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CITY OF SAN JOSE’S LANDFILL EIR UPHELD BY COURT

Wednesday, December 9th, 2015

In an unpublished opinion, City of Milpitas v. City of San Jose, 2015 Cal. App. Unpub. LEXIS 8610, the Sixth Appellate District upheld the City of San Jose’s Environmental Impact Report (EIR) prepared for the Newby Island Sanitary Landfill and Recyclery. The programmatic EIR assessed the impacts of: (1) increasing the maximum elevation of the landfill to increase the landfill’s capacity; and (2) rezoning the landfill area and Recyclery to conform to existing and proposed landfill activities.

The Court first determined that the document qualified as a programmatic EIR because it involved a comprehensive rezoning and because specific details about construction and operation were not available for a number of uses proposed as part of the project, requiring further environmental review.

Applying the substantial evidence standard of review, the Court rejected the City of Milpitas’ allegation that the City of San Jose utilized an improper baseline that incorporated changes proposed by the project into its assumptions. One of the three baselines considered in the EIR was the “existing conditions (as they are today on the ground, including proposed changes to existing operations).” The Court found that this baseline was appropriate because the EIR first considered the existing conditions and then analyzed the effects of the proposed rezoning at a “first-tier level of detail.”

The Court next addressed whether the impact analysis was adequate. With regard to the light impact analysis, the Court found that, as a program-level document, the City of San Jose’s analysis was proper. The final EIR expressly called for further environmental review for many uses that would be allowed by the rezoning, including expansion of landfill yard activities and construction of new structures. The structures would presumably comply with the City of San Jose’s lighting policy and design guidelines and any potentially significant project-specific impacts would be identified and mitigated as part of later environmental review.

The Court then turned to the EIR’s noise analysis. The City of Milpitas alleged that the final EIR would allow the relocation of certain landfill activities within an identified California clapper rail buffer and the relocation of such landfill activities was not properly analyzed in the EIR. The Court deferred to the City of San Jose’s interpretation of the buffer and found that the project would have no significant operational noise or vibration impacts. To the extent that the City of Milpitas also challenged the use of existing noise conditions in determining whether new uses would be substantially louder, the Court found that the existing noise levels were appropriately part of the environmental baseline.

On the odor analysis, the Court rejected the City of Milpitas’ argument that the final EIR failed to follow the air district’s significance thresholds for odor. The Court held that because the final EIR effectively treated odor impacts as potentially significant and identified mitigation measures to counteract those impacts, any deficiency in compliance with the air district’s guidelines threshold of significance was harmless. The City of Milpitas’ allegation that the EIR failed to analyze the odor impacts of increased landfill gas emissions was also rejected by the Court; the expert conclusion in the record was not contradicted by other expert evidence. The Court also rejected arguments raised by the City of Milpitas regarding volatile organic compounds and sulfur oxides because they were forfeited for failure to exhaust administrative remedies. Even assuming the City of Milpitas had not forfeit those arguments, the Court held that it had not provided any expert evidence to support its assertions on appeal.

Finally, the Court rejected the City of Milpitas’ assertion that the EIR’s project objectives were drawn so narrowly that they precluded effective analysis of alternatives to the project. The Court recognized that CEQA does not forbid site-specific project objectives and found that the site specific nature of the EIR’s project objectives did not preclude effective alternatives analysis. The Court also held that the City Council’s conclusion that none of the alternatives was feasible was supported by substantial evidence.

Addendum Upheld: Amendments to San Jose Airport Master Plan Cleared For Landing

Monday, July 21st, 2014

In Citizens Against Airport Pollution v. City of San Jose (2014) Cal. App. LEXIS 588, the Court of Appeal for the Sixth District upheld the trial court’s denial of a writ of mandate challenging the City of San Jose’s (the City) approval of an addendum to an EIR analyzing the environmental impacts of amendments to San Jose Airport’s Master Plan (Airport Master Plan).

The City began updating the Airport Master Plan in 1988 to accommodate the projected growth at the airport.  The City approved the final environmental impact report (EIR) for the update in 1997.  From 1997 to 2010 eight addenda to the Airport Master Plan EIR were approved, with the eighth addendum considering the impacts changes to the size and location of planned air cargo facilities and modifications to the taxiing area of the runway.

