Sierra Club v. County of Fresno

Filed 12/22/20 (unmodified opinion attached)
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
SIERRA CLUB et al.,
F079904
Plaintiffs and Respondents,
(Super. Ct. No. 11CECG00706)
v.
COUNTY OF FRESNO et al., ORDER MODIFYING
OPINION AND DENYING
Defendants;
PUBLICATION REQUESTS
FRIANT RANCH, L.P., [NO CHANGE IN
JUDGMENT]
Real Party in Interest and Appellant.
THE COURT:
It is ordered that the opinion filed herein on November 24, 2020, be modified as
follows:
On page 33, insert the following paragraph to the end of part II.B.5. immediately
before the Disposition heading:
Finally, issues involving the application of section 21166
(supplemental and subsequent EIR’s) or Guidelines section 15162
(subsequent EIR’s) were not represented in this appeal. Therefore, this
opinion expresses no views on how those provisions should be applied in
the further proceedings after remand.
There is no change in the judgment.
The requests for publication of parts I. and II.A. of the Discussion and
depublication of part II.B.5. of the Discussion filed on December 11, 2020 and December
14, 2020, are hereby denied. Part II.B.5. is modified as stated above.
In compliance with California Rules of Court, rule 8.1120(b), the Clerk/Executive
Officer of this court shall transmit copies of the request for publication, the opinion, and
this order to the Supreme Court.
FRANSON, J.
I CONCUR:
HILL, P.J.
2.
Filed 11/24/20 (unmodified opinion)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
SIERRA CLUB et al.,
F079904
Plaintiffs and Respondents,
(Super. Ct. No. 11CECG00706)
v.
COUNTY OF FRESNO et al., OPINION
Defendants;
FRIANT RANCH, L.P.,
Real Party in Interest and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Kristi Culver
Kapetan, Judge.
Remy Moose Manley, James G. Moose, Tiffany K. Wright and Laura M. Harris
for Real Party in Interest and Appellant.
Chatten-Brown Carstens & Minteer, Douglas P. Carstens and Michele Black
Plaintiffs and Respondents.
-ooOoo-
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I. and II.A. of the Discussion.
This appeal involves the application of the California Environmental Quality Act
(CEQA)1 to a proposed master-planned community located in Fresno County below
Friant Dam and Millerton Lake. The project’s developer, real party in interest Friant
Ranch, L.P. (Developer), contends the trial court erred in drafting the writ of mandate
issued after this court’s opinion in Sierra Club v. County of Fresno (2014) 226
Cal.App.4th 704 was affirmed in part and reversed in part by the California Supreme
Court in Sierra Club v. County of Fresno (2018) 6 Cal.5th 502 (Sierra Club). The
Supreme Court “remand[ed] the matter for additional proceedings consistent with this
opinion.” (Id. at p. 527.) Developer contends the trial court misinterpreted the combined
opinions and abused its discretion by adopting an overly broad remedy that did not
comply with section 21168.9. In Developer’s view, the court should have issued a
narrow writ, partially decertifying the environmental impact report (EIR) and leaving
most of the project’s approvals in place. We disagree.
In the unpublished parts of this opinion, we conclude (1) the trial court correctly
interpreted the opinions of the Supreme Court and this court when it drafted the writ of
mandate and (2) the writ properly directed the lead agency to vacate its approvals of the
project because, for purposes of section 21168.9, those approvals are not severable—that
is, are not unaffected by the CEQA violations.
In the published part of this opinion, we provide two alternate grounds for
rejecting Developer’s contention that the writ should have directed a partial
decertification of the EIR. First, the statutes require the public agency to certify “the
completion of” the EIR. (§§ 21100, subd. (a), 21151, subd. (a).) We again reject the
statutory interpretation that allows for partial certification because an EIR is either
completed in compliance with CEQA or it is not so completed. (LandValue 77, LLC v.
1 Public Resources Code, section 21000 et seq. Undesignated statutory references
are to the Public Resources Code.
2.
Board of Trustees of California State University (2011) 193 Cal.App.4th 675, 682
(LandValue 77).) Second, even if CEQA is interpreted to allow for partial certification, it
is inappropriate in this case because the CEQA violations affect the adoption of the
statement of overriding considerations and, thus, taint the certification of the EIR as a
whole. In other words, severance findings under section 21168.9, subdivision (b) are not
appropriate in the circumstances of this case.
We therefore affirm the judgment. However, to reduce the potential for further
disputes on remand, we direct the trial court to issue an amended writ of mandate with
the more detailed instructions set forth in this opinion’s disposition.
FACTS AND PROCEEDINGS
Developer proposed locating a master planned community for persons age 55 or
older on a 942-acre site in north central Fresno County near the San Joaquin River. The
version of the project approved by the County of Fresno (County) has five phases and
includes approximately 2,500 residential units, 250,000 square feet of commercial space,
and 460 acres dedicated to open space.
In October 2007, County distributed a notice of preparation of a draft EIR for the
project. In August 2010, after the draft EIR was released and public comments received,
County issued the final EIR. On February 1, 2011, County’s board of supervisors
approved the project by adopting resolution No. 11-031, which certified the completion
of the final EIR and approved general plan amendment No. 511, which updated the Friant
Community Plan (a component of the Fresno County General Plan) and authorized the
proposed Friant Ranch Specific Plan.
In March 2011, three nonprofit organizations, Sierra Club, League of Women
Voters of Fresno, and Revive the San Joaquin (collectively, plaintiffs), filed a petition for
peremptory writ of mandate and complaint for declaratory and injunctive relief.
Plaintiffs challenged the approval of the project and certification of the completion of the
final EIR by alleging violations of CEQA and of the Planning and Zoning Law (Gov.
3.
Code, § 65000, et seq.) requirement that land use decisions be consistent with the
applicable general plan.
In September 2012, after extensive briefing by the parties, the trial court held a
hearing on the merits of the petition. In December 2012, the trial court issued its ruling
denying plaintiffs’ claims and entering judgment in favor of Developer and County.
Plaintiffs appealed from the judgment.
Fifth District Review
By November 2013, the parties’ appellate briefing was complete. Plaintiffs’
opening and reply briefs did not analyze the application of section 21168.9 or the
formulation of appellate relief for any of the asserted CEQA violations. Instead, the last
sentence of each brief simply requested a “writ of mandamus directing the County … to
set aside, invalidate and void certification of the EIR for the Friant Ranch Project and all
related approvals.”2 The joint respondents’ brief did not argue this request for relief
2 In 2013, such a request in a CEQA appeal was not unusual. For example, the
request is consistent with the relief this court granted in a 2011 CEQA case after
identifying deficiencies in an EIR that had been upheld by the trial court. (Chawanakee
Unified School Dist. v. County of Madera (2011) 196 Cal.App.4th 1016.) There, we
“remanded to the superior court with directions to vacate its order denying the petition for
writ of mandate and to enter a new order that grants the petition for writ of mandate and
compels County to (1) set aside the certification of the final EIR, (2) set aside the
approvals of the project, and (3) take the action necessary to bring the EIR into
compliance with CEQA regarding its analysis of” two topics discussed in our opinion.
(Id. at p. 1029.)
Other examples include Save Round Valley Alliance v. County of Inyo (2007) 157
Cal.App.4th 1437, where the Fourth District instructed the trial court to issue a
peremptory writ directing the respondents to “vacate their certification of the EIR and
their approval of the project.” (Id. at p. 1469.) In Los Angeles Unified School Dist. v.
