SIERRA CLUB v. COUNTY OF FRESNO (FRIANT RANCH)Amicus Curiae Brief of Association of Irritated Residents, Medical Advocates for Healthy Air, and Coalition for Clean AirCal.May 12, 2015é i § PE. Ey pet GUDDERAD OAT or AmigyCASE NO. 8219783 OUP TE ME GOUK CU 4¥ IN THE SUPREME COURT OF CALIFORNIA SIERRA CLUB, REVIVE THE SAN JOAQUIN,and LEAGUE OF WOMEN VOTERSOF FRESNO, Plaintiffs and Appellants Vv. ma mn RAR AEi COUNTY OF FRESNO Defendant and Respondent MAY 7% 2015 FRIANT RANCH, L.P. PilgssPelredive: 2 ligayy Real Party in Interest and Respondent After a Published Decision by the Court ofAppeal, filed May 27, 2014 Fifth Appellate District Case No. F066798 Appeal from the Superior Court of California, County ofFresno Case No. 110ECG00726 Honorable RosendoA.Peria,Jr. APPLICATION OF ASSOCIATION OF IRRITATED RESIDENTS, MEDICAL ADVOCATES FOR HEALTHYAIR AND COALITION FOR CLEAN AIR FOR LEAVE TO FILE AMICI CURIAE BRIEF AND AMICI CURIAE BRIEF Ty support of Appellants CHATTEN-BROWN & CARSTENS LLP Jan Chatten-Brown (Bar No. 50275) Douglas P. Carstens (Bar No. 193439) Amy C. Minteer (Bar No. 223832) 2200 Pacific Coast Highway, Suite 318 Hermosa Beach, CA 90254 Ph: 310-798-2400, Fax: 310-798-2402 Attorneys for Amicus Curiae Association ofIrritated Residents, Medical Advocates for Healthy Air and Coalition for Clean Air CASE NO. 8219783 IN THE SUPREME COURT OF CALIFORNIA SIERRA CLUB, REVIVE THE SAN JOAQUIN,and LEAGUE OF WOMEN VOTERSOF FRESNO, Plaintiffs and Appellants Vv. COUNTY OF FRESNO Defendant and Respondent FRIANT RANCH,LP. Real Party in Interest and Respondent After a Published Decision by the Court ofAppeal, filed May 27, 2014 Fifth Appellate District Case No. F066798 Appeal from the Superior Court of California, County ofFresno Case No. 110ECG00726 Honorable RosendoA.Peria,Jr. APPLICATION OF ASSOCIATION OF IRRITATED RESIDENTS, MEDICAL ADVOCATESFOR HEALTHYAIR AND COALITION FOR CLEANAIR FOR LEAVETO FILE AMICI CURIAE BRIEF AND AMICI CURIAE BRIEF CHATTEN-BROWN & CARSTENS LLP Jan Chatten-Brown (Bar No. 50275) Douglas P. Carstens (Bar No. 193439) AmyC. Minteer (Bar No. 223832) 2200 Pacific Coast Highway, Suite 318 Hermosa Beach, CA 90254 Ph: 310-798-2400, Fax: 310-798-2402 Attorneys for Amicus Curiae Association ofIrritated Residents, Medical Advocatesfor Healthy Air and Coalition for Clean Air APPLICATION OF ASSOCIATION OF IRRITATED RESIDENTS, MEDICAL ADVOCATESFOR HEALTHYAIR AND COALITION FOR CLEAN AIR FOR LEAVETO FILE AMICI CURIAE BRIEF TO THE HONORABLECHIEF JUSTICE TANI CANTIL-SAKAUYE AND HONORABLEASSOCIATEJUSTICES: Pursuant to Rule 8.520(f) of the California Rules of Court, Association of Irritated Residents, Medical Advocatesfor Healthy Air and Coalition for Clean Air respectfully request leaveto file an amici curiae briefin this appeal. The Applicants and Their Interests Interests ofAssociation ofIrritated Residents: AssociationofIrritated Residents (AIR) is a California non-profit corporation. AIR has membersresiding in Kern, Tulare, Kings, Fresno, and Stanislaus Counties. AIR's mission is to advocatefor clean air and environmental health in the San Joaquin Valley. AIR has a longstanding interest in the California Environmental Quality Act (CEQA)andlitigation underthatact. AIR is a steadfast supporter of maintaining the integrity of CEQAin the Legislature, and has beena petitioner in a numberofcases over the years. Interests ofMedical Advocatesfor Healthy Air: Medical Advocates for Healthy Air (MAHA)is a non-profit organization consisting of medical professionals living in the San Joaquin Valley who regularly treat patients suffering from respiratory ailments caused or greatly exacerbated by the unhealthy levels of air pollution in the area. MAHA’s missionis to advocate for the expeditious attainmentof state and federal health-based air quality standards in the San Joaquin Valley. Interests ofCoalition for Clean Air: Coalition for Clean Air (CCA)is a statewide nonprofit organization, with offices in Los Angeles and Sacramento, that has advocated for improvedair quality throughout California since 1971. CCAis the only statewide organization exclusively dedicated to improving air quality