[author: Arthur F. Coon]

In a recent published decision addressing cumulative impacts, deferred mitigation, and water supply analysis issues, the Fourth District Court of Appeal’s most significant CEQA pronouncements may have been those addressing permissible remedies under Public Resources Code § 21168.9. Specifically, in Preserve Wild Santee v. City of Santee (4th Dist. 2012) 210 Cal.App.4th 260, the Court of Appeal made the following points:

  • When a “court finds an agency’s determination, finding, or decision does not comply with CEQA,” § 21168.9(a) requires it to issue a writ of mandate “containing one or more of three specified mandates.”
  • These three permissible remedial mandates are to order the agency to: (1) “void the determination, finding, or decision in whole or in part”; (2) “suspend specific project activities related to the [defective] determination, finding, or decision that could adversely affect the physical environment until the agency” takes the action needed to comply with CEQA; and/or (3) “take the specific action necessary for the determination, finding, or decision to comply with CEQA.”
  • In deciding on remedies under the statute, the trial court relies on equitable principles, may not order an agency to exercise its discretion in any particular way, “and may only include the mandates necessary to achieve compliance with CEQA.”
  • Under § 21168.9(b), “the trial court’s order must be limited to the portion of a determination, finding, or decision or the specific project activities that do not comply with CEQA if the trial court finds that (1) the portion or specific project activities are severable, (2) severance will not prejudice complete and full compliance with CEQA, and (3) the trial court has not found the remainder of the project to be in noncompliance with CEQA.”
  • Applying a reasonable, common sense construction to § 21168.9’s plain language, it does not require (as plaintiffs asserted) “that a trial court must mandate a public agency decertify the EIR and void all related project approvals in every instance where the court finds an EIR violates CEQA.” Such a “rigid construction,” according to the Court, “directly conflicts” with both § 21168.9(a)(1)’s “in part” language, “which specifically allows a Court to direct its mandates to parts of determinations, findings or decisions,” and § 21168.9(b)’s language limiting mandates to “only those necessary to achieve CEQA compliance and, if the court makes specified findings, to only ‘that portion of a determination, finding or decision’ violating CEQA.”
  • In finding, as a matter of law, that a trial court has “authority under section 21168.9 to issue a limited writ[,]” the Court of Appeal criticized and rejected as inapposite and non-authoritative the Fifth District’s contrary conclusion in LandValue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675, 681-682; it observed the Land Value 77 opinion contained a perfunctory analysis that the statute’s “in part” language did not apply to EIR certification decisions and relied heavily on a legal treatise that failed to discuss or even acknowledge that key language. The Fifth District’s earlier decision contained statements of great concern to the CEQA defense bar, public agencies and project proponents to the effect that any EIR deficiency – no matter what its nature or magnitude – requires a mandate ordering a complete decertification of the EIR and set-aside of all project approvals. (See Land Value 77, LLC, supra, 193 Cal.App.4th at 682 [supporting its conclusion by tersely rejecting “idea of partial certification” and stating “an EIR is either complete or it is not.”].)

The Fourth District’s straightforward and well-reasoned analysis of Public Resources Code § 21168.9 brings a welcome breath of fresh air and common sense to CEQA remedies jurisprudence, and hopefully will be followed as authoritative precedent by all California courts.