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OPR Releases Draft SB 743 CEQA Guidelines for the Evaluation of Transportation Impacts

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The Governor’s Office of Planning and Research released a preliminary discussion draft of revisions to the CEQA Guidelines implementing Senate Bill 743 on August 6, 2014. Currently, transportation impacts are typically evaluated based on the delay in traffic flows that vehicles experience at intersections and roadway segments. Delay is measured by the “level of service” or LOS. Mitigation for these impacts often takes the form of traffic improvements focused on increasing roadway capacity such as adding lanes. Recognizing that this practice may actually be counter to public policy by encouraging auto use and emissions, and discouraging alternative forms of transportation, OPR has proposed changes to how transportation impacts are evaluated. Specifically, OPR’s draft revisions to the CEQA Guidelines propose analysis of vehicle miles traveled (VMT), in lieu of LOS, for evaluating transportation impacts.

Most notably, OPR proposes to add Section 15064.3, a new section of the CEQA Guidelines that addresses new methods of measuring transportation impacts. Because Section 15064.3 would be added to Article 5 of the CEQA Guidelines, which relates to the “preliminary review of projects and conduct of initial study,” the new section would apply in the context of negative declarations and EIRs. To conform to the proposed Section 15064.3, OPR has also proposed amendments to the questions in Section XVI, Transportation and Traffic, of Appendix G.

Draft Section 15064.3 includes four subdivisions. Subdivision (a) discusses the purpose of the new section, stating that the primary considerations of a project’s transportation impacts are the amount and distance of vehicle travel associated with a project. Subdivision (a) expressly states that “[a] project’s effect on automobile delay does not constitute a significant environmental impact.” The draft section does not modify CEQA’s general rules regarding the determination of a project’s significant impacts, including the need to consider substantial evidence of a project’s environmental impacts.

Subdivision (b) specifies the criteria for determining the significance of transportation impacts. As stated in subdivision (b), VMT is “generally” the best measurement of transportation impacts, thus allowing agencies room to tailor their analyses to include other measures if appropriate. The draft section describes factors that might indicate whether a project’s VMT is less than significant or not, and gives examples of projects that might have less-than-significant impacts with respect to VMT, such as projects that would result in decreased VMT. Subdivision (b) recognizes that not all transportation projects will induce vehicle travel, such as projects improving transit operations, and thus would not result in a significant transportation impact. In addition to a project’s impact on VMT, “a lead agency may also consider localized effects of project-related transportation on safety.” Finally, subdivision (b) states that a lead agency’s evaluation of a project’s VMT “is subject to a rule of reason,” but also states that “a lead agency generally should not confine its evaluation to its own political boundaries.”

Subdivision (c) refers to proposed amendments in Appendix F, which addresses energy impacts. The proposed amendments to Appendix F acknowledge that VMT may be relevant to the analysis and mitigation of energy impacts. The proposed amendments to Appendix F include examples of mitigation measures and alternatives that may reduce VMT. Examples include improving the jobs/housing balance and improving access to transit. Subdivision (c) clarifies that the proposed revisions in the CEQA Guidelines and Appendix F do not limit an agency’s ability to condition a project pursuant to other laws. For example, agencies may continue to require projects to meet LOS designations set out in applicable general plans or zoning codes. Nor do the proposed revisions prevent an agency from enforcing previously adopted mitigation measures.

Finally, subdivision (d) proposes a phased approach to implementing Section 15064.3. OPR proposes that Section 15064.3 shall apply prospectively to new projects that have not started environmental review. Section 15064.3 shall apply immediately upon the filing of Section 15064.3 with the Secretary of State. After January 1, 2016, Section 15064.3 shall apply statewide.

Under the second part of OPR’s proposed revisions, OPR proposes amendments to Appendix F, which discusses the evaluation of energy impacts under CEQA noted above.