City of Los Angeles (1997) 58 Cal.App.4th 1019, the Second District instructed the trial
court to “issue a peremptory writ of mandate directing the City to vacate its certification
of the EIR and approval of the Warner Center Specific Plan.” (Id. at p. 1031.) More
recently, this court directed the trial court to issue a writ of mandate compelling the
county “to set aside its certification of the final EIR and its approval of the project.”
(Association of Irritated Residents v. Kern County Bd. of Supervisors (2017) 17
4.
contradicted the requirements of section 21168.9 or was otherwise inappropriate in scope.
Instead, Developer and County argued there were no CEQA violations and asserted this
court should affirm the trial court’s judgment. In short, in the first appeal, Developer and
County placed all their eggs in the no-violation basket and made a tactical decision not to
address plaintiffs’ requested relief.
Following oral argument, this court issued its opinion in May 2014, which was
published as Sierra Club v. County of Fresno, supra, 226 Cal.App.4th 704. Like the trial
court, we rejected plaintiffs’ claims under the Planning and Zoning Law and the claims
under CEQA involving wastewater. However, as described below, we concluded the
EIR’s discussion of issues relating to air quality was inadequate. (See pts. I.B.2. and I.C.,
post.) Based on this failure to comply with CEQA, our opinion directed the trial court to
issue a writ of mandate compelling County to vacate its approval of the project and not
approve the project before preparing a revised EIR that cured the CEQA defects. Due to
the parties’ one-sentence approach to briefing the question of appellate relief, the opinion
did not contain a section analyzing the formulation of that relief. (Cf. King & Gardiner
Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 895–900 [part XII. of our
opinion addressed appellate relief and § 21168.9]; Association of Irritated Residents v.
Kern County Bd. of Supervisors, supra, 17 Cal.App.5th at p. 754 [unpublished part of our
opinion addressed formulating appellate relief].)
In June 2014, this court denied plaintiffs’ petition for a rehearing. Developer did
not file a petition for a rehearing. Thus, at that point in the proceedings, Developer did
not contend the relief contained in the disposition failed to comply with CEQA or,
Cal.App.5th 708, 754.) As explained in part II.B. of this opinion, the phrase
“certification of the EIR” is shorthand and does not track the statutory text.
5.
alternatively, this court had omitted an analysis of the appropriate relief, the application
of section 21168.9, or the severability issue.3
Supreme Court Review
In July 2014, Developer filed a petition for review with the California Supreme
Court, which was granted in October 2014. A significant procedural question addressed
by the Supreme Court was the standard of judicial review applicable to CEQA claims
challenging the adequacy of an EIR’s discussion of a specific topic. (Sierra Club, supra,
6 Cal.5th at pp. 511–516 [standard of review].) Developer argued the substantial
evidence standard of review applied to an agency’s determination that the EIR was
adequate.
In December 2018, the Supreme Court issued its decision. (Sierra Club, supra, 6
Cal.5th 502.) On the standard of review question, the court rejected Developer’s
argument. It concluded the ultimate inquiry “is whether the EIR includes enough detail
‘to enable those who did not participate in its preparation to understand and to consider
meaningfully the issues raised by the proposed project.’ [Citations.]” (Id. at p. 516.)
The court further concluded this “inquiry presents a mixed question of law and fact” that
usually is subject to independent review. (Ibid.) However, in situations where factual
questions predominate, such as choosing among different methods for analyzing an
environmental effect, a more deferential standard is warranted. (Ibid.)
On the merits of the CEQA issues addressed, the Supreme Court stated, “we
affirm in part and reverse in part the Court of Appeal’s judgment and remand the matter
3 Under California Rules of Court, rule 8.500(c)(2), the Supreme Court normally
accepts the Court of Appeal’s opinion’s statement of issues unless the party has called the
Court of Appeal’s attention to an alleged omission of an issue in a petition for rehearing.
(See Barratt American Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685, 700, fn.
3 [Supreme Court refused to address issue not addressed by Court of Appeal where
appellant did not file a petition for rehearing to bring the deficiency to the court’s
attention].)
6.
for additional proceedings consistent with this opinion.” (Sierra Club, supra, 6 Cal.5th at
p. 527.) Our interpretation of which parts of our May 2014 opinion were affirmed and
which parts were reversed is set forth in an unpublished part of this opinion.
Remittitur
On January 31, 2019, the Supreme Court filed a remittitur stating, “that the
attached are copies of the original judgment now final entered in the above-entitled cause
on December 24, 2018.” The next day, this court issued a remittitur to the trial court that
stated:
“This remittitur is issued in the above entitled cause. Also enclosed is a
copy of the Supreme Court remittitur, a file-stamped copy of the Supreme
Court opinion/order, and a copy of the Fifth Appellate District opinion. [¶]
Costs on appeal, whether incurred in proceedings before this court or before
the California Supreme Court, are awarded to plaintiffs.”
Our remittitur to the trial court trusted that court to interpret accurately what
remained of this court’s opinion after the partial reversal and decide what terms should be
included in the writ of mandate. (See §§ 21003, subd. (f), 21167.1, subd. (a) [expeditious
handling of CEQA matters].)
Writ of Mandate
On March 19, 2019, the trial court signed and filed a “JUDGMENT GRANTING
PETITION FOR WRIT OF MANDATE” and a two-page “PEREMPTORY WRIT OF
MANDATE.”
The judgment covered the fundamental points without setting forth the specific
terms included in the writ. The judgment’s three numbered sentences stated (1) the
previous judgment was vacated, (2) plaintiffs’ “application for writ of mandate, or
peremptory writ, [was] granted,” and (3) plaintiffs were awarded costs.
The writ of mandate ordered County to promptly “[v]acate or set aside its approval
of the Friant Ranch project and not approve the project before preparing a revised EIR
that provides an adequate discussion of health and safety problems that will be caused by
7.
the rise in the various pollutants resulting from the Project’s development.” The writ also
stated the trial court retained “jurisdiction over the [proceedings] by way of a return to
this peremptory writ of mandate until the court has determined [County] has complied
with the provisions of the [CEQA] and the opinion of the Court of Appeal as modified by
the Opinion of the Supreme Court.”
Post-Writ Proceedings
On May 31, 2019, Developer and County jointly filed a motion to vacate and
reconsider judgment and writ that cited Code of Civil Procedure section 663, subdivision
(1). Developer and County argued (1) public policy militates against vacating all of the
project approvals, (2) trial courts must issue narrowly tailored remedies in CEQA cases,
and (3) the facts in this case support findings of severability and, thus, the issuance of a
limited writ.
On August 29, 2019, after a stipulated four-week continuance and the filing of an
opposition and reply, the trial court issued a four-page tentative ruling providing a
detailed analysis of its reasons for denying the motion. Among other things, the tentative
ruling stated that “the project’s operational effects on air quality are not severable from
the remainder of the EIR.” That same day, Developer filed a notice of appeal to prevent
its appeal from being untimely.
On August 30, 2019, the trial court held a hearing on the motion to vacate and
reconsider judgment and writ. The law and motion minute order filed after the hearing
adopted the tentative ruling as the order of the court and stated no further order was
necessary. The effect (if any) of this minute order, which was issued after Developer
filed its notice of appeal, is immaterial to the outcome of this appeal.
8.
