East Oakland Stadium Alliance, LLC v. City of Oakland ( 2023 )

Filed 3/30/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
EAST OAKLAND STADIUM
ALLIANCE et al.,
Plaintiffs and Appellants,
v. A166221
CITY OF OAKLAND et al.,
(Alameda County
Defendants and
Super. Ct. No.
Appellants;
22CV009325)
ATHLETICS INVESTMENT
GROUP, LLC, et al.,
Real Parties in Interest
and Appellants.
Oakland’s professional baseball team proposes to construct
a new ballpark and a large, adjoining development featuring
several new commercial and residential buildings. The proposed
building site is currently used largely for parking and storage
activities associated with the Port of Oakland. Among other
issues of public concern, the soil at the project site is
contaminated from long years of industrial use; the ballpark and
development will generate substantial new pedestrian and
1
vehicle traffic in the neighborhood; and the site’s existing uses
must be relocated.
Pursuant to the California Environmental Quality Act
(Pub. Resources Code, § 21000 et seq. (CEQA)),1 the City of
Oakland (City) prepared an environmental impact report (EIR)
for the project. Following the City’s certification of the EIR,
appellants (petitioners) filed petitions for a writ of mandate
challenging the EIR’s compliance with CEQA. In an extensive
written decision, the trial court found inadequate one mitigation
measure designed to address the project’s adverse wind effects,
but it rejected petitioners’ other claims. The judgment required
the City to reconsider and revise the wind mitigation measure
and otherwise denied the petitions.
Petitioners appeal the denial of the bulk of their claims,
while the City, the Oakland City Council, the Port of Oakland
(Port), and the project sponsor, Athletics Investment Group, LLC
(respondents), have filed cross-appeals of the trial court’s
rejection of the wind mitigation measure.2 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Oakland Waterfront Ballpark District Project (project)
proposes an ambitious redevelopment of Howard Terminal, a 50-
acre site within the Port, and five acres of contiguous parcels.
The centerpiece is a 35,000-seat ballpark for the city’s Major
League Baseball team, the Oakland Athletics (A’s), but the
All subsequent statutory references are to the Public
1
Resources Code, unless indicated otherwise.
2Although these entities filed separate notices of cross-
appeal, they joined on the briefs in this court.
2
project also anticipates construction of 3,000 residential units,
270,000 square feet of retail space, 1.5 million square feet of
space for other commercial uses, a performance venue, and up to
400 hotel rooms. There will be parking for 8,900 vehicles, and
nearly 20 acres will be set aside as publicly accessible open space.
It is estimated that the project will take eight years to complete.
Howard Terminal borders an estuary southwest of the
City’s downtown. Portions of the site are currently used for
various commercial maritime activities, but most of the land is
devoted to truck parking and container storage. A rail line
serving passenger and freight traffic runs down the middle of
Embarcadero West, the street forming the northern border of
Howard Terminal.
The City began preparation of an EIR for the project in
November 2018 and issued a draft EIR in February 2021. The
City Council certified the final EIR a year later, adopting
extensive findings. Among these findings was a statement of
overriding considerations, concluding that the project’s benefits
outweighed several significant environmental impacts that could
not be fully mitigated.
Three writ petitions challenging the adequacy of the EIR
were consolidated for hearing. Except with respect to one wind
mitigation measure, the trial court rejected petitioners’ claims,
finding the EIR adequate and the City in compliance with CEQA.
The judgment directed the City to reconsider its adoption of the
wind mitigation measure, but otherwise denied the petitions.
3
DISCUSSION
I. Governing Law
A. CEQA—General Overview3
CEQA “embodies a central state policy to require state and
local governmental entities to perform their duties ‘so that major
consideration is given to preventing environmental damage.’
[Citations.] [¶] CEQA prescribes how governmental decisions will
be made when public entities, including the state itself, are
charged with approving, funding—or themselves undertaking—a
project with significant effects on the environment.” (Friends of
the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th
677, 711–712, italics omitted.)
When the agency responsible for approving a proposed
discretionary project finds substantial evidence that the project
may have a significant impact on the environment, CEQA
requires the agency to prepare and certify an EIR before
approving the project. (Union of Medical Marijuana Patients,
Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1187; § 21100,
subd. (a).) One purpose of the EIR “is to inform the public and its
responsible officials of the environmental consequences of their
decisions before they are made.” (Citizens of Goleta Valley v.
Board of Supervisors (1990) 52 Cal.3d 553, 564.) “The [EIR] must
include a description of the proposed project and its
environmental setting and discussions of (1) the possible
The facts and law applicable to the specific claims raised
3
by petitioners and respondents are discussed as appropriate in
connection with each claim.
4
environmental effects of the project, (2) feasible measures to
mitigate any significant, adverse environmental effects of the
project, (3) the comparative environmental effects of a range of
reasonable alternatives to the proposed project, including a ‘no
project’ alternative, and (4) the cumulative impact of the project’s
various environmental effects.” (County of Butte v. Department of
Water Resources (2022) 13 Cal.5th 612, 627 (County of Butte).) In
this way, an EIR serves “to identify the significant effects on the
environment of a project, to identify alternatives to the project,
and to indicate the manner in which those significant effects can
be mitigated or avoided.” (§ 21002.1, subd. (a).)
The CEQA process, however, “is not solely informational.
It also plays a critical regulatory role, largely through the
mechanism of mitigation measures.” (County of Butte, supra,
13 Cal.5th at p. 642 (conc. & dis. opn. of Cantil-Sakauye, C.J.).)
When an EIR concludes that a project, as proposed, will result in
a significant environmental effect, the EIR must propose
mitigation measures, which are “modifications of the proposed
design and implementation of a project . . . to reduce the project’s
adverse environmental effects.” (County of Butte, at p. 627;
Guidelines, § 15126.4, subd. (a)(1)(A) [an EIR must “identify
mitigation measures for each significant environmental effect
identified in the EIR”].)4 Once identified, the mitigation
measures, if feasible, must be adopted by the lead agency as
4We will cite and refer to CEQA’s implementing
regulations, codified at title 14, division 6, chapter 3 of the
California Code of Regulations, as the “Guidelines.”
5
legally enforceable conditions of the project. (Sierra Club v.
County of Fresno (2018) 6 Cal.5th 502, 524–525 (Sierra Club)
[agencies are required to implement all feasible mitigation
measures]; Guidelines, § 15126.4, subd. (a)(2) [mitigation
measures must be made “fully enforceable” through “legally-
binding instruments”].) Approving a project that omits a feasible
mitigation measure constitutes an abuse of discretion. (Sierra
Club, at p. 526.) A “feasible” mitigation measure is one that is
“capable of being accomplished in a successful manner within a
reasonable period of time, taking into account economic,
environmental, social, and technological factors.” (§ 21061.1;
Guidelines, § 15364.)
When an agency concludes that a proposed project will
result in an environmental effect that cannot be reduced to
insignificance through the application of feasible mitigation
measures, the project may not be approved unless the responsible
agency makes an express finding that “specific overriding
economic, legal, social, technological, or other benefits of the
project outweigh the significant effects on the environment.”
(§ 21081, subd (b); County of Butte, at pp. 627–628.) But even
when a project’s benefits are found to outweigh its significant
environmental effects, “agencies are still required to implement
all mitigation measures unless those measures are truly
infeasible.” (Sierra Club, supra, 6 Cal.5th at pp. 524–525.)
B. Standard of Review
“In general, judicial review of agency actions for CEQA
compliance extends to ‘whether there was a prejudicial abuse of
6
discretion.’ ” (Protecting Our Water & Environmental Resources
v. County of Stanislaus (2020) 10 Cal.5th 479, 495 (County of
Stanislaus).) “ ‘[A]n agency may abuse its discretion under
CEQA either by failing to proceed in the manner CEQA provides
or by reaching factual conclusions unsupported by substantial
evidence. [Citation.] Judicial review of these two types of error
differs significantly: While 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.” ’ ” (Sierra Club, supra, 6 Cal.5th at p. 512.)
We “ ‘review[] the agency’s action, not the trial court’s
decision; in that sense appellate judicial review under CEQA is
de novo.’ ” (County of Stanislaus, supra, 10 Cal.5th at p. 495.)
II. Mitigation of Railroad Impacts
Petitioners first contend that the EIR’s plan for
safeguarding ballpark visitors from rail traffic is, for three
separate reasons, infeasible and ineffective.5
5The first claim petitioners purport to present is that the
“EIR systematically deferred analysis and mitigation.” The
accompanying one-page argument, however, is conclusory and
unsupported by citation to the record. We therefore disregard
this argument, except as mitigation deferral is properly raised in
7
As noted, Howard Terminal is bounded on the north by
railroad tracks that actively serve both passenger and freight
lines. The tracks are unusual in that they run down the middle
of a major street at grade. Traffic gates at intersections are the
only barriers separating the tracks from Embarcadero West and
its cross-streets. As the EIR explained, “[t]he railroad segment
through Jack London District is unique in California in that
passenger and freight trains operate within an urban street
sharing the rail right-of-way with motor vehicles, bicycles, and
pedestrians . . . . [R]ailroad crossing controls and protection are
minimally provided at public street at-grade crossings but no
features exist that preclude people from crossing mid-block or
turning left across the railroad tracks even when crossing
controls are activated.” A study by the City found that an
average of six freight trains and 36 passenger trains use the
tracks daily between the hours of 11:00 a.m. and 11:00 p.m., the
time period when fans will be attending baseball games. These
trains thus present not only a safety hazard to persons visiting
the ballpark, but also the risk that access to the site will be
obstructed by passing trains.
To address these problems, the EIR proposed and the City
adopted a series of mitigation measures, including the
connection with petitioners’ other claims. (See, e.g., United
Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th
142, 153 [disregarding “ ‘conclusory arguments that are not
supported by pertinent legal authority or fail to disclose the
reasoning by which the appellant reached the conclusions he
wants us to adopt’ ”].)
8
installation of fencing on both sides of the tracks for the length of
the project site’s frontage; the elimination of one intersection and
the installation of enhanced safety features at the remainder; and
the construction of two overcrossings, one for bicycles and
pedestrians and a second for vehicles. Although these measures
will improve existing conditions, the EIR found that the project
will present significant and unavoidable environmental impacts
because it will expose the vehicles and pedestrians expected to
cross the tracks at the five remaining at-grade intersections to
the safety hazards created by the railroad tracks.
A. The Multi-Use Path
Petitioners contend that a portion of one of the measures
proposed to mitigate railroad impacts is not feasible. As noted,
the EIR requires fencing on both sides of the tracks to isolate the
railroad corridor from traffic on Embarcadero West and thereby
prevent crossing of the tracks between intersections. The
proposed fence would start at the northwest corner of the site and
extend two blocks beyond the northeast corner.
As part of this measure, the EIR anticipates that a three-
block stretch of the southern lane of Embarcadero West would be
closed to vehicle traffic and “physically separated from the
railroad tracks by a fence to accommodate a multi-use path.” The
proposed location of the multi-use path, however, is within the
right of way of the Union Pacific Railroad Company (UPRR),
which operates the freight line on the tracks. During preparation
of the EIR, UPRR told the City that “[n]o part of the railroad
right of way may be used for the Project. UPRR is preserving the
9
full width of its right of way for future capacity needs and will not
make any of it available for third-party development.” The final
EIR recognized that UPRR’s stated position “would preclude the
multi-use path described in the Draft EIR.” Petitioners rely on
UPRR’s position and the City’s concession in arguing that the
multi-use path is not feasible.
The flaw in this argument is that the mitigation measure
at issue is not the multi-use path. It is the fence. As discussed
above, the EIR proposes to reduce safety risks by requiring
construction of a fence on both sides of the railroad tracks to
prevent pedestrians and vehicles from crossing them outside of
intersections. The multi-use path is an aspect of the envisioned
modification of Embarcadero West, but the path does not itself
contribute to the fence’s mitigation of safety hazards. Rather, the
path appears to be simply an amenity. Indeed, the final EIR
recognizes that the path would be located outside the fence,
“between the fence and the existing buildings,” where it would
play little or no role in hazard mitigation.
