California's Supreme Court About to Consider One Strand of the Newhall Ranch Tangle

The Newhall Ranch environmental review litigation, itself a mighty matter of land use legend, has an important strand of its multiply braided conflicts awaiting an oral argument date before the state Supreme Court. 

The parties' briefing is complete. The court has accepted a deep layer of amicus briefs from state-level land use players. And with the confirmation of Justice Leondra Kruger, the court has finally returned to full membership. So the court has little reason to delay setting an argument date.

Disputes over the proposed Newhall Ranch planned development have been a mainstay topic in Southern California land use politics for two decades. If completed as envisioned, the project would create a city of nearly 60,000 people in northwestern Los Angeles County. The site is at the edge of Los Angeles' current urban footprint, along the Santa Clara River north of the Six Flags amusement park, southwest of the junction between Interstate 5 and Highway 126. Debates about the Newhall Ranch site affect the Santa Clara River system, described by its advocates as "one of the last free flowing natural riparian systems left in southern California." They also provide occasions for public conversation in Los Angeles about the limits of suburban expansion. 

The case before the state Supreme Court, Center for Biological Diversity v. California Department of Fish and Game, No. S217763, is one of the four currently litigated Newhall Ranch cases. In accepting the case, the high court granted review only on three questions out of a larger dispute.

The first question asks if environmental mitigations that involve catching and moving fish are acceptable for one of California's very few "fully protected" species, the Unarmored Threespine Stickleback. 

The second asks if it was proper for a state-level lead agency to treat public comments as late because they came in after the draft environmental review (DEIR) stage -- where the only subsequent comment period was offered by a federal agency, in the concurrent process for its related final environmental impact statement (EIS). 

The third question asks whether the California Department of Fish and Wildlife (CDFW, formerly the Department of Fish and Game) properly accepted Newhall's choice of a baseline to measure its promised greenhouse gas (GHG) emissions reductions under AB 32. In an approach derived from existing Air Resources Board practices, Newhall set as its baseline an unbuilt "business as usual" version of the project, and measured GHG "reductions" by comparing that to the actual plan. Environmental advocates argue this was unfairly manipulating expectations by setting the opening bar too high. 

The Newhall Ranch project began its first review processes in 1994, starting environmental review in 1996. The county approved a programmatic EIR in 2003 for a specific plan covering the whole huge project of almost 12,000 acres. That version proposed up to 21,308 dwelling units to house up to 57,903 people in five "villages" with mixed-use development, business parks, designated parks and open space, several schools and a golf course. More recent designs call for 19,812 residential units on a developed area of 2,587 acres of which 2,221 would be residential. 

The 2003 specific plan's programmatic EIR was long ago settled as approved, but it looked toward future state and federal environmental reviews and to project EIRs for individual phases of the big plan. Those have provided grist for dispute ever since.

The Newhall Ranch issues now before the State Supreme Court concern state-level permits and environmental planning approvals issued in a joint state-federal review process. The state's lead agency was CDFW, working under the California Environmental Quality Act (CEQA). The lead federal agency was the U.S. Army Corps of Engineers, working under the National Environmental Protection Act (NEPA) to prepare an EIS and issue federal permits and approvals.

CDFW in 2010 approved an EIR and EIS, a project-wide resource management plan, a large-scale conservation plan for preserving the endangered San Fernando Valley Spineflower, a plan to mitigate the intended alteration of streambeds, and two incidental take permits for damage to endangered species that the approved actions might cause. Environmental and community groups, including advocates for Native American cultural sites, challenged the approvals.

The Santa Clara River, home to the unarmored three-spined stickleback, not far upstream from the Newhall Ranch site, during the recent drought. The river's water level and surrounding vegetation vary dramatically with rainfall conditions.

The initial Superior Court opinion on the matter, by Superior Court Judge Ann I. Jones, underlies the current California Supreme Court appeal. Her unhurried 38-page opinion discussed the environmental value and political/procedural history of the Newhall Ranch, arriving at a ruling in petitioners' favor. Jones' impartiality was later questioned by the Newhall Ranch in a formal challenge in late 2012, in part because of her participation in a land-use dispute in her own neighborhood. The motion to disqualify Judge Jones was rejected in a January 2013 ruling by Judge Glenda Sanders of Orange County, but Jones remains assigned to other matters, making it unlikely she will hear more Newhall Ranch cases.

The appellate decision, which sided with Newhall Ranch, was by Justice Paul Turner with concurrence by Justices Richard Mosk and Sandy Kriegler, all of the Second District's Fifth Division. Turner's 113-page opinion included an extended, highly technical discussion of appropriate GHG reductions under AB 32. That analysis, Section IV.G., was much discussed on environmental law firms' blogs, including Stoel Rives', but the appellate court insisted on excluding it from publication. It is not before the California Supreme Court.

