Petitioner challenged the City of Malibu’s (City) approval of the Legacy Park project, a water treatment plant designed to reduce pollution and protect water quality at nearby beaches. After an unsuccessful appeal to the City Council, and denial of a writ at trial, the Petitioner appealed to the Second District Court of Appeal arguing that (1) the City’s EIR for the project failed to include an analysis of construction related project impacts, (2) impacts of using treated effluent from the neighboring Lumber Yard project, and (3) cumulative groundwater impacts. Regarding the first issue, the Court held the Petitioner’s argument was moot because the Petitioner failed to take steps to prevent the project’s construction during dispute. Since the project was already complete, it would be impossible for the court to grant effective relief for construction related impacts. Second, the court held that the alleged impacts of using treated effluent from the neighboring Lumber Yard project was analyzed in a prior unchallenged EIR. The Petitioner’s attack on this EIR was tantamount to a late-attack on this prior EIR. Third, the Court held that because substantial evidence supported the City’s conclusion that the project would not discharge anything into the groundwater, the project would not make a contribution to cumulative groundwater impacts.
To avoid alleged construction related environmental impacts becoming moot, a Petitioner should seek to enjoin construction while litigation is pending.