Carrancho v. California Air Resources Bd., C040237.

• Court: California Court of Appeals
• Citation: 111 Cal.App.4th 1255,4 Cal.Rptr.3d 536
• Decision Date: 13 August 2003
• Docket Number: No. C040237.,C040237.
• Parties: Joe A. CARRANCHO et al., Plaintiffs and Appellants, v. CALIFORNIA AIR RESOURCES BOARD et al., Defendants and Respondents.

4 Cal.Rptr.3d 536 111 Cal.App.4th 1255 Joe A. CARRANCHO et al., Plaintiffs and Appellants,
v.
CALIFORNIA AIR RESOURCES BOARD et al., Defendants and Respondents. No. C040237. Court of Appeal, Third District. August 13, 2003.

[4 Cal.Rptr.3d 541]

[111 Cal.App.4th 1259]

Kronick, Moskovitz, Tiedemann & Girard, Andrew P. Pugno, Daniel J. O'Hanlon, Sacramento, CA, for Plaintiff and Appellant.

Bill Lockyear, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Mary Hackenbracht, Senior Assistant Attorney General, and Nicholas Stern, Deputy Attorney General, Sacramento, CA, for Defendant and Respondent.

RAYE, Acting P.J.

In 1991 the Legislature enacted a statutory scheme to phase down the practice of burning rice straw left over after harvest and to develop alternative uses for the straw. These alternatives failed to materialize as hoped, and growers had to incorporate almost all of the straw back into the soil, a practice that was costly and contributed to the incidence of rice disease. In 1997 the Legislature amended the statute to suspend until 2000 the gradual reduction in the amount of straw burned. As part of the amendment, state agencies responsible for managing the phasedown were required to develop a plan to divert at least 50 percent of the straw to off-field uses by 2000 and to make a progress report in 1999 to the Legislature on, among other things, progress in achieving that goal.

The rice grower plaintiffs filed a petition for writ of mandate (Code Civ. Proc., § 1085), alleging that the diversion plan and progress report failed to comply with the statute. The petition was denied. Plaintiffs contend the trial court erred in failing to exercise its independent judgment in reviewing the plan and report. They also claim the plan and report were woefully deficient.

We disagree. The statute contemplates that the plan and report, in part, will aid the Legislature in amending statutes. The agencies therefore performed the quasi-legislative function of gathering information and making recommendations in aid of prospective legislation, acts that are reviewed under a deferential standard.

Applying the appropriate standard, we find the relevant documents pass muster, reflecting consideration by the agencies of the relevant factors affecting development of off-field uses for rice straw and demonstrating a rational connection between those factors and the purpose of the statute to divert 50 percent of the straw. Because the contents of the documents were not arbitrary, capricious, or without evidentiary support, we shall affirm the denial of the petition for writ of mandate.

111 Cal.App.4th 1260

FACTUAL AND PROCEDURAL BACKGROUND

The Rice Straw Burning Reduction Act

The Connelly-Areias-Chandler Rice Straw Burning Reduction Act of 1991 (Health & Saf.Code, § 41865 et seq.),¹ as originally enacted, provided for an annual reduction in the percentage of acres of rice straw that could be burned in the Sacramento Valley Air Basin, from 90 percent in 1992 to 25 percent in 1999. (§ 41865, former subd. (c), Stats.1991, ch. 787, § 1, p. 3502.) In 2000 and thereafter, all rice straw burning would require a permit issued only where disease had significantly

4 Cal.Rptr.3d 542

decreased crop yield. (§ 41865, subds.(b)(3), (f), (h) & (i).)² Before the act, most rice straw in the Sacramento Valley was burned.

The statute also encouraged the development of "all feasible alternatives to rice straw burning," declaring this to be the intent of the Legislature. (§ 41865, former subd. (n), now subd. (q).) In 1992 the statute was amended to include a further legislative declaration that the restrictions on rice straw burning might create a solid waste disposal problem and the "state should assist local governments and growers in diverting rice straw from landfills by researching and developing diversion options." (§ 41865, former subd. (n), now subd. (p), as added by Stats.1992, ch. 1207, § 1, p. 5699.)

The state agencies responsible for managing the phasedown, defendants California Air Resources Board (ARB) and the California Department of Food and Agriculture (CDFA) (collectively, the agencies), were directed by the statute to form an advisory committee composed of representatives from both public and private sectors to assist in the identification and implementation of alternatives to burning, and to prepare a list of goals for the development of alternative uses for rice straw. (§ 41865, subd. (l).)

