Center for Biological Diversity v. California Department of Fish and Wildlife
B280815
| Cal. Ct. App. | Dec 4, 2017Background
- Plaintiffs (environmental groups) challenged the California Department of Fish and Wildlife’s (CDFW) certification of the Newhall Ranch EIR and related project approvals under CEQA; this appeal follows remand from the California Supreme Court and a prior appellate decision.
- The Supreme Court found two EIR deficiencies: (1) unsupported conclusion that the project’s greenhouse gas (GHG) emissions were insignificant, and (2) mitigation for protecting the unarmored threespine stickleback constituted an unlawful take under Fish & Game Code §5515; it remanded to define the writ parameters under Pub. Resources Code §21168.9.
- On remand the trial court found only the GHG and stickleback portions noncompliant, ordered those portions of the EIR decertified (partial decertification), suspended two related approvals, and enjoined all project activity until corrective action; other approvals were left in place but subject to revisiting.
- Plaintiffs appealed, arguing as pure legal questions that (1) §21168.9 precludes partial decertification of an EIR, and (2) §21168.9 precludes leaving project approvals in place while decertifying parts of an EIR.
- The Court of Appeal reviewed statutory construction de novo and abuse-of-discretion for the trial court’s exercise of remedy tailoring and severability findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §21168.9 permits partial decertification of an EIR | §21168.9 does not allow a partly adequate EIR; an EIR must be fully certified or decertified | §21168.9 expressly permits voiding an agency determination "in whole or in part" and requires severability findings | Court: §21168.9 allows partial decertification if severability criteria in §21168.9(b) are met |
| Whether a court may leave some project approvals in place after partial decertification | Leaving approvals intact converts EIR into post hoc justification and violates CEQA | §21168.9(b) limits mandates to what is necessary; court can leave approvals if severance won’t prejudice compliance and can suspend activities that could harm environment | Court: Trial court may leave approvals in place when severability findings show they won’t prejudice CEQA compliance and project activities are suspended pending correction |
| Whether the trial court abused its discretion in issuing the limited writ and severability findings | The limited writ should have voided all approvals; leaving approvals risks undermining relief | Respondents: Court tailored writ, suspended all activities that could cause environmental harm, retained jurisdiction; severability findings were supported | Court: No abuse of discretion — severability findings and broad suspension of any activity causing adverse change preserved status quo and remedial power |
| Whether §21168.9 remedy suffices to address the Fish & Game Code §5515 taking | §21168.9 is CEQA-specific and cannot remedy a Fish & Game Code §5515 violation | The writ suspending stickleback-related approvals and activities prevents any authorized take and follows Supreme Court instructions | Court: Writ remedies are adequate to prevent unlawful take; streambed agreement also bars authorized take; §21168.9-based writ appropriately enforced compliance |
Key Cases Cited
- Center for Biological Diversity v. Department of Fish and Wildlife, 62 Cal.4th 204 (Supreme Court ruling identifying GHG and stickleback defects and remanding to define writ under §21168.9)
- Laurel Heights Improvement Assn. v. Regents of Univ. of California, 47 Cal.3d 376 (CEQA requires EIR certification before project approval)
- Lakin v. Watkins Associated Industries, 6 Cal.4th 644 (standards for appealability of postjudgment orders)
- Preserve Wild Santee v. City of Santee, 210 Cal.App.4th 260 (statutory reading of §21168.9 permits tailored remedies and partial voiding)
- Golden Gate Land Holdings LLC v. East Bay Regional Park Dist., 215 Cal.App.4th 353 (de novo review of §21168.9 interpretation; trial court remedy standards)
- San Bernardino Valley Audubon Society v. Metropolitan Water Dist., 89 Cal.App.4th 1097 (legislative purpose of §21168.9: flexibility to allow parts of projects to proceed while remedies are developed)
- LandValue 77, LCC v. Board of Trustees of Cal. State Univ., 193 Cal.App.4th 675 (discussing limits on partial decertification where severance findings lacking)
- Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal.App.4th 1184 (case requiring decertification where no severable aspects existed)