Archives: January 2016

Court Rejects EIR for Pest Program, Finding Objectives Too Narrowly Defined, and Thus No Reasonable Range of Alternatives

The Third District Court of Appeal reversed the decision of the trial court and held that a programmatic EIR for a seven-year program to control an invasive pest violated CEQA. (North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647. The draft EIR evaluated eradication of the light brown apple moth, but the California Department of Food and Agriculture adopted a program to control the moth due to intervening spread of the moth and ultimate infeasibility of eradication. The court held that even before new information on feasibility of eradication came to light, the EIR contained an impermissibly narrow project objective, resulting in omitted analysis of pest control as an alternative to eradication.

The light brown apple moth is native to Australia and was introduced to California in 2007. Its traits of eating plant leaves and buds, adapting to new plants, and multiplying rapidly posed a significant danger to California ecology and agriculture, including potential extinction of sensitive species. This threat prompted the CDFA to prepare an EIR for a moth eradication program.

The draft EIR included five “alternatives” to the program, which the court determined were not true alternatives, but were instead tools to achieve eradication. The tools focused on disrupting mating patterns and introducing pesticides and natural predators. The draft EIR did not evaluate control as an alternative to eradication, and stated that the two mechanisms were fundamentally different because eradication had an end date, but control could potentially continue forever. Although the certified final EIR was for the eradication program, the adopted findings evaluated a seven-year control program. The program’s objective was also changed from eradication to protecting food supply and California’s agricultural economy.

The court held that even without this last-minute change from eradication to control, the EIR violated CEQA because the EIR failed to analyze pest control as a reasonable alternative to the eradication program. The process of selecting alternatives, it stated, begins with the establishment of project objectives, and the project’s artificially narrow objective of eradication precluded evaluation of alternatives that might have lesser environmental effects. Rather, protection of plants and crops were “clearly” the objectives and underlying purpose of the eradication program. The revised objectives in the final EIR underscored this conclusion.

The EIR’s failure to analyze the alternative “infected the entire EIR insofar as it dismissed out of hand anything that would not achieve complete eradication” of the moth. Though the department claimed the approved control program was narrower (less intensive) than the eradication program, and therefore fit within that program, the failure to analyze the control program in the EIR left the department unable to support this assertion with substantial evidence. The court held the final EIR’s selection of an alternative not analyzed in the EIR was prejudicial error.

The court continued with petitioners’ other contentions despite having already found reversible error. The court held petitioners’ claims of insufficiency of the evidence did not constitute a separate grounds for reversal of the judgment, and petitioners failed to show reversible error regarding the “No-Program” alternative or the EIR’s impact analyses. The court did not address the cumulative impacts contentions, finding that the reversible error necessitated a new cumulative impacts discussion.