Opinion
A166861
05-16-2024
MOTHERS AGAINST TOXIC HOUSING et al., Plaintiffs and Appellants, v. CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Defendant and Respondent, HRP CAMPUS BAY PROPERTY, LLC, Real Party in Interest and Respondent.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. MSN21-1391
RICHMAN, ACTING P.J.
Plaintiffs appeal a judgment rejecting their CEQA challenge involving an 86-acre site in Richmond that has been under the responsibility of the California Department of Toxic Substances control since 2005, a judgment that followed a 46-page statement of decision. This challenge followed shortly after an earlier CEQA challenge involving the same property, filed by some of the same plaintiffs, represented by the same attorney. This earlier CEQA challenge was also rejected by the same trial judge, there in a judgment following a 40-page order following hearing. That judgment is now final. And so is the one here, as we affirm.
BACKGROUND
The Administrative Phase
The voluminous record before us supports the following recitals: The California Department of Toxic Substances Control (Department) is, as its name implies, the state agency charged with the primary-but not exclusive-responsibility for supervising the clean-up of sites contaminated with toxic waste and its environmental consequences. One such site, which had been devoted to chemical manufacturing for the better part of a century, sits on 86 acres in Richmond which, due to a former owner, is often referred to as the Zeneca site. Commercial activity at the site ceased in 1997, by which time the site was badly contaminated.
The Department took over regulatory responsibility for the site in 2005. Matters do not move swiftly when the subject of cleaning up contaminated sites is involved. After protracted administrative proceedings, and in conformity with the California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.), and after a massive environmental impact report had been certified by the City of Richmond for conversion of the site to new uses, the Department took several actions that are at the heart of the present appeal.
Subsequent statutory references are to this Code.
First, in November 2019, the Department approved a Feasibility Study &Remedial Action Plan (FS/RAP) covering a large portion of the site. With citations omitted, certain aspects of that lengthy document are described in the trial court's statement of decision, as follows:
"The FS/RAP describes at length the history of the Zeneca Property, the prior remediation performed at the Site, the testing and pilot studies undertaken to evaluate the contamination at the Site and the efficacy of certain remediation measures, and multiple alternative forms of remediation considered by the [Department] to clean up the Zeneca Property. The FS/RAP describes the results of the prior remediation performed at the Site, the results of the pilot studies, and the technologies available and considered for remediation at the Site. The FS/RAP explains that [the Department] chose Alternative 3a for remediation of the Site, detailing the remediation to be performed under that alternative and why [the Department] concluded that was the best alternative. The FS/RAP also details how the [Department] anticipated the remediation would be implemented. The FS/RAP includes a detailed Site Management Plan for the Site which describes steps in the implementation of the remediation plan in Appendix H to the FS/RAP." Because it further determined the remedial efforts would not have a significant environmental impact, the Department adopted a negative declaration, as allowed by CEQA. This document evidenced the Department's determination that operations encompassed by the FS/RAP would not present significant environmental consequences. (See CEQA Guidelines, §§ 15371, 15070.)
"The Guidelines . . . are the regulations promulgated by the Secretary of Natural Resources Agency found in title 14 of the California Code of Regulations beginning at section 15000. Subsequent references to 'CEQA Guidelines' will be understood as referring to these regulations. These guidelines are binding upon all state and local agencies in applying CEQA. [Citation.] In addition, courts accord the guidelines great weight' "except where they are clearly unauthorized or erroneous."' [Citation.]" (Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th 1245, 1256, fn. 12.) None of the parties to this appeal challenges the validity of applicability of any Guideline.
