Defendant, City of Rialto (the City), approved a 230,000-square-foot commercial retail center to be anchored by a 24-hour Wal-Mart "Supercenter" (the project). Plaintiff, Rialto Citizens for Responsible Growth (Rialto Citizens), petitioned the trial court for a writ of administrative mandate invalidating several project approvals, including the City's resolution certifying the final environmental impact report (the EIR) for the project, several resolutions
The trial court entered judgment in favor of Rialto Citizens and issued a peremptory writ invalidating the challenged resolutions and ordinance. Real parties in interest, Wal-Mart Real Estate Business Trust, Wal-Mart Real Estate Business Trust, Inc., and Wal-Mart Real Estate Trust, Inc. (collectively Wal-Mart), appeal. The City and its redevelopment agency, another named defendant, join Wal-Mart's appeal. Based on our de novo review of the City's actions certifying the EIR and approving the project, we find no prejudicial abuse of discretion on the part of the City. (Code Civ. Proc., § 1094.5.) Accordingly, we reverse the judgment in its entirety.
As a preliminary matter, Wal-Mart claims for the first time on appeal that Rialto Citizens lacks standing to challenge the project approvals because neither it nor any of its members are beneficially interested in the issuance of the judgment or writ. Based on the record before us, we conclude that Rialto Citizens has public interest standing. It is therefore unnecessary to determine whether Rialto Citizens or any of its members have a beneficial interest in the issuance of judgment or the writ.
In a separate part of this opinion, we address whether the City violated the Planning and Zoning Law (Gov. Code, § 65000 et seq.)
On independent review of these legal questions, we agree with the trial court that the notice of hearing was defective because it did not include the
In the final part of this opinion, we address whether the City violated the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) in approving the project, specifically in certifying the EIR and in rejecting a "reduced density alternative" as infeasible. The trial court ruled that the EIR was inadequate and therefore erroneously certified because (1) its project description did not identify the development agreement as an approval required to implement the project; (2) it inadequately analyzed the project's cumulative impacts on air quality, traffic, greenhouse gas emissions and global climate change; and (3) it improperly deferred mitigation measures to reduce the project's potential impacts on five special status plant species and three special status wildlife species, namely, the San Bernardino and Stephens' kangaroo rats, and the burrowing owl. The court also concluded that insufficient evidence supported the City Council's factual finding, at the project approval stage, that the reduced density alternative to the project was infeasible.
We agree with the trial court that the project description was inadequate because it did not identify the development agreement as an approval required to implement the project. Importantly, however, this omission did not preclude or undermine informed decisionmaking on the project as a whole or the development agreement, because the ordinance approving the development agreement was duly noticed and considered, along with other project approvals, at the public hearing on the project before the City Council.
We also conclude, contrary to the trial court's rulings, that the EIR adequately analyzed the project's cumulative impacts on air quality, traffic, greenhouse gas emissions and global climate change, and did not improperly defer mitigation of potential impacts on any of the special status plant or wildlife species. Lastly, we conclude that substantial evidence supports the City's finding, at the project approval stage, that the reduced density alternative was infeasible.
As approved on July 15, 2008, the project consists of an approximate 230,000-square-foot commercial retail center, anchored by a 24-hour Wal-Mart Supercenter with 197,639 square feet of retail floor space. The Wal-Mart Supercenter would sell general merchandise, groceries, and liquor. It would also include a pharmacy with a "two-lane drive-thru," a vision and hearing care center, food service center, photographic studio and photographic finishing center, banking center, garden center, tire and lube facilities, and outdoor sales facilities.
In addition to the Wal-Mart Supercenter, the project also includes four commercial outparcels, a gas station with 16 fueling pumps, and a detention/retention basin for storm water. The project will have a total of 1,143 parking spaces, including 880 on the Wal-Mart Supercenter parcel, and is expected to generate 17,317 additional daily vehicle trips. The project is located on 25.18 acres of vacant land, bounded by San Bernardino Avenue to the north, industrial uses and additional vacant land to the south, Riverside Avenue to the east, and Willow Avenue to the west.
A draft EIR for the project was issued in May 2007 and circulated between May 18, 2007, and July 2, 2007. On July 15, 2008, following public hearings on the project before the planning commission and the City Council, the City Council adopted resolution No. 5612 certifying the final EIR, dated June 2008, and adopting factual findings and a statement of overriding considerations. The final EIR concluded that the project would have significant impacts on traffic, noise, and air quality despite mitigation measures to reduce these impacts.
As we explain, Rialto Citizens has standing under the "public interest exception" to the general rule that a party must be beneficially interested in the issuance of a writ in order to petition for the writ. (Waste Management of Alameda County, Inc. v. County of Alameda (2000) 79 Cal.App.4th 1223, 1232-1233 [94 Cal.Rptr.2d 740] (Waste Management), disapproved on other grounds in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 169-170 [127 Cal.Rptr.3d 710, 254 P.3d 1005] (Save the Plastic Bag Coalition).) It is therefore unnecessary to determine whether Rialto Citizens or any of its members was beneficially interested in the issuance of the writ. (Code Civ. Proc., § 1086.)
In its opening trial brief in support of its writ petition filed in January 2009, Rialto Citizens claimed it had standing to bring the petition and had exhausted all available administrative remedies. To support these claims, Rialto Citizens adduced the declaration of Richard Lawrence, the president of Rialto Citizens and Citizens for Responsible Equitable Environmental Development (CREED), both nonprofit corporations. Lawrence averred that, over the previous several years, CREED had advocated to ensure that "big box" development projects met all of the requirements of CEQA and other planning, zoning, and land use laws.