DISCUSSION
I. INTERPRETING THE COMBINED OPINIONS*
A. Basic Principles
1. Impact of Supreme Court Review
When the Supreme Court granted review of our May 2014 decision, the law held
that, generally, a grant of review by the California Supreme Court nullifies the opinion of
the Court of Appeal and causes it to no longer exist. (Farmers Ins. Exchange v. Superior
Court (2013) 218 Cal.App.4th 96, 109.)4 An exception to this general rule is set forth in
the statement that “[w]ithout some further act of approval or adoption by the Supreme
Court, the opinion and decision were ‘of no more effect as a judgment or as a precedent
to be followed in the decision of legal questions that may hereafter arise than if they had
not been written.’ ” (Ibid.) We interpret this exception about a “further act of approval
or adoption by the Supreme Court” to mean that when a Court of Appeal’s judgment is
affirmed in part and reversed in part, the affirmed portion still governs the dispute
between the parties while the reversed portion remains a nullity with no force or effect.
This interpretation of the principles governing the effect of the Supreme Court’s
grant of review is consistent with the principles applied to a partial reversal where the
appeal was taken from the whole judgment. (See 9 Witkin, Cal. Procedure (5th ed. 2008)
Appeal, § 889, p. 950.) Over a century ago, our Supreme Court stated: “The practice of
reversing a judgment in part only … should be followed where the error found to have
been committed has affected the determination of but one or more of a greater number of
distinct and severable issues.” (Gray v. Cotton (1913) 166 Cal. 130, 139.) In Gray, the
findings on the second, third and fifth causes of action were upheld on appeal and the
* See footnote, ante, page 1.
4 The amendment to California Rules of Court rule 8.1115 that took effect on July 1,
2016, and addressed the consequences of the Supreme Court granting review of an
opinion published by the Court of Appeal is not applicable to this case.
9.
partial reversal affected only the first cause of action, which was remanded for a retrial.
(Ibid.)
2. Remittitur
The grant of review by our Supreme Court begins its involvement with the merits
of a lawsuit. This involvement ends when the Supreme Court issues its remittitur. Thus,
unlike Developer’s approach, our evaluation of the Supreme Court’s impact on our May
2014 opinion extends to the principles defining the effect of remittiturs issued by the
Supreme Court. We also consider the effect of our remittitur on subsequent proceedings
in the trial court.
An appellate court’s decision usually is embodied in the disposition section of its
opinion, which constitutes the judgment on appeal. (Ducoing Management, Inc. v.
Superior Court (2015) 234 Cal.App.4th 306, 312.) The orders and directions of the
appellate court are set forth in the disposition, which is conveyed to the trial court by the
remittitur and must be followed on remand. (Id. at pp. 312–313.) The remittitur defines
the scope of the jurisdiction of the court to which the matter is returned. (Ayyad v. Sprint
Spectrum, L.P. (2012) 210 Cal.App.4th 851, 859 (Ayyad).)
Here, this court initially reversed the trial court’s judgment and remanded with
directions and the Supreme Court subsequently affirmed part of our decision and
remanded with instructions for further proceedings consistent with its opinion. (Sierra
Club, supra, 6 Cal.5th at p. 527.) As background for our discussion of this type of
disposition, we note that an unqualified reversal (i.e., a reversal without directions)
ordinarily vacates the judgment and leaves the case “at large” for further proceedings as
if it had never been tried and no judgment had been entered. (Saller v. Crown Cork &
Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1238.) In contrast, “when an appellate court
remands a matter with directions governing the proceedings on remand, ‘those directions
10.
are binding on the trial court and must be followed. Any material variance from the
directions is unauthorized and void.’” (Ayyad, supra, 210 Cal.App.4th at p. 860.)
Based on these principles, we conclude this court was required to follow the
directions transmitted in the Supreme Court’s remittitur. In turn, the trial court was
bound by the directions contained in our February 2019 remittitur, which incorporated
the Supreme Court’s decision.
3. Interpretation and Standard of Review
A major issue in this appeal is the proper interpretation of the February 2019
remittitur issued by this court. Whether a trial court has correctly interpreted the
dispositional language in a prior appellate opinion in the action is an issue of law subject
to de novo review. (Ayyad, supra, 210 Cal.App.4th at p. 859; Ducoing Management, Inc.
v. Superior Court, supra, 234 Cal.App.4th at p. 313 [interpretation of appellate opinion is
an issue of law]; see Leese v. Clark (1865) 28 Cal. 26, 36 [whether judgment of lower
court was entered in accordance with Supreme Court’s directions was a question of law,
not fact].) “The trial court’s interpretation of those directions is not binding on us.
[Citation.] We look to the wording of our directions to determine whether the trial
court’s order comports with them. [Citation.] When, as in this case, the reviewing court
remands the matter for further proceedings, its directions must be read in conjunction
with the opinion as a whole.” (Ayyad, supra, at p. 859.) In other words, “[i]t is the
substance of the opinion that controls” and that substance is determined by considering
the entire opinion. (In re Anna S. (2010) 180 Cal.App.4th 1489, 1500.)
We conclude these basic rules governing the interpretation of appellate opinions
extend to the instant appeal, which involves determining the combined effect of the
Supreme Court’s opinion and the parts of this court’s decision that were affirmed.
11.
B. Overview of Our Disposition
Our approach to the questions of interpretation is chronological, beginning with
the language used in our May 2014 opinion’s disposition, before addressing the Supreme
Court’s December 2018 opinion, and the subsequent remittiturs.5 Not all the language in
our disposition is a source of controversy. The language that both sides agree was either
affirmed or reversed is set forth here to provide context for the specific issues raised by
Developer.
1. Issuance of a Writ
It is undisputed that the first and third paragraphs of our disposition were not
affected by the partial reversal. The first paragraph stated: “The judgment is reversed
5 In September 2019, after receiving the notice of appeal, this court sent counsel for
the parties a letter stating:
“Based on the priority given to CEQA cases, the age of this case which was
commenced in 2014, and the fact this court is in a much better position than
counsel to know the intention underlying the court’s actions, the court is providing
counsel with this letter to explain what it intended when it issued its remittitur
after receiving the California Supreme Court’s opinion. This court intended and
expected the superior court to issue a writ of mandate directing the County to take
the following steps to implement this court’s decision, as modified by the
California Supreme Court:
“(1) Vacate or set aside its approval of the Friant Ranch project and not
approve the project before preparing and certifying [the completion of] a revised
EIR that cures (a) the defects in the analysis of Impact #3.3.2, which addresses the
adverse human health impacts that are likely to result from the air quality impacts
identified in the EIR, and (b) the defects in the discussion of proposed Mitigation
Measure #3.3.2, which discussion stated the implementation of the proposed
measure ‘shall substantially reduce air quality impacts related to human activity
with[in] the entire Project area but not to a level that is less than significant .…’ ”
The letter provided an explanation for including those terms in the writ of mandate
issued on remand and also noted the deficiencies in the EIR’s statement that mitigation
measure No. 3.3.2 would “substantially reduce air quality impact …” were discussed in
part B.1. of the Supreme Court’s opinion and part IV.C.5. of our May 2014 opinion. The
letter’s last paragraph stated: “Having clarified the intent underlying this court’s issuance
of remittitur, the parties may proceed with this appeal as they see fit.”
12.
and the matter remanded for further proceedings. The superior court is directed (1) to
vacate its decision denying the petition for writ of mandate and (2) to enter a new order
that grants the petition for writ of mandate.” The parties agree that the trial court was
required to issue a writ of mandate.
