NATURAL RESOURCES DEFENSE COUNCIL, INC. v. CALIFORNIA DEPARTMENT OF TRANSPORTATION, REGION 7 No. B228048.
NATURAL RESOURCES DEFENSE COUNCIL, INC. et al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF TRANSPORTATION, REGION 7, Defendant and Respondent, ALAMEDA CORRIDOR TRANSPORTATION AUTHORITY, Real Party in Interest and Respondent.
Court of Appeals of California, Second District, Division Seven.
Filed November 22, 2011.
David Pettit , Melissa LinPerrella and Adriano Martinez for Plaintiffs and Appellants.
Ronald W. Beals , Thomas C. Fellenz , David H. McCray , Judith A. Carlson and Elizabeth R. Strayer for Defendant and Respondent California Department of Transportation, Region 7.
Alston & Bird, Sharon Rubalcava , Shiraz D. Tangri and Marisa E. Blackshire for Real Party in Interest and Respondent Alameda Corridor Transportation Authority.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Appellants Natural Resources Defense Council, Inc., East Yard Communities for Environmental Justice, and Coalition for a Safe Environment appeal from a judgment in favor of respondents California Department of Transportation, Region 7, and Alameda Corridor Transportation Authority after issuance of an order denying appellants' petition for a writ of administrative mandamus. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2009, respondent California Department of Transportation, Region 7 (Caltrans) approved a project for the Schuyler Heim Bridge Replacement and the State Route 47 (SR-47) Expressway, a new diesel truck expressway, to improve the transportation system serving the Ports of Long Beach and Los Angeles and the surrounding neighborhoods. This appeal concerns only the approval for the SR-47 Expressway (the Project).
The Project is a joint endeavor by Caltrans and the Federal Highway Administration. The Project is subject to environmental review under the California Environmental Quality Act (CEQA, Pub. Resources Code, § 21000 et seq.)
Appellants promptly filed a petition for writ of mandate, challenging the approval of the Project on the basis of failure to comply with CEQA. The trial court issued a written decision denying the petition in August 2010.
SR-47 is an existing roadway that connects Terminal Island, where many of the ports' cargo terminals are located, to the mainland via the Commodore Schuyler F. Heim Bridge (Bridge). The Project is for a four-lane, limited-access, elevated roadway which is approximately 1.7 miles in length. The Project is planned to start at the southern end of the Bridge and extend beyond the northern end of the Bridge above surface streets, connecting Terminal Island to the Alameda Street corridor. Its purpose is to improve north-south connectivity between the ports and the regional freeway system in order to reduce traffic congestion on surface streets, improve safety by providing a route to bypass signalized intersections and railroad crossings, as well as an improved emergency service route.
At the time the environmental impact report (EIR) was certified, the ports were projecting that the amount of cargo entering the ports would almost double between 2010 and 2020. Most of the traffic in the port area involves cargo containers moving via truck, rail or a combination of both. Currently, traffic on SR-47 travelling between Terminal Island and the Interstate 405 freeway is significantly congested and proceeds on local streets, passing through three signalized intersections and five railroad crossings.
The environmental review of the Project began when Caltrans published a Notice of Preparation (NOP) for the project on February 1, 2002. In 2004, a scoping notice to the public appeared in local newspapers. Thereafter, respondents conducted scoping meetings. Caltrans approved the draft EIR (DEIR) on August 13, 2007 and released it for public review and comment on August 17. Appellants submitted extensive comments on the DEIR.
The DEIR included several technical appendices, including a 2007 traffic study and an air quality impacts technical study. A public meeting on the DEIR was held on September 25, 2007. The 60-day public review period for the DEIR was extended until November 2007. Caltrans received over 40 written comments. In response to public comments on the DEIR, ACTA authorized the preparation of a health risk assessment to further study the Project's potential public health impacts.
Caltrans determined the health risk assessment constituted new information and recirculated the DEIR on November 14, 2008. A public meeting on the recirculated DEIR was held in January 2009. The public review period for the recirculated DEIR was extended beyond the required 45-day period. Written comments were accepted through February 13, 2009. Appellants submitted comments on the recirculated DEIR.
