California
Supreme Court Upholds CALFED Environmental Impact Report
On June 5, 2008, the California Supreme Court upheld the CALFED
program’s Programmatic Environmental Impact Statement/Report,
which a Court of Appeal had struck down as inadequate under the
California Environmental Quality Act. In re Bay-Delta Programmatic
Environmental Impact Report Coordinated Proceedings, ___ Cal.4th
____ (Cal. June 5, 2008). The Court’s ruling upheld CALFED’s
omission from its environmental analysis an alternative requiring
a reduction in exports from the Bay-Delta and its use of a programmatic
“first tier” environmental analysis document to analyze
water supply issues at a general level.
Background
The CALFED
program was formed in 1994 by 18 state and federal agencies to address
problems in the Sacramento-San Joaquin Delta related to declining
wildlife habitat, an increasing risk of failure of Delta levees,
and degradation of water supplies from the Delta. CALFED’s
goal was to design and implement a long-term plan to both restore
the ecological health of the Delta and to improve management of
Bay-Delta water for the many beneficial uses that depend on it.
As a first step to implementing this long-term strategy, in July
2000 CALFED released a final Programmatic Environmental Impact Statement/Environmental
Impact Report (“PEIS/R”) prepared pursuant to the National
Environmental Policy Act and the California Environmental Quality
Act (“CEQA”).
The stated goals of the CALFED Program as described in the PEIS/R
were “to develop a long-term comprehensive plan that will
restore ecological health” to the Bay-Delta to “improve
water management for beneficial uses of the Bay-Delta system.”
Consistent with its programmatic nature, the PEIS/R described the
CALFED program “a general description of a range of actions
that will be further refined, considered and analyzed for site-specific
environmental impacts as part of second- and third-tier environmental
documents prior to making a decision to carry out those later actions.”
Slip. Op. at 9.
The PEIS/R was challenged on CEQA and NEPA grounds in three different
legal actions, which were coordinated in 2001 in Sacramento County
under the title Bay-Delta Programmatic EIR cases, Judicial Council
Coordinated Proceeding No. 4152. In April 2003 the trial court ruled
on the CEQA claims, concluding that the PEIS/R wholly satisfied
the requirements of CEQA.
In 2005, the Third District Court of Appeal held, in a 200+ page
opinion, that the PEIS/R was deficient under CEQA for the following
reasons: (1) it failed to discuss an alternative to the CALFED program
that would require a reduction in water exports from the Bay-Delta;
(2) it did not adequately discuss the environmental impacts of diverting
water from various potential sources; and (3) it failed to include
certain information regarding the Environmental Water Account.
The Supreme Court Decision
The Supreme Court disagreed with the Court of Appeal on
all three of its bases for invalidating the PEIS/R. First, on the
reduced exports alternative, the Court held that CALFED’s
reasons for eliminating a reduced exports alternative from analysis
under the PEIS/R were supported by substantial evidence and consistent
with CEQA. In an early phase of the program, CALFED had studied
the feasibility of reducing exports of Bay-Delta water by means
of a “demand reduction approach” and submitted this
alternative along with nine others for public comment. Opposition
to this strategy by the public and CALFED agencies led CALFED staff
to conclude that demand reduction techniques would in fact exacerbate
conflicts rather than alleviate them. According to the Court the
PEIS/R adequately explained why the alternative was not studied
further – actions such as increasing emphasis on water use
efficiency and eliminating actions that would improve export water
supplies and the adequacy of Bay-Delta water to meet Delta outflow
needs “would not achieve the primary objective for water supply
reliability.” Slip. Op. at 21. In other words, reducing or
capping exports may achieve water quality objectives but would prevent
CALFED from achieving its water supply reliability objectives.
