IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION TWO

ALBERT THOMAS PAULEK, et al.,

Case No. E071184
Plaintiffs and Respondents, (Riverside Cty.
v. Super. Ct. No.
RIC1510967 MF,
MORENO VALLEY COMMUNITY RIC1511279, RIC1511327,
SERVICES DISTRICT, et al., RIC1511421, &
RIC1511195)
Defendants and Appellants.

HF PROPERTIES, et al.,

Real Parties in Interest and Appellants.

Document received by the CA 4th District Court of Appeal Division 2.

LABORERS INTERNATIONAL UNION OF
NORTH AMERICA, LOCAL 1184, et al., (Riverside Cty. Super. Ct.
No. RIC 1511279 &
Plaintiffs and Appellants, RIC1511327)
v.

MORENO VALLEY COMMUNITY

SERVICES DISTRICT, et al.,

Defendants and Respondents.

HF PROPERTIES, et al.,

Real Parties in Interest and Respondents.

Riverside County Superior Court

The Honorable Sharon J. Waters, Judge

BRIEF OF AMICI CURIAE THE ATTORNEY GENERAL AND THE

CALIFORNIA AIR RESOURCES BOARD IN SUPPORT OF PLAINTIFFS
AND RESPONDENTS ALBERT THOMAS PAULEK, ET AL. AND
PLAINTIFFS AND APPELLANTS LABORERS INTERNATIONAL UNION
OF NORTH AMERICA, LOCAL 1184, ET AL.

Counsel listed on next page

1
XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
Senior Assistant Attorney General
EDWARD H. OCHOA
Acting Senior Assistant Attorney General
SARAH E. MORRISON
ANNADEL A. ALMENDRAS
RANDY BARROW
Supervising Deputy Attorneys General
*GWYNNE B. HUNTER (SBN 293241)
MICHAEL S. DORSI
HEATHER C. LESLIE
Deputy Attorneys General
1300 I Street, Suite 125
P.O. Box 944255

Document received by the CA 4th District Court of Appeal Division 2.

Sacramento, CA 94244-2550
(916) 210-7810
[email protected]
Attorneys for Amici Xavier Becerra,
Attorney General, and the California Air
Resources Board

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 TABLE OF CONTENTS

Page

INTRODUCTION ........................................................................................ 5
STATEMENT OF INTERESTS .................................................................. 7
I. Interest of the Attorney General ............................................. 7
II. Interest of the California Air Resources Board ...................... 9
BACKGROUND .......................................................................................... 9
I. Legal Background Regarding California’s Efforts to
Combat Climate Change ........................................................ 9
II. Overview of the GHG Analysis in Respondents’ EIR ......... 12

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ARGUMENT ............................................................................................. 13
I. Warehouse and Logistics Projects Are Not Regulated
by Cap-and-Trade and Their Emissions Must Still be
Mitigated by Local Governments ......................................... 15
II. Allowing Respondents’ Untenable Approach to GHG
Analysis Would Have Significant, Negative Statewide
Consequences ....................................................................... 16
A. Respondents’ GHG analysis undermines
California’s GHG reduction goals ............................ 16
B. Respondents’ GHG analysis prevents co-
pollutant reduction measures necessary to
protect California’s environmental justice
communities .............................................................. 20
III. Respondents’ EIR Violates CEQA ...................................... 21
A. The EIR improperly applies CEQA Guidelines
Section 15064.4 to determine the significance
of the Project’s GHG emissions. ............................... 23
B. The EIR failed to apply the SCAQMD’s GHG
emissions threshold to all of the Projects’ GHG
emissions. .................................................................. 25
C. Respondents fail to consider the long-term
GHG impacts of the Project. ..................................... 28
D. Reliance on AIR v. Kern County is improper. ........... 29

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 TABLE OF CONTENTS
(continued)
Page

E. Respondents’ GHG analysis obfuscates the

climate change impacts of this Project,
undermining CEQA’s public disclosure
purpose. ..................................................................... 30
CONCLUSION .......................................................................................... 31

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ii
 TABLE OF AUTHORITIES

Page

CASES

Association of Irritated Residents v. Kern County Bd. of

Supervisors
(2017) 17 Cal.App.5th 708 .............................................................. 30, 31

Center for Biological Diversity v. Department of Fish and

Wildlife
(2015) 62 Cal.4th 204 ............................................................................ 20

City of Long Beach v. City of Los Angeles

Document received by the CA 4th District Court of Appeal Division 2.

(2018) 19 Cal.App.5th 465 .................................................................... 10

Cleveland National Forest Foundation v. San Diego

Association of Governments
(2017) 3 Cal.5th 497 ....................................................................... passim

D’Amico v. Bd. of Medical Examiners

(1974) 11 Cal.3d 1 ................................................................................... 9

Lotus v. Dept. of Transportation

(2014) 223 Cal.App.4th 645 ............................................................ 28, 29

Oakland Heritage Alliance v. City of Oakland

(2011) 195 Cal.App.4th 884 .................................................................. 30

Oro Fino Gold Mining Corp. v. County of El Dorado

(1990) 225 Cal.App.3d 872 ................................................................... 24

People v. County of San Bernardino

(San Bernardino County 2007) No. CIVSS0700329 ............................. 10

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 TABLE OF AUTHORITIES
(continued)
Page

STATUTES

California Code of Regulations, Title 14

§ 15000 et seq. ......................................................................................... 7
§ 15003, subd. (c)................................................................................... 32
§ 15064................................................................................................... 24
§ 15064.4................................................................................ 7, 25, 27, 32
§ 15064.4, subd. (b) ......................................................................... 13, 26
§ 15064.4, subd. (b)(2) ........................................................................... 27
§ 15064.4, subd. (b)(3) ......................................................... 16, 26, 27, 32
§ 15370, subd. (d) .................................................................................. 31

Document received by the CA 4th District Court of Appeal Division 2.

California Code of Regulations, Title 17
§ 95801................................................................................................... 17
§ 95811............................................................................................. 17, 31
§ 95811, subd. (e)(1) .............................................................................. 17
§ 95812................................................................................................... 12

California Health & Safety Code

§ 38561................................................................................................... 21

California Government Code

§ 12511..................................................................................................... 9
§ 12600..................................................................................................... 9
§ 12612..................................................................................................... 9

California Health & Safety Code

§§ 38500, et seq. .................................................................................... 12
§ 38502, subd. (h) .................................................................................... 8
§ 38550................................................................................................... 12
§§ 38561 et seq. ..................................................................................... 12
§ 38561, subd. (e)................................................................................... 13
§ 38566................................................................................................... 12
§ 65080, subd. (b)(2)(A) ........................................................................ 13

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 TABLE OF AUTHORITIES
(continued)
Page

California Public Resources Code

§ 21000..................................................................................................... 7
§ 21001..................................................................................................... 7
§ 21002..................................................................................................... 7
§ 21002.1.................................................................................................. 7
§ 21081................................................................................................... 33

CONSTITUTIONAL PROVISIONS

California Constitution
Article V, § 13.......................................................................................... 9

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COURT RULES

California Rules of Court

Rule 8.200(c)(7) ..................................................................................... 10

OTHER AUTHORITIES

Amir Bazaz, et al., Global Covenant of Mayors, Summary for

Urban Policymakers: What the IPCC Special Report on
Global Warming of 1.5.°C Means for Cities (Dec. 2018)
pp. 22–23 <https://perma.cc/R37B-3WDD> ......................................... 19

Nicky Sheats, Achieving Emissions Reductions for

Environmental Justice Communities Through Climate
Change Mitigation Policy (2017) 41 WM. & MARY
ENVTL. L. & POL’Y REV. 377, 387 ........................................................ 23

