From the Spring 2000 AEP Environmental Monitor . . .
Winning in CEQA Litigation: Formulating, Attacking, and Defending the Project Description
By Charles M. Gale
In matters involving the California Environmental quality Act ("CEQA"),1 the importance of the project description cannot be overstated: ‘An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR [environmental impact report] ."2 Specifically, an accurate view of the project 3 serves as the foundation for public decisionmakers and affected outsiders to intelligently balance the proposal’s benefits against its environmental costs, consider mitigation measures, assess the advantage of terminating the proposal, and balance alternatives.
But the seemingly simple task of describing a project often proves difficult in practice. Therefore, this article examines several facets of project descriptions to assist CEQA litigants with this critical threshold issue.
OVERVIEW OF CEQA
CEQA and its implementing regulations (the "Guidelines") codify the duty of state and local agencies to evaluate a project’s environmental impacts. The public agency, therefore, must first determine whether the proposed action is a "project." A "project" is an activity which (a) may cause either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment, and (b) is any of the following:
(i) An activity directly undertaken by any public agency.
(ii) An activity undertaken by a person which is supported, in whole or in part, through contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies.
(iii) An activity that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies.6
"Project" encompasses a wide spectrum of activities, ranging from the adoption of a general plan that, by its nature, is tentative and subject to change, to activities with a more immediate impact such as the issuance of a conditional use permit for a site-specific development proposal.7 "Project" refers to the proposed activity, which may be subject to several discretionary approvals by governmental agencies;8 it does not mean each separate governmental approval.
An agency normally will take up to three separate steps in deciding which environmental review document to prepare for a project.9 In the first step, the agency examines the project to determine whether CEQA applies. Generally, CEQA applies to a discretionary project. A discretionary project is one where the agency can use its judgment in deciding whether and how the project is carried out.10 If the project is exempt,11 the agency’s environmental review process terminates with the filing of a notice of exemption.12
If the project is not exempt, the agency takes the second step, an initial study,13 to determine whether the project may have a "significant effect on the environment."14 A "significant effect on the environment" means a substantial, or potentially substantial, adverse change in any of the physical conditions within the area affected by the project including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance.15 If the initial study unearths no substantial evidence that the project may have a significant environmental effect, the agency prepares a negative declaration.16
If the initial study reveals substantial evidence that the project may have a significant environmental effect, the agency must prepare an EIR.17 An EIR is a detailed report setting forth, among other things, the significant environmental effects caused by the proposed project, any significant environmental effects which cannot be avoided if the project is implemented, cumulative impacts, mitigation measures proposed to minimize the significant environmental effects, and alternatives to the proposed project.i8 The final EIR consists of the draft EIR;’9 comments (criticizing, identifying perceived shortcomings and errors, and correcting such errors in the draft EJR); the lead agency’s responses to significant environmental issues raised during the review and consultation process; and any other information the lead agency deems necessary for the EIR to sufficiently discuss the environmental issues presented by the proposed project.20
To accommodate the diversity of projects, the Guidelines describe several type of EIRs, which maybe tailored to different situations.21 The most common is the project EJR, which examines the environmental impacts of a specific development project.22 A quite different type is the program EIR, which "may be prepared on a series of actions that can be characterized as one large project and are related either (1) geographically, (2) as logical parts in the chain of contemplated actions, (3) in connection with issuance of rules, regulations, plans, or other general criteria to govern the conduct of a continuing program, or (4) as individual activities carried Out under the same or authorizing statutory or regulatory authority and having generally similar environmental effects which can be mitigated in similar ways."23 Examples of other types of EIRs include a general plan EIR, a staged EIR, and a master EIR.24
EIRs also can be "tiered." "Tiering" means the coverage of general matters and environmental effects in an EJR prepared for a policy, plan, program, or ordinance, followed by narrower or site-specific EIRs which incorporate by reference the discussion in any prior EIRs and concentrate on the environmental effects which (a) are capable of being mitigated, or (b) were not analyzed as significant effects on the environment in the prior EIRs.25
In all cases, the purpose of an EIR is to inform governmental decisionmakers and the public of the environmental consequences of a given project, to allow the political process to integrate environmental concerns with the analysis and evaluation of the project and thus, intelligently arrive at a decision that considers environmental issues.2~ A public agency may disapprove a project if necessary to avoid one or more significant adverse environmental effects the project would cause if it were approved as proposed.27 If the agency disapproves a project, the CEQA process terminates.28
