1

Filed 1/7/15 No Wetlands Landfill Expansion v. County of Marin CA1/4 

Received for posting 3/12/15 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FOUR 

NO WETLANDS LANDFILL 

EXPANSION et al., 

 Plaintiffs and Respondents, 

v. 

COUNTY OF MARIN et al., 

 Defendants and Appellants; 

REDWOOD LANDFILL, INC., 

 Real Party in Interest and Appellant. 

 A137459 

 (Marin County 

 Super. Ct. No. CIV 090198) 

 ORDER MODIFYING OPINION 

 AND DENYING REHEARING 

 [NO CHANGE IN JUDGMENT] 

BY THE COURT: 

 The petition for rehearing is denied. The opinion filed December 12, 2014, is 

modified by deleting footnote 16 of the original opinion, and inserting the following 

footnote 16 in its place: 

We disagree with the landfill opponents’ argument that the submission of this 

letter and its attachments was improper. First, the material was included in the 

administrative record before—albeit very shortly before—the EIR was 

certified. (§ 21167.6, subd. (e)(6) [all written comments submitted in 

connection with project part of administrative record]; cf. CBE, supra, 

184 Cal.App.4th at p. 88 [improper to rely on expert report based on 

undisclosed data “restricted to [expert’s] eyes only” and submitted after EIR 

certified by city planning commission].) Second, in submitting the letter and 

its attachments, Redwood was responding to issues already raised during 

environmental review. Thus, the landfill opponents are incorrect in 

contending that the potential significant environmental impacts were left 
2

undisclosed until late in the process and never analyzed. (E.g., Vineyard Area 

Citizens, supra, 40 Cal.4th at pp. 441-442.) Finally, and contrary to an 

assertion made by counsel for No Wetlands at oral argument, Vineyard Area 

Citizens permits an EIR to reference and incorporate previously prepared 

analyses. (Id. at pp. 442-443.) 

 The modification does not change the appellate judgment. (Cal Rules of 

Court, rule 8.264(c)(2).) 

 _________________________P.J. 
1

Filed 12/12/14 (unmodified version) 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FOUR 

NO WETLANDS LANDFILL 

EXPANSION et al., 

 Plaintiffs and Respondents, 

v. 

COUNTY OF MARIN et al., 

 Defendants and Appellants; 

REDWOOD LANDFILL, INC., 

 Real Party in Interest and Appellant. 

 A137459 

 (Marin County 

 Super. Ct. No. CIV 090198) 

 Three groups petitioned for a writ of mandate under the California Environmental 

Quality Act (CEQA)1

 challenging the certification of an environmental impact report 

(EIR) issued on a proposed expansion of the Redwood Landfill, a facility that handles 

most of Marin County’s solid waste. The trial court ruled partly in favor of each side, 

and they both appealed. We conclude that the EIR adequately informed the public about 

the potential significant environmental effects of the proposed expansion. We therefore 

affirm in part and reverse in part and remand to the trial court with directions to enter an 

order denying the petition. 

 

1

 CEQA is set forth in Public Resources Code section 21000 et sequitur. Further 

statutory references are to the Public Resources Code unless otherwise specified. 
2

I. 

FACTUAL AND PROCEDURAL

BACKGROUND

 This is the second time we have been asked to weigh in on the validity of the 

certification of the EIR permitting the expansion of the Redwood Landfill. In 2012, we 

concluded that the certification was not appealable to the Marin Board of Supervisors, 

and we remanded the case to the trial court to resolve any challenges to the adequacy of 

the EIR. (No Wetlands Landfill Expansion v. County of Marin (2012) 204 Cal.App.4th 

573, 580, 586-587 (No Wetlands I).) In this appeal, we consider the trial court’s rulings 

on those challenges. 

 Much of the factual background was discussed in No Wetlands I, and we briefly 

summarize it here. Redwood Landfill, Inc. operates the Redwood Landfill on a 420-acre 

site near the Petaluma River. The landfill “began receiving waste in 1958,” and it accepts 

most of Marin County’s solid waste. It has a solid-waste-facilities permit issued under 

the California Integrated Waste Management Act of 1989 (the permit). (§ 40000 et seq.) 

In 1992, appellant Marin County Environmental Health Services (Marin EHS) was 

certified to be the local enforcement agency by the California Department of Resources 

Recycling and Recovery (CalRecycle). (§§ 40110, 43200 et seq.) 

 In 1990, Redwood applied to revise the permit to allow it to expand, increase the 

amount of waste it could accept, and change its operations, environmental controls, and 

facility infrastructure. An EIR was prepared (the 1994 EIR), and a revised permit was 

issued in 1995. Although a copy of the 1994 EIR is not included in the administrative 

record, it was incorporated by reference and summarized in the EIR giving rise to this 

appeal.2

 In March 1998, Redwood again applied to revise the permit to allow it to expand 

its capacity and change some operations. As the public agency with the principal 

responsibility for considering the application, Marin EHS assumed the role of lead 

 

2

 On July 24, 2013, we granted Redwood’s request for judicial notice of portions of the 

1994 EIR. 
3

agency under CEQA. (Guidelines, § 15367.)3

 It determined that a new EIR was required 

since the 1995 EIR did not address all of the proposed changes. (Guidelines, § 15162, 

subd. (a).) This new EIR was prepared, and it recommended a mitigated alternative as 

the environmentally superior alternative. The mitigated alternative was adopted. The 

Marin County Planning Commission reviewed the EIR and recommended to Marin EHS 

that it be certified. In June 2008, Marin EHS certified the EIR.4

 In October 2008, Marin EHS deemed the application complete and found it to be 

consistent with applicable state standards. (§ 44010.) CalRecycle concurred in this 

determination after a public hearing. (§ 44009.) The revised permit was then issued by 

Marin EHS in December 2008. (§ 44014, subd. (a).) 

 The following month, the instant lawsuit, a petition for a writ of mandate, was 

filed by three groups to challenge the permit. These groups included No Wetlands 

Landfill Expansion (an association of local residents); Sustainability, Parks, Recycling 

and Wildlife Legal Defense Fund (an environmental organization); and Northern 

California Recycling Association (another environmental organization).5

 (Code Civ. 

Proc., §§ 1085, 1094.5.) We shall refer collectively to these groups as the landfill 

opponents. They sued Marin County, the Marin County Board of Supervisors, and 

several Marin County agencies including Marin EHS and one of its officers. We shall 

refer collectively to the defendants as the Marin County entities. 

 

3

 “Guidelines” refers to the Guidelines for Implementation of CEQA, which are found in 

California Code of Regulations, title 14, section 15000 et sequitur. All subsequent 

regulatory citations to the Guidelines are to title 14 of the Code of Regulations. 

4

 Public hearings were held on April 28 and May 5, 2008, regarding the Final EIR. A 

new report titled Redwood Landfill Final Environmental Impact Report, Second 

Amendment was then prepared to respond to issues raised at those hearings, as well as to 

incorporate other changes to the EIR. We sometimes refer generally to “the EIR,” which 

encompasses various documents in the administrative record. 

5

 The current role of the Recycling Association in this litigation is unclear, as the group 

does not appear on the notice of appeal and is not listed on respondents’ certificate of 

interested entities or persons. 
4

 In October 2010, the trial court granted the landfill opponents’ petition based on 

their argument that they should have been allowed to appeal the EIR’s certification to the 

Marin County Board of Supervisors. We reversed. (Wetlands I, supra, 204 Cal.App.4th 

at pp. 586-587.) On remand, the trial court ruled in December 2012 that the EIR was 

substantively flawed, and it again granted the landfill opponents’ petition. Redwood 

timely appealed, and Marin County filed a notice of joinder.6

 The landfill opponents 

filed a timely cross-appeal. 

II. 

DISCUSSION

A. An Overview of CEQA’s EIR Requirement. 

 The Legislature intended CEQA to provide the fullest possible protection to the 

environment within the reasonable scope of the statutory scheme. (California Native 

Plant Society v. City of Santa Cruz (2009) 177 Cal.App.4th 957, 978.) The EIR is a 

mechanism “ ‘to force informed decision making and to expose the decision making 

process to public scrutiny.’ ” (Ibid.) Its purpose is to inform the public and government 

officials of the environmental consequences of decisions before they are made. (Citizens 

of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564.) The EIR “ ‘is the 

heart of CEQA’ ” (Guidelines, § 15003, subd. (a)), and it protects both the environment 

and informed self-government. (Goleta Valley, at p. 564.) 

 “[A] public agency is not required to favor environmental protection over other 

considerations, but it must disclose and carefully consider the environmental 

 

6

 Generally, a party may not simply file a notice of joinder but must file a notice of 

appeal in the trial court to perfect an appeal from an appealable order or judgment. (Cal. 

Rules of Court, rule 8.100(a)(1); cf. rule 8.200(a)(5) [party to appeal may join in 

appellate brief]; but see Rialto Citizens for Responsible Growth v. City of Rialto (2012) 

208 Cal.App.4th 899, 909 (Rialto Citizens) [city and its redevelopment agency “join[ed]” 

retail store’s appeal in CEQA case].) Because the joinder here was filed well within the 

time to appeal and without objection, we may and do construe it as a notice of appeal and 

treat the Marin County entities as appellants and cross-respondents, as they identify 

themselves in the appellate briefs signed by county counsel. (Rule 8.100(a)(2) [notice of 

appeal must be liberally construed and is sufficient if it identifies judgment or order 

appealed from].) 
5

consequences of its actions, mitigate or avoid adverse environmental effects if feasible, 

explain the reasons for its actions, and afford the public and other affected agencies an 

opportunity to participate meaningfully in the environmental review process.” (Ballona 

Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 466-467 

(Ballona Wetlands).) An EIR must include a detailed statement summarizing (1) all of a 

project’s significant effects on the environment, (2) any unavoidable or irreversible 

significant effects on the environment, (3) mitigation measures, (4) alternatives to the 

proposed project, and (5) the growth-inducing impacts of the proposed project. (§ 21100, 

subd. (b).) All of these requirements, except the last, are implicated in this appeal. 

B. The Standards of Review. 

 Our review of the administrative record for error in a CEQA case, as in other 

mandamus cases, is the same as the trial court’s. (Vineyard Area Citizens for Responsible 

Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427 (Vineyard Area 

Citizens).) That is, we review the public agency’s action, not the trial court’s decision. 

(Ibid.) In reviewing the agency’s action, our inquiry shall extend “only to whether there 

was a prejudicial abuse of discretion.” (§ 21168.5.) An abuse of discretion may be 

established in one of two ways: (1) if the agency did not proceed in a manner required by 

law or (2) if its determination or decision was not supported by substantial evidence. 

(Ibid.) “Judicial review of these two types of error differs significantly.” (Vineyard Area 

Citizens, at p. 435.) 

 We review de novo whether the agency used the correct procedures, and we 

scrupulously enforce all legislatively mandated CEQA requirements. (Vineyard Area 

Citizens, supra, 40 Cal.4th at p. 435.) “The failure to provide information required by 

CEQA in an EIR is a failure to proceed in a manner required by law. [Citation.] The 

failure to comply with CEQA’s procedural or information disclosure requirements is a 

prejudicial abuse of discretion if the decision makers or the public is deprived of 

information necessary to make a meaningful assessment of the environmental impacts.” 

