“The Sunnyvale Decision” and Phase II of Expo: Game Changer or Footnote?

Since people like my sign pictures so much...
Is it just me, or does this sign suggest that grade separation is bad for kids?

Yesterday, Judge Thomas McKnew gave a victory to Expo Phase II by issuing a tentative ruling that, if he doesn’t change his mind in the next couple of weeks, would dismiss the lawsuit challenging the environmental review for the second stage of the Expo Line by Neighbors for Smart Rail.  Going into the hearing, most advocates were predicting dismissal based on the quality of the mitigations that the Expo Construction Authority has proposed at places where the light rail line will cross north-south streets.

After  NFSR lawyer John Bowman introduced case law that was decided five days ago, Sunnyvale West Neighborhood Association v. City of Sunnyvale City Council, things changed.  In Sunnyvale, a state superior court ruled that the city’s environmental review of a road extension violated state law because it based it’s review on traffic projections for 2020 instead of current conditions.  The mitigation plan for Expo are based on traffic projections for 2030.

McKnew gave both sides a chance to present briefs on Sunnyvale explaining their side’s view on the ruling.  Attorneys for the Construction Authority refused so the judge will make his ruling after studying the case himself, without the “aid” of either side outside of what was presented today.  Yesterday’s case was the entire public trial.  The judge will issue his final ruling without more testimony, probably in January or early February.

Proponents of Phase II are undeterred in celebrating yesterday’s decision.  The Tentative Order is now hosted on Friends 4 Expo’s websitePro-Expo bloggers are openly mocking NFSR and their attorney.  The mood at the Transit Coalition message boards is positively ebullient.  But a Tentative Order is just that, tentative.  If McKnew sees something in Sunnyvale that changes his mind, that would change everything. Regardless of the judge’s ruling, an appeal is almost assured as Sunnyvale provides hope for NFSR and allies.

But as to whether or not Sunnyvale changes the legal landscape, you’re probably not going to be surprised in who thinks it does, and who thinks it doesn’t.

Damien Goodmon explains Bowman’s argument:

The NFSR attorney argued that Sunnyvale supports their argument that the Expo EIR is invalid and violates CEQA because the Expo Authority used an improper baseline (2030) to evaluate the project’s impacts, and that CEQA requires them to have used some period between 2007 (notice of preparation) and Feb  2010 (the date of the board action certifying the DEIR).  There was also some discussion that this date may even be liberally allowed to 2015 (the projected date of operation), but focus and arguments were mostly on the need for the baseline to be sometime between 2007 – 2010.

He then sent along excerpts from the Sunnyvale decision that state, at least 13 different times, that an environmental review using projected traffic studies from the distant future as a baseline are a violation of CEQA.  For example:

An approach using hypothetical allowable conditions as the baseline results in ‘illusory’ comparisons that ‘can only mislead the public as to the reality of the impacts and subvert full consideration of the actual environmental impacts,’ a result at direct odds with CEQA’s intent. (Environmental Planning Information Council v. County of El Dorado, supra, 131 Cal.App.3d at p. 358․)

I should note that Goodmon wasn’t predicting that McKnew will change its ruling, just that such an outcome is not unthinkable.  At the same time, an appeal from NFSR would probably be based on Sunnyvale if McKnew holds his ground.  LA Weekly even quotes one of NFSR’S leaders, Colleen Heller, promising an appeal.

“This is just the prolongation of a fight that we’ve committed to until the end result,” said Colleen Heller, vice president of NFSR. “It ain’t over till the fat lady sings.”

Meanwhile, proponents are dismissing the impact this new case law could have as a last gasp effort after the Tentative Order rejected every other possible argument.  McKnew reportedly even joked with Bowman that the lawyer was trying to throw every argument he could out there and see what sticks.  There’s a lot of people who wrote me about the decision that were Expo supporters, but since Gokhan Esirgen called most of the judge’s Tentative Order correctly in Monday’s article, we’ll give him the last word on why he, and most other Expo supporters, aren’t worried about Sunnyvale.  Once the judge issues his Final Ruling, we’ll report it here:

Back to the Sunnyvale case, what the City of Sunnyvale had done was that they assumed all-out development in 2020, which brought considerably more noise, traffic, and pollution, and then measured the environmental impacts of extending the street against this baseline. Of course, this was plain cheating for at least two reasons. The reason one was that environmental impacts of such all-out development weren’t really within the scope of the EIR for the street extension. Therefore, there was no good way of predicting such impacts by an all-out development. Second reason, which was even more important, was that there was not even the slightest guarantee that there would be all-out development in Sunnyvale by 2020. In fact, it was far more than likely that there wouldn’t be. By using the all-out development as their baseline, City of Sunnyvale was lowering their environmental standards significantly and unjustifiably. The superior court had easily caught this cheating and rejected the EIR and the appeal court upheld the decision five days ago.

