Sierra Watch v. County of Placer
(2021) (Case No. C088130)

Sierra Watch v. Placer County, a decision issued on August 24, 2021 by the Third District of the Court of Appeal, is a sobering reminder to agencies of the importance of EIRs serving as informational documents, even where such information seems self-evident and arguably intuitive.  The subject of the legal action is a resort project located on 94 acres in Olympic Valley and approved by Placer County in 2016.[1]  Sierra Watch challenged the project approval on CEQA grounds, specifically – the project EIR’s description of environmental setting and water quality, air quality, and noise impact analysis and mitigation, discussed in the published portion of the opinion, and the EIR’s analysis and mitigation of climate change, wildfire, and traffic impacts, covered in the unpublished part of the court’s decision.[2]

Environmental Setting

The court emphasized the importance of the regional setting to the environmental review of development projects, with a particular focus to be placed on “environmental resources that are rare or unique to that region and would be affected by the project.”  In this case, the court found that the county failed to place a special emphasis on Lake Tahoe in its discussion of the environmental setting, particularly in the context of the project’s water quality impacts.  The court criticized both the draft and final EIRs because both documents “largely appeared to presume that Like Tahoe needed no introduction, and so little needed to be said about it.”  The project’s draft EIR contained one parenthetical reference to the lake in the water quality analysis, but without discussion of the lake’s importance, characteristics, or current condition.  The project’s final EIR’s “Master Response regarding [the Tahoe Regional Planning Agency (TRPA)] Thresholds” discussed vehicle miles traveled (VMT) in the Lake Tahoe Basin, but without, once again, describing the lake’s importance or even explaining how the VMT figures related to the lake.  Six days before the project approval, the county revealed that “VMT and its related effects — tailpipe emissions and crushed abrasives — have a direct role in lake clarity.”  The court found the EIR’s discussion of the environmental setting improperly scarce and therefore insufficient.

With respect to the air quality analysis’ consideration of the Lake Tahoe basin, Sierra Watch’s objections to the air quality analysis consisted of the EIR’s alleged lack of discussion of the “bi-state regulatory regime that governs the Basin,” the basin’s “environmental carrying capacity,” or “VMT in the Basin.”  The court noted, however, that this discussion was presented in responses to comments, and Sierra Watch’s belated argument that such discussion “came too late in the administrative process” was forfeited as it was raised in the reply brief.  Similarly, Sierra Watch failed to explain why the EIR’s summary of data about the basin’s air quality conditions did not sufficiently “describe the current air quality conditions.”  Lastly, Sierra Watch’s claim that more information was needed was likewise rejected as Sierra Watch failed to identify which information was lacking and asking for “complete information” was “ask[ing] for too much.”

VMT and Air Quality Impacts

The court faulted the county for its inconsistent and incomplete analysis of the project’s VMT and air quality impacts on Lake Tahoe.  While the EIR stated that the project would not result in an exceedance of TRPA’s cumulative VMT threshold for the Lake Tahoe Basin, it showed the project would likely exceed TRPA’s project-level threshold of significance for traffic in the basin.  After discussing TRPA’s thresholds, the county then concluded they did not apply, without specifying which thresholds did apply.  The EIR cannot, the court held, “simply summarize, and then declare inapplicable, another agency’s framework for evaluating these types of issues.”

While the county endeavored to account for the connection between VMT and Lake Tahoe (and the corresponding water quality and air quality impacts), the court held “its belated discussion of these issues came too late” because it came in the form of post-EIR responses to comments provided just six days before the project approval hearing.  The court underscored that “CEQA requires agencies to discuss a project’s potentially significant impacts in the draft EIR and final EIR,” because – to find otherwise – would deny the public an opportunity to “test, assess, and evaluate” the information.

The court also held that the project’s EIR erroneously underestimated expected cumulative VMT because it “improperly ignored the expected addition of VMT from other anticipated projects, including another large development the [c]ounty was itself considering approving.”

Noise Impacts

The court rejected Sierra Watch’s objections to the EIR’s discussion of the “duration of construction noise at any specific location” and of “how noise could affect residents’ living patterns, speech, sleep, and health.”  The EIR indeed discussed both.  But the court agreed that the EIR fell short because, with one exception for a boarding school, it never considered impacts to sensitive receptors lying outside what was determined to be an “arbitrary” 50-foot zone, nor did it discuss its reasons for not doing so.  Although the court agreed the EIR improperly ignored impacts beyond a certain radius, it could “not, at this stage, say those unconsidered impacts were insufficiently mitigated.”

Regarding Sierra Watch’s other arguments on the mitigation of noise impacts, the court did not consider it improper for the EIR to include additional protections for the school as a receptor found to be particularly sensitive to daytime noise, but not other receptors.  However, the mitigation measure requiring “operations and techniques” to “be replaced with quieter procedures (e.g., using welding instead of riveting, mixing concrete off-site instead of on-site) where feasible and consistent with building codes and other applicable laws and regulations” was found inadequate for two reasons.  First, the measure “defers until later the determination of which construction procedures can feasibly be changed and how these procedures can be modified to be quieter.  And it offers no instruction on how either of these determinations are to be made.”

Takeaway

This case highlights the fine line lead agencies walk when preparing EIRs for development projects.  On the one hand, the EIR is not required to have all the information available on each subject but, on the other hand, the EIR must timely inform the public of the project’s environmental setting and impacts.

[1] Sierra Watch challenged the county’s resort project approval in two lawsuits, both of which were the subject of two separate appeals.  In one of its suits (Sierra Watch v. Placer County (2021) 69 Cal.App.5th 1), Sierra Watch alleged the county approved the project in violation of the Ralph M. Brown Act.  The discussion herein does not address the county’s alleged Brown Act violations and pertains only to the second suit brought on CEQA grounds.

[2] The subject of this case summary is the published portion of the opinion.

[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.]