Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Super. Ct. No. 07CC01327, Thierry Patrick Colaw, Judge.
Kirkland & Ellis, Robyn E. Bladow, Pantea M. Yashar; and John C. Eastman for Plaintiff and Appellant.
Robert E. Shannon, City Attorney, Michael Mais, Assistant City Attorney; Rutan & Tucker, Robert S. Bower and M. Katherine Jenson for Defendants and Respondents and Real Party in Interest City of Long Beach, Airport Bureau.
No appearance for Real Party in Interest JetBlue Airways Corporation.
OPINION
RYLAARSDAM, ACTING P. J.
Plaintiff Long Beach Council of Parents and Teachers, Inc. appeals from a judgment denying its petition for a writ of mandate challenging the decision by defendants City of Long Beach (City) and its city council, and planning commission certifying, under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq., all further statutory references are to this code unless otherwise indicated), an environmental impact report (EIR) authorizing improvements to the terminal at the city’s municipal airport. Plaintiff argues the EIR is inadequate because defendants failed to analyze the project’s growth-induced impacts and did not consider a reasonable range of alternatives. Since these claims lack merit, we affirm the judgment.
FACTS AND PROCEDURAL BACKGROUND
City, through its subdivision, real party in interest Airport Bureau, owns and operates a municipal airport. The airport, first established in 1923, includes a terminal building constructed in 1941. In the 1980’s, defendants added a new concourse and boarding lounge to the original terminal. At that time, the airport was serving between 500,000 and 1 million passengers annually. The noise control ordinance then in effect limited commercial flights to 15 per day.
Commercial air carriers sued city in federal court challenging the ordinance. In the mid-1980’s, the city council enacted another noise control ordinance increasing the number of permissible flights to 32 per day, certifying an EIR in conjunction with the new ordinance. The district court found this limitation too restrictive and ordered city to increase the commercial air carrier flights (aircraft with a takeoff weight of 75,000 pounds or more) to 41 per day. The district court’s ruling was affirmed on appeal in 1992, but only on procedural grounds.
In 1995, city reached a settlement with the air carriers whereby it issued a negative declaration and the city council enacted a new noise ordinance that permits 41 daily air carrier flights and 25 commuter flights (aircraft with a maximum takeoff weight under 75,000 pounds). The ordinance also allows for an increase of up to 11 additional daily commercial flights if the air carriers implement what is described as the Optimized Flights Scenario, which requires the use of quieter aircraft and reduced late night operations. To date, no airline has achieved these conditions and the 41/25 daily flight limits remain in effect.
By 2003, the airport was handling nearly 3 million annual passengers, primarily due to airlines filling the 41 commercial air carrier slots. When the 25 commuter flight slots are filled, it is estimated the airport will handle approximately 4.2 million annual passengers.
City began the process of evaluating improvements to the airport’s terminal building to accommodate the increased level of use, issuing a notice of preparation for an EIR. After city’s Airport Advisory Commission conducted several public meetings on the project and submitted recommendations to the city council, a second notice of preparation was issued in 2005.
In November 2005, city’s Planning and Building Department issued and circulated a draft EIR that analyzed the impacts of constructing an addition to the current terminal building. The project studied called for expanding the terminal building from 56,320 square feet to nearly 103,000 square feet, providing additional space for ticketing facilities, concessions, passenger security screening and holding, baggage claim and security, with 11 aircraft gates and up to 14 aircraft parking positions. It also studied improvements to and expansion of the airport’s parking facilities. The draft EIR identified the project’s objectives as the development of a facility containing sufficient space for the passengers to be served by the minimum number of flights allowed under the noise ordinance, as well as the airport’s visitors and tenants, while also creating an operationally and energy-efficient design that would maintain and enhance the architectural and aesthetic character of the historic 1941 terminal building, that could be developed in incremental stages.
The potential environmental effects considered in the draft EIR included the project’s growth inducing impacts. The report concluded the proposed improvements would have either a beneficial impact, no impact, or a less than significant impact on all of the aspects studied except air quality, which it acknowledged would suffer adverse “short-term construction-related air quality impact.”
At the city council’s direction, the draft EIR also addressed the potential impacts associated with an increase of flights under the Optimized Flights Scenario. The report identified the additional impacts associated with this scenario and concluded that, with the implementation of specified mitigation measures, all impacts except air quality could be reduced to a level of less than significant.
Finally, the draft EIR studied three alternative projects: (1) Alternative A – a 97,500 square foot terminal; (2) Alternative B – an approximately 80,000 square foot terminal; and (3) Alternative C – the no project alternative. It also identified a fourth alternative, a roll-back to the original 1941 structure plus the permanent addition built in 1984, but declined to study it because this alternative “would not effectively meet the project objectives.”
