COMMUNITIES FOR A BETTER ENVIRONMENT v. CITY OF RICHMOND No. A125618.
184 Cal.App.4th 70 (2010)
COMMUNITIES FOR A BETTER ENVIRONMENT et al., Plaintiffs and Respondents, v. CITY OF RICHMOND, Defendant and Appellant; CHEVRON PRODUCTS COMPANY et al., Real Parties in Interest and Appellants.
Court of Appeals of California, First District, Division Four.
April 26, 2010.
Randy E. Riddle, City Attorney, K. Scott Dickey, Chief Deputy City Attorney; Shute, Mihaly & Weinberger, Ellen J. Garber, Jeannette M. MacMillan and Kristin B. Burford for Defendant and Appellant.
Pillsbury Winthrop Shaw Pittman, Ronald E. Van Buskirk, Kevin M. Fong and Todd W. Smith for Real Parties in Interest and Appellants.
Communities for a Better Environment, Adrienne L. Bloch, Shana Lazerow; Earthjustice, William B. Rostov and Deborah S. Reames for Plaintiffs and Respondents.
Matthew Vespa for Center for Biological Diversity, Environmental Defense Center and the Planning and Conservation League as Amici Curiae on behalf of Plaintiffs and Respondents.
On April 6, 2005, Chevron Products Company (Chevron) submitted an application to the City of Richmond (City) for the necessary permits to proceed with construction of the Chevron Energy and Hydrogen Renewal Project (the Project). The Project was designed to replace and upgrade certain manufacturing facilities at the Chevron Richmond Refinery (the Refinery), with the objective of improving the Refinery's ability to process a more varied mix of crude oil types from a wider variety of sources than it currently processes. Approximately three years later, on July 17, 2008, by a five-to-four vote, the Richmond City Council (City Council) issued Chevron the necessary permits to proceed with construction of the Project after finding that the
Communities for a Better Environment, West County Toxics Coalition, and the Asian Pacific Environmental Network (collectively, respondents) filed a petition for writ of mandate against the City and Chevron, arguing that the environmental review of the Project was flawed because the EIR failed to disclose, analyze and mitigate all the potential environmental impacts of the Project. The trial court granted the writ, holding that the EIR violated CEQA based on its failure to provide an adequate project description, its failure to consider the whole project, and its failure to define mitigation measures for greenhouse gas emissions. Chevron appeals, arguing the trial court's decision was "based on erroneous factual assumptions regarding the nature of the Project, application of the incorrect standard of review, and clear legal error." We affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
Chevron is an oil refiner based in California, whose parent corporation is Chevron Corporation, a Delaware corporation based in San Ramon, California. The Refinery is located on approximately 2,900 acres along the western edge of the City in Contra Costa County, occupying most of the Point San Pablo Peninsula. The Refinery is situated near a populated area— portions of five residential neighborhoods are within a one-mile radius of the Refinery. The Refinery processes crude oil into a variety of fuel and oil products, such as gasoline for passenger cars; jet fuel for aircraft; diesel fuel for trucks, trains and buses; and lubricating oils for motor vehicles and other uses.
This case involves a project proposed by Chevron which would allow the Refinery to increase production of gasoline by approximately 6 percent (300,000 gallons per day) that would meet California Air Resources Board (CARB) standards, and which could be sold in California. However, there would be an equivalent decrease in production of that portion of total Refinery gasoline that does not meet CARB standards. Therefore, the Project would not increase the Refinery's consumption of crude oil, although it is
It was anticipated that the "future crude and gas oil supplies" to be processed in the post-Project Refinery would contain higher amounts of sulfur and associated contaminants. The sulfur content of incoming crude varies, with a typical content being around 1.7 percent. The Refinery currently can process a crude mix of approximately 2 percent sulfur with existing equipment. However, new equipment installed under the Project will increase this capability to 3 percent sulfur.
The record indicates that the "Project involves expenditure of hundreds of millions of dollars ...." There are four major components of the Project designed primarily to replace and upgrade existing equipment and units at the Refinery. They are (1) the "Hydrogen Plant Replacement," (2) the "Power Plant Replacement," (3) the "Catalytic Reformer Replacement," and (4) the "Hydrogen Purity Improvements." The Hydrogen Plant Replacement is identified as a "key element" of the Project which, when combined with the new Power Plant and Catalytic Reformer Replacements, will allow Chevron to replace older, less efficient equipment with new equipment and facilities that provide improved reliability, energy efficiency, better environmental controls, and will enable "the production of a larger portion of clean California gasoline." Other components of the Project include replacing 10 existing tanks, constructing eight new storage tanks, and constructing a new central control room and a new maintenance facility. The Project will also involve modifying, replacing, and installing refinery equipment including piping, heat exchangers, instrumentation, catalytic reactors, fractionation equipment, pumps, compressors, furnaces, and tanks. All of the new equipment and facilities will be located within the boundaries of the existing Refinery, and will generally be placed among similar existing equipment.
