Sierra Club et al v. Tahoe Regional Planning Agency

Filing 56

ORDER signed by Judge John A. Mendez on 4/4/14. The Court DENIES Plaintiffs' Motion for Summary Judgment and GRANTS Defendant's Cross-Motion for Summary Judgment. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SIERRA CLUB and FRIENDS OF
THE WEST SHORE,

No.

2:13-cv-00267 JAM EFB

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Plaintiffs,
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v.
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TAHOE REGIONAL PLANNING
AGENCY,

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ORDER DENYING PLAINTIFFS’ MOTION
FOR SUMMARY JUDGMENT AND
GRANTING DEFENDANT’S CROSSMOTION FOR SUMMARY JUDGMENT

Defendant.

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This matter is before the Court on Plaintiffs Sierra Club

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and Friends of the West Shore’s (collectively “Plaintiffs”)

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Motion for Summary Judgment (Doc. #25) and Defendant Tahoe

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Regional Planning Agency’s (“TRPA”) (“Defendant”) Cross Motion

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for Summary Judgment and Opposition (Doc. #36).

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opposed Defendant’s cross motion (Doc. #41) and Defendant replied

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(Doc. #45).

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Court on March 26, 2014.

Plaintiffs

Oral argument on these motions was held before the

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I.

UNDISPUTED FACTUAL AND PROCEDURAL BACKGROUND

In 1968, California and Nevada entered into the Tahoe
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Regional Planning Compact (the “Compact”) to protect the Lake

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Tahoe Area Basin (“LTAB”).

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Statement of Undisputed Facts (“DRUDF”) (Doc. #36-3) ¶ 18.

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Compact created the Tahoe Regional Planning Agency (“TRPA” or

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“Defendant”) to serve as the land use and environmental resource

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planning agency for the region.

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California extensively amended the 1969 Compact.

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The amended Compact requires TRPA to develop environmental

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threshold carrying capacities, and to ensure that all planning

Defendant’s Response to Plaintiffs’

DRUDF ¶ 18.

The

In 1980, Nevada and
DRUDF ¶ 19.

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and development in the LTAB region is consistent with achieving

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and maintaining these thresholds.

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“an environmental standard necessary to maintain a significant

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scenic, recreational, educational, scientific, or natural value

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of the region or to maintain public health and safety within the

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region.”

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Regional Plan, which has guided all land-use planning and

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development within the LTAB region.

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Defendant’s Statement of Undisputed Facts (“PRUDF”) (Doc. #41-1)

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¶ 26.

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the 1987 Regional Plan, was adopted in May 1987.

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Compact, Art. II(i).

DRUDF ¶ 20.

A “threshold” is

In 1987, TRPA enacted the

Plaintiffs’ Response to

The TRPA Code of Ordinances (“Code”), which implemented

Under the Code, TRPA may not amend the Regional Plan unless

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it finds that the Plan, “as amended, achieves and maintains the

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thresholds.”

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requires TRPA to prepare and consider a detailed Environmental

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Impact Statement (“EIS”) before approving or carrying out any

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project that may have significant effect on the environment.

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Compact, Art. VII(a)(2).

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significant environmental impacts, any significant adverse

Code § 4.5, at AR668.

Article VII of the Compact

The EIS must include the project’s

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environmental effects that cannot be avoided if the project is

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implemented, alternatives to the project, and mitigation measures

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that “must be implemented to assure meeting standards of the

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region.”

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Compact, Art. VII(a)(2).

On December 12, 2012, TRPA certified the Final EIS for the

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Regional Plan Update (“RPU”) and approved the RPU.

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Key components of the RPU include TRPA’s adoption of a Regional

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Transportation Plan and the incorporation of Lake Tahoe’s Total

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Maximum Daily Load (“TMDL”).

PRUDF ¶ 2.

PRUDF ¶ 1.

The TMDL is “a water

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quality restoration plan” that “quantifies the source and amount

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of fine sediment and nutrient loading from various land-uses and

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outlines an implementation plan to achieve . . . existing water

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quality standards.”

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characterize the RPU differently.

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RPU’s “central strategy . . . is to loosen development

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restrictions and incentivize redevelopment in urban core areas,

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while removing existing development in sensitive outlying areas,

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on the theory that this would enable more environmentally

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sensible development and land-use overall.”