In the case of the Expo Line, the situation was completely different. The EIR never assumed all-out or anywhere near that extent of development and the place in the EIR where 2030 was used as a baseline was primarily in the grade-crossing analysis. Moreover, using 2030 as the baseline actually raised the environmental standards, not lowered it like in the Sunnyvale case. What was done in the Expo EIR was to assume about 15% more cars on the road in 2030, which resulted in the environmental criteria for grade separation and traffic mitigation being more strict because more cars on the road meant it was more difficult to run at-grade rail crossings.

  • Joel

    Oh yes, Damien Goodmon is such an expert on these things. His website, FixExpo.org, hasn’t been updated for a year. I guess that’s a sign of how successful his little group was in stopping the racist Expo train from serving his community.

    This project has involved dozens of public meetings and many legislative and regulatory approvals, for several years. Through all of this, the project has proven to be overwhelmingly popular. May construction begin soon.

  • Damien,
    What’s the problem with the Expo rail? This article doesn’t explain any of the reasons for challenging the EIR, not does it link to anything that does. In other words, when I read this, I have no idea what brought the issue to court. EIRs are routinely challenged when a group opposes a project, so this in and of itself doesn’t inform me about the main points of contention.

    Is this just mindless NIMBY opposition, as the sign above would indiacte. Whoever put that sign together is an idiot, as placing a train underground is a major safety improvement for kids, who will not have to deal with potentially lethal at-grade crossings.

  • I apologize. I could have included this link: http://la.streetsblog.org/2010/12/20/tomorrows-main-event-neighbors-for-smart-rail-gets-its-day-in-court/ when I referenced Monday’s story.

  • Articles

    Two comments and no discussion on the actual case. Should we be surprised?

    I’m not a lawyer, so I wouldn’t dare render a legal opinion. But I can read, and understand that with something this strong if I were placing bets it wouldn’t be with Expo.

    The final words of the decision:

    Decision makers and ordinary citizens should not be left wondering whether the project itself would significantly impact the existing environment.  [citation]

    “The failure to comply with the law subverts the purposes of CEQA if it omits material necessary to informed decisionmaking and informed public participation.   Case law is clear that, in such cases, the error is prejudicial.  [multiple citations] We agree with the superior court’s statement that the EIR, by using future traffic conditions as its “baseline,” “did not adequately explain to an engaged public how the proposed project was expected to change the present conditions in which they currently lived.”

    It begs the question: why didn’t Expo just use a regular baseline as required by CEQA instead of 2030? Can’t blame NFSR for Expo’s decision there. Though I’m sure ALL will.

  • Spokker

    “Two comments and no discussion on the actual case. Should we be surprised?”

    No, because no one here gives a damn about Cheviot Hills and their ability to drive around in their cars.

    The whole goddamn Westside could become immobile if you’re in a personal automobile and I wouldn’t care less. It would make it easier to get around on a bike if cars were stuck at 15 MPH instead of 50 as the law breakers enjoy doing.

  • Gokhan

    Expo EIR was not done any different than for other rail projects. South Coast Air Quality Management District guides in their CEQA handbook to use a 2030 baseline for public-transit projects. If the current year should be used instead, not only the Expo EIR would have to be redone but also the Purple Line extension to Westwood/VA Hospital, Downtown Regional Connector, Crenshaw Line, etc. EIRs. Obviously it’s standard methodology to try to decrease future traffic congestion in such EIRs and this is entirely valid.

    In the case of Sunnyvale, unlike for the Expo Line, the City handbook specifically dictated to use the current year as the baseline.

    As my comments in the above article explains, using 2030 for the grade-crossing analysis actually raises the environmental standards for the Expo Line. In the Sunnyvale case, they used future, all-out development as the baseline to reduce the noise, traffic, and pollution standards. In the case of the Expo Line, they in fact used the current year for noise and pollution, not the future year. The future year was primarily used for transit-system and grade-crossing analysis. Therefore, whether it’s noise, transit systems, or grade crossings, in all cases, Expo EIR ensured the use of highest environmental standards. This is in stark contrast to the Sunnyvale case, where they doctored the baseline to lower the environmental standards.

    In lame terms it’s apples vs. oranges and the Sunnyvale case simply does not apply to the Expo Line.