The third paragraph of the disposition restated the requirement in section 21168.9,
subdivision (b) that the trial court retain jurisdiction over the proceedings conducted by
the public agency to comply with the writ of mandate. A provision mentioning the
procedural step of a return to the writ is routine and it is not disputed in this appeal.
2. Terms of the Writ
Developer’s claims of error center on the second paragraph of our May 2014
disposition, which set forth the writ of mandate’s directions to County by stating:
“The superior court shall issue a peremptory writ of mandate that compels
County to vacate or set aside it[s] approval of the Friant Ranch project and
directs County not to approve the project before preparing a revised EIR
that (1) contains an analysis of the adverse human health impacts that are
likely to result from the air quality impacts identified in the EIR; (2)
addresses the deficiencies concerning vagueness, enforceability and lack of
specific performance standards in Mitigation Measure #3.3.2; and (3)
addresses the issues related to the statement that those mitigation provisions
will substantially reduce air quality impacts.”
For purposes of this appeal, we divide these directions into two main topics: (1) the
vacatur of the approval of the project and (2) the specific corrective actions needed to
cure the defects in the EIR. We begin with the three enumerated corrective actions and
determine which were affirmed and which were reversed. We then examine whether our
direction to vacate the board of supervisor’s approval of the project remained in effect or,
alternatively, was reversed.
13.
C. Corrective Actions
1. Human Health Impact of Air Pollutants
The first of the enumerated corrective actions addresses the EIR’s analysis of the
adverse human health impact likely to result from the project’s adverse impact on air
quality. Corrective action on this topic is required by the Supreme Court’s decision, the
“CONCLUSION” of which states in part:
“The EIR fails to provide an adequate discussion of health and safety
problems that will be caused by the rise in various pollutants resulting from
the Project’s development. At this point, we cannot know whether the
required additional analysis will disclose that the Project’s effects on air
quality are less than significant or unavoidable, or whether that analysis
will require reassessment of proposed mitigation measures. Absent an
analysis that reasonably informs the public how anticipated air quality
effects will adversely affect human health, an EIR may still be sufficient if
it adequately explains why it is not scientifically feasible at the time of
drafting to provide such an analysis.” (Sierra Club, supra, 6 Cal.5th at p.
527.)
We interpret the Supreme Court’s decision to mean the EIR’s discussion of
“health and safety problems that will be caused by the rise in various pollutants resulting
from the Project’s development” must be corrected. Consequently, we conclude the
Supreme Court affirmed the part of our opinion requiring such a correction but provided
additional, binding directions as to what that correction might contain. The trial court
interpreted the combined effect of the appellate opinions by issuing a writ of mandate
stating the revised EIR must provide “an adequate discussion of health and safety
problems that will be caused by the rise in various pollutants resulting from the Project’s
development.” This provision is not a source of dispute because the writ of mandate
proposed by Developer also required the revision of the EIR’s discussion of these health
and safety problems. Consequently, the trial court’s writ of mandate properly directed
County to prepare “a revised EIR that provides an adequate discussion of health and
14.
safety problems that will be caused by the rise in the various pollutants resulting from the
Project’s development.”
2. Vagueness, Enforceability and Specific Performance Standards
The second of the three corrective actions enumerated in our May 2014 disposition
required the EIR be revised to “address[] the deficiencies concerning vagueness,
enforceability and lack of specific performance standards in Mitigation Measure #3.3.2.”
No one disputes that the Supreme Court determined the mitigation measure No. 3.3.2 was
not vague, was enforceable, and contained performance standards that were adequate.
Consequently, the second enumerated corrective action in our disposition was reversed
and vacated. Accordingly, the trial court properly excluded that corrective action from
the writ of mandate.
3. “Substantially” Reduced Air Quality Impacts
The third enumerated corrective action in our May 2014 disposition is a source of
controversy. The corrective action deals with the EIR’s statement that certain mitigation
measures will substantially reduce air quality impacts. Specifically, the EIR’s
description of mitigation measure No. 3.3.2 begins with the following paragraph:
“Mitigation Measure #3.3.2: Implementation of the following mitigation
measures will substantially reduce air quality impacts related to human
activity within the entire Project area, but not to a level that is less than
significant.” (Italics added.)
After setting forth the particular measures, the description of mitigation measure No.
3.3.2 ends with the following paragraph:
“Effectiveness of Mitigation: The above mitigation measures would
reduce project air quality impacts, but not below the SJVAPCD thresholds
of significance; therefore, project impacts on air quality would be
significant and unavoidable.”
The EIR’s paragraph explicitly labeled to address the effectiveness of the
mitigation measures did not repeat the opening paragraph’s factual assertion that the
15.
measure would “substantially reduce air quality impacts.” (Italics added.) Our May
2014 opinion stated that we could not discern whether the use of the term “substantially
reduce” was supported by any evidence or, alternatively, lacked evidentiary support. We
also stated that we could not discern whether the term was included inadvertently or as an
intentional attempt to mislead the reader. We determined “the statement that the measure
will substantially reduce air quality impacts is a bare conclusion and, in this case, is not
supported by facts or analysis as required by the disclosure principles” articulated by this
court in Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th
1383, at pages 1390 through 1391 (EIR must contain facts and analysis, not just bare
conclusions). As guidance for the proceedings on remand, we stated that “if County
reasserts its position that the reductions in emissions will be substantial, it should include
enough facts and analysis in the EIR to allow a reviewing court to determine whether that
finding of fact is supported by substantial evidence.” We ended our discussion of the
topic by stating: “In summary, on remand, the assertion of fact in Mitigation Measure
#3.3.2 that the reduction in air quality impacts will be substantial should be either
explained or deleted.”
The Supreme Court addressed the EIR’s assertion that the mitigation measure
would substantially reduce air quality impacts in part B.1. of its opinion. (Sierra Club,
supra, 6 Cal.5th at p. 522.) Those three paragraphs stated:
“At the outset of the discussion of proposed mitigation measure No. 3.3.2
(discussed more fully … [below]), the EIR stated that ‘Implementation of
the following mitigation measures shall substantially reduce air quality
impacts related to human activity within the entire Project area but not to a
level that is less than significant ….’
“The Court of Appeal concluded that the EIR’s use of the term ‘substantial’
to describe the impact the proposed mitigation measures would have on
reducing the Project’s significant health effects, without further explanation
or factual support, amounted to a ‘bare conclusion’ that did not satisfy
CEQA’s disclosure requirements.
16.
“We agree with the Court of Appeal on this point. (See Laurel Heights
[Improvement Assn. v. Regents of University of California (1988)] 47
Cal.3d [376,] 404 [‘ “To facilitate CEQA’s informational role, the EIR
must contain facts and analysis, not just the agency’s bare conclusions or
opinions.” ’].) Here, the EIR included no facts or analysis to support the
inference that the mitigation measures will have a quantifiable ‘substantial’
impact on reducing the adverse effects. The EIR must accurately reflect the
net health effect of proposed air quality mitigation measures. (Cleveland
National Forest [Foundation v. San Diego Assn. of Governments (2017)] 3
Cal.5th [497,] 514 [‘an EIR’s designation of a particular adverse
environmental effect as “significant” does not excuse the EIR’s failure to
reasonably describe the nature and magnitude of the adverse effect’].)”
(Sierra Club, supra, 6 Cal.5th at p. 522.)
