Citizens for Ceres v. City of Ceres ( 2016 )

Filed 9/12/16
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
CITIZENS FOR CERES,
F070988
Plaintiff and Appellant,
(Super. Ct. No. 670117)
v.
CITY OF CERES, OPINION
Defendant and Respondent;
WAL-MART STORES, INC. et al.,
Real Parties in Interest and Respondents.
CITIZENS FOR CERES, F071600
Plaintiff and Respondent, (Super. Ct. No. 670117)
v.
CITY OF CERES,
Defendant and Respondent;
WAL-MART STORES, INC. et al.,
Real Parties in Interest and Appellants.
*Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I through V of the Discussion and the
Concurrence.
APPEAL from a judgment of the Superior Court of Stanislaus County. Roger M.
Beauchesne, Judge.
Shore, McKinley & Conger, Brett S. Jolley and Aaron S. McKinney, for Plaintiff
and Appellant in No. F070988, and for Plaintiff and Respondent in No. 71600.
Meyers, Nave, Riback, Silver & Wilson, Edward A. Grutzmacher, for Defendant
and Respondent, City of Ceres.
K & L Gates, Edward P. Sangster and Daniel W. Fox for Real Parties in Interest
and Respondents in No. 70988, and for Real Parties in Interest and Appellants in
No. 71600.
-ooOoo-
After conducting an environmental review, the City of Ceres (city) approved the
development of a shopping center anchored by a Wal-Mart Supercenter to replace an
existing Wal-Mart store. Citizens for Ceres (Citizens) filed a petition for a writ of
mandate in the trial court pursuant to the California Environmental Quality Act (Pub.
Resources Code, § 21000 et seq.1) (CEQA), alleging several defects in the environmental
documents the city certified when it approved the project. The trial court denied the
petition and Citizens appeals.
Citizens makes four arguments: (1) The environmental impact report (EIR)
certified by the city did not mandate adequate mitigation measures for the urban decay
impact of the project; (2) the EIR did not sufficiently analyze the project‟s impacts on
landfill and recycling facilities and did not mandate adequate mitigation measures for
those impacts; (3) the EIR failed to contain adequate information correlating the project‟s
air pollution impacts with resulting effects on human health; and (4) the city‟s statement
of overriding considerations, a document that explains how the project‟s benefits will
1Subsequent statutory references are to the Public Resources Code unless
otherwise noted.
2.
outweigh its significant and unavoidable environmental impacts, was not supported by
substantial evidence. We reject each of these arguments.
After prevailing in the trial court, real parties in interest Wal-Mart Stores, Inc., and
Wal-Mart Real Estate Business Trust (collectively Wal-Mart) filed a memorandum of
costs in which they requested, among other things, an award against Citizens of
$48,889.71 for the cost of preparing the administrative record. The city had incurred this
cost by directing the record‟s preparation by outside counsel and Wal-Mart had
reimbursed the city. Granting Citizens‟ motion to tax costs, the trial court struck this
item from Wal-Mart‟s memorandum of costs. The court held that Hayward Area
Planning Assn. v. City of Hayward (2005) 128 Cal.App.4th 176 (Hayward Area
Planning) and section 21167.6, subdivision (b)(1) and (2), bar a real party in interest
from recovering the cost of preparing the administrative record when a petitioner had
requested a lead agency to prepare the record and had not consented to a real party‟s
involvement in its preparation. In a separate appeal, Wal-Mart argues that this
application of Hayward Area Planning was erroneous. We agree.
We affirm the trial court on the appeal by Citizens and reverse as to Wal-Mart‟s
appeal on the cost of preparing the administrative record.2
FACTS AND PROCEDURAL HISTORY
The project is a shopping center with about 300,000 square feet of retail space
located at Mitchell Road and Service Road in Ceres. A building of about 190,000 square
feet constitutes the first phase, to be occupied by a Wal-Mart store. This store will
replace an existing Wal-Mart in Ceres. The new store will have nongrocery space
comparable to the existing store, to which it will add a 56,000 square-foot grocery area.
2This is the second opinion we have issued in this case. The first, Citizens for
Ceres v. Superior Court (2013) 217 Cal.App.4th 889 (Citizens for Ceres I), granted
Citizens‟ petition for a writ of mandate regarding privilege claims erroneously sustained
by the trial court in connection with the preparation of the administrative record.
3.
The remainder of the project includes 10 additional buildings intended for smaller stores
and restaurants. There is no specific timetable for the construction of any but the Wal-
Mart portion of the project.
An application for the necessary land-use approvals was submitted to the city on
February 16, 2007, by an entity called Regency Centers. Wal-Mart bought the land from
Regency Centers in 2009 and became the project applicant.
The city issued a notice of preparation of the EIR on September 5, 2007. It
released the draft EIR on May 19, 2010, and announced a 45-day public-comment period.
The final EIR, including responses to comments, was issued on February 2, 2011. The
city‟s planning commission held public hearings on February 22 and April 4, 2011, and
voted to certify the final EIR.
The city‟s procedures provided for a process referred to as an appeal, in which the
city council would review the planning commission‟s decision. Citizens filed such an
appeal, leading to public hearings before the city council on May 23, August 22, and
September 12, 2011. The city council upheld the planning commission‟s decision and
again certified the final EIR. The city issued a notice of determination on September 13,
2011, stating that it had certified the EIR. The land-use approvals granted included a
conditional use permit and a vesting tentative subdivision map.3
Citizens filed its writ petition in the trial court on October 12, 2011. The petition
advanced the claims Citizens advances in this appeal, among others.
3A conditional use permit authorizes a land use that, under a zoning ordinance, is
allowed only when certain conditions are met. (Neighbors in Support of Appropriate
Land Use v. County of Tuolumne (2007) 157 Cal.App.4th 997, 1006.) A vesting tentative
subdivision map authorizes a developer to proceed with development in accordance with
local laws in effect at the time of application for the map, thus avoiding the potential for
frustration of the project by later enactments. (City of West Hollywood v. Beverly
Towers, Inc. (1991) 52 Cal.3d 1184, 1193, fn. 6.)
4.
While the writ petition was pending, a dispute developed between the parties over
the city‟s claim that all communications between the city and Wal-Mart were privileged.
The city refused to disclose these communications and did not include them in the
administrative record it prepared for purposes of the writ proceedings in the trial court.
(Citizens for Ceres I, supra, 217 Cal.App.4th at pp. 899-900.) The trial court upheld the
privilege claims, and Citizens filed a writ petition in this court. (Id. at p. 905.) In our
opinion filed on July 8, 2013, we held that, for all communications preceding project
approval and passing between the city and Wal-Mart, privileges were waived by
disclosure and the common-interest doctrine did not apply. (Id. at pp. 898, 914.)
The case then proceeded in the trial court, and Citizens‟ petition on the merits was
heard and taken under submission on July 11, 2014. The court rejected all of Citizens‟
claims and denied relief in a statement of decision filed on November 3, 2014. Judgment
was entered on November 25, 2014.
Wal-Mart filed its memorandum of costs in the trial court on December 17, 2014.
It requested $49,284.71 in costs. Of this, $395 was for filing fees and $48,889.71 was for
“[o]ther.” The “[o]ther” costs, which are at issue in this appeal, were broken down as
follows: original administrative record, $34,981.84; supplemental administrative records,
$12,258.87; and privilege log, $1,649.
Citizens had requested pursuant to section 21167.6 that the city prepare the
administrative record, and the city had directed its outside counsel to carry out the
preparation. When Wal-Mart became the project applicant, it became successor to an
agreement between the city and the prior applicant; this agreement included the project
applicant‟s promise to reimburse the city for all expenses arising from legal challenges to
the project. Wal-Mart paid the city $48,889.71 for costs of preparing the administrative
record.
Citizens responded to Wal-Mart‟s memorandum of costs by filing a motion to tax
costs, in which it challenged the $48,889.71 claim. Citizens‟ motion argued that,
5.
although the city, as the lead agency, could have recovered the cost of preparing the
record under section 21167.6, Wal-Mart could not. The trial court agreed.
DISCUSSION
I. Standards of review and substantive legal standards under CEQA
If a CEQA petition challenges agency action that is quasi-adjudicatory in
character, the trial court‟s role is only to determine whether the action is supported by
substantial evidence in the record. (§ 21168.) If the agency action was quasi-legislative
in character, the trial court reviews the action for abuse of discretion. The agency abuses
its discretion if it does not proceed in the manner required by law or if the decision is not
supported by substantial evidence. (§ 21168.5.) “„Substantial evidence‟” is defined in
the Guidelines as “enough relevant information and reasonable inferences from this
information that a fair argument can be made to support a conclusion, even though other
conclusions might also be reached.” (§ 15384, subd. (a), Guidelines for the
Implementation of the California Environmental Quality Act (Cal. Code Regs., tit. 14,
§ 15000 et seq.) (Guidelines).) The formulations in sections 21168 and 21168.5 embody
essentially the same standard of review. Both require the trial court to determine whether
the agency acted in a manner contrary to law and whether its determinations were
supported by substantial evidence, and neither permits the court to make its own factual
findings. (Laurel Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376, 392, fn. 5; Burbank-Glendale-Pasadena Airport Authority v.
Hensler (1991) 233 Cal.App.3d 577, 589-590.) The Court of Appeal reviews the trial
court‟s decision de novo, applying the same standards to the agency‟s action as the trial
court applies. (Neighbors of Cavitt Ranch v. County of Placer (2003) 106 Cal.App.4th
1092, 1100.)
The EIR has often been called the heart of CEQA, functioning both to disclose the
environmental impacts of a proposed project before it can be approved and to identify
measures to mitigate the impacts, measures which must be imposed if feasible.
6.
(Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683,
706 (Woodward Park Homeowners).) An EIR must include discussion of a possible
environmental impact if substantial evidence in the administrative record supports a fair
argument that the impact will be significant. (Protect the Historic Amador Waterways v.
Amador Water Agency (2004) 116 Cal.App.4th 1099, 1109 (Amador Waterways).)
Having considered all such possible impacts, the EIR then must “identify and focus on”
those that will in fact be significant. (Guidelines, § 15126.2, subd. (a).) If the agency has
determined that a possible impact will not be significant, the EIR must make a finding to
that effect. (Guidelines, § 15128.) The EIR also must describe and impose feasible
mitigation measures, if any exist, that could minimize significant impacts. (Guidelines,
§ 15126.4, subd. (a)(1).) If more than one mitigation measure is available, the EIR must
discuss each and describe reasons for the measure or measures it selects. (Guidelines,
§ 15126.4, subd. (a)(1)(B).) If no mitigation measures are feasible, the EIR must say so.
(Guidelines, § 15091, subd. (a)(3).) An EIR can find that the feasible measures available
to avoid or mitigate a significant impact are within the jurisdiction of another agency that
has adopted them or can and should adopt them. (Guidelines, § 15091, subd. (a)(2).) In
any event, the EIR‟s findings must be supported by substantial evidence. (§ 21081.5.)
An agency is forbidden to approve a project unless it finds there are no significant
impacts, or imposes mitigation measures to reduce all significant impacts to an
insignificant level, or finds feasible mitigation measures are not available to reduce all
significant impacts to an insignificant level, or finds feasible mitigation measures are
within the jurisdiction of another agency. (§ 21081, subd. (a); Guidelines, § 15091,
subd. (a).) If the EIR finds there are significant impacts that cannot feasibly be mitigated
to an insignificant level, it must reject the project or adopt a statement of overriding
considerations when approving it. (§ 21081, subd. (b); Guidelines, § 15093.)
7.
II. Urban decay
Urban decay can be a significant environmental impact of a project under CEQA.
In the CEQA context, urban decay can include physical deterioration of buildings and
property as a result of the economic effects of a project, but it does not include those
economic effects themselves. For instance, if a retail project is expected to lead to
closures of competing businesses, the resulting dilapidation of those businesses‟ premises
can be deemed a significant environmental impact of the project under CEQA, but not the
business closures themselves. (Bakersfield Citizens for Local Control v. City of
Bakersfield (2004) 124 Cal.App.4th 1184, 1204-1207 (Bakersfield Citizens); Guidelines,
§§ 15064, subd. (e), 15131, subd. (a).)
In this case, the EIR discussed the possibility of an urban decay impact on one
building: the old Wal-Mart that will be closing when the new one opens. “Closure of
this store represents a substantial increase in the amount of vacant retail inventory, and
the space may prove difficult to re-tenant, especially in the short term,” the EIR stated.
For these reasons, “[t]his property presents the potential for urban decay, depending on
the property owner‟s ability to find a new tenant and the City‟s willingness and ability to
enforce ordinances regarding upkeep of the physical property .…”
The EIR then discussed chapter No. 9.40 of the Ceres Municipal Code, which
“contains numerous restrictions and standards for the maintenance of vacant buildings to
avoid public nuisances such as blight, and to protect surrounding property values.” The
ordinance requires trash removal, pest control, and maintenance of building exteriors and
landscaping. To cover the cost of monitoring and enforcement by the city, the ordinance
requires owners of vacant buildings to pay a fee.
The EIR found, however, that the ordinance might not “sufficiently minimize the
potential for blight and urban decay” because of “the size and nature of the building.”
