Summary
In Sierra Club v. County of Fresno, supra, 57 Cal.App.5th 979, the Fifth District Court of Appeal interpreted sections 21100 and 21151 and section 15090 of the Guidelines as not authorizing partial certification.
Summary of this case from Scheiber Ranch Props. v. City of LincolnOpinion
F079904
11-24-2020
SIERRA CLUB et al., Plaintiffs and Respondents, v. COUNTY OF FRESNO et al., Defendants; Friant Ranch, L.P., Real Party in Interest and Appellant.
Remy Moose Manley, James G. Moose, Tiffany K. Wright and Laura M. Harris, Sacramento, for Real Party in Interest and Appellant. Chatten-Brown Carstens & Minteer, Douglas P. Carstens, Santa Monica, and Michele Black Plaintiffs and Respondents.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I. and II.A. of the Discussion.
Remy Moose Manley, James G. Moose, Tiffany K. Wright and Laura M. Harris, Sacramento, for Real Party in Interest and Appellant.
Chatten-Brown Carstens & Minteer, Douglas P. Carstens, Santa Monica, and Michele Black Plaintiffs and Respondents.
FRANSON, J. This appeal involves the application of the California Environmental Quality Act (CEQA) to a proposed master-planned community located in Fresno County below Friant Dam and Millerton Lake. The project's developer, real party in interest Friant Ranch, L.P. (Developer), contends the trial court erred in drafting the writ of mandate issued after this court's opinion in Sierra Club v. County of Fresno (2014) 226 Cal.App.4th 704, 172 Cal.Rptr.3d 271 was affirmed in part and reversed in part by the California Supreme Court in Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 241 Cal.Rptr.3d 508, 431 P.3d 1151 ( Sierra Club ). The Supreme Court "remand[ed] the matter for additional proceedings consistent with this opinion." ( Id. at p. 527, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) Developer contends the trial court misinterpreted the combined opinions and abused its discretion by adopting an overly broad remedy that did not comply with section 21168.9. In Developer's view, the court should have issued a narrow writ, partially decertifying the environmental impact report (EIR) and leaving most of the project's approvals in place. We disagree.
Public Resources Code, section 21000 et seq. Undesignated statutory references are to the Public Resources Code.
In the unpublished parts of this opinion, we conclude (1) the trial court correctly interpreted the opinions of the Supreme Court and this court when it drafted the writ of mandate and (2) the writ properly directed the lead agency to vacate its approvals of the project because, for purposes of section 21168.9, those approvals are not severable—that is, are not unaffected by the CEQA violations.
In the published part of this opinion, we provide two alternate grounds for rejecting Developer's contention that the writ should have directed a partial decertification of the EIR. First, the statutes require the public agency to certify "the completion of" the EIR. (§§ 21100, subd. (a), 21151, subd. (a).) We again reject the statutory interpretation that allows for partial certification because an EIR is either completed in compliance with CEQA or it is not so completed. ( LandValue 77, LLC v. Board of Trustees of California State University (2011) 193 Cal.App.4th 675, 682, 122 Cal.Rptr.3d 37 ( LandValue 77 ).) Second, even if CEQA is interpreted to allow for partial certification, it is inappropriate in this case because the CEQA violations affect the adoption of the statement of overriding considerations and, thus, taint the certification of the EIR as a whole. In other words, severance findings under section 21168.9, subdivision (b) are not appropriate in the circumstances of this case.
We therefore affirm the judgment. However, to reduce the potential for further disputes on remand, we direct the trial court to issue an amended writ of mandate with the more detailed instructions set forth in this opinion's disposition.
FACTS AND PROCEEDINGS
Developer proposed locating a master planned community for persons age 55 or older on a 942-acre site in north central Fresno County near the San Joaquin River. The version of the project approved by the County of Fresno (County) has five phases and includes approximately 2,500 residential units, 250,000 square feet of commercial space, and 460 acres dedicated to open space.
In October 2007, County distributed a notice of preparation of a draft EIR for the project. In August 2010, after the draft EIR was released and public comments received, County issued the final EIR. On February 1, 2011, County's board of supervisors approved the project by adopting resolution No. 11-031, which certified the completion of the final EIR and approved general plan amendment No. 511, which updated the Friant Community Plan (a component of the Fresno County General Plan) and authorized the proposed Friant Ranch Specific Plan.
