SIERRA CLUB v. COUNTY OF FRESNO (FRIANT RANCH)

Real Party in Interest, Friant Ranch, L.P., Response to Amicus Curiae Brief of Association of Irritated Residents et al., Center for Biological Diversity, Leadership Counsel for Justice and Accountability, and North Coast Rivers Alliance

Cal.June 11, 2015

CASE No. 8219783 SUPREME COURT COPY IN THE SUPREME COURT OF CALIFORNIA SIERRA CLUB, REVIVE THE SAN JOAQUIN,and LEAGUE OF WOMEN VOTERS OF FRESNO Plaintiffs and Appellants y SUPREME GOURT COUNTY OF FRESNO: : Defendant and Respondent JUN 11 2015 FRIANT RANCH,L.P. Frank A. McGuire Clerk Real Party in Interest and Respondent Deputy 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 RosendoA.Pefia ANSWER TO AMICI CURIAE BRIEFS OF ASSOCIATION OF IRRITATED RESIDENTSET AL., CENTER FOR BIOLOGICAL DIVERSITY, LEADERSHIP COUNSEL FOR JUSTICE AND ACCOUNTABILITY, AND NORTH COAST RIVERS ALLIANCE *James G. Moose, SBN 119374 Tiffany K. Wright, SBN 210060 Laura M. Harris, SBN 246064 REMY MOOSE MANLEY,LLP 555 Capitol Mall, Suite 800 Sacramento, CA 95814 Telephone: (916) 443-2745 Facsimile: (916) 443-9017 Email: jmoose@rmmenvirolaw.com twright@rmmenvirolaw.com Attorneys for Real Party in Interest and Respondent FRIANT RANCH,L.P. CASE NO. 8219783 IN THE SUPREME COURT OF CALIFORNIA SIERRA CLUB, REVIVE THE SAN JOAQUIN,and LEAGUE OF WOMEN VOTERSOF FRESNO Plaintiffs and Appellants Vv. COUNTY OF FRESNO Defendant and Respondent FRIANT RANCH,L.P. RealParty in Interest and Respondent After a Published Decision by the Court of Appeal,filed May27, 2014 Fifth Appellate District Case No. F066798 Appeal from the Superior Court of California, County ofFresno Case No. 11CECG00726 Honorable Rosendo A.Pefia ANSWERTOAMICI CURIAE BRIEFS OF ASSOCIATION OF IRRITATED RESIDENTSET AL., CENTER FOR BIOLOGICAL DIVERSITY, LEADERSHIP COUNSEL FOR JUSTICE AND ACCOUNTABILITY, AND NORTH COAST RIVERS ALLIANCE *James G. Moose, SBN 119374 Tiffany K. Wright, SBN 210060 Laura M.Harris, SBN 246064 REMY MOOSE MANLEY, LLP 555 Capitol Mall, Suite 800 Sacramento, CA 95814 Telephone: (916) 443-2745 Facsimile: (916) 443-9017 Email: jmoose@rmmenvirolaw.com twright@rmmenvirolaw.com Attorneys for Real Party in Interest and Respondent FRIANT RANCH,L.P. sa ge B a y n a . e e : TABLE OF CONTENTS I. INTRODUCTION.....cccsecsecsssssssssccsssscsssesscatscsesecssacseassescscecsesceaseses 1 Il. ARGUMENT uoeccecceccceesescsssscsssssessvsvsevsssusseataensacesessasassreasaseeseves 5 A. | NCRA and CBD Are Mistaken in Suggesting that Only through De Novo Review Can Reviewing Courts Ensure that EIRs Are Sufficient as Informational Documents ............cccccccsssceccccsssscescsessscssccsscsessessesuceseseeccececces 5 1. Like administrative findings, EIRs must disclose the agency’s analytic route from raw EVIGENCE tO ACTION .........esscsseccescesesssceccessseseccceceeccececee 6 In reviewing the sufficiency of an EIR’s discussion of a required topic, the court should review the discussionin light of the whole TOCOL........ccsecssessscecessescccecessecsessscesscesssssecsesesuseseeecs 12 NCRA and CBD mischaracterize this Court’s holdings, which demonstrate that reviewing courts must apply the substantial evidence standard to questions concerning the sufficiency of an EIR’s analysis of a required topic................... 15 a. In Laurel Heights I, the EIR’s alternatives analysis failed to satisfy the Topanga requirement, so the Court refused to uphold the agency’s conclusion that there are no feasible off- site alternatives underthe substantial CVIGENCE TOSteo... seeseesesesecsssessscseveceecscessceees 15 In Goleta I, the EIR’salternatives analysis included morethan just bare conclusions, and the Court appropriately examined the whole administrative record in determiningthe sufficiency of the EIR’s discussion .........ccccccsceceesceceeeees 18 Cc. In Vineyard, the Court clearly characterized the EIR’s failure to satisfy the Topangaruleaspart of the Court’s inquiry into the factual adequacyofthe EIR, and not the EIR’s compliance with CEQA’s procedural requirements................. 19 d. NCRA misconstrues statements in Ebbetts Pass to claim that the Court held that the adequacy of an EIR’s scope of analysis is reviewed de novo; on the contrary, the Court held that whether an EIR includesa sufficient level of detail regarding a requiredtopic is a factual question reviewed only for substantial CVIGENCE 000... eecseessesssesseseseecssssevsscseecsssseaseres24 4. Contrary to the claims ofAIR and NCRA, substantial evidence demonstrates the Friant Ranch EIR sufficiently discusses the magnitude ofthe Project’s air quality impacts 0.0.00...26 The Court Should Reject CBD’s Attempts to Conflate the Question of Whether an Agency Has AbusedIts Discretion with the Question of Whether the Agency Failed to Proceed in the Manner Required by Law.............30 The Court Should Reject LCJA’s Argumentsthat CEQA’s Procedural Requirements Mandate a Health Correlation Analysis ...........cccccccssssssssssscssssscescssseereseavecseseses 33 The Court Should Reject AIR’s Argumentthat Public Resources Code Section 21083.1 Does Not Limit the Court’s Ability to Impose New Procedural Requirements under CEQA.......ccsccccsessscssecesectececesesestecsees 36 Friant Ranch’s Operational Air Quality Mitigation Measure Complies with CEQA ....cccccscsssessessessessseseseses38 1. The EIR providessufficient detail regarding the effectiveness of Mitigation Measure #3.3.2 ............ 38 2. Mitigation Measure #3.3.2 is fully enforceable.......40 -ii- 3. Mitigation Measure #3.3.2 is not impermissibly Ceferred ..........ccccccccsssescsssessessecssssscssucssssesssaceseeseesee41 HY. = =CONCLUSION o.ooccccsesscsccscscssssesssecssesscsevecsesecsecsecesecececeesece.44 CERTIFICATE OF WORD COUNT..o.ccccccccccscsscsscececececseseceesececececececcese,46 - iii - TABLE OF AUTHORITIES California Cases Page(s) Berkeley Hillside Preservation v. City ofBerkeley (2015) 60 Cal.4th 1086 0... esecccssessssssssessssscssessessssessessessessesssssssscssssesseecees 37 Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263.0... cceccccsesssssessecssssscsussssavecusssesssussussucsessressisessssaseseseees 22 Citizens Assn. for Sensible Development ofBishop Area v. County ofInyo (1985) 172 Cal.App.3d 151 ....eccsccccssssssssssssesceesssssessuedecsesssstessessacsssesseeeeece 11 Citizens ofGoleta Valley v. Bd. ofSupervisors (1990) 52 Cal.3d 553... ceceecessssssssesscssssesssssesssessurssssssssessssresenssesseseseeee passim Ebbetts Pass Forest Watch v. Cal. Dept. ofForestry (2008) 43 Cal.4th 936 ooo .eeeccscssesessssesssssescssuesessatsvessessssesesessressesess 24, 25, 26 Environmental Protection & Information Center v. California Dept. ofForestry and Fire Protection (2008) 44 Cal.4th 459 oocccescssssssscstsssesssestestestestssseseeressessesssseeeees LI Ernst v. Searle (1933) 218 Cal. 233... eceescssssessessescsssssssssssssessesessrsssssusatsasesessecsissesereeesececs 30 Eureka Teachers Assn. v. Bd. ofEd. (1988) 199 CalApp.3d 353 ....ccccccscsssssesessssessssesessessessestssssesscsressssssessessesseees 7 Fairview Neighbors v. County of Ventura (1.999) 70 Cal.App.4th 238 oo...cccccccssssssesscsssssssssesersessesessesessessueserseserseeces 44 Friends ofMammoth v. Board ofSupervisors (1972) 8 Cah.3d 247.ccccccccsssesesssscscsssstessssessesessesssssatsessssssssssseseveeses 6, 8 Fukuda v. City ofAngels (1999) 20 Cal.4th 805 ooo. ceccccsssscsssssessssssssssssscssesesesstsessessestesssssesatsevecsees 7 Hadley v. City ofOntario (1974) 43 Cal.App.3d 121... cccccccssssscsssstssessssssssssesesesssscsesssssssesseceseeseesees 7 -jiv- California Cases (cont.) Page(s) Laurel Heights ImprovementAssn. v. Regents of University ofCalifornia (1988) 47 Cal.3d 376.0... ceecesesssesesscsssssssstssecssecessasseseesessssesasssessesscsesees passim Laurel Heights Improvement Assn. v. Regents of University ofCalifornia (1993) 6 Cal.4th 1112 oeccccsessescsssssecsssssssseesacsessesessssssessssscessesess 13, 14 Mount Shasta Bioregional Ecology Center v. County ofSiskiyou (2012) 210 Cal.App.4th 184.00... ccccccssssssssssesessesessesssscaeessssssseseseesetenes 39 Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372 ooo eececcccsscsssesesssssssesssssssesersesesssscssesscsssscsssevevsecesences 22 NapaCitizensfor Honest Gov. v. Napa County Bad. ofSupervisors (2001) 91 Cal.App.4th 342.0... ccccecssssssssssessssstssessecesesstsssssessssresssssseverseseee 42 Neighborsfor Smart Rail v. Exposition Metro Line Const. Authority (2013) 57 Cal.4th 439 ooo ccccccseseessssssstsssssssscseetssesesessessesesessscees 11, 23, 33 North Coast Rivers Alliance v. Marin Mun. Water Dist. Bd. ofDirectors (2013) 216 Cal.App.4th 614.0... cccccccscssessssssscsscsssesessesessesussessesesscevessereeees 6 Orinda Assn. v. Bd. ofSupervisors (1986) 182 Cal.App.3d 1145... cccecsssssssssssessecsssssesesessessesseseesessersessceeeeees 7 Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210.......cccccccssssssssscssssessscscssestssessesessesrescssescereeees 11 Sacramento Old City Assn. v. City Council ofSacramento (1991) 229 Cal.App.3d L011... ceccccscssessssssssesssesessecersessecsessessessssnsessecsenes 43 California Cases (cont.) Page(s) Santa Clarita Organizationfor Planning the Environment v. County ofLos Angeles (2003) 106 Cal.App.4th 714......ccccccccssssssesseccessssssessuesssssssssssssssesssesssescesee 20 Santiago County Water Dist. v. County ofOrange (1981) 118 CalApp.3d 818.0... cccccsscssscesssesseesesresessecssssssessrseseesee 21,22, 28 Save Cuyama Valley v. County ofSanta Barbara (2013) 213 Cal-App.4th 1059.......cccsccsssessssssecsessessesuscsssesssessesssessecsesesseeeees 39 Sierra Club v. City ofOrange (2008) 163 Cal.App.4th 523 ......cecccscssssssscsessesssstecssessssesssesscsseceussesceceeee 39 Sierra Club v. State Board ofForestry (1994) 7 CalAth 1215 ee ecccccssecsssssssssesseessessesessecssstssssesseseussseseresee 31, 32 Stanislaus Natural Heritage Project v. County ofStanislaus (1996) 48 Cal.App.4th 182.00... cccccccscsssssssscsesssessesesssssssessssscssssessserseceese. 