In E. Oakland Stadium Alliance v. City of Oakland (Mar. 30, 2023, No. A166221) ___Cal.App.5th___ [2023 Cal. App. LEXIS 240], the First District Court of Appeal concluded that the EIR prepared for the proposed Oakland A’s stadium was largely satisfactory, but on a single point failed to adequately mitigate wind impacts.
The Oakland Waterfront Ballpark Project (Project) proposed a 50-acre development at Howard Terminal within the Port of Oakland (Port). The Project proposed not only a new ballpark for the Oakland A’s, but also 3,000 residential units, retail and commercial spaces, a performance venue, and a hotel, all with associated parking. A draft EIR was completed in February 2021, and final EIR certified by the City of Oakland (City) one year later.
East Oakland Stadium Alliance (Petitioners) filed a lawsuit challenging the EIR. The trial court rejected their claims, except with respect to the adequacy of a wind mitigation measure. Petitioners appealed the bulk of those rulings and the City cross-appealed as to the wind issue.
On appeal, Petitioners argued that the EIR’s plan for safeguarding ballpark visitors from rail traffic was infeasible and ineffective. The site was bordered by unusual public street, at-grade railroad crossings. Passenger and freight trains operate within the same right-of-way with cars, bicycles, and pedestrians. To address safety and access concerns, the EIR contained a series of mitigation measures, including construction overcrossings and a fence to accommodate a multi-use path on railroad property separating the freight line from vehicle traffic for a three-block stretch. Nonetheless, the EIR found significant and unavoidable impacts due to safety hazards.
Petitioners argued that the multi-use path was infeasible because the railroad had told the City that no part of its right of way could be used for the Project. However, the Court upheld the measure, finding the mitigation to be the fence itself, not the path. Because the path did not contribute to the mitigation, but was merely an envisioned amenity, its potential infeasibility did not affect the mitigation measure.
Petitioners also contended that public comments criticizing the location of an overcrossing and the analysis supporting its design were substantial evidence demonstrating that the overcrossing would be ineffective. However, the Court found this to misstate the substantial evidence standard of review, which evaluates the sufficiency of evidence supporting the EIR, not the evidence supporting Petitioners’ critique. It further upheld the evidence supporting placement of the overcrossing, noting that no preferable alternative placement was identified by Petitioners.
Finally, Petitioners argued that the EIR should have considered temporary closure of certain intersections during ballpark events to mitigate railroad hazards. As to this claim, the Court found that no party adequately presented the issue to the agency, and therefore that the argument was barred by the failure to exhaust administrative remedies. While a commenter had suggested “temporarily or permanently” closing at-grade crossings, the Court held that the single passing mention of temporary closings was insufficient to “fairly apprise” the agency of the proposal to temporarily close intersections, as CEQA requires.
Displacement of Existing Activities
The Project as proposed would displace all current activities at the 50-acre Howard Terminal. The EIR’s air quality analysis assumed that overnight truck parking would relocate to nearby lots. Petitioners alleged that this was not supported by substantial evidence. While an EIR need not evaluate economic impacts themselves, the EIR did need to make reasonable assumptions about relocation to evaluate the associated potential environmental impacts. The EIR’s conclusion was based on a 2020 Seaport Forecast, studying truck parking needs through 2050. While some comments raised concerns about the continued accuracy of those findings, the Court found the forecast to be reasonable and provide the necessary substantial evidence supporting the EIR’s assumption.
Petitioners also argued that the EIR’s air quality analysis improperly disregarded the displacement of current Howard Terminal parking tenants to outside the Port. The EIR had concluded that attempting to analyze such relocation would be speculative. The Court found no error in failing to analyze the displacement in the evaluation of localized health risks from toxic air contaminants, as any diversion would only reduce those risks.
With respect to basin-wide pollutant emissions, the EIR did not subtract the relocated emissions because they would still have occurred in that area, even if not within the Port itself. Further, it did not consider any additional emissions resulting from the relocation because it was unknown where else the tenants would relocate to. Petitioners argued that the EIR should have considered that truckers might generate greater emissions by traveling longer distances. However, the EIR found a lack of reliable information on where they would relocate. Particularly given the availability of alternative parking within the Port, the Court upheld the EIR’s conclusion that there was no reliable method to determine the location or amount of parking that would relocate outside of the Port.
Air Quality Analysis
Petitioners also argued that the EIR’s analysis of air quality impacts from emergency generators was insufficient. The EIR assumed 17 generators, each running for 50 hours per year – the maximum allowed by the air district for testing and maintenance. It also included a mitigation measure restricting annual testing and maintenance to only 20 hours per year. A commenter had contended, and Petitioners argued, that the EIR should have assumed 150 hours of operation, based on an air district policy document presuming 100 hours of annual use in addition to the testing and maintenance time.
The Court disagreed. It cited case law stating that CEQA does not require an agency to assume an unlikely worst-case scenario. While this did not allow the agency to disregard generator use merely because it would occur at unpredictable times, the Court found that it had not been disregarded in this instance. The EIR acknowledged the foreseeability of power shutoffs in high fire risk areas, and further, the 50-hour assumption included an ample 30-hour cushion for annual operation as a practical matter.