In March 2011, three nonprofit organizations, Sierra Club, League of Women Voters of Fresno, and Revive the San Joaquin (collectively, plaintiffs), filed a petition for peremptory writ of mandate and complaint for declaratory and injunctive relief. Plaintiffs challenged the approval of the project and certification of the completion of the final EIR by alleging violations of CEQA and of the Planning and Zoning Law ( Gov. Code, § 65000, et seq. ) requirement that land use decisions be consistent with the applicable general plan.
In September 2012, after extensive briefing by the parties, the trial court held a hearing on the merits of the petition. In December 2012, the trial court issued its ruling denying plaintiffs' claims and entering judgment in favor of Developer and County. Plaintiffs appealed from the judgment.
Fifth District Review
By November 2013, the parties' appellate briefing was complete. Plaintiffs' opening and reply briefs did not analyze the application of section 21168.9 or the formulation of appellate relief for any of the asserted CEQA violations. Instead, the last sentence of each brief simply requested a "writ of mandamus directing the County ... to set aside, invalidate and void certification of the EIR for the Friant Ranch Project and all related approvals." The joint respondents' brief did not argue this request for relief contradicted the requirements of section 21168.9 or was otherwise inappropriate in scope. Instead, Developer and County argued there were no CEQA violations and asserted this court should affirm the trial court's judgment. In short, in the first appeal, Developer and County placed all their eggs in the no-violation basket and made a tactical decision not to address plaintiffs' requested relief.
In 2013, such a request in a CEQA appeal was not unusual. For example, the request is consistent with the relief this court granted in a 2011 CEQA case after identifying deficiencies in an EIR that had been upheld by the trial court. (Chawanakee Unified School Dist. v. County of Madera (2011) 196 Cal.App.4th 1016, 126 Cal.Rptr.3d 859.) There, we "remanded to the superior court with directions to vacate its order denying the petition for writ of mandate and to enter a new order that grants the petition for writ of mandate and compels County to (1) set aside the certification of the final EIR, (2) set aside the approvals of the project, and (3) take the action necessary to bring the EIR into compliance with CEQA regarding its analysis of" two topics discussed in our opinion. (Id. at p. 1029, 126 Cal.Rptr.3d 859.)
Other examples include Save Round Valley Alliance v. County of Inyo (2007) 157 Cal.App.4th 1437, 70 Cal.Rptr.3d 59, where the Fourth District instructed the trial court to issue a peremptory writ directing the respondents to "vacate their certification of the EIR and their approval of the project." (Id. at p. 1469, 70 Cal.Rptr.3d 59.) In Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 68 Cal.Rptr.2d 367, the Second District instructed the trial court to "issue a peremptory writ of mandate directing the City to vacate its certification of the EIR and approval of the Warner Center Specific Plan." (Id. at p. 1031, 68 Cal.Rptr.2d 367.) More recently, this court directed the trial court to issue a writ of mandate compelling the county "to set aside its certification of the final EIR and its approval of the project." (Association of Irritated Residents v. Kern County Bd. of Supervisors (2017) 17 Cal.App.5th 708, 754, 225 Cal.Rptr.3d 463.) As explained in part II.B. of this opinion, the phrase "certification of the EIR" is shorthand and does not track the statutory text.
Following oral argument, this court issued its opinion in May 2014, which was published as Sierra Club v. County of Fresno, supra , 226 Cal.App.4th 704, 172 Cal.Rptr.3d 271. Like the trial court, we rejected plaintiffs' claims under the Planning and Zoning Law and the claims under CEQA involving wastewater. However, as described below, we concluded the EIR's discussion of issues relating to air quality was inadequate. (See pts. I.B.2. and I.C., post. ) Based on this failure to comply with CEQA, our opinion directed the trial court to issue a writ of mandate compelling County to vacate its approval of the project and not approve the project before preparing a revised EIR that cured the CEQA defects. Due to the parties' one-sentence approach to briefing the question of appellate relief, the opinion did not contain a section analyzing the formulation of that relief. (Cf. King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 895–900, 259 Cal.Rptr.3d 109 [part XII. of our opinion addressed appellate relief and § 21168.9]; Association of Irritated Residents v. Kern County Bd. of Supervisors, supra , 17 Cal.App.5th at p. 754, 225 Cal.Rptr.3d 463 [unpublished part of our opinion addressed formulating appellate relief].)