On May 12, 2009, Caltrans approved and certified the final EIR (FEIR). On May 28, Caltrans circulated the FEIR for public review. One of the appellants, Natural Resources Defense Council, submitted comments on the FEIR on June 1. Caltrans filed a Notice of Determination for the FEIR on August 12.
The FEIR included responses to each public comment previously received. One of the responses included a "sensitivity analysis" regarding certain health risks under an assumed traffic model which took into consideration two proposed near-dock rail expansion projects: an expansion approximately doubling the existing Union Pacific Intermodal Container Transport Facility (ICTF) and a new facility, the Burlington Northern Santa Fe Southern California International Gateway (SCIG). ACTA performed the analysis in response to one of the public comments.
Appellants filed a petition for writ of mandate in September 2009 challenging Caltrans' certification of the FEIR and Project approval, asserting claims under CEQA. Appellants alleged noncompliance with CEQA with respect to the sufficiency of the FEIR provisions regarding greenhouse gas (GHG) emissions and associated climate change, traffic and health risk impacts, as well as feasible mitigation measures and the analysis of feasible alternatives. Appellants also alleged that Caltrans was required to recirculate the FEIR prior to its approval, in that the "sensitivity analysis" regarding health risks added significant new information.
In its written decision issued in August 2010, the trial court determined that Appellants' claims were factual in nature and subject to assessment under the substantial evidence test. The trial court denied each claim of the petition.
Appellants contend that Caltrans' approval and certification of the Project must be reversed due to violations of CEQA in connection with the FEIR, as follows: inadequate assessment of GHG impacts, failure to adequately analyze and mitigate traffic impacts, underestimating air pollution and health risks, failure to mitigate significant Project impacts, inadequate analysis of alternatives to the Project, and failure to recirculate the certified FEIR after Caltrans included the "sensitivity analysis" in its response to a public comment. We disagree.
A. CEQA Overview
An expressed Legislative intent underlying CEQA is "that all agencies of the state government which regulate activities of private individuals, corporations, and public agencies which are found to affect the quality of the environment, shall regulate such activities so that major consideration is given to preventing environmental damage, while providing a decent home and satisfying living environment for every Californian." (CEQA, § 21000, subd. (g).) The furtherance of a legislative policy to ensure that protection of the environment is "the guiding criterion in public decisions." (Id., § 21001, subd. (d).) "CEQA's fundamental objective is `to ensure "that environmental considerations play a significant role in governmental decision-making"'" in order to enable "the decision-makers and the public to make an `independent, reasoned judgment' about a proposed project." (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 935.)
In reviewing a trial court's denial of a writ of mandate to overturn an agency's decision for compliance with CEQA, we review the administrative record
We review "the agency's action, not the trial court's decision; in that sense" our review "is de novo." (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 427.) We presume the correctness of the agency's decision (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564) and draw all reasonable inferences from and resolve all conflicts in the evidence in favor of the decision
Subject to limited exceptions, CEQA requires that a public agency complete an EIR whenever the agency proposes to approve or to carry out a project that may have a significant effect on the environment. (CEQA, § 21100; Guidelines, § 15002, subd. (f)(1); Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 390-391.) A "significant effect on the environment" is defined as "a substantial, or potentially substantial, adverse change in the environment." (CEQA, § 21068; see also Guidelines, § 15002, subd. (g).) The EIR must "identify and focus on the significant environmental effects of the proposed project." (Guidelines, § 15126.2, subd. (a).)
An EIR is an "informational document" (CEQA, § 21061) which "is the heart of CEQA" (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1162). The purpose of an EIR is to provide public agencies and the public in general with detailed information about the significant effects which a proposed project is likely to have on the environment; to list ways to mitigate the effects; and to evaluate alternatives to the project with respect to significant effects and mitigation. (CEQA, § 2106.) We do not review the correctness of the EIR conclusions but only whether the EIR is sufficient as an informational document. (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 392-393.) "An evaluation of the environmental effects of a proposed project need not be exhaustive[. T]he sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. . . . The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure." (Guidelines, § 15151.)
