In this action, we determine the sufficiency of an environmental impact report (EIR) on the proposed relocation within the City of San Francisco of biomedical research facilities of the School of Pharmacy at the University of California, San Francisco (UCSF).
A neighborhood association challenges the EIR on three primary grounds: (1) that it does not discuss anticipated future activities at the new location and the effects of those activities; (2) that it does not adequately discuss feasible alternatives to the project; and (3) that there is no substantial evidence the project's adverse environmental effects will be mitigated. These challenges are based on the California Environmental Quality Act (CEQA)(Pub. Resources Code, § 21000 et seq.).
Because the EIR is invalid in part, a new EIR must be prepared, submitted for public review and comment, and certified in accord with CEQA procedures. We decline, however, to order UCSF's present activities at the new location stayed pending certification of a new EIR.
Many of the relevant facts in this case are of a detailed, technical nature and are best understood in the context of the legal issues presented. We will set forth those facts in our discussion. The following is the background of the dispute we are asked to resolve:
The UCSF Parnassus campus in San Francisco is the site of the University's Schools of Medicine, Nursing, Pharmacy, and Dentistry. In 1982, the University of California (University) prepared a long range development plan for UCSF, which indicated there were serious space constraints at the Parnassus campus and concluded there was a need to develop off-campus locations for academic and support activities.
To alleviate these space constraints, in February 1985 the Regents of the University of California purchased the Presidio Corporate Center, formerly known as the Fireman's Fund Insurance Building, located in the Laurel Heights neighborhood of San Francisco, approximately two miles northeast of the Parnassus campus. The Laurel Heights neighborhood is a mixture of residential and commercial development. The facility purchased by the Regents is a 10-acre site containing a 354,000 square-foot building (exclusive of parking area) and a 13,000 square-foot annex.
The Regents initially claimed the purchase had no significant environmental effects and was exempt from CEQA's requirement for an EIR because the relocation to Laurel Heights would involve only the acquisition and operation of an existing facility and negligible or no expansion of existing use at that facility. The Regents subsequently decided an EIR was
UCSF prepared a draft EIR, which stated that "The UCSF proposal is to move the School of Pharmacy basic science research units from the UCSF Parnassus campus to Laurel Heights." The draft EIR also indicated that a secondary objective was to consolidate scattered School of Pharmacy facilities into a single building. The draft EIR disclosed that the basic science research units to be relocated included a number of facilities that handled possibly toxic chemicals, possible carcinogens, and radioactive substances; that various substances would be vented from the building into the outside air; that hazardous wastes would be generated; and that harmful exposure to hazardous substances could occur through worker negligence, accidents, or unidentified risks. Potential environmental effects identified in the draft EIR included direct and cumulative effects on air quality caused by laboratory emissions vented into the outside air and effects on human health from exposure to hazardous chemicals. The draft EIR also identified other effects, including noise, traffic congestion, and parking.
The proposed relocation has provoked an intense and continuing controversy in the Laurel Heights neighborhood. The primary dispute is whether scientific research using toxic chemicals, carcinogens, and radioactive materials is too high-risk to be conducted in a residential neighborhood. After a 45-day period for public review of the EIR and comment, the Regents held a public meeting to respond to comments received during the review period. UCSF proposed measures to mitigate the identified environmental effects and prepared a final EIR, concluding that the environmental effects had been "reduced to a level of insignificance." The Regents certified the final EIR.
The Laurel Heights Neighborhood Improvement Association, Inc. (Association) then petitioned for a writ of mandate setting aside the EIR approval. The superior court denied the petition and in a written statement of decision concluded the Regents had certified the EIR in the manner required by law and that their action was supported by substantial evidence. The Association appealed.
The Court of Appeal reversed on three primary grounds. First, it found the EIR did not adequately describe the "project" within the meaning of CEQA because the EIR did not discuss the future cumulative effects of the relocation of additional UCSF operations to the Laurel Heights site. Second, the Court of Appeal found inadequate the EIR's discussion of project
The Court of Appeal denied the Regents' petition for a rehearing and, at the same time, granted the Association's request for attorneys' fees under Code of Civil Procedure section 1021.5 and issued a stay enjoining the Regents from conducting any research at the Laurel Heights facility for 90 days. We then stayed the Court of Appeal's order in its entirety, but subsequently modified our order to prohibit the Regents from introducing radioactive materials to the facility pending further order of this court. We then granted the Regents' petition for review of the Court of Appeal's decision on the merits.
With the exception of the Court of Appeal's award of attorneys fees to the Association, all the substantive issues before us relate to the sufficiency of the final EIR certified by the Regents and the finding that potential environmental effects will be mitigated to a level of insignificance. An understanding of the purposes of EIR's and their role in the protection of California's environmental resources is therefore a necessary foundation for our decision.
Under CEQA, the public is notified that a draft EIR is being prepared (§§ 21092 and 21092.1), and the draft EIR is evaluated in light of comments received. (Guidelines, §§ 15087 and 15088.) The lead agency then prepares a final EIR incorporating comments on the draft EIR and the agency's responses to significant environmental points raised in the review process. (Guidelines, §§ 15090 and 15132, subds. (b)-(d).)
