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In Bank. (Opinion by Tobriner, J., with Wright, C. J., Sullivan,
J., and Molinari, J., [FN*] concurring. Separate dissenting
opinion by Clark, J., with McComb, J., and Burke, J., [FN**]
concurring.)
FN* Assigned by the Chairman of the Judicial Council.
FN** Retired Associate Justice of the Supreme Court sitting
under assignment by the Chairman of the Judicial Council.
Brent N. Rushforth, Carlyle W. Hall, Jr., Mary D. Nichols, John
R. Phillips, A. Thomas Hunt and Frederic P. Sutherland for Plaintiffs
and Appellants.
Evelle J. Younger, Attorney General, Robert H. O'Brien, Assistant
Attorney General, Nicholas C. Yost and Jan E. Chatten, Deputy
Attorneys General, as Amici Curiae on behalf of Plaintiffs and
Appellants.
Lawler, Felix & Hall, Robert Henigson, William K. Dial, Hanna
& Morton, Harold C. Morton, Edward S. Renwick, Bela G. Lugosi,
Mitchell, Silberberg & Knupp and Arthur Groman for Defendants
and Respondents.
Hindin, McKay, Levine & Glick and Denis A. Glick as Amici
Curiae on behalf of Defendants and Respondents.
TOBRINER, J.
Plaintiffs appeal from a judgment of the Los Angeles Superior
Court ruling that the City of Los Angeles need not prepare an
environmental impact report (EIR) before enacting ordinances to
permit defendant Occidental Petroleum Corp. to sink two test oil
wells in the Pacific Palisades region of the city. This appeal,
the first case arising under the California Environmental Quality
Act (hereafter CEQA) (Pub. Resources Code, § 21050 et seq.)
to reach this court since Friends of Mammoth v. Board of Supervisors
(1972) 8 Cal.3d 247 [104 Cal.Rptr. 761, 502 P.2d 1049], compels
us to inquire into how an agency should decide whether a pending
project requires an EIR. [FN1]
FN1 For a summary of the relationship between CEQA as enacted
in 1970, Friends of Mammoth, and the 1972 amended act, see Seneker,
The Legislative Response to Friends of Mammoth - Developers Chase
the Will-O'- The-Wisp (1973) 48 State Bar J. 127.
In CEQA, the Legislature sought to protect the environment by
the establishment of administrative procedures drafted to 'Ensure
that the long- term protection of the environment shall be the
guiding criterion in public decisions.' (Pub. Resources Code,
§ 21001, subd. (d).) To achieve these objectives, CEQA and
the guidelines issued by the State Resources Agency to implement
CEQA [FN2] establish a three-tiered structure. If a project
falls within a category exempt by administrative regulation (see
Pub. Resources Code, §§ 21084, 21085), or 'it can be
seen with certainty that the activity in question will not have
a significant effect on the environment' (Cal. Admin. Code, tit.
14, § 15060), no further agency evaluation is required. If
there is a possibility that the project may have a significant
effect, the agency undertakes an initial threshold study (Cal.
Admin. Code, tit. 14, § 15080); if that study demonstrates
that the project 'will not have a significant effect,' the agency
may so declare in a brief Negative Declaration. (Cal. Admin. Code,
tit. 14, § 15083.) If the project is one 'which may have
a significant effect on the environment,' an EIR is required.
(Pub. Resources Code, §§ 21100, 21151; see Cal. Admin.
Code, tit. 14, § 15080.) The parties assume that the drilling
project is one which may possibly have a significant effect and
thus requires an initial threshold environmental study. The question
is whether the city properly determined that no EIR was necessary.
FN2 The guidelines established by the State Resources Agency
took effect on February 10, 1973, shortly after completion of
the trial in the present case. We do not apply these guidelines
retroactively to decisions of the court or city council rendered
before the guidelines went into effect. We make use of the guidelines,
however, as a suggested interpretation of the statute, and as
an illustration of the procedures which the resources agency finds
necessary to enforcement of the statute.
Judicial review of the city's decision is governed by Public Resources
Code section 21168.5, which provides that 'In any action or proceeding,
other than an action or proceeding under Section 21168, to attack,
review, set aside, void or annul a determination or decision of
a public agency on the grounds of noncompliance with this division,
the inquiry shall extend only to whether there was a prejudicial
abuse of discretion. Abuse of discretion is established if the
agency has not proceeded in a manner required by law or if the
determination or decision is not supported by substantial evidence.'
[FN3] Since, as we shall explain, the judgment of the superior
court sustaining the city's decision must be reversed because
of the city's failure to proceed in the manner required by law,
we do not reach the question whether that decision is supported
by substantial evidence.
FN3 Judicial review of agency action under CEQA is governed
by sections 21168 and 21168.5. Section 21168 provides that review
of an agency decision 'made as a result of a proceeding in which
by law a hearing is required to be given, evidence is required
to be taken and discretion in the determination of facts is vested
in a public agency' should follow the administrative mandamus
procedure of Code of Civil Procedure section 1094.5. Section 21168.5,
quoted in the text, provides that other agency decisions should
be reviewed by a traditional mandamus action. Since the Los Angeles
City Council was not required by law to hold an evidentiary hearing
before approving the ordinances establishing the oil drilling
districts, section 21168.5 governs the case at bar. Sections 21168
and 21168.5 became effective on December 5, 1972 - subsequent
to the October city council hearings and to the filing of this
action, but before the trial in the superior court and that court's
remand of the matter to the city council. Fortunately the Legislature,
anticipating that issues might arise concerning the retroactivity
of these sections, enacted that 'Sections 21168 and 21168.5 are
declaratory of existing law with respect to the judicial review
of determinations or decisions of public agencies made pursuant
to this division.' (Pub. Resources Code, § 21168.7.) This
enactment demonstrates that the Legislature intends sections 21168
and 21168.5 to apply to all proceedings under CEQA, including
those pending when those sections became effective.
The city council specifically failed to comply with the requirements
of CEQA in two respects. First, because an EIR serves to guide
an agency in deciding whether to approve or disapprove a proposed
project, CEQA impliedly requires (and the guidelines expressly
require) that the agency render a written determination whether
a project requires an EIR before it gives final approval to that
project. The city council, however, approved the drilling project
in October of 1972 without a written determination concerning
the environmental impact of that project. The belated council
resolution in January of 1973, despite its attempt to render a
determination retroactively as of the previous October, does not
suffice to comply with the requirement that environmental issues
be considered and resolved before a project is approved.
Second, since the preparation of an EIR is the key to environmental
protection under CEQA, accomplishment of the high objectives of
that act requires the preparation of an EIR whenever it can be
fairly argued on the basis of substantial evidence that the project
may have significant environmental impact. The superior court
in the present case, however, ordered the city council to follow
a far more restrictive test that limited use of an EIR to projects
which may have an 'important' or 'momentous' effect of semi-permanent
duration. The superior court's instruction, in addition, overlooked
the importance of preparing an EIR in cases, such as the present
action, in which the determination of a project's environmental
effect turns upon the resolution of controverted issues of fact
and forms the subject of intense public concern. In the context
of this case, we shall point out the bases for our conclusion
that the city's use of the erroneous test stated by the trial
court constitutes a prejudicial abuse of discretion.
