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In a 6/1 opinion, the California Supreme Court held that the San Diego Association of Governments (SANDAG) did not abuse its discretion by failing to present a consistency analysis in the EIR for its 2011 regional transportation plan (RTP) comparing anticipated GHG emissions with the long-term reduction goals presented in Executive Order (EO) S-3-05, in Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal. 5th 497.  The court reasoned that SANDAG had adequately informed the public, using information available at the time, of inconsistencies with overall state climate goals.

In 2011, SANDAG issued its RTP as a 40-year blueprint for regional transportation planning. The RTP was accompanied by an EIR that used three thresholds of significance to assess GHG impacts. Compared to existing (2010) conditions, the EIR found GHG impacts to be “not significant” in 2020, but significant in both 2035 and 2050. The EIR also analyzed GHG emissions against statutory goals for the years 2020 and 2035, but did not compare emissions against the long-term (2050) goal set forth in EO S-3-5 (80 percent below 1990 levels by 2050).  In response to comments that were critical of the GHG analysis, SANDAG maintained that it had no obligation to analyze projected GHG emissions against the Executive Order.

Several groups filed lawsuits challenging the EIR and the Attorney General later joined the petitioners. The superior court found the EIR inadequate and issued a writ of mandate. The Court of Appeal affirmed, holding that, among other flaws, the EIR violated CEQA by failing to measure GHG impacts against the Executive Order.

The Supreme Court granted review on the following question: “Must the environmental impact report for a regional transportation plan include an analysis of the plan‘s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?”

Addressing this question, the Supreme Court held that the EIR was not required to include an express analysis of GHG impacts compared to the Executive Order’s goals. The court was careful, however, to limit its holding to the facts before it, explaining that it was holding “only that SANDAG, in analyzing greenhouse gas impacts at the time of the EIR, did not abuse its discretion by declining to adopt the Executive Order as a measure of significance or to discuss the Executive Order more than it did.” The court noted that this level of analysis would not “necessarily be sufficient going forward.”

Finding that an express consistency analysis was not required, the court disagreed that the EIR obscured the statutory framework or statewide goals, although it conceded that SANDAG could have presented the information in “clearer or more graphic” ways. Because the EIR presented anticipated GHG emissions in 2050 and discussed the long-term goals in the Executive Order, the court found that the information was “not difficult” for the public to obtain to conduct a consistency analysis. The court stressed that the inclusion of this information in responses to comments instead of the EIR itself was “not an infirmity” because it would be expected that members of the public “interested in the contents of an EIR will not neglect this section.”

The court acknowledged the parties’ understanding that an executive order does not carry the “force of a legal mandate” when preparing a CEQA document but did not discuss this issue further. Nor did the Court prescribe this specific outcome for other agencies but instead repeatedly asserted the “narrowness” of its ruling and that planning agencies must ensure their analysis keeps up with “evolving scientific knowledge and state regulatory schemes.” In reversing the Court of Appeal’s judgement, the court ruled only that the 2011 analysis of GHGs emissions did not render the EIR inadequate. The court declined to express an opinion on other deficiencies identified by the trial court and Court of Appeal.

In a comprehensive dissent that included a detailed discussion of the legislative framework, Justice Cuéllar maintained that SANDAG’s EIR lacked “good faith reasoned analysis” because it obscured important GHG information. Justice Cuéllar pointed to the “relative clarity of statewide statutory goals” as reasoning why SANDAG did not have the discretion to downplay the GHG consequences of its RTP. Further, he expressed concern that the majority’s ruling could allow other regional planning agencies to “shirk their responsibilities.”

Remy Moose Manley (Whitman F. Manley, Laura M. Harris, and Christopher L. Stiles) submitted an Amicus Curiae brief in support of SANDAG.

[Casey Shorrock Smith]

In Friends of Outlet Creek v. Mendocino County Air Quality Management District (2017) 11 Cal.App.5th 1235, the First District Court of Appeal held that a responsible agency air quality management district may be sued under CEQA, but such suit must be limited to the agency’s specific discretionary action and may not challenge prior lead agency approvals. In addition, the court held that such an action must be brought as an administrative mandamus proceeding under Code of Civil Procedure section 1094.5.

