In a unanimous 33-page opinion authored by Justice Ming Chin and issued on December 24, 2018, the California Supreme Court addressed the standard of review for claims challenging the legal sufficiency of an EIR’s discussion of environmental impacts, and also CEQA’s rules regarding deferral and adequacy of mitigation measures. Sierra Club v. County of Fresno (Friant Ranch, L.P.) (2018) 6 Cal.5th 502, Case No. S219783. In affirming in part and reversing in part the Court of Appeal’s judgment, the Supreme Court held that the EIR for the Friant Ranch Project – a 942-acre master-planned, mixed-use development with over 2,500 senior residential units, 250,000 square feet of commercial space, and extensive open space/ recreational amenities on former agricultural land in north central Fresno County – was deficient in its informational discussion of air quality impacts as they connect to adverse human health effects. In doing so, the decision provides guidance in an area – the legal adequacy of an EIR’s discussion on a topic required by CEQA – that it held does not fit neatly within CEQA’s usual standard of review dichotomy, which provides for de novo review and exacting judicial scrutiny of alleged procedural errors (e.g., an EIR’s complete omission of a required topic area) and deferential substantial evidence review of an EIR’s or agency’s factual determinations and conclusions.
County’s Project Approval And The Subsequent Litigation
Fresno County approved the Friant Ranch project (as EIR Alternative 3), in the form of a Specific Plan and Community Plan Update, after certifying the Final EIR, adopting a statement of overriding considerations as to effects remaining significant after mitigation, and adopting a Mitigation Monitoring Program (MMP) that provided in part for enforcement of mitigation measures through subsequent conditions on future discretionary approvals (e.g., use permits and tentative maps). The trial court rejected plaintiffs’ CEQA challenges, applying the deferential substantial evidence standard to hold that the EIR was sufficient as an informational document and that the agency’s decisions and findings were supported by substantial evidence.
Reversing in part, the Court of Appeal held that the EIR’s air quality analysis was inadequate because it failed to correlate the project’s air pollutant emissions to human health impacts; that its mitigation measures were impermissibly vague, unenforceable, and lacked specific performance criteria; and that its conclusion that air quality mitigation would substantially reduce air quality impacts was unexplained and unsupported.
The Supreme Court’s Grant Of Review And Main Holdings
In granting review of the Court of Appeal’s holdings supporting its reversal, the Supreme Court sought to clarify the “standard of review a court must apply when adjudicating a challenge to the adequacy of an EIR’s discussion of adverse environmental impacts and mitigation measures, and whether CEQA requires an EIR to connect a project’s air quality impacts to specific health consequences.” Its scope of review also encompassed the issues “whether a lead agency impermissibly defers mitigation measures when it retains the discretion to substitute later adopted measures in place of those proposed in the EIR, and whether a lead agency may adopt mitigation measures that do not reduce a project’s significant and unavoidable impacts to a less-than significant level.”
The Supreme Court concluded as to the air quality issues that an EIR’s discussion must: (1) “include[ ] sufficient detail to enable those who did not participate in its preparation to understand and to consider meaningfully the issues the proposed project raises” (citing Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 405 (“Laurel Heights I”)); and (2) “make[ ] a reasonable effort to substantively connect a project’s air quality impacts to likely health consequences.” It held that the EIR at issue here did neither, and “should be revised to relate the expected adverse air quality impacts to likely health consequences or explain in meaningful detail why it is not feasible at the time of drafting to provide such an analysis, so that the public may make informed decisions regarding the costs and benefits of the project.”
As to the mitigation-related issues, the Court unsurprisingly held that a lead agency’s “leav[ing] open the possibility of employing better mitigation efforts consistent with [future technology] improvements,” does not constitute an impermissible deferral of mitigation measures, and that an “agency may adopt mitigation measures that do not reduce the project’s adverse effects 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 Supreme Court’s Reasoning On The Key “Informational Adequacy” Issue
Key to resolving the issue regarding the EIR’s sufficiency as an “informational document” was the Court’s preliminary decision as to the standard of review applicable to “a challenge to the adequacy of an EIR’s discussion of a required topic.” Observing that CEQA is interpreted to provide the “fullest possible protection to the environment within the reasonable scope of [its] statutory language” and that an EIR is a document of “accountability” allowing the public to “know the basis on which … [public] officials either approve or reject environmentally significant action,” the Court stated that an EIR “protects not only the environment but also informed self-government.” (Quoting Laurel Heights I, at 392.)
