Environmental Defense Fund, Inc. v. Coastside County Water Dist.

Decision Date12 September 1972
CourtCalifornia Court of Appeals Court of Appeals
Parties, 4 ERC 1573, 2 Envtl. L. Rep. 20,593 ENVIRONMENTAL DEFENSE FUND, INC., et al., Plaintiffs and Appellants, v. COASTSIDE COUNTY WATER DISTRICT et al., Defendants and Respondents. People of the State of California, Intervenor and Appellant. Civ. 31455.

Evelle J. Younger, Atty. Gen., E. Clement Shute, Jr., Donatas Januta, Deputy Attys.

Gen., San Francisco, for appellant People of the State.

Hanson, Bridgett, Marcus & Jenkins, David J. Miller, San Francisco, for respondents.

DEVINE, Presiding Justice.

This is an appeal from an order dissolving a preliminary injunction. The injunction had prevented further construction of a water supply and storage system until an environmental impact report should be submitted to the San Mateo County Planning Commission, copies be sent to counsel, and further hearing be held. At the subsequent hearing, a report having been submitted to the commission and copies duly sent, the court dissolved the injunction, saying in a memorandum accompanying the order, 'It is not the function of this court to consider the adequacy or thoroughness of this report in these proceedings.' Plaintiffs appealed, contending that the court did have authority and the duty to consider the adequacy of the report (although not the correctness of its conclusions), and sought writ of supersedeas. We granted supersedeas, because the project would have been completed during the process of appeal, thereby reviving the preliminary injunction and halting further construction. Respondents sought a hearing by the Supreme Court, for the purpose of obtaining an order vacating the writ of supersedeas, but hearing was denied.

The project of the Coastside County Water District is designed to increase the supply of water to an area along the coast from a point south of the City of Half Moon Bay to the southerly limits of Moss Beach. Almost all of the water for the needs of the area presently is supplied, by contract, from the water system of the City and County of San Francisco. But the contract requires that the district develop local sources of supply, and that water in excess of 1.5 million gallons per day be taken from a certain reservoir, to which a costly pipeline would have to be built. The needs of the area are pressing against the present sources of water. In 1970 the district engaged Kennedy Engineers to prepare a 'conceptual design report' regarding development of Denniston and San Vicente Creeks. Appropriative rights to these creeks had been granted by the State Resources Control Board in 1969, complete application to the proposed use to be made on or before December 1, 1972. On January 31, 1971, the conceptual design report was submitted. In this report there were proposed the construction of (1) a water treatment plant adjacent to Denniston Creek, (2) a storage tank, (3) a diversion dam on the San Vicente Creek, (4) a pump station and five wells on both creeks, and (5) the necessary interconnecting pipelines between the facilities. In the report it was noted that this project ('Denniston Creek Project'), when completed, would approximately double the district's water supply (4,000 meters), thereby permitting the installation of 3,200 new residential water services. However, the report also noted that the Denniston Creek portion of the project could be constructed as a first phase (i.e. (1) the installation of the pump station to divert water from the Denniston Creek, (2) the water treatment plant, (3) the storage tank, and (4) the necessary interconnecting pipelines) with the San Vicente portion being delayed until required by district water demand.

On July 13, 1971, the board of directors drew up and approved the plans and specifications for the Denniston Creek portion of the 'project.' The contract was awarded to the low bidder, COAC, Inc., on September 14, 1971, at a public meeting of the board. At this meeting, it seems that the 'Denniston Creek' portion of the 'Denniston Creek Project' was considered as only the first phase in the implementation of the entire development, because in answer to a director's question, Mr. Kennedy replied that the project would double the district's water capacity. This result would be possible, according to the data supplied, only if the entire project were ultimately completed.

