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No Wetlands Landfill Expansion et al v. County of Marin et al

March 20, 2012

NO WETLANDS LANDFILL EXPANSION ET AL., PLAINTIFFS AND RESPONDENTS,
v.
COUNTY OF MARIN ET AL., DEFENDANTS AND APPELLANTS, REDWOOD LANDFILL, INC. REAL PARTY IN INTEREST AND APPELLANT.



Trial Court: Marin County Superior Court Trial Judge: Honorable James J. Ritchie (Marin County Super. Ct. No. CIV 090198)

The opinion of the court was delivered by: Sepulveda, J.*fn5

CERTIFIED FOR PUBLICATION

A public agency issued a permit for expansion of a landfill after considering and certifying as complete an environmental impact report (EIR) prepared pursuant to the California Environmental Quality Act (Pub. Resources Code § 21000, et seq., hereafter CEQA).*fn1 Community organizations filed a petition for a writ of mandate. The organizations claimed a right to appeal the EIR certification to the county board of supervisors, and also claimed that the EIR was inadequate and should be adjudged so by the superior court. The superior court resolved the first issue alone and issued a judgment directing the county board of supervisors to hear an administrative appeal of the EIR certification.

We reverse the judgment. Approval of the landfill permit, and certification of the EIR for that approval, is a power vested in a local enforcement agency not the county itself. The local enforcement agency is a distinct legal entity from the county. The county board of supervisors has no authority to approve or disapprove the project at issue and thus is not a "decisionmaking body" empowered to hear plaintiffs' administrative appeal. (§ 21151, subd. (c); Guidelines, §§ 15090, subd. (b), 15356.)*fn2 Plaintiffs' challenge to the adequacy of the EIR lies in the superior court, to which we remand this case. (§ 21167, subd. (c).)

i. facts

Redwood Landfill, Inc. (RLI) operates the Redwood Landfill on a 420-acre site north of Novato on the Petaluma River in Marin County. The landfill began receiving waste in 1958, and handles the majority of Marin County's solid waste. RLI has a solid waste facilities (SWF) permit issued pursuant to the Integrated Waste Management Act (Waste Act). (§ 40000 et seq.) "[T]he responsibility for solid waste management is a shared responsibility between the state and local governments." (§ 40001, subd. (a).) The California Department of Resources Recycling and Recovery (CalRecycle) generally enforces the Act but may also certify a local government agency as the enforcement agency in a given community.*fn3 (§ 40110, 43200 et seq.) In 1992, CalRecycle certified Marin County Environmental Health Services (Marin EHS) as the local enforcement agency for Marin County. In 1995, Marin EHS issued an SWF permit to RLI, with the concurrence of CalRecycle. In 1999, RLI filed an application with Marin EHS to revise the landfill's SWF permit, which is the subject of this litigation. RLI's application seeks operational changes and expansion of the landfill's capacity. RLI also has a conditional use permit for operation of the landfill that was issued by Marin County in 1958. The use permit is broadly written and contains no expiration date. RLI has not applied for any change to its use permit, only its SWF permit.

Issuance of an SWF permit is a discretionary decision by a public agency implicating CEQA, which requires environmental review of both public projects and public agency approval of private projects. (§§ 21000, subd. (g), 21001.1, 21080, subd. (a).) Marin EHS, as the public agency with principal responsibility for issuing the requested SWF permit, assumed the role of lead agency under CEQA. (Guidelines, § 15367.) An Initial Study concluded that substantial changes were proposed that had not been addressed in a prior EIR from 1995, and this required a subsequent EIR. (Guidelines, § 15162, subd. (a).) A draft EIR was completed in 2003, and the final EIR in 2005. The final EIR presented a project redesign as a mitigated alternative, which RLI accepted. The final EIR was twice amended and the process finally completed in May 2008. Pursuant to Marin County guidelines, the Marin County Planning Commission, "as the Body with the greatest expertise for CEQA environmental review," reviewed the EIR and recommended to the "decision making body"--here, Marin EHS--certification of the EIR. In June 2008, Marin EHS certified the final EIR Second Amendment.

