California Supreme Court Upholds Bay-Delta Environmental Impact Report, Including Alternatives Analysis And Programmatic Level Of Impact Review

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The California Supreme Court has just issued its long-awaited opinion in the Bay-Delta case (In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings). Applying CEQA’s “rule of reason” regarding the range of alternatives to a project that must be evaluated in an environmental impact report, the decision holds that an EIR does not need to evaluate alternatives that do not achieve the fundamental objectives of a project. The case also confirms that a first tier programmatic EIR can provide a more general analysis of impacts, and defer more specific analysis to later environmental review.


The Cal-Fed Bay-Delta Program is a joint state-federal agency program initiated in 1994 to address concerns regarding water shortages, declines in water quality, the risk of levee failure and ecological deterioration of the Sacramento-San Joaquin Bay-Delta Estuary over a thirty year horizon. After six years of work, Cal-Fed certified a final program EIR in 2000. The EIR described the Cal-Fed program as “a general description of a range of actions that will be further refined, considered, and analyzed for site-specific environmental impacts as part of second- and third-tier environmental documents . . .”

The Cal-Fed program has four primary project objectives: improving ecosystem quality, providing reliable water supply, providing high water quality, and reducing the vulnerability of Delta levees. Cal-Fed determined that an integrated solution to Bay-Delta issues was required, so that each of these objectives was critical to implementing “a long-term comprehensive plan that will restore ecological health and improve water management for beneficial uses of the Bay-Delta system.” The EIR examined a range of project alternatives that would meet these four objectives. In the early process of “scoping” the alternatives to be evaluated in the EIR, Cal-Fed rejected a reduced water export alternative because it would not meet the program’s water supply reliability objective.

An EIR Need Not Evaluate Project Alternatives that do Not Achieve Basic Project Objectives

The Supreme Court held that Cal-Fed properly excluded the reduced export alternative from detailed analysis. The range of alternatives analyzed in the Cal-Fed EIR met the “rule of reason, ” and an EIR need only analyze alternatives that the lead agency determines could feasibly meet most of the basic project objectives. In this case, achieving the four project objectives was “the very foundation of the program,” so the EIR did not need to analyze an alternative that did not meet one of the fundamental objectives of the program.

The Court cautioned that a lead agency cannot draft project objectives in an “artificially narrow” manner. Nonetheless, an EIR can structure an alternatives analysis “around a reasonable definition of underlying purpose and need not study alternatives that cannot achieve that basic goal.” Citing prior cases to illustrate this point, the Court indicated, for example, that an EIR for a project with the purpose of providing a waterfront facility does not need to analyze inland alternatives.

This ruling affirms the importance of the project objectives stated in the EIR. Those objectives control the range of alternatives that need be analyzed. The ruling is also consistent with a long line of cases which have affirmed this role of basic project objectives.

Project Alternatives Should Mitigate the Impacts of the Proposed Project; They are Not Required to Mitigate Pre-Existing Environmental Conditions

In a related ruling, the Court held that the range of alternatives to be evaluated in an EIR must be defined “in relation to the adverse environmental impacts of the proposed project.” Part of the rationale for the reduced water export alternative was an argument that this alternative was environmentally superior because it would more effectively address existing environmental problems in the Delta. The Court noted that those environmental problems would continue to exist even if there were no Cal-Fed program, so they were part of existing baseline environmental conditions, not an impact of the project required to be addressed by the EIR alternatives.

This particular ruling may have particular application to the complicated issue of addressing greenhouse gas emissions in EIRs, confirming as it does that the purpose of CEQA alternatives is to mitigate the impacts that may result from a proposed project. An EIR is not required to set forth alternatives and mitigation measures that go beyond reducing project impacts and seek to solve pre-existing problems.

Program EIR Properly Provided General Analysis of Water Supply Issues

A lower court had rejected the Cal-Fed EIR, asserting that it lacked sufficient detail regarding the sources of water that would be used to implement the Cal-Fed program. The Supreme Court disagreed and upheld the EIR, noting that it was a first-tier program EIR. The EIR evaluated water supply issues at a general level of detail, identifying several potential sources of water, with estimates of acquisitions from particular sources and generalized analysis of the impacts of obtaining such water on various resources. The court held that this general level of analysis was sufficient. Noting that additional detail would be provided when specific projects were considered, the Court stated that the analysis was appropriately tailored to the first-tier stage of the Cal-Fed planning process.

In a related ruling, the Court held that the EIR was not required to include specific analysis of an “environmental water account” that was proposed to increase the amount of water available for fish through expanded water transfers and banking. Information on this water account became available before the Cal-Fed EIR was certified, but it was not required to be included in the Cal-Fed EIR because the water account was a specific project that would be carried out after the overall Cal-Fed plan was approved. Thus, it was appropriate for the first-tier program EIR to evaluate the overall impacts of the Cal-Fed plan, and the specific impacts of the water account could be evaluated in a later phase of environmental review. This holding confirms prior case law, but is significant because it confirms that agencies can address broader policy decisions in a first-tier document, and save a more detailed analysis until after the general policy decisions regarding a plan have been made

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