On June 15, 2005, the City issued a notice of preparation (NOP) that an EIR would be prepared for the Project. The draft EIR was published on May 11, 2007, with a 45-day public review period. The draft EIR was reviewed by various governmental agencies, as well as numerous interested individuals and organizations. At the request of members of the public, the City extended the review period until July 9, 2007, for a total review period of 59 days. A public hearing was held on June 7, 2007, and 24 members of the public commented.
On June 5, 2008, the Richmond Planning Commission (Planning Commission) certified that the final EIR was completed in compliance with CEQA. Respondents then appealed the Planning Commission's certification of the final EIR to the City Council. Chevron filed a separate appeal to the City Council challenging certain mitigation measures adopted by the Planning Commission.
The City Council heard public comment during a hearing beginning on July 15, 2008, and continuing into the early morning hours of July 17, 2008. On the first night of the hearing, Chevron presented the City with a "community benefits agreement," which was a $61 million package to fund various civic improvements. In return, among other things, the City was obligated to create a fast track for additional future permitting for the Project, if it was approved.
On July 17, 2008, by a five-to-four vote, the necessary permits for the Project were approved by the City Council, subject to numerous conditions addressing Project construction, air quality, greenhouse gas emissions, refinery gases, and water quality. It was determined that all significant environmental effects due to the Project's approval "have been eliminated or substantially lessened where feasible." The City Council also certified that the final EIR for the Project had been completed in compliance with CEQA. Both Chevron's and respondents' appeals from the Planning Commission's decision were denied.
On September 4, 2008, respondents filed a petition for writ of mandate and complaint for injunctive relief requesting the superior court to set aside the City Council's certification of the EIR and approval of the Project permits. Primarily, respondents argued that the EIR was inadequate based on its alleged failure (1) to disclose and analyze the likelihood that the Project would increase the Refinery's ability to process heavier, lower quality, and more-contaminated crude; (2) to analyze and provide adequate mitigation for greenhouse gas emissions from the Project; (3) to include a proposed new
The matter was argued on May 20, 2009. On July 1, 2009, the trial court entered judgment in favor of respondents on three issues. The court found that the EIR was deficient because it was "unclear and inconsistent as to whether [the] [P]roject will or will not enable Chevron to process a heavier crude slate than it is currently processing." The court further held that the City had "improperly deferred the formulation of greenhouse gas mitigation measures" by allowing Chevron to prepare a mitigation plan for submission to City staff up to a year after the Project's approval. The court also declared that Chevron had improperly "`piece-mealed'" the Project, by failing to include and analyze a hydrogen pipeline as part of the Project. The court then concluded that it was not "necessary to reach the other issues ... because the above violations require revision of the EIR." Accordingly, the trial court entered judgment granting the writ and setting aside the Project's EIR, invalidating all of the Project permits, and suspending all Project-related construction activities.
Chevron filed a notice of appeal on July 20, 2009. The City filed a separate appeal, raising no challenge to the trial court's resolution of the issues, but requesting solely that this court decide the issues left undecided by the trial court. On August 4, 2009, this court granted Chevron's motion for calendar preference and for an expedited briefing schedule. (Cal. Rules of Court, rule 8.240.)
A. CEQA Overview
In reviewing compliance with CEQA, we review the agency's action, not the trial court's decision. (Vineyard Area Citizens, supra, 40 Cal.4th at p. 427.) In doing so, our "inquiry `shall extend only to whether there was a prejudicial abuse of discretion.' [Citation.]" (Id. at p. 426.) Abuse of discretion is established "if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence." (§ 21168.5.) Substantial evidence in this context 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." (Guidelines, § 15384, subd. (a).)
B. The Project Description Is Unclear and Inconsistent As to the Specific Gravity of the Crude Oil That Could Be Processed
A stated objective of the Project is "to improve the Refinery's ability to process a more varied proportional mix of crude oil types than it currently processes, including crude oil with higher sulfur content." (Fn. omitted.) Respondents argued, and the trial court found, that the EIR's discussion of the types of crude that the Refinery currently processes, as compared to the types of crude the Refinery would be able to process after the Project was implemented, was so "unclear and inconsistent" that the EIR failed to provide an "accurate, stable, and finite project description."
Crude is described in the EIR as "the basic feedstock for the Refinery." It is a composite of oils that vary in weight and levels of contaminants. Refining crude involves, among other things, separating out the differing weighted oils and using hydrogen to remove contaminants such as sulfur. The heaviness of the crude (i.e., its specific gravity) is related to the abundance of the larger,
As the EIR explains, the Refinery does not and cannot process "heavy" crude (meaning crude with an API gravity of 18 or below) because it lacks an essential piece of equipment, a coker. There is no indication that Chevron has any plans to acquire a coker, which would allow the Refinery to process heavy crude. Instead, the Refinery is configured to process light-to-intermediate crude, and the EIR maintains "[i]t is reasonably foreseeable that" after the Project "Chevron would run a crude slate similar to that which is currently processed at the Refinery—but in a mixture that has higher sulfur levels."
