SIERRA CLUB v. COUNTY OF FRESNO (FRIANT RANCH)

Amicus Curiae Brief of Center for Biological Diversity

Cal.May 12, 2015

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 MAY 72 208 Defendant and Respondent, FRIANT RANCH,L.P. Real Party in Interest and Respondent From a Decision by the Court ofAppeal Fifth Appellate District filed May 27, 2014 Case No. F066798 Appeal from the Superior Court of California, County ofFresno Case No. 110ECG00726, Honorable Rosendo A.Peria,Jr. APPLICATION FOR PERMISSION TO FILE AMICUSBRIEF & AMICUS BRIEF OF CENTER FOR _BIOLOGICAL D uk “Ln Suppart o& Pyar ans Michael W. Graf (CA Bar # 136172) 227 BehrensStreet El Cerrito, California 94530 Tel/Fax: (510) 525-1208 Attorney for Amicus Curiae Center for Biological Diversity CASE NO. 8219783 IN THE SUPREME COURT OF CALIFORN IA SIERRA CLUB, REVIVE THE SAN JOAQUIN, an d LEAGUE OF WOMEN VOTERSOF FRESNO, Plaintiffs and Appellants V. COUNTY OF FRESNO Defendant and Respondent, FRIANT RANCH,L.P. RealParty in Interest and Respondent From a Decision by the Court ofAppeal Fifth Appellate District filed May 27, 2014 Case No. F066798 Appeal from the Superior Court of California, Co unty of Fresno Case No. 110ECG00726, Honorable Ros endo A.Peria, Jr. APPLICATION FOR PERMISSION TO FIL E AMICUS BRIEF & AMICUS BRIEF OF CE NTERFOR BIOLOGICAL DIVERSITY Michael W. Graf(CA Bar # 136172) 227 BehrensStreet El Cerrito, California 94530 Tel/Fax: (510) 525-1208 Attorney for Amicus Curiae Center for Biolo gical Diversity TABLE OF CONTENTS Page APPLICATION TO FILE BRIEF OF AMICI CURIAE ......-.. 50s eee eeeeee eee I BRIEF OF AMICUS CURIAE CENTERFOR BIOLOGICAL DIVERSITY _....... 2 I. INTRODUCTION 2.2.0... 0.2 c cece eee eee eee t ene eee eeees 2 Il. DISCUSSION ........ ccc cece eee eee eee eee tennant ener ee tnenens 3 A. |THE COURT MUST REJECT REAL PARTY'S NEW PROPOSED STANDARD OF REVIEW AS CONTRARY TO FUNDAMENTAL CEQA LAW THATAN EIR BE ADEQUATEAS AN INFORMATIVE DOCUMENT TO ENSURE MEANINGFUL ANALYSIS _.......-- 3 1. Courts Exercise Independent Judgment in Assessing Whether an EIR Satisfies CEQA's Informational Standards. ..............- 4 a. Real Party's Approach is Unworkable and WouldEliminate a Court's Review of Whether an EIR Contained Adequate Analysis to Apprise the Public and Decisionmakers ofthe Relevant Issues at Stake. . 1.0... cee ee cee ee eee eee 7 CEQA's Informational Requirements Are Not Judge-Made But Instead Derive from the CEQA Legislation and Guidelines. ......... 0. cece eee ce ee eee eee erences 10 The Fact that There is No One Size Fits All Standard for What Constitutes Sufficient Analysis Cuts in Favor, not Against, Independent Review ...........+--++eeeeee 14 Real Party Errs in Arguing that the Standard for Whether an EIR Is Adequate as an Informational Document Only Applies to the Question of Prejudice. «1.2... 06sec eee cere eee ences 16 Real Party's Argumentthat Substantial Evidencein the Record May Cure an EIR's Informational Inadequacy is Contrary to Case Law and CEQA's Principles that the EIR Convey to the Public the Basis of the Agency's Decision on a Project. ......-- +6. +-eeeee ees 20 B. ADOPTED MITIGATION TO MINIMIZE SIGNIFICANT IMPACTS ARE SUBJECT TO THE SAME CEQA REQUIREMENTS APPLICABLE TO MITIGATION DESIGNED TO AVOID SUCH IMPACTS.. ...... 22 TI. CONCLUSION ..... 0... cecececece eee ene e eee ees 24 Certification of Word Count 0.0.0... cece cee en eee cnet eee rere eenens 24 ii TABLE OF AUTHORITIES Page Cases Association ofIrritated Residents v. County ofMadera (2003) 107 Cal. App. 4th 1383 0.1... eee eee erect erent ett eens 9 East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal. App. 3d 155 0.0... s cece cece cece eee n teen ents 20 Environmental Defense Fund, Inc. v. Coastside County Water Dist. (1972) 27 Cal. App. 34695, 6... eee eee eee eter e ener 4,18 EnvironmentalProtection Information Center v. California Dept. ofForestry & Fi re Protection (2008) 44 Cal. 4th 459, 6... eee eee eee eee eee tte n ene es 18. 19 Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal-App.3d 604 2.0... cece cence eect tenet enees 19 Joy RoadArea Forest and Watershed Association v. CDF (2006) 142 Cal. App. 4th 656 10... c eee cere eee eee n erent eens 21 Laurel Heights Improvement Assn. v. Regents ofthe Univ ofCalifornia (1988) 47 Cal. 3d 376, 392, 6... eee eee entree ett nes 5,7, 21 Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal. 4th 439 oo... eee eeecen e ee net tenes 14,17 Perez v. Roe 1 (2006) 146 Cal. App. 4th 171 2... cee eee eee ee teen eee ees 15 Rural Landowners Ass'n v. City Council (1983) 143 Cal. App. 3d 1013... . 2. eee eee eee teen ee eet tte e tenes 20 Sierra Club v. State Bd. ofForestry (1994) 7 Cal. 4th 1215, 6... cece eee eee eee eee tenner renee 5, 1 8-20 Topanga Assn. for a Scenic Community v. County ofLos Angeles (1974) 11 Cal. 3d 506 2.0... cee terete tnt e ern e tenes 6 VineyardArea Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal. 4th 412. 2... cee cece eee enter tenet e erent tne 5 iii Statutes Pub. Res. Code § 21000(g) 6...eccece enter ee ete nn een ee eees 11 Pub. Res. Code § 21005(a) o eee tere ene nena 17 Pub. Res. Code § 21005(b) 6.6ee eee eee ees 17 Pub. Res. Code § 21002. 