*1 No. 30268. In Bank. Dec. [L.A. 1974.] OIL, INC., al.,
NO et Plaintiffs and Appellants, al., CITY OF LOS ANGELES et Defendants and Respondents. *5 Counsel Nichols, R. John Hall, Jr., D. Rushforth, Mary Carlyle N. W.
Brent and Plaintiffs for Frederic P. Sutherland A. Hunt and Thomas Phillips, Appellants. O’Brien, Attor- General, Assistant Robert H. J. Attorney
Evelle Younger, Chatten, General, Attorneys C. and Jan E. Deputy Nicholas Yost ney and General, of Plaintiffs as Amici Curiae on behalf Appellants. Morton, Dial, &
Lawler, Hall, K. Hanna Felix Henigson, & Robert William Mitchell, Renwick, Morton, Silber- Lugosi, C. S. Bela G. Harold Edward Arthur and & Groman Defendants Respondents. berg Knupp Hindin, Denis Amici Levine & A. Click as Curiae Glick McKay, of Defendants and behalf Respondents.
Opinion TOBRINER, J. Los from a Angeles Plaintiffs appealjudgment *6 that an Court the Los need ruling City Superior Angeles prepare to (EIR) before ordinances environmental report enacting permit sink two oil wells in the defendant Occidental Petroleum to test Corp. case under Pacific Palisades the This the first city. arising region appeal, the California Environmental Re CEQA) (Pub. Act Quality (hereafter Code, et reach Friends Mam sources to this court since seq.) § 761, Supervisors (1972) Cal.Rptr. moth Board Cal.3d 247 [104 1049], how an should decide 502 P.2d us to into agency compels inquire whether a EIR.1 pending project requires 1970, CEQA relationship 1For a between in Friends summary of the enacted
Mammoth, Seneker, Legislative act, Response to The and the 1972 see amended Mammoth—Developers Will-O’-The-Wisp Friends Chase the 48 State 127. Bar J. CEQA, the Legislature sought by environment protect establishment of administrative drafted to procedures “Ensure long-term protection environment shall be the criterion in guiding Code, (Pub. 21001, decisions.” Resources public (d).) subd. achieve To § CEQA these objectives, and the issued guidelines by State Resources CEQA2 Agency establish a three-tiered implement a structure. If project falls within a category by (see administrative Re- exempt Pub. regulation Code, 21084, sources 21085), or “it can be §§ seen with certainty environ- will not a effect on the activity have question significant Code, 14, no evaluation (Cal. 15060), ment” tit. further Admin. agency § is If there have a may significant is that the required. possibility project Code, effect, (Cal. undertakes an initial threshold Admin. study agency “will not 14, 15080); tit. that study if demonstrates project § effect,” declare in a brief Negative so have a agency may significant is Code, 15083.) one If the (Cal. Declaration. Admin. tit. § environment,” is re- an EIR “which effect on the may 21151; Code, §§21100, see Cal. Admin. (Pub. Resources quired. which tit. one The assume the drilling project parties an initial threshold effect and thus possibly requires determined is whether study. question properly that no EIR was necessary.
Judicial review of the decision Public Re city’s governed 21168.5, sources Code that “In or section which action any pro provides attack, other than an action or under Section ceeding, proceeding review, aside, set or void annul a determination or decision of public division, on the this agency with grounds inquiry noncompliance shall extend to whether there was a abuse of discretion. prejudicial Abuse of discretion is established if the has not proceeded manner law if the determination or decision required by is not sup Since, substantial shall evidence.”3 as we ported explain, judgment guidelines 2The Agency February took established the State Resources effect on 10, 1973, shortly completion after of the trial case. apply We do not guidelines retroactively these to decisions of the court or council before rendered m,ake guidelines however, guidelines, sug went into effect. We use of as a statute, gested interpretation of the of the procedures as an illustration resources agency necessary finds enforcement of the statute. *7 agency CEQA governed 3Judicial by review of action under 21168 and is sections provides agency 21168.5. Section 21168 a review of an decision “made as result proceeding by hearing given, of in law a to required which is be is re evidence quired to be a public taken and discretion in the of facts is determination vested in agency” should procedure follow the administrative mandamus Code of of Civil 21168.5, text, quoted Procedure section Section in the provides that other 1094.5. agency by decisions should be reviewed a traditional mandamus action. Since the be- be reversed must decision city’s the sustaining court the of superior law, we manner in the to proceed the failure city’s cause of substantial that decision supported whether the do not reach question evidence. of the to with failed comply requirements'
The council city specifically CEQA First, an to agency because an EIR serves guide two in respects. CEQA project, whether to or disapprove proposed in deciding approve that the (and require) guidelines expressly requires impliedly an EIR before whether a requires render a written determination project however, council, city to that approved it final project. gives approval a written determination in October of without drilling project The belated council of that project. concerning its to render a determination in of January attempt resolution despite October, not suffice with does to comply of retroactively previous and resolved that environmental issues considered the requirement before a approved. project to environmental key an is the
Second, of EIR since the preparation of the CEQA, objectives high under accomplishment protection fairly it can be argued EIR whenever of an act requires may evidence the basis substantial however, case, in the court present The superior environmental impact. that limited test a far restrictive ordered the council to follow more city or “momentous” have an “important” use of an to EIR projects instruction, court’s duration. The superior effect of semi-permanent cases, such addition, an EIR overlooked importance preparing action, environ- which the determination of project’s as the controverted issues fact and turns the resolution mental effect upon case, concern. the context of this of intense forms the public subject conclusion that use of the bases our we shall out city’s point trial court constitutes abuse test erroneous stated prejudicial discretion. Angeles evidentiary hearing City Council to required by Los was not law hold districts, approving establishing
before ordinances the oil section 21168.5 governs the case bar. at 21168 and effective 1972—subsequent Sections 21168.5 became on December action, hearings to the filing October council but and to the of this before the superior trial in court and that court’s remand matter council. Fortunately Legislature, concerning anticipating might that issues arise the retro- activity sections, declaratory of these enacted that “Sections 21168 are and 21168.5 existing judicial respect law with review of determinations decisions agencies (Pub. 21168.7.) public pursuant this division.” Resources m.ade demonstrates Legislature This enactment intends sections 21168 and 21168.5 apply proceedings CEQA, all including under pending when sec- those those tions became effective. *8 Chronology events.