Interpreting the Supreme Court’s opinion as a whole, we conclude the statement
that “[w]e agree with the Court of Appeal on this point” means the EIR’s statement that
the mitigation measures would “ ‘substantially reduce air quality impacts related to
human activity’ ” was “a ‘bare conclusion’ that did not satisfy CEQA’s disclosure
requirements.” (Sierra Club, supra, 6 Cal.5th at p. 522.) Because the unexplained
“substantially reduce” statement did not satisfy CEQA’s disclosure requirements, we also
conclude the statement must be corrected in any revised EIR circulated by County. In
other words, the Supreme Court affirmed, rather than reversed, our determination that,
“on remand, the assertion of fact in Mitigation Measure #3.3.2 that the reduction in air
quality impacts will be substantial should be either explained or deleted.”6
Developer’s arguments to the contrary are unconvincing because they do not
consider the Supreme Court’s opinion as a whole. Developer focuses on the first
sentence in the “CONCLUSION” of the Supreme Court’s opinion, which states: “In our
view, the EIR’s air quality impacts discussion and its mitigation measures meet CEQA
requirements for specificity and enforceability with one exception: The EIR fails to
provide an adequate discussion of health and safety problems that will be caused by the
6 If the Supreme Court had stated this defect caused no prejudice, it would have
implied the defect did not need correction on remand.
17.
rise in various pollutants resulting from the Project’s development.” (Sierra Club, supra,
6 Cal.5th at p. 527, italics added.) We conclude this sentence’s reference to “one
exception” is limited and, therefore, does not mean the exception described the only
CEQA violation needing correction on remand. In particular, the limitation is expressed
in the prepositional phrase in the reference to “CEQA requirements for specificity and
enforceability.” (Ibid., italics added; see § 21081.6, subd. (b) [mitigation measures shall
be “fully enforceable”]; Guidelines, §§ 15126.4 [mitigation measures], 15146 [degree of
specificity].)7 CEQA’s basic disclosure requirements, rather than its requirements for
specificity and enforceability, were violated by the unexplained conclusion that
mitigation measures would “ ‘substantially reduce air quality impacts related to human
activity.’ ” (Sierra Club, supra, 6 Cal.5th at p. 522.) Accordingly, the Supreme Court’s
reference to “one exception” does not mean the third enumerated corrective action in the
May 2014 disposition was unnecessary to achieve CEQA compliance on remand.
4. Summary
The Supreme Court affirmed two of the corrective actions set forth in our opinion.
First, the EIR failed “to provide an adequate discussion of health and safety problems that
will be caused by the rise in various pollutants resulting from the Project’s development.”
(Sierra Club, supra, 6 Cal.5th at p. 527.) Consequently, a revised EIR must include “an
analysis that reasonably informs the public how anticipated air quality effects will
adversely affect human health[ or, alternatively,] adequately explains why it is not
scientifically feasible at the time of drafting to provide such an analysis.” (Ibid.)
Second, the EIR’s bare conclusion that “mitigation measures will substantially
reduce air quality impacts related to human activity within the entire Project area” must
7 “Guidelines” refers to the regulations that implement CEQA and are set forth in
California Code of Regulations, title 14, section 15000 et seq.
18.
be either explained or deleted.8 (Italics added.) A writ of mandate requiring such a
correction is part of the “additional proceedings consistent with this opinion”—more
specifically, part B.1. of the Supreme Court’s opinion. (Sierra Club, supra, 6 Cal.5th at
pp. 522, 527.)
D. Vacating Approval of the Project
1. Contentions
Developer contends the trial court was not obligated on remand to issue a writ
requiring County to vacate the project’s approvals. Developer also contends “the trial
court abused its discretion to the extent it found it was bound by [the] directions on
remand [in the Fifth District’s May 2014 opinion.]” In Developer’s view, because the
Supreme Court granted review, “it is as if the appellate court ‘never wrote that opinion.’ ”
Developer rephrases this argument by asserting “[t]he Supreme Court’s judgment should
be construed as superseding the appellate court’s holding as to the remand proceedings.”
2. Issues Presented
As previously stated, the trial court was bound by the remittitur issued by this
court. (See pt., I.A.2., ante.) That remittitur attached the Supreme Court’s opinion and
this court’s May 2014 opinion. Accordingly, interpreting the remittitur necessarily
involves interpreting the combined effect of those two opinions. Our interpretative
process includes three steps. First, we identify the Supreme Court’s intent, if any, on the
question of vacating the project’s approval. Second, we describe the intent underlying
8 If an explanation is provided, it should address all the “air quality impacts related
to human activity within the entire Project area” that are substantially reduced and should
not be limited to impacts on human health and safety. In other words, the quoted phrase
does not refer only to impact of air pollution on human health and safety. The word
“related” means “[c]onnected in some way.” (Black’s Law Dict. (11th ed. 2011).)
Therefore, as drafted, the quoted phrase includes air quality impacts arising from (i.e.,
caused by) the increase in human activity within the project area that is attributable to the
project.
19.
our remittitur to the trial court. Third, in part II. of this opinion, we explain why the
outcome we intended complied with CEQA.
3. Supreme Court’s Intent Relating to the Project’s Approval
The Supreme Court did not discuss the contents of the writ of mandate to be
issued on remand or any aspect of the application of section 21168.9. With no explicit
discussion or directions on this point, we consider what inferences to draw from the
Supreme Court’s decision to “remand the matter for additional proceedings consistent
with this opinion.” (Sierra Club, supra, 6 Cal.5th at p. 527; see generally, 9 Witkin, Cal.
Procedure, supra, Appeal, §§ 885–886, pp. 946–947 [appellate judgment directing further
proceedings in conformity with opinion; criticism of this type of direction].) The
Supreme Court’s statement about additional proceedings is general. In the context of the
one-sentence approach to briefing the remedy issue in this court, that general statement
supports the inference that the Supreme Court never formed any intent about whether the
board of supervisor’s approval of the project should be vacated. Concluding otherwise
would indulge a fiction. Thus, we conclude the Supreme Court’s intent did not extend
beyond requiring the subsequent proceedings on remand (1) to not contradict its opinion
and (2) to comply with applicable law—that is, CEQA.
4. Intent Underlying This Court’s Remittitur
When this court issued its remittitur to the trial court on February 1, 2019, we
intended the trial court to follow the direction in our May 2014 opinion’s disposition
stating “[t]he superior court shall issue a peremptory writ of mandate that compels the
County to vacate or set aside it[s] approval of the Friant Ranch project .…” Thus, the
writ of mandate issued by the trial court complied with our intent. Consequently, the
critical question in this appeal is whether our intended outcome complied with CEQA.
20.
II. COMPLIANCE WITH CEQA
A. Vacating Approval of the Project*
Developer contends the writ of mandate should not have ordered all the project’s
approvals vacated because such a broad order does not comply with section 21168.9.
Developer argues the trial court should have issued a limited writ “leaving all or most of
the Project’s approvals in place.” (Boldface omitted.) We disagree.
1. Language in the Writ
The trial court’s writ of mandate directed the County to “[v]acate or set aside its
approval of the Friant Ranch project and not approve the project before preparing a
revised EIR .…” The writ’s language tracks the disposition in our May 2014 opinion,
which stated: “The superior court shall issue a peremptory writ of mandate that compels
County to vacate or set aside it[s] approval of the Friant Ranch project and directs County
not to approve the project before preparing a revised EIR .…”
The writ and our disposition used the term “approval,” which is singular.