Citizens Against Airport Pollution (CAAP) contended that the City violated the California Environmental Quality Act (CEQA) in approving the eighth addendum because the amendments to the Airport Master Plan were so significant that they constituted a new project for purposes of CEQA.  CAAP further contended that the 1997 EIR was a program EIR, as opposed to a narrower project EIR, and that a new EIR should be completed.  The court declined to determine whether the 1997 EIR was a project-level EIR or a broader program EIR, but held that there was substantial evidence to support the City’s finding that the amendments to the Airport Master Plan would not have a significant effect on noise, air quality, or the burrowing owl habitat as CAAP contended.

Relying on an analysis in the addendum that showed a decrease in daily aircraft operations and improved airplane technology resulting in quieter aircraft, the court found that there was substantial evidence that the amendments to the Airport Master Plan would not result in significant noise impacts.

Similarly, the projected decrease in aircraft operations resulted in no significant impact to air quality.  CAAP did not dispute the projected decrease in aircraft operations, thus the court found that there was substantial evidence to support the City’s findings that the impact on air quality was sufficiently analyzed in the 1997 EIR.

The court also found that there was substantial evidence to support the City’s findings that the amendments to the Airport Master Plan would not have a significant impact on the burrowing owls nesting in the unpaved portions of the airfield.  The 1997 EIR had concluded that implementation of the Airport Master Plan would impact the burrowing owl, which is a species of concern in California.  However, the EIR also included a Burrowing Owl Management Plan that established protected sections of the airfield and required biologists to monitor the burrowing owls in the area among other measures.  The eighth addendum included mitigation measures that were consistent with the Burrow Owl Management Plan and even provided for the construction of one-way doors to ensure that no burrowing owls would be trapped in their burrows when construction began.  As a result, the court held that the impact on the burrowing owl population at the airport was not substantially different than the impact considered in the 1997 EIR.

The court also rejected CAAP’s argument that a supplemental EIR was required to analyze greenhouse gas emissions.  A 2010 CEQA amendment requires lead agencies to make a “good-faith effort” to estimate the amount of greenhouse gas emissions from a project.  (CEQA Guidelines section 15064.4.)  However, CEQA does not require a supplemental EIR unless new information becomes available that was not known when the original EIR was completed.  The court held that the potential impact of greenhouse gas emissions was widely known in 1997 when the EIR was completed and in 2003 when a supplemental EIR was completed.  Therefore, the potential impact of greenhouse gases did not constitute new information and a supplemental EIR was not required.

KEY POINT

Once an EIR is completed for a project, a court applies the substantial evidence standard of review to determining whether project changes require a supplemental EIR.  If the lead agency can show there is substantial evidence to support a finding that there will be no significant impacts, the court will permit an addendum to the original EIR instead of a supplemental EIR.

Court Turns Tide in Favor of Desalination Plant – Holds Ample Substantial Evidence Supports the Project’s EIR

Monday, May 27th, 2013

Almost four years after the Marin Municipal Water District (MMWD) certified an environmental impact report (EIR) and approved a five million gallon a day desalination plant project, the Court of Appeal, First District, in a published opinion (N. Coast Rivers Alliance v. Marin Mun. Water Dist. Bd. of Dirs. (2013) 2013 Cal.App.LEXIS 401), reversed the trial court’s judgment and upheld the adequacy of EIR. At trial, the court determined the EIR violated CEQA in approximately a dozen ways.  Specifically, the trial court concluded the EIR included an inadequate analysis of (1) aesthetic impacts, (2) land use and planning impacts, (3) seismology impacts, (4) water quality impacts caused by shock chlorination, (5) biological impacts caused by entrainment, (6) energy impacts, and (7) greenhouse gas (GHG) emission impacts.  The trial court also concluded that the EIR proposed inadequate mitigation measures for (1) aesthetics, (2) aquatic noise and vibration, and (3) GHG emissions.  Finally, the trial court held that (1) with respect to biological resources the discussion of the existing environmental setting was insufficient, and (2) CEQA required the EIR to be recirculated because a new alternative was included in the Final EIR.  The First District reversed each of the trial court’s holdings.