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Statement of Undisputed Facts (“PSUF”) (Doc. #25-2) ¶ 33.

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Defendant contends that the RPU “achieves Threshold Standards by

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incorporating contemporary planning principles, current science,

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and . . . focusing on redevelopment incentives to convert

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substandard legacy development into modern, environmentally

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beneficial, visually attractive, walkable, bikeable communities.”

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Def.’s Cross-Mot. at 5.

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based regulatory approach,” rather than the 1987 Plan’s focus on

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limiting “impervious surface coverage.”

PRUDF ¶ 52.

Plaintiffs and Defendant
Plaintiffs contend that the

Plaintiffs’

Defendant emphasizes “TMDL’s science-

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Id.

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On February 11, 2013, Plaintiffs filed their Complaint (Doc.

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#1) in this Court.

The Complaint includes the following causes

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of action: (1) “Delegation of TRPA’s project approval and review

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duties in violation of the Compact;” (2) “Failure of Regional

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Plan to establish and ensure compliance with minimum regional

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standards;” (3) “Failure to properly make threshold findings

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pursuant to the Compact and Code sections 4.5 and 4.6;” and (4)

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“Failure to adequately analyze significant impacts in violation

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of the Compact.”

In a June 14, 2013 Order (Doc. #18), the Court

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dismissed Plaintiffs’ state law claims with prejudice and

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dismissed Plaintiffs’ first cause of action without prejudice, on

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ripeness grounds.

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II.

LEGAL STANDARDS

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A.

Standard of Review

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Under the Compact, the standard of review for legislative

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actions is “whether the act or decision has been arbitrary,

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capricious, or lacking substantial evidentiary support or whether

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the agency has failed to proceed in a manner required by law.”

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Compact, Art. VI(j)(5).

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review of agency action under the Administrative Procedure Act

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(“APA”).

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Agency, 739 F. Supp. 2d 1260, 1267 (E.D. Cal. 2010) aff'd in

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part, vacated in part, remanded, 469 F. App'x 621 (9th Cir.

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2012).

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Review under the Compact largely mirrors

League to Save Lake Tahoe v. Tahoe Reg'l Planning

Under the APA, an agency decision will be set aside only if

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it is “arbitrary, capricious, an abuse of discretion, or

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otherwise not in accordance with law.”
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5 U.S.C. § 706(s)(A).

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“Review under the arbitrary and capricious standard is narrow,

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and the reviewing court may not substitute its judgment for that

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of the agency.”

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F.3d 1147, 1156 (9th Cir. 2006).

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a decision as arbitrary and capricious only if the agency relied

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on factors Congress did not intend it to consider, has entirely

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failed to consider an important aspect of the problem, or offered

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an explanation ‘that runs counter to the evidence before the

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agency or is so implausible that it could not be ascribed to a

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Earth Island Inst. v. U.S. Forest Serv., 442
Rather, the Court “will reverse

difference in view or the product of agency expertise.’”

Id.

The National Environmental Policy Act (“NEPA”) does not

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directly apply to TRPA.

See Glenbrook Homeowners Ass'n v. Tahoe

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Reg'l Planning Agency, 425 F.3d 611, 615 (9th Cir. 2005)

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(explaining that NEPA regulations do not apply to the Compact).

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However, cases interpreting NEPA may “inform interpretation of

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the Compact . . . where those cases rest on language analogous to

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that used in the Compact.”

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F.Supp.2d at 1274.

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Environmental Quality Act (“CEQA”) may provide persuasive

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authority.

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(noting that “like CEQA and NEPA, the Compact serves to inform

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the public and to protect the environment in a general sense”).

League to Save Lake Tahoe, 739

Similarly, cases interpreting the California

See League to Save Lake Tahoe, 739 F.Supp.2d at 1276

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B.

Disposition at the Summary Judgment Stage

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Rule 56(a) of the Federal Rules of Civil Procedure (“FRCP”)

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provides that “a court shall grant summary judgment if the movant

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shows there is no genuine issue of material fact and that the

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movant is entitled to judgment as a matter of law.”

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issue is “genuine” when the evidence is such that a reasonable
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A factual

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jury could return a verdict for the non-moving party.