According to Lawrence, around May 31, 2008, CREED began commenting on the project through the Briggs Law Corporation, using the name Rialto Citizens for Responsible Growth. At that time, Rialto Citizens was an unincorporated, nonprofit association, and CREED was one of its members.
As indicated, the City Council certified the EIR and approved the project following a public hearing on July 15, 2008. On August 1, 2008, Rialto Citizens became a nonprofit public benefit corporation, organized to promote "social welfare through advocacy for and education regarding responsible and equitable environmental development."
Wal-Mart claims Rialto Citizens lacks public interest standing to challenge the City's actions certifying the EIR and approving the project because it has not shown it meets any of the four criteria formulated by the Waste Management court for determining whether a corporate entity has public interest standing. These are (1) whether the corporation has shown a continuing interest in or commitment to the public right being asserted; (2) whether it represents individuals who would be beneficially interested in the action; (3) whether individuals who are beneficially interested would find it difficult or impossible to seek vindication of their own rights; and (4) whether prosecution of the action as a citizen suit by a corporation would conflict with other competing legislative policies. (Waste Management, supra, 79 Cal.App.4th at p. 1238.)
In contrast to the present case, Waste Management involved a corporate landfill operator whose commercial or competitive interests were deemed an impediment to its public interest standing. (See Save the Plastic Bag Coalition, supra, 52 Cal.4th at p. 167; Waste Management, supra, 79 Cal.App.4th at p. 1228.) The landfill operator petitioned for a writ of mandate directing that permits issued to one of its competitors be set aside pending CEQA review of the environmental effects of the competitor's operations. The court concluded that the landfill operator lacked a beneficial interest and also lacked public interest standing. (Waste Management, supra, at pp. 1235-1237.)
Unlike the corporate landfill operator in Waste Management, Rialto Citizens is a nonprofit public benefit corporation, and as such has no commercial or competitive interests to undermine or override its public interest standing. Thus here, it is appropriate to apply the public interest exception.
Following a May 28, 2008, public hearing on the project, the planning commission certified the EIR and recommended that the City Council approve and adopt the general and specific plan amendments and the development agreement for the project. On June 21, 2008, the City published a revised notice in the San Bernardino County Sun newspaper, stating that on July 1, 2008, the City Council would hold a public hearing to consider certifying the EIR, adopting the plan amendments, and adopting the development agreement. At the close of the July 1 hearing, the City Council continued the hearing to July 15. On July 15, the City Council certified the EIR, adopted the general and specific plan amendments, and adopted the development agreement.
In the trial court, Rialto Citizens claimed and the trial court agreed that the notice of the July 1 public hearing before the City Council violated the Planning and Zoning Law because it did not indicate whether the planning commission had recommended that the City Council approve the plan amendments or the development agreement. (§ 65094.) On this appeal, Wal-Mart contends, as it did in the trial court, that the notice was not required
We agree that the notice was required to include the planning commission's recommendations. But Rialto Citizens made no attempt to show in the trial court, and the trial court did not find, that the defective notice was prejudicial, caused substantial injury to anyone, or that a different result was probable absent the defect. (§ 65010, subd. (b).) Thus as a matter of law, the plan amendments and the development agreement were erroneously invalidated based on the defective notice.
The question here is whether the notice of the July 1 public hearing before the City Council was required to include the planning commission's recommendations to adopt the plan amendments and development agreement as part of "a general explanation of the matter to be considered" at the public hearing. (§ 65094.) Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877 [70 Cal.Rptr.3d 474] (Environmental Defense Project), an action for declaratory relief, is on point and persuasive.
At issue in Environmental Defense Project was whether the County of Sierra's so-called "streamlined zoning process" — in which the county routinely gave notices of hearings before its board of supervisors on proposed zoning ordinances and amendments (§ 65856) before its planning agency made its recommendations to the board — violated the Planning and Zoning Law. (Environmental Defense Project, supra, 158 Cal.App.4th at p. 881.) The court concluded that the notices of hearing had to be given after the board received the planning commission's recommendations, not before. (Id. at pp. 881, 888-889.) Importantly, the court also concluded that the notices
Wal-Mart maintains that the second part of the court's holding in Environmental Defense Project is dictum. Indeed, as Wal-Mart points out, it was not necessary for the court to determine that the planning commission's recommendations had to be included in the notices of hearing before the board of supervisors in order to determine the question presented, which was whether the notices, as a matter of course, had to be given after the board of supervisors received the planning commission's recommendations. And here, the trial court acknowledged that the second part of the court's holding "might be technically classified as dicta," but found the court's reasoning on the point persuasive and applicable to the present notice issue. So do we.
The record before the court supported its conclusions. The Sierra County Planning Department had recommended approving a tentative parcel map and a zoning ordinance amendment at a January 27, 2005, meeting, and made changes to the project during that meeting. (Environmental Defense Project, supra, 158 Cal.App.4th at p. 892.) Notice of a February 1 hearing before the board of supervisors was given on January 20, before the planning department made its January 27 recommendations. Additionally, the planning department's project changes and recommendations were not transmitted to the board until late during the day on January 28, giving the public only one full business day to prepare comments on the changes and recommendations
Unlike the notice in Environmental Defense Project, which was given before the planning department made its recommendations to the board of supervisors, the notice of the July 1 public hearing before the City Council was given on June 21, several weeks after the planning commission made its recommendations on May 28. But like the notice in Environmental Defense Project, the notice of the July 1 hearing did not include the planning commission's recommendations on the matters to be considered at the hearing, even though the recommendations were made well before the notice was given.
