Court of Appeal Finds Caltrans Omitted Material Necessary to Informed Decision Making by Failing to Include a Threshold of Significance for Old Growth Redwood Trees and Including Mitigation Measures as Part of Project Description

In Lotus v. Department of Transportation (2014) 223 Cal.App.4th 645, a California Court of Appeal found that Caltrans omitted material necessary to informed decision-making and informed public-participation when it failed to identify a standard of significance for project impacts to old growth redwood trees.  Caltrans also erred in including impact-reducing measures as part of the project description, rather than as mitigation measures.

Caltrans proposed a highway construction project to adjust the alignment of the approximately one-mile stretch of the United States Route 101 that passes through Richardson Grove State park (“Project”).  Caltrans prepared an Environmental Impact Report (“EIR”) pursuant to the California Environmental Quality Act (Pub. Resources Code § 21000 et seq., “CEQA”) for the Project. The EIR stated that the “primary environmental impacts resulting from the project [were] tree removal and potential damage to the structural root zones of other trees caused by, among other things, excavation and placement of impervious material or fill over the roots.”  The EIR did not include any thresholds of significance for impacts to old growth redwoods or include any evaluation of the impacts.  It did, however, incorporate “special construction techniques” into the Project description to avoid, minimize and mitigate expected impacts to redwood trees.  Despite the absence of a thresholds of significance, Caltrans concluded “[n]o significant environmental impacts are expected as a result of this project with the implementation of the stated special construction techniques.”

The appellate court found that “[b]y compressing the analysis of impacts and mitigation measures into a single issue, the EIR disregard[ed] the requirements of CEQA.”  The court explained that CEQA requires that an EIR include a detailed statement setting forth all significant effects of the proposed project on the environment and specify mitigation measures  to minimize each of those significant effects.  If the EIR identifies significant environmental effects, the public agency may approve the project only if it makes one or more of the following findings for each significant effect: “‘(a)  . . . [¶ ] (1) Changes or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects on the environment. . . . [¶ ] (3) Specific economic, legal, social, technological or other considerations . . . make infeasible the mitigation measures or project alternatives identified in the environmental impact report.’ (Pub. Resources Code, § 21081; Sacramento Old City Assn. v. City Council, supra, 229 Cal.App.3d at p. 1034.)”

The appellate court found that Caltrans failed "to make the necessary evaluation and findings concerning the mitigation measures that [were] proposed.”  Absent such a determination, “it is impossible to determine whether mitigation measures are required or to evaluate whether other more effective measures than those proposed should be considered.”  Further, if such a finding were made, the lead agency would have to consider whether feasible alternatives might reduce the impact, and would also have to adopt an enforceable mitigation program.  The court concluded, “[s]imply stating there will be no significant impacts because the project incorporates ‘special construction techniques’” is not adequate or permissible.  The court explained, “the failure of the EIR to separately identify and analyze the significance of the impacts to the root zones of old growth redwood trees before proposing mitigation measures is not merely a harmless procedural failing.”  Rather, the court found the failure “subverts the purposes of CEQA by omitting material necessary to informed decision-making and informed public participation” and thus was not a harmless error.

The court reversed the trial court’s denial of the petition for writ of mandate and remanded the case for issuance of a writ directing Caltrans to set aside its certification of the final EIR until it modified the portions of the EIR pertaining to old growth redwoods.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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