Petitioners cite no law suggesting that the infeasibility of a
single feature of a mitigation measure necessarily renders the
entire measure infeasible. With or without a multi-use path, the
fence will have the desired effect of precluding access to the
tracks between intersections, and there is no evidence to suggest
that loss of the path will reduce the effectiveness of the fencing.
Further, the final EIR concludes that UPRR’s position with
respect to its right of way would not necessarily preclude
construction of the fence, which is consistent with UPRR’s
10
insistence that “[f]encing or similarly effective barriers must be
constructed to prevent the public from entering the railroad right
of way at unauthorized locations.” Substantial evidence thus
supports the City’s conclusion that this mitigation measure is
feasible.
B. The Pedestrian and Bicycle Overcrossing
Petitioners next contend that the mitigation measure
requiring construction of an overcrossing dedicated to pedestrians
and bicyclists “will not be effective.”
Construction of an overpass across Embarcadero West will,
in theory, permit pedestrians and bicyclists to enter the project
site without crossing the railroad tracks, thereby avoiding both
the danger and delay posed by passing trains. In part to
encourage use of the overpass, the EIR requires its installation to
be accompanied by improvements to the surrounding streets and
sidewalks “to provide a pedestrian path of travel between
buildings and parking where no sidewalk exists today.” The EIR
anticipates that the overpass will be located near the northeast
corner of the site, which is expected to receive about 60 percent of
the fans entering the ballpark on game days, but a specific
location was not determined because implementation of the
overpass will be subject to the jurisdiction of the California Public
Utilities Commission (CPUC). The EIR concluded that the
overpass will serve between 3,000 and 6,000 persons during the
peak hour on game days. It recognized, however, that although
the overpass “would have the potential to improve safety and
therefore reduce the severity” of the rail hazards, “some travelers
11
to and from the site would continue to use at-grade crossings” at
Embarcadero West intersections.
Relying on a number of public comments criticizing the
EIR’s tentative placement of the overpass at Jefferson Street, a
cross street toward the eastern end of the project site, and taking
issue with the analysis in the technical study on which the
tentative placement and design of the overpass was based,
petitioners claim that “substantial evidence demonstrates” that
the overpass will be ineffective.
Petitioners’ contention misstates the applicable standard of
review. The question before us is not whether substantial
evidence supports a petitioner’s critique of the EIR; it is whether
substantial evidence supports the agency’s conclusions. (Sierra
Club, supra, 6 Cal.5th at p. 512 [“ ‘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” ’ ”].)
The EIR concluded that the overpass would divert some
3,000 to 6,000 visitors from using at-grade crossings on game
days, but it did not contend that the overpass—or, indeed, any
proposed mitigation measures—would solve the unusual
problems created by the at-grade railroad tracks running across
the northern border of the project site. The City acknowledged
this in adopting a statement of overriding considerations
regarding these hazards, concluding that the project’s benefits
12
outweighed the unmitigable hazards presented by the tracks.
The EIR unquestionably contains substantial evidence to support
a finding that the overpass will significantly mitigate the hazards
by diverting thousands of visitors from at-grade intersections, but
the adoption of a statement of overriding considerations makes
clear that the City did not believe the risks will be entirely
alleviated.
Petitioners are critical of the proposed placement of the
overpass, but there does not appear to be an ideal location. None
of the evidence cited by petitioners establishes that an
alternative placement would, all things considered, be preferable,
and the EIR provides rational reasons for its choice.6 Because
substantial evidence supports the conclusion that the tentative
location identified in the EIR will have the mitigating effect
explained in the EIR, we have no legal basis to second-guess the
City. Moreover, precise placement of the overpass—and, indeed,
its very existence—will be up to the CPUC, as the EIR
acknowledges. The City recognized this uncertainty in citing the
CPUC’s authority as one basis for its adoption of a statement of
overriding considerations with respect to rail hazards.
6 The study on which the EIR relied considered four
different overpass locations. Two were found infeasible. The EIR
focused on the Jefferson Street location because it scored highest
on all the factors evaluated by the study, was judged to be
compatible with the existing City grid, and is close to a proposed
transit hub on 2nd Street. But the mitigation measure also
identifies Clay Street “or comparable nearby location” and leaves
the decision to the project sponsor and the CPUC.
13
Petitioners cite City of Maywood v. Los Angeles Unified
School Dist. (2012) 208 Cal.App.4th 362 (City of Maywood), which
considered an EIR prepared in connection with a proposed new
high school. (Id. at p. 371.) As proposed in the notice of
preparation for the EIR, the project required the closure of 58th
Street, a major street running through the proposed campus site.
During the period of EIR preparation, however, the project was
redesigned to incorporate a pedestrian bridge crossing the street,
which would remain open to traffic. (Id. at p. 387.) Although the
EIR addressed traffic safety, neither the project’s consultants nor
the draft EIR addressed the risks created by permitting 58th
Street to divide the campus. (Id. at p. 388.) When the failure
was pointed out in comments on the draft EIR, the final EIR “did
not make any substantive changes to the [draft EIR’s] subchapter
on pedestrian safety. The [agency] also chose not to revise the
pedestrian safety study to consider impacts associated with 58th
Street and the pedestrian bridge.” (Id. at p. 389.) The court
found the EIR inadequate due in part to its failure to address
safety impacts created by the change of plans regarding 58th
Street. (Id. at pp. 395, 436.)
Petitioners point to no deficiency in the EIR’s discussion of
rail hazards comparable to the failure in City of Maywood. The
EIR disclosed and addressed the risks presented by the rail
tracks; petitioners merely criticize the thoroughness of the
discussion and some of its conclusions. Our substantial evidence
standard of review precludes these disputes from serving as a
basis for reversal.
14
C. Failure to Consider Closure of Intersections
Petitioners argue that the EIR failed to consider the
temporary closure of Embarcadero West intersections during
events at the ballpark as a means to mitigate the hazards
associated with the railroad tracks. As respondents argue, this
contention was not properly exhausted.
As noted, the EIR considered a series of physical changes to
Embarcadero West and the surrounding streets to mitigate the
hazards associated with the railroad tracks. At least two
commenters suggested that the City should consider closing
intersections as a further means of reducing those risks. The
first suggestion was relatively summary. (Comment of RailPros
[“The DEIR and appendix do not sufficiently address the
potential for crossing closures to reduce impacts”].) The second
comment, by the Capitol Corridor Joint Powers Authority (JPA),
was more substantial. The JPA suggested that “[t]he only
feasible mitigation for [the risk created by pedestrians crossing
the railroad tracks] is a combination of grade separation or
closure of the railroad crossings.” It therefore urged the City to
“study a combination of grade separation and permanent closure
of all railroad crossings near and adjacent to the Ballpark,”
opining that “without a combination of grade-separation . . . and
permanent closures at all five (5) railroad crossings . . . , the
Project would be imprudent from our perspective.” (Italics
added.) After discussing grade separation in more detail, the
JPA’s comment devoted a paragraph to the claim that “the City is
obligated to fully analyze an alternative involving permanent
15
closure of the five at-grade railroad crossings. This alternative
was impermissibly eliminated from full consideration in the
[draft EIR].” (Italics added.)
In a different portion of the letter, three pages later and in
a section entitled, “Pedestrian and bicycle overcrossing,” the JPA
noted that it was uncertain how many fans would use the
overpass because “[t]o use the overcrossing, users would need to
first go up 26 feet and then down 26 feet,” which might
discourage some. The comment continued, “At a minimum,
measures to encourage use of the overcrossing will be necessary
considering normal human proclivity to seek the fastest way from
one side of the railroad tracks to another. The most effective and
safest way to preclude the possible use of at-grade crossings is by
closing them, whether temporarily or permanently.” (Italics
added.)
The final EIR addressed the permanent closure of the
Embarcadero West intersections, finding it infeasible. Closing
these intersections, the final EIR noted, would turn portions of
four of the crossing streets into cul-de-sacs, interfering with
traffic patterns and isolating from vehicle access a wide variety of
offices and businesses, boat slips, parking facilities, and a fire
station. Closing the fifth intersection would divide a “major
street” connecting downtown Oakland with the waterfront,
requiring “substantial changes to area circulation.” The EIR did
not, as petitioners now urge, consider temporary closure of these
intersections during ballpark events.
16
Our colleagues in Division Five recently summarized the
CEQA exhaustion requirement: “ ‘ “In order to attack a decision
that is subject to CEQA, the alleged grounds for noncompliance
must have been presented to the public agency . . . .” ’ ‘ “[T]he
objections must be sufficiently specific so that the agency has the
opportunity to evaluate and respond to them.” ’ [Citation.]
This requirement is known as the exhaustion doctrine.
[Citation.] The rationale behind this rule is that the public
agency should have the opportunity to receive and respond to
articulated factual issues and legal theories before its actions are
subjected to judicial review. [Citation.]’ [Citation.] [¶] Generally
speaking, ‘ “ ‘ “bland and general references to environmental
matters” ’ ” ’ or ‘ “ ‘ “isolated and unelaborated” ’ ” ’ comments do
not satisfy the exhaustion requirement; rather, the ‘ “ ‘ “exact
issue” ’ ” ’ must have been presented to the agency. [Citations.]
At the same time, courts have acknowledged less specificity is
required to preserve an issue for appeal in an administrative
proceeding than in a court proceeding because parties are not
generally represented by counsel before administrative
bodies . . . .” (Save the Hill Group v. City of Livermore (2022)
76 Cal.App.5th 1092, 1104–1105.) In essence, “[t]o satisfy the
exhaustion doctrine, the objections must ‘fairly apprise[]’ the
agency of the purported defect in the EIR.” (Planning &
Conservation League v. Castaic Lake Water Agency (2009)
180 Cal.App.4th 210, 251.)
We agree with respondents that the single word
“temporarily” in the JPA’s comment did not fairly apprise the
17
City that the JPA was proposing temporary closure of the
intersections as a mitigation measure independent of permanent
closure. In so holding, we recognize that the JPA comment did
suggest that “[t]he most effective and safest way to preclude the
possible use of at-grade crossings is by closing them, whether
temporarily or permanently.” Yet in determining whether this
mention fairly apprised the City of the issue, it is necessary to
consider the context. This sentence came toward the close of a
letter primarily faulting the City for failing to consider two
specific mitigation measures: some form of grade separation at
each of the intersections or the permanent closure of the
intersections without grade separation. The comment discussed
each of these issues at length in separate paragraphs, and each of
the several mentions of closure referred specifically to
“permanent closure” of the intersections. The final mention of
“closing them, whether temporarily or permanently,” which
occurred three pages later in a separate portion of the letter,
gives no indication that it was intended to refer to a mitigation
measure different from that urged in the remainder of the
comment. On the contrary, the single reference to temporary
closure was an “isolated and unelaborated comment.” (Banker's
Hill, Hillcrest, Park West Community Preservation Group v. City
of San Diego (2006) 139 Cal.App.4th 249, 282.) Merely adding
the word “temporarily” to a sentence that otherwise reiterated a
point made several times in the comment was insufficient to
fairly apprise the City that the JPA considered temporary closure
to be an issue separate and apart from permanent closure.
18
Petitioners rely on Los Angeles Unified School Dist. v. City
of Los Angeles (1997) 58 Cal.App.4th 1019 (Los Angeles Unified),
but that case is inapposite. In Los Angeles Unified, the City
prepared an EIR addressing a proposed plan for development of a
portion of the San Fernando Valley. (Id. at p. 1022.) The school
district argued that the EIR failed to consider measures to
mitigate the impact of increased air pollution on community
schools, such as “the feasibility of air conditioning and filtering at
the schools so the windows could be closed against the polluted
air.” (Id. at p. 1028.) There was no dispute that these mitigation
measures were suggested by the school district in its comments
on the EIR, and the city did not contend that the school district
had failed to exhaust the claim. (Id. at pp. 1028–1029.) Further,
there was no suggestion that the school district’s comment was
raised in a manner analogous to the JPA’s single passing mention
of temporary closings.
