*1 Dist., Aug. Div. Twо. [No. 1991.] B053286. Second al., LA
FRIENDS OF VINA et Respondents, Plaintiffs ANGELES, COUNTY OF LOS Defendant and Appellant; CANTWELL-ANDERSON, INC., al., et Real Parties Interest Appellants.
Counsel Clinton, Counsel, De Witt W. County Charles J. and Richard Moore D. Weiss, Counsel, Hill, Burrill, Deputy County Farrer & Darlene Fischer and Dean E. Phillips Dennis for Defendant and Appellant. Samuels,
Hamilton & Paul Hamilton and Karen J. Lee Real Parties Interest and Appellants. Hahn,
James K. City (Los Attorney Angeles), Patricia TXibertand V. Curt Renne, Holguin, Deputy City Attorneys, (San Louise H. City Attorney Yee, Francisco), Judith Boyajian and Melba Nossa- Deputy City Attorneys, man, Guthner, Elliott, Kaufer, Wilson, &Knox Alvin S. Winfield D. Kenneth Cox, B. Bley & Castle Nicholson and Kenneth B. as Amici Curiae Bley on behalf of Defendant and Real Appellant Parties Interest Appellants.
Proskauer, Rose, Mendelsohn, Kuenzel, Goetz & Robert V. Elizabeth F. Skolar, Bucksbaum, Nicholas P. Connor and Deborah S. for Plaintiffs and and as Amici Respondents Curiae on behalf of Plaintiffs and Respondents. Hall, Jr., Carlson, Moor, &Hall W. Ann Phillips, Carlyle Georganne Carl H. Thomsen and Robyn Prud’homme-Bauer as Amici Curiae on behalf of Plaintiffs and Respondents.
Opinion FUKUTO, J. of Los Angeles (County), and real parties —Defendant Cantwell-Anderson, Inc., in interest joint its venturer Southwest Diver- sified, Inc. (applicants), from a appeal judgment granting a writ of mandate requiring County’s set approval applicants’ project be aside work suspended pending of a proper impact report (EIR) in with the compliance California Quality Environmental Act (CEQA).1 The rationale of the judgment was that does not permit public agency, charged sections and 21151 with 21082.1 preparing EIR, to generate it requiring consultant to draft the analytical documentation. we find Because the trial court’s construction of statute, CEQA’s Guidelines, “prepаration” requirement odds with the and prior judicial we shall applications, reverse and remand the *5 case for redetermination. further Appellants’ from a appeals postjudgment order will denying reconsideration be dismissed as moot.2
Facts In 1986 applied Cantwell-Anderson to the for County approval of a amendment, specific plan, rezoning, and general (community) to plan permit residential and school private of 220 in development largely acres open Altadena. EIR Determining that an would be the required, County’s depart- ment of regional planning established (Department), following County pro- cedure, directed Cantwell-Anderson to a engage private consultant to pre- the pare (the contractor). documentation
The contractor submitted an initiаl draft of the draft EIR required by 1987, Guidelines sections in 15084-15087 June and the released the County Code, 13, 21000-21177, 1Public Resources division sections hereafter cited section number alone. regulatory guidelines, promulgated by Agency the Resources under CEQA’s 14, 3, sections 21083 and 21087 and chapter codified title sections 15000-15387 of the Regulations, California Code of are referred to and cited as Guidelines. 2Although the dispose did not a conjoined declaratory cause of action for relief, we jurisdiction have appeals over the qualification under the one-judgment rule Highland discussed in Development City Co. v. (1985) Los Angeles Cal.App.3d Cal.Rptr. 179 [215 881]. In other March the agencies draft for comment November. comments and the Coun- Department containing distributed a volume these them, the had drafted. The draft ty’s responses initially tо which contractor comment, EIR and addendum then released the were to public March the issued a second to these County responses, volume comments, section The contractor also drafted required by Guidelines 15088. these responses.
