“The life of the law has not been logic: it has been experience.” – Oliver Wendell Holmes, Jr., The Common Law (1881)
“CEQA discourse has become increasingly abstract, almost medieval in its scholasticism.” – former California Governor Edmund G. (“Jerry”) Brown, Jr.
by Arthur F. Coon
On November 24, 2020, the Fifth District Court of Appeal filed its partially published opinion in the latest installment of the long-running CEQA litigation over Fresno County’s approval of the Friant Ranch project. Sierra Club v. County of Fresno (Friant Ranch, L.P., Real Party in Interest) (2020) ____ Cal.App.5th ____. The litigation involves a 942-acre mixed-use development project (2500 residential units, 250,000 square feet of commercial space, 460 acres of open space) for which the Notice of Preparation (NOP) of the EIR was issued in 2007; it has generated an earlier appellate opinion (see my 6/16/14 post here) and a Supreme Court opinion (see my 12/28/18 post here) addressing important standard of review issues centered on the adequacy of the project EIR’s air quality impacts discussion.
The Court of Appeal’s most recent 34-page opinion (19 pages of which are unpublished) affirms the trial court’s 2019 judgment issuing a writ of mandate following the post-Supreme Court decision remands from the Supreme Court and Court of Appeal, respectively. The crux of the published decision is its rejection – on two alternative grounds – of the of the project developer’s appeal and arguments that the trial court erred by not ordering a “limited writ” remedy, i.e., one that included a “partial decertification” of the project EIR and left “severable” project approvals in place pending full CEQA compliance. In this respect, the Court held: (1) as a matter of law CEQA does not allow partial decertification of an EIR as a remedy because its statutory language requires a public agency to certify “the completion of” the EIR (Pub. Resources Code, §§ 21100(a), 21151(a)) and “an EIR is either completed in compliance with CEQA or it is not so completed” (citing LandValue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675, 682 (“LandValue 77”); and (2) in any event, even if CEQA allows a partial decertification remedy, such a remedy would be inappropriate in this case as a matter of fact because the necessary severance findings under Public Resources Code § 21168.9(b) cannot appropriately be made. Because the Fifth District’s analysis supporting its conclusion that severance findings could not be made – and thus supporting its alternative holding – was located in the unpublished part of its opinion, it seems the main reason for it to publish its opinion was to “double down” on its much-criticized LandValue 77 holding that partial EIR decertification is legally unavailable as CEQA remedy, thus underscoring its disagreement with the Second and Fourth Districts on this issue.
The Fifth District’s holding following its earlier LandValue 77 decision is based on reasoning that CEQA requires agencies to “certify the completion of[] an environmental impact report” for projects that may have a significant environmental impact (Pub. Resources Code, §§ 21100(a), 21151(a)), and that prior to project approval agencies must “certify . . . [that] [t]he Final EIR has been completed in compliance with CEQA.” (CEQA Guidelines, § 15090(a)(1); see id. at § 15090(a)(2), (3) [also requiring lead agency to certify final EIR was presented to, reviewed and considered by decision-making body, and that FEIR reflects lead agency’s independent judgment and analysis].) LandValue 77’s statutory interpretation led it to “reject the idea of partial certification” by a lead agency – and, apparently by extension, the remedy of partial decertification by a court – because “the concept of completeness is not compatible with partial certification. In...
