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.
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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
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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
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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
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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
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“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)
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W
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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.]”’].)
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Se
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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. Gettysburg Ave.
Fresno, CA 93726
Tel.: (559) 230-6033
Fax: (559) 230-6061
Email:
annette.ballatore-williamson@valleyair.org
On behalf ofAmicus Curiae
North Coast Rivers Alliance
VIA U.S. MATL
On behalf ofAmicus Curiae
San Joaquin Valley Unified
Air Pollution Control
District
VIA U.S. MAIL