Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. 03CS00003, 03CS00018
DAVIS, J.
This is the second time we have seen this matter. And it is not the last. There is a third appeal on the heels of this one. We set both appeals for oral argument on the same day and we are filing concurrent opinions in them. This matter involves the application of the California Environmental Quality Act (hereafter CEQA; Pub. Resources Code, § 21000 et seq.; see id. at § 21050) to a freeway interchange project that will allow an Indian casino and hotel complex to be built.
Hereafter, undesignated section references are to the Public Resources Code.
The present appeal involves a supplemental environmental impact report (SEIR) drafted by the Department of Transportation (Caltrans) in response to our opinion in the first appeal (and to the trial court’s writ of mandate implementing that opinion). Appellants Voices for Rural Living and Shingle Springs Neighbors for Quality Living (hereafter collectively referred to as Voices) claim the SEIR does not satisfy the two inadequacies of the environmental impact report (EIR) that we identified in the first opinion, and also claim the SEIR is procedurally defective in four respects. The trial court rejected Voices’ claims, found the SEIR sufficient, and discharged the writ of mandate. Voices now appeals. We affirm.
Background
The project at issue is a freeway interchange on Highway 50 that will connect the highway to the Rancheria of the Shingle Springs Band of Miwok Indians (the Tribe), allowing the Tribe to develop a hotel and casino complex. The Tribe is paying for the cost of the interchange.
According to El Dorado County (County), the hotel and casino complex will be one of the largest commercial developments in the county, both in size and traffic generation. The complex will occupy 44 acres of the 160-acre Rancheria, employ around 1,500 persons, and include a 238,500 square-foot casino, a five-level, 250-room, 143,000 square-foot hotel, and parking to accommodate 3,000 cars (including a five-level parking structure).
Caltrans approved the interchange project based on an EIR that it drafted and a federal environmental assessment (EA) that the National Indian Gaming Commission and the Bureau of Indian Affairs penned. The EIR/EA was a joint document prepared pursuant to CEQA and the National Environmental Policy Act (NEPA) (42 U.S.C. § 4321 et seq.). The EA focused on the on-reservation and related impacts of the proposed hotel and casino project, imposed mitigation measures on that development, and found no significant environmental impacts as mitigated. The EIR, among other things, analyzed the interchange and hotel/casino together as to the traffic-based air quality impacts because the hotel/casino development would comprise nearly all of the traffic volumes for the interchange.
In our first opinion in this matter, which we published and the Supreme Court later depublished, we found the EIR for the project insufficient in two respects: one, the analysis of the project’s traffic-based air quality impacts concerning two ozone precursors; and two, the analysis of a smaller hotel and casino alternative. As we stated in our first opinion: “To be sufficient, [first] the EIR will have to disclose and analyze what the interchange/hotel-casino’s specific traffic-based ROG [reactive organic gases] and NOx [nitrogen oxide] emissions (or estimates) are [ROG and NOx are precursors for ozone (smog)], what their contributions to the regional emissions budgets are, and whether these emissions and contributions are significant (for example, in comparison to other existing or planned projects within the [regional budgets]). [Second], [t]he EIR must also consider and analyze the alternative, or alternatives, of a smaller hotel and casino complex. The matter is remanded to the trial court for it to issue a peremptory writ of mandate consistent with this disposition.”
Pursuant to our remand, the trial court issued a peremptory writ of mandate to Caltrans in line with these two findings from the first appeal. Caltrans then drafted the SEIR to address these two deficiencies and filed with the trial court a further return to the writ of mandate based on this SEIR. As noted, the trial court found the SEIR sufficient and discharged the writ of mandate.
1. Issues and Standard of Review
On appeal, Voices contends: (1) the one percent threshold of significance that Caltrans used in the SEIR in evaluating the ozone precursor emissions violates CEQA; (2) the SEIR’s alternatives analysis is insufficient; and (3) Caltrans failed to obtain required input from the public and from public agencies as to the SEIR.
In reviewing CEQA issues on appeal, we determine, independently from the trial court, whether the relevant agency prejudicially abused its discretion either by making a decision unsupported by substantial evidence or by failing to comply with legal procedures. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 (Citizens of Goleta Valley); Planning & Conservation League v. Department of Water Resources (2000) 83 Cal.App.4th 892, 911-912.) “A court’s proper role in reviewing a challenged EIR is not to determine whether the EIR’s ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document.” (Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 1391, citing Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 407 (Laurel Heights).) “An EIR must include detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” (Laurel Heights, supra, 47 Cal.3d at p. 405.)
