NEIGHBORS FOR SMART RAIL v. EXPOSITION METRO LINE CONSTRUCTION AUTHORITY (LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION)

Real Parties in Interest, Los Angeles County Metropolitan Transportation Authority and Los Angeles County Metropolitan Transportation Authority Board, Answer Brief on the Merits

Cal.October 10, 2012

Case No. $202828 IN THE SUPREME COURT ow. ELDS STATE OF CALIFORNIA 7, . soeOCT 10 2012 NEIGHBORS FOR SMART RAIL, >»... A Non-profit California Corporation, Frank A. iVicGuire Clerk Petitioner and Appellant, y Deputy EXPOSITION METRO LINE CONSTRUCTION AUTHORITY; EXPOSITION METRO LINE CONSTRUCTION AUTHORITY BOARD, Respondents, LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY; LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY BOARD, Real Parties in Interest and Respondents. Second District Court ofAppeal, Division 8 (Case No. B232655) Certified for Partial Publication Affirming a Judgment and Order by the Superior Court of the State of California for the County ofLos Angeles (Case No. BS125233) Honorable Thomas J. McKnew,Jr. ANSWERBRIEF ON THE MERITS OFFICE OF THE COUNTY REMY MOOSE MANLEY, LLP COUNSEL TIFFANY K. WRIGHT,210060 COUNTY OF LOS ANGELES SABRINA V. TELLER, 215759 JOHN F. KRATTLI, 82149 AMANDAR.BERLIN, 229357 County Counsel 455 Capitol Mall, Suite 210 RONALD W. STAMM,91919 Sacramento, CA 95814 Principle Deputy County Counsel Telephone: tie) 443-2745 One Gateway Plaza Facsimile: (916) 443-9017 Los Angeles, CA 90012 Telephone: 213) 922-2525 » Facsimile: (213) 922-2530 Attorneysfor Real Parties in Interest and Respondents LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY; LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY BOARD Case No. §202828 IN THE SUPREME COURT STATE OF CALIFORNIA NEIGHBORS FOR SMARTRAIL, A Non-profit California Corporation, Petitioner andAppellant, Vv. EXPOSITION METRO LINE CONSTRUCTION AUTHORITY: EXPOSITION METRO LINE CONSTRUCTION AUTHORITY BOARD, Respondents, LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY; LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY BOARD, Real Parties in Interest and Respondents. Second District Court of Appeal, Division 8 (Case No. B232655) Certified for Partial Publication Affirming a Judgment and Order by the Superior Court of the State of California for the County of Los Angeles (Case No. BS125233) Honorable Thomas J. McKnew,Jr. ANSWERBRIEF ON THE MERITS OFFICE OF THE COUNTY REMY MOOSE MANLEY, LLP COUNSEL TIFFANY K. WRIGHT, 210060 COUNTY OF LOS ANGELES SABRINA V. TELLER, 215759 JOHN F. KRATTLI, 82149 AMANDAR. BERLIN, 229357 County Counsel 455 Capitol Mall, Suite 210 RONALD W. STAMM,91919 Sacramento, CA 95814 Principle Deputy County Counsel Telephone: (916) 443-2745 One Gateway Plaza Facsimile: (916) 443-9017 Los Angeles, CA 90012 Telephone: (213) 922-2525 Facsimile: (213) 922-2530 Attorneysfor Real Parties in Interest and Respondents LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY; LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY BOARD TABLE OF CONTENTS Page(s) TABLE OF CONTENTS.........0cceeee seeeseeaeeseesaceeaeeaeceeeaeeeseaeesenaeenieeeaeesatens i TABLE OF AUTHORITIES 0.0... eecceecsteeeeeeeeeseeseseeseaeeecesseeeseaeeseesseeeaes iii INTRODUCTION.....cccccscccsccsecseeeeeeeeeeeceeseeescseccsssseesaeenaeeessecaesesaeseseseesateas I STATEMENTOF ISSUES.....c ce eeeeeeteteeteeetseeseeeseees seseseeaeseeseseseeseeeaseeesenes2 STANDARD OF REVIEW sesssseeeseasesetinssstisee ecenecneeaeeeseaeeaeeaeeseatesseesaeeaes3 ARGUMENT......cccesccsssssessseccrseeceseeseeeeeeceeeceaeecaeeseresaessecesaaeeaessesesseceseesatenees7 A. The use of projected future conditions as a baseline can yield the most useful information regarding a project’s impacts and is appropriate when supported by substantial CVICENCE. oo. eeeeeeeeeeeeesseceeeaneesseeesaceseaeeeecueereceeesatesesesesesnseeeesesseseseaesees 7 1. The CEQA Guidelines and California Supreme Court precedentestablish that an agency’s selection ofa baseline is an exercise of the agency’s discretion and will be upheld if supported by substantial evidence.............. ll a. An agency’s choice of a baseline is inherently a factual question, subject to the substantial evidence standard Of reVieW........ccccceceseseseereeetserenees 14 2. Communitiesfor a Better Environmentdid notreject the use of a future baseline; the Court should reject the rigid rule propounded in Sunnyvale West and Madera Oversightas it conflicts with the Court’s guidance in Communitiesfor a Better Environment.............20 a. The use of a 2030 baselineis not the sort of “illusory” or “hypothetical” baseline this Court rejected in Communitiesfor a Better ENViIVONMEN..eeceecseeeeenceeeceecestecesenscececeeessueseesessenneseesns24 3. CEQAdoesnot prohibit the use of a projected future | baseline, nor does the previous case law interpreting CEQA. vesicseeseseeseseeseneeseeeseeecsesenesaecaecesaseeesceesseesenesiesaseeenenaeetts27 i TABLE OF CONTENTS (Continued) Page(s) a. The same court that decided Sunnyvale West - has expressly held that agencies have discretion to establish a future baseline where that choice is supported by substantial evidence. 0.0...30 Petitioner fails to cite any substantial evidence to support its claims that the project may have near-term Significant impacts. ......c.cccseccecececsesesseeeeecesescsestsateestseeeeseenees33 B. Mitigation Measure TR-4 adequately mitigates the potential for parking spillover impacts. ........c.ceceeee eee eee tetee tenon taeneey 36 l. Mitigation Measure TR-4 is enforceable and has been incorporated into the project...eeeeeeccereereeeseeteeeeeeeees 39 2. The Expo Authority did not improperly defer the formulation Of MitigQation.........ceeecscccesesececseseessseeesteesenees44 3. There is substantial evidence that Mitigation Measure TR-4 will reduce theimpacts ofparking intrusion in surrounding neighborhoods. 0.0.0... eecceceeseeeeeeteseeeeeneeeaeesaeeees 50 CONCLUSION..... cc cecceceeesesreeererreee teatsseceeseeaceesanecaesaeeseceescessetstenetatens 53 CERTIFICATE OF WORD COUNT 0... cececceseeseaceeteessaceeteeeeesearterseeeaes 54 ii TABLE OF AUTHORITIES California Cases Page(s) Al Larson Boat Shop, Inc. v. Bd. ofHarbor Coms. (1993) 18 Cal.App.4th 729 occeeceeececeseeneeceseeeeneeeeneeenesseesseseeesessresseees 5 Baird v. County ofContra Costa (1995) 32 Cal.App.4th 1464 ooeccsesesecrecsesseseeaeeseeeaeecssasteeenesenesseenteas 8 Bakersfield Citizensfor Local Control v. City ofBakersfield (2004) 124 Cal.App.4th 1184oececeeeeesnesseeeceaeeneeseesereseeseseseeserenes 39 Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263 ...cecceccecceesseeeessecsseeeseeeelecsseeeeseseseeeeesectseensseeeeeseeeetes 8 California Native Plant Society v. City ofRancho Cordova (2009) 172 Cal.App.4th 603 occeeeesesenesseesseeeeesseesneeteesnessetertees 5, 44, 46 Chaparral Greens v. City ofChula Vista (1996) 50 Cal.App.4th 1134 ooeeecsenecneesneeeessnaeeeeesaeeeeseaseeeseesareeessens 9 Cherry Valley Pass Acres and Neighbors v. City ofBeaumont (2010) 190 Cal.App.4th 316 oo. eecseseeeseestsesceeeeeatetesereseseseseeeats 18, 19 Citizens ofGoleta Valley v. Board ofSupervisors (1990) 52 Cal. 3d 553 wee ceeeceeceesseeeseeessecececeecsnnessessaceesesseesseeseneesseeneas 6, 7, 8 Communitiesfor a Better Environmentv. City ofRichmond (2010) 184 Cal.App.4th 70 occ ccceeeessessesessecereeeeersneeeseeaessaeceneeeeeeaeeeseeaee 48 ‘Communitiesfor a Better Environmentv. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310oe11, 15, 18, 21, 22, 23, 24, 27, 28, 32 Dry Creek Citizens Coalition v. County ofT:ulare (1999) 70 Cal.App.4th 20 ..cccccccsssssssssssesssssssssssveccessssseesessesensessessaseenseseseeseee 9 ili TABLE OF AUTHORITIES California Cases — (Continued) Page(s) El Morro Community Assn. v. California Dept. ofParks and Recreation : (2004) 122 Cal.App.4th 1341 occeseseseeesecceeeesececneecneeeessateaeeeeees 6, 52 Endangered Habitats League, Inc. v. County ofOrange (2005) 131 Cal. App. 4th 777 o..ccceeseseesessessesesseetseceesecseesseeeeeeaeeteeearesseeees 49 Environmental Planning and Information Council v. County ofEl Dorado (1982) 131 Cal.App.3d 350 oeeeeeesesesseeneerseeeneeseesaeeeeenseeeteeeneesens 19 Fat v. County ofSacramento (2002) 97 Cal.App.4th 1270 oo... cceesecssesecnesserseeeeeseeseeneeeseeeaceeeenseeneaees 17 Federation ofHillside & Canyon Assns. v. City ofLos Angeles (2000) 83 Cal.App.4th 1252 ooo.eerecesses eeesaneeereeeee 4,42, 43 Gray v. County ofMadera (2008) 167 Cal.App.4th 1099 oooeecseeeseeeseeeesseeteeeseeeseaesneeseeesenersees 48 In re Lane (1962) 58 Cal.2d 99 ooo. ccccseseeessscnesecesseesscsceseeesevaeseaeseatenssesseseaaessaeesseereey 32 Kenney v. Antioch Live Oak SchoolDist. (1936) 18 Cal.App.2d 226 oo... ceiceecessseessceseeneenerseeneeesessaevaesereraessatsatenees 32 Laurel Heights Improvement Assn. v. Regents of University ofCalifornia (1988) 47 Cal. 3d 376 «oe eesesseeseeseeesesteeseesneseenens 3, 6, 7, 8, 12, 42, 48, 52 Lincoln Place Tenants Assn. v. City ofLos Angeles (2007) 155 Cal.App.4th 425 0. cececeeseseeeessseeseesenesenesseeseesseesssseseaes 4] Madera Oversight Coalition, Inc. v. County ofMadera (2011) 199 Cal.App.4th 48 ooo.eeeseeecneeeeeeneeeetesesseesteereeeaes 9, 28, 41 Neighborsfor Smart Rail v. Exposition Metro Line Constr. Auth. (2012) 205 Cal.App.4th 552 o..eccesesesseesesesereesesnenensssersseeesesenssenessseenees 29 iv TABLE OF AUTHORITIES California Cases (Continued) Page(s) Pfeiffer v. City ofSunnyvale (2011) 200 Cal.App.4th 1552oeeeeeeeeceeeereeeeees 13, 14, 15, 30, 32, 33 Rialto Citizensfor Responsible Growth v. City ofRialto (2012) 208 Cal. App. 4th 899 ooccescceceeseestecesesseeeeesseeeseeeeessetensesseens 49 Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d LOL] occ cecceeesscceesetsessseenseesesessesseesesceecseeneens 46 San Franciscans Upholding the Downtown Planv. City and County ofSan Francisco (2002) 102 Cal.App.4th 656 oe cceccesesseceeceseeeeseeeececesseecneseeseeseatensens 8, 38 San Joaquin Raptor Rescue Center v. County ofMerced (2007) 149 Cal.App.4th 645 oo. cececsneeceeenereseenresieeesesssessecsressneeaes 17, 48 Santa Clarita Organizationfor Planningthe Environmentv. County ofLos Angeles (2007) 157 Cal.App.4th 149 oocccecessneeneceseecteeecseesesessesesseeseeeseesneesaseens 5 Save Our Peninsula Committee v. Monterey County Bd. ofSupervisors (2001) 87 CalApp.4th 99 oeceecceessenesteeseesseeesecssesesseseesesesseesaes 4,17, 31 SaveOur Peninsula Monterey County Bd. ofSupervisors (2001) 87 Cal.App.4th 99 ooeceeeescertseneeeeeeeseesaesesseseeesieseeesseeeeeeaeses 16 Sequoyah Hills Homeowners Assn. v. City ofOakland (1993) 23 Cal.App.4th 704 occcceceecececseesecssecesecseessecssesessesssesaseesssseeeseeeas 6 State ofCal. v. Super. Ct. (1990) 222 Cal.App.3d 1416 oeeeecceceeseseteecsecesesseeseestessssessneesesseees 52 Sunnyvale West NeighborhoodAssn. v. City ofSunnyvale City Council (2010) 190 Cal.App.4th 1351 oceeeeeeeeeeseneeeeeneeeisseessesceeeneaseeeesneey 9, 28 v TABLE OF AUTHORITIES California Cases (Continued) Page(s) Topanga Assn. for a Scenic Community v. County ofLos Angeles (1974) 11 Cal.3d-506 oo. cccceeccecceseeseceeeeceeeeeeeeeeseeseeesseeecsnaeeesesseesenesenaey 6, 7 Topanga Assn. for a Scenic Community v. County ofLos Angeles (1989) 214 Cal.App.3d 1348 occeeseseseecseeesseeeeceseesseeeseeseeseresesesseessenes 6 Tracy First v. City ofTracy (2009) 177 Cal.App.4th 912 ooo. cceesecseesereceeeneeeseeesaeeeseaeesesesseesenseneeaes 5 Vineyard Area Citizens for Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4th 412wesc4,12, 24, 42 Woodward Park Homeowners Assn. v. City ofFresno (2007) 150 Cal.App.4th 683 ooo. eeecseeseeseseseeseecnreeeseeeseaeeaseateeesereeeees 19 vi TABLE OF AUTHORITIES California Codes Page(s) Evidence Code. Section 664 iceeccceceseeceeeees 5, 52 Public Resources Code 21000 et SQ. .....eeecesseeesteeees 1 21003 oooeeeeceeecseseseeeteeesseeeseeens7 21003, subd. (f).....ceeeeeeeeeee7 21060.5 ooo eeececeseesrseeeeseeeees 10 21080, subd. (€)(2)...........00084 21081eeeeeceeeeeseeeeeeeteees 39 21081, subd. (a)(1)........40 21081, subd. (a)(2)........e40 21081.6 ooo eeeseeteesteeeeeees41 21081.6, subd.(b)......... 39, 43 21082.2, subd.(C) .....eee4 21083.1 oe ecececssecsteesssseesseeees 8 211673 eeecceeteeeeeeenes 5, 52 21168 woe. eeeceeesceesteessetessseeens 3 QLLG8.S occ ceeceteeeeeetseeeseeees 3 Public Utilities Code 132615, subd. (a)(1)............. 51 132615. subd. (a)(3)-(4)....... 51 California Regulations California Code ofRegulations, Title 14, "CEQA Guidelines" section 15091, subd. (a)(1).......0....40 15091, subd. (a)(2)...........40 15091, subd. (b) ....... eee39 15097, subd. (C) oo...4] 15121, subd. (b) «0...eee7 15125 Leeeeeteeeeeeeeteeenees29 15125, subd. (a) ............ 