450 Mass. 242 | Mass. | 2007
Lead Opinion
In the present case, we consider the planned development by University Associates Limited Partnership (University Associates)
1. Statutory and regulatory scheme. Before considering the specific facts in this case, we begin with a brief overview of MEPA and the regulations promulgated thereunder, so as to put the proceedings here in context. General Laws c. 30, § 61, sets forth a broad policy of environmental protection in this Commonwealth by directing “[a]ll agencies, departments, boards, commissions and authorities” to “review, evaluate, and determine the impact on the natural environment of all works, projects or activities conducted by them and . . . use all practicable means and measures to minimize damage to the environment.”
The review of a project under MEPA begins when the project’s proponent files an environmental notification form (ENE) to inform the Secretary of the nature of the project. See G. L. c. 30, § 62A; 301 Code Mass. Regs. § 11.05. After a thirty-day review period, during which the Secretary consults with the project proponent and with any agency from which a permit or financial assistance may be sought, the Secretary issues a written certificate stating whether an EIR is required. See G. L. c. 30, § 62A; 301 Code Mass. Regs. § 11.06. If one is required, the Secretary shall “limit the scope of the report to those issues which by the nature and location of the project are likely to cause damage to the environment.” G. L. c. 30, § 62A. See 301 Code Mass. Regs. § 11.06(9)(a). Further, “[t]he secretary shall determine the form, content, level of detail and alternatives required for the report.” G. L. c. 30, § 62A. See 301 Code Mass. Regs. § 11.06(9)(c).
In accordance with G. L. c. 30, § 62B, an EIR shall contain statements describing “the nature and extent of the proposed project and its environmental impact; all measures being utilized to minimize environmental damage; any adverse short-term and long-term environmental consequences which cannot be avoided should the project be undertaken; and reasonable alternatives to the proposed project and their environmental consequences.”
Within seven days after the conclusion of this public review period, the Secretary issues a written certificate indicating whether, in the Secretary’s judgment, the EIR “adequately and properly complies” with the provisions of MEPA, G. L. c. 30, §§ 62-62H. G. L. c. 30, § 62C. See 301 Code Mass. Regs. § 11.08(8). The MEPA review process culminates with the Secretary’s certification of a final EIR. See Enos v. Secretary of Envtl. Affairs, supra at 137. The certificate issued by the Secretary does not constitute approval or disapproval of a particular project, which ultimately is left to various permitting agencies. See G. L. c. 30, § 62C; Enos v. Secretary of Envtl. Affairs, supra. Rather, the certificate signals that the Secretary, “a disinterested public official with expertise in environmental matters,” has determined that the information-gathering process has been completed in compliance with MEPA. Cummings v. Secretary of Envtl. Affairs, 402 Mass. 611, 617 (1988). See Enos v. Secretary of Envtl. Affairs, supra. Once the Secretary issues a certificate on a final EIR, those agencies, departments, boards, commissions, and authorities that are undertaking, funding, or permitting a proposed project use the information set forth in the EIR to assess the project’s impact on the environment and to prevent or minimize any consequential damage. See G. L. c. 30, § 61.
2. Factual and procedural background. In 1965, the BRA adopted the South End Urban Renewal Plan, pursuant to which development of the area between the Boston University Medical Center and the Southeast Expressway would focus on medical and institutional uses. University Associates planned to construct within this area a two-phase medical research campus. In 1991, University Associates proposed, and the BRA and the zoning
On August 31, 1999, University Associates submitted an ENF to the Executive Office of Environmental Affairs, proposing to commence the development of BioSquare Phase II, which would consist of two research buildings, a parking facility, and a helipad.
On October 8, 1999, the Secretary issued a certificate on the ENF, concluding that University Associates was required to prepare an EIR for BioSquare Phase II. In setting forth the scope of the EIR, the Secretary directed University Associates to (1) analyze the categories of environmental impacts set forth in its ENF; (2) analyze its preferred build alternative, the no-build alternative, and other site layouts that would minimize over-all environmental impacts; (3) describe each State permit or agency action required for BioSquare Phase II; (4) explain the relationship of BioSquare Phase II to University Associates’s other projects in the South End neighborhood and the cumulative impact of one on the others, particularly with respect to traffic, transit, parking, air quality, historic resources, and sewer infrastructure; (5) include a summary of all mitigation measures to which University Associates had committed; and (6) respond to all substantive comment letters received on the ENF.