In 2014, Grist Creek Aggregates, LLC (Grist Creek), initiated a process with Mendocino County to resume aggregate and asphalt production after years of reduced operation due to market conditions. The site had been used for aggregate and asphalt production since 1972. In 2009, the county updated its general plan and certified an EIR to, among other things, change the land use designation at the site from rangeland to industrial, and in 2010, the county rezoned the site to conform to the updated land use designations. No legal challenges were brought against the county’s actions.

In response to Grist Creek’s request to resume aggregate and asphalt production, the county Board of Supervisors issued a March 2015 resolution declaring that the resumption of asphalt production was neither a new, nor a changed, industrial use, and therefore it was allowed under a previously issued permit. The county issued a notice of exemption and Friends of Outlet Creek (Friends) filed a lawsuit challenging the county’s determination. Grist Creek then applied to the Mendocino County Air Quality Management District for an Authority to Construct (ATC), which the district issued in June of 2015 based on the county’s previous actions as the CEQA lead agency.

After its administrative appeal was denied, Friends filed a lawsuit against the district alleging that the district failed to comply with CEQA because it did not conduct a separate environmental analysis, and alleging the district did not follow its own regulations. The district and Grist Creek filed demurrers asserting that Friends could not sue the district directly under CEQA, and instead could only sue under Health and Safety Code section 40864. The trial court sustained the demurrers and Friends appealed.

The Court of Appeal cited to several cases to support its determination that the district could be sued under CEQA, including those that addressed challenges to individual permit decisions. In addition, the court pointed out that no court has ever declared that Health and Safety Code section 40864 is the only statute that can be invoked in challenging an action by an air quality management district. Therefore, the court held, Friends could sue directly under CEQA and was not required to sue under Health and Safety Code section 40864.

The court then turned to the scope of the CEQA challenge. Relying on the fact that the district’s role was limited to issuing the ATC, the court found that Friends could not challenge any of the county’s land use decisions through this litigation. The court further determined that, because a hearing was required, evidence was taken, and the administrative agency had discretion in determining the facts, the lawsuit must be brought as an administrative mandamus proceeding under Code of Civil Procedure section 1094.5. Thus, the challenge was limited to the record from the administrative appeal and matters judicially noticeable.

For information on Grist Creek’s action against the trial court seeking to vacate its demurrer rulings, see: http://www.rmmenvirolaw.com/2017/07/air-district-boards-tie-vote-on-authority-to-construct-permit-is-effectively-a-decision-not-to-revoke-it-which-is-reviewable-for-prejudicial-abuse-of-discretion/.

[Casey Shorrock Smith]

On November 2, 2016, the Ninth Circuit Court of Appeals upheld the Environmental Impact Statement (EIS) for the Tahoe Regional Planning Agency’s 2012 Regional Plan Update (RPU).

TRPA adopted the RPU as the general governing document for development and environmental protection in the Lake Tahoe region. The RPU generally restricts future development to areas that are already developed, and sets forth the amount of further development that will be permitted in those areas. The precise nature of that development is to be determined in “Area Plans” to be adopted later. Before approving the RPU, TRPA prepared an extensive EIS examining the potential environmental effects of the update.

Shortly after TRPA approved the RPU, the plaintiffs filed a lawsuit in the U.S. District Court alleging that TRPA’s actions violated the Lake Tahoe Regional Planning Compact in various respects. Their principal contentions were that the RPU failed to adequately address the localized effects of runoff created by the amount of development permitted, and that the RPU improperly assumed that best management practices (BMPs) could be utilized to achieve the RPU’s planning goals, despite TRPA’s poor record of enforcing BMPs in the past. The district court granted summary judgment in favor of TRPA. The Ninth Circuit affirmed.

The Ninth Circuit held that the EIS adequately addressed potential impacts regarding water quality, soil conservation, and cumulative effects on biological resources. Applying a standard similar to the one used for evaluating environmental impact statements under NEPA, the court held that the RPU and EIS took the requisite “hard look” at these resource areas, despite that fact that the analysis was generally intended to be region-wide with additional site-specific review occurring later during the approval of Area Plans.

