Fifth District Says Show Me the Health Impacts, Not Just the Numbers

by Nossaman LLP

In a decision that will likely impact projects all across the state, the Court of Appeal for the Fifth Appellate District issued its second major CEQA decision of the year, finding that when a project will result in pollutant emissions that exceed thresholds established by an air quality district, an Environmental Impact Report ("EIR") must provide a detailed evaluation of the human health risks associated with each exceedance.  (Sierra Club v. County of Fresno (2014) 2014 Cal.App. LEXIS 459.)  As such, the decision arguably raises the bar with respect to a lead agency's obligation to analyze a project's air quality impacts on human health.

The EIR estimated that a proposed master-planned community for persons age 55 or older located in north-central Fresno County (the "project") would emit approximately 117.38 tons per year of PM10, 109.52 tons per year of reactive organic gases ("ROG"), and 102.19 tons per year of nitrogen oxides (NOx) at build out.  These amounts were approximately 7 to 10 times great than the respective thresholds established by the San Joaquin Valley Air Pollution Control District.  While the EIR provided an air quality mitigation measure (which is discussed further below), it concluded that the mitigation measure would not reduce the emissions below the thresholds, and thus there was an unavoidable significant impact with respect to air quality.  The County subsequently approved the project with a statement of overriding consideration.

While the Superior Court denied the Sierra Club's challenge to the EIR, the Court of Appeal reversed that decision, finding that (1) the EIR failed to adequately analyze the project's air quality impacts on human health, (2) the mitigation measures for the project's long term air quality impacts failed to comply with CEQA, and (3) the conclusion that the mitigation measure would "substantially reduce" air quality impacts was not supported by substantial evidence. 

Health Impacts Not Analyzed

The Court of Appeal, after summarizing the EIR's discussion of air quality impacts, found that while the EIR adequately identified the air quality impacts of the project, it did not adequately analyze them.  The court explained that with respect to the issue of identification, the EIR:  (1) listed the types of pollutants that the project would produce; (2) identified the tons per year for each of the pollutants that the project was expected to generate; and (3) provided a general description of the potential health impacts associated with each pollutant.  Distinguishing the EIR's discussion from that addressed in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, the court found that the EIR had adequately identified the project's air quality impacts.  However, the court also found that this discussion alone was not adequate for the purposes of CEQA, because there was no analysis of the correlation between the project's emissions and human health impacts.  The court, providing an admittedly "extreme example," stated:

The information provided does not enable a reader to determine whether the 100-plus tons per year of PM10, ROG, and NOx will require people with respiratory difficulties to wear filtering devices when they go outdoors in the project area or . . ., in contrast, will be no more than a drop in the bucket to those people breathing the air containing the additional pollutants.

While the court ultimately concluded that the EIR's statement that "the significant adverse air quality impacts will have an adverse impact on human health" failed to satisfy CEQA, it did not mandate that the County employ a specific standard for analyzing human health impacts.  Instead, it stated that that decision should be left up to the lead agency, and provided the County with an example of a potential standard (one preeminently more reasonable than respirator versus no-respirator):  the County could estimate the number of days of non-attainment that would occur, if any, as a result of the project's air quality impacts. 

The court also stated in a footnote that without an adequate disclosure of the respiratory health impacts from the project, the County could not "perform the required balancing of economic, legal, social, technological and other benefits of the project against the adverse impacts to human health" required for a statement of overriding consideration.

Mitigation Measures Unenforceable and Improperly Deferred

In an effort to mitigate the project's air quality impacts, the EIR identified a single mitigation measure with a number of provisions that were intended to address nonresidential development, reducing residential energy consumption, promoting bicycle usage, and transportation emissions.  The Sierra Club asserted a number of the provisions relating to nonresidential development failed to comply with CEQA because they were "amorphous guidelines" that are not enforceable.  The court agreed.

The relevant portion of the mitigation measure provided a list of activities, such as planting trees and installing HVAC units with a catalyst system, and stated that "[t]he following guidelines shall be used by the County during review of future project-specific submittals for non-residential development with the Specific Plan area and within the Community Plan boundary in order to reduce generation of air pollution with the intent that specified measures be required where feasible and appropriate . . . ."  (Underlining added.)  Rolling the issue of vagueness into the larger issue of enforceability, the court found that these measures were not fully enforceable as required under CEQA.  The court, identifying a number of infirmities, explained:  (1) the measures and the EIR failed to expressly state how the County would make the measures enforceable; (2) the mitigation measures fail to definitively state who is to do what and when that action must be taken; and (3) in light of the wording in the EIR, one can only speculate whether the County or the developer has the authority to determine whether a measure is "feasible and appropriate."  The court also found that the use of the term "appropriate" was problematic, since that term is not defined in CEQA or the CEQA Guidelines. 

The court also found that the EIR improperly deferred the formulation of mitigation measures, because the EIR stated that the County and Air District could "substitute different air pollution control measures for individual projects . . . that are equally effective or superior to those proposed[,]" but a number of the mitigation measures did not provide an objective criteria for determining whether the substituted measure was as effective as the measure being replaced. 

No Substantial Evidence re Substantial Reduction

Finally, the court found that the EIR violated CEQA because there was no evidence supporting the conclusion that the air quality mitigation measure would "substantially reduce air quality impacts related to human activity within the" project area.  The court stated that if the County wishes to reassert the statement in the future, it must also provide a quantitative assessment or nonquantitative basis with sufficient facts and analysis to support the conclusion such that "a reviewing court [can determine] whether the finding of fact is supported by substantial evidence."


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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