Center for Biological Diversity v. Cal. Dept. Fish & Wildlife , 62 Cal. 4th 204 ( 2015 )

Filed 11/30/15
IN THE SUPREME COURT OF CALIFORNIA
CENTER FOR BIOLOGICAL )
DIVERSITY et al., )
)
Plaintiffs and Respondents, )
) S217763
v. )
) Ct.App. 2/5 B245131
CALIFORNIA DEPARTMENT OF )
FISH AND WILDLIFE, )
) Los Angeles County
Defendant and Appellant; ) Super. Ct. No. BS131347
)
)
THE NEWHALL LAND )
AND FARMING COMPANY, )
)
Real Party in Interest )
and Appellant. )
____________________________________)
This case presents three issues regarding the adequacy of an environmental
impact report for a large land development in northwest Los Angeles County, each
issue arising under the California Environmental Quality Act (CEQA; Pub.
Resources Code, § 21000 et seq.): (1) Does the environmental impact report
validly determine the development would not significantly impact the environment
by its discharge of greenhouse gases? (2) Are mitigation measures adopted for
protection of a freshwater fish, the unarmored threespine stickleback, improper
because they involve taking of the fish prohibited by the Fish and Game Code?
(3) Were plaintiffs‘ comments on two other areas of disputed impact submitted too
late in the environmental review process to exhaust their administrative remedies
under Public Resources Code section 21177?
We conclude, first, that as to greenhouse gas emissions the environmental
impact report employs a legally permissible criterion of significance—whether the
project was consistent with meeting statewide emission reduction goals—but the
report‘s finding that the project‘s emissions would not be significant under that
criterion is not supported by a reasoned explanation based on substantial evidence.
Second, we conclude the report‘s mitigation measures calling for capture and
relocation of the stickleback, a fully protected species under Fish and Game Code
section 5515, subdivision (b)(9), themselves constitute a taking prohibited under
subdivision (a) of the same statute. Finally, we hold that under the circumstances
of this case plaintiffs exhausted their administrative remedies regarding certain
claims of deficiency by raising them during an optional comment period on the
final report.
I. FACTUAL AND PROCEDURAL BACKGROUND
The California Department of Fish and Wildlife (DFW, formerly the
Department of Fish and Game) and the United States Army Corps of Engineers
prepared a joint environmental impact statement/environmental impact report (the
EIR)1 for two natural resource plans (the ―Resource Management and
1 Federal participation in environmental evaluation was called for under the
National Environmental Policy Act (NEPA; 42 U.S.C. § 4321 et seq.) because the
proposed infrastructure requires permits from federal agencies. Both CEQA and
NEPA provide for cooperation between state and federal agencies in
environmental review of projects, including by the preparation of joint documents.
(Pub. Resources Code, §§ 21083.6, 21083.7; 42 U.S.C. § 4332.) We generally
refer to the joint document prepared in this case simply as the EIR because we
discuss solely issues arising under CEQA.
2
Development Plan‖ and the ―Spineflower Conservation Plan‖) related to a
proposed land development called Newhall Ranch. To be developed over about
20 years on almost 12,000 acres along the Santa Clara River west of the City of
Santa Clarita, the proposed Newhall Ranch would consist of up to 20,885 dwelling
units housing nearly 58,000 residents as well as commercial and business uses,
schools, golf courses, parks and other community facilities. The project applicant
and owner of Newhall Ranch is real party in interest the Newhall Land and
Farming Company (Newhall).
Newhall Ranch‘s potential environmental impacts were previously studied
by the County of Los Angeles in connection with the county‘s 2003 approval of a
land use plan for the proposed development; the present EIR draws on but is
independent of the environmental documentation for that approval. DFW acted as
the lead state agency in preparing the EIR because the project (i.e., the Resource
Management and Development Plan and the Spineflower Conservation Plan)
called for DFW‘s concurrence in a streambed alteration agreement and issuance of
incidental take permits for protected species. Although DFW has direct authority
only over biological resource impacts from the project, the agency attempts in the
EIR to evaluate all environmental impacts from the project and the Newhall Ranch
development that would be facilitated by project approval.
DFW and the United States Army Corps of Engineers (the Corps), the lead
federal agency, issued a draft EIR in April 2009 and a final EIR in June 2010. In
December 2010, DFW certified the EIR, made the findings required by CEQA as
to significant impacts, mitigation, alternatives and overriding considerations, and
approved the project. Of relevance here, DFW found that the project could
significantly impact the unarmored threespine stickleback but that adopted
mitigation measures would avoid or substantially lessen that impact, and that
―taking into account the applicant‘s design commitments and existing regulatory
3
standards,‖ Newhall Ranch‘s emissions of greenhouse gases would have a less
than significant impact on the global climate.
Plaintiffs challenged DFW‘s actions by a petition for writ of mandate.2 The
superior court granted the petition on several grounds. The Court of Appeal
reversed, rejecting all of plaintiffs‘ CEQA claims. We granted plaintiffs‘ petition
for review.
II. DISCUSSION
The general principles governing our review of DFW‘s actions can be
simply stated. In reviewing an agency‘s nonadjudicative determination or
decision for compliance with CEQA, we ask whether the agency has prejudicially
abused its discretion; such an abuse is established ―if the agency has not proceeded
in a manner required by law or if the determination or decision is not supported by
substantial evidence.‖ (Pub. Resources Code, § 21168.5.)3 In determining
whether there has been an abuse of discretion, we review the agency‘s action, not
the trial court‘s decision. ―[I]n that sense appellate judicial review under CEQA is
de novo.‖ (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho
Cordova (2007) 40 Cal. 4th 412, 427 (Vineyard Area Citizens).)
On particular questions of CEQA compliance, however, the standard of
review depends on ―whether the claim is predominantly one of improper
procedure or a dispute over the facts.‖ (Vineyard Area Citizens, supra, 40 Cal.4th
at p. 435.) ―While we determine de novo whether the agency has employed the
2 Plaintiffs are the Center for Biological Diversity, Friends of the Santa Clara
River, Santa Clarita Organization for Planning the Environment, California Native
Plant Society, and Wishtoyo Foundation/Ventura Coastkeeper.
3 All further unspecified statutory references are to the Public Resources
Code.
4
correct procedures, . . . 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 EIR 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.‘ (Laurel Heights [Improvement Assn. v. Regents of University of
California (1988)] 47 Cal.3d [376,] 393.)‖ (Ibid.)
A. The EIR’s Determination the Project’s Greenhouse Gas Emissions
Will Not Have a Significant Environmental Impact
1. Background
In California‘s landmark legislation addressing global climate change, the
California Global Warming Solutions Act of 2006, Statutes 2006, Chapter 488,
page 3419 (enacting Assem. Bill No. 32 (2005–2006 Reg. Sess.); hereafter
referred to by its common shorthand name, A.B. 32), our Legislature emphatically
established as state policy the achievement of a substantial reduction in the
emission of gases contributing to global warming. (Health & Saf. Code,
§§ 38500, 38501.) More specifically, A.B. 32 calls for reduction of such
emissions to 1990 levels by the year 2020. (Health & Saf. Code, § 38550.) The
law designates the California Air Resources Board (the Air Board) as the state
agency charged with regulating greenhouse gas emissions (id., § 38510) and calls
for the Air Board to coordinate with other state agencies to implement the state‘s
reduction goal (id., § 38501, subd. (f)).
Under A.B. 32, the Air Board was required to determine as accurately as
possible the statewide level of greenhouse gas emissions in 1990 and to approve
on that basis a statewide emissions limit to be achieved by 2020. (Health & Saf.
Code, §38550) The Air Board was required to prepare and approve by January 1,
2009, a ―scoping plan‖ for achieving the ―maximum technologically feasible and
5
cost-effective‖ reductions in greenhouse gas emissions by 2020. (Id., § 38561,
subd. (a).)
In its 2008 Climate Change Scoping Plan, the Air Board explained that
―[r]educing greenhouse gas emissions to 1990 levels means cutting approximately
30 percent from business-as-usual emission levels projected for 2020, or about 15
percent from today‘s levels.‖ (Air Resources Bd., Climate Change Scoping Plan
(Dec. 2008) Executive Summary, p. ES-1 (Scoping Plan).) The Scoping Plan then
set out a ―comprehensive array of emissions reduction approaches and tools‖ to
meet the goal, 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. (Id., pp. ES-3—ES-4.)
The Scoping Plan‘s ―business as usual‖ model is important here, as it
formed the basis for the present EIR‘s greenhouse gas significance analysis. 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 (MMTCO2E). (Scoping Plan, supra, at p. 5.) In the Scoping
Plan, the board estimated emissions by economic sector in the period 2002–2004,
finding they totaled 469 MMTCO2E 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 MMTCO2E. (Id., p. 13.) The
target of 427 MMTCO2E is about 29 percent below the 2020 forecast of 596
MMTCO2E, giving the Air Board the 30 percent reduction goal quoted earlier.
The Scoping Plan‘s 2020 forecast is referred to as a ―business-as-usual‖
projection because it assumes no conservation or regulatory efforts beyond what
6
was in place when the forecast was made. It ―represent[s] the emissions that
would be expected to occur in the absence of any GHG [greenhouse gas]
reductions actions.‖ (Scoping Plan, supra, appen. F, Cal.‘s Greenhouse Gas
Emissions Inventory, p. F-3.) 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.‖ (Id., p. F-4.)
Neither A.B. 32 nor the Air Board‘s Scoping Plan set out a mandate or
method for CEQA analysis of greenhouse gas emissions from a proposed project.
A 2007 CEQA amendment, however, required the preparation, adoption and
periodic update of guidelines for mitigation of greenhouse gas impacts. (Stats.
2007, ch. 185, § 1, p. 2330, adding Pub. Resources Code, § 21083.05.) In 2010,
the Natural Resources Agency adopted a new CEQA Guideline on Determining
the Significance of Impacts from Greenhouse Gas Emissions. (Cal. Code Regs.,
tit. 14, § 15064.4.)4
The new guideline provides that a lead agency should attempt to ―describe,
calculate or estimate‖ the amount of greenhouse gases the project will emit, but
recognizes that agencies have discretion in how to do so. (Guidelines, § 15064.4,
subd. (a).) It goes on to provide that when assessing the significance of
4 The CEQA Guidelines (Guidelines), promulgated by the state Natural
Resources Agency and found in title 14 of the California Code of Regulations,
section 15000 et seq., 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. (Vineyard Area Citizens, supra, 40 Cal.4th at p. 428,
fn. 5; Laurel Heights Improvement Assn. v. Regents of University of
California (1993) 6 Cal. 4th 1112, 1123.)
7
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) Whether the
project emissions exceed a threshold of significance that the lead agency
determines applies to the project[;] [¶] (3) The extent to which the project
complies with regulations or requirements adopted to implement a statewide,
regional, or local plan for the reduction or mitigation of 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, an EIR must be prepared
for the project.‖ (Id., subd. (b).)
2. The EIR’s Significance Determination
In order to evaluate the project‘s greenhouse gas emissions impact, the EIR
attempts to quantify the emissions currently generated on the project site in its
existing uses and the emissions that would be generated by full development of the
Newhall Ranch community. Annual emissions from the existing uses (primarily
oil wells and agriculture) are estimated at 10,272 metric tons of CO2, which the
EIR conservatively treats as zero for purposes of the impact analysis. The annual
greenhouse gas emissions from Newhall Ranch at full build-out are projected to be
269,053 metric tons of CO2 equivalent (MTCO2E).
The EIR asserts that while this annual emissions increase of 269,053
MTCO2E is ―an obvious change to existing, on-site conditions,‖ the global nature
of climate change and the ―absence of scientific and factual information‖ on the
significance of particular amounts of greenhouse gas emissions make the change
8
―[in]sufficient to support a significance determination.‖ The EIR accordingly goes
on to consider ―whether the proposed Project‘s emissions . . . would impede the
State of California‘s compliance with the statutory emissions reduction mandate
established by AB 32.‖
The EIR‘s method for determining whether the project would impede
achievement of A.B. 32‘s goals is modeled on the Air Board‘s use, in its 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). As explained earlier, the Scoping Plan
forecasted statewide greenhouse gas emissions under a business-as-usual scenario
in which no additional regulatory actions were taken to reduce emissions. The
EIR does the same for Newhall Ranch, estimating at 390,046 MTCO2E per year
the emissions ―if the proposed Project and resulting development were constructed
consistent with [the Air Board‘s] assumptions for the CARB 2020 NAT [no action
taken, or business as usual] scenario.‖ Because the EIR‘s estimate of actual
annual project emissions (269,053 MTCO2E) is 31 percent below its
business-as-usual estimate (390,046 MTCO2E), exceeding the Air Board‘s
determination of a 29 percent reduction from business as usual needed statewide,
the EIR concludes the project‘s likely greenhouse gas emissions will not impede
achievement of A.B. 32‘s goals and are therefore less than significant for CEQA
purposes.