With respect to aesthetic impacts, the First District stated that “[w]here an EIR contains factual evidence supporting the conclusion that aesthetic impacts will be insignificant, that conclusion must be upheld.”  Because the EIR included such facts and the Petitioners merely disagreed with them, the First District reversed the trial court. The First District also rejected the trial court’s ruling that adopting a landscaping plan as mitigation to soften visual impacts of a structure was inadequate absent a commitment to shield a specific percentage (i.e. 25%, 50%, etc.) of the structure from view.   The First District stated “‘where a public agency has evaluated the potential significant impacts of a project and has identified measures that will mitigate those impacts,’ and has committed to mitigating those impacts, the agency may defer precisely how mitigation will be achieved under the identified measures pending further study.” (Original emphasis.)

Next, the First District reversed the trial court’s holding regarding the adequacy of the land use and planning analysis.  The EIR concluded that, with the exception of one issue that was identified and analyzed in the EIR, the project was consistent with applicable local plans.  The trial court concluded a more detailed discussion of how the project would impact various county general plan policies was required.  The First District first noted that “[d]etermining whether a project is consistent with general plan policies is left to the lead agency; ‘[i]t is emphatically, not the role of the courts to micromanage’ such decisions.” (Original emphasis.)  Next, the First District explained CEQA only requires an EIR to discuss inconsistencies between a project and applicable plans, not all the ways in which a project is consistent with such plans.  “The trial court’s ruling is tantamount to requiring the EIR to provide a detailed discussion of the Project’s consistency with the plan.  CEQA includes no such requirement.”

Turning to the adequacy of the seismology analysis, the First District noted that only generic concerns regarding earthquakes were expressed during the administrative process.  The EIR’s analysis of potential seismology related impacts more than adequately responded to those comments.

The Fist District next rejected the trial court’s conclusion that the EIR’s discussion of potential water quality impacts caused by process used to clean the pipeline (known as shock-chlorination) was inadequate.  The First District began its analysis by stating that “[u]nder the substantial evidence standard, the ‘question is whether [MMWD] reasonably and in good faith discussed [shock-chlorination] in detail sufficient for the public to discern from the []EIR the ‘analytical route … agency traveled from evidence to action.’’” The First District concluded the EIR did.  The First District also rejected the Petitioners argument that it was improper for MMWD to rely on evidence outside of the EIR to support the less than significant impact conclusion reached by the EIR; “when an EIR contains a brief statement of reasons for concluding an impact is less than significant, then the petitioner has the burden of demonstrating ‘the conclusion was not supported by substantial evidence in the administrative record.’” (Original emphasis.)

At trial, the court was particularly critical of the EIR’s conclusions that biological resources impacts caused by entrainment were less than significant. The First District once again disagreed.  The EIR discussed a variety of field sampling techniques employed to evaluate potential entrainment impacts.  The First District stated that “[f]ield sampling is often the sole evidence relied on by lead agencies in evaluating a project’s biological impacts.”  Therefore, “[u]nder the substantial evidence standard of review, the District’s initial sampling effort was more than adequate.”  Nevertheless, MMWD even went further and conducted a year-long pilot-scale desalination program.  NOAA Fisheries and CDFG expressed concerns with one aspect of data collected during the year-long pilot program.  Petitioners argued that MMWD’s decision not to follow the recommendations made by NOAA Fisheries and CDFG rendered the analysis inadequate.  The trial court agreed; however, the First District explained that “[t]his ruling ignores the substantial evidence standard of review.”  Based on the substantial evidence standard, “[t]he issue is not whether other methods might have been used, but whether the agency relied on evidence that a ‘reasonable mind might accept as sufficient to support the conclusion reached’ in the EIR.” MMWD did.  Therefore, notwithstanding the disagreement with NOAA Fisheries and CDFG, the analysis was adequate for the purposes of CEQA.  Additionally, in part because the environmental setting relied on the same biological resource data that the First District found sufficient, it held  “the EIR’s description of the environmental setting was more than adequate.”

