Saturday, July 28, 2012

CREED v. Chula Vista, Groundbreaking greenhouse gas case in California

Groundbreaking greenhouse gas case in California
Amanda Monchamp and Melanie Sengupta
Holland & Knight LLP
October 26 2011

Supreme Court Denies Review and Depublication of Case Establishing Significance Thresholds for Greenhouse Gas Emissions Under CEQA

On October 19, 2011, the California Supreme Court denied the petition for review and requests for depublication of the Court of Appeal, Fourth District’s decision in Citizens for Responsible Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327 (CREED).

CREED captured great attention because of the only four published cases that address climate change, it is the first one to address the pivotal issue of a lead agency’s analysis of significance thresholds for greenhouse gas emissions under the California Environmental Quality Act (CEQA). CREED, along with several notable environmental advocacy groups and the Attorney General of the State of California, sought review as well as depublication to overturn the Court of Appeal’s sanctioning of a lead agency’s use of the California Global Warming Solutions Act of 2006 (AB 32) as the significance threshold to assess greenhouse gas emissions and climate change impacts under CEQA. The critical take-away of the CREED decision is that the lead agency has the discretion to set a significance threshold, and it is proper to use AB 32 and the “business as usual” methodology for assessing the significance of impacts from greenhouse gas emissions.

City's "Business-As-Usual" Threshold OK For Evaluating Greenhouse Gas Emissions Under CEQA
Jeffrey W. Forrest
Ashley T. Hirano
Sheppard, Mullin, Richter & Hampton LLP - San Diego Office
July 20, 2011

Citizens for Responsible Equitable Environmental Development ("CREED") v. City of Chula Vista, Docket No. D05779

In this clean-tech era, Citizens for Responsible Equitable Environmental Development ("CREED") v. City of Chula Vista marks only the third time that a court has published a case addressing greenhouse gases in California. In CREED, the City of Chula Vista certified a mitigated negative declaration ("MND") and approved development permits for a project that would demolish an existing Target store, a smog check facility, and a small market, and construct in its place a larger Target store. CREED filed suit, claiming that CEQA required the City to certify a full environmental impact report because the project would have a significant environmental impact on hazardous materials, air quality, particulate matter and ozone, and greenhouse gas emissions. While the court held that an EIR was likely required for other reasons, the court also held that, to demonstrate the project’s consistency with the GHG emissions reduction goals established by California's "Global Warming Solutions Act" (AB 32), the City had properly relied upon evidence the project’s emissions were below the GHG threshold of significance. The City established this threshold of significance using what has become known as the "Business-As-Usual" ("BAU") method. The court also held that the City properly relied on the thresholds of significance in the South Coast Air Quality Management District's CEQA Air Quality Handbook to conclude that the project's air quality impacts (particulate matter and ozone) were not cumulatively considerable even though the San Diego air basin is in non-attainment for particulate matter pollution.

...Finally, even though the percentage reduction from BAU necessary to meet AB 32's emissions reduction target has varied from time to time, agency to agency, and report to report, this court's decision indicates that when a public agency chooses to rely on a particular source's BAU percentage from a particular expert or agency report, it is important for the lead agency to require the project to meet at least that specific percentage if the lead agency's purpose is to demonstrate there is evidence the project is consistent with AB 32's reduction targets. To require less breaks the logical chain in the threshold and normally would require both a finding that further mitigation was infeasible and a statement of overriding considerations. Here, the permittee and the City were fortunate that the air quality report demonstrated that the project would achieve and exceed the report's stated 25 percent BAU standard.

Environmental Review Suffers Setbacks, Divides Officials

Environmental Review Suffers Setbacks, Divides Officials
Voice of San Diego
May 4, 2007

Local environmentalists have made strides in several recent lawsuits against the city of San Diego over its supervision of local development, with the city's top two elected officials consistently at odds over a key environmental safeguard.