California Air Resources Board, 2018 Progress Report:

California’s Sustainable Communities and Climate
Protection Act (November 2018) ..................................................... 14, 20

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 INTRODUCTION

The massive World Logistics Center (Project) will cause

approximately 70,000 daily truck trips transporting goods from the ports of
Long Beach and Los Angeles to Moreno Valley. (AR 003039, 058605–
06.) These vehicle trips will emit hundreds of thousands of metric tons of
greenhouse gas (GHG) emissions every year over the life of the Project.
(AR 002729.) These GHG emissions, along with emissions from electricity
needed to power the more than 40-million-square-foot project, will add to
the existing climate pollutant problem, accumulating in the atmosphere and
persisting for decades or longer.
Rather than analyzing and mitigating the Project’s emissions, lead

Document received by the CA 4th District Court of Appeal Division 2.

agency Respondents Moreno Valley Community Services District, et al.
(Respondents) shirk their responsibility as a local government to address
climate change. They improperly rely on CARB’s statewide Cap-and-
Trade climate program (Cap-and-Trade Program), which does not impose
any regulatory requirements on this Project, as an excuse not to analyze and
mitigate the Project’s climate change impacts. Respondents improperly
ignore roughly 95% of the GHG emissions from the Project (AR 002718–
19), disregarding the significance of those emissions, avoiding their duty to
adopt all feasible mitigation measures, and failing to properly disclose their
responsibility for this pollution to the public.
Respondents’ approach mischaracterizes the way state climate
policies work and violates the California Environmental Quality Act
(CEQA). CEQA directs that Respondents take “all action necessary” to
protect the environment, recognizing the importance of local action driven
through “meaningful” consideration of environmental impacts. (See Pub.
Resources Code, §§ 21000, 21001, 21002, 21002.1.) CEQA does not allow
Respondents to waive their CEQA obligations by pointing to a regulation
that does not bind them (Cal. Code Regs., tit. 14, § 15000 et seq. (CEQA

6
Guidelines), § 15064.4), and Respondents wholly misconstrue the
regulatory scheme they seek to use.
Although Respondents claim their approach is consistent with state
climate policy, it is not. (See Plaintiffs/Appellants’ Supplemental Request
Regarding Judicial Notice, Exhibit 1, California Air Resources Board,
California’s 2017 Climate Change Scoping Plan (Nov. 2017) (2017
Scoping Plan) at pp. 19 [“Local actions are critical for implementation of
California’s ambitious climate agenda”], 97–99 [more extensive discussion
about the need for local action to achieve California’s climate goals]; see
also Health & Saf. Code, §§ 38502, subd. (h) [identifying competing
priorities to balance in emissions reductions], 38592 [nothing in this

Document received by the CA 4th District Court of Appeal Division 2.

division relieves any person, entity, or agency of compliance with other
law], 38690 [identifying overlapping automobile emissions policy].)
Respondents’ approach has been repudiated by CARB, the Attorney
General’s Office, and the Natural Resources Agency, as contrary to critical
state climate goals. The state has long—and expressly—relied on a
portfolio of climate change measures, including significant efforts by local
governments, to address emissions that result from their land use decisions.
Respondents rely on the Cap-and-Trade Program to excuse their
obligation to make better land use decisions. Cap-and-Trade is not
intended as a stand-alone climate policy; instead, it assumes steady efforts
to reduce emissions across the state. While Cap-and-Trade has an
important role to play in limiting emissions from entities like power plants
and refineries, the Program does not cover a host of other sources,
including warehouses. Although the Program creates financial and legal
obligations on fuel suppliers and electricity generators that may ultimately
supply this Project, the Project experiences neither the direct legal
requirements of the Program nor the full economic costs associated with its
additional emissions. If projects were allowed to evade responsibility in

7
this way, they would steadily increase Cap-and-Trade Program costs
upstream, while locking the state into ever-more expensive and
inappropriate high-emitting development patterns. This is a recipe for
failure in achieving the state’s climate goals. To avoid this scenario, the
state relies on local governments to limit emissions from new development
projects. Emissions from such projects are the responsibility of local
governments and should be mitigated through the proper application of
CEQA. Eliminating this crucial piece of the state’s portfolio approach
undermines the state’s climate goals.
We have arrived at a crossroads for the future of GHG analysis under
CEQA. If Respondents prevail, this case could singlehandedly undo the

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will of the Legislature by excusing essentially all projects from the
obligation to consider GHG impacts from vehicle trips and energy use.
This Court should reject Respondents’ argument and confirm that all lead
agencies must do their part if we are to meet the state’s long-term climate
stabilization objective.
STATEMENT OF INTERESTS

I. INTEREST OF THE ATTORNEY GENERAL

California has already begun to experience significant adverse

impacts from climate change such as “more frequent, more catastrophic and
more costly” wildfires, drought, “coastal erosion, disruption of water
supply, threats to agriculture, spread of insect-borne diseases, and
continuing health threats from air pollution.” (2017 Scoping Plan at p.
ES2.) As California’s chief law enforcement officer, the Attorney General
has the independent power and duty to protect the interest of all of
California’s current and future residents in a clean, health, and safe
environment. (See Cal. Const., art. V, § 13; Gov. Code, §§ 12511, 12600–
12612; D’Amico v. Bd. of Medical Examiners (1974) 11 Cal.3d 1, 15.)

8
Upholding this duty, the Attorney General has actively encouraged lead
agencies to fulfill their CEQA responsibilities as they relate to climate
change for well over a decade. (See, e.g., Cleveland National Forest
Foundation v. San Diego Association of Governments (2017) 3 Cal.5th 497
(SANDAG) at p. 519 [“nothing we say today invites regional planners to
‘shirk their responsibilities’ under CEQA”]; City of Long Beach v. City of
Los Angeles (2018) 19 Cal.App.5th 465; People v. County of San
Bernardino (San Bernardino County 2007) No. CIVSS0700329.)
The World Logistics Center, like every large development project, has
the potential to either facilitate or hinder the state’s achievement of its
climate goals. Here, Respondents’ unsupported approach to analyzing the

Document received by the CA 4th District Court of Appeal Division 2.

Project’s GHG emissions has the potential to seriously undermine the
overall effort to meet the state’s science-based GHG reduction goals for the
transportation and land use sectors and to disproportionately affect
environmental justice communities.1 Given these significant interests, the
Attorney General submits this amicus brief in support of Appellants,2 in
compliance with rule 8.200(c)(7) of the California Rules of Court in his
independent capacity and on behalf of the California Air Resources Board
(CARB).

1
The Attorney General opposed this methodology in a comment
letter it submitted on the revised sections of the Final EIR for this Project
(Revised Final EIR or RFEIR). (Letter re: Revised Sections of the Final
Environmental Impact Report for the World Logistics Center Project, Sept.
7, 2018, at:
<https://oag.ca.gov/sites/all/files/agweb/pdfs/environment/comments-
revised-sections-feir.pdf?>.) The Revised Final EIR is not at issue in this
litigation, but it includes the original EIR’s same flawed GHG analysis.
2
This brief is submitted in support of Plaintiffs and Respondents
Albert Thomas Paulek, et al. and Plaintiffs and Appellants Laborers
International Union of North America, Local 1184, et al.

