By William W. Abbott

Town of Atherton v. California High-Speed Rail Authority (2014) 228 Cal.App.4th 314.

Programmatic EIRs invariably invoke the uneasy question, of “how much information is enough?” This question is reminiscent of the challenge to the United States Supreme Court in defining obscenity and Justice Potter Stewart’s concurring opinion when he acknowledged the difficulty of articulating a standard, writing “I know it when I see it”, and then concluding that the movie in question was not obscene. The Third District Court of Appeal recently wrestled with CEQA’s equivalent to defining the undefinable, concluding that the level of detail on a programmatic EIR was sufficient.

The most recent treatment of the topic involves the various challenges to the decision of the California High-Speed Rail Authority in certifying a program EIR for a preferred route corridor from the Bay Area into the Central Valley. Town of Atherton v. California High-Speed Rail (2014) 228 Cal.App.4th 314. The three CEQA issues which made their way to the Court of Appeal were: (1) did the program EIR improperly defer on the vertical profile options of the alignment; (2) the EIR utilized a flawed revenue and ridership model; and (3) the Authority improperly rejected an alternative offered up by a third party consultant.

For purposes of this litigation, the state’s consideration of a high speed rail system dates back to 1993, and looked at three different passes for access from the Central Valley to the Bay Area: Altamount Pass, Pacheco Pass and Panoche Valley, and in this evaluation, Altamont Pass was preferred. That analysis also considered biological and farmland impacts, along with rail system operating characteristics and efficiencies. In 2005, the Authority commissioned a program EIR to examine corridors between Altamont and Pacheco Passes. Following certification, the Town of Atherton and other parties challenged the EIR. In 2008, the trial court agreed with the opponents, and issued a writ setting aside the resolution approving the Pacheco Pass alternative.  The court denied a stay against any project level studies.

In 2010, the Authority certified the revised final PEIR, and following re-approval of the Pacheco Pass network alternative, filed a return to the writ in the trial court. The petitioners challenged the return to the writ (Atherton I) and opponents filed a new action (Atherton II) challenging the sufficiency of the PEIR. The trial court granted partial favorable relief to both the Atherton I and II petitioners. Dissatisfied with the relief, petitioners in both actions appealed.

On appeal[1], the court of appeal reversed, upholding the sufficiency of the programmatic document. The first CEQA challenge was that the PEIR failed to evaluate the impact of the vertical alignment of the rail as it passed through areas in the Peninsula. This first EIR was a programmatic EIR, and did not include specifics. Those characteristics were evaluated in a second tier EIR (which the trial court had declined to stay following the original trial court proceeding.) In June 2010, the preliminary alternatives analysis report for the second tier EIR carried forward several alternatives: aerial viaduct, berm, at grade, covered trench/tunnel and deep tunnel were carried forward for analysis. Immediately prior to the certification of the revised final PEIR in Atherton I, the lead agency issued a supplemental analysis report which identified an elevated structure was the only feasible alternative for the Belmont-San Carlos-Redwood City portion of the corridor. The opponents argued that the evaluated alignment was reasonably foreseeable and should have been included in the programmatic EIR. Relying upon the decisions in In re Bay-Delta (2008) 43 Cal.4th 1143 and Al Larson Boat Shop (1993) 18 Cal.App.4th 729, the appellate court disagreed, indicating the proper focus was the decision then ripe for review, and the constant updating with new site specific information could result in endless rounds of document recirculation, undermining the purposes of tiering. The court then addressed the dispute over ridership information. Reciting the substantial evidence test, the court characterized this as a dispute among experts and finding sufficient competent evidence in the record, deferred to the lead agency. The final CEQA claim involved consideration of alternatives. The opponents had retained a French engineering company (Setec) to develop additional alternatives. The Authority had rejected those alternatives on the basis that the alternatives were infeasible or similar to alternatives already considered. Procedurally, the court found that one of the alternatives (Altamont Pass) had been addressed and resolved in the Atherton I litigation. The final PEIR considered three alternatives for Dumbarton Bridge crossing. The final PEIR noted the relative greater impacts to bay wetlands from these alternatives (as compared to the Pacheco Pass alternative) as well as similarities as to two of these alternatives with alternatives previously evaluated. In a similar vein, the Authority found other Setec alternatives to be similar to alternatives previously evaluated by the lead agency. Turning to three Fremont alternatives, the opponents noted that two were problematic, but challenged the rejection of one on the basis that it would have required Union Pacific right of way acquisition (noting that the lead agency contemplated such right of acquisition for the Peninsula portion.) The court concluded that basis of the rejection  was sufficient given the railroad’s overall opposition to relinquishing any right of way, and noted that the opponents had failed to show that this alignment was substantially different from alignments already considered.

Lessons learned: First, program EIRs remain valid CEQA tools, although the debate over the level of detail is not resolved with this decision. The lead agency is well-served in documenting the programmatic nature of the decision, coupled with clarity as to what is not being decided. Second, the courts will defer to the lead agency, but to earn that deferment, there needs to be substantial credible evidence in the record. The law presumes such evidence exists, and it is up to the opponents to prove to the contrary. Third and finally, an expansive consideration of alternatives at the outset (with the rationale for why particular ones were not carried forward), may yield significant benefits for the lead agency later on when facing new alternatives volunteered by project opponents.

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.

[1] The initial issue addressed by the appellate court was whether the state action litigation had been preempted as a result of the federal government taking jurisdiction over the project. The court devotes considerable analysis to this issue, ultimately rejecting the preemption argument.