Supreme Court of California Justia
Docket No. S217763
Center for Biological Diversity v. Cal. Dept. Fish & Wildlife

Filed 11/30/15



IN THE SUPREME COURT OF CALIFORNIA



CENTER FOR BIOLOGICAL

DIVERSITY et al.,

Plaintiffs and Respondents,

S217763

v.

Ct.App. 2/5 B245131

CALIFORNIA DEPARTMENT OF

FISH AND WILDLIFE,

Los Angeles County

Defendant and Appellant;

Super. Ct. No. BS131347

THE NEWHALL LAND

AND FARMING COMPANY,

Real Party in Interest

and Appellant.



This case presents three issues regarding the adequacy of an environmental

impact report for a large land development in northwest Los Angeles County, each

issue arising under the California Environmental Quality Act (CEQA; Pub.

Resources Code, § 21000 et seq.): (1) Does the environmental impact report

validly determine the development would not significantly impact the environment

by its discharge of greenhouse gases? (2) Are mitigation measures adopted for

protection of a freshwater fish, the unarmored threespine stickleback, improper

because they involve taking of the fish prohibited by the Fish and Game Code?


(3) Were plaintiffs‘ comments on two other areas of disputed impact submitted too

late in the environmental review process to exhaust their administrative remedies

under Public Resources Code section 21177?

We conclude, first, that as to greenhouse gas emissions the environmental

impact report employs a legally permissible criterion of significance—whether the

project was consistent with meeting statewide emission reduction goals—but the

report‘s finding that the project‘s emissions would not be significant under that

criterion is not supported by a reasoned explanation based on substantial evidence.

Second, we conclude the report‘s mitigation measures calling for capture and

relocation of the stickleback, a fully protected species under Fish and Game Code

section 5515, subdivision (b)(9), themselves constitute a taking prohibited under

subdivision (a) of the same statute. Finally, we hold that under the circumstances

of this case plaintiffs exhausted their administrative remedies regarding certain

claims of deficiency by raising them during an optional comment period on the

final report.

I. FACTUAL AND PROCEDURAL BACKGROUND

The California Department of Fish and Wildlife (DFW, formerly the

Department of Fish and Game) and the United States Army Corps of Engineers

prepared a joint environmental impact statement/environmental impact report (the

EIR)1 for two natural resource plans (the ―Resource Management and


1

Federal participation in environmental evaluation was called for under the

National Environmental Policy Act (NEPA; 42 U.S.C. § 4321 et seq.) because the
proposed infrastructure requires permits from federal agencies. Both CEQA and
NEPA provide for cooperation between state and federal agencies in
environmental review of projects, including by the preparation of joint documents.
(Pub. Resources Code, §§ 21083.6, 21083.7; 42 U.S.C. § 4332.) We generally
refer to the joint document prepared in this case simply as the EIR because we
discuss solely issues arising under CEQA.

2

Development Plan‖ and the ―Spineflower Conservation Plan‖) related to a

proposed land development called Newhall Ranch. To be developed over about

20 years on almost 12,000 acres along the Santa Clara River west of the City of

Santa Clarita, the proposed Newhall Ranch would consist of up to 20,885 dwelling

units housing nearly 58,000 residents as well as commercial and business uses,

schools, golf courses, parks and other community facilities. The project applicant

and owner of Newhall Ranch is real party in interest the Newhall Land and

Farming Company (Newhall).

Newhall Ranch‘s potential environmental impacts were previously studied

by the County of Los Angeles in connection with the county‘s 2003 approval of a

land use plan for the proposed development; the present EIR draws on but is

independent of the environmental documentation for that approval. DFW acted as

the lead state agency in preparing the EIR because the project (i.e., the Resource

Management and Development Plan and the Spineflower Conservation Plan)

called for DFW‘s concurrence in a streambed alteration agreement and issuance of

incidental take permits for protected species. Although DFW has direct authority

only over biological resource impacts from the project, the agency attempts in the

EIR to evaluate all environmental impacts from the project and the Newhall Ranch

development that would be facilitated by project approval.

DFW and the United States Army Corps of Engineers (the Corps), the lead

federal agency, issued a draft EIR in April 2009 and a final EIR in June 2010. In

December 2010, DFW certified the EIR, made the findings required by CEQA as

to significant impacts, mitigation, alternatives and overriding considerations, and

approved the project. Of relevance here, DFW found that the project could

significantly impact the unarmored threespine stickleback but that adopted

mitigation measures would avoid or substantially lessen that impact, and that

―taking into account the applicant‘s design commitments and existing regulatory

3

standards,‖ Newhall Ranch‘s emissions of greenhouse gases would have a less

than significant impact on the global climate.

Plaintiffs challenged DFW‘s actions by a petition for writ of mandate.2 The

superior court granted the petition on several grounds. The Court of Appeal

reversed, rejecting all of plaintiffs‘ CEQA claims. We granted plaintiffs‘ petition

for review.

II. DISCUSSION

The general principles governing our review of DFW‘s actions can be

simply stated. In reviewing an agency‘s nonadjudicative determination or

decision for compliance with CEQA, we ask whether the agency has prejudicially

abused its discretion; such an abuse 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.‖ (Pub. Resources Code, § 21168.5.)3 In determining

whether there has been an abuse of discretion, we review the agency‘s action, not

the trial court‘s decision. ―[I]n that sense appellate judicial review under CEQA is

de novo.‖ (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho

Cordova (2007) 40 Cal.4th 412, 427 (Vineyard Area Citizens).)

On particular questions of CEQA compliance, however, the standard of

review depends 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.) ―While we determine de novo whether the agency has employed the


2

Plaintiffs are the Center for Biological Diversity, Friends of the Santa Clara

River, Santa Clarita Organization for Planning the Environment, California Native
Plant Society, and Wishtoyo Foundation/Ventura Coastkeeper.

3

All further unspecified statutory references are to the Public Resources

Code.

4

correct procedures, . . . we accord greater deference to the agency‘s substantive

factual conclusions. In reviewing for substantial evidence, the reviewing court

‗may not set aside an agency‘s approval of an EIR on the ground that an opposite

conclusion would have been equally or more reasonable,‘ for, on factual questions,

our task ‗is not to weigh conflicting evidence and determine who has the better

argument.‘ (Laurel Heights [Improvement Assn. v. Regents of University of

California (1988)] 47 Cal.3d [376,] 393.)‖ (Ibid.)

A. The EIR’s Determination the Project’s Greenhouse Gas Emissions
Will Not Have a Significant Environmental Impact


1. Background

In California‘s landmark legislation addressing global climate change, the

California Global Warming Solutions Act of 2006, Statutes 2006, Chapter 488,

page 3419 (enacting Assem. Bill No. 32 (2005–2006 Reg. Sess.); hereafter

referred to by its common shorthand name, A.B. 32), our Legislature emphatically

established as state policy the achievement of a substantial reduction in the

emission of gases contributing to global warming. (Health & Saf. Code,

§§ 38500, 38501.) More specifically, A.B. 32 calls for reduction of such

emissions to 1990 levels by the year 2020. (Health & Saf. Code, § 38550.) The

law designates the California Air Resources Board (the Air Board) as the state

agency charged with regulating greenhouse gas emissions (id., § 38510) and calls

for the Air Board to coordinate with other state agencies to implement the state‘s

reduction goal (id., § 38501, subd. (f)).

Under A.B. 32, the Air Board was required to determine as accurately as

possible the statewide level of greenhouse gas emissions in 1990 and to approve

on that basis a statewide emissions limit to be achieved by 2020. (Health & Saf.

Code, §38550) The Air Board was required to prepare and approve by January 1,

2009, a ―scoping plan‖ for achieving the ―maximum technologically feasible and

5

cost-effective‖ reductions in greenhouse gas emissions by 2020. (Id., § 38561,

subd. (a).)

In its 2008 Climate Change Scoping Plan, the Air Board explained that

―[r]educing greenhouse gas emissions to 1990 levels means cutting approximately

30 percent from business-as-usual emission levels projected for 2020, or about 15

percent from today‘s levels.‖ (Air Resources Bd., Climate Change Scoping Plan

(Dec. 2008) Executive Summary, p. ES-1 (Scoping Plan).) The Scoping Plan then

set out a ―comprehensive array of emissions reduction approaches and tools‖ to

meet the goal, including expanding energy efficiency programs, achieving a

statewide renewable energy mix of 33 percent, developing with our regional

partners a cap-and-trade program for greenhouse gases, establishing targets and

policies for emissions in transportation and implementing existing clean

transportation programs, and creating targeted fees on certain activities affecting

emissions. (Id., pp. ES-3—ES-4.)

The Scoping Plan‘s ―business as usual‖ model is important here, as it

formed the basis for the present EIR‘s greenhouse gas significance analysis. The

Air Board had previously identified a year 2020 annual emissions limit, equal to

its estimate of statewide 1990 emissions, of 427 million metric tons of carbon

dioxide equivalent (MMTCO2E). (Scoping Plan, supra, at p. 5.) In the Scoping

Plan, the board estimated emissions by economic sector in the period 2002–2004,

finding they totaled 469 MMTCO2E annually. Those annual emissions were then

projected forward to the year 2020, employing population and economic growth

estimates, yielding a business-as-usual figure of 596 MMTCO2E. (Id., p. 13.) The

target of 427 MMTCO2E is about 29 percent below the 2020 forecast of 596

MMTCO2E, giving the Air Board the 30 percent reduction goal quoted earlier.

The Scoping Plan‘s 2020 forecast is referred to as a ―business-as-usual‖

projection because it assumes no conservation or regulatory efforts beyond what

6

was in place when the forecast was made. It ―represent[s] the emissions that

would be expected to occur in the absence of any GHG [greenhouse gas]

reductions actions.‖ (Scoping Plan, supra, appen. F, Cal.‘s Greenhouse Gas

Emissions Inventory, p. F-3.) For example, the emissions forecast for electricity

generation assumes ―all growth in electricity demand by 2020 will be met by in-

state natural gas-fired power plants‖ and the estimate for on-road vehicle

emissions ―assumes no change in vehicle fleet mix over time.‖ (Id., p. F-4.)

Neither A.B. 32 nor the Air Board‘s Scoping Plan set out a mandate or

method for CEQA analysis of greenhouse gas emissions from a proposed project.

A 2007 CEQA amendment, however, required the preparation, adoption and

periodic update of guidelines for mitigation of greenhouse gas impacts. (Stats.

2007, ch. 185, § 1, p. 2330, adding Pub. Resources Code, § 21083.05.) In 2010,

the Natural Resources Agency adopted a new CEQA Guideline on Determining

the Significance of Impacts from Greenhouse Gas Emissions. (Cal. Code Regs.,

tit. 14, § 15064.4.)4

The new guideline provides that a lead agency should attempt to ―describe,

calculate or estimate‖ the amount of greenhouse gases the project will emit, but

recognizes that agencies have discretion in how to do so. (Guidelines, § 15064.4,

subd. (a).) It goes on to provide that when assessing the significance of


4

The CEQA Guidelines (Guidelines), promulgated by the state Natural

Resources Agency and found in title 14 of the California Code of Regulations,
section 15000 et seq., are statutorily mandated to provide ―criteria for public
agencies to follow in determining whether or not a proposed project may have a
‗significant effect on the environment.‘ ‖ (§ 21083, subd. (b).) We give the
Guidelines great weight in interpreting CEQA, except where they are clearly
unauthorized or erroneous. (Vineyard Area Citizens, supra, 40 Cal.4th at p. 428,
fn. 5; Laurel Heights Improvement Assn. v. Regents of University of
California
(1993) 6 Cal.4th 1112, 1123.)

7

greenhouse gas emissions, the agency should consider these factors among others:

―(1) The extent to which the project may increase or reduce greenhouse gas

emissions as compared to the existing environmental setting; [¶] (2) Whether the

project emissions exceed a threshold of significance that the lead agency

determines applies to the project[;] [¶] (3) The extent to which the project

complies with regulations or requirements adopted to implement a statewide,

regional, or local plan for the reduction or mitigation of greenhouse gas emissions.

Such requirements must be adopted by the relevant public agency through a public

review process and must reduce or mitigate the project‘s incremental contribution

of greenhouse gas emissions. If there is substantial evidence that the possible

effects of a particular project are still cumulatively considerable notwithstanding

compliance with the adopted regulations or requirements, an EIR must be prepared

for the project.‖ (Id., subd. (b).)

2. The EIR’s Significance Determination

In order to evaluate the project‘s greenhouse gas emissions impact, the EIR

attempts to quantify the emissions currently generated on the project site in its

existing uses and the emissions that would be generated by full development of the

Newhall Ranch community. Annual emissions from the existing uses (primarily

oil wells and agriculture) are estimated at 10,272 metric tons of CO2, which the

EIR conservatively treats as zero for purposes of the impact analysis. The annual

greenhouse gas emissions from Newhall Ranch at full build-out are projected to be

269,053 metric tons of CO2 equivalent (MTCO2E).

