1. INTRODUCTION

This litigation challenges the validity of an environmental impact report ("EIR") certified by the Southern California Association of Governments ("SCAG") under the California Environmental Quality Act ("CEQA"). SCAG prepared and certified this EIR in connection with its consideration of its 2001 Regional Transportation Plan Update ("Update") for Southern California. The Update, adopted by SCAG after consideration and certification of the EIR, assesses overall growth and economic trends for Southern California, and specifies future transportation infrastructure improvements for the region over the next 25 years. The Update includes an enormous new commercial airport at the former El Toro Marine Corps Air Station ("El Toro") in Orange County that would serve almost 30 million passengers annually.

The EIR is a mass of methodological flaws, and those flaws require invalidation of both the EIR and the Update. SCAG violated CEQA by using a "No Project" condition as the baseline for the EIR’s environmental analyses, rather than a baseline of current conditions. See Part I, infra. The use of this improper baseline resulted in an EIR that failed to accurately assess the environmental impacts of the projects included in the Update.

This improper baseline was even artificially inflated, because it was defined as assuming the operations of the new commercial airport at El Toro, as well as a massive expansion of other airports throughout Southern California and the construction and operation of a new high speed rail system to reduce vehicular traffic. This artificially bloated baseline necessarily resulted in an EIR that substantially underreported actual environmental impacts. See Part II, infra.

Even beyond these significant methodological errors, the EIR violated CEQA for numerous other reasons. SCAG defined the "No Project" baseline and other important terms inconsistently throughout the EIR. See Part III, infra. It repeatedly used legally erroneous standards of significance in determining environmental impacts. Indeed, when one comment on the EIR noted that SCAG had admitted using an incorrect standard, SCAG simply deleted the admission from the text without changing its methodology. See Part IV, infra. SCAG even used an outdated program for calculating air pollution impacts, although it knew the program underreported actual air pollution by as much as 130%. SCAG thus relied on the EIR as the basis for approving the Update, while also conceding that the EIR’s knowingly erroneous calculations of air pollution were "generous to the polluters." See Part V, infra. In addition, SCAG has now admitted that its "fair share" calculations of demand for air travel in Orange County on which it based its decision to include an airport at El Toro in the Update were significantly and erroneously overstated. See Part VI, infra.

These extensive methodological flaws in the EIR necessarily mean that SCAG violated CEQA’s requirements for mitigating significant adverse environmental impacts and that the Statement of Overriding Considerations it adopted as a justification for the Update was invalid. See Parts VII and VIII, infra. Under all these circumstances, the Court must grant the Petition for Writ of Mandate, and invalidate both the EIR and the Update.

2. STATEMENT OF FACTS

SCAG is the Metropolitan Planning Organization ("MPO") designated by law for conducting long-range transportation planning for the six-county Southern California region, comprising Los Angeles, Orange, Riverside, San Bernardino, Imperial and Ventura Counties. This agency is governed by a Board with officers and members drawn from these counties and cities in the counties. Petition for Writ of Mandate ("Pet.") ¶3; Answer of Southern California Association of Governments ("Answer") ¶3. "The SCAG region encompasses 38,000 square miles, 16 million people (equal to half the entire population of California), 184 cities, and is the largest and most populous metropolitan planning region in the nation." 1 AR 76.

As the MPO, SCAG is responsible for maintaining a transportation planning process which will result, inter alia, in a Regional Transportation Plan ("RTP") for these counties. Gov’t Code §65080. Each such RTP is required to assess the overall growth and economic trends for Southern California, and to provide strategic direction for transportation improvements and public spending during the time period it addresses. The RTP is an important document under both federal and state law in order to assure governmental funding and, in many instances, public transportation improvements may not be built or funded unless they are included in the RTP. See, generally, 4 AR 2092-93; 11 AR 4322, 4341.

SCAG adopted its last RTP in 1998. State law requires that SCAG "adopt and submit an updated RTP to the California Transportation Commission and the Department of Transportation (Caltrans) every three years." 1 AR 24. In addition,

[i]n federally designated air quality non-attainment and maintenance areas, the U.S. Department of Transportation, Federal Highway Administration (FHWA) and Federal Transit Administration (FTA) require that the region submit a [RTP] every three years in order to ensure that proposed transportation improvements do not adversely affect regional air quality attainment goals. The RTP must cover a period of at least 20 years into the future. (1 AR 76)

"The SCAG region encompasses several federally designated non-attainment and maintenance areas for air quality standards." 1 AR 84. Accordingly, SCAG began to prepare a 2001 RTP Update ("Update") to satisfy those applicable state and federal requirements. The Update was intended by SCAG to be "a long-range regional transportation plan that provides a blueprint for future transportation improvements based on specific transportation goals, objectives, policies and strategies." 1 AR 24.

As part of that process, SCAG was required to comply with CEQA, and it determined to prepare a "Program Environmental Impact Report" ("EIR") in order to "fulfill[] the requirements of [CEQA] and . . . to inform decision-makers, responsible agencies and the general public of the range of potential environmental impacts associated with approving the . . . Update." 1 AR 76. Accordingly, it published a Notice of Preparation ("NOP") on September 18, 2000 advising other agencies and the public that this document would be prepared. 1 AR 80; 4 AR 2138-87. On January 29, 2001, it published the draft of the EIR, advising that the draft "has been prepared to meet the requirements of [CEQA] and Guidelines . . . ." 1 AR 2. As required by CEQA, SCAG solicited comments on the draft and specified that any such comments had to be submitted by March 15, 2001. Id.

Numerous federal and state agencies, along with numerous cities entities and individuals submitted comments. 3 AR 1311-13. "A total of 84 comment letters were received" on the draft EIR. 3 AR 1311. As did many other commenters, Petitioner El Toro Reuse Planning Authority ("ETRPA") submitted extensive comments criticizing both the methodology and conclusions of the EIR. 3 AR 1563-94. ETPRA’s comments noted:

The El Toro Reuse Planning Authority (ETRPA) is a coalition of nine Orange County cities opposed to the development of an airport at the former MCAS El Toro. In addition to eleven voting members, ETRPA’s affiliate and associate membership encompasses seventeen additional organizations, agencies and individuals including 2 more cities, 4 school districts, 1 college district, 6 civic, cultural and educational organizations and foundations, 2 chambers of commerce, 2 regional airports, and 2 elected state representatives. ETRPA believe[s] that it represents the interests and will of more than sixty percent of Orange County citizens regarding the reuse of the former MCAS El Toro. (3 AR 1563)

SCAG responded to the comments in writing. 3 AR 1687-1867.

On April 12, 2001, SCAG then considered the draft EIR and the Update itself. 4 AR 2038-45. As SCAG recognized, "Section 15090 of the [CEQA] Guidelines requires that a decision-making body read and consider the information contained in an [EIR] before making a decision on a project." 4 AR 2037. SCAG accordingly adopted Resolution #01-418-1 in which it concluded that "SCAG is required to comply with [CEQA] in preparing the Regional Transportation Plan." 4 AR 2038. It then found that the EIR was prepared in compliance with CEQA, that "SCAG’s decisionmaking body, the Regional Council" had reviewed and considered the EIR, and that the EIR was accordingly certified for the Update. 4 AR 2044.

As more fully discussed below, CEQA requires every agency carrying out a project that has substantial adverse environmental impacts to mitigate those impacts where feasible. However, if the EIR discloses substantial adverse impacts that can not be feasibly mitigated, the agency may nonetheless approve the project, so long as it adopts a Statement of Overriding Considerations in which it balances the adverse impacts with the economic and other social benefits of the project and concludes that the benefits outweigh those impacts. In this case, SCAG adopted such a Statement of Overriding Considerations (4 AR 2046-82) in which it reported that "SCAG has determined that the overall benefits of the proposed 2001 RTP Update and the economic, social and other considerations outweigh and override the unavoidable adverse environmental impacts discussed in the findings." 4 AR 2081. In light of the certification of the EIR and Statement of Overriding Considerations, SCAG then also adopted Resolution #01-418-2 approving the Update. 4 AR 2092-99; see also 11 AR 4312-4812 (Update).

Both the EIR and the Update address airports in Southern California generally, and possible commercial aviation at El Toro specifically. Generally, the EIR identified a series of "aviation scenarios" involving different levels of service at existing and potential Southern California airports. See 1 AR 109-13 (comparing each airport under each scenario). The EIR reports on SCAG’s process of developing the scenarios and the scenarios themselves:

Air passenger travel for the year 2025 is projected to range from a low of 147 million annual passengers (MAP) if airport expansion were to be constrained to a high of 172 MAP if airport expansion were (mostly) unconstrained. This would be an increase of up to 80 million passengers increase over the recorded air passengers in 1999. At the same time, air cargo demand is expected to reach 9.5 million tons. Not only will these increases require greater capacity in the airport system, but they will also impact roads near the airports.

* * * *

Since airport expansion is under the control of the local airport authority (and subject to market trends and demands as well as other controls), the likely expansion of the various airports in 2025 is not clear. . . . Given all this, any one of the aviation scenarios could occur under this project or either project alternative (No Project or 1998 RTP). This EIR identifies impacts associated with each scenario. . . . Based on this analysis and other considerations, it is anticipated that the SCAG Regional Council will select one scenario (either one included in the EIR or a combination thereof) to be the Adopted Aviation Scenario of the 2001 RTP Update. The Adopted Scenario will be the one best meets [sic] and promotes RTP Goals.

* * * *

As the 1998 Plan did not fully resolve some regional aviation issues, an Aviation Task Force consisting of elected officials and aviation industry professionals was formed to develop and evaluate additional aviation scenarios and provide further policy direction to the Regional Council of SCAG. Over a two-year period, the Aviation Task Force defined and evaluated nine aviation system scenarios. In March 2000, four scenarios were selected for further analysis, including the scenario approved in the Adopted 1998 RTP (the RTP Medium Aviation Scenario).

