Opinion
I. INTRODUCTION
This is the third effort by the City of Irvine (Irvine) to stop a proposed expansion of the James A. Musick Facility (the Musick Facility, sometimes called the Musick jail expansion) to reach this court. In
City of Lake Forest
v.
County of Orange
(Dec. 8, 2000, G023884) (nonpub. opn.)
(Musick I),
the Cities of Irvine and Lake Forest challenged the 1996 certification of an environmental impact report (EIR 564) involving a proposed expansion of the Musick Facility from about 1,200 beds to 7,584 beds. Four aspects of EIR 564 were targeted in
Musick L
(1) the loss of agricultural land attendant
A decade or so later came the Criminal Justice Realignment Act of 2011 (see Stats. 2011, ch. 15, §§ 1, 450) which shifted responsibility for the custodial housing and post-release supervision of some felons from the state prison system to local jails and probation departments. (See
Wofford v. Superior Court
(2014)
We now come to Musick III—this case—in which Irvine directly challenges SEIR 564. The project is still for 7,584 beds, though there is a minor reconfiguration of the actual jailhouse to be built. And some land, about 22 acres, that was going to continue to be farmed back in 1996 has been dropped for open space. There has been one big intervening change in surrounding land use, which is the scrapping of the proposed international airport at the former El Toro Base in favor of a “Great Park,” with some adjacent housing development.
In
Musick III,
Irvine presents several challenges to SEIR 564 that basically center on only two actual environmental effects: impacts on local traffic intersections and the loss of agricultural land. It turns out the problem of ascertaining the effect of the project on local traffic is a problem of variable
As to the loss of agricultural land, the topic is well-trod territory in a county where there are few orange groves left and the cost of land makes commercial agriculture largely cost prohibitive. The County had discovered it was even too costly to grow its own food by 2009, so there is now no actual agriculture at the Musick Facility. Irvine quibbles with the conclusion of SEIR 564 that it is now virtually impossible to find 65 acres of prime agricultural land in Orange County to replace the. 65 acres that used to be farmed at the Musick Facility. As we explain, SEIR 564 more than adequately documented that the cost of land near the project site was $2 million per acre in 2012, and that was prior to the recovery from the Great Recession. (And the County average exceeds $308,000 per acre.) But agriculture is not competitive if the cost of land exceeds $60,000 per acre. Replacing what used to be farmed at the Musick Facility cannot be done at anything near a reasonable price.
All these considerations compel us to the conclusion SEIR 564 is legally unobjectionable.
II. FACTS
The Musick Facility consists of about 100 acres of unincorporated land in southern Orange County. Figure 5-1 from SEIR 564, reproduced below, taken from part of the traffic study in the report, nicely encapsulates its location in the county. As the airstrip markings in the upper left-hand quadrant of figure 5-1 show, the land is almost due east of the old El Toro Marine Base (the airstrip markings), which is now the Great Park area. When the Great Park and surrounding housing is finally built, the Musick Facility will represent a northeast boundary of Irvine. To the immediate north is hilly terrain (as indicated by the relative scarcity of street markings), and to the south is the City of Lake Forest. The numbers on the map represent traffic intersections studied in SEIR 564.
The Musick Facility began in 1964 as an honor farm designed to allow inmates to work off sentences by doing agricultural work. The farm gave inmates the chance to do productive work, and at the same time grow food
By 1986, all 65 acres were in agricultural use. But the bucolic quality of the honor farm was destined to change. That year, the County prepared EIR 447 in relation to what is, in hindsight, a very modest expansion of the facility to accommodate 1,535 beds by 2000. EIR 447 was never challenged in court. The document disclosed even then that all 65 acres of agricultural land on the site would eventually be lost to agriculture.
The proposed expansion to 7,584 beds was a product of the mid-1990’s. EIR 564 was prepared in 1996 in that regard. The document came in at 244 pages. EIR 564 was litigated in Musick I. The main jail facilities contemplated by the expansion were to consist of three complexes, each with octagonal modular housing components that would take up most of the 100 acres—save 22 in the southeast corner that might still be farmed by low-risk inmates. Irvine and Lake Forest challenged EIR 564, and the trial court found it deficient in four ways: on the loss of agricultural land, air quality, government services and overall cumulative impact. This court, however, reversed on all four points: EIR 564 did, indeed, disclose an irreversible net loss of agricultural land. (At the time, some 33 “prime” acres were still being farmed at the Musick Facility, as we explained in Musick 1). EIR 564 recognized that the project would create additional nitrous oxide emissions since the project would mean numerous daily trips of about 14 miles, but those would be spread out over a large area. EIR 564 further recognized the need for extra police patrols, but to the effect the project posed the threat of increased crime in areas near the jail, we held that is the sort of socioeconomic impact not covered by the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.). And it sufficiently analyzed the project in relation to the proposed reuse of the El Toro Base as an airport. Meanwhile, during the pendency of the appeal, the County recirculated newly revised sections of EIR 564 dealing with the loss of agricultural land.