22, 27 15126.2, subd.(a) 0...27 15126.4, subd. (a)(1)(B) 44, 45 15126.4, subd.(a)(2)..........4.39 15126.4, subd.(b)(3)..... 41, 42 15384, subd. (a)... .ceeeseeeee4 Vii TABLE OF AUTHORITIES California Codes Page(s) Miscellaneous 16 Cal.Jur.3d (2002) Courts, § 297 oo. cceeseessesceseeeeeeneeeeseesseesesseeenneeaes 32 Remy,et. al., Guide to CEQA (11th ed. 2006) at p. 199...eeeeeeeees 16 Viil INTRODUCTION The Expo Phase 2 Project (“Expo Line”) is a much-neededlight rail transit linethat will serve the Westside of Los Angeles. The Expo Line was approved by the Exposition Metro Line Construction Authority (“Expo Authority’) after many years of careful planning in coordination with the | Los Angeles County Metropolitan Transportation Authority (“Metro”) and the cities through which the line will traverse (Los Angeles, Santa Monica, Culver City). The Expo Lineis part of Metro’s Long Range Transportation Plan (AR 00234). Metro is the planner, coordinator, designer, builder, and operator of much ofthe transportation and transit network in Los Angeles County. Metro therefore has vast experience in planning and analyzing transit projects, Because of the nature and scale of the types of projects that Metro plans, builds, and operates, Metro must necessarily look to the future whenplanning and analyzing projects. Because these projects take years to plan, fund, and build, they will never operate under the present-day conditions, or the conditions existing at the time environmental review under the California Environmental Quality Act (“CEQA”) (Pub. Resources Code, § 21000 et seq.) commences. Furthermore, the types of large-scale transit and transportation projects developed by Metro are not meant to address present-day transit needs. Instead, Metro must look to the future and plan a transit and transportation network that serves the 1 population and employment growth thatis certain to come. For these reasons, it is logical and appropriate that agencies like Metro and Expo Authority would compare a project’s operational impacts against the | conditions that will exist when the project is expected to be fully operational. In this case, there is substantial evidence supporting Expo Authority’s use of conditions in 2030 as the baseline to measure the Project’s traffic, air quality, and climate change impacts. Furthermore, having worked with Metro and the cities of Los Angeles, Culver City, and Santa Monica, to develop parking mitigation, there is substantial evidence that the proposed mitigation for spillover parking impacts will reduce any potential impacts to less-than-significant levels. For these reasons, Expo Authority’s Environmental Impact Report (“EIR”) for the Expo Line should be upheld. STATEMENT OF ISSUES This case presents the following two questions: 1. Whena project is not expected to be completed and operational for many years, does CEQAprohibit an agency from measuring operational impacts against the conditions that will exist when the project is in operation? Stated another way, does an agency abuseits discretion by comparing a | project’s operational impacts against the conditions that will exist when the project is operational? /// /// /// 2. If there is substantial evidence that a mitigation measure will be implemented by another agency, and that the mitigation measure will be effective to mitigate the particular impact for whichit is designed, does an agencyabuseits discretion in finding that the impact will be mitigated to a less-than- significant level? In regard to the first question, whatis not at issue in this litigation is whether the year 2015 would be a better baseline than 2030 for analyzing impacts. Prior to project approval and the in the Court ofAppeal, Petitioner did not argue that 2015 was an appropriate baseline. In fact, in the Court of Appeal, Petitioner argued only that, as a matter oflaw, the Expo Authority was prohibited from using any future baseline. Thus, Petitioner has waived any argumentthat a 2015 baseline — a future baseline — should have been employedin this case. Furthermore, Petitioner has waived any argument that use of a 2030 baseline is not supported by substantial evidence. STANDARD OF REVIEW In a CEQAcasesuchasthis one, the reviewing court determines whether the respondent public agency prejudicially abusedits discretion either by failing to proceed in the manner required by law or becauseits decision is not supported by substantial evidence. (Laurel Heights Improvement Assn. v. Regents of University ofCalifornia (1988) 47 Cal. 3d 376, 392 (Laurel Heights I); Pub. Resources Code, §§ 21168, 21168.5.) In determining whether an agency abusedits discretion, the “court must adjust . its scrutiny to the nature ofthe alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute overthe facts.” (Vineyard Area Citizensfor Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 435 (Vineyard).) If the dispute is predominately one of facts, the Court must uphold the agency’s actionsif they are supported by substantial evidence. (/bid.) “Substantial evidence” means “enoughrelevant 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.” (CEQA Guidelines, § 15384, subd. (a); see also Pub. Resources Code, §§ 21080, subd. (e)(2), 21082.2, subd. (c).) Unsubstantiated opinion or narrative is not substantial evidence under CEQA.(Save Our Peninsula Committee. v. Monterey County Bd. ofSupervisors (2001) 87 Cal.App.4th 99, 122; CEQA Guidelines, § 15384, subd. (a).) Challenges to the scope of the analysis, the methodologyfor studying an impact, and the reliability or accuracy ofthe data present factual issues, so such challenges must be rejected if substantial evidence supports the agency’s decision as to those matters and the EIR is notclearly inadequate or unsupported.” (Federation ofHillside & Canyon Assns. v. City ofLos Angeles (2000) 83 Cal.App.4th 1252, 1259 (Federation).) Although Petitioner has tried to couch its arguments as questions of law, subject to de novo review, both issuesraisedin this litigation are clearly subject to the substantial evidence standard. As set forth below, 4 numerous cases have held that the agency has discretion to establish the “baseline” for purposes of analysis of impacts. Similarly, Petitioner’s challenge to the parking mitigation measure boils down to a question of whether the Expo Authority’s determination that impacts will be reduced to a less-than-significant level is supported by substantial evidence. The Court must presumethat the agency complied with the law. (Evid. Code, § 664; Al Larson Boat Shop, Inc. v. Bd. ofHarbor Coms. (1993) 18 Cal.App.4th 729, 740 (Al Larson Boat Shop).) An EIR is presumed adequate (Pub. Resources Code, § 21167.3) and “the party challenging the EIR has the burden of showing otherwise.” (Santa Clarita Organizationfor Planning the Environment v. County ofLos Angeles (2007) 157 Cal.App.4th 149, 158.) Petitioner must show the record contains no substantial evidence supporting the disputed conclusions.Petitioner neither carries that burden by pointing only to excerpts of the record favoring its position nor by “[p]ointing to evidence of a disagreement with other agencies.” (California Native Plant Society v. City ofRancho Cordova (2009) 172 Cal.App.4th 603, 626 (CNPS v. Rancho Cordova).) This approach“is not enough to carry the burden of showing a lack of substantial evidence to support the City’s finding.” (Zbid.) A petitioner challenging an EIR “must lay out the evidence favorable to the other side and show whyit is lacking. Failure to do so is fatal.” (Tracy First v. City ofTracy (2009) 177 Cal.App.4th 912, 934.) GeeEven so, the Court does not “‘pass upon the correctness’ of the EIR’s environmental conclusions, but only its sufficiency as an informative document.” (Citizens ofGoleta Valley v. Board ofSupervisors (1990). 52 Cal. 3d 553, 564 (Goleta IT).) A court must uphold the 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.” (El Morro Community Assn. v. California Dept. ofParks and Recreation (2004) 122 Cal.App.4th 1341, 1349 (El Morro).) The Court looks “not for perfection but for adequacy, completeness, and a good faith effort at full disclosure.” (Sequoyah Hills Homeowners Assn. v. City ofOakland (1993) 23 Cal.App.4th 704, 712.) The Court must uphold a decision supported by substantial evidence even if there is substantial evidence to the contrary. (Laurel Heights I, supra, 47 Cal.3d at pp. 392-393.) Assuch,in applying the substantial evidence standard, ““‘the reviewing court must resolve reasonable doubts in favor of the administrative finding and decision.” (Laurel Heights I, supra, 47 Cal.3d at p. 393 (quoting Topanga Assn. for a Scenic Community v. County ofLos Angeles (1974) 11 Cal.3d 506, 514 (Topanga 1)).) The findings of a public agencymust “be liberally construed to support rather than defeat the decision under review.” (Topanga Assn. for a Scenic Community v. County ofLos Angeles (1989) 214 Cal.App.3d 1348, 1356 (Topanga I/).) All reasonable doubts must be resolvedin favorofthe decision. (Topanga I, 6 supra, 11 Cal.3d at p. 514.) A court may not interfere with the agency’s discretion regarding the choice of the action to be taken. (See CEQA Guidelines, § 15121, subd. (b) [“the information in the EIR does not control the agency’s ultimate discretion on the project”); Goleta IL, supra, 52 Cal.3d at p. 576 [the wisdom of approving a projectis “a delicate task which requires a balancing ofinterests, is necessarily left to the sound discretion of local officials and their constituents”].) Accordingly, a court must defer to the agency’s determination when supported by substantial ~ evidence. (Laurel Heights I, supra, 47 Cal.3d at p. 409.) ARGUMENT A. Theuse of projected future conditions as a baseline can yield the most useful information regarding a project’s impacts and is appropriate when supported by substantial evidence. In enacting and interpreting CEQA,both the Legislature andthe Supreme Court have emphasized that resources expended in the environmental review process should be directed towards mitigating adverse environmental impacts, rather than producing uninformative studies. For example, Public Resources Codesection 21003 declaresthat: All persons and public agencies. involved in_ the environmental review process [are] responsible for carrying out the process in the most efficient, expeditious manner in order to conserve the available financial, governmental, physical, and social resources with the objective that those resources may be better applied toward the mitigation of actual significant effects on the environment. (Pub. Resources Code, § 21003, subd.(f).) 7 While highlighting a concern for procedural efficiency, this statutory language explicitly emphasizesthe importance of mitigating significant environmental effects. The statute thus suggests that, in the Legislature’s view, money directed towards actually preventing or reducing significant environmental damage maybebetter spent than money spentsolely on whatthis Court has called “generat[ing] paper.” (Goleta IT, supra, 52 Cal.3d 553, 564 [“[t]he purpose of CEQAis not to generate paper, but to compel governmentat all levels to make decisions with environmental consequences in mind” (quoting Bozung v. Local Agency Formation Commission (1975) 13 Cal.3d 263, 283)]; see also Laurel Heights I, supra, 47 Cal.3d at p. 393.) The Legislature has also emphasized CEQA’s practical side: It is the intent of the Legislature that courts, consistent with generally accepted rules of statutory interpretation, shall not interpret this division or the state guidelines adopted pursuant to Section 21083 in a manner which imposes procedural or substantive requirements beyond those explicitly stated in this division or in the state guidelines. (Pub. Resources Code, § 21083.1; see also San Franciscans Upholding the Downtown Plan v. City and County ofSan Francisco (2002) 102 Cal.App.4th 656, 689 (San Franciscans).) Accordingly, the courts have repeatedly rejected interpretations of CEQA that create more unnecessary work for the agency but do nothingto protect the environment.