SIERRA CLUB v. COUNTY OF FRESNO (FRIANT RANCH)Real Party in Interest, Friant Ranch, L.P., Response to Amicus Curiae Brief of South Coast Air Quality Management DistrictCal.June 11, 2015caseno. sziomss SUPREME COURT COPY IN THE SUPREME COURT OF CALIFORNIA SIERRA CLUB, REVIVE THE SAN JOAQUIN,and LEAGUE OF WOMEN VOTERSOF FRESNO Plaintiffs and Appellants SUPREME COURT v. FILED COUNTY OF FRESNO JUN 11 2015 Defendant and Respondent Frank A. McGuire Clerk FRIANT RANCH,L.P. De Real Party in Interest and Respondent puty 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 ANSWERTOAMICUS CURIAE BRIEF FILEDBY THE SOUTH COAST AIR QUALITY MANAGEMENTDISTRICT *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 WOMENVOTERS OF FRESNO Plaintiffs and Appellants Vv. COUNTY OF FRESNO Defendant and Respondent FRIANT RANCH,L.P. Real Party in Interest and Respondent After a Published Decision by the Court ofAppeal, filed May27, 2014 Fifth Appellate District Case No. F066798 Appeal from the Superior Court of California, County of Fresno Case No. 11CECG00726 Honorable RosendoA.Pefia ANSWERTOAMICUS CURIAE BRIEF FILED BY THE SOUTH COAST AIR QUALITY MANAGEMENTDISTRICT *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 RealParty in Interest and Respondent FRIANT RANCH,L.P. TABLE OF CONTENTS I. INTRODUCTIONooo.cceecceessssessesssecsssssecsutssssssssensenssusssessesssessees 1 Il. ARGUMENT 0... ..cccescseseeesesscsessessssssssssessrssssssesessesansssessesssssecseves 3 A. Whether an EIR’s Discussion of a Required Topic Is Sufficient Is a Factual Question Reviewed for Substantial Evidence in Light of the Whole Record.............3 B. CEQADoes Not Require Agencies to Conduct All Reasonably Feasible Studies..........c.c.cccccccsssssesesesesssscseesessees 7 C. If a Responsible or Trustee Agency Recommendsthe Lead Agency Conduct a Particular Study, that Recommendation and the Lead Agency’s Response(or Lack Thereof) Will Be Part ofthe Evidence the Court Examines in Applying the Substantial Evidence Standard oo...ececcesesescsssssesssssscsrsesscsesecesessssacacstsrsessecescene 12 D. By Imposing a New Regional Health Correlation Requirement, the Court ofAppeal Impermissibly Imposed a New Substantive Requirement under CEQA....13 E. SCAQMD’s Brief Demonstrates the Technical Complexities Involved in Determining What Type of Air Quality Analysis Is Appropriate for Any Given Project, Effectively Supporting the Real Party’s Conclusion that the Courts Should Not Decide Such Matters De NOV0........cescsssscssesssesssscsssseverseeseececesestsesesscscess 15 THT. == CONCLUSION0...eeceeseccscsssscscsssessesscssssssesssussasatsvsscacacsessessevesesees 18 CERTIFICATE OF WORD COUNTo.oo. .cecscccsssccssssessesessesescsessssessessese, 19 TABLE OF AUTHORITIES California Cases Page(s) Berkeley Hillside Preservation v. City ofBerkley (2015) 60 Cal4th 1086 oo... esececsesssssecssscsssssessssesssesecsaessessssucsussecsssesessesenses 14 California Oak Foundation v. Regents of University ofCalifornia (2010) 188 Cal.App.4th 227......cccccccssccccsssescssssssessessesesesscssssesssscsssessnceceees 9 County ofAmadorv. El Dorado County Water Agency (1998) 76 Cal.App.4th 931.cccsccccscsssssssssessesssessessessssusssssesessussssesseesecess 6 Gray v. County ofMadera (2008) 167 CalApp.4th 1099... cccecccccsssssssssecsscessessesssssresesssesecsrcesesvens 6 Laurel Heights ImprovementAssn. v. Regents of University ofCalifornia (1988) 47 Cal.3d 376.0... ecessessesscscsssssssscscscscsescssessessesesseassessescesecsesene 1,4,5,9 Laurel Heights Improvement Assn. v. Regents of University ofCalifornia (1993) 6 Cal.4th 1112 oeccccssecssssssssssssssessesasssssasscsssssssessessesesssessenes 12 Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 oocccccsssessesssssssssssssserssessecsessesussesussessecsesssescsseeees 7 Save Our Peninsula Comm. v. Monterey County Bd. ofSupervisors (2001) 87 Cal.App.4th 99.0... cccccscssesscsssscsessssesecsscsrssssssessacsesssscsssssecess 5, 6 Save Round Valley Alliance v. County ofInyo (2007) 157 CalApp.4th 1437.00... ccccccscssssscsesessesssssesesssecsescscsesesssesesscsceverees 9 Sierra Club v. County ofOrange (2008) 163 Cal.App.4th 523.0... ccccccsesssssssssssssecssssecsesersesesessssessecsessseceesesees 9 Vineyard Area Citizensfor Responsible Growth v. City ofRancho Cordova (2007) 40 Cal.4th 412 oooeccscsscsssscsccscsesesesssesessestsessscssscesersees 4,5, 12 -ii- California Cases(cont.) Page(s) Yamaha Corp. ofAmerica v. State Bd. ofEqualization (1998) 19 Cal.4th