Section 21168.5 provides that a court's inquiry in an action to set aside an agency's decision under CEQA "shall extend only to whether there was a prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence."
This standard of review is consistent with the requirement that the agency's approval of an EIR "shall be supported by substantial evidence in the
A court may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. (Greenebaum v. City of Los Angeles (1984) 153 Cal.App.3d 391, 401-402 [200 Cal.Rptr. 237].) A court's task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. We have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so. Our limited function is consistent with the principle that "The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations." (Bozung, supra, 13 Cal.3d 263, 283.).
With the foregoing precepts to guide us, we turn to the issues at hand.
The EIR's analysis of future activity and effects is inadequate under CEQA.
The EIR before us defined the project as "mov[ing] the School of Pharmacy basic science research units from the UCSF Parnassus campus to Laurel Heights." The building to which those research units are to be moved is approximately 354,000 square feet in size, but only 100,000 square feet are now available to UCSF because one-half of the building is occupied by the California Department of Transportation (CALTRANS) pursuant to a lease with the University that expires in 1990 with an option to extend tenancy until 1995. (A small portion of the building is leased to private tenants.) The EIR does not discuss the additional environmental effects, if any, that will result from UCSF's use of the remaining 254,000 square feet when it becomes available, perhaps as soon as 1990.
The Regents' view is also inconsistent with the related rule that significant cumulative effects of a project must be considered in an EIR. (§ 21083, subd. (b); Guidelines, § 15130, subd. (a); Bozung, supra, 13 Cal.3d at pp. 283-284; Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 624-625 [216 Cal.Rptr. 502].) The Guidelines explain that a discussion of cumulative effects should encompass "past, present, and reasonably anticipated future projects." (Guidelines, § 15130, subd. (b)(1)(A), italics added.)
The correct answer to the question of how to balance these competing concerns is suggested by our opinion in No Oil, supra, 13 Cal.3d 68, in which the plaintiffs contended the trial court had erred in limiting the scope of the project at issue to the drilling of two exploratory oil wells and that the project should have been defined to include commercial oil production that would likely commence if the test wells were successful. The defendants argued that geologic information obtained from the two test wells was essential to the preparation of a meaningful EIR on the effect of future commercial production. (Id., at p. 77, fn. 5.) Because we decided the case on
This standard is consistent with the principle that "environmental considerations do not become submerged by chopping a large project into many little ones — each with a minimal potential impact on the environment — which cumulatively may have disastrous consequences." (Bozung, supra, 13 Cal.3d at pp. 283-284.) The standard also gives due deference to the fact that premature environmental analysis may be meaningless and financially wasteful. Under this standard, the facts of each case will determine whether and to what extent an EIR must analyze future expansion or other action.
The draft EIR acknowledged that UCSF will occupy the entire Laurel Heights facility when the remainder of the space becomes available. In response to public inquiry as to plans for the facility, UCSF explained that it intends to use the facility for the School of Pharmacy's basic science group and UCSF's Office of the Dean. The EIR even estimated the number of faculty, staff, and students that will occupy the facility until 1995 (a total of 460 persons) and then afterward when the entire facility becomes available (860 persons).
The Regents' contention is only that they have not formally decided precisely how they will use the remainder of the building. That argument is
The final EIR contains the following quote from a March 1986 public newsletter by UCSF's Chancellor: "[A]fter consultation with the other schools, it became clear that with this move [i.e., the present project] the best use of the Laurel Heights site we could make, when it becomes fully available to us in 1995, would be to develop it as a biomedical research facility, with cross-disciplinary programs from all the schools." (Italics added.) The same newsletter stated that UCSF had made a "final decision" to move the School of Pharmacy to the Laurel Heights site and that UCSF was then "in the midst of completing an Environmental Impact Report (EIR), which will deal not only with the School of Pharmacy component but the long range use of the building." (Italics added.) The minutes of a May 1986 meeting of UCSF's Laurel Heights Campus Planning Committee state: "There was a concern that the DEIR [draft EIR] did not discuss the program plans and impacts of the building after the Cal-Trans lease expires. Dean Goyan [School of Pharmacy] confirmed that the building will be dedicated primarily to biomedical research. There are no plans for extensive student activities or clinical activities to be located at the site after 1995." (Italics added.)
There is more. In addition to these public disclosures, private correspondence makes clear the University's plan. In a May 1985 letter, the Pharmacy Dean asked the Chancellor for confirmation that the Laurel Heights facility would be committed to basic research. In November 1985, the Chancellor confirmed in writing that "at least 80 percent of the building after total occupancy by UCSF will be devoted to academic units primarily related to biomedical research." (Italics in original.)
In short, there is telling evidence that the University, by the time it prepared the EIR, had either made decisions or formulated reasonably definite proposals as to future uses of the building. At a minimum, it is clear that the future expansion and the general types of future activity at the facility are reasonably foreseeable.
