10211 Sunland Blvd., Shadow Hills, CA 91040. (818) 650-0030 X101 [email protected] Advocates for the Environment
A non-profit public-interest law firm
and environmental advocacy organization
10211 Sunland Blvd., Shadow Hills, CA 91040. (818) 650-0030 X101 [email protected]
10211 Sunland Blvd., Shadow Hills, CA 91040. (818) 650-0030 X101 [email protected]
10211 Sunland Blvd., Shadow Hills, CA 91040. (818) 650-0030 X101 [email protected]
10211 Sunland Blvd., Shadow Hills, CA 91040. (818) 650-0030 X101 [email protected]
10211 Sunland Blvd., Shadow Hills, CA 91040. (818) 650-0030 X101 [email protected]
JN 1046-005
MEMORANDUM
TO: Salvador Quintanilla, Senior Planner
City of Fontana
Planning Department
8353 Sierra Avenue
Fontana, CA 92335
FROM: David Ornelas, Senior Associate
DATE: April 24, 2024
RE: Response to Advocates for the Environment Appeal of MCN 21-038
T&B Planning, Inc. (T&B Planning) is the environmental consulting firm that prepared the Environmental Impact Report (EIR) for the Cypress and Slover Warehouse project (Master Case No. 21-038, hereinafter “Project”). T&B Planning has prepared this memorandum in response to the March 25, 2024, letter sent to the City of Fontana by Advocates for the Environment as an appeal to the Fontana Planning Commissions decision from March 19, 2024, to approve the Project (hereinafter “Appeal Letter”).
The Appeal Letter claims various deficiencies in the greenhouse gas emissions analysis for the Project and, also, argues for additional mitigation measures to reduce greenhouse gas (GHG) emissions associated with the Project.
The comments in the Appeal Letter repeat comments made by Advocates for the Environment in a comment letter to the City dated August 18, 2023 (hereinafter “Comment Letter”). On March 12, 2024, T&B Planning submitted a memorandum to the City that provided detailed responses to each of the comments from the Comment Letter and demonstrated that the that the GHG impact analysis that was performed for the Project was legally adequate and technically accurate (hereinafter “Response Memo”). The Response Memo was part of the Project’s public record that was considered by the Fontana Planning Commission when the Commission made its decision to approve the Project. The Response Memo is attached hereto for reference. Because the Response Memo addressed all the comments from the Comment Letter and because the Appeal Letter does not raise any new comments that were not previously addressed by the Response Memo, no further responses are necessary.
Attachment: Memorandum from T&B Planning, Inc. titled “Response to Advocates for the Environment Comment Letter,” dated March 12, 2024.
JN 1046-005
MEMORANDUM
TO: Jon Dille, Associate Planner
City of Fontana
FROM: David Ornelas, Senior Associate
DATE: March 12, 2024
RE: Response to Advocates for the Environment Comment Letter
T&B Planning, Inc. (T&B Planning) is the environmental consulting firm that prepared the Environmental Impact Report (EIR) for the Cypress and Slover Warehouse project (hereinafter “Project”). T&B Planning has prepared this memorandum in response to a letter sent to the City by Advocates for the Environment, dated August 18, 2023 (hereinafter “Comment Letter”). The Comment Letter alleges deficiencies with the greenhouse gas (GHG) impact analysis presented in the EIR. This memorandum addresses the Comment Letter and demonstrates that the GHG impact analysis that was performed for the Project was legally adequare and technically accurate . Accordingly, the conclusions presented in the EIR are valid. The responses provided below and on the following pages are presented to correspond with the topics that were discussed in the Comment Letter.