Before University Associates submitted a draft EIR to the Secretary in September, 2003, the National Institute of Allergy
University Associates submitted its draft EIR to the Secretary on September 30, 2003.
After receiving public comments on the draft EIR,
On July 30, 2004, University Associates submitted its final EIR to the Secretary. BioSquare Phase II would consist of two medical research buildings, one of which would house the Bio-lab, and a parking garage. In its discussion of the Biolab’s operational, safety, and security issues, University Associates analyzed the public health impacts of a “worst case scenario” involving the loss of the Biolab’s containment systems. RWDI West Inc. (RWDI) was hired to perform the risk assessment. It assumed that dry purified anthrax stored in a container was dropped accidentally in the Biolab, releasing ten billion aerosolized anthrax spores.
The final EIR also discussed briefly other potential risk
The plaintiffs then commenced the present action against the
Subsequently, the plaintiffs filed a motion for judgment on the pleadings pursuant to Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). In his memorandum and order on the plaintiffs’ motion, the judge found that the Secretary’s certification on November 15, 2004, that the final EIR adequately and properly complied with MEPA and its implementing regulations was arbitrary and capricious. Given that BioSquare Phase II would include a Biosafety Level 4 laboratory, the judge concluded that the environmental reviews were inadequate because University Associates failed to analyze the risks posed by the potential release of a contagious disease from the Biolab, which could cause catastrophic harm, and because University Associates had not considered locations for the Biolab other than the South End. In the absence of such critical analysis, the judge opined, the Secretary’s certification of the final EIR lacked a necessary rational basis. The judge pointed out that those governmental agencies whose permits and financing were necessary for the development of BioSquare Phase II should have the benefit of
3. Standard of review. The Secretary has broad discretion under MEPA to facilitate environmental planning for proposed projects that will require action by Commonwealth agencies. See Sierra Club v. Commissioner of the Dep’t of Envtl. Mgt., 439 Mass. 738, 748 (2003). See also 301 Code Mass. Regs. § 11.01(1)(d). “The ‘informal and informational public consultatian’ permitted under EIR review and the Secretary’s certificatian are not adjudicatory proceedings.” Sierra Club v. Commissioner of the Dep’t of Envtl. Mgt., supra at 747, citing 301 Code Mass. Regs. § 11.08(3). Nonetheless, “[t]he process by which the information is gathered, identified, and applied to the statutory standards under MEPA must be logical, and not arbitrary or capricious.” Sierra Club v. Commissioner of the Dep’t of Envtl. Mgt., supra at 749. See Receiver of the Boston Hous. Auth. v. Commissioner of Labor & Indus., 396 Mass. 50, 58 (1985). Therefore, we consider here whether the Secretary’s certification of the final EIR had a rational basis. See Sierra Club v. Commissioner of the Dep’t of Envtl. Mgt., supra at 748. We are mindful that appropriate deference must be given to the Secretary’s expertise in environmental matters. See Colby v. Metropolitan Prop. & Cas. Ins. Co., 420 Mass. 799, 806 (1995)
4. Consideration of “remote” contingencies. The defendants first contend that the judge’s conclusion that the environmental reviews of the Biolab were inadequate was based on a fundamental misconstruction of MEPA. They point out that the Secretary is vested with the authority to gather pertinent information on proposed projects so that State agencies charged with the review of those projects can take appropriate steps “to minimize damage to the environment.” G. L. c. 30, § 61. See G. L. c. 30, § 62A; 301 Code Mass. Regs. § 11.01. At the same time, the defendants assert that the provisions of MEPA do not contemplate an analysis of every conceivable environmental impact posed by a project. Rather, they continue, the scope of MEPA is limited to environmental consequences that are “actual,” “probable,” or “likely,” not those that are highly remote. Consequently, the defendants argue that because the Secretary was not required to consider unlikely contingencies, such as the actual release of a pathogen from the Biolab, her certification of the final EIR was proper, not arbitrary or capricious. Further, the defendants contend that even if remote contingencies were a necessary focus of the MEPA review process, the judge here substituted his own opinion for that of the Secretary with respect to what circumstances constituted a plausible “worst case” scenario for analyzing the environmental risks posed by the Biolab’s operation. We disagree with the defendants’ interpretation of MEPA and the Secretary’s corresponding obligations thereunder in certifying the final EIR.