To satisfy CEQA requirements, an "EIR must demonstrate that the significant environmental impacts of the proposed project were adequately investigated and discussed . . . in the full environmental context." (Guidelines, § 15125, subd. (c); see also Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 431-432.) If the EIR fails to include information needed for "`"informed decisionmaking and informed public participation,"'" the statutory goals of the CEQA process are thwarted and, therefore, the error is prejudicial; as a result, we must overturn the agency's decision. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 118.)
The EIR process begins with the issuance to the public of a notice of an NOP of a DEIR. (CEQA, §§ 21092, 21092.1.) After the lead agency circulates the DEIR for public comment, the agency evaluates the DEIR in light of public comments received and issues responses to significant environmental points raised in the comments. (Guidelines, §§ 15087, 15088.) The lead agency then prepares a final FEIR which incorporates the public comments and the response, as well as changes or additions based upon them. (Guidelines, §§ 15090, 15132, subds. (b)-(d).) "The lead agency must certify that the final EIR has been completed in compliance with CEQA and that the information in the final EIR was considered by the agency before approving the project. (Guidelines, § 15090.) Before approving the project, the lead agency must also find either that the project's significant environmental effects identified in the EIR have been avoided or mitigated, or that unmitigated effects are outweighed by the project's benefits. ([CEQA,] §§ 21002, 21002.1, and 21081; Guidelines, §§ 15091-15093.)" (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 391.)
B. GHG Emissions and Climate Change Impacts
In the FEIR, Caltrans made determinations required by CEQA of whether potential environmental impacts of each of the alternatives identified for the Project would be significant or less than significant.
Appellants apparently do not distinguish between a reasonable effort to disclose and exhaustive disclosure of all possibilities. To satisfy CEQA, "[a]n evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible." (Guidelines, § 15151.) Review of the FEIR reveals extensive detailed GHG emissions and climate change qualitative analyses supported by quantitative data.
Caltrans primarily used a qualitative approach for assessing GHG emissions and related climate change impacts. The approach was one of six possible approaches endorsed by the Association of Environmental Professionals (AEP) in its March 5, 2007 White Paper entitled "Recommendations by the Association of Environmental Professionals on How To Analyze Greenhouse Gas Emissions and Global Climate Change in CEQA Documents" (M. Hendrix et al.) (AEP White Paper).
Appellants assert that the claimed inadequacy of the FEIR is not excused by the fact that, as Caltrans states in the FEIR, "No federal, state or regional regulatory agency has provided methodology or criteria for GHG emissions and climate change impact analysis." Appellants imply that Caltrans did not consider other available analytical methodologies. They cite several entities that have identified various analytical methodologies to forecast GHG emissions and/or assess associated climate change impacts for specific environmental settings,
The implication that Caltrans presented only these conclusory statements and did not consider methodologies from these or other sources is soundly refuted by review of the FEIR and related reports included in the administrative record. While it is true that Caltrans explained its selection of a primarily qualitative analysis based upon the absence of regulatory standards and definitive scientific information for quantifying GHG emissions and the related direct and cumulative impacts on climate change for the Project, there is ample evidence that Caltrans adequately disclosed the Project's GHG emissions and climate change impacts.
Caltrans noted that the Project itself—i.e., the SR-47 Expressway—will not generate any emissions from a stationary source such as a manufacturing plant might; rather, the only emissions associated with the Project will be mobile source emissions from trucks and other motor vehicles that use the expressway. According to Caltrans, most of the available quantitative methods for assessing environmental effects were for stationary source emissions and Caltrans found none that had been recognized as accurate or reliable for the type of mobile source emissions associated with the Project. While other entities had made efforts to quantify GHG emissions, Caltrans explained, the projects to which they applied had been on a large scale. Caltrans specifically discussed the methodology and data from the CARB 2008 updated GHG inventory for California, which included projections up to 2020 on a statewide scale, and the climate change analysis from a 2008 draft environmental impact statement completed by the National Highway Traffic Safety Administration covering the entire national passenger car and light truck fleet.
