1. PARTIES

1. Petitioner is, and at all times relevant hereto has been, a joint powers authority and a public agency formed under the laws of the State of California. Petitioner is governed by a Board of Directors composed of representatives of the Cities of Irvine, Lake Forest, Dana Point, Laguna Hills, Laguna Niguel, Laguna Woods, Laguna Beach, Mission Viejo, Aliso Viejo, and Rancho Santa Margarita. Petitioner therefore represents the interest of each of those cities and their hundreds of thousands of residents in this action. The purpose of Petitioner is to plan for and support a reasonable non-aviation reuse of the closed Marine Corps Air Station at El Toro in Orange County ("El Toro").
2. Each of the Cities represented by Petitioner is located in the County of Orange, California, each is located adjacent to or nearby El Toro, and each City and its residents would be directly, substantially, and negatively affected by the environmental impacts that would be caused by any use of El Toro for commercial aviation purposes.
3. Respondent County of Orange is a subdivision of the State of California with the legal ability to sue and be sued.
4. Respondent Board of Supervisors of Orange County is the legislative body that governs the County.
5. The names and capacities of Respondents Does I through XX are currently unknown to Petitioner, which therefore sues such Respondents by fictitious names pursuant to Code of Civil Procedure Section 474. Petitioner will amend this Petition to insert the true names and capacities of such Doe Respondents once they have been ascertained. Petitioner is informed and believes, and thereupon alleges, that each of the fictitiously named Respondents is responsible in some manner for the certification of the environmental impact report, the approval of the airport system master plan, and the other acts alleged herein.

1. 
   
   GENERAL ALLEGATIONS

1. El Toro served as a military airfield from approximately 1942 to 1999. In 1993, it was designated for closure as a result of a base reuse closure process conducted by the Federal Government, due in part to military force-structure reduction and urban encroachment around the base. As a result, El Toro was officially closed and military operations ended at that base in July, 1999.
2. After the federal base closure determination to close El Toro, the Department of Defense designated Petitioner in 1994 as the Local Redevelopment Authority ("LRA") with the responsibility of preparing a community reuse plan for the conversion of El Toro to civilian reuse. At that time, Petitioner was composed of the Cities of Irvine and Lake Forest, and the County of Orange.
3. On November 8, 1994, by a 51-49% margin, the voters of Orange County approved an initiative known as Measure A. Measure A amended the County’s general plan and established a planning process to determine the eventual civilian reuse of El Toro.
4. Following the passage of Measure A, the County unilaterally withdrew from Petitioner, and the federal Department of Defense thereafter changed its designation of the LRA for El Toro, designating the County in lieu of Petitioner.
5. Since the passage of Measure A, the County has planned for and insisted on the development of El Toro with a large international airport surrounded by hundreds of thousands of County residents. Notwithstanding the fact that public polls and surveys repeatedly show that at least 60 percent of the County’s residents oppose development of an airport at El Toro and that only a small portion support aviation uses, the County has continued to push forward with plans for aviation.
6. In December, 1996, the County adopted what it described as a "Community Reuse Plan" for El Toro, which designated El Toro to be developed as an enormous commercial airport operating 24 hours a day, seven days a week. When it adopted that plan, the County also initiated "the next level of planning" by directing the County Executive to prepare an airport system master plan (ASMP) involving both the existing John Wayne Airport (JWA), less than seven miles from El Toro, in Orange County and the proposed new El Toro airport.
7. The El Toro airport envisioned by the County changed over time. The community reuse plan approved in December, 1996, contemplated that JWA would serve only general aviation traffic and that all commercial passenger and cargo operations in the County would occur at El Toro.
8. However, the ASMP eventually prepared by the County and submitted to the Board of Supervisors for approval contained "a two-commercial-airport system with JWA serving in its present role of accommodating general aviation and primarily short- and medium-haul passenger service and OCX [the El Toro airport] providing general aviation and cargo and passenger service from short-haul to full international."
9. In an attempt to comply with the requirements of the California Environmental Quality Act ("CEQA") with regard to the ASMP, on October 23, 2001, Respondents certified by a 3-2 vote environmental impact report No. 573 ("EIR 573"). EIR 573 purports to accurately and completely describe the environmental impacts of this ASMP, including the proposed airport at El Toro. Respondents assert that this certification is reflected in County Resolution No. 01-360, which includes certification of the EIR, a set of Findings, and a Statement of Overriding Considerations.
10. The purposes of such an EIR and such analysis include, under CEQA: informing governmental decisionmakers and the public about the potentially significant environmental impacts of the proposed project; identifying ways that environmental damage from the project can be avoided or significantly reduced; preventing significant, avoidable damage to the environment by requiring changes in the project through the use of alternatives or mitigation measures when found to be feasible; and disclosing to the public the reasons why the project was approved notwithstanding its significant environmental impacts.
11. Such an EIR is the public document used by governmental agencies to analyze the significant environmental effects of a proposed project or series of projects; to identify alternatives; and to disclose possible ways to reduce or avoid environmental damages.
12. On October 23, 2001, in reliance on EIR 573, Respondents also approved the ASMP. Respondents assert that this approval is reflected in County Resolution No. 01-361, also adopted by a 3-2 vote.
13. On October 23, 2001, in reliance on EIR 573 and their approval and adoption of the ASMP, Respondents further directed County staff to implement that portion of the ASMP calling for construction of an El Toro airport serving 18.8 million passengers annually by the year 2010. Respondents assert that this direction is reflected in County Resolution No. 01-362, also adopted by a 3-2 vote. In their action, Respondents further directed County staff to take numerous additional steps to further the proposed El Toro airport, including negotiating an agreement with the federal government for transfer of title to El Toro consistent with the adopted ASMP, negotiating agreements with air carriers and other prospective airport tenants, and applying for such permits and approvals as may be necessary to construct and operate the airport.

