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FRIENDS OF MAMMOTH et al., Plaintiffs and
Appellants Sac. No. 7924 Supreme Court of California 8 Cal. 3d 247; 502 P.2d 1049; 104 Cal. Rptr. 761; 4 ERC (BNA) 1593; 2 ELR 20673 September 21, 1972 John C. McCarthy and Young, Henrie & McCarthy for
Plaintiffs and Appellants. Evelle J. Younger, Attorney General, Louise H. Renne and
Nicholas C. Yost, Deputy Attorneys General, Carlyle W. Hall, Jr.,
John R. Phillips, Frederic P. Sutherland, Beatrice Challiss Laws,
J. Edd Steppe and Sandy English as Amici Curiae on behalf of
Plaintiffs and Appellants. N. Edward Denton, District Attorney, David M. Kennedy,
Assistant District Attorney, Kronick, Moskovitz, Tiedemann &
Girard, Adolph Moskovitz, Robert E. Murphy and Clifford W. Schulz
for Defendants and Respondents. Gray, Cary, Ames & Frye, R. Reaves Elledge, Jr., and
Browning E. Marean III for Real Party in Interest and Respondent. In Bank. Opinion by Mosk, J., with Wright, C. J., McComb,
Peters, Tobriner and Burke, JJ., concurring. Separate dissenting
opinion by Sullivan, J. This case affords us the first opportunity to construe
provisions of the California Environmental Quality Act of 1970
(EQA). (Pub. Resources Code, §§ 21000-21151.)1 As
the express legislative intent forthrightly declares, the EQA was
designed to be a milestone in the campaign for "maintenance
of a quality environment for the people of this state now and in
the future . . . ." (§21000, subd. (a).) The specific
question presented here is whether a municipal body is required
to submit an environmental impact report (see § 21100) pursuant
to section 21151 of the code before it issues a conditional use
or building permit.
Real party in interest, International Recreation, Ltd.
(International) filed an application for a conditional use permit
on April 20, 1971, with defendant Mono County Planning Commission
(Commission). The application described the proposed use as
follows: "Two multi-story structures housing 64 1, 2, 3, 4
bedroom condominiums plus 120 studio-type condominiums, a
proposed restaurant and specialty shops. All for sale. With ample
parking and recreational facilities." The use permit report
refers to a parcel of 5.5 acres, approximately 135 feet by 1,775
feet. It appears from the record that some six buildings are
eventually contemplated each with a height of from six to eight
stories. Thus a long and relatively narrow structure or series of
structures in close proximity is proposed. The Commission approved the use permit on May 6, 1971.
Thereupon on May 21, Frederick Schaeffer and Richard Young, both
members of the class represented by plaintiff Charles E. Griffin
II, along with two other individuals, appealed the Commission's
decision to defendant Mono County Board of Supervisors (Board).
On June 14, 1971, the Board affirmed the issuance of the use
permit. On July 12 plaintiffs Friends of Mammoth2 and Griffin filed a petition for a writ of administrative mandamus with the Court of Appeal attacking the validity of the permit. On July 15, the court denied the writ without prejudice to the filing of proceedings in the superior court. On July 19, plaintiffs filed an identical petition with the Mono County Superior Court. The writ was denied and plaintiffs appeal. We stayed the activities of International for which the conditional use permit and subsequent building permit were issued pending our disposition of the matter.
I Mono County is situated in eastern California and is bordered
on the east by the State of Nevada. The boundary on the west
generally follows the crest of the Sierra Nevada mountain range.
The county is primarily mountainous and open range land, almost
all above 5,000 feet. It is California's third smallest county in
population with 4,016 people. Although historically a county
oriented to the economy of cattle and sheep ranching, nature's
bountiful gifts of majestic mountains, lakes, streams, trees and
wildlife have produced in the area one of the nation's most
spectacularly beautiful and comparatively unspoiled treasures. Mammoth Lakes, the section of Mono County immediately involved
in this action, consists of some 2,100 acres of land surrounded
by the Inyo National Forest. Plaintiffs assert that acute water
and sewage problems will be created if International is permitted
to construct its proposed condominium complex. Additional matters
of concern include snow removal, police protection and the
diminution of open space in general. Documents filed with
defendant Commission prior to its decision indicate that the
Commission may have considered in general the effect of the
construction on the character and value of surrounding property,
traffic, water and sewage facilities, snow removal, and fire and
police protection. The principal legal question that arises is whether the EQA
applies to private activities for which a permit or other similar
entitlement is required. This issue has been ventilated, not only
by the named parties but also by the Attorney General and the
Sierra Club as amici curiae. Defendants and International contend
that even if their interpretation of the EQA does not prevail,
plaintiffs should be denied relief for other reasons. Plaintiffs
likewise assert additional grounds for setting aside the use and
building permits. In view of the impact inherent in the initial
judicial consideration of the EQA, we turn first to that issue. II Though recognition of the problem in and out of government is
more pervasive today, concern over violation of our environment
is not entirely a contemporary phenomenon. Four decades ago
Justice Holmes described a river as "more than an amenity,
it is a treasure. It offers a necessity of life that must be
rationed among those who have power over it." (New Jersey v.
New York (1931) 283 U.S. 336, 342 [75 L.Ed. 1104, 1106, 51 S.Ct.
478].) Five years ago Justice Douglas spoke for the high court in
admonishing the Federal Power Commission that the issue is not
"whether the project will be beneficial to the licensee . .
. . The test is whether the project will be in the public
interest . . . in preserving reaches of wild rivers and
wilderness areas . . . and the protection of wildlife."
(Udall v. FPC (1967) 387 U.S. 428, 450 [18 L.Ed.2d 869, 883, 87
S.Ct. 1712].) More recently, a circuit court discussed statutes
attesting "to the commitment of the Government to control,
at long last, the destructive engine of material
'progress.'" The duty of the judiciary, it held, is to
assure that important environment purposes, heralded in
legislative halls, are not lost or misdirected in the vast
hallways of administrative bureaucracy. (Calvert Cliffs' Coord.
Com. v. United States A. E. Com'n (1971) 449 F.2d 1109, 1111 [146
App.D.C. 33].) The public interest involved in a challenge to
administrative action need not be economic. (Environmental
Defense Fund, Incorporated v. Hardin (1970) 428 F.2d 1093, 1097
[138 App.D.C. 391].) The most recent declaration on the ecology ethic was the
Supreme Court decision in Sierra Club v. Morton (1972) 405 U.S.
727 [31 L.Ed.2d 636, 92 S.Ct. 1361]. Though decided on an issue
of standing to maintain the action, majority and dissenting
opinions agreed on environmental protection principles. Justice
Stewart wrote for the majority: "Aesthetic and environmental
well-being, like economic well-being, are important ingredients
of the quality of life in our society, and the fact that
particular environmental interests are shared by the many rather
than the few does not make them less deserving of legal
protection through the judicial process." (405 U.S. at p.
734 [31 L.Ed.2d at p. 643, 92 S.Ct. at p. 1366].) In dissenting
Justice Blackmun decried rigidity of the law that prevented
reaching issues involving "significant aspects of a wide,
growing, and disturbing problem, that is, the Nation's and the
world's deteriorating environment with its resulting ecological
disurbances." (405 U.S. at p. 755 [31 L.Ed.2d at p. 654, 92
S.Ct. at p. 1376].) California's Environmental Quality Act of 1970 requires
various state and local governmental entities to submit
environmental impact reports before undertaking specified
activity. These reports compel state and local agencies to
consider the possible adverse consequences to the environment of
the proposed activity and to record such impact in writing. In an
era of commercial and industrial expansion in which the
environment has been repeatedly violated by those who are
oblivious to the ecological well-being of society, the
significance of this legislative act cannot be understated. As
section 21001, subdivision (g), clearly sets forth, the EQA
requires "governmental agencies at all levels to consider
qualitative factors as well as economic and technical factors and
long-term benefits and costs and to consider alternatives to
proposed actions affecting the environment." Pursuant to section 21100, the environmental impact reports
required by the act must set forth the following information:
Under section 21100, the reports are required of "state
agencies, boards and commissions"; section 21101 requires
similar information with regard to federal projects "on
which the state officially comments"; section 21102 requires
an impact report before a state agency requests certain funds;
section 21105 provides that a state official must include a
report as part of "the regular project report used in the
existing review and budgetary process." Finally sections
21150 and 21151 require local governmental entities to submit
environmental impact reports prior to receiving certain state or
federal funds or engaging in various activities. Section 21151, the specific provision involved in the case at
hand, states: "The legislative bodies of all cities and
counties which have an officially adopted conservation element of
a general plan shall make a finding that any project they intend
to carry out, which may have a significant effect on the
environment, is in accord with the conservation element of the
general plan. All other local governmental agencies shall make an
environmental impact report on any project they intend to carry
out which may have a significant effect on the environment and
shall submit it to the appropriate local planning agency as part
of the report required by Section 65402 of the Government
Code." Mono County does not yet have a conservation element of a
general plan. Thus, the first sentence of section 21151 does not
apply. Only if the second provision covers the issuance of a
permit does the mandate of the act govern here. This
determination necessarily turns on whether the term
"project" as used in section 21151 includes private
activity for which a government permit is necessary. We begin our inquiry by noting that nowhere in the act is
"project" defined. (Compare The Ventura-Los Angeles
Mountain and Coastal Study Commission Act, Pub. Resources Code,
§ 22000 et seq., enacted at the same time as the Environmental
Quality Act, ch. 2 of which sets forth definitions of terms used
therein.) Because of the failure of the Legislature to expressly
delineate the meaning of "project," we must rely on a
cardinal principle of statutory construction: that absent "a
single meaning of the statute apparent on its face, we are
required to give it an interpretation based upon the legislative
intent with which it was passed." (Benor v. Board of Medical
Examiners (1970) 8 Cal.App.3d 542, 546-547 [87 Cal.Rptr. 415]
(hg. den.).) In this instance our task has been considerably simplified
because the Legislature has expressly set forth its intent in
sections 21000 and 21001 of the act. These two provisions,
captioned "Legislative intent" and "Additional
legislative intent," contain no less than 14 references to
the concern of the Legislature with the current deterioration of
the environment. (See §§ 21000, subds. (a)-(g); 21001, subds.