9
II. INTEREST OF THE CALIFORNIA AIR RESOURCES BOARD

CARB has a strong interest in participating in this case as amicus

curiae. CARB is charged with protecting the public from the harmful
effects of air pollution and developing programs and actions to fight
climate change. As creator and administrator of the Cap-and-Trade
Program, and as the lead agency on the Scoping Plan setting out many of
the state’s climate policies, CARB is an expert on how the Cap-and-Trade
Program was designed to function and interact with other state laws and
programs as part of California’s portfolio approach to addressing GHG
emissions. In their briefing, Respondents misrepresent CARB as
effectively endorsing the EIR’s approach to GHG analysis. (Combined

Document received by the CA 4th District Court of Appeal Division 2.

Respondents’ and Cross-Appellants’ Opening Brief at pp. 17, 36–38, 47–
48, 56, 63.) But CARB has repeatedly made clear it does not support
Respondents’ approach.3 As explained more fully below, Respondents’
arguments regarding GHG analysis are contrary to the construction given to
applicable regulations by CARB, and by the Natural Resources Agency,
agencies charged with interpreting and enforcing the programs at issue.
BACKGROUND

I. LEGAL BACKGROUND REGARDING CALIFORNIA’S EFFORTS

TO COMBAT CLIMATE CHANGE

In 2006, recognizing the importance of combatting climate change

and furthering the objectives of Executive Order S-3-05, the Legislature
enacted the Global Warming Solutions Act of 2006, commonly known as

3
CARB also explained this approach when it formally opposed the
GHG analysis Respondents rely on here through its comments on the
RFEIR for this Project. (Letter re: World Logistics Center Revised Final
Environmental Impact Report, Sept. 7, 2018, at:
<https://ww3.arb.ca.gov/toxics/ttdceqalist/logisticsfeir.pdf?_ga=2.2368136
40.855160185.1575908432-1460774677.1564163003>.)

10
AB 32. (Health & Saf. Code, § 38500, et seq.) AB 32 mandates that, by
2020, California must reduce its total statewide annual GHG emissions to
the level they were in 1990, and to 40 percent below that level by 2030.
(Health & Saf. Code, §§ 38550, 38566.) This mandate putts the state on a
trajectory of significant and continuous GHG emissions reductions through
2050, in order to stabilize the atmospheric levels of GHGs and reduce the
risk of dangerous climate change.
Under AB 32, the Legislature tasked CARB with preparing a
guidance planning document, known as the Scoping Plan that, while not
binding, set out the state’s views based on extensive environmental and
economic analyses on how policies may be effectively implemented so that

Document received by the CA 4th District Court of Appeal Division 2.

California will meet the its ambitious GHG reduction goals. (See Health &
Saf. Code, §§ 38561 et seq.) The Scoping Plan emphasizes the need for a
multi-pronged emissions reduction approach that can be carried out by
many entities and reflects the state’s position that it is necessary to reduce
emissions at the source and through reductions in demand for energy.
(2017 Scoping Plan, pp. 12, 19, 28).
The Scoping Plan includes a suite of regulations, measures, and
policies designed to operate together to reduce GHG emissions. The Cap-
and-Trade Program is one such policy. Entities that are directly subject to
the Cap-and-Trade Program—like power plants, factories, refineries, and
electricity generators and importers—must purchase and surrender
compliance instruments (e.g., allowances) for their emissions. (See Cal.
Code Regs., tit. 17, § 95812.) Downstream emitters such as cars and
trucks, much less warehouses that such cars and trucks drive to, are not
covered entities under Cap-and-Trade and have no such obligation to
purchase or surrender allowances. The existence of the Program, in other
words, does not obviate the need for action at other levels of the economy.
On the contrary: If sources like the long-lasting development project in this

11
case build without regard to their emissions, they will increase overall state
emissions and hence increase pressure and costs within the Cap-and-Trade
Program.
To address the wide range of GHG emissions sources that are not
directly controlled through the Cap-and-Trade Program, the state relies on
other policies4—many of which require collaboration between the state and
local governments. Agencies large and small across the state (including,
crucially, cities and counties) are responsible for ensuring that proposed
new land use plans, transportation projects, and development projects are
consistent with evolving scientific knowledge and state regulatory schemes;
CEQA is a critical tool for implementing these obligations.5 (See

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SANDAG, supra, 3 Cal.5th at p. 519; see also CEQA Guidelines, §
15064.4, subd. (b).)
The Scoping Plan makes clear that the Cap-and-Trade Program was
not designed to replace local governments’ long-term planning obligations,
but rather designed to work in concert with those policies to achieve the

4
See, e.g., Health & Saf. Code, §§ 38561, subd. (e) (requiring
CARB to consider “the relative contribution of each source or source
category to statewide greenhouse gas emissions”), 43018.5, subd. (a)
(requiring CARB to “adopt regulations that achieve the maximum feasible
and cost-effective reduction of greenhouse gas emissions from motor
vehicles”).
5
For example, CARB provides regional emission reduction targets
for local jurisdictions’ land use and transportation planning obligations
under Senate Bill (SB) 375. (See Health & Saf. Code, § 65080, subd.
(b)(2)(A) [known as “The Sustainable Communities and Climate Protection
Act”].) CARB also works with regional air pollution control districts and
air quality management districts to address emission sources that have both
local and global effect, including methane from landfills and
hydrofluorocarbons (HFCs), as well as to support state- and federally-
mandated permitting of certain industrial sources of GHG emissions. (See
California Air Resources Board, California’s 2017 Climate Change
Scoping Plan (Nov. 2017) pp. 3, 104
<https://ww3.arb.ca.gov/cc/scopingplan/scoping_plan_2017.pdf >.)

12
state’s goals. (2017 Scoping Plan at p. 102 [“California’s future climate
strategy will require increased focus on integrated land use planning”].)
Recent state reports have shown that California’s vehicular GHG
emissions continue to increase year after year, and CARB has emphasized
the need for local action. (See California Air Resources Board, 2018
Progress Report: California’s Sustainable Communities and Climate
Protection Act (November 2018) at 4.) These increasing emissions
demonstrate the crucial need for more complementary local action—not
less—to ensure the state meets its GHG targets in cost-effective ways.
In light of the state’s GHG reduction policies, and CEQA’s focus on
embedding environmental considerations in local decision-making, the

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Supreme Court has emphasized that careful CEQA analysis of GHG
impacts will be required going forward, as lead agencies must “stay in step”
with the evolving science and law related to the state’s long-term climate
objectives in order to carry out their duties under CEQA. (SANDAG,
supra, 3 Cal.5th at p. 519.)
II. OVERVIEW OF THE GHG ANALYSIS IN RESPONDENTS’ EIR

Mischaracterizing the collaborative efforts required to combat climate

change and the role of the Cap-and-Trade Program, Respondents’ EIR
takes a very unusual and troubling approach to addressing the Project’s
GHG-related impacts.6 Respondents divide the Project’s GHG emissions
into two categories, which the EIR terms “capped” and “uncapped.” (AR
002719.) What the EIR deems “uncapped” emissions constitute only about
4.6% of the Project’s emissions. (Ibid.) The “uncapped” category includes
comparatively minor landfill emissions caused by waste generated at the

6
The Attorney General and CARB only address Respondents’
inappropriate use of the Cap-and-Trade Program in the GHG analysis of the
EIR. This amicus brief is not intended to and should not be construed as an
exhaustive discussion of the EIR’s compliance with CEQA.

