The developers of a proposed 942-acre community of homes and businesses adjacent to the town of Friant near Millerton Lake were dealt a split decision by the California Supreme Court over the fate of their would-be community – almost eight years after it was initially approved by the Fresno County Board of Supervisors.
In an opinion issued Monday, Justice Ming Chin, joined by his six colleagues on the high court, upheld part of a 2014 ruling by the 5th District Court of Appeal finding that a county-approved environmental review of the Friant Ranch project – a proposed development of about 2,500 homes and apartments as well as associated businesses, parks and other features – did not provide a sufficient analysis under the California Environmental Quality Act of air quality effects from the new community.
But the opinion also reversed the 5th District’s finding that a plan to impose more stringent measures to offset air pollution effects in the future was too vague to be a meaningful step to reduce health risks to insignificant levels.
Jim Moose, a Sacramento attorney representing project developer Friant Ranch L.P., said Monday that the ruling means the developer and the county must now revise the narrow portion of the 2011 environmental impact report to comply with CEQA and the justices’ wishes.
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“In a typical CEQA challenge, there can be numerous arguments made by the project opponents, and to successfully defend, you have to win on all those arguments,” Moose said. “So even if it looks like a split decision, if you have to go back and revise the EIR, it feels like a loss.”
“So now we have to go back and re-do the air quality analysis, and once we do that, hopefully we’ll be good to go,” Moose added.
Shortly after the Fresno County Board of Supervisors approved the Friant Ranch project, several groups including the Sierra Club, the League of Women Voters of Fresno and Revive the San Joaquin sued the county and the developer under the state’s environmental law challenging the adequacy of the environmental analysis that the county used to justify its approval.
The county and developer prevailed in Fresno County Superior Court, but that judgment was appealed to the 5th District. In May 2014, the appellate court ordered the preparation of a revised environmental impact report because the justices determined that the original report failed to correlate air pollution from the project and its associated traffic to effects on human health, that mitigation measures were too vague and unenforceable, and did not explain how mitigation measures would substantially reduce air quality effects from the project.
Friant Ranch L.P. then petitioned the Supreme Court to hear its appeal of the 5th District’s ruling. Attorneys for the Sierra Club and Friant Ranch L.P. presented oral arguments to the Supreme Court justices on Oct. 2.
“In our view, the EIR’s air quality impacts discussion and its mitigation measures meet CEQA requirements for specificity and enforceability with one exception: The EIR fails to provide an adequate discussion of health and safety problems that will be caused by the rise in various pollutants resulting from the Project’s development,” Chin wrote in Monday’s opinion. “At this point, we cannot know whether the required additional analysis will disclose that the Project’s effects on air quality are less than significant or avoidable.…”
“Absent an analysis that reasonably informs the public how anticipated air quality effects will adversely affect human health, an EIR may still be sufficient if it adequately explains why it is not scientifically feasible at the time of drafting to provide such an analysis,” Chin added.
Moore contended in October that given the magnitude of air pollution problems in the San Joaquin Valley, particular chemicals that rise into the atmosphere and combine in sunlight to form ozone, the additional pollutants that would come from the Friant Ranch project would be miniscule.
“Think about everything that’s going on in the Valley, all the dust from agriculture, and the millions of miles driven each year by trucks and cars on Interstate 5 and Highway 99,” Moose said Monday. “Friant Ranch will be contributing to that, but the magnitude is very small.”
Assessing the degree to which emissions specifically related to Friant Ranch will incrementally increase the potential for health effects for people in the immediate area and in the region, Moose added, “will be a very challenging analysis.”
The environmental report estimated that the Friant Ranch development would generate almost 110 tons per year of reactive organic gases, and more than 102 tons per year of nitrogen oxides – pollutants that combine to become ozone when they mix in the atmosphere and are exposed to sunlight – and more than 117 tons of fine dust. Those levels of emissions are from seven to 10 times what are considered significant by the San Joaquin Valley Air Pollution Control District.
Chin and the other justices agreed that the raw numbers “do not give any information to the reader about how much ozone is estimated to be produced as a result.”
Sara Hedgpeth-Harris, a Fresno attorney representing the Sierra Club, Revive the San Joaquin and the League of Women Voters, said the court’s opinion sets a precedent that other consultants who prepare environmental reports for counties must heed in the future.
“The court said, yes, it’s necessary to make the connection” between the volume of pollutants and possible health effects, Hedgpeth-Harris said. “Raw data on how many tons of pollution or parts per million will be emitted is not enough. There has to be some way of explaining what those mean in terms of public health and how people in the area will be impacted by this. … How they do that is something that counties or their consultants will have to determine. But they have to show that they’ve looked at what methodologies are available to compare these emissions and put them in context for what it means to someone living in the area.”