Between the May regional planning 1988 and com- July County’s mission held five some hearings eliciting on public application, referred to. The then voted to just planning comments commission recommend to the board of modified approval supervisors, proposal, but 274 and by reducing number of residences from 360 to replacing school site with use. private park (Board) board considered on three supervisors application
occasions, November, 1989. The September, December Board simul- EIR, EIR, taneously considered the final the draft consisting of responses comments, and a final volume included findings about proposed in the issues raised review process, closely tracking contractor’s drafts. about the EIR’s contents response public complaints during the Board hearings, various required departments involvement, respond. These responses, prepared without contractor gener- ally endorsed the EIR. The Board approved a four-to-zero application vote, adopting the planning commission’s reduction of residential density but reserving ultimate of the school later disposition site for consideration.
Plaintiffs, an ad organization hoc who had consistently residents op- posed project challenged then commenced the present action, for writ of mandate and relief. Plaintiffs declaratory challenged *6 validity of the EIR and project approval grounds, on numerous that including had County delegated the EIR improperly to the preparation of contrac- contention, tor. support this relied on the plaintiffs administrative and record on that the declarations contained little County’s files County- generated concerning documentation the project.
After several briefing, rounds of filed declarations by Kerwin Chih, formerly senior planning Department assistant responsible processing Eric Ruby, contractor’s services director. They described draft development by EIR’s Department revisions, review direction of the document underwent three whereby more drafts after initial submission the contractor. Ruby attested to further County review the draft comments and final EIR. respоnses declarations,
Plaintiffs objected to admission of these but the court did not rule expressly on those objections.
Instead, mandate, granted court a writ CEQA— holding section 21082.1—did principally not permit consultant to draft applicant’s the EIR. The court concluded lengthy its determi- opinion elaborating this nation: “This ruling CEQA is based statute upon guidelines, law, corresponding case and general of conflict of interest.” principles moved Applicants to amend the and writ judgment and to reconsider the remedy. They asked either that the be made ruling prospective inappli- cable to their project, or that the County be required expedite preparation decision, of the new EIR. The court denied the motion but clarified its that an stating could treat an agency consultant’s draft EIR applicant’s only as an item of information for the agency’s own of the EIR. County and have applicants from appealed both and the order denying reconsideration.3
Discussion The decision below purported expound legal apply CEQA truism that under an EIR must be or under “prepared directly by, to, contract a public agency,” or its private applicant agent. 21081.2; accord, (§ agencies], 21151 Ac agencies].) §§ [state [local court, cording this EIR requirement means that an must be written and composed by the agency, so that an whose constituent are documents drafted invalid, for the agency by the applicant’s consultant is necessarily direction, evaluation, without regard to how much agency input, and inde pendent judgment went into it. Although the merits of this as a approach debatable, matter of policy bemay the court’s was interpretation erroneous matter, as a Guidelines, legal CEQA, because it conflicts with and all relevant case law. Those controlling sources teach that an consistently may with comply by adopting materials drafted consultant, reviews, so as the long agency independently evalu ates, and exercises judgment over that documentation and the issues it raises and addresses. 21082.1,