The EIR asserts that while this annual emissions increase of 269,053

MTCO2E is ―an obvious change to existing, on-site conditions,‖ the global nature

of climate change and the ―absence of scientific and factual information‖ on the

significance of particular amounts of greenhouse gas emissions make the change

8

―[in]sufficient to support a significance determination.‖ The EIR accordingly goes

on to consider ―whether the proposed Project‘s emissions . . . would impede the

State of California‘s compliance with the statutory emissions reduction mandate

established by AB 32.‖

The EIR‘s method for determining whether the project would impede

achievement of A.B. 32‘s goals is modeled on the Air Board‘s use, in its Scoping

Plan, of comparison to a ―business-as-usual‖ projection as a measure of the

emission reductions needed to meet the 2020 goal (determined to be a reduction of

29 percent from business as usual). As explained earlier, the Scoping Plan

forecasted statewide greenhouse gas emissions under a business-as-usual scenario

in which no additional regulatory actions were taken to reduce emissions. The

EIR does the same for Newhall Ranch, estimating at 390,046 MTCO2E per year

the emissions ―if the proposed Project and resulting development were constructed

consistent with [the Air Board‘s] assumptions for the CARB 2020 NAT [no action

taken, or business as usual] scenario.‖ Because the EIR‘s estimate of actual

annual project emissions (269,053 MTCO2E) is 31 percent below its

business-as-usual estimate (390,046 MTCO E), exceeding the Air Board‘s

2

determination of a 29 percent reduction from business as usual needed statewide,

the EIR concludes the project‘s likely greenhouse gas emissions will not impede

achievement of A.B. 32‘s goals and are therefore less than significant for CEQA

purposes.

3. Analysis

We consider whether DFW abused its discretion in determining the

project‘s greenhouse gas emissions would not have a significant environmental

impact, either because it failed to proceed in the manner required by CEQA or

9

because it made the no significant impact determination without the support of

substantial evidence in the administrative record. (§ 21168.5.)

Plaintiffs contend the EIR‘s no significant impact conclusion resulted from

use of a legally improper baseline for comparison. Relying on this court‘s

decision in Communities for a Better Environment v. South Coast Air Quality

Management Dist. (2010) 48 Cal.4th 310 (Communities for a Better Environment),

in which we disapproved the defendant district‘s use of pollutant emission levels

allowed under prior permits—but not reflecting actual existing conditions—as a

comparative baseline for a CEQA significance evaluation, plaintiffs argue DFW

erred in determining significance by comparison to the hypothetical business-as-

usual scenario rather than by comparison to existing greenhouse gas emissions on

the project site.

DFW contends it properly relied on methodology devised by the Air Board,

the state agency with greatest expertise on climate change. Newhall defends the

EIR‘s approach and conclusion extensively, arguing that DFW acted within its

discretion under Guidelines section 15064.4 in adopting compliance with A.B.

32‘s goals as its significance criterion and that both DFW‘s choice of methodology

and its conclusion of no significant impact should be reviewed only for support by

substantial evidence.

We begin with the broadest question posed: Did DFW abuse its discretion

in adopting consistency with A.B. 32‘s reduction goals as its significance criterion

for the project‘s greenhouse gas emissions? We review this issue de novo, as it is

predominantly a legal question of correct CEQA procedure. (Communities for a

Better Environment, supra, 48 Cal.4th at p. 319; Vineyard Area Citizens, supra, 40

Cal.4th at p. 435.)

Before considering the principal statutory and regulatory provisions

governing CEQA analysis of greenhouse gas emissions (§ 21083.05; Guidelines,

10

§ 15064.4), we address two related aspects of the greenhouse gas problem that

inform our discussion of CEQA significance.

First, because of the global scale of climate change, any one project‘s

contribution is unlikely to be significant by itself. The challenge for CEQA

purposes is to determine whether the impact of the project‘s emissions of

greenhouse gases is cumulatively considerable, in the sense that ―the incremental

effects of [the] individual project are considerable when viewed in connection

with the effects of past projects, the effects of other current projects, and the

effects of probable future projects.‖ (§21083, subd. (b)(2); see Guidelines,

§ 15064, subd. (h)(1).) ―With respect to climate change, an individual project‘s

emissions will most likely not have any appreciable impact on the global problem

by themselves, but they will contribute to the significant cumulative impact caused

by greenhouse gas emissions from other sources around the globe. The question

therefore becomes whether the project‘s incremental addition of greenhouse gases

is ‗cumulatively considerable‘ in light of the global problem, and thus significant.‖

(Crockett, Addressing the Significance of Greenhouse Gas Emissions Under

CEQA: California’s Search for Regulatory Certainty in an Uncertain World (July

2011) 4 Golden Gate U. Envtl. L.J. 203, 207–208 (hereafter Addressing the

Significance of Greenhouse Gas Emissions).)

Second, the global scope of climate change and the fact that carbon dioxide

and other greenhouse gases, once released into the atmosphere, are not contained

in the local area of their emission means that the impacts to be evaluated are also

global rather than local. For many air pollutants, the significance of their

environmental impact may depend greatly on where they are emitted; for

greenhouse gases, it does not. For projects, like the present residential and

commercial development, which are designed to accommodate longterm growth in

California‘s population and economic activity, this fact gives rise to an argument

11

that a certain amount of greenhouse gas emissions is as inevitable as population

growth. Under this view, a significance criterion framed in terms of efficiency is

superior to a simple numerical threshold because CEQA is not intended as a

population control measure.

The EIR makes this point in its response to plaintiff Center for Biological

Diversity‘s comments on the greenhouse gas significance analysis: ―[W]hen

location does not matter (such as in the case of GHG emissions), evaluation of

project significance via an efficiency metric is appropriate. [¶] [F]or a global

environmental issue (such as climate change), utilizing an absolute number as a

significance criterion equates to attempting to use CEQA to discourage population

growth. Of note, the future residents and occupants of development enabled by

Project approval would exist and live somewhere else if this Project is not

approved. Whether ‗here or there,‘ GHG emissions associated with such

population growth will occur.‖

These considerations militate in favor of consistency with meeting A.B.

32‘s statewide goals as a permissible significance criterion for project emissions.

Meeting our statewide reduction goals does not preclude all new development.

Rather, the Scoping Plan—the state‘s roadmap for meeting A.B. 32‘s target—

assumes continued growth and depends on increased efficiency and conservation

in land use and transportation from all Californians. (See Scoping Plan, supra,

pp. ES-1 [meeting the A.B. 32 goal ―means reducing our annual emissions of 14

tons of carbon dioxide equivalent for every man, woman and child in California

down to about 10 tons per person by 2020‖]; id. at pp. 15 [―Every part of

California‘s economy needs to play a role in reducing greenhouse gas emissions‖],

42 [outlining energy efficiency measures for both new and existing buildings].)

To the extent a project incorporates efficiency and conservation measures

sufficient to contribute its portion of the overall greenhouse gas reductions

12

necessary, one can reasonably argue that the project‘s impact ―is not ‗cumulatively

considerable,‘ because it is helping to solve the cumulative problem of greenhouse

gas emissions as envisioned by California law.‖ (Addressing the Significance of

Greenhouse Gas Emissions, supra, 4 Golden Gate U. Envtl. L.J. at p. 210.)

Given the reality of growth, some greenhouse gas emissions from new

housing and commercial developments are inevitable. The critical CEQA

question is the cumulative significance of a project‘s greenhouse gas emissions,

and from a climate change point of view it does not matter where in the state those

emissions are produced. Under these circumstances, evaluating the significance of

a residential or mixed use project‘s greenhouse gas emissions by their effect on the

state‘s efforts to meet its longterm goals makes at least as much sense as

measuring them against an absolute numerical threshold.

Using consistency with A.B. 32‘s statewide goal for greenhouse gas

reduction, rather than a numerical threshold, as a significance criterion is also

consistent with the broad guidance provided by section 15064.4 of the CEQA

Guidelines. As the issuing agency explained, section 15064.4 was drafted to

reflect ―the existing CEQA principle that there is no iron-clad definition of

‗significance.‘ ‖ (Natural Resources Agency, Final Statement of Reasons for

Regulatory Action: Amendments to the State CEQA Guidelines Addressing

Analysis and Mitigation of Greenhouse Gas Emissions Pursuant to SB 97 (Dec.

2009) p. 20 (Final Statement of Reasons); cf. Pub. Res. Code, § 21083.05

[requiring periodic update of CEQA Guidelines for mitigation of greenhouse gas

emissions to reflect new information or criteria established by Air Resources

Board].) Section 15064.4 was not intended to closely restrict agency discretion in

choosing a method for assessing greenhouse gas emissions, but rather ―to assist

lead agencies‖ in investigating and disclosing ―all that they reasonably can‖

13

regarding a project‘s greenhouse gas emissions impacts. (Final Statement of

Reasons, supra, at p. 20.)5

While Guidelines section 15064.4 states a lead agency ―should consider,‖

among other factors, ―[t]he extent to which the project may increase or reduce

greenhouse gas emissions as compared to the existing environmental setting‖ (id.,

subd. (b)(1)) and ―[w]hether the project emissions exceed a threshold of

significance that the lead agency determines applies to the project‖ (id., subd.

(b)(2)), the section does not mandate the use of absolute numerical thresholds to

measure the significance of greenhouse gas emissions. The factors listed in

subdivision (b) are not exclusive. They are rather intended ―to assist lead agencies

in collecting and considering information relevant to a project‘s incremental

contribution of GHG emissions and the overall context of such emissions.‖ (Final

Statement of Reasons, supra, at p. 24.)

The present EIR discloses the project‘s likely increase in emissions over the

existing environment, informing the reader that the project will increase

greenhouse gas emissions by 269,053 MTCO2E compared to the existing

environmental setting (Guidelines, §15064.4, subd. (b)(1)), but declines to

consider the impact significant based on the size of that increase alone ―because of


5

In an amicus curiae brief, the Natural Resources Agency argues that

because Guidelines section 15064.4 was not yet in force when DFW circulated its
draft EIR for public comment, the lead agency was not obliged to comply with
that regulation. Because we hold the regulation did not prohibit reliance on
consistency with A.B. 32‘s goals as a significance criterion (pp. 13-16), and
further hold DFW‘s use of a business-as-usual model was deficient for reasons
independent of Guidelines section 15064.4 (post, pp. 19-23), we need not decide
whether the new Guideline section, which was operative March 18, 2010, applied
to the final EIR circulated in June 2010 and to DFW‘s December 2010 approval of
Newhall Ranch. (See Guidelines, § 15007 [prospective application of
amendments to Guidelines].)

14

the absence of scientific and factual information regarding when particular

quantities of greenhouse gas emissions become significant.‖ As for a significance

threshold (id., subd. (b)(2)), the EIR asserts that no agency had adopted an

applicable threshold.

Plaintiffs challenge these statements as insufficient to justify the EIR‘s

choice of methodology, noting that California air pollution control officials and air

quality districts have made several proposals for numerical thresholds. But given

that multiple agencies‘ efforts at framing greenhouse gas significance issues have

not yet coalesced into any widely accepted set of numerical significance

thresholds, but have produced ―a certain level of consensus‖ on the value of A.B.

32 consistency as a criterion (Addressing the Significance of Greenhouse Gas

Emissions, supra, 4 Golden Gate U. Envtl. L.J. at p. 209), we cannot conclude

DFW‘s discretionary choice of A.B. 32 consistency as a significance criterion for

this project violated Guidelines section 15064.4, subdivisions (b)(1) or (b)(2).

Subdivision (b)(3) of Guidelines section 15064.4 states the lead agency

should also consider ―[t]he extent to which the project complies with regulations

or requirements adopted to implement a statewide, regional, or local plan for the

reduction or mitigation of greenhouse gas emissions.‖ A.B. 32 did not create a set

of ―regulations or requirements‖ implementing a ―plan‖ (Guidelines, § 15064.4,

subd. (b)(3)); indeed, it is not a plan but rather a statement of policies and

objectives. The Scoping Plan adopted pursuant to A.B. 32 is a plan for reducing

greenhouse gas emissions, but does not itself establish the regulations by which it

is to be implemented; rather, it sets out how existing regulations, and new ones yet

to be adopted at the time of the Scoping Plan, will be used to reach A.B. 32‘s

emission reduction goal. At the time the Natural Resources Agency promulgated

Guidelines section 15064.4, the agency explained that the Scoping Plan ―may not

be appropriate for use in determining the significance of individual projects . . .

15

because it is conceptual at this stage and relies on the future development of

regulations to implement the strategies identified in the Scoping Plan.‖ (Final

Statement of Reasons, supra, at pp. 26–27.)

In short, neither A.B. 32 nor the Scoping Plan establishes regulations

implementing, for specific projects, the Legislature‘s statewide goals for reducing

greenhouse gas emissions. Neither constitutes a set of ―regulations or

requirements adopted to implement‖ a statewide reduction plan within the

meaning of Guidelines section 15064.4, subdivision (b)(3). That guideline,

however, does not expressly or impliedly prohibit a lead agency from using the

A.B. 32 goals themselves to determine whether the project‘s projected greenhouse

gas emissions are significant. As noted by the Natural Resources Agency in its

amicus curiae brief, ―a discussion of a project‘s consistency with the State‘s long-

term climate stabilization objectives . . . will often be appropriate . . . under

CEQA,‖ provided the analysis is ―tailored . . . specifically to a particular project.‖

Indeed, to proceed in this manner is consistent with CEQA‘s ―inherent recognition

. . . that if a plan is in place to address a cumulative problem, a new project‘s

incremental addition to the problem will not be ‗cumulatively considerable‘ if it is

consistent with the plan and is doing its fair share to achieve the plan‘s goals.‖

(Addressing the Significance of Greenhouse Gas Emissions, supra, 4 Golden Gate

U. Envtl. L.J. at pp. 210–211.) For this reason as well, we conclude DFW‘s

choice to use that criterion does not violate CEQA. The only published Court of

Appeal decisions to consider this question have reached the same conclusion,

albeit with little discussion. (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, 335–336.)