Dooccccsessssssscsesssscssussssessecsssusseasssesesssssssssesesseseeseeeess 5 California Statutes Pub. Resources Code, § 21000 et Seq. ......secssescssessesssssssessssesessssteseesescececeseees 1 Pub. Resources Code, § 21003, subd. (b) o..ccccecscssssssssssssesscssssscsssoseesecceeeess 11 Pub. Resources Code, § 21003, subd. (f) ....c..cescessecessescscssssesssssasesesesceseececes 1] Pub. Resources Code, § 21005......c.c.cccssccsssssessessssssessescecscssessecsesstceseeesececceces 7 Pub. Resources Code, § 21061 .Lio.ccccccccsssssssssssssesseesecsasscessesereesecscecesececees 8 Pub. Resources Code, § 21083. .....ccccccccccccssssssssssececsecseceecececcceeees 3, 8, 14, 18 Pub. Resources Code, § 21092.5 ooo. cccccsssesssssssscscsssesecssecesesecesesesecesecesecece. 8 Pub. Resources Code, § 21104, subd. (8) .......csccscccsssssssssscssscsessssssesececeeceeeeees 8 Pub. Resources Code, § 21153 ...c.c.cccccccssessessssessssssssssessssscsssesssssececsescecessccs 8 Pub. Resources Code, § 21167.6, subd. (€)(7) ....ccccssssssssssssessessessscsscesesseeces 12 Pub. Resources Code, § 21168.....0....ccccccscssscsssssssssesssssessessscsssscsseeseceseee. 6, 12 Pub. Resources Code, § 21168.5.......ccccccssssssessssssssssssessscssessesssesececececees 6, 12 California Regulations [Cal. Code Regs., tit. 14, § 15000 et seq. ("CEQA Guidelines")] CEQA Guidelines, § 15000 et Seq. ..c.c.cceccssessescesesssssstsscscscssssesseseseseceecesees 2 CEQA Guidelines, § 15005, subd. (b) ...tecesccesecsesestsssscstssessecerssseseeeees 14 CEQA Guidelines, § 15006, subd. (1) oo... cceeesesesesscsesescecsesscssseceseececeeeees 10 CEQA Guidelines, § 15006, subds. (n)-(U) .....eeecescsccsssessscsesscsesesecesceseeeees 11 CEQA Guidelines, § 15006, subd. (0) oo... cieecsescssesesscssesscscsssessscesecesseseeces 10 CEQA Guidelines, § 15006, subd. (Pp) 0.cceeessesesessssescscscsesessscseeseseeseseees 10 CEQA Guidelines, § 15088, subd. (C) oo... eescsscsesessssescscscsesscsesereresceseeeees 12 CEQA Guidelines, § 15126.2, subd. (a) oo.cicccecescesecsssssessesescsssecseseccessseecees 13 CEQA Guidelines, § 1513].cccscsesssssssssesssesessescscacssscssssscscsserceseees 14 CEQA Guidelines, § 15141...cccecscsessssscsesssssscssscsssessssssssecsseeesees 10 CEQA Guidelines, § 15151 ..ccccccssssscsesssssescssesessesessscsssesesssessseserseseeeee 8 CEQA Guidelines, § 15204, subd. (a) oo... .cccccsesssssscscssscseseesscessesseees 2, 8, 9, 10 CEQA Guidelines, Appendix G.uw....ccccsssssesscsessessssssssescsesressessssseseseeseees 10 - iii - I. INTRODUCTION Real Party in Interest Friant Ranch, L.P. (Real Party) appreciates the input ofAmicus Curiae South Coast Air Quality ManagementDistrict (Air District, District, or SCAQMD)insofar as the District states thatits “staff does not currently know of a way to quantify ozone-related health impacts caused by NOx or VOCemissions from relatively small projects” and that the existing methodology to correlate particulate matter emissions to health impacts “is not suited for small projects and mayyield unreliable results due to various uncertainties.” (Amicus Curiae Brief of South Coast Air Quality ManagementDistrict [hereafter, “SCAQMD Brief"|, pp. 12, 14.) RealParty also appreciates the District’s statement that “t]he substantial evidence standard recognizesthat the courts ‘have neither the resources nor the technical expertise’ to weigh conflicting evidence on technicalissues.” (id. at p. 21, fn. 15, citing Laurel Heights ImprovementAssn.v. Regents of the Univ. ofCal. (1988) 47 Cal.3d 376, 393 (Laurel Heights I).) But, for reasons explained below, manyofthe other positions taken by the Air District are incorrect, as they are often wholly unsupported by any language in the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)! or the CEQA Guidelines (hereafter, All further statutory references are to the Public Resources Code unless otherwise indicated. “Guidelines”);” and they often invite the courts to wadeinto technical thickets to act as de facto finders offact in determining the outer limits of whatsorts of technical analyses may be “reasonably feasible”to include in an environmental impact report (EIR). The Air District wrongly assumes that the Court of Appeal was on strong legal groundin inventing the so-called “correlation requirement,” and then goes onto explain the challenges in meeting such a requirement. Because this purported “requirement” has no foundation in statutory law or regulation, the District’s descriptions ofthe technicaldifficulties associated with