City of Jurupa Valley v. City of Riverside CA2/3 ( 2015 )

Filed 11/6/15 City of Jurupa Valley v. City of Riverside CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
CITY OF JURUPA VALLEY, B257623
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS143085)
v.
CITY OF RIVERSIDE et al.,
Defendants and Respondents;
SOUTHERN CALIFORNIA EDISON,
Real Party in Interest and Respondent.
APPEAL from judgment of the Superior Court of Los Angeles County,
Thomas I. McKnew, Jr., Judge. Affirmed.
Peter M. Thorson, City Attorney (Jurupa Valley); Richards, Watson & Gershon,
Ginetta L. Giovinco and Stephen D. Lee for Plaintiff and Appellant.
Allen Matkins Leck Gamble Mallory & Natsis, K. Erik Friess and Nicholas S.
Shantar for Lennar Homes of California Inc. as Amicus Curiae on behalf of Plaintiff and
Appellant.
Best Best & Krieger, Michelle Ouellette, Charity Schiller and Alisha M.
Winterswyk for Defendants and Respondents and Real Party in Interest and Respondent.
_____________________
INTRODUCTION
In need of more electrical power for the growing City of Riverside population,
Defendants and Respondents the City of Riverside (Riverside) and the Riverside Public
Utilities Department (RPU) worked together with real party in interest Southern
California Edison (Edison) to design the Riverside Transmission and Reliability Project
(the Project). The Project involves the creation of a transmission line, two substations,
and several subtransmission lines to deliver power throughout Riverside. Pursuant to the
California Environmental Quality Act (CEQA), Riverside evaluated the environmental
impact of the Project, made modifications in response to public comment, and approved
the Project. Plaintiff and Appellant the City of Jurupa Valley opposed the Project
through public comment during the environmental review and subsequently brought a
mandamus action in superior court, which was denied. Jurupa Valley appeals from the
superior court’s denial of its mandamus petition.
On appeal, Jurupa Valley asserts that Riverside violated CEQA by (1) failing to
recirculate the Final Environmental Impact Report (Final EIR) despite adding new
information to it, (2) not fairly and in good faith analyzing Project alternatives, and
(3) pre-committing to the Project. We affirm on all grounds. Substantial evidence
supports Riverside’s determination that recirculation was not required because the minor
rerouting of the transmission lines did not result in increased or new, substantial
environmental impacts. The administrative record also demonstrates that Riverside
reasonably excluded the Eastern Route and undergrounding from the Project alternatives
on the basis that they were infeasible and failed to meet the Project’s objectives. Lastly,
the record does not indicate that Riverside committed itself to the Project so as to
effectively preclude any alternatives or mitigation measures that CEQA would otherwise
require to be considered.
FACTS AND PROCEDURAL BACKGROUND
Edison currently delivers electrical power to the City of Riverside via a single
transmission line connected to the surround grid at Edison’s Vista Substation, which is
operated by the California Independent Systems Operator (CAISO, the independent
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electrical grid operator for approximately 80% of California’s power grid). Because
Riverside’s electricity needs have outstripped supply, Riverside and RPU have worked
with Edison over the last decade to design a second connection to the transmission grid in
order to provide more power to Riverside and to protect Riverside residents and
businesses against the blackouts that occur whenever service from the Vista substation is
interrupted. Studies prepared by Edison demonstrated that, at minimum, a double-circuit
220 kilovolt (kV) transmission line (operable at 230 kV) and a 220-66 kV transmission
substation (operable at 230-69 kV) were needed to provide Riverside with a second
electricity transmission source. In January 2006, the RPU Board recommended and the
Riverside City Council approved an $800,000 appropriation for consultant Power
Engineers to conduct a study of Project alternatives, environmental review of the Project
pursuant to CEQA, and permitting. Additional appropriations were later approved by the
City Council in order to complete the environmental review.
Also in 2006, Riverside conducted a Siting Study, assessing the feasibility of three
possible routes (the Santa Ana River West Corridor, the Central Corridor, and the Santa
Ana River East Corridor) for the main transmission line. Through this study, Riverside
determined that the Eastern Route was not feasible due to public safety, structural
stability, and environmental concerns. Riverside used this study to define the scope of
the Project and its alternatives for the EIR.
In August 2011, Riverside issued the Draft EIR. The Draft EIR defined the
Project as involving the creation of a 230 kV transmission line (a portion of which would
lie within the city limits of the City of Jurupa Valley), two new substations, and several
69 kV subtransmission lines to deliver power to areas throughout Riverside. Within the
EIR, Riverside excluded the Eastern Route as an alternative based on its findings from
the Siting Study and a preliminary geotechnical evaluation of the potential routes made
by Edison. Riverside also determined that it was not feasible to underground the 230 kV
or the 69 kV lines because undergrounding provided solely aesthetic benefits, while
costing many times more than overhead lines and while causing greater environmental
impacts.
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Riverside subsequently issued a Final EIR, responding to comments and making
minor modifications to the Project in response to public concerns. In reaction to a
shopping center’s concerns regarding the 230 kV transmission line running through its
parking lot, Riverside rerouted the transmission line to run along the backside of the
shopping center. Responding to significant safety concerns, Riverside decided to
underground a half-mile stretch of 69 kV transmission line, which paralleled the
Riverside Municipal Airport and would have otherwise obstructed flight paths. Riverside
informally accepted and responded to additional comments regarding the Final EIR, and
subsequently approved the Project, issuing a statement of overriding considerations.
Jurupa Valley opposed the Project through public comment during the
environmental review and subsequently brought a mandamus action in superior court. In
its petition for a writ of administrative mandamus, Jurupa Valley argued in part that
Riverside violated CEQA by not recirculating the Final EIR after adding new information
to it, failed to properly analyze Project alternatives, and pre-committed to the Project.
The court denied the petition, finding that the Final EIR did not require recirculation,
Riverside reasonably considered Project alternatives, and that Riverside did not pre-
commit to the Project. Jurupa Valley now appeals.
DISCUSSION
Jurupa Valley makes three main arguments regarding the City’s compliance with
CEQA. First, Jurupa Valley argues that Riverside failed to comply with CEQA because
Riverside added significant new information to the Final EIR, which included altering the
route of transmission lines in two places, without re-circulating the Final EIR for public
review, public comment, and responses to those comments. Second, Jurupa Valley
asserts that Riverside did not fairly and in good faith evaluate Project alternatives,
specifically undergrounding portions of the transmission lines and running the 230 kV
transmission line along a different route to the east. Third, Jurupa Valley argues that
Riverside impermissibly pre-committed to the Project as evidenced by statements made
by RPU, CAISO’s approval of the Project, Riverside’s pre-selection of a preferred route,
Riverside’s Interconnection Facilities Agreement with Edison, Riverside’s commitment
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of funds to the Project, and decision to underground a portion of the 69 kV
subtransmission line despite findings that it was infeasible.
