SAN DIEGO, CITY OF v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY

Respondent’s Petition for Review

Cal.January 23, 2012

f$199557 spselereatrVY S JAN 2 8 2012 Frederick K. Ohlrich Clerk IN THE Deputy SUPREME COURT OF CALIFORNIA CITY OF SAN DIEGO,etal., Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, . Defendant and Respondent. AFTER A DECISION BY THE COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE CASE No. D057446 PETITION FOR REVIEW HORVITZ & LEVY LLP GATZKE DILLON & BALLANCE LLP JEREMYB. ROSEN(Bar No. 192473) MARK J. DILLON (BAR No. 108329) BRADLEY S. PAULEY (BAR No. 187298) MICHAELS. HABERKORN (BAR NO. 159266) 15760 VENTURA BOULEVARD, 18TH FLOOR DANIELLE K. MORONE (BAR No. 246831) ENCINO, CALIFORNIA 91436-3000 1525 FARADAY AVENUE, SUITE 150 (818) 995-0800 » FAX: (818) 995-3157 CARLSBAD, CALIFORNIA 92008 bpauley@horvitzlevy.com (760) 4381-9501* FAX: (760) 431-9512 jrosen@horvitzlevy.com mdillon@gdandb.com mhaberkorn@gdandb.com dmorone@gdandb.com 4 ATTORNEYS FOR DEFENDANT AND RESPONDENT BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY TABLE OF CONTENTS Page TABLE OF AUTHORITIES..........ceceeeecssssscseseeeseeessteneenes ii ISSUES PRESENTED...cccccccceseeseecesssscecesevssscuseceeveenanes 1 INTRODUCTION: WHY REVIEW SHOULD BE GRANTED....... 3 STATEMENT OF THE CASE... cccecccccccccsseeseceeseeesessesessseeeeeneees 6 A. CSU approves an important planned expansion of SDSU andcertifies the project’s EIR. The City and others sue, challenging the EIR.............0.0000..00. 6 CSU sets aside its original EIR in response to this Court’s decision in Marina, revises the project’s master plan and issues a new draft EIR....... 7 The City and other governmententities comment on the draft EIR. CSU’sefforts to negotiateits mitigation obligations fail.................:c0cccceeeeeceeceeeeeeeeeee 8 CSU certifies the final EIR and approves the YEVISEC PLOJCCE. ......ccecccccceccccceeececeseessesseececsersureseueeeeuecs 11 The City, SANDAG and MTSsue, challenging CSU’s certification of the final EIR and approval of the revised project. The Superior Court | upholds the final EIR...ceceeeessceeeeeessenerees 12 The Court of Appeal reverses, holding CSU did not comply with its CEQA mitigation obligations and that CSU’s factual findingsin the final EIR were not supported by substantial evidence. ........... 12 LEGAL ARGUMENT)... eeeceecceceeeeseeeteeseenseeseaueeseeeseesseeeeenes 15 I. REVIEW IS NECESSARY TO CLARIFY WHETHER ASTATE AGENCY SATISFIES ITS CEQA OBLIGATIONS TO MITIGATE OFF-SITE ENVIRONMENTAL IMPACTS BY REQUESTING FUNDS FOR SUCH MITIGATION FROM THE LEGISLATURE, 00... cie cece cceeeeeeeeeceeeeseeseeebeecsseseeecsseesaeees 15 1 A. In Marina, this Court held a state agency’s power to mitigate off-site impacts is subject to the Legislature’s control and, if the Legislaturefails to appropriate fundsfor off-site mitigation, the powerto mitigate does not eCXist.........cccccceeeeeeeeeeees 15 B. The Court ofAppeal here created a conflict in the law by holding, contrary to this Court’s statements in Marina, that a state agency owes a duty to mitigate off-site impacts regardless of whether the Legislature appropriates funds for that PULPOSE. .......ccceccccceecsccceceesessccessssssesecssssneneeeeeeeas 17 C. The Court of Appeal’s decision is erroneous and improperly ignores this Court’s prior directive. ....... 19 II. REVIEW IS NECESSARY TO CLARIFY THE STANDARD OF REVIEW FORAGENCIES’ FACTUAL FINDINGS IN CEQA CASES BECAUSE THE COURT OF APPEAL’S PUBLISHED DECISION CONFLICTS WITH OTHERWISE SETTLED LAW...............c: cece eeeeee 22 CONCLUSION00iccececcccecceceeeesecseeeeeeeseeseeesesseeeesecsecsseensecsnenes 27 ul TABLE OF AUTHORITIES Page(s) Cases Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450 woo. ccccciesesssccscsssessessssssssecesssseveranens 20 Citizens for East Shore Parks v. California State Lands Com. (2011) __- Cal-App.4th __ [2011 WL 6848346] oo.23 City of Marina v. Board of Trustees of California State University (2006) 39 Cal4th 341ieeeccsssccecscccecececcersnteseeeesepassim Defend the Bay v. City of Irvine (2004) 119 CalApp.4th 1261.0... cccceeccceccesssccsseceeneeersnaes 23 Hubbard v. Superior Court (1997) 66 CalApp.4th 1168.00...cececccccceccccessneseeceseesenes 20 Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376 .....ccccecccecssccceeessecceececseesssssesessneeeeens 22, 23 Mandel v. Myers (1981) 29 Cal.3d 531 occccccecccesscesesesssseecscsesessesestresers 19 Myers v. English . (1858) 9 Cal. 841...ccccccccsseceecsssseseessssesseessecseeeesteserenes 19 People v. Byrd (2001) 89 CalApp.4th 13878 oo...ccccsessssccessssceseecesnerees 21 People v. Superior Court (Persons) (1976) 56 CalApp.3d 191... ccccccccceeeessecesssccessereseesseensaes 21 Quantification Settlement Agreement Cases (2011) 201 CalApp.4th 758 oo.ccccccccccccsscccecsssseessessneeeess 19 Sacramento Old City Assn. v. City Council (1991) 229 CalApp.3d 1011...iccccceeescssesesnceeeeeetneee 23 Ul Sheeler v. Greystone Homes, Inc. (2003) 113 CalApp.4th 908 000... ccccccecessececeeeesseeeeeceeeenes 20 Tracy First v. City of Tracy (2009) 177 CalApp.4th 912 oo... iecccccccscccecsecsnsssaeeseaneneees 24 Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412 000... cceccccccssccccaaeeaaaseccseceseeueeeseeteaes 23 Constitutions Cal. Constitution, article XVI, § 7.0...cecceeececsseccnentectsaees 19 . Statutes Public Resources Code § 21000 et SOQ. .o.ceiccecccccccecsseceeeecsesseceeseesseecesssesassuesessaaaaneseners 1,2 § 21002.1, subd. (b) ooo... eeeecccseeeeesssssteeeeecsusecenenseess 16, 19 § 21081 ooo ecceeeeccccccccsssssccssaeesesseesceseeeeaeersuaaadeeeueeeeenenseeeenaaes 16 § 21081, subd. (a)(Q) oo... ceccssccsceccceesesececueeseceseeuenaaaaaes 16 § 21081.6occesececcusaevescanseeeesesceseceecersssaasecsaeccecens 26 § 21104, subd. (C) oo. eciceeeeeccscscceceseescecesseseesausssceeeesceseceeeres 25 § DLO occ ececcceccseesecsescsseesecsesscecesessesssssstsssessesesseavassetsecereeeees 16, 19 § 2Q1168.5 occcece ccneeeccccecucccececcuceceseesurscseeceeseveseseseceusnesss 22 § 21177, subd. (8)... ccccccceecsccceeccscecessssceeceececsseessesteetteessens 24 Rules of Court Cal. Rules of Court, rule 8.500(D)(1) 0... ccccceeeeesettee 21 Miscellaneous Cal. Code of Regulations,title 14 § 15126.4 (a)(L)(B) oo. ccccccccceccssecesececsseesessseeessecenssssnaaereees 26 § 15384, subd. (8)...ccc cccccccccceeseeassesessseeesesseueesssseeerereeaaeeees 22 lv IN THE SUPREME COURT OF CALIFORNIA CITY OF SAN DIEGO,et al., Plaintiffs and Appellants, Vv. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY, Defendant and Respondent. PETITION FOR REVIEW ISSUES PRESENTED 1. In City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 367 (Marina), a decision involving whether the Board of Trustees of the California State University (CSU) wasobligated by the California Environmental Quality Act, Public Resources Code section 21000 et seq. (CEQA)to mitigate a project’s significant off-site environmental impacts, a six-member majority of this Court stated that “a state agency’s power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” In a concurring opinion, Justice Chin disagreed, calling the majority’s analysis on this point “dictum,” and rejecting it on its merits, noting: “[W]ere the Legislature to reject such a request, arguably, the Trustees would still have responsibility and jurisdiction to contribute [to the project] from the CSU’s general operating fund.” (Id. at p. 372 (conc. opn. of Chin, J.).) In its published opinion here, the Court ofAppealrejected the majority opinion in Marina and instead agreed with Justice Chin, holding this Court’s statement regarding mitigation in Marina is “dictum,” is “not supported by any statute, regulation, case, or other authority,” and “did not involve extensive analysis.” (Typed opn., 29-32.) The Court of Appeal further observed, “had the California Supreme Court extensively addressed or analyzed the issue, Marina would have modified or qualified its dictum.” (Typed opn., 32.) In light of the above, does a state agencysatisfy its obligation under CEQA to mitigate the off-site environmental impacts of a project by requesting funds for such mitigation from the Legislature, consistent with this Court’s viewsas stated in Marina? Or, as the Court of Appeal held here in rejecting this Court’s analysis in Marina, and, as Justice Chin suggested in his separate opinion in Marina, must the agency also address in its Environmental Impact Report (EIR) “[t]he availability of potential sources of funding other than the Legislature” and demonstrate “compelling reasons” showing those sources cannot, as a matter of law, be used to pay for mitigation? 2. Does an appellate court review an agency’s decision to certify an EIR for abuse of discretion, upholding the agency’s factual determinations where they are supported by substantial evidence, as long-established law requires? Or, are reviewing courtsfree to engage in de novo review of agencies’ factual determinations, scrutinizing the supporting evidence anew and reversing an agency’s EIR certification based on speculative matters outside the appellate record as the Court of Appeal did here? INTRODUCTION: WHY REVIEW SHOULD BE GRANTED This case arises from the plan of CSU’s Board of Trusteesto expand educational opportunities at San Diego State University (SDSVU)by adding an array of new academic, academic support and other educational and multi-purpose buildings, and significantly increasing student enrollment. As required by CEQA,in its EIR, CSU determined the project would result in significant traffic- related impacts in the vicinity of the SDSU campus. It therefore sought funds from the Legislature to pay to mitigate those impacts. However, because CSU could not guarantee that the Legislature would appropriate the requested funds, it further determined that the impacts were “unavoidable” and adopted a statement of overriding considerations determining that, given its substantial benefits to the state and local community, the project should nonetheless proceed. The City of San Diego (the City) and other local government entities sued, challenging CSU’s approval of the project and certification of the EIR. The trial court determined that CSU had complied with CEQA whenit approved the project. The Court of Appeal reversed in an 83-page published opinion thatrejected this Court’s majority opinion in Marina regarding an agency’s inability to mitigate off-site impacts if the Legislature refuses to appropriate the necessary money,and instead adopted the contrary reasoning of Justice Chin’s separate concurring opinion. (Typed opn., 33.) Based on its apparent de novoreview of the record, the Court of Appeal also set aside factual findings CSU made during the administrative process regarding the project’s potential effect on trolley service, and the propriety of a program to reduce and managevehicletraffic near the campus. As we explain, this Court should grant review to secure uniformity of decision on these importantissues. First, this Court should grant reviewto clarify that it meant what it said in Marina: a state agencyfulfills its obligations with respect to funding mitigation of off-site impacts under CEQA by requesting the necessary funds from the Legislature and, absent such an appropriation, the power to mitigate does not exist. (Marina, supra, 39 Cal.4th at p. 367.) Echoing Justice Chin’s separate opinion in Marina, however, the Court ofAppeal held the majority's statements are dicta that need not be followed, and further speculated that if this Court had analyzed the issue more carefully it would have reacheda different conclusion. (Typed opn., 29-32.) On that basis, the Court of Appeal proceededto invalidate CSU’s approval ofthe project and certification of the EIR, holding CSU mustfirst address “[t]he availability of potential sources of funding other than the Legislature” and demonstrate “compelling reasons showing those sources cannot, as a matteroflaw, be used to pay for mitigation ....” (Typed opn., 33.) Contrary to the Court of Appeal’s holding, state agencies should not be requiredto identify every other conceivable source of funding and demonstrate whyeach possible source is unavailable as a matter of law before an EIR maybecertified and a project may proceed. But in any event, this Court should grant review regardless of whether its views as stated in Marina are correct given the confusion andlack of uniformity engendered by the Court of Appeal’s decision, which now makes it impossible for state agencies to know what they must do to meet CEQA’s mitigation requirements. Second, this Court should grant review to restore uniformity to the law concerning the standard of review used to evaluate an agency's decision to certify an EIR under CEQA. Until now, the case law has been clear that an agency’s decision to approve an KEIR is reviewed for abuseof discretion. (Marina, supra, 39 Cal.4th at p. 355.) But here, the Court of Appeal repeatedly went outside the appellate record and took it upon itself to second-guess CSU’s factual findings, effectively employing de novo review. (Typed opn., 33, 58-62, 79-81, fn. 25.) Review is needed to avoid confusion and to underscore the need for judicial deference to agencies’ factual findings. STATEMENT OF THE CASE A. CSU approves an important planned expansion of SDSUandcertifies the project’s EIR. The City and others sue, challenging the EIR. CSU is a 28-campus public university system, with approximately 450,000 students and 23,000 faculty members. (AR 20:20069, 20075, 20077.) CSU’s missionis to provide quality higher education so that graduating students can contribute to California's economy,culture, and future. (AR-20:20070.) Specific to SDSU,the campus is a critical component of the San Diego region’s higher education system, serving approximately 34,000 students during the 2006/2007 academic year. (AR-18:18206.) SDSU contributes a total of $2.4 billion annually in direct, indirect, and induced output into the San Diego regional economy from university and student spending, which equates to approximately $308 million in tax revenue. (AR-18:18207.) _ By 2025, SDSU_ will contribute approximately $4.5 billion in spending annually, and about $587 million to the regional tax base. (AR-18:18208-9.) In furtherance of its mission, in 2005, CSU approved a significant planned expansion of SDSU(the project) and certified an EIR for the project. (AR-5:4401, 4403-5; 15:14156.) The project’s Master Plan is designed to accommodate 20 years of campus development, and identifies buildings and facilities needed to facilitate that growth. (AR-15:14157-14160, 14240-14243; 19:18446, 18571-18572, 18644.) The project is intended to allow SDSU to meet projected increases in demand for higher education by increasing student enrollment and enhancing SDSU’s role as an outstanding undergraduate, graduate and research university in the San Diego area. (AR-15:14157.) As approved, the project entailed the construction of new academic, academic support and other buildings, and an expansion of student enrollment from 25,000 to 35,000 full-time equivalent students by the 2024/2025 academic year. (AR-1:89-109.) The City and others filed a petition in the Superior Court challenging the project’s EIR as inadequate under CEQA. (AR-15:14156.) B. CSUsets aside its original EIR in response to this Court’s decision in Marina, revises the project’s master plan and issues a new draft EIR. In 2006, while litigation challenging the project's EIR was pending, this Court issued its decision in Marina, which concerned CSU’s plans to expand another one of its campuses. (Marina, supra, 39 Cal.4th at pp. 341, 345.) In light of Marina’s holding that CSU wasobligated to attempt to mitigate off-site impacts, CSU set aside its earlier decision to certify its EIR and approve the SDSU project. (AR-15:14156.) Thetrial court entered judgmentconsistent with CSU’s action and issued a writ of mandate setting aside the 2005 EIR. (CT-3:753-756.) The court retained jurisdiction pending CSU’s revision of the SDSU project and preparation of anew EIR in compliance with CEQA. (lbid.) In 2007, CSU substantially revised its master plan for the project and prepared a new EIR.It released the draft EIR for public comment (AR-15:14163) and held numerous meetings to solicit comments about the project and the EIR from government agencies and the local community. (AR-19:18295-18358, 18359-18383, 18572-185733, 18667-18672, 18677-18680.) The draft EIR determined the project would result in significant impacts to certain roadways and intersections in the vicinity of the SDSU campus. (AR-15:14807, 14816-14847.) Roadway improvements wereidentified as the best way to mitigate the off-campus traffic impacts. (AR-15:14863-14872; 18:17593- 17602.) The draft EIR calculated CSU’s fair-share contribution percentages for each of the roadway improvement mitigation measures according to a formula used by the City. (AR-18:17593- 17602, 17603-17604.) C. The City and other government entities comment on the draft EIR. CSU’s efforts to negotiate its mitigation obligations fail. In its comments on the draft EIR, the City stated that CSU’s calculated fair-share contribution percentages were “unacceptable,” and that CSU should be responsible for 100 percent of certain roadway improvement costs. (AR-18:17152-17153, 17262.) CSU | attempted to negotiate with the City and other governmententities regarding the amount of CSU’s fair-share contribution for off-site mitigation. (AR-18:17151.) Though no agreement was reached, CSU acknowledged it was obligated to request funds from the Legislature to pay for traffic impact mitigation (AR-18:17151, 17162-17163, 17693-17705; 21:20339, 20349-20350) and ultimately requested $6,437,860 to fund off-campus roadway improvements. (AR-18:17153-4; 20:20052, 20064-20065.) This was not simply a one-time request. In recognition of its ongoing obligation under Marina to mitigate off- site impacts, in CSU’s five-year capital improvement program for 2008-09 through 2012-13, it placed particular emphasis on funding for off-site environmental mitigation efforts, including at SDSU. (AR-20:20053, 20055.) Since then, CSU has adopted additional capital improvement programsthat likewise recognize the ongoing need for legislative appropriations to fund mitigation of off-site environmental impacts. (CT-4:895-905.) And with regard to the SDSU project, CSU will seek off-site mitigation funding as necessary in connection with future EIRs prepared for specific projects under the Master Plan. The San Diego Association of Governments (SANDAG) asserted that, as a result of the project, CSU was responsible for approximately $193 million in_ regional transportation improvements, including improvements to transit (buses and trolleys). (AR-18:17158-17159; 17191-17192.) A trolley line operated by the San Diego Metropolitan Transit System (MTS) serves SDSU.! (AR-18:17231.) However, SANDAG offered no 1 SANDAGsuggested the EIR consider trolley use to help meet the travel demands associated with the project, reduce air quality impacts, and reduce parking demand. (AR-16:15271.) evidence the project would have significant transit impacts. (AR- 18:17159.) In response to SANDAQG’s request that the EIR address the MTStrolley system’s “capacitylimitations,” CSU considered the available information, which was based on SANDAG’s own published data, and concluded the project would result in no significant impacts on transit.2 (AR-18:17229-17232; 19:18517.) MTS waslargely silent regarding transit impacts until the day before CSU’s hearingto considerfinal approval of the project, when it submitted written comments. In those comments, MTS opined, without citation to evidence, that it was “unlikely” MTS could expandservice to support the draft EIR’s transit assumptions, and that an additional $27 million would be neededto serve future campusridership. (AR-27:22577-22578.) In response to SANDAG’s commentson the draft EIR, CSU added a mitigation measure, TCP-27, providing for the preparation of a Transportation Demand Management program (including such measures as the promotion of rideshare programs, transit use, vanpools and bicycles) in consultation with SANDAG and MTS. (AR-18:17237-17238; see also AR-17:17237-17239.) Because trolley ridership had not yet achieved its full potential, the EIR noted a comprehensive program was unnecessary in the near term. The EIR required that the program be implemented by the 2012/2013 academic year, “with the ultimate goal of reducing vehicle trips to 2 With regard to the project’s likely impact on transit use, the SDSU traffic engineer calculated that, over an 18 year period, the project would add a total of 6,898 trolley riders using the SDSU station by 2024/2025. (AR-15:14797.) 10 campusin favor of alternate modesoftravel.” (AR-18:17514, 17602; 19:18563.) D. CSU certifies the final EIR and approvesthe revised project. CSU completed the final EIR in November 2007. (AR- 17:16908-16914.) After a hearing and public testimony,it certified the final EIR as adequate under CEQA,approved the project and the corresponding increase in student enrollment, and approved $6,484,000 in off-campusfair-share mitigation funding for roadway improvements. (AR-19:18612-18615, 18617-18619, 18620.) CSU’s Trustees made findings under CEQA regarding the unavoidability of significant off-site impacts that stated, in relevant part: [B]ecause CSU cannot guarantee that its request... for the necessary mitigation funding will be approved, ..., or that the funding will be granted in the amount requested, or that the public agencies will fund the mitigation improvements that are within their responsibility and jurisdiction, the identified significant impacts are determined to be significant and unavoidable. (AR-19:18466, 18617, emphasis added.) CSU’s Board of Trustees also adopted a statement of overriding considerations in which it concluded the project’s overriding and substantial benefits outweighed its unavoidable environmental effects and, accordingly, the project should proceed. (AR-19:18522, 18618.) In addition to the expansion of educational 11 opportunities, by 2025, the project is expected to result in $4.5 billion in annual spending by SDSU,a contribution of $588 million to the regional tax base, and the addition of 22,800 jobs to the regional economy. (AR-18:17174-17175.) E. The City, SANDAG and MTSsue, challenging CSU’s certification of the final EIR and approval of the revised project. The Superior Court upholds the final EIR. In December 2007, the City and its Redevelopment Agency (collectively, the City), along with SANDAG and MTS, filed petitions for writs of mandate in the trial court challenging CSU’s certification of the final EIR and approval of the revised project. (CT-1:1-50.) The trial court upheld the final EIR, finding CSU had complied with its CEQA obligations as clarified in Marina. (CT- 7:1622-1653, 1662-1664.) The City, SANDAG and MTSappealed. F. The Court of Appeal reverses, holding CSU did not comply with its CEQA mitigation obligations and that CSU’s factual findingsin the final EIR were not supported by substantial evidence. On appeal, the City, SANDAG and MTSarguedthetrial court erred whenit concluded CSU had complied with CEQAbyfinding off-site impacts would be unavoidable if the Legislature failed to approve CSU’s request for funding, and by concludingthe final EIR 12 was not required to address potential alternative sources offunds to pay for off-site mitigation costs. (Typed opn., 14.) They also challenged CSU's factual findings, including the finding that the project would haveno significant impact on transit, and the finding that the Transportation Demand Management program was an appropriate way to achieve mitigation of increased traffic around the campus under CEQA. (Typed opn., 58, 62-63.) In an 83-page published opinion, the Court ofAppeal reversed and directed the trial court to issue a writ of mandate “ordering CSU to void its certification of the [final EIR] and adoption of [CSU’s factual findings] andto void its approval ofthe Project based on noncompliance with CEQA....” (Typed opn., 83.) The Court of Appeal rejected CSU’s reliance on this Court’s opinion in Marina that “a state agency’s powerto mitigate its project’s effects through voluntary mitigation paymentsis ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” (Marina, supra, 39 Cal.4th at p. 367.) It concluded the statementis “dictum becauseit was not necessary for the holding or disposition” and need not be followed. (Typed opn., 29.) The Court ofAppeal also observed that this Court’s statement “is not supported by any statute, regulation, case, or other authority.” (Typed opn., 32.) It then surmised that “had the California Supreme Court extensively addressed or analyzed the issue, Marina would have modified or qualified its dictum.” (/bid.) The Court of Appeal then held CSU erred by assumingits mitigation obligations were contingent on receiving funding from the Legislature, and likewise erred by concluding that, absent such 13 funding, off-site traffic impacts would be unavoidable. (Typed opn., 33, 35.) Instead, according to the Court of Appeal, CSU was required to address“[t]he availability ofpotential sources of funding other than the Legislature”in its draft andfinal EIR’s. (Typedopn., 33.) Moreover, “all of those potential sources should not be deemed ‘infeasible’ sources for CSU’s ‘fair-share’ funding . . . without a comprehensive discussion of those sources and compelling reasons showingthose sources cannot, as a matter of law, be used to pay for mitigation of the significant off-site environmental effects of the Project.” ([bid.) On this basis, the Court ofAppeal invalidated both CSU’sfinding that off-site traffic impacts would be unavoidable in the event the Legislature failed to appropriate funds, and the related statementofoverriding considerations. (Typed opn., 35-36.) The Court ofAppealalso rejected CSU’s factual findingsthat the project would haveno significant impact on transit, explaining “there is insufficient evidence in the administrative record to support CSU’s finding” and that those findings were based on “evidence that is clearly inaccurate or erroneous.” (Typed opn., 79, 82.) Finally, the Court of Appeal rejected CSU’s factual finding that the EIR’s mitigation measure TCP-27, providing for the implementation of a Transportation Demand Management program by 2012/2013, was a proper mitigation measure that would be effective to achieve its goal of reducing vehicle trips to the SDSU campus. (Typed opn., 61; see also AR-18:17514, 17602; 19:18563.) 