12 Cal. App. 5th 52
Cal. Ct. App. 5th2017Background
- California's Global Warming Solutions Act authorized ARB to adopt Low Carbon Fuel Standard (LCFS) regulations to reduce transportation greenhouse gases; original LCFS adopted 2009 (effective 2010).
- In Poet I (2013) this court held ARB violated CEQA by deferring analysis/mitigation of possible NOx increases from increased biodiesel use, and directed a writ (Feb 2014) requiring ARB to address whether the project would have significant NOx impacts, make findings supported by substantial evidence, and adopt mitigation if needed.
- ARB readopted modified LCFS and adopted Alternative Diesel Fuel (ADF) regulations in 2015 (effective Jan 1, 2016) and issued a Final Environmental Analysis using a 2014 baseline for NOx emissions.
- Plaintiffs challenged ARB’s return to the writ, arguing ARB improperly defined the CEQA “project” to exclude the original 2009 regulations, used an improper (2014) baseline, and therefore failed to cure the CEQA violation identified in Poet I.
- The trial court discharged the writ; this appeal asks whether ARB’s disclosures satisfied paragraph 3 of the writ and, if not, what remedy is appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of “project” in paragraph 3 | "Project" includes the original 2009 LCFS, the 2015 readoption, and ADF rules — the whole agency action; ARB must analyze impacts for the whole project. | "Project" covers only the 2015 rulemaking (future impacts); paragraph 3 need not revisit effects of the 2009 regulations. | Court: "project" means the whole of ARB’s regulatory activity (original regs, 2015 regs, ADF). ARB's narrower construction was incorrect. |
| Proper baseline for NOx analysis | Baseline must be existing conditions when environmental review began (pre-2009 or similar); 2014 baseline improperly masks emissions increases caused by original LCFS. | Using a 2014 baseline is permissible (analysis commenced then) and more informative; Poet I did not mandate an earlier baseline. | Court: Ordinary baseline is conditions when original CEQA review commenced; ARB failed to justify departure to 2014. Use of 2014 baseline was improper and misleading. |
| Adequacy of ARB's NOx findings and CEQA compliance | ARB’s Final Environmental Analysis understates LCFS-attributable NOx increases, fails to allocate causation among factors, and therefore fails to make findings supported by substantial evidence or adopt mitigation if needed. | ARB contends its findings (that biodiesel-related NOx would decline from 2014 baseline and not be significant) are supported by substantial evidence and satisfied the writ. | Court: ARB did not comply with paragraph 3 or CEQA — the NOx analysis was flawed (wrong project scope and baseline), prejudicial, and the writ should not have been discharged. |
| Appropriate remedy | Plaintiffs seek relief (e.g., suspension of tainted portions) to compel full CEQA compliance and protect public information. | ARB argues appellate relief cannot alter the 2015 regulation absent separate challenge; contends suspension is unnecessary and would cause disruption. | Court: Reverse discharge order; remand with modified writ requiring ARB to redo NOx analysis using proper baseline (no later than 2010 unless justified), make findings, and if needed adopt mitigation. ADF rules remain in effect; LCFS provisions for diesel/substitutes are severable but not suspended—2017 diesel standards frozen pending compliance; suspension may follow if ARB fails to proceed diligently and in good faith. |
Key Cases Cited
- POET, LLC v. State Air Resources Bd., 218 Cal.App.4th 681 (Cal. Ct. App.) (Poet I — initially identifying CEQA defects in ARB's LCFS and directing remedial writ)
- Neighbors for Smart Rail v. Exposition Metro Line Const. Auth., 57 Cal.4th 439 (Cal.) (baseline principles; existing-conditions norm and when future baseline may be used)
- Communities for a Better Environment v. S. Coast Air Quality Mgmt. Dist., 48 Cal.4th 310 (Cal.) (existing physical conditions baseline and agency discretion on measurement technique)
- Tuolumne County Citizens for Responsible Growth v. City of Sonora, 155 Cal.App.4th 1214 (Cal. Ct. App.) (test for what acts constitute the whole CEQA project: whether acts are related)
- Sanders v. City of Los Angeles, 3 Cal.3d 252 (Cal.) (appellate relief after erroneously discharged writ; courts may direct further orders to compel obedience)
- Calfarm Ins. Co. v. Deukmejian, 48 Cal.3d 805 (Cal.) (severability: grammatical, functional, volitional separability)
- California Redevelopment Assn. v. Matosantos, 53 Cal.4th 231 (Cal.) (severability analysis and role of severability clause)