Consideration of alternatives in environmental impact reports

Abstract

"The Bay-Delta, the largest estuary in the western United States, is home to more than 750 plant and animal species and is home to California’s greatest source of water. For more than a decade however, the Bay-Delta has also been home to a battle between agriculturalists, environmentalists, and urban water users. The Bay-Delta’s ecosystem health, levee stability, and water supply and quantity is in a state of continual decline, and these interest groups have become entangled in disputes over how to address these problems. In 1994, CALFED, a group of state and federal agencies, was created in an effort to address the daunting problems facing the Bay-Delta. CALFED prepared a Program Environmental Impact Statement/Report (PEIS/R), detailing its proposed program to address what it defined as the four main problems facing the Bay-Delta: water supply instability, poor water quality, declining ecosystem health, and levee instability. Believing that all problem areas needed to be addressed concurrently, CALFED did not consider any alternatives to the program that did not satisfy all four areas. In 2000, before CALFED’s program was implemented, a group of interested parties brought suit in district court, claiming that CALFED’s PEIS/R was deficient and did not satisfy the requirements of the California Environmental Quality Act (CEQA). The plaintiffs asserted that under CEQA, not every goal or problem must be addressed in a single PEIS/R. Therefore, plaintiffs claimed that CALFED should have included alternatives to the program that did not address every problem. Specifically, the plaintiffs asserted that CALFED should have considered reducing water exported from the Bay-Delta, as although it would not solve the water supply instability problem, it would reduce environmental impact. Ultimately, the California Supreme Court decided that CALFED’s PEIS/R met CEQA’s requirements and that the agency was correct when it decided that it did not need to consider alternatives that did not meet each of the four goals. This Note argues that the California Supreme Court was correct in its decision, despite the fact that the decision seemingly goes against CEQA’s purpose and rules. The Note will also explain why CEQA’s procedural requirements are crucial and must be followed if the statute has a chance to effect substantive change. CEQA’s requirement that an agency consider program alternatives that are less environmentally harmful is one way to reach major substantive change, but this Note will explain that this alternatives analysis is dependent on two other procedural requirements. First, the preparation of an EIR and its labeling as a program or project EIR affects the alternatives analysis in that programs and projects require different levels of detail in their discussion of alternatives. Second, how the goal of the EIR is narrowed will similarly affect the alternatives considered." (p. 1)