Archives: April 2012

Third District Finds Trial Court Committed Non-Prejudicial Error When It Excluded Documents from Record Under the Deliberative Process Privilege, Upholds Revised EIR Against Other CEQA Challenges

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Citizens for Open Government v. City of Lodi, (3rd Dist. March 28, 2012 [modified April 25th, 2012]) __Cal.App.4th__ (Case No. C065463, C065719)

Factual and Procedural Background

In 2002, Browman Company applied to the City of Lodi for a use permit to develop a 35-acre shopping center. In 2003, the city issued a NOP for a draft EIR for the proposed project. The city approved the project in 2004. Lodi First and Citizens for Open Government (COG) filed separate lawsuits (Lodi First I and Citizens I) challenging the project.

In December 2005, the trial court granted the petition for writ of mandate in Lodi First I.  The city council rescinded approval of the project and decertified the 2004 EIR. In 2006, the city issued a NOP for the revised EIR. In 2007, COG and the city stipulated to dismiss Citizens I.

In October 2007, the city circulated revisions to the EIR for public review and comment.  The city concluded some of the comments it had received on the revised draft EIR were beyond the scope of the revisions and barred by res judicata. The city declined to provide substantive responses to these comments. In May 2009, the city council conditionally approved the project entitlements and adopted findings of fact and a statement of overriding considerations for the project.

In order to proceed with the project, the city filed a petition to discharge the writ in Lodi First I. As part of this process, the city lodged a supplemental administrative record. Both COG and Lodi First filed separate lawsuits challenging the final revised EIR. After filing their lawsuits, both groups contended the supplemental administrative record excluded documents, including internal agency communications and communications with city consultants.

COG filed a motion to augment the supplemental administrative record. The court granted the motion in part and denied the motion in part based on the attorney-client, attorney-work-product and deliberative process privileges. In 2010, following a hearing on the merits, the trial court granted the City’s request to discharge the 2005 writ in Lodi First I and deny the petitions in Citizens II and Lodi First II. Both Lodi First and COG appealed.

The Appellate Court’s Decision

On appeal, Lodi First and COG argued the trial court erred in applying the deliberative process privilege to exclude some emails from the administrative record. Appellants also challenged the sufficiency of the revised EIR on numerous grounds and disputed the trial court’s ruling precluding them from challenging certain issues based on res judicata.

The Deliberative Process Privilege

Under the deliberative process privilege, senior officials in government enjoy a qualified, limited privilege not to disclose certain materials or communications. These include the mental processes by which a given decision was reached and other discussions, deliberations, etc., by which government policy is processed and formulated. The deliberative process showing must be made by the one claiming the privilege. Not every deliberative process communication is protected by the privilege.  Instead, the privilege is implicated only if the public interest in nondisclosure clearly outweighs the public interest in disclosure.

In the trial court, the city argued the deliberative process privilege applied because the city manager, city attorney, community development director, and other consultants engaged in various deliberative discussions and document exchanges concerning revisions to the EIR. The privilege was required, the city argued, “to foster candid dialogue and a testing and challenging of the approaches to be taken…” On appeal, Lodi First claimed this assertion was insufficient to support nondisclosure through the deliberative process privilege. The appellate court agreed, finding the city offered a correct statement of policy, but that invoking policy was not sufficient to explain the public’s specific interest in nondisclosure of the documents at issue. As a result, the city failed to carry its burden, and the trial court erred in excluding 22 e-mails from the administrative record based on the deliberative process privilege.

While the trial court erred in excluding these documents, this error was not necessarily prejudicial. Under the standard for prejudicial error established by the California Constitution, the appellant bears the burden to show it is reasonably probable he or she would have received a more favorable result at trial had the error not occurred.

Lodi First acknowledged it could not satisfy its burden to prove prejudice on appeal because it had not seen the documents that were erroneously withheld. Lodi First claimed the improper withholding of the documents itself was prejudicial because it was impossible for Lodi First to acquire them. The appellate court disagreed and noted Lodi First should have sought writ review of the trial court’s ruling on the motion to augment the administrative record. In addition, the appellate court, citing Madera Oversight Coalition Inc. v. County of Madera (2011) 199 Cal.App.4th 48, disagreed with Lodi First’s contention that the incomplete record itself was a prejudicial error requiring reversal regardless of the actual contents of the withheld documents.

