Litigation EIR 563 details

5/17/99 - LEGAL CHALLENGES TO EIR ON APPEAL

9/18/98 - LEGAL FEES AWARDED TO WINNERS

1/7/98 - COUNTY ORDERED TO DO SUPPLEMENTAL EIR

10/28/97 - SUPERIOR COURT FINDS EIR FLAWED

LEGAL CHALLENGES TO EIR 563 ON APPEAL
A three-judge panel in San Diego heard arguments May 17, 1999 in the EIR litigation.  San Diego Judge Judith McConnell previously had ruled that the county failed to adequately address noise, traffic and air quality, but she did not stop county planning as ETRPA and Taxpayers for Responsible Planning had requested.

The anti-airport groups are appealing her decision to not stop county planning.  They contend that the entire environmental impact report should have been rejected.  If the appeals panel agrees with the arguement it would be a major setback for the airport project.  Much of the county's work in the initial EIR is being used as the basis for the final report due out this summer.

County planners contend that they only needed to fix the first EIR and they are in the process of collecting public comments on a supplemental report to address selected deficiencies.

The three judges have 90 days to rule on the appeals.

LEGAL FEES AWARDED TO WINNERS
September 18, 1998: Superior Court Judith McConnell today awarded the El Toro Reuse Planning Authority (ETRPA) and Taxpayers for Responsible Planning (TRP) $410,756.74 for all attorneys fees related to their suit against the Environmental Impact Report on the El Toro airport plan prepared by the County of Orange.

ETRPA’s fees were $247,440.49 and TRP’s were $163,316.25. ETRPA and TRP filed suit against the county’s EIR last year. In October of 1997, Judge McConnell ruled that the county’s EIR was inadequate and ruled against the county in nine significant areas.

In her ruling, Judge McConnell said: “The action resulted in the enforcement of an important public right affecting the public interest. The action resulted in an order compelling Respondent Orange County Board of Supervisors to comply with the mandates of (California Environmental Quality Act) CEQA.

The action conferred a benefit on the public at large and, more directly, on a large number of Orange county residents. The action resulted in an order compelling the county to perform a Supplemental EIR to address the inadequacies of the initial EIR. This conferred a direct benefit on all Orange County residents. Moreover, the securing of environmental protection confers a benefit on California residents as a whole.”

The county has resisted paying the winners' legal fees as required under the law. County officials must now decide whether to appeal Judge McConnell's ruling or pay without further delay and litigation.

The lawsuit is not finished. ETRPA and TRP are still seeking, on appeal, to force a stop to the airport planning until the EIR defects found by Judge McConnell are repaired.

RULING BY THE SUPERIOR COURT, ON THE TRP AND ETRPA LAWSUITS, MANDATES CHANGES TO THE COUNTY'S EIR.

The following statement was received from Taxpayers for Responsible Planning, one of the successful petitioners in the lawsuit that demonstrated major flaws in the county's $3 million environmental impact report for El Toro:

January 7, 1998 Taxpayers for Responsible Planning (TRP) today claimed a major victory in their fight to stop development of a mammoth commercial airport at El Toro with the ruling from Superior Court Judge Judith McConnell ordering massive changes in the County approved Environmental Impact Report (EIR).

"We are delighted that Judge McConnell has ordered Orange County to finally come clean and tell the public the real impacts of their airport plans. TRP is dedicated to getting the facts of this project out to the public because we know that when objective facts are considered, the airport plan is a loser. Judge McConnell has done the public a real service by recognizing the slip-slod nature of the EIR and the attempts by the County to hide the devastating impacts of their plan," said Bill Kogerman, Executive Director of TRP.

Judge McConnell has signed a peremptory writ of mandate requiring Orange County to prepare supplemental environmental analysis on regional air quality impacts, traffic impacts, noise mitigation, impacts on threatened and endangered species and mitigation for loss of prime agricultural land. In addressing regional air quality and traffic impacts, the County must use existing conditions as its baseline, rather that future environmental degradation that has not yet occurred as they did in the past.