1. 
   
   FIRST CAUSE OF ACTION
   (Violation of the California Environmental Quality Act)

1. Petitioner incorporates by reference as if set forth in full the allegations in Paragraphs 1-18 herein.
2. An EIR can serve as an adequate environmental informative document under CEQA only if the agency preparing and certifying the EIR complies with the statutory requirements of that statute. Respondents did not do so, and they repeatedly failed to follow the mandatory and nondiscretionary requirements of CEQA with regard to the EIR. The EIR also consistently and repeatedly misstates and underreports the significant adverse environmental impacts of the ASMP described therein. In addition, many of the conclusions of the EIR, as well as many of the findings adopted by Respondents, are not supported by substantial evidence. Respondents violated CEQA in at least the following ways, and EIR 573 was therefore inadequate as a basis for Respondents to approve and adopt the ASMP, or to direct its implementation. This listing of CEQA violations is non-exclusive, and other violations will be demonstrated from the administrative record of Respondents’ actions, once that record is prepared and lodged with the Court:

1. 
   
   SECOND CAUSE OF ACTION
   (Illegal Predetermination Under CEQA)

1. Petitioner incorporates by reference as if set forth in full the allegations in Paragraphs 1-20 herein.
2. California law prohibits a government agency from approving any major project such as the proposed El Toro airport before it considers the possible environmental impacts. More particularly, under CEQA an agency may not approve a project that could have significant environmental impacts before the EIR process has been completed in its entirety. This requirement is designed to ensure that decision makers such as Respondents treat an environmental impact report as an aid in deciding whether to approve a proposed project, rather than as a post hoc rationalization for a decision that has already been made.
3. Respondents violated this requirement when they decided to approve an airport at El Toro months before the environmental review process, which purportedly considered both aviation and non-aviation uses for El Toro, was completed. Respondents officially announced their prejudgment of the outcome of the environmental review process in March and May 2001, when they authorized the expenditure of nearly $8 million in public funds to fund a pro-airport political campaign. However, the County did not consider and certify EIR 573 until October 23, 2001. Plainly, the County failed to utilize the environmental review process in the manner required by CEQA, that is, as an aid in deciding whether to approve an airport at El Toro. Instead, the County prepared and certified an environmental impact report for an unlawful purpose, that is, to provide a post hoc rationalization for the decision it had already made.
4. In March, 2001, Respondents entered into a contract with the Orange County Regional Airport Authority to develop a series of publications and programs to publicize the findings of EIR 573 and the El Toro airport project that had, by that time, been selected by the County.
5. In May, 2001, Respondents entered into a similar contract with an Orange County public relations firm known as Amies Communications. In that contract, the County stated:

[T]he County anticipates that it will soon certify Environmental Impact Report 573 (EIR) and approve an Airport System Master Plan (ASMP) for John Wayne Airport and for a proposed commercial airport at MCAS El Toro. . . . [T]he County desires professional services from a consultant to assist the County in communicating to the public and other governmental agencies the findings of such EIR, ASMP, and the potential impacts of the selected project on the citizens of the County.

