THIRD APPELLATE DISTRICT FINDS EIR FOR INVASIVE SPECIES EFFORTS INADEQUATE

December 9th, 2015

By: Thomas Law Group



In an unpublished opinion, North Coast Rivers Alliance v. Kawamura, 2015 Cal. App. Unpub. LEXIS 8760, the Third Appellate District reversed the trial court’s rulings and found a programmatic EIR certified by California Department of Food and Agriculture (CDFA) for a seven-year program to deal with the invasive light brown apple moth (LBAM) to be inadequate. LBAMs, which are native to Australia, can negatively affect a variety of plants and trees because the moths roll up leaves to make nests and their larvae feed on the leaves and buds.

While the focus of the EIR was to eradicate the LBAM, just prior to certifying the EIR in March 2010, CDFA approved a program to control the moths instead based on new information that eradication was no longer attainable. CDFA contended that the change reduced the scope of the program. The appellants argued that the change expanded the scope of the program because pest control would have to continue indefinitely, whereas eradication would have taken place within the seven-year period studied in the EIR.

The court did not discuss in detail the appellants’ argument that the last-minute change from eradication to control violated CEQA due to a lack of accurate project description and improper “segmenting.” The court held that the EIR violated CEQA even without the last-minute change, and the last-minute change did not save CDFA from reversal because there was no assurance that a CEQA-compliant EIR would be prepared for control efforts taking place beyond the seven-year period studied in this EIR. While CDFA stipulated that environmental review would take place, the Court noted that this did not guarantee that an EIR would be prepared.

The court held that the EIR violated CEQA by failing to analyze a control program as a reasonable alternative to an eradication program. Instead, the alternatives focused on different methods that could be used in various combinations to eradicate the LBAMs. The court found this improper given the program’s objective was to protect California’s native plants and agricultural crops from damage, not merely to eradicate LBAMs. The court found this to prejudicial as it “infected the entire EIR” by causing CDFA to reject anything that would not achieve complete eradication of the LBAMs. Accordingly, the court held that the EIR was fatally defective.

Next, the court rejected the appellants’ claims that two assumptions made by CDFA were not supported by substantial evidence; specifically, that doing nothing would cause: (1) a dramatic increase in private pesticide; and (2) crop damage and reduced agricultural revenues. The court disagreed, finding that these assumptions were supported by substantial evidence. The court also rejected the appellants’ claims that the EIR failed to adequately analyze the project impacts.

Finally, the court found it unnecessary to address the appellants’ contention that the EIR’s cumulative impacts analysis violated CEQA, citing Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 101-102 for the proposition that section 21005 of the California Public Resources Code does not require the court to address additional alleged defects that may be addressed in a completely different and more comprehensive manner upon further CEQA review following remand. In this case, a new cumulative impacts discussion will be prepared when CDFA undertakes further environmental review to analyze the control program as an alternative.

Meanwhile, despite efforts to quarantine the LBAMs during the environmental review process, they have continued to spread throughout California, increasing from 10,000 to more than 71,000 in two years.