(Ballona Wetlands, supra, 201 Cal.App.4th at p. 468.) 
6

 We accord greater deference, however, when we review the agency’s factual 

conclusions for substantial evidence. (Vineyard Area Citizens, supra, 40 Cal.4th at 

p. 435.) Substantial evidence “includes fact, a reasonable assumption predicated upon 

fact, or expert opinion supported by fact,” but it does not include “argument, speculation, 

unsubstantiated opinion or narrative, evidence that is clearly inaccurate or erroneous, or 

evidence of social or economic impacts that do not contribute to, or are not caused by, 

physical impacts on the environment.” (§ 21080, subd. (e)(1), (2).) Substantial evidence 

is defined by the Guidelines as “information that a fair argument can be made to support 

a conclusion, even though other conclusions might also be reached.” (Guidelines, 

§ 15384, subd. (a).) In reviewing for substantial evidence, we may not set aside the 

approval of an EIR on the ground that a different conclusion would have been equally or 

more reasonable. (Vineyard Area Citizens, supra, 40 Cal.4th at p. 435.) Our job “ ‘is not 

to weigh conflicting evidence and determine who has the better argument.’ ” (Ibid.) We 

do not consider the correctness of an EIR’s conclusions but instead pass only upon 

whether it is supported by substantial evidence and is sufficient as an informative 

document. (Ballona Wetlands, supra, 201 Cal.App.4th at p. 468; Concerned Citizens of 

South Central L.A. v. Los Angeles Unified School Dist. (1994) 24 Cal.App.4th 826, 835-

836 (Concerned Citizens).) 

 “Technical perfection is not required” in an EIR, and we look “not for an 

exhaustive analysis but for adequacy, completeness and a good-faith effort at full 

disclosure.” (Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 

351, 368.) An EIR is presumed to have complied with the statute (§ 21167.3, subd. (b)), 

and the plaintiff challenging an EIR has the burden to prove otherwise. (Concerned 

Citizens, supra, 24 Cal.App.4th at p. 836.) 

 With these general principles and the relevant standards of review in mind, we 

turn to the issues raised by the parties. 
7

C. The EIR’s Discussion of a Nonspecific Alternative Off-Site Project Was 

Adequate. 

1. The 1994 EIR’s Discussion of a Possible Off-site Alternative. 

 According to the 1994 EIR, a new landfill could not be developed on about twothirds of Marin County because the land consists of urban centers, open-space preserves, 

wetlands, county conservation zones, or areas subject to 100-year flooding. The report 

discussed how the county had identified five possible alternative landfill sites in 1988 as 

part of a solid-waste management plan. The five sites all (1) were accessible to existing 

and adequate roads within Marin County, (2) measured more than 250 acres, (3) included 

canyon areas that were confined, with limited drainage basins, (4) had topographic 

features favorable to site grading and waste disposal, with slopes generally less than 

20 percent, (5) were situated away from permanent creeks or areas subject to flooding or 

high groundwater conditions, and (6) had low visibility, were compatible with adjacent 

land uses, and had low potential for negative public reaction. The 1994 EIR noted that 

any new alternative site would be required to comply with federal regulations. 

 The 1994 EIR analyzed the five selected locations as possible alternatives to the 

expansion of the permit then under consideration, and it concluded that they would result 

in greater potential environmental harm. 

2. The Final EIR’s Description of an Off-site Alternative. 

 Redwood did not re-analyze these five alternative locations in its EIR for the 

current permit expansion. Instead, the final EIR briefly summarized the 1994 EIR’s 

findings, and it again rejected these locations, reasoning that they were unlikely to 

substantially reduce or avoid the environmental impacts of the current permit expansion. 

 The final EIR also took an approach that had not been taken in the 1994 EIR by 

analyzing a hypothetical off-site alternative.7

 This hypothetical was an “unidentified 

landfill site” that would meet minimum criteria from a 1995 siting element for Marin 

 

7

 In addition, the final EIR analyzed four other alternatives that are not challenged by the 

landfill opponents. 
8

County and its cities.8

 Marin EHS explained that the purpose of the analysis was to 

evaluate whether it would be preferable to gain more landfill capacity by expanding the 

existing site or by establishing a new landfill somewhere else in the county, and that the 

EIR “need not specify a particular location . . . for an effective, though general, 

comparison.” In doing so, the EIR essentially recognized that any new landfill meeting 

the required criteria, regardless of its location, would result in significant environmental 

effects. 

 According to the EIR, the first goal of the 1995 siting element was to assure 15 

years of disposal capacity for Marin County. The element also listed 10 criteria that 

needed to be considered for any new site. These criteria were that the site should (1) not 

be on an earthquake fault, (2) not be in a 100-year flood plain, (3) be at least five feet 

above the highest anticipated ground-water level, (4) be in a location authorized for a 

solid-waste facility under the applicable city or county general plan, (5) be compatible 

with land uses specified for adjacent property covered by different general plans, (6) be at 

least 5,000 or 10,000 feet away from any airport runway, depending on the type of 

aircrafts that use the runway, (7) comply with federal, state, and local laws, (8) not cause 

a net loss of wetlands, (9) not be where it could harm water quality, and (10) not be in a 

stream-conservation area. 

 The EIR assumed that the hypothetical alternative “would be located in a remote 

upland area zoned for agriculture, with close proximity to the U.S. 101 corridor, and 

without incompatible adjacent land uses.” In describing the types of environmental 

impacts that could be expected, it mentioned that any alternative site would unavoidably 

impact views and the visual character of the selected land, impose greater constructionrelated impacts on air quality than the planned project, impact biological resources in an 

area zoned for agricultural use, alter the hydrology of the selected site, likely conflict 

with several policies in the agricultural element of Marin’s countywide plan, require 

 

8

 Under the California Integrated Waste Management Act, counties must prepare an 

integrated waste management plan containing several elements, including one for source 

reduction and recycling. (§§ 40900 et seq., 40901, 40912, 40950.) 
9

public services and utilities where they are not likely currently provided, possibly impact 

recreational uses negatively, and possibly disturb cultural and mineral resources. Still, 

the EIR pointed out that the alternative site would provide environmental advantages 

because it would be required to satisfy applicable regulations requiring the landfill to be 

lined, and it would result in fewer mitigation measures than would be required by 

expanding the current permit. 

 The EIR concluded that the effects on public health and safety as well as 

transportation and traffic would be about the same at the off-site alternative as those 

expected from the proposed project. But the off-site alternative was ultimately rejected 

because its environmental impacts were greater than those of the mitigated alternative 

that was eventually adopted. 

3. The EIR Sufficiently Analyzed an Off-site Alternative. 

 The landfill opponents claim that by failing to identify a specific location for the 

off-site alternative, Marin EHS deprived the public of an opportunity to meaningfully 

comment on the alternative. They also claim that the EIR’s conclusion that the “off-site 

alternative is infeasible” was not supported by substantial evidence. We disagree with 

both contentions. 

 One goal of CEQA is to identify both significant environmental effects of a 

proposed project and feasible alternatives that would avoid or substantially lessen those 

effects. (§ 21002.) To further that goal, an EIR must consider and analyze project 

alternatives that would reduce adverse environmental impacts. (§§ 21061, 21100, 

subd. (b)(4); In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1163.) The Guidelines provide 

that an EIR “shall describe a range of reasonable alternatives to the project, or to the 

location of the project, which would feasibly attain most of the basic objectives of the 

project but would avoid or substantially lessen any of the significant effects of the 

project, and evaluate the comparative merits of the alternatives.” (Guidelines, § 15126.6, 

subd. (a).) But the Guidelines specify that “[t]here is no ironclad rule governing the 

nature or scope of the alternatives to be discussed other than the rule of reason.” (Ibid.; 

see also In re Bay-Delta etc., at p. 1163.) The rule of reason “requires the EIR to set 
10

forth only those alternatives necessary to permit a reasoned choice.” (Guidelines, 

§ 15126.6, subd. (f).) “The EIR shall include sufficient information about each 

alternative to allow meaningful evaluation, analysis, and comparison with the proposed 

project.” (Guidelines, § 15126.6, subd. (d).) 

 The parties’ dispute boils down to whether it was reasonable for the EIR to 

analyze an off-site alternative without specifying a particular location, other than 

referencing and summarizing the five locations discussed in the 1994 EIR. We conclude 

it was reasonable to do so under the circumstances. There is “no authority or rationale 

for an inflexible rule that the availability of other sites always must be considered or that 

it never need be considered. Situations differ; what is reasonable in one case may be 

unreasonable in another. It is necessary to examine the particular situation presented to 

determine whether the availability of other feasible sites must be considered in the EIR.” 

(Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1179.) 

We agree with Redwood and the Marin County entities that CEQA and the Guidelines do 

not invariably compel all EIRs to consider off-site locations because particular 

circumstances may render such a consideration reasonably unnecessary. (Mira Mar 

Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 491 [CEQA does 

not expressly require a discussion of alternative project locations].) 

 The EIR’s consideration of the hypothetical alternative location here was 

reasonable. The landfill opponents claim that Marin EHS “refused to provide an actual 

location, thus depriving the public of an opportunity to meaningfully comment on the offsite alternative,” apparently suggesting that Marin EHS was hiding information about a 

particular viable off-site location. But they direct us to no evidence supporting such a 

suggestion. (§ 21080, subd. (e)(1) [substantial evidence includes “reasonable 

assumption” based on fact].) Redwood and the Marin County entities explain that the 

nonspecific off-site alternative was evaluated “at a conceptual level for purposes of 

providing additional information.” This approach was taken because five specific sites 

had been considered and rejected in the 1994 EIR, and the siting element required any 

new site to be able to accept waste for 15 years and be suitable under the 10 criteria. We 
11

conclude that Marin EHS sufficiently considered and analyzed a range of reasonable 

project alternatives that would reduce adverse environmental impacts. (§ 21061; 

Guidelines, § 15126.6, subd. (a).) 

 The landfill opponents rely on San Joaquin Raptor/Wildlife Rescue Center v. 

County of Stanislaus (1994) 27 Cal.App.4th 713, but this reliance is misplaced. In San 

Joaquin Raptor, the development consisted of 633 single-family homes, a commercial 

area, a park, and a district office building and meeting hall, to be located on 154.24 acres 

north of an unincorporated community in Stanislaus County. (Id. at p. 718.) The EIR’s 

only discussion of a possible alternative site was a statement that there were “ ‘numerous

alternative sites for the project, including existing incorporated cities, other 

unincorporated communities, and proposed new communities.’ ” (Id. at p. 736, italics 

added.) After acknowledging the availability of numerous alternative sites, the EIR 

failed to clearly identify any in particular, and it simply concluded that “[t]he impacts 

associated with this development would be much the same if implemented at alternative 

sites . . . .” (Ibid.) San Joaquin Raptor concluded that the EIR “did not adequately 

identify and analyze the feasibility of admittedly available alternative sites.” (Ibid., 

italics added.) In contrast, here there are no identified available alternatives other than 

those discussed in the 1994 EIR. The options of siting a large new and legally compliant 

landfill to serve Marin County, where at least two-thirds of the county is inappropriate for 

such a facility, are fewer than the options of siting a community development in 

unincorporated Stanislaus County. Moreover, unlike the short, cursory summary of 

potential off-site alternatives in San Joaquin Raptor, the EIR here listed all the criteria for 

a new landfill and analyzed the serious environmental effects that such a new landfill—

wherever it was located—would present. (Cf. ibid.) We conclude that the EIR’s analysis 

of the hypothetical alternative under the circumstances of this case does not warrant 

setting aside the EIR. 