Net-Zero GHG Emissions
The Commenter argues that the Project should provide fair share mitigation for GHG emissions but contradicts this assertion by advocating that the City hold the Project to a net- zero standard for GHG emissions, providing neither evidence that imposing a ne t-zero requirement is feasible nor commensurate with the scale of the Project’s impact. The Commenter also argues that net- zero GHG emissions are necessary to ensure Project consistency with the CARB 2017 and 2022 Scoping Plans. The Commenter’s assertion t hat requiring net -zero emissions from the Project would be feasible is inaccurate as are the Commenter’s allegations that requiring net- zero emissions is necessary to ensure Project compliance with the California Air Resources Board (CARB) 2017 or 2022 Scoping Plans. In fact, the CARB 2022 Scoping Plan specifically cautions against using net -zero targets at Appendix D, page 18 of the Scoping Plan:
Jurisdictions should also avoid creating targets that are impossible to meet as a basis to determine significance. For example, a net-zero target may imply that the GHG emissions of any project that are not reduced or offset to zero would be considered pot entially significant. This may lead to undue burdens and frustrate project approval processes, which may be particularly problematic for residential development in climate-smart, infill areas. In addition, some jurisdictions have more land capacity to remo ve and store carbon, while others host GHG -emitting facilities that serve necessary functions and will take time to transition to new technology (e.g., municipal wastewater treatment plants, landfills, energy generation facilities).
RESPONSE TO ADVOCATES FOR THE ENVIRONMENT COMMENT LETTER March 12, 2024
With respect to Project-related emissions of GHGs, based on the data presented in DEIR Table 4.6-4 and conditions of approval the City will apply to the Project, mobile source (i.e., vehicle and equipment tailpipes) emissions would account for approximately 73% of the Project’s estimated annual emissions of GHGs. Neither the Project Applicant nor the City of Fontana can regulate emissions from vehicle tailpipes, which instead are regulated at the State and federal levels. Thus, the only way to achieve net- zero emissions for the Project’s mobile sources would be to require that all the Project’s heavy -duty trucks consist of fully electric vehicles. However, such a requirement is not feasible. First, there is not enough electrical grid power to sustainably charge these trucks. For example, a California company attempted to electrify 12 forklifts, which require significantly less power than trucks, and local power utilities told the company that it was not possible.1 In a May 2023 report by Resources for the Future, titled Medium- and Heavy-Duty Vehicle Electrification: Challenges, Policy Solutions, and Open Research Questions , the report states that charging for medium- and heavy-duty electric vehicles (“MHDEVs”), which may exceed several MWs of demand for large fleets , could destabilize electricity distribution systems. Additionally, due to logistical and operational barriers, MHDEVs must be comparable to diesel vehicles in model options, range, recharge time, payloads, and maintenance.
2 However, MHDEVs generally have ranges below 200 miles, versus more than 1,000 miles for diesel vehicles.3 Additionally recharge times are substantially longer than diesel refueling. For example, a clean diesel truck can spend 15 minutes fueling anywhere in the country and then travel about 1,200 miles before fueling again. 4 In contrast, today’s long- haul battery electric trucks have a range of about 150 -330 miles and can take up to 10 hours to charge. 5 Moreover, fleets without a charging depot will need to rely on public charging stations.
In addition to the barriers described above, the simple fact is that zero -emission trucks are currently cost prohibitive for most fleet owners. A new, clean-diesel long-haul tractor typically costs in the range of $180,000 to $200,000.6 Meanwhile, a comparable battery -electric tractor – with a quarter of the range and thus requiring frequent and long hours of charging – costs upwards of $480,000.7 This $300,000 upcharge is cost prohibitive for the overwhelming majority of truck carrie rs as more than 95% of trucking companies are small businesses operating ten (10) trucks or fewer. 8 Not only do the trucks themselves pose a financial burden, so does the installation of a charging station, which can exceed $100,000. 9 As stated previously, many small trucking businesses will thus be required to use public charging stations, at which the infrastructure for such charging is not widely available.10 Finally, if the above challenges were not enough, there is a significant constraint in sourcing enough raw minerals needed to produce the lithium-ion batteries used in these zero-emission trucks. For example, tens of millions of tons of cobalt, graphite, lithium, and nickel will need to be produced. 11 It is estimated that it could take up to 35 years to acquire all the minerals needed to generate enough truck batteries for current levels
1 htps://www.trucking.org/news-insights/heavy-dose-reality-electric-truck-mandates 2 Id.
