The Inland Empire warehouse wars continue. In the latest skirmish, an appellate court – overturning a lower court ruling – has said that the City of Upland’s environmental analysis for a 200,000-square-foot warehouse near Cable Airport is sufficient. The dispute was over the significance threshold that should be used for greenhouse gas emissions – as well as the environmental baseline under the California Environmental Quality Act. The ruling is especially important because it was published, meaning it can be used as precedent in other cases.
The ruling comes even as Gov. Gavin Newsom considers whether to sign a bill regulating warehouses, which has the support of labor groups but not environmental justice groups. (Additional CP&DR coverage of the Inland Empire warehouse debate can be found here.)
Upland is farther west than most Inland Empire communities that host warehouses, but the area around Cable Airport, adjacent to historic Route 66, has a long history of industrial uses. The proposed warehouse, which would be built on the site of a rock-crushing operation, was strongly opposed by local residents when it was under consideration in 2019 and 2020. However, instead of preparing an environmental impact report as opponents wanted, the city approved a mitigated negative declaration after the developer, Bridge Development, agreed to include features that would reduce GHG emissions, such as solar panels and electric vehicle charging stations.
The case revolved primarily around the significance threshold for greenhouse gas emissions – the trigger for preparing an EIR. At first, the city used a threshold of 10,000 metric tons of carbon dioxide equivalent per year (MTCO2 e/yr), a threshold that the warehouse project easily cleared. However, during the review and comment period for the MND, comments from Brinda Sarathy – then a city resident, professor at Pitzer College, and director of the Robert Redford Conservancy for Southern California Sustainability at Pitzer – used evidence and deliberations from the South Coast Air Quality Management District to suggest that a threshold of 3,000 metric tons would be more appropriate. (The Redford Conservancy has been active in advocating for the regulation of warehouses in the Inland Empire; Sarathy has since moved on to the University of Washington, Bothell.)
The city then conducted a supplemental GHG analysis using the 3,000-metric-ton threshold and again found the warehouse cleared the threshold, this time by a small margin. As part of the supplemental analysis, Upland changed the underlying baseline from the rock-crushing operation from 899 metric tons to 2,437 metric tons – a change that helped the warehouse clear the hurdle – apparently by adding GHG emission from truck trips associated with the rock-crushing business.
A community group called Upland Community First then filed a CEQA lawsuit, claiming among other things that the revised baseline should not have been used. San Bernardino County Superior Court Judge David S. Cohn ruled that the record did not include sufficient evidence for using either the 3,000-metric-ton threshold or the 10,000-metric-ton threshold. Both Upland Community First and Bridge Development then appealed to the Fourth District Court of Appeal, which handles all appeals in the Inland Empire.
The appellate court overruled Judge Cohn, focusing primarily on the 3,000-metric-ton threshold. “Substantial evidence shows that the 3,000 threshold is an appropriate numerical threshold for measuring the significance of the project’s GHG emissions,” wrote Justice Richard T. Fields for a unanimous three-judge panel. “This evidence includes Dr. Sarathy’s comments and letter to the City, explaining why the 10,000 threshold was inappropriate for the project and urging the City to use the ‘more stringent’ 3,000 threshold. Dr. Sarathy’s comments and letter, and the record as a whole, show there is indeed a ‘scientific and factual’ basis for using the 3,000 threshold for the project. (CEQA Guidelines, § 15064, subd. (b).)” Much of Sarathy’s evidence came from discussions at the South Coast AQMD.
With the 3,000-metric-ton threshold upheld, the question then turned to the higher baseline used in the supplemental GHG analysis, without which the project would have exceeded the threshold. Upland Community First argued – and Judge Cohn agreed – that insufficient evidence existed about the use of this threshold because the supplemental analysis did not explain why it was used.
Nevertheless, the appellate court found that the evidence was sufficient even though the supplemental analysis didn’t explain the use of the higher baseline. “Circumstantial evidence in the record plainly indicates that the 1,537 MTCO2 e/yr. increase is attributable to the 78 trucks being used in the existing operations on the project site,’ wrote Justice Fields.
He added this explanation: “[A] comparison of the ‘data sheets’ in the original and supplemental GHG analyses indicates that the GHG emissions from the 78 trucks were omitted from the original GHG analysis, but were included in the ‘updated’ emissions inventory in the supplemental GHG analysis of the 3,000 threshold. In the original GHG analysis, the data sheets show that existing GHG emissions for unmitigated ‘off-site construction,’ in the ‘hauling’ category, were 34 MTCO2 e/yr. In the supplemental GHG analysis, the data sheets show that the same GHG emissions were 1,572 MTCO2 e/yr.—an increase of 1,537 MTCO2 e/yr. “
The Case:
Upland Community First v. City of Upland, No. E078241 (filed August 15, 2024, published September 13, 2024).
The Lawyers:
For Upland Community First: Cory Briggs, Briggs Law Group, cory@briggslawcorp.com
For City of Upland: Ginetta L. Giovinco, Richards, Watson & Gershon, ggiovinco@rwglaw.com
For Bridge Development: Amanda Monchamp , Monchamp Meldrum, amonchamp@mlandlaw.com