13
Project and the use of refrigerants at the Project. (Ibid.) For these
emissions, the EIR follows the approach that would be expected under
CEQA: the City of Moreno Valley, in its discretion, designated a
significance threshold (in this case, 10,000 metric tons of GHG emissions
as recommended by the South Coast Air Quality Management District),
compared the “uncapped” emissions to that threshold, and required feasible
mitigation measures to ensure those emissions fall below that threshold.
(AR 002719, AR 002729.)
What the EIR terms “capped” emissions, however, constitute the
remaining 95.4% of the Project’s predicted emissions. (AR 002719.)
Those include emissions caused by mobile sources (namely, diesel trucks),

Document received by the CA 4th District Court of Appeal Division 2.

as well as natural gas and electricity use at the Project. (Ibid.) For these
emissions, the EIR deviates dramatically from standard CEQA
methodology. The EIR asserts these emissions are “covered” by Cap-and-
Trade and therefore wholly exempt from any further CEQA analysis or
mitigation. (AR 002723.) The EIR does not compare the Project’s
“capped” emissions to the 10,000 metric ton threshold. (AR 002725.)
Indeed, after mitigation measures are applied to the Project, the “capped”
emissions remain nearly 40 times greater than the significance threshold.
(AR 002729.) In forgoing any attempt to decrease the Project’s true total
emissions to a less-than-significant level, Respondents fail to consider
further mitigation measures that could have made this Project more
compatible with the state’s climate goals. As described below, this
approach is unlawful.
ARGUMENT

Respondents avoid disclosing and addressing mitigation for thousands

of tons of GHG emissions each year pursuant to the misguided theory that
those emissions are addressed by Cap-and-Trade. This argument is
founded on misunderstandings of both the Cap-and-Trade Program and

14
CEQA—both of which require different industries and projects to take
responsibility for their own impacts, rather than rely on others for
mitigation. Most fundamentally, warehouse projects like the Project are not
subject to Cap-and-Trade. Respondents therefore cannot accurately assert
that “compliance” with Cap-and-Trade provides any legal basis to avoid
analyzing and adequately mitigating the majority of the Project’s emissions.
The CEQA Guidelines allow projects to consider regulations “[with]
which the project complies” for purposes of considering significance of
GHG emissions. (See CEQA Guidelines, § 15064.4, subd. (b)(3).)
However, that consideration does not apply here and Respondents’
approach, which in effect relies on other entities to undertake Respondents’

Document received by the CA 4th District Court of Appeal Division 2.

CEQA mitigation, not only violates both CEQA’s legal requirements and
public disclosure and mitigation purposes, but also undermines the state
climate objectives Cap-and-Trade is intended to further. Cap-and-Trade is
designed to act in tandem with—not in spite of—critical tools like local
land use planning to reduce GHG emissions. If allowed for Respondents
and adopted by other local jurisdictions, such abdication by local
governments would dramatically hinder the state’s ability to achieve its
legislatively mandated long-term climate stabilization objectives and forgo
pollution reduction co-benefits from GHG mitigation measures that are
vital for environmental justice communities.
The Resources Agency agrees with CARB that “to demonstrate
consistency with an existing GHG reduction plan, a lead agency would
have to show that the plan actually addresses the emissions that would
result from the project.” (See California Natural Resources Agency, Final
Statement of Reasons for Regulatory Action: Amendments to the State
CEQA Guidelines Addressing Analysis and Mitigation of Greenhouse Gas
Emissions Pursuant to SB 97 (2009),

15
<http://resources.ca.gov/ceqa/docs/Final_Statement_of_Reasons.pdf>, at p.
27.)
I. WAREHOUSE AND LOGISTICS PROJECTS ARE NOT
REGULATED BY CAP-AND-TRADE AND THEIR EMISSIONS
MUST STILL BE MITIGATED BY LOCAL GOVERNMENTS

Warehouse and logistics complexes are not regulated by Cap-and-

Trade. The Cap-and-Trade Program thus provides no legal or policy basis
for Respondents to avoid their obligation to evaluate and mitigate GHG
emissions. Cap-and-Trade applies “an aggregate greenhouse gas allowance
budget [to] covered entities and provides a trading mechanism for” such
allowances. (Cal. Code Regs., tit. 17, § 95801 (emphasis added).)

Document received by the CA 4th District Court of Appeal Division 2.

Respondents seek to use Cap-and-Trade to zero-out and excuse the
application of feasible mitigation measures to over 95% of all GHG
emissions from the Project. Cap-and-Trade applies only to expressly
identified entities (“covered entities”) such as cement producers, petroleum
refiners, electricity generators, natural gas suppliers, fuel importers, and
liquid petroleum gas suppliers. (Cal. Code Regs., tit. 17, § 95811.)
Warehouse and logistics complexes are not covered entities. Cap-and-
Trade compliance instruments do not factor in whatsoever because this
Project is not covered by Cap-and-Trade.
The mere fact that warehouse and logistics complexes are in the chain
of commerce with covered entities does not transform them into covered
entities themselves. As an example, although the operator of a refinery that
produces gasoline in California is subject to Cap-and-Trade, (Cal. Code
Regs., tit. 17, § 95811, subd. (e)(1)), entities downstream from that refinery
in the chain of commerce are not. The refinery itself may have compliance
obligations under the Cap-and-Trade Program, which can be met by
reducing the refinery’s own GHG emissions or surrendering allowances,
but the gas station that resells the gas, the truck drivers who purchase it, and

16
the warehouses to which the trucks drive do not have compliance
obligations. Under the state’s portfolio approach, while the refinery may
have met some or all of its climate obligations via Cap-and-Trade, the
downstream entities have not. Because warehouses receive no set price or
regulatory signals from Cap-and-Trade, they are not being directly
incentivized to reduce emissions. Instead, other components of the state’s
portfolio address those emissions. Nothing in Cap-and-Trade explicitly or
impliedly repealed the use of other measures to address climate change;
they were designed to work together. (See, e.g., 2017 Scoping Plan at p.
28.) Local governments must responsibly plan new development to further
the state’s climate goals.

Document received by the CA 4th District Court of Appeal Division 2.

II. ALLOWING RESPONDENTS’ UNTENABLE APPROACH TO GHG
ANALYSIS WOULD HAVE SIGNIFICANT, NEGATIVE
STATEWIDE CONSEQUENCES

If Respondents’ approach to GHG analysis is endorsed, other lead

agencies will undoubtedly follow this approach, and emissions from the
transportation and land use sectors will be largely omitted from analysis
and mitigation under CEQA. Widespread adoption of this approach would:
(1) place the entire burden of California’s well-established, long-term land-
use related GHG reduction goals on Cap-and-Trade, thereby straining the
program beyond its intended purpose and (2) expose already burdened
communities in the state to greater amounts of GHG emissions and co-
pollutants that accompany GHG emissions, such as diesel particulate matter
and nitrogen oxides.
A. Respondents’ GHG analysis undermines California’s
GHG reduction goals

As explained above, the Cap-and-Trade Program is just one part of a

suite of complementary measures designed to achieve California’s
ambitious GHG reduction and climate stabilization objectives. Cap-and-

17
Trade provides no legal basis for Respondents to avoid local governments’
obligations as lead agencies under CEQA to evaluate and mitigate GHG
emissions from a project that the Cap-and-Trade Program does not even
cover.
While any one policy may be insufficient or at risk of circumvention,
the suite of policies work in concert toward the state’s goals.7,8 This
overlap is by design, and makes the suite of policies more resilient to
changed circumstances, enforcement problems, and legal challenges. The
upstream Cap-and-Trade Program thus works in tandem with downstream
choices, including planning choices, to ensure both that total emissions
decline and that projects throughout the state are designed to avoid putting

Document received by the CA 4th District Court of Appeal Division 2.

undue upstream pressure on emissions or control costs. Weakening one
policy because another policy might address it runs contrary to this
approach.