(See,e.g., Baird y. County ofContra Costa (1995) 32 Cal.App.4th 1464, 1469 8 [“courts are statutorily prohibited from interpreting CEQA ‘in a manner which imposesprocedural or substantive requirements beyond those explicitly stated in’ CEQAorits implementing guidelines”]; Chaparral Greens v. City ofChula Vista (1996) 50 Cal.App.4th 1134, 1145 [rejecting an expansive interpretation of CEQA“‘in light ofthe legislative admonition that the courts should not interpret CEQA to impose ‘procedural or 999substantive requirements not explicitly stated in the statutes or Guidelines]; Dry Creek Citizens Coalition v. County ofTulare (1999) 70 Cal-App.4th 20, 36 [same].) In the trial court and Court ofAppeal, Petitioner argued that the Expo Authority violated CEQA by comparing the impacts of the project against a future baseline. Citing the cases of Sunnyvale West Neighborhood Assn. v. City ofSunnyvale City Council (2010) 190 Cal.App.4th 1351 (Sunnyvale West) and Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48 (Madera Oversight), Petitioner argued that, as a matter of law, Expo Authority was prohibited from using any baseline that would exist after the project approval.’ But as discussed '/ Now,in its Opening Brief on the Merits, Petitioner argues that a future baseline would be acceptable, as long as that baseline is the opening day of the project. Petitioner never exhausted its administrative remedies as to this argument and has waived this argumentby failing to raise it in the courts below. below, such a bright-line rule is inappropriate for analyzing the operational impacts of long-term projects such asthetransit line at issue here. In this case, using the “existing conditions” as a CEQA baseline would not generate any information ofpractical value. Insisting on using the conditions that exist at the time environmental review is commenced would result in an analysis of impacts based on conditions that will not actually exist at the time the project is in operation. At the time of environmental review for the Expo Line, the project wasstill years away from being fully funded and built, and many years away from being fully operational. Thus, analyzing such a project’s theoretical operational impacts on present environmental conditions, as the holding in Sunnyvale West would require, would not provide the public or decision-makers with any information about the Expo Line’s impacts on the environment in whichit will actually operate. (See Pub. Resources Code, § 21060.5 [“Environment” means “the physical conditions that exist within the area which will be affected by a proposedproject’(italics added).) ~ Sunnyvale West and Madera Oversight represent a departure from a long line of cases emphasizing realenvironmental analysis over meaningless environmental review. As applied to major infrastructure projects, designed to serve the future population, the requirement to compare operational impacts to existing conditions yields no practical information.It therefore does not serve CEQA’s purposes ofinformed 10 decision-making and mitigation of environmental impacts. Furthermore, although the Sunnyvale West court cited this Court’s opinion in Communitiesfor a Better Environment v. South Coast Air Quality ManagementDist. (2010) 48 Cal.4th 310 (Communitiesfor a Better Environment), as the basisfor its prohibition on the use of a future baseline, Communitiesfor a Better Environment does not support such rule. 1. The CEQA Guidelines and California Supreme Court precedent establish that an agency’s selection of a baseline is an exercise of the agency’s discretion and will be upheld if supported by substantial evidence. This Court’s decision should be guided fundamentally by the question of which approach best serves CEQA’s informational purpose. A rigid insistence on a bright-line rule requiring agencies to use existing conditions, or time of approval, or even commencementofthe project underall circumstances forall projects would frequently fail to serve that purpose. Sucha bright-line rule would force the environmental review for many projects to ignore reality and instead construct a hypothetical scenario in which a project that will not be built or be fully operational for many years is compared to existing conditions. There is no such absolute rule in CEQAorthe cases interpreting CEQA. Rather, CEQA and the decisions interpreting CEQA have emphasized the practicality of the statute, and have rejected attempts to impose requirements that do not provide meaningful 1] information regarding environmental impacts. As this Court has recently explained: The EIR’s function is to ensure that government officials who decide to build or approve a project do so with a full understanding of the environmental consequences and, equally important, that the public is assured those consequences have been taken into account. (Laurel Heights I, supra, 47 Cal.3d at pp. 391-392.) For the EIR to serve these goals it must present information in such a manner that the foreseeable impacts ofpursuing the project can actually be understood and weighed, and the public must be given an adequate opportunity to comment on that presentation before the decision to go forward is made. (Vineyard Area Citizensfor Responsible Growth, Inc. v. City ofRancho Cordova (2007) 40 Cal.4th 412, 449-450 [emphasis added].) In the case of CEQA review for a major transit project like the Expo Line, comparing the operational impacts of the project against the conditions as they exist at the time a notice of preparation (“NOP”)is released, or the EIR is published, or even when the project is approved, would provide no practical information. Such projects will not operate under the conditions existing at the time an NOPor EIRis issued or even soonafter the project is approved;nor are they designed to. These projects take many years to construct, and are designed to accommodate future population, employment, and travel demand. When evaluating such a project’s operational impacts, it is therefore logical to compare those impacts against the conditions under which the project will be operating. 12 As discussed below,the holding in Sunnyvale West so heavily relied upon by Petitioner adds unnecessary procedural obligations to the CEQA review for such projects. As further discussed below,it also departs from a long line of cases establishing that agencies have flexibility in establishing the baseline and that such determinations are subject to the substantial evidence standard of review. It may be no surprise then, that the Sixth District Court ofAppeal rather quickly departedfrom the rigid rule it pronounced in Sunnyvale West and returned a short timelater, in Pfeifferv. City ofSunnyvale (2011) 200 Cal.App.4th 1552, to the long-held understanding that such determinations are indeed flexible and should be afforded substantial deference as long as they are supported by substantial evidence. Particularly for long-range transit and transportation planning,it is usually necessary to rely on future conditions, supported by substantial evidence demonstrating the reasonable certainty of those conditions, to provide the most useful information to agency decisionmakers andthe public about the ultimate effects of a proposed transit project such as the onein this case. Far from Petitioner’s dismissive characterization of these conditions as merely “hypothetical”or “illusory”, the record in this case demonstrates that population growth and concomitant increases in vehicle traffic and air pollution are certain to occur, andtherefore that the project would be operating in significantly more congested conditionsat the 13 transportation agencies’ planning horizon in 2030. Furthermore, the record showsthat all of the future traffic infrastructure improvements assumed in the analysis are planned and approved,in place, or under construction. (AR 72:10718-19; AR 476:32006, 32079; AR 509:33216, 33233-33234.) As recognized by the Court of Appeal below,there can be no legitimate contention that conditions would remain unchanged over the next 20 years from the time ofinitiation of project analysis, through project approval and commencementof construction, to full operation of the project. (See, e.g., AR 8:002 18-234.) Therefore, using the 2030 baseline was entirely appropriate for this EIR, as it provided the agencies and the public with a conservative estimate ofpotential project impacts as measured against that baseline. a. An agency’s choice of baseline is inherently a factual question, subject to the substantial evidence standard ofreview. Petitioner’s ever-evolving arguments now paint the selection of a baseline as a procedural question of law, to which the Court should afford no déference. While it is not surprising that Petitioner wouldtry to avail itself of a potentially more favorable review posture, such position is not supported by long-standing case law,including this Court’s recent decision in Communitiesfor a Better Environment. This Court should uphold the reasoning of the Court of Appeal below in this case and the recent decision of the Sixth District in Pfeiffer, supra, 200 Cal.App.4th 1552, both ofwhich 14 faithfully applied this Court’s holding in Communitiesfor a Better Environment, stating the obvious point that an agency’s choice of the proper point in time at whichto set the baseline for comparison of a project’s potential impacts is a factual determination subject to the substantial evidence standard of review. * (See Pfeiffer, supra, 200 Cal.App.4th at pp. 1572-1573, relying in large part on Communitiesfor a Better Environment, supra, 48 Cal.4th at pp. 327-328.) Until Sunnyvale West was published, there was general agreement amongst CEQApractitioners based upon the precedent discussed herein that agencies haddiscretion to establish the proper baseline so long as that determination was supported by substantial evidence that the baseline conditions wererealistic, and so long as using something other than the existing physical conditions did not serve to minimize the impacts ofthe project. (See Brief ofAmici Curiae Twelve Transportation, Transit, and Water Agencies In Support of Respondents Exposition Metro Line Construction Authority et al., Second District Court ofAppeal Case No. B232655, p. 38.) As explained in one treatise often cited by the courts “[n] otably, though, by using the word ‘normally,’ the Resources Agency */ Although Pfeiffer is extremely relevant here, discussion ofthat case is noticeably scant in Petitioner’s opening brief. Instead, Petitioner mentions it only in passing andthentellingly fails to acknowledge that court’s affirmation that the substantial evidence standard of review applies to the agency’s selection of a baseline. (Petitioner’s Opening Brief (“OB”), pp. 14-15.) 15 has implicitly recognized that, at least in some circumstances, a “past”or “future” baseline might be appropriate.” (Remy,et. al., Guide to CEQA (11th ed. 2006) at p. 199.) A longline of decisions establishes that determining the baselineis an inherently factual conclusion. As explained by the court in Save Our Peninsula Committeev. Monterey County Bd. ofSupervisors (2001) 87 Cal.App.4th 99 (Save Our Peninsula): [T]he agency has the discretion to resolve factual issues and to make policy decisions. If the determination of a baseline condition requires choosing between conflicting expert opinions or differing methodologies, it is the function of the agency to make those choices based onall the evidence. (Id. at p. 120.) The issue in Save Our Peninsula was whetherit was proper for the Draft EIR and Final EIRto present various levels of groundwater pumpingasthe potential baseline but to leave the determination of which baseline to use until the end of the environmental review process. The court also dealt with what was an obvious attempt to manipulate the baseline to minimize the project’s impacts. In language cited by this Court in Communitiesfor a Better Environment, the court in Save Our Peninsula explained that: /// /// /// ITI 16 [T]he date for establishing the baseline cannot be rigid one. Environmental conditions may vary from year to year and in some cases it is necessary to consider conditions over a range of time periods. In some cases, conditions closer to the date the project is approved are more relevant to a determination whether the project’s impacts will be significant. [Citation.] For instance, where the issue involved an impact on traffic levels, the EIR might necessarily take into account the normal increase in traffic over time. Since the environmental review process can take a numberof years, traffic levels as of the time the project is approved may be a more accurate presentation of the existing baseline against which to measure the impactofthe project. (Save Our Peninsula, supra, 87 Cal.App.4th at pp. 125-126.) The Save Our Peninsula decision thus established the flexibility agencies have in determining the proper baseline. Nothing in Save Our Peninsula suggests that this analysis would changeifthe agency had substantial evidence that a baseline set in the future was the most appropriate basis for