Friends of Oroville v. City of Oroville

Filed 8/19/13
CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----

FRIENDS OF OROVILLE et al., C070448

Plaintiffs and Appellants, (Super. Ct. No. 152682)

v.

CITY OF OROVILLE et al.,

Defendants and Respondents;

WAL-MART STORES, INC.,

Real Party in Interest and
Respondent.

APPEAL from a judgment of the Superior Court of Butte County, Stephen E.
Benson, Judge. Reversed in part and affirmed in part.

William D. Kopper for Plaintiffs and Appellants.

Cota Cole, Derek P. Cole, Scott E. Huber and Daniel S. Roberts for Defendants
and Respondents.

K&L Gates and Edward P. Sangster for Real Party in Interest and Respondent.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, only the
introduction, the Factual and Procedural Background, the Standard of Review at the
beginning of the Discussion, part III.A. of the Discussion, and the Disposition of this
opinion are certified for publication.

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 In this action under the California Environmental Quality Act (CEQA) (Pub.
Resources Code, § 21000 et seq.),1 the Friends of Oroville and two individuals
(collectively plaintiffs) challenge the City of Oroville‟s (the City) approval of an
environmental impact report (EIR) for the project at issue—a relocated and expanded
Wal-Mart Supercenter to replace an existing Wal-Mart of traditional dimension and retail
offerings (the Project).

On appeal, plaintiffs contend the City‟s EIR (1) improperly found it was infeasible
for the Project to contribute its fair share mitigation for “Year 2030” cumulative traffic
impacts along eight intersections of Oroville Dam Boulevard (hereafter Oroville Dam
Blvd.), (2) inadequately analyzed the Project‟s hydrological impacts, (3) inadequately
analyzed the Project‟s greenhouse gas emissions, and (4) violated CEQA‟s notice
requirements. We find merit in plaintiffs‟ third contention (in published pt. III.A. of this
opinion), agree on a tangential point with their first contention, and reverse on those
bases, but otherwise shall affirm the judgment denying plaintiffs‟ petition for writ of
mandate.
FACTUAL AND PROCEDURAL BACKGROUND
The Project is a Wal-Mart Supercenter to replace an existing Wal-Mart store in the
City. The Project comprises a nearly 200,000-square-foot building and garden center
(about twice the size of the existing Wal-Mart store), and will provide 24-hour retail and
grocery services to the City and surrounding areas.

In January 2010, prior to the City‟s release of the draft environmental impact
report (DEIR), the City adopted resolution No. 7471. This resolution interpreted the
City‟s general plan to allow roadway segments, rather than intersections, to determine the
acceptable level of service for traffic along Oroville Dam Blvd.

1 Undesignated statutory references are to the Public Resources Code.

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 Plaintiffs earlier filed an action for writ of mandate challenging resolution
No. 7471. In response, the City repealed the resolution; and this necessitated a revision
of the DEIR‟s traffic section, which was undertaken in a partially recirculated draft
environmental impact report (PRDEIR).

In October 2010, the City released the final EIR, which included responses to
public and agency comment.

On November 10, 2010, the City‟s Planning Commission held a public hearing
and approved the EIR and the Project.

Plaintiffs appealed the Planning Commission‟s decision resulting in a de novo
public hearing before the City‟s City Council. This hearing took place on December 2,
2010, and was extended to December 14. On December 14, 2010, the City Council
approved the Project by denying plaintiffs‟ appeal, certifying the EIR, approving a
mitigation program, and adopting findings of fact and a statement of overriding
considerations (for significant impacts that could not be mitigated or mitigated fully).

We will set forth specific facts pertinent to the issues on appeal when we discuss
those issues.
DISCUSSION
Standard of Review
“In reviewing . . . CEQA issues on appeal, we determine, independently from the
trial court, whether [the] City prejudicially abused its discretion either by failing to
comply with legal procedures or by making a decision unsupported by substantial
evidence.” (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173,
1178 (Anderson).)

The substantial evidence standard—i.e., enough relevant information and
reasonable inferences to support a fair argument-based conclusion, even if other

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conclusions might also be reached—is applied in reviewing factually based findings,
conclusions and determinations. (Anderson, supra, 130 Cal.App.4th at p. 1178; Cal.
Code Regs., tit. 14, § 15384, subd. (a) (CEQA‟s regulatory guidelines; hereafter CEQA
Guidelines).)

In reviewing the adequacy of an EIR‟s environmental analyses, a reviewing court
does not pass upon the correctness of the EIR‟s environmental conclusions, but only upon
its sufficiency in providing informed decisionmaking and informed public participation,
thereby meeting the statutory goals of the EIR process. (Anderson, supra,
130 Cal.App.4th at p. 1178 .)

I. The Traffic Issues
Background and Contentions
Traffic impacts pose a major issue for the Project. And Oroville Dam Blvd.
(which is also State Route 162 in the City) comprises a large part of that issue.

Plaintiffs contend the City failed to adopt feasible mitigation for the Project‟s
contribution to Year 2030 cumulative traffic impacts to eight intersections on Oroville
Dam Blvd. because (1) the law and (2) substantial evidence, do not support the City‟s
finding that fair share fee-based mitigation is infeasible to reduce the Project‟s impact to
less than significant. We agree in a peripheral way with the first point and disagree as to
the second.

