Thomas Law Blog

CEQA Updates

Keeping You Up-to-Date on the California Environmental Quality Act

Posts Tagged ‘Remand’


Second District Court of Appeal Upholds Decertification of Portion of Contested EIR on Remand

Thursday, February 8th, 2018

In Center for Biological Diversity v. California Dept. of Fish & Wildlife (2017) 17 Cal. App. 5th 1245, the Second District Court of Appeal addressed a challenge to the postremand judgment involving the Newhall Ranch Project issued by the trial court in response to Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204 and Center for Biological Diversity v. Department of Fish and Wildlife (2016) 1 Cal.App.5th 452.  Following the terms of the remand, the trial court entered judgment in favor of the plaintiffs on two issues: the analysis of greenhouse gas emission and stickleback impacts. Judgment was rendered in favor of the California Department of Fish & Wildlife (department) and the developer as to all other issues.

The judgment further ordered that a peremptory writ of mandate be issued directing the department to decertify the portions of the EIR that address the significance of the project’s greenhouse gas emissions, and the validity of the stickleback mitigation measures. The judgment stated: “Consistent with the Supreme Court’s opinion, all remaining portions of the EIR comply with CEQA.” Accordingly, the writ directed the department to void certification of portions of the EIR that address the department’s determination regarding the significance of the project’s greenhouse gas emissions and the stickleback mitigation measures.

The judgment and writ also enjoined all project activity including construction until the EIR was compliant with law. Further, the department also was ordered to “suspend” two project approvals that related directly to the EIR’s determinations regarding the significance of the project’s greenhouse gas emissions and stickleback mitigation measures, but four other approvals were left in place because no action was needed as to them “unless compliance with the Writ changes or affects” them.

Plaintiffs appealed from the trial court’s judgment on remand, arguing that the trial court’s decision to decertify only a portion of the EIR and leave some of the project approvals in place violated CEQA. The court rejected plaintiffs’ challenges to the postremand judgment.

First, the court explained that Public Resources Code section 21168.9, subdivision (a) clearly allows a court to order partial decertification of an EIR following a trial, hearing, or remand. The section applies when a court finds that “any determination, finding, or decision of a public agency” is noncompliant. (Pub. Resources Code § 21168.9, subd. (a).) After making such a finding, “the court must enter an order, in the form of a peremptory writ of mandate, containing one or more of three specified mandates. (Pub. Resources Code § 21168.9, subds. (a) & (b).) One of those three mandates is voiding the agency determination “in whole or in part.” (Pub. Resources Code § 21168.9, subd. (a)(1).) When a court voids an agency determination “in part,” it must make severance findings pursuant to Public Resources Code section 21168.9, subdivision (b), to determine whether the voided portions are severable, and whether the remainder will be in full compliance with CEQA. In reaching its holding, the court distinguished LandValue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675 and Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 on the basis that in those cases the courts did not make the severance findings required under Public Resources Code section 21168.9, subdivision (b).

Second, the court rejected plaintiffs’ argument that it was improper for the trial court to leave some project approvals in place. The court explained that under Public Resources Code section 21168.9, subdivision (b), the court is required to order “only those mandates which are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division.” Thus, if the court finds that it will not prejudice full compliance with CEQA to leave some project approvals in place, it must leave them unaffected.

Finally, the court reviewed the severability findings made by the trial court to confirm whether the court properly exercised its authority. Applying the abuse of discretion standard, the court concluded the trail court’s severability findings satisfied Public Resources Code section 21168.9, subdivision (b).

Key Point:

When examining inadequate portions of an EIR, Public Resources Code section 21168.9, subdivision (b) allows courts to determine whether the inadequate and voidable portions are severable, and whether the remainder will be in full compliance with CEQA.