2...cccnee eee ener e eee n eee 12, 22 Pub. Res. Code § 21061 2.2... ccc ccc tener teen e ete e eens 11, 21 Pub. Res. Code § 21081(b) .....cec c cceee eeet eee e eens 12 Pub. Res. Code § 21083 2.02... ccc cece cnet teen teen nent enenees 10 Pub. Res. Code §21083.1 2.0... .. cece ec ener eee eee ee eee e ent tn er ennees 10 Regulations 14 Cal. Code Regs. § 15126.2(a). 0... ccc cc cence neeeee renee ene eens 13 14 Cal. Code Regs. § 15126.4 2.0... cc cece cccee eee nee n tenes 23, 24 14 Cal. Code Regs. § 15126.4(a)(1)(B); «6... ceeeeeene 23 14 Cal. Code Regs. § ISIS]. oeceeee ee ett eens 13, 14, 21 iv APPLICATION TO FILE BRIEF OF AMICUS CURIAE The Center for Biological Diversity requests leave pursuantto rule 8.520 (f) of the California Rules of Court tofile a brief of Amicus curiae. The Center is a non-profit organization whose mission is to ensure the preservation, protection, and restoration of biodiversity, native species, ecosystems, and public health. The Center has more than 825,000 members and online activists with offices in California and other states. The Center works through science, law, andcreative media to secure a future for all species hovering on the brink of extinction. The Center has been a party to many California Environmental Quality Act (CEQA) lawsuits where land use activities threaten conservation interests due to the lack of adequate environmental review. The Center hasa particular interest in ensuring that the impacts ofthese activities are fully disclosed and mitigated if feasible. May6, 2015 Respectfully requested, Attorney for Amicus Curiae Center for Biological Diversity BRIEF OF AMICUS CURIAE CENTER FOR BIOLOGICAL DIVERSITY I. INTRODUCTION Amicuscuriae Center for Biological Diversity ("Amicus") submits this Amicus Brief on two important issues raised in the Court's review of Sierra Club v. County ofFresno, Supreme Court Case No. 8219783. First, Amicus will address the standard ofreview issue. Real Party's briefs argue for a new standard ofreview in CEQAdecisions, which would essentially eliminate a court's independent judgment over the adequacy of the analysis presented in a CEQA environmental review document, As discussed below,this result would alter decades of case decisions holding that an agency's failure to include adequate analysis in the CEQA review process constitutes a failure to proceed according to law. These decisions are grounded in the principle that informational adequacy in an EIR is a fundamentallegislative directive set forth in the Public Resources Code and CEQA Guidelines, which courts interpret as part ofjudicial review. Second, Amicuswill address Real Party's argumentthat an agency's formulation of mitigation measures designed to minimizea project's significant cumulative impacts may be deferred without any accompanying performance standards. RealParty's argumentthat there is a difference between mitigation designed to avoid significant impacts and mitigation designed to minimize-- but not avoid --such impacts is unavailing. Both standards are substantive CEQA requirements. In asserting that either requirementwill be met, the EIR constitutes a document of accountability to the public, which cannot simply be ignored through a lack of clear standards as to whatlevel of impact mitigation will be achieved. I. DISCUSSION A. THE COURT MUST REJECT REAL PARTY'S NEW PROPOSED STANDARD OF REVIEW AS CONTRARY TO FUNDAMENTAL CEQA LAW THATAN EIR BE ADEQUATEAS AN INFORMATIVE DOCUMENT TO ENSURE MEANINGFUL ANALYSIS. Real Party's central argumentto the Court focuses on the standard of review for an EIR, in which Real Party claims that, where at least some information on a subject matter required by CEQAis presented, a court should review the adequacy ofthe EIR's analysis under the deferential ‘substantial evidence’ standard. In Amicus' view, this approach would constitute a radical restructuring ofhow courts review an agency's CEQA compliance. As discussed below, this Court should reject Real Party's approach, which is in conflict with virtually every published CEQA decision that has addressed this topic. Hf 1. Courts Exercise Independent Judgmentin Assessing Whether an EIR Satisfies CEQA's Informational Standards. Numerouscase decisions hold that the judiciary has the authority to assess the informational adequacy of an EIR, to ensure that the information and analysis presented demonstrates a meaningful evaluation of the potential environmental impacts of a project and alternatives or mitigation that could avoid or substantially lessen such impacts. Oneofthe earliest CEQAdecisions, Environmental Defense Fund, Inc. v. Coastside County Water Dist. (1972) 27 Cal. App. 3d 695, considered and rejected a trial court's holding that it had no authority to evaluate the adequacy of an EIR: [T[he EIR has another function: the informing of the executive and legislative branches of government, state and local, and ofthe general public of the effect ofthe project on that revered resource which wecall "The Environment." Obviously, the impact often must be deleterious to some extent to virgin land,to air, to beauty of unspoiled places because ofthe needsofthe times. But the EIR must fulfill the role of disclosure of qualified estimations of the best way, all things considered, of meeting the demandsofthe present while preserving and,ifpossible, enlarging an ample inheritance for the future. .....In sustaining the