Center for Biological Diversity v. Department of Fish & Wildlife

S217763. Nov. [No. 2015.] al.,

CENTER FOR BIOLOGICAL DIVERSITY et Plaintiffs and v. Respondents, WILDLIFE,

DEPARTMENT OF FISH AND Defendant and Appellant; COMPANY, THE NEWHALL LAND AND FARMING Real Party Interest and Appellant.

Counsel Gibson, Mattox; L. Thomas R. John H. Thomas Law Wendy Bogdan, Group, Thomas, Crocker, Tina A. Ashle T. R. M. Amy Higuera Meghan for Defendant and Dunnagan Appellant. Watkins,

Latham & W. Garrett and Takahashi for California Christopher Taiga Chamber of Commerce as Amicus Curiae on behalf of Defendant and Appellant. III

Holland & Jennifer L. Hernandez and Charles L. Coleman for San Knight, Air Pollution Control District and of Kern as Amici Joaquin Valley County Curiae on behalf of Defendant and Appellant. Air

Kathrine Pittard for Sacramento Metropolitan Quality Management District as Amicus Curiae on behalf of Defendant and Appellant. Nossaman, Thornton, Clark; Robert D. N. Best Best & Stephanie Krieger, Morris; DeBaun, Schiller; Steven C. B. Stefanie D. Marcia Charity Scully, Horton; Saladino, (Los Robert C. Mark J. Counsel Charles County Angeles), Safer, Counsel, Stamm, M. Assistant Ronald W. County Principal Deputy Counsel; and Amelia T. for Foothill/Eastern County Minaberrigarai Corridor San Hills Corridor Transportation Agency, Joaquin Transportation Kern Water Water District of Southern Agency, County Agency, Metropolitan California, Commission, Riverside Los County Transportation Angeles County and State Water Contractors as Amici Metropolitan Transportation Authority Curiae on behalf of Defendant and Appellant.

Cox, Nicholson, Zischke, Castle & Michael H. Andrew B. Linda C. Sabey, Association, Klein and James M. Purvis for California Building Industry Foundation, Defense Association of Building Industry Legal Building Industry Area, California Business Association and California Bay Properties Association of Realtors as Amici Curiae on behalf of Defendant and Appellant. Austin, Haddad, Goodman, Mark E. Michelle B. Wen W. Shen and

Sidley David L. Anderson for Governors Pete Wilson and George Deukmejian, Gray Davis as Amici Curiae on behalf of Defendant and Appellant. Hubbard; Ballance, Dillon,

Gatzke Dillon & Mark J. David P. Morrison & Foerster, Leoni, Miriam A. Nielsen Merksamer Parinello Gross & Vogel; Scotland; Arthur G. Brand and Patrick G. Mitchell for Real Downey Party Interest and Appellant. Poole,

Poole & David S. John H. and Samuel R.W. Price for Shaffery, Shaffery Santa Clarita Economic as Amicus Curiae on Valley Development Corporation behalf of Defendant and and Real Interest and Appellant Party Appellant. Prabhala; Buse, Keats, John Kevin P. Aruna Law Office of Adam Bundy, Keats; Weiner; Clinic, Adam Jason A. Frank G. Wells Environmental Law Hecht; Carstens, Sean B. Chatten-Brown and Jan Chatten-Brown and Doug Carstens for Plaintiffs and Respondents. Tribe, Ann for the Karuk the Kashia Band of Porno Indians of

Courtney Coyle Rancheria, Indians, Stewarts Point the Pala Band of Mission the Pechanga Indians, Band of Luiseño the Santa Ynez Band of Chumash Indians and the Council of Kitanemuk & Yowlumne Indians of the Tinoqui-Chaloa Tejón Former Sebastian Indian Reservation as Amici Curiae on behalf of Plaintiffs and Respondents.

Matthew for Sierra Club as Amicus Curiae on behalf of Plaintiffs and Vespa Respondents. Allen; H. Austin Sutta and Sharon E. for Environmental

Lucy Duggan Center, Trout, Inc., Protection Information Audubon California and California as Amici Curiae on behalf of Plaintiffs and Respondents. H. Calfee for Governor’s Office of and Research and

Christopher Planning California Natural Resources as Amici Curiae on behalf of Plaintiffs Agency and Respondents.

Burke, Sorensen, Williams & Kevin D. for Siegel Stephen Velyvis League Cities, Counties, of California California State Association of California Districts Association and Southern California Association of Special Governments as Amici Curiae. Law and Susan

Brandt-Hawley Group Brandt-Hawley Planning Conservation as Amicus Curiae. League

Opinion WERDEGAR, J. case three issues of presents regarding adequacy This an environmental for a land northwest impact report large development Los each issue under the California Environmental Angeles County, arising Code, (CEQA; (1) Act Pub. Resources 21000 et Does the Quality seq.): § environmental determine the would not impact report validly development the environment its of significantly impact by discharge greenhouse gases? fish, (2) Are measures for of a freshwater mitigation adopted protection stickleback, unarmored because involve of threespine improper they taking (3) the fish the Fish and Game Code? Were com- prohibited by plaintiffs’ ments on two other areas of submitted too late disputed impact environmental review to exhaust their administrative remedies under process Public Resources Code section 21177? conclude, first,

We that as to emissions the environmental a criterion of impact report employs legally permissible significance— whether the was consistent with statewide emission reduction meeting that the emissions would not be goals—but report’s finding project’s under that criterion is not a reasoned significant supported by explanation Second, based on substantial evidence. we conclude the report’s mitigation stickleback, measures for and relocation of the calling capture fully under Fish and Game Code section subdivision protected species (b)(9), (a) themselves constitute a under subdivision of the taking prohibited same statute. we hold that under the circumstances of this case Finally, exhausted their administrative remedies certain claims of plaintiffs regarding them an comment on the final deficiency by raising during optional period report. Background Factual and Procedural

I. (DFW, of Fish and Wildlife Department formerly Department Game) Fish and and the United States Army Corps Engineers prepared EIR)1 (the environmental statement/environmental joint impact impact report (the for two natural resource “Resource plans Management Development Plan”) Plan” and the Conservation related to a land “Spineflower proposed called Newhall Ranch. To be over about 20 on development developed years participation Federal in environmental evaluation was called for under the National (NEPA; Policy seq.) proposed Environmental Act of 1969 42 U.S.C. 4321 et because the § requires permits agencies. provide infrastructure from federal Both and NEPA cooperation agencies projects, including between state and federal in environmental review of Code, 21083.6, 21083.7; (Pub. preparation joint documents. Resources 42 U.S.C. §§ generally joint prepared simply We refer to the document in this case as the EIR CEQA. solely arising because we discuss issues under 214 12,000

almost acres the Santa Clara River west of the of Santa along City Clarita, 20,885 the Newhall Ranch would consist of proposed up dwelling 58,000 units residents as well as commercial and business housing nearly uses, schools, courses, and other facilities. The golf parks community project and owner of Newhall Ranch is real interest The Newhall applicant party (Newhall). Land and Farming Company

Newhall Ranch’s environmental were studied potential impacts previously the of Los connection with the County Angeles county’s approval EIR of a land use for the the draws on plan proposed development; present but is of the environmental documentation for that independent approval. EIR DFW acted as the lead state the because the agency preparing project (i.e., the Resource and Plan and the flower Management Development Spine Plan) Conservation called for DFW’s concurrence a streambed alteration and issuance of incidental take for agreement permits protected species. DFW has direct over resource Although authority only biological impacts from the to evaluate all environmental project, agency attempts from the and the Newhall Ranch that would be impacts project development facilitated by project approval. (the

DFW and the United States the lead Army Corps Engineers Corps), EIR in EIR in federal issued a draft 2009 and a final June 2010. agency, April EIR, In December DFW certified the made the findings required by CEQA as to alternatives and significant impacts, mitigation, overriding considerations, here, Of relevance DFW found that approved project. could the unarmored stickleback significantly impact threespine but that measures would avoid or lessen that adopted mitigation substantially and that into account the commitments and impact, “taking applicant’s design standards,” Newhall Ranch’s emissions of existing regulatory greenhouse would have a less than on the climate. gases significant impact global Plaintiffs DFW’s actions for writ of mandate.2 The challenged by petition court on several The Court of superior granted petition grounds. Appeal reversed, all of claims. We rejecting plaintiffs’ granted plaintiffs’ for review. petition Discussion

II. our review of DFW’s actions can be general principles governing In stated. an determination or simply reviewing agency’s nonadjudicative River, Biological Diversity, Plaintiffs are the Center for Friends of the Santa Clara Santa Environment, Organization Planning Society, Clarita California Native Plant Wishtoyo Coastkeeper. Foundation/Ventura

215 CEQA, decision for with we ask whether the has compliance agency prejudi- discretion; “if abused its such an abuse is established has cially agency if not a manner law or the determination or decision proceeded required by Code, 21168.5.)3 (Pub. is not substantial evidence.” Resources supported by § discretion, In whether there has been an abuse of we review the determining action, not the trial court’s decision. that sense agency’s appellate “[I]n CEQA review under is de novo.” Area judicial (Vineyard Citizens Growth, 412, (2007) Inc. v. Rancho Cordova 40 Cal.4th Responsible City of 821, Citizens)) 427 150 P.3d Area Cal.Rptr.3d (Vineyard [53 709] however, On the standard of particular questions compliance, review on “whether the claim is one of depends predominantly improper Citizens, or a over the facts.” Area 40 procedure dispute (Vineyard supra, 435.) Cal.4th at “While we determine de novo whether the has agency the correct ... we accord deference to the employed procedures, greater In substantive factual conclusions. for substantial evi agency’s reviewing dence, court not set aside an of an reviewing ‘may agency’s approval on the that an conclusion would have been or more ground opposite equally reasonable,’ for, on factual our task ‘is not to questions, weigh conflicting (Laurel evidence and determine who has the better argument.’ Heights University (1988)] Assn. v. 47 Cal.3d [Improvement Regents of of California 426, [376,] 278].)” (Ibid.) 393 764 P.2d Cal.Rptr. [253 A. The EIR’s Determination the Greenhouse Gas Emissions Project’s

WillNot Have a Environmental Significant Impact

1. Background

In California’s landmark climate legislation addressing global change, Code, (Health California Global Solutions Act of 2006 & Saf. Warming 488, Bill 38500 et Statutes Assem. seq.), chapter page (enacting § Sess.) 32)), (2005-2006 Bill No. 32 our Reg. (Assembly Legislature emphati- established as state the achievement of a substantial reduction cally policy Code, (Health the emission of & Saf. gases contributing global warming. 38500, 38501.) Bill More 32 calls for reduction of specifically, Assembly §§ Code, (Health such emissions to 1990 levels 2020. & Saf. year Board) (the Air Air The law the State Resources Board designates § {id., as the state emissions agency charged regulating greenhouse gas 38510) Air and calls for the Board to coordinate with other state agencies § (id.. 38501, (1)). the state’s reduction subd. implement goal Bill Air Under Board was to determine as Assembly required as the statewide level of emissions accurately possible unspecified statutory All further references are to the Public Resources Code. 216

1990 and to on that basis a statewide emissions limit to be achieved approve Code, 38550.) (Health Air 2020. & Saf. The Board was by required § 1, 2009, and for prepare approve by January “scoping plan” achieving in “maximum feasible and cost-effective” reductions technologically green- {Id., 38561, (a).) house emissions 2020. subd. gas by Plan, In Air its 2008 Climate Board Change Scoping explained emissions to 1990 levels means “[r]educing greenhouse gas cutting approxi- 2020, from business-as-usual emission levels for mately percent projected Bd., (Air or about 15 from levels.” Climate percent today’s Change Scoping 2008) Plan).) (Dec. Plan Executive ES-1 The Summary, p. (Scoping Scoping Plan then set out a of emissions reduction “comprehensive array approaches and tools” to meet the goal, including expanding energy efficiency programs, mix a statewide renewable of 33 achieving energy percent, developing our estab- regional partners cap-and-trade program greenhouse gases, in for emissions and lishing targets policies transportation implementing clean fees on certain existing transportation programs, creating targeted {Id., ES-4.) activities emissions. ES-3 to affecting pp. here,

