The California Supreme Court released its long-pending opinion in Sierra Club v. County of Fresno (No. S219783) on December 24, 2018. The County of Fresno certified an Environmental Impact Report for the 942-acre, 2,500 unit project known as Friant Ranch. Project opponents challenged the project on numerous grounds. The California Supreme Court granted review from the Fifth Appellate District decision, which found the EIR deficient for multiple reasons, including that it “was inadequate because it failed to include an analysis that correlated the projects emission of air pollutants to its impact on human health.” The Court identified four major topics to be addressed on review: the appropriate standard of review to apply when considering the adequacy of an EIR’s discussion of adverse environmental impacts and mitigation measures; whether CEQA requires an EIR to connect a project’s air quality impacts to specific health consequences; whether the EIR impermissibly deferred mitigation; and whether an agency may adopt mitigation measures that do not reduce impacts to a less-than-significant level.

On mitigation measures, the Court faulted the EIR for claiming mitigation measures would “substantially” reduce impacts but not to a less than significant level. The Court agreed with the Fifth Appellate District that the use of the term “substantial” in this context without further explanation or substantial evidence amounted to a bare conclusion. However, the Court determined that the EIR did not improperly defer mitigation by allowing the lead agency to later substitute equally or more effective air pollution control measures. Furthermore, it is not improper for lead agencies to adopt mitigation measures that do not reduce significant and unavoidable impacts to less than significant levels if no further feasible mitigation is available.

The Court’s holding on the standard of review is potentially concerning to applicants and lead agencies. The Court concludes that, on questions of mixed law and fact regarding the adequacy of an EIR and whether statutory criteria were met, de novo review is appropriate. To the extent factual questions predominate, the deferential substantial evidence standard of review applies. The Court does not provide clear guidance for making this distinction, and additional litigation will likely result.

The Court also concluded that the EIR analysis of health impacts resulting from air quality impacts was inadequate. The EIR explained the health impacts that could result from ozone and calculated the Project’s NOx and reactive organic compound emissions, which create ozone. However, the EIR never calculated how much ozone would result. Applicants explained that this calculation would be infeasible or scientifically uncertain, but the Court indicated that such an explanation should have been included in the EIR itself.

Again, court-made law will add to the complexity and expense of completing adequate EIRs for CEQA compliance. Complex and lengthy documents do not serve public participation and information disclosure purposes if those documents exceed the time and expertise available to the average public.