North Coast Rivers Alliance v. Kawamura CA3 , 196 Cal. Rptr. 3d 559 ( 2015 )

Filed 12/2/15 North Coast Rivers Alliance v. Kawamura CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
NORTH COAST RIVERS ALLIANCE et al., C072067
Plaintiffs and Appellants, (Super. Ct. No. 34-2010-
80000518-CUWMGDS)
v.
A. G. KAWAMURA, as Secretary of the
California Department of Food and Agriculture et al.,
Defendants and Respondents.
______________________________________________________________________
OUR CHILDREN'S EARTH FOUNDATION et al., C072617
Plaintiffs and Appellants, (Super. Ct. No. 34-2010-
80000638-CUWMGDS)
v.
CALIFORNIA DEPARTMENT OF FOOD AND
AGRICULTURE et al.,
Defendants and Respondents.
1
This case involves the California Environmental Quality Act (CEQA; Pub.
Resources Code, § 21000 et seq.; unless otherwise set forth, statutory references that
follow are to the Public Resources Code) and CEQA Guidelines (Cal. Code Regs., tit. 14,
§ 15000 et seq.) which are entitled to great weight. (In re Bay-Delta etc. (2008)
43 Cal.4th 1143, 1163, fn. 7 (Bay-Delta).)
California Department of Food and Agriculture (CDFA) prepared and certified a
programmatic environmental impact report (EIR) for a seven-year program to eradicate
an invasive pest -- the light brown apple moth (LBAM), aka Epiphyas postvittana -- but
“at the last minute” approved instead a seven-year program to control LBAMs based on
new information that eradication was no longer attainable. The EIR did not evaluate
control as a reasonable alternative to eradication, and there was no supplemental
environmental review in connection with the last-minute change. CDFA’s position is
that the change from pest eradication to pest control reduced the scope of the seven-year
program. The opponents maintain the change actually expanded the scope of the
program, because pest control activities will necessarily have to continue indefinitely
after expiration of the seven-year period, as expressly acknowledged in the EIR.
These two appeals challenge judgments entered after the trial court denied two
petitions for writ of administrative mandamus (Code Civ. Proc., § 1094.5) asserting
CEQA violations and challenging the program approved by the California Department of
Food and Agriculture (CDFA) and its former Secretary A.G. Kawamura. On our own
motion, we ordered the appeals consolidated for purposes of oral argument and decision.
One group of appellants (case No. C072067) is comprised of North Coast Rivers
Alliance, Stop the Spray Marin, California Alliance to Stop the Spray, Frank Egger,
Whitney Merchant, Loralie Cioffi, Helen Kozoriz, Gayle McLaughlin, Robert Lieber,
Tony Madrigal, Larry Bragman, Paulina Borsook, Sharon Luehs, Mike De Lay and
Janice De Lay (collectively NCRA). They name as real parties in interest Aberdeen
Road Company, Pacific Biocontrol Corporation, and ISCA Technologies Incorporated.
2
The other group of appellants (case No. C072617) is comprised of Our Children’s
Earth Foundation, Mothers of Marin Against the Spray, Stop the Spray East Bay, City of
Albany, City of Berkeley, City of Richmond, City and County of San Francisco, Center
for Environmental Health, Californians for Pesticide Reform, Pesticide Watch, Pesticide
Action Network North America, Citizens for East Shore Parks, and Stop the Spray San
Francisco (collectively OCEF).
Appellants contend the EIR violated CEQA by making assumptions unsupported
by substantial evidence and by inadequately addressing environmental impacts, a
reasonable range of alternatives, and cumulative impacts. Appellants also contend
CDFA’s “last-minute” approval of a control program instead of the eradication program
rendered the environmental review deficient in failing to provide an accurate and stable
project description, inadequately discussing alternatives, and improperly “segmenting”
the project by reviewing a seven-year program but approving a seven-year program that
will have to continue beyond seven years.
We deny, as immaterial to resolution of this appeal, CDFA’s July 16, 2013, and
August 1, 2013, requests for judicial notice of federal orders (1) removing Santa Barbara
County from the LBAM quarantine area on the ground no additional moths have been
detected there, and (2) exempting additional crops from restrictions on interstate
movement due to pest mitigation provided through industry standards of production,
harvesting, and packaging practices.
We conclude that, even before the new information came to light that eradication
was no longer attainable, the EIR violated CEQA by giving the project’s “objective” an
artificially narrow definition (“eradication of LBAMs”) and thereby omitting analysis of
pest control as a reasonable alternative to the eradication program. The EIR
acknowledged the project’s “purposes” included protecting California native plants and
agricultural crops from damage. While a control program may have achieved these
“purposes” to some extent (as evidenced by the ultimate approval of a control program),
3
the EIR declined to evaluate a control program as an alternative to an eradication
program on the ground that a control program would not achieve the “objective” of
eradication. The EIR did not even address in its cumulative impacts discussion the
incremental effect of the reasonably foreseeable future need to continue anti-LBAM
measures after expiration of the seven-year period. The EIR’s omissions leave the record
devoid of evidence to prove CDFA’s claim that the last-minute change was legally
acceptable because the adopted control program was narrower than the EIR’s eradication
program.
Our finding of CEQA violations as to some issues does not relieve us from
reviewing appellants’ other contentions. (§ 21005, subd. (c) [any court that finds a
CEQA violation “shall specifically address each of the alleged grounds for
noncompliance”]; but see, Communities for a Better Environment v. City of Richmond
(2010) 184 Cal.App.4th 70, 101-102 [§ 21005 does not require appellate court to address
additional alleged defects that may be addressed in a completely different and more
comprehensive manner upon subsequent CEQA review following remand].)
We reverse the judgments and remand with directions.
FACTS AND PROCEEDINGS
The LBAM is an invasive moth native to Australia. Though appellants view
LBAM as “innocuous,” the record contains evidence supporting a contrary conclusion.
The LBAM is a leaf-roller that makes a nest by rolling up plant leaves. The larvae feed
on leaves and buds, reducing the plant’s photosynthetic ability and deforming its growth
patterns. LBAM is polyphageous, meaning it eats a variety of plants and trees. The
larvae can feed directly on some fruits, rendering them unmarketable. LBAMs multiply
rapidly and can adapt quickly to feeding on new kinds of plants. The insects do not
generally travel great distances on their own but spread quickly by inadvertent human
transfer through the nursery trade.
4
The first LBAM reported in California was in Berkeley in February 2007. CDFA
initiated a pheromone-baited trapping project, found additional LBAMs in other counties,
and in April 2007 quarantined 182 square miles in Alameda, Contra Costa, San
Francisco, Marin, and Santa Clara counties. In May 2007, the United States Department
of Agriculture (USDA) issued a federal quarantine order requiring trapping, inspection,
and certification of all nursery stock and host commodities in eight California counties.
The USDA Animal and Plant Health Inspection Service (APHIS) convened a
technical working group (TWG) of experts from California, Australia, and New Zealand,
to develop a plan to combat the pest. Although no one had ever succeeded in completely
eradicating the LBAM (because the insect was either native to the country or deeply
embedded after a number of years), the TWG determined complete eradication was
possible in California due to the relatively small LBAM population in California at that
time.
The Legislature in September 2007 enacted emergency legislation creating and
funding a temporary Light Brown Apple Moth Program in the CDFA, authorizing CDFA
to take action until January 1, 2010, to combat the spread of the LBAM. (Former Food &
Agr. Code, §§ 6050, 6050.1; Stats. 2007, ch. 190 (Sen. Bill No. 556), repealed by own
terms on Jan. 1, 2010.) The Legislature found in former section 6050 that “[i]ntroduction
of the light brown apple moth represents a clear, present, significant, and imminent
danger to California’s natural environment and agricultural industry. This is an insect
species that feeds on over 250 species of native and ornamental plants, fruits, and
vegetables. [¶] . . . [¶] . . . [and also] will feed on alder, ceanothus, columbine,
cottonwood, cypress, ferns, fir, hawthorn, honeysuckle, lupine, madrone, oak, pine,
poplar, redwood, spruce, and willow.” (Former § 6050; Stats. 2007, ch. 190, § 2.)
“There is an imminent threat for adverse effect and ultimate extinction to some of these
sensitive species if this pest becomes permanently established in California.” (Ibid.) At
that time, LBAM was “currently found in the urban and natural areas in all parts of nine
5
California counties and could move into agricultural croplands.” (Ibid.) The state has a
“great interest in protecting its native species and agricultural products from further harm
caused by [LBAMs].” (Ibid.) The legislation required CDFA’s Secretary to provide
support staff and logistical support “for eradicating the [LBAM].” (Former § 6050.1;
Stats. 2007, ch. 190, § 2.) CDFA was required to “annually review the progress made by
each local agency in eradicating the [LBAM], and make recommendations, as needed, to
improve individual local agency eradication efforts.” (Ibid.)
