March 30, 2017

Environmental impact report must account for potential sensitive habitat areas

In Banning Ranch Conservancy v. City of Newport Beach, the Supreme Court today holds that an environment impact report “must identify areas that might qualify as environmentally sensitive habitat areas (ESHA) under the California Coastal Act of 1976 (Coastal Act; § 30000 et seq.), and account for those areas in its analysis of project alternatives and mitigation measures.”  Because the EIR in the case before it didn’t do that and because the failure was prejudicial, the court’s unanimous opinion by Justice Carol Corrigan puts a hold on commercial and residential development of a 400-acre coastal zone tract in Orange County.  The court concludes that “[i]nformation highly relevant to the Coastal Commission’s permitting function was suppressed.”

In the quotable department:  Although discussing wildlife, the court misses the opportunity to use the word “critters” in an opinion for the second time in one week.  The opinion does, however, characterize a statute’s terms as “less than crystalline.”

The court reverses the Fourth District, Division Three, Court of Appeal.  It also finds to be “incorrect” a “suggest[ed]” statutory interpretation in a 2008 decision of the Second District, Division Two.

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