In a partially published opinion filed December 4, 2017, the Second District Court of Appeal affirmed the trial court’s post-remand judgment and held that CEQA’s remedies statute – Public Resources Code § 21168.9 – allows a court issuing a writ in a CEQA proceeding to partially decertify an EIR, and to leave unaffected project approvals in place when doing so.  Center for Biological Diversity, et al. v. California Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (2017) ____ Cal.App.5th _____.

The opinion resulted from the second appeal in long-running litigation challenging approvals for the controversial Newhall Ranch development project in northwest Los Angeles County.  (I won’t reiterate the underlying facts and legal issues raised in the merits litigation, but my post on the Supreme Court’s November 30, 2015 opinion in the matter can be found here, and my post on the Court of Appeal’s July 11, 2016 partially published opinion on remand can be found here).

In pertinent part, the Court of Appeal in its previous opinion on remand directed the trial court to address only two issues – concerning GHG emissions and stickleback take – and set aside the corresponding portions of the project EIR.  Beyond that, it expressly left writ remedy issues concerning the extent of EIR decertification, injunctive relief, and the determination of severance issues “in the trial court’s good hands.”  After a remand hearing, the trial court (Hon. John A. Torribio) rendered judgment accordingly, ordering issuance of a peremptory writ of mandate directing the department to decertify and void the GHG- and stickleback-related portions of the EIR, leaving the remaining CEQA-compliant portions in place, and also enjoining all project activity including construction until the EIR was legally compliant.  Additionally, the trial court ordered the department to “suspend” two project approvals directly related to the EIR’s voided determinations, but left four other approvals in place “because no action was needed as to them “unless compliance with the writ changes or affects” them.”

In affirming the judgment, the Court of Appeal rejected plaintiffs’ arguments that CEQA permits no “middle ground” between full EIR decertification and no decertification in a writ order.  While an agency must initially certify an entire EIR before approving a project, “a court has additional options [under § 21168.9] once it has found an agency’s EIR certification noncompliant.”  The Court held:  “Section 21168.9, subdivision (a) clearly allows a court to order partial decertification of an EIR following a trial, hearing, or remand.”  The statute applies when a court finds “any determination, finding, or decision of a public agency” non-compliant with CEQA, and requires the court to enter a writ order containing one or more of three specified mandates, which include voiding the agency’s determination “in whole or in part.”  When doing the latter, the court must make severance findings determining whether the voided portions are severable and whether the remainder will be fully CEQA-compliant.  Per the Court:  “As an EIR certification is an agency determination, it may be voided in part by a trial court following such findings.”

The Court found support for its view in Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 288, which held a “reasonable, commonsense reading of Section 21168.9 plainly forecloses … [the] 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.”  Such a “rigid” requirement would not effectuate the statute’s purpose to give trial courts “some flexibility in tailoring a remedy to fit a specific CEQA violation.”

While plaintiffs’ contrary “restrictive” view of Section 21168.9’s available remedies derived from Land Value 77, LLC v. California State University (2011) 193 Cal.App.4th 675, that case and other authority they relied on was inapposite as addressing the situation where severance findings were not or could not properly be made; in this case, by contrast, the Court held the trial court properly exercised its legal “authority [under § 21168.9(a)(1)] to order partial decertification of an EIR so long as the severability criteria pursuant to subdivision (b) of that section are satisfied.”

In rejecting plaintiffs’ second legal argument, the Court held the statutory “language [also] allows for the possibility of leaving some project approvals in place when an EIR is partially decertified.”  Citing § 21168.9(b)’s requirement that courts order only those mandates needed to achieve CEQA compliance, it held that “if the court finds that it will not prejudice full compliance with CEQA to leave some project approvals in place, it must leave them unaffected.”  The Court reasoned:  “The requirement of severability findings serves to ensure that the approvals that remain in place will not obstruct CEQA compliance.”  Thus, it held as a matter of law that the statute gives a “trial court…the authority to leave some project approvals in place when decertifying portions of an EIR, so long as it appropriately finds the portions severable under Section 21168.9, subdivision (b).”

Applying this law to the trial court’s judgment, the Court of Appeal further held the trial court did not abuse its discretion in exercising the legal authority conferred on it by the CEQA remedies statute.  It properly considered the relevant severability factors, and made proper findings; ordered suspended all project activity that could adversely alter the physical environment pending the department’s correction of the two EIR (and Fish & Game Code) deficiencies; voided the two project approvals (the CEQA Findings of Fact and Statement of Overriding Considerations, and Mitigation Monitoring and Reporting Plan) that directly related to the EIR defects and required correction; and properly found that severing and leaving the other approvals in place would not prejudice full CEQA and writ compliance in light of the injunction suspending project activity and preserving the physical status quo.

The Court of Appeal’s decision in undoubtedly correct and makes a useful contribution to the case law.  It provides helpful clarification regarding the flexible remedies authorized in CEQA writ proceedings by Public Resources Code § 21168.9, and properly rejects contrary arguments derived from dubious and misconstrued language in the Land Value 77, LLC case.