SIERRA CLUB v. COUNTY OF FRESNO (FRIANT RANCH)Amicus Curiae Brief of South Coast Air Quality Management DistrictCal.April 13, 2015$219783 IN THE SUPREME COURTOF C ALIFORNIA SIERRA CLUB, REVIVE THE SAN JOAQUIN,and LEAGUE OF WOMEN VOTERSOFFRESNO, Plaintiffs and Appellants, Vv. COUNTY OF FRESNO, Defendant and Respondent, and, 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 Appeal from the Superior Court of California, County of Fresno Case No. 11CECG00726 Honorable Rosendo A. Pena,Jr. APPLICATION OF THE SOUTH COAST AIR QUALITY MANAGEMENTDISTRICT FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE IN SUPPORT OF NEITHER PARTY AND [PROPOSED] BRIEF OF AMICUS CURIAE Kurt R. Wiese, General Counsel (SBN 127251) *Barbara Baird, Chief Deputy Counsel (SBN 81507) SOUTH COAST AIR QUALITY MANAGEMENTDISTRICT 21865 Copley Drive, Diamond Bar, CA 91765 Telephone: 909-396-2302; Facsimile: 909-396-2961 Email: bbaird@aqmd.gov Counsel for [Proposed] Amicus Curiae, SOUTH COAST AIR QUALITY MANAGEMENTDISTRICT RESEIVED APR = @ 2015 _ CLERKSUPREMECOURT TABLE OF CONTENTS APPLICATION FOR LEAVETOFILEamicus curiae brief.............. App-1 HOW THIS BRIEF WILL ASSIST THE COURT......eeeApp-1 STATEMENTOF INTEREST OF AMICUS CURIAE........:ccccccccceceees App-3 CERTIFICATION REGARDING AUTHORSHIP & FUNDING...... App-4 BRIEF OF AMICUS CURIAE 0.0... cei ccccceeeeeseeseeteseeeceensaesesseseeseeseessacens 1 SUMMARYOF ARGUMENT.........cccccccsescssesscsseessecseeesscesseessceserssessstanes 1 ARGUMENT0000. cecccecccecceseeeseesseessaeeecseeceesaecaseecsscsseeeessececsuessessecssscsseceeess 2 I. RELEVANT FACTUAL AND LEGAL FRAMEWORK................. 2 A. Air Quality Regulatory Background.............c.ccccceceeseseeeteeeees2 B. The SCAQMD's Role Under CEQA......ccccecccccesestesescesteeees 6 Il. THIS COURT SHOULD NOT SET A HARD-AND-FAST II. IV. RULE CONCERNING THE EXTENT TO WHICH ANEIR MUST CORRELATE A PROJECT’S EMISSION OF POLLUTANTS WITH RESULTING HEALTH IMPACTB............. 8 THE QUESTION OF WHETHERAN EIR CONTAINS SUFFICIENT ANALYSIS TO MEET CEQA’S REQUIREMENTSIS A MIXED QUESTION OF FACT AND LAW GOVERNEDBY TWO DIFFERENT STANDARDSOF REVIEW.0.cccceeccceeseseseeeeeseeeeeeneseseenseesseseaes 16 A. Standard of Review for Feasibility Determination and Sufficiency as an Informative Document.............0.0.0ccceee 16 Friant Ranch’'s Rationale for Rejecting the Independent Judgment Standard of Review is Unsupported by Case Law.eeeeeeeeeeeeteteeceseaeeeceseeesessecesseseaesacaesasetacseenesacatanenenetaeatesees 23 COURTS MUST SCRUPULOUSLY ENFORCE THE REQUIREMENTS THAT LEAD AGENCIES CONSULT WITH AND OBTAIN COMMENTSFROM AIR DISTRICTS...0onc ccceccescsceececeececseeeeseeseseseeveneneneneneeeeseseseseessessecseneaees 26 CONCLUSIONoooececeeccneeeeeeeeceeeneeseeseeseesaesaesesscesauesseessseeseestrens 29 TABLE OF AUTHORITIES State Cases Association ofIrritated Residents v. County ofMadera (2003) 107 Cal App.4th 1383 oo.cccceseeesseeceereeeseeeeeeeeeeeeeeeseeesseeeteseeneeseens 1,9 Bakersfield Citizensfor Local Control v. City ofBakersfield (2004) 124 Cal.App.4th 1184 onceccccccsecesesseeseseseesseseeeeceseesesseesseeeseeeesseesenaee 9,22 Berkeley Keep Jets Over the Bay v. Board ofPort Commissioners (2007) 91 Cal.App.4th 1344... ccccccccecsseeeseeceeseeeeeseseseseesenatesecsaeens 21, 28 Centerfor Biological Diversity v. County ofSan Bernardino (2010) 185 Cal.App.4th 866. oo. ecccccccsseseneesteeseeeceseesecsseeseeseeeseecsesesesenseesseeeeaee 20 Citizens ofGoleta Valley v. Bd. ofSupervisors (1990) 52 Cal.3d 553 oo... ceecccecccecceccecececeeesceeceseeeeeaeesecaeeceeceeecsaeeenseecsaetesenseseeensseesaes 8-9 County ofAmadorv. El Dorado County Water Agency (1999) 76 Cal.App.4th 931 ooo. ececsessceesceeeeceneceeseseeeseeseeecenesereseesseeseeseseeesseenees 23 Crocker National Bank v. City and County ofSan Francisco (1989) AD Cal.3d 881 occcececcceceesceeeceeeneeeeeeeececsesscecseesaeecaaeeseetenseesseeeeenseseseessees 18 Ebbetts Pass Forest Watch v. California Dept. ofForestry & Fire Protection (2008) 43 Cal.4th 936.000... :cecsecceseeececeeeseeeeeesereeecsesatensetseeeseens 21 Fall River Wild Trout Foundationv. County ofShasta, (1999) 70 Cal.App.4th 482 oo..ccccccccccccesccccceesesenseeseesseeseesseeeenseenssesseesessueensae 27, 28 Gray v. County ofMadera (2008) 167 Cal.App.4th 1099 oooeeeecssescneeecseeseeseeceeeseesaeseeeeeeeesseeaeeeesate 25 Laurel Heights ImprovementAssn.v. Regents ofthe Univ ofCal. ("Laurel Heights I") (1988) 47 Cal.3d 376.0... cecceccccecceceseeeeseceeeeeeseateeseeseseeeees 1, 8, 19, 20, 21, 22 Natural Res. Def. Council v SCAQMD, Los Angeles Superior Court No. BS110792 oo... eccceeseteeeseeseeeseeseneens 12 Neighborsfor Smart Rail v. Exposition Metro Line (2013) ST Cal.4th 439 ooo ccccecesseeseeeeessneeseeeseeeesceeeeneeesesesesesseesesnesstesseseesaeens 15, 20 i State Cases (cont'd) Orange County Air Pollution Control District v. Public Util. Com. (1971) 4 Cal.3d 945 ooocic ecccceeceececeeeeeceecseeaeeceneeesaeeeeaneceaeseeeessesetsseestaeenees 27 Save Our Peninsula Comm. v. Monterey County Bd. ofSupervisors (2001) 87 CalApp.4th 99.000 ceccccscecseesseeecceeseeeaeeeseeceeeeaessseeteeesatsaeseaees 19 Schenck v. County ofSonoma (2011) 198 CalApp.4th 949 oon.ccccccccccccsecsssesseeeseeeseeeseecaeeeseeceseseseseesseenseeerees 26, 27 Sierra Club v. County ofFresno (2014) 226 Cal.App.4th 704 (superseded by grant of review) 172 CalRptr.3d 271 oo. ceceseecseeessresseeeseseeseeeeeeeateeseesenseessseeeeeeesnesseeaes 9, 23 Sierra Club v. State Bd. OfForestry (1994) 7 Cal4th 1215 oooccccccccsseceseeesesseceeecseessecsneeeesnnecesseeecseesseseeeeesssesesaeeess 28 Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587 oo... ccc ecccecccccceecscceeescesesceceseeceaeeseaceenseensessetseeesseeesseeesaes 20 Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) AO Cal.4th 412 oo. eccecccceccececceecceesceeeecersetesesneeeseeeeneees 1, 17, 19, 24, 25, 26 Western Oil & Gas Assn. v. Monterey Bay Unified APCD (1989) A9 Cal.3d 408 ooo. cceccececceceeeceeeneeseeeesseecaecseseeseeceaeeesessaeessesaeeaesatsseessesaeensees 5 California Statutes Health & Saf. Code § 39666... ccccccccsccecsecessseeecssnseseseeesseesecenseeessaeees 5 Health & Saf. Code § 40000... ccccccccsseceesseeeeessseeeeeeeseceeeeeseeenaeees 3 Health & Saf. Code § 40001 oo... cece cccecesecsssesseecesseecseeeseeesseseesseesseeennees 3 Health & Saf. Code § 40410 oo. ceeccccccsseeeesseeesessaeeessecssesseeseesseeesaaeee 3 Health & Saf. Code §§ 40460,et seq oo... cece ccecececesseeeeeeeeseesseeeeesseeesineees 4 Health & Saf. Code § 41508 oo...ccceccccccccccssecssecsseceeseeecseeesessecseecssecneneesenes 5 Health & Saf. Code §§ 42300,et Seq oon... ccccecccecesceeeeseceeseeeeseeeeeessseestseeees 5 Health & Saf. Code § 44320 o....eccccecccecccescesecsscecteceesseeeseecaeensesseessssesseeeanes 5 Health & Saf. Code § 44322 ooo... icceccccccccccsssccceessscceeeeeesaeeecsseesssesecesseneness 5 Health & Saf. Code § 44360 oo...ccc cccccccsecsseesseecesseeeeseesseeseeseeesseeneesensees 5 Pub. Resources Code § 20180.3 ........ccccccccssecsccccenseeecensceeseseeecstecesseeesseees 27 Pub. Resources Code § 21061... cccccccccccsecsceceensececenceeeeseeseseeceesseenssees 19 Pub. Resources Code § 21061 .1 oo...cececcccceeseenceeeecnsseeceeessseeeeeessaaees 16 ill California Statutes (cont'd) Pub. Resources Code § 21080000000... .ccccccccscceessseceeceesssseecseseeeessseeesssseeenseees 6 Pub. Resources Code § 21080.5.0.......ccccccccccccccsssececcessssceesssceeeessesessseseaseees 6 Pub. Resources Code § 21083.) 0... cececcccseesseeseceseeeesseesesenecsseesssensseeseees 26 Pub. Resources Code § 211000000...ccc cccccccsceceeeeesseeeesstesessseseesteeeeseees 27 Pub. Resources Code § 21104000... ccceececcccceesceecteesseeeseeesesseeesseessesees 6, 7 26 Pub. Resources Code §§ 21150-21154oocccceseccesssseeeessseeessrneena 7 Pub. Resources Code § 21151.8 .....eecccccccccceeeseesteeeeseeessessecenseesseenseenssenseees 25 Pub. Resources Code § 21153 ....ccccececcsessseeesseeceeseeeenstesseceeseeeesaes 6, 7, 26 California Regulations Cal. Code Regs., tit. 14, §§ 15000, et seq. ("CEQA Guidelines") CEQA Guidelines § 15050... ccccecceesceseeseeessecesecnseceeseetsceestessesenseesnseene 6 CEQA Guidelines § 150510... cece eeecceceseeeesceeeeeeeeeeesesseeseeneeessesseeseeneeenas 1,6 CEQA Guidelines § 15073 .0......ccccccccecescescessceseceseceesatecesseseeseceenseesssessseseseees 6 CEQA Guidelines § 15086...cc ccccceesceseeeeeseseeeseeeseeeeseessesestssseseesseeesees 6 CEQA Guidelines § 15088 .5 00.0... cc cceceeseeseesseeeeeeseeeseeeeeseesseeesessseseeseeeesaes 28 CEQA Guidelines § 15096...........cccceeccecccceecesceeeseeseseeeeeescesaneceaeeesseessesseeeeneaas 6 CEQA Guidelines § 15126.2......cccccccccecceseeceseeeceneeecseeessesseeceseenseesssenseeenss 25 CEQA Guidelines § 1513)... ceceeceeeeseseeeeeneeeeceeeseceseesseesseeeseenssesseeeens 26 CEQA Guidelines § 151440... ceccceceecceceseecseececeeeeseeenseeseceseeecseseseecsees 19, 24 CEQA Guidelines § 1515)ceececscccceseeeeesceseeeceeseseesetssesseeneens 9,18, 19 CEQA Guidelines § 152040000... cccccccccceeeeeseeseeeseeeeeeeaeeeseeseeseteseeneceatenee 1,9, 21 CEQA Guidelines § 15251... iccccsesceseeeceneeeeessececsseesseeesseecnseeenssenerses 6 CEQA Guidelines § 15366..0........ccccecccceeceeseetesneeeeeeseeccseeeeseeesseeseeeeseeseeeeees 7 CEQA Guidelines § 1538]... cecccceeeeeeeeeessceeeeeseeeeeseseeseseeeseeeneseseeeneeees 6 Cal. Code Regs., tit. 17, § 60104 oo...cccccccceeseeeceeecnssesesaeeenseeenseersreaas 3 Federal Statutes 42 U.S.C. § 7401; CAA § LOL