Laurel Heights Improvement Ass'n of San Francisco v. Regents of the Univ. of Cal.
Citation: 19 ELR 20427
No. No. S001-1922, 764 P.2d 278/253 Cal. Rptr. 426, (Cal., 12/01/1988)
The California Supreme Court rules that an environmental impact report (EIR) under the California Environmental Quality Act (CEQA) must discuss foreseeable future impacts of a chosen alternative, CEQA requires both mitigation measures and project alternatives to be discussed in an EIR, and the agency must explain why other alternatives were not chosen. The University of California's San Francisco campus proposed to relocate its pharmaceutical biomedical research facility to the Laurel Heights neighborhood of San Francisco, an area with mixed residential and commercial uses. Initially, the facility would only partially occupy the building in question; another state agency and private tenants leased the majority of the space. An EIR on the proposed move revealed that hazardous wastes would be generated at the facility and that there was a potential for human exposure. The EIR also identified direct and cumulative effects on air quality, noise, traffic congestion, and parking. The court first rules that a public agency's approval of a project or future portions of a project is not a prerequisite for an EIR, since CEQA requires that significant environmental impacts be evaluated prior to a project's approval. The court then rules that an EIR must include an analysis of the environmental effects of future uses or expansion of a project if such use is a reasonably foreseeable consequence of the initial project and the future action will be significant. The court defines "significance" as a likely change in the scope or nature of the initial project. The court holds that future expansion of the biomedical facility was reasonably foreseeable, since the EIR anticipated that the university would occupy the entire facility when the remainder of the space becomes available. That the university has not determined precisely how it will use the rest of the building is immaterial; it is clear that it will be developed as a biomedical research facility. The court also holds that the future action will be significant, since the proposed future action would more than triple the space used and almost double the number of occupants. The court holds that the EIR was inadequate because it failed to discuss the anticipated future uses of the new facility and the environmental effects resulting from those uses. The EIR did not discuss the additional environmental effects, if any, that would result from the university's use of the additional space once it becomes available. Although specific details are not possible to predict, the university can review at least general effects of reasonably foreseeable uses and the currently anticipated measures for mitigating those effects. That the university's task will be more difficult if it must consider less-than-definite future plans does not exempt it from CEQA's requirements.
The court rules that CEQA requires both mitigation measures and project alternatives to be discussed in an EIR. The university's argument that no discussion of alternatives was required is contrary to CEQA's express terms and to the overwhelming weight of judicial precedent. Numerous sections of CEQA, as well as its implementing administrative guidelines, refer to the identification of alternatives. The university's reliance on § 21002 of the Public Resources Code, which provides that public agencies should not approve proposed projects if there are "feasible alternatives or feasible mitigation measures" is misplaced, since that section does not address the contents of an EIR. That an agency can approve a project if environmental effects are resolved by mitigation or by alternatives does not mean that the EIR should not discuss both. Moreover, the use of the word "or" in § 21002 cannot be viewed in isolation, given the statute's [19 ELR 20428] clear preference for consideration of alternatives. The court holds that the discussion of alternatives in the EIR was inadequate. The university simply referred to other locations, with no discussion of size or available space, and dismissed them out of hand. The entire discussion received 1 1/2 pages in an EIR of 250 pages. Even if the university's conclusion that there are no other feasible alternatives is correct, it must provide analysis sufficient to allow informed decisionmaking. The university's belief that it was already fully informed as to the availability of feasible alternatives misses the critical point that CEQA requires the public to be equally informed. Moreover, it is not the duty of challengers to the project to identify alternatives to the proposed site. The court notes that when redoing the EIR, the university's analysis will be subject to a rule of reason.
The court holds that, taken as a whole, there is substantial evidence in the EIR to support the university's finding that the potential environmental effects of the project as currently formulated will be mitigated. Several studies at the facility's original location indicate that research activities have not resulted in statistically significant increases in toxic substance releases, and the university's investigation turned up no evidence that the type of expected air emissions have ever been identified as health hazards. The emissions in question are not subject to any regulation, and the university has committed to perform periodic monitoring of ambient air quality at the new facility. The EIR deals at length with the potential effects of increased traffic and parking problems, explains proposed noise mitigation measures, and demonstrates a commitment on the part of the university to comply with environmentally sound practices with respect to the handling of radioactive materials. The court holds that the university may continue its present activities at the new facility pending certification of an adequate EIR, since there is no evidence of adverse environmental effects as a result of current activities and the cost to the university of an injunction would be significant. Finally, the court holds that the court of appeal properly remanded the case to the trial court for the limited purpose of determining plaintiff's attorneys fees. California Code of Civil Procedure § 1021.5 does not require that the appeals court remand for the trial court to determine in the first instance whether plaintiff is entitled to fees. That the normal procedure when a judgment is reversed on appeal is to remand the fee question does not make it mandatory, and the decision as to which court is better equipped to make the initial determination is within the court of appeal's discretion.
Counsel for Plaintiff
Kathryn R. Divincenzi
Moody & Hill
3rd Fl., 214 Grant Ave., San Francisco CA 94108
Counsel for Defendant
James E. Holst, Karl E. Droese Jr.
Office of General Counsel, University of California
590 University Hall, Berkeley CA 94720