Legal Alerts Jan 11, 2019

California Supreme Court Addresses Standard of Review for EIRs and Air Quality Impact Analyses

Decision in Sierra Club v. County of Fresno Case

California Supreme Court Addresses Standard of Review for EIRs and Air Quality Impact Analyses

In a highly anticipated decision, the California Supreme Court found in Sierra Club v. County of Fresno that the environmental impact report was inadequate because it failed to sufficiently connect the project’s air quality emissions to potential health consequences. The Court applied the de novo standard of review when reviewing portions of the air quality impact analysis in the EIR for the Friant Ranch project. Under that standard, the Court reviews the issue without substantial deference to the lead agency’s conclusions.
The Dec. 24 decision is notable for applying the de novo standard of review to determine the adequacy of the discussion of environmental impacts. Additionally, the opinion suggests that agencies should include a thorough discussion connecting air quality emissions to human health effects, or explain why such an analysis cannot be completed.
The case relates to the Friant Ranch project, approved by the County of Fresno in 2011. The Project consists of the Central Valley’s first master-planned “pedestrian friendly” community on a 942-acre former agricultural site, and includes plans for the construction of approximately 2,500 age-restricted single and multi-family residential units, 250,000 square feet of commercial space, and several hundred acres of open space dedications. The EIR was upheld by the trial court, but struck down by the Fifth District Court of Appeal on grounds that it failed to correlate the Project’s emission of air pollutants to impacts on human health and  that it imposed vague and unenforceable mitigation measures.
In examining the adequacy of the EIR’s discussion of air quality impacts, the Supreme Court first summarized the California Environmental Quality Act’s standards of review. The Court confirmed that procedural issues are to be reviewed de novo, whereas factual issues are reviewed under the substantial evidence test – a test that is highly deferential to a lead agency’s fact-based conclusions. The Court explained, however, that the issue of whether an EIR’s discussion of environmental impacts is adequate, such that it facilitates “informed agency decision-making and informed public participation,” does not always neatly fit within the procedural/factual paradigm. The ultimate inquiry, according to the Court, is whether the EIR includes enough detail “to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” In some circumstances, noncompliance with substantive requirements of CEQA or noncompliance with information disclosure provisions “which precludes relevant information from being presented to the public agency … may constitute prejudicial abuse of discretion” under the procedural prong of CEQA’s standard of review. 
Regarding the EIR’s air quality analysis, the EIR did contain a general discussion of the possible health effects related to air pollutants, as well as the type and tons per year of the pollutants the Project was expected to produce. The Court then found, however, that the EIR did not connect the raw particulate numbers and their effect on air quality with specific adverse effects on human health in the built environment. The Court stated that “the EIR must provide an adequate analysis to inform the public how its bare numbers translate to create potential adverse impacts or it must adequately explain what the agency does know and why, given existing scientific constraints, it cannot translate potential health impacts further.” As such, the Court concluded that the EIR’s omission of discussion of the magnitude of health impacts was a failure to meet CEQA’s information disclosure requirements, which constituted a procedural failure under the de novo standard of review.
As to the EIR’s mitigation measures, the Court found that a mitigation measure that allowed for substitutions of equal or more efficient technology to mitigate a project’s acknowledged significant effects promotes CEQA’s goal of environmental projection, and therefore was not improperly deferred mitigation. Mitigation measures that reduced air quality impacts, but not to fully less-than-significant levels, were also found to be permissible.
If you have any questions about this decision or how it may impact your agency, please contact the authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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