Agencies Should Pick a Project, Describe It and Analyze Alternatives to that Project
In the latest round of litigation surrounding the proposed Upper Truckee River Restoration and Golf Course Reconfiguration Project in the South Lake Tahoe area, California's First District Court of Appeal in Washoe Meadows Community v. Department of Parks and Recreation (1st Dist. 2017, _____ Cal.App.5th _____) invalidated an Environmental Impact Report (EIR) prepared under the California Environmental Quality Act (CEQA). The EIR identified "five different alternatives for addressing the Upper Truckee River's contribution to the discharge of sediment into Lake Tahoe, and indicated that following a period for public comment, one of the alternatives, or a variation thereof, would be selected as the project." Slip Opinion at 9.
Because of federal involvement in the project, the EIR also served as an Environmental Impact Statement (EIS) under the National Environmental Policy Act (NEPA). Under NEPA, it is standard practice to analyze a number of feasible alternatives and to pick a preferred alternative only if one exists. While there are cases upholding this practice under NEPA, there was no CEQA case law allowing or disallowing the analysis of more than one alternative as the project in the draft EIR. Here the court acknowledged that while the EIR "described the broader project's environmental effects," it determined that the lack of a single project description "was an obstacle to informed public participation, even if we cannot say such input would have changed the project ultimately selected and approved." Slip Opinion at 9, 12. The court was not persuaded to follow NEPA precedent as "California courts will not follow NEPA precedent that is contrary to CEQA." Slip Opinion at 11-12.
This case applies only in situations where a lead agency does not set forth a single project in the project description. The court emphasized that "[w]hile there may be situations in which the presentation of a small number of closely-related alternatives would not present an undue burden on members of the public wishing to participate in the CEQA process, in this case the differences between the five alternative projects was vast, each creating a different footprint on public land." This case is especially relevant for linear projects such as a roads, pipelines or railways. The case does not affect the need to identify, analyze and adopt feasible alternatives that have reduced environmental impacts than the project as CEQA requires.