No public agency shall approve or carry out a project for which an EIR identifies one or more significant adverse effects unless the agency makes at least one of the following findings: (1) changes or alterations have been required in, or incorporated into, the project which mitigate or avoid or substantially lessen the project’s significant adverse environmental effects; (ii) those mitigating changes or alterations are within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency; or (iii) specifically identified economic, legal, social, technological, or other considerations make infeasible the mitigation measures or alternatives identified in the environmental impact report.29 A statement of facts must support each finding.30 The duty to prevent or minimize environmental damage is implemented through the foregoing findings,31 which ensure that the decision-making agency actually considers alternatives and mitigation measures.32
The public agency also may approve a project even though, after all feasible mitigation measures have been imposed, the project still will cause a significant adverse environmental effect, if (i) the agency concludes there is no feasible way to further lessen the significant adverse effect and (ii) the remaining significant adverse environmental effect is "acceptable" in light of the project’s expected benefits.33 The reasons given by an agency that a significant adverse environmental effect is "acceptable’ constitute a statement of overriding considerations, which is intended to demonstrate the balance struck by the agency in weighing the project’s benefits against its unavoidable environmental risks.34
PROJECT DESCRIPTION ISSUES
An EIR must contain a "project description" that includes (a) a detailed map showing the precise location and boundaries of the proposed project and a regional map showing the location of the project, (b) a statement of the objectives sought by the proposed project, (c) a general description of the project’s technical, economic, and environmental characteristics, and (d) a statement briefly describing the intended uses of the EJR.35 In contrast, a negative declaration circulated for public review shall include a brief description of the project and the location of the project, preferably shown on a map.36 Likewise, a notice of exemption, if filed, shall include a brief description of the project.37 In determining whether an activity is subject to CEQA, the agency as part of its preliminary review process will review a description of a proposed activity, which often will read like a description of a project. If the activity is subject to CEQA, the description of the proposed activity probably will become the formal project description.38 Thus, project description issues are inherently part of the CEQA review process.
REASONS PROJECT DESCRIPTIONS MAY BE INADEQUATE
A project description may be deemed inadequate for a variety of reasons, including inaccuracy, insufficient detail, or incompleteness. These deficiencies often are interrelated, but it is still useful to isolate the different aspects of project descriptions.
General Versus Specific Description
As noted above, a project description in an EIR must contain a general description of the project’s technical, economic, and environmental characteristics.3~ This requirement is consistent with making an EIR a user-friendly document, and fosters the principle that EIRs should be prepared early enough in the planning stages to enable environmental concerns to influence the project’s design.40 After all, a general description of a project element can be provided earlier in the process than a detailed engineering plan and is more amenable to modification to reflect environmental concerns.
The degree of specificity required depends on the type of project. On the one hand, there must be sufficient information to understand the environmental impacts of the proposed project.41 On the other hand, the EIR must achieve a balance between technical accuracy and public understanding.42
This balancing test was applied in Dry Creek Citizens Coalition v. County of Tulare,43 where the project opponents contended that the EIR’s "conceptual" description of the channel and instream structures failed to provide the "detailed information" which CEQA requires." The court ruled, though, that the project opponents had not demonstrated that the description of the water diversion elements narrowed the scope of environmental review or minimized environmental impacts. Further, the project opponents did not explain how more detailed engineering drawings would allow the public and decisionmakers to "fully understand the environmental consequences of the entire project."45 This ruling underscores the case-by-case nature of the specificity requirement in an EIR and provides support for the use in many cases of a "conceptual" description, to be followed by more detailed engineering drawings after approval.
Accurate, Stable, and Finite Project Description
The seminal case on the importance of an accurate, stable, and finite project description is County of Inyo v. City of Los Angeles." In County of Inyo, the court found a CEQA violation because the "project concept expand[ed] and contract[ed] from place to place within the EIR."~7 The EIR initially defined the project as pumping additional groundwater for previously unanticipated uses of lands owned by the City of Los Angeles in Inyo and Mono Counties. This "truncated project description" shifted to a "reappraisal" of the rate of water export as one part of the larger operation of the Los Angeles Aqueduct System, followed by a third concept called the "recommended project."48 The "recommended project" included not only increased pumping of groundwater, but also a vastly enlarged project concept with numerous technical features: concrete-lining of two canals, exportation of additional water from the Owens Valley for the purpose of recharging the San Fernando groundwater basin in Los Angeles County, adoption of a water conservation program, rearrangement of Owens Valley reservoir operations, and reduction of stockwater supplied within the Owens River basin. The County of Inyo court ruled that "[t]he incessant shifts among different project descriptions . . . vitiate[s] the City’s EIR process as a vehicle for intelligent public participation."49 The court therefore determined that the City of Los Angeles had violated CEQA and ruled that the writ of mandate issued as a result of the court of appeal’s decision four years earlier was not discharged, but remained in force. Interim restraints upon the rate of pumping in Owens Valley were ordered to remain in place pending compliance with CEQA by the City of Los Angeles.