in California. CCA has participated in CEQAlitigation in several cases in the San Joaquin Valley regarding the need for a thorough assessmentofair quality impacts. Rules of Court, Rule 8.520(f) This amici brief was authored by Chatten-Brown & Carstens LLP and the costs for preparation and submission ofthe brief were paid solely by Chatten- Brown & Carstens LLP. Respectfully submitted, May6, 2015 CHATTEN-BROWN & CARSTENS, LLP “aha JatChatten-Brown Douglas Carstens Amy Minteer Attorneys for Amicus Curiae Association of Irritated Residents, Medical Advocates for Healthy Air and Coalition for Clean Air TABLE OF CONTENTS Page No. BRIEF OF AMICI CURIAE ASSOCIATION OF IRRITATED RESIDENTS, MEDICAL ADVOCATES FOR HEALTHY AIR AND COALITION FOR CLEANAIR u.ocecscccscscecscccssseceseeseceeeceeceecce. 1 Tntroduction oo... essescscscsssssscseseescsnsarsusststssssssasscassesssesesseeeseseececcecee. 1 I. The EIR’s Lack of Sufficient Information Regarding Health Impacts of Air Emissions Violates CEQAs Information Disclosure Requirements ..........c.c.csscssesscsssessescsessesssscssessesereccecececes 4 A. The Public Was Not Informed of the Magnitude ofPublic Health Impacts. 0... ccccecssscssssssssscevscseevscacscscecscerssesesseeeees 4 B. The Court of Appeal Correctly Applied the Independent JudgmentStandard of Review in Determining the Sufficiency of the EIR as an Informational Document......... 7 II. Public Resource Code Section 21083.1 Does Not Limit Analysis of a Project’s Impacts ........c..cccssscssssesssesssessessssesceveseesececes 9 IN. The Court of Appeal Correctly Determined Mitigation Measure 3.3.2 Is Vague, Lacks Enforceability and Is Improperly Deferred ........cccccecccsccssssesesssscsescsestscsescsssecvsssssesecececec. 9 A. The EIR Lacks Sufficient Detail Regarding the Effectiveness of Mitigation Measure 3.3.2. .....cccccccccccsscsseee 10 B. Mitigation Measure 3.3.2 is Not Fully Enforceable as Required By CEQA,.o..cccccccccscscssssssssscsssscsessecsssacateresesuseseses 1] C, The Ability to Substitute Mitigation Measures in the Future Results in Improperly Deferred Mitigation Dueto the Lack of PerformanceStandards.........cccccccscecese. 12 COMCIUSION oe. eeeeeeeccsssssesesescsssvevevavesassassusssssssssssstacssssaveseseseeeeeeseccssece. 14 CERTIFICATE OF WORD COUNT 00... c.csccssssesstssssessessesvescsessessveseeeveess 15 TABLE OF AUTHORITIES Page No. STATE CASES Bakersfield Citizensfor Local Controly. City ofBakersfield (2004) 124 Cal.App.4th 1184 occcsecccssssecsessesssessesecseesecees 8 Communitiesfor a Better Environmentv. City ofRichmond (2010) 184 Cal.App.4th 70, 95-96 ...cccccsesecsessssessssssssssssstesseesee. 13 Federation ofHillside and Canyon Association v. City ofLos Angeles (2000) 83 Cal.App.4th 1252 oooccccccccsccsssscsessestesestssssssssseeseeeeees 12 Lincoln Place Tenants Ass'n v. City ofLos Angeles (2005) 130 Cal.App.4th 1491 ooocccesscscsesssscsscsesssesseeeee. 3, 12 No Oil, Inc. v. City ofLos Angeles (1974) 13 Cal.3d 68 oo. ceccccccsssesssssssssssssesessessssesessssessssssstsscesereeesees 2 People v. County ofKern (1974) 39 CalApp.3d 830......c.cccccsccsscsscsestecestssesesssssecsesssescesecess 3, 6 POET, LLCv. California Air Resources Board (2013) 217 Cal.App.4th 681 ooo. cccicccccscessssesssseccssessestsscesseceese. 13 Sierra Club v. County ofFresno (2014) 226 Cal.App.4th 704 o...ceccccccsssscssessescsessssessecsesstessessesecees 1 Vedanta Society ofSo. California v. California Quartet, Ltd. (2000) 84 CalApp.4th 517 ooo.ccciccccccscssesessescssssessssssesseseseeesees 6 Vineyard Area Citizensfor Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4” 412 ooocecccsceccssesssssssessssecsssessssecssssstescssteeceseeesececee. 8 STATUES Public Resources Code § 21081.6, SUDA. ()......eccesssesssssssscssssesessssesscssecsessesssssesssersetestesescesescesces 1] § 21083Doeeceeceecessessecssecssessecsussecsssecansssssussstsssussesssssesssseersascstpesteesescececc. 9 il California Code of Regulations, CEQA Guidelines § 15093, subd. (a) ccccccscccccssssssssssscecesssssssessessssssssessstesestesesisteseteeeeseeecceeeccee 6 § 19126.2(0) ceccccceccccsscsssssssssessusesessssssssssessstsesssssasesesusessasteteseeseeeecceeeccc. 