ceccccecscssssssssvsssseseesesssesesssvessssssevesssseeesessisessees 4 42 U.S.C. § 7408; CAA § 108 ..cccccccsssssecssssssesesssesscsssvesessssssesssssssnesesesssseeesee 3 42 U.S.C. § 7409; CAA § 109 voccccccccccsssssssssccsssesecssseesessseeessssssersessssstieeessees 4 42 U.S.C. § 7410; CAA § YO coccccccscecscecssssssecsseesessstecessssessesessssetiesesensseees 4,5 42 U.S.C. § 7412; CAA § 112 ceccecscscecsssssssssecsssevsssssecsessssesscerssseessssssseseserees 5 42 U.S.C. § 7502; CAA § 172 cececccsscesssssssssssssssessessseesessevsessesssenesssesasseees 5,13 42 U.S.C. § 7503; CAA § 173 cecccccssesssscsscsssssssecsssssessesssesssscessieesssssnseves 5, 13 42 U.S.C. § T51a; CAA § 182 .ccccsscesssssssecssssstessssssesserssieessesssiseessessaseesen 13 42 U.S.C. § 7521; CAA § 202 veccccccscesssssssscsessssesscsssesserssteessesseseesssesssessesseses 4 42 U.S.C. § 7543; CAA § 209 vocceccsccssssssssssssssssessesseesssessetssssessssessssessseseesnees 4 42 U.S.C. § 7547; CAA § 213 cecccscssesssssssssssecsssessersseesssssseteesessisteessssseseesssses 4 1V Rules SCAQMDRule 1303 .......c ec cccccseesssceesseeessceeceeeesesseeseseescsseeecesseesessenseeires 7 SCAQMDRule 1401 0.0...cccccssccesseceeseeesssseseeeecseeessseeestteeeeees 5, 8,9 Other Association of Environmental Professionals, 2015 CEQA Statute and Guidelines (2015) (Appendix G, “Environmental Checklist FOP.” ooo. ceecceeseeeeeseesseeceeeeeneseneesenseecaeeeseseaeeeecsaeeersaeesaeeeeessesesssettssseeeeeees 24 CARB, Health Impacts Analysis: PMPremature Death Relationship .............ccccccccccccceceeseees tent etct taste teecccseeens 14 CARB,Health Impacts Analysis: PMMortality Relationship...........cccccccceccccceeceeeene eens eens eeseneetantesensteseetnaeeesaes 16 CARB,Resolution 98-35, Aug. 27, 1998 ooo... ccceeccsscesseesteeeeseesseessseseeeeesens 8 SCAQMD,Air Quality Analysis Handbook..0........ccccccccetcceeeceeseesseeeeenseeees 13 SCAQMD,Final 2012 AQMP (Feb. 2013) ...cccccceccceccesctceeseteetetteeeteeeees 3,11 SCAQMD,Final Subsequent Mitigated Negative Declaration for:Warren E&P, Inc. WTU Central Facility, New Equipment Project (certified July 19, 2011) oo. cecceccccccccescececeeescensteeeetseesenseteesteees 14-15 SCAQMDGoverning Board Agenda, February 4, 2011, Agenda Item 26, Assessmentfor: Re-adoption ofProposed Rule 1315 — Federal New Source Review Tracking System, ........cccccccccccseccetsccsseeeeenssesees 12 SCAQMDGoverning Board Agenda, April 3, 2015, Agenda Item 16, Attachment A o.......ecccceeccceesceeeeceeeeeeeeeeeaeeesceeseesseensseeeesees 7 SCAQMD,Health Risk Assessment Summary form ...............0.ccecccceeseeees 10 SCAQMD,Supplemental Guidelinesfor Preparing Risk Assessmentsfor the Air Toxics “Hot Spots” Information and Assessment Act (AB2588) .....cccccccccccsecccceccccccseecesessnsceusaseesceuersseeeessseteeetecenens 10 U.S. EPA, Ground Level OZone.0.0......0ccececcecceeeccesessnsececserssceessrscseeseceeeess 11 U.S. EPA, Guideline on Ozone Monitoring Site Selection (Aug. 1998) EPA-454/R-98-002 § 5.1.2 oe ececceceeeeeeeteeeseeeeeeseeeeessesssesteeeessseeses 11 U.S. EPA, Health Effects ofOzone in the General Population, FUQUre 9, oo... eee eeeceeeceecenneceeeecececeneeceaeeseseeecaeesaeeaeesaeeesseesaeeeaeseaeessesseceateeeenseens 11 U.S. EPA, National Ambient Air Quality Standards (NAAQS)..............000. 4 U.S. EPA, Particulate Matter (PM)... ceccceececcseeeeescecseeseeenseesesseeessneeesseens 4 TO THE HONORABLECHIEF JUSTICE AND JUSTICES OF THE SUPREME COURT: APPLICATION FOR LEAVETO FILE AMICUS CURIAE BRIEF Pursuant to Rule 8.520(f) of the California Rules of Court, the South Coast Air Quality ManagementDistrict (SCAQMD)respectfully requests leaveto file the attached amicus curiae brief. Because SCAQMD'sposition differs from that of either party, we request leave to submit this amicus brief in support of neither party. HOW THIS BRIEF WILL ASSIST THE COURT SCAQMD's proposed amicusbrief takes a position on two of the issues in this case. In both instances,its position differs from that of either party. The issuesare: 1) Does the California Environmental Quality Act (CEQA) require an environmental impact report (EIR) to correlate a project’s air pollution emissions with specific levels of health impacts? 2) Whatis the proper standard of review for determining whether an EIR provides sufficient information on the health impacts caused by a project’s emission ofair pollutants? This brief will assist the Court by discussing the practicalrealities of correlating identified air quality impacts with specific health outcomes. In short, CEQA requires agencies to provide detailed information about a project’s air quality impacts thatis sufficient for the public and decisionmakers to adequately evaluate the project and meaningfully understand its impacts. However, the level of analysis is governed by a rule of reason; CEQA only requires agencies to conduct analysisif it is reasonably feasible to do so. With regard to health-related air quality impacts, an analysis that correlates a project’s air pollution emissions with specific levels of health impacts will be feasible in some cases but not others. Whetherit is feasible dependsona variety of factors, including the nature of the project and the nature of the analysis under consideration. The feasibility of analysis may also change overtimeasair districts and others develop newtools for measuring projects’ air quality related health impacts. Because SCAQMD has amongthe most sophisticated air quality modeling and health impact evaluation capability of any of the air districts in the State, it is uniquely situated to express an opinion on the extent to which the Court should hold that CEQA requires lead agenciesto correlate air quality impacts with specific health outcomes. SCAQMDcanalso offer a unique perspective on the question ofthe appropriate standard of review. SCAQMDsubmitsthat the proper standard of review for determining whether an EIRis sufficient as an informational documentis more nuanced than arguedbyeither party. In our view,this is a mixed question of fact and law. It includes determining whether additional analysis is feasible, which is primarily a factual question that should be reviewed underthe substantial evidence standard. However,it also involves determining whether the omission ofa particular analysis renders an EIR insufficient to serve CEQA’s purpose as a meaningful, informational document. If a lead agency has not determinedthat a requested analysis is infeasible, it is the court’s role to determine whether the EIR nevertheless meets CEQA’s purposes, and courts should not defer to the lead agency’s conclusionsregarding the legal sufficiency of an EIR’s analysis. The ultimate question of whether an EIR’s analysisis “sufficient” to serve CEQA's informational purposes is predominately a question of law that courts should review de novo. This brief will explain the rationale for these arguments and may assist the Court in reaching a conclusion that accords proper respect to a lead agency's factual conclusions while maintaining judicial authority over the ultimate question of whatlevel of analysis CEQA requires. STATEMENT OF INTEREST OF AMICUS CURIAE The SCAQMDisthe regional agency primarily responsible forair pollution control in the South Coast Air Basin, which consists of all of Orange County andthe non-desert portions of the Los Angeles, Riverside, and San Bernardino Counties. (Health & Saf. Code § 40410; Cal. Code Regs., tit. 17, § 60104.) The SCAQMDparticipates in the CEQAprocess in several ways. Sometimesit acts as a lead agency that prepares CEQA documents for projects. Other timesit acts as a responsible agency whenit has permit authority over somepart of a project that is undergoing CEQA review by a different lead agency. Finally, SCAQMDalsoacts as a commenting agency for CEQAdocumentsthatit receives becauseit is a public agency with jurisdiction by law over natural resources affected by the project. In all of these capacities, SCAQMDwill be affected by the decision in this case. SCAQMDsometimes submits comments requesting that a lead agency perform an additional type of air quality or health impacts analysis. On the other hand, SCAQMDsometimes determinesthat a particular type of health impact analysis is not feasible or would not producereliable and informative results. Thus, SCAQMDwill be affected by the Court’s resolution of the extent to which CEQA requires EIRsto correlate emissions and health impacts, andits resolution of the proper standard of review. CERTIFICATION REGARDING AUTHORSHIP AND FUNDING Noparty or counsel in the pending case authored the proposed amicuscuriae brief in whole or in part, or made any monetary contribution intended to fund the preparation or submission ofthe brief. No person or entity other than the proposed Amicus Curiae made any monetary contribution intended to fund the preparation or submission ofthe brief. Respectfully submitted, DATED: April 3, 2015 SOUTH COAST AIR QUALITY MANAGEMENTDISTRICT KURTR. WIESE, GENERAL COUNSEL BARBARA BAIRD, CHIEF DEPUTY COUNSEL Barbara Baird Attorneysfor [proposed] Amicus Curiae SOUTH COASTAIR QUALITY MANAGEMENTDISTICT App-4 BRIEF OF AMICUS CURIAE SUMMARY OF ARGUMENT The South Coast Air Quality ManagementDistrict (SCAQMD) submits that this Court should nottry to establish a hard-and-fast rule concerning whether lead agencies are required to correlate emissions of air pollutants with specific health consequences in their environmental impact reports (EIR). The level of detail required in EIRs is