Throughout the environmental review process, respondents and others expressed concern that Chevron was obscuring the fact that the changes in Refinery equipment proposed by the Project, while not allowing the processing of heavy crude, would nevertheless significantly increase Chevron's ability to process lower quality, heavier crude as compared with the crude the Refinery currently processes. They maintained that heavier, lower-quality crude requires more intensive processing and is inherently more polluting, creating serious public health risks, including increased releases of selenium, mercury, sulfur flare gas, greenhouse gases, particulate matter, and the greater likelihood of upsets, which lead to emergencies and flaring.
For example, the City's mayor, Gayle McLaughlin, submitted a letter dated July 9, 2007, indicating her concern that the community would be adversely impacted if heavier crude were processed at the Refinery. She indicated that the "surrounding community to the [R]efinery already suffers from high rates of asthma and other respiratory diseases, as well as cancer." She wrote, "Higher refining temperatures and a heavier crude slate will most definitely lead to poorer air quality and a greater risk of accidents that regularly impact our neighborhoods that are already overly and unjustly burdened with pollutants and risk."
The final EIR dismisses these comments based on its conclusion that "a change to a substantially heavier crude slate ... would not be a reasonably foreseeable consequence of the Proposed Project because the Proposed Project would not alter the Refinery's current design for processing intermediate and light crudes." Thus, while the EIR discloses that the Project will result in an increase in the sulfur content of the crude processed at the
Initially, we note that the parties vehemently disagree as to what standard of review is applicable to respondents' claims, an important prologue issue to our analysis. Chevron characterizes respondents' claims as challenging the evidence supporting the EIR's determination that the Project would not result in the Refinery's equipment being physically altered to allow the processing of heavier crude. Chevron argues that "[t]his is a quintessential factual dispute governed by the substantial evidence test." Respondents, on the other hand, argue that when "a final EIR does not adequately apprise all interested parties of the true scope of the project," the agency has failed to proceed in a manner required by law, and the final EIR is inadequate as a matter of law.
Our Supreme Court has counseled that "[i]n evaluating an EIR for CEQA compliance, . . . a reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts." (Vineyard Area Citizens, supra, 40 Cal.4th at p. 435.) The dispute on this issue centers on the question of whether pertinent information was omitted from the EIR.
On appeal, "the existence of substantial evidence supporting the agency's ultimate decision on a disputed issue is not relevant when one is assessing a violation of the information disclosure provisions of CEQA." (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1392 [133 Cal.Rptr.2d 718] (Irritated Residents).) "If a final environmental impact report (EIR) does not `adequately apprise all interested parties of the true
Thus, we conclude that the claimed deficiencies in the EIR compel de novo review. (Vineyard Area Citizens, supra, 40 Cal.4th at p. 427.) As we explain, under this standard of review, we agree with the trial court that the EIR is inadequate as a matter of law because it does not adequately address the issue of whether the Project includes any equipment changes that would facilitate the future processing of heavier crudes at the Refinery. The EIR states in conclusory terms that the proposed Project will not result in an increased capacity to process lower quality, heavier crude, and that Chevron seeks only the ability to refine crude with higher sulfur content. However, that statement is not adequately supported by facts and analysis contained in the EIR. Moreover, there was conflicting information developed during the EIR process that casts serious doubt on these assertions.
Significantly, the EIR itself contains conflicting statements about the objectives of the Project. On one hand, the EIR states "[t]he Proposed Project does not include any process and equipment changes that would facilitate the processing of heavier crudes at the Chevron Richmond Refinery." On the other hand, the EIR explains that "[r]efiners have had to adapt to a crude oil supply that is increasingly heavier and more-sour (higher sulfur content)." (Italics added.) "The supply of crude oil to California refineries has changed substantially during the last 10 years, with light to intermediate crudes becoming less available. ... It is within the context of these changes in crude oil supply that the Renewal Project is proposed." (Italics added.) Consequently, the EIR claims that the Project is designed to allow more flexibility in refining future crude supplies that the EIR describes as "increasingly heavier," but on the other hand, denies that the Project will enable the Refinery to process heavier crude.
