In a 65-page opinion certified for publication and filed October 22, 2015, the Second Appellate District Court of Appeal affirmed the Los Angeles County Superior Court’s judgment denying writ petitions by the City of Beverly Hills (“City”) and the Beverly Hills Unified School District (“District”). Petitioners and Appellants’ actions challenged respondent Los Angeles County Metropolitan Transportation Authority’s (“LA Metro”) EIS/EIR and related approval of the Westside Subway Extension Project (the “Project”). The Project involves the extension of Metro’s Purple Line heavy rail transit (HRT) subway system to the Westside of Los Angeles through the addition of 7 stations and 9 miles of subway line, and includes a new Century City station (the “Constellation station”) to be reached through a tunnel to be constructed underneath Beverly Hills High School. Beverly Hills Unified School District v. Los Angeles County Metropolitan Transportation Authority (Case No. B256605); The City of Beverly Hills v. Los Angeles County Metropolitan Transportation Authority (Case No. B256753) (2d Dist., Div. 4, 2015) ____ Cal.App.4th ___________, 2015WL 6383431.

The largest portion of the Court’s lengthy opinion covers the case’s factual and procedural background – beginning with LA Metro’s and other state and federal transportation planning agencies’ decades-long efforts to ameliorate the extreme freeway traffic congestion plaguing the Westside-Downtown Los Angeles commute. (The Court’s description of the Federal Transit Administration’s (“FTA”) extensive public process for considering, studying and “scoping out” transportation project alternatives which preceded and shaped the subsequent NEPA/CEQA analysis of the Project provides interesting context and background information; however, since it is not directly relevant to the case’s CEQA holdings it will not be covered in detail here.)

In the NEPA/CEQA scoping process, four options regarding the Century City’s station’s location and three general alignments for the Beverly Hills-Century City route were considered. As refined after public comments, the proposed Constellation station route would proceed west from the Wilshire/Rodeo station underneath Santa Monica Boulevard, turn southwest at Lasky Drive, pass beneath Beverly Hills High School, and continue west to Constellation Boulevard. Competing alternatives for a Santa Monica station and the Constellation station (and for routes to serve those stations) were “carried forward” for further analysis in the draft EIS/EIR, which analyzed (in the form of summaries from various detailed technical studies), inter alia, air quality impacts (for both construction and operation) of each Project alternative and noise and vibration impacts and geologic hazards for each alternative route and each station location option. Ultimately, and over the strenuous objections and criticisms of the City and District (and their technical experts), the final EIS/EIR concluded the Constellation station presented less seismic risk than the Santa Monica station option (which was eliminated as an option because it would have been located in an active fault zone), and that a route under Beverly Hills High School could safely be constructed.

Shortly before LA Metro’s board was scheduled to consider certification of the EIS/EIR and approval of the Project at a regular meeting, the City requested a transit hearing under Public Utilities Code § 30639 regarding the location of the Century City station, so the board only certified the EIS/EIR and approved and adopted CEQA findings as to Phase 1 of the overall Project, deferring action on Phases 2 and 3 (involving the stations and routes in dispute) until after the transit hearing. At the transit hearing, LA Metro’s counsel presented only documentary evidence (i.e., CDs of the final EIS/EIR and various technical reports related to the Century City station), and the City’s attorney presented six expert witnesses who testified about geotechnical and other technical matters and critiqued the work done by LA Metro’s experts. After the close of the transit hearing, at the LA Metro board’s next regular meeting it heard from 3 of LA Metro’s technical experts regarding its findings from the transit hearing, heard public comment, and then adopted the staff-recommended findings and decision for the transit hearing. It then moved on to the next agenda item, heard public comment, recertified the final EIS/EIR (which included an updated air quality analysis addendum), and voted to approve Phases 2 and 3 of the Project, adopting findings of fact and a statement of overriding considerations.