  • Eric B

    Using a 2007 or 2010 baseline for a train that won’t open until 2015 (at the earliest) is nonsensical. Gokhan’s point about whether the future baseline raises or lowers the threshold is key. If Expo used a 2030 baseline that raises the threshold, then NFSR’s point is largely irrelevant. Essentially they’re arguing that Expo should have used a less stringent threshold in their grade crossing analysis–the opposite of what they actually want.

    The fact that they are effectively contradicting their own stated position reveals that they are mining the EIR for technicalities rather than actually challenging the substance of the document.

    I’ve seen future baselines used in EIRs all the time. Typically it happens when discussing construction vs. operational impacts. For example, NBC Universal says that the visual impacts from construction of new high rises are less than significant because the profile of the building during construction will never be greater than the completed structure. They compare the impacts against the future baseline to determine that they are less than significant. It’s a routine practice.

    I’m all for thorough review (and I’ve filed more than my fair share of CEQA challenges), but this kind of frivolous lawsuit serves no public information purpose and undermines the intent of the law.

  • Damien, you mean Colleen Heller, not Callahan

  • @Articles – We shouldn’t be surprised when the article didn’t discuss the actual case, should we? That’s why I asked Damnien for more info, which he later provied. Not everyone who is interested in keping aware a rail developments knows the details of each local area and each case.

    @Spokker – If I didn’t “give a damn”, I wouldn’t have asked for more info, so your statement was obviously false before you wrote it.

  • As I have stated before, my suspicion is for some time the opponents knew the suit was probably not viable but after over a decade of overheated rhetoric they were stuck filing to save face. The kitchen sink approach (which evidently even the judge noticed) including the last minute grabbing of fresh case law bespeaks of a weak case being propped up and now falling to pieces before our eyes. I predict the inevitable appeal will be for nought.

    Goodmon is now applying his tunnel fixation to the Crenshaw project. Ridley-Thomas has actually been catering to the corridor resisdent wailing for un-needed tunnel segments but I imagine will back off when the cost etc. make it a clear non-starter. Goodmon may do some more of his ranting but I think given his dismal record to date that less and less people take him seriously–hell, maybe the L.A. Times will finally catch a clue and stop seeking his quotes.

  • Scott Mercer

    Dana’s comment about “a decade of overheated rhetoric” is probably downplaying it a little bit.

    The point is, Expo/Metro KNEW FOR YEARS that this lawsuit was coming and had plenty of time to cover themselves. Metro has multiple lawyers on the payroll. NFSR has (I think, CMIIW) one dude on the payroll. They took unusual precautions ahead of time to respond to/defend against any potential lawsuits.

    NFSR doesn’t care about the CEQA. They’re just using that as a wedge to get what they want, namely denying the rest of us a quality transit system so they don’t have to deal with the “problem” of a rail line in the near vicinity of their precious homes.

  • David

    @Eric well you must have lost those CEQA suits, because you’re clearly don’t understand it.

    Assessing a project’s impact based on the current environment allows the actual significant impacts of the project to be revealed. When those significant impacts are revealed THEN feasible mitigation measures must be identified and evaluated. (NFSR is probably arguing that includes grade separation, which Expo didn’t do in Cheviot/Rancho Park except at Sepulveda) That’s CEQA Evaluation Process 101. This is explained really clearly in the case:

    “In addition to assessing potential significant effects, ‘[a]n EIR must include a description of feasible project alternatives that would substantially lessen the project’s significant environment effects.  (Pub. Resources Code, § 21061;  Cal.Code Regs., tit. 14, § 15126.6, subds. (d), (f).)’  (In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143, 1167;  see §§ 21061 [EIR ‘means a detailed statement setting forth the matter’ specified in section 21100], 21100, subd. (b)(4) [EIR must include a detailed statement setting forth the alternatives to the proposed project];  CEQA Guidelines, § 15126.6, subd. (a) [EIR “must consider a reasonable range of potentially feasible alternatives that will foster informed decisionmaking and public participation”].)  ’Under CEQA, the range of alternatives that an EIR must study in detail is defined in relation to the adverse environmental impacts of the proposed project.  ․ The project’s environmental effects, in turn, are determined by comparison with the existing ‘baseline physical conditions.’  (Cal.Code Regs., tit. 14, § 15125, subd. (a);  see County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 952․)’  (In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings, supra, 43 Cal.4th at p. 1167.)

    “The CEQA Guidelines require ‘[t]he specific alternative of ‘no project’ ‘ to ‘be evaluated along with its impact.’  (Guidelines, § 15126.6, subd. (e)(1).)   Those guidelines explain that the ‘purpose of describing and analyzing a no project alternative is to allow decisionmakers to compare the impacts of approving the proposed project with the impacts of not approving the proposed project.’  (Ibid.) The CEQA Guidelines clarify that ‘[t]he no project alternative analysis is not the baseline for determining whether the proposed project’s environmental impacts may be significant, unless it is identical to the existing environmental setting analysis which does establish that baseline (see Section 15125).’  (Ibid., italics added.)”

