Aviation and Airport Development Law : Aviation Lawyer & Attorney : Dr. Barbara E. Lichman : Airport Development, Environmental Law

Indeed, the geographic size of rail projects implicates the greater scope of legal applicability. Rail projects, even if, like the current “high speed rail,” limited to within the borders of California, will, of necessity, be recipients of Federal funding. Consequently, Federal environmental statutes, including the National Environmental Policy Act, 42 U.S.C. § 4321, et seq., and the Federal Clean Air Act, 42 U.S.C. § 7501, et seq., apply. Thus, while the California legislature may attenuate the CEQA process, the rail projects will still remain hostage to NEPA.

Finally, even if rail projects could proceed without Federal funding, which they most likely cannot, where they cross state lines, the Interstate Commerce Clause of the United States Constitution is implicated, and Federal law will apply. In short, to attenuate the environmental review process for major transportation projects will require a different legislative template, at a different legislative forum, the United States Congress.
 

It’s fairly obvious that these two Bills drill large holes in CEQA’s blanket of protection of the public from the environmental impacts, both short and long term, of large scale development projects. It’s equally obvious that the Bills were intended to insulate not merely the stadium, but also other specific projects, such as the California High Speed Rail Project, from the usually lengthy CEQA process.

What is less obvious is that the Bills could also “fast-track” every airport improvement and/or expansion project in the State of California. This is because airport improvement projects are extremely costly, often involving reconfiguration of the airfield, including demolition and realignment of runways and taxiways, as well as terminal and parking lot construction. Even a small part of these potential activities could add up to hundreds of millions of dollars. So far so good you may be saying, because that type of major construction adds up to lots of jobs and better transportation.

This is where that nasty law of unintended consequences sneaks in. Along with the “good” of increased employment and capacity comes usually major, and always long term, environmental consequences on large swaths of numerous local communities. Such impacts include increased air pollution, greatly increased noise over the numerous residential communities located around airports, and the ubiquitous traffic impacts on local communities. Unlike the “fast-tracking” of the essentially local stadium project and of surface transportation projects which run in confined, proscribed corridors, airport impacts cover widespread and often unpredictable areas and populations.

It is true that access to the courts has merely been attenuated, not eliminated. But the impact of sending a challenge directly to the Courts of Appeals is draconian. The only path of reconsideration or appeal from a decision of a Court of Appeals is to the California Supreme Court. Because that court only accepts for hearing about 5% of the cases that apply to it, the new legislation effectively gives challengers only one bite at the apple. Thus, the Bills constitute a radical change in a state where Courts of Appeals regularly revised lower court decisions under CEQA.

Finally, and added to the already existing burdens on the Appellate Court system, the 175 day rule (or less than six months) to fully adjudicate a CEQA action further constrains the ability of the Appellate Courts, used to dealing with legal questions, to try what are usually highly fact specific and sometimes scientifically complex environmental issues.

In short, SB292 and AB900 are bad precedent, even if for good reasons. Special interest legislation is never desirable (although frighteningly common), and special interest legislation, the global consequences of which have not been fully considered, is even less desirable. It can only be hoped that environmental groups such as the National Resources Defense Council, which supported both Bills, will be just a quick to aide citizens affected by the legislation to adjust to their new legal reality.
 

Moreover, simply articulating “generalized environmental comments at public hearings . . . [cites omitted]; relatively . . . bland and generalized references to environmental matters . . . [cites omitted]; . . . or isolated and unelaborated comments will not suffice.” Sierra Club v. City of Orange, 163 Cal.App.4th 523, 535-36 (2008). Instead, “the objections must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.” Id. Finally, “the petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level.” Id. at 536.

Two recent California cases illustrate the ways in which two courts apply these strictures to arrive at diametrically opposing decisions. In Citizens for Responsible Equitable Environmental Development v. City of San Diego, 196 Cal.App.4th 515 (May 19, 2011), a citizens group challenged the Environmental Impact Report (“EIR”) for a residential development on the grounds that CEQA’s mandated Water Supply Assessment (“WSA”) was deficient. The court rejected the petitioners’ claim of having exhausted administrative remedies as a “perfunctory or skeleton showing . . .,” Id., at 528, where the petitioners rested their claim on: (1) a DVD submitted to the respondent city containing “thousands of documents,” Id., and (2) an accompanying letter referencing “evidence on water supply,” Id., but not specifically mentioning the word “drought.”