A qualification regarding the passage of time is in order here. Plaintiffs do

not claim it was improper for this EIR, issued in 2010, to look forward only to

16

2020 for a guidepost on reductions in greenhouse gas emissions, and we therefore

do not consider the question whether CEQA required the EIR to address the state‘s

goals beyond 2020. Nevertheless, over time consistency with year 2020 goals will

become a less definitive guide, especially for longterm projects that will not begin

operations for several years. An EIR taking a goal-consistency approach to CEQA

significance may in the near future need to consider the project‘s effects on

meeting longer term emissions reduction targets.6

Having concluded DFW did not proceed in violation of CEQA by its choice

of A.B. 32 consistency as a significance criterion, we proceed to plaintiff‘s

contention that the agency violated CEQA by comparing the project‘s expected

emissions to a hypothetical business-as-usual scenario rather than to a baseline of

emissions in the existing physical environment.

In Communities for a Better Environment, supra, 48 Cal.4th 310, a refinery

sought a permit to conduct a new process using some new and some existing

equipment, including existing boilers used for steam generation, each of which

was subject to an existing permit setting its maximum rate of operation. (Id. at

6

Executive Order No. S-3-05, signed by Governor Schwarzenegger on June

1, 2005, set reduction targets of 1990 levels by 2020 and 80 percent below 1990
levels by 2050. A.B. 32 codified the 2020 goal but did not indicate any intent to
abandon the 2050 goal; indeed, the Legislature cited the executive order and
indicated its intent that the climate policy efforts the order initiated continue.
(Health & Saf. Code, § 38501, subd. (i).) More recently, in an update to the
Scoping Plan, the Air Board noted the need for steep post-2020 reductions and
proposed the state adopt a ―strong mid-term target‖ for the year 2030, in the range
of 35–50 percent below 1990 levels. (Air Resources Board, First Update to the
Climate Change Scoping Plan: Building on the Framework (May 2014), p. 34.)
Executive Order No. B-30-15, signed by Governor Brown on April 29, 2015,
endorsed the effort to set ―an interim target of emission reductions for 2030.‖
Pending legislation would codify this additional goal, directing the Air Board to
establish a 2030 limit equivalent to 40 percent below 1990 levels. (Sen. Bill No.
32 (2015–2016 Reg. Sess.) § 4.)

17

pp. 317–318.) The negative declaration the regional air district prepared for the

project, in determining the significance of the project‘s nitrogen oxide emissions,

treated emissions that could be generated by the existing boilers operating together

at their maximum permitted capacity (a condition that did not occur in normal

operation) as part of the baseline for environmental review rather than as part of

the project. (Id. at p. 318.) Although the negative declaration acknowledged that

actual nitrogen oxide emissions would increase under the project by an amount

that would normally be considered significant, the declaration determined the

emissions were not significant because they were below what could have been

emitted by the refinery‘s boilers under the existing permits. (Ibid.)

We held the air district‘s approach violated the rule expressed in Guidelines

section 15125, subdivision (a), as well as in case law, that the comparative

baseline for a significance determination should normally be the existing physical

conditions in the project‘s vicinity. (Communities for a Better Environment,

supra, 48 Cal.4th at pp. 320–322.) ―By comparing the proposed project to what

could happen, rather than to what was actually happening, the District set the

baseline not according to ‗established levels of a particular use,‘ but by ‗merely

hypothetical conditions allowable‘ under the permits. [Citation.] Like an EIR, an

initial study or negative declaration ‗must focus on impacts to the existing

environment, not hypothetical situations.‘ [Citation.]‖ (Id. at p. 322.)

Contrary to plaintiffs‘ arguments, we do not see the EIR‘s approach here as

comparable to that of the negative declaration in Communities for a Better

Environment. Unlike the air district in Communities for a Better Environment,

DFW does not claim its business-as-usual model represented ―the physical

environmental conditions . . . as they exist‖ at the time of environmental analysis.

(Guidelines, § 15125, subd. (a).) Rather, it employs a hypothetical business-as-

usual emissions model merely as a means of comparing the project‘s projected

18

emissions to the statewide target set under the Scoping Plan. The business-as-

usual emissions model is used here as a comparative tool for evaluating efficiency

and conservation efforts, not as a significance baseline.

The percentage reduction from business as usual identified by the Scoping

Plan is a measure of the reduction effort needed to meet the 2020 goal, not an

attempt to describe the existing level of greenhouse gas emissions. Similarly, the

EIR employs its calculation of project reductions from business-as-usual

emissions in an attempt to show the project incorporates efficiency and

conservation measures sufficient to make it consistent with achievement of A.B.

32‘s reduction goal, not to show the project will not increase greenhouse gas

emissions over those in the existing environment. As discussed earlier, distinctive

aspects of the greenhouse gas problem make consistency with statewide reduction

goals a permissible significance criterion for such emissions. Using a hypothetical

scenario as a method of evaluating the proposed project‘s efficiency and

conservation measures does not violate Guidelines section 15125 or contravene

our decision in Communities for a Better Environment.

Notwithstanding this conclusion, we agree with plaintiffs that DFW abused

its discretion in finding, on the basis of the EIR‘s business-as-usual comparison,

that the project‘s greenhouse gas emissions would have no cumulatively

significant impact on the environment. We reach this conclusion because the

administrative record discloses no substantial evidence that Newhall Ranch‘s

project-level reduction of 31 percent in comparison to business as usual is

consistent with achieving A.B. 32‘s statewide goal of a 29 percent reduction from

business as usual, a lacuna both dissenting opinions fail to address. Even using the

EIR‘s own significance criterion, the EIR‘s analysis fails to support its conclusion

of no significant impact.

19

The Scoping Plan set out a statewide reduction goal and a framework for

reaching it—a set of broadly drawn regulatory approaches covering all sectors of

the California economy and projected, if implemented and followed, to result in a

reduction to 1990-level greenhouse gas emissions by the year 2020. The plan

expressed the overall level of conservation and efficiency improvements required

as, among other measures, a percentage reduction from a hypothetical scenario in

which no additional regulatory actions were taken. But the Scoping Plan nowhere

related that statewide level of reduction effort to the percentage of reduction that

would or should be required from individual projects, and nothing DFW or

Newhall have cited in the administrative record indicates the required percentage

reduction from business as usual is the same for an individual project as for the

entire state population and economy.

Plaintiffs put forward one ready reason to suspect that the percent reduction

is not the same, and that in fact a greater degree of reduction may be needed from

new land use projects than from the economy as a whole: Designing new

buildings and infrastructure for maximum energy efficiency and renewable energy

use is likely to be easier, and is more likely to occur, than achieving the same

savings by retrofitting of older structures and systems. The California Attorney

General‘s Office made this point while commenting on an air district‘s greenhouse

gas emissions reduction plan, in a letter one of the plaintiffs brought to DFW‘s

attention in a comment on the EIR: ―The [air district] Staff Report seems to

assume that if new development projects reduce emissions by 29 percent

compared to ‗business as usual,‘ the 2020 statewide target of 29 percent below

‗business as usual‘ will also be achieved, but it does not supply evidence of this.

Indeed, it seems that new development must be more GHG-efficient than this

average, given that past and current sources of emissions, which are substantially

less efficient than this average, will continue to exist and emit.‖ In its

20

administrative response to this comment, DFW observed that the Scoping Plan did

call for emissions reductions from existing buildings (though these are not

separately quantified) and that one air district‘s analysis of the Scoping Plan

indicated the ―land-use driven‖ economic sector would be required to make only a

26.2 percent reduction from business as usual.

DFW‘s responses to comments on the EIR do not suffice to demonstrate

that a 31 percent reduction from business as usual at the project level corresponds

to the statewide reductions called for in the Scoping Plan. In its brief, Newhall

characterizes this question as one of competing expert opinions, on which the

courts must defer to the lead agency. But Newhall points to no expert opinion

stating generally that the Scoping Plan contemplates the same emission reductions

from new buildings as from existing ones, or more particularly that the Scoping

Plan‘s statewide standard of a 29 percent reduction from business as usual applies

without modification to a new residential or mixed use development project.

Even if the state-wide and economy-wide percentage reduction set out in

the Scoping Plan were shown to be generally appropriate for use as a criterion of

significance for individual projects, the EIR‘s conclusion that greenhouse gas

emissions will be less than significant would still lack substantial supporting

evidence. This is because the EIR makes an unsupported assumption regarding

statewide density averages used in the Scoping Plan, an assumption that if

incorrect could result in a misleading business-as-usual comparison. As plaintiffs

point out, the EIR‘s business-as-usual scenario assumes residential density equal

to that currently found in the Santa Clarita Valley. Because Newhall Ranch as

designed would have greater residential density than the existing average for the

Santa Clarita Valley, the EIR makes a downward adjustment from business as

usual in projected vehicle miles traveled, and consequently in greenhouse gas

emissions from mobile sources (a substantial part of the total emissions). As far as

21

the EIR reveals, however, the Scoping Plan‘s statewide business-as-usual model is

not necessarily based on residential densities equal to the Santa Clarita Valley

average.

The Scoping Plan‘s business-as-usual projection of vehicle miles traveled

in 2020 was derived using an established growth model for such projections.

(Scoping Plan, supra, appen. F, at pp. F-3—F-4.) But nothing DFW or Newhall

points to in the administrative record shows the statewide density assumptions

used in that model mirror conditions in the Santa Clarita Valley. To the extent the

Scoping Plan‘s business-as-usual scenario assumes population densities greater

than the Santa Clarita Valley density assumed in the EIR‘s business-as-usual

projection, the EIR‘s comparison of project reductions from business as usual to

reductions demanded in the Scoping Plan will be misleading. The administrative

record does not establish a firm ground for the efficiency comparison the EIR

makes and thus, for this reason as well, does not substantially support the EIR‘s

conclusion that Newhall Ranch‘s 31 percent emissions savings over business as

usual satisfies the report‘s significance criterion of consistency with the Scoping

Plan‘s 29 percent statewide savings by 2020.

At bottom, the EIR‘s deficiency stems from taking a quantitative

comparison method developed by the Scoping Plan as a measure of the

greenhouse gas emissions reduction effort required by the state as a whole, and

attempting to use that method, without consideration of any changes or

adjustments, for a purpose very different from its original design: To measure the

efficiency and conservation measures incorporated in a specific land use

development proposed for a specific location. The EIR simply assumes that the

level of effort required in one context, a 29 percent reduction from business as

usual statewide, will suffice in the other, a specific land use development. From

the information in the administrative record, we cannot say that conclusion is

22

wrong, but neither can we discern the contours of a logical argument that it is

right. The analytical gap left by the EIR‘s failure to establish, through substantial

evidence and reasoned explanation, a quantitative equivalence between the

Scoping Plan‘s statewide comparison and the EIR‘s own project-level comparison

deprived the EIR of its ― ‗sufficiency as an informative document.‘ ‖ (Laurel

Heights Improvement Assn. v. Regents of University of California, supra, 47

Cal.3d at p. 392.)

Justice Corrigan argues our conclusion on this point, requiring DFW to

support its chosen quantitative method for analyzing significance with evidence

and reasoned argument, is inconsistent with the deferential nature of our review.

(Conc. & dis. opn. of Corrigan, J., post, at p. 4.) We disagree. A lead agency

enjoys substantial discretion in its choice of methodology. But when the agency

chooses to rely completely on a single quantitative method to justify a no-

significance finding, CEQA demands the agency research and document the

quantitative parameters essential to that method. Otherwise, decision makers and

the public are left with only an unsubstantiated assertion that the impacts—here,

the cumulative impact of the project on global warming—will not be significant.

(See Guidelines, § 15064, subd. (f)(5) [substantial evidence to support a finding on

significance includes ―facts, reasonable assumptions predicated upon facts, and

expert opinion supported by facts,‖ but not ―[a]rgument, speculation, [or]

unsubstantiated opinion‖].)

Nor is Justice Corrigan correct that our analysis ―assumes project-level

reductions in greenhouse gas emissions must be greater than the reductions

California is seeking to achieve statewide.‖ (Conc. & dis. opn. of Corrigan, J.,

post, at p. 2.) As discussed just above (ante, pp. 22–23), we hold only that DFW

erred in failing to substantiate its assumption that the Scoping Plan‘s statewide

23

measure of emissions reduction can also serve as the criterion for an individual

land use project.

We further agree with plaintiffs that DFW‘s failure to provide substantial

evidentiary support for its no significant impact conclusion was prejudicial, in that

it deprived decision makers and the public of substantial relevant information

about the project‘s likely impacts. (Neighbors for Smart Rail v. Exposition Metro

Line Construction Authority (2013) 57 Cal.4th 439, 463 (lead opn. of Werdegar,

J.); Environmental Protection Information Center v. California Dept. of Forestry

& Fire Protection (2008) 44 Cal.4th 459, 485–486; Sierra Club v. State Bd. of

Forestry (1994) 7 Cal.4th 1215, 1236–1237.) In this EIR, DFW employed the

business-as-usual comparison as its sole criterion of significance. In the absence

of substantial evidence to support the EIR‘s no-significance finding, as noted

above, the EIR‘s readers have no way of knowing whether the project‘s likely

greenhouse gas emissions impacts will indeed be significant and, if so, what

mitigation measures will be required to reduce them. This is not the sort of

―[i]nsubstantial or merely technical omission[]‖ that can be overlooked in deciding

whether to grant relief. (Neighbors for Smart Rail v. Exposition Metro Line

Construction Authority, supra, at p. 463.)

