Opinion
G043651 Super. Ct. No. 30-2009-00123216
08-11-2011
CITY OF RIVERSIDE, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents.
Chatten-Brown & Carstens, Jan Chatten-Brown, Douglas P. Carstens, Michelle N. Black, Arthur Pugsley; Gregory Priamos, City Attorney, Kristi Smith and Anthony Beaumon, Deputy City Attorneys, for Plaintiff and Appellant. Carmen A. Trutanich, City Attorney, Thomas A. Russell, Assistant City Attorney, Christopher B. Bobo, Deputy City Attorney; Meyers, Nave, Riback, Silver & Wilson, Amrit S. Kulkarni, Julia L. Bond and Peter S. Hayes for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Ronald L. Bauer, Judge. Affirmed.
Chatten-Brown & Carstens, Jan Chatten-Brown, Douglas P. Carstens, Michelle N. Black, Arthur Pugsley; Gregory Priamos, City Attorney, Kristi Smith and Anthony Beaumon, Deputy City Attorneys, for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Thomas A. Russell, Assistant City Attorney, Christopher B. Bobo, Deputy City Attorney; Meyers, Nave, Riback, Silver & Wilson, Amrit S. Kulkarni, Julia L. Bond and Peter S. Hayes for Defendants and Respondents.
INTRODUCTION
The Port of Los Angeles prepared an environmental impact statement/environmental impact report (EIR) for a project involving the construction and operation of a container terminal in the West Basin of the Port of Los Angeles. The Board of Harbor Commissioners of the City of Los Angeles approved the final EIR. The City of Riverside (the City) sought a writ of mandate from the trial court, challenging the EIR. The trial court denied the petition for a writ of mandate, and the City appeals. (We will refer to respondents the City of Los Angeles, the Los Angeles City Council, the Los Angeles Harbor Department, the Board of Harbor Commissioners, and the Port of Los Angeles collectively as the Port, for ease of reference.)
Having independently reviewed the administrative record, we conclude the Port did not abuse its discretion in certifying the final EIR, and we therefore affirm the trial court's judgment.
STATEMENT OF FACTS
The project involves the construction of a new wharf, additional cranes, the expansion and development of 142 acres of terminal backlands, and the construction of terminal infrastructure at the Port of Los Angeles. In 1997, the Board of Harbor Commissioners certified a program EIR for the West Basin Transportation Improvements Program at the Port of Los Angeles. (Natural Resources Defense Council, Inc. v. City of Los Angeles (2002) 103 Cal.App.4th 268, 272.) In March 2001, the City of Los Angeles entered into a lease with China Shipping Holding Co., covering construction of the project as well as later terminal operations. (Id. at pp. 277-278.) The city council determined that the 1997 EIR covered the project, and that no additional documentation pursuant to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) was needed. (Natural Resources Defense Council, Inc. v. City of Los Angeles, supra, at p. 278.) The Natural Resources Defense Council, Inc., among others, petitioned for a writ of mandate, alleging the City of Los Angeles violated CEQA by entering into the lease without completing an adequate EIR. (Id. at p. 279.) The trial court denied the petition. (Ibid.) On appeal, the court concluded the Port of Los Angeles had failed to prepare a proper EIR, and the environmental review had been improperly segmented. (Id. at pp. 284-285.) The Port was ordered to prepare a proper EIR. (Id. at pp. 285-286.)
Phase I of the project has been completed. The present matter involves the EIR for phases II and III of the project. The Port released a draft EIR for public comment in August 2006. Numerous comments were received. Based on the comments received, the Port thoroughly revised and expanded the draft EIR for a second round of public review and comment in April 2008 (the recirculated draft EIR).
The City and the Riverside County Transportation Commission (RCTC) submitted comments on the recirculated draft EIR, asserting it had not adequately analyzed impacts to rail and road traffic in the City and Riverside County. The RCTC identified 12 at-grade rail crossings it claimed would be seriously affected by the project. The Port investigated existing conditions at those rail crossings.
In the final EIR, the Port responded to the comments to the recirculated draft EIR, including those by the City and the RCTC. The final EIR found that project-related rail activity would not result in significant traffic delays at rail crossings in the City or in Riverside County.
The Board of Harbor Commissioners held a hearing on the recirculated draft EIR on December 18, 2008. At the end of the hearing, the board unanimously certified the final EIR and approved the project. In its findings, the board concluded that, apart from two rail crossings near the Port of Los Angeles itself, the project would not cause significant rail crossing delay impacts, or contribute to significant cumulative rail crossing impacts. Specifically responding to comments from the City and the RCTC, the final EIR concluded: "The comments from the City of Riverside and RCTC both suggest that the findings in the Recirculated Draft EIS/EIR are not correct and that the proposed Project would cause significant impacts within Riverside from truck and rail traffic in addition to the two local intersections identified in the Recirculated Draft EIS/EIR. Characterizing congestion in Riverside County as caused by the Ports is incorrect and unsubstantiated. Rather, congestion in Riverside County is predominantly a result of land use planning and growth policies and decisions of the jurisdictions within the county."
