SIERRA WATCH v. COUNTY OF PLACER

No. C088130.

69 Cal.App.5th 86 (2021)

SIERRA WATCH, Plaintiff and Appellant, v. COUNTY OF PLACER et al., Defendants and Respondents; SQUAW VALLEY REAL ESTATE, LLC, Real Party in Interest and Respondent.

Court of Appeals of California, Third District, Placer.

August 24, 2021.


Attorney(s) appearing for the Case

Shute, Mihaly & Weinberger, Amy J. Bricker , Laura D. Beaton , Rachel B. Hooper and Daniel P. Selmi for Plaintiff and Appellant.

Karin E. Schwab , County Counsel, and Clayton T. Cook , Deputy County Counsel, for Defendants and Respondents.

Remy Moose Manley, Whitman F. Manley , Andrea K. Leisy and Nathan O. George for Real Party in Interest and Respondent.


[CERTIFIED FOR PARTIAL PUBLICATION*]

OPINION

In 2016, Placer County (the County) approved a project to develop a resort on about 94 acres in Olympic Valley—the site of the 1960 Winter Olympics. Sierra Watch afterward challenged the County's approval in two lawsuits, both of which are now on appeal. In one of its suits, it alleged the County approved the project in violation of the Ralph M. Brown Act (Brown Act; Gov. Code, § 54950 et seq.)—an act intended to facilitate public participation in local government decisions. In another, it alleged the County's environmental review of the project was inadequate.

This appeal concerns Sierra Watch's challenge to the County's environmental review for the project under the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.). CEQA generally requires public agencies, like the County, to consider the environmental consequences of discretionary projects they propose to approve. Per that requirement, the County considered the potential environmental impacts of the proposed development in Olympic Valley before it approved it. But in Sierra Watch's view, the County's analysis fell short. In particular, Sierra Watch maintains, the County (1) failed to sufficiently consider Lake Tahoe in its analysis, (2) insufficiently evaluated the project's impacts on fire evacuation plans for the region, (3) inadequately evaluated and mitigated the project's noise impacts, (4) failed to allow for sufficient public review of the project's climate change impacts, (5) failed to consider appropriate mitigation for the project's climate change impacts, (6) overlooked feasible mitigation options for the project's traffic impacts, and (7) wrongly relied on deferred mitigation to address the project's impacts on regional transit.

The trial court rejected all Sierra Watch's arguments. But because we find some of Sierra Watch's claims have merit, we reverse.

BACKGROUND

In 1983, the County adopted the Squaw Valley General Plan and Land Use Ordinance to "guide development and growth within the [Olympic] Valley area" (formerly known as Squaw Valley)—a 4,700-acre area that lies a few miles northwest of Lake Tahoe in the Sierra Nevada. Three decades later, in 2011, Squaw Valley Real Estate, LLC (Squaw), proposed the first specific plan under that general plan, which it called the Village at Squaw Valley Specific Plan.

In 2012, the County began environmental review for the proposed project under CEQA, and three years later, the County released a draft document, called a draft environmental impact report or draft EIR, analyzing the project's potential impacts. As described in the draft EIR, the proposed project would include two components: an 85-acre parcel called "the Village" —which would include, among other things, up to 850 lodging units, almost 300,000 square feet of commercial space, and over 3,000 parking spaces—and an 8.8-acre parcel called "the East Parcel"—which, for the most part, would serve to house up to 300 employees for the project. These two components, the draft EIR explained, would be built over 25 years.

After the County circulated the draft EIR, various individuals, organizations, and governmental bodies commented on the project. Sierra Watch was one of the commenters. According to Sierra Watch, the draft EIR's review of the project's potential environmental impacts was inadequate for several reasons. Among other things, Sierra Watch alleged that the draft EIR failed to sufficiently consider Lake Tahoe in its discussion of the environmental setting for the project and failed to adequately discuss and mitigate the project's impacts on fire evacuation plans for the region, noise levels, climate change, and traffic levels.

In 2016, the County issued the final EIR for the project, which included responses to the comments on the draft EIR. Months later, after receiving additional comments on the final EIR, the County provided additional post-EIR responses about the project. Six days after sharing these additional responses, the County's board of supervisors heard from project opponents and supporters at a public hearing and, at the close of the hearing, the board certified the EIR and approved the project. As part of the approval, the board acknowledged that the project would have some unavoidable significant environmental impacts but found these impacts would be outweighed by the project's benefits. (See Cal. Code Regs., tit. 14, § 15092, subd. (b)(2)(B).)1

A month after the board approved the project, Sierra Watch filed a petition for writ of mandate and complaint, alleging the County and its board had violated CEQA. Raising largely the same issues it raised in its comment letter, Sierra Watch alleged, among other things, that the County failed to sufficiently consider Lake Tahoe in its discussion of the environmental setting and failed to adequately discuss and mitigate the project's impacts on regional fire evacuation plans, noise levels, climate change, and transportation.

Following a hearing, the trial court rejected all Sierra Watch's claims. The court afterward entered a judgment denying Sierra Watch's petition for writ of mandate and complaint.

Sierra Watch timely appealed.2

DISCUSSION

I

CEQA Background

CEQA serves "to ensure that public agencies will consider the environmental consequences of discretionary projects they propose to carry out or approve." (Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 488 [106 Cal.Rptr.3d 858, 227 P.3d 416].) To that end, absent an exemption, an agency proposing to carry out or approve a project generally must conduct an initial study to determine "if the project may have a significant effect on the environment." (CEQA Guidelines, § 15063, subd. (a).)