14 LEGAL ARGUMENT REVIEW IS NECESSARY TO CLARIFY WHETHER A STATE AGENCY SATISFIES ITS CEQA OBLIGATIONS TO MITIGATE OFF-SITE ENVIRONMENTAL IMPACTS BY REQUESTING FUNDS FOR SUCH MITIGATION | FROM THE LEGISLATURE. In Marina, this Court held a state agency’s power to mitigate off-site impacts is subject to the Legislature’s control and, if the Legislature fails to appropriate fundsfor off-site mitigation, the power to mitigate does not exist. In Marina, this Court, in an opinion signed by six justices, decided whether CSU wasobligated to fund the mitigation ofoff-site environmental impacts of a campus development project. There, CSU had certified the project’s EIR, asserting that the off-site improvements were the exclusive responsibility of a local government agency, that such mitigation was infeasible because CSU could not legally contribute to such improvements, and the planned campus expansion offered overriding benefits that outweighed any unmitigated effects on the environment. (Marina, supra, 39 Cal.4th at p. 351.) This Court held CSU wasobligated to mitigate off-site impacts, and that if CSU could not do so directly, 15 paying another government entity “to perform the necessary actsoff campus may well represent a feasible alternative.” (Ud. at p. 367.) Critically, for purposes of this petition, this Court also explained: ‘“/A/ state agency’s power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist.” (Marina, supra, 39 Cal.4th at p. 367, emphasis added.) This Court’s explanation was based on two CEQA provisions. First, Public Resources Code section 21002.1, subdivision (b), requires all public agencies to mitigate significant effects when feasible to do so.? ([bid.; see also id. at pp. 349, 359, 360-361, 363 [noting CEQA provisions requiring mitigation only whenfeasible].) Second, section 21106 requiresall state agencies to request from the Legislature the funds necessary to protect the environmentrelative to their projects’ significant effects. (Marina, at p. 367.) Justice Chin wrote a separate concurring opinion in which he explained he did not join-the majority’s opinion partly because “it appears to suggest that a public agency lacks jurisdiction and responsibility within the meaningof [Public Resources Code] section 21081, subdivision (a)(2), when ‘the Legislature does not appropriate’ money requested to pay for mitigation measures.”4 3 All further statutory references are to the Public Resources Code. 4 Section 21081 requires that a public agency prepare written findingsfor a project’s identified significant environmental impacts, accompanied by a brief explanation of the rationale for the finding. Subdivision (a)(2) allows an agency to proceed with a projectif it (continued...) 16 (Marina, supra, 39 Cal.4th at p. 372 (conc. opn. of Chin, J.).) Justice Chin opined that the majority’s discussion of that issue was “dictum,” observing that CSU had not requested funds for such off- site mitigation from the Legislature and it was therefore “unnecessary and premature to express an opinion” on the issue. (Ibid.) Justice Chin also questioned the soundnessofthe majority's statement, suggesting that, regardless of whether the Legislature rejected CSU’s request for funds to pay for mitigation, CSU “arguably” still would have “responsibility and jurisdiction” under CEQAto contribute to off-site mitigation “with money from the CSU’s general operating fund” or from other sources. ([bid.) B. The Court of Appeal here created a conflict in the law by holding, contrary to this Court’s statements in Marina, that a state agency owes a duty to mitigate off-site impacts regardless of whether the Legislature appropriates funds for that purpose. Consistent with the Court’s holding in Marina, CSU here recognized its obligation under CEQAto mitigate the significantoff- site environmental impacts of the SDSU project and requested funds for such mitigation from the Legislature.® (AR-18:17151, (...continued) finds that mitigation of a significant effect is “within the responsibility and jurisdiction” of another public agency. 5 As previously noted, CSU also has recognized its ongoing obligation to fund such mitigation efforts and has incorporated (continued...) 17 17153-17154, 17162-17163, 17693-17705; 20:20052, 20064-20065; 21:20339, 20349-20350.) Further, based on the Court’s statements that CSU’s “power to mitigate its project’s effects through voluntary mitigation payments is ultimately subject to legislative control,” and “if the Legislature does not appropriate the money, the power does not exist” (Marina, supra, 39 Cal.4th at p. 367), CSU determinedoff-site traffic impacts to be unavoidable in the event the Legislature were to fail to appropriate those funds. (AR- 19:18466, 18617.) CSU further determined that, given the overriding considerations that outweighthe project’s significant and unavoidable environmental impacts, it should proceed. (AR- 19:18522, 18618.) On that basis, CSU certified the EIR and approved the revised project. ([bid.) In reversing thetrial court’s judgment and invalidating CSU’s findings, however, the Court ofAppeal rejected this Court’s views as stated in Marina, and instead applied the divergent reasoning of Justice Chin’s separate opinion. (See typed opn., 29-33.) Specifically, the Court of Appeal concluded this Court’s statement regarding the limits of a state agency’s power to mitigate off-site impacts through voluntary mitigation payments was “dictum,” and, in any event, unconsidered and erroneous. (Typed opn., 29, 32.) According to the Court of Appeal’s opinion, before finding mitigation infeasible CSU must first address “[t]he availability of potential sources of funding other than the Legislature” and (...continued) proposed appropriations for such programsintoits five-year capital improvement programs. (AR-20:20053, 20055; CT-4:895-905.) 18 demonstrate “compelling reasons showing those sources cannot, asa matter of law, be used to pay for mitigation of the significantoff-site environmental effects of the Project.” (Typed opn., 33.) On this point too, the opinion tracks Justice Chin’s stated views. (See Marina, supra, 39 Cal.4th at p. 372 (conc. opn. of Chin, J.) [CSU is required to contribute to off-site mitigation “with money from the CSU’s general operating fund” or from other sources].) C. The Court of Appeal’s decision is erroneous and improperly ignores this Court’s prior directive. In ruling that CSU has mitigation obligations beyond seeking appropriations from the Legislature, the Court of Appeal failed to appreciate the interplay between sections 21002.1, subdivision (b), and 21106 that this court recognized in Marina. Ifthe Legislature does not appropriate funds requested by a state agency pursuantto section 21106, mitigation is economically infeasible and, under section 21002.1, subdivision (b), the agency has no obligation to mitigate. “An appropriation is a legislative act setting aside “a certain sum of moneyfor a specified object in such mannerthat the executive officers are authorized to use that money and no morefor 93999 such specified purpose. (Quantification Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 799.) “{W]hen the Legislature fails to make an appropriation [the courts] cannot remedy that evil.” (Ud. at p. 800, quoting Myers v. English (1858) 9 Cal. 341, 349, disapproved on another ground in Mandel v. Myers (1981) 29 Cal.3d 531; see also Cal. Const., art. XVI, § 7.) The Court of 19 Appeal’s assertion that CEQA does not “preclude[] CSU... from using nonlegislatively appropriated funding” to pay for off-site mitigation (typed opn., 32-33) is therefore inconsistent with CEQA’s statutory scheme. Moreover, contrary to the Court ofAppeal’s view, this Court’s statement in Marina is not “dictum” but binding authority. This Court held the power to mitigate is subject to the Legislature’s control in the course of evaluating CSU’s off-site mitigation obligations. (Marina, supra, 39 Cal.4th at p. 367.) Accordingly, the observation wasan intrinsic part of this Court’s analysis and was necessary to its decision. (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1168.) By refusing to follow Marina, the Court of Appeal’s opinion underminesthis Court’s role as the final arbiter of California law. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“The decisionsof [the Supreme Court] are binding upon and mustbe followed by all the state courts of California”].) But even if the statement were dictum, as dictum of this Courtit commands “serious respect.” (Sheeler v. Greystone Homes, Inc. (2003) 113 Cal.App.4th 908, 919, fn. 6 [“Our Supreme Court’s decisions bind us, and its dicta command our serious respect”]; Hubbard, at p. 1169 [“Generally speaking, follow dicta from the California Supreme Court”}.) Indeed, by applying, sub silentio, the rationale of Justice Chin’s concurring opinion in Marina, rather than the six-justice majority’s opinion, the Court ofAppeal here has abrogatedthe well- settled rule that “[a] concurring opinion does not constitute authority under the doctrineof stare decisis. The majority opinion, 20 not the minority, states the law and constitutes the decision of the court which binds lower courts.” (People v. Superior Court (Persons) (1976) 56 Cal.App.3d 191, 194; accord, People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.) Finally, regardless of whether this Court’s statements in Marina are correct, lower courts and state agencies now have no way of knowing what California law might require with respect to mitigation of a project’s significant off-site environmental impacts. Review is therefore necessary to clarify state agencies’ obligations whenthe Legislature fails to appropriate funds for that purpose. Given the importance of the issue and the frequency with whichit arises, this Court should not wait.® It should take this opportunity to clarify California law. (Cal. Rules of Court, rule 8.500(b)(1) [review may be granted “[w]hen necessary to secure uniformity of decision or to settle an important question of law’].) 6 Indeed, CSU has another fully briefed appeal in the First District Court of Appeal raising precisely this issue. (See City of Hayward v. Board of Trustees of the California State University, Case No. A131412; Hayward Area Planning Association, et al. v. Board of Trustees of the California State University, Case No. A131413.) 21 Il. REVIEW IS NECESSARY TO CLARIFY THE STANDARD OF REVIEW FOR AGENCIES’ FACTUAL FINDINGS IN CEQA CASES BECAUSE THE COURT OF APPEAL’S PUBLISHED DECISION CONFLICTS WITH OTHERWISE SETTLED LAW. As required by CEQA, appellate courts have traditionally reviewed an agency’s decision to certify an EIR, like CSU’s decision here, under the abuse of discretion standard. (See Pub. Resources Code, § 21168.5; Marina, supra, 39 Cal.4th at p. 355.) “Abuse of discretion is established if the agency has not proceeded in a manner required by law orif the determination or decision is not supported by substantial evidence.” (Pub. Resources Code, § 21168.5.) The CEQA Guidelines define substantial evidence 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.” (Cal. Code Regs., tit. 14, § 15384, subd. (a); see Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 393 (Laurel Heights).) This standard commandsthat courts afford “much deference” to the factual and environmental conclusions made by the lead agency in its EIR. (Marina, supra, 39 Cal.4th at p. 355.) “In reviewingfor substantial evidence, the reviewing court ‘may not set aside an agency’s approvalof an EIR on the ground that an opposite conclusion would have been equally or more reasonable,’ for, on factual questions, our task ‘is not to weigh conflicting evidence and 22 299 determine whohasthe better argument.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435; Citizens for East Shore Parks v. California State Lands Com. (2011) __ Cal.App.4th __ [2011 WL 6848346,at pp. *7- *8] [upholding agencyfindings in EIR as supported by substantial evidence].) “T]he reviewing court must resolve reasonable doubts in favor of the administrative finding and decision.” (Laurel Heights, supra, 47 Cal.3d at p. 393.) A reviewing court “must uphold an EIR if there is any substantial evidence in the record to support the agency’s decision that the EIR is adequate and complies with CEQA.” (Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1265; Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1027 [“{[W]here substantial evidence supports the approving agency’s conclusion that mitigation measures will be effective, courts will uphold such measures against attacks based on their alleged inadequacy”}.) As we explain, the published decision of the Court of Appeal turns decades of seemingly settled law on its head. While payinglip service to the correct standard of review, the court repeatedly rejected the factual determinations CSU made in its EIR in a mannerbest described as second guessing a lead agency’s factual findings, in favor of a de novo review. This Court should therefore grant review to re-establish the uniform rule of deferential review of agencies’ factual determinations in CEQAcases. The factual finding regarding whetherotherfunds are available for off-site mitigation if the Legislature fails to 23 appropriate funds. In its EIR, CSU found that “because CSU cannot guarantee that its request... for the necessary mitigation funding will be approved, [by the Legislature]. . . the identified significant impacts are determined to be significant and unavoidable.” (See AR-19:18466, 18617.) The Court of Appeal, however, went outside the record to speculate that SDSU might “receive revenues or other funds from a myriad of sources,” including “tuition, student fees, revenue bonds, parking fees, and private donations,” and on that basis rejected CSU’s factual findings.? (Typed opn., 33.) The factualfinding regarding whethertheproject will have significant impacts on transit use. CSU made factual findings that the project would have nosignificant impact on transit based on the following from the administrative record: (1) thereis no evidence that the trolley line serving SDSU is presently operating at or near capacity (AR-18:17231; 24:521662); (2) an 7 Below, CSU wasnot afforded the opportunity to address potential alternative sources of funding because neither the City nor any other entity specifically raised the issue during the EIR certification process, and thus failed to exhaust its administrative remedies. (Pub. Resources Code, § 21177, subd.(a); Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912, 926.) The trial court so found. (CT- 7:1633-1634.) The Court of Appeal disagreed, improperly scouring the administrative record for an isolated place in which other sources of mitigation funding wasbriefly mentioned in internalstaff meeting agenda notes. On that basis alone, the Court of Appeal concluded that the “City, SANDAG and MTSmayrely on the above agenda of CSU’s staff to show they exhausted their administrative remedies and CSU had an opportunity to consider and addressthe issue whether there were alternative sources for funding its obligations under CEQA ...” (Typed opn., 42-45.) 24 economic report prepared by SDSU found the existing trolley station would have sufficient capacity to handle the projected increase in ridership (AR-18:18267); (3) CSU’s traffic engineer worked with SANDAGto assess trolley passenger volumes, but at no time did SANDAGexpress concern that the trolley line would be unable to cope with projected volumes (AR 15:14797; 17:16348, 16556-16557; 18:17231); (4) based on SANDAG’s estimates, the project would add only 383 trolley riders per year, an annual ridership increase of just six percent (see AR-15:14797; 17:16343; 18:17257-17258); and (5) the absence of specific documentation supporting SANDAG and MTS’s transit impact claims; documentation required to be provided under CEQA (see section 21104, subd. (c), and the Court of Appeal’s contrary finding, typed opn., 75, fn 22.). The Court of Appeal rejected this evidence based on its own independentevaluation, even going outsidethe record to review the contents of a website cited in the economicreport relied on by CSU andfinding it wanting. (See typed opn., 79-81 & fn. 25.) The factual finding that TCP-27 (the Transportation Demand Management program) would effectively mitigate traffic impacts. The following substantial evidence supported CSU’s factual finding that TCP-27 would be effective to mitigate the project’s traffic impacts: (1) preparation of the Transportation Demand Management program is mandatory; (2) the EIR includes a date certain—the 2012/2013 academic year—for the program’s implementation; (8) in formulating the program, the EIR requires CSU to consult with local and regional agencies responsible for transportation planning; (4) TCP-27 provides a framework for 25 implementing the program; and (5) TCP-27 sets an appropriate performance standard of “reducing vehicle trips to campusin favor of alternate modesof travel.” (See AR-18:17514, 17602; 19:18563.) In addition, TCP-27 is enforceable through the project’s Mitigation Monitoring and Reporting Plan. (See Pub. Resources Code, § 21081.6.) The Court of Appeal, however, ruled TCP-27 is an improper deferral of mitigation in violation of CEQA Guidelines section 15126.4(a)(1)(B). (Typed opn., 58-62.) In so ruling, the court necessarily second-guessed CSU’s factual findings regarding the lack of a present need for such a program, and the suitability of TCP-27 to meetits mitigation objectives. In short, this Court of Appeal opinion deviates from long- settled precedent regarding the appropriate application of the deferential standard of review for agency findings. Absent review by this Court, lower courts and public agencies will be forced to grapple with unsettled law on this important point. 26 CONCLUSION The Court ofAppeal’s published opinionis in outright conflict with this Court’s majority opinion in Marina. As a result, California law is in turmoil and state agencies have no clear guidance regarding the nature and extentoftheir off-site mitigation obligations under CEQA. This Court should grant review to provide uniformity of law on that important issue. The Court also should grant review to reconfirm the need for deferential review of agencies’ factual findings. January 20, 2012 HORVITZ & LEVY LLP JEREMY B. ROSEN BRADLEY 8S. PAULEY GATZKE DILLON & BALLANCE LLP MARKJ. DILLON MICHAEL 8S. HABERKORN DANIELLE K. MORONE edihe Bradle/S. Pauley Attorneys for Defendant and Respondent Board of Trustees of the California State University 27 CERTIFICATE OF WORD COUNT (Cal. Rules of Court, rule 8.504(d)(1).) The text of this petition consists of 5,944 words as counted by the Microsoft Word version 2007 word processing program used to generate thepetition. Dated: January 20, 2012 Bilb/vee, BradleyS. Rduley 28 Filed 12/13/11 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA CITY OF SAN DIEGOetal., D057446 Plaintiffs and Appellants, Vv. (Super. Ct. Nos. GIC855643, BOARD OF TRUSTEES OF THE GIC855701, . CALIFORNIA STATE UNIVERSITY, 37-2007-00083692-CU-WM-CTL, 37-2007-00083773-CU-MC-CTL, Defendant and Respondent. 