CC - Item 3A - Attorney General in SOC v. Rosemead•
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SECOND DISTRICT, CASE NO. B186718
IN THE COURT OF APPEAL, STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION ONE
SAVE OUR COMMUNITY
Plaintiff and Appellant,
V.
CITY OF ROSEMEAD
Defendant and Respondent.
and
WAL-MART REAL ESTATE BUSINESS TRUST, et at:
Real Parties-in-Interest
Appeal from the Superior Court for the County of Los Angeles
The Honorable David P. Yaffe, Judge
Case No. BS093012
ANUCUS BRIEF OF THE STATE OF CALIFORNIA,
EX REL. ATTORNEY GENERAL BILL LOCKYER
IN SUPPORT OF APPELLANTS
BILL LOCKYER
SUSAN L. DURBIN (SBN 81750)
Attorney General
Deputy Attorney General
TOM GREENE
Chief Assistant Attorney General
Office of the Attorney General
THEODORA P. BERGER
1300 I Street, Suite 125
Senior Assistant Attorney General
P.O. Box 944255
Sacramento, CA 94244-2550
Telephone: (916) 324-5475
Facsimile: (916) 327-2319
Attorneys for Amicus Curiae State of California
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TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE 1
INTRODUCTION ............................................4
STATEMENT OF THE CASE 7
STANDARD OF REVIEW 11
ARGUMENT ...............................................13
1. THE EIR FAILS TO FULLY INFORM
THE PUBLIC OF THE AIR QUALITY
EFFECTS OF THE PROJECT, INCLUDING
REGIONAL EFFECTS . 13
A. The EIR Fails to Inform the Public of
the Conflict Between the AQMP and
the Air Quality Effects of the Project 14
B. Neither the Air Quality nor the Public
Health Effects of the Pollutant Emissions
the Project Will Cause Have Been
Adequately Disclosed 17
1. Amounts and Effects of Construction
Impacts Are Not Adequately
Disclosed 18
2. Amounts and Effects of Operational
Effects Are Not Adequately
Disclosed .............................19
11. THE EIR FAILS EITHER TO ADOPT ALL
FEASIBLE MITIGATION MEASURES OR
TO FIND SUGGESTED MITIGATION
MEASURES INFEASIBLE 21
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TABLE OF CONTENTS (Cont'd)
Page
111. RESPONSES TO COMMENTS IN THE EIR
DO NOT COMPLY WITH CEQA IN THAT
THEY ARE CONCLUSORY AND DO NOT
ACCURATELY REFLECT THE SEVERITY
OF THE AIR POLLUTION EFFECTS
OF THE PROJECT 25
A. A Statement of Overriding Considerations
Does Not Remove the Duty to Adopt
All Feasible Mitigation Measures . 28
CONCLUSION .............................................29
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TABLE OF AUTHORITIES
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FEDERAL STATUTES
42 U.S.C.§ 7509(b) ...........................................8
STATE CASES
Bakersfield Citizens for Local Control v. City of Bakersfield
(2004) 124 Cal. AppAth 1184 14,19
Bozung v. Local Agency
(1975) 13 Cal.3d 247 ...................................11
Citizens of Goleta valley v. Board of Supervisors
(1990) 52 Cal.3d 553 12,29
County of Inyo V. City of Los Angeles
(1977) 71 Cal.App.3d 185 12
D'Amico v. Board of Medical Examiners
(1974) 11 Ca1.3d 1 ......................................2
Federation of Hillside and Canyon Associations v.
City of Los Angeles (2004) 126 Cal.App.4th 1180 24
Fisher v. City of Berkeley
(1984) 37 Cal.3d 644 3
Friends of Mammoth v. Board of Supervisors
(1972) 9 Ca1.3d 247 11
Friends of the Eel River v. Sonoma County Water Agency
(2003) 108 Cal.App.4th 859 7
Gentry v. Murietta
(1995) 36 Cal.App.4th 1359 13
Kings County Farm Bureau v. City of Hanford
(1990) 221 Cal.App.3d 692 6,30
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TABLE OF AUTHORITIES (Cont'd)
Page
Lance Camper Manufacturing Crop. v. Republic Indemnity
(2000) 90 Cal.App.4th 1151
3
Laurel Heights Imp. Assn v. Regents of the
University of California (1988) 47 Cal.3d 376
16
Laurel Heights Improvement Assn. v. Regents of the
University of California ,(1988) 47 Cal.3d 392 13, 16
, 18, 25
Los Angeles Unified School Dist. v. City of Los Angeles
(1997) 58 Cal.App.4th 1019
passim
Mountain Lion Foundation v. Fish & Game Com.
(1997) 16 Cal.4th 105
. 12,21
Napa Citizens for Honest Government v. Napa County
Board of Supervisors (2001) 91 Cal.App.4th 342
21
San Francisco Ecology Center v. City and County of San Francisco
(1975) 48 Ca1.App.3d 584
28
Save Our Peninsula Committee v. Monterey County
Bd. of Supervisors (2001) 87 Ca1.App.4th 99
13
Schwartz v. City of Rosemead
(1984) 155 Cal.App.3d 547
2
Sierra Club v. State Board of Forestry
(1994) 7 Cal.4th 1215 12
STATE STATUTES
California Code of Regulations, tit. 14 (CEQA Guidelines)
§ 15002, subd. (a)(3) 12
§ 15003(i) ............................................18
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TABLE OF AUTHORITIES (Cont'd)
Page
California Code of Regulations, tit. 14 (CEQA Guidelines) (Cont'd)
§ 1502 1, subd. (a) ......................................12
§ 15088(c) ............................................28
§ 1509 1, subd. (a) ......................................12
§ 15125 ...............................................7
California Code of Regulations, tit. 22 (CEQA Guidelines)
§ 12000 ...............................................9
California Constitution, art. V, § 13 2
Code Civil Procedure
§ 388 .................................................2
Government Code
§ 12600, etseq ..........................................2
§ 12600-612 ...........................................2
Health and Safety Code
§ 21000, etseq ..........................................4
Public Resources Code
§ 21001(d)
.......................11
§ 21002
....................12,21
§ 21002.1(a)
.......................12
§ 21002.1(b)
.......................21
§ 21005(a)
.......................11
§ 21006
.......................12
§ 21061
.......................12
§ 21081
passim
§ 21081.5
.................12,21,22
§ 21167.6
........................2
§ 21167.7
........................1
§ 21168
.......................11
§ 21168.5
.......................11
§ 21177(d)
.......................2,3
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TABLE OF AUTHORITIES (Cont'd)
Page
COURT RULES
California Rule of Court 13, subdivision (b)(b) 1
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AMICUS CURIAE STATE OF CALIFORNIA
EX REL. ATTORNEY GENERAL BILL LOCKYER
INTEREST OF AMICUS CURIAE
California Attorney General Bill Lockyer submits the attached brief
as amicus curiae, pursuant to California Rule of Court 13, subdivision
(b)(6), which allows the Attorney General to file such a brief without leave
of the Presiding Justice. The Rule requires the Attorney General to explain
his interest in the case and why he thinks his brief will be of assistance to the
Court, and requires him to identify the party that the amicus curiae brief
supports. This brief is filed in support of Appellants.