The revised traffic section in the PRDEIR concluded, among other things, that
these eight intersections along Oroville Dam Blvd. would operate at unacceptable levels
of service in 2030 due to cumulative traffic impacts. The PRDEIR‟s traffic analysis
estimated the Project‟s percentage contribution to these Year 2030 impacts at 5 and 6
percent for seven of the intersections, and 11 percent for the remaining intersection.

 See footnote, ante, page 1.

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 In mitigating these Year 2030 cumulative traffic impacts, the City imposed
“Mitigation Measure TRANS-2a” (MM TRANS-2a) on the Project, which requires that:
“Prior to issuance of building permits, [Wal-Mart] shall pay all transportation-related fees
to [the City] in accordance with [the City‟s] latest adopted fee schedule.”

The City explained MM TRANS-2a, as applied to the eight Oroville Dam Blvd.
intersections at issue, as follows: “[MM TRANS-2a] requires [Wal-Mart] to pay all
transportation-related fees, which constitutes the Project‟s fair share [toward mitigating
the Year 2030 cumulative traffic impacts]. However, at the time of the [PRDEIR], the
necessary improvements [on Oroville Dam Blvd.] were not identified in the City‟s
Traffic Capital Improvement Program [(Traffic Program)]. As such, there is no existing
mechanism in place for [Wal-Mart] to contribute its fair share, . . . render[ing] [these
improvements infeasible] and the residual significance of this impact significant and
unavoidable.” “[MM TRANS-2a] requires [Wal-Mart] to provide fair share [mitigation]
fees for improvements to these intersections [on Oroville Dam Blvd.] that would improve
[Year 2030] operations to acceptable levels. It is only because there is uncertainty about
whether all of these improvements can be implemented [per the Traffic Program, which
is currently being updated,] that [MM TRANS-2a] cannot be deemed to fully mitigate the
impact to a level of [less than] significant.” (Furthermore, the PRDEIR noted, and the
City recognized, that several of the Oroville Dam Blvd. improvements require widening
the roadway to three lanes in each direction, which is, additionally, not a feasible
improvement.)

The record shows that, when the City approved the EIR and the Project on
December 14, 2010, the Traffic Program update was expected to be completed by March
2011, and the transportation-related fee schedule was being updated along with the
Traffic Program update.

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 The City responded to a concern in the final EIR about MM TRANS-2a‟s
implementation as follows: “If the Project‟s building permits are issued prior to the City
updating its fee program per the update it is currently undertaking of the [Traffic
Program], the Project would still pay fees . . . . Some of the improvements required as a
result of cumulative impacts are not included in the current [Traffic Program], however,
and therefore no money would be collected towards those improvements. [¶] . . . [¶] . . .
[T]he City anticipates adopting the updated [Traffic Program] well before the Project
could obtain its building permits. Therefore, it is reasonable to assume that the Project
will pay fees towards the improvements identified in the EIR as currently being
considered for inclusion in the [Traffic Program].”
1. Legal infeasibility.
“A public agency must mitigate or avoid the significant environmental effects of a
project that it carries out or approves if it is feasible to do so.” (Tracy First v. City of
Tracy (2009) 177 Cal.App.4th 912, 937 (Tracy First).) “CEQA requires that feasible
mitigation measures actually be implemented as a condition of development, and not
merely be adopted and then neglected or disregarded.” (Anderson, supra,
130 Cal.App.4th at pp. 1186-1187.)

A fair share fee contribution by a single project to a mitigation fund addressing
cumulative impacts from multiple projects (which include the single project) constitutes
mitigation of the single project‟s impact to less than significant if the fair share fee is (1)
at least “roughly proportional” to the effects of the single project, and (2) part of a
reasonable, enforceable plan or program that is sufficiently tied to the actual mitigation of
the cumulative impacts at issue. (City of Marina v. Board of Trustees of California State
University (2006) 39 Cal.4th 341, 361-362 (City of Marina); Anderson, supra,
130 Cal.App.4th at pp. 1187-1189; Tracy First, supra, 177 Cal.App.4th at p. 937.)

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 Here, the City could not legally conclude that MM TRANS-2a would actually
mitigate the Project‟s contribution to Year 2030 cumulative traffic impacts (for the eight
intersections of Oroville Dam Blvd. at issue) to less than significant based on a fair share
mitigation fee. This is because, at the time the City approved the EIR and the Project, the
City‟s updated Traffic Program specifying future traffic improvements had not yet been
completed and adopted.

Instead, under MM TRANS-2a, the City required Wal-Mart, prior to the issuance
of building permits, to “pay all transportation-related fees to [the City] in accordance with
the latest adopted fee schedule.” This fee schedule was being updated along with the
Traffic Program update. In recognition of this, the PRDEIR stated that if improvements
to the eight intersections of Oroville Dam Blvd. at issue “are included in the [Traffic
Program], payment of fees in accordance with [MM TRANS-2a] would satisfy [Wal-
Mart‟s fair share] obligation.”