In late 2007, CDFA and USDA started emergency treatment of isolated LBAM
populations.
The LBAM nevertheless spread rapidly. The numbers of LBAMs trapped by
CDFA were 10,285 in 2007; 62,346 in 2008; and 71,867 as of March 2009. By 2009, the
quarantine area had expanded to 13 counties in California.
In February 2008, CDFA filed a CEQA Notice of Preparation of a “Programmatic
[EIR] (PEIR) for the eradication of the [LBAM].”
The draft EIR (DEIR) which was released for public review at the end of July
2009, stated the “goal” was to eradicate LBAMs from California by 2015 (later reset at
2017). “The CDFA’s objective is to eradicate LBAM from the state of California by
2015. Initial efforts will be to contain the LBAM population and not allow LBAM to
spread into adjacent counties. The CDFA will then suppress heavily infested areas
around production nurseries, suppress and eradicate populations in outlying counties to
remove these counties from regulation, and finally eradicate populations throughout the
state. Eradication is to be accomplished using a variety of tools with reliance primarily
on biological control methods applied in an effective and environmentally safe manner.
[¶] The Program is needed to protect the state’s native plants, forest species,
agronomically important crops, and ornamental plants from damage by this invasive pest
species. The CDFA must protect agriculture from invasive pests to protect the nation’s
6
food supply, the environment, and the economy. Furthermore, eradication of the pest
within the state is needed to prevent its expansion to other states and other countries.”
The DEIR’s chapter on Alternatives reveals a failure to appreciate CEQA’s
requirement to study alternatives to the program. (§§ 21001, subd. (g), 21100, subd.
(b)(4); Guidelines, § 15126.6.) It studied as “alternatives” seven tools (five of which
were approved) to be used in whatever combination was best suited for particular sites to
be treated. The DEIR said: “This chapter summarizes the analysis of alternatives for
LBAM eradication. It presents a series of potential alternatives or ‘tools’ and screening
criteria to produce a ‘toolbox’ of options to support the LBAM Eradication Program.”
(Italics added.)
The five approved tools mislabeled as “alternatives” were:
(1) sterile insect technique (SIT), releasing sterile moths into the environment to
mate with wild moths;
(2) mating disruption pheromone (to attract males and prevent them from mating
without killing them) using twist-ties (MD-1), placing plastic twist-ties infused with
LBAM pheromone in places of small isolated LBAM infestations;
(3) mating disruption pheromone applied using ground-based equipment (MD-2),
applying LBAM pheromones to trees and shrubs in residential yards and to telephone
poles and trees on public property along roadways;
(4) inundative parasite wasp release (Bio-P) releasing an egg parasitoid, which is a
native stingless wasp -- a predator to the moths -- near foliage where LBAM have been
detected; and
(5) foliar ground treatments with approved insecticides (Btk and S). Btk is the
biopesticide Bacillus thuringiensis kurstaki, a live bacterium that invades the host
organism. “S” is the chemical pesticide Spinosad.
DEIR’s Appendix H -- “Process Used to Select Tools for Use in the [LBAM]
Eradication Program” by LBAM Eradication Program Director Robert Dowell dated
7
April 5, 2009 -- stated: “The goal of the [LBAM] Eradication Program is the elimination
of breeding populations of the moth from California. This is fundamentally different
[from] controlling the pest. [Italics added.] In control programs the goal is to protect a
specified area such as a crop from the damage caused by the moth. Only a portion of the
pest population is treated; that which threatens the area to be protected. The control
measures are applied to the area to be protected and it is assumed that some damage is
acceptable. Control measures are generally not applied outside the area to be protected.
Thus, if an exotic pest becomes permanently established in California, control measures
will be needed forever. [Italics added.] [¶] Eradication programs treat the entire pest
population with the goal of eliminating it. If successful, the pest is gone and additional,
permanent control measures are no longer needed. [¶] LBAM has never been the target
of a previous eradication program. Therefore there are no successful model programs for
this program to follow. In these circumstances [CDFA] and [USDA] have relied on the
use of successful control measures to eradicate the pest. The difference is that instead of
simply lowering the pest population in a selected portion of its population (control) we
treat the entire population to elimination (eradication). [¶] The CDFA used a step-wise
process to evaluate a number of potential tools for use in the LBAM Eradication
Program. The process involved an initial screen to determine which tools merited further
evaluation and then a second evaluation to determine which tools will actually be used in
the program. . . . This information was used to select the tools to be evaluated further for
use in the eradication program.”
The DEIR stated: “The Program anticipates using all of the chemical and
nonchemical alternatives (and options) in combination as part of an integrated pest
management Program.”
However, the DEIR also spoke of an apparently different Integrated Pest
Management (IPM), characterized as a “control” strategy that was therefore “not
evaluated further in the process to determine which tools would be used in the LBAM
8
Eradication Program. IPM as an approach to pest eradication provides the framework in
which individual tools were evaluated.”
The DEIR discussed a “No-Program Alternative” (NPA), whereby ongoing
activities of quarantine, detection, and inspection would continue, but without application
of the tools. Restrictions on domestic and foreign trade would increase. The DEIR
anticipated that, absent eradication, crops would be damaged and Californians would
increase private use of pesticides to control LBAM in yards and agricultural areas.
CDFA held public meetings and received numerous comments from the public.
On February 26, 2010, CDFA published the final EIR (FEIR). The FEIR noted it
had received comments that some experts opined eradication may not be feasible, but
CDFA was going to follow its own experts who opined the available tools should be
sufficient to accomplish the goal of eradication. (Guidelines, § 15151 [“Disagreement
among experts does not make an EIR inadequate, but the EIR should summarize the main
points of disagreement among the experts”].)
The FEIR stated: “The difference between control and eradication does not lie in
the tools used but rather in the scope and intensity with which the tools are used, as
explained below:
“In control programs the goal is to lower pest numbers below the economic injury
level in the crop areas. In control programs it is assumed that the growers can tolerate
some damage and that the pest will never be eliminated from the area. The tools are
applied only as long as necessary [emphasis added] to lower pest numbers, and they are
applied only to the crop to be protected. Pest populations outside the croplands are not
treated.
“Eradication uses the same tools but in a different fashion. In eradication
programs, the tools are applied to the entire pest population, not just part of it, and the
tools are consistently applied until the pest is entirely eliminated not just reduced to a
number below the chosen economic threshold. This approach has been successfully used
9
to eradicate numerous pests including but not limited to, Mexican bean beetle, Japanese
beetle, Hall scale, tulip tree scale, Mediterranean fruit fly, Mexican fruit fly, kharpa
beetle, and Caribbean fruit fly. International guidelines (ISPM #9 1998) pertain to how
eradication programs are conducted and what conditions must be met to declare
successful eradication. The programs conducted by USDA and CDFA meet these
guidelines.
“Eradicating a population of an exotic pest from California does not mean the pest
cannot reinvade the state. The Program has stated that it will conduct an annual review
each December of its progress and evaluate whether the goal of eradication still appears
to be attainable (CDFA Report to Legislature 2008). The latest available review was
conducted in December 2008.”
The public comments complained the DEIR did not analyze a reasonable range of
alternatives to the program, including an “Integrated Pest Management” (IPM) control
program, classic biological control, removing quarantine restrictions, and monitoring.
The final EIR responded IPM is “not a tool but an approach to controlling pests.
. . . ‘[It] first assesses the pest situation, evaluates the merits of pest management options
and then implements a system of complementary management actions within a defined
area. The goal of IPM is to mitigate pest damage while protecting human health, the
environment and economic viability.’ The components of an IPM program include
setting action thresholds, monitoring and detection, proper identification, and
action/implementation . . . . The tools used in an IPM program include biological control,
cultural controls such as clean culture and habitat manipulation, chemical controls
(including insect pheromones, pesticides, and biologically produced toxins), and genetic
control with resistant plants and quarantines (University of California IPM Program
2008; Ciborowski 2007).
“All CDFA insect eradication programs represent an integrated approach in which
action thresholds are set, detection and monitoring programs are established, target
10
organisms are properly identified, available tools are identified and evaluated for their
effectiveness and environmental impacts, and the program is then implemented. For
LBAM, the action threshold has changed from the detection of a single moth to the
detection of two or more moths within 3 miles of each other within a time period equal to
a single lifecycle. Detection and monitoring is done using over 40,000 traps statewide
baited with LBAM pheromone. Suspect LBAMs are sent to a CDFA expert for
identification. The first LBAM detected in each county is sent to USDA Systematic
Entomology Laboratory for confirmation. Like IPM programs, the LBAM Eradication
Program evaluated all available tools including insecticides for possible inclusion in the
LBAM Program.
