At issue is the county's practice of allowing project applicants and developers to review draft EIRs before letting the public see the report.

Brian Schmidt, legislative advocate for the Committee for Green Foothills, wrote a letter to the county Dec. 23 asking for a change in policy. He argued that although the California Public Records Act allows agencies to withhold some preliminary drafts from the public, the county waived that exemption by releasing draft EIRs to developers.

"Disclosure of these documents is not accidental, inadvertent, or even negligent, but rather an intentional, deliberate act as part of a disclosure policy for environmental planning that has been stated repeatedly by county staff," Schmidt wrote.

While Schmidt's group is currently concerned with a EIR from a project at Stanford University, the Committee for Green Foothills may soon turn its attention regarding this issue to the city of San Jose and projects such as the proposed McKean Road Sports Complex EIR.

The Committee for Green Foothills became aware of the county's policy when Schmidt attempted to review the draft EIR for a trails project at Stanford University. He found that the county had shared preliminary drafts with Stanford officials—allowing them to review and argue for changes—but refused to release those drafts to the public.

The county finally released the records last month after the Committee for Green Foothills filed a formal CPRA request.

"Not only was this practice illegal because it excluded citizen review and biased decision-making in favor of development, it made for bad planning," Schmidt said. "Developers have no special right to influence the government's analysis, and allowing just one side to argue its case sets the stage for an incomplete analysis."

Two weeks ago the county board of supervisors decided that Schmidt might have a point.

Deputy county counsel Lizanne Reynolds said that staff is considering two options: Not releasing any drafts to anyone until the EIR is in "good shape," or releasing drafts to everyone simultaneously.

"I can understand how people can feel that the public is being left out," Reynolds said. "But it's a 'too many cooks' [in the kitchen] type of thing. Administrative draft EIRs are rough drafts, often with many, many problems. There have been cases where we've had eight or nine administrative drafts."

Since the applicants often know more about the project, she added, the county does discuss any shortcomings and the feasibility of proposed mitigation measures with the developers.

Schmidt said he didn't find the 'too many cooks' argument compelling. "Most people are going to have that level of high interest in an EIR. It doesn't create any problems for the county; it's not like adding another review. People can send letters, but the county doesn't have to respond."

Reynolds said that under the California Environmental Quality Act, a project applicant is considered to be in a unique position that the rest of the public is not in regards to record disclosures.

"But without going to court—I've given up predicting what the court will do," she said.

Supervisor Don Gage spoke in favor of the current policy at the Feb. 8 meeting, and the board of supervisors could decide to not make any changes.

San Jose releases drafts

The city of San Jose still releases administrative drafts to project applicants, which gives developers time to work hand-in-hand with city staff to address any shortcomings. Even in controversial cases—such as the proposed McKean Road Sports Complex in the South Almaden Valley Urban Reserve—the Almaden Youth Association and the consultant hired to put the report together, RBF, were looking at the report's findings at least two months before it was released to the public on Aug. 13.

Schmidt said that the Committee for Green Foothills may pursue a similar policy change in San Jose. Representatives from the San Jose city attorney's office didn't respond to requests for comment.

The Committee for Green Foothills and the South Almaden Valley Rural Alliance teamed up to file a lawsuit against the city of San Jose, the AYA, and the San Jose Unified School District over the McKean Road Sports Complex EIR's alleged shortcomings and failure to follow CEQA law.

Each party in the lawsuit is expected to meet within the next two weeks to attempt to settle the case. This is standard procedure in CEQA/EIR lawsuits. If there is no settlement, the case will go before a judge.

Schmidt said that it's much easier to affect an agency's environmental analysis of a project before the EIR is circulated. "If they admit to making serious mistakes after it's out, then they have to revise and recirculate the EIR. It's also more difficult to challenge a released EIR in court. Courts tend to shift the burden of proof from the agency to the plaintiffs, and if there's doubt, they're more likely to rule in favor of the agency."