The Plan’s “business-as-usual” model is as it Scoping important formed the basis for the EIR’s present greenhouse gas significance analysis. limit, Air The Board had identified a 2020 annual emissions previously year emissions, to its estimate of statewide 1990 of 427 million metric tons equal Plan, 5.) In of carbon dioxide equivalent (Scoping supra, p. (MMTC02E). Plan, the board estimated emissions economic sector Scoping by 2002 to totaled 469 Those period finding they annually. MMTC02E annual emissions were then forward to the projected year employing estimates, and economic a business-as-usual population growth yielding {Id., of 596 The of 427 is about figure p. target MMTC02E. MMTC02E Air below the 2020 forecast of 596 Board percent MMTC02E, giving the 30 reduction earlier. percent goal quoted Plan’s 2020 forecast is referred to as a “business-as-usual” Scoping because it assumes no conservation or efforts

projection regulatory beyond what was when the forecast was made. It the emissions place “represent[s] that would be to occur the absence of GHG expected any [greenhouse gas] Plan, F, reductions actions.” California’s Greenhouse (Scoping supra, appen. F-3.) Gas Emissions For the emissions forecast for Inventory, p. example, assumes “all demand 2020 will electricity generation growth electricity by be met in-state natural and the estimate for gas-fired power plants” mix on-road vehicle emissions “assumes no vehicle fleet over change {Id., F-4.) time.” Bill Air

Neither 32 nor the Board’s Plan set out a Assembly Scoping mandate or method for emissions from a analysis

217 amendment, however, CEQA A 2007 proposed project. required prepara- tion, of of adoption periodic update guidelines mitigation greenhouse 2007, 185, 1, 2330, Code, (Stats. ch. Pub. Resources gas impacts. p. adding § 2010, 21083.05.) In the Natural Resources a new Agency adopted § on of from guideline determining significance impacts greenhouse gas 14, 15064.4.)4 (Cal. emissions. Code tit. Regs., §

The new that a lead should to guideline provides agency attempt “describe, calculate or estimate” the amount of a greenhouse gases project emit, will but have discretion how to do so. recognizes agencies 15064.4, (Guidelines, (a).) subd. It on to that when goes provide assessing emissions, of should consider significance greenhouse gas agency “(1) these factors others: The extent to which the increase among project may or reduce emissions as to the environmen greenhouse gas compared existing (2) tal Whether the emissions exceed a threshold of setting; project [¶] (3) that the lead determines to the significance agency applies project[;] [¶] The extent to which the or project complies regulations requirements statewide, or local for the reduction or adopted implement regional, plan emissions. Such must be mitigation greenhouse gas requirements adopted the relevant review and must public agency through public process reduce or incremental contribution of mitigate project’s greenhouse gas If emissions. there is substantial evidence that the effects of a possible are still considerable particular project cumulatively notwithstanding compli EIR ance with the or an must be adopted regulations requirements, prepared (Id., (b).) for the subd. project.”

2. The EIR’s Determination Significance In EIR order to evaluate the emissions project’s greenhouse gas impact, the emissions on the site attempts quantify currently generated its uses and the emissions that would be full existing generated by develop- ment of the Newhall Ranch Annual emissions from the community. existing 10,272 uses oil wells and are estimated at metric tons (primarily agriculture) which the treats as zero for of the conservatively purposes C02, The annual emissions from Newhall Ranch impact analysis. 269,053 projected equivalent at full build-out are to be metric tons of C09 (MTC02E). (Guidelines), CEQA guidelines promulgated by Agency the state Natural Resources Regulations, seq., and found in title 14 of the California Code of section 15000 et are statutorily provide public agencies determining mandated to “criteria for to follow in whether ” 21083, (§ proposed project may ‘significant or not a have a effect on the environment.’ (b).) CEQA, give great weight interpreting except they subd. We the Guidelines where are 428, 5; Citizens, clearly (Vineyard supra, unauthorized or erroneous. Area 40 Cal.4th at fn. University (1993) Heights Improvement Regents

Laurel Assn. v. 6 Cal.4th of California 502].) Cal.Rptr.2d 864 P.2d [26 269,053 EIR asserts that while this annual emissions increase of conditions,” is “an obvious on-site the change existing, global MTC02E nature of climate and the “absence of scientific and factual informa- change tion” on the amounts of emissions significance particular greenhouse gas make the determination.” The change support significance “[in]sufficient EIR on to consider “whether the emis- accordingly goes proposed Project’s sions . . . would the State of California’s with the impede compliance AB emissions reduction mandate established 32.” statutory The EIR’s method for whether the would determining impede use, Bill Air achievement of 32’s is modeled on the Board’s Assembly goals Plan, in its to a “business-as-usual” as a Scoping comparison projection (determined measure of the emission reductions needed to meet the 2020 goal earlier, usual). to be a reduction of 29 from business as As percent explained the Plan forecasted statewide emissions under a Scoping greenhouse gas in business-as-usual scenario which no additional actions were regulatory Ranch, EIR taken to reduce emissions. The does the same for Newhall 390,046 “if the emissions estimating per year proposed MTC02E Air were constructed consistent with Project resulting development [the taken, for the CARB 2020 NAT action or business assumptions Board’s] [no as scenario.” Because the EIR’s estimate of actual annual project usual] (269,053 emissions is 31 below its business-as-usual MTC02E) percent (390,046 Air estimate Board’s determination of a MTC02E), exceeding statewide, reduction from business as usual needed percent concludes the emissions will not project’s likely greenhouse gas impede Bill achievement of 32’s and are therefore less than Assembly goals signifi- CEQA cant for purposes.

3. Analysis in We consider whether DFW abused its discretion determining proj- ect’s emissions would not have a environmental significant CEQA either because it failed to the manner impact, proceed required by or because it made the no determination without significant impact 21168.5.) (§ of substantial evidence the administrative record. support Plaintiffs contend the EIR’s no conclusion resulted from significant impact use of a baseline for on this court’s legally improper comparison. Relying Quality decision Communities a Better Environment v. South Coast Air for (2010) Dist. 48 Cal.4th 310 226 P.3d Management Cal.Rptr.3d [106 985] Environment), (Communities a Better which we disapproved defendant district’s use of emission levels allowed under pollutant prior not actual conditions—as a permits—but reflecting existing comparative evaluation, baseline for a DFW erred significance plaintiffs argue to the business-as-usual determining significance by comparison hypothetical scenario rather than emissions on by comparison existing greenhouse gas site. project Air

DFW contends it relied on devised properly methodology Board, the state with on climate Newhall agency greatest expertise change. defends the EIR’s and conclusion that DFW approach extensively, arguing acted within its discretion under Guidelines section 15064.4 adopting Bill with 32’s as its criterion and compliance Assembly goals significance that both DFW’s choice of and its conclusion of no methodology significant should be reviewed for substantial evidence. impact only support by We with the broadest Did DFW abuse its discretion begin question posed: Bill 32’s reduction as its adopting consistency Assembly goals criterion for the emissions? We review significance project’s greenhouse gas novo, CEQA this issue de as it is of correct predominantly legal question Environment, (Communities a Better 48 Cal.4th at procedure. supra, for 319; Citizens, Area 40 Cal.4th at Vineyard supra, p. Before considering principal statutory regulatory provisions gov- 21083.05; Guidelines, CEQA (§ emissions erning analysis 15064.4), we address two related of the aspects greenhouse gas problem § CEQA that inform our discussion of significance.

First, because of the scale of climate one global change, any project’s contribution is to be itself. The for unlikely significant by challenge is to determine whether the of the emissions of purposes impact project’s considerable, in is the sense that “the incre greenhouse gases cumulatively mental effects of individual are considerable when viewed [the] connection with the effects of the effects of other current past projects, (§ (b)(2); and the effects of future subd. projects, probable projects.” Guidelines, 15064, (h)(1).) see subd. “With to climate an respect change, individual emissions will most not have project’s likely any appreciable themselves, on the but will contribute to the impact global problem by they cumulative caused emissions from other significant impact by greenhouse gas sources around the therefore becomes whether the globe. question incremental addition of is consider project’s greenhouse gases ‘cumulatively (Crockett, able’ of the and thus Address light global problem, significant.” CEQA: Greenhouse Gas Emissions Under ing Significance of California’s 2011) 4 Search in an Uncertain World Golden Regulatory Certainty (July (hereafter Gate U. Envtl. L.J. 207-208 Addressing Significance of Emissions).) Greenhouse Gas

Second, of climate and the fact that carbon global scope change dioxide and other once released into the are greenhouse gases, atmosphere, 220 in

not contained the local area of their emission means that the to be impacts evaluated are also rather than local. For air global many pollutants, of their environmental on where significance impact may depend greatly they emitted; are for it does not. For like the greenhouse gases, projects, present residential and commercial which are to accommodate development, designed in California’s and economic this fact long-term growth population activity, rise to an that a certain amount of emissions gives argument greenhouse gas view, is as inevitable as Under this criterion population growth. significance in framed terms of is to a numerical threshold efficiency superior simple CEQA because is not intended as a control measure. population in makes this its to Center for point response plaintiff Biological “[Wjhen comments on the Diversity’s greenhouse gas significance analysis: emissions), (such location does not matter as the case of GHG evaluation of via an metric is . . . project significance efficiency appropriate. [¶] [F]or (such environmental issue as climate an absolute global change), utilizing CEQA number as a criterion to use to significance equates attempting note, Of the future residents and of discourage population growth. occupants enabled would exist and live somewhere development by Project approval there,’ if else this is not Whether ‘here or GHG emissions Project approved. associated with such will occur.” population growth

These considerations militate favor of consistency meeting Bill 32’s statewide as a criterion for Assembly goals permissible significance emissions. our statewide reduction does not Meeting goals preclude Rather, all new Plan—the state’s for development. Scoping roadmap Bill 32’s continued meeting Assembly target—assumes growth depends on increased and conservation land use and from efficiency transportation Plan, (See all Californians. ES-1 Scoping supra, pp. [meeting Assembly Bill 14 ‘“means our annual emissions of tons of carbon goal reducing man, dioxide woman and child California down to equivalent every Plan, 2020”]; about 10 tons per person by Scoping pp. [‘“Everypart California’s needs to a role economy play reducing greenhouse gas emissions.”], 42 measures for both new and [outlining energy efficiency To the extent a existing buildings].) project incorporates efficiency conservation measures sufficient to contribute its of the overall portion reductions one can that the greenhouse gas necessary, reasonably argue considerable,’ ‘“isnot because it is project’s impact ‘cumulatively helping solve the cumulative emissions as envisioned problem greenhouse gas Emissions, California law.” Greenhouse Gas (Addressing Significance of 4 Golden Gate U. Envtl. L.J. at supra,

Given the some emissions from new reality growth, and commercial are inevitable. The critical housing developments

221 is the cumulative of a emis- question significance project’s greenhouse gas sions, and from a climate of view it does not matter where change point circumstances, the state those emissions are Under these produced. evaluating of a residential or mixed-use significance project’s greenhouse gas emissions their effect on the state’s efforts to meet its by long-term goals makes at least as much sense as them an absolute measuring against numerical threshold. Bill with 32’s statewide

Using consistency Assembly goal green reduction, threshold, house rather than a numerical as a gas significance criterion is also consistent with the broad section guidance provided by CEQA 15064.4 of the Guidelines. As the section issuing agency explained, CEQA 15064.4 was drafted to reflect “the that there is no existing principle ” (Natural iron-clad definition of Resources Final ‘significance.’ Agency, CEQA Statement of Reasons for Action: Amendments to the State Regulatory Guidelines and of Greenhouse Gas Emissions Addressing Analysis Mitigation 2009) Reasons); (Dec. (Final Pursuant to SB 97 20 Statement of cf. p. 21083.05 Guidelines for [requiring periodic update mitigation § emissions to reflect new information or criteria established greenhouse gas Board].) Air Section 15064.4 was not intended to restrict closely agency emissions, discretion a method for but choosing assessing greenhouse gas rather “to assist lead and “all that agencies” investigating disclosing they can” emissions reasonably regarding project’s greenhouse gas impacts. Reasons, 20.)5 (Final Statement of at supra, While Guidelines section 15064.4 states a lead “should con agency sider,” factors, other extent to which the increase or among project may “[t]he reduce emissions as to the environmental greenhouse gas compared existing “[wjhether (id., (b)(1)) subd. emissions exceed a setting” threshold of that the lead determines to the significance agency applies (id., (b)(2)), subd. the section does not mandate the use of absolute project” numerical thresholds to measure the emis significance (b) sions. The factors listed subdivision are not exclusive. are rather They intended “to assist lead information agencies collecting considering brief, Agency argues In an amicus curiae the Natural Resources that because Guidelines comment, yet public section 15064.4 was not in force when DFW circulated its draft EIR for agency obliged comply regulation. the lead was not with that Because we hold the regulation prohibit consistency Assembly goals did not reliance on Bill 32’s as a criterion, significance and further hold DFW’s use of a business-as-usual model was deficient 225-228), independent (post, pp. for reasons of Guidelines section 15064.4 we need not section, 18, 2010, operative applied decide whether the new Guideline which was March to the approval final EIR circulated in June 2010 and to DFW’s December 2010 (See of Newhall Ranch. Guidelines, Guidelines].) [prospective application of amendments to 222

relevant to a incremental contribution of GHG emissions and the project’s Reasons, (Final overall context of such emissions.” Statement of at supra, p. EIR