The Court’s decisions applying CEQA’s “prejudicial abuse of discretion” standard have “articulated a procedural issues/factual issues dichotomy” whereby abuse of discretion is found if an agency either (1) fails to proceed in the manner CEQA provides or (2) reaches factual conclusions unsupported by substantial evidence. The former type of error triggers de novo review and scrupulous enforcement of statutory requirements, whereas the latter type of error results in greater judicial deference to an agency’s substantive factual conclusions.
While the distinction between de novo and substantial evidence review has worked well in judicial review of most cases, the Court observed that the issue of compliance with required procedures is not always clear, especially when the issue is whether an EIR’s environmental impact “discussion sufficiently performs the function of facilitating “informed agency decision making and informed public participation.”” (Citations omitted.) Per the Court: “The review of such claims does not fit neatly within the procedural/factual paradigm.”
Pointing to its Laurel Heights I decision as an exemplar analyzing the sufficiency of an EIR’s discussion of a required topic, the Court noted it there rejected as inadequate a cursory, one and one-half page discussion of project alternatives that essentially stated the “no project” alternative would not have the project’s impacts, and that no alternative sites were evaluated. The Court characterized Laurel Heights I as reasoning that even if the “no feasible alternatives” conclusion was correct, the EIR failed as an informational document because it did not disclose its analytic route and failed to “confirm analysis sufficient to allow informed decision making.” The Court emphasized this was not a “substantial evidence” analysis.
The Court also cited its recent decision in Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 514-515 for the “similar point that the adequacy of an EIR’s discussion of environmental impacts is an issue distinct from the extent to which the agency is correct in its determination whether the impacts are significant.” It observed: “[A]n EIR’s designation of a particular adverse environmental effect as ‘significant’ does not excuse the EIR’s failing to reasonably describe the nature and magnitude of the adverse effect” and that “[a]n adequate description of adverse environmental impacts is necessary to inform the critical discussion of mitigation measures and alternatives at the core of the EIR.” (Citations omitted.)
Thus, unlike (for example) the lead agency’s selection or rejection of a particular methodology, which is amenable to substantial evidence review, the issue whether an EIR’s “description of an environmental impact is insufficient because it lacks analysis or omits the magnitude of the impact is not a substantial evidence question. A conclusory discussion of an environmental impact that an EIR deems significant can be determined by a court to be inadequate as an informational document without reference to substantial evidence.”’
Thus, the Court held “adequacy of discussion” and “failure to disclose relevant information” claims “are not typically amenable to substantial evidence review.” And while an agency has “considerable discretion” to decide the manner of discussion in an EIR of potentially significant impacts, a reviewing court’s task in determining the sufficiency of the discussion is not solely whether substantial evidence supports its factual conclusions, but whether the EIR fulfills its function of including sufficient detail “to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” (Quoting Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1197.)
Per the Court, this relevant “inquiry presents a mixed question of law and fact” and is thus “generally subject to independent review”; however, the Court acknowledged that when factual questions predominate in a “mixed question” “a more deferential standard is warranted.” (Citing Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175.)
Applications Of CEQA’s Standards To The Friant Ranch EIR
Applying these standards to the Friant Ranch Project EIR’s air quality discussion, the Court found it lacking. The Project’s estimated PM10, ROG and NOx (an ozone precursor) emissions were 7 to 10 times greater than the air district’s threshold of significance, and could not be reduced below the thresholds with mitigation and were thus deemed significant and unavoidable. While the EIR contained two pages of background information on ozone and PM10, including two paragraphs on their health effects, the discussion was general in nature and did not “connect” adverse human health effects to the levels of pollutants that would be emitted by the completed project. Per the Court: “The EIR’s discussion of health impacts of the named pollutants provides only a general description of symptoms that are associated with exposure to the ozone, particulate matter (PM), carbon monoxide (CO), and nitrogen dioxide [sic] (NOx), and the discussion of health impacts regarding each type of pollutant is at most a few sentences of general information. The disclosures of the health effects related to PM, CO, and sulfur dioxide fail to indicate the concentrations at which such pollutants would trigger the identified symptoms.”
