Opinion Analysis: Sierra Club v. City of Fresno S219783
In this recent unanimous opinion (authored by Justice Chin)
the California Supreme Court clarified the standard of review for a claim that an
Environment Impact Report (EIR) inadequately discusses an issue required by the
California Environmental Quality Act (CEQA). Although
this issue and its discussion were framed within the specialized area of CEQA
law, the court’s opinion is significant to the appellate standard of review and
a court’s role in reviewing expert scientific findings.
I had the opportunity to be one of the mock justices in a moot
court oral argument presented by the plaintiffs, as part of the California
Constitution Center’s California Supreme Court moot court program.[1]
Having read some of the opposition briefs and seeing the issues the plaintiffs
anticipated, I find the court’s opinion to be bold and decisive in laying down
a general rule of appellate review for CEQA. Specifically, the opinion does not
shy away from announcing a rule that applies to all future EIR adequacy
challenges, thereby implicating a potentially very broad swath of CEQA
litigation.
The EIR at issue was prepared in connection with a project
called Friant Ranch, which is a master-planned community for active adults age fifty-five
or older. Friant Ranch is to be located on former agricultural land near the San
Joaquin river in North Central Fresno County.[2]
The county prepared the EIR. Plaintiffs took issue with two things: the EIR’s analysis
of an increased production of hazardous air pollutants — particularly those
resulting from the influx of cars from project residents; and the EIR’s
discussion of the possible human health effects due to increased air pollution.
Plaintiffs challenged the county’s certification of the EIR by a writ of
administrative mandamus. The trial court rejected plaintiffs’ claims and certified
the EIR.[3]
Plaintiffs appealed, and the court of appeal agreed with the
plaintiffs, holding that the EIR’s treatment of the increased air pollution
caused by the project was inadequate “because it does not analyze the adverse
human health impacts that are likely to result from the air quality impacts
identified in the EIR.”[4]
The panel pointed to the EIR’s inadequate explanation of the impact from additional
ozone residents would create by using automobiles to come and go from the
project. The San Joaquin Valley Air Basin, where the project would be, already
has one of the most severe ozone pollution problems in California.[5]
The court of appeal noted that the information in the EIR did not enable a
reader to determine whether this “will require people with respiratory
difficulties to wear filtering devices when they go outdoors in the project
area or nonattainment basis or, in contrast, will be no more than a drop in the
bucket to those people breathing the air containing the additional pollutants.”[6]
Real party in interest Friant Ranch successfully petitioned
the California Supreme Court for review. The two main issues for consideration
were: does the substantial evidence standard of review apply to a court’s
review of whether an EIR provides sufficient information on a topic required by
CEQA, or is this a question of law subject to independent judicial review; and is
an EIR adequate when it identifies the health impacts of air pollution and
quantifies a project’s expected emissions, or does CEQA further require the EIR
to correlate a project’s air quality
emissions to specific health impacts?[7]
The first issue reflects a central administrative law concern,
where the courts generally give a high degree of deference to the decisions
administrative agencies make, in recognition of their expertise in specified
areas.[8]
The standard of review an appellate court generally uses to review the findings
of an expert agency reflects this — the substantial evidence standard for
factual determinations. If substantial evidence supports an agency’s factual
determination, then a court will uphold such a finding on appeal.[9]
Friant Ranch contended that such deference should be shown if the inadequacy
challenge involved any discussion of
a factual issue and that independent judicial review (de novo review) should be
reserved only for those instances where a required topic of discussion was entirely
omitted.
The standard of review for an inadequacy challenge also has significant
practical implications for appellate challenges to future contested EIRs. A
substantial evidence standard of review for an inadequacy challenge would make
such challenges more difficult. Practically, few appeals based on inadequacy of
discussion in an EIR would be filed. But if the standard is de novo, then this might
have the effect of inviting appeals based on inadequacy of discussion for every
contested EIR.