The lesson to be learned from County of Inyo is that the environmental document must correctly and consistently describe a single project. While this principle seems simple enough, its application and logical extension requires (1) the preparer of an environmental document to understand the project being proposed, (2) common instructions to the various experts who are preparing particular sections of an environmental document, and (3) no changes to the project during the environmental review process.50
A more recent example of a vague project description is presented in City of Santee v. County of San Diego.s1 There, the final EIR defined the project as "the construction and operation of an interim men’s detention facility and the expansion of the women’s facility" at Las Colinas.52 No specific time limit, however, was specified for this "interim" period in the draft EIR. The traffic analysis attached to the final EIR measured impacts for three years even though in response to comments on the draft EIR, the County stated a defined time limit of seven years. Further, in the face of this seven-year time limit, at a hearing, the County Board of Supervisors announced its intent to close the male expansion facility only at such unknown time as certain additional facilities were completed and available.53 The City of Santee court determined that "it is reasonably foreseeable that the project will continue for a longer term than seven years," so the future uses should have been discussed.54 Because there was not an "an accurate, stable and finite project description," the court held the EIR inadequate.55
While an accurate, stable, and finite project description is very important, "the test to be applied is not one demanding of absolute perfection but whether an objective, good faith effort to so comply is demonstrated."56 For example, in Dusek v. Anaheim Redevelopment Agencv,57 the EJR described the project as the acquisition of the subject parcel, demolition of the improvements on the parcel including the Pickwick Hotel, and construction of up to 350,000 square feet of marketable space. The redevelopment agency certified the EIR, but approved only the acquisition of the parcel and the demolition of the improvements, including the Pickwick Hotel; the redevelopment agency did not approve the redevelopment of the entire parcel.58 In upholding the certification of the EJR, the Dusek court distinguished County of Inyo, because the project description in the Dusek EIR was much broader than the project actually approved. The Dusek court emphasized that retention or demolition of the Pickwick Hotel was the focal point of the EIR and the adverse environmental impact of demolition was expressly recognized and considered.59 The Dusek court concluded, "the fundamental objectives of CEQA have thus been satisfied."60
Satisfying the fundamental objectives of CEQA was also at issue in Kings County Farm Bureau v. City of Hanford.61 There, opponents of the project contended that the EIR should have analyzed the impacts of the proposed cogeneration plant beyond the twenty-year period of the ‘power sales agreement" between GWF Power Systems Company, Inc. ("GWF") and Pacific Gas and Electric Company ("PG&E"). Those opponents cited (i) the health risk assessment in the EIR which assumed a thirty-year operational life, and (ii) the twenty-five-year term of the mitigation agreement between GWF and the Kings County Water District.62 Nonetheless, the Kings County court concluded from its review of the record that "there is no credible and substantial evidence GWF plans to operate the project beyond the 20-year life of the PG&E contract."63 Hence, even though the Kings County documentation used different time periods for its analysis of project impacts and mitigation, the Kings County court implicitly concluded that the references to thirty years (for the health risk assessment) and twenty-five years (for the mitigation agreement) were harmless in light of the facts of that particular case. The project proponent would have had an even more defensible document, however, if the time periods were consistent.
Segmentation
CEQA mandates ‘that environmental considerations do not become submerged by chopping a large project into many little ones—each with a minimal potential impact on the environment—which cumulatively may have disastrous consequences."64 This issue of improper division of a project may be the most litigated issue regarding the adequacy of a project description and usually involves one of two variations: In the first variation, the agency determines that the activities involve two or more projects which warrant separate review. In the second, the agency recognizes that certain activities require review, but a project opponent asserts that additional activities must also be included in the project description. Under either variation, the issue is the same. Is the project description complete?
