Third District Invalidates Water Bottling Facility EIR for Overly Narrow Project Objectives and Failure to Recirculate

On April 20, 2022, the Third District Court of Appeal filed its opinion in We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal.App.5th 683, reversing the trial court's judgment upholding the County's Environmental Impact Report ("EIR") for a water bottling facility. The court held that (1) the County's EIR for the botting facility defined the project objectives in an overly narrow manner; and (2) the County's process for evaluating the project's climate change impacts was flawed. This is one of two CEQA cases brought by the same Petitioners challenging the facility; see our blog post on the related CEQA case here.

In 2013, Crystal Geyser Water Company ("Crystal Geyser") purchased a water bottling facility in Siskiyou County from Dannon Waters of North America. The bottling facility had been inactive since 2010 and Crystal Geyser proposed returning the plant to production ("Project"). The County's board of supervisors approved the Project and certified the final EIR in December 2017.

Petitioners We Advocate Through Environmental Review challenged the EIR, arguing that it: (1) provided a misleading project description; (2) defined the Project's objectives in an impermissibly narrow manner; (3) improperly evaluated the Project's impacts to aesthetics, air qualify, climate change, noise, and hydrology; and (4) approved the Project even though it was inconsistent with the County's and the City's general plans. The trial court denied all of Petitioners' arguments and upheld the EIR. However, the Court of Appeal reversed and ordered the trial court to enter a new judgement granting the petition for writ of mandate. In the published portion of the opinion, the Court addressed Petitioners' challenges to the EIR's project objectives and climate change analysis, including the obligation to recirculate certain portions of the EIR.

Petitioners argued that the County's EIR had impermissibly narrow project objectives. An EIR must include a clearly written statement of objectives that will help the lead agency develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision-makers in preparing findings. Here, the EIR had eight objectives that the Court found were drafted in such as manner as to not allow for any alternative other than the proposed project-e.g., to "operate a beverage bottling facility" and "initiate operation of the [former plant] as soon as possible to meet increasing market demand." The Court noted that the project objectives were written to mirror the proposed project itself. The Court found this formulation of objectives prejudicial and unreasonably narrow because it precluded the selection of any other alternative than the proposed Project, preventing informed decision-making and public participation.

Next the Court turned to the EIR's climate change impact analysis. Petitioners argued and the Court agreed that the County violated the recirculation requirements under CEQA. Recirculation is required when "significant new information" is added to an EIR after the draft EIR has been released to the public for review. (Pub. Res. Code, § 21092.1.) Here, the draft EIR estimated that the Project would result in 35,486 metric tons of carbon dioxide emissions per year. The final EIR, however, almost doubled that estimate, disclosing that the Project would result in emissions of up to 61,1281 metric tons per year. The Court held that the increased emissions estimate-while it did not change the ultimate conclusion in the EIR-nonetheless constituted "significant new information" because it revealed an increase in the severity of the impact.

In the unpublished portion of the opinion, the court rejected Petitioners' challenges to the EIR's analysis of the project's impacts on aesthetics, air quality, noise, and hydrology. The court also upheld the project description and found that Petitioners failed to meet their burden in arguing that the Project is inconsistent with the County's and City's general plans.

Based on the Court's resolution of these issues, it instructed the trial court to enter a new judgment that specified the actions the County must take to comply with CEQA. These actions included the County revising the project objective, revising the alternatives analysis in light of the new project objectives, and recirculating the EIR's discussion of climate change to allow the public to comment on the new emissions estimate.