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California Supreme Court Establishes CEQA Rules for EIR’s Discussion of Health Effects

In an important CEQA case, the California Supreme Court ruled that courts reviewing claims that an Environmental Impact Report (EIR) inadequately discusses environmental impacts must determine whether the EIR “includes sufficient detail” to support informed decisionmaking and public participation. The court also held an EIR must make “a reasonable effort to substantively connect a project’s air quality impacts to likely health consequences.” The decision, Sierra Club v. County of Fresno, Cal. Supreme Court Case No. S219783 (Dec. 24, 2018), makes clear that EIRs must contain clear and detailed discussion of impact significance determinations, and in particular must explain the nature and magnitude of significant impacts.

Court Clarifies Standard of Review

In Sierra Club v. County of Fresno, challengers to a mixed residential/commercial development project asserted that the County’s EIR improperly failed to include analysis that “correlated” the project’s air pollutant emissions to its impacts on human health. In addressing that claim, the Court first clarified the CEQA “standard of review.” The Court explained that, for challenges to an EIR’s factual determinations, such as whether an impact exceeds the threshold of significance, a court applies the deferential “substantial evidence” test, examining whether the EIR’s determination is supported by substantial evidence without weighing the evidence to determine who has the better argument. By contrast, for claims that the agency preparing the EIR “failed to proceed in a manner required by law,” a court applies the non-deferential “independent judgment” or “de novo” standard.

Court Announces Three Principles Governing Judicial Review

The Court noted that, “when the issue is whether an EIR’s discussion of environmental impacts is adequate,” it is not always clear which standard of judicial review applies. The Court held that an EIR’s discussion of impacts “may implicate a factual question that makes substantial evidence review appropriate.” On the other hand, the Court further held that a claim that an EIR’s description of an environmental impact lacks analysis or omits discussing the magnitude of the impact “is not a substantial evidence question.” Based on this distinction, the Court announced three principles to govern judicial review of EIRs:

  1. An agency has considerable discretion to decide the manner of the discussion of potentially significant effects in an EIR.
  2. However, a reviewing court must determine whether the discussion of a potentially significant effect is sufficient or insufficient, i.e., whether the EIR comports with its intended function of including “detail sufficient to enable those who did not participate in its preparation to understand and consider meaningfully the issues raised by the proposed project.”
  3. The determination whether a discussion is sufficient is not solely a matter of discerning whether there is substantial evidence to support the agency’s factual conclusions.

Court Applies Principles Governing Judicial Review

Applying those principles, the Court held that the EIR failed to adequately inform the public about the health effects of the project’s significant air pollution impacts. The Court noted that the EIR determined the project’s emissions of several pollutants would be a significant and unavoidable environmental impact, and that the EIR also contained a discussion, “general in nature,” about the health effects associated with various project-related pollutants. However, because the EIR’s discussion of health effects failed to “indicate the concentrations at which such pollutants would trigger the identified symptoms,” the Court found the EIR’s discussion inadequate, and held that “a sufficient discussion of impacts requires not merely a determination of whether an impact is significant, but some effort to explain the nature and magnitude of the impact.” The Court found the EIR’s discussion omitted material necessary for informed decision-making and to enable the public to understand and meaningfully consider the impacts of the project.

The Court rejected arguments from the project developer that additional information connecting emissions and health effects could not be provided, given the current state of environmental science, noting that support for those arguments appeared only in court briefing. The Court held that “if it is not scientifically possible to do more than has already been done to connect air quality effects with potential human health impacts, the EIR itself must explain why, 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.”

Court Addresses Mitigation Challenges

The Court also addressed several claims directed against the EIR’s mitigation for air quality impacts. The Court rejected the EIR’s determination that mitigation measures would “substantially” reduce air quality impacts (without reducing them to a less-than-significant level), holding that the EIR contained no facts or analysis to support the “substantial” reduction characterization. Therefore, the EIR needed to be revised to provide evidence to show the level of pollutant reduction and how that would reduce the adverse health effect. However, the Court rejected a claim that a mitigation measure may not reserve an option to substitute, for pollution control technologies identified in the measure, equally or more effective pollution control technologies that may become available in the future. The Court also made clear that a mitigation measure is not invalid simply because the EIR determines it is not capable of fully reducing impacts to a less-than-significant level.