Last Friday, Feb. 25, 2022, attorneys representing Discovery Builders and their Faria new home development requested a new trial for the lawsuit by Save Mount Diablo, following a judge’s decision in favor of the environmental group to stop the project. As previously reported, on March 30, 2021, Save Mount Diablo filed a lawsuit challenging the City of Pittsburg’s approval of the 1,650-unit Faria project, on the ridgeline between Pittsburg and Concord. According to the agenda item documents, the master plan overlay district encompasses approximately 607 acres of land. (See related article)
Save Mount Diablo Says Motion for New Trial “Should Be Denied”
Asked about the motion for a new trial, Save Mount Diablo Executive Director, Ted Clement responded, “Regarding the Seeno companies/Pittsburg request for a new trial, the Court has already rejected their arguments for reasons fully set forth in its decision. Their Motion for New Trial does not question the adequacy of the administrative record on which the Court properly based its decision (and which the City itself prepared) or suggest there was any other irregularity or unfairness in the hearing. Instead, they seek a second bite of the apple.”
“Their Motion reargues issues that were fully briefed and addressed in the Court’s Decision,” he continued. “They also seek to introduce irrelevant and improper extra-record evidence, violating black letter law that CEQA actions must be decided on the record that was before the agency when it made its decision.”
“Because their Motion provides no basis for this Court to order a new trial solely on the issues decided adverse to them, it should be denied,” Clement concluded.
CONTRA COSTA COUNTY — On February 10, 2022, the Contra Costa County Superior Court handed Save Mount Diablo a major victory in its legal challenge to the City of Pittsburg’s approval of the 1,650-unit Faria/Southwest Hills Project.
According to the ruling, the city’s environmental review was inadequate in numerous ways. Faria was proposed by Seeno companies/Discovery Builders, Inc./Faria Investors LLC on the spectacular and highly visible major ridgeline between Pittsburg and Concord and could include grading and houses visible across the ridge.
As a result, the City of Pittsburg is required to overturn approvals for the project and correct environmental review. The city and Seeno/Discovery Builders will also be required to pay Save Mount Diablo’s legal fees.
It remains to be seen whether the developers, Discovery Builders, Inc. and Faria Land Investors, LLC, or the City of Pittsburg will appeal the decision.
The Pittsburg City Council—then-Mayor Merl Craft; then–Vice Mayor Holland Barrett White; and Councilmembers Shanelle Scales-Preston, Juan Antonio Banales, and Jelani Killings—all voted to approve the proposal in February 2021. (The mayor and vice-mayor designations rotate among the councilmembers.) They ignored hundreds of letters and public comments that opposed the project. Save Mount Diablo filed a lawsuit challenging the project’s approval in March 2021.
If the project had moved forward, it would have meant the development of a major, new residential subdivision on 606 acres of ridgeline and hillside grazing land in what is currently unincorporated Contra Costa County, immediately south of the City of Pittsburg.
The biologically rich site supports sensitive wildlife species and rare plants and is in one of the most visible and most environmentally constrained areas of the county. The Faria project would have fragmented open space and damaged wildlife corridors.
The proposed housing development would have changed the beautiful green hills forever by annexing the property to the City of Pittsburg and locating 1,650 new residences far from jobs, transit, and services.
The Faria project would have also impacted the new East Bay Regional Park District (EBRPD) Thurgood Marshall Regional Park – Home of the Port Chicago 50 at the Faria site’s southwestern edge, formerly part of the Concord Naval Weapons Station. Save Mount Diablo and its partners advocated for the creation of this new park over many years. The Faria project would have been located directly above the new park on a ridgeline, degrading views from surrounding areas.