The Attorney General's interest in the California Environmental
Quality Act (CEQA) stems both from his general responsibilities as the
State's chief law officer to see that the laws are appropriately enforced, and
from the special responsibilities for the enforcement of CEQA assigned by
the Legislature to the Attorney General. CEQA requires that any party filing
an action pursuant to CEQA must serve a copy of the complaint or petition
commencing that action upon the Attorney General, so that the Attorney
General may evaluate the case and take appropriate action. (Pub. Res. Code
§ 21167.7.) This section gives the Attorney General a special role in
ensuring CEQA compliance by "permit[ting] the Attorney General to lend its
power, prestige, and resources to secure compliance with CEQA and other
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environmental laws...." (Schwartz v. City of Rosemead (1984) 155
Ca1.App.3d 547, 561; Pub. Res. Code § 21167.6; Code Civ. Proc. § 388.)
The statute contemplates that the Attorney General may participate in
any CEQA case, as shown by Public Resources Code § 21177(d), which
excuses the Attorney General, and only the Attorney General, from the legal
requirement to have exhausted administrative remedies before bringing or
entering a CEQA case. This shows both that the Legislature intended the
Attorney General to actively participate in CEQA cases, and that the
Legislature felt that the courts would benefit from such participation.
The Attorney General is also specially charged by the Government
Code with protection of the California environment and its natural resources.
(Gov. Code § 12600, et seq.) He is authorized to participate in any judicial
proceeding that may impair or destroy the natural environment or resources
of this State. (Cal. Const., art. V, § 13; Gov. Code § 12600-612; D'Amico v.
Board of Medical Examiners (1974) 11 Cal.3d 1, 14-15.) The possibility of
harm to the natural environment and the scope of such possible harm are
issues in this case, and the Attorney General seeks to participate as amicus
curiae to fulfill his responsibilities to protect the natural resources of the
State.
The Attorney General is familiar with the administrative record in this
case, including the environmental impact report whose adequacy is the
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central issue herein, and has reviewed the appellate briefs filed in this Court
by all parties. Because of his expertise in the enforcement of CEQA, the
Attorney General believes that he can present legal arguments and analysis
of the facts and the record in this case that may be of assistance to this Court.
The brief will focus on an issue not directly or adequately discussed by the
parties: the failure of the City of Rosemead to require all feasible mitigation
measures for operational air pollutant emissions from the project at issue.
While the mitigation issue is inherent in the consideration of
alternative project designs, it has not been directly briefed by the parties.
This court, however, may take note of the issue, since it was briefed below
by the parties, and is directly relevant to the issue of adequate compliance
with CEQA by the City. While amici to a case generally take the case and
the issues as they find them (Lance Camper Manufacturing Crop. v.
Republic Indemnity (2000) 90 Cal.App.4th 1151, 1161 nt. 6), this Court may
examine an issue raised by an amicus that was not briefed by the parties.
(Fisher v. City of Berkeley (1984) 37 Ca1.3d 644, 654.) This is particularly
true here, where the Legislature granted special status to the Attorney
General in the enforcement of CEQA, including permission to raise issues in
litigation without having previously exhausted them. (Section 21177(d).)
The Attorney General believes the issue of mitigation of air pollution that
has regional effects to be of sufficient importance to raise it before this Court
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despite the failure by the parties to focus on it, and he respectfully asks the
Court to consider the issue.
INTRODUCTION
This case is about more than a single Wal-Mart seeking to build a
Supercenter in an urban area that already has dangerously poor air quality. It
is about the responsibility given to local governments by California
Environmental Quality Act' to approve projects that can and will affect the
environment that everyone shares, including the air that everyone must
breathe, but only if the local government approving the project examines all
feasible alternatives, and adopts and enforces all feasible mitigation
measures. Here, the environmental impact report (EIR) for the project
frankly states that the project is inconsistent with the regional clean air plan
and can "interfere with the region's ability to comply with federal and state
ambient air standards." (AR 01414.) However, the EIR neither adopts all air
pollution mitigation recommended by the South Coast Air Quality
Management District (SCAQMD), nor finds the proposed mitigation
infeasible. Instead, while adopting some mitigation measures (whose
effectiveness it does not assess), the EIR throws up its hands at the enormity
of the air pollution problem and neither fully discloses exactly what the
inconsistency between the project and the regional air quality plan is, nor
1. Health and Safety Code section 21000, et seq. all further statutory
references are to the Health and Safety Code unless otherwise indicated.
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adopts all feasible mitigation measures or finds them infeasible. In its
response to public comments, the EIR consistently denigrates the importance
of the health dangers of air pollution, and substitutes reliance on adoption of
a statement of overriding considerations for adoption of all feasible
mitigation for air pollution effects from the project.
Courts have long held that public agencies cannot use the magnitude
of an overwhelming environmental problem as an excuse for failing to fully
disclose, and to mitigate insofar as feasible, an individual project's
contribution to that problem. The EIR for this project fails as an informative
document in that it does not actually disclose the air quality effects of the
project, and the resulting public health effects. It also fails as a substantive
document in that it neither adopts all mitigation measures suggested by the
SCAQMD, nor finds these measures infeasible. The finding it does make -
that all feasible mitigation has been adopted - lacks substantial evidence, in
that several measures that could directly reduce emissions in the area were
not adopted and were not found infeasible; indeed, they are only listed and
never discussed or analyzed at all.
Air quality in the South Coast Air Basin is damaging the health of
many thousands of people, particularly the health of children and those who
are already ill. The air quality in this, the most polluted air basin in the
nation, is already causing lung damage, asthma and even cancer. (See
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Health Effects of Air Pollution table at AR 00441.) The SCAQMD has a
plan for controlling air pollution, the AQMP. But, as the EIR itself says, "no
air quality plan can succeed without the active participation of local
government." (AR 00448.) That is one of the functions of the EIR, and in
this critical air basin, it may be the EIR's most important function. No
project should be approved unless its consistency with the AQMP is fully set
out, its air quality effects are fully disclosed, and all feasible air quality
mitigation measures adopted.
CEQA gives local agencies the power to approve projects that will
damage the environment (Section 21081), including, for purposes relevant in
this case, not only local air quality but regional air quality. However, before
a city like Rosemead can exercise that power, CEQA demands that the city
set out fully and comprehensibly just what it is doing, and that it also analyze
and adopt every feasible mitigation measure. The CEQA process is virtually
the only method through which the region has a voice in the process of
approving a project that will harm the region. For this reason, among others,
CEQA's twin duties of full disclosure and full mitigation are and must be
- strictly enforced. (Kings County Farm Bureau v. City of Hanford (1990)
221 Cal.App.3d 692, 720-21.) Here, the City of Rosemead has not complied
with those twin CEQA duties, and amicus asks this Court to remand this EIR
to the City with the mandate that it comply.
