Failure to Include A No-Build Analysis in Project Description Does Not Violate CEQA
In the belatedly-published Environmental Council of Sacramento, et al. v. County of Sacramento (Cordova Hills, LLC, et al. – Real Parties-in-Interest) (2020) ____ Cal.App.5th ____, the Third District Court of Appeal affirmed judgment against a slew of California Environmental Quality Act (“CEQA”) claims centered on Environmental Council’s and Sierra Club’s (collectively, “Environmental Council” or “petitioners”) contention that the project at issue included a component – a university – that is ultimately not likely to be built. More specifically, petitioners contended that because the university was not likely to be built, the environmental impact report (“EIR”) prepared pursuant to CEQA was therefore insufficient for failing to analyze the project without the university and thereby understated project impacts to things such as air quality, climate change and transportation.
In its ruling, the Court upheld approvals for a large master-planned community on an undeveloped 2,669-acre site in southeastern Sacramento County that includes office, retail, a university campus, schools, parks and trails uses, and provides for construction of 8,000 residential units. The crux of the ruling identified the sort of evidence required to comply with CEQA’s mandate that an EIR be prepared with a sufficient degree of analysis in order to provide decisionmakers with enough information to enable them to reach determinations taking environmental consequences into account. Upon reasoning the project description was solid and well-substantiated, the Court easily found all contested impacts had been properly analyzed.
The Court reiterated the general principle that an EIR’s project description should accurately discuss reasonably foreseeable activities that are the consequence of project approval, while addressing environmental effects of future action, if there is credible and substantial evidence that it is a reasonably foreseeable consequence of the project, and the future action will be significant in that it will likely change the scope and nature of the project and its environmental effects. In lieu of these factors, it is well-established that CEQA does not require an EIR to consider future developments which are unspecified or uncertain.
Relying largely on prior case law, the Court soundly rejected petitioners’ contentions, finding they failed to present credible and substantial evidence that the project description was legally inadequate because development of a university was an illusory and speculative project element included only to minimize environmental effects. Instead, the Court found the difficulties related to establishing a university onsite were taken into account and analyzed.
In this opinion, the Court highlighted that the EIR assumed all phases of the Cordova Hills specific planning area project would be built, including the future unidentified university on a predetermined 224 acres that would be equipped to handle 6,000 undergraduate and graduate students (with 65% of them living on campus), over 2,000 employees and 1,870,000 square feet of facilities. Additionally, while there was no specific institution under contract to operate the university, the Court found substantial obligations were levied on both the developer and the County in the EIR and other entitlements, including a development agreement with a number of express provisions related to securing a tenant.
For example, should a university tenant not be procured within 30 years, title to the designated land must be transferred to the County. Meanwhile, during this 30-year window, the property owner is required to provide the County with annual updates on its efforts to secure a tenant and is prohibited from seeking a change in land use designation. Further, the property owner is also required to establish a “University Escrow Account” which it would fund with $2,000,000 after each issuance of 1,000, 1,750 and 2,985 building permits. If a university is ultimately constructed, the escrow money will be released to it. But, if a university operator is not secured for the site, the monies will then be released to the County to be used its own efforts to attract a university. Finally, as additional incentive, the project also included an additional $87,000,000 commitment to the university.
After painstakingly walking through the evidence in the record analyzing the project’s university component, the Court also rejected petitioners’ claims that the EIR’s analysis of air quality, climate change, and traffic impacts was erroneous because it purportedly “did not consider the possibility the university would not be built, or might not be built for some time.”
Again, fundamentally relying on prior case law, the key takeaways related to impact analysis under CEQA are as follows:
Petitioners’ contention that the EIR failed to adequately address air quality is undercut by a mitigation measure which requires, first, that all future specific planning area (“SPA”) amendments cannot increase total ozone precursor emissions above what was considered in the approved air quality management plan for the entire Cordova Hills project and shall achieve the original objective of a 35% reduction in total overall project emissions; and, secondly, that if the SPA is ever amended, its changes cannot increase NOX and ROG emissions beyond that 35 percent reduction threshold absent County approval.
Changes to this same mitigation measure, here occurring between the publication of the draft EIR and the final EIR, did not require recirculation because said changes did not constitute significant new information showing a substantial increase in the severity of air emissions impacts. In the event a university is not built within 30 years, the County will be required to reduce the ozone precursor emissions to 20% instead of 35% (with university buildout), while the impacts to air quality would still be deemed significant and unavoidable even as mitigated. Per the Court, “even accepting Petitioners’ recirculation argument as true, it is debatable whether a 15% reduction in mitigation is a substantial increase in the severity of these particular environmental impacts.”
A mitigation measure requiring that all future specific planning area amendments analyze GHG emissions and revise a GHG reduction plan ensuring any change to the project would not cause an exceedance of the 5.80 metric-tons-per-capita project area-wide significance threshold was legally acceptable.
As it related to transportation impacts, the Court found Environmental Council made a number of faulty assumptions. First, petitioners mistakenly assumed that the large non-automotive mode assumed by the EIR for university area trips had more than its actual small impact on overall mode-share in the SPA. Second, petitioners mistakenly assumed a major portion of trip reductions were due to the university, when – instead – they were based on other factors identified (including transit system, Electric Vehicle system, pedestrian and bicycle trails, and proximity to uses). Lastly, Environmental Council ignored the reduction in 9,000 daily trips that would result if the university was not constructed.
While Environmental Council failed to exhaust its administrative remedies, the Court also found petitioners’ argument that the EIR failed to address the project’s consistency with Sacramento Area Council of Government’s Metropolitan Transportation Plan/Sustainable Communities Strategy (“MTP/SCS”) lacked merit. The Court held that nothing in Senate Bill 375, which ensures reductions in vehicle miles traveled and related GHG, requires a CEQA consistency analysis and also emphasized that petitioners failure to cite any evidence to the contrary.
The County was not required to adopt a “phasing” construction schedule as a mitigation measure so as to ensure a university would be constructed. The Court found Environmental Council failed to cite any record evidence that such “phasing” was a feasible mitigation measure or that County’s decision not to phase was unsupported by substantial evidence.
 Opinion was filed January 30, 2020 and ordered published on March 2, 2020.