undertaking a “correlation” analysis are legally irrelevant. The Court should also reject the Air District’s opinion that “[t]he ultimate question of whether an EIR’s analysisis ‘sufficient’ to serve CEQA’sinformational purposes is predominantly a question of law that courts should review de novo.” (SCAQMDBrief, p. App-2.) Whether an EIR’s discussion of a required topic is sufficient is a question of fact to which the courts must apply the substantial evidence standard. Contrary to the implications ofmuch of whatis said by the District, “CEQAdoesnot require a lead agency to conduct every test or perform all research, study, and experimentation recommended or demanded by commenters.” (Guidelines, § 15204, subd.(a).) Furthermore, CEQA * The Guidelines are codified in California Code of Regulations, title 14, section 15000et seq. prohibits the courts from imposing, de novo, new analytic requirements not explicitly required by the Act or the Guidelines. (§ 21083.1.) Instead, a lead agency’s explicit or implicit decision not to conduct any particular analysis proposed by a commenteris just one item of evidence in the overall administrative record that a reviewing court should examine in determining whether an EIRis sufficient as an informational document under the substantial evidence standard ofreview.If substantial evidence,in light of the whole record, supports the lead agency’s conclusion that the EIR’s discussion ofa required topic is sufficient, then the court must uphold the discussion, even if additional reasonably feasible analysis might also be helpful. For these reasons, as more fully developed below, Real Party respectfully urges the Court to reject the District’s interpretations of CEQA on these importantpoints. Il. ARGUMENT A. Whether an EIR’s Discussion of a Required Topic Is Sufficient Is a Factual Question Reviewed for Substantial Evidence in Light of the Whole Record. The Air District argues that “an EIR’s sufficiency as an informational documentis ultimately a legal question that courts should determine using their independentjudgment.” (SCAQMDBrief, p. 19.) The District is mistaken for several reasons. /// First, the District misapprehends this Court’s discussion of the standard of review in Laurel Heights I. The District quotes the statementin that case that ““[t]he court does not pass uponthe correctness of the EIR’s environmental conclusions, but only uponits sufficiency as an informative document.’”” (SCAQMDBrief, p. 19, quoting Laurel Heights I, supra, 47 Cal.3d at pp. 392-393, italics added by SCAQMD.)Theitalicized language, the District believes, supports the notionthat judicial review in this context should not be deferential. Had the District quoted the very next sentence from Laurel Heights I, however, theerrorinits understanding would beclear: “This standard of review is consistent with the requirement that the agency’s approvalof an EIR ‘shall be supported by substantial evidencein the record.’” (Laurel Heights I, supra, 47 Cal.3d at pp. 392- 393, italics added.) The District also incorrectly interprets this Court’s holding in Vineyard Area Citizensfor Responsible Growthv. City ofRancho Cordova (2007) 40 Cal.4th 412 (Vineyard). The District states that this Court used its independent judgmentin that case to determine whatlevel of analysis CEQArequires for water supply impacts. (SCAQMDBrief, pp. 19, 24.) The District is mistaken,orat least fails to deal with a number of important nuances in the Court’s decision. As discussed in detail in Real Party’s AnswerBrief to the Association ofIrritated Residents (AIR)et al., the Vineyard Court assessed thesufficiency of the EIR at issue under both the _4- “failure to proceed”and substantial evidencestandards. (Real Party’s Opening Brief on the Merits [hereafter, “Opening Brief”), § IV.A.3.d, pp. 30-32; AnswerBrief to AIR et al., § A.3.c.) Importantly, the procedural failures identified by the Court can betracedto ascertainable procedural requirements that CEQA imposes onall EIRs. (Vineyard, supra, 40 Cal.4th at pp. 429, 440, 443-444, 447.) In contrast, the factual flaws found by the Court related to the lack of evidence underlying the EIR’s factual conclusions and the EIR’s failure to describe the project’s long-term water supply consistently and coherently.