Opinion
C090840
04-20-2022
WE ADVOCATE THROUGH ENVIRONMENTAL REVIEW et al., Plaintiffs and Appellants, v. COUNTY OF SISKIYOU et al., Defendants and Respondents; Crystal Geyser Water Company, Real Party in Interest and Respondent.
Donald B. Mooney, Marsha A. Burch, Law Offices of Donald B. Mooney, 417 Mace Boulevard, Suite J-334, Davis, CA 95618, for Plaintiff and Appellant. Natalie Erin Reed, Office of the County Counsel, P.O. Box 659, Yreka, CA 96097, William W. Abbott, Abbott & Kindermann, Inc., 2100 21st Street, Sacramento, CA 95818, for Defendant and Respondent. Barbara Anne Brenner, Jerry Scott Miller, White Brenner LLP, 1414 K Street, 3rd Floor, Sacramento, CA 95814, for Real Party in Interest and Respondent
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Parts II, IV. A., B., D. E., and V of the Discussion.
Donald B. Mooney, Marsha A. Burch, Law Offices of Donald B. Mooney, 417 Mace Boulevard, Suite J-334, Davis, CA 95618, for Plaintiff and Appellant.
Natalie Erin Reed, Office of the County Counsel, P.O. Box 659, Yreka, CA 96097, William W. Abbott, Abbott & Kindermann, Inc., 2100 21st Street, Sacramento, CA 95818, for Defendant and Respondent.
Barbara Anne Brenner, Jerry Scott Miller, White Brenner LLP, 1414 K Street, 3rd Floor, Sacramento, CA 95814, for Real Party in Interest and Respondent
BLEASE, Acting P. J. From 2001 to 2010, a water bottling company operated a plant in Siskiyou County (the County) that extracted groundwater and then used it to produce bottled water. A few years after the plant closed, Crystal Geyser Water Company (Crystal Geyser) bought the facility and sought to revive it. To that end, Crystal Geyser requested, among other things, a permit from the County to build a caretaker's residence for the bottling plant and a permit from the City of Mount Shasta (the City) to allow the plant to discharge wastewater into the City's sewer system. Both the County and the City ultimately granted Crystal Geyser the permits it sought.
This appeal concerns one of two lawsuits challenging these approvals, both of which are now on appeal and both of which concern the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq. ). In one suit, Appellants We Advocate Thorough Environmental Review and Winnehem Wintu Tribe alleged that the County's environmental review for the bottling facility was inadequate under CEQA. In another, they alleged that the City's decision to issue the wastewater permit for the bottling plant, which relied on the County's environmental review for the facility, was also improper under CEQA.
We focus here on Appellants' challenge to the County's environmental review for the bottling facility. CEQA generally requires public agencies, like the County and the City, to consider the environmental consequences of discretionary projects they propose to approve. When multiple agencies propose to approve aspects of the same project, as here, one serves as the "lead agency" that conducts environmental review for the whole of the project. In this case, the County served as the lead agency and considered the potential environmental impacts of permitting the bottling facility before it or any other public agency issued a permit for the facility. But in Appellants' view, the County's analysis was inadequate. Appellants allege that the County (1) provided a misleading description of the project, (2) defined the project's objectives in an impermissibly narrow manner, (3) improperly evaluated the project's impacts to aesthetics, air quality, climate change, noise, and hydrology, and (4) approved the project even though it would result in violations of the County's and the City's general plans. The trial court rejected all Appellants' arguments. But we find two of Appellants' contentions have merit. First, we agree that the County defined the project's objectives in an overly narrow manner. Second, we also agree that the County's process for evaluating the project's impacts to climate change was flawed. Relevant to this point, the County initially informed the public that the bottling project would result in greenhouse gas emissions of one amount, but, after the period for public comments had ended, the County disclosed that the project would actually result in emissions nearly double what it initially estimated. Under the circumstances of this case, we find that the County should have allowed the public further opportunity to comment on the project after this late disclosure. For these reasons, we reverse.
