CBE’s litigation has shaped the law in California, opening doors for communities to make their own voices heard. Our reported cases include:
In 2008, the City of Richmond agreed to allow Chevron to significantly expand its refinery, and the company began construction on a project that would have enabled Chevron to process low-quality crude oil. The project would have meant increased emissions and dirtier air for those living nearby.
The City also allowed Chevron to ship hydrogen to other Bay Area oil refineries, creating potential for more frequent toxic releases of mercury and selenium, more sulfur flare gas and greenhouse gas emissions. It also would have put refinery workers at higher risk for workplace accidents.
CBE and environmental justice allies filed suit to require full and proper environmental review and mitigation of the project’s impacts.
A trial court injunction not only forced Chevron to stop all project development, but it also required the oil giant to dismantle construction it had already started. In February 2011, the Court of Appeal upheld the trial court’s decision that the environmental impact report (EIR) for the expansion failed to explain the true impacts of the project. If Chevron still wanted to expand, the City of Richmond would have to circulate a new EIR, disclosing the true scope of the project, and how to avoid or reduce significant impacts.
In 2004, the South Coast Air Quality Management District (AQMD), charged with protecting Southern Californians from air pollution, issued a permit to allow ConocoPhillips to produce ultra low-sulfur diesel—the production of which causes more pollution than the production of other diesel fuel—in Wilmington. Wilmington residents, particularly children, already suffer from high rates of severe asthma and other life-shortening respiratory problems. The ConocoPhillips project had the potential to increase daily emissions of nitrogen oxide (NOx) by 455 pounds per day.
ConocoPhillips had obtained the AQMD permit without a full environmental impact report (EIR) detailing the true impacts of the project (the difference between current production (baseline) and expected production.) Instead, AQMD issued a mitigated negative declaration, concluding there was not a likelihood of significant impacts from the project because the 455 pounds per day increase was within the range of theoretical permitted emissions.
The California Court of Appeal and, in 2010, the California Supreme Court, found that ConocoPhillips based its analysis of NOx impacts on the wrong CEQA baseline—the baseline should have been the actual current production emissions, not the higher emissions level allowed in the permit. Substantial evidence showed that NOx from the project could exceed the CEQA significance threshold set by AQMD. Now, environmental review must disclose and mitigate the true impacts of the project compared to existing conditions.
The California Environmental Quality Act, or CEQA, is often the best and only tool environmental justice communities have in trying to plan their own communities. It is CEQA that ensures communities have notice and descriptions of proposed projects, that informs them of what impacts the projects may have and what mitigation or alternatives may be possible. It requires a hearing, at which the decision maker learns from communities.
In 1998, when the California Resources Agency adopted rules taking away communities’ rights under CEQA, CBE sued. Pursuing the case all the way to the California Supreme Court, we secured CEQA for generations to come, and an affirmation of “the foremost principle in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” Communities for a Better Env’t v. Cal. Resources Agency (2002) 103 Cal.App.4th 98, 109.
Under the California Constitution, all levels of California courts have authority to review agency actions. Under California’s Warren-Alquist Act, the CEC is the sole state agency empowered to make siting decisions concerning certain new power plants. When the CEC makes mistakes, the Warren-Alquist Act provided that those errors could only be challenged in the California Supreme Court, and if it accepted review, the statute severely restricted what the Court could consider. The California Supreme Court’s review is entirely discretionary: it routinely refuses to hear cases and has never accepted review of a CEC power plant siting decision. Consequently, the CEC was one of the only agencies whose decisions were not subject to routine judicial review. This is in stark contrast to other agencies, such as cities and counties, whose errors can be challenged directly in superior court, which must review all cases brought before them.
In 2013, CBE and our co-plaintiff Center for Biological Diversity co-counseled with Earthjustice and sued the CEC to invalidate the portions of the Warren-Alquist Act that precluded review by the superior and appellate courts, and the provision preventing all courts from reviewing the agency’s findings of fact. The Alameda Superior Court dismissed our case, saying it was not ripe for review. We appealed, and after several years, the Court of Appeal overruled the superior court. The case was remanded and both parties filed motions for summary judgment. We prevailed, but the CEC appealed. The Court of Appeal held oral argument in November 2020 and quickly issued an excellent, published decision confirming the unconstitutionality of both aspects of the Warren Alquist Act. (57 Cal.App.5th 786.) With amicus support from the power industry and the California Independent System Operator, the CEC sought Supreme Court review, which was denied.
On November 6, 2015, CBE filed this impact litigation case on behalf of Youth for Environmental Justice, together with the South Central Youth Leadership Coalition and the Center for Biological Diversity, against the City of Los Angeles to challenge approvals of oil drilling operations in residential neighborhoods. As a result of our case, LA’s Office of Zoning Administration implemented new application and decision-making procedures for oil and gas drilling that end the rubber-stamping of drilling applications and “categorical exemptions,” and now require environmental review and public participation procedures (public hearing, 1500 foot notification, Health Impact Assessments and EIRs).
Shortly after we filed the action, the California Independent Petroleum Association (“CIPA”) filed a cross-complaint. We filed an anti-SLAPP motion to strike, asserting CIPA’s complaint was a Strategic Lawsuit Against Public Participation. The court denied the motion. We immediately appealed. CIPA moved for attorney fees against us and the City, seeking over $700,000 purportedly incurred filing its complaint and defending against the anti-SLAPP motion. The court of appeal delivered a resounding rebuke to CIPA, concluding CIPA’s case was a SLAPP attempt. Working with our co-counsel at the firms Peiffer Wolf Carr & Kane, and Gupta/Wessler, and attorneys at the Center for Biological Diversity, we secured a significant victory protecting communities’ basic right to environmental review over proposed neighborhood oil drilling.