Poet v. State Air Resources Board (2013) · DecisionDepot

Poet v. State Air Resources Board

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
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California Court of Appeal Jul 15, 2013 No. F064045Published

Before: Franson

Filed 7/15/13

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

POET, LLC et al., F064045 Plaintiffs and Appellants, (Super. Ct. No. 09CECG04659 ) v.

CALIFORNIA AIR RESOURCES BOARD et OPINION al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Fresno County. Jeffrey Y. Hamilton, Jr., Judge. Wanger Jones Helsley, Timothy Jones, John P. Kinsey, and Daren A. Stemwedel for Plaintiffs and Appellants. Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Senior Assistant Attorney General, Robert W. Bryne, Gavin G. McCabe, Supervising Deputy Attorneys General, Mark W. Poole, David A. Zonana, and M. Elaine Meckenstock, Deputy Attorneys General, for Defendants and Respondents.

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part V. of the Discussion.

Kahn, Soares, & Conway, Louis A. Brown, and Joshua J. Bettencourt for National Biodiesel Board and California Biodiesel Alliance as Amici Curiae on behalf of Defendants and Respondents. Shute, Mihaly & Weinberger, Matthew D. Zinn; Timothy J. O‟Connor; and Matthew Vespa for American Lung Association in California, Coalition for Clean Air, Conservation Law Foundation, Environmental Defense Fund, and Sierra Club Environmental Law Program as Amici Curiae on behalf of Defendants and Respondents. J. Nathan Jensen for Clean Energy as Amicus Curiae on behalf of Defendants and Respondents. Judi K. Mosley for Pacific Gas and Electric Company as Amicus Curiae on behalf of Defendants and Respondents. -ooOoo- INTRODUCTION As part of developing solutions to global warming, the California Legislature adopted the California Global Warming Solutions Act of 2006 (the Act) and established the first comprehensive greenhouse gas regulatory program in the United States. The California Air Resources Board (ARB) is the state agency charged with regulating the sources of emissions of greenhouse gases that cause global warming. The goal of the Act is to reduce greenhouse gas emissions to 1990 levels by 2020, by regulation to establish a statewide cap on greenhouse gas emissions beginning in 2012. California‟s single largest source of greenhouse gas emissions, which include carbon dioxide and other carbon compounds, is the fuel used for transportation. To reduce the emissions from transportation, ARB adopted a number of regulations, including the Low Carbon Fuel Standards (LCFS) regulations that require the reduction of the carbon content of transportation fuels sold, supplied or offered for sale in California. ARB‟s task of creating the LCFS regulations was complex and presented many questions of science, economics and law. ARB‟s proposed regulations were required to

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meet substantive requirements of the Act, procedural requirements for rulemaking in California‟s Administrative Procedures Act (APA), and substantive and procedural requirements in the California Environmental Quality Act (CEQA). Furthermore, the Act required the LCFS regulations, as well as other greenhouse gas measures, to be in place by January 1, 2010. In sum, ARB was given a difficult task and the pressure of a statutory deadline. ARB‟s efforts to complete the LCFS regulations on time satisfied a vast majority of the applicable legal requirements, but ran afoul of several procedural requirements imposed by CEQA and the APA. While these procedural violations are not trivial, they do not require us to automatically discard the existing LCFS regulations and order ARB to restart the complex rulemaking process anew. The statutes in question allow courts to tailor the remedy to the circumstances of each case and, therefore, we may consider the public interests affected by setting aside the LCFS regulations. Those public interests include adverse environmental impacts and, in particular, whether suspending the LCFS regulations would result in more environmental harm than allowing them to remain in effect pending the completion of ARB‟s corrective action. Because of the potential adverse environmental impacts, as well as other disruptions, we will allow the LCFS regulations to remain operative while ARB complies with the procedural requirements it failed to satisfy. In other words, we will avoid the irony of violations of an environmental protection statute being used to set aside a regulation that restricts the release of pollutants into the environment. Summary of Legal Issues and Our Conclusions POET, LLC and James M. Lyons (plaintiffs) have challenged the LCFS regulations on the grounds that ARB violated the APA and CEQA during the adoption process. Plaintiffs contend ARB violated the APA by excluding from the rulemaking file made available to the public certain emails from consultants. The emails concerned the computer model ARB used to calculate the indirect carbon emissions attributable to

For 2011, the carbon intensity value for diesel fuel and its substitutes was set at 94.47 gCO2E/MJ. By 2020, the standard was reduced to 85.24 gCO2E/MJ. To determine whether or not a regulated party would meet the yearly standard, the proposed LCFS assigned carbon intensity values for various types of fuels and required the regulated party to calculate the average carbon intensity of all the fuel it provided for that year. The proposed LCFS regulations did not prohibit or require the use of any particular type of fuel. Instead, regulated parties were given the freedom to determine the mix of fuels they would use to meet that the annual standard. When a regulated party came in below the annual standard, credits would be generated and could be sold to other regulated parties or carried over to subsequent years. The carbon intensity values assigned to particular fuel lifecycles were important to the producers of that fuel, as well as the regulated parties in California, because those values created an incentive or disincentive to use that fuel. For instance, when an alternative fuel has a lower carbon intensity value than the gasoline or diesel benchmark, producers and importers have an incentive to use that alternate fuel as a substitute for the higher carbon intensity fuels they sold in the past. Therefore, the assigned carbon intensity values would ultimately affect the demand and price of that alternative fuel. Controversies arose regarding the carbon intensity values assigned as producers of the various types of fuel vied for favorable terms for their product. Lifecycle Analysis The carbon intensity value assigned to the various fuels was determined using a lifecycle analysis. This analysis estimates the aggregate quantity of greenhouse gas emissions from all steps in a fuel‟s lifecycle, including the direct effects of producing and using the fuel, and the indirect effects that may result from the increased production of that fuel. A fuel‟s lifecycle can be divided chronologically into two stages: (1) all the steps leading up to the delivery of the finished fuel or blendstock into a vehicle‟s fuel tank and (2) the combustion of the fuel in the vehicle. When the fuel is derived from