comparing operational impacts. Fat v. County ofSacramento (2002) 97 Cal.App.4th 1270 (Fat) also © confirms thatthe question of the appropriate baseline is subject to the substantial evidence standard of review. (/d. at p. 1278 [“[t]he central issue remains whetherthere is substantial evidence to support County’s decision not to deviate from the norm in selecting [existing conditions] as the baseline”].) In Fat, the issue was whetherto set the baseline prior to the time of the initial study. San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 654 (San Joaquin Raptor), also 17 confirms that the determination of the proper baseline is subject to the substantial evidence standard of review. These cases all preceded the Supreme Court’s decision in Communitiesfor a Better Environment, discussed in greater detail below.If there was any question as to whetherthe baseline is subj ect to the substantial evidence standard, this Court had the opportunity to addressit in the Communitiesfor a Better Environmentdecision. But, the Court upheld these cases on the issue of the standard of review. (Communitiesfor a Better Environment, supra, 48 Cal.4th at pp. 320-323, 327-328.) And because the Court was notaddressing the issue of a projected future baseline, there is no basis for applying the language in Communitiesfor a Better Environmentto preclude, as a matter of law, the use of such a baseline whereit is supported by substantial evidence. — The factual nature of baseline selection was confirmed even more recently in Cherry Valley Pass Acres and Neighborsv. City ofBeaumont (2010) 190 Cal.App.4th 316 (Cherry Valley). In that decision, the court emphasized that establishing the proper baseline for a comparison of impacts is inherently 4 factual question, subject to the substantial evidence standard of review. (/d. at p. 337.) The EIR at issue in Cherry Valley analyzed the impacts of a specific plan. The owners of the property had an adjudicated right to pump 1,484 acre-feet of water per year, and there was evidence that they had pumpedcloseto this amountover the years 18 (although there was no evidence they had ever pumpedthe full amount). In recent years, agricultural activities had ceased, andin the yearprior to EIR preparation, the owners had pumpedonly 50 acre-feet. The project opponents argued the baseline for water supply impacts, which used the 1,484 acre-feet entitlement rather than the conditions during CEQAreview, was improper. In rejecting the opponent’s baseline argument, the Cherry Valley court cited Communitiesfor a Better Environment and Save Our Peninsula to once again reiterate that the determination of the baseline is an inherently factual determination, and therefore, the agency has discretion, subject to review underthe substantial evidence standard, to establish the baseline. In doing so, the court distinguished cases like Communitiesfor a Better Environment, Woodward Park Homeowners Assn. v. City ofFresno (2007) 150 Cal.App.4th 683, and Environmental Planning and Information Council v. County ofEl Dorado (1982) 131 Cal.App.3d 350 (EPIC) in whichthe courts had struck downthe use of “hypothetical allowable conditions”as the baseline. The problem in those cases wasthatthe use of such “hypothetical allowable conditions” was erroneousbecauseit “distorts a project’s true environmental impacts and mayalso lead to the failure to considerfeasible alternatives and mitigation measures.” (Cherry Valley, supra, 190 Cal.App.4th at pp. 339-340.) In each ofthe cases, there was no evidencethat the baseline used presenteda realistic scenario in which the 19 project’s impacts would occur, and the use of such a hypothetical baseline minimized the impacts of the project. Butthat rationale would not apply to a long-term transportation or transit project such as the Expo Line becausethe use of a projected future baseline, when supported by substantial evidence, does presenta realistic scenario in which the project will actually operate. Here it presents a more realistic scenario for assessing the significance of the Expo Line’s operational impacts on traffic and air quality than a comparison to conditions existing at the time of preparation of the EIR, or even commencement of the project, as lately argued by Petitioner, because despite its projected 2015 opening date, the Expo Line will take several years to develop its full ridership capacity and usage, and meanwhile, population andtraffic congestion are certain to grow, changing the conditions in which the project will operate for the worse. (AR 8:00218-34; AR 34:01063; see also AR 72:10738-39.) This is not a situation where the use of a projected future baseline is merely hypotheticalorillusory; nor would it serve to minimize impacts. 2. Communitiesfor a Better Environment did not reject the use of a future baseline; the Court should reject the rigid rule propounded in Sunnyvale West and Madera Oversight as it conflicts with the Court’s guidance in Communities for a Better Environment. The Court’s opinion in Communitiesfor a Better Environment did not directly address the question of whetherit is ever appropriate to use a 20 projected future baseline. At issue in Communitiesfor a Better Environmentwas a permit approved by the South Coast Air Quality ManagementDistrict (District) for a ConocoPhillips refinery project. The project involved replacing or modifying components of an existing refinery, installing new components, and substantially increasing operations of an existing cogeneration plan and fourboilers. In approving a negative declaration for the project, the District had used the maximum permitted operations at the existing refinery as the baseline, despite evidence that the refinery never operated at such levels. Thus, the District determined that even undera “worst-case” scenario, the emissions from the project would not create a significant impact because those emissions would be within levels previously permitted. (Communitiesfor a Better Environment, supra, 48 Cal.4th at pp. 317-318.) The Court held: We conclude neither the statute of limitations, nor principles of vested rights, nor the CEQA case law ‘on which ConocoPhillips and the District rely justifies employing as an analytical baseline for a new project the maximum capacity allowed under prior equipment permits, rather than the physical conditions actually existing at the time of analysis. (Communitiesfor a Better Environment, supra, 48 Cal.4th at p. 316.) The Court wasnot addressing a situation where the lead agency had used a projected future baseline that was based on projected changesin the environmentthat are well-supported by substantial evidence, and therefore did not reject such an approach. Rather, the Court rejected the use of 21 maximum permitted (but never achieved) operations of the existing plant as the baseline: [W]e conclude the District’s choice of a baseline for NOx emissions was inconsistent with CEQA and the CEQA Guidelines; the District should have looked to the existing physical conditions, rather than to the maximum permitted operation ofthe boilers. (Communitiesfor a Better Environment, supra, 48 Cal.4th at p. 319.) In reaching its determination, the Court, after citing CEQA Guidelines, § 15125, subdivision (a), explained that a “long line of Court of Appeal decisions holds, in similar terms, that the impacts of a proposed project are ordinarily compared to the actual environmental conditions existing at the time of CEQA analysis, rather than to allowable conditions defined by a plan or regulatory framework.” (Communitiesfor a Better Environment, supra, 48 Cal.4th at p. 321.) The Court went on to discuss cases in which an agency had used the hypothetical build-out of an existing plan as the baseline to compare the impacts of a new plan.(/d.at p. 321, fn. 6.) Doing so minimized the impacts of the new plan. The Court also cited cases in whichpetitioners had argued that the agency shoulduse a baseline prior to existing conditions to accountfor existing, but potentially illegal or unpermitted, development. (/d.at p. 321, fn. 7.) | In the cases cited by the Court (and relied upon by Petitioner here), the lead agency was either using a hypothetical baseline to minimize the impacts of the project, or project opponents were advocating for use of a 22 prior baseline to maximize the impact. In each of those cases, the courts rejected the manipulation ofthe baseline to achieve a purpose inconsistent with CEQA. The Communitiesfor a Better Environmentdecisionis not fairly read as rejecting, underall circumstances, the use of a projected future baseline, particularly when the use of such a baseline yields the most accurate assessment of impacts and best fulfills the informational purposes of CEQA. The Court explained, “[s]imultaneous maximum operation, then,is not a realistic description of the existing conditions without the [project].” (Communitiesfor a Better Environment, supra, 48 Cal.4th at p. 322.) This is the basis for the Court’s statementthat: An approach using hypothetical allowable conditions as the baseline results in “illusory” comparisons that “can only mislead the public as to the reality of the impacts and subvert full consideration of the actual environmental impacts,” a result at direct odds with CEQA’s intent. (Communitiesfor a Better Environment, supra, 48 Cal.4th at p. 322.) In other words, the problem wasthat the maximum permitted operations were not a realistic scenario for comparison of environmental impacts, and the useofthat illusory scenario resulted in the minimization of impacts.’ The Court further explained: >/ In contrast to the circumstances in Communitiesfor a Better’ Environment, there is nothing illusory about increases in population and employment growth that transportation and transit agencies are required to 23 Neither CEQA nor the CEQA Guidelines mandates a uniform, inflexible rule for determination of the existing conditions baseline. Rather, an agency enjoys the discretion to decide, in the first instance, exactly how the existing physical conditions without the project can morerealistically be measured, subject to review, as with all CEQA factual determinations, for support by substantial evidence. (See Vineyard Area Citizens for Responsible Growth, Inc. v. City ofRancho Cordova, supra, 40 Cal.4th at p. 435.) (Communitiesfor a Better Environment, supra, 48 Cal.App.4th at p. 328.) Petitioner repeatedly cites this passage of Communitiesfor a Better Environmentto highlight the language regarding “existing physical conditions,” arguing that the Court therein expressly limited agency discretion to use a projected future baseline. (OB,at pp. 12, 18.) But as shownabove,this is simply incorrect. The Court was not deciding whether it is ever appropriate to use a projected future baseline. The highlighted language does, however, clearly establish that determination of the proper baseline is a factual determination, which the agency hasthe discretion to decide, and is therefore reviewable under the substantial evidence standard. a. The use of a 2030 baselineis not the sort of “illusory” or “hypothetical” baseline this Court rejected in Communitiesfor a Better Environment. The circumstanceshere are entirely distinguishable from those in this Court’s decision in Communitiesfor a Better Environment, supra, 48 Cal.4th 310, where this Court recognized the obviousrisk of downplaying use in their evaluation of transit improvements, and that form the basis for projections of future environmental conditions. 24 or hiding the proposedaction’s impacts through the use of the truly hypothetical permitted maximum pollutant emissionsas the analytical baseline. There is nothing hypothetical or illusory about Metro’s Travel Demand Model, which formed the bases for the EIR’s 2030 baseline condition and the analysis of the Expo Line’s impacts to those conditions. (11 AR 346.) The Metro Travel Demand Model was updated and refined specifically for use in the study of the Expo Line. (/bid.) As explained, in the EIR travel forecasting models, such as the ‘Metro Travel Demand Model, are mathematical models that “describe the relationships between land use and demographics, causes ofpersonaltravel, and the resultant amount andlocation ofthat travel.” (11 AR 347.) “These | models are statistically derived from observations of individual travel choices obtained through extensive surveys of a region’s trip-making characteristics of travelers and their households.” ([bid.) The Metro Travel Demand Modelreceives its demographic inputs from the Southern California Association of Government’s Regional Travel Demand Model." */ SCAGis the federally designated Metropolitan Transportation Planning Organization (“MPO”) for the six-county region that includes the counties of Imperial, Los Angeles, Orange, Riverside, San Bernardino, and Ventura. As an MPO, SCAGis required to adopt and periodically update a long- range transportation plan and a regional transportation plan. (329 AR 27402.) Thus, SCAGis an expert agency in developing population and transportation demographics. 