BAXTER, J. I respectfully dissent. The California Endangered Species Act (CESA; Fish & G. Code, § 2050 et seq.) states the exact procedures and criteria by which the California Fish and Game Commission (Commission) is to decide whether individual plant or animal varieties shall appear, or continue to appear, on California’s “threatened” and “endangered” species lists. A species must be listed if “sufficient scientific information” persuades the Commission that the species’ continued existence is endangered or threatened. Once listed, a species must be removed from the list (delisted), if the Commission determines, from similar “scientific information,” that the species faces no imminent or likely threat or danger. The decision requires a detailed study and report by an expert agency, public notice, hearing, and comment, and full and formal findings by the Commission. But the process, while careful and public, is narrowly focused; the determination to list or delist must be based solely upon the ecological health of the species under consideration.
After protracted proceedings under CESA, the Commission found that the Mojave ground squirrel does not meet CESA’s standards of threat or endangerment. The Commission explained that the squirrel was originally listed as [138]“rare,” with little evidentiary support, under a predecessor statute, and thus automatically appeared on CESA’s “endangered” list without further evaluation of its true status. Moreover, the Commission noted, while reliable estimates of the squirrel’s population remain unavailable (and probably impossible), this species ranges throughout a desert habitat of almost 5 million acres, which is largely under public control and faces no significant development. Nor, the Commission concluded, was there evidence of the squirrel’s decimation by disease, predation, exploitation, competition, or other natural occurrences or human activity. Accordingly, the Commission determined to delist the squirrel. On administrative mandamus, the superior court upheld the Commission’s decision.
However, the majority, like the Court of Appeal, are not content with the workings of CESA’s logical, complete, self-contained, and environmentally specific scheme. Instead, they conclude that the Commission’s action to delist the Mojave ground squirrel under CESA is invalid because the Commission did not also follow the separate and distinct criteria and procedures of the California Environmental Quality Act (CEQA; Pub. Resources Code, §21000 et seq.), including CEQA’s requirement that an environmental impact report (EIR) or its functional equivalent be prepared and considered.
But by its express terms and design, CEQA forces an agency to address and accommodate broad competing values—environmental, social, and economic—that contradict the narrow focus CESA requires the Commission to take when deciding whether to list or delist a threatened or endangered species. Where the issues considered under both statutes are the same, separate compliance with CEQA is a meaningless and wasteful duplication of CESA’s own extensive provisions for full scrutiny and informed public participation. Thus, as two recent federal decisions concluded in the context of analogous federal laws, CEQA has no sensible place in such a proceeding.
For these reasons, I cannot join the majority’s strained effort to fit a square peg into a round hole. I conclude that CEQA’s EIR and procedural requirements cannot be reconciled with the particular statutes the Commission must apply when listing or “delisting” a threatened or endangered species. In my view, the Commission thus violated no law when it delisted the Mojave ground squirrel but failed to follow CEQA’s procedures in addition to CESA’s. I would reverse the decision of the Court of Appeal.
I.
The focused purposes of CESA are made clear by its codified findings and policy declarations. These express concern about species of fish, wildlife, [139]and plants that are “in danger of, or threatened with, extinction” because of overexploitation, destruction of habitat, disease, predation, and other factors. (Fish & G. Code, § 2051, subd. (b).) CESA thus makes it the state’s policy to “conserve, protect, restore, and enhance” all “endangered” or “threatened” species and their habitats. (Id., § 2052.)
Once a species is identified as endangered or threatened, it is entitled to a number of statutory protections. For example, with limited exceptions, CESA forbids the import, export, taking, possession, purchase, or sale of endangered or threatened species. (Fish & G. Code, § 2080.) State agencies should not approve projects which jeopardize endangered or threatened species unless specific economic, social, or other conditions make other alternatives infeasible. (Id., §§ 2053, 2054, 2092, subd. (a).) Agencies should use their authority to conserve endangered and threatened species. (Id., §2055.)
However, the initial determination whether a species qualifies for these protections by virtue of its threatened or endangered status is more narrowly circumscribed. Under CESA, the Commission must maintain a list of threatened and endangered species (Fish & G. Code, § 2070), which are defined by the statute. A species of fish, plant, or wildlife is “endangered” if it is “in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, or disease.” (Id., § 2062.) A species is “threatened” if it is “likely to become an endangered species in the foreseeable future in the absence of the special protection and management efforts required by this chapter.” (Id., § 2067.) The Commission “shall add or remove a species from either [the “endangered” or “threatened” species] list if it finds, upon the receipt of sufficient scientific information pursuant to this article, that the action is warranted.” (Id., § 2070, italics added.) The Commission is to adopt “criteria for determining if a species is endangered or threatened.” (Id., § 2071.5.)
