On remand from the California Supreme Court’s decision in Sierra Club v. County of Fresno, 6 Cal.5th 502 (2018) (“Friant Ranch I”), a court of appeal has held that CEQA requires full decertification – not partial decertification – of an EIR that has been adjudged inadequate in any respect. In addition, the
University Campus Was Not an Illusory Element of Project Under CEQA
The court of appeal found the EIR for a master planned community sufficient because it adequately described and analyzed impacts of the proposed project, which included a university, and was not required to consider the speculative possibility that the university would never be built. Environmental Council of Sacramento v. County of Sacramento, 45 Cal.App.5th…
Power Plant EIR Defeated By Inadequate Responses to Commenters’ Proposed Mitigation Measures
An EIR that did not squarely respond to detailed comments recommending additional mitigation measures has been held not to comply with CEQA. Covington v. Great Basin Unified Air Pollution Control District, 3d Dist. Court of Appeal Case No. C080342 (certified for publication 12/23/2019). The court of appeal emphasized that where an EIR identifies certain…
California Supreme Court Sets Standard for Air Quality Impact Analyses Under CEQA
The California Supreme Court has overturned the environmental impact report for a mixed-use development project, holding that the EIR inadequately explained the human health consequences of significant air pollutant emissions that would result from the development. Sierra Club v. County of Fresno, Cal. Supreme Court Case No. S219783 (Dec. 24, 2018). In so doing,…
EIR Comments Should Improve The Environmental Review Process, Not Derail It
CEQA guidelines require only that a lead agency give detailed responses to comments that identify an important new matter not discussed in the draft environmental impact report or raise questions about a significant environmental issue, the Fourth District Court of Appeal ruled, allowing Orange County to proceed with a long-considered expansion of a county jail.…
Highway 101 EIR Felled by Redwoods
Caltrans’s analysis of impacts to redwoods from realignment of a one-mile stretch of Highway 101 has been rejected. The court of appeal ruled that the project EIR both failed to identify any significance threshold for impacts to redwoods and impermissibly labeled mitigation measures as project features. Lotus v. Department of Transportation, No. A137315 (First …
Comment Periods Open on New Fracking Regulations and Scope of Statewide EIR
In the face of mounting public pressure to address the potential perils of hydraulic fracturing, California has embarked upon a multi-faceted program to strengthen its oil and gas regulations, perform comprehensive environmental studies, and increase public disclosure. On November 15, 2013, the Department of Conservation published two notices seeking comments on steps it is taking…
Judicial Review of Environmental Impact Reports: Is There Really A Need for CEQA Reform?
Every few years, with El Nino-like regularity, a wave of interest in CEQA reform sweeps through the business community, accompanied by pleas to the legislature to overhaul the statute. In the end, few substantive changes are made. This year is no exception. (See June 14th post).
Many of the recurring concerns involve the unpredictability of litigation challenging EIRs. As is illustrated by the recent appellate court opinion in North Coast Rivers Alliance v Marin Municipal Water District, that unpredictability arises not from deficiencies in CEQA’s standard for judicial review, but from the failure of some courts to apply it.
The trial court in North Coast Rivers put the EIR a water district had prepared for a desalination project under a microscope, and found its treatment of eleven separate issues “inadequate.” By contrast, in a straightforward application of CEQA’s standard of review — which requires judicial deference to agency findings of fact and policy determinations — the court of appeal reversed the lower court judgment and upheld the EIR.
Among other things, the court of appeal’s meticulous and carefully reasoned opinion addresses:
- AB 32 standards and greenhouse gas significance thresholds
- Significance thresholds for aesthetic impacts
- Mitigation standards and deferred mitigation
- Description of the affected environment
- Use of pilot studies to assess potential impacts
- Treatment of regulatory agency protocols for analyzing impacts
- Analysis of inconsistencies with relevant plans
- Triggers for recirculation of an EIR
A detailed summary of the trial and appellate courts’ contrasting rulings follows.
Continue Reading Judicial Review of Environmental Impact Reports: Is There Really A Need for CEQA Reform?
Stadium Expansion Project Required EIR Based on Traffic and Parking Impacts
Perhaps reflecting a north-south division over the importance of a parking space, the Fourth District has held that impacts of a stadium project on parking, together with traffic, necessitated preparation of an EIR. Taxpayers for Accountable School Bond Spending v. San Diego Unified School District, No. D060999 (Fourth Dist. April 25, 2013). The court …
EIR Required for Oak Woodland Management Plan
Public agencies generally prefer not to prepare EIRs – at least for their own plans and projects – unless they have to. And CEQA attempts to avoid redundancy by encouraging reliance, to the extent possible, on a previously certified EIR to support the approval of a subsequent action. So, in 2008, when El Dorado County …