Opinion
B325502
06-25-2024
AIDS HEALTHCARE FOUNDATION, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents; SOUTHERN CALIFORNIA FLOWER GROWERS, INC., Real Party in Interest and Respondent.
Advocates for the Environment and Dean Wallraff for Plaintiff and Appellant. Hydee Feldstein Soto, City Attorney, Denise C. Mills, Chief Deputy City Attorney, Scott Marcus, Chief Assistant City Attorney, Shaun Dabby Jacobs and John W. Heath, Assistant City Attorneys, Oscar Medellin, Kimberly A. Huangfu and Merete Rietveld, Deputy City Attorneys, for Defendants and Respondents. Alston &Bird and Edward J. Casey for Real Party in Interest and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. 22STCP00090 Mitchell L. Beckloff, Judge. Affirmed.
Advocates for the Environment and Dean Wallraff for Plaintiff and Appellant.
Hydee Feldstein Soto, City Attorney, Denise C. Mills, Chief Deputy City Attorney, Scott Marcus, Chief Assistant City Attorney, Shaun Dabby Jacobs and John W. Heath, Assistant City Attorneys, Oscar Medellin, Kimberly A. Huangfu and Merete Rietveld, Deputy City Attorneys, for Defendants and Respondents.
Alston &Bird and Edward J. Casey for Real Party in Interest and Respondent.
STRATTON, P. J.
This is the second time plaintiff AIDS Healthcare Foundation (AHF) has challenged a specific mixed-use residential and commercial development project proposed by defendant City of Los Angeles and real party in interest Southern California Flower Growers, Inc. (Flower Growers). In its first petition for writ of mandate, AHF challenged the Environmental Impact Report (EIR) prepared by the City for the project. The trial court granted AHF's petition in part and ordered the City to decertify the EIR and fix its deficiencies. In response, the City prepared and filed a revised Environmental Impact Report (the REIR) and asked the court to discharge the writ. AHF objected to the discharge on grounds related to the procedures used to decertify and recertify the EIR.
AHF also was not satisfied with the City's substantive changes to the EIR and filed this second action by which it sought to decertify the REIR. AHF contended the chapter on greenhouse gas (GHG) emissions in the REIR violates the California Environmental Quality Act (CEQA) due to six flaws in the GHG analysis. AHF further contended the City's process in adopting CEQA Appendix G Thresholds violated the law in several ways, rendering its adoption ineffective.
AHF repeats these contentions on appeal. In addition to responding to AHF's contentions in their briefs, the City and Flower Growers (respondents) have filed a motion to dismiss the appeal on res judicata grounds. In a separate order, we deny the motion. We affirm the judgment.
BACKGROUND
Flower Growers is an association which owns two buildings in downtown Los Angeles, commonly referred to as the Flower Market. It proposes to upgrade and renovate one of the buildings and to replace the other with a new mixed-use tower of residential and nonresidential units (such as office and retail spaces).
In November 2016 the City began its environmental review pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). In June 2019, the City's Advisory Agency certified an EIR and approved the project. In August 2019 the City Planning Commission also certified the EIR and affirmed the project approval. In October 2019, the Planning and Land Use Management Committee voted to recommend that the City Council approve the project. In November 2019, the City Council approved the project.
One month later, in December 2019, AHF filed its first petition for writ of administrative mandate challenging the 2019 EIR. In an April 5, 2021, order, the trial court granted the petition in part, denied it in part, and subsequently issued a writ of mandate. Flower Growers filed a notice of appeal from the trial court's decision but complied with it. AHF did not appeal. In July 2022, Flower Growers voluntarily dismissed its appeal.
In granting in part the first petition for writ of mandate and as explained in more detail below, the trial court described AHF's claim of error: AHF "contends the EIR's GHG emissions analysis is inconsistent with [Senate Bill No. 32]. That is, [AHF] attacks the City's finding the Project is 'consisten[t] with the policies in [Senate Bill] 32 and Executive Order [No.] B-30-15, which includes the GHG reductions goals codified in [Senate Bill] 32.'" The trial court went on to find "the EIR's claim of consistency with [Executive Order No.] B-30-15 and the policies therein is not supported by substantial evidence. Thus, the EIR's conclusions that GHG emissions do not exceed the City's chosen significance threshold is unsupported. . . . [AHF] is entitled to relief based on the EIR's incomplete discussion of GHG emission impacts."
Senate Bill No. 32 (2015-2016 Reg. Sess.) (Senate Bill 32).
In response to the court's mandate, the City decertified the 2019 EIR and prepared and certified the REIR. The City then filed a return with the court stating that it had complied with the writ. It moved to discharge the writ of mandate.