(a)-(g).) An analytical reading of these sections leads to the
ineluctable conclusion that the Legislature intended to include
within the panoply of the act's provisions private activities for
which a permit, lease or other entitlement is necessary. The clearest manifestation of this intent can be found in
section 21000, subdivision (g), which provides: "It is the
intent of the Legislature that all agencies of the state
government which regulate activities of private individuals,
corporations, and public agencies which are found to affect the
quality of the environment, shall regulate such activities so
that major consideration is given to preventing environmental
damage." (Italics added.) It is significant that regulate is
the verb employed in this subdivision. (See also § 21107.) Its
use demonstrates that the concern of the Legislature was not
limited solely to activities which the government performs in a
proprietary capacity. Instead the Legislature apparently desired
to ensure that governmental entities in their regulatory function
would determine that private individuals were not forsaking
ecological cognizance in pursuit of economic advantage. One of
the most common means by which a government agency regulates
private activity is through the granting or denial of a permit. The Legislature also evidenced strong concern for the
promulgation of standards by which environmental needs could be
regularly included in the decision-making process. (See § 21001,
subds. (f) and (g).) Because of the regular involvement of public
entities in the issuance of permits it would appear that
requiring "governmental agencies at all levels to develop
standards and procedures necessary to protect environmental
quality" ( § 21001, subd. (f)) necessarily includes not
only situations in which the government itself engages in
construction, acquisition or other development, but also those
instances in which the state regulates private activity. Other provisions in the EQA likewise support the conclusion
that the Legislature intended to include the permit-issuing
process as a governmental activity for which an environmental
impact report is required. For example, section 21000,
subdivision (e), states: "Every citizen has a responsibility
to contribute to the preservation and enhancement of the
environment." (Italics added.) Such responsibility may never
be exercised if the EQA is to apply only to activities in which
the government is directly engaged. "Every citizen" is
an unmistakable reference to private individuals as distinguished
from government officials. Subdivision (f) of the same section
provides: "The interrelationship of policies and practices
in the management of natural resources and waste disposal
requires systematic and concerted efforts by public and private
interests to enhance environmental quality and to control
environmental pollution." (Italics added.) Finally, section
21001, subdivision (d), provides: "Ensure that the long-term
protection of the environment shall be the guiding criterion in
public decisions." (Italics added.) The reference in section
21000, subdivision (f), to "private interests" coupled
with the "public decisions" phrase of section 21001,
subdivision (d), contemplates as within the act the decision of a
public agency to grant or deny private interests the opportunity
to engage in enumerated activities. In view of what appears to be a clear legislative mandate that
the EQA be given a broad construction and that it apply to
private actions for which a permit is necessary, we note
parenthetically that the principal author of the EQA, Assemblyman
John T. Knox, is on record as supporting such an interpretation.
The legislator, in a sworn declaration, states that in authoring
the bill and guiding it through the Legislature it "was my
intent that the requirement of an environmental impact report
extend to the situation where a state or local public agency by
lease, permit, funding or comparable entitlement for use was
authorizing or facilitating a private undertaking as long as
there was a significant impact upon the environment. This
includes situations such as zoning changes, conditional use
permits and building permits. I communicated this intent to other
legislators in the course of the legislative process . . .
." (Declaration by John T. Knox, Feb. 1972, plaintiffs'
opening brief, appendix C.) Defendants and International seek to rebut the significance of
the Knox declaration by offering a declaration of Assemblyman
Carley V. Porter in which he opines that the act does not apply
to private activities for which a permit was necessary.
(Declaration of Carley V. Porter, Apr. 11, 1972, appendix to
defendants' answer to briefs of amici curiae; also see Interim
Guidelines for the Preparation and Evaluation of Environmental
Impact Statements Under the California Environmental Quality Act
of 1970, Office of the Secretary for Resources (draft of Apr. 28,
1972).) That two legislators report contradictory legislative intent
fortifies judicial reticence to rely on statements made by
individual members of the Legislature as an expression of the
intent of the entire body. (See Ballard v. Anderson (1971) 4
Cal.3d 873, 881 [95 Cal.Rptr. 1, 484 P.2d 1345]; Rich v. State
Board of Optometry (1965) 235 Cal.App.2d 591, 603 [45 Cal.Rptr.
512] (hg. den.).) Other extrinsic aids to determine legislative
intent are generally more persuasive. Defendants and International also submit a statement by a
former consultant to the Assembly Select Committee on
Environmental Quality. The consultant, Robert L. Jones, conceded
that it was only his "impression" that the EQA was
limited to activities undertaken directly by governmental bodies.
(Testimony of Robert L. Jones before Senate Committee on Natural
Resources and Wildlife, on the Administration of the
Environmental Quality Act of 1970 and Related Acts, Dec. 16,
1970, at pp. 3-5.)3 More significant, perhaps, is the
preface to his remarks in which he defers for an authoritative
interpretation of the act to "the Legislative [Counsel] or
the Attorney General." (Id. at p. 2.) To compound the
conflict of extrajudicial opinions, the Attorney General has
taken the position that the act does apply to private activity
(Attorney General of the State of California, In re Proposed
Guidelines for the Preparation and Evaluation of Environmental
Impact Statements under the California Environmental Quality Act
of 1970, at p. 9; amicus curiae brief of the State of California
filed herein, at pp. 15-26) whereas the Legislative Counsel has
concluded that it does not (letter from George H. Murphy,
Legislative Counsel, to Hon. Carley V. Porter, Nov. 23, 1971,
appendix to defendants' answer to briefs of amici curiae, exh.
3). We observe, however, that the cursory three-page letter of
the Legislative Counsel was not designed to be an in-depth
analysis of the type included in the Attorney General's petition
and brief which together number some 60 pages. FN3 In a subsequent letter Jones first
indicated that it was his view that the EQA "probably"
did not apply to private activities. He further stated, however,
"In the policy section of AB 2045 [the act's bill number],
there are however, two sections that certainly indicate
legislative policy on application of environmental impact studies
on private land. The first is Section 21000(g) and the second is
Section 21107. Considering these two sections together, I believe
it can be inferred that all state agencies, boards and
commissions who regulate private activities are responsible for
insuring environmental protection when these activities are
carried out." (Letter from Robert L. Jones to Hon. Peter F.
Schabarum and Carley V. Porter, Nov. 15, 1971.) In resolving the conflict on intent, as we must, we conclude
that the Legislature intended the EQA to be interpreted in such
manner as to afford the fullest possible protection to the
environment within the reasonable scope of the statutory
language. We also conclude that to achieve that maximum
protection the Legislature necessarily intended to include within
the operation of the act, private activities for which a
government permit or other entitlement for use is necessary. III Defendants and International contend that notwithstanding the
broad language of the act, the Legislature did not effectuate
this avowed intent in section 21151. They point to the use of the
word "project" and the clause that follows it --
"they [i.e., local governmental agencies] intend to carry
out." Defendants and International maintain that in this
context "project" is coterminous with "public
works." As noted previously, the EQA does not attempt to define
"project." Because the legislative intent provisions
dictate that we give a broad interpretation to the act's
operative language, we begin from that vantage point. Once a
particular legislative intent has been ascertained, it must be
given effect "'even though it may not be consistent with the
strict letter of the statute.'" (Dickey v. Raisin Proration
Zone No. 1 (1944) 24 Cal.2d 796, 802 [151 P.2d 505, 157 A.L.R.
