(July 7, 2004) 04 C.D.O.S. 6060

By Maria Pracher


In 2002, the Town of Apple Valley approved a project allowing the construction of a 1.2 million square foot distribution center with related outbuildings on a 300 acre site. The City Council certified an EIR for the project, adopted findings, and adopted a statement of overriding considerations for seven significant unavoidable environmental impacts. Neither the EIR nor the various public notices issued in connection with the EIR and the public hearings on the project revealed that Wal-Mart would be the project’s end user.

Maintain Our Desert Environment (“MODE”) filed this action challenging the Town’s certification of the EIR The Attorney General filed an Amicus Curiae on behalf of MODE. Following the trial court’s denial of the writ, MODE filed this appeal. This case raises procedural issues concerning a petitioner’s obligations under CEQA to exhaust administrative remedies and substantive issues regarding the adequacy of the EIR, including whether the project description must identify the end user.

A. Exhaustion of Administrative Remedies

1. Does an association formed after project approval have standing to seek a writ?

Even though MODE was formed after the project was approved, several of its members participated in the public hearings on the project and objected to the project. CEQA provides that an organization formed after the approval of a project may maintain an action against a public agency for noncompliance with CEQA if a member of the organization objected to the project during the public review and hearing process. (Pub. Res. Code § 21177.) Thus, the court concluded the plaintiff had met its exhaustion duty as specifically authorized under CEQA.

2. On what grounds may MODE challenge the EIR?

CEQA challenges are limited to those grounds raised by any party during the administrative process. (Pub. Res. Code § 21177(a).) MODE argued that this case falls within an exception to this general rule, because the Town failed to provide adequate notice under CEQA. (Pub. Res. Code § 21177(e).) MODE claimed that the Town’s notices were deficient because, among other reasons, it failed to identify Wal-Mart as the end user.

CEQA calls for the notice to include a “brief description of the proposed project and its location.” (Pub. Res. Code § 21092(b)(1),) The court interpreted this language to mean “the project description contained in the public notice need not be as extensive as the description in the EIR itself, but need only be a brief, compact summary without elaboration or detail.” Given the purpose of this notice to alert the public that it may review and comment on the project’s environmental impacts, the notice was not required to identify the project’s end user. Consequently, MODE could not be excused from exhausting its administrative remedies and must limit its appeal to those issues properly raised in public comments.

Comments that satisfy the exhaustion requirement must do more than generally object to a project. An issue is adequately raised if it fairly apprises the lead agency of facts or conclusions that can be responded to in the context of the agency’s compliance with CEQA. The court determined that MODE was barred from pursuing a number of issues included in its writ petition, because these issues were not raised at the administrative level. The issues the court determined were properly raised are discussed below.

B. Adequacy of the EIR’s Technical Sections

1. Was the traffic analysis adequate?

MODE argued that the EIR’s traffic analysis was inadequate in several ways. The court rejected all of MODE’s arguments and found the traffic analysis complied with CEQA. First, the court upheld the EIR’s reliance on trip generation rates based on a traffic study prepared for a similar facility rather than on Institute of Transportation Engineers figures. Second, the court found that the EIR adequately considered the project’s total daily truck trips, because the total could be deduced from the information in the EIR and was included in the appendix. Third, although the project would cause the level of service to deteriorate at several intersections, the standard of significance would not be exceeded at these intersections.

Thus, the EIR correctly determined that the reduction in the level of service did not amount to a significant impact. Fourth, a mitigation measure requiring the Town to monitor an intersection for signal warrants was sufficient, because it could be reasonably concluded that the Town will install the signals when the warrants are met. Finally, the EIR was adequate even though it did not require defined mitigation for a potential future road project. Given the uncertainty about the road project and its design, it was not practical to determine the precise mitigation at the time of project approval.

2. Was the land use analysis adequate?

The court found the EIR’s consideration of land use impacts adequate. The EIR contained a list of the Town’s land use policies and goals, analyzed the project’s effect on these policies and goals, and required mitigation measures for the significant effects. The EIR recognized that the project would have an unavoidable significant cumulative land use impact. The Town properly adopted a statement of overriding considerations documenting the project benefits (i.e., catalyst to planned development, provisions of jobs, wage benefits, and jobs/housing ratio improvement) that outweighed the unavoidable impact.

3. Was the noise analysis adequate?

The court found the EIR contained adequate information to justify a finding that no mitigation was reasonable or feasible to control certain roadway noise impacts to several homes. The Town properly concluded that the project’s benefits outweighed this unavoidable impact.

4. Was the mitigation for the Mojave ground squirrel adequate?

The court found the EIR provided adequate mitigation for the Mojave ground squirrel by requiring compliance with the California Department of Fish and Game guidelines and permit process.

5. Was the air quality analysis adequate?

The court dismissed MODE’s complaints that the air quality analysis relied on trip generation numbers that did not match the numbers used in the traffic analysis. Although acknowledging some discrepancies in the numbers, the court concluded these discrepancies were not great and could not support a finding that the Town acted unreasonably in relying on the information. The court also determined the EIR’s analysis of NOx emissions was adequate in that it examined whether project emissions would exceed the threshold of significance and discussed the potential local and cumulative impacts. The Town properly recognized the project’s unavoidable significant air quality impacts and adopted a statement of overriding considerations.

C. Adequacy of the Project Description

After recognizing the importance of an accurate project description to the sufficiency of an EIR, the court rejected the notion that the identity of the end user is a required element of an accurate project description. Projects are often developed without any knowledge of the end user. Requiring this information would be impractical and would result in an interpretation without support in CEQA or the CEQA Guidelines.

The court emphasized that CEQA is concerned with environmental consequences. Disclosure of the end user identity depends on the ability to “demonstrate that the identity implicates potential physical environmental impacts. Information that has no bearing upon the physical environment has no business in an EIR.” Speculation, social and economic concerns unrelated to a significant physical impact, and public controversy absent a factually supported environmental impact do not implicate CEQA and cannot form the basis for a finding that the failure to identify the end user rendered the EIR legally inadequate.

Speculation about increased public scrutiny and opposition that may have resulted if the end user had been known failed to impress the court:

In essence the argument merely forwards the position that CEQA cares whether the public would be more likely to agree with Town’s approval of an otherwise identical project if it were to be operated by a competitor as opposed to Wal-Mart. The crux of the issue is that the project itself, and therefore its environmental impact, is identical regardless of who will operate it. The only possible reasons for the public to object to accepting Wal-Mart but not a competitor under these circumstances have nothing whatsoever to do with the aims and purposes of CEQA.

MODE claimed the end user identity was necessary because Wal Mart’s delivery policy would cause congestion impacts. The court, however, found no supporting evidence in the record. Rejecting claims that knowledge of the end user would allow the public to double-check the traffic data, the court observed that the public could have investigated the project proponent and discovered it as the real estate division of Wal-Mart. The court characterized claims that Wal-Mart has a history of past environmental abuses as unsupported theory, conjecture, and innuendo insufficient to find the EIR inadequate. The court also was not persuaded by the argument that the end user’s financial capability influences the feasibility of mitigation measures and alternatives. The court observed “if the project can be economically successful with mitigations, then CEQA requires that mitigation, regardless of the proponent’s financial status.”

For more information please contact Maria Pracher. Maria Pracher is special counsel in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco office.