Law Review: Aggregate operation expansion EIR challenged
When a large project is proposed, such as Syar Industries expansion of its aggregate operations in Napa County, the California Environmental Quality Act specifies what must be included in the environmental impact report (EIR) analyzing the project and its impacts. It is not uncommon for a large project to be challenged in court claiming the project EIR is legally inadequate. See Stop Syar Expansion v. County of Napa, our case for today’s column.
SEVEN YEARS OF ENVIRONMENTAL REVIEW
A group known as Stop Syar Expansion had long opposed the expansion of Syar Industries aggregate operations in Napa County. After more than seven years of environmental review and numerous hearings, the county planning commission certified the final EIR and approved a much smaller project than originally sought. The approval included more than a hundred pages of conditions and mitigation measures. Stop Syar appealed the EIR and the project and the matter proceeded before the county board of supervisors.
The supervisors in a 109-page decision rejected Stop Syar’s appeal and certified the EIR and approved an even further-modified project. Stop Syar sued – challenging the certification of the EIR and approval of the project – asserting sixteen deficiencies in the EIR.
The trial court ruled for Napa; Stop Syar timely sued.
PURPOSE OF AN EIR
As the First Appellate District Court of Appeal wrote, “The basic purpose of an EIR is to provide public agencies and the public in general with detailed information about the effect that a proposed project is likely to have on the environment; to list ways in which the significant effects of such a project might be minimized; and to indicate alternatives to such a project.”
Unlike a Negative Declaration, an EIR is presumed adequate so the parties challenging an EIR and project have the burden to document a prejudicial abuse of discretion by the approving agency.
The ultimate inquiry, as case law and CEQA guidelines make clear, is whether the EIR includes enough detail “to enable those who did not participate in the preparation to understand and to consider meaningfully the issues raised by the proposed project. Does the EIR provide decisionmakers with sufficient analysis to intelligently consider the environmental consequences of a project….the courts look not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.”
In a lengthy 75-page opinion the Court of Appeal reviewed the adequacy of the Napa County project EIR.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
In addition to analyzing the legality of the EIR, the Court of Appeal also reviewed whether Stop Syar, the petitioners challenging the expansion of the aggregate operation, exhausted their administrative remedies. That is, did they properly put before the planning commission and board of supervisors matters they believed were not properly analyzed in the EIR. In short, you can’t for the first time argue in court that the EIR was flawed, you must highlight those alleged deficiencies during the hearings before the approving bodies.
The exhaustion doctrine is not satisfied if the objections raised by the opponents to the project are not specific so as to allow the approving agency the opportunity to evaluate and respond to them. As the courts have written, “the bland and general references to environmental matters does not satisfy the exhaustion document…the ‘exact issue’ must have been presented to the administrative agency.” Syar and Napa County, of course, argued the project opponents had not exhausted their administrative remedies by pointing out the flaws in the EIR and the project during the administrative hearings.
The Court of Appeal in an extremely detailed and seemingly well written opinion discussed Stop Syar’s issues point by point and ultimately concluded that all of the issues raised by the petitioners had been discussed in the EIR or had not been properly brought up during the administrative hearings thus were dismissed for failure to exhaust administrative remedies.
Preparing EIRs is a tricky business. In this case after almost ten years of environmental review and hearings and a court challenge, the Napa project was approved. Napa is not entitled to have its attorney’s fees reimbursed as prevailing party. If Stop Syar had prevailed it would have been allowed to ask the court to have its attorney’s fees paid by the County and Syar as allowed under CEQA.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or http://www.portersimon.com.
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