AHF opposed discharge of the writ, claiming that the City had not followed the proper procedures when it decertified the EIR and certified the RIER. AHF describes these claims in opposition as "procedural."
At the same time, AHF filed a new, second petition for writ of mandate (the basis of this appeal), which sought to decertify the REIR based on flaws in the REIR's analysis of GHG emissions. AHF describes these claims as "substantive." The second petition also includes a cause of action mounting a facial challenge to the City's adoption of CEQA's statewide Appendix G environmental questions checklist as the City's CEQA thresholds of significance, contending the process by which Appendix G was adopted is invalid.
An EIR must identify and focus on the "significant effects on the environment of the proposed project." (Pub. Resources Code, § 21100, subd. (b)(1).) The agency responsible for determining whether an adverse environmental effect identified in an EIR should be classified as "significant" or "less than significant" must use appropriate thresholds of significance based to the extent possible on scientific and factual data. (Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 515.) Many agencies use CEQA's Appendix G checklist as a basis for defining standards of significance in an EIR. (Mission Bay Alliance v. Office of Community Investment & Infrastructure (2016) 6 Cal.App.5th 160, 192 [upholding threshold of significance of noise impacts based in part on questions in Appendix G checklist].)
At the trial setting conference on April 29, 2022, the court set the hearings on the second petition and the motion to discharge the writ in the first petition for June 15, 2022, and subsequently continued to June 24, 2022. In its tentative ruling for the hearing, the trial court proposed consolidation of the two petitions for purposes of trial. The parties agreed to the court's consolidation plan. The court also indicated it intended to hear the facial challenge to the adoption of Appendix G, which was not specific to the Flower Growers' project, at a later date, ultimately agreed upon as August 19, 2022.
The consolidated trial resulted in a July 5, 2022, order captioned for both petitions. The court summarized its prior ruling in issuing the writ in the first petition: "The court determined the 2019 EIR's finding the project was inconsistent with [Executive Order No.] B-30-15 (codified at Senate Bill . . .32) and the policies therein was not supported by substantial evidence. Therefore, the court concluded the 2019 EIR's position [that] GHG emissions would not exceed the City's chosen threshold of significance was unsupported. The City's failure to address [Executive Order No.] B-30-15 constituted an incomplete discussion of GHG emissions."
The court then found, "The City demonstrates the REIR considered and analyzed the project in the context of [Executive Order No.] B-30-15, [Senate Bill] 32, and the 2017 Scoping Plan to ensure compliance with each."
The term "scoping" is used in practice to refer collectively to all three methods of determining the scope of an EIR (initial study, agency consultation and early consultation with the public and interest organizations). (Cal. Code Regs., tit. 14, § 15083.)
The court then considered and rejected several claims of the second petition. Broadly speaking, AHF claimed the REIR was defective under Newhall, and was not consistent with the Los Angeles Green New Deal Sustainability Plan (LA Green New Deal) or the Climate Change 2017 Scoping Plan by California Air Resources Board (CARB 2017 Scoping Plan).
Newhall is the short cite used by both parties for Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204.
For the sake of clarity, we note that the July 5, 2022, order also considered and rejected AHF's "procedural" challenges made in opposition to the motion to discharge. Those challenges are not the subject of this appeal.
The court acknowledged that the parties had agreed it could consolidate the matters for trial. The court added that AHF had requested that three of its claims be decided at the hearing on the facial challenge: "(1) the City's adoption of Appendix G as the City's CEQA thresholds for purposes of this project; (2) Petitioner's claim [Assembly Bill No. 32] is irrelevant to any greenhouse gas (GHG) analysis of this project; and (3) Executive Order [No.] B-55-18." (Italics added.) The court agreed to "address those issues at the hearing on issue raised in the petition on August 19, 2022. [Fn. omitted.]"
Assembly Bill No. 32 (2005-2006 Reg. Sess.) (Assembly Bill 32).
In the conclusion section of the July 5, 2022, order, the court issued its final ruling on the first petition: "Based on the foregoing, the City's motion to discharge the writ is granted. The . . . objections to the City's return are overruled." The court also stated: "The hearing on remaining issues [in AHF's second petition] and Petitioner's Code of Civil Procedure section 1085 claims are continued to August 19, 2022 at 1:30 p.m."
As discussed above, Flower Growers appealed from the July 5, 2022, order and later voluntarily dismissed its appeal. AHF did not appeal from the July 5, 2022, order. Thus, the July 5, 2022, order overruling AHF's objections to the REIR made in opposition to the discharge of the writ, that is, the "procedural" claims, is final.
