Friends of La Vina v. County of Los Angeles

In Friends of La Vina v. County of Los Angeles (1991) 232 Cal.App.3d 1446 (disapproved on other grounds in Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, the court faced the question whether a public agency could lawfully require preparation of an EIR (and responses to comments about the EIR) by a private consultant for the developer. The majority said, "yes." (Friends of La Vina, supra, 232 Cal.App.3d at p. 1450.) Because we find its well-reasoned decision dispositive, we quote it at some length. "CEQA, the Guidelines, and all relevant case law . . . consistently teach that an agency may comply with CEQA by adopting EIR materials drafted by the applicant's consultant, so long as the agency independently reviews, evaluates, and exercises judgment over that documentation and the issues it raises and addresses." (Friends of La Vina, supra, 232 Cal.App.3d at p. 1452.) "Section 21082.1, the section most heavily relied on by the trial court and plaintiffs, itself refutes the notion that an EIR must be the product of the agency's own authorship, to the exclusion of the applicant or its consultant. Fn. In the same breath as it requires agency 'preparation' of the EIR, the statute specifically authorizes the agency not only to consider outside comments and information but to include them in the EIR. (Accord, Guidelines, 15084, subds. (c), (d)(3) draft EIR, 15132, subd. (b) final EIR.) . . . Thus, the primary 'preparation' statute authorizes and virtually requires that the EIR be 'prepared' using outside submissions, not merely agency draftsmanship." (Friends of La Vina, supra, 232 Cal. App.3d at pp. 1452-1453.) "The Guidelines, constituting authoritative interpretive prescriptions of CEQA practice and procedure, also validate documentary reliance on an applicant's consultant. Fn. Guidelines section 15084 commences by repeating the agency preparation requirement of section 21082.1, with respect to draft EIRs. The section proceeds, in subsection (d), to set forth five permissible methods of such agency preparation. One of these is, 'Accepting a draft prepared by the applicant, a consultant retained by the applicant, or any other person.' (Guidelines, 15084, subd. (d)(3); cf. Guidelines, 15084, subd. (c).) The regulation goes on to add, however, 'Before using a draft prepared by another person, the lead agency shall subject the draft to the agency's own review and analysis. The draft EIR which is sent out for public review must reflect the independent judgment of the lead agency. The lead agency is responsible for the adequacy and objectivity of the draft EIR.' (Guidelines, 15084, subd. (e).) In short, this Guideline affirmatively defines and endorses 'preparation' of a draft EIR by precisely the method the County and applicants contend was followed in this case." (Friends of La Vina, supra, 232 Cal.App.3d at pp. 1453-1454.) "Moreover, a consistent series of appellate decisions have endorsed local agencies' resort to applicants' consultants in the preparation of both draft and final EIRs, subject to the qualification of independent agency involvement and judgment, as against charges of unlawful delegation. See City of Poway v. City of San Diego (1984) 155 Cal.App.3d 1037, 1042; Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 908; Concerned Citizens of Palm Desert, Inc. v. Board of Supervisors (1974) 38 Cal.App.3d 272, 287-288." (Friends of La Vina, supra, 232 Cal.App.3d at pp. 1454-1455.) "The foregoing cases consistently confirm that the 'preparation' requirements of CEQA ( 21082.1, 21151) and the Guidelines turn not on some artificial litmus test of who wrote the words, but rather upon whether the agency sufficiently exercised independent judgment over the environmental analysis and exposition that constitute the EIR. Like section 21082.1 and the Guidelines, the cases recognize that preparation of an EIR is not a solitary, ruminative process but an inquisitive, cooperative one, in which the applicant and its experts naturally can and will be heavily involved, perhaps to the point of initially drafting the text." (Friends of La Vina, supra, 232 Cal.App.3d at p. 1455.) In sum, the county directed the applicant to hire a private consultant to prepare the draft EIR. The county reviewed it, and the consultant revised the draft several times. The county then adopted and released the draft EIR. (232 Cal.App.3d at pp. 1450-1451.) The reviewing court held that the procedure did not violate CEQA. "An agency may comply with CEQA by adopting EIR materials drafted by the applicant's consultant, so long as the agency independently reviews, evaluates, and exercises judgment over that documentation and the issues it raises and addresses." (232 Cal.App.3d at p. 1452.)