Furthermore, the Project that Chevron described in a filing with the United States Securities and Exchange Commission (SEC), which was made under oath, differs considerably from the EIR's project description. Chevron's SEC form 10-K for the fiscal year ending December 31, 2007, identifies the central purpose of the Project as enabling the processing of heavier (lower specific gravity) crude. Chevron's 10-K filing included the following statement about
Moreover, in response to the EIR's assurance that the Project would not facilitate the processing of a heavier crude mix at the Refinery, it was repeatedly suggested that the Project's conditional use permit contain a provision ensuring that the Refinery would not switch to a heavier crude slate: the so-called "crude cap." California's Attorney General was one of the most vocal advocates of imposing such a conditional use requirement. In correspondence to the City, the Attorney General noted that "[i]f this Project enables Chevron to use a different, dirtier crude mix with greater polluting potential, this fact is not disclosed" and the EIR "is legally deficient under CEQA on this issue." In order to correct this potential "deficiency," the Attorney General proposed "imposing a limitation on the conditional use permit precluding Chevron from altering its crude slate mix other than the 3% sulfur increase which has already been disclosed and analyzed" in the EIR.
This "crude cap" proposal was met with Chevron's heated opposition, and was never implemented. When asked at a public hearing why Chevron would object to placing controls on processing a heavier crude slate if "you can't do it anyway," a Chevron official made a revealing statement: "[I]t's an extremely fluid and complex process for identifying and selecting crudes to process at a given refinery, and depending on the operating scenario, the product demand, what's available, ... there is [sic] any number of combinations of crude oil that can come into the refinery. And the concern is that this selection of crude oil would be so far constrained that we would not be able to take full advantage of the process capability of the refinery." (Italics added.) Clearly, a legitimate interpretation of this answer was that Chevron sought to preserve its operational flexibility to process a heavier range of crude than was currently being processed.
Far from being an informative document, the EIR's conclusions call for blind faith in vague subjective characterizations. (See Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1371 [111 Cal.Rptr.2d 598] (Berkeley Jets) ["[t]he conclusory and evasive nature of the response to comments is pervasive, with the EIR failing to support its many conclusory statements by scientific or objective data"]; San Joaquin Raptor, supra, 149 Cal.App.4th at p. 659 ["decision makers and general public should not be forced to ... ferret out the fundamental baseline assumptions that are being used for purposes of the environmental analysis"].) The problem with this type of analysis, as recognized by the trial court, is that it does not provide any objective quantification of the "continuing mix that [the] Refinery was `designed to process.'" Nor does it explain "whether the mix the [R]efinery is `designed' to process is heavier than [the] mix [the] Refinery is currently processing." As the trial court pointed out, unless the data as to crude slate currently processed at the Refinery (the environmental baseline) is divulged, the EIR's conclusion that the future crude slate would be "similar to that which is currently processed" is meaningless.
As an example of what should have been done before the EIR became final, we note that after the final EIR was issued, three experts rendered their opinions on the pivotal question of whether or not the Project would result in changes in the refining process that would enable Chevron to process heavier crude oil. In some respects, this expert input answered many of the site-specific questions left unaddressed and unanswered by the EIR. (See Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1030 [68 Cal.Rptr.2d 367] [criticizing agency's postponement of analysis of air quality impacts of specific plan when "authors of the EIR had sufficiently reliable data to permit preparation of a meaningful and accurate report on its impact."]; see also City of Santee v. County of San Diego (1989)
For example, on March 20, 2008, when the final EIR was before the Planning Commission for approval, respondent Communities for a Better Environment submitted the opinion of their senior scientist, Gregory Karras. Karras concluded that "[t]he [final EIR] omits current process data and wrongly concludes that the Project will not significantly increase Refinery capacity for low quality feedstock." (Fn. omitted.) Since it is generally acknowledged that the weight of the crude oil that can be refined is dictated by the specifications of the Refinery's equipment, Karras explained, in copious detail, his theory of how the increased process flow through the solvent deasphalter (SDA) would enable the Refinery to process lower quality, heavier crude.
On March 19, 2008, California's Attorney General submitted the report of another refinery expert, Geoffrey E. Dolbear, Ph.D. Dr. Dolbear is described as a physical chemist with more than 40 years of industrial experience developing improved refining processes. He indicated that "Chevron's statements that it `will continue to run the same crude oil types as processed currently' is incomplete at best, and misleading at worst." He agreed with Karras that "[t]he increased SDA capacity will allow Chevron to process increased levels of heavier crudes, and, if it does so, the [R]efinery will likely increase its emissions of pollutants." His report concludes with the admonition, "it is not possible to tell for certain what Chevron will do with the proposed increased capacity for the SDA, but undoubtedly Chevron will have the ability to process more heavy crude oil unless restrictions or permit conditions are imposed."