1. In 1966 Occidental Petroleum drilled the Core Hole in Santa Marquez Monica Canyon 9,200 discovered oil sands at a producing depth feet. field, determine the extent Seeking of the oil Occidental acquired drillsite” “highway in Pacifiic Palisades in This two-acre 1969. site lies across a state from highway Will State Beach and Rogers near the foot of a bluff which has numerous landslides. experienced July the Office of Zoning Administration of the of Los City Angeles granted Occidental a conditional use it to permit drill allowing a test well at the drillsite. highway The board of zoning overturned appeals decision, finding landslide, drilling might disastrous trigger that a blowout—an uncontrolled effusion of oil under pressure—would have severe environmental and that an consequences, industrial use of the site would be aesthetically undesirable. to circumvent
Seeking for a conditional use requirement permit, Occidental petitioned 1972 to establish city three oil dis- drilling tricts in the Pacific Palisades. Since the oil districts drilling proposed by Occidental would have commercial oil permitted production, hearing examiner for the commission, city concerned about planning the environ- mental of such recommended impact production, disapproval pro- Nevertheless posal. commission resolved planning approve on condition that two test proposal holes be only drilled. 10, 1972,
On October the council considered three ordinances which established oil area, districts in the Pacific drilling Palisades subject condition that two test wells could be drilled. At the close of the Councilman hearing Wachs whether inquired had ex- attorney amined the ordinances in the in Friends proposed of our light opinion Mammoth filed three weeks earlier. The city attorney since replied had not yet established to ascertain the procedures council, measures before the coming he had made no such ex- amination.
At the next on October meeting, Councilman moved to Wachs post- consideration of the pone ordinances of an EIR. pending No other motion, councilman discussed the which failed vote. eight-to-six The council then the ordinances the same passed vote. eight-to-six Mayor Yorty ordinances law signed into on October 20.
Plaintiffs, four nonprofit corporations
representing persons opposed
oil
Palisades,
in Pacific
filed
the instant action on October 27.
Their
invalid,
a declaration that
complaint sought
ordinances were
*9
EIR,
an
of
and
an
requested
to
for mandate
compel preparation
prayed
the office of zoning
the issuance of a drilling permit
against
injunction
that no EIR was neces-
in
contended
The city,
administration.4
response,
the
council-
eight
declarations from
this contention with
sary, supporting
declared,
ordinances;
the statutory
each
language,
who voted
the
men
for
have a
not such as
was
drilling
might
his
opinion
Occidental,
hand,
that
the other
maintained
on
on the environment.
effect
commission
a sufficient EIR.
constituted
the
the
reports
planning
was at issue
claimed that the
whose impact
Plaintiffs initially
“project”
Palisades;
in Pacific
they argued
oil
commercial
production
encompassed
effect on
would have a significant
it was evident such production
that
however,
court,
the issue to the im
trial
limited
environment. The
the
testimony
test
Plaintiffs presented expert
of the
of the
wells.5
drilling
pact
drilling
drill,
permits
to
from
secure
beginning to
was
4Before
Occidental
the
found that issuance of
zoning
expressly
office
office
administration. The
the
drilling permits
4,
EIR,
an
and issued
on January
would not require
requested permits
January
and Occi
zoning
upheld that
appeals
The board of
decision on
1973.
halting
stay
drilling
day.
order
operations
same
We issued
dental commenced
drilling
February
7.
limiting
scope of the “project”
the trial court erred
5Plaintiffs contend that
wells;
scope
inquiry
drilling
they
test
maintain that the
should
at issue to
of two
exploitation
production
effects of
the environmental
include
commercial
drilling
They point out
of the test
of the Pacific Palisades.
that
oil resources
can follow.
money
production
would be
waste of
unless commercial
wells
Thus
useless
production
is relevant
impact
information on the environmental
commercial
wells;
that
approve
proved
council’s
to
the test
if
data
commercial
to the
decision
harmful,
might
disapprove
be
well decide to
the test
would
council
production
circumstances, plaintiffs
narrow
drilling. Under these
observe that a
definition
“project”
tion
inquiry
produc
into the
effects of commercial
bars
environm.ental
objectives
defeats the
of the
act.
however,
geologic
protest,
information obtained from
Defendants
impact
preparation
accurate EIR on the
of com-
test wells
mercial
v. Atomic
essential to
of an
Info.,
Pub.
Inc.
production.
pointed
the court
Scientists’ Inst.
As
out in
395],
Energy
App.D.C.
impact
Com’n
[156
On December announced oral an judge ruling. Declaring council’s actions of October and were he resolved equivocal, to remand the matter to the council for clarification of the council’s posi- tion on the “Is the Occidental to drill two question: application core holes such a have a effect on the en- project significant vironment?” matter, the court remanding stated test for use the council whether a determining “may effect on the project
environment”: “whether there is a reasonable possibility will have a momentous or effect aof important permanent long enduring nature.”