    If the “existing environmental setting” has mitigations, then it’s not the existing environmental setting. It is the setting with mitigation.

    And comparing a project’s impacts against future hypothetical conditions is deceptive. Again, here’s Sunnyvale, this time quoting the Supreme Court precedence:

    “The Supreme Court explained [in Communities for a Better Environment]:  ’An approach using hypothetical allowable conditions as the baseline results in ‘illusory’ comparisons that ‘can only mislead the public as to the reality of the impacts and subvert full consideration of the actual environmental impacts,’ a result at direct odds with CEQA’s intent.”

    It ignores among other things short-term project impacts. This is to say nothing of the fact that these are totally assumptions, whereas real-time on the ground data is more concrete.

    Finally the case also says that while long-term projections may have a purpose in an EIR, they are not to be substituted for the baseline for the reasons stated above.

    @Scott ever think Expo needs all of those attorneys because they keep screwing up so much? They also keep losing.

  • Chris L

    Sore losers are sore.

  • ds

    Doing the analysis based on expected future traffic conditions is the standard practice for rail projects.

    Download the EIRs for completed rail projects like the Gold line, and you will see they did the same thing.

    If the EIR was based only on current conditions, it WOULD have to be thrown out and redone, because it would understate the environmental impacts that the rail line would create. Traffic is expected to increase by 2030, which will mean that the at-grade crossings in the Expo line will have a greater environmental impact than they do currently.

  • David

    The “no build” alternative and the “baseline” are two different things. Again this is explained clearly in the decision. It’s a CEQA guideline and it has been there for years.

    Here’s why a good baseline is important.

    If the baseline is today, the analysis for an at-grade crossing for an intersection operating at LOS C might show that the intersection declines to LOS E. That would be considered a significant impact, because it takes a street operating at an acceptable level of service to a failing level of service, and it would require identification of feasible mitigation measures including grade separations.

    20 years in the future that same intersection might be operating at LOS E. Since the intersection is already failing the at-grade crossing might show the impact as significanlty lesser. Possibly “less enough” to where it is deemed to have no significant impact. If there is “no significant impact” at the intersection, then there is no need for identification of feasible mitigation measures.

    And again, those future assessments are all hypothetical, another reason they’re inappropriate for a baseline. Again, here’s why: an EIR done 30 years ago, projecting to today would have assumed that the Wilshire subway would be well beyond Fairfax to the west, and have reached East LA to the east.

    I haven’t read all rail line EIRs so I don’t know what standard practice is or isn’t for them. I do know that it is standard practice for developers and agencies to do what they can get away with in large part because they all know that the deck is stacked so high against challengers and the cost is so high they’re likely not to be challenged in court. For example, the city of Los Angeles has been getting away with Mitigated Negative Declarations where EIRs should have been required for years.

    If Metro or other state agencies have been getting away with using the no build for the baseline, I suppose that would have to change or they can remain susceptible to legal challenges, where the case law is not in their favor. “But we’ve been breaking the law for years, is not a favorable argument in court.”

  • David

    ds: “If the EIR was based only on current conditions, it WOULD have to be thrown out and redone, because it would understate the environmental impacts that the rail line would create.”

    No one has argued that the EIR should ONLY consider the impacts on the present condition. In fact, I said earlier that the decision said forecasts may have a purpose an EIR. An EIR for this project, probably requires both to be compliant. Again from the decision:

    “This is not to say, however, that discussions of the foreseeable changes and expected future conditions have no place in an EIR. To the contrary, such discussions may be necessary to an intelligent understanding of a project’s impacts over time and full compliance with CEQA.”

    And here:

    “There is no doubt that comprehensive regional transportation planning must look at the big picture and take the long view.   But we emphasize that the methodologies for forecasting traffic conditions and planning sound transportation systems and projects are not being challenged here.   Once a specific roadway project is proposed and becomes the subject of an EIR under CEQA, however, a straightforward assessment of the impacts produced by the project alone on the existing environment is the foundational information of an EIR even where secondary analyses are included.   Nothing prevents an EIR from also examining a project’s beneficial impacts over time, if reasonably foreseeable, but it must be remembered that the purpose of an EIR is to avoid or lessen each significant environmental effect of a proposed project whenever feasible.”