In June 2014, this court denied plaintiffs' petition for a rehearing. Developer did not file a petition for a rehearing. Thus, at that point in the proceedings, Developer did not contend the relief contained in the disposition failed to comply with CEQA or, alternatively, this court had omitted an analysis of the appropriate relief, the application of section 21168.9, or the severability issue.
Under California Rules of Court, rule 8.500(c)(2), the Supreme Court normally accepts the Court of Appeal's opinion's statement of issues unless the party has called the Court of Appeal's attention to an alleged omission of an issue in a petition for rehearing. (See Barratt American Inc. v. City of Rancho Cucamonga (2005) 37 Cal.4th 685, 700, fn. 3, 37 Cal.Rptr.3d 149, 124 P.3d 719 [Supreme Court refused to address issue not addressed by Court of Appeal where appellant did not file a petition for rehearing to bring the deficiency to the court's attention].)
Supreme Court Review
In July 2014, Developer filed a petition for review with the California Supreme Court, which was granted in October 2014. A significant procedural question addressed by the Supreme Court was the standard of judicial review applicable to CEQA claims challenging the adequacy of an EIR's discussion of a specific topic. ( Sierra Club, supra , 6 Cal.5th at pp. 511–516, 241 Cal.Rptr.3d 508, 431 P.3d 1151 [standard of review].) Developer argued the substantial evidence standard of review applied to an agency's determination that the EIR was adequate.
In December 2018, the Supreme Court issued its decision. ( Sierra Club, supra , 6 Cal.5th 502, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) On the standard of review question, the court rejected Developer's argument. It concluded the ultimate inquiry "is whether the EIR includes enough detail ‘to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.’ [Citations.]" ( Id. at p. 516, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) The court further concluded this "inquiry presents a mixed question of law and fact" that usually is subject to independent review. ( Ibid. ) However, in situations where factual questions predominate, such as choosing among different methods for analyzing an environmental effect, a more deferential standard is warranted. ( Ibid. )
On the merits of the CEQA issues addressed, the Supreme Court stated, "we affirm in part and reverse in part the Court of Appeal's judgment and remand the matter for additional proceedings consistent with this opinion." ( Sierra Club, supra , 6 Cal.5th at p. 527, 241 Cal.Rptr.3d 508, 431 P.3d 1151.) Our interpretation of which parts of our May 2014 opinion were affirmed and which parts were reversed is set forth in an unpublished part of this opinion.
Remittitur
On January 31, 2019, the Supreme Court filed a remittitur stating, "that the attached are copies of the original judgment now final entered in the above-entitled cause on December 24, 2018." The next day, this court issued a remittitur to the trial court that stated:
"This remittitur is issued in the above entitled cause. Also enclosed is a copy of the Supreme Court remittitur, a file-stamped copy of the Supreme Court opinion/order, and a copy of the Fifth Appellate District opinion. [¶] Costs on appeal, whether incurred in proceedings before this court or before the California Supreme Court, are awarded to plaintiffs."
Our remittitur to the trial court trusted that court to interpret accurately what remained of this court's opinion after the partial reversal and decide what terms should be included in the writ of mandate. (See §§ 21003, subd. (f), 21167.1, subd. (a) [expeditious handling of CEQA matters].)
Writ of Mandate
On March 19, 2019, the trial court signed and filed a "JUDGMENT GRANTING PETITION FOR WRIT OF MANDATE" and a two-page "PEREMPTORY WRIT OF MANDATE." The judgment covered the fundamental points without setting forth the specific terms included in the writ. The judgment's three numbered sentences stated (1) the previous judgment was vacated, (2) plaintiffs' "application for writ of mandate, or peremptory writ, [was] granted," and (3) plaintiffs were awarded costs.
The writ of mandate ordered County to promptly "[v]acate or set aside its approval of the Friant Ranch project and not approve the project before preparing a revised EIR that provides an adequate discussion of health and safety problems that will be caused by the rise in the various pollutants resulting from the Project's development." The writ also stated the trial court retained "jurisdiction over the [proceedings] by way of a return to this peremptory writ of mandate until the court has determined [County] has complied with the provisions of the [CEQA] and the opinion of the Court of Appeal as modified by the Opinion of the Supreme Court."
