Third District Holds that Public Concerns over Alternate Evacuation Routes during Replacement of Rural Bridge are not Substantial Evidence of an Environmental Impact.

July 23rd, 2021

By: Sam Bacal-Graves

In Newtown Preservation Society v. County of El Dorado (2021) 65 Cal.App.5th 771, the Third District Court of Appeal considered whether impacts to wildfire safety and emergency evacuation routes required preparation of an EIR. The partially published opinion, authored by Justice Robie, held that the adopted MND was sufficient, as CEQA requires an analysis of the impacts of a project on the environment, not impacts of the environment on a project or its residents or users. The opinion found that public comments by the non-expert residents were not substantial evidence of an environmental impact, as they lacked factual foundation and failed to establish that alternate evacuation routes were insufficient. In the unpublished portion, which is not addressed further in this summary, the Court also held that mitigation had not been impermissibly deferred and declined to consider Petitioners’ additional arguments raised for the first time on appeal.

The project at issue proposed to demolish and replace an existing bridge in rural El Dorado County (Project). El Dorado County adopted a mitigated negative declaration (MND) and approved the Project. Newtown Preservation Society (Petitioners) challenged the approval, relying on statements from residents alleging that the Project failed to adequately address impacts on public safety and emergency evacuations due to the bridge’s closure. The MND stated that a temporary evacuation route would be constructed if County agencies found it necessary; however, the County clarified in a response to the comments that the temporary route might not be constructed if the Project was undertaken outside of the primary fire season. If the temporary route was not constructed, then the MND identified several alternative roads that could be used for alternative evacuation routes. Nonetheless, Petitioners filed suit alleging that an EIR was required to evaluate impacts on public safety and evacuation routes. The trial court denied the petition, and Petitioners appealed.

The Court of Appeal initially noted that Petitioners had forfeited a set of arguments they briefed without proper headings, and another that they raised for the first time in a reply brief on appeal. The Court then held that Petitioners failed to carry their burden under the fair argument standard. As explained below, the Court first found that Petitioners’ framing of the fair argument standard was erroneous. It then found that Petitioners failed to provide substantial evidence to support a fair argument that the Project may have a significant impact on the environment or exacerbate existing environmental hazards.

Existing Environmental Hazards

The Court observed that Petitioners had mischaracterized the fair argument standard, citing California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369 (CBIA). In CBIA, the Supreme Court considered under what circumstances, if any, CEQA requires an analysis of how existing environmental conditions would impact future residents or users of a proposed project. The Court held that no such analysis was required, except where specified by statute, unless the project risked exacerbating preexisting hazards or conditions. The case took the rare step of invalidating a portion of the CEQA Guidelines that implied that CEQA required an analysis of the effect of a project drawing and exposing people to an existing environmental hazard.

Here, the Court rejected Petitioners’ framing of the fair argument test. “The question is not whether substantial evidence supports a fair argument that the proposed project will have significant impacts on resident safety and emergency evacuation. …the question is whether the project may have a significant effect on the environment.” As such, the Court examined whether Petitioners had presented substantial evidence of a fair argument that the Project would do so.

Lay Testimony and Substantial Evidence

The Court reiterated that, under Joshua Tree Downtown Business Alliance v. County of San Bernardino (2016) 1 Cal.App.5th 677, 690-692, public complaints, fears, and suspicions of a project’s impacts do not constitute substantial evidence of such impacts, nor does public testimony on the interpretation of technical or scientific information requiring expert evaluation.

Here, the Court found that the residents’ comments and concerns were unsupported by factual foundation, and many addressed tangential or irrelevant matters, such as how wildfire might impact residents in the area, rather than environmental impacts of the Project. Though two of the commenters had wildfire expertise as firefighters, the court found they were not experts with respect to evacuation procedures and routes. Additionally, Petitioners failed to explain why the numerous alternative evacuation routes, which were approved by the Emergency Services Office and County Fire, would be inadequate. The Court acknowledged case law cited by Petitioners in which lay testimony was found to be substantial evidence. (Arviv Enterprises, Inc. v. South Valley Area Planning Com. (2002) 101 Cal.App.4th 1333; Oro Fino Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872; Protect Niles v. City of Fremont (2018) 25 Cal.App.5th 1129.) However, the Court held that those cases all involved personal observations and experiences directly related to and informing the impact of those projects. The assertion that the bridge was the only viable evacuation route in this case was not established by comments, nor did Petitioners cite evidence in the record to support this. Because Petitioners failed to identify any substantial evidence to support a fair argument that the Project may have a significant impact on the environment or exacerbate existing environmental hazards, the Court denied the appeal.

Key Point:

CEQA requires an evaluation of the impacts of a project on the environment. Existing environmental issues are irrelevant to CEQA’s evaluation of a project’s impact on the environment unless exacerbated by the project. Non-expert public comments lacking a factual foundation and not directly related to and informing on the impact of a project are not substantial evidence.