The EIR’s sole GHG mitigation measure (GHG-1) prohibited the City from approving any construction-related permit unless the Oakland A’s retained a qualified air quality consultant to develop a Project-wide GHG reduction plan specifying GHG reduction measures sufficient to satisfy the City’s no-net-increase threshold of significance. GHG-1 described “in detail” the contents of the required emissions reduction plan, establishing performance standards for its methodology and substantive reduction measures. Petitioners argued that this improperly deferred the mitigation.
Where it is impractical or infeasible to develop mitigation details at the time of environmental review, CEQA allows them to be deferred. However, the agency must commit itself to the mitigation, adopt adequate performance standards, and identify the types of actions that will be considered and potentially incorporated to feasibly achieve those standards. Here, the Court found GHG-1 to satisfy these requirements.
The measure committed the City to the mitigation by prohibiting issuance of permits until the plan was in place. It also adopted a clear performance standard – no net additional GHG emissions above those generated by current activities of the Oakland A’s, which were described in detail and quantified. Lastly, GHG-1 identified a series of measures that were required to be adopted, and another list of further reduction measures to be included as necessary to achieve the performance standard.
The Court declined Petitioner’s invitation to construe prior case law as holding that all mitigation measures finalized after project approval are invalid. Further, it observed that the CEQA Guidelines had since been updated to expressly allow for deferral where it meets the above standards. The Court also disagreed with Petitioners’ assertion that no net increase can never be an acceptable performance standards. It found GHG-1 to be a good-faith effort to ensure no increase in GHG emissions while coping with uncertainties – markedly different from “half-hearted” mitigation found to be lacking in prior cases.
The EIR recognized that Howard Terminal had a long history of industrial use, as well as associated contamination and cleanup activities. In discussing these issues it relied on a 2019 site investigation evaluating what potential exposure and human health risks associated with the site would be absent mitigation. The associated health risk assessment (HRA) identified target cleanup levels to guide remediation. A mitigation measure required the Department of Toxic Substances Control (DTSC) to approve a completed remedial action plan (RAP) based on the HRA.
Petitioners argued that the EIR’s analysis was inadequate for failure to discuss separately the impact of removing a concrete cap preventing escape of soil contaminants. However, the Court found the EIR to fully recognize the importance of the cap, and concluded that there was “no basis” for finding the EIR inadequate in this respect.
Petitioners also argued that the EIR failed to discuss hydrocarbon oxidation products (HOPs) – chemicals resulting from degradation of hydrocarbons in soil. The EIR noted that HOPs had been detected nearby. A commenter faulted the EIR for failing to further consider the presence of HOPs, citing a 2018 report prepared in connection with ongoing remediation indicating that they should be analyzed during future sampling events. The City responded in the final EIR that HOPs were evaluated as part of the discussion of total petroleum hydrocarbons (TPH) associated with gasoline and other products. The Court found the 2018 report relied on by Petitioners to support the City’s view that HOPs were evaluated in the TPH analysis, and thus, the EIR had not failed to disclose their presence.
While the Court found this to be a separate question from whether HOPs are sufficiently distinct from TPH to warrant separate analysis, it also found little to suggest such distinctiveness. The Court also noted that DTSC had also not required separate reporting of HOPs, further supporting the City’s position. The Court found no inadequacy, and for the same reasons, rejected Petitioner’s argument that the HRA was outdated because it predated recognition of HOPs as requiring separate consideration from TPH.
After the final EIR was issued the draft RAP was released. Initially, the EIR expected that a remedial action workplan (RAW) – a less comprehensive remediation document – would be prepared, but the Oakland A’s elected to prepare a RAP instead. As such, Petitioners argued that the EIR should have been recirculated to disclose and discuss the RAP’s proposed remedial measures.
The Court disagreed with Petitioners, finding that they had provided no authority to suggest that recirculation was triggered by a private party’s preparation of a draft plan required by the EIR’s mitigation measure . While the decision to use a RAP was not disclosed in the final EIR, the release of the RAP had not yet then occurred. The Court also noted that approval of the RAP would be required under its own statutory scheme, and thus that there was no chance the remediation would evade public scrutiny. Further, the Court found that substantial evidence supported the City’s decision not to recirculate. The draft RAP added no substantive new information to the EIR, nor did it identify or disclose new or increased significant impacts.
Petitioners also argued that the mitigation measures requiring the RAP and associated plans improperly deferred the mitigation. However, the Court found there to be “little question” that they satisfied CEQA’s requirements to properly defer mitigation. The EIR detailed performance standards, a range of remediation options that would be taken, and established that the measures would be enforceable.
Alternative 3 in the EIR evaluated construction of an overpass as part of the Project. While Petitioners argued that the EIR had not adequately evaluated the alternative’s environmental impacts, the City maintained that this claim too was not exhausted in the administrative process. Petitioners contended that their challenge was to the CEQA findings, issued after the public comment period, and therefore no exhaustion was required.