21 Sundstrom v. County ofMendocino (1988) 202 Cal.App.3d 296 .0......cccscsccsesssscssssscsssesesessussssesssessessssssessescereeeees 43 Topanga Assn. for a Scenic Community v. County ofLos Angeles (1974) 11 Cal.3d 506.0... ceccccecscssssessssssssssssssesessscstsssessessssessesssressseesees passim Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4th 412 occccscsscssssecscsssesssscstecsesssssessssessssesecceseseecees passim Western States Petroleum Assn. v. Super. Ct. (1995) 9 Cal.4th 559 oecccccccscsscsssssscsssssssesecsacscsssuessecssssssarsseseseeseecere 18, 29 -vi- California Statutes Page(s) Code Civ. Proc., § 1085 ...cceccssssssssssssesessssesersesacsessssssessessersscsssesessreeseeseeces 9 Code Civ. Proc., § 1094.5 voiccccceccscccssscsscsssssescssssecscscusterereceesesecseccesececes 7,9 Code Civ. Proc., § 1094.5, subd. (C) ...eecsccsesssssscsesssssssscsssscssscsceseversesseceeeees 7 Pub. Resources Code, § 21000 et Seq. .o...ciccceccsccsecsssessssssesscscsseececsssesssseseeees 1 Pub. Resources Code, § 21002.........ccccccccccsssscecessssssssesesessesessssssssesessereasenees 43 Pub. Resources Code, § 21005 .......cccccccssssscscssssecsccecesserececeeseees 11, 23, 24, 31 Pub. Resources Code, § 21005, subd. (b) oo. teeccccscssesesscsesssscsescsscecsscsscovees 32 Pub. Resources Code, § 21061] ....c.ceccsccssssssssescscssscscssscsssscssseteveseseececeees 1,2 Pub. Resources Code, § 21068.5..0....cccccssccsssssssssessesecesessessesesseseceececees 13, 21 Pub. Resources Code, § 21081, subd. (a)........eeccccccssssesssssssssssssecssecesessseveees 43 Pub. Resources Code, § 21081.6, subd. (a)(1).....c.csssssssssessessssesecsssscssesseeee 40 Pub. Resources Code, § 21083.1....c.c.ccccescscsesssssesessstsssescscscsesececeseees 36, 38 Pub. Resources Code, § 21083.9.....c.cccccsssccsssesssesescsessssssssssesssevavesetessecees 13 Pub. Resources Code, § 21091, subd. (d) ..eeeecceccccsecsssssssecesscsescsceceessossosees 13 Pub. Resources Code, § 21092.) o....ccccccscecsseccsssscsesesescsesesssescececsesesseseseees 14 Pub. Resources Code, § 21093 ......cecssccscsssssescssesecsseccssscscstecsesesereceeecees 21 Pub. Resources Code, § 21094.0......ccccsccssssscecsessscsescsssesesescssecssesscssereveecees 21 Pub. Resources Code, § 21100 ..0..vcccceseccscscesssescssccsssesecssecsecsereecessese 2, 6,8 Pub. Resources Code, § 21100, subd. (b)(1)......eeccsesesssessesescsesssessscsscesees 17 Pub. Resources Code, § 21168........ccccccccsssscssscssecesssesesesesescsecscscseceseees 9, 13 Pub. Resources Code, § 21168.5 0.0... ccccccsssssssssescescsssscsesecseseeseesecesecececsees 1,9 Pub. Resources Code, § 21177 ......cccccccscsesscsscsssescscsescsessscscsessscececssceseeeess 39 Pub. Resources Code, § 21177, subd. (a)......e.ccccccsssscsesesessseseeseeees 27, 28, 30 Pub. Resources Code, § 71110... eceecssscsseccssscesesscesssscesescessectecsesecees 34, 35 Pub. Resources Code, § 71113 ....ccccccccsssssccssssscscsessssscssssscsssssccesesavereesees 35 Federal Statutes A2 U.S.C. § 4321 et SOQ... cccccssscsssssssssccssececessssscssssessacacscsesssscsssesaveseesens 34 - Vil - California Regulations [Cal. Code Regs., tit. 14, § 15000 et seq. ("CEQA Guidelines")] Page(s) CEQA Guidelines, § 15000 et Seq. ....c.eecccecssssessesesecssssssscesesersecstssseecescecesces 2 CEQA Guidelines, § 15005, subd. (C) oo... eeseecsessesssssssesessescsecscssersssseseeececees 43 CEQAGuidelines, § 15005, subd. (b) .....ccccccceccescscsssscssecsceseceseecsseccesceseses 33 CEQA Guidelines, § 150820000000... cccccsssscssssssstesessscsesssseresessseseesescesesceeeese. 13 CEQA Guidelines, § 15083 ........ccccccsccscssscssseesessssessessessessscssessessssseseeceecees 13 CEQA Guidelines, § 15088..........ccccccccscsssssscstssssesessessesscscscssessessssseeseceecees 13 CEQA Guidelines, § 15088, subd. (C) o....t.cessssesessssessessssssessesesscseerceseeseces 13 CEQA Guidelines, § 15088.5.......cccccccsscssseccssesesessessesseasscssssssesssesesessesece. 14 CEQA Guidelines, § 15091, subd. (b) oo. .ceccecsecscsessssssesesssscsscsssessseeceeceseees 9 CEQA Guidelines, § 15126.2......c.cccscsessssssssesssstssssessesssstsscscsvassssssesessececesees 2 CEQA Guidelines, § 15126.2, subd. (a) ...ceccecceccesssssssssessessccescsssseseseececes 3, 33 CEQAGuidelines, § 15126.4, subd. (a)(1)(B) ...ecessesssssscsesscsccssecssecseecesees 42 CEQA Guidelines, § 15126.4, subd. (a)(1)(D).....eecesccssesssscccsscsessssccsecseeees 23 CEQA Guidelines, § 15126.6, subd. (C) v.eseecessesscsssscsecsesessscssseccssseeseseeceee 16 CEQA Guidelines, § 15150, subd. (C) oo. eceeccecsessssssessessesessecescsscsseesseseecees 21 CEQA Guidelines, § 15151 .cccccccccscsssscssesessessesessessestescecssscstcstseesereececee 39 CEQA Guidelines, § 15152......c.cccccccssssssssssssssssssstssessesscasssssssesesssesereevecee 21 CEQA Guidelines, § 15370.......ccccccccssscecssssesesssssssstsssscecscsseveserseseeceeeeeece. 43 CEQA Guidelines, § 15378 .......ccccccsssscccssscscsessesssesesssscssssssessesesecssseesereeceees 21 Other Authorities Sen. Bill No. 722 (1993-1994 Reg. Sess.), p. 2e..ccccsscsscsssesessesessecsssssecseeces 37 - Vili - I. INTRODUCTION It is understandable thatpetitioners challenging projects under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)'’ would desire the courts to review the sufficiency of environmental impact reports (EIRs) with no deference to the lead agencies whoprepared them. A project opponent cannotobtain a favorable de novo standard of review, however, simply byuttering the incantation “the EIR fails as an informational document.” By definition, an environmental impactreport (EIR) is “an informational document.” (§ 21061.) To succeed in serving this function, the EIR must comply with all explicitly mandated procedural requirements and must be supported by substantial evidence. (§ 21168.5.) In other words, questions regarding the sufficiency of an EIR as an informational documentare not limited solely to procedural questions. The arguments of amici North Coast Rivers Alliance (NCRA)and Center for Biological Diversity (CBD) significantly downplaytherigor of the substantial evidence standard. NCRA and CBD suggest that under the substantial evidencetest, courts would have to uphold EIRsthat set forth only bare conclusions, provided those conclusions are supported by ' Unless otherwise specified, hereafter all statutory references are to the Public Resources Code. substantial evidence somewhere in the record. Indeed, CBD suggests that the substantial evidence standard provides no review atall. NCRA and CBDare wrong. RealParty in Interest Friant Ranch,L.P. (Real Party) does not argue that such minimalist efforts at compliance pass legal muster. Implicit in the substantial evidence standardofreview is a requirement for EIRsto analyze and explain the evidence on which their conclusions are based. Asthis Court has emphasized, “the EIR must contain facts and analysis, not just the agency’s bare conclusionsor opinions.” (Laurel Heights ImprovementAssn.v. Regents ofthe Univ. of Cal. (1988) 47 Cal.3d 376, 404 (Laurel Heights 1.) While CEQA requires EIRs to provide agencies andthe public with “detailed information” about the significant effects of a proposed project, neither the Act nor the Guidelines specify what amountof“detail” or analysis is sufficient. (§§ 21061, 21100; Guidelines, §§ 15126.2.)? Instead, lead agencies administering CEQA mustdetermine, on a case-by-case basis, what levels of detail and analysesare necessary and appropriate for any given project and any given specific impact. Lead agenciesare in the best position to makethese decisions because they have the technical expertise necessary to do so. * The CEQA Guidelines (hereafter, “Guidelines”) are codified in California Code of Regulations,title 14, section 15000 et seq. In reviewinga claim that an EIR lacks sufficientdetail or analysis of a required topic, a court therefore should notstep into the shoes ofthe lead agency and determine, de novo, whether more information and analysis is required. Instead, the court should examine the EIR’s discussion of a required topic in light of the complexity ofthe underlying issues as reflected in the administrative record as a whole. In other words, in evaluating whetherthe extent of an EIR’s discussion ofa required topic is sufficient under CEQA,a court should apply the substantial evidencetest. NCRA and CBDhavefailed to offer persuasive reasons for a different, less deferential approach. This Court should also reject the arguments of amici Association of Irritated Residentsetal. (collectively, “AIR”) and Leadership Counsel for Environmental Justice and Accountability (LCJA)to the effect that the subject EIR’s air quality analysis violates CEQA. Because amici’s arguments talk in broad generalities, they do not address the arguments made by RealParty in its briefs before this Court, and are not based upon the administrative record. These amici’s briefs thus addlittle to the discussion of the actual issues before this Court. As Real Party previously explained in its Opening Brief on the Merits andits Reply Brief on the Merits, substantial evidence supports the County of Fresno’s conclusion that the air quality analysis is sufficient. The analysis fully complies with the directive of Guidelines section 15126.2, subdivision (a), that an EIR _3- “should”discuss the relevant specifics of the “health and safety problems caused by the physical changes.” Finally, the Court should reject the arguments ofAIR and CBDthat Friant Ranch’s operational air quality mitigation measure violates CEQA. Like the Court of Appeal below, AIR ignores the fact that Mitigation Measure #3.3.2 will be enforced through the Mitigation Monitoring Program adopted by the County for Friant Ranch. Andlike Appellants Sierra Clubetal. (collectively, “Appellants”), CBD misconstrues Real Party’s argument as suggesting that CEQA’s mitigation requirements do not apply to significant and unavoidable impacts. Real Party has said nothing ofthe sort. Real Party has simply noted the practical reality that quantified performance standards maynot befeasible or necessary in every case, particularly for plan-level projects, such as Friant Ranch. Since lead agencies generally invoke performance standardsas a basis for showing a commutment to mitigate impacts to less-than-significant levels, there is no generally applicable legal requirement that mitigation measures for significant unavoidable impacts must always include performance standards in order to meet CEQAstandards. For the reasons presentedherein, in Real Party’s priorbriefs, and in the amici briefs filed by otherparties in support of Real Party, the Court should reverse the Court of Appeal below andhold(i) that the sufficiency of EIRs’ discussions of required topics are reviewed under the substantial -4. evidence standard; (ii) that the Friant Ranch EIR’s air quality analysis complies with CEQA’s procedures and is supported by substantial evidence; and(iii) that substantial evidence demonstrates that MM #3.3.2 is enforceable, is not impermissibly deferred, and otherwise complies with CEQA. II. ARGUMENT A. NCRA and CBDAre Mistaken in Suggesting that Only through De Novo Review Can Reviewing Courts Ensure that EIRs Are Sufficient as Informational Documents. NCRA and CBDpresenta caricature of Real Party’s arguments when they suggest that Real Party advocates a position by which the courts would have to uphold EIRsthat state only bare conclusions without any facts and analyses supporting those conclusions. (See e.g., Amicus Curiae Brief ofNorth Coast River Alliancefiled in Support of Plaintiffs and Appellantset al. [hereafter, “NCRA Brief”], p. 20; Amicus Brief of Center for Biological Diversity [hereafter, “CBD Brief”, p. 9.) Like these amici, RealParty readily agrees that CEQA requires an EIR to includefacts and analysis, not bare conclusions. (Laurel Heights I, supra, 47 Cal.3d at p- 404.) In doing so, moreover, the EIR mustset forth the “analytic route” the agency traveled from evidenceto action. (/bid., citing Topanga Assn. fora Scenic Community v. County ofLos Angeles (1974) 11 Cal.3d 506, 515 (Topanga).) What NCRA and CBDignoreis that these requirements are implicit in the substantial evidence standardofreview, not the “failure to proceed” standard, as discussed below.(Topanga, supra, 11 Cal.3d at pp. 514-516; see also North Coast Rivers Alliance v. Marin Mun. Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 637, internal quotations omitted [“[u]nder the substantial evidencestandard ofreview, the question is whether[the lead agency] reasonably and in good faith discussed [the environmental impact] in detail sufficient for the public to discern from the EIRthe analytic route the agency... traveled from evidenceto action”].) 