1. Chronology of events.
In 1966 Occidental Petroleum drilled the Marquez Core Hole in
Santa Monica Canyon and discovered oil producing sands at a depth
of 9,200 feet. Seeking to determine the extent of the oil field,
Occidental acquired the 'highway drillsite' in Pacifiic Palisades
in 1969. This two-acre site lies across a state highway from Will
Rogers State Beach and near the foot of a bluff which has experienced
numerous landslides.
In July of 1970, the Office of Zoning Administration of the City
of Los Angeles granted Occidental a conditional use permit allowing
it to drill a test well at the highway drillsite. The board of
zoning appeals overturned that decision, finding that the drilling
might trigger a disastrous landslide, that a blowout - an uncontrolled
effusion of oil under pressure - would have severe environmental
consequences, and that an industrial use of the site would be
aesthetically undesirable.
Seeking to circumvent the requirement for a conditional use permit,
Occidental petitioned the city in 1972 to establish three oil
drilling districts in the Pacific Palisades. Since the oil drilling
districts proposed by Occidental would have permitted commercial
oil production, the hearing examiner for the city planning commission,
concerned about the environmental impact of such production, recommended
disapproval of the proposal. Nevertheless the planning commission
resolved to approve the proposal on condition that only two test
holes be drilled.
On October 10, 1972, the council considered three ordinances which
established oil drilling districts in the Pacific Palisades area,
subject to the condition that only two test wells could be drilled.
At the close of the hearing Councilman Wachs inquired whether
the city attorney had examined the proposed ordinances in the
light of our opinion in Friends of Mammoth filed three weeks earlier.
The city attorney replied that since the city had not yet established
procedures to ascertain the environmental impact of measures coming
before the council, he had made no such examination. At the next meeting, on October 17, Councilman Wachs moved to postpone consideration of the ordinances pending preparation of an EIR. No other councilman discussed the motion, which failed by an eight-to-six vote. The council then passed the ordinances by the same eight-to-six vote. Mayor Yorty signed the ordinances into law on October 20.
Plaintiffs, four nonprofit corporations representing persons
opposed to oil drilling in Pacific Palisades, filed the instant
action on October 27. Their complaint sought a declaration that
the ordinances were invalid, prayed for mandate to compel preparation
of an EIR, and requested an injunction against the issuance of
a drilling permit by the office of zoning administration. [FN4]
The city, in response, contended that no EIR was necessary, supporting
this contention with declarations from the eight councilmen who
voted for the ordinances; each declared, in the statutory language,
his opinion that the drilling project was not such as might have
a significant effect on the environment. Occidental, on the other
hand, maintained that the reports of the planning commission constituted
a sufficient EIR.
FN4 Before beginning to drill, Occidental was required
to secure drilling permits from the office of zoning administration.
The office expressly found that issuance of the drilling permits
would not require an EIR, and issued the requested permits on
January 4, 1973. The board of zoning appeals upheld that decision
on January 31, and Occidental commenced drilling operations the
same day. We issued a stay order halting the drilling on February
7.
Plaintiffs initially claimed that the 'project' whose impact was
at issue encompassed commercial oil production in Pacific Palisades;
they argued that it was evident such production would have a significant
effect on the environment. The trial court, however, limited the
issue to the impact of the drilling of the test wells. [FN5]
Plaintiffs presented expert testimony to show that even this limited
'project' might have a significant environmental effect. Paul
Witherspoon, a professor of petroleum geology at the University
of California at Berkeley, explained that a blowout, an unavoidable
hazard of exploratory drilling, might lead to oil seepage polluting
the adjoining state beach and harbor. George Tauxe, a professor
of soil mechanics at U.C.L.A., testified that the drilling site
was located at the foot of an unstable bluff, a locale of past
landslides. Plaintiffs also contend that the drilling operation
would be noisy and visually unattractive. FN5 Plaintiffs contend that the trial court erred in limiting the scope of the 'project' at issue to the drilling of two test wells; they maintain that the scope of inquiry should include the environmental effects of commercial production and exploitation of the oil resources of the Pacific Palisades. They point out that the drilling of the test wells would be a useless waste of money unless commercial production can follow. Thus information on the environmental impact of commercial production is relevant to the council's decision to approve the test wells; if that data proved that commercial production would be harmful, the council might well decide to disapprove the test drilling. Under these circumstances, plaintiffs observe that a narrow definition of 'project' which bars inquiry into the environmental effects of commercial production defeats the objectives of the act.
Defendants protest, however, that the geologic information obtained
from the test wells is essential to the preparation of an accurate
EIR on the impact of commercial production. As the court pointed
out in Scientists' Inst. for Pub. Info., Inc. v. Atomic Energy
Com'n (1973) 481 F.2d 1079 [156 App.D.C. 395], an impact statement
prepared before reliable information is available would 'tend
toward uninformative generalities' (481 F.2d at p. 1093), but
one delayed until after key decisions have been made could not
assure that such decisions reflected environmental consideration.
'Thus we are pulled in two directions. Statements must be written
late enough in the development process to contain meaningful information,
but they must be written early enough so that whatever information
is contained can practically serve as an input into the decision
making process.' (481 F.2d at p. 1094.)
The issue thus narrows to the question whether the city, before
drilling of the test wells, has sufficient reliable data to permit
preparation of a meaningful and accurate report on the impact
of commercial production. Unfortunately the parties have not briefed
this question thoroughly, and the record contains little evidence
pertinent to its resolution. Since we are persuaded by plaintiffs'
other contentions to reverse the judgment against them, we need
not and do not decide whether the trial court erred in limiting
the scope of inquiry to exclude consideration of commercial production.
In rebuttal, Occidental presented testimony by Ted Bear, a consulting
petroleum geologist, that absent human or mechanical failure,
there was no danger of a blowout at the highway drillsite. Other
geologists employed by Occidental described measures planned to
contain a blowout. David Leeds, a consulting seismologist, testified
that the drilling vibrations perceived at the base of the bluff
would be of lesser magnitude than those caused by existing traffic
on the highway west of the drillsite, and even less than the ambient
vibrations in the vicinity of the courtroom. Occidental also presented
photographs to show that a drillsite could be constructed to avoid
visual blight.
On December 29, 1972, the judge announced an oral ruling. Declaring
that the council's actions of October 10 and 17 were equivocal,
he resolved to remand the matter to the council for clarification
of the council's position on the question: 'Is the present Occidental
application to drill two core holes such a project that may have
a significant effect on the environment?'
In remanding the matter, the court stated a test for use by the
council in determining whether a project 'may have a significant
effect on the environment': 'whether there is a reasonable possibility
that the project will have a momentous or important effect of
a permanent or long enduring nature.'