Plaintiff No Wetlands Landfill Expansion (NWLE), an association of local residents, claimed a right to appeal the Marin EHS certification to the Marin County Board of Supervisors (Board of Supervisors), and filed a petition to do so in June 2008. Plaintiff environmental groups Sustainability, Parks, Recycling and Wildlife Legal Defense Fund (SPRWLDF) and Northern California Recycling Association (NCRA) joined in the petition for appeal. Marin county counsel advised plaintiffs that Marin EHS was acting as the designated representative of CalRecycle under the Waste Act, not the County of Marin, and thus no appeal to the Board of Supervisors was available. County counsel also stated that "appeal of a CEQA determination is not timely until after action on the underlying project is taken" and "[t]he underlying project here would be action on the anticipated proposed revision of the Solid Waste Facility Permit, which action has not yet occurred."

Meanwhile, action on the proposed SWF permit proceeded. Marin EHS deemed the application complete in October 2008 and found that the permit was consistent with state standards for solid waste facilities. (§ 44010.) Marin EHS provided CalRecycle with a copy of the proposed permit containing the terms and conditions Marin EHS proposed to establish. (§ 44007.) In November 2008, plaintiffs SPRWLDF and NCRA petitioned Marin EHS for an administrative review hearing under the Waste Act to challenge Marin EHS's recommended issuance of the SWF permit. (§ 44307.) Marin EHS scheduled a hearing. Meanwhile, after public hearing and deliberations, CalRecycle concurred in issuance of the SWF permit. (§ 44009.) Marin EHS was now authorized to issue the SWF permit, and did so in December 2008. (§ 44014, subd. (a).) Plaintiffs SPRWLDF and NCRA withdrew their petition for an administrative hearing.

In January 2009, plaintiffs NWLE, SPRWLDF, and NCRA filed in the superior court a petition for a writ of mandate alleging violations of CEQA and local land use law. (Code Civ. Proc., §§ 1085, 1094.5.) Plaintiffs sued Marin County, the Board of Supervisors, and Marin County agencies including Marin EHS and one of its officers. In June 2010, plaintiffs filed their opening brief. Plaintiffs argued that defendants violated CEQA in refusing their June 2008 petition for appeal to the Board of Supervisors that challenged Marin EHS's certification of the EIR. Plaintiffs relied upon a CEQA provision stating that, "[i]f a non-elected decisionmaking body of a local lead agency certifies an environmental impact report . . . that certification . . . may be appealed to the agency's elected decisionmaking body, if any." (§ 21151, subd. (c).) Effectively, plaintiffs asserted that the Board of Supervisors was Marin EHS's elected decisionmaking body and thus should review Marin EHS's EIR certification. Plaintiffs also claimed that the certified EIR failed to adequately analyze numerous environmental impacts from an expanded landfill.

Defendants responded that there was no appeal to the Board of Supervisors because Marin EHS was acting as the designated representative of CalRecycle under the Waste Act, not the County of Marin. Marin EHS is an entity distinct from the County of Marin, defendants argued, and does not have an elected decisionmaking body to hear an appeal following Marin EHS's certification of an EIR. The remedy for individuals dissatisfied with an EIR certified by Marin EHS is an immediate writ of mandate. (§ 21167 et seq.) Defendants noted that plaintiffs also had, as an additional remedy, an administrative challenge to the SWF permit under Waste Act provisions, which they abandoned. (§§ 44307, 45030.) Defendants also defended the EIR on its merits, contending that it fully assessed the environmental impacts of the project.

In October 2010, the trial court issued an order granting plaintiff's petition for a writ of mandate on the cause of action alleging a CEQA violation for refusing appeal of the EIR certification to the Board of Supervisors. (§ 21151, subd. (c).) The court did not address plaintiff's claims that the EIR is inadequate, finding that those claims could be "rendered moot by subsequent actions by the Board of Supervisors, which could include EIR revisions." The court denied defendants' motion for a new trial. Judgment was issued in March 2011. The court ordered defendants to vacate certification of the EIR and issuance of the SWF permit and to allow an administrative appeal of Marin EHS's certification of the EIR to the Board of Supervisors. Defendants appealed the judgment to this court.

ii. discussion

The question presented on appeal is a narrow one: is Marin EHS's certification of an EIR for issuance of an SWF permit appealable to the Board of Supervisors? The answer is no. The source of the answer lies in the regulatory structure created by the Waste Act and the Waste Act's intersection with CEQA. That regulatory structure reveals that approval of an SWF permit, and certification of the EIR for that approval, is a ...


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