3. Analysis
We consider whether DFW abused its discretion in determining the
project‘s greenhouse gas emissions would not have a significant environmental
impact, either because it failed to proceed in the manner required by CEQA or
9
because it made the no significant impact determination without the support of
substantial evidence in the administrative record. (§ 21168.5.)
Plaintiffs contend the EIR‘s no significant impact conclusion resulted from
use of a legally improper baseline for comparison. Relying on this court‘s
decision in Communities for a Better Environment v. South Coast Air Quality
Management Dist. (2010) 48 Cal. 4th 310 (Communities for a Better Environment),
in which we disapproved the defendant district‘s use of pollutant emission levels
allowed under prior permits—but not reflecting actual existing conditions—as a
comparative baseline for a CEQA significance evaluation, plaintiffs argue DFW
erred in determining significance by comparison to the hypothetical business-as-
usual scenario rather than by comparison to existing greenhouse gas emissions on
the project site.
DFW contends it properly relied on methodology devised by the Air Board,
the state agency with greatest expertise on climate change. Newhall defends the
EIR‘s approach and conclusion extensively, arguing that DFW acted within its
discretion under Guidelines section 15064.4 in adopting compliance with A.B.
32‘s goals as its significance criterion and that both DFW‘s choice of methodology
and its conclusion of no significant impact should be reviewed only for support by
substantial evidence.
We begin with the broadest question posed: Did DFW abuse its discretion
in adopting consistency with A.B. 32‘s reduction goals as its significance criterion
for the project‘s greenhouse gas emissions? We review this issue de novo, as it is
predominantly a legal question of correct CEQA procedure. (Communities for a
Better Environment, supra, 48 Cal.4th at p. 319; Vineyard Area Citizens, supra, 40
Cal.4th at p. 435.)
Before considering the principal statutory and regulatory provisions
governing CEQA analysis of greenhouse gas emissions (§ 21083.05; Guidelines,
10
§ 15064.4), we address two related aspects of the greenhouse gas problem that
inform our discussion of CEQA significance.
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.‖ (§21083, subd. (b)(2); see Guidelines,
§ 15064, subd. (h)(1).) ―With respect to climate change, an individual project‘s
emissions will most likely not have any appreciable impact on the 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.‖
(Crockett, Addressing the Significance of Greenhouse Gas Emissions Under
CEQA: California’s Search for Regulatory Certainty in an Uncertain World (July
2011) 4 Golden Gate U. Envtl. L.J. 203, 207–208 (hereafter Addressing the
Significance of Greenhouse Gas Emissions).)
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 the present residential and
commercial development, which are designed to accommodate longterm growth in
California‘s population and economic activity, this fact gives rise to an argument
11
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.
The EIR makes this point in its response to plaintiff Center for Biological
Diversity‘s comments on the greenhouse gas significance analysis: ―[W]hen
location does not matter (such as in the case of GHG emissions), evaluation of
project significance via an efficiency metric is appropriate. [¶] [F]or a global
environmental issue (such as climate change), utilizing an absolute number as a
significance criterion equates to attempting to use CEQA to discourage population
growth. Of note, the future residents and occupants of development enabled by
Project approval would exist and live somewhere else if this Project is not
approved. Whether ‗here or there,‘ GHG emissions associated with such
population growth will occur.‖
These considerations militate in favor of consistency with meeting A.B.
32‘s statewide goals as a permissible significance criterion for project emissions.
Meeting our statewide reduction goals does not preclude all new development.
Rather, the Scoping Plan—the state‘s roadmap for meeting A.B. 32‘s target—
assumes continued growth and depends on increased efficiency and conservation
in land use and transportation from all Californians. (See Scoping Plan, supra,
pp. ES-1 [meeting the A.B. 32 goal ―means reducing our annual emissions of 14
tons of carbon dioxide equivalent for every man, woman and child in California
down to about 10 tons per person by 2020‖]; id. at pp. 15 [―Every part of
California‘s economy needs to play a role in reducing greenhouse gas emissions‖],
42 [outlining energy efficiency measures for both new and existing buildings].)
To the extent a project incorporates efficiency and conservation measures
sufficient to contribute its portion of the overall greenhouse gas reductions
12
necessary, one can reasonably argue that the project‘s impact ―is not ‗cumulatively
considerable,‘ because it is helping to solve the cumulative problem of greenhouse
gas emissions as envisioned by California law.‖ (Addressing the Significance of
Greenhouse Gas Emissions, supra, 4 Golden Gate U. Envtl. L.J. at p. 210.)
Given the reality of growth, some greenhouse gas emissions from new
housing and commercial developments are inevitable. The critical CEQA
question is the cumulative significance of a project‘s greenhouse gas emissions,
and from a climate change point of view it does not matter where in the state those
emissions are produced. Under these circumstances, evaluating the significance of
a residential or mixed use project‘s greenhouse gas emissions by their effect on the
state‘s efforts to meet its longterm goals makes at least as much sense as
measuring them against an absolute numerical threshold.
Using consistency with A.B. 32‘s statewide goal for greenhouse gas
reduction, rather than a numerical threshold, as a significance criterion is also
consistent with the broad guidance provided by section 15064.4 of the CEQA
Guidelines. As the issuing agency explained, section 15064.4 was drafted to
reflect ―the existing CEQA principle that there is no iron-clad definition of
‗significance.‘ ‖ (Natural Resources Agency, Final Statement of Reasons for
Regulatory Action: Amendments to the State CEQA Guidelines Addressing
Analysis and Mitigation of Greenhouse Gas Emissions Pursuant to SB 97 (Dec.
2009) p. 20 (Final Statement of Reasons); cf. Pub. Res. Code, § 21083.05
[requiring periodic update of CEQA Guidelines for mitigation of greenhouse gas
emissions to reflect new information or criteria established by Air Resources
Board].) Section 15064.4 was not intended to closely restrict agency discretion in
choosing a method for assessing greenhouse gas emissions, but rather ―to assist
lead agencies‖ in investigating and disclosing ―all that they reasonably can‖
13
regarding a project‘s greenhouse gas emissions impacts. (Final Statement of
Reasons, supra, at p. 20.)5
While Guidelines section 15064.4 states a lead agency ―should consider,‖
among other factors, ―[t]he extent to which the project may increase or reduce
greenhouse gas emissions as compared to the existing environmental setting‖ (id.,
subd. (b)(1)) and ―[w]hether the project emissions exceed a threshold of
significance that the lead agency determines applies to the project‖ (id., subd.
(b)(2)), the section does not mandate the use of absolute numerical thresholds to
measure the significance of greenhouse gas emissions. The factors listed in
subdivision (b) are not exclusive. They are rather intended ―to assist lead agencies
in collecting and considering information relevant to a project‘s incremental
contribution of GHG emissions and the overall context of such emissions.‖ (Final
Statement of Reasons, supra, at p. 24.)
The present EIR discloses the project‘s likely increase in emissions over the
existing environment, informing the reader that the project will increase
greenhouse gas emissions by 269,053 MTCO2E compared to the existing
environmental setting (Guidelines, §15064.4, subd. (b)(1)), but declines to
consider the impact significant based on the size of that increase alone ―because of
5 In an amicus curiae brief, the Natural Resources Agency argues that
because Guidelines section 15064.4 was not yet in force when DFW circulated its
draft EIR for public comment, the lead agency was not obliged to comply with
that regulation. Because we hold the regulation did not prohibit reliance on
consistency with A.B. 32‘s goals as a significance criterion (pp. 13-16), and
further hold DFW‘s use of a business-as-usual model was deficient for reasons
independent of Guidelines section 15064.4 (post, pp. 19-23), we need not decide
whether the new Guideline section, which was operative March 18, 2010, applied
to the final EIR circulated in June 2010 and to DFW‘s December 2010 approval of
Newhall Ranch. (See Guidelines, § 15007 [prospective application of
amendments to Guidelines].)
14
the absence of scientific and factual information regarding when particular
quantities of greenhouse gas emissions become significant.‖ As for a significance
threshold (id., subd. (b)(2)), the EIR asserts that no agency had adopted an
applicable threshold.
Plaintiffs challenge these statements as insufficient to justify the EIR‘s
choice of methodology, noting that California air pollution control officials and air
quality districts have made several proposals for numerical thresholds. But given
that multiple agencies‘ efforts at framing greenhouse gas significance issues have
not yet coalesced into any widely accepted set of numerical significance
thresholds, but have produced ―a certain level of consensus‖ on the value of A.B.
32 consistency as a criterion (Addressing the Significance of Greenhouse Gas
Emissions, supra, 4 Golden Gate U. Envtl. L.J. at p. 209), we cannot conclude
DFW‘s discretionary choice of A.B. 32 consistency as a significance criterion for
this project violated Guidelines section 15064.4, subdivisions (b)(1) or (b)(2).
Subdivision (b)(3) of Guidelines section 15064.4 states the lead agency
should also consider ―[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.‖ A.B. 32 did not create a set
of ―regulations or requirements‖ implementing a ―plan‖ (Guidelines, § 15064.4,
subd. (b)(3)); indeed, it is not a plan but rather a statement of policies and
objectives. The Scoping Plan adopted pursuant to A.B. 32 is a plan for reducing
greenhouse gas emissions, but does not itself establish the regulations by which it
is to be implemented; rather, it sets out how existing regulations, and new ones yet
to be adopted at the time of the Scoping Plan, will be used to reach A.B. 32‘s
emission reduction goal. At the time the Natural Resources Agency promulgated
Guidelines section 15064.4, the agency explained that the Scoping Plan ―may not
be appropriate for use in determining the significance of individual projects . . .
15
because it is conceptual at this stage and relies on the future development of
regulations to implement the strategies identified in the Scoping Plan.‖ (Final
Statement of Reasons, supra, at pp. 26–27.)
In short, neither A.B. 32 nor the Scoping Plan establishes regulations
implementing, for specific projects, the Legislature‘s statewide goals for reducing
greenhouse gas emissions. Neither constitutes a set of ―regulations or
requirements adopted to implement‖ a statewide reduction plan within the
meaning of Guidelines section 15064.4, subdivision (b)(3). That guideline,
however, does not expressly or impliedly prohibit a lead agency from using the
A.B. 32 goals themselves to determine whether the project‘s projected greenhouse
gas emissions are significant. As noted by the Natural Resources Agency in its
amicus curiae brief, ―a discussion of a project‘s consistency with the State‘s long-
term climate stabilization objectives . . . will often be appropriate . . . under
CEQA,‖ provided the analysis is ―tailored . . . specifically to a particular project.‖
Indeed, to proceed in this manner is consistent with CEQA‘s ―inherent recognition
. . . that if a plan is in place to address a cumulative problem, a new project‘s
incremental addition to the problem will not be ‗cumulatively considerable‘ if it is
consistent with the plan and is doing its fair share to achieve the plan‘s goals.‖
(Addressing the Significance of Greenhouse Gas Emissions, supra, 4 Golden Gate
U. Envtl. L.J. at pp. 210–211.) For this reason as well, we conclude DFW‘s
choice to use that criterion does not violate CEQA. The only published Court of
Appeal decisions to consider this question have reached the same conclusion,
albeit with little discussion. (Friends of Oroville v. City of Oroville (2013) 219
Cal. App. 4th 832, 841; Citizens for Responsible Equitable Environmental
Development v. City of Chula Vista (2011) 197 Cal. App. 4th 327, 335–336.)
A qualification regarding the passage of time is in order here. Plaintiffs do
not claim it was improper for this EIR, issued in 2010, to look forward only to
16
2020 for a guidepost on reductions in greenhouse gas emissions, and we therefore
do not consider the question whether CEQA required the EIR to address the state‘s
goals beyond 2020. Nevertheless, over time consistency with year 2020 goals will
become a less definitive guide, especially for longterm projects that will not begin
operations for several years. An EIR taking a goal-consistency approach to CEQA
significance may in the near future need to consider the project‘s effects on
meeting longer term emissions reduction targets.6
Having concluded DFW did not proceed in violation of CEQA by its choice
of A.B. 32 consistency as a significance criterion, we proceed to plaintiff‘s
contention that the 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.
In Communities for a Better Environment, supra, 48 Cal. 4th 310, a refinery
sought a permit to conduct a new process using some new and some existing
equipment, including existing boilers used for steam generation, each of which
was subject to an existing permit setting its maximum rate of operation. (Id. at
6 Executive Order No. S-3-05, signed by Governor Schwarzenegger on June
1, 2005, set reduction targets of 1990 levels by 2020 and 80 percent below 1990
levels by 2050. A.B. 32 codified the 2020 goal but did not indicate any intent to
abandon the 2050 goal; indeed, the Legislature cited the executive order and
indicated its intent that the climate policy efforts the order initiated continue.