Second, on July 1, 2021, the Department approved a Prospective Purchaser Agreement (PPA) with HRP Campus Bay Property, LLC (Campus), which, according to plaintiffs, intends to "develop a large mixed-use project on the Zeneca Site, including up to 4,000 residential units." As the Department accurately summarizes in its brief, "the PPA is a legal agreement that protects [Campus] from liability associated with pre-existing contamination at the Zeneca Site. In return, [Campus] committed to complete portions of the cleanup activity at the site previously approved under the FS/RAP, and to satisfy certain financial obligations relating to local community organizations and remedial alternatives." It is, in short, "a supplemental legal agreement that relates solely to the funding and legal liability" of its objective.
The trial court noted some additional background: "While a prospective purchaser agreement and covenant not to sue may not have been required legally in order for remediation to occur, such agreements are apparently so routine and such a practical necessity where a third party intends to purchase the contaminated property and perform the remediation that for roughly 25 years, [the Department] has had a detailed written policy regarding granting such agreements. There is evidence in the record that [the Department] exercised its discretionary authority to enter into and approve the PPA with [Campus] for this site at the prospective purchaser's request, and that [Campus] sought to have the PPA approved before it took title to the Zeneca Property, as the timing of the public comment (Page 5) deadlines were set in part so that the PPA could be approved and [Campus] take title before a deadline set in the development agreement with the City of Richmond."
At the time it approved the PPA, the Department made this finding: "This Agreement relates to funding and legal liability and a requirement to carry out activities that were analyzed in previous CEQA documents by [the Department].... There will be no direct or indirect physical change to the environment due to the required notification and creation of reports. The Agreement will not result in an additional change in any of the physical conditions within California, including land, air, water, minerals, flora, fauna, ambient noise, and objects of historic or aesthetic significance. Therefore, [the Department] finds with certainty that there is not a possibility that the activities in question will result in a significant environmental effect."
The focus now shifted from the administrative to the judicial.
The Judicial Phase
A month after the PPA was agreed, a group of seven nonprofit and unincorporated associations (plaintiffs or petitioners) commenced this action with a Petition For Writ of Peremptory Mandate against the Department and Campus, the latter being designated as the real party in interest. The petition made explicit that it was an "Action under the California Environmental Quality Act" "to challenge the final approval by . . . [the] DEPARTMENT . . . of a Prospective Purchaser Agreement . . . with CAMPUS." The petition set forth a single cause of action and the supporting allegations make it clear that although the PPA is the ostensible target, the petition is inextricably tied to the FS/RAP, as shown by the following excerpts:
The seven plaintiffs are: Mothers Against Toxic Housing, Richmond Shoreline Alliance, SPRAWLDEF, Citizens for East Shore Parks, Sunflower Alliance, Greenaction for Health and Environmental Justice, and Sierra Club.
"Petitioners allege that [the Department's] approval of the PPA was an abuse of discretion in violation of CEQA because the PPA and its approval failed to take into account changed circumstances and new information about the cleanup plan. Petitioners further allege that as a result of those changed circumstances and new information, the current [Department]-approved cleanup plan, approved in 2019, will not only be ineffective in remediating the Zeneca Site, but will, instead, result in spreading toxic materials now located in the soil and groundwater under the Zeneca Site in all directions ...."
"The Final FS/RAP considered six major alternatives and some subalternatives .... From among those alternatives, [the Department] chose Alternative 3A, which would remove some of the most toxic materials from the site, treat the remaining materials in situ by injection of remediation materials into the ground, and then cover the site with a concrete cap, above which residential buildings could be built.
"Petitioners are informed and believe, and on that basis allege that although there was no substantial evidence showing that the proposed in situ treatments would be both effective and adequate at the Zeneca Site, the FS/RAP asserted that when treatment was completed, an impermeable concrete cap placed over the remaining toxic materials, and other specified protections implemented, the site could be safely developed for multifamily residential use, including ground floor residential use."
"The 2019 negative declaration for approval of the FS/RAP addressed then-available information, based on a 2012 report, on the rate of sea level rise and the effect of the expected amount of sea level rise on the Zeneca Site, its surrounding area, and [the] toxic materials located on the site. However, in January 2020, the State of California released a new set of guidelines that significantly increased the amount of sea level rise to be expected along the California coast . . . as well as principles for addressing that sea level rise."