Depending on the initial study's findings, the agency must then prepare either an EIR, a mitigated negative declaration, or a negative declaration. If "there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment," the agency need only prepare a negative declaration that "briefly describ[es] the reasons that a proposed project ... will not have a significant effect on the environment." (CEQA Guidelines, §§ 15063, subd. (b)(2), 15371.) If substantial evidence shows the project may in fact have a significant environmental effect, but the project applicant agrees to changes that would avoid or mitigate them, then the agency may instead prepare a mitigated negative declaration. (CEQA Guidelines, § 15070, subd. (b).) And if substantial evidence shows the project may have a significant environmental effect and a mitigated negative declaration is inappropriate, as is true in this case, then the agency must prepare an EIR providing detailed information about the project's potential environmental impacts. (Pub. Resources Code, §§ 21100 [state agency requirements], 21151 [local agency requirements], 21061 [defining an EIR].)

An EIR, as courts have often said, is "`"the heart of CEQA."'" (Cleveland National Forest Foundation v. San Diego Assn. of Governments (2017) 3 Cal.5th 497, 511 [220 Cal.Rptr.3d 294, 397 P.3d 989].) It serves to "(1) inform the government and public about a proposed activity's potential environmental impacts; (2) identify ways to reduce, or avoid, those impacts; (3) require project changes through alternatives or mitigation measures when feasible; and (4) disclose the government's rationale for approving a project." (Protecting Our Water & Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, 488 [268 Cal.Rptr.3d 148, 472 P.3d 459].) To fulfill these purposes, an "EIR `must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.'" (Cleveland National Forest Foundation, at p. 511.) But that does not mean an EIR must be exhaustive on all topics. Courts look "`not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.' [Citation.]" (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1175 [77 Cal.Rptr.3d 578, 184 P.3d 709].)

In reviewing an agency's compliance with CEQA, courts review for abuse of discretion. (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 512 [241 Cal.Rptr.3d 508, 431 P.3d 1151] (Sierra Club).) Courts will find an agency abused its discretion if it either failed to proceed in a manner required by law or reached a decision not supported by substantial evidence. (Ibid.) "`Judicial review of these two types of error differs significantly: While we determine de novo whether the agency has employed the correct procedures, "scrupulously enforc[ing] all legislatively mandated CEQA requirements" [citation], we accord greater deference to the agency's substantive factual conclusions. In reviewing for substantial evidence, the reviewing 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," for, on factual questions, our task "is not to weigh conflicting evidence and determine who has the better argument." [Citation.]' [Citation.]" (Ibid.)

This distinction between de novo review and substantial evidence review is often straightforward. A contention that an agency has, for example, provided an insufficient amount of time for public comment is subject to de novo review. And a contention that an agency's factual findings are wrong, as a different example, is subject to substantial evidence review. But questions about the relevant standard of review are not always so clear. "This is especially so when the issue is whether an EIR's discussion of environmental impacts is adequate, that is, whether the discussion sufficiently performs the function of facilitating `informed agency decisionmaking and informed public participation.' [Citation.]" (Sierra Club, supra, 6 Cal.5th at p. 513.) Those types of "inquir[ies] present[] a mixed question of law and fact" and are "generally subject to independent review." (Id. at p. 516; see id. at p. 514 ["whether a description of an environmental impact is insufficient because it lacks analysis or omits the magnitude of the impact is not a substantial evidence question"].) But if "factual questions predominate, a more deferential standard is warranted." (Id. at p. 516.)

With those principles in mind, we turn to Sierra Watch's arguments.

II

The Lake Tahoe Basin

A. Description of the Environmental Setting

Sierra Watch's first argument concerns the EIR's discussion of the project's "environmental setting."

An agency must, in its EIR, "include a description of the physical environmental conditions in the vicinity of the project," which is referred to as the project's "environmental setting." (CEQA Guidelines, § 15125, subd. (a).) This description of the environmental setting often focuses on the existing environmental conditions in the immediate vicinity of the project. But because "[k]nowledge of the regional setting is critical to the assessment of environmental impacts," this description should also place "[s]pecial emphasis ... on environmental resources that are rare or unique to that region and would be affected by the project." (CEQA Guidelines, § 15125, subd. (c).) The agency must normally then use this description of the existing environmental setting as the "baseline against which predicted effects [of the project] can be described and quantified." (Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 447 [160 Cal.Rptr.3d 1, 304 P.3d 499] (plur. opn.); see CEQA Guidelines, § 15125, subd. (a) ["This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant."].)

In Sierra Watch's view, the EIR's discussion of the environmental setting was inadequate because it failed to "meaningfully address[] the [Lake] Tahoe Basin." In particular, Sierra Watch alleges, "the chapters on water quality and air quality setting, where readers would expect this information, barely touch on the subject." We agree in part.

1. Lake Tahoe and the EIR's Discussion of Water Quality

We start with the EIR's discussion of Lake Tahoe and water quality. All parties appear to accept that Lake Tahoe is a unique and significant environmental resource that would be affected by the project. It is, as the United States Supreme Court has noted, "`uniquely beautiful'" and a "`"national treasure"'" famous for its water's "exceptional clarity." (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (2002) 535 U.S. 302, 307 [152 L.Ed.2d 517, 122 S.Ct. 1465].) It is also, as all parties here acknowledge, a resource that would be affected by traffic generated by the project—though the parties disagree on the extent of that effect. Because of these considerations, the CEQA Guidelines instruct, the County should have placed "[s]pecial emphasis" on Lake Tahoe in its discussion of the environmental setting. (CEQA Guidelines, § 15125, subd. (c) ["Special emphasis should be placed on environmental resources that are rare or unique to that region and would be affected by the project."].)