* * * *

The aviation scenarios include the use of existing commercial airports at Los Angeles (LAX), Ontario (ONT), John Wayne (SNA), Burbank (BUR), Long Beach (LGB), and Palm Springs (PSP). In addition, airports at Palmdale (PDA) and Point Mugu (MUG) along with commercial use of the closed military air bases at El Toro Marine Corps Air Station (ELT), March Global Port (March), Southern California Logistics (SCI) and San Bernardino International Airport (SDI) are part of the proposed regional aviation scenarios. (1 AR 109-10)

SCAG’s Aviation Task Force "recommended three aviation system scenarios and the RTP Medium Scenario for the TCC [SCAG’s Transportation and Communications Committee] to consider for inclusion in the 2001 RTP Update." 4 AR 2091. Each of the four scenarios were considered in the EIR and "were presented to the TCC . . . on February 21, 2001." 4 AR 2091; see also 11 AR 4418 (describing process). That Committee then directed SCAG staff "to develop a scenario that minimizes impact utilizing components that were present in the original four alternatives and that were evaluated in the Draft [EIR]. This scenario, which SCAG called the decentralized scenario, was presented to the TCC on March 1, 2001. However, the TCC recommended Scenario 8 for inclusion in the 2001 RTP Update." 4 AR 2091; see also 11 AR 4420. That Scenario was ultimately approved by SCAG and included in the Update. 4 AR 2091; 11 AR 4325, 4336. This aviation scenario specifically for El Toro to serve almost 30 million passengers annually with more than 320,000 annual flights, and to also transport almost 1.7 million tons of air cargo. 1 AR 113; 11 AR 4419-21.

SCAG’s stated rationale for including an enormous new commercial airport at El Toro is inconsistent both with its representations in the EIR and with the policies it cited as guiding its decisions. For example, SCAG readily conceded that "there is opposition to El Toro in Orange County" and that the County "currently is, and is forecast to remain without development of an airport at El Toro . . . ." 3 AR 1775. Even in light of that opposition and forecast, SCAG nonetheless included an airport at El Toro within the Update.

Moreover, two of the policies SCAG used to develop its aviation scenarios specified that SCAG should "[d]istribute maximum opportunity to Southern California airports where population and job growth over the next two decades are expected to be strong and where local communities desire the air traffic for economic development reasons," and that SCAG should "[m]aximize air passenger and air cargo utilization of outlying airports in less populated areas." 11 AR 4421 (emphasis deleted). An additional policy cited by SCAG specifies that "each county should have both the obligation and the opportunity to meet its own air traffic needs where feasible." Id.

At the same time, however, SCAG reported that the greatest population growth anticipated in Southern California by far would be in Riverside and San Bernardino Counties, and that Orange County would have the smallest growth. 11 AR 4528 (Riverside 99.7%, San Bernardino 72.7%, and Orange 26.5%). Indeed, SCAG characterized Riverside and San Bernardino as "the rapidly growing Inland Empire . . . ." 3 AR 1780. The SCAG policies thus pointed strongly towards maximized air passenger services in these areas, rather than at El Toro. Nonetheless, when SCAG was asked to evaluate an alternative Aviation Scenario which would have provided no air service at El Toro and would have concentrated airport development and service in those areas where the greatest population growth is predicted, it refused to do so. 3 AR 1448, 1740-41. Instead, it selected a scenario that provided for 30 million passengers annually at El Toro, but only 2 million at the proposed March Global Port Airport in Riverside County and 2 million at the proposed San Bernardino International Airport. 11 AR 4421.

As more fully discussed below, SCAG also repeatedly pointed out that Orange County generated a significant amount of the demand for air passenger services in Southern California, but failed to provide for those services at John Wayne Airport and as a result other airports—particularly LAX—were required to serve that demand. Since certification of the EIR and adoption of the Update, however, SCAG has admitted that its reported calculations of passenger demand for Orange County were incorrect. See Part VI, infra.

Following its certification of the EIR and its adoption of the Update, on April 16, 2001 SCAG published and filed the Notice of Determination required by CEQA. This litigation was then timely filed on May 11, 2001.

3. ARGUMENT

1. 
   
   SCAG VIOLATED CEQA BY USING THE "NO PROJECT" ALTERNATIVE AS THE BASELINE FOR THE EIR’S ENVIRONMENTAL ANALYSES, AND THIS ERROR WAS A PREJUDICIAL ABUSE OF DISCRETION REQUIRING INVALIDATION OF THE EIR and the 2001 RTP UPDATE.
1. SCAG Violated CEQA By Using The "No Project" Alternative As The Baseline For The EIR’s Environmental Analyses.

Perhaps the most important purpose of an EIR is to "inform the decision-making agency of the full range of adverse environmental effects . . . prior to its decision to approve or disapprove such project." Mount Sutro Def. Comm. v. Regents of the Univ. of Cal., 77 Cal. App. 3d 20, 37 (1978). As our Supreme Court has explained, "[a] fundamental purpose of an EIR is to provide decision makers with information they can use in deciding whether to approve a proposed project . . . ." Laurel Heights Improvement Ass’n v. Regents of the Univ. of Cal., 47 Cal. 3d 376, 394 (1988).

"The EIR is the heart of the environmental control process. . . . CEQA describes the report’s purpose—to provide the public and governmental decision-makers . . . with detailed information of the project’s likely effect on the environment; to describe ways of minimizing significant effects; to point out alternatives to the project. . . . By depicting the project’s unavoidable effects, mitigation measures and alternatives, the report furnishes the decision-maker information enabling it to balance the project’s benefit against environmental cost . . . . The report should function as an environmental ‘alarm bell.’" . . . The EIR serves as the informational tool to facilitate informed decisionmaking. (Dusek v. Redevelopment Agency, 173 Cal. App. 3d 1029, 1036-37 (1985) (quoting County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185, 192 (1977)) (emphasis deleted))

In order to achieve these goals, however, an EIR must include a beginning point against which the environmental impacts of a proposed project are measured. This beginning point, mandatory in every EIR, provides a "uniform baseline for the measurement of [the project’s] impact . . . to ‘assess the advantage of terminating the proposal.’" County of Inyo v. City of Los Angeles, 124 Cal. App. 3d 1, 9 (1981). Both the CEQA Guidelines and case law specify that the current environmental setting into which the project would be placed—that is, the existing physical and environmental conditions that would be affected by the project—is the mandatory baseline against which the impacts of the project must be measured.

An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published . . . from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant. (Cal. Code Regs. tit. 14, §15125(a) (1998)).

As more fully discussed below, an EIR must also include a "no project" alternative, including an analysis of the impacts of "no project." The CEQA Guidelines specify that the "no project" alternative "shall discuss the existing conditions at the time the notice of preparation is published . . . as well as what would be reasonably expected to occur in the foreseeable future if the project were not approved, based on current plans and consistent with available infrastructure and community services." Id. §15126.6(e)(2) (1998). The "no project" alternative is intended to "allow decisionmakers to compare the impacts of approving the proposed project with the impacts of not approving the proposed project." Id. §15126.6(e)(1) (1998). However, the "no project" alternative "is not the baseline for determining whether the proposed project’s environmental impacts may be significant, unless it is identical to the existing environmental setting analysis which does establish that baseline." Id. (emphasis added).

The cases have consistently enforced CEQA’s requirement that "existing conditions" be an EIR’s baseline for environmental analyses. For example, in San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus, 27 Cal. App. 4th 713 (1994), the court held an EIR inadequate because it failed to include an adequate description of the existing environmental setting, and because this inadequate baseline had thus made it impossible both to accurately assess the impacts of the project and their significance, and to determine appropriate mitigation measures. Id. at 722-29. In Christward Ministry v. Superior Court, 184 Cal. App. 3d 180 (1986), the court held that an EIR analysis that determined impacts by comparing project impacts with unbuilt and "hypothetically permitted facilities," rather than existing conditions, is "illusory" and violates CEQA. Id. at 190. Every public agency "is required to compare the newly authorized [project] with the actually existing conditions; comparison of potential impacts . . . with potential impacts" that might hypothetically occur in the future violates CEQA. Id.

Similarly, in Environmental Planning & Information Council v. County of El Dorado, 131 Cal. App. 3d 350 (1982) ("EPIC"), an EIR measured the impacts of a project against the future conditions that could exist if all of the future growth permitted under the County’s General Plan were to actually occur. The court held that the County’s failure to use the existing setting as the baseline for the EIR’s environmental analyses violated CEQA, because CEQA compels agencies to use "existing physical conditions" and "the actual environment upon which the proposal will operate" as the EIR’s comparative baseline. Id. at 354. The court held that the EIR’s focus on future conditions that could accompany the buildout that was theoretically permissible in the future under the General Plan "can only mislead the public as to the reality of the impacts and subvert full consideration of the actual environmental impacts which would result." Id. at 358.

In violation of the CEQA Guidelines and this case law, SCAG repeatedly used the "no project" alternative as the comparative baseline for its determination of environmental impacts, rather than a baseline of existing conditions. As more fully discussed in Section II of this brief, SCAG also defined the "no project" alternative as including a broad range of unbuilt future transportation projects, even including numerous hypothetical projects for which "funding is not entirely within the capability of today’s funding sources." 1 AR 79. This too violated CEQA.