On September 29, 1971, one of the plaintiffs to this lawsuit, Committee for Green Foothills, a nonprofit corporation, admonished the district, in writing, of the necessity for filing an environmental impact report. No report having been filed, three nonprofit corporations, Environmental Defense Fund, Inc., Committee for Green Foothills, and Save Our Shoreline, and two residents of the district filed the complaint for injunction. Shortly thereafter, the Attorney General filed a complaint in intervention on behalf of the People of the State of California, seeking the same relief. It was the position of the district that it was not required by law to file an EIR. 1 It is unnecessary to examine that matter now. The judge decided that the statutes do require the EIR and on February 10, 1972, granted a preliminary injunction against continuing the construction; the district did not appeal, but filed an EIR, prepared by Kennedy Engineers, eight days after the issuance of the injunction. That the EIR was insufficient to meet the demands of the California Environmental Policy Act (Pub.Res.Code § 21000 et seq.) was asserted by plaintiffs before the San Mateo Planning Commission and is asserted before us now. The particulars are set forth below.

The planning commission met on March 8 and March 22, 1972. Counsel for the plaintiffs and for the plaintiff in intervention, respectively, objected that the report was inadequate. On March 27, 1972, the planning commission issued a determination that Phase I of the water district's project was in conformity with the county master plan pursuant to section 65402 of the Government Code; and that the EIR, with respect to Phase I, was 'acceptable' in accordance with the California Environmental Quality Act (CEQA). On April 6, 1972, the court issued an order dissolving the injunction, after having heard objections raised by plaintiffs and plaintiff in intervention. The court found that, since the EIR was filed with and accepted by the San Mateo Planning Commission, the requirements of CEQA had been complied with, and, as said above, that it is not the function of the court to consider the adequacy or thoroughness of the report.

We are faced with the problem of deciding what are the functions of the district, the county planning commission, and the superior court in respect of environmental impact reports submitted under the provisions of the California Environmental Quality Act. We are informed by counsel for the parties (who are knowledgeable in the law of conservation) that this is the first case in which the problem has been presented, for although there are other cases in various stages of appeal, they have to do with the question whether it is the duty of different agencies to file an EIR at all, or whether the act's requirements are retroactive to projects commenced before it was enacted. But although prior judicial decisions are lacking and although the Office of Planning and Research, which is charged with the duty of developing objectives, criteria and procedures to assure the orderly preparation and evaluation of environmental impact reports (Pub.Res.Code, § 21103) has not yet issued guidelines (the federal agency, the Council on Environmental Quality, has done so (36 Fed.Reg. 7724)), we are not without potent assistance in interpreting the new law.

In the first place, the Legislature has declared that it is the policy of the Environmental Quality Act of 1970 (which became effective November 23, 1970) to '(d)evelop and maintain a high-quality environment now and in the future, and take all action necessary to protect, rehabilitate, and enhance the environmental quality of the state.' (Pub.Res.Code, § 21001, subd. (a).) This declaration is followed by others of like nature, concluding with a statement In the second place, judges are not unmindful of the need for protection of natural resources, and although they are necessarily less free to create effective action than are legislative and executive bodies and the electorate, nevertheless, as was said by a former Attorney General, 'courts exist as the final vindicators of these rights (to environmental protection) and the final arbiters of the interests that compete before legislative and administrative bodies.' (Thomas C. Lynch and Jan S. Stevens, 'Environmental Law--The Uncertain Trumpet,' 5 U.S.F.L.Rev. 10, 24.)

of policy to '(r)equire governmental agencies at all levels to consider qualitative factors as well as economic and technical factors and long-term benefits and costs, in addition to short-term benefits and costs and to consider alternatives to proposed actions affecting the environment.' (Pub.Res.Code, § 21001, subd. (g).) To be sure, the effectuating sections of the act are less heroic than is the declaration of policy, perhaps because the act is a 'first step' and because implementation by the Office of Planning and Research is expected; but the declaration justifies, if indeed it does not demand, that the operative parts of the act be construed liberally.

Lastly, we have the help of several decisions, referred to at appropriate places below, by federal courts in construing the National Environmental Policy Act. (83 Stat. 852, 42 U.S.C. § 4321 et seq.) The federal act became law on January 1, 1970, just a bit short of a year before that of California. The two statutes are so parallel in content and so nearly...

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