2. One Percent Threshold of Significance
a. Background
Before we tackle this issue, we must explain how the EIR evaluated the traffic-based ROG and NOx air quality impacts for the interchange/hotel-casino project.
In determining that the interchange/hotel-casino would not have a significant impact in this respect, the EIR relied exclusively on a regional transportation conformity determination. This conformity determination is derived from the federal Clean Air Act, which sets forth health-based air quality standards covering ROG and NOx and which requires that states adopt regional-based state implementation plans (SIPs) to attain those standards. (42 U.S.C. §§ 7409, 7410.) Under the federal Clean Air Act, federally approved transportation projects located in nonattainment regions, such as the interchange/hotel-casino project here, must conform to regional “mobile source emissions budgets” (i.e., traffic-based emissions standards) established in the SIP. (See 42 U.S.C. § 7506.) (The Sacramento region, which comprises all of Sacramento and Yolo Counties, portions of Solano and Sutter Counties, and all of El Dorado and Placer Counties, except for the Lake Tahoe Air Basin, is a “severe” ozone [smog] nonattainment region.)
In the EIR, Caltrans concluded that the interchange/hotel-casino project would not have a significant traffic-based impact on air quality regarding ROG and NOx emissions because the project’s operation was in conformity with the regional “mobile source emissions budgets” set forth in the SIP. This conformity was demonstrated because forecasted regional emissions levels--which encompass emissions from the interchange/hotel-casino project along with all other existing and planned transportation projects in the region--were found to be within the regional emissions budgets established in the SIP.
In the first appeal, County contended that the EIR was insufficient as an information document in this regard because this regional air quality analysis improperly failed to disclose and analyze the specific traffic-based ROG and NOx emissions from the interchange/hotel-casino project itself. We agreed. The regional transportation conformity’s analysis was fine as far as it went, but it did not go far enough. (In the meantime, County has settled with the Tribe for what Voices has estimated is $180-200 million, which in part will be used to fund carpool lanes. County now favors the interchange/hotel-casino project and has submitted a brief in this appeal contending the SEIR should be upheld.)
We concluded in our first opinion that, for the EIR to be sufficient as an information document on the issue of ROG and NOx, it would have to disclose and analyze (1) what the interchange/hotel-casino’s specific traffic-based ROG and NOx emissions (or estimates) are; (2) what their contributions to the regional emissions budgets are; and (3) whether these emissions and contributions are significant (for example, in comparison to other existing or planned projects within the transportation conformity analysis). We directed the trial court to issue a writ of mandate in this regard. The trial court did so. And that brings us to the SEIR.
Caltrans drafted an SEIR to carry out this three-part directive.
Voices’ concern is with our third directive. Caltrans determined in the SEIR that the ROG and NOx emissions and contributions of the interchange/hotel-casino project (occasionally hereafter, the interchange project) are less than significant because they comprise less than one percent of the regional mobile source emissions budgets for ROG and NOx set forth in the SIP. Voices claims this one percent threshold of significance is (1) impossibly high; (2) constitutes an improper ratio-type methodology that masks project-specific impacts; and (3) ignores state and local standards. As an example of the application of this one percent standard, the SEIR pegged the maximum traffic-related ROG emissions for the interchange at .11 tons per day, which comprises .35 percent of the mobile source emissions budget of 31.32 tons per day; the analogous maximum figure for NOx emissions is .23 tons per day, which comprises .37 percent of the emissions budget of 61.35 tons per day. Since these project-specific, traffic-related ROG and NOx emissions are less than the one percent threshold of significance--indeed, “less than one-half of one percent”--Caltrans concluded they are less than significant.
Caltrans formulated the one percent threshold of significance as follows. It determined that the significance of ozone precursor emissions, such as ROG and NOx, from vehicular mobile sources, is best determined on a regional basis given the regional manner in which such ozone is formed (i.e., transient nature of transportation emissions over varying geographies and climates). Caltrans then turned to two rulemaking analyses conducted by the federal Environmental Protection Agency (EPA): the “NOx SIP Call” of 1998, and the Clean Air Interstate Rule (CAIR) of 2005. In these two analyses, the EPA concluded that NOx emissions from sources in an upwind state “contribute significantly” to the nonattainment of the federal ozone standard in a downwind state if the maximum contribution is at least 2 parts per billion (ppb) or the average contribution is greater than one percent. In line with these conclusions, the EPA adopted regulations requiring NOx emission reductions. (See 63 Fed.Reg. 57355 (Oct. 27, 1998); 70 Fed.Reg. 25161 (May 12, 2005).)