The discloses the increase emissions over present project’s likely environment, the the reader that the will increase existing informing project 269,053 emissions to the greenhouse gas compared existing MTC02E 15064.4, (Guidelines, (b)(1)), environmental subd. but declines to setting § consider the based on the size of that increase alone impact significant ‘“becauseof the absence of scientific and factual information when regarding of emissions become As for particular quantities greenhouse gas significant.” (id., (b)(2)), a threshold subd. asserts that no had significance agency an threshold. adopted applicable

Plaintiffs these statements as insufficient to the EIR’s challenge justify choice of that California air control officials methodology, noting pollution and air districts have made several for numerical thresholds. quality proposals But efforts at given multiple agencies’ framing greenhouse gas signifi- cance issues have not coalesced into set of numerical yet any widely accepted thresholds, but have ‘“acertain level of consensus” on significance produced Bill the value of as a criterion Assembly consistency (Addressing Emissions, Greenhouse Gas Golden Gate U. Significance supra, 209), Envtl. L.J. at we cannot conclude DFW’s choice of discretionary Bill 32 as a criterion for this Assembly consistency significance 15064.4, (b)(1) (2). violated Guidelines section subdivision or (b)(3) Subdivision of Guidelines section 15064.4 states the lead agency should also consider extent to which the project complies “[t]he statewide, or to a or regulations requirements adopted implement regional, local for the reduction or emissions.” plan mitigation Bill 32 did not create a set of or Assembly ‘“regulations requirements” 15064.4, indeed, (Guidelines, (b)(3)); subd. it is not implementing ‘“plan” but rather a statement of Plan plan policies objectives. Scoping Bill to 32 is a adopted pursuant Assembly plan reducing greenhouse gas emissions, but does not itself establish the which it is to be regulations by rather, it sets out how and new ones implemented; existing regulations, yet Plan, be at the time of the will be used to reach adopted Scoping Assembly Bill 32’s emission reduction At the time the Natural Resources goal. Agency 15064.4, Guidelines section that the promulgated agency explained Plan not be for use Scoping “may appropriate determining significance of individual . . . because it is at this and relies on projects conceptual stage the future identified development regulations implement strategies Reasons, 26-27.) (Final Plan.” Statement of Scoping supra, pp. 223 short, In Bill neither 32 nor the Plan establishes Assembly Scoping for the statewide regulations implementing, specific projects, Legislature’s for emissions. Neither constitutes a set of goals reducing greenhouse gas or to a statewide reduction “regulations requirements adopted implement” 15064.4, (b)(3). within the of Guidelines section subdivision plan meaning however, That does not or a lead guideline, expressly impliedly prohibit Bill from 32 themselves to determine agency using Assembly goals whether the emissions are As project’s projected greenhouse gas significant. brief, in noted the Natural Resources its amicus curiae “a by Agency discussion of a with the State’s climate project’s consistency long-term CEQA,” stabilization . . . will often be . . . under objectives appropriate is “tailored . . . to a provided analysis specifically particular project.” Indeed, CEQA’s in to this manner is consistent with “inherent proceed if . . . that a is to address a cumulative a recognition plan place problem, new incremental addition to the will not be project’s problem ‘cumulatively if considerable’ it is consistent with the and is its fair share to plan doing achieve the Greenhouse Gas plan’s goals.” (Addressing Significance of Emissions, 210-211.) 4 Golden Gate U. Envtl. L.J. at For this supra, pp. well, reason as we conclude DFW’s choice to use that criterion does not CEQA. violate Court of decisions to consider this only published Appeal conclusion, have reached the same albeit with little discussion. question 832, (Friends (2013) Oroville v. Oroville 219 841 City Cal.App.4th [164 1]; Environmental Cal.Rptr.3d Responsible Equitable Citizens far City 327, (2011) v. Chula Vista 197 335-336 Development Cal.App.4th [127 435].) Cal.Rptr.3d A of time is order here. Plaintiffs do qualification regarding passage EIR, 2010, not claim it was for this issued to look forward improper only emissions, to 2020 for a on reductions and we guidepost CEQA therefore do not consider the whether question required Nevertheless, address the state’s 2020. over time goals beyond consistency will become a less definitive year goals guide, especially An EIR that will not for several long-term projects begin operations years. the near taking goal-consistency approach significance may future need to consider the effects on term emissions project’s meeting longer reduction targets.6 S-3-05, 1, signed by Schwarzenegger Governor’s Executive Order No. Governor on June 2005, targets percent by set reduction of 1990 levels 2020 and 80 below 1990 levels 2050.

Assembly goal any Bill 32 codified the 2020 but did not indicate intent to abandon the 2050 indeed, goal; Legislature cited the executive order and indicated its intent that the climate Code, (Health (i).) policy efforts the order initiated continue. & Saf. subd. More Plan, recently, update Scoping steep post-2020 in an to the the Air Board noted the need for proposed adopt “strong target” year reductions and the state mid-term for the in the Bd„ (Air range percent Update Change of 35 to 50 below 1990 levels. First to the Climate 2014) Scoping Building (May Plan: on the Framework Governor’s Executive Order CEQA in concluded DFW did not violation of its

Having proceed by criterion, Bill choice of as a we Assembly consistency significance contention that the violated proceed plaintiffs’ agency by comparing the emissions to a business-as-usual scenario project’s expected hypothetical in rather than to a baseline of emissions the environment. existing physical Environment, In Communities a Better 48 Cal.4th supra, refinery for to conduct a new some new and some sought permit process using existing boilers used for steam each of equipment, including existing generation, which was to an its maximum rate of subject existing permit setting 317-318.) (Id. at declaration the air operation. pp. negative regional in district for the the of the prepared project, determining significance emissions, oxide treated emissions that could be project’s nitrogen generated boilers at their maximum by existing operating together permitted capac- (a in condition that did not occur normal as of the baseline ity operation) part 318.) (Id. for environmental review rather than as of the part project. declaration that actual oxide Although negative acknowledged nitrogen emissions would increase under the an amount that would nor- project by be considered the declaration determined the emissions mally significant, were not because were below what could have been emitted significant they (Ibid.) boilers under the refinery’s existing permits.

We held the air district’s violated the rule approach expressed law, (a), Guidelines section subdivision as well as case that the baseline for a determination should be the comparative significance normally (Communities conditions a Better existing physical project’s vicinity. for Environment, 320-322.) 48 Cal.4th at supra, pp. “By comparing proposed to what could rather than to what was happen, actually happening, District set the baseline not to ‘established levels of a according particular use,’ but conditions allowable’ under the by ‘merely hypothetical permits. EIR, Like an an initial or declaration ‘must focus study negative [Citation.] environment, on to the not situations.’ impacts existing hypothetical [Cita (Id. at p. tion.]” we do not see the EIR’s here as

Contrary plaintiffs’ arguments, approach to that of the declaration Communities a Better comparable negative Environment, Environment. Unlike the air district Communities a Better for represented DFW does not claim its business-as-usual model “the physical environmental conditions ... as exist” at the time of environmental they B-30-15, 29, 2015, signed by April No. Governor Brown on endorsed the effort to set “an target Pending legislation codify interim of emission reductions for 2030.” would this goal, directing equivalent percent additional the Air Board to establish a 2030 limit to 40 (Sen. Bill (2015-2016 Sess.) 4.) Reg. below 1990 levels. No. 32 Rather, (Guidelines, (a).) subd. it a analysis. employs hypothetical business-as-usual emissions model as a means of merely comparing emissions to the statewide set under the project’s projected target Scoping Plan. The business-as-usual emissions model is used here as a comparative efforts, tool for and conservation not as a evaluating efficiency significance baseline.

The reduction from business as usual identified percentage by Scoping Plan is a measure of the reduction effort needed to meet the 2020 not an goal, to describe the level of emissions. attempt existing greenhouse gas Similarly, its calculation of reductions from business-as-usual employs project in emissions an to show the attempt project incorporates efficiency conservation measures sufficient to make it consistent with achievement of Bill 32’s reduction not to show the will not increase Assembly goal, in emissions over those environment. As dis- greenhouse gas existing earlier, cussed distinctive of the make aspects greenhouse gas problem with statewide reduction a criterion consistency goals permissible significance for such emissions. a scenario as a method of Using hypothetical evaluating and conservation measures does not violate proposed project’s efficiency Guidelines section 15125 or contravene our decision Communities Better Environment. conclusion, this we that DFW abused

Notwithstanding agree plaintiffs its discretion on the basis of the EIR’s business-as-usual finding, compari- son, that the emissions would have no project’s greenhouse gas cumulatively on the environment. We reach this conclusion because the significant impact administrative record discloses no substantial evidence that Newhall Ranch’s reduction of 31 to business as usual is project-level percent comparison Bill consistent with 32’s statewide of a 29 achieving Assembly goal percent usual, reduction from business as a lacuna both fail to dissenting opinions criterion, address. Even the EIR’s own the EIR’s using significance analysis fails to its conclusion of no support significant impact. Plan set out a statewide reduction and a framework for Scoping goal it—a set of drawn all

reaching broadly regulatory approaches covering if sectors of the California and fol- economy projected, implemented lowed, to result a reduction to 1990-level emissions 2020. The the overall level of conservation and year plan expressed efficiency as, measures, other reduction improvements required among percentage from a scenario which no additional actions were hypothetical regulatory taken. But the Plan nowhere related that statewide level of reduction Scoping effort to the of reduction that would or should be from percentage required in individual DFW or Newhall has cited the administra- projects, nothing tive record indicates the reduction from business as usual required percentage is the same for an individual as for the entire state project population economy.

Plaintiffs forward one reason to that the reduc- put ready suspect percent same, in tion is not the and that fact a of reduction be greater degree may needed from new land use than from the as a whole: projects economy new and infrastructure for maximum Designing buildings energy efficiency easier, occur, and renewable use is to be and is more energy likely likely than the same of older structures and achieving savings by retrofitting The California General’s Office made this while systems. Attorney point on an air district’s emissions reduction commenting greenhouse gas plan, letter one of the to DFW’s attention a comment on the plaintiffs brought if EIR: “The Staff seems to assume that new Report development [air district] usual,’ reduce emissions to ‘business as projects percent compared 2020 statewide of 29 below ‘business as usual’ will also be target percent achieved, Indeed, but it does not evidence of this. it seems that new supply must be more GHG-efficient than this development average, given past emissions, and current sources of which are less efficient than substantially In this will continue to exist and emit.” its administrative average, response comment, this DFW observed that the Plan did call for emissions Scoping reductions from these are not existing buildings (though separately quantified) and that one air district’s of the Plan indicated the “land-use analysis Scoping driven” economic sector would be to make a 26.2 required only percent reduction from business as usual. EIR

DFW’s to comments on the do not suffice to demonstrate responses that a 31 reduction from business as usual at the level percent In to the statewide reductions called for Plan. its corresponds Scoping brief, Newhall characterizes this as one of question competing expert opin- ions, on which the courts must defer to the lead But Newhall agency. points to no that the Plan expert opinion stating generally Scoping contemplates ones, same emission reductions from new as from or more buildings existing that the Plan’s statewide standard of a 29 particularly Scoping percent reduction from business as usual without modification to a new applies residential or mixed-use development project. if

Even the statewide and reduction set out economy-wide percentage Plan were shown to be for use as a Scoping generally appropriate criterion of for individual the EIR’s conclusion that significance projects, emissions will be less than would still lack significant substantial evidence. This is because the makes an supporting unsup- statewide used ported assumption regarding density averages Scoping Plan, if in an incorrect could result a business-as- assumption misleading out, usual As the EIR’s business-as-usual sce- comparison. plaintiffs point in nario assumes residential to that found the Santa density equal currently Clarita Because Newhall Ranch as would have Valley. designed greater residential than the for the Santa Clarita the density existing average Valley, EIR in makes a downward from business as usual adjustment projected traveled, in vehicle miles emissions from consequently emissions). (a EIR mobile sources substantial of the total As far as the part reveals, however, the Plan’s statewide business-as-usual model is not Scoping based on residential densities to the Santa Clarita necessarily equal Valley average.

