CEQA cannabis lawsuit - City of Fresno

I JAMIE T. HALL (Bar No. 240183) JULIAN K. QUATTLEBAM (Bar No. 214378)

2 CHANNEL LAW GROUP, LLP 207 E. Broadway, Suite 201

3 Long Beach, CA 90802-8824

4 Telephone: (310) 982-1760 Facsimile: (562) 394-1940

5 Attorneys for Petitioners,

6 UNION OF MEDICAL MARIJUANA PATIENTS, INC. and FRESNO CANNABIS ASSOCIATION

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF FRESNO - UNLIMITED CIVIL CASE

I1 UNION OF MEDICAL MARIJUANA PATIENTS, INC., a California Corporation;

12 FRESNO CANNABIS ASSOCIATION, an

PETITION FOR WRIT OF MANDATE

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unincorporated association

vs.

Petitioners,

16 CITY OF FRESNO, a municipal corporation

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Respondent.

Union of Medical Marijuana Patients, Inc. and Fresno Cannabis Association (collectively

referred to as "Petitioners") allege:

1. Union of Medical Marijuana Patients, Inc. ("UMMP") is a civil rights

organization based in downtown Los Angeles founded in 2007. Through legal and political

action in association with education and counseling on compliance with state law, UMMP is

devoted to defending and asserting the rights of medical cannabis patients and promotes a model

of legally compliant medical cannabis patient associations. With a philosophy of personal growth

and social responsibility, UMMP supports patients, their member associations, and the cause of

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freedom of medical choice nationwide. UMMP is committed to sensible regulations for patient

associations and their collectives, responsible actions of patients, and cooperation with law

enforcement. UMMP's members consist of both individual medical marijuana patients and

collective and cooperative associations ("Associations"), including patients and Associations that

would otherwise be affected by the project's environmental impacts.

2. Fresno Cannabis Association ("FCA") is an unincorporated association founded

to defend and assert the rights of medical cannabis patients in the City of Fresno. FCA's

members consist of ordinary citizens, individual patients, and Associations that reside in the City

of Fresno that would otherwise be affected by the project's environmental impacts.

3. Respondent, City of Fresno ("Respondent" or "City") is a charter city

incorporated under the laws of the State of California.

4. The project is the City of Fresno Ordinance Bill No. 2014-20, which prohibits all

cultivation of medical marijuana in the City (the "Project" or "Ordinance"). The City Council

voted to approve the Ordinance on March 27, 2014 and the Mayor opted neither to veto nor

approve the Ordinance, making the effective date of approval April 8, 2014. Respondent is the

lead agency responsible under the California Environmental Quality Act ("CEQA") for

evaluating the environmental impacts of the Project. Attached hereto as Exhibit 1 is a true and

18 correct copy of Ordinance Bill No. 2014-20.

19 5. In 2012, the City adopted Ordinance Bill No. 2012-13, which prohibited the

20 outdoor cultivation of medical marijuana, but did not prohibit either indoor cultivation or

21 cultivation within an outdoor fully-enclosed and secured structure approved by special permit.

22 6. The Project prohibits those forms of cultivation authorized under Ordinance Bill

23 No. 2012-13 resulting in a complete ban on all cultivation of medical marijuana in the City. At

24 the time of the adoption of the Ordinance, there was an estimated 10, 117 medical marijuana

25 patients in the City.

26 7. Respondent determined that the Ordinance was exempt from CEQA, stating:

27 "[S]taffhas performed a preliminary environmental assessment of this project and, pursuant to

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2

PETITION FOR WRJT OF MANDATE

1 CEQA Guidelines, Section !506!(b)(3), has determined that there is no possibility that this

2 project may have a significant effect upon the environment because the outdoor cultivation of

3 marijuana is currently a prohibited use, and this ordinance merely prohibits additional future

4 cultivation of marijuana indoors after the current crop year. This will not result in a substantial or

5 potentially substantial adverse change in any of the physical conditions affected by this

6 prohibition, including land, air, water, minerals, flora, fauna, ambient noise, and objects of

7 historic or aesthetic significance. Instead, the prohibition is anticipated to have positive effects

8 on the environment, including helping to reduce water consumption and eliminate offensive

9 odors. Therefore, this project is not subject to CEQA." Respondent did not conduct an Initial

10 Study or adopt a Negative Declaration pursuant to § 15063 of the CEQA Guidelines.

11 8. The City filed a Notice of Exemption ("NOE") with the Fresno County Clerk on

12 April 3, 2014. The NOE states that the Ordinance is exempt from CEQA pursuant to Section

13 !5061(b)(3) of the CEQA Guidelines. Attached hereto as Exhibit 2 is a true and correct copy of

14 the NOE.

15 9. Petitioners commented on the Ordinance and raised each of the legal deficiencies

16 asserted in this petition. Attached hereto as Exhibit 3 is a true and correct copy of

17 correspondence (without exhibits) filed with the City raising the legal deficiencies of the Project.

18 10. Petitioner performed all conditions precedent to filing this action by complying

19 with the requirements of Public Resources Code §21167.5 in filing notice of this action on May

20 7, 2014. Attached hereto as Exhibit 4 is a true and correct copy of the Notice ofintent to File

21 CEQA Petition mailed to the City Clerk on May 7, 2014.

22 11. Respondent's actions in adopting the Ordinance without conducting the necessary

23 studies under CEQA constitute prejudicial abuse of discretion in that Respondent failed to

24 proceed in the manner required by law and its decision is not supported by substantial evidence

25 as required by Public Resources Code§ 21168.5.

26 12. Whether an activity constitutes a "project" subject to CEQA is a categorical

27 question respecting whether the activity is of a general kind with which CEQA is concerned,

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without regard to whether the activity will actually have environmental impacts." Muzzy Ranch

Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372, 381. The term

"project" as defined in Cal. Pub. Res. Code § 21065 has been broadly interpreted by courts. For

example, in a seminal case decided by the California Supreme Court, the court stated that CEQA

is "to be interpreted in such a manner as to afford the fullest possible protection to the

environment within the reasonable scope of the statutory language." Friends of Mammoth v.

Board of Supervisors (1972) 8 Cal.3d 247, 259. Further, courts have concluded that the term

"project" encompasses regulatory approvals such as general plan amendments, zone changes,

and annexations which may ultimately lead to physical environmental changes. 14 Cal. Code

Regs. § l 5378(a)(l ); Bozung v. Local Agency Formation Commission, (1975) 13 Cal.3d 263, 277

n.16. The City is required under CEQA to undertake a review of an ordinance when it is

apparent that the regulations will "culminate in physical change to the environment." Bozung v .

Local Agency Formation Commission (1975) 13 Cal.3d 263, 281.

13. The fact that the "project" at issue is the adoption of an ordinance as opposed to a

development project proposed by an applicant does not relieve the City of the obligation to

undertake a review of the project under CEQA. Rosenthal v. Board of Supervisors (1975) 14

Cal.App.3d 815, 823 (stating that "adopting an ordinance [is] a project"); No Oil, Inc. v. City of

Los Angeles (1974) 13 Cal.3d 68 (impliedly holding that adoption of ordinance is a project

within the meaning ofCEQA); 60 Ops.Cal.Atty.Gen. 335 (1977) ("ordinances and resolutions

adopted by a local agency are 'projects' within the meaning ofCEQA"). The Attorney General

Opinion issued in 1977 concluded that the following ordinances were all subject to CEQA: (1)

an open-range ordinance requiring private land owners to fence out cattle; (2) an ordinance

allowing construction of single family dwellings in rural areas without electricity, running water,

or flush toilets; and (3) an ordinance modifying road improvement standards for new

subdivisions. A project need not directly effect a physical change in the environment:

reasonably foreseeable indirect or secondary effects must also be analyzed. The inquiry is

whether or not the Project will ultimately culminate in physical changes to the environment. Id.

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PETITION FOR WRIT OF MANDA TE

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14. CEQA Guidelines Section 15061, Subdivision(b)(3) describes the so-called

"common sense exemption," where "(t]he activity is covered by the general rule that CEQA

applies only to projects which have the potential for causing a significant effect on the

environment. Where it can be seen with certainty that there is no possibility that the activity in

question may have a significant effect on the environment, the activity is not subject to CEQA."

As a result, the burden of proof rests with the City to demonstrate that the commonsense

exemption applies. Davidon Homes v. City of San Jose (1997) 54 Cal. App.4th 106, 116 ("[T)he

agency must itself provide the support for its decision before the burden shifts to the challenger.

Imposing the burden on the members of the public in the first instance to prove a possibility or

substantial adverse environmental impact would frustrate CEQA's fundamental purpose of

ensuring that governmental officials 'make decisions with environmental consequences in

mind.") Even if an agency has provided support for its decision to exempt a project under the

"common sense exemption," the "showing required of a party challenging an exemption under

[the commonsense exemption) is slight, since that exemption requires the agency to be certain

that there is no possibility the project may cause significant environmental impacts. Iflegitimate

questions can be raised about whether the project might have a significant impact and there is

17 any dispute about the possibility of such an impact, the agency cannot find with certainty that a

18 project is exempt." Id

19 15. Respondent failed to proceed in the manner required by law when it

20 concluded that the Project was exempt pursuant to 15061(b )(3) of the CEQA Guidelines.

21 Respondent wrongly concluded that the Ordinance was exempt under the so-called "common

22 sense exemption."

23 16. Among other things, the Ordinance will require patients to drive outside the City

24 to visit a medical marijuana dispensary to obtain their medicine, which will create traffic and air

25 pollution. It may be fairly assumed that each of the City's estimated I 0,117 patients will need to

26 go to a medical marijuana dispensary approximately once a week to get their medicine.

27 However, the nearest storefront medical marijuana dispensary from Fresno is I 09 miles away in

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Bakersfield. Therefore, the City's ban of all cultivation will result in a weekly increase of

2,205,506, or an annual increase of l 15,001,384 in miles traveled. Based upon Federal

Statistics, this would result in approximately 48,869 metric tons per year in C02 emissions

alone. It would also be expected to generate 49,145 pounds of Reactive Organic Gasses, 36.86

tons of Nitrous Oxide and 82.93 tons of PM! 0 per year. The Ordinance will result in increased

travel and air pollution, which nevertheless could create environmental impacts, such as traffic

and air pollution, within the City. This additional travel not only may, but will, result in a direct

change in the physical environment. No further evidence is required to establish that the City is

not exempt from CEQA pursuant to§ 1506l(b)(3) of the CEQA Guidelines.

17. Further, the Ordinance's ban on cultivation shifts the development impacts

associated with cultivation to other jurisdictions, which the City has failed to analyze. It is

reasonably foreseeable that cultivation of medical marijuana in other cities and counties will

increase due to the ban. Cultivation of medical marijuana, an inherently agricultural activity,

especially in a residential setting, in and of itself contemplates environmental impacts, which the

City has failed to analyze. Petitioner UMMP alerted the City to the fact that an estimated 7,587

pounds of cannabis per year would need to be cultivated to meet patient needs in the City. Much

of the displaced cultivation created by the ban may occur indoors and there are environmental

impacts associated with indoor cultivation that may be significant. This creates environmental

19 consequences, which the City failed to analyze.

20 18. Petitioner UMMP provided Respondent with a copy of a recent study entitled The

21 Carbon Footprint of Indoor Cannabis Production, published in The International Journal of the

22 Political, Economic, Planning, Environmental and Social Aspects Energy, detailing the

23 environmental impacts of indoor cannabis cultivation. See Exhibit 5. The following are

24 highlights from the study:

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• On average, approximately one third of cannabis production takes place under indoor conditions. Approximately two-thirds of all cannabis is produced outdoors.

• In California, 400,000 individuals are authorized to cultivate cannabis for personal medical use, or sale for the same purpose to 2100 dispensaries.

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• One average kilogram of cannabis is associated with 4600 kg of carbon dioxide emissions (greenhouse-gas pollution) to the atmosphere, a very significant carbon footprint, or that of3 million average U.S. cars when aggregated across all national production.

• Indoor cannabis production utilizes highly energy intensive processes to control environmental conditions during cultivation.

• Indoor cultivation also results in elevated moisture levels that can cause extensive damage to buildings as well as electrical fires caused by wiring out of compliance with safety codes.

• Indoor carbon dioxide levels are often raised to 4-times natural levels to boost plant growth when cannabis is cultivated indoors.

