FRIENDS OF THE COLLEGE OF SAN MATEO GARDENS v. SAN MATEO COUNTY COMMUNITY COLLEGE DISTRICTAppellants’ Reply to Supplemental BriefCal.June 23, 2016SUPREME COURT COPY Civil Case No. 8214061 SUPREME COURT FILED IN THE SUPREME COURT OF CALIFORNIA JU FRIENDS OF THE COLLEGE OF SAN MATEO GARDENS, Plaintiff and Respondent, Frank A. McGuire Clerk N23 2016 Vv. SAN MATEO COUNTY COMMUNITY COLLEGE DISTRICT; SAN *" MATEO COUNTY COMMUNITY COLLEGE DISTRICT BOARD OF TRUSTEES; and DOES1 through5, Defendants and Appellants. After an Unpublished Decision by the Court of Appeal First Appellate District, Division One, Case No.: A135892 Appeal from the Superior Court of the State of California for the County of San Mateo, the Honorable Clifford Cretan San Mateo County Superior Court Case No.: CIV 508656 SAN MATEO COUNTY COMMUNITY COLLEGEDISTRICT’S SUPPLEMENTAL REPLY BRIEF James G. Moose, SBN 119374 *Sabrina V. Teller, SBN 215759 REMY MOOSE MANLEY, LLP 555 Capitol Mall, Ste. 800 Sacramento, CA 95814 Telephone: 916-443-2745 Facsimile: 916-443-9017 Email: jmoose@rmmenvirolaw.com steller@rmmenvirolaw.com Attorneys for Defendants and Appellants SAN MATEO COUNTY COMMUNITY COLLEGEDISTRICTand SAN MATEO COUNTY COMMUNITY COLLEGEDISTRICT BOARD OF TRUSTEES Deputy Civil Case No. S214061 IN THE SUPREME COURT OF CALIFORNIA FRIENDS OF THE COLLEGE OF SAN MATEO GARDENS, Plaintiff and Respondent, Vv. SAN MATEO COUNTY COMMUNITY COLLEGEDISTRICT; SAN MATEO COUNTY COMMUNITY COLLEGE DISTRICT BOARD OF TRUSTEES; and DOES | through5, Defendants and Appellants. After an Unpublished Decision by the Court of Appeal First Appellate District, Division One, Case No.: A135892 Appeal from the Superior Court of the State of California for the County of San Mateo, the Honorable Clifford Cretan San Mateo County Superior Court Case No.: CIV 508656 SAN MATEO COUNTY COMMUNITY COLLEGEDISTRICT’S SUPPLEMENTAL REPLY BRIEF James G. Moose, SBN 119374 *Sabrina V. Teller, SBN 215759 REMY MOOSE MANLEY, LLP 555 Capitol Mall, Ste. 800 Sacramento, CA 95814 Telephone: 916-443-2745 Facsimile: 916-443-9017 Email: jmoose@rmmenvirolaw.com steller@rmmenvirolaw.com Attorneys for Defendants and Appellants SAN MATEO COUNTY COMMUNITY COLLEGE DISTRICTand SAN MATEO COUNTY COMMUNITY COLLEGE DISTRICT BOARD OF TRUSTEES TABLE OF CONTENTS I. INTRODUCTIONoccce eccecstecsseeeeseeeeseessecsesseseseseseeresseeesneeens j I. ARGUMENT..... cc cccccscscssessccseseecssseesesseeceeeeseeseeseesesaessseaseseeseeeeaes 2 A. Thelegislative history of Public Resources Code - section 21166 does not support Friends’ assertion that the Legislature’s omission of negative declarations waspurposeful or that such omission renders CEQA Guidelines section 15162 invalid...eeeeeeeeeeeteeseeeeeees 2 B. The regulatory history of CEQA Guidelines section 15162 contradicts Friends’ claim that negative declarations were addedto section 15162 following Benton v. Board ofSupervisors; they were actually added in 1978, long before Benton.........c.ccccccccccccseesteeeneeees 5 C. The only interpretation of Sections 21166 and 15162 that can be harmonized with the statute on the whole are the positions argued by the Attorney General and the District — that the substantial evidence standard applies in all subsequent review situations, and section 15162 is a valid regulation...eeeesseeeeeeeeeeesceteetseeeeeenes 6 TH. CONCLUSION2.ceeeceeeeseeseeeeeseneeseeseseeassaesnateneessesneeesaeees 8 CERTIFICATE OF WORD COUNToo.ccesetestecnecteereesersenenees 10 TABLE OF AUTHORITIES Cases Page(s) Abatti v. Imperial Irrigation District (2012) 205 Cal.App.4th 650 oo... eececcsessccsesecsccesssesessseeseeeseseesceeeeseesseeees 5 Benton v. Board ofSupervisors (1991) 226 Cal.App.3d 1467 ooo. eeceescscsecseceeeeeeceesseeceseaetsassasennerteees 3,5 Bowmanv. City ofPetaluma (1986) 185 Cal-App.3d 1065 oo.eseeseeeeseeeneeseenessaeeeseeeeeeeeeesees 3, 6,7 Laurel Heights Improvement Assn. v. Regents ofthe University ofCalifornia (1993) 6 Cal.4th 1112 oocceseseeccneeseteneeesncersneseceaessceesserseteaeesseeeeeeeres 7 People v. Overstreet (1986) 42 Cal.3d 891] oocccccsceseesstseteesseeesaeseeesseeeesteceseeeeeeesetteeeeaeeaees 3 Statutes Pub. Resources Code, § 21080.1 wo... cccccesssssnsccccessrecscnanseseeseseessesseseeeenes 