We are pleased to report that the California Third District Court of Appeal recently granted our request to publish its decision in a California Environmental Quality Act (CEQA) case. Mount Shasta Bioregional Ecology Ctr. v. Cnty. of Siskiyou, No. C064930, 2012 Cal. App. LEXIS 1088 (Cal. Ct. App. Sept. 26, 2012), involved a CEQA-based challenge to the certification of an environmental impact report (EIR), based among other claims on the argument that the EIR failed to include an adequate range of alternatives. The Court's rejection of this argument provides precedent that an EIR can be upheld where the record shows no feasible project alternatives were available. Stoel Rives attorney Barbara Brenner represented Roseburg Forest Products Co. (Roseburg) in the case.
Roseburg had sought approval of an expansion of its existing veneer-processing facility to develop a biomass-fueled cogeneration power plant. Heat generated in the boiler would be used both for the veneer-manufacturing process and for the generation of electricity for resale. The main objective of the project was to generate and sell excess power that is produced using sustainably harvested renewable resources, offsetting the need for additional electricity generated from the burning of fossil fuels to support the existing facility operations.
EIR Certification Challenged
Plaintiffs Mount Shasta Bioregional Ecology Center and Weed Concerned Citizens challenged the certification of the EIR on grounds it violated CEQA. One of the arguments was that the EIR failed to include an adequate range of alternatives to the project. CEQA Guidelines state that an EIR must "describe a range of reasonable alternatives to the project … which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project[.]" CEQA Guidelines § 15126.6 (a). "There is no ironclad rule governing the nature or scope of the alternatives to be discussed other than the rule of reason." Id.
The EIR for the Roseburg project considered but rejected the Reduced Capacity Alternative, Alternative Boiler Location Onsite and an Alternative Location Offsite. Each of these alternatives was rejected because it either increased potential environmental effects or failed to meet the project objective. The No Project alternative was analyzed in depth in the EIR; however, the other three alternatives were rejected in the scoping phase as not feasible.
The Court of Appeal Ruling
The Court of Appeal rejected plaintiffs' assertion that at least one other feasible alternative other than the No Project alternative must be fully analyzed in the EIR. The Court directly held that an EIR does not fail because all alternatives considered during the scoping phase are determined not to be potentially feasible. Plaintiffs' assertion that an EIR with no feasible alternatives violates CEQA was rejected.
The Significance of the Ruling
The case is significant for two reasons. First, it provides precedent for a lead agency and project proponent to reject alternatives that are not feasible and avoid the time and cost of analyzing an infeasible alternative for fear of a CEQA suit. Second, the Court upheld the rule of reason in its finding that the analysis of the project and the No Project alternative amounted to a reasonable range of alternatives. CEQA practitioners often advise clients to identify at least one alternative that is potentially feasible. Based on this determination, a record clearly showing there is no feasible project alternative can be upheld.