Environmental Defense Project involved an action for declaratory relief, and as the court there pointed out, section 65010, subdivision (b) does not apply to actions for declaratory relief. (Environmental Defense Project, supra, 158 Cal.App.4th at p. 887.) In affirming the judgment of the trial court granting declaratory relief, the court did not set aside the board's actions approving the tentative parcel map and zoning amendment. (Id. at pp. 883, 894.) Indeed, the plaintiff was not seeking to set aside the board's actions, but a judicial declaration that the county's "streamlined zoning process," violated the Planning and Zoning Law. (158 Cal.App.4th at p. 882.) In short, Environmental Defense Project did not involve the application of section 65010, subdivision (b).
Rialto Citizens maintains Wal-Mart has forfeited its right to complain that Rialto Citizens did not demonstrate prejudice, substantial injury, or a probability of a different result based on the defective notice of hearing, because Wal-Mart did not raise these failure-of-proof issues in the trial court. Not so.
Lastly, Rialto Citizens argues there is evidence in the record "that would support the trial court's opinion that the [defective] notice inhibited full public participation." We disagree. But even if the record arguably contains any such evidence, the court's conclusion that the defective notice "inhibited full public participation" is unsupported by the necessary, underlying factual findings of prejudice, substantial injury, and the probability of a different result absent the error. (§ 65010, subd. (b).) Nor is it the province of this court to make such factual findings, particularly when, as here, undisputed evidence does not support such findings. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2011) ¶ 1:12, p. 1-2 (rev. # 1, 2009).)
Under the Planning and Zoning Law, "[a] development agreement is a legislative act that shall be approved by ordinance ..." and "shall not be approved unless the legislative body finds that the provisions of the agreement are consistent with the general plan and any applicable specific plan." (§ 65867.5, subds. (a), (b).) In the trial court, Rialto Citizens claimed, and the trial court agreed, that the City improperly approved the project without finding that the development agreement was consistent with the general plan and the Gateway Specific Plan, and on this basis the trial court invalidated the ordinance approving the development agreement.
On this appeal, Wal-Mart claims that substantial evidence in the record shows that the City did in fact find that the development agreement was consistent with the general and specific plans. We disagree. The record nowhere indicates that the City made this finding.
Wal-Mart maintains that the City's resolution No. 5612 and CEQA findings effectively include a finding that the development agreement was consistent with the general and specific plans. Not so. Though the caption or title of resolution No. 5612 refers to the plan amendments and the development agreement, the resolution focuses solely on the EIR and certifies the EIR, and does not mention the development agreement or the plan amendments outside of its caption. The CEQA findings state that the project would be consistent with "the land use plan and relevant policies of the [g]eneral [p]lan," and that the project "would be in compliance with the applicable goals and policies of the Gateway Specific Plan." But neither the EIR nor the CEQA findings define the project as including the development agreement. Thus, neither resolution No. 5612 nor the CEQA findings include a finding that the development agreement was consistent with the general plan and the Gateway Specific Plan.
Nevertheless, the trial court erroneously invalidated the ordinance approving the development agreement based solely on the City's failure to make the consistency finding. (§ 65867.5, subd. (b).) In order to invalidate the ordinance, the court had to find that the absence of the consistency finding resulted in prejudice and substantial injury and that a different result (e.g., disapproval of the ordinance) was probable absent the omitted finding. (§ 65010, subd. (b).) The court did not make this finding.
Indeed, Rialto Citizens did not claim in the trial court, and does not claim on this appeal, that any of the provisions of the development agreement were inconsistent with the general and specific plans, as these plans were amended
We next consider Wal-Mart's claims concerning the sufficiency of the EIR as an informational document, and the City Council's finding, in approving the project, that the reduced density alternative was infeasible. We find no prejudicial abuse of discretion on the part of the City Council, either in its certification of the EIR as complying with CEQA or in its rejection, at the project approval stage, of the reduced density alternative as infeasible.
In reviewing a petition challenging the legality of a lead agency's actions under CEQA, our role is the same as the trial court's. We review the agency's actions, not the trial court's decision, and our inquiry extends "only to whether there was a prejudicial abuse of discretion" on the part of the agency. (Pub. Resources Code, § 21168.5; see Cherry Valley Pass Acres & Neighbors v. City of Beaumont (2010) 190 Cal.App.4th 316, 326-327 [118 Cal.Rptr.3d 182] [Fourth Dist., Div. Two].) An abuse of discretion is established if the agency has not proceeded in a manner required by law or if its factual determinations are not supported by substantial evidence. (Pub. Resources Code, § 21168.5; Vineyard Area Citizens For Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426 [53 Cal.Rptr.3d 821, 150 P.3d 709].) For purposes of CEQA, substantial evidence "means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached." (Cal. Code Regs., tit. 14, § 15384, subd. (a).)
In reviewing the lead agency's actions under CEQA, we do not "`"`pass upon the correctness of the EIR's environmental conclusions, but only upon its sufficiency as an informative document.'" [Citation.] We 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. "Our limited function is consistent with the principle that `The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.'" [Citation.] We may not, in sum, substitute our judgment for that of the people and their local representatives. We can and must, however, scrupulously enforce all legislatively mandated CEQA requirements.'" (Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 905 [19 Cal.Rptr.2d 344].)
Still, "`[a]bsolute perfection is not required,'" and the level of analysis in an EIR "is subject to a rule of reason." (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 406-407.) The absence of information in an EIR does not per se constitute a prejudicial abuse of discretion. (Pub. Resources Code, § 21005.) Instead, "`[a] prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process. [Citation.]' [Citation.]" (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners, supra, 18 Cal.App.4th at p. 748.)