PROCEDURAL HISTORY
The City filed a petition for a writ of mandate, and complaint for declaratory and injunctive relief, on February 18, 2009. (The case was originally filed in Los Angeles Superior Court, but was transferred to Orange County Superior Court pursuant to a stipulated order.)
The trial court issued a minute order denying the petition for a writ of mandate. The court entered judgment in favor of the Port on April 8, 2010. The City timely appealed.
DISCUSSION
I.
STANDARD OF REVIEW
The parties initially disagree on the standard of review this court must apply. The appropriate standard of review was set forth by the California Supreme Court in Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 426-427: "In reviewing an agency's compliance with CEQA in the course of its legislative or quasi-legislative actions, the courts' inquiry 'shall extend only to whether there was a prejudicial abuse of discretion.' [Citation.] Such an abuse is established 'if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.' [Citations.] [¶] An appellate court's review of the administrative record for legal error and substantial evidence in a CEQA case, as in other mandamus cases, is the same as the trial court's: The appellate court reviews the agency's action, not the trial court's decision; in that sense appellate judicial review under CEQA is de novo. [Citations.]" (Fns. omitted.) In other words, on appeal, we independently review the administrative record to determine whether the Port prejudicially abused its discretion.
"'"'Substantial evidence is defined as "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached."'"' [Citation.] '"In determining whether substantial evidence supports a finding, the court may not reconsider or reevaluate the evidence presented to the administrative agency. [Citation.] All conflicts in the evidence and any reasonable doubts must be resolved in favor of the agency's findings and decision. [Citation.] [¶] In applying that standard, rather than the less deferential independent judgment test, 'the reviewing court must resolve reasonable doubts in favor of the administrative findings and decision.'"' [Citations.]" (Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, 522-523.)
Our role as a reviewing court is to consider the sufficiency of the EIR as an informational document. (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392.) "A court may not set aside an agency's approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable. [Citation.] A court's task is not to weigh conflicting evidence and determine who has the better argument when the dispute is whether adverse effects have been mitigated or could be better mitigated. We have neither the resources nor scientific expertise to engage in such analysis, even if the statutorily prescribed standard of review permitted us to do so. Our limited function is consistent with the principle that 'The purpose of CEQA is not to generate paper, but to compel government at all levels to make decisions with environmental consequences in mind. CEQA does not, indeed cannot, guarantee that these decisions will always be those which favor environmental considerations.' [Citation.]" (Id. at p. 393.)
II.
EXHAUSTION OF REMEDIES
The Port argues that many of the arguments raised by the City on appeal were neither raised in the administrative proceeding, nor preserved in the trial court.
Public Resources Code section 21177, subdivision (a) provides: "An action or proceeding shall not be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination."
The purpose of the exhaustion of administrative remedies doctrine is to give the public agency the opportunity to receive and respond to specific factual and legal issues. (Coalition for Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197-1198. "[T]he exact issue raised in the lawsuit must have been presented to the administrative agency so that it will have had an opportunity to act and render the litigation unnecessary." (Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894; see Citizens for Responsible Equitable Environmental Development v. City of San Diego, supra, 196 Cal.App.4th at p. 527 ["general, unelaborated objections [are] insufficient to satisfy the exhaustion doctrine"]; Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 535 ["'"exact issue"'" must have been presented to administrative agency in order to exhaust administrative remedies in CEQA case]; Endangered Habitats League, Inc. v. County of Orange (2005) 131 Cal.App.4th 777, 791 [arguments against plan on same general topic do not save specific statutory argument that was not raised at administrative proceeding level].) If the exhaustion of administrative remedies doctrine applies, a court does not have the discretion to refuse to apply it. (Azusa Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52 Cal.App.4th 1165, 1215-1216.)
The City bears the burden of demonstrating that the issues raised in its appellate briefs were first raised at the administrative proceeding level. (Sierra Club v. City of Orange, supra, 163 Cal.App.4th at p. 536.)
An exception to the exhaustion of administrative remedies doctrine applies when the agency fails to provide sufficient opportunity to the public to raise objections to the project. Public Resources Code section 21177, subdivision (e) provides: "This section does not apply to any alleged grounds for noncompliance with this division for which there was no public hearing or other opportunity for members of the public to raise those objections orally or in writing prior to the approval of the project, or if the public agency failed to give the notice required by law." As will be explained post, the City cannot establish any lack of notice by the Port, and the City does not claim any lack of a public hearing or lack of an opportunity to provide written comments.
Additionally, the City cannot argue on appeal issues that were not raised in the trial court. (A Local & Regional Monitor v. City of Los Angeles (1993) 12 Cal.App.4th 1773, 1804.) This rule, too, is subject to exceptions. An appellate court may consider issues that are pure questions of law, such as whether the EIR was adequate as a matter of law, or whether the issue is one of public interest. (Woodward Park Homeowners Assn., Inc. v. City of Fresno (2007) 150 Cal.App.4th 683, 713-714.)