(/d. at pp. 439, 445, 447.) With respect to the Districts statementthat the Vineyard Court “did not defer to the lead agency’s opinion regarding the law’s requirements,” Real Party agrees. As discussedin its Reply Brief, Real Party does not dispute that reviewing courts need not defer to the administrative agencies’ interpretation ofstatutes. (Reply Brief, pp. 17-18, citing Yamaha Corp. of America v. State Bd. ofEqualization (1998) 19 Cal.4th 1, 6-7.) This does not mean, however, that CEQA authorizesthe courts, rather than lead agencies, to “design the EIR” by determining how bestto fulfill CEQA’s informational requirements. (Laurel Heights I, supra, 47 Cal.3d at p. 415.) In addition to citing Laurel Heights I and Vineyard in support ofits claim that de novo review should be applied to the question of whether an EIR’s discussion of a required topic is sufficient, the District also cites a handful of appellate court decisions. (SCAQMDBrief, pp. 19, citing Save _5- Our Peninsula Comm. v. Monterey County Bd. ofSupervisors (2001) 87 Cal.App.4th 99, 118; 23, citing County ofAmador v. El Dorado County Water Agency (1998) 76 Cal.App.4th 931, 954-955; 25, citing Gray v. County ofMadera (2008) 167 Cal.App.4th 1099, 1 123.) The invocation of these appellate decisionsis of no moment, however, as they are not binding on this Court. And Real Party has acknowledgedthat, at the appellate level, there is a split of authority on the question of whatstandard of review applies to questions concerningthe sufficiency of an EIR’s discussion of a required topic. Indeed,the existence ofthis conflict between the appellate districts was the primary ground Real Party invoked in originally seeking review in this Court. Furthermore, the appellate courts’ opinionsin the casesatissue, whenreadcarefully, actually do not support the Air District’s position. In each instance, the Courts of Appeal devoted substantial attention to whether the evidence in the administrative record supported the respondent agencies’ respective conclusionsthat their EIRs were sufficient. This approach suggests that the courts actually applied the substantial evidence standardin those cases, not the “failure to proceed”standard, despite the District’s assumptionto the contrary. Finally, like Appellants and amicus curiae Centerfor Biological Diversity, the District incorrectly conflates the standard for abuse of discretion under sections 21168 and 21168.5 with the standardfor prejudice -6- undersection 21005. A court should not even reach the question ofwhether prejudice has occurreduntil the court hasfirst determined that the agency abusedits discretion,either by failing to follow CEQA’sprocedural requirements or by failing to support its factual decisions with substantial evidence. If an abuse ofdiscretion found by a court precluded informed decisionmaking or informed public participation, the court should holdthat the abuseof discretion was prejudicial under section 21005. (Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 463 [“[a]n omission in an EIR’s significant impacts analysis is deemed prejudicial if it deprived the public and decision makers of substantial relevant information about the project’s likely adverse impacts”]; Reply Brief, § IIT.A.1, pp. 10-16; Answer Brief to AIR,et al., II.B; see also Amicus Curiae Brief of League ofCalifornia Cities et al., in Support of Real Partyin Interest [hereafter, “League Brief”], § HI.C, p. 29.) B. CEQADoesNot Require Agencies to Conduct All Reasonably Feasible Studies. The Air District argues that CEQA requires agencies to conductall reasonably feasible analyses in preparing their EIRs. (SCAQMDBrief,pp. App-1, 2, 9, 16, 18-22.) The District also arguesthat, if a lead agency determines that a particular analysisis infeasible, the agency must explain the basis for its infeasibility determination in the EIR. (dd. at p. 20.) The District is mistaken. While the sufficiency of an EIRis to be reviewed“in the light of whatis reasonably feasible,” this does not mean an EIR must includeall reasonably feasible studies. (Guidelines, § 15151, italics added.) Nor does CEQA require a lead agencyto track down every conceivable analytic methodology for evaluating each potential impactto be discussed in an EIR, assess whether such methodologies are feasible within the meaning ofthe statutory definition of that term (see section 21061. 1), and explain the infeasibility conclusions in the EIR.2 These requirements would be wasteful and unworkable in practice, would not be particularly useful to the public and decisionmakers, and do not find support in CEQA,the Guidelines, or this Court’s decisions. Thelaw is clear that CEQA doesnot require lead agencies to conductall reasonably feasible studies in preparing their EIRs or to explain in EIRs whyall methodologies not employed are infeasible. As this Court has recognized: “[a] project opponentor reviewing court can always imagine some additional study or analysis that might provide helpful information.It is not for them to design the EIR. Thatfurther study ... 