BACKGROUND
In the 1990s, Dannon Waters of North America, which later became Coca-Cola Dannon (Dannon), acquired a property in the County with the intent of constructing a bottling facility. It afterward, following County approval, constructed a bottling facility, a groundwater production well (known as DEX-6), and a domestic groundwater well (known as the domestic well). Dannon operated the plant from January 2001 until some point in 2010.
Crystal Geyser acquired the property in 2013. A few years later, after Crystal Geyser proposed returning the plant to production, the County initiated environmental review of the proposed project under CEQA. In 2017, the County released a draft document, called a draft Environmental Impact Report or draft EIR, describing the proposed project and analyzing the project's potential impacts. In the draft EIR, the County explained that, in general, "[t]he Proposed Project entails renovations to a former bottling plant in unincorporated Siskiyou County ... adjacent to the City of Mt. Shasta (City) for the production of sparkling water, flavored water, juice beverages, and teas." It added that, to facilitate the project, Crystal Geyser would need to obtain permits from several public agencies, including, among other permits, a permit from the County for construction of a caretaker's residence for the plant, a permit from the City for wastewater discharge from the plant, and several permits from the local air quality district for the plant's generators and boilers. The County evaluated in its draft EIR the potential environmental impacts associated with all these governmental approvals. After the County circulated the draft EIR, various parties commented on the project, including Appellants. The County afterward issued a final EIR for the project with responses to these comments. A few months later, in December 2017, the County's board of supervisors certified the EIR. As part of the approval, the board acknowledged that the project would have some unavoidable significant environmental impacts but found these impacts would be outweighed by the project's benefits. (See Cal. Code. Regs., tit. 14, § 15092, subd. (b)(2)(B). )
California Code of Regulations, title 14, sections 15000 -15387 are ordinarily referred to as the CEQA Guidelines. We will use that shorthand to refer to these regulations going forward.
A month after the County approved the project, Appellants filed a petition for writ of mandate and complaint, alleging that the County and its board violated CEQA and also violated the County's and the City's general plans. Appellants reasoned, as relevant here, that the County provided an inaccurate description of the project, defined the project's objectives in an impermissibly narrow manner, improperly evaluated several of the project's impacts, and approved the project even though it would be inconsistent with the County's and the City's general plans.
Following a hearing, the trial court rejected all Appellants' claims. The court afterward entered a judgment denying Appellants' petition for writ of mandate and complaint.
A few months after filing this action, Appellants also filed a related action challenging the City's issuance of a wastewater permit for the bottling facility. In that case too, the trial court rejected all Appellants' claims. Appellants afterward timely appealed the court's decision, which we considered in the separate case of We Advocate Thorough Environmental Review, et al. v. City of Mount Shasta, et al. (Case No. C091012) 78 Cal.App.5th 629, 293 Cal.Rptr.3d 518.
DISCUSSION
I. CEQA Background
CEQA serves "to ensure that public agencies will consider the environmental consequences of discretionary projects they propose to carry out or approve." ( Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 488, 106 Cal.Rptr.3d 858, 227 P.3d 416.) To that end, absent an exemption, an agency proposing to carry out or approve a project generally must conduct an initial study to determine "if the project may have a significant effect on the environment." (CEQA Guidelines, § 15063, subd. (a).) In the event multiple agencies propose to approve aspects of the same project, one serves as the "lead agency" that conducts the initial study. (See Pub. Resources Code, § 21067 [defining "lead agency"]; see also CEQA Guidelines, §§ 15050, subd. (a), 15063, subd. (a) [noting that "the lead agency" conducts the initial study].)
Depending on the initial study's findings, the lead agency must then prepare either an EIR, a mitigated negative declaration, or a negative declaration. If "there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment," the agency need only prepare a negative declaration that "briefly describ[es] the reasons that [the] proposed project ... will not have a significant effect on the environment." (CEQA Guidelines, §§ 15063, subd. (b)(2), 15371.) If substantial evidence shows the project may in fact have a significant environmental effect, but the project applicant agrees to changes that would avoid or mitigate them, then the agency may instead prepare a mitigated negative declaration. (CEQA Guidelines, § 15070, subd. (b).) And if substantial evidence shows the project may have a significant environmental effect and a mitigated negative declaration is inappropriate, as is true in this case, then the agency must prepare an EIR providing detailed information about the project's potential environmental impacts. ( Pub. Resources Code, §§ 21100 [state agency requirements], 21151 [local agency requirements], 21061 [defining an EIR].)