In Citizens Ass’n for Sensible Development of Bishop Area v. County of Inyo,65 the court determined that the project should have been described as a shopping center development for which government action consisting of general plan amendments, zone reclassification, tentative tract map approval, and road abandonment was required. Instead, the project was improperly described as "two projects": (1) the general plan amendments and zone reclassification and (2) the tentative tract map approval and road abandonment. Each "project" was submitted to a separate environmental review for which separate negative declarations were approved by the county at separate meetings three months apart.66 By improperly treating the single project as two projects, the county at each of the two meetings disregarded the impacts of that portion of the project not scheduled for the applicable meeting. Thus, the complete impacts of the single project were inappropriately minimized.
More recent cases involving the "fallacy of division" include San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus67 and Santiago County Water District v. County of Orange.68 In San Joaquin Raptor, a sewer expansion was recognized by the Draft EIR as necessary to the project, yet was excluded from the description of the development project and its effects ignored in the Final EIR, under the improper assumption that the sewer expansion could be environmentally assessed later.69 In Santiago County Water District, the EIR did not contain a description of the facilities that would have to be constructed to deliver water to the mining operation. Because the construction of additional water delivery facilities would be one of the significant effects of the project, a description of the necessary construction was required if the EIR was to serve its informational purpose.70
A typical counter to a contention that the EIR should expand the project description to cover other activities is that CEQA requires analysis of the proposed project, not some other project. While this defense is unassailable in the abstract, it may falter in practice. For instance, in the previously discussed San Joaquin Raptor case, the court ruled that the sewer expansion was a "crucial element" without which the proposed project could not go forward.71
The issue of whether a facility or activity is a ‘crucial element" was also analyzed in National Parks and Conservation Ass’n v. County of Riverside.72 In National Parks, the county approved a landfill project. A project opponent contended that certain prospective facilities which would process trash to be dumped in the landfill material recovery facilities (‘MRFs") needed to be discussed in detail in the landfill’s EIR. The National Parks court ruled, however, that MRFs were not "crucial elements elements without which the proposed projects cannot go forward" because "the design of the landfill treats them as separate projects, not elements of this project."73 The National Parks court also found support in the Integrated Waste Management Act of 1989 for the conclusion that the processing stage is a separate project from the landfill itself so environmental review of such processing facilities may be properly deferred.74
The principle that the EIR should analyze the proposed project and not some other project was summed up in Village Laguna of Laguna Beach v. Board of Supervisors.75 In Village Laguna of Laguna Beach, the project opponents faulted the EIR for making assumptions about the proposed project but failing to consider the environmental effects if any of those assumptions proved erroneous. The Village Laguna court rebuffed that challenge ruling that the "assumptions" are integral portions of the proposed project. If they fail to become reality there is a different project.76
In some cases, there is simply more than one project. In one such case, Leonoff v. Monterey County Board of Supervisors,77 the applicant obtained a use permit for a contractor’s service center. Two weeks after obtaining this use permit, the applicant’s neighbor obtained approval of a mini-storage complex. The initial study disclosed that the contractor’s service center was to share a driveway and drainage easement with the proposed mini-storage complex. The Leonoff court nevertheless held that there were two separate projects and the county properly discussed the few features they shared in electing to environmentally assess them separately.78
In summary, at every stage of the CEQA process, persons involved in a project’s environmental review must carefully analyze whether any proposed project description leaves out a ‘crucial element." If so, the project description must be amended to facilitate an adequate environmental analysis. Further, as will be discussed under Cumulative Impacts, below, there is an important interplay between a project description and the identification and evaluation of cumulative environmental impacts associated with the proposed activities.