The council convened on January 8, 1973. At the conclusion of
the hearing the council, by an eight-to-seven vote, adopted a
resolution stating that 'the Los Angeles City Council specifically
declare that at the time it adopted the subject three ordinances
it believed, and now specifically finds, that such ordinances
and the restricted activities permitted thereby would have no
significant effect on the environment.' The superior court found
that the council's adoption of this resolution was supported by
substantial evidence in the administrative record both as of October
1972, and as of January 8, 1973. [FN6] It then entered
judgment declaring that the council lawfully determined that no
EIR was required for the drilling project, and denying plaintiffs'
request for mandate and injunctive relief.
FN6 In an action for administrative mandamus, the court
reviews the administrative record, receiving additional evidence
only if that evidence was unavailable at the time of the administrative
hearing, or improperly excluded from the record. (Code Civ. Proc.,
§ 1094.5.) In a traditional mandamus action, on the other
hand, the court is not limited to review of the administrative
record, but may receive additional evidence. (Felt v. Waughop
(1924) 193 Cal. 498, 504 [225 P. 862]; Lassen v. City of Alameda
(1957) 150 Cal.App.2d 44, 48 [309 P.2d 520]; Cal. Civil Writs
(Cont.Ed.Bar 1970) § 17.9.) Hence the issue before the superior
court in the present case was whether substantial evidence, on
the whole record including the evidence presented to that court,
supported the determination that no EIR was required. The superior
court's finding - that the council's resolution was supported
by substantial evidence 'in the administrative record' - is not
responsive to that issue.
Plaintiffs appealed and unsuccessfully sought a stay order from
the Court of Appeal. [FN7] Since the appeal presented issues
of public importance, which would be mooted if Occidental completed
the drilling project pending appeal, we ordered the cause transferred
to this court, issued a stay order and returned the cause to the
Court of Appeal. (See People ex rel. S.F. Bay etc. Com. v. Town
of Emeryville (1968) 69 Cal.2d 533, 537 [72 Cal.Rptr. 790, 446
P.2d 790].) The action is now here on petition for hearing from
the Court of Appeal decision. FN7 On January 15, 1973, the superior court entered a minute order denying plaintiffs' request for preliminary and final injunctions, declaratory relief, and mandamus. The order also denied plaintiffs' motion for stay of execution, and directed counsel for Occidental to prepare findings and judgment.
Plaintiffs appealed from that minute order and any ensuing judgment.
Although the order did not constitute a final judgment on the
merits, plaintiffs' appeal was timely both with respect to the
denial of a preliminary injunction and the denial of stay of execution
(see Code Civ. Proc., § 904.1; Brydon v. City of Hermosa
Beach (1928) 93 Cal.App. 615, 620 [270 P. 255]). Final judgment
has now been entered, rendering moot the denial of preliminary
relief. 2. The Council erroneously failed to render a written determination respecting the environmental effect of the drilling project before it
approved that project.
As the superior court recognized, CEQA requires that an agency
determine whether a project may have a significant environmental
impact, and thus whether an EIR is required, before it approves
that project. [FN8] Finding the council's action of October
17 ambiguous, the court remanded the matter to the council for
clarification. The council passed a resolution stating that it
believed, as of October 1972, that the drilling project was not
such as might have a significant impact; the court accepted this
resolution as constituting the requisite determination of environmental
issues before approval of the project.
FN8 See Friends of Mammoth v. Board of Supervisors, supra,
8 Cal.3d 247, 262. The statutory definition of an EIR requires
that the report be considered before a project is approved (see
Pub. Resources Code, § 21061), which necessarily implies
that the decision whether or not to prepare a report must precede
approval of the project. The CEQA guidelines expressly state that
'The EIR process is intended to enable public agencies to evaluate
a project to determine whether it may have a significant effect
on the environment, to examine and institute methods of reducing
adverse impacts, and to consider alternatives to the project as
proposed. These things must be done prior to approval or disapproval
of the project.' (Cal. Admin. Code, tit. 14, § 15012.) (Italics
added.)
We conclude, however, that a determination that a project does
not require an EIR, when that project is not exempt from environmental
study under the act or guidelines, [FN9] must take the
form of a written Negative Declaration. Such is the unanimous
view of the federal courts construing the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. § 4321 et seq.), [FN10]
and the explicit requirement of both federal and state guidelines.
(See Council on Environmental Quality, Preparation of Environmental
Impact Statements: Guidelines, § 1500.5, 38 Fed. Reg. 20552
(1973); Cal. Admin. Code, tit. 14, § 15083.) [FN11]
Absent such a written determination, there is no way a court
can determine whether agency silence represents a decision that
a project does not require an EIR or a failure to decide that
issue.
FN9 Public Resources Code section 21085 provides that no
environmental study is required if a project comes within a category
exempt by administrative regulation; the Resource Agency guidelines
list seven such categorical exemptions (Cal. Admin. Code, tit.
14, §§ 15101-15107). Guideline 15060 also provides generally
that no environmental study is needed if 'it can be seen with
certainty that the activity in question will not have a significant
effect on the environment.' FN10 See, e.g., Hanly v. Mitchell (2d Cir. 1972) 460 F.2d 640; Hanly v. Kleindienst (2d Cir. 1972) 471 F.2d 823; cf. Environmental Defense Fund, Inc. v. Ruckelshaus (1971) 439 F.2d 584, 598 [142 App.D.C. 74]. Friends of Mammoth v. Board of Supervisors, supra, 8 Cal.3d 247, and from the federal cases cited in that decision.
Plaintiffs in turn assert that a Negative Declaration should go
beyond the specifications of section 15083 and contain a full
exposition of all relevant environmental factors; they contend
that section 15083, which contemplates only a conclusory one-page
document, is invalid under the terms of CEQA. Language in Hixon
v. County of Los Angeles (1974) 38 Cal.App.3d 370, 380 [113 Cal.Rptr.
433] notwithstanding, plaintiffs' contention presents a justiciable
issue. (See Desert Environment Conservation Assn. v. Public Utilities
Com. (1973) 8 Cal.3d 739, 742- 743 [106 Cal.Rptr. 31, 505 P.2d
223].) Its resolution, however, should await a case which arises
after the effective date of the challenged regulation.
FN11 Guideline 15083 specifies that a Negative Declaration
must include a brief description of the project, a finding that
the project will not have a significant effect, and a statement
of reasons to support that finding. The city maintains that since
section 15083 did not take effect until February of 1973, its
specifications should not be applied to the decision of the city
council in October of 1972. The requirement that a finding of
no significant impact take the form of an express written determination,
however, is implicit in the act itself, and could have been deduced
in October of 1972 from examination of the act, from our decision
in
We do not question the power of a trial court to remand a matter
to an administrative agency for clarification of ambiguous findings.
(See Keeler v. Superior Court (1956) 46 Cal.2d 596, 600 [297 P.2d
967].) This doctrine, however, does not apply to the present case.
