019 Title 24
standards [citation].
“[Greenhouse gas] emissions were estimated for electricity consumption based on
[greenhouse gas] emission intensity factors for Sacramento Municipal Utility District . . .
and assumed compliance with California’s Renewables Portfolio Standard (i.e., 33
percent renewable energy portfolio by 2020 and 60 percent by 2030). The 2019 Title 24
Building Energy Efficiency Standards require single-family housing to generate their
electricity demand from renewable sources such as solar photovoltaics. Emissions
modeling accounted for solar generation based on the 2019 Title 24 standards in the 2032
full buildout scenario. Assumptions and details regarding the estimated solar generation
can be found in Appendix AQ-GHG-1. To estimate [greenhouse gas] emissions
associated with natural gas, [the estimator model] default energy usage rates and
emission factors were used based on the project’s land use types and climate region.
25
“Emissions from energy consumption were summed separately for residential and
nonresidential land uses. [Greenhouse gas] emissions for energy consumption by
residential land use (i.e., single- and multifamily units) were normalized by the number of
residents that [sic] would populate these uses and compared to the County’s adopted
2020 threshold of 1.33 annual metric tons of [carbon dioxide equivalent] per capita per
year . . . and the County’s extrapolated threshold for 2032 of 0.73 [metric tons of carbon
dioxide equivalent per capita per year]. [Greenhouse gas] emissions for energy
consumption by nonresidential land uses (i.e., commercial center, community center,
elementary schools, [e]nvironmental [e]ducation [c]ampus, [r]esearch and [d]evelopment
[c]ampus) were normalized by floor area and compared to the County’s adopted 2020
threshold of 7.87 [metric tons of carbon dioxide equivalent] per 1,000 square feet of floor
area . . . and the County’s extrapolated threshold for 2032 of 4.28 [metric tons of carbon
dioxide equivalent per 1,000 square feet of floor area].”
Transportation emissions, the County explained, “are associated with the project-
generated vehicle trips. Transportation-related emissions were compared to the [vehicle
miles traveled] per capita thresholds. For comparison to Sacramento County’s per-capita
[greenhouse gas] thresholds of significance, the total population served by the project
was also estimated.
“Transportation-related emissions were calculated using [vehicle miles traveled]
estimates provided by the traffic study of the proposed project [citation]. [Vehicle miles
traveled] estimates were provided for existing-plus-project conditions, cumulative-no-
project conditions, and cumulative-plus-project conditions. The cumulative scenario
includes [vehicle miles traveled] associated with the proposed [project] as well as other
large foreseeable development including the NewBridge Specific Plan, Jackson
Township, and the West Jackson Highway Master Plan.
“[Greenhouse gas] vehicle emission factors for 2020 and 2032 were obtained from
[the Air Board’s] Mobile Source EMissions FACtor (EMFAC) 2017 model, version
26
1.0.2” (mobile source model). “[The mobile source model] was also used to estimate the
level of mobile-source [greenhouse gas] emissions that would be generated based on
projected [vehicle miles traveled] under the 2020 partial buildout and 2032 full buildout
scenarios. Emission rates were used to generate the total [vehicle miles traveled]-related
emissions for the project in 2020 and 2032 to be compared to the Sacramento County
per-capita thresholds for [vehicle miles traveled]. The population estimates were based
on average household sizes for the Sacramento region as reported [by the Sacramento
Area Council of Government’s Metropolitan Transportation Plan/Sustainable
Communities Strategy] for the partial buildout year of 2020 using 2020 estimates and the
full buildout year of 2032 using 2036 estimates [citation].”
The next section discussed in the final report pertained to other sectors. The
County wrote, “[T]here are several [greenhouse gas] emissions sectors that [are] not
included in the County’s [greenhouse gas] thresholds, but are quantified in this analysis.
This includes [greenhouse gas] emissions associated with area sources, water, and solid
waste.
“[Greenhouse gases] from area sources were based on the number of residential
units, the size of the nonresidential buildings, and the number of days of landscaping per
year (i.e., 180). [Greenhouse gases] from electricity consumption specifically associated
with the consumption of water, were based on residential and commercial water demand
estimates provided by Sacramento County for the project. [Greenhouse gas] emissions
associated with the generation of solid waste were estimated using default parameters in
[the estimator model]. While these emission estimates were not part of the comparison to
the County’s recommended thresholds of significance, they were included in the
emissions summary for informational purposes.”
In the “impacts and analysis” (boldface & capitalization omitted) section, the
County incorporated by reference the Mather Field Project environmental impact report,
which “evaluated impacts related to climate change and [greenhouse gas] emissions from
27
implementation of the Mather Field Project which consisted of a realignment of
Zinfandel Drive and trunk extension, creation of the Mather Preserve and the
establishment of an [u]rban [d]evelopment [a]rea designation for the Mather South [p]lan
[a]rea.” The County discussed adopted mitigation measures in the Mather Field Project
environmental impact report pertaining to residential and commercial energy sector
emission reductions. The County next addressed the impacts determination. The impact
analysis was divided into two sections—a 2020 partial buildout scenario and a 2032 full
buildout scenario. For each scenario, the County addressed energy-related greenhouse
gas emissions from residential land uses, energy-related greenhouse gas emissions from
nonresidential land uses, and transportation-related greenhouse gas emissions. The
County then provided an emissions total from all sectors for each scenario.
The County determined: “Energy-related emissions associated with the proposed
residential land uses would result in 0.52 [metric tons of carbon dioxide equivalent] per
capita, which is below the 0.73 [metric tons of carbon dioxide equivalent] per-capita
threshold. Energy-related [e]missions from nonresidential land uses would result in 2.28
[metric tons of carbon dioxide equivalent per 1,000 square feet], which is below the 4.28
[metric tons of carbon dioxide equivalent per 1,000 square feet] threshold. There would
be a surplus in emissions reductions needed for both the residential and nonresidential
sectors, by 1,933 and 2,134 [metric tons of carbon dioxide equivalent per year],
respectively. Emissions from project-generated [vehicle miles traveled] in 2032 would
result in 2.50 [metric tons of carbon dioxide equivalent] per capita, which is above the
1.47 [metric tons of carbon dioxide equivalent] per-capita threshold. The surplus of
emissions reductions from the residential and nonresidential sectors can be applied to
[greenhouse gas] emissions reductions needed for the mobile sector. The additional
reduction of 4,067 [metric tons of carbon dioxide equivalent per year] would reduce the
mobile sector’s per capita emissions to 2.05 [metric tons of carbon dioxide equivalent],
but would still require an additional reduction of 5,289 [metric tons of carbon dioxide
28
equivalent per year] to meet the threshold. Even with the additional reductions in
[greenhouse gas] emissions from the residential and nonresidential energy sectors,
project-generated [greenhouse gas] emissions would exceed applicable Sacramento
County thresholds of significance for transportation and result in a cumulatively
considerable contribution to climate change. This impact would be potentially
significant.” The County adopted three mitigation measures. We do not discuss the
specifics as to the mitigation measures because they are not pertinent to this appeal.