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v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).

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Villiarmo

In this case, each party submitted its own statement of

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undisputed facts as well as a response to the opposing party’s

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statement of undisputed facts.

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disposition at the summary judgment stage is appropriate, given

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that this is an administrative record case.

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on which legal conclusions should be drawn from the

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administrative record, but do not dispute the administrative

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record itself.

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However, both parties agree that

The parties disagree

stage is appropriate.

Therefore, disposition at the summary judgment

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C.

Judicial Notice

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Plaintiffs request judicial notice of several documents

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related to the Douglas County South Shore Area Plan, all of which

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post-date the approval of the RPU.

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concerns whether TRPA’s decision to approve the RPU was supported

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by the administrative record, the post-dated documents are not

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relevant.

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Agency, 739 F. Supp. 2d 1260, 1264 n.1 (E.D. Cal. 2010) aff'd in

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part, vacated in part, remanded, 469 F. App'x 621 (9th Cir. 2012)

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(declining to take judicial notice of post-dated documents in an

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administrative record case); see also, Rybachek v. U.S. Envtl.

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Prot. Agency, 904 F.2d 1276, 1296 (9th Cir.1990) (noting that it

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is not “appropriate . . . to use post-decision information as a

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new rationalization either for sustaining or attacking the

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Agency's decision”).

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judicial notice of all post-dated documents relating to the

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Douglas County South Shore Area Plan are denied.

(Doc. #26, 40).

As this case

League to Save Lake Tahoe v. Tahoe Reg'l Planning

Accordingly, Plaintiffs’ requests for

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Plaintiffs also request judicial notice of the California

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Air Resources Board’s (“CARB”) 2011 “Amendments to the Area

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Designations for State Ambient Air Quality Standards.”

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#26).

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redesignation of the Tahoe Basin as ‘nonattainment transitional’

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for ozone pollution.”

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(Doc. #42).

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administrative record case, review of extra-record materials is

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only appropriate if “necessary to explain agency decisions.”

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Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d

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1443, 1450 (9th Cir. 1996).

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Draft EIS “specifically references” CARB’s designation of the

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region as “nonattainment transitional.”

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information in the proffered document “can be extracted from the

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record,” judicial notice is not necessary.

Sw. Ctr. for

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Biological Diversity, 100 F.3d at 1450-51.

Accordingly,

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Plaintiffs’ request for judicial notice of the CARB document is

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denied.

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(Doc.

Plaintiffs note that this document demonstrates “CARB’s

Pls.’ Reply to Def.’s Opp. to RJN at 3

The Ninth Circuit has held that, in an

Sw.

As acknowledged by Plaintiffs, the

AR11759.

As the

The Nevada Department of Conservation and Natural Resources

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(one of the amici) also requests that the Court take judicial

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notice of a December 19th, 2013 Proclamation by the Nevada

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Governor.

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of the RPU, the request for judicial notice is denied for the

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reasons discussed above.

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F.Supp.2d at 1264 n.1 (declining to take judicial notice of post-

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dated documents in an administrative record case).

(Doc. #47).

As this document post-dates the approval

League to Save Lake Tahoe, 739

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III.

OPINION

The parties raise four basic issues in their respective

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motions for summary judgment, which focus on TMDL and

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concentrated coverage, soil conservation, BMPs, and the ozone

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threshold.

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of Defendant on all four issues as explained below.

Each is discussed in turn. The Court finds in favor

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A.

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Plaintiffs argue that TRPA’s failure to analyze the impacts

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TMDL and Concentrated Coverage

of concentrating impervious coverage was arbitrary and

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capricious.

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shift to the TMDL model was supported by substantial evidence and

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is entitled to deference.

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Pls.’ Mot. at 7.

Defendant argues that the RPU’s

Def.’s Cross-Mot. at 8.

The RPU emphasizes the TMDL model, and moves away from the

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“Bailey” model, which was implemented by the 1987 Regional Plan.

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PRUDF ¶ 2.

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limiting impervious surface coverage (i.e., concrete, asphalt,

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etc.) in the Lake Tahoe region.

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approach imposes strict limits on the percentage of area coverage

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allowed on nine different soil types, depending on their

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“capability” rating.

