Supreme Court Holds Inadequate Effort to Explain Nature and Magnitude of Significant Environmental Effect Subject to De Novo Review, Substitution Clause and Sufficient Guidance Make Mitigation Measures Not Vague

December 28th, 2018

By: Thomas Law Group

In Sierra Club v.
County of Fresno
(2018) 2018 Cal.LEXIS 9831, the California Supreme Court held
that, where the
description of an environmental impact “lacks analysis or omits the magnitude
of the [significant] impact,” the reviewing court applies the de novo standard
of review.  The substantial evidence standard of review is reserved
for wholly factual questions; where a question presented is both legal and
factual, the issue shall be reviewed de novo. The Court also found that
a substitution clause in a mitigation measure did not constitute deferred
mitigation, a mitigation measure that only partially reduced a significant impact
did not violate CEQA, and mitigation measures involving HVAC installation and
tree selection were adequately enforceable.

The proposed project includes a specific plan and specific
plan update covering 942-acres that together contemplate the construction of
about 2,500 single and multifamily homes, commercial and recreation areas, and
dedicated open space (Project) into a master-planned “pedestrian friendly”
community near the unincorporated area of Friant in northern Fresno County
(County). The County adopted Project alternative 3 (Northeast Development
Configuration, the “environmentally superior alternative”), certified the EIR,
and approved the Project.  At the same
time, the County adopted a mitigation monitoring program, which noted compliance
would be enforced through subsequent conditions on future discretionary
actions, including use permits and tentative subdivision maps.

The Sierra Club, Revive San Joaquin, and League of Women
Voters of Fresno filed suit alleging that the project approval violated CEQA.
The trial court denied the petition for writ of mandate and noted that “it may
not exercise its independent judgement on the evidence, but must determine only
whether the act or decision is supported by substantial evidence.” Sierra Club timely
appealed the decision pertinent to the air quality impacts and certain
mitigation measures.

In May 2014, the Fifth District Court of Appeal held that the
EIR was inadequate because it failed to include an analysis that “correlated
the [P]roject’s emissions of air pollutants to its impact on human health,” only
provided air quality impact mitigation measures that were “vague,
unenforceable, and lack[ed] specific performance criteria,” and failed to
support the claim that the mitigation measures would “substantially” reduce the
Project’s significant air quality impacts. The Appellate Court reversed the
trial court judgement on those grounds only and directed the preparation of a
revised EIR. Real Party, Friant Ranch LP, appealed the Appellate Court

The Supreme Court granted review on the issues of the air
quality impact findings and conclusions in the EIR as well as the adequacy of
certain mitigation measures.

The Court held that an EIR must (1) include “sufficient
detail” to enable readers to understand and to “consider meaningfully” the issues
that the proposed project raises, and, (2) make a “reasonable effort to
substantively connect” the Project’s significant air quality impacts to likely
health consequences.

Further, the Court held a lead agency has not impermissibly
deferred mitigation measures where it leaves open the possibility of employing
measures consistent with evolving technology nor are such measures
impermissibly vague where it can be demonstrated in “good faith” that the
measures will be at least partially effective.

The Court first recognized the familiar distinction between
the standard of judicial review applicable to claims that the agency failed to
proceed in the manner CEQA provides as compared to claims that the agency reached
factual conclusions unsupported by substantial evidence: “[w]hile we determine
de novo whether the agency has employed the correct procedures, ‘scrupulously
enforc[ing] all legislatively mandated CEQA requirements’ [ ] we accord greater
deference to the agency’s substantive factual conclusions.” The Court then
recognized that “the question whether an agency has followed proper procedures
is not always so clear” especially when the issue is “whether the discussion
sufficiently performs the function of facilitating ‘informed agency
decisionmaking and informed public participation.’”

Relying heavily on Laurel
Heights Improvement Assn. v. Regents of University of California
(1988) 47
Cal.3d 376 (Laurel Heights I), the
Court found that the standard of review for the adequacy of an EIR’s discussion
of certain impacts is subject to de novo review where “a description of an
environmental impact is insufficient because it lacks analysis or omits the
magnitude of the impact is not a substantial evidence question.”