The draft guidelines can be viewed at:

http://opr.ca.gov/docs/Final_Preliminary_Discussion_Draft_of_Updates_Implementing_SB_743_080614.pdf

OPR is requesting that comments be submitted by October 10, 2014.

OPR Releases Draft SB 743 CEQA Guidelines

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Governor Brown signed SB 743 into law in September of 2013. Among other things, SB 743 requires the Governor’s Office of Planning and Research to propose and adopt amendments to the CEQA Guidelines to provide an alternative criteria to “level of service” for evaluating transportation impacts. The alternative criteria must “promote the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses.” The draft guidelines provide that “[g]enerally, transportation impacts of a project can be best measured using vehicle miles traveled.” The draft guidelines state that to the extent a transportation project increases physical roadway capacity for automobiles in a congested area, the transportation analysis “should analyze whether the project will induce additional automobile travel compared to existing conditions.”

The draft guidelines can be viewed here.

OPR is requesting that comments be submitted by October 10, 2014.

Supreme Court Reverses Court of Appeal, Holds Legislative Body Need Not Obtain Full CEQA Review Before It Directly Adopts a Voter Initiative

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The California Supreme Court held that CEQA review is not a prerequisite to directly adopting a voter initiative under Elections Code section 9214, subdivision (a), when it decided Tuolumne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores), Case No. S207173, on August 7, 2014. The Court reversed the Fifth District Court of Appeal’s opinion in Tuolumne Jobs & Small Business Alliance v. Superior Court (2012) (previously reported at 210 Cal.App.4th 1006).

A Wal-Mart store in the City of Sonora sought to expand into a Supercenter. Before the City Council voted on the project, voters circulated the “Wal-Mart Initiative,” which proposed to adopt a specific plan for the contemplated expansion in order to streamline approval of the Supercenter’s construction and operation. The petition was signed by over 20 percent of the City’s registered voters. The City then prepared a report on the initiative examining its consistency with previous approvals for the expansion pursuant to Election Code sections 9212, and 9214, subdivision (c), and adopted the ordinance. The Tuolumne Jobs & Small Business Alliance sued. The Court of Appeal held in favor of the Alliance, expressly disagreeing with the only published authority on point, Native American Sacred Site & Environmental Protection Assn. v. City of Juan Capistrano.

The issue before the Supreme Court was whether a legislative body must obtain full CEQA review before directly adopting a voter initiative under Elections Code section 9214, subdivision (a). Case law has established that CEQA compliance is not required before a legislative body submits an initiative to voters under section 9214, subdivision (b), and the Court held that the result should be the same where the legislative body adopts an ordinance put forth by voters. In reaching this conclusion, the Court noted that the statutory language of section 9214 makes no mention of CEQA. Furthermore, requiring CEQA compliance would effectively nullify the condensed deadlines in the Elections Code, and the abbreviated report provided for in the Code would be superfluous. CEQA would impliedly repeal contrary Elections Code procedures, and the Court emphasized the strong presumption against repeal by implication. The Court also found that application of CEQA to voter initiatives is contrary to Legislative intent, as Legislative history supported the conclusion that CEQA does not apply to any ordinances enacted by initiative, whether through an election or direct adoption.

Finally, the Court noted that direct adoption without CEQA review would not offend public policy. The possibility that interested parties may attempt to use initiatives to advance their own aims, it stated, is part of the democratic process. If direct adoption of an initiative were to result in the enactment of an undesirable law, voters have statutory remedies available to them.

Citizens for a Sustainable Treasure Island v. City and County of San Francisco

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(2014) 227 Cal.App.4th 1036 

The First District Court of Appeal upheld the EIR for a project designed to transform a former naval station into a vibrant mixed-use community. The project is a comprehensive plan to redevelop Naval Station Treasure Island, which ceased operations in 1997. The City and County of San Francisco, along with the Treasure Island Development Authority, certified the EIR for the Treasure Island / Yerba Buena Island Project in June 2011. A group called Citizens for a Sustainable Treasure Island challenged the decision, claiming the environmental documents violated CEQA on several grounds. The trial court denied the petition in its entirety. On appeal, the First District Court of Appeal affirmed the trial court’s judgment.  