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reduce the total flow of pollutants into Lake Tahoe, and rejects

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the Bailey model’s strict limits on impervious surface coverage.

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PRUDF ¶ 52.

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The Bailey model, named after its author, focuses on

Id.

Pls.’ Mot. at 8.

The Bailey

In contrast, the TMDL model aims to

Plaintiffs first argue that TRPA’s failure to conduct a

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watershed-level analysis on the effect of geologically-

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concentrated coverage was arbitrary and capricious.

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at 9.

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administrative record that concentrating coverage in single

Pls.’ Mot.

Plaintiffs contend that substantial evidence exists in the

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watershed areas is environmentally harmful, even if region-wide

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total coverage does not increase.

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argue that a watershed-level analysis of concentrated coverage

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was feasible and that TRPA’s decision to conduct only a region-

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wide study was unreasonable.

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responds that watershed-level analyses were not feasible, and

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that it created and studied a Center-level model in response to

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Plaintiffs’ concerns.

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maintains that it is entitled to substantial deference in

Pls.’ Mot. at 11.

Pls.’ Mot. at 12.

Plaintiffs

Def.’s Cross-Mot. at 9.

Defendant

Defendant also

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choosing the methodology for its environmental studies.

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Cross-Mot. at 10.

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Def.’s

The Court must be “at its most deferential” when reviewing

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“scientific judgments and technical analyses within the agency's

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expertise.”

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1051 (9th Cir. 2012).

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an EIS is based on the best scientific methodology.”

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Survival v. Surface Transp. Bd., 705 F.3d 1073, 1088 (9th Cir.

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2013).

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in reviewing TRPA’s scientific methodology, including the scope

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and scale of its studies.

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1051.

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Native Ecosystems Council v. Weldon, 697 F.3d 1043,
The Court is “not . . . to decide whether
Alaska

Accordingly, the Court must be “at its most deferential”

Native Ecosystems Council, 697 F.3d at

TRPA’s decision to use the TMDL model rather than the Bailey

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model was an exercise of its scientific expertise.

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Plaintiffs may prefer the Bailey model of coverage-based

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limitations, Defendant’s choice of the TMDL model is supported by

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substantial evidence in the administrative record and addresses

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Plaintiffs’ concerns over concentrated coverage.

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(Tahoe Basin Impervious Coverage Study’s finding that
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Although

See AR128193

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“concentrating development and limiting the development footprint

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has the potential to reduce . . . environmental impact”).

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Moreover, the Final EIS included a lengthy explanation of why

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watershed-level analyses were neither feasible nor necessary.

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AR5089-96.

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TMDL model, and an agency is not required to address “every

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possible scientific uncertainty.”

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v. Surface Transp. Bd., 668 F.3d 1067, 1085 (9th Cir. 2011).

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response to public comments by Plaintiffs, the Final EIS included

TRPA conducted extensive scientific studies under the

N. Plains Res. Council, Inc.
In

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a Pollutant Load Reduction Model (“PLRM”) which “provided

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estimates of existing and future pollutant loading from areas

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designated as “Centers” in the RPU.

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on the exact scale requested by Plaintiffs, the PLRM simulation

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represents an effort by TRPA to address Plaintiffs’ concerns

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about localized concentration of coverage.

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For these reasons, the cases cited by Plaintiffs, in which

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agencies conducted little or no environmental review, are not

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applicable.

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668 F.3d at 1079 and Kern v. U.S. Bureau of Land Mgmt., 284 F.3d

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1062 (9th Cir. 2002)).

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PRUDF ¶ 142.

Although not

AR5103 (Final EIS).

Pls.’ Mot. at 9, 13 (citing N. Plains Res. Council,

Furthermore, the region-wide scale of the TMDL model is

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consistent with the regional scale of the RPU itself.

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degree of specificity required in an [Environmental Impact

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Report] will correspond to the degree of specificity involved in

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the underlying activity which is described in the EIR.”

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Club v. Tahoe Reg'l Planning Agency, 916 F. Supp. 2d 1098, 1154

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(E.D. Cal. 2013); see also, State of Cal. v. Block, 690 F.2d 753,

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761 (9th Cir. 1982) (noting that the degree of detail required
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“The

Sierra

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“in an EIS depends upon the nature and scope of the proposed

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action”).

