Center for Biological Diversity v. Department of Fish & Wildlife
62 Cal. 4th 204
Cal.2015Background
- DFW and the U.S. Army Corps prepared a joint EIS/EIR for the Newhall Ranch development (≈12,000 acres, ~20,885 homes). DFW certified the EIR in 2010 and approved the project; plaintiffs sued under CEQA.
- The EIR quantified project GHG emissions (269,053 MTCO2e/year) and compared them to a project-level “business-as-usual” (BAU) projection (390,046 MTCO2e) to show a 31% reduction vs. BAU; the Scoping Plan’s statewide BAU reduction target was ~29%. DFW concluded impacts were less-than-significant by that comparison.
- The EIR included mitigation measures (BIO-44, BIO-46) calling for capture/relocation of unarmored threespine stickleback during construction.
- Plaintiffs challenged the GHG significance analysis, the fish-capture mitigation as an unlawful “take” under Fish & Game Code §5515, and preservation/timeliness of two comment-based claims (cultural resources and steelhead smolt impacts).
- The trial court granted relief on various grounds; the Court of Appeal reversed. The California Supreme Court granted review and (1) evaluated the lawfulness and evidentiary support for using AB 32/BAU comparison as a CEQA significance criterion, (2) addressed whether the stickleback relocation could be used as CEQA mitigation, and (3) considered whether plaintiffs timely preserved two claims in the administrative record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Is comparing project GHGs to AB32/Scoping Plan BAU a permissible CEQA significance criterion? | AB32 consistency is improper baseline; must compare to existing conditions. | AB32-consistency and BAU comparison are permissible under Guidelines §15064.4 and lead-agency discretion. | Permissible method, but DFW’s no-significance finding (31% vs. BAU) lacked substantial evidence and reasoned explanation tying project-level reduction to the Scoping Plan’s statewide target. |
| 2) May EIR specify capture/relocation of fully protected stickleback as CEQA mitigation? | Such relocation is permitted conservation, not a prohibited take. | DFW/Newhall contended relocation serves conservation and is allowable; the EIR may rely on it as mitigation. | No. Fish & Game Code §5515 bars taking/possession of fully protected fish as CEQA mitigation; capture/relocation as specified in the EIR constitutes a prohibited take when relied on as mitigation. |
| 3) Were comments on final EIS/EIR (cultural resources, steelhead smolt) timely to exhaust administrative remedies under Pub. Resources Code §21177? | Comments made during federal final EIS comment period should preserve CEQA claims. | DFW/Newhall argued those comments were too late under CEQA (no final-EIR comment period required). | Timely. Because DFW participated in the federal final-EIS comment/response process, treated that period as an optional final-EIR comment period, and incorporated responses, plaintiffs exhausted administrative remedies. |
| 4) Remedy / remand scope | Plaintiffs sought vacatur and further proceedings. | DFW/Newhall urged affirmance. | Court reversed Court of Appeal: remand for Court of Appeal to (a) address merits as needed in light of exhaustion holding and (b) determine writ parameters; EIR must be supported by substantial evidence on GHG method or revised; stickleback mitigation must be reworked. |
Key Cases Cited
- Communities for a Better Environment v. South Coast Air Quality Management Dist., 48 Cal.4th 310 (permissible baseline for CEQA significance; baseline must normally be existing physical conditions)
- Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova, 40 Cal.4th 412 (CEQA review standards; de novo review of procedures, deferential factual review)
- Laurel Heights Improvement Assn. v. Regents of University of California, 47 Cal.3d 376 (EIR sufficiency and substantial evidence standards)
- Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection, 44 Cal.4th 459 (administrative exhaustion and timing of comments under §21177)
- Citizens for Responsible Equitable Environmental Development v. City of Chula Vista, 197 Cal.App.4th 327 (approving AB32-consistency as permissible CEQA threshold in appellate decisions)