25 The Metro Travel Demand Modelpredicts future travel demand based upon several input data items that include: SCAGforecasts of regional growth inpopulation and employmentin the region; SCAGforecast changesin the socio-demographic characteristics of travelers; and, Future characteristics of the roadwayandtransit systems including travel times, costs, and system capacity reflective of the planned system (2030 conditions). (/bid.) To estimate the more localized traffic impacts associated with the Expo Line, intersection travel volume projections were developedusing the following process: Development of future base traffic volumes reflecting 2005-2030 backgroundtraffic growth, and changes due to auto trip reduction and othershifts in traffic as a direct result of the Expo Line; Development of additional peak hour auto accesstrips to stations related to station parking trips and drop-off trips; and, Estimation oftrip diversions due to cross-street and/or left-turn closures and their potential impact on the study area intersection turning movement volumes. (/bid.) _ There is nothing “hypothetical” or “illusory” about the projected 2030. baseline. It was developed based on thetravel demand model of an expert agency (Metro), which included demographic inputs from another expert agency (SCAG), and that wasspecifically tailored to address the impacts of this project. Thus, unlike the “hypothetical” maximum permit levels used as the baseline in the Communitiesfor a Better Environment case, the baseline for the Expo Line EIR is based on substantial evidence. 26 3. CEQAdoesnot prohibit the use of a projected future baseline, nor does the previous case law interpreting CEQA. The bright-line rule regarding the use of a projected future baseline for CEQAreview used by the court in Sunnyvale West prohibits the most practical method ofidentifying and isolating the significant environmental effects of complex, long-term planning projects. The CEQA Guidelines acknowledgethat there is flexibility in determining the baseline condition. Section 15125, subdivision (a), explains that the baseline will “normally” consist of conditions existing as of the time of the NOP for an EIR: An EIR must include a description of the physical environmental conditionsin the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which the lead agency determines whether an impact is significant. (Emphasis added.) Similarly, CEQA Guidelines section 15126.2, subdivision (a) providesthat: In assessing the impact of a proposed project on the environment, the lead agency should normally limit its _ examination to changes in the existing physical condition in the affected area as they exist at the time the notice of preparation is published, or where no notice of preparation is published, at the time the environmental analysis is commenced. (Emphasis added.) This Court also recognized, in Communitiesfor a Better Environment, supra, 48 Cal.4th 310,that use of the word “normally” establishes that agencies haveflexibility in setting the baseline, explaining: 27 Where environmental conditions are expected to change quickly during the period of environmental review for reasons other than the proposed project, project effects might reasonably be compared to predicted conditions at the expected date of approval, rather than to conditions at the time analysis is begun. (48 Cal.4th at p. 328.) Sunnyvale West interprets this language from Communitiesfor a Better Environmentas setting an absolute limit on how farin the future the baseline can be set. The Sixth District Court of Appeal held that, as a matter of law, a lead agency does not have “carte blancheto select the condition on some future, post-approval date as the ‘baseline’ so longas it acts reasonably as shownby substantial evidence.” (Sunnyvale West, supra, 190 Cal.App.4th at p. 1379.) This was so even for a project that wasn’t expected to be completed for several years, and, therefore, the operational impacts would not occur until several years later. The Sunnyvale West court explained “nothing in the law authorizes environmental impacts to be evaluated only against predicted conditions more than a decade after EIR certification and project approval.” (Sunnyvale West, supra, 190 Cal.App4th at p. 1380.) Without adding any further analysis, the court in Madera Oversight supra, 199 Cal.App.4th 98, applied the holdingin Sunnyvale West to a residential project. But nothing in Communitiesfor a Better Environmentsuggests this Court established such a limit. Rather, the Court emphasizedflexibility, supported by substantial evidence.- 28 Petitioner urges the Court to adopt Sunnyvale West’s rigid view of CEQA Guidelines section 15125 and the term “normally” in a way that would, under circumstanceslike those for the Expo Line, potentially result in either meaningless analysis or mask the disclosure of reasonably foreseeable impacts. Petitioner’s insistence on the use of a baseline set well prior to the operation ofthe first train carrying people on the Expo Line would not provide the kind of useful information to the public and agency decisionmakers that CEQAintends. As the Court of Appeal reasonably noted, “[a]n analysis of the project’s impacts on anachronistic 2009 traffic and air quality conditions would rest on the false hypothesis that everything will be the same 20 yearslater.” (Neighborsfor Smart Rail v. Exposition Metro Line Constr. Auth. (2012) 205 Cal.App.4th 552; Opinion, p. 15.) _ Petitioner fails to ever explain what, if anything, the agency’s decisionmakers would be expected to do with such informationif it were provided. Certainly it would be wasteful or even impact-causing in and of itself to require mitigation for theseanachronistic and truly “hypothetical” impacts disclosed in such a fashion. The fundamental purpose of CEQAis that agencies disclose the significant impacts of the project under review andfeasible measures to mitigate the significantimpacts ofthe project. These fundamental purposesare not advancedby the hollow,paper- shuffling exercise that Petitioner’s view, if adopted, would require. 29 This result cannot be the one that CEQA’s informational purposeis intended to create. Rather, the Court should uphold the well-established interpretation that reserves to agencies their discretion, informed by the facts, circumstances, and substantial evidence surrounding each individual project, to select the baseline that best serves CEQA’s purpose. a. The same courtthat decided Sunnyvale West has expressly held that agencies have discretion to establish a future baseline where that choiceis supported by substantial evidence. The same court that decided Sunnyvale West quickly clarified that the determination of the baseline is an inherently factual determination that the lead agency hasdiscretion to decide, and therefore, the appropriate standard ofreview is the substantial evidence standard. (Pfeiffer, supra, 200 Cal.App.4th 1552.) In Pfeiffer, the court also upheld the use of a projected future baseline. The project at issue in Pfeiffer was a hospital expansion. Thetraffic analysis in the EIR useda traffic analysis methodology indistinguishable to any material extent from the methodology used for the Expo Line. The Pfeiffer traffic study used a traffic demand model similar to the Metro Travel Demand Model used by the Expo Authority. Thetraffic study used the following traffic data and growth projections: existing conditions, “background”conditions, project conditions, and cumulative conditions (year 2020). (Ud. at p. 1571.) The City’s significance determinations were based on a comparison ofthe project scenario to the 30 “background” conditions. The “background” conditions included “[e]xisting peak-hour volumes multiplied by a growth factor plustraffic from approved but not yet constructed developments in the area. Thetraffic growth factor was developed based on the City of Sunnyvale’s travel demandforecasting model.” (/bid.) In other words, the EIR’s traffic baseline was a future condition that included existing traffic and traffic expected due to projected growth and future development. This is precisely the methodology reflected in Metro’s Travel Demand Model and applied by the Expo Authority here. Like the methodology approved in Pfeiffer, the Expo Line traffic study here started with existing traffic levels in the Expo Line area, calculated a growth intraffic based on the official population and employment projections, and then calculated future traffic conditions in 2030 if the Expo Line is notbuilt and if the Expo Lineis built. In this fashion, the Expo Linetraffic study identified the impacts ofthe project so that the Expo Authority could then identify and adopt feasible measures to mitigate the significant traffic impacts ofthe project. ~ In reaching the determination that it was properto use a projected future baseline, the Pfeiffer court turned to Communitiesfor a Better Environment and Save Our Peninsula, supra, 87 Cal.App.4th 99, discussed above, that holds that selecting an appropriate baseline is inherently a factual determination that agencies have the discretion to make.In rejecting 31 the petitioner’s challenge to thetraffic baseline, the Pfeiffer court explained: [A]ppellant’s contention that a traffic baseline is limited to existing conditions lacks merit because, as we have discussed, the California Supreme Court has instructed that predicted conditions may serve as an adequate baseline where environmental conditions vary. “‘[T]he date for establishing baseline cannot be a rigid one. Environmental conditions may vary from year to year and in somecases it is necessary to consider conditions over a range of timeperiods.’ [Citation].” (Communities for a Better Environment, supra, 48 Cal.4th at pp. 327-328.) Here, there was substantial evidence undisputed by appellants, that traffic conditions in the vicinity of the [project] could vary from existing conditions due to a forecast for traffic growth and the construction of already- approved developments. Moreover, appellants overlook the fact that the EIR included existing conditions, based on actual traffic counts, in its analysis oftraffic impacts. (Pfeiffer, supra, 200 Cal.App.4th at p.1572 [emphasis added].) The Pfeiffer court went on to explain that “this court acknowledged in Sunnyvale West that future conditions may beconsidered in determining a proposed project’s impacts on the environment.” (Pfeiffer, supra, 200 Cal.App.4th at p. 1573.) Because Pfeiffer was issued after Sunnyvale West, Pfeiffer should be persuasive, rather than Sunnyvale West. “As a general rule, where there are two or moreconflicting decisions rendered by a court or by courts of equal dignity the decision last rendered should prevail.” (16 Cal.Jur.3d (2002) Courts, § 297; Kenney v. Antioch Live Oak SchoolDist. (1936) 18 Cal.App.2d 226, 231; In re Lane (1962) 58 Cal.2d 99, 105 [“It is an established rule of law that a later decision overrules prior decisions 32 which conflict with it whether such prior decisions are mentioned and commented uponor not.”].) The Pfeiffer court distinguished Sunnyvale West on the basis that in Pfeiffer, “the traffic baselines included in the BIR were notlimited to project traffic conditions in the year 2020, but also included existing conditions and thetraffic growth anticipated from approved but notyet constructed developments.” (Pfeiffer, supra, 200 Cal.App.4th at p. 1573.) That rationale would support the EIR in this case, where the EIR set forth the existing traffic conditions and then used modeling of expected growth in traffic from population and employmentprojections to establish the 2030 baseline for the analysis of the project’s operational impacts related to traffic and air quality. (See AR 3:00017; AR 11:00336-45, 00353-54; AR 72:10737-40 [Performance Measures for Current Year and Project Alternatives for Year 2030], 10748-49 [LOS E/F Intersections for Current | and Year 2030 No-Build Alternative]; AR 13:00495-510, 00515-18 [air quality analysis]; AR 59:08294-95, 08310, 08391, 08406-09 [Existing Conditions], 08410-13 [No Build Conditions 2030], 08422-25 [Project 2030 Conditions], 08439-58 [Expo Construction 201 1-2013].) 