September 13, 2001

BY FACSIMILE AND FEDERAL EXPRESS

Honorable Cynthia Coad, Chair
Orange County Board of Supervisors
and Board Members
10 Civic Center Plaza
Santa Ana, CA 92701

Re: Proposed Certification of EIR 573

Dear Supervisor Coad and Board Members:

You are currently scheduled to consider certification of EIR 573 at your meeting on September 17, 2001.

This proposed certification will have significant legal consequences that necessarily follow from the provisions of the California Environmental Quality Act (CEQA). First, your certification will declare that each of you has personally reviewed and considered the EIR before approving any airport system master plan. See CEQA Guidelines §15090(a)(2).

Second, your certification will also declare that each of you has exercised your independent judgment and analysis of the issues in the EIR. See CEQA Guidelines §15090(a)(3).

Third, your vote to certify the EIR will be a declaration by each of you individually that the EIR accurately informs both the public and other governmental agencies of the environmental impacts of the proposed airport system master plan. See CEQA Guidelines §15003(c)-(d).

As you know, the County has also been conducting its "El Toro—Just the Facts" program. This "informational" program was instigated by the Board, supposedly because it would provide the "facts" concerning the proposed project as determined in the EIR process.

However, rather than providing unbiased facts, the program has repeatedly provided the public with information that is explicitly contradicted by EIR 573. Just as three examples:

· Material that has been publicly distributed as part of the program claims that an airport at El Toro will improve air quality.

The EIR contradicts these program assertions. For example, the EIR reports that air pollution from operational sources will be significant for all criteria pollutants in every phasing year of development. Indeed, it reports that the airport will generate more than 42,000 pounds daily of new air pollution from aircraft operations alone.

It also reports that there will be significant toxic air pollution, that the project will result in significant lifetime cancer risks, that it will result in significant adverse chronic health hazard impacts, that the project will not be in conformity with the regional air quality management plan, and that all of these impacts are significant and unavoidable. EIR 573 thus directly contradicts the air quality representations made in the "Just the Facts" program.

· The program has repeatedly published materials suggesting that there will be no significant noise impacts from El Toro operations. For example, the program claims that "overall noise produced by a commercial airport at El Toro will be significantly less compared to prior military operations."

But, yet again, the EIR contradicts these assertions. It reports that "[b]ecause the military flew so infrequently during nighttime hours, this EIR has concluded that the increase in nighttime noise events in the vicinity of El Toro would be a significant impact" of the project. It likewise reports that other "significant and unavoidable" noise impacts will occur as a result of aircraft operations and that noise-caused sleep deprivation will be "significant and unavoidable."

· Material distributed to the public represents that the proposed airport "include[es] two 10,000 foot and two 8,000-foot runways" that "will have an immediate

. . . impact on our . . . national capacity crisis" and that "it’s ready" for immediate operations.

The EIR reports to the contrary: the base will need extensive regrading, and the existing runways will be destroyed and rebuilt.

As noted above, your certification of EIR 573 will be a personal and individual determination of the environmental consequences of the airport system master plan. Any future publications of the "Just the Facts" program that provide information that is either inconsistent with the EIR, or that does not fairly disclose the negative consequences of the project as determined by the EIR, will thus be inconsistent with your personal and individual determinations under CEQA.

If the program continues in that way, it will be apparent that you have willfully ignored the certification of EIR 573 and are continuing the "Just the Facts" program for purely political purposes—not to fairly advise the public of your EIR determinations, but instead to defeat the proposed Orange County Central Park and Nature Preserve Initiative. And, if the program continues in that way, it will because you have personally allowed it to continue in that way, notwithstanding your personal and individual certification of the EIR.

Accordingly, if the program continues to publish information inconsistent with a certification of EIR 573 or fails to fairly disclose the full range of environmental impacts of the proposed airport system master plan, ETRPA intends to amend its complaint previously filed in El Toro Reuse Planning Authority et al. v. County of Orange, Orange County Superior Court No. 01CC06483.

Please be advised that the amendment will include claims for personal liability based on knowingly illegal governmental spending against any member of the Board who certifies EIR 573 but nonetheless permits these types of misrepresentations to continue. That type of action has been repeatedly condemned by the California courts, and is a basis for subjecting governmental officials to personal liability.

Yours very truly,

RICHARD C. JACOBS

cc: County Counsel’s Office
     ETRPA