NFSR finds itself in an odd position. The California
Supreme Court agreed with NFSR that Expo violated CEQA.
Specifically, the court found that Expo violated CEQA by only using a projected
future baseline and not using an existing baseline. The ruling can be found here.
Despite having “won on the law,” NFSR’s petition to have the
line re-studied using a proper baseline was denied. Needless to say, we
are confused and disappointed. While agreeing with NFSR on the law, the
court declined to reverse the Expo project based on the following logic:
“Although the EIR failed to analyze
the project’s impacts on existing traffic congestion, it did include an
extensive analysis of year 2030 congestion effects, finding no significant
adverse impacts. That detailed analysis demonstrates the lack of grounds to
suppose the same analysis performed against existing traffic conditions would
have produced any substantially different information.”
In short, the court has said that a 2030 projection, while
improper, somehow provided complete insight into what would occur years
earlier.
It is no surprise that NFSR respectfully disagrees.
While we are gratified to have been proven correct on the law, we are truly
stunned that the court has found that a projected future baseline 23 years in
the future somehow can accurately predict conditions in the near- and
mid-term. Much can change in 23 years not the least of which is
governmental budgets, technology, new understanding of fire response times and
population estimates. In fact, just during the pendency of this case, new
census numbers were released that were materially and substantially different
from those used in the Expo EIR.
One of the judges specifically agreed with NFSR and stated:
“I respectfully disagree with the
court’s conclusion that the EIR‟s failure to measure traffic congestion and air
quality impacts against a baseline of existing conditions “did not deprive
agency decision makers or the public of substantial information relevant to
approving the project.”
He went on to say:
“Without knowing how significant
this transient impact on traffic congestion might be, how are the public and
decision makers to decide whether the short-term pain is worth the long-term
gain promised by the light-rail project?
NFSR further respectfully disagrees with the court’s finding
on the parking issue.
This issue involved the inevitable parking problems in the
areas surrounding the stations and Expo’s promise to “work with” the City to
put in preferential parking districts if needed. NFSR argued that promising
to “work with” the City on the installation of a parking district didn’t
guarantee relief and was not within the power of Expo – or the City, and
represented “deferred mitigation.” The court disagreed, finding:
CEQA, however,
allows an agency to approve or carry out a project with potential adverse
impacts if binding mitigation measures have been “required in, or incorporated
into” the project or if “[t]hose changes or alterations are within the
responsibility and jurisdiction of another public agency and have been, or can
and should be, adopted by that other agency.”
NFSR believes the court missed a critical point, namely that
preferential parking districts require a vote of the people as they involve a
property-related fee under Prop 218.
NFSR’s attorneys are reviewing this unique opinion to
understand what it means and does not mean.
As we increase our understanding of the ruling and our
options we will have further comments.
One thing is certain: Expo violated CEQA in the preparation
of its EIR. This should deeply concern our elected officials as they
decide how to deal with the Expo line and this ruling.