This is not a case in which an agency rendered ambiguous findings
concerning the environmental effect of the project, but a case
of total absence of any written determination on the matter; for
all the record reveals, the council may have simply ignored CEQA
and enacted the ordinances in the same manner to which it was
accustomed before CEQA was enacted. [FN12]
FN12 Neither CEQA nor Code of Civil Procedure section 1094.5
require rendition of findings of fact in quasi-legislative proceedings;
our opinion imposes no such requirement. We hold only that when
the agency makes a determination whether a project requires an
EIR, as CEQA requires it to do, it should put that determination
in writing.
At the time of the January 8, 1973, resolution, the council had
already approved the project. No resolution adopted on that date
can constitute that determination of environmental impact prior
to approval of the project which the act requires. The resolution
adopted at that meeting represents simply an example of that 'post
hoc rationalization' of a decision already made, which the courts
condemned in Citizens to Preserve Overton Park v. Volpe (1971)
401 U.S. 402, 420 [28 L.Ed.2d 136, 155, 91 S.Ct. 814] and Environmental
Defense Fund, Inc. v. Coastside County Water Dist. (1972) 27 Cal.App.3d
695, 706 [104 Cal.Rptr. 197].
In failing to render a written determination of environmental
impact before approving the project, the council proceeded in
a manner contrary to the requirements of law. (See Pub. Resources
Code, § 21168.5.) This failure cannot be excused on the theory
that the council might have approved the drilling project anyway;
'[t]o permit an agency to ignore its duties ... with impunity
because we have serious doubts that its ultimate decision will
be affected by compliance would subvert the very purpose of the
Act.' (City of New York v. United States (E.D.N.Y. 1972) 337 F.Supp.
150, 160 [NEPA]; Arizona Public Service Co. v. Federal Power Com'n
(1973) 483 F.2d 1275, 1283 [157 App.D.C. 272]; see Jones v. District
of Columbia Redevelopment Land Agency (D.C. Cir. 1974) 499 F.2d
502, 512-513.) 3. The city council followed an erroneous test in deciding that the drilling
project did not require an environmental impact report.
As we have explained, the council's resolution of January 8, 1973,
cannot be given retroactive effect to validate the council's actions
of the previous October. We now point out that the council's resolution
is defective on a second ground, namely, that the council employed
incorrect standards in determining that the drilling project did
not require an EIR.
Public Resources Code section 21151, as of October 1972, provided
that local government agencies not having an officially adopted
conservation element of a general plan (such as the City of Los
Angeles) 'shall make an environmental impact report on any project
they intend to carry out which may have a significant effect on
the environment.' (Italics added.) Although section 21151 was
amended effective December 5, 1972, [FN13] the italicized
words, the focus of the present controversy, are identical in
both the original and amended sections. [FN14]
FN13 Section 21151 now provides that 'All local agencies
shall prepare, or cause to be prepared by contract, and certify
the completion of an environmental impact report on any project
they intend to carry out or approve which may have a significant
effect on the environment. ...' The amendment authorized agencies
to contract for preparation of an EIR instead of preparing it
themselves, added the requirement for an EIR when the agency approves
a private project (thus codifying the holding in Friends of Mammoth
v. Board of Supervisors, supra, 8 Cal.3d 247) and eliminated the
exemption for cities with an officially adopted conservation element
in their general plan.
FN14 The defendants concede that the test wells constitute
a 'project' as defined in Public Resources Code section 21065,
and that the enactment of the ordinances establishing oil drilling
districts constitutes the carrying out of such a project within
the terms of section 21151. Plaintiffs maintain that the scope
of the 'project' whose impact is at issue encompasses not only
the drilling of the test wells but also the possibility of subsequent
commercial production. (See fn. 5, supra.)
The trial court, on remanding this cause to the city council for
clarification, interpreted this section to compel preparation
of an EIR only when 'there is a reasonable possibility that the
project will have a momentous or important effect of a permanent
or long enduring nature.' As we shall explain, this test sets
far too high a barrier to the preparation of an EIR. [FN15]
FN15 We do not think this court at this time should draft a substitute test. The responsibility for formulation of such a test is expressly delegated by CEQA to the State Resources Agency. (See Pub. Resources Code, § 21083.) That agency has defined 'significant effect' as 'a substantial adverse impact on the environment' (Cal. Admin. Code, tit. 14, § 15040) - a definition which differs markedly from that advanced by the trial court - and listed those environmental consequences which ordinarily indicate that a project may have a significant effect. (Cal. Admin. Code, tit. 14, § 15081.) The Attorney General, as amicus curiae, stated his opposition to the guidelines' definition of 'significant effect' on the ground that agency action may significantly affect the environment even if the agency believes that effect to be beneficial rather than 'adverse.' (Cf. Hiram Clarke Civic Club, Inc. v. Lynn (5th Cir. 1973) 476 F.2d 421, 426-427 [NEPA]; Goose Hollow Foothills League v. Romney (D.Ore. 1971) 334 F.Supp. 877, 879 [NEPA].) One writer has also suggested that the term 'substantial' imposes too high a threshold level for the preparation of EIRs. (Comment, Aftermammoth: Friends of Mammoth and the Amended California Environmental Quality Act (1973) 3 Eco.L.Q. 349, 367-368, fn. 111.) In the light of such criticism, the secretary for resources has announced that the resources agency will 'do additional work' on this guideline, and schedule public hearings at a later date. (Letter from N. B. Livermore, dated Feb. 5, 1974, accompanying the issuance of the amended CEQA guidelines.)
Under these circumstances, we believe it would be inappropriate
for us to utilize the present case to determine the validity of
section 15040, or to preempt the Resources Agency by drafting
an alternative definition. Our conclusion that the trial court's
definition is patently erroneous is sufficient to decide the present
appeal.
CEQA requires an EIR only for projects whose environmental effect
can be described as 'significant.' This key word, however, is
not a term of precision but encompasses a range of meaning. [FN16]
It cannot be adequately defined by a random selection of synonyms
from a thesaurus. Facing a spectrum of possible meanings, describing
a range extending from projects of relatively minor import to
those of truly momentous proportions, the court's task is to indicate
the point on this spectrum beyond which the seriousness of the
foreseeable impact dictates preparation of an EIR. FN16 As stated by Judge Friendly, construing the phrase 'significantly affecting the quality of the human environment' in NEPA (42 U.S.C. § 4332): 'While ... determination of the meaning of 'significant' is a question of law, one must add immediately that to make this determination on the basis of the dictionary would be impossible. Although all words may be 'chameleons, which reflect the color of their environment,' C.I.R. v. National Carbide Corp., 167 F.2d 304, 306 (2 Cir. 1948) (L. Hand, J.), ' significant' has that quality more than most. It covers a spectrum ranging from 'not trivial' through 'appreciable' to 'important' and even ' momentous." (Hanly v. Kleindienst (2d Cir. 1972) 471 F.2d 823, 837 (dissenting opn. of Friendly, J.).) (For discussion of Hanly v. Kleindienst, see fn. 18, infra.)
Moreover, CEQA does not speak of projects which will have a significant
effect, but those which may have such effect. Although we agree
with the trial court that the word 'may' connotes a 'reasonable
possibility,' that phrase again encompasses a range of meaning
extending from the most unlikely possibility which might influence
the views of a reasonable man to events which fall but a hair
short of certainty.