The Court disagreed. Even assuming that a challenge to findings would be exempt from CEQA’s exhaustion requirements, the Court found Petitioner’s argument to not be a genuine challenge to those findings. To hold otherwise would allow any challenge to the adequacy of an EIR to evade exhaustion requirements simply by being framed as an attack on the findings and circumventing CEQA’s procedural requirements. As such, the Court held that Petitioner’s failed to exhaust on this issue as well.
Petitioners additionally argued that the EIR’s cumulative impacts analysis improperly excluded consideration of the impact of using a portion of the Project site to expand the Port’s turning basin for large vessels, as would be permitted at the Port’s election. While an agreement memorializing the arrangement was negotiated at the time of the draft EIR, a feasibility study of the expansion was still being undertaken. In part because the expansion would be analyzed as a separate project should it be proposed in the future, the EIR did not consider it to be a probable future project requiring inclusion in the cumulative impact analysis. The Court upheld this conclusion. It found that it would be implausible to deem the expansion “probable” before there was an official determination that it was even feasible.
The trial court ruled in Petitioners’ favor on one issue – that the EIR improperly deferred mitigation of wind impacts. The City cross-appealed that ruling, but the Court affirmed on this as well.
A wind tunnel study had been prepared for the CEQA document, and suggested that the Project could create winds exceeding 36 mph for 100 to 150 hours annually. While a number of design and landscaping modifications that could reduce the impacts were identified, the EIR found that it could not conclude with certainty that all wind hazards would be mitigated. As such, it found the impacts to be significant and unavoidable.
The adopted wind mitigation measure required wind tunnel analyses for each proposed building exceeding 100 feet in height. If the building’s design was found to cause significant wind impacts then additional mitigation would be required. However, mitigation was only required to the maximum extent feasible “without unduly restricting development potential.” The Court found the measure to be too imprecise to constitute an adequate performance standard. While it assumed a balance between environmental impacts and commercial functionality could be struck, it held that the mitigation was required to disclose where that balance had been struck. “Unless the performance standard is expressed in reasonably clear, objective terms, the interested parties cannot know how the mitigation measure should be interpreted and applied.”
The Court also found that the mitigation failed to identify the types of potential actions that would be included in the deferred mitigation. While it indicated three possible design changes in a parenthetical, it did not address whether more significant changes to building size or location might be considered, or alternatively, why the more substantial changes would be infeasible.
While the City relied on the measure’s introductory language articulating a goal of reducing wind effects to the extent feasible, the Court found that the goal could not be relied upon as an alternative performance standard. Nor did it agree with the City’s argument that uncertainty about whether full mitigation could be achieved made it unnecessary to adopt a performance standard.
The case marks the latest in a recent string of published CEQA opinions where petitioners appeared to “throw spaghetti at the wall to see what sticks” – raising a great many claims and prevailing on one or two. (See Downey Brand’s coverage of Save Our Capitol! v. Department of General Services (Save Our Capitol!) and League to Save Lake Tahoe Mt. Area Pres. Found. v. County of Placer.) The cases should be viewed as cautionary tales to agencies, consultants, and attorneys seeking to craft defensible CEQA documents. The details matter, and with a project facing staunch, well-funded opposition, one should assume that any potential defect will be aggressively litigated.
The case also serves as another data point in evaluating the judiciary’s success implementing litigation streamlining under CEQA. Like Environmental Leadership Development Projects and the Capitol annex project at issue in Save Our Capitol!, the Oakland ballpark project received legislation requiring courts to resolve any CEQA challenge within 270 days at each level, to the extent feasible. (See Downey Brand’s coverage of litigation over the Project’s eligibility at Pacific Merchant Shipping Association v. Newsom.) Here, the trial court reached a decision just 170 days after the case was filed, and the Court of Appeal issued this opinion 178 days after the appeal was filed. While some of the trial court proceedings subsequently consolidated in Save Our Capitol! took somewhat longer, the appeal was still resolved not much more than a year after the first case was filed in the trial court. CEQA cases often take years to reach a decision on appeal, which itself can be ruinous to time-sensitive projects. Unscrupulous challengers can and do leverage this fact in mounting their opposition. The judiciary deserves commendation for achieving the legislative timelines in these cases, as it can matter a great deal. Time will tell whether CEQA litigation streamlining remains a benefit reserved to sports arenas and mega-projects, or if the legislature extends it to other classes of favored development, such as housing.
- In reviewing the sufficiency of an EIR, a court determines whether the analysis is supported by substantial evidence. When it is, the EIR is adequate, even if the petitioner’s arguments to the contrary are also supported by substantial evidence.
- Exhaustion under CEQA requires the exact issue being litigated to have been raised in administrative proceedings, fairly apprising the agency of the claims.
- CEQA permits deferral of mitigation, but only when necessary, and where the agency develops specific performance standards, discloses the types of mitigation that might be utilized, and commits itself to the mitigation.
- Additional information about project impacts does not require recirculation of an EIR unless it shows additional or more severe significant impacts not previously disclosed.
- Agencies should consider whether projects under review warrant wind impact analyses – something that has not traditionally been included in most CEQA documents but is sure to be raised by project opponents given the outcome of this case.