F
The County’s Methodology Differs From The Methodologies
Previously Rejected For Lack Of Substantial Evidence
The argument presented by Tsakopoulos to challenge the County’s greenhouse gas
thresholds of significance is quite narrow. Tsakopoulos argues the County used a
methodology in developing the 2032 thresholds of significance that was rejected in
Center for Biological Diversity and Golden Door Properties for lack of substantial
evidence. The analysis under substantial evidence review turns on the information
contained in the record before us on appeal. The question is thus whether the record
establishes the County employed “the same methodology” as and “significance
thresholds indistinguishable” from those rejected in Center of Biological Diversity and
Golden Door Properties. The answer is, “no.” Because Tsakopoulos’s argument is
narrow, so is our conclusion.
The County’s thresholds of significance are distinguishable from the methodology
used by the lead agency in Center for Biological Diversity for several reasons. Before we
delve into the analysis, however, we find it appropriate to clarify a couple of things
regarding our Supreme Court’s Center for Biological Diversity decision.
First, our Supreme Court did not disapprove of the methodology used by the lead
agency in that case because the court disagreed with the methodology itself. Our
Supreme Court acknowledged that, “A lead agency enjoys substantial discretion in its
29
choice of methodology.” (Center for Biological Diversity, supra, 62 Cal.4th at p. 228.)
The court concluded the lead agency abused its discretion in adopting the methodology
used in that case because there was no substantial evidence in the record to support the
methodology. (Id. at p. 225.) When a court applies the substantial evidence standard of
review, the court does not determine whether a different conclusion would have been
equally or more reasonable. (Friant Ranch, supra, 6 Cal.5th at p. 512.) In other words,
the court does not substitute its judgment for that of the lead agency.
Second, our Supreme Court did not state that “new land use projects such as th[e]
one [at issue] must incorporate greater greenhouse gas reductions than from the economy
as a whole to achieve the state targets,” as Tsakopoulos asserts. (Italics added.) Our
Supreme Court instead noted, “The California Attorney General’s Office made th[e]
point [that ‘a greater degree of reduction may be needed from new land use projects than
from the economy as a whole’] while commenting on an air district’s greenhouse gas
emissions reduction plan, in a letter one of the plaintiffs brought to [the lead agency’s]
attention in a comment on the [environmental impact report]” in that case. (Center for
Biological Diversity, supra, 62 Cal.4th at p. 226, italics added.) Our Supreme Court then
noted the lead agency’s “responses to comments on the [environmental impact report] do
not suffice to demonstrate that a 31 percent reduction from business as usual at the
project level corresponds to the statewide reductions called for in the [2008] Scoping
Plan” and the plaintiffs thus “put forward one ready reason to suspect . . . a greater
degree of reduction may be needed from land use projects than from the economy as
whole.” (Ibid., italics added.) In other words, our Supreme Court was considering the
evidence in the administrative record before it and determined the lead agency’s response
to the letter did not negate the probative value of the Attorney General’s point.
We now turn to the distinctions between this case and Center for Biological
Diversity. In Center for Biological Diversity, the lead agency determined that because
the project’s estimated greenhouse gas emissions were below the 29 percent reduction
30
from business as usual needed statewide and would not impede achievement of Assembly
Bill 32’s goals, the project’s impact was less than significant. (Center for Biological
Diversity, supra, 62 Cal.4th at p. 218.) The lead agency thus “employ[ed] a hypothetical
business-as-usual emissions model . . . as a means of comparing the project’s projected
emissions to the statewide target set under the [2008] Scoping Plan.” (Id. at p. 225.) Our
Supreme Court in summation rejected the methodology because the administrative record
did not contain substantial evidence indicating the 2008 Scoping Plan’s statewide
greenhouse gas reduction goal was “the same for an individual project as for the entire
state population and economy.” (Id. at pp. 225-226.)
Here, the County did not compare the project’s greenhouse gas emissions to the
statewide business-as-usual goal, as the lead agency did in Center for Biological
Diversity. The County instead developed county-specific thresholds of significance for
different sectors and then compared the project’s emissions against those numeric
thresholds of significance. The use of numerical thresholds of significance was one of
the three enumerated options outlined in Center for Biological Diversity for assessing the
significance of project impacts. (Center for Biological Diversity, supra, 62 Cal.4th at
p. 230.) The Air Board was aware of and cited to our Supreme Court’s Center for
Biological Diversity opinion when the Air Board adopted the 2017 Scoping Plan. (2017
Scoping Plan, supra, ch. 5, p. 101, fn. 251.) Like our Supreme Court, the Air Board
sanctioned the use of numerical thresholds of significance to analyze a project’s
greenhouse gas impacts.
In its 2017 Scoping Plan, the Air Board provided guidance regarding “project-
level greenhouse gas emissions reduction actions and thresholds.” (2017 Scoping Plan,
supra, ch. 5, pp. 101-102, capitalization & boldface omitted.) The Air Board stated,
“Lead agencies have the discretion to develop evidence-based numeric thresholds (mass
emissions, per capita, or per service population) consistent with this Scoping Plan, the
[s]tate’s long-term [greenhouse gas] goals, and climate change science.” (Id., p. 102.) A
31
couple of pages earlier in the 2017 Scoping Plan, the Air Board further advised local
governments on how to adopt local plan greenhouse gas emissions reduction goals. The
Air Board wrote, “Since the statewide per capita targets are based on the statewide
[greenhouse gas] emissions inventory that includes all emissions sectors in the [s]tate, it
is appropriate for local jurisdictions to derive evidence-based local per capita goals based
on local emissions sectors and population projections that are consistent with the
framework used to develop the statewide per capita targets.” (Id., p. 100, fn. omitted.)
