Key Points

• The court found that plaintiff’s reliance on an issue raised by third-party commenter to establish exhaustion was a risky endeavor; insofar as a third party settles institutes its own challenge on an issue and settles a claim, the plaintiff in a later action, at least in some circumstances, cannot maintain its own challenge on that same issue.
• The court reinforced that the standard for a lead agency’s methodology of analysis is not perfection; it is clarity and reasonableness.
• The court affirmed recent precedent that challenges to a determination of general plan consistency must be reviewed under the deferential standard of Code of Civil Procedure section 1085, as general plan consistency in and of itself is not a CEQA issue.

---

A recent case out of the First Appellate District illustrates the burden placed on CEQA plaintiffs and the relative deference accorded to lead agencies.

In Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444, the court summarily rejected Stop Syar Expansion’s (SSE) attempt to invalidate a Napa County (“County”) Environmental Impact Report for the expansion of an aggregate mining operation at a mining quarry located in the County. The court affirmed the denial of all sixteen of SSE’s claimed deficiencies, and in the process underscored the importance of petitioners ensuring the administrative record satisfies exhaustion requirements for all claims, noted that EIRs need not be perfect to satisfy their informational purpose, and affirmed recent precedent that general plan consistency is not a CEQA issue and should be reviewed under a deferential mandamus standard.

The Court Underscored the Burden to Demonstrate Exhaustion

On numerous issues, the court noted SSE’s failure to demonstrate that it exhausted administrative remedies. The Napa County Code of ordinances requires prospective appellants to file an appeal packet (“Packet”) which must include “[i]dentification of the specific factual or legal determination of the approving authority which is being appealed, and the basis for such appeal. The court, citing North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, was clear that the burden to establish exhaustion is squarely on the petitioner.

Two points that the court made are of particular note.

First, the court, relying on Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535, stated that the petitioner must explain in sufficient detail how each of its claimed bases for exhaustion “fairly apprised” the agency of CEQA non-compliance. SSE attempted to establish that it satisfied the exhaustion requirement for its specific claim that the County improperly used a five-year historical average baseline for truck traffic, instead of the most recent available year of data, by relying on general statements SSE had made in its Packet characterizing the truck traffic baseline as broadly “inaccurate” and “misleading.” The court found that such general statements do not “come[] close to apprising the Board of Supervisors of the five-year average/2009 actual production issue SSE has raised in this court action.”

The court found similar deficiencies in SSE’s attempt to rely on vague references to an improper water usage baseline to demonstrate exhaustion for a specific claim regarding the County’s methodology of combining three sources of historical data to approximate a water usage baseline. The court also rejected SSE’s attempt to rely on broad assertions of an inadequate greenhouse gas analysis to demonstrate exhaustion for its specific claim that the County fails to mitigate the loss of carbon sequestration resources through deforestation. The court was clear that the administrative record must contain a fairly specific claim of a deficiency in order for that deficiency to be raised in a legal action. In rendering this holding, the court affirmed prior holdings that an unrepresented party need not be as specific as a represented party.

Second, the court noted that a challenger’s reliance on an issue raised by a third-party commenter to establish exhaustion on that issue is a double-edged sword - any judgment in an earlier claim brought by that third-party commenter relating to the aforementioned issue will have a preclusive effect. SSE relied on the comments of another party, Skyline Park, to satisfy exhaustion on specific claims relating to water quality. However, Skyline Park filed its own court action to challenge the County, specifically alleging the same water quality issues, which was eventually dismissed with prejudice after Skyline Park reached a settlement with the County. SSE argued that its claims on water quality should not be precluded because it was not a party to the Skyline Park action. However, the court was not convinced, opining, “we fail to see how SSE can align itself with Skyline Park for purposes of exhausting administrative remedies, but then disclaim any community of interest for purposes of the preclusive effect of Skyline Park’s litigation efforts.” Informative of the court’s decision, at least in part, was that the County’s appeal ordinance required the issuance of separate decisions as to each appellant and, as to each, the decisions were to address only the ground raised by that appellant. Another factor influencing the court’s decision was a determination that when one objector relies on the administrative comments of another objector, a “community of interest” is formed, and there exists privity between the objectors.