37-2007-00083768-CU-TT-CTL) APPEALfrom ajudgment of the Superior Court of San Diego County, ThomasP. Nugent, Judge. Affirmed in part, reversed in part and remanded with directions. Jan I. Goldsmith, City Attorney, Donald R. Worley, Assistant City Attorney, and ChristineM. Leone, Chief Deputy City Attorney, for Plaintiffs and Appellants the City of San Diego and Redevelopment Agencyof the City of San Diego. John F. Kirk: the Sohagi Law Group, Margaret M. Sohagi, Philip A. Seymour, and Nicole H. GordonforPlaintiffs and Appellants San Diego Association of Governments and San Diego Metropolitan Transit System. Ronald W. Beals, Thomas C. Fellenz, David H. McCray, Brandon S. Walker and Elizabeth R. Strayer for State of California, Department of Transportation as Amicus Curiae on behalfof Plaintiffs and Appellants. Remy, Thomas, Moose & Manley, Sabrina V. Teller and Laura M. Harris for Leagueof California Cities and California State Association of Counties as Amicus Curiae on behalf of Plaintiffs and Appellants. Gatzke, Dillon & Ballance, Mark J. Dillon, Michael S. Haberkorn and Danielle K. Moronefor Defendant and Respondent. In 2005, the Board of Trustees of the California State University (CSU)certified an environmental impact report (EIR) and approveda project for the expansion of San Diego State University (SDSU). The project included the construction of new buildings and an increase in SDSU's student enrollment from 25,000 full-time equivalent students (FTES) to 35,000 FTESby the 2024/2025 academic year. During the pendency of litigation challenging the 2005 EIR certification and project approval, the California Supreme Court issued its opinion in City ofMarina vy. Board ofTrustees of California State University (2006) 39 Cal.4th 341 (Marina), which addressed certain issues involved in the 2005 SDSUEIRlitigation. In response to Marina,the trial court in 2006 entered judgment against CSU and issued a writ of mandate directing it to set aside its certification of the 2005 EIR and approval of the SDSU expansion project. The court retained jurisdiction of the matter until it determined CSU had complied with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)! (CEQA) and the views expressed in Marina. | In 2007, CSU revised its master plan for expansion of SDSU(the Project) and released a draft EIR (DEIR) for the Project. After receiving comments from the general public and governmental agencies, CSU prepareda final EIR (FEIR), respondingto those comments and revising the DEIR. In November 2007, CSU certified the FEIR and approved the Project, finding that because it might not obtain "fair-share" off-site mitigation funding from the Legislature and Governor, there are no feasible mitigation measures to reduce the Project's significant off-site traffic impacts to a less than significant level. Based in part on its finding that those significant off-site traffic impacts were unavoidable, CSU adopted a statement of overriding considerations, concluding the Project's benefits outweighed its unavoidable significant environmental effects, and then approvedthe Project. The City of San Diego and the Redevelopment Agency of the City of San Diego (together City), San Diego Association of Governments (SANDAG), and San Diego Metropolitan Transit System (MTS)filed petitions for writs of mandate challenging CSU's certification of the FEJR and approval of the Project. After consolidating the cases and hearing arguments of counsel, the trial court denied the petitions and discharged the 2006 writ, finding CSU had complied with Marina. It then entered judgment for CSU. 1 All statutory references are to the Public Resources Code unless otherwise specified. On appeal, City, SANDAG,and MTScontendthetrial court erred by: (1) concluding CSU complied with CEQA and Marina byfinding "fair-share" payments for mitigation of significant off-site environmental impacts were infeasible becauseitcould not guarantee the Legislature and Governor would approve the funding, and that the FEIR was not required to address potential alternative means of paying CSU's "fair- share" of those off-site mitigation costs; (2) concluding they could notraise those issues in the trial court because they did not raise them during the administrative proceedings (i.e., they failed to exhaust their administrative remedies); (3) denying their request for judicial notice of certain documents pertaining to the issue of whether CSU complied with CEQA and Marina; (4) concluding the FEIR did noterr in calculating the increased vehicle traffic caused by the Project's increased student enrollment; (5) concluding CSU did not improperly defer adoption of mitigation measures to reduce vehicletraffic; and (6) concluding the FEIR adequately addressed the Project's potential impacts on transit and that there is substantial evidence to support CSU'sfinding the Project will not cause any significant effect on public transit (e.g., trolley and busfacilities and service). For the reasons discussed below, we concludethe trial court erred in denying the petitions and the request for judicial notice and in discharging the 2006 writ. FACTUAL AND PROCEDURAL BACKGROUND The SDSU campusis located in The City of San Diego along the southern rim of Mission Valley. The campus consists of about 280 acres with the following general boundaries: Montezuma Road on the south, East Campus Drive onthe east, 55th Street and Remington Road on the west, and Adobe Falls Road (north of Interstate 8) on the 4 north. In 2005, CSU certified an EIR and approved a project for the expansion of SDSU. During the pendencyoflitigation challenging that 2005 EIR certification and project approval, the California Supreme Court issued its opinion in Marina. In responseto Marina,in 2006 thetrial court entered judgment against CSU, issued a writ of mandate directing it to set aside its certification of the 2005 EIR and approval of the project, and retained jurisdiction of the matter until it determined CSU had complied with CEQA and Marina. In February 2007, toward its continuing goal of expanding SDSU's enrollment, CSUprepared a new notice of preparation and initial study (NOP)andcirculatedit for public comment. In June, after receiving public comments on the NOP, CSU prepared the DEIR. As described in the DEIR,the Project is CSU's master plan for expansion of SDSUthrough the 2024/2025 academic year by increasing student enrollment from 25,000 FTES to 35,000 FTES (equal to an actual increase of 11,385 students) and developing six components: (1) additional on-campus student housing(i.e., an additional 2,976 beds); (2) between 172 and 348 condominium and/or townhouse units on the 33- acre AdobeFalls site for SDSU faculty and staff housing; (3) a 120-room hotel on its Alvarado Road site: (4) 612,000 square feet of new building space on its Alvarado Road site for academic, research, and/or medical use and a 552,000 square foot parking structure; (5) renovation and expansion ofthe student union building; and (6) a 70,000 square foot campus conference center for meetings, conferences, office space, and food and retail services. The DEIRstates the proposed increase in student enrollmentwill require the hiring of 691 additional faculty members and 591 additional staff members. 5 The Project will result in a total of 12,667 additional students, faculty, and staff on the SDSU campusby the 2024/2025 academic year.2 The DEIR discussed the Project's potential significant environmental impacts and mitigation measures and alternatives that would reduce or avoid those impacts. CSU circulated the DEIR for public comment from June 12, 2007, through July 27, 2007. CSU held multiple community meetings to present the DEIR and the Project, and receive comments. CSU received about 87 commentletters on the DEIR from residents wholive in neighborhoods that would be affected by the Project; other members of the public; and federal, state, and local governmental agencies, including City and SANDAG. CSUthen prepared the FEIR, which attached the commentletters, responded | to them, and revised the DEIR. On November13 and 14, 2007, CSU held a public meeting on the FEIR. Representatives of City, SANDAG, MTS,and the State of California Department of Transportation (Caltrans) and members of the public expressed concerns regarding the FEIR and the Project. CSU then adopted findings of fact (Findings) and the mitigation measuresset forth in the mitigation monitoring and reporting program (MMRP). In the Findings, CSU found the FEIR identified potentially significant effects that could result from implementation of the Project, and inclusion of mitigation measures as part of approval of the Project would reduce most, but notall, of those effects to less than 2 This total is the sum of 11,385 additional students, 691 additional faculty, and 591 - additionalstaff. significant levels. However, as to those significant impacts that are unavoidable even after incorporating all feasible mitigation measures, CSU found the benefits of the Project outweighed those unavoidable significant impacts. CSU expressly found the Project would have "[n]o significant impacts on transit systems." CSU approved resolutions stating: "7, A portion of the mitigation measures necessary to reducetraffic impacts to less than significant are the responsibility of and under the authority of the City .... The City and [CSU] have not cometo agreement. [CSU] therefore cannot guarantee that certain mitigation measuresthat are the sole responsibility of the City will be timely implemented. [CSU] therefore finds that certain impacts upon traffic may remain significant and unavoidable if mitigation measures are not implemented, and adopts Findings of Fact that include specific Overriding Considerations that outweigh the remaining potential unavoidable significant impacts with respect to traffic and transit that are not under the authority and responsibility of [CSU]. "8. ... [CSU] herebycertifies the FEIR for the [Project] as complete and adequate in that the FEIR addressesall significant environmental impacts of the [Project] and fully complies with the requirements of CEQA and the CEQA Guidelines. . . . "9. It is necessary, consistent with [Marina], for CSU to pursue mitigation funding from the [L]egislature to meet its CEQA fair- share mitigation obligations. The chancellor is therefore directed to request from the [Governor andthe [L]egislature, through the annual state budget process, the future funds ($6,484,000) necessary to support costs.as determined by [CSU] necessary to fulfill the mitigation requirements of CEQA. "10. In the event the request for mitigation funds is approvedin full, the chancelloris directed to proceed with implementation of the [master plan for the Project]. Should the request for funds only be partially approved, the chancellor is directed to proceed with implementation of the [P]roject, funding identified mitigation measures to the extent of the available funds. In the event the request for funds is not approved, the chancelloris directed to 7 proceed with implementation of the [P]roject consistent with resolution number 11 below. "11. Because [CSU] cannot guarantee that the request to the [L]egislature for the necessary mitigation funding will be approved, or that the local agencies will fund the measures that are their responsibility, [CSU]finds that the impacts whose[sic] fundingis uncertain remain significant and unavoidable, and that they are necessarily outweighed by the Statement of Overriding Considerations adopted by [CSU]." CSUcertified the FEIR and approved the Project. It then issued a notice of determination regardingits findings and actions. In December 2007, City, SANDAG andMTSfiled separate petitions for writs of mandate challenging CSU'scertification of the FEIR and approvalof the Project. The trial court subsequently consolidated the cases. CSU filed a motion to discharge the 2006 writ. In February 2010,the trial court issued a statement of decision rejecting all of the claims asserted by City, SANDAG and MTS. In March 2010, the court entered judgment for CSU, denying the petitions for writs of mandate filed against it and discharging the 2006 writ. The court found CSU had metthe requirements of CEQA and Marina. City, SANDAGand MTStimely filed notices of appeal challenging the judgment.3 3 Wegranted the requeststo file, and have considered, amicus curiae briefs filed by Caltrans and by the League of California Cities and California State Association of Counties. We also have considered CSU's responsesto those amicusbriefs. In support of CSU's response to Caltrans's amicus brief, CSU filed a motion requesting that we take judicial notice of certain documents pertaining to Caltrans andits capital improvement program for transportation projects. Because Caltransis not a party to this appeal and those documents are irrelevant and unnecessary to our disposition of this case, we exercise our discretion and deny CSU's request for judicial notice. DISCUSSION I Standard ofReview The abuseof discretion standard of review applies to our review of CSU's compliance with CEQAin the circumstances of this case. Section 21168.5 provides: "In any action or proceeding, other than an action or proceeding under Section 21168, to attack, review, set aside, void or annul a determination, finding, or decision of a public agency on the grounds of noncompliance with this division, the inquiry shall extend only to whether there wasa prejudicial abuse of discretion. Abuse of discretion is established if the agency has not proceeded in a manner required by law orif the determination or decision is not supported by substantial evidence." "An appellate court's review of the administrative record for legal error and substantial evidence in a CEQAcase,as in other mandamuscases, is the sameasthe trial court's: The appellate court reviews the agency's action, not the trial court's decision; in that sense appellate judicial review under CEQAis de novo. [Citations.] We therefore resolve the substantive CEQAissues on which we granted review by independently determining whether the administrative record demonstrates any legal error by the [public agency] and whetherit contains substantial evidence to support the [public agency's] factual determinations." (Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4th 412, 427 (Vineyard).) We review de novo,or independently, the question whether CSU committed any legal error under CEQA(i.e., did not "proceed[] in a manner required by law") in preparing and certifying the FEIR and approving the Project. (§ 21168.5.) When a public agency does not comply with procedures required by law,its decision must be set aside as presumptively prejudicial. (Sierra Club v. State Bd. ofForestry (1994) 7 Cal.4th 1215, 1236 (Sierra Club).) | Noncompliance by a public agency with CEQA's substantive requirements or noncompliance with its information disclosure provisions that preclude relevant information from being presented to the public agency "constitute[s] a prejudicial abuse of discretion within the meaning of Sections 21168 and 21168.5, regardless of whether a different outcome would haveresulted if the public agency had complied with those provisions." (§ 21005, subd. (a); County ofAmador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 946.) "In other words, when an agencyfails to proceed as required by CEQA, harmlesserror analysis is inapplicable. The failure to comply with the law subverts the purposes of CEQAif it omits material necessary to informed decisionmaking and informed public participation." (County ofAmador,at p. 946.) Weapply the substantial evidence standard of review to a public agency's "conclusions, findings, and determinations, andto challenges to the scope of an EIR's analysisof a topic, the methodology used for studying an impact, andthereliability or accuracy of the data upon which the EIR relied because these types of challenges involve factual questions." (City ofLong Beach v. Los Angeles Unified School Dist. (2009) 176 Cal.App.4th 889, 898.) "Substantial evidence" is defined in the CEQA guidelines 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 mightalso 10 be reached." (Cal. Code Regs., tit. 14, § 15384, subd. (a).)4 "The agencyis the finder of fact and we must indulge all reasonable inferences from the evidence that would support the agency's determinations and resolveall conflicts in the evidence in favor of the agency's decision." (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117.) However, "[a]rgument, speculation, unsubstantiated opinion ornarrative, evidence whichis clearly inaccurate or erroneous ... 18 not substantial evidence. Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts." (§ 21082.2, - subd. (c); Guidelines, § 15384.) U CEQA Generally CEQA generally requires preparation and certification of an EIR by a lead public agency on any proposedproject that may have a significant effect on the environment. (§§ 21080, subd. (d), 21082.2, subd. (d), 21100, subd. (a), 21151.) The EIR must describe, in detail, all the significant effects on the environmentof the project. (Sunnyvale West NeighborhoodAssn. v. City ofSunnyvale City Council (2010) 190 Cal.App.4th 1351, 1372 (Sunnyvale).) "In evaluating the significance of the environmental effect of a project, the lead agency shall consider direct physical changes. in the environment which may be caused bythe project and reasonably foreseeable 4 All regulatory citations are to title 14 of the California Code of Regulations (Guidelines). 11 indirect physical changes in the environment which maybe caused bythe project." (Guidelines, § 15064, subd. (d).) "CEQA compels governmentfirst to identify the environmental effects of projects, and then to mitigate those adverse effects through the imposition of feasible mitigation measures or throughthe selectionof feasible altematives. It permits government agencies to approve proj ects that have an environmentally deleterious effect, but also requires them to justify those choices in light of specific social or economic conditions. (§ 21002.)" (Sierra Club, supra, 7 Cal.4th at p. 1233.) "With narrow exceptions, CEQA requires an EIR whenever a public agency proposes to approveorto carry out a project that may havea significant effect on the environment. [Citations.] 'Project!' means, among other things,'[a]ctivities directly undertaken by any public [agency]' [or an activity undertaken by a personthatis supported, in whole or in part, through contracts or other forms of assistance from one or more public agencies]. [Citation.]... The Legislature has madeclear that an EIR is 'an informational document' and that '[t]he purpose of an environmental impactreport is to provide public agencies and the public in general with detailed information about the effect which a proposedproject is likely to have on the environment; to list ways in whichthe significanteffects of such a project might be minimized; andto indicate alternatives to such a project." (Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 390-391, fn. omitted (Laurel Heights).) "Under CEQA,the public is notified that a draft EIR is being prepared[citations], and the draft EIR is evaluated in light of comments received. [Citations.] The lead 12 agency then prepares a final EIR incorporating comments on the EIR and the agency's responsesto significant environmental points raised in the review process. [Citations.] The lead agency mustcertify that the final EIR has been completed in compliance with CEQA andthat the information in the final EIR was considered by the agency before approvingthe project. [Citation.] Before approving the project, the agency must also find either that the project's significant environmental effects identified in the EIR have been avoided or mitigated, or that unmitigated effects are outweighed by the project's benefits." (Laurel Heights, supra, 47 Cal.3d at p. 391, fn. omitted.) "If CEQAis scrupulously followed, the public will know the basis on whichits responsible officials | either approveor reject environmentally significant action, and the public, being duly informed, can respondaccordingly to action with whichit disagrees. [Citations.] The EIR process protects not only the environmentbut also informed self-government." (/d. at p. 392.) | "[T]he ultimate decision of whether to approve a project, be that decision right or wrong,is a nullity if based upon an EIR that does not provide the decision-makers, and the public, with the information about the project that is required by CEQA." (Santiago County Water Dist. v. County ofOrange (1981) 118 Cal.App.3d 818, 829.) In City of Santee v. County ofSan Diego (1989) 214 Cal.App.3d 1438, we stated that "only through an accurate view of the project may the public and interested parties and public agencies balance the proposed project's benefits against its environmental cost, consider appropriate mitigation measures, assess the advantages of terminating the proposal and properly weighotheralternatives ...." (dd. at p. 1454.) Ifa final EIR does not 13 "adequately apprise all interested parties of the true scopeof the project for intelligent weighing of the environmental consequencesofthe project," informed decisionmaking cannot occur under CEQA andthe final EIR is inadequate as a matter of law. (id. at pp. 1454-1455.) Under CEQA,a public agencyis required to mitigate or avoid the significant environmental effects of a project that it carries out or approvesifit is feasible to do so. (§ 21002.1, subd. (b); Marina, supra, 39 Cal.4th at p. 359.) Measures to mitigate significant environmental effects adopted by the agency must be fully enforceable. (§ 21081.6, subd. (b).) "A public agency shall provide that measures to mitigate or avoid significant effects on the environmentare fully enforceable through permit conditions, agreements, or other measures... ." (Ibid.) Ul Marina and Mitigation ofSignificant Off-site Environmental Impacts City, SANDAGand MTScontendthetrial court erred by concluding CSU complied with CEQA and Marina by finding "fair-share" payments by CSU for mitigation of the Project's significant off-site environmental impacts were infeasible because CSU could not guarantee the Legislature and Governor would approve mitigation funding and by concluding the FEIR wasnot required to address potential alternative means of paying CSU's "fair-share" of off-site mitigation costs. A The DEIRidentified and discussed the Project's potentially significant off-site traffic impacts to certain street intersections, street segments, freeway ramps, and freeway 14 mainline segments. For each of those potentially significant traffic impacts, the DEIR recommendedspecific mitigation measures, which primarily consisted of contributions to City of CSU's fair share of costs of implementing those mitigation measures(e.g., improvements to City street intersections and segments). Asto each ofthe 34traffic mitigation measures, the DEIR calculated CSU's respective "fair-share" percentage (ranging from 1 percent to 39 percent) of the total cost of that mitigation measure. With implementation of the proposed mitigation measures, the DEIR concludedall of the specific traffic impacts would be reducedto a level below significant, except for four specific impacts that would remain significant and unavoidable. Regarding CSU's mitigation measures, the DEIR stated: "Fair-share mitigation is recommendedthat would reduce the identified impacts to a level below significant. However, [CSU's] fair-share funding commitmentis necessarily conditioned [on] requesting and obtaining funds from the California Legislature. If the Legislature does not provide funding, orif funding is significantly delayed,all identified significant impacts would remain significant and unavoidable." In letter dated July 27, 2007, City commented on the DEIR,restating many of the concernsit raised in its prior letter commenting on the NOP. City stated the DEIR's traffic impact analysis was "fatally flawed becauseit does not guarantee the implementation ofthetraffic mitigation measures it proposes." City disagreed with CSU's interpretation ofMarina reflected in a quoted statement.from the DEIR that CSU's "fair-share funding commitmentis necessarily conditioned up[on] requesting and obtaining funds from the California Legislature. If the Legislature does not provide 15 funding,or if funding is significantly delayed, all identified significant impacts would remain significant and unavoidable." (Underscoring added by City.) City quoted _ language from Marina on which CSU apparently relied and argued that language was "pure dictum." City asserted the DEIR "fails because [CSU] disingenuously attempt[s] to.dodgetrue responsibility [for mitigation of the Project's significant impacts] by relying on dicta in [Marina]." In the FEIR, CSU responded to comments by City and others criticizing CSU's interpretation ofMarina andits interpretation of its obligation under CEQAto discuss ° and propose measuresto mitigate the Project's significant off-site traffic environmental impacts. The FEIR stated: "The following are the requisite principles established by [Marina], | relative to the [Project] and [FEIR]: [J] .. . [J] "[CSU]is obligated to request funding from the Legislature for mitigation, including fundsfor its local agency fair-share mitigation costs. [Citation.] "However, the power of [CSU] to mitigate the [P]roject's effects through voluntary mitigation paymentsis ultimately subject to legislative control; if the Legislature does not appropriate the money, the power doesnot exist. [Citation.] "Thus, if the Legislature does not fund [CSU's] fair share, [CSU] has the authority to adopt a statement of overriding considerations and proceed with the [P]roject. [Citation.]"_ 5 As wediscuss in more detail below,that languagestates: "[A] state agency's powerto mitigate its project's effects through voluntary mitigation paymentsis ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does not exist." (Marina, supra, 39 Cal.4th at p. 367.) 16 Citing Marina, CSU's response further stated: "[T]he [FEIR] proposesa series of mitigation measures that requires [CSU], subject to funding by the state Legislature, to contribute its ‘fair share’ of the costs required to improve existing infrastructure, as needed. [Citation.]