5 § 15126.4, subd. (a)(L)(B) ceecccccsscsssesssecsssssssesssssssessssssesssstetesseeeeeeeeeeccc 13 ili BRIEF OF AMICI CURIAE ASSOCIATION OF IRRITATED RESIDENTS, MEDICAL ADVOCATES FOR HEALTHYAIR AND COALITION FOR CLEAN AIR Amici Curiae Association ofIrritated Residents, Medical Advocates for Healthy Air and Coalition for Clean Air support the Court of Appeal’s decision in Sierra Club v. County ofFresno (2014) 226 Cal.App.4th 704. Introduction The Court ofAppeal’s decision in this matter highlights the importance of the missions ofAIR, MAHA and CCA by upholding CEQA’s requirementfor an environmental impact report (EIR) to analyze air quality related health impacts of projects andto include fully enforceable mitigation measures for significantair quality impacts. The San Joaquin Valley has some ofthe worstair pollution in the United States, and is designated an extreme nonattainmentarea for ozone and fine particulate matter, the worst possible designations. ! According to the California Air Resources Board, the San Joaquin Valley's exceedencesof federal particulate matter standards are estimated to cause hundreds of premature deaths per year. As a result of the dismalair quality, children in the San Joaquin Valley have high | http://www2.epa.gov/sanjoaquinvalley/epa-activities-cleaner-air 2 http://www.arb.ca.gov/research/aaqs/pm/pm.htm http://www.arb.ca.gov/research/health/pm-mort/pm-report 2010.pdf 1 incidence of asthmaand visit emergency rooms for asthma treatment much more frequently other California children.° The Friant Ranch Project (the “Project”) would produce air emissions greatly in excess ofthe thresholds set by the San Joaquin Valley Air Pollution Control District to protect the public health. The thresholds of significance are 15 tons per year for particulate matter 10 microns in diameter or smaller (PM10), 10 tons per year for reactive organic gases (ROG)and10 tons per year for of nitrogen oxides (NOx). The Project would emit 117.38 tons per year of PM10*, 109.52 tons per year ofROG and 102.19 tons per year NOx. AIR, MAHAand CCAaregreatly concerned about projects in the San Joaquin Valley that would worsen existing air quality conditions. | Amici rely on the EIRs prepared for proposed projects to obtain information regarding the impacts new projects would have onair quality and public health. Informed public participation is a central goal of the CEQA process. (No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 84, 86.) Asthe informationis presented in the Friant Ranch EIR,it is nearly impossible for Amici to ascertain the degree of health risks the Project could pose to its members and other membersof the public. Many members of Amici 3 http://www.csufresno.edu/chhs/cvhpi/documents/agr-web.pdf http://www.bakersfieldcalifornian.com/health/x860821917/V.alley-study-links-ER-visits- with-bad-air-days * The Project wouldalso produce significant levels of PM2.5. The draft EIR treated these as a subset of the PM10 emissions, andthe final EIR acknowledged the Project would also have a significant impact due to PM2.5 emissions. 2 organizationsbreathe the air that would be impacted by the Friant Ranch Project’s emissionson a daily basis. While the EIR reports impacts would occur,it fails to include any information regarding the magnitude ofthe public health impacts that would result from the Project’s substantial exceedence ofthresholds of significance. This does not allow for informed public participation in the environmental review process becauseit fails to inform the reviewing public of howit may be impacted by the Project. Additionally, this information was necessary to determine whetheranalternative could substantially lessen those health impacts. Further, the true environmentalcosts ofthis Project must be disclosed so that Amici’s members can hold their public officials accountable if they approved a project that would greatly impact the public’s health. (People v. County ofKern (1974) 39 Cal.App.3d 830, 842.) The Friant Ranch EIR does not provide the public with a means of determiningthe magnitude ofthe risk to