The gist of the Court’s main holding appears to be that the EIR failed to convey any meaningful idea of the health consequences of the project’s addition of significant levels of pollutants to an already non-attainment air basin, and that more effort is required “to explain the nature and magnitude of the [significant] impact.” As an example of the EIR’s deficiency, the Court noted that even though it went into some detail about one pollutant’s (ozone’s)-health effects, including that exposure to ambient levels between 0.10 to 0.40 parts per million has been found to significantly alter lung functions in certain ways and result in certain symptoms, it failed to provide the anticipated parts per million that would result from the project. Thus, the Court held the disclosure of health impacts at specific ozone levels was not meaningful within the context of the Project without information about the ozone levels produced by the Project. (Citing also CEQA Guidelines § 15126.2(a) [suggesting EIR connect information on significant effects to resulting “health and safety problems”].)
Does The Court’s Holding Require The Impossible?
The Court conceded County and Real Party might be correct in asserting that the connection between emissions and human health, which plaintiffs sought in the EIR, is unattainable given the current state of environmental science modeling. The Court’s rather unsympathetic rejoinder was that “[even] if it is not scientifically possible to do more than has already been done to connect air quality effects with potential human health impacts, the EIR itself must explain why, in a manner reasonably calculated to inform the public of the scope of what is and is not yet known about the Project’s impacts. Contained in a brief, such explanation is directed that the wrong audience.”
While also conceding “CEQA does not mandate … such an in-depth risk assessment” as a statutory Health Risk Assessment, the Court stated it does require an EIR to make “a reasonable effort to discuss relevant specifics regarding the connection between two segments of information already contained in the EIR, the general health effects associated with a particular pollutant and the estimated amount of that pollutant the project will likely produce. This discussion will allow the public to make an informed decision, as CEQA requires. Because the EIR as written makes 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), we agree with the Court of Appeal that the EIR’s discussion of air quality impacts in this case was inadequate.”
The Court’s Mitigation Measure Holdings
Paling in significance were the Court’ mostly unsurprising and more pedestrian holdings regarding deferral, permissible content, and enforceability of mitigation measures for the project. The Court found that an EIR’s unexplicated assertion, lacking in factual support, that mitigation measures will “substantially” reduce a project’s air quality impacts – albeit not to a level of insignificance – is a “bare conclusion” that fails to satisfy CEQA’s disclosure requirements. Instead, an “EIR must accurately reflect the net health effect” of such proposed measures.
However, measures that partially reduce air quality impacts accompanied by a “substitution clause for future [equally or more effective] mitigation methods [as they become feasible]” do not constitute prohibited “deferred mitigation.” An EIR must discuss currently feasible measures, and measures must be at least partially effective (even if they cannot reduce an impact to less-than-significant), but the “measures need not include precise quantitative performance standards[.]” Thus, “the County retains the discretion to modify or substitute the adopted mitigation with equally or more effective measures in the future as better technology becomes available, unless the changes increase a project’s significant impacts” (Guidelines, § 15162(a)(3)), and such a “substitution clause … should be encouraged” as “promot[ing] CEQA’s goal of environmental protection.”
Further, “the inclusion of mitigation measures that partially reduce significant impacts does not violate CEQA[,]” which does “not seek to prevent all development” and does not preclude approval of a project with unmitigated significant impacts where mitigation is infeasible and an agency makes findings of overriding project benefits. (While these points would appear to be too obvious to require mention, the Court did state these observations.)
