In the never-ending saga for the City of Oakland (“City”) to retain its professional baseball team after losing the Raiders to Las Vegas and the Warriors to San Francisco, the City proposes to construct a new ballpark and a large adjoining development featuring commercial and residential buildings in the Port of Oakland. (“Project”) East Oakland Stadium Alliance (“Alliance”) filed a writ of mandate challenging the environmental impact report (“EIR”). The trial found inadequate the mitigation measure designed to address the project’s adverse wind impacts, but the trial court rejected all of Alliance’s other arguments. The First Appellant Court (“Court”) affirmed the trial court’s decision.
The Court gave a detailed analysis of the requirements for an EIR to defer mitigation measures for Greenhouse Gas Emissions (“GHG”) and Wind impacts. In the case of Greenhouse Gas Emissions, the Court determined that the EIR met the requirements for §15126.4 and in the instance of the wind impact the City failed to provide specific performance standards.
Greenhouse Gas Emissions
Alliance contended the EIR improperly deferred mitigation of the Project’s GHG. The EIR required that for a finding of no significance over its 30-year life, the plan will achieve no net additional GHGs. The current level of emissions was quantified and reported in the EIR and the requirement of “no net additional emissions” is no different from a quantitative cap on emissions set at the current level. The EIR determined that, without mitigation, the Project failed to meet this standard.
To reduce GHG emissions to the significance standard of achieving no net additional emissions, the EIR adopted a single mitigation measure that prohibited the City from approving any construction related permit for the project unless the project sponsor has “retained a qualified air quality consultant to develop a Project-wide GHG Reduction Plan (“Plan”) that shall specify anticipated GHG emission reduction measures sufficient to reduce or offset GHG emission that will achieve no net additional GHGs than currently emitted in connection with the Project’s activities. The mitigation measure described in detail the contents of the required emissions reduction Plan, including the way emissions are measured and estimated. The Plan must specify separately the GHG emissions for each Project phrase and must be “verifiable and feasible to implement,” and the plan is required to identify the person or identity responsible for monitoring each reduction measure. The Plan must incorporate the EIR’s air quality mitigation measures and must adopt other on-site and off-site emissions reduction measures from a detailed, five-page list as necessary to meet the significance standard. Further, the mitigation measure provided detailed instructions for implementing and monitoring the Plan, including requiring an annual report summarizing the plan’s implementation and compliance. The Plan must be updated at each phase of development, demonstrating with each update that the goal of no net additional emission has been met.
The general rule is that an EIR is required to provide the information needed to alert the public and the decision makers of the significant problems a project would create and to discuss currently feasible mitigation measures. (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 523) Prior to 2019, the CEQA Guidelines generally prohibited the deferral of mitigation measures, stating that “formation of mitigation should not be deferred until some future time.” However, measures could specify performance standards which would mitigate the significant effect of the Project, and which may be accomplished in more than one specified way. In 2021, the Guidelines were amended to permit an agency to develop the specific details of a mitigation measure after project approval when it is impractical or infeasible to include those details during the project’s environmental review. (§15126.4(a)(1)(B)). In such circumstances, deferral of mitigation measure details are permitted if the agency (1) commits itself to the mitigation, (2) adopts specific performance standards the mitigation will achieve, and (3) identifies the type(s) of potential action(s) that can feasibly achieve that performance standard and that will be considered, analyzed, and potentially incorporated in the mitigation measure. (See Save Our Capital! V. Department of General Services (2022) 85 Cal.App.5th 1101, 1134).
Alliance did not challenge the City’s implicit conclusion that it was impracticable or infeasible to formulate the details of the GHG mitigation measure at the time the EIR was prepared. The Court evaluated whether the GHG mitigation measure satisfied the three requirements of §15216.4. The Court easily dealt with the first two requirements, but carefully analyzed the third requirement to identify the type(s) of potential action(s) that can feasibly achieve the performance standard.
The Court relied heavily on the five pages of detailed measures, some that were mandatory and all of which must be implemented if necessary to prevent additional GHG emissions. Alliance argued the EIR left specific mitigation measures to future determination. The Court determined the EIR represented a good faith attempt by the City to ensure no increase in GHG emissions while coping with the uncertainties created by years of construction, development, and the anticipated evolution of GHG reduction technology.
Wind Mitigation Measure
Like GHG emissions, the EIR deferred mitigation of the wind impacts. The mitigation measure contained no specific performance standard required by § 15126.4 (a)(1)(B)(1). The Court therefore directed the city to reconsider its adoption of the wind mitigation measure.
The EIR contained a relatively brief discussion of the project’s impacts on wind current caused by the taller buildings of the project, which cause higher wind speeds, defined as exceeding 36 mph for more than one hour during daylight hours. The EIR discussed a variety of design and landscaping modifications that might reduce the wind impacts of the buildings. The EIR concluded that it cannot be stated with certainty at this stage of the Project design that all wind hazards identified in the wind tunnel test would be eliminated with this type of mitigation. Therefore, the EIR determined that the wind impact of the Project would be significant and unavoidable.
