[See feeexemption, Gov. Code § 6103] Case No. 8219783 IN THE SUPREME COURT OF CALIFORNIA SIERRA CLUB, REVIVE THE SAN JOAQUIN,and LEAGUE OF WOMEN VOTERS OF FRESNO Petitioners and Appellants, V. COUNTY OF FRESNO Defendant and Respondent; age FRIANT RANCH,L.P. Real Party in Interest and Respondent. APPLICATION OF LEAGUE OF CALIFORNIACITIES, CALIFORNIA STATE ASSOCIATION OF COUNTIES, CALIFORNIA SPECIAL DISTRICTS ASSOCIATION AND ASSOCIATION OF CALIFORNIA WATER AGENCIES FOR LEAVE TO FILE AMICUSBRIEF; AMICUS CURIAE BRIEF IN SUPPORT OF REAL PARTYIN INTEREST After a Published Decision by the Court of Appeal, filed May 27, 2014 Fifth Appellate District Case No. F066798 Appeal from Superior Court of California, County of Fresno Case No. 11CECG00726 Honorable RosendoA.Pefia, Jr. THE SOHAGI LAW GROUP, PLC Margaret M. Sohagi, State Bar No. 126336 Philip A. Seymour, State Bar No. 116606 11999 San Vicente Boulevard, Suite 150 Los Angeles, California 90049-5136 Telephone: (310) 475-5700 Facsimile: (310) 475-5707 Attorneys for Amici Curiae LEAGUE OF CALIFORNIA CITIES, CALIFORNIA STATE ASSOCIATION OF COUNTIES, CALIFORNIA SPECIAL DISTRICTS ASSOCIATIONand ASSOCIATION OF CALIFORNIA WATER AGENCIES [See fee exemption, Gov. Code § 6103] Case No. 8219783 IN THE SUPREME COURT OF CALIFORNIA SIERRA CLUB, REVIVE THE SAN JOAQUIN,and LEAGUE OF WOMENVOTERSOF FRESNO Petitioners and Appellants, V. COUNTY OF FRESNO Defendant and Respondent; FRIANT RANCH,L.P. Real Party in Interest and Respondent. APPLICATION OF LEAGUE OF CALIFORNIACITIES, CALIFORNIA STATE ASSOCIATION OF COUNTIES, CALIFORNIA SPECIAL DISTRICTS ASSOCIATION AND ASSOCIATION OF CALIFORNIA WATER AGENCIES FOR LEAVETO FILE AMICUSBRIEF; AMICUS CURIAE BRIEF IN SUPPORT OF REAL PARTYIN INTEREST After a Published Decision by the Court of Appeal, filed May 27, 2014 Fifth Appellate District Case No. F066798 Appeal from Superior Court of California, County of Fresno Case No. 11CECG00726 Honorable RosendoA.Pefia,Jr. THE SOHAGI LAW GROUP,PLC Margaret M. Sohagi, State Bar No. 126336 Philip A. Seymour, State Bar No. 116606 11999 San Vicente Boulevard, Suite 150 Los Angeles, California 90049-5136 Telephone: (310) 475-5700 Facsimile: (310) 475-5707 Attorneys for Amici Curiae LEAGUE OF CALIFORNIA CITIES, CALIFORNIA STATE ASSOCIATION OF COUNTIES, CALIFORNIA SPECIAL DISTRICTS ASSOCIATION and ASSOCIATION OF CALIFORNIA WATER AGENCIES APPLICATION TO FILE Pursuant to Rule 8.200(c) of the California Rules of Court, the League of California Cities (“League”), the California State Association of Counties (“CSAC”), the California Special Districts Association (“CSDA”) and the Association of California Water Agencies (‘ACWA”), collectively “Amici,” respectfully request leave to file the accompanying amicusbriefin this proceeding, in support of Real Party in Interest/Respondent,the Friant Ranch, L.P. This brief was drafted by Philip Seymour of The Sohagi Law Group, PLCon behalf the Amici, in consultation with Jennifer Henning, general counsel for CSAC; Koreen Kelleher, assistant general counselfor the League; David McMurchie, counsel for CSDA; Daniel S. Hentschke, chair ofACWA’s Legal Affairs Committee; and Robert C. Horton, senior deputy general counsel for the The Metropolitan Water District of Southern California. No party or counsel for a party in the pending case authored the proposed amicusbrief in whole or in part, or made any monetary contribution intended to fund its preparation. STATEMENT OF INTEREST AS AMICI CURIAE The Leagueis an association of 474 California cities dedicated to protecting andrestoring local control to provide for the public health, safety, and welfare of their residents, and to enhancethe quality oflife for all Californians. The Leagueis advised by its Legal Advocacy Committee, whichis comprised of 24 city attorneys from all regions of the state. The Committee monitors litigation of concern to municipalities, and identifies those cases that have statewide or nationwide significance. The Committee has identified this case as having such significance. 1 BRIEF OF AMICUS CURIAE CSACis a non-profit corporation. The membership consists of the 58 California counties. CSAC sponsorsa Litigation Coordination Program, whichis administered by the County Counsels’ Association of California and is overseen by the Association’s Litigation Overview Committee, comprised of county counsels throughoutthe state. The Litigation Overview Committee monitors litigation of concern to counties statewide and has determinedthat this case is a matter affecting all counties. CSDAis a California non-profit corporation consisting of in excess of 1,000 special district members throughout California. These special districts provide a wide variety of public services to both suburban andrural communities, including water supply, treatment and distribution; sewage collection and treatment; fire suppression and emergency medical services; recreation and parks; security and police protection; solid waste collection, transfer, recycling and disposal; library; cemetery; mosquito and vector control; road construction and maintenance; pest control and animal control services; and harborandport services. CSDA monitorslitigation of concern to its membersand identifies those cases that are of statewide significance. CSDAhasidentified this case as being of such significance as manyofits members frequently serve as CEQAlead agencies. ACWAis a non-profit public benefit corporation organized and existing under the lawsofthe state of California since 1910. ACWAis comprised of over 450 public water agencies, including cities, municipal waterdistricts, county water districts, irrigation districts, municipal utility districts, public utility districts, California water districts, and special act districts. ACWA’s member agencies frequently are CEQAlead agencies for waterfacilities and programs for the supply, production, conservation, treatment, storage, transportation, and distribution ofwater throughout 2 BRIEF OF AMICUS CURIAE California. ACWA’s Legal Affairs Committee, comprised of attorneys representing ACWA members from each ofACWA’s 10 regional divisions throughout the State, monitorslitigation and has determined that this case involves significant issues affecting ACWA’s member agencies. Amici’s members havea strong interest in a clear and uniform standard of reviewin CEQAlitigation, to ensure that reviewing courts properly defer to the expertise that lead agencies have in preparing CEQA documents and evaluating the environmental impacts of projects. DATE: April 2, 2015 By: 3 AIDEL¢: Margaret M. Sohagi Philip A. Seymour THE SOHAGI LAW GROUP,PLC Attorneys for Amicus Curiae LEAGUE OF CALIFORNIA CITIES, CALIFORNIA STATE ASSOCIATION OF COUNTIES, CALIFORNIA SPECIAL DISTRICTS ASSOCIATION AND ASSOCIATION OF CALIFORNIA WATERDISTRICTS BRIEF OF AMICUS CURIAE Il. IIL. Table of Contents Page INTRODUCTION AND ISSUES ADDRESSED........cccceceeeseeees ] THE SUFFICIENCY OF AN EIR CANNOT BE DETERMINED AS A MATTER OF LAW OR PROCEDURE....... 2 A. Vineyard Area Citizens and the Dual Standardsfor Judicial REVIOW ........ccccccccesssssssssssesseesseessecsseeseessessssensesseessaes 2 Practical CONSEQUENCES.........:csccscceseeesseesseesesesseeseessscessssaeecsees 4 This Court’s Post-Vineyard Decisions are Helpful But Do Not Establish Many Clear Sign-Posts for Distinguishing Predominately Procedural and Predominately Factual ISSUES oo... scseeeseesceesceeeseeeceeseesseserseeseeseeecseeeeseessesssesseesseesanaceass 8 The Majority of Existing Appellate Decisions Treat Allegations of Insufficient Information as Substantial Evidence Questions..........:cccsccssessssssssesssesesseeecsseetecseseseneensas 12 Judicial Review ofAdequacy Must Focus on the Validity of Agency Judgments and Determinations Concerning the Content of the EIR; These Determinations are Reviewed Underthe Substantial Evidence Test.............:ccscsssessseessens 17 CEQA, THE CEQA GUIDELINES AND CASE LAW DO NOT PROVIDE CLEAR AND UNAMBIGUOUS STANDARDS THAT ALLOW ISSUESOF “SUFFICIENCY” OR ADEQUACYOFAN EIR TO BE RESOLVED AS QUESTIONSOF LAW...cee ceessesseeeseeeeeteesseeeeeeesseseeesseesaeenseseesas 20 A. The Guidelines and Case Law Inherently Require Lead Agencies to Exercise Judgment and to Balance Competing Directives Regarding the Scope and Contentof an EIR........ 21 Lead Agencies are Entitled to Consider Costs, Delays and Other Feasibility Considerations............cccccsccsssssessessssssosseee 28 Whether an EIR Adequately Informs Decisionmakers and the Public Goesto the Issue of Prejudice, Not Abuse of Discretion; Such a Test is Too Inherently Subjective to be Used as a Legal Standard for Judging the Initial Question of Adequacy of the EIR...ices eceseeereeceeeeeeeseeseseesseseeseeeens 29 Conclusion - Determining the Appropriate Scope and Level of Detail in an EIR is Not a Matter of Merely i BRIEF OF AMICUS CURIAE IV. Table of Contents (continued) Following Correct Procedure; Such Questions Must Be Reviewed Under the Substantial EvidenceTest...........0...000. 31 EXISTING PRINCIPLES OF LAW AND SOUND PUBLIC POLICY MANDATERELIANCE ON THE SUBSTANTIAL EVIDENCETEST...cecesseessescseeccneeseeeaeeeeecesessesesaesseseesseeaeeseess 31 A. The Court Reviews a Lead Agency’s Decision to Certify an EIR - That Decision is Entitled to the Same Deference as Any Other Decision Involving Agency Discretion and JUAQMENE ooeee ee ceceeceeeeeseeeeeceseeeeesesssseseseeseseseeeseeeessessnes 32 Substantial Evidence Review is Consistent with the Statutory Standard of Review Specified in CEQA............... 33 Separation Of POWEYS..........:cccssscsssssesscsseessesceescecstessscsssensaee 34 Courts Lack the Technical Expertise and Complete Knowledge of Background Facts Necessary to Independently Evaluate Lead Agency Determinations Madein Preparation of an EIR...cecccecsssesseeesssseseesesesessees 34 Review Underthe Substantial Evidence Test is Not Inconsistent with Vigorous Enforcement of CEQA’s Basic Manat..........cccccccccsscsccceessesssecceccceccceseccsseceseeseeceecttsececeuuans 35 The Public Comment Function ofCEQA Provides an Adequate MeansofEnsuring that Public Concerns are Addressed ...........scceccssceeeseeseesessecesseeseeseesecseseeceseecsesesseceuseaseuse 38 Application of the Substantial Evidence Test is Most Consistent with Public Policies Favoring Certainty and Predictability... eecseseesseeecsceeseeseeeesssseseseessseseeesteneeseess 40 CONCLUSION uuu. eecsssceseeeeseeeeeseeseeseeseesersesersesesaeessesessesaeenseses 4] il BRIEF OF AMICUS CURIAE Table of Authorities Ea @ Cases Al Larson BoatShop, Inc. v. Board ofHarbor Commissioners (1993) 18 Cal.App.4th 729 oo. cccccscssscseseessecssesessseesseeseessseesseeneenes 20 Associated ofIrritated Residents v. County ofMadera (2003) 107 CalApp.4th 13830ccceeseseeeeesecsessesesseenes 13, 24, 25, 29 Bakersfield Citizensfor Local Controlv. City ofBakersfield (2004) 124 CalApp.4th 1184occeccsesseccsssesseesessesssesseeessensees 2,15 Ballona Wetlands LandTrust v. City ofLos Angeles (2012) 201 CalApp.4th 455occccssesssesseecessessssessecessesseseeeseseaeees 12 Banning Ranch Conservancy v. City ofNewport Beach (2012) 211 CalApp.4th 1209 oocccccsccssceessecessesecessseseesseeses 15, 24 Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609 oooeeeeeceeseteeeeeceeseetetsssesessrseseeseens 16, 19 Berkeley Hillside Preservation v. City ofBerkeley (2015) 60 Cal4th 1086 00.ecececssecseeneeecessesersessesssseseeesseeess 20, 40 Cadiz Land Co., Inc. v. Rail Cycle, L.P. (2000) 83 CalApp.4th 74 oo... cccccsscssssecesseceessseeseesressecsascesssessessneeaes 25 California Native Plant Soc. v. City ofSanta Cruz (2009) 177 Cal.App.4th 957 oo.cecccssssessecsseceescesceesseessesssssesseeeseeeses 15 California Oak Foundation v. City ofSanta Clarita (2005) 133 CalApp.4th 1219oececcesesscccesscsscsscseeseesssseseesseaeees 24 Cherry Valley Pass Acres and Neighbors v. City ofBeaumont (2011) 190 Cal.App.4th 316oeeecscessseseeesseetseesseesseeseeeeseens 16, 36 Citizens Against Airport Pollution v. City ofSan Jose (2014) 227 CalApp.4th 788 oo... ceccccsssesseesseesessssesseesesssesseeesseseneeeses 36 Citizensfor a Sustainable Treasure Island v. City and County ofSan Francisco (2014) 227 Cal.App.4th 1036 .cccccssssesscsssscssssesssseesssssscssseessesseeseen 23, 36 Citizens ofGoleta Valley v. Board ofSupervisors (1990) 52 Cal.3d 553 ooeececscesressecseeceseseeeeesessesseseesseesseeenees passim ili BRIEF OF AMICUS CURIAE S e a p e t s g i a ’ Table of Authorities (continued) Page Citizens Opposing a Dangerous Environment v. County ofKern (2014) 228 CalApp.4th 360occcccccsccsssssssssscsccsscsssesscceessecsectscsens 13 Citizens To Preserve the Ojai v. County of Ventura (1985) 176 CalApp.3d 421ieeccecsseesesscsseseesesseeeseseseesseesessecsees 25 City ofLong Beach v. Los Angeles Unified SchoolDist. (2009) 176 CalApp.4th 889 oo.ccccssecssessesesssseesecsseesssseenserees passim City