"Substantial evidence in the comments submitted to [the Department] during the public review period of the PPA indicated that the increased rate of sea level rise identified by the State of California's new 2020 sea level rise guidance would result in new or increased impacts from allowing or facilitating [Campus's] moving forward to implement Remediation Option 3A compared with when the FS/RAP was approved in 2019. The impacts would occur as a result of [Campus's] reliance on the PPA in moving forward to implement [the Department's] approved Remediation Option 3A."
Three issues were tried to the court, to the Honorable Edward Weil: (1) whether the PPA qualified as a "project" as defined by CEQA; (2) assuming it was a project, whether any of the CEQA exemptions applied; and (3) whether the PPA "may have a significant effect on the environment" (§§ 21100, 21082.2), as shown by "new information" demonstrating "changed circumstances" (§ 21166; CEQA Guidelines, § 15162), thus triggering CEQA's provisions for the subsequent review of an action that has already undergone environmental review by the relevant decision maker. In this case that decision was the Department's adoption of a negative declaration when it approved the FS/RAP.
All three of these issues were decided by Judge Weil against plaintiffs in a comprehensive and tightly reasoned 46-page statement of decision. Following entry of a formal judgment, plaintiffs perfected this timely appeal.
DISCUSSION
The Basic CEQA Procedures
"CEQA and its implementing administrative regulations . . . establish a three-tier process to ensure that public agencies inform their decisions with environmental considerations. [Citation.] The first tier is jurisdictional, requiring that an agency conduct a preliminary review to determine whether an activity is subject to CEQA. (CEQA Guidelines, § 15060; see Pub. Resources Code, § 21065.) An activity that is not a 'project' as defined in the Public Resources Code (see § 21065) and the CEQA Guidelines (§ 15378) is not subject to CEQA. (CEQA Guidelines, §15060, subd. (c)(3).)
"The second tier concerns exemptions from CEQA review. The Legislature has provided that certain projects . . . are exempt. [Citations.] In addition, pursuant to the Legislature's command [citation], the CEQA Guidelines list categorical exemptions or 'classes of projects' that . . . [are] exempt per se because they do not have a significant effect on the environment. [Citations.]
"A project that qualifies for neither a statutory nor a categorical exemption may nonetheless be found exempt under what is sometimes called the 'common sense' exemption, which applies '[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment (CEQA Guidelines, § 15061, subd. (b)(3).)" (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 379-380 (Muzzy Ranch Co.).)
Although approval of a project generally ends the process (CEQA Guidelines, § 15162(c) ["Once a project has been approved . . . [i]nformation appearing after an approval does not require reopening of that approval"]), CEQA does have a window for subsequent environmental review. It is in Section 21166, which provides in pertinent part as follows:
"When an environmental impact report has been prepared for a project . . ., no subsequent or supplemental environmental impact report shall be required by the lead agency or by any responsible agency, unless one or more of the following events occurs:
"Substantial changes are proposed in the project which will require major revisions of the environmental impact report.
"Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the environmental impact report.
"New information, which was not known and could not have been known at the time the environmental impact report was certified as complete, becomes available."
Our Supreme Court has held that, although the statutory language is limited to situations where an environmental impact report (EIR) has been certified, it also applies to situations where the relevant responsible agency has adopted a negative declaration. (Friends of College of San Mateo Gardens v. San Mateo Community College Dist. (2016) 1 Cal.5th 937, 945-946, 954-956 (San Mateo Gardens).) And that is what occurred here, when the Department adopted the FS/RAP.
Ordinarily, the relevant agency can rely on the previous environmental determination/document, whether it be an EIR or a negative declaration. That decision is more justified when there has been an EIR, with a full examination of a project's environmental consequences. Because a negative declaration does not contain a detailed environmental analysis, it is only when, as plaintiffs put it, "new evidence of changed circumstances or new information would support a fair argument of a significant impact, environmental review must be reopened." (See San Mateo Gardens, supra, 1 Cal.5th 937, 952, 958-959.)