The First District also concluded the mitigation measure proposed to address the project’s potentially significant aquatic noise and vibration impact was adequate.  The trial court found that the measure was not sufficiently specific.  The First District disagreed.  The Court explained that “the commitment to undertake consultation with NOAA Fisheries does not impermissibly defer to the future the identification measures.  Consultation with NOAA Fisheries must occur, both as part of the federal permitting process under the CWA and ESA, and under the express terms of the mitigation measure.  Such mitigation is adequate under CEQA.” (Original emphasis.)

Next, the First District rejected the trial court’s conclusion that the EIR should have included a green energy alternative.  The Court explained that “alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the project.” (Original emphasis.)  The EIR concluded the project’s energy impacts were less than significant and the trial court held that conclusion was supported by substantial evidence. Therefore, “the EIR did not need to discuss further green energy credits as an alternative mitigation measure for the energy impacts of the Project.”

With respect to the GHG analysis, the First District reversed the trial court. Based on Assembly Bill No. 32 and MMWD’s own more aggressive goal to reduce GHG emissions, the threshold used in the EIR was whether the project would interfere with Marin County’s goal of reducing GHG emissions to 15 percent below 1990 levels by 2020.  The EIR concluded the project would not interfere with achieving that goal and, as a result, the project’s cumulative contribution was less than significant.  Additionally, in approving the project, the MMWD Board adopted a policy requiring all project-related GHG emissions be offset and the evidence demonstrated this policy commitment was feasible.  The Court also concluded the analysis and policy commitment were supported by substantial evidence.  Therefore, Petitioners’ challenge constituted nothing more than a disagreement with the conclusion reached in the EIR.  Such disagreement does not render an EIR inadequate.

Finally, Petitioners argued and the trial court agreed that the inclusion of a new alternative in the Final EIR required the EIR to be recirculated before certification.  The First District again disagreed.  The Court noted that “recirculation is ‘an exception rather than the general rule.’”  Therefore, “[a]n agency’s decision not to recirculate the draft EIR is entitled to substantial deference.”  The Court found that substantial evidence demonstrated that the new alternative was neither considerably different from other alternatives included in the Draft EIR nor feasible.  The alternative also failed to meet one of the project’s basic objectives.  As substantial evidence supported the finding that the alternative was not feasible, the First District concluded its inclusion in the Final EIR did not trigger recirculation.

The First District, therefore, reversed the trial court’s judgment against MMWD in its entirety.

Key Point:

Due to the substantial number of issues raised in this appeal, this decision is extremely helpful for lead agencies and project proponents. The decision helps to clarify the meaning and application of the substantial evidence standard of review in CEQA litigation. The decision also demonstrates that disagreements between a lead agency and other responsible and/or trustee agencies do not render an EIR inadequate. The decision further emphasizes that an EIR’s analysis of less than significant impacts need only be brief and a conclusion of less than significant may properly be supported by evidence outside the EIR and contained elsewhere in the administrative record. Finally, the decision supports the conclusion that 15% below 1990 GHG emissions by 2020 is an adequate significance threshold for analyzing GHG impacts.

Written By: Tina Thomas and Christopher Butcher

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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Tahoe Resort Expansion Delayed for Improper CEQA Alternatives Analysis

Friday, March 1st, 2013

In Sierra Club v. Tahoe Regional Planning Agency (January 4, 2013) U.S. Dist. LEXIS 1628, the U.S. Court for the Eastern District of California granted the plaintiffs’ motion for summary judgment, finding a proposed project’s alternatives analysis violated the California Environmental Quality Act (CEQA).  The court ordered the defendants to delay construction until a legally adequate environmental document had been certified and the necessary findings under CEQA had been made.

The project would expand Homewood Mountain Resort (Resort), located on the west shore of Lake Tahoe in Placer County, from 25,000 square feet to over one million square feet.  Approval of the project required action by both Placer County and the Tahoe Regional Planning Agency (TRPA), including several amendments to TRPA’s Regional Plan, adopted in 1987 (Regional Plan).  In January 2011, the two agencies issued a joint draft environmental impact report/environmental impact statement (EIR/EIS), pursuant to the requirements of CEQA and the Compact between California and Nevada establishing the TRPA, analyzing potential impacts of the project.