Finally, the Court rejected plaintiffs’ arguments that certain mitigation measures in the form of County “guidelines” for review of future project-specific submittals for non-residential development, concerning HVAC installation and tree planting, were unenforceable. The guidelines were not vague or unenforceable in defining “feasible” HVAC catalyst systems as those costing less than 10% of base HVAC cost, nor were they impermissibly vague in referring to a system “similar to” the brand-name PremAir catalyst system. Further, the measure governing shade tree selection – requiring “varieties that will shade 25% of the paved area within 20 years” – was not vague for failing to specify the persons responsible for tree selection. The MMP and specific plan also sufficiently provided the methods by which County would enforce mitigation measures during various subsequent stages of project planning and implementation.
Conclusion and Implications
The most significant aspect of this decision – and the reason it was highly anticipated – is obviously the Supreme Court’s holding that CEQA’s standard of review for claims challenging the informational sufficiency of an EIR’s discussion of significant impacts is essentially a “hybrid” that does not readily fit within the usual “procedural/factual” dichotomy. Rather, per the Court’s holding, it focuses on the adequacy of the discussion “connecting the dots” between the “raw data” on a particular significant effect of the project – here, air quality impacts – and the ultimately resulting human health effects that make that project effect significant. The Court holds the discussion must include sufficient detail to allow those who did not participate in the EIR’s preparation to understand and meaningfully consider the issues raised by the project. This vague “standard” may not, in my view, provide sufficient guidance to trial judges (especially those not familiar with CEQA) adjudicating challenges to EIRs.
There are some disturbing omissions of legal principles and analysis in the Court’s opinion lending credence to my concern. Not mentioned in the Supreme Court’s opinion are a number of seemingly quite relevant legal rules, including: the lead agency’s discretion to design its own EIR; the strong presumptions and inferences indulged in favor of an EIR’s adequacy and in support of its determinations and conclusions; the prophylactic function of the substantial evidence standard of review in supporting the lead agency’s discretion and the presumptions in favor of the EIR, particularly in the face of far-too-easily alleged claims of the “omission” of “relevant” information; the distinctions between direct (e.g., emissions data) and reasonably foreseeable indirect (health effects) project impacts; and the statutory prohibition against adding procedural or substantive requirements beyond those explicitly stated in CEQA.
The Court’s opinion may raise more questions than it answers: What are the “issues raised by the project”? Is that just a euphemism for whatever the challengers argue the EIR should have contained? What is “sufficient detail” and what is “relevant information” an EIR must “disclose”? Nor did the opinion appear to sufficiently grapple with the incredibly complex issues of causation and feasibility implicated by its holding on the “informational sufficiency” issue. While the Court disclaimed the need to perform an HRA to satisfy CEQA , its opinion appears to be headed in just that direction; what health impacts at what levels of exposure to what levels of ambient pollutants and to whom (sensitive receptors, children, elderly, asthmatics?) must be analyzed in an EIR for it to pass muster—assuming such an analysis is even possible? Even lay persons know there are many environmental and genetic causes leading to adverse respiratory and pulmonary health effects, and accurately or meaningfully predicting a particular project’s specific contributions to such future ailments in specific individuals or populations may be impossible. And if studies or analyses project opponents demand are, indeed, infeasible to perform, will the EIR omitting such analysis be insufficient simply because it did not adequately explain why it did not do the analysis it is not possible to do? And will this be so –as appears to be the case–even if evidence of such infeasibility is contained elsewhere in the record? These disturbing questions and undoubtedly others persist as a result of the Court’s main holding.
As a possible silver lining, the Court’s opinion does allude to “mixed questions” of law and fact falling along a continuum between procedural error and factual determinations, and suggests where the latter “predominate” the agency’s decision will be accorded more deference. Hopefully, this will prove to be the case in technical and scientific matters where the conclusions and analyses of the agency’s experts should continue to receive deference.
All in all, the Court’s decision is a victory for CEQA plaintiffs, and one which will likely make the preparation of legally adequate EIRs more difficult for local agencies and their consultants – who will now potentially be required to explain in the EIR why the EIR did not conduct an analysis that is not even feasible if project opponents claim it should have been done.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4th, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.