An environmental impact report for the Cal-Fed Bay-Delta project has been upheld by the state Supreme Court. The unanimous decision was at least somewhat academic because the Cal-Fed process has essentially halted. Still, the court appeared to signal that it would defer to policymakers on Delta water and environmental policy, and to agencies that certify broad program environmental impact reports.
In upholding the Cal-Fed EIR, the state high court overturned a Third District Court of Appeal decision rejecting the environmental study (see CP&DR Legal Digest, November 2005
). The appellate panel determined the program EIR (which also served as an environmental impact statement to meet federal law) was inadequate under the California Environmental Quality Act (CEQA) because the PEIR did not consider the alternative of reduced water exports from the Delta, failed to identify water that would be used to carry out the program, and did not provide details of an "environmental water account."
The state Supreme Court ruled that Cal-Fed directors had good reason to dismiss a reduced water export alternative as infeasible, and ruled that a program EIR for a project as large as Cal-Fed need not provide the details on which the Third District insisted. Those details could be postponed until specific projects to carry out the larger program were proposed, the court determined.
"The PEIS/R complied with CEQA by identifying potential sources of water and analyzing the associated environmental effects in general terms. The level of detail contained in the PEIS/R's impact analysis was consistent with its first-tier programmatic nature," Justice Joyce Kennard wrote for the court. "By compelling Cal-Fed at the first-tier stage to provide greater detail about potential sources of water for second-tier projects, the Court of Appeal's decision undermined the purpose of tiering and burdened the program EIR with detail that would be more feasibly given and more useful at the second-tier stage."
Fourteen years ago, 18 federal and state agencies with management or regulatory authority over the Delta signed the Bay-Delta accord with the idea of solving numerous water and environmental concerns to everyone's satisfaction. In 2000, the state resources secretary certified the program EIS/EIR and approved the 30-year Cal-Fed program. Although portions of the program advanced — mostly environmental restoration upstream from the Delta — Cal-Fed has withered during recent years. Some government funding never materialized and new efforts at planning for water and the Delta emerged. Now, the governor's Delta Vision Blue Ribbon Task Force is formulating policy, while various state and local entities work on a Delta habitat plan and Delta flood control plans. Pending state legislation would essentially end the state's role in Cal-Fed.
"There is no more formal Cal-Fed process that will build on this decision," said attorney James Moose, who represented the Metropolitan Water District of Southern California in the litigation. "No one is using this EIR anymore. But there is the Bay-Delta conservation plan process that is going forward, and this decision will provide guidance."
What is important, said Moose, is the court's deferred to Cal-Fed officials on the fundamental purpose of the project. Environmentalists as well as the Regional Council of Rural Counties, both of whom sued over the Cal-Fed EIR, argued that a reduced water export alternative should have been considered — an argument that the Third District accepted. But the state high court disagreed.
"As the Court of Appeal correctly pointed out, an EIR should not exclude an alternative from detailed consideration merely because it ‘would impede to some degree the attainment of the project objectives,'" Kennard wrote, citing California Code of Regulations 14 § 15126.6, subdivision (b). "But an EIR need not study in detail an alternative that is infeasible or that the lead agency has reasonably determined cannot achieve the project's underlying fundamental purpose."
"Cal-Fed's determinations that an integrated water solution was necessary to the success of the program, and that the water supply objective could not feasibly be achieved with a reduced exports alternative, are supported by substantial evidence and consistent with the rule of reason," Kennard continued.
Richard Frank, director of University of California, Berkeley's Center for Environmental Law and Policy, said he was struck by the first eight pages of the court's opinion, which contain sweeping statements about water policy, the plight of the Delta and government's failure to resolve the issues.
"Justice Kennard and the court were speaking to a larger constituency," said Frank, a member of the governor's Delta Vision task force. Frank said he has commended the opinion to the task force.
The court, said Moose, placed provision of water on the same footing as environmental protection.
Environmentalists decried the high court's decision. Since the Cal-Fed EIR was adopted in 2000, Delta-dependent fish species have declined, as has water supply reliability, said Mindy McIntyre, water program manager for the Planning & Conservation League, one of the plaintiffs. "This tragic history clearly dispels the myth that Delta ecosystem restoration can be achieved alongside ever-increasing levels of freshwater export," she said.
As for potential CEQA precedent, Moose said the court provided some standards for program EIRs. The decision indicates that an emphasis on a project's essential objectives is important, he said. The decision also indicates that the court is willing to uphold a program EIR, even one involving water.
Last year, the court rejected a program EIR in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
, (2007) 40 Cal.4th 412 (see CP&DR, March 2007
). In Vineyards
, the court ruled that the program EIR should have described long-term water sources for a 20,000-unit development, and the impacts of using those sources, in more detail. Unlike Vineyards
, where decision-makers knew water would be needed for a certain number of housing units, the Cal-Fed program was designed to be flexible. Thus, Cal-Fed appropriately deferred analysis of specific water projects such as sales and transfers until those projects were identified and could be studied in detail, the court determined.
The decision is the state Supreme Court's fourth CEQA ruling in two years and came out only two weeks after the court upheld the environmental review of three timber harvest plans (see next Legal Digest
item). Three other CEQA cases are pending at the court.
The court "is really engaging in CEQA to a far greater degree than at any other time," Frank observed. "I think it's part of a renewed interest by the court in environmental policy and law in general."
The Case:In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings
, No. S138974, 08 C.D.O.S. 6822, 2008 DJDAR 8241. Filed June 5, 2008.
For California Farm Bureau Federation: Alan Bick, Gibson, Dunn & Crutcher, (949) 451-3800
For Regional Council of Rural Counties: James Wagstaffe, Kerr & Wagstaffe, (415) 371-8500.
For State of California: Danae Aitchison, attorney general's office, (916) 322-5522.