The plaintiffs first argued the EIR/EIS failed to consider a reasonable range of alternatives because it did not consider an alternative that required no amendments to the Regional Plan.  The EIR/EIS explained that a “no-amendment” alternative would eliminate overnight lodging, making the alternative inconsistent with the Resort’s objective to transform Homewood into an overnight destination.  The court held that the agencies considered a reasonable range of alternatives, explaining an EIR is not rendered deficient merely because it does not address a particular alternative called for by petitioners.  Instead, an EIR need only consider a reasonable range of alternatives that would be capable of avoiding or substantially lessening any significant effects of a project.  Here, the EIR/EIS included six alternatives (besides the proposed project), which allowed the public and decision makers to compare the impacts of closing the Resort, reducing the size of the proposed project, and adjusting the proposed project in different ways to address environmental impacts. The court found that this range of alternatives allowed informed decision making, as required by CEQA.

The plaintiffs also argued that the EIR/EIS failed to provide enough reduced-size alternatives, arguing that although the EIR/EIS considered one such alternative, the impacts of another reduced-size alternative would have been substantially less.  The court again disagreed, explaining that CEQA does not require an EIR to consider “each and every conceivable variation of the alternatives stated.”

The plaintiffs next argued that the agencies’ findings of financial infeasibility for the reduced-size alternatives were in violation of CEQA.  The court held that the findings were not supported by substantial evidence because they failed to consider all of the Resort’s revenue streams, and not just income generated from the sale of ski lift tickets.  The court explained that, had the economic analysis considered all sources of revenue, it would have concluded that the reduced-size alternative would be less profitable, but not economically infeasible.  The plaintiffs also argued the agencies failed to adequately explain why the reduced-size alternatives were rejected as economically infeasible.  The court again agreed, explaining the failure to include information on how additional revenue streams would enable the ski resort to be financially viable in the future was misleading to the public because it suggests that ski lift ticket sales revenue is the only relevant factor in assessing the financial viability of the Resort.

The plaintiffs next challenged the EIR/EIS’s analyses of soil, water, and air quality impacts.  The EIR/EIS proposed several mitigation measures to reduce the impacts on these resources to a less than significant level.  The court rejected each of the Plaintiffs’ arguments, finding each mitigation proposal was based on substantial evidence.

The plaintiffs also unsuccessfully challenged the adequacy of the EIR/EIS analysis of construction noise impacts.  The EIR/EIS adopted both the County’s and TRPA’s noise ordinance as thresholds of significance.  Both of these ordinances exempted daytime construction noise from noise limitations, and plaintiffs therefore argued the noise analysis did not meaningfully consider noise.  However, the EIR/EIS also included a separate detailed analysis of the construction noise impacts.  The court therefore found substantial evidence existed to support the conclusion that the noise impacts were less than significant because the EIR/EIS did not rely on the exemption in the ordinance and evade doing a separate analysis of construction noise impacts.

Finally, the plaintiffs argued that the EIR/EIS failed to adequately analyze noise impacts associated with expanding the Resort’s snowmaking system.  A plan for the expanded system was submitted with the project, but that plan was not part of the approval granted by the agencies and any specific snowmaking expansion plan would require further approval from the county and TRPA.  The EIR/EIS therefore included a “worst case scenario” to assess and mitigate those impacts.  The court held the EIR/EIS did not improperly defer analysis of the snowmaking expansion’s noise impacts; rather, its program-level analysis provided sufficient detail to allow the public and decision makers to understand and meaningfully consider the impacts.

Written By: Tina Thomas, Amy Higuera and Andrea Lutge (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Court Hauls Private Road Project Back to County for Further Environmental Review

Wednesday, February 13th, 2013

In an unpublished decision, Forest Tull v. Yuba County (Jan. 11, 2013) 2013 Cal.App.Unpub.LEXIS 247, Forest and Bobbie Tull (the Tulls), challenged Yuba County’s (County) certification of an EIR for a gravel haul road proposed by Teichert & Sons (Teichert).  The Tulls alleged that the EIR failed to consider feasible alternate routes for the haul road, and that the EIR’s drainage, noise, and traffic safety impact analyses were inadequate.  In addition, the Tulls alleged that two Yuba County ordinances, which inform the process of certifying EIRs, violated CEQA.