After circulating copies of the draft EIR, holding a series of public meetings on it, and receiving over 200 written comments, to which written responses were prepared, a final EIR was prepared. City’s planning commission and city council also held further hearings on the project. On June 20, 2006, the city council adopted a mitigation monitoring program, a statement of overriding considerations for the impacts that could not be reduced to a level of less than significant, and, while certifying the final EIR, approved a site plan for a 97,545 terminal improvement project with a maximum of 12 aircraft parking positions and construction of a 4,000 space parking structure.
In an effort to resolve concerns raised by plaintiff and the Long Beach Unified School District, city waived CEQA’s statute of limitations while negotiations over certification of the airport terminal improvement project proceeded. The negotiations eventually failed and both plaintiff and the school district filed writ petitions challenging city’s decision. The actions were consolidated and transferred to the Orange County Superior Court. After a hearing, the trial court denied both petitions, and entered judgment in favor of defendants and real parties in interest. Plaintiff appealed the decision.
DISCUSSION
1. Background
“[T]o ‘[e]nsure that the long-term protection of the environment... shall be the guiding criterion in public decisions’ [citation], CEQA and its implementing administrative regulations [citation] 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.... [¶] The second tier concerns exemptions from CEQA review,” but “[i]f a project does not fall within an exemption, the agency must ‘conduct an initial study to determine if the project may have a significant effect on the environment.’ [Citations.]... [¶] CEQA’s third tier applies if the agency determines substantial evidence exists that an aspect of the project may cause a significant effect on the environment. In that event, the agency must ensure that a full environmental impact report is prepared on the proposed project. [Citations.]” (Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 379-381, fn. omitted.)
Here, defendants prepared and certified an EIR for the airport terminal improvement project. “Where an EIR is challenged as being legally inadequate, a court presumes a public agency’s decision to certify the EIR is correct, thereby imposing on a party challenging it the burden of establishing otherwise. [Citations.] To establish noncompliance by the public agency in a CEQA proceeding, an opponent must show ‘there was a prejudicial abuse of discretion’ (§ 21168.5), which occurs when either ‘the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.’ [Citations.]” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 530.) “An appellate court’s review of the administrative record for legal error and substantial evidence in a CEQA case... is the same as the trial court’s: the appellate court reviews the agency’s action.... We therefore resolve the substantive CEQA issues... by independently determining whether the administrative record demonstrates any legal error by the [agency] and whether it contains substantial evidence to support the [agency’s] factual determinations.” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 427; see also Sierra Club v. City of Orange, supra, 163 Cal.App.4th at p. 531.)
“[W]hile we determine de novo whether the agency has employed the correct procedures, ‘scrupulously enforc[ing] all legislatively mandated CEQA requirements’ [citation], we accord greater deference to the agency’s substantive factual conclusions. In reviewing for substantial evidence, the reviewing court ‘may not set aside an agency’s approval of an EIR on the ground that an opposite conclusion would have been equally or more reasonable,’ for, on factual questions, our task ‘is not to weigh conflicting evidence and determine who has the better argument.’ [Citation.]” (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, supra, 40 Cal.4th at p. 435.)
2. The Project’s Growth Induced Impacts
Plaintiff contends the EIR defendants prepared failed to study what it describes as “the growth-induced impacts on the neighborhoods surrounding the Airport....” Consequently, it asserts, the EIR “is tantamount to a negative declaration with respect to those impacts,” which must be reviewed under the “[f]air [a]rgument” standard. This rule requires preparation of an EIR “whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact.” [Citation.] If there is substantial evidence of such impact, contrary evidence is not adequate to support a decision to dispense with an EIR. [Citations.]” (Moss v. County of Humboldt (2008) 162 Cal.App.4th 1041, 1049.)
There are several problems with this argument. First, the “fair argument” test applies “when a project is first reviewed” to “[d]etermin[e]... whether an EIR is required....” (Moss v. County of Humboldt, supra, 162 Cal.App.4th at p. 1049.) Here, defendants did prepare an EIR for the airport terminal improvement project. Thus, by its very terms, the “fair argument” test is inapplicable, and the focus in this case is on the adequacy of the EIR prepared and certified by defendants.