"Judge McConnell has ordered the County to redo a substantial portion of their EIR covering all of the key issues. If the county bureaucrats consider this a 'fix-it ticket, they have not learned a single thing in this process. Judge McConnell clearly gutted the County's comparative baseline and ordered them to fully reanalyze the impacts of this enormous airport. This is not a broken taillight, it is a judicial demand for a whole new drive train," added Kogerman

TRP is a party in the lawsuit against Orange County with the El Toro Reuse Planning Authority (ETRPA) a joint-powers authority of seven south Orange County cities and the city of San Juan Capistrano. TRP and ETRPA had asked for Judge McConnell to order a new EIR.

"While I was hoping that the Judge would appropriately apply the death penalty to this monster, I have to be satisfied that at least she sentenced this project to a major reanalysis under additional public scrutiny," said Kogerman.

The Orange County Board of Supervisors had previously voted 3-2 to appeal Judge McConnell's preliminary decision. TRP is currently studying all options with regards to appeals and cross-appeals.

A legal analysis of the Court decision has been provided to the website on January 7, 1998 and is presented here in somewhat edited form:

The judge’s peremptory writ of mandate requires Orange County to prepare and circulated for 45 days of public review, supplemental environmental analysis on several issues including: regional air quality impacts; traffic impacts and noise mitigation.

In addressing regional air quality and traffic impacts, the County must use existing conditions as its baseline for assessing the significance of impacts. Previously, the County had used a future baseline that assumed environmental degradation that has not yet occurred, and which may never occur. For example, the county had assumed that, simply because some people predict a certain demand for air travel in the year 2020, all capacity needed to serve that demand will be built someplace and should be treated as an environmental given. Addition of an El Toro airport, on such a basis, will not add to regional air pollution, just move it around. The judge rejected this argument.

Similarly, in assessing traffic impacts, the County has wrongly assumed the construction of various road improvements that are currently unfunded and unapproved, and which may never be built. The effect of the County’s errors was to significantly understate the severity of the air quality and traffic impacts of a new airport.

In dealing with mitigation measures for noise, the County will have to give greater consideration to measures proposed in public comments on the first EIR.

The new analysis must also correct the erroneous approach taken with regard to the “No Project Alternative” against which the airport was compared. The original EIR assumed, implausibly, that despite the Federal Government’s known plan to halt military operations in 1999, the impacts of such operations would somehow continue through the year 2020 so that a new airport’s impacts could be compared, in the future, against those of a military air base, even though it had ceased to exist..

The Court’s decision will be to virtually force the County to reveal that a new airport at El Toro will cause significant effects on regional air quality, traffic and biological resources. New and stronger mitigation measures hopefully will be adopted to deal with noise. 

COURT ISSUES REJECTION OF COUNTY’S EL TORO AIRPORT ENVIRONMENTAL IMPACT REPORT

October 28, 1997: Judge Judith McConnell, Superior Court, issued her final ruling today, in the lawsuits brought by Taxpayers for Responsible Planning and the El Toro Reuse Planning Authority, against the County’s El Toro Environmental Impact Report. In what is a major victory for airport opponents, the judge found that the County “abused its discretion” by failing to comply with the California Environmental Quality Act (CEQA) when it approved the airport project last year.

The judge asked the anti-airport attorneys to prepare "a proposed writ and proposed judgement for the court's approval,"asking TRP and ETRPA to spell out the corrective action that the county must take. Their reply was to ask for an injunction against further spending on airport planning until the environmental report flaws are corrected. Opponents also asked the judge to invalidate both the county's reuse plan and the EIR. A hearing on these requests was held on November 25.

Judge McConnell declined to issue an injunction because construction is not immenent. Her decision is being appealed.

The County spent approximately $3 million preparing the controversial environmental impact report (EIR). The EIR attempted to show that an international airport at El Toro would not adversely impact noise, air quality or traffic in the surrounding communities. In a rush to rubber-stamp the airport idea, the county staff and Board of Supervisors largely ignored thousands of questions from citizens and organizations who challenged the County’s conclusions. The judge found that the county had understated the impacts.

