By William W. Abbott
The Second Appellate District tackled several technical, but important legal considerations in a newly published decision, including whether the lead agency must analyze the impact of the environment on the project. (Ballona Wetlands Land Trust v. City of Los Angeles (December 2, 2011, B231965) ___ Cal.App.4th ___) This case involves the aftermath to an earlier court decision finding the EIR for the Playa Vista project to be deficient, and directing the City of vacate the approvals and correct certain EIR deficiencies. Consistent with the court’s earlier ruling, the City and developer went back to work on a revised EIR, and as a result of amendments to the CEQA Guidelines, included an analysis of greenhouse gas emissions, and re-approved the project, with mitigation measures. Opponents filed an opposition to the return to the writ, as well as a new petition. The trial court consolidated the two actions, denied the petition, then discharged the writ, following which the opponents appealed. The issues on appeal included sufficiency of analysis and disclosure of archaeological resources and mitigation, sufficiency of analysis of GHG as it related to coastal flooding; and whether the opponents could renew a challenge to the project description.
With respect to archaeological resources, the appellate acknowledged the CEQA rules prioritizing preservation in place as the preferred means of mitigating impacts to archaeological resources. (Guidelines Section 15126.4) The first EIR identified two sites, and disclosed that a riparian corridor could not be constructed in a manner which avoided impacts and concluded that the only feasible mitigation was data recovery. In the first EIR lawsuit, the appellate court rejected this approach, saying that the analysis rejecting preservation in place was insufficient. In the second EIR, the lead agency provided additional discussion of preservation in place, as well as other potential mitigation strategies. This time around, the appellate court upheld the analysis as satisfying CEQA. Turning to global warming, the appellate court considered the argument that the EIR was required to address sea level rise impacts on the project, as well as the project’s contribution to sea level rise on surrounding areas. The appellate court, suggesting that Guidelines section 15126.2(a) overstepped the statute, rejected the argument that the EIR was required to study the impact of the environment on the project, citing earlier decisions reaching similar conclusions. (City of Long Beach v. Los Angeles Unified School District (2009) 176 Cal.App. 4th 889; South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604) Applying the substantial evidence test, the appellate court noted that there was a dispute in the record over the potential impact of global sea rise on the project, but as there as adequate, competent evidence in the record to support the lead agency’s conclusion that the project site would not be inundated by sea rise, the EIR satisfied its disclosure obligation. The opponents also sought to challenge the project description. However, this went beyond the scope of the judgment in the first action, and the trial court’s jurisdiction is limited to insuring compliance with the terms of writ.
Comment: One possible interpretation of this case is that a reviewing court will apply an increased level of scrutiny to the rejection of preservation-in-place mitigation for archaeological resources in recognition of the priority attached to this approach by statute and guidelines. Concerning the question of whether to analyze the impact of the environment on the project, readers should note that the appellate courts have not been uniform on this issue. Finally, this case provides motivation to losing defendants/respondents in CEQA cases to argue to a trial court for specificity in the form of an adverse judgment for the purpose of having a better defined CEQA path to follow in subsequent proceedings.
William W. Abbott is an attorney 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, or 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.