1. SCAG Improperly Used The No Project Baseline to Calculate Air Pollution Impacts.

In its calculation of the air pollution impacts caused by vehicles that would use the highway projects included in the Update, the EIR reports that "[p]rojected vehicle emissions expected on the southern California transportation network for the year 2025 under the 2001 RPT Update (all Aviation Scenarios) were compared with those projected under the No Project Alternative at 2025 to identify the incremental impact of the project . . . ." 1 AR 319. The EIR further reported:

For purposes of this analysis, cumulative impacts were assumed to be the contribution of the No Project Alternative. That is to say, if the proposed project were not implemented, the air emissions associated with the anticipated growth and increase in traffic in the region would constitute a cumulative base. To assess cumulative impacts of the proposed project, the No Project was compared to 1997 emissions to derive a cumulative base. The vehicle emissions expected for the No Project form the basis on which the incremental project emissions are added. If the project’s contribution to the cumulative base were to cause a significant impact that would otherwise not have occurred, then the project’s contribution would be considered a significant impact. (1 AR 321 (emphasis added))

As the EIR confirmed at a second point, "the No Project Alternative is considered the cumulative base with respect to air quality." 1 AR 732. The EIR thus quite clearly assessed the vehicular air pollution impacts of the numerous new highway and other transportation projects included in the Update by using a baseline of, and comparison with, the "anticipated growth and increase in traffic in the region" that might occur in the future under the "no project" alternative. 1 AR 321. This is precisely the type of improper and misleading analysis condemned in EPIC, 131 Cal. App. 3d 350.

This invalid methodology is used throughout the EIR’s other air pollution analyses. For example, the EIR reports that "[p]rojected emissions of criteria pollutants are considered significant if they are equal to or greater than the No Project condition for pollutants that would show increases from existing emission levels." 1 AR 320 (emphasis added). It further reports that "estimated air emissions for the year 2025 under the 2001 RTP Update were compared with the No Project condition." 1 AR 325.

The EIR likewise determined the significance of other vehicular pollution under some of the aviation scenarios by comparison with the "no-project" alternative:

· Impact 3.4-2: Compared to the No Project condition, the 2001 RTP update would increase on-road mobile source emissions of some criteria pollutants in some counties under some of the Aviation Scenarios. This would be considered a significant impact. (1 AR 324 (emphasis added))

It determined the significance of toxic air contaminant pollution the same way:

· Impact 3.4-3: The 2001 RTP Update could incrementally increase emissions of toxic air contaminants in Los Angeles and San Bernardino counties compared to the No Project Condition. However, overall, in all counties compared to today TAC would decrease. This would be considered a less than significant impact due to the planned retro-fit program to be implemented by EPA. (1 AR 331 (emphasis added))

With regard to toxic air pollution, the EIR thus not only determined impacts by comparing project impacts to those of the "no project" alternative, but reached its conclusion of "less than significant" by also reducing the EIR’s reported toxic air pollution because of a planned—but unimplemented—program of the EPA. The toxic air contaminant analysis thus was doubly flawed: it not only relied improperly on the "no project" alternative as the analytical baseline, but also included in that baseline a prediction that a potential but as yet unimplemented regulatory program might somehow in some undefined and unquantified way reduce toxic pollution.

The EIR also reported that "[t]o assess the effectiveness of the capital improvements proposed in the 2001 RTP Update, estimated air emissions for the year 2025 under the 2001 RTP Update were compared with the No Project condition" and that "[p]rojected vehicle emissions in 2025 for the No Project condition were compared to the projected emissions in 2025 for the RTP Medium Aviation Scenario." 1 AR 325 (emphasis added). Indeed, the air pollution technical appendix to the EIR explicitly describes the "No Project in 2025" alternative as the "2025 Baseline (No Project)." 2 AR 1001. The EIR also improperly reported that the 2001 RTP Update would result in the construction of "approximately 2,111 more lane miles than the No Project condition," that this is "a total increase of approximately 3.9 percent over the No Project condition spread out over a period of 25 years," and that construction-related air pollution was accordingly "less than significant." 1 AR 336 (emphases added).

Thus, throughout the EIR’s air pollution analyses, SCAG improperly relied upon predicted future physical conditions (and, in some cases, predictions as to potential new regulatory programs) that it included within the definition of "no project" as the analytical baseline, just as El Dorado County did in the EIR invalidated in EPIC, 131 Cal. App. 3d 350.

SCAG’s use of this improper baseline for its air pollution analyses is a critical flaw in the EIR because of significant air pollution in Southern California. The EIR recognizes that many portions of the region fail to meet federal or state air quality standards. E.g., 1 AR 297 (nonattainment for ozone); 1 AR 316, 322, 323, 326 (tables demonstrating nonattainment status in many areas for ozone, carbon monoxide, nitrous oxides and particulate matter); 1 AR 303-04 (exceedances of regulatory standards); 1 AR 305-08, 314 (discussing South Coast Air Quality Basin in detail). The failure of the EIR to adequately and fairly evaluate the actual air pollution impacts of the numerous projects included in the 2001 RTP Update by comparison with existing conditions necessarily means that these serious issues were not fully and fairly disclosed to, and considered by, SCAG’s decisionmakers as they made their decisions.

2. SCAG Improperly Used The "No Project" Baseline To Calculate The Transportation-Related Impacts Of New Highways.

The EIR’s determination of impacts and their significance by comparing project impacts with the "no project" alternative was not limited only to air pollution issues. The same improper methodology was used in evaluating transportation-related impacts and their significance. For example, the EIR specifies that "2025 no project conditions are compared to conditions associated with implementing the 2001 RTP Update . . . to identify the project impact." 1 AR 265 (emphasis added). The transportation section of the EIR then specifies:

To determine the significance of transportation impacts related to the 2001 RTP Update . . . the following performance indicators are evaluated in comparison to future 2025 conditions without the project (No-Project) . . . . For the purposes of analysis, the performance indicators are also used as thresholds of significance as presented below:

· Total Vehicle Miles of Travel (VMT) for All Trips—A significant impact would occur if the project would generate appreciably more total daily vehicle miles of travel than the 2025 No-Project condition.

· Percentage Vehicle Hours of Travel delay (VHT) for All Trips—A significant impact would occur if the project would result in an appreciably higher percentage of VMT in delay than the 2025 No-Project condition.

· Average Delay and percent of total VHT in delay for Heavy-Duty Truck Trips—A significant impact would occur if the percentage of daily travel in delay is appreciably greater with the project than would occur under 2025 No-Project condition.

· Percent of Work Opportunities within 25 minutes for vehicular trips and within 45 minutes for transit trips—A significant impact would occur if the project or project alternative would result in an appreciable decrease in the percent of work opportunities within 30 minutes travel time by vehicle, relative to the 2025 No-Project condition. In addition significant impact could occur if the project or project alternative would result in an appreciable decrease in the percent of work opportunities within 45 minutes travel time by transit, relative to the 2025 No-Project condition. This criterion was applied on a county and regional level. (1 AR 264 (emphases added))

3. SCAG Improperly Used The "No Project" Baseline To Calculate The Transportation-Related Impacts Of New And Expanded Airports.

As discussed more fully below, SCAG defined the "No-Project" condition as involving "the use of all the airports (including El Toro and Point Mugu) and assume[d] that they grow and operate without any constraints." 1 AR 111. The EIR accordingly defined the "No Project" alternative as providing airport passenger services to "approximately 172 million annual passengers . . . for the [Southern California] region" even though "[e]xisting (1997) levels were measured at approximately 80 MAP for the region." 1 AR 265. The "no project" definition thus included a new airport at El Toro, as well as an extraordinary amount of new aviation passenger service—92 million passengers annually.

This massive—but wholly hypothetical—growth of Southern California airports then became SCAG’s comparative baseline for determining the transportation-related impacts of the airports themselves. In fact, SCAG explicitly conceded that point in response to a comment submitted by Orange County.

In its comments on the draft EIR, Orange County wrote:

Regarding aviation impacts, the Draft PEIR appears to confuse the method used to determine the significance of impacts. For California Environmental Quality Act (CEQA) purposes, the significance of impacts is determined by comparing Existing Conditions (Year 2000) to the Project (Year 2025) plus Existing Conditions. In some cases the Draft PEIR appears to determine significance by comparing the RTP Alternatives impacts to Alternative 6, the No Project Alternative, impacts . . . . (3 AR 1533)

SCAG replied that "[f]or each resource area, the 2001 RTP Update is compared with existing conditions and to the No Project at 2025," but explicitly admitted that "[t]he comparison with the No Project at 2025 provides the incremental impacts of the project, since without the 2001 RTP Update, the No Project condition would be expected to occur." 3 AR 1757 (emphasis added). SCAG further conceded that "[t]he project increment is the difference between the Project and No Project conditions." 3 AR 1780 (emphasis added). SCAG thus improperly calculated the transportation-related impacts of new and expanded airports throughout Southern California by comparison with the "no project" alternative.

4. SCAG Improperly Used The "No Project" Baseline In Other Areas Of The EIR’s Impact Analysis.

SCAG’s improper use of the "no-project" alternative as its baseline for environmental analysis also runs throughout other portions of the EIR. For example, it determined project impacts on population, housing and employment by using that improper baseline. 1 AR 135 ("A project impact is identified based on a comparison between the project condition . . . and the future without the project (No Project) condition"). It determined the noise impacts for the highway projects included in the Update the same way. 1 AR 367 ("the future project conditions (2001 RTP Update under each aviation scenario) were compared to the future No Project conditions in order to identify the incremental project impact"). It likewise determined certain energy impacts by using that invalid future baseline. 1 AR 628 ("For purposes of this energy analysis, energy impacts were determined by comparing current energy usage to future conditions with and without the project").

Thus, the impacts of the project throughout significant portions of the entire EIR were improperly calculated by comparison with the "no-project" alternative. The EIR accordingly suffers from precisely the same defects identified in EPIC, 131 Cal. App. 3d at 358.