Appellants mischaracterize applicable law when they assert that, "CEQA is clear: even if a `sophisticated technical analysis [is] not feasible, if some reasonable, albeit less exacting, analysis' could be performed, an agency is required to perform that analysis and report the results." Guidelines section 15204, subdivision (a), provides, "CEQA does not require a lead agency to conduct every test or perform all research, study, and experimentation recommended or demanded by commentors. When responding to comments, lead agencies need only respond to significant environmental issues and do not need to provide all information requested by reviewers, as long as a good faith effort at full disclosure is made in the EIR."
The two judicial opinions cited by appellants are distinguishable from the instant case and, thus, do not support appellants' contentions with regard to the inadequacy of the analysis of the Project's GHG emissions and related climate change impacts. The opinions are Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70 and Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344. In both cases, the lead agency made only conclusory statements as to an impact, without further explanation of how or why they reached the conclusions.
Appellants are mistaken in their assertion that Caltrans claimed that an individual project cannot have a significant effect on climate change. Caltrans pointed out that the AEP arrived at that conclusion in its 2008 White Paper on climate change analysis for CEQA purposes.
Appellants contend that the conclusion that the Project will decrease GHG emissions lacks support.
Appellants claim that the extensive quantitative analysis of criteria air pollutants included in the FEIR is not sufficient to support Caltrans' conclusions that GHG emissions are expected to decrease.
Lastly, review of the FEIR readily refutes appellants' contention that Caltrans ignored construction-related emissions in its qualitative analysis of GHG emissions and climate change. The quantitative data for criteria air pollutants included data for the construction phase, as well as the operational phase.
In sum, as the foregoing discussion shows, review of the administrative record reveals substantial evidence to support Caltrans' determination that the Project's anticipated GHG emissions and climate change impacts would be less than significant. Contrary to appellants' contentions, the record shows that the FEIR was "`prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences'" related to GHG emissions and climate change. (Citizens to Preserve the Ojai v. County of Ventura, supra, 176 Cal.App.3d at 429.)
C. Traffic Impacts
Caltrans determined that traffic impacts associated with Alternative 1 were less than significant.
The administrative record includes substantial evidence that Caltrans evaluated the Project's traffic impacts to the extent reasonably feasible, as CEQA required. (See Guidelines, § 15151.) Caltrans consultants performed a comprehensive traffic study that analyzed current and forecasted traffic conditions and the potential traffic effects of each of the Project alternatives.
In any event, the ICTF and SCIG projects did not meet the FEIR's requirements for related projects to be included in the cumulative impact analysis required by CEQA. Guidelines section 15130, subdivision (a), requires that an EIR discuss cumulative impacts of a project where the incremental effect of the project, evaluated with related impacts of other projects in the affected area, is "`cumulatively considerable.'" A lead agency has discretion to set a reasonable cutoff date for projects subject to cumulative impacts analysis—for example, only projects which had filed for regulatory environmental review. (Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1128.)
Early in the CEQA process, Caltrans determined that the FEIR would include in its analyses only those other projects that were "proposed by formal public notices (Notice of Intent, Notice of Preparation)" when the preparation of the DEIR began. Appellants do not claim error with respect to the cutoff criteria adopted by Caltrans. The cutoff criteria are consistent with the foreseeability principle governing EIR content; "[a]n impact `which is speculative or unlikely to occur is not reasonably foreseeable.' (Guidelines, § 15064, subd. (d)(3).)" (Anderson First Coalition v. City of Anderson (2005) 130 Cal.App.4th 1173, 1182.) An EIR must analyze only those environmental impacts of a proposed project which are direct or indirect, but reasonably foreseeable, and which are significant. (Guidelines §§ 15064, subd. (d), 15126.2; Anderson First Coalition, supra, at p. 1182.)