(Health & Saf. Code, § 38501, subd. (i).) More recently, in an update to the
Scoping Plan, the Air Board noted the need for steep post-2020 reductions and
proposed the state adopt a ―strong mid-term target‖ for the year 2030, in the range
of 35–50 percent below 1990 levels. (Air Resources Board, First Update to the
Climate Change Scoping Plan: Building on the Framework (May 2014), p. 34.)
Executive Order No. B-30-15, signed by Governor Brown on April 29, 2015,
endorsed the effort to set ―an interim target of emission reductions for 2030.‖
Pending legislation would codify this additional goal, directing the Air Board to
establish a 2030 limit equivalent to 40 percent below 1990 levels. (Sen. Bill No.
32 (2015–2016 Reg. Sess.) § 4.)
17
pp. 317–318.) The negative declaration the regional air district prepared for the
project, in determining the significance of the project‘s nitrogen oxide emissions,
treated emissions that could be generated by the existing boilers operating together
at their maximum permitted capacity (a condition that did not occur in normal
operation) as part of the baseline for environmental review rather than as part of
the project. (Id. at p. 318.) Although the negative declaration acknowledged that
actual nitrogen oxide emissions would increase under the project by an amount
that would normally be considered significant, the declaration determined the
emissions were not significant because they were below what could have been
emitted by the refinery‘s boilers under the existing permits. (Ibid.)
We held the air district‘s approach violated the rule expressed in Guidelines
section 15125, subdivision (a), as well as in case law, that the comparative
baseline for a significance determination should normally be the existing physical
conditions in the project‘s vicinity. (Communities for a Better Environment,
supra, 48 Cal.4th at pp. 320–322.) ―By comparing the proposed project to what
could happen, rather than to what was actually happening, the District set the
baseline not according to ‗established levels of a particular use,‘ but by ‗merely
hypothetical conditions allowable‘ under the permits. [Citation.] Like an EIR, an
initial study or negative declaration ‗must focus on impacts to the existing
environment, not hypothetical situations.‘ [Citation.]‖ (Id. at p. 322.)
Contrary to plaintiffs‘ arguments, we do not see the EIR‘s approach here as
comparable to that of the negative declaration in Communities for a Better
Environment. Unlike the air district in Communities for a Better Environment,
DFW does not claim its business-as-usual model represented ―the physical
environmental conditions . . . as they exist‖ at the time of environmental analysis.
(Guidelines, § 15125, subd. (a).) Rather, it employs a hypothetical business-as-
usual emissions model merely as a means of comparing the project‘s projected
18
emissions to the statewide target set under the Scoping Plan. The business-as-
usual emissions model is used here as a comparative tool for evaluating efficiency
and conservation efforts, not as a significance baseline.
The percentage reduction from business as usual identified by the Scoping
Plan is a measure of the reduction effort needed to meet the 2020 goal, not an
attempt to describe the existing level of greenhouse gas emissions. Similarly, the
EIR employs its calculation of project reductions from business-as-usual
emissions in an attempt to show the project incorporates efficiency and
conservation measures sufficient to make it consistent with achievement of A.B.
32‘s reduction goal, not to show the project will not increase greenhouse gas
emissions over those in the existing environment. As discussed earlier, distinctive
aspects of the greenhouse gas problem make consistency with statewide reduction
goals a permissible significance criterion for such emissions. Using a hypothetical
scenario as a method of evaluating the proposed project‘s efficiency and
conservation measures does not violate Guidelines section 15125 or contravene
our decision in Communities for a Better Environment.
Notwithstanding this conclusion, we agree with plaintiffs that DFW abused
its discretion in finding, on the basis of the EIR‘s business-as-usual comparison,
that the project‘s greenhouse gas emissions would have no cumulatively
significant impact on the environment. We reach this conclusion because the
administrative record discloses no substantial evidence that Newhall Ranch‘s
project-level reduction of 31 percent in comparison to business as usual is
consistent with achieving A.B. 32‘s statewide goal of a 29 percent reduction from
business as usual, a lacuna both dissenting opinions fail to address. Even using the
EIR‘s own significance criterion, the EIR‘s analysis fails to support its conclusion
of no significant impact.
19
The 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 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 DFW or
Newhall have cited in the administrative record indicates the required percentage
reduction from business as usual is the same for an individual project as for the
entire state population and economy.
Plaintiffs put forward one ready reason to suspect that the percent reduction
is not the same, and that in fact a greater degree of reduction may be needed from
new land use projects than from the economy as a whole: Designing 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. The California Attorney
General‘s Office made this point while commenting on an air district‘s greenhouse
gas emissions reduction plan, in a letter one of the plaintiffs brought to DFW‘s
attention in a comment on the EIR: ―The [air district] Staff Report seems to
assume that if new development projects reduce emissions by 29 percent
compared to ‗business as usual,‘ the 2020 statewide target of 29 percent below
‗business as usual‘ will also be achieved, but it does not supply evidence of this.
Indeed, it seems that new development must be more GHG-efficient than this
average, given that past and current sources of emissions, which are substantially
less efficient than this average, will continue to exist and emit.‖ In its
20
administrative response to this comment, DFW observed that the Scoping Plan did
call for emissions reductions from existing buildings (though these are not
separately quantified) and that one air district‘s analysis of the Scoping Plan
indicated the ―land-use driven‖ economic sector would be required to make only a
26.2 percent reduction from business as usual.
DFW‘s responses to comments on the EIR 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 Scoping Plan. In its brief, Newhall
characterizes this question as one of competing expert opinions, on which the
courts must defer to the lead agency. But Newhall points to no expert opinion
stating generally that the Scoping Plan contemplates the same emission reductions
from new buildings as from existing ones, or more particularly that the 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.
Even if the state-wide and economy-wide percentage reduction set out in
the Scoping Plan were shown to be generally appropriate for use as a criterion of
significance for individual projects, the EIR‘s conclusion that greenhouse gas
emissions will be less than significant would still lack substantial supporting
evidence. This is because the EIR makes an unsupported assumption regarding
statewide density averages used in the Scoping Plan, an assumption that if
incorrect could result in a misleading business-as-usual comparison. As plaintiffs
point out, the EIR‘s business-as-usual scenario assumes residential density equal
to that currently found in the Santa Clarita Valley. Because Newhall Ranch as
designed would have greater residential density than the existing average for the
Santa Clarita Valley, the EIR makes a downward adjustment from business as
usual in projected vehicle miles traveled, and consequently in greenhouse gas
emissions from mobile sources (a substantial part of the total emissions). As far as
21
the EIR reveals, however, the Scoping Plan‘s statewide business-as-usual model is
not necessarily based on residential densities equal to the Santa Clarita Valley
average.
The Scoping Plan‘s business-as-usual projection of vehicle miles traveled
in 2020 was derived using an established growth model for such projections.
(Scoping Plan, supra, appen. F, at pp. F-3—F-4.) But nothing DFW or Newhall
points to in the administrative record shows the statewide density assumptions
used in that model mirror conditions in the Santa Clarita Valley. To the extent the
Scoping Plan‘s business-as-usual scenario assumes population densities greater
than the Santa Clarita Valley density assumed in the EIR‘s business-as-usual
projection, the EIR‘s comparison of project reductions from business as usual to
reductions demanded in the Scoping Plan will be misleading. The administrative
record does not establish a firm ground for the efficiency comparison the EIR
makes and thus, for this reason as well, does not substantially support the EIR‘s
conclusion that Newhall Ranch‘s 31 percent emissions savings over business as
usual satisfies the report‘s significance criterion of consistency with the Scoping
Plan‘s 29 percent statewide savings by 2020.
At bottom, the EIR‘s deficiency stems from taking a quantitative
comparison method developed by the 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 EIR simply assumes that the
level of effort required in one context, a 29 percent reduction from business as
usual statewide, will suffice in the other, a specific land use development. From
the information in the administrative record, we cannot say that conclusion is
22
wrong, but neither can we discern the contours of a logical argument that it is
right. The analytical gap left by the EIR‘s failure to establish, through substantial
evidence and reasoned explanation, a quantitative equivalence between the
Scoping Plan‘s statewide comparison and the EIR‘s own project-level comparison
deprived the EIR of its ― ‗sufficiency as an informative document.‘ ‖ (Laurel
Heights Improvement Assn. v. Regents of University of California, supra, 47
Cal.3d at p. 392.)
Justice Corrigan argues our conclusion on this point, requiring DFW to
support its chosen quantitative method for analyzing significance with evidence
and reasoned argument, is inconsistent with the deferential nature of our review.
(Conc. & dis. opn. of Corrigan, J., post, at p. 4.) We disagree. 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—here,
the cumulative impact of the project on global warming—will not be significant.
(See Guidelines, § 15064, subd. (f)(5) [substantial evidence to support a finding on
significance includes ―facts, reasonable assumptions predicated upon facts, and
expert opinion supported by facts,‖ but not ―[a]rgument, speculation, [or]
unsubstantiated opinion‖].)
Nor is Justice Corrigan correct that our analysis ―assumes project-level
reductions in greenhouse gas emissions must be greater than the reductions
California is seeking to achieve statewide.‖ (Conc. & dis. opn. of Corrigan, J.,
post, at p. 2.) As discussed just above (ante, pp. 22–23), we hold only that DFW
erred in failing to substantiate its assumption that the Scoping Plan‘s statewide
23
measure of emissions reduction can also serve as the criterion for an individual
land use project.
We further agree with plaintiffs that DFW‘s failure to provide substantial
evidentiary support for its no significant impact conclusion was prejudicial, in that
it deprived decision makers and the public of substantial relevant information
about the project‘s likely impacts. (Neighbors for Smart Rail v. Exposition Metro
Line Construction Authority (2013) 57 Cal. 4th 439, 463 (lead opn. of Werdegar,
J.); Environmental Protection Information Center v. California Dept. of Forestry
& Fire Protection (2008) 44 Cal. 4th 459, 485–486; Sierra Club v. State Bd. of
Forestry (1994) 7 Cal. 4th 1215, 1236–1237.) In this EIR, DFW employed the
business-as-usual comparison as its sole criterion of significance. In the absence
of substantial evidence to support the EIR‘s no-significance finding, as noted
above, the EIR‘s readers have no way of knowing whether the project‘s likely
greenhouse gas emissions impacts will indeed be significant and, if so, what
mitigation measures will be required to reduce them. This is not the sort of
―[i]nsubstantial or merely technical omission[]‖ that can be overlooked in deciding
whether to grant relief. (Neighbors for Smart Rail v. Exposition Metro Line
Construction Authority, supra, at p. 463.)
We briefly address some of the potential options for DFW on remand and
for other lead agencies faced with evaluating the cumulative significance of a
proposed land use development‘s greenhouse gas emissions. While the burden of
CEQA‘s mandate in this context can be substantial, methods for complying with
CEQA do exist. We do not, of course, guarantee that any of these approaches will
be found to satisfy CEQA‘s demands as to any particular project; what follows is
merely a description of potential pathways to compliance, depending on the
circumstances of a given project.
24
First, although we have found the particular comparison made here lacking
in support, and although doubt has been cast on the Scoping Plan‘s project-level
appropriateness (see Final Statement of Reasons, supra, at pp. 24–25), a business-
as-usual comparison based on the Scoping Plan‘s methodology may be possible.
On an examination of the data behind the 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.
Second, a lead agency might assess consistency with A.B. 32‘s goal in
whole or part by looking to compliance with regulatory programs designed to
reduce greenhouse gas emissions from particular activities. (See Final Statement
of Reasons, supra, at p. 64 [greenhouse gas emissions ―may be best analyzed and
mitigated at a programmatic level.‖].) To the extent a project‘s design features
comply with or exceed the regulations outlined in the Scoping Plan and adopted
by the Air Board or other state agencies, a lead agency could appropriately rely on
their use as showing compliance with ―performance based standards‖ adopted to
fulfill ―a statewide . . . plan for the reduction or mitigation of greenhouse gas
emissions.‖ (Guidelines, § 15064.4, subds. (a)(2), (b)(3); see also id., § 15064,
subd. (h)(3) [determination that impact is not cumulatively considerable may rest
on compliance with previously adopted plans or regulations, including ―plans or
regulations for the reduction of greenhouse gas emissions‖].)
A significance analysis based on compliance with such statewide
regulations, however, only goes to impacts within the area governed by the
regulations. That a project is designed to meet high building efficiency and
conservation standards, for example, does not establish that its greenhouse gas
emissions from transportation activities lack significant impacts. (Final Statement
of Reasons, supra, at p. 23.) Although transportation accounts for almost 40
25
percent of the state‘s greenhouse gas emissions, and transportation emissions are
affected by the location and density of residential and commercial development,
the Scoping Plan does not propose statewide regulation of land use planning but
relies instead on local governments. (Scoping Plan, supra, at pp. 11, 27.)