As in other mandamus cases, we review the agency’s action, not the trial court’s
decision. Our standard of review of the administrative record is the same as the trial
court’s standard. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho
Cordova (2007) 40 Cal. 4th 412, 427 (Vineyard).) We review legal errors, like pre-
commitment, de novo. (Save Tara v. City of West Hollywood (2008) 45 Cal. 4th 116, 131
(Save Tara).) We review the lead agency’s factual determinations, like the agency’s
decision not to recirculate the Final EIR and choice of Project alternatives, for substantial
evidence. (Vineyard, at p. 427; Laurel Heights Improvement Assn. v. Regents of
University of California (1993) 6 Cal. 4th 1112, 1135 (Laurel Heights II); In re Bay-Delta
etc. (2008) 43 Cal. 4th 1143, 1161-1162 (Bay-Delta).) “ ‘Substantial evidence is defined
as “enough relevant information and reasonable inferences from this information that a
fair argument can be made to support a conclusion, even though other conclusions might
also be reached.” ’ [Citations.] Substantial evidence is not ‘[a]rgument, speculation,
unsubstantiated opinion or narrative, evidence which is clearly inaccurate or erroneous,
or evidence of social or economic impacts which do not contribute to, or are not caused
by, physical impacts on the environment . . . . Substantial evidence shall include facts,
reasonable assumptions predicated upon facts, and expert opinion supported by facts.’ ”
(Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th
1184,1198, citing Pub. Resources Code, § 21082.2, subd. (c); Guidelines, § 15384, subds.
(a) & (b). 1)
1
All references to “Guidelines” are to the CEQA Guidelines (Cal. Code Regs., tit.
14, § 15000 et seq.). Courts “should afford great weight to the Guidelines except when a
provision is clearly unauthorized or erroneous under CEQA.” (Laurel Heights
Improvement Assn. v. Regents of University of California (1988) 47 Cal. 3d 376, 391,
fn. 2 (Laurel Heights I).)
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1. The Final EIR Did Not Require Recirculation
First, Jurupa Valley argues that Riverside failed to comply with CEQA because
Riverside added significant new information to the Final EIR by altering the route of
transmission lines in two places without re-circulating the Final EIR for public review,
public comment, and responses to those comments.
“With narrow exceptions, CEQA requires an EIR whenever a public agency
proposes to approve or to carry out a project that may have a significant effect on the
environment.” (Laurel Heights I, supra, 47 Cal.3d at p. 390.) “An EIR is an
informational document which provides detailed information to the public and to
responsible officials about significant environmental effects of a proposed project.
[Citations.] It must contain substantial evidence on those effects and a reasonable range
of alternatives . . . .” (Goleta Union School Dist. v. Regents of University of California
(1995) 37 Cal. App. 4th 1025, 1030.) When preparing an EIR, the lead agency must
provide the draft EIR to the public and afford the public a period of time to review the
draft EIR and submit comments. (Pub. Resources Code, § 21092; Laurel Heights II,
supra, 6 Cal.4th at p. 1123.) The agency must then evaluate the public comments it
receives and prepare a written response. (Guidelines, § 15088, subd. (a).) “The response
to comments may take the form of a revision to the draft EIR or may be a separate section
in the final EIR.” (Id., subd. (d).) Given the requirement of providing written responses
to public comments, “the final EIR will almost always contain information not included
in the draft EIR.” (Laurel Heights II, at p. 1124.)
CEQA requires notice and recirculation for public review and comment of an EIR
when “significant new information is added” to the EIR after the public comment period
has closed but before certification. (Pub. Resources Code, § 21092.1.) In Laurel Heights
II, the Supreme Court concluded that “the addition of new information to an EIR after the
close of the public comment period is not ‘significant’ unless the EIR is changed in a way
that deprives the public of a meaningful opportunity to comment upon a substantial
adverse environmental effect of the project or a feasible way to mitigate or avoid such an
6
effect (including a feasible project alternative) that the project’s proponents have declined
to implement.” (Laurel Heights II, supra, 6 Cal.4th at p. 1129.)
The Supreme Court explained: “recirculation is not required where the new
information added to the EIR ‘merely clarifies or amplifies [citations] or makes
insignificant modifications in [citation] an adequate EIR.’ [Citation.] On the other hand,
recirculation is required, for example, when the new information added to an EIR
discloses: (1) a new substantial environmental impact resulting from the project or from
a new mitigation measure proposed to be implemented [citation]; (2) a substantial
increase in the severity of an environmental impact unless mitigation measures are
adopted that reduce the impact to a level of insignificance [citation]; (3) a feasible project
alternative or mitigation measure that clearly would lessen the environmental impacts of
the project, but which the project’s proponents decline to adopt [citation]; or (4) that the
draft EIR was so fundamentally and basically inadequate and conclusory in nature that
public comment on the draft was in effect meaningless [citation].” (Laurel Heights II,
supra, 6 Cal.4th at pp. 1129–1130.)
At issue is whether two changes regarding the route of transmission lines
constituted “significant new information” such that the EIR required recirculation
pursuant to CEQA. The first change involved Riverside undergrounding a half-mile
portion of a 69 kV subtransmission line located next to the airport due to safety risks to
air traffic. The second change involved altering the route of the 230 kV transmission line
to run along the backside of the Vernola Marketplace shopping center rather than through
the shopping center’s parking lot. We address each change to the EIR in turn.
a. Undergrounding a Half-Mile Portion of the 69 kV Subtransmission Line
Jurupa Valley contends that undergrounding the half-mile portion of the 69 kV
line adjacent to the Riverside Airport created “new environmental impacts and a
substantial increase in existing environmental impacts.” Specifically, Jurupa Valley
argues that undergrounding this small portion of 69 kV line would result in greater and
new impacts to air quality, land use disturbance, traffic, noise, biology, water and
hydrology, and economics that were not contemplated in the Draft EIR.
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We disagree. The Final EIR demonstrated that undergrounding this half-mile
stretch of subtransmission line would not have a new substantial environmental impact or
a substantial increase in the severity of an environmental impact. As to the construction
associated with undergrounding, the Final EIR indicates that the Draft EIR had already
considered and accounted for the environmental impacts associated with 60 days of
underground construction a 69 kV subtransmission line in anticipation of a possible
scenario where a portion of one such line required undergrounding. The Final EIR
explicitly stated:
“Construction estimates presented in the DEIR included a contingency for
up to 60 days of underground construction work for the 69 kV
subtransmission line between RERC and Harvey Lynn/Freeman
Substations. This contingency was based on design assumptions that
included ‘worst-case’ project planning and allowed for a very conservative
over-estimate of analyzed air quality emissions to be presented in the
DEIR. As a result, mitigative undergrounding stipulated by [the Airport
Land Use Commission] and other modifications did not require additional
air quality analysis, because project changes and their associated air
emissions changes were already captured within the original analysis
boundaries.”