“The main difference between classical IPM and CDFA eradication programs is
the desired endpoint. For IPM programs, the goal is to use one or more control measures
to lower the pest populations within the defined area below economically damaging
levels. It is assumed that some damage can be tolerated and that these measures will be
needed into the foreseeable future. For CDFA eradication programs, the goal is the
elimination of the pest so that control measures will not be needed at all. It is notable,
though, that the Program includes components, such as organically approved insecticides
and SIT, which many laypeople identify as ‘IPM’ techniques. While the identification of
these components as ‘IPM’ is not technically correct, the Program components do contain
environmentally sensitive, species-specific features that many people mistakenly identify
as ‘IPM.’ ”
In response to public comments about alternatives of removing quarantine
restrictions and monitoring, the final EIR responded, “neither are measures to physically
control LBAM populations. Rather, it simply provides some relief from the economic
harm that will be suffered by growers who would not be able to market their products due
to the quarantines.” The response further stated that reclassification to remove
quarantines would allow for a greater rate of spread; USDA was evaluating a petition for
11
reclassification; reclassification is outside the scope of CDFA’s authority; and “[b]ased
on the information available to CDFA regarding the potential threat to the environment
(including California’s native plants) and economy from LBAM, CDFA does not
consider reclassification a feasible alternative.” The response added that the current
trapping program was monitoring LBAMs’ spread; the county agricultural
commissioners were monitoring for damage caused by leafrollers and requesting
identification of larvae to determine if the damage was caused by LBAMs. “Because
monitoring will not accomplish the Program objective of eliminating the threats to the
economy and the environment posed by LBAM, CDFA does not consider it a feasible
alternative.”
On March 12, 2010, CDFA received advance notice of a new release issued by
USDA’s APHIS three days later, stating eradication of LBAMs was no longer feasible:
“[S]ince the pest was detected, LBAM has spread to such an extent in California that
eradication in the state is not feasible until new tools, such as sterile insect technology
[SIT], are fully developed and ready for widespread use in concern with currently
available methods. Therefore, APHIS is shifting to a control and suppression strategy
and will maintain its survey and regulatory framework, including enforcement of
phytosanitary measures, to ensure that LBAM is not spread to other states or trading
partners.”
On March 22, 2010, CDFA’s Secretary certified as complete the EIR for the
seven-year eradication program, declared it complied with CEQA, yet adopted findings
and approved a seven-year control program. The Findings approved a program for
containment, control, suppression, and eradication where feasible (i.e., small, discrete
infestations in outlying areas). Although the DEIR had stated eradication was
“fundamentally different” from control, CDFA now found the new objectives merely
“differ somewhat” from the objectives in the draft. CDFA stated that, while the scope of
the project was being reduced, all of the five remaining approved tools had been fully
12
analyzed in the draft and final EIRs and were applicable to the reduced program because,
as explained in the FEIR and Findings, “[t]he difference between control and eradication
does not lie in the tools used but rather in the scope and intensity with which the tools are
used.” “In control programs the goal is to lower pest numbers below the economic injury
level in the crop areas . . . . The tools are applied only as long as necessary to lower pest
numbers, and they are applied only to the crop to be protected. . . . [¶] Eradication uses
the same tools but in a different fashion. In eradication programs, the tools are applied to
the entire pest population . . . and the tools are consistently applied until the pest is
entirely eliminated not just reduced to a number below the chosen economic threshold.”
CDFA’s Findings stated, under a heading of “Other Alternatives Analyzed,
Considered and Rejected” that “ ‘Integrated Pest Management (IPM) is an approach
which first assesses the pest situation, evaluates the merits of pest management options
and then implements a system of complementary management actions within a defined
area. The goal of IPM is to mitigate pest damage while protecting human health, the
environment and economic viability.’ The components of an IPM program include
setting action thresholds, monitoring and detection, proper identification, and
action/implementation [citation]. Classical IPM programs may include biological
control, cultural controls such as clean culture and habitat manipulation, chemical
controls (including insect pheromones, pesticides, and biologically produced toxins), and
genetic control with resistant plants and quarantines [citation]. [¶] The Program
incorporates many of these features in that it includes an integrated approach in which
action thresholds are set, detection and monitoring programs are established, target
organisms are properly identified, available tools are identified and evaluated for their
effectiveness and environmental impacts, and the program is then implemented.
However, for IPM programs, in contrast to the proposed Program, control measures are
used to lower the pest populations within the defined area below economically damaging
levels. For IPM programs, [it] is assumed that some damage can be tolerated and that
13
these measures will be needed into the foreseeable future. [Italics added.] [¶] These
features of IPM are inconsistent with the Program’s objectives of containing, controlling,
suppressing, and eradicating LBAM populations within California. [Fn. omitted.]
Moreover, to the extent IPM programs include applications of pesticides and release of
biologically produced toxins, they may have potentially significant environmental
impacts, particularly on biological resources and water quality. Accordingly, IPM would
conflict with the Program objective of implementing the Program primarily through
biological control and other methods that can be applied in an effective and
environmentally safe and responsible manner, and IPM is environmentally inferior to the
alternatives proposed for implementation in the proposed Program. Consequently, this
alternative is rejected.”
This foregoing passage in the Findings included a footnote that “As noted in
Master Response C in the Final EIR, the elements of a classical IPM program include
biological control and use of insect pheromones and pesticides. Likewise, the
alternatives evaluated for potential implementation under the Program include elements
of biological control ( . . . Bio-P), use of insect pheromones ( . . . MD-1, MD-2, MD-3
and MMA), and use of pesticides ( . . . Btk and S). This overlap caused many members
of the public to be confused about whether the Program is an IPM program. The
Program is not an IPM program because the Program aims to use available tools to
eradicate LBAM populations where it is feasible to do so. However, the Program’s . . .
tools do include environmentally sensitive, species-specific features that many lay people
mistakenly identify as ‘IPM.’ ”
CDFA rejected the “No-Program Alternative,” because LBAM populations would
spread. Absent a CDFA-led effort to contain, control, and suppress LBAMs, the existing
quarantine, detection, and inspection activities mandated by regulations of CDFA,
Canada, and Mexico -- which are part of the environmental baseline -- would be
continued, and restrictions on domestic and foreign trade would increase as LBAM
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populations increased. Without a coordinated control program, a five to 20 percent crop
yield loss would be expected based on New Zealand’s experience. Spread of the pest
could impact grapes, citrus, peaches, plums, cherries, apricots, as well as trees such as
pine, cypress, and oak. If LBAM caused extensive damage to plants, it may have adverse
impacts on sensitive animals dependent on those plants for breeding, feeding, or shelter.
Almost every type of ornamental plant would be in danger of being damaged by LBAM
larvae. Given the risk of damage, it was “highly likely” that private individuals
(residential and commercial) would use insecticides to control LBAM.
CDFA concluded potential adverse impacts associated with the program could be
mitigated to a less-than-significant level through implementation of mitigation measures
(e.g., restricting pesticides during spawning seasons), and the program would not result in
any significant, unavoidable environmental impacts.
CDFA’s findings declared the program’s objectives to be to “protect the nation’s
food supply, and protect and promote California’s agricultural economy and the
environment by keeping LBAM from attaining damaging levels; [¶] contain, control and
suppress LBAM in areas where current LBAM population densities and the extent of the
contiguous spread of the pest make eradication infeasible at this time; [¶] eradicate
small, discrete LBAM populations within California; [¶] . . . [¶] protect California’s
natural resources . . . from environmental damage by LBAM; [¶] protect the larger
environment by preventing the expansion of LBAM to other states and areas; and [¶]
avoid the expense, environmental risks, and administrative difficulties of implementing
permanent quarantines and an agricultural inspection program to address persistent
LBAM populations statewide.”
Appellants filed their petitions for writ of administrative mandamus. The two
petitions were argued together, and the trial court issued a detailed decision denying the
petitions and entered judgments.
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DISCUSSION
I
Standard of Review
“ ‘In reviewing an agency’s compliance with CEQA in the course of its legislative
or quasi-legislative actions, the courts’ inquiry “shall extend only to whether there was a
prejudicial abuse of discretion.” (Pub. Resources Code, § 21168.5 . . . ; see Western
States Petroleum Assn. v. Superior Court (1955) 9 Cal.4th 559, 568; Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392-393
(Laurel Heights I).)