ofMarina v. Board ofTrustees ofthe California State University (2006) 39 Cal.4th 341 oooeccscsscssscsscsseesesscssesseseesseesseessesseeseceeanes 20 Clover Valley Foundation v. City ofRocklin (2011) 197 CalApp.4th 200 oo. cece cccescessssssssssssssssesseeseeeneeees 14, 25, 27 Committeefor Green Foothills v. Santa Clara County Bd. ofSupervisors (2010) 48 Cal.4th 32oeccccccsscssecssesseessesessessessessesseesseseesseessseeanes 40 Communitiesfor a Better Environmentv. City ofRichmond (2010) 184 CalApp.4th 70 oo. ccecsssssssesessesssssssesssescssecsseessssrsceneaes 25 Communities For A Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310...ccceseeseessesescssecsensesecsseseeseesseesseesseesees 11, 36 County ofAmador v. El Dorado County Water Agency (1999) 76 CalApp.4th 931 occccscssssseesesssesssessessceseesseessseseeseeesenes 24 County ofOrange v. Superior Court (2003) 113 CalApp.4th Loeeeeeccseeseeseeceserecsessesseeeesessssesseseeseees 4] Dry Creek Citizens Coalition v. County ofTulare (1999) 70 Cal.App.4th 20ocececsccssesseeseesessessesessseseesseesseessessesssnees 14 Ebbetts Pass Forest Watch v. California Dept. ofForestry and Fire Protection (2008) 43 Cal.4th 936.0... cccsesscessessssssceseseesesssssesseeseesseeens 8,9, 10, 17 Eureka Citizensfor Responsible Developmentv. City ofEureka (2007) 147 CalApp.4th 357 oo. ccccscsscsscesssesscssesecsscesecesecseeesressssenss 36 Flanders Foundation v. City ofCarmel-by-the-Sea (2012) 202 CalApp.4th 603... cccsccsesseesessssssssseessssesseeseeseessesecsessssees 6 Friends ofShingle Springs Interchange, Inc. v. County ofEl Dorado (2011) 200 Cal.App.4th 1470iccceceseseesessceseseessecssccscsseessessssevens 4] iv BRIEF OF AMICUS CURIAE Table of Authorities (continued) Page Gray v. County ofMadera (2008) 167 Cal-App.4th 1099 ooo. ccccccssseeesecseeessecsseecssssesserecseeaecs 37 Halaco Engineering Co. v. South Central Coast Regional Com. (1986) 42 Cal.3d 52 oo. eeecsccsesssseecsseesseesesesesseesesesseseeeeseceeesssecseesaes 33 In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143oececscccseeesesessessssesseesesseeessesens 18, 24, 32 Kings County Farm Bureau v. City ofHanford (1990) 221 CalApp.3d 692 oo... cccccessesssssssessssesseetseseescsesesseeesess 17, 29 Laurel Heights Improvement Assn. v. Regents ofthe University of California (1988) 47 Cal.3d 376 oo.cscccesccsseescecssecsesseesesseesseeeeseeeesaeessesees passim Laurel Heights Improvement Assn. v. Regents ofthe University of California (1993) 6 Cal.4th L112ecccccsseessecseeesessesesceseeeseesteeeeseseecssessesenes 39 Madera Oversight Coalition, Inc. v. County ofMadera (2011) 199 Cal.App.4th 48 oooecscescsesssssesssesseeeseesssseessesecseseees 13 Masonite Corporation v. County ofMendocino (2013) 218 Cal.App.4th 230 oo.eesseesseeesesssseesseseeseeneeessessssesenseesees 37 National Parks & Conservation Assn. v. County ofRiverside (1999) 71 Cal.App.3d 1341 occccccecscssseseessscessesecseeeeeseesessesssseeneeces 8 Neighborsfor Smart Rail v. Exposition Metro Line Const. Authority (2013) 57 Cal.4th 439occcccscscecessseessessesseseessecsseeesseesessesseees passim North Coast Rivers Alliance v. Marin Municipal Water District Board of Directors (2013) 216 CalApp.4th 614 oo.cceecccscssesssecesesessessesseessseeesens 15, 20 Oakland Heritage Alliance v. City ofOakland (2011) 195 CalApp.4th 884oecccccsscsesetsssseessessseeesseessseesssensess 15 Preserve Wild Santee v. City ofSantee (2012) 210 CalApp.4th 260 0.0... cccecsccsssssessescessecssecesseeessstssesseseessees 12 Rialto Citizensfor Responsible Growth v. City ofRialto (2012) 208 CalApp.4th 899 oo.cecsccssessessssessseesecesseeeeseeesserees 12, 29 Vv BRIEF OF AMICUS CURIAE Table of Authorities (continued) Page San Diego Citizenry Group v. County ofSan Diego (2013) 219 CalApp.4th Locccscccssssscssesseessessseeeseessseenes 14, 20, 36 San Franciscansfor Reasonable Growth v. City and County ofSan Francisco (1984) 151 Cal.App.3d 61 occccccccsscssssscesssesseesseeseensecsseesssseeseeess 8, 28 San Joaquin Raptor Rescue Center v. County ofMerced (2007) 149 CalApp.4th 645 ooccccccseessssessesseseecssesssessesesessessesseeees 15 San Joaquin Raptor/Wildlife Rescue Center v. County ofStanislaus (1994) 27 Cal.App.4th 713 oo. cccccsccsssssessesecseesessssessecssesssssesseereesens 27 Santa Clarita Organizationfor Planning the Environmentv. City ofSanta Clarita (2011) 197 CalApp.4th 1042 ooocccccssceceeseessecseeeeessetsessessasenes 14 Santa Monica Baykeeperv. City ofMalibu (2011) 193 CalApp.4th 1538.0... ceecssssecsesccssesssessecseeseeseenes 2, 15,17 Save Cuyama Valley v. County ofSanta Barbara (2013) 213 Cal.App.4th 1059occcccscssessessescesscessessesesessessessesenes 29 Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503 oo. ccccsccsesscsessesscseceseecsseessesssssenseseessens 15 Sierra Club v. State Bd. ofForestry (1994) 7 Cal.4th 1215 occccccccsceseesecssesscsseecesssesseesseeseeesesssenseees 3,12 Town ofAtherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314occssseeesessesseseesessesseeseeseseeseneees 14, 24 Tracy First v. City ofTracy (2010) 177 Cal.App.4th 912 oo.cccecesesscseseesseseeseeseesssesseeseeresseesees 13 Twain Harte HomeownersAssn. v. County ofTuolumne (1982) 138 Cal.App.3d 664occeccsseseesesseesesscessecseesesesssseseeseesaees 38 Uphold Our Heritage v. Town of Woodside (2007) 147 CalApp.4th 587 oo... ceccccssccssssesscssesesesseeseesssessetsessersssees 15 VineyardArea Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4th 412ooceccseeseessesneeseesessesseeeseseesseeeeeseeees 3, 19, 42 vi BRIEF OF AMICUS CURIAE Table of Authorities (continued) Page Western States Petroleum Assn. v. Superior Court (1995) 9 Cal4th 559ooceeseeceseeseesseseseeeeseseeeeeeeeresaseessessesssenseees 34 Statutes Code of Civil Procedure § 1094.5(C).......cccssccssesssseesseeesssccesecssecssssssesesees 33 Public Resources Code § 21003 0... .ccccccsscssssesseessseeseeeesseeecsseesseseessenensacs 28 Public Resources Code § 21003(D) .......cccccscscecessccssscessseceseessssssssssessaeees 5 Public Resources Code § 21003(C).....c..ccscsssssssceesseesseeceseseesserssesssssssecseee 26 Public Resources Code § 21003(f) ........c.ccccssscsccssseccessresscenseeeesenes 5, 22, 39 Public Resources Code § 21003.1(a)........:cccssssscesseessecsssetecssessssesssessesaes 39 Public Resources Code § 21005(a).........cccccccssseessseeesssecceesseessssssseseessaeees 29 Public Resources Code § 21005(b) .....cccecessesseessseesnsecesseeeessessseseenes 20, 29 Public Resources Code § 21083 woo... ccccsecccsssesssecessseeccesssecsenssesssesesasensees 1 Public Resources Code § 21083.1 .....ccccccessscsssessseeseccesseeesseessesessees 20, 40 Public Resources Code § 21091(a)........cccccsssestecsssesssccesesecesssessssssssecesseee 38 Public Resources Code § 21091(d) «0... cccccssccssesseesseeeeseeesesesessesscesseussere 38 Public Resources Code § 21092.1............. | seeeeeeeeeneeeesssaeeceesseeseesaanenses 39 Public Resources Code § 21093 0... .ecccccsscssssessessseeseesessteceseessesensseeeesaes 24 Public Resources Code § 21094 0... .eccccscssscssseesseessssessssssesesessassssssesesaee 24 Public Resources Code § 21100... cccscesssessseesseeessecesseeeesseessesssenes 21, 32 Public Resources Code § 21151(8)........ccccccscsssesseeeseseesscecseessssssssecsees 32 Public Resources Code § 21168 oo... eee ceeccsccssssseessesssesseeesseessseseseeees 32, 33 Public Resources Code § 21168.5 wo... cccccsssssesesesssscessssecesssesssseses 32, 33 Public Resources Code § 21177(a).......:ccscsssssceseeessesssesssteeseceseesesseeescsees 20 vii BRIEF OF AMICUS CURIAE Table of Authorities (continued) Page Treatises 2 Kostka & Zischke, Practice Under the California Environmental Quality Act (CEB 2014), § 23.35 voecsssescceseeeseeeeeseaseeeseeaeeeessesseeeeseeeeseseeteeeeeeees 17 Regulations CEQA Guidelines § 15006... cccccccsecessscsscsssesssesseesessusersscssscsessenseves 22 CEQA Guidelines § 15006(1) ...... cc cececccsecsseeescesseesssesessseeessesesssssveneeees 22 CEQA Guidelines § 15006(1)-(U) 0... cccecscssesenseeseeesseeeeeesteessesssssuseceuees 5 CEQA Guidelines § 15006(0) .......ceeescecsscsssscsseesseessseesseeeecesserssesssveneeeees 23 CEQA Guidelines § 15006(p) .......cccccsccscssssssesseessesseesseeeeseecstesessscssssenes 23 CEQA Guidelines § 15006(S).........:cccsssccsseesscesseesseessesessssceeessesssesuses 23, 24 CEQA Guidelines § 15088 oo... ceccssssccsssscessscessecessscecceesssecessssussesesaees 38 CEQA Guidelines § 15088(C)0... cescsecseseccessereesesseesecessesesesseeesseseesenes 39 CEQA Guidelines § 15088(d) ...... cece ccccssccssccessscessssseesessesescssssssacesseeers 38 CEQA Guidelines § 15088.5 ooesesseecseesseeseeseeseeaeeesseseseeeassseeseesees 39 CEQA Guidelines § 15090(a)00... ccccccssscsssesssesseccsscessucsseessesssssescseeeeses 32 CEQA Guidelines § 15125(a) 0... ceeeeccesessessessesecessetesseeenseesscseseesees 11,27 CEQA Guidelines § 15126.2().........ccccccsscsssesssessesescesseceessseesssssseeses 11, 36 CEQA Guidelines § 15126.2(d) oo... cei esccscseccseessesseseeeseesseesseseeseesesseenees 23 CEQAGuidelines § 15126.4(a)(L)(D).o..e eee ecsseeeesetenseeeseeesesseetseseeseestes 23 CEQA Guidelines § 15126.4(a)(3)......eccsesseseeesseseeseeeeseeseetsacseseeeaseneens 36 CEQA Guidelines § 15126.6(d) oc.cceccsssessssssccssscsssesccsssscesssssesseesaees 23 CEQA Guidelines § 15128oeeeeeeseesseeesseceeseserseersecesetessessseseneeses 36 CEQA Guidelines § 15130(D) oe.eeeeesceeseseeeeteeesesseesseeesseeesaeenens 23, 24 CEQA Guidelines § 15141]ieeeecsccssesseesserseerseseeeeeseeeseesesas 5, 22, 23 viii BRIEF OF AMICUS CURIAE Table of Authorities (continued) Page CEQA Guidelines § 15143 woo. eecccsccsessssesessessseessesssseessssssesseessesseaes 26 CEQA Guidelines § 15144...cccccsesessecessseseeceseerseesseseneseessesses 25, 26 CEQA Guidelines § 15145 occccsccceeesssseecnseceresssscsssssssseeneeeeses 19, 26 CEQA Guidelines § 15146 ooo. ceeecscsessssecssseseesssessecesesscssssesseessenseesees 23 CEQA Guidelines § 15147 oo... ccccccscssssesseseseccsseeeecssseeeesessseseeessenseeas 24 CEQA Guidelines § 1515]oeeeeeesceetsssceseeeseeseeesesesseessens 8, 21, 22, 28 CEQA Guidelines § 15152 oo... ccsecseseessecsssesseecsseessessecseesseenseessnseeses 24 CEQA Guidelines § 15204(a).........cccccecsessseeseecessesseesessssessssenes 23, 25, 28 CEQA Guidelines § 15364 oo... cecsccsscssssssseesssesseeeseeessesseesssseesasesssssanes 28 CEQA Guidelines §§ 15120-15190.5...cccccccccesscessesessecseessssesseeseeseees 21 ix BRIEF OF AMICUS CURIAE 1. INTRODUCTION AND ISSUES ADDRESSED Amici curiae League of California Cities (“League”), California State Association of Counties (“CSAC”), California Special Districts Association (“CSDA”) and Association of California Water Agencies (“ACWA”), collectively, “Amici,” file this amicus brief in support of real party in interest Friant Ranch, L.P. Amici represent the vast majority of cities, counties, special districts and public water agencies throughout the State of California. This brief addresses one issue presented for review: Doesthe substantial evidence standard of review apply to a court’s review of whether an environmental impactreport (“EIR”) provides sufficient information on a topic required by the California Environmental Quality Act (“CEQA”), oris this a question of law subject to independentjudicial review? (See Friant Ranch Opening Brief, p. 1, 7 1; Answer Brief of Sierra Club et al (“SC Brief”), p. 7, Issue No. 1.) Asthe local public agencies which are collectively responsible for preparing andcertifying the great majority of EIRs produced in California every year, Amici are vitally interested in and will be directly impacted by the answerto this question. As discussedin this brief, the process of preparing an EIR under the CEQArequires public agencies to undertake a myriad of subordinate decisions about the scope, analytical methods used and ultimate content of the EIR. The CEQA Guidelines promulgated by the State Resources Agency (Pub. Resources Code § 21083) and case law establish general principles and identify various factors which must be considered in determining the foci of discussion, nature of the information required, and the appropriate level of detail in an EIR. CEQAandthe Guidelines, however, clearly require public agencies to exercise sound judgmentand discretion in balancing the relevant factors and applying them to concrete factual situations. A majority of courts have recognized that l BRIEF OF AMICUS CURIAE issues concerning the scope of analysis, methods used and the amountof information presented in an EIR must be reviewed underthe substantial evidencetest. (See, e.g., Santa Monica Baykeeperv. City ofMalibu (2011) 193 Cal.App.4th 1538, 1546; City ofLong Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 898; Bakersfield Citizensfor Local Controlv. City ofBakersfield (2004) 124 Cal.App.4th 1184, 1198.) These courts are correctly