The Range of Alternatives Considered

Lodi First argued the revised EIR did not comply with CEQA because the range of alternatives to the project did not both satisfy most of the project objectives and reduce significant effects of the project. Relying on both the CEQA Guidelines and long-standing precedent, the court rejected Lodi First’s argument.

First, the court of appeal cited CEQA Guidelines section 15126.6 for the assertion that “there is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason.” In addition the court noted that the California Supreme Court has explained how a “rule of reason” must be applied to the assessment of alternatives to proposed projects.

In this case, the revised project considered five alternatives: (1) no project; (2) alternative land uses; (3) reduced density; (4) reduced project size; and (5) alternative project location.  The alternative land use and reduced project density alternatives were not considered for further evaluation because they were infeasible or would not meet the goals of the project. The appellate court found the rejection of these alternatives for further review was reasonable.  The three remaining alternatives were discussed in detail in the revised EIR and provided substantial evidence of a reasonable range of alternatives.

Urban Decay Analysis

The trial court granted the petition for writ of mandate in Lodi First I, in part, because the analysis of cumulative urban decay impacts was inadequate for omitting two related projects in the geographic area. An updated economic impact/urban decay analysis was prepared in response to the trial court’s order to decertify the original EIR.

Lodi First argued the revised EIR inaccurately described the project’s environmental setting by failing to discuss existing blight and decay conditions in east Lodi. The appellate court, by de novo review, determined the blight at issue was not necessarily related to the retail environment at all. Further, the revised EIR analyzed the potential for urban decay with consideration of conditions in east Lodi. The revised EIR’s discussion of cumulative urban decay impacts was adequate under CEQA.

The Economic Baseline

COG argued the city erred in the revised EIR by failing to assess urban decay impacts “under radically changed economic conditions.” COG asserted the city should have reassessed urban decay impacts in light of the economic recession that occurred after the 2006/2007 economic analysis performed for the project. The appellate court determined the city’s decision not to update the baseline was supported by substantial evidence. First, the city offered evidence that updating the baseline presented a “moving target” problem, where updates to the analysis would not be able to keep pace with changing events.  In addition, the city presented evidence that the changing economic conditions did not affect the urban decay findings based on the 2006/2007 economic analysis. Therefore, the city did not abuse its discretion when it declined to update the baseline.

Agricultural Impacts

COG argued the original EIR and revised EIR failed to disclose cumulative impacts to agriculture and that there was no substantial evidence to support the rejection of a heightened mitigation ratio.

The appellate court first determined that the revised EIR satisfied the standards established by the CEQA Guidelines for discussing cumulative impacts. The EIR explained the amount of prime farmland lost due to the project, the amount of land lost due to the project and other proposed projects, and that the cumulative impacts to agricultural resources would be significant and unavoidable. The discussion met the standard for “adequacy, completeness, and a good faith effort at full disclosure.”

After finding the revised EIR’s discussion of cumulative impacts to agricultural resources adequate, the appellate court determined the city did not have to accept a heightened mitigation ratio as asserted by COG. The city required a 1:1 conservation easement ratio for the loss of farmland, but also determined that agricultural easements do not completely mitigate for the loss of farmland. The city adopted a statement of overriding considerations and asserted the 1:1 ratio is appropriate for the project. COG argued the rejection of a 2:1 mitigation ratio was not supported by substantial evidence. The appellate court disagreed and noted that the appropriate standard was whether the finding that there were no feasible mitigation measures to reduce the impacts to prime farmland was supported by substantial evidence.

The Doctrine of Res Judicata

Lodi First attempted to argue the revised EIR failed to disclose cumulative water supply impacts. The trial court held that res judicata barred Lodi Frist from raising this claim. The appellate court agreed.

Res Judicata (claim preclusion) bars relitigation of a cause of action that was previously adjudicated in another proceeding between the same parties or parties in privity with them and that adjudication resulted in a final decision on the merits. In this case, a writ was issued in Lodi First I and was final on the merits.  The trial court granted Lodi First’s petition and held the 2005 EIR was inadequate under CEQA. The city chose not to appeal, and the ruling was final because the time to appeal passed.

Lodi first attempted to argue res judicata did not preclude its water supply challenge because it was based on new information and the city’s 2009 findings regarding the project’s water supply impacts differed from its 2005 findings. For the purposes of res judicata, causes of action are considered the same if based on the same primary right. A claim is based on the same primary right if based on the same conditions and facts in existence when the original action was filed.

