North Coast Rivers Alliance v. A.G. Kawamura (January 4, 2016) Third District Court of Appeal Case No. C072067

Why It Matters: This opinion reconfirms the importance of project objectives in selecting a reasonable range of alternatives for consideration in an EIR. The relationship between the underlying purpose of a project, the statement of project objectives, and the alternatives in an EIR is examined in this case where the Department of Agriculture narrowly crafted its project objectives in a manner that not only limited the range of alternatives considered but also failed to reflect the fundamental purpose of the project.

Facts: The California Department of Food and Agriculture (Department) prepared and certified a programmatic environmental impact report (EIR) for a seven-year program with a stated goal to eradicate an invasive pest: the light brown apple moth. After the Department circulated the Draft EIR, but before it approved the program, it received new information from the U.S. Department of Agriculture (USDA) that because the moth had already spread to such an extent in California, eradication was no longer feasible. The USDA advocated a control and suppression strategy to avoid the moth spreading to other states. Shortly thereafter the Department certified the EIR, and approved a seven-year control program rather than the originally proposed eradication program. Although the EIR had stated that eradication was "fundamentally different" than control, in adopting findings to support its approval, the Department found that the control objectives merely "differed somewhat" from the eradication objectives in the EIR. The Department did not conduct supplemental environmental review in connection with the change from eradication to control, and the EIR, as certified, did not evaluate control as an alternative to eradication. Petitioners alleged that the change from eradication to control rendered the EIR deficient for failing to provide an accurate and stable project description, failing to analyze a reasonable range of alternatives and cumulative impacts, and improperly segmenting the project because the approved control program would extend beyond the seven years analyzed in the EIR for the eradication program.

The Decision: In a section titled "Last-Minute Change," the court discussed the Department's attempts to bolster its environmental analysis to support the last-minute change from eradication to control. Putting aside issues as to whether this change violated CEQA by creating an unstable project description or improperly segmenting the project by analyzing a seven-year program that could go on indefinitely, the court concluded that the EIR violated CEQA because the alternatives analysis was inadequate.

The court held that the EIR failed to consider a reasonable range of alternatives to the eradication program. The EIR's alternatives discussion focused entirely on achieving eradication—the stated objective of the project—and summarily rejected anything that would not accomplish complete eradication, including a control program. The court found this to be improper, and that the objective of eradication was improperly narrow, especially given the purpose of the program was protection of crops and native plants. According to the court, the statement of objectives must include the underlying purpose of the project. Here, however, the underlying purpose was protection of species, not eradication of the moth, and the Department confused the CEQA project, objectives and purposes. Thus the project objective of complete eradication improperly narrowed the alternatives analysis, which should have included a control program alternative.

The court then addressed whether the EIR's failure to evaluate a control program was prejudicial. The Department argued that its ultimate adoption of a control program eliminated any prejudice and that the approval of a control program actually reduced the scope of the project, and thus was adequately covered by the EIR. In conducting its analysis, the court discussed prior situations where an agency selected an alternative that was not analyzed in the EIR based on new information and the court upheld the approval without requiring a revised project description or recirculation of the environmental document. In that case, however, the court noted that there was substantial evidence in the record demonstrating that the change was not significant new information requiring new analysis or recirculation. Here, however, there was no evidence to support the Department's assertion that the change from eradication to control was insignificant. Because the EIR did not analyze a control alternative, and there was no substantial evidence in the record to support this conclusion, the court held that the EIR and the Department's approval was defective.

Petitioners also alleged that the EIR failed to appropriately consider site-specific impacts associated with the program. The court rejected this contention, noting that such analysis was beyond the programmatic nature of the EIR. The EIR identified a number of areas that would likely be subject to the program, stated that it was impossible to determine exactly where the program would be implemented, and promised that notification procedures would be followed prior to deploying treatments at specific locations. According to the court, CEQA does not require identification of every possible treatment site and that only if future, site-specific activity will create unanalyzed impacts or require mitigation measures not previously discussed would a site-specific document be required.

Finally, the court addressed the contention that the cumulative impacts analysis failed to consider impacts that would result from the project's continuance beyond the program's defined seven years. The Department argued that it was speculative as to whether the program would actually continue beyond seven years. The court found this argument disingenuous because the EIR specifically acknowledged that the eradication program was originally chosen because a control program would be unending in nature. The court concluded the cumulative impacts analysis must include consideration of "reasonably foreseeable" impacts.

Practice Pointers:

  • When preparing project objectives, the objectives must be consistent with the project purpose to ensure the alternatives analysis considers a reasonable range of alternatives that would meet the project objectives.
  • When a project has an undefined term, the EIR need not speculate but must consider all "reasonably foreseeable" impacts.