An EIR, as courts have often said, is " ‘ "the heart of CEQA." ’ " ( Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 511, 220 Cal.Rptr.3d 294, 397 P.3d 989 ( Cleveland Nat. Forest Foundation ).) It serves to "(1) inform the government and public about a proposed activity's potential environmental impacts; (2) identify ways to reduce, or avoid, those impacts; (3) require project changes through alternatives or mitigation measures when feasible; and (4) disclose the government's rationale for approving a project." ( Protecting Our Water & Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 488, 268 Cal.Rptr.3d 148, 472 P.3d 459.) To fulfill these purposes, an "EIR ‘must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ " ( Cleveland Nat. Foundation, supra , 3 Cal.5th at p. 511, 220 Cal.Rptr.3d 294, 397 P.3d 989.) But that does not mean an EIR must be exhaustive on all topics. Courts look " ‘not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.’ [Citation.]" ( In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1175, 77 Cal.Rptr.3d 578, 184 P.3d 709 ( In re Bay-Delta ).)
In reviewing an agency's compliance with CEQA, courts review for abuse of discretion. ( Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) Courts will find an agency abused its discretion if it either failed to proceed in a manner required by law or reached a decision not supported by substantial evidence. ( Ibid. ) " ‘Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, "scrupulously enforc[ing] all legislatively mandated CEQA requirements" [citation], we accord greater deference to the agency's substantive factual conclusions. 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 would have been equally or more reasonable," for, on factual questions, our task "is not to weigh conflicting evidence and determine who has the better argument." [Citation.]’ [Citation.]" ( Ibid. )
With those principles in mind, we turn to Appellants' arguments on appeal.
See footnote *, ante .
III. Project Objectives
We turn next to Appellants' contention that the EIR's project objectives were impermissibly narrow.
An EIR's project description, as noted above, must contain a statement of the project objectives. A lead agency must then use this statement to help it, among other things, develop a reasonable range of alternatives to the proposed project to evaluate in the EIR. (CEQA Guidelines, § 15124.) As our Supreme Court has explained, "[t]he process of selecting the alternatives to be included in the EIR begins with the establishment of project objectives by the lead agency. ‘A clearly written statement of objectives will help the lead agency develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings....’ [Citation.]" ( In re Bay-Delta, supra, 43 Cal.4th at p. 1163, 77 Cal.Rptr.3d 578, 184 P.3d 709 ; see also CEQA Guidelines, § 15126.6 ["An EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives."].)
Here, the EIR stated that Crystal Geyser had eight objectives for the proposed project: (1) to "operate a beverage bottling facility and ancillary uses to meet increasing market demand," (2) to "site the proposed facility at the Plant previously operated by [Dannon], to take advantage of the existing building, production well, and availability and high quality of existing spring water on the property," (3) to "utilize the full production capacity of the existing Plant building based on its current size," (4) to "initiate operation of the Plant as soon as possible to meet increasing market demand," (5) to "minimize environmental impacts ... by utilizing existing facilities and infrastructure to the extent possible," (6) to "modify the existing facilities at the Plant in a manner that incorporates sustainable building and design practices, recycling efforts, and other conservation methods, in order to reduce water use," (7) to "withdraw groundwater in a sustainable manner that does not result in negative effects on nearby springs or wells, the underlying shallow or deep aquifers, or the surrounding environment," and (8) to "create new employment opportunities for the local and nearby communities, promote sustainable economic development, provide for adequate services and infrastructure to support the project, and contribute to the County's tax base." The EIR elsewhere defined the term "Plant" to mean the "former bottling plant in unincorporated Siskiyou County."