3 Id.
4 Id.
5 Id.
6 Id.
7 Id.
8 Id.
9 htps://media.rff.org/documents/Report_23-03_v3.pdf
10 htps://www.ccjdigital.com/alterna�ve-power/batery-electric/ar�cle/15545697/charging-forward-with-electric-truck- charging-sta�ons
11 htps://www.trucking.org/news-insights/heavy-dose-reality-electric-truck-mandates
RESPONSE TO ADVOCATES FOR THE ENVIRONMENT COMMENT LETTER March 12, 2024
of global production. 12 Additionally, expanding capacity and sourcing this amount of material creates massive environmental effects, that in some respects could exceed the emissions of current clean-diesel trucks.13 Further, for the Project to achieve net-zero GHG emissions all private vehicles used by Project employees to commute to and from the Project Site would need to be fully electric vehicles. Neither the Project Applicant nor the City have the ability to implement nor enforce such a requirement. Accordingly, it would not be feasible to require the Project to achieve net-zero GHG emissions associated with the Project’s mobile source emissions.
The second largest source of the Project’s estimated GHG emissions would occur as a result of the Project’s energy consumption. The Project’s building is not anticipated to utilize natural gas; thus, the only source of GHG emissions associated with the Project’s energy demands would be from electricity. Further, as required by the City of Fontana’s Industrial Commerce Centers Sustainability Standards , the Project Applicant is required to install and utilize rooftop solar panels as the source of all electric ity for the proposed building except for the electricity needed for any refrigerated/cold storage space. Electricity would be provided to the Project by Southern California Edison (SCE). Neither the Project Applicant nor City of Fontana can affect SCE’s energy portfolio, as renewable energy requirements for public utilities are regulated at the State and federal levels. Furthermore, SCE already is committed to increasing its reliance on renewable sources of energy production, as required pursuant to Senate Bill 350 (SB 350), the Clean Energy and Pollution Reduction Act of 2015. Pursuant to SB 350, SCE is required to increase the amount of electricity procured from renewable energy sources from 33% to 50% by 2030, with interim targets of 40% by 2024, and 45% by 2027. It would not be feasible for the Project to achieve 100% of its energy demands through renewable energy production on site, as the roof of the proposed buildings would not have adequate area to accommodate sufficient solar panels to achieve 100% renewable energy production on site (only if cold/refrigerated storage is incorporated into the building) . Accordingly, it is not feasible to require that 100% of the Project’s electricity demand must be met through renewable energy sources.
The commenter also refers to the Newhall Ranch and Centennial (Tejon Ranch) development projects as examples of (voluntary) net-zero development. The capabilities and feasibility of mitigating GHG impacts for Newhall Ranch and Tejon Ranch are different than those for the proposed Project due to their vastly different scales. Newhall Ranch is a mixed -use project that will provide 21,500 residential homes and over 11.5 million square feet of commercial retail and industrial land uses, while Tejon Ranch is a mixed -use project that will provide 19,300 residential homes and 10.1 millio n square feet of retail, commercial, and institutional uses. Given the size s and scopes of the Newhall Ranch and Tejon Ranch projects, the y are not directly comparable to the Project, which proposes a different type of land use (industrial warehouse) and provides only one building at fraction of the total building area as compared to the tens of thousands of buildings proposed by the Newhall Ranch and Tejon Ranch projects. The sheer differences in size affords the Newhall Ranch and Tejon Ranch opportunities to reduce GHG emissions and economies of scale in incorporating new technologies to reduce GHG emissions that are not available for the Project.
For the reasons noted above, it would not be feasible to require the Project to achieve net-zero GHG emissions.
In addition, the Commenter is incorrect in asserting that development projects must achieve net- zero GHG emissions to demonstrate consistency with the CARB 2017 or 2022 Scoping Plans. The CARB 2017 and 2022 Scoping Plans do not identify any such requiremen t (furthermore, the CARB 2022 Scoping Plan post -dates the
12 Id.
13 Id.
RESPONSE TO ADVOCATES FOR THE ENVIRONMENT COMMENT LETTER March 12, 2024
Project’s Notice of Preparation and is not applicable to the Project’s environmental analysis) . The analysis of Threshold “b” in DEIR Subsection 4. 6, Greenhouse Gas Emissions, provides an analysis of and demonstrates the Project’s consistency with the CARB 2017 Scoping Plan. As this comment does not identify any deficiencies in the DEIR’s analysis of Project consistency with the 2017 Scoping Plan, no revision to the EIR is warranted pursuant to this comment.
