Fund for Environmental Defense v. County of Orange

CROSBY, J.—Dissenting.

Our rivers may be murky, the air opaque, and the Pacific clouded with sewage and sludge; but Public Resources Code section 21166 is as clear as they once were. It requires the preparation of a supplemental environmental impact report in three instances, i.e., where: “(a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report, [fl] (b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report, [fl] (c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes *1556available.” (Pub. Resources Code, § 21166.) All three subdivisions are applicable here.

The 106-page addendum to the EIR must be classified as a major revision reflecting both substantial changes in the project and in the circumstances surrounding it, if for no other reason than the project is now to be constructed in the center of a public wilderness park rather than on its periphery. (See, e.g., Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 937 [231 Cal.Rptr. 748, 727 P.2d 1029] [correcting a similar error by the majority of another panel of this division]; Mira Monte Homeowners Assn. v. County of Ventura (1985) 165 Cal.App.3d 357, 364-365 [212 Cal.Rptr. 127]; Rural Landowners Assn. v. City Council (1983) 143 Cal.App.3d 1013, 1024-1025 [192 Cal.Rptr. 325]; Sutter Sensible Planning, Inc. v. Board of Supervisors (1981) 122 Cal.App.3d 813, 822-823 [176 Cal.Rptr. 342].) Also, the expansion of the park obviously meets the definition of “[n]ew information, which was not known and could not have been known at the time the environmental impact report was certified as complete . . . .” (Pub. Resources Code, §21166, subd. (c).)

The majority’s attempt to downplay the importance of the public’s acquisition of the land surrounding the project—which I would liken to the discovery that an endangered species had returned to a former breeding ground on the site—is unpersuasive. The notion that the impact of the project on the new park land was effectively assessed in the original EIR because the flora, fauna, and topography considered previously have not changed displays an inability to see the forest for the trees. The land in question was private when the report was prepared. The persons primarily interested in the project’s impact on the parcel at that time were cattle ranchers. Now, however, the public owns the land and has a direct interest in its future. But the public is being denied the right to be heard in that role and to require county officials to defend, if they can, the placement of a major industrial complex smack-dab in the center of a wilderness park: “Above all, CEQA is intended to require decisionmakers to face environmental concerns, and the EIR is the core of the process. [Citations.]” (Atherton v. Board of Supervisors (1983) 146 Cal.App.3d 346, 353 [194 Cal.Rptr. 203] (conc, and dis. opn. of Crosby, J.).) If the original proposal had been the present reality, the public outcry would have been far greater than it was when the EIR was considered and approved. And even in a *1557county whose history displays a distinct preference for tract homes and asphalt to meadows and trees, it seems unlikely the project could have ever been approved in its current location.

I would reverse.1

At oral argument counsel for Nichols launched a desperation attack on appellants and the Attorney General of California, who appeared as an amicus in this proceeding, accusing both of seeking to stall the project simply for the sake of delay. But there is not a scintilla of evidence in the record to suggest appellants have anything beyond the public interest at heart, and the Attorney General obviously has better things to do than attempt to forestall industrial development in this state for no good reason. Rather, Nichols, whose failure to proceed for some five years after the EIR was approved allowed the world to change around its proposed facility, is the principal culprit if delay is the accusation.

In any event, appellants and the Attorney General are in good company: As Thomas Jefferson said in a letter to George Washington on May 16, 1792, “Delay is preferable to error.” (Shrager & Frost, The Quotable Lawyer (1986) § 50.7, p. 99.) Environmental cases are proof of the point. Environmental errors are very costly; and they are virtually impossible— and almost always expensive—to rectify. Still, where the foes of development have ignored the rules, we have not hesitated to hold against them. (See, e.g., Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194 [200 Cal.Rptr. 855].) When a public entity does not follow the law, no greater tolerance should be afforded.