In the final report, the County noted the “2017 Scoping Plan . . . identifies how
[greenhouse gases] associated with proposed projects could be evaluated under CEQA.”
In developing the 2032 thresholds of significance, the County used the same framework
(but not the same data) that the Air Board used in the 2008 Scoping Plan to calculate the
County’s 1990 greenhouse gas emission goals. The County relied on “the underlying
strategy and assumptions of the . . . [2008] Scoping Plan” but used county-specific
emissions inventories, and county-specific population and housing, commercial, and
industrial data. Unlike the lead agency in Center for Biological Diversity, the County did
not use “a quantitative comparison method developed by the [2008] Scoping Plan as a
measure of the greenhouse gas emissions reduction effort required by the state as a whole
. . . , without consideration of any changes or adjustments, . . . to measure the efficiency
and conservation measures incorporated in a specific land use development proposed for
a specific location.” (Center for Biological Diversity, supra, 62 Cal.4th at p. 227, italics
added.)
Not only is the methodology used by the County to establish the thresholds of
significance different from the business-as-usual methodology rejected in Center for
Biological Diversity, the evidence in the administrative record also differs in the two
cases. The County presents a seemingly plausible argument that the 2017 Scoping Plan
provides substantial evidence to support its thresholds of significance that were
developed based on county-specific data. The Air Board is indeed “the state agency
32
charged with regulating greenhouse gas emissions.” (Center for Biological Diversity,
supra, 62 Cal.4th at p. 215.) Tsakopoulos did not address this argument in its reply brief.
We ultimately need not decide whether the 2017 Scoping Plan constitutes substantial
evidence to support the County’s methodology in establishing the thresholds of
significance because Tsakopoulos’s challenge is limited to the assertion that the County
used the same methodology that was rejected in Center for Biological Diversity. Clearly,
the County did not employ the same methodology. Unlike the lead agency in Center for
Biological Diversity, the County did not simply assume that “the [2008] Scoping Plan’s
statewide measure of emissions reduction can also serve as the criterion for an individual
land use project.” (Center for Biological Diversity, at p. 228.)
The thresholds of significance at issue here are also distinguishable from the
threshold of significance rejected in Golden Door Properties. First, the County did not
develop the local thresholds of significance based on statewide data. (Golden Door
Properties, supra, 27 Cal.App.5th at p. 905.) The County used county-specific data, as
explained ante. In Golden Door Properties, in contrast, the court found the County of
San Diego’s “service population number relie[d] on statewide service population and
[greenhouse gas] inventory data” and the lead agency failed to “explain why using
statewide data [wa]s appropriate for setting the metric for the County [of San Diego].”
(Ibid.)
Second, the County did not develop a threshold of significance “ ‘to be applied
evenly to most project types,’ ” as was the case in Golden Door Properties. (Golden
Door Properties, LLC, supra, 27 Cal.App.5th at p. 905.) The County developed different
county-specific thresholds of significance for different sectors and then compared the
estimated greenhouse gas emissions for the project’s residential, commercial and
industrial, and transportation sectors against those thresholds of significance to evaluate
the significance of the project’s anticipated emissions. In contrast, in Golden Door
33
Properties, the County of San Diego applied the threshold evenly to most project types,
failing to “account for variations between different types of development.” (Ibid.)
Tsakopoulos has weaved in some additional arguments unrelated to its assertion
that the County used the same methodology that was previously rejected in Center for
Biological Diversity and Golden Door Properties. For example, Tsakopoulos argues
there is “no evidence justifying the claimed reductions” from the mitigation measures
adopted by the County with regard to greenhouse gas emissions reductions. It further
appears that Tsakopoulos takes issue with the County’s decision not to set thresholds of
significance for landscape equipment, waste generation, and water use. We do not
address those arguments. The subheadings in Tsakopoulos’s opening brief under the
heading, “The [final report’s] climate change analysis uses a methodology that the
California Supreme Court previously recognized is not supported by substantial
evidence” are: (1) “The California Legislature established statewide emissions reduction
targets through [Assembly Bill] 32 and [Senate Bill] 32”; (2) “[t]he County adopted
sector-wide greenhouse gas emissions significance thresholds in 2011 designed to require
that projects meet only minimum [Assembly Bill] 32 percentage emissions reductions
targets”; (3) “[t]he California Supreme Court in Center for Biological Diversity rejected
the use of significance thresholds indistinguishable from the County’s”; and (4) “[t]he
[final report’s] analysis of greenhouse gas emissions employs the same methodology the
Supreme Court rejected in the Center of Biological Diversity case.” “Failure to provide
proper headings forfeits issues that may be discussed in the brief but are not clearly
identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.)
At bottom, the County’s methodology in establishing the thresholds of
significance in this case was materially different from the methodologies used in Center
for Biological Diversity and Golden Door Properties. The County’s methodology was
accordingly not previously rejected by our Supreme Court or the Fourth District Court of
Appeal, as Tsakopoulos asserts. Tsakopoulos has thus failed to carry its burden of
34
proving the County’s methodology lacked substantial evidence, and we presume the
greenhouse gas emissions analysis in the final report is adequate. (Concerned Citizens of
South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 836
[“ ‘ “Under CEQA, an [environmental impact report] is presumed adequate [citation], and
the plaintiff in a CEQA action has the burden of proving otherwise” ’ ”].)
II
The Qualitative Analysis Regarding The Construction-related
Greenhouse Gas Emissions Is Adequate
Tsakopoulos argues the climate change analysis in the final report is deficient as
an informative document because the County failed to assess, examine, and analyze the
impacts of the project’s construction-related greenhouse gas emissions on climate
change. (Citing Guidelines, §§ 15126 [“All phases of a project must be considered when
evaluating its impacts on the environment: planning, acquisition, development, and
operation”]; 15161 [an environmental impact report “shall examine all phases of the
project including planning, construction, and operation”].) We disagree.
The County’s discussion of construction-related greenhouse gas emissions was set
forth in the significance criteria portion of the climate change chapter in the final report.