7 Pub. Resources Code, § 21083 ooo... eeescessccseeeesececeseenseeaneeeeaeeseeseaeeessaeeneees 5 Pub. Resources Code, § 21151 oon. cscssssecesssneeeeeseeesecesseeensseessseseeeesnesees 6 Pub. Resources Code, § 21166 oo...eee eeeseeesscereseeeeeseeseeceaeeeeteaeeeness passim Pub. Resources Code, § 21167.3 oeeeceescceeseseeeeeeseeeseeeseeseeesceesneeeeeeeeeeess 7 Regulations [Cal. Code Regs., tit. 14, § 15000 et seq. ("CEQA Guidelines")] CEQA Guidelines, § 15064, subd. (£)(7) ....cccecscceesecstessecsseeceeseseseessneeeeseeaes 7 CEQA Guidelines, § 15162 oo... ccccscccccessseessseneesssseesseeecensenesseeenseeees passim CEQA Guidelines, § 15164 ooo. cccccecccssecssssececeessseessesssaeecssescenseeeeeseeesaes 6 i Sc o R R a R o e E E A R S I. INTRODUCTION Despite the facts that negative declarations are required in certain circumstances, andthatall potentially significant impacts of a proposed project must be clearly reduced to a less than significant level through mitigation measures in order for a lead agency to adopt a mitigated negative declaration instead of an EIR,Plaintiff/Respondent Friends of the College of San Mateo Gardens espouses the view that negative declarations provide little to no environmental protection and therefore must be subject forever to the heightened scrutiny and skepticism of the “fair argument” standard. But this cynical view of the wisdom and judgment both of the Legislature, in creating negative declarations as a valid CEQAtool, and of lead agencies, in using them,finds no support in the statute, CEQA Guidelines, or case law. The court should decline Friends’ invitations to consign negative declarations to second-class status under the law andto rewrite a 38-year-old CEQA Guideline regarding subsequent review ofprojects initially approved with negative declarations that has never been invalidated by any lowercourt. The language ofPublic Resources Code section 21166 and CEQA Guidelines section 15162 regarding the proper standard of review for agency decisions not to prepare supplemental or subsequent EIRs following the original adoptions of negative declarations is plain and clear. It is the substantial evidence standard. While this standard requires judicial deference to an agency andits administrative record on factual issues, the standardstill creates a significant hurdle for agencies that often requires them to generate extensive technical analysis and to spend considerable time to develop in order to adequately documenttheir decisions not to require subsequent or supplemental EIRs. And such decisions are, of course, themselves subject to legal challenge. Application of the substantial evidence standard in all subsequent review situations provides adequate protection of both CEQA’s environmental protection purposesandits co- equal policies of certainty and finality once the initial review process has been completed. The San Mateo County Community College District (District) agrees with the analysis and positions set forth by the California Attorney General in its Supplemental Brief on behalf of the California Natural Resources - Agency and the Governor’s Office of Planning and Research. The perspective of the Resources Agency and OPRregarding the meaning and intent of Public Resources Code section 21166 and CEQA Guidelines section 15162 should be given great weight because those agencies are statutorily charged with interpreting and implementing CEQA. I. ARGUMENT A. Thelegislative history of Public Resources Code section 21166 does not support Friends’ assertion that the Legislature’s omission of negative declarations was purposeful or that such omission renders CEQA Guidelines section 15162 invalid. Friends argues that the court should impute important legislative intent to a lack of action on Public Resources Code section 21166. (Friends’ Supp.Brief, pp. 6-7.) It is true that the Legislature has not added negative declarations to section 21166 while it added negative declarations to other sections of CEQA.But there is no basis for the court to assumethat the Legislature intentionally excluded negative declarations in section 21166 because the Legislature has a long standing intent for section 21166 