• Indoor cannabis production results in electricity use equivalent to that of 2 million average U.S. homes. This corresponds to 1% of national electricity consumption.

• In California, the top-producing state, indoor cultivation is responsible for about 3% of all electricity use or 9% of household use. This corresponds to greenhouse-gas emissions equal to those from 1 million cars.

• Accelerated electricity demand growth has been observed in areas reputed to have extensive indoor Cannabis cultivation. For example, after the legalization of medical marijuana in 1996, Humboldt County experienced a 50% rise in per-capita residential electricity use compared to other parts of the state .

• Shifting cultivation outdoors can nearly eliminate energy use for the cultivation process. However, outdoor cultivation creates its own environmental impacts. These include deforestation; destruction of wetlands, runoff of soil, pesticides, insecticides, rodenticides and human waste; abandoned solid waste; and unpermitted impounding and withdrawals of surface water. These practices can compromise water quality, fisheries and other ecosystem services. However, outdoor cultivation can compromise security.

19. It is reasonably foreseeable that the City's ban of cultivation of medical marijuana

within the City will result in an increase in cultivation outside the City. Cultivation of medical

marijuana indoors, including in single-family residential zones, implicate significant

environmental concerns and require meaningful review under CEQA. Obviously, cultivation of

medical marijuana to meet existing patients demand will need to take place outside City limits as

a result of the Ordinance (in fact, outside of the County due to the ban on cultivation by the

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County of Fresno) and additional waste water will be created as a result of these cultivation

activities. Moreover, additional waste plant material (a.k.a bio-waste) will be created that must

be disposed of properly. However, because these activities may take place indoors, the proper

means of disposal is unclear and the City has failed to mitigate the foreseeable environmental

impacts. The City failed to analyze any of the reasonably foreseeable impacts of the increased

indoor cultivation of medical marijuana. The facts presented by Petitioners demonstrate potential

significant environmental effects in terms of (1) Greenhouse Gas Emissions, (2) Hazards &

Hazardous Materials, (3) Hydrology I Water Quality, and (4) Utilities I Service Systems.

20. Finally, the City wrongly concluded that the Ordinance was exempt pursuant to

Section 15061(b)(3) of the CEQA Guidelines on the basis that it would have "positive effects on

the environment, including helping to reduce water consumption and to eliminate offensive

odors." Activities intended to protect or preserve the environment are not automatically immune

from environmental review. The Guidelines provide that categorical exemptions may not be used

where there is a reasonable possibility that the activity will have a significant effect on the

environment (1) when "the cumulative impact of successive projects of the same type in the

same place, over time is significant" (Guidelines, § 15300.2(b)), or (2) due to "unusual

circumstances." (Guidelines,§ 15300.2(c).) See Dunn-Edwards Corp. Bay Area Air Quality

Management Dist. (1992) 9 Cal.App.4th 644 (overturning amendments to air district regulations

designed to reduce the amount of volatile organic carbons in paint for failure to comply with

CEQA); Building Code Action v. Energy Resources Conservation & Dev. Com. (1980) 102

Cal.App.3d 577 (adoption of emergency conservation regulations establishing double-glazing

standards for new residential construction could have significant impact on air quality as result of

increased glass production). As outlined above, the Ordinance will not eliminate the demand for

medical marijuana in the City and will require patients to drove outside the City to obtain their

medicine, which create both traffic and air pollution. Moreover, the Ordinance simply displaces

26 the impacts of cultivation to other jurisdictions.

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21. Based on the information submitted by Petitioners, Respondent could not have

found with certainty that there is no possibility that the Ordinance may have a significant effect

on the environment rendering the project exempt pursuant to 15061 (b )(3) of the CEQA

Guidelines. Respondent thereby violated its duties to conduct an Initial Study conforming to the

requirements ofCEQA. Accordingly, the City's adoption of the Project must be set aside.

WHEREFORE, petitioner demands entry of judgment as follows:

I. For a peremptory writ of mandate directing:

a. Respondent to vacate and set aside its adoption of the Project.

b. Respondent to suspend all activity under the Project that could result in

any change or alteration in the physical environment and refrain from

taking any physical, administrative and/or legal actions toward

enforcement of the Project until Respondent has taken such actions that

may be necessary to bring the Project into compliance with CEQA.

c. Respondent to prepare, circulate, and consider a legally adequate Initial

Study, and if applicable, an Environmental Impact Report, and otherwise

to comply with CEQA in any subsequent action taken to approve the

Project.

2. For its costs of suit.

3. For an award of attorneys fees.

4. For other equitable or legal relief that the Court considers just and proper.

22 Dated: May 7, 2014

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Jamie T. Hall CHANNEL LAW GROUP, LLP Attorney for Petitioners

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2 VERIFICATION

3 I am an officer of petitioner, Union of Medical Marijuana Patients, Inc., and I am

4 authorized to execute this verification on behalf of petitioner. I have read the foregoing petition

5 and am familiar with its contents. The facts recited in the petition are true and of my personal

6 lmowledge.

7 I declare under penalty of perjury under the laws of the State of California that the

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foregoing is true and correct.

Dated: May 7, 2014

By: ~-'- c ;0( ":h ,

~mesC.Shaw Union of Medical Marijuana Patients, Inc .

PETITION FOR WR1T OF MANDATE

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1 VERIFICATION 2

3 I am a member of Fresno Ca:nnabis Association and lam authorized to execute this

4 verification on behalf of petitioner. I have read the foregoing petition and am familiar with its

s contents. The facts recited in the petition are ti:ue and of my personal knowledge.

6 1 declare under peoalty of perjury under the laws of the State of California that the

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foregoing is true and correct.

Dated: May 7, 2014

By:·~fra·Michael S. Green Fresria Cannab~Y Association

l'ETITION FOR WRIT OF MANDA TE

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No.

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EXHIBIT LIST

Exhibits

Ordinance Bill No. 2014-20.

Notice of Exemption

Correspondence filed with the City

Notice oflntent to File CEQA Petition

Copy of Study Entitled The Carbon Footprint of Indoor Cannabis Production

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BILL NO. 8-17

ORDINANCE NO. 2014-20

AN ORDINANCE OF THE COUNCIL OF THE CITY OF FRESNO, CALIFORNIA, REPEALING ARTICLE 21 OF CHAPTER 12 OF, AND ADDING ARTICLE 21 OF CHAPTER 12 TO, THE FRESNO MUNICIPAL CODE RELATING TO MARIJUANA CULTIVATION

WHEREAS, the Council hereby finds that the cultivation of marijuana significantly

impacts, or has the potential to significantly impact, the city's jurisdiction. These

impacts include damage to buildings in which cultivation occurs, including improper and

dangerous electrical alterations and use, inadequate ventilation, increased occurrences

of home-invasion robberies and similar crimes and nuisance impacts to neighboring

properties from the strong and potentially noxious odors from the plants, and increased

crime; and

WHEREAS, according to the Chief of Police, marijuana grows have been

operating in the city for several years with minimal local regulation and have been the

subject of armed robberies with shots fired, incidents with juveniles and young adults,

and arrests for violation of both state and federal laws, including seizure of illegal

firearms. Marijuana grows attract crime and associated violence. They are harmful to

the welfare of the surrounding community and its residents and constitute a public

nuisance; and

WHEREAS, marijuana cultivation in the city poses a threat to the public peace,

health and safety. Many marijuana grows have emerged in the city which are very

visible to the public, and easily accessible to the public, including children and youths.

Date Adopted; 03/27/2014 Date Approved:04/08/2014 Effective Date: 05/09/2014

Page I of8

Ordinance No. 2014-20

here is a threat of violent crime due to the size, location, and monetary value of these

mature marijuana grows; and

WHEREAS, it is acknowledged that the voters of the State of California have

provided a limited criminal defense to the cultivation, possession and use of marijuana

for medical purposes through the adoption of the Compassionate Use Act in 1996

pursuant to Proposition 215 and codified as Health and Safety Code section 11362.5.

The Compassionate Use Act (CUA) does not address the land use or other impacts that

are caused by the cultivation of marijuana; and

WHEREAS, the CUA is limited in scope, in that it only provides a defense from

criminal prosecution for possession and cultivation of marijuana to qualified patients and

their primary caregivers. The scope of the Medical Marijuana Program Act (MMPA)

commencing with Health and Safety Code section 11362.7, is also limited in that it

establishes a statewide identification program and affords qualified patients, persons

with identification cards and their primary caregivers, an affirmative defense to certain

enumerated criminal sanctions that would otherwise apply to transporting, processing,

administering or distributing marijuana; and

WHEREAS, neither the CUA, MMPA, nor the California Constitution create a

right to cultivate medical marijuana; and

WHEREAS, it is critical to note that neither Act abrogates the city's powers to

regulate for public health, safety and welfare. Health and Safety Code 11362.5(b)(2)

provides that the CUA does not supersede any legislation intended to prohibit conduct

that endangers others. In addition, Health and Safety Code 11352.83 authorizes cities

and counties to adopt and enforce rules and regulations consistent with the MMPA; and

Page 2 of8

WHEREAS, the Council finds that neither the CUA nor the MMPA preempts the

city's exercise of its traditional police powers in enacting land use and zoning

regulations, as well as legislation for preservation of public health, safety and welfare,

such as this zoning ordinance prohibiting cultivation of marijuana within the city; and

WHEREAS, marijuana remains an illegal substance under the Federal Controlled

Substances Act, 21 U.S.C. 801, et seq., and is classified as a "Schedule I Drug" which

is defined as a drug or other substance that has a high potential for abuse, that has no

currently accepted medical use in treatment in the United States, and that has not been

accepted as safe for its use under medical supervision. Furthermore, the Federal

Controlled Substances Act makes it unlawful for any person to cultivate, manufacture,

distribute, dispense, or possess with intent to manufacture, distribute or dispense

marijuana. The Controlled Substances Act contains no statutory exemption for the

possession of marijuana for medical purposes. The city does not wish to be in violation

of federal law; and

WHEREAS, the city has a compelling interest in protecting the public health,

safety and welfare of its residents and businesses, and in preserving the peace and

quiet of the neighborhoods in which marijuana is currently grown; and

WHEREAS, staff has performed a preliminary environmental assessment of this

project and, pursuant to CEQA Guidelines, Section 15061(b)(3), has determined that

there is no possibility that this project may have a significant effect on the environment

because the outdoor cultivation of marijuana is currently a prohibited use, and this

ordinance merely prohibits additional future cultivation of marijuana indoors after the

current crop year. This will not result in a substantial, or potentially substantial, adverse

Page3 of8

change in any of the physical conditions affected by this prohibition, including land, air,

water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic

significance. Instead, the prohibition is anticipated to have positive effects on the

environment, including helping to reduce water consumption and to eliminate offensive

odors. Therefore, this project is not subject to CEQA.

THE COUNCIL OF THE CITY OF FRESNO DOES ORDAIN AS FOLLOWS:

SECTION 1. Article 21 of Chapter 12 of the Fresno Municipal Code is repealed.

SECTION 2. Article 21 is added to Chapter 12 of the Fresno Municipal Code to read:

ARTICLE21

CULTIVATION OF MARIJUANA

Section 12-2101. Purpose and Intent. 12-2102. Relationship to Other Laws. 12-2103. Definitions. 12-2104. Prohibition of Marijuana Cultivation. 12-2105. Violation and Penalty. 12-2106. Severability. 12-2107. Applicability.

SECTION 12-2101. PURPOSE AND INTENT. The purpose of this article

is to prohibit the cultivation of marijuana in order to protect the public peace,

health, safety and general welfare of the citizens of the city.

SECTION 12-2102. RELATIONSHIP TO OTHER LAWS. This article is

not intended to, nor shall it be construed or given effect in a manner that causes

it to apply to, any activity that is regulated by federal or state law to the extent

that application of this article would conflict with such law or would unduly

interfere with the achievement of federal or state regulatory purposes. This

article shall be interpreted to be compatible and consistent with federal, county,

Page 4 of 8

and state enactments and in furtherance of the public purposes which those

enactments express. It is the intention that the provisions of this article will

supersede any other provisions of this code found to be in conflict.

SECTION 12-2103. DEFINITIONS. For purposes of this article, unless

the particular provision or the context otherwise clearly requires, the definitions in

this section shall govern the construction, meaning and application of words and

phrases used in this article:

(a) "Cultivation" means the planting, growing, harvesting,

drying, processing, or storage of one or more marijuana plants or any part

thereof in any location.

