Judge Mitchell L. Beckloff, Case 20STCP03138 2023-01-11 Tentative Ruling

Judge: Mitchell L. Beckloff, Case: 20STCP03138, Date: 2023-01-11 Tentative Ruling

On August 27, 2020, Respondent, the California Air Resources Board (CARB)[1] adopted a regulation amending the existing airborne toxic control measure (ATCM) for auxiliary diesel engines operated on ocean-going vessels at berth at a California port (the Regulation). Petitioner, Western States Petroleum Association, challenges the Regulation. Petitioner contends CARB failed to comply with the California Environmental Quality Act (CEQA), Public Resources Code section 21000, et seq., as well as other provisions of law—including the Administrative Procedures Act (APA), Government Code section 11340, et seq.—when it adopted the Regulation. Petitioner seeks an order pursuant to Public Resources Code section 21080.5 and Code of Civil Procedure section 1085 compelling CARB to set aside its approval of the Regulation. Petitioner also requests CARB be compelled to comply with CEQA.

The Regulation is designed to achieve public health and air quality benefits for California port communities through emissions reductions from ocean-going vessels at berth at California ports and independent marine terminals. The Regulation requires marine vessels in California to meet emissions standards using shore power or another CARB-approved emissions control strategy. (Cal. Code Regs., tit. 17, § 93130.5.)

On October 15, 2019, CARB released its draft environmental analysis (EA) for the Regulation.[2] (AR 434.) CARB permitted multiple rounds of public comment about the draft EA. On August 25, 2020, CARB released a final EA. (AR 17524; AR 16867 [Final EA].)

On August 27, 2020, at a board hearing, CARB adopted the Regulation as amendments to the ATCM for auxiliary diesel engines operated on ocean-going vessels at berth at a California port (Cal. Code Regs., tit. 17, § 93118.3). (AR 335-344.)

Petitioner contends CARB acted arbitrarily, capriciously, without evidentiary support and/or contrary to California law, including CEQA, when it adopted the Regulation.

Petitioner challenges CARB’s adoption of the Regulation under Code of Civil Procedure section 1085.

Ordinary mandate under Code of Civil Procedure section 1085 is generally used to review an agency’s ministerial acts, quasi-legislative acts and quasi-judicial decisions which do not meet the requirements for review under Code of Civil Procedure section 1094.5. (Bunnett v. Regents of University of California (1995) 35 Cal.App.4th 843, 848; Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1264-1265.)

An agency’s adoption of a regulation is a quasi-legislative act. (See California Optometric Assn. v. Lackner (1976) 60 Cal.App.3d 500, 505, [quasi-legislative action where Director of Health adopted regulations establishing Medi-Cal rates].)

The parties agree review of CARB’s action here is pursuant to Code of Civil Procedure section 1085. Under Code of Civil Procedure section 1085, a writ:

“may be issued by any court to any . . . board . . . to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).)

“To obtain a writ of mandate under Code of Civil Procedure section 1085, the petitioner has the burden of proving a clear, present, and usually ministerial duty on the part of the respondent, and a clear, present, and beneficial right in the petitioner for the performance of that duty.” (Marquez v. State Dept. of Health Care Services (2015) 240 Cal.App.4th 87, 103.)

“A ministerial duty is one that a public functionary is required to perform in a prescribed manner in obedience to the mandate of legal authority, without regard to his or her own judgment or opinion concerning the propriety of such act.” (Association of Deputy District Attorneys for Los Angeles County v. Gascon (2022) 79 Cal.App.5th 503, 528 [cleaned up].) “Mandamus does not lie to compel a public agency to exercise discretionary powers in a particular manner, only to compel it to exercise its discretion in some manner.” (California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150, 177.)

In such cases, the appropriate standard of judicial review is whether the agency's action was arbitrary, capricious, entirely lacking in evidentiary support, or failed to follow the procedure required by law. (Citizens for Improved Sorrento Access, Inc. v. City of San Diego (2004) 118 Cal.App.4th 808, 814; Heist v. County of Colusa (1984) 163 Cal.App.3d 841, 846.) Such issues “are essentially questions of law.” (Mike Moore’s 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294, 1303.) “[U]nless otherwise provided by law, the petitioner always bears the burden of proof in a mandate proceeding brought under . . . section 1085. [Citation.] Thus, it is petitioner's burden to establish that [the agency's] decision was arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair. [Citation.]” (American Coatings Assn. v. South Coast Air Quality Management Dist. [American Coatings] (2012) 54 Cal.4th 446, 460 [cleaned up].)

Adoption of regulations by state agencies is governed by the rulemaking requirements of the APA. (Gov. Code § 11340, et seq.) CARB is subject to the APA and must follow the APA’s requirements to adopt a regulation of general application. (Health & Saf. Code, § 39601, subd. (a).) Health and Safety Code section 39601, subdivision (a), requires CARB to “adopt standards, rules, and regulations . . . necessary for the proper execution of the powers and duties granted to, and imposed upon, [CARB] by [division 26 of the Health and Safety Code] and by any other provision of law.”

Under the statutory scheme, a “regulation or order of repeal may be declared to be invalid for a substantial failure to comply” with the APA. (Gov. Code, § 11350, subd. (a); see California Assn. of Medical Products Suppliers v. Maxwell-Jolly (2011) 199 Cal.App.4th 286, 303. [“The regulation ‘may’ be declared to be invalid by a court because of a ‘ “substantial failure” to comply with’ the APA.”]) “[C]ourts reviewing regulations for compliance with the APA owe no deference to the promulgating agency's opinion that it complied with the prescriptions of the APA.” (Sims v. Department of Corrections & Rehabilitation (2013) 216 Cal.App.4th 1059, 1071.)

