SIERRA CLUB v. COUNTY OF FRESNO (FRIANT RANCH)

Amicus Curiae Brief of North Coast Rivers Alliance

Cal.April 13, 2015

SUPREME COURT COPY No. 8219783 10.586 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA SIERRA CLUB,et al., Plaintiffs and Appellants, SUEEEME COUR: he ff EOS. Pel be COUNTYOF FRESNO, APR 18 201 Frank A. MeGuire Clerk Defendant and Respondent, and Weputy FRIANT RANCH,L.P., Real Party In Interest and Respondent After a Published Decision by the Court of Appeal, filed May 27, 2014, Fifth Appellate District Case No. F066798 Appealfrom the Superior Court of California, County of Fresno Case No. 11CECG00726 Honorable Rosenedo A. Pejia, Jr. APPLICATION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF AMICUS CURIAE NORTH COAST RIVERS ALLIANCE IN SUPPORT OF PLAINTIFFS AND APPELLANTS SIERRA CLUB, ET AL. *Stephan C. Volker (CSB #63093) Daniel P. Garrett-Steinman (CSB #269146) Law Offices of Stephan C. Volker 436 14th Street, Suite 1300 Oakland, California 94612 Tel: 510/496-0600 Fax: 510/496-1366 Attorneys for Amicus Curiae North Coast Rivers Alliance RECEIVED APR - 62015 CLERK SUPREME COURT TABLE OF CONTENTS TABLE OF AUTHORITIES .............. 0.0... cee cee ll APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF 2000.teens I INTRODUCTION AND SUMMARY OF ARGUMENT ........... 3 STATEMENTOF FACTS ..........0..0.0.00.0 00. cc cece eens 3 ARGUMENT........... 0.0...eeens 3 I. WHETHERAN EIR IS SUFFICIENT TO I. HI. PROMOTE INFORMED DECISIONMAKING IS A QUESTION OF LAW REVIEWED DENOVO1.nts7 FACTUAL FINDINGSIN AN EIR ARE REVIEWED FOR SUBSTANTIAL EVIDENCE..... 13 FRIANT RANCB’S ARGUMENT WOULD REQUIRE COURTS TO IGNORE AN EJIR’S SUFFICIENCY AS AN INFORMATIONAL DOCUMENT..... Lecce cnet eee ee encase 19 CONCLUSION .......0.0.0eens23 CERTIFICATE OF COMPLIANCE .......................04. 24 S A S e e al e TABLE OF AUTHORITIES California Cases Ebbetts Pass Forest Watch v. California Department of Forestry and Fire Prevention (2008) 43 Cal.4th 936. 2.2.0... - eee eee eters 6, 17, 18, 19 Citizens ofGoleta Valley v. Board ofSupervisors (1990) 52 Cal.3d 553. 0...renee 15 Inre Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143. 20.0... eee eee eee 5-6, 15 Laurel Heights Improvement Association v. Regents of University ofCalifornia (1988) 47 Cal.3d 376. 1.22... eee eee ee etree passim Laurel Heights Improvement Association v. Regents of University ofCalifornia (1993) 6 Cal.4th 1112. 2.0.2 eeeeeeeee 16, 17 Santiago County WaterDist. v. County ofOrange (1981) 118 Cal.App.3d 818. .......---- ee ee eee 5, 8, 12, 13, 22 Save Round Valley Alliance v. County ofInyo (2007) 157 Cal.App.4th 1437... 2... eee eee eee eee 14-15 Sierra Club v. State Board ofForestry (1994) 7 Cal.4th 1215. 2.606.7 Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4th 412. 2.0... eeeeee passim Statutes Public Resources Code § 21000 et seg (SCEQA”). «2.2 ee eee ee eee eee eee passim -ii- Regulations Title 14, California Code of Regulations (“CEQA Guidelines”’) § 15126.2(a) 2...ceeeens 20 Other Authori California Rules of Court Rule 8.520(f) 2...cectee eens 1 -1ii- APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF Pursuant to Rule 8.520(f) of the California Rules of Court, North Coast Rivers Alliance (“NCRA”) requests leave to file the attached Amicus Curiae Brief in support of plaintiffs and appellants Sierra Club,et al. NCRA’s proposed brief addresses the question whether de novo or substantial evidence review applies to a claim that an Environmental Impact Report’s (“EIR’s”) discussion of air quality impacts is insufficient to promote informed decisionmaking, as required by the California Environmental Quality Act (“CEQA”), Public Resources Code section 21000 et seq. Proposed amicus NCRA is an unincorporated association of conservation leaders from throughout the north coast of California engaged in the submission of comments and expert testimony on land and water resource management issues. NCRA seeks compliance bylocal, state and federal agencies and private industry with state and federal environmental laws. NCRA’s members use California’s north coast rivers for fishing, boating, swimming, andscientific study. They are vitally interested in assuring that public agencies fully disclose the potentially significant impacts of projects on watersheds and their dependentfish and wildlife. NCRA is notaffiliated with any party to this action, and writes solely to offer an environmentalperspective on the significant issues of public welfare at stake in this dispute. Counsel for amicus NCRA are familiar with the questions involvedin the case and the scope of their