not to apply to negative declarations. In the view of the District and the California Attorney General, however, the Legislature’s lack of action has a different, more compelling explanation: agreement with the CEQA Guidelines and case law, and the resulting absence of any desire or need to amendthestatute. As the District explained in its Supplemental Brief, the legislative history is devoid of any explanation for why the Legislature did not include negative declarations in section 21166 in 1973 or 1977 or why the Legislature has never since amendedthe statute to add them in the several decades since Guidelines section 15162 has included negative declarations. But, as the Attorney General noted in its supplemental brief, it is telling that, despite amending other provisions of the statute numeroustimes over the years, the Legislature has never enacted any changeseither to reject the Resources Agency’s inclusion ofnegative declarations in Guidelines section 15162 (added in 1978), or to refute the courts’ holdings in Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065 (Bowman) and Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467 (Benton) applying the substantial evidence standard to subsequent reviews following the certification of an EIR and following the adoption of a negative declaration, respectively. (AG’s Supp. Brief, pp. 13-14, citing People v. Overstreet (1986) 42 Cal.3d 891, 897 [Legislature is deemed to be aware of existing laws and judicial decisionsat the timelegislation is enacted].) Evidence in the regulatory history includes the lengthy discussion by the Resources Agencyin support of its 1994 amendments to Guidelines section 15162, in which the Agency explained its understanding ofwhy negative declarations were not included in section 21166 and why the Agency believed it was appropriate to include them in Guidelines section 15162: The terms “negative declaration” and “EJR”are appropriately used in tandem in sections (a) (1), (2) and (3). P.R.C. section 21166 whichsets the rules for subsequent EIRs is an old section datingfrom before the statute referred to negative declarations. At that time the Guidelines provided for negative declarations as the document to use whenthe agency determined that an EIR would not be required because the project would not havea significant effect on the environment. The courts recognized the validity of the negative declaration document, andlater the statute added references to negative declarations. In the meantime the courts interpreted references in the statute to an EIR as meaning an EIR or a negative declaration depending on whether the agency found that there would or would not be a significant effect on the environment. Accordingly, we have interpreted the references in Section 21166 as including either an EIR or a negative declaration and applying where a public agency hadpreviouslyprepared a CEQA environmental documentfor the project at hand. If the agencyprepared a negative declaration previously, and any ofthe circumstances described in Section 21166 occur, we believe that the standards in the section control. The agency’s decision as to whether to prepare a subsequent EIR would be subject to the substantial evidence standard of review rather than the morestringent “fair argument” standard that applies to a decision to prepare a first EIR or negative declaration for a project. We believe the language in the section is appropriate. (Joint Request for Judicial Notice [JRIN], Vol. I, p. 613, italics added.) In the absence of any evidencein the legislative history indicating that the Legislature intended to exclude negative declarations from the subsequent review scheme, and given the Legislature’s presumed knowledge of the evolution of the Guidelines and case law,there is no basis for assuming that the Legislature intended that, where the prior review for a project was based on a negative declaration, the standard of reviewforall future agency actions reauthorizing or modifying such a project would be the fair argument standard. /// /// B. Theregulatory history of CEQA Guidelines section 15162 contradicts Friends’ claim that negative declarations were added to section 15162 following