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Wednesday, January 6th, 2016

On January 4, 2016, the Third Appellate District published its opinion in North Coast Rivers Alliance v. Kawamura, 2015 Cal. App. LEXIS 1178. In the opinion, the court found a programmatic EIR for a program to deal with the invasive light brown apple moth to be inadequate.  Because of the EIR’s “artificially narrow” project objective to eradicate the pest, its alternatives analysis did not consider a control program and focused solely on eradication methods. For more information on this case, our previous blog post is available at:


Monday, January 4th, 2016

In an unpublished opinion, Save Westwood Village v. Regents of the University of California, 2015 Cal. App. Unpub. LEXIS 9281, the Second Appellate District affirmed the trial court’s rulings and rejected several CEQA challenges to the UC Regents’ approval of the Meyer and Renee Luskin Conference and Guest Center on the UCLA campus. As noted by the appellate court, the petitioner’s opening brief could have been rejected due to its failure to provide an adequate statement of facts, its limited and inaccurate citations to the record for most of its factual assertions, and its legal analyses, which was supported by only four citations to legal authority. Despite these inadequacies, the court considered each of petitioner’s four legal argument in turn, finding each to be unpersuasive.

Specifically, the court found that the Regents did not improperly pre-commit to the proposed project when they accepted a $40 million gift from the Luskins. The court found that the Regents’ acceptance of the gift did not preclude the Regents from considering any alternatives or mitigation measures because the gift was conditioned only on the Regents using the donors’ names for the proposed conference center, providing annual reports on the status of the conference center, and using the gift for charitable purposes. Nor did the court find pre-commitment from the Regents’ approval of the project budget prior to the certification of the Final EIR because the Regents approved the project design on the same day they certified the Final EIR and the approval followed lengthy, interactive planning and review process.

The court quickly rejected petitioner’s remaining claims: (1) that there were differing project descriptions regarding the amount of square footage between the EIR and the document authorizing the expenditure of funds; (2) that the project was a legally infeasible alternative because the guest center would be used for “non-academic purposes” 25% of the time; and (3) that the EIR did not consider the impact of lost parking spaces. The court found the record did not support any of these additional claims.

The lawsuit was filed in October 2012; the unfounded and barely articulated challenges entangled the project in CEQA litigation for more than three years.


Wednesday, December 9th, 2015

In an unpublished opinion, North Coast Rivers Alliance v. Kawamura, 2015 Cal. App. Unpub. LEXIS 8760, the Third Appellate District reversed the trial court’s rulings and found a programmatic EIR certified by California Department of Food and Agriculture (CDFA) for a seven-year program to deal with the invasive light brown apple moth (LBAM) to be inadequate. LBAMs, which are native to Australia, can negatively affect a variety of plants and trees because the moths roll up leaves to make nests and their larvae feed on the leaves and buds.

While the focus of the EIR was to eradicate the LBAM, just prior to certifying the EIR in March 2010, CDFA approved a program to control the moths instead based on new information that eradication was no longer attainable. CDFA contended that the change reduced the scope of the program. The appellants argued that the change expanded the scope of the program because pest control would have to continue indefinitely, whereas eradication would have taken place within the seven-year period studied in the EIR.

The court did not discuss in detail the appellants’ argument that the last-minute change from eradication to control violated CEQA due to a lack of accurate project description and improper “segmenting.” The court held that the EIR violated CEQA even without the last-minute change, and the last-minute change did not save CDFA from reversal because there was no assurance that a CEQA-compliant EIR would be prepared for control efforts taking place beyond the seven-year period studied in this EIR. While CDFA stipulated that environmental review would take place, the Court noted that this did not guarantee that an EIR would be prepared.

The court held that the EIR violated CEQA by failing to analyze a control program as a reasonable alternative to an eradication program. Instead, the alternatives focused on different methods that could be used in various combinations to eradicate the LBAMs. The court found this improper given the program’s objective was to protect California’s native plants and agricultural crops from damage, not merely to eradicate LBAMs. The court found this to prejudicial as it “infected the entire EIR” by causing CDFA to reject anything that would not achieve complete eradication of the LBAMs. Accordingly, the court held that the EIR was fatally defective.