presentation. Counsel for amicus successfully represented plaintiffs and appellants Vineyard Area Citizens for Responsible Growth, Inc., before this Court in Vineyard Area Citizensfor Responsible Growth, Inc., et al. v. City of Rancho Cordova (“Vineyard”) (2007) 40 Cal.4th 412, a case thatalso addressed the standard of review applicable to challenges to an EIR’s mf| / STEPHAN C. VOLKER Attorney for proposed Amicus Curiae North Coast Rivers Alliance: adequacy. Dated: April 6, 2015 Re INTRODUCTION AND SUMMARYOF ARGUMENT This Court must determine the standard ofreview that applies to judicial analysis of a claim that an EIR lacks information sufficient to promote informed decisionmaking. Real Party in Interest Friant Ranch, L.P. (“Friant Ranch”) argues that “decisions about the type, scope, and amountof analysis to include in EIRsare inherently factual, so they should be reviewed under the substantial evidence standard.” Opening Brief on the Merits (“OB”) 3. But this Court has long recognized that de novo review applies to claims that an EIR’s analysis of a topic is inadequate to promote informeddecision-making. Friant Ranch confuses such informational adequacy claims with arguments about predicatefactual questions affecting the scope of an EIR’s analysis. Moreover, its overbroad argument would eviscerate CEQA’s informational purpose. STATEMENT OF FACTS NCRA adopts and incorporates the Statement ofFacts submitted by plaintiffs and appellants Sierra Club,etal. ARGUMENT In Vineyard, this Court noted that “an agency may abuseits discretion under CEQAeither by failing to proceed in the manner CEQA providesor by reaching factual conclusions unsupported by substantial evidence,” andexplainedthat in “evaluating an EIR for CEQA compliance, then, a reviewing court must adjust its scrutiny to the nature of the alleged defect, depending on whetherthe claim is predominantly one of improper procedureor a dispute overthe facts.” Vineyard, 40 Cal.4th at 435. Improper procedure claims are reviewed de novo; factual disputes are subject to the substantial evidence standard. Jd. This Court held that whether an EIR includedthe “information mandated by CEQA”was a question ofprocedure reviewed de novo;by contrast, questions of “whether adverse effects have been mitigated or could be better mitigated” were questions of fact reviewed for substantial evidentiary support in the administrative record. Id. This case presents this Court with the opportunity to refine that distinction in cases where a petitioner argues that an EIR contains insufficient information on a project’s impacts. The question whether an EIR “include{s] detail sufficient to enable those who did not participate in its preparation to understand andto consider meaningfully the issues raised by the proposed project” is a question of law reviewed de novo. Laurel Heights Improvement Association v. Regents of University ofCalifornia (“Laurel Heights I’) (1988) 47 Cal.3d 376, 405. This standardis formulatedin a variety ofways andillustrated by manycases. See, e.g., id. at 404, 406 (“Without meaningful analysis of alternatives in the EIR, neither the courts nor the public can fulfill their proper roles in the CEQA process”; EIR’s cursory analysis legally inadequate); Vineyard, 40 Cal.4th at 440, 447 (EIR’s failure to provide an “analytically complete and coherent” analysis of impacts related to uncertain future water supplies was a “procedural. . . flaw”); Santiago County Water Dist. v. County ofOrange (“Santiago”) (1981) 118 Cal-App.3d 818, 831 (“The EIR must contain facts and analysis, not just the bare conclusions of a public agency. An agency’s opinion concerning matters within its expertise is of obvious value, but the public and decision-makers, for whom the EIR is prepared, should also have before them the basis for that opinion so as to enable them to make an independent, reasoned judgment”). — By contrast, where an agency makesfactual determinationsin the EIRto justify truncating its analysis about a required topic— for example by stating that an alternative is infeasible for particular factual reasons so further analysis is inappropriate — those findings are reviewed underthe substantial evidence standard. Compare Laurel Heights I, 47 Cal.3d at 405 (discussion of alternatives legally inadequate notwithstanding supposed infeasibility of alternatives because no such claim ofinfeasibility appeared in the EIR) with In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (“In re Bay-Delta’) (2008) 43 Cal.4th 1143, 1167 (EIR’s conclusionthat alternative could not meet project objectives and thus did not warrant further study