Foreseeable Future Development
In Laurel Heights Improvement Association v. Regents of University of California,79 the California Supreme Court held that an EIR must include an analysis of the environmental effects of future expansion or other action if (1) it is a reasonably foreseeable consequence of the initial project and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects.80 Absent either of these circumstances, the future expansion need not be considered in the EIR for the proposed project. The Laurel Heights court noted that this standard was consistent with not "chopping a large project into many little ones" and addressing cumulative impacts, while avoiding premature analysis.8i
This issue of future development often arises where an agency is reviewing a planning document. For example in Rio Vista Farm Bureau Center v. County of Solano,82 the county adopted a Hazardous Waste Management Plan ("Plan"). The project opponents asserted that the EIR failed to provide a description of potential future facilities. The Rio Vista court, however, determined that the Plan merely served as a hazardous waste management assessment and overview, with any separate future projects to be accompanied by additional EIRs, when identified.83
Rio Vista was distinguished in Stanislaus National Heritage Project v. County of Stanislaus,84 where the county certified an EIR for a proposed specific plan and canceled a portion of a Williamson Act contract so the project could be developed. The county relied on Rio Vista, but the Stanislaus court found that reliance unjustified. The project here was not merely a general policy document like in Rio Vista; raffle; it designated specific sites for future development and described what structures constituted the future development.85
The lack of meaningful information regarding future development also translates to limitations on the information even the best prepared environmental document can provide and therefore shapes the project description. In Topanga Beach Renters Association v. Department of General Services,86 the State of California sought to demolish houses located on the state beach. The state conceded that someday the beach might be developed beyond clearance of structures and restoration of the beach to its natural state and that such future development may significantly affect the environment; however, there was no evidence that future development of the beach "is anything more than an optimistic gleam in a state planner’s eye."67 The Topanga Beach court therefore saw no purpose in requiring an EJR that could only speculate on future environmental consequences,88 so this hypothetical future development was properly excluded from the project description.
In other cases, while a general discussion of subsequent phases of a project may be workable, an in-depth discussion may not be. For example, in No Oil. Inc. v. City of Los Angeles,89 Occidental Petroleum sought to drill exploration wells. The project opponents contended that the EIR failed to filly analyze the location, extent, and environmental impacts of pipeline routes. The record established, however, that until the quantity and quality of the oil extracted during the exploration phase is analyzed, Occidental Petroleum would not know whether it was financially desirable to proceed with the project, where the oil would be transported, or the specifications of the pipeline to be constructed. Therefore, the No Oil court found the EIR properly deferred an in-depth consideration of the environmental effects of each proposed pipeline route until an application for approval of a pipeline is presented to the Board of Transportation.90 Nevertheless, project proponents have not always had their way in deferring environmental analysis. Some courts have found that the environmental documentation was required to state at least in general terms the effect of certain future impacts.91
In any event, the amount of discussion of foreseeable future development depends on the amount of information that is available at the time of the environmental evaluation.
Modification
A project proponent sometimes attempts to have a later action considered as a modification of an earlier project approval, in an effort to subject the modification to a more abbreviated environmental review. This is a critical determination, since modifications are governed by Public Resources Code section 21166, which prohibits a lead agency from requiring a subsequent EIR for a certified project unless specific events occur.92
This issue was raised in Sierra Club v. County of Sonoma,93 where the county certified and adopted an Aggregate Resources Management Plan (‘ARM Plan") consisting of a program EIR on ground and hardrock mining in the county and a specific management plan for regulating that mining. Eight years later, a company applied to amend the ARIVI Plan by transferring a mineral designation from one 145-acre parcel to another 145-acre parcel which was designated for agriculture and sought a use permit to mine fifty of those acres.94 The company argued that the proposed activity was not a separate project, but was instead a part of a minor modification to the single large project already studied in the ARM Plan. The Sierra Club court rejected that thesis 2mphasizing that the company sought permission to engage in terrace fining on land which was specifically designated in the ARM Plan as in agricultural resource.95
Another CEQA case addressing whether the action is a separate project for purposes of Public Resources Code section 21166 is Gentry v. City of Murrieta.96 The Gentry case was decided on an estoppel basis rather than the merits of a ‘modification" versus ‘separate project" analysis. There, the City of Murrieta arguably could have treated the action as a modification to the Community Plan, but never purported to consider whether to require a subsequent or supplemental EJR (pursuant to Public Resources Code section 21166). The city instead framed the issue in terms of whether to prepare an EJR for the project pursuant to a separate section of CEQA and, thus, was bound by its election not to proceed under section 21166.97
The net result is that participants in the CEQA process should consider whether the proposed activity qualifies for modification treatment under Public Resources section 21166, instead of requiring environmental analysis "from scratch."98
ADDITIONAL ISSUES RELATED TO PROJECT DESCRIPTION
Cumulative Impacts
As noted under Segmentation, above, chopping a large project into many little ones might have cumulatively disastrous consequences. Thus, the Guidelines state that an EIR shall be prepared if "[t]he project has possible environmental effects which are individually limited but cumulatively considerable."99 Here, the focus is limited to the project under consideration.
