>Environmental Impact Reports (EIRs) are informational documents prepared by a lead agency that describe and analyze the significant environmental effects of discretionary actions undertaken or approved by the agency. (Pub. Resources Code, §§ 21002.1, 21061.) EIRs also evaluate mitigation measures and alternatives that reduce the significant environmental impacts of a proposed project, or, in some instances, also result in an environmental impact. (See Pub. Resources Code, §§ 21002.1, 21061.) To ensure CEQA’s objectives are met, an EIR is required when a project may have a significant environmental impact, unless a statutory exemption applies. (See Pub. Resources Code, §§ 21080(d), 21151(a); Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1000; CEQA Guidelines, §§ 15260-15285.)
EIRs inform the public of the environmental consequences resulting from an agency’s decision before it is made – satisfying CEQA’s goals of protecting, rehabilitating, and enhancing the environmental quality of the state. (Pub. Resources Code, § 21001(a); CEQA Guidelines, § 15002(a).) EIRs also promote agency accountability, foster informational disclosure, allow the public and agencies to weigh competing interests, and advance informed self-government. (See Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 511-512 (Friant Ranch); Cleveland Nat’l Forest Found. v. San Diego Ass’n of Gov’ts (2017) 3 Cal.5th 497, 511 (Cleveland).) Accordingly, they are both an environmental “alarm bell” and the “heart” of CEQA. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392 (Laurel Heights I).)
Types of EIRs & Required Content
A project EIR analyzes the environmental changes associated with a specific development project’s planning, construction, and operation. (CEQA Guidelines, §§ 15161, 15378.) Project EIRs may also address environmental impacts arising from regulatory changes. (See, e.g., POET, LLC v. State Air Resources Bd. (2017) 12 Cal.App.5th 52; King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814 (King & Gardiner Farms).) Other EIR types include staged, program, and master EIRs – broad, high-level planning documents that provide information on multi-staged projects and bind future developments to specific standards. (Pub. Resources Code, § 21157; CEQA Guidelines, §§ 15167-15169; Center for Biological Diversity v. Department of Conservation, etc. (2019) 36 Cal.App.5th 210, 229-230 (CBD).) Following the certification of high-level EIRs, subsequently narrower and ultimately project level EIRs may be prepared that incorporate the previously adopted standards in a process known as “tiering.” (CEQA Guidelines, § 15385.) The level of specificity of an EIR is determined by the nature of the project and the “rule of reason,” rather than any semantic label assigned to the EIR. (Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1048-1051; Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 Cal. App. 4th 729, 741-742.)
Regardless of its type, all EIRs must analyze the proposal’s “significant” environmental effects, which are defined as “substantial” or “potentially substantial” adverse changes to the environment. (Pub. Resources Code, § 21068.) While CEQA does not require a specific format, EIRs must include detail sufficient to enable those who did not participate in the preparation process to understand and meaningfully consider the issues raised by the proposed project. (See Laurel Heights I, supra, 47 Cal.3d at p. 405.)
EIRs consider a variety of environmental topics, including, but not limited to:
- Aesthetics
- Air Quality
- Agriculture and Forestry Resources
- Biological Resources
- Cultural & Tribal Cultural Resources
- Energy
- Geology and Soils
- Greenhouse Gas Emissions
- Hazards and Hazardous Materials
- Hydrology and Water Quality
- Land Use
- Mineral Resources
- Noise
- Population and Housing
- Public Services
- Recreation
- Transportation
- Utilities and Service Systems
- Wildfire
(See CEQA Guidelines, Appendix G.)
Preparation and Procedure
When an agency considers approving an activity, it typically engages in three stages of decision making. (Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1185-1186, fn. 3; Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 380-381 (Muzzy).) First, the agency preliminarily determines whether the activity constitutes a “project” subject to CEQA. (Muzzy, supra, 41 Cal.4th at p. 380.) Second, the agency determines whether the project is exempt from CEQA. (Ibid.) If CEQA applies and no exemptions are identified, the agency then proceeds to preparing an initial study, a preliminary environmental review document that helps the agency determine if an EIR is required instead of a negative declaration. (Id. at pp. 380-381.) Alternatively, the lead agency may determine that an EIR will clearly be required and may proceed directly with preparing an EIR. (CEQA Guidelines, § 15060.) For more information, please refer to our blog’s Initial Studies, Negative Declarations, and Mitigated Negative Declarations overviews.
Once the agency has elected to undergo the EIR process, it prepares a Notice of Preparation (NOP) to solicit guidance from responsible agencies, trustee agencies, and the Office of Planning and Research regarding the scope and content of the EIR. (Pub. Resources Code, § 21080.4; CEQA Guidelines, §§ 15082, 15375.) Responses must be provided to the lead agency within 30 days of receiving the NOP. (Pub. Resources Code, § 21080.4; CEQA Guidelines, § 15082.) Then, agency staff – or the project applicant, consultant, or contracted drafter – prepares the draft EIR (DEIR). (CEQA Guidelines, § 15084.) The DEIR addresses and analyzes the project’s environmental impacts, mitigation measures, and project alternatives.