The appellate court determined the problem of overdraft cited by Lodi First was not new evidence. The city’s own 1990 general plan identified overdraft in the aquifer. While Lodi First claimed new evidence established more information than the 1990 EIR, the critical fact was that the city’s water supply was inadequate to serve new development.  This was known at the time of the 2004 EIR. In addition, the court determined the findings were consistent in that both findings were that the project would have no significant impact on water supply and therefore, no mitigation was necessary

Finally, the appellate court disagreed with Lodi First that res judicata should not be applied to the water supply issue due to public policy. When the issue is a question of law rather than of fact, res judicata may not apply if injustice would result or if the public interest requires that relitigation be allowed. Lodi First’s water supply issue did not present a question of law, so the public interest exception did not apply.

Conclusion

This case demonstrates the limitations of the deliberative process privilege for public agencies. Agencies attempting to rely on this privilege must be prepared to support their assertion of the privilege with a specific showing that the nondisclosure outweighs the public interest in disclosure; broad policy statements are not enough to support application of the privilege.  In addition, the case offers an important reminder of the consequences of failing to raise all potential arguments in original CEQA proceedings, and indeed, most regular civil proceedings.

RMM partners Andrea Leisy and Howard Wilkins and associate Laura Harris represented real party in in interest Browman Development in this litigation.

First District Upholds Tolling Agreement Extending CEQA’s Statute of Limitations

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Salmon Protection and Watershed Network v. County of Marin (1st Dist. April 20, 2012) __Cal.App.4th__ (Case No. CIV1004866)

On April 20, 2012, the First Appellate District affirmed a lower court’s holding that a public agency and a private party may agree to toll the limitations period for challenging the adequacy of an EIR under CEQA.

The project at issue in this litigation was the adoption of the Marin Countywide General Plan Update. Salmon Protection and Watershed Network (SPAWN) filed a petition for writ of mandate challenging certification of an EIR for the plan. In an attempt to reach a settlement, SPAWN and Marin County entered a series of “tolling” agreements.  These agreements extended the 30-day limitation period under Public Resources Code section 21167 for the filing of challenges to EIRs. Settlement discussions were ultimately unsuccessful, and SPAWN proceeded to file a petition to challenge the County’s EIR.

A group of property owners was granted leave to allege that SPAWN’s petition was untimely because CEQA does not permit tolling of the statute of limitations. The trial court sustained demurrers by the County and SPAWN, holding tolling agreements are not prohibited by either CEQA or Government Code section 65009. Instead, the court declared “CEQA encourages parties to avoid litigation through pretrial settlements and negotiated dispositions, which may include the use of tolling agreements.” The interveners appealed.

The Court of Appeal noted the challenge invoked potentially conflicting public policies.  While CEQA favors the prompts disposition of CEQA challenges, there is an equally strong public policy, recognized by the California Supreme Court, encouraging settlement.  The court noted CEQA itself contains provisions encouraging settlement. (See Public Resources Code sections 21167.8, 21167.9, 21167.10) Based on these observations, the court determined tolling agreements promote the public interest by permitting settlement discussions to proceed without the distraction of litigation.

Interestingly, both the County and SPAWN joined in opposition of the interveners’ attack on the tolling agreement. In addition, numerous amicus offered arguments, cited by the court, in support of tolling agreements as commonplace under CEQA.  The court also offered examples of numerous other cases recognizing both the validity and desirability agreements tolling other limitation periods. In addition, the court determined that the limitation period in section 21167 is primarily intended to protect project proponents from extended delay, uncertainty and other disruptions.  Therefore, Civil Code section 3513, which bars contravention by private agreement of laws established for a public purpose, does not prevent tolling agreements under CEQA. Ultimately, the court found both public policy and the law allow for agreements tolling the statute of limitations for filing petition under CEQA.

RMM partner Jim Moose and associates Jennifer Holman and Jeannie Lee represented Marin County in the litigation.

Second District Upholds Agency Use of Projected Future Condition for Environmental Baseline

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Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2nd Dist. April 17, 2012) __Cal.App.4th__ (Case No. B232655)

On April 17, 2012, the Second Appellate District affirmed a lower court’s denial of a petition for writ of mandate challenging the approval of a light rail project and certification of a final EIR under CEQA. The Second Appellate District disagreed with recent cases from other appellate circuits regarding the use of a projected future baseline and found that the use of a future baseline for analyzing certain impacts is appropriate when supported by substantial evidence.