As scheduled, the trial court held a hearing on August 19, 2022 and on October 31, 2022, issued its ruling which was captioned for the second AHF petition only. The court considered and rejected a facial challenge to the City's adoption of Appendix G, a claim which was not tied to this project. The court also considered the issues expressly reserved for the August 19, 2022, hearing, and found them barred by res judicata. Specifically, and as foreshadowed in the July 5, 2022, order, the court found res judicata as to those issues addressed in its April 5, 2021, order granting the petition in part and denying it in part. The court denied AHF's second petition and issued a judgment on January 4, 2023. This appeal followed.
DISCUSSION
I. The October 2022 Order and the Doctrine of Res Judicata Bar Consideration of Three of AHF's Substantive GHG Claims.
Generally, res judicata describes the preclusive effect of a final judgment on the merits. Res judicata or claim preclusion prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them. Collateral estoppel, or issue preclusion, precludes relitigation of issues argued and decided in prior proceedings. Although the term "res judicata" is often applied to both doctrines, we follow our Supreme Court in limiting its scope to claim preclusion. (Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 226 (Planning &Conservation).)
In the October 2022 order, the trial court found that three of AHF's "substantive" claims were barred by res judicata, based on the court's April 2021 order on the first petition. These claims all related to the GHG emissions chapter of the REIR.
The record shows that the trial court and the parties were unsure whether res judicata based on the April 2021 order could be determined while an appeal was pending in the first petition. The trial court believed that the July 5, 2022, order would become final once respondents dismissed their appeal, and so deferred ruling on the issue until October 31, 2022.
AHF contends broadly that the GHG emissions chapter in the 2019 EIR was substantially revised for the REIR and so the trial court's prior review of the 2019 EIR, as embodied in the April 2021 order, has no preclusive effect. AHF also claims the challenges to the EIR and the REIR involve different legal claims. We do not agree.
"Whether the doctrine of res judicata applies in a particular case is a question of law which we review de novo." (City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210, 228.)
A. Rulings on Claims Made About the EIR May Have Preclusive Effects on Claims Made About the REIR.
AHF relies solely on Planning &Conservation, supra, 180 Cal.App.4th 210 to support its claim that the EIR and the REIR are substantially different documents. This reliance is misplaced.
The facts of Planning &Conservation are relevant. In that case the Planning &Conservation League and other petitioners challenged, by way of administrative mandamus, a 1999 EIR prepared by Castaic Lake Water Agency. The trial court rejected petitioners' key contentions but found the 1999 EIR defective and issued a writ directing Castaic to decertify the EIR. The 1999 EIR had incorporated by reference an EIR prepared by a different agency based on an agreement, the Monterey Agreement, allocating water supplies. The incorporated EIR for the Monterey Agreement was later found defective and was decertified. Based on that decertification, the trial court ordered the 1999 EIR decertified because it had incorporated or "tiered off' the defective Monterey Agreement EIR. (Planning & Conservation, supra, 180 Cal.App.4th at p. 221.)
In response, Castaic chose to prepare and certify a "standalone" 2004 EIR which did not incorporate the decertified Monterey Agreement EIR and included stand-alone analysis. The 2004 EIR also considered water allocation scenarios factually different and apart from the Monterey Agreement. (Planning &Conservation, supra, 180 Cal.App.4th at pp. 222-223.) Similar to what happened here, Castaic filed a return and asked that the writ be discharged. One of the petitioners, Friends of the Santa Clara River (Friends), then filed a voluntary dismissal of its action which constituted entry of judgment in favor of Castaic. Two of the remaining petitioners filed a second action challenging the 2004 EIR. Their second action was successful as the trial court found the 2004 EIR defective. Castaic appealed, arguing res judicata, that is, the judgment entered in favor of Castaic on the Friends' dismissal precluded a second action challenging the 2004 EIR. (Id. at p. 224.)
The court in Planning & Conservation noted that the doctrine of res judicata "may not apply when 'there are changed conditions and new facts which were not in existence at the time the action was filed upon which the prior judgment is based. [Citations.]'" (Planning &Conservation, supra, 180 Cal.App.4th at p. 227.) It was this exception upon which that court relied to support its finding that res judicata did not apply. (Id. at p. 228.)
The Planning & Conservation court concluded: "As the 1999 EIR and 2004 EIR are factually distinct attempts to satisfy CEQA's mandates and Friends was not required to litigate the 2004 EIR in its original action, we conclude that Friends's action and the underlying actions involved different causes of action." (Planning & Conservation, supra, 180 Cal.App.4th at p. 228, fn. omitted.)
