Sierra Club v. County of Fresno

Why it matters: The court refined its previous test for air quality impacts analysis under CEQA, and required recirculation of an EIR due to its failure to specifically analyze the impacts on human health resulting from the change in air quality due to the project’s air emissions. Compliance with the court’s new correlation requirement could be onerous and expensive; and because it sets a new standard, it could provide new avenues for litigation.

Facts: The County of Fresno certified an EIR prepared for a proposed master-planned “active adult” community for persons aged 55 or older in north central Fresno County, known as the Friant Ranch project. The EIR’s air quality section accurately identified the existing poor air quality environmental setting in Fresno County, calculated the annual tons of PM10, reactive organic gases (ROG), and nitrogen oxides (NOx) that the project would emit at build-out, and generally described the adverse health effects associated with each of these pollutants. The air quality analysis concluded that, even with the EIR’s proposed air quality mitigation, the project’s emissions would exceed the County’s air quality thresholds, and would therefore create an unavoidable significant air quality impact. The County approved the project and certified the EIR with a statement of overriding consideration. The Superior Court denied petitioner’s CEQA and general plan inconsistency claims, and petitioner appealed.

The Decision: The Court of Appeal for the Fifth Appellate District looked to its prior decision in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, which found that two Walmart EIRs failed to adequately disclose the health consequences of air pollution generated by the projects. The court found that, in contrast to the Walmart EIRs, the Friant Ranch EIR adequately identified the air quality impacts of the project, by providing the type and quantity of the generated pollutants, and summarizing the potential health impacts of each pollutant. However, the Friant Ranch EIR failed to adequately analyze the identified air quality impacts, as required by the Bakersfield Citizens holding. Specifically, the court found that the EIR failed to provide any specific correlation between the project’s emissions and the likely resulting impacts on human health. To illustrate the type of correlation required, the court provided an “extreme” example of a reader of the EIR not knowing whether the project’s emissions would require people with respiratory difficulties to wear a filtering device when going outdoors, or if the emissions would not amount to any more than a “drop in the bucket” to those breathing the air containing the additional pollutants. Due to its failure to provide any such correlation, the EIR’s air quality analysis was deemed inadequate. However, the court did confirm that the County had discretion in choosing what specific type of analysis to utilize in analyzing health impacts.

In addition to the EIR’s inadequate analysis of air quality impacts, the court also found flaws with its proposed air quality mitigation. Specifically, the EIR provided a single air quality mitigation measure, which consisted of a dozen separate provisions addressing nonresidential development, reduction of residential energy consumption, promotion of bicycle usage, and transportation emissions. Petitioner claimed that a number of the nonresidential development mitigation provisions (such as tree planting guidelines, installation of multiple power outlets at truck loading docks, and the recommended installation of HVAC units with catalyst systems, to be required “where feasible and appropriate”) violated CEQA because they were mere “amorphous guidelines” that were unenforceable. The court agreed, finding that neither the mitigation measure itself nor any other part of the EIR clarified how the measure was to be made enforceable, causing uncertainty as to “who is to do what and when that action must be taken.” In addition, although the EIR elsewhere restates this same mitigation measure without the “where feasible and appropriate” limitation, the court found that this internal inconsistency added to the measure’s vagueness problem, because this internal inconsistency could potentially be relied upon by the County to justify not requiring any of the measure’s provision.

In another blow to the EIR’s air quality analysis, the court found that there was no substantial evidence supporting the EIR’s conclusion that the single proposed air quality mitigation measure would “substantially reduce air quality impacts related to human activity” within the project area. The court stated that CEQA’s disclosure principles prohibit such a “bare conclusion,” and instead require such a statement to be supported by facts or analysis. Since the EIR lacked any quantitative analysis showing this statement to be true (or, alternatively, failed to disclose any nonquantitative basis for this claim), the court found it to be an impermissible unsupported conclusion, which on remand should either be explained or deleted.

Finally, the court held that the EIR improperly deferred the formulation of the project’s air quality mitigation measures, because the EIR stated that the County and the San Joaquin Valley Air Pollution Control District could “substitute different air pollution control measures for individual projects, that are equally effective or superior to those proposed.” However, for the majority of the air quality mitigation provisions, the EIR did not provide any objective performance standards for determining whether a future substitute measure would be as effective as (or superior to) any of the originally proposed measures. Therefore, the EIR’s provision for the future substitution of mitigation measures, coupled with its lack of specific performance standards, was held to violate CEQA.

The County and the developer could take small comfort in the fact that the court rejected petitioner’s other CEQA-based challenge regarding the project’s wastewater impacts, finding that the EIR adequately disclosed information relating to the amount of wastewater to be generated by the project, and how that wastewater would be disposed of. The court also rejected petitioner’s claim that the project violated California’s planning and zoning law due to alleged inconsistencies with the County’s general plan policies, finding that the County had properly exercised its discretion in approving the project’s general plan amendment to change the project site’s former agricultural land use designation.

A petition for review has been submitted to the California Supreme Court, which, if granted, would take this decision “off the books” pending the Supreme Court’s decision. In the meantime, however, developers and local agencies should seek to follow the requirements set forth in this decision for performing adequate air quality impact analysis and requiring associated mitigation measures.

Practice Pointers: Some suggested responses to this decision are the following:

• Provide specific analysis and correlation of a project’s air quality impacts and anticipated human health impacts. The court suggests one potential standard for this analysis in its decision: an EIR could provide an estimation of the number of days of nonattainment that would occur, if any, as a result of a project’s air quality impacts.
• Ensure that proposed mitigation measures are specific and enforceable – be clear who is to impose and enforce them, and do not limit applicability of the mitigation using a vague standard (i.e., “where feasible and appropriate”).
• If the EIR contemplates (or authorizes) the future substitution of mitigation measures, ensure that the currently proposed measures contain clear and objective performance standards that substitute mitigation measures can be measured against in order to determine their effectiveness.
• Provide adequate quantitative assessment supporting any claim that a mitigation measure will substantially reduce an identified impact.