(b) "Marijuana" means all parts of the plant Cannabis sativa L.,

whether growing or not, and includes medical marijuana.

(c) "Medical marijuana" means marijuana used for medical

purposes in accordance with California Health and Safety Code section

11362.5.

(d) "Collective, cooperative or dispensary" means a collective,

cooperative, dispensary, operator, establishment, provider, association or

similar entity that cultivates, distributes, delivers or processes marijuana

for medical purposes relating to a qualified patient or primary caregiver,

pursuant to the Compassionate Use Act and Medical Marijuana Program

Act.

(e) "Primary caregiver" means a primary caregiver as defined in

Health and Safety Code section 11362.7.

Pages of8

(f) "Qualified patient" means a qualified patient as defined in

Health and Safety Code section 11362.7.

SECTION 12-2104. PROHIBITION OF MARIJUANA CULTIVATION.

Marijuana cultivation by any person, including primary caregivers and qualified

patients, collectives, cooperatives or dispensaries, is prohibited in all zone

districts within the city.

SECTION 12-2105. VIOLATION AND PENALTY.

(a) A violation of this article shall be prosecuted by the City

Attorney through the civil enforcement process, including injunctive relief,

as set forth in Section 1-308 of this code. Each day a person is in

violation of this article shall be considered a separate violation.

(b) The administrative citation penalty for each and every

marijuana plant cultivated in violation of this article shall be One Thousand

Dollars ($1,000) per plant, plus One Hundred Dollars ($100) per plant per

day the plant remains unabated past the abatement deadline set forth in

the administrative citation.

(c) Any property upon which a violation of this article is found

shall be subject to immediate abatement by the city.

(d) In addition to any administrative penalty assessed for

violation of this article, any person found in violation of this article will be

charged abatement, actual, administrative and enforcement costs as

defined in Section 1-503, calculated to recover the total costs incurred by

the city in enforcing this article.

Page6 of 8

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SECTION 12-2106. SEVERABILITY. If any section, sentence, clause or

phrase of this article is for any reason held to be invalid or unconstitutional by a

decision of any court of competent jurisdiction, such decision shall not affect the

validity of the remaining portion of this article. The Council hereby declares that

it would have passed this ordinance and adopted this article and each section,

sentence, clause or phrase thereof, irrespective of the fact that any one or more

sections, subsections, sentences, clauses or phrases be declared invalid or

unconstitutional.

SECTION 12-2107. APPLICABILITY. All of the provisions of this article

shall be immediately enforceable as to the outdoor cultivation of marijuana. Any

person legally cultivating marijuana indoors prior to the effective date of this

article shall have one hundred twenty (120) days from the effective date of this

article to harvest their crop of marijuana. After the one hundred twenty day (120)

grace period, all the provisions of this article shall be immediately enforceable.

Page 7 of 8

SECTION 3. This Ordinance shall become effective and in full force and effect at 12:01 a.m. on the thirty-first day after its final passage.

* * * * * * * * * * * * * *

STATE OF CALIFORNIA ) COUNTY OF FRESNO ) ss. CITY OF FRESNO )

I, YVONNE SPENCE, City Clerk of the City of Fresno, certify that the foregoing Ordinance was adopted by the Council of the City of Fresno, at a regular meeting held on the 27th day of March, 2014.

AYES NOES ABSENT ABSTAIN

: Baines, Brand, Caprioglio, Quintero, Xiong, Brandau : Olivier : None : None

Mayor Approval: Mayor Approval/No Return: Mayor Veto: Council Override Vote:

APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE

KBD:elb [63853elb/kbd] Ord. 1/30114

NIA , 2014 April 8 , 2014 NIA , 2014 NIA , 2014

YVONNE SPENCE, CMC City Clerk

BY~ DePUtY

Page8 of8

March 27, 2014 Council Adoption: 3/27/2014 Mayor Approval:

TO:

FROM:

SUBJECT:

MAYOR ASHLEY SWEARENGIN

YVONNE SPENCE, CMC~ City Clerk ~ ·

Mayor Veto: override Request:

TRANSMITTAL OF COUNCIL ACTION FOR APPROVAL OR VETO

At the Council meeting of 3/27/14, Council adopted the attached Ordinance No. 2014-20 entitled Repealing Article 21 of Chapter 12 prohibiting cultivation of marijuana in all zone districts within the City, Item No. 1 E2, by the following vote:

Ayes Noes Absent Abstain

Baines, Brand, Brandau, Capriogfio, Quintero, Xiong Olivier None None

Please indicate either your formal approval or veto by completing the following sections and executing and dating your action. Please file the completed memo with the Clerk's office on or before April 7, 2014. In computing the ten day period required by Charter, the first day has been excluded and the tenth day has been included unless the 1orn day is a Saturday, Sunday, or holiday, in which case it has also been excluded. Failure to file this memo with the Clerk's office within the required time limit shall constitute approval of the ordinance, resolution or action, and it shall take effect without the Mayor's signed approval.

Thank you. ************************************************************

APPROVE~ ¥/5'(/t.1

VETOED for the following reasons: (Written objections are required by Charter; attach additional sheets if necessary.)

Ashley Swearengin, Mayor

COUNCIL OVERRIDE ACTION: Ayes Noes Absent Abstain

Date:--------

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PETITION FOR WRIT OF MANDA TE

E201410000084 NOTICE OF EXEMPTION PLEASE POST FOR A FULL 36 DAYS (UNTIL 5 P.M. 511212014)

FROM: City of Fresno Development and Resource Management Department 2600 Fresno Street Room 3076 Fresno, California 93721-3604

TO:_JL_ Fresno County Clerk 2221 Kern Street Fresno, California 93721

Office of Planning & Research 1400 Tenth Street, Room 121 Sacramento, California 95814

Project Title: Environmental Assessment (EA) No. 14-012 for City of Fresno Ordinance Bill No. 201'f:-20 Prohibiting Marijuana Cultivation

Project Location: Within the corporate limits of the City of Fresno 36° 47' 10" N Latitude, 119° 47' 20" W Longitude (centroid)

Project Location - city: City of Fresno Project Location- county: County of Fresno

Description of Nature, Purpose and Beneficiaries of Project:

City of Fresno Ordinance No. 2014-20, amending the Fresno Municipal Code to Repeal Article 21 of Chapter 12, and to add Article 21 of Chapter 12 to prohibit the cultivation of marijuana in all zone districts within the city of Fresno.

On June 28, 2012, Fresno City Council adopted Bill Number B-12, Ordinance Number 2012-13, to add Article 21 to Chapter 12 to the Fresno Municipal Code. Ordinance No. ~Ol'l-19 prohibited the outdoor cultivation of marijuana and did not prohibit on the indoor cultivation andlor within an outdoor fully-enclosed and secured structure approved by special permit. However, in the past year, 317 marijuana growing complaints (some indoor operations) were investigated by the Fresno Police Department's Narcotics Section, and documented conditions associated with marijuana cultivation in Fresno have included high levels of heat within structures used for growing marijuana; impaired indoor air quality and noxious odors; dangerous electrical system alterations, and excessive demand on electrical and water utilities; illegal firearms on the premises; armed robberies of properties where marijuana was being grown and also properties where it was mistakenly thought to be grown.

Since the outdoor cultivation of marijuana is currently prohibited, on March 27, 2014 the Fresno City Council adopted Bill No. B-17, Ordinance No. 2014-20, to prohibit all cultivation of marijuana, continuing the existing enforceability of the prohibition of outdoor cultivation, and instituting enforcement action against indoor marijuana cultivation beginning 120 days from the effective date of the Ordinance. This Ordinance has been adopted in order to protect the public health, safety, and general welfare of persons who would otherwise be exposed to an elevated risk of harm due to residing and doing business near marijuana cultivation, and in order to ensure compliance with Federal law.

Name of Public Agency Approving Project: City of Fresno (continued on next page)

Notice of Exemption Fresno City Ordinance No. 2014-20 prohibiting. all cultivation of marijuana Page2 E201410000084

Name of Person or Agency Carrying Out Project: City of Fresno Police Department (contact person: Lieutenant Michael Brogdon, telephone no. 559-621-5901)

Exempt Status: (check one) D Ministerial - PRC§ 21080(b)(1); CEQA Guidelines §15268 D Declared Emergency- PRC§ 21080(b)(3); CEQA Guidelines §15269(a) D Emergency Project- PRC§ 21080(b)(4); CEQA Guidelines §15269(b) and (c) 1ZJ Categorical Exemption - CEQA Section 15061 (b)(3) D Statutory Exemption - PRC § _____ _

Reasons why project is exempt:

Under CEQA Guidelines Section 15061(b)(3), the City of Fresno (Lead Agency) has determined that there is no possibility that this project may have a significant effect upon the environment because the outdoor cultivation of marijuana is currently a prohibited use, and this ordinance merely prohibits additional future cultivation of marijuana indoors after the current crop year. This will not result In substantial or potentially substantial adverse change in any of the physical conditions effected by this prohibition, induding land, air, water, minerals, flora, fauna, ambient noise, and objects of historic pr aesthetic significance. Instead, the prohibition is anticipated to have positive effects on the environment, including helping to reduce water consumption, prevent fire hazards, and eliminate offensive odors. Regardless of ability to cultivate, state law provides an alternative for collectives and caregiver to locally provide medical marijuana. Even assuming this might have some effect on cost, economic change is not considered a significant effect on the environment. Therefore, this project is not subject to CEQA

Lead Agency Contact Person: Mike Sanchez Full telephone# 559- 621-8040 Planning Manager Email: [email protected] City of Fresno Development & Resource Management Oep't.

Signature: Date: April 3, 2014 Printed Name & Tit/ : Sophia Pagoula os, ervising Planner, for

Mike Sanchez, Planning Manager City of Fresno Development & Resource Management Department

IZl Signed by Lead Agency D Signed by applicant

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Received Less Than 24 Hours Before Meeting

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City Council City of Resno clo Yvonne Spence, City Clerk 2600 Fresno Street Room 2133 Fresno, CA 93721

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Re: Amend the Fresno City Municipal Code to Repeal Article 21 of Chapter 12, and add Article 21 of Chapter 12, prohibiting the cultivation of Marijuana in All Zone Districts within the city of Fresno

Dear Mayor Swearengin and Councilmembers:

The Union of Medical Marijuana Patients ("UMMP") is pleased to comment on the City of Fresno's {"City'') proposed Ordinance regarding the cultivation of medical marijuana ("Ordinance" or "Project"). UMMP is in receipt of the materials published on the City's website regarding the Ordinance. In the Staff Report issued for the Project, the City states that "[s]taff has performed a preliminary environmental assessment of this project and, pursuant to CEQA Guidelines, Section 15061(b)(3), has determined that there is no possibility that this project may have a significant effect upon the environment .... " Staff Report at p.3. This letter notifies the City that the Ordinance is not exempt from CEQA and outlines the foreseeable environmental effects associated with the Ordinance requiring review and mitigation. Because the Ordinance is not exempt from CEQA pursuant to the common-sense exemption, the City must conduct an Initial Study

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pursuant to § 15063 of the California Public Resources Code before adopting the Ordinance.

AboutUMMP

I would first like to introduce my organization. UMMP is a not-for-profit civil rights organization that is devoted to defending and asserting the rights of medical cannabis patients. UMMP promotes a model of legally compliant medical cannabis patient associations and has developed a self-regulatory product, AGSite Secure, to ensure all Californians using medical cannabis and forming patient associations have the opportunity to do so with a clear and unambiguous understanding of the law. UMMP is committed to sensible regulations for patient associations and their dispensaries, responsible actions of patients and cooperation with law enforcement.

The Proposed Ordinance:

According to the Staff Report dated March 20, 2014, "adopting th[e] ordinance would prohibit all indoor and outdoor cultivation of marijuana in the City. Staff Report at p. 1.

With regard to CEQA, the Ordinance states the following:

"Staff has petformed a preliminary environmental assessment of this project and, pursuant to CEQA Guidelines, Section 15061(b)(3), has determined that there is no possibility that this project may have a significant effect upon the environment because the outdoor cultivation of marijuana is currently a prohibited use, and this ordinance merely prohibits additional future cultivation of marijuana indoors after the current crop year. This will not result in a substantial or potentially substantial adverse change in any of the physical conditions effected by this prohibition, including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. Instead, the prohibition is anticipated to have positive effects on the environment, including helping to reduce water consumption and eliminate offensive odors. Therefore, this project is not subject to CEQA."