propriety ofthe injunctive process, we are aware that a certain burdenwill be added to those already carried by the courts...But we envisage a limited use ofthe injunction in the control of the EIR. The court does not have the duty ofpassing on the validity ofthe conclusions expressed in the EIR, but only on the sufficiency ofthe report as an informative document. (citations omitted.) Id. at 704-705 (emphasis added.) Subsequent Supreme Court decisions have upheld this approach. See Laurel Heights Improvement Assn. v. Regents ofthe Univ ofCal. (1988) 47 Cal. 3d 376, 392 (“Laurel Heights 1°”); Sierra Club v. State Bd. ofForestry (1994) 7 Cal. 4th 1215, 1235-1236; Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal. 4th 412, 435. Real Party does not challenge this long standing precedent headon, but instead tries to carve out a new exception based on the following: Thefirst question presented... addresses the legal gray area, recognized by the Court of Appeal, regarding the standard ofreview that applies when an EIR addresses all the topics required by CEQA but challengers still claim that the information providedin the EIRis insufficient. (OB,pp. 1, 11; Opn. 23.) As demonstrated in Real Party’s Opening Brief, the substantial evidence standard applies to such claims, rather than the “failure to proceed” standard of review applied by the Court of Appeal. See Real Party's Reply Brief, p. 9 (emphasis added.) Whileit is true the Court of Appeal did utilize this distinction -- i.e., the situation where a required EIR topic is not addressedat all versus one in whichthe required topics are addressed but not analyzed adequately -- this does not create a legal precedentfor different standards ofreview that would apply. This is because the analysis required in an EIR is just as importantas the information provided; indeed in some cases the analysis will be the mostcritical aspect in ensuring a meaningful evaluation of impacts and possible mitigation measures. As the Court ofAppeal observed: We will discuss these two action verbs-identify and analyze- separately... the Friant Ranch EIR has identified, in a general manner, the adverse health impacts that could result from the Project's effect on air quality. Despite the inclusion ofthis information, the Friant Ranch EIR was short on analysis. It did not correlate the additional tons per year of emissions that would be generated by the Project(i.e., the adverse air quality impacts) to adverse human health impacts that could be expected to result from those emissions. See Opinion, p. 48. (emphases added.) RealParty's arguments gloss overthe long standing authority of courts to review the analyticalprocess utilized by public agencies in reaching administrative decisions that could affect numerouscitizens. See e.g. Topanga Assn.for a Scenic Community v. County ofLos Angeles (1974) 11 Cal. 3d 506, 515-516 (courts must focus on the "analytic route the administrative agency traveled from evidenceto action... By exposing the administrative agency's mode ofanalysis, findings help to constrict and define the scope ofthe judicial function. "We must know what[an administrative] decision means,' observed Mr.Justice Cardozo, ‘before the duty becomesours to say whetherit is right or wrong.”) Adequate analysis is central to the function of an EIR to ensure that meaningful evaluation of potential environmental impacts (and feasible mitigation for those impacts) has occurred. As this Court has held: An EIR is an "environmental ‘alarm bell' whose purposeitis to alert the public andits responsible officials to environmental changes before they have reached ecological points of no return. The EIR is also intended "to demonstrate to an apprehensivecitizenry that the agency has, in fact, analyzed and considered the ecological implicationsofits action."... (citations omitted.) Laurel Heights I, supra, 47 Cal. 3d at 392 (emphasis added.) Dozensof CEQAdecisions have followed this reasoning in evaluating the adequacyof an EIR's analysis over the decades. Real Party's standard ofreview arguments wholly ignore the primary role of adequate analysis in the CEQA review process. Under RealParty's approach,as long as an agency addressed a topic in any way, with any data or information, that would be sufficient to render the EIR ‘adequate’ from the standpoint of independent judicial review. a. Real Party's Approach is Unworkable and Would Eliminate a Court's Review of Whether an EIR Contained Adequate Analysis to Apprise the Public and Decisionmakers of the Relevant Issues at Stake. Real Party's standard ofreview argument confuses the question of whetherthe analysis in an EIR is adequate with the separate question of whetherthere is substantial evidence to support an agency's findings. In this case, for example, Real Party argues that the County's findingsthat air pollution impacts will be significant and unavoidable are supported by the EIR's discussion ofair emissions from the project and disclosure ofthe amountofpollutants emitted per year, the health impacts ofthose pollutants generally, and the fact that the project areas is within a current non-attainment zone for these pollutants, thereby establishing an existing significant cumulative effect to whichthis project will contribute. See e.g., Real Party's OpeningBrief, p. 