2. SCAG’s Error Was A Prejudicial Abuse Of Discretion Requiring Invalidation Of The EIR And The Update.

The use of this improper baseline necessarily means that SCAG’s actions were a prejudicial abuse of discretion requiring invalidation of both the EIR and the Update. This type of violation of CEQA has been aptly described as undermining "the most basic charge under CEQA—to inform the decision maker." Planning & Conservation League v. Dep’t of Water Res., 83 Cal. App. 4th 892, 916 (2000). Thus, in San Joaquin Raptor/Wildlife Rescue Center, the court found an EIR legally inadequate and invalidated the agency’s actions taken in reliance on the invalid EIR for virtually the same CEQA violation. The court held:

[T]he ultimate decision of whether to approve a project, be that decision right or wrong, is a nullity if based upon an EIR that does not provide the decision-makers, and the public, with the information about the project that is required by CEQA. The error is prejudicial if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process. (27 Cal. App. 4th at 721-22 (citations and internal quotation marks omitted); see also Stanislaus Natural Heritage Project v. County of Stanislaus, 48 Cal. App. 4th 182, 195 (1996))

As other courts have likewise recognized, "‘[w]hen the informational requirements of CEQA are not complied with, an agency has failed to proceed in "a manner required by law" and has therefore abused its discretion . . . . While we may not substitute our judgment for that of the decision makers, we must ensure strict compliance with the procedures and mandates of the statute.’" Napa Citizens for Honest Gov’t v. Napa County Bd. of Supervisors, 91 Cal. App. 4th 342, 386 (2001) (quoting Save Our Peninsula Comm. v. Monterey County Bd. of Supervisors, 87 Cal. App. 4th 99, 118 (2001) (citations omitted)). Under these circumstances, "[t]he inadequacies . . . necessarily invalidate" the agency’s substantive decision. Id. at 386.

2. 
   
   the eir violates ceqa and the update must be invalidated because SCAG’s "No Project" definition improperly assumed the operations of an enormous new COMMERCIAL AIRPORT AT EL TORO EVEN THOUGH NO SUCH AIRPORT EXISTS, assumed a massive expansion of other airports throughout southern california, and assumed the construction and operation of a high speed rail system to reduce vehicular travel.

SCAG’s improper use of "no-project" conditions as the comparative baseline for environmental analysis was made even more improper by the fact that the "no-project" alternative was defined as including a massive new commercial airport at El Toro even though no such airport now exists, because that baseline further assumed an enormous expansion of air passenger services at other Southern California airports, and because it also assumed the construction and operation of a new high speed rail system to reduce vehicular traffic. Wholly apart from the issue of SCAG’s improper use of the "no project" alternative as its baseline for its environmental analyses, this type of artificially inflated "no-project" definition has also been condemned in the CEQA cases.

The reason for this condemnation is that an inflated baseline always results in a lower reported level of environmental impacts than would actually occur. If an EIR (1) assumes that certain projects will be constructed in the future, (2) assumes future impacts from those unbuilt projects, (3) includes those non-existent projects and their impacts in the baseline, and (4) calculates the impacts of the project at issue by comparing the project with those inflated assumptions for the future, then (5) the comparative baseline is artificially bloated, invariably resulting in a misleading conclusion of a lower level of project impacts.

For example, in County of Inyo v. City of Los Angeles, 124 Cal. App. 3d 1, the City of Los Angeles had repeatedly misdescribed and inflated the "no project" definition in an EIR, with the result that the EIR’s reporting of the environmental consequences of the proposed project, when compared against that artificially inflated description, were far less than in reality. Id. at 9-15. The court invalidated the EIR;

The creation of a "synthetic" no-project alternative . . . makes a sham of the EIR process and invalidates the EIR . . . . It can readily be seen that any project can be made to look good by posing a "synthetic" "no-project" alternative consisting of the absence of the project plus some additional condition . . . ." (Id. at 11-12)

The use of such an artificially inflated description necessarily is prejudicial and invalidates both the EIR and the substantive decision made in reliance on the EIR, because it destroys the EIR’s effectiveness as an informational document. San Joaquin Raptor/Wildlife Rescue Ctr., 27 Cal. App. 4th at 722-29.

But, that is exactly what SCAG did here. As part of the EIR’s "no project" definition, SCAG assumed that El Toro would be developed as a large new commercial airport. Even beyond El Toro, SCAG also assumed the unconstrained expansion of other Southern California airports. It then calculated the impacts of the Update by comparing the projects therein with the impacts of this entirely artificial and wholly inflated "no project" definition.

The EIR’s air pollution analysis confirms these facts. There, the EIR specifies that "[t]he No-Project emissions assume implementation of the RTP Medium Aviation Scenario." 1 AR 321 (emphasis added). The "RTP Medium Aviation Scenario" is then defined as "mostly unconstrained growth at the 12 regional airports, [and] development of El Toro and Point Mugu as commercial airports is assumed . . . ." 1 AR 79 (emphasis added). The "no project" definition thus included this Scenario and, by further definition, an airport at El Toro that would serve 24.79 million passengers and 268,250 flights annually, along with 1,462,000 annual tons of air cargo. 1 AR 113.

Although the EIR recognizes that El Toro "is currently closed" (1 AR 154), under the RTP Medium Aviation Scenario (and thus SCAG’s "no project" definition) "El Toro would be opened for commercial use" (1 AR 212) and "El Toro would increase from zero to approximately 25" million passengers annually. 1 AR 211, 217; see also 1 AR 266 (describing activity at El Toro under this scenario). The "no project" condition accordingly assumed the development of this enormous new airport at El Toro even though no such airport now exists, as well as all of the impacts of such an operational airport.

As the EIR further declares, the RTP Medium Aviation Scenario also "involves the use of all the airports (including El Toro and Point Mugu) and assumes that they grow and operate without any constraints." 1 AR 111 (emphasis added). The EIR concedes that this Scenario—and thus the comparative "no project" baseline of the EIR—assumed "approximately 172 million annual passengers (MAP) for the [Southern California] region" even though "[e]xisting (1997) levels were measured at approximately 80 MAP for the region." 1 AR 265. The "no-project" definition thus included not only a new airport at El Toro, but also an enormous amount of new airport passenger service—some 92 million passengers annually—projected to occur through projected unconstrained growth of other airports throughout Southern California.

The EIR accordingly assumed an operational airport at El Toro as part of the RTP Medium Aviation Scenario—even though no such airport now exists, as well as an enormous growth in passenger service at other Southern California airports—even though those other airports do not now provide that service. This Scenario then was included within the "no project" definition and alternative and the baseline for the EIR’s environmental analyses. The air pollution impacts of the projects in the Update—including an airport at El Toro—were accordingly then calculated by comparing the impacts of those physical projects within the Update with the impacts of all of these future hypothetical projects assumed as part of the No Project alternative. 1 AR 325, 331. The EIR thus calculated the air pollution aspects of the Update—a project including an airport at El Toro and a vast expansion of other airports—by comparison with a "no-project" alternative that by definition included the very same El Toro airport and the very same expansion.

This type of analysis is no more than smoke and mirrors. It provides no principled basis of any kind for a fair and informative evaluation of environmental impacts. With this type of analysis, the impacts of both a new airport at El Toro and a massive expansion of other Southern California airports were automatically zero, because these projects were included in both the project description (the Update) and the "no project" Alternative ("no project" assumes "implementation of the RTP Medium Aviation Scenario" (1 AR 321)). Indeed, SCAG even wrote that "[t]he aviation scenarios could be the same under the No Project Alternative as the 2001 RTP Update." 1 AR 727. It also wrote that the No Project alternative "would involve various programs and projects similar to those discussed for the 2001 RTP Update." 1 AR 742.

But, CEQA requires an analysis of existing conditions and the additional new impacts a proposed project would cause. E.g., EPIC, 131 Cal. App. 3d at 357-58 (comparison of project impacts with forecasted conditions that might sometime exist is improper under CEQA); Christward Ministry v. Superior Court, 184 Cal. App. 3d 180, 190 (1986) (EIR analysis that determined impacts by reference to unbuilt and "hypothetically permitted facilities" violates CEQA). This EIR does not provide this required analysis.

Other portions of the EIR likewise confirm that an operational airport at El Toro and an expansion of other Southern California airports was included within the "no project" definition and that this inflated "no project" definition was the baseline for environmental analyses. For example, the "Aviation Appendix" to the draft EIR defined the baseline condition for analyzing noise impacts at El Toro:

Based on discussions with FAA staff, Reuse Alternative B is currently the most likely alternative to be developed (County of Orange, 1998 and United States, 1999). As a result, projected contours for Year 2025-Reuse Alternative B more accurately represent future operational conditions than do existing conditions, and therefore were used as the baseline condition. (2 AR 1264 (emphasis added))

Thus, the EIR did not use the admittedly closed status of El Toro, but instead automatically assumed that an aviation reuse alternative selected by Orange County would be developed and should be "used as the baseline condition." When SCAG was criticized in a comment for using such an improper baseline (3 AR 1416), it never changed its improper analyses, but simply announced that the quoted language "is hereby deleted from the Aviation Appendix." 3 AR 1728. However, suppressing a confession that improper methodology was used doesn’t cure the crime: it simply ignores and hides the issue.

Finally, SCAG also improperly assumed the construction and operation of a proposed high speed magnetic levitation rail system (Maglev) as part of the "no project" definition. The EIR described the Maglev system as an "intra-regional high-speed rail system [that] would connect major activity and transportation centers in Los Angeles, Orange, Riverside and San Bernardino Counties." 1 AR 99. This system "would be comprised of four lines connecting LAX to March Inland Port and Palmdale to LAX by 2010" and "[i]n 2025, the system would be completed with the two remaining lines, Palmdale to the Los Angeles Union Passenger Terminal (LAUPT) and LAUPT to Orange County and San Bernardino." Id. As is apparent, this system does not now exist.

