Can CEQA Mitigation Measures Be Changed After Project Approval?

Last month, the Supreme Court, in the case Sierra Club v. County of Fresno (2018) 6 Cal. 5th 502, clarified that an Environmental Impact Report (EIR) prepared pursuant to the California Environmental Quality Act (CEQA) must disclose and inform the public of the human health effects associated with a project’s impacts to air quality and emissions. The court wasn’t swayed by the County’s argument made during legal briefing (not in the EIR) that there isn’t enough scientific modeling available at this time to explain the connections between emissions and human health. However, the court seemed to leave the door open as to whether an EIR could be adequate if it sufficiently discussed and disclosed the impacts it knows of and then explained the lack of modeling necessary to fully disclose all the related impacts to the public.  

BUT WHAT STRUCK ME MOST IN THIS CASE, WAS THE COURT’S LENIENCY IN ALLOWING A SUBSTITUTION CLAUSE IN THE EIR’S MITIGATION MEASURES.

IN SHORT, THE COURT ESSENTIALLY HELD THAT IT WAS OKAY, UNDER CERTAIN CIRCUMSTANCES, TO SUBSTITUTE CEQA MITIGATION MEASURES DOWN THE ROAD WITHOUT FURTHER PUBLIC REVIEW OR DISCLOSURE.  

The EIR’s Mitigation Monitoring Program (MMP) included a substitution clause that allowed the public agency to “substitute different air pollution control measures for individual projects, that are equally effective or superior to those proposed [in the EIR], as new technology and/or other feasible measures become available [during] build-out within the [Project].” An MMP, also known as a Mitigation Monitoring, and Reporting Program (MMRP) is a document that sets forth the mitigation measures, how it will be implemented, and the agency responsible for monitoring and enforcing the mitigation measure.  In some ways, this is one of the more important pieces of an EIR that is often overlooked.  Usually, the mitigation measures are quite concrete.  But in this case, the County sought to provide some leeway to help implement the mitigation measures down the line.    

The court held that “allowing future substitutions for equalor more efficient technology to mitigate a project's acknowledged significant effects promotes CEQA's goal of environmental protection and is not an impermissible deferral of mitigation or an abuse of discretion. It is simply a recognition that substitutions of adopted mitigation measures may be implemented to further minimize the Project's environmental impacts.”   This provides important flexibility for public agencies to impose different mitigation measures as conditions and science change down the line to achieve the same goals.  However, I can’t help but wonder how this will play out moving forward as agencies implement these substitution clauses in their MMPs and how they will deal with push-back from the project proponent implement substituted mitigation measures that may or may not be as effective depending on who is doing the study.

The details of the case can be found in the case, Sierra Club v. County of Fresno (2018) 6 Cal. 5th 502.  

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By Stephanie Smith
Stephanie is a CEQA and Land Use Attorney with Grid Legal
https://www.gridlegal.com