... Further, the [FEIR] determined that impacts related to traffic and circulation would be significant and unavoidablein light of the potential for the Legislature to deny CSU's or Caltrans'[s] funding requests, or to grant less funding than requested, or to delay receipt of the funds." CSUfurther stated: "Consistent with [Marina], upon project approval by [CSU], the CSU Chancellor will request from the Governorandthe state Legislature, through the annual State Budget process, the funds necessary to fulfill the mitigation requirements of CEQA,as determined by [CSU]. [§] .. . [4] "If the Legislature approves the CSU funding request, or a portion of that request, it is anticipated the appropriated funds will be provided to [City] and the City ofLa Mesa in annual amounts corresponding to actual annual enrollment growth, provided that each entity identifies a fundortraffic impact fee program assuring that the funds will be expendedsolely in furtherance of the subject roadway improvements. "Because CSU cannot guarantee that its request to the Governor and the Legislature for the necessary mitigation funding will be approved, or that Caltrans'[s] request for funding will be approved, or that funding will be granted in the amount requested, or that the public agencies will fund the mitigation improvements that are within their responsibility and jurisdiction, if the [P]rojectis approved, CSU will find that the impacts whose[sic] funding is uncertain remain significant and unavoidable, and CSU will adopt a statement of overriding considerations pursuant to CEQA." The FEIR madecertain revisions to the DEIR,including a statement that its proposedtraffic mitigation measures are consistent with Marina. As to many,if not most, of the specific traffic mitigation measures, the FEIR qualified CSU's obligation to 17 contribute to City its fair share of mitigation costs by including the prefatorylanguage "[s]ubject to funding by the state Legislature." The FEIR also listed its proposed fair- share percentage contribution, ranging from * percent to 39 percent, toward the cost of each ofthe 34 specific off-site traffic mitigation measures. Although the FEIR concluded the Project "would result in significant impacts at various intersections, freeway interchanges and mainline segments" and recommended CSU pay “fair-share" mitigation to reduce those impacts below a level of significance, it concluded CSU's "fair-share funding commitmentis necessarily conditioned upon requesting and obtaining funds from the California Legislature for those impacts within the jurisdiction of local agencies, and Caltrans obtaining funds from the Legislature for those impacts within its jurisdiction. If the Legislature does not provide funding,or if fundingis significantly delayed,all identified significant impacts would remain significant and unavoidable." The FEIR then cited its response to comments onits interpretation ofMarina. CSU adopted the Findings and the mitigation measures set forth in the MMRP. In the Findings, CSU found the FEIR identified potentially significant effects that could result from implementation of the Project, but inclusion of mitigation measuresas part of approvalofthe Project would reduce most, butnotall, of those effects to less than significant levels. | However, the Findings stated: "Because CSU's request to the Governor and the Legislature, made pursuant to [Marina],for the necessary mitigationfunding may not be approved in wholeorin part, or because any funding request submitted by Caltrans may not be approved, and, becausethe local public agencies may not fund the mitigation improvements that are within their responsibility and jurisdiction, even if state funding is obtained, [CSU] finds there are nofeasible mitigation measuresthat 18 would reducethe identified significant impacts to a level below significant. Therefore, these impacts must be considered unavoidably significant even after implementation ofall feasible transportation/circulation and parking mitigation measures." (Italics added.) Furthermore, as to those significant impacts that are unavoidable even after incorporating all feasible mitigation measures, CSU found the benefits of the Project outweighed those unavoidable impacts. CSU approvedresolutionsstating that: "7, A portion of the mitigation measures necessary to reducetraffic impacts to less than significant are the responsibility of and under the authority of the City .... The City and [CSU] have not cometo agreement. [CSU] therefore cannot guarantee that certain mitigation measuresthat are the sole responsibility of the City will be timely implemented. [CSU] therefore finds that certain impacts upon traffic may remain significant and unavoidable if mitigation measures are not implemented, and adopts Findings of Fact that include specific Overriding Considerations that outweigh the remaining, potential, unavoidable significant impacts with respect to traffic and transit that are not under the authority and responsibility of [CSU]. "8. ... [CSU] herebycertifies the FEIR for the [Project] as complete and adequate in that the FEIR addressesall significant environmental impacts of the [Project] and fully complies with the requirements of CEQA and the CEQA Guidelines.. . . "9. It is necessary, consistent with [Marina], for CSU to pursue mitigation funding from the [L]egislature to meet its CEQA fair- share mitigation obligations. The chancellor is therefore directed to request from the [G]overnor and the [L]egislature, through the annual state budget process, the future funds ($6,484,000) necessary to support costs as determined by [CSU] necessary to fulfill the mitigation requirements of CEQA. "10. In the event the request for mitigation funds is approvedin full, the chancellor is directed to proceed with implementation ofthe [master plan for the Project]. Should the request for funds only be partially approved, the chancellor is directed to proceed with implementation of the [P]roject, funding identified mitigation 19 measures to the extent of the available funds. In the event the request for funds is not approved,the chancelloris directed to proceed with implementation of the [P]roject consistent with resolution number11 below. "11. Because [CSU] cannot guarantee that the request to the © [Legislature for the necessary mitigation funding will be approved, or that the local agencies will fund the measuresthat are their responsibility, [CSU] finds that the impacts whose[sic] fundingis uncertain remain significant and unavoidable, and that they are necessarily outweighed by the Statement of Overriding Considerations adopted by [CSU]." CSUcertified the FEIR and approved the Project. In denying City's subsequentpetition for writ of mandate and discharging the 2006 writ, the trial court issued a statement of decision, stating in part: "[Marina] did not rule out the possibility that a voluntary payment negotiated . . . for the purpose of mitigating specified environmental effects would not satisfy [CSU's] CEQA obligations as to such effects. In reliance on this opinion, CSU negotiated with the City and Caltrans to determineits fair share of the offsite improvements. CSU then requested the necessary funds from the Legislature and[,] in doing so, complied with the mandate of [Marina]. [J]... [9] "Petitioners suggest that CSU must discuss other methods to fund mitigation measures, such as non-state funded revenue bondsor reducing the scope ofthe [P]roject. [Marina] does notso hold. Further, such arguments werenotraised in the underlying proceedings and cannot be raised now. ... Here, Petitioners cited to several commentletters .... [H]owever, the alternative funding claims were notraised in these commentletters. [J]. . . [] "The Court finds that CSU has met the requirementsof [Marina] and CEQA. The 2006 writ is discharged." B In Marina, the California Supreme Court addressed CSU's obligations under CEQAto discuss in an EIR measuresto mitigate the significant off-site environmental 20 impacts of a project involving the expansion of its Monterey Bay campus (CSUMB) on Fort Ord, a former United States Army base, to accommodate an increase in enrollment from 3,800 students to 25,000 students by 2030. (Marina, supra, 39 Cal.4th at pp. 345- 346, 348.) The Fort Ord Reuse Authority (FORA) wascreated by the Legislature to manage the transition of the former Fort Ord baseto civilian uses, including residential housing, business, light industry, research and development, recreation, and education. (Ud. at p. 346.) The Legislature gave FORA the powerand duty to prepare the base's infrastructure for development for those civilian uses. (Id. at p. 347.) FORA's capital improvementplans included construction of infrastructure for transportation (eg, roadways), water supply, and wastewater management. ([bid.) The Legislature directed FORA to arrange its own financingfor those infrastructure improvements,rather than through legislative appropriations. (/bid.) In its EIR for the expansion of CSUMB,CSU identified many significant environmental effects of the project and adopted specific mitigation measures that would mitigate most of those effects to a level of less than significant. (Marina, supra, 39 Cal.4th at p. 349.) However, because full mitigation of certain significant effects, including off-site traffic impacts, would require action by both CSU and FORA,the EIR did not provide for mitigation of those effects. (/d. at pp. 349-351.) Nevertheless, FORA's own planning documents included plans for infrastructure improvements that would fully mitigate the remaining effects of CSU's expansion of CSUMB.(dd.at p. 351.) In so doing, FORA assumed CSUMB would payits share of the cost of the infrastructure improvements. (/bid.) However, CSU refused to contribute any funds to 21 FORA for road andfire protection improvements. (/bid.) CSU certified the EIR and approvedthe project despite the remaining unmitigated effects, finding (as Marina paraphrases) that "(1) improvements to roads and fire protection are the responsibility of FORA rather than of [CSU]; (2) mitigation is infeasible because [CSU] may notlegally contribute funds toward these improvements; and (3) the planned expansion of CSUMB offers overriding benefits that outweigh any remaining unmitigated effects on the environment." (Jbid., fn. omitted.) FORA andthe City of Marinafiled separate petitions for writs of mandate challenging CSU's certification of the EIR, alleging that CSU "had (1) failed to identify and adopt existing, feasible measures to mitigate significant effects on the environment described in the EIR, (2) improperly certified the EIR and approvedthe [project] despite the availability of feasible mitigation measures, (3) improperly disclaimed responsibility for mitigating CSUMB's environmental effects, and (4) improperly relied on a statement of overriding considerationsto justify certifying the EIR and approving the [project]." (Marina, supra, 39 Cal.4th at p. 354.) Thetrial court granted the petitions and issued a writ of mandate directing CSUto vacate its actions and set aside the EIR's statement of overriding considerations. (Jd. at pp. 354-355.) On appeal, the court of appeal reversed the judgment. (/d. at p. 355.) The California Supreme Court granted FORA's petition for review. (lbid.) In Marina, the court defined the question before it as "whether [CSU] ha[s] properly certified the EIR for CSUMBand, on that basis, approved the [project]." (Marina, supra, 39 Cal.4th at p. 355.) FORA contended CSU's certification of the EIR 22 must be vacated because three ofits underlying findings were based on the erroneous legal assumption that the California Constitution precluded it from contributing fundsto FORA for mitigation of the project's environmental effects. (/bid.) Thefirst two of CSU's findings were that (1) CSU cannot feasibly mitigate those significant effects, and (2) mitigation of those effects was not CSU's responsibility. (/bid.) Those two findings required the third finding that overriding considerations outweighed the remaining unmitigated effects and justified certification of the EIR and approvalof the project. (bid.) The Supreme Court in Marina agreed with FORA. (/bid.) The court stated: "[A]n EIR that incorrectly disclaims the power and duty to mitigate identified environmental effects based on erroneous legal assumptionsis not sufficient as an informative document." (/d. at p. 356.) Regardingthefirst issue, Marina rejected CSU's claim that mitigation of significant off-site effects was infeasible. (Marina, supra, 39 Cal.4th at pp. 356-366.) The court held the California Constitution did not preclude voluntary mitigation payments by CSU because they do not constitute compulsory charges or assessments withoutlegislative authority. (Ud. at pp. 356-359.) Marinastated: "CEQArequires [CSU] to avoid or mitigate, if feasible, the significant environmental effects of their project (... § 21002.1, subd. (b)) and... payments to FORA mayrepresenta feasible form of mitigation. Toillustrate the point, if campus expansion requires that roads or sewers be improved, [CSU] may do the work[itself] on campus, but[it has] no authority to build roads or sewers off campus on land that belongs to others. Yet [CSU is] not thereby excused from the duty to mitigate or avoid CSUMB's off-campuseffects on traffic or wastewater management, because CEQA requires a public agency to mitigate or avoid its projects’ significant effects not just on the agency's own property, but 'on the environment(... § 21012.1, 23 subd.(b), italics added), with ‘environment' defined for these purposesas 'the physical conditions which exist within the area which will be affected by a proposedproject' (id., § 21060.5,italics added). Thus, if [CSU] cannot adequately mitigate or avoid CSUMB's off-campus environmental effects by performing acts on campus(as by reducing sufficiently the use of automobiles or the volume of sewage), then to pay a third party such as FORA to perform the necessary acts off campus may well represent a feasible alternative. A payment made under these circumstances can properly be described neither as compulsory nor, for that reason, as an assessment." (Marina, supra, 39 Cal.4th at pp. 359-360.) Marina held: "[N]o rule precludes a public entity from sharing with another the cost of improvements benefiting both. Furthermore, while education may be CSU's core function, to avoid or mitigate the environmentaleffects of its projects is also one of CSU's functions. This is the plain import of CEQA,in which the Legislature has commandedthat '[e]ach public agency shall mitigate or avoid the significant effects on the environmentofprojects that it carries out or approves wheneverit is feasible to do so." (Marina, supra, 39 Cal.4th at pp. 360-361.) Marina also held that a payment by CSU for mitigation ofits project's environmental effects "would not constitute an unlawful gift of public funds" (Marina, supra, 39 Cal.4th at p. 363, italics added) because those payments would be used for "the public purpose of discharging [its] duty as a public agency, under the express terms of CEQA,to 'mitigate or avoid the significant effects on the environment. . . wheneverit is feasible to do so." (Ud. at p. 372.) Marina also rejected CSU's assertion that mitigation of its expansion of CSUMB wasinfeasible becauseit could not guarantee that FORA would actually implement the proposedinfrastructure improvements. (Marina, supra, 39 Cal.4th at p. 363.) CSU 24 foundin its EIR that the off-site mitigation measures were not feasible because implementation of those measures wasdisputed and therefore mitigation ofthe effects to less than significant levels could not be assured. (Ibid.) Marina concluded: "The _ presently identified, unavoidable uncertainties affecting the funding and implementation of the infrastructure improvements FORA hasproposed in its Reuse Plan do not render voluntary contributions to FORA by [CSU]infeasible as a method of mitigating CSUMB's effects. Both the CEQA Guidelines and judicial decisions recognize that a project proponent maysatisfy its duty to mitigate its own portion of a cumulative environmental impact by contributing to a regional mitigation fund. ... [Clourts have foundfee-based mitigation programsfor cumulative impacts, based onfair-share infrastructure contributions by individual projects, to constitute adequate mitigation measures under CEQA." (Id. at p. 364, italics added.) Although the court cautioned that a commitment to pay fair-share fees without any evidence the mitigation would actually occur would be inadequate, it concluded "[t]here is . . . no reason to doubt that FORA will meetits statutory obligation" to construct the public capital facilities necessary for civilian development. (/d. at p. 365.) CEQArequires only a reasonable plan for mitigation and not a time-specific schedule for specific mitigation measures(e.g., specific road improvements). (/bid.) Regarding the second issue, Marina rejected CSU's claim that mitigation was exclusively the responsibility of FORA. (Marina, supra, 39 Cal.4th at pp. 366-367.) Undersection 21081, subdivision (a)(2), a public agency does not have to undertake identified mitigation measuresif it finds those measures "are within the responsibility and 25 jurisdiction of another public agency and have been,or can and should be, adopted by | that other agency." In the circumstances of Marina, although FORA hasresponsibility to implementits proposed infrastructure improvements, "the FORA Act contemplates that the costs of those improvements will be borne by those who benefit from them." (Marina, at p. 366.) However, Marina held the section 21081, subdivision (a)(2), finding may be made by a lead agency "only whenthe other agency said to have responsibility has exclusive responsibility." (Marina, at pp. 366-367.) Marinastated: "As the CEQA Guidelines explain, ‘[t]he finding in subsection (a)(2) shall not be madeif the agency makingthe finding has concurrent jurisdiction with another agency to deal with identified feasible mitigation measuresoralternatives.’ (CEQA Guidelines, § 15091, subd. (c).) The Guidelines’ logical interpretation of CEQA onthis point ‘avoids the problem of agencies deferring to each other, with the result that no agency deals with the problem... .'" (Marina, supra, 39 Cal.4th at p. 366.) Marina rejected CSU's argumentthat it had no responsibility to mitigate off-site environmental effects of its project because it lacked the powerto constructoff-site infrastructure improvements. (/d. at pp. 366-367.) Marina held: "CEQAdoesnot... limit a public agency's obligation to mitigate or avoid significant environmental effects to effects occurring on the agency's own property. (See... §§ 21002.1, subd. (b), 21060.5.) CEQAalso providesthat '[a]ll state agencies . . . shall request in their budgets the funds necessary to protect the environmentin relation to problems caused bytheir activities.' (/d., § 21106.) Thus, as we havealso explained, if [CSU] cannot adequately mitigate or avoid CSUMB's off-campus environmental effects by performing acts on the campus, then fo pay a third party such as FORA to perform the necessary acts offcampus may well representafeasible alternative." (39 Cal.4th at p. 367, italics added.) Marina then stated: 26 "To be clear, we do not hold that the duty of a public agency to mitigate or avoid significant environmentaleffects (... § 21002.1, subd. (b)), combined with the duty to ask the Legislature for money to do so (id., § 21106), will always give a public agencythatis undertaking a project with environmental effects shared responsibility for mitigation measures another agency must implement. Some mitigation measures cannot be purchased, such as permits that another agencyhasthesole discretion to grant or refuse. Moreover, a state agency's powerto mitigate its project's effects through voluntary mitigation paymentsis ultimately subject to legislative control; ifthe Legislature does not appropriate the money, the power does notexist. For the same reason, however, for [CSU] to disclaim responsibilityfor making such payments before they have complied with their statutory obligation to ask the Legislaturefor the necessaryfundsis premature, at the very least. The superior courtfound no evidence [CSU] had asked the Legislaturefor thefunds. In [its] brief to this court, [CSU] acknowledge[s] [it] did not budget for payments[it] assumed would constitute invalid assessments .... That assumption, as we have explained, is invalid." (Marina, supra, 39 Cal.4th at p. 367,italics added, fn. omitted.) Regarding the third issue (i.e., statement of overriding considerations), Marina stated: "A statement of overriding considerations is required, and offers a proper basis for approving a project despite the existence of unmitigated environmental effects, only whenthe measures necessary to mitigate or avoid those effects have properly been found to be infeasible. (... § 21081, subd. (b).) Given our conclusion [CSU][has] abused[its] discretion in determining that CSUMB's remaining effects cannot feasibly be mitigated, that [CSU's] statement of overriding circumstances[sic] is invalid necessarily follows. CEQA does not authorize an agency to proceed with a projectthatwill have significant, unmitigated effects on the environment, based simply on a weighing ofthose effects against the project's benefits, unless the measures necessary to mitigate those effects are truly infeasible. Such a rule, even were it not wholly inconsistent with the relevant 27 statute (... § 21081, subd. (b)), would tend to displace the fundamental obligation of '[eJach public agency [to] mitigate or avoid the significant effects on the environment of projects that it carries out or approves wheneverit is feasible to do so'(... § 21002.1, subd. (b))." (Marina, supra, 39 Cal.4th at pp. 368-369,italics added.) Marina concluded CSU mustbe directed to vacate its certification of the EIR and approval of the project and set aside its statement of overriding considerations. (Marina, supra, 39 Cal.4th at p. 369.) | C City, joined by SANDAGand MTS,contendsthetrial court erred in interpreting Marinato hold that CSU does not have to make "fair-share" payments for mitigation of the Project's significant off-site environmental impacts because CSU cannot guarantee the Legislature and Governor will approve the funding and therefore those mitigation measures are "infeasible" under CEQA.® City asserts CSU andthetrial court wrongly relied on dictum in Marina that would allow CSUto avoid its duty to mitigate under CEQA. City further argues the FEIR fails as an informational document becauseit did not discuss potential alternative means of paying CSU's "fair-share" of off-site mitigation costs. The language in Marina on which CSU andthetrial court relied is contained in a paragraph after the court held mitigation was not the exclusive responsibility of FORA 6 CSUargued below thatoff-site mitigation was 'infeasible" because it could not guarantee funding from the Legislature. 28 and CSU hadan obligation under CEQAto mitigate or avoid the project's off-site environmental effects by paying a third party (e.g., FORA) to perform thoseacts if payments were feasible and on-campusactions could not adequately mitigate those effects. (Marina, supra, 39 Cal.4th at pp. 366-367.) Marina then noted CSU had not made any request of the Legislature for off-site mitigation funding because CSU (erroneously) concludedit did not have any responsibility under CEQA to mitigate the off-site environmentaleffects of its project. (/d. at p. 367.) The court stated: "[FJor [CSU] to disclaim responsibility for making such payments before [it has] complied with [its] statutory obligation to ask the Legislature for the necessary funds is premature, at the very least." (/bid.) The court also stated: "[A] state agency's powerto mitigate its project's effects through voluntary mitigation paymentsis ultimately subject to legislative control; if the Legislature does not appropriate the money, the power does notexist." -(Ubid., italics added.) It is that latter language (on which CSU andthetrial court relied) that City asserts is dictum and does not provide persuasive reasoning to limit CSU's duty under CEQAto make "fair-share" mitigation paymentsfor the Project's significant off- site effects to merely making a request for such funding from the Governor and the Legislature. The language in Marinaatissue is dictum becauseit was not necessary for the holding or disposition.. "Only statements necessary to the decision are binding precedents... ." (Western Landscape Construction v. Bank ofAmerica (1997) 58 Cal.App.4th 57, 61.) "The doctrine of precedent, or stare decisis, extends only to the ratio decidendiof a decision, not to supplementary or explanatory comments which might 29 be included in an opinion. To determine the precedential value of a statement in an opinion, the language of that statement must be compared with the facts of the case and the issues raised." (Jbid.)7 "A decision is authority only for the point actually passed on by the court and directly involved in the case." (Gomes v. County ofMendocino (1995) 37 Cal.App.4th 977, 985.) The ratio decidendi ofMarina is defined by those issues directly raised by the parties and addressed by the California Supreme Court that were necessary to its | decision. In Marina, the court defined the question before it as "whether [CSU] haf[s] properly certified the EIR for CSUMBand,on that basis, approved the [project]." (Marina, supra, 39 Cal.4th at p. 355.) FORA contended CSU's EIR certification must be vacated because three of CSU's underlying findings were based on the erroneouslegal assumption that the California Constitution precludedit from contributing funds to FORA for mitigation of the project'senvironmental effects. (Zbid.) The California Supreme Court agreed with FORA that CSU erred in makingthe first two findings, 1.e., that (1) CSU cannotfeasibly mitigate those significant effects, and (2) mitigation of those effects was not CSU's responsibility. (Zbid.) The court then agreed CSU erred in making its third finding (1.e., its statement of overriding considerations) because it was based on 7 "The ratio decidendiis the principle or rule that constitutes the ground of the decision, andit is this principle or rule that has the effect of a precedent. It is therefore necessary to read the languageof an opinionin thelight of its facts and the issuesraised, to determine (a) which statements of law were necessary to the decision, and therefore binding precedents, and (b) which were arguments and general observations, unnecessary to the decision, 1.e., dicta, with no force as precedents." (9 Witkin, Cal. Procedure (Sth ed. 2008) Appeal, § 509, pp. 572-573.) 