Newton Preservation Society et al. v. County of El Dorado
(2021) (Case No. C092069)

On June 16, 2021, the California Court of Appeal for the Third District issued its decision in Newton Preservation Society et al. v. County of El Dorado (Case No. C092069), in which the Court upheld a mitigated negative declaration (MND) despite the “low threshold” review standard.

As background, the County of El Dorado certified an MND for and approved the Newton Road Bridge project – a project consisting of the replacement of an existing bridge.  Petitioners challenged the validity of the MND, arguing the project would cause significant impacts to fire evacuation routes thereby requiring preparation of an environmental impact report (EIR).  The trial court denied the petition and upheld the MND.  Petitioners appealed and the Court of Appeal ultimately affirmed the trial court’s decision.

An EIR, as opposed to an MND, is required if substantial evidence in the whole record supports a fair argument that a project may have a significant effect on the environment.  This is considered a “low threshold” test and accords no deference to the lead agency’s determination.  It is often difficult for the lead agency to prevail under this standard.

In this case, petitioners argued substantial evidence supported a fair argument that the project will have a significant impact on resident safety and emergency evacuation because, when the bridge is closed while under construction, residents would be unable to safely evacuate.[1]  The “substantial evidence” supporting petitioners’ argument consisted of testimony from local residents and a retired firefighter, who stated residents would be unable to safely evacuate when the bridge was under construction.

The Court of Appeal first explained that petitioners erroneously framed the fair argument test.  “The question is not whether substantial evidence supports a fair argument that the proposed project will have significant impacts on resident safety and emergency evacuation.  As explained ante, the question is whether the project may have a significant effect on the environment. … Thus, the question before us is whether the residents’ comments upon which petitioners rely (given their burden on appeal) constitute substantial evidence supporting a fair argument that the project may have a significant effect on the environment or may exacerbate existing environmental hazards.”  (Italics in original.)

Public opinion may provide substantial evidence in certain circumstances.  However, interpretation of technical or scientific information requires an expert evaluation and public testimony on such matters does not constitute substantial evidence.  Here, the Court determined the local residents’ “dire predictions” were not sufficient to constitute substantial evidence.

The Court distinguished the residents’ testimony from cases where public opinion did constitute substantial evidence.  The Court explained, “[i]n contrast to the public comments in those three cases, here, the comments lacked factual foundation and failed to contradict the conclusions by agencies with expertise in wildfire evacuations with specific facts calling into question the underlying assumptions of their opinions as it pertained to the project’s potential environmental impacts.”  (Italics in original.)

Overall, this opinion reminds readers that public opinion is not always enough to win a challenge against an MND and speculative comments lacking factual foundation do not equate to substantial evidence.

[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.]

[1]           Petitioners presented three additional issues for appeal; however, those are addressed by the Court in the unpublished portion of its opinion.  Accordingly, this summary only discusses the published portion of the opinion, which concerns the evacuation issue.