"[W]hether an initial environmental document remains relevant despite changed plans or circumstances-like the question whether an initial environmental document requires major revisions due to changed plans or circumstances-is a predominately factual question. It is thus a question for the agency to answer in the first instance, drawing on its particular expertise. [Citation.] A court's task on review is then to decide whether the agency's determination is supported by substantial evidence; the court's job '" 'is not to weigh conflicting evidence and determine who has the better argument.'"' [Citation.]" (San Mateo Gardens, at pp. 952-953.)
The Prior Action
As already shown, the Zeneca site is slated for massive residential development by Campus. That clearly amounts to a "project" for purposes of CEQA because it will entail "a direct physical change in the environment" (§ 21065)-and thus would require an EIR. The record shows that an EIR was in fact prepared, in 2016, which EIR encompassed an area termed the "Richmond Bay," of which the Zeneca property is part of "Sub-Area 4." That EIR-and it is characterized as a final EIR-was adopted by the City of Richmond, apparently also in 2016.
The specifics of remediation did not come to the fore until an addendum to the final EIR was adopted in 2020 by the Richmond City Council. The addendum included a Mitigation Monitoring and Reporting Program to govern the remission measures. As already mentioned, this was after the Department had adopted the FS/RAP-and prior to which the Department had considered various remediation options.
However, after the City Council approved the addendum to the 2016 EIR-but before the Department approved the FS/RAP-in October 2019, a judicial challenge to the City Council's action was commenced in Contra Costa Superior Court: Richmond Shoreline Alliance, et al. v. City of Richmond, HRP Campus Bay Property LLC, real party in interest (the first action or the Shoreline Action), this action was also heard by Judge Weil, and much of the information set out in the three preceding paragraphs is taken from his 40-page Order After Hearing in that action rejecting that challenge. The details are revealing.
First, although the first action was directed against the City of Richmond, while this one is against the Department, an agency of the State, two organizations (Richmond Shoreline Alliance and SPRAWLDEF) appear as plaintiffs in both. Those plaintiffs in both actions had the same set of attorneys. And both actions were tried to Judge Weil, and it is his Order After Hearing in the first action-filed in May 2022-that is the most remarkable, because it establishes the eerie overlap of the two actions. Specifically:
Which was after the Department had approved the FS/RAP, after the Department had approved the PPA, and after the present action was commenced.
Judge Weil began his analysis by describing one of the issues as the claim that Richmond "violated" CEQA based on "Respondents' failure to reopen environmental review of the Project" and "Respondents' fail[ure] to adequately address . . . new information," specifically, the "updated sea level rise ('SLR') projections from a May 1, 2020 report issued by the California Coastal Commission, with an estimated amount of SLR petitioners contend is higher than that considered by Respondents, and the effect on the Project in light of the [Department's] 2019 determination to employ Alternative 3a to remediate the Zeneca Property in the FS/RAP." Judge Weil concluded that the claim "that the issuance of FS/RAP constitutes changed circumstances that requires supplemental or subsequent environmental review" was forfeited because it had not been raised during the administrative proceedings.
Judge Weil then concluded" 'New Information' Regarding Impact of SLR on the Project Is Not A CEQA Issue Required to Be Addressed." Citing California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, the decision by Division Four of this District in Citizens' Committee to Complete the Refuge v. City of Newark (2021) 74 Cal.App.5th 460, and Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, Judge Weil concluded that plaintiffs' "arguments do not raise issues showing the Project would have a more significant or exacerbated impact on the environmental not considered in the Addendum, but rather that potential environmental changes based on the SLR may impact the Project." Stated another way, "Petitioners' arguments . . . focus on the potential effect of SLR on the Zeneca Property and the Project, not the effect of the Project on the environment, which is the concern of CEQA."