In interpreting section 21151, our principal guide is the fact,
recognized in Friends of Mammoth, 'that the Legislature intended
[CEQA] to be interpreted in such manner as to afford the fullest
possible protection to the environment within the reasonable scope
of the statutory language.' ( Friends of Mammoth v. Board of Supervisors,
supra, 8 Cal.3d at p. 259; accord, County of Inyo v. Yorty (1973)
32 Cal.App.3d 795, 804 [108 Cal.Rptr. 377]; see Environmental
Defense Fund, Inc. v. Coastside County Water Dist., supra, 27
Cal.App.3d at p. 701.) The EIR is the 'heart' of CEQA (County
of Inyo v. Yorty, supra, 32 Cal.App.3d at p. 810), the principal
method by which environmental data are brought to the attention
of the agency and the public. Consequently that interpretation
of section 21151 which will 'afford the fullest possible protection
to the environment within the reasonable scope of the statutory
language' ( Friends of Mammoth v. Board of Supervisors, supra,
8 Cal.3d at p. 259) is one which will impose a low threshold requirement
for preparation of an EIR. [FN17]
FN17 '[I]n view of the clearly expressed legislative intent
to preserve and enhance the quality of the environment ..., the
court will not countenance abuse of the 'significant effect' qualification
as a subterfuge to excuse the making of impact reports otherwise
required by the act.' ( Friends of Mammoth v. Board of Supervisors,
supra, 8 Cal.3d at p. 271.)
As stated by Judge Friendly, discussing the federal act, 'It is
not readily conceivable that Congress meant to allow agencies
to avoid this central requirement by reading 'significant' to
mean only 'important,' 'momentous,' or the like. One of the purposes
of the impact statement is to insure that the relevant environmental
data are before the agency and considered by it prior to the decision
to commit Federal resources to the project; the statute must not
be construed so as to allow the agency to make its decision in
a doubtful case without the relevant data or a detailed study
of it.' (Hanly v. Kleindienst, supra, 471 F.2d at pp. 837-838
(dissenting opinion).) [FN18]
FN18 The majority opinion in Hanly v. Kleindienst (2d Cir.
1972) 471 F.2d 823 advanced the view that an environmental impact
statement is not required in merely close and arguable cases if
the agency submits, in lieu of such statement, a fully detailed
explanation of its reasons for concluding that the project will
not have a significant environmental effect. The majority in Hanly
v. Kleindienst then reviewed a 25-page 'Assessment of the Environmental
Impact' prepared by a government agency to support its conclusion
that a proposed jail would not significantly affect the environment,
and held that this assessment was inadequate because it failed
to include findings with respect to some relevant environmental
considerations. (471 F.2d at p. 834.) Judge Friendly's dissent
suggests that the agency could as easily have prepared an environmental
impact statement.
In limiting the use of EIRs to projects which may have an 'important'
or 'momentous' effect, the trial court adopted a test which will
necessarily bar preparation of an EIR in those close and doubtful
cases to which Judge Friendly referred, and will, to that extent,
defeat the Legislature's objective of ensuring that environmental
protection serve as the guiding criterion in agency decisions.
(Pub. Resources Code, § 21001, subd. (d).) Indeed, the trial
court test of 'significant impact' imposes a far higher threshold
barrier to the preparation of an EIR than any suggested in state
or federal guidelines or in any reported decision; its interpretation
affords not the fullest, but the least possible protection to
the environment within the statutory language. [FN19]
FN19 Anderson, NEPA in the Courts (1973) reviews the federal
decisions under NEPA and concludes that they have given the act
'the widest possible scope of application' (p. 56) and imposed
a 'low threshold' for preparation of an environmental impact statement
(the federal equivalent of California's environmental impact report).
In addition, the trial court added the gratuitous stipulation
that no EIR is required unless the environmental effect of a project
is 'of a permanent or long enduring nature.' We find no statutory
warrant for this restriction; although the duration of an environmental
effect is one of many facts which affect its significance, nothing
in the act suggests that short-term effects cannot be of such
significance as to require an EIR.
The trial court's test also erred in its omission of important
considerations which called for the preparation of an EIR in the
instant case. Evaluation of the environmental impact of the drilling
project in the instant case required resolution of a factual dispute
concerning the probability that the project might cause landslides
or blowouts. In such cases, an EIR - an impartial, detailed, and
factual analysis of the project's effect - can perform an invaluable
service in aiding the agency's resolution of the dispute. As pointed
out in County of Inyo v. Yorty, supra, 32 Cal.App.3d 795, 814,
in such cases of factual controversy 'The very uncertainty created
by the conflicting assertions made by the parties as to the environmental
effect ... underscores the necessity of the EIR to substitute
some degree of factual certainty for tentative opinion and speculation.'
Thus we conclude, as did the court in County of Inyo v. Yorty,
that an agency should prepare an EIR whenever it perceives 'some
substantial evidence that the project 'may have a significant
effect' environmentally.' (32 Cal.App.3d at p. 809.) As stated
by Judge J. Skelly Wright in Students Challenging Reg. Agency
Pro. v. United States (D.D.C. 1972) 346 F.Supp. 189, 201, an environmental
impact report should be prepared 'whenever the action arguably
will have an adverse environmental impact.' (Italics in original.)
[FN20]
FN20 The United States Supreme Court noted jurisdiction
in Students Challenging Reg. Agency Pro. v. United States, affirmed
the district court's holding that the plaintiff had standing,
but ruled that the district court lacked jurisdiction to enjoin
the Interstate Commerce Commission. (United States v. SCRAP (1973)
412 U.S. 669 [37 L.Ed.2d 254, 93 S.Ct. 2405].) Its opinion does
not discuss the standards for preparation of an environmental
impact statement.
Furthermore, the existence of serious public controversy concerning
the environmental effect of a project in itself indicates that
preparation of an EIR is desirable. [FN21] One major purpose
of an EIR is to inform other government agencies, and the public
generally, of the environmental impact of a proposed project (see
County of Inyo v. Yorty, supra, 32 Cal.App.3d 795, 810; Environmental
Defense Fund, Inc. v. Coastside County Water Dist., supra, 27
Cal.App.3d 695, 704-705; cf. Jones v. District of Columbia Redevelopment
Land Agcy. (D.C. Cir. 1974) 499 F.2d 502, 511 [NEPA]), and to
demonstrate to an apprehensive citizenry that the agency has in
fact analyzed and considered the ecological implications of its
action. A simple resolution or Negative Declaration, stating that
the project will have no significant environmental effect, cannot
serve this function. FN21 The federal guidelines for NEPA provide that 'Proposed major actions, the environmental impact of which is likely to be highly controversial, should be covered in all cases.' (Council on Environmental Quality, Guidelines on Preparation of Environmental Impact Statements, § 1500.6, 38 Fed. Reg. 20551 (1973).) These guidelines, first adopted in 1971, were in effect at the time of trial in the instant case. Since the California act was modeled on the federal statute, judicial and administrative interpretation of the latter enactment is persuasive authority in interpreting the California act. (See Environmental Defense Fund, Inc. v. Coastside County Water Dist., supra, 27 Cal.App.3d 695, 701.)