But, as Sierra Watch argues, the County's EIR never meaningfully discussed Lake Tahoe in its description of the environmental setting. In its discussion of the environmental setting for "Hydrology and Water Quality," the draft EIR offered only one parenthetical reference to Lake Tahoe, stating: "The plan area is located within the low elevation portion of the approximately eight square mile Squaw Creek watershed, a tributary to the middle reach of the Truckee River (downstream of Lake Tahoe)." Nowhere in this sentence, or elsewhere, did the draft EIR discuss the importance of Lake Tahoe, its characteristics, or its current condition.

After Sierra Watch commented about the draft EIR's "fail[ure] to adequately describe the Tahoe regional setting," the final EIR, in response, directed Sierra Watch to "[s]ee the Master Response regarding TRPA Thresholds." TRPA is the Tahoe Regional Planning Agency and is "the agency assigned `to coordinate and regulate development in the [Lake Tahoe] Basin and to conserve its natural resources.' [Citation.]" (Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, supra, 535 U.S. at p. 309.) According to the final EIR's "Master Response regarding TRPA Thresholds," TRPA tracks vehicle miles traveled (VMT) in the Lake Tahoe Basin and has established a cumulative "VMT threshold of 2,067,600" for the basin. And, the final EIR went on, although cumulative VMT in the basin is nearing this threshold, estimated to be 1,984,600 VMT in the summer of 2010 (or at about 96 percent capacity), the project's anticipated contribution to VMT in the basin (23,842 VMT on busy summer days) would not cause an exceedance of TRPA's cumulative threshold.

But little in that discussion addressed the shortcomings in the draft EIR. Like the draft EIR, the final EIR still never discussed the importance of Lake Tahoe or its current condition. It instead largely appeared to presume that Lake Tahoe needed no introduction, and so little needed to be said about it. And although the final EIR at least offered some figures about current and anticipated VMT around Lake Tahoe, it never clearly explained how all these figures related to the lake. The County instead only acknowledged the connection between VMT and Lake Tahoe's clarity after the final EIR was prepared, revealing six days before the board of supervisors approved the project that increased "VMT and its related effects—tailpipe emissions and crushed abrasives—have a direct role in lake clarity." But none of that was disclosed in the EIR. And so when the final EIR acknowledged the project would significantly increase traffic in the basin—adding, again, an estimated 23,842 VMT in the basin on busy days—the public had little if any ability to evaluate the relevance of that change to Lake Tahoe. That was improper. (See County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 954-955 [91 Cal.Rptr.2d 66] [finding inadequate an EIR that only superficially described the existing condition of several lakes that would be impacted by a project; the EIR's discussion, which focused only on lake levels, undermined the agency's ability "to assess the impacts of the proposed project"]; Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1122 [71 Cal.Rptr.2d 1] [finding inadequate an EIR that omitted a meaningful discussion of the regionally important vineyards and wineries that surrounded a project; "[d]ue to the inadequate description of the environmental setting for the project, a proper analysis of project impacts was impossible"].)

The County, its board, Squaw, and Squaw Valley Resort LLC (collectively, respondents), attempting to address these shortcomings, assert that the draft EIR's "Hydrology and Water Quality chapter ... noted that Lake Tahoe is a significant geographical feature in the region." But that chapter of the EIR, again, said only this about Lake Tahoe: "The plan area is located within the low elevation portion of the approximately eight square mile Squaw Creek watershed, a tributary to the middle reach of the Truckee River (downstream of Lake Tahoe)." No reader of that language could reasonably interpret it to "note[] that Lake Tahoe is a significant geographical feature in the region." Respondents' contrary position, like the EIR's analysis, simply appears to presume that Lake Tahoe is a known quantity and so the mere mention of the lake is sufficient to convey all that is necessary. It is not.

Respondents also challenge the need for a more robust discussion of Lake Tahoe in the environmental setting. No additional discussion was required, they reason, because "[t]he Project did not propose development in the Tahoe Basin ... and would not result in stormwater runoff or other pollutants draining into the lake." But respondents' first point about the location of the development ignores the "critical" importance of the regional setting. Again, as the CEQA Guidelines instruct, "[k]nowledge of the regional setting is critical to the assessment of environmental impacts." (CEQA Guidelines, § 15125, subd. (c); see Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 575 [276 Cal.Rptr. 410, 801 P.2d 1161] (Citizens of Goleta Valley) ["an EIR may not ignore the regional impacts of a project proposal, including those impacts that occur outside of its borders; on the contrary, a regional perspective is required"].) Respondents' second point is less persuasive still. They argue the project "would not result in stormwater runoff or other pollutants draining into the lake," but their own post-EIR responses suggest otherwise. In these responses, the County plainly demonstrated that increased VMT resulting from the project would increase the amount of pollutants draining into Lake Tahoe. The County noted, for example, that "abrasives" applied to roads around Lake Tahoe "can be crushed by tires and washed into the lake by stormwater runoff." And in part for that reason, the County explained, increased VMT in the basin has a "direct role in lake clarity" because it is associated with an increased amount of these abrasives (which are pollutants) washing into the lake. (See People v. Ramsey (2000) 79 Cal.App.4th 621, 629 [94 Cal.Rptr.2d 301] ["Concrete, rebar, sand, and similar waste materials are pollutants" under state and federal water law].)