In that section of the chapter, the County explained: “The issue of global climate change
is inherently a cumulative issue, as the [greenhouse gas] emissions of individual projects
cannot be shown to have any material effect on global climate. Thus, the project’s
impact to climate change is addressed only as a cumulative impact.” As explained ante,
the County developed certain thresholds of significance for its climate change analysis
based on the County’s greenhouse gas emissions inventory. The County did not,
however, develop a threshold of significance for construction-related greenhouse gas
emissions. The County explained, “Emissions resulting from the usage of off-road
vehicles is only 4.7 percent of the total inventoried emissions in Sacramento County,
which include emissions from recreational and industrial equipment in addition to
35
construction fleets. Although emissions from the operation of newly constructed
buildings adds to existing building stock resulting in a cumulative year-on-year increase
in emissions, the level of construction activity required to build the new buildings in a
region does not result in a cumulative increase in emissions because of their temporary
nature. Though construction activity may increase or decrease in a given year because of
market demand, the average amount of construction undertaken does not tend to increase
over time, according to historical construction fleet emissions data. For this reason, even
without mitigation, the amount of annual emissions resulting from construction is
expected to decrease over time as a result of the implementation of existing regulations
(such as the [L]ow [C]arbon [F]uel [S]tandard) and improving fuel efficiency. Standard
mitigation applied for the purpose of reducing other air pollutants (see Chapter 4 Air
Quality) will further reduce [greenhouse gas] emissions. For the foregoing reasons, it
was determined that construction emissions would not contribute to a significant climate
change impact, and no threshold is necessary.”
The County discussed the Low Carbon Fuel Standard in the final report as
follows: “In January 2007, [an executive order] established a Low Carbon Fuel
Standard . . . . The [executive order] calls for a statewide goal to be established to reduce
the carbon intensity of California’s transportation fuels by at least 10 percent by 2020,
and that a [Low Carbon Fuel Standard] for transportation fuels be established for
California. The [Low Carbon Fuel Standard] applies to all refiners, blenders, producers,
or importers (‘[p]roviders’) of transportation fuels in California, including fuels used by
off-road construction equipment [citation]. The [Low Carbon Fuel Standard] is measured
on the total fuel cycle and may be met through market-based methods (e.g., providers
exceeding the performance required by [a Low Carbon Fuel Standard] receive credits that
may be applied to future obligations or traded to [p]roviders not meeting [the Low
Carbon Fuel Standard]).”
36
The administrative record also contains the 2017 Scoping Plan adopted by the Air
Board and an e-mail from the Air Board confirming that the Low Carbon Fuel Standard
applies to diesel fuel used by off-road construction equipment. In the 2017 Scoping Plan,
the Air Board explained that “renewable fuels in the heavy-duty vehicle sector are
displacing diesel fossil fuel as quickly as renewable power is replacing fossil fuels on the
electricity grid. California’s climate policies will also reduce fossil fuel use and decouple
the state from volatile global oil prices. [The Air Board’s] analyses show fossil fuel
demand will decrease by more than 45 percent by 2030, which means Californians will
be using less gasoline and diesel resulting in healthier air and cost-savings on
transportation fuels.” (2017 Scoping Plan, supra, Executive Summary, p. ES-8.) The Air
Board further wrote, “This Scoping Plan builds on and integrates efforts already
underway to reduce the [s]tate’s [greenhouse gas], criteria pollutant, and toxic air
contaminant emissions. Successful implementation of existing programs has put
California on track to achieve the 2020 target. Programs such as the Low Carbon Fuel
Standard and Renewables Portfolio Standard are delivering cleaner fuels and energy, the
Advanced Clean Cars Program has put more than a quarter million clean vehicles on the
road, and the Sustainable Freight Action Plan will result in efficient and cleaner systems
to move goods throughout the [s]tate. Enhancing and implementing these ongoing efforts
puts California on the path to achieving the 2030 target. This Scoping Plan relies on
these, and other, foundational programs paired with an extended, more stringent [c]ap-
and-[t]rade [p]rogram, to deliver climate, air quality, and other benefits.” (Id., ch. 1,
p. 1.)
In the air quality chapter of the final report, the County noted, “[A]s construction
continues into the future, equipment exhaust emission rates would decrease as newer,
more emission-efficient construction equipment replaces older, less efficient equipment,”
referring the reader to Appendix AQ-GHG-1 (greenhouse gas appendix) for assumptions
and modeling inputs. In that chapter, the County imposed a mitigation measure for
37
“exhaust emission control from diesel powered fleets at a construction site.” (Boldface &
underlining omitted.) The mitigation measure states California regulations limit idling
from both on-road and off-road diesel-powered equipment and the Air Board enforces
such idling limitations. The project is required to provide clear signage advising workers
at the entrances to the site that regulations require idling time be minimized “by shutting
equipment off when not in use or reducing the time of idling to five minutes.” The
mitigation monitoring and reporting plan contains the same mitigation measure.
Also included as a mitigation measure in the air quality chapter of the final report
and the mitigation monitoring and reporting plan is a requirement that construction
equipment be maintained in “proper working condition according to manufacturer’s
specifications” and be checked by a certified mechanic before operation to determine
whether it is running in the proper condition.
In the methodology section of the climate change chapter of the final report, the
County further stated: “Construction-related emissions are provided in [the greenhouse
gas appendix] for informational purposes but are not included in [greenhouse gas]
emissions calculations, per Sacramento County guidance. Construction-related
[greenhouse gas] emissions are considered to meet County thresholds of significance if
operational [greenhouse gas] emissions meet thresholds.” The greenhouse gas appendix
consists of 528 pages. The appendix describes, among other things, the project
components and the four phases in which construction of the project is anticipated to
occur, and then sets forth the anticipated metric tons of carbon dioxide equivalent
construction-related emissions for each year in each phase of construction.
We disagree with Tsakopoulos’s assertion that the County failed to assess and
analyze the impacts from construction-related greenhouse gas emissions. The County
calculated and presented the project’s anticipated greenhouse gas emissions from
construction-related activities for each year in the greenhouse gas appendix. Consistent
with Center for Biological Diversity, the County explained that construction-related
38
greenhouse gas emissions are analyzed on a cumulative basis. (Center for Biological
Diversity, supra, 62 Cal.4th at p. 219 [“The challenge for CEQA purposes is to determine
whether the impact of the project’s emissions of greenhouse gases is cumulatively
considerable, in the sense that ‘the incremental effects of [the] individual project are
considerable when viewed in connection with the effects of past projects, the effects of
other current projects, and the effects of probable future projects’ ”].) “[A] cumulative
impact consists of an impact which is created as a result of the combination of the project
evaluated in the [environmental impact report] together with other projects causing
related impacts.” (Guidelines, § 15130, subd. (a)(1).)