In sum, we are unpersuaded by petitioners’ challenge to the
EIR’s discussion of railroad-related impacts and mitigation.
III. Displacement of Howard Terminal Activities
As approved, the project will displace all current activities
at Howard Terminal and require their relocation. Petitioners
contend the EIR did not adequately analyze the environmental
consequences of this displacement.
A. Seaport Parking Assumptions
Petitioners first argue that the EIR’s assumption that
displaced overnight truck parking can relocate to nearby lots—an
assumption made for the EIR’s analysis of the impact of such
19
displacement on air quality—is not supported by substantial
evidence.
The primary activities displaced by the project are parking
for trucks and container storage, but Howard Terminal is also the
site of a longshoreperson training facility, a vessel berth used for
maintenance and storage, and facilities for truck repair. The
project will require all these activities to find a new home. As the
final EIR recognized, because the economic impact of
displacement “is not in and of itself considered a significant
impact for CEQA purposes,” the EIR “is not required to identify
potential relocation sites . . . as mitigation.” (See Guidelines,
§ 15131, subd. (a); Gray v. County of Madera (2008)
167 Cal.App.4th 1099, 1120–1121 (Gray) [“Economic and social
effects may be considered, but by themselves, are not treated as
significant effects on the environment”].) To evaluate the
environmental impact of displacement, however, the EIR was
required to make reasonable assumptions about the manner in
which relocation would occur.
In its discussion of the impact of displacement on local air
quality, the EIR assumed that trucks currently parking at the
project site would find sufficient alternative overnight parking
within the Port. The assumption was premised on the findings of
a 2020 study of overnight truck parking needs at the Port
through the year 2050, which was included in a broader study of
future Port activities (Seaport Forecast). Asked to update an
earlier survey which found that 30 acres of truck parking space
at the Port would be adequate for “foreseeable conditions,” the
20
Seaport Forecast concluded that even assuming strong growth in
Port traffic, overnight parking needs would continue to be
accommodated on 30 acres through 2050.
Based on the Seaport Forecast, the EIR assumed that 30
acres of parking would be necessary to accommodate total
overnight parking needs. The EIR located that acreage at two
sites within the Port. The first was 15 acres at the
“Roundhouse,” an existing facility to the west of Howard
Terminal that was already used for parking. The second site was
15 acres of then-unused space at the former Oakland Army Base
(OAB), which was projected to open in 2021. The City had earlier
committed to making the OAB site available for Port truck
parking and ancillary maritime services in connection with the
redevelopment of OAB. As the final EIR explained, the OAB
facilities occupy 16.7 acres and would provide “a range of support
services for trucking companies,” including “areas for short-term
and overnight truck parking.” Because trucks currently parking
at Howard Terminal should find sufficient overnight parking at
one of these two locations, the EIR concluded, relocation of
parking “would not create new or additional [air quality]
impacts.”
A comment by the Bay Area Air Quality Management
District (BAAQMD) observed that the Roundhouse site is at
capacity and, disregarding the EIR’s reference to the OAB site,
contended that “there are no known plans to develop new or
additional parking facilities.” CalTrans was similarly concerned
that “there is a significant shortage in truck parking options” at
21
the Port already. Based primarily on these comments,
petitioners argue that “there was no evidence that the combined
acreage of the Roundhouse and OAB could absorb the parking
uses displaced from Howard Terminal.”
The Seaport Forecast provides the necessary substantial
evidence to support the EIR’s assumption. As the EIR explained,
the Seaport Forecast concluded that overnight parking needs at
the Port in 2050 would be accommodated by 30 acres of parking
space. The EIR relied on the availability of the necessary 30
acres between the Roundhouse and the new OAB site to satisfy
those needs. The Seaport Forecast supports the EIR’s conclusion
that, once the Howard Terminal parking facilities are closed, the
anticipated demand for overnight parking at the Port can be
satisfied by the combined acreage of these two facilities.
Petitioners cite no evidence in the record that casts doubt on the
conclusions of the Seaport Forecast regarding future parking
needs. Therefore, combined with the EIR’s recognition that the
Roundhouse and OAB are expected to provide a total of 30 acres
of parking, the Seaport Forecast provides substantial evidence to
support the assumption that displaced parking can be
accommodated elsewhere within the Port. (See, e.g., City of Long
Beach v. City of Los Angeles (2018) 19 Cal.App.5th 465, 480–481
[projections by experts may constitute substantial evidence to
support an EIR’s assumptions].)
Petitioners argue that the commenters’ observation that
the Roundhouse is already at capacity casts doubt on the EIR’s
assumption that displaced parking can be accommodated by the
22
Roundhouse and the OAB sites, arguing that there is no evidence
in the record that the OAB site can accommodate all trucks
currently using Howard Terminal. As noted above, the EIR’s
approach to the analysis of future parking needs relied on the
estimates of the Seaport Forecast, and the analysis was
reasonable and supported by substantial evidence. Petitioners
implicitly argue the EIR should have taken a different approach,
calculating the acreage necessary to accommodate the current
users of Howard Terminal parking, determining the available
capacity at the Roundhouse, and adding to that the 15 acres of
new capacity at OAB. The EIR certainly could have taken this
approach, but it was not required to do so. (Rodeo Citizens Assn.
v. County of Contra Costa (2018) 22 Cal.App.5th 214, 226
[“ ‘ “CEQA gives lead agencies discretion to design an EIR
. . . .” ’ ”].)
If there were evidence in the record suggesting that the
newly available space at OAB is inadequate to accommodate the
parking displaced from Howard Terminal, petitioners’ argument
might have more force. The comments relied on by petitioners,
however, disregarded entirely the EIR’s reference to the OAB
site, commenting only that Roundhouse had no additional
capacity.7 But even if this is true, the OAB site will provide 15
acres of space to absorb parking displaced at Howard Terminal.
Neither the comments on which petitioners rely nor any other
We note that one of the comments cited by petitioners
7
undermines their contention that the Roundhouse is already at
full capacity.
23
evidence in the record suggests that the parking needs created by
the closure of Howard Terminal cannot be accommodated at the
new OAB site.
Petitioners also argue that the study is a “projection of
future parking needs” that “does not address the current parking
capacity at the Port, nor does it guarantee that any space will be
available at the Roundhouse (or for that matter at the OAB)
when activities are displaced from Howard Terminal.” (Italics
omitted.) While this is literally true, the projected future needs
in 2050 can reasonably be assumed to exceed present needs.
Even if the Roundhouse is currently at capacity, the OAB site
provides an additional 15 acres of parking space, and there is no
evidence in the record to suggest the OAB site is presently full or
will be filled during the relevant time.8
B. Impacts of Relocation Outside the Port
Petitioners contend that the EIR inadequately analyzed air
quality impacts because it declined to consider the impact of
current Howard Terminal users, primarily parking tenants, that
will relocate outside the Port.9 The EIR disregarded such
The fact that the Roundhouse might be converted to
8
another use at some point in the future, as petitioners also argue,
is speculative, as there is nothing in the record to suggest that
the Roundhouse will be converted to other uses in any foreseeable
time period.
All current activities at Howard Terminal will be required
9
to relocate. In general terms, petitioners fault the EIR for
disregarding the air quality impact of this relocation, but their
analysis focuses exclusively on the impact of relocated truck
parking. Given the absence of evidence that the relocation of
24
impacts because it concluded that attempting to analyze such
relocation was speculative.
The EIR contained two separate analyses of the project’s
impact on air quality, differing in the geographic area over which
the impacts were measured. The first of these analyses
addressed the impact of the project on air quality in the
immediate vicinity of the project site and assumed that all
displaced parking would relocate to the Roundhouse, which is
nearly adjacent to the project site. This assumption was selected
because it presented a “ ‘worst case’ scenario for purposes of the
health risks associated with [toxic air contaminants] emissions”
in the immediate area. The failure to analyze the impact of
parking displaced to locations outside the Port could not have had
a material impact on this analysis, and petitioners do not appear
to contend otherwise. Any diversion of parking activities to more
distant locations would reduce the project’s localized
environmental impact.10
The second analysis considered the impact of the project on
air quality in the San Francisco Bay Area Air Basin, which
includes Alameda and eight nearby counties. In discussing
pollutant emissions associated with existing users of Howard
Terminal, the EIR noted that it did not subtract these emissions
other activities will have a measurable impact on air quality, we,
like petitioners, focus on parking.
10 In this connection, petitioners contend that the EIR erred
in subtracting emissions from eliminated Howard Terminal
activities in the analysis of localized impacts. Because those
activities are displaced to other locations within the Port,
however, we find no error in this approach.
25
from the analysis, despite their need to relocate, because it
assumed the activities would continue to occur elsewhere in the
greater Bay Area, even if not at the Port itself. Further, the
analysis did not consider any additional emissions that might be
associated with the relocation of these activities outside the Port
because, as the final EIR explained, “it is unknown where the
tenants would relocate to if they do not stay within the Seaport.”
The final EIR characterized these possible changes as
“speculative,” given the difficulty of predicting how current users
of Howard Terminal services would respond to the displacement.
Petitioners dispute the EIR’s characterization of parking
relocation as speculative and argue that it should have been
considered because longer distances traveled by relocated
truckers might generate greater emissions.
Specifically with respect to truckers who elect to relocate
outside the Port, the final EIR explained that “the lack of specific
and reliable information sources on where existing truck parking
tenants would locate to makes any assumptions of relocation
areas speculative. . . . Surveys of existing tenants and drivers
could not be utilized because the information would not be
reliable or static, as tenants and drivers change over time,
responses would not be binding or capable of confirmation, and
could change before the start of Project construction/lease
termination if the Project is approved. In addition, this is a
dynamic industry with a mix of large trucking companies, small
trucking companies, and independent owner-operators that
frequently change their business operations in response to
26
market conditions and other factors.” Particularly given the
availability of alternative parking within the Port, we find the
EIR’s conclusion that there is no reliable method to determine
the number of truckers who will elect to relocate or the site of
their eventual relocation to be reasonable and supported by the
administrative record.
When the environmental impact from a particular project
feature cannot be reliably ascertained and estimated, it is
properly characterized as speculative. In Rodeo Citizens Assn. v.
County of Contra Costa, supra, 22 Cal.App.5th 214, for example,
a refinery sought approval to install equipment that would
permit the refinery to capture and sell butane and propane as a
byproduct of its operations. (Id. at pp. 217–218.) The petitioner
contended that the EIR prepared in connection with the permit
approval was inadequate because it failed “to quantify the
greenhouse gas emissions from the downstream uses of the
recovered propane and butane.” (Id. at p. 226.) The court held
that the agency properly declined to analyze these emissions as
speculative. (Id. at pp. 226-227.) As the court explained, it could
not be assumed that the propane and butane would be burned
because these chemicals have significant non-fuel uses. (Id. at
p. 227.) Further, because of changing market conditions,
“historical market data would be an unreliable predictor of the
future” regarding the manner in which the butane and propane
would be used. (Ibid.) As a result, the court held, “the lead
agency reasonably determined that further analysis of the
27
potential impacts was impractical and not required.” (Id. at
p. 228.)
Rodeo Citizens is illustrative here. As previously noted, the
EIR reasonably determined that sufficient parking would be
available near the project site to accommodate the displaced
trucks. (Section III.A, ante.) Although the EIR recognized the
likelihood that some truck parking might nonetheless relocate
outside the Port, it concluded that the extent and character of
relocation could not be reliably determined at this time and any
attempt to estimate the extent of relocation was, therefore,
speculative. For the reasons stated above, we find substantial
evidence to support that conclusion.
IV. Air Quality Analysis
A. Emergency Generator Emissions
Petitioners contend that the EIR’s analysis of emissions
from emergency electricity generators at the project site was
inadequate.