governedbya few, core CEQA (California Environmental Quality Act) principles. Asthis Court hasstated, “[a]n EIR must include detail sufficient to enable those whodid notparticipate in its preparation to understand and to consider meaningfully the issues raised by the proposedproject.” (Laurel Heights ImprovementAssn. v. Regents ofthe Univ of Cal. (1988) 47 Cal.3d 376, 405 [“Laurel Heights 1”|) Accordingly, “an agency mustuseits best efforts to find out and discloseall that it reasonably can.” (Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4th 412, 428 (quoting CEQA Guidelines § 15144)'.). However, “{a]nalysis of environmental effects need not be exhaustive, but will be judgedin light of whatis reasonably feasible.” (Association ofIrritated Residents v. County ofMadera (2003) 107 Cal.App.4th 1383, 1390; CEQA Guidelines §§ 15151, 15204(a).) With regard to analysis ofair quality related health impacts, EIRs must generally quantify a project’s pollutant emissions, but in some casesit is not feasible to correlate these emissionsto specific, quantifiable health impacts (e.g., premature mortality; hospital admissions). In such cases, a general description of the adverse health impacts resulting from the pollutants at issue may be sufficient. In other cases, due to the magnitude ' The CEQA Guidelines are foundat Cal. Code Regs., tit. 14 §§ 15000, et seq. or nature of the pollution emissions, as well as the specificity of the project involved, it may be feasible to quantify health impacts. Or there may be a less exacting, butstill meaningful analysis of health impacts that can feasibly be performed. In these instances, agencies should disclose those impacts. SCAQMDalso submits that whether or not an EIR complies with CEQA’s informational mandates by providing sufficient, feasible analysis is a mixed question of fact and law. Pertinent here, the question of whether an EIR’s discussion of health impacts from air pollution is sufficient to allow the public to understand and consider meaningfully the issues involves two inquiries: (1) Is it feasible to provide the information or analysis that a commenteris requesting ora petitioner is arguing should be required?; and (2) Evenifit is feasible, is the agency relying on other policy or legal considerations to justify not preparing the requested analysis? The first question of whether an analysis is feasible is primarily a question of fact that should be judged bythe substantial evidence standard. The second inquiry involves evaluating CEQA’s information disclosure purposes againstthe asserted reasonsto not perform the requested analysis. For example, an agency mightbelieve that its EIR meets CEQA’s informational disclosure standards even without a particular analysis, and therefore choose not to conduct that analysis. SCAQMDsubmits thatthis is more of a legal question, which should be reviewed de novoas a question of law. ARGUMENT I. RELEVANT FACTUAL AND LEGAL FRAMEWORK. A. Air Quality Regulatory Background The South Coast Air Quality Management District(SCAQMD)is one of the local and regional air pollution control districts and air quality managementdistricts in California. The SCAQMDistheregional air pollution agency for the South Coast Air Basin, which consistsofall of Orange County andthe non-desert portions of Los Angeles, Riverside, and San Bernardino Counties. (Health & Saf. Code § 40410, 17 Cal. Code Reg. § 60104.) The SCAQMDalso includes the Coachella Valley in Riverside County (Palm Springsarea to the Salton Sea). (SCAQMD,Final 2012 AQMP(Feb. 2013), http://www.aqmd.gov/home/library/clean-air-plans/air- quality-met-plan/final-2012-air-quality-management-plan; then follow “chapter 7” hyperlink; pp 7-1, 7-3 (last visited Apr. 1, 2015).) The SCAQMD'sjurisdiction includes over 16 million residents and has the worst or nearly the worst air pollution levels in the country for ozone and fine particulate matter. (SCAQMD,Final 2012 AQMP(Feb. 2013), http://www.aqmd.gov/home/library/clean-air-plans/air-quality-mgt-_ plan/final-2012-air-quality-management-plan; then follow “Executive Summary” hyperlink p. ES-1 (last visited Apr. 1, 2015).) Under California law, the local and regionaldistricts are primarily responsible for controlling air pollution from all sources except motor vehicles. (Health & Saf. Code § 40000.) The California Air Resources Board (CARB),part of the California Environmental Protection Agency,is primarily responsible for controlling pollution from motor vehicles. (Jd.) Theair districts must adopt rules to achieve and maintain the state and federal ambientair quality standards within their jurisdictions. (Health & Saf. Code § 40001.) The federal Clean Air Act (CAA) requires the United States Environmental Protection Agency (EPA)to identify pollutants that are widely distributed and pose a threat to human health, developing a so-called “criteria” document. (42 U.S.C. § 7408; CAA § 108.) These pollutants are A g e e S P S S pil e S e frequently called “criteria pollutants.”” EPA must then establish “national ambient air quality standards”at levels “requisite to protect public health’’, allowing “an adequate margin ofsafety.” (42 U.S.C. § 7409; CAA § 109.) EPA hasset standards for six identified pollutants: ozone, nitrogen dioxide, sulfur dioxide, carbon monoxide,particulate matter (PM), and lead. (U.S. EPA, National Ambient Air Quality Standards (NAAQS), http://www.epa.gov/air/criteria.htm] (last updated Oct. 21, 2014).)’ Under the Clean Air Act, EPA sets emission standards for motor vehicles and “nonroad engines” (mobile farm and construction equipment, marine vessels, locomotives,aircraft, etc.). (42 U.S.C. §§ 7521, 7547; CAA §§ 202, 213.) California is the only state allowed to establish emission standards for motor vehicles and most nonroad sources; however, it may only do so with EPA's approval. (42 U.S.C.§§ 7543(b), 7543(e); CAA 8§ 209(b), 209(c).) Sources such as manufacturing facilities, power plants andrefineries that are not mobile are often referred to as ‘stationary sources.” The Clean Air Act charges state and local agencies with the primary responsibility to attain the national ambientair quality standards. (42 U.S.C. § 7401(a)(3); CAA § 101(a)(3).) Each state must adopt and implementa plan including enforceable measures to achieve and maintain the national ambient air quality standards. (42 U.S.C. § 7410; CAA § 110.) The SCAQMDand CARB jointly prepare portion of the plan for the South Coast Air Basin and submitit for approval by EPA. (Health & Saf. Code §§ 40460, et seq.) The Clean Air Act also requires state and local agencies to adopt a permit program requiring, among otherthings, that new or modified “major” stationary sources use technology to achieve the “lowest achievable emission rate,” and to control minorstationary sources as * Particulate matter (PM)is further divided into two categories: fine particulate or PM)5 (particles with a diameterofless than or equal to 2.5 microns) and coarse particulate (PMjo9) (particles with a diameter of 10 micronsor less). (U.S. EPA, Particulate Matter (PM), http://www.epa.gov/airquality/particlepollution/ (last visited Apr. 1, 2015).) 4 neededto help attain the standards. (42 U.S.C. §§ 7502(c)(5), 7503(a)(2), 7410(a)(2)(C); CAA §§ 172(c)(5), 173(a)(2), 110(a)(2)(C).) The air districts implement these permit programsin California. (Health & Saf. Code §§ 42300, et seq.) The Clean Air Act also sets out a regulatory structure for over 100 so-called “hazardousair pollutants” calling for EPA to establish “maximum achievable control technology” (MACT)for sources of these pollutants. (42 U.S.C. § 7412(d)(2); CAA § 112(d)(2).) California refers to these pollutants as “toxic air contaminants” (TACs) whichare subject to two state-required programs. Thefirst program requires “air toxics control measures”for specific categories of sources. (Health & Saf. Code § 39666.) The other program requires larger stationary sources and sources identified by air districts to prepare “health risk assessments” for impacts of toxic air contaminants. (Health & Saf. Code §§ 44320(b), 44322, 44360.) If the health risk exceeds levels identified by the district as “significant,” the facility must implementa “risk reduction plan” to bringits risk levels below “significant” levels. Air districts may adopt additional more stringent requirements than those required bystate law, including requirements for toxic air contaminants. (Health & Saf. Code § 41508; Western Oil & Gas Assn. v. Monterey Bay Unified APCD (1989) 49 Cal.3d 408, 414.) For example, SCAQMDhasadopted a rule requiring new or modified sources to keep their risks below specified levels and use best available control technology (BACT) for toxics. (SCAQMD,Rule 1401- New Source Review of Toxic Air Contaminants, http://www.agmd.gov/home/regulations/rules/scaqmd-rule-book/regulation- xiv; then follow “Rule 1401” hyperlink (last visited Apr. 1, 2015).) B. The SCAQMD's Role Under CEQA The California Environmental Quality Act (CEQA) requires public agencies to perform an environmental review and appropriate analysis for projects that they implementor approve. (Pub. Resources Code § 21080(a).) The agency with primary approvalauthority for a particular project is generally the “lead agency” that prepares the appropriate CEQA document. (CEQA Guidelines §§ 15050, 15051.) Other agencies having a subsequent approvalauthority overall or part of a project are called “responsible” agencies that must determine whether the CEQA documentis adequate for their use. (CEQA Guidelines §§ 15096(c), 15381.) Lead agencies mustalso consult with and circulate their environmental impact reports to “trustee agencies” and agencies “with jurisdiction by law” including “authority over resources which may be affected by the project.” (Pub. Resources Code §§ 21104(a), 21153; CEQA Guidelines §§ 15086(a)(3), 15073(c).) The SCAQMDhasa rolein all these aspects of CEQA. Fulfilling its responsibilities to implement its air quality plan and adoptrules to attain the national ambientair quality standards, SCAQMD adopts a dozen or morerules each year to require pollution reductions from a widevariety of sources. The SCAQMDstaff evaluates each rule for any adverse environmental impact and prepares the appropriate CEQA document. Although most rules reduce air emissions, they may have secondary environmental impacts such as use of water or energy or disposal of waste—e.g., spent catalyst from control equipment.