The council convened on At the January 1973. conclusion of the council, vote, hearing eight-to-seven resolution adopted stating that “the Los Council declare Angeles City that at the time specifically believed, it three ordinances it adopted subject and now specifically finds, that such ordinances and the restricted activities thereby permitted would have no effect on the environment.” court found that the council’s superior adoption this resolution was substantial evidence in the administrative supported It en- then 1973.6 January and as as October both record that no EIR lawfully determined the council declaring tered judgment for and request denying plaintiffs’ the drilling project, was required relief. injunctive mandate order from
Plaintiffs a stay unsuccessfully sought appealed issues public importance, Since appeal presented Court Appeal.7 the drilling project pend- if Occidental completed would mooted court, issued a stay transferred this we the cause ordered ing appeal, People rel. ex (See Court of the cause Appeal. and returned order *11 533, 537 Emeryville (1968) Cal.2d Town 69 Bay etc. v. Com. S.F. of here on 790, action is now 790].) petition P.2d The 446 Cal.Rptr. [72 decision. of the Court from hearing Appeal re- a determination erroneously render written The Council 2. failed ap- it project before the environmental specting of effect project. that proved CEQA that an As the court recognized, requires superior a may determine whether a have impact, project that and thus whether an EIR is it project.8 approves required, before mandamus, reviews 6In an action for administrative court administrative record, receiving additional evidence if that evidence was unavailable at the (Code hearing, of the Proc., improperly time administrative or excluded from the record. 1094.5.) action, hand, § Civ. a the other traditional mandamus record, may is not limited review of the court evidence. administrative but receive additional (Felt (1924) Waughop 498, 862]; City v. 504 v. 193 Cal. P. Lassen [225 (1957) 44, 520]; Alameda Cal.App.2d (Cont. 150 48 P.2d Civil [309 Cal. Writs of 1970) 17.9.) § Ed.Bar superior Hence the issue before the court in case evidence, including was whether substantial on the whole record pre evidence court, supported sented to that required. that determination no EIR was The su finding—that court’s perior supported council’s resolution was evi substantial dence “in the administrative responsive record”—is not to that issue. 15, 1973, January superior 7On denying court entered a minute order plaintiffs’ request order also injunctions, relief, for preliminary and final declaratory and The mandamus. execution, denied plaintiffs’ to prepare stay motion for of directed counsel for findings Occidental judgment. appealed any ensuing judgment. Although Plaintiffs from that minute order and not judgment merits, the order did a final plaintiffs’ constitute on the appeal was timely respect both with preliminary injunction to the denial of a and the denial (see 904.1; stay Proc., Brydon City execution Code § Civ. Hermosa Beach 615, 255]). entered, 93 620 Cal.App. judgment [270 P. Final has now been rendering moot the denial of preliminary relief. Supervisors, supra, Friends Mammoth v. 8See Board 8 Cal.3d The 262. statutory requires of an EIR report definition that project be considered before a (see approved Code, 21061), § Pub. necessarily implies Resources whether prepare decision report precede not approval project. m.ust CEQA guidelines expressly process state that “The EIR is intended to enable 80 the council’s October action of 17 the court remanded
Finding ambiguous, the matter to the council for clarification. The council a resolution passed believed, it as of October stating was drilling project not such as might court this res- significant impact; accepted olution determination of environmental issues constituting requisite before approval project. conclude, however,
We determination that a does project EIR, when that is not from environmental require project exempt under the act or take the study must form of a written guidelines,9 Nega tive Declaration. Such is the unanimous view of the federal courts con the National (42 Environmental Act of struing Policy (NEPA) U.S.C. 4321 et § and the both federal and state seq.),10 explicit requirement (See Council on guidelines. Environmental of En Quality, Preparation Guidelines, 1500.5, vironmental Statements: 38 Fed. Impact Reg. § (1973); 15083.) Cal. Admin. tit. Absent such a written de- public agencies it evaluate to determine whether environment, reducing effect on the to examine and institute methods adverse im- *12 things pacts, and to consider must project proposed. alternatives to the These be approval prior disapproval project." Code, 14, (Cal. done Admin. tit. of 15012.) (Italics added.) provides study 9Public Resources Code section 21085 that no environmental is required the Resource project category exempt by regulation; if a comes a administrative within categorical (Cal. Agency guidelines exemptions list seven such Admin. 14, 15101-15107). generally §§ tit. provides Guideline 15060 also that no study certainty activity needed if “it is can seen with that the environmental question will not have a effect on environment.” 10See, 640; Hanly (2d 1972) Hanly e.g., 1972) v. Mitchell Cir. 460 F.2d v. Kleindienst Fund, (2d 823; Cir. 471 F.2d Environmental Inc. v. Ruckelshaus cf. Defense 584, (1971) 439 App.D.C. F.2d 598 [142 74]. 11 Negative specifies Guideline 15083 that a Declaration must include a brief de effect, scription finding of a project, project will not have a finding. a of support and statement reasons to that The maintains that since sec 1973, February 15083 not take specifications tion applied a did effect until of its should not be requirement to the decision of the council in that October 1972. determination, finding significant impact express of no take the form of an written however, itself, implicit is in the act and could have been deduced in October of act, v. 1972 from our decision in Friends Mammoth from examination 247, Supervisors, supra, Board cited that 8 Cal.3d and from the federal cases decision. Negative go beyond specifi- Plaintiffs in turn assert that a Declaration should exposition cations of section 15083 and contain a full of all relevant environmental factors; 15083, they conclusory a contemplates contend section which one- document, County page CEQA. Language is invalid under the terms of in Hixon v. Angeles (1974) 370, notwithstanding, Los Cal.App.3d Cal.Rptr. 38 380 [113 433] (See justiciable plaintiffs’ presents contention a Desert Environment Conserva- issue. 31, (1973) 739, tion Assn. Public Cal.Rptr. v. Utilities Com. 8 Cal.3d 742-743 [106 resolution, however, 223].) 505 P.2d Its should await a case which arises after the challenged regulation. effective date of the
81 termination, there no court can determine whether silence way agency does not an EIR or failure a decision that represents project require to decide that issue. a matter to do a trial remand