The project, which will be constructed over 15 to 20 years, includes up to 8,000 new homes (with at least 25 percent designated as affordable units available at below-market prices); 500 hotel rooms; commercial, retail, and office space; and 300 acres of parks, playgrounds, and open space. The project also includes restoration and re-use of historic buildings, public utilities, bike and transit facilities, updated infrastructure, and a new ferry terminal and intermodal transit hub. Because the project will be built over time, with changing market conditions, it includes flexible parameters for certain project elements. All told, the project is expected to cost around $1.5 billion. 

The petitioner’s main argument on appeal was that the lead agencies abused their discretion by preparing a “project” EIR instead of a “program” EIR. Essentially, the petitioner argued that the project was too “flexible” and uncertain to support project–level review.  The court disagreed, noting that the fact that an EIR is labeled a “project” or “program” EIR matters little. Rather, the level of detail required in an EIR is determined by the nature of the project.  

The court also upheld the EIR’s project description, analyses of hazardous substances and historic resources, and its discussion regarding conformity with the “Tidelands Trust.” In addition, the court held that the draft EIR did not need to be recirculated in light of modifications made to the project to address Coast Guard concerns. (RMM partners Whit Manley and Chip Wilkins, along with associates Jennifer Holman and Jeannie Lee, represented Real Party in Interest Treasure Island Community Development, LLC, in the case.)

California Clean Energy Committee v. City of Woodland

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(2014) 225 Cal.App.4th 173 

The Third District Court of Appeal held that the City of Woodland’s EIR for a regional shopping center failed to comply with CEQA. The shopping center, known as “Gateway II,” was planned for undeveloped agricultural land on the outskirts of the city. The city prepared a programmatic EIR for the project, reduced its size from 234 acres to 61.3 acres as a result, and approved the project.  

In the published portion of the opinion, the court considered the sufficiency of five mitigation measures for urban decay impacts caused by the project. The court found that one measure, which served to ensure that the primary retail uses for the development would be regional and not compete with retailers in downtown Woodland, was permissible under CEQA. By itself, however, this measure did not constitute adequate mitigation of anticipated urban decay from the project. The court found the other measures inadequate because they lacked specificity or adequate commitments for future action. The court also held that the city’s treatment of energy impacts was inadequate, and that the city failed to comply with CEQA when it rejected a mixed-use alternative as infeasible. 

In the unpublished portion of the case, the court rejected the petitioner’s claim that the city’s actions in approving the shopping center violated the State Planning and Zoning Law because the project was inconsistent with the city’s general plan policy of revitalizing its downtown. The court held that the petitioner failed to preserve this argument because the petition did not plead a separate violation of the State Planning and Zoning Law. (RMM partners Whitman F. Manley and Sabrina Teller, associate Amanda Berlin and former RMM associate Holly Roberson represented the City of Woodland in the case.)

Court Finds EIR for Water Plan to Alter Kern River Allocations Deficient Under CEQA

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A Ventura County Superior Court judge held that the EIR for a water plan that would alter historic usage of Kern River water is inadequate and must be redrafted and recirculated as a focused EIR. The ruling marks the latest legal development in a longstanding dispute over Kern River flows.

At issue in the case was the Kern River Water Allocation Plan proposed by the Kern Delta Water Storage District. The plan calls for diverting about 33,000 acre-feet per year from the Kern River that historically have been released to junior water rights holders, including the North Kern Water Storage District and the City of Bakersfield. The Kern Delta district has sought to provide these “release waters” to other users. In litigation over the years, the North Kern district and Bakersfield have argued that the Kern Delta district forfeited portions of its appropriative water rights due to nonuse (i.e. due to the longstanding releases).

