In Sierra Club v. County of Fresno (2020) 57 Cal.App.5th 979, a partially published opinion, the Fifth District Court of Appeal upheld the trial court’s refusal to issue a narrow writ following the California Supreme Court’s ruling in Sierra Club v. County of Fresno (2018) 6 Cal.5th 502 (Friant Ranch). Rejecting the concept that an EIR can be partially decertified, the court determined that the trial court properly directed the County to decertify the entire EIR and vacate the project approvals. In the alternative, the court held that, even if the partial decertification of an EIR can sometimes be an available remedy, that remedy was not available in this case.
The underlying Friant Ranch case involved a CEQA action challenging a proposed master-planned community in Fresno County (“the project”). In 2018, the Supreme Court ruled that the EIR for the project violated CEQA because it failed to include an adequate discussion of public health impacts from air pollutants generated by the project, and ordered the Court of Appeal to “remand the matter for additional proceedings consistent” with its opinion. On remand, the trial court issued a writ of mandate ordering the County to “[v]acate or set aside” the project approvals, “and not approve the project before preparing a revised EIR.” Real Party in Interest, Friant Ranch L.P., and the County filed a motion to vacate and reconsider the judgment and writ, arguing that the trial court drafted an overbroad writ, and should have only partially decertified the EIR, leaving most of the project’s approvals in place. The trial court denied the motion and this appeal followed.
The Court of Appeal upheld the trial court’s judgment and writ on two alternative grounds. First, the court held that an EIR cannot be partially decertified under Public Resources Code section 21168.9, subdivision (a), and the County therefore was required to decertify the entire EIR and vacate the project approvals. That section gives courts the authority to direct an agency “to void, in whole or in part, a determination, finding or decision made in violation of CEQA” (emphasis added). But, the court reasoned, Public Resources Code sections 21100, subdivision (a) and 21151, subdivision (a), and Guidelines section 15090, subdivision (a)(2), require public agencies to certify “the completion of the EIR” in compliance with CEQA. Thus, the court found that an EIR cannot be partially certified; it is either complete or not.
The court cited its opinion in LandValue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675 (LandValue 77), where it previously held that partial certification of an EIR is not consistent with CEQA. The court conceded that other courts of appeal have since disagreed with the holding in LandValue 77. For example, in Center for Biological Diversity v. Department of Fish & Wildlife (2017) 17 Cal.App.5th 1245 (CBD III), the Second District Court of Appeal held that partial decertification is permissible under section 21168.9, subdivision (a). And, in Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, the Fourth District criticized LandValue 77’s rejection of partial certification in dicta. The Fifth District Court of Appeal concluded that those opinions did not explain how an agency can certify an EIR “in part” under sections 21100(a) or 21151(a), and therefore, the court found those cases unconvincing.
The court went on to find, in the alternative, that even if partial certification is allowed under CEQA, it was inappropriate in this case. In CBD III, the Second District Court of Appeal stated that partial certification is permissible “so long as a court makes a severance finding under [Public Resources Code] section 21168.9(b).” Here, the court determined that severance was not proper, for reasons explained only in the unpublished portion of the decision. Finally, the court determined that its decision in this case would not result in unfair new challenges to the EIR because most of the components of the EIR had already been litigated and resolved. Any arguments on those issues would therefore be barred by res judicata, collateral estoppel, and CEQA’s exhaustion of administrative remedies requirement.
As the court acknowledged in this case, the Courts of Appeal are divided over whether partial decertification of an EIR is permissible under CEQA. While the Fifth District believes it is an “oxymoron” to conclude an agency can partially “certify the completion of” an EIR, other districts disagree.