In a much-anticipated opinion, the California Supreme Court in Sierra Club v. County of Fresno (Dec. 24, 2018) __Cal.5th___ (Case No. S219783) held that portions of the air quality analysis in Fresno County’s EIR for the 942-acre Friant Ranch Specific Plan violated CEQA. In reaching this decision, the Court made four important holdings: (1) when reviewing whether an EIR’s discussion of environmental effects “is sufficient to satisfy CEQA,” the court must be satisfied that the EIR “includes sufficient detail to enable those who did not participate in its preparation to understand and consider meaningfully the issues the proposed project raises”; (2) an EIR must show a “reasonable effort to substantively connect a project’s air quality impacts to likely health consequences”; (3) “a lead agency may leave open the possibility of employing better mitigation efforts consistent with improvements in technology without being deemed to have impermissibly deferred mitigation measures”; and (4) “[a] lead agency may adopt mitigation measures that do not reduce the project’s adverse impacts to less than significant levels, so long as the agency can demonstrate in good faith that the measures will at least be partially effective at mitigating the Project’s impacts.”
The Friant Ranch project is a Specific Plan calling for approximately 2,500 age-restricted (ages 55+) residential units, and other uses, including a commercial center and a neighborhood electric vehicle network. Fresno County’s EIR for the project generally discussed the health effects of air pollutants such as Reactive Organic Gases (ROG), oxides of nitrogen (NOx), and particulate matter (PM), but without predicting any specific health-related impacts resulting from the project. The EIR found that the project’s long-term operational air quality effects were significant and unavoidable, even with implementation of all feasible mitigation measures. The EIR recommended a mitigation measure that included a “substitution clause,” allowing the County, over the course of project build-out, to allow the use of new control technologies equally or more effective than those listed in the adopted measure.
After the trial court denied Sierra Club’s petition for writ of mandate, the Court of Appeal reversed, holding that the EIR’s air quality analysis and air quality mitigation measures violated CEQA. On October 1, 2014, the Supreme Court granted review of the appellate court’s decision. In a unanimous decision issued December 24, 2018, the Supreme Court reversed in part, and affirmed in part, the Court of Appeal’s decision.
The Court first considered which standard of judicial review applies to claims that an EIR’s discussion of environmental impacts is inadequate or insufficient. The Court explained that an EIR’s discussion of environmental impacts is adequate and sufficient where “the discussion sufficiently performs the function of facilitating ‘informed agency decisionmaking and informed public participation.” To that end, an EIR must “reasonably describe the nature and magnitude of the adverse effect.” The evaluation does not need to be exhaustive, but the courts will review the discussion “in light of what is reasonably feasible.” Claims that an EIR lacks analysis or omits the magnitude of the impact involve mixed questions of law and fact, and thus are generally reviewed de novo. The courts will apply the substantial evidence standard, however, to claims challenging the EIR’s underlying factual determinations, such as which methodologies to employ. “Thus, to the extent a mixed question requires a determination whether statutory criteria were satisfied, de novo review is appropriate; but to the extent factual questions predominate, a more deferential standard is warranted.”
The Court next considered whether the Friant Ranch EIR’s air quality analysis complied with CEQA. The Court held that an EIR must reflect “a reasonable effort to discuss relevant specifics regarding the connection between” and the estimated amount of a given pollutant the project will produce and the health impacts associated with that pollutant. Further, the EIR must show a “reasonable effort to put into a meaningful context” the conclusion that the project will cause a significant air quality impact. Although CEQA does not mandate an in-depth health risk assessment, CEQA does require an EIR to adequately explain either (a) how “bare [emissions] numbers” translate to or create potential adverse health impacts; or (b) what the agency does know, and why, given existing scientific constraints, it cannot translate potential health impacts further.
With respect to the Friant Ranch EIR, the EIR quantified how many tons per year the project will generate of ROG and NOx (both of which are ozone precursors), but did not quantify how much ozone these emissions will create. Although the EIR explained that ozone can cause health impacts at exposures for 0.10 to 0.40 parts per million, this information was meaningless because the EIR did not estimate how much ozone the Project will generate. Nor did the EIR disclose at what levels of exposure PM, carbon monoxide, and sulfur dioxide would trigger adverse health impacts. In short, the EIR made “it impossible for the public to translate the bare numbers provided into adverse health impacts or to understand why such translation is not possible at this time (and what limited translation is, in fact, possible).”
The Court noted that, on remand, one possible topic to address would be the impact the Project would have on the number of days of nonattainment of air quality standards per year, but the Court stopped short of stating such a discussion is required. Instead, the County, as lead agency, has discretion in choosing the type of analysis to supply.
The Court further held that the EIR did not fulfill CEQA’s disclosure requirements in that it stated that the air quality mitigation would “substantially reduce” air quality impacts but failed to “accurately reflect the net health effect of proposed air quality mitigation measures.”
Next, the Court examined whether the air quality mitigation measure impermissibly deferred formulation of mitigation because it allowed the County to substitute equally or more effective measures in the future as the Project builds out. The Court held that this substitution clause did not constitute impermissible deferral of mitigation because it allows for “additional and presumably better mitigation measures when they become available,” consistent with CEQA’s goal of promoting environmental protection. The Court also explained that mitigation measures need not include quantitative performance standards. If the mitigation measures are at least partially effective, they comply with CEQA; this is true even if the measures will not reduce the project’s significant impacts to less-than-significant levels.
RMM attorneys Jim Moose, Tiffany Wright, and Laura Harris represented the Real Party in Interest in the case.
(Laura M. Harris)