EIR Not Required to Evaluate Off-Site Alternative Which Does Not Meet Project Objectives
The Lawrence Berkeley National Laboratory ("Lab") is a special research facility which, though located primarily in the Berkeley hills on land owned by the Regents of the University of California, is financed by the federal government.In Jones v. Regents of the University of California, the Court of Appeal has upheld an Environmental Impact Report for the Lab's Long Range Development Plan. Under the LRDP, buildings at the Lab's main "hill site" would increase to 2.4 million square feet, from an existing 1.7 million square feet. The Court held that (1) the EIR was not required to evaluate an alternative which would not meet the agency's stated objectives for the project, and (2) plaintiffs were barred from challenging the EIR's methodology for analyzing certain impacts by failure to raise that issue during the administrative approval process.
The EIR evaluated five project alternatives, including on "off-site" alternative that would divide new facilities between the main hill site and an existing supplemental off-site location in Richmond. Plaintiffs alleged that the EIR was additionally required to examine a "true" off-site alternative, under which all growth would occur away from the hill site. The Court rejected this argument. The Court noted that the EIR had set forth detailed project objectives, including fostering academic collaboration by clustering new development to create a more "campus like" environment at the hill site. The Court noted that locating new development away from the hill site would "nullify" this project objective. The Court held that an EIR "does not have to identify and analyze alternatives that would not meet a project's objectives nor does it have to discuss every possible permutation of alternatives."
The Court also rejected the Plaintiffs' argument that the EIR was deficient for failing to determine whether the LRDP would result in storm water runoff that would violate "numerical benchmarks and standards" for water quality. CEQA, and the judicial review doctrine of "exhaustion of administrative remedies," require that any issues raised in litigation must first have been raised in administrative proceedings before the agency which is considering an EIR. The Court observed that, although the Plaintiffs had submitted general comments alleging water quality impacts, they had not specifically alleged a potential violation of numerical water quality standards. The Court found that the Plaintiffs' comments during administrative proceedings "did not fairly apprise the Regents about the specific issue of numerical water quality standards," and that, therefore, the Plaintiffs were barred from raising that issue for the first time in court. In an unpublished portion of the opinion, the Court also held that the Plaintiffs were barred, by failure to exhaust administrative remedies, from litigating whether the Regents were required to recirculate the draft EIR for review of the Regents' responses to public comments concerning greenhouse gas impacts.
Jones v. Regents underscores the importance, for agencies preparing EIRs, of tailoring the range of project alternatives considered in an EIR to meet the agency's statement of project objectives. It also highlights the need for project opponents to specifically raise, in administrative comments, any ground for challenge which they may hope to rely on in subsequent litigation.