California Supreme Court Rejects Greenhouse Gas Analysis for Newhall Ranch Development

By GGU Emeritus Prof. Alan Ramo

The California Supreme Court in a key climate change case probably surprised a few observers in rejecting the California Department of Fish and Wildlife’s (CDFW) greenhouse gas analysis of the giant Newhall Ranch development in Northwest Los Angeles County pursuant to the California Environmental Quality Act (CEQA).[1] After all, lower state courts have been rather deferential to challenges to the implementation of California’s Global Warming Solution Act (known as AB 32).[2] Greenhouse gas analysis is the kind of technical expert analysis that courts hesitate to wade in on.

What is remarkable is that the Court’s large majority (5-2) did not hesitate to dive into the analysis contained in the project’s Environmental Impact Report and found a fundamental flaw in the project level analysis that sought to mimic the state’s approach to greenhouse gas regulation.  Perhaps even more alarming to proponents of greenhouse gas emitting projects, the Court, while accepting the AB 32 implementing Air Resources Board’s (ARB) calculation of a 29% reduction in emissions from business as usual by 2020 as a legitimate CEQA “threshold” for significance, questioned whether that threshold will remain applicable to projects which will emit greenhouse gases beyond 2020.  And lurking in the Court’s willingness to question the validity of the project’s business as usual projection is an appetite to scrutinize the interworkings of such hypothetical baselines where trading programs in the past have been gamed to give the appearance of reductions where none have appeared.[3] Those who are invested in the AB 32 approach to a Cap, as part of the Cap-and Trade program, may actually have to be judicially accountable if the projections are indeed manipulated to avoid real emission reductions.

As this case is brought under CEQA, the Court’s analysis is through a CEQA lens rather than simply a policy analysis.  The legal issue before the Court is whether the EIR properly analyzed whether the greenhouse gases from the proposed development (anticipated to house more than 50,000 people) are significant, and therefore, require mitigation, or, if there are unavoidable impacts after deploying all feasible and reasonable mitigations, a statement of overriding considerations if the project’s benefits are deemed to outweigh its impacts.

The Court states the question as whether this project, together with present and future projects, is cumulatively considerable.  It eventually finds that while the project will add greenhouse gases to the environment, the issue is really whether the added emissions are less than what would happen without the project, because after all, the population that would live in the City will live somewhere, and somewhere else may lead to even more emissions.  Further, the project should be designed to contribute its appropriate share of reductions consistent with the State’s AB32 program, which is a plan to address the cumulative contribution of California to the global climate change problem.  The Court cites extensively to an article authored by the Bay Area Air Quality Management District’s counsel, Sandy Crockett, published by the GGU Environmental Law Journal.[4]

The Court specifically upholds the use of the ARB’s calculation that a 29% reduction from its projected business as usual emissions for 2020 is an acceptable first step to address the cumulative problem, and therefore, that can be applied as a threshold for significance for a project.  However, here is the rub.  While one may simplistically leap to the conclusion, as Fish and Wildlife and the appellate court in this case did, that therefore any project that achieves a reduction greater than 29% from a business as usual scenario is not significant (Newhall projects a 31% reduction from its assumed business as usual calculation), it turns out this determination is more complicated.

First, what is the business as usual scenario for the population that would end up living in Newhall?  That turns out to be a somewhat murky question.  While the minority judges are ready to hold up their hands and say, that is one for the experts, the majority say as with all CEQA findings that this must be explained with reasoned analysis based upon facts.  The Court here finds that Fish and Game failed to do so, and suggests that in fact by making unsupported assumptions about the impacts of the density of the project versus the density of living sites for the business as usual population used by the ARB, the agency may or may not have skewed the result.

Even more important, the Court recognized that the ARB’s business as usual scenario and its 29% reduction is an across the board average.  That is, for example, there may be some projects in the future that can only be expected to reduce their emissions by 15% while others can be reasonably expected to reduce by 45%, for example.  The fact that this project is reducing its emissions by 31% may or may not undermine the business as usual projections.  The Court argues that in taking the ARB’s projected reduction to an individual project requires a project specific analysis of how the project fits into the statewide analysis.

The Court identifies at least three ways the project may correct its analysis.  First, evaluate the assumptions behind the ARB’s business as usual analysis and link those to the individual project.  Second, demonstrate the project is using mitigation measures consistent with requirements under AB 32.  The court notes that these requirements may be limited to specific impacts, however, so it would be better if local or regional agencies developed greenhouse gas plans consistent with AB 32 that would incorporate the project.  Third, to the extent regional agencies have developed numerical thresholds for individual project greenhouse gas emissions (the example used by the Court is the BAAQMD’s thresholds) abide by those numbers.  If the project exceeds those thresholds, then the project may adopt all feasible mitigation measures and, if still significant, issue a statement of overriding considerations.  Considering that Newhall’s project already has a statement of overriding considerations for other impacts, this author wonders whether this would be the simplest and most defensible approach, especially given Newhall’s representation it has designed a green project with the latest and best mitigations.