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temporarily defer a site-level analysis was reasonable.

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of Yosemite Valley v. Norton, 348 F.3d 789, 800 (9th Cir. 2003)

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(an EIS for a program-wide plan must provide “sufficient detail

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to foster informed decision-making,” but “site-specific impacts

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need not be fully evaluated” until site-level projects are

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proposed).

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require additional environmental analysis, including evaluation

As the RPU is a region-wide plan, TRPA’s decision to
Friends

Under the RPU, “smaller-scale planning efforts would

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of coverage at a more localized scale.”

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Such local-level analyses would occur “in response to proposals

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for implementing programs or specific development or public works

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projects.”

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AR5090 (Final EIS).

AR11550 (Draft EIS).

Plaintiffs’ reliance on TRPA’s prior practices, which

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acknowledged the potential harm of concentrating coverage, is

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unpersuasive.

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1988 and 1989 Water Quality Management Plans “recognize[e] the

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potential harm that can be caused by concentrating coverage” and

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emphasize the importance of preventing “any given . . .

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geographic subregion from absorbing a disproportionate amount of

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. . . land coverage.”

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AR141391).

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years old and were written prior to “the advent of the TMDL.”

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Def.’s Cross-Mot. at 11.

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Pls.’ Mot. at 11.

Plaintiffs note that TRPA’s

Pls.’ Mot. at 11 (citing AR2070 and

However, as Defendant notes, these documents are 25

Plaintiffs’ argument that “TMDL compliance is not mandatory

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in Nevada” is misguided.

Pls.’ Reply at 6.

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Water Act (“CWA”) requires that Nevada “have a continuing

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planning process” to meet its obligations under the TMDL model.
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The federal Clean

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33 U.S.C. § 1313(e).

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obligations, the Environmental Protection Agency is authorized by

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the CWA to establish, and enforce, its own TMDL standard in

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Nevada.

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2013 WL 6513826, at *2 (D.D.C. Dec. 13, 2013).

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Nevada’s reliance on non-binding Memoranda of Agreement to

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implement the TMDL does not affect its statutory obligations

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under the CWA, and does not call into question the RPU’s reliance

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on the TMDL.

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B.

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A second argument put forth by Plaintiffs is that the EIS

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“failed to examine the cumulative impacts to soil conservation

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resulting from increased development and concentrated coverage in

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centers.”

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contention raises a procedural defense that Plaintiffs failed to

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raise a “soil conservation argument” in their opening brief, and

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are, therefore, prohibited from raising it for the first time in

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their reply brief.

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the claim quoted above, Plaintiffs’ opening brief contains an

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extensive discussion on TRPA’s responsibility to meet the “soil

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conservation threshold,” which protects “soil and ecological

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balance.”

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Plaintiffs failed to exhaust their administrative remedies, as

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the argument was never raised during the administrative process.

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Def.’s Reply at 2.

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in response to the Draft EIS expressing concern that failure to

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adhere to soil conservation thresholds could disrupt the

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“ecological balance” of the LTAB region and result in “vegetative

If Nevada fails to meet its TMDL

Food & Water Watch v. United States Envtl. Prot. Agency,
Accordingly,

Soil Conservation

Pls.’ Mot. at 7.

Defendant’s initial response to this

Def.’s Reply at 2.

Pls.’ Mot. at 8.

However, in addition to

Similarly, Defendant argues that

However, Plaintiffs submitted public comments

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disturbance” and “ecologic damage.”

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Accordingly, Plaintiffs are not procedurally barred from raising

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this argument.

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AR4473 (Final EIS).

Nonetheless, Plaintiffs’ contention that the EIS failed to

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address soil conservation concerns is not supported by the

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record.

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improvements in “soil conditions” as well as “habitat for

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vegetation and wildlife.”

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concluded that the RPU would not have a significant effect on

The Draft EIS concluded that the RPU would result in

AR12038.

Similarly, the Draft EIS

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native vegetation growth, noting that “common plant . . . species

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are relatively abundant locally and regionally and are not

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considered limited by the availability of habitat” in the LTAB

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region.