Perfect Data is Not Required But Cannot Rely on “Plainly Faulty” Data

SSE argued against numerous calculations and methodologies used by County in the EIR, and in each instance the court found that the agency has satisfied all CEQA requirements. SSE made perhaps its strongest argument on this front in critiquing the County’s calculation of a water usage baseline, and the court’s response was instructive.

The County relied on a Water Supply Assessment, but the quarry was not connected to a municipal water source or water meter and historically had not needed to account for exact amounts of water used. Instead, the Water Supply Assessment used a combination of on-site, well-extraction-rate data, and water-filling-truck counts during varying periods between 2009-2011 to estimate total water usage during that period, and then used total quarry production figures over that time to calculate a figure of 25 gallons water needed per ton of quarry output. The County then took this 25 gallons per ton figure and multiplied by the EIR’s baseline quarry production assumption of 49,474 tons per year to calculate an annual baseline water usage figure.

SSE argued that this calculation was inappropriate, as it relied on an “assortment of information” regarding water usage, as opposed to a unified data set, and utilized an “unsupported estimate” of water usage ratio, which was then scaled up to create a baseline water usage figure that was based on the assorted data and other allegedly faulty assumptions regarding historical water use. The court agreed that the baseline was derived from an “assortment of information” but disagreed with SSE’s characterization of the baseline as “unsupported.” The court noted that in the absence of historical metering, the County was forced to “devise a methodology” for estimating a baseline. The court was clear. The standard for the County’s methodology was not perfection; it was clarity and reasonableness. The court found that the County clearly explained its methodology and its reasons for adopting it and that its methodology was neither “marred by plainly faulty data” nor “unreasonable.” Therefore, the court found no basis to conclude that the County’s use of its estimated baseline is improper.

The Court Affirmed the Review Standard for General Plan Consistency

As the court noted, under The Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, general plan consistency is not, in and of itself, a CEQA issue, as CEQA only requires that any inconsistencies with the general plan be discussed& in an EIR. Thus, challenges to a determination of general plan consistency must be reviewed under the ordinary mandamus standards of Code of Civil Procedure section 1085. This review standard is highly deferential to the agency, given that “the body which adopted the general plan policies in its legislative capacity has unique competence to interpret those policies when applying them in its adjudicatory capacity.” Under Highway 68, a determination of general plan consistency can only be set aside if the petitioner is able to show why “based on all of the evidence in the record, the determination was unreasonable.”

SSE attempted to argue around this deferential standard, arguing that its claimed injury was not consistency or inconsistency with the general plan but was instead the County’s failure to adequately inform the public about inconsistencies with the general plan as mandated by CEQA informational requirements. The court was unconvinced by this, noting both SSE’s lack of identification of precedent contrary to Highway 68 and SSE’s failure to articulate any alternate standard of review. Consistent with Highway 68, the court accorded great deference to the County’s determination of consistency, stating that “while SSE’s perspective is that the project is ‘inconsistent’ with the County’s general plan, on this record, it was the prerogative of the County to conclude otherwise.”

Conclusion

The Stop Syar Expansion decision serves as a useful reminder that CEQA does not demand perfection, nor will courts have much patience for vague administrative comments on a CEQA document. Accordingly, project opponents cannot necessarily rely on broad or general statements of deficiency in hopes of refining their arguments at the litigation stage.

Furthermore, would-be plaintiffs would do well to remember that they face an uphill battle overcoming lead agency deference, especially when it comes to disagreements about methodology or consistency with an agency’s own policies. The mere existence of a plausible alternative methodology or a different conclusion will not be sufficient to carry the day. So long as the record demonstrates a reasonable basis for the agency’s decisions, a court will be largely hesitant to set them aside.