The Contra Costa Superior Court ruled that the City of Pittsburg’s environmental review of the project was inadequate in four major ways:
It failed to analyze any impacts that would results from the 150 accessory dwelling units that were added by the City of Pittsburg at the last minute. This is important because the number of units affects every part of environmental review from traffic to water supply to schools, etc. and will make correcting the environmental review complicated;
It failed to include a baseline description of biological resources that could be impacted by the project, specifically special-status plant species;
It failed to consider the water supply impacts of adding 1,650 new housing units in the area, which is especially important given years of drought and increasing fire danger; and
It failed to adequately disclose or mitigate the project’s air quality impacts, including greenhouse gas impacts, without which development will continue to make the climate crisis much worse.
“The court’s decision says to developers: ‘You don’t get to kick the can down the road. You have to do a thorough analysis of your project’s impacts before you lock in project approvals,’” said Winter King, Save Mount Diablo’s attorney from Shute, Mihaly & Weinberger. “The court got it right.”
The court’s ruling means that the City of Pittsburg’s approval of the project is null and void.
The court also noted that additional impacts—such as geologic hazard impacts resulting from grading and filling, and impacts on streams and agricultural lands—would need to be addressed in more detail.
Save Mount Diablo Executive Director Ted Clement said, “Throughout the East Bay, residents have worked hard to protect our ridges and views, flora and fauna, and to defend our parks. In this case that was just decided in our favor, Save Mount Diablo had to stand up against some very powerful interests to help further the work of protecting these treasured resources, which add so much to our collective quality of life.”
“Although I’ve worked for Save Mount Diablo on this issue, I’m also a Concord resident,” said Juan Pablo Galván Martínez, Save Mount Diablo’s Senior Land Use Manager. “This project infuriated me as an open-space lover, a wildlife enthusiast, and someone who is deeply worried and taking action to stop catastrophic climate change. Since this affects both cities, I want both city councils to work together to protect the hills and ridgeline.”
“This is a major victory for Pittsburg’s hills,” stated Save Mount Diablo Land Conservation Director Seth Adams. “Open space, habitat for wildlife, and the community’s scenic views have won the day, and poorly planned development will not go forward, for now. We are very happy with the court’s decision.”
“On the other hand,” said Adams, “while our victory is costly for the city and Seeno/Discovery Builders in time and money, it does not stop the project forever. After correcting environmental documents, the Pittsburg City Council can approve Seeno’s huge project again if they choose. But now they have a second chance to make it better by protecting the ridgeline and neighboring regional park. We don’t have to argue about protecting ridgelines in other cities. The Pittsburg City Council should do the right thing.”
Save Mount Diablo
Save Mount Diablo is a nationally accredited, nonprofit land trust founded in 1971 with a mission to preserve Mount Diablo’s peaks, surrounding foothills, watersheds, and connection to the Diablo Range through land acquisition and preservation strategies designed to protect the mountain’s natural beauty, biological diversity, and historic and agricultural heritage; enhance our area’s quality of life; and provide educational and recreational opportunities consistent with protection of natural resources. To learn more, please visit www.savemountdiablo.org.
Three years after the Dakota Access pipeline first started carrying oil, a federal judge ordered Monday that the pipeline must be shut down during a court-ordered environmental review that is necessary because the U.S. government violated federal environmental law, in a decision seen as a victory for the Standing Rock Sioux Tribe and a defeat for the oil industry and President Donald Trump, who backed it in 2017.
In 2016, the Standing Rock Sioux, Cheyenne River Sioux and other American Indian tribes sued the U.S. Army Corps of Engineers for approving the Dakota Access pipeline, saying it put tribal water supplies and cultural resources at risk.
The Obama administration paused the project in 2016 after thousands of pipeline opponents protested, but Trump put it back on track after taking office in 2017.
U.S. District Judge James Boasberg wrote that the court found that the U.S. Amy Corps of Engineers violated the National Environmental Policy Act when it granted an easement to Dakota Access to create a segment of the crude-oil pipeline without writing the required Environmental Impact Statement.