1. Like administrative findings, EIRs mustdisclose the agency’s analytic route from raw evidenceto action. This Court has long recognized that EIRsserve a function similar to that of administrative findings. In Friends ofMammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 270 (Friends ofMammoth), the Court explained that an EIR functions as the practical equivalent of an extended set of administrative findings: In light of the statewide concern expressed by the Legislature for written findingsin the field of ecology, as evidence by [CEQA’s environmental] impact report, the proper construction of the words“findings” or “found” requires a written statement of the supportive facts on which the agency has madeits decision. Sincethis report involves the assessment of a myriad of elements (see § 21100)it obviously includesall those facts which would be contained in written findings if such findings were required by ordinance. Accordingly, the written report affords plaintiffs the same benefits that would be achieved by written findings pursuant to the ordinance[.] (Jbid., italics original.) In its seminal decision in Topanga, this Court held that implicit in the substantial evidence standard of review under Code of Civil Procedure section 1094.5 is a requirementthat an agency rendering a quasi- adjudicatory decision “set forth findings to bridge the analytic gap between raw evidence and the ultimate decision and order.” (Topanga, supra, 11 Cal.3d at p. 515; see also Orinda Assn. v. Bd. ofSupervisors (1986) 182 Cal.App.3d 1145, 1161 [explaining the same].)? The Topanga Court emphasizedthat these findings serve several functions: A findings requirement serves to conduce the administrative body to draw legally relevant sub-conclusions supportive of its ultimate decision; the intended effectis to facilitate orderly analysis and minimizethe likelihoodthat the agencywill 3 The implicit requirement for express findings also applies in administrative mandamusactions in which a court exercisesits independent judgmenton an agency’s decision, such asin cases involving fundamental vested rights. (Hadley v. City ofOntario (1974) 43 Cal.App.3d 121, 129.) Notably, even in such cases, the courts do not review the agency’s findings de novo. Rather, in applying the independent judgmenttest under Code of Civil Proceduresection 1094.5, subdivision (c), a court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence. (Fukuda v. City ofAngels (1999) 20 Cal.4th 805, 809, 810-824; see also Eureka Teachers Assn. v. Bd. ofEd. (1988) 199 Cal.App.3d 353, 366 [“[t]o allow the parties to challenge every administrative decision with anothertrial de novo would be a waste ofboth administrative and judicial resources, and the administrative hearings would be nothing morethan perfunctory gestures”].) randomly leap from evidence to conclusions. [Citations.] In addition, findings enable the reviewing court to trace and examine the agency’s modeofanalysis. [Citations.] [4] Absent such roadsigns, a reviewing court wouldbe forced into unguided and resource-consuming explorations; it would have to grope through the record to determine whether some combination of credible evidentiary items which supported some line of factual and legal conclusions supportedthe ultimate orderor decision of the agency. Moreover, properly constituted findings enablethe parties to the agency proceedingto determine whether and on whatbasis they should seek review. [Citations.] They also serve a public relations function by helping to persuadetheparties that administrative decision-making is careful, reasoned, and equitable. (11 Cal.3d at pp. 516-517.) As indicated, EIRs provide similar benefits. (Friends ofMammoth, supra, 8 Cal.3d at p. 270, citing § 21100.) Like findings, EIRs must contain roadsigns linking evidenceto action, so as to allow reviewing courts and the public to “fulfill their proper roles in the CEQA process.” (Laurel Heights I, supra, 47 Cal.3d at p. 404.) Also like findings, EIRsserve a public relations function by helping foster informed decisionmaking and informed public participation. (Ibid.; Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4th 412, 445 (Vineyard) [because the EIR did notdisclose the agency’s analytic route, the EIR wasnot “sufficient to allow informed decisionmaking”].) By requiring agencies to “show their work” in EIRs,the substantial evidence standard of review helpsensure satisfaction of CEQA’sgoals of informed decisionmaking and informed public participation. In Laurel Heights I, the Court explicitly drew a connection between the necessity of express findings under Topanga andthe standard of review for EIRs under CEQA.‘ The Laurel Heights I Court explained that under Public Resources Codesection 21168.5: “[a]buse ofdiscretion is established if the agencyhasnot proceeded in the mannerrequired bylaworifthe determination or decision is not supported by substantial evidence.”Asa result of this standard, “[t]he Court does not pass uponthe correctness of the EIR’s environmental conclusions, but only uponits sufficiency as an informative document.”[Ciation.] This standard ofreview is consistent with the requirement that the agency’s approvalofan EIR “shall be supported by substantial evidencein the record.” (Guidelines, § 15091, subd.(b).) In applying the substantial evidence standard,“the reviewing court must resolve reasonable doubts in favor of the administrative finding and decision.” ([Topanga, supra, 11 Cal.3d at p. 514.].) (dd. at p. 392,italics added.)> * Although Laurel Heights I involved review under Public Resources Code section 21168.5, which applies to quasi-legislative decisions brought in traditional mandamus(CodeCiv. Proc., § 1085), while 7opanga addressed review under administrative mandamus (CodeCiv.Proc., § 1094.5), the Laurel Heights I Court explained that, for purposes of CEQA,the difference between traditional mandamus (§ 21168.5) and administrative mandamus(§ 21168) “is mostly academic because the standard ofreviewis essentially the same undereither section, i.e., whether substantial evidence supports the agency’s determination.” (Laurel Heights I, supra, 47 Cal.3d at p. 392, fn. 5; see also Vineyard, supra, 40 Cal.4th at p. 427, fn. 4 [same].) ° CBDcites the first paragraph quoted above and insists, without cogent argument, that in passing uponthe sufficiency of an EIR asan informative document, the courts review the EIR de novo.(See e.g. CBD Briefpp. 4-7) CBDis mistaken. As is made clear by the very next paragraph in Laurel Heights I (quoted above): “[t]his standard of review” — i.e., the standard of (Continued) This deferential standard is appropriate because the administrative agency has technical expertise to aidit in arriving at its decisions. Because of this expertise, courts should not interfere lightly with the technical judgments madebythe agency. (See Laurel Heights I, supra, 47 Cal.3d at p. 393.) The courts “haveneither the resources nor scientific expertise” to weigh conflicting evidence. (Ibid.) Based on Topanga, the Court in Laurel Heights I made clear that, like administrative findings, EIRs must include road signs linking the evidence supporting the EIRsto their analyses and conclusions. An EIR must disclose the “‘analytic route the ... agency traveled from evidenceto 3299action.” (Laurel Heights I, 47 Cal.3d at p. 404, quoting Topanga, supra, 11 Cal.3d at p. 515.) Stated more broadly, “[a]n EIR mustinclude detail sufficient to enable those who did notparticipateinits preparation to understand and consider meaningfully the issues raised by the proposed project.” (Laurel Heights I, supra, 47 Cal.3d at p. 404; compare Topanga, supra, 11 Cal.3d. at p. 516 [explaining purposes of findings requirement].) To establish the agency’s analytic route from evidenceto action, the EIR ““must contain facts and analysis, notjust the agency’s bare conclusions[.]’ (Continued) review under which the courts are only to pass upon the EIR’s sufficiency as an “informational document” — “is consistent with the requirementthat the agency’s approvalofan EIR‘shall be supported by substantial evidence in the record.’” (Laurel Heights I, supra, 47 Cal.3d at pp. 392-393,italics added.) -10- [Citations].” (Laurel Heights I, supra, 47 Cal.3dat p. 404; see also Planning and Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 249-250 [same]; EnvironmentalProtection & Information Center v. California Dept. ofForestry and Fire Protection (2008) 44 Cal.4th 459, 516-517 [underthe Topanga tule, “mere conclusory findings without reference to the record are inadequate”]; Citizens Assn. for Sensible Development ofBishop Area v. County ofInyo (1 985) 172 Cal.App.3d 151, 171 [“[ml]ere conclusions simply provide no vehicle for judicial review”’].) If the EIR does notsatisfy these requirements implicit in the substantial evidence standard, the court should hold that the agency abused its discretion under that standard. (Laurel Heights I, supra, 47 Cal.3d at pp. 392-393.) If the abuse ofdiscretion deprived decisionmakers or the public “substantial information relevant to approving the project,” the court should hold the agencyprejudicially abused its discretion under section 21005. (Neighborsfor Smart Rail v. Exposition Metro Line Const. Authority (2013) 57 Cal.4th 439, 465 (Neighbors) [plur. opn.].) The existenceofthese analytic requirements implicit in the substantial evidence standard of review does not suggest, as NCRA and CBD would havethis Court believe, that all claims challengingthe sufficiency of an EIR’s discussion must be reviewed de novo. Rather, as discussed below, such claims must be -l1- reviewed underthe substantial evidence standard,in light of the record as a whole. 2. In reviewing the sufficiency of an EIR’s discussion of a required topic, the court should review the discussion in light of the whole record. In determining what amountofdetail and analysis is “sufficient” in an EIRto allow those whodid notparticipate in the EIR’s preparation to understand and evaluate the evidence, the court should review the record as a whole in orderto assess the complexity of the issues and thus the extent of explanation necessary to support the EIR’s factual conclusions. For very complex issues, as revealed in the administrative record, extensive explanation could be necessary to conveyto the public, decisionmakers, and the courts the bases on which the EIR reachesthe conclusionsthatit does. For relatively simple issues, in contrast, less extensive discussions could suffice. The amountof analysis and explanation thatis required necessarily depends on the nature of the underlying issues andthe facts and circumstances surrounding a proposedproject. In reviewing an administrative record to determine how much information is sufficient for a particular EIR’s discussion of a particular required topic, a reviewing court should pay special attention both to the input submitted to the lead agency andto the lead agency’s responses to such input. Input from other agencies and the public comes both during the -12- “scoping”? process and in comments onthedraft EIR, while the lead agency’s responsesto such inputtakes the form of draft EIR text and responses to commentsin a final EIR. (§§ 21168, 21068.5; Citizens of Goleta Valley v. Bd. ofSupervisors (1990) 52 Cal.3d 553, 569-570 (Goleta IT).) As ably discussed in the amicus brief of the League of California Citieset al., (collectively “League”), CEQA’s public- and agency- consultation requirementsact as a safeguard to ensure that