Similarly, "The New SLR Information Does Not Raise Previously Unknown Information Regarding SLR with Significant Effects Not Discussed in FEIR [the final EIR] or Show the Project Will Have Substantially More Severe Significant Effects." Moreover, the final EIR (Page 15) recognized the risks of rising groundwater from SLR and the risk of resulting flooding. "The F[inal] EIR includes provisions regarding mitigation measures and adaptive measures to address the risks."
Lastly, Judge Weil rejected the argument that the Department adopting "Remediation Option 3A" was a changed circumstance because "The Addendum specifically addresses the [Department's] remediation plan and its interplay with the Project as approved."
These echoes from the past are appropriate, as we now look at the arguments plaintiffs advance in their briefs on this appeal.
Plaintiffs' initial contention, anticipating what the Department and Campus would argue, is that none of their claims was lost, waived, or forfeited. Next, quoting the caption in their brief, plaintiffs contend that the Department's "procedural violations of CEQA in approving the PPA require reversing the approval[] because the public was deprived of the opportunity to comment on the project's potentially significant impacts." Plaintiffs' subcontentions are set out as follows: (1) The Department's "misleading statements to the public 'drew a red herring across the path of public input,'" and (2) "While not a separate project, approval of the PPA was a subsequent approval with [the Department's] CEQA project for cleanup of the Zeneca Site." The next caption in plaintiffs' brief is "The 'common sense' exemption from CEQA review did not apply."
The final section of the brief is the most extensive. Under the caption "The Trial Court Erred In Allowing [The Department] To Continue To Rely On The 2019 Negative Declaration For The FS/RAP," are two subcontentions. Sub-contention 1 discusses "the . . . test for reopening environmental review set forth in San Mateo Gardens." Under subcontention 2-"Application of the San Mateo Gardens test to the approval of the PPA for the Zeneca Site"-there are four sub-sub-contentions: "a. The new evidence presented to [the Department] prior to its approval of the PPA. b. The effects from an increased rate of sea level rise could be exacerbated by the low permeability cap called for in the FS/RAP. c. The draft guidance on screening and evaluating vapor intrusion indicated that the use of the Johnson-Ettinger model risked further exacerbating the impacts from the FS/RAP's low permeability cap. d. The public could not have raised how faster rates of sea level and groundwater level rise and higher mobility of VOCs could have increased impacts from the low permeability cap during the approval process for the 2019 FS/RAP."
None of the arguments has merit-Judge Weil got it right.
The Petition Was Properly Denied
There was an EIR for the Zeneca site, prepared by the City of Richmond, that is now final. That EIR was modified by the Addendum with the Mitigation Monitoring and Reporting Program. There was the further equivalent of an EIR, a negative declaration, that was issued by the Department when it approved the FS/RAP, and a specific remediation option. As already shown, that was unsuccessfully challenged-by some of the same plaintiffs on this appeal-and its validity is not open here.
As already shown, CEQA makes provision for yet another reexamination, in the form of section 21166 (and the supporting CEQA Guidelines, § 15162). It is impossible to disagree with Judge Weil's conclusion that the PPA does not amount to a "project" as that concept is defined by CEQA. The future use of the site had been extensively examined, its significant environmental impacts had been identified, and the measures to remediate those impacts had, after considerable examination of possible options, been approved. Also approved was a monitoring program to ensure that remediation efforts actually complied with what was ordered. The PPA neither added nor subtracted anything to the decisions already made. Its purpose was not environmental, but merely to designate the party that would undertake the remediation measures and be subject to the monitoring program. The PPA did not in any way modify the remediation measures already approved.