The state guidelines, which took effect while this case was pending
on appeal, provide that 'where there is, or anticipated to be,
a substantial body of opinion that considers or will consider
the effect [of the project] to be adverse, the lead agency should
prepare an EIR to explore the environmental effects involved.'
(Cal. Admin. Code, tit. 14, § 15081.) Although defendants
suggest that this language is intended to imply by omission that
public opinion is relevant to the question of whether the project's
net effect is 'adverse,' but not to the question whether that
effect is 'significant,' this seems a wholly illogical interpretation.
The need for a full report to provide information and quiet public
apprehension is at least as great in cases, such as the present
action, where the controversy concerns the risk of an admittedly
adverse effect as in cases in which the controversy concerns whether
a predicted effect is adverse or benign.
Having decided that the trial court's instruction to the city
council erred both in its definition of 'significant impact' and
in its omission of considerations suggesting the need for an EIR
in the instant case, we must now determine whether that error
prejudicially affected the proceedings before the city council.
The principal issue here is whether the city council, on remand,
did in fact employ the test stated by the trial court.
Upon the remand of the matter to the council, that body scheduled
a public hearing on January 8, 1973, at which it received additional
testimony and argument concerning the environmental effect of
the drilling project. The council then resolved, by an eight-to-seven
vote, not to require an EIR. Several councilmen explained their
votes; four councilmen, two who favored and two who opposed the
resolution, explicitly phrased their determination in terms of
the trial court's test. Another councilman, who had previously
voted in favor of the drilling districts, asked the city's assistant
administrative officer for petroleum matters whether the effect
of a blowout would have a 'permanent long-enduring nature.' Receiving
a negative reply, he stated that he had heard nothing to change
his mind, and voted for the resolution.
The record of the proceeding before the council on January 8 convinces
us, as it did the trial court, [FN22] that the council
employed the trial court's test in resolving against preparation
of an EIR. Since that resolution carried by a bare eight-to-seven
majority, we are compelled to conclude that the use of a test
which limits EIRs to projects of momentous and semi-permanent
effect, and which excludes the presence of disputed factual issues
of public controversy as criteria suggesting preparation of a
report, prejudicially affected the council's decision. [FN23]
FN22 On January 15, the court announced its intention to
rule against plaintiffs. The judge observed that '[T]he court
formulated a test to be applied in interpreting the language 'may
have a significant effect on the environment,' the key phrase
in these proceedings. This test is as follows: Is there a reasonable
possibility that the project will have a momentous or important
effect of a permanent or long-enduring nature? ... With this test
clearly in mind - it was alluded to in one form or another fourteen
separate times by the city council - the council on January 8,
without remand, adopted a resolution. ... This court finds that
that resolution is synonymous with a statement that the contemplated
project is not one which may have a significant effect on the
environment.' FN23 Pointing to a letter by the city attorney dated October 3, 1973, defendants argue that the council, when it approved the ordinances, was aware that the then unmodified Friends of Mammoth opinion established a test requiring an EIR for all projects with a 'nontrivial' effect. Defendants infer that the council, in approving those ordinances, silently employed that test and found that the drilling project would have only a trivial impact on the environment. Defendants also infer that the resolution of January 1973, stating the council's belief as of October 1972 that the project would not have a significant impact, referred to the definition of 'significant effect' as 'nontrivial effect' which the council inferably followed in October. Piling inference upon inference, defendants conclude that if the council consistently utilized the test of significant effect set out in the unmodified Friends of Mammoth opinion, the trial court's erroneous test could not have influenced the council's decision.
We reject the inferences proposed by the defendants. Our review
of the council proceedings of October 10, October 17, and January
8 reveals no instance in which a councilman who voted in favor
of the ordinances indicated that he did so on the basis of the
'nontrivial effect' test of the unmodified opinion in Friends
of Mammoth.
Defendants point out that the eight councilmen who voted in favor
of the resolution filed declarations on December 6, prior to the
trial court's pronouncement of its test of 'significant effect,'
which stated that the oil drilling districts were not projects
such as might have a significant environmental effect. Relying
on these declarations, defendants contend that the eight councilmen
had made up their minds before the January 8 meeting; defendants
imply that no test set out by the trial court - correct or incorrect
- would have influenced them.
The argument is certainly a strange one. As the Attorney General
points out, it is analogous to a contention that an erroneous
jury instruction is not prejudicial because the jurors had already
resolved to convict the defendant regardless of the court's instructions.
When, as here, a court remands a case to an administrative agency
with directions to follow a specific legal test, we must presume
that the administrators faithfully followed those instructions.
(See Evid. Code, § 664.) [FN24] The presumption is
rebuttable, but the declarations of the councilmen filed prior
to the trial court's statement of its test fall far short of showing
that the council subsequently failed to follow that test.
FN24 Evidence Code section 664 states that 'It is presumed
that official duty has been regularly performed.' This is a rebuttable
presumption going to the burden of proof. (Evid. Code, §
660.)
Section 21168.5 permits a court to reverse a determination of
a public agency for 'prejudicial abuse of discretion.' 'Abuse
of discretion is established if the agency has not proceeded in
a manner required by law.' (Pub. Resources Code, § 21168.5.)
The council's use of an erroneous legal standard constitutes a
failure to proceed in the manner required by law. (See Gilles
v. Department of Human Resources Development (1974) 11 Cal.3d
313, 329 [113 Cal.Rptr. 374, 521 P.2d 110].) The record in this case demonstrates that this error of law was prejudicial. The present case, in fact, is an excellent example of those close and arguable cases in which an EIR should be prepared. With the council confronting allegations, supported by expert testimony but controverted by opposing testimony, that the drilling projects could cause an environmental disaster, the value of an impartial environmental analysis cannot be gainsaid. The intense and continuing public concern with these hazards, and with the impact of oil drilling in the vicinity of public beaches and residential neighborhoods, equally suggests the need for a thorough and impartial study. Under these circumstances, we believe that the council, employing a proper test, would have decided to direct preparation of an EIR.
4. Conclusion.
For the reasons stated in parts 2 and 3 of this opinion, we conclude
that the judgment of the superior court must be reversed. The
superior court shall set aside the ordinances establishing the
oil drilling districts on the ground that the city, in enacting
these ordinances, failed to comply with the provisions of CEQA.
The city, of course, may choose to reenact these ordinances after
complying with the requirements of that act. [FN25]
FN25 Occidental suggests than an opinion requiring the
trial court to set aside the ordinances will require Occidental
to file new applications for the creation of the drilling districts,
and compel the city to follow anew all procedural steps preparatory
to the enactment of the ordinance. To quiet such apprehensions,
we note that our opinion does not compel the trial court to vacate
any action, such as the filing of an application for an ordinance,
which may lawfully precede the city's determination whether to
prepare an environmental impact report. Occidental has not called
our attention to any ordinance or rule of the City of Los Angeles
which would, under the circumstances of this case, compel repetition
of any actions which may lawfully precede that determination.