The EIR’s air quality analysis “conservatively” assumed
that the project would include 17 new emergency generators, one
each at the ballpark and the mixed-use buildings. The analysis
assumed that these generators would run for 50 hours per year, a
figure chosen because it represented the maximum time allowed
by California regulations for annual testing and maintenance of
such generators. To limit emissions from the generators, the EIR
included a mitigation measure restricting their annual testing
and maintenance to a maximum of 20 hours, 30 hours less than
the maximum permitted.
28
An EIR comment contended that the estimated time for
operation of the generators should have been 150 hours, based on
a Bay Area Air Quality Management Board (BAAQMD) policy
document that presumes, in determining the applicability of
certain agency regulations, 100 hours of annual generator use in
addition to the time for testing and maintenance. The policy
explained that “100 hours represents a reasonable worst-case
assumption regarding the amount of time during any given year
that a facility could have to operate without outside power.”
The final EIR rejected the claim that it should follow the
BAAQMD model, asserting that the EIR was required only to
assess “emissions which occur on an annual basis,” not
“ ‘emissions that will only occur infrequently when emergency
conditions arise.’ . . . The annual hours of operation used in the
Draft EIR are based on reasonably foreseeable future hours of
operations, not on the hypothetical maximum hours of operation
used for permit regulatory purposes.” The final EIR recognized
that regular power shutoffs, requiring the predictable use of
generators, do occur during times of wildfire risk in parts of the
Bay Area that are designated “high fire risk areas.” The project
site is not so designated.
Petitioners characterize the EIR as assuming the
generators would operate for 50 hours of testing and
maintenance annually, while allocating no time for actual
emergency use, and argue that this assumption was
unreasonable. We find no inadequacy in the EIR’s analysis of
this issue.
29
“ ‘CEQA requires that an EIR make “a good faith effort at
full disclosure.” [Citation.] “An EIR should be prepared with a
sufficient degree of analysis to provide decisionmakers with
information which enables them to make a decision which
intelligently takes account of environmental consequences.” ’ ”
(Save the El Dorado Canal v. El Dorado Irrigation Dist. (2022)
75 Cal.App.5th 239, 264 (El Dorado.) An EIR “is required to
study only reasonably foreseeable consequences of” a project.
(High Sierra Rural Alliance v. County of Plumas (2018)
29 Cal.App.5th 102, 125.) “CEQA does not require an agency to
assume an unlikely worst-case scenario in its environmental
analysis.” (Id. at p. 126.)
The final EIR accurately characterized the City’s burden:
To analyze the reasonably foreseeable operation of the emergency
generators. (El Dorado, supra, 75 Cal.App.5th at p. 264.) For
that reason, if the annual need for emergency generator use is
reasonably foreseeable, the EIR was not entitled to disregard
such use merely because it would occur at unpredictable times.
The EIR acknowledged as much in recognizing the foreseeability
of annual power shutoffs in high fire risk areas. And as
petitioners argue, it is likely that power shutoffs will occur at
some point during the assumed 30-year life of the project’s
buildings, requiring use of the generators. Neither the EIR nor
petitioners, however, identify any circumstances that make
regular emergency use of the generators reasonably foreseeable
at the project site. Petitioners merely argue the obvious—that
30
“shutoffs necessitating use of the emergency generators could
occur for reasons other than fires.”
Yet even if some annual emergency use of the generators is
reasonably foreseeable, we are inclined to conclude that the EIR
made appropriate allowance for such use. Its adoption of 50
hours as an appropriate estimate of annual running time was
based on the maximum time permitted for testing and
maintenance under California regulations. The time actually
necessary for testing and maintenance is presumably somewhat
less than this maximum, as reflected in the EIR’s adoption of a
mitigation measure allowing only 20 such hours of use. The
EIR’s estimate of 50 hours of annual operating time therefore
included a cushion of 30 hours for emergency operation.
Although the EIR did not purport to allot time for emergency
operation, its analysis, as a practical matter, appears to have
done so.
We are not persuaded otherwise by petitioners’ citation to
the BAAQMD policy. As the policy document states, its estimate
of 100 hours is a worst-case assumption that is applicable
throughout the Bay Area. As noted in the EIR, some parts of the
Bay Area are subject to predictable, sustained power outages
undertaken to reduce the risk of fire, and BAAQMD’s generally
applicable assumption was presumably calculated to take such
outages into account. The EIR was required to make neither a
generally applicable nor a worst-case assumption; rather it was
required to make a reasonable estimate of likely annual use of
the generators at the project site. It did so.
31
B. Greenhouse Gas Mitigation
Petitioners contend that the EIR improperly deferred
mitigation of the project’s greenhouse gas (GHG) emissions.
As the EIR recognized, Assembly Bill No. 734 (Stats. 2018,
ch. 959, § 2), a state law enacted to speed judicial review of any
CEQA challenge brought in connection with the project, requires
the City to incorporate various measures to reduce GHG
emissions and prohibits the project from causing “any net
additional emissions of greenhouse gases.” (§ 21168.6.7,
subds. (a)(3)(A)(ii), (b), (d)(3); see generally, Pacific Merchant
Shipping Assn. v. Newsom (2021) 67 Cal.App.5th 711, 719–720
[addressing § 21168.6.7].) Consequently, as a standard for
finding no significant environmental impact from GHG
emissions, the EIR required that the project emit, over its 30-
year life, no net additional GHGs than are currently emitted in
connection with the A’s activities. The EIR’s environmental
impact analysis concluded that, without mitigation, the project
would fail to meet this standard, producing substantial net
additional emissions annually throughout its 30-year projected
lifespan.
To reduce GHG emissions to the significance standard of no
net additional emissions, the EIR adopted a single mitigation
measure. Mitigation Measure GHG-1 prohibits the City from
approving any construction-related permit for the project unless
the project sponsor has “retain[ed] a qualified air quality
consultant to develop a Project-wide GHG Reduction Plan” that
“shall specify anticipated GHG emission reduction measures
32
sufficient to reduce or offset these emissions . . . , such that the
resulting GHG emissions are below the City’s ‘no net additional’
threshold of significance.”
Mitigation Measure GHG-1 describes in detail the contents
of the required emissions reduction plan, including the manner in
which emissions are to be measured and estimated. Emission
reduction measures must be specified separately for each project
phase and must be “verifiable and feasible to implement,” and the
plan is required to identify the person or entity responsible for
monitoring each reduction measure. The plan must incorporate
the EIR’s air quality mitigation measures and must adopt other
on-site and off-site emissions reduction measures from a detailed,
five-page list as necessary to meet the significance standard. In
addition to these specific emissions reduction measures,
Mitigation Measure GHG-1 identifies several other written
sources for other possible GHG reduction measures.
Further, the mitigation measure provides detailed
instructions for implementing and monitoring the plan, including
requiring an annual report summarizing the plan’s
implementation and compliance. The plan must be updated at
each phase of development, demonstrating with each update that
the goal of no net additional emissions has been met.
“The general rule is that an EIR is required to provide the
information needed to alert the public and the decision makers of
the significant problems a project would create and to discuss
currently feasible mitigation measures.” (Sierra Club, supra,
6 Cal.5th 502, 523.) Prior to 2019, the Guidelines generally
33
prohibited the deferral of mitigation measures, stating that
“[f]ormulation of mitigation measures should not be deferred
until some future time. However, measures may specify
performance standards which would mitigate the significant
effect of the project and which may be accomplished in more than
one specified way.” (Former Guidelines § 15126.4, subd. (a)(1)(B);
see Cal. Code Regs., tit. 14, § 15126.4, Register 2010, No. 8 (Feb.
19, 2010), p. 690.) By the time the EIR was circulated in 2021,
the guidelines had been amended to permit an agency to develop
the “specific details of a mitigation measure” after project
approval “when it is impractical or infeasible to include those
details during the project’s environmental review.”11 (Guidelines,
§ 15126.4, subd. (a)(1)(B) (Section 15126.4).) In such
circumstances, deferral of mitigation details is permitted if the
agency “(1) commits itself to the mitigation, (2) adopts specific
performance standards the mitigation will achieve, and (3)
identifies the type(s) of potential action(s) that can feasibly
achieve that performance standard and that will [be] considered,
analyzed, and potentially incorporated in the mitigation
measure.” (§ 15126.4, subd. (a)(1)(B); see Save Our Capitol! v.
Department of General Services (2022) 85 Cal.App.5th 1101, 1134
(Save Our Capitol!).)
Because petitioners do not challenge the City’s implicit
conclusion that it was impractical or infeasible to formulate the
details of the GHG mitigation measure at the time the EIR was
11See Cal. Code Regs., tit. 14, § 15126.4, Register 2019, No.
2-Z (Jan. 11, 2019), p. 78.
34
prepared, we evaluate the GHG mitigation measure under the
standards established by Section 15126.4.12
Mitigation Measure GHG-1 satisfies the three
requirements of Section 15126.4. First, there is no question that
the EIR commits the City to the mitigation measure. By its
terms, the measure prohibits the approval of any permit allowing
the project sponsor to proceed with construction until the GHG
mitigation plan is formulated. The same requirement applies
with respect to the updates required prior to commencement of
subsequent phases of the project; no phase can proceed without
an appropriate update. To assist in the City’s “review and
approval of the Plan” and the updates, the City is required to
retain a “third-party expert,” paid for by the project sponsor. And
of course, compliance with the no net additional emissions
standard is mandated by statute. (§ 21168.6.7, subd. (b).)
Second, Mitigation Measure GHG-1 adopts a specific
performance standard that the mitigation will achieve: The
requirement in Assembly Bill No. 734 that the project will result
in no net additional GHG emissions above those generated by the
current activities of the project sponsor.13 The EIR describes in
detail the manner of calculating existing GHG emissions from the
12 Interpreting of the requirements of Section 15126.4,
subdivision (a)(1)(B) is an issue of law that we review de novo.
(Sierra Club, supra, 6 Cal.5th at p. 512.)
13 As the EIR states, “The net additional GHG emissions
associated with the proposed Project is defined as the difference
in emissions between the A’s related existing emissions and the
Project’s total operational emissions, including construction
emissions amortized over the lifetime of the Project.”
35
project sponsor’s current activities and quantifies these
emissions. In 2018, the baseline year, the activities resulted in
the emission of 8,580 million tons of carbon dioxide annually.
Holding project GHG emissions below this level is therefore the
specific performance standard the project must meet.14 In
addition, the EIR’s analysis quantifies the GHG emissions that
are expected from the project in the absence of mitigation, with
any amount above the 8,580 million ton baseline constituting the
quantitative target for GHG emission reductions.
Third, Mitigation Measure GHG-1 “identifies the type(s) of
potential action(s) that can feasibly achieve that performance
standard and that will be considered, analyzed, and potentially
incorporated in the mitigation measure.” (§ 15126.4,
subd. (a)(1)(B).) Mitigation Measure GHG-1 first sets out a series
of reduction measures that must be incorporated into the plan,
including adoption of the EIR’s air quality and transportation
mitigation measures, gold certification from the United States
Green Building Council for the ballpark and all subsequent
buildings, extensive electric vehicle charger installation, and
electrification of at least 50 percent of all residential units. In
addition, the project sponsor is required to include an extensive
series of further reduction measures “as necessary to meet the
requirements of this mitigation measure,” including specific on-
site measures to reduce emissions from operations,
14The maximum permitted emissions are actually adjusted
downward over time to account for predicted reductions in
emissions caused by increased carbon efficiency.
36
transportation, solid waste, water and wastewater, and
landscaping, and off-site measures to reduce energy and
transportation emissions and increase carbon sequestration.
Mitigation Measure GHG-1 also identifies several written sources
for other potential reduction measures.