Pursuant to section 2071.5 of the Fish and Game Code, the Commission has promulgated guidelines which further address the standards by which a determination to list or delist should be made. These guidelines closely track the statutory definitions of “endangered” and “threatened” species. Under the guidelines, a species “shall be listed as endangered or threatened ... if the Commission determines that its continued existence is in serious danger or is threatened by any one or any combination of the following factors: [¶ 1. Present or threatened modification or destruction of its habitat; [¶ 2. Overexploitation; [¶ 3. Predation; [¶ 4. Competition; [¶ 5. Disease; or [¶ 6. Other natural occurrences or human-related activities.” (Cal. Code Regs., [140]tit. 14, § 670.1, subd. (i)(1)(A).) “A species may be delisted ... if the Commission determines that its continued existence is no longer threatened by any one or any combination of the factors provided in subsection (i)(1)(A) . . . .” (Id., subd. (i)(1)(B).)1
CESA also provides detailed procedures for the Commission’s decision to list or delist a species. Listing or delisting may be triggered by the petition of an “interested person,” or by a recommendation from the Department of Fish and Game (Department) itself. (Fish & G. Code, §§ 2072.3, 2072.7.) After a noticed hearing, the Commission may reject, without further consideration, any petition or recommendation which does not include sufficient “scientific information” that the action recommended is “warranted.” (Id., §§ 2074, 2074.2 (subd. (a)(1).) If the Commission “accepts” the petition or recommendation for further consideration (id., § 2074.2, subd. (a)(2)), the Department must review the status of the subject species, and must provide an expert written report to the Commission. (Id., § 2074.6.) This report, which shall be “based upon the best scientific information available to the department,” must “indicate^ whether the petitioned action is warranted,” must include “a preliminary identification of the habitat that may be essential to the continued existence of the species,” and must “recommend[] management activities and other recommendations for the recovery of the species.” (Ibid.) The Department’s report is supplemented by the public solicitation of “data and comments . . . from as many persons as is practicable.” (Id., § 2074.4; see Cal. Code Regs., tit. 14, § 670.1, subd. (h).)
At a further noticed hearing, and after receipt of written and oral comment, the Commission must then make a “finding[]” whether the action of listing or delisting is warranted. (Fish & G. Code, §§ 2075, 2075.5.) Before this “finding^” can be implemented as a formal rule, the Commission must also comply with the rulemaking provisions of the Administrative Procedure Act. (APA; Gov. Code, § 11340 et seq.) These call for public notice, comment, and hearing, as well as a written statement of reasons with response to public recommendations and objections, as specified by the APA. (Fish & G. Code, § 2075.5, subd. (2); see Gov. Code, §§ 11346.2, subd. (b), 11346.4, subd. (a), 11346.8, subd. (a), 11346.9, subd. (a).)
Thus, in a CESA list/delist proceeding, the Commission is to determine only whether a species meets the statutory and regulatory standards of threat [141]or endangerment.2 The criteria, documents, and procedures by which CESA requires the Commission to make this decision are expressly detailed in CESA, and are tailored to ensure that the Commission’s narrow discretion will be carefully and publicly exercised.
On the other hand, CEQA, the state’s primary environmental legislation, is concerned with all the environmental effects of a “project” contemplated by a public agency, i.e., any unexempted agency activity that may have a significant adverse environmental effect. (Pub. Resources Code, §§ 21000, 21001, 21065.) CEQA requires agencies, by formal findings, to avoid or mitigate the adverse environmental effects of such activities and decisions to the extent made feasible by economic, social, or other conditions. (Id., §§21002, 21002.1, subd. (b), 21081.)
Unless an exemption applies, an agency must issue a “negative declaration,” or must prepare and consider an EIR, before undertaking any “project.” (Pub. Resources Code, § 21080, subds. (c), (d).) The EIR requirement is intended to induce environmentally sensitive agency decisions by “identify [ing] the significant effects on the environment of a project, . . . identifying] alternatives to the project, and . . . indicating] the manner in which those significant effects can be mitigated or avoided.” (Id., § 21002.1, subd. (a).)
