California Supreme Court Strikes Down EIR for Failure to Consider Potential ESHA on the Project Site
In a recent decision, the California Supreme Court added to the complexity of CEQA review for projects in coastal areas. On March 30, 2017, the Supreme Court issued its holding in Banning Ranch Conservancy v. City of Newport Beach (S227473), which struck down an Environmental Impact Report (EIR) prepared by the City of Newport Beach for a mixed-use development project located on an approximately 400-acre coastal zone site. The Supreme Court found fault in the EIR on a single issue: the City failed to discuss potential impacts on areas which might be designated environmentally sensitive habitat areas (ESHA) under the California Coastal Act at some time in the future.
In its holding, the Supreme Court admitted that the EIR provided a detailed biological analysis of project impacts. However, the Court felt that the analysis fell short by omitting “any consideration of potential ESHA from the EIR.” (Bold added.) The Court also criticized the City for not adequately discussing disputes between Coastal Commission staff and the City on the subject of ESHA. The Court was also unconvinced by the City’s argument that the City could (and perhaps should) defer discussion of potential ESHA on the project site because the Coastal Commission would need to make separate findings regarding ESHA prior to issuing a coastal development permit for the project.
The Supreme Court’s decision increases the complexity of CEQA review for projects located in coastal zones, as lead agencies must now speculate as to whether areas subject to the Coastal Act could, at some unknown time in the future, be classified as ESHA by the Coastal Commission. In turn, this becomes another element of the environmental review process subject to challenge by project proponents. These and other decisions unnecessarily expand CEQA requirements and increase the expense of environmental review as well as the length of environmental documents. From this decision, it’s unclear whether the courts understand the practical implications of the growing body of CEQA jurisprudence. Average CEQA documents are now reaching lengths and levels of technical complexity which make the documents inaccessible and/or incomprehensible to the general public which, lest we forget, is the entire purpose of CEQA.