3 Although lead agencies must consult with other agencies in preparing EIRs(§ 21104, subd. (a), 21153) and must respond to comments on draft EIRs (§ 21092.5, Guidelines, § 15204, subd.(a)), The Air District’s brief suggests that lead agencies must go above and beyondthese consultation requirements to identify, independently,all potentially feasible methodologies for analyzing particular impacts andeither conductthe studies or explain in the draft EIR why such methodologies are infeasible. (SCAQMDBrief,p. 20.) Because neither the Act nor the Guidelines imposes any such requirement, the court should reject the District’s contention. (§ 21083.1.) might be helpful does not makeit necessary.” (Laurel Heights I, supra, 47 Cal.3d at p. 415.) “The issue is not whether the studiesare irrefutable or whether they could have beenbetter. The relevant issueis only whether the studies are sufficiently credible to be considered as part ofthetotal evidence that supports” the agency’s decision. (Laurel Heights I, supra, 47 Cal.3d at p. 409.) Consistent with this Court’s above-quoted statements from Laurel Heights I, the Guidelines direct that “CEQA does not require a lead agency to conduct every test or perform all research, study, and experimentation recommended or demanded by commentors.” (Guidelines, § 15204, subd. (a); see also, e.g., Cal. Oak Foundation v. Regents of Univ. ofCal. (2010) 188 Cal.App.4th 227, 267-268 [holding that the absence of specific analysis and data recommendedbypetitioner did not render the EIR inadequate]; Sierra Club v. County ofOrange (2008) 163 Cal.App.4th 523, 544-545 [“[t]he mere fact plaintiff disagrees with the methodology employed by defendant to measuretheproject’s potential traffic impacts... does not require invalidation of the [EIR],if it provides accurate information”); Save Round Valley Alliance v. County ofInyo (2007) 157 Cal.App.4th 1437, 1468[rejecting argument that EIR must contain an additional quantitative analysis where substantial evidence supports the © methodology employed by the agency].) Instead “[w]hen responding to comments, lead agencies need only respondto significant environmental -9- issues and do not needto provide all information requested by reviewers, as long as a goodfaith effort at full disclosure is made in the EIR.” (Guidelines, § 15204, subd.(a).) Furthermore, as correctly observed by amici League of California City et al., the Guidelines “seem to favor informative but concise discussion over expansive analysis.” (League Brief, p. 22; see, generally, id. at § III, pp. 20-31.) Forinstance, EIRsare to be “analytic rather than encyclopedic” (Guidelines, § 15006, subd. (0)); EIRs are to mention “only briefly issues other than significant ones” (id., subd. (p)); and EIRs should typically be limited to 150 pagesin length, or 300 pagesfor projects “of unusual scope or complexity” (§§ 15141, 15006, subd. (n)). If agencies were required to conductevery reasonablyfeasible study (or to explain in their EIRs whyall studies not conducted are infeasible), EIRs would quickly becomeextraordinarily voluminous.’ Unless such EIRs were written by unusually gifted technical writers, moreover, the documents would likely be difficult for the public and decisionmakers to read and understand, thereby undermining the EIRs’ practical value as informational documents. * EIRstypically address impacts within at least /7 resource categories. (See Guidelines, Appendix G, which sets forth questions lead agencies “should normally address”in initial studies, and therefore EIRs.) a e -10- A requirementfor lead agencies to conductall reasonably feasible studies or explain, in their EIRs, why all studies not conducted are infeasible, would also frustrate the state policy that public agencies carrying out CEQA do so “in the mostefficient, expeditious manner,” so as to “conserve the available financial, governmental, physical, and social resources”for the application toward mitigation efforts. (§ 21003, subd. (f).) Even without a requirementto conductall reasonably feasible studies (or a requirement to explain in the EIR whysuchstudies are infeasible), EIRs are time consuming and expensive to prepare.If