324].) As we stated nearly a half century ago in In re Haines
(1925) 195 Cal. 605, 613 [234 P. 883]: "'The mere literal
construction of a section in a statute ought not to prevail if it
is opposed to the intention of the legislature apparent by the
statute; and if the words are sufficiently flexible to admit of
some other construction it is to be adopted to effectuate that
intention. The intent prevails over the letter, and the letter
will, if possible, be so read as to conform to the spirit of the
act.'" Our task then is to determine whether the word
"project" is "sufficiently flexible" so as to
effectuate the broad legislative intent that private activities
should be brought within the ambit of the act. We may not, of
course, give an unreasonable construction to the statute. (See
Cedars of Lebanon Hosp. v. County of L. A. (1950) 35 Cal.2d 729,
735 [221 P.2d 31]; Dept. of Motor Vehicles v. Ind. Acc. Com.
(1948) 83 Cal.App.2d 671, 677 [189 P.2d 730].) In interpreting "project" our task has been made
difficult both by the dictionary definition of the word and the
use of "project" and similar terms in the act itself.
Webster defines project as a "plan or design . . . scheme .
. . proposal . . . ." (Webster's New Internat. Dict. (3d ed.
1961) p. 1813.) Such synonyms provide little interpretative aid.
Furthermore the act itself refers to "projects" in some
instances (see, e.g., § § 21100, 21150, 21151) and to
"actions" and "proposals" in other instances
(see, e.g., § 21100, subds. (a), (b), (d), (f)), devising no
neat categories in which to place the several similar terms. With this in mind, we resort to the rule declared in People ex
rel. S. F. Bay etc. Com. v. Town of Emeryville (1968) 69 Cal.2d
533, 543-544 [72 Cal.Rptr. 790, 446 P.2d 790]: A principle
"which must be applied in analyzing the legislative usage of
the word 'project,' is that 'the objective sought to be achieved
by a statute as well as the evil to be prevented is of prime
consideration in [the word's] interpretation, and where a word of
common usage has more than one meaning, the one which will best
attain the purposes of the statute should be adopted, even though
the ordinary meaning of the word is enlarged or restricted and
especially in order to avoid absurdity or to prevent
injustice.'" Since neither the dictionary definition nor the
EQA itself provides us with a tool to use in interpreting
"project" we turn to the National Environmental Policy
Act (42 U.S.C. § 4321 et seq.) for guidance. The National Environmental Policy Act (NEPA) was signed into
law January 1, 1970. Interim guidelines written by the
President's Council on Environmental Quality were promulgated on
April 30, 1970. (35 Fed.Reg. 7390.) (They were superseded by the
final federal guidelines on April 23, 1971 (36 Fed.Reg. 7724).)
The EQA was passed by the Legislature on August 21, 1970
(Assembly Final Calendar (1970 Reg. Sess.) at p. 637), and was
signed by the Governor on September 18, 1970 (id.). Not only does
the timing and the titles of the two acts tend to indicate that
the EQA was patterned on the federal act, the key provision of
the two acts, the environmental impact report, is the same.
(Compare 42 U.S.C. § 4332, subd. (2)(C) with Pub. Resources
Code, § 21100; see also Pub. Resources Code, § § 21101, 21102,
21105, 21150, 21151.) Indeed, much of the phraseology of the EQA
is either adopted verbatim from or is clearly patterned upon the
federal act. n4 As one commentator has observed, the EQA is
"much like the Federal NEPA." (Powell, The Courts as
Protectors of the Environment (1972) 47 L.A. Bar Bull. 215, 218.)
Accordingly, in construing "project" in the EQA, the
definition of that word in the federal act and regulations
becomes relevant. It is significant to note, in this regard, the
Court of Appeals for the District of Columbia has emphasized that
in construing the federal act the judicial role is active and
that the NEPA must be interpreted broadly. (See Calvert Cliffs'
Coord. Com. v. United States A. E. Com'n, supra, 449 F.2d 1109,
1111.) This is consonant with the mandate of the California
Legislature that the EQA be given a liberal construction. Section 102 of the NEPA, the act's principal substantive
provision, uses the word "action" as opposed to
"project." (42 U.S.C. §4332, subd. (2)(C).) The
Council on Environmental Quality first defined "action"
in the interim guidelines it issued some four months prior to the
enactment of the EQA. In view of the similarity between the
federal and state acts, the Legislature obviously was aware of
the federal definitions when the EQA was passed. (Cf. §98,
Assem. Bill 681, a bill which would add §21109 to the Pub.
Resources Code, introduced Mar. 2, 1972.) Accordingly, the
definitions promulgated by the Council on Environmental Quality
are helpful to an understanding of the subsequent California use
of the word "project." The interim guidelines,
ultimately adopted without significant change insofar as relevant
here in the final guidelines, provide the following:
Arguably "actions" is broader than
"projects," even though the EQA tends to use the two
words interchangeably in section 21100.5 However, it
is crucial that "actions," under the federal
guidelines, is divided into three categories, one of which is
"projects." It is under "projects" as a
subclass of "actions" that "lease, permit,
license, certificate, or other entitlement for use" is
included.6
In view of the relationship between the two acts and the fact
that both are subject to a broad judicial interpretation, it is
manifest that the word "project" as used in section
21151 and other provisions of the EQA includes the issuance of
permits, leases and other entitlements. Accordingly, we hold that
in the case at bar defendants were required to consider whether
the proposed condominium construction "may have a
significant effect on the environment" ( §21151; see fn. 9,
infra) and, if so, to prepare an environmental impact report
prior to the decision to grant the conditional use and building
permits. (Cf. Greene County Planning Board v. Federal Power Com'n
(2d Cir. 1972) 455 F.2d 412, 418-421.) IV Defendants and International contend that since
"project" is followed by the phrase "they intend
to carry out," section 21151 can only be interpreted as
referring to a public works type project "to be carried
out," i.e., constructed, acquired or developed, by the
government. However, having interpreted the word
"project" broadly to include private activity for which
a permit is necessary, certainly the granting or denying of a
permit is an act which a governmental authority "carries
out." Accordingly, we construe the phrase following
"project" to mean only that before an environmental
impact report becomes required the government must have some
minimal link with the activity, either by direct proprietary
interest or by permitting, regulating, or funding private
activity.7
Moreover, to limit the operation of the EQA solely to what are essentially public works projects would frustrate the effectiveness of the act. It is undisputed that the Legislature intended that environmental considerations play a significant role in governmental decision-making (see § § 21000, 21001) and that such an intent was not to be effectuated by vague or illusory assurances by state and local entities that the effect of a project on the environment had been "taken into consideration."8 To read "project they intend to carry out" -- the cornerstone of many of the act's provisions -- as limited to public works projects would render meaningless much of the legislative intent sections that contemplate regulation of private activity, for none of the act's other substantive provisions more clearly relate to private actions. And to exclude all private activity from being covered by the act would be inconsistent with the broad legislative intent appearing therein. More specifically, if private activities for which a permit is required were exempted from the operation of the act, projects with admittedly deleterious ecological consequences would be covered only if construction, acquisition or other development were undertaken by the governmental authority but not if the same authority allowed private enterprise to engage in the identical activity. The incongruity of such interpretation would be most vivid in the less populous counties, such as Mono, which because of limited economic capabilities might never engage in massive public works projects significantly affecting the environment, but could achieve the same result by permitting, licensing, or partially funding private activities.