Local governments thus bear the primary burden of evaluating a land use
project‘s impact on greenhouse gas emissions. Some of this burden can be
relieved by using geographically specific greenhouse gas emission reduction plans
to provide a basis for the tiering or streamlining of project-level CEQA analysis.
Guidelines section 15183.5, added in 2010 along with section 15064.4, explains in
detail how a programmatic effort such as ―a general plan, a long range
development plan, or a separate plan to reduce greenhouse gas emissions‖ (id.,
§ 15183.5, subd. (a)) may, if sufficiently detailed and adequately supported, be
used in later project-specific CEQA documents to simplify the evaluation of the
project‘s cumulative contribution to the effects of greenhouse gas emissions (id. at
subd. (b)). (Guidelines, § 15183.5, subds. (a), (b).) The Scoping Plan encourages
local jurisdictions to develop ― ‗climate action plans‘ ‖ or greenhouse gas
― ‗emissions reduction plans‘ ‖ for their geographic areas, and several jurisdictions
have adopted or proposed such plans as tools for CEQA streamlining. (Final
Statement of Reasons, supra, at p. 65; see, e.g., City of Milpitas, Climate Action
Plan and Qualified Greenhouse Gas Reduction Strategy (May 2013), p. 1-1; City
of San Bernardino, Sustainability Master Plan (Public Review Draft, Aug. 2012),
p. 4.)
In addition, CEQA expressly allows streamlining of transportation impacts
analysis for certain land use projects based on metropolitan regional ―sustainable
communities strategies.‖ Under follow-up legislation to A.B. 32 (Stats. 2008, ch.
728, p. 5065, commonly known as S.B. 375) each metropolitan planning
organization in the state is to prepare a ―sustainable communities strategy‖ or
26
alternative plan to meet regional targets set by the Air Board for greenhouse gas
emissions from cars and light trucks. (Gov. Code, § 65080, subd. (b)(2).) CEQA
documents for certain residential, mixed use and transit priority projects that are
consistent with the limits and policies specified in an applicable sustainable
communities strategy need not additionally analyze greenhouse gas emissions
from cars and light trucks. (§§ 21155.2, 21159.28; Guidelines, § 15183.5, subd.
(c).)
Third, a lead agency may rely on existing numerical thresholds of
significance for greenhouse gas emissions, though as we have explained (ante,
p. 14), use of such thresholds is not required. (Guidelines, § 15064.4, subd. (b)(2);
see, e.g., Bay Area Air Quality Management Dist. (BAAQMD), CEQA Guidelines
Update: Proposed Thresholds of Significance (May 3, 2010), pp. 8–21 [regional
air quality district for the San Francisco Bay Area proposes a threshold of 1100
MTCO2E in annual emissions as one alternative agencies may use in determining
CEQA significance for new land use projects].)7 Thresholds, it should be noted,
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
7 BAAQMD approved its greenhouse gas thresholds along with other CEQA
thresholds of significance in June 2010, but has refrained from recommending
their use pending the completion of litigation challenging its promulgation of
thresholds. (BAAQMD, CEQA Air Quality Guidelines (May 2012 update),
p. 2-5.) The litigation is currently pending in this court (Cal. Building Industry
Association v. Bay Area Air Quality Management District, review granted Nov.
26, 2013, S213478), but the question we granted review to decide relates solely to
certain BAAQMD thresholds for analyzing the effect of existing pollution sources
on projects bringing more users or residents to a location. The validity of the
greenhouse gas source thresholds is not under examination in this court. (Id.,
order Nov. 26, 2013.)
27
significance of an impact independently. (Guidelines, § 15064.7, subd. (a)); Mejia
v. City of Los Angeles (2005) 130 Cal. App. 4th 322, 342.)
For a large land use project such as Newhall Ranch, using a numerical
threshold may result in a determination of significant greenhouse gas emission
impacts. In that circumstance, the lead agency must adopt feasible mitigation
measures or project alternatives to reduce the effect to insignificance; to the extent
significant impacts remain after mitigation, the agency may still approve the
project with a statement of overriding considerations. (§§ 21002, 21002.1, subd.
(b), 21081; Guidelines, §§ 15091, 15093, 15126.6.) Were DFW to determine on
remand that adding hundreds of thousands of tons of greenhouse gasses to the
atmosphere has a cumulatively significant effect, therefore, it would not
necessarily be required to disapprove the project on that basis. The agency could
instead adopt whatever feasible alternatives and mitigation measures exist beyond
the efficiency and conservation features already incorporated in the project design
and, to the extent those measures do not reduce the cumulative impact of the
project below the chosen threshold of significance, DFW could add a discussion of
these impacts, and the countervailing benefits of the project, to the statement of
overriding considerations the agency previously adopted in approving the project.
B. The EIR’s Mitigation Measures for Protection of Unarmored
Threespine Stickleback
Finding that infrastructure construction and building of Newhall Ranch
could result in significant impacts to special status wildlife and plant species,
DFW adopted numerous biological impact mitigation measures. Mitigation
measures BIO-44 and BIO-46 provide for collection and relocation of special
status fish, including the unarmored threespine stickleback, during construction in,
or diversion of, the Santa Clara River. Such actions would be performed by
United States Fish and Wildlife Service personnel or their agents.
28
We agree with plaintiffs that specifying these actions as mitigation in an
EIR violates the Fish and Game Code section 5515‘s prohibition on authorizing
the taking or possession of fully protected fish in mitigation of project impacts
under CEQA. DFW may conduct or authorize capture and relocation of the
stickleback as a conservation measure to protect the fish and aid in its recovery,
but the agency may not rely in a CEQA document on the prospect of capture and
relocation as mitigating a project‘s adverse impacts.
Fish and Game Code section 5515 lists 10 species of ―fully protected‖ fish,
including the unarmored threespine stickleback, Gasterosteus aculeatus
williamsoni. (Id., subd. (b)(9).) Subdivision (a) of that statute provides in
pertinent part: ―(1) Except as provided in Section 2081.7 or 2835, fully protected
fish or parts thereof may not be taken or possessed at any time. . . . However, the
department may authorize the taking of those species for necessary scientific
research, including efforts to recover fully protected, threatened, or endangered
species. . . . [¶] (2) As used in this subdivision, ‘scientific research’ does not
include any actions taken as part of specified mitigation for a project, as defined
in Section 21065 of the Public Resources Code.‖ (Fish & G. Code, § 5515, subd.
(a), italics added.)8
8 Parallel provisions govern the taking or possession of other fully protected
animals. (See Fish & G. Code, §§ 3511 [fully protected birds], 4700 [fully
protected mammals], 5050 [fully protected reptiles and amphibians].) The fully
protected species laws are distinct from the more familiar endangered species laws
(id., §§ 2050–2115.5), though many species are covered by both statutory
schemes.
The listed exceptions to Fish and Game Code section 5515‘s taking
prohibition, Fish and Game Code sections 2081.7 and 2835, deal respectively with
taking resulting from an agreement on Colorado River water and taking provided
for in a ―natural community conservation plan.‖ Neither exception applies here.
29
Fish and Game Code section 86 defines ―take‖ as to ―hunt, pursue, catch,
capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.‖ (Italics added.)
This definition governs construction of the Fish and Game Code generally unless
particular provisions or context require otherwise. (Id., § 2.)
In light of the definition of take in section 86 as including an animal‘s
―pursu[it],‖ ―catch,‖ or ―capture,‖ the capture and relocation of stickleback
contemplated by mitigation measures BIO-44 and BIO-46 violates Fish and Game
Code section 5515. Although trapping and transplantation are defined as possible
conservation measures for endangered species under Fish and Game Code section
2061,9 the stickleback, as a fully protected species, is subject to the stricter
prohibitions against taking set forth in Fish and Game Code section 5515,
including an express prohibition on taking as mitigation for a project under
CEQA. (Id., subd. (a)(2).)
DFW and Newhall argue the references to ―pursue,‖ ―catch‖ and ―capture‖
in Fish and Game Code section 86 should be understood to exclude trapping and
transplantation done for conservation purposes. Because the stickleback is listed
as an endangered species (Cal. Code Regs., tit. 14, § 670.5, subd. (a)(2)(L)) as
well as a fully protected one, they argue, the prohibition on taking stickleback as a
fully protected species must be harmonized with the Endangered Species Act‘s
permission to trap and transport endangered species for protective purposes. (Fish
9 Fish and Game Code section 2061, part of the California Endangered
Species Act, defines ―conservation‖ to mean ―all methods and procedures which
are necessary to bring any endangered species or threatened species to the point at
which the measures provided pursuant to this chapter are no longer necessary,‖
including ―research, census, law enforcement, habitat acquisition, restoration and
maintenance, propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem cannot be
otherwise relieved, may include regulated taking.‖ (Italics added.)
30
& G. Code, § 2061.) In the context of the Fish and Game Code‘s solicitude for
conservation of endangered and threatened species, the prohibition on taking
should, DFW maintains, be understood as referring to ―[a]ctivities . . . that
adversely affect fish and wildlife—not . . . activities intended to move fish and
wildlife out of harm‘s way.‖
We must reject the claim DFW may authorize, as CEQA mitigation, actions
to protect a fully protected species from harm when, as here, those actions are
otherwise prohibited as takings. The Legislature has expressly precluded this
interpretation of the statutes by providing, in Fish and Game Code section 5515,
subdivision (a), that permitted taking of a fully protected species for ―scientific
research‖ may include ―efforts to recover‖ the species but that such ―scientific
research‖ does not include ―any actions taken as part of specified mitigation for a
project‖ as defined in CEQA. We cannot give effect to this provision and at the
same time hold that DFW may, as CEQA mitigation, authorize the trapping and
transplantation of stickleback—actions that plainly call for the fish‘s ―catch,‖ or
―capture‖ (Fish & G. Code, § 86). That such catch or capture is intended to
protect the stickleback from harm caused by the project‘s construction is inherent
in its adoption as CEQA mitigation and is expressly barred under section 5515.
Legislative history supports our conclusion. The language allowing taking
for recovery efforts but not for CEQA mitigation was added to Fish and Game
Code section 5515, subdivision (a) in 2003. (Stats. 2003, ch. 735, § 4,
pp. 5521-5522.) As introduced on February 20, 2003, the bill simply defined
―scientific research‖ to include recovery efforts for fully protected species. (Sen.
Bill No. 412 (2003–2004 Reg. Sess.) as introduced Feb. 20, 2013.) An Assembly
committee analysis of the bill as introduced, explained that the Natural Resources
Agency secretary had testified that the fully protected species law‘s absolute
prohibition on taking had led to certain problems: ―1) Fully protected status
31
conflicts with recovery efforts because there is no allowance for management
pursuant to a recovery effort. For example, the fully protected species statute is in
direct conflict with regional, multi-species conservation planning, such as the
Natural Community Conservation Planning Program. [¶] 2) Fully protected status
does not allow for incidental take of species due to otherwise lawful activities. [¶]
3) The law does not provide for mitigation of fully protected species. Because
mitigation is not an option, the Department‘s only recourse is to initiate legal
proceedings to address conflicts with fully protected species.‖ (Assem. Com. on
Water, Parks & Wildlife, analysis of Sen. Bill No. 412 (2003–2004 Reg. Sess.) as
introduced Feb. 20, 2003, p. 2.) The analysis continued: ―According to the author
this measure is intended to address the problem identified by Secretary Nichols in
#1 above. In order to ensure broader recovery planning efforts can take place
some take may be necessary.‖ (Ibid.)
The bill was subsequently amended in the Assembly to add the proviso that
―scientific research‖ does not include ―any actions taken as part of specified
mitigation for a project, as defined in Section 21065 of the Public Resources
Code.‖ (Sen. Bill No. 412 (2003–2004 Reg. Sess.) as amended Aug. 28, 2003.) A
new committee analysis noted that the bill now ―[e]xcludes, from ‗scientific
research,‘ any actions taken to mitigate a project under the California
Environmental Quality Act (CEQA).‖ (Assem. Com. on Appropriations, analysis
of Sen. Bill No. 412 (2003–2004 Reg. Sess.) as amended Aug. 28, 2003, pp. 1-2.)
Though not explicitly noted in the legislative history, the August 28, 2003,
amendment was consistent with the earlier report‘s observation that, of the three
problems identified by Secretary Nichols, the bill was intended to address only the
first problem: the prohibition on taking members of a fully protected species
tended to hinder management programs for the species‘ recovery. (Assem. Com.
on Water, Parks & Wildlife, analysis of Sen. Bill No. 412 (2003–2004 Reg. Sess.)
32
as introduced Feb. 20, 2003, p. 2.) It was not aimed at the separate asserted
problem of mitigation of the effects other actions would have on a fully protected
species. (Ibid.) The August 28 amendment, by reaffirming the taking prohibition
as to CEQA mitigation measures, effectuated this distinction in legislative intent.