We not court question power (See findings. administrative for clarification of ambiguous an agency 967].) P.2d Superior v. 46 Cal.2d 600 Keeler Court [297 doctrine, however, case. This not does This apply findings concerning a case in which an rendered ambiguous of total absence any effect of the but case environmental project, matter; reveals, all the council the record written determination on CEQA in the enacted the ordinances same simply ignored CEQA was it before enacted.12 manner to which was accustomed 8, 1973, resolution, had already the council At the of the January time can constitute on that date No resolution adopted project. approved determination of environmental prior approval impact at that meeting represents which act The resolution adopted requires. of a decision “post already hoc rationalization” simply example made, Overton Park to Preserve courts condemned Citizens 136, 155, Volpe (1971) L.Ed.2d 91 S.Ct. U.S. 814] [28 Fund, County Water Dist. Environmental Inc. v. Coastside Defense (1972) 27 197]. Cal.App.3d Cal.Rptr. [104 to render a written determination of In failing in a contrary before the council manner proceeded approving project, *13 21168.5.) (See This of law. Pub. Resources requirements have on the that council failure cannot excused theory might ap- an its the drilling agency ignore proved project anyway; permit “[t]o its duties . . . with we have that ulti- because serious doubts impunity mate decision will be subvert the very affected would pur- compliance (E.D.N.Y. 1972) of New (City the Act.” York United States pose 150, [NEPA]; Co. v. Federal 337 160 Public Service F.Supp. Arizona 1275, 272]; Power Com’n F.2d see App.D.C. [157 Redevelopment Agency (D.C. Jones v. District Columbia Land Cir. F.2d 1974)499 502,512-513.) CEQA require rendition of 12Neither nor Code of Civil Procedure section 1094.5
findings proceedings; no quasi-legislative opinion imposes such re fact our whether a quirement. only We hold that when the makes determination EIR, do, CEQA requires put requires an it to it should that determination project as writing. 3. The deciding drilling council an erroneous test in that the followed project require impact did not an report. environmental 8, As 1973, we have the council’s resolution of January explained, cannot be retroactive effect to validate the council’s given actions of the October. We now out that the council’s previous resolution point is defective on a second the council namely, in ground, employed correct standards in that the did not determining drilling project require an EIR. 1972, 21151,
Public Resources Code as section of October provided that local not conserva- government officially agencies having adopted (such tion element of a “shall as of Los general City Angeles) plan project make an intend to carry environmental on any they impact report may (Italics out which on the environment.” effect added.) section 21151 was amended effective December Although 1972,13 words, the italicized are the focus of the controversy, identical in both the and amended sections.14 original court,
The trial on this cause to the council for clarifica- remanding tion, this section to interpreted of an EIR compel when preparation only “there is a reasonable will have a possibility momentous project or effect of a or important permanent nature.” As we shall long enduring this test sets explain, far too a barrier to the an EIR.15 high preparation agencies provides prepare, 13Section 21151 now “All local shall or cause to be contract, prepared certify impact report of an completion any project they carry intend to out effect approve agencies on the environment. . . .” The authorized for contract amendment themselves, of an preparing requirement EIR instead it added the for (thus agency approves project codifying holding an EIR when the a private Supervisors, supra, 247) v. Board Friends Mammoth 8 Cal.3d and eliminated exemption officially adopted cities with an conservation element in their general plan. 14The “project” defendants concede that the test wells constitute a defined in Public Resources Code section enactment of the ordinances establishing drilling carrying oil districts constitutes the out of such a within the terms of section scope 21151. Plaintiffs maintain that the of the “project” whose encompasses is at issue of the test wells but also the (See possibility subsequent supra.) production. commercial fn. *14 15We do not think at respon this court this time should draft a substitute test. The sibility CEQA delegated by for formulation a expressly of such test is to the State (See 21083.) Agency. Code, Resources Pub. agency § Resources That has defined “significant Code, (Cal. effect” as “a substantial impact adverse on the environment” Adm.in. 14, 15040)—a § tit. markedly definition which differs from that advanced the trial court—and listed those consequences ordinarily which indi (Cal. a project may 14, 15081.) cate that § effect. Admin. tit. General, curiae, The Attorney guidelines’ as stated opposition amicus his to the “significant ground agency definition of effect” may significantly action
83 CEQA an EIR whose environmental effect requires projects as can be described “significant.” however, word, but is not term of encompasses a key precision
This defined a random It be adequately a of cannot meaning.16 range a of possible of from a thesaurus. Facing spectrum selection synonyms relatively of minor from extending a describing range projects meanings, task to court’s of momentous truly those import proportions, seriousness of which the beyond on this indicate spectrum point of an EIR. foreseeable dictates fact, 21151, is the recog- section our guide In interpreting principal Mammoth, [CEQA] to intended nized Friends “that Legislature of the fullest protection be such afford possible manner interpreted environment of the statutory, language.” the reasonable within scope 259; at supra, 8 Cal.3d (Friends Supervisors, p. v. Board Mammoth of 795, v. 804 accord, 32 (1973) Yorty [108 Inyo Cal.App.3d County of Fund, Inc. v. Coastside see Environmental 377]; Cal.Rptr. Defense be rather effect to beneficial if believes that affect the environment even 1973) Club, Lynn (5th 476 (Cf. v. Cir. Inc. Hiram Clarke Civic “adverse.” than Romney (D.Ore. League v. 421, [NEPA]; Foothills Goose Hollow F.2d 426-427 [NEPA].) suggested that term 877, also 1971) writer has F.Supp. 334 One (Com- EIRs. preparation of high a for the imposes “substantial” too threshold level Environ- ment, Amended and the Mammoth Friends California Aftermammoth: 367-368, Quality 349, light of such Eco.L.Q. Act fn. mental criticism, agency will resources secretary has for resources announced hearings a date. at later guideline, public “do schedule additional work” on this 1974, (Letter Livermore, 5, of the issuance accompanying from Feb. N. B. dated guidelines.) CEQA amended circumstances, for us utilize inappropriate these would be Under we believe it 15040, preempt the Re- validity case to determine the of section trial by drafting conclusion that the Agency sources an alternative definition. Our present appeal. patently court’s is sufficient to decide the definition erroneous affecting the Judge construing “significantly Friendly, phrase stated 16As (42 4332): . . . “While quality of human U.S.C. environment” NEPA law, ‘significant’ add im meaning question determination of the is a one must dictionary mediately that would to make on the basis this determination ‘chameleons, color of their impossible. Although may be which reflect the all words 1948) environment,’ (2 Corp., v. Cir. C.I.R. National Carbide 167 F.2d Hand, (L. J.), spectrum ‘significant’ quality than It covers has that more most. ” ranging through from ‘appreciable’to ‘important’ ‘not trivial’ even ‘momentous.’ 1972) v. (2d Kleindienst Cir. (Hanly 471 F.2d 837 (dissenting opn. J.).) Kleindienst, (For Hanly infra.) Friendly, see discussion of fn. Moreover, effect, CEQA but speak projects does not will which Although agree those which word have such effect. we with the trial court that connotes “may” again “reasonable possibility,” phrase encompasses range meaning extending unlikely might the most influence possibility from the views of a certainty. reasonable man to events which fall but a hair short *15 84 Dist.,
