Third District Finds Public Resources Code Section 21168.9 Does Not Allow Courts to Order Preparation of Partial EIRs

November 17th, 2021

By: Dustin Peterson

In Farmland Protection Alliance v. County of Yolo (Nov. 3, 2021, No. C087688) ___Cal.App.5th___ [2021 Cal. App. LEXIS 930], the Third District Court of Appeal held that CEQA does not permit an agency to split a project’s environmental review across two types of environmental review documents. In the published portion of the opinion, the Court held that the trial court acted in disregard of CEQA’s mandate that a full environmental impact report (EIR) be prepared when a fair argument demonstrates that a proposed project may have a significant effect on the environment. In the unpublished portion, which is not addressed further in this summary, the Court upheld trial court rulings on the merits of the case regarding the project’s consistency with the County Code, the Williamson Act, and potential impacts to biological resources.

The project at issue concerned a proposal to develop and operate a bed and breakfast and agritourism business on a rural property northwest of the City of Winters in Yolo County (Project). In 2016, after filing a mitigated negative declaration (MND) adopting mitigation for the project’s potentially significant impacts to special-status species, the Yolo County Board of Supervisors (County) adopted the MND and granted the Project a conditional use permit. Farmland Protection Alliance and Yolo County Farm Bureau (Plaintiffs) filed suit challenging the approvals. 

At trial, Plaintiffs prevailed on their CEQA claim related to impacts on the species, and the trial court granted the petition in part, finding substantial evidence supported a fair argument the Project could have significant impacts on the special-status species. The trial court ordered the County to prepare an EIR to address only the Project’s impacts to the species, and allowed the Board’s approval and related mitigation measures to remain in effect while the EIR was prepared.

On appeal, Plaintiffs asserted the trial court erred in ordering preparation of a limited EIR addressing only part of the Project’s potential impacts. The County and Real Parties in Interest argued that it was within the trial court’s broad discretion under Public Resources Code section 21168.9 to craft appropriate remedies following a finding that certain parts of an MND do not comply with CEQA, and that nothing precludes a court from imposing lesser remedies to an EIR. The Court agreed with Plaintiffs noting that CEQA requires a full EIR where there is substantial evidence that any aspect of the project may cause significant environmental impacts, and section 21168.9 is intended to facilitate compliance with the law, not provide a means to circumvent it. The Court found that the MND and EIR tiers of CEQA’s environmental review process are mutually exclusive, and nothing in section 21168.9 allows a trial court to split the analysis of a project’s environmental impacts across two types of environmental review documents. Because there was a fair argument of a significant effect on at least one special-status species, the trial court erred in not ordering the preparation of a full EIR.

Key Point:

Trial courts cannot fashion remedies that disregard CEQA’s requirement to prepare a full EIR when substantial evidence supports a fair argument that a project will have a significant effect on the environment.

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