4, Petitioner fails to cite any substantial evidence to support its claims that the project may have near-term significant impacts. Petitioner previously argued, based on the Sunnyvale West and Madera Oversightcases, that “an agency has nodiscretionto select a 33 future, post-approval environmental baseline.” (Appellate Reply Brief of Neighbors for Smart Rail, p. 11.) After that contention was soundly rejected by the appellate court below, Petitioner now changescourse and argues,” that the proper baseline can beset no later than the near-future — 2015. (e.g., OB, p. 29.) In light of Petitioner’s refusal to adopt a consistent view ofthe proper baseline the Expo Authority should have used, as well as Petitioner’s failure to exhaust administrative remedies and provide evidence to the agency during its review process,it is not surprising that Petitioner can cite no substantial evidence supporting its theory that the agency’s choice of a 2030 baseline somehowobscured a slew ofinterim significant impacts. Petitioner’s assertions in this regard rely on nothing morethanits own speculation and cynical assumptions, none ofwhich are supported by the actual evidence in the record. For example, Petitioner spins a theory unsupported by any citations to the record opining (and impliedly imputing the EIRat hand) that “long range forecasts,” prepared using “opaque > / As noted by the Court of Appealin its opinion below (fn. 7) and as further briefed in detail in Respondents Exposition Metro Line Construction Authority et al.’s Answer Brief on the Merits, Petitioner failed to exhaust administrative remedies regarding this specific baseline argument. In fact, during the administrative process, Petitioner urged the Expo Authority to use a 2035 baseline, instead of 2030. (AR 727:46961- 62.) Petitioner’s position has therefore evolved from urging the Expo Authority to base its impacts assessment on conditions even farther into the future, to insisting on an existing conditions baseline, to its apparent current position that a near-term operations baseline is the proper choice. 34 mathematical models that are subject to potential manipulation by ‘experts’ to support a pre-determined conclusion,” are “inherently less reliable.” (OB,pp. 18-19.) Petitioner further alleges that allowing the use of future baselines would encourage “gamesmanship” by unscrupulous. project proponents. (OB,p. 18, fn. 3.) Tellingly, however, Petitioner cites to no evidencein this record challenging the long-range forecasts developed bythelocal, regional and state transportation andair quality management agencies indicating that, due to increases in population and employment,traffic congestion and resulting air emissions will increase in the project area. (See, e.g., AR 8:00218-234.) The EIR disclosed, for example, that the numberofstudy area intersections operating at undesirable levels of congestion (with or without the project) would increase over the 20-year timeframe between the time of review to 2030. (AR 8:00233; see also AR 72: 10738-10739.) Petitioner certainly cites to no evidence suggesting that, by basing assessment ofthe project’s traffic and air quality impacts on the conditions in the agencies’ accepted planning horizon, the EIR somehow minimized or disguised the magnitude of the Expo Line’s impacts in the interim. Indeed, Petitioner cannot cite or impute such conclusions, because as the Expo Line is aregional transit system designed to gradually reduce people’s reliance on cars and buses,it will reduce vehicle miles traveled and resulting air emissions, however incrementally. (AR 11:00353; AR 59:8303.) Thereis 35 no evidence in the record indicating or supporting an inference that the project’s operation would cause any ofthe study intersections or regional air quality to get worse, either in the near or long term.° In summary, CEQA allows an agencyto establish a future baseline if that determinationis supported by substantial evidence. Here, the Expo Authority’s use of a 2030 baseline was well reasoned and supported by substantial evidence. While there are two outlier cases (Sunnyvale West and Madera Oversight) that purport to prohibit the use of a future baseline, the case law hassince evolved, and the courts appear to be moving towards an agreement that future conditions can serve as a baseline for analysis of impacts if supported by substantial evidence. Nothing in this Court’s case law is to the contrary. For these reasons, the Court should confirm that the Expo Authority’s use of a 2030 baseline for the analysis oftraffic and air quality impacts was appropriate under CEQA. B. Mitigation Measure TR-4 adequately mitigates the potential for parkingspillover impacts. The Expo Line EIR took a very conservative approach to analyzing parking impacts. Even though parking impacts need not be considered ° / Furthermore, Petitioner’s complaint that the models projecting future conditions are nothing but “opaque mathematical models” subject to “manipulation” is a non-sequitur because those very same models are used to predict the impacts of the project. This is true for probably every moderate- to large-scale project analyzed under CEQA,wheretraffic and air quality impacts are determined by complex computer modeling performed by experts. 36 significant environmental impacts under CEQA,the EIR analyzed whether the project would “cause parking intrusion into adjacent neighborhoodsor _ commercial areas where the demandfor parking at a station exceeds the proposed parking lot capacity.” (11 AR 00411.) Because there is a potential for station parking to spillover into adjacent neighborhoods, the Expo Authority — in consultation with Metro and the local agencies — adopted Mitigation Measure (“MM”) TR-4. That measure requires: In the quarter mile area surrounding each station where spillover parking is anticipated, a program shall be established to monitor the on-street parking activity in the area prior to the opening of service and shall monitor the availability of parking monthly for six months following the opening of service. If a parking shortage is determined to have occurred (i.e, existing parking space utilization increases to 100 percent) due to the parting activity of the LRT patrons, Metro shall work with the appropriate local jurisdiction and affected communities to assess the need for and specific elements of a permit parking program for the impacted neighborhoods. The guidelines established by each local jurisdiction for the assessment of permit parking programs and the development of community consensus on the details of the permit program shall be followed. Metro shall reimburse the local jurisdictions for the costs associated with developing the local permit parking programs within one-quarter mile of the stations and for the costs ofthe signs. posted in the neighborhoods. Metro will not be responsible for the costs of permits for residents desiring to park on the streets in the permit districts. For those locations where station spillover parking cannot be addressed through implementation of a permit program, alternative mitigation options include time-restricted, metered, or shared parking arrangements. Metro will work with the local jurisdictions to determine which option(s) to implement. (11 AR 00413-414.) 37 Asan initial matter, there is no statutory or case authority requiring an EIR to identify specific measures to mitigate an anticipated shortfall in parking availability because the social inconvenience of having to search for scarce parking spaces is not an environmental impact. (San Franciscans, supra, 102 Cal. App. 4th at p. 697.) Nevertheless, the Authority endeavored to mitigate this potential social impact. Adding more parking has environmental impacts: the Authority would either have to purchase moreproperty for surface parking, which could have land use impacts, or provide structured parking. (34 AR 01186.) Therefore, to minimize the potentially significant adverse impacts resulting from a shortage of parking, the Authority adopted MM TR-4. (3 AR 00054-55; 11 AR 00413-14.) Petitioner claims that MM TR-4 is inadequate as a matter of law and constitutes impermissible deferral of the formulation of mitigation. The Court ofAppeal correctly held that MM TR-4 is adequate and appropriate because it commits Metro to mitigating the impact andsets a specific performancestandard. (Opinion, pp. 33-34.) The Court of Appeal also correctly determined there is substantial evidence the measure will be effective at mitigating the impact becauseit addresses the impactat issue (intrusion into neighborhoods) and because neighboring “residents will havestreet parking.” (/bid.) /// 38 1. Mitigation Measure TR-4 is enforceable and has been incorporated into the project. Prior to approving a project that has the potential to result in one or more significant effects, CEQA requires the agency to find that the mitigation measures proposed to mitigate such impacts are required in, or incorporatedinto, the project; or that the measures are the responsibility of another agency and have been,or can and should be, adopted by the other agency; or that mitigation is infeasible and overriding considerations outweigh the significant environmental effects. (Pub. Resources Code,§ | 21081; Guidelines, § 15091, subd. (b).) CEQAalso requires that a public agency shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures. (Pub. Resources Code, § 21081.6, subd. (b); see also CEQA Guidelines, § 15126.4, subd. (a)(2).) In this case, the record contains substantial evidence that the Authority’s findings made with respect to MM TR-4 were appropriate and that MM TR-4 is enforceable. (Bakersfield Citizensfor Local Controlv. City ofBakersfield (2004) 124 Cal.App.4th 1184, 1198 {substantial evidence standardis applied to conclusions, findings, and determinations].) MM TR-4 wasexpressly incorporated into the Project through the Resolution of Approval, the adopted CEQA Findings of Fact, and the adopted Mitigation Monitoring and Reporting Program (MMRP). (3 AR 39 00009, 00054-55, 00113.) As MM TR-4obligates the Expo Authority and Metro to monitor the parking and, if parking exceeds 100-percent utilization of available parking spaces, obligates Metro to fund and implement a parking managementprogram, the Expo Authority adopted the finding consistent with Public Resources Code Section 21081, subdivision (a)(1), and CEQA Guidelines Section 15091, subdivision (a)(1) (allowing a finding that “changesor alterations have been required in, or incorporated into, the project, which avoid or substantially lessen the significant environmental effect as identified in the final EIR”). (3 AR 00015, 00054.) But because Metro must work with affected jurisdictions to implementthe parking management program under MM TR-4, the Expo Authority also made a finding that, consistent with Public Resources Code Section 21081, subdivision (a)(2) and CEQA Guidelines Section 15091, subdivision (a)(2), “such changesor alterations are within the responsibility of another public agency” and “can and should be adopted by such other agency.” (Ibid.)' MM TR-4is also fully enforceable because it was adoptedas part of the MMRP for the Expo Line. (3 AR 00009, 00113.) The intent of an MMRP isto prescribe and enforce a meansfor properly and successfully implementing the mitigation measures identified within the EIR for the ’/ Petitioner incorrectly claims that the Authority did not make such a finding consistent with Public Resources Code Section 21081, subdivision (a)(2). (OB,p. 40, fn. 19.) 40 project. (Pub. Resources Code, § 21081.6; CEQA Guidelines, § 15097, subd.