 We also reject the landfill opponents’ argument that there was insufficient 

evidence to support the EIR’s finding that an off-site alternative was infeasible. This 

contention is based on their argument that the EIR improperly failed to identify the 
12

alternative’s specific location, an argument we already have rejected. This case is 

distinguishable from Center for Biological Diversity v. County of San Bernardino (2010) 

185 Cal.App.4th 866, upon which the landfill opponents rely. The EIR in that case 

analyzed the potential environmental effects of a proposed open-air facility for 

composting materials derived both from plants and human waste. (Id. at pp. 874-875.) It 

rejected an enclosed facility as uneconomical and impractical because it would cost 

anywhere from 28 to 41 times the cost of a conventional facility. (Id. at pp. 876-877.) 

These findings were based solely on an unsupported memorandum from an 

environmental-consulting firm, and the county failed to respond to information provided 

during the review process indicating that there were enclosed facilities operating in Los 

Angeles and Riverside Counties, as well as in other locations throughout the country. 

(Id. at pp. 876-877, 884.) The court concluded that the EIR was inadequate because the 

memorandum omitted vital information and there was no evidence that the alternative 

was technologically infeasible or impractical on account of additional costs. (Id. at 

pp. 883-885.) In contrast, the landfill opponents here do not challenge any specific 

finding about the off-site alternative, only that the EIR’s conclusions were speculative 

because no specific location was identified. Because it was reasonable under the 

circumstances to analyze a hypothetical location in addition to those considered in the 

1994 EIR, the EIR was not deficient for failing to identify a particular off-site alternative 

location. 

D. The EIR Did Not Improperly Defer Mitigation Measures to Address Potential 

Sea-level Rise and Groundwater Contamination. 

1. Summary of Applicable Law. 

 As we have discussed, one of CEQA’s purposes is to help public agencies identify 

both significant environmental effects of proposed projects and feasible mitigation 

measures that would avoid or substantially lessen those effects. (§ 21002.) An agency 

should not approve a proposed project that will significantly affect the environment if 

there are feasible mitigation measures that would substantially reduce those 

environmental effects. (§§ 21002, 21002.1, subd. (b); Guidelines, § 15021, subd. (a)(2); 
13

Ballona Wetlands, supra, 201 Cal.App.4th at p. 466.) CEQA thus mandates that an EIR 

include a detailed statement describing proposed mitigation measures. (§ 21100, 

subd. (b)(3); Guidelines, § 15126.4.) In general, formulating mitigation measures should 

not be deferred until some time in the future. (Guidelines, § 15126.4, subd. (a)(1)(B).) 

“However, measures may specify performance standards which would mitigate the 

significant effect of the project and which may be accomplished in more than one 

specified way.” (Ibid.) 

 Although “[t]here is not a single, all-encompassing statement of the judge-made 

exception to the general rule prohibiting the deferral of the formulation of mitigation 

measures” (POET, LLC v. State Air Resources Bd. (2013) 218 Cal.App.4th 681, 735), we 

summarize the principles that apply here. “[W]hen, for practical reasons, mitigation 

measures cannot be fully formulated at the time of project approval, the lead agency may 

commit itself to devising them at a later time, provided the measures are required to 

‘satisfy specific performance criteria articulated at the time of project approval.’ ” 

(Rialto Citizens, supra, 208 Cal.App.4th at p. 944, italics omitted.) Mitigation measures 

improperly defer environmental assessment where they rely on “tentative plans for future 

mitigation after completion of the CEQA process.” (Communities for a Better 

Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 92 (CBE).) “An EIR is 

inadequate if ‘[t]he success or failure of mitigation efforts . . . may largely depend upon 

management plans that have not yet been formulated, and have not been subject to 

analysis and review with the EIR.’ [Citation.] ‘A study conducted after approval of a 

project will inevitably have a diminished influence on decisionmaking. Even if the study 

is subject to administrative approval, it is analogous to the sort of post hoc rationalization 

of agency actions that has been repeatedly condemned in decisions construing CEQA.’ ” 

(Ibid.) Where an EIR improperly defers analysis of mitigation measures, the approving 

agency abuses its discretion by failing to proceed as required by law. (Id. at pp. 89-90; 

§ 21168.5.) 

 Lead agencies have been allowed to defer formulating specific mitigation 

measures where they: “(1) undertook a complete analysis of the significance of the 
14

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, 184 Cal.App.4th at 

p. 95.) 

2. The EIR Did Not Improperly Defer Mitigation of Projected Sea-level Rise. 

a. Background 

 Redwood Landfill “is located in flat, low-lying, drained marshlands,” and it “is 

surrounded by a complex network of natural and manmade surface water bodies 

including ditches, ponds, creeks, and sloughs.” It is bound on its northern and eastern 

sides by San Antonio Creek, which in turns flows to the Petaluma River and eventually 

into San Pablo Bay. 

 The EIR lists several environmental impacts of the proposed project related to 

hydrology and water quality. One of them is potential flooding of areas proposed for 

“composting and co-composting operations” and relocated administration facilities, 

which will be located within a 100-year flood plain (identified as impact No. 3.5.6 in the 

“Redwood Landfill Solid Waste Facilities Permit Revision Mitigation Monitoring and 

Report Program,” dated November 17, 2008). To address this potential effect, the EIR 

contains four mitigation measures, one of which is challenged by the landfill opponents. 

 Protecting the landfill from flooding is not a new concern. An earthen levee 

system that reportedly dates from the 1940s sits along the edge of San Antonio Creek. 

The levee system has been periodically raised and maintained. The first mitigation 

measure directed at preventing flooding (No. 3.5.6a) is meant to address flooding 

concerns identified in impact No. 3.5.6. It states that the current elevation for a 100-year 

flood is about six to seven feet above sea level, and it calls for raising the height of the 

exterior levee to nine feet above median sea level and increasing the width of the levee to 

10 feet, with completion by December 31, 2011. The landfill opponents do not challenge 

this mitigation measure. 

 They also do not challenge two additional mitigation measures meant to ensure 

that levee improvements are designed properly. By way of background, Redwood had 
15

planned for several years to raise the entire length of the levee to nine feet above mean 

sea level as part of the plans approved in connection with the 1994 EIR. In 

November 2006, construction was completed on a section of the levee raising it to 

9.5 feet above mean sea level. The following month, a 350-foot portion of the newly 

upgraded levee failed. According to Redwood, the failure did not result in any 

unauthorized flooding or discharge into San Antonio Creek. An engineering analysis 

concluded that the bay mud at the location could not support the weight of the 

reconstructed levee. A temporary repair was made, and the engineers recommended 

recalculating the strength and stability of the structure “using the correct, established 

factors and methods.” 

 As part of the EIR process at issue here, it became clear that mitigation measures 

were necessary to ensure that the levee repair and future levee upgrades were adequately 

designed and constructed. The final EIR second amendment included two measures 

(Nos. 3.5.6b and 3.5.6c) aimed at studying the slope stability of levee upgrades to 

determine whether remedial action was necessary and to ensure that future upgrades were 

properly designed and constructed. Again, the landfill opponents do not challenge those 

two measures. 

 But the landfill opponents do challenge mitigation measure No. 3.5.6d, which is 

aimed at protecting the landfill against future rises in sea levels caused by global 

warming. Sea-level rise and fluctuations in tides affect the Petaluma River, near the 

Redwood Landfill property. During the EIR process, Redwood acknowledged the 

possibility of having to raise the levee system even higher to account for settling and 

accumulating underlying bay mud and to account for sea-level rise due to climate 
16

change.9

 The Intergovernmental Panel on Climate Change estimated a rise in the global 

sea level of between 0.9 to 1.4 feet by the end of this century, and a more dramatic rise of 

up to 32.8 feet after the 21st century.10

 Mitigation measure No. 3.5.6d provides that before project approval Redwood 

“shall prepare and submit to [Marin EHS] and the San Francisco Bay Regional Water 

Quality Control Board a plan for long-term flood protection of the site. The plan will 

include a consideration of feasible options for achieving protection from the 100-year 

flood in the face of rising sea level[s] and increased flood frequency and intensity. The 

plan shall include selection of the preferred method or methods for achieving flood 

protection, and both a schedule and financial assurances for their implementation. The 

engineering basis for the plan shall be independently peer reviewed by a Registered 

Geotechnical Engineer prior to submittal for approval. The plan will be drafted and then 

updated every 5 years during the remaining operational life of the landfill and the 

postclosure maintenance period to ensure that it is current with the most recent and 

broadly-accepted predictions for flood levels, following consultation with the U.S. 

Geological Survey, the San Francisco Bay Conservation and Development Commission, 

and other monitoring agencies that track bay and ocean levels and that may provide 

estimates of mean sea level rise and areas subject to future inundation.” Adoption of all 

four measures was meant to ensure that potential flooding was reduced to a less-thansignificant level. 

 

9

 Citing Ballona Wetlands, supra, 201 Cal.App.4th at pages 473 to 474, Redwood and the 

Marin County entities briefly contend that the EIR had no duty to analyze or mitigate the 

environment’s effect on the project (as opposed to the project’s effect on the 

environment). But Ballona Wetlands is distinguishable because, although the EIR may 

not specifically say so, future sea rise here presumably would not only impact the project 

but would also impact the environment by contaminating waterways. (Cf. Parker 

Shattuck Neighbors v. Berkeley City Council (2013) 222 Cal.App.4th 768, 782-785 

[questioning whether CEQA regulates environment’s effect on project, as opposed to 

project’s effect on environment].) 

10 To be clear, the landfill is located miles from the ocean. The apparent concern is that 

as ocean levels rise, so too will San Pablo Bay and the waterways adjacent to the landfill 

that feed into the bay, all of which are “subject to tidal influence.” 
17

 As part of implementing mitigation measure No. 3.5.6d, Geosyntec consultants 

prepared a long-term flood-protection plan for Redwood dated October 16, 2008. The 

plan noted that “the study of climate change and its effects on local tidal fluctuation and 

runoff is a rapidly developing field,” and it stated that every five years the plan would be 

reevaluated and reissued to incorporate and address new information. The then-current 

proposed exterior levee design at the Redwood Landfill was “a 9+ ft minimum elevation 

above . . . the nationally referenced mean sea level . . . .” By contrast, the peak stage for 

a 100-year storm was calculated at 6.3 feet. The plan analyzed existing sea-level 

projections and concluded that nearby water was not expected to top the current levees. 

On the other hand, levee improvements would be needed after “about 2015 to 2030” in 

order to ensure two feet of space between projected river peak and the top of the levee. 