Planning & Conservation in no way changes the general rule that res judicata bars a petitioner's challenge to a revised EIR in a second proceeding when" 'the material facts had not changed and the issues asserted in the later proceeding could have been asserted in the prior proceeding.'" (Atwell v. City of Rohnert Park (2018) 27 Cal.App.5th 692, 701.) AHF has not shown any factual changes comparable to those in Planning & Conservation, or, indeed, any factual changes at all between the 2019 EIR and the REIR. Thus, res judicata may apply.
As noted, the term res judicata is often used to refer to both claim preclusion and issue preclusion. There are some differences in the application of the two types of preclusion, but we do not discuss those differences in this section, as AHF has not made any claims which depend on a distinction between the types of preclusion.
B. AHF Fails to Show Res Judicata Is Inapplicable to Three Specific Claims at Issue.
Of the three claims the court found barred by res judicata arising from the April 2021 order, two claims (involving Assembly Bill 32 and Executive Order No. B-55-18) were expressly made by AHF in support of its first petition. The trial court found them implicitly rejected in the April 2021 order.
The third barred claim appears to involve a contention that AHF could have but did not make in support of its first petition. "The court finds Petitioner's claim related to the City's adoption of Appendix G as the City's CEQA thresholds for purposes of this project is barred by res judicata."
1. Assembly Bill 32
On appeal, AHF contends the REIR should not have analyzed the project's compliance with Assembly Bill 32 because "it is confusing and misleading." More specifically, AHF contends that Assembly Bill 32, aimed at reducing GHG emissions, is no longer relevant because California has met Assembly Bill 32's goals. Left unsaid, perhaps in an attempt to avoid res judicata, is that new goals now exist.
In its first petition, AHF argued on appeal that the EIR was flawed because it analyzed the project's consistency with Assembly Bill 32 (Health &Saf. Code, § 38500 et seq.) rather than Senate Bill 32, which also set reduced emission goals for GHG. Specifically, its reply brief contains a section entitled "The City abused its discretion in adopting a threshold that includes [Assembly Bill] 32 and not [Senate Bill] 32," with subheadings entitled "Compliance with [Assembly Bill] 32 is no longer a valid GHG significance threshold" and "[Senate Bill] 32 has effectively replaced [Assembly Bill] 32 as the state-level GHG program with which the Project must be consistent." (Italics omitted.)
These two arguments are fundamentally the same: Assembly Bill 32 is outdated and so references to it are confusing. While Assembly Bill 32 is more dated in the REIR than it was in the 2019 EIR, the claim is fundamentally the same. Thus, the April 2021 ruling on this issue has preclusive effect.
2. Executive Order No. B-55-18
Executive Order No. B-55-18 sets a goal of reducing GHG emissions by a certain date. It is AHF's burden to show error, and AHF does not offer any argument showing that its current claim concerning Executive Order No. B-55-18 is different from its claim in the first petition. Accordingly, AHF has forfeited its claim that the trial court erred in finding res judicata barred this claim. (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153 (United Grand) [" 'In order to demonstrate error, an appellant must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.' "].)
3. Adoption of Appendix G for This Project
The record shows that AHF acknowledged in its reply brief on appeal in the first petition that the 2019 EIR's discussion of GHG significance thresholds "begins by adopting the thresholds of significance from Guidelines Appendix G." AHF, however, contended only that the discussion was "inaccurate and confusing." AHF does not contend that it could not have raised the Appendix G adoption claim in support of its first petition. Accordingly, the April 5, 2021, order on this issue had preclusive effect.
II. The July 5, 2022, Order Is Supported by Substantial Evidence and Was Issued Using Correct Procedures.
AHF claims there are three sets of errors in the REIR: it suffers from a" Newhall" defect; it does not demonstrate consistency between the project and the CARB 2017 Scoping Plan, and it does not demonstrate consistency between the project and LA Green New Deal.
Respondents claim in their brief that consideration of three issues raised in the second petition and addressed in the trial court's July 5, 2022, order is barred by res judicata. We have addressed that claim at some length in our order denying respondents' motion to dismiss, and we incorporate that discussion by reference here. We note that we do not understand the trial court as making an express ruling in the October 31, 2022, order that res judicata barred consideration of the substantive issues actually decided in the July 5, 2022, order. The court merely stated: "As the court addressed those substantive claims in the related proceeding, the court does not do so again here." Accordingly, respondents are effectively claiming that the trial court erred in failing to find res judicata expressly. “As a general rule, respondents who fail to file a cross-appeal cannot claim error in connection with the opposing party's appeal.” Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1121 (Prakashpalan).) There is a limited exception which permits review of such claims for the purpose of determining whether the appellant was prejudiced by its claimed errors. (Ibid.) Because we find no merit to AHF's claims concerning the REIR, we need not and do not consider respondents' alternate legal theory to assess prejudice.