Caltrans then translated the 2 ppb standard as a percentage contribution of the regional mobile source emissions budgets applicable here. That resulted in a level of significance of between 1.67 percent (2 ppb/120 ppb, with 2 ppb being the EPA’s standard of significance and 120 ppb being the federal Clean Air Act’s ambient air quality standard for ozone over a one-hour period), and 2.5 percent (2 ppb/80 ppb, with 80 ppb being the federal standard for ozone over an eight-hour period). From this, Caltrans established the threshold of significance at one percent of the regional mobile source emissions budgets to be conservative for greater protection (and, apparently, to align with the average contribution significance level established in the EPA analyses described above).
b. Analysis
We now turn to Voices’ three arguments against the one percent significance threshold. Voices claims this standard is (1) impossibly high; (2) improperly a ratio comparison; and (3) ignorant of state and local standards.
i. Impossibly high standard
First, Voices argues that one percent of the regional mobile source emissions budget is a standard that virtually no project in the region could ever exceed, “because that budget includes all existing as well as all planned projects in a six-county region.” (Italics in brief.) In support of this argument, Voices cites to a passage in the federal EPA’s 1998 “NOx SIP Call” rulemaking analysis stating, “indeed, it is rare for emissions from even the largest single sources to exceed one percent of the inventory of ozone precursors even for a single metropolitan area.” (63 Fed.Reg., supra, at p. 57375.) However, this quoted passage must be read in its context, which states as pertinent: “[U]nhealthful levels of ozone result from emissions of NOx . . . from thousands of stationary sources and millions of mobile sources (and consumer products and other sources) across a broad geographic area. Each source’s contribution is a small percentage of the overall problem; indeed, it is rare for emissions from even the largest single sources to exceed one percent of the inventory of ozone precursors even for a single metropolitan area. . . . [A]ttainment requires controls on numerous sources across a broad area. Ozone is a regional scale problem that requires regional scale reductions.” (Id. at pp. 57375-57376.)
Caltrans’ one percent significance threshold is reasonably based on a regional approach to ozone by being tied to a percentage of the regional mobile source emissions budgets. The source of Voices’ argument in this regard is its definition of “source,” and that poses a problem for Voices. Voices views the interchange as a single source of ozone precursors. As Voices emphasizes in its reply brief, Caltrans never confronts “the fact that the EPA identified the 1-percent threshold as an acceptable threshold, not for an individual source, but rather to measure the significance of the total of all precursor emissions generated by all sources within an entire state, when transported to another state.” (Italics in brief.) However, the interchange itself is not emitting NOx and ROG. Instead, it is the thousands--indeed millions over time--of vehicular mobile sources using the interchange to get to the hotel/casino that are doing so. It is this multitude of mobile sources over a broad geographic area that legitimizes Caltrans’ use of the federal EPA analyses to construct a standard of significance.
In related fashion, Voices also notes that the EPA rulemaking analyses irrelevantly involved ozone emissions between states in the eastern United States. Ozone emissions, however, do not respect state lines, and states as distinct in size as New York and Rhode Island were involved in these EPA analyses. The relevant context for ozone analysis and reduction is broad geographic areas, and Caltrans’ one percent standard is situated in that context. Furthermore, Caltrans “localized” the one percent standard to the applicable region here by applying it to the regional mobile source emissions budgets.
Voices’ broader point in its “impossibly high” argument is that regardless of how the term “sources” is defined, the interchange, in the end, is just one project, and one project’s ozone emissions are never going to reach Caltrans’ one percent threshold of significance given the vast region and large number of existing and planned transportation projects in the region. This is a reasonable argument.
However, this is where the directive from our first opinion--to compare the interchange with other projects within the regional transportation conformity analysis--comes into play. For that comparison, Caltrans selected an interchange project on Highway 50 near the site of the interchange/hotel-casino that will serve, initially, two shopping centers. This interchange project is known as the Missouri Flat project, and the EIR for the project evaluated the two shopping centers and a master circulation plan.