This court reversed the trial court’s findings as to the inadequacy of EIR 564 in
Musick I,
but the project still languished for another 11 years. In the meantime, voters in Orange County rejected the use of El Toro Base as an airport in favor of the use of the land as a Great Park. (See
Schroeder v. Irvine City Council
(2002)
So readers can get a sense of proportion between the Musick Facility expansion and the Great Park project, we reproduce figure 3-6, from the section of SEIR 564 which discusses surrounding land uses, including the Great Park development:
(Readers should note that figure 3-6 is a picture of Irvine’s proposals for the Great Park area in 2002. Since then there have been some changes. We reproduce that figure because it graphically illustrates the size relationship of the Musick Facility to the Great Park area.)
While the 2012 SEIR 564 envisions the same expansion to 7,584 beds as did 1996’s EIR 564, the new plan proposes a large H-shaped building in the middle of the 100 acres, with a series of smaller auxiliary buildings on the periphery of the H building, with open-space areas where EIR 564 retained 22 acres for inmate farming. Why no agriculture? The County’s inmate agricultural programs at the Musick Facility were discontinued by 2009 as a result of “budget constraints,” and SEIR 564 notes that since 2000, administrative and personnel costs had significantly eaten into whatever savings was being achieved from inmates growing County food. SEIR 564 spends 10 pages discussing seven possible mitigation measures for the loss of the agricultural land (about which, more in pt. III.).
Irvine filed this action seeking a writ of mandate to invalidate SEIR 564 in January 2013. The trial court rejected Irvine’s arguments, finding:
(1) The changes in the project since EIR 564 (including ceasing all agricultural operations and changing three complexes to one big one) were nicely laid out in a summary of changed items in SEIR 564, and these hardly envisioned a new project requiring a brand new EIR.
(2) The County’s responses to Irvine’s formal comments on SEIR 564 were adequate and certainly proportional to their significance.
(3) The traffic study was adequate.
(4) The examination of the untenability of the mitigation measures for the loss of the farming operation was itself sufficient.
III. DISCUSSION
In litigation attacking an EIR, the ultimate question is whether the certification of the document was a prejudicial abuse of discretion. (Pub. Resources Code, § 21168.5;
2
e.g.,
City of Marina v. Board of Trustees of the California State University
(2006)
As noted above, Irvine has presented its formal challenge to SEIR 564 by way of four main arguments: It shouldn’t have been a “supplemental” EIR at all, the County’s responses to certain of Irvine’s “comments” were inadequate, it didn’t properly account for intervening effects on local traffic in the period prior to completion, and it inadequately demonstrated that the loss of agricultural land as part of the project could not be mitigated.
In terms of sheer space, Irvine’s main focus is on its second argument, the asserted inadequacy of the County’s responses to Irvine’s comments on draft SEIR 564. However, we are going to consider that issue last because of the interrelationship between a lead agency’s responses to comments and the way an EIR treats the merits of various environmental issues. For example, in
Friends of the Eel River v. Sonoma County Water Agency
(2003)
A. “Supplemental” Versus “Subsequent”
Irvine argues a “supplemental” EIR was not good enough; the County should have begun anew with a “subsequent” EIR. There is an immediate anomaly to be recognized in the County’s position here: EIR 564 in 1996 went only 244 pages. SEIR 564—a supposed “supplement”—goes 1,455 pages, or is about six times heftier. Some “supplement.” It is longer than the first edition of War and Peace in the original Russian (1,225 pages). But it has more pictures.
Interestingly, the statute on point, section 21166, 3 treats supplemental and subsequent EIRs in the same category: If there is already an EIR, and there are no “substantial” changes to the project, or surrounding circumstances, or new information since that existing EIR, there is no need to prepare either a subsequent or supplemental EIR. One must go to regulations, often referred to as “CEQA Guidelines” prepared by the state Natural Resources Agency, 4 to find the distinction between “supplemental” and “subsequent” EIRs.
CEQA Guidelines section 15162 covers “subsequent” EIRs.
5
CEQA Guidelines section 15163 covers “supplemental” EIRs. The basic rule is that whenever there is an already approved EIR and a “substantial” change in either
Irvine cites us to no case that actually holds a lead agency’s choice to prepare a supplemental EIR, when a subsequent EIR might arguably have been more appropriate, was fatal to the supplemental EIR. The case Irvine most relies on its opening brief,
Save Our Peninsula Committee v. Monterey County Bd. of Supervisors
(2001)
Two points are salient, though. One, as CEQA Guidelines section 15162’s “may choose” language shows, the choice to proceed by way of a
With these thoughts in mind, we conclude the County did not abuse its discretion in choosing to use EIR 564 as a platform for SEIR 564 instead of beginning from—so to speak—the ground up. Actually, the word “platform” does not do the sequel to EIR 564 justice. The literary relationship between the two documents is more like introductory novella to large novel. EIR 564 is The Hobbit to SEIR 564’s Lord of the Rings.