The EIR nonetheless reports that "the No Project condition assumes the RTP Medium . . . Aviation Scenario." 1 AR 331. It also reports: "AVIATION SCENARIOS . . . . All of the scenarios except the Constrained Airports Scenario (Scenario 6) assume development of the high speed rail (Maglev) system that would use magnetic levitation technology to connect major activity and transportation centers in Los Angeles, Orange, San Bernardino and Riverside Counties." 1 AR 210. Thus, SCAG assumed development of the Maglev system as part of the EIR’s "no project" definition, even though it does not exist. This system was thus improperly included in the "no project" definition, because it is not part of "current conditions."

This significant and prejudicial misuse of the "no project" definition by itself requires invalidation of the EIR and the Update.

3. 
   
   THE EIR VIOLATES CEQA AND THE UPDATE MUST BE INVALIDATED BECAUSE THE EIR DID NOT USE TERMS CONSISTENTLY THROUGHOUT, AND USED INCONSISTENT DEFINITIONS OF THE "NO PROJECT" ALTERNATIVE AND OTHER SIGNIFICANT TERMS.
1. The EIR Violates CEQA And The Update Must Be Invalidated Because The EIR Did Not Use Terms Consistently Throughout, And Used Inconsistent Definitions Of The "No Project" Alternative.

The EIR also violated CEQA, because the "no project" alternative was not consistent throughout the EIR. Instead, it was defined in numerous different and often contradictory ways.

Case law has addressed this precise issue and holds that an EIR must be invalidated if an important definition is not stable and used consistently throughout the EIR. For example, in County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185 (1977), an EIR referred to the proposed project differently in different parts of the document. The court described these varying descriptions as "incessant shifts among different project descriptions" and concluded that the differing definitions invalidated the EIR since it could not be an appropriate "vehicle for intelligent public participation." Id. at 197. As it held, "An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR." Id. at 193. The same rule must necessarily apply to the "no project" definition, especially since it was used as the baseline for environmental analyses.

In violation of this important CEQA rule, the SCAG EIR includes numerous inconsistent definitions of the "no project" alternative:

· When SCAG published its Notice of Preparation, it specified that "[t]he No Project Alternative will include only those regional transportation projects that are completed, under construction, and/or funded in the current Regional Transportation Improvement Program (RTIP)." 4 AR 2141.

· However, when the draft EIR was released, the "No Project" definition was substantially different: "The No Project Alternative, [] is composed of those projects that are reasonably foreseeable, that will go forward, primarily based on funding commitments (these projects are all those included in the 2000 Regional Transportation Improvement Program . . . and Transportation Equity Act for the 21st Century (TEA-21) priority projects). Even for these projects, funding is not entirely within the capability of today’s funding sources. Should funding not be available and projects proceed, operations and maintenance of existing facilities may be impacted during the last ten years of the Plan. As noted above, the No Project Alternative, would include those regional transportation projects that are completed, under construction, and/or funded in the current Regional Transportation Improvement Program (RTIP), and/or are on the Governor’s list of projects and the TEA 21 list." 1 AR 79.

· But, the draft EIR also included other differing and often contradictory definitions: "The No Project condition would include only those projects that have currently received funding." 1 AR 732 (emphasis added). This definition is inconsistent with the more expansive definition quoted immediately above, since that definition includes projects for which "funding is not entirely within the capability of today’s funding sources."

· "The No Project alternative generally includes only fully funded projects, however, there is at least one project (the Centerline project) who’s construction funding is only partially committed but is considered reasonably foreseeable by the Orange County CTC [sic]." 1 AR 1776 (emphasis added). This definition is at odds with the one quoted immediately above ("only those projects that have currently received funding" vs. "generally includes only fully funded projects"), as well as the one first quoted (which includes projects for which "funding is not entirely within the capability of today’s funding sources").

· The draft EIR included even further inconsistent and contradictory definitions: "The No Project Alternative would involve the construction of only those projects that have currently been funded or are reasonably foreseeable. This alternative would not include any projects, which by themselves would consume a large amount of energy . . . ." 1 AR 752 (emphases added). This definition is at complete odds with some of the ones quoted above since it limits the projects included in it to "only those projects that have currently been funded" but then introduces a wholly new concept by excluding any projects "which by themselves would consume a large amount of energy."

This definition then goes further to specify that projects "like Maglev or the extension of Metrolink" are not within the "no project" definition (id.), even though, as discussed above and further below, other portions of the EIR specify that Maglev is included in the "no project" definition. In addition, as also previously discussed, the "no project" definition includes not only a new airport at El Toro, but also a massive expansion of air passenger services at all of the existing airports throughout Southern California, and the EIR expressly recognizes that these projects will have significant energy impact because of increased use of jet fuel. 1 AR 637. The portion of the definition excluding projects that would "consume a large amount of energy" is thus internally inconsistent with that other definition that includes new and expanded airports.

· "The No Project Alternative is comprised of those projects that are reasonably foreseeable, that are reasonably expected to go forward, and are primarily based on funding commitments . . . . In addition, there are several projects which, while not fully funded, are considered reasonably foreseeable (they are sufficiently committed) to be included in the No Project condition. Under this alternative there would be no additional changes made to highways, arterials, or transit systems other than what is currently committed. However, even for these projects, funding is not entirely within the capability of today’s funding sources." 1 AR 719. This definition, contrary to some of those quoted above, includes "several projects" which are "not fully funded," as well as the contradictory notions of "no additional changes . . . other than what is currently committed" and projects that "are primarily based on funding commitments."

· "The No Project alternative considers only projects that are completed, under construction already funded or otherwise considered reasonably foreseeable [sic]. Aviation projects do not fall under this same description." 1 AR 1777. This definition thus specifies that the "No Project" alternative considers only projects that are "already funded," as opposed to the above definitions that include "several projects" that are "not fully funded," projects that "are primarily based on funding commitments," and projects for which "funding is not entirely within the capability of today’s funding sources." And—for reasons unknown—aviation projects are included in the definition, but under some other undisclosed criteria.

· "[T]he No Project emissions assume implementation of the RTP Medium Aviation Scenario." 1 AR 321. "[T]he No Project condition assumes the RTP Medium . . . Aviation Scenario." 1 AR 331. The "RTP Medium Aviation Scenario" is "mostly unconstrained growth at the 12 regional airports, [and] development of El Toro and Point Mugu as commercial airports is assumed . . . ." 1 AR 79 (emphasis added). This definition thus includes not only a new airport at El Toro, but a massive expansion of all Southern California airports.

· But, when this definition was criticized in comments on the draft EIR, SCAG told the public precisely the opposite: "El Toro is not assumed in the No Project condition." 3 AR 1776 (emphasis added).

· And then, in a definition that provided only more contradiction, SCAG wrote: "Baseline combined with Aviation Scenario 6 is the RTP No Project combined with the no new construction for Airports Scenario." 3 AR 1769. As noted, however, the "no project" baseline had already been defined as including new construction of an El Toro airport and expansion of other Southern California airports.

· The EIR specifies that "[A]ny of the Aviation Scenarios could occur under the No Project condition . . . ." 1 AR 321. "Any one of the Aviation Scenarios may occur under any RTP condition or even the No Project condition because the aviation scenarios will occur independent of the RTP." 3 AR 1719. In fact, SCAG even wrote that "[t]he aviation scenarios could be the same under the No Project Alternative as the 2001 RTP Update." 1 AR 721 (emphasis added).

· But, two of the Aviation Scenarios did not include an airport at El Toro. 1 AR 113 (Scenarios 6 [Constrained] and 9). How could the "no project" be stable throughout the EIR, much less serve as a fixed baseline for environmental analyses, whether or not it included an El Toro airport? Moreover, the varying aviation scenarios included multiple differing levels of passenger service, air cargo service, and aircraft flights for each of the existing and proposed Southern California airports. Id. How could these multiple varying scenarios for twelve different airports possibly serve as a fixed baseline for analysis?

· Further, Aviation Scenario 6 is one in which expansion of Southern California airports was limited or "constrained," but the Medium Aviation Scenario, as noted above, was defined as "unconstrained growth at the 12 regional airports." 1 AR 79 (emphasis added). How could "[a]ny of the Aviation Scenarios occur under . . . the No Project condition" when one assumed unconstrained growth, and another assumed exactly the opposite? How could a constrained and an unconstrained scenario both serve the same definition?

· As noted above, SCAG at one point wrote: "The No Project Alternative is comprised of those projects that are reasonably foreseeable, that are reasonably expected to go forward, and are primarily based on funding commitments" (1 AR 719) and that the development of an airport at El Toro was "assumed" under this Alternative because of these reasons. 1 AR 79.

· However, SCAG also wrote at least twice in the EIR that "Orange County currently is, and is forecast to remain without development of an airport at El Toro." 3 AR 1775, 1840 (emphasis added). It also wrote that "SCAG forecasts do not specifically address whether or not El Toro would be present or not in 2025 . . . ." 3 AR 1758. How can an airport at El Toro possibly be "reasonably foreseeable" or "reasonably expected to go forward" when Orange County "is forecast to remain without development of an airport at El Toro" or if SCAG forecasts do not specifically address whether that airport would exist?