Section the section most relied on heavily by the trial court and *7 plaintiffs, itself refutes the notion that an EIR must be the of the product 3We grant parties’ deferred, requests judicial for ruling notice on which was except for plaintiffs’ requests to notice evidence and other materials from an unrelated against lawsuit Code, 350; (See the County. Evid. Angeles (1980) Cota v. Los § 105 Cal.App.3d 282, 323].) Cal.Rptr. 293-294 [164 or its consultant.4 the applicant to the exclusion of own agency’s authorship, the statute agency “preparation” it requires In the same breath as comments to consider outside only not agency authorizes specifically Guidelines, (Accord, EIR. include them and information but 15132, EIR].) 15084, EIR], (b) subd. (c), (d)(3) [final subds. [draft §§ Moreover, reflects that 21082.1 that enacted section bill history deleted Assembly was alone language proposed, after the “preparation” it, of the further it with the addition only and approved and then reinstated Amend, Bill No. (Assem. to Assem. authorizing outside language input. 6, 16, 29, 10, 9.6, and Sess.) Aug. Aug. June (1975-1976 Reg. Apr. § Thus, re- virtually and statute authorizes 1976.) the primary “preparation” submissions, merely using outside that the be “prepared” quires agency draftsmanship. Guidelines, interpretive authoritative constituting
The doсumentary validate also procedure, prescriptions practice commences Guidelines section 15084 reliance on an consultant.5 21082.1, with of section the agency preparation requirement by repeating (d), to set forth The subsection proceeds, to draft EIRs. section respect is, One of these agency five methods of such preparation. permissible retained by a consultant by applicant, a draft “Accepting prepared 15084, (d)(3); cf. subd. (Guidelines, or other applicant, any person.” § add, however, Guidelines, The on to (c).) goes regulation subd. § lead shall agency using person, “Before a draft another prepared The draft analysis. the draft to the own review subject agency’s independent judgment which is sent out review must reflect the public for lead for agency. agency responsible adequacy lead is short, (e).) In this (Guidelines, 15084 subd. of the draft EIR.” objectivity § public agency responsible Regents University construed as contract preparation simply distinguishes tion one form of only tion. The information or other clearly unauthorized however, P.2d lines cited herein as §§ 4Section 21082.1 At oral 5The Guidelines prepared pursuant 278] [hereafter aids to public agency, to, argument, courts should afford 15020.) Although yet permissible preparation. a prohibiting, interpreting public agency. provides plaintiffs purport Laurel being of California or erroneous under CEQA.” to the any person may CEQA,” thus Heights].) in full: requirement stressed comments [1] preparing great weight to decide erroneous. require itself from the alternative of This section is included, (1988) That word “Any from that the section uses the word None of the Supreme an environmental may compliance “whether the Guidelines are 47 Cal.3d submitting in whole or in [CEQA] to the Guidelines be submitted in does not Court has declared not intended to parties has 376, 391, (Laurel shall be information enlighten impact all part, impact any Heights Improvement subcontracting the function. prepared challenged any of the Guide fn. 2 except report format, report any report or declaration.” prohibit, or other comments the issue: “directly” in [253 regulatory mandates or agencies. when a directly by, or under or shall be considered Cal.Rptr. “[a]t negative negative “direct” shall not be provision (Guidelines, referring minimum, Assn. declara declara is *8 1454 EIR by
Guideline defines and of a draft affirmatively endorses “preparation” in the and contend was followed this precisely County applicants method case.
The in for foregoing method Guidelines allows preparation prescribed to enlist the initial and skills of an agency drafting analytical applicant’s consultant, that the subject requirement agency apply independent it. judgment utilizing review and to the work before and product adopting (see in 1 Environ- This to be common California Cal. methodology appears [3], 22-23); (1991 rev.) mental Law and Land several Use Practice 22.03 p. § amici in case it municipal using routinely. substantial this have attested to More have consistent series of decisions endorsed important, appellate in local resort to consultants of both agencies’ applicants’ preparation EIRs, draft and final subject independent agency of qualification involvement and unlawful judgment, against charges delegation. as Desert, (1974) Supervisors Concerned Palm Inc. v. Board Citizens of 338], decided under 21151 38 272 section before Cal.App.3d Cal.Rptr. [113 21082.1, enactment of section consultant a draft applicant’s prepared EIR; committee, two after review a and which evoked county department EIR with disagreements, together the draft was into final incorporated the local bodies’ the statute and the of Guidelines reports. Citing precursors 15084, the and section court held that evaluation modified independent of the draft constituted with the adoption “compliance statutory (38 that the EIR requirement agency.” Cal.App.3d be prepared 287-288.) at pp.