Recent legal setbacks have drawn scrutiny to an issue that has already proved divisive at City Hall. In the last two months, the city has lost or settled four cases, forcing it to more thoroughly study the impacts of growth and development on surrounding communities.

The lawsuits contend the city did not properly measure the impacts of certain development plans: a blueprint to triple downtown's residential population over the next two decades; the planned Regents Road Bridge in University City; a Jewish student center in La Jolla; and thousands of condo conversions that have been proposed citywide.

At the heart of the lawsuits is the city's alleged inability to accurately and thoroughly gauge the effect those projects would have on the nearby environment, such as water resources, animal life, air quality, traffic or the displacement of residents.

"It's a continuation of 'let's get away with the bare minimum, and if the public doesn't like it, just sue us,'" Councilwoman Donna Frye said.

In each of the four instances, the lawsuits prompted concessions by the city, ranging from paying the environmentalists' attorney fees to taking on further work that will delay the building plans at the center of the complaints.

Beyond their cost to the city, the legal setbacks are demonstrative of the very extraordinary dynamics that sprout from these land-use decisions. The city's process for studying the impacts development projects have on traffic, air quality and other facets of the environment has driven an ideological wedge between Mayor Jerry Sanders and City Attorney Mike Aguirre.

"It's a very awkward situation as sometimes the city attorney's advice comes very late in the process or it comes as political advice, not legal," Sanders said. The reviews are initiated by the development staff of Sanders, an ally of local real estate developers, and are regularly approved by the City Council. But the city's analyses are also subject to the scrutiny by Aguirre, who often sides with environmentalists.

Also, the environmental reviews seem to have blurred the line between policy and law, as both Sanders' staff and Aguirre have tried to make the case for more control over the reviews.

With both of those conflicts at work, the city's efforts to comply with the California Environmental Quality Act, or CEQA, have produced some of the more contentious instances of infighting within the city camp. As a result, the city has sent mixed messages about its interpretation of the law, as well as who's to fault over its related blunders.

The recent legal developments could foreshadow the impending challenge to the environmental study on the controversial Navy Broadway Complex, which was crafted in 1990. The setbacks may also prompt the city to step up its forthcoming environmental report on the city's general plan update, which will outline San Diego's growth citywide.

Aguirre said the city's inability to wholly defend the lawsuits indicates the weakness of its environmental policies.

"There's been a real policy in the past of looking at compliance with the law as a policy choice, and that has been so thoroughly discredited now," said Aguirre, referring to the recent courtroom outcomes.

A Thin Line Between Policy and Law

Every development project reviewed by the city undergoes a CEQA review so the public and policy makers know its impacts. The Mayor's Office supervises the staff that initially decides the scope and scale of an environmental review.

In his role as the city's lawyer, Aguirre is tasked with advising the city on CEQA issues when they reach the courtroom. But he has also made efforts to influence the city to back off the courses of action suggested by Sanders' development staff by publicly issuing legal opinions that counter the mayor.

In November 2005, Aguirre issued an opinion backing up the claims by one environmental group that the city needed to conduct a comprehensive study of the impacts condo conversions had on traffic, parking and the displacement of former renters on the San Diego landscape. The opinion marked a drastic change from the city's policy of not spending time or money on a study.

Jim Waring, the top development aide for Sanders, partially attributed the settlement of the condo-conversion case to Aguirre's proclamation, claiming it fueled Citizens for Responsible Equitable Environmental Development's challenge.

"The plaintiffs in that case cited the city attorney letter in their complaint," Waring said. "It was highly unusual, and it clearly put the city in a difficult position in defending the case."

The city concluded its fight against the condo conversion challenge March 27, when the City Council preliminarily agreed to settle. In the settlement, which has not gained final approval, the city agreed to limit the conversion of housing units to 1,000 per year, issue an annual report on the developments, and pay C.R.E.E.D. $75,000.

Waring criticized Aguirre's handling of the environmental lawsuits, saying his legal advice "reflects his political bent."