lead agencies address agencies’ and the public’s concerns aboutthe sufficiency of an EIR. (Amicus Curiae Brief of League of California Citiesetal. [hereafter, “League Brief”], § IV.F, pp. 38-40.) If members ofagenciesor public are confused or require more information in order to be able to meaningfully understand the environmental impacts of a proposedproject, such persons should let the lead agency know of such concernsin their comments on a draft EIR. (§ 21091, subd. (d); Guidelines, § 15088.) In its final EIR, the lead agency must then provide a good-faith, reasoned analysis in response to such comments. (Guidelines, § 15088, subd. (c); Laurel Heights ImprovementAssn. v. Regents ofthe Univ. ofCal. (1993) 6 Cal.4th 1112, 1124 (Laurel Heights II).) If the new information addedto the final EIR in ° See Guidelines, §§ 15082 (Notice of Preparation requirement), 15083 (early public consultation); and Pub. Resources Code, § 21083.9 (statutory requirement for “scoping meetings”). -13- response to commentsis “significant,” the agency must recirculateall or a portion of the EIR for another roundofpublic and agencyconsultation. (§ 21092.1; Guidelines § 15088.5; Laurel Heights I, supra, 6 Cal.4th at pp. 1126-1130.) This comment-and-response requirementnot only provides a mechanism to ensure that lead agencies, in goodfaith, address in writing environmental concemsraised by other agencies and the public, the requirementalso provides reviewing courts with insights into whether those whodid not participate in the EIR’s preparation believed themselves to be adequately informed. In determining whether an EIR providessufficient information on a required topic, therefore, a court should review the public and agency comments on the draft EIR andthe lead agency’s responses. Such review will allow the court to determine whether substantial evidence—in light of the whole record—supports the agency’s factual conclusions notwithstanding any complexities raised through input from the public and other agencies. Finally, if substantial evidence,in light of the wholerecord, supports the agency’s conclusion that the amount of information presented in the EIRis “sufficient,” the court should uphold the EIR evenifthe court believes that additional information would have been helpful or informative. It is not for the courts to “design the EIR.” (Laurel Heights I, supra, 47 Cal.3d at p. 415.) _14- 3. NCRA and CBD mischaracterize this Court’s holdings, which demonstrate that reviewing courts must apply the substantial evidence standard to questions concerning the sufficiency of an EIR’s analysis of a required topic. a. In Laurel Heights I, the EIR’s alternatives analysis failed to satisfy the Topanga requirement,so the Court refused to uphold the agency’s conclusion that there are nofeasible off-site alternatives under the substantial evidencetest. NCRA and CBDarguethat the Court in Laurel Heights I must have applied its independent judgmentto the sufficiency ofthe respondent university’s EIR as an informational document becausethe EIRfailed to “include detail sufficient to enable those who did not participate in its preparation to understand andto consider meaningfully the issues raised by the proposed project.”” (NCRA Brief, p. 10, quoting Laurel Heights I, supra, 47 Cal.3d at p. 405; see also CBD Brief, pp. 4-5.)’ As discussed 7NCRA statesthat the respondent agency’s position in Laurel Heights I that there were no feasible alternative sites is “conceptually indistinguishable” from Real Party’s position in this case. (NCRA Brief,p. 9.) Specifically, NCRA characterizes the “essence” of Real Party’s argumentto be that “because [the County] had already determined internally that it would be infeasible to determine the magnitudeofthe project’s human health impacts, there was reasonto include such an analysis in the EIR.” (/bid., fn. 1, italics original.) NCRA’s argumentis untenable. First, the County did not “internally” determine that it would be infeasible to provide more specific information aboutthe Project’s air quality health effects; the County explainedtherationale for its conclusion in the Final EIR’s responses to comments. (Administrative Record [“AR”] 4602; see also Amicus Curiae Brief of the San Joaquin Valley Unified Air Pollution Control District [hereafter, “STVUAPCDBrief”] pp. 11-15 [explaining the same].) Although the County did not explain whya regional health correlation analysis is infeasible, this is because the Court of Appeal (Continued) -15- above, however, the requirementfor an agencyto include enough informationto allow those whodid notparticipatein its preparation to understand and meaningfully consider the conclusions madethereinis implicit in the substantial evidence standard ofreview, as the Court made clear in Laurel Heights I. (47 Cal.3d at p. 404, quoting Topanga, supra, 11 Cal.3d at p. 515.) As a result of this standard, the Laurel Heights I Court refused to uphold the EIR’s analysis of off-site alternatives, which stated only that no other sites had “space available of sufficientsize to accommodate”the project. (Laurel Heights I, supra, 47 Cal.3d at p. 403.) (Continued) raised this issue sua sponte based onthe court’s misunderstanding ofthe City of Fresno’s commenton the Draft EIR. (See ibid.) Furthermore, unlike CEQA’s requirements for an EIR’s alternatives analysis, which require the EIRto briefly discuss the alternatives rejected as infeasible during the EIR’s scoping process (see Guidelines, § 15126.6, subd. (c)), CEQA does not require an EIRtolist all of the theoretically available methodologies that were not undertakenorto explain why all such methodologies were infeasible or unnecessary. (See Real Party’s AnswerBrief to the Amicus Curiae Brief of the South Coast Air Quality ManagementDistrict, § II.B; see also Laurel Heights I, supra, 47 Cal.3d at p. 415 [that additional analysis might be helpful does not makeit necessary].) ® The alternatives analysis at issue in Laurel Heights I can be characterized as both procedurally and factually deficient. Procedurally, the EIR failed to include any discussion expressly required by CEQA(a discussion of alternatives, rather than a mere “identification” of alternatives). Factually, the EIR failed to provide more than just the bare conclusionthat alternative locations were infeasible; as such, the conclusion could not be upheld under the substantial evidence test becauseit failed to satisfy the Topangarule. (id. at pp. 400-407;see also Real Party’s Opening Brief on the Merits [hereafter, “Opening Brief’], p. 24.) From a practical standpoint, there is likely little meaningful difference between the two standardsofreview with respect to EIRsthat only state bare conclusions withoutany facts or (Continued) - 16 - W H E A T O K L e Because the EIR contained noactual analysis of any alternatives whatsoever, the Court was unwilling to take on “blind trust” the respondent agency’s promisethatit had actually consideredoff-site alternatives and rejected them as infeasible. (Laurel HeightsI, supra, 47 Cal.3d at p. 404; see also Goleta II, 52 Cal.3d at p. 569 [explaining the same].) As the Court explained: “[w]ithout meaningful analysis ofalternatives in the EIR, neither the courts nor the public canfulfill theirproperrolls in the CEQA process.” (Laurel Heights I, supra, 47 Cal.3d at p. 404,italics added.) Accordingly, the Court held the EIR waslegally inadequate. (Jd. at p. 406.)? (Continued) analysis supporting those conclusions. In such a case, the agencyhaslikely violated an express procedural requirement(such as the requirement to includea “detailed statement”setting forth all significant effects ofthe proposedproject). (§ 21100, subd. (b)(1).) The EIR would also not satisfy the Topanga rule and therefore the EIR’s conclusions could not be upheld underthe substantial evidence standard. This is not the case with the Friant Ranch EIR, however, which includes a detailed discussion of the project’s air quality impacts, and the question is how muchdetail is “sufficient.” Because the question ofhow muchdetail to put into an EIR necessarily requires the lead agencyto exercise its informed judgment, the courts must review the agency’s decisions aboutthe level ofdetail under the substantial evidence standard of review, rather than the de novo standard. (See OpeningBrief, § IV. A. pp. 9-36; League Brief, § IIL, pp. 20-31, Amicus Curiae Brief of the California Building Industry etal. [hereafter, “CBIA Brief], § ILA, pp. 5-20.) * A great deal of confusion has arisen in the briefings against Real Party in this case based on the term “legal” (as usedin phrases such as “legally insufficient” and “legally inadequate”). A “legal” deficiency must be distinguished from a “procedural” deficiency. As explained in Real Party’s Reply Brief on the Merits (pp. 16-17), both the “substantial evidence” standard of review andthe “failure to proceed” standard involve “legal issues” in that an abuse ofdiscretion undereither standard is a legal failure. (Continued) -17- b. In Goleta IT, the EIR’salternatives analysis included more than just bare conclusions, and the Court appropriately examined the whole administrative record in determining the sufficiency of the EIR’s discussion. Goleta IT illustrates the appropriateness of applying the substantial evidencestandardofreview to questionsofthe sufficiency of an EIR’s discussionofa required topic. In contrast to the EIR at issue in Laurel Heights I, in the EIR at issue in Goleta IT “discussed a full range of alternatives, including an in-depth discussion ofoneoff-site alternative.” (Goleta IT, supra, 52 Cal.3d at p. 569, distinguishing Laurel HeightsI, supra, 47 Cal.3d 376.) The Court in Goleta Irejectedthe petitioner’s challenge to the sufficiency of the EIR’s alternatives discussion. The Court explainedthat, although a reviewing court will not uphold an EIR thatsets forth only bare conclusions, courts may, where warranted by circumstances, examine the whole administrative record in assessing the adequacy of an EIR. (/d. at pp. 568-570.) Reviewing the administrative record as a whole, the Court in Goleta IT held that substantial evidence supported the respondent county’s findings (Continued) (Western States Petroleum Assn. v. Super. Ct. (1995) 9 Cal.4th 559, 573 (WSPA) [whether an agency’s findings and decisionsare supported by substantial evidenceis a “question of law”].) This does not mean, however, that any time a court determines ananalysis to be “legally inadequate,”the court must have applied the de novo standard of review. (Compare NCRA Brief, pp. 9-10 [stressing that the Court in Laurel Heights I held that the alternative discussion was “legally inadequate”].) -18- rejecting alternatives that had been proffered by the petitioners after the close ofpublic commenton the draft EIR. (Goleta II, supra, 47 Cal.3 at pp. 570-575.) In rejecting the petitioner’s challengeto the sufficiency of the EIR’s alternatives discussion, the Court was also persuaded by the fact that the petitioners had not submitted their suggested alternatives early enough in the process for the county to consider them in the text of the EIR. (Ud.at pp. 569-570.) Under such circumstances,it was appropriate for the Court to reject those alternatives via administrative findings, rather than in an EIR. (Id. at p. 570.) Had the Court in Goleta IT reviewed the sufficiency of the EIR’s discussion ofalternatives de novo—as NCRA and CBD