The actual construction project—expansion of the Musick Facility to 7,584 beds—remains the same. The land affected remains the same. The building configuration is close to the same (a single H-shaped building instead of three complexes with octagonal modules), as are some miscellaneous support buildings and parking structures. EIR 564’s plans for a multilevel parking structure were dropped for a less-intensive at-grade design. It appears the biggest change to the actual project qua project as envisioned in EIR 564 in 1996 is dropping 22 acres from direct agricultural use and instead devoting them to open space.
As for surrounding circumstances, there is of course the substitution of a park and some surrounding residential development for a busy airport. However, no less than 89 pages of SEIR 564—to put that in perspective, more than a third of the original EIR 564—are devoted to post-2000 changes in the area, including projections of traffic patterns that, trading an airport for a park and residences, would obviously be different than they might have been in 2000. We see no abuse of discretion in the County’s perception that
B. Traffic Studies
SEIR 564 includes a traffic study projecting morning and evening rush hour effects of the project—called “LOS” or “levels of service”—on 24 local intersections in the year 2014 (the “interim year”) and in the year 2030 (projected completion of all 7,854 beds). Irvine presents its argument regarding SEIR 564’s analysis of impacts on local traffic by focusing on the problem of what SEIR 564 called the “interim year,” i.e., 2014. Actually, events have overtaken the word “interim.” SEIR 564 was finalized in 2012. The year 2014 functions in SEIR 564 as a de facto baseline of existing conditions.
If we understand Irvine’s argument correctly, it goes like this: Irvine first asserts that SEIR 564 is inconsistent in its descriptions of project phasing. In one place, the document recounts the various construction activities that will constitute “Phase I” of the expansion, and those activities entail the construction of “up to” 1,024 beds by 2018. Then Irvine notes that there is evidence in the administrative record (not in SEIR 564 but in the form of an exhibit to a County staff report from Dec. 2011 giving a timetable for the project) to the effect that County knew construction of Phase I would not even begin until 2015. But, says Irvine, SEIR 564 still uses 2014 as an “interim” year in its studies of traffic and air quality impacts. And further, when Irvine asked for a comment on these timing discrepancies, the County admitted that the earliest true “interim” year given delays in the project—that is, when 1,024 beds will have been added, is now 2018. However, the County did not update its traffic analysis, which was still pegged to 2014. Irvine then cites
City of Santee v. County of San Diego
(1989)
The problem with this argument is that it confuses the need for a stable
project description
with the task of ascertaining the interim traffic impacts of project
construction
as that construction takes place—on a time line that cannot be predicted with certainty. No one would dispute the need for an EIR to give decision makers and the public “an accurate, stable and finite project
Because
Santee
is the case Irvine relies on most, and because it also involved a city opposing a county jail in its own backyard, an examination of that case seems the best way to show the difference between the two matters here.
Santee
arose out of a crisis precipitated in the late 1980’s by the closure of a jail facility in one area of San Diego County, Vista. The county responded by proposing to expand an existing facility at Las Colinas near the city of Santee. But the expansion project was supposed to be temporary. It was only going to last seven years.
(Santee, supra,
It is worth noting, though, that the ostensible win for the city in
Santee
was pyrrhic. The appellate court recognized that the deficiencies in the EIR
all
related to “future activities that the EIR failed to address.”
(Santee, supra,
In the present case, however, we have a stable
project
description. This is therefore not
Santee.
Irvine urges a model of CEQA that would require continuously updated projections of traffic impacts adjusted for any delays in construction in the project or nearby areas. Ironically, the main case it cites for the need for such updating,
Metro Line, supra,
Metro Line
involved a project that was
itself
proposed to alleviate traffic, namely the construction of a Westside Los Angeles light rail line. The
However, the victory for project opponents concerning the omission was again—shades of Santee—pyrrhic. The high court went on to hold that the EIR’s exclusive use of future conditions was
not
prejudicial, because the EIR did include an extensive analysis of year 2030 effects showing no significant adverse impacts.
(Metro Line, supra,
The present case does not involve the mistake made by the light rail authority in Metro Line. SEIR 564 presents detailed traffic analyses on levels of service at area intersections for what is, substantively, a year reflecting existing conditions (2014 for an EIR finalized in 2012) and the year of projected completion (2030). The only discrepancies to which Irvine points are functions of delays in the project, and those relate to traffic—by definition a fluid condition—and not the project itself.
Irvine points to a passage in
Metro Line
that notes the need of decision makers and the public to know the “short- and medium-term environmental costs” of achieving a given improvement, rather than just conditions at completion in the future.
(Metro Line, supra,
Finally, even if Irvine were correct, any failure to “update” the traffic impact studies would, under
Metro Line,
be non-prejudicial. In
Metro Line,
the analyses of projected conditions in the year 2030
alone
established that using current conditions as a baseline would not have yielded substantially different results. Here, the public and decision makers were given not just one, but two sets of comparison years—the beginning of the project (2014) and the completion (2030). And when one compares both of them,
Metro Line’s
point about harmlessness applies all the more. The analysis for 2030, in fact, was able to predict slightly less traffic congestion over 2014, given certain improvements in local traffic conditions projected to be completed in the interim. If the omission of the use of existing conditions in
Metro Line
was an “insubstantial, technical error,” any discrepancies here resulting from delay in start dates also qualify as insubstantial and technical errors.