On March 20, 2008, the Planning Commission held a public hearing to decide whether to certify the EIR and approve the Project. After hearing five hours of public testimony, the hearing was continued to determine whether a
As part of this post-EIR effort, in late March 2008, the City retained a private consultant concerning these issues, Dr. Ranajit Sahu. Dr. Sahu is described as having over 17 years of experience in the fields of environmental, mechanical, and chemical engineering. In his written report dated July 8, 2008, shortly before the Project received final approval from the City Council, Dr. Sahu tacitly gave credence to the expert analysis already received. He admitted "[s]ince the Renewal Project involves changes in the crude slate (i.e., to more sour or higher sulfur crudes, some of which may be `heavier'), the throughput in the SDA is pertinent to the project. Increasing the SDA throughput would allow more residuum to be processed, which in turn means that heavier crude oils could be processed." (Italics added.) However, Dr. Sahu ultimately agreed with the EIR's conclusion that, after the Project, the Refinery would not have greater capacity to process a crude slate different from that which is currently being processed. For purposes of this conclusion, Dr. Sahu indicated that "[d]uring the last decade or so, Chevron has processed blended crude oils with monthly-average API gravity in the 29.7-34.4 degree range," and he considered "heavier" crude to mean crude oils "outside the range the Refinery has processed in the last decade ...."
However, Dr. Sahu's calculations and analysis were based, in part, on confidential data supplied by Chevron that was not made available to anyone else. Dr. Sahu described the confidential information that he reviewed as follows: "One document showed the Refinery's SDA throughput level for the past 10 years. The other document was a spreadsheet containing data on the composition of crude oils used at the Refinery."
Based on this confidential data, Dr. Sahu proposed a permit condition, condition C12, which would limit the SDA throughput to an average of approximately 48,700 barrels a day on an annual 12-month rolling average, which Dr. Sahu claimed would "ensure that all future crude slates, including higher sulfur slates[,] will be consistent with the Renewal Project EIR project description." He believed that condition C12, in combination with other proposed conditions, made a "comprehensive crude cap" unnecessary. Condition C12, as proposed by Dr. Sahu, was adopted by the Planning Commission as part of its approval of the Project. However, when the Project was ultimately approved by the City Council, that body acquiesced to demands made by Chevron that the SDA throughput level should be changed to the maximum throughput level of the SDA—56,000 barrels per day—without any analysis by Dr. Sahu, or any expert, on the question of whether the SDA's full production level, as authorized by this condition, materially altered, or at least was inconsistent with the then extant Project description.
Even if this post-EIR information could somehow be used to cure the EIR's shortcomings, Dr. Sahu's reliance on undisclosed data from Chevron does not meet the "informational" goals of CEQA. CEQA requires full environmental disclosure, but Chevron apparently decided that the public and the decision makers did not need to see proprietary data given only to Dr. Sahu and relied on by this expert. On appeal, Chevron provides no explanation why this information was restricted to Dr. Sahu's eyes only. An expert's opinion "concerning matters within [his or her] expertise is of obvious value, but the public and decision-makers, for whom the EIR is prepared, should also have before them the basis for that opinion so as to enable them to make an independent, reasoned judgment." (Santiago, supra, 118 Cal.App.3d at p. 831.) If Chevron's position becomes the rule—that a project proponent can pick and choose who sees pertinent data—then a stake is driven into the "heart of CEQA" by preventing the information necessary for an informed decision from reaching the decision makers and the public. (See Laurel Heights Improvement Assn. v. Regents of the University of California (1993) 6 Cal.4th 1112, 1123 [26 Cal.Rptr.2d 231, 864 P.2d 502] (Laurel Heights II).)
C. Improper Deferral of Greenhouse Gas Mitigation Measures
In seeking writ relief, respondents complained that the final EIR provided only a perfunctory list of possible measures to mitigate the Project's significant contribution to greenhouse gas emissions and improperly deferred identification of these measures until after the CEQA process. The trial court agreed, finding that the EIR had improperly deferred an analysis of mitigation
It should first be pointed out that the formulation of greenhouse gas mitigation measures was delayed due to the City's reluctance to make a finding early in the EIR process that the greenhouse gas emissions generated by the Project would create a significant effect on the environment. The draft EIR concluded that "[w]hen considering the maximum potential emissions" created by the Project, it could result in "a net increase in CO emissions of approximately 898,000 metric tons" per year.
After numerous objections to the City's treatment of the greenhouse gas issue, the final EIR acknowledged the environmental significance of greenhouse gas emissions and the effect of those emissions on global warming, but still avoided labeling the Project's contribution to climate change as a significant effect on the environment. Instead, the Final EIR stated that making a significance determination for greenhouse gas impacts of the Project would be too "speculative."
After issuance of the final EIR in January 2008, there was an outpouring of public comment arguing that the EIR had failed to provide a convincing and complete explanation as to why the increase of greenhouse gas emissions caused by the Project would not have a significant impact on the environment. Those commenting, including California's Attorney General, submitted numerous scientific reports and studies regarding the relationship between climate change and greenhouse gas emissions and the expected impacts on the environment.