“In addition to any other ground that may exist, a regulation or order of repeal may be declared invalid if either” the agency's determination that a regulation is reasonably necessary to support the purpose of a statute “is not supported by substantial evidence” or the “agency declaration pursuant to paragraph (8) of subdivision (a) of [Government Code s]ection 11346.5 is in conflict with substantial evidence in the record.” (Gov. Code, § 11350, subd. (b)(1)-(2); see California Assn. of Medical Products Suppliers v. Maxwell-Jolly, supra, 199 Cal.App.4th at 304.)

Judicial review of administrative rulemaking is constrained by the recognition that “[i]n technical matters requiring the assistance of experts and the study of marshaled scientific data . . . . , courts will permit administrative agencies to work out their problems with as little judicial interference as possible.” (Western States Petroleum Assn. v. South Coast Air Quality Management Dist. (2006) 136 Cal.App.4th 1012, 1018.)

When reviewing an agency’s compliance with CEQA during the course of its legislative or quasi-legislative actions, the trial court’s inquiry during a mandamus proceeding “ ‘shall extend only to whether there was a prejudicial abuse of discretion,’ ” which is established “ ‘if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ ” (Vineyard Area Citizens for Responsible Growth Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426 [citing Pub. Resources Code, § 21168.5].)

CEQA requires an EIR to “be prepared with a sufficient degree of analysis to provide decision makers with information which enables them to make a decision which intelligently takes account of environmental consequences.” (CEQA Guidelines^{^[3]} § 15151; Sierra Club v. County of Fresno [Friant Ranch](2018) 6 Cal.5th 502, 516.) “An EIR’s designation of a particular environmental effect as ‘significant’ does not excuse the EIR’s failure to reasonably describe the nature and magnitude of the adverse effect.” (Friant Ranch, supra, 6 Cal.5th at 514.) “[T]here must be a disclosure of the ‘analytic route the . . . agency traveled from evidence to action.’” (Laurel Heights Improvement Assn. v. Regents of the University of California (1988) 47 Cal.3d 376, 404.) “[A] conclusory discussion of an environmental impact an EIR deems significant can be determined by a court to be inadequate as an informational document without reference to substantial evidence.” (Friant Ranch, supra, 6 Cal.5th at 514.) If the deficiencies in an EIR preclude “informed decisionmaking and public participation, the goals of CEQA are thwarted and a prejudicial abuse of discretion has occurred.” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 128.)

A state agency operating a certified regulatory program “generate[s] a[n] . . . environmental review document that serves as a functional equivalent of an EIR. [Citations.]” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 113.) Although “[a]n agency operating pursuant to a certified regulatory program” is not required to prepare an EIR, the agency is still required to “comply with all of CEQA's other requirements. [Citations.]” (Id. at 114; see Pub. Resources Code, § 21080.5, subd. (c); Guidelines, § 15250.)

“Where the alleged defect is that the agency has failed to proceed in the manner required by law, the court determines de novo whether the agency has employed the correct procedures, scrupulously enforcing all legislatively mandated requirements.” (Chico Advocates for a Responsible Economy v. City of Chico (2019) 40 Cal.App.5th 839, 845.)

“Regardless of what is alleged, an EIR approved by a governmental agency is presumed legally adequate, and the party challenging the EIR has the burden of showing otherwise.” (Chico Advocates for a Responsible Economy v. City of Chico, supra, 40 Cal.App.5th at 846.)

Finally, “[t]he legal duties imposed by CEQA are to be strictly enforced. [Citation.] ‘Only by requiring the [agency] to fully comply with the letter of the law can a subversion of the important purposes of CEQA be avoided . . . .’ [Citation.] The requirements of CEQA also must be ‘interpreted in such manner as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.’ [Citation.]” (Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1176.)

Of course, perfection is not required. Instead, courts look “for adequacy, completeness, and a good faith effort at full disclosure.” (Guidelines, § 15151.)

The Regulation requires marine vessels in California to use shore power or another CARB-approved emissions control strategy to meet certain emissions standards. (Cal. Code Regs., tit. 17, § 93130.5.)

Petitioner claims CARB violated its statutory duties when it adopted the Regulation. Petitioner contends CARB did so because it adopted the Regulation without substantial evidence of the Regulation’s feasibility or safety. As noted, Petitioner asserts CARB failed to comply with both the APA and CEQA when it adopted the Regulation.

In March 2022, Petitioner moved to augment the administrative record with (1) a comment letter, dated June 14, 2019, from Petitioner to CARB, urging the agency to conduct a feasibility study of shore-based emissions capture and control technologies prior to adopting the Regulation; and (2) a feasibility and technical analysis by DNV USA, Inc. (DNV) commissioned by Petitioner addressing the application of the Regulation’s proposed control technology to tanker vessels (DNV Feasibility Study).

The court granted the motion to augment as to the comment letter and denied the motion as to the DNV Feasibility Study. Thus, to the extent Petitioner’s Opening Brief—filed before the court heard and decided the motion to augment—cites to and relies on the DNV Feasibility Study, the court cannot consider such arguments and extra-record evidence.

First, Petitioner argues CARB violated its statutory duties by failing to demonstrate with substantial evidence the Regulation is feasibility and safe—as required by Health and Safety Code sections 39666, 38560, and 43013. (Health & Saf. Code, § 39666, subd. (c); see also Health & Saf. Code, § 38560 [greenhouse gas regulations must be “technologically feasible”], § 43013, subd. (a) [mobile source emission regulations must be “technologically feasible”].)

Petitioner asserts “the record contains no evidence (a) that either shore power or emission control systems have been successfully implemented on tankers or tanker terminals/ports, or (b) that either technology could be implemented safely and feasibly for tankers in the timeframes provided by the Regulation. [Petitioner] and other parties provided significant evidence that such technologies were not feasible in those timeframes.” (Opening Brief 10:17-21.)

