City of San Jose’s Addendum To A Certified Airport Master Plan EIR Does Not Violate CEQA
Aviation Alert (July 2014)The trial court, in a ruling rendered in August 2012, affirmed the City’s approvals of the addendum, rejecting petitioner’s arguments. In its June 6 decision, the Court of Appeal also affirmed the City’s approvals.
By way of background, the City certified the Final EIR for the Airport Master Plan in 1997; subsequently, a Supplemental EIR was certified in 2003 and, between 1997 and 2010, eight addenda were approved, including the eighth addendum at issue in this decision. The eighth addendum evaluated the environmental consequences of extending the Airport Master Plan’s planning horizon year from 2017 to 2027, and various modifications to certain projects for air cargo and general aviation facilities. The specific facilities modifications included changes to the size and location of future air cargo facilities, replacement of previously planned air cargo facilities with 44 acres of general aviation facilities, and modification of two taxiways to provide better access for corporate jets. (2014 WL2987959, pp. 1-2.)
In its decision, the Court of Appeal considered petitioner’s argument that the Airport Master Plan modifications addressed in the eighth addendum constituted a “new project,” such that use of an addendum is prohibited. The Court rejected the argument and distinguished two cases relied upon by petitioner: Center for Sierra Nevada v. County of El Dorado (2012) 202 Cal.App.4th 1156 and Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307. (2014 WL2987959, p. 7.) The Court emphasized that both of those cases involved a county’s adoption of a negative declaration for a project, whereas the issue at hand was whether the Airport Master Plan modifications fell within the scope of a prior program EIR. (Ibid.) Citing May v. City of Milpitas (2013) 217 Cal.App.4th 1307, the Court emphasized that – where environmental review has been conducted in a certified program EIR – CEQA requires further review only where major revisions to the EIR are required due to proposed substantial changes to the project or substantial changes in the circumstances, or new information has become available. (2014 WL2987959, p. 8.) The Court of Appeal found substantial evidence, discussed further below, that the Airport Master Plan modifications would not result in any new significant impacts substantially different from those described in the 1997 Final EIR and the 2003 Supplemental EIR; therefore, an addendum was the appropriate CEQA compliance vehicle. (Ibid.)
Noise. When responding to petitioner’s argument that the Airport Master Plan modifications would result in new or greater noise impacts than previously quantified in the underlying EIRs, the Court further found that the aviation noise analysis prepared by the City’s retained consultant was substantial evidence confirming that noise impacts from aircraft operations were decreasing, thus allowing for the reasonable conclusion that the modifications would not result in any new significant noise impacts or impacts substantially different than those analyzed in the prior EIRs. (2014 WL2987959, pp. 8-10.)
Greenhouse Gas Emissions. As to the greenhouse gas (GHG) issue, the Court of Appeal noted that information about the potential environmental impact of GHGs was known or could have been known at the time (i.e., 1997 and 2003) the prior EIRs for the Airport Master Plan were certified. Thus, the potential GHG impacts were not “new information” requiring a supplemental EIR. (2014 WL2987959, pp. 10-11.)
Air Quality. The Court also rejected petitioner’s air quality claim based on substantial evidence showing that the Airport Master Plan modifications would not increase activity or capacity levels beyond that studied in the previous certified EIR; rather, the 1997 EIR disclosed air pollution for higher levels of activity than that anticipated for the 2027 horizon year as operations are projected to decrease from 904.10 in 2010 to 722.70 in 2027. (2014 WL2987959, p. 12.)
Biological Resources. The Court of Appeal rejected petitioner’s contention that the Airport Master Plan modifications would significantly impact burrowing owl habitat, citing substantial evidence in the record showing that the impact on the burrowing owl population would not be substantially different from or greater than the impact disclosed in the 1997 EIR and would be addressed within the mitigation framework adopted for that EIR. (2014 WL2987959, pp. 12-14.)
If you have any questions or need additional information regarding the above, please do not hesitate to contact Gatzke Dillon & Ballance LLP at 760.431.9501. Importantly, the above discussion is only a summary of the opinion. Therefore, application of this opinion's primary holdings to other matters should be subject to careful and thorough evaluation. By Danielle Morone and Matt Dillon for Gatzke Dillon & Ballance LLP.