Benton v. Board ofSupervisors; they were actually added in 1978, long before Benton. Friends falsely claims that the expansion of Guidelines section 15162 to include negative declarations occurred solely in response to the ruling in Benton, which it argues was erroneously decided. (Friends Supp. Brief, pp. 1, 3, 9.) In fact, section 15162’s predecessor, section 15067, was amendedto include negative declarations in 1978, 13 years before Benton was decided. (IRJN, Vol. II, pp. 331-332.) Thus, long before the Benton decision, the presumption against further environmental review embodied in Public Resources Codesection 21166 and implemented in Guidelines section 15162 applied equally to negative declarations and EIRs. In response to Benton, section 15162 was amendedto add reference to the substantial evidence standard, in large part because the claim made in that case by the plaintiffs and rejected by that court was the samethat Friends makes now:namely, that the fair argument standard, not the substantial evidence standard, should apply to an agency’s determination not to prepare an EIR following project approval based on a negative declaration. (Benton, supra, 226 Cal.App.3d at pp. 1477-1478; JRJN, Vol. Il, pp. 561-563.) But the reasoning of the court in Benton (and more recently, the court in Abatti v. Imperial Irrigation District (2012) 205 Cal.App.4th 650) was sound then andstill is sound today. As those courts held, section 15162, as applied to negative declarations,is a valid regulation by which the Office of Planning and Research (OPR)and the Resources Agency, using their broad rulemaking powers under Public Resources Code section 21083, permissibly filled a gap inPublic Resources Code section 21166 in order to give effect to the Legislature’s policies ofpromoting certainty and finality after the completion of the initial review processfor a project, as further discussed in the District’s opening supplemental brief. This court should uphold section 15162! inits entirety. C. The only interpretation of Sections 21166 and 15162 that can be harmonized with the statute on the whole are the positions argued by the Attorney General and the District — that the substantial evidence standard applies in all subsequent review situations, and section 15162 is a valid regulation. Friends concedes the logic of the Bowmandecision as applied to EIRsand claimsnot to dispute its reasoning (Friends Supp. Brief, pp. 8-9), yet Friends fails to coherently explain why the important principles of finality and certainty cited by the Bowman court in differentiating the standards found in Public Resources Code section 21151 and 21166 are not equally valid as applied to negative declarations: [Sections 21151 and 21166] serve quite different purposes and have correspondingly different effects. The question addressed by section 21151 is whether any environmental review is warranted. CEQA proceduresreflect a preference for resolving doubts in favor of such review. [Citations.] In the present case, however, section 21166 comesinto play precisely because in-depth review has already occurred, the time for challenging the sufficiency of the original EIR has already expired [citation], and the question is whether circumstances have changed enoughto justify repeating substantial portion of the process. Thus, while section 21151 is intended to create a “low threshold requirement for preparation of an EIR”[citation], section 21161 [sic] indicates a quite different intent, namely, to restrict the powersof agencies “by prohibiting [them] from requiring a 1 / Friends takes advantage of the opportunity of supplementalbriefing to argue that Guidelines section 15164 as applied to environmental review following negative declarations is also invalid. The court did not invite briefing on the scope and validity of section 15164, but to the extent that it considers Friends’ additional attacks on section 15164 anyway,the District believes that section 15164 is valid for the same reasonsthat section 15162 is valid. subsequent or supplemental environmental impact report” unless the stated conditions are met. (Bowman, supra, 185 Cal.App.3d at pp. 1073-1074, original italics.) The Bowmancourt consideredthe