· One party commenting on the draft EIR wrote that the "[b]aseline for the aviation scenarios appears to change throughout the technical documents accompanying the draft PEIR." 3 AR 1554. SCAG then introduced an entirely new set of issues in its response: "For purposes of comparison of aviation-related impacts, only the "Towards an Optimized Aviation Scenario" uses the Baseline (No Project) condition combined with Aviation Scenario 6. Baseline combined with Aviation Scenario 6 is the RTP No Project combined with the no new construction for Airports Scenario. Decentralized Scenario combined with 2001 RTP and 2001 RTP plus Decentralized Scenario are the same (i.e., the 2001 RTP regional transportation system with the Decentralized Aviation Scenario). Baseline (assuming Aviation Scenario 6) and Baseline plus Scenario 6 are also the same (i.e., the Baseline or No Project transportation system with Aviation Scenario 6)." 3 AR 1769. Given this wholly impenetrable definition, it is not at all surprising that even the senior aviation planner on SCAG’s staff admitted that "[t]he alternatives presented are very confusing . . . ." 9 AR 3920 (emphasis in original).

· That same commenter also wrote that "[i]t is unclear what constitutes the ‘No Project’ alternative for the aviation component of the PEIR." 3 AR 1555. SCAG’s response then expressly admitted the validity of that observation: "Since the aviation system is not regulated by SCAG or its RTP, the PEIR is not clear what the ‘No Project’ aviation scenario would be . . . . It appears that any one of the Aviation Scenarios could reasonably be expected to occur under the No Project condition, and for that reason the EIR analyses [sic] them all for the No Project. For purposes of comparison . . . RTP Medium Aviation Scenario is used in the EIR since it represents generally the most traffic on the transportation system." 3 AR 1769 (first emphasis added).

2. The EIR Also Used Inconsistent Definitions Of Other Significant Terms Throughout The EIR.

The EIR also used inconsistent definitions of other significant terms throughout the EIR. For example:

· As already discussed, the EIR discussed a proposed high speed Maglev rail system. This system was improperly included in the "No Project" definition, because it does not now exist and is thus not part of "current conditions." For example, SCAG wrote that "the No Project condition assumes the RTP Medium . . . Aviation Scenario." 1 AR 331. It also wrote: "Aviation Scenarios . . . . All of the scenarios except the Constrained Airports Scenario (Scenario 6) assume development of the high speed rail (Maglev) system that would use magnetic levitation technology to connect major activity and transportation centers in Los Angeles, Orange, San Bernardino and Riverside Counties." 1 AR 210. Thus, SCAG wrote that that (1) the "No Project" baseline assumes the RIP Medium Aviation Scenario and (2) that Aviation Scenario further assumed development of the Maglev system.

· But, at the same time, it wrote that "The No Project Alternative . . . would not include development of the Maglev high-speed rail system." 1 AR 732 (emphasis added); 1 AR 265 ("the RTP Medium Aviation Scenario is defined as not including Maglev"). In response to comments, it also wrote that "Maglev is not a part of the No Project alternative." 3 AR 1778 (emphasis added). In response to another comment, however, it then wrote: "the analysis is of the 2001 RTP Update is with the RTP Medium Aviation Scenario [sic] including Maglev (since Maglev is currently part of the 2001 RTP Update)." 1 AR 1769.

These "incessant shifts among different project descriptions" necessarily meant that the EIR could not be either an appropriate "vehicle for intelligent public participation" or a document that adequately and analytically advised the SCAG decisionmakers of the environmental impacts of its project. This therefore requires invalidation of the EIR and Update. County of Inyo v. City of Los Angeles, 71 Cal. App. 3d 185, 197 (1977).

4. 
   
   THE EIR AND THE UPDATE MUST BE INVALIDATED BECAUSE THE EIR REPEATEDLY USED LEGALLY ERRONEOUS STANDARDS OF SIGNIFICANCE IN ITS DETERMINATION OF ENVIRONMENTAL IMPACTS.

Wholly apart from the EIR’s improper use of the "no project" alternative as the baseline for determining environmental impacts and their significance, SCAG also used legally erroneous standards of significance in its determination of those impacts.

Under CEQA, once the baseline of existing conditions is described, then the next step is analyzing the impacts the project will cause and whether those impacts are significant or less than significant. This latter step is also critical to the EIR process, because if an impact is significant then the mandatory mitigation requirements of CEQA, discussed below, apply. In addition, if there are significant impacts caused by a project that cannot feasibly be mitigated, then the agency may proceed only if it adopts a "Statement of Overriding Considerations" in which it balances those impacts with the economic or other benefits of the project, and concludes that the benefits outweigh the environmental detriment. E.g., Sierra Club v. Contra Costa County, 10 Cal. App. 4th 1212, 1222 (1992). The standards by which the significance vel non of any impact is determined are thus critical to this process. In this case, SCAG failed to follow the standards of significance supplied by the CEQA Guidelines and instead used standards that are inconsistent with CEQA.

1. The EIR Violates CEQA Because It Used Incorrect Standards of Significance Regarding Growth-Inducing Impacts.

The CEQA Guidelines specify that an EIR must analyze growth-inducing impacts (Cal. Code Regs. tit. 14, §15126 (1998)), and that this analysis must include "the ways in which the proposed project could foster economic or population growth, or the construction of additional housing, either directly or indirectly, in the surrounding environment." Cal. Code Regs. tit. 14, §15126.2(d) (1998).

The SCAG EIR recognizes this obligation. 1 AR 794. However, it then specifies that

growth inducement is any growth which exceeds planned growth of an area and results in new development which would not have taken place without the implementation of the proposed project. Typically, the growth-inducing potential of a project would be considered significant if it results in growth or population concentration that exceeds those assumptions included in pertinent master plans, land use plans, or projections made by regional planning authorities. (Id. (emphasis added))

The EIR thus determined the growth-inducing impacts of the Update by determining whether growth would exceed the "planned growth of an area," and whether that growth would exceed "those assumptions included in pertinent master plans, land use plans, or projects made by regional planning authorities." Thus, again, the EIR calculated impacts not by reference to current conditions, but by reference to future hypothetical conditions that might exist under other plans.

This methodology violates CEQA. In EPIC, 131 Cal. App. 3d 350, the County also determined growth-inducing impacts by reference to such other plans and the planned growth of the area. Id. at 356-57. The court invalidated the EIRs at issue because CEQA requires calculation of growth-inducing impacts instead by reference to current conditions:

The comparisons utilized in the EIRs can only mislead the public as to the reality of the impacts and subvert full consideration of the actual environmental impacts which would result. There are no extensive, detailed evaluations of the impacts of the proposed plans on the environment in its current state. Accordingly, the EIRs fail as informative documents. (Id. at 358)

The EIR and the Update must therefore be invalidated for this further methodological error.

2. The EIR Violates CEQA Because It Used Incorrect Standards Of Significance Regarding Aircraft Air Pollution.

The EIR also used a legally incorrect standard of significance in evaluating air pollution from aircraft. It reports that air pollution from aircraft operating in the future would "increase in response to additional aircraft operations when compared to existing (1999) levels." 1 AR 340. Some of these increases attributable to aircraft alone are: almost two tons per day of reactive organic gases, twenty-seven tons per day of nitrous oxides, thirty-five tons per day of carbon monoxide, and significant increases in particulate matter and sulfur oxides. 1 AR 341.

The EIR further reports that "[a]ircraft emissions contribute incrementally to overall criteria pollutant concentrations in the region." 1 AR 340. However, notwithstanding the enormous daily increases in pollution attributable to new aircraft operations, it then concludes that "[a]lthough the airport emissions are projected to increase from current levels, these increases are minor in comparison to the overall emissions in the SCAB [South Coast Air Basin]." Id. (emphasis added). In responses to comments, SCAG repeated that "increased emissions from aircraft would constitute a less-than-significant impact with respect to overall emissions in the region." 3 AR 1783 (emphasis added). Accordingly, in its reported impacts the EIR concludes that "Increased air traffic would increase aircraft emissions and general support equipment. This would be considered a less than significant impact." 1 AR 338 (emphasis in original).

Case law establishes that such a "drop in the bucket" rationale violates CEQA, and that an EIR may not validly conclude that new air pollution will be less than significant on the ground that it is "minor in comparison to the overall emissions" in an air management basin. Kings County Farm Bureau v. City of Hanford, 221 Cal. App. 3d 692 (1990), is squarely on point. There, the agency concluded that a project’s contribution to ozone air pollution would be "minor . . . compared to total regional emissions," and that its air pollution impacts were therefore insignificant. Id. at 714.

The Court of Appeal held this rationale violated CEQA. As it wrote:

The EIR’s analysis uses the magnitude of the current ozone problem in the air basin in order to trivialize the project’s impact. In simple terms, the EIR reasons the air is already bad, so even though emissions from the project will make it worse, the impact is insignificant . . . . The relevant question to be addressed in the EIR is not the relative amount of precursors emitted by the project when compared with preexisting emissions, but whether any additional amount of precursor emissions should be considered significant in light of the serious nature of the ozone problems in this air basin." (Id. at 718)

The Court applied the same rationale to the EIR’s discussion of cumulative air quality impacts and accordingly invalidated the EIR’s air pollution analysis. Id. at 714-21. Kings County thus controls this case and requires invalidation of the EIR on this further ground.

3. The EIR Violates CEQA Because It Used Incorrect Standards Of Significance Regarding Air Pollution Caused By Construction.

The EIR also reported that the "2001 RTP Update would involve substantial construction to implement the proposed projects," and that "some of the larger projects would be expected to exceed the significance thresholds" established by the South Coast Air Quality Management District thus "creating significant short-term impacts." 1 AR 336. Nonetheless, the EIR reported that this increased construction-related air pollution would be a "less than significant impact" because the EIR analyzed projects "on a programmatic level." Id.