After the trial court ordered related the District’s and City’s separately filed writ actions challenging LA Metro’s actions on various grounds, and after briefing and several days of argument, it issued a detailed statement of decision denying both petitions. In affirming (after consolidating the District’s and City’s appeals for purposes of filing the administrative record, oral argument and decision), the Court of Appeal issued its lengthy published opinion. Key takeaways include:

  • While appellants argued that LA Metro was required to recirculate the EIS/EIR because it contained “significant new information” – i.e., fault investigation and tunnel safety reports – that supposedly “reversed the draft EIS/EIR’s analysis” by eliminating the Santa Monica station option, the argument lacked merit. A final EIR almost always contains new information, but such information is not “significant” so as to require recirculation “unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental impact of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project’s proponents have declined to implement.” (Citing Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1129.)
  • New information that merely clarifies or amplifies or makes insignificant modifications to an already adequate EIR does not require recirculation. (Citing at 1129-1130.) Moreover, “[a]n agency’s determination not to recirculate an EIR is given substantial deference and is presumed to be correct” such that the challenger ‘bears the burden of showing that substantial evidence does not support [it].” (Citing Western Placer Citizens for an Agricultural & Rural Environment v. County of Placer (2006) 144 Cal.App.4th 890, 903.)
  • The City’s and District’s arguments “mischaracterize[d] the contents and analysis of the draft EIS/EIR” in claiming it did not treat both the Santa Monica and Constellation station options with equal analytic vigor, and that it did not address environmental issues from tunneling beneath the high school. Petitioners’ arguments likewise mischaracterized the draft EIS/EIR’s discussions of sub-surface faults, seismic features and geologic hazards, which, in fact, “warned … that the Santa Monica station location ‘is compromised by its close proximity to the Santa Monica Fault.’ ” Contrary to Petitioners’ arguments – or more to the point – the public was given a full opportunity to comment on the environmental impacts of both station options, and the “new information” in the final EIS/EIR merelyconfirmed the Santa Monica station location was not viable because a fault ran through it, while also confirming and expanding on earlier analysis of the Constellation station’s potential impacts.
  • In sum, the final EIS/EIR’s elimination of the Santa Monica station option did nothing to change the Project’s potential impacts, and substantial evidence supported LA Metro’s decision not to recirculate due to the additional fault and tunnel safety studies “because the EIS/EIR was not changed in a way that deprived 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 any such effect.”
  • Substantial evidence also supported LA Metro’s decision not to recirculate the EIS/EIR due to what Petitioners claimed were significant new air quality impacts and greatly lengthened construction times disclosed in the final EIS/EIR. Before recertifying the final EIS/EIR, LA Metro issued an addendum, based on a May 2012 memo showing refinements to the construction approach and schedule from additional engineering efforts. When all was said and done, the addendum reduced reported impacts to the same or lower levels than the draft EIS/EIR, and reached the same significance conditions. Moreover, substantial evidence in the record – namely, the May 2012 memo – explained the addendum’s refinements (and the court noted the addendum itself didn’t need to do so) and supported the board’s decision not to recirculate.
  • One of the more interesting aspects of the Court’s decision was its rejection of City’s argument that the EIS/EIR was legally inadequate for failure to analyze localized air pollution and public health impacts from Project construction. City argued that CEQA requires analysis of all a project’s potentially significant effects, and that the EIS/EIR’s comparison of construction emissions to SCAQMD’s thresholds for regional adverse effects was deficient because it failed to measure impacts against localized significance thresholds. The Court found this argument unpersuasive and lacking support in any case, statute, or Guideline.
  • The Court likewise rejected (as without legal support) City’s “assertion that the EIS/EIR was required to include an analysis showing how the actual construction emissions will specifically impact public health.” While “CEQA requires EIRs to include any ‘health and safety problems caused by the physical changes’ in the environment as a result of the Project[,]” this requirement was satisfied by an air quality technical report circulated with the EIS/EIR “that identified the potential adverse health effects of exposure to each of the identified pollutants.” Per the Court, nothing in the cases cited by City – Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184 and Berkeley Keep Jets Over the Bay Com. v. Board of Port Comrs. (2001) 91 Cal.App.4th 1344 – required anything more or supported “City’s argument that [LA] Metro’s analysis of health risks was inadequate to comply with CEQA.” Rather, perfection and exhaustive analysis are not required in an EIR, and “[t]he need for thorough discussion and analysis is not to be construed unreasonably … to serve as an easy way of defeating projects.” (Citation omitted.)