The court first agreed with the Tulls that the EIR failed to consider feasible alternative routes.  The court pointed specifically to inconsistencies in the EIR’s alternatives analysis.  The court reasoned that after characterizing one particular alternative as “environmentally superior,” the EIR then classified it as infeasible because eminent domain proceedings would be required to acquire the land.  The court held this explanation was insufficient because the “County was perfectly willing to use eminent domain proceedings to acquire land to complete the private haul road.”

Turning to the noise and vibration impacts, the court found the EIR in error because, although it properly identified the threshold of significance, “at minimum, the quietest of the Teichert trucks,” would exceed that threshold.  In addition, the court held that the EIR failed to account for potentially significant impacts from the project because it failed to characterize the noise from the “loudest trucks.”  Furthermore, the court found, the measure of noise used disguised the impact of the project.  The court also rejected/questioned “the EIR’s use of a 24-hour average noise measure [because it] artificially lowers the decibels that can be expected to result from the project.”

The court next held that the EIR failed to disclose the County’s plan to condemn land for a drainage pond and analyze potential hydrology impacts of this plan.  The court reasoned that “under CEQA, it is well established that [a] project description that omits integral components of the project may result in an EIR that fails to disclose the actual impacts of the project.”

In addressing the EIR’s traffic and safety analysis, the court held that the County properly studied the traffic and safety impacts of the haul road.  The court also rejected the Tulls’ criticisms regarding the conclusions found in the traffic and safety analysis, explaining that the Tulls only pointed to “conflicts of evidence” that the County already considered and  the court was not required to “reweigh.”

Finally, the court held that the combined operation of Yuba County ordinance section 11.10.580 and 11.10.581 violated the CEQA Guidelines.  Section 11.10.580 permits the Planning Commission to either certify the EIR as adequate or return it for corrections prior to certification.  The court interpreted section 11.10.580, together with section 11.10.581, which states, “the action of the Planning Commission to certify a Final EIR shall be final unless appealed to the Board of Supervisors within 10 days,” to permit the Planning Commission to certify EIRs without recourse to the Board of Supervisors.  The court held this violated CEQA Guidelines, section 15090, which requires a decision making body review and consider the information contained in the EIR prior to approving the project.

Written By: Tina Thomas , Christopher Butcher and Andrea Lutge (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Appellate Court Upholds EIR Given its Discrepancies Are Minor and Present No Risk of Prejudice to the Environmental Review Process

Wednesday, November 7th, 2012

In Mount Shasta Bioregional Ecology Center v. County of Siskiyou (2012) 210 Cal.App.4th 184, Siskiyou County (County) approved a project to expand an existing wood veneer manufacturing facility for the cogeneration of electricity for resale.  The Mount Shasta Bioregional Ecology Center and the Weed Concerned Citizens (Plaintiffs) sought a writ of mandate against County claiming the project approval violated the California Environmental Quality Act (CEQA) because the project environmental impact report (EIR): (1) failed to adequately analyze alternatives and (2) failed to fully disclose, analyze, and mitigate air quality, noise, and water quality impacts.  The Third District Court of Appeal upheld the EIR upon finding its minor deficiencies did not prejudice the environmental review process.

CEQA requires an EIR to analyze a range of project alternatives that would reduce adverse environmental impacts and could be successfully accomplished within a reasonable period of time and attain the basic objectives of the project.  Plaintiffs contended the EIR’s analysis of the project and the “No Project” alternatives alone were not enough.  The court explained under CEQA, there is no magic number of alternatives the County must consider.  Given the circumstances of the case and the basic project objectives, the court found the alternatives analysis sufficient under CEQA.  The court also explained Plaintiffs had a burden to show the EIR failed to include a particular alternative that was potentially feasible under the circumstances, which Plaintiffs failed to meet.