Next, the court rejected the appellants’ claims that two assumptions made by CDFA were not supported by substantial evidence; specifically, that doing nothing would cause: (1) a dramatic increase in private pesticide; and (2) crop damage and reduced agricultural revenues. The court disagreed, finding that these assumptions were supported by substantial evidence. The court also rejected the appellants’ claims that the EIR failed to adequately analyze the project impacts.

Finally, the court found it unnecessary to address the appellants’ contention that the EIR’s cumulative impacts analysis violated CEQA, citing Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 101-102 for the proposition that section 21005 of the California Public Resources Code does not require the court to address additional alleged defects that may be addressed in a completely different and more comprehensive manner upon further CEQA review following remand. In this case, a new cumulative impacts discussion will be prepared when CDFA undertakes further environmental review to analyze the control program as an alternative.

Meanwhile, despite efforts to quarantine the LBAMs during the environmental review process, they have continued to spread throughout California, increasing from 10,000 to more than 71,000 in two years.



Monday, November 16th, 2015

In an unpublished opinion, City of Jurupa Valley v. City of Riverside, 2015 Cal. App. Unpub. LEXIS 7978 the Second Appellate District affirmed the trial court’s decision to deny the City of Jarupa Valley’s mandamus petition.  The project involved the creation of a transmission line, two substations, and several subtransmission lines to deliver power throughout Riverside.  Riverside had prepared and adopted an Environmental Impact Report (EIR) for the project. On appeal, the issues were whether Riverside violated CEQA by (1) failing to recirculate the Final EIR despite adding new information, (2) not fairly and in good faith analyzing Project alternatives, and (3) pre-committing to the Project.

First, the Court considered Riverside’s decision not to recirculating the Final EIR for public comment after minor alterations to transmission line routes. The Court held that substantial evidence supported Riverside’s decision not the recirculate, as the changes did not result in new or substantially increased environmental impacts. Rather, these changes resulted in reduced environmental impacts because they involved moving the transmission lines behind a store rather than cutting through the parking lot to avoid aesthetic and roadway impacts and burying the lines underground near the airport to avoid air traffic safety impacts.

Second, the Court upheld Riverside’s decision to reject underground transmission lines and an alternative routing option as infeasible because the decision was based on substantial evidence. The Court held that neither option had to be extensively analyzed as a project alternative because both options failed to satisfy the project objectives at the outset. Specifically, the high cost of underground transmission lines would not meet the project’s “cost effective” goal and the proposed alternative route would have greater environmental impacts than the chosen route and therefore failed the project’s objective of “minimizing environmental impacts.”

Third, the Court found Riverside did not impermissibly “pre-commit” to the project by including obtaining CAISO approval, pre-selecting a preferred route, committing funds to the project, and signing an Interconnection Facilities Agreement  with Southern California Edison.  The Court held that none of these steps obligated Riverside to approve the project, nor did they effectively precluded any alternatives or mitigation measures that CEQA would otherwise require to be considered. The Court also noted that modifications to the project in response to public comment showed that Riverside did not pre-commit.


Tuesday, November 10th, 2015

In Crenshaw Subway Coalition v. Los Angeles County Metropolitan Transportation Authority, 2015 U.S. Dist. LEXIS 143642, the United States District Court for the Central District of California granted summary judgment on all but one claim in favor of the Los Angeles Metropolitan Transportation Authority (“Metro”) and the Federal Traffic Administration (“FTA”) against Crenshaw Subway Coalition’s (“Plaintiff”) challenges to the approval of the Crenshaw/LAX Transit Corridor Project.

The Draft EIS/EIR for the Project analyzed four alternatives—no-build, Transportation System Management (TSM), Bus Rapid Transit (BRT), and Light Rail Transit (LRT). The agencies chose LRT as the locally preferred alternative and prepared an EIS/EIR to analyze potentially significant environmental impacts of the Project.

Specifically at issue in the case was the grade separation analysis for a section of track along Crenshaw Boulevard—where the LRT would shift from running below-grade to running at-grade for approximately six blocks until transitioning to an aerial structure. Plaintiff argued that the EIS/EIR violated CEQA and NEPA by failing to evaluate a reasonable alternative to the at-grade segment of the Project, namely a tunnel.