We briefly address some of the potential options for DFW on remand and

for other lead agencies faced with evaluating the cumulative significance of a

proposed land use development‘s greenhouse gas emissions. While the burden of

CEQA‘s mandate in this context can be substantial, methods for complying with

CEQA do exist. We do not, of course, guarantee that any of these approaches will

be found to satisfy CEQA‘s demands as to any particular project; what follows is

merely a description of potential pathways to compliance, depending on the

circumstances of a given project.

24

First, although we have found the particular comparison made here lacking

in support, and although doubt has been cast on the Scoping Plan‘s project-level

appropriateness (see Final Statement of Reasons, supra, at pp. 24–25), a business-

as-usual comparison based on the Scoping Plan‘s methodology may be possible.

On an examination of the data behind the Scoping Plan‘s business-as-usual model,

a lead agency might be able to determine what level of reduction from business as

usual a new land use development at the proposed location must contribute in

order to comply with statewide goals.

Second, a lead agency might assess consistency with A.B. 32‘s goal in

whole or part by looking to compliance with regulatory programs designed to

reduce greenhouse gas emissions from particular activities. (See Final Statement

of Reasons, supra, at p. 64 [greenhouse gas emissions ―may be best analyzed and

mitigated at a programmatic level.‖].) To the extent a project‘s design features

comply with or exceed the regulations outlined in the Scoping Plan and adopted

by the Air Board or other state agencies, a lead agency could appropriately rely on

their use as showing compliance with ―performance based standards‖ adopted to

fulfill ―a statewide . . . plan for the reduction or mitigation of greenhouse gas

emissions.‖ (Guidelines, § 15064.4, subds. (a)(2), (b)(3); see also id., § 15064,

subd. (h)(3) [determination that impact is not cumulatively considerable may rest

on compliance with previously adopted plans or regulations, including ―plans or

regulations for the reduction of greenhouse gas emissions‖].)

A significance analysis based on compliance with such statewide

regulations, however, only goes to impacts within the area governed by the

regulations. That a project is designed to meet high building efficiency and

conservation standards, for example, does not establish that its greenhouse gas

emissions from transportation activities lack significant impacts. (Final Statement

of Reasons, supra, at p. 23.) Although transportation accounts for almost 40

25

percent of the state‘s greenhouse gas emissions, and transportation emissions are

affected by the location and density of residential and commercial development,

the Scoping Plan does not propose statewide regulation of land use planning but

relies instead on local governments. (Scoping Plan, supra, at pp. 11, 27.)

Local governments thus bear the primary burden of evaluating a land use

project‘s impact on greenhouse gas emissions. Some of this burden can be

relieved by using geographically specific greenhouse gas emission reduction plans

to provide a basis for the tiering or streamlining of project-level CEQA analysis.

Guidelines section 15183.5, added in 2010 along with section 15064.4, explains in

detail how a programmatic effort such as ―a general plan, a long range

development plan, or a separate plan to reduce greenhouse gas emissions‖ (id.,

§ 15183.5, subd. (a)) may, if sufficiently detailed and adequately supported, be

used in later project-specific CEQA documents to simplify the evaluation of the

project‘s cumulative contribution to the effects of greenhouse gas emissions (id. at

subd. (b)). (Guidelines, § 15183.5, subds. (a), (b).) The Scoping Plan encourages

local jurisdictions to develop ― ‗climate action plans‘ ‖ or greenhouse gas

― ‗emissions reduction plans‘ ‖ for their geographic areas, and several jurisdictions

have adopted or proposed such plans as tools for CEQA streamlining. (Final

Statement of Reasons, supra, at p. 65; see, e.g., City of Milpitas, Climate Action

Plan and Qualified Greenhouse Gas Reduction Strategy (May 2013), p. 1-1; City

of San Bernardino, Sustainability Master Plan (Public Review Draft, Aug. 2012),

p. 4.)

In addition, CEQA expressly allows streamlining of transportation impacts

analysis for certain land use projects based on metropolitan regional ―sustainable

communities strategies.‖ Under follow-up legislation to A.B. 32 (Stats. 2008, ch.

728, p. 5065, commonly known as S.B. 375) each metropolitan planning

organization in the state is to prepare a ―sustainable communities strategy‖ or

26

alternative plan to meet regional targets set by the Air Board for greenhouse gas

emissions from cars and light trucks. (Gov. Code, § 65080, subd. (b)(2).) CEQA

documents for certain residential, mixed use and transit priority projects that are

consistent with the limits and policies specified in an applicable sustainable

communities strategy need not additionally analyze greenhouse gas emissions

from cars and light trucks. (§§ 21155.2, 21159.28; Guidelines, § 15183.5, subd.

(c).)

Third, a lead agency may rely on existing numerical thresholds of

significance for greenhouse gas emissions, though as we have explained (ante,

p. 14), use of such thresholds is not required. (Guidelines, § 15064.4, subd. (b)(2);

see, e.g., Bay Area Air Quality Management Dist. (BAAQMD), CEQA Guidelines

Update: Proposed Thresholds of Significance (May 3, 2010), pp. 8–21 [regional

air quality district for the San Francisco Bay Area proposes a threshold of 1100

MTCO2E in annual emissions as one alternative agencies may use in determining

CEQA significance for new land use projects].)7 Thresholds, it should be noted,

only define the level at which an environmental effect ―normally‖ is considered

significant; they do not relieve the lead agency of its duty to determine the


7

BAAQMD approved its greenhouse gas thresholds along with other CEQA

thresholds of significance in June 2010, but has refrained from recommending
their use pending the completion of litigation challenging its promulgation of
thresholds. (BAAQMD, CEQA Air Quality Guidelines (May 2012 update),
p. 2-5.) The litigation is currently pending in this court (Cal. Building Industry
Association v. Bay Area Air Quality Management District
, review granted Nov.
26, 2013, S213478), but the question we granted review to decide relates solely to
certain BAAQMD thresholds for analyzing the effect of existing pollution sources
on projects bringing more users or residents to a location. The validity of the
greenhouse gas source thresholds is not under examination in this court. (Id.,
order Nov. 26, 2013.)

27

significance of an impact independently. (Guidelines, § 15064.7, subd. (a)); Mejia

v. City of Los Angeles (2005) 130 Cal.App.4th 322, 342.)

For a large land use project such as Newhall Ranch, using a numerical

threshold may result in a determination of significant greenhouse gas emission

impacts. In that circumstance, the lead agency must adopt feasible mitigation

measures or project alternatives to reduce the effect to insignificance; to the extent

significant impacts remain after mitigation, the agency may still approve the

project with a statement of overriding considerations. (§§ 21002, 21002.1, subd.

(b), 21081; Guidelines, §§ 15091, 15093, 15126.6.) Were DFW to determine on

remand that adding hundreds of thousands of tons of greenhouse gasses to the

atmosphere has a cumulatively significant effect, therefore, it would not

necessarily be required to disapprove the project on that basis. The agency could

instead adopt whatever feasible alternatives and mitigation measures exist beyond

the efficiency and conservation features already incorporated in the project design

and, to the extent those measures do not reduce the cumulative impact of the

project below the chosen threshold of significance, DFW could add a discussion of

these impacts, and the countervailing benefits of the project, to the statement of

overriding considerations the agency previously adopted in approving the project.

B. The EIR’s Mitigation Measures for Protection of Unarmored

Threespine Stickleback

Finding that infrastructure construction and building of Newhall Ranch

could result in significant impacts to special status wildlife and plant species,

DFW adopted numerous biological impact mitigation measures. Mitigation

measures BIO-44 and BIO-46 provide for collection and relocation of special

status fish, including the unarmored threespine stickleback, during construction in,

or diversion of, the Santa Clara River. Such actions would be performed by

United States Fish and Wildlife Service personnel or their agents.

28

We agree with plaintiffs that specifying these actions as mitigation in an

EIR violates the Fish and Game Code section 5515‘s prohibition on authorizing

the taking or possession of fully protected fish in mitigation of project impacts

under CEQA. DFW may conduct or authorize capture and relocation of the

stickleback as a conservation measure to protect the fish and aid in its recovery,

but the agency may not rely in a CEQA document on the prospect of capture and

relocation as mitigating a project‘s adverse impacts.

Fish and Game Code section 5515 lists 10 species of ―fully protected‖ fish,

including the unarmored threespine stickleback, Gasterosteus aculeatus

williamsoni. (Id., subd. (b)(9).) Subdivision (a) of that statute provides in

pertinent part: ―(1) Except as provided in Section 2081.7 or 2835, fully protected

fish or parts thereof may not be taken or possessed at any time. . . . However, the

department may authorize the taking of those species for necessary scientific

research, including efforts to recover fully protected, threatened, or endangered

species. . . . [¶] (2) As used in this subdivision, ‘scientific research’ does not

include any actions taken as part of specified mitigation for a project, as defined

in Section 21065 of the Public Resources Code.‖ (Fish & G. Code, § 5515, subd.

(a), italics added.)8


8

Parallel provisions govern the taking or possession of other fully protected

animals. (See Fish & G. Code, §§ 3511 [fully protected birds], 4700 [fully
protected mammals], 5050 [fully protected reptiles and amphibians].) The fully
protected species laws are distinct from the more familiar endangered species laws
(id., §§ 2050–2115.5), though many species are covered by both statutory
schemes.

The listed exceptions to Fish and Game Code section 5515‘s taking

prohibition, Fish and Game Code sections 2081.7 and 2835, deal respectively with
taking resulting from an agreement on Colorado River water and taking provided
for in a ―natural community conservation plan.‖ Neither exception applies here.

29

Fish and Game Code section 86 defines ―take‖ as to ―hunt, pursue, catch,

capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.‖ (Italics added.)

This definition governs construction of the Fish and Game Code generally unless

particular provisions or context require otherwise. (Id., § 2.)

In light of the definition of take in section 86 as including an animal‘s

―pursu[it],‖ ―catch,‖ or ―capture,‖ the capture and relocation of stickleback

contemplated by mitigation measures BIO-44 and BIO-46 violates Fish and Game

Code section 5515. Although trapping and transplantation are defined as possible

conservation measures for endangered species under Fish and Game Code section

2061,9 the stickleback, as a fully protected species, is subject to the stricter

prohibitions against taking set forth in Fish and Game Code section 5515,

including an express prohibition on taking as mitigation for a project under

CEQA. (Id., subd. (a)(2).)

DFW and Newhall argue the references to ―pursue,‖ ―catch‖ and ―capture‖

in Fish and Game Code section 86 should be understood to exclude trapping and

transplantation done for conservation purposes. Because the stickleback is listed

as an endangered species (Cal. Code Regs., tit. 14, § 670.5, subd. (a)(2)(L)) as

well as a fully protected one, they argue, the prohibition on taking stickleback as a

fully protected species must be harmonized with the Endangered Species Act‘s

permission to trap and transport endangered species for protective purposes. (Fish


9

Fish and Game Code section 2061, part of the California Endangered

Species Act, defines ―conservation‖ to mean ―all methods and procedures which
are necessary to bring any endangered species or threatened species to the point at
which the measures provided pursuant to this chapter are no longer necessary,‖
including ―research, census, law enforcement, habitat acquisition, restoration and
maintenance, propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem cannot be
otherwise relieved, may include regulated taking.‖ (Italics added.)

30

& G. Code, § 2061.) In the context of the Fish and Game Code‘s solicitude for

conservation of endangered and threatened species, the prohibition on taking

should, DFW maintains, be understood as referring to ―[a]ctivities . . . that

adversely affect fish and wildlife—not . . . activities intended to move fish and

wildlife out of harm‘s way.‖

We must reject the claim DFW may authorize, as CEQA mitigation, actions

to protect a fully protected species from harm when, as here, those actions are

otherwise prohibited as takings. The Legislature has expressly precluded this

interpretation of the statutes by providing, in Fish and Game Code section 5515,

subdivision (a), that permitted taking of a fully protected species for ―scientific

research‖ may include ―efforts to recover‖ the species but that such ―scientific

research‖ does not include ―any actions taken as part of specified mitigation for a

project‖ as defined in CEQA. We cannot give effect to this provision and at the

same time hold that DFW may, as CEQA mitigation, authorize the trapping and

transplantation of stickleback—actions that plainly call for the fish‘s ―catch,‖ or

―capture‖ (Fish & G. Code, § 86). That such catch or capture is intended to

protect the stickleback from harm caused by the project‘s construction is inherent

in its adoption as CEQA mitigation and is expressly barred under section 5515.

Legislative history supports our conclusion. The language allowing taking

for recovery efforts but not for CEQA mitigation was added to Fish and Game

Code section 5515, subdivision (a) in 2003. (Stats. 2003, ch. 735, § 4,

pp. 5521-5522.) As introduced on February 20, 2003, the bill simply defined

―scientific research‖ to include recovery efforts for fully protected species. (Sen.

