Third District Court of Appeal Upholds County’s General Plan Update “Tiered” Environmental Impact Report

February 20th, 2013

By: Thomas Law Group



In an unpublished decision, Sierra Club v. County of Tehama (2012) 2012 Cal.App.Unpub.Lexis 8813, the Third District Court of Appeal issued a decision upholding the trial court’s denial of Sierra Club’s petition for a writ of mandate against the County of Tehama (County).  Sierra Club alleged that the Environmental Impact Report (EIR) prepared for the County’s General Plan Update (GPU) violated the California Environmental Quality Act (CEQA) in several respects.  Specifically, Sierra Club asserted that the EIR failed to fulfill its informational purpose, misrepresented greenhouse gas emissions, failed to adopt feasible mitigation measures for several impacts,  failed to include an adequate alternatives analysis, and made findings unsupported by substantial evidence.

The court began its inquiry by considering whether the GPU EIR was a program EIR, as claimed by the County, or a first tier project EIR.  Citing CEQA Guidelines, section 15378, the court concluded that a general plan is by definition a “project” and, therefore, should have been called a first tier project EIR, rather than a program EIR.  The court, however, noted that in this instance the County’s treatment of the EIR as a program EIR instead of a first tier project EIR was a distinction without a difference as both types of EIRs allow deferral of certain analysis.

Turning to the substantive claims, the court concluded that Sierra Club forfeited its argument that the County’s CEQA findings were not supported by substantial evidence because Sierra Club’s 1.5-page argument failed to include any citations to the administrative record and did not provide evidence favorable to the County and show why it was lacking. Similarly, the court rejected Sierra Club’s argument that no substantial evidence supported the conclusion that the County would have an annual average growth of 2.2 percent because Sierra Club presented a one-sided argument ignoring evidence in the record favoring the County’s conclusion.

Next, the court rejected Sierra Club’s claim that CEQA required the County to analyze potential impacts of the theoretical build-out scenario.  Pointing to CEQA Guidelines, section 15145, the court stated the County complied with the rule that “[i]f, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact.”

The court then addressed Sierra Club’s challenges to the analyses of air quality and greenhouse gas (GHG) emissions, agricultural, water supply, traffic and circulation, and land use impacts.  With respect to each claim and in consideration of the fact that the GPU EIR was a first tier project EIR, the court held that Sierra Club failed to show reversible error.  For instance, in regard to the CEQA findings on GHG emissions, Sierra Club argued that the County improperly developed its GHG analysis around the theory that the science of GHG is ever-changing and, as a result, the law on GHG emissions is a “moving target.” The court rejected this argument because the uncertainty in the County’s GPU EIR was the result of the project’s tiered nature, not because the law is a “moving target.”

Finally, the court addressed Sierra Club’s argument that the County’s GPU EIR violated CEQA by failing to include an adequate analysis of alternatives.  In rejecting this argument, the court stated that an EIR does not need to consider every conceivable alternative to a project. The court held that the County’s consideration of five alternatives constituted a reasonable range of potentially feasible alternatives and satisfied CEQA’s goal to foster informed decision making and public participation.

Written By: Tina Thomas, Christopher Butcher and Andrea Lutge (law clerk)
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