An EIR, where required, must detail “all” the significant environmental effects of the “project,” specifically including its impact on inducing development of land and human population growth, must disclose “any” significant unavoidable effect of the project on the environment, and must list alternatives or mitigation measures to reduce or eliminate these effects. (Pub. Resources Code, §§ 21100, 21100.1.) A “project” may be not be approved if less damaging alternatives or mitigation measures are available, except where “specific economic, social, or other conditions make infeasible such . . . alternatives or . . . mitigation measures.” (Id., § 21002.)
Similar standards apply to a “project” which, though subject to CEQA in general, is exempted by CEQA itself from the EIR requirement under the auspices of a “certified” environmental “regulatory program.” To be eligible for “certifi[cation],” such a “regulatory program” must, among other things, provide for full environmental consideration under CEQA’s standards, pursuant to documentation and procedures which are the functional equivalent [142]of the EIR process. Under the current statutory provisions, the program must “require[] a plan or other written documentation containing environmental information” (Pub. Resources Code, § 21080.5, subd. (a)); must prohibit approval or adoption of an activity if feasible alternatives or mitigation measures “would substantially lessen any significant adverse [environmental] effect” (id., subd. (d)(2)(A), italics added); must provide for public notice, review, and comment (id., subd. (d)(2)(F)); and must mandate the agency’s written response to all significant environmental points raised during the evaluation process (id., subd. (d)(2)(D)). Written documentation required by the program must describe the activity, as well as alternatives and mitigation measures “to minimize any significant adverse effect” (id., subd. (d)(3)(A), italics added), and must be available for public review and comment (id., subd. (d)(3)(B)).
CESA and CEQA thus establish two independent schemes adapted to two distinct goals. CESA is tailored to provide careful public determination of a narrow issue, i.e., whether apart from any other concern, an individual plant or animal species is in fact “threatened” or “endangered” as a matter of “scientific information.” By contrast, CEQA provides a process to ensure that environmental considerations (including, of course, the “endangered” or “threatened” status of any species) will influence the making and implementation of broader public policy, in which other issues and interests are also properly at play. Aside from a mutual concern with public scrutiny and participation, for which each statute amply provides in its own fashion, the processes of one scheme have little logical relation, in purpose or design, with those of the other. In fact, the Commission cannot follow all the directives of CEQA’s EIR provisions, while at the same time adhering to its narrow fact-finding discretion under CESA.
Statutes should be reconciled and harmonized where reasonably possible (e.g., Hartford Fire Ins. Co. v. Macri (1992) 4 Cal.4th 318, 326 [14 Cal.Rptr.2d 813, 842 P.2d 112]), but courts must avoid statutory constructions that lead to illogical or absurd results (e.g., Landrum v. Superior Court (1981) 30 Cal.3d 1, 9 [177 Cal.Rptr. 325, 634 P.2d 352]). Here, despite the majority’s laborious attempts to demonstrate otherwise, the two statutory schemes at issue are mutually incompatible. CESA, the statute with specific application to the “endangered” and “threatened” species lists, must therefore govern to the exclusion of CEQA’s inconsistent provisions.
II.
Two United States Courts of Appeals have reached the identical conclusion under the analogous provisions of federal law. Though the majority [143]attempt to distinguish these decisions, the reasoning of the federal cases is pertinent and persuasive.
In Pacific Legal Foundation v. Andrus (6th Cir. 1981) 657 F.2d 829 (Pacific Legal Foundation), the Sixth Circuit Court of Appeals held that when determining whether to list a species as endangered for purposes of the federal Endangered Species Act (ESA; 16 U.S.C.A. § 1531 et seq.), the Fish and Wildlife Service need not comply with the separate provisions of the National Environmental Policy Act (NEPA; 42 U.S.C.A. § 4321 et seq.), including NEPA’s requirement for the preparation and consideration of an environmental impact statement (EIS). The Court of Appeals acknowledged that NEPA governs all environmentally significant federal actions “ ‘to the fullest extent possible.’ ” (Pacific Legal Foundation, supra, 657 F.2d at p. 833; see 42 U.S.C.A. § 4332.) The court further conceded that an ESA listing decision, as such, neither enjoys an express exemption from NEPA, nor is impliedly exempt under a theory of “functional equivalence.” (Pacific Legal Foundation, supra, at pp. 834-835.) Nonetheless, the court concluded that the two schemes were in conflict, such that simultaneous compliance with both was precluded.