The Secretary’s authority over the submission and scope of an EIR flows from G. L. c. 30, § 62A, which provides that “the secretary . . . shall . . . limit the scope of the report to those issues which by the nature and location of the project are likely to cause damage to the environment” (emphasis added). The regulations promulgated in accordance with MEPA further provide that “[t]he Secretary shall limit the Scope [of the EIR] to those aspects of the Project that are likely, directly or indirectly, to cause Damage to the Environment.” 301 Code Mass. Regs. § 11.06(9)(a). The focus of this statutory and regulatory scheme is not, as the defendants seem to suggest, on whether the release
The term “likely” is not defined in MEPA, nor is it understood to be a term of art requiring a specific and limited interpretation. Where a statutory term is not defined, it must be understood in accordance with its generally accepted plain meaning. See Lawrence v. Cambridge, 422 Mass. 406, 410 (1996). The dictionary defines “likely” as “having a better chance of existing or occurring than not,” and as “having the character of a probability.” Webster’s Third New Int’l Dictionary 1310 (1993). “As commonly used and understood, ‘likely’ is a word that encompasses a range of probabilities depending on the specific context in which it is used. . . . [Sjomething is ‘likely’ if it is reasonably to be expected in the context of the particular facts and circumstances at hand.” Commonwealth v. Boucher, 438 Mass. 274, 276 (2002). Given that the nature of a Biosafety Level 4 facility is to conduct research on highly virulent and infectious pathogens, and given that the Biolab will be located in a densely populated urban area, the likelihood that the release of such a pathogen will cause damage to the environment is extraordinarily high. The fact that University Associates will take all necessary precautions to minimize the chances of a release at the Biolab does not diminish the potential for catastrophic environmental damage if such a release does occur.
The Secretary plainly recognized the inherent hazards associated with the operation of a Biosafety Level 4 facility in the South End because she specifically mandated that University Associates evaluate a “worst case” scenario in its final EIR. However, the Secretary’s subsequent determination that the final EIR adequately and properly complied with MEPA, based, in part, on an assessment by University Associates that an accidental release of anthrax from the Biolab would result in negligible public harm, lacked a rational basis because the evaluation of the “worst case” scenario was significantly incomplete. The final EIR failed to analyze the likely damage to the environment caused by the release of a contagious pathogen, whether through laboratory accident, escape of an infected research
We recognize that the Secretary has considerable discretion over the scope of an EIR given her expertise in environmental matters. At the same time, the purpose of MEPA and the regulations promulgated thereunder is “to provide meaningful opportunities for public review of the potential environmental impacts of Projects for which [State] Agency Action is required, and to assist each Agency in using ... all feasible means to avoid Damage to the Environment or, to the extent Damage to the Environment cannot be avoided, to minimize and mitigate Damage to the Environment to the maximum extent practicable” (emphasis added). 301 Code Mass. Regs. § 11.01(1)(a). See G. L. c. 30, § 61. The release of a highly virulent and contagious pathogen from the Biolab would present numerous and unique challenges for State agencies, which those agencies likely would not confront if the release involved a noncontagious pathogen. The absence of any information in the final EIR about such a contingency, one likely to cause damage to the environment, was a substantial oversight. Accordingly, we conclude that the judge’s determination that the Secretary’s certification of the final EIR was arbitrary and capricious was warranted. The “worst case” scenario put forth by University Associates inadequately addressed the consequences of a release of contagious pathogens from the Biolab, potentially denying State agencies the opportunity for meaningful review of the environmental impact of such a release and consideration of the measures that would be necessary to mitigate environmental damage.
General Laws c. 30, § 62A, states, in pertinent part, that “[tjhe secretary shall determine the form, content, level of detail and alternatives required for the [EIR].” General Laws c. 30, § 62B, provides, in more particular detail, that “[a]n environmental impact report shall contain statements describing the nature and extent of the proposed project and its environmental impact; all measures being utilized to minimize environmental damage; any adverse short-term and long-term environmental consequences which cannot be avoided should the project be undertaken; and reasonable alternatives to the proposed project and their environmental consequences” (emphasis added). See 301 Code Mass. Regs. § 11.07(4) (“the draft and final EIRs shall present a complete and definitive description and analysis of the Project and its alternatives, and assessment of its potential environmental impacts and mitigation measures sufficient to allow a Participating Agency to fulfill its obligations in accordance with G. L. c. 30, § 61”). Cf. Sierra Club v. Commissioner of the Dep’t of Envtl. Mgt., 439 Mass. 738, 750 (2003) (MEPA does not require exhaustive search for alternatives). In addressing the specific form and content of an EIR, MEPA regulations specify that the EIR shall ordinarily include, inter alla, “[a] description and analysis of . . . all feasible alternatives [to the Project], including but not limited to those indicated in the Scope [of the Project as set forth by the Secretary] . . . [and] a brief discussion of any alternatives no longer under consideration.” 301 Code Mass. Regs. § 11.07(6)(f).