“ ‘An appellate court’s review of the administrative record for legal error and
substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial
court’s: The appellate court reviews the agency’s action, not the trial court’s decision; in
that sense appellate judicial review under CEQA is de novo. . . . We therefore resolve the
substantive CEQA issues . . . by independently determining whether the administrative
record demonstrates any legal error by the Department and whether it contains substantial
evidence to support the Department’s factual determinations.’ (Vineyard Area Citizens
for Responsible Growth, Inc. v. City of Rancho Cordova [(2007)] 40 Cal.4th [412,] 426-
427, fns. omitted.)” (Center for Biological Diversity v. Dept. of Fish and Wildlife (2015)
234 Cal.App.4th 214, 231-232 (Center for Biological Diversity, orig. brackets omitted.)
II
Distinction Between Program EIR and Project EIR
The EIR in this case was a program EIR, as opposed to a project EIR. A CEQA
“project” can be a program. A project EIR is typically used for a specific development
project. (Guidelines, § 15161.) In contrast, “[a] program EIR is an EIR which may be
prepared on a series of actions that can be characterized as one large project and are
16
related” in specified ways, including “[a]s individual activities carried out under the same
authorizing statutory or regulatory authority and having generally similar environmental
effects which can be mitigated in similar ways.” (Guidelines, § 15168, subd. (a).)
A program EIR has advantages for the public agency, in that it is possible to
conduct subsequent activities without preparing a new EIR if the agency finds that no
new effects could occur or no new mitigation measures would be required. (Guidelines,
§§ 15168(c); Center for Biological Diversity, supra, 234 Cal.App.4th at p. 233.)
A program EIR should contain a sufficient degree of analysis, in the light of what
is reasonably feasible, to provide decisionmakers with information that enables them to
make a decision which intelligently takes account of environmental consequences.
(Center for Biological Diversity, supra, 234 Cal.App.4th at p. 234.) “ ‘The courts have
looked not for perfection but for adequacy, completeness, and a good faith effort at full
disclosure.’ ” (Ibid., citing Guidelines, § 15151.)
III
Last-Minute Change
Appellants argue the last-minute change from eradication to control violated
CEQA in various ways, such as by rendering the project description unstable and
inaccurate, and by improperly “segmenting” the matter by studying a program of limited
duration but approving a program of unlimited duration. However, the approved program
was of limited duration of seven years.
On the other hand, appellants’ fear that the pest control activities may continue
after seven years without a new EIR is justified. CEQA Guidelines allow use of an
earlier EIR for later activities in some circumstances. (E.g., Guidelines, §§ 15153(a)
[“agency may use an earlier EIR prepared in connection with an earlier project to apply
to a later project, if the circumstances of the projects are essentially the same”], 15168(c)
[program EIR may be used for later activities, “and no new environmental document
17
would be required,” if agency finds no new effects would occur or no new mitigation
measures would be required].)
Here, we cannot accept the assurances of CDFA’s attorney at oral argument that a
new EIR will be prepared for any activity post-2017. The trial court asked for a
stipulation or stipulated order to that effect. (RT 17-20, 37-39, 56-58) CDFA drafted a
stipulation (North CoastAA 373) that it “hereby confirms that -- consistent with
paragraph 34 of [its] March 22, 2010 findings of fact [citation to administrative record]
and paragraph 6 of [its] March 22, 2010 certification of the certified EIR [citation to
administrative record] -- the LBAM program approved by [CDFA] on March 22, 2010,
will not continue beyond seven (7) years from the date the certified EIR was certified
(that is, beyond March 22, 2017), without the Department first undertaking further
environmental review under [CEQA].” (NCRA-AA 370) The referenced paragraph 34
stated, “The risk assessments for the PEIR analyzed the potential impacts associated with
implementing the Program for seven years. Since the starting date of the Program will be
2010, the Program could be implemented through 2017 within the scope of the analysis
of the risk assessments.” (AR 13-14) The referenced paragraph 6 stated, “Should
CDFA wish to continue implementing the Program’s alternative tools beyond the seven-
year period analyzed in the existing risk assessments, additional CEQA review may be
required.” (Italics added.) (AR 48)
Appellants opposed the proposed stipulation. (AA 375) Despite CDFA’s
equivocation, the trial court stated in its written ruling on the merits that additional
review after seven years is required by CDFA’s confirmation of the seven-year duration
of the approval. (AA 387-388)
CDFA continues to equivocate on appeal. Its appellate brief states, “if in 2017
CDFA determines the LBAM Program is still needed for the protection of the state’s
economy and environment, CDFA will conduct additional environmental review under
CEQA prior to continuing with the LBAM Program.” (NRB 12) Notably, CDFA does
18
not say such additional environmental review would take the form of a new EIR.
Additional review could mean CDFA considers whether a new EIR is needed and decides
no. This is apparent in CDFA’s further statement in its appellate brief, that it
“represented that at the end of seven years, it would re-evaluate the need for continued
action and any further environmental review.” (NRB 29)
We need not belabor appellants’ arguments that the last-minute change violated
CEQA; we will conclude that, even without the last-minute change, the EIR violated
CEQA, requiring reversal of the judgments. The last-minute change to a seven-year
program does not save CDFA from reversal, because there is no assurance that a CEQA-
compliant EIR will be prepared in the event of post-2017 activity.
IV
EIR Failed To Address Reasonable Range of Alternatives
Appellants complain the EIR violated CEQA by failing to consider a reasonable
range of alternatives in the DEIR, particularly a control program as an alternative to an
eradication program, and CDFA violated CEQA by failing to reconsider alternatives after
its last-minute change from an eradication program to a control program. We conclude
that, even before the last-minute change, the EIR was fatally defective in failing to
analyze a control program as a reasonable alternative to an eradication program.
A. CEQA Law Regarding Alternatives
The Legislature has declared it the policy of the state to “[r]equire governmental
agencies at all levels . . . to consider alternatives to proposed actions affecting the
environment.” (§ 21001, subd. (g).) “The Legislature finds and declares that it is the
policy of the state that public agencies should not approve projects as proposed if there
are feasible alternatives or feasible mitigation measures available which would
substantially lessen the significant environmental effects of such projects, and that the
procedures required by this division are intended to assist public agencies in
19
systematically identifying both the significant effects of proposed projects and the
feasible alternatives or feasible mitigation measures which will avoid or substantially
lessen such significant effects. The Legislature further finds and declares that in the
event specific economic, social, or other conditions make infeasible such project
alternatives or such mitigation measures, individual projects may be approved in spite of
one or more significant effects thereof.” (§ 21002; see also, Bay-Delta, supra,43 Cal.4th at p. 1169.)
The Guidelines provide: “An EIR shall describe a range of reasonable alternatives
to the project . . . which would feasibly attain most of the basic objectives of the project
but would avoid or substantially lessen any of the significant effects of the project, and
evaluate the comparative merits of the alternatives. An EIR need not consider every
conceivable alternative to a project. Rather it must consider a reasonable range of
potentially feasible alternatives that will foster informed decisionmaking and public
participation. An EIR is not required to consider alternatives which are infeasible. The
lead agency is responsible for selecting a range of project alternatives for examination
and must publicly disclose its reasoning for selecting those alternatives. There is no
ironclad rule governing the nature or scope of the alternatives to be discussed other than
the rule of reason. [Citation to case law.]” (Guidelines, § 15126.6, subd. (a), italics
added.) “The process of selecting alternatives to be included in the EIR begins with the
establishment of project objectives by the lead agency. ‘A clearly written statement of
objectives will help the lead agency develop a reasonable range of alternatives to evaluate
in the EIR and will aid the decision makers in preparing findings. . . . The statement of
objectives should include the underlying purpose of the project.’ ” (Bay-Delta, supra,
43 Cal.4th at p. 1163, italics added, citing Guidelines, § 15124, subd. (b).)
“The range of alternatives required in an EIR is governed by a ‘rule of reason’ that
requires the EIR to set forth only those alternatives necessary to permit a reasoned
choice. The alternatives shall be limited to ones that would avoid or substantially lessen
20
any of the significant effects of the project. Of those alternatives, the EIR need examine
in detail only the ones that the lead agency determines could feasibly attain most of the
basic objectives of the project. The range of feasible alternatives shall be selected and
discussed in a manner to foster meaningful public participation and informed decision
making.” (Guidelines, § 15126.6, subd. (f).)
“[I]nfeasible alternatives that do not meet project objectives need not be studied
even when such alternatives might be imagined to be environmentally superior. Tasked
with the study of a proposal to build a new shopping center, a public agency need not
study a fruit stand as an alternative.” (Saltonstall v. City of Sacramento (2015)
234 Cal.App.4th 549, 556-557, 576-577 (Saltonstall) [no need to study alternative of
remodeling existing basketball arena, because it would not meet city’s objective to create
an attraction to revitalize previously-blighted areas].)
