Inyo County EIR Rejected

A state appeals court in Riverside has blocked a plan to create a 27-parcel housing development near the base of Mount Whitney. The three judge panel ruled that the EIR failed to adequately evaluate a possible land swap that could lessen the environmental impact of the project.

The ruling illustrates one possible path the UC case now in court might take.

The court acknowledged that the alternate site might have flaws that would make it unsuitable for the project, but said the EIR "included only the barest of facts regarding the (alternate) parcel, vague and unsupported conclusions about aesthetics, views and economic objectives, and no independent analysis whatsoever of relevant considerations."

Environmental impact reports are required to to consider potentially less-damaging alternatives to a proposed project.

The project developer had rejected the alternate site saying that it would take years and an act of Congress to complete the land swap. The court nevertheless said the EIR must contain adequate descriptions of the alternative whether the site was feasible or not.

The court ordered Inyo County to reverse its approval of the project and to "avoid taking any steps to reauthorize it before a 'legally adequate' environmental evaluation of the land exchange had been prepared."

The court made no ruling about where the project should be sited, or whether one site was better than the other; it ruled only that the EIR was inadequate.

Environmentalists had also challenged the project on the grounds that the EIR failed to adequately address the impact on threatened species and the area's majestic views. The court rejected those arguments.

The City of Berkeley et. al. have alleged that UC did not adequately describe alternate sites in their EIR. UC attorneys insist they have provided adequate descriptions. The City has further argued that the EIR purports to cover 7 different projects in vicinity of the High Performance Center - and that some of those 7 are barely described in the EIR at all.

In response, UC has said that the EIR at issue is "tiered" off the already certified and approved Long Range Development Plan (LRDP 2020), that it therefore incorporates all that document's provisions and descriptions, and that the combined EIRs adequately describe the projects.

They further argued that if they had waited to write more complete EIRs on each of the several proposed projects in the area as they came to maturity, UC would have been criticized (and probably sued) for breaking the project down into small pieces so as to minimize the apparent environmental impact of each, "piecemealing" the larger project. UC also said in oral arguments that they would provide additional EIR documentation for some of the later projects if appropriate & necessary.

This appears to present the judge with a need to decide whether a possibly incomplete EIR covering many projects in the area is preferable to a series of EIRs covering each as they mature.

Commentary:

In several articles on the case published here I have frequently collapsed many of these kinds of arguments into a single phrase - saying for example that "the City is alleging that UC's EIR is inadequate". Saying it that way makes the issue sound simple, but in fact the term encompasses literally hundreds of issues like the one ruled upon in Riverside. This is why I have also frequently said that a ruling that UC's EIR was inadequate in several particulars would not surprise me at all - if only because the case is so complex and embraces so many issues.

On the other hand, a partially adverse ruling on the EIR might not be all that damaging, because as soon as one learns exactly what parts of the EIR must be improved, that can be done and the project can proceed. In the Riverside case above, the developer is already hard at work improving the description of the alternate site and when that is done he can proceed with the project at his intended site.

Information for this report came from an article published in the December 21st edition of the San Francisco Chronicle that was written by Steve Lawrence of the Associated Press.

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