In response to comments, SCAG repeated that view:

It is anticipated that on a project-by-project basis, individual construction-related impacts for larger projects will be considered significant . . . . However, at the planning level considered for the RTP, construction emissions associated with the RTP were considered less than significant for a program of this magnitude. . . . [A]s identified in the PEIR, the analysis indicates that individual projects are expected to have significant impacts on construction emissions (i.e., exceed SCAQMD thresholds for individual construction projects). This Program EIR uses a larger threshold of significance . . . . The RTP would increase total lane miles of construction by about 3.9% compared to the No Project condition. The EIR used a threshold of 5% increase to identify a potentially significant programmatic impact." (3 AR 1777)

This type of analysis stands CEQA on its head: an EIR cannot validly report that many individual projects encompassed within its analysis will each have significant impacts, but then conclude that the overall impact of all of the projects cumulatively considered in the EIR is less than significant because of the scope of the analysis. If anything, CEQA requires a full identification and analysis of the cumulative impacts of all of these projects together, rather than a response that the impacts are insignificant because the project is so large.

Virtually the same argument was rejected in Stanislaus Natural Heritage Project v. County of Stanislaus, 48 Cal. App. 4th 182 (1996). There, the County certified a "first tier" EIR which deferred analysis of the impacts of specific projects until later. The Court of Appeal invalidated the EIR, holding that "tiering" is "not a device for deferring the identification of significant environmental impacts." Id. at 199. "Calling it a ‘program’ does not relieve [SCAG] from having to address the significant environmental effects of that project." Id. at 202. The EIR is thus invalid for this additional reason.

4. The EIR Is Invalid Because It Used Incorrect Standards of Significance For Calculating El Toro-Related Noise.

The EIR also used an invalid baseline for calculating the noise impacts that would be caused by use of El Toro as a commercial airport, and then further used invalid criteria to determine the significance of the noise that would be created by all of the projects in the Update.

First, SCAG did not evaluate the noise impacts of operating El Toro as a commercial airport by comparing, as CEQA requires, the current noise from the closed former Marine base with noise that would be generated by future commercial airport operations.

The EIR recognizes that El Toro has been closed and that no commercial airport exists at that site. 1 AR 154, 356. Accordingly, SCAG’s analysis should have compared the noise that would result from a new commercial airport with the "existing conditions" of no aviation use and no noise.

But, instead, SCAG’s consultant wrote that he had talked to Orange County, had determined that the County’s commercial aviation plan for future use of El Toro was likely, and that "[a]s a result, projected [noise] contours for Year 2025—Reuse Alternative B more accurately represent future operational conditions than do existing conditions, and therefore were used as the baseline condition." 2 AR 1264. SCAG thus did not determine specific El Toro-related noise impacts by comparison with existing conditions, but used an improper baseline of "future operational conditions." This violates the rule, discussed above, that impacts must be calculated by comparison with existing conditions. E.g., EPIC, 131 Cal. App. 3d at 357-58.

Second, wholly apart from this improper use of "future operational conditions" as the comparative baseline for El Toro, the EIR reported generally that four "significance criteria were used to determine the significant noise impacts resulting from the proposed project." 1 AR 369. These four "significance criteria," however, are inconsistent with the "significance criteria" established by the CEQA Guidelines.

The CEQA Guidelines (Cal. Code Regs. tit. 14, §15387, App. G (1998)) list six separate criteria, five of which are applicable here. The criteria reported in the EIR include only one of those five:

Would the project result in:

a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies?

b) Exposure of persons to or generation of excessive groundborne vibration or groundborne noise levels?

c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project?

d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project?

e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? (Id.)

Thus, the "significance criteria" used in the EIR include only one ("Exposure of persons to or generation of excessive groundborne vibration or groundborne noise levels") of the criteria specified in the Guidelines. Important aspects of the noise analysis required by the Guidelines thus were wholly ignored in the EIR. This is yet a further ground for invalidation of the EIR and the Update.

5. The EIR Is Invalid Because It Used Incorrect Standards Of Significance For Calculating Population, Housing And Employment Impacts.

The EIR also used legally invalid standards of significance in determining if "the 2001 RTP Update could have a significant effect on the population and on the existing residential or commercial uses of the communities." 1 AR 136.

In making this determination, the EIR reported that "[t]he project would have an adverse effect on the population if it would induce substantial growth in the region beyond adopted regional population projections. Additionally, a significant impact would result if substantial unanticipated/unplanned for population growth were to occur." Id. (emphasis added). The EIR explicitly determined that the Update would have a less-than-significant impact on population growth, because "anticipated changes are minor" in light of "the predicted regional assumptions." 1 AR 138. However, these determinations, like the others previously discussed, did not analyze the impacts of the project by comparison against current conditions.

Instead, the EIR determined whether the project would induce substantial growth "beyond adopted regional population projections" or if there would be "unplanned for population growth . . . ." 1 AR 136. The EIR concluded that the project would not significantly affect population growth in light of "the predicted regional assumptions." This determination of project impacts by measuring growth against the hypothetical growth that might occur if "regional population projections" were to occur is precisely the analysis invalidated in EPIC, 131 Cal. App. 3d at 356-358. Just as in EPIC, "[t]here are no extensive, detailed evaluations of the impacts of the proposed [project] on the environment in its current state." Id. at 358.

5. 
   
   The EIR Is Invalid and the update must be invalidated Because the eir Used An Outdated Air Resources Board Program For Calculating Air Pollution Impacts Rather Than The Most Current Program, Even Though SCAG Knew That The Outdated Program Severely Understated Air Pollution Impacts.

The EIR reports that for the air quality analysis, SCAG used a computer program with pollution "emissions factors . . . established by the California Air Resources Board." 1 AR 319. This program formed the basis of SCAG’s analysis of air pollution that would be generated by "mobile sources." Id. This program and the pollution emission factors in it thus were an important part of SCAG’s air pollution analyses.

However, the program that SCAG used was not the most current one approved and recommended for use by the Air Resources Board. One comment on the EIR noted that "[i]t would be preferable to use the most current emission model for calculating mobile source emissions, EMFAC 2000, which was recently adopted by CARB as being more representative of mobile source in-use emissions." 3 AR 1618. SCAG rejected this comment, on the ground that "[t]he air quality analysis utilized the most recent accepted air emissions factors available" and that the "new EMFAC2000 emissions factors were not yet available when the calculations were conducted . . . ." 3 AR 1813.

This response undermines and defeats the purposes of CEQA. SCAG’s "calculations were conducted" more than a year before SCAG finalized its EIR. Thus, SCAG had ample opportunity during the intervening year to use the more recent ARB program and recalculate the anticipated air pollution.

Moreover, even at that time—more than a year earlier—SCAG staff knew and had publicly conceded that the program and emissions factors that it used dramatically understated the air pollution that would actually be generated by the project. In March 2000, SCAG’s "Aviation Task Force" met for a staff briefing. The minutes of that briefing report indicate that staff advised SCAG:

For the Air Quality Analysis, Staff applied the California Air Resources Board Emission Factor based on their Motor Vehicle Emission Inventory Version 7g (EMFAC7G) to the Ground Access data to compute estimated emissions for all air passenger and air cargo-related travel. As an aside, Mr. Ikhrata noted that the Emission Factor used here, EMFAC7G, was about to be superceded by a more current version, which would in all probability be somewhere between 100-130% higher. As such, the analysis presented here should be considered generous to the polluters, and representing best-case outcomes in terms of emissions. (45 AR 15829 (emphasis added))

SCAG was thus well aware that its air pollution calculations did not reflect the most current knowledge and significantly understated actual air pollution, but it never reported that fact to the public in the EIR. Instead, it knowingly chose to rely on the fact that it had prepared those calculations more than a year prior to completing the EIR as a justification for hiding the true air pollution related to the Update.

The same issue involving the use of an outdated Air Resources Board program was presented in Berkeley Keep Jets Over The Bay Committee v. Board of Port Commissioners, 91 Cal. App. 4th 1344 (2001). There, the agency used an outdated "speciation profile" for calculating the impacts of toxic air contaminants, even though the Air Resources Board had released a newer and more accurate profile before certification of the EIR. The court held that "[b]y using scientifically outdated information derived from the 1991 profile, we conclude the EIR was not a reasoned and good faith effort to inform decision makers and the public about the increase in TAC emissions that will occur as a consequence of the Airport expansion." Id. at 1367. The court emphasized that because air pollution impacts are "one of the most important environmental consequences" of a planned airport expansion, the agency was obligated to use the newer profile in its calculations. Id. at 1366-67.

Precisely the same may be said here. SCAG used the outdated program for evaluating "estimated emissions for all air passenger and air cargo-related travel" even though it knew that program underestimated pollution "somewhere between 100-130%" and the program "should be considered generous to the polluters." 45 AR 15829. The actual air pollution related to the Update was thus hidden from public scrutiny and never accurately reported.

As in Berkeley Keep Jets Over The Bay Committee, this pollution is "one of the most important environmental consequences" of planned new airports and airport expansions especially given, as discussed earlier, the significant air pollution that already exists in Southern California. The use of this admittedly outdated program that so significantly understated the actual air pollution that these projects would cause is yet another reason for invalidating the EIR and the Update.

6. 
   
   SCAG HAS ADMITTED THAT ITS "FAIR SHARE" DETERMINATIONS AND ITS calculation of DEMAND FOR AIR PASSENGER SERVICES IN ORANGE COUNTY WERE SIGNIFICANTLY AND ERRONEOUSLY OVERSTATED.