After the hearing, ARB issued a press release stating: “Today, the Air Resources Board adopted a regulation that will implement Governor Schwarzenegger‟s Low Carbon Fuel Standard calling for the reduction of greenhouse gas emissions from California‟s transportation fuels by ten percent by 2020.” (Underlining omitted.) Resolution 09-31, establishing the LCFS and adopted for approval on April 23, 2009, included a finding that indirect land use change had been appropriately included in the analysis of the lifecycle of some crop-based biofuels and that excluding the effects of land use change would delay the development of truly low-carbon fuels and jeopardize the achievement of the 2020 goal of a 10 percent reduction in carbon intensity. Resolution 09-31 also approved the Carbon Intensity Lookup Table in section 95486 of title 17 of the California Code of Regulations and gave the Executive Officer the authority to revise the fuel pathways and carbon intensity values set forth in that table, except for the carbon intensity values based on land use changes. Therefore, the 30 and 46 gCO2E/MJ assigned to ethanol from corn and sugarcane, respectively, to account for carbon emissions from land use changes was established by the Board at the April 23, 2009, public hearing and could not have been changed by the Executive Officer. The Board‟s actions on April 23, 2009, are important for purposes of this appeal because those actions are the basis for plaintiffs‟ argument that ARB prematurely approved the LCFS regulations before completing its environmental review and thereby violated CEQA. Executive Officer’s Actions As directed by Resolution 09-31, the Executive Officer incorporated the modifications approved by the Board at the April 23, 2009, hearing, along with appropriate conforming modifications, and made the modifications available for a supplemental comment period of 15 days. The notice of the public availability of the modified text and additional documents was issued on July 20, 2009, and August 19, 2009, was set as the deadline for public comment.

matter, appropriate standard of review depends on whether a legal or factual question is being reviewed].) As to legal error, courts conduct an independent review to determine whether the public agency proceeded in the manner required by law. (Vineyard Area, supra, 40 Cal.4th at p. 426.) Alternatively, when reviewing an agency‟s factual determinations for error, courts apply the substantial evidence standard. (Ibid.) As a result of the two standards, “a reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts.” (Id. at p. 435.) In accordance with this principle, we will scrutinize each of plaintiffs‟ CEQA claims to determine whether the alleged defect is predominantly one of improper procedure or a disagreement with the agency‟s factual findings. 2. ARB’s Approach to Judicial Review and Applicable Law The cornerstone of ARB‟s analysis of the CEQA claims is its certified regulatory program. In ARB‟s view, the fact it acted under a certified regulatory program plays a key role in determining the applicable standards of judicial review. With respect to legal error—that is, whether it “has not proceeded in a manner required by law” (§ 21168.5)—ARB contends: “The procedures by which ARB is to be judged are those set forth in its certified regulatory program. (See Pub. Resource Code, § 21080.5(c); Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236.)” This contention is an incomplete statement of the procedures that ARB must follow to satisfy CEQA. A certified regulatory program is exempt from the procedures regarding the preparation of a negative declaration or EIR, but the “certified program remains subject to other provisions in CEQA such as the policy of avoiding significant adverse effects on the environment where feasible.” (Guidelines, § 15250.) Thus, ARB‟s approach to legal error is unduly narrow because it ignores the procedures in the

“other provisions in CEQA” (ibid.) applicable to the action taken by ARB under its certified regulatory program. Another aspect of the analysis of legal error that is important in this appeal concerns the Guidelines and their role in determining whether ARB failed to proceed in a manner required by law. ARB‟s respondent‟s brief contends that “in analyzing compliance with a certified regulatory program, the CEQA Guidelines do not directly apply to the environmental documentation. [Citation.]” This contention appears to be the basis for ARB‟s failure to cite any Guideline concerning the “other provisions in CEQA” (Guidelines, § 15250) that are applicable to certified regulatory programs. For example, ARB did not cite Guidelines section 15352, which defines the “approval” of a CEQA project or the Guidelines that address the timing of that approval. To complete the description of ARB‟s approach to judicial review, we note that ARB also contends that (1) the documents prepared under a certified regulatory program are to be judged under the deferential substantial evidence standard, (2) ARB‟s substantive determinations are entitled to deference, and (3) this deference extends to its interpretation of statutes and regulations. 3. Our Approach to Judicial Review Our inquiry into the standards of judicial review that apply to the CEQA claims presented in this appeal begins with the following basic question: Are the standards of judicial review applicable to agency action taken under a certified regulatory program determined by the same analysis used in other CEQA contexts, such as those involving the preparation of an EIR? We conclude the same analysis is used to determine the appropriate standard of judicial review. (See 2 Kostka & Zischke, supra, § 21.1, p. 1084 [standard of review is the same when challenged action was taken under a certified regulatory program].) Our conclusion is based on the wording of section 21168.5, which refers to “any action or proceeding” challenging an agency decision on the grounds of noncompliance

with CEQA. Plaintiffs‟ lawsuit clearly qualifies as an “action or proceeding.” The statute‟s use of the word “any” is not qualified and, thus, provides no basis for concluding section 21168.5 does not apply to plaintiffs‟ CEQA claims. (See Estate of Lucas (1943) 23 Cal.2d 454, 465 [statutory reference to “„any claim”” and “„any suit”” construed broadly].) Furthermore, neither section 21168.5 nor any other provision in CEQA expressly excludes decisions made under a certified regulatory program from the standards of judicial review contained in section 21168.5. Therefore, under the abuse of discretion standard set forth in section 21168.5, we will independently review claims of legal error and apply the substantial evidence standard to claims that ARB committed factual error. Our choice between independent and substantial evidence review is guided by the California Supreme Court‟s statement that “a reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts.” (Vineyard Area, supra, 40 Cal.4th at p. 435.) Thus, when plaintiffs‟ CEQA claim is predominantly one of procedure, we will conduct an independent review. When plaintiffs‟ CEQA claim disputes the factual findings made by ARB, we will review the record to determine whether the challenged finding is supported by substantial evidence. II. PROJECT APPROVAL AND TIMING OF PREPARATION OF CEQA DOCUMENTATION Our “scrutiny [of] the nature of the alleged defect” (Vineyard Area, supra, 40 Cal.4th at p. 435) in plaintiffs‟ first CEQA claim begins with an examination of the parties‟ contentions and the requirements of CEQA that plaintiffs allege were violated. A. Contentions of the Parties Plaintiffs contend that ARB violated CEQA by approving the LCFS regulations before it completed the environmental review process required by CEQA. Plaintiffs reference the definition of “approval” in Guidelines section 15352 and contend that

