In an opinion filed June 12 and ordered published on July 6, 2015, the Fourth District Court of Appeal affirmed the trial court’s judgment upholding a supplemental EIR (“SEIR 564”) for a long-planned expansion of the James A. Musick Jail Facility to accommodate 7,584 inmates.City of Irvine v. County of Orange (4th Dist., Div. 3, 2015) ____ Cal.App.4th ____, 2015 WL 4077320. The appellate decision represents the culmination of roughly three decades of litigation efforts by the neighboring City of Irvine to stop the jail expansion. It focuses on issues including the propriety of a “supplemental” EIR, the adequacy of the SEIR’s analyses of the project’s impacts on traffic and loss of agricultural lands, and the adequacy of its responses to comments.

In upholding the 1455-page “supplemental” EIR – six times larger than the project’s 1996 original EIR 564 – the Court explained that CEQA Guidelines § 15162 covers “subsequent” EIRs and § 15163 covers “supplemental” EIRs. Per the Court: “The basic rule is that whenever there is an already approved EIR and a “substantial” change in either the project, the surrounding circumstances, or new information that couldn’t have been discovered when the first EIR was prepared, either a “subsequent” or a “supplemental” EIR must be prepared. The only difference is that…if there has been a substantial change, which otherwise would require a “subsequent” EIR under…[§]15162, but “[o]nly minor additions or changes would be necessary to make the previous EIR adequate to apply to the project in the changed situation,” then the lead agency has the discretion (the key phrase is “may choose”) to prepare a “supplemental” EIR that “need only contain the information necessary to make the previous EIR adequate for the project as revised.”” The choice “is a discretionary one with the lead agency, thus tested under a reasonableness standard” and the courts “look to the substance of the EIR, not its nominal title. [Citation].” Here, the actual construction project and land were the same as in the original EIR, and the biggest change was “dropping 22 acres from direct agricultural use and instead devoting them to open space.” In light of this and the fact that planned adjacent land uses were now less intense than anticipated by the original EIR, County did not abuse its discretion in preparing a “supplemental” rather than “subsequent” EIR.

Regarding traffic, the Court held that the County’s use of 2014 and 2030 baselines against which to measure the project’s traffic impacts was sufficient under Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439. While the jail expansion project’s dependence on state funding necessitates a variable phasing that complicates the study of its precise marginal impacts on local intersections, “the County was [not] obligated to calculate year-by-year, intersection-by-intersection, traffic impacts that would take into account all the various permutations derivable from the variables of project phasing and nearby residential construction….” The City of Irvine’s argument that County needed to update its 2014 traffic baseline to avoid a “fatally unstable [project] description” confused “the need for a stable project description with the task of ascertaining the interim impacts of projectconstruction as that construction takes place – on a timeline that cannot be predicted with certainty.” Here, the SEIR’s project description was stable, and “[t]he only discrepancies to which Irvine points are functions of delays in the project, and those relate to traffic – by definition a fluid condition – and not the project itself.” Here, the SEIR provided adequate information about the project’s impacts on both current and future traffic conditions and any alleged failure to “update” the traffic analysis was, in any event, nonprejudicial – especially given the SEIR’s prediction of slightly less local traffic congestion in 2030 than in 2014 due to the projected completion of interim improvements.

Regarding the issue of the project’s impacts on agricultural land – the County’s jail facility formerly contained agricultural lands actively farmed by the inmates to grow their own food – the SEIR discussed and properly found infeasible seven potential mitigation measures. The measures considered and rejected included the purchase of agricultural conservation easements (ACEs), a transfer of development rights (TDR) program, and a “right to farm” ordinance. The overarching fact supporting County’s findings that all potential measures were infeasible was that land in the project’s vicinity had a value of $2 million per acre – a “price tag” that simply was cost-prohibitive for agriculture, which the record evidence indicated has a $60,000 per acre “break-even point” for economic viability in Orange County.

Finally, turning to the main focus of the City’s arguments, the Court rejected its claims that various of the SEIR’s responses to its numerous comments were deficient. The City made 88 “comments” in a 13-page, single-spaced letter from its mayor, which the Court noted “was obviously drafted for the mayor by counsel.” The Court (rather pejoratively) characterized the “comments” as consisting of various types, including “argumentative assertions” (some of which were intended to preserve issues, others of which were “followed by a demand for a change in the EIR”); “the functional equivalent of one litigant’s request for production of documents to another”; “classic litigation interrogatories”; and “some…genuine questions.” The Court reviewed the statutory authority for responses to comments – Public Resources Code §21153 – and its early case law treatment, concluding it is essentially a requirement that a lead agency consult with other affected public agencies concerning a project: “The text of the statute does not specifically require responses to comments. That requirement, rather, derives from…Guideline[s] [§]15088” which like its 1970’s predecessor requires responses to “significant” environmental points raised in the consultation process. Guidelines §15088 reflects a general mandate to provide a written response to “comments on environmental issues” (§15088(a)), and a more specific one to respond in good faith and “detail” to “significant environmental issues” raised in comments, when the lead agency’s position is “at variance” with the comment about such an issue. (Citing Browning-Ferris Industries v. City Council (1986) 181 Cal.App.3d 852, 862.)

The Court also perceived limits to the process: “…[W]e see nothing in Guideline 15088 that allows project opponents to use the comment-and-response process to wear down a lead agency, or delay a project, by the simple expedient of filing an onerous series of demands for information and setting up a series of hoops for the lead agency to jump through.” Thus, public agency comments must be “substantive” and within an agency’s expertise or area of responsibility. (See Pub. Resources Code, §21153(c).) The Court observed that, unlike the typical litigation discovery process, the lead agency recipient of a project opponent’s onerous demands for information cannot seek judicial relief (e.g., a protective order) to prevent abuse of CEQA’s comment-and response process.

In evaluating the sufficiency of County’s responses, the Court applied “a few oft-repeated principles” from the case law including: a response may properly refer to parts of the DEIR that analyze the environmental impacts raised by the comment; a general comment can be met with a general response; and the sufficiency of responses is “viewed in light of what is reasonably feasible.” Discussing relevant case law applying these principles in some detail, the Court found the SEIR’s responses adequate and that the City had failed to show any prejudicial error, as was its burden. (Citing Pub. Resources Code, §21168.5; Eureka Citizens for Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 378.)

The Court concluded its opinion by pointedly noting that while CEQA’s comment-and-response process can produce a better EIR by bringing significant and otherwise-overlooked environmental points to the public’s and decisionmakers’ attention, the process can also be abused (as the Court obviously believed it was in this case): “At its worst, [the comment-and-response process] could become an end in itself, simply a means by which project opponents can subject a lead agency’s staff to an onerous series of busy-work requests and “go fetch” demands.” …[T]he point of CEQA ‘is to inform government decision makers and their constituency of the consequences of a given project, not to derail it in a sea of administrative hearings and paperwork. This case is an example of the drowning in “paperwork.”” (Citations and internal quotes omitted.)