Petitioner continues, even assuming a safe and feasible tanker control technology could eventually be developed sometime in the future, the total development time for the technology–together with the time needed for construction of the necessary supporting complex infrastructure at tanker terminals—would likely range from 10 to 15 years after adoption of the Regulation. (Opening Brief 14:8-12. [“CARB has provided no record evidence that compliant control technologies are presently available for tankers, that such technologies are in development for tankers, that there is a time period in which such technologies are commonly developed in the industry, or that invention of a yet-unproven technology for tankers will occur within the Regulation’s deadlines.” See also AR 60234.)

As such, according to Petitioner, any safe, compliant technology is not feasible within the time constraints imposed by the Regulation. Such fact, in Petitioner’s view, therefore renders the Regulation infeasible.

Petitioner relies on the following statues to support its claim CARB has failed to demonstrate the Regulation is “feasible.”

“(c) For toxic air contaminants for which the state board has not specified a threshold exposure level pursuant to Section 39662, the airborne toxic control measure shall be designed, in consideration of the factors specified in subdivision (b) of Section 39665, to reduce emissions to the lowest level achievable through application of best available control technology or a more effective control method, unless the state board or a district board determines, based on an assessment of risk, that an alternative level of emission reduction is adequate or necessary to prevent an endangerment of public health.” (Emphasis added.)

“The state board shall adopt rules and regulations in an open public process to achieve the maximum technologically feasible and cost-effective greenhouse gas emission reductions from sources or categories of sources, subject to the criteria and schedules set forth in this part.” (Emphasis added.)

“(a) The state board shall adopt and implement motor vehicle emission standards, in-use performance standards, and motor vehicle fuel specifications for the control of air contaminants and sources of air pollution which the state board has found to be necessary, cost effective, and technologically feasible, to carry out the purposes of this division, unless preempted by federal law.”

Petitioner argues the Regulation does not comply with the feasibility requirements of the cited statutes from the Health and Safety Code. CARB’s characterization of and conclusion about the Regulation as “technology forcing” is incorrect.

Petitioner—relying upon American Coatings, supra, 54 Cal.4th 446—argues the validity of a CARB regulation in this context requires CARB to demonstrate (a) some similar technology is already available; (b) other compliant technologies are being developed; and (c) new products are commonly developed in the industry in a timeframe amply accommodating the regulation. (Opening Brief 14:1-5 [citing American Coatings, supra, 54 Cal.4th at 470-471].

CARB argues Petitioner misinterprets applicable statutory terms. Like Petitioner, CARB relies on American Coatings, supra, 54 Cal.4th at 446. In American Coatings, the petitioner challenged an air quality agency's interpretation of the term “ ‘best available retrofit control technolog[ies]’ ” as used in the relevant air quality statute to include technologies that are not yet available but are expected to be available in the future. (Id. at 469.) The Supreme Court explained that such an interpretation is particularly appropriate for pollution control law because such laws should be viewed as “technology-forcing” given that “industry generally has insufficient incentive to develop or adopt new pollution control technology in the absence of regulation.” (Id. at 466.)

According to CARB, American Coatings does not require it to demonstrate that “emission control systems have been successfully implemented” or “are presently available” or “in development for tankers.” Instead, CARB asserts the Regulation is valid where its requirements are “capable of being achieved by” the Regulation’s compliance deadline, which is assessed from CARB’s “vantage point” at the time CARB adopts the regulation. (Opposition 13:19-22.) (See American Coatings, supra, 54 Cal.4th at 464. [“Thus, an emissions reduction that is ‘achievable’ in this context is readily understood as a reduction that, from the vantage point of 1999 or 2002, was capable of being achieved by 2006.”]) CARB “need not consider only existing technology in determining whether an emissions reduction is achievable; it may also take into account reasonably foreseeable technological advances.” (Id. at 473.)

The court agrees with CARB’s interpretation of American Coatings. Accordingly, this court’s inquiry is whether record evidence supports CARB’s conclusion the emissions standards set forth in the Regulation are capable of being achieved by marine vessels at berth in California through shore power or other CARB-approved emissions control technologies. That is, does the Regulation “reduce emissions to the lowest level achievable through application of best available control technology or a more effective control method . . . .” (Health & Saf. Code § 39666, subd. (c).)

The Regulation provides tankers and other marine vessels with multiple compliance options to meet its emissions reductions requirements. While available as an option, the Regulation does not require emissions standards be achieved only through shore power and/or capture and control technologies. Shore power and capture and control technologies, however, will result in compliance with the emission reductions in the Regulation.

CARB demonstrates shore power is currently “available” and in use in California ports with record evidence. CARB reports shore power is “feasible for tanker vessels” given that shore power has “been safely and successfully” used by at least two tankers at the Port of Long Beach since 2009 (AR 51097, 25808) as well as by other vessels at California ports and terminals. (AR 19591, 50995.)

The record also suggests capture and control technology is “available” for use for compliance with the Regulation.[4] Currently, there are two barge-based capture and control systems in use for container vessels at the Port of Long Beach and the Port of Los Angeles. (AR 19591, 19634.) The technology providers for such systems stated similar capture and control technology could be safely adapted to tanker vessels and manufactured well before the Regulation’s compliance deadlines. (AR 51092-51093.) In fact, CARB reports one provider submitted a presentation and diagrams (AR 59377-59386) explaining its technology, which has “[s]afely connect[ed] to hundreds of vessels” (AR0059378), could be adapted to tankers, including in “high winds.” (AR 59382.)

A land-based capture and control system is currently in demonstration at the Port of Long Beach. (AR 19592.) CARB anticipates tanker vessels will use the land-based capture system but acknowledges “wharf infrastructure improvements” will be necessary. (AR 19592.) At least one land-based capture and control system is already used to curb vessels’ auxiliary engine emissions in Port of Los Angeles. (AR 51150, AR 19669.)