Supervisor Tom Wilson, whose Fifth District includes the Marine base, and who voted against the environmental report when it was presented to the Supervisors by county staff, stated , "The fact that a flawed EIR was approved back in December 1996 has now been officially confirmed.  The entire planning process is reflected by the judge's decision today -- it's obviously flawed and it's wrong for Orange County. Now we must look at reuses that will benefit all of Orange County, both in an economic sense and as it relates to our quality of life."

Bill Kogerman, head of the Taxpayers group that brought the suit, thanked the court and said, “It is obvious that special interests attempted to ramrod a flawed reuse plan, using rookie talent, and the Judge caught them. This decision should send a clear message that arrogance, bully tactics, and an intoxicated use of taxpayer money can not prevail over California environmental law."

Kogerman concluded that, "This lesson in civic involvement has dramatically demonstrated to the taxpayers of Orange County that their deep mistrust of County government is completely validated.  This victory is directly attributable to the thousands of TRP supporters who made it possible."  TRP had fought long and hard for this victory which was bankrolled by citizen donations and community fund raisers.

Bert Hack, a TRP Director, said, “It’s about time that the County stop wasting taxpayers money trying to squeeze an unnecessary commercial airport into this unsuitable location and start planning some good non-aviation uses for the base.”

The judge’s ruling brought cheer to the El Toro Reuse Planning Authority, (ETRPA) and eight south-county cities who filed a companion suit against the County. The cities were Dana Point, Irvine, Laguna Beach, Laguna Hills, Laguna Niguel, Lake Forest, Mission Viejo and San Juan Capistrano. Tustin and San Clemente also joined as interveners against the EIR.

The County had tried in vain to get ETRPA to drop its lawsuit. Judge McConnell’s ruling vindicated the cities’ unwillingness to give in to this demand, which had been pressed by county Chief Executive Officer Jan Mittermeier and backed by Supervisors Silva and Smith.   ETRPA Chairman, Richard Dixon said, "We look forward to the county revisiting its mission and approaching this significant piece of property, in the heart of Orange County, with an open mind."

ETRPA noted that the court made no substantive changes in its earlier tentative ruling, suggesting that if the county staff had prepared a fair Environmental Impact Report, the people of Orange County would be appalled at the negative impacts this plan would mean for the entire county. According to Chairman Richard Dixon, “The ruling clearly demonstrates that the county staff have misled the public, sidestepped important issues and ignored the need for broad- based public input and public information regarding the reuse of MCAS/El Toro. This also raises concerns about the quality of information the county staff has provided the board of supervisors. We question whether the board can make an accurate assessment about the viability of this project, if the county staff has made such serious errors in analysis and preparation of the EIR.”

The City of Newport Beach had joined the losing side, as an intervener in the case with the County. Newport residents want an airport built at El Toro in order to transfer jet traffic away from John Wayne. Artificial capacity limits for that airport expire in the year 2005.  The City of Newport was joined in the case by the Newport-based Airport Working Group.  Several north-county cities joined with the county in hopes of reaping some financial gain from the El Toro project. These included Anaheim, Garden Grove, Orange, Stanton, and Villa Park.

The County said they will expend the money to appeal the decision, rather than go to work and repair the environmental impact report. Bill Kogerman observed that, "Any appeal at this point is the classic throwing of good money after bad."

County CEO Jan Mittermeier stated that "The EIR is thorough and accurate and complete."

County officials stated that they will continue spending their $20 million 1997-98 planning budget, and add to that in the coming year, regardless of the Judge’s decision.  However, they do so at great financial risk to the taxpayers.

The Taxpayers for Responsible Planning and ETRPA groups filed papers on March 5, 1998, asking the Appeals Court to stop county spending judicially, until the EIR is repaired and recirculated.  The groups have also asked the Court to require the County to pay ETRPA and TRP's legal costs which are due to them as the "prevailing party"..

The Superior Court cited the following major EIR defects:

The judges final decision followed closely the preliminary ruling issued on October 10th.

LITIGATION