We recognize, as did the judge below, that it is not clear from
Here, the Secretary specifically informed University Associates that the final EIR should respond to public comments received on the draft EIR, particularly the detailed letter submitted by ACE, and should present additional narrative or technical analysis, as appropriate, to respond to substantive concerns. The letter from ACE repeatedly and pointedly emphasized that it was imperative that University Associates address the issue of alternative locations for the Biolab. The Secretary’s mandate with respect to the final EIR suggested that she regarded locations outside the South End neighborhood to be “reasonable alternatives” for consideration. However, University Associates never addressed this issue in its final EIR, even insofar as to explain that locations outside the South End would not, for whatever reasons, be feasible. Accordingly, we conclude that the judge correctly determined that the Secretary’s certification of the final EIR was arbitrary and capricious because the final EIR did not adequately and properly comply with MEPA where University Associates failed to consider alternative locations for the Biolab in response to the comment letter from ACE as directed by the Secretary.
6. Conclusion. The order of the Superior Court vacating the Secretary’s certification of the final EIR is affirmed. This case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
The partners of University Associates Limited Partnership (University Associates) are the trustees of Boston University and Univer Development Foundation, Inc., whose sole member is Boston Medical Center Corporation.
According to the National Institutes of Health, Biosafety Level 4 laboratories deal with pathogens that are highly virulent for humans and infectious by the aerosol route. Such pathogens often are capable of direct transmission from person to person, and they produce diseases for which there is no specific treatment or prevention available.
At the time University Associates submitted its draft environmental impact report to the Secretary of the Executive Office of Environmental Affairs (Secretary) in the fall of 2003, there were only three Biosafety Level 4 laboratories in the entire United States. One facility is operated by the Centers for Disease Control and Prevention in Atlanta, Georgia; a second facility is operated by the United States Army Research Institute on Infectious Diseases at Fort Detrick in Frederick, Maryland; and a third facility is operated by the Southwest Institute for Biomedical Research in San Antonio, Texas.
The judge also ordered that, because separate findings made by the Division of Capital Asset Management (DCAM) and the Boston Redevelopment Authority (BRA), pursuant to G. L. c. 30, § 61, pertaining to the transfer of certain land on which part of BioSquare Phase II was to be constructed, were based, at least in part, on an inadequate final environmental impact report (EIR), those findings were vacated and any agency action premised on the issuance of such findings was stayed until an adequate supplemental final EIR
We acknowledge the amicus briefs filed by the Secretary of Environmental Affairs; Partners Healthcare System, Inc.; the city of Newton and United for Justice with Peace; the Infectious Diseases Society of America; the Conservation Law Foundation and the Lawyers’ Committee for Civil Rights Under Law of the Boston Bar Association; Alternatives for Community and Environment, Inc.; the Council for Responsible Genetics; the New England Legal Foundation and Associated Industries of Massachusetts; the Massachusetts Chapter of the National Association of Industrial and Office Properties; Tufts University; the American Society for Microbiology; and Daniel Goodenough, Jean Guillemin, Lynn Klotz, David Ozonoff, and Marc Pelletier.
A “[pjroject” that is subject to review pursuant to G. L. c. 30, § 61, is any “work, project, or activity either directly undertaken by an agency, or if undertaken by a person, which seeks the provision of financial assistance by an agency, or requires the issuance of a permit by an agency.” G. L. c. 30, § 62.
The Legislature has given the phrase “damage to the environment” a broad scope, defining it as “any destruction, damage or impairment, actual or probable, to any of the natural resources of the commonwealth . . .” (emphasis added). G. L. c. 30, § 61. The statute further provides that “[d]amage to the environment shall not be construed to include any insignificant damage to or impairment of such resources.” Id. In the regulations promulgated under the Massachusetts Environmental Policy Act (MEPA), “[d]amage to the [environment” is defined as “[a]ny destruction or impairment (not including insignificant damage or impairment), actual or probable, to any of the natural
BioSquare Phase II was subject to the provisions of MEPA in the first instance because University Associates needed to obtain permits from various agencies in order to develop the facility, and it was receiving financial assistance from the Commonwealth. In certificates later issued with respect to both the draft EIR and the final EIR, the Secretary noted that MEPA jurisdiction extended “to all aspects of the project that may have significant environmental impacts.”