(c).) As such, this adopted MMRP prescribes the monitoring, implementing, and enforcementresponsibility and the schedule for ensuring implementation and compliance with the mitigation measures. (Ibid.) As MM TR-4 is drafted in mandatory language and included in the adopted MMRP,the Expo Authority and Metro are /egally required to monitor the parking and, if parking exceeds 100-percent utilization of available parking spaces, Metro is legally required to fund and implementa parking management program in cooperation with the agencies having jurisdiction over parking management. (See Lincoln Place Tenants Assn. v. City ofLos Angeles (2007) 155 Cal.App.4th 45, 452-454 [mitigation, upon adoption, becomes binding obligation of agency].) Petitioner initially argues that this Court’s review ofMM TR-4 “presents a question of law subject to independentreview.” (OB,p. 36, citing Madera Oversight, supra, 199 Cal.App.4th 48.) In Madera Oversight, however, the issue raised was a question of law becauseit required the court to interpret CEQA Guidelines section 15126.4, subdivision (b)(3) to determine whether the methods for accomplishing “preservation in place” were factors that must be included in an EIR’s discussion of mitigation measures for impacts to historical resources of an archaeological nature. (Madera Oversight, supra, 199 Cal.App.4th at p. 85.) In other words,the court resorted to reviewing andinterpreting the 4] language ofCEQA Guidelines section 15126.4, subdivision (b)(3) to determine whether the agency had failed to undertake an obligation required by CEQA. Here, in contrast, as discussed above,the Authority has complied with its CEQAobligations with respect to MM TR-4. The Authority adopted the mitigation measure, adopted an MMRP,and adopted CEQA Findings of Fact. (3 AR 00009, 00054-55, 00113.) As such, the only question before this Court is whether the Authority’s finding that MM TR-4 would reduce spillover parking impacts to a less-than-significant levelis supported by substantial evidence. (See Laurel Heights IL, supra, 47 Cal.3d at p. 407 [courts will uphold mitigation measures against attacks based on their alleged inadequacy where substantial evidence supports the agency’s conclusion that the measures will be effective]; Vineyard, supra, 40 Cal.4th at p. 435 [substantial evidence standard applies to factual disputes over “whether adverse effects have been mitigated or could be better mitigated”].) "After first asserting that the Court’s review ofMM TR-4 presents a question of law, subject to independentreview, Petitioner implicitly concedesthat the substantial evidence standard applies when discussing the Federation case (supra, 83 Cal.App.4th 1252). (OB,p. 37.) Furthermore, | the Federation case does not support Petitioner’s argument that MM TR-4 is not enforceable. 42 The court in Federation explained that CEQArequires the agency to find, based on substantial evidence, that mitigation measures are “required in, or incorporated into, the project.” Ud. at p. 1261.) Petitioner here argues that because MM TR-4 requires Metro to work with local jurisdictions to implement the second prong of the mitigation measure (implementation of parking management programs), there is no evidencein the record that MM TR-4 was “required or incorporated into the Project in a mannerthat ensures[its] implementation, or that such mitigation is fully enforceable.” (OB,p. 37, citing Federation, supra, 83 Cal.App.4th 1252.) Federation is inapposite. There, the court held that certain transportation mitigation measures were inadequate because the City relied on a documentthat mentioned the possibility of such measures but did not requiretheir implementation. (/d. at pp. 1255-1256, 1261.) In fact, the City had acknowledged “great uncertainty” as to whether the mitigation measures would be funded or implemented. (/d. at p. 1261.) As such, “[a]lthough the city adopted the mitigation measures,it did not require that they be implemented as a condition of the development allowed underthe [project] and made noprovision to ensure that they will actually be implementedor ‘fully enforceable’.” (/bid., citing Pub. Resources Code, § 21081.6, subd. (b).) Here, as discussed above, substantial evidence in the record supports a conclusion that mitigation measure MM TR-4 wasincorporated into the Project andis fully enforceable. 43 2. The Expo Authority did not improperly defer the formulation of mitigation. The CEQA Guidelines explain that formulation of mitigation measures should not be deferred until some future time, after project approval. (CEQA Guidelines, § 15126.4, subd. (a)(1)(B).) At the same time, the Guidelines recognize that mitigation measures may specify performance standards which would mitigate the significant effect of the project and which may be accomplished in more than one specified way. (Ibid.) Thus, if the agency has identified one or more mitigation measures and has committed to mitigating the impact those measures address, then the principles forbidding improper deferral of mitigation are not implicated. (CNPS v. Rancho Cordova, supra, 172 Cal.App.4th at p. 623.) Here, the formulation of the measures to mitigate the Project’s potential spillover parking impacts has not been improperly deferred until somefuture time after proj ect approval. Rather, MM TR-4sets forth the specific parking management measures that could be implemented to mitigate thespillover parking impact: parking permit programs, time- restricted parking, metered parking, or shared parking. (11 AR 00413-414.) But because the parking analysis determined that there would not be a spillover parking impact on opening day, and because some station areas that do not have residential permit parking districts or time-restricted on- 44 street parking ® could eventually be impacted by spillover parking, MM TR-4 requires Metro to “monitor the on-street parking activity in the area prior to the opening of service and...monitor the availability of parking monthly for six months following the opening of service.” (11 AR 00413; 72 AR 10793-95.) If, during the six months following the opening of service, Metro determinesthat the existing parking spaceutilization has increased to 100 percent, and, therefore, a parking shortage has occurred, Metro is required to fund and implement one or moreofthe parking management measures set forth in MM TR-4 in cooperation with the agencies having jurisdiction over parking management. (11 AR 00413- 414.) Substantial evidence in the record, moreover, showsthat such parking management programswill be effective at reducing the impact. (11 AR 00413 [noting residential permit parking district and metered on-street parking already exists in somestation areas which reduces the impact of spillover parking].) MM TR-4 commits the Expo Authority and Metro to a specific performancestandard. The use ofperformance standards allows an agency to commit to mitigating an impact, but defer formulation of precise mitigation measures to some future time. (See CEQA Guidelines, § 15126.4, subd. (a)(1)(B) [“measures may specify performance standards */ For example, south of the Expo/WestwoodStation, south of the Expo/Sepulveda Station, and south of the Expo/BundyStation. 45 which would mitigate the significant effect of the project and which may be accomplished in more than one specified way”’].) As explained in CNPS vy. Rancho Cordova,“when a public agency has evaluated the potentially significant impacts of a project and has identified measuresthat will mitigate those impacts, the agency does not have to commit to any particular mitigation measure in the EIR, as long as it commits to mitigating the significant impacts of the project.” (CNPS v. Rancho Cordova supra, 172 Cal.App.4th at p. 621, citing Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011 (SOCA).) In SOCA, supra, the court upheld as adequate a mitigation measure to meet a performance standard of ninety percent parking usage based onthecity’s commitment to employ one or more mitigation measures it found to be effective at reducing parking impacts. (229 Cal.App.3d at pp. 1021, 1035.) ° ” / Petitioner claimsthat the present case is distinguishable from SOCA becausein that case the lead agency had committed itse/fto mitigating the impacts ofparking andtraffic, had already approved funds for a major study of downtowntransportation and each of the measures identified in the EIR were within the lead agency’s authority to implement. (OB,pp. 43-44 citing SOCA, supra, 229 Cal.App.3d 1029-1030.) But nearly the same circumstancesexist in this case. As discussed above, the Authority and Metro have committed themselves to monitoring parking utilization to determine if an impact will result, have devised measures that can be implemented to mitigate an impact resulting from 100-percentutilization of existing parking and have committed to fund such measures. Moreover, evidence in the record supports a finding that the measuresare effective and will be implemented by the jurisdictions affected by the spillover parking impact. (See Section B.3,infra.) 46 Consistent with the requirements set forth above, MM TR-4 commits to a specific performance standard: reducing existing parking space utilization to less than 100 percent. Moreover, MM TR-4setsforth the specific measures that can be implementedto satisfy thiscriterion. Underthis standard, if Metro’s monitoring reveals that existing parking space utilization has reached 100 percent, Metro is required to fund and implement a parking management program in cooperation with the agencies having jurisdiction over parking managementin order to reduce parking space utilization to below 100 percent. (11 AR 00413-414.) The parking management program could include a parking permit program or other mitigation options such as time-restricted, metered, or shared parking arrangements in the event a parking permit program is not possible. (11 AR _ 00413-414.) The EIR considers the permanentloss of existing on-street parking spacesthat had been consistently utilized to meet the parking demandsofnearby land uses to be an impactifthere is no nearby alternate off-street or on-street parking. (11 AR 00351.) In other words, no significant impactresults unless the Expo Line causes 100-percent utilization of existing parking. Therefore, reducing parking spaceutilization below 100 percent with the identified parking measures would reducethis impactto a less-than-significant level, as noted in the EIR. (11 AR 00414.) As discussed below,substantial evidence supports this conclusion. 47 Contrary to Petitioner’s assertion, MM TR-4 does not “merely state[] a ‘generalized goal’ of mitigating a significant environmental effect.” As such, San Joaquin Raptor, supra, 149 Cal.App.4th at >. 670, Communitiesfor a Better Environmentv. | City ofRichmond (2010) 184 Cal.App.4th 70, 93 (City ofRichmond), and Gray v. County ofMadera (2008) 167 Cal.App.4th 1099, 1119 (Gray), are inapposite and Petitioner’s reliance on them is misplaced. Furthermore,in those cases, though the courts took issue with the “generalized goals” set forth as the performance standards, the larger issue indicating impermissible deferral was that the agency failed to either (1) identify any potential mitigation measures that might be incorporated in the future (e.g., San Joaquin Raptor) or (2) if such measures were identified, show how such measures could feasibly be implemented to meetthe goal(e.g., City ofRichmond and Gray). Here, MM TR-4doesnot suffer from the same defects. The performance standard set forth in MM TR-4is, therefore, akin to the performancestandard for the noise mitigation upheld by this Court in Laurel Heights ImprovementAssn. v. Regents of University ofCalifornia (1988) 47 Cal.3d 376, 418. In that case, the EIR set forth daytime noise mitigation which utilized the city’s noise ordinance as a performance standard for design of mechanical equipment. The mitigation required that equipment design would be reviewedby a qualified acoustical engineer for compliance with the noise standards. If the calculated noise from the fan 48 exceeded the standards, specific noise control treatments including fan silencers, barrier walls, or baffled enclosures will then be evaluated for the design ofthe fan to reducethe noise below the city noise standards. This Court held this mitigation was sufficient. Similarly, MM TR-4 requires Metro to fund and implement parking management measuresin the event parking utilization reaches 100 percent in order to reduce parking utilization below the performance standard of 100 percent. '° In sum, the Expo Authority and Metro havesatisfied their duty to mitigate the potentially significant impact relating to spillover parking. MM TR-4 sets forth specific parking management measuresthat can be implementedin the future in the event parking utilization reaches 100 percent. (11 AR 00413-414.) Substantial evidence in the record supports a finding that such measures have been incorporated into the project, are ' 7 See also Endangered Habitats League, Inc. v. County ofOrange (2005) 131 Cal. App. 4th 777, 794 [mitigation measure for gnatcatcher habitat found not to constitute impermissible deferral where, though the impact would be addressed sometime in the future, the EIR set out several possibilities for mitigating the impact]; Rialto Citizensfor Responsible Growth y. City ofRialto (2012) 208 Cal. App. 4th 899, 945-947 [where no special status species had been identified on site during surveys, mitigation requiring preconstruction surveys for five species with potential to occur on site and consultation with state and federal wildlife agencies if species were identified constituted sufficient mitigation, though the lead agency had not mandated any particular mitigation ratio or performance standards].) So too here, the Authority has a plan to implement and fund parking management measures in the event parking utilization reaches 100-percentutilization within six months of opening day. 49 enforceable, and will be effective, as described below. (3 AR 00009, 00054-55, 00113; 11 AR 00413-414.) 