Staff Report at p. 3.

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The Ordinance is Not Exempt from CEQA Under the Common-Sense Exemption

The Ordinance is not exempt from CEQA under the so-called "common sense" exemption. CEQA Guidelines Section 15061, Subdivision(b)(3) describes the so-called "common sense exemption," where "[tjhe activity is covered by the general rule that CEQA applies only to projects which have the potential tor causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA" (emphasis added). As a result, the burden of proof rests with the City to demonstrate that the commonsense exemption applies. Davidson Homes v. City of San Jose (1997) 54 Cal. App.4th 106, 116 ("[Tjhe agency must itself provide the support for its decision before the burden shifts to the challenger. Imposing the burden on the members of the public in the first instance to prove a possibility or substantial adverse environmental impact would frustrate CEQA's fundamental purpose of ensuring that governmental officials 'make decisions with environmental consequences in mind."') Even if an agency has provided support for its decision to exempt a project under the "common sense exemption," the "showing required of a party challenging an exemption under [the commonsense exemption] is slight, since that exemption requires the agency to be certain that there is no possibility the project may cause significant environmental impacts. If legitimate questions can be raised about whether the project might have a significant impact and there is any dispute about the possibility of such an impact, the agency cannot find with certainty that a project is exempt." Id.

The Environmental Baseline

Under CEQA, the environmental baseline includes existing patients that cultivate medical marijuana (either indoors of outdoors) for their own personal use in compliance with state law. In June of 2012 the City adopted Ordinance Number 2012-13, which prohibited the outdoor cultivation of marijuana, but did not place a prohibition on the indoor cultivation and/or within an outdoor fully-enclosed and secured structure, approved by special permit Staff Report at p. 1. As a result, patients were required to either cultivate medical marijuana in their own home or travel outside the City to obtain medical marijuana.

The environmental baseline also includes an estimated patient population of 10, 117 persons in the City. This is based on an analysis conducted by Cal. NORML, another medical marijuana advocacy organization, concluding that that the patient base in California is 2-3% of the overall population. (See Exhibit 1). The legality of cultivation in

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the City does not relieve the City with the obligation to such operations in the environmental baseline. In Riverwatch v. County of San Diego {1999) 76 Cal. App.4th 1428, 1451, the court held that the proper baseline is the existing condition of the site, even if that condition may be the result of prior illegal activity. The court explained in Riverwatch that CEQA is not "the appropriate forum for determining the nature and consequence of a prior conduct of a project applicant." 76 Cal. App.4th at 1452. The decision in Riverwatch has been followed by other courts. See Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal. App. 4th 357, 370 (citing Riverwatch and stating that the "environmental impacts should be examined in light of the environment as it exists when a project is approved").

Moreover, it is a fundamentally accepted principle that environmental impacts should be examined in light of the environment as it exists when a project is approved. (Guidelines,§ 15125, subd. (a); Bloom v. McGurk(1994) 26 Cal. App. 4th 1307, 1315, fn. 2; City of Carmel-by-the-Sea v. Board of Supervisors (1986) 183 Cal. App. 3d 229, 246; Christward Ministry v. Superior Courl (1986) 184 Cal. App. 3d 180, 190; Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal. App. 3d 350, 358; Remy et al., Guide to the Cal. Environmental Quality Act (10th ed. 1999) p. 165.) In this case, there are an approximate 1, 184 medical marijuana patients in the City, many of whom cultivate their own medical marijuana due to the ban of "medical marijuana dispensaries" in the City.

The Ordinance is a "Project"

As an initial matter, it should be noted that the Ordinance is a "project" under CEQA. The fact that the "project" at issue is the adoption of an ordinance as opposed to a development project proposed by an applicant does not relieve the City of the obligation to undertake a review of the project under CEQA. Rosenthal v. Board of Supervisors (1975) 14 Cal.App.3d 815, 823 (stating that "adopting an ordinance [is] a project"); No Oil, Inc. v. City of Los Angeles (1974) 13 CaL3d 68, 118 Cal.Rptr. 34 (impliedly holding that adoption of ordinance is a project within the meaning of CEQA); 60 Ops.Cal.Atty.Gen. 335 (1977) ("ordinances and resolutions adopted by a local agency are 'projects' within the meaning of CEQA"). The Attorney General Opinion issued in 1977 concluded that the following ordinances were arr subject to C EQA: ( 1) an openrange ordinance requiring private landowners to fence out cattle; (2) an ordinance allowing construction of single family dwellings in rural areas without electricity, running water, or flush toilets; and (3) an ordinance modifying road improvement standards for new subdivisions. The bottom line is that a project need not directly affect a physical

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change in the environment; reasonably foreseeable indirect or secondary effects must also be analyzed. The relative inquiry is whether or not the project. or in this case, the Ordinance, will ultimately culminate in physical changes to the environment. Id.

Additionally, it should be emphasized that "[w]hether an activity constitutes a project subject to CEQA is a categorical question respecting whether the activity is of a general kind with which CEQA is concerned, without regard to whether the activity will actually have environmental impacts." Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372, 381. It is well established that the enactment of a zoning ordinance such as the Ordinance proposed by the City is subject to environmental review under CEQA. See, e.g., Concerned Citizens of Palm Deserl v. Board of Supervisors (1974) 38 Cal.App.3d 272, 283 (the "enactment and amendment of zoning ordinances" are subject to CEQA).

Here, the City is committing itself to a particular approach to regulating medical marijuana - an extremely restrictive approach that, among other things, requires of patients to drive to other cities to obtain their medicine because both medical marijuana dispensaries and cultivation are banned in the City.

As previously noted, there are an estimated 10, 117 patients in Fresno. Further, it may be fairly assumed that each of them will need to go to a dispensary approximately once a week to get their medicine. However, the nearest storefront medical marijuana dispensary from Fresno is 109 miles away in Bakersfield. Therefore, the City's ban of all cultivation would result in weekly increase of 2,205,506, or an annual increase of 115,001,384 in miles traveled. Based upon Federal Statistics, this would result in approximately 48,869 metric tons per year in C02 emissions alone. It would also be expected to generate 49, 145 pounds of Reactive Organic Gasses, 36.86 tons of Nitrous Oxide and 82.93 tons of PM10 per year. (See, e.g., EPA Fact Sheet entitled "Greenhouse Gas Emissions from a Typical Passenger Vehicle" attached as Exhibit 2.) Clearly, the Ordinance will result in increased travel and air pollution, which nevertheless could create environmental impacts, such as traffic and air pollution, within the City. The City has failed to conduct an analysis of the environmental consequences of the draconian approach of the Ordinance to regulating medical marijuana.

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The City Has Failed to Consider the Significant Environmental Impacts of the Ordinance

Moreover, the Ordinance's ban on cultivation shifts the development impacts associated with cultivation to other jurisdictions, which the City has failed to analyze. It is reasonably foreseeable that cultivation of medical marijuana in other cities and counties will increase due to the ban. Cultivation of medical marijuana, an inherently agricultural activity, especially in a residential setting, in and of itself contemplates environmental impacts, which the City has failed to analyze. Consider the following: Assuming patients use 1 ounce of marijuana per month, then 7,587 pounds of cannabis per year would need to be cultivated to meet patient needs in the City.

Much of the displaced cultivation created by the ban may occur indoors and there are environmental impacts associated with indoor cultivation that may be significant. A recent study entitled The Carbon Footprint of Indoor Cannabis Production, published in The International Journal of the Political, Economic, Planning, Environmental and Social Aspects Energy, detailed the environmental impacts of indoor cannabis cultivation. (See Exhibit 3). The following are highlights from the study:

• On average, approximately one third of cannabis production takes place under indoor conditions. Approximately two-thirds of all cannabis is produced outdoors.

• In California, 400,000 individuals are authorized to cultivate cannabis for personal medical use, or sale for the same purpose to 2100 dispensaries.

• One average kilogram of cannabis is associated with 4600 kg of carbon dioxide emissions (greenhouse-gas pollution) to the atmosphere, a very significant carbon footprint, or that of 3 million average U.S. cars when aggregated across all national production.

• Indoor cannabis production utilizes highly energy intensive processes to control environmental conditions during cultivation.

• Indoor cultivation also results in elevated moisture levels that can cause extensive damage to buildings as well as electrical fires caused by wiring out of compliance with safety codes.

• Indoor carbon dioxide levels are often raised to 4-times natural levels to boost plant growth when cannabis is cultivated indoors.

• Indoor cannabis production results in electricity use equivalent to that of 2 million average U.S. homes. This corresponds to 1% of naflonal electricity consumption.

• In California, the top-producing state, indoor cultivation is responsible for about 3% of all electricity use or 9% of household use. This corresponds to greenhouse-gas emissions equal to those from 1 million cars.

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• Accelerated electricity demand growth has been observed in areas reputed to have extensive indoor Cannabis cultivation. For example, after the legalization of medical marijuana in 1996, Humboldt County experienced a 50% rise in percapita residential electricity use compared to other parts of the state.

• Shifting cultivation outdoors can nearly eliminate energy use for the cultivation process. However, outdoor cultivation creates its own environmental impacts. These include deforestation; destruction of wetlands, runoff of soil, pesticides, insecticides, rodenticides and human waste; abandoned solid waste; and unpermitted impounding and withdrawals of surface water. These practices can compromise water quality, fisheries and other ecosystem services. However, outdoor cultivation can compromise security.

This study was the product of previous research conducted by the same author. (See Exhibit 4). Additional research has confirmed these impacts. (See Exhibit 5). The City has completely failed to analyze the Ordinance's reasonably foreseeable environmental impacts, specifically the impacts of indoor cultivation in other jurisdictions. The Ordinance is not exempt from CEQA and there are significant environmental impacts, as outlined in the aforementioned studies, that the City has failed to mitigate that implicate agriculture, air quality, water quality, traffic, land use planning, etc.

Cultivation of medical marijuana indoors, including in single-family residential zones, implicate significant environmental concerns and require meaningful review under CEQA. Obviously, cultivation of medical marijuana to meet existing patients demand will need to take place outside City limits as a result of the Ordinance (in fact, outside of the County due to the ban on cultivation by the County of Fresno) and additional waste water will be created as a result of these cultivation activities. Moreover, additional waste plant material (a.k.a bio-waste) will be created that must be disposed of properly. However, because these activities may take place indoors, the proper means of disposal is unclear and the City has failed to mitigate the foreseeable environmental impacts. Indeed, state regulatory agencies, including, for example, the Central Valley Regional Water Quality Control Board (CVRWQCB), have recognized the environmental consequences of cultivation and recently issued a notice and fact sheet to cultivators in an effort to prevent environmental damage. (See Exhibit 6).

Further, and as noted above, there will also be an increase in the electrical consumption that will be required. These facts are compelling and demonstrate potential significant environmental effects in terms of (1) Greenhouse Gas Emissions, (2) Hazards & Hazardous Materials, (3) Hydrology/Water Quality, and (4) Utilities/Service Systems.

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The Ordinance Creates New Environmental Harms and Therefore Is Not Exempt from CEQA as an Activity Designed to Protect the Environment Pursuant to CEQA Guidelines Section 15308

Further, the City cannot argue that the Ordinance is exempt from CEQA as an activity "designed to project the environment." It should be emphasized that activities intended to protect or preserve the environment are not automatically immune from environmental review. The Guidelines provide that categorical exemptions may not be used where there is a reasonable possibility that the activity will have a significant effect on the environment (1) when "the cumulative impact of successive projects of the same type in the same place, over time is significant" (Guidelines, § 15300.2{b)), or (2) due to "unusual circumstances." {Guidelines,§ 15300.2(c).) See Dunn-Edwards Corp. Bay Area Air Quality Management Dist. {1992) 9 Cal.App.4th 644 (overturning amendments to air district regulations designed to reduce the amount of volatile organic carbons in paint for failure to comply with CEQA); Building Code Action v. Energy Resources Conservation & Dev. Com. (1980) 102 Cal.App.3d 577 (adoption of emergency conservation regulations establishing double-glazing standards for new residential construction could have significant impact on air quality as result of increased glass production).

Rulemaking proceedings cannot be found exempt, however, when the rule has the effect of weakening environmental standards. [Even a] new regulation that strengthens some environmental requirements may not be entitled to an exemption if the new requirements could result in other potentially significant effects.