Although the stakes for future litigation were high, the
California Supreme Court did not hesitate to agree with the court of appeal that
the standard for appellate review of an inadequacy of discussion claim should
be de novo.[10] The
California Supreme Court held that the usual deference to factual
determinations by agencies does not extend to the adequacy of an EIR’s
discussion of a required topic. The court viewed this as a legal issue not a factual one, even though the discussion involved
factual determinations. Because the adequacy of a discussion is a legal
determination, the court is in as good a position to make a determination as
any expert agency. By focusing on the EIR as an informational document designed
to provide decisionmakers (politicians and the public) with sufficient information
to foster informed public participation about the environmental issues
involved, the court asserted its competence as a representative reader.[11]
Of course, what determines the adequacy or inadequacy of a
discussion is specific to the nature of the topic being discussed. Here, the
claim of inadequacy pertained to the EIR’s failure to adequately discuss the
connection between the increased air pollutants and the possible significant
impacts on human health that the project might cause. This leads to the second
question accepted for review — does CEQA require the EIR to correlate a project’s air quality
emissions to specific health impacts?
The court essentially answered yes, but with a significant
caveat: only when the scientific methodology employed by the agency is able to show
the connection between the increased air pollutants and specific health
impacts. Furthermore, the court also placed the burden on the EIR to explain why,
given the scientific methodology the agency employs, it cannot provide a more
specific connection to health impacts. [12]
The court acknowledged that the EIR did include some
discussion of the health impacts of various pollutants.[13]
Nevertheless, the court concluded that, after reading the EIR, the public would
have no idea of the health consequences that result when more pollutants are
added to the already polluted county environment.[14]
The court stated that a sufficient discussion of significant health impacts
requires not merely a determination of whether an impact is significant, but
some effort to explain the nature and magnitude of that impact.[15]
The court was less specific regarding how the EIR could have
framed the analysis so as to adequately inform the public and decision makers
of possible adverse health effects. The court noted that the court of appeal identified
several ways but only mentioned one in the opinion — that the county could have
identified the project’s impact on the number of days per years that the air
quality would not attain an acceptable level (“days of nonattainment per year.”)[16]
Notably, the court did not endorse the appellate panel’s “extreme example” of
specifying that people with respiratory difficulties would have to wear
filtering devices when they went outdoors in the project area.[17]
Rather, the court emphasized the agency’s discretion in choosing what type of
analysis to provide, stating the agency’s duty as follows: “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.”[18]
Overall, the court summed up the EIR here as generally
outlining some of the unhealthy symptoms associated with exposure to various
pollutants, but not giving any sense of the nature and magnitude of the health
and safety problems caused by the physical changes resulting from the project
as was required by the CEQA guidelines.[19]
The court acknowledged that “[p]erhaps it was not possible to do more.”[20]
“But even in that case, we would have found the EIR inadequate because it
failed to explain why it was not feasible to provide an analysis that connected
the air quality effects to human health consequences.”[21]
It is in this area of the second alternative — when it is
not feasible to provide an analysis that connects the air quality effects to
human health consequences — that the court appears to return some deference to scientific
expertise. The court had initially appeared to withdraw deference by announcing
that the standard of review for a claim of inadequacy of discussion was de novo
rather than substantial evidence. Yet while the court categorically announces
that the standard of review for an inadequacy claim is de novo, it makes an
important distinction for “instances where the agency’s discussion of
significant project impacts may implicate a factual question that makes
substantial evidence review appropriate.”[22]
One such instance is “a decision to use a particular methodology and reject
another.”[23] In
such an instance the standard is substantial evidence review.
If one connects this substantial evidence review standard
for the choice of methodology (a deferential standard) with the court’s
acknowledgement that an adequate discussion in an EIR can be satisfied by
explaining why a more detailed analysis is not scientifically possible given
the methodology used, one can imagine the following scenario. What happens when
an agency justifies not producing more specific correlations between air
pollutants and health effects on the grounds that more specific correlations
are not possible, based on the scientific
methodology the agency had chosen to
employ. When critics of the EIR contend that a more specific connection is
possible based on another methodology,
what standard of review will an appellate court employ in reviewing this claim?