  • The opinion’s final sections similarly disposed of City’s claims of error in LA Metro’s transit hearing conducted under Public Utilities Code §§ 30639 – 30645. The Court began by recounting the historical purpose of the statutory transit hearing provisions – i.e., “to create a transit authority that was responsive to local concerns.” (Thus, in addition to providing for local government official membership on the district board, the transit law “included provisions allowing a city or county to request a hearing before [LA Metro’s] board as to the reasonableness of rates or charges and as to any proposal for fixing the location of facilities.”) While the statutes governing how properly requested transit hearings are to be conducted provide that technical evidentiary rules do not apply, they also provide for cross examination of witnesses and preclude the use of inadmissible hearsay evidence to support a finding. Notwithstanding these rules and the City’s arguments, the Court rejected claims that the hearing was a sham, unfair, improperly precluded cross-examination of LA Metro’s witnesses, or relied on hearsay.
  • The Court held LA Metro’s board did not prematurely adopts findings of fact, and – of key import – its hearing as to Facility location was of a legislative character, and was not an adjudicatory proceeding to which “fair hearing” rights even applied. Per the Court: “[I]t is the nature of the decision made, not the attributes of the proceeding held before the decision, that determines whether the process is quasi-judicial… . The fact that the transit hearing employed procedures characteristic of the judicial process did not “‘convert the proceeding into a quasi-judicial function.’” [Citations] And, the rules against prejudgment of adjudicatory facts do not apply to quasi-legislative decisions. [Citation].”
  • City’s remaining transit hearing arguments were either waived or meritless. “Given that its stated purpose for requesting the transit hearing was to provide information that it believed was not included or properly analyzed in the EIS/EIR, it is not surprising that City accepted the hearing officer’s proposal to have [LA] Metro just submit its documentary evidence – primarily the EIS/EIR and supporting materials circulated [therewith] – in order to give the City the maximum time to make its presentation. Nor is it surprising that [LA] Metro’s documentary evidence was a primary focus of City’s presentationbecause City was attempting to show that the information and analyses in those documents were incomplete and/or inadequate. In other words, City got precisely the transit hearing it had requested.” (Emph. in orig.)
  • Nor did the fact that LA Metro’s experts spoke to its board after the transit hearing and the public comment following it had closed show any impropriety in the quasi-legislative proceeding; City acquiesced in the procedure followed and “Section 30642 does not give City the right to cross-examine [the EIS/EIR experts] after the transit hearing had ended.”
  • Finally, LA Metro’s reliance on the final EIS/EIR to support its station and alignment location decisions was not improper reliance on hearsay; “[r]ather, given the lack of guidance from the [transit hearing] statute and City’s stated purpose in requesting a hearing, [the Court] conclude[d] that [LA] Metro implicitly decided that, contrary to City’s assertion it had sufficient information to [make its decisions], and its findings of fact can be understood as merely listing the information it deemed to be sufficient … . In other words, the documentary evidence [consisting of the EIS/EIR and related technical documents] was not used as proof of the matter asserted; but simply to show that it exists, and therefore it is not hearsay.”

Apart from those portions of the lengthy opinion finding no CEQA requirement to compare air emissions data to localized thresholds and upholding as adequate the record evidence’s general correlation of the data to actual health effects, and those portions dealing with the Public Utilities Code’s peculiar transit hearing procedures, the decision breaks little or no new CEQA or land use law ground. It does reemphasize, however, that with respect to technical and scientific matters a lead agency is entitled to rely on its own experts in reaching environmental conclusions, and that mere disagreement of experts over technical or scientific issues or the sufficiency of studies and analysis in such areas is not sufficient reason to set aside an EIR. The Court’s opinion also underscores that the deferential “substantial evidence” standard of review applies to all such issues, and to lead agency decisions not to recirculate an EIR when new information is added (as is virtually inevitable) to the final EIR. As illustrated by the result in this case, application of these standards poses substantial burdens for CEQA plaintiffs to overcome.