1. 1 “Fair Argument” Test Triggering EIR: Friends of “B” Street v City of Hayward Facts & Issue Trial court: city abused discretion in adopting negative declaration Trial court: city abused discretion in adopting negative declaration Trial court: there is substantial evidence of significant environmental effect Trial court: there is substantial evidence of significant environmental effect City appealed, contending that, regardless of evidence that project might have significant effect, there was substantial evidence to the contrary. City appealed, contending that, regardless of evidence that project might have significant effect, there was substantial evidence to the contrary. Issue: what is standard of judicial review of decision to adopt negative declaration? Issue: what is standard of judicial review of decision to adopt negative declaration?

2. 2 General Standard of Judicial Review Under CEQA “... The inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” Pub.Res.Code § 21168.5. “... The inquiry shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.” Pub.Res.Code § 21168.5.

3. 3 Friends of “B” Street Holding EIR required whenever it can be “fairly argued” that the project may have significant environmental impact EIR required whenever it can be “fairly argued” that the project may have significant environmental impact Court must determine whether substantial evidence supports agency's conclusion as to whether “fair argument” could be made Court must determine whether substantial evidence supports agency's conclusion as to whether “fair argument” could be made If substantial evidence exists that project might have a significant environmental impact, evidence to the contrary is not sufficient to support negative declaration If substantial evidence exists that project might have a significant environmental impact, evidence to the contrary is not sufficient to support negative declaration

4. 4 Laurel Heights Improvement Assn. v Regents of University of California Project: relocation of biomedical research facilities Project: relocation of biomedical research facilities Issue: does EIR fail to adequately discuss: Issue: does EIR fail to adequately discuss: 1.Anticipated future uses and effects 2.Alternatives

5. 5 Laurel Heights Scope of Analysis (Future Uses) Issue University’s position: University’s position: Need not evaluate the effects of future uses because University has not yet formally approved any particular use Need not evaluate the effects of future uses because University has not yet formally approved any particular use Court: Court: Post-approval analysis not allowed Post-approval analysis not allowed EIR is should be prepared as early in the planning process as possible to enable environmental considerations to influence program design. EIR is should be prepared as early in the planning process as possible to enable environmental considerations to influence program design.

6. 6 Laurel Heights Scope of Analysis (Future Uses) Issue No Oil: No Oil: “we framed the issue as whether the public agency had ‘sufficient reliable data to permit preparation of a meaningful and accurate report’....” “we framed the issue as whether the public agency had ‘sufficient reliable data to permit preparation of a meaningful and accurate report’....” Laurel Heights: Laurel Heights: “EIR must include an analysis of the environmental effects of future expansion or other action if: “EIR must include an analysis of the environmental effects of future expansion or other action if: 1. It is a reasonably foreseeable consequence of the initial project and 2.... it will likely change the scope or nature of the initial project or its environmental effects.”

7. 7 Laurel Heights Alternatives Analysis Issue Laurel Heights Alternatives Analysis Issue University’s argument: University’s argument: No need to discuss alternatives since environmental effects would be mitigated to insignificance No need to discuss alternatives since environmental effects would be mitigated to insignificance Court: EIR must discuss mitigation measures and project alternatives Court: EIR must discuss mitigation measures and project alternatives Final mitigations not known at time EIR prepared Final mitigations not known at time EIR prepared Guidelines §15126(d): Guidelines §15126(d): EIR must describe “a reasonable range of alternatives to the project, or to the location of the project, which could feasibly attain the basic objectives of the project and evaluate the comparative merits of the alternatives.” EIR must describe “a reasonable range of alternatives to the project, or to the location of the project, which could feasibly attain the basic objectives of the project and evaluate the comparative merits of the alternatives.”

8. 8 Laurel Heights Alternatives Analysis Issue: Proponent’s Responsibility It is project proponent’s responsibility to provide adequate discussion of alternatives It is project proponent’s responsibility to provide adequate discussion of alternatives Responsibility is not dependent on showing by the public that there are feasible alternatives Responsibility is not dependent on showing by the public that there are feasible alternatives

9. 9 Laurel Heights Remedy If failure to comply with CEQA, courts commonly overturn project approval If failure to comply with CEQA, courts commonly overturn project approval Laurel Heights: Laurel Heights: Court retains some equitable discretion regarding remedy where purposes of CEQA not thwarted Court retains some equitable discretion regarding remedy where purposes of CEQA not thwarted

10. 10 Laurel Heights Remedy: Public Resources Code § 21168.9 (A) if a court finds... that any... decision of a public agency has been made without compliance with this division, the court shall enter an order that includes one or more of the following: (1) a mandate that the... decision be voided.... (1) a mandate that the... decision be voided.... (2) if the court finds that a specific project activity or activities will prejudice... 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... (2) if the court finds that a specific project activity or activities will prejudice... 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... (3) a mandate that the public agency take specific action... to bring the... decision into compliance with this division. (3) a mandate that the public agency take specific action... to bring the... decision into compliance with this division. (B) any order pursuant to subdivision (a) shall... be limited to that portion of a... project activity or activities found to be in noncompliance only if a court finds that... the portion or specific project activity or activities are severable... (c)... except as expressly provided in this section, nothing in this section is intended to limit the equitable powers of the court.