III.
THE PORT'S RESPONSE TO COMMENTS BY THE CITY
AND THE RCTC WAS TIMELY.
The City argues the Port failed to comply with the requirements of Public Resources Code section 21092.5, subdivision (a), which provides, in part: "At least 10 days prior to certifying an environmental impact report, the lead agency shall provide a written proposed response to a public agency on comments made by that agency." (See also Cal. Code Regs., tit. 14, § 15088, subd. (b).) The City claims it received the Port's responses to its comments on December 9, 2008, while the EIR was certified fewer than 10 days later, on December 18.
But the administrative record contains a cover letter dated December 5, 2008, under which the response to comments document was sent to all commenting agencies. Additionally, at the final hearing, the director of environmental management of the Port of Los Angeles testified that the Port both mailed and e-mailed the response to comments to the Riverside City Attorney's Office on December 5. The City concedes, in its reply brief on appeal, that the Port's response was mailed 13 days before the hearing. The City argues, without any authority, that the Port failed to meet its obligation because the City did not receive the response until four days later.
We conclude the Port met its obligation to provide a written response to comments at least 10 days prior to certifying the EIR by mailing and e-mailing the response 13 calendar days before the hearing. The City has failed to establish a lack of compliance with the applicable notice requirements.
IV.
THE RECIRCULATED DRAFT EIR DID NOT DEFINE THE AREA AFFECTED BY
THE PROJECT TOO NARROWLY.
The recirculated draft EIR identified two at-grade rail crossings near the Port of Los Angeles, which would experience significant, unavoidable impacts from the project. The recirculated draft EIR determined there would be no other negative impacts from the project due to rail-related issues: "[R]ail-related impacts due to the proposed Project are limited to the at-grade crossings that are located south of the downtown rail yards, and are focused on the at-grade crossings on local lines in and near the Port."
The recirculated draft EIR concluded the project would not cause significant rail-related impacts outside the general Port of Los Angeles area. "The Project will not cause significant rail-related impacts on lines that lead north or east of the downtown rail yards. Rail trips are not controlled by the Port. Currently, the unit trains built at the on-dock and near dock facilities can be picked up by [Burlington Northern Santa Fe Railway] and/or [Union Pacific]. Both rail companies use the Alameda Corridor to travel to the downtown rail yards. To the east of the downtown rail yards, some of the trains are broken down, reconfigured and otherwise modified at the location of the downtown rail yards from that point to the east. Other trains remain unit trains through the downtown rail yard; there are approximately nine major routes with a number of subroutes that the trains can take to leave the state. The rail operators, and not the Port, make the choice of what routes the trains will take, the day they will move and the time of day the trains will move. Furthermore, the rail mainline tracks were designed and built to accommodate the anticipated rail activity in the region. Rail volumes on the mainline are controlled and limited by the capacity of the mainline itself, thus by definition the project's trains could not traverse the mainline unless it still has remaining capacity. The number of trains generated by the project would not cause the mainline rail tracks to exceed the regional capacity. Once the regional mainline rail track capacity would be exceeded due to increases in regional rail activity, separate environmental studies on the mainline expansion would be undertaken by the rail companies, not by each shipper or carrier generating rail volumes."
The City and the RCTC made numerous comments regarding the recirculated draft EIR, all of which were tied to the effect of increased rail traffic. The Port responded to those comments in the final EIR. The City, however, argues that the Port erred in its response to those comments. The City's arguments in this regard are lengthy and detailed.
Although the City does not make this specific argument in its appellate briefs, a theme running through the entirety of its arguments is that the Port erred by failing to consider the rail-related impacts on the City and Riverside County in the recirculated draft EIR. (This argument was raised specifically in the trial court.) An EIR must include the proper boundaries for a project when determining the environmental impact it might have. "An EIR is required to discuss significant impacts that the proposed project will cause in the area that is affected by the project. [Citation.] This area cannot be so narrowly defined that it necessarily eliminates a portion of the affected environmental setting." (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1216.)
The area considered by the recirculated draft EIR was not too narrowly defined. The recirculated draft EIR considered rail-related impacts in the areas immediately adjacent to the project site, and as far away as the Los Angeles rail yards, 20 miles from the project site. This case is distinguishable from the cases cited by the City. In Bakersfield Citizens for Local Control v. City of Bakersfield, supra, 124 Cal.App.4th at page 1216, the appellate court concluded the EIR's for two retail shopping centers, which were located 3.6 miles apart and shared four arterial roadways, were insufficient for failing to consider the other center when examining the cumulative impacts of each. In San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 724, the appellate court concluded an EIR that described the project site as surrounded by farmland was deficient for failing to consider that the project site was adjacent to the San Joaquin River, a wildlife preserve was nearby, and wetlands might be located on the project site.
