In the published portions of Farmland Protection Alliance v. County of Yolo (2021) 71 Cal.App.5th 300, the Third District Court of Appeal held that a limited environmental impact report (“EIR”) is not an appropriate remedy where a court finds that substantial evidence supports a fair argument that the project might have a significant environmental impact.

Background

The Yolo County Board of Supervisors adopted a mitigated negative declaration and issued a conditional use permit for a bed and breakfast and commercial event facility on agriculturally-zoned property. Project opponents filed a lawsuit alleging, among other claims, that the MND was inadequate under CEQA. The trial court rejected most of petitioners’ claims but found substantial evidence supported a fair argument that the project may have a significant impact on three special-status species, and as the remedy, (1) ordered the County to prepare a limited EIR addressing only the project’s impacts on the three species, and (2) allowed the project to continue operations pending further environmental review.

Petitioners appealed the trial court’s decision, arguing that the court violated CEQA by ordering preparation of a limited EIR after its finding of potentially significant impacts, and allowing the project to continue operating while further environmental review was pending.

The Court of Appeal’s Decision

The Court of Appeal held that Public Resources Code section 21168.9 does not authorize a court to split a project’s environmental review across two types of documents, such as a negative declaration or mitigated negative declaration and an EIR. The court noted that while section 21168.9 is designed to provide a trial court with flexibility in crafting remedies to ensure compliance with CEQA, it does not authorize a court to circumvent CEQA’s mandatory provisions. According to the court, CEQA requires an agency to prepare a full EIR when substantial evidence supports a fair argument that any aspect of the project may have a significant effect on the environment. The Court of Appeal therefore found that the trial court erred by ordering preparation of a limited EIR after finding the fair argument test had been met as to impacts to the three species.

The Court of Appeal declined to consider petitioners’ argument that the trial court erred in allowing the project to operate while the limited EIR was being prepared. While the appeal was pending, the County filed a return to the peremptory writ of mandate stating the limited EIR ordered by the trial court had been certified.  As a result, the Court of Appeal determined the portion of the judgment allowing the project to continue to operate no longer had any effect, and therefore, the issue was moot.