Second, the EIR at issue does consider the “growth-inducing impacts” of the project as CEQA defines that phrase. CEQA’s Guidelines state “‘Growth-Inducing Impact[s]’” mean “ways in which the proposed project could foster economic or population growth, or the construction of additional housing, either directly or indirectly, in the surrounding environment. Included in this are projects which would remove obstacles to population growth (a major expansion of a waste water treatment plant might, for example, allow for more construction in service areas). Increases in the population may tax existing community service facilities, requiring construction of new facilities that could cause significant environmental effects.... [T]he characteristic[s] of some projects... may encourage and facilitate other activities that could significantly affect the environment, either individually or cumulatively.” (Cal. Code Regs., tit 14, § 15126.2, subd. (d).)
Section 5.2 of the draft EIR contains a discussion of the growth-inducing impacts under CEQA. It separately considers the airport terminal project’s effect on 1) undeveloped land both at the airport and in the area surrounding it, 2) the potential to remove constraints on the development of other approved projects, 3) influence on facilitating redevelopment at a higher intensity, and 4) the potential to foster growth at the airport itself. Plaintiff makes no attempt to challenge the adequacy of the EIR’s analysis on this impact.
Third, a close reading of plaintiff’s opening brief reflects its use of the phrase “growth-induced impacts” refers to the potential that the proposed terminal expansion will trigger an increase in daily flight operations at the airport beyond that allowed under city’s current noise ordinance. In Laurel Heights Improvement Assn. v. Regents of University of California (1988) 47 Cal.3d 376, the Supreme Court declared “an EIR must include an analysis of the environmental effects of future expansion or other action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future expansion or action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects. Absent these two circumstances, the future expansion need not be considered in the EIR for the proposed project. Of course, if the future action is not considered at that time, it will have to be discussed in a subsequent EIR before the future action can be approved under CEQA.” (Id. at p. 396.)
Laurel Heights also discussed “what circumstances require consideration in an EIR of future action related to the proposed project.” (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 395.) “A basic tenet of CEQA is that an environmental analysis ‘should be prepared as early as feasible in the planning process to enable environmental considerations to influence project program and design and yet late enough to provide meaningful information for environmental assessment.’ [Citations.]... We agree that environmental resources and the public fisc may be ill served if the environmental review is too early. On the other hand, the later the environmental review process begins, the more bureaucratic and financial momentum there is behind a proposed project, thus providing a strong incentive to ignore environmental concerns that could be dealt with more easily at an early stage of the project.” (Ibid.)
Under this approach, plaintiff’s assertion the EIR fails to consider the growth-inducing impacts of the airport terminal building’s expansion lacks merit. Plaintiff cites the fact the project will “more than double the size of the existing permanent airport facilities” and “increase the number of [both] airline gates... and... airline parking pads,” and contends this will lead to “increases in commercial and commuter flights and passenger traffic at the airport....”
What plaintiff’s argument misses is that the increase in the airport terminal’s size, including the added gates and aircraft parking spaces, is intended to alleviate the currently overcrowded conditions resulting from the increased flight activity permitted under the city’s existing noise ordinance. The EIR found the present terminal facilities, designed to accommodate 500,000 annual passengers, is serving 3 million passengers each year and, when all of the remaining flights slots are filled, the annual number of passengers using the airport will increase to 4.2 million. The improvements address this current and reasonably foreseeable future use of the airport.
Furthermore, the EIR does address the concern expressed by members of the community that the proposed improvements to the airport terminal will increase pressure to have the airport assume a greater amount of the region’s air passenger traffic demand and thereby lead to an increase in flight activity. The report notes the federal Airport Noise and Capacity Act of 1990 (49 U.S.C. § 47521 et seq.) had “‘grandfather[ed]’” in city’s noise ordinance, no party had expressed support for modifying or revoking the current ordinance and, if the city council chose to do so at some point in the future, CEQA compliance would be required to address the impacts associated with any change to the ordinance.
Plaintiff cites a recent study by the Southern California Association of Governments projecting an increase in airline passenger traffic in the Southern California region over the next 20 years. But the study’s projections are based on regional demographic factors, not city’s contemplated improvements to the airport terminal. Thus, contrary to plaintiff’s assertion, it is the constraints imposed by city’s noise ordinance, not the size of the terminal that currently limits the number of daily flights.
Plaintiff also attacks what it refers to as the failure to study “the well-documented trade-off between noise and air pollution” that could result from the air carriers’ use of the potential 11 additional flights allowed to under the Optimized Flights Scenario. Initially, we note this complaint amounts to little more than a belated attack on the long final environmental decisions of the 1980s and 1990s.