applying principles established by this Court in a long series of decisions governing the standard of review in CEQAcases. Determining the appropriate scope of analysis and level of detail in an EIR cannot be equated to the mere following of correct procedures ordained by law. In every case where inadequacyis claimed, the threshold question must be whether the lead agency was required to assess and weigh facts, or apply technical expertise or judgment, in determining what information to include in the EIR. If so, the issue for review is whether the agency’s determination is supported by substantial evidence. A respondent maybe foundculpable of“failing to proceed in the manner required by law”only in thoserelatively rare situations where the EIR onits face has completely failed to address a required topic, where the discussion of a required topic is hopelessly conclusory and devoid of substantive information, or where the lead agency has omitted or misrepresented significant information based on a mistake of law. Il. THE SUFFICIENCY OF AN EIR CANNOTBE DETERMINED AS A MATTER OF LAW OR PROCEDURE A. VineyardArea Citizens and the Dual Standardsfor Judicial Review Althoughthe standard for adjudicating claims concerning the adequacy of an EIR have always been a matter of debate, most current 2 BRIEF OF AMICUS CURIAE litigation on the subject is reflected in differing interpretations of this Court’s decision in Vineyard Area Citizensfor Responsible Growth, Inc.v. City ofRancho Cordova (2007) 40 Cal.4th 412 (‘Vineyard’). There, the Court held that “In evaluating an EIR for CEQA compliance, then, a reviewing court must adjustits scrutiny to the nature of the alleged defect, depending on whetherthe claim is predominately one of improper procedureor a dispute overthe facts.” As an example of a predominately procedural issue, the Court cited Sierra Club v. State Bd. ofForestry (1994) 7 Cal.4th 1215, 1236, in which the respondentfailed to obtain certain required information from the applicant and to include that information in its environmental analysis. As an example of a predominately factualissue, reviewable underthe substantial evidencetest, the Court cited a typical dispute over “whether adverse effects have been mitigated or could be better mitigated.” (Vineyard, 40 Cal.4th 412, 435, citing Laurel Heights Improvement Assn. v. Regents ofthe University ofCalifornia (1988) 47 Cal.3d 376, 393.) Later in the Vineyard decision, the Court foundthat the EIR’s failure to expressly incorporate certain critical information by reference, or tier from an earlier EIR containing that information, was a failure to proceed in the manner required by law. (Vineyard, supra, 40 Cal.4th 412, 444, 447.) The Court also concludedthat the EIR’s discussion of long term water supplies failed both procedurally and under the substantial evidence test because the discussion wasbased on inconsistent statements of fact and wasessentially incoherent, leaving readersto rely on “inference and speculation”as to how water supplies and demands would be balanced. (/d. at 444-445, 447.) In the wake of Vineyard, the dichotomy between “predominately procedural” and “predominantly factual”issues has been recognizedbyall 3 BRIEF OF AMICUS CURIAE courts and most CEQAlitigants. How the line between these twotypes of issues is drawn on a case-by-cases basis, however, remains a matter of intense debate. B. Practical Consequences The line-drawing prescribed by Vineyard has tremendouspractical consequencesfor public agencies and CEQAlitigants generally. Predictably, CEQA petitioners now almost universally contend that any CEQAissue that can be framed as a question of inadequate information - in other words, most CEQAissues - implicates a “failure to proceed in the mannerrequired by law.” From this perspective, substantial evidence questionsare limited to those which implicate purely factual issues, such as the accuracy of conclusions formally stated in an EIR, or found in the respondent’s administrative findings. Even then, it can often be contended that the findings or conclusions are defective because the agencyfailed to consider relevant information or conducta satisfactory analysis. The reason for this preference is obvious. Because procedural issues are reviewed under an independent judgmentstandard, petitioners have a much better chance of success if the issue is framed as procedural. Unlike substantial evidence questions, upon which the courts are bound to defer to agency judgment, all a petitioner must do to prevail on a procedural issue is convincethe court that it “has the better argument.” (Compare Laurel Heights, supra, 47 Cal.3d 376, 393.) For exactly the same reasons, respondents andreal parties prefer to see most CEQAissues addressed as substantial evidence questions, in which due deference is owed to agency judgmentanddiscretion. Thepractical implications of this question are enormous. Quite simply, if “sufficiency”or “adequacy”of an EIRis judged using an 4 BRIEF OF AMICUS CURIAE independent judgment standard, respondents and real parties can seldom be certain that an EJR will be found legally adequate by a Court, particularly where novel or controversial issues are involved or existing scientific understandings or available analytical methodologiesare in a state of flux. Oneinevitable consequence ofthis legal uncertainty is increased costs and delays as lead agencies attemptto anticipate all manner of technical arguments and potential outcomes, and “bulletproof” the EIR by adding layers of information that may be merely cumulative, of marginal value, or even completely superfluous, merely to forestall potential legal claims. This practice greatly increases the time to prepare andcosts of an EIR,often to producelittle practical benefit and at the expense of readability and usefulness. While various provisions of CEQA and the Guidelines counsel that the EIR process should be focused, efficient and analytical rather than “encyclopedic,” the size and complexity of EIRs has grownconsistently over the years in responseto litigation fears and ever changing legal arguments. (Pub. Resources Code § 21003(b), (f); Guidelines § 15006(n)-(u).) Guidelines § 15141 suggests that draft EIRs should “normally be less than 150 pages,”or less than 300 pagesfor projects of “unusual scope or complexity.” These suggestions sound distinctly quaint in an era when EIRs for even modest projects may run hundredsofpages, and EJRs for major or controversial projects to thousandsofpages. While most public agencies and more sophisticated project applicants have adjusted to the financial burdens and delay factors imposed by CEQA,thereis still no easy cure for the problem of uncertainty. As the length and complexity of EIRs have grown,so also have the expectations placed on them by membersof the public and many courts. Although one 5 BRIEF OF AMICUS CURIAE may doubt the wisdom ofthis approach, under current law an EIR cannot be merely 95% or even 99% adequate. If any facet of the EIR, even onethat seems minorin relation to the whole, is found legally inadequate, certification of the EIR may be overturned andproject approvals rescinded. (See, e.g., Flanders Foundation v. City ofCarmel-by-the-Sea (2012) 202 Cal.App.4th 603, 617 [failure to respond to single public comment invalidated EIR].) This “fatal flaw”effect is, in turn, a strong incentive for litigation by project opponents, since it means the project may effectively be brought down,orat least greatly delayed, by the equivalentoftripping over a shoe lace. The chance of success on such issues increases greatly where courts apply an independent judgmentstandard. Whatcritics of an EIR generally fail to acknowledgeisthat preparation of an EIR requires, at every step, a myriad of decisions and judgmentcalls affecting the ultimate content of the EIR. To give a non- exhaustivelist, lead agency staff and consultants must consider and determine: e what criteria will be used to evaluate potentially significant impacts; e what relevant information is available from existing documentary or other sources, and what must be obtained through additional investigative efforts; e what modeling tools or analytical methods are available, and whatare their relative merits and demerits; e the degree to which environmental effects can be assessed with reasonable certainty, and whether somepotential impacts are too uncertain or speculative to permit evaluation; 6 BRIEF OF AMICUS CURIAE e what mitigation measures andalternatives are technically, economically and otherwise feasible, and how effective these mitigation measuresor alternatives would be in reducing environmental effects; e what level of detail is appropriate given the nature of the project, numberandseverity of impacts and amount of relevant information available, and; e when anecdotal information or inexpert public comments received during the process warrant further analysis or investigation, and when they do not. Asdiscussed below, the CEQA Guidelines establish certain general (and sometimes conflicting) principles to guide these determinations, but they do not and cannotprovide specific answers to the day-to-day questions that arise in the course ofpreparing EIRs for the innumerable different types of projects in the almost infinite variety of factual circumstances faced by EIR preparers. (See Section III.A.) Every one of these decisions, however, may affect not only the ultimate conclusions of the EIR, but also the type and amount of information in the EIR, and whatis left out as well as whatis left in. If an independent judgmentstandard is applied by courts reviewing the sufficiency of an EJR, every one of these decisions may also be subject to second guessing. This was not intended by the Legislature. To the contrary, CEQA,the Guidelines and the majority of court cases recognize that CEQAvests lead agencies with broad discretion to determine precisely how they will meet CEQA’s requirements in each particular circumstance. The Guidelines also implicitly allow lead agencies to consider time, cost and efficiency factors in determining what degree ofanalysisis 7 BRIEF OF AMICUS CURIAE “reasonably feasible” in each EIR. (Guidelines § 15151.) Since they are several steps removedfrom the process of preparing an EIR, however, courts are not always well positioned to understand the actual complexities and difficulties involved. In practice, some courts are sensitive to these considerations, but others are not. (Compare National Parks & Conservation Assn. v. County ofRiverside (1999) 71 Cal.App.3d 1341, 1364 to San Franciscansfor Reasonable Growth v. City and County ofSan Francisco (1984) 151 Cal.App.3d 61, 74 [“expediency should play no part in an agency’s efforts to comply with CEQA.”].) Asalso discussed below,certainty and predictability are legitimate and important public concerns in the CEQA context. (See Section IV.G.) The degree to which these exist, however,is critically affected by the standards courts apply in adjudicating claims concerning the adequacy of EIRs. OF This Court’s Post-Vineyard Decisions are Helpful But Do Not Establish Many Clear Sign-Posts for Distinguishing Predominately Procedural and Predominately Factual Issues This Court’s decisions since Vineyard have addressed a wide array of significant CEQA issues, but have not elaborated greatly on the standard of review issue presented in this case. Nevertheless, the cases support broad application of the substantial evidence test to review ofall issues that implicate the exercise of lead agency judgmentor discretion concerning the content of an EIR. In Ebbetts Pass Forest Watch v. California Dept. ofForestry and Fire Protection (2008) 43 Cal.4th 936 (“Ebbetts Pass’’) the Court found that “questions of what analytical procedure is required underthe Forest 8 BRIEF OF AMICUS CURIAE Practice Rules, and whether [the applicant] followed that procedure,is a predominately procedural question ofwhich we exercise our independent legal judgment.” (/d. at 949.) Conversely, the Court found that a disagreement over whether future potential impacts were too speculative to permit detailed analysis was a “predominately factual question” which the Court reviewed underthe substantial evidence test. (/d. at 955.) The Court’s full analysis of these respective issues, however, is more complex and instructive. Thefirst question addressed in Ebbetts Pass involvedinterpretation of regulations, that required the California Department of Forestry & Fire Protection (“CDF”) “to follow a set analytical procedure in assessing cumulative impacts on a given species of animalor plant” in setofthree Timber Harvest Management Plans (““THP’s”) that served as the functional equivalents of a CEQA document. (/d. at 949.) Specifically, [i]n this assertedly mandated procedure, a timber harvest plan’s preparer must, for each species, separately identify