11. 11 Substantive Effect of CEQA: Citizens For Quality Growth v. City Of Mount Shasta Facts Challenge to general plan reclass & rezoning of wetlands to business & manufacturing Challenge to general plan reclass & rezoning of wetlands to business & manufacturing EIR: EIR: 21 environmental impacts which might be reduced to insignificance with specified mitigation measures 21 environmental impacts which might be reduced to insignificance with specified mitigation measures 35 possible mitigation measures for the 21 impacts 35 possible mitigation measures for the 21 impacts 1 significant impact that could not be mitigated: conversion of wetlands 1 significant impact that could not be mitigated: conversion of wetlands Six alternatives to the proposed project Six alternatives to the proposed project e.g. Development of non-wetland area only e.g. Development of non-wetland area only City adopted statement of overriding considerations concerning loss of wetlands City adopted statement of overriding considerations concerning loss of wetlands

12. 12 Citizens for Quality Growth Petitioners’ Arguments City— City— Failed to make findings Failed to make findings Statement of overriding considerations inadequate; failed to address alternatives Statement of overriding considerations inadequate; failed to address alternatives EIR failed to adequately address physical deterioration of current business district EIR failed to adequately address physical deterioration of current business district

13. 13 Citizens for Quality Growth Holding Re Duty To Mitigate Project should not be approved “if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects.” § 21002 Project should not be approved “if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects.” § 21002

14. 14 Substantive Effect: Public Resources Code § 21081 CEQA Findings “... No public agency shall approve or carry out a project for which an environmental impact report... identifies one or more significant effects... unless both of the following occur: “... No public agency shall approve or carry out a project for which an environmental impact report... identifies one or more significant effects... unless both of the following occur: (a) the public agency makes one or more of the following findings with respect to each significant effect: (a) the public agency makes one or more of the following findings with respect to each significant effect: (1) changes or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects.... (1) changes or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects.... (2) those changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency. (2) those changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency. (3) specific economic, legal, social, technological, or other considerations... make infeasible the mitigation measures or alternatives.... (3) specific economic, legal, social, technological, or other considerations... make infeasible the mitigation measures or alternatives.... (b) with respect to significant effects which were subject to a finding under paragraph (3) of subdivision (a), the public agency finds that specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects....” (b) with respect to significant effects which were subject to a finding under paragraph (3) of subdivision (a), the public agency finds that specific overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects....”

15. 15 “Feasible” Public Resources Code § 21061.1 "Feasible" means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” "Feasible" means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.”

16. 16 Citizens for Quality Growth Holding re Findings City unlawfully failed to expressly — City unlawfully failed to expressly — Make requisite findings, or Make requisite findings, or Adopt or reject any of the proposed mitigation measures Adopt or reject any of the proposed mitigation measures “implicit” findings or adoption of mitigation measures are not adequate “implicit” findings or adoption of mitigation measures are not adequate Nothing binds the city to implement the mitigation measures Nothing binds the city to implement the mitigation measures

17. 17 Citizens for Quality Growth Holding re Alternative City failed to consider potentially feasible measure to mitigate loss of wetlands: restoration of equivalent amount of wetlands. City failed to consider potentially feasible measure to mitigate loss of wetlands: restoration of equivalent amount of wetlands. City: army corps of engineers will protect the wetlands City: army corps of engineers will protect the wetlands Court: Court: City cannot avoid responsibility for its decision City cannot avoid responsibility for its decision Each public agency is required to comply with CEQA Each public agency is required to comply with CEQA City must give this proposal due consideration City must give this proposal due consideration

18. 18 Guidelines § 15088 Evaluation of and Response to Comments “The lead agency shall evaluate comments on environmental issues received from persons who reviewed the draft EIR and shall prepare a written response... In particular, the major environmental issues raised when the lead agency's position is at variance with recommendations and objections raised in the comments must be addressed in detail giving reasons why specific comments and suggestions were not accepted. There must be good faith, reasoned analysis in response. Conclusory statements unsupported by factual information will not suffice.” “The lead agency shall evaluate comments on environmental issues received from persons who reviewed the draft EIR and shall prepare a written response... In particular, the major environmental issues raised when the lead agency's position is at variance with recommendations and objections raised in the comments must be addressed in detail giving reasons why specific comments and suggestions were not accepted. There must be good faith, reasoned analysis in response. Conclusory statements unsupported by factual information will not suffice.”

19. 19 Citizens for Quality Growth Discussion of Laurel Hills (top p. 6) City imposed mitigation measures that reduced significant impacts to acceptable level City imposed mitigation measures that reduced significant impacts to acceptable level City then did not require (or find infeasible) alternative of downsized project City then did not require (or find infeasible) alternative of downsized project Court of appeal upheld: Court of appeal upheld: City not required to find alternative infeasible City not required to find alternative infeasible CEQA does not mandate choice of the environmentally best feasible project if, through imposition of mitigation measures, impacts reduced to acceptable level CEQA does not mandate choice of the environmentally best feasible project if, through imposition of mitigation measures, impacts reduced to acceptable level

20. 20 Citizens for Quality Growth Holding re Effects on Business District City failed to consider physical effects on the current central business area City failed to consider physical effects on the current central business area CEQA requires consideration of indirect effects CEQA requires consideration of indirect effects “economic and social changes resulting from a project shall not be treated as significant effects on the environment. “economic and social changes resulting from a project shall not be treated as significant effects on the environment. Economic or social changes may be used, however, to determine that a physical change shall be regarded as a significant.... Economic or social changes may be used, however, to determine that a physical change shall be regarded as a significant.... Where a physical change is caused by economic or social effects of a project, the physical change may be regarded as a significant effect in the same manner as any other physical change....” guidelines § 15064(e) Where a physical change is caused by economic or social effects of a project, the physical change may be regarded as a significant effect in the same manner as any other physical change....” guidelines § 15064(e)