was supported by substantial evidence). This Court drew precisely such a distinction in Ebbetts Pass Forest Watch v. California DepartmentofForestry and Fire Prevention (“Ebbetts Pass”) (2008) 43 Cal.4th 936, 954. In Ebbetts Pass, this Court distinguished challenges to “the correct legal standard to determine the scope of analysis” in an EIR — “a predominantly procedural question”courts “review independently” — from challenges 9 “the correctnessof factual findings predicate to the standard’s application,” whichraise a “predominantly factual matter” courts “review only for substantial evidence.” Jd. Friant Ranch would have this Court instead hold that so long as an EIR contains any discussion of an issue, the scope of discussionis reviewed under the substantial evidence standard. OB 23-36. But such a conclusion conflicts with the foregoing cases in whichthis Court held that an EIR that discussed an issue — but in a way that failed to promote informed decisionmaking — waslegally inadequate. This Court’s precedents distinguish between claimsthat an EIR’s treatmentofan issueis analytically incomplete and therefore insufficient to promote informed decisionmaking — which claims are reviewed de novo — and claimsthat an EIR makesan incorrect predicate factual claim — which are reviewed under the substantial evidence standard. In essence, Friant Ranch argues that the first type of challenge,that of analytical adequacy, does not exist. In its view, if an EIR coversall topics required by statute — no matter how superficially — then all questions about the adequacyofits discussion are reviewed deferentially. But the implication of Friant Ranch’s overbroad argumentis that a one-sentence discussion ofair quality impacts that merely stated that “the Project will havesignificant air quality impacts” would only be reviewed by a court for factual support under the substantial evidence standard. That would require courts to ignore the legal question of whether such an abridged analysis promotes the informed decisionmaking CEQA requires. I WHETHERAN EIR IS SUFFICIENT TO PROMOTE INFORMED DECISIONMAKINGIS A QUESTION OF LAW REVIEWED DENOVO This Court held in Vineyard that whether an EIR includes the “information mandated by CEQA”is subject to de novo review because an agencythat approves an EIR lacking such information has “failed to proceed in the manner required by CEQA.” Vineyard, 40 Cal.4th at 435 (citing Sierra Club v. State Board ofForestry (1994) 7 Cal.4th 1215, 1236, and Santiago, 118 Cal.App.3d at 829). In Laurel Heights I, this Court emphasizedthat the information CEQA mandatesisthat“sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” Laurel Heights I, 47 Cal.3d at 405. Other CEQA imperatives, such as the requirements that an EIR must both “contain facts and analysis, not just the agency’s bare conclusionsor opinions”and also “disclos[e] . . . the analytic route the agencytraveled from evidenceto action,” are in essence further refinements ofthis basic concept. Jd. at 404 (citation,ellipsis, and internal quotation marks omitted). Here, this Court should, consistent with Laurel Heights I and Vineyard, expressly hold that the question whether an EIR promotes informed decisionmaking — or, put differently, “include[s] detail sufficient to enable those whodid not participate in its preparation to understand and to consider meaningfully the issues raised by the proposedproject” — is a question oflaw reviewed de novo. Laurel Heights I, 47 Cal.3d at 405; Vineyard, 40 Cal.4th at 435. Examination of this Court’s rulings in these two benchmark cases confirms the wisdom ofstaying their prudent course. Laurel Heights I involved an EIR for a biomedical research facility. 47 Cal.3d at 403. The alternatives analysis was cursory;it stated that “no alternative sites” on campus were considered andthat existing off-campus space was not of “sufficient size to accommodate”the project. /d. In a claim conceptually indistinguishable from Friant Ranch’s position here,’ the respondent in Laurel Heights I “argue[d] that alternatives had already been considered and foundto beinfeasible during the University’s various internal planning processes andthat an EIR need not discussa clearly infeasible project alternative. The Regents apparently believe[d] that, because they . . . were already fully informedasto the alleged infeasibility of alternatives, there was no need to discuss them in the EIR.” Jd. at 404 (emphasis added). This Court emphasized,in italics, that the “Regents miss the critical point that the public must be equally informed.” Id. This Court held that “the discussion in