California Unions for Reliable Energy v. Mojave Desert Air Quality Management Dist. (2009) 178 Cal.App.4th 1225, 1240 (quoting 2 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act, supra, § 20.43, p. 981) (internal citations omitted).

Even if a public agency meets its initial burden to show the exemption is supported by substantial evidence, it still has to defend against claims that the exemption is subject to an exception. (Ibid.) Thus, it is simply not the case that a city or county can circumvent CEQA merely by characterizing its ordinances as environmentally friendly and therefore exempt under the Class 7 or 8 categorical exemptions.

Save the Plastic Bag Coalition v. County of Marin {2013) 218 Ca!App.4th 209, 228. As explained below, there is no substantial evidence to support the City's conclusion that

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the Ordinance is exempt from CEQA pursuant to CEQA Guidelines Section 15308.

Conclusion

While the above discussion is not intended to be an exhaustive list of the reasonably foreseeable indirect or secondary effects of the Ordinance, it is illustrative of the types of impacts that the City must analyze. A fair argument has been outlined regarding the significant environmental effects of the Ordinance. As such, the City is compelled to prepare an Initial Study pursuant to §15063 of the California Public Resources Code as there are no applicable exemptions established in Division 13, Articles 18 or 19 of the California Public Resources Code. The Ordinance will have a significant effect on the environment and the City has failed to mitigate these impacts as required under CEQA. As such, the City is required to prepare an Environmental Impact Report. CEQA Guidelines, § 15002, subd. (k}; No Oil, Inc. v. City of Los Angeles (197 4} 13 Cai.3d 68, 74 (If the initial study shows that the project may have a significant effect, the lead agency takes the third step and prepares an Environmental Impact Report.)

Regards,

Isl James Shaw

James Shaw Executive Director

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PETITJON FOR WRIT OF MANDATE

l JAMIE T. HALL (Bar No. 240183) JULIAN K. QUATTLEBAUM (Bar No. 214378)

2 CHANNEL LAW GROUP, LLP 207 E. Broadway, Suite 201

3 Long Beach, CA 90802-8824 Telephone: (310) 982-1760

4 Facsimile: (562) 394-1940 5 [email protected]

[email protected] 6

Attorneys for Petitioners 7 UNION OF MEDICAL MARIJUANA PATIENTS, INC. and

8 FRESNO CANNABIS ASSOCIATION

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SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO

CENTRAL DIVISION - UNLIMITED CIVIL CASE

12 UNION OF MEDICAL MARIJUANA PATIENTS, INC., a California Corporation;

13 FRESNO CANNABIS ASSOCIATION, an

14 unincorporated association

NOTICE OF INTENT TO FILE CEQA PETITION

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16 vs.

Petitioners,

17 CITY OF FRESNO, a municipal corporation

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Respondent.

To Fresno City Clerk:

PLEASE TAKE NOTICE, under Public Resources Code§ 21167.5, that Petitioners,

Union of Medical Marijuana Patients, Inc. and Fresno Cannabis Association, intend to file a

petition under the provision of the California Environmental Quality Act ("CEQA") against

Respondent, City of Fresno, challenging its adoption of Ordinance Bill No. 2014-20 prohibiting

medical marijuana cultivation (the "Project").

The petition will seek the following relief:(!) vacate and set aside its adoption of the

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1 Project, (2) suspend all activity under the Project that could result in any change or alteration in

2 the physical environment until respondent has taken such actions that may be necessary to bring

3 the Project into compliance with CEQA, (3) prepare, circulate, and consider a legally adequate

4 Initial Study, and if applicable, an Environmental Impact Report, and otherwise to comply with

5 CEQA in any subsequent action taken to approve the project, ( 4) costs of suit, (5) award of

6 attorneys fees and ( 6) other equitable or legal relief that the Court considers just and proper.

7

8 Dated: May 7, 2014

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By: ~Jam--:i--r.~.H~al~l"---=-~::lc-~~~~~

CHANNEL LAW GROUP, LLP Attorney for Petitioners

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PROOF OF SERVICE 1

2 STATE OF CALIFORNIA )

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3 COUNTY OF LOS ANGELES

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I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 207 E. Broadway, Suite 201, Long Beach, CA 90802.

On May 7, 2014 I served the foregoing document described as NOTICE OF INTENT TO FILE CEQA PETITION on the interested parties in this action by placing a true copy thereof, enclosed in a sealed envelopes addressed as follows:

Yvonne Spence City Clerk, City of Fresno 2600 Fresno Street Room 2133 Fresno, CA 93721

[X] BY USPS EXPRESS MAIL: I placed true copies of the foregoing document in sealed envelopes addressed as stated on the above/attached service list. I placed such envelope, with postage thereon fully prepaid, for collection and mailing at Long Beach, California. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice the mail would be deposited with the U. S. Postal Service on that same day with postage thereon fully prepaid at Long Beach California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the State of California that the above

is true and correct.

20 Executed on May 7, 2014, in Long Beach, Califo

21

22 Jamie T. Hall

23 Name

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LONG BE!ACH DOWNTOWN. POST OffIC ,1 LONG.'BEACH, CalA j\ornia f ( ' .908029991 ' . . '',0544.850002 ,0091

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Energy Policy l (JIU) llU-Hf

Contents fists available at SciVerse ScienceDirect ENERGY FOi.iCY

Energy Policy

journaJ homepage: www.elsevfer.com/locate/enpol

The carbon footprint of indoor Cannabis production

Evan Mills Energy Associates. Box 1688, Mendocino, CA 95460, Unired States

ARTICLE NFO ABSTRACT

Arricle history: Received 7 Sept("mber 2011 Accepted 10 M<irch 2012

Keywords: F:nergy Eluildlngs Hortkulturr.

The emerge11t industry of indoor Cannabis productjon - legal in some jurisdictions and illicit in others .• utilizes highly energy intensive processes to control envil'Onmental conditions during cultivation. This article estimates the energy consumption for this practk:e jn the UnHed States at 1% of national eJectricity use. or $6 billion each year. One average kilogram of final product is associated with 4600 kg or carbon dioxide emissions to the i!tmosphere, or that of 3 mjllion average U.S. cars when aggregated across all national production. The practice of indoor cultivation is driven by crjmjnali:zation, pursuit of security, pest and dise.cise management, and the desire for greater process control and yields. Energy analysts and policymakers have not previously addressed this use of energy. The unchecked growth of eJectricity demand in this sector confounds ene-rgy forecasts .and obscures savings from energy efficiency programs and policiC's. While criminalization has contributed to the substantial energy Intensity, li;-galiiation would not change the situation materiaUy without ancillary efforts to manage energy use, provide con.sumer information via labeling, and other measures. Were product prices to fall as a result of legaH:zation, indoor production using current practices could rapldly become non~viabJe,

1. Introduction

On occasion, previously unrecognized spheres of energy use come to light. Important historical examples include rhe pervasive a.ir leakage from ductwork in homes, the bourgeoniog energy intensity of computer datacenters, and the eJectrjcity "Jeaking" from billions of small power supplies and other e<iuipment. Intensive periods of investigation, technology R&D, and policy development gradually ensue fn the wake of these discoveries. The emergent industry of indoor Cannabis production appears ro have joined tbis list.'

This article presents a model of the modem-day production process - based on pubJic-domain sources - and provides firstorder natjona1 scoping estimates of the energy use, costs, and greenhouse-gas emissions associated with this activity in the United States. The practice is common in other countries but a global assessment is beyond the scope of this report.

2. Scale of activity

The Jarge-scaJe industrialized and highJy energy-intensive indoor cultivation of Cannabis is a reJativeJy new phenomenon, driven by criminalization, pursult of securjty, pest and disease

E~mail address: [email protected] 1 This article substantively updates: and extends the analysis described in

Mill• (2011).

0301-4215/S-see front matter© 2012 Elsevier J.td, AO rights reserved. hUp:l/dx.doi.Oig/10.l016/j.enpol2012.03.023

e 2012 Elsevier Ltd. All rights reserved.

management, and the desire for greater process control and yields (U.S. Department of justice, 20l 1a; World Drug Report, 2009). The practice occurs across the United States (Hudson, 2003; Gettman, 2006). The 415,000 indoor plants eradicated by authorities in 2009 (and 10.3 million including outdoor plantations) (U.S. Department of justice, 201la. b) presumably represent only a small fraction of total production.

Cannabis cultivation is today legal in 15 states plus the District of Columbia, although it is not federally sanctioned (Peplow, 2005 ). It is estimated that 24.8 million Americans are eligible to receive a doctor's recommendation to purchase or cuJtivate Cannabis under existing state Jaws. and approximately 730,000 currently do so (See Change Strategy, 201 J). In California alone, 400,000 indjviduals are currently authorJzed to rultivate Cannabis for persona) medical use, or sale for the same purpose to 21 DO dispensaries (Harvey, 2009). Approximately 28.S million people in rhe United States are repeat consumers, representing 11 % of the population over the age of 12 (U.S. Office of National Drug Control Policy, 2011 ).

Cultivation is also substantial in Canada. An estimated J 7,500 "grow" operations in British Columbia (typically located in residential buildings) are equivalent to 1% of all dwelling units ProVincewide, with an annual market value of $7 billion (Easton. 2004}

Official estimates of total U.S. Cannabis production varied from 10,000 to 24,000metric ton per year as of 2001, making ft the nation's largest crop by value at that time (Hudson, 2003; Gettman, 2006). A recent study estimated national production at far higher levels (69,000 metric ton)(HIDTA. 2010). Even at the

Please cite this article as: Mills, E .. The carbon footprint of indoor Cannabis production. Energy Policy (2012), http:f/dx.doi.org/ 1 O. lOJ 6/j.enpol.2012.03.023

2 E. Mills/ Fnergy Polir:y I (hll) lff-IU

lower end of this range (chosen as rhe basis of this analysis), the level of activity is formidable and Jncrea.sing with the demand for Cannabis.

No systematic efforts have previously been made to estin1ate the aggregate energy use of these activjties.

3. Methods and wicertainties

This analysis is based on a model of typical Cannabis production, and the associated energy use for cultivation and transportation based on market data and first-principals buildings energy end-use modeling techniques. Data sources include equipment manufacturer data, trade media, the open literature, and interviews wjth horticultural equipment vendors. All assumptions used in the analysis are presented in Appendix A. The resulting normalized (per-kilogram) energy intensity is driven by the effect·s of indoor~environmentaJ conditions, production processes, and equipment efficiencies.

Considerable energy use is also associated with transportation, both for workers and for large numbers of small-quantities trimsported and then redisti:ibuted over Jong distances before final sale.

This analysis reflects typical practices, and is thus intended as a "central estimate". While processes that use Jess energy on a per.unit-yield basis are possible, much more energy.intensive scenarios: also occur. Certain strategies for lowering energy inputs (e.g .. reduced jlJumjnation levels) can result in lower yields, and thus not necessarily reduce the ultimate energy-intensity per unit weight. Only those srrategies that improve equipment and process energy efficiency, while not correspondingly attenuating yields would reduce energy intensity.

Due to the proprietary and often HJiclt nature of Ca.nnabjs cultivation, data are intrinsically uncertain. Key uncertainties are total production and the indoor fraction thereof, and the corresponding scaling up of relatively well-understood intensities of energy use per unit of production to state or nationaJ levels could result in 50% higher or lower aggregate results. Greenhouse-gas emissions estimates are in turn sensitive to the assumed mix of on- and off-grid power production technologies and fuels, as offgrid production (almost universally done with diesel generators} can - depending on the prevailing fuel mix in the grid - have substantially higher emissions per kilowatt-hour than grid power. Final energy costs are a direct function of the aforementioned factors, combined with electricity tariffs. which vary widely geographically .and among customer classes. The assumptions about vehicle energy use are likely conservative, given the longer~ range transportation associated with interstate distribution.

Some localities (very cold and very hot climates) will see much larger shares of production indoors. and have higher spaceconditioning energy de1nands than the typical conditions assumed here. More jn~depth analyses could explore the variations introouced by geography and climate, alternate technology configurations. and production techniques.

4. Energy implfoations

AcceJerated electricity demand growth has been observed. in areas reputed to have extensive indoor Cannabf.s cultivation. For example, following the legalization of cuJtivation for medicaJ purposes (Phillips. 1998; Roth, 2005; Clapper el al., 2010) in California in J 996, Humboldt County experienced a 50% rise in per-capita residential electricity use compared to other parts of the state (Lehman and Johnstone. 2010).