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related impact is not as thorough as that of water-quality

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impact, this is consistent with the fact that the vast majority

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of comments, throughout the administrative process, focused on

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RPU’s potential impact on water-quality.

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the RPU would not have a significant effect on LTAB soil

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conditions is supported by the record.

AR12050.

Although TRPA’s discussion of the RPU’s soil-

TRPA’s conclusion that

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To the extent that Plaintiffs’ soil conservation argument

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depends on TRPA’s failure to study the effects of concentrated

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coverage on a watershed-level scale, this argument fails for the

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reasons discussed above.

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to substantial deference in selecting the methodology and scale

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of its environmental studies.

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Weldon, 697 F.3d 1043, 1051 (9th Cir. 2012).

Supra at II(D)(1)(b).

TRPA is entitled

Native Ecosystems Council v.

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C.

BMPs

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Plaintiffs contend that TRPA’s conclusion that the RPU will
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not significantly affect water quality is arbitrary and

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capricious due to its reliance on BMPs.

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Plaintiffs note the historical lack of success in BMP

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implementation and maintenance.

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RPU includes a number of provisions that will result in

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widespread implementation of new BMPs and more effective

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maintenance of existing BMPs.

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9

Id.

Pls.’ Mot. at 15.

Defendant responds that the

Def.’s Cross-Mot. at 13.

BMPs, or “best management practices,” are defined as
“alternative structural and non-structural practices proven

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effective in erosion control and management of surface runoff.”

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PRSUF ¶ 159.

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and (2) BMPs for new development or redevelopment.

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The BMP Retrofit Program is a “nonpoint source pollution control

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program” which is codified in the TRPA Code of Ordinances and

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requires all existing past development to retrofit the site with

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water-quality BMPs.

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development must install and maintain BMPs as a condition of

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project approval.

19

the RPU identifies BMPs as one of several key strategies to

20

attain pollutant load reduction goals.

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There are two categories of BMPs: (1) BMP Retrofits

PRSUF ¶ 162.

PRSUF ¶ 163.

PRSUF ¶ 163.

Under the RPU, any new

The TMDL approach proposed by

PRSUF ¶173.

According to Plaintiffs, the RPU’s reliance on BMPs is not

22

warranted given the “history of neglected BMP maintenance.”

23

Pls.’ Mot. at 20.

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overlooks the distinction between BMP Retrofits and BMPs for new

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development.

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redevelopment must install and maintain BMPs as a condition of

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project approval.

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undisputed that the RPU will increase the installation of BMPs.

However, Plaintiffs’ emphasis on maintenance

It is undisputed that, under the RPU, any new or

PRSUF ¶ 163.

Moreover, it is further

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PRSUF ¶ 184.

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installation of BMPs at the onset of a development project could

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dramatically reduce pollutant loads.

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significant difference in runoff and fine sediment particle

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loading between building units with BMPs and those without BMPs).

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Once installed, many BMPs – such as retaining walls, terracing,

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and water spreading BMPs – can remain effective without regular

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maintenance.

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Ample evidence exists in the record that the mere

AR128167-68 (data showing

AR127031, 127024, 126991.

Plaintiffs’ reliance on the past failures of BMPs also

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overlooks the RPU’s inclusion of programs designed to incentivize

11

and improve the maintenance of BMPs.

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model, credits to an urban jurisdiction for implementing BMPs may

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not be awarded “without evidence that expected conditions are

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being maintained.”

AR107727 (2011-09 TMDL Lake Clarity Crediting

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Program Handbook).

Likewise, the RPU will “encourage the use of

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area-wide [water] treatment facilities” which are expected to

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result in “more efficient maintenance practices relative to

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conducting maintenance activities on many smaller and widely

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distributed individual parcels and sites.”

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EIS).

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areas that achieve the greatest load reduction,” which would

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accelerate improvements in water quality in a more cost-effective

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manner.

24

For example, under the TMDL

AR5189-90 (Final

Moreover, the RPU would “prioritize BMP Implementation in

AR26253.

Under the TRPA Code of Ordinances, BMP maintenance is

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mandatory.

AR1089 (Code § 60.4.9).

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inspection and maintenance plan will be required” for any new

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project that is granted a permit.

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was entitled to conclude that its mandatory, incentivized BMP
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Under the RPU, “a BMP

AR126934 (BMP Handbook).

