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Did the Court Throw Good Environmental Planning Out the Window?
Lotus v. Department of Transportation
A Practitioner’s View

 
In January, the First District Court of Appeal reversed a Humboldt County Superior Court ruling and determined that the California Department of Transportation (Caltrans) did not adequately analyze the significance of a proposed highway realignment’s impacts to the root systems of old-growth redwood trees in Richardson Grove State Park. Missing from the environmental impact report (EIR) were the identification of a threshold of significance regarding root zone damage and an analysis of impact significance, even though disturbance in and around the root zone of the trees was specifically described and mapped.

Confounding the omission was the inclusion in the project description of environmental protection measures the court viewed as mitigation, rather than as part of the project, which created improper short-circuiting of California Environmental Quality Act (CEQA) analytical and disclosure requirements. The EIR described these features as “avoidance, minimization and/or mitigation measures” that “have been incorporated into the project to avoid and minimize impacts, as well as to mitigate expected impacts.” However, the EIR neither addressed the significance of impacts to the root systems nor specified that the impact-reducing features were actually mitigation commitments proposed in response to a significant effect.

A few months have passed since this decision.  During this time, discussion has ensued in practitioner circles about whether the decision somehow impedes good environmental planning by prohibiting the use of impact minimization and avoidance features in a project description, which has been a long-used, venerable, and effective planning practice. We explore this premise in detail in an attached paper.

After a careful reading of the decision, we express the opinion that, when properly carried out, the practice of including environmentally protective features in a project description can continue, but with important caveats.

If you have questions about this topic, please feel free to contact Gary Jakobs or Curtis Alling, Ascent Principals, or other senior staff at the firm.

Please feel free to browse Ascent’s Library of other Ascent Share articles; papers and presentations; and public environmental, climate change, and natural resources documents. Information empowers. Why not share it.
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Ascent Environmental, Inc. is a forward-looking environmental consultancy. We do not practice law nor give legal advice, but rather apply our extensive CEQA experience in our environmental practice with the goal of developing defensible environmental documents. We offer CEQA and NEPA, regulatory compliance, air quality, climate action planning, and natural resources services with the goal of providing personal attention to our clients and high quality outcomes on their most important projects. We are certified as a small business and women-owned business enterprise.
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