Aside from sporadic news reports (Anderson, 2010; Quinones, 2010), policymakers and consumers possess little information on

the energy impJic~tions of this practice. A few prior studies tangentially mentioning energy use associated with Cannabis production used cursory methods and under~escimate energy use significantly (Plecas et al .. 2010 and Caulkins, 2010).

Driving the Jarge energy requirements of indoor production facilities- are lighting ieveJs matchJrig those found In hospital operating rooms (500-times greater than recommended for reading) and 30 hOurly air ch<.nges (6-times the rate in high-tech Jaboratories, and 60-times the rate in a modern home), Resulting power densities are on the order of 2000 W/m2, which is on a par with that of modern datacenters. Indoor carbon dioxide (C02 )

levels are often raised to 4-times natural levels in order ta boost plant growth. However, by shortening the growth cycle, this practice may reduce fina1 energy intensity,

Specific energy uses include high-intensity lighting, dehumidHlcation to remove watEr vapor and avoid mold formation, space heating or cooling during non-illuminated periods and drying, pre-heating of inigation Water, generation of carbon dioxide by burning fossil fuel, and ventilation and air~conditioning to remove waste heat. Substantial energy inefficiencjes arise from air cleaning, noise and odor suppression. and inefficient eJectric generators used to avoid conspicuous utility biils. So-called ''grow houses" -residential buildings converted for Cannabis production - can contain 50,000 to 100,000 W of installed lighting power (Brady, 2004). Much larger facilities are also used.

Based on the model developed in this article, approl<imately 13,000 kW/h/year of electridzy is required to operate a standard production module (a J.2" 1.2 x 2.4 m (4 x 4 x B fr)chamber). Each module yields approximately 0.5 kg (1 pound} of final product per cycle, with four or five production cycles conducted per year. A single grow house can contain 1 O to J 00 such 1nodules.

To estimate national electridty use, these normalized Vd.lues are applied to the lower end of the range of the aforementioned estimated production (10,000t per year). with one-third of the activity takes place under indoor conditions. This indicates electricity use of about 20 TW/h/year nationally (including offgrid production). This is equivalent to that of 2 million average U.S. homes. corresponding to approximately 1 % of national electricity consumption - or the output of 7 Jarge electric power plants (l<oomey et al., 2010). This energy, plus associated fuel uses (discussed below), is valued at $6 billion annually, with associated emissions of 1 s mHHon metric ton of C02 - equivalent to that of 3 million average American cars (Fig. l and Tables J-3.)

fuel is used for several pUtposes, in addition to electlicity. The carbon dioXide injected into grow rooms to increase yields is produced industrially (Overcash et al., 2007) or by burning propane or natural gas within the grow room contributes about 1-2% to the carbon footprint and represents a yearly U.S. expenditure of $0.1 biHion. Vehicle use .associated with production and distribution contributes about 15% of total emissions, and represents a yearly expenditure of $1 billion. Off-grid diesel- and gasoline-fueled electric generators have per~kiJowatt-hour emJssions burdens that are 3- and 4-times those of average grid electricity in California. It requires 70 gaJJon of diesel fueJ to produce one indoor Cannabis plant (or the equivalent yield per unit area), or 140gal!on with smaller, Jess-efficient gasoline generators.

Jn CaHfomia, the top~producing state, indoor cultivation is responsible for about 3% of all electricity use. or 9% of household use.2 This corresponds to the electricity use of 1 million average California homes. greenhousehgas emissions equaJ to those from 1 million average cars. and energy expenditures of $3 billion per

2 This Js somewhat hi_gJ1er than estimates previously made for British Cotumbia, specifically. 2% o( total Provincial electrictty use or 6% of re.,:idenUaI use (Garis, 2008; Be/!ett, 2010).

Please cite this article as: Mills. E. The carbon footprint of indoor Cannabis production. Energy Policy (2012), http://dx.doi.org/ 10.1016/j.enpol.2012.03.023

E. Mills f Energy Policy I (am} IB-fD 3

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fig. 1. Carbon footprint of indoor Cannabis product:lon.

Table 1 Carbon footprint of indoor Can11abis pmdtlctioo, by en<I use ( averag.e U.5

conditions}

Energy intensity Emissions ~CfOt {J<gCO;r (kW/h/kg yield) emi~sions/kg yield)

Wghting 2283 1520 33% Ventilation & 1848 1231 27% d~humid.

Afr conditioning 1284 855 19% Sp.;ice he.at 304 202 •• CO;; injecred lo 93 82 2%

increase foliage: Water handling 173 115 2%

Drying 90 60 1% Vehides 546 ,,. Total 607< 4612 100%

Note: Tbe tafculatlons are based on U.S.-aver~g~ carbon burdens of0.666 kg/kW/h. ··co2 injected to increase foliage" reptesents combustion fuel to make on·site ~· Ass-umes 1S% of efectridty is prod1,11:ed ln off~grld generators.

year. Due to higher eJectricity prices and cleaner fueJs used to make electricity, California incurs 50% of nationaJ energy costs but contributes onJy 25% of national C02 emissions from jndoor Cannabis cultivation.

From the perspective of individual consumers, a single Cannabis cigarette represents J .5 kg ( 3 pounds) of C02 emissions, an amount equal to driving a 44 mpg hybrid car 22 mile or running a 100-watt light bulb for 25 h, assuming average U.S. electricity emissions. The

electricity requirement for one single production module equals that of an average U.S. home and twice that of an average Califumia home. The added electricity use is equivalent to running about 30 refrigerators.

From the perspective of a producer, the national-average annual energy costs are approxJmately $5500 per module or $2500 per kilogram of finished product. This can represent half the wholesale value of the finished product {and a substantially lower portion at retail), depending on local conditions. For average U.S. conditions, producing one kilogram of processed Cannabis results in 4600 kg of C02 emissions to the atmosphere (and 50% more when off-grid diesel power generation is used). a very significant carbon footprint. The emissions associated with one kilogram of processed Cannabis are equivalent to those of driving across country 1 J times in a 44-mpg car.

These results reflect typical production methods. Much more energy-intensive methods occur, e.g., rooms using 100% recirculated air with simultaneous heating and cooling, hydroponics, or energy end uses not counted here such as well-water pumps and water purification systems. Minimal information and consideration of energy use. coupled wjth adaptations for Sffurity and privacy (off-grid generation, no daylighting, odor and noise control) lead to parcicuJarly inefficient configurations and corresponding)y elevated energy use and greenhouse~gas emissions.

The embodied energy of inputs such as soil, fertilizer. water, equipment, building materials. refinement, and retailing is not estimated here and should be considered in future assessments. The energy use for prodocing outdoor-grown Cannabis (approximately two-thirds of all production) is also not estimated here.

Please cite this article as: Mills. E .. The carbon footprint of indoor Cannabis production. Energy Policy (2012), http://dx.doi.org/ l 0.1016Jj.enpol.2012.03.023

4 f, Mill.5 /Energy Policy 1: (nH) rff-111

Table 2 Equivalendes.

Jndoor Cannabis production consumes .. "' oJCallforni<i"s €ct.al electdcJcy, and

U.S. CJ.nnabis production & (!istrlbution SG Blllion, am! results in rhe ienergy costs ... emissJons of

U.S. electrldty use for Cannabis 1.7 Million average U.S. productitm is equivalent to that of.. homes

Calirornia Cannabis production and 53 Billion, and results in rhe distribUllon energy costs ... emissions of

California .electricity use for Cannabis Mf!Jion d'ver.:ige CaJifornfi; produclion is equivalenr to that of,. homes

A typical 4 )I:. 4 x 8-ft production module, Average US. Jwmes, or accomoda!ing four plants ;it a time, consumes as much electricity as ..

Every 1 kilogram of cannabis prodm::ed 4,3 Tonnes of C02 using national-average grj(,f power results in the emissions of, ..

Every 1 kg orcann.:ibis produced using CJ 4.6 Tonnes of C02

prorated mix of grid and off-grid generators results in the emissions of .. ,

Every t kg nf C;innabis produced using ••• Tonnes of C02 off-grid gencraton results in the emissions oL ..

Transport:ition (wholesak-trctall) 226 Liters of gasoline pe1 kg consumes ...

One Cannabis cigarette jJi like driving ... 3? km in d 5.3 1/100 km (44 mpg) car

Of the total wholesale price .. 49" ls for energy (at avtrage U.S. prices)

If improved practices applicable to commercial agricultural greenhouses are any indication~ such large amounts of energy are not required for indoor Cannabis production.3 The appJication of cost-effective, commercialiy-avaHable efficiency improvements to tbe prototypical facility modeled in this article could reduce energy intensities by at least 75% compared to the typicalefficiency baseline. Sud1 savings would be valued at approximately $40.000/year for a generic 10-module operation (at California energy prices and $10,000/year at U.S. average prices) (Fig. 2(a)-(b). These estimated energy use reductions reflect practices that are commonplace in other contexts such as more efficient components and contro1s (lights. fans, space-condition· ing). use of daylight. optimized air-handling systems, and relocation of heat-producing equipment out of the cultivation room. Moreover, strain choice alone results in a. factorMof-two difference in yields per unit of energy input (Arnold, 201 J ).

3' See, e.g .. this llniverstry of Mic:hlgan resource~ bttp:fl\VW\'11.hJt.mso.edu/ energy/DefauJt.Jitm

9% of Califomia's '" of totdJ 11.S, 2% ofU5. household electricity electricity. household

and clectr!city

IS Million tonnt?s per Equal to 'the 3 million year of greenhouse emissions of average cars gas emissions {CO?)

(>( 7 Aver.age U.S. power plants

4 Million tonnes pet Equal to the l Million ye.;r of greenhouse emissions of average cars gas emissions (C02)

2 Average California or 29 Average new homes refrigerators

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{44 mpg) car

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(44 mpg) car

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{ 44 1np g) car

Or Sl Billion dollars S46 Kilograms of annually. and C02 pe-r

kilogram of final product

Emitting 2 kg of C02, whicl:) is 2S Hours about equi'Yalent to

operatiJlg d 100-w;i.n Iighr bulb for

5. Eneigy intensities in context

Policymakers and other interested parties will rightfully seek to put these energy indicators in context with other a.rtiv:ities in the economy.

One can readHy identify other energy end-use activities with far greater impacts than that of Cannabis production. For example, automobiles are responsible for about 33% of U.S. greenhouse-gas emissions (USDOE, 2009). which islOO-times as much as those produced by indoor Cannabis production (0.3%), Tue approximately 20 iW/hfYear estimated for indoor cannabis production is about one/third that of U.S. data centers (US EPA. 2007a. 2007b), or one-seventh that of U.S. household refrigerators (USDOE. 2008). These shares would be much higher in states where Cannabis cultivation is concentrated (e.g., one half that of refrigerators in California (8rown and Koomey, 2002)).

On the other hand. this level of energy use is high in comparision to that used for other indoor cultivation practices. primarily owing to the lack of daylighting. For comparison; the energy intensity of Belgian greenhouse.s is estimated at approximately 1000 MJ/m2 (De Cock and Van Lierde, No date), or about 1% that estimated here for indoor Cannabis production.

Please cite this article as: Mills, E., The carbon footprint of indoor Cannabis production. Energy Policy (20!2), http:f/dx.doi.org/ 10.1OJ6/j.enpol.2012.03 .023

E. Mills I F.nergy Policy I (11n-) 111-tlf 5

Table J Energy indicators (aver:ige U.S. conditi1ms}.