In the trial court, Rialto Citizens claimed, and the trial court agreed, that the project description in the EIR was incomplete and therefore inadequate because it did not include the development agreement in a listing of "permits and other approvals required to implement the project." (Guidelines, § 15124, subd. (d)(1)(B), italics added.) Wal-Mart claims the project description was not required to include the development agreement because the agreement was not a permit or approval required to implement the project. Wal-Mart is mistaken, but as we explain, the failure to identify the development agreement as part of the project did not preclude informed public participation and decisionmaking concerning the project, because the approval of the development agreement was duly noticed and considered at the July 1 and July 15,
As Wal-Mart points out, the purpose of a development agreement is to "vest the previously obtained approvals" or give assurance to the applicant that upon approval of the project it may proceed with the project in accordance with existing policies, rules and regulations. (§ 65864, subd. (b).) We disagree, however, with Wal-Mart's argument that a development agreement "does not, itself, constitute a permit or approval, much less a
Native Sun/Lyon Communities v. City of Escondido, supra, 15 Cal.App.4th 892 is instructive. There, a development agreement was included in the project description, but the contents of the agreement were not discussed in the EIR. (Id. at p. 909.) The court concluded, however, that it was unnecessary to discuss the development agreement in the EIR, because its inclusion in the project description "alerted persons interested in [the agreement] to its relevance in the decisionmaking process." (Ibid.)
Similarly, the inclusion of the development agreement in the notice of the public hearing on the project before the City Council alerted interested persons to its relevance in the decisionmaking process for the project. It was therefore unnecessary to discuss the development agreement in the EIR. Indeed, the provisions of the agreement were not germane to an analysis of the project's potential environmental impacts. (See Guidelines, § 15124 [project description should not supply extensive detail beyond that needed for evaluation and review of environmental impacts]; Pub. Resources Code, § 21083.1 [Guidelines are not to be interpreted to impose procedural or substantive requirements beyond those explicitly stated in the Guidelines].)
Rialto Citizens argues the City prejudicially erred in failing to discuss the development agreement in the EIR, because the development agreement provided that, upon certain conditions, Wal-Mart was to be reimbursed for traffic and storm runoff improvements it made outside the "footprint" of the project site. We disagree. The reimbursements were not germane to the environmental impacts of the project. Additionally, Rialto Citizens has not shown that the development agreement required Wal-Mart to make any improvements that were not discussed in the EIR. Thus it was unnecessary to discuss the development agreement in the EIR.
The trial court ruled that the EIR inadequately analyzed the project's cumulative impacts on traffic because the analysis was not based on "a list of anticipated projects," or "work off of a prior document that assembled such a list." (See Guidelines, § 15130, subd. (b)(1)(A).) The court pointed out that "rather than work off of a list of projects the cumulative traffic analysis was done by projecting traffic based on `updated socioeconomic data and the extension of the State Route 210 freeway to its current terminus.' ... This would appear to be insufficient under the Guideline[s], ... which requires either a list of anticipated projects or working off of a prior document that assembled such a list. Neither was done in the present case, and the general projections described in the EIR thus leave anyone examining the EIR unable to question what projects were included (or excluded) and thus unable to properly question the sufficiency of the analysis." (Fn. omitted.)
As we explain, the trial court misapprehended the basis of the EIR's analysis of the project's cumulative impacts on traffic. Although the analysis was not based on "[a] list of past, present, and probable future projects
In 1992, SANBAG adopted a CMP for San Bernardino County and updated the CMP biennially, including in 2005 before the draft EIR was prepared in May 2007.
The EIR's projections of the project's cumulative impacts on traffic was based on "the Rialto Wal-Mart Supercenter Draft Traffic Study (Traffic Study)," dated March 26, 2007, prepared by Meyer, Mohaddes Associates (MMA), and attached to the EIR as appendix No. 15.3.
Rialto Citizens argues that "using the standards" or the same computer model used in the CMP to project countywide traffic conditions "is not the same as relying on a `summary of projections'" contained in the CMP. (See Guidelines, § 15130, subd. (b)(1)(B).) We disagree. Effectively, the Comprehensive Transportation Plan (CTP) travel demand model included "a summary of projections" of traffic conditions in San Bernardino County. SANBAG, the agency responsible for developing, adopting, and updating the CMP, was required to "develop a uniform data base on traffic impacts for use in a countywide transportation computer model ...." (§ 65089, subds. (a), (c).)
Moreover, the EIR shows that this uniform data base included updated data on traffic conditions in San Bernardino County. The EIR explains that year 2030 traffic volumes were projected using a "refined version" of the CTP travel demand model, "developed by MMA in consultation with SCAG and Caltrans for use in the analysis of the proposed Duncan Canyon Road interchange on Interstate 15 ... in the City of Fontana .... This version of the model was used because it incorporates additional network detail in the Cities of Rialto and Fontana, as well as a representation of existing conditions, including updated socioeconomic data and the extension of the State Route 210 freeway to its current terminus. The 2030 network of the CTP model was modified by the addition of a new traffic analysis zone to represent the proposed project. Therefore, the 2030 model run represents
In the trial court, Rialto Citizens claimed that the EIR's analysis of the project's cumulative impacts on air quality was inadequate because it did not include "a substantial contributor to air pollution in the area: namely, the BNSF Railway yard," and, in excluding the railway yard, the EIR understated the severity of the cumulative impact. The trial court ruled that the analysis was inadequate because the EIR did not explain why it used "a 5 mile limit... for the air quality cumulative analysis." The Guidelines provide that "[l]ead agencies should define the geographic scope of the area affected by the cumulative effect and provide a reasonable explanation for the geographic limitation used." (Guidelines, § 15130, subd. (b)(3), italics added.)