Petitioner summarily dismisses one example of shore power for a diesel-electric tanker relied upon by CARB as evidence of achievability as “unique.” (Opening Brief 10 fn. 7.) CARB acknowledges “not every tanker and tanker berth in California would be able to utilize shore power in the same way.” (AR 51094.) CARB noted the example nonetheless “does demonstrate that shore power is a feasible strategy for reducing auxiliary engine emissions from tanker vessels.” (AR 51094.)

Additionally, Petitioner argues CARB had no evidence shore power will reduce emissions at berth from power boilers as boilers “are not configured to operate on electricity.” (AR 19589.) CARB notes “shore power remains the gold standard in air pollution because it eliminates all on-site auxiliary engine emissions while the vessel is at berth, including cancer-causing DPM emissions.” (AR 19589.) CARB also explains the Regulation accommodates the shore power-non-electric boilers issue—if a tanker uses shore power in lieu of its auxiliary engine, the Regulation does not require the tanker to curb emissions from its boiler. (Cal. Code Regs., tit. 17, § 93130.5, subd. (d)(2). [“For tanker vessels with steam driven pumps, unless the tanker is using shore power to reduce emissions from auxiliary engines, a person must demonstrate that the CAECS achieves emission rates less than 0.4 g/kW-hr for NOx, 0.03 g/kW-hr for PM 2.5, and 0.02 g/kW-hr for ROG for tanker auxiliary boilers.”])

The court finds substantial evidence support’s CARB finding the emissions standards set forth in the Regulation are capable of being achieved by marine vessels at berth in California through shore power or other CARB-approved emissions control technologies. Petitioner has not demonstrated CARB acted arbitrarily, capriciously or without evidentiary support when it found compliance with the Regulation was feasible.

Petitioner cites no legal authority requiring CARB to undertake and rely upon a “study” to reach its feasibility determination. (Pulaski v. California Occupational Safety and Health Standards Board (1999) 75 Cal.App.4th 1315, 1330 [rejecting challenge where agency’s initial and final statement of reasons relied on “only six documents, none of which was a study,” reasoning a study “was not required”].) In any event, CARB contends its initial statement of reasons as well as its standardized regulatory impact analyses and related appendices provided an evaluation “similar” to that requested by Petitioner. (AR 50902, AR 50931-50932.)

Moreover, that CARB acknowledges its Regulation is “technology forcing” is of no consequence:

“Tankers represent the largest single category of emissions remaining unregulated at California terminals and communities near these terminals cannot simply hope that industry will implement the technology needed to achieve emissions reductions equivalent to those sought by the Regulation; rather, a regulatory signal is needed to achieve these reductions. Staff understands that this Regulation is technology forcing. While the technology to control emissions from all vessel types exists, not all of the technologies have been adapted for use, or are physically available for all vessel types in California at the time of adoption of the Regulation. However, the Regulation provides many years of preparation time for tanker vessels to implement technology to control emissions, with ro-ro and tanker compliance deadlines in Los Angeles and Long Beach beginning January 1, 2025, and all remaining tanker terminals beginning January 1, 2027. Staff expects regulated entities to perform feasibility studies on the technologies that they wish to use to achieve compliance under the Regulation. If these studies are provided to CARB in a timely manner, they will be considered in the Interim Evaluation.” (AR 50934-50935 [emphasis added].)

Based on the foregoing, the court finds Petitioner has not met its burden of demonstrating CARB’s feasibility determination in connection with its adoption of the Regulation was arbitrary, capricious or entirely lacking in evidentiary support.

Even assuming the technology required for compliance with the Regulation exists, Petitioner argues CARB has not demonstrated the timing associated with the Regulation is feasible. That is, Petitioner argues the total development time required for the technology—together with the time needed for construction of the necessary supporting complex infrastructure at tanker terminals—"could range” from 10 to 15 years after adoption of the Regulation. (AR 60234.) Petitioner relies on its own comment letter based on estimates by its members to support its claim.

CARB notes Petitioner’s position on timing ignores record evidence on the issue. Two technology providers indicated they could deploy adequate capture and control systems within the timeline imposed by the Regulation. (AR 51092 [“existing vessel emissions control manufacturers, who are highly knowledgeable in this filed, have informed CARB that similar controls can be adapted for use on tankers”].) One technology provider estimated it could supply 30 “capture and control systems that could be deployed” by 2025 and 50 by 2027. (AR 20905-20904 [noting types “applicable to tankers”].) The other technology provider anticipated it could deploy 14 capture and control “systems by 2025, and an additional six systems dock based or barge-based units by 2027-2028 comfortably.” (AR 60385.) CARB estimates the Regulation requires 21 capture and control systems by 2027 assuming all tanker terminals will use a land-based capture and control system to meet emission standards. (AR 41073.)

Petitioner contends the two infrastructure projects CARB relied on to support its consideration of timing feasibility did not involve “installation and testing of yet-unproven technologies, and both were significantly smaller than the scale of infrastructure that would be required for permanently installed land-based emission control technologies for tankers.” (Reply 7:6-9 [citing AR 60235-60236].)

The record evidence relied upon by Petitioner to support its position is (again) its own unsubstantiated comment letter challenging CARB’s findings. (Reply 7:16-18 [citing AR 60234-38, 60295-97].) While Petitioner contends CARB ignored the evidence, the foundation for Petitioner’s position comes from Petitioner’s members. Petitioner’s letter asserts “completion and commissioning of land-based capture and control systems for tanker vehicle emissions is not expected before mid-2034 in most cases and is likely to extend at least to the end of 2035 for complex installations.” (AR 60234.) Petitioner contends “[r]eal-world experience demonstrates that, for complex installations, it is difficult to anticipate precise timelines for each step at the outset of the process, and timelines typically lengthen as the project proceeds.” (AR 60234.)