When University Associates submitted its draft EIR to the Secretary, it also submitted the same set of documents to the BRA to facilitate coordinated review of BioSquare Phase II under both MEPA and art. 80 of the Boston Zoning Code. See Boston Zoning Code, art. 80, § 80-6. In accordance with art. 80, the BRA is responsible for, inter alla, comprehensive review of large development projects before and during the schematic design stage in order to assess a project’s impacts on its surroundings and on Boston resources, and to identify necessary mitigation measures. Id. at §§ 80B-1, 80B-5.
The Secretary received numerous comment letters on the draft EIR from agencies, departments, boards, commissions, and authorities that would be involved in the permitting process for BioSquare Phase II and would be making findings, pursuant to G. L. c. 30, § 61, on the environmental impacts of the proposed project. Letters were submitted by, among others, the Massachusetts Bay Transportation Authority, the Massachusetts Historical Commission, the northeast regional office of the Department of Environmental Protection, the Boston Water and Sewer Commission, the Boston Redevelopment Authority, the Massachusetts Highway Department, the Massachusetts Water Resources Authority, the Environment Department of the city of Boston, and the environmental health office of the Boston Public Health Commission.
Although the MEPA review process is not adjudicatory, it may limit the scope of review of environmental issues under G. L. c. 30, § 61, by agencies that issue permits that fail to comment, or that make only limited comments, on an EIR. See 301 Code Mass. Regs. § 11.08(7).
In a lengthy comment letter, Alternatives for Community & Environment (ACE) stated that the draft EIR was fatally deficient because it completely failed to explain that University Associates planned to build, as part of Bio-Square Phase II, a Biosafety Level 4 facility where researchers would experiment with the most dangerous live viruses known to exist. ACE emphasized that the omission of this information made it impossible to determine the impacts the Biolab would have on the chosen project site and to evaluate alternatives to the Biolab’s design and location. This critical omission, ACE continued, was sufficient cause for the Secretary to determine, in accordance with 301 Code Mass. Regs. § 11.08(8), that the draft EIR was inadequate and that University Associates must file a supplemental draft EIR.
Anthrax was selected because of its resistance to environmental factors, such as sunlight and lack of humidity, and the ease of airborne dissemination.
In its description of the methodology used for the “worst case” analysis, University Associates stated that, based on simulations undertaken by the National Institutes of Health, if ten billion anthrax spores were accidentally released, only 400,000 spores would become airborne and respirable. The calculated “worst case” exposure for any single individual resulting from the expulsion of anthrax from the Biolab over a thirty-minute period would be 0.0024 spores. This exposure reflected the most dense dispersion location, and the inhalation of anthrax for the duration of the event. An exposure of 0.0024 spores is significantly less than one spore. A scenario resulting in the inhalation of one spore over the course of the event would require that more than 6,000 individual containers be dropped simultaneously with all caps unfastened
In its responses to the ACE comment letter, University Associates noted only that there is a nationwide need to develop national biocontainment laboratories, and that Massachusetts and Boston are biomedical research centers. In responding to a comment letter received from the Worcester Square Area Neighborhood Association, University Associates did state that “[l]ocating the [Biolab] in a rural area would fail to take advantage of the essential benefit of shared intellectual and capital resources achieved by locating the facility within the City of Boston at the Boston University Medical Center Campus.”
On February 11, 2005, University Associates notified the Secretary about three laboratory-acquired infections that had occurred in one of Boston University Medical Center’s Biosafety Level 2 facilities. University Associates represented to the Secretary that at the time it filed its final EIR, it did not know that three research scientists had become ill while working with francisella tularensis (the bacteria that causes tularemia, also known as “rabbit fever”) because the infection was not confirmed by the State laboratory until November-12, 2004. It was the assessment of Boston University Medical Center that at no time was there any public health risk associated with this incident because the workers were exposed in a single laboratory, and tularemia cannot be transmitted from person to person. In her response to University Associates, the Secretary noted that MEPA regulations included a discretionary mechanism for her to reopen the environmental review process through a “Notice of Project Change” if she determined that University Associates, “either knowingly or inadvertently, concealed a material fact or submitted
The issues raised in the remaining counts of the plaintiffs’ amended complaint are not presently before this court.