  • LAofAnaheim

    If the judge was that concerned about a violation in relation to Sunnyvale, then the judge would not have issued a “tenantive decision to Expo”. From my understanding, and discussing with lawyer friends, a “tentative decision” is like 99% the final outcome. EIR’s are always challenged by neighborhood associations, this is not an “LA thing”, it happens everywhere around the USA. Sunnyvale must have lost because it really f’d things up, whereas I cannot see a transit agency as large as Los Angeles really defy the rules. They’ve been challenged before with NOBLAG and the Gold Line and the San Fernando Valley with the Orange Line, what makes you think they will not prevail with Expo? Matter of fact, has Metro even lost a single case over an EIR?

    I’m sure the judge just wants a few days to ponder over this “new precedent” a see how it applies to the Exposition Line case. Again, I can’t see this affecting the judge’s tentative decision, or else he’d look really bad saying “yes” and then saying “no”.

  • ds

    It’s a completely nonsensical argument, because by saying that 2030 is an inappropriate baseline, they’re arguing that the Expo Authority is violating CEQA for doing TOO MUCH environmental mitigation. I’m sure the appeals court is going to love that one.

    Sunnyvale got caught doing an EIR in an unorthodox way, using data that is outside the scope of typical road projects, in order to attempt to downplay the negative environmental impact of their project.

    Expo is using the 2030 data to err on the safe side toward environmental mitigation.

    Expo did its EIR literally by the handbook, and in the same way it was done for several approved or already constructed transit projects.

  • Joel

    @David: “Assessing a project’s impact based on the current environment allows the actual significant impacts of the project to be revealed. When those significant impacts are revealed THEN feasible mitigation measures must be identified and evaluated. (NFSR is probably arguing that includes grade separation, which Expo didn’t do in Cheviot/Rancho Park except at Sepulveda) That’s CEQA Evaluation Process 101.”

    Expo didn’t study grade separation in Cheviot/Rancho Park except at Sepulveda? Well that’s news to me! I seem to remember meeting after meeting, and page after page in the FEIR of the Levels of Service (LOS) at every grade crossing on the line, including Overland and Westwood.

    I have to assume you know quite a bit about environmental law in general, but very little about this particular case.

  • Michael

    The sign looks like the exact opposite of what Beverly HIlls High School wants for the Purple Line extension!

  • David

    ds said: “It’s a completely nonsensical argument, because by saying that 2030 is an inappropriate baseline, they’re arguing that the Expo Authority is violating CEQA for doing TOO MUCH environmental mitigation.”

    I’m not sure where that one comes from. You don’t seem to be reading either my comments or the decision. Just like your comments on what the case is. Not sure where this extra stuff is coming from, the decision makes clear that the discussion is focused on determining whether a future projection outside the date of approval is allowable according to CEQA. You seem to be making the case seem more complicated that it actually is, despite the fact its purpose and applicability to Expo (considering they did the same thing) is clearly laid out in the introductory paragraphs of the decision:

    “In this California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) 1 case, the superior court granted a peremptory writ of mandate compelling the City of Sunnyvale City Council (“City Council”) to set aside its October 28, 2008 approval of the proposed Mary Avenue Extension (MAE) Project and its certification of the Final Environmental Impact Report (FEIR).   The FEIR used projected traffic conditions in the year 2020, based on expected growth under the City of Sunnyvale’s general plan and in neighboring communities, as its ‘baseline’ to evaluate the roadway project’s traffic and related impacts.   The FEIR did not consider the project’s traffic and related impacts on the existing environment.

    “The City Council appeals, arguing that the EIR’s ‘use of 2020 conditions as a baseline offers the most accurate and informative portrayal of the environmental impact of the MAE.’ Respondents Sunnyvale West Neighborhood Association and named individuals maintain that the impacts of the project must be measured against current, existing physical conditions and a comparison against ‘a baseline as it might exist in 2020 cannot substitute for a comparison with current, existing conditions.’

    “We affirm.”

    @Joel you’re probably confusing Expo’s grade crossing policy analysis with a CEQA analysis. They’re not the same process.

    CEQA analysis would go something like this:

    There is a significant traffic impact impact at the Westwood intersection. To address this significant impact the feasible mitigation measures are X, Y, Z. Then in each section of the EIR document it would consider the impacts of X, Y and Z proposed mitigation measure. For an aerial structure at Westwood the visual impact would be assessed in the aesthetic section, the noise impact would be in that section, the traffic impact would be in that section, etc. In some of the sections the impact would literally be one line “Mitigation measure X has no significant impact to ____.”

    That didn’t happen in the EIR with respect to grade separation as a potential mitigation measure at any intersection in the Cheviot Hills/Rancho Park area except for Sepulveda. If it does exist in the document please point to it.

