fair argument standard in California

2026(Sierra Club v. California Dept. of Forestry & Fire Protection (2007) 150 Cal.App.4th 370, 381 .) An agency applying the fair argument standard to assess the adequacy of mitigation measures may not weigh evidence: “If there [is] substantial evidence that the proposed project might have a significant environmental impact, evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR.” (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1112 .) And courts review de novo whether an agency correctly applied the fair argument standar

2025(Berkeley Hillside, supra, 60 Cal.4th at p. 1114 ; see also Aptos, supra, 20 Cal.App.5th at pp. 1048–1049.) This is “an essentially factual inquiry.” (Berkeley Hillside, supra, 60 Cal.4th at p. 1114 .) If so, the City was obligated to “apply the fair argument standard [to] determin[e] whether ‘there is a reasonable possibility [of] a significant effect on the environment’ ” caused by that cumulative impact.

2024(Laurel Heights, at p. 1135; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75 [adoption of fair argument standard]; §§ 21151, subd. (a), 21080, subd. (b) [exceptions], 21082.2, subd. (a) [fair argument standard]; CEQA Guidelines, § 15064(f)(1).) “‘Significant effect on the environment’ means a substantial, or potentially substantial, adverse change in the environment.” (§ 21068; Laurel Heights, at p. 1123.) “‘“May” means a reasonable possibility.’” (Clews Land & Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 191 .) The fair argument standard creates a “low threshold”

2015Stated another way, if the [reviewing] court perceives substantial evidence that the project might have such an impact, but the agency failed to secure preparation of the required EIR, the agency’s action is to be set aside because the agency abused its discretion by failing to proceed ‘in a manner required by law.’ ” (Friends of “B” Street, supra, at p. 1002.) There have been several attempts to extend the fair argument standard to CEQA determinations other than the one at issue in No Oil, supra, 13 Cal.3d 68 , i.e., whether to prepare an EIR for a nonexempt project.

2023Applicable Legal Standards “A court reviewing an agency’s decision not to prepare an EIR in the first instance must set aside the decision if the administrative record contains substantial evidence that a proposed project might have a significant environmental impact; in such a case, the agency has not proceeded as required by law. [Citation.] Stated another way, the question is one of law, i.e., ‘the sufficiency of the evidence to support a fair argument.’ [Citation.] Under this standard, deference to the agency’s determination is not appropriate and its decision not to require an EIR can be

2023Applicable Legal Standards “A court reviewing an agency’s decision not to prepare an EIR in the first instance must set aside the decision if the administrative record contains substantial evidence that a proposed project might have a significant environmental impact; in such a case, the agency has not proceeded as required by law. [Citation.] Stated another way, the question is one of law, i.e., ‘the sufficiency of the evidence to support a fair argument.’ [Citation.] Under this standard, deference to the agency’s determination is not appropriate and its decision not to require an EIR can be

2015(Muzzy, supra, 41 Cal.4th at p. 380 .) An agency is precluded “from relying on a categorical exemption when there is a fair argument that a project will have a significant effect on the environment . . . .” (Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 266 (Banker’s Hill); see also Voices for Rural Living v. El Dorado Irrigation Dist. (2012) 209 Cal.App.4th 1096, 1105 [applying “fair argument” standard in a Class 3 exemption analysis].) Thus, the agency evaluates potential environmental effects under the fair argument standar

2015(Muzzy, supra, 41 Cal.4th at p. 380 .) An agency is precluded “from relying on a categorical exemption when there is a fair argument that a project will have a significant effect on the environment . . . .” (Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 266 (Banker’s Hill); see also Voices for Rural Living v. El Dorado Irrigation Dist. (2012) 209 Cal.App.4th 1096, 1105 [applying “fair argument” standard in a Class 3 exemption analysis].) Thus, the agency evaluates potential environmental effects under the fair argument standar

2024The County cites to Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359 (Gentry), in support of their argument that the fair argument standard applies to review of a Guidelines section 15183 exemption determination because the “exemption requires a finding that a project will not have significant effect on the environment . . . .” However, the authority from Gentry the County relies upon is a footnote stating the court has previously “suggested that where a statutory exemption does depend on whether the project will have significant environmental effects (as does section 21083.3), the fair a

2024The County cites to Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359 (Gentry), in support of their argument that the fair argument standard applies to review of a Guidelines section 15183 exemption determination because the “exemption requires a finding that a project will not have significant effect on the environment . . . .” However, the authority from Gentry the County relies upon is a footnote stating the court has previously “suggested that where a statutory exemption does depend on whether the project will have significant environmental effects (as does section 21083.3), the fair a