Wal-Mart claims the EIR did not use a five-mile limit in analyzing cumulative air quality impact, and that it's analysis of the impact was adequate. Wal-Mart is correct on both points. As we explain, the EIR concluded that the project would have a significant cumulative impact on air quality based solely on the emissions from the project, and its analysis of this cumulative impact was adequate.
Table No. 4-1 of the EIR consists of a "cumulative projects list." The EIR explains that the cumulative projects list "identifies related projects and other possible development in the area determined as having the potential to interact with the proposed project to the extent that a significant cumulative effect may occur.... The resulting related projects primarily include those determined to be at least indirectly capable of interacting with the [project]."
There are a total of 72 projects on the cumulative projects list; 65 are within three miles of the project site and the other seven are between three and five miles from the project site. The list includes an 82,400-square-foot locomotive repair facility, a 49,050-square-foot lumber yard office and retail store, a 250,000-square-foot pallet repair and sales yard, warehouses, industrial buildings, office buildings, retail centers, multiple single-family residences, and apartment buildings. The BSNF railway yard is not on the list. A "Cumulative Projects Map" shows the location of each of the 72 projects in relation to the project site, and includes circles indicating the three- and five-mile radii from the project site.
The trial court acknowledged that the three- and five-mile boundaries "were drawn for the market impact analysis because these are the typical trade areas for neighborhood shopping areas and `big box' facilities," but then concluded: "This makes for a reasonable explanation for a 5 mile geographic limit being provided for the market impact cumulative analysis, but it does not constitute an explanation for why a 5 mile limit should be used for the air quality cumulative analysis." Similarly, Rialto Citizens argues the cumulative projects list is "arbitrary" because "[g]eographic limits on market impacts have very little, if anything, to do with the appropriate geographic limitation for air quality impacts."
To be sure, the EIR indicates that it analyzed the project's cumulative impacts on air quality based on the cumulative projects list in table No. 4-1, because it expressly states that it analyzed the project's cumulative impacts "in consideration of the projects identified in Table 4-1 ... with the exception of traffic and noise assessments." This was plainly not the case, however. Indeed, the analysis plainly shows that it was not based on the cumulative projects list at all, but on the project's emissions alone. Indeed, the EIR concluded that the project would have a significant cumulative impact on air quality because the project itself would "generate emissions that exceed the thresholds of significance recommended by the SCAQMD for ROG, NO
Substantial evidence shows that it was neither reasonable nor practical to analyze the project's cumulative impact on air quality by, for example, quantifying its emissions in relation to other nearby projects. The EIR explains: "The SCAQMD neither recommends quantified analyses of cumulative construction or operational emissions, nor does it provide separate methodologies or thresholds of significance to be used to assess cumulative construction or operational impacts. Instead, the SCAQMD recommends that a project's potential contribution to cumulative impacts should be assessed using the same significance criteria as those for project specific impacts. Therefore, individual development projects that generate construction-related or operational emissions that exceed the SCAQMD recommended daily thresholds for project-specific impacts would also cause a cumulative considerable increase in emissions for those pollutants for which the Basin is nonattainment."
The trial court concluded that the EIR was defective in two respects concerning its analysis and statements regarding the project's potential cumulative impacts on greenhouse gases and global climate change. Specifically, the court ruled: "The EIR improperly dismisses the cumulative impacts of Greenhouse Gas Emissions and Climate Change Impacts because of an inability to analyze the individual impacts of the Project," and "[t]he EIR in its body finds a significant and unavoidable impact as to greenhouse gasses and global climate change yet fails to separately list this impact among the significant impacts of the Project."
Wal-Mart claims both rulings are in error. We agree. As we explain, the EIR adequately addressed the project's cumulative impact on greenhouse gas emissions and global climate change, and properly concluded the impact was too speculative to determine. Thus the EIR did not, in fact, conclude the project would have a significant cumulative impact on global climate change, and there was therefore no need to list the impact in the EIR's "stand alone" list of significant and unavoidable impacts. We first address the "stand alone" listing issue, then we explain that the EIR adequately analyzed the project's cumulative impact on global climate change.
Based on the EIR's apparent indication that the project would have a significant and unavoidable cumulative impact on global climate change, Rialto Citizens claimed, and the trial court agreed, that the EIR was defective for failing to include in its "stand alone section" listing all significant impacts, that the project would have a significant impact on greenhouse gas emissions and global climate change. The court acknowledged, however, that "[t]he analysis of the global climate change issues seem[s] to be leading to the conclusion that no levels of significance could be determined, which makes the conclusion that there would be a significant and unavoidable impact appear to be unjustified."
Indeed, the EIR did not in fact conclude that the project's cumulative impacts on greenhouse gases and global climate change were significant and unavoidable. Pages 5.3-39 through 5.3-43 of the draft EIR show that the "significant and unavoidable impact" finding to which the trial court referred concerned the project's cumulative impact on air quality, not its cumulative impact on greenhouse gases and global climate change. Pages 5.3-39 through 5.3-43 include the draft EIR's discussion of the project's cumulative impacts on air quality and its cumulative impacts on global climate change.
Under the section of the draft EIR titled "global climate change," which appears on pages 5.3-40 through 5.3-42, the EIR discusses the project's cumulative impacts on greenhouse gases and global climate change. This discussion immediately follows the EIR's discussion of the project's cumulative impacts on air quality. At the top of page 5.3-43, following the end of global climate change discussion, the EIR states: "Level of Significance:
By contrast, in the section titled "global climate change," the EIR explains that: "Based on the current scientific literature, it would be speculative to determine whether the contribution of any particular project or plans to greenhouse gas emissions and climate changes is significant. Based on an investigation of [the project's] compliance with local air quality thresholds, future long-term operational impacts, and Wal-Mart's commitment to increasing the company's environmental sustainability goals and policies ... the project would still have the potential to result in impacts associated with greenhouse gas emissions and global climate change. However, there is significant uncertainty involved in making predictions of the extent [to] which the project operations have on greenhouse gas emissions and global climate change. Therefore, a conclusion on the significance of the environmental impact of climate change cannot be reached. ..." (Italics added.)
