By Damon P. Mamalakis and Taiga Takahashi

In September 2012, the Court of Appeal in Mount Shasta Bioregional Ecology Center v. County of Siskiyou affirmed the approval of a 15 MW biomass-fueled cogeneration plant in northern California.[1]  This case is the first published state court opinion regarding a challenge to the approval of a biomass energy project in California.

At the core of the lawsuit was the California Environmental Quality Act (CEQA), with challenges to the adequacy of the Environmental Impact Report (EIR) and its analysis regarding alternatives, air quality, noise, and water resource impacts, among others.[2]  The case highlights the importance of managing risk throughout the administrative approval process, specifically in developing a thorough, well-documented EIR that allows for informed decision making.  In doing so, project applicants may enjoy the protection of a relatively high degree of deference in judicial review, even where the EIR has some errors (as CEQA does not require perfection, but rather informed decision making), and can thereby help control the likelihood of surviving a challenge in court.

For a more complete discussion of the Mount Shasta case, please see our client alert. The Mount Shasta opinion is available here.

[1] No. C064930 (Cal. Ct. App. Sept. 26, 2012) (ordered published Oct. 18, 2012).

[2] In the Superior Court, the petitioners also challenged the analysis regarding other environmental impacts, including climate change, aesthetic and visual resources, traffic, and geology and soils.  Memorandum of Decision, Mount Shasta Bioregional Ecology Ctr. v. County of Siskiyou, No. SC CV PT 08 8144 (Cal. Super. Ct. Feb. 22, 2010).  The Superior Court’s judgment on these claims was not a part of the appeal.  See Appellants’ Opening Brief, Mount Shasta Bioregional Ecology Ctr. v. County of Siskiyou, No. C064930 (Cal. Ct. App. Oct. 18, 2010).  In a related lawsuit, petitioners challenged the Siskiyou County Air Pollution Control District’s determination of best available control technology for the project and brought other claims based on alleged violations of procedural due process.  Verified Petition for Writ of Mandate, Mount Shasta Bioregional Ecology Ctr. v. Siskiyou County Air Pollution Control Dist., No. SC CV PT 09 0933 (Cal. Super. Ct. July 6, 2009).  The Superior Court also rejected this challenge, and the Court of Appeal affirmed the Superior Court’s judgment in an unpublished opinion.  Mount Shasta Bioregional Ecology Ctr. v. Siskiyou County Air Pollution Control Dist., No. SC CV PT 09 0933 (Cal. Super. Ct. May 4, 2010), aff’d, No. C065668 (Cal. Ct. App. Sept. 26, 2012).