The County explained emissions from off-road vehicles total less than five percent
of the total emissions in the County, with emissions from construction fleets constituting
only a portion of those emissions. As the trial court noted, one can reasonably infer
“[g]reenhouse gas emissions from construction equipment used for one project would
thus be far below that already low percentage.” The County next explained the emissions
from construction fleets are temporary in the sense that construction fleets are not a
continuously emitting source. In other words, construction fleets emit only when they are
in use; once the project is constructed, there are no further construction-related emissions.
In that regard, the County determined that cumulatively, based on its historical
construction fleet emissions data, the average amount of construction does not increase
over time. 6 Given the implementation of existing regulations such as the Low Carbon
Fuel Standard, improved fuel efficiency, the replacement of older construction equipment
with more emission-efficient construction equipment, limitations on idling time, onsite
6 Tsakopoulos asserts this claim is not “backed by evidence” in the final report or
the administrative record. Tsakopoulos presents no reasoned argument in that regard and
does not argue that source materials have to be incorporated into or appended to an
environmental impact report.
39
exhaust control practices, and ensuring construction equipment is maintained in proper
working condition, the County concluded the project’s construction-related greenhouse
gas emissions “would not contribute to a significant climate change impact.”
The 2017 Scoping Plan supports this conclusion. Therein, the Air Board estimated
fossil fuel demand would decrease by more than 45 percent by 2030 and stated programs
like the Low Carbon Fuel Standard and the Renewables Portfolio Standard are delivering
cleaner fuels and energy. (2017 Scoping Plan, supra, Executive Summary, p. ES-8; id.,
ch. 1, p. 1.) The e-mail from the Air Board further clarifies that the Low Carbon Fuel
Standard applies to diesel fuel used by off-road construction equipment. We cannot say
that the County’s determination that the project’s construction-related emissions are not
cumulatively considerable is inadequate as a matter of law. (See Friant Ranch, supra,
6 Cal.5th at pp. 513-516 [adequacy of an environmental impact report as an informational
document is subject to a court’s independent review].) Tsakopoulos has presented no
evidence in the administrative record to suggest that the Low Carbon Fuel Standard and
the implementation of the other mitigation measures will not reduce construction-related
emissions, as the County determined.
We disagree with Tsakopoulos’s assertion that, “even in just quantifying
construction related greenhouse gas emissions, the [final report] offers no meaningful
information.” The greenhouse gas appendix sets forth the estimated construction-related
greenhouse gas emissions over the four construction phases, breaking it down by year.
The appendix shows the estimated emissions for each year are the following in metric
tons of carbon dioxide equivalent: 2019 - 1,566.4; 2020 - 2,221.2; 2021 - 2,171.5; 2022 -
1,293.3; 2023 - 1,098; 2024 - 1,290.8; 2025 - 904.8; 2026 - 1,774; 2027 - 2,274.5; 2028 -
1574.6; 2029 - 1,162.5; 2030 - 1,576; 2031 - 1,560.7; and 2032 - 975.5. In comparison,
the County estimated that, upon buildout, the annual residential greenhouse gas emissions
will be 4,726 metric tons of carbon dioxide equivalent per year, the annual nonresidential
greenhouse gas emissions will be 1,827 metric tons of carbon dioxide equivalent per
40
year, and the transportation-related greenhouse gas emissions will be 22,766 metric tons
of carbon dioxide equivalent per year. The final report is informative as to the level of
emissions expected from construction-related activities and provides the public with the
ability to compare those numbers against the greenhouse gas emissions expected upon
project build out.
Tsakopoulos argues the County’s analysis is at odds with its statements regarding
the analysis required for construction-related greenhouse gas emissions in the 2011
General Plan EIR. In the 2011 General Plan EIR, the County wrote: “For construction
equipment, reductions will be required by the County. There are established and
reasonable methods available to calculate construction equipment emissions from a given
project, and there are also reasonable means to offset those emissions available.
Construction equipment emissions will need to be addressed on a per-project basis,
according to the size of the site, the type of development proposed, and the type of
equipment that will be used.” (2011 General Plan EIR, supra, ch. 12, p. 12-36.) It
further provided: “Development projects will be required to reduce emissions from
construction equipment, but that will need to be determined on a per-project basis,
depending on the size of the site and the number and type of equipment that will be
used.” (Id., p. 12-37, table CC-9.) We do not perceive the County’s analysis in the final
report to be at odds with the 2011 General Plan EIR.
The County calculated the estimated construction-related greenhouse gas
emissions for the project and explained the construction-related greenhouse gas emissions
would be reduced through compliance with the Low Carbon Fuel Standard and
implementation of other mitigation measures adopted in the air quality portion of the
final report. The County thus determined that the Low Carbon Fuel Standard and other
mitigation measures constitute reasonable means to offset the construction-related
greenhouse gas emissions.
41
As noted ante, Guidelines section 15064.4, subdivision (a) provides, “A lead
agency shall make a good-faith effort, based to the extent possible on scientific and
factual data, to describe, calculate or estimate the amount of greenhouse gas emissions
resulting from a project. A lead agency shall have discretion to determine, in the context
of a particular project, whether to: [¶] (1) Quantify greenhouse gas emissions resulting
from a project; and/or [¶] (2) [r]ely on a qualitative analysis or performance based
standards.” It further provides the “agency should consider the following factors, among
others, when determining the significance of impacts from greenhouse gas emissions on
the environment: [¶] (1) The extent to which the project may increase or reduce
greenhouse gas emissions as compared to the existing environmental setting; [¶] (2)
[w]hether the project emissions exceed a threshold of significance that the lead agency
determines applies to the project[; and] [¶] (3) [t]he 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 greenhouse gas emissions.” (Id., subd. (b).) The
County complied with the Guidelines and Tsakopoulos presents no credible argument to
the contrary.
Finally, Tsakopoulos argues there is no “justification for ignoring construction
greenhouse gas emissions in the [final report’s] mitigation measures.” In Tsakopoulos’s
view, “At the very least, the [final report] should have included in [m]itigation [m]easure
CC-3 the amount of construction emissions it quantified when it calculated the carbon
credits needed to compensate for the Project’s excess emissions.” In that mitigation
measure, the County required the purchase of carbon offsets for greenhouse gas
emissions that exceed the transportation emissions threshold of significance “for the
lifetime of the project (i.e., 25 years).” We find no merit in this argument. First, we have
found no merit in Tsakopoulos’s challenge to the County’s qualitative analysis in
determining the construction-related greenhouse gas emissions are not cumulatively
considerable. Thus, no mitigation was required. Second, we agree with the County that
42
Tsakopoulos “mixes apples and oranges” because the mitigation measure “only applies to
[e]missions that occur every year over the life of the [p]roject.”