Thus, the City, as a matter of determining the legal feasibility of mitigation
measures for the eight Oroville Dam Blvd. intersections at issue, did what it could in
approving the EIR and the Project in the absence of an enforceable mitigation plan or
program at that point. In this absence, however, the City, in MM TRANS-2a, properly
conditioned the issuance of building permits to Wal-Mart on Wal-Mart‟s payment of all
transportation-related fees to the City in accordance with the latest adopted fee schedule.
As this court observed in Tracy First, “[m]itigation measures adopted by [an] agency
must be fully enforceable. „A public agency shall provide that measures to mitigate or
avoid significant effects on the environment are fully enforceable through permit
conditions, agreements, or other measures. . . .‟ ([§ 21081.6, subd. (b); CEQA
Guidelines, § 15126.4, subd. (a)(2)].)” (Tracy First, supra, 177 Cal.App.4th at p. 937.)

However, in Wal-Mart‟s respondent‟s brief on appeal (a brief the City joins in
full), Wal-Mart problematically interprets MM TRANS-2a as providing that “if the City

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amends it[s] [Traffic Program] before the City issues building permits to Wal-Mart, Wal-
Mart will have to pay its share of improvements included in that program.” (Italics
added.) One corollary to this interpretation is that if the City does not so amend, Wal-
Mart will not have to pay its share of improvements in the Traffic Program. Given that
the transportation-related fee schedule is being updated along with the Traffic Program
update, we think it necessary to confirm that the issuance of building permits is a
provision which ensures that Wal-Mart, as required by MM TRANS-2a, pays “all
transportation-related fees to [the City] in accordance with the latest adopted fee
schedule,” and not a provision that excuses such payment depending on when building
permits are issued. In short, the issuance of building permits is a measure to ensure Wal-
Mart‟s transportation-related fee schedule payment, not a measure to thwart it.

Accordingly, we will reverse the judgment denying plaintiffs‟ petition for writ of
mandate as to this specific issue, and direct the trial court to grant the petition to that
extent—i.e., confirm that Wal-Mart has paid or will pay “all transportation-related fees to
[the City] in accordance with the latest adopted fee schedule,” as required by MM
TRANS-2a.
2. Substantial evidence infeasibility.
Plaintiffs claim that virtually all the evidence in the record shows that prior to the
Project‟s approval, it was feasible for the City to include, in the City‟s Traffic Program,
mitigation measures for the Project‟s contribution to the Year 2030 cumulative traffic
impacts to the eight intersections at issue on Oroville Dam Blvd.; and therefore, the
City‟s finding that it was infeasible to mitigate these impacts to less than significant was
not based on substantial evidence. Based on this evidentiary posture, plaintiffs maintain
that Wal-Mart refused to pay its fair share contribution to mitigating these cumulative
impacts, and that the City shielded Wal-Mart from paying its fair share so as not to
jeopardize the Project.

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 To support their substantial evidence claim, plaintiffs rely on the following three
lines of evidence.

First, plaintiffs point to the City‟s resolution No. 7471, which defined acceptable
traffic service levels based on the less impacted roadway segments along Oroville Dam
Blvd. rather than on the customary more impacted intersections. The City repealed this
resolution, though (albeit in the face of litigation from plaintiffs).

Second, plaintiffs maintain that almost all of the relevant fair share information for
the Project had been compiled for the earlier DEIR, and simply needed to be incorporated
into the later PRDEIR. However, the PRDEIR necessitated a new traffic study, and the
relevant traffic information in the DEIR comprised only percentages of Wal-Mart‟s
cumulative impact contribution to each of the eight intersections at issue (not estimated
costs). As plaintiffs acknowledge in their reply brief, “the City knew Wal-Mart‟s fair
share percentage of the [Oroville Dam Blvd. intersection impacts] and . . . only needed to
determine the cost of the improvements and take the administrative action of adding the
needed intersection improvements to the [Traffic Program].” (Italics added.) This “only
needed” to-do list is a substantial one, however.

And, third, plaintiffs cite to a December 2009 e-mail communication from Wal-
Mart‟s attorney to the City. That communication asks “the City to confirm what
improvements [the City] will be including in the [Traffic Program] that will be used to
calculate the traffic fee”; and notes, “the City has stated it has now identified the final
improvements that will be included in the [Traffic Program].” Although this
communication was made about a year before the City approved the Project, it also
shows that Wal-Mart was willing to pay the traffic fee based on improvements identified
in the Traffic Program; as the communication further explained, Wal-Mart simply did not
want to pay the fee twice, once to construct the improvement and then again for the
improvement.

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 Finally, plaintiffs‟ substantial evidence contention also rests on a flimsy
foundation. The Traffic Program applied to the City as a whole; the eight Oroville Dam
Blvd. intersections at issue were just a fragment of its focus.

We conclude there is substantial evidence to support the City‟s finding that it was
infeasible to mitigate to less than significant the Project‟s Year 2030 cumulative traffic
impact to the eight intersections of Oroville Dam Blvd., given that the Traffic Program
had not yet been completed and adopted when the City approved the EIR and the Project.

II. Analysis of Hydrological Impacts

Plaintiffs raise four contentions on this subject.
A. Baseline Description of Hydrological Conditions
Plaintiffs have two concerns here.

The first concern is with “Mitigation Measure HYD-4” (MM HYD-4), which
specifies that, prior to issuance of grading permits for the Project, Wal-Mart shall retain a
qualified civil engineer to prepare and submit a drainage plan for City‟s approval that
identifies onsite drainage facilities to ensure that runoff from the Project site is released at
a rate no greater than that of the “pre-development condition.”