The ROG and NOx emissions for the Missouri Flat project were measured at .27 and .49 tons per day, respectively; the comparable figures for the interchange/hotel-casino project were .11 and .23 tons per day, respectively. The highest percentage of the regional mobile source emissions budget for the interchange/hotel-casino project was .37 percent (from a NOx measurement of .23 tons per day); the comparable figure for the Missouri Flat project was .79 percent (from a NOx measurement of .49 tons per day). Although the Missouri Flat project did not exceed the one percent threshold of significance that Caltrans adopted for the interchange/hotel-casino project, it came close. This supports the reasonability of the one percent figure, and certainly the reasonability of the “one-half of one percent” figure that Caltrans also cited in the SEIR when it noted that all of the interchange/hotel-casino project’s traffic-related ROG and NOx emissions--when compared to the applicable mobile source emissions budgets in percentage terms--“are less than one-half of one percent.” Moreover, while the Missouri Flat project’s EIR did conclude that the ROG and NOx emission impacts would be considered significant under the County Air Pollution Control Board (local) threshold levels, that EIR also concluded--admittedly in highly qualified terms that did not directly acknowledge the shopping center-generated traffic as to the interchange itself--that traffic-related emissions of that project were not significant because they did not exceed the regional mobile source emissions budgets. Finally, the Missouri Flat EIR appropriately evaluated the emissions from the three Missouri Flat components (the two shopping centers and one master circulation plan) in combined, rather than segregated, fashion; this is illustrated by the sum of the two shopping centers’ ROG emissions exceeding that of the third component at issue--the master circulation plan.
We conclude the one percent threshold of significance is supported by substantial evidence in the record and constitutes an adequate method by which to evaluate the significance of ROG and NOx emissions at issue here. (See Greenebaum v. City of Los Angeles (1984) 153 Cal.App.3d 391, 412; Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1377, 1381-1382.) Even assuming for the sake of argument that this threshold is set too high, the interchange/hotel-casino project’s maximum emissions (.37 percent) still meet the threshold as reduced by 60 percent, supporting Caltrans’ finding of insignificance.
ii. Ratio comparison
Voices’ second argument is related to its first. Relying principally on Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692 (Kings County), Voices claims that the one percent threshold of significance constitutes an improper “ratio”-type methodology that masks or trivializes the interchange project’s ozone impact on the environment. We disagree.
The court in Kings County found inadequate an EIR’s information and analysis regarding the significance of a project’s increases in ozone levels. (Kings County, supra, 221 Cal.App.3d at p. 718.) The EIR in Kings County concluded that the project’s contributions to ozone levels in its air basin would be “immeasurable” and therefore insignificant because the project--a cogeneration power plant--“would emit relatively minor amounts of [ozone] precursors compared to the total volume of precursors emitted” in the air basin. This “ratio”-type analysis improperly used the magnitude of the current ozone problem in the air basin to trivialize the project’s impact. (Kings County, supra, 221 Cal.App.3d at p. 718; see also Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1025; Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 118.) In other words, the Kings County EIR improperly reasoned that since the air was already bad, the project’s emissions, while making the air worse, would be insignificant. (Kings County, supra, 221 Cal.App.3d at p. 718 .)
Kings County concluded that the “relevant question to be addressed in the EIR is not the relative amount of precursors emitted by the project when compared with preexisting emissions, but whether any additional amount of precursor emissions should be considered significant in light of the serious nature of the ozone problems in this air basin.” (Kings County, supra, 221 Cal.App.3d at p. 718.)
The SEIR here does not fall victim to the inadequacies that bedeviled the EIR in Kings County. Unlike the Kings County EIR, the SEIR measured the interchange project’s contributions to ozone levels rather than deem them “immeasurable.” Unlike the Kings County EIR, the SEIR did not compare the project’s amount of ozone precursors to the preexisting ozone problem, but instead compared that amount to the preexisting ozone solution by tying the threshold of significance to the regional mobile source emissions budgets set forth in the SIPs (state implementation plans to achieve air quality). And therefore, unlike the Kings County EIR, the SEIR determined whether any additional amount of precursor emissions should be considered significant in light of the serious nature of the ozone problems in the region. The two federal EPA rulemaking analyses from which Caltrans derived the one percent threshold of significance--the NOx SIP Call and the CAIR--were prefaced by the admonition that “ozone is generally the result of emissions of NO[X] and VOC [volatile organic compounds] from hundreds of stationary sources and millions of vehicles, each of which is likely to be responsible for much less than 1 percent of the overall inventory of precursor emissions. A source or group of sources should not be exempted from treatment as a significant contributor merely because it may be a small part, in terms of total emissions, of the overall problem when all or most other contributors, individually, are also relatively small parts of the overall problem.” (62 Fed.Reg. 60335 (Nov. 7, 1997).) This quoted passage echoes the concerns raised in Kings County. And these concerns, we have concluded, were addressed in the SEIR.