7
See 2017 Scoping Plan, supra, pp. ES7–8, 10, 22, 97; cf. Elinor
Ostrom, A Polycentric Approach for Coping with Climate Change (2014)
15 Annals Econ. & Fin. 97, 123 <https://perma.cc/YSF4-B7N8> (Nobel
laureate describing an ideal policy approach to climate change as
“Complex, Multi-Level Systems to Cope with a Complex, Multi-Level
Problem”); Amir Bazaz, et al., Global Covenant of Mayors, Summary for
Urban Policymakers: What the IPCC Special Report on Global Warming of
1.5.°C Means for Cities (Dec. 2018) pp. 22–23 <https://perma.cc/R37B-
3WDD> (identifying interaction between sources of governance and
importance of incentives beyond financial consequences at the community
level).
8
Complementary measures are also important in light of the risk to
any one measure posed by litigation. Private parties and the federal
government have challenged California’s GHG reduction policies,
including aspects of the Cap-and-Trade Program. California’s GHG
vehicle emissions regulatory authority is currently also under challenge.
The wisdom of the portfolio approach endorsed by the Scoping Plan is to
ensure that the state’s efforts continue via many channels, rather than
relying on any one potentially challenged measure.

18
 If other lead agencies adopt Respondents’ approach to GHG analysis
under CEQA, their development projects would produce millions of metric
tons of GHG emissions that would go unmitigated through what amounts to
an unauthorized categorical exemption from CEQA. The economic
analyses and feasibility of achieving the state’s legislatively mandated
goals in the Scoping Plan account for all policies working in tandem. If
any one policy fails to deliver reductions, this would put strain on the Cap-
and-Trade Program to deliver more reductions than anticipated and at
higher costs.
Respondents’ failure to account for the significance of the Project’s
GHG emissions from transportation is particularly troubling in light of the

Document received by the CA 4th District Court of Appeal Division 2.

fact that the transportation sector accounts for over 35% of the state’s total
GHG emissions and these emissions continue to rise. (2017 Scoping Plan,
supra, pp. ES1, 11 [charts of emissions by source]; see also California Air
Resources Board, 2018 Progress Report: California’s Sustainable
Communities and Climate Protection Act (November 2018) at 4.) As the
California Supreme Court noted, “transportation emissions are affected by
the location and density of residential and commercial development, the
Scoping Plan does not propose statewide regulation of land use planning
but relies instead on local governments.” (Center for Biological Diversity
v. Department of Fish and Wildlife (2015) 62 Cal.4th 204, 230; emphasis
added.) Local governments thus play a unique role in decreasing GHG
emissions from the transportation sector.
Respondents contend that because statewide emissions are capped
under the Cap-and-Trade Program, the amount of emissions from “capped”
sources will be the same with or without their Project, but this claim
ignores both their obligations under CEQA to disclose and mitigate their
emissions and the intended design of the Cap-and-Trade Program. (See

19
Combined Respondents’ and Cross-Appellants’ Opening Brief at pp. 48–
49.)
Cap-and-Trade is not a program designed to reduce emissions from
local government actions, or land use; instead, it was designed on the
assumption that local actors would simultaneously work to reduce
emissions within their spheres. Cap-and-Trade alone was designed to
account for less than 40% of the total emissions reductions needed to
achieve California’s 2030 climate goals, and on the explicit assumption that
local design choices would continue to reduce overall emissions (and hence
economy-wide costs in the Cap-and-Trade Program). (2017 Scoping Plan
at p. 28.) Indeed, relying entirely on the Cap-and-Trade Program to address

Document received by the CA 4th District Court of Appeal Division 2.

land use would produce a mismatch that would strain the Program by
functionally increasing demand for emissions reductions as unregulated
entities displace their obligations onto the Program rather than taking action
themselves, raising compliance costs for covered entities across all sectors
and all consumers across the state at all income levels. California’s
portfolio approach was designed to meet AB 32’s requirement that
“greenhouse gas emissions reduction activities . . . adopted and
implemented by [CARB] are complementary, nonduplicative, and can be
implemented in an efficient and cost-effective manner.” (Cal. Health &
Saf. Code, § 38561.) By taking a portfolio approach, the state has
recognized that taking GHG action in specific sectors ensures that we
achieve our broader climate and energy demand reduction goals. (See 2017
Scoping Plan at pp. 2, 24, 100 [describing Governor Brown’s five key
climate change strategy “pillars”].) Ultimately, cost increases could make
the Cap-and-Trade Program less effective as a key part of the suite of
California’s climate policies.
In sum, Respondents’ position is fundamentally inconsistent with the
state’s approach to climate change, and so disregards significant emissions

20
that should properly be addressed under CEQA, not an unrelated emissions
program like Cap-and-Trade. Moreover, Respondents’ approach would
allow similar emissions from other projects that would follow its lead. (See
Part III(A), infra.) The majority of land use projects are, like this Project,
not covered by the Cap-and-Trade Program. Freight alone is an enormous
industry; over 1.5 billion tons of freight were moved in California during
2015. (Id. at p. 73.) And other types of projects such as residential
developments or agricultural enterprises may seek to invoke precedent
created by this case. Thus, even if the Project standing alone does not
excessively strain the Cap-and-Trade system, the collective weight of new
projects failing to address GHG emissions in the CEQA process would.

Document received by the CA 4th District Court of Appeal Division 2.

B. Respondents’ GHG analysis prevents co-pollutant
reduction measures necessary to protect California’s
environmental justice communities

Permitting massive land development projects without requiring the

necessary mitigation measures to decrease project emissions will also harm
California’s environmental justice communities—those already suffering
from the worst environmental pollution in the state. The census tract the
Project will be built in is ranked in the 75th to 80th percentile of census
tracts in California in terms of greatest pollution burden indicators and
health and vulnerability factors for population characteristic indicators.
(CalEnviroScreen 3.0 for Census Tract 6065042624, Office of
Environmental Health Hazard Assessment, last visited November 27, 2019
<https://oehha.ca.gov/calenviroscreen/report/calenviroscreen-30>.) Even
without the Project, residents of this census tract already experience ozone,
the main ingredient of smog, at a rate higher than 98% of the rest of
California. (Ibid.) Relatedly, these residents also experience
cardiovascular disease, which can result from exposure to air pollution, at a
rate higher than 95% of the state. (Ibid.)

21
 Considering additional mitigation properly may have resulted in
additional zero-emissions technologies used for the Project, including,
perhaps, from its trucks, as many commenters recommended. If such
measures are not considered from this Project and other future projects like
it are not mitigated, Moreno Valley and communities throughout the state
will likely continue to suffer from worse air pollution. (See Nicky Sheats,
Achieving Emissions Reductions for Environmental Justice Communities
Through Climate Change Mitigation Policy (2017) 41 WM. & MARY
ENVTL. L. & POL’Y REV. 377, 387 [“[E]ven without the intentional
maximization of co-pollutant reduction, there should be incidental co-
pollutant reductions as GHGs are being reduced [which] should improve

Document received by the CA 4th District Court of Appeal Division 2.

the health of local communities.”]; see also Scoping Plan at p. 74 [“Air
pollution from tailpipe emissions contributes to respiratory ailments,
cardiovascular disease, and early death, with disproportionate impacts on
vulnerable populations such as children, the elderly, those with existing
health conditions . . . , low income communities, and communities of
color.”].)
III. RESPONDENTS’ EIR VIOLATES CEQA