County supra, 701.) Water at 27 EIR is the Cal.App.3d p. CEQA (County Inyo Yorty, supra, “heart” of v. 32 at Cal.App.3d 810), environmental method which data are p. principal by brought to attention of the that inter- and agency public. Consequently of section 21151 which will “afford pretation the fullest possible pro- tection to the environment within reasonable of the scope statutory (Friends supra, v. Supervisors, Mammoth Board 8 Cal. language” 259) 3d at is one which a low threshold will p. impose requirement of an EIR.17 preparation act,
As stated “It by the federal is not Judge Friendly, discussing conceivable that meant to to avoid this readily allow Congress agencies central to mean ‘significant’ requirement reading ‘important,’ ‘momentous,’ or the like. One of of the statement impact purposes that to insure data are before the relevant environmental agency and it considered to the decision to commit Federal resources prior to statute must not be construed so as allow the project; agency to or make its decision in a doubtful case without the relevant data a de- Kleindienst, (Hanly supra, tailed of it.” at v. F.2d 837-838 study pp. (dissenting opinion).)18 use of which have an limiting EIRs projects “impor- effect,
tant” or “momentous” the trial court a test which will adopted bar EIR of an in those close doubtful cases necessarily preparation referred, will, extent, to that defeat the Judge Friendly Legislature’s objective environmental serve as ensuring protection (Pub. criterion in decisions. Resources guiding agency Indeed, subd. (d).) the trial test of court “significant impact” imposes a far threshold an barrier to EIR than higher any state decision; in or federal suggested in its any guidelines reported clearly expressed legislative 17“[I]n view intent to and enhance the preserve ., quality of the ‘signifi environment . will not abuse of the . court countenance qualification cant effect’ subterfuge making as a to excuse impact reports other (Friends Supervisors, required supra, wise the act.” Mammoth v. Board p. Cal.3d at 1972) Hanly (2d majority opinion 18The Kleindienst in Cir. F.2d 823 ad impact vanced the view that merely statement is not submits, statement, arguable close and agency fully cases lieu of such if explanation detailed significant concluding of its reasons for will not have a majority Hanly environmental effect. The v. Kleindienst then reviewed a 25-page government “Assessment of the Impact” prepared by agency Environmental support jail its conclusion that a would proposed significantly affect the environ ment, and inadequate held this assessment failed to was because it include find ings (471 with respect some p. relevant environmental considerations. F.2d at 834.) Judge Friendly’s suggests dissent easily prepared could as an environmental statement. *16 fullest, the least protection but possible not the affords interpretation the statutory language.19 within to the environment addition, that trial added gratuitous stipulation court is “of of a effect project unless the environmental no EIR is required for warrant statutory find no nature.” We long enduring permanent effect one restriction; environmental the duration of an this although in the act suggests which affect its significance, nothing of facts many an EIR. as cannot be of such require that short-term effects significance con trial test erred in its omission court’s also important the instant of an EIR in which called for the siderations preparation in of the drilling project Evaluation of the environmental case. impact concerning the instant case resolution a factual dispute In such or blowouts. that the cause landslides might probability cases, project detailed, an factual analysis project’s EIR—an and impartial, resolution effect—can an service in aiding agency’s invaluable perform County Inyo Yorty, supra, 32 Cal. v. As out in pointed dispute. 795, 814, uncer “The very such of factual controversy cases App.3d as to the created tainty parties assertions made by conflicting to sub . . environmental effect . underscores the EIR necessity stitute and some of factual for tentative degree certainty opinion specula tion.” Yorty, conclude, County Inyo we v.
Thus did the court an “some sub should an EIR whenever it perceives prepare stantial evidence effect’ environ ‘may that the have project (32 J. mentally.” Skelly at As stated by Judge Cal.App.3d p. Reg. Agency States Challenging in Students Pro. United Wright (D.D.C. 1972) environmental report an F.Supp. impact an adverse arguably should be will have “whenever action prepared environmental (Italics in impact.” original.)20
Furthermore, concern controversy existence of serious public environmental effect of a in itself indicates ing prepara- 19Anderson, (1973) under in the the federal decisions NEPA Courts reviews possible ap they given scope NEPA plication” (p. concludes “the act widest 56) imposed environ a “low threshold” (the impact equivalent impact mental statement federal of California’s environmental report). Challenging Reg. jurisdiction 20The Supreme United States Students Court noted States, Agency holding plaintiff Pro. v. United court’s affirmed district standing, had but jurisdiction enjoin ruled that the the Inter district court lacked (United state Commerce Commission. States v. SCRAP 669 [37 412 U.S. 2405].) L.Ed.2d 93 S.Ct. Its opinion prepara does the standards for not discuss of an tion statement. *17 is to of an EIR tion of an is One major EIR desirable.21 purpose of the en and the generally, inform other public government agencies, Yorty, County Inyo v. (see vironmental of a proposed project impact Fund, Inc. v. 795, 810; supra, Environmental 32 Cal.App.3d Defense 695, 704-705; Dist., cf. County supra, Coastside Water 27 Cal.App.3d Agcy. (D.C. District Land Cir. Redevelopment Jones v. Columbia 502, 511 and to demonstrate to an 1974) [NEPA]), 499 F.2d apprehensive has in and considered the fact citizenry agency analyzed of its action. A resolution or Negative ecological implications Declaration, simple will, no environmen have stating effect, serve tal cannot this function. the city decided that the trial court’s instruction to