Developer’s argument refers to “approvals,” which is plural. Consequently, to address
the argument that all or most of the project approvals should have been left in place, we
must determine what Developer means by the project’s “approvals.”
Developer appears to interpret the writ’s phrase “approval[] of the Friant Ranch
project” to mean the writ “requires the County of Fresno (County) to vacate all of the
approvals for the Friant Ranch Community Plan Update and Friant Ranch Specific Plan
(Project) .…” Our May 2014 opinion defined the term “Project” in its introductory
sentence: “In February 2011, the County of Fresno (County) approved the Friant Ranch
project, a proposed master-planned community for persons age 55 or older located in
north-central Fresno County (the Project).” Later in the opinion, we described the
approval of the project by stating: “On February 1, 2011, County’s board of supervisors
* See footnote, ante, page 1.
21.
approved the Project by adopting resolution No. 11-031, which certified the final EIR and
approved General Plan Amendment No. 511, which updated the Friant Community Plan
(a component of the Fresno County General Plan) and authorized the proposed Friant
Ranch Specific Plan.”
Developer did not designate the administrative record as part of the record on
appeal.9 As a result, the contents of the board of supervisor’s resolution is not available
for our review. Thus, for purposes of this appeal, we rely on our earlier description of the
project approvals. Based on that description, we accept Developer’s assertion that the
project approvals include the approval of the updated Friant Community Plan and the
Friant Ranch Specific Plan and the writ directs action that would set aside the approval of
both of those planning documents.
2. Usual Approach to Project Approvals
“ ‘In most cases, when a court finds that an agency has violated CEQA in
approving a project, it issues a writ of mandate requiring the agency to set aside its
CEQA determination, to set aside the project approvals, and to take specific corrective
action before it considers reapproving the project. See, e.g., Nelson v County of Kern
(2010) 190 [Cal.App.4th] 252, 285[.]’ ” (King & Gardiner Farms, LLC v. County of
Kern, supra, 45 Cal.App.5th at p. 896 [board of supervisor’s approval of a local
ordinance set aside].) Under the usual approach, the EIR’s CEQA violations would result
in a writ of mandate requiring the County to vacate the project approvals. This court’s
remittitur and the trial court’s writ followed the usual approach, which contradicts
9 “[T]he burden is on appellant to demonstrate, on the basis of the record presented
to the appellate court, that the trial court committed an error that justifies reversal.”
(Jameson v. Desta (2018) 5 Cal.5th 594, 608–609 [fundamental principle of appellate
procedure].) When an appellant fails to provide an adequate record on an issue, the issue
is resolved against the appellant. (Id. at p. 609.)
22.
Developer’s argument that all or most of the project approvals should have been left in
place.
3. Remedial Action Authorized by Statute
Developer’s argument for a limited writ of mandate is based on section 21168.9,
which governs the judicial remedies for CEQA violations. (POET, LLC v. State Air
Resources Bd. (2013) 218 Cal.App.4th 681, 756 (POET I).) The statute requires the
courts to issue a peremptory writ of mandate to remedy each failure to comply with
CEQA. (Ibid.)
Subdivision (a) of section 21168.9 refers to the corrective action as “mandate[s]”
and identifies three different types of actions that may be required of the public agency.
(POET I, supra, 218 Cal.App.4th at p. 757.) One or more of these mandates must be
included in the court’s order. The agency may be directed (1) to void, in whole or in part,
a determination, finding or decision made in violation of CEQA, (2) to “suspend any or
all specific project activity or activities” if certain conditions exist, or (3) to take specific
action necessary to bring the determination, finding or decision tainted by the CEQA
violation into compliance with CEQA.10 We interpret section 21168.9 to mean that the
10 The full text of subdivision (a) of section 21168.9 provides:
“(a) If a court finds, as a result of a trial, hearing, or remand from an appellate
court, that any determination, finding, or decision of a public agency has been made
without compliance with [CEQA], the court shall enter an order that includes one or more
of the following:
“(1) A mandate that the determination, finding, or decision be voided by the public
agency, in whole or in part.
“(2) If the court finds that a specific project activity or activities will prejudice the
consideration or implementation of particular mitigation measures or alternatives to the
project, a mandate that the public agency and any real parties in interest suspend any or
all specific project activity or activities, pursuant to the determination, finding, or
decision, that could result in an adverse change or alteration to the physical environment,
until the public agency has taken any actions that may be necessary to bring the
determination, finding, or decision into compliance with this division.
23.
approval of a project is a “decision” that may be “voided … in whole or in part.”
(§ 21168.9, subd. (a)(1).) Thus, the direction to County to set aside the project approvals
is among the corrective action authorized by section 21168.9. As a result, the next step in
applying section 21168.9 to the facts presented considers whether that corrective action
was contrary to any of section 21168.9’s limitations.
4. Statutory Limitations on Remedial Action
Section 21168.9 explicitly limits the authority of courts in fashioning a remedy for
CEQA violations. A court “shall include only those mandates which are necessary to
achieve compliance with [CEQA] and only those specific project activities in
noncompliance with [CEQA].” (§ 21168.9, subd. (b).) The statute explains the scope of
this limitation by stating:
“However, the order shall be limited to that portion of a determination,
finding, or decision or the specific project activity or activities found to be
in noncompliance only if a court finds that (1) the portion or specific project
activity or activities are severable, (2) severance will not prejudice
complete and full compliance with [CEQA], and (3) the court has not found
the remainder of the project to be in noncompliance with [CEQA].”
(§ 21168.9, subd. (b), italics added.)
The board of supervisor’s approval of the project constitutes a “decision” for
purposes of section 21168.9 Thus, the project approvals do not qualify as a “specific
project activity or activities” for purposes of subdivisions (a)(2) or (b) of section 21168.9.
Restating Developer’s argument using the statutory text, the writ of mandate should have
been “limited to that portion of [the project approvals] found to be in noncompliance only
if … (1) the portion [of the project approvals is] severable, (2) severance will not
prejudice complete and full compliance with [CEQA], and (3) … the remainder of the
project [complies] with [CEQA].” (§ 21168.9, subd. (b).) The three statutory conditions
“(3) A mandate that the public agency take specific action as may be necessary to
bring the determination, finding, or decision into compliance with this division.”
24.
are linked with the word “and.” Consequently, each condition must be satisfied before
some of the project’s approvals may be left in place. (See Robinson v. City of Chowchilla
(2011) 202 Cal.App.4th 382, 390–391 [statutory criteria linked by “and”].)
5. Application of Statutory Text
First, we reject Developer’s contention that all the project approvals should have
been left in place. Approval of a CEQA project that may have one or more significant
environmental effects requires the preparation and certification of an EIR that complies
with CEQA “before approving or proceeding with the project.” (Union of Medical
Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1187; see
Guidelines, §§ 15089 [preparation], 15090 [certification], 15092, subd. (b)(2)(B)
[approval of project with significant environmental effect based on overriding concerns].)
In Center for Biological Diversity v. Department of Fish & Wildlife (2017) 17
Cal.App.5th 1245 (Center for Biological Diversity III), the court concluded that, “[u]nder
section 21168.9, the trial court has the authority to leave some project approvals in place
when decertifying portions of an EIR, so long as it appropriately finds the portions
severable under section 21168.9, subdivision (b).” (Id. at p. 1256.) This conclusion does
not establish the principle that all project approvals may be left in place when an EIR
fails to comply with CEQA. Thus, Developer’s reliance on Center for Biological
Diversity III does not support its contention that all project approvals should have been
left in place.
