An appellate court decision earlier this month sided with environmental groups who have long said Fresno’s review process doesn’t adequately address construction impacts on neighborhoods.

Now, the city has issued at least one memo to builders using the city’s Program Environmental Impact Report to stop and do their own review.

The decision could delay “dozens” of industrial, commercial, and residential projects, according to a City Hall source who requested anonymity.

The decision also puts the cost of doing environmental reviews on builders, potentially costing tens of thousands or hundreds of thousands of dollars.

California’s Fifth Appellate District delivered its opinion on Aug. 6, saying the city’s report did not account for realistic, up-to-date levels of air pollution, groundwater, and pedestrian traffic. The court also said that the city didn’t provide needed alternatives to mitigate those impacts.

Fresno City Attorney Andrew Janz said he could not comment on pending litigation.

“The City failed to properly describe the environmental setting, failed to substantiate its (greenhouse gas) analysis vis-a-vis state targets, improperly deferred air quality mitigation measures, unjustifiably found traffic mitigation infeasible, failed to analyze potential impacts on pedestrians, inadequately addressed groundwater decline, and failed to reasonably discuss project alternatives,” the court opinion stated.

Related Story: Industry vs. Pollution: What’s the Right Balance in South Fresno?

City Has Said Development Benefits Outweigh Environmental Harms

Community groups South Fresno Community Alliance and Leadership Counsel for Justice and Accountability sued Fresno in 2021 for what they alleged was an insufficient Program EIR.

Representatives from both groups have actively opposed industrial development in south Fresno especially. The court ruling echoed many of the concerns vocalized by the group’s representatives at city council meetings and in legal letters.

Multiple attempts by GV Wire to reach representatives of the two groups for comment were unsuccessful.

A PEIR is a blanket environmental study builders can use when constructing new projects. The California Environmental Quality Act identifies more than 20 factors to consider, including air pollution, sound, traffic, and water.

CEQA has been used by nonprofits, unions, competing developers, and governments to stop projects.

So that developers don’t have to do independent studies for every aspect of the CEQA process, they can reference a city’s PEIR. Fresno did a master EIR in 2014, then amended it in 2019 to adapt to state law, getting Fresno City Council approval in 2021.

But Leadership Counsel and the Alliance said in the lawsuit that the document was “vague” and “nonbinding.”

Despite agreeing with environmental groups that issues with air quality, water, and transportation were significant, the city council in 2021 concluded that the benefits of development could outweigh the harms.

“(The city) concluded ‘economic and social considerations outweighed the remaining environmental effects of approval and implementation of the project,’ ” the appellate opinion stated.

Related Story: Leading Fresno Environmental Justice Attorney Joins State AG’s Office

Decision Will Impact Non-Industrial Companies the Most: Attorney

GV Wire acquired one of the memos sent to companies following the ruling against the city’s PEIR. The memo tells the applicant they will have to take on the environmental review on their own. Any sort of reference to the city’s environmental document “is no longer available.”

Using the PEIR allows companies to bypass environmental analysis requirements that the city has already done, according to John Kinsey, attorney with Wanger Jones Helsley, who represents many industrial companies.

Not having the city’s document available means one of two things for companies, Kinsey said. It could mean builders who did not previously need a CEQA document will have to pay to have one done.

For builders who already have a project underway, it could mean going back several steps in the approval process and needing to pay for their own analysis.

“The exact amount of funding under either scenario will vary based on the scope of the project and the environmental review, but the additional costs could range from the low tens of thousands of dollars to several hundreds of thousands of dollars if an EIR needs to be prepared from the ground up,” Kinsey said.

Both the Alliance and Leadership Counsel have been opposed to industrial development in south Fresno, saying the pollution and traffic is hurting nearby neighborhoods. But Kinsey said industrial development is already stymied by regulations, so the decision would hurt residential and commercials the most. “Tiering” is the official term of using the PEIR.

“The decision in SFCA vs. City of Fresno will likely have the greatest impact on the timing and cost of non-industrial projects, such as infill, residential, and commercial projects, as those are the types of projects most likely to receive the benefits of tiering under CEQA,” Kinsey said.

Courts Give City a 6-Point To-Do List

Doing a Program EIR is no easy task. Large swaths of land have to looked at and a score of environmental factors have to be considered with only limited knowledge of what kind of construction goes where.

When completed, agencies doing EIRs have to present their findings to the public. Every comment and concern submitted by the public has to be addressed.

The court was specific in what it wants the city to do. The court identified six specific violations that need to be addressed in the city’s PEIR for air quality, vehicle-miles traveled — the metric used to curb urban sprawl — and groundwater levels.

The city may be able to get approval by showing the court it has a plan to fix these shortcomings.