To counter this evidence the Regents argue that only they can approve formal plans as to the building's future use and that statements by the Chancellor, Dean, and other officials are insignificant. We need not delve
We also find the future action will be significant in that it will likely change the scope or nature of the proposed initial project and its environmental effects. The Regents do not contend otherwise, and could not reasonably do so. The anticipated eventual use of the entire Laurel Heights facility would include an increase in the amount of space used from approximately 100,000 square feet to 354,000 square feet and an increase in occupants from approximately 460 to 860. This is obviously a change in the scope of the project and perhaps its nature as well.
We believe the Regents can provide meaningful, reliable data in the EIR as to future activity at Laurel Heights and thus must do so. A factually similar situation was present in Whitman v. Board of Supervisors (1979) 88 Cal.App.3d 397 [151 Cal.Rptr. 866]. An oil company's application for a conditional use permit was granted despite the EIR's failure to discuss the environmental effects of a contemplated pipeline. The court found the EIR to be inadequate and explained that "The record before us reflects that the construction of the pipeline was, from the very beginning, within the contemplation of [the project proponent] should its well prove productive. Although admittedly contingent on the happening of certain occurrences, the pipeline was, nevertheless part of [the] overall plan for the project and could have been discussed in the EIR in at least general terms." (Id., at pp. 414-415 [italics added]; No Oil, Inc. v. City of Los Angeles (1987) 196 Cal.App.3d 223, 233 [242 Cal.Rptr. 37] [requiring general EIR discussion of contemplated pipeline].) The same principle applies here. UCSF should have discussed in the EIR at least the general effects of the reasonably foreseeable future uses of the Laurel Heights facility, the environmental effects of those uses, and the currently anticipated measures for mitigating those effects.
We do not require prophecy. The Regents are not required by our decision to commit themselves to a particular use or to predict precisely what the environmental effects, if any, of future activity will be. Nor do we require discussion in the EIR of specific future action that is merely contemplated or a gleam in a planner's eye. To do so would be inconsistent with the rule that mere feasibility and planning studies do not require an EIR. (Guidelines, § 15262.) A detailed environmental analysis of every precise use that may conceivably occur is not necessary at this stage. (No Oil, Inc. v. City of Los Angeles, supra, 196 Cal. App.3d at pp. 235, 237-238.)
An implicit premise of the Regents' position is that their task will be more difficult if they must consider the environmental effects of less-than-definite future plans. This premise is flawed. We find no authority that exempts an agency from complying with the law, environmental or otherwise, merely because the agency's task may be difficult. If CEQA is unduly burdensome, the solution lies with the Legislature, not with this court.
We hold that the EIR was inadequate because it fails to discuss the anticipated future uses of the Laurel Heights facility and the environmental effects of those uses. We cannot and do not by this opinion prescribe the exact information that the University must include in its EIR. We expect the University will attempt in good faith to fulfill its obligation under CEQA to provide sufficient meaningful information regarding the types of activity and environmental effects that are reasonably foreseeable when the remainder of the Laurel Heights facility is used by UCSF.
The EIR is inadequate under CEQA because the EIR does not contain an adequate description of project alternatives.
The Association contends the EIR's discussion of alternatives to the project is inadequate under CEQA. The Regents' response is twofold: (1) that no discussion of alternatives was required under CEQA in light of the Regents' conclusion that all significant environmental effects would be mitigated to a level of insignificance; and (2) that, in any event, the EIR did
A. Under CEQA, both mitigation measures and project alternatives must be discussed in an EIR.
The foregoing CEQA provisions and Guidelines make clear that "One of its [an EIR's] major functions ... is to ensure that all reasonable alternatives to proposed projects are thoroughly assessed by the responsible official." (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 197 [132 Cal.Rptr. 377, 553 P.2d 537], italics added.)
From this statutory tapestry, the Regents extract the following thread: Section 21002 states that "... public agencies should not approve projects
Even if section 21002 were meant to prescribe the matters that must be contained in an EIR, the section would not be reasonably susceptible to the interpretation urged by the Regents. Their reliance on this isolated use of the word "or" in section 21002 is contrary to the language of CEQA as a whole and to the act's purpose. As noted above, there are numerous CEQA provisions that demonstrate a legislative intent that project alternatives must be considered.
The Regents' view also ignores the chronology of the environmental review process under CEQA. State agencies are required to certify the completion of an EIR "on any project they propose to carry out or approve." (§ 21100.) As a matter of logic, the EIR must be prepared before the decision to approve the project. Not until project approval does the agency determine whether to impose any mitigation measures on the project. (§ 21002.1, subd. (b).) One cannot be certain until then what the exact mitigation measures will be, much less whether and to what degree they will minimize environmental effects. According to the Regents, the decision to require mitigation measures on project approval removes the need to consider project alternatives in the EIR. The decision imposing mitigation measures, however, is not made, and cannot be made under
The Regents cite only one court decision in support of their position, Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal.App.3d 515 [147 Cal.Rptr. 842] (hereafter Laurel Hills). That decision does not support the Regents. In Laurel Hills, a real estate owner and developer sought approval of a 124-single-family-unit residential subdivision. The City of Los Angeles prepared an EIR that discussed the project's environmental effects, mitigation measures, and eight alternatives to the project. The city concluded in the EIR that one of them, a 63-unit cluster alternative, was environmentally superior to the project as proposed. The city also found the proposed project would have some adverse environmental effects even after the imposition of certain mitigation measures but approved the project as mitigated despite those effects. The city, however, made no factual findings as to the feasibility of the admittedly superior cluster alternative identified in the EIR. A homeowners association challenged the approval, arguing that a finding regarding the feasibility of that alternative was mandatory under CEQA.