(Metro Line, supra,
C. Loss of Agricultural Land
SEIR 564 discusses seven possible mitigation measures for the loss of the agricultural land resulting from the Musick jail expansion. None of the proffered measures were found feasible, and Irvine challenges SEIR 564’s findings as to three of those mitigation measures: (1) the purchase of conservation easements on existing agricultural land to prevent it from being used in the future for non-agricultural purposes, (2) a transfer of development rights program (sometimes called TDRs), and (3) a “right to farm” ordinance.
Preliminarily, we should note that the rejection of the most obvious mitigation measure to preserve land for agricultural use—namely, simply going out and buying land to replace what has been lost to agriculture—is not challenged. That’s important, because, as a response to Irvine’s various
Conservation easements:
Even in the Central Valley, there are times when agricultural conservation easements or “ACEs” are not feasible, as recently shown in
Friends of King River v. County of Fresno
(2014)
And if, as in Friends of King River, ACEs do not replace lost farmland in the Central Valley, they certainly are not going to do so in the County. In the County, the sheer astronomical expense of land supports the finding of SEIR 564 that the purchase of ACEs is a nonstarter. Owners of what little agricultural land is left know the value of that land if developed. The reasonable inference is that the purchase of a conservation easement means paying a large percentage of the market value of the land, so much so that this mitigation measure would be the functional equivalent of trying to buy land not already in agricultural use and convert it to agricultural use.
Further, as pointed out elsewhere in SEIR 564 and in the County’s response to questions on the point, converting land not currently in agricultural use to agricultural use carries its own adverse environmental effects, such as the creation of dust, odors, pesticide use and machinery noise.
TDRs:
The TDR approach appears, if anything, to be even less viable. A TDR is itself conceptually easy to understand: If the law permits, an owner who
can
develop a given property trades that right, or parts of that right, to someone who wants to develop another property. (E.g.,
Mitsui Fudosan
(U.S.A.),
Inc.
v.
County of Los Angeles
(1990)
Right-to-farm Ordinance: This is the least viable option of all. As noted, SEIR 564 recognizes that the conversion of current non-agricultural land to agricultural land will itself entail significant environmental effects, including nuisance suits. Beyond that, a right-to-farm ordinance is meaningless where no landowner wants to farm. A response to an Irvine comment revealed the fact that about $60,000 per acre is currently the break-even point for the economic viability of agricultural land. Using a substantial evidence standard of review, it is a reasonable inference that no one will want to convert land that is currently non-agricultural and put it to agricultural use even if they have the ostensible legal right to do so.
D. Comment and Response
1. Background Law
We now come to Irvine’s main argument, which is that deficiencies in the County’s responses to Irvine’s comments on the draft SEIR 564 require a re-do of the final EIR. The background for this argument is a 13-page, single-spaced letter, dated September 24, 2012, from Sukheee Kang, then mayor of Irvine, to the County, containing 88 items. The letter was obviously drafted for the mayor by counsel, containing as it does a citation to CEQA
To call all 88 items “comments” would be a misnomer. Some are mere argumentative assertions, obviously intended to preserve an issue for litigation. 11 Some are argumentative assertions followed by a demand for a change in the EIR. 12 Some are the functional equivalent of one litigant’s requests for production of documents to another. 13 Some appear to be classic litigation interrogatories. 14 And some are actually genuine questions. 15 In this appeal, Irvine focuses on two sets of the County’s responses to its comments. One set involves the traffic studies and the other the agricultural mitigation discussion (hence we have discussed those areas already in order to give readers a better context with which to evaluate the responses). Before we turn to the two sets, though, some background in regard to CEQA’s coverage of the topic of comment-and-response is necessary.
The statutory authority requiring a lead agency to respond to “comments” is found in section 21153. The statute is essentially a requirement that lead agencies consult with other
public
agencies—including cities that border
The text of the statute does not specifically require responses to the comments.
That
requirement, rather, derives from the guidelines promulgated by the state Natural Resources Agency, and in particular current CEQA Guidelines section 15088.
18
CEQA Guidelines section 15088’s predecessor,
On the other hand, we see nothing in CEQA Guidelines section 15088 that allows project opponents to use the comment-and-response process to wear down a lead agency, or delay a project, by the simple expedient of filing an onerous series of demands for information and setting up a series of hoops for the lead agency to jump through. The comments of public agencies must not only be “substantive,” but also “within an area of expertise” of that agency or otherwise involve matters required to be “carried out or approved by the agency.” (§ 21153, subd. (c).) We note in this regard that, unlike the typical discovery process in litigation, the recipient of onerous demands for information by a project opponent has no recourse to the courts for relief (such as a protective order or other legal device) to prevent the comment-and-response process from being abused by project opponents.
