United States: EIR Air Quality Analysis Insufficient: Lack Of Specificity Regarding Human Health Impacts, Mitigation Measure Enforceability, And Evidence Supporting Measures’ Effectiveness In Substantially Reducing Air Quality Impacts Blamed

Last Updated: June 18 2014

Article by Zak Welsh and Jeff Forrest

Sierra Club et al. v. County of Fresno et al., (Friant Ranch, L.P.) (5th Dist., 05/27/2014, F066798)

Faced with an appeal of the Superior Court of Fresno's approval of a controversial Environmental Impact Report, the Fifth District Court of Appeal reversed and found that the challenged EIR violated the California Environmental Quality Act by failing to adequately (1) analyze the health impacts associated with the project's air quality impacts, (2) explain how proposed mitigation measures would be enforced, and (3) identify the extent to which "substantial" reductions in air quality impacts would be achieved.

The Proposed Project

Friant Ranch is a proposed 942-acre master planned retirement community for active adults, located in north Fresno County near the San Joaquin River. The proposed development includes both single- and multi-family residential units, a community center, trails, parks, and open space.

The CEQA Challenges

At the outset, the court explained that the prejudicial abuse of discretion standard of review used in CEQA cases only requires a plaintiff to demonstrate that the "failure to include relevant information precluded informed decisionmaking by the lead agency or informed participation by the public" and not "that the outcome of the administrative process would have been different if the lead agency had complied with CEQA's disclosure requirements."

The Sierra Club first argued, unsuccessfully, that the EIR lacked necessary detail regarding the amount and location of the wastewater discharged from the project's proposed wastewater treatment facility. The draft EIR addressed the wastewater issue by simply noting that "the Project proposes to use all effluent for a combination of irrigation of landscape features within the Friant Ranch Specific Plan development and turf at Lost Lake Park or other suitable disposal area in the immediate vicinity." Though the statement was general and unspecific, the court found that it was legally sufficient for a draft EIR because it "provide[d] enough detail to enable members of the public to present comments during the administrative review process about location of effluent application and its potential environmental impacts." The court also excused the brevity of the draft EIR, in part, due to the detailed information provided in the final EIR, which included detailed answers to comments received during the circulation period and specific measures of effluent capacity and discharge at various locations during several intervals throughout the year.

Next, appellants claimed that the EIR's discussion of air quality impacts failed to adequately explain how and to what extent the air pollutants emitted by the Friant Ranch project would impact public health. Although the EIR identified the types and amounts of pollutants the project was expected to produce and a general description of how each pollutant affects public health, the court found the discussion inadequate because it "did not correlate the . . . emission that would be generated by the project . . . to adverse human health impacts that could be expected to result from those emissions."

Appellants also challenged the County's proposed air quality mitigation measures on the ground that the EIR failed to make them "fully enforceable through permit conditions, agreements or other measures." Cal. Pub. Res. Code § 21081.6(b). The mitigation measure at issue contained twelve separate provisions ranging from residential energy consumption to the promotion of bicycle usage. Noting that the mitigation provisions themselves failed state "expressly what [the] County is required to do to render the measures enforceable" and the EIR contained no discussion of the measures' enforceability, the court held that the mitigation measures were "vague on matters essential to enforceability and, therefore. . . violated . . . CEQA."

Finally, the Sierra Club took issue with the mitigation measure's conclusory prefatory statement: "Implementation of the following mitigation measures will substantially reduce air quality impacts related to human activity within the entire Project area . . . ." The court directed the County to either explain or delete the statement because the County failed to "include enough facts and analysis in the EIR to allow a reviewing court to determine whether that finding of fact is supported by substantial evidence."

The Court of Appeal concluded by directing the superior court to compel the County to vacate the approval of the Friant Ranch project and not to approve it until the County prepared a revised EIR that clarifies (1) what human health impacts that are likely to result from the project's air quality impacts; (2) how the various mitigation measures will be enforced; and (3) how and to what degree the mitigation measures will substantially reduce air quality impacts.

CEQA Implications

Given the Court of Appeal's approach in County of Fresno, lead agencies must remain diligent to assure that their findings are supported by facts. The court's opinion does not reveal the extent to which the court analyzed the Air Quality Technical Study for evidence of how the mitigation measures mitigate the impacts to below a level of significance. Nevertheless, this information is included in most Air Quality Technical Studies and other courts have been clear that lead agencies can rely upon the substantiated conclusions of technical experts to support its findings. See, e.g., Architectural Heritage Ass'n v. County of Monterey (2004) 122 Cal.App.4th 1095, 1116; California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026, 1059. Many lead agencies take steps to remove doubt about the enforceability of their mitigation measures by specifically identifying (1) the timing for implementation of the mitigation measure; and (2) the agency responsible for verifying its implementation. Furthermore, where the lead agency desires the applicant to make a good faith effort to implement mitigation, but there is uncertainty as to whether that measure will be applicable to the final design of the project, some lead agencies impose the mitigation or include it as a project design feature, but clarify that they do not rely on its implementation to justify the agency's conclusion regarding impact significance. Finally, where implementation of specific measures is uncertain, agencies can also create a menu of potentially applicable mitigation measures and make them enforceable by assigning a performance measure the applicant must meet regardless of which measures are ultimately implemented.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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