Based on the court’s discussion in this case, it appears that the agency’s
decision to use one methodology and reject another would be subject to
substantial evidence review. This might return one significant area of
inadequacy discussion — whether further explanation is not possible given the
scientific methodology chosen — to the deferential standard.
This does appear to be an area that fits within the
traditional model of legal deference to scientific authority. Typically, a
court does not have the scientific expertise to adjudicate between competing
scientific methodologies. But one could think of a situation in which an agency
chooses a methodology that is arguably “junk science.” Could the court then
engage in de novo review? What about a less extreme example, in which the
methodology chosen is generally recognized as science, but simply has less followers
in the scientific community than another methodology?
These are further questions that may have to be litigated in
the area of CEQA inadequacy claims.
–o0o–
David
Aram Kaiser, a Senior Research Fellow with the California Constitution Center,
is of counsel to Moskovitz Appellate Team and has been an adjunct professor at
Hastings College of the Law and Golden Gate University Law School. He was a
judicial staff attorney at the California Supreme Court for 11 years, but the
views expressed here are solely those of the author. This article does not
purport to reflect the views of the California Supreme Court or any of its
justices and is based entirely on information available to the public.
[1]
All the views expressed here are purely my own and do not purport to represent
the views of the litigants or the California Constitution Center.
[2] Sierra
Club v. County of Fresno (2018) at 1–2.
[3] Id. at 3–4.
[4] Sierra
Club v. County of Fresno, (Cal.App. 2014)
[5] Id. at 302.
[6] Id. at 305.
[7]
The two additional issues accepted for review, which I am not discussing in
this piece, were: does a lead agency impermissibly defer formulation of
mitigation measures when it retains discretion to substitute the adopted
measures with equally or more effective measures in the future as better
technology becomes available, or does CEQA prohibit the agency from retaining
this discretion unless the mitigation measure specifies objective criteria of
effectiveness; and do mitigation measures adopted by a lead agency to reduce a
project’s significant and unavoidable impacts comply with CEQA when substantial
evidence demonstrates that, on the whole, the measures will be at least
partially effective at mitigating the impact, or must such measures meet the
same (or even heightened) standards of adequacy as those adopted to reduce an
impact to a less-than-significant level?
The court of appeal held that the lead agency
impermissibly deferred the mitigation measures when it approved the EIR, but
the California Supreme Court held that the substitution clause in the EIR that allowed
an agency to substitute different air pollution measures as they become
available did not violate CEQA. (Sierra Club, supra note 1, at 25–28.) The California Supreme Court held “that
as long as the public is able to identify any adverse health impacts clearly,
and the EIR’s discussion of those impacts includes relevant specifics about the
environmental changes attributable to the project, the inclusion of mitigation
measures that partially reduce significant impacts does not violate CEQA.” (Id. at 28.)
[8] See,
e.g., Western
States Petroleum Assn. v. Superior Court (1995) at 571–574.
[9] “‘In
reviewing for substantial evidence, the reviewing court “may not set aside an
agency’s approval of an EIR on the ground that an opposite conclusion would
have been equally or more reasonable,” for, on factual questions, our task is
“not to weigh conflicting evidence and determine who has the better argument.”’”
(Sierra Club, supra note 2, at 9, citing Vineyard
Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007)
at 435.)
[10] Sierra Club, supra note 2, at 15.
[11] “The
ultimate inquiry, as case law and the CEQA guidelines make clear, 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.’” (Sierra Club, supra note 2, at16,
quoting Laurel
Heights Improvement Assn. of San Francisco, Inc., v. The Regents of the
University of California, (1988) at
405).
[12] Sierra Club, supra note 2, at 22 & 24.
[13] Id.at 19.
[14] Id.at 20.
[15] Id.at 20–21.
[16] Id.at 24.
[17] Sierra
Club v. County of Fresno, (Cal.App. 2014) at 305.
[18] Sierra Club, supra note 2, at 24.
[19] Ibid.
[20] Ibid.
[21] Ibid.
[22] Id. at 12.
[23] Ibid.