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The Attorney General here asks that this Court hold the City of
Rosemead accountable for the contribution of this project to the lasting
public health damage being done by air pollution in the South Coast Basin,
by remanding this matter to the City with instructions that the EIR must
examine, and the project must include, all feasible mitigation for the
project's contribution to regional air pollution.
STATEMENT OF THE CASE
The importance of full and meaningful CEQA compliance in this case
can only be understood in the regional context of the project. (Friends of the
Eel River v. Sonoma County Water Agency (2003) 108 Ca1.App.4th 859,
874 ("knowledge of the regional setting is critical to the assessment of
environmental impacts"; Guidelines section 15125.) Put simply, the air in
the South Coast Basin (the greater Los Angeles area) is not safe to breathe.
The South Coast Basin is the only area in the entire nation rated as "severe"
in its failure to meet the federal air quality standard for ozone.v It also has
the most serious rating for failure to meet the federal standard for particulate
matter of ten microns or less, and fails to meet the federal standard for fine
particulate matter of 2.5 microns or less. (Id.) These standards define air that
is not ideal or pristine, but merely air that is safe for everyone, including
children, the old, and the ill, to breathe every day. (AR 01378.) Exposure to
2. http://www.epa.gov/air/oaqps/greenbk/gnc.html
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levels of air pollution regularly found in the South Coast Basin causes the
lungs to take in less air, exacerbates - and may contribute to causing -
asthma in children, sends people to the hospital and keeps them away from
work and school. Failure by the region to meet federal clean air standards by
the statutory deadline can trigger what the EIR itself calls "harsh federal
sanctions" in the form of cut-off of federal highway funds and expensive and
difficult requirements that any new businesses must reduce existing pollution
before locating in the area. (AR 01363, 42 U.S.C. section 7509(b).)
The SCAQMD has devised a clean air plan for the region, the Air
Quality Management Plan, or AQMP. The plan is based on assumptions and
projections, including those about how much growth in population and
driving will occur, and how much growth in driving and vehicle emissions
can be controlled and reduced. (AR 01395-97.) Air pollution is a regional,
as well as a localized, problem, and contributions to it in one place affect the
air, and the public health throughout the basin, and particularly in the areas
downwind of the emissions. (AR 01382.) As the EIR itself says, "no air
quality management plan can succeed without the active participation of
local government." (AR 00447.) In this case, the local government has
approved a project that will undercut the regional air quality management
plan, and has neither fully disclosed the details of that harm, nor taken all
feasible mitigation measures to avoid or lessen it.
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The project at issue here is a Wal-Mart Supercenter approved by the
City of Rosemead for construction next to a residential area, across the street
from an elementary school, and close to the crowded, crawling Route 60
freeway. (AR 01012, 01003.) The EIR estimates that the project will draw
about 1200 average daily vehicle trips, and 78 trips per week by diesel-
powered, heavy-duty trucksY (AR 03412, 03415.)
The EIR for the project states flatly that the project is inconsistent
with the AQMP, will directly or indirectly increase population growth above
what the AQMP assumes, and "therefore could interfere with the region's
ability to comply with federal and state ambient air quality standards." (AR
01414.) Listing the already serious violations of health-based federal air
quality standards, and their more stringent California counterparts, in the
basin, the EIR acknowledges that the existing violations will be made worse
by this project. (AR 01382-83, 01414.) The EIR adopts several mitigation
measures for the time-limited air pollutant emissions from construction of
the project. (AR 01415-01419.) It also adopts a limited number of
mitigation measures for the operational air pollution effects of the project
(AR 03157); the EIR includes as a "mitigation measure" a requirement that
3. Although the amount of diesel engine exhaust emitted by these trucks
apparently will not be in the range that requires a full scale risk analysis (AR
03224-25), we note that diesel engine exhaust is a substance known to the State
of California to cause cancer. (Cal. Code of Regs., tit. 22, section 12000.)
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the project comply with all legally applicable laws, policies and regulations.
(AR 03158.)
The EIR, however fails to adopt, or even discuss, several significant
mitigation measures suggested to it by the SCAQMD, without finding them
to be infeasible or finding that the air pollution harms expected from the
project have been mitigated to the level of insignificance. Rather, the EIR
merely states that "it is not possible to mitigate [regional effects and
inconsistency with the AQMP] to a level of insignificance." (AR 01414.)
The City adopted a Statement of Overriding Considerations that declared the
air pollution effects of the project to be outweighed by the economic benefits
the Supercenter would bring to Rosemead. (AR 00060-103.)
In petitioners' challenge below to the adequacy of the EIR, the trial
court found the EIR to be deficient in its consideration of alternative
(particularly alternative sites), and remanded the matter to the City for
redrafting and recirculation of the alternatives portion of the EIR.
(Appellants' App. 37:477.) The trial court did not enjoin construction of the
project. When the City made its return to the writ with the recirculated
portion of the EIR, petitioners below objected to the sufficiency of the return
to the writ, but the trial court found the return adequate. Petitioners timely
appealed.
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STANDARD OF REVIEW
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In enacting CEQA, the Legislature declared that the long-term
protection of the environment should be the guiding principle in public
decisions. (Pub. Resources Code, § 21001(d).) The California Supreme
Court has, from the first, interpreted that legislative mandate broadly,
holding that "the Legislature intended [CEQA] to be interpreted in such
manner as to afford the fullest possible protection to the environment within
the reasonable scope of the statutory language." (Friends of Mammoth v.
Board of Supervisors (1972) 9 Cal.3d 247,259; Bozung v. Local Agency
(1975) 13 Cal.3d 247, 259
A public agency violates CEQA when it commits a prejudicial abuse
of discretion. Such abuse of discretion shall be found either when the
agency has not proceeded in a manner required by law or if the agency's
determination or decision is not supported by substantial evidence. (Pub.
Res. Code sections 21168 and 21168.5.) It is important to note that
"noncompliance with substantive requirements of [CEQA] may constitute a
prejudicial abuse of discretion within the meaning of Sections 21168 and
2l 168.5, regardless of whether a different outcome would have resulted if
the public agency had complied with those provisions." (Pub. Res. Code §
21005(a).)
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CEQA is both a procedural and a substantive statute, "compet[ing]
government first to identify the environmental effects of projects, and then to
mitigate those adverse effects through the imposition of feasible mitigation
measures or through the selection of feasible alternatives." (Sierra Club v.
State Board of Forestry (1994) 7 CalAth 1215, 1244.)
CEQA's procedural component requires that a full opportunity for
public participation be available in the decision malting process, including
the requirement that the agency make full disclosure of all environmental
harm expected from the project. (Section 21002.1(a), 21006, 21061;
Guidelines section 15121(a); County of Inyo v. City of Los Angeles (1977)
71 Cal.App.3d 185, 192.) CEQA's substantive component requires that
public agencies not approve projects that will harm the environment, unless
all feasible mitigation measures have been adopted. (Public Res. Code
sections 21002, 21081; Guidelines section 15002, subd. (a)(3), 15021, subd.
