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North Coast Rivers Alliance v. Kawamura

ELR Citation: 45 ELR 20233
Nos. C072067, C072617, (Cal. Ct. App. 3d, 12/02/2015)

A California appellate court, in an unpublished opinion, held that the California Department of Food and Agriculture's environmental impact report (EIR) for a seven-year program to control the light brown apple moth, an invasive pest, violated the California Environmental Quality Act (CEQA). The agency initially prepared an EIR to eradicate the moth, but "at the last minute," it instead approved a program to control the moth based on new information that eradication was no longer attainable. There was no supplemental environmental review in connection with the last-minute change, and the EIR did not evaluate control as a reasonable alternative to eradication. Several groups filed suit, but the lower court denied their petitions. On appeal, the court reversed and remanded. The EIR violated CEQA because it failed to analyze a control program as an alternative to an eradication program, with the consequence that the EIR dismissively rejected anything that would not achieve full eradication. Even before the new information came to light that eradication was no longer attainable, the EIR violated CEQA by giving the project's "objective" an artificially narrow definition—the eradication of the moths—and thereby omitting analysis of pest control as a reasonable alternative to the eradication program. This error was prejudicial, requiring reversal of the judgments. In addition, the agency's last-minute change from an eradication program to a control program did not cure the prejudice because the EIR did not evaluate a control program as an alternative to an eradication program. Nor did the EIR's cumulative impacts discussion address the reasonably foreseeable need to continue pest control efforts after the seven-year period expired.