In view of the EIR's detailed explanation that the project's cumulative impacts on greenhouse gases and global climate change was too speculative to evaluate, and its immediately preceding conclusion that the project's cumulative impact on air quality would be significant and unavoidable, it is clear that the "significant and unavoidable impact" finding on page 5.3-41 of the EIR referred to the project's cumulative impact on air quality, not its too-speculative-to-determine cumulative impact on greenhouse gases and global climate change. This explains why the EIR did not list greenhouse gases and global climate change among the project's significant and unavoidable impacts in its "stand alone" sections listing these impacts. (Pub. Resources Code, § 21100, subd. (b)(3).) Given the EIR's contrary conclusion, there was no need to do so.
Wal-Mart claims that substantial evidence supports the EIR's conclusion that the project's cumulative impact on greenhouse gases and, by extension,
The trial court ruled that the EIR's analysis of the project's cumulative impacts on greenhouse gases and, by extension, global climate change, was "insufficient because it fails to address the cumulative impacts merely because a level of significance could not be determined for the Project's individual impact...." The court reasoned: "[I]t should be obviously impermissible to decline to analyze the cumulative impacts because it cannot be determined whether or not the individual impacts of the Project are significant; there is no showing in the EIR that levels of significance cannot be determined for the cumulative impact on greenhouse gasses."
We disagree with the trial court's premise that it was impermissible not to analyze the project's cumulative impact on greenhouse gases and global climate change because it was too speculative to determine whether the project's individual impact was significant. As noted, global climate change is necessarily and by definition a cumulative impact. (2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, § 20.83, p. 1033 (rev. 3/12).) Thus, the question presented in the EIR was whether the project's individual greenhouse gas emissions were significant in light of the existing global warming problem. (See City of Long Beach v. Los Angeles Unified School Dist., supra, 176 Cal.App.4th at pp. 905-906.)
The EIR states: "It is nearly universally recognized that the Earth is warming and that emissions of greenhouse gases from human activities contribute to global climate change." "California is a substantial contributor of global greenhouse gasses emitting over 400 million tons of [carbon dioxide] CO
The EIR acknowledges that on June 1, 2005, Governor Arnold Schwarzenegger signed Executive Order No. S-3-05, which established several "reduction targets" for greenhouse gas emissions for the State of California: By 2010, to 2000 levels; by 2020, to 1990 levels; and by 2050, to 80 percent below 1990 levels. Thereafter, the "Climate Action Team" (CAT), comprised of representatives from the California Environmental Protection Agency, CARB, and other state agencies, was convened. The CAT prepared the Climate Action Team Report to Governor Schwarzenegger and the California Legislature (Dec. 2010), which included, among other things, recommended strategies "to reduce climate change risks." Several of these
The EIR also acknowledges that the Legislature passed Assembly Bill No. 32 (2005-2006 Reg. Sess.) (the California Global Warming Solutions Act of 2006 or Assembly Bill 32) (Health & Saf. Code, §§ 38500-38599) on August 31, 2006. Assembly Bill 32 implements one of the "reduction targets" of Executive Order No. S-3-05 by requiring the State of California to reduce its global warming emissions to 1990 levels by 2020. (Health & Saf. Code, § 38550.) According to the EIR, this reduction was to be "accomplished through an enforceable statewide cap on global warming emissions that would be phased in starting in 2012." (See Health & Saf. Code, §§ 38562, subd. (a) [requiring CARB to "adopt greenhouse gas emission limits and emission reduction measures by regulation ... to become operative beginning on January 1, 2012"], 38560.5, subd. (a) [requiring CARB to publish, by June 30, 2007, "a list of discrete early action greenhouse gas emission reduction measures that can be implemented prior to the measures and limits adopted pursuant to [Health & Saf. Code, §] 38562."].)
Notwithstanding Assembly Bill 32's greenhouse gas emission limits and reduction measures, the EIR observed that Assembly Bill 32 "primarily provides a timeframe for establishing plans, policies, and studies to address global climate change," but did not "provide thresholds or methodologies for analyzing a project's impacts" on global climate change. The EIR also noted that while "several" unspecified "studies" were available regarding "the overall impacts associated [with] global climate change, the conclusions and predictions vary with each report." On this basis, the EIR concluded that the project's impacts on greenhouse gas emissions and global climate change were too speculative to determine. (Guidelines, § 15145.)
Indeed, when the EIR was certified in July 2008, there were no legal or regulatory standards for determining whether a given project's greenhouse gas emissions should be considered cumulatively. (See 2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, §§ 20.81-20.81A, pp. 1021-1026 (rev. 3/12).) As stated in the EIR, Assembly Bill 32 did not "provide thresholds or methodologies for analyzing a project's impacts" on global climate change. And, though the 2006 legislation acknowledged that "[g]lobal warming poses a serious threat to the economic well-being, public health, natural resources, and the environment of California" (Health & Saf.
