In a partially published decision, the Fifth Appellate District Court of Appeal in Sierra Club v. County of Fresno rejected partial certification of an environmental impact report (“EIR”) and ordered the county to vacate its approval of the master-planned community.
Background
The County of Fresno approved a 55 and older master-planned community. Three nonprofit organizations subsequently challenged that approval alleging it violated the California Environmental Quality Act (“CEQA”) and the Planning and Zoning Law.
After review by the Fifth District and later the California Supreme Court, both courts substantively determined that the EIR failed to adequately discuss health and safety impacts from pollutants caused by the project’s development. The courts ordered that a revised EIR must be prepared to analyze how anticipated air quality effects would adversely affect human health, or explain why it is not scientifically feasible to include that analysis. Additionally, the EIR needed to either remove or support its conclusion that mitigation measures would “substantially” reduce air quality impacts.
After multiple rounds of appellate review, including a decision from the California Supreme Court, the trial court ultimately ordered the county to vacate its approval of the project. The developer appealed.
Court’s Decision
The developer argued that the trial court should have issued an order only partially decertifying the project’s EIR with respect to the health and safety impacts, but leave intact the balance of the EIR. The Court of Appeal disagreed.
Citing to CEQA’s statutory language and guidelines, the Court of Appeal explained that, before a project may be approved, one of the responsibilities of a lead agency is to certify that the EIR has been completed in compliance with CEQA. The court determined that a partial certification cannot mean complete. Thus, under the court’s interpretation, a partial certification is contrary to the requirement that an EIR is certified when it is complete. Applied to the county’s approval of the project, the court determined that the EIR was not complete because not all parts were in compliance with CEQA.
The Fifth District noted that other circuits disagree with its approach and provide for partial certification either under language in Public Resources Code section 21168.9(a) or if the findings for severance under Public Resources Code section 21168.9(b) are satisfied. The Fifth District countered that to allow partial certification under section 21168.9(a) would render statutory and guideline language requiring “the completion of” an EIR useless. While the Fifth District acknowledged that partial certification may be appropriate if the severance findings under section 21168.9(b) are satisfied, those findings were not met in Sierra Club v. County of Fresno because they would affect the statement of overriding considerations as a whole.
The Court of Appeal further noted that when an EIR has been decertified, it does not affect other aspects of the EIR that have been litigated and resolved. In this case, the court said that most of the EIR had been litigated and resolved, and thus, new challenges to those components were not allowed on remand. In more simple terms, the balance of the EIR was still substantively adequate, but could not be considered “complete”, and therefore, the project entitlements could not be considered “approved”.
Key Takeaway
While there is a circuit split, the Fifth District’s interpretation that partial certification is only appropriate if the 21168.9(b) findings for severance are satisfied may limit future courts from agreeing to partially certify an EIR unless those findings are met. Thus, when defending an EIR in court, an agency will want to consider showing how it satisfies the factors for severance when requesting that a court only partially decertify an EIR.
Questions
If you have any questions regarding this Legal Alert, please contact the following attorney from our office or the attorney with whom you typically consult.
Mona Ebrahimi
mebrahimi@kmtg.com | 916.321.4597