Neither the ICTF project nor the SCIG project came within the cutoff criteria for projects to be considered with respect to cumulative impacts analysis. The NOP for the ICTF project was not issued until after the DEIR and the recirculated DEIR were circulated for public review. The NOP for the SCIG project was issued in 2005, three years after the NOP for the Project was issued. In addition, the SCIG project NOP did not indicate potential changes in traffic patterns which might result from the project and, thus, did not signal a possible relationship to the primary environmental focus for analysis in the Project's EIR. Nevertheless, Caltrans disclosed the existence of the proposals for the project in the DEIR and the FEIR. Caltrans included the SCIG and ICTF projects in the list of related projects in the cumulative impacts chapter but with a footnote explaining that they were not included in the cumulative impacts analysis, in that they were not reasonably foreseeable at the time of issuance of the NOP for the Project alternatives. The footnote also explained that each project had not been approved, was not included in the air quality plan or traffic modeling, and that, in any event, exclusion of the project represented a worst-case scenario with respect to traffic.
Substantial evidence, therefore, supports the conclusion that Caltrans' analysis of traffic impacts of the Project, including the proposed ICTF and SCIG projects, was sufficient to satisfy CEQA requirements. Under CEQA, there are two alternatives to determining elements "necessary to an adequate discussion of significant cumulative impacts." (Guidelines, § 15130, subd. (b).) The alternative employed by Caltrans in the FEIR is "[a] summary of projections contained in an adopted local [or] regional . . . plan, or related planning document, that describes or evaluates conditions contributing to the cumulative effect." (Id., § 15130, subd. (b)(1)(B).) The discussion "need not provide as great detail as is provided for the effects attributable to the project alone [and] . . . should be guided by the standards of practicality and reasonableness." (Id., § 15130, subd. (b).) It is evident from the record, which we have very briefly summarized, that the FEIR "`comprehensively, if not perfectly, analyzed the issue'" of traffic, including the potential traffic effects associated with the proposed SCIG and ICTF projects. (Planning & Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th at p. 246, quoting Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 631.)
D. Air Pollution and Health Risks
As to information about air quality in the FEIR, Caltrans determined that, even with required mitigation measures, there would be a temporary significant impact to air quality during construction, in that criteria pollutants emissions were predicted to exceed daily significance thresholds established by SCAQMD. During operation, the only significant air quality impact that could not be fully mitigated related to the Bridge rather than the Project.
Appellants make the general claim that Caltrans violated CEQA by underestimating the impacts of air pollution and public health risks associated with the Project. Appellants correctly point out that Caltrans and ACTA did not agree with respect to the health risk assessment for the Project. However, appellants' statement that Caltrans "disavowed the health risk assessment" is misleading to the extent it implies that Caltrans did not perform an adequate evaluation of health risks. The FEIR gives a detailed explanation of the reasons Caltrans determined that, for CEQA purposes, the adverse health impacts associated with operation of the Project were less than significant, contrary to the conclusion reached by ACTA. As a result of Caltrans' detailed approach, the public and decision makers received the benefit of the health risk information developed by not just the lead agency, Caltrans, but also a responsible agency, ACTA.
Appellants cite comments from other sources, such as the EPA and SCAQMD, as pointing out specific deficiencies. Appellants ignore, however, the detailed responses provided by Caltrans, based upon federal and California law, as well as third-party sources such as air quality agency standards and rules and the Clean Air Action Plan for reducing emissions from trucks. Caltrans' responses rectify commentators' misunderstandings of the FEIR, which are evident from their comments, and the responses reiterate the sources for related Caltrans' assumptions and analytical methodologies.
The health risk assessment information in the FEIR constitutes substantial evidence that the FEIR complied with CEQA with respect to health risks and achieved the goal of assuring informed public participation and informed decision making. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th at p. 118.) To some extent, appellants' claims appear to relate to content of the conclusions reached by Caltrans. As previously noted, we do not review the correctness of the EIR conclusions but only whether the EIR is sufficient as an informative document. (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 392-393.) "Disagreement among experts does not make an EIR inadequate . . . ." (Guidelines, § 15151.)