The proposition that climate-change impacts are significant environmental impacts requiring analysis under CEQA was bolstered by several ongoing
Based on the foregoing, the City belatedly issued a finding in a newly published volume of the EIR issued in May 2008, that it "now believes that the Proposed Project's estimated new emissions of 898,000 metric tons per year of GHGs [(greenhouse gases)] prior to mitigation would most likely be a significant effect on the environment." Having recognized and acknowledged that incremental increases in greenhouses gases would result in significant adverse impacts to global warming, the EIR was now legally required to describe, evaluate and ultimately adopt feasible mitigation measures which would "mitigate or avoid" those impacts. (§ 21002.1, subd. (b); see also Guidelines, §§ 15126.4, subd. (a)(1), 15091.) As amici curiae point out, "[t]he quantity of emissions the EIR aims to mitigate is far from trivial. Mitigating the 898,000 tons of greenhouse gas emissions the [P]roject would generate is equivalent to taking 160,000 cars off the road."
In response to this significance finding, the EIR puts forth some proposed mitigation measures to ensure that the Project's operation "shall result in no net increase in GHG emissions over the Proposed Project baseline." The centerpiece of the mitigation plan is "Mitigation Measure 4.3-5e," which was ultimately adopted by the City Council in approving the Project. Mitigation Measure 4.3-5e states: "No later than one (1) year after approval of this Conditional Use Permit, Chevron shall submit to the City, for approval by the City Council, a plan for achieving complete reduction of GHG emissions up to the maximum estimated Renewal Project GHG emissions increase over the baseline (898,000 metric tons per year ...)."
In the writ proceeding below, respondents argued that the City failed in not submitting a plan to mitigate greenhouse gas emissions during the environmental review process, but instead proceeding by preparing a menu of potential mitigation measures, with the specific measures to be selected by Chevron and approved by the City Council a year after Project approval. The superior court agreed with petitioners that the "City has improperly deferred formulation of greenhouse gas mitigation measures, by simply requiring Chevron to prepare a mitigation plan and submit it to City staff up to a year later after approval of conditional use permit."
Numerous cases illustrate that reliance on tentative plans for future mitigation after completion of the CEQA process significantly undermines CEQA's goals of full disclosure and informed decisionmaking; and consequently, these mitigation plans have been overturned on judicial review as constituting improper deferral of environmental assessment. (See, e.g., Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1396 [43 Cal.Rptr.2d 170] [conditioning a permit on "recommendations of a report that had yet to be performed"
This mitigation plan for greenhouse gases is similarly deficient. Here, the final EIR merely proposes a generalized goal of no net increase in greenhouse gas emissions and then sets out a handful of cursorily described mitigation measures for future consideration that might serve to mitigate the 898,000 metric tons of emissions resulting from the Project. No effort is made to calculate what, if any, reductions in the Project's anticipated greenhouse gas emissions would result from each of these vaguely described future mitigation measures. Indeed, the perfunctory listing of possible mitigation measures set out in Mitigation Measure 4.3-5e are nonexclusive, undefined, untested and of unknown efficacy. The only criteria for "success" of the ultimate mitigation plan adopted is the subjective judgment of the City Council, which presumably will make its decision outside of any public process a year after the Project has been approved. Fundamentally, the development of mitigation measures, as envisioned by CEQA, is not meant to be a bilateral negotiation between a project proponent and the lead agency after project approval, but rather, an open process that also involves other interested agencies and the public.
We find this proposal is no different than the deferred mitigation rejected by the appellate court in San Joaquin Raptor, supra, 149 Cal.App.4th 645. There, the EIR required "a management plan" to be prepared "by a qualified biologist to `maintain the integrity and mosaic of the vernal pool habitat.'" (Id. at p. 669.) The court held that this measure was deficient because it merely included a "generalized goal of maintaining the integrity of the vernal pool habitats," placing the onus of mitigation on the future plan and leaving the public "in the dark about what land management steps will be taken, or what specific criteria or performance standard will be met ...." (Id. at p. 670.)
Chevron argues that this is a case in which CEQA allows the EIR to specify "performance standards" rather than choose the specific mitigation methods in advance. Chevron states that "the EIR concludes the Project's GHG emissions will have a potentially significant environmental effect on climate change. The EIR adopts a strict numeric performance standard (`net-zero,' which is a 100% reduction) .... To enforce this performance standard, the EIR provides a list of potential mitigation strategies ...." Chevron contends that the mitigation strategy employed in this case is similar to the mitigation plans upheld in California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603 [91 Cal.Rptr.3d 571] (CNPS) and in SOCA, supra, 229 Cal.App.3d 1011.
In CNPS, supra, 172 Cal.App.4th 603, during the environmental review process it was determined that the proposed project would significantly impact vernal pools, wetlands, and associated animal species. The lead agency in CNPS then identified and formulated a specific measure to mitigate these impacts—"preservation or creation of replacement habitat offsite in a specific ratio to the habitat lost as a result of the [p]roject." (Id. at p. 622.) The court concluded that "the [c]ity here did not have to identify exactly where ... any offsite mitigation site would be located." (Ibid.) The court stated that it was appropriate to defer such analysis where there was nothing in the record that suggested "the offsite mitigation measures the [c]ity proposed were not feasible or that the [c]ity had not fully committed to implementing those measures." (Id. at pp. 622-623.)