Plaintiffs next contended the EIR failed to analyze and mitigate air quality, noise, and water impacts of the project.  Plaintiffs’ first claim targeted the EIR’s baseline.  CEQA guidelines require an EIR to include a description of the project’s environmental setting, which is then used as the baseline to determine whether a project’s impact is significant.  Plaintiffs claimed the EIR incorrectly relied on an approximation of emissions as opposed to actual emissions.  County responded the baseline used data representative of actual operations at the existing facility and not the maximum permitted or hypothetical rates.  Upon finding the actual and approximate emissions were nearly identical, the court concluded the seven percent difference would not “have precluded informed decision-making or … public participation,” and was therefore adequate under CEQA.

Plaintiffs’ complaint regarding noise impacts consisted of several separate issues, all of which were rejected, mostly due to no substantial evidence and legal support.  One claim was the EIR lacked evidence supporting its conclusion that project noise impacts will be less than significant.  Plaintiffs claimed the EIR should have included a 24-hour noise study to determine if outdoor noise is already excessively loud, instead of “just a few 15-minute noise level measurements.”  The court explained there is nothing requiring a 24-hour measurement rather than periodic sampling during a 24-hour period.  Plaintiffs also alleged a failure to look at the cumulative noise impacts in Weed.  Given a significant cumulative noise impact already existed in Weed, and the project would add very little noise to that total, the court upheld the EIR’s determination that the Project’s cumulative noise impacts would be less than significant.  Lastly, Plaintiffs argued the County should have recirculated the EIR after two “significant new noise reports” were added to it.  If new information is added to an EIR after completion of the public comment period, the lead agency must recirculate the EIR with a new comment period.  The court noticed while the Draft EIR did not include the studies, it did identify both reports and include a summary of the findings.  Inclusion of the two reports in their entirety thus did not constitute adding significant new information.  Recirculation was not necessary.

Plaintiffs’ last claim alleged the EIR failed to include an adequate description and analysis of the impacts on water quality and usage.  Plaintiffs did not provide legal or factual bases to show future water use will change, and presented nothing to refute the Final EIR’s conclusion that the Project’s water use would be consistent with historical practice and adjudicated water rights.  The court also held Plaintiffs’ argument regarding the Project’s water usage was a difference of opinion as to how the project’s cooling tower will operate, which is no ground for setting aside County’s approval of the EIR.

Key Point:

When examining an EIR, the court will generally defer to the lead agency and refuse to overturn an EIR if its minor discrepancies don’t cause prejudice to the environmental review process.  As seen in this case, the court will also refuse to set aside an EIR if the opposing party either fails to present substantial evidence of CEQA violations or fails to present evidence other than a difference of opinion.

Written By: Tina Thomas, Christopher Butcher and Holly McMannes (law clerk)
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For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.

The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal. App. 4th 1552

Tuesday, May 22nd, 2012

After the Sunnyvale City Council (City) approved the expansion of the Palo Alto Medical Foundation’s medical campus and certified the project’s EIR, Petitioner filed a challenge arguing (1) The project was inconsistent with the City’s general plan; (2) The EIR failed to use a proper baseline for traffic analysis; and (3) The EIR improperly analyzed the project’s impacts of construction noise. The trial court denied the petition. Petitioner appealed to the Sixth District Court of Appeal. Addressing Petitioner’s first challenge, the Court found that an EIR is required only to analyze a project’s inconsistency with a city’s general plan, not a project’s consistency with the plan. In this case, the Court held that there was no inconsistency. Second, the Court upheld the traffic baseline used in the EIR. In Sunnyvale West Neighborhood Assn., et all v. City of Sunnyvale City Council (2010) 190 Cal. App. 4th 1351, a case decided by the same Appellate Court (but a different panel of judges), concluded that the use of future-based traffic impacts as a baseline for EIR analysis was legally inadequate. The Court differentiated this case from the 2010 case by explaining that this EIR included both the proper existing “background” traffic baseline and the future conditions baseline. Therefore, the court held the EIR complied with the requirements of CEQA. Lastly, with respect to the Petitioner’s challenge about construction noise, the Court found that the City’s EIR adequately analyzed and included eleven mitigation measures and alternatives to lessen construction noise impacts. Thus, the Court upheld the lower court’s decision and the City’s approval of the project and certification of the EIR.