"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.) 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.'" (Newhall, supra, 62 Cal.4th 204 at pp. 214-215, fn. omitted.) More specifically, we determine de novo whether the agency has employed the correct procedures, while our review for substantial evidence is more deferential. (Ebbetts Pass Forest Watch v. California Dept. of Forestry &Fire Protection (2008) 43 Cal.4th 936, 944.)
A. "Newhall" Defect
AHF contends that the GHG analysis in the REIR suffers from the same defect as the defect in the Newhall case. That is not possible. To borrow a phrase from AHF, comparing the REIR to the Newhall EIR is comparing apples to oranges. In Newhall, the agency preparing the EIR chose "to rely completely on a single quantitative method to justify a no-significance finding." (Newhall, supra, 62 Cal.4th at p. 228.) Here, the City chose a different option to justify a no-significance finding, and one broadly approved by the court in Newhall: "looking to compliance with regulatory programs designed to reduce greenhouse gas emissions from particular activities." (Id. at p. 229.) To shorthand this, the Newhall EIR used a quantitative threshold of significance while the REIR uses a sanctioned, qualitative one.
More specifically, the Newhall EIR's "method for determining whether the project would impede achievement of [California'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." (Newhall, supra, 62 Cal.4th at p. 218.) The EIR found that its estimate showed a 31 percent reduction from business as usual, which was better than the Air Board's determination of a 29 percent reduction from business as usual needed statewide. (Ibid.) Based solely on that comparison, the EIR concluded "the project's likely greenhouse gas emissions will not impede achievement of [California's] goals and are therefore less than significant for CEQA purposes." (Ibid.) Put differently, the EIR concluded that a "project-level reduction of 31 percent in comparison to business as usual is consistent with achieving Assembly Bill 32's statewide goal of a 29 percent reduction from business as usual." (Newhall, at p. 225.)
As the Supreme Court concluded in Newhall: "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." (Newhall, supra, 62 Cal.4th at p. 227, italics added.) The Supreme Court then held: "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 nosignificance 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." (Id. at p. 228, italics added.)
When an agency elects to assess consistency "by looking to compliance with regulatory programs designed to reduce greenhouse gas emissions from particular activities," both a different comparison and a justification are required. (Newhall, supra, 62 Cal.4th at p. 229.) The comparison asks whether "a project's design features comply with or exceed the regulations . . . adopted by the Air Board or other state agencies." (Ibid.) If so, the 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.'" (Ibid.) This is by definition not a quantitative comparison.
The Supreme Court in Newhall cautions that compliance with statewide regulations may not be sufficient. "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." (Newhall, supra, 62 Cal.4th at p. 229.) As the Newhall Court explains, however, the remedy for this is to use other or additional reduction plans, for example, "geographically specific greenhouse gas emission reduction plans to provide a basis for the tiering or streamlining of project-level CEQA analysis." (Id. at p. 230.) As AHF acknowledges, the REIR relies on a wide variety of state and local plans.
AHF contends that the REIR does use "a quantitative approach" to determine consistency with state goals, at least with one of the plans, the CARB 2017 Scoping Plan. By this, AHF means that the REIR contains projected GHG emissions under a "no-action-taken" (NAT) scenario and under a "project as proposed" scenario, then compares the percentage reduction between those scenarios to the percentage reduction targeted by the CARB 2017 Scoping Plan.
As the REIR explains, these numerical projections were made "to comply with the requirements of CEQA Guidelines, section 15064.4(a) . . . [which require] a good faith estimate of the GHG emissions resulting from the project, both with and without project specific measures, including project design features as well as regulatory compliance measures, intended to implement the policies." The City made it clear that it "does not have or use a numerical threshold for GHG or a methodology that relies on a quantitative analysis. Instead, the Project's GHG emissions are quantified and provided . . . [as] evidence that the implementation of the plans, policies and regulations adopted to reduce GHG emissions will result in actual GHG reductions."
The City's computation of the required estimates under CEQA Guidelines section 15064.4 does not preclude the City from relying on qualitative thresholds to assess significance. Relying on a qualitative threshold, "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." (Newhall, supra, 62 Cal.4th at p. 221.) Section 15064.4 of the Guidelines was intended" 'to assist lead agencies' in investigating and disclosing 'all that they reasonably can' regarding a project's greenhouse gas emissions impacts." (Newhall, at p. 221.)
References to "Guidelines" refer to the CEQA Guidelines set forth in the California Code of Regulations, title 14, section 15000 et seq.
