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Posts Tagged ‘Kings County’


Court of Appeal Views Appellants’ Failure to Present and Discredit Evidence favorable to the Agency as a Concession that Substantial Evidence Does In Fact Support Agency

Tuesday, July 17th, 2012

In an unpublished decision, El Pueblo Para El Aire Y Agua Limpio v. Kings County Board of Supervisors, 2012 Cal. App. Unpub. LEXIS 4984, Greenaction for Health and Environmental Justice and El Pueblo Para El Aire y Agua Limpio (collectively appellants) sued the Kings County Board of Supervisors (County) alleging that the County’s approval of a project to expand an existing hazardous waste disposal facility violated the California Environmental Quality Act (CEQA). Appellants also presented civil rights causes of action under Government Code sections 11135, 12955, and 65008. The Fifth Appellate District Court of Appeal agreed with the trial court, finding that the CEQA claim was properly rejected and upholding demurrers to the civil rights causes of action.

The court first concluded that appellants’ claims of CEQA noncompliance were not persuasive. Appellants attacked the County’s final subsequent environmental impact report (FSEIR) in three respects: (1) the health-related impacts were not sufficiently analyzed; (2) the daily truck traffic baseline used was inflated; and (3) the cumulative impacts analysis did not include all the relevant information and was thus underestimated. Pertaining to the first claim, appellants alleged that the County did not have sufficient information to judge the project’s true impacts on public health, the County should have conducted an additional health survey, and the County had an obligation to reexamine the project’s impacts due to new information brought to light by the Greenaction health study.

The court first explained that appellants had waived their claims by failing to adhere to the well-established principle that when an appellant is challenging an EIR for insufficient evidence, the appellant must lay out the evidence favorable to the other side and then show why it is lacking. Appellants’ failure to present all the evidence was viewed by the court as a “concession” that there was, in fact, substantial evidence to support the County’s findings.

The court next held that the County properly refused to conduct an additional health test as requested by appellants. “CEQA does not require a lead agency to conduct every test … recommended or demanded by commentors” (El Pueblo Para El Aire Y Agua Limpio v. Kings County Board of Supervisors, 2012 Cal. App. Unpub. LEXIS 4984 at 47). Since the court found that the FSEIR reflected an adequate, good faith effort to ascertain the project’s potential impacts on public health, the court concluded that the County did not need to conduct an additional test. The court further explained that the county’s response to the requests for an additional test adequately explained why the County had refused to conduct another test, supporting the County’s decision with substantial evidence.

Lastly, the court explained that the County did not need to recirculate its EIR. Appellants’ argument rested on their belief that the Greenaction health survey presented new information, thus changing the environmental setting of the project from the one analyzed in the FSEIR. However, using the CEQA definition of “environmental setting,” which is “the surrounding physical conditions such as topography, air quality, plant life and water resources,” the court concluded that since the information from the survey was about birth defects, there was no change in the project’s environmental setting. (Id. at 61-62). There was no new information presented, therefore the County’s decision not to recirculate the DSEIR was supported by substantial evidence as well.

Appellants’ second and third claims that the truck traffic baseline and the cumulative impacts analyses were inadequate under CEQA were both rejected by the court under the exhaustion doctrine. By failing to raise the two claims either during the administrative proceedings or in the appeal letter, the court explained that these claims were forfeited due to appellants’ failure to exhaust all the available administrative remedies before bringing the suit to court.

The court also addressed non-CEQA, civil rights causes of action under Government Code sections 11135, 12955, and 65008. All three of these causes of action were rejected. The court explained that the appellants were trying to use the statutes in situations that were beyond their scope as defined by each statute itself along with interpretations used by other courts in previous cases. Therefore, the trial court’s holding and the County’s approval of the expansion of the hazardous waste site were reaffirmed.

Written By: Tina Thomas, Ashle Crocker and Grant Taylor (law clerk)
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