To be sure, the absence of a "single methodology" that would provide a "precise" or "`universally accepted'" quantification of a particular impact does not excuse the lead agency from "do[ing] the necessary work to educate itself about the methodologies that are available." (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1370 [111 Cal.Rptr.2d 598].) Here, however, the City did the necessary work to educate itself about the methodologies that were available. The EIR acknowledges that "several studies are available regarding the overall impacts associated [with] global climate change," but observes that "the conclusions and predications vary with each report." The City did not decline to gauge the project's cumulative impact on greenhouse gases and global climate change merely because there was no single, universally accepted methodology for gauging the impact.
The trial court concluded that the EIR improperly deferred mitigation measures to reduce the project's potential impacts on five plant "special status" plant species (the San Diego ambrosia, Plummer's mariposa lily, smooth tarplant, Robinson's pepper-grass, and rayless ragwort) and three special status wildlife species (the San Bernardino and Stephens' kangaroo rats, and the western burrowing owl). Each of these species had a potential to occur on the project site.
Wal-Mart claims the mitigation measures to reduce impacts on these potentially occurring species were sufficiently definite and did not constitute
The EIR describes the project site "primarily as a fallow agricultural field" that is regularly cleared of vegetation, with the remaining vegetation consisting of "ruderal (weedy) species ...." The site was used for agricultural purposes for over 60 years.
On July 2, 2004, and November 8, 2006, biologists surveyed the site, recorded all wildlife and plants species observed on the site, and evaluated the site for its potential to support special status plant and wildlife species.
The EIR defines "special status" plant and wildlife species as species "afforded special status and/or recognition by Federal and State resource agencies" including the United States Fish and Wildlife Service (USFWS) and California's Department of Fish and Game (CDFG), or the California Native Plant Society (CNPS), a private organization.
No special status wildlife or plant species were found during the 2004 and 2006 surveys, but the EIR concluded that five special status plant species (the San Diego ambrosia, Plummer's mariposa lily, smooth tarplant, Robinson's pepper-grass, and rayless ragwort) and three special status wildlife species (the San Bernardino and Stephens' kangaroo rats, and the western burrowing owl) each had a "potential" to occur on the project site.
The five special status plant species having the potential to occur on the project site, including the San Diego ambrosia, were each considered "rare, threatened, or endangered" by the CNPS. The San Diego ambrosia and the San Bernardino and Stephens' kangaroo rats were also identified as federally endangered species. The burrowing owl was identified as a California "Species of Special Concern," an "informal designation used by the CDFG for some declining wildlife species ...." The designation does not provide legal protection, but signifies that the species is recognized as having special status by the CDFG.
The EIR required that mitigation measures be undertaken, prior to the issuance of a grading permit, for the special status plant and wildlife species having the potential to occur on the project site. With the implementation of these measures, the EIR concluded that impacts to the species would be less than significant.
A "qualified botanist" is to conduct surveys for each of the special status plant species, and the results are to be provided to the City. If fewer than 20 individuals of any of the five plant species are found, no further action will be required, but if 20 or more are found, a qualified botanist is to conduct a plant salvage and transportation plan through the applicant. The plan is to be submitted to the City "prior to site grubbing/grading for review and comment," and is to "identify the program for transplanting the individuals into a receiver site located onsite in permanent open space." The receiver site or "mitigation site" is to be protected by fencing and signage, and maintained for a period of three years. Additionally, "[i]f the performance criteria adopted for the project (to be outlined in the plan, but shall be no less than 80-percent establishment of the individuals) has not been met by the end of this three-year period, then the maintenance and monitoring period will be extended to five years to facilitate plant establishment. The project applicant shall be responsible for the preparation and implementation of the plan."
The EIR also stipulates that if the surveys discover any state-listed threatened or endangered species, then "a 2080 Incidental Take Permit may be required from the CDFG." And if the surveys discover any federally-listed threatened or endangered species, then "the project would require consultation with the USFWS to determine the permitting requirements." The permitting process shall include preparation of "plant salvage and transportation plan to avoid, relocate or minimize impacts on these species. This plan shall be submitted to and approved by the USFWS and CDFG, as required."
In order to mitigate impacts on the two federally endangered rat species, the EIR requires a qualified mammalogist to conduct a habitat assessment prior to the issuance of a grading permit and determine whether trapping efforts are necessary. If habitats are found during the habitat assessment, "trapping sessions would be conducted per USFWS protocol." If either species is found, the applicant is required to "consult with the USFWS and/or City of Rialto to determine the appropriate off-site mitigation, which requires that mitigation/compensation for the loss of the kangaroo rats be approved through Section 10(a) consultation pursuant to the [federal Endangered Species Act of 1973 (16 U.S.C. § 1531 et seq.)], as well as specific measures, including, but not limited to, avoidance, minimization and purchase of suitable off-site habitat, as well as monitoring and funding for the maintenance of the site."
The EIR describes the burrowing owl as "a small owl that often nests in the abandoned burrows of the California ground squirrel, which were observed on the project site. Burrowing owls are known to use both fallow and active agricultural fields for foraging and nesting. Because the majority of the project site consists of fallow agricultural land, there is potential for the burrowing owl to occur on the project site."
Prior to grading, a qualified biologist is to survey the site to "identify suitable burrow(s) and the location(s) of occupied burrow(s)." Though the project site is in San Bernardino County, the EIR requires the biologist to "generally follow" the Burrowing Owl Survey Instructions for the Western Riverside Multiple Species Habitat Conservation Plan Area" (MSHCP) (County of Riverside 2006). The USFWS and the CDFG have "officially approved" the protocol provided in the survey instructions.
Following the burrow survey, four additional surveys that "focus on owls" are to be conducted during the burrowing owl breeding season (Mar. 1-Aug. 31). The survey results would be submitted to "the City of Rialto and/or CDFG." If a burrowing owl is not found on the site, no further mitigation would be required. But if a burrowing owl is observed during the surveys, "the ... [a]pplicant would be required to consult with the [l]ead [a]gency to determine appropriate mitigation, based on conditions at the project site."