CEQA also provides that an EIR must discuss cumulative impacts of a project if its incremental effect is "cumulatively considerable" in light of other closely related projects.101 "The cumulative impact from several projects is the change in the environment which results from the incremental impact of the project when added to other closely related past, present, and reasonably foreseeable future projects."102 There is an important interplay between the phrase "closely related" and the project description: Whether "past, present, and reasonably foreseeable projects" are closely related to a project depends in large part on how the project is described.
Thus, rather than ending its inquiry with whether a project is adequately described, a court may look at whether the impacts of the particular activity have been accounted for in the EIR’s cumulative impacts analysis. For example, in San Joaquin Raptor, the court held that the EJR did not comply with CEQA even if it assumed the sewer expansion was severable from the development project, because the EIR contained no analysis of the combined environmental effects of the proposed development plus the sewer expansion "either as two severable projects or as one project."102
Environmental Setting/Baseline
An EIR must describe the physical environmental conditions in the vicinity of the project.103 This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant. Because a project is defined by physical change in the environment, the existing physical conditions necessarily shape the scope of the project. For instance, the relocation of a winery to a nearby site was properly described as a modification of the initial action rather than a wholly new project, since the winery’s environmental impacts upon the surrounding area were evaluated when the facility initially was constructed.1o4
A baseline issue which has received considerable judicial attention is whether a project, such as a general plan amendment, requires environmental assessment of changes in the physical condition in the affected geographical area, or merely the assessment of changes from the existing legal regime (e.g., an existing general plan). In Environmental Planning and Information Council v. County of El Dorado ("EPIC"),105 the court ruled that CEQA does not address the effects of a proposed general plan amendment on an existing general plan, but instead focuses on the effects of projects on the actual environment upon which the proposal will operate.106 In EPIC, the EIRs compared the existing general plan and the proposed amendments. Because the proposed plans actually called for substantial increases in population rather than illusory decreases from the general plan, the comparisons in the EIRs could only mislead the public. Accordingly, the EIRs failed as informative documents.107
While the EPIC decision describes the proper measure of project impacts, the county’s decision in EPIC to measure project impacts in a way the court determined to be improper probably began by describing the project merely as a general plan amendment, as opposed to the underlying activities which required approval of an amendment to the general plan.108 Irrespective of the merits of describing a project as a general plan amendment, which may be acceptable in some circutTlstances,109 the participants in the EIR process must not be misled when measuring project impacts by a project description that focuses on a change to a legal document rather than emphasizing change to the physical environment.
Alternatives
CEQA prohibits public agencies from approving projects as proposed if there are "feasible"110 alternatives or ‘feasible" mitigation measures available to the project proponent that substantially lessen the significant adverse environmental effects of such projects.111 A precise distinction between mitigation and alternatives is not possible; the California Supreme Court has stated that ‘alternatives are a type of mitigation."112
‘[P]roject alternatives typically fall into one of two categories: on-site alternatives, which generally consist of different uses of the land under consideration; and off-site alternatives, which usually involve similar uses at different locations."113 An EIR must describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.114 As noted previously,115 the project description in an EIR is required to contain ‘a statement of the objectives sought by the proposed project."116 Indeed, the Guidelines state that "[a] clearly written statement of objectives will help the lead agency develop a reasonable range of alternatives to evaluate in the EIR."117
The consequences of describing the objectives of a project in a seemingly innocuous manner were vividly illustrated in Methow Valley Citizens Council v. Regional Forester,118 a case decided under the National Environmental Policy Act, the federal statutes upon which CEQA was modeled.119 There, the Ninth Circuit emphasized that since the Forest Service’s stated purpose of providing a ‘winter sports opportunity," was ‘not, by its own terms, tied to a specific parcel of land," the environmental document was defective in its discussion of alternatives—the environmental document should have analyzed winter sport activities at alternative sites.120 The Ninth Circuit stated that ‘the Forest Service should more clearly articulate its goal, specifically identif5ying the market and geographic pool of skiers targeted."121 Methow thus illustrates the importance of describing objectives of the proposed project in a manner which minimizes the risk of the alternatives analysis running amok.
CONCLUSION
Since formulating an adequate project description necessarily is an ad hoc determination, CEQA baffles will continue to be fought on this subject. Knowing the rules of this game therefore is an important step toward winning in CEQA litigation.