COMMUNITIES FOR A BETTER ENVIRONMENT v. CITY OF RICHMOND
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.
No. A125618.
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.
OPINIONRUVOLO, P. J.—
I.INTRODUCTIONOn 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
final environmental impact report (EIR) had been completed in compliance with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA).1 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.2 II.
1. All unspecified statutory references are to the Public Resources Code.
2. As might be expected, an environmental challenge to a project of this magnitude has created a voluminous record; numerous briefs raising complex, technical issues; and input from amici curiae. In order to organize this opinion in a comprehensive and logical manner, we will first present a general overview of the Project and CEQA's requirements, and then focus on alleged deficiencies in the EIR that are before us on appeal.
3. On the court's own motion, the entire six-volume EIR prepared for the Project was transmitted to this court on December 7, 2009. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
4. All future references to Guidelines are to the CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.) developed by the Governor's Office of Planning and Research and adopted by California's Natural Resources Agency. (§ 21083.) "[C]ourts should afford great weight to the Guidelines except when a provision is clearly unauthorized or erroneous under CEQA. [Citation.]" (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 391, fn. 2 [253 Cal.Rptr. 426, 764 P.2d 278] (Laurel Heights I).) 5. It is unnecessary to recount all the facts included in Karras's analysis. Briefly, the Project makes no changes to the SDA, and it is not mentioned in the EIR as being part of the Project. However, the Project does envision making changes that would expand the processing capacity of the Taylor Katalytic Cracker (TKC) from a current average of 42,700 barrels per day to a post-Project likely average of 80,000 barrels per day, "thus enabling the Refinery to import and process additional gas oils with higher sulfur content." Karras explained that by increasing the capacity of the TKC unit into which the SDA feeds, the Project will in fact "debottleneck" the SDA, by allowing increased flow through both units. He believed this increased flow would enable the Refinery to handle a wider range of crude slates—i.e., a heavier mix containing not only more sulfur, but also more heavy metals and other contaminants.
6. The Center for Biological Diversity, the Environmental Defense Center, and the Planning and Conservation League requested and were granted permission to file an amicus curiae brief in support of the trial court's ruling on this issue. (Cal. Rules of Court, rules 8.200(c)(1), 8.520(f)(1); order, Ruvolo, P. J. (Sept. 28, 2009).)
7. While the City obviously did the calculations necessary to determine how much extra carbon dioxide would be emitted as a result of the Project, the EIR completely fails to discuss in any detail how these calculations came about. As consulting engineer and refinery expert Dr. Phyllis Fox pointed out in her comment letter, the EIR's numerical estimates of greenhouse gas emissions does not "disclose any of the underlying calculations, e.g., unit throughputs and capacities, emission factors, fuels, and citations to source data. Thus, it is not possible to evaluate their accuracy."
8. Amici curiae substantiate this proposition by pointing out that the United States Environmental Protection Agency (EPA) estimates that a typical passenger car generates 5.48 metric tons of CO2e emission per year. (See Off. of Transportation and Air Quality, EPA, Emission Facts: Greenhouse Gas Emissions from a Typical Passenger Vehicle (Feb. 2005) p. 5 <http://www.epa.gov/otaq/climate/420f05004.htm> [as of Apr. 26, 2010].)
9. On August 31, 2009, this court took judicial notice, without a determination of relevance, of the draft EIR that was issued for the pipeline project.