30 erroneous assumptionsthat it could not feasibly mitigate the significant off-site effects of its project and mitigation was notits responsibility. (/bid.) Marina concluded: "An EIR that incorrectly disclaims the power and duty to mitigate identified environmental effects based on erroneous legal assumptionsis not sufficient as an informative document." (Id. at p. 356.) The language in Marina on which CSUrelies in the instant appeal wasset forth in Marina's discussion of whether mitigation of off-site effects was exclusively the responsibility of FORA. (Marina, supra, 39 Cal.4th at pp. 366-367.) The court concluded CSU had a responsibility under CEQA to mitigate the significant off-site effects of its project even thoughit had no legal powerto actually construct the off-site . Improvements. (/bid.) Marina suggested that if CSU could not adequately mitigate significant off-site effects by performing on-campusacts,it could feasibly mitigate those off-site effects by paying a third party (e.g., FORA) to perform off-site mitigation (e.g., construct infrastructure improvements). (/d. at p. 367.) For purposesofstare decisis, that discussion constituted the court's reasoning necessary to its decision. Contrary to CSU's assertion, Marina's additional statements—that CSU had not requested funding from the Legislature for that off-site mitigation and that if the Legislature did not provide such funding, had it been requested, CSU would not have thepowerto mitigate those off-site effects—were supplementary or explanatory comments toits ratio decidendi and were dicta. (Western Landscape Construction v. Bank ofAmerica, supra, 58 Cal.App.4that p. 61; Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 272.) We conclude Marina's statement that "if the Legislature does not appropriate the money [for voluntary 31 payments for off-site mitigation], the power does not exist," (Marina, at p. 367) was unnecessary to its disposition of the appeal and is dictum weare not requiredto follow. (Western Landscape,at p. 61; Gogri, at p. 272.) | CSUarguesthat, even though that statement in Marina may be dictum, we nevertheless shouldfollowit. However, although we generally consider California Supreme Court dicta to be persuasive (Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169), the court's statement in question did not involve extensive analysis. We | agree with the reasoning of Marina's preliminary statements that CSU has an obligation under CEQA to mitigate or avoid the significant environmental effects of its projects (whether those effects are on-campus or off-site) and, towardfulfilling that obligation,it has a duty to ask the Legislaturefor funding to do so. (Marina, supra, 39 Cal.4th atp. 367.) However, the statement in Marinathat: "[A] state agency's powerto mitigateits project's effects through voluntary mitigation payments is ultimately subject to legislative control; if the Legislature does not appropriate the money, the power doesnotexist" (ibid.) is not supported byanystatute, regulation, case, or other authority. Rather, Marina merely proceeds from its conclusory statement to note that because CSUhad not even requested such appropriation from the Legislature, CSU could not argue it had no obligation under CEQA to make voluntary mitigation payments to a third party for off- site mitigation. (lbid.) Webelieve that had the parties in Marina specifically addressed the issue and had the California SupremeCourt extensively addressed or analyzed the issue, Marina would have modified or qualified its dictum. As City asserts, neither CEQAnorany provision 32 of the Education Codeorother statute precludes CSU (or any other state agency) from using nonlegislatively appropriated funding for making voluntary payments to third parties for mitigation ofthe off-site significant environmentaleffects of its projects. For example, we presume a campus of CSU (e.g., SDSU) mayreceive revenuesor other . funds from a myriad of sources(e.g., tuition, student fees, revenue bonds, parking fees, and private donations). Furthermore, in the context of the instant case, SDSU presumably will receive additional revenues from Project-related sources(e.g., rent from AdobeFalls faculty and student housing, revenue from guests of the Alvarado hotel, fees chargedto residents of the Project's new dormitories and/or other student housing, revenue from the new campusconference center, and revenue from the expanded and renovated student union). The availability of potential sources of funding other than the Legislature for off-site mitigation measures should have been addressed in the DEIR and FEIRandall of those potential sources should not be deemed "infeasible" sources for CSU's "fair-share" funding of off-site mitigation measures without a comprehensive discussion of those sources and compelling reasons showingthose sources cannot, as a matter of law, be used to pay for mitigation of the significant off-site environmental effects of the Project. CSUdid not cite in the DEIR or FEIR,orin its trial or appellate briefs, any statute, regulation, or other provision that bars it from using someorall of those revenue or other funding sourcesto help pay its "fair-share" of the costs to mitigate the significant off-site environmental effects of the Project. CEQA expressly provides that a public agency may use its discretionary powers for the purpose of mitigating or avoidinga significant 33 environmental effect of a project (except as otherwise provided by law). (§ 21004; Guidelines, § 15040(c); see also County ofSan Diego v. Grossmont-Cuyamaca Community College Dist. (2006) 141 Cal.App.4th 86, 103-104.) Under CEQA,a public agency(e.g., CSU)is required to mitigate or avoid the significant environmentaleffects of a project that it carries out or approvesifit is feasible to do so. (§ 21022.1, subd. (b); Marina, supra, 39 Cal.4th at p. 359.) Marina stated: "CEQA requires [CSU] to avoid or mitigate, if feasible, the significant environmental effects of their project (... § 21002.1, subd. (b)) and... payments to FORA may represent a feasible form of mitigation." (Marina, at p. 359.) The court stated: "CEQA does not authorize an agency to proceed with a project that will have significant, unmitigated effects on the environment, based simply on a weighing ofthose effects against the project's benefits, unless the measures necessary to mitigate those effects are truly infeasible. Such rule, even wereit not wholly inconsistent with the relevant statute (. . . § 21081, subd. (b)), would tend to displace the fundamental obligation of '[e]ach public agency [to] mitigate or avoid the significant effects on the environmentof projects that it carries out or approves whenever it is feasible to do so'(.. . § 21002.1, subd. (b))." Cd. at pp. 368-369,italics added.) Because of CSU's duty under CEQAto adoptfeasible measures to mitigate or avoid the significant environmental effects of the Project (whether those effects occur on-campus or off-site), it would be i//ogical to interpret that duty to mitigate as requiring payment for off-site mitigation measures only if, and only to the extent, CSU obtains fundingfor that mitigation from oneparticular source of its myriad of revenue or other funding sources (i.e., a specific appropriation by the Legislature for that mitigation) to the exclusion ofthe 34 many other funding sources CSU could use to help pay its "fair-share" of the costs to mitigate the off-site effects of the Project. Were we to accept CSU's interpretation of Marina, it would, in effect, allow CSU to avoidits obligation under CEQAto take feasible measures to mitigate or avoid the significant off-site environmental effects of the Project and thereby obtain the benefits of the Project while leaving City and other public agencies with the entire burden of paying for mitigation of the off-site environmental effects of the Project (or causing neighboring residents and commutersto suffer the unmitigated adverse impacts of the Project). Also, to so limit CSU's duty to mitigate under CEQA would not further the Legislature's intent that CEQA "be interpreted in such manneras to afford the fullest possible protection to the environment within the reasonable scope of the statutory language." (Friends ofMammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, disapproved on another ground in Kowis v. Howard (1992) 3 Cal.4th 888, 896-897.) D Because CSU erred in relying on the above dictum from Marina in preparing the DEIR,responses to comments, the FEIR, and the Findings, and concluding its paymentto City and other public agencies ofits “fair-share! of the costs of off-site mitigation measures was "not feasible" (1.e., infeasible), we, like the court in Marina, conclude CSU's erroneous legal assumption invalidates both its finding that measures to mitigate the off-site effects of the Project were infeasible and its statement of overriding considerations that can only be adopted when "the measures necessary to mitigate those 35 effects are truly infeasible."8 (Marina, supra, 39 Cal.4th at pp. 368-369,italics added.) "[PJublic agencies should not approve projects as proposedifthere are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects... ." (§ 21002.) Furthermore, an agency can adopt a statement of overriding considerations only after it has first properly found that mitigation measuresaretruly infeasible. (Marina, at pp. 368-369.) Marina stated: "A statement of overriding considerations is required, and offers a proper basis for approving a project despite the existence of unmitigated environmentaleffects, only when the measures necessary to mitigate or avoid those effects have properly been found to be infeasible. (... § 21081, subd. (b).) Given our conclusion [CSU] [has] abused[its] discretion in determining that CSUMB's remaining effects cannot feasibly be mitigated, that [CSU's] statement of overriding circumstances[sic] is invalid necessarily follows." (Marina,at-p. 368, italics added.) The court explained: "CEQA does not authorize an 8 The Findingsstated that: "Because CSU's request to the Governor and the Legislature, made pursuant to [Marina],for the necessary mitigationfunding may not be approved in whole or in part, or because any funding request submitted by Caltrans may not be approved, and, because the local public agencies may not fund the mitigation improvements that are within their responsibility and jurisdiction, even if state fundingis obtained, [CSU] finds there are nofeasible mitigation measures that would reduce the - identified significant impacts to a level below significant. Therefore, these impacts must be considered unavoidably significant even after implementation ofall feasible transportation/circulation and parking mitigation measures." (Italics added.) CSU represents on appeal that the Legislature has not granted its request for such funding. Given the difficult choices the Legislature and Governor faced in making widespread funding cuts in California's most recent budget, a pragmatist could reasonably predictthat it is unlikely the Legislature will provide funding for off-site mitigation of the Project in the foreseeable future. 36 agency to proceed with a project that will have significant, unmitigated effects on the environment, based simply on a weighing ofthose effects against the project's benefits, unless the measures necessary to mitigate those effects are truly infeasible. Such rule, even were it not wholly inconsistent with the relevant statute (... § 21081, subd. (b)), would tendto displace the fundamental obligation of '[e]ach public agency[to] mitigate or avoid the significant effects on the environment of projects that it carries out or approves wheneverit is feasible to do so'(. . . § 21002.1, subd. (b))."_ (Ud. at pp. 368- 369, italics added.) Because the DEIR, the FEIR, and the Findings were based on the erroneouslegal assumption that CSU could payits "fair-share" of off-site mitigation costs only ifthe Legislature specifically appropriated such funding, CSU improperly found those mitigation measures were infeasible and improperly adopted a statement of overriding considerations for those "unavoidable" effects of the Project (i.e., effects for which | mitigation was wrongly deemedinfeasible). Alternatively stated, CSU did not proceed in a manner required by law and thereby abusedits discretion by certifying the FEIR and approving the Project. (§ 21168.5; Vineyard, supra, 40 Cal.4th at p. 427.) When a public agency does not comply with procedures required by law,its decision must beset aside as presumptively prejudicial. (Sierra Club, supra, 7 Cal.4th at p. 1236.) To the extent CSU continuestoassert, as it did in its Findings andresolutions, that mitigation of the significant off-site effects of the Project is infeasible because CSU cannot guarantee City or other public agencies (e.g., Caltrans) will fund and implement measures to mitigate those significant effects, Marina noted "unavoidable uncertainties 37 affecting the funding and implementation of"off-site mitigation measures do not make CSU's voluntary "fair-share" contributions toward mitigation of thoseoff-site effects "infeasible." (Marina, supra, 39 Cal.4th at p. 364.) Furthermore, the DEIR, the FEIR, and the Findings do not contain any detailed discussion showing City or other public agencies will not take measures to fund and implement mitigation measures within their respective jurisdictions and control. Our review of the record shows CSU hasidentified specific mitigation measures for each significant off-site environmental effect of the Project (e.g., street intersections and segments and freeway onramps and segments) and CSU hasnot shownthe public agencies with jurisdiction over those mitigation measures had rejected those mitigation measures assuming CSU paysits "fair-share" of those mitigation costs.? City also asserts the DEIR and FEIR did notdiscussalternatives to the Project's on-campus components or other on-campusacts that could mitigate the significant off- site environmental effects of the Project and thereby reduce or eliminate CSU's obligation to payits "fair-share" for off-site mitigation. Marina implicitly recognized that CEQA requires CSU to consider on-campusacts that can mitigate off-site effects, stating: "[I]f 9 Although Caltransis not a direct party to this appeal, it has filed an amicusbriefin whichit argues that CSU wrongly interprets Marina as holding CSU need not make "fair- share" payments to another state agency (e.g., Caltrans) for off-site mitigation of the Project's environmental effects (e.g., freeway onramps and segments) because they both depend on the Legislature for their funding. We do not decidethis issue becauseit is not directly before us in this appeal. Nevertheless, we express our doubt that CSU's apparent strained interpretation ofMarina(asreflected in the DEIR and FEIR)is consistent with either Marina or CEQA. 38 [CSU] cannot adequately mitigate or avoid [a project's] off-campus environmental effects by performing acts on the campus[e.g., by sufficiently reducing the use of vehicles], then to pay a third-party [e.g., City or Caltrans] to perform the necessary acts off campus may well represent a feasible alternative." (Marina, supra, 39 Cal.4th at p. 367; see also Guidelines, § 15126.4; Federation ofHillside & Canyon Associations y. City ofLos Angeles (2000) 83 Cal.App.4th 1252, 1261, fn. 4.) Based on our review of the DEIR and FEIR,we do not believe those documents adequately addressed the possibility of reducing or avoiding the need for certain off-site mitigation measures (and CSU's "fair- share" funding thereof) by taking feasible measuresto alter certain on-campus components of the Project or taking other acts on SDSU's campus. Although the DEIR and FEIR extensively discussed specific alternatives to the Project, they did not expressly discuss possiblefeasible modifications to the Project or other on-campus acts that could reduceor eliminate the need for CSU's "fair-share" funding of off-site mitigation costs. (Cf. Centerfor Biological Diversity v. County ofSan Bernardino (2010) 185 Cal.App.4th 866, 882-883; Save Round Valley Alliance v. County ofInyo (2007) 157 Cal.App.4th 1437, 1457 ["If an alternative is identified as at least potentially feasible, an in-depth discussion is required."]; Association ofIrritated Residents v. County ofMadera (2003) 107 Cal.App.4th 1383, 1400 ["An EIR must ‘describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantiallylessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.'"].) Because the DEIR and FEIR did not contain an adequate discussion of 39 the possible feasible on-campus measures that could reduce or avoid the need for off-site mitigation, they were inadequate informational documents under CEQA. Accordingly, CSUdid not proceed in a manner required by law andthereby abusedits discretion by certifying the FEIR and approving the Project. (§ 21168.5; Vineyard, supra, 40 Cal.4th at p. 427; Sierra Club, supra, 7 Cal.4th at p. 1236.) Because of the above deficiencies, the DEIR and FEIR are inadequate informational documents under CEQA. (Laurel Heights, supra, 47 Cal.3d at p. 392; City ‘ofSantee v. County ofSan Diego, supra, 214 Cal.App.3d at pp. 1454-1455.) CSU's decision makers and the public did not have proper and adequate information regarding the Project and feasible sources for "fair-share" funding of significant off-site mitigation measures andfeasible on-campusacts that could reduce or eliminate the need for off-site mitigation and funding. CSU abusedits discretion by certifying the FEIR and approving the Project.!0 Thetrial court erred in concluding otherwise. IV Exhaustion ofAdministrative Remedies CSUasserts, as it did in thetrial court, that City, SANDAG, and MTSare barred by the doctrine of exhaustion of administrative remedies from raising the contentions that CSUerred in interpreting Marina and improperly foundoff-site mitigation was infeasible 10 In so holding, we do not address City's additional assertion that CSU's position constitutes improper deferral of mitigation by,in effect, shifting responsibility for mitigation from CSU to the Governor and the Legislature. 40 because CSU could not guarantee the Legislature would appropriate funding for mitigation of the Proj ect's significant off-site effects. A "Exhaustion of administrative remediesis a jurisdictional prerequisite to maintenanceof a CEOA action. Only a proper party may petition for a writ of mandate to challenge the sufficiency of an EIR orthe validity of an act or omission under CEQA. The petitioner is required to have ‘objected to the approval of theproject orally or in writing during the public commentperiod provided bythis division or prior to the close of the public hearing on the project before the issuance of the notice of determination.' ({Former] § 21177, subd. (b).) The petitioner may allege as a ground of noncompliance any objection that was presented by any person or entity during the administrative proceedings. [Citation.] Failure to participate in the public commentperiodfor a draft EIR does not cause the petitioner to waive any claimsrelating to the sufficiency of the environmental documentation." (Bakersfield Citizensfor Local Controlv. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1199 (Bakersfield).) Furthermore, "a party can litigate issues that were timely raised by others, but only if that party objected to the project approval on any ground during the public commentperiod orprior to the close of the public hearing on the project." (Federation ofHillside & Canyon Associationsv. City ofLos Angeles, supra, 83 Cal.App.4th at p. 1263.) "The purposeofthe rule of exhaustion of administrative remediesis to provide an administrative agency with the opportunity to decide matters in its area of expertise prior to judicial review. [Citation.] The decisionmaking body ' "is entitled to learn the 4] contentionsofinterested parties beforelitigation is instituted." '" (Napa Citizensfor Honest Government v. Napa County Bd. ofSupervisors (2001) 91 Cal.App.4th 342, 384.) To exhaust administrative remedies, "[m]ore is obviously required" than "generalized environmental commentsat public hearings." (Coalitionfor Student Action v. City of Fullerton (1984) 153 Cal.App.3d 1194, 1197.) The objection mustbe sufficiently specific to give the agency an opportunity to evaluate and respondto it. (Porterville Citizensfor Responsible Hillside Developmentv. City ofPorterville (2007) 157 Cal.App.4th 885, 909; cf. Resource Defense Fund v. Local Agency Formation Com. (1987) 191 Cal.App.3d 886, 894 [requiring the exact issue to have beenraised], disapproved on another groundin Voices of Wetlands v. State Water Resources Control Bd. (2011) 52 Cal.4th 499, 529.) "On the other hand, less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding." (Citizens Assn. for Sensible Development ofBishop Area v. County ofInyo (1985) 172 Cal.App.3d 151, 163.) Application of the exhaustion doctrine is a question of law we determine de novo. (Sierra Club v. City ofOrange (2008) 163 Cal.App.4th 523, 536; Planning & Conservation League v. Castaic Lake Water Agency (2009) 180 Cal.App.4th 210, 251.) B Weconclude the doctrine of exhaustion of administrative remedies does not bar City, SANDAG,and MTSfrom raising the contentions that CSU wrongly interpreted Marina and improperly found "fair-share" payments for off-site mitigation of significant effects were infeasible because CSUcould not guarantee the Legislature would 42 appropriate funding for that off-site mitigation. Based on our independent review of the administrative record, there are at least three documents or comments that show those issues were raised in a sufficiently specific manner to allow CSU an opportunity to evaluate and address them. First, in a letter to CSU from City's attorney dated July 27, 2007, City restated its concernsthatit raised in its February 21 letter responding to the NOP. Furthermore, City asserted the DEIR was "fatally flawed becauseit does not guarantee the implementation ofthe traffic mitigation measures it proposes." Quoting language from the DEIRstating that CSU's "fair-share" funding commitment is necessarily conditioned on requesting and obtaining funds from the Legislature, City asserted: "This approach relies on a faulty interpretation of (Marina]." City extensively discussed Marina and asserted that it included "pure dictum" in stating CSU did not have the powerto mitigate if the Legislature does not appropriate funding for mitigation.: City argued: "The [DEIR] improperly relies on this dictum to build towards an untenable either-or-finding, that either they will—or they will not—mitigate significanttraffic impacts." City concluded: "The [DEIR] fails because [CSU] disingenuously attempt[s] to dodge true responsibility by relying on dicta in the same California SupremeCourt case [i.e., Marina] that caused the collapse of the first [DEIR] on the [Project].". We conclude City's letter was sufficiently specific to apprise CSU of the contentions that City asserted in objecting to the DEIR (i.e., that CSU wrongly interpreted Marina and improperly relied on Marina's dictum to conclude that "fair-share" payments for off-site mitigation of the Project's significant effects were infeasible because CSU could not guarantee the Legislature would appropriate funding for that off-site mitigation). 