By William W. Abbott
The Lawrence Berkeley National Laboratory (“LBNL”) is a federal facility, operated by the University of California Berkeley. Its primary facility is located in the hills above Berkeley, although it shares onsite campus facilities and leases offsite facilities in Berkeley, Oakland and Walnut Creek. In January, 2007, the Regents published a DEIR for a Long Range Development Plan (“LRDP”). The EIR was prepared as a program-level document, describing the likely improvements to the site through the year 2025. The LRDP called for an increase of roughly 600,000 square feet of new space, additional employees, parking, and development of a campus-like setting, “fostering interaction and informal encounters among lab staff…” The EIR addressed 5 alternatives: no project, reduced growth alternative 1, reduced growth alternative 2, preservation alternative with Non-LBNL use of Historical Resources and a partial offsite alternative. Petitioners filed a CEQA challenge, and after trial, the court ruled for the petitioners with respect an argument that the FEIR should have been recirculated due to new information raised for the first time in responses to comments, but otherwise ruled for the Regents. Both sides appealed.
The appellate court first addressed the project-opponent’s appellate arguments: insufficient range of project alternatives and failure to consider numerical benchmarks and standards pertaining to water quality. In assessing the challenge to the range of alternatives, the appellate court relied upon the articulation of six objectives and underlying purpose of the project, which were, to some degree, specific to the existing LBNL site. In response to the argument that the EIR was required to consider a true offsite alternative, the appellate court concluded that the range of alternatives was sufficient, and the EIR was “not required to consider every conceivable alternative.” The court went on to observe that a true offsite alternative would not meet the lead agency’s primary objective of creating a campus-like setting, “and would nullify most, if not all, of the other project objectives as well.” To the extent the opponents were now challenging the framing of project objectives; it was too little, too late as the issue had not been brought up administratively or in the trial court. To the extent the opponent’s challenge was to the sufficiency of the evidence supporting the Regents’ rejection of the offsite alternative, more than sufficient evidence supported the EIR’s conclusion that the offsite alternative would not meet project objectives.
The appellate court relied upon failure to exhaust administrative remedies to address the remaining claims. As to the opponent’s argument that the Regents failed to consider numerical benchmarks and standards pertaining to water quality, the opponents’ general identification of water quality impacts, this was insufficient to preserve the more specific issue regarding benchmarks. The court also agreed with the Regents’ appeal that petitioner had not exhausted its administrative remedies arguing for recirculation, based upon information inserted in the FEIR with respect to the greenhouse gas emissions. The opponents had the opportunity, prior to certification of the EIR, to bring this to the lead agency’s attention. That failure barred the claim, and the appellate court (reversed the trial court on this issue.
This case underscores the benefit of careful articulation of project objectives and purposes by the lead agency. The appellate court followed the lead set by the Regents in setting project objectives. Lead agencies should avoid the temptation to set such rigid criteria that consideration of any other alternative is effectively precluded. As this case illustrates, such structured articulation can be challenged, although in the facts of Jones, the claim was barred for failure to exhaust administrative remedies.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.