In East Oakland Stadium Alliance v. City of Oakland (2023) 89 Cal.App.5th 1226, the First District Court of Appeal considered a challenge to the City of Oakland’s EIR for the new Oakland A’s new baseball stadium and adjoining development at the Port of Oakland’s Howard Terminal. The court upheld the EIR, but for finding that it improperly deferred mitigation for wind impacts caused by the Project.


The Oakland A’s proposed developing a new 35,000-seat ballpark with adjacent residential and commercial uses, on a 50-acre site largely used for truck parking and container storage at Howard Terminal in the Port of Oakland.

The City of Oakland prepared and certified an EIR and adopted a statement of overriding considerations. The project approved by the City was identified as “Alternative 3” in the EIR, which included a grade-separated vehicle crossing over the railroad tracks adjacent to the site.

East Oakland Stadium Alliance (EOSA), Capitol Corridor Joint Powers Authority (CCJPA), and Union Pacific Railroad (UPR) filed writ petitions challenging the EIR. The Alameda County Superior Court found the EIR adequate on all accounts, with the exception of one wind mitigation measure that the court found to lack an adequate performance standard.

Only EOSA appealed. The City and the A’s cross-appealed. On appeal, EOSA raised arguments related to potential impacts from the adjacent railroad, displacement of current activities at the project site, air quality, GHG emissions, hazardous materials, and cumulative impacts. On cross-appeal, the City and the A’s argued that the wind mitigation measure was not improperly deferred.

The Court of Appeal’s Opinion

Railroad Impacts

The project sits adjacent to at-grade railroad tracks running down the center of a major street separating downtown Oakland from the waterfront. The City adopted a suite of mitigation measures to reduce potential impacts resulting from safety hazards for people visiting the ballpark, but concluded that the project would still have significant and unavoidable rail impacts.

EOSA challenged the mitigation measures on several grounds. First, it argued a measure requiring fencing on both sides of the track was infeasible because UPR had indicated that the City could not use the railroad right-of-way for a pedestrian pathway. Rejecting this argument, the court noted that even if UPR had an exclusive right-of way, the fence itself could still be installed and this would produce the desired effect of preventing pedestrians from crossing the tracks.

EOSA also argued that a pedestrian overcrossing required by the mitigation measures would not be effective due to its proposed location. The court disagreed, pointing to the EIR’s conclusion that the overpass would divert some, but not all, visitors from using at-grade crossings. This, coupled with the City’s acknowledgment in the statement of overriding considerations that the potential hazards could not be fully mitigated, constituted substantial evidence to support the City’s conclusions.

Finally, EOSA argued that the EIR failed to adequately consider mitigation that would require the temporary closure of at-grade crossing during ballgames and other events. The court determined, however, that EOSA had not exhausted its administrative remedies on this claim. Although EOSA submitted lengthy comments that the EIR should have considered permanently closing at-grade crossing, and only briefly mentioned potential temporary closures in passing, under a heading and buried in a paragraph that was unrelated to the topic. The court held that was not enough to fairly apprise the City of this issue, thus rendering it unexhausted and ineligible for judicial review.

Air Quality

The EIR’s air quality analysis assumed the project would require emergency generators to run for 50 hours per year, including for testing and maintenance. EOSA argued that the EIR was instead required to assume 100 hours of annual generator use, on top of testing and maintenance, based on guidance from the Bay Area Air Quality Management District (BAAQMD). The City countered that the EIR only needed to assess reasonable consequences, and 100 hours of generator use was not a reasonable assumption. This conclusion, the court held, was supported by substantial evidence. The court noted that the BAAQMD guidance applies across the entire Bay Area, which includes places designated “high fire risk,” but the project area is not so designated; therefore, it would not be reasonably foreseeable to assume the project would use emergency generators for 100 hours per year. The City also adopted a mitigation measure restricting testing and maintenance to 20 hours per year, which allowed for a 30-hour “buffer” for actual emergency use.

GHG Emissions

EOSA argued that the City improperly deferred mitigation for GHG emissions, and that “no net increase” in GHG emissions was not an appropriate performance standard. The court again disagreed, finding the measure met each of the requirements in CEQA Guidelines section 15126.4, subdivision (a)(1)(B). The court held that the City unquestionably committed to the mitigation because it prohibited approval of any permit allowing the project to proceed prior to preparation of a GHG mitigation plan. The court held that “no net additional GHG emissions” was an appropriate performance standard, and that the mitigation identified both a series of measures that must be incorporated into the plan, along with a five-page list of possible measures that could be implemented to meet the standard. The court concluded that the mitigation was therefore adequate.

Cumulative Impacts

EOSA also argued that the EIR was deficient because it did not include a possible expansion of the Port’s turning basin in the cumulative impacts analysis. When the EIR was prepared, however, the Port and the U.S. Army Corps of Engineers had only undertaken a feasibility study for the potential project. The court rejected EOSA’s argument that the feasibility study rendered the expansion a “probable future project” for which cumulative impacts must be analyzed. Because there was not yet a relatively complete plan of action and there were no details sufficiently certain to allow for meaningful analysis, the EIR was not required to include the potential turning basin expansion in its cumulative impact analysis.

Adequacy of Analysis

EOSA next argued that the EIR’s analysis of Alternative 3 did not include sufficient detail to support the City approval of the alternative. The City argued that the court need not reach this argument because EOSA again failed to exhaust its administrative remedies. EOSA countered that it was not required to exhaust this claim because it related to the City’s findings, and not the EIR itself. The court disagreed. According to the court, Alternative 3 was the iteration of the project that the City ultimately approved—thus, if EOSA could frame an argument as a “challenge the City’s findings” instead of as a “challenge to the EIR” in order to avoid CEQA’s exhaustion requirement, then doing so would allow any challenge to the adequacy of an EIR to be raised without exhausting. This, in turn, would improperly circumvent the procedural requirements of CEQA.


The court rejected the City and the A’s cross-appeal and upheld the trial court’s grant of the petition with respect to the wind mitigation measure. The EIR concluded that the project will have significant and unavoidable wind impacts because of tunneling effects created by the construction of tall buildings. The City adopted a mitigation measure that required a wind tunnel analysis for buildings that exceed 100 feet, and required the A’s to work with a wind consultant to identify mitigation strategies to prevent, to the extent feasible, additional exceedances of the City wind threshold, without unduly restricting development potential.

The court concluded that this measure improperly deferred mitigation under CEQA Guidelines section 15126.4, subdivision (a)(1)(B). The court held that the measure did not include a specific performance standard, but instead provided a “goal.” Specifically, the measure improperly allowed for balancing (i) reduced impacts to the maximum extent feasible, and (ii) refraining from unduly restricting development potential, without informing the public where that balance would be struck. The measure also did not define “unduly” or “development potential.” And with the exception of mentioning a few possible design changes, the measure did not identify the types of potential actions that could feasibly achieve the performance standard. The court also concluded that the adoption of a statement of overriding considerations did not relieve the City of its obligation to include a specific performance standard. For all of these reasons, the court held, the measure improperly deferred mitigating the project’s wind impacts.