(a), 15091, subd. (a); Citizens of Goleta Valley v. Board of Supervisors
(1990) 52 Ca1.3d 553, 565; Mountain Lion Foundation v. Fish & Game
Com. (1997) 16 CalAth 105, 134.) The finding by the agency that all
feasible mitigation measures have been adopted must be supported by
substantial evidence in the record. (Public Res. Code section 21081.5.)
An EIR comes to this Court with a presumption of adequacy, and the
agency's factual findings will be presumed correct if they are supported by
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substantial evidence. (Laurel Heights Imp. Assn v. Regents of the
University of California (1988) 47 Cal.3d 392, 393 (Laurel Heights 1))
However, matters of interpretation or application of the statute are questions
of law, and this Court reviews them de novo for prejudicial abuse of
discretion in complying with either CEQA's procedural or substantive
mandates. (Save Our Peninsula Committee v. Monterey County Bd of
Supervisors (2001) 87 Ca1.App.4th 99, 118.) A factual finding by the
agency may be reversed by this Court if the agency has not proceeded in the
manner CEQA requires in making that finding. (Los Angeles Unified School
Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1023.) In
reviewing whether the agency has proceeded as required by law, the
reviewing court stands in the shoes of the trial court, and reviews
compliance with CEQA's procedural and substantive mandates de novo.
(Gentry v. Murietta (1995) 36 Cal.App.4th 1359,1375-76.)
ARGUMENT
1. THE EIR FAILS TO FULLY INFORM THE PUBLIC
OF THE AIR QUALITY EFFECTS OF THE PROJECT,
INCLUDING REGIONAL EFFECTS.
The EIR is first and foremost an informative document. No
determination as to whether a project should be approved despite its
environmental effects can be made until and unless those environmental
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harms are fully and accurately set out. The EIR fails to do so, violating the
procedural mandate of CEQA.
A. The EIR Fails to Inform the Public of the
Conflict Between the AQMP and the Air
Quality Effects of the Project.
The EIR states that the air quality effects of the project, even after
mitigation, are "significant and unavoidable." (AR00475.) Yet, despite the
admitted seriousness of this effect, the EIR gives surprisingly little
information to either the decision-maker or the public about these air quality
effects. And what it gives in one section, it often takes back in another. It
fails completely to carry out the duty, set out in Bakersfield Citizens for
Local Control v. City of Bakersfield (2004) 124 Cal.AppAth 1184, 1220, to
correlate the adverse air quality effects of this project to the resulting adverse
health effects that residents of Rosemead, or of the South Coast Air Basin,
may experience from the project. Given the extremely serious air pollution
problem in the South Coast Air Basin, no project that will adversely affect
air quality, or that will hinder the regional AQMP, should be allowed to
avoid full disclosure of the air pollution and public health effects the project
will cause.
The EIR states flatly that the project is inconsistent with the AQMP
and "could interfere with the region's ability to comply with federal and state
ambient air quality standards." (AR 01414.) If one looks closer, however,
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the EIR fails to explain how and why the project violates the AQMP. In the
Air Quality and Noise Impact Study in Appendix D, the EIR says that any
project that requires an amendment to Rosemead's General Plan that would
directly or indirectly allow greater population growth than is assumed in the
AQMP is inconsistent with the AQMP, and that the inconsistency is
significant and immitigable. (AR 01414. See also, AR 00454, 00455,
00542, 00534.)
Yet, the EIR in the Growth Inducement section says that it is unlikely
that this project will directly cause population increases. (AR 00543.)
Further, the Land Use section of the EIR says that the effect of this project
on current and expected land uses in the area is "Less-Than-Significant" and
requires no mitigation (AR 00339), and Appendix D says that the expected
jobs from the project are within the range of jobs assumed in the General
Plan to be generated by this particular property. (AR 01413. (Range of
expected jobs from office use of this site, as assumed in General Plan, is
750-1120, less than the 509 expected from the project. ( Id.)) The reader
therefore, cannot ascertain the project's inconsistency with the AQMP, how
serious it is - indeed, whether it exists at all - and what the real-world air
quality consequences of the inconsistency are.
In other places, the EIR says that the project's inconsistency with the
AQMP is that the expected emissions from operation of the project exceed
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the threshold levels of emissions designated as "significant" emissions
increases by the SCAQMD. (AR 00475, 00558-59.) However, the FOR
also states that the thresholds are just indicators that analysis is required, not
a per se indication of significant emissions increases. (AR 03281, 03441.)
The FEIR also states that exceeding the SCAQMD significance thresholds
"does not indicate that the State or Federal ambient air quality standards
(AAQS) adopted to protect public health will not be met"(AR 03281,
03441.) Again, the reader cannot determine from the EIR just why the
project is inconsistent with the AQMP.
Rather than being the document of public accountability and full
disclosure that CEQA demands (Laurel Heights I, supra, 47 Cal.3d at 392),
this EIR takes away information and explanations with one hand that it has
given with the other. A reader cannot clearly understand the regional effects
of the project on air quality, and without such an understanding, the public
cannot "know the basis on which its responsible officials either approve or
reject environmentally significant action, and can respond accordingly to
action with which it disagrees." (Laurel Heights Imp. Ass'n v. Regents of the
University of California (1988) 47 Cal.3d 376,392 (Laurel Heights]).) The
conclusory statements in the EIR that the air quality effects are significant
cannot substitute for a comprehensible explanation of why and how they are
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significant. The EIR has failed CEQA's mandate for full environmental
disclosure.
B. Neither the Air Quality nor the Public Health
Effects of the Pollutant Emissions the Project Will
Cause Have Been Adequately Disclosed.
Moving from the more conceptual level of consistency of the project
with the AQMP to the more detailed level of actual project-related air
pollutant emissions, the EIR also fails as an informative document, in both
the areas of project construction and of project operation.
The EIR here presents a series of facts: pre-mitigation project
emissions levels, a conflict with the AQMP whose nature the EIR does not
consistently or clearly explain, mitigation measures whose effectiveness
(except for dust control) the EIR does not evaluate, and a list of the harmful
effects on health of the kinds of air pollution that the project will make
worse, without explaining when, where, how or how much worse the project
will make them. The EIR also omits a series of facts: the effectiveness of
mitigation measures in reducing emissions and health effects from the
project, the amount of various air pollutants the project is expected to emit
after mitigation, and the effect of those pollutant emissions on local and
regional air quality, on the AQMP, and on public health. The facts that are
omitted might allow the public to make sense of the facts that are presented,
and might allow the EIR to serve its function as a document not only of
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environmental full disclosure, but of public accountability and informed self-
government. (Laurel Heights I, supra, 47 Cal.3d at 392.) Courts do not
look for technical perfection in an EIR, but they do require a good-faith
effort by the public agency to make full environmental disclosure, to find out
all it reasonably can, and to tell all it reasonably knows. (Guidelines, section
15003(1).) Amicus suggests that the omissions of fact in this EIR do not
represent such a good-faith effort at full disclosure, and respectfully requests
that it be remanded to the City for full compliance with CEQA.
1. Amounts and Effects of Construction Impacts
Are Not Adequately Disclosed.