The Plan’s business-as-usual of vehicle miles traveled Scoping projection in 2020 was derived an established model for such using growth projections. Plan, F, F-4.) F-3 to But DFW or (Scoping supra, appen. pp. nothing in Newhall the administrative record shows the statewide points density in in used that model mirror conditions the Santa Clarita assumptions Valley. To the extent the Plan’s business-as-usual scenario assumes Scoping popula- in tion densities than the Santa Clarita assumed the greater Valley density EIR’s business-as-usual the EIR’s reduc- projection, comparison tions from business as usual to reductions demanded Plan will Scoping firm be The administrative record does not establish a misleading. ground thus, well, EIR makes and for this reason as efficiency comparison does not the EIR’s conclusion that Newhall Ranch’s 31 substantially support emissions over business as usual satisfies the percent savings report’s signifi- cance criterion of with the Plan’s 29 statewide consistency Scoping percent 2020. savings by bottom,

At the EIR’s stems from a deficiency taking quantitative compari- son method Plan as a measure of the developed by Scoping greenhouse whole, emissions reduction effort the state as a gas required by attempt- method, to use that without consideration of or ing any changes adjustments, for a different from its to measure the purpose very original design: efficiency and conservation measures a land use incorporated specific development EIR for a location. The assumes that the level of proposed specific simply context, effort one a 29 reduction from business as usual required percent statewide, other, will suffice land use From the specific development. record, information the administrative we cannot that conclusion is say but neither can we discern the contours of a that it is wrong, logical argument establish, left the EIR’s failure to right. analytical gap through substantial evidence and reasoned explanation, quantitative equivalence between the Plan’s statewide and the EIR’s own Scoping comparison project- “ level of its as an informative comparison deprived ‘sufficiency ” (Laurel document.’ Assn. v. Heights Improvement Regents University 47 Cal.3d at California, supra,

Justice our conclusion on this DFW Corrigan argues point, requiring its chosen method for with support quantitative analyzing significance evidence and reasoned is inconsistent with the deferential nature of argument, J., 243.) (Cone. our review. & dis. of at We opn. Corrigan, post, p. disagree. A lead substantial discretion its choice of But agency enjoys methodology. when the chooses to on a method agency rely completely single quantitative demands the research and justify no-significance finding, agency Otherwise, document the essential to that method. quantitative parameters decision makers and the are left with an unsubstantiated assertion public only that the the cumulative of the on impacts—here, impact global Guidelines, 15064, (See (f)(5) not be subd. warming—will significant. “facts, evidence to on includes support finding significance [substantial facts, reasonable assumptions predicated upon expert opinion supported facts,” but not unsubstantiated “[ajrgument, speculation, opinion”].) [or] Nor is Justice correct that our “assumes Corrigan analysis project-level reductions emissions must be than the reductions greater (Conc. J., California is to achieve statewide.” & dis. of seeking opn. Corrigan, 241-242.) 227), (ante, at As discussed above at we hold post, pp. just p. only that DFW erred to substantiate its that the failing assumption Scoping Plan’s statewide measure of emissions reduction can also serve as the criterion for an individual land use project.

We further that DFW’s failure to substantial agree plaintiffs provide for its no conclusion was evidentiary support significant impact prejudicial, it decision makers and the of substantial relevant deprived public information about the Smart Rail v. project’s likely impacts. (Neighbors for 439, 463 (2013) Metro Line Construction 57 Cal.4th Exposition Authority [160 1, J.); (lead 304 P.3d of Environmental Cal.Rptr.3d opn. Werdegar, 499] Forestry Protection Center v. & Fire Dept. Information California 459, 28, (2008) 44 Protection Cal.4th 485-486 187 P.3d Cal.Rptr.3d [80 Forestry 888]; (1994) Sierra Club v. State Bd. 7 Cal.4th 1236-1237 EIR, 505].) 'in 876 P.2d this DFW Cal.Rptr.2d employed [32 In business-as-usual as its sole criterion of comparison significance. absence of substantial evidence to the EIR’s support no-significance finding, above, as noted the EIR’s readers have no whether the way knowing emissions will indeed be project’s likely greenhouse gas impacts significant and, so, if what measures will be to reduce them. This is mitigation required not the sort of or technical that can be merely “[insubstantial omission[]” overlooked whether to relief. Smart Rail v. deciding grant (Neighbors for Metro Line Construction Exposition Authority, supra, We address some of the for DFW on remand and briefly potential options for other lead faced with the cumulative of a agencies evaluating significance land use emissions. While the proposed development’s greenhouse gas substantial, CEQA’s in burden of mandate this context can be methods for not, course, with do exist. We do of of complying guarantee any CEQA’s these will be found to demands as to approaches satisfy any what follows is particular project; merely description potential pathways to on the circumstances of a compliance, depending given project.

First, we have found the made here although particular comparison and doubt has been cast on the Plan’s lacking support, although Scoping Reasons, (see Final Statement of at project-level appropriateness supra, 24-25), a business-as-usual based on the Plan’s pp. comparison Scoping be On an examination of the data behind the methodology may possible. model, Plan’s business-as-usual a lead be able to Scoping agency might determine what level of reduction from business as usual a new land use at the location must contribute order to with development proposed comply statewide goals.

Second, Bill a lead assess with 32’s agency might consistency Assembly whole or with goal part by looking compliance regulatory programs (See to reduce emissions from activities. designed greenhouse gas particular Reasons, Final Statement of at emissions supra, p. [greenhouse gas “may level”].) be best and at a To the extent a analyzed mitigated programmatic features with or exceed the outlined project’s design comply regulations Air Plan and Board or other state a lead Scoping adopted by agencies, could on their use as with agency appropriately rely showing compliance based standards” to fulfill “a statewide . . . for the “performance adopted plan 15064.4, (Guidelines, reduction or emissions.” mitigation greenhouse gas § id., 15064, (a)(2), (b)(3); (h)(3) subds. see subd. that impact [determination is not considerable rest on cumulatively may compliance previously or or for the reduction adopted plans regulations, including “plans regulations emissions”].) of greenhouse gas

A based on with such statewide significance analysis compliance regula- tions, however, within the area only goes impacts governed by That a is to meet regulations. designed high building efficiency standards, conservation does not establish that its example, greenhouse (Final emissions from activities lack gas transportation significant impacts. Reasons, Statement of at accounts for supra, Although transportation emissions, almost 40 of the state’s percent transportation emissions are affected the location and of residential and commer- density cial Plan does not statewide development, Scoping propose regulation Plan, land use but relies instead on local planning governments. (Scoping 11, 27.) supra, pp.

230

Local thus bear the burden of a land use governments primary evaluating on emissions. Some of this burden can be project’s impact greenhouse gas relieved emission reduction by using geographically specific greenhouse gas CEQA a basis for the or of plans provide tiering streamlining project-level 15183.5, in Guidelines section added with section analysis. along 15064.4, in detail how a effort such as “a explains programmatic general or a to reduce plan, long range development plan, separate plan greenhouse (id., 15183.5, (a)) if emissions” subd. detailed and gas may, sufficiently § CEQA be used later documents to adequately supported, project-specific the evaluation of the cumulative contribution to the effects simplify project’s 15183.5, (§ (b)). of emissions subd. Plan greenhouse gas Scoping “ ” local ‘climate action or encourages jurisdictions develop plans’ green- “ ” areas, house ‘emissions reduction for their gas plans’ geographic CEQA several have or such as tools for jurisdictions adopted proposed plans 65; Reasons, see, (Final Statement of at streamlining. supra, p. e.g., City Qualified A Climate Action Plan: Greenhouse Gas Reduction Strat- Milpitas, 1-1; Bernardino, 2013) of San Master Plan egy (May p. City Sustainability Draft, 2012) (Public Review Aug. p. addition, CEQA

In allows expressly streamlining transportation for certain land use based on impacts analysis projects metropolitan regional ‘“sustainablecommunities Under to Assem strategies.” follow-up legislation 2008, 728, 5065, (Stats. Bill Bill ch. known as Senate bly p. commonly 375) each the state is to metropolitan planning organization prepare ‘“sustainable communities or alternative to meet strategy” plan regional Air set Board for emissions from cars and targets greenhouse gas light Code, (Gov. (b)(2).) CEQA trucks. subd. documents for certain § residential, mixed-use and transit that are consistent with the priority projects limits and an sustainable communities policies specified applicable strategy need not emissions from cars and additionally analyze greenhouse gas light 21159.28; 21155.2, Guidelines, 15183.5, (§§ (c).) trucks. subd. § Third, a lead on numerical thresholds of agency may rely existing emissions, as we have significance greenhouse gas though explained 221), (ante, (Guidelines, use of such thresholds is not required. 15064.4, see, (b)(2); Air subd. Area Dist. e.g., Bay Quality Management (BAAQMD), California Environmental Act Guidelines Pro Quality Update: 3, 2010) Thresholds of 8-21 air posed Significance (May pp. [regional quality 1,100 district for the San Francisco Area a threshold of Bay proposes annual emissions as one alternative use agencies may MTC02E determining Thresholds, CEQA for new land use it significance projects].)7 7 BAAQMD approved along its thresholds with other thresholds of significance recommending pending in June but has refrained from their' use (BAAQMD, completion litigation challenging promulgation its of thresholds. California

231 noted, should be define the level at which an environmental effect only is considered do not relieve the lead of its “normally” significant; they agency (Guidelines, to determine the of an duty significance impact independently. 15064.7, (a); (2005) subd. v. Los 130 Mejia City Angeles Cal.App.4th 788].) Cal.Rptr.3d [29 Ranch, For a land use such as Newhall a numerical large project using threshold result a determination of emis- may significant greenhouse gas circumstance, In sion the lead must feasible impacts. agency adopt measures or alternatives to reduce the effect to mitigation project insignifi- cance; to the extent remain after significant impacts mitigation, agency still with a statement of considerations. may approve project overriding 21081; 21002, 21002.1, Guidelines, 15091, 15093, 15126.6.) (§§ (b), subd. §§ Were DFW to determine on remand that hundreds of thousands of adding tons of to the has a greenhouse gasses atmosphere cumulatively significant effect, therefore, it would not be necessarily required disapprove on that basis. The could instead whatever feasible project agency adopt alternatives and measures exist and conser- mitigation beyond efficiency and, vation features to the extent already incorporated project design those measures do not reduce the cumulative of the below the impact chosen threshold of DFW could add a discussion of these significance, and the benefits of the to the statement of impacts, countervailing project, considerations the overriding agency previously adopted approving project.

B. The EIR’s Measures Protection Unarmored Mitigation Stickleback

Threespine that infrastructure construction and of Newhall Ranch Finding building could result status wildlife and significant impacts special plant species, DFW numerous measures. adopted biological impact mitigation Mitigation measures BIO-44 and BIO-46 for collection and relocation of provide special fish, stickleback, status the unarmored construc- including threespine during in, of, tion or diversion the Santa Clara River. Such actions would be United States Fish and Wildlife Service or their performed by personnel agents. 2-5.) Quality Quality (May update) p. litigation Environmental Act Air Guidelines is currently pending (California Building Industry Bay Quality in this court Assn. v. Area Air Dist., 26, 2013, S213478),

Management granted question granted review Nov. but the we BAAQMD solely analyzing review to decide relates to certain thresholds for the effect of existing pollution projects bringing sources on more users or residents to a location. The validity of the source thresholds is not under examination in this court. 232 in

We with these actions as an agree plaintiffs specifying mitigation EIR violates the Fish and Game Code section 5515’s on authoriz- prohibition in or of fish of ing taking possession fully protected mitigation CEQA. under DFW conduct or authorize and relocation impacts may capture in of the stickleback as a conservation measure to the fish and aid its protect but the not a document on the recovery, agency may rely prospect and relocation as adverse capture mitigating project’s impacts. fish, Fish and Game Code section 5515 lists 10 species “fully protected” stickleback, the unarmored Gasterosteus aculeatus wil- including threespine (Id., (b)(9).) (a) liamsoni. subd. Subdivision of that statute provides 2081.7, 2835, “(1) as Section . . . or pertinent part: Except provided fully or not be taken or time. . . . protected parts may possessed any fish thereof However, the authorize the of those for department may taking species research, scientific efforts to recover necessary including fully protected, threatened, subdivision, (2) or . . . As used in this endangered species. [¶] ’ research does not include actions taken as any part specified ‘scientific as defined Section 21065 of the Public Resources mitigation project, Code, 5515, added.)8 (Fish (a), Code.” & G. subd. italics § “hunt,

Fish and Game Code section 86 defines “take” as to pursue, catch, kill, hunt, catch, or or or kill.” capture, attempt pursue, capture, added.) (Italics This definition construction of the Fish and Game governs (Id., Code unless or context otherwise. generally particular provisions require ) §2.