The EIR for the plan concluded that the Kern Delta district’s retention and diversion of the 33,000 acre-feet per year of water would cause no significant and unavoidable environmental impacts. The EIR acknowledged that groundwater levels would decline in the North Kern district service area between two to three feet and that some areas near recharge basins could experience water level decreases of up to 12 feet. The EIR concluded, however, that any immediate impacts to ranches, farms, and urban needs would “equilibrate” over time because the release of water to points south of the river in the Kern Delta district would benefit the large subbasin (known as the Kern River Fan) underlying the entire region.

The Kern Delta district’s board certified a final EIR for the plan in September 2012. The North Kern district, along with two other water agencies and the city of Shafter, sued, claiming multiple CEQA violations as well as violation of a prior injunction order. The petitioning water agencies’ counsel included James G. Moose, senior partner at Remy Moose Manley, LLP. The city of Bakersfield sued on similar grounds.

In his ruling (North Kern Water Storage District v. Kern Delta Water Storage District, June 5, 2014, Case No.: 56-2012-00425941-CU-WM-VTA), Ventura County Superior Court Judge Glen M. Reiser provided an extensive discussion of California’s water rights system and the complex history behind present-day allocations of Kern River water. The opinion is lengthy and sprinkled with literary passages from the Book of Proverbs, Leonardo da Vinci, and others.

The judge agreed with the petitioners that under CEQA, the EIR’s analysis of off-site impacts to groundwater was “opinion unsupported by any substantial evidence.” In particular, the court noted that the EIR lacked adequate “temporal context” involving timing, water levels, and water volumes to support its assertion that the Kern Fan would, at some point, “equilibrate.” The court also found the EIR’s analysis of land subsidence and cumulative losses of surface waters beyond the Kern Delta district’s boundaries to be inadequate.

The court issued a peremptory writ of mandate setting aside the final EIR’s certification and orderering the Kern Delta district to redraft and recirculate a supplemental “focused” EIR. The supplemental focused EIR must incorporate nine requirements aimed at adequately analyzing project-related impacts, including quantifying “equilibration” as it relates to the timing of aquifer recharge under the plan to divert 33,000 acre feet per year of water to users south of the Kern River.

Fifth District Court of Appeal Upholds EIR for Wind Farm in Kern County

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The court held that the EIR’s mitigation measure for aircraft safety impacts, requiring that wind turbines be reviewed by the Federal Aviation Administration before issuance of building permits, was feasible and enforceable. The court also held that substantial evidence supported the EIR’s conclusion that the mitigation measure would be effective to mitigate impacts on aviation safety. Citizens Opposing a Dangerous Environment v. County of Kern (June 30, 2014, Case No. F067567) was certified for partial publication on July 25.

The case arose from the County of Kern’s approval of a conditional use permit for the operation of a wind farm in the Tehachapi Wind Resource Area. The county approved the CUP for the construction of wind turbines, up to 500 feet tall, after preparing an EIR. The EIR determined that the wind turbines might pose significant safety hazards to aircraft and gliders using a nearby private airport. The county, therefore, adopted a mitigation measure requiring the project applicants to obtain a “Determination of No Hazard to Air Navigation” from the Federal Aviation Administration (FAA) for each wind turbine prior to issuance of building permits. Citizens Opposing a Dangerous Environment (CODE) filed a petition challenging the EIR on various grounds. The trial court denied the petition and CODE appealed.

CODE’s principal challenge on appeal was to the validity of the aircraft safety mitigation measure. CODE argued that the EIR failed to describe an adequate mitigation measure as a matter of law because the measure would not avoid or minimize significant impacts to aviation safety. The court disagreed, noting the mitigation measure’s requirement that the applicant obtain FAA certification for each wind turbine prior to construction. The court then pointed to other CEQA cases holding that mitigation measures requiring compliance with existing regulatory schemes are common and reasonable. And since federal law occupies the entire field of aviation safety, the court found it reasonable to expect compliance with FAA regulations by the applicants.