Respondents lastly, on the topic of VMT, contend "the EIR addressed the issue at length." To make this showing, respondents cite two parts of the EIR. One part noted that "TRPA maintains several environmental carrying capacities pertaining to traffic," including one concerning VMT "for the entire basin." (See Gov. Code, § 66801, subd. (b) [TRPA has "the power to establish environmental threshold carrying capacities and to adopt and enforce a regional plan and implementing ordinances that will achieve and maintain such capacities ..."].) Another part, which we have discussed, noted that VMT in the summer of 2010 was estimated to be 1,984,600 per day in the basin, the project would add an estimated 23,842 VMT per day, and, putting these two figures together, total daily VMT under project conditions would be 2,008,442 VMT and thus lower than TRPA's cumulative threshold of 2,067,600 VMT. But neither of these portions of the EIR discussed or even intimated any relationship between VMT and Lake Tahoe's clarity and water quality. Nor did either of these portions of the EIR supply any description of the lake. And so, again, when the final EIR acknowledged the project would significantly increase traffic in the basin, the public had little if any ability to evaluate the relevance of that change to Lake Tahoe. We find the EIR was inadequate as a result. (See Galante Vineyards v. Monterey Peninsula Water Management Dist., supra, 60 Cal.App.4th at p. 1122; see also Sierra Club, supra, 6 Cal.5th at p. 521 [finding inadequate an EIR that "ma[de] it impossible for the public to translate the bare numbers provided into adverse health impacts or to understand why such translation is not possible at this time (and what limited translation is, in fact, possible)"].)

2. The Lake Tahoe Basin and the EIR's Discussion of Air Quality

We turn next to the EIR's discussion of the Lake Tahoe Basin and air quality.

The draft EIR's discussion of baseline air quality conditions was a little more substantial. Among other things, it noted that the federal Environmental Protection Agency and State Air Resources Board have established air quality standards for six so-called "criteria air pollutants": ozone, carbon monoxide, nitrogen oxides, sulfur oxides, lead, and particulate matter (of which there are two relevant types: respirable particulate matter (or PM10), which has a diameter of 10 micrometers or less, and fine particulate matter (or PM2.5), which has a diameter of 2.5 micrometers or less). It also explained that concentrations of these pollutants "are used as indicators of ambient air quality conditions," noted that vehicle traffic is one of the main sources for many of these pollutants, and then summarized air quality data from 2011 to 2013 from four monitoring stations in and around the Lake Tahoe Basin. The final EIR later added, as we have discussed, that the project is expected to result in increased vehicle traffic in the Lake Tahoe Basin (with an estimated daily addition of 23,842 VMT on busy days), supplied data about existing vehicle traffic from the summer of 2010 (estimated daily VMT of 1,984,600), and noted TRPA's cumulative threshold for VMT in the basin (2,067,600 VMT).

Sierra Watch challenges this discussion for several reasons, principally faulting the draft EIR for not discussing the "bi-state regulatory regime that governs the Basin," the basin's "environmental carrying capacity," or "VMT in the Basin." But all these objections appear to have been resolved in the County's responses in the final EIR. In these responses, the County discussed the agency with "jurisdiction over all development within the Basin in both California and Nevada" (namely, TRPA), described TRPA's "environmental carrying capacity" for vehicle traffic (namely, its cumulative threshold of 2,067,600 VMT), and noted current daily VMT in the basin and anticipated daily cumulative VMT with the project. Sierra Watch never, in its opening brief, explains why these responses were insufficient. It instead waits until its reply brief to complete its argument, saying there that the new information in the final EIR "came too late in the administrative process" and was insufficient to understand the project's impacts on the basin's air quality. But because Sierra Watch raises these arguments for the first time in its reply brief, we find them forfeited. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8 [265 Cal.Rptr. 788].)

Sierra Watch also contends the draft EIR's discussion of the environmental setting failed to "describe the current air quality conditions" in the basin and instead "merely references data from two monitoring stations in the Basin." But Sierra Watch never explains why the County's summary of data about the basin's air quality conditions (which came from three, not two, monitoring stations in the basin) failed to sufficiently "describe the current air quality conditions." Perhaps Sierra Watch had a reasonable point to make here, but because it failed to explain itself, we treat the point as forfeited. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [79 Cal.Rptr.2d 273] (Badie) ["When an appellant ... asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived"].)

Finally, in terms of the environmental setting, Sierra Watch asserts that more information was required to supply "complete information on this environmental setting." But it never identifies the type of information it believes is lacking and, in any event, it asks for too much in seeking "complete information." As courts have long made clear, an EIR "`"need not include all information available on a subject."'" (North Coast Rivers Alliance v. Marin Municipal Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 639 [157 Cal.Rptr.3d 240]; see also In re Bay-Delta etc., supra, 43 Cal.4th at p. 1175 [courts look "`not for perfection but for adequacy, completeness, and a good faith effort at full disclosure'"].)

B. Consideration of Impacts

Sierra Watch next, still on the topic of Lake Tahoe Basin, contends the EIR failed to "meaningfully assess[] the Project's [traffic] impacts on" Lake Tahoe and the basin's air quality. We agree.

The EIR provided mixed messages on the project's potential impacts to Lake Tahoe and the basin from increased traffic. On the one hand, it said the project would not result in an exceedance of TRPA's cumulative VMT threshold for the Lake Tahoe Basin. But on the other hand, it showed the project would likely exceed TRPA's project-level threshold of significance for traffic in the basin. The EIR noted that TRPA has not consistently applied any particular threshold when evaluating project-level impacts, but, after reviewing several EIRs from TRPA, it found two "used a daily trip generation threshold of 200 trips as a significance threshold," one "used a criterion of 1,150 VMT as a significance threshold," and another used a flexible significance criterion that considered whether an increase in VMT would be "substantial in relation to the [cumulative] VMT threshold standard." Under the first two thresholds of significance—the VMT and daily-trip thresholds— the project here would plainly have a significant impact. It would result in daily VMT over 2,000 percent above the 1,150-VMT threshold and daily trips over 500 percent above the 200-daily-trip threshold.3 But under the third described threshold of significance, which eschewed a numerical threshold in favor of a more flexible standard focused on "substantial" increases in VMT, the significance of the project's impacts is less straightforward. We can note, however, that the project would increase daily VMT in the basin by about 1.2 percent and would reduce the available VMT capacity under TRPA's cumulative threshold by about 28.7 percent.4

Rather than follow one of TRPA's approaches, however, the EIR simply declared that TRPA's thresholds were inapplicable because the project is not located in the basin. But if TRPA standards were inapplicable, what standards did apply? The EIR never answered the question. Nor did it supply any meaningful information to evaluate the significance of a daily addition of 23,842 VMT on Lake Tahoe's water quality and the basin's air quality. Nor did it even offer any clear conclusion on whether this additional traffic would significantly impact Lake Tahoe and the basin. It instead simply supplied some discussion about TRPA's thresholds of significance and then said "the TRPA thresholds are not used as standards of significance in this EIR."