B. Failure to Consider Control as an Alternative to Eradication
As indicated, the EIR confusingly mislabeled various tools for attacking LBAMs
as “alternatives” to the program. And the EIR rejected out of hand anything that would
not achieve complete eradication of the LBAMs, e.g., a control program of integrated
pest management.
The EIR did not decline to study control as an alternative to eradication on the
ground a control program would not lessen the environmental effects. Rather, the EIR
declined to evaluate a control program as an alternative on the ground it would not
achieve the stated goal of eradication. However, this position confuses the CEQA
project, objectives, and purposes.
The objective of the program was to protect California’s native plants and
agricultural crops from damage. That the DEIR defined the program “objective” as
“eradication” was an improper “artificially narrow” definition (Bay-Delta, supra,
43 Cal.4th at pp. 1163-1166), as is apparent from the DEIR’s distinction between
21
“objective” and “purpose” and relegation of plant/crop protection to a “purpose” as
opposed to an “objective.” Thus, the DEIR stated:
“PROGRAM OBJECTIVES AND PURPOSE
“The CDFA’s objective is to eradicate LBAM from the state of California by
[2017]. Initial efforts will be to contain the LBAM population and not allow LBAM to
spread into adjacent counties. The CDFA will then suppress heavily infested areas
around production nurseries, suppress and eradicate populations in outlying counties to
remove these counties from regulation, and finally eradicate populations throughout the
state. Eradication is to be accomplished using a variety of tools with reliance primarily
on biological control methods applied in an effective and environmentally safe manner.
[¶] The Program is needed to protect the state’s native plants, forest species,
agronomically important crops, and ornamental plants from damage by this invasive pest
species. The CDFA must protect agriculture from invasive pests to protect the nation’s
food supply, the environment, and the economy. Furthermore, eradication of the pest
within the state is needed to prevent its expansion to other states and other countries.”
Thus, the EIR purports to view eradication as the “objective” and protection of
crops/plants as the “purpose.” However, “ ‘The statement of objectives should include
the underlying purpose of the project.’ ” (Bay-Delta, supra, 43 Cal.4th at p. 1163, citing
Guidelines, § 15124, subd. (b).)
Moreover, “[a] lead agency may not give a project’s purpose an artificially narrow
definition.” (Bay-Delta, supra, 43 Cal.4th at p. 1166.) An agency “may structure its EIR
alternative analysis around a reasonable definition of underlying purpose and need not
study alternatives that cannot achieve that basic goal. For example, if the purpose of the
project is to build an oceanfront resort hotel [citation] or a waterfront aquarium [citation],
a lead agency need not consider inland locations. [Citation.]” (Bay-Delta, supra,
43 Cal.4th at p. 1166.)
22
Bay-Delta involved a long-term, comprehensive plan to restore the Bay-Delta’s
ecological health and improve management of Bay-Delta water for the various beneficial
uses that depend on it. (Id. 43 Cal.4th at pp. 1151-1152.) The Supreme Court held the
failure to examine in detail a program alternative requiring reduced water exports from
the Bay-Delta was not an abuse of discretion, because that alternative would not achieve
the program objective of water supply reliability, i.e. reduction of the mismatch between
Bay-Delta water supplies and the current and project beneficial uses dependent on the
Bay-Delta system. (Id. at pp. 1163-1166.)
Here, in contrast, protection of plants and crops were clearly objectives and the
underlying purpose of the eradication program.
Moreover, the goal of eradication was always known to be tenuous, because
LBAMs kept spreading despite the emergency treatments authorized by the Legislature,
spreading to more counties during the DEIR process, and the Legislature required CDFA
to monitor LBAMs on an annual basis. Additionally, the DEIR’s appendix on the
process used to select tools acknowledged that “if an exotic pest becomes permanently
established in California, control measures will be needed forever.”
That defining the objective as eradication was “artificially narrow” is further
apparent from the fact that the last-minute change did not describe the revised program
objective as simply “to control” LBAMs. Rather, CDFA’s own Findings in approving
the control program acknowledge “As revised, the objectives [italics added] of the
LBAM Program [include]: [¶] protect the nation’s food supply, and protect and promote
California’s agricultural economy and the environment by keeping LBAM from attaining
damaging levels; [¶] . . . [¶] protect California’s natural resources . . . from
environmental damage by LBAM; [¶] [and] protect the larger environment by
preventing the expansion of LBAM to other states and areas . . . .”
23
A control program should have been studied as an alternative to eradication,
particularly given the EIR’s acknowledgement that eradication could become
unattainable at any time.
It is possible a control program may not be a viable alternative on the ground its
unending nature would be more harmful to the environment than an eradication program.
On the other hand, it could be that an eradication program would require more intensive
application of tools than a control program, leveling out the environmental impacts. We
do not know, because CDFA skirted the issue. Had CDFA evaluated a “control” program
as an alternative to an “eradication” program, CDFA may have rejected a control
program on the ground the unending nature of it would be more harmful to the
environment. At least that is the inference to be drawn from the EIR’s drumbeat
distinguishing the two. But that just goes to show the prejudice of CDFA’s last-minute
shift from eradication to an unstudied control program.
We conclude the EIR violated CEQA by failing to study control as an alternative
to eradication. That error infected the entire EIR insofar as it dismissed out of hand
anything that would not achieve complete eradication of LBAMs. The last-minute
change to the control program made the CEQA violation unequivocally prejudicial
requiring reversal, as we next discuss.
C. Prejudice
Section 21005 provides: “(a) The Legislature finds and declares that it is the
policy of the state that noncompliance with the information disclosure provisions of this
division which precludes relevant information from being presented to the public agency,
or noncompliance with substantive requirements of this division, may constitute a
prejudicial abuse of discretion within the meaning of Sections 21168 and 21168.5,
regardless of whether a different outcome would have resulted if the public agency had
complied with those provisions. [¶] (b) It is the intent of the Legislature that, in
24
undertaking judicial review pursuant to Sections 21168 and 21168.5, courts shall
continue to follow the established principle that there is no presumption that error is
prejudicial. [¶] (c) It is further the intent of the Legislature that any court, which finds,
or, in the process of reviewing a previous court finding, finds, that a public agency has
taken an action without compliance with this division, shall specifically address each of
the alleged grounds for noncompliance.”
In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority
(2013) 57 Cal.4th 439 (Neighbors for Smart Rail), a plurality of the court discussed
prejudice in the CEQA context, that an omission in an EIR (in that case, an omission in
significant impacts analysis) “is deemed prejudicial if it deprived the public and decision
makers of substantial relevant information about the project’s likely adverse impacts.
Although an agency’s failure to disclose information called for by CEQA may be
prejudicial ‘regardless of whether a different outcome would have resulted if the public
agency had complied’ with the law (§ 21005, subd. (a)), under CEQA ‘there is no
presumption that error is prejudicial’ (§ 21005, subd. (b)). Insubstantial or merely
technical omissions are not grounds for relief. [Citation.] ‘A prejudicial abuse of
discretion occurs if the failure to include relevant information precludes informed
decisionmaking and informed public participation, thereby thwarting the statutory goals
of the EIR process.’ [Citation.]” (Neighbors for Smart Rail, supra, 57 Cal.4th at p. 463
[EIR’s use exclusively of future conditions baseline to analyze traffic congestion impacts
was not prejudicial, where EIR demonstrated lack of grounds to suppose analysis of
existing traffic conditions would have produced any substantially different information].)
The burden is on the agency to establish lack of prejudice. (Environmental
Protection Information Center v. California Dept. of Forestry and Fire Protection (2008)
44 Cal.4th 459, 488; Laurel Heights I, supra, 47 Cal.3d at p. 488.)
Here, the prejudice in the EIR’s failure to address control as an alternative to
eradication is apparent, because the EIR dismissively rejected anything that would not
25
achieve eradication. As we discuss post, this prejudice was compounded because the
EIR’s cumulative impacts discussion failed to address the reasonably foreseeable need
for continued control activities. Accordingly, CDFA’s ultimate selection of an
alternative (control program) not analyzed in the EIR left the EIR inadequate as failing to
include relevant information and precluding informed decisionmaking and informed
public participation.
The last-minute change from an eradication program to a control program did not
cure the prejudice. Chaparral Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134(Chaparral Greens) held the failure to revise an EIR based on new information did not
violate CEQA, because substantial evidence supported the agency’s decision that the new
information was insignificant. (Id. at pp. 1147-1148.) Here, the new information was
clearly significant, since it caused CDFA to change the program. Although CDFA claims
the change reduced the scope of the program, appellants make the plausible argument
that the change expanded the scope of the program into one of indefinite duration. The
manner in which CDFA conducted the environmental review process -- ignoring
anything that would not achieve eradication -- leaves the record without substantial
evidence to support CDFA’s claim.