Consequently, it imposed mitigation measure No. 4.5.1, which required “the property
owner” to “enter into a supplemental maintenance agreement with the City to ensure
8.
property maintenance until the site is reoccupied, and whereby the City will be
compensated (via bond or otherwise) for abatement of visual indications of blight on the
property if and when the property owner fails to adequately maintain the property in good
condition and abate elements of deterioration .…” With this mitigation measure, the EIR
concluded that the project‟s urban decay impact would be less than significant.
The EIR also stated that there was a risk that one of Ceres‟s five supermarkets
would be forced out of business by the grocery section of the new Wal-Mart. It found
that the most vulnerable store was Richland Market, 1.5 miles away from the new Wal-
Mart site. The EIR did not include any mitigation measures for the maintenance of any
supermarket that might close because of the project.
The EIR‟s findings about a possible supermarket closure were based on a report
prepared by Bay Area Economics, a firm of consultants retained by the city. This report
included a finding that a downward trend in housing construction had developed in Ceres
after the financial crisis of 2008. Because of this trend, the vacancy of any supermarket
that closed because of the project could be a long-term vacancy, which in turn could lead
to vacancies of smaller stores in the supermarket‟s shopping center. The center as a
whole then could deteriorate physically. Ceres at the time had few vacant commercial
properties, however, and these did not exhibit signs of decay.
Citizens submitted a report by economist Jim Watt to rebut the Bay Area
Economics report. Watt‟s report included opinions that the Bay Area Economics report
was too optimistic and was based on unrealistic projections of economic growth and
population growth. It stated that one supermarket had already closed, partly in
anticipation of competition from the new Wal-Mart, and that two more supermarkets and
a K-Mart were at risk. Because of a weak commercial leasing sector, large stores that
became vacant were likely to remain so for a long time. Some properties in the city
already showed signs of decay, a matter overlooked by the EIR, according to Watt.
9.
In its resolution certifying the EIR, the city added findings to give further support
to the EIR‟s findings about urban decay. The resolution stated that Richland Market was
located in a shopping center with a “strong second anchor,” Richland Ace Hardware.
Further, it was in a good location for serving a residential neighborhood and was likely to
attract a different category of tenants than those that would be drawn to the new Wal-
Mart center. The city as a whole had few vacant retail spaces. Finally, the resolution
cited the city‟s anti-blight regulations: “[I]n the event the supermarket does close,
existing City ordinances would require that the building be maintained while the building
is vacant.”
In Citizens‟ view, the EIR either should have found, or effectively did find, that
the potential for a supermarket closure or closures (with the attendant possible property
deterioration) was a significant environmental impact. Because the EIR did not include
any mitigation measure for that impact, Citizens says the EIR could not properly
conclude that the project‟s urban decay impacts would be mitigated to an insignificant
level.
We disagree. Under the substantial evidence standard, the question is only
whether a reasonable fact finder could make the findings the city made, not whether
contrary findings could have been upheld. (Guidelines, § 15384, subd. (a).) On this
record, the city could reasonably find as it did: The old Wal-Mart building was too large
for the city to cope with under its antiblight ordinance, so mitigation was required to
avoid decay at that location; but the remaining vacancy potential was limited and was
within the city‟s capabilities under the ordinance.
Citizens also argues that, in addition to failing to be supported by substantial
evidence, the EIR‟s treatment of urban decay means the city “has not proceeded in a
manner required by law .…” (§ 21168.5.) By this, Citizens means the city
acknowledged a significant impact but then refused to require mitigation of it. In reality,
this argument boils down to a repetition of Citizens‟ substantial evidence argument. The
10.
city can be deemed to have refused to require mitigation of a significant urban decay
impact on stores other than the old Wal-Mart only if substantial evidence fails to support
the finding that the city‟s antiblight regulations are up to the task of coping with the likely
vacancies. We have already rejected this argument.
Citizens next cites California Clean Energy Committee v. City of Woodland
(2014) 225 Cal.App.4th 173. In that case, the EIR for a shopping center project included
several mitigation measures addressing the project‟s urban decay impact on the city‟s
downtown and other areas. The EIR concluded that, even with these mitigation
measures, the project‟s urban decay impact would remain significant and unavoidable.
(Id. at pp. 182, 185, 189-190.) The Court of Appeal analyzed the mitigation measures
and found them insufficient. These measures called for the future creation of studies and
plans regarding the project‟s urban decay impacts, but did not mandate that any action be
taken based on the studies and plans. The lack of any action—even any projected future
action based on studies yet to be undertaken—meant these were not proper mitigation
measures under CEQA. (California Clean Energy Committee, supra, at pp. 193-200.)
The present case is not similar. The agreement mandated by mitigation measure
No. 4.5.1 is an agreement to maintain property, not a study or a plan unconnected with
any commitment to take action.
A passing reference in Citizens‟ opening brief to the “deferring” of mitigation
measures perhaps suggests that, because the maintenance agreement was to be executed
after rather than before the project‟s approval, it violates Guidelines section 15126.4,
subdivision (a)(1)(B): “Formulation of mitigation measures should not be deferred until
some future time.” If so, Citizens has forfeited the point by failing to develop it.
(Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21
Cal.4th 352, 366, fn. 2; Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324.) There is
additional discussion of the notion of deferred mitigation in Citizens‟ reply brief, but this
comes too late. Just as a court need not address a point raised for the first time in a reply
11.
brief (People v. Tully (2012) 54 Cal.4th 952, 1075), we will not deploy against a
respondent an argument mentioned but not developed in an appellant‟s opening brief and
then made clear for the first time in the reply brief.
For all these reasons, we reject Citizens‟ contention that the analysis and
mitigation of urban decay impacts in the EIR were insufficient.
III. Solid waste
The EIR‟s section on solid waste explained that, according to the checklist in
appendix G of the Guidelines, a project should “[b]e served by a landfill with sufficient
permitted capacity to accommodate the project‟s solid waste disposal needs” and
“[c]omply with federal, state, and local statutes and regulations related to solid waste.”
The EIR adopted these suggestions as the standards by which it judged whether the
project‟s solid waste impacts would be significant. That is, the project‟s solid waste
generation would be deemed not to have a significant impact on the environment if the
project was served by a landfill with sufficient permitted capacity and complied with
regulations.
Based on data about the types and quantities of retail uses to which the project was
expected to be devoted, the EIR projected the quantity of solid waste the project would
generate. It stated that, when the entire shopping center was complete, it would produce
about 1,100 tons of solid waste per year or 2.97 tons per day.
The EIR stated that the project would be served by the county‟s landfill on Fink
Road. This landfill had a permitted maximum disposal rate of 1,500 tons per day (about
550,000 tons per year) and was actually receiving 409 tons per day (about 150,000 tons
per year). The project‟s output of 2.97 tons per day (about 1,100 per year) “would not
result in a substantial contribution” to the landfill. Consequently, the project‟s
environmental impact from solid waste generation would not be significant and no
mitigation was necessary.
12.
The EIR acknowledged that the Fink Road landfill was expected to reach its
capacity and close in 2021. The county was “pursuing a permit change that would
increase the capacity” (italics omitted) and allow the landfill to continue operating for a
period to be determined by the permitting agency, “which could be anywhere from 5 to
15 years.” (Italics omitted.) Further, the county had “purchased and set aside land for a
new landfill,” but would seek a permit for a new landfill only if it failed to obtain an
extended permit for the Fink Road landfill. This new landfill was expected to have 20
years of capacity in its first phase and an additional 60 years of capacity in its second
phase.
In a separate section on the project‟s cumulative solid waste impact (i.e., its impact
considered in the context of increases in solid waste output from other projects), the EIR
noted that Ceres shared the Fink Road landfill with surrounding communities. It further
stated that a specified group of projects—some seeking approval, some approved, and
some under construction—“will increase demands placed on the City‟s solid waste
disposal and landfill facilities.” The EIR then repeated the above facts regarding
expanding or replacing the Fink Road landfill and noted that the cost of expanding or
replacing the landfill was built into the tipping fees charged for dumping refuse there.
Without undertaking a quantitative analysis of the solid waste impacts of the listed
projects, the EIR concluded that the project‟s solid waste impact was “less than
cumulatively considerable.” (Bolding omitted.)
Citizens‟ response to the draft EIR included a report by Curtis Fujii, an engineer.
Fujii opined that the EIR contained insufficient information to support its significance
findings regarding solid waste impacts. Among other things, the EIR did not contain a
sufficient explanation of how the project‟s waste will be disposed of when the county‟s
current landfill permit expires in 2021, what impact the project will have on recycling
facilities, and what the waste disposal consequences will be of Wal-Mart‟s use of
packaging made from polylactic acid, known as PLA or corn plastic (PLA). The city
13.
responded to Fujii‟s comments, and Citizens submitted a second report by Fujii opining
that the city‟s responses were insufficient.
Citizens makes three arguments: (1) because the only presently existing,
permitted landfill will reach its capacity in a few years, substantial evidence does not
support the EIR‟s finding that the project‟s solid waste impact will be insignificant;
(2) the EIR was required, but failed, to discuss the project‟s impact on recycling facilities,
including the impact arising from disposal of PLA packaging; and (3) the EIR‟s
discussion of the project‟s cumulative solid waste impact is inadequate because it
includes no quantitative discussion of other projects‟ incremental contributions to the
waste stream. We will consider these in turn.
A. Landfill capacity
Citizens‟ notion about landfill capacity is that when the Guidelines‟ appendix G
suggests a project‟s solid waste impact is significant unless the project is “served by a
landfill with sufficient permitted capacity to accommodate the project‟s solid waste
disposal needs” (Guidelines, appen. G, part XVII(f)), it means there must be permitted
capacity to accept the project‟s waste for the life of the project or some similarly lengthy
period of time. The argument fails because Citizens presents no foundation in authority
or logic for it.
For two projects having the same solid waste output and alike in other respects,
one might be situated in an area served by a new landfill with decades of remaining
capacity while the other might be in a place with an old landfill soon to be filled. The
second project has a potential to cause a significant impact that the first project lacks: It
could find itself with nowhere to send its waste in the short term. But this is, of course,
not necessarily what will happen. The authorities in the project‟s jurisdiction might have
adequate plans in place for coping with the expiring landfill capacity.
This is precisely what happened in this case. The EIR‟s finding of sufficient
future capacity—and thus of no significant impact—was based on evidence that the local
14.
authorities had reasonable contingency plans in place. They had applied for a 5-to-15-
year extension of the Fink Road landfill permit and had acquired land able to support a
landfill with 20 to 80 years‟ further capacity. This was sufficient.
Citizens says this case is similar to the so-called paper water cases. Paper water,
in the CEQA case law, is future water availability based on figures representing the once-
promised delivery capacity of the State Water Project. The trouble with paper water from
the CEQA perspective is that the State Water Project has never actually had that capacity
and, despite the hopes of its designers, is today not expected ever to have it. Paper water
cannot be an adequate basis for a water supply analysis in an EIR because it will never
exist. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova
(2007) 40 Cal.4th 412, 432; Planning & Conservation League v. Department of Water
Resources (2000) 83 Cal.App.4th 892, 914, fn. 7.) The present case is not similar.
Nothing in the record supports the supposition that Stanislaus County‟s landfill plans are
illusory. Citizens cites Fujii‟s second report, which attempted to cast doubt on those
plans by saying there is no such thing as “a „slam dunk‟ permit for either a landfill
expansion or a new landfill.” A slam dunk is not necessary, however. Even the cases
rejecting paper water do not require certainty. (Vineyard Area Citizens, supra, at p. 432.)
B. Recycling
The EIR‟s section on solid waste describes the city‟s recycling arrangements
under the heading “Existing Conditions.” It reports that the city has a contract for solid
waste and recycling services with Bertolotti Transfer and Recycling Center, which has its
recycling facility a few miles from the project site, with a maximum permitted capacity
of 750 tons per day. The EIR does not include any discussion of the project‟s output of
recyclable waste as an environmental impact.
Fujii‟s first report included a discussion of recycling. Citing data showing that 61
percent of the county‟s solid waste was diverted to recycling facilities, Fujii opined that
the EIR‟s solid waste analysis was incomplete because it did not examine the project‟s
15.
impact on recycling facilities. The EIR also should have included a specific discussion of
the handling of PLA plastic packaging, according to Fujii. Fujii cited public statements
by Wal-Mart that it had begun using this packaging instead of conventional plastic for
produce and other items. Fujii explained that PLA plastic is biodegradable and can be
composted but cannot be recycled along with ordinary plastic. When consumers place
PLA packaging in their recycling bins, recycling facilities are forced to expend resources
separating the PLA items from the recyclable items. Fujii quoted a “report prepared for
the California Integrated Waste Management Board” according to which, “„degradable
plastics could … contaminate the existing plastic recycling stream if they are not properly
collected and composted, thus reducing plastic recycling opportunities.‟” This problem
could, in turn, impair the region‟s ability to comply with recycling mandates imposed by
state law.
City staff prepared a memorandum that included a response to the first Fujii
report. Among other things, it explained that PLA was already in the waste stream.
Because the county had no composting program, it sent PLA waste to the landfill.