CODE also argued the aircraft safety mitigation measure was infeasible because the FAA could not legally block the project through enforcement of its “hazard/no-hazard” determinations. But the court noted the evidence suggested the hazard/no-hazard determinations can have a substantial practical impact on projects, even if the FAA did not directly have the power to halt the project. In any event, the mitigation measure made issuance of building permits for each wind turbine contingent on FAA approval. So while the FAA could not directly halt construction of the project, the county, through its police power, could. Therefore, the court determined the mitigation measure adopted to protect aircraft safety was feasible and enforceable, and the EIR’s conclusion that the mitigation measure would be effective was supported by substantial evidence.

The court also rejected CODE’s claims that the EIR should be set aside because the county failed to respond to late comments and that the county was required to adopt either CODE’s proffered mitigation measure or the EIR’s “environmentally superior alternative.”

Court of Appeal Holds Federal Law Does Not Preempt CEQA for High-Speed Train Project; Upholds Program EIR for Bay Area to Central Valley Route

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The Third District Court of Appeal held that the application of CEQA to the California High-Speed Train project was not preempted by federal law in Town of Atherton v. California High Speed Rail Authority (July 24, 2014, Case No. C070877). On the merits, the Court ruled in favor of the Authority on all claims, finding that the Authority’s program EIR wholly complied with CEQA.

As California’s plans for a high-speed train system have developed over the past two decades, the system’s alignment from the Central Valley to the San Francisco Bay Area became an area of contention. The particular dispute was over the Authority’s decision that trains travelling between the Central Valley and the Bay should travel through the Pacheco Pass, which turns west from between Fresno and Merced, rather than farther north at the Altamont Pass, which turns west from the Central Valley south of Stockton. According to the Authority’s corridor evaluation report, the Altamont Pass would require additional tracks to provide train service to San Jose, resulting in less frequent service to San Francisco and San Jose absent the provision of additional trains. Based upon this determination, the Authority prepared an EIR identifying the Pacheco Pass as the preferred alternative.

After a legal challenge to the initial EIR, the Authority revised its program EIR and again selected the Pacheco Pass route as the preferred alternative. The South Bay town of Atherton challenged the adequacy of the revised EIR and approval of the Pacheco Pass alternative, arguing that the program EIR violated CEQA because it (1) provided an inadequate analysis of the vertical profile options for alignment (i.e., where to elevate the track) along the San Francisco Peninsula; (2) used a flawed revenue and ridership model; and (3) had an inadequate range of alternatives because it rejected an alternative proposed by one expert consulting company.

Preemption

Prior to oral argument, the Authority asked the court to dismiss the case, contending that federal law, specifically the Interstate Commerce Commission Termination Act (ICCTA), preempted any CEQA remedy. It argued that the ICCTA created exclusive federal regulatory jurisdiction and a federal agency, the Surface Transportation Board, had recently assumed jurisdiction over the High-Speed Train. The court found it did not need to decide whether the ICCTA preempts CEQA as to the train, however, because at least one exception to preemption applied here. Under the market participation doctrine, proprietary state actions are protected from federal preemption. The court found no evidence supporting the Authority’s contention that the market participant exception could only be asserted defensively. Accordingly, the court held that CEQA applies to the project and proceeded to address petitioners’ claims on the merits.

Adequacy of the Program EIR

The court next addressed petitioners’ claims regarding the adequacy of the program EIR. The court upheld the Authority’s use of a program EIR and held that the Authority properly deferred site-specific analysis, including the vertical alignment, to a later project EIR. The court stated that the precise vertical alignment of the train at specific locations is the type of site-specific consideration that must be examined in detail in a project-level EIR. Requiring such analysis at the program level, the court reasoned, would undermine the purpose of tiering and would create a burdensome level of detail in the larger-scale program EIR.