In SOCA, supra, 229 Cal.App.3d 1011, the city prepared an EIR which identified potentially significant traffic and parking impacts resulting from the
For the foregoing reasons, we agree with the trial court that the City's decision to approve the Project, after giving the City Council final approval over a mitigation plan that Chevron formulated a year later outside the EIR process, does not satisfy CEQA's requirements. We emphasize once again that the time to analyze the impacts of the Project and to formulate mitigation measures to minimize or avoid those impacts was during the EIR process, before the Project was brought to the Planning Commission and City Council for final approval. Because the City belatedly acknowledged at the very end of the EIR process that the Project's greenhouse gas emissions would constitute a significant impact on the environment, the City was obviously unable to gather sufficient information during the EIR process itself to develop specific mitigation measures. The solution was not to defer the specification and adoption of mitigation measures until a year after Project approval, but, rather, to defer approval of the Project until proposed mitigation measures were fully developed, clearly defined, and made available to the public and interested agencies for review and comment.
In our opinion, the novelty of greenhouse gas mitigation measures is one of the most important reasons "that mitigation measures timely be set forth, that environmental information be complete and relevant, and that environmental decisions be made in an accountable arena. [Citation.]" (Oro Fino Gold Mining Corp v. County of El Dorado (1990) 225 Cal.App.3d 872, 885 [274 Cal.Rptr. 720].) To that end, "[w]hile foreseeing the unforeseeable is not possible, an agency must use its best efforts to find out and disclose all that it reasonably can." (Guidelines, § 15144; see also Vineyard Area Citizens, supra, 40 Cal.4th at p. 428.)
In light of our conclusion that the EIR is inadequate on another, even more fundamental ground, and must be revised, the revised EIR should take advantage of any pertinent new information in analyzing the Project's potential greenhouse gas emissions and their cumulative impact on climate change, as well as defining legally adequate mitigation measures to avoid those impacts. (See, e.g., newly enacted Guidelines, § 15064.4 [determining significance of project's greenhouse gas emissions]; § 15183.5 [tiering analysis].) Moreover, once mitigation measures are publicly reviewed and identified, nothing prevents the City from incorporating guidelines to continue utilizing new scientific information as it becomes available. (See, e.g., Napa Citizens for Honest Government v. Napa County Bd. of Supervisors (2001) 91 Cal.App.4th 342, 358 [110 Cal.Rptr.2d 579] [assuming a valid reason, nothing "establish[es] that a particular mitigation measure, once adopted, is a commitment that may never be modified or deleted"].)
D. Hydrogen Pipeline Project Is Not Part of the Proposed Project
Also at issue in this writ proceeding was respondents' allegation that the City unlawfully segmented its environmental review of the Project by failing
As noted, one of the four main components of the Project was replacing the existing hydrogen plant, which began operating in 1965, with a new hydrogen plant (the Hydrogen Plant Replacement). The Refinery uses substantial amounts of hydrogen for a variety of purposes, including the hydrotreating process (the use of heat, hydrogen, and catalyst to remove impurities such as sulfur) to produce the clean fuels that conform to California standards. The Hydrogen Plant Replacement is fully described and analyzed in the EIR.
While the new Hydrogen Plant Replacement will be located on the Refinery's property, it will be constructed, owned and operated by Praxair, a third party industrial gas company. Praxair has considerable experience in operating hydrogen plants—it has built 18 hydrogen plants throughout the world. The Hydrogen Plant Replacement's design will allow Praxair to produce additional hydrogen, if it chooses to do so, beyond that needed by Chevron at the Refinery. Any excess hydrogen generated must be exported, as the Refinery does not have the capability to store it.
In February 2007, Praxair filed an application with Contra Costa County for a conditional use permit for a proposed hydrogen pipeline to transport and sell any excess hydrogen to other hydrogen users in the Bay Area besides Chevron. The route of the approximately 21.5-mile proposed hydrogen pipeline would start at the new Hydrogen Plant Replacement at the Refinery and then span a number of jurisdictions, although it would be located entirely within Contra Costa County.
In the EIR prepared for the Project, the City set out the reason why the hydrogen pipeline project was treated as a separate, stand-alone project: "The Contra Costa Pipeline Project is not a crucial or functional element of the Chevron Renewal Project. The Chevron Renewal Project does not depend on the Contra Costa Pipeline Project in order to proceed, and would be implemented with or without a pipeline being constructed by Praxair. The scope of the remainder of the Chevron Renewal Project is not dependent upon, and would not change if the pipeline is, or is not, constructed. Rather, the Contra Costa Pipeline Project's purpose would be to serve Bay Area hydrogen consumers and producers in addition to Chevron."