Once the DEIR is complete, the lead agency must file a Notice of Competition (NOC) with the Office of Planning and Research, provide a public notice of availability of the DEIR, circulate the DEIR, and solicit and collect comments on the EIR for at least 30 days (or at least 45 days, if the DEIR is submitted to the Office of Planning and Research’s State Clearinghouse for review by state agencies). (CEQA Guidelines, §§ 15085-15087; 15105.) The agency’s responses to these comments and any necessary edits to the DEIR are compiled in the final EIR (FEIR). (CEQA Guidelines, §§15088-15089, 15132.) The agency must also prepare findings that identify and explain the agency’s conclusions regarding significance determinations, and a mitigation monitoring and reporting program that includes and tracks compliance with the project’s proposed mitigation measures. (Pub. Resources Code § 21081.6(a)(1); CEQA Guidelines, § 15091.) Where significant and unavoidable impacts remain, a statement of overriding considerations must be prepared that provides the agency’s rationale for permitting the project to proceed despite the impacts. (CEQA Guidelines, § 15093.) Once the agency certifies the FEIR and approves the project, it files a Notice of Determination (NOD), beginning a 30-day statute of limitations to file suit challenging the approval (this is extended to 180 days if the NOD is defective or not properly posted). (Pub. Resources Code § 21167(c)-(d); Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles (2020) 47 Cal.App.5th 368, 378-379.)
Legal Sufficiency
If litigation is filed regarding an EIR, it generally challenges whether an agency has committed a prejudicial abuse of discretion by failing to proceeded in the manner required by law and/or by certifying an EIR that is unsupported by substantial evidence. (Pub. Resources Code §§ 21168, 21168.5; Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1108-1109.)
When assessing the legal sufficiency of an EIR, the reviewing court focuses on the EIR’s adequacy, completeness, and whether it demonstrates a good faith effort at full disclosure – not perfection. (Friant Ranch, supra, 6 Cal.5th at p. 522; South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321, 334.) An EIR’s content is presumed adequate and a challenger bears the burden of proving otherwise. (CBD, supra, 36 Cal. App. 5th 210, 243.) The ultimate inquiries are whether the EIR includes enough detail “to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project” (Friant Ranch, supra, 6 Cal.5th at p. 516) and whether the EIR’s ultimate conclusions are supported by substantial evidence (Laurel Heights, supra, 47 Cal.3d at p. 407). In answering those questions, reviewing courts consider the EIR as a whole. (Laurel Heights, supra, 47 Cal.3d at p. 408 [courts should not “review each item of evidence in the record with such exactitude that the court loses sight of the rule that the evidence must be considered as a whole.”].)
- Adequacy, Completeness, & Good Faith Effort at Full Disclosure
To proceed in the manner required by law, an EIR must provide adequate discussion to permit the reader to understand and consider the issues raised by the proposed project. An EIR need not include all information available on a subject; it must include sufficient, relevant information and analysis to allow the public to “discern the analytic route traveled from evidence to action” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1397-1398 (Irritated Residents) [while the biological resources section of an EIR was brief, its level of detail enabled the public to understand the agency’s analytic reasoning]) and engage in a “good faith effort at full disclosure” (CEQA Guidelines, § 15151).
However, courts have held that simply providing bare conclusions and raw data are not adequate. (See Santiago Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 831.) For example, in Friant Ranch, a project EIR’s discussion of health impacts was deemed inadequate because it failed to connect air pollutant data to health consequences. (Friant Ranch, supra, 6 Cal.5th at pp 519-522.) Similarly, in County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 954 (County of Amador), a project EIR presented raw data identifying the surface elevation of a series of lakes to communicate how the project’s water withdrawals would impact the environment. (Id. at pp. 954-955.) The Third District Court of Appeal rejected this approach, stating that while a reader could “cobbl[e] together” the raw data to understand the project’s impacts on the lakes, “such an effort should not be necessary.” (Id. at p. 955.)
Further, presenting technically complete but disorganized information could cause an EIR to fail as an informational document. (See Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442 (Vineyard).) The Supreme Court in Vineyard held that a reader cannot be reasonably expected to ferret out unreferenced discussions, interpret unexplained figures without assistance, and spontaneously incorporate them into an EIR’s discussion. (Ibid.)
- Substantial Evidence
An EIR’s ultimate conclusions must be supported by substantial evidence. (See Laurel Heights I, supra, 47 Cal.3d at p. 407.) Substantial evidence under CEQA is defined as facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts constituting “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (CEQA Guidelines, § 15384(a); Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1198.) Accordingly, “a court’s proper role in reviewing a challenged EIR is not to determine whether the EIR’s ultimate conclusions are correct but only whether they are supported by substantial evidence.” (Laurel Heights I, supra, 47 Cal.3d at p. 407.)