public health their public officials have found acceptable. The EIRalso failed as an informational documentin its discussion of mitigation measures for the significant air emissions. The vaguenessofthe measures coupled with the lack ofclear enforceability makeit unclear whether any measures will be implemented. This violates CEQA. (Lincoln Place Tenants Ass'n v. City ofLos Angeles (2005) 130 Cal.App.4th 1491, 1508.) Additionally, the EIR improperly allows the County to substitute different measures, without setting performance standards for those substitute measures. Amici urge the Court to uphold the sound decision ofthe Court of Appeal. 3 1. The EIR’s Lackof Sufficient Information Regarding Health Impacts of Air Emissions Violates CEQA’s Information Disclosure Requirements. A. The Public Was Not Informed of the Magnitude of Public Health Impacts. The Court of Appeal correctly determined that “the EIR's discussion of air quality impacts failed to explain in adequate detail how theair pollutants emitted by this project would impactpublic health.” (Opinionp. 45.) The EIR failed to disclose health related air emission impacts of this Project becauseit included only a general discussion of adverse health impacts. It did not connectthe levels of PM10, ROG and NOx emissions that would be emitted by the Project with potential health impacts. The EIR also stated adverse health impacts depend upon the composition of the particulate matter, but “provided no information aboutthe composition ofthe particulate matter that was expected to be produced by the project.” (Opinion p. 46.) Based uponthe limited information provided in the EIR, impacted members of Amici and the general public are unable to discern whether the health impacts associated with emission levels seven to ten times above thresholds of significance would be catastrophic or minorfor the affected area. To make matters even more obscure, the EIR uses different units for its discussion of health impacts (parts per million) than for air emissions (tons/year), making it nearly impossible for the public to understand how increases in emissions impact the public health. Membersofthe public that will be impacted by these emissions should not be required to “infer” that the air quality and humanhealth will generally be worse. CEQA requires more than that. CEQA requires that the EIR discuss and disclose the impacts of this Project. (CEQA Guidelines§ 15126.2(a).) Real Party has focused on the use ofthe word “correlate” in the Court of Appeal’s decision to claim the decision requiresit to prepare a specific correlation analysis that it asserts is infeasible. Amici believe the important word from the decision is not “correlate”, but “magnitude.” The Court of Appeal does not require a specific type of analysis, but does require the EIR to discuss the potential magnitudeofthe health impact. (Opinion pp. 49-50.) This is important to give the impacted public an understandable concept ofhealth effects that wouldresult from this Project. Additionally, if there is no information regarding the potential magnitude of the air emission related health impacts, decision makers and the public are unable to comparethe project with alternatives that produce fewer emissions. How great of a reduction in the numberofunits or square footage of commercial uses would it take to substantially lessen the public health impacts associated with the air emissions? The EIR doesnotprovide the public with a wayto discern this answer. Further, information regarding the potential magnitude ofthe Project’s public health impacts is required for the County to adopt a statement of overriding considerations. [I]nformation about the magnitude ofthe human health impactsis relevant to the board ofsupervisors’ value judgment about whether other considerations override the adverse health impacts. In other words, a disclosure of respiratory health impacts that is limited to the better/worse dichotomy doesnot allow the decision makers to perform the required balancing of economic,legal, social, technological and otherbenefits of the project against the adverse impacts to humanhealth