Sufficiency of Mitigation for GHG Emissions
The Commenter argues that feasible mitigation is available to reduce Project -related GHG emissions and should be required by the Project’s EIR and that the EIR lacks substantial evidence to support its conclusions. Since the Commenter submitted this commen t letter to the City, the Project’s EIR has been supplemented to summarize the numerous design features required by the City’s Industrial Commerce Centers Sustainability Standards to reduce GHG emissions, including but not limited to the requirement for rooftop solar panels, prohibition of diesel generators, and requirements for use of electric equipment on-site. The EIR also has been updated to include new mitigation measures to reduce Project-related GHG emissions, including but not limited to a requirement for the proposed building to be constructed to the equivalent of LEED “Silver” standards and restrictions placed on diesel truck idling on -site. Refer to Pages 4.6 -22 to 4.6-26 of the Project’s Final EIR for a detailed discussion of design features and mitigation measures that are required to reduce GHG emissions; the implementation of these items would substantially reduce GHG emissions associated with the Project. Contrary to the Commenter’s opinion, and addressed by the preceding response, the use of electric haul trucks is not a feasible mitigation option for the Project. The Project’s Final EIR includes substantial evidence to support its conclusions and no further revisions are needed.
Operational Mitigation Measures
The Commenter offers mitigation measures to potentially reduce GHG emissions from Project operation. The Project already is required by the State building Code and the City’s Industrial Commerce Centers Sustainability Standards to provide a solar reflective roof, preferable parking for carpools and vanpools, bicycle parking, and charging stations for passenger electric vehicles (and additional conduit for future expansion of passenger vehicle electric vehicle charging and heavy truck charging) – all of these are measures recommended by the Commenter.
The Project Site also abuts a public transit stop (Omnitrans Route 82); access to public transit is another request of the Commenter. The Commenter does not provide substantial evidence that additional design or mitigation measures are available that would reduce operational GHG emissions and that are not already incorporated into the Project or required by applicable local and State regulations. No changes to the EIR are needed.
Rooftop Solar Panels
The Commenter makes erroneous statements that the Project will construct a “solar ready” roof in lieu of installing rooftop solar panels, citing statements that are purported to come from the Project’s EIR, while advocating for the installation of rooftop solar panels on the proposed building. The statements cited by the Commenter were not made in the Project’s EIR or any of the technical reports appended to the EIR. Further, as described in multiple instances throughout the EIR, the Project will install ro oftop solar panels that will supply 100% of the power needed to operate all non -refrigerated portions of the Project as required by the City’s Industrial Commerce Centers Sustainability Standards (see EIR Pages 4.1-19 & -20, 4.6-15, -16, and -23). Because the Project already will be required to provide rooftop solar panels, no changes to the Project’s proposal or the EIR are necessary.
RESPONSE TO ADVOCATES FOR THE ENVIRONMENT COMMENT LETTER March 12, 2024
Alternative Refrigerants
The Commenter asserts that the City should require the Project to provide a mitigation measure that requires the proposed building to utilize refrigerants with a low Global Warming Potential (GWP), citing a recommendation from the CARB 2022 Scoping Plan. As noted in the Final Environmental Analysis for the CARB 2022 Scoping Plan, CARB already has a regulation in place to minimize GHG emissions from refrigerants (The Refrigerant Management Program, codified at 17 CCR § 95380 et seq.).
14 Furthermore, as noted in the Final Environmental Analysis15:
Finally, it is important to note that under the American Innovation and Manufacturing (AIM) Act of 2020, a national HFC phasedown is now underway in the United States. Under the phasedown, a nationwide shift away from high-GWP HFCs to lower-GWP and HFC-free alternatives is expected to occur. The national phasedown mirrors the global HFC phasedown already in effect under the Kigali Amendment to the Montreal Protocol. These measures have paved the way for a global technological shift towards lower-GWP and HFC-free alternatives in all sectors that rely on HFCs.
Thus, any major shifts in the HFC market – such as increased production and imports of lower GWP alternatives, modifications to facilities where these gases are produced and used, and enhanced transportation of high- and low -GWP gases – will be driven predominantly by the global and national HFC phasedowns currently underway, not by California’s measures.
