Sierra Club v. County of Fresno (Case No. F079904)
Just in time for Thanksgiving, and as part of the continuing saga for the Friant Ranch project, the California Court of Appeal’s Fifth District issued its decision in Sierra Club v. County of Fresno on the question of whether the legal remedy of a partial EIR decertification was available to the lead agency and project applicant in a case where parts of the EIR were inadequate. In deciding the legal issue before it, the Fifth District rejected a statutory interpretation that allows for partial decertification “because an EIR is either completed in compliance with CEQA or it is not.” The Fifth District alternatively held that, even if CEQA allowed for partial decertification, the facts in the case at hand did not allow for it because the CEQA violations affected the statement of overriding considerations “and, thus, taint[ed] the certification of the EIR as a whole.”
As background, in 2018, the California Supreme Court decided a legal challenge to the Friant Ranch project, which is located on over 900 acres in the County of Fresno; proposes a mixed-use community with 2,500 residential units, 250,000 square feet of commercial land, and over 400 acres of open space; and has been in planning and processing for a decade. The Supreme Court held the air quality analysis of the project EIR was inadequate and remanded the case back to the trial court.
On remand, the trial court granted the writ of mandate and ordered the County to set aside project approvals until the EIR complied with CEQA. The County and applicant moved to vacate and reconsider the judgment and writ, arguing that public policy did not support full EIR decertification, CEQA mandated courts issue narrowly tailored remedies, and the facts of the case showed severability would be proper. The motion was denied, and the applicant appealed, arguing the trial court’s broad order did not comply with Public Resources Code section 21168.9, which governs judicial remedies for CEQA violations.
The Fifth District’s analysis and rejection of a partial decertification remedy centered on two grounds. First, based on statutory interpretation and prior precedent, the Fifth District concluded that partial certification of an EIR is not permitted under Public Resources Code sections 21100 and 21151, and therefore, by extension, no partial decertification can be granted as remedy. Second, even if CEQA allows partial decertification, the Fifth District held that the project EIR’s defects could not be severed from the approvals the applicant sought to preserve during the corrective action because the CEQA violations affected the statement of overriding considerations. (The portion of the opinion explaining why the defects could not be severed from the approvals is unpublished, creating a shroud of mystery as to the framework applied by the Fifth District when reaching a negative determination on severability.)
The Fifth District also briefly addressed the concern that full decertification of the EIR potentially would result in the agency and applicant having to relitigate the adequacy of the EIR’s impact analyses that were not at issue in prior legal challenges. The Fifth District was satisfied that the doctrines of res judicata, collateral estoppel, and exhaustion of administrative remedies would provide sufficient protection against this concern.
In upholding the lower court’s decision, the Fifth District affirmed its continuing support for its prior decision in LandValue 77, LLC v. Board of Trustees of Cal. State University (2011) 193 Cal.App.4th 675 on the issue of partial EIR decertification. As a result, the Fifth District continues to hold a position on this legal issue in seemingly direct conflict with the position taken on the issue by the Second and Fourth Districts. Consequently, public agencies and applicants have a better chance at obtaining partial EIR decertification and preserving approvals unaffected by EIR defects in the Second and Fourth Districts, which generally view the remedy as limited to only the mandates necessary to achieve CEQA compliance. (See Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260 and Center for Biological Diversity v. California Department of Fish and Wildlife (2017) 17 Cal.App.5th 1245.)
[This alert does not constitute legal advice and no attorney-client relationship is created by viewing or responding to this alert. Legal counsel should be sought for answers to specific legal questions.]