Residents were instructed to place PLA waste in their recycling bins along with other
plastics for curbside pickup; the PLA items were sorted out later. The administrative
record also includes a city planning document prepared in 2008 saying the city and
Bertolotti Transfer and Recycling Center “do not currently foresee any service issues
within the next 20 years.” Fujii‟s second report criticized the city for not providing
details on how the additional burden of sorting PLA would impact the recycling facility
or what the impacts would be of transporting additional PLA to the landfill.
Citizens presses the recycling and PLA arguments again now. We apply the fair
argument standard mentioned above when we review a claim that an EIR improperly
failed to discuss an impact. If substantial evidence in the record supports a fair argument
that the impact in question is significant, the EIR must analyze the impact. (Amador
16.
Waterways, supra, 116 Cal.App.4th at p. 1109.) As we will explain, Citizens‟ position
fails under this standard.
Citizens has cited no authority for the view that if a project will generate
recyclable waste, this is always an environmental impact that must be reviewed in an
EIR. It may seem anomalous that EIR‟s are expected to analyze the impact of
nonrecyclable waste on landfills but not necessarily the impact of recyclable waste on
recycling facilities. In our view, however, the distinction is logical. Unlike traditional
waste disposal methods, such as landfilling, recycling is not itself an environmental
problem, but is instead a solution to the problems presented by those traditional methods.
The California Integrated Waste Management Act (§ 40000 et seq.) (CIWMA) is
premised on this idea. The Legislature found that 90 percent of the state‟s solid waste
was disposed of in landfills; that some landfills threatened groundwater, air quality and
public health; and that landfill space would run out without measures to promote
recycling, reduction, and reuse. (§ 40000, subds. (b), (c), (e).) CIWMA mandated that
local governments implement waste management plans under which they would divert
waste from landfills by means of recycling, composting, and source reduction.
(§§ 41750, 41780.) Further, unlike a landfill, which merely accumulates waste and
eventually can take no more, a recycling facility processes and sells a product. For these
reasons, we agree with Wal-Mart and the city that when a project will result in increased
demand for recycling services, this often can be treated as an economic rather than an
environmental impact and need not be analyzed in the EIR.
Of course, in some cases a project might be expected to produce a quantity of
recyclable waste sufficient to overwhelm the available facilities, leading to the landfilling
of recyclables and possibly the failure of a local government to meet its obligations under
CIWMA. Then the project could be deemed to have a significant environmental impact
because of its production of recyclable waste. There is no evidence of that problem here.
The facts on which Citizens relies are simply that some portion of the solid waste
17.
produced by the project will be recyclable, and the quantity of recyclable waste produced
will presumably be greater than the quantity produced by the old Wal-Mart. This is
substantial evidence that the project will cause an increase in recycling; but as we have
explained, an increase in recycling in itself is not an adverse environmental impact. It is
not substantial evidence that the increase may be more than the city‟s recycling
contractor can handle. For that reason, it does not support a fair argument that there is a
significant impact needing discussion in the EIR.
PLA waste potentially presents a scenario in which recycling services could be
interfered with.4 Because of the sorting problem (PLA products cannot be recycled with
other plastic and must instead be separated and either composted or landfilled), a major
increase in PLA waste from a proposed project could conceivably lead to a reduction in
recycling and an increase in landfilling. There is no evidence of this type of problem in
this case, however. The evidence showed only that PLA was already in the waste stream,
the city‟s recycling contractor was already managing the extra sorting involved, and the
city and contractor saw no capacity problems with recycling for the next 20 years. In
light of this, the mere fact that the project would result in increased PLA waste output
compared with the old Wal-Mart was not substantial evidence sufficient to support a fair
argument that there would be a significant environmental impact.
C. Cumulative impacts
For the purpose of discussing certain cumulative environmental impacts of the
project, the EIR included a table of pending and recently approved projects in Ceres and
adjacent areas in Stanislaus County. The table showed a variety of residential and
4The city and Wal-Mart argue that Citizens failed to exhaust its administrative
remedies on this issue because it did not raise it until after the planning commission had
certified the EIR. Citizens argues that it did exhaust its administrative remedies because
it raised the issue before the city council certified the EIR. We will assume for the sake
of argument that Citizens is correct.
18.
commercial projects at various stages, some under environmental review, some approved,
and some under construction. The EIR‟s section on cumulative solid waste impacts
remarks that these projects, if built, together with other foreseeable development in the
area, “will increase demands placed on the City‟s solid waste disposal and landfill
facilities.”
The EIR then analyzes the cumulative solid waste impact of this expected growth
as follows:
“As indicated …, the proposed project is anticipated to generate substantial
amounts of solid waste. However, the proposed project will be served in
the near term by the Fink Road Landfill, which has adequate daily capacity
to handle the waste generation from the proposed project.
“In the cumulative condition, the Fink Road Landfill has capacity to
operate until the year 2021. The County is pursuing a permit change that
would increase the capacity at the Fink Road [L]andfill on the current plan
within the same footprint. This permit change is currently in the CEQA
process. The term of the increased landfill capacity will be determined by
what is allowed by the permitting agency which could be anywhere from 5
to 15 years. The County has purchased and set aside land for a new landfill
but will not be seeking a permit unless the Fink Road Landfill is not
permitted to expand.
“The county operates the landfill as an enterprise account meaning that the
costs of replacing the landfill are included in the tipping (dumping) fees.
The tipping fees are revised periodically to meet the needs of the landfill
including changes to regulations and the need to expand or replace the
facilities. All contributors to the landfill are charged the tipping fee. The
tipping fee was increased from $30.00/ton to $33.00/ton in July of 2009.
As the proposed project will be served by an existing landfill that has
adequate capacity until 2021 and [the county] is pursuing [a] permit for
more capacity for at least the next 5-15 years, this impact is less than
cumulatively considerable.”
Fujii, Citizens‟ engineering consultant, wrote that he had calculated the likely
solid waste output of the projects in the EIR‟s table and determined that it would equal
around 4,054 tons per year (about 11 tons per day), about four times the output of the
Wal-Mart project. Fujii also opined that the table was incomplete, since it did not include
19.
projects in a number of areas that were served by the Fink Road landfill. He mentioned
several projects in those areas and calculated that their solid waste output was about
4,100 tons per year (also about 11 tons per day). Citizens argues that the EIR‟s
discussion of cumulative solid waste impacts was inadequate because it did not
specifically discuss the disposal of these 22 tons per day of waste.
The purpose of the requirement to consider cumulative impacts is to avoid
carrying out the environmental review of a project “in a vacuum,” since “[o]ne of the
most important environmental lessons that has been learned is that environmental damage
often occurs incrementally from a variety of small sources. These sources appear
insignificant when considered individually, but assume threatening dimensions when
considered collectively with other sources with which they interact.” (Communities for a
Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 114,
overruled on other grounds by Berkeley Hillside Preservation v. City of Berkeley (2015)
60 Cal.4th 1086, 1109, fn. 3.) “[C]onsideration of the effects of a project or projects as if
no others existed would encourage the piecemeal approval of several projects that, taken
together, could overwhelm the natural environment and disastrously overburden the man-
made infrastructure and vital community services.” (Las Virgenes Homeowners
Federation, Inc. v. County of Los Angeles (1986) 177 Cal.App.3d 300, 306.)
The following are provisions of the Guidelines dealing with cumulative impacts:
“„Cumulative impacts‟ refer to two or more individual effects which, when
considered together, are considerable or which compound or increase other
environmental impacts.
“(a) The individual effects may be changes resulting from a single project
or a number of separate projects.
“(b) The cumulative impact from several projects is the change in the
environment which results from the incremental impact of the project when
added to other closely related past, present, and reasonably foreseeable
probable future projects. Cumulative impacts can result from individually
20.
minor but collectively significant projects taking place over a period of
time.” (Guidelines, § 15355.)
“(a) An EIR shall discuss cumulative impacts of a project when the
project‟s incremental effect is cumulatively considerable, as defined in
section 15065(a)(3). Where a lead agency is examining a project with an
incremental effect that is not „cumulatively considerable,‟ a lead agency
need not consider that effect significant, but shall briefly describe its basis
for concluding that the incremental effect is not cumulatively considerable.
[¶] … [¶]
“(2) When the combined cumulative impact associated with the project‟s
incremental effect and the effects of other projects is not significant, the
EIR shall briefly indicate why the cumulative impact is not significant and
is not discussed in further detail in the EIR. A lead agency shall identify
facts and analysis supporting the lead agency‟s conclusion that the
cumulative impact is less than significant.” (Guidelines, § 15130,
subd. (a).)
“„Cumulatively considerable‟ means that the incremental effects of an
individual project are significant when viewed in connection with the
effects of past projects, the effects of other current projects, and the effects
of probable future projects.” (Guidelines, § 15065, subd. (a)(3).)
The EIR‟s discussion was adequate under these standards. The EIR says the
project‟s individual solid waste impact is not significant if the county has landfill
capacity sufficient to serve it. Extending this method of analysis to cumulative impacts,
the EIR would view the project‟s solid waste impact as cumulatively considerable if it
and the other projects taken together would overwhelm the available landfill capacity.
Substantial evidence supported the finding that they would not.
The EIR cited evidence that the Fink Road landfill had capacity of 1,500 tons per
day and actually received 409 tons per day. The project‟s contribution would be slightly
less than three tons per day. Assuming Fujii‟s calculations were correct, the other
projects listed in the EIR would contribute an additional 11 tons per day, plus about 11
more tons from the projects Fujii mentioned that were not listed in the EIR. The landfill
was projected to reach its permitted capacity in 2021, with 5 to 15 years of additional
permitted capacity having been applied for and 20 to 80 years of capacity beyond that in
21.
a new landfill to be sited on land the county had acquired. In light of all this, the city
could reasonably find that the cumulative effect of all these projects would not
overwhelm the county‟s landfill capacity and thus that the project‟s effect was not
cumulatively considerable.
The finding that the impact would not be cumulatively considerable authorized the
city to omit an extensive cumulative-impact discussion. The city was required only to
“briefly describe its basis” for finding no cumulatively considerable impact and to
“briefly indicate why the cumulative impact is not significant and is not discussed in
further detail in the EIR.” (Guidelines, § 15130, subd. (a)(2).) The brief indication
should “identify facts and analysis” supporting the conclusion that there is no significant
cumulative impact. (Ibid.) The EIR‟s discussion was adequate under this standard. It
acknowledged that foreseeable growth would place cumulative demands on the landfill
but projected that the landfill would not reach capacity until 2021 under the existing
permit and stated that a permit extension for 5 to 15 years was in process. Further, the
landfill‟s fee structure was designed to cover the costs of expanding and replacing the
landfill when necessary, in accordance with the actual amount of waste dumped.
IV. Health effects of air pollution
The EIR explained that its standards for determining whether the project‟s
emissions of air pollutants would cause a significant impact were based on appendix G of
the Guidelines. Among other things, these standards required a finding of a significant
impact if the project‟s emissions would result in a violation of any air quality standard or
would cause a cumulatively considerable increase in any pollutant for which the project‟s
region was in nonattainment status under state or federal standards. For several possible
impacts related to the project‟s construction and operation, the EIR found there would be
emissions of regulated pollutants, but these would be less than significant either with or
without mitigation. The main source of pollutants from the operation of the project
would be vehicle emissions from customers‟ cars and delivery trucks. For all the
22.
potential air pollution impacts of the project considered individually (rather than
cumulatively), the EIR found no significant impact.
The EIR did find that the project‟s air pollutant emissions would be cumulatively
considerable and the cumulative impact could not be mitigated to an insignificant level.
It explained that a significant cumulative impact, as defined in CEQA, can result from an
aggregation of impacts not individually significant. If a project‟s emissions would result
in a cumulatively considerable net increase in a pollutant for which the region is in
nonattainment status, then its cumulative impact would be significant. Compliance with
the regulations of the San Joaquin Valley Air Pollution Control District would cause a net
reduction in the project‟s emissions of oxides of nitrogen (NOx) and 10-micron
particulate matter (PM10), which are nonattainment pollutants, but it would not eliminate
these, and additional mitigation would not be feasible. The remaining emissions would
contribute to significant and unavoidable cumulative impact.
For the cumulative impact, the pollutants at issue were NOx and PM10. In a
section describing properties of air pollutants, the EIR contains the following remarks on
NOx and particulate matter (which includes PM10 and PM2.5):
“Health effects associated with NOx are an increase in the incidence of
chronic bronchitis and lung irritation. Chronic exposure to NO2 [one of the
oxides of nitrogen] may lead to eye and mucous membrane aggravation,
along with pulmonary dysfunction.… [¶] … [¶]
“Acute and chronic health effects associated with high particulate levels
include the aggravation of chronic respiratory diseases, heart and lung
disease, and coughing, bronchitis, and respiratory illnesses in children.
Recent mortality studies have shown a statistically significant direct
association between mortality and daily concentrations of particulate matter
in the air.…”
The EIR also includes a discussion of the health effects of ozone. Ozone is
formed in the atmosphere from compounds known as ozone precursors. Oxides of
nitrogen are ozone precursors:
23.