Table 2.5-2 within the second chapter of the Draft EIR accounts for the construction
impacts associated with the 60 days of undergrounding a 69 kV line. The environmental
analysis in Chapter Three of the Draft EIR also accounts for this “worst-case” scenario.
In discussing emissions, Chapter Three of the Draft EIR similarly stated that it analyzed
“worst case emissions resulting from [the] Proposed Project construction and assume[d]
that the peak emitting construction activities from each construction location occur on the
same day.” The EIR stated that with mitigative measures, including staggering the
construction work, the emissions were reduced to insignificant levels.
The Final EIR indicates that the construction associated with a half-mile of
undergrounding the 69 kV could be accomplished within the 60 days of undergrounding
allotted in Draft EIR. Because the Draft EIR already accounted for the environmental
impacts associated with undergrounding the transmission line adjacent to the airport, the
construction related to this change to the EIR did not result in a new substantial
8
environmental impact or a substantially increased environmental impact. This aspect of
the EIR did not require recirculation.
In addition, the Final EIR indicated that post-construction, the underground 69 kV
subtransmission line would not cause additional or increased environmental impacts. The
Final EIR explained that the cables used for undergrounding would not cause any
significant environmental impact because they “cannot leak fluids into the surroundings,
if damage to cables occur.” The Final EIR stated that there would not be a permanent
land disturbance caused by undergrounding, and that aesthetic impacts would be less than
significant because the line would be below ground. Contrary to Jurupa Valley’s
contentions, there would be no impact to “waters or wetlands because the
undergrounding would occur within disturbed areas and existing road [right of ways].”
Most importantly, the Final EIR reported that undergrounding the small stretch of
subtransmission line would eliminate a previously significant danger to air traffic. Thus,
having this particular portion of subtransmission line underground reduced aesthetic
impacts, reduced airplane safety impacts, and did not result in new or increased impacts
to the environment.
In sum, the administrative record provides substantial evidence supporting
Riverside’s determination that recirculation was not required because this minimal
amount of undergrounding did not result in a new substantial environmental impact or a
substantial increase in the severity of an environmental impact.
b. Rerouting the 230 kV Behind Vernola Marketplace Shopping Center
Jurupa Valley also contends that a minor change in the placement of the 230 kV
transmission line to avoid interference with the Vernola Marketplace shopping center
parking lot will cause “substantial increase in traffic impacts” and that this modification
required recirculation of the Final EIR. The Draft EIR planned for the 230 kV
transmission line to run through the Vernola Marketplace parking lot. In response to
public comment, including comments from Vernola Marketplace’s owner who requested
a modified route, Riverside reevaluated the original route through the parking lot and
determined that “a minor routing refinement” was feasible, and would avoid or reduce
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ground disturbance, interference with roadways, and aesthetic impacts. Thus, the Final
EIR shifted the transmission line’s route so that it ran along the backside of the Vernola
Marketplace.
Jurupa Valley relies heavily on the Final EIR’s statement that as a result of
construction, “high traffic impacts” would occur on Limonite Avenue in arguing that
Riverside was required to recirculate. Yet, these traffic impacts were already anticipated
by the Draft EIR. Prior to rerouting the 230 kV line, the Draft EIR stated that
“Construction of the 230 kV transmission line would create temporary impacts along
approximately 0.4 miles of the transmission line route at Limonite Avenue and the
Vernola Marketplace shopping center parking lot south of Limonite Ave. Temporary
lane closures, detours and stoppages of traffic that may occur during construction activity
are expected to create transportation operation impacts, such as fewer travel lanes, an
increase in travel time, reduced speeds or stoppage of travel for motorists . . . entering,
exiting and traveling within the shopping center parking lot.” The Draft EIR stated that
these potential temporary traffic impacts would be less than significant when mitigation
measures were implemented.
The Final EIR indicated that the minor route modification of the 230 kV line
would not change the fact that the transmission line would still cross Limonite Avenue,
and that its construction would impact Limonite Avenue as set forth in the Draft EIR.
The Final EIR reiterated much of the quoted language in the above paragraph, stating
that: “[t]emporary lane closures, detours, and stoppages of traffic that may occur during
construction activity are expected to create transportation operation impacts, such as lane
reduction, delays in travel time, reduced speeds, or stoppage of travel for motorists.” The
Final EIR further stated that “[w]ith the proposed realignment of the 230 kV transmission
line west of Vernola Marketplace, high traffic impacts on Limonite Avenue are
anticipated in the vicinity of the northbound I-15 on- and off-ramps instead of the
shopping center entry/exit points; however, the approximate length of Limonite Avenue
would be affected by this realignment.”
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The Final EIR clearly indicated that traffic impacts on Limonite Avenue have not
changed in a significant degree through this minor route alteration. Both the Draft and
Final EIRs concluded that implementation of mitigation measures would reduce the
traffic impacts to less than significant levels. Moreover, the Final EIR stated that this
route change would reduce the length of the 230 kV transmission line, the amount of
severe angles in the transmission line, total overhead structures, the number of lattice
towers, and construction air emissions.
Thus, substantial evidence supported Riverside’s decision not to recirculate the
EIR as this change did not result in a new or a substantially increased environmental
impact. Rather, this revision to the EIR reduced environmental impacts. We conclude
that Riverside did not include significant new information in the Final EIR requiring
recirculation.
2. Riverside Sufficiently Analyzed Project Alternatives
Jurupa Valley asserts that Riverside did not fairly and in good faith evaluate two
Project alternatives: undergrounding portions of the transmission lines and running the
230 kV transmission line along a different route to the east. “The core of an EIR is the
mitigation and alternatives sections.” (Citizens of Goleta Valley v. Board of Supervisors
(1990) 52 Cal. 3d 553, 564 (Goleta).) “CEQA requires that an EIR, in addition to
analyzing the environmental effects of a proposed project, also consider and analyze
project alternatives that would reduce adverse environmental impacts.” (Bay-Delta,
supra, 43 Cal.4th at p. 1163.) The Guidelines mandate that the EIR “describe a range of
reasonable alternatives to the project, or to the location of the project, which would
feasibly attain most of the basic objectives of the project but would avoid or substantially
lessen any of the significant effects of the project, and evaluate the comparative merits of
the alternatives.” (Guidelines, § 15126.6, subd. (a).)