2018No. 2 v. County of Kern (2005) 127 Cal.App.4th 1544 , 1597, 27 Cal.Rptr.3d 28 ["Were we to accept County's broad-brush assertion of the incredibility of plaintiffs' evidence, the fair argument test would be effectively eviscerated because much of the evidence submitted in [CEQA proceedings] comes from people and entities who are interested in the outcome of the lead agency's decision"].) Similarly, in Pocket Protectors we rejected a project proponent's claim that a city council found the credibility of public comment wanting, pointing out that the relevant findings "do not discuss any opposing

2018No. 2 v. County of Kern (2005) 127 Cal.App.4th 1544 , 1597, 27 Cal.Rptr.3d 28 ["Were we to accept County's broad-brush assertion of the incredibility of plaintiffs' evidence, the fair argument test would be effectively eviscerated because much of the evidence submitted in [CEQA proceedings] comes from people and entities who are interested in the outcome of the lead agency's decision"].) Similarly, in Pocket Protectors we rejected a project proponent's claim that a city council found the credibility of public comment wanting, pointing out that the relevant findings "do not discuss any opposing

2021(Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123 .) “The issue of whether an [environmental impact report] must be prepared is resolved by applying the fair argument test.” (Inyo Citizens for Better Planning v. Inyo County Bd. of Supervisors (2009) 180 Cal.App.4th 1, 7 .) “Under this test, the agency must prepare an [environmental impact report] whenever substantial evidence in the record supports a fair argument that a proposed project may have a significant effect on the environment.” (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359,

2016Resources Code, §21151, subd. (a).) 11 *1246 CEQA requires an agency to prepare an EIR “whenever substantial evidence[ 12 ] supports a fair argument that a proposed project ‘may have a significant effect on the environment.’ ” (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1123 [ 26 Cal.Rptr.2d 231 , 864 P.2d 502 ] (Laurel Heights II).) If there is substantial evidence of such an effect, “contrary evidence is not adequate to support a decision to dispense with an EIR.” (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1316 [ 8 Cal.Rptr

2018Stated another way, if the [reviewing] court perceives substantial evidence that the project might have such an impact, but the agency failed to secure preparation of the required EIR, the agency's action is to be set aside because the agency abused its discretion by failing to proceed "in a manner required by law." ' " ( Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 , 1112, 184 Cal.Rptr.3d 643 , 343 P.3d 834 , citation omitted.) The fair argument standard thus creates a low threshold for requiring an EIR, reflecting the legislative preference for resolving doubts i

2018Stated another way, if the [reviewing] court perceives substantial evidence that the project might have such an impact, but the agency failed to secure preparation of the required EIR, the agency's action is to be set aside because the agency abused its discretion by failing to proceed "in a manner required by law." ' " ( Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 , 1112, 184 Cal.Rptr.3d 643 , 343 P.3d 834 , citation omitted.) The fair argument standard thus creates a low threshold for requiring an EIR, reflecting the legislative preference for resolving doubts i

2020In Georgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App.5th 358 , 371–372 (Georgetown), the appellate court drew a contrast between reviewing a negative declaration for CEQA compliance, where a court would apply the fair argument standard, and reviewing an agency’s planning or zoning decisions, where a more deferential substantial evidence standard applies: “In contrast, planning or zoning determinations are reviewed with greater deference, both because the public entity is deemed best able to interpret its own rules and because it is presumed to bring local knowledge and e

2020(Georgetown, supra, 30 Cal.App.5th at pp. 370–374; Pocket Protectors, supra, 124 Cal.App.4th at pp. 929–935.) SORT’s argument is a misguided attempt to turn these holdings on their heads, by arguing that whenever an agency checks for consistency with land use plans as part of its CEQA initial study checklist, then the fair argument standard applies to the agency’s land use decision as well.