because they have not been informedofthe weight to place on the adverse impactside of the scales. (See Guidelines, § 15093, subd. (a) [statementof overriding considerations].) (Opinion p. 49, footnote 23.) “Projects which significantly affect the environment can go forward,butonly after the elected decision makers have their noses rubbed in those environmental effects, and vote to go forward anyway.” (Vedanta Society ofSo. California v. California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 530.) Moreover, this information is required for the public to holdits elected officials accountable for approving a project with significant impacts. (People v. County ofKern, supra, 39 Cal.App.3d at 842 [“Only by requiring the County to fully comply with theletter of the law...will the public be able to determine the environmental and economicvaluesoftheir elected and appointed officials, thus allowing for appropriate action come election day should a majority of the voters disagree.”].) The EIR mustdisclose whether the Board of Supervisors approved a project that would contribute to a major public health crisis or makelittle discernible difference in air quality related health impacts. / / B. The Court of Appeal Correctly Applied the Independent Judgment Standard of Review in Determining the Sufficiency of the EIR as an Informational Document. The Court of Appeal correctly applied de novo review to the EIR’s failure to address the magnitudeofthe Project’s air quality related public health impacts. This case does not involve disputes regarding the County’s conclusions or factual determinations. The facts regarding the air quality analysis are undisputed. The EIR relied upon the San Joaquin Valley Air Pollution Control District’s thresholds ofsignificance in determining the significance of the project’s air quality impacts. (Opinion p. 43.) The EIR found the project would exceed these thresholds of significance for PM10, ROG and NOxbysevento ten times. (Opinion p. 45.) The conclusion reached by the County that the Project would have significant air quality impacts because it would exceed thethresholds of significanceis not disputed. Additionally, all parties agreed the EIR only includes a general discussion of the health impacts that result from PM10, ROG and NOx emissions and does not discuss the magnitudeofthe health impactsthat could result from the Project’s emissions. (Opinion p. 48.) At issue in this decision is whether the EIR was required to discuss the magnitudeofthe health impacts that couldresult from the Project’s emissions. The Court ofAppeal found the EIR was inadequate because it failed to provide decision makers andthe public with information regarding the health impacts that could result from the substantial exceedanceofthresholds of significance by the project. (Opinion pp. 46-47, 50.) Thisis not a factual question 7 to which the Court owed the County deference. Whetherthis information is required by CEQAis a question of law andwasthuscorrectly reviewed de novo by the Court of Appeal underthe information disclosure standard of review. (Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4"" 412, 426-427.) Subsequentto the Court ofAppeal’s decision, Real Party has claimedit would notbe reasonably feasible to provide a correlation study ofthe Project’s air quality related health impacts. As discussed above, this is not what the Court of Appeal required. The Court simply required the EIR to discuss the magnitude of the Project’s public health impacts. Similar information was required by the Court of Appeal ten years ago in Bakersfield Citizensfor Local Control vy. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1219-1220. The City of Fresno requested the EIR discussthe Project’s public health impacts in its comments on the draft EIR, giving the County the opportunity to respond regarding the feasibility of providing such information. The Court of Appeal decision does not require any specific type of analysis. (Opinion pp. 49-50.) The EIR presented no reason to conclude it would be infeasible to provide some typeof information regarding the magnitude ofthe public health impacts. Thereis no support for a claim that including any type of discussion of the magnitudeof health impacts of the Project would beinfeasible. / / Il. Public Resource Code Section 21083.1 Does Not Limit Analysis of a Project’s Impacts. Real Party hasclaimed that Public Resources Codesection 21083.1 prevents the Court of Appeal from requiring the EIR to discussthe Project’s public health impacts. Contrary to this claim, Amici agree with Amicus South Coast Air Quality ManagementDistrict’s arguments regarding the applicability of Public Resources Codesection 21083.1. (SCAQMDAmicusBrief pp. 25-26 and footnote 19). Requiring an EIR to discuss a project’s humanhealth impactsis not imposing a new substantive requirement under CEQA. CEQArequiresall significant impacts of the project on the environment to be analyzed in an EIR and the Court ofAppeal’s decision is in keeping withthat requirement. Ill. The Court of Appeal Correctly Determined Mitigation Measure 3.3.2 Is Vague, Lacks Enforceability and Is Improperly Deferred. Mitigation Measure3.3.2 includes several separate provisions for addressing the significant air emissions that would be producedbythe Project, although provisions wouldnot mitigate the impacts to a less than significantlevel. Amici agree with the Court of Appeal’s conclusion that the EIR lacks sufficient detail regarding the effectivenessofthis mitigation measure, the measure lacks necessary enforceability and the measure includes improperdeferral of substitute measures. / / A. The EIR LacksSufficient Detail Regarding the Effectiveness of Mitigation Measure3.3.2. The lack of information in Mitigation Measure 3.3.2 is similar and related to the lack of discussion regarding the magnitude ofthe Project’s health impacts. The EIR claims Mitigation Measure 3.3.2 will substantially reduce the Project’s air quality impacts, but as held by the Court of Appeal, there is no information to support that conclusion. (Opinion pp. 58-59.) The EIR again fails to discussthe magnitude of the Project’s public health impacts, here, after the implementation of mitigation. The reviewing public is unable to discern from the information included in the EIR whetherthe provisions in this mitigation measure wouldalleviate the public health risks presented by the Project and if so by how much. This lack of information is exacerbated by the fact the EIR’s analysis of the Project did not disclose the magnitudeofthe Project’s public health impacts. A qualitative analysis, or at least a discussion of the magnitude of reduction that could be provided bythese provisions, needs to be discussed in the EIR. This assessmentis relevant to the analysis ofalternatives to the Project, allowing for the necessary comparison of public health impacts. Additionally, Mitigation Measure 3.3.2 allows the County and the San Joaquin Valley Air Pollution Control District to “substitute different air pollution control measures for individual projects, that are equally effective or superior to those proposed.” (Opinion p. 60.) Without an assessmentofthe magnitudeofreduction that could 10 be provided bythe identified provisions, it is impossible to ascertain whether substitute provisions are equally effective or superior. B. Mitigation Measure 3.3.2 is Not Fully Enforceable as Required By CEQA. CEQArequires “measures to mitigate or avoid significant effects on the environment[to be] fully enforceable through permit conditions, agreements, or other measures.” (Pub. Resources Code § 21081.6, subd. (b).) As held by the Court of Appeal, Mitigation Measure 3.3.2 fails meet this requirement becauseit fails to identify the means by which the County will make the measures enforceable, nor doesit “clearly state who is to do what and whenthat action must be taken.” (Opinion p. 56.) Without a clear identification of the enforcement mechanism and the actions to be taken, the public cannot be assured the mitigation measure will actually be implemented. This problem is compoundedbythelikelihood that there will be no public processin the future regarding the implementation of mitigation measures in which membersof the