“While ozone in the upper atmosphere protects the earth from harmful
ultraviolet radiation, high concentrations of ground-level ozone can
adversely affect the human respiratory system. Many respiratory ailments,
as well as cardiovascular disease, are aggravated by exposure to high ozone
levels.…”
Citizens argues that the discussion of air pollution impacts is insufficient and
constitutes a failure to proceed according to the law because it does not “correlate the
adverse air quality impacts to resultant adverse health effects.”5
In support of its position, Citizens relies on Bakersfield Citizens, supra, 124
Cal.App.4th 1184.6 In that case, two EIR‟s found that projects would have significant,
unavoidable air quality impacts. Both would have such impacts individually and one
would also do so cumulatively. The Court of Appeal agreed with a challenger‟s assertion
that the EIR‟s omitted required information when they “failed to correlate the identified
adverse air quality impacts to resultant adverse health effects.” The court cited
Guidelines section 15126.2, subdivision (a), which provides that an EIR should discuss
“„health and safety problems caused by the physical changes‟” in the environment arising
from a project‟s significant impacts. (Bakersfield Citizens, supra, at p. 1219.) The court
stated:
“[N]either EIR acknowledges the health consequences that necessarily
result from the identified adverse air quality impacts. Buried in the
description of some of the various substances that make up the soup known
as „air pollution‟ are brief references to respiratory illnesses. However,
there is no acknowledgement or analysis of the well-known connection
5As
a threshold matter, the city and Wal-Mart argue that Citizens failed to exhaust
its administrative remedies on this issue because it placed the issue before the city council
only in the form of a reference to the matter within a proposed draft resolution. Citizens
argues that the discussion in the proposed draft resolution sufficed to bring the issue to
the city‟s attention. We will assume for the sake of argument that Citizens is correct.
6The
California Supreme Court has granted review in a case involving the
discussion in an EIR of the correlation between health problems and a project‟s air
quality impacts, as required by Bakersfield Citizens. (Sierra Club v. County of Fresno
(2014) 226 Cal.App.4th 704, review granted Oct. 1, 2014, S219783.)
24.
between reduction in air quality and increases in specific respiratory
conditions and illnesses. After reading the EIR‟s, the public would have no
idea of the health consequences that result when more pollutants are added
to a nonattainment basin. On remand, the health impacts resulting from the
adverse air quality impacts must be identified and analyzed in the new
EIR‟s.” (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1220.)
Citizens does not make clear what additional discussion it believes the EIR should
have contained. It suggests the EIR should have disclosed “the incremental correlation
between the increase in pollution and the increased risk of health problems it causes.”
This could mean the EIR should have said how many additional cases of each potential
illness the increase in pollutants will cause, how many days of nonattainment will be
added per year by the project‟s pollutants, how much the concentration of these pollutants
in the air will increase, or something similar.
In our view, Bakersfield Citizens does not require this type of quantitative
correlation between air pollution emissions and health effects in this case. The two
projects at issue in Bakersfield Citizens both had significant individual impacts. It might
reasonably be supposed that the proponents of a project are capable of quantifying the
health effects of the air pollution emissions of the project itself, at the individual level.
Here, however, the only significant impact found was the cumulative impact; and this
was not the sort of cumulative impact that could meaningfully be quantified. The finding
of a significant cumulative impact was based on the assumptions that “numerous projects
will be under construction simultaneously with the proposed project throughout the air
basin” and these projects would result in significant and unavoidable impacts. The
number of other projects and the extent of their air pollution emissions was unknown.
We do not think the EIR could reasonably be expected to quantify the health effects of
the project‟s (individually insignificant) contribution to the cumulative impact under
these circumstances.
We need not reach any conclusions about the applicability of Bakersfield Citizens
or Guidelines section 15126.2, subdivision (a), to cumulative impacts in general. We
25.
hold only that, on the facts of this case, the EIR did as much as it could to discuss the
health effects of the project‟s significant air pollution impacts. It named the pollutants
that would contribute to the significant cumulative impact and described ailments
associated with those pollutants. Nothing of a more quantitative nature was called for
under the circumstances.
Citizens‟ briefs could be understood to be making the additional argument that,
although the air pollution impacts at the individual project level were found insignificant,
they could have health effects if they involve any emissions, and therefore the EIR should
have correlated those impacts with health effects as well. We conclude there is no
authority for this notion. Guidelines section 15126.2, on which the Bakersfield Citizens
holding is based, delineates the appropriate discussion in an EIR of significant
environmental effects.
For these reasons, we hold the city did not fail to proceed in accordance with
CEQA with respect to the EIR‟s discussion of the health effects of the project‟s air
quality impacts.
V. Statement of overriding considerations
When an agency chooses to approve a project despite significant environmental
impacts that cannot be avoided via mitigation measures, it must adopt a statement of
overriding considerations explaining its reasons for this choice. (§ 21081, subd. (b);
Guidelines, § 15093.) “Overriding considerations contrast with mitigation and feasibility
findings. They are „larger, more general reasons for approving the project, such as the
need to create new jobs, provide housing, generate taxes, and the like.‟” (Woodward
Park Homeowners, supra, 150 Cal.App.4th at p. 717.) Nevertheless, it is not true “that
an agency‟s unsupported claim that the project will confer benefits is sufficient.” The
considerations named in the statement must be supported by substantial evidence in the
EIR or elsewhere in the record. (Ibid.) Further, the statement must represent a good-faith
effort to inform the public of the agency‟s reasoning. (Id. at pp. 717-718.)
26.
In this case, a statement of overriding considerations was necessary because the
EIR found three types of significant and unavoidable environmental impacts: cumulative
impacts to air quality from operational emissions; individual and cumulative impacts
arising from conversion of farmland to nonagricultural use; and individual and
cumulative impacts to traffic. The city found there were 10 overriding considerations
that justified these impacts. The project would:
● generate sales tax revenue for the city;
● increase the city‟s employment base and create diverse employment
opportunities for city residents;
● provide buffers and transitions between commercial uses and adjacent
residential uses;
● provide an attractive gateway development to the city;
● feature numerous energy conserving measures;
● provide attractive landscaping and amenities onsite and as viewed from
adjacent streets;
● fulfill a general plan goal of creating a regional commercial center that
provides quality goods and services;
● increase retail activity in the project area;
● be a good member of the community; and,
● contribute to the physical identity of the area and result in improvements to
a major corridor.
The city found that “each of the overriding considerations … constitutes a separate
and independent ground for” the finding that the project‟s benefits justified its approval
despite the impacts.
Citizens argues that none of the 10 overriding considerations were supported by
substantial evidence in the record. The city had discretion to base its decision on a single
overriding consideration (Flanders Foundation v. City of Carmel-by-the-Sea (2012) 202
27.
Cal.App.4th 603, 624-625), and the statement included an express finding that each
overriding consideration was sufficient by itself to justify the city‟s decision.
Consequently, it is unnecessary for us to review all 10. We conclude that the first two
overriding considerations—generation of tax revenue and jobs—were supported by
substantial evidence.
Substantial evidence supported the city‟s finding that the project would generate
increased sales tax revenue. The city relied on a sales tax analysis prepared by Bay Area
Economics. This analysis predicted that the project, when complete, would cause a net
increase in taxable sales in Ceres of about $34 million per year. The city calculated that
these sales would generate new city sales tax revenue of about $327,000. The analysis is
substantial evidence in support of the finding. The administrative record also contains a
report commissioned by Wal-Mart analyzing the effect of new Wal-Mart Supercenters on
taxable sales in California. The report found that in cities throughout California,
including the Central Valley, taxable sales increased over multiple years after the opening
of a Wal-Mart Supercenter.
Citizens argues that the project will not cause a net increase in taxable sales
because the portion of the new Wal-Mart selling nongrocery items will be about the same
size as the old Wal-Mart, and the grocery portion will sell mainly nontaxable
merchandise. Further, the EIR states that the new Wal-Mart will probably generate lower
sales per square foot than the old because its location means it is likely to lose some sales
to Wal-Mart stores in Modesto. Citizens maintains that any increase in taxable sales
would have to come from the project‟s non-Wal-Mart stores, and the time when these
will be built and occupied, if ever, is unknown.
The Bay Area Economics report indicates, however, that despite the loss of some
Modesto shoppers, the nongrocery part of the new Wal-Mart will still generate a margin
of about $8 million in new taxable sales over and above the sales it will capture from
other general merchandise stores in Ceres, including the old Wal-Mart. In addition, a
28.
portion of the sales from the grocery section of the new Wal-Mart will be taxable and will
result in a net increase in taxable sales of about $3 million. The remainder of the $34
million net increase is indeed based on projected sales from stores and restaurants that
will occupy the remainder of the shopping center. We do not believe the city was
required to assume these would never really be built and never generate any sales. The
city‟s approval of the project authorized their construction and, as the city and Wal-Mart
point out, the EIR as a whole based its impact findings on the assumption that the entire
project would be built. It was logical to use the same assumption when tallying the
project‟s benefits.
Substantial evidence also supports the finding that the project will create job
opportunities. It is undisputed that building the project will create construction jobs that
would not exist if the project were not built. Further, the EIR states that the new Wal-
Mart will employ 85 people in addition to the 375 employed at the old Wal-Mart (for a
total of 460), and that the other stores in the shopping center, when built, will employ
about 120 people. Thus the project will create 205 retail jobs.
Citizens does not dispute these figures, but argues instead that an increase in part-
time positions at Wal-Mart is likely to cause a loss of full-time positions at other retailers.
When asked by city staff how many of the new and old employees would be full time and
how many part time, Wal-Mart declined to say. It answered only that “„[m]ore than 60
percent‟” of its store workers in California are full-time employees. On this basis,
Citizens argues that all of the 85 new Wal-Mart jobs could be part-time (since 85 is less
than 40 percent of 460). Citizens then cites a report it presented to the city during the
administrative proceedings. This report, commissioned in 2000 by the San Diego County
Taxpayers Association (SDCTA), cited another study in which it was found that, for
every part-time job created by a new large-scale discount store, 1.5 full-time jobs in small
retail outlets were lost. Applying this, Citizens contends that 127 full-time jobs will be
destroyed when the new Wal-Mart opens with 85 new part-time workers. Regarding the
29.
other stores in the shopping center, Citizens again says there is only speculation that these
will ever be built.
The city and Wal-Mart maintain that the 2000 SDCTA report should be
disregarded because it is outdated. They cite a letter SDCTA sent to the mayor of San
Diego in 2003 saying it no longer relied on the study because of the age of the data on
which the study relied. On the issue of the other stores in the shopping center, the city
and Wal-Mart say it would be unreasonable to exclude them from consideration, since the
project presupposes their eventual construction and they will create jobs when built and
occupied.
It is not our role to make a factual finding about whether the project will truly
benefit or harm the job market. It is not enough for a challenger to present some
evidence opposed to the agency‟s findings, for we do not resolve conflicts in the evidence
under the substantial evidence standard. The only question is whether the record contains
substantial evidence of a probable benefit. It does.
The two overriding consideration we have discussed—generation of tax revenue
and creation of jobs—are the classic types of overriding considerations contemplated by
CEQA. (See Woodward Park Homeowners, supra, 150 Cal.App.4th at p. 717.) These
posit that tangible benefits of the project outweigh its negative effects. Most of the
remaining overriding considerations are of a more nebulous nature. Because of our
holding that two of the considerations are sufficiently supported, we need not consider
the others.
VI. Order taxing costs
Wal-Mart argues that the trial court erred when it applied Hayward Area Planning
to bar an award of costs to Wal-Mart for preparation of the administrative record. We
agree.
Section 21167.6 includes the following provisions regarding preparation of the
administrative record for purposes of CEQA actions:
30.
“(a) At the time that the action or proceeding is filed, the plaintiff or
petitioner shall file a request that the respondent public agency prepare the
record of proceedings relating to the subject of the action or proceeding.…
[¶] (b)(1) The public agency shall prepare and certify the record of
proceedings .… The parties shall pay any reasonable costs or fees imposed
for the preparation of the record of proceedings in conformance with any
law or rule of court. [¶] (2) The plaintiff or petitioner may elect to prepare
the record of proceedings or the parties may agree to an alternative method
of preparation of the record of proceedings, subject to certification of its
accuracy by the public agency .… [¶] … [¶] (f) In preparing the record of
proceedings, the party preparing the record shall strive to do so at
reasonable cost in light of the scope of the record.”
In Hayward Area Planning, the plaintiffs sued the City of Hayward under CEQA,
challenging the city‟s approval of a developer‟s project. The plaintiffs requested that the
city prepare the administrative record. The city asked the law firm representing the
developer to prepare the record. The city and developer prevailed in the trial court and
the developer filed a cost bill seeking to recover against the plaintiffs the $50,193 it paid
to its lawyers for preparation of the record, plus $228 in filing fees. (Hayward Area
Planning, supra, 128 Cal.App.4th at pp. 179-180.) The plaintiffs filed a motion to tax
costs, arguing among other things that the developer was not entitled to recover the cost
of preparing the administrative record because that preparation was the responsibility of
the public agency, not the project applicant, under section 21167.6. The trial court
disagreed but found that the city should have notified the plaintiffs of its intention to
delegate record preparation to the developer; also, the amount requested by the developer
was unreasonable. The trial court directed the developer to file a revised cost bill. The
plaintiffs appealed, contending the developer was not entitled to any recovery for
preparing the administrative record. (Hayward Area Planning, supra, at pp. 180-181.)