Initially, the Court suggested that CEQA did not require an analysis of any segment specific options (such a below-grade tunnel for the Crenshaw Boulevard section) because these options are just a component of the Project and did not rise to the level of an “alternative.” Therefore, under the Court’s view, Metro had no duty to analyze “alternatives” to the at-grade design feature. Nonetheless, the Court analyzed the issue as if the below-grade option were a CEQA alternative—in part because the issue was briefed as such by both parties.

The Court first held that the EIS/EIR’s alternatives analysis did not violate CEQA because Metro had determined in the scoping process that running the entire length of Crenshaw Boulevard below-grade was economically infeasible as it would increase the cost of the Project by 27 to 35 percent. Infeasible alternatives do not need to be analyzed in an EIR, and courts can look at the administrative record for evidence of infeasibility; specific “infeasibility findings” are not required.

The Court then held that the alternatives analysis did not violate NEPA because the below-grade alternative was not reasonable or necessary. Specifically, an economically infeasible alternative would not meet the Project’s stated goal of cost effective and affordable transit improvements and a study by Metro had determined that at-grade crossings were compatible with the level of traffic on the Boulevard. Accordingly, the Court held that it was not improper for the FTA to only briefly address the below-grade segment in a response to comment. The Court also rejected an argument that FTA had “predetermined” that the segment would be at-grade, holding that a preferred alternative does not equate to an improperly predetermined outcome under NEPA.

The Court next addressed Plaintiffs’ substantive challenges to the EIS/EIR’s land use, urban decay, parking, safety impacts, and environmental justice analyses. Because these were substantive and not procedural challenges, the Court gave more deference to the agencies’ conclusions and determined that they were supported by substantial evidence. The Court also rejected Plaintiff’s claims that the mitigation measures were not described with sufficient detail and that a supplemental EIS should have been prepared under NEPA.

Notably, the Court did not grant summary judgement to either party for Petitioner’s claim that Metro engaged in unlawful racial discriminated in its site selection for the Project in violation of Government Code section 11135, though the Court seemed to imply that Metro seemed “quite likely to succeed” in the litigation. The Court held that there was simply not enough evidence on the administrative record to properly analyze the issue, and thus summary judgment was inappropriate.

Key Point:

Alternatives analysis is a key component of any environmental impact report. However, whether an alternative can be rejected during the scoping process (and thus does not need to be analyzed in an EIR or EIS) depends on whether it is feasible (CEQA) or reasonable (NEPA). This case may provide support for an argument that alternative “design features” within the project do not even rise to the level of a project alternative.

Double Dribble: Court Rejects Second CEQA Lawsuit Over the Downtown Sacramento Arena

Thursday, March 5th, 2015

In Saltonstall v. City of Sacramento, 2015 Cal. App. LEXIS 150, the California Third District Court of Appeal affirmed the trial court’s denial of a writ of mandate challenging the environmental impact report (EIR) for an arena in downtown Sacramento (arena project) and held the City of Sacramento (City) did not prematurely commit itself to the downtown arena project before completing the EIR.

The case is the second time the Third District Court of Appeal ruled on the arena project in three months. (Summary of Saltonstall I by the Thomas Law Group available here: In that case, the court held the amendments to the California Environmental Quality Act (CEQA) streamlining the review of the arena project did not violate the constitutional separation of powers.

In the instant case, the court first rejected petitioners’ argument that the City violated CEQA by committing itself to the arena before completing the proper environmental review. The court explained the City’s nonbinding term sheet with the arena project developer expressly provided that all proposed terms of the development were subject to CEQA review. Also, the exercise of eminent domain to secure a site for the arena project did not constitute a commitment to the ultimate project site requiring prior CEQA review. The court reasoned that together CEQA Guidelines section 15004, which permits entering into land acquisition agreements as long as the public agency conditions the future use of the site on CEQA compliance, and Public Resources Code section 21168.6.6, which expressly authorized the City to prosecute the eminent domain action at issue prior to completing CEQA environmental review, demonstrated the City’s eminent domain action did not improperly commit it to the arena project.

Next, the court held the EIR was not deficient for failing to include a remodel of the City’s current basketball arena as a project alternative. The City’s objectives for the arena project included the revitalization of downtown and building a state-of-the-art entertainment venue. Even if remodeling the existing arena might be environmentally superior, the court concluded a remodeled arena would not meet the City’s downtown redevelopment objectives.