Pacific Legal Foundation reasoned primarily that ESA contemplates a mandatory species-focused determination, in which other matters may not be considered, while NEPA “supplements the existing goals of agencies and provides that [they] should also consider environmental concerns. [Citations.]” (Pacific Legal Foundation, supra, 657 F.2d at p. 835.) Because “the statutory mandate of ESA prevents the Secretary [of the Interior] from considering the [broader] environmental impact when listing a species as endangered or threatened,” the issues a valid EIS must identify and discuss cannot be addressed or accommodated. (Pacific Legal Foundation, supra, at p. 836, italics added.) The filing of an EIS in a listing proceeding therefore serves the purposes of neither ESA nor NEPA. (Pacific Legal Foundation, supra, at pp. 835-836.)
The Court of Appeals specifically rejected the argument, similar to that embraced by the majority here, that an EIS should nonetheless be required in order to serve the public informational goals of NEPA. As the court explained, “this purpose [of informing the public] does not exist independent of the primary purpose to insure an informed decision by the agency contemplating federal action .... [T]he [EIS] provides the basis for critical evaluation of the agency action by those not associated with the agency. [Citation.] If the agency cannot consider the environmental impact, an [EIS] is useless ... in evaluating [the agency’s] action.” (Pacific Legal Foundation, supra, 657 F.2d at p. 838, italics in original.)
[144]More recently, another federal appeals court concluded that even when ESA requires consideration of issues beyond the needs of the threatened or endangered species itself, ESA’s procedures have “displaced” those of NEPA in this particular area. In Douglas County v. Babbitt (9th Cir. 1995) 48 F.3d 1495 (Douglas County), the Court of Appeals addressed the application of NEPA to the designation, under ESA, of an endangered species’ “critical habitat.”
As the court explained, whenever a species is listed as endangered or threatened under ESA, the Secretary of the Interior must also designate its “critical habitat,” within which locale federal actions likely to disrupt the species are forbidden. (Douglas County, supra, 48 F.3d at p. 1497; see 16 U.S.C.A. §§ 1532(5)(A), 1536(a)(2).) Unlike the listing decision itself, the designation of “critical habitat” must consider, in addition to the “best scientific data available[,] ... the economic impact, and any other relevant impact, of specifying any particular area as critical habitat.” (Douglas County, supra, at p. 1497; see 16 U.S.C.A. § 1533(b)(2).) The “critical habitat” designation must be preceded by notice to the public, the affected states, and the scientific community, and by a public hearing if one is requested. (Douglas County, supra, at p. 1503; see 16 U.S.C.A. § 1533(b)(5).)
Despite ESA’s mandate to consider all “relevant impact[s]” of a “critical habitat” designation, the Douglas County court held that NEPA’s EIS requirement is inapplicable in this context. The court reasoned, inter alia, that in a statutory scheme adopted and amended after NEPA, Congress made no mention of NEPA, instead providing careful and comprehensive, but clearly disparate, statutory procedures by which the designation of critical habitat was to occur. Thus, the court concluded, by rendering the provisions of NEPA “superfluous” in this regard, Congress had made an implicit choice that the specific procedures set forth in ESA for the “critical habitat” determination should displace those of NEPA. (Douglas County, supra, 48 F.3d at pp. 1502-1503.)
The federal courts’ reasoning is compelling for purposes of the analogous California statutes. Here, as in the federal scheme, the decision to list or delist a threatened or endangered species is governed by specific and comprehensive legislation that was adopted after the statute addressing environmental decisionmaking in general. California’s endangered species statute, like its federal counterpart, makes no mention of other environmental laws, but instead mandates particular agency action after the exercise of a narrow, scientific, and species-focused fact-finding discretion. In California, as under federal law, the nature of the decision required is incompatible with the [145]broader interest-balancing function of environmental statutes like CEQA and NEPA. And CEQA, like NEPA, has no pure “informational” function where the “information” at issue could have no actual effect on the agency’s decision.
Moreover, in our state, as under the federal analogs, the specific statutory procedures for a list/delist action are detailed, distinct, and tailored to the particular scope of the agency’s discretion. Hence, it is sensible to infer that our Legislature, like Congress, has “displaced” more general procedures which might otherwise apply, and has rendered them “superfluous.”
The majority, however, reject the federal courts’ analyses for purposes of California law. Their reasons for doing so are unpersuasive.
