Supreme Court Shapes Future CEQA Analysis of Air Quality Impacts, Clarifies Standard of Review

Environmental/Land Use/Aviation Alert (December 2018)

On December 24, 2018, the Supreme Court of California published its decision in Sierra Club v. County of Fresno, Case No. S219783, affirming the Court of Appeal’s ruling that the air quality analysis within a project’s environmental impact report (EIR) was inadequate under the California Environmental Quality Act (CEQA) because it failed to correlate the emission of project-related pollutants to specific adverse human health impacts.  The Court’s decision will likely affect future air quality analyses in EIRs, as well as how courts approach the standard of review in CEQA litigation. 

Project and Procedural Background

The project at issue was the Friant Ranch Project (Project), a 942-acre mixed-use master-planned community in Fresno County, consisting of, among other components, 2,500 age-restricted residential units and 250,000 square feet of commercial space.  The County of Fresno (County) was the Project’s “lead agency” for purposes of CEQA and facilitated the environmental review and EIR preparation.

After the County approved the Project, the Sierra Club and two other organizations filed a petition for writ of mandate challenging the Project’s EIR on several CEQA grounds.  The trial court denied the petition in its entirety.  Subsequently, the Court of Appeal reversed the trial court with respect to the EIR’s air quality analysis, holding that the EIR was inadequate because it failed to include analysis correlating the emission of air pollutants to human health impacts.  The Court of Appeal also concluded that certain air quality mitigation measures were deficient.

The Supreme Court granted review on the following issues:

  1. What standard of review a court must apply when adjudicating a challenge to the adequacy of an EIR’s discussion of adverse environmental impacts and mitigation measures;
  2. Whether CEQA requires an EIR to connect a project’s air quality impacts to specific health consequences;
  3. Whether a lead agency impermissibly defers mitigation measures when it retains the discretion to substitute later-adopted measures in place of those proposed in the EIR; and
  4. Whether a lead agency may adopt mitigation measures that do not reduce a project’s significant and unavoidable impacts to a less-than-significant level.
The Supreme Court’s Holdings

Standard of Review

The decision provides a lengthy initial discussion of CEQA’s “abuse of discretion” standard.  Public Resources Code section 21168.5 provides that an abuse of discretion may occur “either by failing to proceed in the manner CEQA provides or by reaching factual conclusions unsupported by substantial evidence.”  The Court’s question centered on whether the review would be conducted de novo or under the substantial evidence standard, pursuant to Public Resources Code section 21168.5. 

The Court held that when analyzing the insufficiency of supplied environmental analysis, the Court is determining if the EIR serves its purpose as an informational document, which requires the Court to determine if the agency has complied with the law of CEQA.  Therefore, the proper standard is de novo.  In arriving at its holding, the Court rejected the developer’s argument that de novo review is required when a required discussion is omitted altogether and substantial evidence review is required when that discussion is subject to an insufficiency claim.    

Air Quality Analysis

The EIR’s air quality analysis included a general discussion of adverse health effects of certain pollutants, but the EIR did not connect the Project’s levels of pollutants and particulate numbers with specific adverse human health effects.  The Court held that the failure to disclose particular health effects related to particular pollutants emitted from the Project amounted to a failure to explain the impact’s nature and magnitude—thus, the EIR was inadequate as an informational document. 

The Court acknowledged it may not be scientifically possible to undertake the level of air quality analysis that it concluded CEQA requires.  The Court stated that any scientific infeasibility should be explained in the EIR, “in a manner reasonably calculated to inform the public of the scope of what is and is not yet known about the Project’s impacts.”  The Court also clarified that an agency has discretion in framing its air quality analysis, although the Court referenced the Court of Appeal’s discussion of potential methods, including identifying the Project’s impact on the number of nonattainment days per year.

Mitigation Measures   

The Court reviewed the challenges to the EIR’s mitigation measures and reversed the Court of Appeal, holding that notwithstanding the inadequate air quality analysis, the mitigation measures complied with CEQA.  The Court’s holdings included the following:
  • A mitigation measure’s “substitution clause,” which allowed the County to substitute adopted mitigation with equally or more effective measures in the future as better technology becomes available, complied with CEQA and was not an impermissible deferral or abuse of discretion.
  •  Mitigation that partially reduces significant impacts does not violate CEQA, so long as the public is able to identify adverse health impacts and the discussion of those impacts includes relevant specifics about the Project’s environmental changes.  If significant effects still exist despite implementation of feasible mitigation, an agency may approve a project with a statement of overriding considerations.  
  • The EIR’s mitigation measures were not vague or without sufficient guidance, and mitigation efforts may be enforceable through permit conditions, agreement, or other measures. 

The Supreme Court's decision will likely have an effect on future air quality analyses under CEQA. Agencies and applicants should ensure that an air quality analysis includes specific discussion of project-emitted pollutants and their correlation to specific adverse human health impacts. To the extent the required analysis is not scientifically possible, the EIR should clearly explain this infeasibility.

Project applicants and agencies also should take note of the Court's ruling on the standard of review. The "proceeded in a manner required by law" prong of Section 21168.5 seems to be a continually growing focus for petitioners challenging projects under CEQA. The Court's conclusion that a review of the sufficiency of a supplied analysis is conducted de novo makes it even more important that analysis within an EIR needs to be clear, detailed, and project-specific.

The Court's full opinion can be found HERE.

[This case 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.]