Finally, the concerns just noted encompass the subject of cumulative impacts. On appeal, Voices raises this issue as well, contending the SEIR focused, through the prism of the one percent threshold of significance, on the interchange project’s individual impacts at the expense of the project’s cumulative impacts. We do not see it this way. In our first opinion, we directed Caltrans to focus on the interchange project’s individual impacts and how those impacts compared to the regional emissions budgets and other projects. As we have seen, Caltrans properly tied the one percent threshold of significance to the regional mobile source emissions budgets, which are cumulative in character. Furthermore, we concluded in our first opinion that the EIR’s regional transportation conformity approach adequately covered the issue of cumulative impacts. As we said in that opinion: “A regional transportation conformity approach based on an SIP may provide a sufficient analysis of cumulative impacts. This is because a cumulative impact analysis examines the incremental impact of a project when added to other closely related existing and reasonably foreseeable projects. ([Cal. Code Regs., tit. 14 (CEQA Guidelines),] § 15355, subd. (b); [] § 21083, subd. (b)(2).) And a lead agency may determine that a project’s cumulative impact is insignificant if the project will comply with a previously approved plan that is specifically designed to reduce the cumulative problem within the geographic area in which the project is located (such as an air quality plan; here, the SIP). (CEQA Guidelines, § 15064, subd. (h)(3).) (This dispenses with [the] contention that the transportation conformity determination failed to analyze properly the cumulative impacts of the interchange operation regarding the ozone precursors.)”
The CEQA Guidelines are found in title 14 of the California Code of Regulations at section 15000 et seq.
We conclude that the SEIR’s one percent threshold of significance does not apply an improper ratio-type methodology that trivializes or masks the impact of the ozone precursors at issue.
iii. State and local ozone standards
That brings us to Voices’ third contention involving the one percent threshold of significance: the SEIR’s failure to use state or local ozone standards.
The short answer to this contention is as follows. State or local ozone standards were not used because the analytical method the SEIR employed, a method we have concluded was adequate, was derived from the federal EPA’s two rulemaking analyses--the NOx SIP Call and the CAIR--that were based on federal ozone standards that were incorporated in SIPs (state implementation plans to achieve those standards).
Furthermore, as for the state ozone standard, we concluded in our first opinion that Voices failed to exhaust its administrative remedy on the issue of the EIR not applying state ozone standards by failing to raise this issue in the original proceedings. Under section 21168.9, a trial court’s writ of mandate issued for CEQA noncompliance pursuant to an appellate court remand, as is the case here, “shall include only those mandates which are necessary to achieve compliance with [CEQA] and only those specific project activities in noncompliance with [CEQA].” (Id., subd. (b).) In any event, the SEIR’s analysis of the ozone impact, in linear terms, met the more stringent California one-hour standard for ozone of .09 parts per million (ppm) or 90 ppb. This California standard is 75 percent of the one-hour federal standard for ozone of .12 ppm (120 ppb). Using a linear approach, this produces a .75 percent threshold of significance standard (75 percent of the one percent standard used here). As we have seen, the SEIR measured the maximum ozone precursor emissions for the interchange project at .37 percent, just under one-half of this .75 percent level of significance.
Pressing the issue of California’s ozone standards, Voices also maintains that the SEIR did not conduct the air quality analysis required by CEQA Guidelines, Appendix G, Sample Questions, section III. That guideline asks whether a project will “[c]onflict with or obstruct implementation of the applicable air quality plan,” “[v]iolate any air quality standard or contribute substantially to an existing or projected air quality violation,” or “[r]esult in a cumulatively considerable net increase of any criteria pollutant for which the project region is nonattainment” under California’s ambient air quality standards, including ozone. For the reasons just stated and those we set forth in upholding the adequacy of the one percent threshold of significance, we do not find the SEIR insufficient in this respect.
As for the County’s local ozone standards (AQMD [Air Quality Management District] thresholds), our first opinion stated only that these standards could be considered on remand if deemed appropriate. We have found the SEIR’s approach and analysis regarding the ozone precursors ROG and NOx adequate and supported by substantial evidence.
3. Alternatives
In our first opinion, we rejected Caltrans’ claim that the EIR did not even have to consider the alternative of a smaller hotel-casino: Caltrans simply stated it could not legally prevent the Tribe from developing a hotel and casino (the EA that the EIR incorporated had not considered such an alternative either). We hastened to point out to Caltrans the “simple fact that the development of the hotel and casino is effectively foreclosed without the direct access provided by the interchange.” We observed: “As the court in City of Antioch v. City Council (1986) 187 Cal.App.3d 1325 noted in a related context, construction of a road and sewer project on undeveloped land ‘cannot be considered in isolation from the development it presages.’ (Id. at p. 1336.)” And, citing legal precedent, we concluded: “[A]lternatives may not be rejected for consideration ‘merely because’ they are beyond an agency’s authority.” (Italics added in opinion; see, e.g., Citizens of Goleta Valley, supra, 52 Cal.3d at p. 575, fn. 7.)