Having its and in council erred both in its definition of “significant impact” the need for an in the instant omission EIR suggesting considerations case, affected we must now whether that error determine prejudicially issue here is before the council. The proceedings principal council, remand, stated whether the did in fact the test on employ the trial court. council, scheduled the remand of the matter to the Upon body 8, 1973, a which it received additional on at public hearing January effect of the drill- the environmental testimony argument concerning vote, resolved, an The council then ing project. eight-to-seven votes; to their four coun- EIR. Several councilmen require explained cilmen, resolution, two who favored and two who opposed explicitly actions, guidelines major 21The federal for the en provide “Proposed NEPA controversial, vironmental likely highly of which is to be should covered (Council all Quality, Preparation cases.” of Envi on Environmental Guidelines on Statements, 1500.6, (1973).) Impact Reg. guide ronmental lines, § 38 Fed. These first adopted in were in effect at the time of trial in the instant case. Since statute, judicial the California act was modeled on the federal and administrative interpretation of the persuasive authority interpreting latter enactment is the Cali Dist., (See Fund, County fornia act. Environmental Inc. v. Water Coastside Defense 695, 701.) supra, Cal.App.3d guidelines, appeal, pro- The state which took pending effect while this case was is, be, vide that siders or anticipated body opinion “where there or that con- substantial adverse, will consider effect the lead should project] to be [of (Cal. prepare explore an EIR to effects involved.” tit. Admin. Although suggest imply language defendants that this is intended by effect is public question project’s omission that net opinion relevant whether “adverse,” “significant,” this question but not to the whether that effect is wholly illogical interpretation. report provide seems a need for a full to such as the informa- The at least as cases, quiet public great tion and apprehension action, controversy admittedly where the the risk of an adverse effect as in concerns controversy predicted cases in which the concerns whether a effect is adverse benign. Another the trial court’s test. in terms of their determination phrased districts, councilman, in favor of who had voted previously matters officer petroleum asked the assistant administrative city’s long-enduring blowout whether the effect would “permanent had stated that he heard he nothing nature.” Receiving negative reply, mind, resolution. voted for the his change 8 con- the council on January before The record of *18 proceeding the the trial us, court,22 that council it did the trial employed vinces as that of an EIR. Since resolu- court’s test in against resolving are to con- bare we majority, tion carried aby compelled eight-to-seven of momentous that the use of a test which limits EIRs projects clude effect, of disputed and which excludes presence and semi-permanent as issues of criteria controversy suggesting preparation factual public council’s decision.23 a affected the report, prejudicially who voted in eight Defendants out that councilmen point 6, to the on December favor of the resolution filed declarations prior effect,” its which stated trial court’s test “significant pronouncement a have such as sig that the oil districts were not might drilling projects declarations, defendants on these nificant environmental effect. Relying their before the had made minds contend that councilmen eight up 15, against plaintiffs. The to rule January 22On announced its intention court interpreting the judge language applied a test to be observed that court formulated “[T]he environment,’ significant key phrase these ‘may have a effect on project possibility Is a that proceedings. This test is as follows: there reasonable long-enduring permanent have a or form another fourteen nature? important will momentous effect of a or . clearly . With this test . in mind—it was alluded in one rem.and, January without separate by the council times council—the on adopted synonymous a . . is with resolution. court finds that that resolution . This a contemplated project a statement that the is one which have not on effect the environment.” 3, 1973, argue 23Pointing to a defendants attorney letter dated October council, ordinances, when it aware the then unmodified approved was opinion requiring projects Friends Mammoth established test an EIR for all with a ordinances, council, those approving a “nontrivial” effect. Defendants infer that the would a silently employed project that test and found trivial January the environment. Defendants also infer that resolution 1973, stating the council’s belief as of October 1972 that the would not “significant as impact, effect” effect” referred to definition of “nontrivial inference, Piling upon inference inferably which council followed in October. significant effect consistently council the test of the trial court’s defendants conclude that if the utilized opinion, erroneous out in Friends Mammoth set the unmodified could have influenced the council’s decision. test reject pro- proposed We the inferences the defendants. Our review of the council a ceedings January 8 reveals no instance in of October October he on the basis councilman who voted in favor of the ordinances indicated that did so opinion Mammoth. of the “nontrivial effect” test of the in Friends unmodified (cid:127) January defendants test no set out meeting; trial imply court—correct or incorrect—would have influenced them.
The one. As the argument certainly General strange Attorney out, it is to a contention that an erroneous instruc- points analogous jury tion is not because the had resolved to convict prejudicial jurors already When, here, the defendant of the court’s instructions. regardless court remands a case to an administrative to follow agency with.directions test, we must that the administrators specific legal presume faithfully (See followed those 664.)24 instructions. Evid. presumption rebuttable, but the declarations of the councilmen filed prior trial court’s statement of its test fall far short of that the council showing failed to subsequently follow that test.
Section 21168.5 a court to reverse permits a determination of public agency abuse of discretion.” “Abuse discre “prejudicial tion is established if the has not in a manner proceeded *19 (Pub. Code, law.” by Resources 21168.5.) The council’s use of an § erroneous standard constitutes a failure legal in the manner proceed (See law. required by Department Gilles v. Develop Human Resources of (1974) 313, ment 11 Cal.3d 110].) 329 521 P.2d Cal.Rptr. [113 The record in this case demonstrates that this error of law was preju- case, fact, dicial. The in is an excellent of those close present example and cases in which an EIR should be council arguable With the prepared. confronting by but controverted allegations, testimony supported expert that the testimony, could cause an environ- opposing drilling projects disaster, mental the value of an cannot analysis impartial be The intense and concern these haz- gainsaid. with continuing public ards, and with the of oil in the vicinity beaches drilling public and residential neighborhoods, the need for a equally suggests thorough circumstances, and Under these study. we believe that impartial council, test, would have decided direct employing proper prepara- tion of an EIR.
