State Court Ruling Backs Environment Disclosure Act
In an important victory for environmentalists, the state Supreme Court ruled Thursday that before approving a new project, a public agency must disclose all potential effects and any alternatives that may be less harmful to the environment.
The ruling came in the first major environmental case to come before the court since conservatives emerged in the majority last year after the defeat of three liberal justices in the November, 1986, election.
The decision reaffirmed previous court rulings over the years that have broadly construed the landmark California Environmental Quality Act as requiring environmental impact reports by governmental authorities in advance of major public and private projects.
In a unanimous opinion written by Justice David N. Eagleson, the court held that the University of California must prepare a new environmental impact report for a biomedical research facility that had stirred heated opposition in the San Francisco neighborhood where it was constructed.
The justices rejected the university’s contention that there had been no need to explore alternative sites because it had eliminated any significant risk from emissions of toxic, carcinogenic and radioactive substances from the site it chose.
The university also failed to fully reveal the anticipated future uses of the facility and what impact they might have on the neighborhood, the court said.
“If (the act) is scrupulously followed, the public will know the basis on which its responsible officials either approve or reject environmentally significant action, and the public, being duly informed, can respond accordingly to action with which it disagrees,” Eagleson wrote.
Because the university has taken steps to protect the neighborhood from potentially harmful substances, it may continue current research activity at the facility, but cannot transfer the bulk of its operation there until the new report is prepared and approved, the court held.
The justices added that lower courts could intervene to halt the activity if the university fails to comply with state environmental requirements in the future.
State Atty. Gen. John K. Van de Kamp, whose office had filed a friend of the court brief in the case, praised Thursday’s ruling. “This makes crystal clear the continued vitality of previous cases where the California Environmental Quality Act has been interpreted to require the fullest possible protection,” Van de Kamp said.
The attorney general noted that environmental impact reports often “shuck off” any discussion of alternatives to a proposed project. “The decision at least makes sure the public will have more information about possible alternatives,” he said.
Environmental law experts agreed that the ruling added important support to past court decisions broadly applying the 1970 act, which requires environmental impact reports as a means of increasing public knowledge of environmentally significant decisions by public agencies.
“This decision represents a vigorous reaffirmance of the vitality of (the law) and that’s very good news for the environment and the law,” said Antonio Cosby-Rossmann, a San Francisco attorney who specializes in environmental law. “Industrialists, freeway builders,water diverters and other developers ought not to find any comfort in what the court did.”
Kathryn R. Devincenzi of San Francisco, the attorney who represented the neighborhood group opposing the UC project, called the ruling “very significant.”
“It is particularly important in this era of environmental degradation for the court to have upheld key provisions of (the law) and to have done so stressing the importance of alternatives and a truthful project description,” she said.
The attorney said the ruling would enable opponents to use the new data likely to come from forthcoming reports to build “public pressure” against the project.
Ethan P. Schulman of San Francisco, an attorney representing the university, welcomed the fact that the court allows current research to continue and predicted that the project will be reapproved when a new report is completed.
The case arose in 1986 after the university disclosed its intention to relocate its School of Pharmacy research facility from UC San Francisco to a building it purchased two miles away in the Laurel Heights neighborhood.
As required, the university filed an environmental impact report saying that the new facility would be used in part for work involving potentially hazardous substances. After a public hearing, the university adopted several measures that it said would virtually eliminate health risks.
But the Laurel Heights Improvement Assn. of San Francisco challenged the move in a lawsuit and last year, a state Court of Appeal held that the university had failed to adequately explore less harmful alternatives and had not provided “substantial evidence” that it had eliminated any significant risk of dangerous emissions from the facility.
In Thursday’s 79-page opinion, the court said that it did not intend to “require prophecy” in the preparation of environmental impact reports. But, it said, such reports must include “reasonably foreseeable” consequences of any future expansion “when it will likely change the scope or nature” of the initial project.
The court noted that the university anticipated that it would more than triple the 100,000 square feet now being used at the site and said it must provide more “meaningful and reliable data” in a new report discussing future activity.
The justices said further that even though the university had taken steps to minimize harmful effects at the Laurel Heights site, it still must discuss alternative sites in a new report.
The university’s discussion of alternatives was “cursory at best,” Eagleson wrote, and its obligations under (the law) were not met merely because officials had considered alternatives in the internal planning process and found them infeasible.
“The (university) misses the critical point that the public must be equally informed,” Eagleson wrote. “Without meaningful analysis of alternatives in the (environmental impact report), neither the courts nor the public can fulfill their proper roles in the (legal) process.”
However, the justices went on to overturn a finding by the Court of Appeal that the university had not shown that it had eliminated risks at the facility and thus that activity there must come to a halt.
The neighborhood group opposing the project had failed to show that the university’s studies and other evidence were inadequate, the justices said. They noted further that the university had taken 14 separate actions to ensure the proper handling of radioactive substances alone.
In sum, the high court said, there was “substantial evidence” to support the university’s claim that it had eliminated any significant risks and that there was no need to shut down its current activities.
“Such an order would seriously disrupt ongoing scientific research and perhaps cause the university to lose important faculty members and research funds,” Eagleson wrote.