37. The Court ofAppeal, however, did not address the issue of substantial evidence; instead, the Court ofAppeal determined there was a lack of requisite analysis, dueto the failure to analyze the project's contribution to the adverse health impacts being experienced by local citizens. In other words, while information was provided, that information was not analyzed by the agency in a mannerthat would apprise the public and decision-makers of what the project impacts would be, as opposed to simply presenting raw numbers of emitted pollutants and letting the readers ofthe EIR make their own guessesasto the relative impacts. See e.g., Opinion,p. 49 ("As presently written, the final EIR does not inform the reader what impact,if any, the projectis likely to have...") Ultimately, Real Party's approach is unworkable in attempting to substitute a ‘substantial evidence’ review standard in place ofthe separate question ofwhether an EIR contained an adequate analysis ofthe impacts and potential mitigation for a a particular project. Here, evidence alone cannotsubstitute for missing analysis because there is no direct correlation between the two. An EIR must explain what the evidence meanssothat the public and decision-makers can be adequately apprised of a project’s impacts. Indeedit is for this reason that where an EIR fails as an informational and analytical document, a court does not look to see if there is substantial evidence supporting the agency's decision. In Association of Irritated Residents v. County ofMadera (2003) 107 Cal. App. 4th 1383, for example, the court criticized case decisions applying a ‘substantial evidence’ review standard to EIRs that lacked adequate information to ensure a meaningful evaluation of potential environmental impacts: These...decisions fail to acknowledge the important public informational purpose that EIR's serve. An EIR is an educationaltool not just for the decisionmaker, but for the public as well...Thus, the existence of substantial evidence supporting the agency's ultimate decision on a disputed issue is not relevant whenoneis assessing a violation ofthe information disclosure provisions of CEQA. Id. at 1391-1392 (emphasis added.) Theresult of adopting Real Party's approach would beto eliminate the requirementthat an EIR contain adequate analysis to apprise the public and decisonmakersofpotential project impacts and feasible mitigation. Instead, as long as an agency addressedthetopicat all, a court's review would belimited to whether there was evidence supporting the agency's ultimate findings and decision. That result is inconsistent with CEQA. b. CEQA's Informational Requirements Are Not Judge-Made ButInstead Derive from the CEQA Legislation and Guidelines. A commonthemeofReal Party's briefs is that the Court ofAppealin this case created new requirements-- in this case, a requirement to conduct an analysis of how this project would contribute to daily air pollution levels acknowledged to be harmful to humanhealth - that are not contained within CEQA.See e.g., Real Party's Opening Brief, p. 38 (The Court ofAppeal failed to honor[the restriction set forth in Public Resources Code § 21083.1] on its interpretive power by imposing a new legal mandate — a requirement to include in an EIR an analysis correlating a project's air emissions with specific health impacts — that is not required by CEQA or the Guidelines.") Real Party's argument implies that if a specific type of analysis is not expressly required by the Public Resources Code orthe CEQA Guidelines, a court may not considerthe lack of such analysis in determining that an EIR fails to meet CEQA's informational standards. This argument substantially overstates the breadth of Public Resources Code § 21083.1. The analysis found by the Court ofAppeal to be necessary to ensure 10 a meaningful evaluation of project impacts and feasible mitigation derives from CEQAprovisionsthat are, by definition, non-specific, but in no wa y less mandatory on agencies. These includethe Legislature's direction in Public Resources Code§ 21000(g) thatall agencies "regulate such activities so that major consideration is given to preventing environmental damage, while providing a decent home and satisfying living environment for every Californian." (emphasis added.) Here, notwithstanding Real Party's claims, it is the Court's job to determine what constitutes 'major consideration,’ not the agency. Similarly, courts must determine what level of analysis is necessary to fulfill CEQA's requirement that an EIR "provide public agencies and the public in general with detailed information aboutthe effect whicha proposedprojectis likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project." See Pub. Res. Code § 21061 (emphasis added.) Whether information and analysis is sufficiently detailed to meet this statutory requirementis within the province ofjudicial review. One of the most important CEQAprovisions provides as follows: The Legislature finds and declaresthatit is the policy ofthe state that public agencies should not approve projects as proposedifthere are feasible alternatives or feasible mitigation measuresavailable which would substantially lessen the significant environmental effects of such projects, and that the procedures required by this 