First, the majority suggest that even under the controlling federal law, Pacific Legal Foundation, supra, 657 F.2d 829, “presents] [no] strong case of statutory irreconcilability warranting an exemption from environmental review.” (Maj. opn. ante, at p. 120.) According to the majority, Pacific Legal Foundation rests on a “questionable” interpretation of the federal irreconcilability standard set forth in Flint Ridge Dev. Co. v. Scenic Rivers Assn. (1976) 426 U.S. 776 [96 S.Ct. 2430, 49 L.Ed.2d 205]. In Flint Ridge, the United States Supreme Court concluded that because NEPA “was not intended to repeal by implication any other statute,” a federal agency is exempt from NEPA’s EIS requirement where compliance would create a “clear and unavoidable conflict in statutory authority.” (Flint Ridge, supra, 426 U.S. at p. 788 [96 S.Ct. at p. 2438].)
As the majority note, Flint Ridge considered whether the Secretary of Housing and Urban Development must prepare an EIS pursuant to NEPA before allowing a “statement of record” filed under the Interstate Land Sales Full Disclosure Act (Act) to go into effect. Under the Act, the Secretary had no discretion to disapprove a statement except for facial inaccuracy, and the statement automatically became effective unless the Secretary notified the filing developer within 30 days that the statement was deficient. Finding it “inconceivable” that NEPA’s EIS process could be completed within the mandatory 30-day period provided by the Act, the high court held that NEPA must give way. (Flint Ridge Dev. Co. v. Scenic River Assn., supra, 426 U.S. at pp. 788-791 [96 S.Ct. at pp. 2438-2440].)
In Pacific Legal Foundation, the court acknowledged that the “time constraint” at issue in Flint Ridge was not present (Pacific Legal Foundation, supra, 657 F.2d at p. 835), but it nonetheless found a similar degree of incompatibility between two statutory schemes. Contrary to the majority’s [146]contention, nothing in Pacific Legal Foundation is inconsistent with Flint Ridge. Flint Ridge applied the sensible principle that if a statute imposes specific duties on a particular agency, or limits that agency’s discretion, in a way that precludes compliance with other, generally applicable laws, the latter must defer to the former. As Pacific Legal Foundation explained at length, ESA presents such a conflict with NEPA.
An identical tension arises between CESA and CEQA. Pacific Legal Foundation'% conclusions were sound for purposes of federal law, and they are equally compelling here.
The majority suggest that significant differences between the state and federal schemes diminish the force of the federal decisions for California purposes. In particular, the majority stress that CEQA, unlike NEPA, includes no implied exception for “functional equivalence,” but exempts “functionally equivalent” environmental schemes from the EIR requirement only under the express provision for “certified regulatory programs” (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 204 [132 Cal.Rptr. 377, 553 P.2d 537] (Wildlife Alive); Pub. Resources Code, § 21080.5).
However, the federal decisions that found NEPA inapplicable to endangered species listing proceedings under ESA did not primarily rely on any federal theory of “functional equivalence” between the two schemes. Indeed, as Pacific Legal Foundation, supra, 657 F.2d 829, acknowledged, the listing or delisting of a species under ESA is not exempt from NEPA for any such reason. On the contrary, the federal cases reasoned that the goals, purposes, standards, and agency discretion contemplated by the two schemes are incompatible, such that where the more specific statute expressly applies, it displaces the more general. Similar considerations apply here.3
In sum, the majority provide no convincing reason to depart from the federal precedent when deciding the issue presented here. I would embrace those authorities, by analogy, as dispositive.
[147]III.
The majority offer other arguments for a conclusion that CEQA must apply to a list/delist decision under CESA. First, they note that the Legislature has provided express exemptions from CEQA where it deemed such treatment appropriate. (Citing Pub. Resources Code, §§ 21080, subd. (b) [miscellaneous exemptions for “functional equivalence” and for certain projects meeting strong environmental, commercial, or transportation needs], 21084, subd. (a) [“categorical exemptions” for projects having no significant adverse environmental effect]; Health & Saf. Code, § 44561, subd. (a) [financing and construction of pollution and waste management control facilities]; Wat. Code, § 13389 [adoption by regional water quality control boards of local standards for waste discharge into sources of drinking water].) But the Legislature’s determination that some government activities are exempt for policy reasons which outweigh the application of CEQA has little bearing on the issue here—whether two particular statutory schemes exhibit such conflicting designs, functions, purposes, and procedures that they cannot reasonably be applied at the same time.
