Introduction
California Endangered Species Act
Greenhouse gas emissions
What next?


Introduction

On March 20 2014 California's Second District Court of Appeal, Division Five, issued a decision in Centre for Biological Diversity v Department of Fish & Wildlife,(1) overturning the trial court's decision setting aside the 5,828-page environmental impact report and related approvals for the Newhall Ranch project – a large-scale residential project that has been in the planning process for 20 years. The court of appeal concluded that the environmental impact report adequately analysed the project's potential impact on fish, wildlife and plants, and that the related approvals were lawful. This decision clears a major hurdle for the project.

California Endangered Species Act

The primary issue on appeal was whether the environmental impact report had adequately analysed the impact of the Department of Fish and Wildlife's (DFW) approval of a resource management plan, conservation plan, master streambed alteration agreement and two incidental take permits issued under the California Endangered Species Act.

The Centre for Biological Diversity and other petitioners (collectively 'the CBD') claimed that the project would result in, among other things, the unlawful 'take' of the unarmoured threespine stickleback – a state and federally protected fish species – and that the environmental impact report failed to analyse fully such impacts. The CBD also challenged issuance of the incidental take permits for the California Endangered Species Act-listed San Fernando Valley spineflower as:

  • not supported by substantial evidence in the record; and
  • an abuse of discretion under the incidental take permit issuance criteria of Section 2081 of the Fish and Game Code.

The trial court agreed and set aside certification of the environmental impact report and the related DFW approvals.

Reversing the trial court's judgment, the court of appeal engaged in a detailed analysis of the California Endangered Species Act. In doing so, the court explained that the definition of 'take' under state law (as used in the California Endangered Species Act and the Fish and Game Code provisions regarding "fully protected" species) – "hunt, pursue, catch, capture, or kill", or "attempt" to do any of those things – does not always entail mortality of the species. The CBD had challenged conservation measures that provided for the stickleback (if need be, for its own safety) to be trapped and transplanted to another stream reach as authorising a 'take'.

Although not novel, the court of appeal's discussion of 'take' provided useful clarification of the relationship of conservation measures to the state's fully protected species statutes in holding that the extraordinary precautionary measures specified for protection of the stickleback did not constitute an unlawful take or possession prescribed by the fully protected fish statute, Section 5515 of the Fish and Game Code. Noting the state's policy and the DFW's mission – to conserve protected species – the court explained that the California Endangered Species Act and the Fish and Game Code had to, and could, be read in harmony so that the specified protective measures would not be considered an unlawful take or possession. Specifically, the court looked to Section 2061 of the Fish and Game Code for the definition of 'conservation', which lists live trapping and transplantation as a conservation method to protect species. The court noted that this common-sense interpretation is also supported by the sequence in which the different statutory provisions were enacted, as well as their legislative histories.

With respect to the spineflower, the court found substantial evidence in the voluminous record to support the DFW's scientific strategies for protection and conservation, and mitigation findings for the incidental take permit. It also found – applying the traditional deferential abuse of discretion standard afforded to expert administrative agencies in such contexts – that the DFW's analysis and findings with respect to satisfaction of the incidental take permit issuance criteria under Section 2081 of the Fish and Game Code were lawful. Both holdings are firmly grounded in the sustained and comprehensive analysis conducted by the DFW for the spineflower.

Greenhouse gas emissions

Although not a published part of the opinion (meaning that it cannot be cited as precedent in future cases), the court's analysis of greenhouse gas emissions presented yet another judicial confirmation of a common approach for reviewing climate change impacts. Consistent with common practice throughout the state, the environmental impact report set a threshold of significance based on whether the project would impede the state's compliance with greenhouse gas emission reductions mandated by the Global Warming Solutions Act of 2006, commonly referred to as AB 32. The Air Resources Board has determined that meeting AB 32's mandates requires a 29% reduction in emissions when compared to the 'business as usual' scenario, meaning the scenario in which no further efforts to reduce emissions were made beyond what was required at the time of AB 32's enactment. The environmental impact report found the project's emissions to be 31% less than the 'business as usual' scenario, supporting a less than significant finding. Stressing the discretion that lead agencies have to make significance determinations, the court upheld the environmental impact report's framework and analysis as supported by substantial evidence. This holding is consistent with that of other courts of appeal that have considered the issue.(2) The court also rejected the CBD's claim that the environmental impact report's 'business as usual' analysis was illusory or hypothetical, pointing out that the environmental impact report analysed the project as if no action were taken to reduce further greenhouse gas emissions beyond what was required when AB 32 was enacted. As such, the project – as originally conceived and approved before AB 32 – "was not hypothetical".

What next?

The court provided guidance on actions to conserve fully protected species. Given the stringent conditions imposed by the DFW (and affirmed by the court) on the live trapping and transplantation of the fish species involved, the decision heralds anything but an 'open season' to relocate fully protected species from the path of development. Rather, the decision illustrates proper judicial scrutiny of the unique scientific expertise of the DFW in such circumstances. The court's California Environmental Quality Act discussion, as noted, also confirmed the approach taken in prior published appellate decisions on greenhouse gas analysis under the California Environmental Quality Act. The court's decision does not become final until April 19 2014, after which the CBD will have 10 days within which to seek review in the California Supreme Court.

For further information on this topic please contact Miriam A Vogel at Morrison & Foerster LLP's Los Angeles office by telephone (+1 213 892 5200), fax (+1 213 892 5454) or email (mvogel@mofo.com). Alternatively, contact Christopher Carr at Morrison & Foerster LLP's San Francisco office by telephone (+1 415 268 7000), fax (+1 415 268 7522) or email (ccarr@mofo.com). The Morrison & Foerster website can be accessed at www.mofo.com.

Endnotes

(1) Case BS131347.

(2) Friends of Oroville v City of Oroville (2013) 219 Cal App 4th 832, 841; Citizens for Responsible Equitable Environmental Development v City of Chula Vista (2011) 197 Cal App 4th 327, 336.