43 Second, on February 21, 2007 (after the NOP was issued), CSU held a scoping meeting at which it heard comments from the public. At that meeting, Anne Brunkow, president of the Del Cerro Action Council, made the following oral comments (transcribed by a reporter and included in the administrative record): "I want to remind [CSU]that [Marina] indicated that public agencies have a requirementto either avoid or mitigate the significant impacts of their projects. So while it is comforting to know that [CSU]is going to request funding for the mitigation requirement, I want to remind [CSU] that not only do you need to requestthatfundingfrom the [Llegislature, but you simply need to mitigate. So assuming that the [Llegislature denies your requestforfunding, that does not eliminate your responsibility to mitigate the [P]roject['s] [significant environmental effects]." (Italics added.) Brunkow's commentclearly presented her position that under CEQA and Marina CSU had a duty to mitigate the significant environmental effects of the Project even ifthe Legislature denied CSU's request for mitigation funding. City, SANDAG and MTScan rely on Brunkow's commentto refute CSU's claim that they did not exhaust their administrative remedies. Asplaintiffs challenging CSU's certification of the FEIR and approval of the Project, they may raise in court "as a ground of noncompliance any objection that was presented by any person or entity during the administrative proceedings." (Bakersfield, supra, 124 Cal.App.4th at p. 1199.) Third, the administrative record showsthat even CSU's own staffwas aware of and considered Marina and other options for funding mitigation of the Project's effects. The written agenda for a January 16, 2007, meeting of CSU's campusplanningstaff andits CEQAtraffic consultants included a section describing the topics of prior discussion, including: "2. Other less technical issues of mitigation concern[:] [{[]] a. Sources of 44 funding(lack thereof); Legislature, local agencies, CSU capitalfunds (G.O. [general obligation] bonds)... ." (Italics added.) The agenda then listed topics for discussion at that meeting, including: "8. Are there other avenues, particularly with the state Legislature[,] that should be explored as a way of addressing [Marina] implementation?" (Italics added.) Based on that agenda,it is clear CSU staff had discussed at a past meeting alternative sources offunding CSU's mitigation obligation, including CSU's capital funds or general obligation bonds. It can also bereasonably inferred from the agenda that CSU staff discussed "other avenues"(i.e., alternative sources) for funding the implementation of its mitigation obligation under Marina and CEQA. Because CSUis charged with the actions and knowledgeofits staff in preparing the DEIR,particularly when that information is contained in the administrative record it is considering, we conclude City, SANDAGand MTSmayrely on the above agenda of CSU's staff to show they exhausted their administrative remedies and CSU had an opportunity to consider and address the issue whether there were alternative sources for funding its obligation under CEQAto payits "fair-share" of off-site mitigation measures. (Bakersfield, supra, 124 Cal.App.4th at p. 1199 [petitioner may raise "any objection that was presented by any personor entity during the administrative proceedings"].) Weconclude City, SANDAG and MTSarenotbarred by the doctrine of exhaustion of administrative remedies from raising the issues that CSU wrongly interpreted Marina and improperly found "fair-share" payments for off-site mitigation of significant effects were infeasible because CSU could not guarantee the Legislature would appropriate funding for that off-site mitigation. Those issues were adequately 45 raised during the administrative proceedings by sufficiently specific comments to give CSUan opportunity to evaluate and respond to them. (Porterville Citizensfor Responsible Hillside Developmentv. City ofPorterville, supra, 157 Cal.App.4th at p. 909.) Furthermore, the specific issue of alternative (1.e., nonlegislative) sources of funding for off-site mitigation wasraised at least implicitly, if not expressly, in the portions of the administrative record discussed above. City of Walnut Creek v. County of Contra Costa (1980) 101 Cal.App.3d 1012, cited by CSU andrelied on bythetrial court, iS inapposite and does not persuade us to reach a contrary conclusion. Therefore, the trial court erred by concluding City, SANDAG and MTSwere barred by the doctrine of exhaustion of administrative remedies from raising the contentions regarding funding for off-site mitigation measures. 11 11 In its statement of decision, the trial court stated: "Petitioners suggest that CSU must discuss other methods to fund mitigation measures, such as non-state funded revenue bondsor reducing the scopeof the [P}roject.... [SJuch arguments were not raised in the underlying [administrative] proceedings and cannot be raised now. A project opponent cannot makea skeletal showing during the administrative process and then obtain a hearing on expandedissues in the reviewing court. [Citation.] Here, Petitioners cited to several commentletters... . [H]owever, the alternative funding claims were not raised in these commentletters.". Based on our reasoning above, we concludethetrial court erred in concluding City, SANDAGand MTSwerebarred from raising the contention that CSU wasrequired to considerother, nonlegislative sources for paymentofits "fair-share" of off-site mitigation measures. 46 Vv Requestfor Judicial Notice City contendsthe trial court erred by denyingits request for judicial notice of certain documents pertaining to the issue of whether CSU complied with CEQA and Marina. A CSU moved to discharge the 2006 writ, arguing it had complied with Marina. In opposition to CSU's motion to discharge, City filed a request for judicial notice (RJN) of 22 exhibits (Exhs. A through W), consisting of about 1,418 pages. City argued the trial court should take judicial notice of: (1) documents contained in certain exhibits (Exhs. A through L) pursuant to Evidence Codesection 452, subdivision (c), because they represented official acts of the executive and legislative offices of the State of California and were not reasonably subject to dispute; and (2) documents contained in certain exhibits (Exhs. M through W) pursuant to Evidence Code section 452, subdivision (h), because they are writings of CSU's executive offices, evidence of official acts taken by CSU,and not reasonably subject to dispute. CSU then filed a motionto strike the documents for which City's RJN sought judicial notice. CSU argued those documents wereirrelevant to the issue of whether it had complied with CEQA and had not been considered by CSU whenit certified the FEIR and approved the Project. City argued the RJN documents should be judicially noticed to show CSU hadnot complied with Marina (and CEQA) bysimply requesting mitigation funding from the Governor and the Legislature. Thetrial court granted CSU's motion tostrike the RJN documents, stating: 47 "The court does not concur with . . . City's interpretation of [Marina] .... These documents were not part of the administrative record and were never considered by CSU whencertifying the [FEIR] and approving the 2007 Project." On October 7, 2010, City filed a motion to augment the record on appeal with the documents lodged with its RJN (i.e., Exhs. A through W). On October 27, we issued an order granting City's motion to augmentthe record on appeal. B Evidence Codesection 452 provides: "Judicial notice may be taken of the following matters to the extent that they are not embraced within [Evidence Code] Section 451: [i]... C9 "(c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. [J]... [9] "(h) Facts and propositions that are not reasonably subjectto dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy." "Although a court may judicially notice a variety of matters [citation], only relevant material maybe noticed. "But judicial notice, since it is a substitute for proof [citation], is always confined to those matters which are relevant to the issue at hand." " (Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on another ground in In re Tobacco Cases IT (2007) 41 Cal.4th 1257, 1276.) A trial court's decision whetherto take judicial notice of documents is subject to review for abuse of discretion. (in re Social Services Payment Cases (2008) 166 Cal.App.4th 1249, 1271; Salazar v. Upland Police Dept. (2004) 116 Cal.App.4th 934, 946.) 48 C Because wereverse the judgmenton other grounds, we do not address the merits of City's contention that the trial court erred by granting CSU's motionto strike City's RJN documents and thereby implicitly denying the RJN. Nevertheless, to provide the parties andthe trial court with guidance in future proceedings in this matter, we briefly commentonthetrial court's rationale for not taking judicial notice of, and striking, the RJN documents. The court's primary reasonfor striking the RJN documents wasthat, given its rejection of City's interpretation ofMarina, those documents wereirrelevant to its determination that CSU had complied with Marina by requesting off-site mitigation funding from the Legislature. However, as we concluded above, a mere request by CSU that the Legislature appropriate funding for off-site mitigation of the Project's significant effects does not comply with CEQA(and, at a minimum, an extensive discussion considering other possible feasible sources for funding off-site mitigation is required). CEQAand Marina require that CSU adopt feasible measures to mitigate the significant off-site environmental effects of the Project. CSU must consider and adoptfeasible sources of off-site mitigation funding in addition to requesting funding from the Governorand the Legislature. Therefore, to the extent the RJN documents are relevant to CSU's obligation to take feasible measures to mitigate the significant effects of the Project, including considering possible feasible sources for off-site mitigation funding, CSU should consider those documents andthe trial court in any future proceeding may, in the reasonable exerciseofits discretion, grant any future request to take judicial notice 49 of documents relevant to the question of whether CSU has proceeded in a manner required by law. 12 VI Increased Vehicle Traffic Calculations SANDAGand MTScontendthetrial court erred by concluding CSU did not improperly calculate the increased vehicle traffic that will be caused by the Project's increased student enrollment. They assert CSU erredin calculating the average daily vehicle trip (ADT)rates for both the Project's anticipated new resident students and new nonresident (or commuter) students. 13 A Resident Student ADTRate. For purposes of analyzing the impact of the Project on traffic, the DEIR considered a new student to be a "resident" if that student either lived on the SDSU campusor within one-half mile of the campus. The DEIR assumed the Project would result in enrollment of an additional 11,385 students by the 2024/2025 academic year and that 35 percent of those new students (3,984) would be resident 12 Although wehave not reviewed the RJN documents in question, City represents that those documents are CSU andstate budget and finance documents appropriate for judicial notice because they relate to the question of whether CSU properly interpreted Marina and complied with its CEQA obligation to adopt and implement feasible measures to mitigate the significant off-site environmental effects of the Project. 13 For purposes of linguistic convenience, we generally will refer to nonresident students as "commuter" students. 50 students and the remaining 65 percent of new students (7,401) would be commuter students. In estimating the ADTrate for the 3,984 new resident students, the DEIR relied on prior ADT rate calculations for resident students made by City and the University of California San Diego (UCSD). In a College Community Redevelopment Project EIR drafted by City in 1993 (RedevelopmentEIR), City calculated the ADT rate for a resident SDSUstudent would range from 0.12 to 0.64. In a separate EIR, UCSD calculated the ADTrate for a resident UCSD student to be 0.41. For purposes of analyzing the impact of the Project on traffic, the DEIR assumed the higher 0.64 ADT rate from the | Redevelopment EIR would apply to the Project's new resident students. SANDAGand MTSargue the DEIR erred by using the Redevelopment EIR's ADTrate for resident SDSU students because, in so doing,it treated the Project's new resident students as existing commuter students whorelocated to campus housing. They argue the analysis used in the RedevelopmentEIR is inapposite because that EIR considered the effect of constructing new student housing near the SDSU campus and the reduction in traffic as the result of the relocation of existing commuter students to housing near the campusand did not consider any increase in SDSU enrollment. However, we are not persuaded by that argument because the relevant issue is whether SANDAGand MTShave shownthe Redevelopment EIR's penultimate ADTcalculation for resident students is not supported by substantial evidence and cannot reasonably be relied on by CSU in calculating the ADT rate for the Project's new resident students. We conclude they have not carried their burden on appeal to make that showing. 51 SANDAGand MTSextensively discuss the Redevelopment EIR's methodology in calculating the ADT rate for existing commuter students who relocate to housing near the SDSU campus. However, we needonly briefly set forth that methodology andits calculations. Table 5-14 of the Redevelopment EIR (specifically cited in the DEIR) began with a vehicle ADT rate for commuters of between 3.1 and 4.4 per dwelling unit, | depending onthe type of housing. !4 The 4.4 ADTrate was then reduced by 2.8 ADT's per dwelling unit to reflect the fact that SDSU commuter students whorelocated to the new redevelopment housing near SDSU would no longer need to commute to SDSU by vehicle. The Redevelopment EIR concludedthe relocated, and then resident, SDsU students (and faculty and staff) would have an ADTrate of 1.6 per dwelling unit. Dividing the Redevelopment EIR's 1.6 ADT resident rate by the numberof students (2.5) per dwelling unit, the DEIR calculated an ADTrate of 0.64 per new resident student should apply in analyzing the traffic impacts of the Project. That 0.64 ADT rate per student was then multiplied by the numberofthe Project's new resident students (3,984), for a total increase of 2,550 ADT's, or daily vehicle trips, by the new resident students. Weconclude CSU's methodology in relying on the Redevelopment EIR's ADT calculations for resident students was reasonable. Furthermore, the Redevelopment EIR provided substantial evidence to support the DEIR's 0.64 ADT rate for new resident 14 City's engineer for the Redevelopment EIR assumedthat for medium density housing there were 6.0 daily trips per dwelling, of which about 4.4 trips were by vehicle and the remaining 1.6 daily trips were by walking or bicycle (1.24trips) or by carpool, vanpool, ortransit (bus or trolley) (0.37 trips). 52 students. SANDAG and MTSdonotcarry their burden on appeal to show otherwise. Weare not persuaded bytheir assertion that CSU improperly considered the Project's newresident students to be relocated commuter students by taking a "relocation deduction." CSU did not consider the Project's new resident students to be relocated commuter students, but rather relied on, and adopted, the Redevelopment EIR's ADT calculation for relocated, and then resident, students. It was the end result of the ADT rate calculated for a resident student that the DEIR adopted from the Redevelopment EIR and not the Redevelopment EIR's assumption that existing commuters would relocate to housing on or near SDSU's campus.!5 Finally, because the DEIR assumedthe higher 0.64 ADTrate for new resident students applied to the Project (based on the Redevelopment EIR's calculations), we need not address SANDAGand MTS's additional assertion that there was no substantial evidence to support CSU's reliance on UCSD's 15 Welikewise are not persuaded by SANDAGand MTS's argument that CSU improperly took a "double" deduction for transit use by new resident students. As noted above, in relying on the Redevelopment EJR's end result for the ADT rate for resident students, CSU did not include in that ADT rate a 0.37 ADT deductionfor transit use. Rather, that deduction waspart of the Redevelopment EIR's methodology of beginning with a 6.0 total trip rate per dwelling unit for medium density housing and then deducting 0.37 trips for transit use and 1.24 trips for walking and bicycling. It was the penultimate 0.64 ADTrate for resident students that was adoptedin the DEIR andrelevantin analyzing the Project's traffic impacts. The Redevelopment EIR's transit deduction of 0.37 trips for commuting students whorelocate to housing on or near SDSU's campus. was irrelevant to transit use by resident students, which was not involvedin the Redevelopment EIR's ADT calculation for resident students. Therefore, there was no double deduction when, as discussed below, the DEIR reduced the ADT's for both resident and commuterstudents based on projections that students would increasingly use transit in the future. 53 0.41 ADTrate for its resident students. CSU did not rely on that lower ADT rate in | analyzing the traffic impacts of the Project. B Commuter Student ADTRate. SANDAGand MTSassert CSU improperly calculated the increase in ADT's caused by the Project's new commuter students because it assumed new (and existing) commuter students would increasingly use transit(i.e., trolley and buses) rather than individual vehicles for their trips. They argue CSU wrongly assumedthat increased transit use would result in a 47 percent "shift-to-trolley" reduction in vehicle trips by the 2024/2025 academic year. Based on an actual vehicle count conducted during a five-day period in November 2006 at SDSU's parking lots, CSU determined SDSU'stotal ADT's were 66,807 and, when divided by the then-current number of commuter students (27,047), obtained an ADTrate of 2.47 per commuter student. Multiplying that 2.47 ADT rate by the number of new commuter students (7,401) to be added by the Project, a total of 18,280 new vehicle trips per day would be expected for new commuter students. Whenthat total of 18,280 ADT's for new commuter students was addedto the 2,550 ADT's for new resident students (as discussed above), the 1,376 ADT's for Adobe Falls housing residents, and the 1,200 ADT's for Alvarado hotel guests, a total of 23,406 ADT's would be added by the Project by 2024/2025 based on 2006 figures. However, because the 2.47 ADT rate _ for commuter students was based on 2006 vehicle and trolley usage,it did not reflect any anticipated future increase in the rate of trolley usage and resultant decrease in the rate of 54 vehicle usage. 16 Based on SANDAGand MTS's projections that daily boardingsat the SDSUtrolley station would increase from 5,982 to 14,714 by 2024/2025, CSU calculated there would be an increase of 8,732 passengers boarding at the SDSUstation overthe current numberofboardings. After adjusting for non-SDSU-telated boardings (e.g., _ transfers), carpools, and use of other formsoftransit (e.g., bus), CSU determined 5,460 of the 8,732 increase in daily boardings at the SDSU station would be SDSU-related trolley boardings. Because daily boardings represent only outboundtrips, CSU multiplied 5,460 by 2 to obtain the increased number(10,920) of SDSU-related trolley trips (both inbound and outbound) by 2024/2025 based on SANDAGand MTS's projections. Because CSU assumed that projected increasedtrolley usage reflected a shift from vehicle usage to trolley usage, CSU subtracted that increased trolley usage (10,920) from the gross total increased number of ADT's resulting from the Project based on 2006/2007 figures (23,406) and obtained a net increase of 12,486 ADT's resulting from the Project. Therefore, CSU reduced the initial calculation for the gross increase (23,406) in the Project's ADT's, or average daily vehicle trips, based on its assumption that SDSU students, faculty and staff would increasingly use the trolley by 2024/2025 instead of vehicles, resulting in a net increase in ADT's caused by the Project of only 12,486 by 2024/2025.17 16 Likewise, the 0.64 ADT rate for new resident students also did not reflect any anticipated future increase in trolley usage. 17 The DEIRincorrectly stated the net increase in ADT's was 12,484, rather than the correct figure of 12,486. For purposes of this opinion, we will use the correct number. 55 SANDAGand MTSargue CSU improperly reduced the gross increase in ADT's by 47 percent to reflect the projected increased usage ofthe trolley by 2024/2025.18 They argue that 47 percent "shift-to-trolley" reduction was improper because it reduced an already reduced ADTrate based ontrolley use. However, as CSU notes, its gross 2.47 ADT commuter rate was based on the then-existing rate of trolley usage anddid not account for future increasesin the rate of trolley usage. Accordingly, CSU reduced the Project's total increase in ADT's caused by new commuterstudents, new resident students, Adobe Falls housing residents, and Alvarado hotel guests, by 47 percent to reflect the projected increasein the rate of trolley usage and resultant decrease in the rate of vehicle usage. In so doing, we cannot conclude that CSU acted unreasonably or without substantial evidence for using that methodology. (City ofLong Beach v. Los Angeles Unified School Dist., supra, 176 Cal.App.4th at p. 898 [substantial evidence standard of review applies to agency's methodology used for studying an impact and the reliability or accuracy of data on which agencyrelied].) Furthermore, we reject SANDAGand MTS'sassertion that CSU "essentially [assumed] all new non-residents, faculty, staff and visitors would be vehicle drivers who were somehow magically persuaded to switch to trolley transportation." Rather, CSU initially calculated the gross increase in ADT'sresulting from the Project's new students 18 Based on our calculations, the actual "shift-to-trolley" percentage reduction (10,920 trolley trips divided by 23,406 ADT's) is approximately 46.65 percent, which is rounded up to 47 percent. 56 (commuters andresidents), faculty, staff, and guests, based on 2006/2007rates oftrolley usage and then reduced that numberto reflect a 47 percent "shift-to-trolley" use by 2024/2025. We conclude there is substantial evidence to support CSU's methodology and calculations in finding the Project's net increase in ADT's will be 12,486. To the extent SANDAGand MTSargue CSU should have used a different methodology, they do not show thereis insufficient evidence to support the methodology CSU used in calculating the Project's traffic impact in increasing ADT's. Accordingly, SANDAG and MTShavenotcarried their burden on appeal to show CSU improperly calculated the increase in ADT's by the Project's new.commuterstudents based on CSU's assumption that new (and existing) commuter students (as well as resident students, Adobe Falls housing residents, and Alvarado hotel guests) would increasingly use the trolley rather than vehicles. C Based on the above arguments challenging CSU's methodology and calculations regarding the increased number of ADT's caused by the Project, SANDAG and MTS assert CSU's calculation ofits "fair share" of costs to mitigate the Project's traffic impacts (i.e., $6,484,000) is not supported by substantial evidence. However, because we rejected those methodology and calculation arguments above, we conclude SANDAG and MTShavenotcarried their burden on appeal to show thereis insufficient evidence to support CSU's calculation of its "fair share" of traffic mitigation costs. 