We find this discussion inadequate. The EIR needed to determine whether the project's impacts on Lake Tahoe and the basin were potentially significant—not simply summarize, and then declare inapplicable, another agency's framework for evaluating these types of issues. Even supposing the EIR actually reached a conclusion about the project's impacts, we would still find it defective. Under CEQA, an agency's conclusion as to whether a given impact is significant is not enough; "there must [also] be a disclosure of the `analytic route the ... agency traveled from evidence to action'"— something that never occurred in the EIR here. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 404 [253 Cal.Rptr. 426, 764 P.2d 278].)

Making matters worse, the EIR's offered figures on VMT underestimated expected cumulative VMT in the basin. The final EIR, again, said that cumulative VMT in the summer of 2010 were 1,984,600 and the addition of the project's estimated VMT would push that cumulative figure to 2,008,442 in the future. But in reaching these figures, the EIR improperly ignored the expected addition of VMT from other anticipated projects, including another large development the County was itself considering approving. (See CEQA Guidelines, § 15065, subd. (a)(3) [in determining whether a project's impacts are "cumulatively considerable," agencies must consider "the incremental effects of an individual project ... in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects"].)

Although the County eventually, after the final EIR was prepared, recognized its failure to account for the expected addition of VMT from other projects and acknowledged the "important" connection between VMT and Lake Tahoe, its belated discussion of these issues came too late. Six days before the County's board of supervisors certified the EIR, and several months after the preparation of the final EIR, the County provided additional information about the project's impact on Lake Tahoe's water quality. In these post-EIR responses, the County acknowledged for the first time that "[t]he connection between VMT and Lake clarity is important, as vehicle emissions and roadway fires are known contributors to loss of clarity." It also acknowledged the connection between VMT and air quality, explaining that TRPA has historically "linked higher VMT to," among other things, "increased airborne concentrations of particulate matter that could affect regional and subregional visibility and human health." And, at least implicitly, it acknowledged too that the EIR's calculation of expected cumulative VMT in the basin should not have ignored the expected VMT from other anticipated projects.

After acknowledging these issues and updating its VMT estimates, the County then explained why, in its view, the increased traffic resulting from the project would not adversely impact Lake Tahoe or the basin. To start, the County wrote, "a direct link between a specific number of VMT and attainment of Lake clarity goals has not been established," and, as a result, even TRPA has acknowledged the need to further evaluate the relationship between the two. In addition, based on its review of an EIR prepared for a different project, the County opined that technological advances emphasize the need for further evaluation of TRPA's standards. According to the County, improvements in technology since TRPA established its VMT thresholds— including improvements in limiting stormwater runoff into the lake and reducing tailpipe emissions—could mean that TRPA's thresholds, which were initially developed decades ago, are now outdated. Given these considerations, the County concluded, because "the relationship between a specific VMT and lake clarity is not well understood," and because the "addition of the project's VMT to existing Tahoe Basin VMT would not be significant even if the [arguably outdated] TRPA VMT threshold was used as a threshold of significance for project impacts," the final "EIR conclusion is accurate and supported by evidence in the record."5

All this information, however, came far too late in the CEQA process. CEQA requires agencies to discuss a project's potentially significant impacts in the draft EIR and final EIR. (CEQA Guidelines, § 15120, subd. (c); see also id., §§ 15125, 15126.2.) And to the extent an agency omits an adequate discussion of a project's potential impacts in its EIR, it cannot afterward "make up for the lack of analysis in the EIR" through post-EIR analysis. (Save our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 130 [104 Cal.Rptr.2d 326] [project information revealed in an "errata" shortly before project approval "d[id] not make up for the lack of analysis in the EIR"].) To find otherwise, after all, would deny the public "an `"`opportunity to test, assess, and evaluate the [newly revealed information] and make an informed judgment as to the validity of the conclusions to be drawn therefrom.'"' [Citation.]" (Id. at p. 131; see also Cleveland National Forest Foundation v. San Diego Assn. of Governments, supra, 3 Cal.5th at p. 511 [an EIR must itself "`include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project'"].)

Respondents never appear to argue otherwise on this last point. They instead contend the County's post-EIR responses only "elaborated on and confirmed" information in the EIR. But we find differently. Again, in these post-EIR responses, the County acknowledged and analyzed, apparently for the first time, the potential impacts from the project's generation of an additional 23,842 VMT per day in the Lake Tahoe Basin. In this way, these responses did not merely elaborate on and confirm the EIR's conclusions; they instead supplied critical analysis and conclusions that were initially absent from the EIR.

Sierra Watch, apart from challenging the County's ability to rely on these late responses, also contends these post-EIR responses were substantively flawed for several reasons. But the alleged inadequacy of the County's post-EIR comments are beside the point under CEQA, as "the inadequacy of [an agency's] responses to ... comments [on the final EIR] is not sufficient to render approval of the CEQA project ineffective or contrary to law." (Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1111 [85 Cal.Rptr.3d 50].) And so, although we agree the EIR's analysis was flawed, we will not separately address the alleged inadequacy of these post-EIR comments.