“In determining the nature and scope of alternatives to be examined in an EIR, the
Legislature has decreed that local agencies shall be guided by the doctrine of
‘feasibility.’ ” (Goleta, supra, 52 Cal.3d at p. 565.) “ ‘Feasible’ means capable of being
accomplished in a successful manner within a reasonable period of time, taking into
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account economic, environmental, social, and technological factors.” (Pub. Resources
Code, § 21061.1.) “Among the factors that may be taken into account when addressing
the feasibility of alternatives are site suitability, economic viability, availability of
infrastructure, general plan consistency, other plans or regulatory limitations,
jurisdictional boundaries (projects with a regionally significant impact should consider
the regional context), and whether the proponent can reasonably acquire, control or
otherwise have access to the alternative site (or the site is already owned by the
proponent). No one of these factors establishes a fixed limit on the scope of reasonable
alternatives.” (Guidelines, § 15126.6, subd. (f)(1).)
“There is no ironclad rule governing the nature or scope of the alternatives to be
discussed other than the rule of reason.” (Guidelines, § 15126.6, subd. (a).) Pursuant to
the rule of reason, the EIR must “set forth only those alternatives necessary to permit a
reasoned choice. The alternatives shall be limited to ones that would avoid or
substantially lessen any of the significant effects of the project. Of those alternatives, the
EIR need examine in detail only the ones that the lead agency determines could feasibly
attain most of the basic objectives of the project.” (Guidelines, § 15126.6, subd. (f).)
“ ‘The discussion of alternatives need not be exhaustive . . . .’ [Citation.] CEQA ‘does
not demand what is not realistically possible, given the limitation of time, energy and
funds, “Crystal ball” inquiry is not required.’ ” (Saltonstall v. City of Sacramento (2015)
234 Cal. App. 4th 549, 583.)
“The process of selecting the alternatives to be included in the EIR begins with the
establishment of project objectives by the lead agency. ‘A clearly written statement of
objectives will help the lead agency develop a reasonable range of alternatives to evaluate
in the EIR and will aid the decision makers in preparing findings . . . . The statement of
objectives should include the underlying purpose of the project.’ ” (Bay-Delta, supra,
43 Cal.4th at p. 1163.)
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Here, Riverside’s Project goals were to provide an additional point of delivery for
bulk power to Riverside’s electrical system in order to reliably meet the system’s present
load and future growth, to upgrade the subtransmission electrical system, to minimize
environmental impacts, and to build this new transmission system in a cost-effective
manner. The Draft EIR sets forth a detailed explanation about the infeasibility of
undergrounding and of constructing within the Eastern Route in the context of these
objectives.
a. Undergrounding the Transmission Lines
Jurupa Valley contends that Riverside failed to “realistically and fairly entertain
the possibility of undergrounding a portion of the transmission lines.” Jurupa Valley
asserts that this failure is evidenced by Riverside’s initial determination that
undergrounding was not feasible for any of the Project and Riverside’s subsequent
conclusion that it was feasible to underground a half-mile portion of transmission line
adjacent to the airport in order to prevent dangerous obstructions within the flight
patterns of local air traffic. Jurupa Valley argues that Riverside’s decision to
underground a short segment of the 69 kV line to ensure aircraft safety demonstrated that
undergrounding was a viable option for the Project. We disagree as substantial evidence
supported Riverside’s determination that undergrounding was infeasible for the Project,
with the minor exception of the half-mile of subtransmission line adjacent to the airport.
The EIR explicated that despite the aesthetic benefit associated with not having the
overhead transmission lines running through the community, undergrounding would
nonetheless cause visual degradation of the landscape due to the necessary removal of
vegetation for transmission line installation and maintenance, and for the creation of
transition sites where lines would move from below to above ground. In addition,
underground transmission line construction would create greater emissions, increase
traffic, and disturb more habitats through the arduous and time-consuming process of
trenching the transmission lines. Undergrounding also would increase the likelihood of
damaging existing utility lines while trenching.
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In addition to these concerns, constructing underground transmission lines is
substantially more expensive than overhead transmission line construction.
Undergrounding shorter lengths of transmission line can cost between 10 to 20 times
more than construction for overhead lines due to expenses associated with trenching and
the installation of more numerous transition structures. Even when undergrounding
longer lengths of transmission line, the cost of undergrounding “would still be expected
to be many times more costly than overhead” because the transmission line route is not
linear as it was designed to avoid environmental impacts and land use incompatibilities.
Due to the many angles in the route, the transmission line would require specially
designed structures to maintain its tension if undergrounded.
Moreover, maintaining underground lines would be more arduous due to the
vulnerabilities associated with their subterranean location and the limited physical
accessibility of the lines. While typically unaffected by weather conditions, the
underground transmission lines “are vulnerable to cable/splice failure, washouts, seismic
events, and incidental excavation.” In comparison to the several hours it typically takes
to locate and repair overhead line outages, electrical outages for underground lines
“generally last days or weeks while the problem is located, excavated, and repaired.”
These longer outages “can have an effect on human health and safety, as well as lost
production or spoiled food items. For example, the ability to refrigerate food and to
maintain medical equipment, homes, commercial businesses, and industrial customers
requires reliable power.” The Draft EIR explained how these undergrounding concerns
applied to both the 230 kV and 69 kV lines.
Based on the foregoing, substantial evidence supports Riverside’s conclusion that
undergrounding was infeasible for the Project as it failed to meet Riverside’s Project
objective of building a reliable, cost effective second transmission system with as few
environmental impacts as possible. Riverside only opted to permit a half-mile of
undergrounding adjacent to the airport to eliminate a significant, life-threatening hazard
to air traffic entering and exiting the airport. The record indicates that Riverside solely
made this exception out of an absolute necessity to protect the public. This minor
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exception does not support Jurupa Valley’s assertion that Riverside did not fairly and in
good faith consider undergrounding for the remainder of the Project.
“CEQA’s only purpose is to guarantee that the public and the agencies of the
government will be informed of environmental impacts, that they will consider those
impacts before acting, and that insofar as practically possible, feasible alternatives and
mitigation measures will be adopted to lessen or avoid adverse environmental impacts.”
