Originally Published on Law360 - June 17, 2014.
In Sierra Club v. County of Fresno, a decision that will likely impact projects across California, the Court of Appeal for the Fifth Appellate District issued its second major California Environmental Quality Act ("CEQA") decision of the year, finding that when a project will result in pollutant emissions that exceed thresholds established by an air-quality district an environmental impact report must provide a detailed evaluation of the human health risks associated with each exceedance. As such, the decision arguably raises the bar with respect to a lead agency's obligation to analyze a project's air-quality impacts on human health.
The project at issue was a proposed master-planned community for persons age 55 or older located in north-central Fresno County. The project approved by the county included the construction of approximately 2,500 residential units and 250,000 square feet of commercial space on 482 acres. The EIR estimated that the project would emit approximately 117.38 tons per year of "PM10" (particulate matter up to 10 micrometers in size), 109.52 tons of reactive organic gases ("ROG") and 102.19 tons of nitrogen oxides ("NOx") at build out. These amounts were approximately seven-to-10 times greater than the respective thresholds established by the San Joaquin Valley Air Pollution Control District. While the EIR provided an air-quality mitigation measure, it concluded that the mitigation measure would not reduce the emissions below the thresholds and thus there was an unavoidable significant impact with respect to air quality. The county subsequently approved the project with a statement of overriding consideration.
While the Superior Court denied the Sierra Club's challenge to the EIR, the Court of Appeal reversed that decision, finding that: (1) the EIR failed to adequately analyze the project's air-quality impacts on human health, (2) the mitigation measures for the project's long-term air-quality impacts failed to comply with CEQA and (3) the conclusion that the mitigation measure would "substantially reduce" air-quality impacts was not supported by substantial evidence. While clearly a victory for the Sierra Club, the decision was not a clean sweep, as the Court of Appeal also rejected the Sierra Club's claims of alleged general plan inconsistency and inadequate discussion of wastewater disposal.
Health Impacts not Analyzed
As to the issue of health impacts, the Sierra Club argued that the EIR failed to adequately explain how the air pollutants emitted by the project would impact public health. The court agreed, finding that while the EIR adequately identified the air-quality impacts of the project, it did not adequately analyze them.
The court, after summarizing the EIR's discussion of the regulatory setting, physical setting and criteria of significance with respect to air-quality impacts, explained that with respect to the issue of identification, the EIR: (1) listed the types of pollutants that the project would produce; (2) identified the tons per year for each of the pollutants that the project was expected to generate; and (3) provided a general description of the potential health impacts associated with each pollutant.
After distinguishing the EIR's identification of air-quality impacts from those which were found inadequate in Bakersfield Citizens for Local Control v. City of Bakersfield, the court stated that the report had adequately identified the project's air-quality impacts, as it had "identified, in a general manner, the adverse health impacts that could result from the project's effect on air quality." However, the court also found that this discussion alone was not adequate for purposes of CEQA, because there was no analysis of the correlation between the project's emissions and human health impacts.
The court explained that while a reader could infer from the statements in the EIR that the project will generally "make air quality and human health worse," more information must be provided so that a reader can adequately "understand" the adverse health impact. The court, providing an admittedly "extreme example," stated: The information provided does not enable a reader to determine whether the 100-plus tons per year of PM10, ROG and NOx will require people with respiratory difficulties to wear filtering devices when they go outdoors in the project area or ... in contrast, will be no more than a drop in the bucket to those people breathing the air containing the additional pollutants.
Thus, the court concluded that the EIR's statement that "the significant adverse air-quality impacts will have an adverse impact on human health" failed to satisfy CEQA. The court, however, did provide the lead agency with some breathing room, as it declined to mandate that the lead agency employ a specific standard for analyzing human health impacts. Instead, it stated that the decision should be left up to the lead agency and provided an example of a potential standard that could be used (one pre-eminently more reasonable than respirator versus no respirator): the county could estimate the number of days, if any, that the area would exceed the ambient air-quality standards as a result of the project's air-quality impacts.
The court also stated in a footnote, presumably because there was no specific challenge to the statement of overriding consideration, that without an adequate disclosure of the respiratory health impacts from the project, the county could not "perform the required balancing of economic, legal, social, technological and other benefits of the project against the adverse impacts to human health" required for a statement of overriding consideration.
Mitigation Measures Unenforceable and Improperly Deferred
In an effort to mitigate the project's air-quality impacts, the EIR identified a single mitigation measure with a number of provisions that were intended to address nonresidential development, reduce residential energy consumption, promote bicycle usage and lower transportation emissions. The Sierra Club asserted a number of the provisions relating to nonresidential development failed to comply with CEQA because they were "amorphous guidelines" that are not enforceable. Again, the court agreed.
The relevant portion of the mitigation measure provided a list of activities, such as planting trees and installing heating, ventilation and air conditioning units with a catalyst system, and stated that "[t]he following guidelines shall be used by the county during review of future project-specific submittals for nonresidential development with the specific plan area and within the community plan boundary in order to reduce generation of air pollution with the intent that specified measures be required where feasible and appropriate ..." (Underlining added.)
Rolling the issue of vagueness into the larger issue of enforceability, the court found that these measures were not fully enforceable as required under CEQA. The court, identifying a number of infirmities, explained: (1) the measures and the EIR failed to expressly state how the county would make the measures enforceable; (2) the mitigation measures fail to definitively state who is to do what and when that action must be taken; and (3) in light of the wording in the EIR, one can only speculate whether the county or the developer has the authority to determine whether a measure is "feasible and appropriate." The court also found that the use of the term "appropriate" was problematic, since that term is not defined in CEQA or its implementing regulations.
Notably, with respect to the use of the phrase "feasible and appropriate," the court rejected the lead agency's argument that the language was not fatal to the validity of the mitigation measures, because the identical measures were repeated in another set of mitigation measures without the "feasible and appropriate" language. In rejecting this argument, the court stated that this internal inconsistency actually elevated the invalidity of the mitigation measures, since the lead agency could potentially use the inconsistency to justify not requiring any of the identical measures unless they were "feasible and appropriate."
The court also found that the mitigation measures failed to comply with CEQA because the EIR improperly deferred the formulation of mitigation measures by stating that the county and air district could "substitute different air-pollution control measures for individual projects ... that are equally effective or superior to those proposed." The court found that this authorization was flawed, because a number of the mitigation measures did not provide objective criteria for determining whether the substituted measure was as effective as the measure being replaced.
No Substantial Evidence re Substantial Reduction
Finally, the court found that the EIR violated CEQA because there was no evidence supporting the conclusion that the air-quality mitigation measure would "substantially reduce air-quality impacts related to human activity within the" project area. In reaching this conclusion, the court rejected the county's assertion that the language was irrelevant because it had been inadvertently added to the EIR. The court explained that the statement implies "that someone has quantified the expected reductions to the tons of emissions disclosed earlier in the EIR and concluded that those expected reductions would be substantial." Therefore, if the county wishes to reassert the statement in the future, it must also provide a quantitative assessment or nonquantitative basis with sufficient facts and analysis to support the conclusion such that "a reviewing court [can determine] whether the finding of fact is supported by substantial evidence."
The big takeaways from this decision are: (1) if a project results in significant unavoidable impacts on air quality, the EIR needs to analyze and discuss the health effects on the affected population in a measurable manner; (2) if an EIR includes a provision allowing for the substitution of mitigation measures, the existing measures must have a specific and measurable threshold for determining whether the substitute measure is at least as effective as the measure being replaced; and (3) if an EIR includes statements relating to the effectiveness of a mitigation measure, those statements must be supported by substantial evidence.