Bill No. 412 (2003–2004 Reg. Sess.) as introduced Feb. 20, 2013.) An Assembly

committee analysis of the bill as introduced, explained that the Natural Resources

Agency secretary had testified that the fully protected species law‘s absolute

prohibition on taking had led to certain problems: ―1) Fully protected status

31

conflicts with recovery efforts because there is no allowance for management

pursuant to a recovery effort. For example, the fully protected species statute is in

direct conflict with regional, multi-species conservation planning, such as the

Natural Community Conservation Planning Program. [¶] 2) Fully protected status

does not allow for incidental take of species due to otherwise lawful activities. [¶]

3) The law does not provide for mitigation of fully protected species. Because

mitigation is not an option, the Department‘s only recourse is to initiate legal

proceedings to address conflicts with fully protected species.‖ (Assem. Com. on

Water, Parks & Wildlife, analysis of Sen. Bill No. 412 (2003–2004 Reg. Sess.) as

introduced Feb. 20, 2003, p. 2.) The analysis continued: ―According to the author

this measure is intended to address the problem identified by Secretary Nichols in

#1 above. In order to ensure broader recovery planning efforts can take place

some take may be necessary.‖ (Ibid.)

The bill was subsequently amended in the Assembly to add the proviso that

―scientific research‖ does not include ―any actions taken as part of specified

mitigation for a project, as defined in Section 21065 of the Public Resources

Code.‖ (Sen. Bill No. 412 (2003–2004 Reg. Sess.) as amended Aug. 28, 2003.) A

new committee analysis noted that the bill now ―[e]xcludes, from ‗scientific

research,‘ any actions taken to mitigate a project under the California

Environmental Quality Act (CEQA).‖ (Assem. Com. on Appropriations, analysis

of Sen. Bill No. 412 (2003–2004 Reg. Sess.) as amended Aug. 28, 2003, pp. 1-2.)

Though not explicitly noted in the legislative history, the August 28, 2003,

amendment was consistent with the earlier report‘s observation that, of the three

problems identified by Secretary Nichols, the bill was intended to address only the

first problem: the prohibition on taking members of a fully protected species

tended to hinder management programs for the species‘ recovery. (Assem. Com.

on Water, Parks & Wildlife, analysis of Sen. Bill No. 412 (2003–2004 Reg. Sess.)

32

as introduced Feb. 20, 2003, p. 2.) It was not aimed at the separate asserted

problem of mitigation of the effects other actions would have on a fully protected

species. (Ibid.) The August 28 amendment, by reaffirming the taking prohibition

as to CEQA mitigation measures, effectuated this distinction in legislative intent.

Consistent with this history and the statutory language, we read Fish and

Game Code section 5515, subdivision (a) as allowing the trapping and

transplantation of fully protected fish species as part of a species recovery

program, but not as mitigation for a project. Mitigating the adverse effect of a

land development project on a species is not the same as undertaking positive

efforts for the species‘ recovery, a distinction recognized in the 2003 legislation by

its explicit exclusion of CEQA mitigation measures from the definition of

scientific research. The Legislature evidently believed the prohibition on taking or

possessing fully protected species should be relaxed to permit the use of wildlife

management techniques needed for species recovery, but that agencies should not

be allowed to rely on the availability of such techniques in approving or carrying

out projects that would have significant adverse effects on a fully protected

species. We therefore say nothing to preclude DFW‘s use or authorization of

trapping and transplantation to protect the stickleback from threats to its survival

and recovery, as expressly allowed under Fish and Game Code section 5515,

subdivision (a)(1); based on subdivision (a)(2) of that statute, we hold only that

such actions may not be relied on or ―specified‖ as project mitigation measures

pursuant to CEQA.

In the context of Fish and Game Code section 5515, limiting the definition

of ―taking‖ — which includes but is not limited to hunting and killing animals

(Fish and G. Code, § 86) —to actions intended to harm a fully protected animal, as

DFW urges, would also render unnecessary, or at least very puzzling, the

Legislature‘s proviso that taking is not permitted as CEQA project mitigation.

33

(Id., subd. (a)(2).) Hunting and killing animals might sometimes be necessary as a

conservation measure, for example, to obtain biological samples or to relieve a

dangerous local population pressure, but one struggles to imagine the

circumstances in which a CEQA document would propose mitigating a project‘s

adverse impacts on a fully protected species by killing or otherwise intentionally

harming members of the species. If Fish and Game Code section 5515,

subdivision (a)(1)‘s prohibition on ―tak[ing] or possess[ing]‖ a fully protected fish

referred only to intentionally harmful acts, the Legislature would not likely have

thought it necessary to specify in subdivision (a)(2) that such taking or possession

could not be proposed as a means of mitigating adverse project effects.

In addition, narrowing Fish and Game Code section 86‘s definition of

―take‖ to actions intended to harm an animal could in theory allow unauthorized

persons found pursuing and catching a protected species to assert as a complete

defense that their intent was not to harm the animal but to restore or transplant it to

a safe habitat, a result we doubt very much the Legislature intended. We are loath

to adopt a construction that would, for example, sanction an amateur

conservationist capturing and moving a southern sea otter (fully protected under

Fish & G. Code, § 4700, subd. (b)(8)) from its established habitat to a cove where

the person believes it will be safer and healthier. On this point, Justice Chin

observes that the Legislature did not intend such a result for endangered species

any more than for fully protected ones. (Dis. opn. of Chin, J., post, at p. 13.) We

agree: the broad definition of ―take‖ in Fish and Game Code section 86 ensures

that DFW can maintain legal control over actions interfering with threatened,

endangered and fully protected animals even where those actions may not have

been intended to kill or hurt the animal.

DFW urges deference to its interpretation of Fish and Game Code

provisions, an area in which it has both expertise and substantial administrative

34

responsibility. We consider an agency‘s interpretation of statutes and regulations

in light of the circumstances, giving greater weight where the interpretation

concerns technical and complex matters within the scope of the agency‘s

expertise. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19

Cal.4th 1, 12.) Even in substantive areas of the agency‘s expertise, however, our

deference to an agency‘s statutory interpretation is limited; determining statutes‘

meaning and effect is a matter ―lying within the constitutional domain of the

courts.‖ (Id. at p. 11.) That said, we acknowledge DFW‘s superior expertise in

the administration of the Fish and Game Code, and we would not lightly adopt an

interpretation of that code‘s provisions the department persuasively argued would

defeat its ability to pursue species conservation and recovery. Again, however, we

do not hold trapping and transplantation of fully protected fish species is

prohibited as part of a species recovery effort. We hold only that such actions may

not be specified as project mitigation measures in an EIR or other CEQA

document. Nothing we say precludes DFW from using its expertise and judgment

in determining, at any time, how best to protect a fully protected species from an

imminent threat to its habitat.

Justice Chin points out that Fish and Game Code section 2061, relating to

endangered species, refers separately to ―taking,‖ ―live trapping,‖ and

―transplantation,‖ implying these actions differ from one another. (Dis. opn., of

Chin, J., post, at pp. 10–11.) That this provision uses ―taking‖ in a limited sense

denoting mortality or other permanent removal from the ecosystem, a meaning far

narrower than the generally applicable definition of Fish and Game Code section

86, does not compel or even suggest the same limited meaning was intended in

Fish and Game Code section 5515, relating to fully protected fish species. Indeed,

we observe that a closely analogous statute, Fish and Game Code section 3511,

while prohibiting the taking or possession of fully protected birds, provides an

35

exception allowing permits for ―live capture and relocation‖ of such birds to

protect livestock, suggesting those actions would otherwise be within the statutory

prohibition on taking or possession, the same prohibition contained in Fish and

Game Code section 5515.

Justice Chin further argues our interpretation of Fish and Game Code

section 5515 as distinguishing between capture and transplantation performed for

conservation purposes and the same actions specified as CEQA mitigation

measures has ―little substance.‖ (Dis. opn. of Chin, J., post, at p. 9.) To the

contrary, we see a significant distinction between discussing in an EIR measures

that might be taken as part of an ongoing species recovery effort and specifying

those actions as binding mitigation measures upon which project approval is

conditioned. (See Guidelines § 15126.4, subd. (a)(2) [―Mitigation measures must

be fully enforceable through permit conditions, agreements, or other legally-

binding instruments.‖].) Decision makers and the public could well be influenced

in their evaluation of a project by the existence or nonexistence of such

enforceable mitigation measures.

C. Timeliness of Plaintiffs’ Comments on Cultural Resources and

Steelhead Smolt Impacts

The Court of Appeal held two of plaintiffs‘ challenges to the EIR,

regarding impacts on Native American cultural resources and on steelhead smolt

(juveniles), were not preserved because they were not timely brought to DFW‘s

attention in the administrative process. The issue turns on plaintiffs‘ compliance

with section 21177, which sets out the requirement that a CEQA claim be

administratively exhausted before forming the basis for a judicial challenge to the

agency‘s actions.

Section 21177, subdivision (a) provides that before an alleged ground for

noncompliance with CEQA may be brought to court it must have been ―presented

36

to the public agency orally or in writing by any person during the public comment

period provided by this division or prior to the close of the public hearing on the

project before the issuance of the notice of determination.‖ DFW held no public

hearing on final approval of the present project (the Resource Management and

Development Plan and the Spineflower Conservation Plan); the question is

therefore whether plaintiffs‘ claims regarding Native American cultural resources

and steelhead smolt were presented to DFW during the public comment period

provided by [CEQA].‖ (Ibid.)

As noted earlier, what we have referred to as the EIR was actually a

combined environmental impact statement and environmental impact report

(EIS/EIR) prepared jointly under NEPA and CEQA by the Corps and DFW, the

lead federal and state agencies, respectively. (Ante, at pp. 2–3.) CEQA requires a

public comment period on the draft EIR, but not on the final EIR; a comment

period on the final EIR before project approval is optional with the lead agency.

(§ 21091, subd. (a); Guidelines, § 15089, subd. (b).) NEPA regulations, in

contrast, allow agencies and members of the public to submit comments on a final

EIS at any time before the final agency decision, which ordinarily may not be

issued earlier than 30 days after notice of the final EIS. (40 C.F.R. §§ 1503.1(b),

1506.10(b)(2).) In compliance with its federal obligations, the Corps published a

notice of availability of the final EIS/EIR, inviting public comments during the

period June 18, 2010 through July 19, 2010, later extended through August 3,

2010. Plaintiffs raised the disputed issues regarding Native American cultural

resources and steelhead smolt impacts in comment letters during this period.

Because plaintiffs‘ comments were made during the Corps-noticed

comment period for the final EIS/EIR, rather than during the earlier CEQA-

mandated period for comments on the draft EIS/EIR, DFW and Newhall contend

37

they came too late to preserve plaintiffs‘ claims under section 21177, subdivision

(a). Under the circumstances of this case, we disagree.

In the final EIR, DFW stated that while CEQA did not require a comment

period on it, DFW would make the final EIR available to the public ―at the time

the Corps begins its required 30-day public review.‖ In its findings on project

approval, DFW noted that ―CEQA allows, but does not require, public review of a

Final EIR‖ and that the Corps‘ 45-day comment period (extended from 30 days) is

―equivalent‖ to the 45-day period required by CEQA for draft EIR‘s submitted for

review by other agencies. The findings further explained that comments on the

final EIS/EIR were given to the applicant (Newhall) for preparation of draft

responses, that DFW ―coordinated with the Corps and the applicant during the

initial discussions‖ regarding these comments, and that ―[b]ased on the input

received from both DFG [now DFW] and the Corps, the applicant and its

consultant team completed responses to the comments.‖ In sum, ―DFG has

provided input and coordinated with the Corps and the applicant with respect to

the draft responses on the Final EIS/EIR.‖

On completion of the response and revision process, the lead agencies

together prepared an addendum containing portions of the final EIS/EIR that had

been modified in response to comments on that document. The agencies included

that addendum, together with the final EIS/EIR itself and the comments and

responses to comments, in their final decision documents. This addendum

adopted a new mitigation measure for Native American cultural resources, and the

responses by DFW to plaintiffs‘ comments on the final EIR include responses on

impacts on steelhead.

We need not decide whether every federally mandated comment period on

a final combined EIS/EIR also constitutes a CEQA comment period for purposes

of section 21177, subdivision (a). In this case, the lead state agency, DFW,

38

participated fully in the post-final EIS/EIR process, helping to prepare responses

to the comments received and including those comments and responsive changes

in the version of the final EIR it certified as compliant with CEQA when

approving the project. Where the lead agency under CEQA has treated a federal

comment period on a final EIS/EIR as an opportunity to receive additional

comments on CEQA issues as well and has responded to those comments and

included the responses in its final decision document, the lead agency has

effectively treated the federal period as an optional comment period on the final

EIR under Guidelines section 15089, subdivision (b). Such an optional comment

period is ―provided by‖ CEQA for purposes of section 21177. (See

Environmental Protection Information Center v. California Dept. of Forestry &

Fire Protection, supra, 44 Cal.4th at p. 484 [lead federal agency‘s notice of

availability of final EIS/EIR, which also invited comments to be sent to lead state

agency, reopened public comment period for CEQA purposes]; Galante Vineyards

v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109,

1120 [―the phrase ‗during the public comment period provided by this division,‘

. . . includes optional comment periods.‖)

The purposes of requiring exhaustion of administrative remedies, as section

21177 does, are to lighten the judicial burden by providing a remedy at the

administrative level and, where a judicial remedy is nonetheless sought,

facilitating a complete record that draws on the administrative agency‘s expertise

and has already been sifted for relevant evidence. (Tomlinson v. County of

Alameda (2012) 54 Cal.4th 281, 291.) In this case, where DFW independently

reviewed plaintiffs‘ comments on the final EIS/EIR, contributed its expertise to

the drafting of responses and revisions based on those comments, and included

those responses and revisions in the final version of the EIR it certified and relied

on in making its approval decision, the statute‘s purpose has been served. We

39

conclude the disputed comments were timely under section 21177, subdivision (a)

because they were submitted during a public comment period provided by CEQA.

