In an opinion certified for partial publication, the Third Appellate District on November 3, 2021, decided Farmland Protection Alliance v. County of Yolo, finding that the California Environmental Quality Act (“CEQA”) does not allow an agency to split environmental review across multiple levels of review—for example, by preparing a negative declaration to address some project issues and an environmental impact report to address others. Rather, CEQA requires an agency to prepare a full EIR whenever any aspect of a project may have a significant effect on the environment.

In Farmland Protection Alliance, Respondents Yolo County and its board of supervisors (the “County”) had adopted a mitigated negative declaration (“MND”) and issued a conditional use permit for the operation of a bed and breakfast and commercial event space related to the onsite agricultural operations (“Project”).  As part of the Project, the applicants sought to provide visitors with educational opportunities to interact with the onsite farming operations. The site is situated on an 80-acre parcel that is agriculturally zoned and historically known as William Cannedy Farm; it includes three dwellings, three barns, a water tower, grain silos, and a two-acre fishing pond. The MND identified potentially significant impacts to agricultural and biological resources and provided that, as a condition of Project approval, the applicant would be required to implement certain mitigation measures to address those impacts.

At the trial court, Petitioners Farmland Protection Alliance and Yolo County Farm Bureau (“Petitioners”) challenged the County’s approvals and the court found that substantial evidence supported a fair argument under CEQA that the Project may have significant impacts on three sensitive species—the tricolored blackbird, valley elderberry longhorn beetle, and golden eagle. The trial court ordered the County to undertake further study and prepare an EIR focused solely on the Project’s impacts on the three sensitive species. Petitioners appealed, arguing that the trial court erred by ordering the preparation of a limited EIR rather than a full EIR.  The Third Appellate District agreed.

Public Resources Code section 21168.9 provides trial courts with discretion to craft a proper remedy after finding that certain parts of an approval do not comply with CEQA. However, writing for the Third Appellate District, Justice Robie concluded that the remedies available under Section 21168.9 do not trump the mandatory provisions of CEQA, and are intended to facilitate compliance with, rather than circumvention of CEQA. If an initial study uncovers substantial evidence that any aspect of a project may cause a significant effect on the environment, the agency must proceed to the next tier of environmental review and prepare a full EIR. Here, the Court in its opinion noted that both sides’ experts expressed concern about the impacts to certain species and recommended more substantial mitigation measures.

This case seems to be in tension with a growing trend in the cases providing courts with greater latitude to craft particular remedies, as well as with Section 21168.9, subdivision (b), which emphasizes that any order of noncompliance “shall include only those mandates which are necessary to achieve compliance . . . and only those specific project activities in noncompliance with [CEQA].” It often makes little sense to force a lead agency to prepare a full EIR where the scope of a particular challenge and ruling is limited to discrete technical issues that might be easily remedied.

Photo of Christian L. Marsh Christian L. Marsh

Christian Marsh advises clients on regulatory and land use entitlement issues governing real estate developments, ground and surface water supply projects, renewable and non-renewable energy facilities, and port and waterfront developments.

Regardless of the project’s size or scope, Christian provides effective and practical…

Christian Marsh advises clients on regulatory and land use entitlement issues governing real estate developments, ground and surface water supply projects, renewable and non-renewable energy facilities, and port and waterfront developments.

Regardless of the project’s size or scope, Christian provides effective and practical advice on matters related to endangered species, water rights, water quality, wetlands, environmental review, and the public trust doctrine. With a particular emphasis on matters pertaining to NEPA and CEQA review, Christian represents clients in state and federal court, and represented the prevailing parties in two appeals before the California Supreme Court. (Read more…)