The larger implications of this decision are quite profound.  A simple analysis based on the ARB 29% reduction calculation will not be sufficient.  Further, as 2016 approaches, this figure may soon be outdated and far greater reductions will be required for such large greenhouse gas emitters.  Finally, and most important perhaps, the Court’s majority has shown it is not afraid to engage in the more technical aspects of greenhouse gas emission regulatory programs and baseline and business as usual calculations.[5] While it can be expected that it will show due deference to agencies such as the ARB, fundamental gaps or gaming in the use of baselines or projections that could undermine environmental protections will not automatically be ignored.

[1] Center for Biological Diversity v. California Dept. of Fish and Wildlife 2015 WL 7708312 (November 30, 2015).

[2] Our Children’s Earth Foundation v. California Air Resources Board, 234 Cal.App.4th 870 (1st Dist., 2015); Association of Irritated Residents v. California Air Resources Bd., 206 Cal.App.4th 1487 (1st Dist. 2012).

[3] For an analogous situation, though not cited by the Court, see Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, 57 Cal. 4th 439 (2013), discussed by GGU’s Professor Paul Kibel in Sea Level Rise, Saltwater Intrusion and Endangered Fisheries – Shifting Baselines for the Bay Delta Conservation Plan, 38-SPG Environs Envtl. L. & Pol’y J. 259, Spring 2015 at 260 et seq.

[4] 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.

[5] See note 3.

Posted in Air and Environmental Justice, Climate Change

GGU Alumna and Adjunct Kristin Henry featured in Politico story on War on Coal

By Prof. Alan Ramo

GGU alumna and adjunct Kristin Henry, senior attorney with Sierra Club’s Law Office in San Francisco, is featured in Politico’s May 26, 2015 special report Inside the War on Coal. The report describes in detail Sierra Club’s successful grass roots and legal strategy to phase out coal-fueled power in favor of renewables.

I am proud of Kristin’s excellent work.  It is a model for how environmental attorneys can use the courts to achieve progress on climate change.

Posted in Climate Change

Our Children’s Earth Foundation v. CARB: Accommodating the Inherent Flaws of the Offset Provisions Under California’s Cap and Trade Program.

By Collin McCarthy,  GGU 3rd Year Law Student

On February 23, 2015, the First District Court of Appeal delivered its opinion in Our Children’s Earth Foundation v. California Air Resources Board, affirming the Superior Court’s ruling and upholding the offset provisions within California’s Cap-and-Trade greenhouse gas (GHG) reduction program.   While the Court’s opinion is a thorough legal vindication of California’s approach to offsets, it raises fundamental policy issues that suggest the program may not be an effective tool for greenhouse gas reduction. Continue reading

Posted in Air and Environmental Justice, Climate Change

Black Mesa Water Coalition v. Jewell: The Ninth Circuit Defines Co-Party Entitlement to Fees Under an Administrative Fee-Award Provision

By Collin McCarthy, GGU 3rd Year Law Student

On January 26,2015, the Ninth Circuit issued a ruling on a question of first impression for the court: whether a party may recover fees under the Surface Mining Control and Reclamation Act

(SMCRA) when its administrative challenge to a permit is declared moot as a result of a co-party’s success on a substantially similar motion for summary judgment. While the issue was not resolved in its entirety, the court concluded that such parties may be eligible to recover their fees and costs, provided they achieved some degree of success on the merits and made a substantial contribution to a full and fair determination of the issues. Significantly, although it remains uncertain exactly what amounts to a “substantial contribution” to a determination, it is clear that achieving “success on the merits” is not determined solely based on the captions and docket number attached to the motion granted. Continue reading

Posted in Land Use

Report by GGU and UC Berkeley Faculty Finds CPUC Ex Parte Rules Unusual and Needing Reform

By GGU Assoc. Prof. Deborah Behles

The California Public Utilities Commission (CPUC) has an unusual way of doing business. Most state and federal regulatory agencies prohibit private, closed-door discussions with interested parties about contested matters (ex parte communications). The CPUC largely does not even  though it makes decisions affecting the welfare of Californians and the disposition of billions of dollars.  To the contrary, most commissioners and their advisors encourage such private meetings in all but the most judicial, “adjudicatory” cases. These ex parte conversations occur in proceedings that may have had many elements of a traditional judicial process including formal testimony, discovery, evidentiary hearings, and pleadings. The agency’s procedures and process is intended to ensure fair treatment for all effected parties, and the ultimate decision is required to be based solely on the public record in the proceeding. Nonetheless, interested parties communicate with decision-makers by phone and email, and socialize with those same decision-makers conferences and retreats.