The Court of Appeal, after holding plaintiffs had not administratively

exhausted their claims on these topics, went on to reject those claims on the

merits, finding the EIR‘s determinations to be supported by substantial evidence.

DFW and Newhall argue the Court of Appeal‘s judgment may be upheld on this

alternative ground, whereas plaintiffs insist the merits must be revisited because

the Court of Appeal‘s disregard for information presented in the comments it

deemed untimely tainted its evaluation of the merits. We leave for the appellate

court the question of whether its determinations on the merits require

reexamination.

III. CONCLUSION

We conclude, contrary to the holdings of the Court of Appeal, that DFW

abused its discretion by making the determination, without the support of

substantial evidence, that the project‘s greenhouse gas emissions would have no

significant impact, and in imposing biological resource mitigation measures that

call for the trapping and transplantation of a fully protected fish species. We

further conclude the Court of Appeal erred in holding plaintiffs failed to preserve

their claims regarding Native American cultural resource and steelhead smolt

impacts. On remand, the Court of Appeal shall decide whether, in light of our

exhaustion holding, the Native American cultural resource and steelhead smolt

claims warrant reexamination on the merits. The Court of Appeal shall further

decide, or remand for the superior court to decide, the parameters of the writ of

mandate to be issued. (See § 21168.9.)

Justice Chin suggests that by reversing and remanding in this case, we

inordinately delay the construction of Newhall Ranch and push its thousands of

potential residents into housing that ―will undoubtedly be far less green than this

40

project promises to be.‖ (Dis. opn. of Chin, J., post, at p. 15.) It is not the courts‘

role, of course, to decide where in the state new housing should be built, and our

review of a lower court‘s CEQA ruling does not turn on our independent

assessment of the project‘s environmental merits. Even if Newhall Ranch offered

the environmentally best means of housing this part of California‘s growing

population, CEQA‘s requirements for informing the public and decision makers of

adverse impacts, and for imposition of valid, feasible mitigation measures, would

still need to be enforced.

Nor is Justice Chin‘s assumption regarding the project‘s superlative

environmental profile necessarily supported by the record. As plaintiffs point out,

the hypothetical business-as-usual model used in the EIR to assess greenhouse gas

emissions counterfactually assumes the continuation of building and vehicle

efficiency standards and an electricity generation source mixture that have, in

actuality, been superseded by stricter standards and practices. The EIR‘s

calculation of a 31 percent reduction in comparison to this model therefore does

not mean Newhall Ranch would emit 31 percent fewer greenhouse gasses than

other mixed use projects that could actually be built under current standards.

Finally, one should not assume a sizeable new housing development planned for a

site relatively far from major urban centers, to be built largely on undeveloped

land with habitat for several sensitive species, will have comparatively minor

impacts either on greenhouse gas emissions or on fish and wildlife. The dissent‘s

claim that today‘s decision threatens the ―subver[sion]‖ of CEQA into a tool for

delay of a uniquely meritorious project (dis. opn. of Chin, J., post, at p. 13) is

neither warranted by the facts nor consonant with the scope of judicial review

under CEQA.

41



IV. DISPOSITION

The judgment of the Court of Appeal is reversed and the matter is

remanded to that court for further proceedings consistent with our opinion.













WERDEGAR, J.

WE CONCUR:


CANTIL-SAKAUYE, C. J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.


42









CONCURRING AND DISSENTING OPINION BY CORRIGAN, J.

I agree with most of the majority opinion‘s holdings. Specifically, I agree

that mitigation measures described in the environmental impact report (EIR) for

the unarmored threespine stickleback would constitute a taking prohibited by the

Fish and Game Code. I also agree that the methodology used to assess the

significance of greenhouse gas emissions was consistent with the California

Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). The

Department of Fish and Wildlife (DFW) did not violate CEQA by using the

statewide emissions reduction goal in Assembly Bill No. 32 (2005-2006 Reg.

Sess.)1 as a significance criterion or by comparing Newhall Ranch‘s projected

emissions to a business-as-usual model instead of to a baseline of existing

emissions. (See maj. opn., ante, at pp. 17, 19.) Having determined the

methodology was permissible, however, the majority finds insufficient evidence

supporting DFW‘s application of it. Here our views diverge. Because the level of

detail the majority demands from this EIR is contrary to both our deferential

standard of review and our approval of the methodology used to assess greenhouse

gas significance, I respectfully dissent from that portion of its opinion.

A.

Correlation with Statewide Goal

All members of the court agree the developers could use consistency with

Assembly Bill 32 as a threshold for determining the significance of greenhouse

gas emissions under CEQA. Assembly Bill 32 set a goal of reducing statewide


1

Statutes 2006, chapter 488, page 3419 (Assembly Bill 32).

emissions 29 percent from business as usual. Under the methodology we approve

today, if expected emissions from the project are ―consistent‖ with this statewide

goal, they are not significant for purposes of CEQA. Experts project that Newhall

Ranch will achieve a 31 percent reduction from business as usual, two percentage

points better than Assembly Bill 32‘s goal. Nevertheless, the majority concludes

this projection is insufficient to support a finding of consistency with Assembly

Bill 32 because the EIR does not explain how project-level reductions correlate

with statewide reductions.

The majority‘s analysis implicitly assumes project-level reductions in

greenhouse gas emissions must be greater than the reductions California is seeking

to achieve statewide. It reasons that, because new developments can incorporate

the most advanced technology, they may presumably achieve greater efficiency

than is possible through retrofitting existing buildings. Thus, considering all

greenhouse gas sources across the state, regulators may expect greater emissions

reductions from new developments. (See maj. opn., ante, at p. 20.) This argument

may be reasonable in the abstract, but in my view it is too amorphous a ground for

invalidating a carefully prepared and thorough EIR. Although lead agencies must

consider whether a project‘s impacts are ―cumulatively considerable‖ in light of

existing and future projects (Pub. Resources Code, § 21083, subd. (b)(2)), no

CEQA provision places the responsibility on developers to mitigate environmental

impacts caused entirely by other projects. Moreover, the majority does not

identify just how much better than the statewide goal new projects must be. The

―Scoping Plan‖ for Assembly Bill 32 did not suggest, let alone mandate, specific

efficiency levels for new development projects. Nor does the majority opinion

indicate what specific level of reduction would be sufficient for Newhall Ranch to

demonstrate consistency with Assembly Bill 32. It is not clear why a 31 percent

reduction, to be achieved by the one of the largest development projects in the

state‘s history, is necessarily inadequate.

2



The majority‘s substantial evidence conclusion would also seem to render

our approval of DFW‘s methodology illusory. Although the majority nominally

approves of determining CEQA significance by measuring a project‘s

improvements from business as usual against Assembly Bill 32‘s statewide goal, it

faults the EIR here for failing to demonstrate ―a quantitative equivalence between

the Scoping Plan‘s statewide comparison and the EIR‘s own project-level

comparison.‖ (Maj. opn., ante, at p. 23.) But we have no assurance it is even

possible to calculate how a statewide goal corresponds to specific, quantitative

efficiency measures for individual projects. The majority opinion discusses

several approaches for assessing the significance of greenhouse gas emissions.

However, only one option addresses the methodology actually used by DFW and

approved in this case. DFW assessed significance by comparing the project‘s

reduction of emissions from business as usual to Assembly Bill 32‘s goal for such

reductions statewide. According to the majority, the only way it ―may be

possible‖ to obtain a quantitative correlation between these business-as-usual

models is if ―an examination of the data behind the Scoping Plan‘s business-as-

usual model‖ allowed the lead agency ―to determine what level of reduction from

business as usual a new land use development at the proposed location must

contribute in order to comply with statewide goals.‖ (Maj. opn., ante, at p. 25.)

The speculation that underlying data might yield a satisfactory answer gives little

practical aid to the agencies that will have to implement our decision on remand.

As Justice Chin observes, many experts from many different agencies have

scrutinized this project. (Dis. opn. of Chin, J., post, at pp. 4-5.) Despite their

efforts, there is no scientific consensus as to how large a reduction at the project

level is needed to establish consistency with Assembly Bill 32‘s statewide goal.

Under these circumstances, the lead agency had discretion to conclude that a

project-level reduction exceeding the statewide goal by two percentage points was

consistent with Assembly Bill 32 and demonstrated that greenhouse gas emissions

would not be significant for purposes of CEQA. (See Save Our Peninsula

3

Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99,

120.)

The majority‘s contrary conclusion is inconsistent with our deferential

standard of review. Under substantial evidence review, ― ‗the reviewing court

must resolve reasonable doubts in favor of the administrative finding and

decision.‘ ‖ (Laurel Heights Improvement Assn. v. Regents of University of

California (1988) 47 Cal.3d 376, 393, italics added.) Our ―task is not to weigh

conflicting evidence and determine who has the better argument when the dispute

is whether adverse effects have been mitigated or could be better mitigated. We

have neither the resources nor scientific expertise to engage in such analysis, even

if the statutorily prescribed standard of review permitted us to do so.‖ (Ibid.)

Here, the lead agency determined the greenhouse gas emissions from Newhall

Ranch would not be significant for purposes of CEQA based on a methodology

this court now validates. On substantial evidence review, the burden was on

parties attacking the EIR to show that this determination was insupportable.

Specifically, they had to demonstrate that, despite being slightly better than

Assembly Bill 32‘s statewide goal, the project‘s 31 percent reduction in

greenhouse gas emissions is too low to be ―consistent‖ with Assembly Bill 32.

They have not done so.

B.

Population Density Comparison

The majority opinion‘s second reason for rejecting the EIR‘s conclusion

about the significance of greenhouse gas emissions is both hyper technical and

insufficiently deferential to the lead agency‘s expertise.

The EIR‘s business-as-usual model assumes a population density equal to

that currently existing at ―full build out‖ in Santa Clarita Valley, where the project

is located. Because the project is designed to have a higher density than this

existing development, it is expected to significantly reduce greenhouse gas

emissions from business as usual. The majority opinion criticizes the EIR for

failing to correlate this comparison with the business-as-usual comparison used in

4

the Scoping Plan. It notes that, ―[t]o the extent‖ the Scoping Plan‘s business-as-

usual model is based on areas with higher population densities than Santa Clarita

Valley, the EIR‘s comparison of emissions reductions from those demanded in the

Scoping Plan would be misleading. (Maj. opn., ante, at p. 22.)

It is not immediately obvious that there is anything wrong with comparing

the Newhall Ranch project with development in the surrounding area. The

majority‘s criticism rests on assumptions about the Scoping Plan‘s business-as-

usual model, but technical details about that model are not in the record. Although

the majority opinion views this shortcoming as a lack of substantial evidence, I am

not convinced CEQA imposed a burden on the developer or lead agency to

research and document a one-to-one correspondence with all details of the

Scoping Plan‘s model. Again, the level of evidentiary support the majority

demands is inconsistent with our deferential standard of review.

C.

Conclusion

I share Justice Chin‘s concerns about delay and the possibility that CEQA

compliance will become a moving target, impossible to satisfy. Here, the majority

nominally approves DFW‘s solution to a novel and difficult problem: how to

measure the significance of a project‘s greenhouse gas emissions. Yet, after

approving the methodology for assessing significance, the majority undermines

this outcome by challenging technical details that are inherent in that

methodology. Having approved of DFW‘s methodology, I would defer to its

conclusion that the Newhall Ranch project‘s emissions will fall below CEQA‘s

threshold of significance.

CORRIGAN, J.

5












DISSENTING OPINION BY CHIN, J.




I respectfully dissent. I would affirm the judgment of the Court of Appeal.

Its opinion, authored by Presiding Justice Turner, and joined by Justices Mosk and

Kriegler, contains an extraordinarily thorough and careful review of the issues and

reaches the correct result.

The majority decides three issues under the California Environmental

Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.).

Regarding the first issue, I agree with the majority that the lead agencies —

the California Department of Fish and Wildlife (DFW) and the United States

Army Corps of Engineers — used a proper methodology in the environmental

impact report (EIR) to determine whether the development would significantly

impact the environment by its discharge of greenhouse gases. As the majority

notes, CEQA is not a population control measure. (Maj. opn., ante, at p. 12.) If

the development is not built, the 58,000 or so residents the planned community is

intended to house, along with the necessary infrastructure and the proposed

commercial enterprises, will be someplace else. Accordingly, the majority

correctly rejects the project opponents‘ argument that the only permissible method

is to compare the development with no development. It makes eminent sense, and

comes within the lead agencies‘ discretion, to compare the proposed

development‘s greenhouse gas emissions with the emissions projected in a

business-as-usual model to measure the emission reduction needed to comply with

legally established goals for greenhouse gas reductions. I disagree, however, with

the majority‘s conclusion that the EIR does not adequately explain why a

projected 31 percent reduction in greenhouse gas emissions is consistent with

legally mandated reduction goals.

Regarding the second issue, I disagree with the majority‘s holding that the

proposal to move the unarmored threespine stickleback fish out of harm‘s way is a

taking under the Fish and Game Code, and that, therefore, the EIR may not call the

program a mitigation measure.