In addition, the EIR does address the potential implementation of the Optimized Flights Scenario on both of these impacts. As for the noise caused by additional flights, while recognizing “[t]hese impacts are not project related,” the EIR recommended adoption of a mitigation program to provide sound insulation to residential units and schools within certain flight path noise contours. The city council’s resolution certifying the EIR included this recommendation. The EIR also acknowledged the adverse impact on air quality that could result from the additional flight activity and, while recommending mitigation measures, recognized some emissions would remain significant even after implementing these measures. In addition, air carriers are currently entitled to utilize the additional 11 flights if they employ quieter aircraft and alter nighttime operations at the airport, and construction of the airport terminal improvements will neither encourage nor deter their decision to take advantage of this option.
Plaintiff complains that due to the increase in passenger gates and aircraft parking pads “more commercial flight operations can be shifted to peak hours,” thereby increasing the noise levels during that period. But the evidence in the administrative record reflects the scheduling of flights is governed by market forces and the airlines’ need to coordinate flight arrivals and departures with other airports, not the mere availability of a gate or parking pad.
Finally, citing Muzzy Ranch Co. v. Solano County Airport Land Use Com., supra, 41 Cal.4th 372, plaintiff argues the mere existence of the city’s noise ordinance does not exempt it from complying with CEQA. That is true. But Muzzy Ranch involved an agency’s failure to prepare an EIR. As noted above, defendants did prepare an EIR in this case. The mere fact the ordinance can be amended or repealed does not mean it is foreseeable either eventuality will occur. Given the difficulties city encountered in enacting the current noise ordinance and in completing the environmental review for the airport terminal’s expansion, it is unlikely the city council will alter the ordinance any time soon. Furthermore, the possibility that the Federal Aviation Administration or other government agency will mandate an increase in flights is speculative, at best.
We conclude the EIR certified by city properly analyzes the reasonably foreseeable growth-inducing impacts of the airport terminal improvement project.
3. The EIR’s Alternative Analysis
Again, citing what it describes as growth-induced impacts, plaintiff contends the EIR fails to consider a reasonable range of potentially feasible alternatives. In response, defendants note the selection of alternatives is governed by the project’s objectives, in this case making improvements to the airport’s terminal building to accommodate the flight activity currently allowed under city’s noise ordinance. Furthermore, they argue alternatives must be evaluated as a whole.
CEQA’s Guidelines require an EIR to “evaluate the comparative merits” of “a reasonable range of potentially feasible alternatives” that would “attain most of the basic objectives of the project but would avoid or substantially lessen any of [its] significant effects....” (Cal. Code Regs., tit. 14, § 15126.6, subd. (a); see also Sierra Club v. City of Orange, supra, 163 Cal.App.4th at pp. 545-546.) “In reviewing an EIR’s consideration of project alternatives, courts employ ‘“a rule of reason.” [Citations.]’ [Citations.] ‘CEQA establishes no categorical legal imperative as to the scope of alternatives to be analyzed in an EIR,’ and ‘[e]ach case must be evaluated on its facts, which in turn must be reviewed in light of the statutory purpose. [Citation.]” (Id. at p. 546.) Thus, “‘[a]n EIR need not consider every conceivable alternative to a project,” but merely “a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation.’” (Ibid.)
The EIR satisfies these requirements. As noted, the alternatives considered must attain at least most of the objectives of the proposed project, while avoiding or significantly limiting its adverse environmental effects. Here, the EIR evaluated the environmental impacts of expanding the airport’s terminal building to accommodate the currently authorized flight activity. Each of the alternatives considered the strengths and weaknesses of a more limited terminal expansion project. Plaintiff’s reliance on its growth-induced impacts objections to the project are unavailing in this context for the same reasons discussed above.
Plaintiff’s argument primarily focuses on two aspects of the project. One is the failure to consider a reduction in the number of aircraft parking pads. The second involves the project’s proposal to move some of the general aviation airplane parking spaces, currently adjacent to the terminal building, to a portion of the airport’s property designated as Parcel O. This approach is factually erroneous and legally misguided. Contrary to plaintiff, the EIR does not contain an admission the airport’s current number of aircraft parking pads is adequate to accommodate the number of flights permitted under the noise ordinance, and its further assertion that residences are located within 275 feet of the construction and improvements on Parcel O simply misstates the record.
Furthermore, “[t]he pertinent statute and EIR guidelines require that an EIR describe alternatives to the proposed project. [Citation.] We interpret such requirement as applicable only to the project as a whole, not to the various facets thereof....” (Big Rock Mesas Property Owners Assn. v. Board of Supervisors (1977) 73 Cal.App.3d 218, 227, fn. omitted.) Focusing on an EIR’s failure to analyze variations on certain aspects of a project is unavailing in this context. Thus, the EIR contains an adequate comparative analysis of a reasonable range of potentially feasible alternatives.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
WE CONCUR: ARONSON, J., IKOLA, J.