Post-Writ Proceedings
On May 31, 2019, Developer and County jointly filed a motion to vacate and reconsider judgment and writ that cited Code of Civil Procedure section 663, subdivision (1). Developer and County argued (1) public policy militates against vacating all of the project approvals, (2) trial courts must issue narrowly tailored remedies in CEQA cases, and (3) the facts in this case support findings of severability and, thus, the issuance of a limited writ.
On August 29, 2019, after a stipulated four-week continuance and the filing of an opposition and reply, the trial court issued a four-page tentative ruling providing a detailed analysis of its reasons for denying the motion. Among other things, the tentative ruling stated that "the project's operational effects on air quality are not severable from the remainder of the EIR." That same day, Developer filed a notice of appeal to prevent its appeal from being untimely.
On August 30, 2019, the trial court held a hearing on the motion to vacate and reconsider judgment and writ. The law and motion minute order filed after the hearing adopted the tentative ruling as the order of the court and stated no further order was necessary. The effect (if any) of this minute order, which was issued after Developer filed its notice of appeal, is immaterial to the outcome of this appeal. DISCUSSION
I. INTERPRETING THE COMBINED OPINIONS
See footnote *, ante .
II. COMPLIANCE WITH CEQA
A. Vacating Approval of the Project
See footnote *, ante .
B. Certification of EIR and Partial Decertification
Developer contends the trial court should have issued a limited writ of mandate "partially decertifying the EIR." As support, Developer cites a decision stating that "[s]ection 21168.9, subdivision (a) clearly allows a court to order partial decertification of an EIR." ( Center for Biological Diversity v. Department of Fish & Wildlife (2017) 17 Cal.App.5th 1245, 1252, 226 Cal.Rptr.3d 432 ( Center for Biological Diversity III )).
Developer's contention about partial decertification raises a question of statutory interpretation involving sections 21100, 21151 and 21168.9. We begin by setting forth the statutes and Guideline provisions addressing certification.
1. Statutory and Regulatory Text
Section 21100, subdivision (a) provides: "All lead agencies shall prepare ... and certify the completion of [ ] an environmental impact report on any project which they propose to ... approve that may have a significant effect on the environment." (Italics added.) Section 21151, subdivision (a) replaces the word "lead" with "local" and restates the foregoing directive: "All local agencies shall prepare ... and certify the completion of [ ] an environmental impact report on any project that they intend to ... approve which may have a significant effect on the environment." (Italics added.)
Guidelines section 15090, subdivision (a) expands on CEQA's certification provisions by identifying the things an agency must certify. "Prior to approving the project the lead agency shall certify that: [¶] (1) The final EIR has been completed in compliance with CEQA." Also, the lead agency must certify that the final EIR was presented to its decisionmaking body, that body reviewed and considered the information in the final EIR prior to approving the project, and the final EIR reflects the lead agency's independent judgment and analysis. (Guidelines, § 15090, subds. (a)(2), (a)(3).) To summarize, what public agencies are required to "certify" to satisfy the statutes is "the completion of" the EIR. (§§ 21100, subd. (a), 21151, subd. (a).) The Guidelines explain this requirement by stating the agency must certify "[t]he final EIR has been completed in compliance with CEQA." (Guidelines, § 15090, subds. (a)(1), italics added.)
Section 21168.9, subdivision (a) provides that if a court finds "any determination, finding, or decision of a public agency has been made without compliance with [CEQA], the court shall enter an order that includes one or more of the following: [¶] (1) A mandate that the determination, finding, or decision be voided by the public agency, in whole or in part. " (Italics added.) A court's authority to void an agency determination "in part" is the textual basis for the concept of partial decertification.