a geographic area over which impacts will be assessed, discuss related activities occurring or expected to occurin the selected assessment area, and then assess the cumulative impacts of the proposed timberharvest and the related activities on the species. (Ibid.) Citing Vineyard, the Court applied its independent judgment to the alleged a failure to proceed in the mannerprescribed by law. (/bid.) Even so, the Court rejected petitioners’ claim: “Despite initially designating particular state planning watershedsas the cumulative-impacts assessment areas for all species, the THP’sin fact devoted ample discussion to cumulative impacts on the two speciesat issue, on a much broader geographic scale... .” (/bid.) “By doing so, the THP's avoided any violation of the pertinent provision of the Forest Practice Rules (Cal. Code 9 BRIEF OF AMICUS CURIAE Regs., tit. 14, § 898) and its associated Technical Rule Addendum No.2 (id., foll. § 952.9).” ([bid.) Thus, evenifthe petitioners were correct “[iJn a formalistic sense”that the respondent had failed to comply with certain specific requirements of the applicable regulations, the regulations as a whole provided the respondent discretion to shape the analysis based on relevant facts. (Ud. at 945, 949-950.) The Court went on to reject a claim that the THP failed to discuss the relevant subject matterat a sufficient level of detail. The Court found that this deficiency was “at most, one of insufficient evidence to support CDF’s findings, an issue outside the scope of our review.” (/d. at 950-951.) In effect, the Court held that once the threshold legal issue of what type of information the regulations required wasresolved, the sufficiency of information producedbythe lead agency wassubject to review under the substantial evidence test. Thus, although the petitioners in this case contend that the Ebbetts Pass Court “independently reviewed the sufficiency of the discussion to determine whetherit satisfied CEQA’s information disclosure requirements,”this characterization is not accurate. (SC Brief, p. 23.) On the second majorissue in Ebbetts Pass, the Court found that the substantial evidencetest applied to the respondent’s assessment ofpredicate facts which determinedthe extent of analysis required. (/d. at 954-955.) The Court consequently rejected a claim that the relevant analysis of potential future herbicide impacts wasinsufficiently detailed, holding that the respondent’s determination that more detailed analysis would be speculative was supported by substantial evidence. (/d. at 955.) Thus, Ebbetts Pass illustrates how courts should apply the rule in Vineyard: Where CEQAprovides a clear procedural rule, courts must exercise their independent judgment to determineif it was followed; where CEQA 10 BRIEF OF AMICUS CURIAE delegates discretion to the lead agency to decide how to comply with CEQA’sgeneral requirements, a challenge must be reviewed for substantial evidencein the record ofproceedings. In Neighborsfor Smart Rail vy. Exposition Metro Line Const. Authority (2013) 57 Cal.4th 439 (“Smart Rail’), the Court confronted the issue of what baseline or baselines a lead agency mayuse as the foundation for an EIR’s environmental analysis. At first blush, the issue would seem to be predominately procedural, since the CEQA Guidelines provide very specific direction as to what temporal baseline should normally be used for measuring impacts. (Guidelines §§ 15125(a), 15126.2(a).) An agency’s choice of baseline also necessarily may have a profound effect upon the content and conclusions of the EIR. Nevertheless, both the plurality opinion and concurring and dissenting opinions makeit clear that the choice of baseline involves issues of agency judgment, and is therefore reviewed underthe substantial evidence test. (Smart Rail, supra, 57 Cal.4th 439. 457, 470.) This holding follows the Court’s prior decision in Communities For A Better Environment v. South Coast Air Quality ManagementDist. (2010) 48 Cal.4th 310 (“CBE v. SCAQMD”), 328 where the Court concluded “[A]n agency enjoysthe discretion to decide, in the first instance, exactly how the existing physical conditions without the project can mostrealistically be measured, subject to review, as with all CEQA factual determinations, for support by substantial evidence.” While Smart Rail and CBE v. SCAQMDdonotdirectly address the divergent standards of review for “predominately procedural” and “predominantly factual” questions, they do strongly affirm that issues involving the exercise of factual judgmentor discretion by a lead agency must necessarily be reviewed as substantial evidence questions. 11 BRIEF OF AMICUS CURIAE D. The Majority of Existing Appellate Decisions Treat Allegations of Insufficient Information as Substantial Evidence Questions Although the dichotomy between predominately factual and predominately procedural issues is now recognizedin theory byall courts, there is a remarkable lack of uniformity in the manner in which these distinctions are applied. Indeed, even within individual appellate districts, seemingly conflicting statements or applications of these rules can be found. Consistent with Vineyard and Sierra Club, 7 Cal.4th 1215,all courts appearto agree that certain major facial inadequacies in an EIR mayrise to the level of a failure to proceed in the mannerrequired by law,i.e., errors involving a complete omission of required information, or analysis that is hopelessly conclusory on its face. Beyond this, however, there is a lack of unanimity as to how allegederrors involving the amount or quality of information in an EIR are reviewed. Some decisionsstate that omission of required information from an EIR constitutes a failure to proceed in the mannerrequired by law, without delving into the subtler question of what quantity or quality of information may be “required.” Others implicitly suggest that alleged errors of omission in an EIR should be reviewedas procedural errors, without distinguishing between complete omissionsandlesser deficiencies. (Preserve Wild Santee v. City ofSantee (2012) 210 Cal.App.4th 260, 275; Rialto Citizensfor Responsible Growth v. City ofRialto (2012) 208 Cal.App.4th 899, 923-924; Ballona Wetlands LandTrust v. City ofLos Angeles (2012) 201 Cal.App.4th 455, 468.) The decision underreview here, from the Fifth Appellate District, is perhapsthe most explicit in recognizing the distinction between complete 12 BRIEF OF AMICUS CURIAE omissions of information andless drastic alleged inadequacies. The court expressly distinguished cases “where the EIR does not discussa topic that a statute, regulation or judicial opinion says must be discussed,” from claims that the information presented on a mandatory subject is simply insufficient. (Sierra Club v. County ofFresno, Opn. at p. 23.) The court nevertheless concludedthat an independent review standard applies to both types of claims. In the court’s words, where the issueis a claim is one ofinsufficient information, “Drawingthis line and determining whether the EIR complies with CEQA’s information disclosure requirements presents a question of law subject to independent review by the courts.” (/d.) As support for this proposition, the court cited its prior decision in Madera Oversight Coalition, Inc. v. County ofMadera (2011) 199 Cal.App.4th 48, 102 andits pre-Vineyard decision in Associated ofIrritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1391 (“A.Z.R.”). Other Fifth District decisionsalso treat the sufficiency of an EIR as a procedural issue, without distinguishing between complete omissions of information and lesser inadequacies. (See, e.g., Citizens Opposing a Dangerous Environmentv. County ofKern (2014) 228 Cal.App.4th 360, 382.) Other appellate decisions state a range of differing views. At one end of the spectrum, some decisions hold that the adequacy of an EIRis inherently a fact-based question that is reviewed underthe substantial evidence test. This view is summarized in Tracy First v. City of Tracy (2010) 177 Cal.App.4th 912, as follows: An EIRis an informational document which provides detailed information to the public and to responsible officials about significant environmental effects of a proposed project. It must contain substantial evidence on those effects and a reasonable range of alternatives, but the decision whether or not to approvea project is up to the agency. Review is confined to whether an EIR is sufficient as an informational 13 BRIEF OF AMICUS CURIAE document. ‘The court must uphold an EIR ifthere is any substantial evidence in the record to support the agency’s decision that the EIR is adequate and complies with CEQA’. (177 Cal.App.4th at 934, emphasis added, quoting Defend the Bay v. City ofIrvine (2004) 119 Cal.App.4th 1261, 1265.) Additional decisions stating this broad-brush rule include Santa Clarita Organizationfor Planning the Environmentv. City ofSanta Clarita (2011) 197 Cal.App.4th 1042, 1059 and Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 26. Other courts take a more nuanced approach. While most would find that a complete failure to address a mandatory topic amounts to procedural error subject to independent review, a majority expressly disagree that less drastic alleged deficiencies should normally be reviewed as procedural errors. As one court hasstated it: “However, where the agency includes the relevant information, but the adequacy of the information is disputed, the question is one of substantial evidence.” (San Diego Citizenry Group v. County ofSan Diego (2013) 219 Cal.App.4th 1, 12 (emphasis in original); see also Clover Valley Foundation v. City ofRocklin (2011) 197 Cal.App.4th 200, 243 [“Disagreements regarding the adequacy of an EIR’s impactanalysis will be resolved in favor of the lead agency if substantial evidence supports the lead agency’s determination.”’].) Manyother decisions expressly recognize that many or most types of disputes concerning the adequacy of an EIR ultimately turn on predominantly factual questions, and hold that such issues are reviewed underthe substantial evidence test. These issues include “the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied.” (City of Long Beach, supra, 176 Cal.App.4th 889, 898; accord, Town ofAthertonv. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314, 349; 14 BRIEF OF AMICUS CURIAE Save Panoche Valley v. San Benito County (2013) 217 Cal.App.4th 503, 514; Banning Ranch Conservancy v. City ofNewport Beach (2012) 211 Cal.App.4th 1209, 1230; North Coast Rivers Alliance v. Marin Municipal Water District Board ofDirectors (2013) 216 Cal.App.4th 614, 642; Oakland Heritage Alliance v. City ofOakland (2011) 195 Cal.App.4th 884, 898; Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 596.) Ironically, this view is also stated in some previous decisions of the Fifth District. (See Bakersfield Citizens, supra 124 Cal.App.4th 1184, 1198 [“The substantial evidence standard is applied to conclusions, findings and determinations. It also applies to challenges to the scope of an EIR’s analysis of a topic, the methodology used for studying an impact and the reliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions.”]; San Joaquin Raptor Rescue Center v. County ofMerced (2007) 149 Cal.App.4th 645, 654 [same].) Other courts have explicitly held that challenges to an EIR concerning “the amountor type of information contained in the EIR, the scope of the analysis, or choice of methodology are factual determinations reviewed for substantial evidence.” (Santa Monica Baykeeper, supra, 193 Cal.App.4th 1538, 1546 (emphasis added); California Native Plant Soc. v. City ofSanta Cruz (2009) 177 Cal.App.4th 957, 986.)! ! The court in CNPS v. Santa Cruz also acknowledged that “An EIR may be foundlegally inadequate - and subject to independent review for procedural error - where it omits information that is both required by CEQA and necessary to informed decisionmaking. (177 Cal.App.4th 957, 986, emphasis added.) The court’s subsequent statement that disputes over “the amountor type of information contained in the EIR, the scope ofthe analysis, or the choice of methodology”are subject to the substantial evidence test (/d.) thusclarifies that what information is required in an EIR is typically dependent upon a lead agency’s interpretation of relevantfacts. 