3. There is substantial evidence that Mitigation Measure TR-4 will reduce the impacts of parking intrusion in surrounding neighborhoods. Substantial evidence supports a conclusion that mitigation measure MM TR-4 will, if needed, reduce the spillover impact to a less-than- significant level. The measure directs the Expo Authority and Metro to implement a program to monitor parking availability monthly for six months following the opening of services, and compliance with such an obligation is within their authority and control. (3 AR 00113.) In the event this monitoring indicates that parking utilization has reached 100 percent, Metro is required to work with the affected jurisdictions (of which there are potentially only three: Los Angeles, Culver City, and Santa Monica) to implementa parking permit program oralternative mitigation options (time-restricted, metered, or shared parking arrangements). (3 AR 00113.) Again, Metro has the authority and control to implement this requirement in coordination with affected jurisdictions. (3 AR 00113.) While Metro cannotultimately force these affected jurisdictions to implement the parking measures, it is clear fromthe administrative record that Metro and the Expo Authority already have a workingrelationship with those local agencies that would be affected by station spillover parking and that such agencies have reviewed and approvedofthe obligations 50 placed on them under MM TR-4.Indeed, membersofthe three cities’ city councils sit on Expo’s Board. (Pub. Utilities Code, § 132615, subds. (a)(1), (3)-(4).) And the FEIR expressly states that revisions to MM TR-4 for the Project in the FEIR which addedthe alternative mitigation options(time- restricted, metered, or shared parking arrangements) were devised in consultation with the potentially affected local agencies. (11 AR 00413, 00331.) Moreover, to ensure implementation, Metro has agreed to | reimburse local jurisdictions for the costs associated with implementing permit programs. (3 AR 00113.) The administrative record also demonstrates that the parking measures in MM TR-4 are the types of measuresthat these jurisdictions have implementedin the past. The City of Los Angeles has previously adopted neighborhood parking permit programs to minimize potential spillover impacts in several neighborhoods near the Project. (11 AR 00413 [noting existing permit parking district north of the Expo/WestwoodStation]; 72 AR 10795.) Metered on-street parking also already exists in some station areas which reduces the impact of spillover parking. (11 AR 00413 [noting metered on-street parking near Colorado/17th Street and Colorado/4th Street Stations].) A mitigation measure similar to MM TR-4 wasalso adopted for Phase 1 of the Expo Line. (739 AR 48431.) Underthe substantial evidence standard of review, Petitioner bears the burden to show thatthe three jurisdictions in the Expo Line area that 51 might potentially be affected by spillover parking impacts (Los Angeles, Culver City, Santa Monica) will fail to cooperate with the Authority in the implementation ofMM TR-4 if the required monitoring reveals a significant impact. (Evid. Code, § 664; State ofCal. v. Super. Ct. (1990) 222 Cal.App.3d 1416, 1419 [under CEQA,an EIR is presumed adequate (Pub. Resources Code, § 21167.3), and the plaintiff in a CEQAaction has the burden ofproving otherwise]; E/ Morro, supra, 122 Cal.App.4th at p. 1351 [the courts must presume that an agency will carry outits obligations in accordance with the law; sheer speculation cannot carry petitioner's burden of proving otherwise].) Given the evidenceofthe affected jurisdictions’ participation in composingthe final version ofMM TR-4 and the evidence of approved neighborhood parking permit programs on the Westside, the Second District correctly concluded that MM TR-4is supported by substantial evidence, and refused to assume “that simply because the Expo Authority cannot require a local jurisdiction to adopt a permit program, the mitigation measure is inadequate.” (Opinion,at p. 34, originalitalics; see Laurel Heights I, supra, 47 Cal.3d 376, 407 [courts will uphold mitigation measures against attacks based on their alleged inadequacy where substantial evidence supports the agency’s conclusion that the measureswill be effective.].) In summary, MM TR-4 wasadopted as part of the Expo Line approval, andit is an enforceable measurethat will reduce the intrusion of 52 spillover parking into adjacent neighborhoods. Thereis substantial evidence that the mitigation will be effective to reduce the impact to a less- than-significant level, and therefore, the Expo Authorty’s conclusions should be upheld. CONCLUSION Based on substantial evidence, the Expo Authority appropriately exercised its discretion to use a baseline set in the future, when the Expo Line will be fully operational. Furthermore, substantial evidence supports the Expo Authority’s conclusion that parking spillover impacts will be mitigated to a less-than-significant level. For these reasons, the Second District’s holdings should be affirmed. Respectfully, Dated: October 9, 2012 REMY MOOSE MANLEY,LLP By: Tiffany K. Wright Attorneys for Real Parties in Interest and Respondents LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY; LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY BOARD 53 CERTIFICATE OF WORD COUNT (Cal. Rules of Court, Rule 8.204(c)(1) I, Tiffany K. Wright, declare as follows: l. I am an attorney at law duly licensed to practice before the courts of. the State of California, and am the attorney ofrecord for the Real Parties in Interests and Respondents in this action. California Rules of Court, rule 8.204(c)(1), states that briefs produced on a computer must not exceed 14,000 words, including footnotes. This Answer Brief on the Merits was produced on a computer using a word processing program. This AnswerBrief on the Merits consists of 12,630 words, including footnotes but excluding the caption page, tables andthis certificate, as counted by the word processing program. Dated: October 9, 2012 REMY MOOSE MANLEY, LLP By: Tiffany K. Wright Attorneys for Real Parties in Interest and Respondents LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY; LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY BOARD 54 Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority, etal., California Supreme Court Case No. S202828 (Second District Court of Appeal, Division Eight, Case No. BS232655; Los Angeles County Superior Court Case No. BS 125233) PROOF OF SERVICE I am a citizen of the United States, employed in the City and County of Sacramento. My business address is 455 Capitol Mall, Suite 210, Sacramento, California 95814. I am over the age of 18 years and not a party to the above-entitled action. I am familiar with Remy, Thomas, Moose and Manley, LLP's practice whereby the mail is sealed, given the appropriate postage and placed in a designated mail collection area. Each day's mail is collected and deposited in a U.S. mailbox after the close of each day's business. On October 9, 2012, I served the following: ANSWERBRIEF ON THE MERITS ¥___ On the parties in this action by causing a true copy thereof to be placed in a sealed envelope with postage thereon fully prepaid in the designatedarea for outgoing mail addressed as follows;or Ix On the parties in this action by causing a true copy thereof to be delivered via Federal Express to the following person(s) or their representative at the address(es) listed below; or On the parties in this action by causing a true copy thereof to be electronically delivered via the internet to the following person(s) or representative at the address(es) listed below: SEE ATTACHED SERVICE LIST I declare under penalty of perjury that the foregoing is true and correct and that this Proof of Service was executed this 9th day of October, 2012, at Sacramento, California. Matthew C. Tabarangao Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority, etal., _ California Supreme Court Case No. 8202828 (Second District Court of Appeal, Division Eight, Case No. BS232655; Los Angeles County Superior Court Case No. BS125233) SERVICE LIST John M. Bowman Attorneys for Petitioner / Appellant C.J. Laffer NEIGHBORS FOR SMART RAIL Elkins Kalt Weintraubet al. 2049 Century Park East, Suite 2700 VIA U.S. Mail and Los Angeles, CA 90067-3202 Federal Express Robert D. Thornton Attorney for Respondent John J. Flynn IT oe EXPOSITION METRO LINE Robert C. Horton CONSTRUCTION AUTHORITYet Lauren C. Valk | al. Nossaman LLP 18101 Von Karman Ave., Suite VIA U.S. Mail 1800 Irvine, CA 92715-1007 Lloyd W. Pellman Attorney for Respondent Nossaman LLP EXPOSITION METRO LINE 777 South Figureroa Street, Floor 34 CONSTRUCTION AUTHORITYet Los Angeles, CA 90017 al. VIA U.S. Mail John F. Krattli Attorney for Respondent and Real County Counsel Parties in Interest Ronald W. Stamm LOS ANGELES COUNTY Principal Deputy County, Counsel METROPOLITAN Office of the Los Angeles County TRANSPORTATION Counsel — Transportation Division AUTHORITY,etal. One Gateway Plaza Los Angeles, CA 90012 VIA U.S. Mail Bradley R. Hogin | Amici Curiae Woodruff Spradlin and Smart 555 Anton Blivd., Suite 1200 VIA U.S. Mail Costa Mesa, CA 92626 Neighborsfor Smart Rail vy. Exposition Metro Line Construction Authority,et al., California Supreme Court Case No. 8202828 (Second District Court of Appeal, Division Eight, Case No. BS232655; Los Angeles County Superior Court Case No. BS125233) SERVICE LIST (Continued) Andrew B. Sabey Cox Castle & Nicholson, LLP 555 California Street, 10" Floor San Francisco, CA 94104-1513 Rod Attebery General Counsel Neumiller & Beardslee Waterfront Office Towers 509 W. Weber Avenue, 5th Floor Stockton, CA 95203 Robert D. Thornton Attorney at Law NOSSAMAN LLP 18101 Von Karman Avenue, Suite 1800 Irvine, CA 92612 Adam Kear Senior Deputy General Counsel Metropolitan Water District of Southern California Office of the General Counsel 700 N. AlamedaStreet Los Angeles, CA 90012 Amici Curiae VIA U.S. Mail Amicus Curiae SAN JOAQUIN COUNCIL OF GOVERNMENTS VIA U.S. Mail Amici Curiae FOOTHILL / EASTERN TRANSPORTATION CORRIDOR AGENCY, THE SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCYand SAN FRANCISCO COUNTY TRANSPORTATION AGENCY VIA U.S. Mail Amicus Curiae METROPOLITAN WATER DISTRICT OF SOURTHERN CALIFORNIA VIA U.S. Mail Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority, et al., California Supreme Court Case No. 8202828 (Second District Court of Appeal, Division Eight, Case No. BS232655; Los Angeles County Superior Court Case No. BS125233) SERVICE LIST (Continued) Joann Africa Amicus Curiae Chief Legal Counsel - SOUTHERN CALIFORNIA Sharon Neely ASSOCIATION OF Deputy Executive Director GOVERNMENTS Southern California Association of Governments VIA U.S. Mail 818 W. Seventh Street, 12th Floor Los Angeles, CA 90017 Patricia Taylor Executive Director Madera County Transportation Commission 2001 Howard Road, Suite 201 Madera, CA. 93637 Steve DeBaun Charity Schiller Best Best & Krieger LLP 3750 University Avenue, Suite 400 Riverside, CA 92501 P.O. Box 1028 Riverside, CA 92502 Malathy Subramanian Best Best & Krieger, LLP 2001 N. Main Street, Suite 390 Walnut Creek, CA 94596 Amicus Curiae MADERA COUNTY TRANSPORTATION COMMISSION VIA U.S. Mail Amicus Curiae RIVERSIDE COUNTY TRANSPORTATION COMMISSION VIA U.S. Mail Amicus Curiae CONTRA COSTA TRANSPORTATION AUTHORITY VIA U.S. Mail Neighborsfor Smart Rail v. Exposition Metro Line Construction Authority, et al., California Supreme Court Case No. S202828 (Second District Court of Appeal, Division Eight, Case No. BS232655; Los Angeles County Superior Court Case No. BS125233) SERVICE LIST (Continued) Michael Estrada General Counsel Richards Watson Gershon 355 South Grand Avenue, 40th Floor Los Angeles, CA 90071-3101 Evelynn N. Tran Senior Assistant Counsel Santa Clara Valley Transportation Authority 3331 North First Street Building C, Second Floor San Jose, CA 95134 Bradley R. Hogin _ Woodruff, Spradlin & Smart 555 Anton Boulevard, Suite 1200 Costa Mesa, CA 92626 Amicus Curiae METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY VIA U.S. Mail Amicus Curiae SANTA CLARA VALLEY TRANSPORTATION AUTHORITY VIA U.S. Mail Amicus Curiae ORANGE COUNTY TRANSPORTATION AUTHORITY VIA USS. Mail