EIR Fails to State Pollutants Resulting from Development

FRESNO, CA—Late last month, the California Supreme Court issued a significant decision that will impact projects across California concerning how specific an air quality/health impact analysis needs to be for a proposed project. The court stated that when a project will result in emissions that exceed established air quality thresholds, an environmental impact report must detail the health risks associated with the emissions.

The case is Sierra Club v. County of Fresno. The court noted the Environmental Impact Report/EIR 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. The EIR failed to provide an adequate discussion of health and safety problems that will be caused by the rise in various pollutants resulting from the project’s development.

The project is a master-planned senior community on 942 acres of unirrigated grazing land in the San Joaquin River. The EIR noted the project would emit nitrogen oxides in excess of the amounts established by the Air Pollution Control District. The Sierra Club argued that the EIR failed to explain adequately how these emissions would impact health and did not define mitigation measured to address air quality impacts. Would people with respiratory difficulty need to wear filtering devices outdoors/? And would the project result in additional days when Fresno’s air pollution exceeded federal and state standards?

In a unanimous 33-page opinion, 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 California Environmental Quality Act/CEQA rules regarding deferral and adequacy of mitigation measures. 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 more than 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.

Shareholder Arthur Coon who co-heads the land use practice group in Miller Starr Regalia’s Walnut Creek office says this raises more questions than answers. In this exclusive, Coon shared his analysis of the implications of the decision.

GlobeSt.com: What is your quick take on this decision?

Coon: Mainly that its principal holding muddies the standard of judicial review for EIR challenges, may raise more questions than it answers and definitely raises the bar for adequacy of EIR air quality analyses by making them considerably more difficult to write in a legally defensible way. As this Supreme Court has emphasized before in looking at greenhouse gas analysis, for example, in its 2017 opinion in Cleveland National Forest Foundation v. Sandag, EIR preparers must be ever alert not only to use the best available and most current scientific and factual data, but must also avoid substantive informational analysis of an impact that simply labels it significant and moves on. More analysis and discussion of the nature and magnitude of the significant impacts is required.

GlobeSt.com: How does the decision impact the way courts will now view challenges to EIRs?

Coon: Its most significant holding, and the main reason the decision was so highly anticipated, concerns CEQA’s standard of review for lawsuits challenging the informational sufficiency of an EIR’s discussion of significant air quality impacts. This case holds the standard is essentially a hybrid or a mixed question of law and fact, that doesn’t fit neatly within the usual procedural/factual dichotomy with which CEQA attorneys and practitioners are familiar. The classic standard of review for prejudicial error, as articulated in prior Supreme Court decisions like Vineyard Area Citizens for Responsible Growth Inc. v. City of Rancho Cordova (2007) 40 Cal. 4th 412, has two boxes in which essentially all challenges were fit, i.e., alleged procedural errors subject to more scrutinizing de novo review and alleged factual errors reviewed under a deferential substantial evidence standard favoring the lead agency.

This case departs from the standard framework. Rather than viewing the issue of informational sufficiency as a factual issue concerning whether facts and technical data contained in the EIR and record support the EIR’s and agency’s ultimate conclusions, in which case they should be afforded deference, the Supreme Court here focused on the need to connect the dots between the raw air quality data and resulting human health effects. It emphasized that to be sufficient, the EIR’s 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.

GlobeSt.com: What else of significance did the case address?

Coon: The court rendered some more pedestrian holdings regarding deferral, permissible content and enforceability of mitigation measures. It found an EIR’s unexplicated assertion lacking in factual support, that mitigation measures will substantially reduce a project’s air quality impact, although not to a level of insignificance and is a bare conclusion that fails to satisfy CEQA’s disclosure requirements; rather, the “EIR must accurately reflect the net health effect” of such proposed measures. A “substitution clause for future (equally or more effective) mitigation methods (as they become feasible)” does not offend the prohibition against deferred mitigation, however, and should be encouraged as promoting CEQA’s environmental protection goal.

GlobeSt.com: What potential issues and implications for development do you foresee this decision creating?

Coon: More difficulty in preparing legally sufficient air quality analyses in EIRs for large projects in impacted air basins that exceed applicable quantitative air quality thresholds of significance and uncertainty as to what analysis and discussion must be included. The more vague standard of review applicable to informational sufficiency claims will provide more opportunities for project opponents to challenge EIRs, and less certain guidance for trial and appellate judges tasked with adjudicating such challenges. In my view, the decision tends to weaken or lessen the lead agency’s discretion to design its own EIR, the strong presumptions and inferences traditionally indulged in favor of an EIR’s adequacy and the salutary prophylactic function of applying deferential substantial evidence standard of review to far-too-easily alleged claims of the omission of relevant information. Analyzing a project’s air quality impacts and their relation to ultimate human health effects in affected populations in particular poses incredibly complex scientific issues of causation, feasibility and evolving science implicating highly technical data and sophisticated modeling. Accurately or meaningfully predicting a particular project’s specific contributions to future respiratory and pulmonary health effects in specific individuals or populations may be infeasible or exceedingly difficult. Overall, I see the court’s decision as mostly a victory for CEQA plaintiffs that will make the preparation of legally adequate EIRs more difficult for local agencies and their consultants, who will now, as the Supreme Court acknowledged, potentially be required to explain why the EIR did not conduct an analysis that is not feasible if project opponents claim it should have been done.