To further demonstrate the paradoxical position advanced by
defendants and International, generally the sparsely populated
counties in which massive public works projects are less likely
because of the financial burden are the counties with significant
natural resources and wildlife most in need of protection. While
the act applies to large and small counties, and to urban and
rural areas alike, certainly the protection afforded by the EQA
would be substantially diminished in an area where it may be most
needed if the act were to be interpreted to cover only public
works projects. Defendants, nevertheless, assert that the legislative history
of the EQA indicates that the word "project" does not
apply to the issuance of a permit. They cite the original
language of AB 2045, as introduced in the Assembly on April 21,
1970. At that time, section 21151 would have applied to
"[all] local governmental agencies . . . for any program
carried out by them." (Italics added.) An amendment on May
26 made the bill more specific, setting up three classifications
of local governmental entities: (1) the legislative body of all
cities and counties with a conservation element of a general
plan; (2) local governmental units without a conservation
element; and (3) all other local governmental agencies. The
language "for any program carried out by them" was
retained for all three categories except for minor grammatical
changes. A subsequent amendment introduced in the Senate on August 4,
1970, distinguished between the three categories by making the
act operative for group one entities for "any project or
change in zoning they intend to carry out"; and for group
two entities for "any project they intend to carry
out"; yet retaining for group three the "any program
they intend to carry out" wording. (Italics added.) On
August 14, the proposed section 21151 was amended once again,
this time eliminating altogether the second category; separating
the "project" and "change in zoning"
provisions of the first category into two sentences instead of
one; and changing "program" in the third category to
"project." The final amendment, on August 20, deleted
the sentence pertaining to "change in zoning" and
retained the "project" requirement for the categories
designated above as groups one and three. The second category was
not reinstituted. It was with this language that the bill became
law. It is possible that these intricate semantic changes enroute
to final enactment were not without significance. Defendants
insist that the amending process has been a narrowing one. We do
not agree. Leaving aside the several intermediate alterations, we
note in essence the change was from "program" to
"project." It may be fairly said that the former
entails more general planning, and policy and procedure-making,
similar to that described in the NEPA guidelines. (See 35
Fed.Reg. 7390, 7391, 5(a)(iii); see also 36 Fed.Reg. 7724,
5(a)(iii), both supra.) Conversely, "project" appears
to emphasize activities culminating in physical changes to the
environment, changes which were of paramount interest to the
Legislature. (Cf. § 21102.) It appears that the Legislature in
its amendments to Assembly Bill 2045 was influenced by the
issuance of the interim federal guidelines published subsequent
to the introduction of Assembly Bill 2045 but prior to its final
passage. Those guidelines used the word "project"
rather than "program." Thus the Legislature appears to
have intended, in order to prevent confusion, to use the same
broad terminology in effect under federal law rather than to
adopt an entirely different set of phrases of its own. International next insists that section 21151 does not apply
to private activity because of its clause that requires local
agencies to submit an environmental impact report "to the
appropriate local planning agency as part of the report required
by Section 65402 of the Government Code." Section 65402
provides that counties, cities and local agencies shall submit a
report to planning agencies pursuant to proposed acquisition of
real property or construction of public buildings and structures
so that a determination can be made as to whether the proposal is
consistent with their respective general plans. (See Gov. Code,
§ 65100 et seq., especially § § 65350-65402.) It is contended
that since the Government Code provision applies only to
development or acquisition by municipal entities, it would be
illogical to require an impact report on private activities to be
filed in conjunction with some mythical report on a public works
project. Accordingly, they argue, section 21151 must apply only
to the type of public works projects contemplated by Government
Code section 65402 and not to private activity for which a permit
is necessary. The reading proposed by International elevates what appears to be simply a directory measure to far greater significance than is warranted. We have reviewed the broad legislative intent of the EQA and the close relationship between that act and the federal NEPA. Both compel the conclusion that private activities involving the issuance of a permit are within the scope of the EQA. The use of these reports by the planning agencies mentioned in Government Code section 65402 is secondary to the principal purpose of section 21151, which is to compel local governments to study and record the environmental implications of proposed activities before they are acted upon. This broad purpose cannot be frustrated by procedural details surrounding filing of the reports. The NEPA provides that copies of all impact statements
prepared by the various federal agencies are to be made available
to the Council on Environmental Quality, among others, and must
"accompany the proposal through the existing agency review
processes." (42 U.S.C. § 4332 (2)(C).) The EQA similarly
directs the Office of Planning and Research to "coordinate
the development of objectives, criteria, and procedures to assure
the orderly preparation and evaluation of environmental impact
reports . . . ." ( § 21103.) The act also requires
consultation with the various governmental entities ( § §
21103, 21104) and directs the impact reports be included "as
a part of the regular project report used in the existing review
and budgetary process" ( § 21105). On the basis of similar directory provisions in the EQA and NEPA, the command in section 21151 that environmental impact reports be submitted with the reports required by section 65402 of the Government Code is not meant to limit the breadth of the section. Instead, it is an attempt to integrate such impact reports into any existing reporting procedure in order to avoid unnecessary duplication, confusion and cost. Accordingly, projects for which a Government Code section 65402 report must be filed must also contain an environmental impact report. Those projects, such as that involved here, for which no section 65402 report is necessary, must nonetheless be preceded by an environmental impact report pursuant to section 21151. n9 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - -
- - - - - - - - - n9 "Statutes," wrote Justice Frankfurter in United
States v. Shirey (1959) 395 U.S. 255, 260 [3 L.Ed.2d 789, 793, 79
S.Ct. 746], "are not inert exercises in literary
composition. They are instruments of government, and in
construing them 'the general purpose is a more important aid to
the meaning than any rule which grammar or formal logic may lay
down.' [Citation.] This is so because the purpose of an enactment
is embedded in its words even though it is not always
pedantically expressed in words." Judge Learned Hand
described interpretation of statutes as "the art of
proliferating a purpose." (Brooklyn Nat. Corp. v.
Commissioner of Int. Rev. (2d Cir. 1946) 157 F.2d 450, 451.) We cannot, as respondents would have us do, indulge in an inert exercise, leaning heavily on isolated words and phrases and remaining oblivious to the express legislative intent to protect society against environmental blight. Nor are we impressed with the significance of legislative proposals introduced in March of 1972, long after this permit was issued and the lawsuit instituted, since here the post facto legislative amendments not only express the interpretation of "project" which we have declared, but expand the act to apply beyond "projects" to "major actions." - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - -
- - - - - - - - - V Aside from the question of the proper construction of the
Environmental Quality Act the parties make several other
contentions to which we now turn. Defendants and International first assert that plaintiffs did
not properly exhaust their administrative remedies prior to
seeking judicial relief. Section 1209 of the Mono County Zoning
Ordinance provides: "B. Any interested person . . . not
satisfied with the decision of the Commission on any use permit .
. . may, within fifteen (15) days . . ., appeal in writing to the
Board [of Supervisors]." Neither plaintiff Friends of
Mammoth nor plaintiff Griffin filed an appeal pursuant to section
1209. An appeal was filed by individuals Frederick Schaeffer,
Richard Young, Donald J. LaCasse and Robert H. Meyer, all
property owners in the Mammoth Lakes area. Plaintiffs allege that Messrs. Schaeffer and Young are members
of the class represented by plaintiff Griffin in this class
action. Defendants and International do not controvert this
allegation. Instead they argue that Friends of Mammoth and
Griffin, and not members of the representative class, must
personally exhaust their administrative remedies. Otherwise, they
contend, a plaintiff could avoid the exhaustion doctrine simply
by including within the class one individual who had pursued his
administrative remedies but did not bring judicial action as a
named plaintiff. This assertion proves too much. First of all, the fact that an
individual pursued administrative remedies would not, as a matter
of course, entitle him to be included in a subsequent class
action. Exhaustion of administrative remedies does not
necessarily provide the "well defined community of interest
in the questions of law and fact involved affecting the parties
to be represented" required in class actions. (Daar v.
Yellow Cab Co. (1967) 67 Cal.2d 695, 704 [63 Cal.Rptr. 724, 433
P.2d 732]: see also 3 Witkin, Cal. Procedure (2d ed. 1971)
Pleading, § 181, at pp. 1853-1854.) However, in most instances
those individuals who have a sufficient interest in the subject
matter to seek administrative review will possess the community
of interest with others to justify inclusion in the group
represented in a subsequent class action. But this conclusion
defeats the very argument defendants advance: that the Board is
entitled to learn the contentions of interested parties before
litigation is instituted. If those unnamed plaintiffs in the
class suit have previously sought administrative relief they will
have expressed the position of the representative plaintiff in
the class suit, and the Board will have had its opportunity to
act and to render litigation unnecessary, if it had chosen to do
so. Messrs. Schaeffer and Young apparently desire to be
represented by plaintiff Griffin. They have not sought to be
excluded from the class. (Cf. Vasquez v. Superior Court (1971) 4
Cal.3d 800, 821 [94 Cal.Rptr. 796, 484 P.2d 964].) Since two
plaintiffs, albeit unnamed plaintiffs, have previously appeared
before the Board, the policies of the exhaustion doctrine have
been fulfilled. Under these circumstances, the doctrine cannot be
employed to bar a suit by a class not organized at the time of
the administrative appeal. Defendant Board has had the
opportunity to hear arguments of interested property owners
Schaeffer and Young, along with two others who also appealed. Now
several interested property owners, including Schaeffer and
Young, represented here by named plaintiff Griffin, seek a
judicial determination of the legality of that decision. Nothing
more could effectuate the policy of the exhaustion doctrine. To
require plaintiff Griffin to have personally appeared, in
addition to the others, or to require Schaeffer and Young to be
named plaintiffs (cf. La Sala v. American Sav. & Loan Assn.
(1971) 5 Cal.3d 864, 872 [97 Cal.Rptr. 849, 489 P.2d 1113]) would
serve no additional useful purpose. Defendants and International next insist that plaintiffs
failed to seek timely relief from the decision of defendant Board
giving final approval of the permit. Section 1213 of the zoning
ordinance provides that decisions of the Board "shall be
final for all purposes unless a court review thereof is sought
within thirty (30) days after such decisions become final."
Defendant Board upheld the decision of defendant Commission on
June 14, 1971. On July 12, within the 30-day period, plaintiffs
sought a writ of administrative mandamus in the Court of Appeal,
Third District. On July 15, the Court of Appeal denied the writ
but "without prejudice to the filing of proceedings in the
Superior Court." On July 19, 35 days after the decision by
the Board, plaintiffs filed an identical petition for a writ of
administrative mandamus in superior court. Defendants and
International assert that because the period between June 14 and
July 19 is greater than the 30-day allotment provided by
ordinance, plaintiffs cannot seek judicial review. We reject this
contention. It must be noted at the onset that judicial relief was
"sought" (in the words of the ordinance) in the Court
of Appeal within 30 days of the Board's decision. Relief was
denied there but it was denied "without prejudice."