The court also rejected petitioners’ argument that they could rely on a statement by an unaffiliated party made at the public hearing that did reference “drought.” Even though “a petitioner may allege as a ground of noncompliance any objection that was presented by any person or entity during the administrative proceedings,” Id. quoting Bakersfield Citizens for Local Control, supra, 124 Cal.App.4th at 119, the court found that the testimony of a former councilman upon which the petitioners intended to rely was not specific enough, because, while petitioners claimed that the EIR’s analytic deficiencies required recirculation of a Supplemental Environmental Impact Report (“SEIR”), the councilman “never argued an EIR was necessary.” Citizens for Responsible Equitable Environmental Development, supra, 196 Cal.App.4th at 528. NEPA varies materially from CEQA on the issue of the required specificity of comments. Under NEPA, a would-be challenger must have raised the specific issue upon which it wishes to base its challenge during the administrative process.

Just one month later, another Appellate Court decided the issue differently, by relying on a variant of the exhaustion standard. In Santa Clarita Organization for Planning the Environment v. City of Santa Clarita, 197 Cal.App.4th 1042 (June, 2011), the court found that petitioner had adequately “papered the record,” even though the petitioner had not previously, among other lapses, provided explicit examples of the numerous mitigation measures it claimed in its challenge the city should have considered in the EIR’s analysis of the project’s global warming impacts. The court acknowledged that the petitioner had not been as specific as desirable. However, it found, despite some reservations about the petitioners’ alleged naiveté about CEQA’s procedural requirements, Id. at 1051, that “less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding,” Id., quoting Citizens Association for Sensible Development of Bishop Area v. County of Inyo, 172 Cal.App.3d 151, 163 (1985). This was because “[parties] generally are not represented by counsel. To hold such parties to knowledge of the technical rules of evidence and to the penalty of waiver for failure to make a timely and specific objection would be unfair to them.” Citizens Association for Sensible Development of Bishop Area, supra, 172 Cal.App.3d at 163.

In short, courts can make radically disparate decision on the adequacy of exhaustion of administrative remedies, based on similar sets of facts and arguments. The solution is: (1) to engage an experienced attorney who can provide educated counsel concerning the issues in the environmental analysis most vulnerable to challenge; (2) to comment early and often on those and other issues, preferably starting with the Notice of Preparation of the Environmental Impact Report (“NOP”), including comments on the Draft Environmental Impact Report (“DEIR”), which is proforma, and ending only with the last document in the environmental analysis available for review, normally the Final Environmental Impact Report (“FEIR”); and (3) to make comments as technically specific as possible, even if this involves the expenditure for a technical consultant. It is only through those three steps that a would-be petitioner can successfully withstand the “exhaustion of administrative remedies” defense that is all but certain to arise in environmental litigation.
 

This substantial enlargement of the passenger hold room and other accommodations has both capacity enhancing and cumulative impacts. In fact, its obvious purpose is to allow the accommodation of double the number of American Eagle passengers than could have been handled in the previous facility.

Finally, to add injury to insult, the approval of the project without environmental review also skirts around the settlement in City of El Segundo, et al. v. City of Los Angeles, et al., Riverside County Superior Court Case No. RIC426822. The gravamen of that settlement was limitation on capacity defined by number of passengers. Similarly, a “regionalization” provision was included and agreed to for the express purpose of working toward diversion of passengers to other airports. Increasing the size of the American Airlines Commuter Facility clearly increases “capacity” and, thus, is far from the negligible impact properly excused by a categorical exclusion.

In short, LAWA appears to be “piecemealing” the full scope of the redevelopment of LAX. If so, LAWA is in clear contravention of both California law and its contractual obligation under the Settlement Agreement with surrounding communities.
 

The National Environmental Policy Act (NEPA) has similar requirements. NEPA also requires establishment of a baseline against which to compare the impacts of the proposed project. And, as with CEQA, the NEPA baseline usually consists of the pre-project environmental conditions. The Ninth Circuit Court of Appeals considered the baseline issue in American Rivers v. Federal Energy Regulatory Commission, 187 F.3d 1007 (9th Cir. 1999), where it held that use by the Federal Energy Regulatory Commission of existing environmental conditions at a hydroelectric power facility to evaluate a re-licensing proposal was the proper baseline, rather than a “theoretical reconstruction” of what the river basin would have been like if projects had never existed, as argued by several conservation and environmental organizations.

As shown in Communities For a Better Environment and American Rivers, project proponents often confuse “baseline” with the “no-action” alternative. Both CEQA and NEPA require that an EIR/EIS include an analysis of the environmental effects if the project is not approved or implemented, i.e., a “no action” alternative. However, the purpose of the no-action analysis is to compare alternatives, not to establish a baseline. The definition of the no-action alternative will vary depending on the nature of the proposed project. For some projects, the existing environment will not change if the project is not approved, and the no-action alternative and baseline will be the same. For other projects, rejection of the project will not preserve existing environmental conditions, and the no-action alternative will be different from the baseline.

Public agencies preparing environmental documents and agencies, organizations and others reviewing environmental documents should understand this important distinction between the environmental baseline and the no-action alternative.