As explained above, the EIR’s approach to GHG analysis

misrepresents the Cap-and-Trade Program and the Project’s place in that
scheme. As a result, the EIR takes an unsupportable approach to evaluating
the significance of GHG emissions from the Project. Contrary to CEQA’s
focus on information disclosure and local responsibility for mitigation, the
EIR ignores the vast majority of the Project’s emissions, and, in a
misleading analysis, compares only a small fraction of the Project’s
emissions to the applicable significance threshold. This flawed analysis
leads the EIR to conclude that the impact from GHG emissions would be
mitigated to a less-than-significant level, misleading the public and shirking
mitigation responsibilities. Even if the Cap-and-Trade Program directly

22
applied to the Project’s emissions (it does not since, as explained above,
this Project is not a covered entity under the Program), this method of
evaluating a project’s significance after taking into account purported
“mitigation” or impact-reducing components is not allowed by CEQA. As
a result of its flawed analysis, the EIR fails to adopt all feasible mitigation
measures and subverts CEQA’s important political function of ensuring
informed decision making and informed public participation.
The EIR’s approach to GHG analysis fails on multiple levels.
Perhaps most critically, in addition to pointing to “compliance” with a
regulation that simply does not cover the Project to excuse mitigation, the
EIR focuses on a single significance consideration while ignoring other

Document received by the CA 4th District Court of Appeal Division 2.

evidence showing potentially significant impacts. CEQA does not allow
clearly significant GHG impacts to be overlooked, even if a lead agency
believes those impacts are considered less than significant under one
particular metric. (See, e.g., Oro Fino Gold Mining Corp. v. County of El
Dorado (1990) 225 Cal.App.3d 872, 274 [citizens’ personal observations
about the significance of noise impacts on their community constituted
substantial evidence that the impact may be significant and should be
assessed in an EIR, even though the noise levels did not exceed general
planning standards]; accord SANDAG, supra, 3 Cal.5th at p. 515 [“An
adequate description of adverse environmental effects is necessary to
inform the critical discussion of mitigation measures and project
alternatives at the core of the EIR”].) This failure to address potentially
significant impacts not only minimizes the Project’s significant impacts, but
also warps the evaluation of whether the Project’s contribution to GHG
emissions is a cumulatively considerable impact. (CEQA Guidelines, §
15064.) The cumulative effect of dozens of similar warehouse projects in
the Moreno Valley area could—and almost certainly will—be significant.

23
 A. The EIR improperly applies CEQA Guidelines Section
15064.4 to determine the significance of the Project’s
GHG emissions.

The Resources Agency, the state’s expert on CEQA, has rejected the
approach of using purported “compliance” with an inapplicable program to
mitigate emissions. (Final Statement of Reasons for the CEQA Guidelines
Amendments (2018) at p. 27 [“a subdivision project could not demonstrate
‘consistency’ with [CARB’s] Early Action Measures because those
measures do not address emissions resulting from a typical housing
subdivision”].)
The EIR misapplies CEQA Guidelines section 15064.4, which offers

Document received by the CA 4th District Court of Appeal Division 2.

multiple factors a lead agency should consider in assessing the significance
of impacts from GHG emissions. That Guideline provides, in pertinent
part:
(b) A lead agency should consider the following factors, among
others, when assessing the significance of impacts from
greenhouse gas emissions on the environment:
(1) The extent to which the project may increase or reduce
greenhouse gas emissions as compared to the existing
environmental setting;
(2) Whether the project emissions exceed a threshold of
significance that the lead agency determines applies to the
project.
(3) The extent to which the project complies with regulations or
requirements adopted to implement a statewide, regional, or
local plan for the reduction or mitigation of greenhouse gas
emissions. Such requirements must be adopted by the relevant
public agency through a public review process and must reduce
or mitigate the project's incremental contribution of greenhouse
gas emissions. If there is substantial evidence that the possible
effects of a particular project are still cumulatively
considerable notwithstanding compliance with the adopted

24
 regulations or requirements, an EIR must be prepared for the
project.9

(CEQA Guidelines, § 15064.4, subd. (b), italics added.)

As reflected in subdivision (b)(3), compliance with “regulations or
requirements adopted to implement a statewide, regional, or local plan” can
factor into the assessment of GHG significance, but only when the project
complies with those regulations or requirements. Yet, the EIR relies upon
subsection (b)(3) to claim that emissions for which upstream suppliers
surrendered allowances need not be analyzed and mitigated under CEQA.
This approach excuses all of the Project’s transportation- and electricity-
related emissions, thus requiring analysis and mitigation of only a tiny

Document received by the CA 4th District Court of Appeal Division 2.

fraction of the Project’s emissions.

9
The 2018 update to the CEQA Guidelines added the following
language:
(b) In determining the significance of a project’s greenhouse gas
emissions, the lead agency should focus its analysis on the reasonably
foreseeable incremental contribution of the project’s emissions to the
effects of climate change. The agency’s analysis should consider a
timeframe that is appropriate for the project. The agency’s analysis also
must reasonably reflect evolving scientific knowledge and state regulatory
schemes.
(b)(3) . . . In determining the significance of impacts, the lead
agency may consider a project’s consistency with the State’s long-term
climate goals or strategies, provided that substantial evidence supports the
agency’s analysis of how those goals or strategies address the project’s
incremental contribution to climate change.
(c) A lead agency may use a model or methodology to estimate
greenhouse gas emissions resulting from a project. The lead agency has
discretion to select the model or methodology it considers most appropriate
to enable decision makers to intelligently take into account the project’s
incremental contribution to climate change. The lead agency must support
its selection of a model or methodology with substantial evidence. The
lead agency should explain the limitations of the particular model or
methodology selected for use.

25
 Respondents’ application of subdivision (b)(3) to this Project is
wrong. Because the Project is not a covered entity under the Cap-and-
Trade Program, subsection (b)(3) is inapplicable, as the project cannot
“comply” with Cap-and-Trade at all. Moreover, as discussed above, such
“compliance” would undermine Cap-and-Trade’s purposes if adopted as a
CEQA approach, not serve the environmental goals both AB 32 and CEQA
set out to deliver.
B. The EIR failed to apply the SCAQMD’s GHG
emissions threshold to all of the Projects’ GHG
emissions.

The EIR takes an impermissible approach of applying the Cap-and-

Document received by the CA 4th District Court of Appeal Division 2.

Trade Program to ostensibly reduce the Project’s emissions significantly,
then comparing only that reduced quantity to the bright-line significance
threshold. This approach is not supported in law.10
CEQA requires lead agencies to “make a good-faith effort, based to
the extent possible on scientific and factual data, to describe, calculate or
estimate the amount of greenhouse gas emissions resulting from a project.”
(CEQA Guidelines, § 15064.4.) CEQA then provides that the lead agency
must consider “whether the project emissions exceed a threshold of
significance the lead agency determines applies to the project.” (Id. at
subd. (b)(2).) As explained in the EIR, a potentially appropriate

10
The EIR also attempts to justify excluding “capped emissions”
from its significance analysis by referencing two seemingly cherry-picked
2013 mitigated negative declarations from other lead agencies, and one
2014 guidance document from the San Joaquin Valley Air Pollution
Control District (SJVAPCD). (EIR 4.7-33.) The EIR does not explain why
it chose to follow the methodology allegedly used in two obscure mitigated
negative declarations and in a policy document from an air district in a
different air basin, rather than following traditional CEQA GHG analysis
and mitigation principles. These irrelevant, project-specific documents do
not constitute substantial evidence supporting Respondents’ argument.

