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SECOND APPELLATE DISTRICT AFFIRMS EIR FOR THE WESTSIDE SUBWAY EXTENSION PROJECT IN LOS ANGELES


In Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority, 2015 Cal. App. LEXIS 930, the Second Appellate District affirmed the trial court’s decision and rejected challenges to the environmental impact report/environmental impact statement (EIR/EIS) for the Westside Subway Extension Project.

The Constellation station alignment recommended for the subway extension required controversial tunneling under Beverly Hills High School. Beverly Hills Unified School District and the City of Beverly Hills (“Petitioners”) challenged Los Angeles County Metropolitan Transportation Authority’s (“Metro”) decision not to recirculate the Draft EIR/EIS, claiming that significant new information was added after the public comment period had closed. Petitioners also challenged the adequacy of the EIR/EIS’s air quality impacts analysis and claimed that the Metro’s conduct in holding a transit hearing was unlawful.

The Court first discussed Metro’s decision not to recirculate, noting that an agency’s decision not to recirculate an EIR is given substantial deference and presumed to be correct and that the challenging parties bear the burden of proof in showing that the agency’s decision was not supported by substantial evidence.

Here, Petitioners challenged the addition of fault investigation and tunnel safety reports to the Final EIR/EIS. These reports found that the proposed Santa Monica station in Century City was within active fault zones and therefore unsuitable and that there would be no significant impacts from tunneling under the high school and residences. As a result, the other proposed station for Century City analyzed in the Draft EIR/EIS—the Constellation station—became Metro’s preferred alternative. The Court found that the new reports merely confirmed suppositions raised in the Draft EIR/EIS and that the Draft EIR/EIS had made clear that both stations were being considered. Therefore, the Court upheld Metro’s decision not to recirculate because the Draft EIR/EIS provided a meaningful opportunity for public comment on the environmental effects of both the Santa Monica and Constellation stations.

Petitioners also argued that the EIR/EIS should have been recirculated because of changes in the air quality impact analysis between the Draft EIR/EIS and Final EIR/EIS. Because the Draft EIR/EIS and the Final EIR/EIS reached the same conclusion, the Court upheld Metro’s decision not to recirculate.

The Court also rejected a challenge to the adequacy of the EIR/EIS’s air quality impact analysis. The Court specifically rejected Petitioners’ claim that an EIR must analyze localized rather than regional air quality impacts and that an EIR must include an analysis showing how the actual construction emissions will specifically impact public health.

Petitioner City of Beverly Hills challenged Metro’s conduct during a transit hearing as unlawful. If requested, the Public Utilities Code requires Metro to hold a “transit hearing” to evaluate the reasonableness of locating transit facilities. The City requested and was granted such a hearing, but claimed that the hearing was unlawful because Metro’s Board was prejudiced, relied on hearsay evidence, and did not allow cross-examination of witnesses. The Court rejected this challenge, finding that the City got the transit hearing it had requested—an opportunity to present its own evidence.

Key Point:

Lead agencies are given substantial deference in their decision not to recirculate an EIR for public comment, and the courts will uphold the agency’s decision as long as significant new information did not deprive the public of a meaningful opportunity to comment on the project’s substantial environmental effects.



dateNovember 9th, 2015byby


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