Plaintiffs claim the EIR fails to analyze existing water percolation rates through
the highly permeable mining tailings on the Project site and, without that information, it
cannot be determined whether there is a feasible drainage solution that will ensure the
runoff rate is no greater than pre-development conditions, as MM HYD-4 requires.

The EIR, however, included a geotechnical investigation. This investigation
analyzed the surface and subsurface composition of the Project site, including the mining
tailings thereon, and performed three distinct tests of how those conditions currently

 See footnote, ante, page 1.

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affect water percolation. Furthermore, baseline information about the percolation rates of
the mining tailings on the Project site will be part of a required study for the MM HYD-4
drainage plan. Finally, the MM HYD-4 standard of no greater runoff rate is designed to
avoid a project-related increase in flooding of adjacent properties during storm events, a
standard ascertainable from pre-development flood information.

Plaintiffs‟ second concern centers on “Mitigation Measure HYD-2a” (MM HYD-
2a). That mitigation measure specifies that prior to issuance of building permits for the
Project, Wal-Mart shall submit a stormwater management plan for the City‟s approval
that identifies pollution prevention measures to prevent polluted runoff from leaving the
Project site, that accounts for the Project‟s net increase of nearly 21 acres of impervious
surface area, and that ensures that water quality in downstream water bodies is not
degraded. MM HYD-2a specifies 11 pollution prevention measures that this plan must
include, but is not limited to; in a response to comments on stormwater quality, the EIR
notes that these prevention measures have been “widely employed and . . . demonstrated
to be effective means at controlling and preventing pollution from entering downstream
waterways.”

Plaintiffs claim the EIR fails to include information about the baseline water
quality conditions at the Project site and the receiving water body, the nearby Feather
River.

As for existing water quality, the EIR states, however, that “[t]here are no water
bodies in [the City] area listed on the 2006 [federal] Clean Water Act[‟s] . . . list of
impaired water bodies. As such, no [pollution-remedial] Total Maximum Daily Load
requirements are in effect for any surface water bodies in the Oroville area.”
Furthermore, as with percolation rates, existing runoff from the Project site will be part of
the study for the MM HYD-4 drainage plan.

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 We conclude that the EIR‟s description of the challenged baseline hydrological
information is adequate.
B. Drainage Facilities and Drainage Impacts
As for the issue of drainage facilities, plaintiffs‟ hydrology expert commented in
the EIR process that because of the highly permeable mining tailings on the Project site,
the Project would need facilities to temporarily store about 32 acre-feet of water each
year to ensure that the runoff rate is no greater than pre-development conditions, as MM
HYD-4 requires.

Plaintiffs contend the EIR is inadequate because it fails to describe a stormwater
detention basin to address this comment. However, the Project‟s documents included a
plan submitted to the City‟s Design Review Board that showed a preliminary design
schematic illustration of proposed-site stormwater catch basins, including how those
basins would connect to the proposed drainage system for the Project. All that plaintiffs
can muster in their reply brief to this fact is the tepid remark that “[t]his reference
provides no additional information about the stormwater detention basin or other
facilities to retain stormwater on site.”

As for the issue of drainage impacts, plaintiffs assert that, in view of the highly
permeable mining tailings on the Project site, the Project‟s 21-acre increase of
impervious surface, the site‟s location “almost adjacent” to the Feather River, and the
comments related thereto by plaintiffs‟ hydrology expert and Caltrans, the EIR was
required to provide a drainage study that would provide more information about the
Project‟s drainage impacts and the feasibility of mitigation.

The EIR describes the existing drainage system and the proposed new drainage
system, and sets forth three detailed pages of responses to comments on drainage and
stormwater quality. Furthermore, this issue of drainage impacts covers the same ground

12
that plaintiffs‟ baseline issues regarding drainage and pollution runoff covered in part
II.A., ante, of this discussion. We need not repeat that discussion here.
C. Deferral of Mitigation
Plaintiffs contend that MM HYD-2a (i.e., the stormwater management/pollution
runoff plan) and MM HYD-4 (i.e., the drainage plan) improperly defer formulation of
specific mitigation strategies until after the Project‟s approval. We disagree.

Deferral of mitigation specifics is permissible where the relevant agency commits
itself to mitigation and articulates specific performance criteria or standards that must be
met for the project to proceed. (Endangered Habitats League, Inc. v. County of Orange
(2005) 131 Cal.App.4th 777, 793-794; Defend the Bay v. City of Irvine (2004)
119 Cal.App.4th 1261, 1275-1276.) The two challenged mitigation measures comply
with this principle.

MM HYD-2a states that prior to the issuance of building permits Wal-Mart must
submit for the City‟s approval a stormwater management plan that contains, but is not
limited to, 11 specified pollution prevention measures to prevent polluted runoff from
leaving the Project‟s site. These specified measures, the EIR notes, have been “widely
employed and . . . demonstrated to be effective means at controlling and preventing
pollution from entering downstream waterways,” and implement “Best Management
Practices” in controlling stormwater runoff quality.

MM HYD-4 provides that prior to the issuance of grading permits Wal-Mart shall
retain a qualified civil engineer to prepare and submit for the City‟s approval a drainage
plan “that will ensure that runoff from the [P]roject site is released at a rate no greater
than that of the pre-development condition.” This standard seeks to avoid any project-
related increase in flooding of adjacent properties during storm events, a standard, as
noted, ascertainable from pre-development flood information.