As is apparent from the stated facts, the question in Laurel Hills was not whether alternatives had to be discussed in the EIR. Eight alternatives were discussed, and the Laurel Hills court made clear that "It is true that an EIR must identify both feasible mitigation measures and feasible project alternatives" and referred to their "joint inclusion" in an EIR. (83 Cal. App.3d at pp. 520-521, italics added.) The court found that CEQA does not require the responsible agency to choose the environmentally best alternative identified in an EIR and stated that, if mitigation measures will avoid damage to the environment, "... there is no need to resort to a consideration of the feasibility of environmentally superior project alternatives identified in the environmental impact report." (Id., at p. 521, italics added.) The Laurel Hills court dealt only with an agency's decision with regard to alternatives adequately discussed in the first instance in an EIR. The court found a particular decision, the choice of the best alternative, was not required. The court's opinion, however, made clear that for the agency to make an informed decision on project approval, the EIR must meaningfully discuss alternatives. Laurel Hills was thus consistent with CEQA's fundamental goal of fostering informed decision making. Laurel Hills does not support
Finally, we note that alternatives and mitigation measures have the same function — diminishing or avoiding adverse environmental effects. The chief goal of CEQA is mitigation or avoidance of environmental harm. To argue that only mitigation measures need be discussed overlooks the fact that alternatives are a type of mitigation.
B. The purported discussion in the EIR of project alternatives was inadequate.
We agree with the Court of Appeal's observation on this point: "Here the Regents simply referred to other facilities, designated as dots on a map of San Francisco, with no discussion of their size or available space, and with a complete lack of data to provide a factual informational underpinning for the conclusory statement that no other site had adequate space. It is impossible to analyze meaningfully the report's conclusion that Laurel Heights is the only available facility of sufficient size. There is no assessment of the capabilities of existing sites to be expanded or remodeled with a less
Even if the Regents are correct in their conclusion that there are no feasible alternatives to the Laurel Heights site, the EIR is nonetheless defective under CEQA. As we stated in a context similar to CEQA, there must be a disclosure of the "analytic route the ... agency traveled from evidence to action." (Topanga Assn. for a Scenic Community v. County of Los Angeles, supra, 11 Cal.3d 506, 515 [construing requirements of Gov. Code, § 65906 for zoning variances]; see also Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal.App.3d 433, 441 [243 Cal.Rptr. 727] [construing § 21081 findings pursuant to an EIR].) The EIR prepared by UCSF contains no analysis of any alternative locations. An EIR's discussion of alternatives must contain analysis sufficient to allow informed decision making. (San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 751 [202 Cal.Rptr. 423].)
The Regents argue that alternatives had already been considered and found to be infeasible during the University's various internal planning processes and that an EIR need not discuss a clearly infeasible project alternative. The Regents apparently believe that, because they and UCSF were already fully informed as to the alleged infeasibility of alternatives, there was no need to discuss them in the EIR.
The Regents miss the critical point that the public must be equally informed. Without meaningful analysis of alternatives in the EIR, neither the courts nor the public can fulfill their proper roles in the CEQA process. We do not impugn the integrity of the Regents, but neither can we countenance a result that would require blind trust by the public, especially in light of CEQA's fundamental goal that the public be fully informed as to the environmental consequences of action by their public officials. "To facilitate CEQA's informational role, the EIR must contain facts and analysis, not just the agency's bare conclusions or opinions." (Concerned Citizens of
If the Regents considered various alternatives and found them to be infeasible, we assume, absent evidence to the contrary, that they had good reasons for doing so. Those alternatives and the reasons they were rejected, however, must be discussed in the EIR in sufficient detail to enable meaningful participation and criticism by the public.
The Regents' view is also contrary to CEQA's repeated references to the requirement that alternatives be discussed in an EIR. (See discussion at pp. 400-403, ante.) This requirement is not stated to be contingent on a showing by another party that there are feasible alternatives. Under the Regents' view, a project proponent would never have to discuss alternatives. It would merely respond to alternatives proposed by others. There is not even a hint in CEQA that the Legislature intended such a result.
The Regents contend this is a distinction without a difference. We disagree. As we have explained, numerous CEQA provisions require that an EIR adequately describe feasible alternatives. Nowhere in CEQA, however, is there a provision that this duty is conditional on a project opponent coming forward with a documented alternative. The Regents view also blinks at common sense. We can reasonably assume a project proponent knows as much or more about its project and the feasibility of various alternatives (or, conversely, why alternatives are not feasible) than anyone else, including possible project opponents. It was therefore entirely realistic that the Legislature required that alternatives be discussed in an EIR. "CEQA requires that governmental agencies consider reasonable alternatives. It is not limited to alternatives proposed and justified by objectors [to an EIR]." (Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1178 [243 Cal.Rptr. 339].)