11 division are intendedto assist public agencies in systematically identifying both the significant effects ofproposed projects and the feasible alternatives or feasible mitigation measures which will avoid or substantially lessen such significant effects. The Legislature further finds and declares that in the event specific economic,social, or other conditions make infeasible such project alternatives or such mitigation measures,individual projects may be approvedin spite of one or moresignificant effects thereof. Pub. Res. Code § 21002. As numerous decisions have recognized over the years, accomplishing these legislative objectives requires sufficient analysis in order for agencies and the public to understand what the project impacts are and whetheror how they can be avoided or substantially lessened. Equally important, if an agency proposesto determine that a project should be approved despite significant environmentaleffects, it is essential that the agency,prior to implementing the statement of overriding considerations balancing test described under Public Resources Code § 21081(b), have conducted the requisite analysis to understand the true magnitude ofthe impacts from the project is is approving and the actualinfeasibility of mitigation to avoid such impacts. Indeed, the Court ofAppeal specifically cited to this balancing as a reason for why the analysis found missing in the EIR wasrelevant and necessary to the EIR's informational adequacy: In this case, information about the magnitude ofthe human health impacts is relevant to the board of supervisors’ value judgment about whether other considerations override the adverse health impacts. In other words, a disclosure ofrespiratory health impacts that is limited 12 to the better/worse dichotomy does not allow the decision makers to perform the required balancing ofeconomic, legal, social, technological and other benefits ofthe project against the adverse impacts to human health because they have not been informed ofthe weightto place on the adverse impactside ofthe scales... Opinion,p. 49, n. 23 (emphasis added.) This legislative direction is further amplified by the CEQA Guidelines, which were promulgated also pursuantto legislative direction set forth in Public Resources Code § 21083. These include CEQA Guidelines § 15126.2 (a) whichstates in part: Direct andindirect significant effects of the project on the environment shall be clearly identified and described, giving due consideration to both the short-term and long-term effects. The discussion should include relevant specifics of the area, the resources involved, physical changes, alterations to ecological systems, and changes induced in population distribution, population concentration, the human use ofthe land (including commercial andresidential development), health and safetyproblems caused by the physical changes, and other aspects ofthe resource base such as water, historical resources, scenic quality, and public services. See Cal. Code Regs., Title 14, § 15126.2, subd.(a) (emphasis added.) Similarly, CEQA Guidelines § 15151 states: An EIR shouldbe prepared with a sufficient degree ofanalysis to provide decision makers with information which enables them to make a decision which intelligently takes account ofenvironmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency ofan EIRis to be reviewed in the light ofwhatis reasonablyfeasible. Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among 13) the experts. The courts have looked not for perfection but for adequacy, completeness, and a goodfaith effort atfull disclosure. See Cal. Code Regs., Title 14, § 15151 (emphases added.) The determination ofwhatconstitutes a ‘sufficient degree of analysis’ to ensure that decision makers can make ‘intelligent’ decisions with respect to project approvals, environmental impacts and feasible mitigation is a job for the judiciary, who are charged with this interpretative duty. Here, far from creating a 'new legal mandate’ (see Real Party's Opening Brief, p. 38), the Court ofAppealproperly exercisedits interpretive authority in this case with respect to whatconstitutes a sufficient analysis in an EIR regarding a significant and asserted unavoidable environmental impact.’ c. The Fact that There is No OneSize Fits All Standard for What Constitutes Sufficient Analysis Cuts in Favor, not Against, Independent Review. The requirement for analysis in an EIR will vary depending on the 1 A good example of a court's authority to infer statutory requirements from non-specific CEQAstatutory directives is Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal. 4th 439,in which this Court considered CEQA law and Guidelinesto craft a standard for when an agency may dispense with utilizing the existing environment as a comparative baseline for an EIR's impact analysis. In so doing, this Court noted that it was not creating new requirements in violation ofPublic Resources Code § 21083.1, but instead merely interpreting CEQA's mandates, as courts have always done.See id. at 457 ("Contrary to Justice Baxter's claim, our holding here does not impose any ‘wasteful’ or ‘additional’ substantive requirement on agencies....") 