The project at issue, known as the Exposition Corridor Project Phase 2, is intended to extend high-capacity, high-frequency transit service from downtown Los Angeles to Santa Monica. Exposition Metro Line Construction Authority (Expo Authority) prepared an EIR in which it determined that the current population and traffic levels did not provide a reasonable baseline for determining the significance of traffic and air quality impacts of the project. Instead, Expo Authority used projected conditions in 2030 for the baseline.

Petitioners sued, arguing, among other things, that the Expo Authority’s use of a future baseline was improper.  The trial court denied the petition, and Petitioners appealed.

On appeal, Appellants argued Expo Authority’s use of projected future conditions could not provide the baseline for reviewing the significance of environmental impacts under CEQA, as a matter of law. Citing Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310 (CBE), the court noted “Neither CEQA nor the CEQA Guidelines mandates a uniform, inflexible rule for determination of the existing conditions baseline.” Instead, agencies have discretion to decide exactly how to realistically measure existing physical conditions without the proposed project. The court noted CBE rejected use of present-day hypothetical conditions where those conditions were not a realistic description of the existing conditions. Expo Authority’s use of projected future conditions was distinguishable.

The Court of Appeal determined there was nothing “illusory” about population growth and its inevitable impacts on traffic and air quality.  Therefore, measuring the environmental effects of a long-term project by looking at those effects in the long-term was appropriate for this EIR. In fact, the Court of Appeal stated “In a major infrastructure project…assessment of the significance of environmental effects based on [current] conditions…yields no practical information, and does nothing to promote CEQA’s purpose of informed decisionmaking on a project designed to serve a future population.” Therefore, the court found Expo Authority was not prevented, as a matter of law, from using projected baseline conditions for a long-term project when its approach was supported by substantial evidence.

In reaching this holding, the Court of Appeal expressly disagreed with the holdings of both Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 cal.app.4th 1351, and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48.

This holding is significant because it creates a stark split in authority between the Appellate Districts. Project applicants should be aware of this split in authority before attempting to rely on projected future conditions for an environmental baseline. There will undoubtedly be a push to take the issue to the California Supreme Court for resolution of the split in authority.

Fish and Wildlife Service Issues New Land-Based Wind Energy Guidelines

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On March 23, 2012, the Department of the Interior released guidelines designed to help wind energy project developers avoid and minimize impacts of land-based wind projects on wildlife and habitat.  These voluntary guidelines were developed to encourage “smart siting, design, and operation” of wind energy projects based on a scientific process for addressing wildlife conservation concerns at all stages of development.  The guidelines are also intended to promote effective communication among wind energy developers and local, state, and federal agencies. When used with appropriate regulatory tools, the guidelines are intended to facilitate a practical approach for conserving species of concern. The new land-based wind energy guidelines were developed through a joint effort by the Department of Interior’s Fish and Wildlife Service and the Wind Turbine Guidelines Advisory Committee. The final guidelines were released after a five year-year process that included approximately 30,000 submitted comments.

The final guidelines rely on a “tiered approach” to assessing potential adverse effects to species of concern and their habitats.  Each tier involves collecting information in increasing detail and quantifying the potential significant adverse impacts on wildlife of proposed wind energy projects.  These risks are evaluated and used to guide siting, construction, and operation decisions.  The Fish and Wildlife Service indicates that many distributed or community facilities will need to proceed only through the initial tiers; not every project will be required to progress through all stages.  This approach is intended to allow efficient use of both developer and wildlife agency resources. The five tiers for identifying and minimizing impacts to species of special concern and their habitat are as follows:

  • Tier 1: Developers complete a preliminary site evaluation. This can help developers identify broad geographic areas of high sensitivity. This stage is intended to offer early guidance about sensitivity of potential sites within a larger landscape context.
  • Tier 2: Developers complete a site-specific characterization. This stage should include communication with relevant agencies and site-specific data gathering, such as site visits by a wildlife biologist.
  • Tier 3: Fields studies are conducted to document site wildlife and habitat and predict potential impacts attributable to the project.  These studies provide pre-construction information that can be used to design appropriate mitigation measures or monitoring studies, among other tools for minimizing potential significant adverse impacts.
  • Tier 4: Developers implement post-construction studies to estimate actual project impacts.  Fatality studies play an important role for data collection at the tier 4 stage.
  • Tier 5: In the event observed fatalities exceed predictions in earlier tiers, if estimated project impacts could lead to local population declines, or mitigation measures were ineffective, tier 5 studies may be required.  The Service expects that tier 5 studies will be complex and time-consuming.  Therefore, the Service anticipates this tiered approach should direct projects away from sites where tier 5 studies would be necessary.