this Court were to discern forthe first time in CEQA a requirement that lead agencies must ferret out every available methodologyfor analyzing each ofthe various impacts discussed in their EIRs andthen either employ those methodologiesor disclose, in the EIRs, whythey are not reasonably feasible, the result wouldbethat the time and expense required to prepare EIRs would go up dramatically but without any concomitant increase in informational value. Instead, agencies should enjoy the discretion to settle on reasonable methodologies and then prepare their EIRs with focus on the significant effects of proposedprojects and potentially feasible means of reducing the severity of such effects. (§ 21003, subds. (b), (f); Guidelines, § 15006, subds. (n)—(u).) /// /T/ -ll- C. Ifa Responsible or Trustee Agency Recommendsthe Lead Agency Conducta Particular Study, that Recommendation and the Lead Agency’s Response (or Lack Thereof) Will Be Part of the Evidence the Court Examinesin Applying the Substantial Evidence Standard. Although, as discussed above, CEQA doesnot require agencies to conductall reasonably feasible studies, this is not to say that agency and expert comments recommendingthat lead agencies conduct further studies shouldor can be ignored. (See Guidelines, § 15088, subd. (c); Laurel Heights Improvement Assn. v. Regents ofthe Univ. ofCal. (1993) 6 Cal.4th 1112, 1124.) Instead, such comments becomepart of the administrative record and should be examined bythe reviewing court in assessing whether an EIRsufficiently discusses a required topic. (§§ 21168, 21 168.5, 21167.6, subd. (e)(7).) If the comments submitted by the public or agencies demonstrate that the agency lacked substantial evidence to support its conclusion that an EIR’s discussion ofa required topic is sufficient, the reviewing court shouldhold that the agency abusedits discretion under the substantial evidencetest. (See e.g., Vineyard, supra, 40 Cal.4th at pp. 447— 448 [evidence submitted by experts during public comments demonstrated that EIR lacked substantial evidence to support conclusion that impacts of proposed groundwater extraction would not be significant].) Because the substantial evidence standard requires the courts to review the administrative record as a whole, application of the substantial evidence -12- test ensures that courts assessing the sufficiency of EIR discussions do not ignore comments submitted by agencies such as the Air District.5 D. By Imposing a New Regional Health Correlation Requirement, the Court of Appeal Impermissibly Imposed a New Substantive Requirement under CEQA. The Air District argues that “{a] court determining whether an EIR’s discussion of health impacts is legally sufficient does not constitute imposing a new substantive requirement.” (SCAQMDBrief, p. 26.) Real Party respectfully disagrees with the premise underlying this contention. While a court’s determination that an EIR’s discussionofair quality impacts is insufficient underthe substantial evidence standard would not impose new substantive requirements, a court’s determination that an EIR’s discussion is procedurally insufficient for failing to includea certain type of analysis not explicitly required in the Act or Guidelines—the so-called “correlation” analysis—would impose a new substantive requirement. Asrelevant here, nothing in CEQAorthe Guidelines requires a regional health correlation analysis. In fact, the only section in either the Actor the Guidelines that addresses health impacts is advisory, not mandatory. (Guidelines, § 15126.2, subd. (a) [EIRs “should include ° In contrast, applying its independent judgmentto the sufficiency of the Friant Ranch EIR’sair quality analysis, the Court of Appeal below ignored the comments submitted by the San Joaquin Valley Unified Air Pollution Control District explaining that a health risk assessmentis not feasible at the specific plan-phase of the Project. (See Administrative Record [“AR”] 4553.) -13- relevant specifics of the area, the resourcesinvolved, physical changes,... [and] health and safety problems caused bythe physical changes”]; see also Guidelines, § 15005, subd. (b) [defining “should”as used in the Guidelines].) In short, in deciding that a health correlation analysis is somehow required by CEQA’s procedures, the Court ofAppeal imposed a new substantive requirementin violation of section 21083.1. The District further asserts that section 21083.1 “was intendedto prevent courts from, for example, holding that an agency must