The plan stated that Redwood’s levees were expected to provide sufficient flood 

protection for the following five to 10 years, and exterior levees would then need to be 

enlarged to account for ongoing settlement of the levees and sea-level rise. The report 

listed six different methods to enlarge existing levees and concluded that whichever 

method was used, “appropriate design, construction, monitoring, and maintenance 

procedure should be followed.” The report concluded that in light of “the uncertainty and 

continuing research involved in predicting the impacts of climate change on the SF Bay 

Area, the flood protection estimates should be revisited with each” long-term floodprotection plan. Levees will be surveyed to evaluate the effects of levee settlement, and 

based on those surveys’ updated information, “recommendations for updated levee flood 

protection elevations, if appropriate, and levee maintenance and enlargement, if needed, 

will be prepared and implemented.” 

 A different engineering firm provided a peer review of the long-term flood control 

plan and opined that Geosyntec’s evaluation of settlements and research about predicted 

sea-level rise were “generally appropriate for the site conditions.” The firm noted that 

reviewing and updating the flood-protection plan every five years was appropriate, given 

the “unknowns associated with sea level rise.” 
18

b. Analysis 

 The parties dispute whether the adoption of mitigation measure No. 3.5.6d 

improperly deferred CEQA’s required environmental assessment. 

 As an initial matter, we agree with Redwood and the Marin County entities that a 

very practical reason prevented mitigation measures from being “fully formulated” at the 

time of project approval: namely, the uncertainty of when and how much sea levels may 

rise. (Rialto Citizens, supra, 208 Cal.App.4th at p. 944.) The landfill opponents 

apparently do not contend otherwise. Thus, the question is whether the measure’s 

performance criteria were sufficiently specific at the time of project approval. (Ibid.) 

 Redwood acknowledges that its levee system must be maintained to protect the 

landfill from flooding, and it has previously demonstrated a commitment to do so. The 

EIR continues this commitment by agreeing to study the issue every five years to 

determine whether the levees should be raised even higher. This strikes us as reasonable 

in the face of the substantial uncertainties of sea-level rise. 

 The landfill opponents compare the EIR in this case to the one found inadequate in 

CBE, supra, 184 Cal.App.4th 70. In that case, Chevron sought permits to allow its 

Richmond refinery to process additional types of crude oil. (Id. at p. 75.) A draft EIR 

stated that the project would result in a net increase of 898,000 metric tons of carbon 

dioxide emissions per year (reportedly the equivalent of the emissions generated by 

160,000 cars), but it declined to make conclusions about the possible impacts of the 

emissions. (Id. at pp. 90-91.) After several objections were raised to the draft EIR’s 

treatment of greenhouse gases, the final EIR acknowledged the environmental 

significance of greenhouse-gas emissions and their effect on global warming, but it did 

not conclude that the refinery’s additional emissions would have a significant effect on 

the environment. (Id. at p. 90.) After the final EIR was issued, “there was an outpouring 

of public comment” criticizing the downplaying of the effect of greenhouse gases. (Ibid.) 

After the passage of the California Global Warming Solutions Act of 2006 (California 

Global Warming Act, Health & Saf. Code, § 38500 et seq.) and the publication of a white 

paper on how to assess greenhouse-gas emissions, a new volume of the EIR was issued 
19

that acknowledged that the increase of 898,000 metric tons of emissions would most 

likely have a significant effect on the environment. (CBE, at p. 91.) The final EIR 

proposed a mitigation measure to require Chevron, within a year of project approval, to 

submit to a plan to be approved by Richmond’s city council to reduce the additional 

emissions. (Ibid.) The report also listed a handful of possible measures to be considered 

to mitigate the emissions. (Id. at p. 92.) 

 This court found that the mitigation plan was deficient because it “merely 

propose[d] a generalized goal of no net increase in greenhouse gas emissions and then 

set[] out a handful of cursorily described mitigation measures for future consideration 

that might serve to mitigate the 898,000 metric tons of emissions resulting from the 

Project.” (CBE, supra, 184 Cal.App.4th at p. 93.) The possible mitigation measures 

were “nonexclusive, undefined, untested and of unknown efficacy,” and the only measure 

of the mitigation plan’s success was whether the city council adopted it—“outside of any 

public process a year after the Project [was] approved.” (Ibid.) The court concluded that 

“for kinds of impacts for which mitigation is known to be feasible, the EIR may give the 

lead agency a choice of which measure to adopt, so long as the measures are coupled 

with specific and mandatory performance standards to ensure that the measures, as 

implemented, will be effective.” (Id. at p. 94, italics added.) 

 Redwood and the Marin County entities contend that the EIR here is 

distinguishable because the mitigation is plainly set forth in the measure itself: 

“protection from the 100-year flood in the face of rising sea level and increased flood 

frequency and intensity.” The landfill opponents dismiss this performance measure, 

claiming it lacks adequate performance criteria because there is no indication how 

Redwood must design and construct the levees. They acknowledge that the challenged 

mitigation measure specifies that levees shall continue to be designed in order to protect 

the landfill from a 100-year flood, but they posit that the measure “could have specified a 

minimum levee height as a performance standard, which is the performance criteria now 

for protection against a 100 year flood.” 
20

 We conclude that Redwood and the Marin County entities have the stronger 

argument. There were compelling practical reasons not to set a minimum levee height at 

the time the EIR was prepared because it was unclear when and how high sea levels 

would rise, and how that rise might affect the waterways near the landfill. Because of 

this uncertainty, mitigation measure No. 3.5.6d requires Redwood to review, every five 

years during the entire remaining operating life of the landfill and postclosure 

maintenance period, whether known sea-level estimates are “current with the most recent 

and broadly-accepted predictions for flood levels, following consultation with the U.S. 

Geological Survey, the San Francisco Bay Conservation and Development Commission, 

and other monitoring agencies that track bay and ocean levels and that may provide 

estimates of mean sea level rise and areas subject to future inundation.” This reference to 

widely-accepted sea-level predictions is an adequate measure to guide compliance, and 

we are therefore not persuaded by the landfill opponents’ argument that mitigation 

measure fails to incorporate or refer to any regulatory scheme. (Oakland Heritage 

Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 906 [“[A] condition requiring 

compliance with regulations is a common and reasonable mitigation measure, and may be 

proper where it is reasonable to expect compliance”].) 

 This case is distinguishable from San Joaquin Raptor Rescue Center v. County of 

Merced (2007) 149 Cal.App.4th 645, upon which the landfill opponents rely. In that 

case, the court faulted an EIR because it included a generalized goal of maintaining 

biological resources near the proposed project but failed to include any specific criteria or 

standards to protect those resources. Thus, the success or failure of the mitigation efforts 

depended on plans that had not yet been formulated or analyzed without any justification 

for their deferral. (Id. at pp. 668-671.) Here, the EIR reveals an obligation on the part of 

Redwood to protect the levee system from a 100-year flood. Currently, that means 

keeping the levees nine feet above mean sea level. Given the uncertainty about the 

timing and extent of sea-level rise, we conclude that this approach is specific enough. 

(California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 

621 [“[W]hen a public agency has evaluated the potentially significant impacts of a 
21

project and has identified measures that will mitigate those impacts, the agency does not 

have to commit to any particular mitigation measure in the EIR, so long as it commits to 

mitigating the significant impacts of the project”], italics added.) This court recently 

recognized that “premature attempts to evaluate effects that are uncertain to occur or 

whose severity cannot reliably be measured is ‘a needlessly wasteful drain of the public 

fisc.’ ” (Citizens for a Sustainable Treasure Island v. City and County of San Francisco

(2014) 227 Cal.App.4th 1036, 1061.) 

 We agree with Redwood and the Marin County entities that this case is akin to 

Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, where 

Sacramento’s city council (the City) sought to expand its downtown convention center 

and build an office tower. (Id. at p. 1015.) To address concerns about lack of adequate 

parking, the EIR required a transportation-management plan to be prepared to reduce 

project-related traffic and parking. (Id. at pp. 1019-1020.) The EIR also listed potential 

mitigation measures and identified seven to be studied, analyzed, and possibly 

incorporated into the transportation-management plan. (Id. at pp. 1021-1023, 1030.) The 

Court of Appeal rejected the challenge to these measures as inadequate, concluding that 

the City “did not minimize or ignore the [parking] impacts in reliance on some future 

parking study” and in fact approved funds for “a major study of downtown 

transportation.” (Id. at pp. 1028-1029.) “[F]or kinds of impacts for which mitigation is 

known to be feasible, but where practical considerations prohibit devising such measures 

early in the planning process . . . , the agency can commit itself to eventually devising 

measures that will satisfy specific performance criteria articulated at the time of project 

approval. Where future action to carry a project forward is contingent on devising means 

to satisfy such criteria, the agency should be able to rely on its commitment as evidence 

that significant impacts will in fact be mitigated.” (Ibid.) As the City recognized in 

Sacramento Old City Assn., Redwood and the Marin County entities here recognize the 

possible significant environmental effects of the project and required a financial 

commitment to offset these impacts. (See also § 43509 [landfill owners required to 
22

calculate costs for closure and postclosure maintenance for as long as solid waste could 

adversely affect water quality].) 

 Finally, we reject the landfill opponents’ brief argument that sea-level rise was 

addressed only late in the process. The flood plan was completed prior to project 

approval, parties were provided access to it before the project was approved, and a 

coalition of environmental groups (including respondent No Wetlands) commented on it. 

 In short, we disagree with the trial court’s conclusion that the EIR improperly 

deferred mitigation of sea-level rise. 

3. The EIR Did Not Improperly Defer Mitigation to Protect Groundwater. 

a. Background 

 The landfill opponents next challenge mitigation measures meant to protect 

groundwater from leachate, which is “liquid that has come in contact with or percolated 

through waste materials and has extracted or dissolved substances therefrom.” As with 

protecting the area from flooding, managing leachate at the Redwood Landfill is not new. 

A leachate-management plan was developed in 1992, and a leachate collection-andremoval trench was built around the perimeter of the landfill over a 13-year period, from 

1991 to 2004. Redwood has annually reported on the leachate trench to the California 

Regional Water Quality Control Board, San Francisco Bay Region. The landfill also 

maintains a system to monitor and detect any release of leachate into groundwater, as 

required by California Code of Regulations, title 27, section 20380, and there has been no 

verified escape of leachate from the site. 

 During the comment period, concerns were raised over the effectiveness of the 

leachate collection-and-removal system. An amended response to comments, dated 

March 2008, summarized several hypothetical “failure scenarios” in which leachate could 

escape and identified mitigation measures to prevent these scenarios. One scenario could 

be caused by a land-filling method that was discontinued by 1970. When the landfill was 

first opened, the operator used a trench-fill method, whereby trenches were dug, filled 

with waste, and then covered. Little is known about these past procedures, and it is 

unclear how deep the trenches were dug. But they may have been dug below the layer of 
23

bay mud (which is less permeable) and into more porous alluvium, which could allow 

leachate to contaminate groundwater. 

 The EIR contains two mitigation measures to address the possibility of leachate 

migrating through old trench fills, and they are both challenged by the landfill opponents. 

Measure No. 3.4.7i requires an investigation of the trenches and provides, “The applicant 

shall, through historical research and site investigations, map the location and dimensions 

(including depth) of all trench fills located at the site. The applicant shall undertake any 

necessary subsurface investigations to ascertain whether any trench fills were excavated 

into the Pleistocene Alluvium underlying the Bay Mud. If not, no further action is 

required. If so, the applicant shall develop and implement a plan to correct this condition. 