TRPA

1

ordinance would be largely followed.

2

In Planning v. City Council, 200 Cal.App.3d 671, 680 (1988)

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(noting that the creator of an EIR “is not obliged to speculate

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about effects which might result from violations of its own

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ordinances”).

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use of BMPs to address potential environmental impacts.

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Hapner v. Tidwell, 621 F.3d 1239, 1246 (9th Cir. 2010) (citing

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agency’s use of BMPs to minimize soil disturbance during logging

9

operations); Envtl. Prot. Info. Ctr. v. U.S. Forest Serv., 451

See Towards Responsibility

The Ninth Circuit has repeatedly upheld agencies’
See

10

F.3d 1005, 1015 (9th Cir. 2006) (holding that the implementation

11

of “specific and detailed” BMPs supported the agency’s finding

12

that the project’s effect on wildlife and watershed would not be

13

significant).

14

the grounds that they did not involve “evidence of past history

15

of noncompliance,” is unsuccessful.

16

discussed above, TRPA expressly acknowledged past failures in

17

maintenance, and incorporated that experience into updated BMP

18

guidelines.

Plaintiffs’ attempt to distinguish these cases, on

Pls.’ Reply at 3.

As

19

D.

Ozone Threshold

20

Plaintiffs’ final contention in support of their motion

21

herein is that TRPA’s conclusion that the RPU will attain and

22

maintain the ozone threshold, as required by the Compact, is

23

arbitrary, capricious and lacking substantial evidentiary

24

support.

25

conclusion that the RPU will attain and maintain the ozone

26

threshold is supported by substantial evidence.

27

Mot. at 19.

28

Pls.’ Mot. at 21.

Defendant responds that its

Def.’s Cross-

Ozone is a pollutant that forms when precursor gases react
16

1

in sunlight.

2

and Nevada have all adopted ozone standards.

3

the Compact, TRPA is required to “provide for attaining and

4

maintaining” the most stringent of these standards.

5

Art. V(d).

6

RPU, will achieve and maintain the ozone threshold.

7

In evaluating air quality in the LTAB region, TRPA relies on four

8

data sets called “Threshold Indicators.”

9

EIS concluded that each of these four Threshold Indicators was

PRSUF ¶ 190.

The federal government, California,
PRSUF ¶ 190.

Under

Compact,

TRPA found that the Regional Plan, as amended by the
PRSUF ¶ 216.

PRSUF ¶ 194.

The Final

10

“in attainment” with the most stringent applicable state or

11

federal standard.

12

AR5238.

Plaintiffs object to TRPA’s finding with regard to one of

13

these Threshold Indicators: the highest 8-hour average

14

concentration of ozone.

15

the Draft EIS designated the LTAB region as “nonattainment-

16

transitional” with regard to the “8-hour average,” and concluded

17

that progress toward meeting the California standard is “somewhat

18

worse than target.”

19

subsequent 2011 Threshold Evaluation Report (“TER”) concluded

20

that the region was “currently in attainment” with the “8-hour

21

average” threshold.

22

came “with no explanation.”

23

Pls.’ Mot. at 21.

AR11759 (Draft EIS).

Plaintiffs note that

AR97.

However, the

Plaintiffs contend that this reversal
Pls.’ Mot. at 23.

In fact, the shift from “nonattainment-transitional” to

24

“currently in attainment” is explained by the incorporation of

25

additional data into the 2011 TER – data that was unavailable at

26

the time that TRPA published the Draft EIS.

27

showed that, in 2010 and 2011, maximum 8-hour average ozone

28

concentration had been measured at a level below the California
17

AR97.

This new data

1

limit.

2

confidence, that the LTAB region was in attainment with the “8-

3

hour average” ozone Threshold Indicator.

4

Id.

Accordingly, the Board concluded, with “moderate”

AR5238 (Final EIS).

Plaintiffs argue that the new data should not have been

5

incorporated into the 2011 TER because it was obtained from a

6

monitoring station located in Nevada, rather than California.

7

Pls.’ Mot. at 23.

8

shown that ozone concentrations can vary significantly around the

9

region” and, in support of this proposition, cite a table of raw

Plaintiffs state that “past monitoring has

10

data, showing ozone measurements at different locations.