The court also rejected petitioners’ other challenges to the arena project. The court held substantial evidence supported the City’s traffic analysis conclusions and the City was under no obligation to conduct further studies simply because petitioners desired a more thorough review. The court also rejected petitioners’ argument that the EIR was deficient for not including an analysis of crowd safety impacts. The court reasoned CEQA was limited to impacts to the physical environment, which did not include crowd safety. Finally, the court stated petitioners forfeited their request to introduce certain material into the administrative record by failing to offer any meaningful analysis on the issue.


The CEQA objectives for a project are critical when courts review the alternatives analysis in an EIR. Because the City established its objectives as requiring revitalization of downtown, other alternatives outside of the downtown area that may have had less of an environmental impact could properly be rejected.

Court Holds County’s Abandonment of Rights-of-Way is Not a Project Under CEQA

Wednesday, January 28th, 2015

In an unpublished decision, Delucchi v. County of Colusa, 2015 Cal. App. Unpub. LEXIS 231, the California Third District Court of Appeal denied a petition for a writ of mandate challenging Colusa County’s abandonment of purported public rights-of-way and held the abandonment did not constitute a project under the California Environmental Quality Act (CEQA).

The rights-of-way at issue provided access to petitioner’s sixty-acre, landlocked private duck hunting club. Petitioner initially entered into private easements with neighbors to cross the neighbors’ land and access the parcel. When disputes arose with the neighbors, petitioner sued the neighbors and the County, seeking to protect access to his property purportedly as public rights-of-way. Petitioner based his claim on a 1910 subdivision map, which recorded miles of public rights-of-way dedicated by the then-owner and arguably accepted by the County as providing access to the mapped area.

In response to the lawsuit, the County adopted a resolution abandoning the purported public rights-of-way and stating the abandonment was exempt from CEQA.

Petitioner first contended the abandonment was void on its face because the Count did not expressly find the public rights-of-way could not be used for non-motorized transportation. The court rejected this argument explaining the County was only required to consider the evidence presented to it and petitioner failed to satisfy his burden of presenting evidence at the administrative level that the rights-of-way could be used for non-motorized transportation.

To abandon a public right-of-way, the County must find: (1) the right-of-way is unnecessary for present and prospective public use; and (2) the abandonment is in the public interest. Petitioner contended neither element was satisfied. However, the court disagreed and found substantial evidence supported the County’s findings. The court reasoned the rights-of-way were unnecessary because they did not lead to any public land, many ran through irrigation ditches and did not connect to county-maintained roads, and landowners relied of private easements for property access. The court also held abandonment was in the public interest because it avoided litigation costs and promoted the public safety.

The court also rejected petitioner’s contention that the abandonment constituted a project under CEQA. An action is a project only if “the activity may cause a direct, or reasonably foreseeable indirect, physical change in the environment.” The court held there was no direct change because the abandonment did not involve any construction or maintenance activity and any benefit to the environment came from maintaining the status quo. Further, there was no indirect change because petitioner’s speculative claims of landowner’s future conduct did not constitute a “necessary step in a chain of events which would culminate in physical impact on the environment.”

Finally, the court stated that even if the abandonment was a project under CEQA, the common sense exception applied because there was no possibility that maintaining the status quo would have a significant effect on the environment.

Appellate Court Denies Writ Challenging EIR for Expansion of Marin County Landfill

Monday, January 5th, 2015

In an unpublished opinion in No Wetlands Landfill Expansion v. County of Marin, 2014 Cal. App. Unpub. LEXIS 8866, the California Court of Appeal for the First Appellate District denied a petition for a writ of mandate challenging the environmental impact report (EIR) for a proposed landfill expansion in Marin County. The court affirmed in part and reversed in part the trial court decision.

The decision was the court’s second opinion related to the EIR for the 420-acre Redwood Landfill near the Petaluma River. In the previous decision (summary available here: the court concluded certification of the EIR was not appealable to the Marin County Board of Supervisors and remanded to the trial court to resolve the challenges to the adequacy of the EIR.

Several environmental and community groups challenged the adequacy of the EIR. First, landfill opponents argued it was improper for Marin County Environmental Health Services (Marin EHS) to consider a nonspecific offsite project alternative. However, the court explained that most of the land in Marin County was unsuitable for an alternative landfill site.  Thus, it was reasonable under the circumstances to include a hypothetical project alternative that demonstrated why an expansion of Redwood Landfill had the least significant environmental impact.

