CEQA: Second District Court of Appeal Affirms Trial Court Authority to Limit Decertification of EIR
In a case certified for partial publication, the Second District Court of Appeal addressed the Public Resources Code section 21168.9 mandate that a court’s order overturning the CEQA decision of a public agency shall be limited to the scope necessary to bring the agency’s decision into compliance with CEQA.
The case, Center for Biological Diversity v. California Department of Fish and Wildlife (2017) 17 Cal.App.5th 1245, stems from the Newhall Ranch cases, which culminated in a Supreme Court decision identifying errors with the EIR’s treatment of GHGs and impacts to an endangered fish. The case was ultimately remanded back to the trial court, with instructions to enter an order following the Supreme Court’s direction. The trial court entered an order directing CDFW to decertify only the portions of the EIR addressing GHG’s and the endangered fish mitigation measures. Plaintiffs’ appealed the order, arguing that CEQA provides no basis for partial decertification of an EIR.
The Second District Court of Appeal rejected Plaintiffs’ argument, noting that the CEQA statute (and extensive existing jurisprudence) supports the opposite conclusion. Public Resources Code section 21168.9 states that any order overturning an agency’s CEQA determination “shall include only those mandates which are necessary to achieve compliance with [CEQA] and only those specific project activities in noncompliance with [CEQA].” The Second District Court of Appeal concluded that a trial court may partially decertify an EIR, so long as the trial court makes the appropriate severance findings described in Public Resources Code section 21168.9, subdivision (b).
This case serves an important reminder for agencies and respondents facing adverse trial court rulings on a CEQA determination: CEQA requires that orders be limited in scope to only what is necessary to fix the CEQA document. Trial courts may not always be familiar with section 21168.9, especially if the court does not hear many CEQA cases. Furthermore, it’s in the plaintiff’s best interest to ignore this section. Thus, it falls on respondents and real parties to ensure that trial courts follow the dictates of CEQA when issuing orders overturning CEQA determinations.