San Diego County's integrated waste management plan did not require preparation of an environmental impact report even though the plan called for the creation of new landfills and identified 10 possible sites for those landfills, the Fourth District Court of Appeal has ruled.
"There is no substantial evidence in the administrative record to support a fair argument that the county's adoption of the summary plan and siting element may have a significant environmental impact, and thus the county did not prejudicially abuse its discretion by certifying the negative declaration," wrote Justice Gilbert Nares for a unanimous three-judge panel of the Fourth District. Nares also wrote that "because all 10 of the proposed landfill sites identified in the siting element are only 'tentatively reserved', preparation of an EIR (including a program EIR) would be premature and is not yet required under CEQA."
The lawsuit was brought by the Pala Band of Mission Indians, whose reservation is located near Gregory Canyon, which was identified in the waste plan as one of the 10 possible landfill sites. In fact, the county's voters specifically designated Gregory Canyon as the location for a private landfill by passing Proposition C in 1994. After preparing the plan pursuant to the state's integrated solid waste management law, the county Department of Public Works issued a negative declaration on the plan under the California Environmental Quality Act.
The Pala tribe sued based on a four-page comment letter it had written in response to the negative declaration notice. In the letter, the tribe argued that the county had not examined several important environmental issues in deciding to issue a negative declaration. Among other things, the tribe claimed that the county's initial study ignored "considerable documentation of the potential secondary effects" of the plan and argued that the inclusion of a landfill site "is the first step in the approval process of that landfill". The tribe also argued that the initial study ignored a "substantial body of information" available from the county, and that it should conduct additional analysis focusing on "potential effects of developing the landfill sites" and "program-level mitigation measures".
At the trial court level, Superior Court Judge Judith McConnell, the designated CEQA judge for San Diego County, denied Pala's petition, claiming that because the Gregory Canyon site was only one site of 10 under consideration, it was premature to require an EIR. The appellate court agreed.
"Because the proposed potential landfill sites identified in the siting element are only 'tentatively reserved,' there is nothing in the administrative record to establish it is reasonably foreseeable at the current planning stage that any of the sites will actually be developed. The siting element [of the plan] suggests that although potential sites have been identified in North and South County, these sites may not be developed."
The appellate court also concluded that none of the cases Pala used to make its argument required a different conclusion. The three cases in question all dealt with program EIRs and tiering, but the appellate court concluded that they were not "on point" in that none of them required even a program EIR at such an early stage.
The court also rejected Pala's argument that its comment letter constitutes substantial evidence in support of a fair argument that the county's approval of the siting element may have a significant impact on the environment. The letter, the appellate court found, "consists almost exclusively of mere argument and unsubstantiated opinion, which are excluded from the definition of substantial evidence under CEQA."
The Case: Pala Band of Mission Indians v. County of San Diego, No. D029489, 98 Daily Journal D.A.R. 12579 (issued November 18, 1998; published December 9, 1998).
The Lawyers:
For Pala Band: Thomas D. Mauriello, (619) 515-1144.
For San Diego County: R. Mark Beesley, Deputy County Counsel, (619) 531-6456.
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