legislative history of section 21166 and determined that the reason for the Legislature’s decision to create a presumption against further review wasto “provide a balance against the burdens created by the environmental review process and to accord a reasonable measureoffinality and certainty to the results achieved.” (/d. at p. 1074.) Asthe District and the Attorney General explained in their supplemental briefs, the only interpretation that harmonizesall of the important policies and provisions of CEQA and the CEQA Guidelines, including the desired “balance” of burdens that the Bowmancourt acknowledged,is that the substantial evidence standard applies in all subsequent review situations. This court has also previously recognized this inherent need for balance in CEQA’s competing policies. (Laurel Heights Improvement Assn. v. Regents ofthe University ofCalifornia (1993) 6 Cal.4th 1112, 1130 (“Laurel Heights IT’) {“[a]fter certification, the interests of finality are favored over the policy of encouraging public comment”].) To decide otherwise would renderother portions of the statute and Guidelines meaningless or confusing. (See Pub. Resources Code, §§ 21080.1 [establishing a presumption of compliance andfinality for EIRs and negative declarations once the limitations period described in section 21167 has run]; 21167.3 [extending similar presumption of compliance and finality for projects subject to litigation until final judicial determination]; CEQA Guidelines, § 15064, subd. (f)(7) [“the fair argument standard does not apply to determinations of significance pursuantto sections 15162, 15163, and 15164”].) Iii. CONCLUSION Friends’ position that the fair argument standard must apply in perpetuity to projects initially reviewed with a negative declarationis rooted in their fundamental belief that negative declarations are an illegitimate form of “environmental review,” inadequateto the task of analyzing, disclosing, and mitigating environmental impacts. Such a dim view of an entire class of CEQA documents is not supported by the statutory mandates directing agencies to prepare negative declarations and mitigated negative declarations where appropriate, and instructing courts, the public, and other agencies to afford negative declarations the presumption of compliance,finality, and certainty once the initial review processhas run. Thosedirectives cannot be given their full effect or meaning if the court both adopts Friends’ arguments to subject projects originally analyzed in negative declarations to the fair argument standard in perpetuity and, in doing so, invalidates Guidelines section 15162.If adopted by the court, Friends’ approach would throw the long-accepted subsequent review process into turmoil and would causesignificant delays, substantial additional costs, duplicative and excessive documentation, and considerable uncertainty for public agencies and project proponents. /// /// The District respectfully urges the court to apply the plain language of section 15162 regarding the applicable standard of review, and to consider and respectthe balance of competing goals that OPR and the Resources Agencyhave effectuated in exercising their broad rule-making authority under CEQA. Respectfully submitted, Date: June 22, 2016 REMY MOOSE MANLEY, LLP By: QL,apoorN ‘Tg SABRINA V. TELLER Attorneys for Defendants/Appellants San Mateo County Community College District, et al. CERTIFICATE OF WORD COUNT Pursuant to Rule 8.520(c) of the California Rules of Court, I hereby certify that this SUPPLEMENTAL REPLYBRIEFcontains 2,315 words, according to the word counting function of the word processing program usedto preparethis petition. Executed on this 22nd day of June 2016, at Sacramento, California. SABRINA V. TELLER 10 Friends ofthe College ofSan Mateo Gardensv. San Mateo County Community College District, et al. SupremeCourtof California Case No.: S214061 (First Appellate District, Div. 1, Case No.: A135892; San Mateo County Superior Court Case No.: CIV508656) PROOF OF SERVICE I, Bonnie Thorne, am a citizen of the United States, employed in the City and County of Sacramento. My business address is 555 Capitol Mall, Suite 800, Sacramento, California 95814 