Since the planned expansion was a key component of the project reviewed in Laurel Heights I, and the successive phases were really part and parcel of the same project, it is easy to see how the court found that the planned expansion was a reasonably foreseeable consequence of the initial project. By contrast, the projects at issue here, the hydrogen pipeline and the Refinery upgrade, are independently justified, separate projects with different project proponents—not piecemealed components of the same project. At the same time, the City saw that the hydrogen pipeline project was related to the Refinery upgrade, so the pipeline's cumulative contribution to the Project's environmental impacts was included in the EIR.
More recently, in Tuolumne County, supra, 155 Cal.App.4th 1214, the court held that a proposed Lowe's home improvement center and a planned realignment of the adjacent Old Wards Ferry Road were improperly segmented as two separate projects in light of the dispositive fact that the road realignment was included by the City of Sonora as a condition of approval for the Lowe's project. (Id. at p. 1220.) The court held that this was really one project, not two, because "[t]heir independence was brought to an end when the road realignment was added as a condition to the approval of the home improvement center project. [Citation.]" (Id. at p. 1231.)
In Christward Ministry v. County of San Diego (1993) 13 Cal.App.4th 31 [16 Cal.Rptr.2d 435], the court considered an expansion proposal for a landfill site. The petitioners contended that other waste management projects in the area should have been included in the project description and evaluated in the EIR as part of the project. The court disagreed, finding that even though there were a number of separate waste management projects occurring at the same time, there was "no record reflecting a contemplated larger project ...." (Id. at p. 46.) Consequently, treating the landfill project as an independent project in the EIR could not be equated to the "`chopping up'" of a larger project into smaller parts to evade environmental review. (Ibid.) Furthermore, the court noted the other projects were addressed in the cumulative impacts analysis of the EIR in accordance with CEQA requirements. (13 Cal.App.4th at p. 47.)
Similarly, in Berkeley Jets, the court rejected an argument that the project description in an EIR for an airport development plan (ADP) should have included long-range plans for potential runway expansions. (Berkeley Jets, supra, 91 Cal.App.4th at pp. 1361-1362.) The runway expansion projects were not functionally linked to the ADP; and because the airport's existing runways were expected to continue operating below capacity for several years, the runway projects were unnecessary for completion of the ADP. The court noted, "the ADP does not depend on a new runway and would be built whether or not runway capacity is ever expanded." (Id. at p. 1362.) Because runway expansion was not a crucial element of the ADP or a reasonably
This case presents a similar scenario to that considered in National Parks, Christward Ministry, and Berkeley Jets. The Project at issue here and the hydrogen pipeline project, are not interdependent. In fact, they perform entirely different, unrelated functions. The principal purpose for the Project is to allow Chevron to modify and/or replace existing Refinery equipment in order to "improve the Refinery's ability to process crude oil and other feed stocks from around the world and to direct more of current gasoline production capacity to the California market." The principal purpose of the hydrogen pipeline project is to provide a way for Praxair to transport excess hydrogen that is not required for Chevron's operations to other hydrogen consumers in the Bay Area. Because Chevron's efforts to process a larger percentage of California fuel at the Refinery does not "depend on" construction of the hydrogen pipeline, the City's treatment of the hydrogen pipeline as a separate project does not constitute illegal piecemealing. (See Berkeley Jets, supra, 91 Cal.App.4th at p. 1362.) Accordingly, the trial court should have rejected respondents' piecemealing contention.
E. Unaddressed Issues
As noted, the City has also filed an appeal requesting only that this court "finally decide the outstanding issues in this case" that were left unaddressed by the trial court. Because we have concluded that the EIR must be revised to provide critical information about the crude slate processed at the Refinery and greenhouse gas emissions, respondents' claim that the City, before approving the Project, was required to revise and recirculate the EIR in light of "significant new information" is undeniably moot. (See § 21092.1; see also Guidelines, § 15088.5, subd. (a)(1).)
We also follow the trial court's approach and decline to address respondents' contention that the "EIR provides only a superficial treatment of the cumulative impacts of the Project ...." It is entirely foreseeable that the information developed on these important topics in the revised EIR will result in new or increased impacts being identified, which would require that the cumulative impacts analysis also be revised. Therefore, like the trial court, we are reluctant to address claims about the current EIR's cumulative impact analysis that may be rendered moot by any subsequent CEQA review. (See Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 920 [100 Cal.Rptr.2d 173] [§ 21005, subd. (c) does not require appellate court to address additional alleged deficiencies that may be addressed in a "completely different and more comprehensive manner" upon
The judgment is reversed. The trial court is instructed to enter, consistent with this opinion, a new and different judgment granting in part and denying in part the petition for writ of mandate. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a).)
Reardon, J., and Sepulveda, J., concurred.
- No Cases Found