That Petitioner’s members opinions about a timeline for completion conflicted with the experienced technology providers relied upon by CARB does not make CARB’s analysis arbitrary, capricious or without evidentiary support. CARB was well within its authority to rely upon the experience and representations of those technology providers and their opinions concerning timing feasibility.

Second, Petitioner suggests CARB refused to follow guidance from the International Maritime Organization and in the International Safety Guide for Tankers and Terminals (ISGOTT) prior to implementing the Regulation. Petitioner, however, has not cited any legal authority requiring CARB to do so. Moreover, the record reflects CARB did, in fact, consider Chapter 8 of the ISGOTT, the only chapter submitted to CARB for consideration. (AR 51478.) CARB explained why the ISGOTT resulted in no changes to CARB’s analysis. (AR 51478.)

Third, Petitioner challenges CARB’s claim its “Interim Evaluation” and “Innovative Concepts” provisions provide actual “alternatives” to its tanker emissions control mandates. As noted earlier, the court finds CARB’s determination the Regulation feasible is not arbitrary, capricious or unsupported by the evidence. Thus, the validity of the Regulation is not impacted by CARB’s Interim Evaluation or Innovative Concepts provisions.

Petitioner also seeks repeal of the Regulation contending CARB’s “declaration pursuant to paragraph (8) of subdivision (a) of Section 11346.5 is in conflict with substantial evidence in the record.” (Gov. Code § 11350, subd. (b)(2).) Paragraph (8) of subdivision (a) of Health and Safety Code section 11346.5 provides:

“If a state agency, in adopting, amending, or repealing any administrative regulation, makes an initial determination that the action will not have a significant, statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states, it shall make a declaration to that effect in the notice of proposed action.”

First, Petitioner contends CARB failed to comply with Health and Safety Code sections 39601.5 and 39607.3 because CARB relied on inaccurate tanker emissions data. Specifically,

“Here, CARB’s projections of future tanker economic activity and emissions in California were based on outdated data, conflicted with more recent evidence of tanker activity and emissions, and were unreasonably optimistic, thereby yielding overblown projections of future tanker visits and accompanying projected tanker emissions (and thus, an exaggerated prediction of public health benefits from controlling tanker emissions).” (Opening Brief 17:11-15.)

Relatedly, Petitioner contends CARB violated its statutory duties by failing to disclose, prior to adopting the Regulation, the results of a CARB-sponsored study finding that modern tanker fleet emissions were significantly lower than CARB staff’s assumptions in its October 15, 2019 initial statement of reasons. (Opening Brief 19:5-7.) CARB’s assumptions, according to Petitioner, proved to be “overblown projections . . . .” (Opening Brief 19:7.) Petitioner claims CARB’s lack of disclosure violated the APA’s requirements related to an agency’s rulemaking file. (See generally Gov. Code, § 11347.3.)

Petitioner explains, in 2019, CARB commissioned engineers at the University of California, Riverside, Bourns College of Engineering Center for Environmental Research and Technology (CE-CERT) to conduct a study (the CE-CERT Report) to evaluate real-world emissions from a modern tanker ship auxiliary boiler in the process of offloading fuel at berth. (AR 66786-66845.) CE-CERT conducted testing of the tanker boiler in October 2019, finding the tanker tested discharged PM2.5 and NOx emissions significantly lower than CARB staff’s assumptions in CARB’s initial statement of reasons.

Petitioner summarized the differences between the CE-CERT Report’s conclusions and those of CARB staff as follows:

Petitioner argues the CE-CERT Report’s data is “a more representative and up-to-date picture of the modern tanker fleet likely calling on California terminals and ports now and into the future.” (Opening Brief 20:9-11 [citing AR 66715].) As such, Petitioner suggests the Regulation is premised on CARB’s out-of-date and inaccurate data assumptions.

CARB reports as a procedural and rulemaking file matter Petitioner had access to the CE-CERT Report in early July 2020—undermining Petitioner’s claim CARB failed to disclose the CE-CERT Report as part of its statutory duties related to rulemaking. (AR 66715 [July 2020 comment letter].) Further, CARB reports it included a draft of the CE-CERT Report in the rulemaking file as an attachment to Petitioner’s comment letter. (AR 66786-66845) As such, Petitioner cannot show a violation of Government Code section 11347.3, which requires only that a rulemaking file be “available to the public for inspection and copying.” (Gov. Code, § 11347.3, subd. (a).)

Although Petitioner contends “[t]he law required CARB to have disclosed the CE-CERT Report immediately upon receipt, regardless of whether its results supported the Regulation or not” (Reply 10:27-28), Petitioner reads additional duties into Government Code section 11347.3. Moreover, even if Petitioner’s gloss on the statute is considered, CARB notes, the record is not clear CARB had the report from CE-CERT until Petitioner made “inquiries.” In any case, there is no question CARB included the CE-CERT Report as part of the rulemaking file, and Petitioner demonstrates no prejudice from having to ask CARB about the CE-CERT Report—which undisputedly resulted in the CE-CERT Report’s inclusion in the rulemaking file and served as one basis for Petitioner’s comment letter.

Moreover, CARB adequately explains the lack of weight it gave the CE-CERT Report in its evaluation. The single modern tanker used by CE-CERT would misrepresent the fleet of tankers subject to the regulation. That is, the CE-CERT Report relies a new, cleaner tanker, while it is an “older international fleet of tankers that comprise[] the vast majority of vessel visits.” (AR 51528-51530.)

Second, Petitioner contends CARB’s analysis of the economic impact of the Regulation is flawed. Petitioner argues CARB improperly relied upon the California Department of Finance’s economic forecasts from the Spring of 2019 and failed to take into account financial impacts from the COVID-19 global pandemic. In contrast to the economic forecast by the department, Petitioner’s independent analysis by Capital Matrix Consulting in April 2020 indicated a “global economic contraction” because of the pandemic. (AR 62614 [Capital Matrix Consulting letter].)