The EIR’s wind mitigation measure required a wind tunnel analysis for each proposed building exceeding one hundred feet in height prior to the issuance of a building permit. The measure required no further action if the analysis determines the building “would not create a net increase in hazardous wind hours or location compared to then existing conditions.” If, the building’s design would cause an increase in significant wind impacts, the project sponsor is required to “work with the wind consultant to identify feasible mitigation strategies, including design changes (e.g., setbacks, rounded/chamfered building corners, or stepped facades), to eliminate or reduce wind hazards to the maximum feasible extent without unduly restricting development potential.
The Court determined the performance standard failed to satisfy §15126.4 for the simple reason that it is not “specific.” By requiring a reduction in wind impacts to the maximum feasible extent without unduly restricting development potential, the mitigation measure seeks a balance between competing factors, mitigating adverse wind impacts only to the extent possible without “unduly” impacting the commercial value of the buildings. (Italics in original) Even if a mitigation measure may seek a balance between competing factors, the mitigation measure must inform the public where that balance has been struck. Mitigation measures need not include precise quantitative performance standards, but § 15126.4’s reference to “specific performance standards imply a reasonably clear and objective measure of compliance. “ (Sierra Club, supra, 6 Cal.5th at p. 523) Unlike the mitigation measure for the GHG emissions, the vague language in the wind mitigation measure failed the test.
Other Environmental Impacts Addressed by Court
- Mitigation of Railroad Impacts
Alliance contended that the EIR’s plan for safeguarding ballpark visitors from rail traffic is infeasible and ineffective. The Project is bounded on the north by railroad tracks that actively serve both passenger and freight lines. To address the impact of the railroad tracks, the City adopted a series of mitigation measures, including the installation of fencing on both sides of the tracks for the length of the Project’s frontage; the elimination of one intersection and the installation of enhanced safety features at the remaining intersections; and the construction of two overcrossings, one for bicycles and pedestrians and a second for vehicles. Although these mitigation measures will improve existing conditions, the EIR found that the project will present significant and unavoidable environmental impacts because it will expose the vehicles and pedestrians expected to cross the tracks at the five remaining at-grade intersections to the safety hazards created by the railroad tracks. The Court discussed extensively each mitigation measure and concluded that the infeasibility of a single feature of a mitigation measure does not necessarily render the entire measure infeasible.
- Mitigation of Displacement and Relocation of Businesses at Howard Terminal
The businesses to be displaced are parking for trucks and container storage, longshoreperson training facility, a vessel berth for maintenance and storage, and facilities for truck repairs. Since economic impact of displacement of businesses is not in and of itself considered a significant impact for CEQA purposes, the EIR is not required to identify potential relocation sites as mitigation. To evaluate the environmental impact of displacements, however, the EIR is required to make reasonable assumptions about the way relocation would occur.
The EIR included a discussion on the displacement on local air quality and assumed that the trucks will find sufficient alternative overnight parking within the Port of Oakland, based on a 2020 study of overnight truck parking needs at the Port of Oakland (“Seaport Forecast”) through the year 2050.
- Air Quality Impacts
Alliance contended that the EIR’s analysis of emissions from emergency electricity generators at the project site was inadequate. The EIR’s air quality analysis conservatively assumed that the Project would include seventeen (17) new emergency generators, one each at the ballpark and the mixed-use buildings. The analysis assumed that these generators would run for fifty (50) hours per year, a figure chosen because it represented the maximum time allowed by California regulations for annual testing and maintenance of such generators. Alliance contended that the estimated time of operation should be 150 hours-based on a Bay Area Air Quality Management Board (BAAQMD) policy document that presumes in determining the applicability of certain agency regulations, one hundred (100) hours of annual generator use in addition to the time for testing and maintenance. The City was required to analyze the reasonably foreseeable operation of the emergency generators. (Save the El Dorado Canal v. El Dorado Irrigation Dist. (2022) 75 Cal.App.5th 239, 264) The Court held the EIR was required to make neither a generally applicable nor a worst-case assumption; rather it was required to make reasonable estimate of likely annual use of the generators at the project site and it did so.
In the few short weeks since this opinion was issued, the Oakland Athletics announced that they will be moving to Las Vegas as they purchased real property in Las Vegas to build a stadium. However, this case is still an important CEQA case in its analysis of GHG emissions, wind impacts, railroad impacts, displacement, and relocation of businesses at Howard Terminal and air quality impacts.
 All section references shall be to the CEQA Guidelines.
 The fencing on both sides of the railroad tracks was deemed infeasible as it was in the right of way of Union Pacific’s property.
 The Seaport Forecast was a 2020 study of overnight truck parking needs at the Port of Oakland through the year 2050, which included in a broader study of future Port activities.
William W. Abbott is Of Counsel and Patrick L. Enright is an Attorney at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., 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.