After years of environmental review and litigation, the First District Court of Appeal upheld permits authorizing the expansion of a landfill in Solano County. Waste Connections, Inc., has sought for more than a decade to expand the Potrero Hills Landfill, which is in an upland “secondary management area” of Suisun Marsh. In SPRAWLDEF v. San Francisco Bay Conservation and Development Commission, ___Cal.App.___, an environmental group challenged the San Francisco Bay Conservation and Development Commission’s approval of the permits, arguing that the commission should have approved a smaller expansion that would not affect a marsh watercourse. The court disagreed. Applying CEQA case law to the county ordinance at issue, the court held that substantial evidence in the record supported the commission’s determination that smaller alternatives were not economically reasonable.
Solano County Ordinance, section 31-300, allows modification of a marsh watercourse only if no “reasonable alternative” exists. The commission determined that a smaller expansion alternative, designed to avoid encroaching on the intermittent watercourse, would not be economically realistic. The trial court agreed with the petitioner, Sustainability, Parks, Recycling and Wildlife Legal Defense Fund (SPRAWLDEF), that no substantial evidence supported the commission’s determination. The Court of Appeal reversed.
In evaluating whether the commission had substantial evidence for its decision, the court applied CEQA principles. The court noted that, under CEQA, governments must choose “feasible” alternatives and “feasible” mitigation measures to lessen the significant environmental impacts of projects. Employing CEQA’s definition of “feasible” and CEQA case law concerning economic infeasibility, the court concluded that CEQA’s definition of economic “feasibility” embraces the concept of reasonableness. From there, the court engaged in an extensive discussion of CEQA case law.
The court distinguished this case from CEQA cases where a determination of economic infeasibility was legally inadequate. In those cases, meaningful comparison of the proposal and the alternatives was not possible because there was no evidence regarding the cost of the alternatives. Here, the court focused on the commission’s ability to compare the costs of the proposed expansion with that of the alternatives. Waste Connections, Inc. the landfill operator, explained its profit margins and advised the commission that the economic consequences of the alternatives would be so great that the project would not be “financially viable.” It submitted data for both the proposed expansion and the alternatives, comparing the per unit cost, capacity, and the life of the landfill for each. Thus, according to the court, the commission had an “adequate record before it to fairly determine the smaller alternatives were not economically reasonable.”
The court stated that there was “no merit” to SPRAWLDEF’s assertion that the economic information regarding the costs of the proposal and alternatives should be discounted or ignored because it was provided by the real party in interest, Waste Connections, and that it was within the province of the commission to find the information credible and accept it as accurate and relevant. The court determined that this data provided the commission with “some context” to assess the economic feasibility of the alternatives and held that there was substantial evidence to support the commission’s determination that the smaller alternatives were not economically feasible.