Another CEQA-In-Reverse Case
- William Fulton
- Jun 21, 2021
- 3 min read
In recent years, California courts have wrestled with the whole concept of “CEQA-In-Reverse” – a debate that was seemingly put to rest in 2017 when the California Supreme Court ruled that CEQA can analyze a project’s impact on the environment but not the environment’s impact on a project. Now an appellate court has shut the door on a similar argument, saying that CEQA analysis of the proposed replacement of a scenic 90-year-old bridge in El Dorado County isn’t required to assess temporary safety hazards created by bridge construction – only whether the project will exacerbate existing environmental hazards. The bridge on Newtown Road over South Fork Weber Creek, located a few miles east of Placerville in El Dorado County, was built in 1929. In replacing the bridge, El Dorado County and is proposing closing Newtown Road during construction, instead routing traffic on a parallel route along Old Fort Jim Road. El Dorado County concluded that the “the completed Project will not expose people or structures to a new or increased significant risk of loss, injury, or death involving wildland fires.” The county issued a mitigated negative declaration for the project. Nearby residents organized as the Newtown Preservation Society argued that this proposed re-routing would create a safety hazard, as Old Fort Jim Road increases travel times by six minutes. They argued that an environmental impact report was required and sued. An El Dorado County Superior Court judge ruled in favor of the county and a three-judge panel of the Third District Court of Appeal affirmed the ruling. The Newtown Road Bridge The appellate court ruling was written by Acting Presiding Justice Ronald Robie, one of the leading CEQA experts in the state. Robie was a legislative staffer when CEQA was adopted and later served as director of the state’s Department of Water Resources. He did not give much credence to the Preservation Society’s argument. “The question,” he wrote, “is not whether substantial evidence supports a fair argument that the proposed project will have significant impacts on resident safety and emergency evacuation. The question is whether the project may have a significant effect on the environment.” Going into full CEQA-In-Reverse mode, Robie emphasized that the questions on the CEQA checklist about significant risk due to wildfires do not extend the EIR requirement “to situations where the environment has an effect on a project, instead of the other way around.” He emphasized that the concern was whether existing wildfire hazards would cause a risk during construction, not whether the project increased risk of injury or damage from wildfires. He also said the Preservation Society has not presented any factual basis arguing that the risk would be gerater. In an unpublished portion of the case, Robie also rejected the Preservation Society’s argument that the county had impermissibly deferred mitigation to the future, even though the specific mitigation had not been decided upon. This argument also had to do with evacuation in the event of wildfire. The county said a decision would be made at a later time as to whether an evacuation route would need to be constructed, depending on such factors as what time of year the actual construction will take place. “he agency with the expertise and authority over evacuations approved of the mitigation proposed and would continue to play a key role in determining which mitigation measures to employ in a given emergency,” Robie wrote. “The record also shows that it was impractical and infeasible for the County to articulate which evacuation option would be implemented in a specific emergency.” The Case:Newtown Preservation Society v. County of El Dorado, No. C092069 (June 16, 2021) The Lawyers: For Newtown Preservation Society: Patrick M. Soluri, Soluri Meserve, patrick@semlawyers.com For El Dorado County: Breann M. Moebius, Deputy County Counsel, breann.moebius@edcgov.us