The Court of Appeal agreed with the plaintiffs. It first stated that section 21167.6
provided only three alternatives for preparation of the administrative record: the agency
can prepare it; the plaintiff can prepare it subject to the agency‟s certification; or the
agency and plaintiff can agree on a different procedure. The court pointed out that
31.
preparation by a real party in interest (i.e., a project applicant like the developer) was not
among the options. (Hayward Area Planning, supra, 128 Cal.App.4th at p. 183.)
Next, the Court of Appeal found that section 21167.6 was ambiguous on the
question of whether a real party in interest could recover the cost of preparing the
administrative record from a defeated plaintiff, if it should end up bearing that cost. On
the one hand, the statute allowed recovery “in conformance with any law or rule of court”
(§ 21167.6, subd. (b)(1)), a phrase that did not impose any limit on the parties who could
recover. On the other hand, the provision allowing recovery of costs was part of the
subdivision that said the public agency can prepare the record, which could be taken to
imply that the public agency is also the party that can recover the cost of preparation.
(Hayward Area Planning, supra, 128 Cal.App.4th at p. 183.)
The court resolved the ambiguity by finding that the policies of CEQA are best
served by a rule that “the public agency must itself incur and seek recovery of the costs of
record preparation when the record is prepared under subdivision (b)(1).” (Hayward
Area Planning, supra, 128 Cal.App.4th at p. 185.) The court adduced several
considerations in favor of this rule. First, the agency has incentives for minimizing costs
that the applicant lacks. A public agency has a duty to act in the public interest and is
accountable to its constituents if it fails to conserve public funds. (Id. at p. 184.) The
applicant, by contrast, is free to act solely for its own private interest. (Id. at p. 185.)
Further, when the agency prepares the record at its own expense, it knows it will have to
justify any recovery in a public forum under the potential scrutiny of its constituents.
This could be a motivation to avoid accumulating costs that are “exorbitant,” like those
claimed in the case. (Ibid.) Finally, allowing the applicant to prepare the record and
recover the cost would undermine the statutory purpose of expediting CEQA litigation.
(See § 21167.1, subd. (a) [CEQA actions to be given scheduling priority over other civil
actions].) Because the applicant was preparing the record, “the mounting costs of record
preparation did not come under scrutiny until the end of the trial court proceedings”;
32.
whereas the agency or plaintiffs, had they prepared it, “would have had reason to control
those costs as the record was being prepared, promoting efficiency and limiting the need
for time consuming litigation and judicial intervention.” (Hayward Area Planning,
supra, at p. 185.) The court also stated that delegation of the preparation of the record to
the applicant undermined the statutory scheme because the plaintiffs were not informed
of the delegation in advance and had no opportunity to choose to prepare the record
themselves to avoid having the applicants do it. (Id. at p. 184.)
In its written order granting Citizens‟ motion to tax costs, the trial court quoted the
Hayward Area Planning opinion‟s rule that “the public agency must itself incur and seek
recovery of the costs of record preparation when the record is prepared under
subdivision (b)(1).” (Hayward Area Planning, supra, 128 Cal.App.4th at p. 185.) The
trial court observed that the city in this case did incur the cost of preparing the record
when it gave the task to its outside counsel, but it did not seek recovery of the cost. Wal-
Mart was doing that.
As we will explain, we disagree with the limitation in Hayward Area Planning on
which prevailing parties are entitled to seek an award of the cost of preparing the
administrative record. Hayward Area Planning got it right when limiting awardable
administrative record costs to situations in which the record was prepared in a statutorily
approved manner, but not when excluding real parties in interest from the set of
prevailing parties to which an award can be made.
A central premise of Hayward Area Planning is that, under section 21167.6, a
party can be awarded the cost of preparing the administrative record only if it was
prepared in one of the ways described in that section: by the agency, by the plaintiff, or
by another method agreed on by the agency and the plaintiff. This premise is not
explicitly stated in the opinion, but it is a necessary support for the holding of the case.
Here, the record was prepared by one of the statutorily approved methods: The agency
33.
prepared it. An award of costs to Wal-Mart thus would be consistent with this central
premise.
In addition to stating the proper methods for preparing the administrative record
(and thereby limiting the situations in which an award of costs for preparing it can be
made), section 21167.6 provides that “[t]he parties shall pay any reasonable costs or fees
imposed for the preparation of the record of proceedings in conformance with any law or
rule of court.” (§ 21167.6, subd. (b)(1).) Here, the law under which Wal-Mart applied
for a costs award was Code of Civil Procedure sections 1032 and 1033.5. Citizens does
not argue that a prevailing real party in interest that has reimbursed a coparty for
otherwise allowable costs cannot recover those costs from an opposing party under those
statutes. We see nothing in section 21167.6 from which we could infer a limitation on
the identity of the prevailing parties that can recover administrative record costs under
Code of Civil Procedure sections 1032 and 1033.5, so long as the record has been
prepared in one of the three specified ways.
Hayward Area Planning holds that one reason a real party in interest should not be
allowed, absent an agreement between the agency and plaintiff, to seek an award of
administrative record costs paid to the agency is that the agency should be obliged to
appear in a public forum to seek recovery in its own name. This, the court believed,
would encourage public agencies to minimize the cost of preparing the record. (Hayward
Area Planning, supra, 128 Cal.App.4th at p. 185.) This rule might or might not be good
public policy, but we do not see how section 21167.6 implies it. Even if section 21167.6
reflects a cost-reducing motivation, it would be beyond the usual limits of judicial
interpretation to discover in this motivation an unstated prohibition on real parties in
interest submitting cost bills after reimbursing public agencies for preparing the
administrative record.
Citizens argues that, just as the Hayward Area Planning court believed the real
party there lacked a public agency‟s motivation to minimize costs in preparing the record,
34.
here the city‟s incentive to reduce costs was weakened because of the reimbursement
agreement. The city knew it would be reimbursed in full, win or lose. Citizens says the
cost-reducing spirit of section 21167.6 is against allowing recovery under those
circumstances. In our view, the trial court‟s power under section 21167.6,
subdivision (b)(1), and Code of Civil Procedure section 1033.5 to reduce unreasonable
costs suffices to mitigate this concern.
Citizens says it did not have a chance to agree to the procedure by which the city
would prepare the record and Wal-Mart would reimburse it. Citizens relies on the
remarks in Hayward Area Planning about how the plaintiff in that case was not consulted
before the agency entrusted the developer with the task of preparing the record.
(Hayward Area Planning, supra, 128 Cal.App.4th at p. 184.) We do not think this was
required in this case. We agree with the Hayward Area Planning court‟s view that
section 21167.6 would require the plaintiff‟s agreement before an agency could delegate
record preparation to a real party, but this does not imply anything about a real party
covering an agency‟s costs after the record is prepared by the agency and then applying
for a cost award as a prevailing party.
Code of Civil Procedure section 1032 states that a prevailing party is “entitled” to
a cost award “as a matter of right” in “any action or proceeding,” except “as otherwise
expressly provided by statute.” (Code Civ. Proc., § 1032, subd. (b).) The key premise of
Hayward Area Planning—that administrative record costs can be recovered by a
prevailing party only if the record was prepared in one of the approved ways—can rightly
be seen as a specific limitation on cost awards imposed by section 21167.6; but we do not
think a prevailing party‟s right to recover costs can be squared with an additional rule that
a prevailing real party is barred from recovery by section 21167.6 even if the
administrative record was prepared in one of the approved ways.
For these reasons, we will reverse the order granting Citizens‟ motion to tax costs.
Because the trial court had no occasion previously to consider whether the claimed
35.
administrative record costs were reasonable, we will remand to allow that determination
to be made.
DISPOSITION
The judgment in case No. F070988 is affirmed. The order to tax costs in case
No. F071600 is reversed and the case is remanded for further proceedings consistent with
this opinion. Respondents are awarded costs on appeal in both cases.
_____________________
Smith, J.
I CONCUR:
_____________________
Poochigian, Acting P.J.
36.
FRANSON, J., Concurring.
I concur in the decision to affirm, but write separately to state my views on the
matters addressed in part IV of the majority opinion. These views address an
environmental impact report‟s (EIR) discussion of the correlation between the project‟s
air quality impacts and the indirect impacts to human health, a topic currently pending
review by the California Supreme Court in Sierra Club v. County of Fresno (2014) 226
Cal.App.4th 704, review granted October 1, 2014, S219783.1
I. CORRELATING A PROJECT‟S AIR POLLUTANTS TO HEALTH IMPACTS
Drafters of an EIR have several ways to categorize environmental impacts. For
instance, environmental impacts can be classified as (1) on-site or off-site, (2) indirect or
direct, (3) construction or operational,2 or (4) project-level or cumulative. (See
Guidelines,3 Appen. G., instruction 2.)
In this case, the EIR separately addressed project-level impacts and cumulative
impacts.4 It also subdivided the discussion of project-level impacts into a construction
1 If Citizens seeks review of the air quality issues in the present case, our Supreme
Court might grant review and defer briefing pending a decision in Sierra Club due to the
possibility that the issues presented for review in this case will be affected by the
conclusions and analysis adopted in deciding Sierra Club.
2 These first three binary classifications are based on (1) the relative location of the
project and the impact, (2) the number of links in the causal chain connecting the impact
to the project, and (3) the chronology of the impact as the project must be built before it
can operate.
3 The term “Guidelines” refers to the regulations that implement the California
Environmental Quality Act (CEQA) and are codified in California Code of Regulations,
title 14, section 15000 et seq.
4 Project-level impacts are the direct (primary) and indirect (secondary) “effects
which are caused by the project.” (Guidelines, § 15358, subd. (a).) Cumulative impacts
are two or more individual impacts which, when taken together, are considerable, or
which increase other environmental impacts. (Guidelines, § 15355.) A cumulative
impact addressed in an EIR is the incremental impact of the project (i.e., the project-level
impact) added to the collective impact of closely related past, present and reasonably
1
phase and operational phase. Consequently, the following description of the contents of
the EIR and the findings in the city‟s resolution is organized by addressing project-level
construction and operational impacts and then cumulative impacts. The distinction
between direct and indirect impacts is relevant to the discussion in part I.B.2, post, about
human health problems.
A. Contents of the EIR and City‟s Findings
The EIR addressed the air quality impacts of the project‟s construction and its
operation separately. The city council resolution certifying the final EIR tracked the
EIR‟s format by separately addressing construction and operational impacts to air quality.
Accordingly, the facts material to the project‟s emission of air pollutants, and the
thresholds of significance applied to those emissions, are described for both the
construction and operational phases of the project. The facts about the project‟s
individual impacts are followed by a description of the project‟s contribution to
cumulative air quality impacts.
1. Project-Level (i.e., Individual) Construction Impacts
The city council resolution stated that the construction of the project would result
in emissions of criteria air pollutants potentially violating or contributing to an existing
violation of one or more air quality standards. The resolution addressed this potential
impact by describing mitigation measures and then found that the mitigation, “which has
been required in or incorporated into the Project, will reduce the significant
environmental impact to a less-than-significant level.” This finding of an insignificant
air quality impact was supported by reference to a table in the EIR showing “emissions
resulting from Project construction would not exceed criteria pollutant thresholds
foreseeable future projects. (Id., subd. (b).) A cumulative impact can become
“significant” for purposes of CEQA when individually minor impacts accumulate over
time. (Ibid.)
2
established by SJVAPCD.”5 Therefore, the city‟s ultimate finding of a less-than-
significant impact was based on the thresholds of significance established by SJVAPCD
for criteria air pollutants.6
The SJVAPCD‟s thresholds of significance for reactive organic gases (ROG),
oxides of nitrogen (NOx), and particulate matter with a diameter of 10 microns or smaller
(PM10) are 10, 10, and 15 tons per year, respectively. In the final EIR, these thresholds
were compared to the estimated emissions from the construction of the project for both
2008 and 2009 and the estimated yearly emissions were well below the thresholds. For
instance, the 2008 construction emissions for ROG, NOx and PM10 were estimated at
1.56, 4.43 and 1.76 tons, respectively.
2. Project-Level (i.e., Individual) Operational Impacts
As to operational emissions, the city council resolution stated the project would
result in long-term emissions of criteria air pollutants that could violate or substantially
contribute to an existing violation of one or more air quality standards. The resolution
stated that vehicle emissions would account for a majority of the project‟s operational
emissions, which also would include emissions from the fuel used in landscaping
equipment and the evaporation of solvents in paint and other surface coatings used to
maintain the buildings. As to the magnitude of the operational emissions, the resolution
stated: “The total emissions from the Project exceed the SJVAPCD‟s thresholds for
reactive organic gases (ROG) and oxides of nitrogen (NOx). In addition, the Project
would emit a significant amount of particulate matter (PM)10 and PM2.5 that would
5 SJVAPCD is the acronym for the San Joaquin Valley Air Pollution Control
District.
6 Public agencies are “encouraged to develop and publish thresholds of significance
that the agency uses in the determination of the significance of environmental effects.”