analyze economic impacts of a project wherethere are no resulting environmental impacts (see CEQA Guidelines § 15131), or imposing new procedural requirements, such as imposing additional public notice requirements not set forth in CEQA or the Guidelines.” (SCAQMD Brief, p. 26, fn. 19.) The District offers no support of any kind forits narrow reading of a broadly worded statute. This Court’s own interpretation is substantially broader. As this Court just recently explained, the Legislature enacted section 21083.1 to “‘limit judicial expansion of CEQA requirements’ and to “reduce the uncertainty andlitigation risk facing local governmentsandproject applicants by providing a ‘safe harbor’to local entities and developers who comply with the explicit requirements ofthe law.” [Citation.]” (Berkeley Hillside Preservation v. City ofBerkley (2015) 60 Cal.4th 1086, 1107.) This “safe harbor” would becomea virtual nullity if the courts were independently to decide the appropriate type, scope, and amount of analysis -14- that must be includedin an EIR, with no deferenceto the agency and without review of the administrative record. E. SCAQMD’sBrief Demonstrates the Technical Complexities Involved in Determining What Type of Air Quality Analysis Is Appropriate for Any Given Project, Effectively Supporting the Real Party’s Conclusion that the Courts Should Not Decide Such Matters De Novo. Section II of SCAQMD’sBrief (pp. 8-16) includes a highly technical discussion of the types of projects for which, in SCAQMD’s expert opinion, a health correlation analysis would be either feasible or infeasible. The discussion amply demonstrates the complexity of assessing the feasibility of a health correlation analysis under any given factpattern. These complexities illustrate that the courts do not havethe technical expertise to determine, de novo, what amountofair quality analysis is “sufficient” under CEQAin anyparticular case. Instead, the courts should apply the substantial evidence standard and defer to lead agencies’ factual conclusionsasto the sufficiency of their EIRs’ technical discussions. In this case, Fresno County’s conclusion that the Friant Ranch EIR’s discussion of air quality impacts is sufficient is supported by substantial evidence. Such substantial evidence includesthe fact that the County explained in its Final EIR whya localized health risk assessmentis not -15- feasible to conductatthis “specific plan” phase of the Project.® The Court of Appeal, below, incorrectly ignored this evidence. And by determining, de novo, that the EIR’s discussion is insufficient, the Court of Appeal imposed a requirement on the County to conduct a regionalhealth correlation analysis that both the S(}VUAPCDandthe Association of Environmental Professionals (AEP) and American Planning Association, California Chapter, believe wouldlikely be both infeasible and a source of misleading information. (Amicus Brief of San Joaquin Valley Unified Air Pollution Control District in Support of Defendant and Respondent, County of Fresno and RealParty in Interest and Respondent, Friant Ranch, L.P. [“STVUAPCDBrief’”], § II, pp. 3-15; Amicus Curiae Briefofthe ° The Air District notes on page 9 ofits amicusbriefthatair pollution control districts often require proposed new sourcesoftoxic air contaminants to prepare “health risk assessments” before the districts issue permits to construct such new pollutant sources. Such is the case with the San Joaquin Valley Unified Air Pollution Control District SJVUAPCD), whichhasjurisdiction over the Fresno County. (AR 4553.) Although the District does not appear to be awareofthis fact, SIVUAPCD’s comments on the Friant Ranch EIRstated that“[t]he required level ofdetail” for a health risk assessment cannot be known until site specific information, such as the “type of emission source, proximity of the sourceto sensitive receptors, and trip generation” is known. (Jbid.) Therefore, SIVUAPCD recommendedthat“health risks be further reviewed when approving future projects” under the Friant Ranch Specific Plan. (Jbid.) The County’s responses concurred with S}VUAPCDandnotedthat “when considering future discretionary approvals for specific development”underthe Specific Plan,“the County will assess potential health risks.” ([bid.) -16- Association of Environmental Plannersetal. [hereafter, “AEP Brief”], § IV.B, pp. 10-15.) Although SCAQMD doesnot opine on whethera regional health correlation analysis would be feasible for Friant Ranch, SCAQMDdoes suggest