Next, the court concluded the EIR did not improperly defer mitigation measures to address potential sea-level rise and groundwater contamination. As to sea-level rise, the mitigation measure required the landfill developers to prepare a long-term flood-protection plan that took into account the effects of climate change. The court held it was reasonable given the uncertainty of rising sea-levels to not set a specific levee height and instead to re-evaluate the plan every five years.

As to groundwater, one challenged mitigation measure required an analysis of the possibility of leachate contaminating groundwater from the early years of the landfill when operators buried waste in trenches of an unknown depth. The second measure required a plan approved by the Regional Water Quality Control Board if leachates were found. Landfill opponents contended the measures lacked objective criteria. However, the court reasoned the two mitigation measures were part of a larger leachate monitoring system that complied with California Code of Regulations. As a result, the court held the mitigation measures were adequate.

The court next upheld the EIR’s discussion of potential health impacts from air emissions. Landfill opponents contended it was improper for the EIR to jointly consider the larger PM-10 and smaller PM-2.5 particulate matter and to not consider the noncancer health risks from toxic air contaminants. However, despite other authorities requiring alternative methodologies for analysis, this approach was consistent with the CEQA guidelines prepared by the Bay Area Air Quality Management District, which were in effect at the time the EIR was prepared.

Lastly, the court held the EIR sufficiently analyzed greenhouse gas emissions. The court rejected the landfill opponents’ argument that Marin EHS was required to consider the cumulative effects on greenhouse gas emissions of landfills on a global scale and not just in Marin County. The court explained this was “entirely unrealistic” and declined to impose such a burden.

The court also upheld the use of the “LandGEM” model to predict emissions from the project. The court emphasized it was not the court’s role to substitute its judgment for the reviewing agency and found there was substantial evidence to support the use of the model. The court also held landfill opponents failed to satisfy their burden of showing the proposed onsite power facility fueled by landfill gas would not offset future greenhouse emissions.

ALL ABOARD! – High Speed Rail Moves Forward with Bay Area to Central Valley Route After Appellate Court Approval

Friday, August 29th, 2014

In Town of Atherton v. Cal. High-Speed Rail Authority, (2014) Cal. App. LEXIS 670, the Court of Appeal for the Third District upheld the final program environmental impact report (EIR) for the segment of the California High Speed Rail project linking the San Francisco Bay Area to the Central Valley.

In the EIR, the California High Speed Rail Authority (the Authority) identified the Pacheco Pass route, which would direct the train west near Fresno, as the preferred alternative route to the Bay Area.  The Authority also considered the Altamont Pass route, which would turn west closer to Stockton.  Several environmental groups and cities on the San Francisco Peninsula (the Petitioner) challenged the EIR claiming that it violated the California Environmental Quality Act (CEQA) because the EIR did not adequately analyze options for locations to elevate the track along the Peninsula, used a flawed revenue and ridership model, and contained an inadequate range of alternatives.

Despite not raising the issue of preemption with the trial court, the Authority sought to dismiss the case because the Interstate Commerce Commission Termination Act (ICCTA) preempted any CEQA remedy.  The court held that it did not even need to address the “complex, difficult, and controversial subject” of ICCTA preemption because the market participant exception to preemption applied in the case.  Under the market participant exception, because the state is acting as a market participant and building the project, rather than functioning as a regulator, the project is subject to CEQA review.  While it was unusual for the Petitioner to invoke the market participant exception to compel a state agency to comply with state law, the court found no support for the Authority’s assertion that only the public agency could use the doctrine defensively to protect actions it elected to take in the market.    

On the merits of the case, the court first held that the analysis of locations to elevate the track on the Pacheco Pass route was adequate for a program EIR.  A program EIR allows for a tiering process of review where the program EIR provides coverage of general matters, followed by site-specific project-level EIRs that provide a more thorough analysis.  In this case, the court stated that requiring project-level review of different sites for elevating the track would undermine the purpose of tiering and burden the program EIR with details that are more appropriate for a project EIR.