15 BRIEF OF AMICUS CURIAE An early statement of this broad view is found in Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 1616-1620. After an extended discussion of prior case law, the Barthelemy court concluded by quoting with approvala leadingtreatise: Challenges to an EIR’s adequacy usually involve questions such as the proper scopeofthe analysis, the appropriate methodology for studying an impact, the reliability or accuracy ofthe data, the validity of technical opinions, and the feasibility of further studies. These determinations are ultimately based on factual issues. ... The question fora reviewing court should then be limited to whether the agency’s reasonsfor proceedingasit did are supported by substantial evidence.” (1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (CEB 1995) § 12.5,at pp. 464-465.) The failure to include information in an EIR normally will rise to the level of a failure to proceedin the mannerrequired by law only if the analysis in the EIR is clearly inadequate or unsupported. (/d. at 1620.) (See also National Parks & Conservation Assn., supra, 71 Cal.App.4th 1341, 1353.) Barthelemy relies in part on Laurel Heights, supra, 47 Cal.3d 376, 407-408 and 421-422, where this Court expressly warnedthat judicial review of an EIR wasnot to extend to fine judgments aboutthe thoroughnessor accuracyof studies relied on in an EIR. (Barthelemy, supra, 38 Cal.App.4th 1609, 1619-1620.) Other decisions state generally that failures to satisfy the informational requirements of CEQA constitute a failure to proceed in the mannerrequired by law,but actually apply a substantial evidence test to critical questions concerning the scope and content of the EIR. (See, e.g., Cherry Valley Pass Acres and Neighborsv. City ofBeaumont(2011) 190 Cal.App.4th 316, 327-328, 348-356 [upholding adequacy ofEIR discussion of mitigation measures and alternatives based substantial evidence]; see also Barthelemy, supra, 38 Cal.App.4th 1609, 1617-1618 [discussing Kings 16 BRIEF OF AMICUS CURIAE County Farm Bureau v. City ofHanford (1990) 221 Cal.App.3d 692, 722- 724.].) E. Judicial Review of Adequacy Must Focus on the Validity of Agency Judgments and Determinations Concerning the Content of the EIR; These Determinations are Reviewed Underthe Substantial Evidence Test Given this patchworkofexisting judicial decisions, the standard of review applicable to individual claims of EIR inadequacy is a matter of acknowledged uncertainty. (See, e.g., 2 Kostka & Zischke, Practice Under the California Environmental Quality Act (CEB 2014), § 23.35, p. 23-44.) Nevertheless, a correct principle can be discerned from the majority appellate opinions discussed above, from this Court’s prior decisions, and from principles codified in CEQAitself concerning the standard of review applicable to legislative and administrative decisions generally. The correct principle to apply to most types of disputes concerning the adequacy of an EIR,i.e., disputes concerning “the amount or type of information contained in the EIR, the scope ofthe analysis, or choice of methodology,” must be reviewed underthe substantial evidence test because such disputes necessarily turn on underlying facts and matters ofjudgment and informed opinion. (Santa Monica Baykeeper, supra, 193 Cal.App.4th 1538, 1546; City ofLong Beach, supra, 176 Cal.App.4th 889, 898.) This principle is consistent with this Court’s recognition that where the content of an EIR depends upon factually based predicate determinations by the lead agency, the predicate determination is reviewed “only for substantial evidence.” (Ebbetts Pass, supra, 43 Cal.4th 936, 954.) This is in turn consistent with this Court’s longstandingrule that courts may not overturn certification of an EIR “on the groundthat an opposite conclusion would have been equally 17 BRIEF OF AMICUS CURIAE or more reasonable.” (/n re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143, 1162; Citizens ofGoleta Valley v. Board ofSupervisors (1990) 52 Cal.3d 553, 564.) Those courts that would routinely evaluate adequacy of an EIR as a question of law or proper procedure simply fail to recognize the extent to which almost every determination affecting the content of an EIR turns on predicate factual questions andthe exercise of informed judgment by the lead agency. In following sections, this brief will review the CEQA Guidelines and related decisional law which establish general principles governing preparation of EIRs. It is apparent that the Guidelines and case law cannot be reduced to clear standards that dictate particular results in particular cases as a matter of law. Instead, the Guidelines recognizethat virtually every step in the preparation of an EIR involves the exercise of informed judgmentby the lead agency andits staff, based on relevant facts, technical knowledge, experience andpractical considerationstailored to the specific project under review. Historically and for important public policy reasons, administrative decisions of this type have always been reviewed by courts only for support by substantial evidence. The discretion vested in public agencies by CEQAshould not be usurped by courts under guise of independently reviewing the “sufficiency” or “adequacy” of an EIR that addresses all the mandatory elements required by statute or by the Guidelines. Judicial review therefore must focus on whether a lead agency’s predicate judgments and determinations affecting the scope and content of the EIR are supported by substantial evidence. The beginning point of 18 BRIEF OF AMICUS CURIAE judicial inquiry in every case must be the question of whether the determination to include or exclude allegedly relevant information depended uponresolution of factual issues or the exercise of informed judgmentby the lead agency. If the answerto either of these questionsis yes, the agency’s determination is reviewed only for support by substantial evidence. In other words, “The question for a reviewing court should then be limited to whether the agency’s reasons for proceedingas it did are supported by substantial evidence.” (Barthelemy, supra, 38 Cal.App.4th 1609, 1620.) The court should conclude that the agency hasfailed to proceed in the manner required by law only in those relatively few cases in which (1) a subject clearly required to be discussed by CEQAorthe Guidelines is not discussedat all; (2) the discussion of a required subjectis so vague, conclusory or incoherentthat it “fails to disclose the ‘analytic 399route the ... agency traveled from evidenceto action;’” (Vineyard, supra, 40 Cal.4th 412, 4452; see also Laurel Heights, supra, 47 Cal.3d 376, 403- 405 [conclusory discussion of alternatives]; or (3) the EIR excludes or misrepresents relevant information based on an erroneouslegal premise 2 In Vineyard, this Court condemnedan analysis which consisted of “a jumble of seemingly inconsistent figures for total area demand and surface water supply, with no plainly stated, coherent analysis ofhow the supplyis to meet the demand.” (Vineyard, supra, 40 Cal.4th 412, 445.) A discussion that is entirely self-contradictory might well be ofas little usefulness as one that is patently conclusory. However, caution should be exercised in such cases. Lead agencies are often faced with conflicting data when preparing an EIR, and reporting of conflicting data is not inconsistent with CEQA’s informational purposes. It is the responsibility of a lead agency to reach someultimate conclusion about the severity of impacts and the need for mitigation, unless the available information is too speculative. (Guidelines § 15145.) However,the fact that a reader may find the discussion of conflicting data confusing or the EIR inartful in expressing its conclusions should notrise to the level of a failure to proceed in the manner required by law. 19 BRIEF OF AMICUS CURIAE (City ofMarina v. Board ofTrustees ofthe California State University (2006) 39 Cal.4th 341, 355-356). The foregoing judicial determinations must, of course, take place within the larger context of settled rules governing adjudication ofCEQA claims. The relevant issue mustfirst have been timely raised, and the respondent given an opportunity to respond, during the administrative proceedings. (Pub. Resources Code § 21177(a); North Coast Rivers Alliance, supra, 216 Cal.App.4th 614, 623-624.) The EIR is presumed adequate, and the petitioner bears the burden of establishing otherwise. (San Diego Citizenry, supra, 219 Cal.App.4th 1, 11; Al Larson Boat Shop, Inc. v. Board ofHarbor Commissioners (1993) 18 Cal.App.4th 729, 740.) The reviewing court may not impose requirements going beyond those explicitly stated in CEQA and the CEQA Guidelines. (Pub. Resources Code § 21083.1; Berkeley Hillside Preservation v. City ofBerkeley (2015) 60 Cal.4th 1086 (2015 WL 858265at p. 12.) Finally, the error must be shownto be prejudicial. (Smart Rail, supra, 57 Cal.4th 439, 516; Pub. Resources Code § 21005(b).) HI. CEQA, THE CEQA GUIDELINES AND CASE LAW DO NOT PROVIDE CLEAR AND UNAMBIGUOUS STANDARDS THAT ALLOW ISSUES OF “SUFFICIENCY” OR ADEQUACYOFAN EIR TO BE RESOLVED AS QUESTIONS OF LAW The conclusion stated aboveis reinforced by a review ofthe Guidelines and case law that public agencies must rely on when preparing an EIR. If public agencies are to be held accountable for proceeding “‘in the mannerrequired by law,” there must be some clear law or procedure to follow. This cannot be said of the complexrealities involved in preparing 20 BRIEF OF AMICUS CURIAE an EIR. Instead, CEQA, the CEQA Guidelines and case law contain a mass of very general, and sometimesconflicting, directives concerning the proper focus and level of detail required in an EIR. Lead agencies are affirmatively required to exercise judgment in determining what informationis relevant, important and appropriate for inclusion in an EIR based on the facts and circumstances unique to each EIR. In this context, it cannot reasonably be held that correctly determining the amountor quality of analysis performed and information offered in an EIR is simply a matter of following correct procedure. A. The Guidelines and Case Law Inherently Require Lead Agencies to Exercise Judgment and to Balance Competing Directives Regarding the Scope and Content of an EIR The required contents of an EJR are stated in CEQA and extensively elaborated in the Guidelines. (Pub. Resources Code § 21100; Guidelines §§ 15120-15190.5.) Although the list of required topics is clear, CEQA and the Guidelines provide few fixed mandatesas to howthesetopics are to be addressed. Instead, the Guidelines state general principles which must be adopted to the specific circumstances of each EIR, based on a lead agency’s best judgment. For example, Guidelines § 15151 - the Guideline most commonly cited as the basic standard for sufficiency of EIRs - providesas follows: An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to makea decision whichintelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts. The courts have not looked for perfection but for adequacy, completenessand a goodfaith effort at full 21 BRIEF OF AMICUS CURIAE disclosure. The foregoing language necessarily invites a host of subjective judgments as to whatconstitutes a “sufficient degree of analysis,” what level of analysis is “reasonably feasible” in specific circumstances, and where one drawsthe line between “exhaustive” analysis or “perfection” versus analysis that is merely adequate, complete and a “good faith effort at full disclosure.” Such questions cannot be answeredas questionsoflaw. Guidelines § 15151 must, of course, be read together with other Guidelines and CEQAitself. No provisions of these, however, provide clear and explicit direction as to how a lead agency must proceed or precisely what quality and quantity of information must be produced in any given situation. Indeed, many provisions identify competing considerations that must be balanced by the agencyin preparing the EIR. Many CEQA Guidelines seem to favor informative but concise discussion over expansive analysis. Public Resources Code § 21003(f) directs that “All persons and public agencies involved in the environmental review process be responsible for carrying out the process in the most efficient, expeditious mannerin order to conservethe available financial, governmental, physical and social resources with the objective that these resources may bebetter applied toward the mitigation of actual significant effects on the environment.” Consistent with this approach, Guidelines § 15006 catalogues an extensive range of measures which agencies should use to reduce delay and paperworkin the environmental review process. Amongtheseare: (1) Complying with the page limits recommended in Guidelines § 15141 (Guidelines § 15006(n)); 22 BRIEF OF AMICUS CURIAE (2) “Preparing analytic rather than encyclopedic environmental impact reports” (Guidelines § 15006(0)); (3) “Mentioning only briefly issues other than significant ones in EIRs”(Guidelines § 15006(p)); and (4) “Emphasizing the portions of the environmental impact report that are useful to decision-makers and the public and reducing emphasis on background material.” (Guidelines § 15006(s).) Asnoted previously, Guidelines § 15141 suggests that an EIR should typically be limited to 150 pages in length, or 300 pages for projects “of unusual scope or complexity.” (Guidelines § 15141.) Otherprovisions of the Guidelines affirmatively require lead agencies