In Center for Biological Diversity et al. v. California Department of Fish and Wildlife, 17 Cal. App.5th 1245 (2017) the court of appeal held a court order that requires partial decertification of an Environmental Impact Report and leaves some project approvals in place is a legally permissible remedy when an EIR has been found legally inadequate.

Background.  This was the second appeal in this case. The petitioners had challenged the EIR and related approvals for two natural resource plans adopted for the proposed Newhall Ranch development in northwest Los Angeles County. The first trial court judgment and corresponding writ of mandate set aside the project approvals, ordered the Department of Fish and Wildlife to set aside its certification of the EIR, and enjoined the department and the developer from proceeding with any project activity.

The case then worked its way up to the California Supreme Court, which held the EIR’s findings on the significance of the project’s greenhouse gas emissions were unsupported and its measure for protecting a fish species, the unarmored threespine stickleback, was unlawful.  On remand from the supreme court, the court of appeal ruled against the plaintiffs on their other claims, and sent the case back to the trial court for issuance of a revised judgment and writ of mandate.

The trial court entered judgment in favor of the plaintiffs on their claims relating to greenhouse gas emissions and stickleback, and in favor of the department and the developer on all other issues.  The judgment further ordered that a peremptory writ of mandate be issued directing the department to decertify the portions of the EIR that addressed the significance of the project’s greenhouse gas emissions and the validity of the stickleback mitigation measures. Finally, the judgment ordered the department to suspend two project approvals that related directly to these issues, but left four other approvals in place.

On appeal from the post-remand judgment, the plaintiffs’ arguments were purely legal — that the judgment and writ were erroneous under CEQA because Public Resources Code section 21168.9 prohibits partial decertification of an EIR and also prohibits leaving project approvals in place when an EIR is decertified

The Court’s Analysis.  The court of appeal  first held that the trial court had authority under the statute to partially decertify the EIR. As noted above, the judgment had directed the department to decertify only the portions of the EIR addressing greenhouse gas emissions and stickleback mitigation measures, rather than the entire EIR. The plaintiffs argued that CEQA permits no such middle ground between full decertification and no decertification.

The court noted that while an agency must certify an entire EIR before approving a project, a court has other options once it has found an agency has certified a deficient EIR.  Public Resources Code section 21168.9(a), the statute that governs court-ordered remedies for a CEQA violation, clearly allows a court to order partial decertification of an EIR following a trial, hearing, or remand.  Specifically, section 21168.9(a)(1) permits a court to void the agency determination in whole or in part.  As a policy matter, the court noted that partial decertification is consistent with the statute’s purpose, which is to give courts some flexibility in tailoring a remedy to fit a specific CEQA violation. Thus, the court held that under section 21168.9(a)(1), a court may order partial decertification of an EIR, so long as the severability criteria in subdivision (b) of that section are satisfied, which the court determined them to be in this case.

For similar reasons, the court also held that the trial court was permitted to leave some project approvals in place after partial decertification of the EIR. Since a trial court has authority under section 21168.9 to order an agency’s determination to be voided in whole or in part, the court concluded that this language allowed for the possibility of leaving some project approvals in place when an EIR is partially decertified. In particular, the court pointed to the language in section 21168.9(b), under which a court is required to order only those mandates which are necessary to achieve compliance with this division and only those specific project activities in noncompliance with this division.  The court held that a trial court may therefore leave some project approvals in place, if doing so will not obstruct CEQA compliance.