Though not cited by the parties, we discussed the situation where a public agency
selected an alternative not analyzed in the EIR based on new information, in Western
Placer Citizens for an Agricultural and Rural Environment v. County of Placer (2006)
144 Cal.App.4th 890 (Western Placer CARE).)
In Western Placer CARE, supra, 144 Cal.App.4th 890, we held a county’s EIR
analyzing a proposed aggregate mine did not violate CEQA by failing to include and
analyze a revised project description submitted by the developer after the final EIR was
prepared. A “mitigated design alternative” had been selected as the project description
because of its ability to reduce and/or eliminate significant effects. (Id. at p. 896.) But as
the environmental review process progressed, the developer proposed to implement the
26
mitigated design alternative but with change in phasing to avoid mining on lands affected
by conservation laws. (Id. at p. 894.) The final EIR said the project could avoid those
conflicts by delaying mining on those lands affected by conservation contracts. The final
EIR did not, however, include a revised description reflecting the developer’s decision to
proceed with that suggestion and change its phasing to avoid the affected lands, nor did
the EIR analyze whether the change in phasing created additional impacts. (Ibid.) The
developer submitted a revised project application to implement the mitigated design
alternative with the changes, which became known as the “revised mitigated design
alternative.” (Id. at pp. 894-895.) The county then certified the EIR and approved the
project, finding the revisions did not result in any additional impacts. (Id. at pp. 895,
896.) The trial court determined the EIR violated CEQA by not identifying and
addressing the new phasing. (Id. at pp. 895-896.) We disagreed and held CEQA does
not per se require a revised project description be included in the final EIR itself, and
substantial evidence in the record demonstrated the changed phasing was not significant
new information requiring additional analysis in, or recirculation of, the final EIR. (Ibid.)
Here, in contrast, the record does not contain evidence demonstrating the change
from eradication to control was insignificant.
CDFA cites case law finding there was no error where the approved project was
narrower than the EIR’s project description. (E.g., Dusek v. Redevelopment Agency of
City of Anaheim (1985) 173 Cal.App.3d 1029, 1040 [EIR described acquisition and
demolition of multiple buildings but agency approved only the demolition of one
building].)
However, we cannot tell whether the approved control program was narrower than
the EIR’s described eradication program, because the EIR expressly declined to evaluate
a control program as an alternative to an eradication program. CDFA’s findings stated
the difference between eradication and control was in the intensity, in that control is less
intensive than eradication. CDFA claims the change reduced the scope of the project:
27
“The difference between control and eradication does not lie in the tools used but in the
intensity of their use. Control targets a portion of the pest population, while eradication
targets the entire pest population. Thus, the PEIR analyzed a more intense Program than
CDFA is now proposing to implement. The environmental impacts of the reduced
Program will be no greater than -- and will almost certainly be less than -- the
environmental impacts of the more aggressive Program analyzed in the PEIR.” (Orig.
italics.) This was supposition on CDFA’s part. CDFA does not direct our attention to
anything in the record that would constitute substantial evidence supporting this
supposition.
Instead, the record supports an opposing inference that a control program may be
more harmful to the environment than an eradication, because the EIR acknowledged a
control program would need to go on “forever.”
We conclude the EIR was fatally defective in failing to study a range of reasonable
alternatives.
We continue on with appellants’ other contentions as needed to comply with
section 21005, subdivision (c), which requires us to address other contentions despite
finding reversible error as to one contention.
V
The “No Program Alternative” (NPA)
A. Substantial Evidence
Appellants argue no substantial evidence supports two assumptions CDFA made
about potential impacts of the “No-Program Alternative” (NPA) of doing nothing about
LBAMs. NCRA claims CDFA merely assumed based on “flawed studies and
unsubstantiated claims” that doing nothing would cause (1) a dramatic increase in private
pesticide use and (2) crop damage and reduced agricultural revenues. We see no reason
to reverse the judgment on this ground.
28
Under CEQA, “substantial evidence” is “enough relevant information and
reasonable inferences from this information that a fair argument can be made to support a
conclusion, even though other conclusions might also be reached.” (Guidelines, § 15384,
subd. (a).) Thus, appellants’ references to evidence they think support different
conclusions is unavailing.
Substantial evidence includes facts, reasonable assumptions predicated upon facts,
and expert opinion supported by facts. (§ 21082.2, subd. (c); Guidelines, § 15384, subd.
(b).) It does not include “[a]rgument, speculation, unsubstantiated opinion or narrative,
evidence which is clearly inaccurate or erroneous, or evidence of social or economic
impacts which do not contribute to, or are not caused by, physical impacts on the
environment. . . .” (§ 21082.2, subd. (c); accord, § 21080, subd. (e)(2).)
1. Crop Damage
Appellants claim there was only one incident of crop damage, which “ultimately
proved to be from a different insect.” The DEIR acknowledged it used evidence from
outside California due to the lack of any published studies of crop damage caused by
LBAMs in California.
In light of our conclusion that the program cannot continue without further
environmental review, we need not address sufficiency of evidence regarding crop
damage, because there is doubtless new information on this point since the EIR was
certified.
2. Private Use
As to anticipated private pesticide use in the absence of CDFA action, the EIR
separately addressed urban and agricultural uses. For private urban use, the EIR relied
on studies performed in 2001-2003 by University of California scientists Cheryl Wilen
and Mary Louise Flint, as analyzed by LBAM Program Director Robert Dowell in his
April 2008 “Calculation of the Potential Increase in Urban Homeowner Pesticide Use
29
Caused by a Generalized [LBAM] Infestation in Coastal California.” For private
agricultural use, the EIR relied on a University of California report (Johnson et al. 2007)
and literature from the USDA, Australia, and New Zealand.
Appellants do not always make clear whether they are arguing about urban or
agricultural use. They complain the studies showed that most private urban pesticide use
targeted ants, and only three to seven percent targeted plant-pests. Appellants claims the
existing pesticide use against plant-pests should have been considered part of the
environmental baseline, but CDFA instead extrapolated it to project increased pesticide
use. However, existing use was considered a baseline. Moreover, that increased pests
will mean increased pesticide use is a reasonable assumption.
OCEF maintains no additional spraying would be needed for individuals who
already spray for backyard pests, because any current pesticide would likely kill LBAM
as well. However, OCEF does not direct our attention to anything in the multiple cited
pages that supports this assertion.
OCEF’s claims “[t]he point is that CDFA’s assumed increase in private pesticide
use would also occur under the Program because LBAM will continue to exist even under
the Program. During the eradication program, increased private pesticide use would have
occurred until LBAM eradication. Now that the goal is control, such increased private
pesticide use will potentially occur indefinitely because LBAM will never be eradicated.
Yet CDFA did not consider any increased private pesticide use when analyzing Program
impacts, thereby artificially inflating pesticide impacts under the No Program scenario
and artificially minimizing impacts under the Program scenario.” (Orig. emphasis.)
However, it is OCEF which is making an unsupported assumption that, because LBAM
will continue to exist despite the Program, then the projected increase in private use will
occur with or without the Program. OCEF cites no supporting evidence. The projection
of increased private use was the expectation in the absence of a program -- i.e., if the
government does not take action, private citizens will.
30
OCEF argues there was no evidence private pesticide use would increase, because
a UC Study concluded, “[a]lthough LBAM attacks many types of plants, it is not likely to
cause serious damage to them in backyard situations. In many cases, treatment would not
be needed in backyards.”
OCEF argues the Dowell Report “speculated” that private individuals would use
the “highly toxic pesticides permethrin or chlorpyrifos,” whereas it was not known what
people were then using. However, the EIR merely listed chlorpyrifos among the
registered products that consumers “may” use and stated it was using permethrin as a
“representative material.” Though OCEF cites evidence that use of permethrin had
decreased from 2002 to 2007, the record contains reports of the U.S. Environmental
Protection Agency that individuals used about two million pounds of permethrin
annually, over 70 percent of which was used in non-agricultural settings, and 41 percent
of which was applied by homeowners in residential areas. CDFA selected permethrin
because it is a broad-spectrum pesticide that kills LBAM and is readily available to and
commonly used by consumers, and CDFA planned to use it. It was reasonable for CDFA
to use permethrin as representative in light of the evidence.