In of the definition of “take” section 86 as an animal’s light including “catch,” or and relocation of stickleback “pursuit],” “capture,” capture measures BIO-44 and BIO-46 violates Fish and contemplated by mitigation Game Code section 5515. are defined Although trapping transplantation as conservation measures for under Fish and possible endangered species 2061,9 stickleback, Game Code section as a is fully protected species, 8 (See provisions govern taking possession fully protected Parallel or of other animals. Code, birds], mammals], [fully protected [fully protected [fully Fish & G. 5050 §§3511 protected reptiles amphibians].) fully protected species laws are distinct from the more (id.. 2050-2115.5), endangered species though many species familiar laws are covered §§ statutory both schemes. exceptions taking prohibition. The listed to Fish and Game Code section 5515’s Fish and respectively taking resulting Game Code sections 2081.7 and deal from an agreement taking provided community on Colorado River water and for in a “natural plan.” exception applies conservation Neither here. (Fish part Endangered Species Fish and Game Code section of the California Act Code, seq.), procedures & G. 2050 et defines “conservation” to mean “all methods and which necessary bring any endangered species species point are or threatened to the at which the provided pursuant chapter longer necessary,” including measures to this are no “research. to the stricter set forth Fish and Game subject prohibitions against taking 5515, Code section an on as including express prohibition taking mitigation 5515, CEQA. (§ (a)(2).) for a under subd.

DFW and Newhall the references to “catch” and argue “pursue,” “capture” in Fish and Game Code section 86 should be understood to exclude trapping and done for conservation Because the stickleback transplantation purposes. 14, 670.5, (Cal. is listed as an Code tit. endangered species Regs., § one, (a)(2)(L)) subd. as well as a fully protected they argue, prohibition on stickleback as a must be harmonized with taking fully protected species act’s to and endangered species permission trap transport endangered Code, 2061.) (Fish In for & G. the context of species protective purposes. § the Fish and Game Code’s solicitude for conservation of and endangered should, maintains, threatened on DFW be species, prohibition taking “[ajctivities understood as . . . that affect fish and referring adversely wildlife—not . . . activities intended to move fish and wildlife out of harm’s way.” authorize, CEQA

We must the claim DFW as actions reject may mitigation, when, here, from harm as those actions are protect fully protected species otherwise as has this prohibited takings. Legislature expressly precluded of the statutes Fish and Game Code section interpretation by providing, 5515, (a), subdivision of a for permitted taking fully protected species “scientific research” include “efforts to recover” the but that such may species “scientific research” does not include actions taken as “any part specified CEQA. for a as defined We cannot effect to this mitigation project” give CEQA and at the same time hold that DFW as provision may, mitigation, authorize the and of stickleback—actions that trapping transplantation plainly “catch,” Code, 86). (Fish call for the fish’s or & G. That such “capture” catch or is intended to the stickleback from harm caused capture protect CEQA construction is inherent its as project’s adoption mitigation is barred under section 5515. expressly our conclusion. The

Legislative history supports language allowing taking efforts but not for was added to Fish and Game recovery mitigation 2003, 735, §4, (a) (Stats. Code section subdivision 2003. ch. 20, 2003, 5521-5522.) As introduced on the bill defined pp. February simply “scientific research” to include efforts for recovery fully protected species. Sess.) (Sen. (2003-2004 Bill An No. as introduced Feb. Reg. introduced, committee of the bill as that the Assembly analysis explained Natural Resources had testified that the Agency secretary fully protected census, enforcement, maintenance, acquisition, propagation, law habitat restoration and live and, trapping, transplantation, extraordinary population pressures in the case where within relieved, (Italics added.) given ecosystem may regulated taking.” cannot be otherwise include 234 “1) law’s absolute on had led to certain

species prohibition taking problems: status conflicts with efforts because there is no Fully protected recovery allowance for to a effort. For the management pursuant recovery example, in statute is direct conflict with fully protected species regional, multi-species conservation such as the Natural Conservation Plan- planning, Community 2) status does not allow for incidental take ning Program. Fully protected [¶] 3) of due to otherwise lawful activities. The law does not species provide [¶] of Because is not an mitigation fully protected species. mitigation option, the recourse is to initiate to address Department’s only legal proceedings Water, (Assem. conflicts with Com. on Parks and fully protected species.” Wildlife, Sess.) (2003-2004 Bill 412 of Sen. No. as introduced Analysis Reg. 20, 2003, 2.) Feb. The continued: to the author this p. analysis ‘“According measure is intended to address the identified Nichols problem by Secretary #1 In above. order to ensure broader efforts can take recovery planning place {Ibid.) some take bemay necessary.”

The bill was amended to add the subsequently Assembly proviso ‘“scientific research” does not include actions taken as ‘“any part specified for a as defined Section 21065 of the Public Resources mitigation project, Sess.) (Sen. (2003-2004 Bill 412 Code.” No. as amended Reg. Aug. 2003.) ‘“[ejxcludes, A new committee noted that the bill now from analysis research,’ ‘scientific actions taken to under the any mitigate (CEQA).” (Assem. California Environmental Act Com. on Quality Appro- Sess.) (2003-2004 Bill 412 of Sen. No. as amended priations, Analysis Reg. 28, 2003, 1-2.) Aug. pp. 28, 2003, not noted

Though explicitly legislative history, August that, amendment was consistent with the earlier observation of the report’s Nichols, three identified the bill was intended to problems by Secretary address the first on members of a only problem: prohibition taking fully tended to hinder for the protected species management programs species’ Water, Wildlife, (Assem. Bill Com. on Parks and of Sen. recovery. Analysis 20, 2003, Sess.) (2003-2004 No. as introduced Feb. It was Reg. not aimed at the asserted of the effects other separate problem mitigation {Ibid.) actions would have on a fully protected species. August amendment, as to by reaffirming taking prohibition mitigation measures, effectuated this distinction intent. legislative

Consistent with this and the we read Fish history statutory language, (a) and Game Code section subdivision as allowing trapping fish as of a transplantation fully protected species part species recovery but not as for a the adverse effect of a program, mitigation project. Mitigating land on a is not the same as development project species undertaking positive efforts for the a distinction the 2003 species’ recovery, recognized legisla- CEQA tion its exclusion of measures from the defini- explicit mitigation tion of “scientific research.” The believed the Legislature evidently prohibi- tion on or should be relaxed to taking possessing fully protected species the use of wildlife needed for recov- permit management techniques species but that should not be allowed to on the of such ery, agencies rely availability or out that would have techniques approving carrying projects significant adverse effects on a We therefore to fully protected species. say nothing DFW’s use or authorization of and to preclude trapping transplantation the stickleback from threats to its survival and as protect recovery, expressly 5515, (a)(1); allowed under Fish and Game Code section subdivision based statute, (a)(2) on subdivision of that we hold that such actions not only may CEQA. be relied on or as measures to “specified” project mitigation pursuant 5515, In the context of Fish and Game Code section the definition limiting includes but is not limited to and animals “taking”—which hunting killing Code, 86)—to (Fish and G. actions intended to harm a fully protected § animal, as DFW would also render or at least urges, unnecessary, very CEQA is not as puzzling, Legislature’s proviso taking permitted 86, (§ (a)(2).) subd. and animals project mitigation. Hunting killing might measure, sometimes be as a conservation for to obtain necessary example, or to relieve a local but biological samples dangerous population pressure, one to the circumstances which a document struggles imagine would a adverse on a propose mitigating project’s impacts fully protected or otherwise members of the species by killing intentionally harming species. (a)(l)’s If Fish and Game Code section subdivision on prohibition or fish referred to “tak[ing] possess[ing]” fully protected only intentionally acts, harmful would not have it Legislature likely thought necessary (a)(2) in section subdivision that such or specify taking possession could not be as a means of adverse effects. proposed mitigating addition,

In Fish and Game Code section 86’s definition narrowing of “take” to actions intended to harm an animal could allow theory unauthorized found persons pursuing catching protected species assert as a defense that their intent was not to harm the animal but complete habitat, to restore or it to a safe a result we doubt much the transplant very would, intended. We are loath to a construction that Legislature adopt sanction an amateur conservationist a south example, capturing moving Code, 4700, (b)(8)) ern sea otter under Fish & G. subd. (fully protected from its established habitat to a cove where the believes it will be person safer and healthier. On this Justice Chin observes that the point, Legislature did not intend such a result for more than for endangered species any fully Chin, J., (Dis. ones. We the broad protected opn. post, agree: definition of “take” Fish and Game Code section 86 ensures that DFW can threatened, maintain control over actions legal interfering endangered and animals even where those actions not have been fully protected may kill intended to or hurt the animal.

DFW deference to its of Fish and Game Code urges interpretation provi sions, in an area which it has both and substantial administrative expertise We consider an of statutes and responsibility. agency’s interpretation regula circumstances, in tions of the where the light giving greater weight interpre tation concerns technical and matters within the of the complex scope (Yamaha America v. State Bd. agency’s expertise. Corp. Equalization of of 1, 1, 1031].) (1998) in 19 Cal.4th 960 P.2d Even Cal.Rptr.2d [78 however, substantive areas of the our deference to an agency’s expertise, limited; is statutes’ and agency’s statutory interpretation determining meaning (Id. effect is a matter within the constitutional domain of the courts.” at “lying said, 11.) in That we DFW’s the adminis p. acknowledge superior expertise Code, tration of the Fish and Game and we would not an lightly adopt of that code’s interpretation provisions department persuasively argued would defeat its to conservation and ability pursue species recovery. Again, however, we do not hold and of fish trapping transplantation fully protected is as of a effort. We hold species prohibited part species recovery only such actions not be as measures an or may specified project mitigation CEQA other document. we DFW from its Nothing say precludes using time, and at how best to expertise judgment determining, any protect from an imminent threat to its habitat. fully protected species 2061, Justice Chin out that Fish and Game Code section to points relating refers “live and “trans- endangered species, separately “taking,” trapping,” (Dis. these actions differ from one another. plantation,” implying opn. Chin, J., 251.) at That this uses a limited sense post, p. provision “taking” or other removal from the a mean- denoting mortality permanent ecosystem, far narrower than the definition of Fish and Game ing generally applicable 86, Code section does not or even the same limited compel suggest meaning was intended Fish and Game Code section relating fully protected Indeed, statute, fish we observe that a Fish and species. closely analogous Game Code section while or prohibiting taking possession fully birds, an for “live protected provides exception allowing permits capture livestock, relocation” of such birds to those actions would protect suggesting otherwise be within the on or statutory prohibition taking possession, same contained Fish and Game Code section 5515. prohibition Justice Chin further our of Fish and Game Code argues interpretation section 5515 as between distinguishing capture transplantation performed for conservation and the same actions as purposes specified mitigation Chin, J., (Dis. measures has “little substance.” To the opn. post, EIR we see a distinction between an contrary, significant discussing measures that be taken as of an effort might part ongoing species recovery and those actions as measures which specifying binding mitigation upon 15126.4, (See (a)(2) is conditioned. Guidelines subd. project approval § conditions, measures must be enforceable [“Mitigation fully through permit instruments.”].) or other Decision makers and the agreements, legally-binding could well be influenced their evaluation of a public project by existence or nonexistence of such enforceable measures. mitigation

C. Timeliness Comments on Cultural Resources and of Plaintiffs’

Steelhead Smolt Impacts EIR, The Court of held two of to the Appeal plaintiffs’ challenges on Native American cultural resources and on steelhead regarding impacts smolt were not because were not (juveniles), preserved they timely brought DFW’s attention the administrative The issue turns on process. plaintiffs’ 21177, CEQA with section which sets out the that a compliance requirement claim be exhausted before the basis for a administratively forming judicial to the actions. challenge agency’s 21177, (a)

Section subdivision that before an provides alleged ground CEQA be to court it must have been noncompliance may brought to the or “presented public agency orally writing by any person during comment this division or to the close of the public period provided by prior on the before the issuance of the notice of determina- public hearing tion.” DFW held no on final of the public hearing approval present project (the Resource Plan and the Management Development Spineflower Plan); Conservation is therefore whether claims question plaintiffs’ Native American cultural resources and steelhead smolt were regarding [CEQA].” to DFW comment presented “during public period provided by 21177, (§ (a).) subd. earlier, EIR

As noted what we have referred to as the was actually combined environmental statement and environmental impact impact report DFW, (EIS/EIR) CEQA under NEPA and prepared jointly Corps 213-214.) (Ante, the lead federal and state agencies, respectively. pp. EIR, comment on the draft but not on the requires public period EIR; final a comment on the final before is period project approval Guidelines, (§ (a); with the lead subd. optional agency. contrast, (b).) subd. NEPA allow and members of the regulations, agencies to submit comments on a final EIS at time before the final public any agency decision, which not be issued earlier than 30 after notice ordinarily may days (40 1503.1(b), 1506.10(b)(2) (2015).) In of the final EIS. C.F.R. compli- §§ ance with its federal a notice of obligations, Corps published availability EIS/EIR, 18, of the final comments June inviting public during period 2010, 19, 2010, 3, later extended 2010. Plaintiffs through July through August raised the issues Native American cultural resources and disputed regarding steelhead smolt comment letters this impacts during period.