The Guidelines state: "Formulation of mitigation measures should not be deferred until some future time. However, measures may specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way." (Guidelines, § 15126.4, subd. (a)(1)(B).)
In sum, "it is sufficient to articulate specific performance criteria and make further [project] approvals contingent on finding a way to meet them." (Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 793 [32 Cal.Rptr.3d 177].) Essentially, the rule prohibiting deferred mitigation prohibits loose or open-ended or performance criteria. Deferred mitigation measures must ensure that the applicant will be required to find some way to reduce impacts to less than significant levels. If the measures are loose or open-ended, such that they afford the applicant a means of avoiding mitigation during project implementation, it would be unreasonable to conclude that implementing the measures will reduce impacts to less than significant levels.
The trial court concluded that the EIR's mitigation measures to reduce impacts on the potentially occurring special status plant and wildlife species were insufficient because "the City has not even required the applicant to comply with the recommendations made by the USFWS or CDFG; the EIR merely requires the project applicant to `consult' with these entities." Specifically regarding the San Bernardino and Stephens' kangaroo rats, the court ruled that "viewing the mitigation measure as a whole," the applicant "could fulfill its duties by consulting with the public agencies and then deciding that an appropriate mitigation measure would be throwing the trapped animals into the ocean. Once again the mitigation measure just leaves too much unresolved and is insufficient."
Respectfully, the trial court misinterpreted the "consultation" requirement. The EIR explains that "[i]mpacts to [federally endangered] species resulting from the implementation of a project would require the responsible agency to consult the USFWS. Formal consultations must take place with the USFWS pursuant to Section 10 of the Endangered Species Act, with the USFWS then making a determination as to the extent of impact to a particular species. If the USFWS determines that impacts to a species would likely occur, alternatives and measures to avoid or reduce impacts must be identified."
Thus the "formal consultation" requirement does not allow the applicant or the City to unilaterally decide what to do with any federally endangered species found on the project site, after conferring with the USFWS. Instead, the applicant must consult with "the USFWS and/or City of Rialto," the City must in turn consult with the USFWS "to determine the appropriate off-site mitigation, which requires that mitigation/compensation for the loss of the
These measures were sufficiently definite to ensure that potential impacts to the San Bernardino and Stephens' kangaroo rats will be mitigated. (Defend the Bay v. City of Irvine, supra, 119 Cal.App.4th at p. 1276 [no improper deferral of mitigation where developer required to consult with the USFWS and CDFG, obtain permits, and adopt seven itemized avoidance measures in coordination with the agencies].)
The measures required to reduce potential impacts on the federally protected San Diego ambrosia were likewise sufficient. These required "consultation with the USFWS to determine the permitting requirements," which were to "include preparation of plant salvage and transportation plan to avoid, relocate or minimize impacts on these species." The plan was to be "submitted to and approved by the USFWS and CDFG, as required." (See Defend the Bay v. City of Irvine, supra, 119 Cal.App.4th at p. 1276.)
At a minimum, the agency-approved plan to preserve the San Diego ambrosia is to comport with the plan described in the EIR, which requires the applicant to maintain each of the five special status plant species in an open space area on the project site for three to five years in the event 20 or more individual plants of any of the species is found on the site prior to grading. Though this plan does not require state or federal approval as applied to the four other special status plant species, it ensures that the applicant will reduce impacts on these species to less than significant levels.
Finally, the trial court ruled that the measures to reduce potential impacts on the burrowing owl were insufficient because they only required consultation with the City to determine the appropriate mitigation. This disregards the specifics of the burrowing owl mitigation plan. The applicant is to conduct an initial survey to identify "suitable burrow(s) and the location(s) of occupied
The proposed project evaluated in the draft EIR consisted of a 284,000-square-foot commercial center, anchored by a 250,000-square-foot Wal-Mart Supercenter with four commercial outparcels. The draft EIR also evaluated a smaller-scale alternative, the "reduced density alternative" (RDA), which excluded the four commercial outparcels but retained the 250,000-square-foot Wal-Mart Supercenter. In the final EIR, the project was revised to reduce the size of the Wal-Mart Supercenter to just under 200,000 square feet, but the revised project included the four commercial outparcels. Thus, the overall square footage of the revised project, which the City ultimately approved, was 230,000 square feet — smaller than the RDA.
In its CEQA findings, the City found that the revised project, like the original project, would still have significant impacts on traffic, noise, and air quality, despite the reduced size of the Wal-Mart Supercenter. Also in the CEQA findings, the City rejected the RDA as "infeasible" for two reasons: (1) it would not fulfill all of the project's objectives and (2) it was not "environmental[ly] superior [to the revised project] with regard to those impacts that are considered to be a significant Project impact."
Specifically, the City found that "[b]y not developing the outparcel sites, the stated objective to `[c]reate an opportunity for synergistic mix of retail and restaurant tenants in the City of Rialto providing residents with additional shopping and eating options,' would not be achieved. The remaining Project objectives would be fulfilled by the [RDA], but to a lesser degree than the proposed Project. Furthermore, [the RDA] is not environmental[ly] superior with regard to those impacts that are considered to be a significant Project impact. Accordingly, this Council finds the [RDA] infeasible and rejects the [RDA]."
Wal-Mart claims that substantial evidence supports the City's finding rejecting the RDA as infeasible. We agree.
The judgment is reversed. Real parties in interest shall recover their costs on appeal.
McKinster, Acting P. J., and Miller, J., concurred.
