[authors: Brady R. McShane and Marc D. Luesebrink]
Preserve Wild Santee v. City of Santee Finds That CEQA Allows Courts to Issue Limited Fix-It Tickets for CEQA Deficiencies in EIRs Rather Than Decertifying the Entire EIR and Invalidating All Related Project Approvals.
Like death and taxes, litigation under the California Environmental Quality Act (CEQA) is often an inevitable result of developing property in California. And, while prevailing in litigation is preferable, in those situations where a court finds one or more deficiencies with an Environmental Impact Report (EIR), the court must enter an order directing the lead agency to remedy the situation.
While Public Resources Code Section 21168.9(b) specifically provides that such an order "shall include only those matters which are necessary to achieve compliance with [CEQA] and those activities in noncompliance with [CEQA]," until recently, case law has suggested that, even when an EIR is inadequate only in some areas, the judgment and writ of mandate must decertify the entire EIR and vacate all related project approvals. This raised a number of important considerations for lead agencies and developers - how much time and resources are required to recertify/reapprove the entire EIR and project approvals instead of only limited pieces; does decertifying and invalidating the EIR and project approvals necessarily mean that all work on the project must be halted, even work that is not associated with the identified deficiencies; and would decertifying and invalidating the EIR and project approvals render the project vulnerable to legal challenge again, even on issues that were not litigated the first time around?
Well, at least according to the Fourth District in Preserve Wild Santee v. City of Santee, __Cal. App. 4th__ (2012), the baby does not have to be thrown out with the bathwater. In appropriate cases, as seemingly contemplated by Section 21168.9, trial courts may fashion narrow remedies focusing on the aspects of the EIR and project approvals that truly need attention rather than decertifying the entire EIR and invalidating all related project approvals. This will reduce unnecessary administrative requirements and workload for lead agencies and developers, and it also may reduce litigation risk on remand because the entire EIR and related project approvals are not all subject to recertification/reapproval. From a strategy standpoint, lead agencies and developers that are subject to a deficiency determination will find value in a narrow ruling.
The Double-Edged Sword of CEQA Remedies: Greater Flexibility Carries with It More Uncertainty.
The provisions of Public Resources Code section 21168.9, enacted in 1993 during a real estate downturn, were clearly a legislative response to assertions that CEQA was being applied too broadly and unnecessarily impacting the development industry. This section was intended to allow courts flexibility in fashioning the remedy (i.e., does the judge put the project on ice and require an entire "redo" or impose some lesser requirement and possibly allow part of the project to continue forward). However, with this flexibility came some uncertainty as to what exactly a court or lead agency is supposed to do, leading to some potentially difficult questions about which parts of an EIR need to be revised, what approvals must be vacated, and what findings the lead agency must make concerning the environmental document and project on remand.
Looking for Clarity Concerning CEQA's Requirements for Fixing CEQA Deficiencies: Preserve Wild Santee Questions the Holding of Landvalue 77.
Notwithstanding Section 21168.9(b), in 2011, the Fifth District in Landvalue 77, LLC v. Board of Trustees of the California State University, 193 Cal. App. 4th 675 (2011), concluded that, even when an EIR is inadequate only in some respects, the judgment and writ of mandate must decertify the entire EIR and vacate all related project approvals. In particular, the court said that CEQA requires an EIR to be complete "and the concept of completeness is not compatible with partial certification. In short, an EIR is either complete or it is not." (Landvalue 77, p. 682.) While the court in Landvalue 77 proceeded to issue a relatively narrow mandate, its view that an EIR must stand or fall as a whole raised the troubling conceptual questions of whether a lead agency that decertifies an entire EIR must then recertify the entire EIR, and whether such recertification would render the entire document vulnerable to legal challenge again, even on issues that were not litigated the first time around.
Sure enough, relying on Landvalue 77 and presumably in an effort to force the lead agency to reevaluate the analysis and findings for all portions of the EIR, CEQA petitioners in Preserve Wild Santee argued that whenever a court finds an EIR inadequate, the lead agency must decertify the entire EIR and vacate all related project approvals. The Preserve Wild Santee court, however, rejected these arguments, likely recognizing that such an approach would substantially increase the administrative requirements and workload for lead agencies, as well as frustrating the legislative intent behind Section 21168.9.
In taking issue with the holding in Landvalue 77, the appellate court in Preserve Wild Santee found that "a reasonable, commonsense reading of section 21168.9 plainly forecloses plaintiffs' assertion that a trial court must mandate a public agency decertify the EIR and void all related project approvals in every instance where the court finds an EIR violates CEQA." The court went on to say that such a rigid requirement "is not always necessary to ensure a public agency or a developer does not thwart or render CEQA compliance meaningless by proceeding with environmentally harmful project activities before the public agency corrects its CEQA violations." In short, the court in Preserve Wild Santee recognized the potential problems with Landvalue 77's more rigid approach, and opted for an interpretation that more clearly preserves the flexibility and discretion that CEQA gives to courts and lead agencies.
While the distinction between Landvalue 77 and Preserve Wild Santee is subtle (many would say mind-numbingly arcane), the court's opinion in Preserve Wild Santee may head off the possibility of an unwelcome situation where Landvalue 77 is interpreted as limiting the flexibility of trial courts to fashion narrow remedies and to focus on the aspects of the EIR and project approvals that truly need attention.
Although Preserve Wild Santee Opted Not to Follow Landvalue 77's Approach to CEQA Deficiencies, the Court Acknowledged the Potential That Inadequacies in One CEQA Section May Spill Over into Another.
Notwithstanding that a trial court may issue a limited writ to remedy CEQA violations, it does not follow that such order is appropriate in all cases. Importantly, the Preserve Wild Santee court observed that certain sections of the EIR had a strong interrelationship with other sections, and questioned whether issuance of a limited writ is reasonable in cases where revisions to the EIR to remedy deficiencies in one area reveal or even lead to deficiencies in another area. As an example, if a reviewing court finds a deficiency in the traffic section of an EIR, and issues a limited writ directing the lead agency to fix the problem, the lead agency's studies and analysis (e.g., traffic calculations) to address those traffic deficiencies may highlight problems with other sections of the EIR (e.g., air quality and noise) that were not addressed in the litigation. In such cases, the court might require the lead agency to revise not only the traffic section but also the other sections that are interrelated.
In sum, dedicating some additional time to consider possible spillover effects is likely well spent, given the acknowledgment in Preserve Wild Santee that compartmentalization of impact analysis may not always be possible.
While the flexibility and common sense substantiated in Preserve Wild Santee will be welcome news to many, it is only a single decision from one district court. Accordingly, it appears that case law may be unsettled in this area for some time to come and that this issue may merit consideration by the California Supreme Court.