City of Newport Beach v. County of Orange

Nos. 35-31-01, -97-63 (Cal. Super. Ct. January 5, 1982)

The court holds that an environmental impact report (EIR) prepared for a proposed expansion of the John Wayne Airport in Orange County, California fails to comply with the California Environmental Quality Act (CEQA). If finds the EIR's project description inadequate as failing to encompass the full scope of the proposed action. It also faults the EIR for failing to discuss a "no project" alternative, and other specific alternatives to the airport's expansion. The alternatives of restricting or terminating use of the airport are not unreasonable since most of the affected residential area was established before the airport was used commercially. In addition, the court finds that the EIR lacks an adequate discussion of the project's environmental effects, including cumulative impacts when future expansionsare considered, growth-inducing impacts, noise and air quality effects of alternatives, air safety implications of noise abatement departure procedures, and impacts on automobile traffic in the vicinity. Finally, the court rules that comments and responses thereto do not suffice to remedy defects in the original EIR and that documents incorporated by reference in the EIR must be summarized or available in a public repository. It enjoins implementation of the airport expansion plans pending completion of an adequate EIR.

Counsel for Plaintiff
John J. Kelly
Luebben, Hughes & Kelly
805 Tijeras NW, Albuquerque NM 87102
(505) 842-6123

Pierce O'Donnell
Hufstedler, Miller, Carlson & Beardsley
Suite 2220, Crocker Bank Plaza, 611 W. 6th St., Los Angeles CA 90017
(213) 626-0537

Counsel for Defendant
Michael Scott Gatzke
Eckmann, Lodge & Gatzke
P.O. Box 1636, Carlsbad CA 92008
(714) 729-2304

Counsel for Intervenor Stop Polluting Our Newport
E. Clement Shute
Shute, Mihaly & Weinberger
396 Hayes St., San Francisco CA 94102
(415) 552-7272

[12 ELR 20378]

Sumner, J.:

Memorandum of Intended Decision

Under the Constitution of California, Counties are subdivisions of the State. Acting in its role as the supreme legislative body of this State, the Legislature may enact laws that dictate what Boards of Supervisors must consider before they authorize the building or expansion of public airports. One of the requirements that the Legislature has enacted is that an Environmental Impact Report must be prepared and circulated before a project like the John Wayne Airport Master Plan can be adopted.

Since the passage of the California Environmental Quality Act, a number of cases and statutory amendments have defined and clarified what must be in an Nvironmental Impact Report for it to be legally sufficient. If there is a challenge to the legal sufficiency, the Courts of California have been given the task of deciding the question. The role of the Court is not to pass on the wisdom of the Suprervisors' decision, but only to decide if the law has been followed. Therefore, the question before this Court is whether the Environmental Impact Report that was prepared for the expansion of the John Wayne Airport and adopted by the Orange County Board of Supervisors on February 18, 1981, was legally sufficient. This Court finds that the Environmental Impact Report was not legally sufficient.

1. The project description was not sufficient. In commenting on the necessity for a sufficient project description, the Court of Appeals for this District stated "Only through an accurate view of the project may affected outsiders and public decision-makers balance the proposal's benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal . . . and weigh other alternatives in the balance." Santiago County Water District v. County of Orange, 118 C.A.3d 818, 830 (1981).

The proposed expansion of the John Wayne Airport is huge. Most of the facilities at the airport would be increased in size and capacity by a factor of at least three with the terminal itself being enlarged more than nine times. To meet the requirements of an environmental impact report, a complete description of this monumental undertaking must be prepared in order to alert the public and decision-makers of the enormous consequences that will result from a project that will mark a major change in the use of a facility that as recently as 1967 had no jet air service.