public can participate. The necessary information must be presented now to comply with CEQA’s public participation goals. Amiciare also very concerned that Mitigation Measure 3.3.2 states that the provisions of this measure “be required where feasible and appropriate.” (Opinion pp. 57-58.) It is the purpose of the EIR andthe findings adopted by the County to determinethe feasibility of mitigation measures for the Project’s impacts. Such 11 decisions should not be deferred until some later date, at which point Amici’s ability to object to a findingof infeasibility is uncertain. Amici have often seen a well meaning agency impose mitigation measures during the CEQA review process, but then the measures are not implemented. How to enforce mitigation measures is a serious dilemma when the measure does not includea clear statement regarding enforceability. (Opinion p. 56, footnote 25.) If the measuresare not implemented dueto a lack ofclarity or enforceability, the impactsofthe project will change. When a project is approved, the public is informedofits impacts and the agency makes findings approving the project based onits impacts with the mitigation in place. Courts have recognized the importance of CEQA’s requirementthat mitigation measures be fully enforceable. “The purposeofthese requirementsis to ensurethat feasible mitigation measures will actually be implemented...and not merely adopted and then neglected or disregarded.” (Federation ofHillside and Canyon Association v. City ofLos Angeles (2000) 83 Cal.App.4th 1252, 1261, italics omitted; see also Lincoln Place Tenants Ass'n v. City ofLos Angeles (2005) 130 Cal.App.4th 1491, 1508 [“Mitigating conditions are not mere expressionsofhope.”}.) C. The Ability to Substitute Mitigation Measures in the Future Results in Improperly Deferred Mitigation Due to the Lack of Performance Standards. It is well settled the CEQAprohibits deferring the developmentof mitigation measures for a project with significant impacts, unless the EIR includes performancestandards with which the future mitigation measures must comply. 12 (CEQA Guidelines § 15126.4, subd. (a)(1)(B); Communitiesfor a Better Environmentv. City ofRichmond (2010) 184 Cal.App.4th 70, 95-96; POET, LLC v. California Air Resources Board (2013) 217 Cal.App.4th 681, 734.) The Court of Appeal found Mitigation Measure 3.3.2 was improperly deferred becauseit provides: “The County and [Air District] may substitute different air pollution control measuresfor individual projects, that are equally effective or superior to those proposedherein...” (Opinion p. 60.) Amici would certainly support the implementation of moreeffective mitigation measures in the future, particularly those resulting from technological advances. However, based on the information containedin the EIR,it will be impossible to determine whether future mitigation measures are moreorless effectiveat reducing the Project’s public health impacts because the EIR doesnot evaluate the effectiveness of the provisions included in Mitigation Measure 3.3.2 at reducing this impact. / / 13 Conclusion Forall of the reasonsset forth herein, Amici urge this Court to upholdthe Court of Appeal’s determination that the Friant Ranch EIR wasrequired to discuss the magnitude of the Project’s air quality induced health impacts andthat the mitigation for this impactis inadequate becauseit lacks sufficient detail and enforceability and includes improperdeferral. Respectfully submitted, May 6, 2015 CHATTEN-BROWN & CARSTENS, LLP hl Jan‘Chatten-Brown Douglas Carstens Amy Minteer Attormeys for Amicus Curiae Association of Irritated Residents, Medical Advocates for Healthy Air and Coalition for Clean Air 14 CERTIFICATE OF WORD COUNT (Calif. Rules of Court, rules 8.204) The text of this brief consists of 3,116 words as counted by the Microsoft Word 2010 word-processing program used to generate the document. May6, 2015 CHATTEN-BROWN & CARSTENS LLP BeLf myMinteer Attorneys for Amicus Curiae Association ofIrritated Residents, Medical Advocates for Healthy Air and Coalition for Clean Air 15 Sierra Club et al. v. County ofFresnoetal. Supreme Court of