(San Franciscans Upholding the Downtown Plan v. City and County of San Francisco
(2002) 102 Cal. App. 4th 656, 695.) The record shows that Riverside’s consideration and
rejection of undergrounding met these objectives. The EIR makes it evident that the sole
benefit to be obtained from undergrounding was aesthetic and that undergrounding
increased environmental impacts and was considerably more costly. Substantial evidence
thus supports Riverside’s rejection of undergrounding as an infeasible alternative for the
rest of the Project.
b. The Eastern Route
In addition, Jurupa Valley argues that Riverside improperly rejected the Eastern
Route as an infeasible Project alternative. Riverside initially considered the Santa Ana
River East Corridor as a potential route for the 230 kV transmission line and analyzed
this alternative route in the June 2006 Siting Study for the Project. That review
ascertained that construction of the Eastern Route would exacerbate public safety risks
and unnecessarily jeopardize natural resources. Riverside described these issues in a
four-page text summary and a chart in the Draft EIR. Riverside also provided additional
details in the Final EIR in Master Response #10 Alternatives to Comment, and in
additional responses from staff during the administrative process. We discuss Riverside’s
findings in detail below and conclude that substantial evidence supported Riverside’s
conclusion that the Eastern Route was not feasible because it failed to satisfy the Project
objectives and posed a public safety risk.
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i. Structural and Safety Concerns
As explained by the Draft EIR, the Eastern Route was infeasible because it
required transmission line structures to be placed inside an existing flood control right-of-
way, near existing levees. Riverside determined that if placed in this location, the
transmission line structures created potential “unavoidable constructability issues” and
“operational impacts to . . . levee structural integrity.” Since much of the land adjacent to
the Santa Ana River corridor had already been developed, a large number of the Eastern
Route 230 kV line structures would have to be installed along the edge of the river
corridor, directly within the river’s 100-year flood zone. Approximately 40 structures
would be located in the 100-year flood zone, and an additional seven others in the 500-
year flood zone. Large floods would render the transmission lines inaccessible and
possibly wash out or cause the collapse of live transmission lines into water. The Eastern
Route would jeopardize the reliability of the transmission line and possibly create serious
safety hazards.
The Siting Study determined that an alternate route along the eastern river corridor
was not available, as the agencies that control the higher ground along the river indicated
that they would not permit installation of the transmission infrastructure on their land.
Riverside would be required to install other structures, like damns, levees, or other berms,
in order to install the transmission lines along the river corridor. This would result in
extensive and detrimental environmental impacts and alterations to the existing flood
plain. The geotechnical study performed by Edison further indicated that installing this
infrastructure to support the transmission lines within the river corridor would expose
more transmission towers to higher risks of liquefaction, flooding, erosion, and slope
instability than the other alternatives analyzed in the EIR. From a structural perspective,
the Eastern Route was simply infeasible and impractical, and pursuing it would be
contrary to the Project objectives.
16
Jurupa Valley argues that these same challenges described with regard to the
Eastern Route are also present with the proposed Project route as it crosses the Santa Ana
River. As explained above, the Eastern Route involved structures running along and
periodically crossing the river due to residential development in the area. In contrast, the
proposed route would only cross the river once at a 90-degree angle with a single span of
conductor. In making that crossing, the proposed route places only five structures in the
100-year flood plain, in comparison to the Eastern Route’s 40 structures within the flood
plain. We conclude that Jurupa Valley’s argument regarding the comparability of safety
and structural risks between the proposed route and the Eastern Route lacks factual
support. As explained above, the structural instability and related public safety concerns
alone render the Eastern Route infeasible.
ii. Environmental Impacts
Substantial evidence also supports Riverside’s conclusion that the Eastern Route
was infeasible due to the great environmental impacts that it would create. The Eastern
Route would cause greater impacts to biological resources, including sensitive species,
habitats, and wetlands than would be caused by the proposed route. The Eastern Route
corridor contains habitats that support 14 special status wildlife species and 16 sensitive
plant species, several of which would not be impacted in the proposed route. The
corridor would sustain losses to plant and animal life as a result of transmission line
construction activities.2 The Eastern Route would also impact sensitive habitat resources,
including areas specially earmarked for habitat conservation and identified wetlands. The
Eastern Route would thus create greater biological environmental impacts than the
proposed route.
2
To the extent that Jurupa Valley argues that Riverside admits biological studies
were not conducted, the record indicates otherwise. Riverside’s biologist performed
several surveys in the Eastern Route corridor for several special status species, including
the Burrowing Owl, Least Bell’s vireo, Southwestern Willow Flycatcher, Western
Yellow-Billed Cuckoo, and Delhi Sands Flower-Loving Fly.
17
In addition, the transmission lines within the Eastern Route would extend past the
Western Riverside County Multiple Species Habitation Conservation Plan territory and
enter other counties. The transmission line’s route through the adjacent counties would
require additional biological studies and consultation with the United States Fish and
Wildlife Service in order to proceed with construction, resulting in substantial delays to
the Project. Based on these concerns, the Eastern Route also failed to satisfy the
Project’s timing objectives.
Riverside also determined that the Eastern Route would create aircraft hazards,
impact existing land uses, and diminish cultural resources. The Eastern Route 230 kV
transmission lines would be located less than half a mile from the Flabob Airport, where
the transmission lines would pose a danger to low-flying aircraft. The Eastern Route
transmission lines would traverse as many as six city or county parks and other park
district land, resulting in greater impacts to lands dedicated for recreation purposes than
the impacts within proposed route. The Eastern Route would also visually impact and
possibly diminish the cultural value of several California Historic Landmarks, two
properties listed on the National Register of Historic Places, and four historically distinct
neighborhoods (two with historically important architecture) by introducing highly
visible, modern structures into the area.
Aesthetically, the Eastern Route would generate greater impacts than the proposed
route. The proposed route contains one perpendicular crossing of the Santa Ana River.
In contrast, the Eastern Route would parallel the river for several miles along an
established hiking trail, and likely cross the river multiple times due to existing
residential development along the corridor. The installation of overhead transmission
lines into this area would impair the river views from the nature trail and the surrounding
neighborhoods.
The Eastern Route thus failed to satisfy the Project’s objective of minimizing
environmental impacts. As explained above, Riverside need only discuss alternatives
that would avoid or substantially lessen any of the significant effects of the Project.
Substantial evidence indicates that the Eastern Route could not satisfy this threshold
18
requirement for inclusion in the EIR as an alternative. Further discussion of the Eastern
Route alternative was not necessary for Riverside to engage in a reasoned, informed
analysis of the Project.