We hold the discussion in the EIR of project alternatives is legally inadequate under CEQA. UCSF must explain in meaningful detail in a new EIR a range of alternatives to the proposed project and, if UCSF finds them to be infeasible, the reasons and facts that UCSF claims support its conclusion.
Because a new EIR is required, we believe it necessary to provide brief guidance to the parties as to the level of analysis of alternatives that must be included. As we have already explained, the analysis must be specific enough to permit informed decision making and public participation. The latter function is especially important when, as in this case, the agency approving the proposed project is also its proponent or closely related to its proponent. The need for thorough discussion and analysis is not to be construed unreasonably, however, to serve as an easy way of defeating projects. "Absolute perfection is not required; what is required is the production of information sufficient to permit a reasonable choice of alternatives so far as environmental aspects are concerned.... [¶] When the alternatives have been set forth in this manner, an EIR does not become
There is substantial evidence to support the Regents' finding that the potential environmental effects of the project, as it is now defined in the EIR, will be mitigated.
In certifying the final EIR and approving the project, the Regents found that "changes and alterations have been required in or incorporated into the project which substantially mitigate all the significant effects as identified in the Final EIR." This finding was required by law. (§ 21081; Guidelines, § 15091, subd. (a).)
As we have explained, a court's proper role in reviewing a challenged EIR is not to determine whether the EIR's ultimate conclusions are correct but only whether they are supported by substantial evidence and whether the EIR is sufficient as an informational document. (See discussion at pp. 392-393, ante.) The Association, however, invites us to disregard this limitation on our review by weighing competing technical data and arguments. The Association relies on evidence in the record that the Association claims supports conclusions contrary to those reached by the Regents. The question, however, is not whether there is substantial evidence to support the Association's position; the question is only whether there is substantial evidence to support the Regents' conclusion.
Although we decline to engage in the type of balancing review sought by the Association, we will explain our conclusion that, in light of the entire record, there was substantial evidence to support the Regents' finding of mitigation.
A. The Regents' Evidence
We begin with the four primary types of evidence on which the Regents rely.
1. Studies at the Parnassus Campus
As the trial court properly noted, the relocation to Laurel Heights is unlike the usual CEQA case, in which the concerns are over the potential environmental effects of a new project. The Regents propose to relocate the existing Parnassus operations to another location only two miles away. The Parnassus campus research facility has been in operation for many years.
The Court of Appeal found the studies wanting in various particulars. For example, the Court of Appeal noted that these studies were of soil and vegetation and faulted them for not explaining why examination at ground
The Court of Appeal in effect performed its own scientific critique of the studies and found the Regents should not have relied on them. This approach is inconsistent with the principle that "The court does not have the duty of passing on the validity of the conclusions expressed in the EIR, but only on the sufficiency of the report as an informative document." (Environmental Defense Fund v. Coastside County Water Dist. (1972) 27 Cal.App.3d 695, 705 [104 Cal.Rptr. 197], italics in original.)
We commend the Court of Appeal's thoroughness in reviewing the two studies and the other evidence offered by the Regents in support of their finding of mitigation. As we have explained, such scrutiny is necessary under CEQA. The relevant point, however, is not that the two studies might be lacking in certain particulars or that the studies may not conclusively demonstrate a lack of environmental effect at the Parnassus campus or, inferentially, at Laurel Heights. Stated differently, the issue is not whether the studies are irrefutable or whether they could have been better.
2. Absence of Evidence of Health Hazards
The Regents represented in the final EIR that they were unable to locate any evidence that the expected laboratory emissions at Laurel Heights have ever been identified as a public health hazard. The Regents explained that they had contacted numerous organizations and scientists to obtain information on emissions from fume hoods, the type of devices that would be used at Laurel Heights to vent laboratory substances into the outside air. The final EIR identified the persons contacted and stated that "The discussions with agencies and scientists did not result in any published literature on the subject of airborne emissions from fume exhaust.... [¶] [T]he question of emissions from a fume hood or laboratory has not been the subject of funding or study."
Although the Association does not squarely contest the Regents' representation as to an absence of scientific studies, the Association does so indirectly by citing references in the EIR to "toxic chemicals," "air pollutants," and "hazardous substances." For example, the Association relies on the EIR's statement that "Some of the chemicals that may be vented through the fume hood exhaust stacks are known to be toxic at certain levels of concentration." That the chemicals may be toxic at certain levels and under certain circumstances, however, does not mean that the chemicals will be toxic in the levels at which they may be emitted from the fume hoods into the outside air. As noted earlier, the Regents were unable to obtain any scientific information that laboratory fume hood emissions have been shown to be harmful.
3. Absence of Regulation
The Court of Appeal rejected the Regents' reliance on the absence of regulation, reasoning that such reliance would be similar to an illogical assertion that asbestos was not harmful before its regulation. We agree that the absence of regulation did not mean asbestos was in fact formerly safe, nor, without a showing that the responsible regulatory authorities had considered the question and affirmatively decided not to regulate, was the absence of regulation even evidence that asbestos was not harmful. But this does not mean the absence of regulation would have been entirely irrelevant to the question of the adequacy of any measures proposed to mitigate the effects of using asbestos.