Under the Court’s analysis, while an EIR should not exclude
an alternative from detailed consideration merely because it would
“impede to some degree the attainment of project objectives,”
an EIR need not study an alternative that is either infeasible or
that the lead agency has determined cannot achieve the project’s
underlying fundamental purpose. CALFED’s determination that
a reduced export alternative was not feasible because it would compromise
the water supply objective and not achieve the basic underlying
goal of reducing conflicts, and its decision to not carry forward
the reduced export alternative into the final PEIS/R, was therefore
a proper exercise of its discretion under CEQA.
The Court of Appeal had also concluded that the PEIS/R should have
included a reduced export alternative because such an alternative
would be “environmentally superior” in terms of ecosystem
restoration in the Delta, one of the objectives of the program.
The Supreme Court rejected this line of reasoning because it fails
to distinguish between preexisting environmental problems in the
Delta and adverse environmental effects of the CALFED program itself.
The Court of Appeal erred in its determination that the reduced
export alternative should have been included because it more effectively
addresses preexisting environmental problems, because preexisting
environmental problems are part of baseline conditions and are not
program-generated environmental impacts.
Second, the Court of Appeal erred in holding that the PEIS/R lacked
sufficient detail about the sources of water that would be used
to implement CALFED and the environmental impacts of supplying water
from each source. Listing only the potential sources of water and
deferring ultimate source determinations for later, in the opinion
of the Court of Appeal, violated the basic informational purpose
of and environmental document under CEQA.
The Supreme Court concluded that as a “first-tier” program
EIR, the CALFED PEIS/R was not required to identify particular sources
of water for "second-tier" projects; the PEIS/R only needed
to analyze generally the effects of obtaining water from potential
sources, and the PEIS/R satisfied this requirement. The Court referenced
its recent opinion in Vineyard Area Citizens for Responsible Growth,
Inc v. City of Rancho Cordova (2007) 40 Cal. 4th 412 in explaining
that a different amount of detail is required for different stages
in the tiering process and in upholding the use of tiering to defer
analysis of environmental impacts to later phases. The Court generally
endorsed CALFED’s use of a programmatic “first tier”
PEIS/R and the sufficiency of its discussion of sources of water,
which included identification of potential sources and an evaluation
“in general terms” of the potential environmental effects
of supplying water from those potential sources.
Finally, the Supreme Court rejected the Court of Appeal’s
holding that the PEIS/R did not provide adequate detail about the
Environmental Water Account (EWA) project. The EWA is a “second-tier”
project under which acquisitions, banking, transfers and borrowing
of water by state and federal agencies would provide increased water
for fish without reducing deliveries to water users, effectively
balancing the competing demands of fisheries with the need to improve
water supply reliability. The Court of Appeal held that specific
information about the EWA, including specific sources for the EWA’s
initial assets, should have been included in the PEIS/R and was
improperly deferred for later environmental review.
Again the Supreme Court upheld the level of detail in the PEIS/R
as consistent with CEQA’s tiering principles, under which
a lead agency can focus a first-tier environmental analysis on a
general plan or program and leave project-level details to subsequent
analyses of specific projects.
The Supreme Court’s holding has important implications for
both water management in the Delta and CEQA. The upholding of CALFED’s
decision to leave out the alternative of reduced water exports from
the Delta gives the current Bay Delta Conservation Plan flexibility
in its consideration of such an alternative and validates CALFED’s
approach, from a CEQA perspective, of aiming to both restore ecological
health and improve water management in the Delta. The Court’s
approval of CALFED’s programmatic “tiered” CEQA
analysis provides important guidance on the tiering of environmental
analysis documents under CEQA.
In
re Bay-Delta Programmatic Environmental Impact Report Coordinated
Proceedings Supreme Court Decision
For more information,
please contact Downey Brand lawyers whose practices involve Bay-Delta
issues and the California Environmental Quality Act: Kevin
O'Brien, Steve Saxton,
David Aladjem, Jennifer
Harder, Joe Schofield
or Andrea Clark at (916)
444-1000.
Contact us if you
have questions or want more information. Please note that the information
contained in this article is not intended to provide legal advice.
You should consult with an attorney and not rely on any information
contained herein regarding your specific situation.