The case law dealing with actual examples of adequate and inadequate responses, however, can be a bit daunting. There is, alas, a know-it-when-I-see-it quality to the discussion of the adequacy of individual responses to individual questions. 19
The earliest case to confront the question of the adequacy of a lead agency’s responses was
Kern County, supra,
Kern County
involved a large (275 acres) subdivision project in a national forest at fairly high altitude (5,300 feet). The Attorney General’s office objected to the subdivision, in part because of serious concerns about the availability of water and the impact of the project on ground water pollution, plus the location of the subdivision: right over the San Andreas Fault. (See
Kern County, supra,
About a decade later, another Central Valley case,
Cleary,
took
Kern County
as its inspiration, so much so that
Cleary
included a large swath of text from
Kern County
as the engine of its discussion on the comment-and-response issue. (See
Cleary, supra,
An additional comment-and-response problem in
Cleary
was the state food and agriculture department’s concern about the effect the project would have on surrounding agricultural land, and in particular how the project might affect the property values of nearby landowners who either had, or had not, committed their lands under long-term contracts to continued agricultural use.
(Cleary, supra,
But it was not all bad news for the lead agency in
Cleary
as to its responses either. The court distinguished
new
issues from ones already covered. The state Department of Health had expressed “rather general concerns” about increased noise levels, and the appellate court noted the “element of increased noise was considered” in the draft EIR.
(Cleary, supra,
A deficient response was also found in
San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus
(1994)
So the cases relied upon by Irvine, and others we have found where responses to comments were inadequate, seem to us to involve more serious lacunae than our case. On the other side, Twain Harte does provide a few clear examples of what did pass muster. Twain Harte concerned the EIR supporting a county’s general plan. One letter writer thought the provision conditioning development on adequate available water was a bad idea because the provision gave too much power to water agencies to allow development. Another letter writer made the same point about sewer lines—it gave sanitation agencies too much power to allow development. And a third suggested a requirement that, as a mitigation measure, planning approval for water and sewer lines must be required before obtaining overall planning approval. The first two letters were not specifically responded to at all, and the third only generated a paragraph response pointing out that water and sewer companies were legally required to provide hookups regardless of the county’s planning preferences. A response to another comment revealed that the county sent letters to the various water and sewer agencies—apparently in the form of a survey—the results of which appeared in two revised tables in the EIR. The nature of the tables and the survey was not detailed in the Twain Harte opinion, but the paragraph on required hookups and the revised tables were found sufficient because they revealed the very truth that the letters had first noted: Land use determinations would be made “initially” based on the availability of water and sewer services. (Twain Harte, supra, 138 Cal.App.4th at p. 681.)
2. Comments and Responses Regarding Traffic
Irvine propounded 88 separate “comments” to the County but, mercifully, has narrowed its appeal to only two sets of comments and responses: The first set concerns comments Nos. 32, 33, 39, and 45 all dealing with the impacts on local traffic discussed above in part III.B. The second set is directed at comments Nos. 61, 63, 64 and 67 involving the topic of mitigation of the loss of agricultural land, discussed above in part III.C. We begin by setting out both the comments and responses to the first set.
Comment No. 32: “Please specifically disclose the criteria and process used by the County of Orange Public Works staff to determine which additional intersections should be added to the Traffic Study área.”
Response to Comment No. 32: “The project study area was based on the intersections analyzed in EIR 564. In addition, in consultation with County of Orange Public Works staff, the ramps at Alton Parkway/SR-241 were added to the analysis based on the potential for traffic to utilize SR-241 once Alton Parkway was extended.”
Analysis of Response to Comment No. 32: The response is adequate for three reasons. One, the comment does not directly raise a “significant environmental issue,” but merely touches on the significant issue of traffic impacts already covered by the EIR. Two, it is not really a comment at all. It functions as an interrogatory directed to the authors of the EIR. Three, considered as an interrogatory, the County answered the question: Two new intersections (though one would learn that from the 2014 and 2030 traffic study tables) were added to account for traffic to and from a toll road after a connector road was extended.
Comment No. 33:
“Please explain the factual basis for your assumption that traffic generation today is the same as it was in 1996. To the extent your explanation is based on inmate population, please explain (1) the relationship
Response to Comment No. 33: “The project trip generation was based on data provided by the Orange County Sheriff Department, as described and detailed in the approved EIR 564.”
Analysis of Response to Comment No. 33: As interrogatory answers go, this one at first appears to be vulnerable to the charge of being non-responsive, but that’s because of the comment’s own ambiguity in the phrase “traffic generation.” If one concludes that “traffic generation” refers to all the new traffic that will be associated with the development of the Great Park and its surrounding residential areas after 2000, the response obviously does not answer the question because the response is pegged to a 1996 document, not existing conditions. However, the County appears to have interpreted the words “traffic generation” to refer to just the traffic generated by the expansion of the Musick Facility itself and on that score the response is certainly adequate in referring to EIR 564. That seems to us to be reasonable. As we have noted above in our discussion of the “supplemental versus subsequent” issue, the project itself is still substantially the same as in 1996, and if Irvine had wanted some discussion of “new” traffic post-2000, its comment certainly did not make that clear.