Because comments were made com- plaintiffs’ during Corps-noticed EIS/EIR, CEQA- ment for the final rather than the earlier period during EIS/EIR, mandated for comments on the draft DFW and Newhall period contend came too late to claims under section they preserve plaintiffs’ case, (a). subdivision Under the circumstances of this we disagree. EIR, CEQA In the final DFW stated that while did not a comment require it, EIR on DFW would make the final available to the “at the period public In time the its review.” its on Corps begins required 30-day public findings allows, “CEQA DFW noted that but does not project approval, require, public (extended EIR” review of a Final and that the comment Corps’ 45-day period CEQA from 30 is to the for days) “equivalent” 45-day period required by draft EIR’s submitted for review other further agencies. findings that comments on the final EIS/EIR were to the explained given applicant (Newhall) for of draft that DFW “coordinated with the preparation responses, and the the initial discussions” these Corps applicant during regarding comments, “[bjased and that on the received from both DFG input [now and the and its consultant team Corps, applicant completed DFW] sum, In to the comments.” “DFG has and coordi- responses provided input nated with the and the to the draft on Corps applicant respect responses the Final EIS/EIR.”

On of the and revision the lead completion response process, agencies an addendum of the final EIS/EIR that together prepared containing portions had been modified to comments on that document. The response agencies addendum, included that with the final EIS/EIR itself and the together comments, in comments and their final decision documents. This responses addendum a new measure for Native American cultural adopted mitigation resources, and the DFW to comments on the final responses by plaintiffs’ include on on steelhead. responses impacts

We need not decide whether mandated comment every federally on a final combined EIS/EIR also constitutes a comment period period case, (a). In of section subdivision this the lead state purposes

239 DFW, in the EIS/EIR agency, participated fully post-final process, helping to the comments received and those comments prepare responses including EIR and the version of the final it certified as responsive changes CEQA when Where the lead compliant approving project. agency CEQA under has treated a federal comment on a final EIS/EIR as an period CEQA to receive additional comments on issues as well and has opportunity to those comments and included the its final decision responded responses document, the lead has treated the federal as an agency effectively period 15089, EIR comment on the final under Guidelines section optional period (b). CEQA subdivision Such an comment is for optional period “provided by” (See of section 21177. Environmental Protection purposes Information Protection, 44 Center v. & Fire Cal.4th at Dept. Forestry supra, California of EIS/EIR, 484 federal notice of of final which agency’s availability [lead also invited comments to be sent to lead state agency, reopened public comment Galante v. period purposes]; Vineyards Monterey 1109, (1997) Peninsula Water Dist. 60 1120 Management Cal.App.4th [71 comment Cal.Rptr.2d phrase ‘during public period provided by 1] [“the division,’ .”].) this . . . includes comment . . optional periods remedies, exhaustion of administrative as section purposes requiring does, are to burden a at the lighten judicial by providing remedy and, administrative level where a is nonetheless judicial remedy sought, record that draws on the administrative facilitating complete agency’s (Tomlinson and has been sifted for relevant evidence. v. expertise already 539, (2012) Alameda 54 Cal.4th 278 P.3d County Cal.Rptr.3d [142 case, 803].) In this where DFW reviewed comments independently plaintiffs’ EIS/EIR, on the final contributed its to the expertise drafting responses comments, revisions based on those and included those responses revisions the final version of the it certified and relied on its making decision, the statute’s has been served. We conclude the approval purpose (a) comments were under section subdivision because disputed timely CEQA. were submitted comment they during public period provided by The Court of after had not Appeal, holding plaintiffs administratively exhausted their claims on these went on to those claims on the topics, reject merits, the EIR’s determinations to be substantial finding supported by evidence. DFW and Newhall the Court of be argue Appeal’s judgment may on this alternative whereas insist the merits must be upheld ground, plaintiffs revisited because the Court of for information Appeal’s disregard presented the comments it deemed tainted its evaluation of the merits. We untimely leave for the court the of whether its determinations on the appellate question merits reexamination. require

III. Conclusion conclude, We to the of the Court of that contrary holdings Appeal, determination, DFW abused its discretion without the by making support evidence, of substantial that the emissions would project’s greenhouse gas in have no and resource significant impact, imposing biological mitigation measures that call for the of a fish trapping transplantation fully protected We further conclude the Court of erred species. Appeal holding plaintiffs failed to their claims Native American cultural resource preserve regarding remand, and steelhead smolt On the Court of shall decide impacts. Appeal whether, in of our exhaustion the Native American cultural light holding, resource and steelhead smolt claims warrant reexamination on the merits. The decide, Court of shall further or remand for the court to Appeal superior decide, 21168.9.) (See of the writ of mandate to be issued. parameters case,

Justice Chin that this we suggests by reversing remanding the construction of Newhall Ranch and its thousands inordinately delay push of residents into that “will be far less potential housing undoubtedly green Chin, J., (Dis. than this to be.” of at It is project promises opn. post, p. role, course, not the courts’ of to decide where the state new housing built, CEQA should be and our review of a lower court’s does not turn ruling if on our assessment of the environmental merits. Even independent project’s Newhall Ranch offered the best means of this environmentally housing part CEQA’s of California’s growing population, requirements informing valid, and decision makers of adverse and for of public impacts, imposition measures, feasible would still need to be enforced. mitigation Nor is Justice Chin’s envi- assumption regarding project’s superlative out, ronmental the record. As profile necessarily supported by plaintiffs point business-as-usual model used to assess hypothetical green- house emissions assumes the continuation of gas counterfactually building and vehicle standards and an source mixture efficiency electricity generation have, in been stricter standards and actuality, superseded by practices. The EIR’s calculation of a 31 reduction to this model percent comparison therefore does not mean Newhall Ranch would emit 31 fewer percent than other mixed-use that could be built greenhouse gasses projects actually under current standards. one should not assume a sizeable new Finally, to be built on land with habitat for housing development, largely undeveloped several sensitive will have minor either on species, comparatively impacts emissions or on fish and wildlife. The dissent’s claim that decision threatens the “subversion” of into a tool for today’s delay Chin, J., 253) (dis. meritorious is neither uniquely opn. post, warranted the facts nor consonant with the review under scope judicial CEQA. Disposition

IV. The of the Court of is reversed and the matter is judgment Appeal remanded to that court for further consistent with our proceedings opinion. J., Liu, J., Cuéllar, J., J., C. concurred.

Cantil-Sakauye, Kruger, CORRIGAN, J., with most of the Concurring Dissenting.—I agree I measures majority opinion’s holdings. Specifically, agree mitigation (EIR) described the environmental for the unarmored impact report stickleback would constitute a the Fish and threespine taking prohibited by I Game Code. also that the used to assess the agree methodology significance of emissions was consistent with the California Environmental greenhouse gas Code, (CEQA; Act Pub. Resources 21000 et The Quality seq.). Department (DFW) of Fish and Wildlife did not violate the statewide by using Sess.) (2005-2006 Bill emissions reduction No. 32 goal Assembly Reg. 32)1 Bill as a criterion or Newhall (Assembly significance by comparing Ranch’s emissions to a business-as-usual model instead of to a projected ante, 224, 225.) (See baseline of emissions. existing maj. opn., pp. Having however, determined the was finds methodology permissible, majority insufficient evidence DFW’s of it. Here our views supporting application EIR Because the level of detail the demands from this is diverge. majority to both our deferential standard of review and our of the contrary approval I used to assess dis- methodology greenhouse gas significance, respectfully sent from that of its portion opinion.

A. Correlation with Statewide Goal All members of the court could use with agree developers consistency Bill 32 as a threshold for of Assembly determining significance green- CEQA. Bill house emissions under 32 set a gas Assembly goal reducing statewide emissions 29 from business as usual. Under the methodol- percent if we emissions from the are “consistent” ogy approve today, expected CEQA. with this statewide are not goal, they significant purposes that Newhall Ranch will achieve a 31 reduction from Experts project percent usual, Bill business as two better than 32’s percentage points Assembly goal. Nevertheless, the concludes this is insufficient to majority projection support Bill 32 because the does not finding consistency Assembly how reductions correlate with statewide reductions. explain project-level assumes reductions majority’s analysis implicitly project-level emissions must be than the reductions California is greater chapter page Statutes 3419. that, to achieve statewide. It reasons because new can seeking developments the most advanced achieve incorporate technology, they may presumably than is greater efficiency possible through retrofitting existing buildings. Thus, state, all sources across the considering regulators may (See emissions reductions from new expect greater developments. maj. opn., ante, abstract, 226.) at This be reasonable the but p. argument may my view it is too a for a amorphous ground invalidating carefully prepared EIR. lead must consider whether a thorough Although agencies project’s are considerable” of and future impacts “cumulatively light existing Code, 21083, (Pub. (b)(2)), CEQA Resources subd. no projects provision on environmental places responsibility developers mitigate impacts Moreover, caused other does not entirely by projects. majority identify how much better than the statewide new must be. The just goal projects mandate, Bill Plan” for 32 did not let alone “Scoping Assembly suggest, levels for new Nor does the specific efficiency development projects. majority indicate what level of reduction would be sufficient for opinion specific Bill Newhall Ranch to demonstrate with 32. It is not consistency Assembly reduction, clear a 31 to be achieved the one of the why percent by largest in the state’s is development projects history, necessarily inadequate. The substantial evidence conclusion would also seem to render majority’s our of DFW’s nomi- approval methodology illusory. Although majority nally approves determining significance by measuring project’s Bill from business as usual 32’s statewide improvements against Assembly it faults the here for to demonstrate “a goal, failing quantitative between the Plan’s statewide and the EIR’s equivalence Scoping comparison ante, 227.) own at But we have no project-level comparison.” (Maj. opn., p. assurance it is even to calculate how a statewide possible goal corresponds measures for individual The specific, quantitative efficiency projects. majority discusses several opinion approaches assessing significance green- However, house emissions. one addresses the gas only option methodology used DFW and this case. DFW assessed actually approved significance reduction of emissions from business as usual to by comparing project’s Bill 32’s for such reductions statewide. to the Assembly goal According it be to obtain a correla- majority, only way “may possible” quantitative if tion between these business-as-usual models is “an examination of the data behind the Plan’s business-as-usual model” allowed the lead Scoping agency “to determine what level of reduction from business as usual a new land use at the location must contribute order to development proposed comply ante, 229.) statewide at goals.” (Maj. opn., p. speculation underlying data answer little aid to the might yield satisfactory gives practical agencies that will have to our decision on remand. implement observes,

As Justice Chin from different many experts many agencies Chin, J., (Dis. have scrutinized this project. opn. post, Despite

243 efforts, their there is no scientific consensus as to how a reduction at the large Bill level is needed to establish 32’s project consistency Assembly circumstances, statewide Under these the lead had discretion to goal. agency conclude that a reduction the statewide two project-level exceeding goal by Bill was consistent with 32 and demonstrated percentage points Assembly that emissions would not be for of greenhouse gas significant purposes CEQA. (See Save Our Peninsula Committee v. Bd. Monterey County of 99, 326].) (2001) 87 120 Supervisors Cal.App.4th Cal.Rptr.2d [104 The conclusion is inconsistent with our deferential majority’s contrary “ review, standard of review. Under substantial evidence ‘the court reviewing in must resolve reasonable doubts favor of the administrative finding ” University (Laurel decision.’ Assn. v. Heights Improvement Regents of 278], (1988) 47 Cal.3d 764 P.2d Cal.Rptr. [253 California added.) italics Our “task is not to evidence and determine weigh conflicting who has the better when the is whether adverse effects have argument dispute been or could be better We have neither the resources mitigated mitigated. if nor scientific to such even expertise engage analysis, statutorily Here, (Ibid.) standard of review us to do so.” the lead prescribed permitted determined the emissions from Newhall Ranch would agency greenhouse gas not be for based on a this court significant purposes methodology review, now validates. On substantial evidence the burden was on parties EIR to show that this determination was attacking insupportable. Specifi- that, had to demonstrate better than Assem- cally, they despite being slightly Bill 32’s statewide reduction bly goal, project’s percent greenhouse Bill emissions is too low to be “consistent” with 32. have gas Assembly They not done so.