The agencies were also required, beginning in 1995, to issue a progress report biennially on the phasedown of rice straw burning, including "an economic and environmental assessment, the status of feasible and cost-effective alternatives to rice straw burning, recommendations from the advisory committee on the development of alternatives to rice straw burning, [and] any recommended changes to this section...." (§ 41865, former subd. (m).)

The initial 1995 progress report (1995 report) defined the problem addressed by the statute. Rice was the most widely grown crop in the Sacramento Valley, with approximately 484,000 acres planted in 1994-1995. After harvesting, typically three tons of rice straw per acre remain, which has

111 Cal.App.4th 1261

to be cleared for future crops. Burning the rice straw traditionally was the chosen method of disposal because it was relatively easy and inexpensive, and burning effectively controlled rice diseases that can reduce future crop yields. However, emissions of smoke and other pollutants, and their effects on air quality, caused many public complaints, leading to the passage of legislation to reduce the amount of straw that may be burned.

The 1995 report found, among other things, that virtually all of the unburned straw had been incorporated into the soil; that this practice had increased the cost of farming; and that reliance on soil incorporation could increase the incidence of rice disease, which growers reported caused a decline in yield. Assessing alternatives to burning, the report stated that in the period from 1992 to 1994, there were no alternatives to burning other than soil incorporation and a small amount of composting and erosion control. No off-farm facilities manufactured products containing straw or converted straw to energy. For 1995 through 2000 and beyond, it appeared that heavy reliance on soil incorporation would be necessary. The phasedown legislation did not appropriate funds to stimulate industry, and most proposals for straw use omitted details on costs and methods to overcome the difficulty of removing straw from the field, storing it, and transporting it to any facility for use.

The 1995 report recommended a statutory change to allow the total annual acreage permitted to be burned to remain the same

4 Cal.Rptr.3d 543

from 1996 through 1999 to allow more time to develop alternatives to burning other than soil incorporation.

In 1997 the statute was amended to repeal the phasedown requirements for 1998 through 2000 and to allow 200,000 acres of rice straw to be burned annually in those years. (§ 41865, subd. (c)(1), as amended by Stats.1997, ch. 745, § 2.) A 1997 legislative committee comment on the bill to amend the statute mentioned the statement of the author that "a rice disease referred to as `rice blast'" had appeared in the state's rice fields the year before. (Sen. Com. on Environmental Quality, com. on Sen. Bill No. 318 (1997-1998 Reg. Sess.) as amended Sept. 8, 1997, p. 2.) The author indicated the bill was intended to provide a "`negotiated solution'" to the need of rice farmers to protect their crops against disease while minimizing the impact on public health. (Ibid.) The committee comment noted the recommendation of the agencies in the 1995 report that the phasedown be paused, as well as comments critical of the report, e.g., that there was no evidence of an increased prevalence of rice disease and that the report paid insufficient attention to the health hazards of burning. (Id. at p. 4.)

111 Cal.App.4th 1262

The 1997 amendments to section 41865 revised both the diversion planning and progress report requirements. As amended, section 41865, subdivision (m) (subdivision (m)) directs ARB to produce an implementation plan for diversion of rice straw to alternative uses other than soil incorporation (diversion plan).

Subdivision (m) states: "On or before September 1, 1998, the state board, in consultation with the department, the advisory committee, and the Trade and Commerce Agency, shall develop an implementation plan and a schedule to achieve diversion of not less than 50 percent of rice straw produced toward off-field uses by 2000. Off-field uses may include, but are not limited to, the production of energy and fuels, construction materials, pulp and paper, and livestock feed."

The progress report requirements similarly were revised to incorporate the status of the diversion plan and its target of 50 percent diversion as set forth in section 41865, subdivision (n) (subdivision (n)). Subdivision (n) states: "On or before September 1, 1999, the state board and the department shall jointly report to the Legislature on the progress of the phasedown of, and the identification and implementation of alternatives to, rice straw burning. This report shall include an economic and environmental assessment, the status of feasible and cost-effective alternatives to rice straw burning, recommendations from the advisory committee on the development of alternatives to rice straw burning, the status of the implementation plan and the schedule required by subdivision (m), progress toward achieving the 50 percent diversion goal, any recommended changes to this section, and other issues related to this section. The report shall be updated biennially and transmitted to the Legislature not later than September 1 of each odd-numbered year. The state board may adjust the district burn permit fees specified in subdivision (s) to pay for the...