This term usually indicates that no decision on the merits has
been made: "The rule is well settled that a denial by this
or the appellate court of an application for a writ without
opinion 'is not res judicata of the legal issues presented by the
application unless the sole possible ground of the denial was
that the court acted on the merits, or unless it affirmatively
appears that such denial was intended to be on the merits.'"
(Hagan v. Superior Court (1962) 57 Cal.2d 767, 770 [22 Cal.Rptr.
206, 371 P.2d 982]; see Imperial Land Co. v. Imperial Irrigation
Dist. (1913) 166 Cal. 491, 492 [137 P. 234].) Defendants and International contend that denying the writ
without prejudice does not toll or extend the statute of
limitations of 30 days. Article VI, section 10, of the state
Constitution gives original jurisdiction to the Supreme Court,
Courts of Appeal, superior courts, and their judges in
"proceedings for extraordinary relief in the nature of
mandamus, certiorari, and prohibition." Rule 56(a) provides:
"If the petition might lawfully have been made to a lower
court in the first instance, it shall set forth the circumstances
which, in the opinion of the petitioner, render it proper that
the writ should issue originally from the reviewing court . . .
." In his comments to the rule, Witkin states: "In form
this is a rule of pleading; in effect, however, it expresses the
policy of the Supreme Court and courts of appeal to refuse to
exercise their original jurisdiction in the first instance,
unless the circumstances are exceptional." (5 Witkin, Cal.
Procedure, supra, Extraordinary Writs, § 114, at p. 3889; see
also Cohen v. Superior Court (1968) 267 Cal.App.2d 268, 270 [72
Cal.Rptr. 814].) The foregoing policy seeks to encourage the filing of petitions for extraordinary writs in the superior court. It does not follow, however, when such policy is effectuated by an appellate court order denying
relief without prejudice that petitioners should be denied a
hearing on the merits by a myopic reading of the abbreviated
statute of limitations. An equally strong public interest was
formulated by the court in Morgan v. Somervell (1940) 40
Cal.App.2d 398, 400 [104 P.2d 866]: "It is in furtherance of
a policy frequently exemplified in legislative acts to enable a
party who, like the plaintiffs in the present proceeding, has
seasonably filed a cause of action, to try it upon its merits,
notwithstanding defects in the form or substance of pleadings,
error in the remedy sought, or mistake in the tribunal
invoked." Morgan involved the transfer of a cause of action
pursuant to Code of Civil Procedure section 396. Thus it is
factually distinguishable from the case at bar. The policy
explicated in Morgan, however, applies here. Defendants and
International, having been put on notice of the litigation, were
not prejudiced in any manner by the Court of Appeal's denial of
the petition and the subsequent prompt refiling in superior
court. We conclude that plaintiffs complied with the statute of
limitations by filing a petition for writ of mandamus in the
Court of Appeal within the statute of limitations contained in
the Mono County Zoning Ordinance and upon denial without
prejudice by refiling promptly in the superior court. We now turn to two final contentions raised by plaintiffs.
Plaintiffs insist that the granting of the permit must be set
aside on the following grounds in addition to defendants' failure
to comply with the EQA: (1) defendants have not made written
findings as required by local ordinance; (2) the evidence did not
support the granting of the permits and they must be set aside as
a matter of law. Section 1201 of the Mono County Zoning Ordinance provides, in
pertinent part: "Use Permits. Use permits may be granted by
the Planning Commission only when it is found that. . . ."
(Italics added.) The question involved here, then, is whether the
use of the word "found" requires specific written
findings. In Schumm v. Board of Supervisors (1956) 140 Cal.App.2d
874, 878 [295 P.2d 934], the court was required to interpret an
ordinance which provided: "'In recommending the approval of
any use permit the Planning Commission shall find . . . .'"
The court held that written findings were not required. (140
Cal.App.2d at pp. 880-881.) However, in Broadway, Laguna etc.
Assn. v. Board of Permit Appeals (1967) 66 Cal.2d 767 [59
Cal.Rptr. 146, 427 P.2d 810], we said that an ordinance which
required the zoning administrator to specify "in his
findings the facts which establish . . ." (66 Cal.2d at p.
771, fn. 3) necessitated written findings and that the normal
presumption of necessary findings "does not apply to
agencies which must expressly state their findings and must set
forth the relevant supportive facts." (66 Cal.2d at p. 773;
cf. Siller v. Board of Supervisors (1962) 58 Cal.2d 479, 484 [25
Cal.Rptr. 73, 375 P.2d 41].) The proper interpretation of ordinances using the word
"findings" or "found" naturally depends on
the intent of the body adopting those ordinances. In light of the
statewide concern expressed by the Legislature for written
findings in the field of ecology, as evidenced by the EQA's
impact report, the proper construction of the words
"findings" or "found" requires a written
statement of the supportive facts on which the agency has made
its decision. Since this report involves the assessment of a
myriad of elements (see § 21100) it obviously includes all those
facts which would be contained in written findings if such
findings were required by the ordinance. Accordingly, the written
report affords plaintiffs the same benefits that would be
achieved by written findings pursuant to the ordinance, and we
therefore hold in this case no additional written findings in the
orthodox sense are required. Plaintiffs finally contend that there was insubstantial evidence to support the issuance of the permits and that they must be set aside as a matter of law. In view of our conclusion that the EQA applies to private activity, and the fact that such a holding will necessitate further proceedings by the defendants, we find it unnecessary to analyze the weight of the evidence. VI We emphasize that by the terms of the act an environmental
impact report is required only for a project "which may have
a significant effect on the environment" ( § 21151; see
also § § 21100, 21101, 21102, 21150). In the case at bar the
issue whether the proposed project of International might have
such an effect was not resolved by either the defendants or the
superior court, presumably because it was believed the project
was not covered by the act in any event. It would be
inappropriate for this court to determine the issue in the first
instance, and we therefore leave the matter to the defendants'
future proceedings. We recognize that the reach of the statutory phrase,
"significant effect on the environment," is not
immediately clear. To some extent this is inevitable in a statute
which deals, as the EQA must, with questions of degree. Further
legislative or administrative guidance may be forthcoming on this
point among others. But the courts, for their part, are limited
to discharging their constitutional function of deciding the
cases that are brought before them. As with other questions of
statutory interpretation, the "significant effect"
language of the act will thus be fleshed out by the normal
process of case-by-case adjudication. Two general observations, nevertheless, may be made at this
time. On the one hand, in view of the clearly expressed
legislative intent to preserve and enhance the quality of the
environment ( § § 21000, 21001), the courts will not
countenance abuse of the "significant effect"
qualification as a subterfuge to excuse the making of impact
reports otherwise required by the act. In this connection we
stress that the Legislature has mandated an environmental impact
report not only when a proposed project will have a significant
environmental effect, but also when it "may" ( § §
21101, 21150, 21151) or "could" ( § § 21100, 21102)
have such an effect. On the other hand, common sense tells us
that the majority of private projects for which a government
permit or similar entitlement is necessary are minor in scope --
e.g., relating only to the construction, improvement, or
operation of an individual dwelling or small business -- and
hence, in the absence of unusual circumstances, have little or no
effect on the public environment. Such projects, accordingly, may
be approved exactly as before the enactment of the EQA. In their petition for rehearing respondents and amici curiae
assert that in the period between November 23, 1970, when the EQA
went into effect, and September 21, 1972, the date of our
decision herein, governmental agencies approved private projects,
now either in progress or completed, without requiring the
preparation of environmental impact reports, in the erroneous but
good faith belief that such projects were exempt from the act. To
avoid possible hardship to parties who have relied on permits
thus issued, we are asked to make our decision prospective only. We see no need for such a drastic step. In the minority of
cases in which impact reports should have been prepared, the
appropriate statutes of limitations will govern. As noted herein
(p. 268, ante), the Mono County Zoning Ordinance declares a
30-day statute of limitations for seeking judicial review of a
decision of defendant Board. If this provision is typical of such
ordinances, very few if any of the projects approved during the
22-month period in question will still be subject to attack. And
if a substantially longer statute of limitations is provided in
any case, similar protection may be afforded by invoking the
doctrine of laches. We are also asked to stay the effective date of our decision
in order to allow additional time, inter alia, for governmental
agencies to draw up guidelines and develop procedures for
applying the EQA to private projects as defined herein. Again we
perceive no real necessity for such a departure from normal
practice. In extraordinary circumstances we have authorized a
delay in the effectiveness of a decision of this court when its
immediate implementation would have been virtually impossible.
(See, e.g., Young v. Gnoss (1972) 7 Cal.3d 18, 28 [101 Cal.Rptr.