2018The aesthetic difference between a four-story and a three-story building on a commercial lot on a major thoroughfare in a developed urban area is not a significant environmental impact, even under the fair argument standard." ( Id. at p. 592, 18 Cal.Rptr.3d 814 .) "[A]esthetic issues like the one raised here are ordinarily the province of local design review, not CEQA." ( Id. at p. 593, 18 Cal.Rptr.3d 814 .) However, Bowman added an important caveat: "[T]here may be situations where ... an aesthetic impact like the one alleged here arises in a 'particularly sensitive' context ( [CEQA] Guidelin

2018The aesthetic difference between a four-story and a three-story building on a commercial lot on a major thoroughfare in a developed urban area is not a significant environmental impact, even under the fair argument standard." ( Id. at p. 592, 18 Cal.Rptr.3d 814 .) "[A]esthetic issues like the one raised here are ordinarily the province of local design review, not CEQA." ( Id. at p. 593, 18 Cal.Rptr.3d 814 .) However, Bowman added an important caveat: "[T]here may be situations where ... an aesthetic impact like the one alleged here arises in a 'particularly sensitive' context ( [CEQA] Guidelin

2020Stated another way, if the [reviewing] court perceives substantial evidence that the project might have such an impact, but the agency failed to secure preparation of the required EIR, the agency’s action is to be set aside because the agency abused its discretion by failing to proceed “in a manner required by law.”’ [Citation.]” (Berkeley Hillside, supra, 60 Cal.4th at p. 1112 , quoting Friends of B Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1002 .) “The fair argument standard is a ‘low threshold’ test for requiring the preparation of an EIR. [Citations.] It is a question of law, no

2015(Laurel Heights II, supra, 6 Cal.4th at p. 1135.) The scope of review of an agency’s application of the fair argument standard is described in Friends of “B” Street v. City of Hayward, supra, 106 Cal.App.3d at p. 1002 (Friends of “B” Street), a decision that Guidelines section 15064, subdivision (f)(1), cites.

2016(League, at p. 908.) In Monterey, supra, 122 Cal.App.4th 1095 , this court, citing League and without any substantive analysis, stated, “[i]n this case, the fair argument standard applies to all three substantive issues—historicity, impact, and *470 mitigation—since they all bear on the question of whether an EIR is required.” (Monterey, at p. 1109.) The parties in Monterey did not dispute that the fair argument standard applied to the “historicity” issue in that case, and consequently this court did not consider whether the statutory scheme and the legislative history required application of

2016(South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604, 1612 ; Architectural Heritage Assn v. County of Monterey (2004) 122 Cal.App.4th 1095, 1109 (Architectural Heritage Assn.).) The fair argument standard has been synthesized as follows: “The fair argument standard of review is not the typical substantial evidence standard, i.e., whether there is substantial evidence to support the decision not to prepare an [environmental impact report].

2025However, appellate courts faced with the cumulative impact exception have addressed this issue by adopting Berkeley Hillside’s bifurcated standard of review. ( Aptos, supra, 20 Cal.App.5th 1039, 1048 [concluding that “a similar standard of judicial review applies to all three [general] exceptions”]; Arcadia, supra, 88 Cal.App.5th at p. 439 [applying Berkeley Hillside to a cumulative impact inquiry].) Appellants argue that we should do the same here, and Respondents argue that we should apply the fair argument standard.

2025However, appellate courts faced with the cumulative impact exception have addressed this issue by adopting Berkeley Hillside’s bifurcated standard of review. ( Aptos, supra, 20 Cal.App.5th 1039, 1048 [concluding that “a similar standard of judicial review applies to all three [general] exceptions”]; Arcadia, supra, 88 Cal.App.5th at p. 439 [applying Berkeley Hillside to a cumulative impact inquiry].) Appellants argue that we should do the same here, and Respondents argue that we should apply the fair argument standard.

2018"The fair argument standard is a 'low threshold' *382 test for requiring the preparation of an EIR," ' " and there is " ' " a preference for resolving doubts in favor of environmental review ." ' " (Quoting Citizens for Responsible & Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323 , 1331-1332, 73 Cal.Rptr.3d 202 .) Noting that most Heron Bay residents would not be able to see the proposed turbine, however, and that " 'obstruction of a few private views in a project's immediate vicinity [was] not generally regarded as a significant environmental impact[,] [citation],' " the

2018"The fair argument standard is a 'low threshold' *382 test for requiring the preparation of an EIR," ' " and there is " ' " a preference for resolving doubts in favor of environmental review ." ' " (Quoting Citizens for Responsible & Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323 , 1331-1332, 73 Cal.Rptr.3d 202 .) Noting that most Heron Bay residents would not be able to see the proposed turbine, however, and that " 'obstruction of a few private views in a project's immediate vicinity [was] not generally regarded as a significant environmental impact[,] [citation],' " the

2025(Guidelines, § 15362.) It discusses ways to mitigate or avoid those effects, along with alternatives to the project. (§ 21061; Guidelines, § 15362.) An EIR is the 6 “ ‘heart of CEQA.’ ” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392 (Laurel Heights Improvement Assn.).) Courts have described the fair argument standard as imposing “a low threshold for the preparation of an EIR, reflecting a preference to resolve doubts in favor of full-blown environmental review.” (Sierra Club, supra, 150 Cal.App.4th at p. 381 ; see Save Agoura Cornell Knoll v.