Comment No. 39: “Please explain whether and to what extent the DSEIR accounts for the programmed traffic improvements that have been added to or removed from the North Irvine Transportation Mitigation program since 2006. We request this explanation in an effort to ensure that your forecasts of future conditions (both traffic conditions and assumed improvements) are accurate.”
Response to Comment No. 39:
“See response to comment 28.” Response to comment No. 28: “The latest Irvine and Lake Forest approvals at the time the supplemental traffic analysis was completed (2009) were included in the analysis. Land use changes approved by the City after that date were not included in the analysis. However, to assess the difference in project opening levels of service (LOS) between the latest ITAM and recent project approvals within the City of Irvine (including the approved Great Park Neighborhood SEIR) and the Supplemental Traffic Study for the Jail Expansion, a LOS [(level of service)] comparison is provided. [¶] A comparison of intersection capacity utilization (ICU) from the LSA Supplemental Traffic Analysis and the approved 2011 Heritage Fields Traffic Study is provided in Table A. As shown in this Table A, all study area intersections operate at satisfactory LOS based on the LOS criteria for both the City of Irvine and the City of Lake
Analysis of Response to Comment No. 39: There are two reasons the response was adequate. First, the comment did not raise a significant environmental issue at all, it was an interrogatory directed at the draft EIR itself, not an issue. Second, as an interrogatory, it answered the question: The County used information from Irvine and Lake Forest as of 2009.
Comment No. 45: “Based on the recent approvals of the Great Park and Heritage Fields projects, Irvine requests that analysis of the Sand Canyon/Interstate 5 Northbound and Southbound ramps and Sand Canyon Avenue/Marine Way be included in the traffic study and DSEIR.”
Response to Comment No. 45: “The project would contribute nominal traffic, if any, to Sand Canyon Avenue/Interstate 5 (1-5) northbound ramps, Sand Canyon Avenue/Marine Way, or Sand Canyon Avenue/I-5 southbound ramps. Therefore, these intersections were not included in the Supplemental Traffic Analysis.”
Analysis of Response to Comment No. 45: The comment only obliquely raises an environmental issue, and not a significant one at that—the impact of the Musick Facility expansion on two traffic points along Interstate 5. The County’s response qua answer is conclusory to be sure—the County says there’s no need to consider these two points because the project would create only nominal traffic to them, and that assertion is indeed not supported. On the other hand, the comment on its face is essentially a demand for two new intersections to be included in the study, and, in SEIR 564, the criteria for which intersections rated study were laid out in a table involving levels of service based on information obtained from Irvine itself as well as Lake Forest. Those criteria centered on percentages of “intersection capacity utilization” (or “ICU” in the jargon), in which intersections are given grades based on the percentage of capacity utilization. SEIR 564’s selection of which intersections was based on which intersections were busiest. It is a reasonable inference from the traffic tables in SEIR 564 that the two off-ramps were nowhere close enough to capacity to be worth studying in traffic impacts.
3. Comments and Responses Regarding Agricultural Mitigation
The analysis of the County’s responses to Irvine’s agricultural mitigation comments requires a slight change in format, because the County’s response was a block response to all of them. And that block is too generous to quote
Comment No. 61: “With regard to Mitigation Measure No. 4, the DSEIR assumes, without providing any actual data to support the assumption, that the costs of producing conservation easements would be prohibitively high. Please provide data to back up the assertion.”
Comment No. 63: “In its discussion of Mitigation Measure No.4, the DSEIR assumes, without providing any data, that easement costs ‘could be very high, requiring the County to find funding sources within its existing budget structure.’ Please provide data to back up the assertion.”
Comment No. 64: “On Page 4.12, the DSEIR speculates that it could be difficult to locate willing sellers of development rights ‘in areas of escalating land values.’ Not all areas of the County are currently experiencing escalating land values. Please detail whether, and to what extent, the County has made an effort to locate willing sellers of development rights.”
Comment No. 67: “The DSEIR claims ‘a [Transfer of Development Rights (TDR)] program would do little to mitigate for the loss of agricultural land due to the project because protecting agricultural lands offsite would not directly offset the project-related conversion of agricultural lands at the project site.’ There is no apparent factual basis for this concern. The preservation of agricultural lands is a countywide issue (a fact that is acknowledged several times in the DSEIR). While preservation of agricultural lands onsite may be preferred, it is not essential to the mitigation of the impact.”
Synopsis of Collective Response to Comments Nos. 61, 63, 64, and 67:
The response to Irvine’s objections to the possible mitigation avenues for the loss of agricultural land first recounted that these mitigation concerns had already been voiced by Irvine in its opposition to EIR 564 and litigated in
Musick I.