533, 496 P.2d 445]; Serrano v. Priest (1971) 5 Cal.3d 584,
618-619 [96 Cal.Rptr. 601, 487 P.2d 1241].) For the reasons given
above, however, we expect that the majority of the private
projects for which governmental approval will be sought in the
future will present no risk of significant environmental effect
and therefore will not require impact reports in any event. With
respect to the remainder, we point out that the EQA has been in
effect since November 23, 1970, and many of the questions here
raised as to the method of complying with the act in the case of
private projects could also have arisen during the past 22 months
in the case of public projects. We must therefore presume that
governmental agencies charged with responsibilities under the act
have been performing their duties (Civ. Code, § 3548) and can
now draw upon their planning and experience in the public sector
to aid in solving whatever problems they may have in the private
sector. To the extent such planning and experience prove
inadequate to the task at hand, we do not doubt that with the
good will and cooperation of all concerned appropriate new
guidelines and procedures can be promptly devised. And if some
delays nevertheless ensue in processing applications for certain
private projects which threaten to have a significant effect on
the environment, it should be remembered that such delays are
implicit in the Legislature's primary decision to require
preparation of a written, detailed environmental impact report in
precisely those cases. The order appealed from is reversed, with directions to grant
a peremptory writ of mandate ordering defendants to set aside the
issuance of the conditional use and building permits. DISSENT: SULLIVAN, J. I dissent. The opinion of the majority,
discarding settled principles of statutory construction and
distorting the plain meaning of common English words, adopts an
interpretation of the pertinent section of the Environmental
Quality Act of 1970 (EQA) (Pub. Resources Code, § §
21000-21151)1 which in my opinion is not legally
supportable. The desired end arrived at by the majority cannot
justify such a means. "This court has no power to rewrite
the statute so as to make it conform to a presumed intention
which is not expressed." (Seaboard Acceptance Corp. v. Shay
(1931) 214 Cal. 361, 365 [5 P.2d 882]; italics added.)
The crucial question before us is, of course, whether Mono
County must prepare an environmental impact report, pursuant to
section 21151, before it grants a conditional use or building
permit for International's proposed development at Mammoth Lakes.
The answer to this question depends in turn on the resolution of
a problem of statutory construction -- whether the phrase
"any project they intend to carry out" ( § 21151)
includes within its scope a private development for which a
governmental permit is required. As will appear, I conclude that
the applicable rules of interpretation compel a negative answer. Section 21151 provides: "The legislative bodies of all
cities and counties which have an officially adopted conservation
element of a general plan shall make a finding that any project
they intend to carry out, which may have a significant effect on
the environment, is in accord with the conservation element of
the general plan. All other local governmental agencies shall
make an environmental impact report on any project they intend to
carry out which may have a significant effect on the environment
and shall submit it to the appropriate local planning agency as
part of the report required by Section 65402 of the Government
Code." In order to construe the statutory phrase "any project
they intend to carry out," it is fundamental that the court
"should ascertain the intent of the Legislature so as to
effectuate the purpose of the law." (Select Base Materials
v. Board of Equal. (1959) 51 Cal.2d 640, 645 [335 P.2d 672] and
cases there cited.) Our endeavor must be to produce a
"reasonable result consistent with legislative purpose . . .
." (E.g., Kusior v. Silver (1960) 54 Cal.2d 603, 620 [7
Cal.Rptr. 129, 354 P.2d 657].) We pointed out many years ago that in ascertaining the will of
the Legislature, "[the] court turns first to the words
themselves for the answer. It may also properly rely on extrinsic
aids . . . . Primarily, however, the words, in arrangement that
superimposes the purpose of the Legislature upon their dictionary
meaning, stand in immobilized sentry, reminders that whether
their arrangement was wisdom or folly, it was wittingly
undertaken and not to be disregarded. [ para. ] . . . If the
words of the statute are clear, the court should not add to or
alter them to accomplish a purpose that does not appear on the
face of the statute or from its legislative history. [Citations.]
Certainly the court is not at liberty to seek hidden meanings not
suggested by the statute or by the available extrinsic aids.
[Citation.]" (People v. Knowles (1950) 35 Cal.2d 175,
182-183 [217 P.2d 1]; see also In re Miller (1947) 31 Cal.2d 191,
198-199 [187 P.2d 722]; Code Civ. Proc., § 1858.) In giving effect to this canon of literal construction we must interpret statutes "according to the usual, ordinary import of the language employed in framing them." (In re Alpine (1928) 203 Cal. 731, 737 [265 P. 947, 58 A.L.R. 1500]; see also Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918 [80 Cal.Rptr. 89, 458 P.2d 33]; Chavez v. Sargent (1959) 52 Cal.2d 162, 203 [339 P.2d 801].) The sweep of the statute should not be enlarged by introduction of language which the Legislature has overtly left out. (E.g., Keeler v. Superior Court (1970) 2 Cal.3d 619, 632 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420].) I recognize, of course, that an enactment must be interpreted
so as to harmonize its various parts, by considering the
particular clause or section in the light of the statutory
framework as a whole (Select Base Materials v. Board of Equal.,
supra, 51 Cal.2d 640, 645; Stafford v. L.A. etc. Retirement Board
(1954) 42 Cal.2d 795, 799 [270 P.2d 12]); but a special or
particular provision qualifies the general, especially where the
provisions are inconsistent and cannot be reconciled (People v.
Western Air Lines, Inc. (1954) 42 Cal.2d 621, 637 [268 P.2d 723];
Rose v. State of California (1942) 19 Cal.2d 713, 723-724 [123
P.2d 505]; In re Marquez (1935) 3 Cal.2d 625, 629 [45 P.2d 342];
Code Civ. Proc., § 1859) and where the particular provision is
later in point of position (Hartford Acc. etc. Co. v. City of
Tulare (1947) 30 Cal.2d 832, 835 [186 P.2d 121]). Applying these general principles in construing the phrase
"any project they intend to carry out," I begin with
the words themselves. Since no definitions are provided in the
EQA, our first guide is the dictionary. Webster's Third
International Dictionary, Unabridged (1963) defines the noun
"project" in pertinent part as "(1): a specific
plan or design . . . a scheme . . . (3): a planned undertaking:
[as] (a): a definitely formulated piece of research . . . (b)
(1): an undertaking devised to effect the reclamation or
improvement of a particular area of land" (at p. 1813). The
verb "intend" is defined in relevant part thus:
"(2) (a) (1): to have in mind as a design or purpose: . . .
(2) . . . as an object to be gained or achieved" (id. at p.
1175). The verb "carry out" is defined thus: "(1):
to put into execution (2): to bring to a successful issue (3): to
continue to an end or stopping point." (Id. at p. 344.) Putting together these definitions, the statutory phrasing at
issue takes on meaning: any undertaking, designed to be put into
execution and successfully completed. Moreover, the pronoun
"they" in the phrase "any project they intend to
carry out" sharpens the significance of the words in the
context of the case at bench. "They," of course, refers
back to "legislative bodies of all cities and counties"
in the first sentence of section 21151, and to "[all] other
local governmental agencies" in the second sentence.2
In other words, under the first sentence of the section,
legislative bodies of cities and counties which have an
officially adopted conservation element of a general plan must
make a finding that any undertaking they propose to put into
execution which may have a significant effect on the environment
"is in accord" with such conservation element. Under
the second sentence, all other local governmental agencies (i.e.,
cities and counties which do not have an officially adopted
conservation element)3 must make an environmental
impact report on any undertaking they propose to put into
execution which may have a significant effect on the environment.
The meaning of this language is plain and clear. Local
agencies (i.e., cities and counties) must make an environmental
finding (to use a shorthand expression) or an environmental
impact report, as the case may be, in connection with any
proposed project which the local agency itself directly plans to
put into effect or execute. To put it another way, such a finding
or report is required only with respect to public works projects
of local agencies (as described in Gov. Code, § 65401). Nowhere
in section 21151 do we find any language to the effect that local
agencies shall make such findings or reports with respect to
private projects for which they may issue permits, licenses or
other regulations. Certainly, if this had been the intention of
the Legislature, it could have very easily expressed such
intention in a few simple words, coordinated with the plain
meaning of the words it had already employed. This conclusion is buttressed by additional language in the
second sentence of section 21151, to the effect that an impact
report on "any project . . . which may have a significant
effect on the environment" shall be submitted "as part
of the report required by section 65402 of the Government
Code." Section 65402 is found in chapter 3 ("Local
Planning") of title 7 ("Planning") of the
Government Code. It provides in brief that neither a county nor a
city shall acquire real property for public purposes nor
construct a public building or structure without making a report
to the local planning agency so that the latter may ascertain
whether the scheme conforms to its general plan. Since section
21151 environmental impact reports are to be incorporated in
reports prepared pursuant to Government Code section 65402, it
would make no sense for a section 21151 report to apply to a
"project" beyond the scope of the Government Code
section. Inasmuch as section 65402 applies only to public
acquisition, development, or construction, so too must section
21151 apply only to public works projects, and not as well to
private activity, carried out by a developer like International.