In finding that the EIS adequately addressed the localized effects of runoff, the court upheld TRPA’s reliance on the Total Maximum Daily Load (TMDL) model, which aims to reduce the total flow of certain pollutants into the lake, and noted that the EIS’s storm-water modeling simulation addressed localized effects of runoff near concentrated development areas. The court concluded that the EIS adequately explained its basis for finding that concentrating development in community centers would not result in more concentrated runoff or other water quality impacts.

Regarding soil conservation, the court held that TRPA was not required to perform site-specific analysis of impacts because evaluation of coverage at a more localized scale would occur, as part of the Area Plan process, prior to development taking place.

Finally, upholding the EIS’s reliance on BMPs despite historically less-than-perfect enforcement by TRPA, the court noted that the EIS explained the steps that had been taken to improve enforcement. For example, TRPA’s BMP handbook acknowledged past failures in maintenance and incorporated that experience into updated BMP guidelines. The court also noted that the RPU provided incentives for redevelopment, and thus, was designed to move properties from TRPA’s retrofit program into its mandatory permitting program for new development, which requires BMP maintenance plans and logs. Thus, the court concluded that TRPA reasonably relied on data in the record in concluding that the RPU would have a less-than-significant effect on water quality.

The Supreme Court issued its opinion in California Building Industry Association v. Bay Area Air Quality Management District (2015) __Cal.4th__ (Case No. S213478). In one of the most closely-watched CEQA cases of the year, the Court addressed whether CEQA requires analysis of the existing environment’s impact on the residents and users of a proposed project.

The case involved a challenge to BAAQMD’s adoption of new CEQA thresholds of significance for air pollutants, including Toxic Air Contaminant (TAC) “receptor thresholds” ­– thresholds for “new receptors” consisting of residents and workers who will be brought to the area as a result of a proposed project – and thresholds for GHGs and PM2.5. The thresholds were published in the District’s 2010 CEQA Air Quality Guidelines. CBIA challenged the adoption of the thresholds on various CEQA grounds. Relevant here, CBIA claimed the receptor thresholds were invalid because CEQA does not require analysis of the impacts that existing hazardous conditions will have on a new project’s occupants.

The Court of Appeal narrowly determined that the receptor thresholds have valid applications irrespective of whether CEQA requires an analysis of how existing environmental conditions impact a project‘s future residents or users, and therefore were “not invalid on their face.”

The Supreme Court granted review, but limited the scope of review to the following issue: Under what circumstances, if any, does CEQA require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?

In answering this question, the Court held that “agencies subject to CEQA generally are not required to analyze the impact of existing environmental conditions on a project‘s future users or residents. But when a proposed project risks exacerbating those environmental hazards or conditions that already exist, an agency must analyze the potential impact of such hazards on future residents or users. In those specific instances, it is the project’s impact on the environment ­– and not the environment’s impact on the project – that compels an evaluation of how future residents or users could be affected by exacerbated conditions.”

Based on its holding, the Court found CEQA Guidelines section 15126.2, subdivision (a), valid only in part. The Court noted that CEQA Guidelines section 15126.2, subdivision (a), indicates that CEQA generally requires an evaluation of environmental conditions and hazards existing on a proposed project site if such conditions and hazards may cause substantial adverse impacts to future residents or users of the project. Finding that CEQA calls upon an agency to evaluate existing conditions in order to assess whether a project could exacerbate hazards that are already present, the Court held that most of subdivision (a) is valid. The Court, however, found that the following two sentences were clearly erroneous and unauthorized by CEQA: “[A]n EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there.” The Court therefore, invalidated these two sentences of the Guidelines.

After marching through relevant CEQA sections, the CEQA Guidelines, and case law, the Court concluded that its holding was consistent with the language and purposes of CEQA. The Court also concluded that its decision was not inconsistent with Court of Appeals cases on this issue, including Baird and Ballona Wetlands, among others.

The issue of whether CEQA requires analysis of the environment on a project is sometimes referred to as “CEQA-in-reverse.” The Supreme Court took issue with that characterization, finding it “misleading and inapt.” The Court explained that “[b]ecause CEQA does sometimes require analysis of the effect of existing conditions on a project‘s future residents or users, such analysis is not the reverse of what CEQA mandates.”