and email addressis bthorne@rmmenvirolaw.com.I am over the age of 18 years and nota party to the above-entitled action. I am familiar with Remy Moose Manley, LLP's practice whereby the mail is sealed, given the appropriate postage and placed in a designated mail collection area. Each day's mail is collected and deposited in a U.S. mailbox after the close of each day's business. On June 22, 2016, I served the following: SAN MATEO COUNTY COMMUNITY COLLEGE DISTRICT’S SUPPLEMENTAL REPLY BRIEF Mi Ontheparties in this action by causing a true copy thereofto be placed in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing mail addressed as follows;or wi Onthe parties in this action by causing a true copy thereof to be delivered via Federal Express to the following person(s) or their representative at the address(es) listed below; or SEE ATTACHED SERVICE LIST I declare under penalty of perjury that the foregoing is true and correct and that this Proof of Service was executed this 22nd day of June, 2016, at Sacramento, California. Bonnie Thorne Sy me DE pN ER E SD Gt 5e Friends ofthe College ofSan Mateo Gardensv. San Mateo County Community College District, etal. Supreme Courtof California Case No.: S214061 (First Appellate District, Div. 1, Case No.: A135892; San Mateo County Superior Court Case No.: CIV508656) SERVICE LIST Susan L. Brandt-Hawley BRANDT-HAWLEY LAW GROUP 13760 Arnold Drive/ P.O. Box 1659 Glen Ellen, CA 95442 Tel.: (707) 938-3900 Fax: (707) 938-3200 Email: susanbh(@preservationlawyers.com Jeffrey Reusch OFFICE OF THE ATTORNEY GENERAL, DEPARTMENT OF JUSTICE 1300 I Street Sacramento, CA 95814 Tel: (916) 327-7851 Fax: (916) 327-2319 Email: Jeffrey.reusch@doj.ca.gov Sara Hedgpeth-Harris LAW OFFICES 2125 Kern Street, Suite 301 Fresno, CA 93721 Tel.: (559) 233-0907 Fax: (310) 798-2402 Email: sara.hedgpethharris@shh-law.com Michael W. Graf LAW OFFICES 227 BehrensStreet El Cerrito, CA 94530 Tel.: (510) 525-1208 Fax: (510) 525-1208 Email: mwgraf@aol.com Attorney for Plaintiff and Respondent Friends ofthe College ofSan Mateo Gardens VIA FEDERAL EXPRESS (courtesy copy via email) Attorney for California Natural Resources Agency and Governor’s Office ofPlanning and Research VIA FEDERAL EXPRESS Attorney for Amici Curiae Association ofIrritated Residents, Madera Oversight Coalition, Revive the San Joaquin, and Sierra Club VIA U.S. MAIL Attorney for Amicus Curiae High Sierra Rural Alliance VIA U.S. MAIL Jan Chatten-Brown AmyMinteer CHATTEN-BROWN & CARSTENS 2200 Pacific Coast Highway, Suite 318 Hermosa Beach, CA 90254 Tel.: (310) 798-2400 Fax: (310) 798-2402 Email: jcb@cbcearthlaw.com Andrew B. Sabey Linda C.Klein COX, CASTLE & NICHOLSON LLP 555 California Street, 10% Floor San Francisco, CA 94104 Tel.: (415) 262-5100 Fax: (415) 262-5199 Email: asabey@coxcastle.com Amanda Monchamp HOLLAND & KNIGHT LLP 50 California Street, 28" Floor San Francisco, CA 94111 Tel.: (415) 743-6900 Fax: (415) 743-6910 Email:amanda.monchamp(@hklaw.com Christian L. Marsh Amanda M.Pearson DOWNEY BRAND LLP 333 Bush Street, Suite 1400 San Francisco, CA 94104 Tel.: (415) 848-4800 Fax: (415) 848-4831 Email: apearson@downeybrand.com Richard T. Drury Lozeau Drury LLP 410 12th Street, Suite 250 Oakland, CA 94607 Tel: (510) 836-4200 Fax: (510) 836-4205 Email: richard@lozeadrury.com Attorneys for Amicus Curiae California Preservation Foundation VIA U.S. MAIL Attorneys for Amici Curiae California Building Industry Association, Building Industry Association ofthe Bay Area, and California Business Properties Association VIA U.S. MAIL Attorney for Amicus Curiae The Regents ofthe University of California VIA U.S. MAIL Attorneys for Amici Curiae League ofCalifornia Cities, California State Association of Counties, andAssociation of California Waste Water Agencies VIA U.S. MAIL Attomeys for Amici Curiae Communitiesfor a Better Environment, Environmental Defense Center, and Southern California District Council of Laborers VIA U.S. MAIL Clerk of the Court VIA U.S. MAIL First District Court ofAppeal Division One 350 McAllister Street San Francisco, CA 94102 Tel. (415) 865-7300 Clerk of the Court VIA U.S. MATL San Mateo County Superior Court 400 County Center Redwood City, CA 94063 Tel.: (650) 261-5201