"An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant." (Cal. Code Regs., tit. 14, § 15125, subd. (a).) The California Code of Regulations does not define "vicinity" and no published case appears to have considered the issue. "Vicinity" has been defined as "1: the quality or state of being near: nearness, propinquity, proximity . . . 3: a surrounding area or district: locality, neighborhood . . . ." (Webster's 3d New Internat. Dict. (2002) p. 2550, capitalization omitted.) Another definition for "vicinity" is: "A place near to a place designated, but not adjoining or abutting on it." (Ballentine's Law Dict. (3d ed. 1969) p. 1342.)
The recirculated draft EIR and final EIR included several depictions of the "Project Site and Vicinity," which were limited in scope to the Port of Los Angeles and the area immediately around it. No commenter appears to have questioned or criticized the EIR's use of the term "vicinity."
We conclude neither the City nor the County of Riverside is in the "vicinity" of the project. The Port did not abuse its discretion by failing to include in the recirculated draft EIR an analysis of rail-related impacts on the City and County of Riverside. Nevertheless, as explained in section VI post, in the final EIR, the Port did consider the potential impact of the project in the City and County of Riverside in its response to the comments of the City and the RCTC.
V.
THE CITY FAILED TO EXHAUST ITS REMEDIES REGARDING CHALLENGES TO
THE METHODOLOGY USED BY THE PORT IN THE RECIRCULATED DRAFT EIR TO
ANALYZE RAIL-RELATED IMPACTS.
The recirculated draft EIR identified the level of significance for traffic delays at railroad crossings as follows: "An increase in rail activity could cause delays to motorists at the affected at-grade crossings where additional project trains would cross and/or where the project would result in additional vehicular traffic flow. The project is considered to have a significant impact at the affected at-grade crossings if the average vehicle control delay caused by the project at the crossing would exceed the Highway Capacity Manual (HCM) threshold for level of service E at a signalized intersection, which is 55 seconds of average vehicle delay."
In its respondent's brief on appeal, the Port explains its methodology of analyzing rail crossing delays as follows: "The AVD [(average vehicle delay)] methodology, and 55-second AVD threshold of significance, work as follows: First, the Port collects data on gate blockage time per passing train (in minutes); average 'arrival rate' of vehicles at a crossing (in minutes per road lane); frequency of passing trains at a crossing (per hour); and number of road lanes at a crossing. . . . Using those data, and a formula set out in the EIR, the Port calculates the 'total traffic delay' - i.e., the aggregate amount of delay, experienced by the entire body of vehicles as a whole, at a given crossing in a given hour, due to the passage of trains. . . . Then, the Port averages 'total traffic delay' over the number of vehicles using that crossing in a given hour (whether delayed by a train or not), to identify 'average vehicle delay,' i.e., how much delay is experienced, on average, by each individual vehicle which uses the crossing in that hour. . . . Finally, the Port compares 'average vehicle delay,' expressed in seconds, to a standard, drawn from the HCM, under which a crossing is determined to operate at an unacceptable LOS [(level of service)] if average vehicle delay, among all vehicles using a given crossing in the peak traffic hour, is equal to or greater than 55 seconds. . . . [¶] The Port's methodology therefore (1) yields information on how much delay an individual vehicle will experience, on average, at a given rail crossing in a given hour and (2) allows for comparison to a recognized standard for determining the significance of a project's impacts on the operational LOS of a roadway intersection."
The RCTC attached to its comment letter a technical review of the recirculated draft EIR's analysis of potential environmental impacts in Riverside County. The technical review analyzed the impact of rail-related traffic delays, as well as increased emission of pollutants and traffic delays caused by an increased number of trucks transporting goods from the Port of Los Angeles. The technical review noted that the recirculated draft EIR did not identify any potential impacts in Riverside County, but made its own finding that an anticipated impact of the project would be "additional freight rail traffic carrying containers through Riverside County (particularly the impacts caused by the trains passing through at-grade rail crossings, where traffic is delayed waiting for the trains)." It concluded that the effect of the additional cargo containers carried through Riverside County by train due to the increased traffic from the project would result in an increased delay of 36.3 vehicle hours per day. The technical review also identified 12 crossings in Riverside County "where the additional container traffic would increase the existing delay by at least one vehicle-hour of delay per day."
The City raises numerous challenges to the average vehicle delay methodology in the EIR. These challenges, however, are barred by the City's failure to exhaust the issue. The City admits this issue was not raised in its comments on the recirculated draft EIR, but argues it did not realize the Port's methodology was an issue until the trial court hearing on the petition for a writ of mandate. Having thoroughly reviewed the administrative record and the appellate record, we conclude the Port fully and accurately explained its methodology in the recirculated draft EIR. The confusion resulting from a mistaken description of the EIR's methodology in the Port's trial brief does not mean the recirculated draft EIR misrepresented the methodology, so as to relieve the City of its failure to exhaust the issue in the administrative proceedings.
VI.
DID THE PORT PROVIDE ADEQUATE RESPONSES TO THE COMMENTS RAISED
BY THE CITY AND THE RCTC?