"The city attorney doesn't like being an attorney. He wants to make policy," he added.

On the contrary, environmental advocates are skeptical of the Sanders administration, saying they believe his political alliance with the building industry now plays a larger role under the new strong-mayor form of government. All city departments, including the Development Services Department, now report to the mayor, hypothetically putting the influence over the CEQA decisions at his disposal.

Before, the mayor represented just one of the nine City Council votes.

"It seems to me that decisions are being made upon politics and the environmental review is being skewed to align with a predetermined outcome," said Coast Law Group attorney Marco Gonzalez, who represented the plaintiffs in the cases involving the downtown, Regents Road Bridge and La Jolla student center.

Gonzalez said the city is missing warning signs along the way, an indication that they could be bowing to political influence. He pointed to the Regents Road Bridge lawsuit, which challenged the environmental study of spanning Rose Canyon with a street that would connect the two ends of University City. Gonzalez said red flags were raised by Aguirre, members of the public, planning commissioners and the local planning group.

"And for whatever reason, both the mayor and the council approved this project," he said.

Frye, who has regularly voted against the mayor's determinations, said the she didn't think the city's environmental review process is any worse than before strong-mayor. She attributed the recent success of CEQA challenges to a more active opposition. "I think where the changes are coming is that the communities are becoming more organized and are better able to raise money to challenge projects," Frye said.

Saturday, July 21, 2012

Parks boss steps down over secret $54 million hidden from budget makers

Obviously, we need more transparency in government. Parks boss steps down over secret funds
The state discovered $54 million hidden from budget makers
By Ashly McGlone and Matt Clark
July 20, 2012

The discovery of $54 million stashed away in the state parks department has resulted in the resignation of the agency’s director and the firing of a top assistant.

The state is launching an agencywide audit of the parks department — and is reviewing all 560 special funds in the state budget, which hold upwards of $33.4 billion.

...“I am floored,” said Rick Barclay, chairman of the Friends of Palomar Mountain State Park, a group that spent the last year gathering donations to insure that one of the most popular local state parks in the county would remain open. “If that money really was there and could have been used to keep parks open, then we will all be scratching our heads wondering, why did we go through all that.”

Some 70 parks were threatened with closure this year in anticipation of $22 million in cuts to the department’s $364 million operating budget.

In late June the parks department announced that, at least for the time being, enough money had been found to keep all 70 parks open. Those included the San Pasqual Historic Battlefield museum near the San Diego Zoo Safari Park, and two large state recreation areas in Imperial County: Salton Sea and Picacho on the Colorado River.

Bill Meister, president of the nonprofit Sea and Desert Interpretive Association which has been fighting to keep the Salton Sea State Recreation Area open, said he was shocked by the news.

“An awful lot of people — employees, lovers of the park — have had a lot of sleepless nights not knowing if they were going to have jobs or if the park would close,” he said. “We’ll have to see how this all plays out, but it doesn’t look good.”

State investigators in January began looking into a secret $271,000 vacation cashout program for parks staffers. Officials tapped the department’s new deputy director of administrative services, Aaron Robertson, to examine agency finances. He is credited with finding the hidden funds.

State investigators have determined that nearly $20.4 million, or 39 percent of the money in the State Parks and Recreation Fund, was not disclosed to state budget officials. Nearly $33.5 million, or 20 percent, of the money in the parks’ Off Highway Vehicle Fund was also not reported. Both accounts subsist on revenue from park visitor fees.

The finance department and the attorney general are reviewing whether criminal activity was involved in hiding the assets. Officials said preliminary findings suggest the reporting errors date back at least 12 years.

Ruth Coleman, state parks director for the last eight years, resigned Thursday, even as she said she had no knowledge of the hidden funds.

“I have always taken the public trust to heart and honored it and I am personally appalled to learn that our documents were not accurate,” Coleman wrote in her resignation letter to the governor.