Jurupa Valley likens Riverside’s rejection of the Eastern Route to the lead
agency’s superficial rejection of alternative locations in Laurel Heights I, supra,
47 Cal.3d at page 404, asserting that Riverside’s investigation of the Eastern Route was
insufficient because it was done during Riverside’s internal planning process. In Laurel
Heights I, the lead agency analyzed the environmental impacts associated with the
relocation of a university biomedical research facilities to a newly acquired building in a
residential area. (Id. at pp. 388-389.) The Supreme Court concluded that the agency’s
“treatment of alternatives was cursory at best.” (Id. at p. 403.) Within a scant one and
one-half pages of the 250-page EIR, the agency “stated the obvious conclusion that the
‘no project’ alternative, i.e., no relocation to Laurel Heights, would not have the
environmental effects identified in the EIR. It then stated in a mere two-sentence
paragraph that ‘ . . . no alternative sites on . . . campus were evaluated as possible
candidates for the location of the basic science units of the School of Pharmacy.’ ”
(Ibid.) The EIR similarly concluded that there were no sites off-campus that could
accommodate the facility. (Ibid.) The Supreme Court stated that this was “merely an
admission that such alternatives were not considered,” and opined that “[i]t defies
common sense for the Regents to characterize this as a discussion of any kind; it is barely
an identification of alternatives, if even that.” (Ibid.)
Laurel Heights I is incongruent to the facts before us. Contrary to Jurupa Valley’s
contentions, Riverside engaged in meaningful analysis of the alternatives and
comprehensively informed the public of its findings within the Draft EIR. Riverside
performed its duties as lead agency in scoping the Project and its alternatives prior to the
creation of the Draft EIR. (Goleta, supra, 52 Cal.3d at p. 569 [“The local
agency . . . must make an initial determination as to which alternatives are feasible and
merit in-depth consideration, and which do not. [Citation.] In California, this screening
process is known as ‘scoping.’ (See Guidelines, § 15083, subd. (a) [‘Scoping has been
19
helpful to agencies in identifying the range of actions, alternatives, mitigation measures,
and significant effects to be analyzed in depth in an EIR and in eliminating from detailed
study issues found not to be important.’].)”].) Riverside properly described why it
rejected these two alternatives in the Draft EIR and provided the public with the multiple
studies on which it based its decision. (Goleta, at p. 569 [“ ‘But where potential
alternatives are not discussed in detail in the [EIR] because they are not feasible, the
evidence of infeasibility need not be found within the [EIR] itself. Rather a court may
look at the administrative record as a whole to see whether an alternative deserved greater
attention in the [EIR].’ ”].)
Notably, “CEQA requires neither that the EIR be perfect, nor that the analysis be
exhaustive. . . . [C]ourts do not ‘ “pass upon the correctness of the EIR’s environmental
conclusions, but only upon its sufficiency as an informative document.” [Citation.]’
[Citation.]” (City of Long Beach v. Los Angeles Unified School Dist. (2009)
176 Cal. App. 4th 889, 922.) We conclude that this EIR was sufficiently informative
regarding the rejection and investigation of the Project alternatives. We hold that
substantial evidence supported Riverside’s elimination of undergrounding and the
Eastern Route as viable alternatives.
3. Substantial Evidence Supports the Court’s Determination that Riverside Did
Not Pre-Commit to the Project
Jurupa Valley argues that Riverside impermissibly pre-committed to the Project as
evidenced by statements made by RPU, Riverside’s commitment of funds to the Project,
Riverside’s pre-selection of a preferred route, CAISO’s approval of the Project,
Riverside’s Interconnection Facilities Agreement with Edison, and Riverside’s decision
to underground a portion of the 69 kV subtransmission line despite findings that
undergrounding was infeasible.
20
a. Routine Project Planning Does Not Constitute Pre-Commitment
Jurupa Valley asserts that RPU’s statements about the Project, Riverside’s
budgeting for the Project, and Riverside’s Project definition demonstrate that Riverside
pre-committed to the Project. The statements and conduct at issue are routinely made
and performed during the planning process and do not establish pre-commitment.
To show pre-commitment, Jurupa Valley must prove that Riverside approved the
Project before engaging in environmental review. (Cedar Fair, L.P. v. City of Santa
Clara (2011) 194 Cal. App. 4th 1150, 1160-1161 (Cedar Fair); Pub. Resources Code,
§§ 21061, 21151; Guidelines, § 15004(a).) Approval in this context “means the decision
by a public agency which commits the agency to a definite course of action in regard to a
project intended to be carried out by any person. . . . Legislative action in regard to a
project often constitutes approval.” (Guidelines, § 15352, subd. (a).) Public agencies are
barred from “tak[ing] any action which gives impetus to a planned or foreseeable project
in a manner that forecloses alternatives or mitigation measures that would ordinarily be
part of CEQA review of that public project.” (Guidelines, § 15004, subd. (b)(2)(B).) In
determining whether the agency has impermissibly pre-committed to the project, “the
critical question is ‘whether, as a practical matter, the agency has committed itself to the
project as a whole or to any particular features, so as to effectively preclude any
alternatives or mitigation measures that CEQA would otherwise require to be considered,
including the alternative of not going forward with the project. (See [Guidelines],
§ 15126.6, subd. (e).)’ ” (Cedar Fair at p. 1170, citing Save Tara, supra, 45 Cal.4th at
p. 139.)
i. RPU’s Statements About the Project
First, Jurupa Valley asserts that in 2006, Riverside and RPU made statements
showing pre-commitment to the Project. One set of statements was made by RPU in a
RPU Board Memorandum, dated January 20, 2006. There, RPU stated that “[a]pproval is
required for . . . procuring the necessary services to continue development of the 220 kV
Upgrade Project.” RPU also stated: “It is planned that the authorization to construct will
be granted by the City Council, acting as the Lead Agency in the [CEQA] process.” The
21
other statement Jurupa Valley relies on to prove pre-commitment is within another RPU
Board Memorandum dated February 17, 2006, where RPU stated: “As was outlined in
the January 20 presentation to the Board, this project must move forward in order to meet
customer energy needs.”
These statements made by RPU did nothing more than express that the Project
required approval by City Council in the future. RPU’s memorandums did not legally
bind Riverside to any particular course of action, particularly because RPU lacked the
authority to commit Riverside to the Project, which required City Council approval.
Moreover, these statements cannot reasonably be construed as legally binding Riverside
to move forward with the Project absent environmental review.
ii. Riverside’s Budgeting of the Project
Second, Jurupa Valley asserts that Riverside’s Capital Improvement Plan (CIP)
demonstrated that “significant funds already were committed to the Project in advance of
any objective environmental review.” We disagree because the CIP was a planning
document intended to project the City’s capital needs through fiscal year 2015/2016. The
CIP’s statements regarding projections of funds for various projects is not an approval of
any project: the CIP expressly states that its adoption “does not signal appropriation of
funds.” In a letter from the to the Mayor and City Council accompanying the transmittal
of the CIP, the City Manager confirmed that “the CIP [was] a planning document and
does not directly appropriate funds.”