Second, we consider whether a portion of the project approvals may be severed
from the remaining project approvals and, as a result, whether some project approvals
should be left in place. As stated in POET, LLC v. State Air Resources Bd. (2017) 12
Cal.App.5th 52, the statute does not set forth a test for severability. (Id. at p. 92.) Here,
we conclude the severability of a decision, such as the decision to approve a project,
contains portions that are severable if those portions of the decision were not affected by
25.
the CEQA violation or violations. Applying this test to the instant case, we conclude the
decision to approve the project was not severable.
The CEQA violations relate to air quality impacts, which will be significant even
with the mitigation measures. Developer contends “[t]he only portions of the Project
approvals that relate directly to the EIR’s analysis of air quality health and safety impacts
caused by the Project’s operational emissions are the County certification of the EIR with
respect to its discussion of Impact 3.3.1 and the County’s Finding of Fact and Statement
of Overriding Considerations for that impact.”
Statements of overriding considerations are addressed in Guidelines section
15093, which provides:
“(a) CEQA requires the decision-making agency to balance, as applicable,
the economic, legal, social, technological, or other benefits, including
region-wide or statewide environmental benefits, of a proposed project
against its unavoidable environmental risks when determining whether to
approve the project. If the specific economic, legal, social, technological,
or other benefits, including region-wide or statewide environmental
benefits, of a proposal project outweigh the unavoidable adverse
environmental effects, the adverse environmental effects may be considered
‘acceptable.’ ”
Under this provision, the board of supervisors weighed the benefits of the project
“against its unavoidable environmental risks when [it decided] to approve the project.”
(Guidelines, § 15093, subd. (a).) Because of the EIR’s defects, the balancing performed
by the board of supervisors was not fully informed as to the project’s “unavoidable
environmental risks.” (Ibid.) Thus, the outcome of that balancing was tainted by the
incomplete information provided by the EIR. At this point in the proceedings, an
appellate or trial court cannot place itself in the board of supervisor’s position and
perform the required, untainted balancing, much less predict what balance will be struck
when a fully informed board of supervisors decides the issue. A fully informed balancing
will require a revised EIR correcting the defects and explaining the risks, if it is possible
26.
to do so, that the air quality impacts pose for human health and safety. Once the board of
supervisors is properly informed, it can strike a balance “regarding the costs and benefits
of the Project” (Sierra Club, supra, 6 Cal.5th at p. 510) and decide whether to go forward
with the proposed development.
Developer argues the approval of the updated Friant Community Plan and the
Friant Ranch Specific Plan should be left in place because they are planning documents
that, in themselves, do not cause any physical change in the environment. We reject this
argument because, under the test for severability adopted in this opinion, Developer has
not demonstrated the approvals of those planning documents were not affected by the
tainted weighing process that resulted in the adoption of a statement of overriding
considerations. In other words, we cannot speculate that the board of supervisors would
have approved those planning documents even if they rejected the proposed development
because its environmental risks outweighed its benefits. Consequently, the approval of
the planning documents would not “be in full compliance with CEQA” (Center for
Biological Diversity III, supra, 17 Cal.App.5th at p. 1253) without a full analysis of the
air quality impacts that the planning documents are likely to encourage. (See Guidelines,
§ 15358, subd. (a)(2) [relevant environmental effects or impacts include indirect or
secondary effects that are reasonably foreseeable].) In addition, leaving the approval of
the planning documents in place may establish bureaucratic momentum that creates
incentives to ignore environmental concerns, which would influence the balancing
process underlying the adoption of a statement of overriding considerations. (See Save
Tara v. City of Hollywood (2008) 45 Cal.4th 116, 135 [delaying the start of
environmental review results in more bureaucratic and financial momentum behind a
proposed project, which creates incentives to ignore environmental concerns that could
have been addressed earlier].)
27.
Consequently, as we impliedly determined when issuing the remittitur, the project
approvals are not severable. Therefore, the trial court’s writ of mandate requiring the
vacatur of the approvals did not violate the requirements of section 21168.9.
B. Certification of EIR and Partial Decertification
Developer contends the trial court should have issued a limited writ of mandate
“partially decertifying the EIR.” As support, Developer cites a decision stating that
“[s]ection 21168.9, subdivision (a) clearly allows a court to order partial decertification
of an EIR.” (Center for Biological Diversity III, supra, 17 Cal.App.5th at p. 1252).)
Developer’s contention about partial decertification raises a question of statutory
interpretation involving sections 21100, 21151 and 21168.9. We begin by setting forth
the statutes and Guideline provisions addressing certification.
1. Statutory and Regulatory Text
Section 21100, subdivision (a) provides: “All lead agencies shall prepare … and
certify the completion of[] an environmental impact report on any project which they
propose to … approve that may have a significant effect on the environment.” (Italics
added.) Section 21151, subdivision (a) replaces the word “lead” with “local” and restates
the foregoing directive: “All local agencies shall prepare … and certify the completion
of[] an environmental impact report on any project that they intend to … approve which
may have a significant effect on the environment.” (Italics added.)
Guidelines section 15090, subdivision (a) expands on CEQA’s certification
provisions by identifying the things an agency must certify. “Prior to approving the
project the lead agency shall certify that: [¶] (1) The final EIR has been completed in
compliance with CEQA.” Also, the lead agency must certify that the final EIR was
presented to its decisionmaking body, that body reviewed and considered the information
in the final EIR prior to approving the project, and the final EIR reflects the lead agency’s
independent judgment and analysis. (Guidelines, § 15090, subds. (a)(2), (a)(3).)
28.
To summarize, what public agencies are required to “certify” to satisfy the statutes
is “the completion of” the EIR. (§§ 21100, subd. (a), 21151, subd. (a).) The Guidelines
explain this requirement by stating the agency must certify “[t]he final EIR has been
completed in compliance with CEQA.” (Guidelines, § 15090, subds. (a)(1), italics
added.)
Section 21168.9, subdivision (a) provides that if a court finds “any determination,
finding, or decision of a public agency has been made without compliance with [CEQA],
the court shall enter an order that includes one or more of the following: [¶] (1) A
mandate that the determination, finding, or decision be voided by the public agency, in
whole or in part.” (Italics added.) A court’s authority to void an agency determination
“in part” is the textual basis for the concept of partial decertification.
2. Case Law
In LandValue 77, supra, 193 Cal.App.4th 675, this court addressed the meaning of
the statutory and regulatory language governing certification and its relationship with
section 21168.9. (Land Value 77, supra, at p. 682.) We concluded: “The wording of the
guideline and statutes indicates that a final EIR should not be certified if it is not
complete or in compliance with CEQA.” (Ibid.) In LandValue 77, the project proponent
argued that vacating the entire certification was not “necessary” for purposes of section
21168.9, subdivision (b) and certification was an agency decision that could “be voided
‘in part.’ ” (LandValue 77, supra, at p. 682.) We disagreed with the proponent’s
statutory construction and “reject[ed] the idea of partial certification.” (Ibid.) Under our
interpretation, CEQA and the “Guidelines provide for the certification of an EIR when it
is complete, and the concept of completeness is not compatible with partial certification.