III

Wildfire Impacts*

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IV

Noise Impacts

Sierra Watch next contends the EIR failed to adequately analyze and mitigate construction noise impacts. Although we reject most of its arguments, we agree the EIR's analysis and mitigation of construction noise impacts are inadequate.

A. Analysis of Impacts

We start with Sierra Watch's several arguments concerning the EIR's analysis of construction noise impacts.

First, Sierra Watch asserts, "the EIR does not disclose the duration of construction noise at any specific location" and is improper for that reason. We reject the argument. To begin, the EIR did disclose the duration of construction noise for at least part of the project. It estimated that construction time for the East Parcel, a relatively small part of the project where employees would be housed, would take between 24 and 30 months. But that said, it is at least true that the EIR did not estimate the duration of construction noise for the Village, which involved the bulk of the project.

Even so, we decline to find the EIR inadequate for that reason. The EIR sufficiently demonstrated why specific detail about the duration of construction noise at each specific location in the Village was not possible. The project would be constructed over 25 years. It included no specific plan on where buildings would be located, opting instead for "flexibility regarding the placement and design of individual buildings." It included no "specific construction schedule" because the "sequence and pace for constructing various land uses and facilities would be market driven." And it emphasized the potentially sporadic pace of development, noting that some years may have no construction and other years, in contrast, may involve simultaneous construction of several "elements" of the project. For these types of reasons, the EIR explained, "it would not be practical, and would require a great deal of speculation, to identify specific noise levels for every single receptor."

Sierra Watch appears to acknowledge, without objection, that these considerations make the sequence and pace of construction largely unknown, but it maintains that the EIR at least should have described the duration of construction for each part of the project. We find differently. The County perhaps could have speculated how long construction noise would occur over the next 25 years at each specific location in the Village. Perhaps, for example, it could have presumed where buildings would ultimately be located in the Village, and then assumed that all buildings in any given part of the Village would be constructed at the same time—resulting in a shorter period of construction noise. Or perhaps it could have assumed something else altogether. But any estimate, as far as we can tell, would entail a fair bit of speculation. As the EIR explained, the "sequence and pace for constructing various land uses and facilities" would depend on market considerations over decades. And as it further explained, even the specific location of the project's buildings is not yet clear. So while Sierra Watch may have preferred detailed estimates about construction duration in each specific location in the Village, the EIR was not required to supply speculative estimates. A lead agency, after all, need not speculate about project impacts (see CEQA Guidelines, § 15145) and instead may discuss potential project impacts at a "level of specificity ... determined by the nature of the project and the rule of reason" (Center for Biological Diversity v. Department of Fish & Wildlife (2015) 234 Cal.App.4th 214, 233 [183 Cal.Rptr.3d 736]; see also CEQA Guidelines, § 15146).

Given these considerations, we decline to find that the absence of estimates of construction duration for the Village is fatal to the EIR. And we find that true even though the EIR offered an estimate for the East Parcel of 24 to 30 months. On that last point, Sierra Watch maintains that because the County provided an estimate of construction time for the East Parcel, it also needed to provide an estimate of construction time for the Village. But the East Parcel and the Village, as the EIR made clear, were not comparable. The EIR noted that the Village consisted of two general areas (the "Village Core" and the "Village Neighborhood"), said that the location of the buildings in each area was "flexib[le]," and explained that the assigned building density for lots within each area could change up to 25 percent, as the project allowed "for transfer of density" up to 25 percent "between lots within each planning area (i.e., Village Core or the Village Neighborhoods)." All those features, the EIR indicated, tended to make estimating construction noise in any given part of the Village problematic—far more so than for the smaller and more predictable East Parcel, which would be about a 10th of the size of the Village. Considering these distinctions, that the County could estimate construction times for the East Parcel does not necessarily mean it could also estimate construction times for the Village.

Sierra Watch next asserts that "the EIR does not analyze the Project's full geographic range of noise impacts, for it ignores activities occurring farther than 50 feet from sensitive receptors." We agree on this point. The EIR discussed noise impacts to "sensitive receptors" lying within 50 feet of expected construction activity. It explained that, "at 50 feet from the acoustical center of the construction site," daytime "construction-related activities... could result in noise levels of up to 94 dBA Leq and 98 dBA Lmax"—louder than a gas lawnmower at three feet.6 It added that, "at 50 feet from the construction site," "[n]ighttime construction activities could result in noise levels of up to 79 dB[A] Leq and 84 dB[A] Lmax"—about as loud as a garbage disposal at three feet. Based on these considerations, the EIR concluded that these daytime and nighttime noise levels could significantly disturb certain "sensitive receptors" sitting at or within 50 feet of expected construction activity. But, with one exception for a boarding school, the EIR never considered impacts to sensitive receipts lying outside this 50-foot zone. Nor did it discuss its reasons for not doing so. As a result, while the EIR would acknowledge significant impacts to a receptor sitting 50 feet from expected construction activity, it would altogether ignore potential impacts to a receptor sitting an inch more distant—even though the noise levels at these two distances would presumably be the same.