Next, the court held that the revenue and ridership model used in the EIR was adequate.  While experts disagreed on the best model to use, the court stated that disagreement among experts does not make an EIR inadequate and it would be improper for the court to determine the credibility of experts.  As a result, Petitioner failed to satisfy its burden of showing that the model was “clearly inadequate or unsupported” and substantial evidence supported the Authority’s model.

Finally, the court rejected Petitioner’s argument that the Authority needed to include a broader range of alternatives in the EIR.  Petitioner provided several additional alternatives through a European consulting firm, but the court stated that the Authority was not required to consider alternatives that were substantially similar to the alternatives already analyzed in the EIR.  Further, the Authority’s feasibility determination was entitled to significant deference by courts.  Each of Petitioner’s alternatives was either redundant or infeasible and as a result, the court held that the Authority considered an adequate range of alternatives in EIR.


The market participant doctrine is not just a doctrine for public entities to invoke defensively to refute preemption claims.  As in this case, it can be used by private parties to force public entities to comply with state law.

Additionally, the court reinforced that the purpose of a program EIR is to provide decision-makers with an overview of the cumulative impacts of a project and allow for consideration of broad policy alternatives and program-wide mitigation measures early in the review process.  It is inefficient and counterproductive to include more specific, project-level analysis in a program EIR when a tiered review process is being utilized.

Court Upholds Discussion of Project Objectives and Alternatives in an EIR for an Infill Project in San Diego

Tuesday, August 5th, 2014

In an unpublished decision in Save Our Heritage Organisation v. County of San Diego, (2014) Cal. App. Unpub. LEXIS 5121, the Court of Appeal for the Fourth District reversed the trial court and ordered the trial court to deny a writ of mandate challenging the adequacy of the environmental impact report (EIR) for a mixed-use development in downtown San Diego (project).

The project site contains a parking lot, warehouse, and an office building built in 1911 that the City of San Diego had previously designated as an historical structure.  The first phase of the project included demolition of the warehouse and office building and construction of a parking structure.  In the next phase, San Diego County (the County) would partner with a private developer to build a five-story office and retail building and a 19-story residential building on the remaining portions of the parcel.

While acknowledging the significant unmitigable environmental impacts of the project, the County adopted a statement of overriding considerations and approved the proposed development.  The County balanced four objectives of the project in the EIR, which included maximizing revenue, providing parking, establishing a public-private partnership, and obtaining a LEED certification.

The court first reversed the trial court’s ruling that maximizing revenue was an improper objective under the California Environmental Quality Act (CEQA).  Save Our Heritage Organisation (SOHO) contended that maximizing revenue was too narrow of an objective because it would preclude meaningful analysis of project alternatives.  However, neither CEQA nor the CEQA Guidelines impose limits on the project objectives in an EIR and courts do not have the authority to impose a limitation such as prohibiting a certain project objective in an EIR.  Additionally, maximizing revenue was one of four objectives and not the only factor the County considered.  As a result, the court held that considering maximizing revenue as a project objective did not by itself constitute an abuse of discretion by the County.

Next, the court held that the EIR contained an adequate range of alternatives and that the evidence was sufficient to support the County’s finding that the alternatives were infeasible.  Citing Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, the court stated that the County’s selection of alternatives would be upheld unless they were “manifestly unreasonable.”  In this case, the County considered a no project alternative, an alternative that left the historic structure intact with buildings around it, and an alternative that incorporated the historic structure into one of the buildings.  Emphasizing that under CEQA courts should be highly deferential to an agency’s decision, the court found these alternatives were not manifestly unreasonable.

In looking at whether substantial evidence supported the County’s decision, the court stated that the feasibility of the project alternatives must be evaluated in the context of the project.  An expert analysis of the anticipated revenue from the project expected over 79 million dollars from the proposed project compared to 27 million and 29.6 million for the alternatives.  Based on this evidence, the court held that SOHO had failed to meet its burden of proving there was not substantial evidence to support the County’s decision.

Finally, the court reversed the trial court’s ruling that the County’s responses to three public comment letters were inadequate.  The three public comment letters at issue included modifications of the project alternatives. However, as the court pointed out, CEQA does not require an analysis of every possible alternative. The County explained why each suggestion was infeasible in reference to the alternatives analyzed in the EIR and, as a result, SOHO failed to meets its burden of showing the County’s responses were inadequate.