Petitioners recognize the general rule articulated by
Section 15126.4, but they argue that the EIR’s mitigation
measure does not commit the City to a “specific performance
standard,” citing Communities for a Better Environment v. City of
Richmond (2010) 184 Cal.App.4th 70 (Communities), and they
otherwise fault Mitigation Measure GHG-1 as inadequate.15
The project proposed in Communities was the addition of
new equipment to a petroleum refinery. (Communities, supra,
184 Cal.App.4th at pp. 76–77.) The draft EIR recognized that the
project could result in a net increase in GHG emissions of nearly
1 million tons per year, but both the draft and final EIRs declined
to find this effect significant. (Id. at p. 90.) In response to
15 We recognize that Communities was decided under the
earlier version of Section 15126.4, which generally prohibited
deferral of mitigation, while the current version expressly
authorizes deferral of mitigation details. Although the guideline
amendment was intended to codify judicial decisions regarding
mitigation deferral, only some of these decisions had been issued
at the time Communities was decided, and the factors
enumerated in the current guideline had not been articulated in
those decisions in precisely the same way that they were adopted
in the amended guideline. (See California Natural Resources
Agency, Final Statement of Reasons for Regulatory Action,
Amendments to the State EQA Guidelines, OAL Notice File
No. Z-2018-0116-12, November 2018, at pp. 43–45.) In any event,
all parties agree that Communities remains valid law.
37
vigorous public objection, the agency issued an amended EIR
finding the increase in emissions to constitute a significant
environmental impact and adopting a mitigation measure
requiring the project sponsor, within a year after project
approval, to “submit to the City, for approval by the City Council,
a plan for achieving complete reduction of GHG emissions up to
the maximum estimated . . . GHG emissions increase over the
[existing level].” (Id. at p. 91.) The mitigation measure required
the sponsor to consult an independent expert in formulating the
plan and listed “a handful of cursorily described mitigation
measures for future consideration that might serve to mitigate”
the emissions. (Id. at pp. 92–93.)
Communities held the mitigation measure inadequate for
several reasons. First, the court noted that “reliance on tentative
plans for future mitigation after completion of the CEQA process
significantly undermines CEQA’s goals of full disclosure and
informed decisionmaking.” (Communities, supra,
184 Cal.App.4th at p. 92.) The court also faulted the content of
the mitigation measure, explaining that “the final EIR merely
proposes a generalized goal of no net increase in greenhouse gas
emissions,” with a list of possible mitigation measures that were
“nonexclusive, undefined, untested and of unknown efficacy.” (Id.
at p. 93.) Moreover, the court noted that “[t]he only criteria for
‘success’ of the ultimate mitigation plan adopted is the subjective
judgment of the City Council, which presumably will make its
decision outside of any public process a year after the Project has
been approved.” (Ibid.) In short, “the lead agency . . . delayed
38
making a significance finding until late in the CEQA process,
divulged little or no information about how it quantified the
Project’s greenhouse gas emissions, offered no assurance that the
plan for how the Project’s greenhouse gas emissions would be
mitigated to a net-zero standard was both feasible and
efficacious, and created no objective criteria for measuring
success.” (Id. at p. 95.)
We decline petitioners’ invitation to construe Communities
as holding that all mitigation measures finalized after project
approval are invalid. As a threshold legal matter, Section
15126.4, subdivision (a)(1)(B) now expressly states that “specific
details of a mitigation measure . . . may be developed after project
approval when it is impractical or infeasible to include those
details during the project’s environmental review,” provided the
agency meets the conditions discussed above. The guideline did
not contain that authorization at the time Communities was
decided. The question under Section 15126.4 in its current
iteration is therefore whether the conditions specified in the
guideline are met, not whether delayed finalization is permitted
at all. (See, e.g., Save Our Capitol!, supra, 85 Cal.App.5th at
p. 1134 [recognizing that CEQA “authorizes relying on a future
plan as a mitigation measure” if the guideline’s requirements are
met]; King & Gardner Farms, LLC v. County of Kern (2020)
45 Cal.App.5th 814, 856 (King & Gardner) [“the general rule is
not absolute and ‘ “there are circumstances in which some aspects
of mitigation may appropriately be deferred” ’ ”].)
39
Relying on Communities and POET, LLC v. State Air
Resources Bd. (2013) 218 Cal.App.4th 681, 736, 739–740 (POET),
petitioners also argue that “no net increase” can never be an
acceptable performance standard. Again, we disagree. The
mitigation measure rejected in Communities was not inadequate
because it required no net increase in GHG emissions. Rather, it
failed to meet the requirement of a specific performance standard
because the mitigation measure called for a plan that would limit
increases in GHG emissions by an amount “up to” no net
additional emissions, with the ultimate acceptable reduction left
to the discretion of the City Council. (Communities, supra,
184 Cal.App.4th at pp. 91, 93.) As a result, the only enforceable
requirement in the mitigation measure was that the plan reduce
GHG emissions to a level that satisfied that body’s “subjective
judgment.” (Id. at p. 93.) Communities therefore accurately
labeled the purported standard as merely a “generalized goal.”
(Ibid.)
In contrast, Mitigation Measure GHG-1 requires a plan
that will achieve no net additional emissions, a standard chosen
because it reflects the statutory requirement of Assembly Bill
No. 734. Because the current level of emissions is known,
quantified, and reported in the EIR, the requirement of “no net
additional emissions” is, in practice, no different from a
quantitative cap on emissions set at the current level. A
quantitative cap is surely a specific performance standard, unlike
the non-binding, generalized goal of Communities.
40
The adoption of a clear standard reflects the City’s
commitment to achieving the mitigation required by Assembly
Bill No. 734. Again, this contrasts with the hesitancy of the lead
agency in Communities, demonstrated by its initial resistance to
finding the increased GHG emissions to constitute a significant
environmental impact and its half-hearted adoption of
mitigation, which left enforcement to the discretion of the City
Council. (Communities, supra, 184 Cal.App.4th at p. 93.) There
is no reason to doubt the City’s commitment to achieving the
statutory standard. Mitigation Measure GHG-1 requires nearly
constant reporting, updating, and evaluation of the plan to
ensure that it achieves the necessary emissions reduction.
Importantly, again in contrast to the EIR in Communities,
Mitigation Measure GHG-1 did not merely suggest for
consideration a handful of vague measures of uncertain efficacy.
As noted, it listed and fully described five pages of detailed
measures, some of which are mandatory and all of which must be
implemented if necessary to prevent additional emissions. It is
not the case, as suggested by petitioners, that the EIR leaves
specific mitigation measures to future determination. Rather, as
permitted by Section 15126.4, subdivision (a)(1)(B), the
mitigation measure leaves only the “specific details of a
mitigation measure” for later determination. In short, the
mitigation measure represents a good-faith attempt to ensure no
increase in GHG emissions while coping with the uncertainties
created by years of construction, development, and the
anticipated evolution of GHG reduction technology.
41
POET, supra, 218 Cal.App.4th 681, does not compel a
different result. POET was a CEQA challenge to the state Air
Resources Board’s (ARB) formulation of low carbon fuel
standards regulations. (Id. at p. 697.) As part of those
regulations, ARB sought to promote the use of biodiesel fuel. (Id.
at p. 732.) Although recognizing that combustion of biodiesel
creates a greater amount of nitrogen oxides (NOx) than ordinary
diesel, in its proposed regulations, ARB staff “ ‘assumed’ ” there
would be no increase in NOx emissions because “ ‘staff is
currently conducting an extensive test program for biodiesel and
renewable diesel and will follow that effort with a rulemaking to
establish specifications to ensure there is no increase in NOx.’ ”
(Ibid.) The ARB therefore deferred final rulemaking regarding
use of biodiesel. (Id. at p. 733.)
Citing Communities, the POET court concluded that ARB’s
statement that “future rulemaking will ‘establish specifications to
ensure there is no increase in NOx’ ” failed to articulate “specific
performance criteria,” as required by CEQA. (POET, supra,
218 Cal.App.4th at pp. 739–740.) As the court explained, the
statement “established no objective performance criteria for
measuring whether the stated goal will be achieved. As a result,
we and members of the public have not been informed how ARB
will determine that the requirements it adopts in a fuel
specifications regulation will ensure that use of the biodiesel does
not increase NOx emissions. To illustrate this point, it is unclear
what tests will be performed and what measurements will be
42
taken to determine that biodiesel use is not increasing NOx
emissions.” (Id. at p. 740.)
Unlike the proposed regulations in POET, Mitigation
Measure GHG-1 provided far more than a bare promise that
future mitigation would ensure there is no increase in GHG
emissions. It set a quantitative standard as a baseline, required
the project sponsor to meet that baseline, specified the manner in
which compliance with the baseline would be measured,
established strict reporting requirements, and specified a variety
of measures that must be adopted as necessary to meet the
standard. These features distinguish the mitigation measure
from the statement in POET and, for the reasons discussed
above, satisfy the requirements of Section 15126.4.
V. Analysis and Mitigation of Hazardous Materials
Petitioners contend, for several reasons, that the EIR’s
analysis of the presence of hazardous materials at the project site
and its measures for remediating those materials are inadequate.
A. Discussion of Existing Conditions
Petitioners initially argue that the EIR’s discussion of the
presence of hazardous materials at the project site is insufficient.
A proper analysis of existing environmental conditions is
necessary to provide a baseline against which the likely effects of
the project can be compared and quantified. (San Francisco
Baykeeper, Inc. v. State Lands Com. (2015) 242 Cal.App.4th 202,
217.)
Concern over hazardous materials at Howard Terminal did
not begin with the project. “[T]he Project site has a long history
43
of industrial use that has resulted in the contamination of fill,
soil, and groundwater. Various investigations, cleanup actions,
and land use restrictions have been implemented to address the
contamination.” Most of Howard Terminal is an active cleanup
site subject to the ongoing oversight of the state Department of
Toxic Substances Control (DTSC).
In discussing the prevalence of hazardous materials, the
EIR relied, in addition to extensive past investigation reports, on
a consultant survey conducted in 2019 (site investigation) that
“sampled soil gas, soil, and groundwater throughout the entire
Project site for chemicals of concern (COCs) identified in the
previous investigations,” including total petroleum hydrocarbons
(TPH) and other contaminants. The conclusions of the site
investigation were then used to prepare a human health and
ecological risk assessment (health risk assessment). The health
risk assessment evaluated potential human exposure to each
COC at the project site, determined the maximum exposure to
each that could be anticipated without mitigation, and evaluated
the health risks associated with such exposure. Based on this
analysis, the health risk assessment established “target cleanup
levels” to guide the remediation of each COC. Both the site
investigation and the health risk assessment were reviewed by
DTSC, revised according to the agency’s comments, and approved
by DTSC. The health risk assessment was, in turn, intended to
provide the basis for formulating a remedial action plan (RAP) for
the project that would reduce COCs below the target levels
identified in the health risk assessment. The RAP was not
44
complete at the time of the draft EIR, but a mitigation measure
required its completion and approval by DTSC before the project
could proceed.
Cap penetration
Petitioners first assert that the project description was
inadequate because it failed to discuss separately the effect of
removing the concrete cap that prevents the escape of existing
soil contaminants. Petitioners theorize that “[b]reaking through
the caps has the potential to mobilize existing contaminants
below.”
As respondents argue, the EIR’s entire discussion of
hazardous substances is, in effect, a discussion of the risks
associated with cap penetration. Without penetration of the cap,
which is necessary for any construction to occur, those substances
would remain sealed in the soil and would not present a public
health risk. The EIR fully recognizes the importance of the cap,
explaining that the site is subject to land use covenants that
prohibit any use “that will disturb or interfere with the integrity
of the existing cap” unless a risk management plan, a health
safety plan, and a soil management plan have been prepared and
approved by DTSC prior to the disturbance. To the extent
petitioners’ contention concerns the risks associated with the
spread of contaminated soil through construction activities, we
note that the EIR contains a full discussion of the risk
management measures already in effect at the site, which are
triggered by “any construction activity at the Project site that
would include breaching of the existing cap.” In short,
45
petitioners’ claim relating to the cap provides no basis for finding
the EIR inadequate.