An EIR must consider a reasonable range of alternatives that (1) meet most of the project’s basic objectives; (2) are potentially feasible; and (3) would avoid or substantially lessen one or more of the project’s significant environmental effects. (Citizens of Goleta Valley, supra, 52 Cal.3d at p. 566; Laurel Heights, supra, 47 Cal.3d at p. 400; CEQA Guidelines, § 15126.6, subd. (a); Bass et al., CEQA Deskbook (2d ed. 1999) p. 109.) “‘Feasible’ means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors.” (CEQA Guidelines, § 15364; Pub. Resources Code, § 21061.1.)
Here, the SEIR discussed two smaller project alternatives. The first, Alternative D, consisted of a 120,000 square-foot gaming facility (reduced from 238,500 square feet) and a 200-room, 120,000 square-foot hotel (reduced from 250 rooms, 142,750 square feet). The second, Alternative E, consisted simply of the reduced 120,000 square-foot gaming facility, with no hotel.
The SEIR’s discussion of these two alternatives comprised four parts: (1) a description of each alternative, including a square footage breakdown of proposed uses within the reduced casino or hotel and a discussion of its height, development standards, wastewater treatment, water delivery and interchange access; (2) a discussion of the alternatives’ impacts and mitigation measures, covering land use, zoning, geology and soils, transportation and circulation, air quality, noise and vibration, biological resources, visual resources, socioeconomics, cultural resources, hazardous materials, water quality, and drainage; (3) an impact comparison table (matrix) of the alternatives (including the no project alternative), covering geology and soils, traffic, air quality, noise, and biological resources; and (4) a supplemental traffic review of the two alternatives’ specific traffic impacts.
Caltrans ultimately rejected Alternatives D and E, finding them legally and economically infeasible.
“The EIR shall include sufficient information about each alternative to allow meaningful evaluation, analysis, and comparison with the proposed project.” (CEQA Guidelines, § 15126.6, subd. (d).) “Even though [an] agency ultimately finds mitigation measures adequate or proposed alternatives infeasible, the EIR must still contain a meaningful discussion of both alternatives and mitigation measures.” (Kings County, supra, 221 Cal.App.3d at p. 731, citing Laurel Heights, supra, 47 Cal.3d at pp. 403-404.)
Voices claims the SEIR’s discussion of alternatives was insufficient in two respects: first, it did not satisfy this “meaningful” standard; and second, the findings of legal and economic infeasibility were not based on substantial evidence.
We reject Voices’ first claim. The SEIR’s four-part discussion of two smaller alternatives, described above, provided a meaningful discussion. Voices argues that the discussion lacked quantitative detail, and encompassed only one sentence of text in its chapter on “Comparison of Alternatives.” The SEIR quantified subjects that lent themselves to numbers (e.g., wastewater treatment, water delivery, traffic impacts), and discussed qualitatively those that did not (e.g., visual resources, cultural resources). Voices argues disingenuously that the SEIR chapter on alternative comparisons comprised only one sentence of text. That chapter presented its information in the form of an “Impact Comparison Table.” (Italics added.) “A matrix displaying the major characteristics and significant environmental effects of each alternative may be used to summarize the comparison.” (CEQA Guidelines, § 15126.6, subd. (d).) Furthermore, the interchange is a single lane in each direction regardless of the size chosen for the hotel and casino. And the environmental impacts of the original hotel-casino, as mitigated, were found to be less than significant. Consequently, the repetitive conclusion in the SEIR that the environmental impacts of the smaller hotel-casino alternatives are less than significant is reasonable.
That brings us to Voices’ second point, alleging that insufficient evidence supports Caltrans’ SEIR findings that the two smaller hotel-casino alternatives are legally and economically infeasible. We disagree with this point as well.
In its legal findings, Caltrans sets forth provisions of federal and California law that foreclose Caltrans from exercising any legal authority over proposed development on sovereign tribal lands. Caltrans is on solid legal ground in this respect.
As for economic infeasibility, Caltrans found: “[S]pecific economic considerations also make Alternatives D and E infeasible. The objective of the Interchange Project is to allow the Tribe access to its Rancheria so that it can construct a new hotel and gaming facility to fulfill and fully benefit from the terms of its Tribal-State Compact. 2002 EIR at [s]ection 3.1.2. That compact allows a level of gaming that is served only by the proposed casino. That casino demands a certain level of ancillary facilities, including the proposed hotel, and both the casino and hotel provide a revenue base to fund the construction of the Interchange. A smaller hotel and casino would not meet this primary project objective. Therefore, both of these alternatives are infeasible for this reason.”
