Why it matters: This decision further supports the use of programmatic EIRs for truly “programmatic” review of projects, even when project-level analysis has been done prior to certification of the program EIR. With respect to alternatives, a petitioner has the burden of demonstrating that a proposed alternative is not substantially similar” to an alternative already analyzed in the EIR, and a court will defer to a lead agency’s feasibility determination so long as it is supported by credible evidence.
Facts: The California High-Speed Rail Authority (Authority), the entity charged with developing a high-speed rail system within the state, prepared a programmatic EIR/EIS (“EIR”) which analyzed various potential alignments for the system between the Central Valley and the San Francisco Bay Area. The EIR was challenged on a number of grounds, including federal preemption, deferral of analysis, disagreement among experts and alternatives analysis.
Decision:
Federal Preemption: In responding to a challenge to the EIR, the Authority argued that the case must be dismissed because federal law preempted state law, including CEQA. The court sidestepped the issue by concluding that the “market participant doctrine” exception applied and there was no preemption. The market participant exception applies to protect a state’s action as a market participant, as opposed to when a state acts as a regulator.
Deferred Analysis: The court then turned to petitioners’ substantive CEQA claims. Petitioners first contended the Revised EIR improperly deferred analysis of the impacts of a vertical alignment through the Redwood City corridor to the project-level analysis. The Authority responded that the Revised EIR was programmatic and the precise alignment and structure of the system would be evaluated and refined during project-level analysis. A month before certification of the Revised EIR, Authority issued a Supplemental Alternatives Analysis Report (“SAAR”) as part of its project-level analysis. The SAAR concluded that an aerial structure was the only feasible alignment for that particular portion of the system. Petitioners contended that the SAAR eliminated all possible alignments through the Redwood City corridor, except for the raised berm option, and thus it was a foreseeable part of the future project and should have been analyzed.
The court rejected petitioners’ argument, holding that while project-level analysis had occurred prior to certification of the Revised EIR, such analysis was not required to be in the Revised EIR, a programmatic document. The court concluded that “[p]etitioners’ position would require an agency to stop all project-level analysis until after the program EIR was certified in order to avoid endless revisions.”
Ridership Model: Petitioners next challenged the ridership model used for the project description, arguing that the model was flawed and without supporting substantial evidence. The ridership model was prepared by a transportation engineering firm, with peer review done by the University of California. The peer review analysis concluded that the model contained calculations and methodologies which could result in inaccuracies. The court found that the difference of opinion between the engineering firm and the University of California was a dispute between experts that did not render the Revised EIR inadequate. The court found that the traffic engineers had explained the bases for their assumptions in the model, which constituted substantial evidence.
Alternatives: Petitioners also challenged the adequacy of the alternatives analysis, specifically arguing that the Revised EIR failed to consider the alternative alignments and features as proposed by a consultant hired by petitioners. The court, however, disagreed with petitioners. While their consultant had proposed various alternatives to the project, petitioners had failed to carry their burden to demonstrate that the alternatives proposed were not substantially similar to those already considered in the Revised EIR. According to the court, petitioners had to affirmatively show that the suggested alternatives were “sufficiently dissimilar” to those already contained in the Revised EIR. Because petitioners failed to do this, the Authority properly rejected the alternatives for further consideration in the Revised EIR.
Rejection of Infeasible Alternatives: Finally, petitioners argued that the Authority’s rejection of a proposed alternative as infeasible because it required the purchase or conversion of the Union Pacific Railroad right-of-way was inconsistent with its position to use other sections of the right-of-way. The court noted that the Authority’s determination that it was necessary and feasible to negotiate with Union Pacific as to other portions but not the alternative portion was entitled to deference.
Practice Pointers:
- When building an administrative record for a programmatic EIR, lead agencies should take care to emphasize the programmatic nature of the decision, especially if project-level review has occurred.
- A thorough alternatives analysis prepared at the outset may ultimately save time and effort, because project opponents must demonstrate that an alternative is not similar to one already included in the EIR.
- A feasibility determination is entitled to deference from the court, but still must be supported by evidence in the record. An agency should take care to ensure that the record supports the determination.