2. Case Law
In LandValue 77, supra , 193 Cal.App.4th 675, 122 Cal.Rptr.3d 37, this court addressed the meaning of the statutory and regulatory language governing certification and its relationship with section 21168.9. ( Land Value 77, supra , at p. 682, 122 Cal.Rptr.3d 37.) We concluded: "The wording of the guideline and statutes indicates that a final EIR should not be certified if it is not complete or in compliance with CEQA." ( Ibid. ) In LandValue 77 , the project proponent argued that vacating the entire certification was not "necessary" for purposes of section 21168.9, subdivision (b) and certification was an agency decision that could "be voided ‘in part.’ " ( LandValue 77, supra , at p. 682, 122 Cal.Rptr.3d 37.) We disagreed with the proponent's statutory construction and "reject[ed] the idea of partial certification." ( Ibid. ) Under our interpretation, CEQA and the "Guidelines provide for the certification of an EIR when it is complete, and the concept of completeness is not compatible with partial certification. In short, an EIR is either complete or it is not." ( LandValue 77, supra , at p. 682, 122 Cal.Rptr.3d 37.) We supported this interpretation by quoting Justice Robie's treatise:
" ‘In contrast to a case where severance is proper, a situation may arise where an EIR is inadequate in some respects, but not others. This requires the local agency to set aside all project approvals and the certification of the EIR, but the writ of mandate need only require the preparation, circulation and consideration under CEQA of a legally adequate EIR on limited issues.’ (Robie et al., Cal. Civil Practice: Environmental Litigation (2010) § 8:33, p. 61.)" ( Id. at pp. 681–682 .)
The statutory interpretation adopted in LandValue 77 , which holds it is an oxymoron to conclude an agency can partially "certify the completion of" an EIR, has been questioned. For example, in dicta the Fourth District criticized LandValue 77 's rejection of partial certification of an EIR's completeness. ( Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 289, 148 Cal.Rptr.3d 310.) More recently, the Second District addressed the argument that "section 2168.9 prohibits partial decertification of an EIR" and concluded partial decertification was "legally permissible under CEQA." ( Center for Biological Diversity III , 17 Cal.App.5th at p. 1249, 226 Cal.Rptr.3d 432, fn. omitted.) The court stated: "Section 21168.9, subdivision (a) clearly allows a court to order partial decertification of an EIR following a trial, hearing, or remand." ( Id. at p. 1252, 226 Cal.Rptr.3d 432.) The court did not acknowledge or analyze the language in sections 21100 or 21151 stating that what an agency certifies is "the completion of" the EIR. Similarly, the court did not address the language in Guidelines section 15090, subdivision (a) stating the agency shall certify the "EIR has been completed in compliance with CEQA." As a result, the court did not explain how an agency can "certify the completion of" an EIR "in part" when the EIR is not, in fact, completed in compliance with CEQA. Stated from another perspective, the court's interpretation renders the phrase "the completion of" surplusage—that is, useless or devoid of meaning. (See City and County of San Francisco v. Farrell (1982) 32 Cal.3d 47, 54, 184 Cal.Rptr. 713, 648 P.2d 935 [statutory interpretation that renders terms surplusage should be avoided].)
Sections 21100, subdivision (a) and 21151, subdivision (a).
Section 21168.9, subdivision (a)(1).
3. Rejection of Partial Certification
The statutory interpretation adopted in LandValue 77 provides one ground for rejecting Developer's contention that the trial "court should have issued a limited writ ordering the County to rescind certification of the EIR's operational air quality analysis ...." Developer rephrases this contention by asserting the trial court should have issued a writ partially decertifying the EIR. Developer's arguments do not track the statutory language or otherwise acknowledge that what is being certified is "the completion of" the EIR. (§§ 21100, subd. (a), 21151, subd. (a).) As a result, we reject Developer's approach because it ignores the statutory text and contradicts the interpretation of sections 21100, 21151 and 21168.9 set forth in LandValue 77 .
4. Partial Decertification is Not Available in This Case
Alternatively, the conflicting statutory interpretations in LandValue 77 and Center for Biological Diversity III regarding partial certification can be considered irrelevant to the present appeal by accepting the way the Second District distinguished LandValue 77 . The Second District concluded LandValue 77 "does not prohibit partially setting aside an EIR, so long as a court makes severance findings under section 21168.9, subdivision (b)." ( Center for Biological Diversity III , 17 Cal.App.5th at p. 1254, 226 Cal.Rptr.3d 432.) The court supported this distinction by noting the rule quoted from Justice Robie's treatise was " ‘ "[i]n contrast to a case where severance is proper ...." ’ " ( Ibid. ) In an unpublished portion of this opinion, we have determined that severance is not proper. Consequently, the Second District's statutory interpretation stating partial decertification is allowed where severance findings have been made does not apply to this case. (See Center for Biological Diversity III, supra , at p. 1254, 226 Cal.Rptr.3d 432.) As a result, our conclusion that partial decertification is inappropriate in this case does not contradict the holding in Center for Biological Diversity III because the circumstances of this case are distinguishable.