For the foregoing reasons, we reject Tsakopoulos’s argument that the County’s
analysis of the project’s construction-related emissions was deficient.
III
The County Did Not Fail To Analyze Human Health Impacts
CEQA requires disclosure of a project’s direct and cumulative environmental
effects, among other things, “on human beings, either directly or indirectly.” (§ 21083,
subd. (b)(3).) Tsakopoulos argues the County “failed to analyze the human health
impacts associated with the [p]roject’s significant and unavoidable impacts from criteria
pollutants,” as required by Friant Ranch. (Boldface omitted.) We disagree.
We first deny Tsakopoulos’s request for judicial notice, then discuss our Supreme
Court’s Friant Ranch decision, and finally conclude the final report and supporting
administrative record provided sufficient information to advise the public as to why the
County was unable to correlate the project’s criteria pollutant emissions to human health
impacts.
A
Tsakopoulos’s Request For Judicial Notice Is Denied
As in the trial court, Tsakopoulos asks this court to take judicial notice of
Sacramento Metro Air Quality Management District’s (Air District) “draft ‘Guidance to
Address the Friant Ranch Ruling For CEQA Projects In The Sac Metro Air District’
dated December 2019” and the newsletter to which the document was attached. (Some
capitalization omitted, italics added.) Tsakopoulos asserts the documents are subject to
judicial notice under: (1) Evidence Code section 452, subdivision (c) “because it is an
official act of an executive department agency of the State of California . . . and part of
the records and files of a state administrative agency”; (2) Evidence Code section 452,
subdivision (h) “because its veracity is not reasonably subject to dispute and is capable of
43
immediate and accurate determination by resort to sources of reasonably indisputable
accuracy”; and (3) Evidence Code section 453, which provides, “ ‘[T]he trial court shall
take judicial notice of any matter specified in [Evidence Code s]ection 452 if a party
requests it and: (a) [g]ives each adverse party sufficient notice of the request, through the
pleadings or otherwise, to enable such adverse parties to prepare to meet the request; and
(b) furnishes the Court with sufficient information to enable it to take judicial notice of
the matter.’ ” Tsakopoulos argues that “[w]hile [the document was] still in draft form
when the [final report] was certified, the guidance document provided a wealth of
information the County could have used to assess and disclose the [p]roject’s impacts on
human health.”
We decline to take judicial notice of the document. “[T]he law generally
applicable to traditional mandamus actions challenging quasi-legislative administrative
decisions” applies equally to CEQA cases. (Western States Petroleum Assn. v. Superior
Court (1995) 9 Cal.4th 559, 575; id. at p. 574.) “ ‘ “The general rule” ’ in [administrative
mandamus] actions is that judicial review ‘ “is conducted solely on the record of the
proceeding before the administrative agency” ’ ” and “[a] reviewing court may receive
additional evidence only if that evidence ‘in the exercise of reasonable diligence, could
not have been produced or . . . was improperly excluded at the hearing before’ the
administrative agency.” (Sierra Club v. California Coastal Com. (2005) 35 Cal.4th 839,
863.) Tsakopoulos has made no attempt to show the exception to the general rule applies
here. We thus confine our review to the administrative record.
B
The Friant Ranch Decision
Tsakopoulos believes the final report suffers from the same deficiencies as the
environmental impact report in Friant Ranch because “the County failed to make a
‘reasonable effort’ to quantify or explain how the significant and unavoidable impacts
from criteria pollutants to be caused by long-term [p]roject operations would impact
44
human health.” To set the issue up for analysis, we first summarize our Supreme Court’s
Friant Ranch decision.
In Friant Ranch, our Supreme Court found inadequate the County of Fresno’s
discussion regarding the public health impacts associated with air pollutants that the
project was expected to generate. (Friant Ranch, supra, 6 Cal.5th at p. 519.) In that
environmental impact report, the County of Fresno laid out the estimated “ ‘long-term
area and operational emissions’ ” at build out for particulate matter 10 microns in
diameter or smaller, reactive organic gases, and nitrogen oxides. (Id. at p. 517.) The
County of Fresno explained the estimated emissions were substantially greater than the
thresholds of significance for each of those categories and the “ ‘air pollutants would
have a significant adverse effect on air quality.’ ” (Ibid.) The County of Fresno provided
background information about ozone and particulate matter 10 microns in diameter or
smaller and “ ‘a paragraph about the adverse health effects associated with the
pollutant.’ ” (Ibid.) “ ‘The discussion of the adverse health effects, however, was not
connected to the levels of the pollutant that would be emitted by the completed project.
Instead, the discussion of adverse health effects was general in nature.” (Ibid.)
Our Supreme Court found this analysis inadequate. The court noted, “The
[environmental impact report] does include some discussion of the health impacts of
various pollutants and attempts to provide an explanation for its lack of specificity. It
offers a general discussion of adverse health effects associated with certain [p]roject-
related pollutants. Notably, it also recognized that the County [of Fresno] suffers from
the ‘most severe’ ozone problems in the state and acknowledged the relationship between
adverse ambient air quality and certain health risks to the respiratory system that could
affect asthmatics, children, and healthy adults. These adverse effects, the draft
[environmental impact report] observed, could include ‘breathing and respiratory
symptoms, aggravation of existing respiratory and cardiovascular diseases, alterations to
the immune system, carcinogenesis, and premature death.’ The [environmental impact
45
report] explained, however, that a more detailed analysis of health impacts [wa]s not
possible at this early planning phase. According to the [environmental impact report],
‘[h]ealth [r]isk [a]ssessments are typically prepared for inclusion in development specific
project [environmental impact reports] when certain types of development commonly
known to have the potential to result in a human health risk are being proposed
(automobile fueling stations [for example]). Due to the broad nature of the planning
approvals analyzed in this [environmental impact report], it [wa]s not possible to conduct
a human health risk assessment based on specific proposed uses at specific locations
within the boundaries of the [p]roject [a]rea because such specific information has not
been determined.’ ” (Friant Ranch, supra, 6 Cal.5th at p. 519.)