California Case No. S219783 (Fifth District Court ofAppeal Case No. F066798; Fresno County Superior Court Case No. 110ECG00726) PROOF OF SERVICE Tam employed by Chatten-Brown & Carstens LLP in the County of Los Angeles, State of California. I am over the age of 18 andnota party to the within action. My business address is 2200 Pacific Coast Highway, Ste. 318, Hermosa Beach, CA . On May6, 2015, I served the within documents: APPLICATION OF ASSOCIATION OF IRRITATED RESIDENTS, MEDICAL ADVOCATES FOR HEALTHY AIR AND COALITION FOR CLEAN AIR FORLEAVE TO FILE AMICI CURIAE BRIEF AND AMICI CURIAE BRIEF VIA UNITED STATES MAIL. I am readily familiar with this business’ practice for collection and processing of correspondencefor mailing with the United States Postal Service. On the same day that correspondenceis placed for collection and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service in a sealed envelope with postage fully prepaid. I enclosed the above-referenced document(s) in a sealed envelopeor package addressedto the person(s) at the address(es) as set forth below, and following ordinary businesspractices I placed the package for collection and mailing on the date and at the place of businessset forth above. SEE ATTACHED SERVICE LIST I declare that I am employedin the office of a member of the bar of this court whose direction the service was made. I declare under penalty of perjury underthe lawsof the State of California that the above is true and correct. Executed on May 6, 2015, at Hermosa Beach, California. Aéty Minteer Sierra Club et al. vy. County ofFresnoetal. Supreme Court of California Case No. 8219783 SERVICE LIST Sara Hedgpeth-Harris veLAW OFFICE OF SARA Anomey for Plaintiffs and HEDGPETH-HARRIS Ppe vine 5445 E. Lane Ave. Sierra Club et al. Fresno, CA 93727 Daniel C. Cederborg Attorney for Defendant and Bruce B. Johnson, Jr. Respondent, OFFICE OF THE FRESNO COUNTY County ofFresno COUNSEL 2220 Tulare Street, Suite 500 Fresno, CA 93721 Bryan N. Wagner Attorneys for Real Party In WAGNER & WAGNER Interest/ Respondent, 7110N. Fresno St, Suite 340 Friant Ranch, L.P. Fresno, CA 93720 James G. Moose Attorneys for Real Party In Tiffany K. Wright Interest/ Respondent, Laura M.Harris Friant Ranch, L.P. REMY MOOSE MANLEY, LLP 555 Capitol Mall, Suite 800 Sacramento, CA 95814 Clerk of the Court Fifth District Court ofAppeal 2424 Ventura Street Fresno, CA 93721 Clerk of the Court Superior Court of California County ofFresno 1130 O Street Fresno, CA 93721 Sierra Club et al. v. County ofFresnoet al. Supreme Court of California Case No. S219783 COURTESY COPIES: R. Tyson Sohagi THE SOHAGI LAW GROUP 11999 San Vicente Blvd., Suite 150 Los Angeles, CA 90049 Marcia L. Scully General Counsel METROPOLITAN WATERDISTRICT OF SOUTHERN CALIFORNIA P.O. Box 54153 Los Angeles, CA 90054 Shanda M.Beltran General Counsel BUILDING INDUSTRY LEGAL DEFENSE FOUNDATION 17744 Sky Park Cr., Suite 170 Irvine, CA 92614 Gene Talmadge, President CALIFORNIA ASSOCIATION OF ENVIRONMENTAL PROFESSIONALS 40747 Baranda Court Palm Desert, CA 92260 Jennifer L. Hernandez HOLLAND & KNIGHT LLP 50 California Street, Suite 2800 San Francisco, CA 94111 Catherine T. Redmond 261 High Street Duxbury, MA 02332 Attorney for Amici Curiae California Cities, and the California State Association ofCounties Attorney for Amicus Curiae Metropolitan Water District ofSouthern California Attorney for Amicus Curiae Building Industry Legal Defense Foundation Attorney for Amicus Curiae California Association of Environmental Professionals On behalfofAmicus Curiae, CEQA Research Council Attorney for Amicus Curiae San Joaquin Valley Unified Air Pollution Control District Sierra Club et al. y. County ofFresnoetal. Supreme Court of California Case No. S219783 Annette Ballatore-Williamson, District Counsel 1990 E. Gettysburg Avenue Fresno, CA 93726 Kurt R. Wiese, General Counsel Barbara Baird, ChiefDeputy Counsel SOUTH COASTAIR QUALITY MANAGEMENTDISTRICT 21865 Copley Drive Diamond Bar, CA 91765 Attorney for Amicus Curiae San Joaquin Valley Unified Air Pollution Control District Attorney for Amicus Curiae South Coast Air Quality ManagementDistrict o e