The Guidelines provide that "If an emission ... meets the existing standard for a particular pollutant, the lead agency may presume that the emission or discharge of the pollutant will not be a significant effect on the environment." (Guidelines, § 15064, subd. (i).) This presumption does not come into play here, but the absence of any standard does indicate that the project cannnot be faulted for not limiting emissions to a prescribed level. An agency cannot be expected to predict the future course of governmental
We do not suggest that an absence of regulation is sufficient to show either that there will be no harmful effects or that they will be mitigated. Many harmful substances were used long before they were regulated. The absence of regulation is, however, a factor that can reasonably be considered in the EIR process. In this case, the absence of regulation was not proof of the correctness of the Regents' finding that there would be no significant effect on air quality, but the absence of regulation was relevant to the Regents' finding that they had taken all feasible steps to mitigate such effects in light of current scientific knowledge.
4. Regents' Commitment to Monitor
The Regents have committed UCSF to perform baseline and periodic monitoring of ambient air quality at Laurel Heights to determine if UCSF's research activities have any significant effect on air quality.
B. The Association's Primary Objections
We turn now to the primary objections raised by the Association and relied on by the Court of Appeal. By noting the Association's concerns,
1. Quantities of Future Emissions
2. Exact Substances
3. Effects of Emissions
The preceding three contentions by the Association (quantities, nature, and effect of emissions) are all based on the Association's reliance on so-called disclosures in the EIR that toxic chemicals will be used.
4. Dispersion Effect
In response to public comment on this section of the draft EIR, UCSF provided considerable further specific information, including detailed charts in the final EIR, regarding prevailing wind characteristics and mean temperatures at the Laurel Heights facility. The Court of Appeal, however, faulted the EIR for not being specific enough, citing as examples the study evaluating the estimated efficacy of wind dispersal, the lack of discussion of wind patterns caused by surrounding buildings, and the lack of discussion of the effect of calm days. We disagree that such information was necessary: (1) A project opponent or reviewing court can always imagine some additional study or analysis that might provide helpful information. It is not for them to design the EIR. That further study of wind dispersal might be helpful does not make it necessary. (2) There is no significant evidence in the record that surrounding buildings create any significant local wind
In short, we find the treatment of wind dispersal was adequate.
5. Absence of Regulation
6. Evidence of Mitigation
The Court of Appeal faulted the Regents' conclusion in two other specific respects. First, the EIR stated that high efficiency particulate air (HEPA) filters are required for certain regulated carcinogens but did not identify these carcinogens and did not represent that the HEPA A filters will in fact be used. We find these omissions insignificant. Little would be served by having UCSF promise in the EIR that it will comply with the law. Compliance can be reasonably presumed. Perhaps it would have been helpful if the specific carcinogens had been listed, but we again emphasize that the evidence must be considered as a whole.
Second, the Court of Appeal found the final EIR should have explained why all fume hood exhaust stacks will not be equipped with filters and scrubbers. The factual premise for this conclusion is a reference in the EIR to a regulatory requirement that HEPA and chemical absorbent filters be used for regulated carcinogens. We disagree that a more complete discussion of filters and scrubbers was required. The Association relies on section 15126, subdivision (c) of the Guidelines, which states, "The discussion of
C. Effects Other Than Emissions
Although the effect of emissions into the outside air is the central concern raised by the Association, it also challenges the finding of mitigation as to several other potential environmental effects of the relocation. The most significant challenges relate to traffic congestion and parking, noise, and the handling of hazardous wastes. We address these concerns in turn.
1. Traffic and Parking Effects
The draft EIR dealt at length with the potential effects of traffic and parking. The discussion of these effects occupied 42 pages of a report of 211 pages (not including notes and appendices) and included explanation of numerous traffic and parking studies. Any fair reading of the EIR demonstrates that UCSF and the Regents gave careful consideration to traffic and parking and that the effects, if any, will be mitigated. For example, the EIR cites studies projecting a 20 percent decrease in average daily traffic from the time the facility was used as a corporate headquarters to its present use by UCSF and explains that adjacent intersections will remain at "virtually identical levels of service." The anticipated occupancy when UCSF occupies the entire building (after the CALTRANS lease expires) will be similar to that when Fireman's Fund was present, and it appears that traffic will not appreciably increase even then as a result of UCSF's occupancy. The EIR cited studies showing that anticipated traffic at the site and nearby
The discussion of parking also fails to show any significant defects. UCSF estimated that without mitigation measures 507 on-site parking spaces will be available. After mitigation measures (new spaces and restriping), there will be 547 spaces. UCSF estimated a need for 576 on-site spaces and acknowledged a deficit of 29 spaces. To eliminate this deficit, UCSF promised "to promote ongoing campus transportation systems, management programs, including promotion of transit, carpooling, vanpooling, and related activities...." On these facts, we believe the discussion of mitigation was adequate.