The court also held that the challenge to the revenue and ridership modeling presented a disagreement among experts that did not make the revised final project EIR inadequate. Petitioners failed to show that the Authority’s ridership model was “clearly inadequate or unsupported,” and the modelers had followed generally accepted professional standards. Thus, substantial evidence supported use of that model.

Finally, the court held that the Authority studied an adequate range of alternatives and was not required to analyze the Altamont Pass alternative proposed by petitioners’ consulting company, given that the alternative was substantially similar to the alternatives already studied and that range of alternatives was not shown to be inadequate.

Court of Appeal Upholds San Jose’s Eighth Addendum to Airport Master Plan EIR

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The First District Court of Appeal held that changes to the City of San Jose’s Airport Master Plan did not constitute a new project as a matter of law and did not require supplemental review under Public Resources Code section 21166. The court ordered publication of the opinion – Citizens Against Airport Pollution v. City of San Jose (June 6, 2014, Case No. H038781) – on July 2, 2014.

The center of the dispute was an addendum to the City of San Jose’s 1997 EIR prepared for its International Airport Master Plan. The city had also prepared a Supplemental EIR for the plan in 2003. The addendum, which was the city’s eighth addendum to the 1997 EIR, assessed the impacts of proposed amendments to the Airport Master Plan, including changes to the size and location of future air cargo facilities, the replacement of air cargo facilities with 44 acres of general aviation facilities, and the modification of two taxiways to provide better access for corporate jets.

Petitioner Citizens Against Airport Pollution’s (CAAP) primary argument was that the amendments to the Airport Master Plan addressed in the eighth addendum constituted a new project as a matter of law, and therefore, an EIR addendum was barred under CEQA. Alternatively, CAAP argued that an EIR addendum could not be used to analyze the environmental impacts of the plan changes, since those changes were substantial and required major revisions to the EIR with respect to noise, greenhouse gas emissions, toxic air contaminants, and biological resources.

The Court of Appeal was not persuaded by CAAP’s argument that the changes to the Airport Master Plan constituted a new project as a matter of law, and that the city was therefore required to prepare a new EIR. The court confirmed that the an agency’s determination on whether supplemental environmental review is required is review under the substantial evidence test, distinguishing previous cases that applied the “fair argument” standard to the question of whether a subsequent approval was “within the scope” of a previous approval.

The court next turned to CAAP’s alternative argument that the city was required to prepare a supplemental EIR for the plan amendments because they were “substantial changes” requiring “major revisions” in the EIR. CAAP claimed that there would be new or more severe impacts in several areas including noise, greenhouse gas emissions, air quality, and biological resources.

Notably, the court rejected CAAP’s argument that the city was required to analyze Greenhouse Gas Emissions for the project since CEQA Guidelines section 15064.5, which requires analysis of GHG impacts in EIRs, was added to the Guidelines after the 1997 and 2003 EIRs were prepared. Relying on CREED v. City of San Diego (2011) 196 Cal.App.4th 515, the court held that the potential for GHG impacts was not substantial new information triggering the need for a supplemental EIR. Rather, the potential for GHG impacts have been known since well before the first EIR for the Master Plan was adopted.

The court also held that there was substantial evidence demonstrating that there would be no new or more severe impacts to biological resources. The addendum acknowledged that the project changes would result in the loss of four acres of burrowing owl habitat and included mitigation measures to mitigate the impact. The court explained that mitigation measures can be modified in an addendum if there is a legitimate reason and the changes are supported by substantial evidence. The mitigation measures in the addendum met that standard because they completely offset the loss of the four acres by establishing new permanent habitat. Moreover, the mitigation measure was only a change in the location of habitual preserved under a burrowing owl mitigation plan that as established for the 1997 EIR and it would be managed within the parameters of the established plan.

The court also upheld the city’s determination that potential changes in noise and air quality impacts did not trigger a supplemental environmental review because jet engines of today and the future are quieter and cleaner than the engines of 1997.

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