243 Cal. App. 4th 647
Cal. Ct. App.2015Background
- CDFA prepared and certified a programmatic EIR for a seven-year LBAM (light brown apple moth) eradication program, stating the objective as eradication (goal later framed as by 2017).
- The DEIR/FEIR analyzed five "tools" (SIT, twist-ties MD-1, ground pheromone MD-2, Bio‑P wasp release, and foliar insecticides Btk and Spinosad) and treated "control/IPM" as distinct from eradication and not a project alternative.
- Three days after advance notice from USDA/APHIS that eradication was infeasible and the federal program would shift to control, CDFA certified the EIR but "at the last minute" approved a seven‑year program focused on containment/control rather than eradication without supplemental CEQA review.
- Petitioners (two consolidated appeals) challenged the sufficiency of the PEIR under CEQA for (inter alia) artificially narrow project objectives, failure to analyze a control alternative, inadequate cumulative impacts, and an unstable/segmented project description caused by the last‑minute change.
- The trial court denied petitions; the Court of Appeal reviewed de novo whether the administrative record showed legal error or was supported by substantial evidence and reversed, remanding with directions to grant the writs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EIR impermissibly defined project objective so narrowly (eradication) and omitted a control alternative | EIR improperly set objective as eradication, relegated crop/plant protection to "purpose," so CDFA should have analyzed a control/IPM program as a reasonable alternative | CDFA claimed eradication was the proper objective; control differs only by intensity and was thus unnecessary to analyze | Court held objective was artificially narrow; CDFA must have evaluated control as a reasonable alternative and failure was prejudicial (reversible error) |
| Whether last‑minute shift from eradication to control required supplemental CEQA review or rendered project description unstable/segmented | Change to control expanded scope (potentially indefinite duration) and required new/supplemental review; EIR’s analysis was inadequate for approved project | CDFA argued the change reduced scope and impacts (less intensity) and that the approved program still fell within the PEIR analysis; any further action beyond seven years would trigger CEQA review | Court found the record lacked substantial evidence to support CDFA's contention that control was narrower; the last‑minute change did not cure defects and raised the foreseeable need to address post‑2017 activities; reversal required |
| Whether the EIR’s No‑Program Alternative (NPA) assumptions (increased private pesticide use and crop damage) lacked substantial evidence | Plaintiffs argued CDFA relied on flawed/extrapolated studies and mis‑assessed quarantines’ effect, so NPA analysis was unsupported | CDFA relied on published studies, expert reports, and observed LBAM spread to support reasonable assumptions | Court rejected reversal on this ground: CDFA had substantial evidence to support the NPA assumptions; not reversible error here |
| Whether EIR inadequately analyzed cumulative and site‑specific impacts (including duration/indefinite control measures) | Plaintiffs argued EIR failed to analyze cumulative effects of reasonably foreseeable ongoing control measures and site‑specific impacts | CDFA argued program EIR need not contain detailed site‑specific analyses and cumulative impacts were speculative beyond seven years | Court held cumulative impacts discussion must include reasonably foreseeable need to continue anti‑LBAM measures beyond seven years; remand required to address this in any further review; site‑specific deferral to subsequent review not currently reversible given program EIR template |
Key Cases Cited
- In re Bay-Delta etc., 43 Cal.4th 1143 (court must guard against artificially narrow project objectives in EIRs)
- Laurel Heights Improvement Assn. v. Regents of University of California, 47 Cal.3d 376 (programmatic EIR sufficiency and informational role of EIR)
- Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, 57 Cal.4th 439 (prejudice standard for CEQA omissions; error is prejudicial if it deprived public/decisionmakers of substantial relevant information)
- Western Placer Citizens for an Agricultural & Rural Environment v. County of Placer, 144 Cal.App.4th 890 (when changed project description after FEIR does not always require recirculation if evidence shows change is not significant)
- Center for Biological Diversity v. Dept. of Fish & Wildlife, 234 Cal.App.4th 214 (program EIR may defer site‑specific analysis when program EIR adequately addresses likely impacts)
- Chaparral Greens v. City of Chula Vista, 50 Cal.App.4th 1134 (review of whether new information requires revision of an EIR)
- Communities for a Better Environment v. City of Richmond, 184 Cal.App.4th 70 (scope of appellate review under Pub. Resources Code §21005(c))