In short, an EIR is either complete or it is not.” (LandValue 77, supra, at p. 682.) We
supported this interpretation by quoting Justice Robie’s treatise:
“ ‘In contrast to a case where severance is proper, a situation may arise
where an EIR is inadequate in some respects, but not others. This requires
29.
the local agency to set aside all project approvals and the certification of the
EIR, but the writ of mandate need only require the preparation, circulation
and consideration under CEQA of a legally adequate EIR on limited
issues.’ (Robie et al., Cal. Civil Practice: Environmental Litigation (2010)
§ 8:33, p. 61.)” (Id. at pp. 681–682.)
The statutory interpretation adopted in LandValue 77, which holds it is an
oxymoron to conclude an agency can partially “certify the completion of” an EIR, has
been questioned. For example, in dicta the Fourth District criticized LandValue 77’s
rejection of partial certification of an EIR’s completeness. (Preserve Wild Santee v. City
of Santee (2012) 210 Cal.App.4th 260, 289.) More recently, the Second District
addressed the argument that “section 2168.9 prohibits partial decertification of an EIR”
and concluded partial decertification was “legally permissible under CEQA.” (Center for
Biological Diversity III, supra, 17 Cal.App.5th at p. 1249, fn. omitted.) The court stated:
“Section 21168.9, subdivision (a) clearly allows a court to order partial decertification of
an EIR following a trial, hearing, or remand.” (Id. at p. 1252.) The court did not
acknowledge or analyze the language in sections 21100 or 21151 stating that what an
agency certifies is “the completion of” the EIR. Similarly, the court did not address the
language in Guidelines section 15090, subdivision (a) stating the agency shall certify the
“EIR has been completed in compliance with CEQA.” As a result, the court did not
explain how an agency can “certify the completion of”11 an EIR “in part”12 when the EIR
is not, in fact, completed in compliance with CEQA. Stated from another perspective, the
court’s interpretation renders the phrase “the completion of” surplusage—that is, useless
or devoid of meaning. (See City and County of San Francisco v. Farrell (1982) 32
Cal.3d 47, 54 [statutory interpretation that renders terms surplusage should be avoided].)
11 Sections 21100, subdivision (a) and 21151, subdivision (a).
12 Section 21168.9, subdivision (a)(1).
30.
3. Rejection of Partial Certification
The statutory interpretation adopted in LandValue 77 provides one ground for
rejecting Developer’s contention that the trial “court should have issued a limited writ
ordering the County to rescind certification of the EIR’s operational air quality
analysis .…” Developer rephrases this contention by asserting the trial court should have
issued a writ partially decertifying the EIR. Developer’s arguments do not track the
statutory language or otherwise acknowledge that what is being certified is “the
completion of” the EIR. (§§ 21100, subd. (a), 21151, subd. (a).) As a result, we reject
Developer’s approach because it ignores the statutory text and contradicts the
interpretation of sections 21100, 21151 and 21168.9 set forth in LandValue 77.
4. Partial Decertification is Not Available in This Case
Alternatively, the conflicting statutory interpretations in LandValue 77 and Center
for Biological Diversity III regarding partial certification can be considered irrelevant to
the present appeal by accepting the way the Second District distinguished LandValue 77.
The Second District concluded LandValue 77 “does not prohibit partially setting aside an
EIR, so long as a court makes severance findings under section 21168.9, subdivision
(b).”13 (Center for Biological Diversity III, supra, 17 Cal.App.5th at p. 1254.) The court
supported this distinction by noting the rule quoted from Justice Robie’s treatise was
“ ‘ “[i]n contrast to a case where severance is proper .…” ’ ” (Ibid.) In an unpublished
portion of this opinion, we have determined that severance is not proper. Consequently,
the Second District’s statutory interpretation stating partial decertification is allowed
where severance findings have been made does not apply to this case. (See Center for
Biological Diversity III, supra, at p. 1254.) As a result, our conclusion that partial
13 The court’s phrase “partially setting aside an EIR” appears to be shorthand for
“partially setting aside the [agency’s decision to certify the completion of] an EIR.” (See
§§ 21100, subd. (a), 21151, subd. (a).) Language similar to this shorthand phrase appears
in the dispositions described in footnote 2, ante.
31.
decertification is inappropriate in this case does not contradict the holding in Center for
Biological Diversity III because the circumstances of this case are distinguishable.
5. Application of Statutory Text
The trial court’s writ of mandate, like the disposition in our May 2014 opinion,
does not mention the board of supervisor’s decision to certify the completion of the EIR.
Instead, it directs the County to “not approve the project before preparing a revised
EIR .…” Based on alternate conclusions that (1) partial decertification of the completion
of the EIR is not authorized by CEQA or (2) partial decertification of the completion of
the EIR is authorized by CEQA only if severance findings allowed a portion of the
project approvals to remain in place, we further conclude the writ of mandate did not
violate CEQA by failing to include a provision directing County to partially decertify the
completion of the EIR.
This conclusion comports with the analysis adopted in Ione Valley Land, Air, &
Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165 (Ione
Valley). In that case, the CEQA plaintiff argued that “section 21168.9 allows for partial
decertification of an EIR, and, therefore, the trial court’s order directing full
decertification of the EIR allowed new challenges to parts of the EIR that had already
been upheld by the trial court.” (Ione Valley, supra, at p. 172.) The court rejected this
argument about new challenges “because whether the EIR has been decertified does not
alter the fact that the sufficiency of a component of the EIR has been litigated and
resolved.” (Ibid.)
In this case, the sufficiency and CEQA compliance of most components of the EIR
have been litigated and resolved. Based on the principle set forth in Ione Valley, new
challenges to the parts of the EIR that have been upheld are not allowed in proceedings
on remand. Thus, we conclude an order of partial decertification is not necessary to
protect Developer from relitigating the CEQA compliance of parts of the EIR not
32.
affected by the errors relating to air quality impacts. Instead, Developer is protected by
res judicata, collateral estoppel and the requirement for the exhaustion of administrative
remedies. (Ione Valley, supra, 33 Cal.App.5th at p. 172.) In other words, the arguments
presented in this appeal have not convinced us that these protections are inadequate. It
follows that we do not reach the issue of whether the concept of partial certification is
useful to ameliorate any inadequacies in the protection provided by the principles
identified in Ione Valley.
DISPOSITION
The judgment granting petition for writ of mandate is affirmed. Plaintiffs shall
recover their costs on appeal.
For purposes of clarity in subsequent proceedings, the superior court is directed to
promptly issue an amended peremptory writ compelling County to (1) vacate its decision
to approve the Friant Ranch project, which includes the approval of General Plan
Amendment No. 511, (2) void its decision to certify the completion of the final EIR, and
(3) not approve the project before preparing a revised EIR, circulating the revisions to the
EIR, and certifying the completion of the revised EIR. The revised EIR, in accordance
with the decision of the California Supreme Court, shall provide an adequate discussion
of health and safety problems that will be caused by the rise in various air pollutants
resulting from the project’s development, which analysis shall reasonably inform the
public and the decisionmaking body how anticipated air quality effects will adversely
affect human health or, alternatively, shall adequately explain why it is not scientifically
feasible at the time of drafting to provide such an analysis. In addition, the revised EIR
must either explain the bare conclusion that “mitigation measures will substantially
reduce air quality impacts related to human activity within the entire Project area” or
delete the word “substantially.”
The amended peremptory writ of mandate shall state the superior court retains
jurisdiction over the proceedings by way of a return to the writ. The superior court may,
33.
in its discretion, require County to file an initial return explaining the action it intends to
take to satisfy the writ’s requirements.
FRANSON, J.
WE CONCUR:
HILL, P.J.
LEVY, J.
34.