Consistent with this history and the statutory language, we read Fish and
Game Code section 5515, subdivision (a) as allowing the trapping and
transplantation of fully protected fish species as part of a species recovery
program, but not as mitigation for a project. Mitigating the adverse effect of a
land development project on a species is not the same as undertaking positive
efforts for the species‘ recovery, a distinction recognized in the 2003 legislation by
its explicit exclusion of CEQA mitigation measures from the definition of
scientific research. The Legislature evidently believed the prohibition on taking or
possessing fully protected species should be relaxed to permit the use of wildlife
management techniques needed for species recovery, but that agencies should not
be allowed to rely on the availability of such techniques in approving or carrying
out projects that would have significant adverse effects on a fully protected
species. We therefore say nothing to preclude DFW‘s use or authorization of
trapping and transplantation to protect the stickleback from threats to its survival
and recovery, as expressly allowed under Fish and Game Code section 5515,
subdivision (a)(1); based on subdivision (a)(2) of that statute, we hold only that
such actions may not be relied on or ―specified‖ as project mitigation measures
pursuant to CEQA.
In the context of Fish and Game Code section 5515, limiting the definition
of ―taking‖ — which includes but is not limited to hunting and killing animals
(Fish and G. Code, § 86) —to actions intended to harm a fully protected animal, as
DFW urges, would also render unnecessary, or at least very puzzling, the
Legislature‘s proviso that taking is not permitted as CEQA project mitigation.
33
(Id., subd. (a)(2).) Hunting and killing animals might sometimes be necessary as a
conservation measure, for example, to obtain biological samples or to relieve a
dangerous local population pressure, but one struggles to imagine the
circumstances in which a CEQA document would propose mitigating a project‘s
adverse impacts on a fully protected species by killing or otherwise intentionally
harming members of the species. If Fish and Game Code section 5515,
subdivision (a)(1)‘s prohibition on ―tak[ing] or possess[ing]‖ a fully protected fish
referred only to intentionally harmful acts, the Legislature would not likely have
thought it necessary to specify in subdivision (a)(2) that such taking or possession
could not be proposed as a means of mitigating adverse project effects.
In addition, narrowing Fish and Game Code section 86‘s definition of
―take‖ to actions intended to harm an animal could in theory allow unauthorized
persons found pursuing and catching a protected species to assert as a complete
defense that their intent was not to harm the animal but to restore or transplant it to
a safe habitat, a result we doubt very much the Legislature intended. We are loath
to adopt a construction that would, for example, sanction an amateur
conservationist capturing and moving a southern sea otter (fully protected under
Fish & G. Code, § 4700, subd. (b)(8)) from its established habitat to a cove where
the person believes it will be safer and healthier. On this point, Justice Chin
observes that the Legislature did not intend such a result for endangered species
any more than for fully protected ones. (Dis. opn. of Chin, J., post, at p. 13.) We
agree: the broad definition of ―take‖ in Fish and Game Code section 86 ensures
that DFW can maintain legal control over actions interfering with threatened,
endangered and fully protected animals even where those actions may not have
been intended to kill or hurt the animal.
DFW urges deference to its interpretation of Fish and Game Code
provisions, an area in which it has both expertise and substantial administrative
34
responsibility. We consider an agency‘s interpretation of statutes and regulations
in light of the circumstances, giving greater weight where the interpretation
concerns technical and complex matters within the scope of the agency‘s
expertise. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19
Cal. 4th 1, 12.) Even in substantive areas of the agency‘s expertise, however, our
deference to an agency‘s statutory interpretation is limited; determining statutes‘
meaning and effect is a matter ―lying within the constitutional domain of the
courts.‖ (Id. at p. 11.) That said, we acknowledge DFW‘s superior expertise in
the administration of the Fish and Game Code, and we would not lightly adopt an
interpretation of that code‘s provisions the department persuasively argued would
defeat its ability to pursue species conservation and recovery. Again, however, we
do not hold trapping and transplantation of fully protected fish species is
prohibited as part of a species recovery effort. We hold only that such actions may
not be specified as project mitigation measures in an EIR or other CEQA
document. Nothing we say precludes DFW from using its expertise and judgment
in determining, at any time, how best to protect a fully protected species from an
imminent threat to its habitat.
Justice Chin points out that Fish and Game Code section 2061, relating to
endangered species, refers separately to ―taking,‖ ―live trapping,‖ and
―transplantation,‖ implying these actions differ from one another. (Dis. opn., of
Chin, J., post, at pp. 10–11.) That this provision uses ―taking‖ in a limited sense
denoting mortality or other permanent removal from the ecosystem, a meaning far
narrower than the generally applicable definition of Fish and Game Code section
86, does not compel or even suggest the same limited meaning was intended in
Fish and Game Code section 5515, relating to fully protected fish species. Indeed,
we observe that a closely analogous statute, Fish and Game Code section 3511,
while prohibiting the taking or possession of fully protected birds, provides an
35
exception allowing permits for ―live capture and relocation‖ of such birds to
protect livestock, suggesting those actions would otherwise be within the statutory
prohibition on taking or possession, the same prohibition contained in Fish and
Game Code section 5515.
Justice Chin further argues our interpretation of Fish and Game Code
section 5515 as distinguishing between capture and transplantation performed for
conservation purposes and the same actions specified as CEQA mitigation
measures has ―little substance.‖ (Dis. opn. of Chin, J., post, at p. 9.) To the
contrary, we see a significant distinction between discussing in an EIR measures
that might be taken as part of an ongoing species recovery effort and specifying
those actions as binding mitigation measures upon which project approval is
conditioned. (See Guidelines § 15126.4, subd. (a)(2) [―Mitigation measures must
be fully enforceable through permit conditions, agreements, or other legally-
binding instruments.‖].) Decision makers and the public could well be influenced
in their evaluation of a project by the existence or nonexistence of such
enforceable mitigation measures.
C. Timeliness of Plaintiffs’ Comments on Cultural Resources and
Steelhead Smolt Impacts
The Court of Appeal held two of plaintiffs‘ challenges to the EIR,
regarding impacts on Native American cultural resources and on steelhead smolt
(juveniles), were not preserved because they were not timely brought to DFW‘s
attention in the administrative process. The issue turns on plaintiffs‘ compliance
with section 21177, which sets out the requirement that a CEQA claim be
administratively exhausted before forming the basis for a judicial challenge to the
agency‘s actions.
Section 21177, subdivision (a) provides that before an alleged ground for
noncompliance with CEQA may be brought to court it must have been ―presented
36
to the public agency orally or in writing by any person during the public comment
period provided by this division or prior to the close of the public hearing on the
project before the issuance of the notice of determination.‖ DFW held no public
hearing on final approval of the present project (the Resource Management and
Development Plan and the Spineflower Conservation Plan); the question is
therefore whether plaintiffs‘ claims regarding Native American cultural resources
and steelhead smolt were presented to DFW “during the public comment period
provided by [CEQA].‖ (Ibid.)
As noted earlier, what we have referred to as the EIR was actually a
combined environmental impact statement and environmental impact report
(EIS/EIR) prepared jointly under NEPA and CEQA by the Corps and DFW, the
lead federal and state agencies, respectively. (Ante, at pp. 2–3.) CEQA requires a
public comment period on the draft EIR, but not on the final EIR; a comment
period on the final EIR before project approval is optional with the lead agency.
(§ 21091, subd. (a); Guidelines, § 15089, subd. (b).) NEPA regulations, in
contrast, allow agencies and members of the public to submit comments on a final
EIS at any time before the final agency decision, which ordinarily may not be
issued earlier than 30 days after notice of the final EIS. (40 C.F.R. §§ 1503.1(b),
1506.10(b)(2).) In compliance with its federal obligations, the Corps published a
notice of availability of the final EIS/EIR, inviting public comments during the
period June 18, 2010 through July 19, 2010, later extended through August 3,
2010. Plaintiffs raised the disputed issues regarding Native American cultural
resources and steelhead smolt impacts in comment letters during this period.
Because plaintiffs‘ comments were made during the Corps-noticed
comment period for the final EIS/EIR, rather than during the earlier CEQA-
mandated period for comments on the draft EIS/EIR, DFW and Newhall contend
37
they came too late to preserve plaintiffs‘ claims under section 21177, subdivision
(a). Under the circumstances of this case, we disagree.
In the final EIR, DFW stated that while CEQA did not require a comment
period on it, DFW would make the final EIR available to the public ―at the time
the Corps begins its required 30-day public review.‖ In its findings on project
approval, DFW noted that ―CEQA allows, but does not require, public review of a
Final EIR‖ and that the Corps‘ 45-day comment period (extended from 30 days) is
―equivalent‖ to the 45-day period required by CEQA for draft EIR‘s submitted for
review by other agencies. The findings further explained that comments on the
final EIS/EIR were given to the applicant (Newhall) for preparation of draft
responses, that DFW ―coordinated with the Corps and the applicant during the
initial discussions‖ regarding these comments, and that ―[b]ased on the input
received from both DFG [now DFW] and the Corps, the applicant and its
consultant team completed responses to the comments.‖ In sum, ―DFG has
provided input and coordinated with the Corps and the applicant with respect to
the draft responses on the Final EIS/EIR.‖
On completion of the response and revision process, the lead agencies
together prepared an addendum containing portions of the final EIS/EIR that had
been modified in response to comments on that document. The agencies included
that addendum, together with the final EIS/EIR itself and the comments and
responses to comments, in their final decision documents. This addendum
adopted a new mitigation measure for Native American cultural resources, and the
responses by DFW to plaintiffs‘ comments on the final EIR include responses on
impacts on steelhead.
We need not decide whether every federally mandated comment period on
a final combined EIS/EIR also constitutes a CEQA comment period for purposes
of section 21177, subdivision (a). In this case, the lead state agency, DFW,
38
participated fully in the post-final EIS/EIR process, helping to prepare responses
to the comments received and including those comments and responsive changes
in the version of the final EIR it certified as compliant with CEQA when
approving the project. Where the lead agency under CEQA has treated a federal
comment period on a final EIS/EIR as an opportunity to receive additional
comments on CEQA issues as well and has responded to those comments and
included the responses in its final decision document, the lead agency has
effectively treated the federal period as an optional comment period on the final
EIR under Guidelines section 15089, subdivision (b). Such an optional comment
period is ―provided by‖ CEQA for purposes of section 21177. (See
Environmental Protection Information Center v. California Dept. of Forestry &
Fire Protection, supra, 44 Cal.4th at p. 484 [lead federal agency‘s notice of
availability of final EIS/EIR, which also invited comments to be sent to lead state
agency, reopened public comment period for CEQA purposes]; Galante Vineyards
v. Monterey Peninsula Water Management Dist. (1997) 60 Cal. App. 4th 1109,
1120 [―the phrase ‗during the public comment period provided by this division,‘
. . . includes optional comment periods.‖)
The purposes of requiring exhaustion of administrative remedies, as section
21177 does, are to lighten the judicial burden by providing a remedy at the
administrative level and, where a judicial remedy is nonetheless sought,
facilitating a complete record that draws on the administrative agency‘s expertise
and has already been sifted for relevant evidence. (Tomlinson v. County of
Alameda (2012) 54 Cal. 4th 281, 291.) In this case, where DFW independently
reviewed plaintiffs‘ comments on the final EIS/EIR, contributed its expertise to
the drafting of responses and revisions based on those comments, and included
those responses and revisions in the final version of the EIR it certified and relied
on in making its approval decision, the statute‘s purpose has been served. We
39
conclude the disputed comments were timely under section 21177, subdivision (a)
because they were submitted during a public comment period provided by CEQA.
The Court of Appeal, after holding plaintiffs had not administratively
exhausted their claims on these topics, went on to reject those claims on the
merits, finding the EIR‘s determinations to be supported by substantial evidence.
DFW and Newhall argue the Court of Appeal‘s judgment may be upheld on this
alternative ground, whereas plaintiffs insist the merits must be revisited because
the Court of Appeal‘s disregard for information presented in the comments it
deemed untimely tainted its evaluation of the merits. We leave for the appellate
court the question of whether its determinations on the merits require
reexamination.
III. CONCLUSION
We conclude, contrary to the holdings of the Court of Appeal, that DFW
abused its discretion by making the determination, without the support of
substantial evidence, that the project‘s greenhouse gas emissions would have no
significant impact, and in imposing biological resource mitigation measures that
call for the trapping and transplantation of a fully protected fish species. We
further conclude the Court of Appeal erred in holding plaintiffs failed to preserve
their claims regarding Native American cultural resource and steelhead smolt
impacts. On remand, the Court of Appeal shall decide whether, in light of our
exhaustion holding, the Native American cultural resource and steelhead smolt
claims warrant reexamination on the merits. The Court of Appeal shall further
decide, or remand for the superior court to decide, the parameters of the writ of
mandate to be issued. (See § 21168.9.)