This was reiterated Foun- interpretation preparation requirement dation San Heritage City Franсisco’s Architectural v. San (1980) 401], Francisco also Cal.App.3d Cal.Rptr. [165 a claim rejected that of the had been preparation unlawfully delegated applicant’s consultant. court articulated the test as follows: “The is not undermined the direct and his fatally participation developer in the experts underlying environmental other studies. As the public must, CEQA work with the necessity, closely permit applicant, data, does not prohibit from information and applicant providing reports required for the of the EIR. preparation merely requires the agency independently its perform reviewing, analytical functions and to participate actively significantly (Id. 908.) drafting process.” p. Finally, City Poway City Diego (1984) San 155 Cal.App.3d 366], the court stated the rule Cal.Rptr. agency]
[202 to be that [the “[w]hile mаy to submit an require applicant] not be may [the document
1455 evaluation or without independent as its own adopted agency] [the (Id. at judgment.” p. reflect agency’s] independent and must analysis [the test, EIR the had 1042.) agency an which Under this the court approved one changing and had after adopted received from an consultant applicant’s eight word and of introduction. adding pages that the “preparation” require- cases confirm foregoing consistently 21082.1, CEQA (§§ 21151) the Guidelines turn not on some
ments of and words, rather whether upon artificial litmus test of who wrote but exercised over the environmental agency sufficiently independent that the EIR. Like section 21082.1 and analysis exposition and constitute Guidelines, an EIR a solitary, the cases that of is not recognize preparation onе, in which the ruminative an appli- but process inquisitive, cooperative involved, and will to the heavily cant and its can be experts naturally perhaps of the text. The trial court’s erection of a barrier to initially drafting point such involvement to be to the statute as heretofore appears directly opposed construed.6
Plaintiffs and amicus curiae Sierra Club nonetheless contend comments, contractor convert drafting of the to which responses principally EIR, CEQA’s if draft the final and promise into cannot be tolerated of are to be followed. this connection prescription agency preparation 15089, (a) and plaintiffs rely Guidelines sections subdivision upon (a), subdivision which set the lead to to duty agency respond forth EIR, and Kern People County commеnts the final as well as v. prepare (1974) Kern People County 39 830 and Cal.App.3d Cal.Rptr. [115 67] (1976) II), (Kern 62 Cal.App.3d disapproved Cal.Rptr. [133 389] an first failure and then any to include to comments at all responses because, remand, on re agency substantively provided inadequate wholesale from a resolution written sponses, adopted applicant’s lawyer.
We are not that an agency concerns unsympathetic policy required wholeheartedly, thoughtfully, actively prepare responses 352], (1988) 6Sundstrom v. Cal.App.3d Cal.Rptr. Mendocino 296 [248 heavily urged by plaintiffs ruling, court does not. In that supporting trial as the latter’s case agency adopted negative significant not an environmental EIR but declaration (§ (c)). effects appended project approval requirements subd. It then to thе for further assessments, including approved environmental to be applicant studies conducted by agency. disapproved agency’s prescribed inferior The court reversal CEQA’s sequence delega project approval, evaluation and as well as the combined connection, study tion of approval applicant agency. and a lower latter In the court quoted requirement, section 21082.1’s section and Guidelines (e)’s requirement independent adopting subdivision a draft EIR judgment when from an applicant’s (202 307.) submission. restates Cal.App.3d p. merely Sundstrom thus statutory regulatory authority began. some of the analysis with which our legal engender do not simply EIR. But those concerns comments on its draft written responses. drafting consultant’s interdiction of an general the Guidelines’ a rule: do nоt dictate such Plaintiffs’ authorities case, bar, been II which has elsewhere and the Kern no *10 terms prescribe Poway City factual (e.g., an situation exceptional viewed as presenting of 1042), itself used at p. 155 City Diego, supra, Cal.App.3d San of its analysis. mainstay rule above as discussed independent judgment short, II, in with 775.) In accordance (Kern supra, p. 62 Cal.App.3d review, analysis judicial independent practice application, consistent test, test, applies draftsmanship physical not judgment proposed whole, to comments.7 including responses as a what the court in measure from large The derived ruling trial court’s interest,” to applicants as applicable of conflict of principles termed “general role. an unwarranted the court assumed ruling, and their so consultants. CEQA. To thе extent policing in with The issue this case is compliance legislative as a accurately perceived interest be might conflicts of specific