to exercise judgmentas to the level of detail included in an EIR. Guidelines § 15146 directs that the “degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity...” (See, e.g., Citizensfor a Sustainable Treasure Island v. City and County ofSan Francisco (2014) 227 Cal.App.4th 1036, 1048, 1051.) Guidelines § 15204(a) provides that “the adequacy of an EIR is determined in terms ofwhat is reasonably feasible, in light of factors such as the magnitudeofthe projectat issue, the severity ofits likely environmental impacts, and the geographic scope ofthe project.” (Guidelines § 15204(a).) There are, however, no more precise standards for applying these general principles. Cumulative impacts, growth-inducing impacts, impacts associated with alternatives, and collateral impacts caused by proposed mitigation measures mustall be considered,but in less detail than impacts of the proposed project itself. (Guidelines §§ 15126.2(d), 15126.4(a)(1)(D), 15126.6(d), 15130(b).) The precise level of detail required, however,still varies upon a wide range offactors. (See, e.g., Banning Ranch, supra, 211 23 BRIEF OF AMICUS CURIAE Cal.App.4th 1209, 1229; City ofLong Beach, supra, 176 Cal.App.4th 889, 904; Guidelines § 15130(b).) The problem ofjudging the level of detail required, and whether someissues maybeleft for more in-depth future study, becomes acute whenthe lead agency is preparing a program EIR or otherwise employing CEQA’stiering principles. (Pub. Resources Code §§ 21093, 21094; Guidelines § 15152; In re Bay-Delta, supra, 43 Cal.4th 1143, 1170-1173; Town ofAtherton, supra, 228 Cal.App.4th 314, 344-347.) Consistent with concerns for preparing EIRs“that are useful to decision-makers and the public,” and for “reducing emphasis on background material” (Guidelines § 15006(s)), technical information must be summarized in the EIR, with more complete data or specialized analysis relegated to technical appendices attached to the EIR. (Guidelines § 15147.) However, an agency that relegates too much supporting information to appendices may be accused of improperly buryingits analysis. (California Oak Foundation v. City ofSanta Clarita (2005) 133 Cal.App.4th 1219, 1239; County ofAmador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 955-956.) Muchcase law also supports a deferential approach to judging the adequacy of an EIR. “The purpose of CEQAis not to generate paper, butto compel governmentatall levels to make decisions with environmental consequences in mind.” (Citizens ofGoleta Valley, supra, 52 Cal.3d 553, 564.) Consistent with this viewpoint, some decisions advise that “an EIR need notincludeall information available on a subject.” (A.L.R., supra, 107 Cal.App.4th 1383, 1397; Al Larson Boat Shop, supra, 18 Cal.App.4th 729, 748.) The Guidelines and case law also provide that “CEQA does not require a lead agency to conduct every test or perform all research, study, and experimentation recommended or demanded by commenters. The fact 24 BRIEF OF AMICUS CURIAE that additional studies might be helpful does not mean that they are required.” (Clover Valley, supra, 197 Cal.App.4th 200, 245; 4..R., supra, 107 Cal.App.4th 1383, 1396; Guidelines § 15204(a).) The reliability of these directives as a guide to action, however,is severely undermined byother provisions of the Guidelines and case law. The words undoubtedly most frequently quoted by challengers to an EIR, and by somecourts finding fault with an EIR,is the directive found within Guidelines § 15144 that “an agency mustuse its best efforts tofind out and disclose all that it reasonably can.” (Guidelines § 15144 (emphasis added); Communitiesfor a Better Environmentv. City ofRichmond (2010) 184 Cal.App.4th 70, 96; Citizens To Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 431.) As originally formulated, Guideline § 15144 was intended to codify a rule of reasonrelating to the specific subject of forecasting of future impacts. (See Cadiz Land Co., Inc. v. Rail Cycle, L.P. (2000) 83 Cal.App.4th 74, 107.) Specifically, forecasting is required only to the extent that could be “reasonably expected underthe circumstances.” (Ud.) However, Guideline § 15144 has often been interpreted more expansively. Taken literally, the above-italicized language in Guidelines § 15144 does indeed suggest that all arguably relevant information that can be obtained must be obtained and placed in an EIR, subject only to some vague boundary of reason. Such a standard provides a rationale for finding almost any EIR inadequate, since imaginative challengers can almost always think of some additional information that might be considered helpful, even if others might regard the information as merely cumulative, redundant or inconsequential. As this Court has recognized, forecasting of impacts can be a highly problematic. “However sophisticated and well-designed a modelis,its 25 BRIEF OF AMICUS CURIAE productcarries the inherent uncertainty of the long-term prediction, uncertainty that tends to increase with the period of projection. For example, if future population in the project area is projected using an annual growth multiplier, a small error in that multiplier will itself be multiplied and compoundedasthe projection is pushed further into the future.” (Smart Rail, supra, 57 Cal.4th 439, 455.) Lead agencies are authorized to forego discussion of unduly speculative subject matter. (Guidelines § 15145.) Such a decision obviously requires some technical understanding ofthe reliability of available data and available forecasting methods. However, if lead agencies are not able to rely on their own judgmentand expertise on such matters, they may only guess whentheir cut-off points for investigation and analysis of various issues in an EIR might be deemed reasonable by a court. Thereis also, at times, tension between the actual language of CEQA,the Guidelines and judicial decisions. For example, Public Resources Code § 21003(c) directs that “Environmental reports omit unnecessary descriptions of projects and emphasize feasible mitigation measures and feasible alternatives to projects.” This is consistent with case law stating that the “core” of an EIRisits discussion of mitigation measures and alternatives. (Citizens ofGoleta Valley, supra, 52 Cal.3d 553, 564.) Guidelines § 15143 advises, however, that “The EIR shall focus on the 3 Guidelines § 15145 provides that “Tf, after a thorough investigation, a lead agencyfinds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate the discussion ofthe impact.” (Guidelines § 15145.) While obviously intendedto limit the reach of Guidelines § 15144, this language also begs the questions ofhow “thorough”the investigation must be before concludingthat further analysis would be speculative, and what standard courts might employ in determining whether the impactis “too speculative” for further discussion. 26 BRIEF OF AMICUS CURIAE significant effects on the environment.” Guidelines § 15125(a) provides that “The description of the environmentalsetting shall be no longer than necessary to an understanding ofthe significant effects of the proposed project andits alternatives.” Some courts have stated, however, “If the description of the environmental setting of the project site and surrounding area is inaccurate, incomplete or misleading, the EIR does not comply with CEQA.” (Clover Valley, supra, 197 Cal.App.4th 200, 219 (emphasis added), citing San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 729.) This judicial command for completeness not only seemsdirectly at odds with the command of Guidelines § 15125(a), but also suggests that in the reviewing court may independently determine factual questions concerning the “accuracy” or correctness of the discussion of the environmentalsetting rather than applying the substantial evidencetest. It also is not always possible to tell when statements in case law should be construedas legal standards governing review of EIRs, or mere observations or advisory statements. For example, in Smart Rail, supra, 57 Cal.4th 439, this Court madeit clear that review of a lead agency’s choice of a baseline for measuring environmental effects is governed by the substantial evidence test. Ud. at 449 and 470-471 (concurring and dissenting opinion).) However, the Court also noted “The public and decision makersare entitled to the most accurate information on project impacts practically possible ....” Ud. at 455.) Although no one questions that lead agencies should strive for accuracy in an EIR to the extent possible, this statement appears to be advisory in nature. There is no indication that the Court intended to abrogate the longstandingrule that courts do not pass on the “correctness” - or, presumably, “accuracy” -- of 27 BRIEF OF AMICUS CURIAE an EIR’s environmental conclusions. (Citizens ofGoleta Valley, supra, 52 Cal.3d 553, 564; Laurel Heights, supra, 47 Cal.3d 376, 392.) Nevertheless, the quoted passage is now widely cited by petitioners to suggest that courts should independently evaluate the accuracy of information or methodologies employed in preparing an EIR. B. Lead Agencies are Entitled to Consider Costs, Delays and Other Feasibility Considerations Guidelines §§ 15151, 15204(a) and some case law indicate that lead agencies may consider such feasibility factors as costs, delay, the sheer massofdata or analysis involved, and the limitations of existing data sources and methodologies in determining what degree of analysis is necessary and “reasonably feasible” in the EIR. (Guidelines §§ 15151, 15204(a), 15364; National Parks, supra, 71 Cal.App.4th 1341, 1364.) Lead agencies are also required to consider efficiency, and make constant determinations as to whenpast studies or reports mayberelied on, and when updated investigation and analysis is required. (Pub. Resources Code § 21003.) Clearly these are factors which require a high degree ofjudgment based on specific facts. Such judgments also clearly cannot be reviewed as questions of law. The difficulty of reasonably weighing and balancing feasibility and efficiency considerations increases immeasurably if lead agencies must anticipate that a court may weigh these factors differently when reviewing an EIR. (See, e.g., San Franciscansfor Reasonable Growth, supra, 151 Cal.App.3d 61, 74 [“However, expediency should play no part in an agency’s efforts to comply with CEQA.”].) 28 BRIEF OF AMICUS CURIAE C. Whether an EIR Adequately Informs Decisionmakers and the Public Goes to the Issue of Prejudice, Not Abuse of Discretion; Such a Test is Too Inherently Subjective to be Used as a Legal Standard for Judging the Initial Question of Adequacy of the EIR An additional area of confusion exists in the oft-invoked statement that a prejudicial abuse of discretion may be found where the omission of information in an EIR “precludes informed public decisionmaking or informed public participation.” Properly construed, this language andits variations go to the question of whethertheerror at issue is prejudicial. (See, e.g., Smart Rail, supra, 57 Cal.4th 439, 463, quoting Kings County Farm Bureau, supra, 221 Cal.App.3d 692, 712; A.LR., supra, 107 Cal.App.4th 1383, 1391-1392; Pub. Resources Code § 21005(a).) Error alone, whether procedural or substantive, is not sufficient to invalidate an EIR. (Pub. Resources Code § 21005(b); Smart Rail, supra, 57 Cal.4th 439, 463-464 [use of baseline unsupported by substantial evidence, although erroneous, did not substantively affect EIR’s impact analysis]; Save CuyamaValley v. County ofSanta Barbara (2013) 213 Cal.App.4th 1059, 1073-1074; Rialto Citizens, supra, 208 Cal.App.4th 899, 926-927.) As the real party in interest in this case has noted, the test for prejudice cannot be conflated with the question of legal adequacyitself. (Friant Ranch Reply Brief, pp. 10-15.) To do so would beto inject yet another essentially subjective and unpredictable elementinto the standard of review. Humanexpectations and human experience vary widely as to what quantity of information and what levelofreliability and detail is required to permit truly “informed” decisionmaking. From a project opponent’s perspective, there may be no end to information that is deemed essential, at 29 BRIEF OF AMICUS CURIAE least if there is any possibility that additional information will show the project in an unfavorable light.4 Others, however, may recognize a point of diminishing returns far earlier in the information gathering process, and feel adequately informed with far less exhaustive analysis or detail. This is particularly true where additional investigation or analysis may trend towards informational dead-ends, guessworkor speculation rather than hard facts, or where feasibility considerations of cost and delay comeinto play. This Court has previously recognized that lead agencies bear the primary responsibility for determining what informationis best suited to realistically informing the public and decisonmakers abouta project’s impacts. (Smart Rail, supra, 57 Cal.4th 439, 457, 470 (concurring and dissenting opinion). Such exercises in judgmentand discretion are reviewable under the substantial evidence test. (/d.) 4 Another problem arising from use of a subjective standard is that issues that appeared minoror eventrivial to all concerned during the administrative process may be credited with unwarranted significance when reviewed in the hothouse atmosphere of adversary litigation, and with hindsight influenced by extensivebriefing. It is not unusual for determined project opponents to deluge a lead agency with last minute comments asserting innumerable alleged technical flaws in an EIR,allowinglittle time to determine which alleged flawsaretrivial, and which might qualify as substantive. Typically such comments focus on perceived weak points in an EIR’s analysis, even where these issues may well be tangential or even irrelevant to previously identified issues ofpublic concern. Theincentive to engagein suchtactics is obviously all the greater if petitioners believe they are entitled to independentjudicial review onthe significanceofallegedly omitted information. 