As demonstrated by the above text from CARB, the global market already is moving to low-GWP refrigerants and over the course of the Project’s lifespan it is unlikely that high-GWP refrigerants would be used in any substantive form on the Project Site. Based on the CARB regulation already in effect and the global phasedown of high -GWP refrigerants, no additional mitigation is needed for the Project.
Carbon Offsets
The Commenter asserts that the EIR should incorporate carbon offsets as a viable mitigation option for GHG emissions.
Although the Commenter is correct that carbon offsets can be purchased, recent Court of Appeal decisions have cast considerable doubt on the use of such offsets to mitigate GHG impacts from land use development projects. In Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, the Court of Appeal invalidated a mitigation measure that required the purchase of offsets from a “CARB- approved registry, such as the Climate Action Reserve, the American Carbon Registry, and the Verified Carb on Standard.” ( Id. at 510.) Although the court insisted its decision “should not be construed as blanket prohibition on using carbon offsets” to mitigate GHG emissions under CEQA, it found numerous flaws with the measure at issue and failed to provide a clear roadmap for how to craft a similar valid measure. The court also declined to express an opinion on a number of issues, including whether offsets could potentially be used to mitigate more than 8 % of a project’s emissions and the extent to which out -of-county offsets could be used. ( Id. at 503, 513, n. 27.) Subsequent to Golden Door (and within the last year), another measure requiring the purchase of offsets was similarly found to be invalid in an unpublished Court of Appeal decision, with the court finding the measure’s inclusion of additional standards for offsets did “not cure th e defects found in Golden Door.” (Sierra Club v. County of San Diego (Dec. 21, 2021, No. D077548) 2021 WL 6050624, at *11.) Considering such uncertainty, carbon offsets are not a feasible method for mitigating the Project’s GHG emissions.
14 htps://ww2.arb.ca.gov/sites/default/files/2022-12/2022-sp-appendix-b-final-environmental-analysis.pdf, (Page 30) 15 Id., (Page 32)
RESPONSE TO ADVOCATES FOR THE ENVIRONMENT COMMENT LETTER March 12, 2024
In addition, it should be noted that the vast majority of GHG emissions that will be generated by the Project, including mobile emissions and energy emissions, are subject to the California Cap and Trade program, which places an economy-wide “cap” on major sources of greenhouse gas emissions, such as refineries, powe r plants, industrial facilities and transportation fuels. Given that more than 73% of the emissions that will be generated by the Project are covered by Cap and Trade and thus are already subjec t to a regulatory program that includes offsets, it would be inappropriate and infeasible to use offsets to mitigate such emissions. Rather, mitigation measures should focus on reducing emissions from the Project.
Indeed, Golden Door and other cases make clear that the purchase of offsets is not a substitute for avoiding emissions and that measures that result in actual reductions in emissions from a development project are preferable to attempting to offset emissions via offsets. Thu s, the EIR requires that the Project implement numerous mitigation measures designed to reduce the Project’s GHG emissions, in addition to regulatory requirements designed to reduce GHG emissions (see EIR Pages 4.6-22 to 4.6-26).
The City has reviewed the Project and its EIR and has determined that all feasible mitigation measures have been incorporated into the EIR. For the reasons discussed above, the City’s experts disagree that the purchase of carbon offsets is a feasible or appropriate way to mitigate the Project’s remaining GHG emissions.
Alternatives
The Commenter argues that an alternative that retrofits and renovates the structures on the Project Site is preferable to the Project and should have been evaluated in the EIR. This comment appears to have been copied from a comment letter for a different project and is not applicable to the Project or the Project’s EIR, as the Project Site does not contain any structures that can be reasonably used or retrofitted/renovated for industrial land uses that would achieve the Project’s goals and objectives. No revisions to the EIR are warranted.
It should be noted that City staff is recommending approval of an alternative evaluated in the Project’s EIR, the Modified Building Operations Alternative. This alternative would place restrictions on the maximum amount of potential refrigerated warehouse space in the Project, which would reduce the Project’s energy consumption and reduce Project-related GHG emissions.