ARB‟s “approval” of the LCFS regulations occurred on April 23, 2009, when the Board passed Resolution 09-31. In response, ARB contends that plaintiffs‟ argument “rests on a false premise: that ARB completed its rulemaking process at its Board meeting on April 23, 2009.” ARB asserts that Resolution 09-31 was merely the initial approval and that the final LCFS regulations were not adopted until November 25, 2009, and March 4, 2010, as reflected in Executive Order R-09-014 and Executive Order R-10-003, respectively. These executive orders were issued after the Executive Officer completed ARB‟s environmental review process by issuing written responses to public comments. In ARB‟s view, it fully complied with its certified regulatory program and CEQA because it completed the environmental review before the LCFS regulations became final. Plaintiffs argue that ARB‟s position contains legal error because ARB has treated “approval” as occurring when “ARB completed its rulemaking process” or “when the LCFS regulations became final .…” Plaintiffs suggest this legal error occurred because ARB ignored the definition of “approval” contained in Guidelines section 15352 as well as Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116 (Save Tara), a Supreme Court case that discussed the application of this definition of “approval.” The parties‟ contentions can be read as presuming that CEQA requires agencies acting under a certified regulatory program to complete their environmental review before approving their project. Rather than simply joining this presumption, we will set forth the basis for the principle that environmental review must be completed before project approval and discuss how “approval” is defined for purposes of this requirement. B. Statutory and Regulatory Provisions 1. Timing of Environmental Review and Project Approval A certified regulatory program remains subject to the provisions of CEQA outside the scope of the exemption provided by subdivision (c) of section 21080.5. (2 Kostka &

C. Judicial Review Whether we conduct an independent review or apply the substantial evidence standard depends on “the nature of the alleged [CEQA] defect.” (Vineyard Area, supra, 40 Cal.4th at p. 435.) We must determine “whether the claim is predominantly one of improper procedure or a dispute over the facts.” (Ibid.) The California Supreme Court‟s position on the standard of review applicable to the question of the timing of project approval relative to the environmental review is set forth in Save Tara, supra, 45 Cal.4th 116. Save Tara involved a city‟s agreement to sell land and allow private development of that land so long as the developers complied with CEQA. The Supreme Court considered whether entry into that agreement constituted “approval” of the project and, thus, was required to be preceded by the preparation of an EIR. (Save Tara, supra, at p. 121.) The court concluded that “the City of West Hollywood‟s conditional agreement to sell land for private development, coupled with financial support, public statements, and other actions by its officials committing the city to the development, was, for CEQA purposes, an approval of the project .…” (Id. at pp. 121-122.) As to the standard of review, the court determined “that postponement of an EIR until after the project approval constitutes procedural error that is independently reviewable .…” (Id. at p. 131, fn. 10.) D. Analysis of When Approval Occurred 1. Principles Governing the Inquiry into Approval The Supreme Court‟s decision in Save Tara, supra, 45 Cal.4th 116 is the leading case regarding the application of the definition of “approval” contained in Guidelines section 15352. (See City of Santee v. County of San Diego (2010) 186 Cal.App.4th 55, 61 [Save Tara provides “significant and controlling elaboration” of the definitions of “approval” and “project”].) The legal question we must decide is whether the general principles set forth in Save Tara regarding the application of the definition of “approval” should be extended to the instant case. We conclude they should.

There are two main differences between the situation presented in Save Tara and the facts of the instant case. First, Save Tara involved a project that would be completed by private parties. Here, the project is being carried out by ARB, a public agency. Second, the environmental review document prepared for the project in Save Tara was an EIR. Here, there is no EIR because the implementation of the LCFS regulations is being accomplished under a certified state regulatory program. We conclude that the general principles regarding “approval” set forth in Save Tara should be extended to projects undertaken by public agencies under certified regulatory programs. Our conclusion is based on the text of the regulatory definition and the fundamental policies underlying CEQA. Subdivision (a) of Guidelines 15352 states: “„Approval‟ means the decision by a public agency which commits the agency to a definite course of action in regard to a project intended to be carried out by any person.” This definition explicitly refers to projects “to be carried out by any person.” The term “any person” is broad and includes both public entities and private parties. Therefore, the definition of “approval” in subdivision (a) of Guidelines section 15352 applies to both public and private CEQA projects. Furthermore, nothing in the definition of “approval” suggests that it is limited to situations involving EIR‟s or otherwise does not extend to projects subject to environmental review under a certified regulatory program. Other provisions in the Guidelines indicate the definition of approval does not change when a certified regulatory program is involved. Specifically, Guidelines section 15004, subdivision (a) includes a cross-reference to Guidelines section 15352 and the definition of “approval” and sets forth the principle that documents prepared in place of an EIR (such as those prepared under a certified regulatory program) shall be considered before granting any approval to the project.

2. Application of Principles to Facts of this Case Plaintiffs‟ position that the ARB approved the LCFS regulations on April 23, 2009, is based on (1) the wording of documents created by ARB and (2) the practical effect of the provisions in Resolution 09-31. Plaintiffs cite documents created by ARB that state the LCFS regulations were either “approved” or “approved for adoption” at the April 23, 2009, public hearing. Plaintiffs argue that these statements amount to an admission that, for purposes of CEQA, the Board gave its “approval” to the LCFS regulations at the April 2009 hearing. As to the practical effect of the resolutions passed by the Board at the April 23, 2009, hearing, plaintiffs‟ argument is based on the wording of those resolutions and the way they were implemented. Plaintiffs contend that, before the environmental review was completed, the resolutions effectively foreclosed the consideration of alternatives and mitigation, “including the alternative of not going forward with the project” (Save Tara, supra, 45 Cal.4th at p. 139). Before describing ARB‟s documents that plaintiffs‟ claim show the LCFS regulations were approved at the April 23, 2009, hearing, we will address whether those documents are relevant to the inquiry regarding when approval occurred. In Save Tara, supra, 45 Cal.4th at page 139, the Supreme Court stated that courts should look to the surrounding circumstances to determine whether the agency committed itself to the project. We conclude the relevant “surrounding circumstances” include documents in which the public agency has described its actions regarding the project, especially where those documents are released to the public. For instance, in Save Tara, the city‟s public announcements were part of the evidence that demonstrated the city had committed itself to a definite course of action regarding the development project. (Id. at p. 142.) Plaintiffs have cited a number of documents prepared by ARB, including (1) the notice of the Board‟s public hearing on April 23, 2009, (2) Board Resolution 09-31, (3)