The plan shall be reviewed and approved by the RWQCB [California Regional Water 

Quality Control Board, San Francisco Bay Region]. The plan may entail: a. installation 

of leachate extraction wells at sufficient frequency and depth within the old trenches to 

prevent downward migration of leachate into the underlying alluvium; b. excavation of 

all waste from the trench and replacement with a liner that meets current regulatory 

standards; or c. another engineered solution.” 

 A related mitigation measure, No. 3.4.7j, also addresses the possible migration of 

leachate: “After completion of the study required by Mitigation Measure 3.4.7i, the 

RWQCB shall make a determination as to whether an improved program to monitor 

groundwater within the Pleistocene Alluvium that underlies the Bay Mud is warranted to 

ensure that localized inconsistencies in the hydrogeologic system are considered, and that 

monitoring data characterize the quality of groundwater under both reference conditions 

and that which could be contaminated by leachate from the landfill. The applicant shall 

consult with the RWQCB regarding the need to[] locate and install additional wells, 

screened in the alluvium, to augment the existing wells (currently there are 4 wells in the 

alluvium . . . ). Since the gradient within the alluvium is tidally influenced, the alluvial 

well network will be evaluated to define upgradient and downgradient locations (with 

consideration of tidal influence) in order to properly locate wells. Should additional 

monitoring be required by RWQCB, a sampling and analysis plan, including schedule, 
24

shall be developed in consultation with the RWQCB, and monitoring results will be 

added to the facility’s semi-annual and annual monitoring reports to the RWQCB. If 

monitoring reveals that contamination is occurring in the alluvium, the applicant shall 

develop a remediation plan. The remediation plan shall be reviewed and approved by the 

RWQCB. Remediation may entail pump and treat methods, treat-in-place methods, or 

other methods approved by the RWQCB. Treatment shall continue as long as 

contamination is present or until a water quality objective established by the RWQCB is 

met.” 

b. Analysis 

 The landfill opponents argue that the EIR improperly defers developing a plan to 

monitor and remediate possible leachate contamination. The challenged mitigation 

measures, however, are only two of 11 lengthy measures designed to address the 

concern.

11 The other nine measures call for Redwood (1) to continue ongoing practices 

to minimize leachate and promote its collection and reuse, (2) to continue monitoring 

daily activity at the landfill and adhere to steps already in place under the landfill’s leakor-spill contingency plan, (3) to take steps following a “significant seismic or rare rainfall 

event” to address possible disruption to the leachate systems, (4) to take additional and 

specific steps in the event leachate is detected, (5) to commence a leachate-pumping 

program, (6) to update its leak-or-spill contingency plan to accommodate changes in the 

proposed project, (7) to implement a hydraulic-gradient-monitoring program, (8) to 

maintain equipment capable of continuing operations during a power outage, and (9) to 

continue operating the leachate system after the landfill is closed. These mitigation 

measures, which are unchallenged by the landfill opponents, demonstrate a commitment 

to keep leachate from contaminating groundwater. 

 The landfill opponents nonetheless contend, and the trial court agreed, that the two 

challenged mitigation measures amount to an improper deferral of a complete analysis of 

 

11 Impact No. 3.4.7 provides: “If not properly designed, the proposed Leachate 

Collection and Recovery System . . . could allow leachate to migrate off-site and 

potentially contaminate off-site groundwater and surface water.” 
25

the potential impact on groundwater. We disagree. The opponents again compare this 

case to CBE, supra, 184 Cal.App.4th 70. But part of the reason this court found the 

mitigation measures in CBE inadequate was because Chevron acknowledged only late in 

the process that the emission of greenhouse gases could negatively impact the 

environment. (Id. at pp. 90-92.) While it is true that the two mitigation measures here 

were introduced only after concerns were raised during the comment period, Redwood 

never denied the need for leachate management, and it has a demonstrated record of 

monitoring, managing, and reporting on its leachate system. 

 The landfill opponents claim that the measures lack “objective criteria or 

performance standards,” such as compliance with a regulatory scheme. But the two 

measures do not exist in a vacuum and are part of a detailed and ongoing plan to monitor 

leachate. The current system complies with the California Code of Regulations, and 

there is no evidence to suggest that the new monitoring system will not. And because 

there was no evidence of leachate migration, it was reasonable for the EIR to conclude 

that further study was necessary before further mitigation measures were specified. 

(Citizens for a Sustainable Treasure Island v. City and County of San Francisco, supra, 

227 Cal.App.4th at pp. 1060-1061 [“ ‘foreseeing the unforeseeable’ is not required, nor is 

predicting the unpredictable or quantifying the unquantifiable”]; Save Cuyama Valley v. 

County of Santa Barbara (2013) 213 Cal.App.4th 1059, 1070-1071 [mitigation measure 

sufficient where mining company agreed to take corrective action if “ ‘adverse hydraulic 

conditions’ ” detected]; National Parks & Conservation Assn. v. County of Riverside

(1999) 71 Cal.App.4th 1341, 1366 [reasonable to conclude that further study necessary 

before requiring fence to protect species from landfill project]; Towards Responsibility in 

Planning v. City Council (1988) 200 Cal.App.3d 671, 681 [adoption of EIR “need not be 

interminably delayed to include results of works in progress which might shed some 

additional light on the subject”].) 

 We conclude that the challenged mitigation measures were adequate. 
26

E. The EIR Sufficiently Considered Potential Health Impacts from Air Emissions. 

1. The EIR’s Discussion of the Project’s Effect on Air Quality. 

 Solid-waste landfills generate gases formed when organic waste decomposes and 

when vapors are released from volatile compounds. Decomposition creates methane and 

carbon dioxide (CO2). Although incinerating collected landfill gas is considered to be 

“highly effective in reducing potentially harmful constituents contained in the gas,” about 

25 percent is not recovered, and its release into the atmosphere “has the potential to 

contribute to air pollution and to expose people to toxic air contaminants.” Landfill gas 

may contain trace quantities of toxic air contaminants such as benzene and possibly 

chlorinated hydrocarbons. The contaminants contribute to air pollution, which can cause 

short- or long-term health problems, including acute respiratory infections, chronic 

bronchitis, pulmonary emphysema, and bronchial asthma. 

 Testing at the landfill in June 1988 found trace amounts of benzene, but some of 

these amounts may have come from vehicle emissions. The testing revealed no 

chlorinated hydrocarbons. The EIR found that the proposed expansion of the landfill 

could potentially increase toxic air contaminates because more waste will decompose, 

composting operations will enlarge, and more diesel trucks and equipment will be used. 

It calculated that the expansion could result in an increase of about 13 pounds of reactive 

organic gases. The EIR assumed that, as a worst-case scenario, those new emissions 

would contain 500 parts per million (by volume) of benzene. Such an increase would 

result in an increased cancer risk, estimated to cause an additional 1.2 cancer cases for 

every 100 million people exposed. This was considered “well below the significance 

threshold of 10 in a million.” The increased cancer risk from additional composting 

emissions was also predicted to be “well below the significance threshold of 10 in a 

million.” But the health risks from increased diesel-truck emissions was estimated to be 

18 additional cancer cases for every million people exposed, which “exceeds the 

significance threshold of 10 new cancer cases for every million people exposed.” 

 The EIR also discussed respirable particulate matter. Particulate matter, or “PM,” 

refers to extremely small solid or liquid particles that can be suspended in the 
27

atmosphere. (California Unions for Reliable Energy v. Mojave Desert Air Quality 

Management Dist. (2009) 178 Cal.App.4th 1225, 1231.) Particulate matter may be 

measured in microns (a micron is one one-millionth of a meter, a micrometer). (Id. at 

pp. 1231-1232.) Particulate matter made up of particles that are 10 micrometers or less in 

diameter (PM-10) is considered an air pollutant. (Ibid.; 40 C.F.R. § 50.6(c) (2014).) PM10 “can be further subclassified into fine particles, which are 2.5 micrometers or less in 

diameter” (PM-2.5). (California Unions, at p. 1232; 40 C.F.R. §§ 50.7, 50, appen. L 

(2014).) The federal Clean Air Act requires the Environmental Protection Agency to 

prescribe national ambient air-quality standards. (42 U.S.C. § 7409(a), (b).) Separate 

standards for PM-10 and PM-2.5 have been established (40 C.F.R §§ 50.5(a), 50.7), and 

areas that fail to meet those standards are designated as nonattainment areas. (42 U.S.C. 

§ 7407(d).) Although the EIR here identified national standards for both types of 

particulate matter, it did not separately assess the significance of PM-2.5 and PM-10. 

Instead, it explained that PM-10 includes PM-2.5, and it analyzed only PM-10, 

explaining that all PM-2.5 was also PM-10. 

 This approach of analyzing PM-10, without separately analyzing PM-2.5, was 

consistent with CEQA guidelines prepared in 1999 by the Bay Area Air Quality 

Management District (BAAQMD), which regulates air quality in the area and at the 

landfill. BAAQMD “is the agency primarily responsible for assuring that national and 

State ambient air quality standards are attained and maintained in the San Francisco Bay 

Area.” Its responsibilities include adopting and enforcing rules and regulations 

concerning air-pollutant sources and monitoring ambient air-quality conditions. Its 1999 

CEQA guidelines for preparing EIRs provided threshold significance levels for PM-10, 

but not separately for PM-2.5. 

 The EIR quantified the increased emissions generated by the project as follows: 

262 pounds per day of reactive organic gases, coming mostly from composting and air 

drying sludge; 242 pounds per day of nitrogen oxides, coming mostly from vehicle traffic 

and off-road equipment; and 394 pounds per day of PM-10, coming mostly from fugitive 

dust generated by landfill operations. These totals exceeded BAAQMD’s significance 
28

criteria of 80 pounds for each category, and the impact was considered significant. The 

EIR concluded that, even with mitigation measures implemented to substantially reduce 

emissions, it was unlikely the emissions of reactive organic gases, nitrogen oxides, and 

PM-10 would be reduced below BAAQMD’s significance threshold, and the project’s 

combined emissions thus would be considered “significant and unavoidable.” 

 In response to public comment about air-quality and other issues (including 

greenhouse gas emissions, see post, § II.F.), Redwood submitted a letter dated June 9, 

2008, to Marin EHS, with several attachments. Marin EHS certified the EIR the next 

day, on June 10. 

2. The Trial Court’s Ruling on Air Quality. 

 The trial court found two deficiencies in the EIR’s discussion of air quality. It first 

acknowledged that the final EIR found that emissions of toxic air contaminates could 

cause significant health risks but that mitigation measures would reduce the increase of 

cancer risk to less-than-significant level. But it concluded that the final EIR was 

deficient because it failed to discuss “the increased non-cancer health risks from the 

[toxic air contaminates] or from the other air pollutants.” (Original italics.) According to 

the trial court, there was “no discussion of the increased impact on non-cancer health 

risks from non-carcinogenic [toxic air contaminates] or from the other air pollutants 

which EHS found to be significant and unavoidable.” 