The majority also assert that California courts have “consistently” rejected claims of statutory incompatibility with CEQA. (Citing, e.g., Wildlife Alive, supra, 18 Cal.3d 190, 198-201 [setting of hunting seasons pursuant to Fish and Game Code]; Bozung v. Local Agency Formation Com. (1975) 13 Cal.3d 263, 282-286 [118 Cal.Rptr. 249, 529 P.2d 1017] [approval by local agency formation commission of municipal annexation pursuant to Knox-Nisbet Act]; Environmental Protection Information Center v. Johnson (1985) 170 Cal.App.3d 604, 620 [216 Cal.Rptr. 502] [approval of timber harvesting plan under Forest Practices Act]; City of Coronado v. California Coastal Zone Conservation Commission (1977) 69 Cal.App.3d 570, 581 [138 Cal.Rptr. 241] [coastal commission permit issuance procedures]; also cf. Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1231 [32 Cal.Rptr.2d 19, 876 P.2d 505] [application of CEQA’s non-EIR provisions to Forest Practices Act].) In none of the cited examples, however, was an agency expressly constrained, contrary to CEQA, to focus on one severable aspect of environmental policy, then provided with detailed procedures, different from CEQA’s, but tailored to ensure that this narrowly focused environmental decision would be made in an informed, careful, sensitive, and public way.
CEQA, like NEPA, must be interpreted “to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259 [104 Cal.Rptr. 761, 502 P.2d 1049], italics added.) However, no inference arises that CEQA may ride roughshod over the clearly contrary [148]provisions of another statutory scheme, simply because neither statute has expressly recognized the conflict.
IV.
The majority concede, if reluctantly, that CESA does not permit a list/ delist decision to be influenced by environmental impacts beyond the ecological status of the subject species itself. However, the majority urge, this limitation does not preclude a harmonized application of CEQA to a CESA proceeding.
First, the majority point to a particular section of CEQA, Public Resources Code section 21004, as an indication that CEQA was intended to apply, in adapted form, even where agency discretion is limited by other statutes. Section 21004 provides that, in mitigating or avoiding a significant effect of a project on the environment, a public agency may exercise its “discretionary powers,” express or implied, as provided by “other law,” but “only” such powers. (Italics added.)4
This statute provides no support for the majority’s views. By its plain terms, although Public Resources Code section 21004 allows agencies to ameliorate environmental effects through use of their existing “discretionary powers,” the statute does not enlarge the limited and narrowly focused “discretion” the Commission may exercise in a list/delist proceeding under CESA.
When it adopted Public Resources Code section 21004 in 1982, the Legislature explained at length the statute’s purpose and effect. Section 21004 was designed to address pending litigation which asserted that CEQA independently empowered all agencies to “impose fees and other exactions” to achieve environmental ends. (Stats. 1982, ch. 1438, § 4, subd. (b), p. 5485.) On the contrary, the Legislature declared, while agencies may use their existing powers—such as the powers to levy fees, impose exactions, or condemn property, if present—with CEQA’s environmental goals in mind, agencies acquire no new or different enforcement powers solely by virtue of CEQA. (Id., subd. (a), p. 5484.)
This amendment to CEQA, designed to clarify that statute’s limitations in a particular context, cannot be construed to extend the reach of CEQA’s EIR [149]provisions by superimposing them over the express and conflicting provisions of other environmental laws. If Public Resources Code section 21004 has any implications for the issue presented by this case, they are contrary to the one seized upon by the majority.5
Finally, the majority falter when they attempt to explain how CEQA’s EIR’s procedures (or the “functionally equivalent” process set forth in the Commission’s “certified regulatory program”) can be adapted to a list/delist proceeding, and why such an adaptation serves the purposes of both statutes. In these strained and tortured efforts, the fallacy of the majority’s position becomes apparent.
First, the majority suggest, adherence to CEQA forces the Commission to consider environmentally sensitive “alternatives” to the proposed “project.” But as the majority appear to concede, in CESA proceedings to remove a species from the threatened or endangered list, the Commission has only two “alternatives.” These choices are to delist if “scientific information” persuades the Commission that the species is not endangered or threatened, and to refrain from delisting if the evidence is otherwise.
These limited “alternatives,” and the pertinent evidence bearing on each, are necessarily set forth in the documentation and public commentary required by CESA itself. Moreover, as previously indicated, CESA provides its own careful and detailed procedures for ensuring the Commission’s reasoned choice between the only two available “alternatives.” The Commission must make a “finding[]” whether the requested action to delist is “warranted.” That “finding!]” is subject to judicial review of the Commission’s reasoning, and cannot be formally implemented in any event until the rulemaking processes of the APA have been completed. Here, the Commission explained in detail its reasons for concluding that the Mojave ground [150]squirrel was not endangered or threatened within the meaning of CESA, and must therefore be delisted. Accordingly, the majority make no convincing case that CEQA must be superimposed on CESA in order to ensure the Commission properly considers available “alternatives.”