We conclude that these documents show the LCFS regulations had significant bureaucratic momentum after they were approved for adoption by the Board on April 23, 2009. ARB‟s press release stated that the Board “adopted a regulation that will implement Governor Schwarzenegger‟s Low Carbon Fuel Standard .…” The phrase “adopted a regulation” describes what happened in the past and the phrase “will implement Governor Schwarzenegger‟s Low Carbon Fuel Standard” describes ARB‟s view of what will happen in the future. This unqualified public statement about the future “increased the political stakes” (Save Tara, supra, 45 Cal.4th at p. 135) and left little doubt that ARB was committed to implementing the LCFS regulations as a result of the action taken by the Board on April 23, 2009. Next, we examine the terms of the resolutions passed by the Board on April 23, 2009, “to determine whether, as a practical matter, the agency has committed itself to the project as a whole or to any particular features, so as to effectively preclude any alternatives or mitigation measures .…” (Save Tara, supra, 45 Cal.4th at p. 139.) Plaintiffs argue that the terms of Resolution 09-31 committed ARB to particular features of the LCFS regulations because, among other things, the Executive Officer was not authorized to decline to implement the regulation—that is, he could not choose “the alternative of not going forward with the project.” (Save Tara, supra, 45 Cal.4th at p. 139.) Plaintiffs‟ argument accurately characterizes the authority of the Executive Officer. The Board required the Executive Officer “either [(a)] to adopt the regulations as made available with any appropriate additional nonsubstantial modifications, [(b)] to make additional modifications available for public comment for an additional period of at least 15 days, or [(c)] to present the regulations to the Board for further consideration if he determines that this is warranted.” Under this grant of authority, the Executive Officer could not scrap the LCFS regulations and begin anew based on information learned during his environmental review. The most he could do was decline to adopt the

that the critical date is when the regulations became final. This assumption is wrong and cannot be squared with the statements about finality made by the Supreme Court in Save Tara, supra, 45 Cal.4th 116. In Save Tara, the city‟s “final approval” of the project was contingent upon subsequent CEQA compliance. (Save Tara, supra, 45 Cal.4th at p. 128.) The court addressed the finality aspect of approval by stating: “Just as CEQA itself requires environmental review before a project‟s approval, not necessarily its final approval [citations], so the guideline defines „approval‟ as occurring when the agency first exercises its discretion to execute a contract or grant financial assistance, not when the last such discretionary decision is made.” (Id. at p. 134.) Consequently, ARB‟s assertion that the “final LCFS regulation as modified was not adopted until November 25, 2009, in Executive Order R-09-014, and March 4, 2010, in Executive Order R-10-003” might be a proper use of the word “final.” But, the concept of finality has little impact on the relevant legal question concerning when “approval” occurred. (See Guidelines, § 15352.) E. Postapproval Environmental Review Violated CEQA The fact that the environmental review under ARB‟s certified regulatory program had not been completed by April 23, 2009, is not disputed by ARB. The incompleteness is illustrated by, among other things, the following sentence in the resolutions passed by the Board on April 23, 2009: “The Executive Officer is the decision maker for the purposes of title 17, California Code of Regulations, section 60007 and responding to environmental issues raised on the proposed regulation, and by approving this Resolution 09-31, the Board is not prejudging any of the responses that will be made by the Executive Officer to these environmental issues.” This resolution plainly indicates that part of the environmental review under the certified regulatory program (i.e., response to comments) would occur after April 23, 2009.

EIR itself.… The EIR cannot serve its informational function unless it is reviewed and considered by the governmental body which takes action having an effect upon the environment.” (Ibid.) In Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296 (Sundstrom), an owner of property located near a proposed private sewage treatment plant filed a petition for a writ of mandate that challenged the county board of supervisor‟s issuance of a use permit for the construction of the plant. The use permit included a condition that required the applicant to submit a hydrological study, which would be subject to review and approval by the county planning commission. (Id. at p. 306.) The use permit also required that any mitigation measures recommended by the hydrological study be incorporated into the project‟s plans. (Ibid.) The neighboring landowner in Sundstrom asserted various procedural and substantive violations of CEQA tainted the county‟s adoption of a negative declaration for the project. (Sundstrom, supra, 202 Cal.App.3d at p. 304.) The trial court denied the property owner‟s petition. (Id. at p. 301.) The appellate court reversed and directed the trial court to issue the requested writ of mandate. (Id. at p. 314.) Among other things, the appellate court concluded that the conditions contained in the use permit “improperly delegate[d] the County‟s legal responsibility to assess environmental impact by directing the applicant himself to conduct the hydrological studies subject to the approval of the planning commission staff.” (Id. at p. 307.) The county‟s board of supervisors could not delegate its responsibility to assess the project‟s environmental impacts to the staff of the planning commission. (Ibid.) Plaintiffs also cited El Morro Community Assn. v. California Dept. of Parks & Recreation (2004) 122 Cal.App.4th 1341 as an example where the action necessary for CEQA compliance was taken by a proper decision maker. In that case, the California Department of Parks and Recreation (Department) proposed a project that involved the conversion of a mobile home park to a public campground and other facilities. (El

Morro, supra, at p. 1346.) A homeowners‟ group asserted that the Department had failed to proceed in the manner required by law because the EIR was not certified by the “decision maker” and, instead, was certified by a deputy director. (Id. at p. 1349.) The appellate court concluded the Department had proceeded as required by law because the deputy director was the person authorized by the Department to certify the EIR and approve the project and, therefore, the deputy director was the “„decision-making body‟” under the definition contained in Guidelines section 15356. (Id. at pp. 1349-1350.) Based on the foregoing cases and Guidelines sections 15025 and 15356, plaintiffs assert that the Executive Officer should not have been given the responsibility to finalize the environmental assessment because he did not have the authority to approve or disapprove the project--he was not the decisionmaker. C. Analysis Earlier, we concluded that the Board gave its “approval” to the LCFS regulations before the Executive Officer completed the environmental review of the project and, as a result, violated CEQA. Our conclusion that the Board “approved” the project on April 23, 2009, necessarily requires us to reject ARB‟s position that the Executive Officer properly adopted the final regulation. The Executive Officer‟s adoption of the final regulation was improper because it violated the timing requirement of CEQA that “approval” occur after consideration of the environmental review documents. This flaw in the timing of the project‟s approval has tainted the procedures used by ARB and prevents us from analyzing, in isolation, the claim that the Executive Officer was not a proper decision maker. The application of the concept of “approval” and our earlier conclusion that the “approval” came at an improper time leads us to the further conclusion that the Executive Officer, in the circumstances presented, cannot qualify as the “[d]ecision-making body”