° > The SCAQMD's CEQAprogramforits rules is a “Certified Regulatory Program” under whichit prepares a “functionally equivalent” documentin lieu of a negative declaration or EIR. (Pub. Resources Code § 21080.5, CEQA Guidelines § 15251(1).) The SCAQMDalsoapprovesa large numberof permits every year to construct new, modified, or replacementfacilities that emit regulated air pollutants. The majority of these air pollutant sources have already been included in an earlier CEQAevaluation for a larger project, are currently being evaluated by a local governmentas lead agency,or qualify for an exemption. However, the SCAQMD sometimesacts as lead agency for major projects where the local government doesnot have a discretionary approval. In such cases, SCAQMDpreparesandcertifies a negative declaration or environmental impact report (EIR) as appropriate.’ SCAQMDevaluates perhaps a dozen such permit projects under CEQA each year. SCAQMDisoften also a “responsible agency” for many projects since it must issue a permit for part of the projects (e.g., a boiler used to provide heat in a commercial building). For permit projects evaluated by another lead agency under CEQA, SCAQMDhastheright to determine that the CEQA documentis inadequate for its purposes as a responsible agency, but it may not do so becauseits permit program already requiresall permitted sources to use the best available air pollution control technology. (SCAQMD,Rule 1303(a)(1) — Requirements, http://www.aqmd.gov/home/regulations/rules/scaqmd-rule-book/regulation- xiil; then follow “Rule 1303” hyperlink (last visited Apr. 1, 2015).) Finally, SCAQMDreceives as many as 60 or more CEQA documents each month (around 500 per year) in its role as commenting agency or an agencywith “jurisdiction by law”over air quality—a natural resource affected by the project. (Pub. Resources Code §§ 21104(a), 21153; CEQA Guidelines § 15366(a)(3).) The SCAQMDstaff provides comments on as many as 25 or 30 such documents each month. * The SCAQMD'spermit projects are not included in its Certified - Regulatory Program, and are evaluated underthe traditional local government CEQAanalysis. (Pub. Resources Code §§ 21150-21154.) 7 (SCAQMDGoverning Board Agenda, Apr. 3, 2015, Agenda Item 16, AttachmentA, http://;www.agmd.gov/home/library/meeting-agendas- minutes/agenda?title=governing-board-meeting-agenda-april-3-2015; then follow “16. Lead Agency Projects and Environmental Documents Received by SCAQMD”hyperlink (last visited Apr. 1, 2015).) Of course, SCAQMD focuses its commenting efforts on the more significant projects. Typically, SCAQMD comments on the adequacyofair quality analysis, appropriateness of assumptions and methodology, and completeness of the recommendedair quality mitigation measures. Staff may commenton the need to prepare a health risk assessmentdetailing the projected cancer and noncancerrisks from toxic air contaminants resulting from the project, particularly the impacts of diesel particulate matter, which CARB hasidentified as a toxic air contaminant basedonits carcinogenic effects. (California Air Resources Board, Resolution 98-35, Aug. 27, 1998, http://www.arb.ca.gov/regact/diesltac/diesltac.htm; then follow Resolution 98-35 hyperlink (last visited Apr. 1, 2015).) Because SCAQMDalready requires new or modified stationary sources of toxic air contaminants to use the best available control technology for toxics and to keep their risks below specified levels, (SCAQMD Rule 1401, supra, note 15), the greatest opportunity to further mitigate toxic impacts through the CEQAprocessis by reducing emissions—particularly diesel emissions—from vehicles. Il. THIS COURT SHOULD NOT SET A HARD-AND-FAST RULE CONCERNING THE EXTENT TO WHICH AN EIR MUST CORRELATE A PROJECT’S EMISSION OF POLLUTANTS WITH RESULTING HEALTH IMPACTS. Numerouscases hold that courts do not review the correctness of an EIR's conclusions butrather its sufficiency as an informative document. (Laurel Heights 1, supra, 47 Cal.3d at p. 392; Citizens ofGoleta Valley v. Bd. ofSupervisors (1990) 52 Cal.3d 553, 569; Bakersfield Citizensfor Local Controlv. City ofBakersfield (2004) 124 Cal.App.4th 1184, 1197.) Asstated by the Court of Appeal in this case, where an EIR has addressed a topic, but the petitioner claims that the information provided aboutthat topic is insufficient, courts must “draw[] a line that divides sufficient discussions from those that are insufficient.” (Sierra Club v. County ofFresno (2014) 226 Cal.App.4"" 704 (superseded by grant of review) 172 Cal.Rptr.3d 271, 290.) The Court of Appeal readily admitted that “[t]he terms themselves — sufficient and insufficient — providelittle, if any, guidanceas to where the line should be drawn. They are simply labels applied once the court has completedits analysis.” (/d.) The CEQA Guidelines, however, provide guidance regarding what constitutes a sufficient discussion of impacts. Section 15151 states that “the sufficiency of an EIR is to be reviewedin light of what is reasonably feasible.” Case law reflects this: “Analysis of environmental effects need not be exhaustive, but will be judged in light of what was reasonably feasible.” (Association ofIrritated Residents v. County ofMadera, supra, 107 Cal.App.4th at p. 1390; see also CEQA Guidelines § 15204(a).) Applyingthis test, this Court cannotrealistically establish a hard- and-fast rule that an analysis correlating air pollution impacts of a project to quantified resulting health impacts is always required, or indeedthatit is never required. Simply put, in some cases such an analysis will be | “feasible”; in some casesit will not. For example,air pollution control districts often require a proposed new source oftoxic air contaminants to prepare a “health risk assessment” before issuing a permit to construct. District rules often limit the allowable cancer risk the new source may cause to the “maximally exposed individual” (worker and residence exposures). (See, e.g., SCAQMD Rule 1401(c)(8); 1401(d)(1), supra note 15.) In order to perform this analysis, it 1s necessary to have data regarding the sources and typesofair toxic contaminants, location of emission points, velocity of emissions, the meteorology and topography of the area, and the location of receptors (worker and residence). (SCAQMD,Supplemental Guidelinesfor Preparing Risk Assessmentsfor the Air Toxics “Hot Spots” Information and Assessment Act (AB2588), pp. 11-16; (last visited Apr. 1, 2015) http://www.agmd.gov/home/library/documents-support-material; "Guidelines" hyperlink; AB2588; then follow AB2588 Risk Assessment Guidelines hyperlink.) Thus,it is feasible to determine the health risk posed by a new gas station locating at an intersection in a mixed use area, where receptor locations are known. On the other hand, it may not be feasible to perform a health risk assessmentfor airborne toxics that will be emitted by a generic industrial building that was built on “speculation”(i.e., without knowing the future tenant(s)). Even where a health risk assessmentcan be prepared, however, the resulting maximum health risk value is only a calculation of risk—it does not necessarily mean anyone will contract canceras a result of the project. In orderto find the “cancer burden” or expected additional cases of cancerresulting from the project, it is also necessary to know the numbers and location of individuals living within the “zone of impact”of the project: 1.e., those living in areas where the projected cancerrisk from the project exceeds one in a million. (SCAQMD,Health Risk Assessment Summary form,http://www.aqmd.gow/home/forms; filter by "AB2588" category; then "Health Risk Assessment" hyperlink (last visited Apr. 1, 2015).) The affected population is divided into bands of those exposed to at least 1 in a million risk, those exposedto at least 10 in a millionrisk,etc. up to those exposedat the highest levels. (/d.) This data allows agenciesto calculate an approximate numberof additional cancer cases expected from 10 the project. However,it is not possible to predict which particular individuals will be affected. Forthe so-called criteria pollutants’, such as ozone, it may be more difficult to quantify health impacts. Ozone is formed in the atmosphere from the chemicalreaction of the nitrogen oxides (NO,) andvolatile organic compounds (VOC)in the presence of sunlight. (U.S. EPA, Ground Level Ozone,http://www.epa.gov/airquality/ozonepollution/ (last updated Mar. 25, 2015).) It takes time and the influence of meteorological conditions for these reactions to occur, so ozone may be formedat a distance downwind from the sources. (U.S. EPA, Guideline