OCEF argues there was no evidence that farmers would increase pesticide use in
the absence of a program, because there was no evidence the LBAM had caused any crop
damage, and the only cited incident of damage was ultimately shown to be from a
different insect. OCEF’s appellate brief argues LBAM “is primarily located in two
counties,” so there is no evidence supporting a conclusion of increased pesticide use by
farmers. The reference to two counties is perplexing, since LBAM had already spread to
13 counties during the review process.
In any event, we conclude appellants’ claims of insufficiency of the evidence do
not constitute a separate ground for reversal of the judgment.
31
B. Asserted Effect of Quarantines on No-Program Alternative (NPA)
In 2007, CDFA and USDA established quarantines that required “trapping,
inspection, and certification of all nursery stock and host commodities” in eight counties.
The quarantines later expanded to 13 counties and were to continue throughout the seven-
year program.
OCEF argues the NPA was defective in failing to consider how the quarantines
would affect LBAM spread under the no-program alternative. OCEF claims, “Because
CDFA and USDA’s quarantines will prevent this spread, even if only to some extent,
CDFA’s conclusions about private pesticide use are wrong, and its No Program analysis
is flawed.” OCEF cites Planning and Conservation League v. Dept. of Water Resources
(2000) 83 Cal.App.4th 892, as holding an EIR proposing new water shortage protocols
was deficient for failing to analyze the impact of existing water shortage protocols under
the “no-project alternative.” (Id. at pp. 915-916.)
However, in this case the record shows LBAMs continued to spread throughout
California during the environmental review process, despite the quarantines, increasing
from 10,000 to more than 71,000 in two years.
We conclude appellants fail to show reversible error regarding the No-Program
Alternative.
VI
Asserted Failure to Analyze Impacts
NCRA argues the EIR failed adequately to analyze impacts on several points,
while OCEF makes this argument as to one point (site-specific impacts). We see no need
to reverse the judgments on these grounds, though we do not foreclose the possibility that
updated evidence may alter the analysis in the event CDFA proceeds with further
environmental review in order to continue its control program.
32
A. Twist-Tie Tool (MD-1)
CDFA found using plastic twist-ties attached to aluminum wire and infused with
LBAM pheromone on trees and shrubs would not result in significant impacts, because
they would be used only to address “small isolated infestations,” and they do not kill
LBAMs but disrupt mating behavior thus diminishing the likelihood of successful
reproduction. The pheromone degrades over time. Twist-ties are placed by hand and
retrieved after three to six months. A search can be conducted if any are missing. A
potential exists for ingestion by birds, but the twist-ties lack flavor and were not likely to
be swallowed. The twist-ties are placed six to eight feet off the ground and therefore not
likely to be ingested by animals. Toxicity studies of twist-ties under federal law (Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136a, subd. (c)(5)) and
under the California Department of Fish and Game Pesticide Investigations Unit
indicated they were not harmful except at high doses, which were not expected in this
case due to CDFA’s commitment to remove the twist-ties.
NCRA argues retrieving 250 twist-ties per acre in densely vegetated or populated
areas is easier said than done, and new ones will be placed as old ones are retrieved, and
the plastic and metal parts of the twist-ties will not degrade, and the twist-ties have a
sweet odor, and the EIR does not explain why birds but not mammals might consume
them. However, the EIR did explain mammals were unlikely to ingest twist-ties because
they are not flavored and are placed off the ground. Appellants complain the EIR did not
evaluate the twist-ties’ inert ingredients, which were trade secrets unknown to the parties.
However, CDFA notes the entire formulation of the product was tested in the pesticide
product registration process. Moreover, none of appellants’ arguments render the EIR
defective. We do not pass upon the correctness of the EIR’s environmental conclusions,
but only upon its sufficiency as an informative document. (Chaparral Greens, supra,
50 Cal.App.4th at p. 1145.) CEQA requires an EIR to reflect a good faith effort at full
33
disclosure; it does not mandate perfection, nor does it require an analysis to be
exhaustive. (Ibid.)
B. Ground Application Tool (MD-2)
NCRA argues the EIR failed adequately to address impacts of MD-2, application
of chemical pheromones (Hercon Bio-Flake and SPLAT) to trees and shrubs in
residential yards and telephone poles and trees on public property along roads.
NCRA complains the EIR said potential ingestion of significant quantities of
Hercon Bio-Flake was extraordinarily small because a “very low number of flakes”
would be applied per acre, “approximately 1 cup.” NCRA complains the volume of these
tiny flakes is a “meaningless statistic” that reveals nothing about the actual number of
flakes. NCRA fails to persuade us why this should matter.
NCRA argues the evidence does not support the conclusions about toxicity of
Hercon Bio-Flake and SPLAT. However, we are hard pressed to find support for
NCRA’s position in the few pages of the record cited by NCRA, and the record contains
much evidence, including toxicity assessments, not cited by NCRA. NCRA has thus
forfeited its substantial evidence claim. (State Water Resources Control Board Cases
(2006) 136 Cal.App.4th 674, 749-750 [CEQA does not exempt appellants from ordinary
rule that substantial evidence argument is forfeited by failing to cite all material evidence
on the subject].) “[T]he burden to provide a fair summary of the evidence ‘grows with
the complexity of the record.’ ” (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th
1640, 1658.) That certainly applies here, where the administrative record exceeds 70,000
pages.
C. Aerial Spraying Tool (MD-3)
NCRA argues the EIR inadequately analyzed the MD-3 tool of aerial spraying of
Hercon Bio-Flake or SPLAT. However, CDFA Findings stated it would not use this tool.
We therefore need not consider the contentions on appeal. We disregard the argument in
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NCRA’s reply brief, unsupported by any evidence or authority whatsoever, that maybe
CDFA (having found the tool was not feasible “at this time”) will change its mind and
use the trial court’s ruling upholding adequacy of the EIR’s discussion of MD-3 as a bar
to any future challenge.
D. Organically approved Insecticide Tools (Btk and S)
NCRA argues the EIR inadequately analyzed the impacts of insecticides Btk and
S. on non-target species such as butterflies, bees, and birds. The EIR stated that impacts
were considered less than significant due, in part, to the “short-term length of the
Program.” NCRA argues the last-minute change from eradication to control renders this
conclusion defective now that CDFA has approved a program “of indefinite duration.”
However, CDFA approved only a seven-year program.
NCRA also argues no evidence supports the conclusion that “highly localized”
spraying will avoid significant impacts to non-target species, and there was no evidence
of how far the spray will drift. However, as CDFA points out, NCRA fails to cite
evidence studying drift and has therefore forfeited the contention.
E. Sterile Insect Technique Tool (SIT)
SIT would produce and release millions of sterile moths. NCRA argues the EIR
failed to analyze impacts of the reasonably foreseeable accidental release of fertile moths,
development of asexually-reproducing LBAM, and resistance of LBAM to the radiation
rendering them sterile. NCRA cites its own comment letter asserting a sterilization
accident occurred in 2003, resulting in the release of fertile flies around a Mexico facility.
However, the EIR explained quality control procedures in California were more effective
than in Mexico.
In its reply brief, NCRA says its comment letter also cited a report of an accidental
release in California. However, NCRA forfeited this point by failing to include it in the
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opening brief. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10 [appellant may
not raise new argument in reply brief].)
NCRA complains CDFA did not disclose the contents of the “emergency plan” it
stated it has for dealing with the remote possibility of accidental release during transport.
The final EIR referred to “Chapter 6 - Hazardous Materials.” CDFA submitted the
emergency plan to the trial court with a declaration stating it was inadvertently omitted
from the administrative record. To the extent NCRA suggests it was not made available
to the public, our reversal renders the point moot.
F. Site-Specific Impacts
Appellants argue the EIR is defective because it does not discuss site-specific
impacts. We conclude appellants fail to show reversible error on this basis.
The EIR stated site-specific evaluation was beyond the scope of this programmatic
evaluation. The EIR identified a number of likely areas that would be subject to program
activities, stated it was impossible to determine in advance where all LBAM populations
will occur, and promised that prior to deploying treatments CDFA would follow
notification procedures to local elected officials, the agricultural commissioner, and
affected residents and would hold informational open houses for residents. The final EIR
noted the DEIR evaluated the significance of impacts of each tool in various types of land
use and topography.
CEQA does not require identification of every possible treatment site.
