Berkeley Keep Jets over v. Port Com'Rs

• Decision Date: 30 August 2001
• Docket Number: Nos. A086708, A087959, A089660.,s. A086708, A087959, A089660.
• Citation: 91 Cal.App.4th 1344,111 Cal.Rptr.2d 598
• Court: California Court of Appeals Court of Appeals
• Parties: BERKELEY KEEP JETS OVER THE BAY COMMITTEE, Petitioner and Appellant, v. BOARD OF PORT COMMISSIONERS of the City of Oakland, Defendant and Appellant. City of San Leandro et al., Plaintiffs, v. Board of Port Commissioners of the City of Oakland, Defendant. City of Alameda et al., Plaintiffs and Appellants, v. Board of Port Commissioners of the City of Oakland, Defendant and Appellant.

111 Cal.Rptr.2d 598

91 Cal.App.4th 1344

BERKELEY KEEP JETS OVER THE BAY COMMITTEE, Petitioner and Appellant, v. BOARD OF PORT COMMISSIONERS of the City of Oakland, Defendant and Appellant.

City of San Leandro et al., Plaintiffs, v. Board of Port Commissioners of the City of Oakland, Defendant.

City of Alameda et al., Plaintiffs and Appellants, v. Board of Port Commissioners of the City of Oakland, Defendant and Appellant.

Nos. A086708, A087959, A089660.

Court of Appeal, First District, Division 2.

August 30, 2001.

Certified for Partial Publication.^*

As Modified on Denial of Rehearing September 26, 2001.

Review Denied November 20, 2001.

John R. Shordike, Berkeley, Shute, Mihaly & Weinberger, E. Clement Shute, Jr., San Francisco, for Petitioner and Appellant.

Carol A. Korade, City Attorney, David Brandt, Deputy City Attorney, McDermott, Will & Emery, Steven F. Pflaum, for Plaintiffs and Appellants.

Steven R. Meyers, City Atty., Meyers, Nave, Riback, Silver & Wilson, Andrea J. Sultzman, Rick W. Jarvis and Amrit S. Kulkari, for Plaintiff City of San Leandro et al.

McCutchen, Doyle, Brown & Enersen, Stephen L. Kostka, Barbara J. Schussman,

Peter S. Hayes, Geoffrey L. Robinson, Walnut Creek, Brecher & Volker, Joseph J. Brecher, David L. Alexander, Oakland, for Defendant and Appellant.

RUVOLO, J.

I.

This appeal reviews the decision of the Board of Port Commissioners for the Port of Oakland (the Port Commissioners) for the City of Oakland to certify the environmental impact report (EIR) analyzing the environmental consequences of the proposed Airport Development Plan (ADP) for the Metropolitan Oakland International Airport (the Airport). The ADP is a multi-faceted, long-range expansion proposal for the Airport that will provide increased capacity for both air cargo and passenger operations.

The trial court issued a peremptory writ of mandate ordering the Port Commissioners to set aside approval and certification of the EIR until a supplement to the EIR was prepared and circulated that complied with the requirements of the California Environmental Quality Act (Pub. Resources Code, §§ 21000 et seq.) (CEQA).¹ The trial court held that the EIR prepared for the ADP violated CEQA by failing to analyze a reasonable range of alternatives, and by failing to evaluate the cumulative impacts of the ADP in combination with other reasonably foreseeable projects.

The judgment granting a peremptory writ of mandate is reversed in part and affirmed in part. We affirm the portion of the superior court's judgment directing that a revised EIR be prepared to include further discussion of project alternatives and cumulative impacts. However, we conclude that the EIR prepared for the ADP did not comply with CEQA in its treatment of several other critical issues. Specifically, the EIR (1) failed to analyze adequately the noise impacts from planned additional nighttime flights; (2) erred in using outdated information in assessing the emission of toxic air contaminants (TACs) from jet aircraft; (3) failed to support its decision not to evaluate the health risks associated with the emission of TACs with meaningful analysis; and (4) improperly deferred devising a mitigation plan for the western burrowing owl.

Because there are several significant environmental issues that have not been adequately addressed in the EIR's discussion of potential impacts from the project, a new supplemental EIR must be prepared, submitted for public review and comment, and certified in accordance with CEQA. We therefore direct that the trial court issue a new writ of mandate in accordance with the views expressed herein.

II.

A. Project Overview

The project site for the ADP comprises approximately 2,445 acres and is located in the southwestern portion of the City of Oakland in Alameda County. To the north are the City of Alameda, San Leandro Bay, and Airport Channel; to the east are the cities of San Leandro and Oakland; and to the south and west is the San Francisco Bay.