otherwise. CEQA, But not it could be pursued. provision purpose rectifica identification and rules for clearly provides where the law Except interest, not a legislative that is a termed conflicts of might tion of what Assn., City Council Inc. v. (Cf. Woodland Hills Residents function. judicial 255, 1029]; 938, Topanga P.2d (1980) 609 Cal.Rptr. 26 Cal.3d 944-946 [164 214 (1989) Angeles Los Community v. Assn. a Scenic for 1348, 214].) Cal.Rptr. 1364-1366 Cal.App.3d [263 identifying erred at the threshold Because the trial court that County’s preparation under which to evaluate the standard standard, discussed above. under the proper issue must be reconsidered now, here and we make that evaluation invite us to Although parties reasons. following believe that would bе procedurally inappropriate, review of scope judicial defines separately Civil Procedure mandamus under Code of subject actions to administrative traditional mandamus (§ 21168) and those reviewable section 1094.5 21168.5). (§ The substantive under of Civil Procedure section 1085 Code i.e., section, whether under either essentially standard of review “is same Heights, (Laurel evidence determination.” supports agency’s substantial However, evidence 5.) range fn. of admissible supra, 47 Cal.3d at p. Whereas review differs between the two subject types proceedings. authorities, consultant-supplied use of agency’s 7Citing plaintiffs urge federal also regulation contents. But the federal “independent include of their materials must verification” (40 Guidelines section 15084 rely 1506(a)) closely C.F.R. resembles upon plaintiffs § review, We see no (e)’s rule. independent analysis, subd. restatement of the decreeing requirement. basis for a different
1457 to the adminis- generally administrative mandamus the evidence is confined Proc., 1094.5, (see (e)), subject Civ. subd. cases trative record Code § relevant evidence mandamus under section 21168.5 additional traditional Oil, (No City Angeles Los Inc. v. may be introduced for consideration. 68, 79, 66]; Club v. P.2d Sierra (1974) 13 Cal.3d fn. 6 529 Cal.Rptr. [118 393]; Gilroy City (1990) Cal.Rptr. Council Cal.App.3d [271 Practice, 23.04[3], supra, pp. Cal. Environmental Law and Land Use § 23-15—23-16.) direct, difference has for the practical consequences present
This under of a County’s review—approval specific plan case. actions adju attendant amendment—were rezoning general legislative plan *11 dicative, and are to traditional not administrative they subject therefore 561, 801, (Yost (1984) mandamus. v. Thomas 36 Cal.3d 570 Cal.Rptr. [205 Council, 1152]; 222 at Gilroy City supra, 685 P.2d Sierra Club v. Cal.App.3d 39.) Chih and Accordingly, Ruby, the declarations Messrs. p. County’s EIR documenta describing County review and revision of the contractor’s tion, contended, inadmissible, were virtue of Code of as plaintiffs 1094.5, (e). Civil Procedure were declarations section subdivision Nor those to had to subject objected plaintiffs’ exclusion because appellants previously (See evidence. Code Civ. discovery requests production of comparable Proc., 2031, 1.) subd. §
However, resolution of the demands that be allowed proper plaintiffs case declarations, to these filed respond just hearing which were before connection, below. this that rele- County’s discovery objection own fallacious; vant evidence limited was to the administrative record also was EIR having introduced its declarations was prepared, about how County may not claim that further evidence of that is objective process remand, irrelevant. On to the trial court’s discretion and to subject appropri- rebuttal, ate further plaintiffs should be allowed to elicit and introduce such evidence as will inform decision whether the with County complied Moreover, EIR preparation remand is also requirement. required permit resolution, if in necessary, remaining claims plaintiffs’ petition.
We observe conclusion that the traditional interpretation CEQA’s EIR adhere to while preparation requirement, disapprov we ing new test the trial court the fundamental itself follows adopted, CEQA “be such manner as to afford the fullest imperativе interpreted possible protection scope environment within reasonable (Friends (1972) statutory language.” Supervisors Mammoth v. Board 8 761, 1049].) Cal.3d 259 Cal.Rptr. Implicit require 502 P.2d [104 review, ment that the exercise independent analysis, judgment heavy is a consultant submitted when materials using Moreover, this thoroughness. objectivity, demand for independence, accountability.” “a document of that an pursues prescription standard 392.) have That supra, parties 47 Cal.3d Heights, p. (La urel detriments of this benefits and here the comparative debated vigorously that its revision date confirms only as interpreted phase Valleyv. Board (See Goleta for the courts. is not improvement Citizens 1161].)8 P.2d (1990) Cal.Rptr. 52 Cal.3d Supervisors [276
Disposition the post- denying The from order
The is reversed. judgment appeals their own shall bear as moot. parties motion are dismissed costs.
Nott, J., concurred.