E. No Recirculation Due to Inclusion of the "Sensitivity Analysis"
Another air quality analysis deficiency claimed by appellants relates to the supplemental traffic "sensitivity analysis" which ACTA prepared. The analysis was included in a response to a commentor's suggestion, made when the FEIR was circulated after it was approved, that the FEIR should address the health risk impacts that might arise if the proposed ICTF and SCIG projects ever were built out in the configuration as proposed at that time. The accuracy of the analysis was subject to question, in that it was based upon an assumed traffic model if the proposed ICTF and SCIG projects were ever actually built.
First, the FEIR had already been approved and certified by the time the "sensitivity analysis" was added. Appellants cite no provision of CEQA requiring recirculation of an FEIR after it has been approved and certified, and we know of none. Appellants point out that CEQA section 21092.1 requires recirculation of an EIR "[w]hen significant new information is added to" the EIR; however, they ignore the statute's limitation to only situations where the information was added "prior to certification." (See also Guidelines, § 15088.5.) The "sensitivity analysis" was not added prior to certification of the FEIR. As supporting authority for their claim that, nonetheless, recirculation was required in this case, appellants cite Save Our Peninsula Committee v. Monterey County Bd. of Supervisors, supra, 87 Cal.App.4th 99, but they provide no explanation of how the case supports their position. In our view, the case provides no support. The issue in Save Our Peninsula was whether failure to recirculate an EIR with new information that became available prior to the agency approving the EIR violated CEQA. (Id. at p. 132.) The court ruled that it was a violation and affirmed the trial court's grant of a writ of mandate requiring the preparation of an EIR that properly analyzed the new information. (Id. at pp. 132-133.)
In addition, interpreting CEQA section 21092.1 to require recirculation after EIR approval would run afoul of the principle that "CEQA is not to be interpreted `in a manner which imposes procedural or substantive requirements beyond those explicitly stated in [the CEQA statutes] or . . . guidelines.' [Citation.]" (Martin v. City and County of San Francisco (2005) 135 Cal.App.4th 392, 402.) "[T]he Legislature did not intend to promote endless rounds of revision and recirculation of EIR's [by enacting CEQA section 21092.1]. Recirculation was intended to be an exception, rather than the general rule. . . . In our interpretation of section 21092.1, we have given consideration to both the legislative goals of furthering public participation in the CEQA process and of not unduly prolonging the process so that the process deters development and advancement." (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1132.)
Lastly, the new data on cancer risk in residential areas provided by the "sensitivity analysis" did not constitute significant new information for CEQA purposes. The new data was consistent with the results from the more extensive health risk assessment of the Project included in the DEIR and, prior to its approval, the FEIR and did not disclose any potential for any new traffic and/or health risk impacts that were not otherwise disclosed or analyzed in the FEIR. The "sensitivity analysis" showed that the cancer risk did not exceed 10 chances in a million, the CEQA threshold which Caltrans applied for qualifying a risk as significant under CEQA in its more extensive health risk assessment.
The FEIR lists 12 air quality mitigation measures for use during the Project construction phase. Caltrans concluded that, even using these measures, unavoidable significant, but temporary, environmental effects on air quality would occur during construction. According to appellants, Caltrans violated CEQA by not acting on public comments by SCAQMD, EPA and others about the air quality analysis and mitigation measures. The commentors suggested Caltrans should have used a particular SCAQMD method for assessing health risks from emissions,
In its response regarding the comments on the suggested air quality assessment methodology and the mitigation measures based upon the original methodology, Caltrans gave reasons why, if the suggested methodology had been used, the impact would have been determined to be less than significant. That result would have rendered the FEIR-incorporated and the commentors' suggested mitigation measures moot. Caltrans explained that the approach used for the FEIR represented a "worst-case scenario" and, thus, satisfied CEQA requirements.
