Second District Court of Appeal Upholds EIR for Westside Subway Extension

The court affirmed the trial court’s denial of the Beverly Hills Unified School District’s (“School District”) and City of Beverly Hills’ (“City”) petitions. The court found substantial evidence supported the Los Angeles Metropolitan Transportation Authority’s (“Metro”) decision not to recirculate the EIS/EIR; that the EIS/EIR adequately discussed air pollution and public health impacts; and that Metro did not violate statutory requirements in conducting its transit hearing, the City received a full and fair hearing, and substantial evidence supported Metro’s decision and findings. RMM attorneys Whit Manley, Tiffany Wright and Laura Harris represented Metro. (Beverly Hills Unified School Dist. V. Los Angeles County Metropolitan Transportation Authority (Oct. 22, 2015) ___ Cal.App.4th ___ (Case No. B256605).)

Factual and Procedural Background

Metro developed a draft EIS/EIR for a new subway line connecting the Westside of Los Angeles and Downtown. The EIS/EIR analyzed two potential stations in Century City at an equal level of review: the Santa Monica station and the Constellation station. The EIS/EIR found that the Santa Monica station would be compromised by its close proximity to the Santa Monica fault, and that the Constellation site would have a lower seismic risk because it was farther away. The Constellation site was also more centrally located and accessible.

After the end of the comment period on the EIS/EIR, during which Metro received nearly 2,000 comments, Metro’s Board directed that both the Santa Monica and Constellation station options be carried forward for further study. Metro then conducted a tunneling safety investigation that concluded tunneling could be safely carried out beneath Beverly Hills High School and residential neighborhoods using closed-face tunnel boring machines. Metro also conducted additional seismic and geophysical studies that ruled out the Santa Monica station due to its proximity to an active fault zone. The final EIS/EIR therefore recommended that the Century City station be located at the Constellation location.

Three days before the board was scheduled to approve the project and certify the EIS/EIR, the City requested a transit hearing under the Public Utilities Code. Metro held the hearing, at which it submitted documentary evidence to the City and gave the City the floor to speak. The City argued there had not been sufficient investigation and facts for the board to make its siting decision. At its next meeting Metro adopted the findings for the transit hearing and approved the project and certified the EIS/EIR. The City and School District sued.

Court of Appeal Decision

On appeal, the School District contended Metro abused its discretion by refusing to recirculate the EIS/EIR because the final version contained significant new information regarding seismic risks and environmental issues arising from tunneling under the high school. The City challenged the procedural validity of the transit hearing, and also argued that Metro was required to recirculate the EIS/EIR because of significant new air quality impacts disclosed in the final EIS/EIR, and that the EIS/EIR’s analysis of localized air quality and health impacts was inadequate.

The court disagreed. Giving substantial deference to Metro in its decision not to recirculate, the court found the EIS/EIR’s designation of the Santa Monica station as the “base” station and the Constellation station as the “option” immaterial, given that the agency had evaluated both locations equally. The court also found the EIS/EIR had discussed the potential environmental impacts of both stations, including the impacts of tunneling under the high school, and the public had been given an opportunity to comment on those impacts. The elimination of the Santa Monica station in the final EIS/EIR was not “significant new information,” but rather eliminated a potential source of seismic hazard.

The City did not cite to any law supporting its assertion that the EIS/EIR was required to include analysis showing how the actual construction emissions would specifically impact public health. The court also rejected the City’s argument that the EIS/EIR had to be recirculated because of the originally-reported increase in emissions. Metro had already adopted an addendum to the final EIS/EIR that corrected the original overstatement.

The court also rejected contentions related to the alleged unlawfulness of the transit hearing. The court noted that the decision on the station location and alignment was legislative, not adjudicative, and that the City did not need to cross-examine Metro’s witnesses because the dispute pertained to the information contained in the submitted documents. No right to cross-examine Metro witnesses existed after the hearing. Furthermore, the documentary evidence was not hearsay as it was not used as proof of the matter asserted, but simply to show that the evidence existed.