This way of doing business has become awkward for the agency in the last few months, as stories have surfaced about various discussions of substantive issues in pending proceedings. In some instances, even the existing rules would have prohibited the conversations. In others, the rules allow them, but public notice should have been provided. As the revelations continue to mount, state and federal law enforcement agencies are investigating, legislation is being considered, and the CPUC is trying to figure out what changes in its protocols are in order. Continue reading

Posted in Uncategorized

New publication on Okinawa, Environmental Justice and Judicial Militarism

My new article on the Okinawa controversy over a US Marine base relocation that has stirred a new battle in San Francisco Federal District Court, and transformed Okinawa politics, is now available on Westlaw.   The full cite is:   Alan Ramo, GGU Professor of Law, U.S. Military Accountability For Extraterritorial Environmental Impacts: An Examination Of Okinawa, Environmental Justice, And Judicial Militarism, 28 Tul. Envtl. L.J. 53 (2014).  Here is the extract:

Local resistance to the relocation of a U.S. military base to a bay threatening an endangered sea mammal off the coast of the island of Okinawa raises important issues regarding the extraterritoriality of U.S. environmental laws, the role of the courts in reviewing military operations, and ultimately environmental justice. These issues are being played out in an island community that for centuries has tried to survive by balancing the great powers of China, Japan, and the United States. Okinawans now find themselves a minority subject to discrimination in Japan and still suffering from the impacts of the legacy of U.S. occupation and continued use of U.S. bases on their culture, economy, and environment.
Federal courts continue to inconsistently sort out the extraterritoriality of U.S. laws, including environmental laws. Already one federal court has applied the National Historical Preservation Act to this controversy in Okinawa. Strong arguments remain that the National Environmental Policy Act and the Endangered Species Act should also apply to the U.S. military’s actions in Okinawa. Although the modern United States Supreme Court has reversed earlier cases and given great deference to military operations, a form of judicial militarism, environmental justice demands and case law allows these environmental laws to shape U.S. military conduct on Okinawa and protect its environment.
Posted in Uncategorized

EPA Chief Seems Clueless on EJ Advocates’ Critique of Proposed Greenhouse Gas Power Plant Rule

By GGU Prof. Alan Ramo

A report of the October 1st meeting of the US Environmental Protection Agency’s National Environmental Justice Advisory Committee in Environment and Energy Publishing’s website caught my attention for two reasons.  First, in the October 2nd, 2014, article written by E&E reporter Robin Bravender, “Top brass on defense as environmental justice advocates slam climate rule”, EPA Chief Gina McCarthy reportedly acted “surprised” when a NEJAC member criticized the new EPA greenhouse gas power plant rule.  McCarthy apparently was not aware that her Environmental Justice office widely advertised a July 21, 2014, webinar entitled, “What’s at Stake:  Environmental Justice and the EPA’s Clean Power Plan.”  That webinar, sponsored by WEACT, featured a number of environmental justice advocates, including Brent Newell of the Center on Race, Poverty & the Environment, who roundly criticized aspects of the proposal.  (For webinar, go to and scroll down to “webinar.”) Continue reading

Posted in Air and Environmental Justice, Climate Change

New Paper on Community Gardens from GGU’s Progressive Cities Project

In Spring 2014 GGU, under the direction of Associate Professor Kathleen Morris, hosted a groundbreaking collaboration between cities seeking law and policy advice and GGU law students. In response to client questions, over several months our students produced wonderful law and policy papers that will be put to use in the real world.

One paper in particular caught our attention at CUEL as it fits within one of our themes of “Urban Greenspace.”  The paper is entitled, “Progressive Cities:  Models for Using Public Land for Community Gardens”, by Lynne Rose Maylath, and can be accessed on our Greenspace page here.  A related blog page from a few years ago on San Francisco’s efforts can be accessed here.

Posted in Urban Greenspace

Prof. Ramo On Twitter

GGU’s Prof. Ramo will post tweets on his account whenever the CUEL blog has a new post, or something exciting in environmental law is brewing.  He is at greenlaw@envirolawprof.

Posted in Uncategorized

Supreme Court OKs Calif. Low Carbon Fuel Standard

By Alan Ramo

The Supreme Court today refused to consider a petition requesting review of the Ninth Circuit’s approval of California’s Low Carbon Fuel Standard.  The court provided no reasons.  See our blog on the En Banc decision upholding the standard.  It is a real win for one of the state’s most important climate change policies and for a more practical approach to the dormant commerce clause.  The decision should encourage the states to fashion innovative climate change policies in the absence of comprehensive federal policy, an explicit goal of the Ninth Circuit in its decision.

Posted in Air and Environmental Justice, Climate Change