30 BRIEF OF AMICUS CURIAE D. Conclusion - Determining the Appropriate Scope and Level of Detail in an EIR is Not a Matter of Merely Following Correct Procedure; Such Questions Must Be Reviewed Under the Substantial Evidence Test The point of the foregoing discussionis not to criticize the CEQA Guidelines or decisional law for failure to develop clear, unambiguous and easily-followed rules for preparing EIRs, but to demonstrate that because of the innumerable different types of projects and the infinite array of variable factual backgroundsthat must be addressed in EIRs, this would be an impossible task. Consequently, application of the general rules stated in CEQA,the Guidelines and case law inherently depends upon analysis and interpretation of facts, circumstances and technical considerations, and may lead to conclusionsthat are subject to reasonable debate. For these very reasons,it cannot be held that preparing an “adequate” EIR is merely a matter of following procedure. To suggest that courts should routinely treat questions of EIR adequacy ofsufficiency as alleged proceduralerrors subject to independentjudicial review is to carry reviewing courts far out of their traditional role of interpreting and applying laws, and thrust them into the roles of factfinders, expert witnesses and policymakersall in one. This should not and cannot be done. IV. EXISTING PRINCIPLES OF LAW AND SOUND PUBLIC POLICY MANDATERELIANCE ON THE SUBSTANTIAL EVIDENCE TEST The petitioners in this case, and undoubtedly many other advocates, contendthat there are sound public policy reasons for applying an independent judgmentstandard when reviewing the adequacy of EIRs. In their view, independent judicial review is necessary to ensure that CEQAis 31 BRIEF OF AMICUS CURIAE “scrupulously followed,” and that the public will thus be “fully informed” as to the basis for the lead agency’s decision. (SC Briefat p. 18, citing Laurel Heights, supra, 47 Cal.3d 376, 392.) This argumentis not well founded. To begin with, the argument presupposesa level of distrust, if not outright disrespect, for the competence and integrity of public agencies that is inconsistent with the presumption of regularity, and also not supported by fact nor any statutory provision or discernable policy found in CEQA. Beyondthis, it runs afoul of a variety of additional considerations discussed below. A. The Court Reviews a Lead Agency’s Decision to Certify an EIR - That Decision is Entitled to the Same Deference as Any Other Decision Involving Agency Discretion and Judgment Asan initial matter, many litigants and some courts appear to forget that the issue beinglitigated in the challenge to an EIRis not the sufficiency or adequacy of the EIRperse, but rather whether the lead agency abusedits discretion in certifying the EIR. (Pub. Resources Code §§ 21100, 21151(a); Guidelines § 15090(a).) This is consistent with the express language of Pub. Resources Code § 21168 and 21168.5, which provide for review only of a “determination, finding or decision” of a public agency. Reviewing courts thus do not sit as editorial boards deciding how the EIR should have been written. The decision to certify an EIR is therefore entitled to the samelevel of deference as the agency’s decision on the merits of the project. (See, e.g., Citizens ofGoleta Valley, supra, 52 Cal.3d 553, 564 [“We maynot set aside an agency’s approvalof an EIR on the ground that an opposite conclusion would have been equally or more reasonable.”]; Jn re Bay-Delta, supra, 43 Cal.4th 1143, 1161-1162.) The reviewing court 32 BRIEF OF AMICUS CURIAE “must resolve reasonable doubts in favor of the administrative finding and decision.” (Laurel Heights, supra, 47 Cal.3d 376, 393.) It necessarily followsthat all the subordinate decisions and determinations involved in determining the scope and content of an EIRareentitled to similar deference,i.e., should be reviewed under the substantial evidencetest. B. Substantial Evidence Review is Consistent with the Statutory Standard of Review Specified in CEQA Application of substantial evidence review to most questions concerning the adequacy ofan EIRis also consistent with the “abuse of discretion” standard expressly prescribed by Pub. Resources Code § 21168 and 21168.5, and applied in mandamusactions challengingvirtually all other types of agency decisions that involved elements ofjudgment and discretion. For reasons already discussed, review for“failure to proceed in the manner required by law”is appropriate only where the governing law affords the respondentno genuinediscretion in the matter, and the court can concludethat a specific procedural mandate has been violated on the basis of undisputed facts. The Legislature has discretion to alter the applicable standard of review for policy reasons whenit wishes to do so. For example, Code of Civil Procedure § 1094.5(c) recognizes that courts may apply an independent judgmentstandard in certain classes of administrative mandamusactions, such as those involving vested property rights. (See, e.g., Halaco Engineering Co. v. South Central Coast Regional Com. (1986) 42 Cal.3d 52, 63-64.) However, despite the importancepetitioners attach to “scrupulous” enforcement of CEQA,the Legislature has madeno provision for heightened judicial scrutiny concerning the adequacy of EIRs. 33 BRIEF OF AMICUS CURIAE C. Separation of Powers Asthis Court has previously noted, a deferential standard of review is generally mandated by separation ofpowers considerations that constrain judicial oversight of legislative bodies and duly empowered administrative agencies generally. (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 572.) To allow courts to conduct independent review of the “sufficiency”of a certified EIR would in practice empowercourts to determine “not whether the administrative decision wasrationalin light of the evidence before the agency, but whether it was the wisest decision given all the available scientific data.” (/d.) This is precisely the type of inquiry which the law forbids. (/d.) D. Courts Lack the Technical Expertise and Complete Knowledge of Background Facts Necessary to Independently Evaluate Lead Agency Determinations Madein Preparation of an EIR To allow courts to independently review questions of sufficiency of an EIR also inevitably invites courts to substitute their own non-expert judgments for those of qualified public agencies on any numberofthe predicate decisions which go into determining the content of an EIR. This Court has long cautioned against precisely this type of second guessing. (Western States Petroleum, supra, 9 Cal.4th 559, 572-573.) As noted in Laurel Heights, supra, 47 Cal.3d 376, 393: “We have neither the resources norscientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so.” Notwithstanding that our society is now well into the Internet age, these cautionary statements remain valid. Questions of adequacy of an EIR ultimately boil down to what additional information, or different 34 BRIEF OF AMICUS CURIAE information, should have been provided. For a court exercising independent judgment, it may be tempting to assumethat existing methodologies or data sources could easily have been used to provide additional information. Often, however, this is simply not true. Technical expertise includes knowing the capabilities of available models and methodologies, and also whattheir limitations are. It also means understanding relevant limitations on the quantity, quality andreliability of data sources and potential investigative techniques. Technical expertise also may be required to understand counter-intuitive cause and effect relationships, and consequently what information or avenues of investigation should be pursued, and which are unlikely to produce significant information. In technical matters, a lay-person’s supposedly logical assumptions or “common sense” may prove woefully incorrect. Courts that apply independent judgment where such questionsare implicitly involved not only exceed their judicial mission, but also risk rendering decisions that are simply wrongonthefacts. E. Review Under the Substantial Evidence Test is Not Inconsistent with Vigorous Enforcement of CEQA’s Basic Mandates Althoughpetitioners in this case contend that independentjudicial review is desirable and necessary to ensure that CEQAis “scrupulously followed,” they also concede that many types of claims concerning the adequacy of EIRs are governed bythe substantial evidence test. (SC Brief at p. 15.) In view ofthe case law discussed previously, this concession is well taken. Indeed, even the most vociferous advocate must concedethat review of manyofthe most critical determinations affecting the content of an EIR are governedby the substantial evidence test. For example, there 35 BRIEF OF AMICUS CURIAE can be no dispute that an agency’s determination that a particular environmental effect is less than significant is reviewed for substantial evidence only. (Eureka Citizensfor Responsible Development v. City of Eureka (2007) 147 Cal.App.4th 357, 372-373.) This determination, however, has a profound effect on the content of an EIR, since detailed study and consideration of mitigation measures are required only where an impact is determined to be significant. (/d. at 376; Guidelines §§ 15126.2(a), 15126.4(a)(3), 15128.) Similarly, determinations as to whether potential mitigation measuresoralternatives are feasible and should be evaluated in depth the EIR are governed by the substantial evidencetest. (See, e.g., San Diego Citizenry, supra, 219 Cal.App.4th 1, 16-17; Cherry Valley, supra, 190 Cal.App.4th 316, 350.) So also are questions of environmental baseline, as noted above. (Smart Rail, supra, 57 Cal.4th 439, 457, 471; CBE v. SCAQMD, supra, 48 Cal.4th 310, 328.) Where a prior EIR has been prepared, an agency’s determination that no supplemental EIR or other additional environmental review is requiredat later stages of a project is also normally reviewed underthe substantial evidencetest, although this mayresult in curtailed discussion ofallegedly important new information. (Citizens Against Airport Pollution v. City of San Jose (2014) 227 Cal.App.4th 788, 797-798; Treasure Island, supra, 227 Cal.App.4th 1036, 1049-1050.)° > This Court is currently reviewing a subsidiary issue as to whether the substantial evidence test or independent review standard applies whereit is contendedthat a previously approved project has been so substantially changedas to constitute a new project altogether for purposes of further CEQAreview. (Friends ofthe College ofSan Mateo Gardens v. San Mateo County Community College Dist., No. 8135892.) 