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 D. Water Quality Impacts
As to this issue, plaintiffs again argue, in a nutshell, that “[b]ecause of the high
permeability of the site and the Project‟s contribution of oil, gas and heavy metals to
stormwater runoff, the EIR needs to provide additional information about the stormwater
pollution control facilities to comply with CEQA.” We disagree, for the reasons already
stated.

III. Greenhouse Gas Emissions

Plaintiffs raise two basic issues relating to greenhouse gas (GHG) emissions. The
first one is:
A. Substantial Evidence Does Not Support the City’s Finding That
the Project’s GHG Emissions Will Have a Less Than
Significant Environmental Impact After Mitigation

We agree.
Legal Background
The EIR primarily analyzed the environmental impact of the Project‟s GHG
emissions according to a CEQA Guideline that was adopted around the same time the
DEIR was completed—CEQA Guidelines section 15064.4, entitled “Determining the
Significance of Impacts from Greenhouse Gas Emissions.” This Guideline provides in
pertinent part:

“(a) The determination of the significance of greenhouse gas emissions calls for a
careful judgment by the lead agency consistent with the provisions in [CEQA Guidelines]
section 15064 [(§ 15064, subd. (b) requires lead agencies to evaluate potential
environmental effects based on scientific and factual data, to the extent possible)]. A lead
agency should make a good-faith effort, based to the extent possible on scientific and
factual data, to describe, calculate or estimate the amount of greenhouse gas emissions

 See footnote, ante, page 1.

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resulting from a project. A lead agency shall have discretion to determine, in the context
of a particular project, whether to:

“(1) Use a model or methodology to quantify greenhouse gas emissions resulting
from a project, and which model or methodology to use. . . . ; and/or

“(2) Rely on a qualitative analysis or performance based standards.

“(b) A lead agency should consider the following factors, among others, when
assessing the significance of impacts from greenhouse gas emissions on the environment:

“(1) The extent to which the project may increase or reduce greenhouse gas
emissions as compared to the existing environmental setting;

“(2) Whether the project emissions exceed a threshold of significance that the lead
agency determines applies to the project[;]

“(3) The extent to which the project complies with regulations or requirements
adopted to implement a statewide, regional, or local plan for the reduction or mitigation
of greenhouse gas emissions. Such requirements must be adopted by the relevant public
agency through a public review process and must reduce or mitigate the project‟s
incremental contribution of greenhouse gas emissions. . . .”

Neither the City nor the Butte County Air Quality Management District, at the
time of the EIR, had adopted a plan or strategy for reducing GHG emissions that would
apply to the Project. As a result the City adopted, as a threshold-of-significance standard
for determining whether the Project‟s GHG emissions constituted a significant
environmental impact, the following standard: “[W]hether the [P]roject would
significantly hinder or delay California‟s ability to meet the reduction targets contained in
[Assembly Bill No.] 32”—the state legislation addressing GHG emissions (the California
Global Warming Solutions Act of 2006). (Health & Saf. Code, § 38500 et seq., enacted
by Assem. Bill No. 32 (2005-2006 Reg. Sess.) (hereafter Assembly Bill 32).) As the EIR

15
explains, Assembly Bill 32 “focuses on reducing greenhouse gases [including carbon
dioxide] to 1990 levels by the year 2020. Pursuant to the requirements in [Assembly
Bill] 32, a Scoping Plan was adopted [which] outlines actions recommended to obtain
that goal.” According to the EIR, the Scoping Plan (developed by the State Air
Resources Board) “calls for [a] . . . reduction in California‟s [GHG] emissions, cutting
approximately 30 percent from business-as-usual emission levels projected for 2020, or
about 10 percent from today‟s levels [i.e., 2010, when the EIR here was drafted].”

Besides the formal Scoping Plan, the EIR also analyzed the Project‟s GHG
emissions under the following informal/voluntary guides for mitigating GHG emission
impacts: the State Air Resources Board‟s “Early Action Measures” (which focus on cool
roofs and pavements, and shade trees); the California Attorney General‟s Web site list of
“CEQA Mitigations for Global Warming Impacts” (which focus on water and energy
conservation; recycling promotion; waste reduction; and non-vehicular accessibility); and
a 2008 “white paper” from the California Air Pollution Control Officers Association
(which focuses on matters similar to the previous two guides).
Factual Background
The EIR found the following.

Nearly all of the Project‟s GHG emissions will be in the form of carbon dioxide,
except for refrigerant use which does not emit that gas (refrigerant use will comprise
about 17 percent of the Project‟s total GHG emissions).

At buildout, the Project‟s (operational) GHG emissions will constitute nearly
15,000 metric tons of carbon dioxide equivalents per year, which is 0.003 percent of
California‟s 2004 emissions. About 68 percent of these emissions will be from motor
vehicles. The Project‟s remaining GHG emission sources, in terms of percentage of
contribution, are as follows: natural gas use—4 percent; electrical generation—11
percent; and refrigerant use—as noted, 17 percent.

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 The mitigation measures adopted for the Project‟s GHG emissions comprise solar
reflective paving and roofing materials (MM AIR-8a, MM AIR-8d); the turning off of
truck engines in the loading docks (MM AIR-8b); refrigerant measures that reduce leaks
and increase recycling (MM AIR-8c); energy efficiency measures, principally involving
lighting, heating, cooling, and refrigeration (MM AIR-8d); and a landscaping plan,
emphasizing shade trees in the parking lot (MM AIR 8-e).