Petitioner claims CARB could rely only upon accurate projections (presumably like that of Capital Matrix Consulting) of future economic activity and such analysis is critical to CARB’s emissions analysis. Petitioner explains CARB based its projections of future emissions from marine vessels and terminals on predictions of economic activity and industry growth. (AR 20478-20490.) Despite the global pandemic and economic slowing, Petitioner argues CARB refused to reconsider or amend the Regulation.

CARB contends its determinations of the economic impacts of the COVID-19 pandemic are entitled to deference. CARB asserts Petitioner’s evidence concerning the potential impacts of the pandemic are speculative and not entitled to any weight to undermine CARB’s economic analysis. (California Assn. of Medical Products Suppliers v. Maxwell-Jolly, supra, 199 Cal.App.4th at 310.)

Petitioner’s claim CARB is not entitled to any specific “technical” deference on its COVID-19 economic impact determination is well taken. Nonetheless, CARB’s actions and evidentiary findings are generally entitled deference under the applicable standard of review for traditional mandate. In fact, CARB’s analysis was grounded in fact—the global economic recession of 2009-2010.

CARB adequately explained its consideration of economics, the COVID-19 pandemic and the Regulation: “Because the current circumstances are unique from past recession events, CARB staff expect there may be a reduction in emissions to continue over the next few years from reduced vessel visit activity but outcomes are unknown. Therefore [CARB] did not make changes to [its] inputs or methodologies at this time.” (AR 48550.) Nonetheless, CARB made adjustments to the Regulation based on the COVID-19 pandemic. CARB extended the deadline for certain types of vessels, such as cruise ships. CARB declined to make such changes for tankers given “historical data from the 2008-2010 economic recession” showing tanker vessel visit activities recovered in two to three years whereas other vessels took longer. (AR 48550, 62841, 50898-50899.)

While CARB’s reliance on past historical data of economic downturns to make projections based on this present COVID-19 pandemic economic contraction may not be perfect, the court does Petitioner has demonstrated CARB’s reliance on such data to be arbitrary, capricious or lacking in any evidentiary support. Additionally, CARB notes the Interim Evaluation provides an “appropriate opportunity to re-evaluate the Regulation based on updated economic conditions in 2022.” (AR 51337, 50898-50899.)

Finally, the court notes the economic forecasting information relied upon created by Capital Matrix Consulting in April 2020 is speculative on its face. It would be impossible to predict the economic effects of an unprecedented global pandemic within seven weeks of the Governor’s declaration of a state of emergency based on the COVID-19 virus. (AR 62768-62789 [Petitioner’s May 1, 2020 Letter].)

First, Petitioner contends CARB’s final EA improperly deferred analysis of the Regulation’s safety, feasibility and environmental impacts. Specifically, Petitioner argues “[t]he Final EA sidesteps detailed discussion of environmental impacts, including tanker safety and feasibility by addressing the Regulation as a general ‘broad regulatory program.’ ” (Opening Brief 21:8-12 [citing AR 16880, 17529-17532].)

Petitioner suggests CARB’s analysis is deficient as to the safety risk of “invent[ing] and apply[ing]” this new unproven boiler gas capture technology. Petitioner asserts the EA improperly assumes the Regulation will be implemented safely.

CARB argues its analysis was appropriate given the context—"a broad regulatory program.” “The degree of specificity required in an [EA] will correspond to the degree of specificity involved in the underlying activity that is described in the [EA].” (Guidelines, § 15146.) CARB contends as the Regulation is “a broad regulatory program, a general level of detail is appropriate.” (AR 16880.)

CARB frames the issue as whether an EA can defer analysis of unknown future projects to later project-level EIRs when the Regulation’s impacts are currently too speculative vis-à-vis future projects. Citing Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, CARB argues its EA analysis is consistent with CEQA. (Id. at 422.)

CARB’s reasoning is well-taken; CARB determined that a program EA was appropriate here for the following reasons: “(1) any individual action . . . would be carried out under the same program; (2) the reasonably foreseeable compliance responses would [have] similar environmental effects that can be mitigated in similar ways . . . ; and (3) . . . the specific location, design, and setting of the potential actions cannot feasibly be known.” (AR 16907, AR 17530.) CARB recognizes any project carried out under the program will require compliance with CEQA’s environmental review process.

Under these circumstances, the court agrees CARB permissibly relied on a program EA to “consider broad policy alternatives and program wide mitigation measures at an early stage.” (Cal. Code Regs., tit. 14, §§ 15146, 15168.) Further, such a “program EIR [or EA] may appropriately defer discussion of site specific impacts and mitigation measures to later project EIR’s . . . .” (Center for Biological Diversity v. California Department of Conservation, etc. (2019) 36 Cal.App.5th 210, 230; see also Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 372.)

Petitioner does not directly respond to CARB’s argument. Petitioner instead contends CARB’s citied authorities are “not analogous.” (Reply 11:5-17.)

“CEQA does not require identification of every possible” future project-level activity in a program EIR or EA. (North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 679; Cal. Code Regs., tit. 14, §§ 15151, 15168.)

Here, consistent with Guidelines section 15145, CARB acknowledged the uncertainty surrounding the types of future emissions-reducing projects that may cause construction and infrastructure-related environmental impacts. (AR 16881.) CARB contends—and the court agrees—CARB was not required to do more with respect to specific future projects that may result from the Regulation. (Cal. Code Regs., tit. 14, § 15145. [“If, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact.”]) “The level of specificity of an EIR is determined by the nature of the project and the ‘rule of reason’ [citation] . . . .” (Center for Biological Diversity v. California Department of Conservation, etc., supra, 36 Cal.App.5th at 230

The court finds Petitioner has not met its burden of showing CARB violated CEQA and prejudicially abused its discretion when it relied on a program EA.

Second, Petitioner posits CARB failed to conduct a sufficient cumulative impacts analysis.

