Citizens for East Shore Parks v. California State Lands Comm'n, No. A129896.

CourtCalifornia Court of Appeals
Writing for the CourtBANKE
Citation202 Cal.App.4th 549,136 Cal.Rptr.3d 162,12 Cal. Daily Op. Serv. 156,2012 Daily Journal D.A.R. 28
PartiesCITIZENS FOR EAST SHORE PARKS, et al., Plaintiffs and Appellants, v. CALIFORNIA STATE LANDS COMMISSION, Defendant and Respondent;Chevron U.S.A., et al., Real Parties in Interest and Respondents.
Docket NumberNo. A129896.
Decision Date27 January 2012

12 Cal. Daily Op. Serv. 156
136 Cal.Rptr.3d 162
2012 Daily Journal D.A.R. 28
202 Cal.App.4th 549

CITIZENS FOR EAST SHORE PARKS, et al., Plaintiffs and Appellants,
CALIFORNIA STATE LANDS COMMISSION, Defendant and Respondent;Chevron U.S.A., et al., Real Parties in Interest and Respondents.

No. A129896.

Court of Appeal, First District, Division 1, California.

Dec. 30, 2011.As Modified on Denial of Rehearing Jan. 27, 2012.

[136 Cal.Rptr.3d 167]

Law Offices of Stephan C. Volker, Oakland, Stephan C. Volker, Stephanie L. Abrahams, Daniel Garrett–Steinman, Jamey M.B. Volker and Joshua A.H. Harris for Plaintiffs and Appellants.

Kamala D. Harris, Attorney General, John A. Saurenman, Senior Assistant Attorney General, Christiana Tiedemann, Supervising Deputy Attorney General and Joel S. Jacobs, Deputy Attorney General for Defendant and Respondent.

Pillsbury Winthrop Shaw Pittman, San Francisco, Ronald E. Van Buskirk, Kevin M. Fong and Todd W. Smith for Real Parties in Interest and Respondents.BANKE, J.

[202 Cal.App.4th 553] Defendant and respondent California State Lands Commission (Lands Commission)

[136 Cal.Rptr.3d 168]

approved a 30–year lease allowing real party in interest and respondent Chevron U.S.A. Inc. (Chevron) to continue operating a marine terminal in San Francisco Bay waters, near the company's refinery in Richmond, California. Plaintiffs and Appellants Citizens for East Shore Parks and Daniel P. Doellstedt contend that in approving the lease, the Lands Commission failed to comply with the California Environmental Quality Act (CEQA) and also violated [202 Cal.App.4th 554] the public trust doctrine. The trial court denied their petition for writ of mandate and complaint for declaratory relief. We affirm.

I. Background

The Long Wharf marine terminal and nearby Richmond refinery have been in existence since 1902. Standard Oil, Chevron's predecessor, bought the refinery and began operating it and the terminal in 1905.

The marine terminal is a T-shaped, concrete docking structure approximately 3,440 feet long. Ships can dock at four deep-water outer berths and several inner berths. Ships off-load crude oil at the terminal for processing at the refinery and take on refined products which they transport to national and international markets. The marine terminal has been modified over the years. In 1946, the original wooden structure gave way to the present concrete one. Alterations in 1974 allowed for larger vessels. Since then, Chevron has added new platforms, breasting dolphins, and a vapor control system. In 2000 and 2004, the company completed a major seismic upgrade and electrical system revamp.

While Chevron's refinery sits on private land beyond tidal reach, the marine terminal sits in the San Francisco Bay on submerged land owned by the state and subject to a public trust servitude and the control of the Lands Commission. The refinery and terminal are linked by a pipeline system that transfers oil and petroleum products between the two facilities. Leaving the terminal, the pipelines first cross a 4,200–foot causeway that largely stands atop submerged state land. The final 750 feet of the causeway, however, cross private land, which is submerged or partially submerged and therefore is also subject to a public trust servitude.1 Beyond the causeway, the pipelines cross the “upland” area, land which is above tidal reach and not subject to such servitude.

In August 1947, the Lands Commission granted Standard Oil a 50–year lease for the marine terminal. Chevron assumed the lease in 1976, and the lease expired in 1997. Since then, Chevron has operated the terminal on a holdover basis, until the Lands Commission approved the 30–year renewal on January 29, 2009. 2

Before the Lands Commission approved the lease renewal, it considered what actions it needed to take to comply with CEQA. The 1902 terminal predates CEQA by nearly 70 years. Thus, no CEQA study examined its construction or ensuing operation. The Lands Commission concluded future [202 Cal.App.4th 555] oil spills constituted a potentially significant environmental impact, requiring analysis in an environmental impact report (EIR).3 The Commission accordingly commissioned

[136 Cal.Rptr.3d 169]

a draft EIR, solicited and responded to public comments, and issued a final EIR. Although the reports focus on the impact of potential oil spills, they also discuss other impacts, such as those to water quality and recreation. The EIR process took nearly nine years from the Commission's notice it would prepare such a report, dated November 1998, to completion of the final EIR, dated March 2007.