Energy use Connected load Power density £leer fuel ro i:mJ:e C02 Transportation fuel

On~grid res>Jlts Energy cost Energy cost Fr.action of wholesale price C02 emissions C02 emissJons

Off~grid results (diesel) Energy cost Energy cost Fr.action of wholesale prire co~ emissions co~ emissions

Blended on/of( grid results

per cycle, per produaion module

27S6 03 27

846

1936

1J83

2982

Energy cost 897 Energy cost Fracdon of wholes.;ile price C02 emissions C02 e_mjssions

2093

Of which. indoor C02 9 production

Of whkh, vehicle use f'UE'l use During production DistJibutioo Cost During production Pistribution Emjssions

per year, per produdion module

3,225 2,169 12.898 J.6 127

3.961 l,866 47% 9,0SS 4.267

5,536 2,608 65% 13,953 6,574

4,197 1,977 49% 9.792 4,613

47

79 147

77 143

191 During productton Distribution 355

(watts/module} (Wt).tts/m~)

{kW/hf module} (GJ) {Gallons

S/module $/kg

kg kg/kg

$/module $/kg

kg kgCO,/kg

Sf module $/kg

kg kgC02/kg

kgC02

Ulers/kg liters/kg

$/kg $/kg

kgCO,/kg kgCO,/kg

Energy intensities can also be compared to those of other sectors and activities,

• Pharmaceuticals - Energy represents 1 % of the value of U.S. pharmaceutical shipments (Galitsky et al .. 2008) versus 50% of the value of Cannabis wholesale prices. The U.S. "Pharma" sector uses Sl billion/year of energy: Indoor Cannabis uses $6 billion.

s Other industries - Defining "efficiency" as how much energy is required to generate economic value, Cannabis comes out the highest of al! 21 industries (measured at the three-digit SIC level). At -20MJ per thousand dollars of shipment value (wholesale price), Cannabis is followed ne><t by paper (-14), nonmetallic mineral products (- lO), primary metals (-8 ), petroleum and coal products ( -6), and then chemicals (-5) (Fig. 3 ). However, energy intensities are on a par with Cannabis in various subsectors (e.g., grain milling. wood products, rubber) and exceed those of Cannabis in others (e.g., pulp mills).

e Alcohol- The energy used to produce one marijuana cigarette would also produce 1 B pints of beer (Galitsky et al., 2003 }.

• Other building typ€s - cannabis production requires 8-times as much energy per square foot as a typical U.S. commercial building (4x that of a hospital and 20x that of a building for religious worship), and 18-times that of an average U.S. home (Fig. 4).

a ~ 8000

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F:ig. 2. C<irbon footprint and energy cost for three levels of efficJency. (.1) rndoor cannabis: carbon footprint. (b) Indoor cannabis: eJe<:tricicy cost Assumes a wholesale price of S4400/kg. Wholesale prices are highfy vari.lb)e and poorly documented,

.....,,., & tO 12 H 18 ta :to

~ ' .

J1g. 3. Comp<iracive: energy intensities, by sector (.2006J

6. Outdoor cultivation

Shifting cultivation outdoors can nearly eliminate energy use for the cuJtivation process. Many such operations, however, require water pumping as well as energy-assisted drying techniques. Moreover, vehicle transport during production and distribution remains part of the process, more so than for indoor operations.

A common perception is that the potency of Cannabis pro~ duced indoors exceeds th01t of that produced outdoors, leading

Please cite this article as: Mills, E., The carbon footprint of indoor Cannabis production. Energy Policy (2012), http://dx.doi.org/ l 0.1016/j,enpol.2012.03.023

6 E. Mills I Energy Policy 1 (dUJ u1-11r

• "

..... WMfhain:• a.nd~

"""'"""'--" ·-·

l'dmtl)' 'llllf8V (MJ/m?-y911r)

'OtilttatOO

~·· .

""

Fig. 4. Compar.ulve energy intensities:. by U.S. building type (2003 ).

"'

consumers to demand cannabis produced indoors. Federal sources (National Drug Intelligence Center, 2005) as well as independent testing laboratories (Kovner, 2011) actually find similar potencies when besr practices are used.

Illegal clearing of land is common for multi-acre plamations, and, depending on the vegetation type, can accordingly mobiJize greenhouse-gas emjssions. Standing forests (a worst-case scenario} hold from 125 to J 500 t of C02 per hectare, depending on tree species, age, and location (National Council for Air .and Soil ln>:prove£nent, 201 o ). For biomass carbon inventories of 750 t/ha and typical yields (5000 kg/ha) [UNODC, 2009), associated biomass-related C02 emissions would be on the order of 150 kg COifkg Cannabis (for only one harvest per location), or 3% of that associated with indoor production. These sites typically host on the order of 10,000 plants, although the number can go much higher (Mallery, 2011 ). When mismanaged, the practice of outdoor cultivation jmposes multiple environmental impacts aside from energy use. These include defor~ estation; destruction of wetlands, runoff of soil, pesticides, insecti~ cides, rodentictdes. and human waste; abandoned solid waste; and unpennitted impounding and withdrawals of surface water (Mallery, 2011; Revelle, 2009). These practices can compromise water quality, fisheries, and other ecosystem services.

7. Policy considerations

Current indoor Cannabis production and distribution practices result in prodigious energy use, costs, and unchecked greenhousegas pollution. While various uncertainties exist in the analysis, the overarching ciuaUtative conclusions are robust. More in..-Oepth analysis and greater transparency of the energy impacts of this practice could jmprove decision-making by policymakers and consumers alike.

There is little, if any, indication that public policymakers have incorporated energy .and environmentaJ c<lnsiderations into their deliberations on Cannabis production and use. There are additional adverse impacts of the practice that merit attention. including elevated moisture levels associated with indoor cultivation that can cause extensive damage to buildings,• as well as

11 Fot' observations from the building inspettors comtnunity. see http:f/w111/\v. nachi.org./mdtijuan.1-grow~ope-ra-dons.htm

Table A1 Config11r<1.clon, environmt'nl.il conditions, sct·points.

Production paramfift'S Growing module

Number of modules in a room Area o(room Cycle duration

1.5

10 22 78

Production continuous throughout the year

47

Illumfn.ttion

IJlumJnancc Ump type

Watts/fa mp .Sa!last losse-s (mix of magnetic & digitol) Lamps per growing module Jlours/day Days/cycle D.aylighting

V.entilacion Ducted Iuminair~ with "sealed" lighting comparrment

Room ventiJalion (suppiy and exhaust fans} filtrafion

Oscilatin& fans: per module, While lights on

Water Applkation

He.iting

Sp.ace conditioning Indoor setpotnt - day Indoor .setPQint - night AC efficiency t>ehomldification Co2 prodU<tion - target conceotr<1tion (mostly natural gas combustion in space} Electric .space heating

Target indoor b~m)dity conditions Fraction of lighting s.y.scem heat productJon removed by luminaire vemllation Ba!Jasr loca1lon

Drying

Leaf phase

25 klux Meta! halide

600 13%

l 18 18 None

150

30

Charcoal 61cers on exhaust: HEPA on supply l

151

Electric submt>rsible heaters

28 20 JO 7)1"24 1500

When lights off to maint.lin indoor setpoint 40-50% 30%

Jnside conditioned space

Space conditioning, oscillating fans. 7 malntaining: S0% RH. 70-60f

a.ctrl<ity <UpplY grid 85% grid·Independent generation (mix 15% or diesel, propane, and gasoline)

m 2 (excJ.

walking area)

m' d.\ys cycles

flowering phase 100 klux ~!gh~prcssure

sodlum 1000 0,13

J 12 60 none

CFM/1000 W of light {free now) ACH

litersJroom· d•y

c c SEER hours ppm

Day,

electrical fires caused by wiring out of compliance with safety codes (Garis. 2008). Power theft is common, transferring those energy costs to the general public (Plecas er al., 2010). As noted above, simply shifting production outdoors can invoke new environmental impacts if not done properly.

Energy analysts have also not previously addressed the issue. Aside from the attention that any energy use of this magnitude normally receives, the hidden growth of electricity demand in this sedor confounds energy forecasts and obscures savings from energy efficiency programs and policies. For exam~ pie. Auflhammer and Aroonruengsawat (2010) identified a

Please cite this article as: Mills, E., The carbon footprint of indoor Cannabis production. Energy Policy (2012), http://dx.doi.org/ 10.1016/J.enpol.2012.03.023

table A2 Assumptions: and conversion f.tcror~»

Servi«> levels Illuminance• Alrchange rates* Operiltions Cyde duration....,. Cydestyear-

AirHo~"'

Lighting Leafing phase Lighting onMtime" Dur;ilion"' Flowering phase Lighting onMtimc* Duration'" Drying Haursjday"' Duration• Equ'rpment Average airMconditioning age Air conditioner efficiency !Standards

incre;;.sed to SEER 13 on 1}23/2006] fraction of lighting system heat produrrJon

removed by Jumlnaire ventllatiOn Diesel generator efficieocy• Propane generator efficiency• Gasoline generator efficiency"" Fractlon of total prod'n with generators"' Transportation; Production ph<ise {10

modules) Daily seNict' (1 vehicle)

Biweekly setvke (2 v-e-hldcs) Harvest (2 vehicles) Total vehide miles"' .. Transportation: Distribution Amount transported whoJesale Mileage (roundtrip)

Retail {02502 M 5 mi!es roundtrip)

Total*"' ft.tel ecooom.Y. typical e<ir fa) Annual tmissions. typical .car faJ

Annual emissions, 44~mpg car""'

CrossMcounrry U.S. mil~ge Fuels Propane fhJ Diesel lbl Gasoline !bJ Eleciric generation mix"' Grid Diesel generators Propane genera.tors GasoUne getieratocs Ernlssions factors Grid e-lcrtridty · · U.S. fcJ Grid electrid'Y - CA jcj Grid electricity- non~CA. US. [cj DieseJ genc-raro~ Propane generator""• Casoiine generator Blended generator mtx.-flfended onjoff~grid generatiori - CABlende-d on/off-grid generation - U.S." Propane C"ombustion Prices Electricity price - grid

(California - PG&E) {rlf Electricity price - grid (U.S.) le] ElectricUy price - off-grid-Efectricity price - blended on/off - CAH Electricity p1ice - blended on/-0ff - U.S.,.,. Propane prjce [fl Gasoline price - U.S. aver.age [f] Diesel price ·- U.S.. .J:Yerage ffJ

25-100 30

78 47

96

18 18

12 60

24 7

5 IO

0.3

27' 2S% 15% 15% 25

78

l L1 JO 2089

5 1208

5668 6876 10.7 519$ 0 2,S98 0.208 4493

25 38 34

85%

•• 5% 2%

0.60.9 0.384 0.64B 0.922 0.877 1.533 0.989 (l,475 0,665 6.:1.1

0.390

0.247 a.390 0.~90 0.268 0.58 0.97 1.05

E_ Mills/ EnerR}' Policy f (HIM) 111'-nr 7

1000 lux Changes per hour

D:ays Continuous production Cubk fC'Ct JIC'T minute, per module

hrs/day daysjcydc

hrs/day days/cycle

hrs days/cyde

Years SEER

55kW 27iiW 5.SkW

Miles roundCriP

Trips/cycle. Assume 20% Jive on site Trips/cycle Trips/cycle Vehicle miles/cyde

kg per trip kmJcycle

VehlcleMkm/cydc Vehide~km/cycle

l/100km kgC02 kgC02/mile kgCO,. kgCO;zfmiJ.e km

Mj/liter MJ/liter MJ/!iter

share

'"""' share sb.are

kgCO,/kW/h kgCO,jkW/h kgCO,fkW/h kgCO,/kW/b kgCO,/kW/h kgCO,JkW/h kgCO,jkW/h kgCO,/kW/h kgCO,/kW/h kgCO,(MBTU

per kWfh (Tjer S)

per kW/ti per kW/h per kW/h per kW/h $/IJter S/bter $/liter

T.abrr A2 {continued)

Wholesale prk"e of Cannabis [gf Production Plants per production mQdule"' Net production per µroductiofJ module !hJ U.S. produc:rion (2011) [ij California production (2011) /iJ Fracdon producfil indoors {i] U.S. Indoor production modules•• C<iJlr indoor production modules"""' Cigaritttes per kg"'* Orher Average new U.S. refrigerator

Electricity use o( a typic.i.J U.S. home·- 2009

UI Electrlcit;v ust ot ;:i tYpicill California home -

2009 jk)

Noles:

4,000 $/kg

4 0.5 kgfc.ydc 10.000 metric tonnes/Y 3,902 metric tonncs/y 33% 1,570,399 612,741 3,000

450 kWlh/ye:;ir 173 kgCO,/y•:>t (U.S.