 Second, the trial court found that the final EIR was inadequate because it “fail[ed] 

to analyze the formation and impacts of very fine particulate matter having a diameter of 

2.5 microns or less” (i.e., PM-2.5). It based this conclusion in part on information 

apparently not taken from the administrative record, but instead from the website of the 

California Air Resources Board (ARB). According to the trial court, the website revealed 

that “in June 2002 the ARB adopted new ambient air quality standards for PM-10 and 

PM-2.5, which rules became effective in 2003. Therefore, the different standards for 

PM-2.5 were available at the time of [the final EIR] preparation in July 2005.” (Original 

italics.) The court concluded that the risk of health impacts from PM-2.5 were different 

from PM-10, “otherwise the ARB would not have bothered to establish different air 
29

quality thresholds for the two emissions.” The fact that the ARB’s threshold of 

significance for PM-2.5 was lower than the threshold for PM-10 “suggest[ed]” it was 

potentially more harmful than PM-10. The court concluded it was “reasonable to expect” 

Marin EHS to use “the easily available California ARB standards in calculating the 

threshold of significance for PM-2.5 emissions,” and that use of those standards was 

“probably mandatory.” The court concluded that the error amounted to an abuse of 

discretion because Marin EHS “did not use its best efforts to determine if there was 

regulatory guidance from another agency that it could use to quantify the health risk from 

PM-2.5 emissions.” 

3. The EIR’s Treatment of PM-2.5 Was Not an Abuse of Discretion. 

 We first address the trial court’s ruling on the EIR’s approach to PM-2.5. 

Redwood and the Marin County entities argue that the trial court failed to appreciate that 

the standards the court cited were for ambient air-quality standards and not thresholds of 

significance to be used for EIRs prepared under CEQA. (E.g., Citizens for Responsible 

Equitable Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 

327, 334 [where increases in air pollutants are below significance criteria, they are 

considered to have no significant impact on ambient-air quality].) We agree it was 

improper for the trial court to set aside an EIR based on its independent research of airquality standards. “[O]ur Supreme Court has cautioned reviewing courts against 

performing our own scientific critiques of environmental studies, a task for which we 

have neither resources nor scientific expertise.” (Eureka Citizens for Responsible 

Government v. City of Eureka (2007) 147 Cal.App.4th 357, 372, citing Laurel Heights 

Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393.) 

“Our duty is not to pass on the validity of the conclusions expressed in the EIR, but only 

on the sufficiency of the report as an informative document.” (Eureka Citizens, at 

p. 372.) 

 We cannot say that the EIR’s approach in evaluating PM-2.5 was an abuse of 

discretion since the EIR relied on BAAQMD guidelines in effect at the time the EIR was 

prepared. (Rialto Citizens, supra, 208 Cal.App.4th at p. 933 & fn. 15 [EIR’s analysis of 
30

air quality reasonable in light of approach recommended by agency responsible for 

attaining state and federal clean-air standards in region].) The federal administrative 

decision upon which the landfill opponents rely does not alter our conclusion. (In the 

Matter of Louisville Gas and Electric Co. (Aug. 12, 2009, Petn. No. IV-2008-3), before 

the Administrator of the U.S. Environmental Protection Agency (EPA).)12 In considering 

an objection to the construction of a new coal-fired boiler, the administrator concluded 

that it was inappropriate to use PM-10 as a surrogate for PM-2.5 in that case. The 

administrator stressed, however, that the decision whether PM-10 is a reasonable 

surrogate for PM-2.5 depends on “the facts and circumstances of the specific permit at 

issue,” and it provided detailed guidance on how to demonstrate whether PM-10 is a 

reasonable surrogate for PM-2.5 in a particular case. It was the landfill opponents’ 

burden to prove the EIR’s inadequacy (Save Cuyama Valley v. County of Santa Barbara, 

supra, 213 Cal.App.4th at p. 1067), and they have failed to do so here. 

4. The EIR Adequately Analyzed the Potential Increase in Pollution. 

 A closer question is whether the EIR adequately analyzed the potential health 

effects of increased pollution. The Guidelines specify that an EIR “shall identify and 

focus on the significant environmental effects of the proposed project.” (Guidelines, 

§ 15126.2, subd. (a).) “Direct and indirect significant effects of the project on the 

environment shall be clearly identified and described, giving due consideration to both 

the short-term and long-term effects. The discussion should include . . . health . . . 

problems caused by the physical changes” to the environment. (Ibid., italics added.) The 

Guidelines further direct an EIR to “[d]escribe any significant impacts, including those 

which can be mitigated but not reduced to a level of insignificance.” (Guidelines, 

§ 15126.2, subd. (b).) 

 

12 We take judicial notice of the order (Evid. Code, §§ 452, subd. (c), 459, subd. (a)), 

although we recognize, as Redwood and the Marin County entities point out, that the 

decision could not have been relied upon by Marin EHS because it was published a year 

after the project was approved. 
31

 The Fifth District has interpreted Guideline section 15126.2 to mean that an EIR 

must correlate identified adverse air-quality impacts to resultant adverse health effects. 

(Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 

1184, 1219 (Bakersfield Citizens).) Bakersfield Citizens considered the two EIRs of two 

shopping centers. (Id. at p. 1193.) Both EIRs concluded that the shopping centers would 

have significant and unavoidable direct adverse impacts on air quality. (Id. at pp. 1194, 

1219.) The court found that both EIRs were deficient because “neither EIR 

acknowledge[d] the health consequences that necessarily result from the identified 

adverse air quality impacts. Buried in the description of some of the various substances 

that make up the soup known as ‘air pollution’ are brief references to respiratory 

illnesses. However, there is no acknowledgement or analysis of the well-known 

connection between reduction in air quality and increases in specific respiratory 

conditions and illnesses. After reading the EIRs, the public would have no idea of the 

health consequences that result when more pollutants are added to a nonattainment basin. 

On remand, the health impacts resulting from the adverse air quality impacts must be 

identified and analyzed in the new EIR’s.” (Id. at p. 1220.)13

 Redwood and the Marin County entities point out that the trial court concluded 

that the final EIR adequately addressed increased cancer risks from toxic air 

contaminants and only inadequately addressed “non-cancer” health risks. As to 

noncancer health risks, they argue that the EIR sufficiently addressed them by pointing to 

the portions of the EIR explaining the hazard index used to evaluate threshold levels of 

noncancer health risks. The EIR explains the hazard index “is the ratio of the predicted 

exposure concentration to a threshold level, as established by [California’s Office of 

 

13 No party petitioned for review in Bakersfield Citizens, supra, 124 Cal.App.4th 1184. 

The Fifth District recently relied on the case in setting aside an EIR for a proposed 

master-planned community for persons age 55 or older in north-central Fresno County, 

holding that a “simple statement in an EIR that the significant adverse air quality impacts 

will have an adverse impact on human health fails to comply with” CEQA standards. 

(Sierra Club v. County of Fresno (2014) 226 Cal.App.4th 704, 745.) The Supreme Court 

has granted review in Sierra Club to address “issues concerning the standard and scope of 

judicial review under [CEQA].” (Review granted Oct. 1, 2014, S219783.) 
32

Environmental Health Hazard Assessment], that could cause adverse health effects.” 

The landfill opponents do not directly counter the argument that the EIR sufficiently 

addressed noncancer health effects in addition to the cancer risk of toxic air 

contaminants. (People v. Bouzas (1991) 53 Cal.3d 467, 480 [ignoring point in 

respondent’s brief viewed as apparent concession].) We conclude that the EIR’s analysis 

of potential noncancer health impacts from toxic air contaminants was acceptable since 

the analytical approach was consistent with BAAQMD’s guidelines. (Rialto Citizens, 

supra, 208 Cal.App.4th at p. 933.) 

 But the broader question remains whether it was sufficient for the EIR to state that 

levels of reactive organic gases, nitrogen oxides, and PM-10 would likely be above 

BAAQMD’s significance threshold of 80 pounds per day, a significant-and-unavoidable 

effect, without further analysis of the potential health impacts of this increased pollution. 

The landfill opponents do not dispute that the EIR’s discussion of air quality complied 

with BAAQMD guidelines, and they fail to propose any specific method for an analysis 

that they would consider to be sufficient. They simply argue that the EIR is deficient 

under Bakersfield Citizens, supra, 124 Cal.App.4th 1184. Redwood and the Marin 

County entities argue that Bakersfield Citizens is distinguishable because the EIR’s 

discussion was consistent with BAAQMD’s guidelines, and BAAQMD did not challenge 

the method used. Moreover, the pollution-control district in Bakersfield Citizens

expressed concerns that emissions from the proposed project would make it more 

difficult to attain mandated air-quality standards (id. at p. 1216) and had uncertain 

authority over the project if and when it were to be completed. In contrast, BAAQMD 

expressed no similar concerns here, and it will continue to have regulatory control 

authority over the landfill. The landfill opponents counter that BAAQMD’s guidelines 

should not be controlling because they were prepared in 1999, years before Bakersfield 

Citizens was decided in 2004. 

 After all is said and done, we believe Redwood and the Marin County entities 

have the better argument. Bakersfield Citizens, supra, 124 Cal.App.4th 1184 did not 

itself offer any specific guidance on how to evaluate air quality, and, unlike BAAQMD, 
33

this court lacks the scientific expertise to provide it. We conclude that an EIR’s 

discussion of potential impacts of a project on air quality that is consistent with thenapplicable guidelines of a regional air-quality board should normally be sufficient to 

satisfy CEQA’s disclosure requirements, and in this case it was. 

 This case also stands in stark contrast with Berkeley Keep Jets Over the Bay 

Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, upon which the landfill 

opponents rely. Relying on a speciation profile published by the California Air 

Resources Board, the draft EIR in that case recognized that a planned expansion of an 

airport by the Oakland Port Authority (the Port) would increase toxic air contaminants 

but stated that the environmental effects of the increase were unknown because there was 

“no approved, standardized protocol” for assessing the risks, and there were no 

significance criteria. (Id. at p. 1364.) After the draft EIR was circulated, an air-quality 

expert criticized the speciation profile as being outdated and explained that a newer 

profile was currently being used. (Id. at p. 1365.) The Port then published a response 

that wrongly suggested that the resources board did not recommend using the newer 

profile. (Id. at pp. 1351, 1365-1366.) The final EIR stated that the public-health impact 

of toxic air contaminants was unknown, despite the fact that “[v]oluminous documentary 

evidence was submitted to the Port supporting the assertion that an approved and 

standardized protocol did exist which would enable the Port to conduct a health risk 

assessment.” (Id. at pp. 1367-1368.) Division Two of this court concluded that the Port 

had not made a sufficient effort to collect data or make further inquiries of environmental 

or regulatory agencies having expertise on the subject. (Id. at p. 1370; see also § 21080.3 

[before deciding whether EIR is required, lead agency “shall consult with all responsible 

agencies”].) “The fact that a single methodology does not currently exist that would 

provide the Port with a precise, or ‘universally accepted,’ quantification of the human 

health risk from [toxic air contaminant] exposure does not excuse the preparation of any 

health risk assessment—it requires the Port to do the necessary work to educate itself 

about the different methodologies that are available.” (Berkeley Jets, at p. 1370, original 

italics.) Here, by contrast, Marin EHS did just that by relying on BAAQMD’s CEQA 
34

guidelines. And while the EIR in Berkeley Jets “failed to acknowledge the opinions of 

responsible agencies and experts who cast substantial doubt on the adequacy of the EIR’s 

analysis of” toxic-air contamination (id. at p. 1371), there is no such consensus of experts 

here that the EIR came up short. 