the EIR of project alternatives [wa]s /egally inadequate ' The essence of Friant Ranch’s argumentis that because Fresno County had already determined internally that it would be infeasible to determine the magnitude ofthe project’s humanhealth impacts, there was no reason to include such an analysis in the EIR. OB 41 (“if the appellate court had reviewedthe sufficiency of the EIR’sair quality analysis for substantial evidencein light of the whole administrative record, the court ... would have . . . understood that the type of ‘correlation’ analysis it envisions is very likely not feasible, or even possible, to conduct”). Any distinction between the positions of Friant Ranch here and the Regents in Laurel Heights — that it was sufficient to internally dismiss supposedly infeasible alternatives without identifying them in the EIR — is one without a difference. -9. under CEQA”because an “EIR must contain facts and analysis, not just the agency’s bare conclusions or opinions,” and also “must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” Jd. at 404-405 (emphasis added). This Court’s ruling in Laurel Heights I that the alternatives analysis was /egally inadequate despite the “purported discussion in the EIR”is directly contrary to Friant Ranch’s claim that “a lead agency’s decisions regarding the . . . scope and amount of information and analysis to include in an EJR”are subject to review under the substantial evidence standard. /d. at 403; OB 22-23. Unable to distinguish this controlling ruling, Friant Ranch ignores this obvious shortcomingin its argument.” Vineyard likewise adheresto the principle that challenges to the analytical adequacy of a discussion are reviewed de novo. Vineyard involved a challenge to the discussion of water supplies in an EJR for a large residential and commercial development. Vineyard, 40 Cal.4th at 422-423, 427. This Court distilled four “principles of analytical adequacy 2 See OB 24 n. 7 (acknowledging both that there was a discussion of alternatives in the Laurel Heights I EIR andthatthat discussion waslegally inadequate, but not attempting to explain how that holding is consistent with its position that the proper scope of an EIR’s discussionis always subject to review under the substantial evidence standard). -10- under CEQA”for an EIR’s “analysis of future water supplies” from four Court of Appeal decisions.’ Jd. at 429-430. This Court then held that the County’s failure to comply with one of these requirements was a “procedural . . . flaw” reviewed de novo,not a “factual flaw” reviewed under the substantial evidence standard. Jd. at 447 (emphasis added). More specifically, this Court found that the EIR’s “substitut[ion of] a provision precluding further developmentfor identification and analysis of the project’s intended and likely water sources” prevented the EIR from “adequately . . . inform[ing] decision makers and the public” and therefore “the County erred procedurally.” Id. at 444 (emphasis added).* Followingthe strategy it used with this Court’s inconvenient > Theseprinciples include (1) a discussion of the benefits and costs of supplying water; (2) an analysis that accounts for “the impacts of providing water to the entire proposed project”; (3) a disclosure of “likely future water sources, and . . . a reasoned analysis of the circumstances affecting the likelihood of the water’s availability”; and (4) in circumstances where“it is impossible to confidently determine that anticipated future water sources will be available,” an additional “discussion ofpossible replacementsourcesor alternatives to use of the anticipated water, and of the environmental consequences of those contingencies.” Vineyard, 40 Cal.4th at 430-433 (emphasis added). * See also id. at 445 (“The reader attempting to understand the County’s plan for providing waterto the entire . . . developmentisleft to rely on inference and speculation. In this respect, the FEIR water supply discussion fails to disclose ‘the analytic route the agency traveled from evidence to action’ andis thus not ‘sufficient to allow informed decision making’”) (quoting Laurel Heights I, 47 Cal.3d at 404). -l1- decision about alternatives in Laurel Heights I, Friant Ranch simply ignores Vineyard’s holding that an EIR’s incomplete — albeit extensive — discussion of a topic wasinsufficient to allow informed decisionmaking and therefore legally inadequate. Indeed, Friant Ranch makesnoattempt to square that plainly contrary ruling with its argumentthat the scope of an EIR’s analysis is always reviewed for substantial evidence. OB 31 (quoting only thefirst twoofthe three “procedural. . . flaws” found by this Court in Vineyard, 40 Cal.4th at 447, and ignoring this Court’s key holding that the EIR’s discussion was/egally insufficient to promote informed decisionmaking). Thefactthat this Court held that an EIR that discussed water suppliesat length wasnonetheless /egally inadequate becauseit contained key analytical gaps is fatal to Friant Ranch’s position thatall claimsrelating to the scope of an EIR’s discussion are reviewed underthe substantial evidence standard. The lower courts are in accord with this Court. For example, Santiago, which this Court cited with approval in Vineyard, is directly on point. There, the Court found an EIR “legally inadequate” because, even assuming the correctness of the EIR’s bare conclusion aboutfuture water supplies, byitself “the conclusion . . . [wa]s insufficient to allow the EIR to fulfill its informational purpose.” Vineyard, 40 Cal.4th at 435 (first -]2- quotation); Santiago, 118 Cal-App.3d at 831 (second). Thus, even assuming the EIR’s statement about future water supplies was supported by substantial evidence, the agency’sfailure to disclose in the EIR “the basis for [its] opinion” rendered the EIR legally inadequate. Santiago, 118 Cal.App.3d at 831 (emphasis added). In a further holding even more on point, the Court of Appealheld that the EIR waslegally inadequate despite its identification of an adverse impact from increased water demand becauseit did not contain any “information about how adverse the adverse impact will be.” Jd. at 831 (emphasis added). Here, the Court of Appeal similarly held that Friant Ranch’s EIR was legally inadequate because,although it acknowledged humanhealth impacts, it contained no information about“the potential magnitude of the impact on humanhealth.” Opinion 49 (emphasis added). This Court should reaffirm its prior approval of Santiago byaffirming as well the identical holding below. II. KACTUAL FINDINGSIN AN EIR ARE REVIEWED FOR SUBSTANTIAL EVIDENCE Friant Ranch references a laundry list of cases where this Court applied the substantial evidence standard to claims broadly concerning the omission of information from an EIR to support its untenable argument. -13- Notwithstanding Friant Ranch’s overbroad argument,’ the substantial evidencecasesit relies upon can be reconciled with the failure-to-proceed cases discussed above: in the substantial evidence cases the question was the correctness of an expressfactualfinding that an EJR usedtojustify truncating its analysis, posing a clearlyfactual question on review. Moreover, many ofthe cases that Friant Ranch asserts involve an omission of information present instead “a factual dispute over whether adverse effects have been mitigated or could be better mitigated,” a substantial evidence question under both Vineyard and Laurel Heights. Vineyard, 40 Cal.4th at 435; Laurel Heights [, 47 Cal.3d at 393. A prototypical exampleof a factual dispute over the omission of information is an agency’s statement in an EIRthat analysis ofa particular alternative is unnecessary becausethe alternativeis infeasible due to a factual reason such as impossible expenseor failure to meet most project objectives. Whether sucha factualfinding of infeasibility is supported by the record is a factual question reviewed for substantial evidence.® Many of > E.g., RB 12-13 (“Appellants would . . . apply” the standard of whether an EIR “precludes informed decisionmaking and informedpublic participation” to “all claims that an EIR lacks sufficient information on required topics”) (emphasisin original). 6 By contrast, an agency that makesa finding thatis /egally insufficient to establish infeasibility has failed to proceedin the manner required by law. See, e.g., Save Round Valley Alliance v. County ofInyo -14- the cases Friant Ranchcites fall into this category. For example, in In re Bay-Delta, 43 Cal.4th at 1165-1167, the petitioner challenged an EIR’s decision to dismiss a reduced export alternative from further study. The EIR expressly dismissed the alternative as infeasible because it would not meet project objectives; this Court held that the EIR’s factual finding was supported by substantial evidence. Jd. Similarly, in Citizens ofGoleta Valley v. Board ofSupervisors (“Goleta Valley IT’) (1990) 52 Cal.3d 553, 570-575, the petitioners argued that the EIR wrongly failed to consider certain off-site alternative locations, but this Court held that the agency’s finding that such locations were infeasible was supported by substantial evidence.’ (2007) 157 Cal.App.4th 1437, 1464-1465 (EIR’s statementthat alternative wasoutsideits jurisdiction was “insufficient to establish infeasibility” because “even if. . . an act of Congress is requiredto effect” the alternative, “this does not necessarily render the alternative infeasible”; agency failed to proceed as required by law). 7 Ordinarily, the fact that the EIR in Goleta Valley II did not expressly make a finding ofinfeasibility as to the particular proffered alternatives would frustrate informed decisionmaking andthusbea failure to proceed in the manner required by law. As Laurel Heights I explains, “alternatives and the reasons they wererejected . . . must be discussed in the EIR in sufficient detail to enable meaningfulparticipation and criticism by the public.” 52 Cal.3d at 569; Laurel Heights I, 47 Cal.3d at 404-405. However, this Court held in Goleta Valley IT that the unique circumstances presented — including apparent sandbagging bythe petitioner and detailed prior public consideration of alternative locations by the agency — justified the agency’s decision notto release “a full-blown supplemental EIR” merely to provide the public with a factual finding of infeasibility. 52 -15- Friant Ranchalso tries to convert cases that concern “a factual dispute over whether adverse effects have been mitigated or could be better mitigated” into cases about the adequacy of an EIJR’s discussion in orderto support its untenable argument that the informational adequacy of an EIRis reviewed for substantial evidence. For example, Friant Ranch characterizes the Laurel Heights I analysis ofwind dispersion impacts as involving “the sufficiency of the E[R’s discussion.” OB 24 n. 8. But as this Court recognized in both Vineyard and Laurel Heights J itself, that discussion in Laurel Heights I actually concerned the propriety of “the agency’s finding that the project impacts described in the EIR were adequately mitigated,” a question plainly subject to the substantial evidence standard. Vineyard, 40 Cal.4th at 435 (quotation); Laurel Heights I, 47 Cal.3d at 407 (placing the discussion in question under the heading “There is substantial evidence to support the Regents’ finding that the potential environmentaleffects of the project, as it is now defined in the EIR, will be mitigated”) (emphasis added). Friant Ranchessentially argues that this Court repeatedly misunderstood its own holding in Laurel Heights I. Friant Ranch also claims that Laurel Heights Improvement Association v. Regents of University ofCalifornia (“Laurel Heights IT’) Cal.3d at 569-570. -16- (1993) 6 Cal.4th 1112, 1136-1143, applies the substantial evidence standard to a claim that an EIR “fail[ed] to include . . . relevant information.” OB 28. But Laurel Heights II, like the portion ofLaurel Heights Ijust discussed, involved a factual challenge to an agency’sfinding of significance. Since this Court “conclude[d] that substantial evidence support[ed] a determination that the effect of night lighting would be insignificant,” there was no need for the agency to recirculate the EIR to account for that impact. Laurel Heights I, 6 Cal.4th 1112, 1140. The Laurel Heights I holding — that whether a project’s impacts are significant is a factual question — is entirely consistent with the holding of the Court of Appeal below that the analytical completeness of an EIR’s treatment of an issue is a question of law. Friant Ranch attempts to manufacture a conflict where noneexists. Finally, Friant Ranch’s reliance upon Ebbetts Pass, 43 Cal.4th 936, is misplaced. Friant Ranch arguesthat in Ebbetts Pass “all ofpetitioner’s claims that the THPslacked sufficient information raised factual disputes,” but that statement is misleading at best. OB 32. Petitioners claimed that the EIR improperly circumscribed its cumulative impact analysis. Ebbetts Pass, 43 Cal.4th at 949. This Court expressly applied its “independentlegal judgment”to the question of the “geographic scope required of a -17- cumulative impact assessment”;it “agree[d] with plaintiffs that the question[] ofwhat analytical procedure is required . . . is a predominantly procedural question on which weexercise our independentlegal judgment.” Id. at 949, 951. That holding is conceptually identical to the Court of ‘ Appeal’s holding below,andit is fatal to Friant Ranch’s argument. Ebbetts Pass did apply the substantial evidence standard to two claims, but each of those claimsfalls neatly into the two substantial evidence categories delineated above. First, the petitioners challenged the correctness of the agency’s finding that cumulative impacts would be insignificant; this Court held that the substantial evidence standard applied. Id. at 950-951. Such