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Calif. SC not impressed with environmental impact report, halts L.A. County project

By Jacob Bielanski | Jan 19, 2016

San Joaquin River

SAN FRANCISCO (Legal Newsline) - A November ruling by the California Supreme Court halted a 12,000-acre development in Los Angeles County, determining that an impact report submitted by a state agency was insufficient.

The decision interprets the California Environmental Quality Act and delays the planned Newhall Ranch development along the Santa Clara River north of Los Angeles. In spite of this, attorney Charity Schiller of Best Best and Krieger said CEQA was not designed to prevent development of projects requiring environmental reports.

“CEQA is not designed to stop projects … it's designed to help fully analyze and disclose projects,” Schiller said.

Schiller said the decision, which ruled that the 5,000-plus-page environmental impact report compiled by the California Department of Fish of Wildlife was insufficient, sets a “new level of rigor” with regards to greenhouse gas emissions.

The courts specifically ruled against two parts of report.

In one ruling, it found that the standards used by the California Department of Fish and Wildlife were not sufficient in determining the project’s greenhouse gas emissions. In its report, the DFW argued that no “significant” facts or analyses existed for determining a threshold, and thus used a state standard for determining the that the new project would produce 31 percent less emissions than if the project were conducted under “business as usual.”

The court, however, found that there was sufficient evidence to warrant deeper analysis by DFW in determining CEQA compliance.

Justices said that what the DFW determined as “significant” was, Schiller said, a legal determination and not a factual one.

“It’s difficult to divorce the threshold of significant from the analysis that preceded under it,” Schiller said.

"I think that what[ever] threshold is significant, [that] an agency chooses, should also be treated as a factual determination and not a legal one.”

In spite of this, Schiller said the court also noted in its opinion that this ruling doesn’t attempt to stop agencies from determining their own threshold of significance, but that those thresholds have to be thoroughly supported.

“We now have Supreme Court precedent saying the analysis of greenhouse gases from a ‘business as usual’ perspective is going to have to be more detailed,” Schiller said.

In addition to the greenhouse gas provision, the ruling also found that a proposed plan to preserve a protected fish violated state law.

The report proposes capturing and relocating unarmored threespine stickleback fish, which has status as “fully protected” in California. Justices found, however, that “taking” of fully protected species was illegal, and could not be used as a mitigation strategy.

As a result of the ruling, Schiller said developers will have to keep their “eye on the ball” when it comes to conducting analysis for CEQA compliance

The Newhall Ranch project was originally approved by the Los Angeles County Board in 2002. An environmental impact report was jointly drafted by DFW and U.S. Army Corps of Engineers in 2009. The final report was submitted in 2010 as part of the CEQA compliance requirements for the project.

The Center for Biological Diversity was the named plaintiff in the case. The group purports to “work to secure a future for all species, great and small, hovering on the brink of extinction.”

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