In a lengthy opinion filed December 2, 2015, and belatedly ordered published on January 4, 2016, the Third District Court of Appeal invalidated the California Department of Food and Agriculture’s (CDFA) programmatic EIR for a seven-year program to eradicate an invasive pest – an Australian native insect known as the light brown apple moth (LBAM) – that threatens California’s native plants and agricultural crops. North Coast Rivers Alliance, et al. v. A.G. Kawamura/Our Children’s Earth Foundation, et al. v. California Department of Food and Agriculture (2015) ___ Cal.App.4th ____, 2015 WL 9598273 (consolidated appeals C072067, C027617).  It reversed the trial court’s judgments denying appellants’ mandate petitions and remanded with directions to grant them.

As brief background, since its early 2007 discovery in Berkeley and surrounding Bay Area counties, the LBAM has spread rapidly despite federal quarantine orders and emergency state legislation aimed at stopping it. In 2008, CDFA began preparing the EIR for an eradication program.  While the DEIR’s alternatives chapter studied options for “tools” for eradication, it did not study alternatives to the eradication program itself.

The Court of Appeal held the EIR’s primary flaw was that it failed to analyze a feasible alternative to the CEQA “project” that it studied (i.e., the 7-year program to completely eliminate the LBAM from California) – namely, the alternative of a continuing program of indefinite duration to simply control LBAM populations to prevent unacceptable damage levels.  Underscoring the point, while CDFA certified its program EIR for the eradication program – defining the project’s “objective” in that “artificially narrow” manner and thus omitting analysis of pest control as an “infeasible” alternative to meet the objective – CDFA ultimately adopted a control program as its approved project after new information came to light shortly before EIR certification that eradication was actually infeasible.  Because “the EIR dismissively rejected [any] control feature that would not achieve eradication, and the EIR’s cumulative impacts discussion did not address the reasonably foreseeable need to continue pest control efforts after expiration of the [studied] seven-year period[,]” the “record [was] devoid of evidence to prove CDFA’s claim that the last-minute change was legally acceptable because the adopted control program was narrower than the EIR’s eradication program.”

The Third District’s decision, much like its other recent opinion in Center for Biological Diversity v. Department of Fish and Wildlife (2015) 234 Cal.App.4th 214 (see my post on that decision here), provides valuable guidance on the proper elements and function of a program EIR covering a series of related actions to occur at numerous locations (many of which are currently unknown) throughout large areas of the State.

Interesting “takeaways” from the Third District’s recent decision include:

  • The EIR and other record evidence emphatically established that eradication and control programs were fundamentally different, thus undercutting CDFA’s litigation argument that the control project it approved at the “last minute” was merely a “reduced impact” version of the eradication program analyzed in the EIR. For example, by contrast to the 7-year program studied, the Court noted that materials in the DEIR’s appendix “acknowledged that ‘if an exotic pest becomes permanently established in California, control measures will be needed forever.’”
  • Per the Court: “[The] prejudice [from the EIR’s failure to address control as an alternative to eradication] was compounded because the EIR’s cumulative impacts discussion failed to address the reasonably foreseeable need for continued control activities.  Accordingly, CDFA’s ultimate selection of an alternative (control program) not analyzed in the EIR left the EIR inadequate as failing to include relevant information and precluding informed decisionmaking and  informed public participation. [¶] … Here, the new information [showing eradication was infeasible] was clearly significant, since it caused CDFA to change the program.  Although CDFA claims the change reduced the scope of the program, appellants make the plausible argument that the change expanded the program into one of indefinite duration.  The manner in which CDFA conducted the environmental review process – ignoring anything that would not achieve eradication – leaves the record without substantial evidence to support CDFA’s claim.”
  • Also per the Court, the EIR mislabeled “tools” for achieving eradication as program “alternatives,” “confuse[d] the CEQA project, objectives, and purposes[,]” improperly defined the program “objective” in an “artificially narrow” manner as “eradication,” and failed to include in the objectives the “underlying purpose of the project” – which was “protection of plants and crops.” (Citing and quoting from In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143, 1163-1166.)  Per the cited Supreme Court decision, while a lead agency “may structure its EIR alternatives analysis around a reasonable definition of underlying purpose and need not study alternatives that cannot achieve that basic goal[,]” it “may not give a project’s purpose an artificially narrow definition.”  (Id. at 1166; see also id. at 1163 [“The statement of objectives should include the underlying purpose of the project.”].)
  • CDFA’s failure to study in the EIR the control program it ultimately adopted was an “unequivocally prejudicial” “error infect[ing] the entire EIR[.]” Per the Court:  “It is possible a control program may not be a viable alternative on the ground [because] its unending nature would be more harmful to the environment than an eradication program.  On the other hand, it could be that an eradication program would require a more intensive application of tools than a control program, leveling out the environmental impacts.  We do not know, because CDFA skirted the issue.”
  • The Court also noted that CDFA equivocated as to whether a CEQA-compliant EIR would be required in the future to evaluate the reasonably foreseeable post-2017 LBAM control activities not analyzed the EIR.
  • Addressing an important procedural principle applicable in CEQA litigation (both at the trial and appellate levels), the Court of Appeal stated: “Our finding of CEQA violations as to some issues does not relieve us from reviewing appellants’ other contentions.”  (Citing Pub. Resource Code, § 21005(c), for the proposition that “any court that finds a CEQA violation “shall specifically address each of the alleged grounds for noncompliance[,]” “but also citing Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 101-102, for the proposition that the statute “does not require [an] appellate court to address additional alleged defects that may be addressed in a completely different and more comprehensive manner upon CEQA review following remand[.]”)
  • The Court went on to hold that “appellants’ claims of insufficiency of the evidence [to support the EIR’s conclusions regarding the project’s impacts on private pesticide use] do not constitute a separate ground for reversal of the judgment.” It also concluded appellants failed to show reversible error in the “No-Program Alternative” analysis, failed to show the EIR inadequately analyzed several areas of impacts, and forfeited some substantial evidence challenges by failing to lay out the relevant evidence in the 70,000-plus page administrative record.  (Citing State Water Resources Control Board Cases(2006) 136 Cal.App.4th 674, 749-750 for the proposition that “CEQA does not exempt appellants from [the] ordinary rule that [a] substantial evidence argument is forfeited by failing to cite all material evidence on the subject” and quoting Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658: “[T]he burden to provide a fair summary of the evidence ‘grows with the complexity of the record.’”)
  • Appellants forfeited another claim concerning inadequate study of foreseeable accidental fertile moth release by failing to raise it in their opening brief. (Citing Garcia v. McLutchen(1997) 16 Cal.4th 469, 482, fn. 10, for proposition that “appellant may not raise new argument in reply brief[.]”)
  • The Court declined to address some other contentions, including separate allegations of additional flaws in the EIR’s cumulative impacts analysis (unrelated to the flawed alternatives analysis) since its alternatives analysis finding “necessarily requires a new cumulative impacts discussion in the event CDFA undertakes the further environmental review needed to proceed with the program.” Any such revised analysis would have to discuss the effects of reasonably foreseeable future projects, including “the reasonably foreseeable need to continue anti-LBAM activities after expiration of the seven-year period and into the foreseeable future[.]”

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The common-sense lessons for preparing CEQA-compliant EIRs that may be gleaned from this case go beyond the program EIR context and include: (1) don’t define project objectives in an artificially narrow fashion so as to exclude study of feasible alternatives that might serve the project’s purpose and reduce impacts; (2) do include in the EIR’s statement of project objectives the underlying purposes of the project; (3) don’t fail to revise and recirculate the EIR if significant new information become available after circulation of the draft but prior to certification of the final EIR indicating the project (or program) proposed for approval is actually infeasible; and (4) don’t approve an unanalyzed project that the EIR you are relying on for CEQA compliance expressly dismissed and rejected as being an infeasible alternative.