Next, the majority insist that an EIR or equivalent document will identify measures to “mitigate” the “project’s” adverse environmental effects. But as the majority acknowledge, the consideration of “mitigation measures” to avoid any adverse effect of delisting on the subject species is simply inappropriate. Because a species may not be delisted if it is threatened or endangered, the decision to delist is a determination that no such threat or danger exists. Accordingly, there is no place or need for the “mitigation” of “adverse” environmental impacts to which a species might be exposed by a decision to delist it.6
Thus left to grasp at straws, the majority proffer a more convoluted theory for the relevance of CEQA’s “mitigation” requirements. The majority suggest that even if a decision whether to delist must focus solely on the ecological status of the listed species itself, the Commission may take steps otherwise within its authority to mitigate any adverse effects of its decision on other flora and fauna that share the subject species’ habitat. Consideration of an EIR or equivalent document during the delisting process, the majority reason, will ensure identification of any such incidental species impacts, and of feasible measures to mitigate or avoid them. For example, the majority suggest, if an EIR prepared for proceedings to delist one species discloses that the delisting may adversely affect another species, the Commission might consider such remedial actions as “ordering the Department to place [the incidentally] affected species on its list of birds and mammals of special concern for further study and observation.” (Maj. opn., ante, at p. 135.)
The majority thus imply the need for two simultaneous and parallel proceedings. One proceeding, under CESA, must determine narrowly whether a listed species should be delisted on the basis of its own ecological status. Another equally elaborate proceeding, under CEQA, must identify and mitigate any and all adverse “incidental” effects of the delist decision on [151]plants and animals whose status is not under formal consideration.7 Thus, in the majority’s view, the CEQA “tail” wags the CESA “dog.”
The short answer is that in a proceeding to list or delist a particular species, CESA mandates a focus on the status of that species alone. The statute does not contemplate that a proceeding to consider whether one species is threatened or endangered shall become a forum for debate about the status of others. By the same token, CEQA seeks to ensure that an agency will decide on the basis of full environmental information whether to authorize or implement the “project” itself. Under CESA, as the majority admit, the Commission’s decision whether to delist one species cannot be based on the possible incidental impacts on other species. Hence, in this respect as well, the majority has provided no justification for “grafting” an EIR requirement onto a CESA list/delist proceeding.8
The majority find one other reason, relevant to this case, why the Commission should be subject to CEQA’s procedures as well as CESA’s when deciding whether to remove a species from the endangered or threatened list. The majority suggest that the Commission violated its own “certified regulatory program,” and thus erred under CEQA, when it made a “finding[]” to delist the Mojave ground squirrel (Fish & G. Code, § 2075.5) without simultaneously providing a public response to each “significant environmental objection!]” raised by the public comments and testimony. (See Pub. Resources Code, § 21080.5, subd. (d)(2)(D); Cal. Code Regs., tit. 14, § 781.5, subd. (h).) That CESA and the APA require such responses, in writing, before the Commission’s “finding!]” can be implemented as a formal rule is insufficient, in the majority’s view, because it does not serve CEQA’s purpose of demonstrating that the relevant environmental issues were fully considered in advance of the agency’s actual “final decision.”
Again, the majority’s value judgments are contrary to the Legislature’s own policy and procedural choices when it adopted CESA. In the first place, [152]CESA does not permit the Commission to consider, much less “respon[d]” to, environmental considerations beyond the threatened or endangered status of the individual species under consideration. On the other hand, CESA provides in detail for public participation adapted to the limited nature of the Commission’s discretion. These procedures include public notice, hearing, and comment, a formal “finding!]” of “warranted” action, and an equally public APA rulemaking process in which the Commission must make a complete response to pertinent comments and objections. (See discussion, ante, pp. 140-141.) The majority present no convincing reason why this considered process must, or even may, give way to conflicting provisions of CEQA.
V.
In sum, I am persuaded that CESA and CEQA represent distinct and exclusive statutory schemes, tailored to different purposes and goals, and incapable of reconciliation. Accordingly, I conclude that the Commission acted properly insofar as it adhered to CESA’s procedures in its decision to delist the Mojave ground squirrel, without additional efforts to comply with the conflicting provisions of CEQA. I would therefore reverse the judgment of the Court of Appeal.