Approving the execution of the PPA document was not "an activity which may cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment." (§ 21065.) "Project" cannot mean every governmental action or decision that may have a tangential connection to a project. (Cf. Guidelines, § 15378, subd. (c) ["the term 'project' does not mean each separate governmental approval"].) We thus agree with Judge Weil that the Department was justified in concluding "with certainty that there is not a possibility that [the PPA] will result in a significant environmental effect."
This reasoning would also defeat plaintiffs' contention that the "common sense" exemption does not apply, because that exemption governs situations" '[w]here it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.'" (Muzzy Ranch Co., supra, 44 Cal.4th 372, 380.) We say "would" because plaintiffs are attacking a nonexistent target: given Judge Weil's conclusion that the PPA did not constitute a "project," he determined there was no need to decide whether the "common sense" exemption-which is germane only if there is a project to exempt-applied. In short, plaintiffs are arguing a non-issue, attacking a phantom.
Plaintiffs' efforts to argue otherwise depend on the success of their major contention, that the Department could not approve the PPA because "new information" and/or "changed circumstances" required a halt to reexamine the entire issue of remediation.
So, does plaintiffs' evidence qualify as "new"? It is certainly not "new information" in the sense that it only recently came into creation. Nor can it be deemed "new" in the sense that it only recently came to plaintiffs' attention in the present litigation. Nor "new" in the sense that it has only now made its first appearance in court. Finally, plaintiffs' evidence is not "new" even in the very limited sense that it is being presented for the first time against a particular defendant, namely, the Department.
As for "changed circumstances," CEQA Guidelines section 15162(a) is explicit that subsequent or supplementary environmental review is not required when "the leader agency"-i.e., the Department-"determines, on the basis of substantial evidence in the light of the whole record" that "major revisions of the previous EIR or negative declaration" are necessitated "due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects" that were "not discussed in the previous EIR or negative declaration" because of "[n]ew information of substantial importance, which was (Page 20) not known and could not have been known with the exercise of reasonable diligence." (CEQA Guidelines, § 15162(a)(2) &(a)(3).)
Here, although there was an EIR certified by the City of Richmond, the operative event was the negative declaration by the Department when it adopted the FS/RAP. Thus, when the Department approved the PPA, there had already been a full environmental review, the Mitigation Monitoring and Reporting Program Department was adopted, and a specific remediation option had been selected.
The Department's adoption of a negative declaration when it approved the FS/RAP is entitled to a presumption of finality. (San Mateo Gardens, supra, 1 Cal.5th 937, 956.) In its subsequent approval of the PPA, the Department was not obliged to disregard that presumption unless and until plaintiffs brought forward substantial evidence that was either new or demonstrated a prospect of unconsidered environmental impacts that overcame any relevance that the initial environmental determination-the negative declaration-continued to possess. (Id. at pp. 944, 952-953.) The Department's approval of the PPA encompasses an implicit finding that plaintiffs failed to carry that burden. (Id. at p. 953, fn. 4; accord, Citizens for a Megaplex-Free Alameda v. City of Alameda (2007) 149 Cal.App.4th 91, 114-115.)
Again, we emphasize that by the time the PPA came to be considered, the environmental heavy lifting had already been accomplished. The EIR had been certified by the City of Richmond, and a negative declaration had been adopted by the Department. The administrative proceedings had been protracted, and the resulting administrative record considerable. Accordingly, it was more than reasonable for the Department-when considering the PPA, with its de minimis environmental impact-to conclude that the negative declaration retained relevance. (See San Mateo Gardens, supra, 1 Cal.5th 937, 952.)
It was plaintiffs' burden to show the absence of substantial evidence to support such a finding. (Citizens' Committee to Complete the Refuge v. City of Newark, supra, 74 Cal.App.5th 460, 470.) And this court has emphasized that, as in other contexts, meeting that burden requires appellants to lay out all the relevant evidence in the administrative record to demonstrate that there is no substantial evidence in that record to support the Department's finding. (Committee for Re-Evaluation of T-Line Loop v. San Francisco Municipal Transportation Agency (2016) 6 Cal.App.5th 1237, 1252-1253 and decisions cited.) The most cursory comparison of the briefs of plaintiffs, the Department, and Campus leaves no doubt that plaintiffs have failed to comply with this obligation. This is most obvious in plaintiffs' utter failure to address Judge Weil's legal conclusions that (1) approving the PPA does not cause any environmental impacts, and (2) plaintiffs are relying on information about environmental impacts of what might happen to the Zeneca Site.