The City argues that the Port failed to respond to many of the comments raised by the City and the RCTC regarding rail-related environmental impacts from the project, and failed to provide analysis specifically requested by the City. The failure to respond to public comments on a draft EIR can constitute an abuse of discretion by the lead agency. "The Port [of Oakland]'s response fell far short of the 'good faith reasoned analysis' mandated by CEQA for responding to significant conflicting information generated by the public. [Citations.] Much information of vital interest to the decision makers and to the public pertaining to toxic air contamination was simply omitted. In other instances, the information provided was either incomplete or misleading. The dispute in this regard goes beyond a disagreement of qualified experts over the reasoned conclusions as to what the data reveals. The EIR failed to acknowledge the opinions of responsible agencies and experts who cast substantial doubt on the adequacy of the EIR's analysis of this subject. The conclusory and evasive nature of the response to comments is pervasive, with the EIR failing to support its many conclusory statements by scientific or objective data. These violations of CEQA constitute an abuse of discretion." (Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1371.)
The Port notes that in responding to the comments of the City and the RCTC, the Port conducted a field investigation and analysis of existing conditions at the rail crossings identified by the RCTC. Based on this analysis, the Port concluded there would not be any significant impact to rail crossings in the City and County of Riverside as a result of the project.
In determining whether the Port responded adequately to the comments, we consider whether substantial evidence in the record supports the response. An agency must provide a good faith, reasoned response to public comments on a draft EIR. "The written response shall describe the disposition of significant environmental issues raised . . . . In particular, the major environmental issues raised when the lead agency's position is at variance with recommendations and objections raised in the comments must be addressed in detail giving reasons why specific comments and suggestions were not accepted. There must be good faith, reasoned analysis in response. Conclusory statements unsupported by factual information will not suffice." (Cal. Code Regs., tit. 14, § 15088, subd. (c).) The response need not be exhaustive as long as it adequately addresses the issues raised in the comments. (Towards Responsibility in Planning v. City Council (1988) 200 Cal.App.3d 671, 683.) A lead agency is "not required to exhaust all suggested testing before EIR certification [citation], particularly since there was expert opinion indicating that further investigation was not necessary. 'Just as an agency has the discretion for good reason to approve a project which will admittedly have an adverse environmental impact, it has discretion to reject a proposal for additional testing or experimentation.' [Citation.]" (Cadiz Land Co. v. Rail Cycle (2000) 83 Cal.App.4th 74, 102.)
A.
The final EIR did not fail to disclose the basis of train projections,
as requested by the City's comments.
The recirculated draft EIR projected 817 annual rail round trips attributable to the project by 2030. The City's comment letter complained that the basis for this estimate was not included: "The data and calculations underlying the 817 estimated rail round-trips were not included in the [recirculated draft] EIR or its appendices. There is a passing citation to the 'Rail Master Plan and actual Yang Ming rail yard projections' on [the recirculated draft] EIR page 2-2, but those projections are never revealed. There is no way to verify the timeliness, accuracy, applicability, or even the existence of the data. Those data must be included and analyzed in the [recirculated draft] EIR discussions and analysis, or at the very least, as an appendix." The Port's response to this comment reads: "The count of 817 rail round trips required for the projected Project is based on the projected terminal TEU throughput and the percentage of total throughput that would be transported via rail. Please see Table E12.-13 in Appendix E of the Recirculated Draft EIS/EIR."
TEU stands for 20-foot equivalent unit, which is the typical means for expressing the amount of cargo. The City's opening appellate brief includes the following discussion of the TEU's that are anticipated from the project (parenthetical references are the City's citations to the administrative record): "With 10 cranes and the expansion of terminal backlands from 11 to 142 acres (6:2869-2870), by 2030 the increased cargo capacity allowed by Phases II and III would accommodate delivery of 838,338 containers per year. (1:6-9; 6:2892.) Cargo is typically expressed in terms of twenty-foot-equivalent units (TEUs), and each container contains approximately two TEUs. The current Project will make possible more than a threefold increase in container throughput over Phase 1 of the Project, and more than a tenfold increase over levels prior to Phase I. (8:3784.) [¶] The EIR estimates by 2030 the Project would generate 817 annual 'roundtrip' rail movements, or 1,634 actual trips in and out of the port. (1:34; 6:2870.) [The Port] estimates that nearly 40 percent of TEUs arriving from overseas at the China Shipping terminal travel by near-dock and on-dock rail to further destinations. (6:2870.) Furthermore, the 40 percent of TEUs identified as traveling by rail does not appear to include the large percentage of TEUs trucked to railyards to be transferred to rail and ultimately through Riverside. (6:2870 [train trips described are only from on-dock and near-dock. It is unclear whether the term 'local delivery' includes the delivery of TEUs by truck to the Vernon or East Los Angeles rail yards].)"