2022(Id. at p. 1153.) The appellate court in Georgetown similarly concluded that “lay opinions can provide substantial evidence to support a fair argument that a project may have a significant aesthetic impact on the environment, triggering the need to prepare an environmental impact report (EIR) pursuant to [CEQA].” (Georgetown, supra, 30 Cal.App.5th at p. 363 .) The fair argument standard applied in Protect Niles, supra, 25 Cal.App.5th 1129 and Georgetown, supra, 30 Cal.App.5th 358 is not applicable in the present case, where an EIR has been prepared for the hotel project.

2024No Substantial Evidence Supports a Fair Argument That the Project’s GHG Emissions May Be Cumulatively Considerable Having concluded that substantial evidence supports the City’s use of the 3,000 threshold for assessing the significance of the project’s GHG emissions, we recognize that a significance threshold “is not conclusive . . . and does not relieve a public agency of the duty to consider the evidence under the fair argument standard. [Citations.] A public agency cannot apply a threshold of significance or regulatory standard ‘in a way that forecloses the consideration of any other substa

2024No Substantial Evidence Supports a Fair Argument That the Project’s GHG Emissions May Be Cumulatively Considerable Having concluded that substantial evidence supports the City’s use of the 3,000 threshold for assessing the significance of the project’s GHG emissions, we recognize that a significance threshold “is not conclusive . . . and does not relieve a public agency of the duty to consider the evidence under the fair argument standard. [Citations.] A public agency cannot apply a threshold of significance or regulatory standard ‘in a way that forecloses the consideration of any other substa

2018"The fair argument standard Guidelines section 15064, subdivision (f)(1), sets forth applies by its terms to determinations of a lead agency , not of a court." ( Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 , 1112, 184 Cal.Rptr.3d 643 , 343 P.3d 834 .) Rather, a city's "decision to issue a negative declaration ... is reviewed for 'prejudicial abuse of discretion,' which 'is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence'." ( Save the Plastic Bag Coalition v. City o

2018"The fair argument standard Guidelines section 15064, subdivision (f)(1), sets forth applies by its terms to determinations of a lead agency , not of a court." ( Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 , 1112, 184 Cal.Rptr.3d 643 , 343 P.3d 834 .) Rather, a city's "decision to issue a negative declaration ... is reviewed for 'prejudicial abuse of discretion,' which 'is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence'." ( Save the Plastic Bag Coalition v. City o

2022If there was substantial evidence that the proposed project might have a significant environmental impact, evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR . . . because it could be “fairly argued” that 9 the project might have a significant environmental impact.’” (Friends I, 1 Cal.5th at p. 957 , italics added.) “The fair argument standard creates a ‘low threshold’ for requiring an EIR, reflecting a legislative preference for resolving doubts in favor of environmental review.” (Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4t

2022Where “a project was originally approved by an EIR, we affirm the agency’s determination whether a subsequent or supplemental EIR is required when the determination is supported by substantial evidence, even if there is other evidence to the contrary.” (Friends II, supra, 11 Cal.App.5th at p. 607 ; see also Committee for Re–Evaluation of T–Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1247 , 1251- 1252; Latinos Unidos de Napa, supra, 221 Cal.App.4th at p. 200 .) Accordingly, the fair argument standard of review is inapplicable.