(Guidelines, § 15064.7, subd. (a).) The city‟s adoption in the EIR of the SJVAPCD‟s
thresholds of significance is consistent with subdivision (c) of Guideline section 15064.7.
3
contribute to the SJVAPCD‟s existing air quality violations for particulate matter.” The
resolution then discussed various mitigation measures and Wal-Mart‟s ISR (indirect
source review) application showing compliance with SJVAPCD Rule 9510. The
resolution found that the ISR application “demonstrates that the Project‟s operational
emissions will be less-than-significant.”
The foregoing determinations relating to the significance of operational emissions
of ROG, NOx and PM10 were based on (1) estimates of those emissions derived from
models and (2) a comparison of those estimates to the thresholds of significance adopted
by the SJVAPCD. For example, the final EIR stated that “the refined URBEMIS model
run shows that the operational impacts associated with the project are less than
significant.”
The estimates of the project‟s annual operational emissions of ROG, NOx and
PM10, after mitigation, were 9.97, 9.67 and 5.16 tons, respectively. (Table 4.2-8 of the
final EIR.) The predicted emissions did not exceed the SJVAPCD‟s thresholds of
significance, but the amounts of ROG and NOx barely fell below the 10-ton-per-year
thresholds.7 The mitigation measures were important to the significance determination as
Table 4.2-7 shows that the predicted levels of ROG and NOx prior to mitigation exceeded
the SJVAPCD‟s thresholds.
3. Cumulative Impacts
Section 4.2.4 of the EIR addressed cumulative air quality impacts and recited the
CEQA definition of cumulative impacts as “two or more individual effects which, when
7 The important of choosing a model is illustrated by comparing the final EIR‟s
reliance on the refined URBEMIS model with the draft EIR‟s use of the URBEMIS 2007
model. The 2007 model estimated peak operational emissions (without mitigation) of
ROG, NOx and PM10 at 31.99, 54.69 and 23.68 tons per year, respectively. Table 4.2-7
of the final EIR provided revised estimates of the peak operational emissions (without
mitigation), which were 11.63, 15.15 and 6.31 tons of ROG, NOx and PM10, respectively.
4
considered together, are considerable or which compound or increase other
environmental impacts.” (Guidelines, § 15355.) The EIR explained that a significant
cumulative impact, as defined in CEQA, can result from an aggregation of impacts not
individually significant. It also noted that the SJVAPCD considered certain individually
insignificant air quality impacts to also have a significant cumulative air quality impact.
As a standard of significance, the EIR stated that a significant cumulative impact to air
quality would result if the proposed project would cause a cumulatively considerable net
increase in any criteria pollutant for which the San Joaquin Valley air basin is in
nonattainment under applicable federal or state air quality standards.
Section 4.2.4 of the EIR stated the assumptions “that numerous projects will be
under construction simultaneously with the proposed project throughout the air basin”
and these projects would result in significant and unavoidable impacts despite being
subject to the same SJVAPCD rules and regulations that apply to the present project. As
to the project‟s emissions of NOx and PM10, which are nonattainment pollutants, the EIR
stated that compliance with SJVAPCD‟s rules and regulations would reduce but not
eliminate the emissions, and additional mitigation would not be feasible. Ultimately, the
EIR concluded that “the proposed project‟s cumulative impact to air quality from
operational emissions is considered cumulatively considerable and significant and
unavoidable.”
The foregoing approach to cumulative air quality impacts is not consistent with the
EIR‟s general statement that “[p]ast, present and probable future projects will be
considered when determining the cumulative setting and the proposed project‟s
contribution to identified cumulative impacts. The context of particular impact analysis
will determine which of [the 17] projects [listed in Table 4.0-1] are relevant to that
analysis.” (See Guidelines, § 15130, subd. (b)(1)(A) [discussion of cumulative impacts
based on a list of past, present and probable future projects producing related or
5
cumulative impacts].) The EIR used assumptions to avoid identifying the emission levels
of the other projects and comparing those levels to the SJVAPCD‟s thresholds of
significance. Whether this approach to cumulative air quality impacts complies with
Guidelines section 15130‟s requirements for discussing cumulative impacts is not an
issue raised by Citizens in this appeal. The omission of this information is noted here
because it deprives the reader of the EIR of a sense of proportion about this project‟s
contribution to a significant cumulative impact of unstated volume.
B. Big Picture Points
1. Units of Measurement
Generally, an EIR‟s discussion of a particular impact and the related threshold of
significance, is put in its environmental context by the EIR‟s description of the
environmental setting and the baseline used for the impact. The units of measurement
chosen to describe (1) the impact—that is, the physical change to the environment, (2) the
threshold of significance, and (3) the baseline, affect how rapidly decisionmakers and the
public can understand the change and put in it perspective. (See Guidelines, § 15140
[EIR‟s shall be written so that they can be rapidly understood].) Typically, an EIR
discusses an environmental impact by using the same units of measurement to describe
(1) the physical change resulting from the project, (2) the thresholds of significance, and
(3) the baseline conditions. (E.g., Gray v. County of Madera (2008) 167 Cal.App.4th
1099, 1123 [existing noise levels and predicted increase stated in decibels].) When
information is presented using the same units, readers immediately have an idea of how
large the physical change is compared to existing conditions and, as a result, have a sense
of proportion as to the scope of the physical change caused by the project.
Air quality impacts in the San Joaquin Valley air basin are not discussed in the
EIR using this basic approach. Here, the EIR presented baseline data about air pollutants
in parts per million or microgram per cubic meter. In contrast, tons per year are used to
6
state (1) the thresholds of significance and (2) the physical changes resulting from the
project (i.e., the amount of pollution emitted). As a result, a decisionmaker or member of
the public reading the EIR‟s description of emissions data in tons per year will not be
informed of how those emissions will change the baseline air quality figures. Thus, the
way information is presented about the impact, the threshold of significance and the
baseline does not create a sense of proportion as to the physical changes caused by the
project‟s air pollutant emissions.8
I make this general point about air quality discussions because it has consequences
that affect the disclosures necessary to adequately inform the reader of an EIR about the
health problems caused by the project‟s impact on air quality.
2. How to Conceptualize Health Problems for Purposes of CEQA
Another aspect of the larger picture relates to how CEQA conceptualizes health
problems caused by air pollution. Identifying that concept is a first step towards
understanding how those health problems fit into CEQA‟s regulatory context and is a
useful foundation for the questions of regulatory interpretation presented in this case.
Health problems are a type of environmental effect—specifically, an indirect (i.e.,
secondary) effect. (Guidelines, § 15358, subd. (b)(2) [definition of indirect effect].)
First, a project causes a direct physical change in the environment by emitting pollutants
into the air. Air is a part of the “environment” protected by CEQA. (Guidelines, § 15360
[definition of environment].) Second, the physical change to the air‟s composition
8 An EIR, of course, can provide additional information that provides a sense of
proportion. For example, an EIR certified in 1988 for a coal-fired powerplant compared
the project‟s emissions for certain criteria pollutants to the total regional emissions of the
pollutants. (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692,
714 (Farm Bureau)).) It also provided figures about ambient PM10 that “indicate[d] the
project would cause a 1 to 2 percent increase.” (Ibid.) This information provided some
sense of proportion between the physical changes caused by the project to the baseline air
quality conditions.
7
induces changes in human health. The changes in human health are regarded as an
indirect effect resulting from the project.
Therefore, a discussion of human health problems caused by the physical changes
in air quality that result from a project‟s emissions is simply a discussion of an indirect
environmental impact. The importance of impacts on human health is incontrovertibly
established by CEQA‟s policy statement about the necessity of providing “a high-quality
environment that at all times is healthful .…” (Pub. Resources Code, § 21000, subd.
(b).)9 In short, human health is one of the basic reasons why California has an
environmental protection statute and, therefore, it should not be given short shrift.
C. Issues Presented
The facts of this case and the arguments about correlating air quality impacts to
resultant health problems raise two issues of interpretation involving the scope of the
disclosure provisions in subdivision (a) of Guidelines section 15126.2 (Guideline
15126.2(a)). First, do the disclosure provisions of Guideline 15126.2(a) apply when a
significant air quality impact is found to have been rendered less than significant by
mitigation measures. Second, do the disclosure provisions apply when an air quality
impact is not individually significant, but is a cumulatively considerable part of a
significant cumulative impact? In the factual context of this case, I answer both
questions “no.” As a result, Citizens‟ challenge to the EIR‟s discussion of air quality
impacts fails.
D. Overview of Relevant Sources of Law
1. Case Law
In Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124
Cal.App.4th 1184 (Bakersfield Citizens) this court concluded that the EIR‟s for two
9 All further statutory references are to the Public Resources Code unless noted
otherwise.
8
proposed shopping centers containing Wal-Mart Supercenters “omitted relevant
information when they failed to correlate the identified adverse air quality impacts to
resultant adverse health impacts” and the omission could not be dismissed as a harmless
or insignificant defect. (Id. at pp. 1219, 1220.) We explicitly identified Guideline
15126.2(a) as the legal basis for the conclusion. (Bakersfield Citizens, supra, at p. 1219.)
Therefore, the dispute in the instant case about the need for a discussion that
correlates the adverse air quality impacts to resultant adverse health impacts is, at bottom,
a dispute about the meaning and the application of the disclosure provisions in Guideline
15126.2(a). The words of a regulation or statute are the starting point for determining the
meaning. (Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, 1513.) Also,
particular provisions of a regulation must be construed within the context of the broader
regulatory and statutory scheme. (See El Morro Community Assn. v. California Dept. of
Parks & Recreation (2004) 122 Cal.App.4th 1341, 1354 [courts must be mindful of the
purposes of the statute when interpreting Guidelines].) Based on these principles, the
relevant text from the Guidelines and CEQA is set forth below. Determining the
meaning of the text in Guideline 15126.2(a) presents a question of law subject to
independent review on appeal. (San Francisco Beautiful v. City and County of San
Francisco (2014) 226 Cal.App.4th 1012, 1021 [interpretation of language in the
Guidelines presents a question of law subject to de novo review].)
2. Regulatory Text of Guideline 15126.2(a)
Guideline 15126.2(a) addresses the contents of an EIR. Its heading, along with its
first and third sentence, provide:
“(a) The Significant Environmental Effects of the Proposed Project. An
EIR shall identify and focus on the significant environmental effects of the
proposed project.… Direct and indirect significant effects of the project on
the environment shall be clearly identified and described, giving due
consideration to both the short-term and long-term effects.” (Italics added.)
9
The use of “shall” in these sentences demonstrates that the prescribed EIR
contents are mandatory—that is, “all public agencies are required to follow” them.
(Guidelines, § 15005, subd. (a) [definition of “shall”].) The directive that significant
environmental effects “be clearly identified and described” is elaborated by the fourth
sentence Guideline 15126.2(a), which states:
“The discussion should include relevant specifics of [1] the area, [2] the
resources involved, [3] physical changes, [4] alterations to ecological
systems, and [5] changes induced in [a] population distribution, [b]
population concentration, [c] the human use of the land (including
commercial and residential development), [d] health and safety problems
caused by the physical changes, and [e] other aspects of the resource base
such as water, historical resources, scenic quality, and public services.”10
(Italics added.)
Distilling this language down to the phrases essential to the present appeal, an
EIR‟s “discussion should include relevant specifics of … changes induced in … health …
problems caused by the physical changes.” (Guideline 15126.2(a).) The use of the word
“should,” rather than “shall,” does not mean public agencies have the discretion to ignore
the sentence. (Cf. Guidelines, § 15005, subd. (c) [definition of “[m]ay”].) The word
“[s]hould” is used to identify guidance “based on policy considerations contained in
CEQA” and “agencies are advised to follow this guidance in the absence of compelling,
countervailing considerations.”11 (Guidelines, § 15005, subd. (b) [definition of
10 The structure of the list contained in the fourth sentence of Guideline 15126.2(a)
might appear cumbersome at first reading. It is a list of five topics, with the fifth being a
sublist of indirect effects. (See Guidelines, § 15358, subd. (a)(2) [definition of indirect
effect].) The third sentence refers to “[d]irect and indirect significant effects of the
project” and, thus, foreshadows the fourth‟s sentence inclusion of a sublist of specific
types of indirect effects.
11 In this case, I have located no statement in the EIR or finding in the city council‟s
resolutions that the recommended discussion could not be provided because of
compelling, countervailing considerations. Thus, a failure to include the discussion
described in the fourth sentence cannot be justified by relying on the exception created by
Guideline 15126.2(a)‟s use of the word “should.”
10
“[s]hould”].) This definition‟s reference to “policy considerations contained in [CEQA]”
leads directly to the policy statements included in CEQA by the Legislature.
3. CEQA’s Policy Statements
The legislative policy statements that are relevant to the interpretation and
application of Guideline 15126.2(a) include CEQA‟s first two subdivisions, which
provide: “(a) The maintenance of a quality environment for the people of this state now
and in the future is a matter of statewide concern. [¶] (b) It is necessary to provide a
high-quality environment that at all times is healthful and pleasing to the senses and
intellect of man.” (§ 21000, italics added.) These provisions establish the basic ideas
that (1) people are the most important life form for purposes of CEQA and (2) human
health is a primary reason for protecting the environment.