Our Supreme Court found the analysis inadequate because, “Although the
[environmental impact report] generally outline[d] some of the unhealthy symptoms
associated with exposure to various pollutants, it d[id] not give any sense of the nature
and magnitude of the ‘health and safety problems caused by the physical changes’
resulting from the [p]roject as required by the CEQA guidelines.” (Friant Ranch, supra,
6 Cal.5th at p. 522.) The court acknowledged, “Perhaps it was not possible to do more,”
but explained, “even in that case, [it] would have found the [environmental impact report]
insufficient because it failed to explain why it was not feasible to provide an analysis that
connected the air quality effects to human health consequences.” (Ibid.) The court held,
“The [environmental impact report] must provide an adequate analysis to inform the
public how its bare numbers translate to create potential adverse impacts or it must
adequately explain what the agency does know and why, given existing scientific
constraints, it cannot translate potential health impacts further.” (Id. at p. 521.)
46
C
The Record Discloses Why It Was Not Feasible For The County To Correlate
The Project’s Emissions With Specific Human Health Impacts
Tsakopoulos believes the final report inadequately analyzes the human health
impacts associated with the project’s impacts from criteria pollutants because the County
failed to “ ‘explain why’ ” it could not provide that analysis “ ‘in a manner reasonably
calculated to inform the public of the scope of what is and what is not yet known about
the [p]roject’s impacts.’ ” (Quoting Friant Ranch, supra, 6 Cal.5th at p. 520.) We
disagree.
In the final report, the County discussed acute health effects associated with
exposure to ozone, nitrogen dioxide, and respirable particulate matter with an
aerodynamic diameter of 10 micrometers or less. As to ozone, the County wrote, “Acute
health effects of ozone exposure include increased respiratory and pulmonary resistance,
cough, pain, shortness of breath, and lung inflammation. Chronic health effects include
permeability of respiratory epithelia and possibility of permanent lung impairment
[citation]. Emissions of the ozone precursors [reactive organic cases] and [oxides of
nitrogen] have decreased over the past two decades across California because of more
stringent motor vehicle standards and cleaner burning fuels [citation].” As to nitrogen
dioxide, the County wrote, “Acute health effects of exposure to [nitrogen dioxide]
include[] coughing, difficulty breathing, vomiting, headache, eye irritation, chemical
pneumonitis, or pulmonary edema, breathing abnormalities, cough, cyanosis, chest pain,
rapid heartbeat, and death. Chronic health effects include chronic bronchitis and
decreased lung function [citation].” Finally, as to particulate matter, the County wrote,
“Acute health effects of [respirable particulate matter with an aerodynamic diameter of
10 micrometers or less] exposure include breathing and respiratory symptoms,
aggravation of existing respiratory and cardiovascular diseases, and premature death.
47
Chronic health effects include alterations to the immune system and carcinogenesis
[citation].”
Further, in the section where the County addressed the methodology underlying its
air quality analysis, the County discussed our Supreme Court’s decision in Friant
Ranch. 7 The final report states: “The case reviewed the long-term, regional air quality
analysis contained in the [environmental impact report] for the proposed Friant Ranch
project. . . . The [c]ourt ruled that the air quality analysis failed to adequately disclose the
nature and magnitude of long-term air quality impacts from emissions of criteria
pollutants and precursors ‘in sufficient detail to enable those who did not participate in its
preparation to understand and consider meaningfully the issues the proposed project
raises.’ The [c]ourt noted that the air quality analysis did not provide a discussion of the
foreseeable adverse effects of project-generated emissions on Fresno County’s likelihood
of exceeding the [national ambient air quality standards] and [California ambient air
quality standards] for criteria air pollutants nor did it explain a connection between the
project’s emissions and deleterious health impacts. Moreover, as noted by the [c]ourt, the
[environmental impact report] did not explain why it was not ‘scientifically possible’ to
determine such a connection. The [c]ourt concluded that ‘because the [environmental
impact report] as written makes it impossible for the public to translate the bare numbers
provided into adverse health impacts or to understand why such translation is not possible
at this time,’ the [environmental impact report’s] discussion of air quality impacts was
inadequate. In response to the Friant Ranch [d]ecision, this analysis adheres to [the Air
District’s] Friant Ranch Interim Recommendation, which serves as the district’s
7 The final report erroneously cited to the appellate court’s decision in that case—
i.e., Sierra Club v. County of Fresno (2014) 226 Cal.App.4th 704⸺that was affirmed in
part and reversed in part by Friant Ranch, supra, 6 Cal.5th 502. The discussion,
however, pertained to our Supreme Court’s decision in Friant Ranch.
48
temporary guidance until a final methodology has been developed and approved
[citation]. At the time of writing th[e] [final report], [the Air District] ha[d] not adopted a
permanent guidance document; however, it [wa]s reasonably foreseeable that [the Air
District] could release such guidance in early 2020. A discussion or explanation of how
this analysis considers this court guidance is provided below.” (Boldface & underlining
omitted, italics added & omitted.)
The County subsequently provided a summary of common air quality modeling
tools and programs, “[c]onsistent with [the Air District’s] Friant Ranch Interim
Recommendation.” (Italics omitted.) The County identified various models and tools
that were “considered but dismissed from use in the analysis.” The County explained,
“OFFROAD, a model developed by [the Air Board] to evaluate emissions from off-road
sources, was not used in this analysis because it is not comprehensive and lacks
emissions forecasts for certain types of equipment that would be in use with the [p]roject.
As such, it would not provide a reasonable evaluation of [p]roject impacts. [The United
States Environmental Protection Agency’s] AERMOD was not used because it is best
suited to model the movement of plumes from stationary sources, which the [p]roject
does not include. [The Air Board’s Hotspots Analysis and Reporting Program] was not
used for the valuation of the [p]roject’s criteria air pollutants—the pollutants of
consideration in the Friant Ranch [d]ecision—because it is best suited to estimate health
impacts of [toxic air contaminants] exposure from stationary sources.
“[The compressive air quality model] was not used in the analysis because it is
more applicable to the modeling of emissions on a regional scale (e.g., city, county,
multicounty, air basin) rather than at the project level. Additionally, while [the
compressive air quality model] may be capable of tracking emission dispersal, the
vulnerability of populations is based on individual factors such as life stage (i.e., infants,
children, and older persons are more sensitive), preexisting cardiovascular or respiratory
disease, and genetic polymorphisms. These data are unavailable; therefore, the degree
49
and magnitude of resulting health impacts from exposure to air pollution is unknown. As
such, the magnitude of health impacts cannot be confidently estimated and [the
compressive air quality model] was not used.” (Boldface & underlining omitted, italics
added.)