The EIR does set out the emissions that can be expected from
construction of the Supercenter before mitigation, and lists the mitigation
measures that the SCAQMD recommends to reduce and mitigate those
emissions. (AR 00460-465, 01404-06.) It also does estimate and disclose
the reductions of large particulate matter (dust) emissions that would result
from application of the mitigation measures it recommends adopting. (AR
00463-64.)
Noticeably lacking, however, is even the attempt to provide similar
information on mitigation or emissions reductions of nitrogen oxides (NOx)
and reactive organic gases (ROG) - the chemicals that combine in sunlight
to form ozone (smog) from project construction. Lists of mitigation
measures are provided, but the EIR makes no attempt to calculate, or even
18
0
estimate, the degree to which they will actually reduce emissions of smog-
forming chemicals. The preparers of the EIR apparently have some idea of
the amounts of construction-related emissions of NOx and ROG after
mitigation, since the EIR states that "[d]uring building construction activities
on-site, the SCAQMD quarterly thresholds of significance for ROG and
NOx emissions are projected to be exceeded." (AR 00464.) Yet, the EIR
does not share this information with the public, saying only that mitigation to
levels of insignificance is "unlikely," and "this impact is considered
Significant and Unavoidable." (AR 00465.)
Simply characterizing emissions impacts as "significant" without
attempting to quantify them - even to estimate them - does not give either
the decision-maker or the public sufficient information to understand or
evaluate the environmental effects of the project, or to balance those
environmental harms against the project's benefits. Nor does it, as
Bakersfield Citizens for Local Control, supra, 124 Cal.AppAth at 1220,
requires, correlate the environmental effects with the public health harms
that those effects will cause. This is simply not enough information to
satisfy CEQA's full environmental disclosure requirements.
Amounts and Effects of Qperational Effects Are
Not Adequately Disclosed.
The EIR provides even less information on the operational air
pollution effects of the project after mitigation. The pre-mitigation air
19
pollution emissions expected from the project are set out. (AR 00467,
00472.) A very short list of mitigation measures is presented (AR 00474), a
list that was augmented in the FEIR. (AR 03156-58.) However, no estimate
is given to the public of the effectiveness of any operational mitigation
measure, and no table or list of operational emissions after mitigation is
presented. Again, some information must have been available to the EIR
preparers, since the EIR does state:
The project-related operational emissions projections for
carbon monoxide, reactive organic gases, and oxides of
nitrogen are projected to exceed the SCAQMD operational
emissions significance thresholds. Consequently, long-term
adverse operational impacts on air quality will be significant.
Even after the application fo [sic] all feasible mitigation
measures, these impacts will remain Significant and
Unavoidable. (AR 00475, italics and capital letters in
original.)
Nowhere does the EIR set out what the post-mitigation levels of ROG or
NOx emissions will be, except to say that they exceed SCAQMD thresholds.
Nowhere does the EIR explain what the air quality consequences of these
emissions will be. And nowhere does the EIR make the correlation between
the project's emissions and any harm to the AQMP, or any harm to public
health consequences. Again, simply characterizing an effect as "significant"
does not give enough information to allow the public to understand what
degree of harm the project does or does not do.
The EIR has failed as an informational document.
20
0
II. THE EIR FAILS EITHER TO ADOPT ALL FEASIBLE
MITIGATION MEASURES OR TO FIND SUGGESTED
MITIGATION MEASURES INFEASIBLE.
The substantive command of CEQA is simple: agencies should not
environmentally harmful project unless they have adopted all feasible
mitigation measures and, if environmental harm remains, they must find that
other kinds of benefits from the project outweigh the environmental harm
that the project will do. (Sections 21002, 21002.1(b), 21081; Mountain Lion
Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 134 (describing
"CEQA's substantive mandate that public agencies refrain from approving
projects for which there are feasible alternatives or mitigation measures."))
The duty to adopt all feasible mitigation is a mandatory duty for any agency
carrying out or approving a project that may harm the environment. As
Napa Citizens for Honest Government v. Napa County Board of Supervisors
(2001) 91 Cal.App.4th 342, 360 (emphasis added), holds, "[o]nce a
significant effect [on the environment] has been identified, the EIR must
propose and describe mitigation measures that will minimize the significant
environmental effects that the EIR has identified.") Further, any findings
that a mitigation measure is infeasible must be supported by substantial
evidence in the record. (Section 21081.5.) This District has held that "an
adequate EIR must respond to specific suggestions for mitigating a
significant environmental impact unless the suggested mitigation is facially
21
• •
infeasible. While the response need not be exhaustive, it should evince good
faith and a reasoned analysis." (Los Angeles Unified School Dist. v. City of
Los Angeles (1997) 58 Cal.AppAth 1019, 1029.) The City here has not
obeyed this statutory mandate.
As discussed above, the EIR states repeatedly that the project will
have air quality effects, both in the short term and in the long term, that are
significant. (AR 00465, 0047501414.) The City was therefore obligated to
adopt all feasible mitigation measures that would lessen or avoid these
significant effects, unless it made factually supported findings that the
mitigation was infeasible. (Sections 21081, 21081.5.) However, the record
shows that several mitigation measures were presented to the City by the
SCAQMD that the City neither adopted nor made any attempt to find
infeasible. For this reason, the EIR is inadequate, and the approval of the
project was not made in accordance with CEQA's procedures and
requirements.
The SCAQMD provided potential mitigation measures to the EIR
preparers in 1991 for use in drafting the EIR, providing mitigation measures
that would reduce both construction and operational air quality impacts of
the project. (AR 01418.) The SCAQMD also submitted comments on the
draft EIR that listed mitigation measures that would reduce the construction
and operational air pollution effects of the project. (AR 03220-22.) To its
22
credit, the EIR adopts most of these measures for project construction (AR
03157), and a couple of these measures for project operation. (AR 03157.)
However, the SCAQMD also proposed measures to mitigate the operational
air pollution effects of the project that were neither adopted nor found
infeasible. These measures related to the equipment that would construct the
facility and the trucks that would serve the facility, and suggested that the
project be conditioned to require that this equipment and these vehicles be
clean, that they use clean fuels that would minimize emissions. Specifically,
the SCAQMD told the City that it should require construction equipment to
"use low-sulfur fuel for equipment" (AR 01418), and should "[r]estrict
operation to `clean' trucks," and "[r]equire or provide incentives for
haul/delivery trucks to use low-sulfur diesel fuel with particulate traps." (AR
03221-22.)
These mitigation measures would reduce the emissions that the EIR
finds to be significant and unavoidable; using them would make at least
some portion of those emission fully avoidable. Therefore, CEQA requires
that the EIR either adopt them or find them infeasible. It did neither. It did
not analyze or discuss these measures in any way, except to say that "the
proposed mitigation measures deemed applicable and feasible are hereby
incorporated into the proposed project." (AR 03225.) This is a wholly
inadequate response under Los Angeles Unified School District, since the
23
i i
measures are not found by the EIR to be facially infeasible, and the response
shows no "reasoned analysis" explaining why the use of clean trucks or the
providing of incentives for trucks serving the Supercenter to use clean fuels
is not feasible. (1d., 58 Cal.AppAth at 1029.) Indeed, the EIR presents no
analysis whatsoever as to why these mitigation measures were not adopted.