We find the EIR fell short with this arbitrary line drawing. A lead agency cannot ignore a project's expected impacts merely because they occur, as Sierra Watch puts it, "outside an arbitrary radius." Our Supreme Court has long demonstrated as much, explaining, for example, "that an EIR may not ignore the regional impacts of a project proposal, including those impacts that occur outside of its borders." (Citizens of Goleta Valley, supra, 52 Cal.3d at p. 575.) And if an EIR cannot ignore a project's impacts on the surrounding region, it certainly cannot ignore its impacts on sensitive areas sitting only a little over 50 feet from the project. That is particularly true here, as the EIR itself acknowledged that sound impacts may be significant even beyond 50 feet. In particular, in discussing the boarding school, the EIR acknowledged the school would experience noise levels up to 85 decibels, even at a distance of 250 feet from construction activity. And it acknowledged also that these noise levels would cause a significant impact. But without any apparent explanation, it declined to consider potential noise impacts to other receptors sitting at a similar distance from planned construction activities. That was improper.

Attempting to address this issue, respondents contend it is "standard" to "focus[] on receptors located within 50 feet of construction activities." But even assuming that is true, respondents have not shown it is standard, or appropriate, to ignore evidence of noise disturbance outside this radius. Nor have they shown, as they allege, that this is "a methodological issue" for which they are "entitled to deference." An agency, to be sure, "may" be entitled to deference in its "decision as to which methodologies to employ for analyzing an environmental effect." (Sierra Club, supra, 6 Cal.5th at p. 516.) But it cannot employ a methodological approach in a manner that entirely forecloses consideration of evidence showing impacts to the neighboring region, impacts beyond a project's boundaries, or, as occurred in this case, impacts to areas sitting beyond 50 feet from construction activities. (See Citizens of Goleta Valley, supra. 52 Cal.3d at p. 575 ["an EIR may not ignore the regional impacts of a project proposal, including those impacts that occur outside of its borders"]; cf. East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th at p. 281, 303 [209 Cal.Rptr.3d 774] (East Sacramento Partnerships) ["`a threshold of significance cannot be applied in a way that would foreclose the consideration of other substantial evidence tending to show the environmental effect to which the threshold relates might be significant'"].)

Third, Sierra Watch contends "the EIR never describes the nature of the noise impact, i.e., how noise could affect residents' living patterns, speech, sleep, and health." But, contra Sierra Watch's claim, the EIR specifically acknowledged that construction activities could "result in increased annoyance," cause "potential sleep disruption," and "cause speech disruption" for occupants of nearby residences. It explained that daytime "construction-related activities ... could result in noise levels of up to 94 dBA Leq and 98 dBA Lmax" and "[n]ighttime construction activities could result in noise levels of up to 79 dB[A] Leq and 84 dB[A] Lmax." It further explained that, "with typical noise attenuation of 25 dBA by walls and windows, interior noise levels could be as high as 69 dBA Leq/73 dBA Lmax during the day (high enough to cause speech disruption), and 54 dBA Leq/61 dBA Lmax at night during nighttime construction (which may cause sleep disruption)." And it also explained the significance of those figures, noting that 69 to 73 dBA is about as loud as a noisy urban area and 54 to 61 dBA is about as loud as, on the high end, a commercial area and, on the low end, a quiet urban area in the daytime. Based on these considerations, the EIR included mitigation to address noise impacts but, "despite this," still found noise impacts would be "significant and unavoidable." Considering this discussion, we reject Sierra Watch's contention that the EIR "never" described "how noise could affect residents' living patterns, speech, sleep, and health."

Before turning to Sierra Watch's contentions concerning the EIR's mitigation measures for noise impacts, we briefly consider a County ordinance that exempts daytime construction noises from its typical noise standards. Both parties briefly mention the ordinance. Respondents, for example, note "the County could have found daytime construction noise exempt and therefore insignificant"—though they then quickly add that the County declined to take that approach. Respondents' claim is a questionable one. Although the County's ordinance may have exempted daytime construction noise from the County's typical noise requirements, that does not necessarily mean the County could have relied on this ordinance to prevent consideration of evidence of noise impacts under CEQA. (See Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1380 [111 Cal.Rptr.2d 598] [CEQA did not define "significant noise impacts simply in terms of whether a project would violate applicable local, state, or federal noise standards"]; see also East Sacramento Partnerships, supra, 5 Cal.App.5th at p. 303 ["`a threshold of significance cannot be applied in a way that would foreclose the consideration of other substantial evidence tending to show the environmental effect to which the threshold relates might be significant'"].) In any event, because the County disclaims reliance on the ordinance in the EIR and in the briefing, we need not discuss the issue further.

B. Mitigation

We consider next Sierra Watch's challenge to the EIR's mitigation measures for noise impacts.

First, it argues, "because the EIR fail[ed] to adequately analyze the Project's construction-noise impacts, the County never effectively mitigated them." Sierra Watch raises the point prematurely. Although we agree the EIR improperly ignored noise-related impacts beyond a certain radius, we cannot, at this stage, say those unconsidered impacts were insufficiently mitigated. Perhaps the EIR's existing mitigation measures sufficiently mitigated these impacts. Perhaps not. Because these impacts have yet to be considered, we will not prematurely speculate on the topic.

Next, Sierra Watch alleges the EIR arbitrarily applied some of its mitigation measures to benefit only certain sensitive receptors—an argument that focuses on the EIR's different treatment of the school and other nearby buildings. To mitigate impacts to the school, the EIR included the following mitigation: "Construction on the East Parcel shall be designed to avoid intrusive noise, defined as an interior noise level of 45 dBA Leq/65 dBA Lmax or greater, during the time when classroom activities take place at the [school]." The EIR also described potential methods to achieve those noise levels, including by replacing windows and increasing insulation at the school. But the EIR included no similar measure to protect other sensitive receptors, and Sierra Watch contends the EIR is faulty as a result. We disagree. The County noted it would be "infeasible" to provide similar protections for all affected receptors, and it explained why it provided this measure for the school in particular—"it would protect the primary function of [the school]: educating students during daytime classes when construction activities would typically take place." Sierra Watch contends this "rationale arbitrarily refuses to protect the primary functions of other equally sensitive receptors, like residences and churches." But given the absence of any information about these "residences and churches" and "other equally sensitive receptors" in Sierra Watch's briefing, we do not find the County acted improperly in including additional protections for the school, a receptor found to be particularly sensitive to daytime noise, but not these other receptors.