a “factual dispute over whether adverse effects have been mitigated”is a claim clearly subject to the substantial evidence standard. Vineyard, 40 Cal.4th at 435 (quotation omitted). Second, the petitioners challenged the adequacy of the EIR’s discussion of impacts of future herbicide use. This Court’s discussion is instructive: Whether the preparer ofthe three THP’s . . . applied the correct legal standard to determine the scope of analysis is a predominantly procedural question we review independently, but the correctness of factual findings predicate to the standard’s application (for example, delineation of the circumstances under whicha future actionis likely to |occur) is a predominantlyfactual matter we review onlyfor substantial evidence. [1] -18- . . . [P]laintiffs do not dispute that the planned logging, mechanical clearing, and the passage of “one to ten years post harvest” until herbicides may be applied could change the conditions on the ground. Applying the substantial evidence standard to this predominantlyfactual question, we conclude CDF did not abuseits discretion by accepting the plans’ finding that the precise parameters of future herbicide use could not be predicted, and hence failing to demand a more detailed, site-specific analysis of impacts and mitigation measures. Ebbetts Pass, 43 Cal.4th at 954-956 (emphasis added). This Court held that the proper “scope of analysis” of impacts from herbicides presented a legal question, but that the “predicate” “factual finding” of whether a certain analysis is infactfeasible is a substantial evidence question. Jd. In this case, the Court of Appeal held that respondent was required to address notjust the existence of impacts to human health butalso the magnitude of such impacts. Under Ebbetts Pass, the question whether CEQA mandatesa particular “scope of analysis” is a legal question, whereas the question whetherit isfeasible in this case to conduct such an analysis is a factual question. 43 Cal.4th at 954 (emphasis added). I. FRIANT RANCH’S ARGUMENT WOULD REQUIRE COURTS TO IGNORE AN EIR’S SUFFICIENCY AS AN INFORMATIONAL DOCUMENT The one-size-fits-all inflexibility of Friant Ranch’s argumentreveals its fallacy. Friant Ranch either ignoresortrivializes contrary regulations and case law. For example, it argues that the Guidelines section that -19- specifies what an air quality analysis should includeis an “advisory directive,” and notes that no other statutory or regulatory sections mandate a particularform ofair quality discussion. Reply Brief on the Merits (“RB”) 22-23 (discussing use of“should” in Guidelines section 15126.2(a)), 26 (arguing the EIR’s discussionof air quality is adequate “assuming arguendo that this directive is mandatory rather than purely advisory”); OB 38-39 (arguing that CEQA doesnot expressly require agencies to disclose anything about the magnitude of impacts on humanhealth). Friant Ranch even argues that courts cannot introduce any requirements beyond those expressly stated in CEQA’stext or the Guidelines. OB 38-39; RB 23-24. The implication of Friant Ranch’s argumentis that, because no statute or regulation mandates a particularform or depth of discussion of air quality impacts, an EIR that ignored the “advisory” Guidelines suggestions about scope of discussion and merely stated that “the Project will have significant air quality impacts” would only be reviewed by a court for factual support underthe substantial evidence standard. RB 22. Friant Ranch would have courts simply ignore the legal question ofwhether such a truncated analysis promotes the informed decisionmaking CEQA requires. Friant Ranch’s argumentis refuted by commonsense and overruled bythis Court’s contrary andcorrect holdings in Laurel Heights I and Vineyard. -20- Asexplained, in Laurel Heights this Court reviewed an EIR’s cursory discussion ofalternatives de novo for conceptual completeness and found it wanting. 