Alert > Land Use and Development / California Environmental Quality Act (CEQA)
Court Overturns Greenhouse Gas Emission Mitigation Measures
The key question for the court in Communities For A Better Environment v. City Of Richmond (April 26, 2010) was whether replacement and upgrade of certain equipment at the Chevron Richmond Refinery would enable the refinery to process a heavier grade of crude than it had processed in the past. In a decision that showed virtually no deference to agency fact finding, the court ruled it was permitted to weigh and balance evidence on the question of whether the project had been accurately described in the EIR prepared for the project.
The court acknowledged that the California Supreme Court has instructed that in CEQA cases a court can decide a question in the first instance when “the claim is predominantly one of improper procedure” but that a court must uphold any agency decision that is grounded on substantial evidence when the claim involves “a dispute over the facts.” After noting that the challenge before it related to the EIR’s description of the project, the CBE court concluded that the question must be one of procedure. The court then evaluated and compared conflicting expert reports, and concluded the EIR’s project description was inadequate.
The court then turned to the EIR’s analysis of greenhouse gas emissions. The EIR concluded the project’s emissions would be significant, proposed a no-net-increase performance standard for mitigation of GHG emissions, and listed a menu of candidate measures that might be used to achieve this standard. The court held that the city had improperly deferred mitigation of impacts, calling the no-net-increase performance standard “subjective.” The court found the EIR “offered no assurance that the plan for how the Project’s greenhouse gas emissions would be mitigated to a net-zero standard was both feasible and efficacious, and created no objective criteria for measuring success.”
The final issue the court addressed was a proposed hydrogen pipeline. The project included replacement of the hydrogen plant at the refinery, which would produce more hydrogen gas than the refinery needed. The party that owned the hydrogen plant had applied for a use permit to build a pipeline to transmit the excess hydrogen to other customers, and a separate EIR was being prepared for that use permit. The court held that because the refinery project was not dependent on the pipeline project, they could be treated as separate projects under CEQA.
For more information on this alert, please contact the lawyers listed below:
Marie A. Cooper, Of Counsel
marie.cooper@bingham.com, 415.393.2625
Barbara J. Schussman, Partner
barbara.schussman@bingham.com, 415.393.2380
Stephen L. Kostka, Partner
stephen.kostka@bingham.com, 415.393.2125
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