Energy Transfer Partners, the parent company of the Dakota Access pipeline, argued that the project could lose as much as $643 million in 2020 and $1.4 billion in 2021 and that the shutdown would have serious consequences for the North Dakota oil industry and the entire state of North Dakota because its economy is largely dependent on revenue from oil and gas taxes; the tribes argued that the projections were “wildly exaggerated” because a collapse in oil prices, demand and production had already caused production to plummet.
The court noted the “serious effects” the shutdown would have for many states, companies and workers but wrote that, “given the seriousness of the Corps’ … error, the impossibility of a simple fix, the fact that Dakota Access did assume much of its economic risk knowingly, and the potential harm each day the pipeline operates, the Court is forced to conclude that the flow of oil must cease.”
Energy Transfer told Bloomberg Law it plans to immediately ask Boasberg to freeze the decision and will head to the U.S. Court of Appeals if the request is denied.
“Today is a historic day for the Standing Rock Sioux Tribe and the many people who have supported us in the fight against the pipeline,” Standing Rock Sioux Tribal Chairman Mike Faith said in a statement provided to Bloomberg Law. “This pipeline should have never been built here. We told them that from the beginning.”
The decision states that the pipeline must be shut down within 30 days and can not re-open until the report is created. The court expects it will take 13 months.
Hollywood celebrities including Jane Fonda, Mark Ruffalo, Susan Sarandon, Leonardo DiCaprio, Gal Gadot and Ben Affleck spoke out against the pipeline and Shailene Woodley was arrested at a protest.
NEB Sidesteps ‘Significant’ Impacts, Recommends Trans Mountain Pipeline Approval
By Mitchell Beer, February 25, 2019
Canada’s National Energy Board is recommending federal cabinet re-approval of the controversial Trans Mountain pipeline expansion despite its likely “significant” environmental and climate impacts, prompting multiple Indigenous and environmental opponents to vow the project will never be completed.
“The project would cause ‘significant adverse environmental effects’ on the southern resident killer whale population, and while a worst-case spill from the pipeline or an oil tanker is not likely, ‘the effects would be significant,’” CBC reports, citing NEB Chief Environmental Officer Robert Steedman.
“While these effects weighed heavily in the NEB’s consideration of project-related marine shipping, the NEB recommends that the Government of Canada find that they can be justified in the circumstances, in light of the considerable benefits of the project and measures to minimize the effects,” the NEB decision stated.
“Grand Chief Stewart Phillip, president of the Union of British Columbia Indian Chiefs (UBCIC), said it’s ‘ludicrous’ that economic interests are considered more important than killer whales,” National Observer reports. “We are proud British Columbians, and we have a duty to protect what we’ve all been blessed with in British Columbia in regard to the pristine beauty of the environment,” Philip said. “We will rise to the challenge.”
“I think the NEB has a long record of siding with industry over communities and other concerns…so we have every expectation that they’re going to recommend the project go ahead despite the serious problems with it,” said Stand.earth climate campaigner Sven Biggs, in the lead-up to the NEB announcement. “It’s likely there are going to be more lawsuits and more delays because of them, and if the cabinet decides to go ahead and restart construction, you’ll see protests in the streets and along the pipeline route.”
Canadian Chamber of Commerce CEO Perrin Beatty “said he was pleased the NEB sees the project as a matter of ‘national interest’, and ‘now it is up to the federal government to take the steps necessary for getting this pipeline built without any further delay’,” Observer states.
Natural Resources Minister Amarjeet Sohi called the ruling “an important milestone”, adding that Ottawa is in a “very strong position” to wrap up project consultations with affected Indigenous communities within 90 days.
“We know how important this process is to Canadians,” Sohi said in a prepared statement. “We are hopeful the work we are doing will put us in a strong position to make a decision.”
The NEB attached 16 new conditions to the approval, on top of the 156 it had already imposed, including “measures to reduce underwater noise and to protect marine species from collision, reduce the emissions of vessels, among other issues,” Observer reports. “The NEB said it applied the precautionary principle, requiring that environmental measures must anticipate and prevent environmental harm, when considering human industrial involvement with the ‘complex and interconnected ecosystem’ of the Salish Sea.”