26
significance threshold in this case is the South Coast Air Quality
Management District’s (SCAQMD) SCAQMD’s 10,000 metric ton limit.11
(EIR at p. 4.7-32.)
The problem here is that the EIR does not compare the Project’s total
GHG emissions against this 10,000 metric ton threshold, and then mitigate
those emissions to below that threshold to the extent feasible. Instead, the
EIR simply subtracts from the total any GHG emissions it deems to be
“capped,” and compares only the few “non-capped” emissions to the bright-
line threshold. Because the EIR only compares a small fraction of the
Project’s GHG emissions to the applicable bright-line significance
threshold, it only requires relatively minor mitigation measures to reduce

Document received by the CA 4th District Court of Appeal Division 2.

the Project’s emissions to what the EIR considers “less than significant.”
(EIR at pp. 1-55–57.)
Respondents’ approach improperly applies so-called “mitigation” (the
Cap-and-Trade Program) before comparing GHG emissions to the
significance threshold. By combining impacts and mitigation analyses, it is
unclear how the purported mitigation reduces impacts. This approach was
rejected in Lotus v. Dept. of Transportation (2014) 223 Cal.App.4th 645,
where the court stated:
The failure of the EIR to separately identify and analyze the
significance of the impacts . . . before proposing mitigation measures
is not merely a harmless procedural failing. . . . [T]his shortcutting of
CEQA requirements subverts the purposes of CEQA by omitting
material necessary to informed decisionmaking and informed public
participation. It precludes both identification of potential

11
It is worth noting that the Scoping Plans are not binding as to any
particular CEQA methodology, or as to land use planning generally, and do
not require use of any particular significance threshold. They are guidance
documents; individual land use authorities can and do depart from
particular suggestions in them if they have appropriate reasons to do so.
The issue in this case, however, is that the Cap-and-Trade program does not
provide such an appropriate reason.

27
 environmental consequences arising from the project and also
thoughtful analysis of the sufficiency of measures to mitigate those
consequences. The deficiency cannot be considered harmless.

(Id. at p. 658.)
Furthermore, if the full scope of the GHG emissions attributable to the
Project were compared to the applicable bright line threshold, the
emissions, as mitigated, would still be substantially over the threshold—
and would therefore require consideration of additional mitigation
measures. (See EIR, pp. 4.7-35–36.)
Applying appropriate mitigation measures to reduce the so-called
“capped” emissions would not “result in double counting and double

Document received by the CA 4th District Court of Appeal Division 2.

mitigating emissions that are already mitigated through cap-and-trade” as
Respondents assert. (Combined Respondents’ and Cross-Appellants’
Opening Brief at p. 57.) Gesturing towards Cap-and-Trade regulated
entities is not proper mitigation because Cap-and-Trade does not apply to
this Project in any way, and the Project itself has ample mitigation
opportunities onsite. To mitigate this Project’s GHG emissions,
Respondents would have to address emissions from mobile sources, which
account for over 70% of the Project’s total emissions (which again are
nearly 40 times greater than the significance threshold). (AR002729.) To
reduce these emissions, fewer trucks could drive from the Project to the
Ports of Long Beach and Los Angeles every day, the Project could be built
closer to the ports, the Project could require more zero emission vehicles be
used or provide charging equipment or incentives to encourage their use, or
any number of other meaningful mitigation measures. But Cap-and-Trade
does not require any of this. Such measures are instead included by local
governments in local land use projects to ensure approved project impacts
fall below significance thresholds. By never counting the “capped”
emissions toward the significance threshold, there is no counting and no

28
project-level mitigation of hundreds of thousands of tons of yearly GHG
emissions from this Project.
C. Respondents fail to consider the long-term GHG
impacts of the Project.

The Supreme Court has made clear that an EIR should consider a
project’s long-term GHG impacts, and should address whether the project
as a whole is in accord with the state’s climate goals. (Cleveland National
Forest Foundation v. San Diego Association of Governments (2017) 3
Cal.5th 497 (SANDAG) at p. 515.)12 The state’s climate change goals
extend beyond 2030. (See, e.g., Executive Order S-03-05 [established a
statewide target of reducing GHG emissions to 80 percent below 1990

Document received by the CA 4th District Court of Appeal Division 2.

levels by 2050].) Because the Project is expected to operate for decades
into the future, Respondents must account for emissions beyond 2030. But
Respondents fail to account for emissions beyond that point—despite the
fact that the Project’s full operation will not start until five years later, in
2035. (EIR at p. 4.3-61.) Respondents present no substantial evidence that
any of the Project’s post-buildout operational emissions are mitigated by
the Cap-and-Trade Program. (See, e.g., EIR, pp. 4.7-36–37 [stating,
without citation, that “[s]ome of the project’s GHG emissions are subject to
the requirements of the AB 32 Cap and Trade Program and will have a
GHG allocation based on current GHG emissions levels”].) This is not an
adequate CEQA analysis. (See Oakland Heritage Alliance v. City of
Oakland (2011) 195 Cal.App.4th 884, 904 [EIR must contain substantial
evidence that mitigation measures will reduce associated impacts to less-

12
The parties in AIR v. Kern did not have the opportunity to brief
the significance of SANDAG because the California Supreme Court filed its
opinion in SANDAG over a month after the close of briefing in AIR v. Kern.
It appears to amici that this is the first case at the California Court of
Appeal where parties have had the opportunity to address both SANDAG
and AIR v. Kern in their briefs.

29
than-significant-levels, such as by requiring compliance with applicable
regulatory standards and preparation of site-specific studies]; Cal. Code
Regs. tit. 14, § 15370, subd. (d) [“mitigation” includes “[r]educing or
eliminating the impact over time by preservation and maintenance
operations during the life of the action”].)
D. Reliance on AIR v. Kern County is improper.

Respondents incorrectly claim the Fifth Appellate District’s decision

in Association of Irritated Residents v. Kern County Bd. of Supervisors
(2017) 17 Cal.App.5th 708 (AIR) upheld the use of the same GHG
methodology as Respondents attempt to use here. (Combined
Respondents’ and Cross-Appellants’ Opening Brief at p. 53.) Respondents’

Document received by the CA 4th District Court of Appeal Division 2.

use of the Cap-and-Trade Program here goes far beyond what was
sanctioned in AIR. In AIR, the project being evaluated under CEQA was a
refinery, a covered entity under Cap-and-Trade. The court held a lead
agency was authorized “to determine that a project’s greenhouse gas
emissions will have a less than significant effect on the environment based
on the project’s compliance with the cap-and-trade program.” (Id. at p.
718; italics added.) Regardless of whether or not AIR was rightly decided,
here, the question is much simpler and different from the question before
the court in AIR. Here, it is undisputed that the Project is not a covered
entity required to comply with the Cap-and-Trade Program. (Cal. Code
Regs., tit. 17, § 95811.) Accordingly, this Court need only decide if
projects that are not covered entities under Cap-and-Trade are nonetheless
allowed to use the program to ignore significant GHG emissions they
cause. The answer to that question is no.
Respondents argue the distinction between covered and non-covered
entities is “a distinction without a difference.” (Combined Respondents’
and Cross-Appellants’ Opening Brief at p. 63.) Respondents are incorrect.

30
This distinction is crucial under CEQA and vital to the success of
California’s ambitious climate policies.
From a CEQA perspective, the distinction is important because
CEQA Guidelines section 15064.4, subdivision (b)(3) instructs lead
agencies to consider the extent to which a project complies with GHG
regulations or requirements. It is thus inappropriate for entities
downstream in the chain of commerce from a covered entity to rely upon
compliance with the Cap-and-Trade Program as a basis for avoiding
analysis of project-related emissions.
From a policy perspective, as described above, the distinction is
crucial because projects that are not subject to the Cap-and-Trade Program

Document received by the CA 4th District Court of Appeal Division 2.

do not have the same direct incentives to reduce their GHG emissions as
covered facilities, and Cap-and-Trade alone is not designed to achieve
California’s ambitious climate goals. The distinction between covered and
not-covered entities is thus crucial to the portfolio of climate change
measures the state is relying on to protect our citizens going forward.
E. Respondents’ GHG analysis obfuscates the climate
change impacts of this Project, undermining CEQA’s
public disclosure purpose.