The Supreme Court remanded the case to the Court of Appeal for reconsideration in light of the Court’s holding.

The California Supreme Court issued its highly-anticipated decision in Center for Biological Diversity v. California Department of Fish and Wildlife. The case, which involved a challenge to an EIR prepared for the Newhall Ranch development project in Southern California, provided the first opportunity for the Supreme Court to weigh in on the analysis of greenhouse gas emissions and climate change impacts under CEQA. The Court also addressed important issues regarding mitigation for protected species and exhaustion of administrative remedies.

Background

In 2010, the California Department of Fish and Wildlife (DFW) and the United States Army Corps of Engineers (the Corps) prepared a joint EIS/EIR for two natural resource plans related to Newhall Ranch ­– a proposed land development that included over 20,000 dwelling units as well as commercial and business uses, schools, golf courses, parks and other community facilities. Of relevance in the case, the EIR found that the project’s emissions of greenhouse gases would have a less-than-significant impact on the global climate, and that the project could significantly impact the unarmored threespine stickleback but adopted mitigation measures would avoid or substantially lessen that impact.

Supreme Court Decision

The Supreme Court addressed three issues: (1) Does the EIR validly determine the development’s greenhouse gas emission would not significantly impact the environment? (2) Are mitigation measures adopted for protection of a freshwater fish, the unarmored threespine stickleback, improper because they involve a prohibited take of the fully-protected species? (3) Were petitioners’ comments on two other issues submitted too late in the environmental review process to exhaust their administrative remedies under Public Resources Code section 21177?

Greenhouse Gas Impacts

In analyzing greenhouse gas emissions, the EIR explained that the project would cause an annual emissions increase of 269,053 MTCO2E. The EIR noted that while the increase is “an obvious change to existing, on-site conditions,” the global nature of climate change and the “absence of scientific and factual information” on the significance of particular amounts of GHG emissions make the change insufficient to support a significance determination. The EIR accordingly went on to consider whether the project’s emissions would impede the state’s compliance with the statutory emissions reduction mandate established by AB 32.

The EIR’s method for determining whether the project would impede achievement of AB 32’s goals was modeled on the Air Resources Board’s use, in its Scoping Plan, of comparison to a “business-as-usual” projection as a measure of the emission reductions needed to meet the 2020 goal (determined to be a reduction of 29-percent from business as usual). Because the EIR’s estimate of actual annual project emissions was 31 percent below its business-as-usual estimate, exceeding the Air Board’s determination of a 29 percent reduction from business as usual needed statewide, the EIR concluded that the project’s GHG emissions would not impede achievement of AB 32’s goals and were therefore less than significant for CEQA purposes.

The Court first addressed whether consistency with AB 32’s emissions-reduction goals was an appropriate significance threshold for greenhouse gas emissions. In upholding the use of the threshold, the Court noted that, to the extent a project incorporates efficiency and conservation measures sufficient to contribute its portion of the overall greenhouse gas reductions necessary, one can reasonably argue that the project‘s impact is not cumulatively considerable, because it is helping to solve the cumulative problem of greenhouse gas emissions as envisioned by California law. Under these circumstances, the court explained, evaluating the significance of a residential or mixed use project‘s greenhouse gas emissions by their effect on the state‘s efforts to meet its long-term goals makes at least as much sense as measuring them against an absolute numerical threshold.

Although the Court determined that the EIR employed a legally permissible threshold of significance, it held that the EIR’s finding that the project’s emissions would not be significant under that threshold was “not supported by a reasoned explanation based on substantial evidence.”

The Court explained that DFW erred in assuming that because the Scoping Plan concluded that the State of California, as a whole, had to reduce its GHG emissions by 29 percent compared with the hypothetical “business-as-usual” scenario, the project would not have significant GHG-related impacts if the project itself also reduced its own GHG emissions by 29 percent compared with what would have occurred under a business-as-usual scenario. The Court explained that “the EIR’s deficiency stems from taking a quantitative comparison method developed by the Scoping Plan as a measure of the greenhouse gas emissions reduction effort required by the state as a whole, and attempting to use that method, without consideration of any changes or adjustments, for a purpose very different from its original design: To measure the efficiency and conservation measures incorporated in a specific land use development proposed for a specific location.” In other words, the EIR simply assumed that the level of effort required in one context, a 29-percent reduction from business as usual statewide, would suffice in the other, a specific land use development. The Court held there was no substantial evidence to support that assumption. Therefore, the EIR’s reliance on the project-specific reduction in GHG emissions compared to the business as usual scenario was not sufficient to support the conclusion that GHG impacts would be less than significant.