2. Noise Effects
3. Handling of Radioactive Substances
The Association complains of the EIR's treatment of the handling of hazardous waste material, particularly radioactive waste.
The Association's primary challenge as to radioactive materials is based on prior difficulties UCSF has had in complying with regulations governing the handling of such materials.
The present EIR can be fairly read as a firm commitment by UCSF to comply with sound practices, which are detailed in the EIR. In consideration of that commitment and the other factors discussed above, we conclude that, on balance, there is substantial evidence to support the finding of mitigation of handling of radioactive wastes at Laurel Heights.
The Association also contends that, according to state inspectors and UCSF documents, significant amounts of radioactive particles are emitted into the air during laboratory operations. This assertion is a gross misstatement of the record. In March 1985, the State Department of Health Services inquired by letter as to a provision of UCSF's safety manual that prohibits radiation discharge via the ventilation exhaust system and asked how this would be accomplished "during laboratory operations where a significant portion of the radioactive material may become airborne." (Italics
Such monitoring did in fact take place and it suggests the Association's fears as well as its assertions regarding radioactivity are greatly exaggerated. The final EIR states, "To ascertain the potential for any radioactive materials to enter the atmosphere and be deposited around the campus, the UCSF Office of Environmental Health and Safety in June 1986, conducted an analysis of seven locations upwind and downwind of the [Parnassus] campus to survey for gross gamma, hydrogen-3 and carbon-14.... [¶] The University concluded from these tests that there is little if any discernible difference between testing for radioactive materials or chemical materials resulting from fume hood exhaust at the UC San Francisco Parnassus campus when measured upwind or downwind of the campus."
It also appears from the record that very low levels of radiation are used in the laboratories that will be transferred to Laurel Heights. For example, the Inter-Campus Program, which the Association challenges in particular, uses only minute quantities of radioactive substances, measured in microcuries (millionths of a curie) per use, or millicuries (thousandths of a curie) per year. By contrast, many major hospitals, such as Moffett Hospital on the UCSF campus, are licensed to use as many as tens of curies per year of the same substances — thousands of times the amount used in Inter-Campus Program research.
In light of the evidence we have discussed and the record as a whole, we find substantial evidence to support the Regents' finding of mitigation as to the use of radioactive substances.
D. Conclusions as to Mitigation Finding
Our holding as to mitigation does not apply to additional environmental effects that may be identified when a new EIR is prepared in accordance with our holdings that the project is not properly defined and that alternatives are not adequately discussed. To the extent that different or additional effects (or the magnitude of such effects) are identified when the project is properly defined in the new EIR, the Regents must comply with CEQA by sufficiently identifying in the new EIR measures to mitigate those effects and by making the required finding or findings as to mitigation. (§ 21081; Guidelines, § 15091, subd. (a).) The mitigation discussion in the present EIR of effects already identified is sufficient, however, and need not be revised in the new EIR.
UCSF may continue its present activities at Laurel Heights pending certification of an adequate EIR.
As originally enacted, CEQA did not prescribe the action that a court should take if it found that CEQA had been violated. In 1984, section 21168.9 was enacted. We must construe this statute for the first time.
Because CEQA does not require us to enjoin the present activity, we rely on traditional equitable principles in deciding whether injunctive relief is appropriate. We find guidance in recent decisions of the United States Supreme Court in cases arising under federal environmental statutes. In Weinberger v. Romero-Barcelo (1982) 456 U.S. 305 [72 L.Ed.2d 91, 102 S.Ct. 1798], the United States Navy had been found by a federal district court to be in violation of the Federal Water Pollution Control Act (FWPCA) because the Navy had not obtained a National Pollutant Discharge Elimination System permit for weapons training during which naval ordnance fell into the sea off the Puerto Rico coast. The district court ordered the Navy to apply for the required permit but allowed the Navy to continue its activities while seeking the permit. The Court of Appeals found that FWPCA withdrew the courts' equitable discretion and required an injunction of all activities until the Navy obtained the permit. The high court disagreed and reasoned that traditional equitable principles govern the decision of whether to enjoin activity that violates the FWPCA.
The court rejected the argument that failure to enjoin the Navy would undermine the integrity of the permit process by allowing the statutory violation to continue. The court explained that, "The integrity of the Nation's waters ... not the permit process, is the purpose of the FWPCA." (456 U.S. at p. 314 [72 L.Ed.2d at p. 100, 102 S.Ct. at p. 1804].) The court recognized that compliance with the permit requirements achieves the purpose of protecting water resources but explained that such purpose would not be undercut by allowing the Navy to continue because it had been ordered to obtain the permit and because the activity had not polluted the water. (456 U.S. at p. 315 [72 L.Ed.2d at p. 100, 102 S.Ct. pp. 1804-1805].)
As in Romero-Barcelo, there is no evidence the environment is being adversely affected by the present activities. We have expressly found there is substantial evidence of mitigation of the potential effects of the present activities identified in the present EIR. The defects in the EIR relate only to future activity, which the EIR failed to address, and to feasible alternatives.
