e-Bulletin: Court Rules that Reasonably Foreseeable Herbicide Use Must be Analyzed as Part of Timber Harvesting Plan

The California Court of Appeal for the Fifth Appellate District recently held that CEQA required herbicide use to be analyzed as a part of a proposed Timber Harvesting Plan (THP) project because the project applicant's potential herbicide use was a reasonably foreseeable activity of the THP project. The court further determined that the California Department of Forestry (CDF) prejudicially abused its discretion in two ways: 1) it inaccurately described the State’s pesticide regulatory program, and 2) it based its decision on information not disclosed in the administrative record.

Two environmental organizations sued CDF after it approved three THPs in the Sierra Nevada for lumber production by Sierra Pacific Industries (SPI), a timber owner and operator. THPs are subject to a regulatory exemption under CEQA, but their environmental analysis must be functionally equivalent to an EIR. Although possible use of herbicides was generally discussed in the THP, SPI did not include the details of that use. CDF reviewed some data related to SPI’s prior pesticide use and concluded that it could not evaluate SPI's future chemical use since the type and amount of potential herbicide use was unknown. CDF further determined that state and federal laws, particularly the Department of Pesticide Regulation's regulations governing the use of pesticides, provided adequate protection to ensure that there would be no significant environmental impacts associated with the future pesticide use. The plaintiffs challenged CDF's findings, arguing that CEQA required CDF to analyze the environmental impacts of SPI’s herbicide use.

On appeal, the court faulted CDF on two aspects of its environmental review. First, the court invalidated CDF's finding that the Department of Pesticide Regulation's regulatory program provided adequate environmental protection and excused lead agencies from further environmental review of potential pesticide use. The court held that CEQA does not allow lead agencies to rely exclusively on regulatory programs established by other agencies to ensure that a project does not have significant environmental impacts.

If the potential herbicide use was reasonably foreseeable, it is an “activity” that constitutes part of the project. Consequently, the THP must include a general description of potential herbicide use and analysis of its implications. Even though some uncertainty about future herbicide use exists, the THP must address its possible environmental impacts. If the specific activities cannot be reasonably foreseen at the time the THP is prepared, a detailed analysis is not necessary, but the activity must be analyzed to the extent possible.

In this case, the court did not determine whether specific details of herbicide use were reasonably foreseeable, thereby requiring a more detailed analysis. The court found that it could not make this determination because the administrative record did not include information that revealed SPI's typical pattern or history of herbicide use, nor did it include data created by pest control advisers that SPI had used in the past.

Second, the court found that CDF erred because it considered past herbicide use and data created by SPI pest control advisors, but this information was not in the administrative record. The lack of information in the record, such as SPI’s potential herbicide use, proved CDF did not disclose all it reasonably could about its future herbicide use. Based on these two fatal flaws, the court ordered CDF to rescind its approval of the THPs.