Failure to discuss HOPs
Petitioners also contend that the EIR’s description of
hazardous chemicals is deficient for failing to discuss the
presence of a group of chemicals called “hydrocarbon oxidation
products” (HOPs). These chemicals result from the degradation
of hydrocarbons in the soil, but they can be detected and
measured separately from hydrocarbons. The EIR noted that
HOPs had been detected in several wells at a parcel adjacent to
the project site “at concentrations that exceed the saltwater
ecotoxicity ESL [environmental screening level]” and that the
highest concentrations of HOPs were found in wells near the
border with the project site. Despite this observation, HOPs were
not separately discussed in the description of hazardous
chemicals at the project site.
A comment on the draft EIR faulted the EIR and health
risk assessment for failing to consider the presence of HOPs.
According to the comment, a 2018 report prepared in connection
with the ongoing monitoring and remediation of Howard
Terminal (2018 Report)16 “recognized HOPs as a contaminant of
concern and stated that HOPs should be analyzed during future
sampling events.” Responding to this comment, the final EIR
stated, “potential exposure from [HOPs] is evaluated by the
16Baseline Environmental Consulting, Final Third Five-
Year Review Report, Charles P. Howard Terminal, Oakland,
California, January 2018.
46
inclusion of TPH in the gasoline, diesel, and motor oil ranges,
along with constituents of these mixtures (e.g., benzene and
naphthalene) in the [health risk assessment].” This response was
based on a report from the consultant that performed the site
investigation and prepared the health risk assessment, which
stated that “no significant [COCs] have been omitted from the
[health risk assessment]” because HOPs were reported through
inclusion within the TPH category.
The 2018 Report sheds light on this issue. Contrary to
petitioners’ interpretation of the comment, the 2018 Report did
not identify HOPs as a COC separate from TPH. Rather, in
discussing the manner in which total extractable petroleum
hydrocarbons (TEPH) had been measured for purposes of the
report, it noted that the test had used a process called “silica gel
cleanup” (SGC). According to the 2018 Report, the SGC process
had recently been found by the San Francisco Bay Regional
Water Quality Control Board (Regional Board) to remove HOPs,
which would otherwise be measured by the TEPH test, from a
tested sample. For that reason, the 2018 Report noted, “TEPH
measured after the application of SCG may reduce the apparent
magnitude of the risks associated with petroleum product and
their metabolites. . . . TEPH analysis with and without SGC will
be used in biennial groundwater sampling from now on to provide
comparable results to the historic data.” (2018 Report, at pp. 21–
22.) The site investigation, on which the EIR relied, recognized
the problem and, to avoid any confusion, reported TPH levels
before and after SGC treatment.
47
Understood in light of the 2018 Report, the site
investigation’s explanation of its TPH analysis provides
substantial evidence to support the final EIR’s rejection of the
claim that the EIR failed to report the presence of HOPs on the
project site. The presence of HOPs was included in the TPH
measurements prior to treatment with SGC. For this reason, the
EIR did not fail to disclose the presence of HOPs, any more than
it failed disclose the presence of gasoline or any other individual
chemical component of TPH that was not reported separately
from the overall measurement.
It is a separate question, however, whether the
environmental impact of HOPs is sufficiently distinct from that of
hydrocarbons such that HOPs should have been separately
measured and discussed by the EIR. This is a complex regulatory
question that would seem to depend on a variety of factors,
including the toxicity, prevalence, persistence, and behavior of
HOPs in the soil relative to that of hydrocarbons, and whether
HOPs require remediation techniques different from those used
for hydrocarbons.
Although there is evidence in the record demonstrating
that HOPs are soluble in groundwater, there is otherwise little to
suggest that HOPs present an environmental risk sufficiently
distinct from that of hydrocarbons as to require their separate
reporting and discussion. (See East Sacramento Partnerships for
a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281,
299 (“ ‘ “The party challenging the EIR . . . bears the burden of
demonstrating that the studies on which the EIR is based ‘are
48
clearly inadequate or unsupported” ’ ”].) Petitioners’ argument
relies heavily on the publication by the Regional Board of an ESL
for HOPs. As the Regional Board has explained, however, its
ESLs “provide conservative screening levels for over 100
chemicals found at sites with contaminated soil and groundwater.
They are intended to help expedite the identification and
evaluation of potential environmental concerns at contaminated
sites. . . . Information provided in [the ESL] documents is not
intended to establish policy or regulation.”17 In other words, the
existence of a Regional Board ESL merely suggests that a
substance is a possible subject of environmental concern. It is not
a confirmation of such concerns. Accordingly, we find little
evidence in the record to suggest that HOPs are of sufficient
environmental concern as to require consideration separate from
TPH.
Importantly, the EIR’s decision not to analyze HOPs
separately from TPH is supported by the judgment of DTSC, the
regulatory body with authority over the Howard Terminal
cleanup. DTSC reviewed the site investigation and health risk
assessment. Although DTSC’s comments on the site
investigation recognized the problem created by using SGC in
measuring TPH, the agency did not recommend separate
reporting of HOPs. That the DTSC did not require separate
reporting of HOPs provides substantial evidence supporting the
17See “Environmental Screening Levels” on the Regional
Board’s website at
[as of March 30, 2023].
49
City’s adoption of the EIR notwithstanding its failure to
separately assess the impact of HOPs. (See Guidelines, § 15384,
subd. (b) [“Substantial evidence shall include facts, reasonable
assumptions predicated upon facts, and expert opinion supported
by facts”]; Association of Irritated Residents v. County of Madera
(2003) 107 Cal.App.4th 1383, 1397 [“the decisionmaker is
‘permitted to give more weight to some of the evidence and to
favor the opinions and estimates of some of the experts over the
others’ ”].)18
B. Timeliness of the Health Risk Assessment
Petitioners next argue that the health risk assessment is
based on an ecological risk assessment prepared in 2002, which
they contend is “outdated” because it predates the recognition of
HOPs as a pollutant requiring consideration separate from TPH.
This contention is governed by our conclusion, stated above, that
the EIR’s decision not to treat HOPs as a pollutant separate from
TPH is supported by substantial evidence. Further, as noted, the
health risk assessment used information generated by the site
investigation, which separately reported TPH figures before and
after SGC treatment.
Petitioners also contend that the draft EIR understated
18
the extent of HOPs contamination in groundwater at the project
site because a map showing areas of groundwater contamination
was based on TPH results after SGC treatment. Because we
conclude that the City’s decision not to separately discuss HOPs
is supported by substantial evidence, we decline to rule that the
EIR was required to report TPH results before SGC treatment.
As noted, the TPH results were reported both ways in the site
investigation, on which the map in the EIR was based.
50
C. Recirculation of the Draft EIR
Petitioners next contend that the draft EIR failed to
provide sufficient information about remedial measures that will
be taken to minimize risk from soil and groundwater
contamination at the project site and argue that the draft EIR
should have been recirculated to disclose and discuss the
remedial measures proposed in the draft RAP, which was
completed after issuance of the final EIR. (§ 21092.1; Residents
Against Specific Plan 380 v. County of Riverside (2017)
9 Cal.App.5th 941, 964 [under section 21092.1, when a lead
agency adds “significant new information” to an EIR after
consultation with the public but before certifying the EIR, the
lead agency must pursue an additional round of consultation].)
As mentioned above, the EIR tasked the project sponsor
with formulating a RAP for the project site that would reduce the
prevalence of COCs below the target levels established in the
health risk assessment. A RAP is one of two statutory
documents, along with a removal action workplan (RAW), that
DTSC may require in connection with environmental
remediation. (See Health & Saf. Code, §§ 25323.1 [defining
RAW], 25356.1 [defining RAP].)19 The two documents serve
essentially the same purpose, but DTSC permits the less
These statutes have been repealed as part of a
19
recodification, effective January 1, 2023, and operative January
1, 2024. Going forward, the statutes will be codified as Health &
Safety Code sections 78130 [remedial action work plan] and, in
relevant part, 79215 [remedial action plan]. (Stats. 2022, ch. 257,
§ 2.)
51
comprehensive RAW to be prepared if remediation is projected to
cost less than 2 million dollars.20 In effect, a RAW is an
abbreviated version of a RAP, but, unlike a RAP, the RAW is not
subject to public comment.
At the time the draft EIR was prepared, the City assumed
that the project sponsor would prepare a RAW rather than a
RAP, and the draft EIR originally referred to the preparation of a
RAW. By the time the final EIR was issued, however, the project
sponsor had elected to prepare the more comprehensive
document. Accordingly, the final EIR retrospectively changed the
draft EIR’s references to a “RAW” to a “RAP.”21
The draft EIR lists a series of remedial measures that
might be included in the RAP, recognizing that the RAP “would
include a combination of the methods summarized here. . . . The
[RAP] would identify the methods to be used, the specific areas
and media for the given remedial methods [to] be applied, the
regulatory standards to be achieved, and measures to restore the
cap integrity where required.” A mitigation measure requires
completion of the RAP and its approval by DTSC, which has
regulatory jurisdiction over cleanup efforts at Howard Terminal,
before the project can proceed.
20See “Removal Action Work Plan (RAW) Quick Reference
Guide” on the DTSC’s website at [as of March 30, 2023].
21In this section, our discussion of the draft EIR adopts
this change. Accordingly, in the text below, we use the term
“RAP” where the draft EIR originally used “RAW.”
52
An EIR must be recirculated if “significant new
information” is added after issuance of the draft EIR and prior to
certification of the final EIR. (§ 21092.1; Guidelines, § 15088.5,
subd. (a).) Recirculation requires making the revised EIR
available for public review and consulting with other agencies
again before certifying the EIR. (Citizens for Positive Growth &
Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609,
631.) “[N]ew information is ‘significant,’ within the meaning of
section 21092.1, only if as a result of the additional information
‘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 effect.’ [Citations.] Recirculation is not mandated
under section 21092.1 when the new information merely clarifies
or amplifies the previously circulated draft EIR, but is required
when it reveals, for example, a new substantial impact or a
substantially increased impact on the environment.” (Vineyard
Area Citizens for Responsible Growth, Inc. v. City of Rancho
Cordova (2007) 40 Cal.4th 412, 447.) “ ‘ “[T]he final EIR will
almost always contain information not included in the draft EIR”
given the CEQA statutory requirements of circulation of the draft
EIR, public comment, and response to these comments prior to
certification of the final EIR. . . . “[R]ecirculation was intended to
be an exception, [not] the general rule.” ’ ” (Southwest Regional
Council of Carpenters v. City of Los Angeles (2022) 76 Cal.App.5th
1154, 1184.) The lead agency is not required to make an express
finding regarding recirculation of an EIR, but the decision not to
53
recirculate must be supported by substantial evidence in the
record. (Save Our Capitol!, supra, 85 Cal.App.5th at p. 1153.)
The Guidelines provide the following as examples of
“significant new information” requiring recirculation: “[A]
disclosure showing that: (1) A new significant environmental
impact would result from the project or from a new mitigation
measure proposed to be implemented. [¶] (2) A substantial
increase in the severity of an environmental impact would result
unless mitigation measures are adopted that reduce the impact to
a level of insignificance. [¶] (3) A feasible project alternative or
mitigation measure considerably different from others previously
analyzed would clearly lessen the significant environmental
impacts of the project, but the project’s proponents decline to
adopt it. [¶] (4) The draft EIR was so fundamentally and basically
inadequate and conclusory in nature that meaningful public
review and comment were precluded.” (Guidelines, § 15088.5,
subd. (a).)
Petitioners provide no authority suggesting that a private
party’s preparation of a draft report or plan required by a
mitigation measure constitutes the addition of new information
“to an environmental impact report,” as required by section
21092.1. This is particularly the case where, as here, the new
information (i.e., the draft RAP) emerged after circulation of the
final EIR. Recirculation is generally the result of new
information contained in the final EIR. (See Laurel Heights
Improvement Assn. v. Regents of University of California (1993)
6 Cal.4th 1112, 1128–1129.) Although the decision to use a RAP
54
was disclosed in the final EIR, the release of the draft RAP,
which petitioners contend is the event requiring recirculation, did
not occur until later. Further, to the extent petitioners contend
that recirculation is required because the public is entitled to
review and comment on the remediation measures adopted in the
RAP, such an opportunity for public comment is a required part
of DTSC’s approval of the RAP. (Health & Saf. Code, § 25356.1,
subd. (e).) There is no risk that the remediation will proceed
without the opportunity for public disclosure and comment.
