In Jones v. Regents of the University of California, (— Cal.Rptr.3d —-, Cal.App. 1 Dist., April 8, 2010), a California court of appeal considered whether an environmental impact report (“EIR”) was deficient because it failed to consider a “true” off-site alternative to a project. The court of appeal held that the EIR was not deficient because it considered and rejected a partial off-site alternative and concluded it did not meet the project’s objectives.
The Lawrence Berkeley National Laboratory (“Lab”) is a special research campus that is owned and financed by the federal government but operated by the University of California (“UC”). The Lab occupies space in the eastern hills of Berkeley and Oakland, which is the main site, but also occupies space on the UC Berkeley Campus and other various leased locations. In January 2007, the Board of Regents of UC (“Regents”) published a draft EIR for a “2006 Long Range Development Plan” (“Plan”). The Plan “serves as the comprehensive land use plan to guide physical development of the Lab’s main site.” The Plan establishes at the main site the following four land zones: (1) 121acres for research and academics, (2) six acres for a central commons, (3) 19 acres for support services, and (4) 56 acres for open perimeter space. The Plan would increase the total building area on the main site from 1.76 million gross square feet to as much as 2.42 million gross square feet, the adjusted daily population (“ADP”) by 1,000, and would add 500 new parking spaces.
The Plan considered five alternatives, “No Growth,” “Reduced Growth 1,” “Reduced Growth 2,” “Preservation Alternative with [Non-Lab] Use of Historical Resources,” and the “Off-Site Alternative.” The no-project alternative would keep development at the 1987 Plan level, which would only increase building space by roughly 13 percent and ADP by nine percent. The Reduced Growth 1 and Reduced Growth 2 Alternatives describe lower levels of growth in different areas of the project. Under the Non-Lab Use plan, some of the Lab’s historical resources that are no longer feasible to use would be managed by another agency such as the National Park Service. The Off-Site Alternative provides that all development under the Plan would be split between the hill site and an off-site location.
Public comments on the draft EIR were accepted until March 23, 2007. The Regents certified the EIR on July 19, 2007, adopted mitigation measures and findings, and issued a statement of overriding considerations. A group of concerned citizens (“Citizens”) filed a petition for writ of mandate under the California Environmental Quality Act (“CEQA”). The trial court granted the petition in part on the limited ground that the Regents had failed to recirculate that portion of the EIR dealing with greenhouse gasses that were added in response to draft EIR comments. Both Regents and Citizens appealed.
Citizens’ assert that Regents abused their discretion when they considered Plan alternatives because they did not consider a “true off-site” alternative. Pursuant to CEQA, an EIR must consider and analyze project alternatives that would reduce environmental impacts. CEQA Guidelines require an EIR to “describe a range of reasonable alternatives to the project . . . which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project.” When considering alternatives, a local agency must “be guided by the doctrine of ‘feasibility.’” CEQA defines the term “feasible” as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, social, and technological factors.” Those “alternatives ‘whose effect cannot be reasonably ascertained and whose implementation is remote and speculative,’” do not have to be considered.
Regents set out six objectives and an underlying purpose for the Plan. The objectives include expanding partnerships and collaborations, returning staff from off-site facilities, expanding capacity of current facilities and providing broader functionality, rehabilitating facilities and adapting them for “new regions of scientific discovery,” replacing single-function facilities with new ones designed to accommodate multiple disciplines, and constructing new facilities to support future research and growth. The Plan’s stated purpose “is to guide the physical development of land and facilities and to provide a framework for implementing the [Lab’s] mission and scientific goals.” Two of the fundamental principles of the Plan are “to ‘build a more campus-like research environment’ and to ‘improve access and connections to enhance scientific and academic collaboration and interaction.’” The Plan seeks to “‘allow the Lab to evolve into a more campus-like setting,’ by ‘creating clusters of research and academic users close to one another,’” thereby ‘fostering interaction and informal encounters among Lab staff and supporting the team-science heritage of the Lab.’” The EIR concluded the off-site alternative would not meet the project objectives to expand the functionality of the facilities of the Lab and cross-disciplinary research or to foster collaborative work environments.