57 vu Deferral ofMitigation of Traffic Impacts SANDAGand MTScontendthetrial court erred by concluding CSU properly deferred adoption of mitigation measures to reduce vehicletraffic. They assert CSU's adoption of mitigation measure "TCP-27," requiring CSU to consult with them in developing a transportation demand management (TDM) program with the goal of reducing vehicle trips to SDSU's campusin favor of alternate modesof travel, constitutes improper deferral of measures to mitigate the Project's traffic impacts. A Feasible mitigation measures for significant environmental effects must be set forth in an EIR for consideration by the lead agency's decision makers and the public before certification of the EIR and approval of a project. The formulation of mitigation measures generally cannot be deferred until after certification of the EIR and approval of a project. Guidelines, section 15126.4(a)(1)(B) states: "Formulation of mitigation measures should not be deferred until some future time. However, measures may specify performancestandards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way." "A study conducted after approval of a project will inevitably have a diminished influence on decisionmaking. Evenif the study is subject to administrative approval,it is analogousto the sort of post hoc rationalization of agency actions that has been repeatedly condemnedin decisions construing CEQA." (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 307.) "[R]eliance on tentative plans for future 58 mitigation after completion of the CEQAprocesssignificantly undermines CEQA's goals of full disclosure and informed decisionmaking; and[,| consequently,these mitigation plans have been overturned on judicial review as constituting improper deferral of environmental assessment." (Communitiesfor a Better Environmentv. City ofRichmond (2010) 184 Cal.App.4th 70, 92 (Communities).) "Deferral of the specifics of mitigation is permissible where the local entity commits itself to mitigation andlists the alternatives to be considered, analyzed and possibly incorporated in the mitigation plan. [Citation.] On the other hand, an agency goes too far whenit simply requires a project applicant to obtain a biological [or other] report and then comply with any recommendations that may be madein the report." (Defend the Bay v. City ofIrvine (2004) 119 Cal.App.4th 1261, 1275.) "If mitigation is feasible but impractical at the time of a general plan or zoning amendment,it is sufficient to articulate specific performancecriteria and make further approvals contingent on finding a way to meet them." (Endangered Habitats League, Inc. v. County ofOrange (2005) 131 Cal.App.4th 777, 793.) However, a lead agency's adoption of an EIR's proposed mitigation measure for a significant environmental effect that merely states a "generalized goal" to mitigate a significant effect without committing to any specific criteria or standard of performance violates CEQA by improperly deferring the formulation and adoption of enforceable mitigation measures. (San Joaquin Raptor Rescue Center v. County ofMerced (2007) 149 Cal.App.4th 645, 670; Communities, supra, 184 Cal.App.4th at p. 93 ["EIR merely proposesa generalized goal of no net increase in greenhouse gas emissions and thensets 59 out a handful of cursorily described mitigation measures for future consideration that might serve to mitigate the [project's significant environmentaleffects. ]"]; cf. Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1028-1029 [upheld EIR that set forth a range of mitigation measuresto offset significanttraffic impacts where performance criteria would have to be met, even though further study was needed and EIR did not specify which measures had to be adopted bycity].) B The DEIR concludedthe Project would cause significanttraffic impacts. In response to comments from SANDAGandothers that CSU should take a more balanced approach to mobility and provide mitigation measures supporting alternative modes of travel, CSU revised the DEIR to include mitigation measure TCP-27 in the FEIR. TCP- 27 stated: "SDSUshall develop a campus Transportation Demand Management (‘TDM’) program to be implemented notlater than the commencement of the 2012/2013 academic year. The TDM program shall be developed in consultation with [SANDAG] and [MTS] and shall facilitate a balanced approach to mobility, with the ultimate goal ofreducing vehicle trips to campus in favor of alternate modesoftravel." (Italics added.) In the Findings, CSU adopted TCP-27, along with othertraffic mitigation measures. CSUalso adopted the mitigation measures set forth in the MMRP, which included TCP- 27. CSUthen certified the FEIR and approved the Project. C SANDAGand MTSassert the traffic mitigation measure set forth in TCP-27 constitutes improper deferral of mitigation by CSU in violation of CEQA. They argue 60 TCP-27 did not identify any specific future mitigation actions or set any specific goals or performance standards. They argue TCP-27 merely stated a generalized goal and did not commit CSUto take any actual or specific mitigation actions, thereby constituting improper deferral of mitigation of the Project's significant traffic effects. Weagree with SANDAGand MTS'sassertion that CSU's adoption of TCP-27 constitutes improper deferral of mitigation of the Project's significanttraffic effects. TCP-27 commits CSU only to consult with SANDAG and MTSand then develop a TDM to be implemented by 2012/2013. The TDM "shall facilitate a balanced approach to mobility, with the ultimate goal of reducing vehicle trips to campusin favorof alternate modesoftravel," but there are no specific mitigation measures to be considered or any specific criteria or performancestandardsset forth in the TDM. TCP-27 sets only a "generalized goal" of reducing vehicle trips by, presumably, encouraging alternate modes of travel. "This is inadequate. Nocriteria or alternatives to be considered areset out. Rather, the mitigation measure does no more than require a report be prepared and followed, or allow approval by [CSU] without setting any standards." (Endangered Habitats League, Inc. v. County ofOrange, supra, 131 Cal.App.4th at p. 794.) Therefore, the TDM required to be developed by TCP-27 appearsto be, at best, an amorphous measure that does not commit CSU to take any specific mitigation measures to reduce vehicle trips and does not provide for any objective performance standards by which the success of CSU's mitigation actions can be measured. Accordingly, as in anothercase, "{t]he only criteria for 'success' of the ultimate mitigation plan adopted is the subjective judgment of [CSU], which presumably will makeits decision outside of any public 61 process .. . after the Project has been approved." (Communities, supra, 184 Cal.App.4th at p. 93.) Furthermore, because TCP-27 and the TDM are lacking in specifics, neither CSU's decision makersnor the public had an opportunity to consider possible specific, concrete mitigation measures to reducevehicle trips to SDSU. Because CSU only adopted TCP-27 in response to comments to the DEIR and thereby apparently deferred studying actual measures that could be taken to reduce vehicle trips, "[t]he solution was not to defer the specification and adoption of mitigation measures until . . . after Project approval, but, rather, to defer approval of the Project until proposed mitigation measures were fully developed, clearly defined, and madeavailable to the public andinterested agencies for review and comment." (/d. at p..95.) Sacramento Old City Assn. v. City Council, supra, 229 Cal.App.3d 1011, cited by CSU,is inapposite and does not persuade us to reach a contrary conclusion.!9 Thetrial court erred by concluding CSU did not improperly defer adoption of mitigation measures to reduce vehicle traffic by adopting TCP-27. Vil The Project's Effect on Transit SANDAGand MTScontendthetrial court erred by concluding the FEIR adequately addressed the Project's potential impacts on transit and there is substantial 19 Furthermore, to the extent CSU argues SANDAGand MTSfailed to exhaust their administrative remedies on this issue, CSU does not make any substantive argument on the facts or law showingthey are barred from raising this issue on appeal. We conclude CSU has waived that conclusory argument. 62 evidence to support CSU's finding that the Project will not cause any significant effect on public transit (e.g., trolley and bus facilities and service). A An EIR mustdescribe,in detail, all the significant effects on the environment of the project. (Sunnyvale, supra, 190 Cal.App.4th at p. 1372.) An EIR mustinclude a detailed discussion of "[a]ll significant effects on the environment of the proposed project." (§ 21100, subd. (b)(1).) Section 21068 states: " Significant effect on the environment' means a substantial, or potentially substantial, adverse change in the environment." (Italics added.) Section 21060.5 states: " Environment’ meansthe physical conditions which exist within the area which will be affected by a proposed project, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance." (Italics added.) "In evaluating the significance of the environmental effect of a project, the lead agency shall consider direct physical changes in the environment which maybe causedby the project and reasonably foreseeable indirect physical changes in the environment which maybe causedby the project." (Guidelines, § 15064, subd. (d).) "TU]nder CEQA,the lead agency bears a burden to investigate potential. ‘environmental impacts." (County Sanitation Dist. No. 2 v. County ofKern (2005) 127 Cal.App.4th 1544, 1597.) In so doing, the lead agency must consult with any public agencythat has jurisdiction over natural resources or other potential environmental impacts of a project. (Berkeley Keep Jets Over the Bay Com. v. Board ofPort Cmrs. (2001) 91 Cal.App.4th 1344, 1370 (Berkeley).) If an agency's investigation shows 63 particular environmental effects of the project will not be potentially substantial, the EIR must "contain a statementbriefly indicating the reasons for determining that various effects on the environmentof a project are not significant and consequently have not been discussed in detail in the [EIR]." (§ 21100, subd. (c); see also Guidelines, § 15064(b).) Alternatively stated, the EIR must include a statement of the agency's reasons,albeit brief, for its conclusion that a particular environmental impactis not potentially substantial (i.e., significant). (Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1111 (Amador).) A mere conclusion of insignificance is not adequate to allow meaningful judicial review and constitutes a failure to proceed in the manner required by law. (/d. at pp. 1111-1112.) Evenif an agency provides an adequate statement of reasons regardingits conclusion that a particular effect of a project will not be significant, that conclusion can be challenged as an abuseofdiscretion if not supported by substantial evidence in the administrative record. (Amador, supra, 116 Cal.App.4th at p. 1113.) Ifa lead agency does not conduct an adequate initial study regarding a particular environmental effect of a project, it cannot rely on an absence of evidenceresulting from that inadequate study as proofthere is substantial evidence showingthat particular effect is not significant under CEQA. (Sundstrom v. County ofMendocino, supra, 202 Cal.App.3d at p. 311.) | Likewise, an agency cannot concludea particular environmentaleffect is not significant based on a purported absenceof precise methodology or quantification for determining the level of significance for that effect. (Berkeley, supra, 91 Cal.App.4th at p. 1370.) An 64 agency mustuseits best efforts to evaluate whether a particular impactis significant. Cd. at pp. 1370-1371.) "The Legislature has made clear that an EIR is 'an informational document’ and that '[t]he purpose of an environmental impactreport is to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment;to list ways in which the significant effects of such a project might be minimized; andto indicate alternatives to such a project." (Laurel Heights, supra, 47 Cal.3d at pp. 390-391.) "Before approving the project, the agency mustalso find either that the project's significant environmental effects identified in the EIR have been avoided or mitigated, or that unmitigated effects are outweighed by the project's benefits." (d. at p. 391.) Under CEQA,a public agency is required to mitigate or avoid the significant environmental effects of a project that it carries out or approvesif it is feasible to do so. (§ 21022.1, subd. (b); Marina, supra,39 Cal.4th at p. 359.) B The DEIR circulated by CSU discussedthe potentially significant impacts of the Project on the environment. Although the DEIR's traffic analysis included a substantial reduction of the Project's impacton traffic as a result of the projected "shift-to-trolley" use as discussed above, the DEIR did not substantively address whetherthat increased rate of trolley use, together with the additional trolley.trips taken by the new 11,385 students to be added by the Project, would cause a significant effect, whether direct or indirect, on the environment. Appendix N (Traffic Technical Report) to the DEIRrelied on SANDAG'sforecastthat boardings at the SDSUtrolley station would increase from 65 5,982 daily boardings in 2007 to 17,450 daily boardings in 2030 to conclude, through interpolation, that there would be 14,714 daily boardings in the 2024/2025 academic year. Appendix H1reflected that interpolation of SANDAG's forecasted increase in boardings at the SDSUstation. In response to the DEIR, SANDAGsenta letter, dated August 8, 2007, to SDSU stating that "the traffic study assumesa high level of transit mode share while failing to address capacity limitations of the [transit] system to absorb the projected transittrips. Consequently, the traffic study understates traffic impacts and does not adequately mitigate for those impacts in the short or long term." It further stated: "Project-specific impacts should be mitigated with specific transit, highway, and roadway improvements that are implemented by [CSU]. Long-term impacts should be mitigated through a combination of project-specific improvements andbyparticipating in the construction and/or funding of regional transportation facilities and services at a fair-share level." SANDAGexpressed the specific concern that the DEIR'straffic analysis "assume[d] a high proportion of trips accommodated by transit without addressing the neededcapital and operating support necessary to attain that mode split." SANDAGstated: "The analysis includes an unsupported assumption that one-half of the growth in vehicular trips generated by the campus growth will be handled by transit. This assumption is based on the SANDAG model's estimate of future boarding growth at the SDSUtrolley station. The SANDAG model projects demandfor transit travel unconstrained by the limitations of the system's capacity. We are skeptical that the projected 10,000 additionaltransit trips can be absorbed by the system without infrastructure and operational improvements to the trolley and bus system. While we support any effort to meet [SDSU's] future travel needs with transit, the DEIR must address the impacts ofthe demand growth ontransit and 66 assess SDSU's responsibility to provide improvements to mitigate those impacts. "_,. The Master Plan and EIR should identify modesplit targets for 2030 and intermediate years, and include specific measures geared toward achieving those targets. The DEIR should include a planfor capital and operating improvements that mitigatefor additional demandand any negative impacts to current transit operations as a result ofSDSU's plans. For example, the capacity ofthe trolley infrastructure and services should be evaluated, and mitigation measures should be proposed, such as improvements to track, rolling stock, and station infrastructure, or additional service to address capacity issues. These measures should beidentified in consultation with [MTS]. (Italics added.) The FEIR included CSU's responses to various comments by other agencies and the public to the DEIR,including a specific response to SANDAG's comments. The FEIRstated: "Between March 2007 and August 2007, representatives of SDSU and SANDAGmet on numerousoccasionsto discuss the [Project]. Because the [DEIR] did notfind that the [Project| would result in significant impacts to transit (i.e., trolley or bus systems), it is SDSU/CSU's position that no mitigation is required. "SANDAG, however, contends that SDSUis responsiblefor transportation improvements, includingprimarily improvements to transit.... According to SANDAG,this per capita cost figure [$19,300] could be used as an initial basis for determining SDSU's fair share contribution toward the regional impacts resulting from the {P]roject. [Citation.] "SANDAGhasprovided no evidence that the [Project] would result in significant impacts to transit within the meaning ofCEQA, nor has it provided SDSU with a sufficient nexus studyrelative to the [Project's] impacts and the $19,000/student mitigation paymentit proposes... ." (Italics added.) 67 In regard to SANDAG's specific concern that the DEIR assumeda highleveloftransit use but did not address the capacity limitations of the transit system to absorb those increasedtransit trips, CSU responded: "The premise ofthe commentis incorrect. CEQA does not require that the traffic impacts analysis address whetherthe transit system has capacity limitations oris able to absorb the projected transit trips. (See, e.g., CEQA Guidelines Appendix G, Subparagraph XV, Transportation/Traffic....)... "Additionally, CEQA does not define increasedtransit ridership as an ‘impact,’ nor doesitprovide applicable thresholds ofsignificance to determine when such increased ridership would be ‘significant’ within the meaning ofCEQA, thereby requiring mitigation. Absent identification of asignificant impact within the meaning of CEQA, no mitigation is required. "In addition to the absenceofsignificance criteria in Appendix G of the CEQA Guidelines, neither SANDAGnorthe City ofSan Diego has developedcriteria that may be utilized to assess whether the [Project] would significantly impact transit services... . "Moreover, to require a project proponentto ‘mitigate’ increased transit ridership by payingfor capital improvementsto the transit system, as the commentletter requests, would be directly contrary to statewide land use andplanning principles, which uniformly encouragethe increased use oftransit to reduce traffic impacts and related air quality impacts... . [T]he comments ask SDSU to take steps to further increase transit ridership, while at the same time contending that such increased ridership is an 'impact' requiring mitigation. The inherent disincentive in this approach is counterto the fundamental principles of CEQA to reduce, notincrease, environmental impacts. "In sum, any transit 'impacts' that may resultfrom the [Project] relating to increased transit ridership are not subject to CEQA . analysis as they are not environmental impacts recognized under CEQA. Accordingly,if a transit impact analysis were to be undertaken, as the commentletter suggests, it would necessarily be conducted under a non-CEQAregime. 68 "The comment implies that the focus of any such analysis would be on whether the [Project] contributes to transit ridership rates in such a manner that implementation of the [Project] would result in over- capacity. Accordingly, any analysis to be undertaken would entail assessing the transit service's ability to accommodate the additional riders. [J]... [9 "Notably, at no time during the traffic consultant's discussions with SANDAGwasany concern expressed regarding future capacity associated with the Green Line. Furthermore, at present time, there is no evidence that the Green Line is operating at or near capacity due to SDSU ridership. SANDAG's commentletter provided no data or other documentation that the Green Line is operating over capacity, thereby resulting in physical deficiencies in the system. . . "_.. [T]he projections of future ridership utilized in the EIR are based on SANDAG's owngenerated estimates. Therefore,it is reasonable to expect that because the source of the numbersis SANDAG, SANDAGisplanningfor the increased ridership [and] this increased ridership has already been factored [into] SANDAG's long-range plans for the system. Finally, there is no evidence that SANDAGwill not be able to securefundingfor any necessary transportation infrastructure programs through traditionalfunding sourcesat the local, state, and federal levels... ." (Italics added.) Based on CSU's responses to SANDAG's comments, the FEIR revised the DEIR's transportation analysis section to include the following statement: "With respect to transit, neither SANDAGnorthe City of San Diego has established criteria that could be utilized to assess the project's impact on transit service. Additionally, the Congestion ' Management Program ('CMP') provides no methodology to analyze potential impacts to transit and there is no criteria to determine whether an increasein transit ridership would be a significant impact within the meaning of CEQA." The FEIRalso included revisionsto its Appendix N-1 (Traffic Technical Report), adding the following statements: "The [P]roject will result in an increase in ridership on both local bus service and the San Diego Trolley. The SANDAGforecasted increase in trolley 69 ridership is discussed in Section 8.1.4 of this report. Neither SANDAGnorthe City of San Diego hascriteria that could be utilized to assess the [P]roject's impact on transit service. In addition, the Congestion Management Program (CMP)provides no methodology to analyze potential impacts to transit and there is no criteria to determine . whether the increase in ridership would be significant. [{]] The San Diego Trolley line was recently extended to [SDSU] in 2005 and was constructed to accommodatelarge ridership amounts." On November 13, 2007 (after the period for public comment on the DEIR had ended), MTSsenta letter to CSU, expressing some of the same concerns SANDAGhad expressed. MTSstated: "The [DEIR] for the [Project] recognizes the importanceof transit and indicates that a large part of the anticipated growth in the campus population will rely on transit to gain access to campus facilities. Unfortunately, the existing trolley and bus services cannot possibly meet this demand. Based on preliminary review,transit would need to provide an additional $27 million investment in capital and an additional $1 million per year to operate the service. The current state of funding for transit makes this investment impossible. Amongother factors contributing to this lack of funding | is the State of California's diversion of $17 million from MTSin this fiscal year and the promise to continuethis diversion next year. "Currently, MTS's trolley and buses make over 10,000 trips per day _to and from SDSU,which represents over 20 percent of the student population. Based on the EIR, the numberoftransit trips serving SDSUis expected to increase by 64 percent. Not only is this substantial increase a reflection of the growth in student population, it also assumesan increasein transit's share oftrips to the university. . To achieve this increase and adequately serve the demand, transit operations need to be expanded... ." (Italics added.) 70 On November13 and 14, 2007, CSU held a public meeting on the FEIR. Representatives of SANDAG and MTS,amongothers, expressed their concerns regarding the FEIR and the Project. CSU then adopted the Findings and the MMRP. In the Findings, CSU generally found the FEIR identified potentially significant effects that could result from implementation of the Project, but inclusion of mitigation measures as part of approval of the Project would reduce most, but notall, of those effects to less than significant levels. CSU expressly found the Project would have "[n]o significant impacts on transit systems." (Italics added.) CSU then certified the FEIR and approved the Project. C Wefirst address SANDAG and MTS'sassertion that CSU did not adequately investigate or address the Project's potential impacts on transit. Based on our independent review ofthe administrative record, we conclude CSU did not adequately investigate.and address the Project's significant (i.e., substantial or potentially substantial) adverse impacts on the San Diego publictransit system (i.e., trolley and bus systems).29 Although CSU calculated (per SANDAGprojections) that the numberof daily boardings at the SDSUtrolley station would increase from 5,982 boardings in 2006/2007 to 14,714 boardings in the 2024/2025 academic year (apparently due primarily to the Project's additional 11,385 students and shift from vehicle to trolley usage as discussed above), 20 Section 21068 defines a" '[s]ignificant effect on the environment' " as "a substantial, or potentially substantial, adverse change in the environment." 