Regarding the third issue, compliance with the time requirements for

making objections under CEQA is critically important so that litigation over an

EIR does not become a never-ending battle of attrition with ever-changing targets

for project opponents to aim for. However, under the very specific circumstances

of this case, including the fact that the EIR fully addresses the objections, I agree

with the majority that the Court of Appeal should not have found two of the

objections forfeited. But because the Court of Appeal also rejected the arguments

on the merits, convincingly showing that the EIR adequately considered the

objections, the error provides no basis to reverse the judgment.

A. Preliminary Comments

―The Legislature has made clear that an EIR is ‗an informational document‘

and that ‗[t]he purpose of an environmental impact report is to provide public

agencies and the public in general with detailed information about the effect which

a proposed project is likely to have on the environment; to list ways in which the

significant effects of such a project might be minimized; and to indicate

alternatives to such a project.‘ [Citations.]‖ (Laurel Heights Improvement Assn. v.

2

Regents of University of California (1988) 47 Cal.3d 376, 391.) ―The EIR is also

intended ‗to demonstrate to an apprehensive citizenry that the agency has, in fact,

analyzed and considered the ecological implications of its action.‘ ‖ (Id. at p. 392,

quoting No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 86.)

The EIR in this case is one of the longest ever prepared under CEQA —

which is appropriate, given that the project is one of the largest ever proposed in

California. It was prepared over a period of at least five years, with ample

opportunity for public input. The EIR does just what it is supposed to do. It has

fully informed those who are entrusted to make the decisions, as well as the

general public, of the project‘s environmental impacts. Now it is time finally to let

the decision makers make decisions.

As the majority summarizes, ―[t]o be developed over about 20 years on

almost 12,000 acres along the Santa Clara River west of the City of Santa Clarita,

the proposed Newhall Ranch would consist of up to 20,885 dwelling units housing

nearly 58,000 residents as well as commercial and business uses, schools, golf

courses, parks and other community facilities.‖ (Maj. opn., ante, at p. 3.)

After much community and regulatory input, the project also promises to be

very ―green,‖ with large reductions in the amount of greenhouse gas emissions to

be expected. The developer, the Newhall Land and Farming Company,

summarizes that, as documented in the EIR, the proposed development will reduce

greenhouse gas emissions ―by providing, for example, improved insulation and

ducting, low E glass, high efficiency heating and air conditioning, and radiant

barriers in attic spaces.‖ Additionally, it will rely on various other design features

to reduce the emissions, including:

―(a) close proximity of homes to jobs and services;

―(b) public transit;

―(c) trails, paseos, and pathways for walking and biking;

3

―(d) tree planting and native and drought-tolerant landscaping;

―(e) energy efficient lighting;

―(f) use of solar water heating for all Newhall Ranch recreational center

pools;

―(g) silver certification for the design and construction of Newhall Ranch

fire stations and public library consistent with the ‗Leadership in Energy and

Environmental Design‘ . . . standards;

―(h) comprehensive recycling;

―(i) park-and-ride lot, bus stops, transit station, bus transfer station; and

―(j) reservation of right-of-way for a Metrolink light rail line to facilitate

residents relying less on vehicle travel.‖

Neither the majority nor the project opponents dispute this summary.

The Newhall Ranch project has been thoroughly reviewed over a period of

many years, resulting in an extraordinarily thorough EIR. (The portion concerning

greenhouse gas emissions alone is hundreds of pages long.) After earlier litigation

delayed the proposed project for several years, work on the current EIR began

around 2005. After some five years of work, public comment, and revisions, the

final EIR was certified in 2010. As the amicus curiae brief supporting the project

filed by former Governors George Deukmejian, Pete Wilson, and Gray Davis

notes, at different times and during different steps in the review process, eight

different governmental agencies, representing every level of government, federal,

state, and local, have studied, imposed conditions on, and, ultimately, approved

the project: (1) the DFW, (2) the United States Army Corps of Engineers, (3) the

United States Environmental Protection Agency, (4) the United States Fish and

Wildlife Service, (5) the Los Angeles Regional Water Quality Control Board, (6)

the Los Angeles County Local Agency Formation Commission, (7) the Los

4

Angeles County Board of Supervisors, and (8) the Los Angeles County Regional

Planning Commission.

Each of these agencies has far greater expertise than this court in judging

the merits of the proposal and determining what mitigation measures are

appropriate and what conditions to impose. They also are responsible for planning

and managing California‘s inevitable future population growth. Now project

opponents have turned to the courts in their final effort to invalidate the 2010 EIR

and derail the project, culminating in this action. This court should be cautious

about overturning the considered judgment of these eight agencies. California‘s

environmental laws are not intended to prevent development that is needed to

accommodate the state‘s growing population. Instead they are designed to

encourage planned development by ensuring that decisions regarding how to

accommodate the state‘s growing population while protecting the environment are

informed. The instant project is very thoroughly planned, and the detailed and

careful EIR has fully informed the decision makers.

The majority finds two flaws in the EIR, which I discuss in order.

B. Greenhouse Gas Emissions

California has mandated substantial future reductions in greenhouse gas

emissions. The mandate is critically important to our environment and must be

treated very seriously. The EIR and the reviewing agencies had to consider very

carefully the project‘s emission impact. And they did just that. As the EIR

explains, the project, with the proposed mitigation measures, will result in a 31

percent reduction in greenhouse gas emissions from a business-as-usual model.

The EIR fully explains this calculation. Neither the majority nor the project

opponents disputes it. Indeed, the Court of Appeal opinion explains that evidence

exists that this figure is actually ―conservative.‖

5

The EIR also compares the 31 percent reduction to the reduction goal the

Legislature established under the California Global Warming Solutions Act of

2006, commonly known as Assembly Bill No. 32 (2005-2006 Reg. Sess.)

(Assembly Bill 32). As the majority explains, the EIR‘s method was modeled on

the California Air Resources Board‘s determination that the reduction goal under

Assembly Bill 32 is 29 percent from business as usual. (Maj. opn., ante, at p. 9.)

It appears the lead agencies could have, in their discretion, used an even lower

goal as its measurement. According to an analysis of the scoping plan conducted

by the Bay Area Air Quality Management District (BAAQMD), ― ‗land use-

driven‘ sectors‖ will be expected to demonstrate only a 26.2 percent reduction in

greenhouse gas emissions. (BAAQMD, Cal.) Environmental Quality Act

Guidelines Update: Proposed Thresholds of Significance (May 3, 2010) pp. 12-

13, 15.) But because the EIR used the higher goal of a 29 percent reduction, I will

also.

Three recent Court of Appeal opinions have made clear that comparing the

proposed reduction with Assembly Bill 32‘s reduction goal is a proper

methodology within the agencies‘ discretion. (Friends of Oroville v. City of

Oroville (2013) 219 Cal.App.4th 832, 841 [―The City properly adopted Assembly

Bill 32‘s reduction targets for [greenhouse gas] emissions as the threshold-of-

significance standard in determining whether the Project‘s [greenhouse gas]

emissions constituted a significant environmental impact.‖]; North Coast Rivers

Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th

614, 652 [―[T]he EIR concluded the Project would not interfere with achieving a

15 percent reduction in countywide [greenhouse gas] emissions, compared to 1990

levels, by 2020. This analysis more than satisfied the requirements of CEQA.‖];

Citizens for Responsible Equitable Environmental Development v. City of Chula

Vista (2011) 197 Cal.App.4th 327, 336 [―Here, the City properly exercised its

6

discretion to utilize compliance with Assembly Bill No. 32 (2005-2006 Reg. Sess.)

as the threshold.‖]; see also id. at p. 337 [a reduction of greenhouse gas emissions

4 percent greater than Assem. Bill 32‘s goal was sufficient].)

Here, the reduction was 2 percent greater than the established goal, rather

than the 4 percent found adequate in Citizens for Responsible Equitable

Environmental Development v. City of Chula Vista, supra, 197 Cal.App.4th 327.

But the holding in that case did not turn on the exact amount the reduction

exceeded the goal. The agencies did not abuse their discretion in adopting a

methodology that three Courts of Appeal have approved.

Contrary to this authority, the majority holds that the EIR does not

adequately explain how a 31 percent reduction in greenhouse gas emissions is

consistent with Assembly Bill 32‘s goal of a 29 percent reduction. Citing a letter

from the California Attorney General‘s Office, it suggests that a new development

should exceed that goal by some amount — presumably an amount greater than 2

percent. (Maj. opn., ante, at p. 20.) For example, one expert group has proposed,

as one possibility, a criterion of 50 percent reduction for new developments. (Cal.

Air Pollution Control Officers Assn., CEQA & Climate Change: Evaluating and

Addressing Greenhouse Gas Emissions from Projects Subject to the Cal.

Environmental Quality Act (Jan. 2008) p. 33.) A 50 percent reduction would be

impressive and certainly would be wonderful. But what might be ideal does not

have the force of law. If the Legislature had enacted a statute requiring new

developments to exceed the goal by a specified amount — or perhaps if an

authoritative governmental agency charged with implementing the legislation had

so specified — then we should enforce it. But the Attorney General‘s letter and

the project opponents‘ arguments are not legally binding.

Indeed, recognizing that a 50 percent reduction is not legally required, the

same expert group suggested other possibilities. As a recent law review article

7

explains, that group also stated that a possible approach would be to conclude that

―an individual project that has greenhouse gas emissions that are 28-33 % less

than such a project would otherwise have under a [business-as-usual] scenario

could be considered less than significant for purposes of CEQA.‖ (Crockett,

Addressing the Significance of Greenhouse Gas Emissions under CEQA:

California’s Search for Regulatory Certainty in an Uncertain World (2011) 4

Golden Gate U. Envtl. L.J. 203, 215-216.) Additionally, as Justice Corrigan

explains, the majority‘s criticism of the EIR for failing to correlate its population

density comparison with the business-as-usual comparison used in the Scoping

Plan is unduly hyper technical and inconsistent with our deferential substantial

evidence review. (Con. & dis. opn., ante, at pp. 4-5, citing Maj. opn., ante, at p.

22.) Given the absence of any expert or regulatory consensus regarding the best

methodology, the lead agencies acted within their discretion in adopting their

chosen methodology. The EIR fully explains that the proposed reduction in

greenhouse gas emissions is greater than AB 29‘s goal. No legal basis exists to

determine that this is insufficient. Accordingly, the agencies acted within their

discretion in finding that exceeding the targeted reduction would not significantly

interfere with meeting the targeted reduction.

I would also find no prejudice. Only so much can be expected of an EIR.

The EIR informed the decision makers and general public exactly what the

project‘s likely impacts would be. More is not required. (See Environmental

Protection Information Center v. California Dept. of Forestry & Fire Protection

(2008) 44 Cal.4th 459, 485.)

C. The Unarmored Threespine Stickleback

To the extent the proposed project threatens harm to the unarmored

threespine stickleback fish (stickleback), the EIR describes mitigation measures

8

that will be taken to protect it. Briefly stated, the project managers have

developed a program whereby United States Fish and Wildlife Service employees

and their agents (and only those personnel) will move the stickleback out of

harm‘s way as necessary to protect them. No one seems to challenge this

program‘s efficacy in protecting and preserving the species. But the majority

interprets the Fish and Game Code as prohibiting the EIR from calling the

program a mitigation measure.

I note, first, that the majority‘s holding has little substance. The majority

makes clear that the United States Fish and Wildlife Service is allowed to protect

the stickleback in this way. (Maj. opn., ante, at pp. 28, 33-34.) The majority is

clearly correct in this regard. The Fish and Game Code does not prohibit this

federal agency from protecting the stickleback. (See Biological Diversity v. U.S.

Fish, Wildlife (9th Cir. 2006) 450 F.3d 930, 941-943.) All that the majority

prohibits is referring to the program as a binding mitigation measure in the EIR.

Because the EIR‘s purpose is to provide ― ‗detailed information about the effect

which a proposed project is likely to have on the environment‘ ‖ (Laurel Heights

Improvement Assn. v. Regents of University of California, supra, 47 Cal.4th at p.

391, italics added), even the majority permits the EIR to discuss the program as a

way to avoid harm to the stickleback. All the majority presumably requires the

EIR‘s drafters to do is to use a phrase such as ―avoid harm‖ or ―protect the

species,‖ and not use a word like ―mitigate.‖

The majority is also wrong as a matter of statutory interpretation. The

stickleback is officially designated as both an ―endangered species‖ and a ―fully

protected fish.‖ (Fish & G. Code, §§ 2062, 5515, subd. (b)(9); all further statutory

citations are to this code.) ―The Legislature . . . finds and declares that it is the

policy of this state to conserve, protect, restore, and enhance any endangered

species or any threatened species and its habitat and that it is the intent of the

9

Legislature, consistent with conserving the species, to acquire lands for habitat for

these species.‖ (§ 2052.) Section 2061 defines ― ‗[c]onserve‘ ‖ as using methods

necessary to make the species no longer endangered, including ―live trapping, and

transplantation, and, in the extraordinary case where population pressures within a

given ecosystem cannot be otherwise relieved, may include regulated taking.‖

(Italics added.) Between them, sections 2052 and 2061 permit, and indeed

encourage, the program here, whereby the federal agency moves an endangered

species like the stickleback out of harm‘s way.

But the majority concludes that a provision concerning fully protected fish

prohibits as a mitigating measure what the statutes concerning endangered species

encourage. ―[F]ully protected fish or parts thereof may not be taken or possessed

at any time.‖ (§ 5515, subd. (a)(1).) The section excepts takings ―for necessary

scientific research,‖ but the exception does not include actions taken to mitigate a

project. (Id., subd. (a)(1), (2).) The question before us, therefore, is whether

moving the stickleback out of harm‘s way would be a prohibited taking. The

majority concludes it is. The DFW and I disagree.

