By Kimberly D. Farbota, Jennifer K. Roy, and Christopher Garrett
CEQA Case Report: Understanding the Judicial Landscape for Development[i]
In an unpublished opinion issued August 28, 2018, Forest Preservation Society v. Department of Forestry and Fire Protection, Case. No. SCUK-CVPT-15-66284, the California Court of Appeal affirmed the trial court’s judgment and upheld the California Department of Forestry and Fire Protection’s (Cal Fire’s or Department’s) approval of a Timber Harvest Plan (THP 80) proposed by real party in interest Mendocino Redwood Company (MRC). Petitioner Forest Preservation Society (Petitioner) requested for writ of mandate, arguing that the Department:
- Used an improper baseline for evaluating the impacts of THP 80 on climate change
- Showed no substantial evidence to support its finding that THP 80 would not significantly impact climate change
- Failed to fulfill its duty to create an enforceable mitigation and monitoring plan to alleviate the impacts on climate change
The trial court rejected these arguments and denied the petition, and the Court of Appeal upheld the denial. In summary, the Court of Appeal determined:
- The Department did not abuse its discretion by relying on the California Air Resources Board’s Climate Change Scoping Plan — rather than the state’s 2020 and 2050 greenhouse gas (GHG) emission reduction targets — as the threshold of significance for evaluating the cumulative impacts on climate change resulting from project-related GHG emissions.
- Substantial evidence, in the form of analyses showing that growth was scheduled to outpace logging across MRC’s ownership, supported the Department’s finding that the project’s cumulative impacts on global warming would be insignificant.
- The Department does not have a duty to enforce mitigation and monitoring of potential impacts on climate change if there are no significant cumulative impacts. Additionally, THP 80 requires that all future MRC timber-harvesting plans and projects be subject to environmental review.
Background for Appeal
On July 23, 2014, MRC submitted THP 80 to Cal Fire. About a week later, Cal Fire instigated an extensive review of THP 80, which ultimately included gathering input from other natural resources agencies, undertaking several rounds of revisions, and providing two opportunities for public comment. Cal Fire officially approved THP 80 on July 30, 2015, and Petitioner timely filed suit. Petitioner argued that THP 80 was deficient in the following ways:
- Assessing the cumulative impacts on northern spotted owls
- Assessing the cumulative impacts on GHG emissions
- Failing to comply with Forest Protection Rules regarding protection for watersheds with listed anadromous salmonids
After a contested hearing, the trial court denied the petition on April 18, 2016, determining that Cal Fire, in approving THP 80, had proceeded in the manner required by law and relied upon substantial evidence. On April 29, 2016, Petitioner filed a timely notice of appeal. On the same date, Petitioner also filed a petition for a stay of timber harvesting and for a writ of supersedeas, again alleging deficiencies in Cal Fire’s assessment of the cumulative impacts on northern spotted owls and GHG emissions. After first granting a temporary stay, the Court of Appeal denied the petition and dissolved the stay on June 9, 2016. This appeal thus proceeded.
Timber-Harvesting Plans and CEQA Review
The preparation and approval of a timber-harvesting plan under the Forest Practices Act is the functional equivalent of, and an adequate substitute for, CEQA’s required environmental impact report (EIR) process. CEQA mandamus challenges are reviewed de novo by appellate courts for prejudicial abuse of discretion. If substantial evidence supports an agency’s decision, no abuse of discretion has occurred and the decision must be upheld.
Use of the Scoping Plan as a Threshold for Significance
In assessing the significance of GHG emissions associated with THP 80, Cal Fire relied on the California Air Resources Board’s Climate Change Scoping Plan. Petitioner argued that the Scoping Plan was an inadequate threshold because agencies routinely rely on the state’s 2020 and 2050 GHG emissions targets when evaluating climate change impacts. Citing Center for Biological Diversity et al. v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204, 223, Petitioner further asserted that the California Supreme Court has found that the 2020 and 2050 targets are an appropriate baseline. The Court of Appeal rejected this argument, noting that while the targets may be used, Center for Biological Diversity does not require that they be used. The administrative record showed that Cal Fire explained in its responses to public comments that the Scoping Plan was used because it specifically recognizes the importance of forestry practices in meeting the state’s climate goals. The Court of Appeal agreed that this approach was defensible and based on substantial evidence.
Adequacy of Data Supporting Finding of No Significant Impacts
Due to the condensed timing of logging — as compared with slow, steady, and gradual forest growth — THP 80 would result in short-term GHG emission increases. Petitioner argued that, because of environmental “tipping points” associated with certain total atmospheric levels of GHG concentrations, near-term positive net carbon emissions represent significant environmental harm regardless of whether long-term sequestration exceeds short-term emissions. Documents in the administrative record quantitatively demonstrated that emissions associated with THP 80 would be offset by sequestration associated with growth from 2016 to 2020, a period already underway. The Court of Appeal pointed out that assessments of cumulative impacts must be guided by practicality and reasonableness, and found that MRC’s decision to analyze emissions and sequestration over the 2016-2020 period was in accordance with these standards.
Petitioner also argued that it was improper for MRC and Cal Fire to consider the sequestration effects of forest growth across MRC’s entire property, when logging covered by THP 80 would take place only in one subsection. In response to similar comments, Cal Fire asserted that this methodology neither understates the emissions — for instance, by comparing the emissions with other state, national, or global figures — nor overstates the emissions by overly limiting the assessment area. The Court of Appeal found that this approach met the standards of practicality and reasonableness, and that Cal Fire’s finding of no significant impacts was based on substantial evidence.
Enforceable Mitigation Requirements
Finally, Petitioner argued that the future growth MRC relied on to offset the effects of THP 80 is not enforceable through incorporated mitigation measures. The Court of Appeal rejected this argument on the grounds that there is no duty to mitigate if there are no significant impacts. Further, per the terms of THP 80 and the Forest Preservation Act, all future logging projects will also be subject to environmental review.
Accordingly, the Court of Appeal affirmed the trial court’s judgment upholding the Department’s approval of THP 80.
- Opinion by Justice Jenkins, with Presiding Justice Siggins and Justice Pollack concurring.
- Trial Court: Superior Court of Mendocino County, Case No. SCUK-CVPT-15-66284, Judge TKTKKT.
[i] California court decisions on California Environmental Quality Act (CEQA) related cases can impact business not only in California, but more broadly in other US jurisdictions (e.g., under the US National Environmental Policy Act (NEPA), though statutory provisions may differ). Latham’s case summary series provides a comprehensive archive of both published and unpublished cases, in order to track judicial interpretations of CEQA and new legal developments. Unpublished or “non-citable” opinions are opinions that are not certified for publication in Official Reports and generally may not be cited or relied on by other courts or parties in any filing with California courts in other court proceedings. (see California Rules of Court, rule 8.1115).
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