Further, although the City does compare the two estimates and note their consistency with the reduction targeted by the CARB 2017 Scoping Plan, the City relies for its formal consistency analysis on a qualitative comparison. As the REIR expressly states: "Based on the following analysis provided in Table 4.F-7A, the Project would be consistent with the State's Climate Change Scoping Plan's objective of reducing 2030 GHG emissions in accordance with [Senate Bill] 32."
We note that AHF contends that the NAT scenario used by the City is highly contrived. AHF contends that the NAT scenario excludes policies and programs that were included in the "business-as-usual" baseline scenario in the CARB 2017 Scoping Plan and includes a "contrafactual assumption." AHF contends this is "confusing and misleading to decision-makers and the public, and therefore violates CEQA." As the trial court points out, the REIR clearly notes which policies and programs are excluded. The REIR does not claim that NAT is identical to "business-as-usual," merely that the NAT scenario was constructed using the same methodology as the "business-as-usual" scenario. Thus, the NAT scenario is not confusing or misleading. Further, the CARB 2017 Scoping Plan is a statewide plan using statewide numbers. AHF has not shown that the "business-as-usual" scenario in the CARB 2017 Scoping Plan would be appropriate at a project level.
B. CARB 2017 Scoping Plan
AHF contends the project is not consistent with two aspects of the CARB 2017 Scoping Plan, and so violates CEQA. First, AHF contends the REIR makes no attempt to reconcile the project's purported 66 percent reduction in GHG emissions from the NAT scenario with the CARB 2017 Scoping Plan's goal of an 80 percent reduction below 1990 levels by 2050. Second, the CARB 2017 Scoping Plan recommends statewide targets of no more than six metric tons of carbon dioxide equivalent (CO2e) per capita by 2030 and two metric tons per capita by 2050, but by AHF's calculations, the project will have per capita GHG emissions of 6.43 metric tons of CO2e.
1. 80 Percent Goal
AHF's claim that the City did not attempt to reconcile the 66 percent reduction projection in the REIR with the 80 percent goal discussed in the CARB 2017 Scoping Plan is fundamentally a claim that numeric or quantitative comparisons are required. They are not.
The claim also betrays a misunderstanding of the CARB 2017 Scoping Plan, or perhaps a criticism of the CARB 2017 Scoping Plan's approach to the 2050 goals. The CARB 2017 Scoping Plan contains a strategy for achieving a 40 percent GHG reduction by 2030. In contrast, it "Set[s] the [p]ath to 2050"; "chart[s] an appropriate trajectory forward"; and creates "momentum to propel [California] to the 2050 statewide GHG target." Essentially, the CARB 2017 Scoping Plan concludes that, for now, achieving the 2030 reduction goals will move California sufficiently along the path to 2050 to make the 2050 goals achievable. The CARB 2017 Scoping Plan envisions that a more specific strategy for reaching those goals will be put in place in the future. Thus, as the REIR correctly notes "a project's consisten[cy] with the CARB 2017 Scoping Plan demonstrates the project's consistency with the goal for GHG emissions reduction by the year 2050."
See also the REIR, Appendix F-1.
2. CO2e Measurements
The discussion of CO2e relied upon by AHF is found in a section of the CARB 2017 Scoping Plan entitled "Climate Action through Local Planning and Permitting." That section specifically states: "While this guidance is provided out of the recognition that local policy makers are critical in reducing the carbon footprint of cities and counties, the decision to follow this guidance is voluntary and should not be interpreted as a directive or mandate to local governments." (Italics added.) In the first subsection, entitled "Recommended Local Plan-Level Greenhouse Gas Emissions Reduction Goals," the plan "recommends that local governments evaluate and adopt robust and quantitative locally-appropriate goals that align with the statewide per capita targets." (Italics added.) A footnote states: "These goals are appropriate for the plan level (city, county, subregional, or regional level, as appropriate), but not for specific individual projects because they include all emissions sectors in the State." (Italics added.)
AHF has not provided any reason why the project should have to meet these voluntary targets, intended to provide voluntary guidance to local governments for planning purposes, and which are specifically described as not appropriate for individual projects. We see none.
Further, as respondents point out, this is an attempt to require a quantitative approach to the analysis. The CARB 2017 Scoping Plan uses a qualitative approach and need not and does not rely on numeric thresholds.
3. LA Green New Deal Sustainability Plan
For four reasons, AHF claims that the project is not consistent with the City's LA Green New Deal, another regulatory policy for GHG put in place by the City.
First, AHF contends that the City's response to comments on the proposed revised draft EIR indicated that LA Green New Deal involves mainly with City-owned buildings and operations. LA Green New Deal does deal mainly with City-owned buildings, but it also includes policies applicable to the project, and the REIR does evaluate the project's consistency with those policies.
