Second District Holds the Purpose of CEQA Is to Consider Impacts of Projects on the Environment rather than Environment’s Impacts on the Project

Ballona Wetlands Land Trust v. City of Los Angeles
(2011) 201 Cal.App.4th 455

The Second District Court of Appeal upheld a revised EIR for the Playa Vista phase two project, prepared after a previous peremptory writ had been issued. The project opponents challenged the revised EIR with respect to the project description, the analysis of archaeological resources, the analysis of sea level rise resulting from global climate change, and the finding of no significant impact on land use consistency. The court concluded that the EIR adequately discussed preservation in place of archaeological resources and sea level rise. The court also concluded that newly-asserted challenges to the project description and the findings on consistency were beyond the trial court’s jurisdiction in these proceedings after issuance of the peremptory writ.

CEQA Guidelines section 15126.4, subdivision (b)(3) states that preservation in place is the preferred manner to mitigate impacts on historic archaeological resources and expressly requires a discussion of preservation in place in an EIR involving a historical archaeological site. The revised EIR stated that preservation in place is the preferred manner of mitigating impacts to archaeological sites, but explained the infeasibility of preservation in place. The revised EIR therefore concluded that data recovery and curation are appropriate mitigation measures, and described other mitigation measures that had already occurred and that would continue to occur. The court held that this analysis satisfied the requirements of CEQA Guidelines section 15126.4, subdivision (b)(3).

The court then addressed whether the revised EIR was required to analyze the effects of sea level rise on the project. The court explained that “the purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effects of the environment on the project.” In doing so, the court cited CEQA Guidelines section 15126.2, subdivision (a), which states in part that: “The EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected. For example, an EIR on a subdivision astride an active fault line should identify as a significant effect the seismic hazard to future occupants of the subdivision. The subdivision would have the effect of attracting people to the location and exposing them to the hazards found there. Similarly, the EIR should evaluate any potentially significant impacts of locating development in other areas susceptible to hazardous conditions (e.g., floodplains, coastlines, wildfire risk areas) as identified in authoritative hazard maps, risk assessments or in land use plans addressing such hazards.”

The court explained: “We believe that identifying the environmental effects of attracting development and people to an area is consistent with CEQA’s legislative purpose and statutory requirements, but identifying the effects on the project and its users of locating the project in a particular environmental setting is neither consistent with CEQA’s legislative purpose nor required by the CEQA statutes.” The court thus held that “[c]ontrary to Guidelines section 15162.2 subdivision (a). . . an EIR need not identify or analyze such effects.”

Regarding sea level rise, the revised EIR briefly noted that global warming could result in sea level rise and the inundation of coastal areas, but provided no specific analysis of the impact on the phase two project site. It also explained in responses to comments that according to estimates by the Intergovernmental Panel on Climate Change that the project was not expected to be subjected to inundation as a result of sea level rise resulting from climate change. The court had rejected the opponents request for judicial notice of a flood hazard map prepared by the city prior to approval of the project because the map was not included in the administrative record and the opponents had shown no extraordinary circumstances to justify consideration of the extra-record evidence. The court held the revised EIR’s discussion of sea level rise was adequate.

In previous litigation, the court had held that the previous EIR’s analysis of land use impacts was inadequate, and therefore a peremptory writ was issued. In their challenge to the return to the writ and in their supplemental petition challenging the revised EIR, the project opponents asserted new challenges related to the project description, land use impacts, and the city’s findings regarding these issues. The court held that these challenges had to be raised prior to the judgment in the previous round of litigation, and therefore rejected them.