are not implicated.” (CNPS, supra, 172 Cal.App.4th at p. 623, italics added.) We note that these quotes from CNPS do not mention specific performance criteria like the earlier- quoted language from SOCA and Endangered Habitats. In Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70 (CBE), the First Appellate District set forth another description of the exception permitting deferral. After discussing SOCA and CNPS, the court stated that those cases “permitted the lead agency to defer the formulation of mitigation measures after the lead agency (1) undertook a complete analysis of the significance of the environmental impact, (2) proposed potential mitigation measures early in the planning process, and (3) articulated specific performance criteria that would ensure that adequate mitigation measures were eventually implemented.” (CBE, supra, at p. 95.) The foregoing cases demonstrate that the exception allowing the deferral of the formulation of mitigation measures has been expressed in a variety of ways. From these cases, we glean two principles that are important to this case. First, the deferral of the formulation of mitigation measures requires the agency to commit itself to specific performance criteria for evaluating the efficacy of the measures implemented. Second, the “activity” constituting the CEQA project may not be undertaken without mitigation measures being in place “to minimize any significant adverse effect on the environment of the activity.” (§ 21080.5, subd. (d)(3)(A).) In other words, the deferral relates only to the formulation of mitigation measures, not the mitigation itself. Once the project reaches the point where activity will have a significant adverse effect on the environment, the mitigation measures must be in place. 3. Specific Performance Standards ARB‟s version of the exception is based primarily on the following quote: “„Deferral of the specifics of mitigation is permissible where the local entity commits itself to mitigation and lists the alternatives to be considered, analyzed and possibly

Because of ARB‟s view of the law, it has not explicitly addressed the issue whether it committed to specific performance criteria when it deferred formulating mitigation measures for the potential increase in NOx emissions from biodiesel. Nonetheless, the ISOR addressed NOx emissions from biodiesel by stating that ARB‟s staff would conduct an extensive testing program for biodiesel and “will follow that effort with a rulemaking to establish specifications to ensure there is no increase in NOx.” Thus, we will consider whether the statement that ARB‟s future rules will “establish specifications to ensure that there is no increase in NOx” has articulated specific performance criteria as required by SOCA and subsequent cases, such as this court‟s decision in Gray. We conclude that “no increase in NOx” is not a specific performance criterion. In CBE, supra, 184 Cal.App.4th 70, another case involving greenhouse gas emissions, Chevron proposed to replace and upgrade certain manufacturing facilities at its oil refinery in Richmond. The city council approved the necessary permits and certified the EIR. (Id. at p. 75.) Late in the environmental review process—that is, in an addendum circulated four months after issuance of the final EIR—the city belatedly found that the project‟s greenhouse gas emissions would be a significant impact. (Id. at pp. 90-91.) The amended EIR addressed this impact by putting forth “some proposed mitigation measures to ensure that the Project‟s operation „shall result in no net increase in GHG emissions over the Proposed Project baseline.‟” (Id. at p. 91.) The amended EIR plan gave Chevron one year to submit to the city, for approval by the city council, “„a plan for achieving complete reduction of GHG emissions up to the maximum estimated … Project GHG emissions increase over the baseline (890,000 metric tons per year …).‟” (Ibid.) The First Appellate District concluded the mitigation plan for greenhouse gases violated CEQA because the city “delayed making a significance finding until late in the CEQA process, divulged little or no information about how it quantified the Project‟s greenhouse gas emissions, offered no assurance that the plan for how the Project‟s

greenhouse gas emissions would be mitigated to a net-zero standard was both feasible and efficacious, and created no objective criteria for measuring success.” (CBE, supra, at p. 95, italics added; see Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, [EIR‟s plan for active habitat management of open space preserve did not specify any performance standards]; Gray, supra, 167 Cal.App.4th at p. 1119 [CEQA violated because county committed itself to a specific mitigation goal, not a specific performance standard].) We conclude that ARB‟s statement that its future rulemaking will “establish specifications to ensure there is no increase in NOx” suffers from the same defect as the net-zero standard for greenhouse gas emissions adopted in CBE—it established no objective performance criteria for measuring whether the stated goal will be achieved. As a result, we and members of the public have not been informed how ARB will determine that the requirements it adopts in a fuel specifications regulation will ensure that use of the biodiesel does not increase NOx emissions. To illustrate this point, it is unclear what tests will be performed and what measurements will be taken to determine that biodiesel use is not increasing NOx emissions. In summary, ARB‟s statement that its rulemaking would “ensure that there is no increase in NOx” is similar to the “generalized goal of no net increase in greenhouse gas emissions” that was deemed deficient in CBE, supra, 184 Cal.App.4th at page 93. Thus, ARB violated CEQA by improperly deferring the formulation of mitigation measures for the increase in NOx emissions that might result from the increase use of biodiesel fuel caused by the LCFS regulations. 4. Delayed Mitigation Here, ARB has gone forward with the project‟s activity—that is, ARB has implemented the LCFS regulations—without putting in place any mitigation measures for the potential increase in NOx emissions resulting from the use of biodiesel. This absence of mitigation measures for project activity constitutes a violation of CEQA. Only the