The description of the project contained in the challenged EIR is that it is "conceptual." A reading of the description gives no hint of the vastness of the project that the action by the Board on February 18th would trigger. One gets the impression on reading the report that the project could be modified or changed at a later time to accommodate environmental needs. In reality, the Board action triggered an irreversible change in air service for Orange County, substituting a permanent decision for what has been in the past a policy of vassalation [sic] depending on the make-up of the Board of Supervisors. By this comment, the Court does not criticize the Board for its past decisions, but it is fair to point out that with the physical plant at the airport in its present condition, the Board has had the luxury of being able to change its mind without huge financial losses or repercussions and it has done so. The project description must encompass the entire scope of the anticipated undertaking. In the guidelines, prepared for the benefit of those endeavoring to write Environmental Impact Reports, "project" is defined as "the whole of an action which has a potential for resulting in a physical change in the environment directly or ultimately." This involves more than a "concept." To define the project as a "concept" when in fact it is one of the largest undertakings ever contemplated by the County of Orange is a misleading description.

2.The discussion of alternatives to the proposed project is insufficient and incomplete. The Environmental Quality Act requires that "alternatives" be discussed in an EIR. The guidelines spell out what this means. This section is one of the most important because it affords that public and the decision-makers the opportunity to consider different courses of action that might minimize adverse environmental impacts.In this Court's opinion, the most glowing deficiency in the report submitted to the Board of Supervisors was the failure to consider alternatives to the project. There was mention of other airport facilities, but only in the context of their use to meet the demand that the proposed project could not service: "Projections have been made elsewhere in this report of the anticipated increase in demand for commercial air carrier and general aviation services in Orange County. To the degree that OCA operations and facilities are not expanded to accommodate this increase, other airport facilities will have to satisfy this demand. A number of sites, including existing airports, have been suggested in recent years as possible locations where such demand might be satisfied." EIR 102, pg. 8-1.

The evidence from all sides and sources establishes that the demand for services cannot be met even by the proposed more than three-fold expansion of JWA. In spite of a 735 foot lengthening of the runway and a 900 percent increase in the size of the terminal, the facility would meet less than one-third of the projected demand. If there are alternatives, they must be presented and discussed. If there are no alternatives, this must be stated and discussed.

In addition to specific alternatives, the EIR must contain a [12 ELR 20379] "no project" alternative. It also must include the alternatives of termination of jet use of the airport, private or commercial, and a restriction or termination of general aviation use. The history of JWA shows that, unlike other airports in Southern California, most of the effected [sic] residential area was in place before the airport was used commercially. As late as 1961, the Orange County Board of Supervisors had a policy of "light aircraft only, no large type aircraft, no heavy commercial operations." (Exhibit 24) By that date, most of the areas impacted by the airport were built. For this reason, the discussion and consideration of such an alternative is not unreasonable. The report must also address the alternative of termination of commercial use of the airport except for commuter connections to other airports and even consider the alternative of closing down the airport entirely.

In considering alternatives to the project, the concept of a regional airport somewhere in the basin could, of course, be considered. However, this Court is aware that the legal requirement for consideration of alternatives is only to the proposed project. In other words, a regional airport would be much larger than the proposed JWA expansion. However, the development of a regional airport might be inhibited by the expenditure of funds to expand John Wayne Airport. This fact substantiates the contention that the appointment of the "Blue Ribbon Committee" to consider alternative sites should have proceeded [sic] rather than followed the consideration of the JWA expansion, not because the two facilities are similar or identical but because the use of public funds in the amount of at least $80,000,000 might impair the ability of the County to participate in or promote the building of an alternative that would satisfy all of the projected needs for Orange County. The projected needs for the County are at least 18.2 MAP (million annual passengers) by the year 2000. The proposed expansion of John Wayne Airport would accommodate only 6.1 MAP, leaving an unsatisfied demand of 12 million people whose needs would have to be met either by a further expansion of John Wayne Airport or use of another facility.