The court's phrase "partially setting aside an EIR" appears to be shorthand for "partially setting aside the [agency's decision to certify the completion of ] an EIR." (See §§ 21100, subd. (a), 21151, subd. (a).) Language similar to this shorthand phrase appears in the dispositions described in footnote 2, ante.
5. Application of Statutory Text
The trial court's writ of mandate, like the disposition in our May 2014 opinion, does not mention the board of supervisor's decision to certify the completion of the EIR. Instead, it directs the County to "not approve the project before preparing a revised EIR ...." Based on alternate conclusions that (1) partial decertification of the completion of the EIR is not authorized by CEQA or (2) partial decertification of the completion of the EIR is authorized by CEQA only if severance findings allowed a portion of the project approvals to remain in place, we further conclude the writ of mandate did not violate CEQA by failing to include a provision directing County to partially decertify the completion of the EIR.
This conclusion comports with the analysis adopted in Ione Valley Land, Air, & Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165, 244 Cal.Rptr.3d 791 ( Ione Valley ). In that case, the CEQA plaintiff argued that "section 21168.9 allows for partial decertification of an EIR, and, therefore, the trial court's order directing full decertification of the EIR allowed new challenges to parts of the EIR that had already been upheld by the trial court." ( Ione Valley, supra , at p. 172, 244 Cal.Rptr.3d 791.) The court rejected this argument about new challenges "because whether the EIR has been decertified does not alter the fact that the sufficiency of a component of the EIR has been litigated and resolved." ( Ibid. )
In this case, the sufficiency and CEQA compliance of most components of the EIR have been litigated and resolved. Based on the principle set forth in Ione Valley , new challenges to the parts of the EIR that have been upheld are not allowed in proceedings on remand. Thus, we conclude an order of partial decertification is not necessary to protect Developer from relitigating the CEQA compliance of parts of the EIR not affected by the errors relating to air quality impacts. Instead, Developer is protected by res judicata, collateral estoppel and the requirement for the exhaustion of administrative remedies. ( Ione Valley, supra , 33 Cal.App.5th at p. 172, 244 Cal.Rptr.3d 791.) In other words, the arguments presented in this appeal have not convinced us that these protections are inadequate. It follows that we do not reach the issue of whether the concept of partial certification is useful to ameliorate any inadequacies in the protection provided by the principles identified in Ione Valley .
Finally, issues involving the application of section 21166 (supplemental and subsequent EIR's) or Guidelines section 15162 (subsequent EIR's) were not represented in this appeal. Therefore, this opinion expresses no views on how those provisions should be applied in the further proceedings after remand.
DISPOSITION
The judgment granting petition for writ of mandate is affirmed. Plaintiffs shall recover their costs on appeal.
For purposes of clarity in subsequent proceedings, the superior court is directed to promptly issue an amended peremptory writ compelling County to (1) vacate its decision to approve the Friant Ranch project, which includes the approval of General Plan Amendment No. 511, (2) void its decision to certify the completion of the final EIR, and (3) not approve the project before preparing a revised EIR, circulating the revisions to the EIR, and certifying the completion of the revised EIR. The revised EIR, in accordance with the decision of the California Supreme Court, shall provide an adequate discussion of health and safety problems that will be caused by the rise in various air pollutants resulting from the project's development, which analysis shall reasonably inform the public and the decisionmaking body how anticipated air quality effects will adversely affect human health or, alternatively, shall adequately explain why it is not scientifically feasible at the time of drafting to provide such an analysis. In addition, the revised EIR must either explain the bare conclusion that "mitigation measures will substantially reduce air quality impacts related to human activity within the entire Project area" or delete the word "substantially."
The amended peremptory writ of mandate shall state the superior court retains jurisdiction over the proceedings by way of a return to the writ. The superior court may, in its discretion, require County to file an initial return explaining the action it intends to take to satisfy the writ's requirements.
WE CONCUR:
HILL, P.J.
LEVY, J.