14 project proposed, the potential impacts of that project, and the available informationthat can beutilized. See e.g., Amicus Brief of South Coast Air Quality ManagementDistrict, pp. 8-16. Here, in contrast to Real Party's claims, the Court of Appeal was careful notto direct the specific parameters ofwhat an air impact analysis should looklike, just that one be done so as to provide necessary information to the decision-makers and the public: The foregoing references to the data providedin the EIR should not be interpreted to mean that County must connect the project’s levels of emissionsto the standards involving days of nonattainment or parts per million. County has discretion in choosing whattype of analysis to provide and we will not direct County on how toexercise that discretion.... Nonetheless, there must be some analysis of the correlation between the project’s emissions and human health impacts.... In other words, we agree with plaintiffs that it is not possibleto translate the bare numbersprovidedinto adverse health impacts resulting from this project. (citations omitted.) Opinion, pp. 49-50 (emphasis added.) Real Party argues that because there is no brightline rule for what constitutes a sufficient analysis in an EIR, this Court should therefore dispense with judicial review authority over this issue. But the opposite is true. Contrary to Real Party's separation ofpowers arguments, courts -- not administrative agencies -- are tasked with the job ofinterpreting statutory directives such as those contained in CEQA.See Perez v. Roe I (2006) 146 Cal. App. 4th 171, 177 ("A core function ofthe judiciary is to resolve 15 specific controversies between parties. As part of that function, the courts interpret and apply existing laws...") Overthe decades, courts have ably interpreted CEQA, including the substantive and procedural requirements for what constitutes an adequate EIR. Notwithstanding Real Party's claims, there are no grounds,either legal or practical, for changingthis status quo regardingthe courts' independent review of an EIR's informational and analytical adequacy. 2. Real Party Errs in Arguing that the Standard for Whether an EIR Is Adequate as an Informational Document Only Applies to the Question of Prejudice. In their Reply brief, Real Party raises a novel issue, that the standard typically used by courts to determine if an EIR is adequate as an informational document is in fact a query which only comesupif 1) abuse of discretion has already been established; and 2) the question is now whether that abuse ofdiscretion was prejudicial. See e.g., Real Party's Reply Brief, p. 10 ("Appellants improperly impute the standard used by the courts to determine prejudice under CEQAto the question ofwhether the agency abusedits discretion in the first instance.") Amicusstrongly disagrees with this flawed legal framework, which could well lead to EIRs that fail to ensure meaningful evaluation of impacts being nevertheless affirmed according to a substantial evidence review 16 standard with no connection to whether the EIR meets CEQA standardsfor informational adequacy. In response, Amicus would make twopoints. First, the relevant standardsset forth in the Public Resources Code and in case decisions addressing prejudice in CEQA disputes do not alter the points made above, that courts have the authority and duty to interpret CEQAandits guidelines, and thusthe ability to assess whetheran EIR is adequate as an informational document. Noauthorities cited by Real Party changes that equation. For example, Public Resources Code Section 21005 states only that "noncompliance with the information disclosure provisions of this division which precludesrelevant information from being presented to the public agency, or noncompliance with substantive requirements of this division, may constitute a prejudicial abuse ofdiscretion..., regardless ofwhether a different outcome would have resulted if the public agency had complied with those provisions" and that "in undertaking judicial review... courts shall continue to follow the established principle that there is no presumption that error is prejudicial." See Pub. Res. Code §§ 21005(a)-(b). (emphasis added.) Further, Real Party's continued citations to Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority, supra, for the proposition that abuse of discretion and prejudice are separate inquires does nothing to 17 support their argument. In Neighborsfor Smart Rail, this Court merely followed the Jongstandingprinciple that a court should "not be obliged to act upon unsubstantial defects." Environmental Defense Fund, Inc.v. Coastside County Water Dist., supra, 27 Cal. App. 3d at 705. Noneofthesecitations address the independent authority of courts to determine whether CEQAlegislative and Guideline directives have been complied with by agencies, including standards ofwhether there has been sufficient analysis to ensure the informational adequacyofthe EIR. Second, as a practical matter, Real Party's arguments on prejudice are nothing more than an attempt to take advantageofa confusing area of law that has developed within CEQAjurisprudence. For example, Real Party invites this Court to overrule the holdingofits prior decision in Sierra Club v. State Bd. ofForestry, supra, 7 Cal. 4th 1215,that the failure to comply with CEQA's procedures is presumptively prejudicial. See Real Party's Opening