Justice Chin suggests that by reversing and remanding in this case, we
inordinately delay the construction of Newhall Ranch and push its thousands of
potential residents into housing that ―will undoubtedly be far less green than this
40
project promises to be.‖ (Dis. opn. of Chin, J., post, at p. 15.) It is not the courts‘
role, of course, to decide where in the state new housing should be built, and our
review of a lower court‘s CEQA ruling does not turn on our independent
assessment of the project‘s environmental merits. Even if Newhall Ranch offered
the environmentally best means of housing this part of California‘s growing
population, CEQA‘s requirements for informing the public and decision makers of
adverse impacts, and for imposition of valid, feasible mitigation measures, would
still need to be enforced.
Nor is Justice Chin‘s assumption regarding the project‘s superlative
environmental profile necessarily supported by the record. As plaintiffs point out,
the hypothetical business-as-usual model used in the EIR to assess greenhouse gas
emissions counterfactually assumes the continuation of building and vehicle
efficiency standards and an electricity generation source mixture that have, in
actuality, been superseded by stricter standards and practices. The EIR‘s
calculation of a 31 percent reduction in comparison to this model therefore does
not mean Newhall Ranch would emit 31 percent fewer greenhouse gasses than
other mixed use projects that could actually be built under current standards.
Finally, one should not assume a sizeable new housing development planned for a
site relatively far from major urban centers, to be built largely on undeveloped
land with habitat for several sensitive species, will have comparatively minor
impacts either on greenhouse gas emissions or on fish and wildlife. The dissent‘s
claim that today‘s decision threatens the ―subver[sion]‖ of CEQA into a tool for
delay of a uniquely meritorious project (dis. opn. of Chin, J., post, at p. 13) is
neither warranted by the facts nor consonant with the scope of judicial review
under CEQA.
41
IV. DISPOSITION
The judgment of the Court of Appeal is reversed and the matter is
remanded to that court for further proceedings consistent with our opinion.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
42
CONCURRING AND DISSENTING OPINION BY CORRIGAN, J.
I agree with most of the majority opinion‘s holdings. Specifically, I agree
that mitigation measures described in the environmental impact report (EIR) for
the unarmored threespine stickleback would constitute a taking prohibited by the
Fish and Game Code. I also agree that the methodology used to assess the
significance of greenhouse gas emissions was consistent with the California
Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). The
Department of Fish and Wildlife (DFW) did not violate CEQA by using the
statewide emissions reduction goal in Assembly Bill No. 32 (2005-2006 Reg.
Sess.)1 as a significance criterion or by comparing Newhall Ranch‘s projected
emissions to a business-as-usual model instead of to a baseline of existing
emissions. (See maj. opn., ante, at pp. 17, 19.) Having determined the
methodology was permissible, however, the majority finds insufficient evidence
supporting DFW‘s application of it. Here our views diverge. Because the level of
detail the majority demands from this EIR is contrary to both our deferential
standard of review and our approval of the methodology used to assess greenhouse
gas significance, I respectfully dissent from that portion of its opinion.
A. Correlation with Statewide Goal
All members of the court agree the developers could use consistency with
Assembly Bill 32 as a threshold for determining the significance of greenhouse
gas emissions under CEQA. Assembly Bill 32 set a goal of reducing statewide
1 Statutes 2006, chapter 488, page 3419 (Assembly Bill 32).
emissions 29 percent from business as usual. Under the methodology we approve
today, if expected emissions from the project are ―consistent‖ with this statewide
goal, they are not significant for purposes of CEQA. Experts project that Newhall
Ranch will achieve a 31 percent reduction from business as usual, two percentage
points better than Assembly Bill 32‘s goal. Nevertheless, the majority concludes
this projection is insufficient to support a finding of consistency with Assembly
Bill 32 because the EIR does not explain how project-level reductions correlate
with statewide reductions.
The majority‘s analysis implicitly assumes project-level reductions in
greenhouse gas emissions must be greater than the reductions California is seeking
to achieve statewide. It reasons that, because new developments can incorporate
the most advanced technology, they may presumably achieve greater efficiency
than is possible through retrofitting existing buildings. Thus, considering all
greenhouse gas sources across the state, regulators may expect greater emissions
reductions from new developments. (See maj. opn., ante, at p. 20.) This argument
may be reasonable in the abstract, but in my view it is too amorphous a ground for
invalidating a carefully prepared and thorough EIR. Although lead agencies must
consider whether a project‘s impacts are ―cumulatively considerable‖ in light of
existing and future projects (Pub. Resources Code, § 21083, subd. (b)(2)), no
CEQA provision places the responsibility on developers to mitigate environmental
impacts caused entirely by other projects. Moreover, the majority does not
identify just how much better than the statewide goal new projects must be. The
―Scoping Plan‖ for Assembly Bill 32 did not suggest, let alone mandate, specific
efficiency levels for new development projects. Nor does the majority opinion
indicate what specific level of reduction would be sufficient for Newhall Ranch to
demonstrate consistency with Assembly Bill 32. It is not clear why a 31 percent
reduction, to be achieved by the one of the largest development projects in the
state‘s history, is necessarily inadequate.
2
The majority‘s substantial evidence conclusion would also seem to render
our approval of DFW‘s methodology illusory. Although the majority nominally
approves of determining CEQA significance by measuring a project‘s
improvements from business as usual against Assembly Bill 32‘s statewide goal, it
faults the EIR here for failing to demonstrate ―a quantitative equivalence between
the Scoping Plan‘s statewide comparison and the EIR‘s own project-level
comparison.‖ (Maj. opn., ante, at p. 23.) But we have no assurance it is even
possible to calculate how a statewide goal corresponds to specific, quantitative
efficiency measures for individual projects. The majority opinion discusses
several approaches for assessing the significance of greenhouse gas emissions.
However, only one option addresses the methodology actually used by DFW and
approved in this case. DFW assessed significance by comparing the project‘s
reduction of emissions from business as usual to Assembly Bill 32‘s goal for such
reductions statewide. According to the majority, the only way it ―may be
possible‖ to obtain a quantitative correlation between these business-as-usual
models is if ―an examination of the data behind the Scoping Plan‘s business-as-
usual model‖ allowed the lead agency ―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.‖ (Maj. opn., ante, at p. 25.)
The speculation that underlying data might yield a satisfactory answer gives little
practical aid to the agencies that will have to implement our decision on remand.
As Justice Chin observes, many experts from many different agencies have
scrutinized this project. (Dis. opn. of Chin, J., post, at pp. 4-5.) Despite their
efforts, there is no scientific consensus as to how large a reduction at the project
level is needed to establish consistency with Assembly Bill 32‘s statewide goal.
Under these circumstances, the lead agency had discretion to conclude that a
project-level reduction exceeding the statewide goal by two percentage points was
consistent with Assembly Bill 32 and demonstrated that greenhouse gas emissions
would not be significant for purposes of CEQA. (See Save Our Peninsula
3
Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal. App. 4th 99,
120.)
The majority‘s contrary conclusion is inconsistent with our deferential
standard of review. Under substantial evidence review, ― ‗the reviewing court
must resolve reasonable doubts in favor of the administrative finding and
decision.‘ ‖ (Laurel Heights Improvement Assn. v. Regents of University of
California (1988) 47 Cal. 3d 376, 393, italics added.) Our ―task is not to weigh
conflicting evidence and determine who has the better argument when the dispute
is whether adverse effects have been mitigated or could be better mitigated. We
have neither the resources nor scientific expertise to engage in such analysis, even
if the statutorily prescribed standard of review permitted us to do so.‖ (Ibid.)
Here, the lead agency determined the greenhouse gas emissions from Newhall
Ranch would not be significant for purposes of CEQA based on a methodology
this court now validates. On substantial evidence review, the burden was on
parties attacking the EIR to show that this determination was insupportable.
Specifically, they had to demonstrate that, despite being slightly better than
Assembly Bill 32‘s statewide goal, the project‘s 31 percent reduction in
greenhouse gas emissions is too low to be ―consistent‖ with Assembly Bill 32.
They have not done so.
B. Population Density Comparison
The majority opinion‘s second reason for rejecting the EIR‘s conclusion
about the significance of greenhouse gas emissions is both hyper technical and
insufficiently deferential to the lead agency‘s expertise.
The EIR‘s business-as-usual model assumes a population density equal to
that currently existing at ―full build out‖ in Santa Clarita Valley, where the project
is located. Because the project is designed to have a higher density than this
existing development, it is expected to significantly reduce greenhouse gas
emissions from business as usual. The majority opinion criticizes the EIR for
failing to correlate this comparison with the business-as-usual comparison used in
4
the Scoping Plan. It notes that, ―[t]o the extent‖ the Scoping Plan‘s business-as-
usual model is based on areas with higher population densities than Santa Clarita
Valley, the EIR‘s comparison of emissions reductions from those demanded in the
Scoping Plan would be misleading. (Maj. opn., ante, at p. 22.)
It is not immediately obvious that there is anything wrong with comparing
the Newhall Ranch project with development in the surrounding area. The
majority‘s criticism rests on assumptions about the Scoping Plan‘s business-as-
usual model, but technical details about that model are not in the record. Although
the majority opinion views this shortcoming as a lack of substantial evidence, I am
not convinced CEQA imposed a burden on the developer or lead agency to
research and document a one-to-one correspondence with all details of the
Scoping Plan‘s model. Again, the level of evidentiary support the majority
demands is inconsistent with our deferential standard of review.
C. Conclusion
I share Justice Chin‘s concerns about delay and the possibility that CEQA
compliance will become a moving target, impossible to satisfy. Here, the majority
nominally approves DFW‘s solution to a novel and difficult problem: how to
measure the significance of a project‘s greenhouse gas emissions. Yet, after
approving the methodology for assessing significance, the majority undermines
this outcome by challenging technical details that are inherent in that
methodology. Having approved of DFW‘s methodology, I would defer to its
conclusion that the Newhall Ranch project‘s emissions will fall below CEQA‘s
threshold of significance.
CORRIGAN, J.
5
DISSENTING OPINION BY CHIN, J.
I respectfully dissent. I would affirm the judgment of the Court of Appeal.
Its opinion, authored by Presiding Justice Turner, and joined by Justices Mosk and
Kriegler, contains an extraordinarily thorough and careful review of the issues and
reaches the correct result.
The majority decides three issues under the California Environmental
Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).
Regarding the first issue, I agree with the majority that the lead agencies —
the California Department of Fish and Wildlife (DFW) and the United States
Army Corps of Engineers — used a proper methodology in the environmental
impact report (EIR) to determine whether the development would significantly
impact the environment by its discharge of greenhouse gases. As the majority
notes, CEQA is not a population control measure. (Maj. opn., ante, at p. 12.) If
the development is not built, the 58,000 or so residents the planned community is
intended to house, along with the necessary infrastructure and the proposed
commercial enterprises, will be someplace else. Accordingly, the majority
correctly rejects the project opponents‘ argument that the only permissible method
is to compare the development with no development. It makes eminent sense, and
comes within the lead agencies‘ discretion, to compare the proposed
development‘s greenhouse gas emissions with the emissions projected in a
business-as-usual model to measure the emission reduction needed to comply with
legally established goals for greenhouse gas reductions. I disagree, however, with
the majority‘s conclusion that the EIR does not adequately explain why a
projected 31 percent reduction in greenhouse gas emissions is consistent with
legally mandated reduction goals.
Regarding the second issue, I disagree with the majority‘s holding that the
proposal to move the unarmored threespine stickleback fish out of harm‘s way is a
taking under the Fish and Game Code, and that, therefore, the EIR may not call the
program a mitigation measure.
Regarding the third issue, compliance with the time requirements for
making objections under CEQA is critically important so that litigation over an
EIR does not become a never-ending battle of attrition with ever-changing targets
for project opponents to aim for. However, under the very specific circumstances
of this case, including the fact that the EIR fully addresses the objections, I agree
with the majority that the Court of Appeal should not have found two of the
objections forfeited. But because the Court of Appeal also rejected the arguments
on the merits, convincingly showing that the EIR adequately considered the
objections, the error provides no basis to reverse the judgment.
A. Preliminary Comments
―The Legislature has made clear that an EIR is ‗an informational document‘
and that ‗[t]he purpose of an environmental impact report is to provide public
agencies and the public in general with detailed information about the effect which
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.]‖ (Laurel Heights Improvement Assn. v.
2
Regents of University of California (1988) 47 Cal. 3d 376, 391.) ―The EIR is also
intended ‗to demonstrate to an apprehensive citizenry that the agency has, in fact,
analyzed and considered the ecological implications of its action.‘ ‖ (Id. at p. 392,
quoting No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. 3d 68, 86.)
The EIR in this case is one of the longest ever prepared under CEQA —
which is appropriate, given that the project is one of the largest ever proposed in
California. It was prepared over a period of at least five years, with ample
opportunity for public input. The EIR does just what it is supposed to do. It has
fully informed those who are entrusted to make the decisions, as well as the
general public, of the project‘s environmental impacts. Now it is time finally to let
the decision makers make decisions.