Next, section 21000, subdivision (c) provides: “There is a need to understand the
relationship between the maintenance of high-quality ecological systems and the general
welfare of the people of the state, including their enjoyment of the natural resources of
the state.” In my view, air is part of an “ecological system” for purposes of this
subdivision and the term “general welfare of the people” encompasses human health.
Thus, this general policy statement about understanding relationships supports an
interpretation of the Guidelines to mean that an EIR should help the reader (whether a
decisionmaker or a member of the public) understand the relationship (i.e., the
correlation) between air quality impacts and human health.
The policy statements in section 21002.1 address the purpose of an EIR and,
therefore, are relevant to interpreting and applying Guideline 15126.2(a), which
addresses the contents of an EIR. Section 21002.1, subdivision (e) states:
“To provide more meaningful public disclosure, reduce the time and cost
required to prepare an environmental impact report, and focus on
potentially significant effects on the environment of a proposed project,
lead agencies shall, in accordance with Section 21100, focus the discussion
11
in the environmental impact report on those potential effects on the
environment of a proposed project which the lead agency has determined
are or may be significant. Lead agencies may limit discussion on other
effects to a brief explanation as to why those effects are not potentially
significant.” (Italics added.)
The repeated references to significant environmental effects correspond to the use
of the word “significant” in the first and third sentences of Guideline 15126.2(a). The
reference to “meaningful public disclosure” also is addressed in section 21003,
subdivision (b), which states it is the policy of California that EIR‟s and other CEQA
documents “be organized and written in a manner that will be meaningful and useful to
decisionmakers and to the public.”
In summary, the foregoing statements of policy in CEQA help interpreting and
applying Guideline 15126.2(a) because of (1) the use of the word “should” in its fourth
sentence is a reference to those policy statements, (2) there are parallels in the language
used in CEQA and Guideline 15126.2(a), and (3) the general principle that the Guidelines
must be interpreted to implement the purposes of CEQA.
4. Invention Versus Interpretation
Having laid the textual foundation, both regulatory and statutory, for an analysis of
the air quality issues presented in this appeal, this concurrence circles back to Bakersfield
Citizens and addresses the controversy about what that decision did when it concluded
the EIR‟s failed “to correlate the [significant] adverse air quality impacts to resulting
adverse health consequences” and such an omission could not “be dismissed as
harmless.” (Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1220.) Specifically, did
this court violate CEQA by inventing “procedural or substantive requirements beyond
those explicitly stated in [CEQA] or in the state guidelines”? (§ 21083.1, added by Stats.
1993, ch. 1070, § 2, p. 5917.) Alternatively, did this court interpret general language in
Guideline 15126.2(a) and state how that interpretation applied to a specific type of
environmental impact (i.e., air pollution) and its consequences (i.e., health problems)?
12
In my view, Bakersfield Citizens did not violate section 21083.1 by inventing a
new disclosure requirement for EIR‟s. Instead, it (1) interpreted the mandatory language
about clearly identifying and describing significant environmental effects and (2) because
compelling, countervailing considerations were not presented, referred to the guidance in
the fourth sentence of Guideline 15126.2(a) to determine the meaning of the phrase
“clearly identified and described.” Then, the court applied its interpretation of Guideline
15126.2(a) to the facts presented. That application led the court to conclude the EIR‟s
“omitted relevant information when they failed to correlate the identified adverse air
quality impacts to resultant adverse health effects.” (Bakersfield Citizens, supra, 124
Cal.App.4th at p. 1219.)
My view of the analytical steps inherent in Bakersfield Citizens comports with the
wording of that opinion and Guideline 15126.2(a). First, the court‟s phrase “relevant
information” is the equivalent of regulatory phrase “relevant specifics.” (Bakersfield
Citizens, supra, 124 Cal.App.4th at p. 1219.) Second, Guideline 15126.2(a) uses the
word “identified” in connection with significant environmental effects, while the court‟s
conclusion used “identified” in connection with a specific environmental effect—namely,
“identified adverse air quality impacts.” (Bakersfield Citizens, supra, at p. 1219.) Third,
the court twice used of the word “correlate” in reference to “adverse air quality impacts”
and then used the words “resultant” and “resulting” immediately before “adverse health
effects” and “adverse health consequences,” respectively. (Id. at pp. 1219, 1220.) The
court‟s choice of words rephrased the regulation‟s use of “induced in” after “changes”
and its use of “caused by the physical changes” after health problems. (Guideline
15126.2(a).) The words “correlate,” “resultant” and “resulting”—like the phrases
“induced in”12 and “caused by”—were chosen to indicate a connection between two or
12 Guideline 15126.2(a) uses of the phrase “changes induced in” demonstrates that
“health problems” are regarded as an indirect effect. The definition of indirect effect in
13
more things. In the factual setting of Bakersfield Citizens, the two things were air quality
impacts and adverse health consequences. Therefore, I do not read Bakerfield Citizens as
inventing a new disclosure requirement—the disclosure described in Bakerfield Citizens
and its progeny is required by Guideline 15126.2(a).
5. Summary
The foregoing recitation of text in Guideline 15126.2(a) and CEQA and the
discussion of Bakersfield Citizens lays the foundation for the following questions of
regulatory interpretation. First, do the disclosure provisions of Guideline 15126.2(a)
apply when a significant air quality impact is found to have been rendered less than
significant by mitigation measures. Second, do the disclosure provisions apply when an
air quality impact is not individually significant, but is a cumulatively considerable part
of a significant cumulative impact?
E. Interpretation of Guideline 15126.2(a)
1. Project-Level Impacts That Are Less Than Significant
The first sentence in Guideline 15126.2(a) states that “[a]n EIR shall identify and
focus on the significant environmental effects of the proposed project.” (Italics added; cf.
Guidelines, § 15128 [EIR‟s treatment of effects determined not to be significant].)
Similarly, its second sentence refers to “significant effects of the project on the
environment.” (Guideline 15126.2(a), italics added.) These references to significant
effects echo the CEQA policy that a lead agency shall focus the discussion in the EIR on
potentially significant effects on the environment. (§ 21002.1, subd. (e); see § 21100,
subd. (b)(1) [EIR is required to set forth all significant effects on the environment].)
Guidelines section 15358, subdivision (a)(2) uses the phrase “induced changes.” Aside
from an appendix, these are the only two places in the Guidelines where the word
“induced” appears.
14
The use of “significant” in these sentences is ambiguous as to whether
“significant” includes effects that are predicted to be significant before mitigation or is
limited to effects that still are significant after mitigation. Neither CEQA nor the
Guidelines explicitly resolve this ambiguity. (See Guidelines, § 15382 [definition of
“significant effect on the environment”].) Subdivision (b) of Guidelines section 15126.2
states: “Describe any significant impacts, including those which can be mitigated but not
reduced to a level of insignificance.” This language also is susceptible to conflicting
interpretations, but the stronger inference is that impacts that are reduced to a level of
insignificance need not be described to the same extent at those that remain significant
after mitigation.
The rationale for interpreting Guideline 15126.2(a) as applying to environmental
effects that remain significant after mitigation (not the situation in this case) is that EIR‟s
should discuss the actual impacts a proposed project will cause, rather than hypothetical
situations that will not occur.
First, discussing a scenario that is not predicted to occur would clutter the EIR
with material that is distracting, rather than “meaningful and useful to decisionmakers
and to the public.” (§ 21003, subd. (b).) In contrast, a discussion of environmental
effects that are predicted to be significant after the actual project is built is useful to
decisionmakers who must (1) balance those significant effects against the benefits of the
project and (2) decide whether those benefits constitute overriding considerations for
purposes of CEQA. (See Guidelines, § 15093 [balancing required before adopting
statement of overriding considerations].)
Second, a discussion of a hypothetical project that does not include the mitigation
measures, here a different street design, different sidewalks, different bike lanes and
storage, and Wal-Mart buildings without the energy saving measures, would expand the
time and cost spent preparing the EIR by including a scenario that has no potential for
15
being implemented. Such a result is contrary to the policies stated in subdivision (e) of
section 21002.1 to “reduce the time and cost required to prepare an [EIR]” and to “focus
on potentially significant effects on the environment of a proposed project.”
In summary, the disclosure provisions in Guideline 15126.2(a) do not apply to the
proposed project‟s air quality impacts because its individual air pollutant emissions do
not remain significant after the consideration of the air quality measures listed in the final
EIR.
2. Cumulative Impacts
The final EIR states that “the proposed project‟s cumulative impact to air quality
from operational emissions is considered cumulatively considerable and significant and
unavoidable.” This finding is based on the assumptions “that numerous projects will be
under construction simultaneously with the proposed project throughout the air basin”
and these projects would result in significant and unavoidable impacts despite being
subject to the same SJVAPCD rules and regulations that apply to the present project.
This finding presents the question of whether the disclosure provisions in Guideline
15126.2(a) apply to a significant cumulative impact when the project-level impact was
cumulatively considerable but less than significant.
Therefore, this case presents a situation where (1) the project-level air quality
impact was less than significant but cumulatively considerable and (2) the cumulative
impact was significant. This situation presents the question of whether the disclosures
required by Guideline 15126.2(a) for “significant environmental effects” applies when it
is the cumulative impact that is significant, not the cumulatively considerable project-
level impact.
I conclude that Guideline 15126.2(a) does not apply when the project-level impact
is less than significant and the cumulative impact is significant. This question of
16
interpretation was not decided, explicitly or implicitly, in Bakersfield Citizens because
the project-level impacts in that case were significant.
First, an EIR‟s discussion of cumulative impacts is addressed by Guidelines
section 15130. Consequently, there is no need to read Guideline 15126.2(a) to overlap
with the provision expressly designed to address cumulative impacts. Furthermore,
Guidelines section 15130 does not contain a disclosure requirement that parallels or is
similar to the “discussion [of] relevant specifics” described in the fourth sentence of
Guideline 15126.2(a). Indeed, it provides that “[t]he discussion of cumulative impacts …
need not provide as great detail as is provided for the effects attributable to the project
alone.” (Guidelines, § 15130, subd. (b).)13
Second, Guideline 15126.2(a) does not use the terms “cumulative” or
“cumulatively.” Instead, it refers to “the significant environmental effects of the
proposed project” and “significant effects of the project on the environment.” (Guideline
15126.2(a), italics added.) The italicized prepositional phrases in the quoted text qualify
or limit the type of significant effects covered to those caused by the project.
Third, the drafters of Guidelines section 15126.2 were capable of mentioning
cumulative impacts when that was their intent. Guidelines section 15126.2, subdivision
(d) addresses the growth-inducing impact of a proposed project and provides in part:
“Also discuss the characteristic of some projects which may encourage and facilitate
other activities that could significantly affect the environment, either individually or
cumulatively.” (Guidelines, § 15126.2, subd. (d), italics added.) This explicit reference
to a cumulative effect renders the omission of such a reference in Guideline 15126.2(a)
all the more telling. (See In re Jennings (2004) 34 Cal.4th 254, 273 [rule of statutory
13 In this case, Citizens has not argued that Guidelines section 15130 requires the
EIR to correlate significant cumulative air quality impacts to the health problems caused
by those cumulative impacts
17
construction that reference to a subject in one provision and its omission from another
provision is significant to show a different legislative intent].)
Therefore, I interpret Guideline 15126.2(a) to mean that its disclosure provisions
do not apply when the project‟s air quality impacts are less than significant, even though
the cumulative air quality impacts are significant and the project‟s contribution is
cumulatively considerable. Applying my interpretations to the facts of this case, I
conclude the EIR was not required by law to set forth a discussion of the correlation
between the project‟s emission of air pollutants and the health problems caused by those
pollutants.14
II. ADDITIONAL ISSUES ABOUT THE DISCLOSURE
In the event that a discussion of the correlation between the project‟s air quality
impacts and resulting adverse health impacts is required in this case, the following
questions are arise: (1) What must be contained in an EIR‟s discussion to satisfy the
correlation requirement? (2) Is specific information that would satisfy the correlation
requirement available?
14 Therefore, Citizens‟ argument that the indirect health impacts of the project could
be significant, even if the air quality emissions do not exceed the thresholds of
significance established by the SJVAPCD, and merit discussion in the EIR is contrary to
the present wording of Guideline 15126.2(a). In other words, the regulation implies that
there will be no significant indirect health impact caused by the project‟s emissions so
long as those emissions are not significant. However, I think the factual accuracy of such
an implication is weak. Concluding that there are no health impacts of air pollution so
long as the state and federal standards are not exceeded, is contrary to the day-to-day
experience of many who live in the San Joaquin Valley air basin. Also, such an
implication that replaces actual analysis of the potential indirect impacts on human health
appears contrary to the policy considerations underlying CEQA. Nevertheless, the
wisdom of this implication is beyond the challenges raised in this appeal, which involves
the interpretation and application of Guideline 15126.2(a) as written, and not whether the
regulation is “consistent and not in conflict with [CEQA] and reasonably necessary to
effectuate the purpose of the statute.” (Gov. Code, § 11342.2 [validity of regulations].)