According to Petitioner, CARB’s EA was required to contain a “discussion and consideration of environmental impacts, adverse or beneficial, and feasible mitigation measures.” (Cal. Code Regs., tit. 17, § 60004.2, subd. (a).) CARB’s EA instead chose to rely upon the summary of impacts prepared for CARB’s 2016 State Implementation Plan (SIP) Strategy for reduction of air emissions because the Regulation’s “primary objective is to reduce emissions.” (AR 17023-17027; see also AR 17575, 17608 [rejecting analysis of shoreline projects].) Petitioner argues CARB’s reliance on the 2016 SIP Strategy was improper because CARB relied on outdated information and focused on air emissions instead of marine projects.

Contrary to CARB’s suggestion that upcoming marine-related construction would not be significant, Petitioner provided a list of such projects in its August 27, 2020 comment letter to CARB. (AR 66979-66982.) According to Petitioner, CARB was therefore required to consider in its cumulative impacts analysis these and other coastal construction and marine infrastructure projects producing related impacts, including to biological resources.

First, nothing required CARB to provide a “list” of “projects” for analysis. CEQA allows agencies to conduct cumulative impacts analysis by relying on either “a list of past, present, and probable future projects or a prior “summary of projections contained in . . . plans for the reduction of greenhouse gas emissions [or] an adopted or certified prior environmental document for such a plan.” (Cal. Code Regs., tit. 14, § 15130, sub. (b)(1)(B).)

CARB’s EA relied on the latter. CARB may not, however, rely on a summary if the summary is “outdated or inaccurate.” (League to Save Lake Tahoe Mountain etc. v. County of Placer (2022) 75 Cal.App.5th 63, 149.)

Here, however, the 2016 SIP Strategy addressed emissions associated with ports (AR 17574-17575, AR 24225) and considered the cumulative impacts of a full range of reasonably foreseeable compliance measures that reduce the same pollutants (particulate matter and greenhouse gas emissions) targeted by the Regulation (AR 17023, AR 24224). Such compliance measures involved construction of new charging facilities, utility and infrastructure impacts, modifications to engines, and short-term construction impacts—infrastructure like that Petitioner claims might be needed here. (AR 17023, AR 24224.) Moreover, the 2016 SIP Strategy identifies the prior regulation as an included measure to reduce air pollution (AR 24305) and contemplates the Regulation as one of the projects covered by the 2016 SIP Strategy (AR 242305-243077).

Although the analysis is from 2016, Petitioner provides no record evidence to suggest

any change in circumstances affecting the reasonableness of relying on the 2016 SIP Strategy in an effort to comply with Guidelines section 15130, subdivision (b)(1)(B). Instead, Petitioner argues the 2016 SIP Strategy did not adequately address cumulative impacts in marine environments. Petitioner suggests—by omitting marine projects that would occur during overlapping construction timelines—the EA failed to consider any potentially significant cumulative impacts to biological resources, wetlands and sensitive habitats, and other coastal impacts that would occur in sensitive marine environments.

While Petitioner specifies differences from CARB’s reliance on Guidelines section 15130, subdivision (b)(1)(B)’s summary of projects—as opposed to subdivision (b)(1)(A)’s list of projects provided by Petitioner—Petitioner does not demonstrate CARB’s choice renders the EA defective as an informational document. That is, Petitioner does not demonstrate CARB’s reliance on the 2016 SIP Strategy rendered the cumulative impacts analysis inaccurate—Petitioner merely demonstrates a different measure and discussion of the potential cumulative impacts could have been utilized by CARB. As noted earlier, perfection is not required; courts look “for adequacy, completeness, and a good faith effort at full disclosure.” (Guidelines, § 15151.)

Third, Petitioner contends CARB failed to recirculate the EA as required by Guidelines section 15088.5 after CARB added significant new information to the EA. Petitioner contends CARB’s failure to recirculate the EA deprived the public of a meaningful opportunity to comment about substantial adverse environmental effects, mitigation and alternatives.

Petitioner reports the final EA added five pages of content concerning increased risks of tanker explosion and other safety risks as well as safety measures required in the tanker industry. CARB also deleted the draft EA’s conclusion the Regulation would not pose a significant risk for the public or environment. (AR 16980-16984. See AR 16984. [“This technology would therefore ~~not~~ increase the risk of the release of hazardous materials. ~~Therefore, the requirements of the Proposed Regulation would not be expected to pose significant risk to the public or the environment.~~”]) CARB concluded in the final EA that such risks were potentially significant and unavoidable (AR 16985) but failed to assess the risk (AR 51530).

Additionally, Petitioner also notes the final EA added the following sentence: “Pile driving can cause impacts on aquatic species, including acoustic impacts and individual mortality” (AR 16941) and thereafter declared such impacts to be “potentially significant and unavoidable.” (AR 16944). Petitioner complains CARB did not prepare an assessment of those impacts, and CARB failed to recirculate the EA after disclosing this significant impact.

The opposition concedes the final EA contained new information but contends “new information . . . is not ‘significant’ unless” the draft EA “is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect.” (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1129.) CARB argues it added no significant information to the final EA and suggests Petitioner misstates the nature of the information included in the final EA.

CARB deleted the draft EA’s conclusion the Regulation would not pose a significant risk for the public or environment (AR 16984) in response to a public comment—from Petitioner—about the draft EA. (AR 17527, 17567.) The Petitioner’s comment advised CARB’s significance conclusion was unclear. (AR 17567.) Petitioner’s comment notes CARB’s ultimately omitted conclusion of no significant risk for the public or environment was unclear (i.e., confusing) given the text that preceded the conclusion. (AR 60247.)