With respect to the merits, and the core of plaintiffs' position, citing the same decisions as did Judge Weil, Division Three of this District recently made the flat statement that "Sea level rise is not an impact on the environment caused by the project." (Citizens' Committee to Save the Refuge v. City of Newark, supra, 74 Cal.App.5th 460, 478.0. And when Judge Weil in essence incorporated by reference the reasoning of his previous order (which we quoted above) he augmented it with this latest authority. None of these authorities was addressed in plaintiffs' opening brief.
Finally, we note that plaintiffs have no persuasive answer to the following excerpts from Judge Weil's latest order: "There are no changes in the Project provided in the PPA from the remediation of the Site and mitigation measures set forth in the FS/RAP. [Plaintiffs] have not demonstrated based on all the evidence in the record that there is no substantial evidence to support the [Department's] implied finding [that] the Project of remediating and mitigating the contamination at the Site under the FS/RAP will not exacerbate the environmental hazards on the Zeneca Property.... [Plaintiffs] have not demonstrated there is no substantial evidence to support the [Department's] implicit finding that the SLR estimates are not new information, that no substantial changes have occurred in the circumstances for undertaking the Project, that no major revisions in the negative declaration are required based on the 2020 SLR Recommendation, and that there are no new significant environmental effects not considered in the approval of the FS/RAP based on the 2020 SLR Recommendation.
"Though the specific 2020 SLR Recommendation did not exist until approximately six months after the FS/ RAP was approved, the existence of and risks associated with SLR were matters specifically considered and addressed in the FS/RAP.... The FS/RAP incorporates contingencies to address potentially higher levels of SLR. [Plaintiffs] have not met their burden of demonstrating that there is a fair argument the information presented in the 2020 SLR Recommendation is new, that the information regarding SLR was not considered when the FS/RAP was approved by negative declaration, or that the information would require 'major revisions' to the negative declaration approving the FS/RAP. The document does not present evidence of new information not studied in the FS/RAP."
The preceding analysis, and our own examination of the record, establish beyond doubt that plaintiffs could not carry that burden. It follows that Judge Weil was completely warranted in denying their attempt to have a second bite of the apple in using the same information to try to derail the project. This analysis applies only to the matter of sea levels.
Plaintiffs' other argument requires different treatment. This argument was not raised in the prior litigation and thus did not figure in Judge Weill's first order. However, resolution need not be lengthy. In his second order, Judge Weil set out the nature of plaintiffs' position: "Under the heading 'Changed circumstances and new information relevant to the Campus Bay Site,' Petitioners allege that after [the Department's] approval of Alternative 3a for cleanup of the Site in the FS/RAP . . . CalEPA, [the Department], and RWQCB [the Regional Water Quality Control Board] jointly released 'a new draft protocol for evaluation of vapor intrusion to assess the penetration of toxic volatile organic compounds into structures,' including the chemical trichloroethylene ('TCE'), recommending that the new protocols be used rather than earlier and 'less accurate' methods like the Johnson &Ettinger Model ('2020 Draft VOC Measurement Guidelines')."
Plaintiffs advise that VOC stands for Volatile Organic Compound.