Chin, J., concurred.
Contrary to the majority’s implication, the word “may” in this latter sentence simply confirms that the Commission is not required to maintain the species on the list despite a finding that no further threat or danger exists. Indeed, the governing statute (Fish & G. Code, § 2070) makes delisting mandatory when the Commission finds a listed species subject to no current threat or danger. Hence, the guideline’s wording cannot be construed as authorizing the Commission to decline to delist even if it makes such a finding.
Noting the essentially “evidentiary and fact-finding” nature of the Commission’s authority in a CESA list/delist proceeding, one recent Court of Appeal decision characterized the Commission’s action as “quasi-adjudicatory.” (Natural Resources Defense Council v. Fish & Game Com. (1994) 28 Cal.App.4th 1104, 1116, 1120 [33 Cal.Rptr.2d 904].)
The majority suggest the relevance of Pacific Legal Foundation, supra, 657 F.2d 829, is reduced by that decision’s substantial reliance on the premise that the listing of a species as endangered or threatened under ESA necessarily promotes environmental goals regardless of compliance with NEPA. Such reasoning, the majority conclude, has no force in a delisting proceeding, where the result may be to withdraw environmental protections to which the species was formerly entitled. Whatever the merits of this argument in the abstract, it distorts the analysis of Pacific Legal Foundation. That case did suggest, as a “makeweight,” that NEPA need not apply because a decision to list a species as endangered or threatened can only benefit the environment in any event. (See Pacific Legal Foundation, supra, 657 F.2d at p. 837.) However, the principal thrust of the decision, equally applicable here, is that the standards and procedures governing agency action under the two statutory schemes are in irreconcilable conflict.
Public Resources Code section 21004 provides: “In mitigating or avoiding a significant effect of a project on the environment, a public agency may exercise only those express or implied powers provided by law other than this division. However, a public agency may use discretionary powers provided by such other law for the purpose of mitigating or avoiding a significant effect on the environment subject to the express or implied constraints or limitations that may be provided by law.”
The majority suggest at length that the Commission’s decision, under CESA, to delist the Mojave ground squirrel was exempt from CEQA’s EIR requirement only to the extent expressly excused by strict compliance with the alternative procedures set forth in the Commission’s “certified regulatory program.” (See Pub. Resources Code, § 21080.5; Cal. Code Regs., tit. 14, § 781.5.) But the Secretary of the Resources Agency only “certified” the “regulatory program” administered by the Commission in 1976, thus exempting the 1976 “program" from the EIR requirement of CEQA. This 1976 “certifi[cation]” raises no inference that the Commission’s proceedings under CESA are part of the “certified regulatory program,” or are otherwise subject to CEQA. The “program” the Secretary “certified” did not include the subsequently adopted CESA, with its distinct procedural provisions. Indeed, because the procedures set forth in the Commission’s “certified regulatory program” were intended as the “functional equivalent” of the preparation and consideration of an EIR under CEQA, they are as much at odds with the detailed procedural requirements of CESA as is CEQA itself. (See text discussion, ante, pp. 141-142.) Hence, the Commission’s “certified regulatory program” cannot be viewed as evidence of harmony between CESA and CEQA.
Apparently desperate to demonstrate how an EIR under CEQA would promote and complement the narrow goals of a delisting proceeding under CESA, counsel for appellant suggested at oral argument that an EIR would have forced the Department to conduct the reliable count of the Mojave ground squirrel’s population which is missing from the current record. But the expert species status report required from the Department under CESA itself should contain such a count where the information is pertinent and available; an EIR adds nothing in this respect. Here, the record makes clear that a reliable count of the Mojave ground squirrel population is lacking for reasons of practicality and availability which have nothing to do with the absence of an EIR under CEQA.
By the majority’s topsy-turvy logic, these incidentally affected species would apparently be entitled to more sensitive consideration than the candidate for delisting itself. The majority concede that because delisting means the subject species itself is not endangered or threatened, an EIR would not have to identify measures to “mitigate” the adverse environmental effect of delisting on that species. On the other hand, according to the majority, the EIR would have to disclose “mitigation” measures for other flora and fauna whose threatened or endangered status is not even at issue. This cannot be the law.
Of course, the Department and the Commission should always identify and respond to any environmental concern for which they are responsible by law. It does not follow, however, that a proceeding to delist one species under CESA is invalid under CEQA unless it included an EIR alerting the Commission to the potential effect on other species, even though such information could have no legal effect upon the Commission’s specific decision whether to delist.