A contrary result would lead to the administrative illogic of a
local planning agency processing reports on activities beyond its
statutory purview. In sum, I conclude that the environmental finding or impact
report requirement of section 21151 is not applicable to private
activity for which a governmental permit is necessary, as opposed
to "projects" carried out by public entities. I reach
this result merely by analysis of the plain meaning of the
statutory words "any project they intend to carry out"
in the context of the section in which they are found. (See
People v. Knowles, supra, 35 Cal.2d 175, 182-183; In re Alpine,
supra, 203 Cal. 731, 737.) The above analysis of the plain meaning of the words of
section 21151 is supported by the Legislature's placement of that
section in the statutory scheme of the EQA as a whole. Section
21151 is located in chapter 4 of the EQA, which the Legislature
has entitled "Local agencies." Section 21151 is the
only operative provision of the chapter -- and of the entire act
-- setting forth the circumstances under which local agencies are
required to adopt environmental findings or impact reports.
Nowhere within chapter 4 is there mention of private activity or
intent to regulate it. Similarly, chapter 3 of the act, labeled
"State Agencies, Boards and Commissions," sets forth
with almost identical wording requirements of environmental
impact reports for projects that state agencies, boards, and
commissions "propose to carry out which could have a
significant effect on the environment of the state." ( §
21100.) Section 21100, the operative provision affecting state
agencies, again does not indicate any intent to regulate private
activity, nor can such indication be found anywhere else within
chapter 3. Chapter 2 merely states the short title of the act. Only in chapter 1, which the Legislature has merely labeled
"Policy," is there any reference to "private
interests," "individuals," or
"corporations" ( § 21000, subds. (f) and (g)) or the
general need to "regulate" their activities ( § 21000,
subd. (g)). However, those lofty and imprecise references to
private activity in chapter 1 pale in importance when compared
with the fact of their omission in chapters 3 and 4. Since the
latter chapters contain the only operative provisions of the act,
their omission of any reference to private "projects"
(e.g., for which a governmental permit is necessary) is
significant. Thus it is abundantly clear that the Legislature simply did
not intend either section 21100 (environmental impact report on
projects to be carried out by state agencies) or section 21151
(environmental impact report on projects to be carried out by
local agencies) to apply to projects to be carried out by private
persons or corporations. That clarity is apparent in the
structure and framework of the EQA, the plain meaning of its
operative language, and a textual examination of the section at
issue. The majority make no attempt to interpret those words by
accepted rules of literal construction. Instead they draw
lavishly from general findings and declarations of the
Legislature (concerning maintenance of environmental quality ( §
21000) and the policy of the state in that respect ( § 21001)),
refer to similar language in federal law, and trace the course of
the EQA through the Legislature. In short, the majority, unable
to discover in the words of section 21151 any intent to cover
private projects, attempt to persuade us by the elaborate
reasoning referred to above, that in some way private projects
must be deemed to be included anyhow. I suggest that in this
venture they were completely unsuccessful. Plainly private
projects are not so included. The majority initially stress other sections of the EQA to
support enlargement of the obviously limited meaning of section
21151. Chief reliance is placed on sections 21000 and 21001,
which are said to "expressly set forth" the intent of
the Legislature. In particular the opinion quotes section 21000,
subdivision (g).4 This subdivision, together with
subdivisions (e) and (f) of section 21000 and subdivisions (d)
and (f) of section 21001, is employed to support the broad
proposition that "the Legislature intended to include the
permit-issuing process [for private projects] as a governmental
activity for which an environmental impact report is
required." (Ante, at p. 257.)
Such an attempt to infuse these general expressions into
section 21151 does not withstand scrutiny. Section 21151, setting
forth requirements for environmental findings or impact reports,
is the only section of the EQA with actual operative impact
insofar as local agencies are concerned, as the parties herein
recognize. It is found under a separate chapter 4, which has
special reference to local agencies. It is the very last section
of the act, separated by various intervening sections from the
general "intent" provisions of sections 21000 and
21001. It constitutes a particular, special provision within the
more general cast of the act as a whole. However commendable the general declarations of state policy
contained in sections 21000 and 21001, they exert no broadening
influence on the clearly limited language of section 21151. They
are impotent to make the clear words of that section say more
than they actually do. Indeed, the broad declarations of sections
21000 and 21001 are properly harmonized with the particular
operative provisions of sections 21100 (state projects) and 21151
(local governmental projects) by treating those particular
provisions as paramount to the general statements of the
preliminary sections. (Code Civ. Proc., § 1859.) My conclusion that section 21151 does not apply to private
projects is supported rather than refuted by the legislative
history of the act itself, as it passed from initial introduction
in the Assembly to final enactment. While the "general
intent" provisions of sections 21000 and 21001 were retained
virtually intact in the course of the legislative process, the
operative provision of section 21151 was significantly amended. When Assembly Bill 2045 was first introduced on April 2, 1970,
by members of the Assembly's Select Committee on Environmental
Quality, the proposed section 21151 provided as follows:
"All local governmental agencies shall conduct needed
environmental impact studies and shall consider alternative
methods for any program carried out by them which may have a
significant effect on the quality of the environment."
(Italics added.) By May 26, 1970, the proposed section 21151 had been almost
entirely rewritten, after referral to the Assembly Committee on
Natural Resources and Conservation. The bill was reintroduced and
passed by the Assembly on July 17, 1970. At that time proposed
section 21151 read as follows: "The legislative body of all
cities and counties which have an officially adopted conservation
element of a general plan shall make a finding that any program
they intend to carry out, which may have a significant effect on
the environment, is in accord with the conservation element of
the general plan. Local governmental units without an officially
adopted conservation element shall make environmental impact
reports on any program they intend to carry out, which may have a
significant effect on the quality of the environment. All other
local governmental agencies shall make an environmental impact
report on any program they intend to carry out which may have a
significant effect on the environment and shall submit it to the
appropriate local planning agency as a part of the report
required by Section 65402 of the Government Code." (Italics
added.) The bill was then sent to the Senate, where the Senate
Committee on Government Organization amended section 21151 again
by striking the first above reference to "program" and
replacing it with the words "project or change in
zoning," and by striking the second reference to
"program" and replacing it merely with the word
"project." 5
On August 14, 1970, section 21151 was amended again.6
Finally, and most significantly, section 21151 was again
amended, by deleting entirely the above second sentence referring
to the environmental effect of any "change in zoning."
Thus on August 20, 1971, the section read as it was finally
adopted and reads now: "The legislative bodies of all cities
and counties which have an officially adopted conservation
element of a general plan shall make a finding that any project
they intend to carry out, which may have a significant effect on
the environment, is in accord with the conservation element of
the general plan. All other local governmental agencies shall
make an environmental impact report on any project they intend to
carry out which may have a significant effect on the environment
and shall submit it to the appropriate local planning agency as
part of the report required by Section 65402 of the Government
Code." Contrary to the majority's claim, no special significance may
be attached to the intermediate amendments which may indeed
fairly be summarized as a change from "program" to
"project." That change is not nearly as clear or as
broadening as the majority make it out to be, since either
"program" or "project" may connote
"planning" or, on the other hand, actual physical
alterations in the environment. Nor is the analogy to the federal
guidelines under the National Environmental Policy Act (NEPA)
helpful in this instance, since, as will be explained, the
differences between the federal and state enactments are more
significant than the similarities in solving the present problem.
The truly important amendment, in my view, is the last one,
which deletes the requirement that any legislative body of a city
or county with a conservation element in its general plan make a
finding of environmental accordance with that element for any
"change in zoning" which it "intends to carry
out." In other words, after the amendment, and as enacted,
section 21151 requires the local body to find accordance with the
conservation element of its general plan only for a
"project" which it intends to carry out. In a strict
sense it is arguable that the change is inapplicable to Mono
County, since it did not have such conservation element at the
pertinent time; but the change is nevertheless meaningful to show
the narrowing process to which section 21151 was subjected in the
course of final enactment. The Legislature's obvious decision to
make the requirements of section 21151 inapplicable to local
zoning changes is especially important in the instant case, since
zoning amendments and changes are one of the classic means by
which a locality regulates private activity. The narrowing of
section 21151 in this manner strengthens the conclusion that the
Legislature did not intend the operative provisions of that
section to apply to private activity for which a governmental
permit is necessary, but intended them to apply only to public
works projects. I turn now to consider the majority's reliance upon the
federal act (NEPA) and the interim guidelines of the Council on
Environmental Quality (ante, pp. 260-262). Respondents concede in
their brief that the NEPA and the council's interim guidelines
are part of the legislative history of the state act, by virtue
of their adoption shortly prior to the passage of the state act
and because of similarities in provisions (see ante, p. 260).