Judge Weil first concluded that the Draft Guidelines were based almost entirely on existing materials, and thus did not qualify as new within the meaning of CEQA Guideline § 15162. As he described, "The 2020 Draft VOC Measurement Guidelines . . . cites at length '[t]echnical and regulatory publications' and published studies in support of the statements regarding the draft finding (page 25) [regarding the Johnson and Ettinger model] and recommendation, all included in the extensive list of references at the end of the draft and all of which show publication dates preceding approval of the 2019 FS/RAP." (Underscoring in original.) Nor was it sufficiently material to obliterate reliance on the negative declaration adopted by the Department. "The document is admittedly a draft, subject to public comment and additional review, and non-binding. It explicitly states it is 'not intended to exclude alternative methodologies.'
"The draft recommendations also appear to be focused on screening of existing buildings, not undeveloped sites subject to a remediation plan. Although the draft recommends the 2015 USEPA AF rather than the Johnson and Ettinger model 'for the initial screening of occupied buildings,' it also states, 'alternative approaches may be used if supported by adequate technical and site information.' "
On this point we add several comments to Judge Weil's analysis. First, courts lack institutional expertise in the technical aspects of the issues covered by CEQA, and therefore do not demand "technical perfection or scientific certainty." (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 515.) This principle is frequently manifested as deferring to the means or methodology chosen by the responsible agency to identify and remediate an environmental impact. (E.g., Santa Rita Union School Dist. v. City of Salinas (2023) 94 Cal.App.5th 298, 334; Chico Advocates for a Responsible Economy v. City of Chico (2019) 40 Cal.App.5th 839, 851; Placerville Historic Preservation League v. Judicial Council of Cal. (2017) 16 Cal.App.5th 187, 196-197; CEQA Guidelines, former § 15064.4; cf. Save the Agoura Cornell Knoll v. City of Agoura Hills (2020) 46 Cal.App.5th 665, 693 [" 'an agency is not required to conduct all possible tests or exhaust all research methodologies' "].) This court very recently pointed out that this deference extends to" 'the reliability or accuracy of the data'" underpinning those decisions. (Tiburon Open Space Com. v. County of Marin (2022) 78 Cal.App.5th 700, 728.) It was a vain hope for plaintiffs to apply for judicial intervention to discredit the Johnson and Ettinger model.
Second, plaintiffs candidly admit that the "some" underlying data and studies "was likely publicly available prior to [the Department's] approval of the FS/RAP. However it was the State of California's use of that data to take public policy positions, not the prior data per se, that was the changed circumstance and new information placed before [the Department]." This is novel and creative, but not persuasive. Science is always changing and advancing. CEQA accepts that the principle of finality must sometimes prevail. Moreover, citing Concerned Dublin Citizens v. City of Dublin (2013) 214 Cal.App.4th 1301 and Fort Mojave Indian Tribe v. Department of Health Services (1995) 38 Cal.App.4th 1574, Campus correctly notes "it is well-established that newly adopted regulations or guidelines do not constitute new information if the information about the underlying issue was known or should have been known at the time the original environmental document was certified or adopted."
Finally, plaintiffs' present approach can also be seen as a collateral attack on the adequacy of the mitigation and monitoring plan in the FS/RAP and the EIR Addendum. As we have previously noted, the adequacy of such a program is only required to be a "reasonably feasible." (Tiburon Open Space Com. v. County of Marin, supra, 78 Cal.App.5th 700, 773.) Plaintiffs make no such claim overtly, but the entire tenor of this litigation is that the Department could make it better. This comes too close to demanding the "technical perfection" second guessing that our Supreme Court directs should not be a judicial concern (Sierra Club v. County of Fresno, supra, 6 Cal.5th 502, 515)-not to mention an obvious effort to re-open matters that are final. In light of the foregoing, the Department's decision to continue to treat the negative declaration as retaining relevance, and thus not to re-open environmental review, certainly has the support of substantial evidence. (San Mateo Gardens, supra, 1 Cal.5th 937, 952-953.)
DISPOSITION
The judgment is affirmed.
We concur: Miller, J., Mayfield, J. [*]
[*]Superior Court of Mendocino County, Judge Cindee Mayfield, sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.