Putting aside these preliminary issues, substantial
evidence supports the City’s decision not to recirculate the EIR to
incorporate the contents of the draft RAP. The draft RAP does
not add new information to the EIR, other than to confirm which
of the available remedial measures discussed in the draft EIR
have been deemed most appropriate for implementation.
Petitioners do not suggest that the draft RAP discloses or will
create a new significant environmental impact that is not
discussed in the EIR, nor do they suggest that the draft RAP will
increase the severity of a disclosed impact. At most, the RAP
“merely clarifie[d] or amplifie[d]” the discussion in the draft EIR.
(Guidelines, § 15088.5, subd. (b).)
Petitioners point to one of three alternative approaches in
the draft RAP that would require the removal of far less soil than
anticipated in the draft EIR. Assuming this alternative is
adopted, it does not involve any new, previously undisclosed
environmental impacts. The draft EIR made clear that its
estimate of a much higher quantity of soil was “conservative,”
55
intended to disclose the environmental impact associated with
excavating and hauling contaminated soil in a reasonable worst
case. Leaving contaminated soil in place (assuming it can be
done consistent with the standards required by the health risk
assessment), reduces these impacts and is fully consistent with
the remedial approach discussed in the draft EIR of leaving
contaminated soil in place under an impermeable cap.22
D. Deferred Mitigation of Contaminants
Petitioners assert that leaving the detailed formulation of
remedial measures for hazardous substances to a RAP fails to
satisfy the requirement of a specific performance standard in
Section 15126.4, subdivision (a)(1)(B).
The draft EIR adopts three mitigation measures for
handling contamination at the project site. The first, Mitigation
Measure HAZ-1a, requires preparation of a RAP and its approval
by DTSC, land use covenants, and “associated plans.” It requires
these plans to identify areas with COC concentrations above the
target cleanup levels in the health risk assessment and to
describe “specific remedial methods” to be applied to each of these
areas, the procedures used to implement these methods, the
analytical methods used “to verify that contaminated materials
have been removed or treated such that the numerical cleanup
22 To the extent petitioners’ argument is that the switch
from a RAW to a RAP requires recirculation, we similarly find
substantial evidence supporting the failure to recirculate. A RAP
performs the same function as a RAW, with more detail and
public comment. (Compare Health & Saf. Code, §§ 25323.1,
25356.1.) Use of a RAP in no way changes the substantive
environmental discussion of the EIR or the impacts of the project.
56
levels have been achieved,” and cap restoration actions for those
areas that will require a cap. The second mitigation measure,
HAZ-1b, requires that, prior to the issuance of any grading or
other construction permit for the project, the project sponsor
provide evidence that DTSC concurs that the proposed actions
are consistent with the plans required by HAZ-1a. Further, prior
to the issuance of any certificate of occupancy, the project sponsor
must provide evidence that DTSC has determined that the site is
suitable for use. The third measure, HAZ-1c, requires the
preparation of Health and Safety Plans consistent with
applicable regulations to protect workers and the public during
the remediation activities.
There is little question that these mitigation measures
satisfy the requirements of Section 15126.4. The target cleanup
levels from the health risk assessment provide a specific
performance standard for each of the COCs identified in the EIR.
Although petitioners contend that the mitigation measures “do
not even reference the [target cleanup levels],” this is not correct;
as indicated, Mitigation Measure HAZ-1a requires the project
sponsor to verify that the target cleanup levels have been
achieved prior to the issuance of any construction permits.
Although the mitigation measures do not themselves describe the
type of remedial actions that are to be considered, the draft EIR’s
thorough discussion of past and current remediation efforts
describes the most common remediation measures, and the draft
EIR cites and summarizes the contents of a consultant report
57
that contains a detailed consideration of remedial measures and
alternatives for the site.
We conclude that the extensive history of remediation
efforts at the site, the establishment of quantitative target levels
for each COC, the presentation in the consultant’s report of a
detailed range of alternative approaches to remediation, and the
presence of a state agency responsible for oversight of
remediation are sufficient to satisfy the requirements for
deferring the final details of contamination mitigation.
(§ 15126.4, subd, (a)(1)(B).)
As respondents argue, the EIR’s approach to mitigation of
site contaminants is essentially identical to that found adequate
in City of Maywood, supra, 208 Cal.App.4th 362. The large site
on which the school district sought to build a new high school
consisted of seven commercial and 40 residential parcels. (Id. at
p. 372.) The district had been unable to secure permission to test
the soil on most of the residential parcels, but it found a range of
potentially hazardous contaminants on the remaining parcels.
(Id. at p. 375.) By statute, the district was required to conduct
further work under the oversight of DTSC, including preparing a
supplemental investigation, remediating or removing the
contaminated soil pursuant to a RAW, and obtaining DTSC
safety certification. The EIR concluded that, after application of
this procedure, the hazardous materials would not constitute a
significant environmental effect. (Id. at pp. 375, 402–405.) The
court recognized that “ ‘[a] condition requiring compliance with
regulations is a common and reasonable mitigation measure, and
58
may be proper where it is reasonable to expect compliance.’ ” (Id.
at p. 409.) The court therefore concluded that the statutory
procedure, requiring approval by DTSC, constituted adequate
mitigation, holding that the “ ‘mitigation measures . . . f[e]ll
squarely within the rule . . . that “when a public agency has
evaluated the potentially significant impacts of a project and has
identified measures that will mitigate those impacts,” and has
committed to mitigating those impacts, the agency may defer
precisely how mitigation will be achieved under the identified
measures pending further study.’ ” (Id. at p. 412.)
Petitioners argue that City of Maywood is distinguishable
because the school district could not formulate a complete
remediation plan due to its inability to obtain permission to test
soil over much of the property. Under the Guidelines, the details
of a mitigation measure can be finalized at a later date when “it
is impractical or infeasible to include those details during the
project's environmental review.” (§ 15126.4, subd. (a)(1)(B).) In
City of Maywood, supra, 208 Cal.App.4th 362, it was infeasible to
include details for two reasons. As noted, soil testing could not be
completed. But mitigation details could not be included for the
additional reason that they were within the ultimate regulatory
jurisdiction of DTSC (id. at pp. 405–406), just as is the case here.
The City’s ability to test the entire project site therefore does not
meaningfully distinguish City of Maywood.
VI. Findings Regarding Alternative Three
Petitioners contend that the EIR’s analysis of the
environmental consequences of Alternative 3, the alternative
59
requiring construction of an overpass, was insufficient to support
the City’s finding that “the impacts of Alternative 3 were
analyzed in the EIR in sufficient detail to analyze the reasonably
foreseeable impacts of Alternative 3.” Respondents argue that
this claim was not exhausted below. In response, petitioners
contend, without further explanation, that their “challenge to the
City’s CEQA Findings is properly and timely asserted and there
was no ‘exhaustion’ requirement, nor public comment period.”
The EIR discussed three alternatives in addition to the no-
project alternative. Alternative 2 involved construction of a new
ballpark on the site of the A’s current ballpark. Alternative 4
was a reduced project alternative, involving the construction of a
ballpark with limited commercial and residential development.
For this reason, Alternative 3—described as “The Proposed
Project with Grade Separation”—was, in effect, the project itself.
The City’s findings recognized as much, stating, “For purposes of
these findings, the CEQA project, evaluated in these CEQA
Findings and Statement of Overriding Considerations, . . . shall
refer to the proposed Project with a single vehicle grade
separation overcrossing of the railroad tracks as described in
Alternative 3: the Proposed Project with Grade Separation
Alternative.” This was necessarily true because the EIR did not
analyze an alternative that featured the level of development
sought by the project sponsor but without an overpass.
Alternative 3 was thus effectively the project.
“Section 21177, subdivision (a) provides that before an
alleged ground for noncompliance with CEQA may be brought to
60
court it must have been ‘presented to the public agency orally or
in writing by any person during the public comment period
provided by this division or prior to the close of the public hearing
on the project before the issuance of the notice of
determination.’ ” (Center for Biological Diversity v. Department of
Fish & Wildlife (2015) 62 Cal.4th 204, 237.) Section 21177’s
exhaustion requirement, however, “does not apply to any alleged
grounds for noncompliance with this division for which there was
no public hearing or other opportunity for members of the public
to raise those objections orally or in writing before the approval of
the project . . . .” (§ 21177, subd. (e).) The party challenging a
CEQA determination has the burden of proving exhaustion.
(Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th
444, 459.)
We will assume that a challenge to a public agency’s
compliance with CEQA’s findings requirements is exempt from
exhaustion under section 21177, subdivision (e) because those
findings ordinarily issue only at the time of project approval,
after the comment period and public hearing are over. We
conclude, nonetheless, that petitioners failed to exhaust their
claim with respect to the Alternative 3 findings because we do not
view it as a genuine challenge to the City’s findings.
It is fundamental that an EIR must discuss the significant
environmental impacts of a project. (Guidelines, §15126.2,
subd. (a).) Because Alternative 3 was, as a practical matter, the
project, petitioners’ claim that the City erred in finding that “the
impacts of Alternative 3 were analyzed in the EIR in sufficient
61
detail to analyze the reasonably foreseeable impacts of
Alternative 3” is simply another way of saying that the EIR’s
discussion of the project’s environmental impacts was
inadequate. Indeed, as would be expected for such a claim,
petitioners support their argument by citing various inadequacies
in the draft EIR’s discussion of these impacts.23 Because a claim
that the EIR’s discussion of impacts was insufficient could have
been raised during the comment period or at the public hearing,
this claim is subject to the ordinary exhaustion requirement.
Petitioners cannot avoid the exhaustion requirement by
characterizing their claim as a challenge to the lead agency’s
finding that the EIR was adequate. Taken to its logical
conclusion, petitioners’ position would allow any challenge to the
adequacy of an EIR to be raised in the absence of exhaustion,
merely by framing the challenge as a critique of the agency’s
required finding that the EIR complied with CEQA. (Guidelines,
§ 15090, subd. (a)(1) [prior to approving a project the lead agency
shall certify that the EIR “has been completed in compliance with
CEQA”].) We will not countenance such a circumvention of
CEQA’s procedural requirements.
Petitioners fail to demonstrate that their specific critiques
of the EIR’s discussion of the environmental impacts of the
23Their primary contentions are that the EIR did not
analyze the impacts of the project “with the Overpass added”;
merely assumed that the construction of an overpass would
intensify impacts already found significant and unavoidable,
without quantifying the added impacts associated with the
overpass; and did not analyze the impacts of relocating utilities.
62
overpass were raised during the administrative proceedings.
These claims were thus not exhausted, and we are unpersuaded
by their effort to frame their overpass-related challenge as one to
the City’s overall finding as to the adequacy of the EIR.
VII. Cumulative Impacts
Finally, petitioners contend that the EIR’s cumulative
impacts analysis should have included consideration of the
impact of the use of a portion of the project site to expand the
Port’s turning basin for large vessels. (Guidelines, § 15355
[cumulative impacts analysis is required when two or more
individual effects, considered together, are considerable or
compound other environmental impacts].)
Under an agreement negotiated between the project
sponsor and the Port, an area at the southwest corner of Howard
Terminal is designated a “Maritime Reservation Area.” At any
time up until 2029, the Port may, under the agreement,
terminate the project sponsor’s development rights to some or all
of 10 acres of the Maritime Reservation Area. In that event, the
area would be returned to the Port and excavated to expand a
turning basin for large vessels within Oakland’s Inner Harbor.
At the time of the draft EIR, the Port and the Army Corps of
Engineers were jointly conducting a feasibility study of the
expansion that was scheduled to be completed by the end of 2023.