caused by the LCFS regulation. The logic of the connection between the emails and the carbon intensity value assigned to ethanol is based on the following steps: (1) The LCFS regulations will increase the demand for crops used to produce ethanol. (2) The increased demand, and related price increases, will cause farmers to convert land from existing uses to produce either crops used to produce ethanol or food to replace the crops use to produce ethanol. (3) The changes in land use will release carbon into the atmosphere and/or lower the rate at which carbon is removed from the atmosphere. For example, a growing forest removes more carbon than a corn field. (4) These changes in carbon emissions and storage are indirect effects of using ethanol to satisfy the requirements of the LCFS regulations and, therefore, should be reflected in the carbon intensity values assigned to ethanol. (5) ARB used the GTAP to estimate the land use changes and the carbon intensity value that should be assigned to ethanol to account for the impact of the land use changes. (6) The emails concern the operation of the GTAP model and the data fed into that model and, therefore, are relevant to the carbon intensity value assigned to ethanol. The basic criticisms of increasing ethanol‟s carbon intensity value based on land use changes are that (1) other fuels are not required to account for their indirect greenhouse gas impacts, which gives those other fuels an inappropriate advantage over ethanol, and (2) the indirect effects are too difficult to quantify at the present because of incomplete data and assumptions made in modeling the effects. The other side of the argument asserts that, although uncertainty exists, a start must be made somewhere. For example, a comment letter dated April 21, 2009, from the “Union of Concerned Scientists” took the position that the LCFS regulations should use carbon intensity values that include indirect emissions from land use changes. That letter asserted:

not supported by the science. The data on land use change indicate that the emissions related to biofuels are significant and can be quite large. Grappling with the technical uncertainty and developing a regulation based on the best available science is preferable to ignoring a major source of emissions. Over time, greater accuracy and detail in a more refined analysis can be reflected in future LCFS rulemakings.” The emails from Hertel and Plevin tie into these arguments because they address topics such as databases, assumptions used and results produced by the GTAP model. A. Summary of Legal Issues and Conclusions Plaintiffs contend that ARB violated the rulemaking procedures of the APA specifying the contents of the rulemaking file by omitting the consultant emails from that file, thereby thwarting the public‟s right to information. Plaintiffs further contend that ARB‟s decision to keep these documents confidential until after the regulation was finalized constitutes a substantial failure to comply with the APA and, thus, justifies invalidating the regulation. ARB disagrees with these contentions. We hold that ARB violated its disclosure obligations under the rulemaking procedures of the APA. Our holding is based on the following conclusions: (1) The statutory interpretation of the APA advocated by ARB in this litigation is entitled to no deference from the courts. (2) The interpretation of the provisions of the APA presents this court with a question of law subject to independent review. (3) The emails contain “other factual information” and were “submitted to the agency” as those terms are used in section 11347.3, subdivision (b)(6). Therefore, ARB violated the statute by omitting the emails from the rulemaking file. As for the appropriate remedy, we conclude that, even if the omissions constitute “a substantial failure to comply with” the APA as that phrase is used in subdivision (a) of section 11350, the circumstances of this case do not favor invalidating the LCFS regulation. Instead, pursuant to our equitable authority, we will direct ARB to include

“Courts must, in short, independently judge the text of the statute, taking into account and respecting the agency‟s interpretation of its meaning, of course, whether embodied in a formal rule or less formal representation. Where the meaning and legal effect of a statute is the issue, an agency‟s interpretation is one among several tools available to the court. Depending on the context, it may be helpful, enlightening, even convincing. It may sometimes be of little worth. [Citation.] Considered alone and apart from the context and circumstances that produce them, agency interpretations are not binding or necessarily even authoritative. To quote the statement of the Law Revision Commission in a recent report, „The standard for judicial review of agency interpretation of law is the independent judgment of the court, giving deference to the determination of the agency appropriate to the circumstances of the agency action.‟ [Citation.]” (Yamaha, supra, 19 Cal.4th at pp. 7-8.) Pursuant to this general overview of the law, we will determine the deference to be given to ARB‟s interpretation of the provisions concerning the rulemaking file by considering the context and circumstances presented in this case. 3. Analysis and Conclusion We conclude ARB‟s interpretation of the statutory provisions concerning the rulemaking file is not entitled to deference because (1) ARB‟s interpretation was not set forth in a formal regulation; (2) ARB is subject to the statute in question, not charged with its administration (Morris v. Williams (1967) 67 Cal.2d 733, 748); (3) ARB has no expertise or technical knowledge that gives it special insight into the meaning of the APA‟s provisions that specify the mandatory contents of a rulemaking file (see California Society of Anesthesiologists v. Brown (2012) 204 Cal.App.4th 390, 405; Church v. Jamison (2006) 143 Cal.App.4th 1568, 1579); (4) the interpretation advanced by ARB in this litigation was not explicitly adopted or approved by the agency‟s senior officials, such as the Board or the Executive Officer (see Allende v. Department of California Highway Patrol (2011) 201 Cal.App.4th 1006, 1018 [agency decision

D. Statutory Construction of Rulemaking Provisions 1. General Principles Our independent determination of the meaning of sections 11347.3, subdivision (b) is guided by the following general principles of statutory construction. A reviewing court‟s fundamental task in construing a statute is to determine the intent of the lawmakers so as to effectuate the purpose of the statute. (Grayson Services, Inc. v. Wells Fargo Bank (2011) 199 Cal.App.4th 563, 570; see Code Civ. Proc., § 1859 [in construing a statute, intention of Legislature is to be pursued].) Courts start this task by scrutinizing the actual words of the statute, giving them their usual, ordinary meaning. (Grayson Services, Inc. v. Wells Fargo Bank, supra, at p. 570.) When statutory language is clear and unambiguous (i.e., susceptible to only one reasonable construction), courts adopt the literal meaning of that language, unless that literal construction would frustrate the purpose of the statute or produce absurd consequences. (Ibid.) Alternatively, when the statutory language is ambiguous, courts must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute. (Grayson Services, Inc. v. Wells Fargo Bank, supra, 199 Cal.App.4th at p. 570.) The interpretation of ambiguous wording is guided by the fundamental principle that courts construe those words in the context and with reference to the entire scheme of law of which they are a part. (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043; see Schatz v. Allen Matkins Leck Gamble & Mallory LLP (2009) 45 Cal.4th 557, 569 [every statute should be construed with reference to the whole system of law of which is it a part].) Courts resolving statutory ambiguity also may be aided by the ostensible objects to be achieved by the legislation, the evils to be remedied, the legislative history, and public policy. (Honchariw v. County of Stanislaus (2011) 200 Cal.App.4th 1066, 1073.) When a court interprets an ambiguous statute, it is not