    @LAofAnaheim: “If the judge was that concerned about a violation in relation to Sunnyvale, then the judge would not have issued a “tenantive decision to Expo”.”

    A tentative decision is just that, which is why its kind of funny to see people celebrating or admitting defeat. You’re right they typically don’t change. But some times they do. In CEQA cases they’re issued for the purpose of narrowing the arguments at the hearing. Most of CEQA cases are argued in the briefs well before the trial and then there is the argument at trial, which are rarely longer than a day.

    The tentative sort of says to the attorneys: “here’s my preliminary determination, now tell me why it is correct, or more importantly tell me why it is wrong.” If the arguments as to why it is wrong aren’t compelling the tentative is typically issued the day of the hearing. It wasn’t here, likely because the Sunnyvale decision came down just 4 days earlier. Judge didn’t have time to consider it, attorneys didn’t have time to argue it until the day of the case. So under these circumstances a reversal is completely plausible.

  • Eric B

    In response to David, here’s what Judge McKnew had to say about the matter (via LA Weekly):

    “To analyze the project’s effects on transportation assuming that the project’s operation is the only change that will occur, is absurd. The very reason for the project is to address long term transportation concerns.”

    I’ll throw my lot in with him on this one.

    It’s great that you’re quoting the guidelines, but something is getting lost in the translation. In your example from comment #15, if an intersection will naturally decrease in LOS from C to E, then adding the train would likely be less than significant with mitigation. The train is not required to mitigate more than its contribution to the (cumulative) impact. Case law is pretty clear on that.

    However, that is not even the issue in this case. Again, the practical effect of the 2030 baseline is key. In Expo’s case, they used the 2030 projections to say that even with increased vehicular traffic, these intersections perform adequately at grade. This is the opposite of the example above where intersections were degrading with the train as a partial factor. If a train can run through an intersection with greater traffic volumes than “present” conditions with adequate LOS, then under no circumstances could using an earlier baseline require more mitigation. If there is no degradation (even under greater volumes), then there is a less than significant impact.

    Thanks for bringing in so much source material to this discussion. These forums always benefit from that.

  • Eric B

    More context from the decision:

    Baseline
    The FEIR explains the methodology used to evaluate traffic impacts. The impact threshold for intersections used in this FEIR utilizes the Highway Capacity Manual (HCP) operations methodology to quantify existing and future condition at all intersections with and without the proposed project. AR 350, 1055. The existing and future air quality conditions were evaluated using methods and significance levels recommended by the SCAQMD. AR 504 15310-12, 15352-54. CEQA requires evaluation of the project’s effects on both existing and future conditions. 14 CCR § 15126.6(e)(3)(b). Because a “No Project” will not preserve the existing physical conditions, it is not only reasonable, but necessary, to take this dynamic approach of determining impact and significance over time. See Save Our Peninsula Committee v. Monterey County (2001) 87 Cal. App. 4th 99, 125 (“in some cases it is necessary to consider conditions over a range of time.”) By analyzing delay as a result of the project at a higher number of congested
    intersection in year 2030, the FEIR adopted a more rigorous test for identifying significant traffic impacts. AR 17,218-34, 350. To analyze the project’s effects on transportation assuming that the project’s operation is the only change that will occur, is absurd. The very reason for the project is to address long term transportation concerns. Substantial evidence supports the use of this baseline.

    Translation:
    Expo looked at current and future, asked which is more stringent, and use the more stringent 2030 conditions as a baseline to ensure maximal mitigation for impacts. Standard practice, and good policy.

  • Scott Mercer

    @ David, Comment #11:

    I’m sorry, how has Metro “screwed up”? I don’t believe they have.

    And how does Metro “keep losing”? This decision was in Metro’s favor. The final decision will also be in Metro’s favor, based on what the judge has already said, and barring some kind of highly unlikely reversal on his part.

    The Farmdale decision was also in Metro’s favor (they offered a compromise of building a station at Farmdale, instead of trenching the entire line, which is what Damien Goodmon and others wanted them to do; they saved tons of taxpayer money AND kept the kids at the school safe…the CPUC accepted this. Metro WIN…and a win for the public).

    What color is the sky in your world, David?

  • David

    Eric B: “Again, the practical effect of the 2030 baseline is key. In Expo’s case, they used the 2030 projections to say that even with increased vehicular traffic, these intersections perform adequately at grade. This is the opposite of the example above where intersections were degrading with the train as a partial factor. If a train can run through an intersection with greater traffic volumes than “present” conditions with adequate LOS, then under no circumstances could using an earlier baseline require more mitigation. If there is no degradation (even under greater volumes), then there is a less than significant impact.”