urge should be the standard—the Court would havehadto ignore record evidence beyond the EIRtextitself in assessing the sufficiency of the EIR’s alternative analysis. c. In Vineyard, the Court clearly characterized the EIR’sfailure to satisfy the Topanga rule as part of the Court’s inquiryinto the factual adequacy ofthe EIR, and not the EIR’s compliance with CEQA’s procedural requirements. In Vineyard, the Court foundthe EIR at issue to be both factually and procedurally deficient. (Vineyard, supra, 40 Cal.4th at p. 447 [summarizing the EIR’s factual and procedural errors].) Contrary to NCRA and CBD’s suggestions, the Vineyard Court considered the EIR’s failure to set forth the agency’s “analytic route” from evidenceto actionto violate CEQAunderthe substantial evidence standard. (Id. at pp. 439, 445, 447.) -19- The Court explained: “[flactual inconsistencies and lack of clarity in the FEIR leave the reader—andthe decision makers—without substantial evidencefor concluding that sufficient wateris, in fact, likely to be available” for the project. (/d. at p. 439,italics added; see also id. at p. 445 [explaining that the EIR is factually deficient for failing to disclose the analytic route the agencytraveled from evidence to action].) In other words, due to the EIR’s lack of a coherent and consistent explanation concerning the evidence on which its long-term water conclusions were based, the Court could not uphold the EIR underthe substantial evidencetest. (Id. at p. 439; see also p. 447 [“[flactually, the FEIR’suseofinconsistent supply and demandfigures, andits failure to explain how those figure match up,results in a lack of substantial evidence that new surface water diversionsare likely to supply the project’s long- term needs”].) Becauseofthis factual failing, the EIR “[did] not serve the purpose of sounding an environmental alarm bell.” (Id. at p. 441, internal quotations omitted; see also Santa Clarita Organizationfor Planning the Environmentv. County ofLos Angeles (2003) 106 Cal.App.4th 714, 721— 724[holding that the respondent agency’s approval of an EIR was not supported by substantial evidence becausethe EIR failed to disclose uncertainties inherent in the proposed watersupply].) In contrast, the proceduralerrors identified by the Court in Vineyard consisted of violations of ascertainable procedural requirementsset forth in - 20 - the Act and the Guidelines. Procedurally, the EIR violated CEQAfor attempting to tier from a future environmental document. (Vineyard, supra, 40 Cal.4th at p. 440;see id. at p. 429,fn.6, citing §§ 21068.5, 21093, 21094; Guidelines, § 15152; Stanislaus Natural Heritage Project v. County ofStanislaus (1996) 48 Cal.App.4th 182, 197-201 (Stanislaus) [same].) The EIR also failed to follow CEQA’sprocedures for incorporation by reference. (Vineyard, supra, 40 Cal.4th at pp. 443-444,citing Guidelines, § 15150, subd. (c).) And the EIR failed to analyze the foreseeable effects of implementing the project’s water supply mitigation measure,in violation of CEQA’s procedural requirementto analyzethe reasonably foreseeable effects of the project as a whole. (Vineyard, supra, 40 Cal.4th at pp. 444, 447; see also Santiago County Water Dist. v. County ofOrange (1981) 118 Cal.App.3d 818, 829 (Santiago) [EIRfailed to analyze the whole ofthe project by failing to considerthe effects of the new waterinfrastructure that would be required to serve the project]; Stanislaus, supra, 48 Cal.App.4th 182 [EIRfailed to discuss water supply beyondinitial five years of the project and thus failed to address the reasonably foreseeable significant effects of the project].) Under CEQA,an agencyhas nodiscretion to analyze only a portionofthe project it is reviewing, so sucha failureis appropriately reviewed de novo.!° '° See e.g., Guidelines, § 15378 (“‘Project’ means the wholeofan action, (Continued) -21 - In its brief, NCRA accuses RealParty of mischaracterizing Vineyard, butit is NCRA that has doneso by piecing together fragments of sentences in that decision in a misleading way in order to support its position. (See NCRA Brief, pp. 7-8.) NRCAstatesthat the Vineyard Court found that the EIR’s failure to analyze the effects of implementing the water supply mitigation measure “prevented the EIR from ‘adequately ... inform[ing] decision makersandthe public’ and therefore ‘the County erred procedurally.”’ (NCRA Brief, p. 11, quoting Vineyard, supra, 40 Cal.4th at p. 444,italics added by Real Party.) What the Court actually stated, however, was that a “curtailment” mitigation measure, by which development could be halted if water supplies ran out part way through project buildout, could serve to supplement an EIR’s discussion ofthe impacts of exploiting the intended water sources; in that case, however, the EIR, in order adequately to inform decision makers and the public, would then needto discuss the probability that the intended water sources for later phases of developmentwill not eventuate, the environmental impacts of curtailing the project before completion, and mitigation (Continued) whichhasthe potential for resulting in [an environmental change]”); Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 381-383 (same); Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 283 (CEQA prohibits an agency from “chopping a large project into many little ones—each with a minimalpotential impact on the environment—which cumulatively may have disastrous consequences”); see also Santiago, supra, 118 Cal.3d at p. 829 [“‘[a]n accurate, stable and finite project description is the sine qua nonofan informative and legally sufficient EIR’[Citation.]”’].) ~22- Se w a t s a t e s al M c a a measures planned to minimize any suchsignificant impacts. The Sunrise Douglas FEIR did not attempt such an analysis. In this respect as well, the County erredprocedurally. (Vineyard, supra, 40 Cal.4th at p. 444,italics added.) While both CEQA’s procedural requirements and CEQA’s requirement for agencies to support their EIRs’ factual conclusions with substantial evidence serve to adequately inform decisionmakers and the public, the procedural violation identified by the Vineyard Court was not that the EIR precluded informed decisionmaking. Rather, the procedural violation was that the EIR failed to discuss the environmental impacts of implementing the mitigation measure,!! and thereforefailed to analyze the reasonably foreseeable effects of the project as proposed. (Vineyard, supra, 40 Cal4th at p. 444.) The better interpretation of the above-quoted paragraph from Vineyard is that the Court determinedthat the failure to follow CEQA’sprocedural requirementto analyze the consequencesofthe respondent county’s curtailment measure was prejudicial under section 21005 becauseit precluded informed decisionmaking and informed public participation. (See Neighbors, supra, 57 Cal.4th at pp. 463-465 [plur. opn.], explaining that only informational omissionsthat deprive agency decision ' Guidelines section 15126.4, subdivision (a)(1)(D),creates a procedural obligation bystating that, “[i]f a mitigation measure would cause one or more significant effects in addition to those that would be caused bythe project as proposed, the effects of the mitigation measure shall be discussed but in less detail than the significant effects of the project as proposed.” 23 - makersor the public of substantial information relevant to approving the project are prejudicial undersection 2 1005].) The Court should therefore reject NCRA’s mischaracterizationofits opinion in Vineyard. d. NCRA misconstrues statements in Ebbetts Pass to claim that the Court held that the adequacy of an EIR’s scope of analysis is reviewed de novo; on the contrary, the Court held that whether an EIR includes a sufficientlevel of detail regarding a required topic is a factual question reviewed only for substantial evidence. In addition to misrepresenting the Court’s opinion in Vineyard, NCRA cherry-picks snippets of the Court’s statements in Ebbetts Pass to claim that the Court “held that the proper ‘scope of analysis’ of impacts from herbicides presented a legal question, but that the ‘predicate’ ‘factual finding’ of whethera certain analysis is in fact feasible is a substantial evidence question.” (NCRA Brief, p. 19, citing Ebbetts Pass Forest Watch v. Cal. Dept. ofForestry (2008) 43 Cal.4th 936, 954-956 (Ebbetts Pass).) Whenreadin context, however,it is clear that by the phrase “scope of analysis,” the Court did not mean the breadth or amountof information the agency must includein the timber harvesting plans (THPs). Rather, by “scopeofanalysis,” the Court simply meantthe general topics CEQA procedurally requires THPs (and EIRs) to address—in that case, the reasonably foreseeable future activities contemplated by the project. (Ebbetts Pass, supra, 43 Cal.4th at p. 954,citing Vineyard, supra, 40 Cal.4th at p. 428, Laurel Heights I, supra, 47 Cal.3d at pp. 396, 398-399.) -24 - As this Court’s decisions make quite clear, lead agencies, in preparing EIRs, have a procedural obligation to analyze the whole ofthe project, including reasonably foreseeable future phases; as noted, CEQA gives agencies nodiscretion to deviate from this procedural requirement. (See Vineyard, supra, 40 Cal.4th at p. 428; Laurel Heights I, supra, 47 Cal.3dat pp. 396, 398-399.)It is therefore not remarkable that the Court in Ebbetts Pass noted that whether a THP mustinclude such a discussion within the scopeofits analysis is a procedural question. Onthe other hand, the Court in Ebbetts Pass understoodthat the substantial evidence standard applies to agency decisions about how much information must be provided in orderto fulfill CEQA’s procedural requirements. (Ebbetts Pass, supra, 43 Cal.4th at p. 955 [“the correctness of factual findingspredicate to the [procedural] standard’s application ... is a predominantly factual matter we review only for substantial evidence”].) Thus, the Ebbetts Pass Court applied the substantial evidence standard to the plaintiffs argument that the challenged THPs“should haveincluded more detailed site-specific discussionsofpotential future herbicide use.” (ibid.) Applying this standard, the Court held that the respondent agency had not abusedits discretion by “failing to demand”that the applicant provide “a moredetailed, site-specific analysis of impacts [of herbicide use] and mitigation measures.” (Ibid.) -25- The Court should therefore reject NCRA’s claim thatthe Court, in Ebbetts Pass, held that decisions concerning the “scope of analysis” to include in an EIR are reviewed underthe “failure to proceed”standard. The Ebbett Pass Court plainly comprehendedthat challenges to the scopes of EIRs’ discussions of procedurally required topics are reviewed only for substantial evidence. 