authorized to rewrite the statute. It must simply declare what is, in terms or in substance, contained in the statute. (Code Civ. Proc., § 1858.) Court do not have the authority “to insert what has been omitted, or to omit what has been inserted” by the Legislature. (Ibid.) 2. Constitutional Directive Concerning Disclosure In addition to the foregoing general principles of statutory construction, our interpretation of the APA must follow applicable constitutional directives. At the November 2, 2004, General Election, California voters adopted such a directive. (Versaci v. Superior Court (2005) 127 Cal.App.4th 805, 819, fn. 3.) They passed Proposition 59, known as the “Sunshine Initiative,” which amended article I, section 3 of the California Constitution by adding subdivision (b). (Versaci, supra, at p. 819, fn. 3.) Subdivision (b)(1) states that the “people have the right of access to information concerning the conduct of the people‟s business .…” (Cal. Const., art. I, § 3, subd. (b), par. (1).) Subdivision (b)(2) is the particular provision that will affect our statutory interpretation in this case—it provides in pertinent part: “A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people‟s right of access, and narrowly construed if it limits the right of access.” (Cal. Const., art. I, § 3, subd. (b), par. (2).) Therefore, when a court is confronted with resolving a statutory ambiguity related to the public‟s access to information, the California Constitution requires the court to construe the ambiguity to promote the disclosure of information to the public. 3. Contentions of the Parties Plaintiffs contend that the four emails should have been included in the rulemaking file because, among other things, they contain “data and other factual information” that was “submitted to the agency in connection with the adoption … of the regulation.” (§ 11347.3, subd. (b)(6).)

ARB argues that (1) plaintiffs are raising this interpretation and application of the statute for the first time on appeal and (2) the emails contain opinions, not facts or data. In addition, ARB argues that the statutory phrase “submitted to the agency” limits the scope of section 11347.3, subdivision (b)(6) to items that come from external sources. Under this interpretation, items from ARB consultants would not be covered because the consultants are ARB agents and, thus, any item they present would be properly regarded as an internal item, not an item submitted to ARB from an outside source. 4. Scope of Issues Considered on Appeal It is well established that appellate courts have the discretion to decide a question of law raised for the first time on appeal. (Ward v. Taggart (1959) 51 Cal.2d 736, 742.) Courts are more inclined to exercise this discretion and consider such legal issues where the public interest or public policy is involved. (Resolution Trust Corp. v. Winslow (1992) 9 Cal.App.4th 1799, 1810.) In the instant case, the application of the provisions of section 11347.3, subdivision (b)(6) to the four emails presents questions of law because the facts are not in dispute. The contents of the emails appear on the face of the documents and the circumstances of their delivery to ARB, such as the time and the source, are not disputed. Furthermore, because of the public interest involved in the proper interpretation and application of the disclosure provisions of the APA, we will exercise our discretion and determine the legal issue whether the emails contain “other factual information” and thus should have been included in the rulemaking file pursuant to section 11347.3, subdivision (b)(6). 5. Meaning and Application of Section 11347.3, subdivision (b)(6) Section 11347.3, subdivision (b)(6) requires the rulemaking file to include “[a]ll data and other factual information, any studies or reports, and written comments submitted to the agency in connection with the adoption … of the regulation.”

The dispute regarding the meaning and application of subdivision (b)(6) of section 11347.3 concerns the phrases “other factual information” and “submitted to the agency.” We will begin with the broader question, which involves the phrase “submitted to the agency” and whether materials sent to the agency by its hired consultants fall within the scope of that phrase. Our first inquiry is whether the phrase “submitted to the agency” is ambiguous. We conclude that each party has set forth a reasonably plausible interpretation. On the one hand, it is possible to adopt the ordinary meaning of the words of the statute and conclude that professors and researchers at universities that are geographically separated from the agency‟s officer are outside the agency and, therefore, items they send to the agency are “submitted” to the agency. On the other hand, it is possible to use concepts of agency law and interpret the phrase to exclude emails from consultants based on the view that such emails are internal communications and an agency does not submit information or reports to itself. Because each of the competing interpretations is reasonable, we conclude the statute is ambiguous and, therefore, we will look beyond its text to determine the proper meaning. Our examination of matters outside the text includes a consideration of the public policies implicated by the disclosure of material received by agencies from consultants. We, like ARB‟s supplemental brief, recognize the tension between the benefits of disclosure and the benefits of confidentiality. In essence, the question is whether California will have a more effective procedure for making administrative regulations if (1) the public has access to information from the agency‟s consultant or (2) that information is kept confidential. Balancing these conflicting policies of disclosure and confidentiality might have been a difficult task had the California voters not addressed the issue. The conflict between the public policies is resolved by applying the constitutional directive favoring public access to information. (Cal. Const., art. I, § 3, subd. (b), par. (2).)

Internat. Dict. (1993) at p. 1160, col. 3 [definition of “information” includes “knowledge of a particular event or situation”].) In addition, Hertel‟s April 16, 2009, email discusses results for global land conversion generated by running his model assuming unchanging yields worldwide. Hertel asserted: “Previous scrutiny has brought down the yield response to higher prices as well (i.e. more recent studies of U.S. corn show a declining yield response).” Immediately following, Hertel cautioned: “But we know very little about yield response in the rest of the world.” These statements provide the reader with knowledge about the operation of the GTAP model and the amount of information available concerning worldwide yield responses. As such, the statements convey “factual information.” Hertel‟s November 16, 2008, email was sent to ARB after he read a “Renewable Fuels Association report.” Hertel stated that the report indicated that meeting the corn ethanol mandate would require only a few million hectares, which was “pretty much the same figure as we estimate, given that they are starting in 2007!” Hertel also stated: “Our analysis predicts very similar impacts on global land use—but shows that the emissions impacts are enough to rule out corn ethanol as a GHG reducing fuel.” These statements provide the reader with knowledge about the operation of the GTAP model and the conclusions reached by an outside entity. Thus, they contain “factual information” for purposes of section 11347.3, subdivision (b)(6). In summary, we conclude that the four emails contain factual information that was submitted to ARB. Accordingly, the omission of the emails from the rulemaking file was a violation of the APA. (§ 11347.3, subd. (b).) 6. Relationship of Deliberative Process Privilege In closing this section of the opinion regarding the interpretation of section 11347.3, we note that our interpretation of provisions concerning the rulemaking file has no effect on (1) the scope of the deliberative process privilege or (2) how that privilege is