(Guidelines, § 15151 [“An evaluation of the environmental effects of a proposed project
need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of
what is reasonably feasible”].) The level of specificity is determined by the nature of the
project and the rule of reason, not by any semantic label. (Laurel Heights I, supra,
47 Cal.3d at p. 407.)
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After briefing was completed in this case, we recently held in Center for
Biological Diversity, supra, 234 Cal.App.4th 214, that a fish hatchery and stocking
enterprise of the Department of Fish and Wildlife was an appropriate project for a
program EIR. The Center argued the EIR was inadequate because it did not contain site-
specific analysis for each water body to be stocked, and it deferred that analysis until the
Department performed for each site an “evaluation protocol” described in the EIR. (Id. at
p. 237.) We found the EIR adequate. We distinguished our earlier opinion in Friends of
Mammoth v. Town of Mammoth Lakes Redevelopment Agency (2000) 82 Cal.App.4th 511(Friends of Mammoth), where we held inadequate a program EIR for a redevelopment
plan containing detailed descriptions of 72 different projects, where the EIR did not
review potential impacts from any of the 72 projects to the extent information was known
or could reasonably be known. (Id. at p. 535.) Unlike Friends of Mammoth, the EIR in
Center for Biological Diversity analyzed every impact that reasonably could occur by
stocking fish in any water body in the state based on the information currently known.
(Center for Biological Diversity, supra, 234 Cal.App.4th at p. 237.) Due to the nature of
the project, the EIR explained what the impacts would likely be to “decision species”
(threatened amphibian or other species that may be harmed by stocking the water body
with fish) at any site where the Department operated hatcheries and stocked fish. (Id. at
pp. 227, 237.) “Site-specific analysis will likely not reveal any unanticipated impacts;
instead, it will reveal whether the impacts discussed in the EIR are occurring at that site.”
(Id. at p. 237.)
The Center complained that if site-specific analysis were not done during the EIR
process, it may never be done or done in a way allowing public input. (Center for
Biological Diversity, supra, 234 Cal.App.4th at p. 238.) We said CEQA does not require
additional site-specific environmental review if the agency determines the site-specific
impacts were sufficiently addressed in the program EIR, nor does it require that
determination to be made in a public process. (Ibid.) Only if the agency discovers new
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impacts will they be addressed in a public process. (Ibid.) “When a program EIR is used
to avoid preparing subsequent EIR’s, such as here, the public agency must examine site-
specific program activities ‘in the light of the program EIR to determine whether an
additional environmental document must be prepared.’ (CEQA Guidelines, § 15168,
subd. (c).) If the site-specific activity will not create effects or require mitigation
measures that were not discussed in the program EIR, the public agency is not required to
prepare any other site-specific environmental document. (CEQA Guidelines, § 15168,
subd. (c)(2).)” (Center for Biological Diversity, supra, 234 Cal.App.4th at p. 238.)
“In effect, after a sufficiently comprehensive and specific program EIR has been
certified, CEQA allows much of the initial site-specific review to occur outside a formal
CEQA process and beyond public view. CEQA does not require the Department to
engage in a public process when it determines whether the impacts from a site-specific
project were addressed and adequately mitigated in the program EIR. And if the
Department finds the impacts were addressed, it need not prepare a new environmental
document at all.” (Center for Biological Diversity, supra, 234 Cal.App.4th at p. 239.) To
require a project-specific EIR for all sites proposed after certification of the program EIR,
even where the subsequent activity is within the scope of the project described in the
program EIR, would contravene one of the essential purposes of program EIRs, i.e., “ ‘to
streamline environmental review of projects within the scope of a previously completed
program EIR. We conclude that a program EIR may serve as the EIR for a subsequently
proposed project to the extent it contemplates and adequately analyzes the potential
environmental impacts of the project. . . .’ [Citation.]” (Ibid.)
Before the Department would stock a water body, it would utilize the “evaluation
protocol” -- a checklist to document site-specific impacts and determine whether they
were sufficiently analyzed in the program EIR -- to determine if any “decision species”
were present. If they were present, the agency would determine whether stocking would
have a substantial environmental effect, a review that “will by necessity include
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application of the impacts analysis contained in the EIR, as well as a determination of any
other impacts that may not have been addressed in the EIR. This is exactly the type of
process CEQA requires an agency to utilize outside of public review when it intends to
approve a site-specific project that is part of a program previously reviewed in a program
EIR. If the Department upon using the evaluation protocol discovers an impact that was
not sufficiently addressed in the EIR, it will then be obligated to begin a CEQA process,
but only if the Department intends to approve the activity.” (Center for Biological
Diversity, supra, 234 Cal.App.4th at p. 239.)
We conclude appellants fail to show reversible error in the EIR’s impacts analysis.
VII
Cumulative Impacts
NCRA argues the EIR’s cumulative impacts analysis violated CEQA by failing to
address (1) the synergistic effects of the project, and (2) individually minor but
collectively significant cumulative impacts. OCEF argues the cumulative impacts
analysis violated CEQA by (1) failing to use one of two methods (the list method or the
summary-of-projections method) in Guidelines, §15130, subd. (b), and (2) failing to
discuss ongoing programs targeting other pests.
We need not address these contentions.
As indicated, section 21005, subdivision (c), provides that any court that finds a
CEQA violation “shall specifically address each of the alleged grounds for
noncompliance.” However, section 21005 does not require us to address additional
alleged defects that may be addressed in a completely different and more comprehensive
manner upon further CEQA review following remand. (Communities for a Better
Environment, supra, 184 Cal.App.4th at pp. 101-102.)
Our finding of reversible error (in the EIR’s failure to analyze a control program
as an alternative to an eradication program) necessarily requires a new cumulative
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impacts discussion in the event CDFA undertakes the further environmental review
needed to proceed with the program.
Thus, the cumulative impacts discussion in an EIR must discuss incremental
impacts of the project when added to other, closely related past, present, and reasonably
foreseeable probable future projects. (§ 21083, subd. (b)(2).) “An EIR shall discuss
cumulative impacts of a project when the project’s incremental effect is cumulatively
considerable, as defined in section 15065(a)(3) [cumulatively considerable means ‘the
incremental effects of an individual project are significant when viewed in connection
with the effects of past projects, the effects of other current projects, and the effects of
probable future projects’]. Where a lead agency is examining a project with an
incremental effect that is not ‘cumulatively considerable,’ a lead agency need not
consider that effect significant, but shall briefly describe its basis for concluding that the
incremental effect is not cumulatively considerable. . . .” (Guidelines, § 15130, subd. (a),
italics added.) “ ‘Cumulative impacts’ refer to two or more individual effects which,
when considered together, are considerable or which compound or increase other
environmental impacts. [¶] (a) The individual effects may be changes resulting from a
single project or a number of separate projects. [¶] (b) The cumulative impact from
several projects is the change in the environment which results from the incremental
impact of the project when added to other closely related past, present, and reasonably
foreseeable probable future projects. Cumulative impacts can result from individually
minor but collectively significant projects taking place over a period of time.”
(Guidelines, § 15355.)
Here, any revised cumulative impacts discussion will have to include the
reasonably foreseeable need to continue anti-LBAM activities after expiration of the
seven-year period and into the foreseeable future, as acknowledged in the EIR (“if an
exotic pest becomes permanently established in California, control measures will be
needed forever”).
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Moreover, CDFA’s own argument in effect acknowledges the current cumulative
impacts discussion for a control program will be different from the discussion for the
eradication program, because the EIR and CDFA’s findings stated a control program and
an eradication differ in “intensity.” While CDFA claims a control program is less
intense, appellants disagree, and the manner in which CDFA has conducted the
environmental review leaves the record bereft of evidence to resolve the dispute.
On appeal, CDFA does not try to argue that the program could continue without
incremental impacts. Instead, CDFA argues it is speculative whether the program will
have to continue after the seven-year period. This argument is disingenuous, given the
EIR’s statements that an eradication program was chosen specifically to avoid the
unending nature of a control program that would have to go on forever. CDFA also
argues the exact details of a continued program would be too speculative to study.
However, the exact details need not be known with certainty; what matters is what is
reasonably foreseeable.
VIII
Summary
We conclude the EIR violated CEQA by failing to analyze a control program as an
alternative to an eradication program, with the consequence that the EIR dismissively
rejected anything that would not achieve full eradication. The error was prejudicial,
requiring reversal of the judgments. CDFA’s last-minute change from an eradication
program to a control program did not cure the prejudice, because the EIR dismissively
rejected control feature that would not achieve eradication, and the EIR’s cumulative
impacts discussion did not address the reasonably foreseeable need to continue pest
control efforts after expiration of the seven-year period.
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DISPOSITIONS
The judgment against the NCRA appellants is reversed and the matter remanded to
the superior court with directions to enter a new judgment granting the writ petition.
Appellants shall recover costs on appeal. (Cal. Rules of Court, rule 8.278.)
The judgment against the OCEF appellants is reversed and the matter remanded to
the superior court with directions to enter a new judgment granting the writ petition.
Appellants shall recover costs on appeal. (Cal. Rules of Court, rule 8.278.)
HULL , J.
We concur:
RAYE , P. J.
BLEASE , J.
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