The judgment is reversed, and the cause remanded to the superior
court to proceed in accordance with the views herein expressed.
[FN26]
FN26 In view of our disposition of this appeal, plaintiffs'
motion for leave to produce new evidence on appeal is moot.
Wright, C. J., Sullivan, J., and Molinari, J., [FN*] concurred.
FN* Assigned by the Chairman of the Judicial Council.
CLARK, J.
I dissent. When enacting a zoning ordinance in 1972, the Los Angeles City Council was not required to render a written Negative Declaration to evidence its determination that the ordinance would have no significant effect on the environment. There was no express requirement of such writing and no basis for implying one. The city council proceeded in a manner required by law, and the evidence before us fully supports the determination that the proposed test holes will have no significant effect on the environment.
In enacting the present zoning ordinances, the city council performed
a legislative function. (Johnston v. City of Claremont (1958)
49 Cal.2d 826, 835-836 [323 P.2d 71]; Clemons v. City of Los Angeles
(1950) 36 Cal.2d 95, 98 [222 P.2d 439]; Lockard v. City of Los
Angeles (1949) 33 Cal.2d 453, 460 [202 P.2d 38].) As recognized
by the majority (ante, pp. 74-75), the city council was not required
to hold an evidentiary hearing, and judicial review of the council's
action is governed by traditional mandamus principles rather than
the administrative mandamus procedure of Code of Civil Procedure
section 1094.5. (Pub. Resources Code, §§ 21168, 21168.5,
21168.7.) Thus the requirement of administrative findings set
forth in section 1094.5 (see Topanga Assn. for a Scenic Community
v. County of Los Angeles (1974) 11 Cal.3d 506, 511, 522 [113 Cal.Rptr.
836, 522 P.2d 12]) is not applicable to the adoption of the ordinances,
[FN1] and no other principle of general law or charter
provision has been cited or found requiring the Los Angeles City
Council to make findings of fact in adopting ordinances.
FN1 The statement of the majority that Occidental in seeking
rezoning was circumventing the requirement of a conditional use
permit is misleading and unfortunate. (Ante, p. 76.) In Topanga,
the court stated that rezoning was the appropriate method to obtain
a special use for a large parcel. (11 Cal.3d at p. 522.)
There is no express provision in the California Environmental
Quality Act (Pub. Resources Code, § 21000 et seq.) (hereinafter
CEQA), [FN2] as enacted in 1970 or in its present form,
requiring prior to project approval either 'findings' or any written
determination that a project will not have a significant effect
on the environment. To the contrary, the language of CEQA indicates
that written findings were not contemplated for such a determination.
Section 21168.5 provides that abuse of discretion may be established
either by showing that the agency failed to proceed in a manner
required by law or by showing that the 'determination or decision'
is not supported by substantial evidence. (§ 21168.5; italics
added.) Clearly the act contemplates only that the determination
be made. If the Legislature had intended written findings, it
could easily have said that abuse of discretion is established
when the decision is not supported by the findings, or the findings
are not supported by substantial evidence. (Cf. Code Civ. Proc.,
§ 1094.5;
FN2 Unless otherwise stated, all statutory references are
to the Public Resources Code. Topanga Assn. for a Scenic Community
v. County of Los Angeles, supra, 11 Cal.3d 506.) [FN3] FN3 The absence of an express statutory requirement of 'findings' distinguishes the instant case from Topanga. In Topanga we determined that the administrative mandamus procedure of Code of Civil Procedure section 1094.5, by providing that abuse of discretion is established if the administrative decision ''is not supported by the findings, or the findings are not supported by the evidence," required that agencies subject to review by administrative mandamus must set forth specific findings. (11 Cal.3d at p. 515.) Our reasoning in Topanga was that the Legislature must have intended specific findings in view of the fact that it established the reviewing court's duty to compare the evidence and ultimate decision to ''the findings' ...' (11 Cal.3d at p. 515; italics added.) We noted that '[i]f the Legislature had desired otherwise, it could have declared as a possible basis for issuing mandamus the absence of substantial evidence to support the administrative agency's action.' (11 Cal.3d at p. 515; italics added.) On the basis of the Topanga rationale we must conclude the Legislature did not intend findings in the case of CEQA, for it has provided that the evidence be compared only to the 'determination or decision' of the agency. (§ 21168.5.) The majority disclaims having imposed any requirement of findings on the legislative process, stating that it requires only that the determination of no significant effect on the environment be put in writing. (Ante, p. 81.) The majority reasons that in the absence of such writing there is no way a court can tell if the agency actually made the determination. If this is the case, the requirement would seem fully satisfied by either the declarations of the councilmen submitted prior to trial or the council resolution of 8 January 1973. These eliminate the majority's objection to the record, i.e., they show that a determination was in fact made prior to approval of the ordinances.
By the lengthy impeachment of the council resolution (ante, pp.
82-88), however, the majority requires more of a negative declaration
than a mere written statement of the fact of determination. The
resolution adequately satisfied the only formal requirement purportedly
imposed by the majority. By going behind the resolution, the majority
in effect requires not only that the determination be reduced
to writing but also that it affirmatively evidence proper supporting
reasons.
Further support for the conclusion that CEQA did not require a
written Negative Declaration is furnished by this court's decision
in Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d
247, 270 [104 Cal.Rptr. 761, 502 P.2d 1049]. Friends of Mammoth
expressly rejected a requirement of written findings when an agency
approves a project after preparation of an environmental impact
report. It appears inconsistent to imply a requirement of written
findings for a determination that no environmental impact report
is necessary when this court refused to imply a requirement for
such findings for the more important decision whether to approve
a project in light of the admitted adverse environmental effects
disclosed by an environmental impact report.
Sound practical considerations militate against the implication
of formalistic requirements into the legislative process. When
the legislative body has complied with all substantive requirements
and all express formalistic requirements, the majority's will
should not be frustrated by adding a formalistic requirement,
the necessity for which could only be foreseen by those possessing
acute clairvoyance.
The unreasonableness of implying a formalistic requirement into
the legislative process is dramatically illustrated by the requirement
implied by the majority today. Unless the legislative body somehow
anticipated today's implied requirement of a written determination,
every ordinance affecting the use of land adopted between the
enactment of CEQA in 1970 and the adoption of the guidelines in
1973 has been improperly adopted, including ordinances involving
projects where 'it can be seen with certainty that the activity
in question will not have a significant effect on the environment.'
Although projects coming within the quoted term are presently
exempt from the written Negative Declaration requirement expressly
imposed by the guidelines (Cal. Admin. Code, tit. 14, § 15060),
the guidelines with the three-tiered structure relied upon by
the majority were not adopted until 1973. [FN4] Probably
thousands of ordinances including those coming within the quoted
term were not properly adopted under today's majority opinion.