CARB’s response to Petitioner’s comment attributed the lack of clarity to “scrivener’s error.” (AR 17567.) CARB’s revised response and the change to the final EA is consistent with the text preceding it and eliminates the inconsistency in the draft EA identified by Petitioner through public comment. (Compare AR 16984 [Final EA] with AR 542 [Draft EA].) CARB’s change to the final EA did not deprive the public of an opportunity to comment on the “inherent need for additional safety measures for all tanker vessels visiting California ports and marine terminals” based on the risk of “spills, fires, and explosions that could involve terminal equipment or vessels at berth.” (AR 541.)

Moreover, the five additional pages included in the final EA provide greater detail of the tanker docking/off-load process, the safety dangers involved and how the tanker industry can develop and implement measures to avoid and mitigate safety risks. (AR 16980-16984.) The information is not “significant new” information in the context of recirculation of the EA; the information amplifies information (additional background and context) already provided to the public and decisionmakers.

Finally, the court agrees CARB’s addition of the sentence regarding “pile driving” does not add new significant information requiring recirculation. The draft EA contained CARB’s analysis reflecting its view the “Regulation would include ground disturbing activities such as pile driving, which could result in erosion” and involve “noise generating construction activities.” (AR 16987, 17001.) Admittedly, the addition of this sentence specifically discusses such activities’ impact on aquatic species. (AR 16941.) The draft EA contains such a discussion:

“Construction activities related the implementation of the Proposed Regulation could cause temporary direct and indirect adverse impacts to special status species (including coastal species such as California Least Tern, California Brown Pelican). To support capture and control systems, ports may need to pile drive marine areas near vessels. Although unlikely, dredging activity could adversely affect subtidal benthic species and communities by producing suspended sediments and disturbing latent toxic substances that could increase the turbidity and affect water quality ~~of wafer~~. Sediments could later settle on subtidal species.

above-ground; therefore, the potential for adverse construction-related effects related to these activities on biological resources would mainly be limited to pile driving, installation of piping and staging areas associated with facility modifications. Direct mortality could result from destruction of dens, burrows, or nests through ground compaction, ground disturbance, debris, or vegetation removal within port facility and marine terminal sites. Indirect impacts to species could result from construction noise disturbance that might cause nest or den abandonment and loss of reproductive or foraging potential around the site during construction, transportation, or destruction of equipment and existing structures.” (AR 16941-16942 [underline and strikethrough in original].)

Like the additional context and background information provide by CARB in the final EA concerning tanker safety, the court finds the single sentence specifically addressing pile driving and aquatic specifies merely amplifies information CARB provided in the draft EA. The draft EA noted a potential need for pile driving areas near vessels, dredging and adverse effects flowing to marine wildlife. The information provided by CARB in the draft EA provided the public and decisionmakers with a meaningful opportunity to comment on a substantial effect on the environment.

Petitioner argues the EA was deficient because it did not consider a feasibility and cost effectiveness study as an alternative to the Regulation—referred to as the Industry Coalition Alternative. (AR 17067-17069.) Petitioner claims CARB rejected this alternative because allowing additional time for such studies would be inconsistent with CARB’s timing objective. (AR 17067-17069.) Petitioner argues CARB’s justification was inadequate to reject consideration of the Industry Coalition Alternative.

An EA must discuss alternatives which “could feasibly attain most of the project objectives but could avoid or substantially lessen any of the identified significant impacts.” (Cal. Code Regs., tit. 17, § 60004.2, subd. (a)(5); tit. 14, § 15126.6, subd. (d).)

CARB argues it was only “required to consider a reasonable range of alternatives to the proposed project, which could feasibly attain most of the project objectives but could avoid or substantially lessen any of the identified significant impacts.” (Opp. 31:11-13 [quoting Cal. Code Regs., tit. 17, § 60004.2 subd. (a)(5)].)

CARB first asserts Petitioner misstates its rationale for rejecting the Industry Coalition Alternative; CARB rejected the alternative because CARB determined it did not meet six of the project objectives: (1) reductions of emissions in communities near ports; (2) reductions of emissions at additional ports not regulated previously; (3) reductions of emissions from “roll-on, roll-off” vessels and tankers; (4) reductions of emissions from small fleets;

(5) implementation of a regulatory structure based on individual vessel visits; and

(6) achievement of air quality standards over the next 15 years as part of the 2016 SIP Strategy. (AR 17067-17068.)

Petitioner’s failure to address the multiple grounds identified by CARB as its basis for rejecting the Industry Coalition Alternative is fatal. Petitioner has failed to meet its burden of demonstrating CARB’s rejection of the Industry Coalition Alternative violated CEQA.[5]

[1] Petitioner also brings this petition against Richard Corey in his official capacity as Executive Officer of CARB.

[2] CARB’s review process is a certified regulatory program. CARB is therefore exempt from certain procedural requirements of CEQA. (Cal. Code Regs., tit. 17, §§ 60000-60008.) Accordingly, CARB prepared an EA for the Regulation in lieu of an environmental impact report (EIR). (Pub. Resources Code, § 21080.5; Cal. Code Regs., tit. 14, § 15251, subd. (d).)

[3] The CEQA Guidelines are found at Title 14, Chapter 3 in the California Code of Regulations. For ease of reference, the guidelines are cited herein as “Guidelines.”

[4] The opposition notes there are three types of systems: barge-based where the capture and control technology equipment is transported to the vessel by a barge, land-based where the capture and control technology equipment is connected to the vessel by a machine at a port or terminal, or potentially onboard the vessel. (AR 19589-19590.)

[5] While Petitioner responds all six reasons CARB rejected the Industry Coalition Alternative relate to timing in reply, the summary undetailed response is unpersuasive and insufficient to meet Petitioner’s burden of demonstrating CARB’s prejudicial error.

Source	NOx (g/kWh)	PM2.5 (g/kWh)
CE-CERT Report	0.858	0.0066
CARB ISOR Assumptions	1.995	0.151
Staff Emissions Overstated By	233%	2,288%