The County then noted—as we have recounted above—that by 2012 the cost of raw land in the vicinity of the project was about $2 million per acre and large scale agriculture is not economically viable after the price of land reaches about $60,000 per acre. It went on to note that water costs more in the County than in other regions, including Oxnard and Ventura, and living costs in the County are also higher than competing regions, meaning the price of agricultural labor would be higher as well. The obstacles to agriculture in the County are further compounded by constraints that include limitations on hours of operation, limits on pesticide and fertilizer use, required setbacks from adjacent non-agricultural uses, and even the “cleanup” that is required when farm equipment is used on public roads. Add to that the fact that
Analysis of Response to Commentsr Nos. 61, 63, 64 and 67: All the comments were essentially different ways of attacking SEIR 564’s findings regarding the nonfeasibility of proposed mitigation measures Nos. 4, 5 and 6, a topic previously covered in this already-too-long opinion. Beyond that, the response, as we have noted, erases any doubt about the mitigation measures. The price of raw land had gone up since the draft EIR and that price makes new commercial agriculture even more cost prohibitive.
4. Prejudice
The County asserts Irvine has not demonstrated any prejudice from any arguable inadequacy of its responses. We agree. Even if the language in CEQA Guidelines section 15088, subdivision (c) about the need to address comments raising significant environment issues “in detail” with “factual” support in “reasoned” and non-conclusory analysis were extended to its furthest limit, the
Legislature
has still required a prejudicial abuse of discretion to decertify an EIR. (See § 21168.5.) And
Eureka Citizens
has specifically indicated prejudice in some purported inadequacy of a response must be shown. (See
Eureka Citizens, supra,
At its best, the comment-and-response process in CEQA produces a
better EIR,
by bringing to the attention of the public and decision makers significant environmental points that might have been overlooked. After all, an EIR is an informational document (e.g.,
Metro Line, supra,
But the comment-and-response process can also be abused. At its worst, it could become an end in itself, simply a means by which project opponents can subject a lead agency’s staff to an onerous series of busywork requests and “go fetch” demands. As Presiding Justice McConnell wrote in
Citizens for Responsible Equitable Environmental Development v. City of San Diego
(2011)
IV. DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
Aronson, J., and Fybel, J., concurred.
Notes
CEQA is an acronym for the California Environmental Quality Act, Public Resources Code section 21000 et seq.
All undesignated statutory references in this opinion are to the Public Resources Code.
Which we reproduce now:
“When an environmental impact report has been prepared for a project pursuant to this division, no subsequent or supplemental environmental impact report shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs:
“(a) Substantial changes are proposed in the project which will require major revisions of the environmental impact report.
“(b) Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report.
“(c) New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available.” (§ 21166.)
See
Communities for a Better Environment v. South Coast Air Quality Management Dist.
(2010)
We will refer to all regulations found in title 14 of the California Code of Regulations by their CEQA Guideline section number.
Subdivision (b) of which provides: “If changes to a project or its circumstances occur or new information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent EIR if required under subdivision (a). Otherwise the lead agency shall determine whether to prepare a subsequent negative declaration, an addendum, or no further documentation.” (CEQA Guidelines, § 15162, subd. (b).)
CEQA Guidelines section 15163 provides in its entirety:
“(a) The lead or responsible agency may choose to prepare a supplement to an EIR rather than a subsequent EIR if:
“(1) Any of the conditions described in Section 15162 would require the preparation of a subsequent EIR, and
“(2) Only minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation.
“(b) The supplement to the EIR need contain only the information necessary to make the previous EIR adequate for the project as revised.
“(c) A supplement to an EIR shall be given the same kind of notice and public review as is given to a draft EIR under Section 15087.
“(d) A supplement to an EIR may be circulated by itself without recirculating the previous draft or final EIR.
“(e) When the agency decides whether to approve the project, the decision-making body shall consider the previous EIR as revised by the supplemental EIR. A finding under Section 15091 shall be made for each significant effect shown in the previous EIR as reyised.”
Here is the relevant passage: “CSTI’s contention that the EIR was improperly prepared as a ‘project EIR’ instead of a ‘program EIR’ improperly focuses on the EIR’s title rather than its substance. There are many different natnes that have been applied to EIRs. For example, there are project EIRs . . . program EIRs . . . staged EIRs . . . master EIRs . . . subsequent EIRs . . . focused EIRs . . . and supplemental EIRs . . . . [¶] For this reason, courts strive to avoid attaching too much significance to titles in ascertaining whether a legally adequate EIR has been prepared for a particular project.” (Treasure Island, supra, 227 Cal.App.4th at pp. 1047-1048, citations omitted & italics added.)
The phrase first appeared in
County of Inyo v. City of Los Angeles
(1977)
And in fact there is a detention facility there still. (See
In re G.L.
(2014)
For example, suppose an already approved residential housing development in the Great Park area is itself delayed.
E.g.: “6. The DSEIR also does not comply with CEQA Guideline 15150(d), which states: ‘where an agency incorporates information from an EIR that has previously been reviewed through the State Review System, the State identification number of the incorporated document should be included in the summary or designation described in subdivision (c).’ That requirement has not been followed throughout the DSEIR.”