Instead of either adopting the suggested mitigation or presenting a
reasoned analysis as to why it would be infeasible, the EIR simply states that
the air quality impacts of the project, including the cumulative impacts, will
be "Significant and Unavoidable," (AR 00475) a statement that is not
supported by substantial evidence in the record, because of the lack of
analysis or particularized findings of infeasibility. This is the sort of jump
over the CEQA process that this court condemned in Los Angeles Unified
School District, supra, 58 Cal.App.4th at 1030-31, note 11. As that case
notes, even though a Statement of Overriding Considerations was adopted
for the project (AR 00060-103), this does not substitute for adoption of all
feasible mitigation. (See, also, Federation of Hillside and Canyon
Associations v. City of Los Angeles (2004) 126 Ca1.App.4th 1180, 1201 ("A
statement of overriding considerations is not a substitute for the findings
[that all feasible mitigation has been adopted] required by Public Resources
24
•
•
Code section 21081, subdivision (a).") The EIR has failed CEQA's
substantive mandate.
Here, the EIR neither fully mitigates the significant air quality effects
of this project nor finds mitigation measures suggested by the air pollution
control agency of jurisdiction to be infeasible, based on substantial evidence
in the record. The EIR is therefore not adequate and in violation of CEQA's
substantive mandate.
III. RESPONSES TO COMMENTS IN THE EIR DO NOT
COMPLY WITH CEQA IN THAT THEY ARE
CONCLUSORY AND DO NOT ACCURATELY
REFLECT THE SEVERITY OF THE AIR POLLUTION
EFFECTS OF THE PROJECT.
Because the EIR is a document of public accountability, as well as of
environmental protection, Laurel Heights I, supra, 47 Cal.3d at 392, the
responses that the public agency makes to comments by the public on the
EIR are held to a high standard of responsiveness. The responses cannot be
conclusory or self-serving, but must be well-reasoned and well-supported,
"evinc[ing] good faith and a reasoned analysis." (Los Angeles Unified
School District, supra 58 Cal.AppAth at 1029.) Here, the EIR's responses
to public comments about the project's effects on air quality do not evince
good faith and a reasoned analysis, and they deliberately downplay the
seriousness of the region's air pollution problems and the damage to public
25
•
•
health that air pollution of the magnitude experienced in the South Coast Air
Basin can do.
Many members of the public commented on the project's contribution
to the region's and the area's already severe air pollution problem, and
pointed out that children at nearby schools would be exposed to more air
pollution if the project were built. The EIR consistently denigrates the
danger from air pollution, repeating answers that imply that the public
should not be concerned about it, and that are contradicted by other parts of
the EIR and by the applicable laws.
Several comments expressing concern about the air pollution effects
of the project were given the response that, while air pollution standards
are designed to protect public health and that segment of
the population that is most sensitive and susceptible to
respiratory distress or infection such as: asthmatics, the very
young, the elderly, people weak with illness or disease, or
persons engaged in heavy work or exercise (i.e. sensitive
receptors). Healthy adults can tolerate periodic exposures to
air pollutant levels well above these standards before adverse
health effects are observed." (AR 03287, 03314-15, 03441-
42, emphasis added.)
Stating that healthy adults can tolerate air pollution downplays the dangers of
air pollution both to those healthy adults and to the sensitive population.
(See Health Effects of Air Pollution table at AR 00441.) Certainly, it is an
inappropriate response regarding this project, whose emissions will reach so
many of the sensitive receptors listed by the EIR: the elementary school
26
•
across the street (AR 01391, 01408), the Don Bosco school close by (which
plans to expand its athletic field, and thereby create a situation where young
and immature lungs will be exposed during exercise (AR 03422)), the
residential neighborhoods adjacent to the project (AR 00440, 01391, 01408),
and the addition of new sensitive receptors in the form of a new senior
housing project nearby (AR 03290). In fact, elsewhere the EIR states that up
to 50% of the population in California is comprised of sensitive receptors.
(AR 00439.)
Equally inappropriate, and contradictory to other portions of the EIR,
is the response made to several persons and organizations who made
comments or raised questions about the project's emissions causing
exceedances of the federal or state air quality standards, or of the threshold
levels set by the SCAQMD indicating that a project's emissions are
significant. The EIR responds that exceeding the SCAQMD significance
thresholds "does not indicate that the State or Federal ambient air quality
standards (AAQS) adopted to protect public health will not be met"(AR
03281, 03441). This contradicts other portions of the EIR, which describe
the already existing violations of these same standards (AR 01386-90), and
acknowledge that project emissions will add to these already serious air
pollution levels (AR 01412, 01414). The response again inappropriately
downplays the significance of these contributions to already critical levels of
27
ai r pollution. Also inaccurate, if not outright misleading, are the responses
characterizing the federal ambient air quality standards as merely "objectives
for acceptable concentrations of specified pollutants in outdoor air" (AR
03287, 03441), rather than the federally enforceable mandates that the EIR
elsewhere admits that they are, carrying heavy potential penalties for
violations. (AR 00443-44, 00457.)
These are not the reasoned responses, supported by facts and analysis,
that CEQA requires. (San Francisco Ecology Center v. City and County of
San Francisco (1975) 48 Cal.App.3d 584, 596; Guidelines, section
15088(c).)
A. A Statement of Overriding Considerations
Does Not Remove the Duty to Adopt All
Feasible Mitigation Measures.
Perhaps the most distrubing response to comments is one that deals
with questions and concerns about the air pollution effects of the project by
saying that, despite the level of air pollutant emissions the project will cause,
CEQA authorizes approval of the project if the City of Rosemead adopts a
Statement of Overriding Considerations "that acknowledges the exceedances
and makes findings that essentially declare that certain benefits of the project
outweigh the environmental impacts for the project." (AR 03286. See also,
AR 03412, 03441-42, 03496.) As discussed above, this District in Los
Angeles Unified School District held that overriding considerations may not
28
0 0
be used to evade or skip over the full procedures mandated by CEQA. (Los
Angeles Unified School District, supra, 58 Ca1.App.4th at 1030, nt 11.) That
case held that, regardless of whether overriding considerations for the project
exist, the "agency must find mitigation measures are infeasible and the
benefits of the project outweigh the unmitigated effects on the environment."
(Id., emphasis in original.) That same requirement should apply here.
The EIR has made responses to comments that are not reasoned and
good-faith replies, but instead seem to be an argument that the project's
effects on air quality are not important.
CONCLUSION
The California Supreme Court has held that "[tjhe purpose of CEQA is not
to generate paper, but to compel governments at all levels to make decisions with
environmental consequences in mind," even if those decisions do not ultimately
favor environmental values. Citizens of Goleta Valley v. Board of Supervisors
(1990) 52 Cal.3d 553, 564.) In the EIR here, the mitigation, cumulative effects and
regional air pollution effects discussions seem to do little except generate paper.
they cast little or no light on the problems, they do not provide adequate
information as to what the problems are, and they do not offer adequate mitigation
for this project's contribution to the problems. While the South Coast Air Basin's
air pollution problems are huge, an agency may not simply throw up its hands, nor
trivialize the situation, when confronted with such a problem; it must provide the
full information and the full feasible mitigation to deal with the problem that CEQA
29
• 0
requires. (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d
692, 718-720.) To repeat the words of the EIR itself, "no air quality management
plan can succeed without the active participation of local government." (AR
00447.)
