Court Holds That CEQA Does Not Require Analysis Of The Environment’s Impacts On A Proposed Project
Ballona Wetlands Land Trust v. City of Los Angeles is the second in a series of challenges to CEQA review of a mixed-use residential development, the Playa Vista Phase Two Project. In a prior case concerning the same Project, the Court issued a writ of mandate invalidating a 2004 EIR for failing to consider “in-place” preservation of archeological artifacts, and for presenting a misleading project description and an inadequate analysis of wastewater impacts. The writ further instructed the City to vacate certification of the 2004 EIR and project approvals, and to revise the EIR to address the deficiencies pointed out by the court. In response to the Court’s writ, the City in 2010 certified a Revised EIR for the Project and sought to discharge the writ. Petitioners objected and filed a new petition for a writ of mandate. The Court consolidated the new petition with the pending case.
The most significant portion of the new ruling was only reached because, in addition to the revised analysis required by the writ, the City also included a new climate change impacts analysis in the Revised EIR. Petitioners attacked the climate change analysis for inadequately analyzing the impacts of sea-level rise caused by climate change on the project. Petitioners relied on CEQA Guidelines section 15126.2, which states that “[t]he EIR shall also analyze any significant environmental effects the project might cause by bringing development and people into the area affected” by environmental impacts or hazards. The Court disagreed that the Revised EIR was required to analyze the impacts of climate change on the Project, holding that “the purpose of an EIR is to identify the significant effects of a project on the environment, not the significant effect of the environment on the project.” The Court held that CEQA Guidelines section 15126.2 is only consistent with the CEQA statute to the extent it requires analysis of the project’s impacts on the environment, and not vice-versa. The Court went on to criticize Appendix G of the CEQA Guidelines, which is used to guide an agency’s initial study, for including questions that address the impacts of the environment on the project.
The Court also upheld the Revised EIR’s discussion of mitigation of impacts to archeological resources. CEQA requires an EIR to consider in-place preservation of archeological resources as mitigation for significant impacts. The Court had previously determined that the 2004 EIR failed in this task. The Revised EIR, by contrast, considered in-place preservation as mitigation, determined that in-place preservation was infeasible, and further concluded that data recovery and curation were the only feasible mitigation measures. The Court held the Revised EIR adequately considered feasible mitigation for the Project’s archaeological resources impacts, and that its conclusions were supported by substantial evidence.
The Court refused to consider two arguments against the 2004 EIR that were not raised in the initial challenge to that document. The Court provided a helpful discussion of the scope of jurisdiction which a court retains after issuing a writ of mandate. The Court then held that the two new issues raised by petitioners exceeded that jurisdiction because they were not raised in the original challenge to the Project which gave rise to the writ, and that therefore the time to raise those issues had long passed.
Lastly, Petitioners appealed the Superior Court’s decision to award costs to the Respondents for the proceedings on the 2010 writ of mandate. Petitioners argued that Respondents were not “prevailing parties” entitled to costs because Petitioners prevailed in the first challenge to the environmental review of this project. The Court disagreed, holding that Respondents prevailed against the 2010 writ of mandate and the award of costs was appropriate for the 2010 writ of mandate proceedings.