Communities for a Better Environment v. Bay Area Air Quality Management District

         As modified Aug. 10, 2016.

          Superior Court of San Francisco County, No. CPF14513557, Peter J. Busch, Judge.

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          COUNSEL

          Earthjustice, Kristen L. Boyles and Stacey P. Geis for Plaintiffs and Appellants.

         Brian C. Bunger for Defendant and Respondent.

         Reed Smith, Paul D. Fogel, John L. Smith and Brian A. Sutherland for Real Parties in Interest and Respondents.

         Manatt, Phelps & Phillips, Craig J. de Recat and Benjamin G. Shatz for Intervener and Respondent.

         Opinion by Humes, P. J., with Margulies, and Dondero, JJ., concurring.

          OPINION

          [205 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^[1] section 21167, subdivision (d) (section 21167(d)).

         The 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 affirm.

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         I.

         Factual and Procedural Background

         The relevant facts may be summarized briefly.^[2] 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 emissions."

         Upon 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 § ...