Appellants assert, and we agree, that these objectives were "so narrow[ ] as to preclude any alternative other than the Project." The County largely defined the project objectives as operating the project as proposed. The project as proposed, again, "consists of the operation of a bottling facility and ancillary uses within an approximately 118-acre site formerly developed and operated as a bottling plant" in the County. And the stated project objectives, mirroring the proposed project itself, consists largely of the use of "the full production capacity of the existing Plant" and the "operation of the Plant as soon as possible." But if the principal project objective is simply pursuing the proposed project, then no alternative other than the proposed project would do. All competing reasonable alternatives would simply be defined out of consideration.
In taking this artificially narrow approach for describing the project objectives, the County ensured that the results of its alternatives analysis would be a foregone conclusion. It also, as a result, transformed the EIR's alternatives section—often described as part of the "core of the EIR" ( In re Bay-Delta, supra , 43 Cal.4th at p. 1162, 77 Cal.Rptr.3d 578, 184 P.3d 709 )—into an empty formality. No alternative apart from the rehabilitation of the existing plant, after all, could "site the proposed facility at the Plant," involve the use of "the full production capacity of the existing Plant," allow the "operation of the Plant as soon as possible," or involve the "modif[ication] [of] the existing facilities at the Plant." We find that the County produced a flawed EIR as a result. (See id. at p. 1166, 77 Cal.Rptr.3d 578, 184 P.3d 709 ["a lead agency may not give a project's purpose an artificially narrow definition"]; see also Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 565, 276 Cal.Rptr. 410, 801 P.2d 1161 [" ‘One of [an EIR's] major functions ... is to ensure that all reasonable alternatives to proposed projects are thoroughly assessed by the responsible official.’ "].)
We also find that the County's error was prejudicial. Because the County effectively described the principal project objective as operating the project as proposed, and "as soon as possible," it dismissively rejected anything other than the proposed project. In doing so, it prejudicially prevented informed decision making and public participation. ( North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 668, 671, 196 Cal.Rptr.3d 559 [EIR that had a stated objective of eradicating a certain type of moth, when the underlying objective was really to protect California's native plants and agricultural crops from damage, was unreasonably narrow; it was also prejudicial because it resulted in "the EIR dismissively rejected anything that would not achieve eradication"]; see also Pub. Resources Code, § 21005, subd. (a) ["The Legislature finds and declares that it is the policy of the state that noncompliance with the information disclosure provisions of this division which precludes relevant information from being presented to the public agency, or noncompliance with substantive requirements of this division, may constitute a prejudicial abuse of discretion."].)
Apart from arguing that the County defined the project's objectives in an impermissible narrow fashion, Appellants also assert that the EIR failed to demonstrate that one of the project alternatives, the no-project alternative, was infeasible. The County rejected the no-project alternative because, in its view, "[t]his alternative would not accomplish any of the basic project objectives." The County then offered three specific reasons for this conclusion, though two were largely redundant. Its three reasons were: (1) "The existing facilities within the project site would remain vacant and non-operational," (2) the "existing facilities and infrastructure" would not be used "to the extent possible," and (3) no new employment opportunities would be created in the County.
Challenging these findings, Appellants first assert that at least the first two of the County's stated reasons "lack support in the record." Appellants, in this respect, appear to challenge the County's conclusion that the existing bottling facility would remain vacant absent the proposed project. We reject their challenge. Following Dannon's closure of the plant, the facility remained vacant for several years until Crystal Geyser purchased the plant for purposes of reviving it. These facts certainly tend to show that, were Crystal Geyser to abandon the plant, it could reasonably be expected to remain vacant again for a period of time. (See CEQA Guidelines, § 15384, subd. (b) ["Substantial evidence shall include," among other things, "reasonable assumptions predicated upon facts."].)
Appellants also suggest that the County's stated reasons for rejecting the no-project alternative were not clearly tied to the stated project objectives. We find differently. That the no-project alternative would not create new employment opportunities in the County plainly related to the project objective of "creat[ing] new employment opportunities for the local and nearby communities." And that the no-project alternative would leave the existing bottling facility vacant plainly related to the project objective of "utiliz[ing] the full production capacity of the existing Plant building based on its current size."