3. The EIR is insufficient because of its failure to consider the environmental effects of the project that are "individually limited but cumulatively considerable." This legal requirement refers to two parts of a project that have individual effects, but which, when considered together, are equal to a sum greater than the total of the two. There is no discussion of cumulative impacts. An example of what could be a cumulative effect is the estimate that by the year 2000 demand for commercial air services will reach 18.2 million annual passengers yet the proposed project will service only 6.1 million annual passengers. Clearly there will be additional pressure for a further expansion of the airport. However, will the proposed expansion delay the impact of the demand until another crisis is reached? In light of the County's inability to curb present or past demand for increased airport usage, how will the County react to this future pressure? Another example is the relationship between the proposed expansion and the recent deregulation of airlines by the Federal Government.Once the present airport is expanded, will the County be able to control it or will the expansion really result in the airport passing out of the control of local authority and into the area of federal regulation? The Department of Transportation Division of Aeronautics for the State of California advised the County that its proposed EIR should address this very subject. This Court agrees.

4. The required discussion of growth inducing impacts is insufficient. A total of three pages are devoted to this subject in the EIR considered by the Board, however, the coverage is really a report on the probability and character of businesses that will locate near the expanded airport rather than a report on what the effects will be on the environment.

5. The section of the EIR dealing with noise is adequate so far as it goes but it fails to deal with the question of alternatives and ways in which noise effects can be reduced or virtually eliminated by adoption of an alternative. In other words, if the alternative of a reduction or elimination of commercial or any jet air service is discussed, the obvious effect would be to virtually eliminate the admittedly undesirable noise problem. From the standpoint of the benefits to be gained by the choice of alternatives, elimination of noise should be considered as a positive factor on the side of reduced use of the airport. This reduced use would in turn cause other factors to come into play which the decision-maker and the public may wish to consider, namely, increase or decrease in property values, effects on businesses near the airport, enhancement of environment, etc.

6. The same finding is made concerning the section of the EIR dealing with air quality. The air quality effects of alternatives must be considered. This means that the EIR must discuss the effect on air quality of a reduced or changed use of the airport as compared to the proposed expansion. How can the decision-maker decide what is best in the long run without knowing the facts as nearly as can be ascertained before the decision is made?

7. The EIR is insufficient because of the failure to discuss the air safety implications of the unconventional noise abatement departure procedures such as the 500 foot power cutback.This subject should have been included in the Environmental Impact Report to give the decision-makers and the public an opportunity to evaluate a noise abatement procedure that might result in an unusual hazard for those living in the residential area off the end of the runway.

8. One of the major failures of the Environmental Impact Report is its insufficient discussion of the impact of the proposed new airport on automobile traffic in the vicinity. The evidence at trial showed that the principle use of the airport coincided with peak hours for automobile traffic. The EIR does present information on the average daily traffic utilization, but does not address the real problem that occurs during peak hours. If the peak hours for airport utilization were changed, the result would be noise impact in hours hitherto determined to be unacceptable. This dilemma must be discussed. In addition, commercial and residential areas, many intersections removed from the airport will be profoundly affected by the increased traffic. This must be discussed so that the public and the decision-makers will have a full appreciation of the impact of the project before it is authorized and built.

9. During the hearing there was a question raised as to the role of the comment and response portions of an EIR. The question presented to the Court was whether a response to a comment or a comment itself could cure a defect in the original EIR. It is this Court's ruling that the response and comments cannot cure a defect and that responses to comments must be as complete as the proponents of the project can make them. The Court finds that the responses to comments concerning air quality and traffic are inadequate.

During the trial, a question arose as to the proper procedure for incorporating documents in an Environmental Impact Report by reference. The Court rules that an Environmental Impact Report may cite other documents, but where it does not summarize the contents or refer the reader to the location of a public repository where the document may be found, the incorporation by reference is ineffective.

Because of the insufficiency of the Environmental Impact Report, judgment is entered for the plaintiffs and an injunction shall issue forthwith restraining the defendants from taking any further action to implement the Master or ANCLUC Plans until they prepare, circulate, consider and certify an adequate EIR in full compliance with the California Environmental Quality Act and Guidelines. As requested by the plaintiffs, this Court does not ban the use of the DC-9 80's at John Wayne Airport, however, pending full compliance, the Court does enjoin any increase of the current 41 average daily commercial departures from John Wayne Airport.