Although the Court found DFW’s record to be inadequate to support the conclusion that GHG-related impacts were less than significant, the Court did provide some guidance regarding potential alternative approaches to GHG impact assessment that other agencies around the State might follow going forward in the future.

Mitigation for Fully Protected Species

Finding that the project could result in significant impacts to special status wildlife and plant species, DFW adopted numerous mitigation measures for biological impacts. Two mitigation measures provided for collection and relocation of special status fish, including the fully protected unarmored threespine stickleback, during construction in, or diversion of, the Santa Clara River.

The Court held that specifying these actions as mitigation in an EIR violated the Fish and Game Code section 5515’s prohibition on authorizing the taking or possession of fully protected fish in mitigation of project impacts under CEQA. The Court explained that DFW may conduct or authorize capture and relocation of the stickleback as a conservation measure to protect the fish and aid in its recovery, but the agency may not rely in a CEQA document on the prospect of capture and relocation as mitigating a project’s adverse impacts.

Exhaustion of Administrative Remedies

The Court of Appeal held two of the petitioners’ challenges to the EIR, regarding impacts on Native American cultural resources and on steelhead smolt, were not preserved because they were not brought to DFW’s attention until after the public comment period on the Draft EIR had closed.

The Supreme Court disagreed. It held that the petitioners adequately exhausted their administrative remedies for these issues because the issues were presented to DFW during the public review period provided by the Corps pursuant to NEPA, which, under the circumstances, constituted a “public comment period” for purposes of CEQA. The Court was careful to note that it need not decide whether every federally mandated comment period on a final combined EIS/EIR also constitutes a CEQA comment period for purposes of section 21177, subdivision (a). The Court explained that because DFW independently reviewed petitioners’ comments on the final EIS/EIR, contributed its expertise to the drafting of responses and revisions based on those comments, and included those responses and revisions in the final version of the EIR it certified and relied on in making its approval decision, the purpose of the exhaustion requirement had been served. Therefore, the Court concluded that the disputed comments were timely under section 21177, subdivision (a) because they were submitted during a public comment period provided by CEQA.

Concurring and Dissenting Opinions

Justice Corrigan issued a concurring and dissenting opinion. She agreed with the majority that the mitigation measures described in the EIR for the unarmored threespine stickleback constitute a taking prohibited by the Fish and Game Code. She also agreed that the methodology used to assess the significance of GHG emissions was consistent with CEQA. She disagreed, however, with the portion of the majority opinion finding that the GHG analysis was not supported by substantial evidence. According the Justice Corrigan, the level of detail the majority demanded from the EIR was contrary to both the deferential standard of review and the majority’s approval of the methodology used to assess GHG significance.

Justice Chin issued a strongly worded dissenting opinion. He agreed that the threshold of significance used in the EIR to assess GHG impacts was appropriate but disagreed with the majority‘s conclusion that the EIR did not adequately explain why a projected 31 percent reduction in GHG emissions is consistent with legally mandated reduction goals in AB 32. Justice Chin also disagreed with the majority‘s holding that the proposal to move the unarmored threespine stickleback fish out of harm‘s way was a taking under the Fish and Game Code, and that, therefore, the EIR could not call the program a mitigation measure.

The First District Court of Appeal upheld the lower court’s determination in part and reversed in part, finding the State Lands Commission’s EIR for a sand mining project adequate, but holding that the Commission did not comply with the public trust doctrine when it granted mineral extraction leases. (S.F. Baykeeper, Inc. v. Cal. State Lands Commission (November 18, 2015) ___Cal.App.4th ___, Case No. A142449.)