[FN5] FN4 The 1972 amendments to CEQA provide that the guidelines shall contain a list of classes of projects which the Secretary of the Resources Agency has found do not have a significant effect on the environment. (§ 21084.) A project falling within these classes is exempt from the provisions of CEQA. (§§ 21084, 21085.) The guidelines presently contain a list of such projects. (Cal. Admin. Code, tit. 14, §§ 15100- 15112.) However, CEQA itself does not exempt any projects other than ministerial ones and emergency repairs to public service facilities (§§ 21080, 21085); hence there were no projects other than those mentioned in CEQA which were exempt until promulgation of the guidelines.
In general the guidelines establish a three-tiered structure -
projects for which an EIR is filed; projects for which a Negative
Declaration is filed, and categorically exempt projects. However,
only a two-tiered structure is provided as to the type of ordinance
before us. Activities for the purpose of 'basic data collection'
or 'resource evaluation' are categorically exempt unless the activity
will result in a 'serious or major disturbance to an environmental
resource.' (Cal. Admin. Code, tit. 14, § 15106.) If the activity
would result in a 'serious or major disturbance to an environmental
resource,' it would seem perforce that an EIR is required. If
not, the activity is exempt. In the instant case, if the city
council finds such a disturbance, an EIR must be prepared. If
it does not so find, there is not even a requirement of a Negative
Declaration, for the guidelines do not require filing of a Negative
Declaration when a public agency approves a project that is categorically
exempt. (Cf. Cal. Admin. Code, tit. 14, § 15035.5.)
FN5 Since the majority has implied the writing requirement,
it could imply the exemption too - once the fabric is woven from
thin air, it may be embellished at will. Nevertheless, implication
of the requirement and the exemption in the absence of any language
dealing with writing requirements or exemptions from them appears
a clear invasion of the legislative process.
In imposing the requirement of a written determination on the
legislative process, the majority also starts us down a dangerous
path which, if followed in the future, will have unfortunate consequences.
The majority implies the requirement not on the basis of language
dealing with writings; the only language relied on is that set
forth in the purposes of the act. However laudable or noble the
purposes of a statute, the method to be followed by the city council
in adopting ordinances under it should remain the same unless
the statute itself or authorized regulations provide for a different
method of enactment. To vary the method of enactment, depending
upon judges' opinions as to the virtues of statutory purpose,
is an improper interference with the legislative process and can
only lead to confusion and frustration of the majority's will.
Since the city council was not required to produce written findings of fact or a written determination in the form of a Negative Declaration, it must be presumed that official duty has been regularly performed (Evid. Code, § 664) and that the legislative body has ascertained the existence of those facts essential to its action (e.g., Orinda Homeowners Committee v. Board of Supervisors (1970) 11 Cal.App.3d 768, 775 [90 Cal.Rptr. 88]). As the council passed the ordinances without preparing an EIR, it must be presumed it had determined the informational holes would not have a significant effect on the environment.
Evidence of events occurring after the 17 October 1972 passage
of the ordinances, including submission of declarations by the
councilmen and the council resolution of 8 January 1973 (both
of which stated that the ordinances were approved on 17 October
1972, because the council believed the limited drilling would
have no significant effect on the environment) does not establish
that the council failed to make the determination. If anything
the evidence tends to support the presumption that the determination
was made. [FN6] In any event it was unnecessary for defendants
to prove that the determination was actually made, for the issue
should have been resolved in their favor when plaintiffs failed
to adduce evidence sufficient to overcome the presumption.
FN6 In a 17-page letter of 3 October 1972 the city attorney
advised the city council that all projects which may have a significant
effect on the environment required preparation of an EIR and specifically
concluded that all zone changes should be accompanied by an EIR
if the permitted use may have a significant effect on the environment.
I conclude the council proceeded in a manner required by law.
The inquiry thus is whether the council's determination is supported
by substantial evidence. (§ 21168.5.) There is ample evidence
in the record to sustain the decision. The ordinances contemplated
drilling of extremely limited scope. Only two informational test
bore holes were authorized; the entire operation was to last only
90 days, with the rigs to be removed upon completion; and a number
of other restrictions and conditions were imposed on the project.
Under no circumstances was commercial production of oil to be
permitted. With respect to the impact of the drilling vibrations,
Occidental produced expert testimony that vibrations from the
drilling at a point 150 feet from the drill site would be less
than those caused by movement along the nearby highway, and 5
to 10 times less than the ambient vibrations outside the courtroom
door. As to the possibility of a 'blowout,' there was evidence
that the incidence of blowouts at urban drill sites was only 2/10ths
of 1 percent. [FN7] Occidental also introduced photographs
demonstrating methods by which the drill site would be made aesthetically
consonant with adjacent land uses. The foregoing represents only
a sampling of the evidence marshalled by Occidental to dispel
any doubts about the environmental effect of the test holes.
FN7 The experts for plaintiffs conceded that the incidence
of blowouts was 'very low' and that the petroleum industry had
developed 'very sophisticated means' of preventing such accidents.
The limited drilling authorized by the ordinances is a 'basic
data collection' or 'resource evaluation' activity inasmuch as
the object of the drilling is to determine the size and yield
of the Riviera oil field and obtain data essential to a thorough
environmental assessment of oil production. Unless the city council
determines that this activity will result in a 'serious or major
disturbance to an environmental resource' the proposed test holes
will be categorically exempt from CEQA under the present guidelines.
(Cal. Admin. Code. tit. 14, § 15106.) In the event the council
concludes the drilling will not result in a serious or major disturbance
to an environmental resource, the city council will not be required
to render a written Negative Declaration nor any writing whatsoever
prior to approval of the ordinances, for the guidelines do not
require any writing for a determination that a project is categorically
exempt from CEQA. The agency 'may' file a brief notice of exemption
but is not compelled to. (Cal. Admin. Code, tit. 14, § 15035.5.)
This observation only highlights the futility, as well as the
inappropriateness, of the requirement which the majority implies
today.
I would affirm the judgment. [FN8] FN8 The majority balks at resolving a number of questions highly pertinent to cases arising under CEQA, which I feel leaves the disposition of this case and others uncertain to an unfair extent. Specifically, the majority does not decide what is required in a Negative Declaration and declines to formulate a more definite test for determining what constitutes a 'significant effect' on the environment. Thus, while the city council must now redetermine the environmental issues involved, it does not even have assurance that adherence to the standards set forth in the guidelines is the proper course to pursue. The majority remands the case without informing the council what is expected of it in future deliberations.
The unwarranted aspersions cast by the majority on the application
of the political process in this case perhaps explain the majority's
willingness to reach its desired result without confronting the
important questions of law. The record, however, provides no basis
for believing the political channels were abused in any manner.
McComb, J., and Burke, J., [FN*] concurred.
FN* Retired Associate Justice of the Supreme Court sitting
under assignment by the Chairman of the Judicial Council.
The petition of respondent Occidental Petroleum Corp. for a rehearing
was denied January 29, 1975, and the opinion was modified to read
as printed above. Molinari, J., [FN**] sat in place of
Mosk, J., who deemed himself disqualified. Clark, J., was of the
opinion that the petition should be granted.
FN** Assigned by the Chairman of the Judicial Council.
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