California Court of Appeals, First District, First Division
COMMUNITIES FOR A BETTER ENVIRONMENT et al., Plaintiffs and Appellants,
BAY AREA AIR QUALITY MANAGEMENT DISTRICT, Defendant and Respondent; KINDER MORGAN MATERIAL SERVICES, LLC, et al., Real Parties in Interest and Respondents; TESORO REFINING & MARKETING COMPANY LLC, Intervener and Respondent
modified Aug. 10, 2016.
Superior Court of San Francisco County, No. CPF14513557,
Peter J. Busch, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Earthjustice, Kristen L. Boyles and Stacey P. Geis for
Plaintiffs and Appellants.
C. Bunger for Defendant and Respondent.
Smith, Paul D. Fogel, John L. Smith and Brian A. Sutherland
for Real Parties in Interest and Respondents.
Phelps & Phillips, Craig J. de Recat and Benjamin G. Shatz
for Intervener and Respondent.
by Humes, P. J., with Margulies, and Dondero, JJ.,
Cal.Rptr.3d 14] HUMES, P. J.
Communities for a Better Environment, Asian Pacific
Environmental Network, Sierra Club, and Natural Resources
Defense Council (collectively, CBE) filed a petition for writ
of mandate and a complaint under the California Environmental
Quality Act (Pub. Resources Code, § 21000) (CEQA) after
respondent Bay Area Air Quality Management District (BAAQMD)
determined that its approval for a Richmond rail-to-truck
facility to transload crude oil instead of ethanol was "
ministerial" and exempt from CEQA review. The trial
court dismissed the petition and complaint without leave to
amend, concluding that the suit was time-barred under Public
Resources Code section 21167, subdivision (d)
only issue on appeal is whether CBE can successfully amend
its petition and complaint to allege that the action is
timely by virtue of the discovery rule. In the typical case,
the discovery rule postpones the accrual of an action from
the date an injury occurs until the date the plaintiff has
actual or constructive notice of the facts constituting the
injury. CBE claims that it should be allowed to rely on the
discovery rule here because it could not have learned about
BAAQMD's determination any earlier, as BAAQMD gave no
" public notice" of it and " the project
itself [was] hidden from the public eye." But an action
to challenge such a determination accrues not at the time of
the determination but instead on one of three alternative
dates set forth in section 21167(d), dates on which the the
public is deemed to have [205 Cal.Rptr.3d 15] constructive
notice of the potential CEQA violation. The discovery rule
has never been applied to postpone the accrual of an action
beyond the date the plaintiff has constructive notice of an
injury, and we decline to so apply it here. We therefore
and Procedural Background
relevant facts may be summarized briefly. Respondent Kinder
Morgan Material Services, LLC (Kinder Morgan), began
operating an ethanol rail-to-truck transloading facility in
Richmond around 2009. In February 2013, Kinder Morgan applied
to BAAQMD for approval to alter the facility and begin
transloading Bakken crude oil. According to CBE, Bakken crude
oil is " highly volatile and explosive" and "
[t]he range of significant adverse environmental impacts of
Kinder Morgan's operation includes a high risk to public
health and safety from derailment, significant increases in
toxic air contaminants, potential contamination of
California's precious waterways (that support entire
ecosystems), and significant increases in greenhouse gas
determining that the project was " ministerial" and
not subject to CEQA review, BAAQMD authorized Kinder Morgan
to begin transloading crude oil by issuing a permit in July
2013 called an authority to construct. BAAQMD concedes that
it did not issue an optional notice of exemption (NOE) that
would have publicly announced its determination that the
project was exempt from CEQA review. (See § ...