 We conclude that the EIR’s discussion of the potential increase in air pollution 

satisfied CEQA. 

F. The EIR Sufficiently Analyzed Greenhouse Gas Emissions. 

1. Background. 

 Finally, we address the EIR’s analysis of greenhouse gas (GHG) emissions. 

Redwood’s final EIR responses to comments amendment dated March 2008 included a 

12-page section titled “Greenhouse Gas Emissions and Global Climate Change.” The 

amendment pointed out that since the final EIR was published in July 2005, the 

Legislature had passed the California Global Warming Act establishing the state’s goal of 

reducing greenhouse gas emissions to 1990 levels by 2020. It also pointed out that in 

2006, the Marin County Board of Supervisors adopted the Marin County Greenhouse Gas 

Reduction Plan, which sets a target of reducing GHG emissions countywide to 15 percent 

below 1990 levels by 2020. Finally, it remarked that “municipal solid waste landfills are 

a major source of GHGs, predominantly from fugitive landfill gas emissions, but also 

from emissions from fossil-fuel powered equipment and vehicles.” 

 After describing the task of measuring the landfill gas generated at the Redwood 

Landfill as “difficult at best,” the response recognized several possible models for doing 

so. The EIR used the “Landfill Gas Emissions Model” (or LandGEM), a software 

application with a Microsoft Excel interface that is used by the EPA and also is 

recommended as “ ‘good practice’ ” by the Intergovernmental Panel on Climate Change. 
35

The model uses different variables to calculate gas generation.14 The values of the 

variables depend on whether the landfill is arid, conventional, or wet. To estimate 

emissions, LandGEM can use either default values for these different types of landfills or 

site-specific data. Here, the default values for a conventional landfill were used. Using 

that model, the response included a five-page appendix calculating GHG outputs at the 

landfill for its current site-life estimates. 

 Redwood presently has a system to collect landfill gas. It monitors the amount 

and composition of the gas collected and reports the results to BAAQMD as a condition 

of its permit. The amount of gas captured through the system approximately doubled 

between 2002 and 2006. Some methane nonetheless escapes into the atmosphere as socalled “fugitive methane emissions.” These emissions are made up of gases that are not 

captured by the collection system or are captured but not destroyed by the landfill’s flare 

system. 

 Mitigation measure No. 3.2.5c proposed that Redwood apply to BAAQMD for the 

authority to construct power-generation engines to be fueled by landfill gas capable of 

producing four to five megawatts of power within two years of the California Integrated 

Waste Management Board concurring in the solid-waste facilities permit. The engines 

would replace the landfill’s flare system, “increase the overall capacity available to treat 

landfill gas, and w[ould] also result in the beneficial use of some portion of the landfill 

gas generated. Operation of the landfill-gas-powered generators w[ould] make the 

project consistent with Policy 4.2 of the Marin Countywide Plan Community 

Development element . . . , which calls for exploration and implementation, where 

possible, of opportunities for cost-effective energy savings that are compatible with other 

 

14 The model “uses as inputs the amount of waste placed in the landfill annually; a factor 

(Lo) for the potential methane generation capacity, which depends on the type and 

composition of waste placed in the landfill; and a factor (k) for the methane generation 

rate, which determines the rate of methane generation for the mass of waste in the 

landfill, and which is related to environmental conditions within the landfill—primarily 

the amount of moisture. The output of LandGEM is the total predicted annual generation 

of gases, including CO2, methane, and [nonmethane organic compounds].” (Italics 

omitted.) 
36

countywide and community goals.” The gas-fired engines were considered as substitutes 

for electricity generated from other sources. “From this viewpoint, power generation at 

Redwood Landfill under the Mitigated Alternative will offset GHG emissions associated 

with power production elsewhere.” 

 Considering all the GHG emissions under the existing permit as compared to the 

mitigated alternative, the alternative was projected to result in a decrease of nearly 

2.2 million metric tons of carbon dioxide equivalent, a drop of about 33 percent as 

compared with the existing permit. This, of course, would reduce the potential impact on 

global warming. Still, under the mitigated alternative, the landfill would emit about twice 

the amount of GHGs in 2020 as it did in 1990. In order to reduce total emissions to at 

least 15 percent below 1990 levels, two mitigation measures were added. The first, 

No. 3.2.5f, requires Redwood to develop a GHG reduction plan, and the second, 

No. 3.2.5g, requires Redwood to continue to operate the landfill’s gas-collection system 

following closure of the landfill and as long as the landfill continues to produce landfill 

gas. 

 The final EIR here was certified in June 2008, and the revised solid-waste facility 

permit was issued in December 2008. More than a year later, on March 18, 2010, 

Guidelines section 15064.4 became effective. This section provides that in determining 

the significance of impacts from GHG emissions, a lead agency should consider, among 

other factors, (1) the extent to which the project may increase or reduce GHG emissions 

as compared to the existing environmental setting, (2) whether the project emissions 

exceed a threshold of significance that the lead agency determines applies to the project, 

and (3) the extent to which the project complies with regulations or requirements adopted 

to implement a statewide, regional, or local plan for the reduction or mitigation of GHG 

emissions. (Guidelines, § 15064.4, subd. (b).) 

 In response to the landfill opponents’ challenges to the EIR’s analysis of GHG 

emissions, the trial court upheld parts of the EIR and struck down others. Both sides 
37

appealed. We address the issues in the order in which they were addressed in the trial 

court’s decision.15

2. The EIR Sufficiently Analyzed the Project’s Cumulative Effects on 

Greenhouse Gases. 

 Guidelines section 15130, subdivision (a) requires an EIR to “discuss cumulative 

impacts of a project when the project’s incremental effect is cumulatively 

considerable . . . .” “ ‘Cumulatively considerable’ means that the incremental effects of 

an individual project are significant when viewed in connection with the effects of past 

projects, the effects of other current projects, and the effects of probable future projects.” 

(Guidelines, § 15065, subd. (a)(3).) This situation arises where a project has multiple 

possible environmental effects that are limited when considered individually but 

significant when considered cumulatively. (Ibid.) In such a situation, an EIR’s 

discussion of cumulative impacts must include either (1) a “list of past, present, and 

probable future projects producing related or cumulative impacts,” or (2) a “summary of 

projections contained in an adopted local, regional or statewide plan, or related planning 

document, that describes or evaluates conditions contributing to the cumulative effect.” 

(Guidelines, § 15130, subd. (b)(1)(A).) 

 The trial court found the EIR deficient for failing to analyze whether the impact 

from GHGs was “ ‘cumulatively considerable.’ ” The trial court acknowledged that 

Marin EHS’s responses to comments estimated GHG emissions over the life of the 

project, analyzed the estimated reduction of emissions, and adopted mitigation measures 

to reduce emissions. It faulted the EIR, however, for not using one of the two methods 

(list of projects or summary of projections) identified in Guidelines section 15130, 

subdivision (b). On appeal, Redwood and the Marin County entities contend that the 

court’s assessment was “clearly wrong,” because the EIR “plainly relied on a summary of 

 

15 The parties devote several pages to whether, under Rialto Citizens, supra, 

208 Cal.App.4th 899, it was necessary to analyze GHGs in the first place, an argument 

that does not appear connected to any particular challenge to the EIR or necessary to our 

resolution to the issues raised. The landfill opponents filed a request for judicial notice of 

a document it argued was relevant to the issue. We now deny the request as moot. 
38

projections in the Countywide Plan.” Having reviewed the projections in the EIR and 

their relation to federal, state, and local guidelines, we agree that the EIR sufficiently 

analyzed the cumulative effects of the project, and we reject the landfill opponents’ three 

arguments to the contrary. 

 The landfill opponents first argue that the EIR failed to summarize projections 

from previously approved planning documents. As we understand their argument, 

however, they contend that an analysis of cumulative effects should have been global in 

scale. Because “the scope of the cumulative analysis should be global,” they argue, “the 

list of related projects in only Marin County does not comply with CEQA.” They also 

rely on the statement in City of Long Beach v. Los Angeles Unified School Dist. (2009) 

176 Cal.App.4th 889, 907 that “[a]n EIR’s cumulative impact analysis should include all 

sources of related impacts, not simply similar sources or projects.” We reject this 

argument because it would be entirely unrealistic to require an EIR’s analysis of a 

regional landfill to identify, let alone analyze, all sources of GHGs, even if limited only 

to other landfills. We likewise reject the landfill opponents’ argument that “the EIR fails 

to summarize related projects’ expected environmental effects.” They argue that “[a] 

summary of related projects’ global warming effects would have been reasonable to 

include in the EIR, especially since the EIR referred to the [Intergovernmental Panel on 

Climate Change], EPA, and California Energy Commission documents and stated that 

landfills like the Redwood Landfill are significant greenhouse gas sources.” Again, 

CEQA does not mandate that the EIR here analyze all methane-producing landfills, as the 

landfill opponents apparently suggest. 

 Finally, we reject the landfill opponents’ argument that the EIR failed to analyze 

the cumulative impacts of “related projects” on the effects of global warming. We share 

their concerns about the grave impacts that global warming is expected to bring, both 

globally and in California. But it does not follow that the EIR here was required to 

analyze any and all projects that contribute to global warming. And, contrary to the 

landfill opponents’ argument, the EIR sufficiently acknowledged the severity of global 

warming. 
39

3. Figures Used in the LandGEM Model Were Not an Abuse of 

Discretion. 

 As explained above, the EIR used the LandGEM model to estimate landfill-gas 

emissions, using default values based on the determination that Redwood Landfill is a 

conventional landfill. The landfill opponents argue that substantial evidence does not 

support this method, both because Redwood Landfill is a wet landfill (meaning it 

produces more landfill gas at a faster rate) and because default values were used instead 

of site-specific data. We agree with the trial court that substantial evidence supports the 

method that was used. 

 As we have stressed, it is not the role of a reviewing court to substitute its 

judgment for that of the agency when reviewing the record for substantial evidence to 

support the methodology used for studying a potential impact. (North Coast Rivers 

Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 

642-643.) “ ‘The fact that different inferences or conclusions could be drawn, or that 

different methods of gathering and compiling statistics could have been employed, is not 

determinative in a substantial evidence review.’ [Citation.] The issue is not whether 

other methods might have been used, but whether the agency relied on evidence that a 

‘ “reasonable mind might accept as sufficient to support the conclusion reached” ’ in the 

EIR.” (Id. at p. 642.) 