on Ozone Monitoring Site Selection (Aug. 1998) EPA-454/R-98-002 § 5.1.2, http://www.epa.gov/ttnamtil/archive/cpreldoc.html(last visited Apr. 1, 2015).) NO, and VOC are knownas“precursors” of ozone. Scientifically, health effects from ozoneare correlated with increases in the ambient level of ozonein the air a person breathes. (U.S. EPA, Health Effects ofOzone in the General Population, Figure 9, http://www.epa.gov/apti/ozonehealth/population.html#levels(last visited Apr. 1, 2015).) However,it takes a large amountof additional precursor emissions to cause a modeledincrease in ambient ozonelevels over an entire region. For example, the SCAQMD's 2012 AQMPshowedthat reducing NO, by 432 tons per day (157,680 tons/year) and reducing VOC by 187 tons per day (68,255 tons/year) would reduce ozonelevels at the SCAQMD's monitor site with the highest levels by only 9 parts per billion. (South Coast Air Quality ManagementDistrict, Final 2012 AQMP (February 2013), http://www.agmd.gov/home/library/clean-air-plans/air- quality-mgt-plan/final-2012-air-quality-management-plan; then follow “Appendix V: Modeling & Attainment Demonstrations” hyperlink, ° See discussion of types ofpollutants, supra, Part L.A. 11 pp. v-4-2, v-7-4, v-7-24.) SCAQMDstaff does not currently know of a wayto accurately quantify ozone-related health impacts caused by NO, or VOC emissionsfrom relatively small projects. Onthe other hand,this type of analysis may be feasible for projects on a regional scale with very high emissions ofNO, and VOCs, where impacts are regional. For example, in 2011 the SCAQMDperformed a health impact analysis in its CEQA document for proposed Rule 1315, which authorized various newly-permitted sources to use offsets from the districts “internal bank” of emission reductions. This CEQAanalysis accountedfor essentially a// the increases in emissions due to new or modified sources in the District between 2010 and 2030.° The SCAQMD wasable to correlate this very large emissions increase(e.g., 6,620 pounds per day NO, (1,208 tons per year), 89,180 pounds per day VOC (16,275 tons per year)) to expected health outcomes from ozoneandparticulate matter (e.g., 20 premature deaths per year and 89,947 school absencesin the year 2030 due to ozone).’ (SCAQMD Governing Board Agenda, February 4, 2011, Agenda Item 26, Assessmentfor: Re-adoption of Proposed Rule 1315 — Federal New Source Review Tracking System (see hyperlink in fn 6) at p. 4.1-35, Table 4.1-29.) ° (SCAQMDGoverning Board Agenda, February 4, 2011, Agenda Item 26 Attachment G, Assessmentfor: Re-adoption ofProposed Rule 1315 — Federal New Source Review Tracking System, Vol. 1, p.4.0-6, http://www.agqmd.gov/home/library/meeting-agendas- minutes/agenda?title=governing-board-meeting-agenda-february-4-2011; the follow “26. Adopt Proposed Rule 1315 — Federal New Source Review Tracking System”(last visited April 1, 2015).) ” The SCAQMDwasableto establish the location of future NO, and VOC emissions by assuming that new projects wouldbebuilt in the same locations and proportionsas existing stationary sources. This CEQA document wasupheld by the Los Angeles County Superior Court in Natural Res. Def: Council v SCAQMD,Los Angeles Superior Court No. BS110792). a 12 However, a project emitting only 10 tons per year ofNO, or VOCis small enoughthatits regional impact on ambient ozone levels may not be detected in the regional air quality models that are currently used to determine ozonelevels. Thus, in this case it would not be feasible to directly correlate project emissions ofVOC or NO, with specific health impacts from ozone. Thisis in part because ozone formationis not linearly related to emissions. Ozone impacts vary depending onthe location of the emissions,the location of other precursor emissions, meteorology and seasonal impacts, and because ozone is formed sometime later and downwindfrom the actual emission. (EPA Guideline on Ozone Monitoring Site Selection (Aug. 1998) EPA-454/R-98-002,§ 5.1.2; https://www.epa.gov/ttnamtil/archive/cpreldoc.html; then search “Guideline on Ozone Monitoring Site Selection” click on pdf) (last viewed Apr. 1, 2015).) SCAQMDhasset its CEQA “significance” threshold for NO, and VOCat 10 tons per year (expressed as 55 Ib/day). (SCAQMD,Air Quality Analysis Handbook,http://www.aqmd.gov/home/regulations/ceqa/air- quality-analysis-handbook;then follow “SCAQMDAir Quality Significance Thresholds” hyperlink (last visited Apr. 1, 2015).) This is because the federal Clean Air Act defines a “major”stationary source for “extreme” ozone nonattainmentareas such as SCAQMDasone emitting 10 tons/year. (42 U.S.C. §§ 751 la(e), 751la(f); CAA §§ 182(e), 182(f).) Underthe Clean Air Act, such sources are subject to enhanced control requirements (42 U.S.C. §§ 7502(c)(5), 7503; CAA §§ 172(c)(5), 173), so SCAQMDdecided this was an appropriate threshold for making a CEQA “significance”finding and requiring feasible mitigation. Essentially, SCAQMDtakesthe position that a source that emits 10 tons/year ofNO, or VOC would contribute cumulatively to ozone formation. Therefore, lead agencies that use SCAQMD’sthresholds of significance may determine 13 that manyprojects have “significant” air quality impacts and must applyall feasible mitigation measures, yet will not be able to precisely correlate the project to quantifiable health impacts, unless the emissionsare sufficiently high to use a regional modeling program. In the case of particulate matter (PM;;)°, another“criteria” pollutant SCAQMDstaff is aware of two possible methods of analysis. SCAQMD 3 used regional modeling to predict expected health impacts from its proposed Rule 1315, as mentioned above. Also, the California Air Resources Board (CARB) has developed a methodologythat can predict expected mortality (premature deaths) from large amounts of PM)5. (California Air Resources Board, Health Impacts Analysis: PMPremature Death Relationship, http://www.arb.ca.gov/research/health/pm-mort/pm- mort_arch.htm (last reviewed Jan. 19, 2012).) SCAQMDused the CARB methodology to predict impacts from three very large powerplants(e.g., 731-1837 lbs/day). (Final Environmental Assessment for Rule 1315, supra, pp 4.0-12, 4.1-13, 4.1-37 (e.g., 125 premature deathsin the entire SCAQMDin 2030), 4.1-39 (0.05 to 1.77 annual premature deaths from powerplants.) Again, this project involved large amounts of additional PM,; in the District, up to 2.82 tons/day (5,650 lbs/day of PM>s, or, or 1029 tons/year. (/d. at table 4.1-4, p. 4.1-10.) However, the primary author of the CARB methodologyhas reported that this PM>5 health impact methodologyis not suited for small projects and mayyield unreliable results due to various uncertainties. ” (SCAQMD,Final Subsequent Mitigated Negative Declaration for: Warren 8 SCAQMDhasnotattained the latest annual or 24-hournational ambient air quality standards for "PM,;” or particulate matter less than 2.5 microns in diameter. ” Amongthese uncertainties are the representativeness ofthe population used in the methodology, and the specific source ofPM and the corresponding health impacts. (/d. at p. 2-24.) 14 E&P, Inc. WTU Central Facility, New Equipment Project (certified July 19, 2011), http://www.aqmd.gov/home/library/documents-support- material/lead-agency-permit-projects/permit-project-documents---year- 2011; then follow “Final Subsequent Mitigated Negative Declaration for Warren E&P Inc. WTU Central Facility, New Equipment Project” hyperlink, pp. 2-22, 2-23 (last visited Apr. 1, 2015).) Therefore, when SCAQMDprepared a CEQA documentfor the expansion ofan existing oil production facility, with very small PM)s increases (3.8 Ib/day) and a very small affected population,staff elected not to use the CARB methodology for using estimated PM); emissionsto derive a projected premature mortality number and explained why it would be inappropriate to do so. (id. at pp 2-22 to 2-24.) SCAQMDstaff concludedthat use ofthis methodology for such a small source could result in unreliable findings and would not provide meaningful information. (/d. at pp. 2-23, 2-25.) This CEQAdocument wasnot challenged in court. In the above case, while it may have been technically possible to plug the data into the methodology,the results would not have beenreliable or meaningful. SCAQMDbelieves that an agency should not be required to perform analyses that do not producereliable or meaningful results. This Court has already held that an agency may decline to use even the “normal” “existing conditions” CEQAbaseline where to do so would be misleading or without informational value. (Neighborsfor Smart Rail v. Exposition Metro Line (2013) 57 Cal.4th 439, 448, 457.) The same should betrue for a decision that a particular study or analysis would not providereliable or meaningfulresults. '° '° Whether a particular study would result in "informational value”is a part of deciding whetherit is “feasible.” CEQA defines “feasible” as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and 15 Therefore,it is not possible to set a hard-and-fast rule on whether a correlation ofair quality impacts with specific quantifiable health impacts is required in all cases. Instead, the result turns on whethersuch an analysis is reasonably feasible in the particular case.'’ Moreover, whatis reasonably feasible may change overtimeasscientists and regulatory agencies continually seek to improvetheir ability to predict health impacts. For example, CARB staff has been directed by its Governing Boardto reassess and improve the methodology for estimating premature deaths. (California Air Resources Board, Health Impacts Analysis: PMMortality Relationship, http://www.arb.ca.gov/research/health/pm-mort/pm-mort.htm (last reviewed Dec. 29, 2010).) This factor also counsels against setting any hard-and-fastrule in this case. il. THE QUESTION OF WHETHER AN EIR CONTAINS SUFFICIENT ANALYSIS TO MEET CEQA’S REQUIREMENTSIS A MIXED QUESTION OF FACT AND LAW GOVERNED BY TWO DIFFERENT STANDARDS OF REVIEW. A. Standard of Review for Feasibility Determination and Sufficiency as an Informative Document A secondissue in this case is whether courts should review an EIR's informational sufficiency under the “substantial evidence”test as argued by Friant Ranch or the “independent judgment”test as argued by Sierra Club. technological factors.” (Pub. Resources Code § 21061.1.) A study cannot be “accomplished in a successful manner”if it produces unreliable or misleading results. '' In this case, the lead agency did not have an opportunity to determine whether the requested analysis was feasible because the comment was non- specific. Therefore, SCAQMDsuggeststhat this Court, after resolving the legal issues in the case, direct the Court of Appeal to remandthecase to the lead agency for a determination of whether the requested analysisis feasible. Because Fresno County, the lead agency, did not seek review in this Court, it seemslikely that the County has concluded that at least some level of correlation of air pollution with health impacts is feasible. 16 Asthis Court has explained,“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 Area Citizens v. City ofRancho Cordova, supra, 40 Cal.4th at 435.) For questions regarding compliance with proper procedure or other legal questions, courts review an agency’s action de novo underthe “independent judgment”test. (/d.) On the other hand, courts review factual disputes only for substantial evidence, thereby “accord[ing] greater deference to the agency’s substantive factual conclusions.” (/d.) Here, Friant Ranch and Sierra Club agree that the case involves the question of whether an EIR includessufficient information regarding a project’s impacts. However, they disagree on the proper standard of review for answering this question: Sierra Club contends that courts use the independent judgment standard to determine whether an EIR’s analysis is sufficient to meet CEQA’sinformational purposes,'” while Friant Ranch contends that the substantial evidence standard applies to this question. /// /// //1 /// /// /// /// /// /// '? Sierra Club acknowledgesthat courts use the substantial evidence standard when reviewing predicate factual issues, but argues that courts ultimately decide as a matter of law what CEQArequires. (Answering Brief, pp. 14, 23.) 17 SCAQMDsubmits that the issue is more nuanced thaneither party contends. We submit that, whether a CEQA documentincludes sufficient analysis to satisfy CEQA’s informational mandates is a mixed question of fact and law,'? containing twolevels of inquiry that should be judged by different standards." The state CEQA Guidelinesset forth standards for the adequacy of environmental analysis. Guidelines Section 15151 states: An EIR should be prepared with a sufficient degree of analysis to provide decision makers with information which enables them to make a decision which intelligently 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 light of whatis 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 looked not for perfection, but for adequacy, completeness, and a good-faith effort at full disclosure. In this case, the basic question is whether the underlying analysis of air quality impacts made the EIR “sufficient” as an informative document. However, whether the EIR’s analysis wassufficient is judgedin light of what wasreasonably feasible. This represents a mixed question of fact and law that is governed by twodifferent standards of review. '3 Friant Ranch actually states that the claim that an EIR lacks sufficient relevant information is, "most properly thought of as raising mixed questions of fact and law.” (Opening Brief, p. 27.) However, the remainderof its argument claims that the court should apply the substantial evidence standard of review to all aspects of the issue. '4 Mixed questionsof fact and law issues may implicate predominantly factual subordinate questions that are reviewed underthe substantial evidence test even though the ultimate question may be reviewed by the independent judgmenttest. Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888-889. 18 SCAQMDsubmits that an EIR’s sufficiency as an informational documentis ultimately a legal question that courts should determine using their independent judgment. This Court’s language in Laurel Heights I supports this position. As this Court explained: “The court does not pass upon the correctness of the EIR’s environmental conclusions, but only upon its sufficiency as an informative document.” (Laurel Heights I, supra, 47 Cal.3d at 392-393) (emphasis added.) As described above, the Court in Vineyard Area Citizens v. City ofRancho Cordova, supra, 40 Cal.4th at 431, also used its independent judgment to determine whatlevel of analysis CEQArequires for water supply impacts. The Court did not defer to the lead agency’s opinion regarding the law’s requirements;rather,it determined for itself what level of analysis was necessary to meet“[t]he law’s informational demands.” (/d. at p. 432.) Further, existing case law also holds that where an agencyfails to comply with CEQA’s information disclosure requirements, the agency has “failed to proceed in the manner required by law.” (Save Our Peninsula Comm. v. Monterey County Bd. of Supervisors (2001) 87 Cal-App.4th 99, 118.) | However, whether an EIR satisfies CEQA’s requirements dependsin part on whetherit was reasonably feasible for an agency to conduct additional or more thorough analysis. EIRs must contain “a detailed statement” of a project’s impacts (Pub. Res. Code § 21061), and an agency must“use its best efforts to find out anddisclose all that it reasonably can.” (CEQA Guidelines § 15144.) Nevertheless, “the sufficiency of an EIR is to be reviewedin light of what is reasonably feasible.” (CEQA Guidelines § 15151.) SCAQMDsubmits that the question of whether additional analysis or a particular study suggested by a commenteris “feasible” is generally a question of fact. Courts have already held that whethera particular alternative 1s “feasible” is reviewed bythe substantial evidencetest. 19 (Uphold Our Heritage v. Town of Woodside (2007) 147 Cal.App.4th 587, 598-99; Centerfor Biological Diversity v. County ofSan Bernardino (2010) 185 Cal.App.4th 866, 883.) Thus,if a lead agency determinesthat a particular study or analysis 1s infeasible, that decision should generally be judged by the substantial evidence standard. However, SCAQMDurges this Court to hold that lead agencies must explain the basis of any determination that a particular analysis is infeasible in the EIR itself. An EIR mustdiscuss information, including issues related to the feasibility of particular analyses “in sufficient detail to enable meaningful participation and criticism by the public. ‘[W]hatever is required to be considered in an EIR must be in that formal report; what any official might have known from other writings or oral presentations cannot supply whatis lacking in the report.’” (Laurel Heights I, supra, 47 Cal.3d at p. 405 (quoting Santiago County Water District v. County ofOrange (1981) 118 Cal.App.3d 818, 831) (discussing analysis of alternatives).) The evidence on which the determination is based should also be summarized in the EIR itself, with appropriate citations to reference materials if necessary. Otherwise commenting agencies such as SCAQMDwould beforced to guess wherethe lead agency's evidence might be located, thus thwarting effective public participation. Moreover, if a lead agency determinesthat a particular study or analysis would notresult-in reliable or useful information and for that reasonis notfeasible, that determination should be judged by the substantial evidence test. (See Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority, supra, 57 Cal.4th 439, 448, 457: 20 whether“existing conditions” baseline would be misleading or uninformative judged by substantial evidence standard.'>) If the lead agency’s determination that a particular analysis or study is not feasible is supported by substantial evidence, then the agency has not violated CEQA’s information disclosure provisions, since it would be infeasible to provide additional information. This Court’s decisions provide precedent for such a result. For example, this Court determined that the issue of whether the EIR should have included a moredetailed discussion of future herbicide use was resolved because substantial evidence supported the agency’s finding that “the precise parameters of future herbicide use could not be predicted.” Ebbetts Pass Forest Watch v. California Dept. ofForestry & Fire Protection (2008) 43 Cal.4th 936, 955. Of course, SCAQMDexpects that courts will continue to hold lead agenciesto their obligations to consult with, and not to ignore or misrepresent, the viewsofsister agencies having special expertise in the area of air quality. (Berkeley Keep Jets Over the Bay v. Board ofPort Commissioners (2007) 91 Cal.App.4" 1344, 1364 n.11.) In somecases, information provided by such expert agencies mayestablish that the purported evidence relied on by the lead agencyis notin fact “substantial’’. (/d. at pp. 1369-1371.) In sum,courts retain ultimate responsibility to determine what CEQArequires. However, the law does not require exhaustive analysis, but only whatis reasonably feasible. Agencies deserve deference for their factual determinations regarding what type of analysis is reasonably feasible. On the other hand, if a commenter requests more information, and the lead agency declines to provide it but does not determinethat the '° The substantial evidence standard recognizes that the courts "have neither the resourcesnorthe scientific expertise” to weigh conflicting evidence on technical issues. (Laurel Heights I, supra, 47 Cal.3d 376, 393.) 