The guidelines will also play an important role in helping developers identify any permits that might be needed to ensure compliance with federal wildlife laws such as the Migratory Bird Treaty Act, the Bald and Golden Eagle Protection Act and the Endangered Species Act.  Voluntary compliance with these guidelines does not provide immunity to any liability for violation of these laws; however, if a violation occurs, the Fish and Wildlife Service will consider a developer’s documented efforts to communicate with the Service and adhere to these guidelines.

A final version of the guidelines are available here: http://www.fws.gov/windenergy/docs/WEG_final.pdf

Fifth District Finds Irrigation District has Standing Under CEQA to Challenge Environmental Review Document

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Consolidated Irrigation District v. City of Selma (5th Dist. Feb. 28, 2012 [modified March 9th, 2012]) __ Cal.App.4th__ (Case No. 08CECG01591)

On February 8, 2012, the Fifth Appellate District ruled that a lower court properly found an irrigation district had standing to sue under CEQA and challenge a residential development approved by the City of Selma. The court also found the administrative record provided substantial evidence supporting a fair argument that the proposed project would result in potentially adverse significant impacts, and therefore, a mitigated negative declaration was inappropriate and a full environmental impact report was required.

Factual and Procedural Background

Raven Development, Inc., proposed developing a 160-unit, single-family residential subdivision that would be annexed by the city. Water for the proposed subdivision would be provided by a private water company. The initial environmental study concluded that the project’s groundwater use would not be significant and would not interfere substantially with the recharge of the aquifer; therefore, no mitigation would be required for the project’s impacts on hydrology and water quality.

Petitioner Consolidated Irrigation District (CID) is an independent special district formed under the California Water Code. The district is located in southern Fresno County, and its boundaries enclose approximately 163,000 acres of land, the majority of which is irrigated agricultural land.  The District delivers over 200,000 acre-feet of surface water for irrigation per year. The District also operates a groundwater recharge system that includes over fifty recharge basins.

An integrated regional water management plan was completed for the Upper Kings groundwater basin. The water management plan included findings that the Kings groundwater basin was in a state of overdraft that would continue to worsen through year 2030 based on projected conditions. The findings noted that between 2005 and 2030, the groundwater levels in the District’s urban areas will decline between an estimated five and ten feet.

The city prepared a mitigated negative declaration for Raven Development’s proposed subdivision. During the public review period, the District submitted letters stating the conversion of agricultural land to urban land was having an adverse and cumulatively significant impact on the groundwater basin, and the project potentially could have cumulative hydrology impacts as well. The District asserted that a full EIR was required. Despite these concerns, the city council adopted resolutions approving the project and adopting the MND.

CID filed a petition alleging that substantial evidence supported a fair argument that the project could result in significant impacts to the environment. CID requested that the city prepare the administrative record.

The city lodged a certified administrative record. Subsequently, CID filed a statement of issues.  This included an allegation that mandatory portions of the administrative record had not been included. CID filed a motion to augment the record, claiming it did not contain four documents that CID had submitted to the city. The trial court ordered that the administrative record be augmented and ultimately found the city violated CEQA when it approved the project. The court determined that the city needed to prepare a full EIR to address the significant cumulative impacts attributable to the project, among other potential impacts. The city appealed.

The Appellate Court’s Decision

On appeal, the city argued the trial court erred when it allowed the challenged documents to be added to the administrative record.  The city asserted the documents were not presented to a city decision-making body, and therefore, were not considered during the project approval process. The city further argued that the trial court erred in determining the district had standing. Finally, the court addressed the fair argument standard as applied to MNDs and issues of credibility of evidence submitted before an agency.

Order Augmenting the Administrative Record

The parties disagreed on the appropriate standard of review to be applied to the trial court’s decision to grant the motion to augment the administrative record. The city asserted de novo review of the trial court’s decision was the appropriate standard. The city argued this review should be limited to an examination of the administrative record. CID disagreed and claimed the only issue was whether the documents had been submitted to a decision-making body prior to the final approval of the project. Therefore, the trial court’s decision to augment the record with the contested documents should be upheld under the substantial evidence standard of review.