The Air District’s Friant Ranch Interim Recommendation (Recommendation) cited
and relied upon by the County in the final report is part of the administrative record. The
Recommendation provides: “The [Air District] does not currently have a methodology
that would correlate the expected air quality emissions of projects to the likely health
consequences of the increased emissions. The [Air District] is in the process of
developing a methodology to assess these impacts, and anticipates releasing it in the fall
of 2019. In the interim, agencies should follow the Friant [Ranch] [c]ourt’s advice to
explain in meaningful detail why this analysis is not yet feasible.” (Italics added.) It
continues, “Because of the complexity of ozone formation, the pounds or tons of
emissions from a proposed project in a specific geographical location do[] not equate to a
specific concentration of ozone formation in a given area, because in addition to emission
levels, ozone formation is affected by atmospheric chemistry, geography, and weather.
Secondary formation of particulate matter is very similar to the complexity of ozone
formation, and localized impacts of directly emitted particulate matter do not always
equate to local particulate matter concentrations due to transport of emissions. The
analysis should explain that because air district attainment plans and supporting air model
tools are regional in nature, they do not allow for analysis of the health impacts of
specific projects on any given geographic location.”
The local air district explained, “CEQA thresholds are a tool [the Air District] uses
to obtain emission reductions from development projects to support attainment of the
[f]ederal and [s]tate ambient air quality standards. This protects public health in the
overall region, but there is currently no methodology to determine the impact of
emissions on concentration levels in specific geographic areas.” The Air District
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recommended that the lead agency consider the application of various tools and explain
why those tools are not useful in assessing specific health impacts of a project. The Air
District further noted, “[N]either [it] nor any other air district currently have
methodologies that would provide [l]ead [a]gencies and CEQA practitioners with a
consistent, reliable, and meaningful analysis to correlate specific health impacts that may
result from a proposed project’s mass emissions.” It did, however, advise: “There is an
array of information on health impacts related to exposure to ozone and particulate matter
emissions published by the [United States Environmental Protection Agency] and the
California Air Resources Board. Health studies are used by these agencies to set the
[f]ederal and [s]tate ambient air quality standards. A more general discussion of health
impacts related to air pollution is also available on www.sparetheair.com and in the [Air
District’s] Guide to Air Quality Assessment in Sacramento County. None of the health-
related information can be directly correlated to the pounds/day or tons/year of emissions
estimated from a single, proposed project.” (Italics & fns. omitted.) The Air District
wrote that the Recommendation was intended “to assist lead agencies and practitioners
with CEQA document preparation until [it] develops a methodology that provides a
consistent, reliable and meaningful analysis to address the [c]ourt’s direction on
correlating health impacts to a project’s emissions.”
Taken together, the County’s discussion in the final report and the information
contained in the Recommendation upon which it relied provided the public with an
explanation for the lack of specificity in correlating potential health impacts with the
project’s estimated emissions. The County discussed the general acute health effects
associated with exposure to ozone, nitrogen dioxide, and respirable particulate matter
with an aerodynamic diameter of 10 micrometers or less, citing to information gathered
from the United States Environmental Protection Agency and the Air Board. The County
then explained it was adhering to the Recommendation in response to the Friant Ranch
decision, in which our Supreme Court “concluded that ‘because the [environmental
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impact report] as written makes it impossible for the public to translate the bare numbers
provided into adverse health impacts or to understand why such translation is not possible
at this time,’ the [environmental impact report’s] discussion of air quality impacts was
inadequate.” (Boldface & underlining omitted.)
In the Recommendation, the Air District explained the complexity associated with
ozone and particulate matter formation and “that because air district attainment plans and
supporting air model tools are regional in nature, they do not allow for analysis of the
health impacts of specific projects on any given geographic location.” The Air District
further explained “there is currently no methodology to determine the impact of
emissions on concentration levels in specific geographic areas” and “[n]one of the health-
related information can be directly correlated to the pounds/day or tons/year of emissions
estimated from a single, proposed project.” The Air District recommended that the lead
agency consider the application of various tools and explain why those tools are not
useful in assessing specific health impacts of a project. The County did so. It explained
why different models and tools were dismissed from use in the analysis because they
could not assist in analyzing the impacts.
This information was sufficient to inform the public “why it was not feasible to
provide an analysis that connected the air quality effects to human health consequences”
(Friant Ranch, supra, 6 Cal.5th at p. 522) and “what the agency d[id] know and why,
given existing scientific constraints, it c[ould not] translate potential health impacts
further” (id. at p. 521). The discussion of the project’s air quality impacts was thus
legally adequate.
Tsakopoulos asserts the County “d[id] not analyze other modeling tools that may
be available to the County.” But Tsakopoulos has identified no other particular model
that the County could have considered. Nor did Tsakopoulos submit evidence during the
administrative process to show that any other pertinent model exists.
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Tsakopoulos further argues the Recommendation is insufficient to provide the
public with pertinent information regarding the inability to correlate the level of
emissions to health impacts because “although the [County] here purported to provide a
discussion of the reasons emissions could not be correlated with health effects [citation],
the record nonetheless demonstrates otherwise, as Tsakopoulos showed in [its] [o]pening
[b]rief.” Nothing in Tsakopoulos’s brief demonstrates that the County could have
correlated emissions with health effects. Tsakopoulos merely asserts the County could
have used some of the rejected models because the models did not need to provide
scientific certainty. We decline to substitute our judgment for that of the lead agency; the
County sufficiently explained why it did not use the various models and tools.
Tsakopoulos’s assertions to the contrary are speculative. We further disregard the
citations in a footnote in Tsakopoulos’s opening brief to documents purportedly available
on the United States Environmental Protection Agency’s and the Centers for Disease
Control and Prevention’s websites. As explained ante, our review is based on the
documents in the administrative record.
For the foregoing reasons, we conclude the County complied with Friant Ranch in
explaining why it could not correlate the project’s estimated emissions with potential
health impacts.
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DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1)-(2).)
/s/
ROBIE, Acting P. J.
We concur:
/s/
MAURO, J.
/s/
RENNER, J.
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