Brief, p. 45, n. 17 ("Real Party respectfully urges that the Court was mistaken.") Real Party's argument is based on Public Resources Code § 21005(b), which, as discussed above,states that "there is no presumption thaterroris prejudicial." However, this Court recently explained how this tension can be resolved in EnvironmentalProtection Information Center v. California Dept. ofForestry & Fire Protection 18 (2008) 44 Cal. 4th 459, as follows: ‘Judicial decisions indicate that the ‘establishedprinciple’ in CEQA cases was not one ofpresumedprejudicefrom any error, but one involvingthe determination ofprejudicefrom the violation ofa fundamentalregulatoryprovision. Absent additional guidance from the Legislature, andin light of the policy expressedin the cases..., we assumethat the enactment of section 21005 was simply a reminder ofthe general rule that errors which are insubstantial or de minimis are not prejudicial." [Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 623, fn. 11.] We note that the Legislature has not amended section 21005 since the above case, except to add a subdivision (c) not relevantto the issue ofprejudicial error.... Td. at 487 (emphasis added.) In sum, this Court's holding in Sierra Club v. State Bd. ofForestry that prejudice may be presumed from a violation of fundamental CEQA provisionsis still, appropriately, the applicable law. A review ofcase law on this subject suggests that in many cases, courts have treated the types of informational failures as occurred in this case,i.e., failures of analysis which render the EIR non-compliant with the information disclosure provisions ofCEQA and the CEQA Guidelines as discussed above, as violations of fundamental CEQApolicy and thus inherently prejudicial. As stated in Sierra Club v. State Bd. ofForestry: Thefailure ofthe board to proceed as required by law was prejudicial. The absence of any information regarding the presence of the four old-growth-dependentspecies on the site frustrated the purpose ofthe public commentprovisions ofthe Forest Practice 19 Act.... It also made any meaningful assessment ofthe potentially significant environment impacts oftimber harvesting and the developmentofsite-specific mitigation measures impossible. In these circumstances prejudice is presumed. 7 Cal, 4th at 1236-1237 (emphasis added.) These and other CEQA-based decisions demonstrate that where an EIR's inadequacy as an informational document prevents a meaningful evaluation ofthe impacts ofa particular project, that error is prejudicial.” Noneofthese decisions stand for the proposition that the courts do not exercise independent review on the threshold question ofthe EIR's informational adequacy in the first instance. 3. Real Party's Argument that Substantial Evidence in the Record May Cure an EJR's Informational Inadequacy is Contrary to Case Law and CEQA's Principles that the EIR Conveyto the Public the Basis of the Agency's Decision on a Project. Real Party adds anotherparticularly problematic claim to its standard ofreview argument, that the court, in applying a substantial evidence test to 2 See e.g., Rural Landowners Ass'n v. City Council (1983) 143 Cal. App. 3d 1013, 1022 ("We conclude that where that failure to comply with the law results in a subversion ofthe purposes ofCEQA by omitting information from the environmental review process, the error is prejudicial."); East Peninsula Ed. Council, Inc. v. Palos Verdes Peninsula Unified School Dist. (1989) 210 Cal. App. 3d 155, 174 (" Suchfailure to comply with CEQAis prejudicial because meaningful information and analysis of cumulative effects and significant environmental effects not occurringat the receptor schools were omitted from the environmental review process.In light ofthe above determination, we do not need to address respondents’ contention that the school board's perfunctory conclusionthat its decision satisfied the requirements of Guidelines section 15314... is not supported by substantial 20 assess the adequacy ofthe EIR, may search the entire record for that information. See e.g., Real Party's Brief, p. 16 ("[T]he court should review the administrative record, as a whole, to determine whether substantial evidence supports the agency's decision that the EIR sufficiently discusses a required subject.") This approach would violate a central tenant ofCEQA,that the EIR function as a documentofaccountability: Because the EIR mustbe certified or rejected by public officials,it is a documentofaccountability. IfCEQA is scrupulously followed, the public will know the basis on whichits responsible officials either approveor reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with whichit disagrees. ....The EIR process protects not only the environmentbut also informed self-government. (citations omitted.) Laurel Heights I, supra, 47 Cal. 3d at 392. As discussed, CEQA andthe CEQA Guidelines set forth standards for what an EIR must contain in order to be found adequate. See Pub. Res. Code § 21061; See Cal. Code Regs., Title 14, § 15151. These provisions do not contemplate EIR's lacking the requisite information and analysis to be somehow cured by other documents in the record to which the general public may havelittle or no accessto. See e.g., Joy RoadArea Forest and Watershed Association v. CDF (2006) 142 Cal. App.4th 656, 675 ("[W]e find that, in addressing the fog drip evidence.") 