In 2014, the State Lands Commission approved the San Francisco Bay and Delta Sand Mining Project, which granted 10-year extensions of mineral extraction leases for dredge mining for marine aggregate sand under the San Francisco Bay. The lease parcels are all on sovereign lands owned by the State of California and are subject to the public trust.

The Commission published a Notice of Preparation in 2007 and released a draft EIR in 2010. Then, in 2011, using a new five-year average baseline against which the EIR measured environmental impacts, the Commission recirculated a revised draft EIR. In 2012, the Commission published a final EIR and a statement of overriding considerations, and approved a reduced project alternative. San Francisco Baykeeper, Inc. filed a petition for writ of mandate alleging that the Commission failed to comply with CEQA and violated the common law public trust doctrine.

Baykeeper argued that the Commission’s use of a five-year average baseline was improper and that the EIR should have used data from 2007, the year of publication of the NOP. The court, however, held that substantial evidence in the record, including data and statistics showing a significant decrease in production of construction aggregate in 2007, supported the baseline in the EIR.

The court also rejected Baykeeper’s arguments with respect to cumulative impacts from sand mining on erosion. The EIR determined that the project would have less-than-significant impacts because sand mining is not likely to cause measurable sediment depletion outside of mining areas. The draft EIR recognized studies suggesting that sand mining in the Bay contributes to erosion on beaches, but found no direct or empirical causal link. But after receiving numerous comments on this issue, the Commission conducted further analysis including new modeling and a review of two additional scientific articles. Again, the Commission found that there was no causal link, and determined in the final EIR that the project would have less than significant impacts on erosion. The court upheld this determination, rejecting Baykeeper’s argument that the Commission improperly used a ratio theory, as that was only one component of the analysis in the EIR and simply reinforced the Commission’s previous conclusions. Further, the court found that the new studies and analysis did not require recirculation because they did not change any of the substantive conclusions in the DEIR and did not significantly alter the main points of disagreement.

The court then turned to the Commission’s interpretation of CEQA Guidelines appendix G thresholds regarding mineral resources. The Commission interpreted the thresholds to question whether the project would interfere with important mineral resource deposit areas that should be conserved for purposes of extraction and not lost to an incompatible use, whereas Baykeeper posited that the EIR should have analyzed whether the project would deplete the mineral resource. The court pointed out that appendix G thresholds are only suggested and lead agencies have the discretion to develop their own thresholds. In addition, the court said that the Commission’s interpretation was supported by state policies regarding mineral extraction, and Baykeeper failed to provide any authority supporting a different interpretation.

Baykeeper also argued, and the court agreed, that the Commission did not properly provide notice to, nor properly consult with, the Coastal Commission or the City of San Francisco. The court emphasized that such a violation “requires reversal only upon proof of prejudice,” and found that Baykeeper failed to identify any information that would have been provided by these agencies but was omitted from environmental review as a result of the Commission’s notice and consultation violations. In fact, Baykeeper did request that the court take judicial notice of a 2015 letter regarding the project, but the court declined to do so because this did not constitute material information that was actually available when the Commission conducted its review. According to the court, because Baykeeper failed to demonstrate that pertinent information was omitted from the review process, the court could not find that the violation of notice and consultation requirements was prejudicial.

Finally, the court turned to the public trust doctrine and concluded that the Commission had an affirmative duty to consider whether the granting of private sand mining leases constitutes a permissible use under the doctrine, and the Commission failed to comply with that duty. The parties agreed that the project authorized the private use of land that is protected by the public trust, and that the Commission did not make any findings pursuant to the doctrine. The court rejected a series of arguments from the Commission, finding in part that it does not have “unfettered discretion to prefer sand mining as a preauthorized public trust use of the lease parcels.” Further, the court held that conducting a CEQA review alone does not fulfill obligations of the public trust doctrine. Thus, the court held that the Commission failed to conduct the required public trust analysis and remanded accordingly.

City of Irvine v. County of Orange (July 6, 2015) __ Cal.App.4th __, Case No. G049527

The court upheld a Supplemental EIR prepared by the County of Orange for a jail upgrade project over a decade after the original EIR had been certified. The court found the project was not substantially different than the project analyzed in the original EIR and that the Supplemental EIR adequately addressed the minor project changes and changed circumstances. And after a hearty dissertation on CEQA’s responses to comments requirement, the court determined that the county’s responses to comments on the Supplemental EIR were adequate.