GATES, P. J. dissent. Acting respectfully —I *12 Whethеr interests. conflicting never may adequately represent
One person form, more oft few verities have been in or colloquial classic expressed has Legislature proclaimed our Consequently, over the centuries.1 reproven clear, in that: unambiguous language to pursuant declaration negative evironmental
“Any impact report contract directly by, or under prepared this division shall be requirement Code, to, 21082.1.) (Pub. Resources public agency.” § contended, be, was honored it that this commandment It is not nor could draft the initial not agent only prepared here. this instance applicant’s all (EIR), required he to make permitted was impact report he final in order that the to concerns responses any expressed any person’s desires. When would his composed, satisfy principal’s also achieve success for his to solely upon ability future income is dependent services, bemay no matter how or honorable capable those who retain his intentions, statutory that the pro- interests are so conflicting patent his his him a role would casting such forbidding agencies from scription public seem hardly necessary. case. acknowledge briefs in this exceptionally 8We the lucidness of the other; one, and love the or else two hate 1“No man can serve masters: either he will one, 6:24.) you food eat (Matthew “Tell me whose despise to
he will hold other.” song you (Folk you sing.” aphorism.) and I will tell whose There suggested. from this has been practice No derivative benefit and, course, and all from any input are savings no resultant cost author- already in aid is agent position expressly of his client’s 21082.1. ized of Public Resource Code section by the second paragraph Los allowing I fear reversing thereby this gravely to and certain state Angeles County2 public agencies throughout other fashion, effect that we will an produce continue to this forbidden operate Each our state local beyond year extends far this particular project. manifesting are filled with initiatives and referendums increasingly ballots officials. governmental with the conduct of its public’s dissatisfaction and under- One how much more their disillusionment may only speculate will increased that those authorities cynicism upon learning standable in which we live and raise our families very who control environment to necessary need not even retain neutral the information experts supply enlighten citizenry preparing the affected or to assist the officials materials well-considered decision. prerequisite any
However, I have no wish to this certainly delay particular applicant’s if, indicate, are erroneous. as would views project my minority position my Therefore, I will legal analysis shall an extended but attempt compose the trial of decision merely by way of court’s statement adopt appendix, I which find both correct persuasive. denied for review the Court was Octo-
Respondents’ petition Supreme ber 1991. *13 2Ironically, county’s guidelines own reporting procedures environmental document 602, D,
mirror the regard by explicitly declaring state’s dictate in this in section subdivision prepared by county agency or under contract to the lead that “A Draft . .” EIR shall be . . (Itаlics added.) Although require the provision County agency is also made for the lead to EIR, work, applicant to no provide necessary data to assist it in its form of a draft even in the is, proviso evaluating such is made for the final EIR. That subsection I states: “After EIR, lead prepared Final EIR shall be comments from those who reviewed the Draft a County agency. responses disposition The shall describe the significant of environmental issues raised (Italics added.) and shall be based on factual information.”
1460
Appendix “Writ Mandate Granted. [CEQA]; court’s with article (‘Public agency’ compliance not in to PRC “Pursuant 21168.9 its decision duties), directing respondent to set aside granted is powers and a writ of mandate 87-044, 1989, 26, Plan No. Compound Change Zone Case No. approving of December 2, Impact Report in certification of the Environmental Specific Plan No. and its 002-89 therewith; activity which could suspend all directing respondent to and further connection respondent time as environment until such any change physical to the result in or alteration stated CEQA specifications with the in accordance complied requirements with the has 21168.9(b). compliance below in with PRC See, e.g. PRC CEQA the environment. protect is to purpose “1. It is clear that the see, CEQA; e.g., as the ‘heart’ of has often been described 21000 21001. 795, Regents, v. 47 C3 (1973), Heights ImprovementAssn. Laurel Inyo Yorty, 32 CA3 376, public purpose whose is to alert (1988), “alarm bell” or as an ‘environmental ecological points they have reached changes before responsible officials to environmental its see, return’; of EIR to (purpose 21002.1 See also PRC e.g., Heights of no Laurel 392. appellate All the project). alternatives to project, effects of identify significant environmental to the protection CEQA possible to ‘afford the fullest teaches that is intended law which Mammoth, 8 language’, environment Friends statutory of the scope within the reasonable here, starting analysis for (1972), yet provides point reviewed but C3 is not statute. requirements of the 21082.1, CEQA, chapter of reads codified in the ‘General’ paragraph of PRC “2. The first as follows: “ prepared pursuant negative declaration ‘Any impact report or to, public a by, or under contract prepared directly requirement of this division shall added). agency.’ (emphasis PRC, CEQA.) goes on to PRC 21082.1 which is ‘division’ is Division 13 of “The to ‘the information or comments ‘any person’ may submit provide paragraph in its second nеgative declara- report or impact agency responsible preparing for an environmental public Presumably response any may be ‘in format.’ tion’ and that such information or comments prepare or his consultant developer allow a ‘any provision, to this format’ the Guidelines 21082.1, paragraph of PRC nothing in the second as discussed below. There is draft however, a final EIR for alternative method permissible which creates a third itself, has contracted 1) 2) by entity or which agency the in addition (‘shall’). mandatory provisions These are public agency. this service perform Boards and Agencies, the ‘State of PRC codified in paragraph “3. The first CEQA, as follows: chapter pertinent part reads in Commissions’ “ boards, prepared cause to be prepare, shall agenсies, and commissions ‘All state they approve to . . . report any project propose on impact ... an environmental contract added). (emphasis environment.’ may significant have a effect on the here, here (‘shall’). application since mandatory They have no direct provisions “These are however, (see below). noteworthy, that the It is agency the lead is a local regard. language throughout is consistent in this CEQA, chapter of Agencies’ the ‘Local paragraph “4. of PRC codified in The first pertinent part reads in as follows: “ *14 ... an environ- prepared by cause to be contract agencies prepare, shall or ‘All local a approve may have they propose to . . . which impact report any project mental on аdded). significant (emphasis effect on the environment.’ respondent as a local (‘shall’). apply to mandatory provisions are These provisions “These agency. preparing of CEQA charged responsibility with the public agency rather clear that a “5. is by the ways: may prepared the EIR be only so in one of two may permissible an EIR do itself, public agency. to the While under contract public agency may prepared or the EIR be
1461 comments, delegating for the provision there is no ‘any person’ may submit information or very applicant seeking approval agent private to the responsibility preparation the of for EIR below, quite it would anomalous surprising. discussed further project. of a This is not As environment, a very of delegate proponent the CEQA, protect tо to designed a statute the for of the might rejection result in ‘alarm bell’ that project duty generate very to the proposed proposal. they statutory provisions, but to the these The are of course subordinate “6. Guidelines 15084(d)(3) does noteworthy that Guideline It while necessarily are not inconsistent. is consultant applicant applicant’s or the to be purport prepared to allow a EIR draft format’), clearly states: ‘any Guideline 15089 (because, presumably, this is information no project.’ There is a before agency prepare approving final EIR ‘The lead shall to be EIR’) allowing the EIR of Pinal provision (‘Preparation in Guideline 15089 final states that the ‘lead agent. Guideline 15088 prepared applicant applicant’s or produce to the draft EIR to agency rеspond and and revise or add shall’ evaluate to comments Guidelines, acknowledge sides to be subordinate a final EIR. Even the statute, which both critique own environmental of his provide applicant prepare do not for the to final and alerting public responsible of ‘the its project, required purpose this ‘alarm bell’ for the ecological points changes they have of no return.’ officials to environmental before reached (or, CEQA private ask the Heights quite applicant would be remarkable for to Laurel It 392. still, consultant) to find environmental reasons private applicant’s paid more remarkable why project rejected. own should be (19840, Poway Diego, CA3 1037 discussed Except City City “7. San 155 for below, a CEQA prospect that contemplated no one written оn seems to have who has CEQA. might compliance developer’s project of his constitute with own evaluation own Heights, example, Eagleson Justice wrote: Laurel for “ (§§ being CEQA, public prepared ‘Under is that a draft EIR is notified 21092 (Guidelines, 21092.1), 15087 light the draft EIR is evaluated in comments received. §§ 15088.) on the agency incorporating lead then a comments prepares draft final process. in the review agency’s responses significant points EIR and the to raised added). (Guidelines, (b)-(d).)’ (emphasis subds. 