4, Contrary to the claims of AIR and NCRA,substantial evidence demonstrates the Friant Ranch EIR sufficiently discusses the magnitude of the Project’s air quality impacts. As even the Court ofAppeal implicitly agreed, this is not a case in which an EIR presents only bare conclusions, such as occurred in Laurel Heights I, supra, 47 Cal.3d at pp. 403-405, or in which the challenged EIR’s discussionis facially inconsistent and incoherent, as wasthe EIR at issue in Vineyard, supra, 40 Cal.4th at p. 439. (See Slip Op. [“Opn.”], pp. 47-48.) Rather, the Friant Ranch EIR includesfacts and analysis and sufficiently discloses the County’s analytic route betweenthe EIR’sair quality evidence andits air quality conclusions. Because the levelofdetail provided demonstrates that substantial evidence supports the County’s discussionofair quality effects, the Court should uphold the EIR’s discussion underthe substantial evidence standard. (See Opening Brief, § IV.B.2, pp. 39-44; Reply Brief, § III.B.2, pp. 24-27; SIMUAPCD Brief, SILB, pp. 11-15.) - 26 - Despite the extensive discussion included in the Friant Ranch EIR, amicus AIR claims thatit is unable to discern the magnitude ofthe Project’s air quality impacts on health. !2 (See AIR Brief, pp. 4-8.) AIR does not providecitations to the administrative record to support this contention.In fact, there is no indicationin its brief that AIRhas even read the Friant Ranch EIRsair quality analysis. Instead, AIR cites only to the Court of Appeal’s characterizations of the EIR. (See e.g., AIR Brief, p. 4, citing Opn. pp. 45—-46;id. at p. 5, citing Opn. pp. 49-50.)3 NCRA similarly ’? Like Appellants, AIR claims that the Court of Appeal did notactually hold that a health correlation analysis is required. Rather, AIR claims the Court ofAppeal was merely requiring discussion of the magnitudeofthe impact. (Amicus Curiae Brief of Assn.ofIrritated Residents et al. [hereafter, “AIR Brief”], pp. 5, 8.) AIR is mistaken. The Court of Appeal held, in no uncertain terms, that “the EIR was inadequate becauseit failed to include an analysis that correlated the project’s emissionofair pollutants to its impact on human health.” (Opn. p. 5; see also p. 48 [“[t]he Friant Ranch EIR wasshort on analysis. It did not correlate the additional tons per year of emissionsthat would be generated by the project(i.e., the adverse air quality impacts) to adverse health impacts that could be expected to result from those emissions”].) Although, as AIR notes, the appellate court acknowledged that the County has discretion to determine exactly how to carry out the court’s holding, the court stated that in doing so “there must be someanalysis ofthe correlation between the project’s emissions and human health impacts. [Citation.] In other words, we agree with plaintiffs thatit is not possible to translate the bare numbers provided into adverse health impacts resultingfrom this project.” (Id. at pp. 49-50,italics original.) The question ofwhether the EIR sufficiently discloses the magnitude ofhealth impacts—adifferent issue—was not exhausted administratively, and is not on review before this Court. (§ 21177, subd. (a).) > AIRalso claimsthatit is “greatly concerned about projects in the San Joaquin Valley that would worsen existing air quality conditions” and that AJRrelies “on the EIRs prepared for proposed projects to obtain (Continued) -27- states that the EIR “ignor[ed]” the “magnitude” ofthe impact, thereby making the analysis incoherent. (NCRA Brief, p. 22.) As with AIR, though, it does not appear that NCRA hasread the EIR’s air quality analysis. Furthermore, whether the EIR sufficiently discloses the magnitude ofthe air quality impacts was not exhausted administratively, so the Court should refuse to considerthe issue. (§ 21177, subd. (a).) In any event, AIR and NCRA are wrong. The EIR sufficiently discloses the magnitude ofthe Project’s air quality impact on health by quantifying the Project’s air emissions, explaining that those emissions exceededthe standardsset by the localair district to maintain public health, and generally describingthe health effects associated with the air pollutants. (AR 793-826; see also AR 1556-1622 [Draft EIR Appendix C, documenting the URBMIS 2007 model results].) For this reason, the EIR at issue Santiago, supra, 118 Cal.App.3dat p. 831, cited by NCRA (NCRA Brief, p. 22), is completely unlike the Friant Ranch EIR,in thatthelatter document contains much morethan just bare conclusions. Although AIR, LCJA,and the court below believe additional information wasrequired for the County Board of Supervisors to weigh the (Continued) information regarding the impacts new projects would have onair quality and public health.” (AIR Brief, p. 2.) If, however, AIR is as concerned about the Friant Ranch’s air quality impacts as it claims to be, AIR could haveraised its concerns in comments on the Draft EIR, and the County would have provided a response. AIR did not do so. - 28 - merits of the project againstits environmental impacts,it is not for them to independently decidethis issue. (AIR Brief, p. 6, citing Opn. p. 49, fn. 23; Amicus Curiae Brief of Leadership Counselfor Justice and Accountability in Support ofPlaintiff and Appellant, Sierra Club,etal. [hereafter, “LCJA Brief”), p. 6) Rather, the County, as lead agency, determines whetherit has sufficient information to weigh the benefits of the project againstits environmental consequences; and a reviewing court should uphold that determinationifit is supported by substantial evidence. Asthis Court has noted in a related context, the courts are not in the position to “determine whethera particular ‘factor,’ i.e., a specific item of evidence, was ‘relevant,’ i.e., important enoughthat the administrative agency should have consideredit.” (WSPA, supra, 9 Cal.4th at p. 577.) If the courts were to undertake such analysis, the “issue would often becomenot whether the administrative decision was a prejudicial abuse of discretion, but whether the decision was wiseorscientifically sound” in light of evidence not before the agency. (Jbid.; see also Laurel Heights I, supra, 47 Cal.3d at p. 415 [it is not for project opponents orthe reviewing courts to “design the EIR”}].) Lastly, AIR arguesthat the EIR is insufficient as an informational documentbecausethe EIR usesparts per million in its discussion of health consequencesandtons peryear in its discussion of the Project’s emissions. (AIR Brief, p. 4; see also Opn. pp. 45-46 [quoting EIR’s discussion of -29- health based on parts per million exposureand the discussion ofthe Project’s emissions based ontons per year].) This issue was not preserved for judicial review becauseit was not exhausted administratively. (§ 21177, subd. (a).) Nor wasit raised by Appellants in the proceedings below,so the Court should decline to considerit. (Ernstv. Searle (1933) 218 Cal. 233, 240-241[a party may notraise new issues on appeal not presentedin the trial court].) In any event, as explainedin the amicusbriefofthe San Joaquin Valley Unified Air Pollution Control District, regional air quality impacts are evaluated based on tonnage, whereaslocalized impacts are evaluated based on concentrations. (SJVUAPCD Brief, § IIA, pp. 4-10.) As that expert agencyalso explained, it would notbe possible to determinethe ultimate concentration ofthe location of ozone or particulate matter generated by the project. (Jbid.) As notedbytheair district, these complexities demonstrate the dangers of reviewing courts conducting independentreview ofthe scientific bases behind an EIR’s discussion. (Id. at § IIB, pp. 11-15.) B. The Court Should Reject CBD’s Attempts to Conflate the Question of Whether an Agency Has AbusedIts Discretion with the Question of Whether the Agency Failed to Proceed in the Manner Required by Law. It is no surprise that CBD “strongly disagrees”that the question of whether an EIR precludes informed decisionmaking and informedpublic -30- participation goes to the question of prejudice, rather than the question of whether the agency failed to proceed in the manner required by law in the first instance. (CBD Brief, p. 16.) Both of CBD’s arguments against this analytic framework fail, however. First, CBD arguesthat the courts have the ability “to assess whether an EIR is adequate as an informational document” and nothing about section 21005 changes this. (CBD Brief, p. 17.) As discussed above, Real Party agrees that the courts can assess the adequacy of an EIR as an informational document. Such an assessmentcan be performed undereither the failure to proceed standardorthe substantial evidence standard, depending onthe nature ofthe underlying claim. If the EIRis insufficient as an informational document,it is either because the EIR omits a discussion required by CEQAorbecause the agency’s decisions about such things as the amount andtype ofanalysis to include EIR are not supported by substantial evidence.If the court findseither of these types of omissions, the court should next consider, as a separate analytical step, whether the omission precluded informed decisionmaking and informedpublic participation (e.g., because a significant impact has gone undisclosed as a result of the agency’s abuseofdiscretion). If it did, then the court should hold that the agency prejudicially abusedits discretion under section 21005. Second, CBDarguesthat Sierra Club v. State Board ofForestry (1994)7 Cal.4th 1215 (Sierra Club) correctly held that all failures to -3]- comply with CEQA’s proceduresare presumptively prejudicial. (CBD Brief, p. 18.) Public Resources Code section 21005, subdivision (b), however, unambiguously states that the courts “shall continueto follow established principle that there is no presumptionthat error is prejudicial.” Thus,to the extent that this Court suggested, in Sierra Club,thatall procedural violations are presumptively prejudicial under CEQA,Real Party respectfully submits that the Court was mistaken, and should use this case as an opportunity to say otherwise. It is worth noting that the Court in Sierra Club did not hold thatall “procedural failures” are prejudicial. Rather, the Court applied the very two-part analysis advocated by Real Party in concluding that the respondent forestry board prejudicially abusedits discretion. (See Reply Brief, § III.A.1, pp. 10-16.) The Court first held that the board abusedits discretion by failing to collect any information regarding old-growth-dependent Species on site. The Court next held that such an abuseofdiscretion “made any meaningful assessmentofthe potentially significant environmental impacts of timberharvesting and the developmentof site-specific mitigation measures impossible. In these circumstances prejudice is assumed.” (Sierra Club, supra, 7 Cal.4th at pp. 1236-1237,italics added.) In other words, the Court assumedthe error was prejudicial not because the agency violated CEQA’s procedures, but because the agency’s procedural violation precluded informed decisionmaking and informed public -32- participation regarding a potentially significant impact of the proposed project. (Accord Neighbors, supra, 57 Cal.4th at p. 465 {plurality of the court applying the same two-part analysis].) C. The Court Should Reject LCJA’s Arguments that CEQA’s Procedural Requirements Mandate a Health Correlation Analysis. Throughoutits brief, amicus LCJA misquotes CEQA Guidelines section 15126.2, subdivision (a), as Stating “‘[t]he discussion [in an EIR] shall include relevant specifics of the area, the resources involved, physical changes[...and] health and safety problemscaused by the physical changes.”’ (LCJA Brief, pp.1, 5,italics added by Real Party.) As discussed in Real Party’s Reply Brief and in the amicusbrief of the California Building Industry etal. (collectively “CBIA”), however, CEQA Guidelines section 15126.2, subdivision (a), uses the advisory term “should,” not “shall.” (See Guidelines, § 15005, subd.