Key Points:

An EIR may discuss and use a future-baseline analysis to assist in evaluating the potential traffic impacts of a project, but the the EIR must also disclose and discuss the existing baseline as part of the analysis to comply with CEQA.

Chawanakee Unified School Dist. v. County of Madera (2011) 196 Cal.App.4th 1016

Tuesday, May 22nd, 2012

The Chawanakee Unified School District (Petitioner) filed a petition for writ of mandate against the County of Madera’s (County) approval of an EIR for a development project, arguing that the approval did not comply with CEQA. The trial court denied the petition. Petitioner appealed the ruling to the Fifth District Court of Appeal, which reversed the lower court’s decision. In determining that the County’s EIR was sufficient, the Court examined SB 50, which amended Government Code section 65996, subdivision (a). The Court found that SB 50, in providing a cap on the amount of fees that can be imposed on new developments to fund construction of school facilities, capped the amount of fees required to mitigate school facility impacts under CEQA. However, the Court explained that this was a relatively narrow limitation and only “direct” impacts on school facilities were excused by SB 50. The Court concluded that other impacts of the project on school facilities, such as traffic, noise, and dust impacts, are “indirect” impacts and thus not excused by SB 50. Therefore, the Court held that the County must analyze and mitigate those impacts in an EIR. The Court remanded the case to the trial court to grant a petition for writ of mandate.

Key Point:

SB 50 does not eliminate the need for an EIR to analyze and mitigate a project’s environmental impacts on the physical environment surrounding a school.

Court Upholds EIR for a Wind Energy Project Despite the Conceptual Nature of the Project Description

Tuesday, February 21st, 2012

In an unpublished decision, Bedford v. Santa Barbara County, 2012 Cal.App.Unpub.LEXIS 886, the Second Appellate District upheld a trial court’s ruling denying a petition challenging the adequacy of an environmental impact report for a wind farm project in Santa Barbara County. First, the Court upheld the trial court’s determination that the Petitioners failed to exhaust their administrative remedies relating to the adequacy of the environmental baseline and propriety of deferring certain mitigation measures. The Court explained that objections must be sufficiently specific so that the lead agency has an opportunity to evaluate and respond to them. Here, Petitioners failed to meet this burden.

Second, the Court rejected Petitioners’ challenges to the project description concluding that while the project description was conceptual, it was sufficient for the purposes of CEQA review. In reaching its holding, the Court stated that “[i]t is true the precise location of the [wind turbine generators] is unknown. But the EIR’s analysis of visual impacts is based on the maximum potential impact that the project could have. In fact, it analyzes the maximum visual impact from [] public places…” The Court also rejected Petitioners’ argument that the project description must disclose the exact type of turbines the project would use. The Court found that by disclosing the maximum height and noise allowed, the project description was not required to disclose the type of generator that would be utilized.

Third, the Court held that the four alternatives included in the EIR constituted a reasonable range of alternatives and that the EIR was not required to analyze alternatives to components of the Project. The Court also explained that the EIR properly rejected certain alternative sites as infeasible “based on sound objective criteria such as the time necessary to develop alternative sites, and the inability of alternative configurations of the WTGs on the proposed site to generate sufficient electricity.”

Fourth, the Court found the noise analysis was supported by substantial evidence because it was based on the worst case scenario. Therefore, while exact noise levels are not known, the EIR properly evaluated the potential for the project to result in significant noise impacts.

Finally, the Court rejected Petitioners’ challenges relating to the Project’s consistency with local land use policies because the policies either were not mandatory or that mitigation included in the EIR ensured compliance.

Key Points:

CEQA requires that an EIR is commenced early in the planning process. Therefore, complete and final project details are not always known during preparation of an EIR. Here, the Court held that because the project description and impact analyses in an EIR for a wind energy project provided sufficient detail to consider the worst case scenario, the EIR complied with CEQA.

Written By: Tina Thomas and Chris Butcher

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