The court of appeal noted that the parties briefed the appeal before the court published its decision in Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, which addressed numerous questions related to the scope of the administrative record. Relying on Madera Oversight, the court determined Public Resources Code section 21167.6, subdivision (e), governing the contents of administrative records, is mandatory, and the requirements thereof are not committed to the discretion of a trial court. Instead, the findings of fact made by the trial court in determining whether documents are part of the record are appropriately reviewed under the substantial evidence standard.

The trial court based its decision to augment the administrative record on conflicting evidence presented by the city and district. Testimony from a district representative indicated that the documents in question had been presented to the city planning commission at a public hearing. The planning commission had failed to maintain two files in its record that it later agreed should have been included. Further, while transcripts were not available for the hearing, minutes indicated that the district submitted three documents. Testimony from the district’s representative indicated that two documents had actually been submitted to the city as a single document. The appellate court determined these facts presented substantial evidence supporting the trial court’s order to grant the motion to augment the record.

Standing of a Public Agency

The city also argued the trial court erred when it determined CID had standing to bring an action under CEQA. The city asserted the water district could not claim public interest standing to bring a citizen suit under CEQA. The city reasoned that a public agency could not qualify for public interest standing because it is a governmental body. The court declined to address this argument after finding the district adequately met the usual “beneficially interested” standing requirement under Code of Civil Procedure section 1086.

The court determined the district was “beneficially interested” after citing Water Code section 22650, which states, “A district may commence and maintain any actions and proceedings to carry out its purposes or protect its interests…”  The court determined “interests” in this section included all beneficial interests sufficient to satisfying standing requirements of Code of Civil Procedure section 1086. As a result, CID had authority under the Water Code to pursue CEQA litigation to protect its beneficial interests.

The court declined to adopt the city’s argument that a public agency only has a special interest or right, and therefore a beneficial interest, if the project affects a natural resource over which the agency has jurisdiction. The city attempted to support its argument by citing to CEQA Guidelines which limit the matters a public agency may comment on during environmental review. The court noted, however, that public agencies are authorized to submit comments to the lead agency on projects with impacts falling outside their legal jurisdiction if an affected resource is within an area of expertise of the agency. Therefore, the court concluded a public agency’s beneficial interests are not limited only to resources over which it has direct jurisdiction.

In this case, the district argued its operations, including that of numerous groundwater recharge basins, would be adversely affected by the project. The court found the operation of these recharge basins gave CID a special interest in the local groundwater. As a result, the district had a beneficial interest that could be adversely affected by the project. Therefore, the district satisfied the standing requirements necessary to file suit to enforce CEQA.

Application of the Fair Argument Standard

An agency’s decision to certify a negative or mitigated negative declaration is reviewed by courts under the fair argument test. If this test is met, then the declaration is overturned and the agency must prepare and certify an environmental impact report. A fair argument that a particular project may have a significant adverse effect on the environment must be supported by substantial evidence in the administrative record. The city argued the lead agency has discretion to determine whether evidence presented is actually substantial. The court disagreed and noted that whether an administrative record contains sufficient evidence to support a fair argument is a question of law.  Instead, the court found deference to the agency appropriate only for limited issues of credibility.

To support rejecting evidence for lack of credibility, an agency must identify that evidence with sufficient particularity to allow a reviewing court to determine if there were actually disputed issues of credibility. The court determined this was an appropriate requirement to prevent post hoc rationalization by the agency. In this case, the city could provide no citations to the administrative record showing any decision-maker questioned the credibility of any evidence presented. Therefore, court declined to defer to the city when reviewing the record to determine if it supported a fair argument that the project would cause significant adverse impacts.

Conclusion

This case further illustrates the difficulty lead agencies can face in defending MNDs. It also indicates that it is important for agencies to identify and discuss the reasons they believe presented evidence may not be credible. If an agency fails to do this, a court is likely to dismiss subsequently presented credibility challenges as simply post hoc rationalization.

In addition, an agency’s beneficial interest in CEQA proceedings extends not only to just the natural resources over which the agency has direct jurisdiction, but also those which have some relation or connection to the jurisdictional resource areas.