The county prepared an EIR in the 1990s for the expansion of the James A. Musick Jail Facility. The City of Irvine challenged that EIR and lost; however, project construction was delayed indefinitely by a lack of funding. In 2012, the county decided to move forward with the project and prepared a Supplemental EIR to account for project changes and changed circumstances. Irvine filed a petition challenging the Supplemental EIR on various CEQA grounds. The trial court rejected the challenge and Irvine appealed.

On appeal, Irvine first claimed that the County was required to prepare a “Subsequent EIR” rather than a “Supplemental EIR.” Regarding the Supplemental EIR, Irvine’s contentions focused primarily on traffic impacts during construction and the loss of agricultural land. Irvine’s main argument, however, was that the county’s responses to Irvine’s comments on the Supplemental EIR were inadequate. The court rejected each of these claims in turn.

Irvine’s first claim was that the County was obligated to prepare a Subsequent EIR as opposed to a Supplemental EIR for their analysis of the impacts of the expansion. The court rejected this claim, explaining that courts should look to the substance of the EIR, not its nominal title.

Irvine’s next argument concerned the Supplemental EIR’s analysis of traffic impacts during project construction. Due to delays, there were discrepancies in the county’s construction timeline. Irvine claimed that these discrepancies amounted to an unstable project description that prevented the Supplemental EIR from adequately assessing project impacts. The court disagreed, finding that the project description was distinct from the interim impacts of construction. Specifically, Irvine claimed the county had failed to provide a stable project description because it could not account for the traffic impacts caused by construction in a given year. The court found that CEQA does not require a continuous update of traffic impacts as a result of construction delays and that, regardless of the delay, the impacts would not be substantially different from those disclosed in the Supplemental EIR even if traffic data was updated, and therefore, there was no prejudice.

The third claim concerned mitigation for the loss of agricultural land that would occur as a result of the expansion. The Supplemental EIR discussed seven possible mitigation measures, but none were found to be feasible. Irvine challenged the county’s feasibility findings for three of the measures: (1) the purchase of conservation easements on existing agricultural land to prevent it from being used in the future for nonagricultural purposes, (2) a transfer of development rights program, and (3) a “right to farm” ordinance.

The court held that the county’s findings rejecting these measures as infeasible were supported by substantial evidence. Conservation easements were found infeasible because there was no additional land for agriculture in the county that would be profitable and putting a conservation easement for agricultural use on land that is already used for agriculture would do nothing to mitigate the loss of other agricultural lands. The court also noted that the county’s zoning laws did not support the feasibility of conservation easements. Transfers of development rights were found to be even less feasible because the county did not have land laying fallow for which they could transfer rights in the preservation of agricultural land use. Lastly, the court concluded that a right to farm ordinance was the least viable option of all. The Supplemental EIR recognized that the conversion of current non-agricultural land to agricultural land would itself entail significant environmental effects, including nuisance suits. Beyond that, the court noted, a right-to-farm ordinance is meaningless where no land owner wants to farm. The court held that it is a reasonable inference that no one would want to convert land that is currently non-agricultural and put it to agricultural use even if they have the ostensible legal right to do so.

Lastly, the court addressed Irvine’s claim that the county failed to adequately respond to comments. The court began with a thorough discussion of CEQA’s responses to comment requirement and a detailed assessment of the state of case law on the subject. The court noted several oft-repeated principles by which courts may evaluate the sufficiency of responses, including (1) a general comment can be adequately met with a general response; (2) responses need not be exhaustive; and (3) the sufficiency of responses should be “viewed in light of what is reasonably feasible.” From the cases, the court divined a few more basic standards for the adequacy of responses: (1) when a comment raises a “significant” environmental issue, there must be some genuine confrontation with the issue, it can’t be swept under the rug; (2) responses that leave big gaps in the analysis of environmental impacts are obviously inadequate; (3) comments that bring some new issue to the table need genuine confrontation; and (4) comments that are only objections to the merits of the project itself may be addressed with cursory responses. Based on these guiding principles, the court found that the county had adequately responded to each of Irvine’s comments that merited a response.