E.g., “5. The DSEIR’s protocol for incorporation by references does not comply with CEQA Guideline 15150. That Guideline states ‘where an EIR or negative declaration uses incorporation by reference, the incorporated part of the referenced document shall be briefly summarized where possible or briefly described if the data or information cannot be summarized. The relationship between the incorporated part of the referenced document in the EIR shall be described.’ The DSEIR does not provide that degree of explanation/ summarization. Please revise the DSEIR to include the required level of detail.”
E.g.: “2. The DSEIR repeatedly states that the Project will result in the long range expansion of the facility which would result in 7,584 beds. However, the DSEIR is not consistently clear as to whether those beds will or will not be ‘rated’ as defined in the DSEIR. Because the County has relied upon the number of beds in determining the forecasted inmate population, and relied on that inmate population in forecasting various impacts (e.g., traffic), it is important to understand whether 7,584 is the forecasted worst case inmate population, or merely a ‘rated’ bed count. Please provide the requested data and accompanying explanation/analysis.”
E.g.: “33. Please explain the factual basis for your assumption that traffic generation today is the same as it was in 1996. To the extent your explanation is based on inmate population, please explain (1) the relationship between inmates and traffic generation, and (2) provide data indicating the number of inmates at the Musick Honor Farm when the 1996 conditions were ascertained.”
E.g.: “25. Please indicate whether the staffing levels appearing in Table 3.B correspond with 1024 inmates or 512 inmates.”
The statute provides in its entirety:
“(a) Prior to completing an environmental impact report, every local lead agency shall consult with, and obtain comments from, each responsible agency, trustee agency, any public agency that has jurisdiction by law with respect to the project, and any city or county that borders on a city or county within which the project is located unless otherwise designated annually by agreement between the local lead agency and the city or county, and may consult with any person who has special expertise with respect to any environmental impact involved. In the case of a project described in subdivision (c) of Section 21065, the local lead agency shall, upon the request of the project applicant, provide for early consultation to identify the range of actions, alternatives, mitigation measures, and significant effects to be analyzed in depth in the environmental impact report. The local lead agency may consult with persons identified by the project applicant who the applicant believes will be concerned with the environmental effects of the project and may consult with members of the public who have made written request to be consulted on the project. A request by the project applicant for early consultation shall be made not later than 30 days after the date that the determination required by Section 21080.1 was made with respect to the project. The local lead agency may charge and collect a fee from the project applicant in an amount that does not exceed the actual costs of the consultations.
“(b) In the case of a project described in subdivision (a) of Section 21065, the lead agency may provide for early consultation to identify the range of actions, alternatives, mitigation measures, and significant effects to be analyzed in depth in the environmental impact report. At the request of the lead agency, the Office of Planning and Research shall ensure that each responsible agency, and any public agency that has jurisdiction by law with respect to the project, is notified regarding any early consultation.
“(c) A responsible agency or other public agency shall only make substantive comments regarding those activities involved in a project that are within an area of expertise of the agency or that are required to be carried out or approved by the agency. Those comments shall be supported by specific documentation.” (§ 21153, italics added.)
Here is the relevant passage: “Ideally, all public agencies exercising authority over any natural resource which conceivably might be affected by a proposed project should be consulted. Likewise, if a city or county is the site of the project or in an area which may be subjected to major environmental effects from the projects, it should be consulted. The public agency responsible for the preparation and certification of the final EIR should seek out those other public agencies who exercise authority over natural resources of whatever nature and provide those agencies with ample opportunity to voice objection to any proposed project. The appropriate policy should be one of inclusion, not exclusion, of other public agencies.”
(Whitman v. Board of Supervisors, supra,
Here is the complete text:
“(a) The lead agency shall evaluate comments on environmental issues received from persons who reviewed the draft EIR and shall prepare a written response. The lead agency
“(b) The lead agency shall provide a written proposed response to a public agency on comments made by that public agency at least 10 days prior to certifying an environmental impact report.
“(c) The written response shall describe the disposition of significant environmental issues raised (e.g., revisions to the proposed project to mitigate anticipated impacts or objections). In particular, the major environmental issues raised when the lead agency’s position is at variance with recommendations and objections raised in the comments must be addressed in detail giving reasons why specific comments and suggestions were not accepted. There must be good faith, reasoned analysis in response. Conclusory statements unsupported by factual information will not suffice.
“(d) The response to comments may take the form of a revision to the draft EIR or may be a separate section in the final EIR. Where the response to comments makes important changes in the information contained in the text of the draft EIR, the lead agency should either:
“(1) Revise the text in the body of the EIR, or
“(2) Include marginal notes showing that the information is revised in the response to comments.” (CEQA Guidelines, § 15088, italics added.)
Indeed, if we were to apply Irvine’s approach to the sufficiency of responses analyzed in the appellate opinions in this area—opinions going both ways—one wonders how many opinions would themselves be held inadequate because their discussion of the comment-and-response issue on appeal was insufficiently “detailed” and “non-conclusory.”