― ‗Take‘ means hunt, pursue, catch, capture, or kill, or attempt to hunt,

pursue, catch, capture, or kill.‖ (§ 86.) Viewed in isolation, it is plausible (but far

from compelled) to conclude that the program at issues does involve a taking

within this definition. However, ―[w]e do not examine [statutory] language in

isolation, but in the context of the statutory framework as a whole in order to

determine its scope and purpose and to harmonize the various parts of the

enactment.‖ (Coalition of Concerned Communities, Inc. v. City of Los Angeles

(2004) 34 Cal.4th 733, 737.)

Section 86‘s definition of ―take‖ applies to the entire Fish and Game Code,

including section 2061, and not just to section 5515. (See § 2.) Section 2061

refers separately to ―live trapping,‖ ―transplantation,‖ and ―taking,‖ which is

10

permitted in an extraordinary case. These separate references, and the special rule

for taking, necessarily imply that ―taking‖ is different than ―live trapping‖ and

―transplantation.‖ The majority does not explain what the difference is between

―taking‖ and ―live trapping‖ or ―transplantation,‖ or why the program constitutes

taking rather than live trapping or transplantation, as the DFW argues.

Viewed in light of section 2061, the DFW is correct that the planned

movement is not a taking within the meaning of the code. Any reasonable

interpretation of that word is that it has some connotation of harm to the species,

although not necessarily mortal harm. Obtaining possession of the fish just long

enough to move them from a place of danger to a place of safety, then letting them

go, is not a taking; it is live trapping and transplantation.

The statutory scheme provides other clues that this is the correct

interpretation. Section 2061 permits ―regulated taking‖ as a method to conserve

an endangered species in ―the extraordinary case where population pressures

within a given ecosystem cannot be otherwise relieved.‖ What this means is that

if excessive population is itself threatening the species — perhaps due to

insufficient resources to sustain the population — and the population excess

cannot otherwise be relieved, the agency may employ regulated taking. This kind

of taking must refer to a permanent taking that will reduce the population pressure,

not merely a temporary movement of the fish from a place of danger to a place of

safety. Section 5515 precludes such a regulated taking when used merely to

mitigate the effects of a project, for example, when the project itself would reduce

the resources and thus would itself cause the population pressure. All this would

make sense. Contrary to the majority‘s argument, my interpretation would give

full effect to section 5515, subdivision (a). (See maj. opn., ante, at p. 30.) But

nothing in section 5515 precludes the DFW‘s interpretation of the proposed

program as live trapping and transplantation, rather than a taking.

11

This interpretation harmonizes the entire statutory scheme, and does not

make the scheme contain contradictory mandates — one mandate for endangered

species and another mandate for fully protected fish. It is the interpretation the

DFW — the agency charged with administering the law regarding endangered and

fully protected species — has given it. We are not bound by the agency‘s

interpretation if it is obviously wrong, but we should at least give it deference.

The DFW is far more expert in conserving endangered and fully protected fish

than we are. It is not obviously wrong for that agency to view the program as live

trapping and transplantation rather than taking.

The majority cites section 3511 as somehow suggesting that ―live capture

and relocation‖ (a concept essentially the same as the live trapping and

transplantation cited in § 2061) is either the same as taking or a subset of taking.

(Maj. opn., ante, at pp. 35-36.) The section contains no such suggestion. It states

that ―fully protected birds or parts thereof may not be taken or possessed at any

time,‖ but the DFW ―may authorize the live capture and relocation of those

species pursuant to a permit for the protection of livestock.‖ This language

prohibits taking but permits, in some circumstances, live capture and relocation,

thus suggesting that the concepts are separate, not the same.

The majority‘s reference to ―hunting and killing animals‖ (maj. opn., ante,

at pp. 33-34) is puzzling. Moving an endangered and fully protected species from

a place of danger to a place of safety bears no resemblance to hunting and killing.

Hunting and killing can readily be viewed as a taking, not live trapping and

transplantation. But doing so does not compel the conclusion that moving a

species to a place of safety is also a taking rather than live trapping and

transplantation.

The majority invokes the specter of self-help by self-appointed amateur

conservationists. (Maj. opn., ante, at p. 34.) Interpreting the program to be a

12

permitted live trapping and transplantation rather than a prohibited taking has

nothing to do with self-help. The DFW and the United States Fish and Wildlife

Service are not self-appointed experts, but governmental agencies mandated to

protect and conserve endangered and protected species. I agree with the majority

that the Legislature did not intend that ―unauthorized persons found pursuing and

catching a protected species seemingly could assert as a complete defense that

they had no intent to harm the animal and would have restored or transplanted it to

a safe habitat.‖ (Ibid.) The Fish and Game Code does not allow unauthorized

persons to so act. Indeed, because the special rule concerning taking applies to

fully protected fish only and not more generally to endangered species, the

majority‘s analysis would mean that ―unauthorized persons found pursuing and

catching‖ an endangered species ―seemingly could assert as a complete defense

that they had no intent to harm the animal and would have restored or transplanted

it to a safe habitat.‖ The Legislature cannot have intended that either.

In short, to protect the stickleback as needed, the United States Fish and

Wildlife Service can implement the program of the live trapping and

transplantation of the fish from a place of danger to a place of safety. And, in

describing the program, the EIR can call it a ―mitigation measure‖ without

violating the Fish and Game Code.

D. Conclusion

We have ―caution[ed] that rules regulating the protection of the

environment must not be subverted into an instrument for the oppression and delay

of social, economic, or recreational development and advancement.‖ (Citizens of

Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 576.) Today‘s

opinion threatens this very subversion.

13

The Newhall Ranch project has been very long in planning, approval, and

litigation. The current EIR was finalized some five years ago. The two flaws the

majority has found in the EIR can easily be fixed. (See maj. opn., ante, at pp. 23-

27 [describing how the supposed error in finding that a 31 percent reduction in

greenhouse gas emissions would not significantly interfere with meeting a targeted

reduction of 29 percent can be fixed].) As noted, regarding the program to protect

the stickleback, the lead agencies seemingly need only delete from the EIR any

terms that sound like ―mitigation‖ and use instead some other term such as

―avoiding harm‖ or ―protecting the species.‖ So, in one sense, one might ask what

is the harm in sending the case back to fix these flaws.

The harm is in delay. This litigation has already delayed implementing the

EIR some five years or so. Now this court is sending the case back to the Court of

Appeal. Among other things, it is permitting the project opponents to relitigate

some already decided issues even though the Court of Appeal fully rejected the

arguments the first time. It also leaves it to the Court of Appeal, or perhaps to the

superior court on a further remand, to decide the exact parameters of the writ of

mandate to be issued. (Maj. opn., ante, at p. 40.) At some point, this appeal will

end, and the writ will issue. At some point after that, the EIR will have to be

revised, with the necessary period of public comment, etc. (although presumably

limited to the two flaws the majority has found). Then it is predictable that yet

more litigation will follow the finalization of the new EIR. Given the glacial pace

of litigation, this will easily take years.

And it gets worse. The majority strongly hints that the time will come

when compliance with goals established for the year 2020 will not be sufficient,

and the proposed project will have to meet some different goals established for the

future beyond 2020. (Maj. opn., ante, at pp. 16-17.) By the time this litigation

ends, and the new EIR is prepared and finalized, we will be much closer to 2020

14

than when the current EIR was finalized in 2010. Delay can become its own

reward for project opponents. Delay the project long enough and it has to meet

new targets, and then perhaps new targets after that. All this is a recipe for

paralysis. But CEQA is not meant to cause paralysis. Carefully planned green

communities are needed to accommodate California‘s growing population. CEQA

ensures the informed planning, but it does not prohibit the planned communities.

CEQA does nothing to control California‘s population growth. The 58,000

or so people the proposed project is intended to accommodate will not just go

away. They will be living and working somewhere. And that somewhere will

undoubtedly be far less green than this project promises to be. The longer the

project is delayed, the longer the workplaces and residences of 58,000 people will

be emitting business-as-usual amounts of greenhouse gases, rather than the greatly

reduced amount projected under this project. Today‘s opinion will delay the

project even longer.

I would affirm the judgment of the Court of Appeal and put an end to this

litigation.

CHIN, J.

15

See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Center for Biological Diversity v. Department of Fish & Wildlife
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 224 Cal.App.4th 1105
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S217763
Date Filed: November 30, 2015
__________________________________________________________________________________

Court:
Superior
County: Los Angeles
Judge: Ann I. Jones

__________________________________________________________________________________

Counsel:

Wendy L. Bogdan, Thomas R. Gibson, John H. Mattox; Thomas Law Group, Tina A. Thomas, Ashle T.
Crocker, Amy R. Higuera and Meghan M. Dunnagan for Defendant and Appellant.

Latham & Watkins, Christopher W. Garrett and Taiga Takahashi for California Chamber of Commerce as
Amicus Curiae on behalf of Defendant and Appellant.

Holland & Knight, Jennifer L. Hernandez and Charles L. Coleman III for San Joaquin Valley Air Pollution
Control District and County of Kern as Amici Curiae on behalf of Defendant and Appellant.

Kathrine Pittard for Sacramento Metropolitan Air Quality Management District as Amicus Curiae on behalf
of Defendant and Appellant.

Nossaman, Robert D. Thornton, Stephanie N. Clark; Best Best & Krieger, Steven C. DeBaun, Charity B.
Schiller; Stefanie D. Morris; Marcia Scully, Robert C. Horton; Mark J. Saladino, County Counsel (Los
Angeles), Charles M. Safer, Assistant County Counsel, Ronald W. Stamm, Principal Deputy County
Counsel; and Amelia T. Minaberrigarai for Foothill/Eastern Transportation Corridor Agency, San Joaquin
Hills Transportation Corridor Agency, Kern County Water Agency, Metropolitan Water District of
Southern California, Riverside County Transportation Commission, Los Angeles County Metropolitan
Transportation Authority and State Water Contractors as Amici Curiae on behalf of Defendant and
Appellant.

Cox, Castle & Nicholson, Michael H. Zischke, Andrew B. Sabey, Linda C. Klein and James M. Purvis for
California Building Industry Association, Building Industry Legal Defense Foundation, Building Industry
Association of the Bay Area, California Business Properties Association and California Association of
Realtors as Amici Curiae on behalf of Defendant and Appellant.

Sidley Austin, Mark E. Haddad, Michelle B. Goodman, Wen W. Shen and David L. Anderson for
Governors George Deukmejian, Pete Wilson and Gray Davis as Amici Curiae on behalf of Defendant and
Appellant.








Page 2 – S271763 – counsel continued

Counsel:

Gatzke Dillon & Ballance, Mark J. Dillon, David P. Hubbard; Morrison & Foerster, Miriam A. Vogel;
Nielsen Merksamer Parinello Gross & Leoni, Arthur G. Scotland; Downey Brand and Patrick G. Mitchell
for Real Party in Interest and Appellant.

Poole & Shaffery, David S. Poole, John H. Shaffery and Samuel R.W. Price for Santa Clarita Valley
Economic Development Corporation as Amicus Curiae on behalf of Defendant and Appellant and Real
Party in Interest and Appellant.

John Buse, Kevin P. Bundy, Aruna Prabhala; Law Office of Adam Keats, Adam Keats; Jason A. Weiner;
Frank G. Wells Environmental Law Clinic, Sean B. Hecht; Chatten-Brown and Carstens, Jan Chatten-
Brown and Doug Carstens for Plaintiffs and Respondents.

Courtney Ann Coyle for the Karuk Tribe, the Kashia Band of Pomo Indians of Stewarts Point Rancheria,
the Pala Band of Mission Indians, the Pechanga Band of Luiseño Indians, the Santa Ynez Band of
Chumash Indians and the Tinoqui-Chaloa Council of Kitanemuk & Yowlumne Tejon Indians of the Former
Sebastian Indian Reservation as Amici Curiae on behalf of Plaintiffs and Respondents.

Matthew Vespa for Sierra Club as Amicus Curiae on behalf of Plaintiffs and Respondents.

Lucy H. Allen; Austin Sutta and Sharon E. Duggan for Environmental Protection Information Center,
Audubon California and California Trout, Inc., as Amici Curiae on behalf of Plaintiffs and Respondents.

Christopher H. Calfee for Governor‘s Office of Planning and Research and California Natural Resources
Agency as Amici Curiae on behalf of Plaintiffs and Respondents.

Burke, Williams & Sorensen, Kevin D. Siegel and Stephen Velyvis for League of California Cities,
California State Association of Counties, California Special Districts Association and Southern California
Association of Governments as Amici Curiae.

Brandt-Hawley Law Group and Susan Brandt-Hawley for Planning and Conservation League as Amicus
Curiae.



2





Counsel who argued in Supreme Court (not intended for publication with opinion):

Tina A. Thomas
Thomas Law Group
455 Capitol Mall, Suite 801
Sacramento, CA 95814
(916) 287-9292

Mark J. Dillon
Gatzke Dillon Balance
2762 Gateway Road
Carlsbad, CA 92009
(760) 431-9501

John Buse
Center for Biological Diversity
1212 Broadway, Suite 800
Oakland, CA 94612
(510) 844-7100

Kevin P. Bundy
Center for Biological Diversity
1212 Broadway, Suite 800
Oakland, CA 94612
(510) 844-7100




3

Opinion Information
Date:Docket Number:
Mon, 11/30/2015S217763