B. Population Density Comparison second reason for the EIR’s conclusion majority opinion’s rejecting about the emissions is both significance hypertechnical deferential to the lead insufficiently agency’s expertise.

The EIR’s business-as-usual model assumes a population density equal at “full build out” Santa Clarita where the currently existing Valley, is located. Because the is to have a project designed higher density than this it is reduce existing development, expected significantly green house emissions from business as usual. The criticizes gas majority opinion to correlate this with the business-as-usual failing comparison that, used Plan. It notes the extent” the comparison Scoping “[t]o Plan’s business-as-usual model is based on areas with Scoping higher popula tion densities than Santa Clarita the EIR’s of emissions Valley, comparison reductions from those demanded Plan would be Scoping misleading. ante, (Maj. opn.,

It is not obvious that there is with immediately anything wrong comparing the Newhall Ranch the area. The development surrounding criticism rests on about the Plan’s business- majority’s assumptions Scoping model, as-usual but technical details about that model are not the record. the views this as a lack of substantial Although majority opinion shortcoming evidence, CEQA I am not convinced a burden on the or imposed developer lead to research and document a one-to-one with all agency correspondence details of the Plan’s model. the level of Scoping Again, evidentiary support the demands is inconsistent with our deferential standard of review. majority

C. Conclusion I share Justice Chin’s concerns about and the that delay possibility Here, will become a the compliance moving target, impossible satisfy. DFW’s solution to a novel and difficult majority nominally approves prob- lem: how to measure the of a emissions. significance project’s greenhouse gas Yet, after the the approving methodology assessing significance, majority undermines this outcome technical details that are inherent by challenging I of DFW’s would defer to methodology. Having approved methodology, its conclusion that the Newhall Ranch emissions will fall below project’s CEQA’s threshold of significance.

CHIN, J., I dissent. would affirm the Dissenting.—I respectfully judgment Turner, the Court of Its authored Justice Appeal. opinion, by Presiding Justices Mosk and contains an joined by Kriegler, extraordinarily thorough and careful review of the issues and reaches the correct result. decides three issues under the California Environmental majority Code, (CEQA; Act Pub. Resources 21000 et

Quality seq.). issue, I the first with the that the lead Regarding agree majority agencies— (DFW) the of Fish and Wildlife and the United States Department Army the environmental Corps Engineers—used proper methodology impact (EIR) to determine whether the would report development significantly the environment its As the impact discharge greenhouse gases. majority notes, ante, CEQA is not a control measure. population (Maj. opn., built, 58,000 If the is not or so residents the development planned house, is intended to with the infrastructure and community along necessary commercial will be else. proposed enterprises, someplace Accordingly, that the majority correctly rejects project opponents’ argument only method is to with no It permissible compare development development. sense, discretion, makes eminent and comes within the lead agencies’ emissions with the compare proposed development’s greenhouse gas emissions a business-as-usual model to measure the emission projected

245 reduction needed to with established for comply legally goals however, I EIR reductions. with the conclusion that the disagree, majority’s does not 31 reduction adequately explain why projected percent green- house emissions is consistent with mandated reduction gas legally goals. issue, I the second with the that the

Regarding disagree majority’s holding to move the unarmored stickleback fish out of harm’s proposal threespine Code, that, therefore, EIR is a under the Fish and Game way taking not call the measure. may program mitigation issue, the third with the time for Regarding compliance requirements under is so that over making objections critically important litigation EIR an does not become a battle of attrition with never-ending ever-changing However, for to aim for. under the targets project opponents very specific case, EIR circumstances of this the fact that the addresses the including fully I with the that the Court of should not have objections, agree majority Appeal found two of the forfeited. But because the Court of also objections Appeal merits, EIR on the that the rejected arguments convincingly showing considered the the error no basis to reverse adequately objections, provides the judgment.

A. Comments Preliminary EIR “The has made clear that an is ‘an informational docu- Legislature ment’ and that of an environmental is to purpose impact report provide ‘[t]he and the with detailed information about the public agencies public general environment; effect which a is to have on the to list proposed project likely minimized; in which the effects of such a be ways significant project might (Laurel and to indicate alternatives to such a project.’ Heights [Citations.]” University (1988) Assn. v. 47 Cal.3d Improvement Regents of of California 376, 426, 278].) EIR 764 P.2d “The is also intended ‘to Cal.Rptr. [253 has, fact, demonstrate to an that the apprehensive citizenry agency ” (Id. and considered the of its action.’ analyzed ecological implications City 68, Oil, (1974) No Inc. v. Los 13 Cal.3d quoting Angeles 66].) 529 P.2d Cal.Rptr. [118 CEQA— EIR in The this case is one of the ever under longest prepared which is that the is one of the ever appropriate, given largest proposed in California. It was over a of at least five prepared period years, ample does what it is to do. It opportunity public input. just supposed decisions, has informed those who are entrusted to make the as well as fully of the environmental Now it is time general public, project’s impacts. to let the decision makers make decisions. finally summarizes, As the be over about 20 on majority developed years “[t]o 12,000 almost acres the Santa Clara River west of the of Santa along City Clarita, 20,885 Newhall Ranch would consist of proposed up dwelling 58,000 units residents as well as commercial and business housing nearly uses, schools, courses, and other facilities.” golf parks community (Maj. opn., ante, 213-214.) at pp.

After much and also community regulatory input, project promises be reductions the amount of very “green,” large greenhouse gas emissions to be The Newhall Land and expected. developer, Farming that, EIR, summarizes as documented Company, proposed develop- ment will reduce emissions for “by providing, example, E insulation and low and air improved ducting, glass, high efficiency heating and radiant barriers attic it will on conditioning, spaces.” Additionally, rely emissions, various other features to reduce the design including: services; “(a) close of homes to and proximity jobs transit; “(b) public trails,

“(c) and paseos, pathways walking biking; “(d) tree and native and planting drought-tolerant landscaping; “(e) efficient energy lighting;

“(1) use of solar water for all Newhall Ranch recreational heating center pools; silver certification for the and construction of Newhall

“(g) design Ranch fire stations and consistent with the public library ‘Leadership standards; and Environmental . . . Energy Design’ “(h) comprehensive recycling; lot, station, station;

“(i) bus transit bus transfer park-and-ride stops, reservation of for a Metrolink rail line to “(j) right-of-way fight facilitate residents less on vehicle travel.” relying Neither the nor the this majority project opponents dispute summary. The Newhall Ranch has been reviewed over a thoroughly period (The in an EIR. many years, resulting extraordinarily thorough portion emissions alone is hundreds of After concerning greenhouse gas pages long.) earlier the for several work on the litigation delayed proposed project years, work, EIR current around 2005. After some five com- began years public ment, revisions, EIR in and the final was certified 2010. As the amicus curiae brief the filed former Governors supporting project George Deukmejian, Wilson, notes, Pete and Davis at different times and different Gray during in the review different steps process, eight governmental agencies, represent- federal, state, local, studied, level of and have ing every government, imposed on, and, DFW, (1) (2) conditions the ultimately, approved project: (3) United States the United States Environmental Army Corps Engineers, Service, (4) (5) Protection the United States Fish and Wildlife Agency, Board, (6) Los Water Control the Los Angeles Regional Quality Angeles Commission, (7) Local Formation the Los County Agency Angeles County (8) Board of and the Los Supervisors, Angeles County Regional Planning Commission. in

Each of these has far than this court agencies greater expertise judging the merits of the what measures are proposal determining mitigation and what conditions to also are appropriate impose. They responsible California’s inevitable future Now planning managing population growth. in have turned to the courts their final effort to invalidate project opponents EIR in the 2010 and derail the this action. This court project, culminating should be cautious about the considered of these overturning judgment eight California’s environmental laws are not intended to devel- agencies. prevent that is needed to accommodate the state’s opment growing population. Instead are they designed encourage planned development by ensuring decisions how to accommodate the state’s regarding growing population while the environment are The instant is protecting very informed. EIR and the detailed and careful has informed the thoroughly planned, fully decision makers. EIR, I

The finds two flaws which discuss order. majority B. Greenhouse Gas Emissions

California has mandated substantial future reductions greenhouse gas emissions. The mandate is to our environment and must critically important EIR be treated and the had to consider very seriously. reviewing agencies emission And did that. As the very carefully project’s impact. they just measures, EIR with the will result explains, project, proposed mitigation a 31 reduction emissions from a business-as- percent usual model. The this calculation. Neither the nor fully explains majority 248 Indeed, it. the Court of project opponents dispute Appeal opinion explains

that evidence exists that this is “conservative.” figure actually EIR also the 31 reduction to the reduction compares percent goal established under the California Global Solutions Act of Legislature Warming Code, (Health 2006 & Saf. 38500 et known as seq.), commonly Assembly Sess.) 32). (2005-2006 Bill Bill No. 32 As the Reg. (Assembly majority Air the EIR’s method was modeled on the State Resources Board’s explains, Bill determination that the reduction under 32 is 29 goal Assembly percent ante, from business as usual. at It the lead (Maj. opn., appears have, discretion, could their used an even lower as its agencies goal measurement. to an of the conducted According analysis scoping plan by “ (BAAQMD), Air Area District ‘land use-driven’ Bay Quality Management sectors” will be to demonstrate a 26.2 reduction expected only percent (BAAQMD, emissions. California Environmental Act greenhouse gas Quality 3, 2010) Guidelines Thresholds of Update: Proposed Significance (May 12-13, 15.) But because the used the of a 29 pp. higher goal percent reduction, I will also.

Three recent Court of have made clear that Appeal opinions comparing Bill reduction with 32’s reduction is a proposed Assembly goal proper (Friends within the discretion. Oroville v. methodology agencies’ City of of 832, (2013) Oroville 219 841 Cal.App.4th Cal.Rptr.3d City [164 1] [“The Bill 32’s reduction for properly adopted Assembly targets [greenhouse gas] emissions as the standard whether threshold-of-significance determining emissions constituted a environ Project’s [greenhouse gas] significant mental North Coast Rivers Alliance v. Marin Water Dist. impact.”]; Municipal (2013) Bd. Directors 216 652 Cal.App.4th Cal.Rptr.3d [157 240] of EIR concluded the would not interfere with a 15 Project achieving [“[T]he emissions, reduction percent countywide [greenhouse gas] compared levels, 1990 2020. This more than satisfied the analysis requirements CEQA.”]; Environmental v. Responsible Equitable Development Citizens for (2011) Chula Vista 197 336 City Cal.App.4th Cal.Rptr.3d [127 435] [“Here, the exercised its discretion to utilize City properly compliance Sess.) threshold.”]; (2005-2006 Bill No. 32 as the see Assembly Reg. Citizens Environmental 337 reduction Responsible Equitable Development, p. [a 4 Bill emissions than Assem. percentage points greater sufficient].) 32’s was goal

Here, the reduction was than the established percentage points greater rather than the found goal, percentage points adequate Citizens for

249 Vista, Environmental v. Chula Responsible Equitable Development City of in 327. But the that case did not turn on the supra, Cal.App.4th holding exact amount the reduction exceeded the The did not abuse goal. agencies in their discretion a that three Courts of have adopting methodology Appeal approved. EIR to this the holds that the does not

Contrary authority, majority how a 31 reduction emissions is adequately explain percent greenhouse gas Bill consistent with 32’s of a 29 reduction. Assembly goal percent Citing Office, letter from the California General’s it that a new Attorney suggests should exceed that some an development goal by amount—presumably ante, 226.) amount than at For greater percentage points. (Maj. opn., p. one has as one a criterion of 50 example, expert group proposed, possibility, (Cal. Air reduction for new Pollution Control Officers percent developments. Assn., CEQA & Climate and Greenhouse Gas Change: Evaluating Addressing Emissions from to the California Environmental Act Projects Subject Quality 2008) 33.) (Jan. A 50 reduction would be p. percent impressive certainly would be wonderful. But what be ideal does not have the force of law. might If the had enacted a statute new to exceed Legislature requiring developments if amount—or an authoritative goal by specified perhaps governmental had so we agency charged implementing legislation specified—then should enforce it. But the General’s letter and the Attorney project opponents’ are not arguments legally binding.