The EIR specifies that the Update was prepared in order to satisfy a series of regional transportation goals, and that the projects selected therein were evaluated and ultimately included on the basis of those goals and a series of other transportation policies. 1 AR 91-92. Among those policies is Policy 18, specifying that "[e]ach County should provide environmentally acceptable airport capacity within its own market area to meet local and domestic air passenger demand." 1 AR 92. This type of "fair share" policy was an important factor for SCAG in its selection of a commercial airport at El Toro as part of its regional aviation plan, and its determination that this airport should serve approximately 30 million passengers annually by the year 2025. E.g., 3 AR 1840-41.

However, after certification of the EIR SCAG admitted that it had significantly overreported actual demand from Orange County. This significant error means that SCAG included an airport at El Toro in the 2001 RTP Update on the basis of admittedly flawed data. The EIR and the Update, as well as SCAG’s Statement of Overriding Considerations, are all based on that flaw.

SCAG repeatedly represented in responses to comments on the EIR that it had data "derived from over 60,000 air passenger surveys taken at all six air carrier airports in the region as well as at Lindbergh Field in San Diego" demonstrating that Orange County "currently generates about 16 MAP of origin-destination (O&D) demand (18.41% of the regional total, not including San Diego). The 16 MAP includes visitors, business travelers and tourists to Orange County. John Wayne currently serves about 44% of that demand[.]" E.g., 3 AR 1840, 1723, 1781, 1789. SCAG also included a number of different aviation scenarios that included an El Toro airport in the Update, and it reported that "[t]hese scenarios are based on passenger demand, signifying there is unmet demand in Orange County" and Orange County is "the area of the region with the greatest shortfall in available airport capacity in terms of meeting local personal and business air travel needs." 3 AR 1840, 1775.

Leonard Kranser, the editor and co-founder of a website addressing El Toro-related issues, then wrote SCAG asking for access to the surveys, because SCAG’s response "seemed to me to very significantly overstate the origin-destination demand of Orange County." Declaration of Leonard Kranser In Support Of Petition For Writ Of Mandate ("Kranser Decl.") ¶6. After further discussions, SCAG then refused to respond on the ground that the survey responses were "proprietary" and owned by SCAG’s consultants. Id. ¶¶7-12.

Kranser pursued his requested information, only then to be told by SCAG’s legal staff that the information was not only proprietary, but that SCAG under the Public Records Act was entitled to withhold the information. Id. ¶15. Kranser continued to request the information, detailing why he believed SCAG’s representations to be incorrect. Id. ¶¶16-17. Kranser also spoke directly to the President of CitiGroup Technologies, SCAG’s consultant, and was given information at odds with SCAG’s EIR responses. Id. ¶18.

Kranser finally received a substantive verbal response from SCAG’s legal staff, in which SCAG admitted that its figures were incorrect and overstated. Id. ¶20. Nonetheless, SCAG still continued to argue that its calculation was "not really a document covered by the Public Records Act," so SCAG would not respond in writing. Id. Kranser then spoke directly to one of the SCAG aviation planners who confirmed that SCAG’s "best estimate for Orange County O&D demand for 2000 is 12 MAP rather than 16 MAP. That is the number of actual flights by persons residing in or visiting OC during the year." Id. ¶21. Kranser confirmed that conversation in an e-mail to the planner (id.) and the planner then confirmed the accuracy of Kranser’s e-mail. Id. ¶22.

Kranser’s persistence thus uncovered a significant error in SCAG’s calculations—one which SCAG for obvious reasons was reluctant to reveal and admit, since it was an important fact in its decision to include an El Toro airport in the Update. Kranser’s efforts demonstrate:

(a) As a result of SCAG’s error and misrepresentation, its EIR and Update were improperly based on a significant overstatement of Orange County’s demand for air passenger services by 33% (i.e., 16 MAP vs. 12 MAP); and

(b) Since Orange County’s John Wayne Airport already services 7 MAP of the 12 MAP demand, the EIR and the Update were also improperly based on a significant 80% overstatement of the number of Orange County residents, visitors and tourists using other airports in Southern California (9 MAP vs. 5 MAP).

As noted earlier, SCAG’s conclusions with regard to an airport at El Toro were based in significant part on its policy that "[e]ach County should provide environmentally acceptable airport capacity within its own market area to meet local and domestic air passenger demand." 1 AR 92. The earlier sections in this brief demonstrate that SCAG’s conclusions regarding environmental impacts were flawed in innumerable ways and did not satisfy the requirements of CEQA. The EIR thus could not have served as a valid basis for addressing or deciding any issues of "environmentally acceptable airport capacity."

Kranser’s documentation of SCAG’s significant overstatement of Orange County air passenger demand also demonstrates that SCAG’s conclusions with regard to any need for an airport at El Toro "to meet local and domestic air passenger demand" were also flawed. As noted, SCAG’s calculations were overstated in one major instance by 80%. These extraordinary flaws are an even further basis for invalidating the EIR and the Update.

7. 
   
   THE EXTENSIVE METHODOLOGICAL FLAWS IN THE EIR NECESSARily MEAN THAT THE EIR VIOLATES CEQA’S MITIGATION REQUIREMENTS.

The methodological flaws throughout SCAG’s EIR also necessarily mean that SCAG failed to comply with CEQA’s requirements for mitigation of significant adverse environmental impacts when feasible.

CEQA required SCAG to adopt all feasible mitigation measures that would substantially lessen or avoid any significant environmental impacts identified in the EIR. Pub. Res. Code §21002. "Under CEQA, a public agency must . . . consider measures that might mitigate a project’s adverse environmental impact, and adopt them if feasible." Mountain Lion Found. v. Fish & Game Comm’n, 16 Cal. 4th 105, 123 (1997). "CEQA’s substantive mandate [requires] that public agencies refrain from approving projects for which there are feasible alternatives or mitigation measures . . . ." Id. at 134. As the Court re-emphasized only last year, "[i]f the EIR identifies significant effects on the environment the lead agency may not approve the project unless it finds that changes have been made in the project to avoid those effects, or, if the mitigation measures or alternatives identified in the EIR are not feasible, there are overriding benefits that outweigh the impact on the environment." Friends of Sierra Madre v. City of Sierra Madre, 25 Cal. 4th 165, 185 (2001).

The EIR’s use of the improper "no project" baseline rather than the required baseline of existing conditions, its use of an artificially inflated "no project" baseline, its inconsistent definition of this baseline along with other inconsistent definitions in the EIR, and its use of improper standards regarding many environmental impacts necessarily means that SCAG improperly evaded these mandatory mitigation requirements. By failing to accurately describe significant environmental impacts, and by improperly concluding that in many cases there would be no impacts caused by the projects included in the Update, SCAG created a document in which it failed to grapple with and mitigate the true impacts of the projects.

As the Court of Appeal for this District recently observed:

There is a sort of grand design in CEQA: Projects which significantly affect the environment can go forward, but only after the elected decision makers have their noses rubbed in those environmental effects, and vote to go forward anyway. (Vedanta Soc’y of S. Cal. v. Cal. Quartet, Ltd., 84 Cal. App. 4th 517, 530 (2000))

The errors in the EIR, however, make it clear that SCAG’s decision makers had no such confrontation, and that they "vote[d] to go forward anyway" in the wholly erroneous belief that these projects in many aspects would have no environmental impacts and that no mitigation was therefore required. The massive methodological errors in the EIR therefore necessarily mean that SCAG also violated CEQA’s requirements for mitigation.

8. 
   
   THE EXTENSIVE METHODOLOGICAL FLAWS IN THE EIR NECESSARILY MEAN THAT SCAG ALSO VIOLATED CEQA’S REQUIREMENTS REGARDING THE STATEMENT OF OVERRIDING CONSIDERATIONS.

Finally, the same flaws in the EIR necessarily also mean that SCAG violated the requirements of CEQA with regard to its Statement of Overriding Considerations.

As already noted, an agency may approve a project notwithstanding significant unmitigated adverse environmental effects, if it finds "there are overriding benefits that outweigh the impact on the environment." Friends of Sierra Madre, 25 Cal. 4th at 185.

A statement of overriding considerations reflects the final stage in the decisionmaking process by the public body. A public agency can approve a project with significant environmental impacts only if it finds such effects can be mitigated or concludes that unavoidable impacts are acceptable because of overriding concerns. (Pub. Resources Code, §21081; Guidelines, §§15091 and 15092.) If approval of the project will result in significant environmental effects which "are not at least substantially mitigated, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or other information in the record." (Guidelines, §15093, subd. (b).) These reasons constitute the statement of overriding considerations which is intended to demonstrate the balance struck by the body in weighing the "benefits of a proposed project against its unavoidable environmental risks." (Guidelines, §15093, subds. (a) and (c).) (Sierra Club v. Contra Costa County, 10 Cal. App. 4th 1212, 1222 (1992))

By definition, however, a valid Statement of Overriding Considerations must be based on a valid EIR: if the EIR has not satisfied the requirements of CEQA and has not accurately informed the decisionmakers of the actual environmental impacts of the project, then it is impossible for the decisionmakers to accurately "balance" the benefits against the impacts.

Here, SCAG adopted a Statement of Overriding Considerations (4 AR 2046-2082). In the Statement, it listed eleven benefits of the project, and purported to find that these "overall benefits of the proposed 2001 RTP Update and the economic, social and other considerations outweigh and override the unavoidable adverse environmental impacts discussed in the findings." Id. at 2081. It also purported to find that "SCAG has balanced the above benefits of the proposed project against its unavoidable environmental impacts and has indicated its willingness to accept those risks." Id. at 2082.

In fact, however, for all of the reasons discussed above, the EIR failed to accurately disclose the environmental impacts of the project. Because the EIR was so deficient, it was not possible for SCAG to in fact "balance" the impacts against the benefits. SCAG’s Statement of Overriding Considerations is thus invalid.

4. CONCLUSION

WD 031102/F-1170113/W6/979026/v2