.;n1eragt-) 11.646 kW/hfyear

15,961 kWJh/year

•Trad€ and product litfrrature; inrervJews with equipment vendors. """"Ca.tcul.ated from other vah.1es, Notes for 1'able KL (aJ. U.S. f:nvlronmental Protection Agency., 2011. fb]. Energy .con~ion facrors, U.S. Department of Energy. http:Jfv.,ww.eia.doe.gov/ cocrgye.xpJaineiJ/index.cfm?page=abour .. energy .units. j.Acce!!ied February 5, 2011 ). (d. United States.: (US.DOE 2011 }; Califomi.l (Maniay et al .• 2002). f dl Average pric:es paJd in Califo-mia and otber stares with invenedMblad: t.arlffs ate very high beta.use virtually all com:umption is in the most expensive tiers. }{ere the f'G&E residen~I tariff as of 1/1/1 l, Tier 5 is used as .;i. pro-)(y for California http:I/ www.pge.rom/rarJtf:s/Rt!sEle.c:Cut-rE'nt.>:Js, {Accessed February 5, 201 l). In practire a wide mix of tariffs apply, .and tn 50rrle states no tier structure is in pli!Ce, or the propartfonaliry of price to volurne is nominal. [eJ. St.;ite-.(evcl residential prices. Wl"!ghted by Cannabis production (frorn Cettman. 2006) whh actuat cariffs and U.S. Energy Information Adrnimstration. "Average Rct.ail t1rke offlectridtyto Ultimate Customers by ~-Use Sector. by Statt", http:// www.eia.doe.gov/electridty/eptnJtable5_.6 __ a.html, (J\Ccessed February 7, 2011) ff}. U5. Energy Information Adtninisfratlon. Gasoline and Diesel Fuel Upd.1~ (as of 2/14}2011) - see http:/lwww.ei-..gov/oog/info/gduJgasdlesel.asp Propane prices~ tittp:/lwww.eja.grYV/driav/~f/per_pri .. prop .. a_.EPLLPAYTA_,dpgal. m.htm, (Accessed April 3, 2011). lg]. Montgornery. 2010. fhl. Toollt'n e-t al. • .2006): Pkcas et <1L 2010. fil. Total Production: Tbe Jower \'alue of 10,000 t per year ls coDServatiVely retained. Were this base .;iidjusted to 2011 values usitl8 10.9%/year nl!t increase lo number of ronsumers between 2007 and .l009 per U.S. Oep:irt~nl or Health <Ind Human SeNices (2010), the result would be approximately 17 mlllion tonnes of total production annua.JJy (indoor and outdoor). Indoor Share of Total Production: The three-fold chaoges io potency over the past two decades. reported by fedt>ral sources, arc attributed at le.a.st in part to the $hifl towards mdoor cultivation see http:l/wwwJustice.gov/ndicfpubs37/37035fn.tttionaLhtrn and {Hudsor1, 200.1). A weigh.tedM.avt"rage potency of 10%'. THC {U.S. Offir.e of Drug Control Policy, 2010) reconciled with assumed 7.5% potency for outdoor production and IS% for Indoor production implies 33.3.%::67.7%. indoor::outdoor product.ion shares. tor reference, as of 2008, fil: of ecadicated plants were from indoor oper.ations. which .are mort' difficult to detect tOOl'l outdoor Operations. A 33% Jndoor share, combined with perpJant yields from Table 2. would c:orrespond to a 4% er.adkation success r.;ttc tor tbe levels reported (415,000 Jndoor plants erad!caced in 2009) by the U.S, Drug Enforcement Agency (httP://www.justice.gov/dea/prop,ramsfrnarijuanablm}. Assuming 400,000 members or medical Cannabis dispensaries 1n Caltt'omia {each of which is permitted to cultivate). and SOX of these produclnt in the generic 10~ module tOQm assumed in this ~nalysjs, output would slightly exceed this study's estimate of total statewide production. In pr<ictice, the vast majority of Indoor production Is no do1..1bt conducted outside of the medical marijuana sys rem. liJ- Total U.S., electricity sales: U.S. energy information .administration, .. retiiil sales of electricity to ultimate customers: T<ital by end-use sector" htr.p:fjwww.eia.gov/ cnc.1f/e!P.t:tric11y/~pm/table5 .. l .html, {Ac«ssed M<irch 5, 201 l) (k}, Califo1nia Ene1gy Commissi;}f), 2009: 2011.

statistically significant, but unexplained, increase in the growth rate for residential electricity in California during the years when indoor Cannabis production grew as an industry (since the midl 990s).

Please cite this article as: MilJs, E., The carbon footprint of indoor Cannabis production. Energy Policy (201;1), http:fldx.doi.org/ 10.1Ol6/j.enpol.2012.03.023

-"' T._ble A3 .,

o-. " Energy tnQdel. _., O"' ~ ro "'n ElECTR!CllY Energy Penetration Rating Numb2r or !riput energy per Units Haurs{day Hours/day O;iys/c.ycle (IW Days/cycle kW/h/cyde kW/hiyear per ~~ "'"" (Watts Ot %1 4 x 4 x Bwft module (leafphase} (flower phase) [flo~r phase) production .,, Er production phast:) mcdule " -· modules served ,... "' l:5 '" ~R· Light

Ott! I.amp~ {1-fP.S} ~le:ct 100% 1,000 1 1,000 w 12. 60 720 3.3S9

!" "' 1Jal1<1.sts (losses) elei::t 100% 13% 1 130 w 12 50 94 438 o., Umps (MH) elect 100% 600 l 600 w '" 18 194 910 "' .. w;:: Ball.ist (lo$$1:s) deer 100% 0 l 78 w lB 18 25 118 Motorized raH motion elect 5' 5 l 0.3 w 18 12 18 60 0 l

g;;- Controllers elect so• 10 10 1 w 24 24 18 60 2 9

r' Ventilation and motsturl! <:entrol Lumioare fan5 {l!iealed from conclitioned ele:ct 100% 454 10 45 w 18 12 18 60 41 222 ... Space) g Main room fans - supply elect 100% 242 8 30 w JS 12 18 60 31 145

n Main room fans - exhaust elect 100% 242 8 30 w 18 12 ,. 60 31 145 "' ~ Grrulating fans (18") elect 100% 130 1 130 w 24 24 '" 60 24' 1,134 g Oehutnidification elect 100% 1,035 4 259 w 24 24 18 60 484 2~67

O' Controllers elect 50% 10 10 1 w 24 24 18 60 2 9

0 Spaceheat nr cooling ]'>

-g. Rl!"Sistam:c heat or AC !Wbl!"n lights off] 90% 1.850 10 167 w 6 12 18 60 138 645 " c:;:irhon dioxide Tnjected to lncre<rse foli~ ~

" "" ~ f'.lrasitic elecrrfdry elect 50% 100 10 5 w 18 12 18 60 5 24 ' 0 AC {see below) elect HJO%

';; ..., ~ 5· Tn-line heater elei::t 5' 115 10 0.6 w 18 12 18 60 1 3

0. Oehumidiflcatioll ( 10% ;idder} elect 100% 104 0 26 w 18 12 18 60 27 1<6

"' 0 MonltorJcontrol elect 100% 50 10 5 w 24 24 18 60 9 44 Q' 0 .... Other -:;;i trrigatkm w.tte1' temperature control elect 50% 300 10 15 w 18 12 18 60 19 •• i'

"' RE"circul.lting carbon filter [scaled room} elect 20% 1.438 10 29 w 24 24 18 BO 54 <52 .! "' g. UV sreriiii:ation Elect 90% 23 10 2.1 w 24 24 18 60 4 18 a <>;• Imgatton pumplng elect 100% 100 10 10 w , , 18 60 2 7 ' "' fumigation elect 25% 2ll 10 J w 24 24 18 60 1 4 Ii Cl Drying

"' "' Dehumidification elect 75% J.035 10 78 w 24 7 13 61 ::l CircuJa.ting fans elect 100% 130 5 26 w 24 7 4 20 g· Heating elect 75% 1.850 10 139 w 24 7 23 109

Electriclt:y S.Ubblta! elect 2,174 10,171

gi Afr-conditioning 10 420 w ss.• 2.726

"' Ug:hting Jo~ds 10 w 259 1212 ~

l'.l! Loads rllat can be remot~d elect 100% J,277 10 w 239 1.119

g Loads that c.an·t be rcmoted elect 100% 452 10 w 85 396 C02-production hear removal elect 4S% 1,118 l7 w 18 12 18 !iO - ·-

Q Electricity Tota! elect 3.22:5 w 2.75$ i2,B98

t:l 0 FUEi. Unlts Technology Rating Number of input energy per Hours/day Hours/day D~ys/cyde (leaf O;))ls{cycle GJ or- CJ or kgCO~/ ~

"' Mix (BTU/h) 4x4x8~ft module (leafphase) (flower phase) (flower phase) kg:C02}cyde year ,... "'

i:;irodU<:tion phase) ::; rnodul~ served 'F!· -0: On-site C02 prodm:rion

" Energy use propane 45% 11.176 17 707 kj/h 18 12 18 !iO 0.3 1.5 c. C02 production - > emissions kg/C02 20 93 51. b ExtcrnaJiy produced lndustrfa.I C02 S% 1 0.003 liters 18 12 18 60 0.6 2.7

g_ C02/hr Weithted...average on-site/purchased kgC02 2 10

£. Mitts/ Enetgy Polir:y 1 (Mii) IH-IK 9

for Cannabis producers! energy~related produc.t.ion costs have historically been accepuble given low energy prices and high product value. As energy prices have risen and wholesale commodity prices fallen, high energy costs (now 50% on average of whoJesale value) are becoming untenable. Were product prices to fall as a result of legalization, indoor production could rapidly become unviable.

for JegaJJy sanctioned operations. the appJication of energy performance standards, efficiency incentives .and education, coupled with the enforcement of appropriate construction codes could Jay a foundation for public-private partnerships to reduce undesirable impacts of indoor Cannabis cuitivation.5 There are early indications of efforts to address this.6 Were such operations to receive some farm of independent certification and product labeling, environmental impacts could be made visible to otherwise unaware consumers.

Aclmow!edgmeot

Two anonymous reviewers provided useful comments that improved the paper. Scott Zeramby offered particularly vaJuabJe insights into technology characteristics, equipment configurations, and market factors that influence energy utiJjzation jn this context and reviewed earlier drafts of the report.

AppeodixA

See Tables A1-A3.

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Toonen. M.,Ribot, 5., Thissen,]., i006. Yield of illicit indoor Cannabis cultiv<ition in the Neth~rlands.journaJ of Forensic Sdc-m:e 15 (5), 1050-1054 (http:flwww. n<:bi.nlm.nih.gov/pubmcd/17018080>.

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U.S. Department of Energy, 2009. "Report DOE/EJA-OS73(2009), Table 3. U.S. Depattmeot of Energy. 2011. Voluntary Reponing of Creenhou~ Gases

program ( http:flW\vw,eia.doe,gov/oi<if/1605/ce-!atlors.htmt ). {aceessed Feb~ ruary 7. 2011 )_

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Please cite this article as: Mills, E .. The carbon footprint of indoor Camuibis production. Energy Policy (2012). http://dx.doi.org/ Jo. J Ol 6/j.enpol.2012.03.023

JO E.. Mills J Energy Policy I (Dtt) Ml-ltl

us EPA. 2007;i. Report to Congress on Server and Data Center Energy Effl<:lency: Public L:lw 109-.<131. Washingron, DC: U.S. Environmenral ProtecrJon Agency, ENERGY STAR Program. August 2.

u.s. Environmental Protection Agency, 2007b. Reporr ro Congress on Server and Oar.t Center Energy fftidency Publk law 109·431 133 pp.

U.S. Environmental Protection Agency, 2011. Emission Facts: Average Annual Emissions and Fuel Consumption For P.uSt:nger Cars and Llght Trucks. (http:// www.epa.govJoms/corisumer/f00013.htm). (accessed J:ebruary 5. 2011).

U.S. Office of N<itionaJ Drug Control Policy, 2011. Marijuana Faru and Figures. (htrp:lfwww.whitehollsedou.gpolicy.gov/drugfact/marljuana/marlju<1.n;;a_ff. htmf#extentofuse). (accessed June 5, 201 I).

UNQDC, 2009. World Drug Repon: 2009. United Nations Office on Drugs and Crime, p. 97. ( hl.tp:flwww_u nodc.oJX/unodc/enfdar.a-and-anaJysisfWDR-2009. html) For U.S. crniditions, indoor yields per unit area are ~sdmated as up ro 15-rlmes greater than outdoo1 yields.

Please cite this article as: Mills. E., The carbon footprint of indoor Cannabis production. Energy Policy (2012), http://dx.doi.org/ 10, 1016/j.enpo!.2012.03.023

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