For all the reasons given above, the EIR is inadequate, and should be
invalidated and returned to the City with directions to prepare and certify an
adequate ED?, and to adopt all feasible mitigation measures for the air quality
effects of this project.
Dated: July 20, 2006
Respectfully submitted,
BILL LOCKYER
Attorney General of the State of Califomia
TOM GREENS
Chief Assistant Attorney General
THEODORA P. BERGER
Senior Assistant Attorney General
rwl
SUSAN• . DUBBIN
Deputy Attorney General
Attorneys for amicus curiae
State of California,
ex rel. Attorney General
Bill Lockyer
30
•
CERTIFICATE OF COMPLIANCE
Pursuant to Rule 14(c)(1) of the California Rules of Court, the undersign
hereby certifies that the text of this brief consists of 6,774 words, based on the
word count of the WordPerfect 8 word-processing program used to generate
this brief.
DATE: July 20, 2006
SUSAN L. D IN
Deputy Attorney General
Attorney for the State of California
0 0
DECLARATION OF SERVICE BY U.S. MAIL
Case Name: SAVE OUR COMMUNITY v. CITY OR ROSEMEAD et al.
Court of Appeal, Second Appellate District - Division One, Case No. B186718
San Joaquin County Superior Court Case No. BS093012
I declare:
I am employed in the Office of the Attorney General, which is the office of a member of
the Bar of this Court at which member's direction this service is made. I am familiar
with the business practice at the Office of the Attorney General for collection and
processing of correspondence for mailing with the United States Postal Service. In
accordance with that practice, correspondence placed in the internal mail collection
system at the Office of the Attorney General is deposited with the United States Postal
Service that same day in the ordinary course of business.
On July 20, 2006, I served the attached:
AMICUS BRIEF OF THE STATE OF CALIFORNIA,
EX REL. ATTORNEY GENERAL BILL LOCKYER
IN SUPPORT OF APPELLANTS
in the internal mail collection system at the Office of the Attorney General, 1300 I Street,
P.O. Box 944255, Sacramento, California 94244-2550, for deposit in the United States
Postal Service that same day in the ordinary course of business, in a sealed envelope,
postage fully prepaid, addressed as follows:
Cory Jay Briggs
Briggs Law Corporation
99 East C Street, Suite 315
Upland, CA 91786
Attorney for Plaintiff and Appellant
Save Our Community
Lisa E. Krantz
Wallin, Kress, Reisman & Krantz
2800 28th Street, Suite 315
Santa Monica, CA 90405
Attorney for Defendant and Respondent
City of Rosemead
9
John Chadwick Nolan
Gresham Savage Nolan & Tilden
P.O. Box 1240
Riverside, CA 92502-1240
Honorable David P. Yaffe
Los Angeles County Superior Court
Central District
Stanley Mosk Courthouse
111 North Hill Street
Los Angles, CA 90012
California Supreme Court (5 copies)
350 McAllister Street
San Francisco, CA 94102
0
Attorney for Defendant and Respondent
Wal-Mart Real Estate Business Trust
I declare under penalty of perjury the foregoing is true and correct and that this declaration was
executed on July 20, 2006, at Sacramento, California.
BESSIE WONG~ -
Signature
0 0
0 0
2 Civil No. B 186718
IN THE COURT OF APPEAL
FOR THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
SAVE OUR COMMUNITY,
Appellant and Petitioner,
V.
CITY OF ROSEMEAD,
Respondent,
and
WAL-MART REAL ESTATE BUSINESS TRUST, et al.
Real Parties in Interest.
From Los Angeles Superior Court
Case No. BS 093012
Honorable David P. Yaffe
RESPONDENT'S ANSWER TO THE
ATTORNEY GENERAL'S AMICUS BRIEF
WALLIN, KRESS, REISMAN & KRANITZ, LLP
PETER L. WALLIN (SBN # 41772)
LISA E. KRANITZ (SBN # 120608)
280028 1H Street, Suite 315
Santa Monica, California
Telephone: (310) 450-9582
Facsimile: (310) 450-0506
Attorneys for Respondent
CITY OF ROSEMEAD
•
TABLE OF CONTENTS
TABLE OF AUTHORITIES iii
INTRODUCTION I
ARGUMENT ..........................................................5
I. AMICUS CURIAE MAY NOT RAISE NEW ISSUES ON APPEAL
EXCEPT IN LIMITED CIRCUMSTANCES 5
11. THE ISSUES RELATING TO AIR QUALITY SHOULD NOT BE
RAISED FOR THE FIRST TIME BEFORE
THIS COURT 6
A. The Air Quality Issue Was Never Briefed By
The Parties 6
B. The Amicus Brief Does Not Raise A Pure
Question Of Law 9
C. Policy Considerations Disfavor Raising A New
Issue On Appeal I 1
III. STANDARD OF REVIEW 14
IV. A BRIEF OVERVIEW OF THE AIR QUALITY
ANALYSIS 16
V. THE EIR CONTAINS SUBSTANTIAL EVIDENCE REGARDING
AIR QUALITY IMPACTS AND
PUBLIC HEALTH EFFECTS 19
A. The EIR Adequately Informs Of The Air Quality Effects . 19
1. The Administrative Record discloses
substantial evidence to support the
analysis of the air quality impacts 19
2. The issue of compliance with the AQMP
is nothing more than a red herring 21
i 0
B. The EIR Adequately Informs Of The Health
Effects That Can Result From Air Quality
Impacts 23
C. The Public Understood The Air and Health
Impacts 25
D. The Analysis Of The Air Quality Mitigation
Measures Is Sufficient 26
VI. THE CITY COMPLIED WITH CEQA WITH REGARD
TO MITIGATION MEASURES 29
A. Construction Mitigation Measures 30
B. Operational Mitigation Measures 32
VII. THE RESPONSES TO COMMENTS WERE
ADEQUATE 33
CONCLUSION 36
i
CASES
•
TABLE OF AUTHORITIES
A Local and Regional Monitor v. City of Los Angeles
(1993) 12 Cal.App.4th 1773, 16 Cal.Rptr.2d 358 12, 13
Bakersfield Citizens for Local Control v. City of Bakersfield
(2004) 124 Ca1.App.4th 1184,
22 Cal.Rptr.3d 203 1, 14, 15, 23, 24, 31
Banker's Hill, Hillcrest, Park West Community Preservation Group
v. City of San Diego
(2006) 139 Cal.App.4th 249, 42 Cal.Rptr.3d 537 10
Barthelemy v. Chino Basin Municipal Water District
(1995) 38 Cal.App.4th 1609, 45 Cal.Rptr.2d 688 14, 15, 16
Bonner v. City of Santa Ana
(1996) 45 Cal.App.4th 1465, 53 Cal.Rptr.2d 671 12
Central and West Basin Water Replenishment District v.