The Court provided several examples and prior decisions addressing
procedural issues subject to the de novo standard of review:

  • Did the agency provide sufficient notice and
    opportunity to comment on a draft EIR? (Fall River Wild Trout Foundation v.
    County of Shasta
    (1999) 70 Cal.App.4th 482, 491-493; Pub. Resources Code, §
    21092; Guidelines, § 15087.)
  • Did the agency omit the required discussion of
    alternatives or consider a reasonable range of alternatives? (Guidelines, §
    15126.6; Laurel Heights I.)
  • Did the agency fail to reasonably describe the
    nature and magnitude of a project’s significant environmental effect?  (Berkeley
    Keep Jets Over the Bay Com. v. Board of Port Cmrs
    . (2001) 91 Cal.App.4th
    1344, 1371; Cleveland National Forest Foundation v. San Diego Assn. of
    (2017) 3 Cal.5th 497, 514–515.)
  • Did the agency omit material necessary to
    informed decision making (Kings County Farm Bureau v. City of Hanford
    (1990) 221 Cal.App.3d 692, 712; East Peninsula Ed. Council, Inc. v. Palos
    Verdes Peninsula Unified School Dist.
    (1989) 210 Cal.App.3d 155, 174)
  • Did the agency respond to comments? (Rural
    Landowners Assn. v. City Council
    (1983) 143 Cal.App.3d 1013, 1021–1023.)

The Court contrasted these with factual issues like the
decision to use a particular methodology and reject another.

Similar to the facts in Laurel
Heights I
, the Court found that, while the EIR’s conclusion as to the
impact may have been correct, the analysis and discussion of the significant impact
was deficient as an EIR must “reasonably describe the nature and magnitude of
the adverse effect.” The core purpose of an EIR is to inform the public and
decision-making body, regardless of the conclusion drawn. In certifying the
EIR, the County failed to disclose the analytic route that it took in making
its decision relating to the Project’s significant air quality impact. This was
a CEQA procedural issue as the Court determined it resulted in noncompliance
with CEQA’s information disclosure provisions. Thus, the Court held, de novo
review was proper.  

Applying the de novo standard of review to the EIR’s
analysis of the Project’s significant air quality impacts, the Court found that
the EIR’s discussion failed to correlate health impacts with the Project’s air
emissions as required by CEQA Guidelines section 15126.2. It was insufficient
that the EIR provided a “general discussion of adverse health effects
associated with certain Project-related pollutants,” recognized “Fresno County
suffers from the ‘most severe’ ozone problems,” and acknowledged that a more
detailed analysis on health impacts was “not possible at this early planning
phase.” Critically, the EIR failed to indicate the anticipated ozone emission
levels as a result of the Project. The analysis “[was] not meaningful …because
the reader ha[d] no idea how much ozone [would] be produced.”  The Court held that the EIR’s discussion of
the Project’s significant air quality impacts was deficient; it must give a
sense of the “nature and magnitude of the health and safety problems…resulting
from the Project as required by the CEQA Guidelines … [or] explain why it was
not feasible to provide an analysis.”

The Court found that briefs from the County, the Real Party,
and amici curiae clarifying the connection between air emissions information in
the EIR and health impacts information in the EIR were “irrelevant.” Relying on
Vineyard, the Court held that the
question is not whether the Project’s impacts can be clearly explained, but whether they were at the time that the Project was approved. The County’s plan
to require Health Risk Assessments as part of future development projects
approved within the specific plan area was also irrelevant where the issue was
the sufficiency of the EIR’s discussion of the Project’s significant air
quality impacts, not the sufficiency of future studies.

Turning to the Project’s mitigation measures, the Court
found that the EIR was incorrect to claim a mitigation measure would
“substantially reduce air quality impacts” without factual support.

The Court next held that a mitigation measure is not
deficient where it leaves open the opportunity to add or substitute other
measures when they become technologically available. The Court established that
this kind of substitution clause “should be encouraged….and [was] not an
impermissible deferral.”

The Court also held that Project mitigation measures
relating to HVAC systems and tree-planting were not impermissibly vague. The
first identified the anticipated cost for a HVAC catalyst that was considered
feasible and detailed the HVAC brand or equivalent that could be installed. The
latter required tree varieties be planted that would shade 25% within 20 years
of planting, which “provide[d] sufficient guidance for selecting appropriate shade
trees.” Contrary to the Appellate Court’s holding, it was of no issue that the
burden of enforcement of mitigation measures was on the County as the EIR and
Specific Plan was not impermissibly vague on the means of enforcement.

Finally, the Court held that a lead agency does not violate
CEQA for approving a project though the environmental impacts are not reduced
to less than significant levels. CEQA is satisfied where a project’s mitigation
measures only partially reduced significant impacts “as long as the public is
able to identify any adverse health impacts clearly, and the EIR’s discussion
of those impacts includes relevant specifics about the environmental changes
attributable to the project.” In such a situation, unmitigated effects must be
outweighed by the project’s benefits—whether economic, social, technological,
or other, as documented in a statement of overriding considerations. 

Key Point:

“[A] sufficient discussion of significant impacts requires
not merely a determination of whether an impact is significant, but some effort
to explain the nature and magnitude of the impact.” The determination whether
an EIR achieves its informational purpose by providing such details is subject
to de novo review.