An alternative “cannot be deemed [economically] infeasible absent evidence the additional costs or lost profits are so severe the project would become impractical.” (Kings County, supra, 221 Cal.App.3d at p. 736; Citizens of Goleta Valley v. Board of Supervisors (1988) 197 Cal.App.3d 1167, 1181.) The SEIR’s finding of economic infeasibility is not based on evidence along these lines.
However, the two smaller alternatives present a more basic problem. Recall that an EIR must consider a reasonable range of alternatives that (1) meet most of the project’s basic objectives; (2) are potentially feasible; and (3) would avoid or substantially lessen one or more of the project’s significant environmental effects. The two smaller alternatives do not meet the project’s basic objectives. As Caltrans stated in the findings, the “objective of the Interchange Project is to allow the Tribe access to its Rancheria so that it can construct a new hotel and gaming facility to fulfill and fully benefit from the terms of its Tribal-State Compact.” (Italics added.) And as we stated in our first opinion: “In 2000, California voters approved a change to the state Constitution that granted groups of Native Americans such as the Tribe a monopoly to operate and financially benefit from Nevada-style casino gaming in the state. (Cal. Const., art IV, § 19, subd. (f).) [¶] Seeking to fully realize the benefits of its constitutional prerogative, the Tribe has proposed the construction of a casino and hotel complex and adjacent parking structure on its Rancheria, and a freeway interchange on nontribal property connecting the Rancheria directly to Highway 50.” (Italics added.) The Tribal-State Compact allows the Tribe to have up to 2,000 gaming machines. This objective cannot be met with the significantly reduced casino sizes envisioned in the two smaller alternatives.
Furthermore, there is case law stating that an agency does not have “to make any findings regarding the feasibility of proposed alternatives,” if described mitigation measures (as here) will reduce environmental impacts to less than significant levels. (Mira Mar Mobile Community v. City of Oceanside (2004) 119 Cal.App.4th 477, 490; Rio Vista Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 379.) Here, the EA, which the original EIR had incorporated, imposed mitigation measures on the hotel and casino project covering soil erosion, water resources, air quality, biological resources, noise and visual resources. In light of these measures, the hotel and casino project was found to have no significant impact.
We conclude that the SEIR’s evaluation of a smaller hotel/casino alternative is supported by substantial evidence and is adequate as an information document.
4. Procedural Challenges
Voices raises four procedural challenges. We reject each in turn.
First, Voices asserts that the SEIR failed to comply with the 45-day circulation period for public comment because Caltrans initially failed to post the SEIR’s Appendix B (Supplemental Traffic Review) on its website.
Copies of the complete SEIR, including Appendix B, were available for the 45-day period, as prescribed by CEQA, in a local Caltrans office and a public library. (CEQA Guidelines, § 15087, subd. (g).) There is no legal requirement to post an EIR on a website. And this case is distinguishable from Ultramar, Inc. v. South Coast Air Quality Management Dist. (1993) 17 Cal.App.4th 689, upon which Voices relies. In Ultramar, the court found that an agency violated the public comment period by mailing to persons, who had designated their interest, a copy of a draft environmental assessment (EA) that omitted the section discussing cumulative impacts (although the agency was not required to do the mailing). (Id. at pp. 697, 700.) As Ultramar reasoned: “Recipients of the draft EA would naturally assume that they were being sent a complete copy. Relying on that assumption, they would have no reason to examine the draft EA at [the agency’s] office.” (Id. at p. 700.) By contrast, website viewers here would not have made this assumption. This is because the SEIR, as initially posted online, referenced “Appendix B” in its Table of Contents (“Supplemental Traffic Review”) and stated in its section on Transportation/Circulation that the “supplemental traffic analysis prepared for Alternative D and Alternative E (Appendix B) concluded that both alternatives would generate fewer trips than the proposed hotel/casino project.” (Original emphasis.)
Second, Voices maintains that Caltrans failed to respond adequately to public comments.
The challenged responses from Caltrans were that analyses of the state ozone standard and of cumulative impacts on air quality were beyond the scope of the SEIR. As explained previously in part 2 of this opinion, Caltrans is correct.
Third, Voices contends that Caltrans violated section 21104 by failing to consult with and obtain comments from the State Air Resources Board regarding the SEIR. (§ 21104, subd. (b).)