(b) [distinguishing “should” from “shall”].) For the reasons presented in Real Party’s opening andreply briefs on the merits, the Friant Ranch EIR readily fulfills the advisory directive of Guidelines section 15126.2, subdivision (a), to discuss “relevant specifics” regarding the potential health consequencesofthe project’s significantair quality impacts. (Opening Brief, § IV.B.2, pp. 39-44; Reply Brief, § IIIB, pp. 22~27.) LCJAalso argues that were the Court to hold that CEQAdoesnot require a health correlation analysis, such a result would translate into a -33- disproportionate impact on low income communities. !4 (LCJA Brief, § IB, pp. 2-5, § L.C., p. 7.) While the social inequities described by LCJA are real and of concern for California, nothing in the administrative record suggests that air pollution from Friant Ranch would have disproportionate effects on any low incomeor minority communities; and the prospect of such an outcome wasnotan issueraised before the County administratively. As with AIR,there is no indication that LCJA has actually read the Friant Ranch EIR,andits briefmakes no attempt to address the actualfacts ofthis case. Instead, LCJA speaksin generalities that havelittle or nothing to do with the administrative record before the court. Continuing in this vein, LCJA notesthat there are screening tools that help the California EnvironmentalProtection Agency (CalEPA) identify California communities that are disproportionately burdened by pollution. But CalEPAis required to do so under Public Resources Code section 71110, and not under CEQA.Byits own terms,'> section 71110 '* LCJA’s briefis largely aimedat environmental justice concerns. While avoiding disproportionate environmental impacts to minority and low- income populations is unquestionably an important matter of public policy, CEQA does not require an analysis of environmental justice. In this respect, CEQA differs from the federal National Environmental Quality Act (NEPA)(42 U.S.C. § 4321et seq.), which, through United States Executive Order 12898, requires federal agencies to address environmental justice effects in their NEPA documents. '® Section 71110 providesas follows: The California Environmental Protection Agency, in designing its mission for programs,policies, and standards,shall doall of the following: (Continued) -34- applies only to CalEPA, andnotto local agencies such as the County. To the extent that LCJA is arguing that the County was required, as a matter of law, to use CalEnviroScreen in its EIR, the Court should rejectthis argument, which has no basis whatsoeverin the language of CEQA. Section 71110 creates no such duty and, in any event, the courts lack sufficient scientific expertise to determine which modeling methodologies lead agencies shoulduse in assessing environmental impacts. (Laurel Heights I, supra, 47 Cal.3d atp. 393.) (Continued) (a) Conductits programs, policies, and activities that substantially affect human health or the environmentin a mannerthat ensuresthefair treatment ofpeople ofall races, cultures, and incomelevels, including minority populations and low-incomepopulationsofthestate. (b) Promote enforcementofall health and environmentalstatutes within its jurisdiction in a mannerthat ensures the fair treatment ofpeople ofall races, cultures, and incomelevels, including minority populations and low- income populationsin the state. (c) Ensure greater public participation in the agency’s development, adoption, and implementation of environmental regulations and policies. (d) Improveresearch and data collection for programs within the agency relating to the health of, and environmentof, peopleofall races, cultures, and incomelevels, including minority populations and low-income populationsof thestate. (e) Coordinateits efforts and share information with the United States Environmental Protection Agency. (f) Identify differential patterns of consumption ofnatural resources among people of different socioeconomic classificationsfor programs within the agency. (g) Consult with and review any information received from the Working Group on Environmental Justice established to assist the California Environmental Protection Agency in developing an agencywidestrategy pursuant to Section 71113 that meets the requirementsofthis section. -35- D. The Court Should Reject AIR’s Argument that Public Resources Code Section 21083.1 Does Not Limit the Court’s Ability to Impose New Procedural Requirements under CEQA. Amici AIR arguesthat the Court ofAppealdid not impose a new substantive requirementin violation of Public Resources Code section 21083.1 because CEQA requires all significant impacts of the project to be analyzed in an EIR. (AIR Brief, p. 9.) Like the other arguments from AIR mentioned above,this one also lacks merit. The Friant Ranch EIR analyzesall significant impacts of the Project, including air quality impacts. (AR 793-826.) The question before the Court is whether,in analyzing the Project’s regional air quality impacts, the EIR wasrequired to include an additional analysis correlating the Project’s air emissions to specific health consequences. Nowherein the Actorin the Guidelines does CEQAstate that EIRs shall include health correlation analyses; yet the Court of Appeal held that the Countyviolated CEQA’s proceduresby failing to includeone. In doing so, the court imposed a new procedural requirement—to include in an EIR an analysis correlating a project’s regional air emissions to specific health consequences-——in violation of Public Resource Code section 21083.1. Asthis Court recently explained, the Legislature, in enacting section 21083.1, intended to “‘limit judicial expansion of CEQA requirements’ and occeto ““‘reduce the uncertainty andlitigation risks facing local governments and project applicants by providing a ‘safe harbor’ to localentities and - 36 - developers who comply with the explicit requirements of the law.”’” (Berkeley Hillside Preservationv. City ofBerkeley (2015) 60 Cal.4th 1086, 1107 (Berkeley Hillside), quoting Assem. Com.on Natural Resources, Analysis of Sen. Bill No. 722 (1993-1994 Reg.Sess.) for hearing on July 12, 1993, p. 2.) This caseillustrates the uncertainties and risks that occur when an appellate court fails to follow the Legislature’s explicit direction, in that Real Party and the County had no wayto predict that the Court ofAppeal would hold that CEQA requires EIRs to include health correlation analyses of the kind inventedby that court. Here, in preparing the Friant Ranch EIR, the County followedall of CEQA’s known procedural and evidentiary requirements, at considerable time and expense. The County responded, in goodfaith, to all the comments received on the Draft EIR,evento the comments received on the Final EIR. During that whole process, no one ever suggested that a health correlation analysis of regionalair emissions should be conducted, let alone that such an analysis is required under CEQA’sprocedures. Yet, if this Court upholds the opinion below, the County would have to recommencethe environmental review processto include in the EIR an analysis thatis probably infeasible and that would not yield meaningful information. (See Amicus Curiae Briefin Support of Friant Ranch L.P. on Behalf of California Association of Environmental -37- Professionals and American Planning Association California Chapter, § IV.B, pp. 10-15, SIVUAPCDBrief, § IIA. pp. 3-10.) Thatsort of outcomeis precisely what the Legislature intended to prevent in enacting section 21083.1. This Court should therefore reject AIR’s argumentthat Public Resources Codesection 21083.1 does not impose limits upon the judiciary’s ability to impose new analytic requirements for EJRs’ discussions ofsignificant impacts. E. Friant Ranch’s Operational Air Quality Mitigation Measure Complies with CEQA. 1. The EIR provides sufficient detail regarding the effectiveness of Mitigation Measure #3.3.2. Amici AIR arguesthat the EIR violates CEQA by not discussing the amount by which Mitigation Measure 3.3.2 (“MM #3.3.2”) would reduce emissions. (AIR Brief, § III.A, pp. 10-11.) As with its other claims, AIR offers no citations to the administrative record in support ofthis contention, andit does not appear that AIR has evenread the Friant Ranch EIR. That documentdiscloses the effectiveness ofMM #3.3.2 by explaining that the measure would “reduce project air quality impacts, but not below the [SJVUAPCD’s] thresholds of significance.” (AR 826.) Theair district’s thresholds are identified earlier in the chapter. (AR 807, 4942 {errata].) Thus,the EIR sufficiently discloses the effectiveness ofMM #3.3.2. Although MM #3.3.2 is prefaced with the statementthat the measuresit imposes “will substantially reduce air quality impacts,” - 38 - ultimately the EIR discloses that this reduction will not be so substantial as to mitigate the impact to below the thresholds of significanceset forth in the EIR. CEQA does not require perfection, and the Court shouldrefuse to hold, as the Court of Appeal did, that the County prejudicially abusedits discretion simply by using the word “substantial”in the introductory paragraph ofMM #3.3.2. (Guidelines, § 15151; Save Cuyama Valley v. County ofSanta Barbara (2013) 213 Cal.App.4th 1059, 1073-1074 [EIR’s mistaken conclusionin classifying the severity of an impact was not prejudicial error becausethereport set forth all the pertinent data and followedall the procedures]; Mount Shasta Bioregional Ecology Centerv. County ofSiskiyou (2012) 210 Cal.App.4th 184, 226 [discrepancy in EIR understating the project’s water demanddid not constitute prejudicial error becausethe mistake did not affect the conclusion that the impact wasless than significant].) The Court ofAppeal therefore erred in holding that MM #3.3.2 violates CEQA becauseit includes words stating that the measure would “substantially” reduce the Project’s air quality impact. (Opn. pp. 58— 59,)'6 /// '® The Court of Appeal should never even have addressed this issue because no oneraisedit during the administrative process. (§ 21177; Sierra Clubv. City ofOrange (2008) 163 Cal.App.4th 523, 535; see also AR 4620-4621 [the only commentsubmitted to the County regarding the adequacy ofMM # 3.3.2 does not object to the EIR’s use of the word “substantial”].) - 39. Furthermore, as discussed by amici CBIA,the Project, through compliance with Rule 9510 (Indirect Source Rule), must mitigateits operational emissions for NOx by 33 percentover a period of ten years and reduce its PMio emissions by 50 percent over the Project’s operational baseline. (CBIA Brief, pp. 24-25.) Through compliance with the Indirect Source Rule, emissions will be reduced to the levels required by Rule 9510. (ibid.; see also AR 4620-4621 [explaining MM #3.3.2 andthe needto comply with Rule 9510]; see also AR 795-797, 824-825, 4556-4457, 4790, 18812-18831.) For these reasons, and thoseset forth in Real Party’s briefs on the merits and in the amicusbrief of CBIA, AIR is mistaken in stating that the EIRlacks insufficient detail regarding the effectiveness ofMM #3.3.2. 