Disagreements among experts do not invalidate the conclusions of an EIR or the substantiality of the evidence presented. (See Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918, 940.) When experts dispute the conclusions reached by other experts whose studies were used in drafting the EIR, the EIR need only summarize the main points of disagreement and explain the agency’s reasons for accepting one set of judgments instead of another. (CEQA Guidelines, § 15151; Irritated Residents, supra, 104 Cal.App.4th at p. 1398.)
Prejudicial/Reversible and Excusable Errors
As noted above, while perfection is not required to create a legally sufficient EIR, agencies must satisfy CEQA’s informational and procedural requirements. Accordingly, there are some errors that constitute a prejudicial abuse of discretion (and thus require reversal), and others that are excusable.
- Errors Precluding Informed Decisionmaking and Public Participation Warrant Reversal
A prejudicial abuse of discretion arises when an EIR’s deficiencies preclude informed decision making and public participation. (Pub. Resource Code, § 21168.5; see Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1220-1221 (Bakersfield Citizens).) Informed decisionmaking and public participation are precluded when (1) an agency fails to follow CEQA’s procedures while adopting the EIR, and (2) when factual conclusions in the EIR are unsupported by substantial evidence. (Pub. Resource Code, § 21168.5; Friant Ranch, supra, 6 Cal.5th at p. 512.) A prejudicial abuse of discretion may be found regardless of whether the same outcome would have occurred if the agency fully complied with CEQA. (Pub. Resource Code, § 21005(a); see Rural Landowners Ass’n v. City Council (1983) 143 Cal.App.3d 1013, 1022 (Rural Landowners).)
EIRs adopted without adhering to CEQA’s procedures are inadequate because they run afoul of CEQA’s legislative intent to protect informed decisionmaking and public participation. (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1220; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 734.) For example, in Rural Landowners, an agency failed to forward a DEIR to Office of Planning and Research for review prior to project approval. The Rural Landowners court held that this failure constituted a prejudicial abuse of discretion, explaining that it was not possible to know what impact the missing expert agency comments may have had on the public or officials. (Rural Landowners, supra, 143 Cal.App.3d at pp. 1021-1023; see also Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813, 823 [failure to circulate a revised EIR to other public agencies to permit them to comment rendered the document procedurally inadequate].)
Reliance on factual conclusions unsupported by substantial evidence may also give rise to a finding of a prejudicial abuse of discretion. When the foundational facts of an EIR are missing or inaccurate, the public and decisionmakers are unable to accurately analyze mitigation measures or conclusions based on that faulty foundation. For example, in San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713 (San Joaquin Raptor), the court, applying the substantial evidence standard of review, held that an EIR’s environmental setting discussion failed to directly address that the proposed project would be located adjacent to a wildlife preserve or that the project site may contain wetlands. (San Joaquin Raptor, supra, 27 Cal.App.4th at pp. 722-729.) This rendered the environmental setting incomplete and contributed to the entire document’s failure from an informational standpoint. (Id. at p. 729.) The San Joaquin Raptor court explained that it prevented the accurate identification of environmental impacts and precluded a determination that substantial evidence supported the conclusion that environmental impacts were adequately mitigated. (Ibid.) And, in Golden Door Properties LLC. v. County of San Diego (2019) 50 Cal.App.5th 467, an agency failed to include an alternative focusing on reducing vehicle miles traveled (VMTs) in the EIR for a countywide Climate Action Plan. This was a prejudicial error precluding informed public participation and informed decision making under the substantial evidence standard because the purpose of a Climate Action Plan is to address the state’s greenhouse gas emissions reduction goals by reducing VMTs. (Id. at p. 548.)
- Minor Errors May be Excusable
Minor instances of noncompliance with CEQA’s requirements are not per se reversible errors. (See Pub. Resources Code § 21005(b); Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 488-491 [while an EIR’s analysis of alternatives was “far from perfect,” the errors were not prejudicial because they did not preclude informed decision making or informed public participation]; Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949, 959-960 [failure to provide required notice to responsible agency was not prejudicial where the “information gathering and presentation mechanisms of CEQA were not subverted or even compromised”]; Rominger v. County of Colusa (2014) 229 Cal.App.4th 690, 705-710 [failure to comply with 30-day notice period not prejudicial], disapproved of on other grounds by Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1199, fn. 11; Mount Shasta Bioregional Ecology Ctr. v. County of Siskiyou (2012) 210 Cal.App.4th 184, 226 [although a project’s overall water usage was arguably understated in its EIR, informed decisionmaking and public participation were not impinged because a significant impact would not result regardless of if the document included the actual amount of water usage].)
Insubstantial or technical omissions are not grounds for relief, as long as the errors do not deprive the public and decision makers of substantial relevant information. (See Neighbors for Smart Rail v. Exposition Metro Line Constr. Auth. (2013) 57 Cal.4th 439, 463-465 [although an agency failed to analyze a project’s effects on baseline traffic congestion and air quality conditions, the errors did not constitute deprive the public and decisionmakers of critical project information]; Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 926-927 [agency’s failure to include a development agreement in a project description was not prejudicial because the agreement was duly noticed and considered at public hearings on the project and EIR prior to approval].)
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