2020(Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512 ; Covina Residents for Responsible Development v. City of Covina, (2018) 21 Cal.App.5th 712, 724 .) An agency’s decision to rely on a negative declaration or a mitigated negative declaration under CEQA “‘is reviewed for abuse of discretion under the “fair argument” standard.’” (Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877, 886 ; see also Wollmer v. City of Berkeley (2009) 179 Cal.App.4th 933, 939 .) In describing the scope of judicial review of an agency’s application of the fair argument standard, the Supreme Court has state

2020(Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512 ; Covina Residents for Responsible Development v. City of Covina, (2018) 21 Cal.App.5th 712, 724 .) An agency’s decision to rely on a negative declaration or a mitigated negative declaration under CEQA “‘is reviewed for abuse of discretion under the “fair argument” standard.’” (Jensen v. City of Santa Rosa (2018) 23 Cal.App.5th 877, 886 ; see also Wollmer v. City of Berkeley (2009) 179 Cal.App.4th 933, 939 .) In describing the scope of judicial review of an agency’s application of the fair argument standard, the Supreme Court has state

2018(See § 21082.2, subd. (b); Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065 , 1080-1081, 230 Cal.Rptr. 413 .) They portray this case as raising no more than a public controversy and challenge the adequacy of the Society's "unsubstantiated lay opinions." *375 We have little difficulty finding the fair argument standard was met in this case.

2018(See § 21082.2, subd. (b); Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065 , 1080-1081, 230 Cal.Rptr. 413 .) They portray this case as raising no more than a public controversy and challenge the adequacy of the Society's "unsubstantiated lay opinions." *375 We have little difficulty finding the fair argument standard was met in this case.

2026Koi Nation’s opening brief implicitly recognized as much, stating, “Once the existence of TCR is established, the fair argument standard applies to whether the Project may have a significant effect on them” (italics added), and quoting by analogy a decision holding that “once [a] resource has been determined to be a historical resource, then the fair argument standard applies.” (Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039, 1072 .

2026(Valley Advocates v. City of Fresno, supra, 160 Cal.App.4th at pp. 1068–1072 [fair argument standard did not apply to threshold question whether resource qualifies as historical resource, which is reviewed for substantial evidence]; accord, Friends of Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457 , 466–469; Citizens for the Restoration of L Street v. City of Fresno (2014) 229 Cal.App.4th 340, 369 .) In its reply brief (which is less than clear), Koi Nation never squarely concedes that the fair argument standard applies only to the question of whether an MND’s mitigation meas

2026(Sierra Club v. California Dept. of Forestry & Fire Protection (2007) 150 Cal.App.4th 370, 381 .) An agency applying the fair argument standard to assess the adequacy of mitigation measures may not weigh evidence: “If there [is] substantial evidence that the proposed project might have a significant environmental impact, evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR.” (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1112 .) And courts review de novo whether an agency correctly applied the fair argument standar

2025(Guidelines, § 15362.) It discusses ways to mitigate or avoid those effects, along with alternatives to the project. (§ 21061; Guidelines, § 15362.) An EIR is the 6 “ ‘heart of CEQA.’ ” (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392 (Laurel Heights Improvement Assn.).) Courts have described the fair argument standard as imposing “a low threshold for the preparation of an EIR, reflecting a preference to resolve doubts in favor of full-blown environmental review.” (Sierra Club, supra, 150 Cal.App.4th at p. 381 ; see Save Agoura Cornell Knoll v.

2026(Valley Advocates v. City of Fresno, supra, 160 Cal.App.4th at pp. 1068–1072 [fair argument standard did not apply to threshold question whether resource qualifies as historical resource, which is reviewed for substantial evidence]; accord, Friends of Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457 , 466–469; Citizens for the Restoration of L Street v. City of Fresno (2014) 229 Cal.App.4th 340, 369 .) In its reply brief (which is less than clear), Koi Nation never squarely concedes that the fair argument standard applies only to the question of whether an MND’s mitigation meas

2024(Friends of Willow Glen Trestle v. City of San Jose (2016) 2 Cal.App.5th 457, 473 .) If a resource is determined to be a historical resource, “the fair argument standard applies to the question whether the proposed project ‘may cause a substantial adverse change in the significance of an historical resource’ [citation] . . . .” (Valley Advocates v. City of Fresno (2008) 160 Cal.App.4th 1039, 1072 ; see Berkeley Hillside, supra, 60 Cal.4th at p. 1117 [citing Valley Advocates to support a bifurcated standard of review for the unusual circumstances exception].) The fair argument standard “present

2018(See Claremont , supra , 37 Cal.App.4th at p. 1168 , 44 Cal.Rptr.2d 288 .) 6 *433 III Application of the Fair Argument Standard Appellants properly point out that the mere existence of a public controversy does not satisfy the fair argument standard.

2018(See Claremont , supra , 37 Cal.App.4th at p. 1168 , 44 Cal.Rptr.2d 288 .) 6 *433 III Application of the Fair Argument Standard Appellants properly point out that the mere existence of a public controversy does not satisfy the fair argument standard.