As the majority summarizes, ―[t]o be developed over about 20 years on
almost 12,000 acres along the Santa Clara River west of the City of Santa Clarita,
the proposed Newhall Ranch would consist of up to 20,885 dwelling units housing
nearly 58,000 residents as well as commercial and business uses, schools, golf
courses, parks and other community facilities.‖ (Maj. opn., ante, at p. 3.)
After much community and regulatory input, the project also promises to be
very ―green,‖ with large reductions in the amount of greenhouse gas emissions to
be expected. The developer, the Newhall Land and Farming Company,
summarizes that, as documented in the EIR, the proposed development will reduce
greenhouse gas emissions ―by providing, for example, improved insulation and
ducting, low E glass, high efficiency heating and air conditioning, and radiant
barriers in attic spaces.‖ Additionally, it will rely on various other design features
to reduce the emissions, including:
―(a) close proximity of homes to jobs and services;
―(b) public transit;
―(c) trails, paseos, and pathways for walking and biking;
3
―(d) tree planting and native and drought-tolerant landscaping;
―(e) energy efficient lighting;
―(f) use of solar water heating for all Newhall Ranch recreational center
pools;
―(g) silver certification for the design and construction of Newhall Ranch
fire stations and public library consistent with the ‗Leadership in Energy and
Environmental Design‘ . . . standards;
―(h) comprehensive recycling;
―(i) park-and-ride lot, bus stops, transit station, bus transfer station; and
―(j) reservation of right-of-way for a Metrolink light rail line to facilitate
residents relying less on vehicle travel.‖
Neither the majority nor the project opponents dispute this summary.
The Newhall Ranch project has been thoroughly reviewed over a period of
many years, resulting in an extraordinarily thorough EIR. (The portion concerning
greenhouse gas emissions alone is hundreds of pages long.) After earlier litigation
delayed the proposed project for several years, work on the current EIR began
around 2005. After some five years of work, public comment, and revisions, the
final EIR was certified in 2010. As the amicus curiae brief supporting the project
filed by former Governors George Deukmejian, Pete Wilson, and Gray Davis
notes, at different times and during different steps in the review process, eight
different governmental agencies, representing every level of government, federal,
state, and local, have studied, imposed conditions on, and, ultimately, approved
the project: (1) the DFW, (2) the United States Army Corps of Engineers, (3) the
United States Environmental Protection Agency, (4) the United States Fish and
Wildlife Service, (5) the Los Angeles Regional Water Quality Control Board, (6)
the Los Angeles County Local Agency Formation Commission, (7) the Los
4
Angeles County Board of Supervisors, and (8) the Los Angeles County Regional
Planning Commission.
Each of these agencies has far greater expertise than this court in judging
the merits of the proposal and determining what mitigation measures are
appropriate and what conditions to impose. They also are responsible for planning
and managing California‘s inevitable future population growth. Now project
opponents have turned to the courts in their final effort to invalidate the 2010 EIR
and derail the project, culminating in this action. This court should be cautious
about overturning the considered judgment of these eight agencies. California‘s
environmental laws are not intended to prevent development that is needed to
accommodate the state‘s growing population. Instead they are designed to
encourage planned development by ensuring that decisions regarding how to
accommodate the state‘s growing population while protecting the environment are
informed. The instant project is very thoroughly planned, and the detailed and
careful EIR has fully informed the decision makers.
The majority finds two flaws in the EIR, which I discuss in order.
B. Greenhouse Gas Emissions
California has mandated substantial future reductions in greenhouse gas
emissions. The mandate is critically important to our environment and must be
treated very seriously. The EIR and the reviewing agencies had to consider very
carefully the project‘s emission impact. And they did just that. As the EIR
explains, the project, with the proposed mitigation measures, will result in a 31
percent reduction in greenhouse gas emissions from a business-as-usual model.
The EIR fully explains this calculation. Neither the majority nor the project
opponents disputes it. Indeed, the Court of Appeal opinion explains that evidence
exists that this figure is actually ―conservative.‖
5
The EIR also compares the 31 percent reduction to the reduction goal the
Legislature established under the California Global Warming Solutions Act of
2006, commonly known as Assembly Bill No. 32 (2005-2006 Reg. Sess.)
(Assembly Bill 32). As the majority explains, the EIR‘s method was modeled on
the California Air Resources Board‘s determination that the reduction goal under
Assembly Bill 32 is 29 percent from business as usual. (Maj. opn., ante, at p. 9.)
It appears the lead agencies could have, in their discretion, used an even lower
goal as its measurement. According to an analysis of the scoping plan conducted
by the Bay Area Air Quality Management District (BAAQMD), ― ‗land use-
driven‘ sectors‖ will be expected to demonstrate only a 26.2 percent reduction in
greenhouse gas emissions. (BAAQMD, Cal.) Environmental Quality Act
Guidelines Update: Proposed Thresholds of Significance (May 3, 2010) pp. 12-
13, 15.) But because the EIR used the higher goal of a 29 percent reduction, I will
also.
Three recent Court of Appeal opinions have made clear that comparing the
proposed reduction with Assembly Bill 32‘s reduction goal is a proper
methodology within the agencies‘ discretion. (Friends of Oroville v. City of
Oroville (2013) 219 Cal. App. 4th 832, 841 [―The City properly adopted Assembly
Bill 32‘s reduction targets for [greenhouse gas] emissions as the threshold-of-
significance standard in determining whether the Project‘s [greenhouse gas]
emissions constituted a significant environmental impact.‖]; North Coast Rivers
Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal. App. 4th
614, 652 [―[T]he EIR concluded the Project would not interfere with achieving a
15 percent reduction in countywide [greenhouse gas] emissions, compared to 1990
levels, by 2020. This analysis more than satisfied the requirements of CEQA.‖];
Citizens for Responsible Equitable Environmental Development v. City of Chula
Vista (2011) 197 Cal. App. 4th 327, 336 [―Here, the City properly exercised its
6
discretion to utilize compliance with Assembly Bill No. 32 (2005-2006 Reg. Sess.)
as the threshold.‖]; see also id. at p. 337 [a reduction of greenhouse gas emissions
4 percent greater than Assem. Bill 32‘s goal was sufficient].)
Here, the reduction was 2 percent greater than the established goal, rather
than the 4 percent found adequate in Citizens for Responsible Equitable
Environmental Development v. City of Chula Vista, supra, 197 Cal. App. 4th 327.
But the holding in that case did not turn on the exact amount the reduction
exceeded the goal. The agencies did not abuse their discretion in adopting a
methodology that three Courts of Appeal have approved.
Contrary to this authority, the majority holds that the EIR does not
adequately explain how a 31 percent reduction in greenhouse gas emissions is
consistent with Assembly Bill 32‘s goal of a 29 percent reduction. Citing a letter
from the California Attorney General‘s Office, it suggests that a new development
should exceed that goal by some amount — presumably an amount greater than 2
percent. (Maj. opn., ante, at p. 20.) For example, one expert group has proposed,
as one possibility, a criterion of 50 percent reduction for new developments. (Cal.
Air Pollution Control Officers Assn., CEQA & Climate Change: Evaluating and
Addressing Greenhouse Gas Emissions from Projects Subject to the Cal.
Environmental Quality Act (Jan. 2008) p. 33.) A 50 percent reduction would be
impressive and certainly would be wonderful. But what might be ideal does not
have the force of law. If the Legislature had enacted a statute requiring new
developments to exceed the goal by a specified amount — or perhaps if an
authoritative governmental agency charged with implementing the legislation had
so specified — then we should enforce it. But the Attorney General‘s letter and
the project opponents‘ arguments are not legally binding.
Indeed, recognizing that a 50 percent reduction is not legally required, the
same expert group suggested other possibilities. As a recent law review article
7
explains, that group also stated that a possible approach would be to conclude that
―an individual project that has greenhouse gas emissions that are 28-33 % less
than such a project would otherwise have under a [business-as-usual] scenario
could be considered less than significant for purposes of CEQA.‖ (Crockett,
Addressing the Significance of Greenhouse Gas Emissions under CEQA:
California’s Search for Regulatory Certainty in an Uncertain World (2011) 4
Golden Gate U. Envtl. L.J. 203, 215-216.) Additionally, as Justice Corrigan
explains, the majority‘s criticism of the EIR for failing to correlate its population
density comparison with the business-as-usual comparison used in the Scoping
Plan is unduly hyper technical and inconsistent with our deferential substantial
evidence review. (Con. & dis. opn., ante, at pp. 4-5, citing Maj. opn., ante, at p.
22.) Given the absence of any expert or regulatory consensus regarding the best
methodology, the lead agencies acted within their discretion in adopting their
chosen methodology. The EIR fully explains that the proposed reduction in
greenhouse gas emissions is greater than AB 29‘s goal. No legal basis exists to
determine that this is insufficient. Accordingly, the agencies acted within their
discretion in finding that exceeding the targeted reduction would not significantly
interfere with meeting the targeted reduction.
I would also find no prejudice. Only so much can be expected of an EIR.
The EIR informed the decision makers and general public exactly what the
project‘s likely impacts would be. More is not required. (See Environmental
Protection Information Center v. California Dept. of Forestry & Fire Protection
(2008) 44 Cal. 4th 459, 485.)
C. The Unarmored Threespine Stickleback
To the extent the proposed project threatens harm to the unarmored
threespine stickleback fish (stickleback), the EIR describes mitigation measures
8
that will be taken to protect it. Briefly stated, the project managers have
developed a program whereby United States Fish and Wildlife Service employees
and their agents (and only those personnel) will move the stickleback out of
harm‘s way as necessary to protect them. No one seems to challenge this
program‘s efficacy in protecting and preserving the species. But the majority
interprets the Fish and Game Code as prohibiting the EIR from calling the
program a mitigation measure.
I note, first, that the majority‘s holding has little substance. The majority
makes clear that the United States Fish and Wildlife Service is allowed to protect
the stickleback in this way. (Maj. opn., ante, at pp. 28, 33-34.) The majority is
clearly correct in this regard. The Fish and Game Code does not prohibit this
federal agency from protecting the stickleback. (See Biological Diversity v. U.S.
Fish, Wildlife (9th Cir. 2006) 450 F.3d 930, 941-943.) All that the majority
prohibits is referring to the program as a binding mitigation measure in the EIR.
Because the EIR‘s purpose is to provide ― ‗detailed information about the effect
which a proposed project is likely to have on the environment‘ ‖ (Laurel Heights
Improvement Assn. v. Regents of University of California, supra, 47 Cal.4th at p.
391, italics added), even the majority permits the EIR to discuss the program as a
way to avoid harm to the stickleback. All the majority presumably requires the
EIR‘s drafters to do is to use a phrase such as ―avoid harm‖ or ―protect the
species,‖ and not use a word like ―mitigate.‖
The majority is also wrong as a matter of statutory interpretation. The
stickleback is officially designated as both an ―endangered species‖ and a ―fully
protected fish.‖ (Fish & G. Code, §§ 2062, 5515, subd. (b)(9); all further statutory
citations are to this code.) ―The Legislature . . . finds and declares that it is the
policy of this state to conserve, protect, restore, and enhance any endangered
species or any threatened species and its habitat and that it is the intent of the
9
Legislature, consistent with conserving the species, to acquire lands for habitat for
these species.‖ (§ 2052.) Section 2061 defines ― ‗[c]onserve‘ ‖ as using methods
necessary to make the species no longer endangered, including ―live trapping, and
transplantation, and, in the extraordinary case where population pressures within a
given ecosystem cannot be otherwise relieved, may include regulated taking.‖
(Italics added.) Between them, sections 2052 and 2061 permit, and indeed
encourage, the program here, whereby the federal agency moves an endangered
species like the stickleback out of harm‘s way.
But the majority concludes that a provision concerning fully protected fish
prohibits as a mitigating measure what the statutes concerning endangered species
encourage. ―[F]ully protected fish or parts thereof may not be taken or possessed
at any time.‖ (§ 5515, subd. (a)(1).) The section excepts takings ―for necessary
scientific research,‖ but the exception does not include actions taken to mitigate a
project. (Id., subd. (a)(1), (2).) The question before us, therefore, is whether
moving the stickleback out of harm‘s way would be a prohibited taking. The
majority concludes it is. The DFW and I disagree.
― ‗Take‘ means hunt, pursue, catch, capture, or kill, or attempt to hunt,
pursue, catch, capture, or kill.‖ (§ 86.) Viewed in isolation, it is plausible (but far
from compelled) to conclude that the program at issues does involve a taking
within this definition. However, ―[w]e do not examine [statutory] language in
isolation, but in the context of the statutory framework as a whole in order to
determine its scope and purpose and to harmonize the various parts of the
enactment.‖ (Coalition of Concerned Communities, Inc. v. City of Los Angeles
(2004) 34 Cal. 4th 733, 737.)