The Board added that the pipeline “remains in the public interest of Canada,” CBC writes. “The regulator provided a list of ‘considerable’ benefits from the project including jobs across the country, government revenues, spending on pipeline materials, greater market access for Canadian oil, and training, jobs, and business opportunities for local Indigenous communities.”
It added that marine traffic off the B.C. coast is on track to increase, with or without an expanded pipeline. “The panel feels strongly that if these recommendations are implemented, they will offset the relatively minor effects of the project-related marine traffic and, in fact, will benefit the entire Salish Sea ecosystem,” Steedman said.
For the groups that have been fighting the pipeline, the decision was just another step on a long road.
“We still say no to the project,” said UBCIC Secretary Treasurer, Chief Judy Wilson. Even if one nation, one community says no, that project is not happening.”
“The troubling part for me and First Nations concerned about their water and their territories is the fact that Trudeau has stated this pipeline will be built, full stop. It makes an absolute mockery of the consultation process that was court ordered and has been accomplished today,” added UBCIC Vice President and Kwikwasut’inuxw Haxwa’mis Chief Bob Chamberlin.
“The NEB has effectively ignored the impacts on whales, Indigenous communities, and the climate. Now it is up to cabinet to reject the NEB’s recommendation and refuse to approve the project,” said Ecojustice lawyer Dyna Tuytel.
Climate Convergence Metro Vancouver responded with a Friday afternoon demonstration outside local CBC offices. “The world’s climate scientists are clear: we have 12 years to drastically reduce carbon emissions or face catastrophic consequences,” the organization stated on Facebook. “We can do this, but the clock is ticking. Instead of making urgent and meaningful investments in sustainable development and renewable energy projects, the Trudeau government is committing billions in public funds toward expanding dirty tar sands bitumen extraction.”
The news report on Common Dreams captured crossborder reaction, as well.
“I understand in British Columbia, this pipeline will provide a way of having an income,” said Noel Purser of the Suquamish Tribe, one of four Northwest U.S. Indigenous communities that challenged the project in 2013. “But is it worth the potential of a spill, that risk? Is it really worth that? Because that will impact everybody, not just here in British Columbia. It will impact us in Suquamish; it will impact our relatives in Alaska.”
“Once again, Canada’s NEB has sided with short-term Big Oil profits instead of the long-term health of the Pacific Northwest’s people, climate, and orcas,” said Marcie Keever of Friends of the Earth. “Shame on Prime Minister Trudeau, his government, and the National Energy Board of Canada for ignoring widespread opposition and serious concerns in favor of this destructive pipeline. Canada’s decision will likely bring about the extinction of the Northwest’s iconic killer whales and drive us further towards the brink of climate chaos.”
Writing in the week or so before the decision, Dogwood BC’s Kai Nagata circulated a list of the things he would and would not do once the widely-expected announcement was official.
“Here’s what I’m going to do when the news comes out: Take a deep breath, walk the dog, make dinner for my kid,” he wrote. “Here’s what I’m not going to do: Wail, gnash teeth, rend my garments, wallow in despair.”
All of that on the assumption that the outcome of the NEB’s review was already as certain as death and taxes.
“Justin Trudeau can promise hope and change and reconciliation and all that nice stuff. At the end of the day, he does what the oil companies tell him,” he wrote. “So that’s what’s wrapping up this week—another rigged review by an industry-funded, industry-staffed regulator that has never said no to a pipeline.” But “we also need to build our energy for the bigger fight ahead,” beginning when the project receives federal cabinet approval.
“That’s going to take hard work. And hard work requires us to slow down and take care of the basics: sleep, food, fresh air, our relationships with family and friends,” he wrote. But despite the “hell of a beating” communities have taken from fossil companies over the last couple of years, “I’m feeling calm and confident,” he concluded. “I hope you do, too.”