UCSF and the general public might be unduly prejudiced if we were to enjoin the present activities. Requiring the University to cease existing laboratory operations at the Laurel Heights facility and to move them to other sites would cause unnecessary cost that would ultimately be borne by the taxpayers. More important, such an order would seriously disrupt ongoing scientific research and perhaps cause the University to lose important faculty members and research funds. UCSF's research is designed to improve the state of medical knowledge and thus improve and even save lives. We are especially reluctant to interfere unnecessarily with such a salutary enterprise.
Having duly considered the equities, we hold that UCSF may continue operations that have already begun at Laurel Heights as of the date this opinion is filed but that UCSF may not expand existing operations at Laurel Heights or begin additional operations there, whether or not identified in the present EIR, until a new EIR is certified and the project reapproved by
One additional point merits brief discussion to guide the Regents in their future efforts to comply with CEQA. We emphasize that neither the present activity we are allowing to continue nor any prior UCSF activities involving Laurel Heights (including planning for the relocation) can serve as a proper basis for rejecting feasible alternatives to the Laurel Heights site. We shall not countenance any attempt to reject an alternative on the ground that the Laurel Heights site has already been purchased or that activities there have already commenced. The Regents must begin anew the analytical process required under CEQA. We will not accept post hoc rationalizations for actions already taken, particularly in light of the fact that those activities were begun in violation of CEQA, even if done so in good faith. To do so would tarnish the integrity of the decisionmaking process required by CEQA. Stated differently, the Regents have begun the relocation despite their failure to comply with CEQA in the first instance. It would be untenable for them to rely on the result of their own noncompliance as a basis for determining their future action.
The Court of Appeal was not required to remand to the trial court for initial determination the question of whether the Association is entitled to attorneys fees under Code of Civil Procedure section 1021.5.
After issuing its decision on the merits, the Court of Appeal granted the Association's motion for an award of attorneys fees under Code of Civil Procedure section 1021.5 and remanded the matter to the trial court for the
The Regents do not contend that the Court of Appeal lacked jurisdiction or that it abused its discretion. They argue only that the normal procedure when a judgment is reversed on appeal is for the appellate court to remand the fee question under section 1021.5 to the trial court.
Our recent decision in Harbor v. Deukmejian (1987) 43 Cal.3d 1078 [240 Cal.Rptr. 569, 742 P.2d 1290] is illustrative. A petition for a writ of mandate was originally filed in the Court of Appeal and denied by that court. We granted review and affirmed the denial. For present purposes, our functional role in that case was analogous to that of the Court of Appeal, whose role was analogous to that of a trial court. We granted the petitioners' request for attorneys fees under section 1021.5 and remanded to the Court of Appeal to determine the amount of fees.
The Regents' reliance on our decision in Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Cal.3d 917 is misplaced. The Regents correctly point out that we did remand to the trial court for the initial determination as to whether fees should be awarded, but the Regents overlook the key fact that the trial court had denied the plaintiff's motion for fees before the
We agree with the reasoning in Wilkerson v. City of Placentia (1981) 118 Cal.App.3d 435 [173 Cal.Rptr. 294], in which the Court of Appeal awarded fees under section 1021.5 and remanded to the trial court only for a determination as to the amount of fees. The court appropriately noted that "where the entire basis for the decision is what we have done in this opinion, we should make the decision that it qualifies as a case for granting of fees." (Id., at p. 445.) Likewise here, it was the Court of Appeal's decision, not the trial court's, which provided a basis for fees in the first instance.
We hold that a Court of Appeal is not required to remand to the trial court the question of whether to award fees under section 1021.5. The decision as to which court is better equipped to make the initial determination is a matter within the discretion of the Court of Appeal. We find no abuse of that discretion in this case.
For the reasons discussed above, we affirm the Court of Appeal's decision that the EIR should have addressed anticipated future uses and their environmental effects and that the discussion of project alternatives is inadequate under CEQA. We also affirm the Court of Appeal's decision that the Association is entitled to its attorneys fees under section 1021.5. We reverse the Court of Appeal's decision that the Regents' finding as to mitigation is inadequate.
Pending the Regents' certification of a proper EIR and reapproval of the project, the Court of Appeal is directed to allow UCSF to continue operations that have already begun at Laurel Heights as of the date this opinion is filed to the extent those activities are described in the present EIR, but not to allow UCSF to expand existing operations at Laurel Heights or begin additional operations there until a proper EIR is certified.
Our order dated August 12, 1987, prohibiting use of radioactive materials is modified as set forth in footnote 25 of this opinion. (See p. 425, ante.)
Pursuant to Public Resources Code section 21168.9, subdivision (b), the Court of Appeal shall order the trial court to retain jurisdiction over this action and to specify promptly, after notice and hearing, a date by which the Regents must certify a new EIR in accordance with CEQA standards and procedures, including provisions for public comment, and to make any findings that may be required by CEQA.
Lucas, C.J., Mosk, J., Broussard, J., Panelli, J., Arguelles, J., and Kaufman, J., concurred.
Appellant's petition for rehearing was denied January 26, 1989, and the opinion was modified to read as printed above.