2. Mitigation Measure #3.3.2 is fully enforceable. AIR next argues that MM #3.3.2 is unenforceable based on the same reasoning used by the Court of Appeal. AIR makes no attempt to rebut the arguments made by RealPartyin its briefs before this Court. Like the Court of Appeal, AIR ignores the fact that the County adopted a Mitigation Reporting Program (MMP) whenit approved the Project, and will enforce MM #3.3.2 through compliance with the MMP. (AR 166;see also AR 634- 635 [EIR explaining enforcementofthe MMP], 9899 [Friant Ranch Specific Plan, explaining administration and enforcementofthe mitigation measures]; see also § 21081.6, subd. (a)(1).) Also like the Court of Appeal, - 40 - AIRignoresthe fact that, because the Projectis a plan-level project, not every item listed in MM #3.3.2 will be feasible and appropriate for every project-level entitlementultimately proposed under the Specific Plan and Community Plan Update. For the reasons presented in Real Party’s opening and reply briefs, substantial evidence demonstrates that MM #3.3.2 is fully enforceable, and the Court should reject AIR’s arguments. (OpeningBrief, § IV.C.2, pp. 54-58, Reply Brief, § I1I.C.1, pp. 27-32; see also CBIA Brief, § IL.A.3., pp. 14-17 [explaining programmatic nature of EIR], 23.) 3. Mitigation Measure #3.3.2 is not impermissibly deferred. AIR concurs with the Court of Appeal that MM #3.3.2 is impermissibly deferred becauseit provides that the County and the Air District may substitute equally or moreeffective mitigation measures during the review of future entitlements under the Specific Plan and Community Plan by the County and the Air District. (AIR Brief, § IILC, pp. 12-13.) Once again, AIR does not address the arguments made by Real Party before this Court. Instead, like the Court of Appeal below, AIR ignores the fact that established legal principles under CEQAallow a lead agency to substitute equally or more effective mitigation measures for the ones adopted, provided thatthere are “legitimate reasons” for the changes. Where the changes would giverise to the grounds for preparing a subsequent or supplemental EIR, such documentation may be a necessary first step in that process. (Napa Citizensfor Honest Gov.v. Napa County -4] - Bad.ofSupervisors (2001) 91 Cal.App.4th 342, 357-360.) The merefact that MM #3.3.2 (like all mitigation measures) is potentially subject to change does not mean thatit is impermissibly deferred. (Opening Brief, § IV.C.1, pp. 48-54, Reply Brief, § III.C.2, pp. 32-36; see also CBIA Brief, §§ 11.2.A.3, pp. 14-17,IL.B, pp. 20-25.) For the reasons presented in Real Party’s briefs and in the amicusbrief of CBIA, therefore, the Court should reject AIR’s contention that MM #3.3.2 is impermissibly deferred. Amicus CBDargues that CEQA requiresall deferred mitigation measures to include specific performance standards. (CBD Brief, § IILB, pp. 22-23.) In support ofthis contention, CBD cites CEQA Guidelines section 15126.4, subdivision (a)(1)(B). That section states, however, that if the formulation of mitigation is deferred, the “measures may specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way.” (Guidelines, § 15126.4, subd. (a)(1)(B), italics added.) The word “may,” as opposedto “shall,” in Guidelines section 15126.4, subdivision (a)(1)(B), strongly suggests that the Resources Agency recognizesthat it may not be necessary or even possible to provide specific performance standards for - 42 - every mitigation measure.'’ Suchis the case here. (Reply Brief, pp. 34-36; see also CBIA Brief, pp. 15~17.) Lastly, CBD misunderstands someofRealParty’s arguments, suggesting that Real Party contends that CEQA’s requirements for mitigation measures simply do not apply when an impactis significant and unavoidable. (CBD Brief, pp. 23-24.) CBDis mistaken. Real Party in no waydisputes that CEQA requires an agency to adoptfeasible mitigation measures to minimize significant impacts regardlessofthe level of significance ultimately achieved. (Reply Brief, p. 33, citing § 21002, 21081, subd. (a), Guidelines, § 15370.) Real Party’s pointis only that performance standards are one type of evidencethat an agencycan useto demonstrate that deferred mitigation measures will actually reduce impacts to less-than-significant levels. (Opening Brief, pp. 48-49 [explaining the developmentof case law concerning deferred mitigation and how performance standards were developed as a meanstojustify less-than- significant conclusions, and citing Sacramento Old City Assn.v. City Council ofSacramento (1991) 229 Cal.App.3d 1011, 1020-1023, 2030, and Sundstrom v. County ofMendocino (1988) 202 Cal.App.3d 296, 306—308].) Where mitigation measures cannot be formulated at the time the EIRis '” See Guidelines, § 15005, subd.(c) (“‘[mlay’ identifies a permissive element whichisleft fully to the discretion of the public agencies involved”). - 43 - prepared, butit is also not possible to identify performance standardsthat will ensure the impacts are reducedto less-than-significant levels, an agency should concludethat the impact is significant and unavoidable becauseit lacks substantial evidence to support the conclusion that the impact would be mitigated to less-than-significant levels. (Fairview Neighbors v. County of Ventura (1 999) 70 Cal.App.4th 238, 244-245.) For these reasons, and those presented in Real Party’s briefs on the merits and CBIA’s brief, this Court should hold that the Court of Appeal erred in holding that the MM #3.3.2 is impermissibly deferred under CEQA. III. CONCLUSION The Court shouldreject the arguments ofNCRA, CBD, AIR, and LCJA in support of Appellants, and hold that the Court of Appealerred in concluding that the courts review de novothe sufficiency of EIRs’ discussions of required topics. Instead, the substantial evidence standard of review applies to such claims. The Court should also reverse the Court of Appeal’s holding that the Friant Ranch EIR’sair quality analysis violates CEQA.The analysis complies with all of CEQA’s procedural requirements and is supported by substantial evidence. Finally, the Court should reverse the appellate court’s holding that MM #3.3.2 violates CEQA,and should -~44- uphold that mitigation measure becauseit is enforceable, is not impermissibly deferred, and otherwise complies with CEQA. Respectfully submitted, Dated: June 10, 2015 REMY MOOSE MANLEY, LLP Real Party in Interest/Respondent FRIANT RANCH,L.P. - 45 - CERTIFICATE OF WORD COUNT Pursuantto Rule 8.520(c) of the California Rules of Court, I hereby certify that this ANSWER TO AMICI CURIAE BRIEFS OF ASSOCIATIONOF IRRITATED RESIDENTS ET AL., CENTER FOR BIOLOGICAL DIVERSITY, LEADERSHIP COUNSEL FOR JUSTICE AND ACCOUNTABILITY, AND NORTH COAST RIVERS ALLIANCE contains 11,252 words, according to the word counting function of the word processing program usedto preparethis brief. Executed on this 10th day of June 2015,at Sacramento, California. now J SG. MOOSE - 46 - Sierra Club et al. v. County ofFresnoetal. Supreme Court of California Case No. S219783 (Fifth District Court ofAppeal Case No. F066798; Fresno County Superior Court Case No. 11CECG00726) PROOF OF SERVICE I, Bonnie Thorne, am a citizen ofthe United States, employedin the City and County of Sacramento. My business address is 555 Capitol Mall, Suite 800, Sacramento, California 95814 and email addressis bthorne@rmmenvirolaw.com.I am overthe age of 18 years and not a party to the above-entitled action. 1 am familiar with Remy Moose Manley, LLP's practice whereby the mail is sealed, given the appropriate postage and placed in a designated mail collection area. Each day's mail is collected and deposited in a U.S. mailboxafter the close of each day's business. On June 10, 2015, I served the following: ANSWERTOAMICI CURIAE BRIEFS OF ASSOCIATION OF IRRITATED RESIDENTSET AL., CENTER FOR BIOLOGICAL DIVERSITY, LEADERSHIP COUNSEL FOR JUSTICE AND ACCOUNTABILITY, AND NORTH COAST RIVERS ALLIANCE I Onthe parties in this action by causinga true copy thereof to be placed in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing mail addressed aslisted below XX] Courtesy copyon the parties in this action by causing a true copy thereof to be electronically delivered via the internet to the following person(s) or representative at the email address(es) listed below SEE ATTACHED SERVICE LIST I declare underpenalty ofperjury that the foregoingis true and correct and that this Proof of Service was executedthis 10th day of June, 2015, at Sacramento, California. Bonnie Thome -|- Sierra Club et al. v. County ofFresnoetal. Supreme Courtof California Case No. S219783 (Fifth District Court ofAppeal Case No. F066798; Fresno County Superior Court Case No. 1 1CECG00726) SERVICE LIST Sara Hedgpeth-Harris LAW OFFICE OF SARA HEDGPETH-HARRIS 5445 E. Lane Avenue Fresno, CA 93727 Tel.: (559) 233-0907 Fax: (559) 272-6046 Email: sara.hedgpethharris@shh-law.com Daniel C. Cederborg Bruce B. Johnson,Jr. OFFICE OF THE FRESNO COUNTY COUNSEL 2220 Tulare Street, Suite 500 Fresno, CA 93721 Tel.: (559) 600-3479 Fax: (559) 600-3480 Email: bijohnson@co.fresno.ca.us Bryan N. Wagner WAGNER & WAGNER 7110 N. Fresno St, Suite 340 Fresno, CA 93720 Tel.: (559) 224-0871 Fax: (559) 224-0885 Email: bryan@wagnerandwagner.com Clerk of the Court Fifth District Court of Appeal 2424 Ventura Street Fresno, CA 93721 Tel.: (559) 445-5491 Attorney for Plaintiffs and Appellants Sierra Club etal. VIA U.S. MAIL courtesy copy by email Attorneys for Respondents County ofFresno VIA U.S. MAIL courtesy copy by email Attorney for Real Party in Interest/Respondent Friant Ranch, L.P. VIA U.S. MAIL courtesy copy by email VIA U.S. MAIL Clerk of the Court Superior Court of California County ofFresno 1130 O Street Fresno, CA 93721 Tel.: (559) 457-1900 Margaret M.Sohagi Philip A. Seymour THE SOHAGI LAW GROUP 11999 San Vicente Blvd., Suite 150 Los Angeles, CA 90049 Tel.: (310) 475-5700 Fax: (310) 475-5707 Email: tsohagi@sohagi.com Jan Chatten-Brown Douglas P. Carstens AmyC. Minteer CHATTEN-BROWN & CARSTENS LLP 2200 Pacific Coast Highway, Suite 318 Hermosa Beach, CA 90254 Tel.: (310) 798-2400 Fax: (310) 798-2402 Email: ACM@CBCEarthlaw.com Lisabeth D. Rothman Rajika L. Shah BROWNSTEIN HYATT FARBER SCHRECK, LLP 2049 Century Park East, Suite 3550 Los Angeles, CA 90067 Tel.: (310) 500-4600 Fax: (310) 500-4602 Email: lrothman@bhfs.com; rshah@bhfs.com VIA U.S. MAIL On behalf ofAmici Curiae League ofCalifornia Cities, CSAC,et al. VIA U.S. MAIL On behalf ofAmici Curiae Association ofIrritated Residents, et al. VIA U.S. MAIL Onbehalfof Amici Curiae California Building Industry Association and Building Industry Legal Defense Foundation VIA U.S. MAIL PhoebeS. Seaton Ashley E. Werner LEADERSHIP COUNSEL FOR JUSTICE AND ACCOUNTABILITY 764 P. Street, Suite 012 Fresno, CA 93721 Tel.: (559) 369-2790 Email: pseaton@crla.org Kurt R. Wiese Barbara Baird SOUTH COASTAIR QUALITY MANAGEMENTDISTRICT 21865 Copley Drive Diamond Bar, CA 91765 Tel.: (909) 396-2302 Fax: (909) 396-2961 Email: bbaird@aqmd.gov Michael W. Graf 227 BehrensStreet El Cerrito, CA 94530 Tel.: (510) 525-1208 Fax: (510) 525-1208 Email: mwegraf@aol.com Jason M. Ackerman Fernando Avila BEST BEST & KRIEGER LLP 3390 University Ave., 5th Floor Riverside, CA 92502 Tel.: (951) 686-1450 Fax: (951) 686-3083 Email: jason.ackerman@bbklaw.com; fernando.avila@bbklaw.com On behalf ofAmicus Curiae Leadership Counselfor Justice and Accountability VIA U.S. MAIL On behalf ofAmicus Curiae South Coast Air Quality ManagementDistrict VIA U.S. MAIL On behalf ofAmicus Curiae The Centerfor Biological Diversity VIA U.S. MAIL On behalf ofAmici Curiae AEP andAmerican Planning Association California . Chapter VIA U.S. MAIL Stephan C. Volker Daniel P. Garrett-Steinman LAW OFFICES OF STEPHAN VOLKER 436 14th Street, Suite 1300 Oakland, CA 94612 Tel.: (510) 496-0600 Fax: (540) 496-1366 Email: svolker@volkerlaw.com Annette A. Ballatore-Williamson District Counsel SAN JOAQUIN VALLEY AIR POLLUTION DISTRICT 1990 E. 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