Instead, the high court granted review on three relatively narrow issues:

First, the court will consider whether "take" of unarmored threespine stickleback is acceptable as part of a mitigation program to protect the endangered fish by moving them from one part of the river to another. Plaintiffs, represented by senior attorneys with the Center for Biological Diversity, a UCLA law school clinic and others, contend that stickleback may not be caught even for mitigation purposes because they belong to one of a few highly fragile populations covered by the Fully Protected Species Laws, Cal. Fish & Game Code Sec. 5515. They argue that catching stickleback is in itself an impermissible "take", and note that in practice some would die in being caught. To plaintiffs, Sec. 5515 supplements the California Endangered Species Act (CESA) by adding additional protections for "fully protected" species. 

But CDFW contends that it properly chose to allow "incidental take" permits under CESA in connection with relocating stickleback, in an exercise of both administrative discretion and "common sense" for which it claims judicial deference. Newhall Ranch, whose attorneys include Mark Dillon of Gatzke Dillon & Ballance LLP and Miriam Vogel of Morrison & Foerster, argues that the U.S. Fish and Wildlife Service, which would perform the relocation work, has independent federal authority to do so.

In one of the many filed amicus briefs, attorneys with Cox, Castle & Nicholson including Michael Zischke, writing for building industry and real estate groups, argued that CDFW and the appellate court followed the settled interpretation of "take", whereas adopting Petitioners' approach would "paralyze" CDFW and stop all development on land harboring any of the 37 "fully protected species."

Second, the court will consider whether comments responding to the final EIR were raised soon enough to meet CEQA's exhaustion of remedies standard. The comments concerned Chumash and Tataviam Native American cultural resources on the project site and expected runoff impacts on California Steelhead. Plaintiffs contend they raised these objections timely on the final EIR/EIS if not during the Draft EIR comment period. (A November 25 reply brief also contends the steelhead comments were raised sufficiently during the draft EIR period.)

Defendants contend that, although plaintiffs did comment on those issues, and received responses to their comments from Newhall Ranch, that happened in a comment process that was required and provided only under NEPA, for the final EIS, and not under CEQA for the final EIR. Defendants argue in the alternative that the appellate court rejected the cultural resource and steelhead claims on the merits, and that the state supreme court should do the same.

In an amicus brief, several California tribes argued against an over-strict reading of timeliness provisions. In addition to more technical arguments, the brief argued that if early comment cutoffs became widespread, that could worsen tribes' reluctance to participate in state rather than federal environmental processes.

An amicus brief by Susan Brandt-Hawley for the Planning and Conservation League argued in part that an agency's decision not to offer a comment period or hearing on a final EIR "cannot preclude meaningful public participation" nor justify excluding evidence offered before EIR/EIS certification.

The Zischke brief included an argument that "CEQA does not direct agencies when they must hold hearings, and in fact CEQA does not require hearings at all."

Third, the court will consider if CDFW properly allowed Newhall Ranch to calculate its planned GHG reductions based on differences between the actual plan and a projected "business as usual" version of the project design. Plaintiffs argue that CDFW improperly allowed Newhall Ranch to game the GHG reduction requirements under AB 32, as implemented by CEQA Guidelines Sec. 15064.4, by projecting the emissions from a hypothetical exaggerated, legally impermissible version of the project, treating that as its baseline, and counting as a GHG "reduction" the 31% difference between that and the actual plan's projected emissions. (The projected reduced emission would still be 269,000 metric tons of GHGs per year.)

CDFW made a compact argument that it acted within its discretion to select methodologies but mainly stepped back and let Newhall Ranch argue the GHG issue under a "division of labor". In addition to the discretion argument, Newhall argued that its analysis complied with Sec. 15064.4, and that, while disclosing current existing conditions on the site -- now largely farmland -- it acted on the realistic assumption that populations grow. 

Newhall Ranch argued that the "business-as-usual" baseline followed the Air Resources Board's approach to the AB 32 requirement of per capita GHG reductions from 1990 levels to 2020 levels. It said the ARB had set the example of "assuming emissions controls remain static between 1990 and 2020" as "an analytical construct."

The developer argued the project should get credit for its environmentally conscious features, including more than 10,000 acres of open space, plans to protect drainages and wetlands, energy efficiency, rooftop solar, provisions for public transit, walking and biking trails, and "close proximity of homes to jobs and services". 

A Sierra Club amicus brief focused on the GHG issue, arguing that the "business as usual" baseline was "predicated on an alternate reality" in which GHG emissions had not been further regulated since 2005. The Sierra Club amicus presumed that Executive Order S-3-05 created a substantive emissions reduction target -- a position placed in doubt by the ruling in Cleveland National Forest Foundation v. San Diego Association of Governments, discussed at http://www.cp-dr.com/articles/node-3632.

An amicus brief by attorneys with the Nossaman and Best, Best & Krieger firms, among others, amplified several CDFW and Newhall arguments on the GHG review baseline, then closed by arguing that a ruling for plaintiffs would be disruptive. It sided with Justice Patricia Benke's dissent in the San Diego matter, arguing as Benke had that too much executive power should not interfere with agency discretion.