Jurupa Valley mischaracterizes the CIP in stating that Riverside has committed
over $92 million to the Project. First, based on the plain reading of the document, the
2009/2010 through 2013/2014 projection of $16.0 million of City Funds for the Project
was not an allocation; it was a projection for planning purposes. The document does not
indicate that such funds were ever allocated to the Project. Second, the 2007/2008 capital
plan’s appropriation of $90.2 million was allocated not just to the Project, but also to
another electricity project called the Sub-Transmission Project. It is unclear how much of
the $90.2 million was allocated to the Project. Nonetheless, it appears that the CIP halted
making projected allocations for the Project when the Project became delayed in the
22
permitting and licensing phase. Such conduct indicates that Riverside is not pre-
committed and is not indifferent to the necessity for review and permitting of the Project.
Furthermore, such fiscal planning and budgeting of projections do not constitute
pre-commitment as they do not require Riverside to build the Project. “[W]hen an
agency proposes to adopt ‘a mechanism for funding proposed projects that may be
modified or not implemented depending upon a number of factors, including CEQA
environmental review,’ no commitment to the projects has been made” (City of Santee v.
County of San Diego (2010) 186 Cal. App. 4th 55, 59.) Rather such activities are
consistent with CEQA’s directive that the planning and environmental review occur
concurrently to the fullest extent possible. (Guidelines, § 15004, subd. (c).) We thus
conclude that Riverside’s budgeting and financial planning activities in this context do
not evidence pre-commitment.
iii. Project Definition
Third, Riverside’s Project definition also failed to show pre-commitment. Jurupa
Valley argues that by “selecting a preferred option to build a new high-voltage power line
at the outset, Riverside placed significant bureaucratic weight behind this decision and
thereby demonstrated its pre-commitment to the Project.” Jurupa Valley asserts that “the
Project could have been adequately defined and evaluated as a project to increase the
electrical capacity in Riverside.”
It is well established that “[o]nly through an accurate view of the project may
affected outsiders and public decision-makers balance the proposal’s benefit against its
environmental cost, consider mitigation measures, assess the advantage of terminating the
proposal (i.e., the ‘no project’ alternative), and weigh other alternatives in the balance.”
(County of Inyo v. City of Los Angeles (1977) 71 Cal. App. 3d 185, 192-193 (County of
Inyo).) To achieve this, the EIR must “adequately apprise all interested parties of the
true scope of the project for intelligent weighing of the environmental consequences.”
(City of Santee v. County of San Diego (1989) 214 Cal. App. 3d 1438, 1454–1455.) “An
accurate, stable and finite project description is the sine qua non of an informative and
23
legally sufficient EIR.” (County of Inyo, at p. 193; Guidelines, § 15004, subd. (b) [the
EIR should provide “meaningful information for environmental assessment”].)
Riverside’s decision to define the Project as a new high-voltage power line
delineated the scope of the Project and allowed the public and Riverside to engage in
meaningful analysis and consideration of its environmental impacts. All parties involved
were able to identify the location of the Project, the extent of the Project, and the
environmental impacts of it. The identification of this high-voltage power line as the
Project was indispensible to successful environmental review. Jurupa Valley’s proposed
project definition is too broad and indefinite to afford the public and Riverside adequate
environmental review. Had the Project been defined as “a project to increase the
electrical capacity in Riverside,” it would be entirely unclear what was to be constructed,
where it was to be placed, how the environment would be impacted, and who would be
affected by it. Such a definition is too unstable and evasive of environmental review.
(See San Joaquin Raptor Rescue Center v. County of Merced (2007) 149 Cal. App. 4th
645, 656 [“when an EIR contains unstable or shifting descriptions of the project,
meaningful public participation is stultified. ‘A curtailed, enigmatic or unstable project
description draws a red herring across the path of public input.’ ”].)
Simply defining the Project based on studies conducted in the planning process
leading up to the creation of an EIR does not constitute pre-commitment. As the lead
agency, Riverside was tasked with defining the Project so that appropriate environmental
review could ensue. Riverside successfully accomplished this task. We therefore
conclude Riverside’s identification of the high-voltage power line did not constitute pre-
commitment.
In sum, these routine project planning activities, which involve discussing the
Project with the RPU Board, budgeting for the Project, and defining the Project,
separately and together do not evidence pre-commitment as they are necessary and
routine to achieving CEQA compliance.
24
b. Obtaining Approval from CAISO and FERC Did Not Constitute Pre-
Commitment
Jurupa Valley argues that Riverside’s interaction with CAISO and Federal Energy
Regulatory Commission (FERC) during project planning establish Riverside’s pre-
commitment. As a practical matter, CAISO and FERC approval were essential for
planning the Project as described below.
i. CAISO’s Approval
Jurupa Valley argues that CAISO’s direction to Edison in June 2006 to build a
new connection between Edison’s grid and the City of Riverside constitutes pre-
commitment by Riverside. Jurupa Valley misconstrues CAISO’s relationship with the
parties and the significance of CAISO’s directions to Edison in making this argument.
As mentioned in our description of the facts of this case, CAISO is the independent
electrical grid operator for approximately 80% of California’s power grid. Here, Edison
owns the portion of the power grid at issue (and would own part of the project’s facilities)
and CAISO operates Edison’s facilities. Edison worked in conjunction with Riverside
and RPU to develop and scope the Project to create new facilities to service Riverside.
Nonetheless, Edison must work with CAISO as CAISO would operate the Edison
facilities and as the Project would alter CAISO’s operations.
Jurupa Valley essentially argues that the relationship between Edison and CAISO
and CAISO’s approval of Edison’s plans to extend the grid result in Riverside’s pre-
commitment. Jurupa Valley relies on a quote from a memorandum regarding the
Project’s history, which states: “At a June 2006 [CAISO] Board of Governors meeting,
the CAISO concluded that the proposed interconnection was needed and directed
[Edison] to build the proposed [Riverside Transmission Reliability Project] as soon as
possible and preferably no later than June 30, 2009.” At that meeting, the CAISO Board
specifically gave its approval as to one of three options considered by Edison and
Riverside for the Project. Jurupa Valley argues that “by seeking and obtaining CAISO’s
approval so early on, SCE and Riverside were pigeonholed into constructing the
proposed . . . Project” in accordance with the option approved of by CAISO, i.e. “looping
25
the existing Mira Loma-Vista #1 230 kV line by building 8.25 miles of new 230 kV
double circuit transmission line from the existing Mira Loma-Vista #1 T/L ROW to a
new 230 kV [Edison] interconnection facility with RPU’s new Jurupa Substation in
Riverside.”