21 issue, the parties (and the trial court) have conflated twodistinct issues, first, whether THP 219 contains a sufficient cumulative impact analysis of the fog drip issue and, second, whether CDF's ultimate conclusion, set forth in its official response, that there will be no significant adverse impact on fog drip is supported by substantial evidence.") B. ADOPTED MITIGATION TO MINIMIZE SIGNIFICANT IMPACTS ARE SUBJECT TO THE SAME CEQA REQUIREMENTSAPPLICABLE TO MITIGATION DESIGNED TO AVOID SUCH IMPACTS. Real Party makes another novel argument with respect to the mitigation issue, that in cases where proposed mitigation will minimize, as opposed to avoid, significant impacts, the well-settled rules prohibiting mitigation deferral without performance standards do not apply. This argument should be squarely rejected. The requirements for mitigation derive from the Legislature's direction that CEQA procedures are "intended to assist public agencies in systematically identifying both the significant effects ofproposed projects andthe feasible alternatives or feasible mitigation measures which will avoid or substantially lessen such significant effects." See Pub. Res. Code § 21002 (emphasis added.) Here, the County adopted Mitigation Measure 3.3.2 as a measure promising to 'minimize’ the significant cumulative effects ofthe project. 22 See Real Party's Brief, p. 47. The requirements for this mitigation are set forth in CEQA Guidelines § 15126.4, which address the "consideration and discussion ofmitigation measures proposed to minimize significant effects." (emphasis added.) See Cal. Code Regs., Title 14, § 15126.4. This includes the requirement of Section 15126.4(a)(1)(B)that "[fjormulation of mitigation measuresshould not be deferred until some future time" but that "measures may specify performance standards which would mitigate the significant effect ofthe project and which may be accomplished in more than one specified way." Nothing in CEQAor the CEQA Guidelines suggests that deferred mitigation measures need not contain performance standards simply because they are intended to minimize, rather than avoid, significant cumulative effects. In fact, the statutory and regulatory provisions say exactly the opposite, that measures intended to minimize impacts are subject to the same requirements as measures designed to avoid such impacts. Performance standards are essential in both cases where mitigation is proposedto be deferred in order to ensure future implementation and accountability on the part of the agency andreal party. Amicus notes that in cases such as this one, where cumulative air pollution impacts are already significant,it will often be the case that 23 ‘minimizing’ further incremental impacts is the only option available to reduce environmental harm. Real Party's suggestion that such mitigation need not meet basic CEQAstandardsas set forth in Section 15126.4 should be soundly rejected as contrary to law and soundpublic policy. Il. CONCLUSION This Court should confirm that courts exercise independent judgment in evaluating the analytical sufficiency of an EIR, regardless ofwhether the EIR contains information on a given topic. Further, the Court should confirm that mitigation intended to minimize environmental impacts may not be deferred absent clear performance standards, as required by CEQA Guideline § 15126.4 May6, 2015 Respectfully submitted, eA Lp MichaefW.Graf Attorney for Center for fvosica Diversity CERTIFICATION OF WORD COUNT Thetext of this Amicus Brief consists of 5,845 words, as counted by the Microsoft Word processing program usedto generatethis brief. DATED:May6, 2015 , MMA LI Michael W. Graf 24 Sierra Club et al. v. County ofFresnoetal. Supreme Court ofCalifornia. Case No. 8219783 (Fifth District Court ofAppeal Case No. F066798; Fresno County Superior Court Case No. 110ECG00726) PROOF OF SERVICE I am a citizen of the United States and a resident of the County of Alameda. I am over the age of eighteen years andnota party to this action. My business address is 227 BehrensStreet, El Cerrito California 94530. On May6, 2015, I served one true copy of: APPLICATION FOR PERMISSION TO FILE AMICUS BRIEF & AMICUS BRIEF x Byplacinga true copy enclosed in a sealed envelope with prepaid postage in the United States mail in Berkeley California addressed to the persons listed below. SEE ATTACHED SERVICELIST I declare underpenalty ofperjury that the foregoing is true and correct and is executed on May6, 2015, at El Cerro California. ” Michaelwa 25 Service List Sierra Clubet al. v. County ofFresnoetal. Supreme Court of California. Case No. $219783 Sara Hedgpeth-Harris LAW OFFICE OF SARA HEDGPETH-HARRIS 5445 E. Lane Ave. Fresno, CA 93727 Daniel C. Cederborg Bruce B. Johnson, Jr. OFFICE OF THE FRESNO COUNTY COUNSEL 2220 Tulare Street, Suite 500 Fresno, CA 93721 Bryan N. Wagner WAGNER & WAGNER 7110 N. Fresno St, Suite 340 Fresno, CA 93720 James G. Moose Tiffany K. Wright Laura M. Harris REMY MOOSE MANLEY, LLP 555 Capitol MA Suite 800 Sacramento, CA 95814 Clerk ofthe Court Fifth District Court of Appeal 2424 Ventura Street Fresno, CA 93721 Clerk ofthe Court Superior Court of California County of Fresno 1130 0 Street Fresno, CA 93721 26