By failing to comply with CEQA Guidelines Section 15064.4, failing

to compare all of the Project’s emissions to the GHG emissions threshold,
and failing to consider the long-term GHG impacts of the Project,
Respondents’ analysis undermines the informational purpose of
CEQA. The purpose of an EIR “is to inform the public generally of the
environmental impact of a proposed project.” (Cal. Code Regs. tit. 14, §
15003, subd. (c).)
CEQA prohibits public agencies from approving or carrying out a
project that will have significant effects on the environment unless the
agency makes “findings” demonstrating either that it made changes to the

31
project to avoid or mitigate those significant impacts, or that certain
overriding considerations outweigh the impact. (Pub. Resources Code, §
21081.) Without a full and accurate disclosure of the Project’s impacts,
Respondents erroneously concluded that the GHG impact would be less-
than-significant, and thereby avoided making the subsequent findings that
would inform the public whether the Project’s significant impacts are
unavoidable and/or justified. Additionally, Respondents’ approach hinders
the public’s ability to submit informed comments during the EIR’s public
comment period—aside from addressing the lack of analysis—because the
public is not provided with, and thus cannot evaluate, complete information
or proper CEQA analysis.

Document received by the CA 4th District Court of Appeal Division 2.

CONCLUSION

California is striving on all fronts to meet its ambitious, long-term

GHG reduction objectives; the health of its citizens and the environment
depend on it. But this Court’s approval of Respondents’ approach to GHG
analysis and mitigation would treat the Cap-and-Trade Program as the sole
remedy to limit GHG emissions from land-use projects, placing
unnecessary strain on Cap-and-Trade’s cost-effectiveness and seriously
undermining the state’s critical climate change efforts. Amici respectfully
request this Court reject the trial court’s holding and find in favor of
Appellants as to GHG analysis.

32
Dated: January 10, 2020 Respectfully submitted,

XAVIER BECERRA
Attorney General of California
ROBERT W. BYRNE
Senior Assistant Attorney General
EDWARD H. OCHOA
Acting Senior Assistant Attorney General
ANNADEL ALMENDRAS
RANDY BARROW
SARAH E. MORRISON
Supervising Deputy Attorneys General

/s/ Gwynne B. Hunter

Document received by the CA 4th District Court of Appeal Division 2.

*GWYNNE B. HUNTER
MICHAEL S. DORSI
HEATHER C. LESLIE
Deputy Attorneys General
Attorneys for Xavier Becerra, Attorney
General and the California Air
Resources Board

33
 CERTIFICATE OF COMPLIANCE

I certify that the attached Brief of Amici Curiae the Attorney General
and the California Air Resources Board in Support of Plaintiffs and
Respondents Albert Thomas Paulek, et al. and Plaintiffs and Appellants
Laborers International Union of North America, Local 1184, et al. uses a
13 point Times New Roman font and contains 7,647 words.

Dated: January 10, 2020 XAVIER BECERRA

Attorney General of California

/s/ Gwynne B. Hunter

Document received by the CA 4th District Court of Appeal Division 2.

*GWYNNE B. HUNTER
MICHAEL S. DORSI
HEATHER C. LESLIE
Deputy Attorneys General
Attorneys for Xavier Becerra, Attorney
General and the California Air
Resources Board

34
 DECLARATION OF ELECTRONIC SERVICE VIA TRUEFILING

Case Name: PAULEK, ET AL., V. MORENO VALLEY COMMUNITY SERVICES

DISTRICT, ET AL., California Court of Appeal, Fourth Appellate District,
(Amicus Brief)
No.: E071184

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of the
California State Bar, at which member's direction this service is made. I am 18 years of age or
older and not a party to this matter. I am familiar with the business practice at the Office of the
Attorney General. Correspondence that is submitted electronically is transmitted using the
TrueFiling electronic filing system. Participants who are registered with TrueFiling will be
served electronically.

On January 10, 2020, I electronically served the attached:

Document received by the CA 4th District Court of Appeal Division 2.

BRIEF OF AMICI CURIAE THE ATTORNEY GENERAL AND
THE CALIFORNIA AIR RESOURCES BOARD IN SUPPORT OF
PLAINTIFFS AND RESPONDENTS ALBERT THOMAS PAULEK,
ET AL. AND PLAINTIFFS AND APPELLANTS LABORERS
INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1184,
ET AL.

by transmitting a true copy via this Court’s TrueFiling system to the parties as follows:

SEE ATTACHED SERVICE LIST

I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on January 10, 2020, at Sacramento,
California.

PAULA CORRAL /s/ Paula Corral

Declarant Signature
SA2019105249
 SERVICE LIST

TRUEFILING SERVICE LIST

Attorneys for Respondents Attorneys for Real Parties

City of Moreno Valley and in Interest and Defendants
Moreno Valley Community HF Properties, Sunnymead
Services District: Properties, Theodore
Properties Partners, 13451
Martin D. Koczanowicz Theodore, LLC and HL
Office of the City Attorney Property Partners:
14177 Frederick Street
Moreno Valley, CA 92552 Kenneth B. Bley

Document received by the CA 4th District Court of Appeal Division 2.

E-mail: [email protected] Cox, Castle & Nicholson LLP
2029 Century Park E., Suite
2100
Los Angeles, CA 90067
E-mail: [email protected]
Attorneys for Attorneys for
Petitioner/Plaintiff Socal Petitioner/Plaintiff Albert
Environmental Justice Thomas Paulek; Friends of
Alliance: the Northern San Jacinto
Valley:
Craig M. Collins, Esq.
Gary Ho, Esq. Susan Nash, Esq.
Blum Collins, LLP Law Offices of Susan Nash
707 Wilshire Blvd., Ste. 4880 P.O. Box 4036
Los Angeles, CA 90017 Idyllwild, CA 92549
E-mail: E-mail: [email protected]
[email protected]
[email protected]
Attorneys for Attorneys for Petitioner
Petitioner/Plaintiff South Coast Air Quality
Residents for a Livable Management District:
Moreno Valley:
Kurt R. Wiese, General Counsel
Abigail A. Smith, Esq. Barbara Baird, Chief Dep.
Law Offices of Abigail Smith Counsel
1466 Frazee Road, Ste. 500 Veera Tyagi, Senior Dep.
San Diego, CA 92108 General Counsel
E-mail: [email protected] South Coast Air Quality
Management District
21865 Copley Drive
Diamond Bar, CA 91765

Document received by the CA 4th District Court of Appeal Division 2.

E-mail: [email protected]
[email protected]
[email protected]
Attorneys for Attorneys for Plaintiff,
Petitioners/Plaintiffs Center Appellant and Cross-
for Community Action and Respondent Laborers’
Environmental Justice, International Union North
Center for Biological America Local 1184:
Diversity, Coalition for
Clean Air, Sierra Club, San Richard T. Drury
Bernardino Valley Audubon Brian Flynn
Society: Lozeau Drury LLP
1939 Harrison St., #150
Adriano L. Martinez, Esq. Oakland, CA 94612
Oscar Espino-Padron, Esq. E-mail:
Earthjustice [email protected]
707 Wilshire Blvd., Ste. 4300 [email protected]
Los Angeles, CA 90017
E-mail:
[email protected]
oespino-
[email protected]