47 Cal.3d at 403-407. The respondent Regents askedthis Court to focus instead on whetherits “internal” decision that alternative locations were “infeasible” was supported by the record, but this Court held to the contrary that “[e]ven if the Regents are correct in their conclusion that there are no feasible alternatives to the Laurel Heightssite, the EIR is nonetheless defective under CEQA”becauseit did not “contain analysis sufficient to promote informed decision making.” /d. at 404. Yet if Friant Ranch’s argument were the law, de novo review would have been inappropniate in Laurel Heights I, and this Court would have only reviewed the EIR’s vague statements of infeasibility in its two-paragraph alternatives analysis for substantial evidentiary support in the administrative record. But this Court rejected such a holding, because it would improperly “countenancea result that would require blind trust by the public” in the agency’s conclusions,a result directly at odds with “CEQA’s fundamental goal that the public be fully informedas to the environmental consequences of action by their public officials.” Jd. Friant Ranch’s position that an EIR need only comply with the barest literal translation of the Public Resources Code and CEQA Guidelines to be -21- legally sufficient also defies Vineyard. There this Court distilled four “principles for analytical adequacy” of an analysis of future water supplies despite noting that “[nJeither CEQAitself, nor the CEQA Guidelines, nor any of this court’s decisions address this question specifically.” 40 Cal.4th at 428-430. Friant Ranch’s position would have required this Court to instead conclude that the EIR waslegally sufficient becauseit did not conflict with “CEQAitself, [Jor the CEQA Guidelines.” Id. Friant Ranch complains that if courts are allowed to determine whether an EIR’s discussion is analytically adequate, agencies “will have no way of knowing whethertheir EIR includes sufficient information on a given topic.” OB 12. But any reasonablelay person could have told respondentthat acknowledging the presence of an issue while ignoringits magnitude does not make for a coherent analysis. Or respondent could have asked a lawyer familiar with Santiago for guidance; that case held that “Tw]hat is needed is some information about how adverse the adverse impactwill be.” 118 Cal.App.3d at 831. Such commonsense analysisis precisely what the Court of Appeal found lacking. Opinion 49 (EIR wrongly omitted discussion of“the potential magnitude of the impact on humanhealth”) (emphasis added). -22- CONCLUSION This Court should affirm the decision below and hold that whether an EIR’s analysis of a topic is sufficient to promote informed decisionmaking presents a question of law reviewed de| Dated: April 6, 2015 Respectfy|lysubmitted, ( tee~ ; ‘STEPFIAN C. VOLKER Attorney for Amicus Curiae North Coast Rivers Alliance By: -23- CERTIFICATE OF COMPLIANCE In accordance with Rules 8.520 subdivision (b)(1) and 8.204 subdivisions (b)(4) and (c)(1), California Rules of Court, I certify that the Amicus Curiae Brief ofNorth Coast Rivers Alliance, together with its application for leavetofile this brief, is in at least 13-point proportional type and contains 4937 words. Dated: April 6, 2015 Attorney for Amicus Curiae North Coast Rivers Alliance -24- PROOF OF SERVICE BY UNITED STATES POSTAL SERVICE I am a citizen of the United States of America; I am overthe age of 18 years and not a party to within entitled action; my business addressis 436 14th Street, Suite 1300, Oakland, CA 94612. On April 6, 2015, I served the below-named document: APPLICATION TO FILE AMICUS CURIAE BRIEF AND BRIEF OF AMICUS CURIAE NORTH COAST RIVERS ALLIANCE IN SUPPORT OF PLAINTIFFS AND APPELLANTS SIERRA CLUB, ET AL. by placing true copies thereof enclosed in sealed envelopes with postage thereon fully prepaid, in the United States mail at Oakland, California, addressedas set forth below (CCP §1012, 1013, and 1013(a)). I am familiar with the practice of this firm for the collection and processing of correspondence for mailing with the United States Postal Service. In accordance with the ordinary course of business, the above- mentioned document(s) would have been deposited with the United States Postal Service on the same day on whichit was placed at Law Offices of Stephan C. Volker for deposit, and addressedto: Sara Hedgpeth-Harris Law Office of Sara Hedgpeth-Harris 5445 E. Lane Avenue Fresno, CA 93727 Attorney for Plaintiffs and Appellants Sierra Club, Revive the San Joaquin, League of Women Voters of Fresno Bruce B. Johnson,Jr. Zachary S. Redmond Office of Fresno County Counsel 2220Tulare Street, Suite 500 Fresno, CA 93721 Attorneys for Defendants and Respondents | County of Fresno, Fresno County Board of Supervisors -25- James G. Moose Tiffany Kristine Wright Remy Moose Manley LLP 555 Capitol Mall, Suite 800 Sacramento, CA 95814 Attorneys for Real Party in Interest and Respondent Friant Ranch,L.P. California Court of Appeal Fifth Appellate District 2624 Ventura Street Fresno, CA 93721-3004 The Honorable RosenedoA.Pena,Jr. Superior Court of California County of Fresno 1100 Van Ness Fresno, CA 93724 I declare under penalty of perjury that the foregoingis true and correct and that it was executed April 6, 2015 at Oakland, California. -26-