Lastly, Appellants contend that all the County's stated reasons fail to "demonstrate[ ] that the no project alternative is infeasible," reasoning, it appears, that the County's stated reasons are flawed because they are premised on the EIR's unreasonably narrow project objectives. We agree, as mentioned, that the offered project objectives were unreasonably narrow. We also agree that this affected the County's analysis of the no-project alternative and that the County, for this reason, will need to redo its analysis.
IV. Impacts Analysis
We consider next Appellants' challenge to the EIR's discussion of environmental impacts. Appellants allege that the EIR fell short in its analysis of the project's impacts on aesthetics, air quality, climate change, noise, and hydrology. We address each issue in turn.
See footnote *, ante .
C. Climate Change
Appellants next, for a variety of reasons, challenge the EIR's discussion and mitigation of climate change impacts.
Their first claim concerns CEQA's recirculation requirements. CEQA requires a lead agency to recirculate an EIR for public review when "significant new information" is added to the EIR after the draft EIR has been released to the public for review and before certification. ( Pub. Resources Code, § 21092.1.) An EIR includes "significant new information" if, among other things, it (1) reveals "[a] new significant environmental impact [that] would result from the project," (2) reveals "[a] substantial increase in the severity of an environmental impact [that] would result unless mitigation measures are adopted that reduce the impact to a level of insignificance," or (3) shows that "[t]he draft EIR was so fundamentally and basically inadequate and conclusory in nature that meaningful public review and comment were precluded." (CEQA Guidelines, § 15088.5, subd. (a).)
In this case, the County initially estimated in its draft EIR that the project would result in greenhouse gas emissions of 35,486 metric tons of carbon dioxide equivalent (MTCO2 e) per year. Because this amount would exceed the County's established threshold of significance of 10,000 MTCO2 e per year, the County concluded that the proposed project's emissions would result in a significant impact. In its final EIR, the County continued to conclude that the proposed project's emissions would result in a significant impact. But it estimated a far higher level of emissions: 61,281 MTCO2 e per year. The County, however, found that this was not significant new information that required recirculation. It reasoned that because the draft EIR already found that project emissions would be significant and unavoidable even with mitigation, the final EIR's upward revision in greenhouse gas emissions did not change the EIR's ultimate conclusions.
Appellants contend, and we agree, that the County could not decline to recirculate the EIR under these circumstances. A lead agency could not say that greenhouse gas emissions in excess of 10,000 MTCO2 e per year are significant, but then, at the same time, conclude that greenhouse gas emissions over 25,000 MTCO2 e per year are insignificant. Yet that is what the County did here. It said that greenhouse gas emissions in excess of 10,000 MTCO2 e per year would result in a significant impact. But it then concluded that an increase in estimated greenhouse gas emissions of 25,795 MTCO2 e per year (the difference between 61,281 and 35,486) was an insignificant detail. Considering the County's own standard for determining significance, however, we hold that this finding is not supported by substantial evidence. (See Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 448, 53 Cal.Rptr.3d 821, 150 P.3d 709 [county's decision not to recirculate was not supported by substantial evidence]; see also Cleveland Nat. Forest Foundation, supra , 3 Cal.5th at p. 514, 220 Cal.Rptr.3d 294, 397 P.3d 989 ["an EIR's designation of a particular adverse environmental effect as ‘significant’ does not excuse the EIR's failure to reasonably describe the nature and magnitude of the adverse effect."].) The County, its board of supervisors, and Crystal Geyser (collectively, Respondents) counter that the County's approach was appropriate because the EIR's ultimate conclusions were left unchanged—greenhouse gas emissions would remain significant and unavoidable. But that is hardly any justification at all on the facts before us. On that logic, a lead agency could conclude in a draft EIR that a project would result in the loss of one endangered animal, and that this loss would be significant and unavoidable; but it could then, in the final EIR, conclude that it is insignificant that the project would actually result in the extinction of the entire species. No matter, Respondents suggest, that the loss is magnitudes greater than disclosed in the draft EIR; it is enough that the loss remains significant and unavoidable in both the draft EIR and the final EIR. That type of approach, however, wrongly deprives the public of a meaningful opportunity to comment on a project's substantial environmental impacts. ( Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1120, 26 Cal.Rptr.2d 231, 864 P.2d 502 [recirculation is "required when the information added to the EIR changes the EIR in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project"].) It also fails to acknowledge the internal inconsistency in the lead agency finding that the loss of a single endangered animal is significant in its draft EIR, but then finding that the loss of many more endangered animals is insignificant in its final EIR. The County's decision making here suffers from these same types of fatal defects.