ARB‟s decision to approve the project can be separated into a part that complies with CEQA (i.e., a part approved after the environmental review) and a part that does not comply with CEQA (i.e., a part approved before environmental review). Therefore, we conclude it is not appropriate to direct ARB to void its approval in part. As a result, we turn to the question whether to direct ARB to void the entire approval or whether to allow the approval to stand. Save Tara, supra, 45 Cal.4th 116 is similar to the present case because it also involved a premature project approval. In Save Tara, the Supreme Court decided that the approval should be voided. In selecting this judicial remedy, the Supreme Court used mandatory language, stating it agreed “with the Court of Appeal that City must be ordered to „declare void its approval of the May and August 2004 Agreements‟ and to reconsider those decisions in light of a legally adequate EIR for the project. (See § 21168.9, subd. (a)(1).)” (Save Tara, supra, 45 Cal.4th at p. 143.) The Supreme Court again used mandatory language when it framed its instructions for remand: “This matter therefore must be returned to the superior court for that court (1) to order City to set aside its prior approval of the project .…” (Ibid., italics added.) Whether voiding a defective project approval is mandatory or a matter of discretion is a question we need not decide because our choice of remedy is the same. Regardless of which rule of law applies, we conclude that the circumstances of this case justify an order directing ARB to set aside its approval of the LCFS regulations. Voiding the defective approval clears the way for ARB to implement an approval that complies with CEQA. 3. Suspending the Operation of the LCFS Regulations The next question presented is whether voiding the defective approval automatically suspends the operation of the LCFS regulations. We conclude it does not. For purposes of section 21168.9, the operation and enforcement of the LCFS regulations are not a “determination, finding, or decision” as that phrase is used in

To summarize our statutory interpretation, we conclude that a court‟s decision to void the approval of a regulation, ordinance or program does not necessarily require the court to invalidate or suspend the operation of the regulation, ordinance or program. Instead, in extraordinary cases, the court may exercise its inherent equitable authority to maintain the status quo and allow the regulations to remain operative. The more common alternative is for the court to exercise its discretionary authority under section 21168.9, subdivision (a)(2) by suspending the operation of the regulation, ordinance or program. How should the foregoing discretionary authority be exercised in this case? This issue—specifically, whether to suspend the LCFS regulations—is the most controversial issue regarding judicial relief presented in this appeal. Suspension of project activity is one of the three “mandates” available under subdivision (a) of section 21168.9 and subpart (2) of that provision addresses when suspension is appropriate. First, suspension requires a finding “that a specific project activity or activities will prejudice the consideration or implementation of particular mitigation measures or alternatives to the project .…” (§ 21168.9, subd. (a)(2).) Second, the suspension appears to be limited to project activity “that could result in an adverse change or alteration to the physical environment .…” (§ 21168.9, subd. (a)(2).) Under the circumstances presented by the instant case, we find that allowing the LCFS regulations to remain in effect will not prejudice the consideration or implementation of mitigation measures or alternatives. The project is a written standard governing the conduct of third parties. Written standards, unlike projects involving construction of facilities, do not become part of the physical environment. Where facilities or structures are involved, their construction alters the physical environment and those physical changes may affect the mitigation or alternatives that remain feasible. For example, once a freeway interchange is built, it may not be feasible to lessen its adverse environmental impact by moving it to a better location. In contrast, when ARB is considering the reapproval of the project, the consideration of mitigation measures and

5. Compliant Approval To bring the approval of the LCFS regulations (or a modified version of those regulations) into compliance with CEQA, the “approval” decision must be made by a decision maker with the responsibility for completing environmental review after that decision maker has completed the environmental review. Consequently, the Board first must identify a decision maker and make sure that the decision maker has full authority to (1) complete the required environmental review and (2) approve or disapprove the project. It appears the two most likely decision makers in this case are the Board and the Executive Officer. If the Board designates the Executive Officer as the decision maker, it must (1) give the Executive Officer full authority to approve or disapprove every aspect of the regulations and (2) direct him or her to exercise that authority only after completing the environmental review. 6. Compliant Environmental Review One of the specific problems created by ARB‟s 2009 approach to the approval of the LCFS regulations was that the transfer of authority to the Executive Officer effectively precluded the Executive Officer from analyzing and revising the carbon intensity values assigned to ethanol to account for indirect effects caused by land use changes. As a result, when the Executive Officer responded to comments regarding the carbon intensity values attributed to land use changes, the Executive Officer was simply providing a post hoc rationalization for a decision about carbon intensity values already made by the Board. (See Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 394.) The carbon intensity values attributed to land use changes by the Board also are related to the consultant emails omitted from the rulemaking file in violation of the APA. Those emails concerned the operation of the GTAP model—the model used to calculate land use changes and the indirect carbon emissions attributable to biofuels to account for those land use changes. The exclusion of those emails from the rulemaking file

precluded the written comments submitted before the April 23, 2009, public hearing from using information in the emails in formulating challenges to the use of the GTAP model and the carbon intensity values attributed to land use changes. Therefore, to assure that any subsequent environmental review conducted by ARB‟s decision maker occurs prior to the “approval” of the LCFS regulation and any final decision regarding the carbon intensity values attributed to land use changes, we will direct that the issue of the land use changes (which includes, but is not limited to, issues involving the application of the GTAP model) be reopened and the public allowed to comment on the issue. The reopening of the issue of the carbon intensity values attributed to land use changes and allowing public comment also will serve to remedy ARB‟s violation of the APA by omitting consultant emails regarding the GTAP model from the rulemaking file. With regard to ARB‟s errors in addressing the emissions of NOx resulting from the use of biodiesel, compliance with CEQA might be achieved by different routes. (See part VI.B.5, ante.) This court will not set forth specific requirements for the timing of the reproposal of the LCFS regulations because ARB should be allowed the option of coordinating the reconsideration and potential reapproval with any other actions that it might take regarding the regulations. Consequently, we will direct ARB to file an initial return reporting to the superior court the steps and schedule it proposes to take to comply with the writ of mandate. (See 2 Kostka & Zischke, supra, § 23.125A, p. 1273 [“initial return describing the action [the agency] will take to comply” is usual practice].) The use of the initial return might allow some objections to be resolved before ARB proceeds with its corrective action. DISPOSITION The judgment is reversed and the matter remanded for further proceedings. The superior court is directed (1) to vacate its decision denying the petition for writ of

Poet v. State Air Resources Board

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

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