Indeed, that a 50 reduction is not recognizing percent legally required, same other As a recent law review expert group suggested possibilities. article also stated that a would be to explains, group possible approach conclude that “an individual that has emissions that project greenhouse gas % are 28-33 less than such a would otherwise have under a scenario could be considered less than for significant [business-as-usual] CEQA.” (Crockett, Greenhouse purposes Addressing Significance of CEQA: Gas Emissions Under Search Regulatory Certainty California’s for 203, 215-216.) (2011) 4 an Uncertain World Golden Gate U. Envtl. L.J. EIR as Justice criticism of the Additionally, Corrigan explains, majority’s to correlate its with the business-as- failing population density comparison usual used Plan is comparison Scoping unduly hypertechnical (Cone. inconsistent with our deferential substantial evidence review. & dis. ante, ante, at Given the absence of opn., citing maj. opn., p. or consensus the best the lead any expert regulatory regarding methodology, acted within their discretion their chosen agencies adopting methodology. that the reduction fully explains proposed Bill emissions is than 32’s No basis exists to greater Assembly goal. legal determine that this is insufficient. the acted within their Accordingly, agencies discretion the reduction would not finding exceeding targeted signifi- interfere with the reduction. cantly meeting targeted I would also find no so much can be of an EIR. prejudice. Only expected EIR The informed the decision makers and what the general public exactly (See would be. More is not Environmental project’s likely impacts required. Forestry Protection Center v. & Fire Dept. Information California 459, 28, 888].) (2008) 44 Protection Cal.4th 187 P.3d Cal.Rptr.3d [80 C. The Unarmored Stickleback Threespine To the extent the threatens harm to the unarmored proposed project (stickleback), EIR stickleback fish the describes mea- threespine mitigation stated, sures that will be taken to it. the have protect Briefly project managers United States Fish and Wildlife Service developed program whereby (and and their those will move the stickle- employees agents only personnel) back out of harm’s as them. No one seems to way necessary protect this challenge program’s efficacy protecting preserving species. EIR But the the Fish and Game Code as majority interprets prohibiting from measure. calling program mitigation note, first,

I that the has little substance. The majority’s holding majority makes clear that the United States Fish and Wildlife Service is allowed to ante, 232, 234.) the stickleback this The protect way. (Maj. opn., pp. is correct this The Fish and Game Code does not majority clearly regard. (See this federal from the stickleback. prohibit agency protecting Biological Fish, 2006) (9th v. United States Cir. 450 F.3d Diversity Wildlife 941-943.) All that the is to the as a majority prohibits referring program measure the EIR. Because the EIR’s is to binding mitigation purpose “ ‘detailed about the effect which a is provide proposed project information ” (Laurel to have on the environment’ Assn. v. likely Heights Improvement 47 Cal.4th at italics Regents University California, supra, added), even the to discuss the as a majority permits program way All avoid harm to the stickleback. the EIR’s majority presumably requires drafters to do is to use a such as “avoid harm” or phrase “protect and not use a word like species,” “mitigate.” is also as a matter of The majority wrong statutory interpretation.

stickleback is as both an and a officially designated “endangered species” Code, 2062, 5515, (Fish (b)(9); fish.” & G. subd. all “fully protected §§ code.) further citations are to this “The . . . finds and statutory Legislature conserve, restore, declares that it is the of this state to and policy protect, enhance or threatened and its habitat and any endangered species any species that it is the intent of the consistent with Legislature, conserving species, 2052.) (§ lands for habitat for these Section 2061 defines acquire species.” “ ” ‘[cjonserve’ as methods to make the no using necessary species longer and, in ‘'live and the extraor- endangered, including trapping, transplantation, case where within a cannot be dinary population pressures given ecosystem relieved, added.) (Italics otherwise include Between may regulated taking.” them, sections 2052 and 2061 and indeed permit, encourage, program here, the federal moves an like the whereby agency endangered species stickleback out of harm’s way.

But the concludes that a fish majority provision concerning fully protected as a measure what the statutes prohibits mitigating concerning endangered fish or thereof not be taken species encourage. ‘“[Fjullyprotected parts may 5515, (§ (a)(1).) or time.” subd. The section possessed any excepts takings research,” “for scientific but the does not include actions necessary exception us, (Id., (a)(1), (2).) taken to subd. The before mitigate project. question therefore, is whether the stickleback out of harm’s would be a moving way I The concludes it is. The DFW and prohibited taking. majority disagree. “ hunt, catch, kill, hunt, ‘Take’ means or or pursue, capture, attempt catch, isolation, 86.) (§ (but or kill.” Viewed it is pursue, capture, plausible far from to conclude that the at issue does involve a compelled) program However, within this definition. do not examine taking [statutory] “[w]e isolation, but the context of the framework as a language statutory whole order to determine its and and to harmonize the scope purpose Communities, (Coalition various of the enactment.” Concerned Inc. v. parts City 733, 676, (2004) Los 34 Cal.4th 101 P.3d Angeles Cal.Rptr.3d [21 563].) Code, Section 86’s definition of “take” to the entire Fish and Game applies (See section and not to section 5515. Section 2061 including just refers to “live which is separately trapping,” “transplantation,” “taking,” references, in an case. These and the permitted extraordinary separate special rule for is different than “live taking, necessarily imply “taking” trap- does not what the differ- ping” “transplantation.” majority explain ence is between and “live or or “taking” trapping” “transplantation,” why constitutes rather than live or as the program taking trapping transplantation, DFW argues.

Viewed of section the DFW is correct that the light planned movement is not a within the of the code. reasonable taking meaning Any of that word is that it has some connotation of harm to the interpretation not mortal harm. of the fish species, although necessarily Obtaining possession to move them from a of to a of just long enough place danger place safety, then them is not a it is live and letting go, taking; trapping transplantation.

The scheme other clues that this is the correct statutory provides interpre- tation. Section 2061 as a method to conserve an permits “regulated taking” in “the case where endangered species extraordinary population pressures within a cannot be otherwise relieved.” What this means is given ecosystem if excessive is itself due to population threatening species—perhaps insufficient resources to sustain the excess population—and population relieved, cannot otherwise be This agency may employ regulated taking. permanent kind of must refer to a that will reduce the taking taking not movement of the fish from a population pressure, merely temporary to a Section 5515 such a place danger place safety. precludes regulated when used the effects of a taking merely mitigate project, example, when the itself would reduce the resources and thus would itself cause All this would make sense. to the population pressure. Contrary majori- would full effect to section ty’s argument, my interpretation give ante, 233.) (a). (See subdivision at But section 5515 maj. opn., p. nothing the DFW’s of the as live precludes interpretation proposed program trapping and rather than a transplantation, taking. scheme,

This harmonizes the entire and does not interpretation statutory make the scheme contain mandates—one mandate for endan- contradictory and another mandate for fish. It is the gered species fully protected interpre- tation the DFW—the the law agency charged administering regarding and it. We are not bound endangered fully protected species—has given if it is but we should at least agency’s interpretation obviously wrong, it deference. The DFW is far more and give expert conserving endangered fish than we are. It is not for that fully protected obviously wrong agency view the as live and rather than program trapping transplantation taking. cites section 3511 as somehow that “live majority suggesting capture (a and relocation” the same as the live and concept essentially trapping 2061) cited is either the same as or a subset of transplantation taking ante, at The section contains no such taking. (Maj. opn., suggestion. It states that birds or thereof not be taken or “fully protected parts may time,” but the DFW authorize the live possessed any “may capture relocation of those to a for the species pursuant permit protection circumstances, livestock.” This but some language prohibits taking permits, relocation, live thus that the are not capture suggesting concepts separate, the same.

The reference to and animals” majority’s “[hjunting killing (maj. opn., ante, 235) at is an and p. puzzling. Moving endangered fully protected from a of to a of bears no resemblance to species place danger place safety and and can be viewed as a hunting killing. Hunting killing readily taking, not live and But so does not the trapping transplantation. doing compel conclusion that a to a of is also a rather moving species place safety taking than live and trapping transplantation. invokes the of amateur majority specter self-help by self-appointed ante,

conservationists. at the to be a (Maj. opn., Interpreting program live and rather than a has permitted trapping transplantation prohibited taking to do with The DFW and the United States Fish and nothing self-help. Wildlife Service are not but self-appointed experts, governmental agencies I mandated to and conserve and protect endangered protected species. agree with the that the did not intend to ‘“allow unauthorized majority Legislature found and to assert as a persons pursuing catching protected species defense that their intent was not to harm the animal but to restore or complete {Ibid.) it to a safe habitat.” The Fish and Game Code does not transplant Indeed, allow unauthorized to so act. because the rule persons special to fish and not more concerning taking applies fully protected only generally the would mean that ‘“unauthorized endangered species, majority’s analysis found and an could ‘“assert as persons pursuing catching” endangered species defense that their intent was not to harm the animal but to restore complete or it to a safe habitat.” The cannot have intended that transplant Legislature either. short, needed,

In the stickleback as the United States Fish and protect Wildlife Service can of the live and trans- implement program trapping And, in of the fish from a of to a of plantation place danger place safety. EIR can call it a measure” without describing program, ‘“mitigation the Fish and Game Code. violating

D. Conclusion We have that rules of the environ- regulating protection ‘“caution[ed] ment must not be subverted into an instrument for the oppression delay social, economic, (Citizens or recreational and advancement.” development (1990) Goleta v. Board 52 Cal.3d Valley Supervisors [276 1161].) 801 P.2d threatens this subversion. Cal.Rptr. Today’s opinion very The Newhall Ranch has been very long planning, approval, EIR The current was finalized some five The two flaws litigation. years ago. ante, (See has found can be fixed. majority easily maj. opn., 228-231 how the error that a 31 pp. [describing supposed finding percent reduction emissions would not interfere with significantly noted, fixed].) reduction of 29 can be As meeting targeted percent regarding stickleback, the the the lead need program protect agencies seemingly only EIR delete from the terms that sound like and use instead any “mitigation” So, in some other term such as harm” or the “avoiding “protecting species.” sense, fix one one ask what is the harm the case back to might sending these flaws.

The harm is This has the delay. litigation already delayed implementing EIR some five or so. Now this court is the case back to the years sending Court of other it is the Appeal. Among things, permitting project opponents some decided issues even the Court of relitigate already though Appeal fully the the first time. It also leaves it to the Court of rejected arguments Appeal, remand, or to the court on a further to decide the exact perhaps superior ante, 240.) of the writ of mandate to be issued. at parameters (Maj. opn., p. end, At some this will and the writ will issue. At some point, appeal point that, revised, EIR after the will have to be with the necessary period public comment, etc. limited to the two flaws the has (although presumably majority found). Then it is more will follow the predictable yet litigation finalization of the new EIR. Given the this will glacial pace litigation, take easily years.

And it worse. The hints that the time will come gets majority strongly when established for the 2020 will not be compliance goals year sufficient, and the will have to meet some different proposed project goals ante, established for the future 2020. the beyond (Maj. opn., By ends, finalized, EIR time this and the new is we will litigation prepared be much closer to 2020 than when the current was finalized 2010. can become its own reward for Delay project opponents. Delay project and it has to meet new and then new long enough targets, perhaps targets CEQA All after that. this is a But is not meant to cause recipe paralysis. communities are needed to accommodate paralysis. Carefully planned green California’s ensures the informed but it growing population. planning, does not communities. prohibit planned 58,000

CEQA does to control California’s nothing population growth. or so is intended to accommodate will not people proposed project just go will be somewhere. And that somewhere will away. They living working be far less than this to be. The undoubtedly green project promises longer 58,000 is and residences of delayed, longer workplaces people will be business-as-usual amounts of rather than emitting greenhouse gases, reduced amount under this will greatly projected project. Today’s opinion even delay longer.

I would affirm the of the Court of an end to this judgment Appeal put litigation. and real interest for a was petition respondents party rehearing 17, 2016,

denied and the was modified to read as February opinion printed above.

Case Details

Case Name: Center for Biological Diversity v. Department of Fish & Wildlife

Court Name: California Supreme Court

Date Published: Nov 30, 2015

Citation: 195 Cal. Rptr. 3d 247

Docket Number: S217763

Court Abbreviation: Cal.