Based on this mitigation, the EIR concluded that, since the Project‟s contribution
to California‟s GHG emissions is less than significant (literally, miniscule), the Project
would not significantly hinder or delay California‟s ability to meet the GHG reduction
targets contained in Assembly Bill 32; and, therefore, the Project‟s environmental
impacts from GHG emissions are less than significant.
Analysis
The City properly adopted Assembly Bill 32‟s reduction targets for GHG
emissions as the threshold-of-significance standard in determining whether the Project‟s
GHG emissions constituted a significant environmental impact. The same standard was
deemed proper in Citizens for Responsible Equitable Environmental Development v. City
of Chula Vista (2011) 197 Cal.App.4th 327 (Citizens); the project there was a newer,
larger Target store to replace an older one (id. at pp. 335-336; see id. at p. 330).

The problem is the City improperly applied this proper standard in concluding that
the Project‟s environmental impacts from GHG emissions are less than significant.
Citizens, again, exemplifies the model, showing us a proper way to apply the Assembly
Bill 32 threshold-of-significance standard.

As Citizens explains, the GHG analysis there “listed the [GHG] emissions for
„business as usual‟ for the existing Target store and the proposed store at 8,280 metric
tons per year and 10,337 metric tons per year, respectively. Thus, under „business as
usual‟ the proposed Target store would increase greenhouse gas emissions by 2,057

17
metric tons. However, through the implementation of energy saving measures, the . . .
greenhouse gas emissions for the proposed store are reduced to 7,381 metric tons per
year, or 2,956 metric tons less than „business as usual.‟ This amounts to a 29 percent
reduction from business as usual” (Citizens, supra, 197 Cal.App.4th at p. 337), more than
meeting the Assembly Bill 32 target reduction of 25 percent for the year 2020 from
business-as-usual emissions (this 25 percent figure was estimated by the GHG analysis in
Citizens). Furthermore, the energy-saving measures in Citizens reduced existing GHG
emissions by nearly 900 metric tons, more than meeting Assembly Bill 32‟s alternative
target reduction of 10 percent from current (2010) emissions (this 10 percent figure is set
forth in the Scoping Plan for Assembly Bill 32, according to the EIR here). (Citizens,
supra, at p. 337; see id. at p. 336.)

Drawing from Citizens, we conclude the City misapplied the Assembly Bill 32
threshold-of-significance standard in two related ways: (1) by applying a meaningless,
relative number to determine insignificant impact; and (2) by failing to ascertain the
existing Wal-Mart‟s GHG emissions, and the impact on GHG emissions from the
Project‟s mitigation measures.

First, the City noted that the Project, at buildout, would emit operationally about
15,000 metric tons of carbon dioxide equivalents yearly, which is 0.003 percent (i.e., just
3 one-thousandths of 1 percent) of California‟s 2004 GHG emissions. This relative
comparison is meaningless, though, in determining the Project‟s environmental impact
regarding GHG emissions. It conjures a comparison worse than apples to oranges. Of
course, one store‟s GHG emissions will pale in comparison to those of the world‟s eighth
largest economy. The relevant question to be addressed in the EIR is not the relative
amount of GHG emitted by the Project when compared with California‟s GHG
emissions, but whether the Project‟s GHG emissions should be considered significant in
light of the threshold-of-significance standard of Assembly Bill 32, which seeks to cut

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about 30 percent from business-as-usual emission levels projected for 2020, or about 10
percent from 2010 levels. (See Communities for a Better Environment v. California
Resources Agency (2002) 103 Cal.App.4th 98, 118-120 [discussing an analogous issue of
how to determine whether a project‟s relatively small, additional environmental impact is
significant in an area already highly impacted].)

Second, the City misapplied the Assembly Bill 32 threshold-of-significance
standard by failing to calculate the GHG emissions for the existing Wal-Mart and failing
to quantitatively or qualitatively ascertain or estimate the effect of the Project‟s
mitigation measures on GHG emissions (MM AIR-8a through MM AIR-8e). (See
CEQA Guidelines, § 15064.4, subd. (a).) Without these determinations, ascertaining
whether Assembly Bill 32‟s target reductions are being met is difficult if not futile. The
EIR quantified the GHG emissions for the proposed Project (precisely 14,817 metric tons
of carbon dioxide equivalents per year for operational emissions) and the sources
comprising those emissions in percentage terms (motor vehicle—68 percent; natural
gas—4 percent; electrical generation—11 percent; refrigerant use—17 percent), but
failed to do so for the existing Wal-Mart store. Surely, if these precise calculations could
be done for the proposed Project, something similar can be done for the existing Wal-
Mart. Nor did the EIR make any attempt to determine or estimate the quantitative or
qualitative effect on GHG emissions from MM AIR-8a through MM AIR-8e.
Consequently, the EIR does not sufficiently show whether Assembly Bill 32‟s target
reductions are being met. These calculations were done in Citizens. (Citizens, supra,
197 Cal.App.4th at p. 337.) Such calculations and estimates, or a reasonable equivalent,
must be done here.