The draft EIR did not consider the impacts of expanding
the turning basin because “[t]he Port of Oakland has not
proposed, designed, approved, or secured permits for” such an
expansion. According to the draft EIR, expansion of the turning
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basis would be analyzed “as a separate project” by the Port
should it elect to exercise the option to take back a portion of the
project site. The draft EIR nonetheless discussed the
environmental effects of turning basin expansion in each of its
technical analyses to the extent such discussion was necessary
“to address effects that are different from those identified for the
proposed Project.” The EIR did not consider turning basin
expansion to be a “cumulative project” for purposes of the draft
EIR because “an expanded turning basin is still being assessed in
terms of feasibility.”
Under CEQA, cumulative impacts analysis must consider
not only the cumulative impacts of the project itself, but also “the
change in the environment which results from the incremental
impact of the project when added to other closely related past,
present, and reasonably foreseeable probable future projects.”
(Guidelines, § 15355, subd. (b); see also Guidelines, § 15130,
subd. (a)(1); League to Save Lake Tahoe v. County of Placer (2022)
75 Cal.App.5th 63, 147–150 [discussing cumulative impacts
analysis generally].) “In assessing the types of projects that
should be included in a cumulative impacts analysis, our
Supreme Court has clarified that an EIR need not discuss future
action ‘that is merely contemplated or a gleam in a planner’s eye.’
[Citation.] ‘[M]ere awareness of proposed expansion plans or
other proposed development does not necessarily require the
inclusion of those proposed projects in the EIR. Rather, these
proposed projects must become “probable future projects.”
[Citation.]’ [Citation.] ‘ “ ‘[W]here future development is
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unspecified and uncertain, no purpose can be served by requiring
an EIR to engage in sheer speculation as to future environmental
consequences.’ ” ’ ” (City of Maywood, supra, 208 Cal.App.4th at
pp. 397–398.)
There is no single accepted definition of “probable future
project.” The court in Gray, supra, 167 Cal.App.4th 1099, defined
the term as “any future project where the applicant has devoted
significant time and financial resources to prepare for any
regulatory review.” (Id. at pp. 1127–1128.) City of Maywood,
supra, 208 Cal.App.4th 362 additionally required “evidence that
the proposed project is both probable and sufficiently certain to
allow for meaningful cumulative impacts analysis.” (Id. at
p. 399.)
The City’s conclusion that turning basin expansion is not a
“probable future project” is supported by substantial evidence.
As the EIR noted, the Port and the Army Corps of Engineers are
still studying the feasibility of turning basin expansion.
Although these parties would not be engaged in a feasibility
study if there were no perceived need for the expansion, it is
implausible to deem expansion “probable” before there has been
an official determination that it is even feasible. Further, there
is no suggestion that the Port is “prepar[ing] for any regulatory
review.” (Gray, supra, 167 Cal.App.4th at pp. 1127–1128.)
Petitioners argue that the feasibility study should be deemed a
“regulatory review” for this purpose, but that phrase must be
reserved for review by a regulatory body charged with approval of
the project, which presupposes a relatively complete plan of
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action. Nor are the details of expansion “sufficiently certain to
allow for meaningful cumulative impacts analysis.” (City of
Maywood, supra, 208 Cal.App.4th at p. 399.) At the time the
draft EIR was prepared, turning basin expansion was still
“merely contemplated or a gleam in a planner’s eye,” rendering it
outside the scope of cumulative impacts analysis. (Laurel
Heights Improvement Assn. v. Regents of University of California
(1988) 47 Cal.3d 376, 398.)
VIII. Respondents’ Cross-Appeal
Respondents challenge the trial court’s holding that the
EIR improperly deferred mitigation of wind impacts because the
wind mitigation measure, which postpones formulation of the
details of wind mitigation pursuant to Section 15126.4,
subdivision (a)(1)(B), does not contain the type of “specific
performance standard” required by the guideline. (§ 15126.4,
subd. (a)(1)(B)(1).)
The draft EIR contained a relatively brief discussion of the
project’s impact on wind currents at the project site. As the EIR
recognized, the effect of wind increases with its speed. Buildings
that stand alone or are much taller than surrounding structures
can capture and redirect wind; such “redirected winds can be
relatively strong and turbulent and may be, in some instances,
incompatible with the intended uses of nearby ground-level
pedestrian spaces.” The EIR concluded that the project will have
a significant adverse environmental impact if it creates winds
that exceed 36 mph for more than one hour during daylight
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hours.24 A wind tunnel study suggested that the project could, at
completion, produce winds exceeding this significance level for a
minimum of 100 to 150 hours annually.
The EIR’s discussion acknowledged a variety of design and
landscaping modifications that might reduce the wind impact of
the project’s buildings. The EIR was concerned, however, that “it
cannot be stated with certainty at this stage of Project design
that all wind hazards identified in the wind tunnel test would be
eliminated” with this type of mitigation. As a result, the EIR
concluded that the wind impact of the project would be significant
and unavoidable.
The EIR’s single wind mitigation measure requires a wind
tunnel analysis for each proposed building exceeding 100 feet in
height prior to the issuance of a building permit. The mitigation
measure requires no further action if the analysis determines
that the building “would not create a net increase in hazardous
wind hours or locations . . . compared to then-existing conditions.”
If, however, the building’s design would cause an increase in
significant wind impacts, the project sponsor is required to “work
with the wind consultant to identify feasible mitigation
strategies, including design changes (e.g., setbacks,
rounded/chamfered building corners, or stepped facades), to
eliminate or reduce wind hazards to the maximum feasible extent
without unduly restricting development potential. Wind
24For comparison, existing wind speeds at the project site
average 27 mph, and winds greater than 38 mph “make it nearly
impossible to walk into the wind and increase difficulty with
balance.”
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reduction strategies could also include features such as
landscaping and/or installation of canopies along building
frontages, and the like.”
This performance standard fails to satisfy Section 15126.4
for the simple reason that it is not “specific.” By requiring a
reduction in wind impacts “to the maximum feasible extent
without unduly restricting development potential,” the mitigation
measure appears to seek a balance between competing factors,
mitigating adverse wind impacts only to the extent possible
without “unduly” impairing the commercial value of the
buildings. (Italics added.) Even assuming that a mitigation
measure may, in appropriate circumstances, strike a balance
between the reduction of environmental impacts and commercial
functionality, the mitigation measure must inform the public
where that balance has been struck. Mitigation measures “need
not include precise quantitative performance standards” (Sierra
Club, supra, 6 Cal.5th at p. 523), but Section 15126.4’s reference
to “specific” performance standards implies a reasonably clear
and objective measure of compliance. One purpose of the
specificity requirement is presumably to permit the public, the
responsible regulator, and the project sponsor to determine the
type and extent of mitigation that must be considered and to
provide a standard for judging compliance with the mitigation
measure once the details are finalized. Unless the performance
standard is expressed in reasonably clear, objective terms, the
interested parties cannot know how the mitigation measure
should be interpreted and applied.
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The vague language of the performance standard in the
EIR’s wind mitigation measure fails this test. On the one hand,
the project sponsor is required to “eliminate or reduce wind
hazards to the maximum feasible extent”; on the other hand, the
project sponsor cannot be required to “unduly” restrict the
“development potential” of the project to mitigate wind impacts.
The critical point is reached when the wind mitigation measures
begin to “unduly” reduce the development potential of the project.
But the point at which a restriction on development potential
becomes “undue” depends entirely on the value placed on
reducing wind impacts by the agency charged with overseeing
compliance with the mitigation measure, the City Department of
Planning & Building. If the agency places a high value on the
reduction of wind impacts, a substantial restriction in
development potential will not be deemed undue. If the agency
places little value on reducing adverse wind effects, even small
reductions in development potential will be undue. For this
reason, the mitigation measure provides no reliable means for
deciding the degree of wind impact reduction required with
respect to a particular building.
This difficulty is enhanced by the failure of the mitigation
measure to explain or define its language. As noted, use of the
inherently subjective term “unduly” without further explanation
leaves the decision on mitigation largely to the discretion of the
compliance agency. This is compounded by the EIR’s failure to
explain the concept of “development potential.” The phrase
appears nowhere else in the discussion of wind impacts, and the
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mitigation measure itself makes no attempt to explain or define
the term.
In addition, the mitigation measure does not fully comply
with the requirement that it “identif[y] the type(s) of potential
action(s) that can feasibly achieve that performance standard and
that will be considered, analyzed, and potentially incorporated in
the mitigation measure.” (§ 15126.4, subd. (a)(1)(B)(3).) The
wind mitigation measure merely mentions three possible design
changes in a parenthetical, combined with a final mention of
“landscaping and/or installation of canopies along building
frontages, and the like.” There is no indication whether more
significant changes in overall building size or location may be
considered or, if not, why more substantial changes are deemed
infeasible.
Respondents implicitly disavow the actual performance
standard in the mitigation measure, instead citing the measure’s
initial language, which provides, “With the goal of preventing to
the extent feasible a net increase in the number of hazardous
wind exceedance locations, compared to existing conditions, . . .”
Respondents argue that this language incorporates the City’s
quantitative standard for a significant wind effect as a
performance standard. Although we agree that the EIR’s
standard for a significant wind effect (i.e., winds that exceed 36
mph for more than one hour during daylight hours) is
appropriately specific, the cited language does not establish that
measure as a “performance standard.” Instead, the language
clearly labels avoidance of significant wind effects as a “goal,” to
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be achieved “to the extent feasible.” In so doing, this language
merely reiterates the legal obligation imposed on the City by
CEQA—to mitigate significant environmental effects to the
extent feasible—without providing any guide as to how that
obligation must be satisfied in particular circumstances.
Respondents further argue that a specific performance
standard—at least, beyond reiteration of the basic obligation to
mitigate—was not required because it is “uncertain” whether full
mitigation can be achieved. We find no support for respondents’
position that specific performance standards are unnecessary
when the lead agency adopts a statement of overriding
considerations. Section 15126.4 contains no exemption from the
requirement of a specific performance standard when the lead
agency adopts a statement of overriding considerations.
Adoption of such a statement “does not negate the statutory
obligation to implement feasible mitigation measures. ‘Even
when a project’s benefits outweigh its unmitigated effects,
agencies are still required to implement all mitigation
measures unless those measures are truly infeasible.’ ” (King &
Gardner, supra, 45 Cal.App.5th at p. 852.)
Finally, respondents’ counsel insisted at oral argument that
it was not possible for the EIR to adopt a specific performance
standard because it is uncertain what the wind impact of the
project, once finalized, will be. But that is often (if not always)
the case with deferred mitigation measures, and Section 15126.4
nonetheless requires specificity. Even assuming respondents are
correct that the EIR cannot adopt the type of quantitative
71
standard it employed in determining a significant wind impact,
an arithmetically precise standard is not required. (Sierra Club,
supra, 6 Cal.5th at p. 523.)
In sum, we reject respondents’ cross-appeal challenging the
trial court’s grant of the petition with respect to the wind
mitigation measure.
DISPOSITION
The judgment is affirmed.
BROWN, ACTING P. J.
WE CONCUR:
STREETER, J.
GOLDMAN, J.
East Oakland Stadium Alliance, LLC v. City of Oakland (A166221)
72
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Brad Seligman
Counsel: Pillsbury Winthrop Shaw Pittman, Ronald Van
Buskirk, Margaret Rosegay, and Stacey Wright
for Plaintiffs and Appellants.
Shana Lazerow, Idalmis Vaquero, and Jina
Kim as Amicus Curiae on behalf of Plaintiffs
and Appellants.
Barbara Parker and Maria S. Bee, City
Attorney; Meyers Nave Riback Silver & Wilson,
Timothy D. Cremin and Shaye Diveley for
Defendants and Appellants.
Mary Richarson and Kimberly McIntyre; Best
Best & Krieger, Charity Schiller, Sarah E.
Owsowitz and Tiffany Michou for Real Party in
Interest and Appellant Port of Oakland.
D’Lonra Ellis; Gibson Dunn & Crutcher, Mary
G. Murphy, Sara Ghalandari; Remy Moose
Manley, Whitman F. Manley, Christopher L.
Stiles, for Real Party in Interest and Appellant
Oakland Athletics Group, LLC.
73