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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


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 decision.

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 Governments (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.

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dateDecember 28th, 2018byby


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