Wal-Mart, in claiming the EIR properly applied the Assembly Bill 32 threshold-
of-significance standard, relies primarily on two factors: (1) the measures set forth in the

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Assembly Bill 32 Scoping Plan to reduce GHG emissions; and (2) a particular traffic
study and conclusion.

The Assembly Bill 32 Scoping Plan, as noted, was developed by the State Air
Resources Board and outlines measures (transportation-, energy-, and environmental-
related measures) to achieve the threshold-of-significance standard of Assembly Bill 32,
which, according to the EIR, seeks to cut about 30 percent from business-as-usual
emission levels projected for 2020, or about 10 percent from 2010 levels. The EIR
recognizes, however, that “most of the reduction measures [specified in the Scoping Plan
for reducing GHG emissions] are not applicable to the [P]roject.” As Wal-Mart explains
in its respondent‟s brief on appeal: “The City considered the provisions of „Scoping Plan
Measures‟ . . . to achieve [Assembly Bill] 32 targets. Those that related to transportation
were inapplicable to the Project because they had to be implemented at a statewide
level.” Thus, while the energy- and environmental-related measures of the Scoping Plan
may apply to the Project, the transportation-related measures do not; and, as we have
seen, transportation-related GHG emissions comprise nearly 70 percent of the Project‟s
GHG emissions.

By placing great weight on Scoping Plan consistency to sustain the City‟s finding
that the Project‟s GHG emissions will have a less than significant impact after mitigation,
Wal-Mart ignores the elephant in the room—68 percent of the Project‟s GHG emissions
come from motor vehicles. As noted, the EIR does not provide any figures regarding the
existing Wal-Mart‟s GHG emissions, or any figures regarding the effect of the Project‟s
mitigation measures on GHG emissions (MM AIR-8a through MM AIR-8e, which are
largely energy- and environmental-related measures). (Contra, Citizens, supra,
197 Cal.App.4th at p. 337.)

Nor does the traffic study and conclusion, upon which Wal-Mart relies, help
matters. The EIR, in its section on energy conservation, citing the traffic study and

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conclusion, states: “The Institute of Transportation Engineers[,] Trip Generation [(8th
ed. 2008)] indicates that a freestanding discount superstore (e.g., a [Wal-Mart] with a
grocery component) generates 4.09 fewer daily trips per 1,000 square feet than a
freestanding discount store (e.g., a conventional [Wal-Mart] without a grocery
component).” From this, the EIR concludes that a one-stop shopping destination (i.e., a
superstore) may reduce multiple and out-of-town trips for the City‟s residents. However,
the EIR, in its section on GHG emissions, concludes that the Project will “not result in
any significant changes in vehicle miles traveled”; and, in yet another section (on
transportation), suggests that the Project is so large a retail destination, there will be
round trips to it of up to 40 miles from neighboring communities. These speculative and
contradictory conclusions do not close the evidentiary sufficiency gap involving the
City‟s finding that the Project‟s GHG emissions will have a less than significant
environmental impact after mitigation.

We conclude there is insufficient evidence to support the City‟s finding that the
Project‟s GHG emissions will have a less than significant environmental impact after
mitigation. [END OF PUBLISHED PART III.A.]
B. MM AIR-8a Complies with CEQA

In their second contention involving GHG emissions, plaintiffs take issue with
“Mitigation Measure AIR-8a” (MM AIR-8a).

MM AIR-8a states: “Prior to issuance of the certificate of occupancy, [Wal-Mart]
shall install paving materials with increased solar reflectivity such as light-colored
aggregate in appropriate areas of the [P]roject site. This mitigation measure shall not
apply in areas where paving materials must meet specific performance criteria.”

Plaintiffs argue that MM AIR-8a does not provide any specific performance
criteria, thereby allowing “the City to pave the entire parking lot in asphalt” and

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rendering the mitigation measure ineffective. (See § 21002 [mitigation measures must be
effective].) We disagree.

A reasonable reading of MM AIR-8a makes it effective: Wal-Mart is required to
use solar reflective pavement in appropriate areas, given the type of traffic that will use
that pavement.

IV. Notice

Plaintiffs contend the City violated CEQA‟s notice requirements in two respects:
(1) by failing to post with the County Clerk the “Notice of Availability” (NOA) of the
DEIR and the PRDEIR; and (2) by failing to mail the NOA of the PRDEIR to the
individuals on the notice list, including plaintiffs.

As relevant here, CEQA requires that the pertinent public agency provide NOA of
any draft EIR in the following three ways: (1) publish the NOA in a newspaper of
general circulation (§ 21092); (2) post the NOA for 30 days with the County Clerk
(§ 21092.3); and (3) mail the NOA to any individual who has properly requested such
notice (§ 21092.2). As also relevant here, CEQA sets forth a 45-day public review period
for a draft EIR. (§ 21091, subd. (a).)

As for publication, there is no dispute that the City properly published the NOA
for the DEIR and the PRDEIR.

As for posting, there is some evidence that the DEIR‟s NOA was posted, but no
such evidence for the PRDEIR.

As for mailing, the City did not mail the NOA for the PRDEIR, but did mail the
NOA for the final EIR, and the final EIR included the PRDEIR.

 See footnote, ante, page 1.

