EIR Meets CEQA'S Environmental Impacts, Project Alternatives And Mitigation Measures Requirements

San Benito County (County) certified an environmental impact report (EIR) for a solar power development project. Save Panoche Valley, Santa Clara Valley Audubon Society, and Sierra Club (Valley) challenged the certification by claiming that the County violated the California Environmental Quality Act (CEQA).

Valley claimed that (1) there was a feasible, environmentally superior alternative to the project, (2) the EIR's impact analysis was deficient, and (3) the County's findings were unsupported by the evidence.

First, Valley claimed that the Westlands Competitive Renewable Energy Zone (Westlands CREZ) was a feasible, proximate alternative. An agency may not approve a project unless alternatives are infeasible. The County found the Westlands CREZ to be infeasible because (1) the project could not be completed in a reasonable period of time, (2) it was located in two other counties, (3) building the project at Westlands CREZ would not further the public policy goal of providing jobs and economic benefit to the County, and (4) the County had evidence that the majority of the land was owned by a private investment group. The fact that the alternative lied outside the County's boundaries did not automatically render the project infeasible. However, that fact, combined with the fact that the land was owned by a private holding company, was sufficient to find that the alternative was infeasible.

Next, the court upheld the EIR's biological impact analysis against challenges on the following bases:

CEQA does not require an agency to exhaust all tests to evaluate impacts.

Deferral of mitigation measures are sufficient if agency commits to the mitigation and specifies

particulars.

A challenge under CEQA requires the challenger to attack the evidence relied upon by the agency

in making its findings.

The lands proposed for mitigation were suitable.

Mitigation measures made unmitigated impacts insignificant.

Valley also challenged the EIR's agricultural analyses because the County would not create additional agricultural lands to compensate those converted to nonagricultural uses by the project. CEQA does not mandate that new habitats be created. Instead, CEQA mitigation includes avoiding impacts by not taking action, minimizing impacts by limiting action, rectifying the impact by repair or restoration, reducing impact over time by preservation and maintenance over the life of the action, or compensating for the impact by providing substitute resources. Mitigation measures are not required to "net out the impact of a proposed project," but are required "to reduce the impact to insignificant levels." The court found that substantial evidence supported the County's determination that the mitigation measures satisfied CEQA.

Lastly, Valley claimed that the County's findings were not supported by the evidence. Before approving an EIR, an agency must make written findings for each of the significant effects stated in the EIR. The County's written findings were that (1) changes or alterations incorporated into the project would avoid or substantially lessen the significant environmental effects identified in the EIR, and (2) that specific economic, legal, social, technological, and other considerations make infeasible other alternatives. Valley argued that these findings were not supported by the evidence. The court disagreed based on the arguments above.

Save Panoche Valley v. San Benito County (PV2 Energy, LLC) (2013) ___Cal.Rptr.3d___ [2013 WL 3224027].