21 requested study or analysis would be infeasible, misleading or uninformative, the question becomes whetherthe omission ofthat analysis renders the EIR inadequate to satisfy CEQA’s informational purposes. (Id. at pp. 1370-71.) Again, this is predominantly a question of law and should be judged by the de novoor independent judgmentstandard of review. Of course, this Court has recognized that a “project opponent or reviewing court can always imagine some additional study or analysis that might provide helpful information. It 1s not for them to design the EIR. That further study...might be helpful does not makeit necessary.” (Laurel Heights I, supra, 47 Cal.3d 376, 415 — see also CEQA Guidelines § 15204(a) [CEQA “doesnot require a lead agency to conductevery test.. . recommended or demanded by commenters.”].) Courts, then, must adjudicate whether an omission of particular information renders an EIR inadequate to serve CEQA’s informational purposes.’° '® We recognize that there is case law stating that the substantial evidence standard applies to “challenges to the scope of an EIR’s analysis of a topic” as well as the methodology used and the accuracy ofthe data relied on in the document “because these types of challenges involve factual questions.” (Bakersfield Citizensfor Local Control v. City ofBakersfield, supra, 124 Cal.App.4" 1184, 1198, and casesrelied on therein.) However, we interpretthis languageto refer to situations where the question of the scope of the analysis really is factual—that is, where it involves whether further analysis is feasible, as discussed above. Thisinterpretation is supported by the fact that the Bakersfield court expressly rejected an argumentthat a claimed “omission of information from the EIR should be treated as inquiries whether there is substantial evidence supporting the decision approving the project.” Bakersfield, supra, 124 Cal.App.4th at p. 1208. And the Bakersfield court ultimately decided that the lead agency must analyze the connection betweenthe identified air pollution impacts and resulting health impacts, even though the EIR already included some discussionof air-pollution-related respiratory illnesses. Bakersfield, supra, 124 Cal.App.4th at p. 1220. Therefore, the court must not have interpreted this question as one of the “scope ofthe analysis” to be judged by the substantial evidence standard. 22 B. Friant Ranch's Rationale for Rejecting the Independent Judgment Standard of Review is Unsupported by Case Law. In its brief, Friant Ranch makesa distinction between cases where a required CEQAtopicis notdiscussedatall (to be reviewed by independent judgmentas a failure to proceed in the mannerrequired by law) and cases wherea topic is discussed, but the commenterclaims the information | provided is insufficient (to be judged by the substantial evidencetest). (Opening Brief, pp. 13-17.) The Court of Appeal recognized these two types of cases, but concludedthat both raised questions of law. (Sierra Club v. County ofFresno (2014) 226 Cal.App.4th 704 (superseded by grant of review) 172 Cal.Rptr.3d 271, 290.) We believe the distinction drawn by Friant Ranch is unduly narrow,and inconsistent with cases which have concluded that CEQA documentsare insufficient. In manyinstances, CEQA’s requirementsare stated broadly, and the courts mustinterpret the law to determine whatlevel of analysis satisfies CEQA’s mandate for providing meaningful information, even though the EIR discussesthe issue to some extent. For example, the CEQA Guidelines require discussion of the existing environmentalbaseline. In County ofAmadorv. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 954-955, the lead agency had discussed the environmental baseline by describing historic month-end waterlevels in the affected lakes. However, the court held that this was not an adequate baseline discussion becauseit failed to discuss the timing and amounts of past actual water releases, to allow comparison with the proposed project. The court evidently applied the independent judgment test to its decision, even though the agency discussed the issue to some extent. 23 Likewise, in Vineyard Area Citizens (2007) 40 Cal.4th 412,this Court addressed the question of whether an EJR’s analysis of water supply impacts complied with CEQA. Theparties agreed that the EIR was required to analyze the effects of providing water to the development project, “and that in order to do so the EIR had, in some manner,to identify the planned sources of that water.” (Vineyard Area Citizens, supra, at p. 428.) However, the parties disagreed as to the level of detail required for this analysis and “what level of uncertainty regarding the availability of water supplies can be tolerated in an EIR... .” (/d.) In other words, the EIR had analyzed water supply impacts for the project, but the petitioner claimed that the analysis wasinsufficient. This Court noted that neither CEQA’s statutory language or the CEQA Guidelines specifically addressed the question of how precisely an EIR must discuss water supply impacts. (/d.) However, it explained that CEQA“states that ‘[w]hile foreseeing the unforeseeable is not possible, an agency mustuseits best efforts to find out and discloseall thatit reasonably can.’” (/d., [Guidelines § 15144].) The Court used this general principle, along with prior precedent, to elucidate four “principles for analytical adequacy”that are necessary in orderto satisfy “CEQA’s informational purposes.” (Vineyard Area Citizens, supra, at p. 430.) The Court did not defer to the agency’s determination that the EIR’s analysis of water supply impacts wassufficient. Rather, this Court usedits independent judgmentto determinefor itself the level of analysis required to satisfy CEQA’s fundamental purposes. (Vineyard Area Citizens, supra, at p. 441: an EIR doesnotserve its purposes whereit neglects to explain likely sources of water and“... leaves long term water supply considerationsto later stages of the project.”) 24 Similarly, the CEQA Guidelines require an analysis of noise impacts of the project. (Appendix G, “Environmental Checklist Form.”"’) In Gray v. County ofMadera (2008) 167 Cal.App.4th 1099, 1123, the court held that the lead agency’s noise impact analysis was inadequate even thoughit had addressed the issue and concludedthat the increase would not be noticeable. If the court had been using the substantial evidence standard,it likely would have upheld this discussion. Therefore, we do not agree that the issue can be resolved on the basis suggested by Friant Ranch, which would apply the substantial evidence standard to every challenge to an analysis that addresses a required CEQA topic. This interpretation would subvert the courts’ proper role in interpreting CEQA and determining whatthe law requires. Nor do weagree that the Court of Appealin this case violated CEQA’sprohibition on courts interpreting its provisions “in a manner which imposesprocedural or substantive requirements beyond those explicitly stated in this division or in the state guidelines.” (Pub. Resources Code § 21083.1.) CEQA requires an EIR to describe all significant impacts of the project on the environment. (Pub. Resources Code § 21100(b)(2); Vineyard Area Citizens, supra, at p. 428.) Humanbeingsare part of the environment, so CEQArequires EIRsto discussa project’s significant impacts on humanhealth. However, except in certain particular circumstances, '* neither the CEQAstatute nor Guidelines specify the precise level of analysis that agencies must undertaketo satisfy the law’s requirements. (see, e.g., CEQA Guidelines § 15126.2(a) [EIRs must describe “health and safety problems caused by {a project’s} physical changes”].) Accordingly, courts must interpret CEQA as a whole to '’ Association of Environmental Professionals, 2015 CEQAStatute and Guidelines (2015) p.287. '8 E.g., Pub. Resources Code § 21151.8(C)(3)(B)(iii) (requiring specific type of health risk analysis for siting schools). 25 determine whethera particular EIR is sufficient as an informational document. A court determining whether an EIR’s discussion of human health impactsis legally sufficient does not constitute imposing a new substantive requirement.'? Under Friant Ranch’s theory, the above- referenced cases holding a CEQAanalysis inadequate would have violated the law. This is not a reasonable interpretation. IV. COURTS MUST SCRUPULOUSLY ENFORCE THE REQUIREMENTS THAT LEAD AGENCIES CONSULT WITH AND OBTAIN COMMENTSFROMAIR DISTRICTS Courts must “scrupulously enforce” CEQA'slegislatively mandated requirements. (Vineyard Area Citizens, supra, 40 Cal.4" 412, 435.) Case law has firmly established that lead agencies must consult with the relevant air pollution control district before conducting an initial study, and must provide the districts with notice of the intention to adopt a negative declaration (or EIR). (Schenck v. County ofSonoma (2011) 198 Cal._App.4th 949, 958.) As Schenck held, neither publishing the notice nor providing it to the State Clearinghouse wasa sufficient substitute for sending notice directly to the air district. (/d.) Rather, courts “must be satisfied that [administrative] agencies have fully complied with the procedural requirements of CEQA,since only in this way can the important public purposes of CEQAbe protected from subversion.” Schenck, 198 Cal.App.4th at p. 959 (citations omitted).”