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 As for timing, plaintiffs had about 10 days to review the PRDEIR before the
November 10, 2010 Planning Commission hearing on EIR approval, and 46 days to
review the PRDEIR before the December 14, 2010 (continued) City Council hearing on
EIR approval, based on the mailed NOA for the final EIR (which, as noted, included the
PRDEIR).

Where the failure to comply with CEQA procedural law subverts CEQA‟s
purposes by omitting information from, or foreclosing participation in, the environmental
review process, the error is prejudicial. (Schenck v. County of Sonoma (2011)
198 Cal.App.4th 949, 958-960 (Schenck); Rural Landowners Assn. v. City Council (1983)
143 Cal.App.3d 1013, 1023 (Rural Landowners); see Environmental Protection
Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th
459, 484-487.) At least in connection with section 21092 (i.e., publication; and
presumably in connection with the other notice statutes), CEQA‟s requirements for public
notice are fulfilled if the public agency makes a good faith effort to follow the prescribed
procedures for giving notice (assuming CEQA‟s informational and participation purposes
have not been subverted). (Gilroy Citizens for Responsible Planning v. City of Gilroy
(2006) 140 Cal.App.4th 911, 924; see Schenck, supra, at pp. 958-960; Rural
Landowners, supra, at p. 1023.) As we shall see, CEQA was not subverted by the legally
deficient notice given here; therefore, this deficiency was not prejudicial and does not
require reversal.

Plaintiffs were given about 10 days‟ notice of the PRDEIR, before the Planning
Commission hearing on EIR approval took place on November 10, 2010; and 46 days of
notice before the City Council approved the EIR on December 14, 2010.

For the Planning Commission hearing, plaintiffs (through counsel) submitted
extensive written comments regarding the PRDEIR, and they actively participated at that
hearing, along with 27 other citizens who addressed the Commission.

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 Plaintiffs appealed the Planning Commission decision approving the EIR to the
City Council, and again submitted extensive written opposition to the EIR.

The City Council held a hearing on December 2, 2010, regarding EIR approval
and plaintiffs‟ appeal. Pursuant to law, this hearing was de novo (i.e., independent of the
Planning Commission‟s decision). (See Gov. Code, §§ 65903-65904; see also BreakZone
Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1221.)

More than 25 citizens addressed the Council at the December 2 hearing. The City
Council continued the hearing to December 14, 2010, to enable staff to review and
respond to plaintiffs‟ EIR opposition. The City obtained from its own consultants more
than 100 pages of responses to plaintiffs‟ EIR comments.

After considering plaintiffs‟ views, along with those of several other citizens, the
City Council approved the EIR at the December 14 hearing.2

Given the final EIR notice provided here to plaintiffs (which included notice of the
PRDEIR); the properly published NOA for the DEIR and the PRDEIR; the opportunity
for plaintiffs to genuinely participate at the Planning Commission hearing; the 46-day
review period preceding the continued City Council hearing; the de novo nature of the
City Council hearing; the opportunity for plaintiffs to fully participate at the City Council
hearing and have their EIR comments addressed; and the extensive participation by the
public at the Planning Commission and the City Council hearings, we conclude that the
legally deficient notice here did not subvert CEQA by omitting information from, or
limiting participation in, the environmental review process. (Schenck, supra,

2 At oral argument in this court, plaintiffs‟ counsel raised for the first time that the City‟s
insufficient notice foreclosed plaintiffs from being able to adequately respond to the
City‟s responses to the EIR comments plaintiffs submitted for the December 2 hearing.
Plaintiffs failed to assert this point earlier and cannot raise it for the first time at oral
argument. (Starzynski v. Capital Public Radio, Inc. (2001) 88 Cal.App.4th 33, 38, fn. 2.)

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198 Cal.App.4th at pp. 958-960; Rural Landowners, supra, 143 Cal.App.3d at p. 1023;
see Rural Landowners, at p. 1020.) Consequently, that deficient notice was not
prejudicial and does not require reversal. (Schenck, supra, 198 Cal.App.4th at pp. 958-
960; Rural Landowners, supra, 143 Cal.App.3d at p. 1023; see Rural Landowners, at
p. 1020.) [REMAINDER OF OPINION TO BE PUBLISHED]
DISPOSITION
We reverse the judgment to the extent it denied plaintiffs‟ petition for writ of
mandate—and we remand this matter to the trial court to grant the petition—as to the
following two EIR issues: (1) to ensure Wal-Mart has paid or will pay “all
transportation-related fees to [the City] in accordance with the latest adopted fee
schedule,” as required by MM TRANS-2a of the EIR approved by the City; and (2) to
ensure the Project‟s GHG emissions constitute a significant or a less than significant
environmental impact in light of a proper application of the threshold-of-significance
standard of Assembly Bill 32, which, according to the EIR, seeks to cut about 30 percent
from business-as-usual emission levels projected for 2020, or about 10 percent from 2010
levels. As part of this analysis, the EIR must set forth how the Project‟s EIR-specified
operational GHG emissions compare to those for the existing Wal-Mart store, and must
provide a quantitative or qualitative determination or estimate of the mitigation measures‟
effect on GHG emissions (MM AIR-8a through MM AIR-8e). In all other respects, the
judgment is affirmed. Plaintiffs are awarded their costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(3).) (CERTIFIED FOR PARTIAL PUBLICATION)

BUTZ , Acting P. J.
We concur:

MAURO , J.

MURRAY , J.

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