Lastly, Sierra Watch alleges the EIR includes "no performance standards" for most of its mitigation measures, and so "never assures that the measures would actually avoid noise impacts." Sierra Watch focuses on two mitigation measures in particular: one that requires construction equipment to be "properly maintained and equipped with noise-reduction intake and exhaust mufflers and engine shrouds, in accordance with manufacturers' recommendations," and another that requires "operations and techniques" to "be replaced with quieter procedures (e.g., using welding instead of riveting, mixing concrete off-site instead of on-site) where feasible and consistent with building codes and other applicable laws and regulations." Both measures, Sierra Watch alleges, are too vague.7

We reject Sierra Watch's challenge to the first measure. That measure, again, requires construction equipment to be "properly maintained and equipped with noise-reduction intake and exhaust mufflers and engine shrouds, in accordance with manufacturers' recommendations." In our view, this measure establishes two concrete requirements: (1) equipment must be maintained in accordance with the manufacturer's recommendations, and (2) equipment must be fitted with specified noise-reducing technologies. Although Sierra Watch maintains the measure is nonetheless too vague, it never explains why that is so. We reject the argument.

But we agree the second challenged mitigation measure falls short. That measure, again, requires "operations and techniques" to "be replaced with quieter procedures (e.g., using welding instead of riveting, mixing concrete off-site instead of on-site) where feasible and consistent with building codes and other applicable laws and regulations." The measure is specific in terms of its examples—construction contractors must weld instead of rivet and mix concrete offsite instead of onsite. But it is otherwise entirely vague— "operations and techniques shall be replaced with quieter procedures ... where feasible ...." This language, in effect, only tells construction contractors to be quieter than normal when they can. Although that may be good neighborly advice, it is not sufficient as a mitigation measure. It defers until later the determination of which construction procedures can feasibly be changed and how these procedures can be modified to be quieter. And it offers no instruction on how either of these determinations are to be made. It is inadequate as a result. (See Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467, 520 [264 Cal.Rptr.3d 309] [finding inadequate a mitigation measure that set a "generalized goal" for reducing emissions and then, to achieve that goal, relied on "unspecified and undefined" protocols]; Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 281 [148 Cal.Rptr.3d 310] [finding inadequate a mitigation measure that required the future approval of a habitat management plan but did not "describe the actions anticipated for active management" or "specify performance standards or provide other guidelines for the active management requirement"]; see also CEQA Guidelines, § 15126.4, subd. (a)(1)(B).)

V, VI*

...............................................................................

DISPOSITION

The judgment is reversed. The trial court is instructed to enter, consistent with this opinion, a new judgment granting the petition for writ of mandate and specifying those actions the County must take to comply with CEQA. Sierra Watch is entitled to recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a).)

Raye, P. J., and Duarte, J., concurred.

FootNotes


* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts III, V. and VI of the Discussion.
1. California Code of Regulations, title 14, sections 15000 to 15387 are ordinarily referred to as the "CEQA Guidelines." We will use that shorthand to refer to these regulations going forward.
2. Shortly after it filed its CEQA action, Sierra Watch also filed a related action challenging the County's conduct under the Brown Act. In that case too, the court rejected all Sierra Watch's claims. Sierra Watch afterward appealed the court's decision, which we considered in the separate case of Sierra Watch v. Placer County (2021) 69 Cal.App.5th 1 [___ Cal.Rptr.3d ___].
3. The EIR, at one point, said the project would generate about 1,353 daily trips into the basin. But later on, it suggested the trips into the basin would actually be somewhat lower because a measure intended to address transit impacts would expand transit services. It never, however, estimated the potential reduction in daily trips resulting from this mitigation measure.
4. Absent the project, TRPA's cumulative threshold allowed room for 83,000 additional VMT (2,067,600 VMT-1,984,600 VMT = 83,000 VMT). But with the project, which would add 23,842 VMT, that capacity would fall to 59,158 VMT—or by about 28.7 percent.
5. On this logic, a project that added 82,999 daily VMT to the basin would have an insignificant impact because total estimated VMT (which would now be 2,067,599) would remain one VMT below the cumulative threshold of 2,067,600 VMT; yet the next project, even if it added only 10 daily VMT to the basin, would result in an exceedance of the cumulative threshold and thus have a significant impact. Perhaps that is a supportable conclusion. Perhaps not. We need not address this issue here.
* See footnote, ante, page 86.
6. The terms dB, dBA, Leq, and Lmax are shorthand for decibels (dB), A-weighted decibels (dBA), A-weighted equivalent sound level (Leq), and A-weighted maximum sound level (Lmax). Because these terms are probably unfamiliar to most, we will briefly summarize the meaning of each. Decibels are the units of measurement for sound intensity. Because knowing a sound's decibel level does not in itself adequately characterize how humans perceive the sound, the sound is often described in terms of A-weighted decibels—which, unlike unweighted decibels, account for the human ear's varying sensitivity to different frequencies. To account for varying sound levels over time, the sound is also often described in terms of the A-weighted equivalent sound level—which represents the average sound level over a specified period—and in terms of the A-weighted maximum sound level—which represents the highest sound level over a specified period.
7. Sierra Watch suggests that other mitigation measures are also inadequate, but it never discusses those other measures and so we will not consider them. (Badie, supra, 67 Cal.App.4th at pp. 784-785.)
* See footnote, ante, page 86.

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