The Port's response contains a typographical error, where it references table E12.-13; the correct reference is to table E1.2-13. While the error might have caused some confusion, the City's December 17, 2008 letter to the Port, regarding the responses to the comments, shows it was able to identify the table to which the Port was referring in its response.
It is probably self-evident that correct assumptions regarding the estimated increase in rail traffic generated by the project are necessary. Without a reasonable, good faith analysis, the EIR is not proper. And without a realistic estimate of what impact the project might have on the environment, a reasonable, good faith analysis is not possible. Did the Port, in its response to the City's comments or in the EIR itself, provide the evidence from which we can conclude the estimates of increased rail traffic are realistic?
The City contends that the Port's "failure to disclose the assumptions upon which the projections were based is a fatal flaw in the EIR." Having reviewed the recirculated draft EIR, it appears the Port provided an estimate of the TEU's generated annually by the project (figures that the City does not challenge), as well as an estimate of the TEU's that would be distributed to rail yards. Those estimates form the basis for the estimate of the increased number of train trips. Reference to the EIR itself may constitute a satisfactory response to a comment. (Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 378.)
The City argues the estimate of the percentage of TEU's that would be transported by rail in the EIR is contradicted by two other studies included in the EIR— the EIR prepared for the West Basin Transportation Improvements Program and the Ports of Long Beach/Los Angeles Transportation Study. The final EIR for the West Basin Transportation Improvements Program estimates, "[a]pproximately 50 percent of all containers passing through the West Basin terminals are expected to be transported by rail. This assumption is consistent with the Alameda Corridor Environmental Impact Statement (Federal Highway Administration, Federal Railroad Administration, and California Department of Transportation 1996) and the Deep Draft Navigation Improvements Project (COE, LAHD 1992)." Although the 50 percent estimate in the West Basin Transportation Improvement Program EIR is more than the 36.5 percent figure used in the EIR for this project, the West Basin program was vastly different in size, and that EIR was prepared 10 years before the EIR in this case. An earlier, different EIR's use of different estimates of rail transportation of containered material does not make the EIR for this project inaccurate or incomplete.
Similarly, the Ports of Long Beach/Los Angeles Transportation Study estimates that by 2010, "50 percent of all containers that move through the Ports will be transported by rail to inland destinations via on-dock and off-dock railyards." The purposes of this study, performed in 2001, were to identify potential problems in the transportation system throughout the Port of Los Angeles and Port of Long Beach, and develop an implementation plan for addressing any deficiencies in the system. The study was not intended as an environmental review document, and dealt with a much larger area than does the EIR for this project. Its applicability to the present issue is limited, at best.
Moreover, as the Port notes, the Port's additional analysis regarding traffic delays due to increased rail traffic that was performed in the City and County of Riverside in response to the comments raised by the City and the RCTC did not use the rail estimates included in the recirculated draft EIR; the analysis used the RCTC's technical review's estimate that four additional trains per day attributable to the project would pass through Riverside and its environs. In its response to the comments, the Port accepted the technical review's assumptions. The Port's reliance on one set of assumptions rather than that contained in other documents does not invalidate the EIR, as long as the assumptions and conclusions on which the Port relied are supported by substantial evidence. (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at pp. 392-393.)
The City also argues that the EIR's estimate of rail trips does not account for the EIR's inclusion of an incentive program to promote rail use. Its citation to the administrative record for this factual statement is actually a reference to the initial draft EIR; the City does not cite to any spot in the recirculated draft EIR or the final EIR that includes a reference to an incentive program for the Port of Los Angeles tenants to use rail rather than trucks. We do not find the argument compelling.
Finally, the City argues that the EIR is not clear about whether rail trips from other nonproject areas of the Port of Los Angeles are included in the estimate of rail trips generated by the project. (The Port does not specifically address this argument.) We discern no such lack of clarity. The recirculated draft EIR provides estimates of the increase in container traffic, and the attendant increase in rail-related traffic related to the project.
B.
The final EIR did not fail to address impacts to emergency services.
The City argues the Port failed to adequately respond to its comment that increased rail traffic due to the project would adversely impact the provision of emergency services in the City and County of Riverside. The comment letter stated: "Police, fire and EMT officials reported 491 delays at Riverside's at-grade crossings between 2002 and 2007. Responder delays averaged 3 minutes and were as long as 21 minutes. [¶] In the first half of 2007, Riverside experienced 82 rail-delayed fire trucks and ambulances, for a total of 256 minutes. Each of those minutes can represent life or death. Heart attack survival rates can drop from 7% to 10% for each minute of delay. Brain damage can occur in 3 to 4 minutes. From December 1, 2006 to April 24, 2007, rail delays affected 270 police vehicles, for a total of 1,327 minutes (22.12 hours). Again, those minutes can mean life or death."