15090 §§ express implied written are also from the or “Most other materials on written See, statutory e.g., the final perspective duty public agency prepare that it is the of the to EIR. Series, Proceedings Under the California Environ- Property CEB Advanced Real ‘Mandate (October/November 1987) (‘CEQA Quality requires preparation mental Act’ of an environ- impact (EIR) by agency. .’); . Law report mental state or local ‘California Environmental Institutes, (4th Inc.) (‘The Ed.) (Government responsibility has the Handbook’ lead applicant’); ‘Primer on preparing typically but costs are funded Justice, 1988) (CEQA (California Feb. Department Environmental Law in California’ entities, such as are private agencies, private private developers not but entities applies Goldman, ‘Legal required by agencies preparation); often for the cost of EIR public pay Reports,’ Journal of Adequacy Impact of Environmental Discussions in Environmental (1982) (‘CEQA prepare consider an requires every public agency Environmental Law significantly the environ- disapproval project may EIR before its of a that affect approvаl ment’). City City contrary authority. “8. is no doubt that in Poway does constitute There is Poway prepared by 155 CA3 1040. There developer’s EIR was consultant. invalidity project’s of the also no doubt this was not one reasons asserted for the of the approval on three Poway 1041. attacked the approval. City CA3 Plaintiff in by the grounds. grounds impermissibly prepared None been of those was that the EIR had Obviously, appellate ruling is not developer’s representative agency. rather than the authority proposition for a which it did not consider. developer’s paid exists if the The stark and irreconcilable “9. conflict of interest Moreover, is in the business of prepares consultant the EIR if a consultant manifest. conducting employment will be continuing environmental studies source knows that its *15 developers оbtaining desirous of approval projects, inquire of their is there need to where the unbiased, consultant’s interests Clearly achieving objective lie? those interests will not lie in analysis, revealing environmental dangers environmental in the proposed development, achieving but instead in approval principal’s project. require of the It a of would level integrity conscious discipline rarely production subconscious mental found to result in of objective an EIR in such a report prepared circumstance. A in such a circumstance is more hand, If, comparable to impartial opinion. an advocate’s brief than an observer’s on the other to, to, a consequently allegiance consultant is under contract of hope owes and has a from, employment public future a agency, expectable it is that the consultant will be more provide public agency motivated to comprehensive, analysis. with unbiased environmental that, CEQA’s apparent purpose requirement This is the public agency if the does not itself, prepare the preparation be done under contract to the public agency. The statute is clear on this point; contrary authority. there is no needed, authority beyond plain “10. If words of the statute nearly point is the most on Mendocino, is County (1988). Sundstrom v. 202 CA3 The court in Sundstrom ruled impermissible delegation that it was an responsibility impact of the to assess environmental County for the of Mendocino to direct an applicant to conduct studies himself to determine unacceptable CEQA, whether impacts environmental were involved. ‘Under the EIR or negative declaration be prepared “directly by, agency. must or under contract the lead to” Code, (Pub. True, 21082.1.)’ Resources ruled Sundstrom at 307. of Mendocino’s § attempted delegation ordered, early stage in Sundstrom occurred at an evaluation was before However, developer’s did not involve a respondent of his own EIR. here indicates no rationale protection during attempts for more strenuous environmental necessary determine whether an EIR is stages and more relaxed standards in later after prepared significant determination that an EIR must be impacts because are likely. anything, (See, If might the rule be the e.g. reverse. the Guidelines allowance of a EIR, developer-prepared EIR). but not draft final any regarding “11. If there is doubt a public agency may lawfully whether direct a developer to prepare his own it is dispelled Friends Mammoth v. Board Mammoth, Supervisors, (1972). 8 C3 In Friends Supreme Court ruled that CEQA is to be interpreted to achieve the protection maximum environmental that can be achieved within the scope statutory language. merely reasonable of the Here it is not well scope within the of the statutory language public agency, that the and not applicant for the public agency’s approval, conducting bears the responsibility study; the environmental it is plainly stated mandatory language. Clearly, study by public agency charged conducted a protection with of the interest position likely and not in a of conflict of interest is more CEQA to achieve the purposes of a study by paid applicant. than conducted consultant of the belabored, point need not be clearly but needs to be in mind since it demonstrates the rationale for wording of the statute. Friends Mammoth and all the similar cases following Friends Mammoth are respondent may comply further reason to find that with CEQA by directing applicant study prepare conduct his own environmental and to his own EIR. ruling “12. This upon is based guidelines, corresponding statute and case law, general principles of conflict ruling upon any of interest. This is not based regarding conclusion the competence, integrity particular or motivations of the consultants party hired real particular ruling hiring interest in this case. simply The court is that the of a applicant consultant to conduct study prepare an environmental and to an EIR was permissible not a means of complying CEQA. with “13. Counsel to confer on a return date. “14. prepare judgment Petitioner to and order.”