11

Mot. at 24 (citing AR147415).

12

“little variation” is seen between the California and Nevada

13

monitoring sites, and that “[b]oth stations showed similar

14

concentrations and number of exceedance days during 2008-2010.”

15

AR3566 (Final EIS).

16

advanced statistical analysis, and, therefore, the Court defers

17

to TRPA’s judgment that variability between sites is low enough

18

to use Nevada data in the 2011 TER and the Final EIS.

19

deference is particularly appropriate where the determination

20

“requires a high level of technical expertise.”

21

Natural Res. Council, 490 U.S. 360, 377 (1989).

22

Pls.’

However, TRPA concluded that

The Court’s expertise does not lie in

Such

Marsh v. Oregon

Plaintiffs argue that this data shortage is emblematic of a

23

wider deficiency in TRPA’s monitoring program.

Pls.’ Mot. at 23.

24

Plaintiffs note that the 2011 TER acknowledges that “the spacing

25

and density of monitoring sites is insufficient.”

26

AR82).

27

acknowledges that the limitations on monitoring reduce the

28

“confidence” with which the agency can make its findings.

Id. (citing

Plaintiffs also cite a number of instances in which TRPA

18

Pls.’

1

Mot. at 23.

2

not required.

3

Bd. of Directors, 216 Cal.App.4th 614, 640 (2013) (noting, in a

4

CEQA case, that an agency need not analyze “all information

5

available on a subject;” the mere fact that more information

6

“might be helpful does not make it necessary” that the agency

7

consider it).

8

“spacing and density of monitoring sites is insufficient to know

9

the extent of how maximum and minimum pollutant concentrations

However, complete certainty on the agency’s part is
N. Coast Rivers Alliance v. Marin Mun. Water Dist.

Moreover, the 2011 TER merely acknowledges that

10

are distributed throughout the basin.”

11

These limitations were taken into account by the “moderate”

12

confidence level with regard to the attainment of California’s 8-

13

hour ozone standard, as expressed in the 2011 TER.

14

peer-reviewed findings constitute substantial evidence on which

15

TRPA could base its wider approval of the RPU.

16

Plaintiffs note that, unlike the Draft EIS, the 2011 TER was not

17

peer-reviewed, the statistical methodology used in both reports

18

was peer-reviewed along with the Draft EIS.)

19

AR82 (emphasis added).

AR97.

These

(Although

Moreover, TRPA was not required to make a finding that the

20

LTAB region is currently in attainment of all threshold

21

standards.

22

Supp. 2d 1098, 1145 (E.D. Cal. 2013).

23

find that the RPU implements a plan that will achieve and

24

maintain those thresholds.

25

on the region’s current attainment of the thresholds in making

26

that finding.

27

factors.

28

quality in the LTAB region is consistently improving, due to

Sierra Club v. Tahoe Reg'l Planning Agency, 916 F.
Rather, it was required to

Id. at 1145.

TRPA partially relied

However, TRPA also relied on a number of other

Def.’s Cross-Mot. at 24.

19

First, it noted that air

1

increasingly stringent vehicle emission standards.

2

Second, the RPU implements a number of programs and policies

3

designed to “reduce dependency on the automobile by making more

4

effective use of existing transportation modes and of public

5

transit.”

6

provides incentives for the creation of non-motorized trails, the

7

removal of non-compliant emission sources, and enhanced

8

pedestrian, bicycling, and public transit opportunities.

9

AR26684-85.

Compact, Art. V(c)(2)(A).

AR26683.

Among other things, the RPU

As high ozone levels are largely tied to vehicle

10

emissions, these changes provide additional support for TRPA’s

11

finding that the RPU will achieve and maintain air quality

12

thresholds.

13

that the Regional Plan, as amended by the RPU, will achieve and

14

maintain the ozone threshold.

Substantial evidence supported TRPA’s conclusion

15
16
17

IV.

ORDER

For all the foregoing reasons, the Court DENIES Plaintiffs’

18

Motion for Summary Judgment and GRANTS Defendant’s Cross-Motion

19

for Summary Judgment:

20
21

IT IS SO ORDERED.
Dated:

April 4, 2014

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