[author: Arthur F. Coon]

A unanimous Third District panel upheld Siskiyou County’s EIR for Roseburg Forest Products Co.’s (Roseburg) electricity cogeneration project involving expansion of its existing wood veneer manufacturing facility. (Mount Shasta Bioregional Ecology Center v. County of Siskiyou (3d Dist. 9/26/12) ____ Cal.App.4th ___, 2012 WL 4378593). In rejecting the CEQA challenge brought to the EIR by plaintiffs Mount Shasta Bioregional Ecology Center (MSBEC) and Weed Concerned Citizens (WCC), the Court of Appeal resolved a key issue of first impression regarding the adequacy of an EIR’s alternatives analysis. It also rendered numerous holdings reaffirming the substantial deference CEQA accords to an EIR’s analysis and conclusions, and reinvigorating CEQA’s “established [statutory] principle that there is no presumption that error is prejudicial.” (Pub. Resources Code, § 21005(b).)

The background facts can briefly be summarized as follows: In the mid-1980s,Roseburg bought a wood products plant on 300-plus acres in the unincorporated county adjacent to Weed, and converted it to a softwood veneer processing facility. In 2006, Roseburg sought expansion to accommodate a biomass-fueled cogeneration power plant, using heat generated from its boiler both in its manufacturing process and to generate electricity for resale on the grid. The proposed project included upgrading and retrofitting the power facility within the existing boiler house with a steam-driven cogeneration system including a turbine generator, exterior cooling tower, and new electrical substation comprised of a 50-foot-tall communications tower and control building. The equipment would be housed on less than an acre of the 300-acre site, and the nearest residence would be approximately 250 feet away. 

While the entire County of Siskiyou opinion is of interest for its instructive application of CEQA principles and deferential review of the project EIR, some points particularly worth noting include:

• The EIR’s alternatives section recited that “the county identified a ‘reasonable range’ of alternatives, as defined by CEQA[,]” but went on to state: “There were not any alternatives identified that: 1) would meet most or all of the project objectives, 2) are considered feasible, and 3) would avoid or substantially reduce one or more potentially significant impacts of the proposed project. Several alternatives were considered but rejected from further consideration. Another alternative, a No Project alternative was further evaluated….” The DEIR identified three alternatives (reduced capacity, relocated boiler, and alternative, out-of-state project location) that were considered and rejected as not meeting the objectives of an economically viable project, not offering economic, operational or environmental benefits, and not meeting project objectives, respectively. Thus, the DEIR thus considered in depth only the No Project alternative. 
• In upholding the alternatives analysis as considering and analyzing a “reasonable range” of alternatives to the extent required by CEQA, the Court noted the alternatives considered must be potentially feasible and that those rejected by the EIR as not potentially feasible don’t “count” toward the range. “Nevertheless, [the Court stated] that does not mean an EIR is inadequate if all alternatives considered by the agency during the scoping phase are determined not to be potentially feasible.  Plaintiffs’ argument presupposes an EIR indicating that no alternatives were found to be potentially feasible violates CEQA. However, as plaintiffs themselves acknowledge, there is no rule specifying a particular number of alternatives that must be included.”
• After noting that each case requires a fact-specific analysis, and that “CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR[,]” the Court observed plaintiffs failed to “identify any alternatives that they contend are feasible given the objectives of the Project” despite their burden to do so to demonstrate EIR inadequacy; according to the Court, they presented “nothing more than a difference of opinion” regarding County’s rejection of various alternatives as not potentially feasible and failed to carry their burden of showing no substantial evidence supported that rejection. The Court concluded:  “Absent a showing that the EIR failed to include a particular alternative that was potentially feasible or that, under the circumstances presented, including only the Project and the No Project alternatives did not amount to a reasonable range of alternatives, plaintiffs’ challenge to the alternatives analysis fails.”
• Giving some lessons in appellate practice, the Court noted that where “plaintiffs provide[d] detailed argument and citations to authority only as to … one [of their many air quality impacts claims, i.e.,] that the EIR uses the wrong baseline and consequently understates the Project’s environmental impacts[,]” it “need not address the other contentions.” Later in the opinion, the Court similarly observed that where plaintiffs’ appellate briefs did not state each point raised under a separate heading, as required by Rule 8.204(a)(1)(B) of the California Rules of Court, their arguments were “forfeited.”
• The Court also rejected an air quality argument supported by a last-minute “document dump” that was in violation of the County’s local administrative appeal hearing rules: “For much of plaintiffs’ argument, … they rely solely on a letter prepared by Dr. Petra Pless that was submitted to the Board the day before the hearing on plaintiffs’ appeal of the Planning Commission decision. This 16-page, single-spaced letter was accompanied by 101 pages of supporting literature. The Board allowed the Pless letter to be made part of the record but refused to consider it as evidence for purposes of plaintiffs’ appeal. County hearing rules require that all documentary evidence be submitted at least five days before the hearing date.” The Court held “the Pless letter was not timely submitted and the Board [properly] refused to consider it for purposes of plaintiffs’ [administrative] appeal.” Further, “while the Board allowed the letter to be lodged in the administrative record, this was a meaningless act except insofar as it provided plaintiffs an opportunity to challenge exclusion of the letter from evidence before the Board. Plaintiffs have raised no such challenge. The Board excluded the letter from the evidence before it for consideration. Absent error in this regard, the letter is not properly part of the record before us on review of the Board’s decision.” The Court also rejected plaintiffs’ argument that the letter was part of the record because comments submitted after the DEIR comment period but before project approval are part of the record, stating: “… the Pless letter was not submitted before approval of the Project. It was submitted just before the hearing on plaintiffs’ appeal of such approval. And it was untimely in that regard.”
• In rejecting plaintiffs’ argument that the EIR was deficient due to its misstatement of NO_X emissions, the Court noted “there is no presumption that an error was prejudicial” (citing Pub. Resources Code, § 21005(b)), and concluded: “We cannot see on this record how a difference of 7 percent between actual and approximate emissions would have precluded informed decision making or informed public participation.” Later in the decision, the Court again invoked this statutory principle holding that even assuming the EIR erred (as plaintiffs asserted) in stating that project’s water use would be 120,000 gallons per day (gpd), when it would actually be almost twice that (230,000 gpd), plaintiffs showed no prejudicial error from such an inaccuracy: “It is not enough simply that the EIR misstated an aspect of a proposed project. … [citations]. The fact the overall water usage on the Project may have been understated in the DEIR would not appear to preclude informed decision making or informed public participation unless the increased usage would have a significant environmental effect. We will not presume that to be the case here. (Pub. Resources Code, § 21005(b).)”
• The Court also essentially found the County was free to choose between experts regarding its EIR’s noise analysis methodology and conclusions, and its conclusions as to the efficacy of adopted noise mitigation measures were subject to the deferential substantial evidence test. Its choice of a significance standard triggered by a 3.0 dBA increase “was a judgment call … properly left to the County.” Where plaintiffs did not assert a lack of substantial evidence to support the EIR’s conclusion as to the project’s predicted noise levels, they could show no deficiency; the Court held: “A difference of opinion on the facts is not a valid basis for overturning approval of an EIR.” Further, the addition of two noise studies in the FEIR to bolster the DEIR’s conclusions with further information did not amount to significant new information requiring recirculation.

Courts sometimes seem to forget that when an EIR is prepared, it is entitled to great deference:  the burden is on the challenger to demonstrate its inadequacy, all presumptions favor its adequacy, a deferential substantial evidence standard applies to its conclusions, and there is no presumption of prejudicial error. The Third District didn’t forget to apply these rules, and its opinion is noteworthy for that reason.

Questions?  Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for over forty-five years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.