that such analyses are only appropriate for “regional scale” projects and/or very large projects emitting many moretonsperyear ofcriteria air pollutants than Friant Ranch. (SCAQMDBrief, pp. 11-15.) Even if such analyses could befeasible for regional or very large projects, there is no evidence in the administrative record in this case ofthe feasibility of an analysis correlating Friant Ranch’s emissionsofcriteria pollutants with specific health consequences. Moreover, even if a health correlation analysis were feasible for Friant Ranch, none of CEQA’s mandatory proceduresor substantive requirements require the County to have conductedone. Instead, whether the EIR is sufficient as an informational document in the absenceof a regionalhealth correlation analysis is a “factual” question that the court must review only for substantial evidence, in light of the whole record, and with deference to the lead agency. (See OpeningBrief, § IV.A, pp. 9-36, Reply Brief, § IIIA, pp. 9-21, AnswerBrief to AIR et al., § II.C-D; AEP Brief, § IV.A, pp. 5-10, League Brief, §§ I-IV, pp. 3-41, Amicus Curiae Brief of California Building Association et al., § I1.A, pp. 5-20.) -17- Il. CONCLUSION For the reasonspresented above, Real Party respectfully requests that this Court decline to acceptthe Air District’s interpretation of CEQA. Instead, the Court should hold that whether an EIR’s discussion of a required topic is sufficient is afactual question reviewed only for substantial evidence. Furthermore, CEQA doesnot require agenciesto conductall reasonably feasible studies. Andfinally, section 21083.1 prohibits the courts from independently imposing analytic requirements on agenciesthat are not explicitly required by the Act or the Guidelines. Respectfully submitted, Dated: June 10, 2015 REMY MOOSE MANLEY,LLP eal Party in Interest/Respondent FRIANT RANCH,L.P. S A R K I S - 18 - CERTIFICATE OF WORD COUNT Pursuantto Rule 8.520(c) of the California Rules of Court, I hereby certify that this ANSWER TO AMICUS CURIAE BRIEF FILED BY THE SOUTH COAST AIR QUALITY MANAGEMENTDISTRICTcontains 4,132 words, according to the word counting function of the word processing program used to prepare this brief. Executed on this 10th day of June 2015,at Sacramento, California. Dee JAMES G. MOOSE / -19- Sierra Club et al. v. County ofFresnoetal. SupremeCourt of California Case No. S219783 (Fifth District Court of Appeal Case No. F066798; Fresno County Superior Court Case No.1 1CECG00726) PROOF OF SERVICE I, Bonnie Thorne, am a citizen of the United States, employedin the City and County of Sacramento. My business address is 555 Capitol Mall, Suite 800, Sacramento, California 95814 and emailaddressis bthorne@rmmenvirolaw.com.I am overthe age of 18 years and nota party to the above-entitled action. I am familiar with Remy Moose Manley, LLP's practice whereby the mail is sealed, given the appropriate postage andplaced in a designated mail collection area. Each day's mailis collected and deposited in a U.S. mailbox after the close of each day's business. On June 10, 2015, I served the following: ANSWER TO AMICUS CURIAE BRIEF FILED BY THE SOUTH COAST AIR QUALITY MANAGEMENTDISTRICT Xx Ontheparties in this action by causing a true copy thereofto be _ placed in a sealed envelope with postage thereon fully prepaid in the designated area for outgoing mail addressed as listed below X Courtesy copy on 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 under penalty of perjury that the foregoing is true and correct and that this Proof of Service was executed this 10th day of June, 2015, at Sacramento, California. Bonnie Thorne Sierra Clubet al. v. County ofFresnoet al. Supreme Court of California Case No. 8219783 (Fifth District Court ofAppeal Case No. F066798; Fresno County Superior Court Case No. 11CECG00726) SERVICELIST 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: bjohnson@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 ofthe 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 of Amici Curiae League ofCalifornia Cities, CSAC,etal. VIA U.S. MAIL On behalf of Amici Curiae Association ofIrritated Residents, et al. VIA U.S. MAIL On behalf of 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 COAST AIR 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: mwgraf@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 of Amicus 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. MAIL On behalf ofAmicus Curiae San Joaquin Valley Unified Air Pollution Control District VIA U.S. MAIL