71 CSU did not conduct any substantive investigation or other study of the potential environmental impacts of that increased trolley usage and whether those impacts were significant environmental effects under CEQA. SANDAG and MTS's comments expressed their concerns that the increasedtrolley trips resulting from the Project could not be absorbedbythe trolley system without infrastructure and operational improvements. They expressed their belief that CSU should study the capacity limitations of the trolley system and propose mitigation measures to reduce the Project's significant effects on the trolley system. However, rather than accepting their suggestions, CSU rejected them. In its responses to SANDAG's comments and in the FEIR, CSU took the position that it had no duty under CEQAto investigate the potential effects of the Project on the transit system because: (1) any impactof the Project on the transit system is not an "environmental" effect under CEQA; (2) SANDAG and other agencies did not, and the Guidelines do not, provide CSU with anycriteria for determining the capacity of the SDSUtrolley station or whether the increasedtrolley usage is a "significant" environmental effect under CEQA; and (3) public policy favors increased transit use so impacts on the trolley system should not be considered significant environmental impacts subject to mitigation obligations under CEQA. On appeal, CSU appearsto rely only on the second groundtojustify its failure to investigate and address the potential significant effects of the Project on the trolley 72 system.21 CSUargues, in conclusory fashion, that because SANDAGand other agencies (e.g., City and MTS)did not provide it with either the exact capacity limitations of the SDSUtrolley station or specific criteria for determining whetherthe Project's effects on the trolley system would be "significant" effects, there was no evidence in the | administrative record that would allow it to investigate and determine whetherthe Project's increasedtrolley usage would exceed the SDSUtrolley station's capacity. CSU further argues that absent specific criteria for determining whether the Project's effects on the trolley system would be "significant," it had no duty to investigate those effects and determine, on its own, whether those effects would be "significant" under CEQA. 21 Although CSU doesnot substantively address or rely on the other two grounds on appeal, we believe CSU wisely chose to abandon them. Weare unawareofanystatute, regulation, or case that provides or holds a project's effects on a transit system cannot be considered to be "environmental" effects under CEQA. On the contrary, section 21060.5 defines "environment" under CEQAto be the "physical conditions which exist within the area which will be affected by a proposed project." Like a project's effects on streets and highways, a project's effects on a transit system logically should be considered "environmental" effects under CEQAbecause those effects ordinarily will impact, both. directly and indirectly, the physical conditions in the area of a project. Likewise, although we presumethere is a.public policy generally favoring increased use of public transit, that policy does not necessarily preclude, much less outweigh, the public policy underlying CEQAregarding the consideration of, and elimination or reduction of, a project's potentially significant environmental effects before that project is approved. Becausethe latter public policy expressed in CEQAis the more specific one, we believe the public policy favoring public transit usage should not exempt a lead agency(e.g., CSU)from CEQA's requirements that it investigate a project's potentially significant environmental impacts on a public transit system and adopt feasible mitigation measures to avoid or reduce those effects. As the California Supreme Court hasstated, "[t]he foremostprinciple under CEQAis that the Legislature intended the act 'to be interpreted in such manneras to afford the fullest possible protection to the environmentwithin the reasonable scopeofthe statutory language.'" (Laurel Heights, supra, 47 Cal.3dat p. 390.) 73 However, in so arguing, CSU improperly attempts to avoid, or at least unduly minimize, its duties as a lead agency under CEQAto investigate and address a project's potentially significant environmental effects in an EIR and to discuss and adopt feasible mitigation measures to avoid or reduce thoseeffects. (See generally §§ 21002, 21080, subd. (d), 21082.2, subd. (d), 21100, subd. (a), 21151; Sunnyvale, supra, 190 Cal.App.4th at p. 1372; Sierra Club, supra, ‘7 Cal.4th at p. 1233; Laurel Heights, supra, 47 Cal.3d at p. 391 [lead agency must prepare an EIR which "is 'an informational document‘ and. . '[t]he purpose of an [EIR] is to provide public agencies and the public in general with detailed information aboutthe effect which a proposedprojectis likely to have on the environment;to list ways in whichthe significant effects of such a project might be minimized: and to indicate alternatives to such a project.’ "].) "[U]nder CEQA,the lead agency bears a burden to investigate potential environmental impacts." (County Sanitation Dist. No. 2 v. County ofKern, supra, 127 Cal.App.4th at p. 1597.) In so doing, the lead agency must consult with any public agencythat has jurisdiction over natural resources or other potential environmental impacts of a project. (Berkeley, supra, 91 Cal.App.4th at p. 1370.) CSUhasa duty to investigate potential environmental impacts of the Project, including whether the Project's impacts on the transit system may besignificant environmental effects. Although the record supports a finding that CSU consulted with SANDAGandotherpublic agencies on certain matters, CSU does not cite, and we are not aware of, any document in the administrative record showing CSU expressly requested data or other specific information regarding the capacity limitations of the 74 SDSUtrolley station or trolley line or system generally. CSU cannotfulfill its duties as a lead agency under CEQAby acknowledging the Project will cause a substantial increase in trolley ridership and then not proactively investigate whether that increase will exceed the trolley system's capacity or otherwise cause potentially substantial adverse changesto the trolley system's infrastructure and operations. (Guidelines, § 151445 ["[A]n agency must use its best efforts to find out and discloseall that it reasonably can."|; Berkeley, supra, 91 Cal.App.4th at p. 1370 [no evidence lead agency made "reasonably conscientious effort" to collect data or make further inquiries of other agencies].) Alternatively stated, CSU cannot both conclude the Project will cause substantially increasedtrolley ridership (1.e., an additional 6,898 SDSU-related riders) and then passively wait for other agencies to provide it with data or other information that would allow it to determine whetherthat effect is a significant environmental effect under CEQA.22 Therefore, although we presume SANDAGand MTSdid not provide CSU with specific data regarding the capacity limitations of the SDSUtrolley station or the -trolley line or system generally, their failure to provide CSU with that data or information did not excuse CSU from carrying out its duty, on its own, to investigate and discuss in the DEIR and FEIR the Project's potentially substantial adverse effects on the transit 22 CSU implicitly concedes that SANDAGand MTSarenot "responsible agencies" under CEQA required to provide CSU "with specific detail about the scope and content of the environmental informationrelated to [that] agency's area of statutory responsibility that must be included in the Draft EIR." (Guidelines, § 15082(b).) Accordingly, neither SANDAGnor MTShadanaffirmative duty under CEQAto provide CSU with specific data regarding thetrolley station's capacity or specific criteria for determining whether the Project would have a significant effect on the transit system. 75 system, including whether the capacity of the trolley station and system may be exceeded and thereby cause rider congestion at the station, denigration oftrolley service, infrastructure, androlling stock, and additionalinfrastructure and operating costs.23 (Cf. Woodward ParkHomeowners Assn., Inc. v. City ofFresno (2007) 150 Cal.App.4th 683, 728-729 ["There is no foundation forthe idea that [a lead agency] can refuse to require mitigation of an impact solely because another agency did not provide information."].) Furthermore, although Appendix G of the Guidelines does not specifically list transit as an environmental factor under CEQAorset forth criteria for determining when transit impacts are significant, those omissions do not support CSU's assertion that it need not address the Project's effects on the trolley system. That appendix is only an illustrative checklist and does not set forth an exhaustive list of potentially significant environmental impacts under CEQA orstandards ofsignificance for those impacts. (See, e.g., Amador, supra, 116 Cal.App.4th at pp. 1108-1111.) Also, the lack of precise quantification or criteria for determining whether an environmental effect is "significant" underCEQA does not excuse a lead agency from using its best efforts to evaluate whetheran effect is significant. (Berkeley, supra, 91 Cal.App.4th at p. 1370.) 23 Likewise, CSU did not investigate and discuss in the DEIR and FEIR the other potentially substantial adverse effects of the Project on the transit system, such as high usage at peak times that exceeds the capacity or causes congestion of thetrolley system or SDSUtrolley station (rather than simply considering average daily capacity limitations), and whether the Project's effects, when considered cumulatively with other planned developments or other factors affecting the transit system, will have a significant effect on the transit system. 76 Bynot substantively investigating and addressing the Project's impacts on the transit system and whether those impacts maybesignificant environmental impacts under CEQA, CSU didnot proceed in a manner required by law and therefore abusedits discretion under CEQA. (§ 21168.5.) Because CSU did not comply with procedures required by law,its decision must be set aside as presumptively prejudicial. (Sierra Club, supra, 7 Cal.4th at p. 1236.) CSU's noncompliance with CEQA's substantive requirements and its information disclosure provisions precluded relevant information from being presented to CSU andthe general public and "constitute[d] a prejudicial abuse of discretion within the meaning of Sections 21168 and 21168.5, regardless of whether a different outcome would haveresulted if [CSU] had complied with those provisions." (§ 21005, subd. (a); County ofAmadorv. El Dorado County Water Agency, supra, 76 Cal.App.4th at p. 946.) "In other words, when [CSU]fail[ed] to proceed as required by CEQA,harmlesserror analysis is inapplicable. The failure to comply with the law subverts the purposes of CEQAifit omits material necessary to informed decisionmaking and informed public participation." (County ofAmador,at >. 946.) Thetrial court erred by concluding CSU adequately investigated and addressed the Project's potential impacts on public transit.24 24 For the same reasonsdiscussed above, CSU, as SANDAGand MTSassert, also failed to adequately respond to SANDAG's comments to the DEIR as CEQA requires. (§ 15088.) CSU was required to make a goodfaith, reasoned analysis in response to SANDAG's comments. (Berkeley, supra, 91 Cal.App.4th at p. 1367.) As in Berkeley, CSU's responses to SANDAG's comments were conclusory and evasive and did not reflect a meaningful attempt to determine whether the Project's effects on the transit system would be significant. (/d. at p. 1371.) 77 D SANDAGand MTSalso assert there is insufficient evidence to support CSU's finding that the Project will not cause any significant effect on publictransit (e.g., trolley facilities and service). SANDAG and MTSalso argue CSU's finding that the Project will have no significant effect on thetransit system is legally deficient. After CSU did not substantively address in the DEIR whetherthe Project's increased trolley use would cause a significant effect, whether direct or indirect, on the trolley system or other physical conditions within the area (§§ 21060.5, 2100, subd. (b)(1)), SANDAG commented on the DEIRandraised that issue. In response, CSU made a conclusory, and unsupported, statement in the FEIR that "any transit 'impacts' that may result from the [Project] relating to increased transit ridership are not subject to CEQAanalysis as they are not environmental impacts recognized under CEQA." In the Findings, CSU then madethe conclusory finding that the Project would have "[n]o significant impacts on transit systems." (Italics added.) In so finding, CSU did not support its finding of no significant effect on the transit system with a brief statement of its.reasons for that finding. If an agency's investigation showsparticular environmental effects of the project will not be potentially significant, the EIR must "contain a statement briefly indicating the reasons for determining that various effects on the environmentof a project are not significant and consequently have not been discussed in detail in the [EIR]." (§ 21100, subd. (c); see also Guidelines, § 15064(b).) Furthermore, the EIR must include a statement of the agency's reasons,albeitbrief, for its conclusion that a particular environmental impactis not potentially significant. (Amador, supra, 116 Cal.App.4th at p. 1111.) A mere 78 conclusion of insignificance is not adequate to allow meaningful judicial review and constitutes a failure to proceed in the mannerrequired by law. (/d. at pp. 1111-1112.) Accordingly, CSU's conclusory finding that the Project will not have a significant effect on the transit system is legally deficient under CEQA. | More importantly, there is insufficient evidence in the administrative record to support CSU's finding the Project will not have a significant effect on the transit system. On appeal, CSU does notcite or rely on any substantial evidence showing the projected increase in trolley usage resulting from the Project's additional enrollment will not cause a "potentially substantial, adverse change"in or to the transit system. (§ 21068 [" ‘Significant effect on the environment’ meansa substantial, or potentially substantial, adverse changein the environment."].) CSU calculated, based on SANDAG's projections, that there will be an increase from 5,982 daily boardings to 14,714 daily boardings at the SDSUstation by the 2024/2025 academic year. Of those 14,714 daily boardings, CSU calculated that 11,624 will be SDSU-related boardings, an increase of 6,898 boardings over the 4,726 SDSU-related boardings in 2006/2007. Therefore, there will be an increase of almost 150 percent in the number of SDSU-related ridersfrom 2006/2007 to 2024/2025. However, CSU did not conduct any substantive investigation or analysis regarding whetherthat substantial increase in SDSU-related trolley usage may affect the trolley system. Furthermore, CSU does not cite, and weare not aware of, any evidence in the administrative record showing the Project's increased trolley usage will not have a significant effect on the transit system. 79 Although CSU argues an SDSU economicbenefit analysis contained in the administrative record provides support forits finding that the Project will not have a significant effect on the transit system, we conclude that analysis does not constitute substantial evidence in support of CSU's finding. CSU cites Appendix Q to the FEIR, titled "SDSU Economic Impact Report." That report, dated July 19, 2007, was prepared by ICF International for SDSU anddescribes the report as "Measuring the Economic Impact on the Region." Bythe nature of the issues it addresses, the economic benefit report does not directly investigate or address whether the Project's increased trolley usage will have a significant environmental effect on the transit system. Nevertheless, in summarizing the Project's impacts on transportation, the report stated: "An estimated 12,000 students, faculty and staff can be accommodated by the SDSUtrolley station." The report stated: "The trolley can accommodate 12,000 students, faculty and staff." That statement is supported by a citation to footnote 21, which is a reference to the website "http://www.scup.org/about/Awards/2006/San_DiegoState.html." None of the parties discuss, muchless provide us with information regarding, that supporting website. Furthermore, the website's information is not contained in the administrative record. Without further information regarding the supporting citation, we conclude the evidence is insufficient to support the economic benefit report's statement that the SDSU trolley station can accommodate 12,000 students, faculty and staff. Accordingly, that unsubstantiated conclusory statement in the economic benefit report cannot provide substantial evidence for a finding that SDSU'strolley station capacity is 12,000 orthat 80 the Project will not have a significant effect on the transit system.25 "{U]nsubstantiated ‘opinion or narrative, evidence whichis clearly inaccurate or erroneous .. 1S not substantial evidence. Substantial evidence shall include facts, reasonable assumptions predicated uponfacts, and expert opinion supported by facts." (§ 21082.2, subd.(c); Guidelines, § 15384.) In arguing there is substantial evidence to support its finding, CSU primarily argues SANDAGand MTSfailed to provide it with data or other information that would. allow it to determine whether the Project would havea significant effect on the transit system. CSU apparently argues that because those agencies did not provide it with evidence of the capacity limitations of the SDSUstation or otherwise show the Project would havea significant effect on the transit system,there is substantial evidence to support its finding that the Project will not have a significant effect on the transit system. In so arguing, CSU either misconstrues and/or misapplies the substantial evidence 25 Evenhad the administrative record included the information set forth on that website, we would nevertheless reach the same conclusion. That website reflects a 2006 architectural awardor citation given to SDSU bythe Society for College and University Planning. In describing the award for the SDSUtransit station, the website states: "The trolley has allowed the University to expand without adding parking for the next 20-25 years. They plan to add12,000 students without new parking and now havesurplus parking." (See .) Contrary to the economicbenefit report's statement, the website does not state that the SDSUtrolley station can accommodate 12,000 students, faculty and staff. Because the report's citation to the website provides no support for its statement, the report's unsupported statement that the SDSU trolley station can accommodate 12,000 students, faculty andstaff, in turn, provides no support for CSU's assertion that the SDSUtrolley station can accommodate 12,000 SDSU-related users and therefore the Project's additional trolley users will not exceed the SDSUstation's capacity or otherwise cause a significant effect on the transit system. 81 standard of review under CEQA. "Substantial evidence" under CEQAis 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 mightalso be reached." (Guidelines, § 15384, subd. (a).) Although we makeall reasonable inferences from the evidence that would support the agency's determinations and resolve all conflicts in the evidence in favor of the agency's decision (Save Our Peninsula - Committee v. Monterey County Bd. ofSupervisors, supra, 87 Cal.App.4th at p. 117), "{a]rgument, speculation, unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous. . . is not substantial evidence. Substantial evidenceshall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts." (§ 21082.2, subd. (c); Guidelines, § 15384.) SANDAGand MTScorrectly assert there is no evidence in the administrative record to support CSU's finding that the Project's increased trolley usage will not cause a potentially substantial adverse changeto the transit system. (§ 21068.) CSU's finding that the Project will have no significant effect on the transit system is based on speculation, unsubstantiated opinion and narrative or evidencethat is clearly inaccurate or erroneous, which does not provide substantial | evidence. (§ 21082.2, subd. (c); Guidelines, § 15384.) Accordingly, the trial court erred by concludingthere is substantial evidenceto support CSU's finding that the Project will not have a significant effect on the transit system. DISPOSITION The judgmentis reversed in part and affirmed in part, and the matter is remanded to the trial court with directions to enter a new judgmentgranting in part and denying in 82 part the petitions for writs of mandate consistent with this opinion. The court shall issue a writ of mandate ordering CSU to voidits certification of the FEIR and adoption of the Findings andto void its approval of the Project based on noncompliance with CEQAas set forth in this opinion. Thetrial court shall also issue an order that the Project may be considered for re-approval by CSU if a new, legally adequate EIR is prepared, circulated for public comment, and certified in compliance with CEQA consistent with the views expressed in this opinion. Appellants are awarded costs on appeal. McDONALD,J. WE CONCUR: McCONNELL,P.J. O'ROURKE,J. 83 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a partyto this action. I am employed in the County ofLos Angeles, State of California. My businessaddressis 15760 Ventura Boulevard, 18th Floor, Encino, California 91436-3000. On January 20, 2012, I served true copiesofthe following document(s) described as PETITION FOR REVIEW onthe interested parties in this action as follows: SEE ATTACHED SERVICE LIST BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresseslisted in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with Horvitz & Levy LLP’s practice for collecting and processing correspondence for mailing. On the same day that the correspondenceis placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postagefully prepaid. I declare under penalty ofperjury under the laws of the State of California that the foregoingis true and correct. Executed on January 20, 2012, at Encino, California. nonMarchken, Inez Martinez 8 SERVICE LIST Christine Marie Leone (SBN 208803) (Counselfor Plaintiffs and Appellants City Office of the City Attorney of San Diego and Redevelopment Agency 1200 3rd Avenue, Suite 1100 of the City of San Diego) San Diego, CA 92101 Phone: (619) 533-6392 Fax: (619) 533-5856 Email: leonec@sandiego.gov Margaret M. Sohagi (SBN 126336) (Counselfor Plaintiffs and Appellants San Philip A. Seymour (SBN 116606) Diego Association of Governments and Nicole H. Gordon (SBN 240056) San Diego Metropolitan Transit System) The Sohagi Law Group, LLP 11999 San Vicente Blvd., Suite 150 Los Angeles, CA 90049 Phone: (810) 475-5700 Fax: (310) 475-5707 Email: msohagi@sohagi.com pseymour@silcom.com ngordon@sohagi.com John F. Kirk (SBN 149667) (Counsel for Plaintiffs and Appellants San Deputy General Counsel Diego Association of Governments and San Diego Association of Governments San Diego Metropolitan Transit System) 401 “B” Street, Suite 800 San Diego, CA 92101 Phone: (619) 699-1997 Fax: (619) 699-1995 Email: jki@sandag.org Mark J. Dillon (SBN 108329) Michael S. Haberkorn (SBN 159266) Danielle K. Morone (SBN 246831) Gatzke Dillon & Balance LLP 1525 Faraday Ave., Suite 150 Carlsbad, CA 92008 Phone: (760) 431-9501 Fax: (760) 431-9512 Email: mdillon@gdandb.com mhaberkorn@gdandb.com dmorone@gdandb.com Brandon S. Walker (SBN 254581) State of California Department of Transportation 1120 N Street (MS 57) Sacramento, CA 95812 Phone: (916) 654-2630 Fax: n/a Email: brandon.walker@dot.ca.gov Sabrina V. Teller (SBN 215759) Remy, Thomas Moose and Manley 455 Capitol Mall, Suite 210 Sacramento, CA 95814 Phone: (916) 443-2745 Fax: (916) 443-9017 Email: steller@rmmenvirolaw.com Clerk Court of Appeal Fourth Appellate District Division One 750 “B” Street, Suite 300 San Diego, CA 92101 Hon. Thomas P. Nugent San Diego Superior Court North County Division Vista Regional Center 325 S. Melrose Dr., Dept. 30 Vista, CA 92081 (Counsel for Defendant and Respondent Board of Trustees of the California State University) (Counsel for Amicus Curiae Department of Transportation) (Counsel for Amicus Curiae League of California Cities and California State Association)