 According to the landfill opponents, there was no evidence in the EIR to support 

its use of default values for a conventional landfill, and it was not until Redwood 
40

submitted a June 9, 2008 letter to Marin EHS in an attempt to “shore up the EIR” that it 

presented evidence to support the EIR’s conclusions.16

 Although no party raises this issue, we note that the landfill opponents do not 

specifically object to the use of the LandGEM model, only to the values selected. The 

administrative record contains a user’s guide to the LandGEM model, which could have 

been used by the landfill opponents to calculate different projections using values they 

believed were more accurate. Instead, it directs this court to a single table in a section 

titled “Landfill Gas Capture and Destruction” and complains that one column shows that 

annual landfill-gas flow increased by more than 100 percent between 2002 and 2006, 

whereas LandGEM modeling of methane generated over the same period increased by 

only about 14 percent—without providing any context for these figures or explaining 

how they affect the other four columns in the table, let alone the other detailed appendix 

generated using LandGEM. 

 In any event, sufficient evidence supports the determination that Redwood 

Landfill may be considered conventional for purposes of LandGEM. The LandGEM 

user’s guide describes wet landfills as “bioreactor landfills where leachate and other 

liquids are added to accelerate waste decomposition.” But the record here shows that 

leachate is pumped out of Redwood Landfill. Although some liquid is then sprayed on 

the landfill, this is for purposes of dust control, and not to accelerate waste 

 

16 The landfill opponents characterize this letter and its attachments as improper “postEIR record packing.” But the material was part of the administrative record before the 

EIR was certified, even if only briefly. (§ 21167.6, subd. (e)(6) [all written comments 

submitted in connection with project part of administrative record]; cf. CBE, supra, 

184 Cal.App.4th at p. 88 [improper to rely on undisclosed data from oil refinery that was 

submitted after EIR certification].) Contrary to the landfill opponents’ argument, this is 

not comparable to situations in which potential significant environmental impacts are 

disclosed late in the process and left unanalyzed. (E.g., Vineyard Area Citizens, supra, 

40 Cal.4th at pp. 441-442 [final EIR contained inconsistent gross-demand figures for 

water and failed to include or describe relevant demand figures].) Here, Redwood was 

responding to issues already raised during environmental review. And, contrary to 

assertions made by counsel for No Wetlands at oral argument, Vineyard Area Residents

permits an EIR to reference and incorporate previously prepared analyses. (Id. at 

pp. 442-443.) 
41

decomposition. The landfill opponents failed to demonstrate that Redwood Landfill 

should be considered “wet” for purposes of LandGEM merely by pointing to some 

evidence that might support such a finding and referencing guidelines for analyzing sitespecific data. (Save Cuyama Valley v. County of Santa Barbara, supra, 213 Cal.App.4th 

at pp. 1066-1067 [reviewing court accords “considerable deference” to EIR’s 

determinations, presumes them correct, and resolves all reasonable doubt in their favor].) 

4. The EIR’s Analysis of a Proposed Onsite Power Facility Was 

Adequate. 

 We also reject the landfill opponents’ challenge to the plan to offset an increase in 

GHGs with the reduction of GHGs resulting from using engines fired by landfill gas to 

substitute for electricity generated from other sources. They first claim that the plan to 

offset the emissions “is nothing more than pure speculation.” “ ‘As with all substantial 

evidence challenges, an appellant challenging an EIR for insufficient evidence must lay 

out the evidence favorable to the other side and show why it is lacking. Failure to do so 

is fatal. A reviewing court will not independently review the record to make up for 

appellant’s failure to carry his burden.’ ” (Tracy First v. City of Tracy (2009) 

177 Cal.App.4th 912, 934-935.) The landfill opponents do not meet this burden. The 

plan to build power-generation engines to be fueled by landfill gas was described in detail 

as a way to mitigate the increase of GHG emissions. The landfill opponents may not 

simply claim that there was no evidence to support the plan or contend that support for it 

was found somewhere in Redwood’s “improper” June 9, 2008 letter, without explaining 

why the EIR’s plan was lacking. Contrary to the landfill opponents’ argument, the plan is 

an appropriate way to offset an increase in GHG emissions. (E.g., Guidelines, § 15126.4, 

subd. (c)(3) [lead agencies may consider feasible means of mitigating greenhouse-gas 

emissions, including off-site measures resulting in offsets that are not otherwise 

required].) 

 We also disagree with the landfill opponents’ argument that the EIR’s plan to 

offset GHGs relied on an “impermissible future baseline.” The Guidelines provide that 

an EIR “must include a description of the physical environmental conditions in the 
42

vicinity of the project, as they exist at the time the notice of preparation is published . . . , 

from both a local and regional perspective. This environmental setting will normally 

constitute the baseline physical conditions by which a lead agency determines whether an 

impact is significant. The description of the environmental setting shall be no longer than 

is necessary to an understanding of the significant effects of the proposed project and its 

alternatives.” (Guidelines, § 15125, subd. (a), italics added.) In fact, the EIR here 

included a detailed description of the physical environmental conditions in the vicinity of 

the project. Consistent with the Guidelines and established precedent, the EIR used as its 

baseline “the design, operations, and environmental controls described in the 1995 Solid 

Waste Facilities Permit and other current permits, based on the 1994 [final ]EIR, as well 

as other applicable permits that have undergone separate environmental review.” 

(Communities for a Better Environment v. South Coast Air Quality Management Dist.

(2010) 48 Cal.4th 310, 326, fn. 11; Fairview Neighbors v. County of Ventura (1999) 

70 Cal.App.4th 238, 242-243 [where EIR seeks continuation of operations previously 

reviewed under CEQA, appropriate to use previously approved activities as baseline].) 

 In a somewhat confusing argument, the landfill opponents contend that 

“[e]missions reductions of CO2 from some undefined, unidentified power plants in a 

future hypothetical scenario are not legally part of the environmental baseline.” This 

argument apparently contends that the EIR improperly included off-site power plants as 

part of its baseline. We are not persuaded. The EIR specifically stated that the landfill 

would begin to generate its own power using landfill gas so that it would not have to rely 

on power from offsite sources. Thus, the EIR did not use “hypothetical emission 

reductions” as part of its baseline. We agree with the trial court that the EIR was not 

deficient in this regard. 

 The trial court did fault the EIR for failing to estimate the CO2 emissions from the 

proposed onsite generation of electricity. According to the EIR: “Inventories of GHG 

emissions consider CO2 from decomposition of organic material to be ‘biogenic’—a 

component of the natural cycling of carbon in the biosphere and the atmosphere—and 

therefore these emissions are not ‘counted,’ ” and the report cited (but did not include) 
43

reference materials supporting this approach. Appellants explain on appeal: “In other 

words, CO2 emissions would occur irrespective of whether methane combustion occurs. 

Accordingly, [landfill gas] derived emissions of CO2—including CO2 emissions from a 

[landfill gas to energy facility]—are considered part of the carbon cycle by all major 

GHG emission inventory and reporting systems.” In the trial court, appellants explained 

the EIR did not separately calculate the emissions of CO2 from the proposed facility 

because authoritative sources did not count natural production of CO2 as a GHG 

emission. The trial court sided with the landfill opponents, concluding that “Defendants 

[did] not specifically cite to the location in the referenced studies or reports that support 

[the EIR’s] methodology.”17

 The landfill opponents contend that the EIR “fails as an informational document” 

because it did not discuss “CO2 emissions from combusting methane in the Landfill Gas 

to Energy system.” They argue generally that omitting CO2 emissions from the EIR 

“denied the public the right to informed meaningful participation and denied [Marin 

EHS] the ability to engage in informed decision-making.” But they do not specifically 

address whether the EIR was required to discuss the CO2 emissions from the new onsite 

energy system in light of the EIR’s approach not to count these emissions because they 

would displace CO2 that would be produced naturally through decomposition processes. 

 We acknowledge the EIR contains a small universe of evidence to support this 

approach. Redwood and Marin County note that the EIR “relied upon, and cited to, 

multiple technical reports asserting that biogenic CO2 is not counted in [greenhouse gas] 

emission inventories.” In their opening brief, however, they specify only two of those 

reports, which are apparently not contained in the administrative record. Finally in their 

 

17 The trial court presumably meant that defendants did not adequately cite to the 

authorities in the EIR, as opposed to in their opposition brief in the trial court. Redwood 

and the Marin County entities posit that although the trial court did not cite authority for 

its ruling, it may have relied on Guidelines section 15148, which provides that any 

engineering-project reports and scientific documents relied on should be cited in the EIR 

but not included, and that the EIR “shall cite all documents used in its preparation 

including, where possible, the page and section number of any technical reports which 

were used as the basis for any statements in the EIR.” 
44

reply brief, they direct this court to a copy of one of the sources, a December 2006 staff 

report from the California Energy Commission titled “Inventory of California 

Greenhouse Gas Emissions and Sinks: 1990 to 2004.”18 According to the report, “CO2

and nitrous oxide emissions to the atmosphere occur when municipal solid waste . . . is 

combusted to make electricity. A portion of the waste stream is biogenic, and these CO2

emissions are not counted because the carbon is recycled during the growth period of the 

biogenic materials.” They also point to a memorandum dated June 6, 2008, from SCS 

Engineers, which states: “Carbon dioxide emissions from flaring [landfill gases] or from 

[internal combustion] engines are considered biogenic in nature and are commonly not 

counted in GHG inventories, including those at the state and federal level. However, the 

EIR for this project conservatively included these emissions from the flaring of [landfill 

gas]. The [final EIR] did not explicitly list GHG emissions from the proposed [internal 

combustion] engines because emissions essentially do not change from the flaring of 

[landfill gas]. As such, the level of detail of analysis of potential [greenhouse gas] 

emissions from the [internal combustion] engines is appropriate. The [final EIR] did 

disclose that [internal combustion] engines are slightly less efficient than the flares in 

converting methane to carbon dioxide, so they are likely to have slightly greater methane 

emissions and slightly lower carbon dioxide emissions.”19 While this discussion may not 

have been exhaustive, we conclude there is sufficient evidence to support the EIR’s 

methodology as correct, especially since there is no indication it was incorrect. 

 The landfill opponents argue this court should not rely on the June 6, 2008 

memorandum on the grounds that it is conclusory and was submitted late in the process. 

But, again, they cite no evidence suggesting the inaccuracy of the EIR’s premise that CO2

emissions from the new onsite energy system would largely displace CO2 that would be 

 

18 This court took judicial notice of this and other documents on July 24, 2013, without a 

determination of relevance. 

19 Appellants also cite to two documents that appear to have nothing to do with 

calculating CO2 emissions: an environmental engineer’s résumé, along with a response 

comment that touts the benefits of onsite energy facilities but does not specifically 

address measuring CO2 emissions. 
45

produced naturally through decomposition processes. Given that we presume the EIR to 

be adequate and that it is not our role to substitute our judgment for that of the agency, 

we conclude that the EIR was sufficient as an informational document in this regard. 

III. 

DISPOSITION

 The trial court’s granting the petition for a writ of mandate is affirmed in part and 

reversed in part. The matter is remanded, and the trial court is instructed to enter, 

consistent with this opinion, a new and different order denying the petition for writ of 

mandate. Appellants and real party in interest shall recover their costs incurred on appeal 

jointly and severally from respondents. 

 _________________________ 

 Humes, J.*

We concur: 

_________________________ 

Reardon, Acting P.J. 

_________________________ 

Rivera, J. 

 

* Presiding Justice of the Court of Appeal, First Appellate District, Division One, 

assigned by the Chief Justice pursuant to article VI, section 6 of the California 

Constitution.