4. Conclusion. .
For the reasons stated in 2 and 3 of this we conclude parts opinion, that the court must reversed. The judgment superior superior court shall set aside the ordinances the oil districts establishing ordinances, on the that the these ground city, enacting failed to com- CEQA. course, with the ply The choose to re- provisions city, 24Evidence Code presumed section 664 states that “It duty that official has been regularly performed.” going This is a presumption proof. rebuttable to the burden (Evid. Code,
89 that act.25 ordinances after with the enact these requirements complying reversed, remanded and the cause superior judgment herein accordance with the views court expressed.26 proceed * J., Sullivan, J., Molinari, J., concurred. C. Wright, CLARK, J.—I dissent. , 1972, the Los ordinance in
When City Angeles enacting zoning Declaration to render a written Council was not Negative required would have no that the ordinance evidence its determination of such was no effect on the environment. There express requirement council one. The and no basis for city proceeded writing implying law, and the evidence before us manner fully supports required effect test holes will have no determination proposed the environment. ordinances, the council performed zoning enacting 49 Cal.2d Claremont (1958) function. (Johnston City legislative Los (1950) P.2d Clemons v. 71]; 835-836 City Angeles [323 P.2d Lockard v. Los Cal.2d 439]; City Angeles [222 453, 460 P.2d As 38].) {ante, Cal.2d recognized by majority [202 council was not to hold 74-75), evidentiary hearing, pp. review of the council’s action is traditional judicial governed rather than the administrative mandamus mandamus principles proce dure of Code of Civil section 1094.5. Resources (Pub. Procedure 21168, 21168.5, of administrative Thus the 21168.7.) §§ requirement Assn, forth in 1094.5 a Scenic set section (see findings Topanga *20 506, 511, 522 v. Los 11 Cal.3d Community County Angeles [113 of 836, 522 P.2d is not 12]) adoption Cal.Rptr. applicable ordinances,1 and no other of law or charter general provision principle to make been cited or the Council has found Los City Angeles requiring fact in ordinances. findings adopting the the trial to set aside 25Occidental than an court suggests opinion requiring for the of the drilling
ordinances will Occidental to file new creation require applications districts, the anew all to steps to follow procedural compel preparatory that, does we note our enactment of the ordinance. To such opinioq quiet apprehensions, such, action, of an for an not the trial court to vacate as filing application compel any ordinance, determination whether which to city’s may lawfully prepare precede or our attention to ordinance any Occidental has called impact report. case, would, this which under the circumstances of rule of the of Los City Angeles that determination. actions any may lawfully precede compel repetition new for leave to 26In view of our of this motion produce disposition appeal, plaintiffs’ evidence on is moot. appeal the Chairman Judicial Council. *Assigned by 1The statement of the that Occidental in was circumventing majority seeking rezoning 76.) (Ante, of a conditional use and unfortunate. permit misleading p. requirement a In the court stated that was the method to obtain rezoning Topanga, appropriate (11 522.) for a Cal.3d at use large parcel. p. special in the Environmental Quality
There is California no express provision (hereinafter CEQA),2 as (Pub. 21000 et Act Resources seq.) § form, to or in its prior approval enacted in 1970 requiring project determination that a will not have either or written any “findings” effect on the To contrary, language environment. CEQA for such were not indicates written findings contemplated that abuse of discretion determination. Section 21168.5 provides in to that the failed be established either by showing proceed “determination de- manner law or that the required by by showing (§ 21168.5; italics evidence. cision” is not substantial by supported be made. only that the determination added.) the act Clearly contemplates it could easily If the had intended written findings, Legislature decision is not when the sup- said that abuse of discretion is established substantial findings, findings or the are not supported ported Assn, Proc., 1094.5; a Scenic (Cf. Topanga evidence. Code Civ. for 506.)3 Angeles, supra, 11 Community County Los Cal.3d stated, statutory the Public Resources Code. otherwise all references are to 2Unless “findings” distinguishes the statutory express requirement 3The of an absence Topanga. Topanga man- we determined that the administrative instant case from 1094.5, by that abuse procedure providing of Code of Civil Procedure section dam.us of “ by the supported decision ‘is not discretion is established if the administrative ” evidence,’ agencies findings, findings supported by or the are not that findings. (11 subject specific must set forth review administrative mandamus p. Cal.3d at Legislature specific reasoning Topanga have intended Our was that must reviewing duty compare findings in view of the fact that it established the court’s “ 515; (11 findings’ p. ‘the . . .” at the evidence and ultimate decision Cal.3d otherwise, added.) Legislature had italics have We noted that desired it could “[i]f possible issuing declared for mandamus absence of substantial basis 515; (11 agency’s p. action.” Cal.3d at italics support evidence administrative Topanga added.) Legislature we conclude the did On the basis rationale must CEQA, findings provided case of it not intend in the has evidence (§ 21168.5.) agency. compared only to the “determination or decision” of the legis- majority having imposed any requirement findings on the disclaims stating requires only process, lative effect that it that the determination of no *21 (Ante, majority put writing. p. the be in The reasons environment writing way in such there is no a court can tell if the actu- that ally the absence of case, requirement fully the If this is the the would seem made determination. by prior either the of the councilmen to trial or the the satisfied council declarations submitted majority’s objection January of 8 1973. These eliminate the resolution .i.e., record, prior they approval a in fact made show that determination was the ordinances. however, (ante, 82-88), By lengthy impeachment pp. the of the council resolution negative majority requires of a a mere written statement of the more declaration than only re- adequately The satisfied the fact determination. resolution formal resolution, purportedly quirement majority. going the but imposed by By behind to writing in effect not that the determination be reduced requires only majority affirmatively also that it evidence reasons. proper supporting CEQA Further for the did conclusion not a written support require Declaration is in furnished this court’s decision Friends Negative by 247, Cal. Supervisors Mammoth Board 8 Cal.3d 270 [104 a Friends Mammoth rejected 502 P.2d expressly Rptr. 1049]. after of written when an findings agency approves requirement It inconsistent to of an environmental impact report. appears no en of written for a determination that imply requirement findings vironmental is when this court refused to necessary impact report imply for such for the more whether decision requirement findings important in of the adverse admitted environmental effects approve project light disclosed an environmental by impact report.
Sound considerations militate of for- practical against implication malistic into the requirements legislative process. legislative When has with all body substantive and all complied requirements express formalistic will should not be frustrated requirements, majority’s by a formalistic adding for which could requirement, necessity foreseen those by acute possessing clairvoyance.