    Here’s what you seem to be missing. It all relates to the definition of “adequate LOS.” The Expo EIR says the two standards for a “significant traffic impact” are:
    1) for intersections operating at an acceptable Level of Service (LOS A thru D), a decline to failing (LOS E); or
    2) for intersections operating at failing (LOS E or F), an increase in average vehicle delay of 4 seconds or more.

    These are two completely different thresholds, requiring different types of analysis.

    In my post above I give the example of an intersection where it operates at LOS C today, but that in 2030 operates at LOS E. And to be clear, when I say operates at LOS E in 2030 I mean WITHOUT the train (the “no build”), not with the train. Therefore, the same intersection if evaluated today (LOS C) will have a different analysis/threshold to cross for the traffic impact to be considered a significant (it would have to decline to LOS E), than it would if evaluated in 2030 assumed conditions (it would have to show an average vehicle delay of 4 seconds).

    In practical application, all you need is one example of an intersection today operating at LOS D that with the train declines to LOS E, but in the future is at LOS E or F, but only declines to 3.9 seconds. But the public wouldn’t know that, the EIR would even disclose it if the baseline isn’t the current physical conditions. That is in essence is Expo’s problem, and it’s why I would think that CEQA precludes it.

    And again I re-emphasize the problems with using future projections solely as a baseline for evaluation.

    Consider the possibility of a roadway traffic relief project near an Expo at-grade crossing to be implemented in 2025, which obviously would be considered as part of a 2030 baseline. First, what about the impacts for 2015 – 2025, the date of operation until the date the traffic relief program goes into effect? Second, what if the project is not implemented for whatever reason (see my Wilshire subway explanation above)? Third, what if the program is not as successful as predicted (cite any number of examples in the history of public works)?

    Also future assumptions may ignore or not adequately consider the impacts of development projects (like Casden). It could conceivably omit anything it deems not favorable.

    Concrete on the ground traffic counts are far less susceptible to these questions, surely you agree.

    Eric B: “The train is not required to mitigate more than its contribution to the (cumulative) impact. Case law is pretty clear on that.”

    I don’t know that to be true. Cumulative impacts are a section to their own in the EIR. A project may have a significant noise impact on a particular sensitive receptor (a school for example), but less than significant cumulative impact. It doesn’t mean the significant noise impact doesn’t have to be mitigated. But I would be interested in seeing the citations that you say make it clear.

    Finally, you quoted a part of the tentative decision that references Save our Peninsula to validate the 2030 baseline. From the tentative decision:

    “Because a ‘No Project’ will not preserve the existing physical conditions, it is not only reasonable, but necessary, to take this dynamic approach of determining impact and significance over time. See Save Our Peninsula Committee v. Monterey County (2001) 87 Cal. App. 4th 99, 125 (”in some cases it is necessary to consider conditions over a range of time.”)”

    First, this is in direct conflict with CEQA. Here the tentative ADMITS the baseline is not based on the existing physical conditions.

    Second, the Save our Peninsula case did not establish or permit a baseline outside the date of project approval, as is being done in the Expo EIR. Again, the Sunnyvale decision in referencing the Supreme Court precedent:

    “The [Supreme] [C]ourt [in Committee for a Better Environment] indicated that, since environmental conditions may vary from year to year, the baseline might take into consideration conditions that have existed over a range of time.  (Id. at pp.   327-328) ‘In some circumstances, peak impacts or recurring periods of resource scarcity may be as important environmentally as average conditions.   Where environmental conditions are expected to change quickly during the period of environmental review for reasons other than the proposed project, project effects might reasonably be compared to predicted conditions at the expected date of approval, rather than to conditions at the time analysis is begun.   ( [Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99,] 125-126․)  A temporary lull or spike in operations that happens to occur at the time environmental review for a new project begins should not depress or elevate the baseline;  overreliance on short-term activity averages might encourage companies to temporarily increase operations artificially, simply in order to establish a higher baseline.’  (Id. at p. 328.)   The Supreme Court never sanctioned the use of predicted conditions on a date subsequent to EIR certification or project approval as the ‘baseline’ for assessing a project’s environmental consequences.

    “As to the particular project at issue in Communities For A Better Environment, the Supreme Court recognized that ‘refinery operations fluctuate over time.’   But it made clear that, regardless of the method ultimately adopted, the district must compare ‘existing physical conditions’ without the project to the conditions expected to be produced by the project because ‘[w]ithout such a comparison, the EIR will not inform decision makers and the public of the project’s significant environmental impacts, as CEQA mandates. (§ 21100.)’  (Ibid.)”