Yet, as respondents point out, the very similarities between the
state act and the federal language underscore the fact that the
Legislature intended the differences to be meaningful -- a
well-established rule (City of Port Hueneme v. City of Oxnard
(1959) 52 Cal.2d 385, 395-396 [341 P.2d 318]; Estate of Simpson
(1954) 43 Cal.2d 594, 600 [275 P.2d 467]; People v. Kuhn (1963)
216 Cal.App.2d 695, 699 [31 Cal.Rptr. 253]) which the majority
ignore. Examination of these differences results again in the
conclusion that section 21151 does not apply to a private project
for which a governmental permit is required. First, the NEPA
provides in section 102(2)(C) (42 U.S.C. § 4332(2)(C)) that:
"The Congress authorizes and directs that, to the fullest
extent possible: . . . (2) all agencies of the Federal Government
shall . . . . [ para. ] (C) include in every recommendation or
report on proposals for legislation and other major Federal
actions significantly affecting the quality of the human
environment, a detailed [environmental impact] statement by the
responsible official . . . ." (Italics added.) Next, the interim guidelines of the Council on Environmental Quality, promulgated on May 11, 1970 (before any significant amendments to the EQA) stated:
In light of this tri-partite federal categorization of
"projects," which, as the majority remind us, the
Legislature had in mind when it enacted the EQA, what are we to
make of the now-familiar phrasing of section 21151, "any
project they intend to carry out," i.e., any project which
local agencies intend to carry out? To me two crucial points are clear. First, the very use of the
word "project" by the Legislature in the first place
shows that the Legislature intended section 21151 to have
narrower scope than the federal provisions, since
"project" is manifestly a subcategory of
"actions" according to the federal guideline No. 5.
This difference in wording indicates that the Legislature desired
to limit the coverage of section 21151 to "projects"
only (subcategory (ii)) as opposed to "[recommendations] or
reports relating to legislation and appropriations" or
"[policy] -- and procedure-making." Second, when we scrutinize the type of "project"
covered by section 21151 -- any project local bodies or agencies
intend to carry out -- the analogy between the federal and state
language is evidently not the one urged by the majority.
Examination of the three federal types of "[projects] and
continuing activities,"7 supra, compels the
conclusion that the Legislature was analogizing to
"[projects] and continuing activities; [ para. ] [directly]
undertaken by federal agencies" when it adopted section
21151. The phrase "any project [local agencies] intend to
carry out" in the EQA is clearly similar to the phrase
"[directly] undertaken by federal agencies" in the
federal guidelines. These two types of "projects" can
be readily analogized and their similarity is pronounced, when we
consider the marked difference between the phrasing of section
21151 and the other two types of federal projects: those
"[supported] in whole or in part through Federal contracts,
grants . . . or other forms of funding assistance," or those
"[involving] a Federal lease, permit, license, certificate
or other entitlement for use."
In light of these differences, which we must deem significant,
the phrase "any project they intend to carry out" again
takes on the meaning of a project actually executed or carried
forward by local agencies (a public works project) -- just like
projects directly undertaken by Federal agencies. Moreover, under
the rule of "expressio unius est exclusio alterius" the
Legislature was evidently not including within the coverage of
section 21151 private projects for which a governmental permit is
required. If the Legislature had intended such a result, it would
indeed have included language similar to that used in the
description of the counterpart type of Federal project:
"[involving] a Federal lease, permit, license, certificate
or other entitlement for use." There is simply no basis for
the majority's facile conclusion to the contrary. Nor is there any justification, let alone constructional
value, to the majority's "parenthetical" use of the
statement of Assemblyman Knox in an attempt to shore up its
interpretation of the Legislature's intent. It is a settled
principle that such statements are inadmissible to show the
intent of the Legislature as a whole in construction of statutes.
(In re Lavine (1935) 2 Cal.2d 324, 327 [41 P.2d 161, 42 P.2d
311]; Rich v. State Board of Optometry (1965) 235 Cal.App.2d 591,
603 [45 Cal.Rptr. 512].) I see no reason to depart from this rule
of law in the instant case, even "parenthetically";
there has been no adequate showing that the statement of
Assemblyman Knox (or, for that matter, the contrary declaration
of Assemblyman Porter) falls within the sole exception to the
rule, where the legislator's testimony consists only of a
reiteration of legislative discussion leading to adoption of
proposed amendments, which "amounts to a report of the
[legislative] committee's activity . . . and is certainly part of
the legislative history . . . ." (Rich v. State Board of
Optometry, supra, 235 Cal.App.2d 591, 603.) The majority also ignore the fact that two new bills were
introduced in the Assembly in March 1972 precisely for the
purpose of expanding the scope of section 21151 from "any
project they intend to carry out" to "any major
action," as that term is almost identically explicated in
the federal guidelines referred to above. The introduction of
these new bills indicates that many legislators do not believe
that the present section 21151 carries the broad impact assigned
to it by the majority. On March 2, 1972, 46 members of the Assembly, together with 14 members of the Senate as co-authors, introduced A.B. 681. This bill would, inter alia, add a fifth chapter to the EQA concerning environmental review of actions by public agencies. The new chapter would institute a Department of Environmental Impact Review as an administrative subdivision of the State Environmental Quality Board. Section 99 of the bill would amend the present section 21151 to read as follows (deletions shown by strike-outs, additions by italics): "The legislative bodies of all cities and counties which have an officially adopted conservation element of a general plan shall make a finding that any major action which could have a significant effect on the environment, is in accord with the conservation element of the general plan. All other local governmental agencies including districts shall make an environmental impact report on any major action which could have a significant effect on the environment and shall submit it to the appropriate local planning agency as part of the report required by Section 65402 of the Government Code and to the State Environmental Quality Board. . . ." Section 98 of the bill would institute a new section 21102
which would define the term "action" as follows:
This terminology is, of course, identical to the federal guideline No. 5 quoted supra, except for the immaterial substitution of the word "public" for the word "federal" to render the language relevant to the state setting. First, the proposed amendment would plainly widen the scope of section 21151 to cover not only "projects and continuing activities" but other subcategories of "actions" as well; second, the proposed amendment would also broaden the meaning of the word "project" itself, from the type now covered (projects which public agencies "intend to carry out," i.e., "[directly] undertaken by public agencies") to include as well those projects "[involving] a public lease, permit . . . or other entitlement for use." The proposed amendment, in light of the directly analogous federal wording, cannot be explained merely as an attempt to clarify but not broaden the present meaning of "project" as that word appears in section 21151. The suggested change shows that 60 members of the Legislature do not believe that the present section 21151 covers purely private activity for which a public permit is necessary. That so many legislators co-authored the proposed amendment contained in A.B. 681 is further evidence of the inaccuracy of the majority's interpretation of the present section 21151. Moreover, on March 13, 1972, A.B. 889 was introduced (by
Assemblyman Knox himself). This bill proposes many of the same
amendments to the EQA included in A.B. 681 (e.g., by adding a new
chapter 2.5 defining certain terms such as "project"
(substantially identical to the above wording of A.B. 681) and
"public agency" (any "state agency, board, or
commission, any county, city and county, city, regional agency,
public district, or other political subdivision")). In
addition, A.B. 889 would amend section 21151 to read as follows
(deletions shown by strike-outs, additions by italics): "The
legislative bodies of all cities and counties which have an
officially adopted conservation element of a general plan shall
make a finding that any project they intend to carry out, which
may have a significant effect on the environment, is in accord
with the conservation element of the general plan. All local
agencies shall make an environmental impact report on any project
they intend to carry out which may have a significant effect on
the environment. When a report is required by Section 65402 of
the Government Code, the environmental impact report may be
submitted as a part of that report." Once again, the thrust of these proposed changes is evident:
Section 21151 would expressly cover the type of
"project" which plaintiffs herein wish were covered
now. Environmental impact reports would be submitted for projects
other than the public works type of projects for which a report
is required under Government Code section 65402. A.B. 889 and
A.B. 681 together constitute additional support for respondents'
basic contention: that the present section 21151 does not apply
to private activity involving a use permit, such as
International's proposed development at Mammoth Lakes. To recapitulate, the majority opinion in my view ignores the
plain meaning and usual import of the particular words of section
21151 which are applicable to Mono County's decision to grant the
conditional use permit to International. The opinion cites
legislative history and analogous federal language which in fact
negate rather than support an expansive interpretation of section
21151. The opinion relies on general declarations of legislative
policy at the beginning of the EQA which simply are not
effectuated in section 21151 in the manner urged. I, as well as
the majority, am conscious of the profound need to improve and
maintain the quality of California's environment (see, e.g.,
People ex rel. Younger v. County of El Dorado (1971) 5 Cal.3d
480, 485-488, 491-494 [96 Cal.Rptr. 553, 487 P.2d 1193]), but
settled principles of statutory construction cannot be set aside
by the judiciary in order to achieve that high purpose. I conclude that the action taken by the Mono County Planning
Commission and the Mono County Board of Supervisors was in all
respects regular and lawful. The pertinent ordinance did not
require said bodies to make specific findings of fact in respect
to the issuance of the use permit. (Cf. Schumm v. Board of
Supervisors (1956) 140 Cal.App.2d 874, 878, 880-881 [295 P.2d
934].) The record discloses that the issuance of the permit was
supported by substantial evidence and did not constitute an abuse
of discretion. I would affirm the order. |