At oral argument, Respondents appeared to accept that the increase in the emissions estimate was not an "insignificant detail." But because the EIR's ultimate conclusions were left unchanged—emissions would remain significant and unavoidable—they maintained that recirculation was still unnecessary. For the reasons covered, however, we find this argument unpersuasive.
Second, Appellants contend that the County potentially understated the amount of greenhouse gas emissions resulting from the project. Their argument concerns the County's decision not to account for the greenhouse gas emissions associated with the production of unblown bottles (called performs), which Crystal Geyser will purchase and then use for making finished bottles.
According to the County, it had no need to account for these emissions because the production of preforms would be an indirect and uncertain consequence of the project. (See Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 175, 127 Cal.Rptr.3d 710, 254 P.3d 1005 [a lead agency need not consider "an indirect and uncertain consequence" of a project]; but see CEQA Guidelines, § 15064, subd. (d) [a lead agency must consider "reasonably foreseeable indirect physical changes in the environment which may be caused by the project"].) Its reasoning was twofold. First, it stated, the demand for (and thus production of) preforms would remain the same with or without the project because, without the project, competing beverage suppliers would increase their own demand for preforms to "provide the necessary supply to meet the market demand for beverage products." Second, it added, although the production of preforms could change with the project if the project stimulated demand by producing enough bottled drinks to cause a significant drop in prices, that would not happen here. It reasoned that Crystal Geyser could not possibly supply enough bottled drinks, relative to the total supply of bottled drinks, to significantly impact market prices.
Challenging the County's decision, Appellants argue that the County could reasonably calculate the emissions associated with these preforms because it had estimates of "the number of bottles [Crystal Geyser] will use each year" and estimates about "the amount of CO2 that is generated by the production of preforms." They then assert that "the County may not avoid the analysis of the known cumulative, global impacts associated with the identifiable number of preforms the Project will consume each year." But in the course of making their argument, Appellants never discuss or even acknowledge the County's actual reasoning for declining to consider these emissions—which was not that it lacked information about the number of preforms that the project would use or the emissions associated with preform production, but that it was uncertain whether the production of preforms with the project would be greater than without the project. Again, the County reasoned that Crystal Geyser's competitors would have an incentive to produce more bottled drinks, and thus would likely purchase more preforms, if Crystal Geyser did not proceed with the project. Apart from ignoring the County's actual reasoning, Appellants also fail to point to any evidence supporting a necessary premise of their position. As part of their argument, they implicitly assume that each preform that Crystal Geyser purchases for the project would necessarily be a preform that would not otherwise have been produced. But because they cite nothing in the record to support this assumption, Appellants appear to rely on nothing more than speculation. For these reasons, we reject Appellants' largely unsupported and little explained claim.
Third, Appellants claim that the County wrongly assumed, without supportive evidence, that the project's heating, ventilation, and air conditioning (HVAC) system would run "two hours a day, 160 days annually." Appellants suggest that the HVAC system would likely be used more than the County estimated and then argue that the County must evaluate the greenhouse gas emissions from this additional use. But although true that the County initially assumed that the HVAC system would run only two hours a day for a period of six months, it ultimately assumed that the project's HVAC system would run "18 hours each day for a period [of] 6 months." It also explained that use of the HVAC system should be relatively limited because "the plant will include significant insulation" and be "Leadership in Energy and Environmental Design (LEED) certified." Considering these revisions, which Appellants declined to disclose, we reject their challenge to a stale set of facts.