° | '? We submit that Public Resources Code Section 21083.1 was intendedto prevent courts from, for example, holding that an agency must analyze economic impacts of a project where there are no resulting environmental impacts (see CEQA Guidelines § 15131) , or imposing new procedural requirements, such as imposing additional public notice requirements not set forth in CEQAor the Guidelines. °° Lead agencies must consultair districts, as public agencies with jurisdiction by law overresources affected by the project, before releasing an EIR. (Pub. Resources Code §§ 21104(a); 21153.) Moreover,air 26 Lead agencies should be aware, therefore, that failure to properly seek and consider input from the relevantair district constitutes legal error which mayjeopardize their project approvals. For example, the court in Fall River Wild Trout Foundation v. County ofShasta, (1999) 70 Cal.App.4th 482, 492 held that the failure to give notice to a trustee agency (Department of Fish and Game) wasprejudicial error requiring reversal. The court explained that the lack of notice prevented the Department from providing any response to the CEQA document. (Id.at p. 492.) It therefore prevented relevant information from being presented to the lead agency, which wasprejudicial error because it precluded informed decision-making. (/d.)”! districts should be considered “state agencies” for purposes of the requirementto consult with “trustee agencies”as set forth in Public Resources Code § 20180.3(a). This Court has long ago held that the districts are not mere “local agencies” whoseregulations are superseded by those of a state agency regarding matters of statewide concern, but rather have concurrentjurisdiction over such issues. (Orange County Air Pollution Control District v. Public Util. Com. (1971) 4 Cal.3d 945, 951, 954.) Sinceair pollution is a matter of statewide concern,Jd at 952,air districts should be entitled to trustee agency status in order to ensure that this vital concern is adequately protected during the CEQAprocess. *! In Schenck, the court concluded that failure to give notice to the air district was not prejudicial, but this was partly becausethetrial court had already corrected the error before the case arrived at the Court of Appeal. Thetrial court issued a writ of mandate requiring the lead agency to give notice to the air district. The air district responded by concurring with the lead agency that air impacts were notsignificant. (Schenck, 198 Cal.App.4th 949, 960.) We disagree with the Schenck court that the failure to give noticeto the air district would not have been prejudicial (even in the absence ofthe trial court writ) merely because the lead agency purportedto follow the air district’s published CEQA guidelines for significance. (/d., 198 Cal.App.4th at p. 960.) In the first place, absent notice to the air district, it is uncertain whether the lead agency properly followed those guidelines. Moreover,it is not realistic to expect that an air district’s published guidelines would necessarily fully address all possible air-quality related issues that can arise with a CEQAproject, or that those 27 Similarly, lead agencies must obtain additional information requested by expert agencies, including those with jurisdiction by law,if that information is necessary to determine a project's impacts. (Sierra Club v. State Bd. OfForestry (1994) 7 Cal.4th 1215, 1236-37.) Approving a project without obtaining that information constitutes a failure to proceed in the mannerprescribed by CEQA. (id.at p. 1236.) Moreover,a lead agency can save significant time and money by consulting with the air district early in the process. For example, the lead agency can learn whattheair district recommendsas an appropriate analysis on thefacts of its case, including whatkinds of health impacts analysis may be available, and what models are appropriate for use. This saves the lead agency from the need to doits analysis all over again and possibly needingto recirculate the documentafter errors are corrected,if new significant impactsare identified. (CEQA Guidelines § 15088.5(a).) At the sametime,the air district’s expert input can help the lead agency properly determine whether another commenter’s request for additional analysis or studies is reasonable or feasible. Finally, the air district can provide input on what mitigation measures would befeasible andeffective. Therefore, we suggest that this Court provide guidanceto lead agencies reminding them ofthe importance of consulting with the relevant air districts regarding these issues. Otherwise, their feasibility decisions may be vulnerableto air district evidence that establishes that there is no substantial evidence to support the lead agency decision not to provide specific analysis. (See Berkeley Keep Jets Over the Bay, supra, 91 Cal.App.4th 1344, 1369-1371.) guidelines would necessarily be continually modified to reflect new developments. Therefore webelieve that, had thetrial court not already ordered the lead agencyto obtain the air district’s views,the failure to give notice would have been prejudicial, as in Fall River, supra, 70. Cal.App.4th 482, 492. 28 CONCLUSION The SCAQMDrespectfully requests this Court not to establish a hard-and-fast rule concerning whether CEQArequires a lead agencyto correlate identified air quality impacts of a project with resulting health outcomes. Moreover, the question of whether an EIRis “sufficient as an informational document”is a mixed question offact and law containing two levels of inquiry. Whether a particular proposed analysisis feasible is predominantly a question of fact to be judged by the substantial evidence standard of review. Where the requested analysis is feasible, but the lead agencyrelies on legal or policy reasons not to provideit, the question of whether the EIR is nevertheless sufficient as an informational documentis predominantly a question of law to be judged by the independent judgment standard of review. Respectfully submitted, DATED:April 3, 2015 SOUTH COAST AIR QUALITY MANAGEMENTDISTRICT KURT R. WIESE, GENERAL COUNSEL BARBARA BAIRD, CHIEF DEPUTY COUNSEL By: CarrboroPoor Barbara Baird Attorneysfor Amicus Curiae SOUTH COASTAIR QUALITYMANAGEMENTDISTICT 29 CERTIFICATE OF WORD COUNT Pursuant to Rule 8.520(c)(1) of the California Rules of Court,I herebycertify that this brief contains 8,476 words, including footnotes, but excluding the Application, Table of Contents, Table of Authorities, Certificate of Service, this Certificate of Word Count, and signature blocks. I have relied on the word count of the Microsoft Word Vista program used to prepare this Certificate. DATED:April 3, 2015 Respectfully submitted, Pronoir Barbara Baird PROOF OF SERVICE I am employed in the County of Los Angeles, California. I am over the age of 18 years and not a party to the within action. My business address is 21865 Copley Drive, Diamond Bar, California 91765. On April 3, 2015 I served true copies of the following document(s) described as APPLICATION OF THE SOUTH COASTAIR QUALITY MANAGEMENTDISTRICT FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE IN SUPPORT OF NEITHER PARTY AND [PROPOSED] BRIEF OF AMICUS CURIAEbyplacing true copy of the foregoing document(s) in a sealed envelope addressedas set forth on the attachedservicelist as follows: BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the personsat the addresseslisted in the Service List and placed the envelope for collection and mailing following our ordinary business practices. I am readily familiar with this District’s practice for collection and processing of correspondence for mailing. Underthat practice, the correspondence would be deposited with the United States Postal Service, with postage thereon fully prepaid at DiamondBar, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumedinvalidifpostal cancellation date or postage meter date is more than one dayafter date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws ofthe State of California that the foregoing is true and correct. Executed on April 3, 2015 at DiamondBar, California. at Patricia Andersén POS-1 SERVICELIST James G. Moose, Tiffany K. Wright, Laura M.Harris REMY MOOSE MANLEY, LLP 555 Capitol Mall, Suite 800 Sacramento, CA 95814 Bryan N. Wagner WAGNER & WAGNER 7110 N. Fresno St, Suite 340 Fresno, CA 93720 Sara Hedgpeth-Harris LAW OFFICE OF SARA HEDGPETH-HARRIS 5445 E. Lane Avenue Fresno, CA 93727 Daniel C. Cederborg Bruce B. Johnson,Jr. Zachary Stephen Redmond OFFICE OF THE FRESNO COUNTY COUNSEL 2220 Tulare Street, Suite 500 Fresno, CA 93721 Clerk of the Court California Court of Appeal Fifth Appellate District 2424 Ventura Street Fresno, CA 93721 (via U.S. Mail & Electronic Transmission) Clerk of the Court Superior Court of California County of Fresno 1130 O Street Fresno, CA 93721 POS-2 Attorneys for Real Party in Interest and Respondent Friant Ranch, L.P. Attorney for Real Party in Interest and RespondentFriant Ranch, LP. Attorney for Plaintiffs and Appellants Sierra Club, et al Attorneys for Respondents County ofFresno
