IV. Legal Authority for Preparation of EIR
Nothing in our approval of the Northern Portion of the line (and concurrent certification of the FMND) was intended to foreclose more extensive environmental analysis of the various routes proposed for the Southern Portion. We made this extremely clear in D.06-10-047:
We do not believe that certifying the Mitigated Negative Declaration is improper under the narrow circumstances presented here. We are only approving the Northern Portion of the route, north of the area in dispute among the parties. The MND does not analyze that Northern Portion separately from the rest of the proposed route, so it is essential to certify the MND to allow construction to begin on that portion. However, we are aware that hearings on the disputed portions of the route occurred October 5-6, 2006, and that the Commission will be issuing a subsequent decision on that portion. That decision may necessitate additional analysis of environmental impact along the portions of the route not addressed here.12
Our order was equally clear: "Nothing in this decision, the Mitigated Negative Declaration, or prior rulings in this proceeding should be construed as
approval for PacifiCorp to construct the First Project/Southern Portion, as described in this decision."13 PacifiCorp did not appeal this determination.
In briefs filed after the October hearings, the Mackintoshes urged the Commission to require preparation of an EIR that fully evaluated the various route options. They asserted that an EIR is required if there is a "fair argument" that a project may result in significant environmental impact:
When faced with a challenge to the lead agency's adoption of the negative declaration without preparation of an EIR, the courts have repeatedly held that "deference to the agency's determination is not appropriate and its decision not to require an EIR can be upheld only when there is no credible evidence to the contrary." Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1318 and cases cited therein; see also Quail Botanical Gardens Foundation, Inv. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602. California Environmental Quality Act (CEQA) requires the preparation of an EIR if there is any evidence that a project may result in a significant environmental impact. Pub. Resources Code, § 21151(a). "Conversely, an agency may adopt a negative declaration only if there is no substantial evidence that the project may have a significant effect on the environment." Gentry v. City of Murietta (1995) 36 Cal.App.4th 1359, 1399. Indeed, the CEQA Guidelines provide that a mitigated negative declaration is appropriate only where project revisions or mitigation measure would avoid or minimize the effects to such a degree that "clearly no significant effect on the environment would occur," and "there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment." CEQA Guidelines § 15369.5.
A court reviews an agency's determination under the "fair argument" test, which mandates that the agency must prepare
an EIR whenever substantial evidence in the record supports a fair argument that the proposed project may result in significant environmental impacts. Id. at 1399-1400; Pub. Resources Code § 21080(c)(1); CEQA Guidelines § 15070(a). "If there is substantial evidence of a significant environmental impact, evidence to the contrary does not dispense with the need for an EIR when it still can be `fairly argued' that the project may have a significant impact." San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1996) 42 Cal.App.4th 608, 617.14 Under the "fair argument" test, the court must resolve doubts in favor of environmental review, and the agency must prepare a site-specific EIR if a "fair argument" can be made, based on substantial evidence in the record, that the project might result in a potentially significant environmental impact. Sierra Club, supra, 6 Cal.App.4th at 1318-1319. (Footnote omitted.) Nor can an agency "hide behind its own failure to gather relevant data." Gentry, supra, 36 Cal.App.4th at 1378-1379.15
We have the authority to order an EIR at this time given the explicit reservation of our right to do so in D.06-10-047. All parties were fully aware that hearings were required on the disputed Southern Portion and that those hearings might lead the Commission to conclude an EIR was necessary.
However, even if we had not included such explicit reservations in D.06-10-047 of our right to order an EIR, the CEQA guidelines make clear that an EIR may be ordered after adoption of an FMND under changed circumstances. CEQA Guideline 15162, "Subsequent EIRs and Negative Declarations," provides that a subsequent EIR after certification is proper where (among other reasons):
(3) New information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the previous EIR was certified as complete or the Negative Declaration was adopted, shows any of the following:
(A) The project will have one or more significant effects not discussed in the previous EIR or negative declaration;
(B) Significant effects previously examined will be substantially more severe than shown in the previous EIR;
The entire hearing record came into evidence after the Draft Mitigated Negative Declaration (DMND) was prepared. While there was some overlap among the comments furnished in the CEQA process and the evidence adduced at hearing, the two processes operated on parallel tracks. Thus, the environmental consultants did not have the hearing record before them in preparing the FMND, and the Commission did not consider that record in certifying that document. Thus, we are clearly within the CEQA Guideline for preparation of a subsequent environmental document.
Further, an EIR is simply the best option in this case, given the stark division among the parties about which route is best, and the lack of full CEQA analysis of options other than Option 3 in the current FMND. We want to have the option of choosing among various routes, and therefore believe the most prudent course at this point is to order preparation of an EIR. The Commission has the discretion under General Order (GO) 131-D to expand the scope of review in order to fulfill its requirements under the Public Utilities Code to protect the public interest. (See D.04-12-020, mimeo., p. 2, n.2.) The parties submitted post-hearing briefs summarizing the evidence after the Mitigated
Negative Declaration was certified. The hearings and briefs have led the Commission to believe that an analysis of additional routes is necessary in order to make an informed decision on the project. However, in order to allow the Commission the option to approve either Option 3 or one of these additional routes, a CEQA review of the other routes is necessary. (See CEQA Guidelines §§ 15126.6., 15092.) We do not intend for every GO 131-D application to require an EIR, or for every case where different routes are possible to require one, but here we must have the benefit of analysis of alternate routes.
12 D.06-10-047, mimeo., pp. 11-12 (emphasis added).
13 Id., ordering para. 13.
14 "A significant effect on the environment is defined as 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." Stanislaus Audubon Soc'y, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 152; Pub. Resources Code § 21068; CEQA Guidelines § 15382.
15 Opening Brief of Donald M. and Judy Mackintosh (Mackintosh Brief), filed November 7, 2006, at 27-29.