The ADP is designed to reduce congestion, inconvenience, and delay at the Airport and to accommodate, at acceptable levels of service, anticipated growth in passenger and cargo activity through the year 2000². The proposed passenger components of the ADP include consolidating the two existing terminals, adding 12 new gates, reconfiguring ticket counters, enlarging waiting and other public areas, and adding baggage-handling space. Roads on and near the Airport will be widened and reconfigured, and a new 6,000 space parking garage will be built. The ADP responds to the projected growth in cargo demand by expanding the Federal Express Metroplex, the United States Postal Service Airmail Distribution Center, the North Airport cargo facilities, and constructing a multi-tenant facility.³

While the ADP is only designed to accommodate activity expected in the year 2000, the EIR forecasted the highest level of aircraft operations that might occur through 2010 if activity at the Airport continues to grow at the same pace as in the early 1990s. The EIR projected that, with implementation of the ADP, the number of aircraft operations will increase from about 470,000 in 1994 to over 600,000 in 2000, and to over 800,000 in 2010. Thus, by 2010, approximately 2,200 aircraft will take off and land at the Airport each day.

The Port of Oakland (the Port), as lead agency under CEQA, prepared a draft EIR, studying the significant environmental effects of the ADP. The draft EIR was published and made available for public review from September 10, 1996, to December 30, 1996.⁴ The Port received over 500 comments on the draft document from public agencies, businesses, organizations, and individuals. Public hearings were held on November 6, 1996, at which written and oral comments were received. The comments ranged from one-page letters to multi-volume comment reports. The Port was occupied for a full year in preparing written responses to the comments received and to completing modifications to the draft EIR.

On December 3, 1997, the Port issued a final EIR for review by interested persons and public agencies. The final EIR was comprised of 617 pages, plus another 2,612 pages in appendices, comment letters, and responses to comments. The final EIR identified the ADP's significant environmental effects. Significant impacts that can be mitigated to a less-than-significant level were found in each of the following areas: social, air quality, water quality, cultural resources, biotic communities, wetlands, flooding and floodplains, hazardous materials and waste, transportation and circulation, geology and seismicity, and public services and utilities. Significant and unavoidable impacts were found in each of the following areas: noise, air quality, hazardous materials and waste, and transportation and circulation.

On December 16, 1997, the Port Commissioners adopted Resolution No. 97376, certifying the final EIR and approving the ADP. Shortly thereafter, four writ petitions were filed in the superior court challenging the Port Commissioners' decision to certify the EIR and approve the project.

On February 2, 1999, the Alameda County Superior Court entered its judgment, granting a peremptory writ of mandate. The court found that the EIR was inadequate under CEQA because it failed to analyze several alternatives to the ADP that had been identified in the early stages of the environmental review process, and because it failed to evaluate the cumulative impacts of the ADP in combination with other reasonably foreseeable projects. Specifically, the trial court found that (1) two alternatives mentioned in a notice of preparation of the EIR should have been discussed in the EIR (the "Air Passenger Dominant Alternative" and the "Air Cargo Dominant Alternative"); and (2) an analysis of the cumulative impacts of three potential future projects was required (a new runway, an extension of Runway 11/29, and construction of a high-speed taxiway). The court rejected a host of other claims made with regard to the adequacy of the EIR.

A writ of mandate issued that conformed to these rulings, and which ordered the Port Commissioners to set aside approval and certification of the EIR until a supplement to the EIR was prepared and circulated that complied with the requirements of CEQA by containing an adequate analysis of project alternatives and cumulative impacts. The court also issued an injunction prohibiting the Port from taking any action to implement the ADP until it had fully complied with CEQA. Following briefing and hearing, the court issued an order jointly granting petitioners $180,000 in attorney fees.

The trial court's resolution of this controversy has spawned several appeals, which reach us after a somewhat serpentine procedural history. We first consider Appeal No. A086708, which is composed of separate appeals by the City of Alameda and two citizens organizations, Berkeley Keep Jets Over the Bay Committee (KJOB), and Citizens League for Airport Safety and Serenity (CLASS) (hereafter collectively referred to as petitioners).⁵ Petitioners primarily argue that the EIR's project description failed to disclose the full magnitude of the project, and that the EIR did not fully address many significant environmental issues associated with the proposed expansion of the Airport's operations and facilities, including noise impacts, emission of toxic air pollutants, and adverse impacts on threatened species such as the burrowing owl. The Port cross-appealed, claiming the trial court erred in requiring a supplemental analysis of project alternatives and cumulative impacts.⁶

In Appeal No. A089660, we review the trial court's order discharging the peremptory writ of mandate issued in Appeal No. A086708. In Appeal No. A087959, we review the court's order awarding petitioners $180,000 in attorney fees pursuant to Code of Civil Procedure section 1021.5, to be divided by stipulation or subsequent court order. Before we...