The reference to emergency vehicle delays is one of several examples in the City's comment letter of how the project and the increased number of trains attributable to the project will adversely impact the City and County of Riverside. (After stating that "[r]epeated rail-scheduling conflicts result in serious delays in Riverside, and elsewhere," the comment letter reads, "For example," and then lists several bullet points that describe specific problems caused by rail-related delays.) Although the City does not specifically make this point, considering its comment letter in toto, the City was arguing the increase in rail traffic from the project would exacerbate problems with emergency service delays. We therefore reject the Port's argument that this issue was not fully raised or developed by the City.
The problem is that there is no evidence supporting any one of the factual claims made in the City's comment letter. The City apparently provided the Port with a copy of an August 2006 report by the Federal Railroad Administration on the impact of blocked highway and rail grade crossings on emergency response services. That report includes the unassailable finding that "[b]locked crossings . . . can be a particularly serious problem for emergency responders." The report does not include any data or analysis specific to the City or County of Riverside (although, interestingly, it uses the improvements to the Alameda corridor, which are discussed in the EIR, as a case study for dealing with problems of grade crossing delays to emergency responders).
The Port's response to this comment cross-referenced its response to other comments, which in turn cross-referred to other responses. As with the City's comment, it appears that the Port's response to this specific comment was subsumed by its general response to the overall complaint by the City and the RCTC—that the project would result in more rail traffic, causing greater traffic delays in the City and County of Riverside. (We can find no prohibition on such cross-referencing of comments or responses to comments.)
The Port's analysis determined that the increase in rail traffic due to the project would not have a significant impact on traffic delayed at at-grade rail crossings in the City and County of Riverside. As there was substantial evidence supporting this finding, then it must be true that there would not be a significant impact on other environmental concerns, such as delays experienced by emergency responders, which the City claimed was directly related to the increase in rail-related delays. The City does not provide any authority for its contention that the increase in delays to emergency responders must be studied and analyzed separately from the analysis of the rail crossing delays.
C.
The final EiR did not fail to discuss air pollution and other impacts
from vehicles stopped by trains.
The City argues the Port failed to adequately respond to the City's comment regarding the environmental impact of increased air pollution resulting from cars stopped at rail crossings: "[I]dling vehicles stopped at at-grade crossings contribute 45 tons of air pollutants annually. By 2020, idling vehicles stopped at at-grade crossings will generate 208 tons of air pollutants annually: a staggering 450 percent increase in just 12 years. The Riverside County Department of Health indicates that City of Riverside children, 5-14 years of age, suffer more asthma-related hospitalizations than any other group." As with the preceding argument regarding emergency services, the City's comment letter raises the concern that increased vehicular traffic delays due to the increase in rail traffic from the project will exacerbate air pollution problems. And we again observe that the Port's response to this specific comment was subsumed by its general response to the overall comment that the project would have a significant adverse impact on vehicular traffic delays in the City and County of Riverside.
The Port's analysis determined that the increase in rail traffic due to the project would not have a significant impact on vehicular traffic delayed at at-grade rail crossings in the City and County of Riverside. As there was substantial evidence supporting this finding, then it must be true that there would not be a significant impact on other environmental concerns, such as air pollution, which the City claimed were directly related to the increase in rail-related delays.
D.
The City failed to exhaust the issue of failure to report actual train count data.
The City criticizes the Port for failing to obtain actual train count data from the Union Pacific and Burlington Northern Santa Fe railroads. This argument was neither raised in the administrative proceedings, nor in the trial court, and has therefore been forfeited.
E.
The Port did not err in omitting passenger trains from its analysis.
The City next argues the Port understated rail-related traffic delays by omitting passenger trains from its analysis. The Port excluded passenger trains when collecting data on existing conditions in the City and County of Riverside, because passenger trains do not block grade crossings as long as freight trains do. Therefore, the Port contends, including passenger trains in the analysis for this case would have undercounted rail-related delays caused by the project. Additionally, the Port noted that its expert concluded there was no appreciable difference in terms of the significance of environmental impacts between the RCTC's data (which included passenger trains) and the Port's data (which did not). We find no abuse of discretion in the Port's exclusion of passenger trains from its analysis.
F.
The City failed to exhaust the issue of failure to include gate downtimes
when no train is present.
The City argues the Port erred in omitting from its analysis the delays resulting from closed gates at crossings when no train is present. The City failed to raise this issue in the administrative proceedings, or in the trial court. The issue has been forfeited.
VII.
SUBSTANTIAL EVIDENCE SUPPORTS THE PORT'S FINDING THAT THE PROJECT
WILL HAVE NO SIGNIFICANT IMPACT ON THE CITY OR COUNTY OF RIVERSIDE.
The City argues there is no substantial evidence to support the Port's findings that (1) the project-specific impact of increased train-induced delays in the City and County of Riverside would not be significant, and (2) the cumulative impact of new train traffic generated by overall port development would not have significant adverse impacts on the City and County of Riverside.
