Partners Whitman F. Manley and Tiffany K. Wright, and Associate Christopher J. Butcher, successfully defend the Los Angeles County Metropolitan Transportation Authority’s Decision to Include Potential Funding for the 710 Freeway Tunnel Project in a Sales Tax Measure Without Conducting Prior CEQA Review. In City of South Pasadena, et al. v. Los Angeles County Metropolitan Transportation Authority, the Second Appellate District held in an unpublished opinion issued on March 23, 2011, that the Los Angeles County Metropolitan Transportation Authority’s (Metro) decision to place a sales tax measure, known as the “Traffic Relief and Rail Expansion Ordinance,” on the November 4, 2008 election ballot (Measure R) did not constitute a “project,” as defined by the California Environmental Quality Act (CEQA). Therefore, the court rejected the argument advanced by the Cities of La Cañada and South Pasadena (Petitioners) that environmental review of the proposed 710 Freeway extension was required prior to including it in the list of potential projects eligible to receive Measure R funding.

The 710 Freeway is a major north-south interstate freeway which runs for 23 miles through Los Angeles County. The 710 runs from Long Beach to the City of Alhambra, and terminates between the cities of Alhambra and Los Angeles. The 710 Freeway was originally envisioned to extend through South Pasadena to connect to the 210 Freeway (710 Gap). Construction of a 4.5-mile extension to connect the 710 Gap has been delayed for decades due to community opposition.

In 2004, Caltrans and Metro began evaluating the potential to construct a tunnel to connect the 710 Gap (710 Tunnel) in order to avoid disturbing the residential neighborhoods that would be impacted by a surface route. Although this method has been used in other cities around the world, the twin 4.5-mile tunnels would be the longest in the United States. While preliminary studies researching the feasibility of the 710 Tunnel project were ongoing, Metro included the 710 proposal within Measure R as a project eligible to receive $780 million in project funding.

Generally, CEQA requires a lead agency to prepare an environmental impact report (EIR) prior to approving a project that may have a significant impact on the environment. The Petitioners argued that Metro, through inclusion of the 710 Tunnel project in Measure R, committed itself to construction of the 710 Tunnel project to a degree sufficient to constitute approval of the project pursuant to CEQA. The trial court rejected the petitioners’ argument because CEQA does not apply to “funding mechanisms.” Specifically, section 15378, subdivision (b)(4), of the CEQA Guidelines states that for purposes of CEQA, a “project” does not include “[t]he creation of government funding mechanisms or other governmental fiscal activities, which do not involve any commitment to any specific project which may result in a potentially significant impact on the environment.”

The Second Appellate District agreed with the trial court. The appellate court explained further that Measure R only lists items as “potential projects” and expressly states that the ultimate determination of a project’s status will “depend on the final environmental [review] process.” The court further took into consideration that Measure R includes provisions establishing procedures for future amendments to the funding plan, and permits projects to be eliminated in their entirety if necessary. Thus, the court held that Measure R did not constitute a binding obligation to spend in a specified way. Commitment is found, according to the court, when an agency has effectively precluded any alternatives or mitigation measures that would otherwise be required by CEQA. The court determined that Metro had not made such a commitment to the 710 Tunnel by including it within Measure R’s funding plan.