Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection

In Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, the California Department of Forestry and Fire Protection failed to consider some public comments regarding Pacific Lumber Company's sustained yield plan (SYP). (Id. at p. 482.) The Supreme Court considered the rule, articulated in Rural Landowners Assn. v. City Council, 143 Cal.App.3d 1013, that an error consisting of a failure to comply with CEQA is prejudicial where it results in a subversion of the purposes of CEQA by omitting information from the environmental review process. (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection, supra, 44 Cal.4th at p. 486.) The Supreme Court stated that the "rule emerges out of the difficulty courts have in assessing the effects of the omitted information, much of it generally highly technical, on the ultimate decision." (Ibid.) It recognized that "a trial court's 'independent judgment that the information was of "no legal significance" amounts to a "post hoc rationalization" of a decision already made, a practice which the courts have roundly condemned.' (Rural Landowners Assn., supra, 143 Cal.App.3d at p. 1021.)" (Ibid.) But the court also recognized that insubstantial or de minimis errors in the CEQA process are not prejudicial. (Environmental Protection Information Center, at p. 486; see id. at p. 487, fn. 10.) The Supreme Court stated: "If it is established that a state agency's failure to consider some public comments has frustrated the purpose of the public comment requirements of the environmental review process, then the error is prejudicial. (See Sierra Club, supra, 7 Cal.4th at pp. 1236-1237; Rural Landowners Assn., supra, 143 Cal.App.3d at pp. 1022-1023.)" (Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection, supra, 44 Cal.4th at p. 487.) In that case, however, the department's failure to consider public comments was not prejudicial because the unconsidered comments were merely duplicative of other comments that had been considered. (Id. at pp. 487-488.) The court stated: "When a SYP or EIR is challenged for failing to consider comments alleged to contain significant new information, it is the burden of the agency that erroneously omitted the comments to establish they are merely duplicative" unless "their duplicative nature essentially is not contested ... ." (Id. at p. 488.)