Second, AHF complains that the draft EIR estimate for natural gas usage, which showed the project would not achieve LA Green New Deal's 2025 target of 53 mBTU/sqft was revised downward in the REIR without any information about why the revised number was smaller. This is another argument based on the incorrect premise that quantitative comparisons are required. Further, it is incorrect. Table II-2 and Appendix F-1 provide the source for the figures used. Further, Appendix C, listed in Tabel II-2 provides back up in the form of usage figures from a statewide model approved by the South Coast Air Quality Management District.
In its reply brief, AHF acknowledges that there are backup figures in Appendix C, then raises what we understand as a new claim: the EIR does not reconcile the newly calculated natural gas figures with the natural gas usage estimated in the final REIR. We do not consider claims raised for the first time in a reply brief. (United Grand, supra, 36 Cal.App.5th at p. 158.)
Third, AHF claims the City's estimate of electricity usage is improperly calculated on a "net" basis. We agree with respondents that AHF did not present this objection during the re-entitlement process and it is therefore barred by the doctrine of administrative remedies. (See Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 17 Cal.App.5th 413, 446.)
Fourth, AHF claims the project cannot comply with LA Green New Deal's goal of 100 percent of buildings being net zero carbon by 2050 because it will use natural gas. We agree with respondents that this claim is doubly barred, because AHF did not raise it during the administrative proceedings or in the trial court. (Wilson v. State Personnel Board (1976) 58 Cal.App.3d 865, 882-883.)
III. The City's Adoption of CEQA's Appendix G Thresholds Violated No Law.
AHF contends the City's adoption of Appendix G as the City's CEQA thresholds violated the law in three ways and so the adoption was invalid and without effect. We do not agree.
Respondents contend AHF's facial challenge is barred by the statute of limitations. By considering AHF's facial challenge to the adoption of Appendix G, the trial court at least impliedly rejected the City's argument that the 90-day limitation period in Government Code section 65009 governs this action, and impliedly accepted AHF's argument that the three-year statute of limitations provided by Code of Civil Procedure section 338, subdivision (a), applies. Thus, respondents are claiming the trial court erred. "As a general rule, respondents who fail to file a crossappeal cannot claim error in connection with the opposing party's appeal." (Prakashpalan, supra, 223 Cal.App.4th at p. 1121.) There is a limited exception which permits review of such claims for the purpose of determining whether the appellant was prejudiced by its claimed errors. (Ibid.) Because we find no merit to AHF's facial challenge to the adoption of Appendix G, we need not and do not consider respondents' alternate legal theory to assess prejudice.
AHF brought its facial challenge pursuant to Code of Civil Procedure section 1085. When a trial court "reviews an administrative decision pursuant to Code of Civil Procedure section 1085, it merely asks whether the agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires. [Citation.] In reviewing a trial court's judgment on a petition for writ of ordinary mandate, we apply the substantial evidence test to the trial court's factual findings. However, we exercise our independent judgment on legal issues, such as the interpretation of statutory retirement provisions." (Kreeft v. City of Oakland (1998) 68 Cal.App.4th 46, 53.)
A. Neither Publication Nor Mayoral Approval Was Required.
AHF contends the Appendix G Thresholds were not published or approved by the Mayor of Los Angeles and so they never took effect. AHF contends section 506 of the Los Angeles City Charter requires both. We do not agree.
Subdivision (b) of section 506 of the Los Angeles City Charter provides: "Every order or resolution adopting a rule of general application to be followed by the public shall be published once in a daily newspaper and shall take effect upon publication. Those rules, when adopted by order of a general manager who is the head of the department, shall be subject to the approval of the Mayor." (L.A. Charter, § 506, subd. (b).)
This subdivision only applies to a rule of "general application to be followed by the public." (L.A. Charter, § 506, subd. (b).) The trial court found that "[t]hresholds of significance are used by agencies to evaluate the environmental impacts, if any, of proposed projects. In fact, Guidelines section 15064.7, subdivision (b) describes thresholds of significance as related to work done by agencies-'Each public agency is encouraged to develop and publish thresholds of significance that the agency uses in the determination of the significance of environmental effects.' (Guidelines, § 15064.7, subd. (b)[, underscoring added].) The Guidelines further explain thresholds of significance are a 'part of the lead agency's environmental review process . . . .' (Ibid.[, underscoring added.]) While project proponents are certainly guided by an agency's thresholds of significance, the thresholds are not rules of general application to be followed by the public. Thresholds of significance are used by an agency for its environmental review and obligations under CEQA."
AHF acknowledges that the City is responsible for ensuring that environmental documents under CEQA reflect the City's independent judgment, but notes CEQA allows those to be prepared by applicants and outside consultants, who are members of the public.