6. Immediately following Respondents’ signing of these contracts, and well before October 23, 2000, Respondents began a series of publications that were widely distributed throughout the County supposedly "communicating to the public and other governmental agencies the findings" of EIR 573, the ASMP, and the impacts of Respondents’ selected project.
7. As the language and actions above make clear, long before Respondents took action on October 23, 2001 to certify EIR 573 and approve the ASMP, Respondents had already decided to build an airport at El Toro, even though at that time Respondents were far from completing the required environmental review purportedly encompassed in EIR 573. As of May 2001, Respondents had just barely released revisions to the draft EIR 573, the public comment period required under CEQA for those revisions had not even closed; Respondents had not released any responses to the numerous public comments already submitted regarding EIR 573; Respondents had not released any final EIR incorporating appropriate changes in response to those comments; and Respondents would not consider any final EIR for several months. As of May 2001, there were no "findings of such EIR," nor could there legally have been any such "findings" until Respondents completed all the steps required by CEQA and considered and certified a final EIR 573. Moreover, until these steps were completed, a "selected project" could not have legally existed.
8. Respondents violated CEQA in March and May 2001, when it decided to build an airport at El Toro and authorized the expenditure of millions of dollars to promote the El Toro airport, months before it completed its evaluation of the ASMP’s environmental impacts. Respondents’ violation of CEQA carries grave consequences. By waiting until after the EIR process is complete before deciding whether to approve a project, a government agency fulfills the very purpose of an EIR, which is to provide decision makers with environmental impact information to aid them in deciding whether to move forward with a proposed project. By contrast, by taking actions such as those by Respondents to select and further a project before full environmental review has been completed, Respondents have not only undermined the purpose of EIR 573, but have also undertaken and approved a review that is worse than no review at all. To the extent Respondents have used the EIR 573 process to justify their prior decision, they have created a false impression in the public mind that a bona fide environmental review was in fact conducted and that the approved project’s benefits outweigh its potential harms, when in truth Respondents conducted no such bona fide review nor made any such legitimate findings. This result both undermines the public’s ability to remain aware of environmental hazards, and erodes confidence in public agencies.

1. 
   
   THIRD CAUSE OF ACTION
   (Violation of Public Utilities Code)

1. Petitioner incorporates by reference as if set forth in full the allegations in Paragraphs 1-28 herein.
2. Public Utilities Code Section 21676 specifies that every County is required to submit any proposed amendment of a general plan, specific plan or building regulation within the planning boundary of a local Airport Land Use Commission to that agency before the County itself takes any action on the proposal.
3. EIR 573 and the ASMP each concede that the proposed El Toro airport and the existing John Wayne Airport are within the Orange County Airport Land Use Commission’s planning boundary.
4. Under Public Utilities Code Section 21676, Respondents’ actions alleged above with regard to both the proposed airport at El Toro and the existing John Wayne airport involve specific development plans, general plan amendments and building regulations. Under Section 21676, these actions therefore could not legally be taken by Respondents without prior review and action by the Orange County Airport Land Use Commission.
5. Orange County owns John Wayne Airport, and Respondents’ actions alleged above include modifications to the existing airport master plan for that airport. Under Section Public Utilities Code Section 21676, Respondents’ modifications to the existing airport plan for John Wayne thus also could not legally be taken without prior review and action by the Orange County Airport Land Use Commission.

WHEREFORE, Petitioner prays for judgment against Respondents as set forth below.

6. Respondents’ certification of EIR 573, their approval of the ASMP, and their direction to County staff to implement the ASMP, was a prejudicial abuse of discretion, because Respondents failed to proceed in the manner required by law. In particular, Respondents failed to consider and certify an adequate EIR under CEQA prior to their adoption of their Statement of Overriding Considerations and failed to adopt an adequate Statement of Overriding Considerations supported by substantial evidence prior to their approval of the ASMP, and prior to their direction to County staff to implement the ASMP.
7. Petitioner is beneficially interested in the performance by Respondents of their statutory obligations under CEQA and under the Public Utilities Code regarding the ASMP and any proposed civilian airport at El Toro, because Petitioner and the Cities and Orange County residents it represents would be directly, substantially and negatively affected by the operations of such an airport.
8. Petitioner has exhausted all administrative remedies available to it, in that it objected to Respondents’ certification of EIR 573 and their approval of the ASMP, and in that it or other interested parties raised, during Respondents’ administrative proceedings prior to their certification of EIR 573, each of the objections enumerated herein and that will be raised based on the administrative record.
9. Petitioner has performed all conditions imposed by CEQA precedent to filing this action. In particular, it has complied with the requirement of Public Resources Code Section 21167.5 by serving notice on Respondents that this action would be filed. This notice was served on Respondents on November 19, 2001. The notice and the proof of service thereon is attached hereto as Exhibit A, and is incorporated herein as if set forth in full.
10. Petitioner will also serve a copy of this Petition on the California Attorney General as required by law.
11. Petitioner has no plain, speedy and adequate remedy at law, and it will suffer irreparable injury unless this Court issues the relief requested herein.

WD 111901/F-1170110/W9/957423/v2