36 BRIEF OF AMICUS CURIAE To date, this Court and other courts have not found the deference afforded to these types of agency determinations under the substantial evidencetest to be an obstacle to enforcement of CEQA. It would thus seem highly inconsistent to hold that the independent judgmentstandard is nevertheless necessary to effectively review other, less far-reaching agency determinations concerning the content of an EIR, such as whether additional discussion of oneparticular type of noise impact was required or additional soil testing should have been performed. Having such a patchwork system of review wouldalso dolittle to promoteclarity in the law. Instead, it would merely complicate debates over which sorts of alleged deficiencies in an EIR are reviewed asfailures to proceed in the mannerrequired by law, and which are reviewed underthe substantial evidencetest. The substantial evidencetest also is not, as some advocatesfear, entirely toothless or a rubber stamp for agency decisions. This Court and other courts have had no difficulty finding an abuse of discretion under the substantial evidence standard where agency determinations were based on faulty logic, unsupported rationalizations or clear misinterpretation of the law. (See, e.g., Smart Rail, supra, 57 Cal.4th 439, 460-462 [rejecting agency choiceofbaseline]; Masonite Corporation v. County ofMendocino (2013) 218 Cal.App.4th 230, 238-239 [rejecting conclusion that potential mitigation measure for agricultural impacts was infeasible]; Gray v. County ofMadera (2008) 167 Cal.App.4th 1099, 1116-1117.)6 Whatthe ° Petitioners suggest that disputes involving “interpretation” of CEQA’s requirements are fundamentally legal in nature, and therefore subject to independentreview. Amici do not disagree with this proposition. However, disputes that turn solely on interpretation of specific CEQA Footnote continued on next page 37 BRIEF OF AMICUS CURIAE substantial evidence test does preclude is courts exercising independent judgment on matters over which they have noinherent advantagein knowledge, experience or technical understanding over the respondentlead agency that actually prepared the EIR. That is as it should be. F. The Public Comment Function of CEQA Provides an Adequate Meansof Ensuring that Public Concernsare Addressed There is no question that application of an independent judgment standard encourages CEQAlitigation. Petitioners simply havea better chance of success on such claims. Judicial enforcement of CEQA, however,is not an endin itself, nor should it be a preferred way of ensuring achievement of CEQA’sinformational purposes. Membersofthe public whofeel that an EIR is ignoring or understating relevant information have a built-in remedy within CEQAitself other than litigation. This remedy is the public comment and response procedure mandated by Public Resources Code § 21091(d) and Guidelines § 15088. (See Twain Harte Homeowners Assn. v. County ofTuolumne (1982) 138 Cal.App.3d 664, 678-679.) This procedure requires that the draft EIR be circulated for public review and commentfor at least 30 days, and often longer, before being finalized. (Pub. Resources Code § 21091(a).) The lead agency must respondto these comments in writing in the final EIR. (Guidelines § 15088(d).) “... [T]he major environmental issues raised when the lead agency’s positionis at variance with recommendations or objections raised in comments must be addressed in detail giving reasons why specific comments and suggestions Footnote continued provisions or the Guidelines, rather than on how muchor what quality of information is required, are relatively rare. 38 BRIEF OF AMICUS CURIAE were not accepted. There must be good faith, reasoned analysis in response.” (Guidelines § 15088(c); Laurel Heights ImprovementAssn.v. Regents ofthe University ofCalifornia (1993) 6 Cal.4th 1112, 1124 (“Laurel Heights IT’); Flanders Foundation, supra, 202 Cal.App.4th 603, 615.) Where the comments or responses themselvesaddsignificant new information to the EIR, a revised draft EIR (or portions thereof) must prepared andrecirculated for further public commentbefore the EIRis finalized. (Pub. Resources Code § 21092.1; Guidelines § 15088.5; Laurel Heights IT, supra, 6 Cal.4th 1112, 1126-1130.) This comment-and- response requirementis a statutory fail-safe intended to help assure that environmentalissues are fully and openly addressed. (City ofLong Beach, supra, 176 Cal.App.4th 889, 904-905.) Project opponents or other interested persons whobelieve that important information is missing from an EIR can and should call this to the attention of the lead agency through the proceduresspecifically included in CEQA for that purpose. As stated in Public Resources Code § 21003(f) (emphasis added), “A// persons ... involved in the environmental process[are] responsible for carrying out the process in the most efficient, expeditious manner....””» Consequently, comments from public “shall be made as soon as possible in the review of environmental documents...” (Pub. Resources Code § 21003.1(a).) Indeed, failure to make timely requests or objections raises legitimate questions about whetherthe allegedly missing information is as important to informed public decisionmaking as objectors may claim in subsequentlitigation. If a respondent agencyfails to make the required good faith responses, then judicial intervention may indeed be warranted. If the agency provides a responsethatis still unsatisfactory to the challenger, the court will at least have an explanation of the agency’s reasons for 39 BRIEF OF AMICUS CURIAE rejecting the request for additional information, and may judge whether the agency’s decision is adequately supported. G. Application of the Substantial Evidence Test is Most Consistent with Public Policies Favoring Certainty and Predictability Asa final matter, the use of a substantial evidence standard rather than an independent review standard for most challenges to EIRs promotes certainty and rationality. Certainty and predictability in CEQAlitigation are an important public policy concern, and one on which the Legislature has taken a clear position. As discussed in Berkeley Hillside Preservation, supra, 60 Cal.4th 1086, Pub. Resources Code § 21083.1 specifically directs that courts “shall not interpret this division or the state guidelines adopted pursuant to Section 21083 in a manner which imposes procedural or substantive requirements beyondthose explicitly stated in this division or in the state guidelines.” (Ud., 2015 WL 858265at p. 12.) Thelegislative history of this section discloses that its express purpose wasto “limit 999 66?judicial expansion ofCEQA requirements’” and “to reduce the uncertainty andlitigation risksfacing local governments andproject applicants by providing a ‘safe harbor’to local entities and developers who comply with the explicit requirements of the law.” (/d. quoting Assembly Committee on Natural Resources, Analysis of Sen. Bill No. 722 (1993-1994 Reg.Sess.) (emphasis added).) This Court and lowercourts have also frequently noted the potential hardships and disruption imposed by CEQAlitigation, and corresponding Legislative concern for certainty. (/d.; Committeefor Green Foothills v. Santa Clara County Bd. ofSupervisors (2010) 48 Cal.4th 32, 50; Friends ofShingle Springs Interchange, Inc. v. County ofEl Dorado 40 BRIEF OF AMICUS CURIAE (2011) 200 Cal.App.4th 1470, 1491; County ofOrange v. Superior Court (2003) 113 Cal.App.4th 1, 12-13.) Permitting judicial review of the “sufficiency” of an EIR to be conducted de novo as a question of law is inimical to certainty or predictability during either the preparation of an EIR orin litigation onits merits. As discussed previously, CEQA andthe Guidelines contain few explicit directives that can be uniformly applied in all situations. Instead, the statute and Guidelines generally identify factors which must be considered, but require the lead agency to balance these various factors based on the specific facts of the case. It is, of course, not too much to demandthat public agencies support their decisions with substantial evidence. Public agencies can and should be held responsible for assuring that there is some reasonable basis for their actions. It is entirely another matter, however, to suggest that courts should routinely be able to revisit decisions as to whatis left in and whatis left out in an EIR using their own independent judgment. This not only precludes certainty and predictability, but provides a strong incentive for petitioners to initiate and pursue CEQAclaimson the eternal hope that the reviewing court may simply disagree with the lead agency. This is a sure invitation to use of CEQAlitigation as a tool for “the oppression and delay ofsocial, economicor recreational development and advancement,”rather than for genuine vindication of the law. (Citizens ofGoleta Valley, supra, 52 Cal.3d 553, 576.) V. CONCLUSION For the reasonsdiscussedin this brief, this Court should find that the substantial evidence standard of review generally governsissues of sufficiency or adequacy of an EIR. The focus ofjudicial inquiry should be 41 BRIEF OF AMICUS CURIAE on the predicate decisions and determinations that a lead agency must inevitably make in determining the contents of an EIR. Where these determinations are supported by relevant facts, technical expertise or reasonable balancing offactors specified in CEQA and the CEQA Guidelines, courts should not second guess the lead agency by applying an independent judgment standard. Omissionsof significant information from an EIR mayrise to the level of a failure to proceed in the manner required by law in limited situations, i.e., where an EIR completely omits discussion of a required subject; where purported discussion is so conclusory, internally contradictory or unsupportedthatit “fails to disclose the ‘analytic route the ... agency traveled from evidenceto action.’” (Vineyard, 40 Cal.4th 412, 445); or where the omission or misrepresentation is clearly based on an erroneousinterpretation of the law. DATE: April 2, 2015 By: ME.LELae Margaret M. Sohagi Philip A. Seymour THE SOHAGI LAW GROUP,PLC Attorneys for Amici Curiae LEAGUE OF CALIFORNIACITIES, CALIFORNIA STATE ASSOCIATION OF COUNTIES, ASSOCIATION OF CALIFORNIA WATER AGENCIESand CALIFORNIA SPECIAL DISTRICTS ASSOCIATION W:AC\999\00 1100353554.DOC 42 BRIEF OF AMICUS CURIAE CERTIFICATION OF WORD COUNT The text of the BRIEF OF AMICUS CURIAE consists of 11,788 words, including footnotes. The undersigned legal counsel has relied on the word count of the Microsoft Word 2013 Word processing program to generate this brief. (Cal. Rules of Court, Rule 8.204(c)(1).) DATE: April 2, 2015 By. /@~ Ler Margaret M. Sohagi Philip A. Seymour THE SOHAGI LAW GROUP, PLC Attorneys for Amicus Curiae LEAGUE OF CALIFORNIACITIESand the CALIFORNIA STATE ASSOCIATION OF COUNTIES W:A\C\999\00 1100353554.DOC i BRIEF OF AMICUS CURIAE PROOFOF SERVICE STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES_ ) At the timeofservice, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 11999 San Vicente Boulevard, Suite 150, Los Angeles, California 90049. On April 2, 2015, I served true copies of the following document(s) described as APPLICATION OF LEAGUE OF CALIFORNIACITIES, CALIFORNIA STATE ASSOCIATION OF COUNTIES, CALIFORNIA SPECIAL DISTRICTS ASSOCIATION AND ASSOCIATION OF CALIFORNIA WATER AGENCIES FOR LEAVE TO FILE AMICUS BRIEF; AMICUS CURIAE BRIEF IN SUPPORT OF REAL PARTYIN INTERESTontheinterested parties in this action as follows: BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresseslisted in the Service List and laced the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with The Sohagi Law Group, PLC’s practice for collecting and processing corres ondence for mailing. On the same day that the correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty of perjury under the lawsofthe State of California that the foregoing is true and correct. Executed on April 2, 2015, at Los Angeles, California. Cheron J. McAleece SEY. Printed Name Signature il BRIEF OF AMICUS CURIAE SERVICE LIST Sara Hedgpeth-Harris LAW OFFICE OF SARA HEDGPETH-HARRIS 5445 E. Lane Ave. Fresno, CA 93727 Telephone: (559) 233-0907 Facsimile: (559) 272-6046 Email: Sarah.Hedgpethharris@shh- law.com Daniel C. Cederborg Bruce B. Johnson Jr. OFFICE OF THE FRESNO COUNTY COUNSEL 2220 Tulare Street, Suite 500 Fresno, CA 93721 Telephone: (559) 600-3479 Facsimile: (559) 600-3480 Email: BJohnson@co.fresno.ca.us Bryan N. Wagner WAGNER & WAGNER 7110N.Fresno St., Suite 340 Fresno, CA 93721 Telephone: (559) 224-0871 Facsimile: (559) 224-0885 Email: Bryan@wagnerandwagner.com Clerk of the Court CALIFORNIA COURT OF APPEAL FIFTH DISTRICT 2424 Ventura Street Fresno, CA 93721 Telephone: (559) 445-5491 Clerk ofthe Court SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO 1130 O Street Fresno, CA 93721 Telephone: (559) 457-1900 iii ATTORNEYS FOR PLAINTIFFS AND APPELLANTSSIERRA CLUB,ET AL. ATTORNEYSFOR RESPONDENT COUNTY OF FRESNO ATTORNEY FOR REAL PARTYIN INTEREST FRIANT RANCH,L.P. APPELLATE COURT BRIEF OF AMICUS CURIAE SERVICE LIST James G. Moose Tiffany K. Wright Laura M.Harris REMY MOOSE MANLEY,LLP 555 Capitol Mall, Suite 800 Sacramento, CA 95814 Telephone: (916) 443-2745 Facsimile: (916) 443-9017 Email: JMoose@rmmenvirolaw.com Marcia L. Scully, General Counsel METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA P.O. 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ATTORNEY FOR AMICUS CURIAE THE METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA ATTORNEYFOR AMICI CURIAE ASSOCIATION OF IRRITATED RESIDENTS, MEDICAL ADVOCATES FOR HEALTHYAIR,and COALITION FOR CLEAN Al ATTORNEY FOR AMICUS CURIAE BUILDING INDUSTRY LEGAL DEFENSE FOUNDATION ATTORNEY FOR AMICUS CURIAE CALIFORNIA ASSOCIATION OF ENVIRONMENTAL PROFESSIONALS ON BEHALF OF AMICUS CURIAE CEQA RESEARCH COUNCIL BRIEF OF AMICUS CURIAE