"Challenges to an EIR based on a dispute about the scope of the analysis, the validity of the methodology used, or the accuracy of data it relied on involve factual issues; in those instances, the question for the court is whether the agency's reasons for studying the impact as it did are supported by substantial evidence. [Citations.] [¶] A reviewing court will resolve any disputes regarding the adequacy of the EIR's analysis in favor of the lead agency if there is any substantial evidence in the record supporting the EIR's approach. [Citations.]" (1 Kostka & Zischke, Practice Under the Cal. Environmental Quality Act (Cont.Ed.Bar 2d ed. 2011) § 11.35, pp. 564-565 (rel. 1/11).)
"An EIR should be prepared with a sufficient degree of analysis to provide decisionmakers with information which enables them to make a decision which intelligently takes account of environmental consequences. An evaluation of the environmental effects of a proposed project need not be exhaustive, but the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. Disagreement among experts does not make an EIR inadequate, but the EIR should summarize the main points of disagreement among the experts. The courts have looked not for perfection but for adequacy, completeness, and a good faith effort at full disclosure." (Cal. Code Regs., tit. 14, § 15151.)
The lead agency is responsible for determining whether an environmental impact of a proposed project is significant. (Cal. Code Regs., tit. 14, § 15064, subd. (b).)
The City contends that the Port relied on incomplete or insufficient train counts and included nondelayed vehicles in its delay calculations in concluding the impact on the City and County of Riverside would not be significant. The City cites Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 879-880, in which the appellate court affirmed the judgment following the trial court's order granting a petition for a writ of mandate setting aside the certification of a final EIR for an open-air human waste composting facility. The trial court found that the final EIR's finding that the alternative of an enclosed facility was not economically and technically feasible was not supported by substantial evidence, and that the final EIR failed to include a required water supply assessment. (Ibid.) As discussed in more detail ante, we conclude the Port did not abuse its discretion in basing its analysis on the selected criteria.
The City also argues the Port was required to mitigate the impacts of the project by contributing its fair share to grade separation projects in the City and County of Riverside. CEQA requires that significant environmental impacts from a project be mitigated when feasible. (City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 369.) The City points to a statement by the Board of Harbor Commissioners in the findings of fact in the final EIR, which the City claims, proves the Port was required to undertake mitigation of rail-related delays in the City and County of Riverside due to the cumulative significant impacts of the project. The findings read, in part: "The only at-grade crossings potentially affected by the proposed Project are at Avalon Boulevard and Henry Ford Avenue. The grade crossing at Fries Avenue would be eliminated as part of the South Wilmington Grade Separation project. Impacts from the proposed Project along with other cumulative projects on the regional rail corridors north of the proposed Project site would not be significant since the Alameda Corridor project has been completed. The completion of the corridor has eliminated the regional at-grade rail/highway crossings between the Port and the downtown rail yards; therefore, there would be no change in vehicular delay at any of those crossings due to proposed Project-related rail activity (they are now all grade separated). Significant cumulative impacts would occur at Avalon Boulevard and Henry Ford Avenue crossings. Cumulatively, there would also be a significant impact on the at-grade rail crossings east of downtown Los Angeles. This cumulative impact would be due to the overall growth in rail activity that would occur to serve the added cargo throughput in the Southern California region and the nation." (Italics added.)
The City quotes only the italicized portion of the final EIR's finding.
The Port discounts this statement as a simple typographical error; the statement does conflict with other findings within the same section of the final EIR: "The Project will not cause significant rail related impacts on lines that lead north or east of the downtown rail yards"; "[S]ignificant vehicle delay impacts at the at-grade crossings in Riverside County (and City of Riverside) are not anticipated. Therefore, no mitigation for such impacts is required."
So we are left with the situation of a final EIR that contains conflicting findings on the key issue before us. Neither party addresses how this court should evaluate such conflicting factual findings. Because of the overall rules for considering challenges to EIR's under CEQA, we consider whether substantial evidence supports the different findings. As explained ante, we have determined that substantial evidence supports the Port's findings that the project would not cause significant rail-related delays in the City and County of Riverside.
If the Port correctly determined that there were no significant adverse impacts on the City and County of Riverside due to the project, then the Port had no obligation to consider, much less contribute to, their mitigation.
The City candidly admits that long before the recirculated draft EIR was published for comment, the County of Riverside had analyzed the problems within its community due to delays at at-grade rail crossings, had developed a plan for correcting those problems, and had begun trying to secure funding for its plan.
The Port does not have a "fair share" of Riverside County's mitigation plan, and therefore cannot be faulted for failing to contribute its fair share.
Ultimately, our role as a reviewing court is not to decide whether the Port acted wisely in approving the project. We only determine whether the EIR contained sufficient information about the project and the potential environmental impacts that would arise from the project, so as to allow for an informed decision. (Eureka Citizens for Responsible Government v. City of Eureka, supra, 147 Cal.App.4th at p. 378.) We conclude that the EIR was sufficient in this respect, and that the City has failed to meet its burden to show otherwise.
DISPOSITION
The judgment is affirmed. Respondents to recover costs on appeal.
FYBEL, J.
WE CONCUR:
MOORE, ACTING P. J.
IKOLA, J.