Section 21104, subdivision (b), provides: “The state lead agency shall consult with, and obtain comments from, the State Air Resources Board [SARB] in preparing an environmental impact report on a highway or freeway project, as to the air pollution impact of the potential vehicular use of the highway or freeway.” CEQA Guidelines section 15086 has interpreted this statute to mean that the lead agency “shall consult with and request comments on the draft EIR from” SARB. (Id., subd. (a)(6).) Pursuant to CEQA Guidelines section 15023, subdivision (c), the “State Clearinghouse in the Office of Planning and Research shall be responsible for distributing environmental documents [including draft EIRs by state lead agencies] to State agencies, departments, boards, and commissions for review and comment.” (See also CEQA Guidelines, § 15205, subd. (b)(1).) Here, Caltrans submitted the draft SEIR to the State Clearinghouse for distribution to SARB, which was done. SARB did not comment. Under CEQA Guidelines section 15207, if “any public agency or person who is consulted with regard to an EIR . . . fails to comment within a reasonable time as specified by the lead agency, it shall be assumed, absent a request for a specific extension of time, that such agency or person has no comment to make.” Consequently, Caltrans satisfied the law regarding review and comment from SARB.
And fourth and finally, Voices argues that Caltrans, as the lead agency for the interchange project, failed to consult with the California Transportation Commission (the CTC) concerning the SEIR, even though the CTC was a responsible agency on that project. We find any failure in this regard harmless.
A responsible agency under CEQA has an expertise or an approval power over some aspect of the overall project. (§§ 21067, 21069, 21002.1, subd. (d), 21104, subd. (c).)
Prior to completing an EIR, a state lead agency shall consult with and request comments from each responsible agency. (Pub. Resources Code, § 21104, subd. (a); CEQA Guidelines, § 15086, subd. (a)(1).) And a responsible agency shall “respond to consultation by the lead agency in order to assist the lead agency in preparing adequate environmental documents for the project.” (CEQA Guidelines, § 15096, subd. (b).) “A responsible agency . . . shall only make substantive comments regarding those activities involved in a project that are within an area of expertise of the agency or that are required to be carried out or approved by the agency.” (§ 21104, subd. (c).)
In its opposition to Caltrans’ further return to writ of mandate, Voices states that “Caltrans, as the lead agency, had a duty to consult with the CTC so that the CTC could ‘assist the lead agency in preparing adequate environmental documents for the project.’ [Quoting CEQA Guidelines, § 15096, subd. (b).] . . . Because the EIR on which the 2002 [CTC-approved] [Highway 50] break-in access [i.e., the interchange] relied was adjudged invalid, Caltrans should have consulted with the CTC to obtain an updated break-in access based on the revisions provided in the SEIR.”
The record is clear, and the parties agree, that Caltrans did not seek consultation with the CTC here. Caltrans did not prejudicially err in this regard, however, because the CTC could not have made any “substantive comments” regarding the SEIR. (§ 21104, subd. (c).)
As for its area of expertise with respect to highways, the CTC is essentially responsible for the programming and allocating of funds for the construction of highway improvements. In other words, the CTC is responsible for the planning and continuity of fiscal policy in the construction and improvement of the state highway system. (See e.g., Sts. & Hy. Code, § 70.2; Gov. Code, §§ 14500, 14520-14522, 14524, 14525, 14529, 14529.01, 14529.1, 14533.) In its brief in the concurrent third appeal in this matter (C054597), CTC describes its “area of responsibility and expertise” as having “to do with the transportation or movement of people and goods, and with the capacity of the highway system to accommodate that movement.”
As for its approval authority here, the CTC must approve public road connections to freeways. As set forth in Streets and Highways Code section 100.2: “. . . No city street, county road, or other public highway of any kind shall be opened into or connected with any freeway unless and until the [CTC] adopts a resolution consenting thereto and fixing the terms and conditions on which such connection shall be made and the [CTC] may give or withhold its consent or fix such terms and conditions as, in its opinion, will best subserve the public interest.”
The CTC’s area of expertise and its approval authority, then, as a matter of law, do not include specific analyses of air quality impacts arising from vehicular use of highways.
However, the CTC arguably has expertise and approval authority in evaluating the alternative of a smaller hotel-casino given its expertise over highway capacities and its approval authority over highway connections. But, again, the CTC would not have been able to provide substantive comments for the following reasons. The CTC approved the interchange’s break-in access to Highway 50 based on the much larger, originally proposed hotel/casino that will produce nearly twice as much traffic for the interchange as the smaller hotel/casino alternatives considered in the SEIR. The interchange itself is a single lane in each direction and cannot be made any smaller. And we have seen that the smaller alternatives do not meet the project’s basic objectives.
We reject Voices’ procedural challenges.
We deny the July 2007 requests for judicial notice filed by Caltrans and the Tribe and Lakes Entertainment.
Disposition
The judgment is affirmed.
We concur: SIMS, Acting P.J., MORRISON, J.