We conclude that Edison’s consultation with CAISO does not commit Riverside to
the Project prior to environmental review. Obtaining CAISO’s approval to operate this
proposed addition to the grid is an issue for Edison, which would own part of the new
facilities, to address, and would affect how Edison would operate the Project facilities if
they were ever to be constructed. As pointed out by the superior court, CAISO has no
authority to mandate action by Riverside: Edison owns CAISO-controlled facilities, not
RPU or Riverside. Edison cannot unilaterally commit Riverside, the lead agency, to the
Project simply by discussing and obtaining approval from CAISO regarding its
preference.
ii. FERC Approval and the Interconnection Facilities Agreement
Jurupa Valley asserts that Riverside pre-committed to the Project by entering into
the Interconnection Facilities Agreement with Edison. Jurupa Valley argues: “In the
Interconnection Facilities Agreement, [executed in 2009,] Riverside and SCE agreed
upon specific terms and obligations, including, inter alia, engineering, design, and
construction duties; maintenance obligations; operating duties and procedures;
modifications to facilities; the allocation of costs; metering parameters; and billing and
payment procedures between Riverside and SCE. . . . The Interconnection Facilities
Agreement between Riverside and SCE sets out extensive details that go far beyond the
basic or general terms for planning purposes; instead, the Interconnection Facilities
Agreement further demonstrates Riverside’s pre-commitment to the Project.”
Jurupa Valley mischaracterizes the Interconnection Facilities Agreement and fails
to recognize its purpose in the planning process. Riverside and Edison executed the
Agreement and submitted it to FERC for approval, describing the services to be provided
by Edison pursuant to the Transmission Operator Tariff (the rate to be charged for
electricity). The FERC is “the federal agency charged with regulating transmission and
26
sale of electric energy for resale in interstate commerce.” (In re Electric Refund Cases
(2010) 184 Cal. App. 4th 1490, 1493.) “The Federal Power Act governs the transmission
and wholesale sales of electrical energy in interstate commerce. [Citation.] Pursuant to
its authority under the FPA, FERC has exclusive jurisdiction over interstate wholesale
power rates. [Citations.] The FPA requires that all rates for the transmission and sale of
wholesale electricity be filed with FERC and published for public review. [Citation.]
FERC is obligated to ensure that wholesale power rates are ‘just and
reasonable,’[citation], and applied in a non-discriminatory manner, [citations].”
(California ex rel. Lockyer v. FERC (9th Cir. 2004) 383 F.3d 1006, 1011.) Here, FERC’s
approval was an essential threshold issue for the Project and was decisive as to Edison’s
ability to provide Riverside with power.
In order to obtain FERC approval, the Interconnection Facilities Agreement set
forth the parties’ basic obligations to each other in the event the Project was built.
However, the Agreement does not require the Project to be built in a certain way or at all.
The Agreement clearly acknowledges the necessity for CEQA compliance and analysis.
The Agreement provides that “environmental impact studies” will be completed for the
Project; that “Riverside will act as a lead [CEQA] agency;” and that Riverside will
“perform the necessary environmental review as required by CEQA.” The Agreement
references the requirement to complete CEQA review multiple times, and anticipates that
Riverside’s reimbursement for expenditures associated with the Project is conditioned on
CEQA review. Most importantly, the Agreement does not obligate Riverside to approve
the Project and does not foreclose any alternatives or mitigation measures.
In Cedar Fair, the appellate court considered whether adoption of a term sheet
constituted an approval of a project. The term sheet in Cedar Fair was a 39-page
document that included extensive details concerning a proposal to develop a football
stadium complex for the San Francisco 49ers in Santa Clara. (Cedar Fair, supra,
194 Cal. App. 4th 1150, 1167 at p. 1169.) The appellate court concluded the city’s
approval of the term sheet did not trigger CEQA, despite the large amount of money
already invested by the redevelopment agency and the term sheet’s high level of detail.
27
(Id. at pp. 1167-1173.) As the court explained, “although the term sheet is extremely
detailed, it expressly binds the parties to only continue negotiating in good faith.” (Id. at
p. 1171.) The term sheet “merely ‘memorialize[d] the preliminary terms’ and only
mandate[d] that the parties use the term sheet as the ‘general framework’ for ‘good faith
negotiations.’ ” (Id. at p. 1170.) Under the term sheet, the city and redevelopment
agency expressly retained its sole discretion under CEQA, including deciding not to
proceed with the project. (Ibid.)
Likewise here, although the Interconnection Facilities Agreement contains great
detail regarding the parties’ obligations to each other, these obligations are perspective
and dependent on Riverside’s independent CEQA review. Riverside was not obligated to
approve the Project or forego Project alternatives and mitigation measures pursuant to the
Agreement. We thus conclude that the Agreement did not commit Riverside to the
Project.
c. Modifications to the Project in Response to Public Comment Show that
Riverside Did Not Pre-Commit
Lastly, Jurupa Valley argues that “Riverside pre-committed to the Project as
evidenced by its willingness to contradict its own findings and the evidence in the
administrative record in order to push the Project forward” when it decided to
underground the half-mile of 69 kV subtransmission line adjacent to the airport. As
explained in preceding sections, Riverside chose to underground a very small portion of
sub-transmission line out of necessity to ensure the safe passage of air traffic in the area
adjacent to the airport. Riverside found that undergrounding this small section of
subtransmission line would not cause an increased or new, significant environmental
impact based on the Draft EIR’s previous anticipation of minor undergrounding in its
analysis of the construction impacts, Riverside’s choice of undergrounding materials, and
the location of the proposed undergrounding. We conclude that the decision to
underground a small portion of subtransmission line does not evidence Riverside’s
willingness to “push forward with the project.” Riverside clearly considered the serious
implications of undergrounding and of the public safety hazard posed by overhead
28
subtransmission lines next to the airport. Riverside found that as to this particular stretch
of transmission line, undergrounding was appropriate as it caused no new or increased
environmental impacts and eliminated a serious safety hazard from the Project.
Contrary to Jurupa Valley’s assertions, Riverside’s willingness to make
modifications to the Project in response to public comment indicates that Riverside
thoughtfully engaged and responded to public comment and made informed decisions,
consistent with CEQA’s objectives. (See San Franciscans Upholding the Downtown
Plan v. City and County of San Francisco, supra, 102 Cal.App.4th at p. 695 [stating that
CEQA’s purpose is to guarantee that the public and the decision makers are fully
informed of the environmental impacts, and that feasible alternatives and mitigation
measures are adopted to lessen or avoid adverse impacts].) We conclude that the
allegedly impermissible acts argued by Jurupa Valley failed to individually or
collectively establish pre-commitment.
29
DISPOSITION
The judgment is affirmed. Defendants and Respondents City of Riverside and the
Riverside Public Utilities Department, and Real Party in Interest and Respondent
Southern California Edison are awarded their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
JONES, J. *
We concur:
EDMON, P. J.
ALDRICH, J.
*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
30