18
A. Contents of the Correlation Discussion
Based on my conclusion that Bakersfield Citizens did not invent a new disclosure
requirement, the question about the details that must be set forth in an EIR to satisfy the
correlation requirement described in Bakersfield Citizens can be reframed as a question of
what Guideline 15126.2(a) requires to be described and discussed.
1. Absence of Specifics in the Guidelines and CEQA
Initially, CEQA and the Guidelines do not specify a list of the details that must be
contained in an EIR‟s discussion of the correlation between the significant air quality
impacts and resulting health problems. CEQA and the Guidelines are designed to cover a
myriad of environmental impacts and their consequences, including changes in health
problems. Accordingly, CEQA and the Guidelines provide general rules and do not
attempt to create exhaustive lists of details necessary for a discussion to be deemed
meaningful and useful to the decisionmakers and the public.
In my view, the absence of a greater specificity in the statute and regulation does
not mean the drafters intended an EIR‟s disclosure of the adverse health impacts caused
by the project‟s significant air quality impacts to be limited to a general acknowledgment
that air pollution harms human respiratory health. That information “is well known.”
(Bakersfield Citizens, supra, 124 Cal.App.4th at p. 1219.) The reference to “relevant
specifics of [1] the area, [2] the resources involved, [3] physical changes, [4] alterations
to ecological systems, and [5] changes induced in … [d] health and safety problems
caused by the physical changes” demonstrate an intention to have information specific to
the project and its direct and indirect impacts presented in the EIR. (Guideline
15126.2(a), italics added.) The reference to “relevant specifics” and the two phrases of
causal connection—that is, changes “induced in” and problems “caused by”—show that
the specifics that are relevant pertain to the actual change in human health that will result
19
from the project. As a result, a general statement that an air pollutant is associated with
chronic bronchitis and lung irritation falls short of satisfying this regulatory language.
I recognize that it is frustrating for those drafting EIR‟s and defending them in
court not to be told in specific terms what is necessary to satisfy the mandatory “clearly
identif[y] and describ[e]” requirement in the third sentence of Guideline 15126.2(a) and
the guidance contained in its fourth sentence. However, it is not the role of the courts to
identify those specifics because that would infringe upon the discretionary choices
committed to lead agencies. It is well established that a lead agency‟s choice of
methodology for studying an impact (which will affect the information generated and
then disclosed in the EIR) will be upheld if that choice is supported by substantial
evidence. (City of Long Beach v. Los Angeles Unified School Dist. (2009) 176
Cal.App.4th 889, 898.) In addition, CEQA explicitly states that courts are not authorized
“to direct any public agency to exercise its discretion in any particular way.” (§ 21168.9,
subd. (c).) Thus, when there are many acceptable ways to present information, a writ of
mandate cannot direct the agency to present information in a particular way and forego
using other acceptable options.
Therefore, I do not believe Citizens‟ failure to provide a precise description of the
additional information required by Guideline 15126.2(a) is a ground for concluding
Citizens failed to demonstrate the EIR‟s disclosures were inadequate.15
15 A court‟s inquiry into the adequacy of the discussion of health problems is aided
by provisions in the Guidelines that address, among other things, forecasting, the degree
of specificity required in an EIR, and standards for adequacy of an EIR. (See Guidelines,
§§ 15144 [forecasting], 15146 [degree of specificity], 15151 [standards of adequacy of an
EIR].) “An EIR on a construction project will necessarily be more detailed in the specific
effects of the project than will be an EIR on the adoption of” planning documents or
zoning ordinances. (Guidelines, § 15146, subd. (a).) The reference to “the specific
effects of the project” includes both direct and indirect effects. Therefore, when cases,
the like present one, involve a construction project, more details about specific effects are
required and indirect impacts on health problems qualify as a “specific effect.”
20
2. Do the Details Provided Serve the Disclosure’s Purpose?
Despite the inability of a court to identify a single set of specifics that must be
disclosed to satisfy Guideline 15126.2(a), courts are capable of determining whether the
disclosure provided is adequate—that is, whether the EIR is sufficient as an informational
document. (Guidelines, § 15003, subd. (i).) That determination is made by applying the
regulatory text and analyzing whether the disclosures provided fulfill the underlying
purpose of the regulation.
To illustrate this approach, assume that the disclosure requirements in Guideline
15126.2(a) applied to the project‟s air pollutant emissions, and I will address whether the
EIR‟s details relating to the health problems associated with ROG, NOx and PM10
adequately disclose the “relevant specifics” about “changes induced in … health …
problems caused by the physical changes” resulting from the operation of the project.
(Guideline 15126.2(a).) This illustration is limited to the EIR‟s discussion of the health
problems associated with NOx because the disclosures relating to ROG, PM10 and ozone
are similar in terms of the level of detail provided.
The EIR stated: “Health effects associated with NOx are an increase in the
incidence of chronic bronchitis and lung irritation. Chronic exposure to NO2 may lead to
eye and mucous membrane aggravation, along with pulmonary dysfunction.” This
general acknowledgement that NOx emissions are associated with respiratory, pulmonary
and membrane problems does not contain the relevant specifics about the health problems
caused by the increase in NOx (i.e., the physical change) resulting from this project. A
conclusion that this general acknowledgement was adequate would be the equivalent of
interpreting Guideline 15126.2(a) to mean an EIR need only describe the health problems
“generally caused by an air pollutant.” Instead, it refers to “changes induced in … health
… problems caused by the physical changes.” (Guideline 15126.2(a).) In my view, “the
physical changes” referred to are those mentioned earlier in the sentence and, thus, are
21
the physical changes caused by the proposed project. (Cf. Guidelines, § 15378, subd. (a)
[definition of “project” as action resulting in physical change to the environment].)
Similarly, “relevant specifics” and “changes induced in” demonstrate an intention that the
discussion be specific to the project, not general to all NOx emissions. A general
disclosure that pollutant X may increase health problem Y tends to be encyclopedic,
rather than analytic, and, thus, is not particularly meaningful. (Guidelines, § 15006, subd.
(o) [paperwork is reduced by preparing analytic rather than encyclopedic EIR‟s].)
Therefore, I interpret the text of the regulation to require information specific to the
project.
The next step of regulatory construction is to determine if this textual analysis
results in an interpretation that promotes or impairs the purpose of the regulation. In my
view, a general statement that NOx emissions increase respiratory health problems fails to
fulfill the purposes of the disclosure requirement. EIR‟s discuss the relevant specifics of
health problems caused by the physical changes resulting from the project to provide
“meaningful and useful [information] to decisionmakers and to the public.” (§ 21003,
subd. (b).) Specifics are “relevant” and “useful” to decisionmakers when they provide a
foundation for making a finding or other determination required by CEQA. One
determination required of CEQA decisionmakers is the balancing of the anticipated
benefits of the project against the various adverse impacts, including the human health
problems caused by the project‟s significant air quality impacts. That balancing is part of
deciding whether the benefits override the negative consequences of those health
problems and the other adverse environmental impacts. (Guidelines, § 15093 [balancing
required before adopting statement of overriding considerations].)
A rational balancing of the benefits of the project against adverse health impacts is
achieved only if the information in the EIR gives the decisionmakers some sense of
proportion of the health problems that will be caused. Conversely, without some sense of
22
proportion or idea about the weight of the health problems caused by the project‟s
physical changes, the required balancing cannot be completed in a rational manner. A
court‟s inquiry into whether an EIR‟s discussion of the correlation between air quality
impacts and resulting health problems has provided the “relevant specifics” and satisfied
Guideline 15126.2(a) must evaluate whether the information provided allows the
balancing of the health problems against the project‟s benefits to be completed in a
meaningful way. In sum, an EIR has complied with Guideline 15126.2(a) and disclosed
the “relevant specifics” when it provides some sense of proportion about the “changes
induced in … health … problems caused by the physical changes” and thereby enables a
rationale balancing to occur.
In this case, the general disclosure of the health problems associated with NOx
emission does not provide decisionmakers with any sense of proportion or idea about the
weight of the health problems caused by the project‟s physical changes. With such paltry
information, a decisionmaker cannot rationally balance the project‟s benefits against its
detriments when deciding whether or not to approve the project because the weight of the
detriment is unknown.
3. Summary
In summary, the discussion of the correlation between the project‟s air pollutant
emissions and the health problems that will be caused by those emissions must be
project-specific. Therefore, a general disclosure that a pollutant increases respiratory
problems lacks the relevant specifics and is legally inadequate. As to identifying the
specifics necessary, I believe the appropriate inquiry is whether those specifics give
decisionmakers and the public some sense of proportion about how the projects‟ air
pollutant emissions will impact (i.e., induce changes in) health problems. Furthermore, I
think Guideline 15126.2(a) can be satisfied without (1) quantifying in percentages or
other figures the increase in the risk of particular health problems or (2) estimating the
23
increase in the number of days the area will exceed state or federal standards for criteria
air pollutants. In other words, those methods may be acceptable, but are not the only way
to comply with Guideline 15126.2(a).
B. Availability of Information Correlating Air Pollutants to Health Risks
Based on the foregoing interpretation of how to test an EIR‟s discussion for
compliance with Guideline 15126.2(a), I am not convinced that lead agencies and project
proponents are incapable of providing specific information that correlates the project‟s air
pollutants to changes induced in health problems.
First, a properly prepared EIR would not leave a reviewing court, the public or
decisionmakers in doubt about the capabilities of providing this information. I interpret
the regulatory language to mean that, if the drafters of an EIR actually believe they are
not capable of presenting correlation information that provides some sense of proportion
about health problems, they should disclose that position in the draft EIR. In other
words, the draft EIR should state it cannot provide the relevant specifics about the
correlation because of “compelling, countervailing considerations.” (Guidelines, §
15005, subd. (b).) Then, members of the public inclined to challenge the drafters‟
position could do so in comments to the draft EIR. In turn, the drafters would have an
opportunity to respond. When these steps of the environmental review process are
followed, the administrative record will be developed on the question of what
information actually can be provided about the correlation. As a result, courts will not be
unaided in determining what a lead agency is capable of disclosing about the correlation.
In this case, compelling, countervailing considerations were not presented. (See fn. 7,
ante.)
Second, existing case law illustrates how to provide some sense of proportion
about air pollution impacts on health. Farm Bureau, a case decided over 25 years ago,
involved an EIR that compared the project‟s emissions to the total regional emissions of
24
certain pollutants. (Farm Bureau, supra, 221 Cal.App.3d at p. 714.) That information
provides a basis for estimating the project‟s impact on the concentration of the air
pollutant, which is how the baseline is described in the instant case. Also, the EIR in
Farm Bureau estimated the percentage increase in ambient PM10 that would be caused by
the project. (Ibid.) Where, as in the present case, information about concentrations is
provided in the description of the baseline air quality, an estimate of the percent increase
could be restated in terms of concentration. I recognize such estimates are crude in
comparison to the disclosures contained in the diesel particulate health risk assessment of
June 11, 2008, which is Appendix 4.2-3 to the EIR. Nonetheless, a decisionmaker with
such an estimate is provided with some sense of proportion of the air pollutant impacts,
can draw some inferences about health impacts and can use those inference in performing
the balancing required before approving the project. If an EIR contained such an
estimate and a finding (supported by substantial evidence) that compelling,
countervailing considerations prevented a more detailed disclosure about the correlation,
I would conclude the disclosure was adequate. (See Guidelines, § 15151 [“sufficiency of
an EIR is to be reviewed in the light of what is reasonably feasible”].)
Third, the contents of the administrative record in this case indicate that lead
agencies and project proponents are capable of providing a discussion about the
correlation of project emissions to the health problems that will be caused by those
emissions. Both the city and Wal-Mart point to the diesel particulate health risk
assessment (Appendix 4.2-3) as a document that analyzes the health impacts of
emissions.16 It is clear that the document does not address the project‟s total operational
16 This assessment is based in part on the Air Toxics Hot Spots Program Guidance
Manual for Preparation of Health Risk Assessments (Aug. 2003) issued by the Office of
Environmental Health Hazard Assessment. The manual states: “There are several air
dispersion models that can be used to estimate pollutant concentrations and new ones
likely to be developed.” The manual also gives the URL for a website maintained by the
25
emissions. Nevertheless, it demonstrates that a methodology exists for providing specific
estimates about the health impacts of air pollutants. For instance, the assessment
addresses carcinogenic risks and also contains the results of calculations using a non-
cancer hazard index. Tables contain quantifications of carcinogenic risks and
noncarcinogenic hazards to nearby residents from exposure to diesel particulate matter
under nine-year, 30-year and 70-year scenarios. I do not interpret Guideline 15126.2(a)
to mandate this type of quantification for all of the project‟s operational emissions, but
think such a disclosure would be adequate if provided. In other words, I do not interpret
the correlation requirement as necessarily requiring a quantification of health risks for
individuals or at a per-million-person level.
In conclusion, if the disclosure provisions in Guideline 15126.2(a) apply to the
project‟s air pollutant emissions, I would conclude that the EIR‟s description of the
association between the emissions and health problems caused by the emissions fails to
comply with Guideline 15126.2(a) and, thus, is legally inadequate.
________________________
FRANSON, J.
United States Environmental Protection Agency that contains the latest version of the
federally recommended models.
26