Fourth, for several reasons, Appellants challenge the EIR's mitigation measures for the project's greenhouse gas emissions. First, they argue that the County should have reevaluated its mitigation measures when the final EIR revealed a significant increase in estimated emissions. The record, however, shows that the County both reevaluated and revised its mitigation measures in the final EIR. In any event, we find that Appellants' claim is premature at this point. Because we find the County will need to allow further public review of the EIR's discussion of greenhouse gas emissions, the County may very well be required to further reevaluate its mitigation measures in response to public comments.
Appellants also argue that the EIR's mitigation measures are not enforceable, focusing on two requirements in particular. First, they claim that part of mitigation measure 4.6-1 requires only the "possibility" of installing solar arrays, which is not meaningful mitigation. But nothing in that measure discusses solar arrays. Nor does it even use the word "possibility"—at least not on the pages Appellants cite. Second, Appellants claim that another part of this same measure requires only "a plan to establish carpooling for employees," which they argue is insufficient. But again, Appellants misrepresent the record. The mitigation measure states that Crystal Geyser "shall establish and administer a carpool or rideshare program" and "shall monitor the success of the of the program for one year and submit an annual report to the County." It adds that "this measure could reduce CO2 e emissions by 16.5 MT of CO2 annually" with 25 percent employee participation, but states that "[i]f the rideshare or carpool program does not achieve its intended goal, then [Crystal Geyser] shall subsequently purchase the corresponding number of credits from a carbon registry." The measure, then, requires a program anticipated to achieve a quantifiable reduction in greenhouse gas emissions, along with a backstop in case the program proves ineffective. It does not merely require the preparation of "a plan," as Appellants claim.
Appellants further, on the topic of enforcement, assert that "the County has no authority to enforce these mitigation measures outside of the context of [Crystal Geyser's] use of the caretaker's residence." But rather than explain this argument, Appellants direct us to look to an unspecified part of their argument "above." Reviewing Appellants' arguments "above," we understand their point to be this: Although the EIR's mitigation measures "are enforceable ‘as a condition of exercise of the permit’ " for the caretaker's residence, because Crystal Geyser "has no real need for the caretaker's residence, and the structure[ ] is not habitable as a residence, ... ‘exercising’ that permit is irrelevant." Appellants, in other words, appear to believe that the County will only be able enforce the EIR's mitigation measures if Crystal Geyser decides to exercise its permit for the caretaker's residence—and that will never happen because Crystal Geyser "has no real need for the caretaker's residence, and the structure[ ] is not habitable as a residence."
But apart from neglecting to provide any legal authority for this conclusion, Appellants also decline to offer any evidentiary support for their claim, stating instead that the support for their claim is "noted" elsewhere in their brief. But in the end, all we can find is Appellants' statement that children are not allowed to inhabit the caretaker's residence. And although that is true—one of the mitigation measures states that only employees over the age of 18 may occupy the caretaker's residence—it does not show, as Appellants claim, that Crystal Geyser "has no real need for the caretaker's residence, and the structure[ ] is not habitable as a residence."
Lastly, Appellants suggest that the County should have considered and adopted "other feasible measures" after it declined to require solar arrays. But the County did consider and adopt other feasible mitigation measures, including a measure requiring a carpool program, as discussed, and another measure requiring the purchase of carbon offset credits. We thus reject this claim too.
See footnote *, ante .
V. Consistency with the County and City General Plans
See footnote *, ante .
DISPOSITION
The judgment is reversed. The trial court is instructed to enter, consistent with this opinion, a new judgment granting the petition for writ of mandate and specifying those actions the County must take to comply with CEQA. Those actions include the need to (1) revise the statement of the project objectives, (2) revise the alternatives analysis in light of this new statement, and (3) recirculate the EIR's discussion of greenhouse gas emissions to allow comment on the new emission estimates. Appellants are entitled to recover their costs on appeal. ( Cal. Rules of Court, rule 8.278(a).)
We concur:
ROBIE, J.
HULL, J.