Section 86‘s definition of ―take‖ applies to the entire Fish and Game Code,
including section 2061, and not just to section 5515. (See § 2.) Section 2061
refers separately to ―live trapping,‖ ―transplantation,‖ and ―taking,‖ which is
10
permitted in an extraordinary case. These separate references, and the special rule
for taking, necessarily imply that ―taking‖ is different than ―live trapping‖ and
―transplantation.‖ The majority does not explain what the difference is between
―taking‖ and ―live trapping‖ or ―transplantation,‖ or why the program constitutes
taking rather than live trapping or transplantation, as the DFW argues.
Viewed in light of section 2061, the DFW is correct that the planned
movement is not a taking within the meaning of the code. Any reasonable
interpretation of that word is that it has some connotation of harm to the species,
although not necessarily mortal harm. Obtaining possession of the fish just long
enough to move them from a place of danger to a place of safety, then letting them
go, is not a taking; it is live trapping and transplantation.
The statutory scheme provides other clues that this is the correct
interpretation. Section 2061 permits ―regulated taking‖ as a method to conserve
an endangered species in ―the extraordinary case where population pressures
within a given ecosystem cannot be otherwise relieved.‖ What this means is that
if excessive population is itself threatening the species — perhaps due to
insufficient resources to sustain the population — and the population excess
cannot otherwise be relieved, the agency may employ regulated taking. This kind
of taking must refer to a permanent taking that will reduce the population pressure,
not merely a temporary movement of the fish from a place of danger to a place of
safety. Section 5515 precludes such a regulated taking when used merely to
mitigate the effects of a project, for example, when the project itself would reduce
the resources and thus would itself cause the population pressure. All this would
make sense. Contrary to the majority‘s argument, my interpretation would give
full effect to section 5515, subdivision (a). (See maj. opn., ante, at p. 30.) But
nothing in section 5515 precludes the DFW‘s interpretation of the proposed
program as live trapping and transplantation, rather than a taking.
11
This interpretation harmonizes the entire statutory scheme, and does not
make the scheme contain contradictory mandates — one mandate for endangered
species and another mandate for fully protected fish. It is the interpretation the
DFW — the agency charged with administering the law regarding endangered and
fully protected species — has given it. We are not bound by the agency‘s
interpretation if it is obviously wrong, but we should at least give it deference.
The DFW is far more expert in conserving endangered and fully protected fish
than we are. It is not obviously wrong for that agency to view the program as live
trapping and transplantation rather than taking.
The majority cites section 3511 as somehow suggesting that ―live capture
and relocation‖ (a concept essentially the same as the live trapping and
transplantation cited in § 2061) is either the same as taking or a subset of taking.
(Maj. opn., ante, at pp. 35-36.) The section contains no such suggestion. It states
that ―fully protected birds or parts thereof may not be taken or possessed at any
time,‖ but the DFW ―may authorize the live capture and relocation of those
species pursuant to a permit for the protection of livestock.‖ This language
prohibits taking but permits, in some circumstances, live capture and relocation,
thus suggesting that the concepts are separate, not the same.
The majority‘s reference to ―hunting and killing animals‖ (maj. opn., ante,
at pp. 33-34) is puzzling. Moving an endangered and fully protected species from
a place of danger to a place of safety bears no resemblance to hunting and killing.
Hunting and killing can readily be viewed as a taking, not live trapping and
transplantation. But doing so does not compel the conclusion that moving a
species to a place of safety is also a taking rather than live trapping and
transplantation.
The majority invokes the specter of self-help by self-appointed amateur
conservationists. (Maj. opn., ante, at p. 34.) Interpreting the program to be a
12
permitted live trapping and transplantation rather than a prohibited taking has
nothing to do with self-help. The DFW and the United States Fish and Wildlife
Service are not self-appointed experts, but governmental agencies mandated to
protect and conserve endangered and protected species. I agree with the majority
that the Legislature did not intend that ―unauthorized persons found pursuing and
catching a protected species seemingly could assert as a complete defense that
they had no intent to harm the animal and would have restored or transplanted it to
a safe habitat.‖ (Ibid.) The Fish and Game Code does not allow unauthorized
persons to so act. Indeed, because the special rule concerning taking applies to
fully protected fish only and not more generally to endangered species, the
majority‘s analysis would mean that ―unauthorized persons found pursuing and
catching‖ an endangered species ―seemingly could assert as a complete defense
that they had no intent to harm the animal and would have restored or transplanted
it to a safe habitat.‖ The Legislature cannot have intended that either.
In short, to protect the stickleback as needed, the United States Fish and
Wildlife Service can implement the program of the live trapping and
transplantation of the fish from a place of danger to a place of safety. And, in
describing the program, the EIR can call it a ―mitigation measure‖ without
violating the Fish and Game Code.
D. Conclusion
We have ―caution[ed] that rules regulating the protection of the
environment must not be subverted into an instrument for the oppression and delay
of social, economic, or recreational development and advancement.‖ (Citizens of
Goleta Valley v. Board of Supervisors (1990) 52 Cal. 3d 553, 576.) Today‘s
opinion threatens this very subversion.
13
The Newhall Ranch project has been very long in planning, approval, and
litigation. The current EIR was finalized some five years ago. The two flaws the
majority has found in the EIR can easily be fixed. (See maj. opn., ante, at pp. 23-
27 [describing how the supposed error in finding that a 31 percent reduction in
greenhouse gas emissions would not significantly interfere with meeting a targeted
reduction of 29 percent can be fixed].) As noted, regarding the program to protect
the stickleback, the lead agencies seemingly need only delete from the EIR any
terms that sound like ―mitigation‖ and use instead some other term such as
―avoiding harm‖ or ―protecting the species.‖ So, in one sense, one might ask what
is the harm in sending the case back to fix these flaws.
The harm is in delay. This litigation has already delayed implementing the
EIR some five years or so. Now this court is sending the case back to the Court of
Appeal. Among other things, it is permitting the project opponents to relitigate
some already decided issues even though the Court of Appeal fully rejected the
arguments the first time. It also leaves it to the Court of Appeal, or perhaps to the
superior court on a further remand, to decide the exact parameters of the writ of
mandate to be issued. (Maj. opn., ante, at p. 40.) At some point, this appeal will
end, and the writ will issue. At some point after that, the EIR will have to be
revised, with the necessary period of public comment, etc. (although presumably
limited to the two flaws the majority has found). Then it is predictable that yet
more litigation will follow the finalization of the new EIR. Given the glacial pace
of litigation, this will easily take years.
And it gets worse. The majority strongly hints that the time will come
when compliance with goals established for the year 2020 will not be sufficient,
and the proposed project will have to meet some different goals established for the
future beyond 2020. (Maj. opn., ante, at pp. 16-17.) By the time this litigation
ends, and the new EIR is prepared and finalized, we will be much closer to 2020
14
than when the current EIR was finalized in 2010. Delay can become its own
reward for project opponents. Delay the project long enough and it has to meet
new targets, and then perhaps new targets after that. All this is a recipe for
paralysis. But CEQA is not meant to cause paralysis. Carefully planned green
communities are needed to accommodate California‘s growing population. CEQA
ensures the informed planning, but it does not prohibit the planned communities.
CEQA does nothing to control California‘s population growth. The 58,000
or so people the proposed project is intended to accommodate will not just go
away. They will be living and working somewhere. And that somewhere will
undoubtedly be far less green than this project promises to be. The longer the
project is delayed, the longer the workplaces and residences of 58,000 people will
be emitting business-as-usual amounts of greenhouse gases, rather than the greatly
reduced amount projected under this project. Today‘s opinion will delay the
project even longer.
I would affirm the judgment of the Court of Appeal and put an end to this
litigation.
CHIN, J.
15
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Center for Biological Diversity v. Department of Fish & Wildlife
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 224 Cal. App. 4th 1105
Rehearing Granted
__________________________________________________________________________________
Opinion No. S217763
Date Filed: November 30, 2015
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Ann I. Jones
__________________________________________________________________________________
Counsel:
Wendy L. Bogdan, Thomas R. Gibson, John H. Mattox; Thomas Law Group, Tina A. Thomas, Ashle T.
Crocker, Amy R. Higuera and Meghan M. Dunnagan for Defendant and Appellant.
Latham & Watkins, Christopher W. Garrett and Taiga Takahashi for California Chamber of Commerce as
Amicus Curiae on behalf of Defendant and Appellant.
Holland & Knight, Jennifer L. Hernandez and Charles L. Coleman III for San Joaquin Valley Air Pollution
Control District and County of Kern as Amici Curiae on behalf of Defendant and Appellant.
Kathrine Pittard for Sacramento Metropolitan Air Quality Management District as Amicus Curiae on behalf
of Defendant and Appellant.
Nossaman, Robert D. Thornton, Stephanie N. Clark; Best Best & Krieger, Steven C. DeBaun, Charity B.
Schiller; Stefanie D. Morris; Marcia Scully, Robert C. Horton; Mark J. Saladino, County Counsel (Los
Angeles), Charles M. Safer, Assistant County Counsel, Ronald W. Stamm, Principal Deputy County
Counsel; and Amelia T. Minaberrigarai for Foothill/Eastern Transportation Corridor Agency, San Joaquin
Hills Transportation Corridor Agency, Kern County Water Agency, Metropolitan Water District of
Southern California, Riverside County Transportation Commission, Los Angeles County Metropolitan
Transportation Authority and State Water Contractors as Amici Curiae on behalf of Defendant and
Appellant.
Cox, Castle & Nicholson, Michael H. Zischke, Andrew B. Sabey, Linda C. Klein and James M. Purvis for
California Building Industry Association, Building Industry Legal Defense Foundation, Building Industry
Association of the Bay Area, California Business Properties Association and California Association of
Realtors as Amici Curiae on behalf of Defendant and Appellant.
Sidley Austin, Mark E. Haddad, Michelle B. Goodman, Wen W. Shen and David L. Anderson for
Governors George Deukmejian, Pete Wilson and Gray Davis as Amici Curiae on behalf of Defendant and
Appellant.
Page 2 – S271763 – counsel continued
Counsel:
Gatzke Dillon & Ballance, Mark J. Dillon, David P. Hubbard; Morrison & Foerster, Miriam A. Vogel;
Nielsen Merksamer Parinello Gross & Leoni, Arthur G. Scotland; Downey Brand and Patrick G. Mitchell
for Real Party in Interest and Appellant.
Poole & Shaffery, David S. Poole, John H. Shaffery and Samuel R.W. Price for Santa Clarita Valley
Economic Development Corporation as Amicus Curiae on behalf of Defendant and Appellant and Real
Party in Interest and Appellant.
John Buse, Kevin P. Bundy, Aruna Prabhala; Law Office of Adam Keats, Adam Keats; Jason A. Weiner;
Frank G. Wells Environmental Law Clinic, Sean B. Hecht; Chatten-Brown and Carstens, Jan Chatten-
Brown and Doug Carstens for Plaintiffs and Respondents.
Courtney Ann Coyle for the Karuk Tribe, the Kashia Band of Pomo Indians of Stewarts Point Rancheria,
the Pala Band of Mission Indians, the Pechanga Band of Luiseño Indians, the Santa Ynez Band of
Chumash Indians and the Tinoqui-Chaloa Council of Kitanemuk & Yowlumne Tejon Indians of the Former
Sebastian Indian Reservation as Amici Curiae on behalf of Plaintiffs and Respondents.
Matthew Vespa for Sierra Club as Amicus Curiae on behalf of Plaintiffs and Respondents.
Lucy H. Allen; Austin Sutta and Sharon E. Duggan for Environmental Protection Information Center,
Audubon California and California Trout, Inc., as Amici Curiae on behalf of Plaintiffs and Respondents.
Christopher H. Calfee for Governor‘s Office of Planning and Research and California Natural Resources
Agency as Amici Curiae on behalf of Plaintiffs and Respondents.
Burke, Williams & Sorensen, Kevin D. Siegel and Stephen Velyvis for League of California Cities,
California State Association of Counties, California Special Districts Association and Southern California
Association of Governments as Amici Curiae.
Brandt-Hawley Law Group and Susan Brandt-Hawley for Planning and Conservation League as Amicus
Curiae.
2
Counsel who argued in Supreme Court (not intended for publication with opinion):
Tina A. Thomas
Thomas Law Group
455 Capitol Mall, Suite 801
Sacramento, CA 95814
(916) 287-9292
Mark J. Dillon
Gatzke Dillon Balance
2762 Gateway Road
Carlsbad, CA 92009
(760) 431-9501
John Buse
Center for Biological Diversity
1212 Broadway, Suite 800
Oakland, CA 94612
(510) 844-7100
Kevin P. Bundy
Center for Biological Diversity
1212 Broadway, Suite 800
Oakland, CA 94612
(510) 844-7100
3