In 1999, at the beginning of the review process, the Lands Commission determined the EIR should assess environmental impacts of the lease renewal against a baseline that assumed no terminal operations but the terminal structure remaining physically intact. Over the years, the Lands Commission changed its view as to the appropriate baseline. Accordingly, the draft and final EIRs defined the lease renewal project as allowing Chevron to “continue its existing Long Wharf operations” and used the existing, actual condition of the marine terminal, which included off-loading and on-loading operations, as the baseline by which to assess potential environmental impacts. Using this baseline, the EIRs concluded the lease renewal could result in significant environmental impacts due to potential oil spills.

The Lands Commission held public hearings on December 3, 2008, and January 29, 2009, at which it discussed and ultimately approved the final EIR. Plaintiffs appeared at the hearings and challenged the sufficiency of the EIR, claiming it omitted consideration of other significant impacts of the terminal's operation, especially in conjunction with the refinery, causeway, and pipelines. In approving the final EIR on January 29, 2009, the Lands Commission adopted a statement of overriding consideration that the lease should be renewed despite the fact oil spill risks could not be wholly mitigated.

During the review process there was also discussion about how lease renewal would affect recreational activities on not only the submerged and tidal lands over which the terminal and the causeway sit, but also on the “upland” area where plaintiffs want a portion of the Bay Trail (a hiking and biking trail that will encircle San Francisco Bay) constructed. Chevron met with proponents of the trail and officials of the City of Richmond and entered into a Community Benefits Agreement with the city. This agreement, [202 Cal.App.4th 556] dated July 31, 2008, obligated Chevron to pay money and provide other consideration to the city if it issues permits for certain projects at the refinery. Chevron's commitment included specific resources for the Bay Trail, including an easement through its “upland” property and $2 million for any security measures necessary to keep trail users out of sensitive refinery areas.

Although prepared to vote on the lease renewal at the December 3, 2008, hearing, the Lands Commission postponed the vote until January 29, 2009, to provide Chevron and interested government agencies a further opportunity to discuss additional resources for the Bay Trail and make progress on several other issues of public concern. By the January 29 meeting, Chevron agreed to provide a second mile-long easement on its “upland” property for the trail, and also agreed to a plan to reduce nighttime glare from terminal lighting and to report on ship air emissions,

[136 Cal.Rptr.3d 170]

which may be subject to future regulation.4 Plaintiffs wanted Chevron to provide an additional $5 million to actually build the trail. The Lands Commission declined to impose such a condition or to delay the review process further, and approved the final EIR and the lease renewal.

On March 5, 2009, plaintiffs filed a combined petition for writ of mandate (under Code of Civil Procedure sections 1085 and 1094.5 and Public Resources Code sections 21168 and 21168.5) and complaint for declaratory relief. They filed an amended petition and complaint on March 27, alleging two causes of action against the Lands Commission: one for violation of CEQA and one for violation of the public trust doctrine. Plaintiffs sought a writ directing the Lands Commission to decertify the EIR and vacate its approval of the lease renewal, and a declaration the Commission had violated CEQA and the public trust doctrine. The trial court denied the plaintiffs' writ petition and dismissed their complaint for associated declaratory relief on July 19, 2010, and entered judgment in favor of the Lands Commission on September 8, 2010.

II. Discussion
A. CEQA1. Standard of Review

On appeal from a writ of administrative mandate in a CEQA case, this court, just as the trial court, reviews the administrative record for “a prejudicial abuse of discretion.” (Pub. Resources Code, § 21168.5 5; Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351, 1371, 119 Cal.Rptr.3d 481.) “Abuse of discretion is [202 Cal.App.4th 557] established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” ( § 21168.5; Sunnyvale, supra, 190 Cal.App.4th at p. 1371, 119 Cal.Rptr.3d 481.) “Judicial review of these two types of error differs significantly....” ( Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435, 53 Cal.Rptr.3d 821, 150 P.3d 709 ( Vineyard ).) While we determine de novo whether the agency employed the correct procedures or properly interpreted CEQA's requirements, “we accord greater deference to the agency's substantive factual conclusions.” ( Ibid.; Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1277, 119 Cal.Rptr.2d 402 ( Fat ).) “In reviewing for substantial evidence, the reviewing court ‘may not set aside an agency's approval of an EIR on the ground that an opposite conclusion...

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