In an amicus brief, the Secretary informs us that he is currently overseeing a supplemental administrative process in response to the judge’s memorandum and order. On September 5,2006, the Secretary issued a certificate directing University Associates to prepare and file a supplemental final EIR evaluating an additional “worst case” scenario arising from the release-of a contagious pathogen, and identifying feasible alternative locations for the Biolab, including at least one in an area less densely populated than the South End. Even if, as the Secretary suggests, the defendants’ interlocutory appeal should be dismissed because the appeal is no longer necessary to facilitate the administration of justice, the public importance of this case, coupled with the fact that the issues have been fully briefed and are likely to arise again when other projects are subject to MEPA review, dictate that we address the issues raised by the defendants. See Lockhart v. Attorney Gen., 390 Mass. 780, 783 (1984), and cases cited (recognizing exception to mootness where issue was one of public importance, was fully argued, and was very likely to arise again). In a reply brief, University Associates asserts that interlocutory review of the question whether the judge’s order properly required further risk analysis remains appropriate.
The Massachusetts Turnpike Authority (MTA) prohibits passenger or commercial vehicles carrying any amount of hazardous material from entering or using all tunnels owned and operated by the MTA, the Metropolitan Highway System tunnels, and the Central Artery North Area tunnels. See 730 Code Mass. Regs. § 7.10 (2003). See also 730 Code Mass. Regs. § 7.02 (2003) (defining “Tunnels”). “Hazardous Material” includes infectious substances. See 730 Code Mass. Regs. § 7.02 (1998). See also 49 C.F.R. §§ 171.8, 173.2, 173.134(a)(1) (2006). As a consequence, the transportation of contagious pathogens to and from the Biolab is likely to occur on local streets, exponentially increasing the risk of harm to those along the route of delivery or removal.
Concurrence Opinion
(concurring). Fifteen months ago, following the memorandum and order of the Superior Court judge and the remand of the case to the Secretary of Environmental Affairs for further administrative action,
In addition, I do not find that the unique issues raised in connection with this project are likely to arise in connection with other projects. The siting of a Level 4 biolaboratory (which will be licensed and regulated by the Federal government) is virtually sui generis in nature, and the temptation to stretch our MEPA statute to ensure that all of the understandable concerns of its neighbors (even those more properly addressed elsewhere) are considered in the State environmental process, poses a risk of unintended consequences for many projects of a different nature.
Insofar as the court has proceeded to decide the case, I concur with its conclusion that the Secretary acted arbitrarily by seemingly requiring a “worst case” scenario and an analysis of an alternative nonurban site in the scope of the final EIR, and then certifying the EIR as complete without actually getting adequate studies of either. I write separately only to express my understanding of the limits of the analysis used by the court to reach this
First and most particularly, the court has not mled, and MEPA does not require, that the Secretary must direct project applicants to consider and analyze unlikely or remote contingencies, and prepare “worst case” scenarios in the event that such contingencies occur. The Secretary’s decision with respect to the range of project-specific issues “likely to cause damage to the environment,” which are to be addressed within the scope of an EIR, rests firmly in his discretion. The court will not substitute its own view of what should be included within such a scope for that of the Secretary’s. Indeed, there are many projects, such as hospitals, clinics, medical laboratories, nursing homes, prisons, and even food processing plants, whose operation might create some risk of the release of contagious pathogens into the community. The decision of the court today should not be construed to require an environmental study of such risks (and the preparation of worst case scenarios regarding them) as a matter of law or to deem any decision by the Secretary not to require such studies to be an abuse of discretion.
Second, in setting forth the scope of the original EIR, the Secretary directed University Associates to analyze its preferred build alternative, the no-build alternative, and other site layouts that would minimize over-all environmental impacts. The Secretary did not require the study of feasible alternative sites outside the urban area. The court’s decision should not be construed to mean that this initial scoping decision was arbitrary and capricious, or was otherwise beyond the Secretary’s discretion. It was not. The focus of the judge’s inquiry below, and the court’s opinion today, is on whether, having changed the scope after (and in response to) public comment on the draft EIR to require such a study, the Secretary abused his discretion by approving the final EIR in its absence.
With these limitations in mind, I concur.
The judge’s ruling was not stayed pending the resolution of this interlocutory appeal, which appeal is not a matter of right.
The supplemental EIR was initially scheduled to be filed this past summer, but is now expected by February, 2008.