We question whether a small group of people working in a specialized field are what the charter means by "the public." More importantly, the thresholds are not something "to be followed by" the public, however broadly or narrowly defined. Applicants and consultants may refer to the thresholds to prepare a draft document, to make it more likely to be approved by the agency who is responsible for reviewing the documents using the thresholds; it remains, however, the agency's responsibility to follow the thresholds when carrying out its duties of conducting the environmental review process and reviewing and evaluating the significance of environmental impacts. Put differently, nonagency employees are not in a position to follow the thresholds because they do not have the authority to use the thresholds for their intended purposes.
B. Substantial Evidence Supports the Adoption.
AHF contends the adoption of Appendix G was not supported by substantial evidence. AHF contends the only evidence found by the trial court for the adoption was that the City's CEQA thresholds needed updating. AHF contends there must be evidence of why Appendix G is specifically suited to be used by the City.
The trial court found evidence in the project analysis attached to the recommendation report prepared by the Los Angeles Department of City Planning. This report contains substantial evidence supporting the adoption of Appendix G. The report notes that Appendix G "is what most other cities in California use as their CEQA thresholds and/or to conduct environmental review." This widespread use is evidence that Appendix G is appropriately used at the city level. The report notes that there have been many updates in state law, including new court cases, since 2006, but there have been no formal updates to the City's 2001 thresholds since 2006, only the use of different thresholds "on a case-by-case basis in order to be consistent with updates to CEQA that have occurred since 2006." In contrast, the Los Angeles Department of City Planning expects that future CEQA updates could be "automatically" incorporated into Appendix G. This will "prevent the thresholds from stagnating in the future." This is evidence of a specific efficiency benefit to the City from Appendix G. The report also explains that "Appendix G of the State CEQA Guidelines contains a sample initial study format and asks a series of questions regarding a range of environmental resources and potential impacts." Thus, they are applicable to all projects. Finally, Appendix G "centralize[s] the [Los Angeles Department of City Planning] CEQA thresholds into one clear and concise document." Among other things, this will "provide clear expectations." As a whole, these benefits "will keep the [Los Angeles Department of City Planning] CEQA process in line with the goals of the State."
C. The Record Concerning the 2006 Thresholds is Inadequate.
AHF contends that in 2001 the Los Angeles City Council adopted a motion that authorized City departments to use the Los Angeles CEQA Thresholds Guide. According to AHF, the City Council updated the CEQA Thresholds Guide in 2006. AHF contends that the Director did not have authority under the City Charter to repeal the City Council's adoption of the 2006 Thresholds, making the purported adoption of the Appendix G Thresholds ineffective.
The trial court found that AHF had presented evidence of the 2001 motion, but that the relationship between the 2001 motion and the 2006 Thresholds Guide was unclear. The trial court found: "While the City may concede the City Council had some involvement with the 2006 Thresholds Guide . . ., without some evidence of what action, if any, the City Council took as to the 2006 Thresholds Guide, the court cannot evaluate Petitioner's claim."
We find substantial evidence to support the trial court's finding of an inadequate record. The only document cited in AHF's opening brief to support this argument relates to the 2001 motion. No document is cited to support this argument in the reply brief.
On appeal, AHF points to another document attached to its counsel's declaration in support of the opening brief, which AHF did not cite in support of this argument. The time to cite that document was in the trial court, not now.
Assuming for the sake of argument that AHF had not forfeited this claim by failing to cite the document in the trial court, we would not find it helpful. The document states: "In 2006, the City of Los Angeles adopted the LA City CEQA Thresholds Guide, which included CEQA thresholds of significance. Since then, CEQA has changed through amendments to the CEQA statutes and guidelines. In addition, new court decisions have re-shaped how CEQA is implemented. The City Council provided in the 2006 Thresholds Guide, that the thresholds were voluntary. City departments were still able to use different thresholds on a project-by-project basis. The 2006 Thresholds Guide also provided that it was intended to be revisited and updated. There have been no formal updates since 2006. However, the City of Los Angeles uses different thresholds today on a case-by-case basis in order to be consistent with updates to CEQA that have occurred since 2006." This paragraph specifically refers to the City Council only once; it does not state that the City Council adopted the 2006 Thresholds Guide by motion. Further, as respondents point out, the 2006 Thresholds Guide was voluntary and nonexclusive, and had not been entirely replaced: "the 2006 LA City CEQA Thresholds may still be used to answer [A]ppendix G questions."
DISPOSITION
The judgment is affirmed. Appellant to bear costs on appeal.
We concur: GRIMES, J., WILEY, J.