Guidelines section 15204, subdivision (a), provides that commentors should be aware that "the adequacy of an EIR is determined in terms of what is reasonably feasible, in light of factors such as the magnitude of the project at issue, the severity of its likely environmental impacts, and the geographic scope of the project," and that CEQA does not require a lead agency to act on every recommendation by commentors. It is sufficient for CEQA purposes if an "EIR evaluates the `reasonable worst-case scenario' . . . [or otherwise] `comprehensively, if not perfectly, analyze[s] the issue.'" (Planning & Conservation League v. Castaic Lake Water Agency, supra, 180 Cal.App.4th at p. 246.) An EIR need not be exhaustive. (See Guidelines, § 15151.) Caltrans adequately responded to the cited comments suggesting additional analyses and extension of mitigation measures. Thus, we conclude that Caltrans' responses to the comments raised by appellants were sufficient for CEQA compliance.
As to air quality and GHG emissions impacts, appellants claim that, in selecting the alternatives to be analyzed in the EIR, Caltrans failed to consider zero-emissions (non-truck) alternatives. In addition, according to appellants, Caltrans failed to justify the exclusion of the zero-emissions alternatives proposed by several commentors that could have substantially reduced the Project's significant adverse impacts associated with transporting cargo via trucks in such close proximity to residences.
As appellants acknowledge, CEQA places the burden of identifying feasible alternatives for the Project on the lead agency, not on the public. (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 406.) "CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR. Each case must be evaluated on its facts, . . . reviewed in light of the statutory purpose. . . . [A]n EIR for any project subject to CEQA review must consider a reasonable range of alternatives to the project . . . which: (1) offer substantial environmental advantages over the project proposal ([CEQA], § 21002); and (2) may be `feasibly accomplished in a successful manner' considering the economic, environmental, social and technological factors involved. ([CEQA], § 21061.1; Guidelines, § 15364 . . . .)"
The FEIR extensively addressed the alternatives development process Caltrans used, as well as the project alternatives considered together with reasons for withdrawing some alternatives from consideration and selecting the five project alternatives analyzed in the FEIR. As Caltrans explained in its responses to the commentors, the project alternatives selected involved only truck transport of cargo because the purpose of the Project related only to motor vehicles. The basic objective of the Project was limited to improving traffic pathways for vehicles between Terminal Island and area freeways.
Caltrans also explained why the non-truck alternatives were not feasible, as required by CEQA. (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 569.) In the explanation of the need for the Project in the FEIR, Caltrans stated that the Project was only one of several transportation improvement projects to help alleviate freeway system congestion being developed independently by various governmental entities seeking to address the projected doubling of the amount of cargo entering the ports between 2010 and 2020. Caltrans responded further that the implementation of large-scale modern container transportation systems, such as the non-truck rail systems or zero emissions systems mentioned by the commentators, was beyond the scope of an individual project such as the SR-47 Expressway Project and not within Caltrans' authority, control or financial capability. (CEQA, § 21081.5; Citizens of Goleta Valley, supra, at p. 569; Sierra Club v. County of Napa, supra, 121 Cal.App.4th at p. 1503.)
In sum, the record shows that the FEIR identified the alternatives that were considered by Caltrans, as well as those rejected as infeasible, and explained the reasons for its determination of alternatives, as required by CEQA. (Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d at p. 569.) Substantial evidence also shows that Caltrans adequately justified its exclusion of the zero-emissions alternatives proposed by the commentors. CEQA does not require that the FEIR include a feasibility analysis as part of the reasons for rejecting any alternative as infeasible, whether the alternative was considered in the original selection process or presented later in the public comment process. (Sierra Club v. County of Napa, supra, 121 Cal.App.4th at p. 1503; accord, Citizens of Goleta Valley, supra, at p. 569.)
We may overturn Caltrans' approval and certification of the FEIR only if we determine that it constituted a prejudicial abuse of discretion. (CEQA, § 21168.5; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at pp. 426-427, 435.) For each of the claims raised by appellants, we have determined that substantial evidence supports the conclusion that Caltrans complied with CEQA. Caltrans did not abuse its discretion and, therefore, there is no authority to support overturning Caltrans' approval of the FEIR, as appellants contend. (CEQA, § 21168.5.) "`The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. . . .' [Citation.]" (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 393.)
The judgment is affirmed. Respondents are awarded their costs on appeal.
PERLUSS, P. J. and WOODS, J., concurs.
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