The unreasonableness of a formalistic into the implying requirement legislative process illustrated dramatically requirement implied majority Unless the today. somehow legislative body anticipated today’s determination, implied of a written requirement ordinance every CEQA the use of land affecting between the enactment of adopted has adoption guidelines been improperly adopted, ordinances including where “it can be involving seen projects with certainty activity will not have a question effect on the environment.” within the Although projects coming quoted term are from the written presently Declaration exempt Negative require ment expressly (Cal. Code, imposed by guidelines Admin. tit. 15060), with the guidelines three-tiered structure relied upon were majority not until 1973.4 adopted thousands of ordi Probably 4The 1972 CEQA provide guidelines amendments shall contain a list of classes of projects Secretary which the Agency of the Resources has found do not (§ 21084.) effect on the environment. project falling A within these classes exempt (§§ provisions CEQA. 21084, 21085.) from the guidelines presently (Cal. contain a projects. list of such §§15100-15112.) Admin. tit. However, CEQA itself does exempt any projects other than ministerial ones and emergency repairs (§§ 21080, to public 21085); service facilities hence there were projects no other CEQA than those mentioned in which were exempt promulga until guidelines. tion of the *22 general guidelines the establish a structure—projects three-tiered for which an filed; filed, EIR is for which a projects Declaration is and categorically Negative However, exempt projects. only a provided two-tiered structure is as to the type of
92 the term were not within properly nances those coming quoted including under today’s majority opinion.5 adopted written determination on the the of a legis-
In imposing requirement which, us down a lative the also starts dangerous path majority process, future, The majority if in the will have unfortunate followed consequences. with writ- not on the basis of dealing the language implies requirement of the set in the the relied on is that forth purposes ings; only language statute, the method to the of a act. However laudable or noble purposes should ordinances under it be followed council in city adopting remain the same unless the statute itself or authorized regulations provide enactment, the method of for a different method of enactment. To vary as to virtues statutory depending judges’ opinions purpose, upon can is an interference with legislative process improper lead to confusion and frustration of the will. majority’s council was not written
Since produce findings Declaration, it fact or a written determination in form of a Negative (Evid. has been must be that official duty regularly performed presumed Code, ascertained the existence 664) and that the has body legislative § its Orinda Homeowners Commit- of those facts essential to action (e.g., 768, Supervisors tee v. Board 11 775 Cal.App.3d Cal.Rptr. [90 EIR, 88]). As council the ordinances without preparing passed it must be it had determined the informational holes would not presumed effect on the environment.
Evidence of events after the October 17 1972 occurring passage ordinances, the councilmen submission of declarations including (both and the council of which stated that resolution January because the council ordinances were October approved effect on the en- believed the limited would have no significant collection” or “re- purpose ordinance before of “basic data us. Activities for the activity in a “serious categorically exempt source evaluation” are unless the will result Code, major (Cal. tit. or disturbance to resource.” Admin. an environmental major to an en- activity § If or disturbance would result “serious not, resource,” required. If perforce vironmental it would seem that an EIR is disturbance, case, activity finds such a exempt. In the instant if the council find, of a prepared. requirement an EIR it is not even a If does not so there m.ust Declaration, of a Declaration Negative for the do filing guidelines require Negative (Cf. categorically Cal. public approves exempt. when 15035.5.) Admin. tit. it majority implied writing requirement, imply exemp could 5Since the has air, may at will. Never tion too—once the fabric is woven from thin theless, it be embellished any implication requirement exemption in the absence language dealing writing requirements appears a clear exemptions with from them legislative process. invasion *23 the deter- to make that the council failed vironment) does not establish tends to presumption the evidence support If anything mination. de- for unnecessary it was event any was made.6
the determination made, for the actually the determination was fendants prove failed in their favor when plaintiffs have been resolved issue should sufficient to overcome adduce evidence presumption. law. The by in a manner required
I conclude the council proceeded sub- by determination is whether the council’s supported thus inquiry in the record to evidence (§21168.5.) There ample stantial evidence. extremely decision. The ordinances drilling sustain the contemplated authorized; bore holes were informational test limited two Only scope. with the to be removed to last only days, rigs the entire was operation conditions were of other restrictions and and a number upon completion; commercial Under no circumstances was produc- imposed project. of the drilling tion of oil to be With permitted. respect from vibrations, that vibrations testimony Occidental produced expert less than those at a the drill site would be 150 feet from drilling point 5 to 10 times less caused movement and by nearby along highway, door. As to the than the ambient vibrations outside the courtroom possi- “blowout,” incidence of blowouts of a there was evidence that the bility Occidental also in- at urban drill sites was of 1 only percent.7 2/10ths the drill site troduced methods which demonstrating photographs with land uses. would be made consonant aesthetically adjacent marshalled Occi- of the evidence foregoing represents sampling effect of the test dental to doubts about the environmental any dispel holes.
The limited authorized the ordinances is a “basic data drilling as the object collection” or “resource evaluation” inasmuch activity field is to determine size and the Riviera oil yield obtain data essential to a assessment of oil thorough pro duction. Unless the will council determines that this result city activity a “serious or major disturbance to an environmental resource” pro CEQA test holes categorically exempt will be under the posed from (Cal. Admin. tit. In the event present guidelines. 17-page 6In a letter of 3 council attorney October 1972 advised that all projects may have a effect on the environment changes specifically an EIR and should be ac concluded that all zone companied by permitted an EIR if the use effect on the en vironment. experts plaintiffs 7The “very conceded that the incidence of blowouts was low” petroleum industry developed “very had sophisticated pre means” venting such accidents. *24 not result in a serious or major council concludes the will will not resource, council
disturbance to an environmental what- Declaration nor to render a written any'writing Negative required ordinances, do not of the for the guidelines soever prior approval any a determination that a categorically require writing CEQA. file a brief notice of from The “may” exemption exempt 15035.5.) tit. This (Cal. is not to. Admin. but compelled as well as the observation futility, highlights inappropriateness, of the which majority implies today. requirement I would affirm judgment.8
McComb, J., Burke, J.,* concurred. for a rehear Petroleum Occidental
The Corp. petition respondent 29, 1975, read was modified and the denied was January opinion ing Mosk, J., who deemed Molinari, sat in above. J.,† place printed should Clark, J., of the was himself petition opinion disqualified. be granted. questions highly pertinent resolving a number of cases majority balks at 8The CEQA, disposition I of this case and arising^ feel leaves others un under majority not decide Specifically, the does what is to an unfair extent. certain deter a more definite test for to formulate declines Declaration and in a Negative Thus, “significant environment. while the
mining effect” on the what constitutes involved, it does not the environmental issues city council must now redetermine guidelines is the forth in the that adherence to standards set even assurance majority informing the coun pursue. The remands the case without proper course it deliberations. expected what in future cil majority application political on the of the aspersions cast The unwarranted willingness majority’s to reach its desired perhaps explain the in this case process result provides record, however, confronting important questions law. without believing any political channels were abused manner. no basis for sitting assignment by Supreme Court under *Retired Associate Justice of the Judicial Council. Chairman Judicial Council. the Chairman of the Assigned †