To: Chairman Theodore Novelli
CC: Supervisor Richard Forster, Supervisor Brian Oneto, the Public
February 24, 2014
Re: Recommendation for Land Use Committee to consider and bring to the Board of Supervisors
Dear Chairman Novelli,
On February 6th, Amador Superior Court ordered Amador County and the Board of Supervisors to revoke and rescind the certification of the Environmental Impact Report for the Newman Ridge and Edwin Center North Quarry and Asphalt Plant, to reverse the industrial rezoning and to redo and recirculate sections of the Environmental Impact Report to comply with California Environmental Quality Act (CEQA) law, if the Project was to try for approval again.
As you know, this has been a costly process. Now, with the reversal of a prejudicial EIR – which denied the Public the ability to clearly understand and comment/object to the Quarry and Asphalt Plant - there is an opportunity for the County to also fix a policy that is not serving the interests of the County or the
taxpaying Public. Amador
Up until recently,
selected the Consultant of its choice to conduct a study and write an
Environmental Impact Report for any Project requiring one. That ensured that
the County could select the best-qualified, independent Consultant whose
primary loyalty was to the Public – as represented by the County – not the
Developer project applicant. Amador County
In the case of the at least three recent Projects for Developer William “Bill” Bunce (working within a number of Limited Liability Companies such as Newman Minerals, LLC, Greenock Ranch Lands, LLC and Edwin Lands, LLC, among many others, with Farallon Capital Management as major investors), the long-standing Amador County policy was changed without explanation or even Public discussion or disclosure. This Developer has been allowed the unprecedented liberty of selecting the EIR Consultant for his own projects.
Permitting any Developer to pick, employ and pay their own Consulting team – which could skew the study toward the Developer - represents a serious conflict of interest and questionable ethics practice by the County. Only the most principled Consultant would dare produce a document unfavorable to the Developer, since doing so would ensure the Developer would never hire them again.
Specifically, this Developer both selected and hired CEQA Consultants for 1) the Ione Hare Scramble Motocross course and 2) the Newman Ridge Quarry and Edwin Center Asphalt Plant and 3) the Irish Hill expansion. In each case, the Consultant has produced a document that minimized or altogether omitted significant environmental impacts. The result has been tremendous community discord, Public opposition and strife surrounding each of these Projects, and now, a legal decision unfavorable to the County.
An EIR Consultant selected by the same Developers whose projects they are supposed to objectively analyze can lack the appropriate distance and objectivity necessary to deliver an unbiased study, since they owe their employment and possible future employment to the very same Developer that selected and hired them.
The resulting Public turmoil and expensive litigation in Amador County that have followed these projects speak for themselves, and highlight the problem with the current County policy and begs the question: Why has this Developer received special attention?
Here is a quote from a case on this same subject:
In our view, the lead agency's obligation not to commit to the project in advance, but instead to carry out an environmental review process and create environmental documents that reveal the project's impacts without fear or favor, and only then make up its mind about project approval, means the agency cannot have an interest, prior to project approval, in producing a legally defensible EIR or other environmental document that supports the applicant's proposal. At the same time, of course, the applicant's primary interest in the environmental review process is in having the agency produce a favorable EIR that will pass legal muster. These interests are fundamentally at odds.
The conflict between the agency's interests and the applicant's is far from being only theoretical. For many issues of the first degree of importance—whether an impact is significant or a mitigation measure is feasible, for instance—there may be substantial evidence on both sides. Either conclusion might survive judicial review. It is on issues like these that the preparers of environmental documents must make their most crucial decisions. On these issues, the interests of the agency and applicant are opposed, even though they share an interest in producing a document that will be legally sufficient. The agency's duty is to present the conclusion best supported by the facts, while the applicant's interest is to present the conclusion most favorable to its proposal. These often will be opposite conclusions, although either would be legally sufficient.
(Citizens for Ceres v. Superior Court 217 Cal.App.4th 889, 918, 159 Cal.Rptr.3d 789, 808 (Cal.App. 5 Dist.2013)
As the Chairman of the Amador County Board of Supervisors and Land Use Committee, we seek for you to right this wrong and reverse this change, back to a more objective policy that serves the Public interest, not the Developer’s interests.
The County, and the County alone, should select Environmental Consultants, to ensure maximum objectivity, guarding against bias or influence from the Developer, for any Project needing CEQA analysis. We ask for this Policy to be changed immediately.
Sondra West-Moore for
Ione Valley Land,
Air & Water Defense Alliance,