By Kevin Hall
The Fresno mayor and City Council are working to legally bulletproof future industrial development from citizen lawsuits that challenge their dangerous growth plans. Elected officials seek to wrap a pair of fatally flawed environmental impact reports (EIRs) like a legal Kevlar shield around an 8,000-acre chunk of the city’s West, South Central and Southeast communities. There the practice of increasing and concentrating industrial pollution—embedded in more than a century of institutional racism—would continue unabated.
“It’s all about mitigation now,” Council President Luis Chavez wrote in a since deleted tweet two years ago, a cynical reference to the city’s longstanding practice of papering over public health impacts by claiming a project’s economic benefits outweigh the suffering and death it will cause.
While the California Environmental Quality Act (CEQA) requires a full delineation of cause, effect and mitigation, the law does not block growth. If elected officials can honestly demonstrate they’ve conducted a thorough estimate of impacts and made every effort to reduce harm through direct on-site reductions or through fees paid to fund off-site mitigation, they can make a finding of overriding economic consideration even though some effects cannot be mitigated to a less than significant level, as legally defined.
Despite the Council president’s 12 years at city hall, the first six as District 5 staff to Sal Quintero and the last six as Quintero’s successor, the basics of CEQA seem to allude his grasp. Chavez’s malinformed Twitter assertion runs counter to fact, state law and the string of lawsuits filed in recent years by Leadership Counsel for Justice and Accountability with strong support from Shute, Mihaly & Weinberger and, in their most recent filing, a comment letter with Golden Gate University School of Law.
City leaders appear to be learning little about CEQA’s requirement for a complete examination of the facts, despite additional pressure from the state attorney general, the California Air Resources Board and the governor’s own Strategic Growth Council (SGC). The SGC is a body of six department secretaries overseeing billions of dollars in greenhouse gas reduction funds, including hundreds of millions in direct investment in south Fresno.
In their 77-page letter submitted on May 10 on behalf of a coalition of residents and community groups, attorneys Ashley Werner with Leadership Counsel and Lucas Williams with Golden Gate offer city leaders a crash course in environmental law and the steps needed to best protect the public interest.
Rooted in a lawsuit first reported in the April 2018 Community Alliance, South Central Neighbors United then sued the city for failing to protect public health by refusing to follow CEQA by ignoring 6,000 new daily truck trips, among other impacts on residents, when approving the Caglia Enterprises industrial warehouse application. Chavez, District 1 rep Esmeralda Soria and the northeast’s Garry Bredefeld all joined the unanimous vote; the other four have since left office.
In a defense weaker than those used to defend police killings, city leaders strangely claimed the 2014 General Plan EIR was adequate. They lost in court. Badly. Now they’ve not only revised their work but also claim it’s so strong it should be considered “program level,” meaning future industrial developers would need only complete a simple checklist to demonstrate they pose no additional threats to public health or safety. Specific projects would not be subject to further CEQA review.
To make such a promise for such a vast area—five square miles—slated for nearly exclusive industrial growth wrapping in and around vulnerable neighborhoods, and in some cases running right over them, city leaders seek to ignore human health and safety as well as the law. It appears they’ll again be asking a court to agree that the years 2014 to 2019 of the EIR covering the General Plan’s impacts should simply be ignored—and worse.
According to the comment letter: “The City has truncated its review such that it avoids the obligation to ensure the impacts of the project as a whole are addressed. Nor does the City consider any alternatives that even attempt to reduce any of the significant and unavoidable impacts.”—Comment Letter, Leadership Counsel for Justice and Accountability, Golden Gate University Environmental Law and Justice Clinic, City of Fresno General Plan Recirculated Draft Programmatic Environmental Impact Report and Greenhouse Gas Reduction Plan (SCH # 2019050005), May 10, 2021.
The attorneys point out the city’s EIR “ignores one of its fundamental purposes under CEQA,” and then it doubles down on the error “with its intention to allow other projects and plans to tier from it for their own environmental review.”
Meanwhile, the City is busily applying a second layer of protective coating, the South Central Specific Plan Notice of Preparation of the EIR. Having painted themselves into a corner with the failed General Plan EIR, now being recirculated for the second time as a program-level EIR, and with industrial developers pushing for approvals, the South Central Specific Plan effort was launched. However, the same flaws described above are found here, too, despite residents’ efforts to be heard. They seek lower-intensity business uses and buffer zones, direct involvement in the planning process and full consideration to housing needs and submitted an extensive comment letter on May 14.
Kevin Hall hosts Climate Politics on KFCF 88.1 FM every second and fourth Friday, 5 p.m. to 6 p.m. He tweets as @airfrezno and @sjvalleyclimate, coordinates an informal network of climate activists at www.valleyclimate.org and can be contacted at email@example.com for presentations and information.