The court rejected Citizens’ contention that Regents were required to consider a “true no hillside growth” alternative under which all growth would occur at a satellite campus. “An EIR need not consider every conceivable alternative.” The court found that “the size and scope of [Plan] for the Lab limits the number of alternatives that are both feasible and would accomplish most of the goals of the project.” Regents considered an off-site alternative that would accomplish some of the project’s goals while reducing some of the environmental impacts. However, the Regents concluded this alternative would not meet the project objectives. The court concluded the “so called true-off site alternative” “would eliminate the project’s objectives of expanding the capacity of existing hill site facilities, as well as the rehabilitation and replacement of outdated hill site facilities.”
An EIR is required to “consider a reasonable range of potentially feasible alternatives and compare their environmental impacts” but “it does not have to identify and analyze alternatives that would not meet a project’s objectives nor does it have to discuss every possible permutation of alternatives.” The court concluded that if the partial off-site alternative was determined not to meet the project’s objectives, then it follows that the EIR is not deficient for failing to consider a complete-off site alternative.
The court found the Regent’s rejection of the off-site alternative is supported by substantial evidence that show the off-site alternative would not achieve the objectives of a more campus-like setting and enhancing collaboration, productivity, and efficiency. The off-site alternative would in fact result in a division of Lab resources between locations.
The court also found Citizens failed to exhaust their administrative remedies as to their argument that the EIR did not adequately consider water quality impacts. None of Citizens’ numerous water-quality- related comments on the draft EIR suggested that the draft EIR’s water quality analysis was deficient because it failed to consider “numerical benchmarks and standards.” Citizens also did not challenge “the sufficiency of the evidence supporting the EIR’s conclusion that the project would not result in significant impacts to water quality because of stormwater discharges exceeding such standards.” Because Citizens did not apprise the Regents about these issues in the administrative proceedings, they cannot now raise the issue on appeal.
In an unpublished portion of the opinion, the court of appeal considered the Regents’ appeal of the trial court’s holding that it violated CEQA when it amended “the draft EIR in response to public comments about greenhouse gas (GHG) emissions without circulating the final EIR for public review.” The draft EIR did not contain a discussion of the potential for climate change due to GHG emissions. After public comments were considered, the final EIR added a discussion about the project’s potential to increase emissions of GHG. The final EIR concluded the GHG emissions from the project “would not be cumulatively considerable, and the cumulative impact of the project would therefore be less than significant.” The court of appeal noted that although Citizens did not raise the issue of recirculating the EIR in the administrative proceedings, the trial court found Citizens “were not required to exhaust their claims because the Regents ‘did not provide for any clear public process after release of the final EIR.’”
As a general rule, judicial review is not allowed unless the issue was first presented at the administrative level. This exhaustion requirement, however “does not apply ‘to any alleged grounds for noncompliance with [CEQA] for which there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing prior to approval of the project, or if the public agency failed to give the notice required by law.’”
Here, Lab sent out a letter on July 5, 2007, notifying the public that the final EIR was complete and would be considered for certification by Regents on July 17, 2007. The letter advised that the final EIR could be downloaded or reviewed on the internet or hard copies could be obtained at the Berkeley Public Library. The letter also provided contact information for questions or to obtain a compact disc version of the EIR. Although the City of Berkeley and the Sierra Club submitted comments on the final EIR, neither suggested the draft EIR should be recirculated in light of the EIR’s discussion of GHG.
CEQA Guidelines provide, “A lead agency may, but need not provide an opportunity for the public to review a final EIR.” In fact, “CEQA ‘does not require formal hearings at any stage of the environmental review process,’” but instead requires “an opportunity for the public to be fully apprised of an impending project to voice its concerns.” The court found “the procedures employed by the Lab and Regents provided for wide public involvement and did not run afoul of CEQA.” Although the letter failed to include a time and location of the certification of the final EIR, “the notice referenced the date of such determination, provided several methods for obtaining a copy of the final EIR, and listed the name and contact information of the Lab’s planning coordinator and its community relations officer.”
The court of appeal concluded that Citizens were required but “failed to exhaust their administrative remedies on the issue of whether the Lab was required to recirculate the draft EIR after adding a discussion about GHG emissions, which was made in response to public comments.”
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