  • Joel

    @David: Not being a lawyer (as you apparently are), I do not have the training to refute your legal logic or your citations of case law. Unfortunately, I also don’t currently have access to the EIR documents needed to refute your statements of fact. (Expo’s website was recently redesigned, and currently has broken links to the EIR documents.) For all I know, you may be right about all of this.

    I will say, most of the plaintiff’s arguments (which are similar to your arguments) were refuted by the judge himself, who I have to assume has as much legal training as you. The judge is currently taking a second look at the baseline argument, and we’ll see how he rules soon enough.

    In any case, let’s be clear about one thing. The plaintiffs have no interest at all in the quality of the EIR, except to the extent that it can be used to delay or halt construction of Expo through Rancho Park. NFSR has no interest in *any* rail, “smart” or not, running through Rancho Park/Cheviot Hills.

    As a transit user and advocate, I can say that the traffic standards for this line are as good (if not better) than those applied to any existing Metro Rail line. The residents of Rancho Park do not have any special rights. They certainly have no right to grade separations at Overland and Westwood, where a standardized analysis of those intersections has shown them to be unwarranted.

  • Joel

    Yesterday, I emailed Expo’s webmaster saying that the EIR links were broken. These links have now been fixed. In particular, the part of the FEIR document relating to traffic impacts is here:

    backup.buildexpo.org/phase2/Phase%202%20FEIR%20Documents/TBR%27s/TBR%20Transportation-Traffic%20w%20Append%20Final_Dec09.pdf

  • Joel

    The following facts/claims come from the FEIR Technical Background Report (see link above) about traffic impacts at the Westwood and Overland intersections.

    WESTWOOD/EXPOSITION, Northbound. (Intersection 51 in the report.)
    Existing description: Secondary Highway with one nb lane and two sb lanes. (Page 6)
    Current LOS, no build: C (morning), F (evening). (Page 10)
    2030 LOS, no build: D (morning), F (evening). (Page 51)
    2030 LOS, TSM alt: D (morning), F (evening). (Page 51)
    2030 LOS, LRT2 alt: D (morning), C (evening). (Pages 59-61)

    WESTWOOD/EXPOSITION, Southbound. (Intersection 52 in the report.)
    Existing description: Secondary Highway with one nb lane and two sb lanes. (Page 6)
    Current LOS, no build: C (morning), F (evening). (Page 10)
    2030 LOS, no build: E (morning), F (evening). (Page 51)
    2030 LOS, TSM alt: E (morning), F (evening). (Page 51)
    2030 LOS, LRT2 alt: B (morning), B (evening). (Pages 59-61)

    OVERLAND/NORTHVALE. (Intersection 54 in the report.)
    Existing description: Major Highway with two nb lanes and two sb lanes. (Page 6)
    Current LOS, no build: F (morning), A (evening). (Page 10)
    2030 LOS, no build: E (morning), A (evening). (Page 51)
    2030 LOS, TSM alt: E (morning), A (evening). (Page 51)
    2030 LOS, LRT2 alt: C (morning), C (evening). (Pages 59-61)

    Note that with the LRT2 option, traffic LOS gets worse in two settings.

    Morning traffic, northbound at Westwood/Expo: LOS declines from C to D, when the baseline is 2007.

    Evening traffic, at Overland/Northvale: LOS declines from A to C, regardless of baseline.

  • Sean

    Anyone know how much eminent domain has been used for the Expo line? Or know is any is planned for Phase II?

  • Spokker

    If I were against a rail line I would call it the Killer Train from Outer Space.

  • I think the NFSR (Nuts for some roadblocks) are just stalling until 2012 when this issue will no longer matter!!!!

    http://www.2012endofdays.org/Mayan/Mayan-Calendar.php

  • Spokker: “It Came From The Inner City!”

  • @Sean – Anyone know how much eminent domain has been used for the Expo line? Or know is any is planned for Phase II?

    Very little, since it is mostly on the existing Metro-owned right-of-way. Small sites for traction power substations have been acquired. The biggest acquistions for phase 2 are two properties just east of 17th Street, the Verizon site for the maintenance facility, and the Sears Auto Center at 4th Street. A recent Expo board agenda suggests that eminent domain proceedings are being started for the corner of 17th and Colorado (the volunary sale offer wasn’t accepted).

  • Sean

    Thanks, Darrell. Was wondering if any of the galleries at Bergamot are going to get kicked out during phase II.

  • Sean, see page 2 of the Expo Final EIR’s “Appendix F: Station Plans and Maintenance Facility (2 of 3)” for a site map of Bergamot. It shows just the building closest to Olympic and 26th being removed for the future Expo station.