Southern California Water Company
(2003) 109 Cal.App.4th 891, 35 Cal.Rptr.2d 486 5
Chaparral Greens v. City of Chula Vista
(1996) 50 Cal.App.4th 1134, 58 Cal.Rptr.2d 152 15
Citizens of Goleta Valley v. Board of Supervisors
(1990) 52 Cal.3d 553, 41 Cal.Rptr.2d 157 37
City of Walnut Creek v. County of Contra Costa
(1980) 101 Cal.App.3d 1012, 162 Cal.Rptr. 224 9, 13
• 0
Coalition for Student Action v. City of Fullerton
(1984) 153 Cal.App.3d 1194, 200 Cal.Rptr. 855 9, 12
PAGE
Connerly v. State Personnel Board
(2006) 37 CalAth 1169, 39 Cal.Rptr.3d 788 5
Corona-Norco Unified School District v. City of Corona
(1993) 17 Cal.AppAth 985, 21 Cal.Rptr.2d 803 12
Crocker National Bank v. City and County of San Francisco
(1989) 49 Ca1.3d 881, 264 Cal.Rptr. 139 9, 10
Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga
(2000) 82 Cal.App.4th 473, 98 Cal.Rptr.2d 202 31
El Morro Community Association v. California Department of Parks
and Recreation (2004) 122 Cal.AppAth 1341, 19 Cal.Rptr.3d 445 8
Fisher v. City of Berkeley
(1984) 37 Ca1.3d 644, 209 Cal.Rptr. 682 6
Kings County Farm Bureau v. City of Hanford
(1990) 221 Cal.App.3d 692, 270 Cal.Rptr. 650 15
La Vie v. Proctor and Gamble Co.
(2005) 105 Cal.AppAth 496, 129 Cal.Rptr.2d 486 5
Lance Camper Manufacturing Corp. v. Republic Indemnity
(2000) 90 Ca1.AppAth 1151, 109 Cal.Rptr.2d 515 7
Laurel Heights Improvement Association of San Francisco, Inc.
v. Regents or the University of California
(1988) 47 Cal.3d 376, 253 Cal.Rptr. 426 27,28
Lincoln Place Tenants Assn. v. City of Los Angeles
(2005) 130 Cal.AppAth 1491, 31 Cal.Rptr.3d 353 10
Mira Mar Mobile Community v. City of Oceanside
i
•
(2004) 14 Cal.AppAth 477, 14 Cal.Rptr.3d 308 15, 30, 31, 33
PAGE
People v. County of Kern
(1974) 39 Cal.App.3d 830, 115 Cal.Rptr. 67 34
Rubin v. City of Burbank
(2002) 102 Cal.AppAth 655G 12
Sacramento Old City Association v. City Council
(1991) 229 Cal.App.3d 1011, 280 Cal.Rptr. 478 27
San Lorenzo Valley Community Advocates for Responsible Education v. San
Lorenzo Valley Unifted School District
(2006) 139 Cal.AppAth 1356, 44 Cal.Rptr.3d 128 10
Save Our Carmel River v. Monterey Peninsula Water Management
(2006) _ Cal.AppAth 2006 Cal.App. LEXIS 1124 10
Save Our Neighborhood v. Lishman
(2006) 140 Cal.App.4th 1288, Cal. Rptr.3d 10
Souza v. Westlands Water District
(2006) 135 Cal.AppAth 879, 38 Cal.Rptr.3d 78 11, 12
STATUTES
EVIDENCE CODE
§ 664 16
PUBLIC RESOURCES CODE
§ 21081 27
§ 21177 7,11,12,13
E
11
CEQA GUIDELINES (14 Cal.Code of Regulations, § 15000 et seq)
§ 15088
33
§ 15091
27
§ 15126.2
22,23,24
§15126.4
28
§ 15151
15
§ 15384
31,33
CALIFORNIA RULES OF COURT
§ 13(b)(6) 11
OTHER AUTHORITIES
Remy, Thomas, et al., Guide to the California Quality Act (10" Edition 1999)
§ XI Judicial Review, p. 579 12
W itkin, California Procedure, Appeal § 320 31
INTRODUCTION
E
The City of Rosemead hereby responds to the Amicus Curiae brief filed by
the State Attorney General in support of Petitioners. In Bakersfield Citizens for
Local Control v. City of Bakersfield (2004) 124 Cal.AppAth 1184, 22 Cal.Rptr.3d
203, the Court of Appeal reiterated that "the judicial system has a narrow role in
land use battles that are fought through CEQA actions" and the court would not
become involved in the underlying ideological arguments. (124 Cal.App.4th at
1197.) The City of Rosemead respectfully requests this court to review the
Attorney General's amicus brief in light of the fact that the case before this Court
involves political undercurrents that go far beyond disagreements over the
environmental impacts of a Wal-Mart.
Unlike most environmental disputes, this case has not been limited to
citizens concerned about the environment. In addition to the local County
Supervisor whose constituents are directly affected by the Project, other politicians
have also stepped forward to oppose the Wal-Mart, including Senate Majority
Leader Romero, Assemblywoman Judy Chu, and Congresswoman Hilda Solis.
The public hearing process has been used as a platform to announce at least one
candidacy for elective office (AR 14, Tab 41, 4956:8-15), the Department of
Alcoholic Beverage Control has inexplicably decided to halt the processing of
Wal-Mart's ABC licence, and two members of the City Council are facing a recall
over this issue.
0
The written and oral comments of these politicians show what this litigation
is really all about. Assemblywoman Chu spoke mostly about the types of jobs that
Wal-Mart would offer, the alleged lack of benefits available to employees, and the
feared impact of Wal-Mart on neighboring businesses in the community. (AR 14,
Tab 41, 4951:21 - 4953:7.) Congresswoman Solis also based her opposition on the
fact that Wal-Mart would "threaten the wages, healthcare benefits, and livelihoods
of workers in our community." (AR 11, Tab 27, 4405.) The Garvey School Board
objected to the types of jobs that Wal-Mart would provide. (AR 14, Tab 41,
4956:21 - 4958:13.) But perhaps most telling of all are the comments made by
Senator Romero who, after discussing Wal-Mart's health care policies, ended her
address to the City Council with:
Those kinds of employers should be driven out of a community, not
invited in.
(AR 14, Tab 41, 4948:10-11); and
We're going to see ourselves either in court or at the ballot box.
(AR 14, Tab 41, 4098:22-23).
Now, late in the game, the Attorney General steps in, in an election year, on
air quality issues that have never been raised or briefed. While the City of
Rosemead believes that the Attorney General is sincere in its efforts to protect the
health of the region, it cannot help but wonder why the Attorney General waited
until near completion of the project to voice its concerns.
r1
0
The EIR for the project involved a thorough analysis and disclosure of air
impacts. The Initial Study acknowledged that there were potentially significant air
quality impacts relating to implementation of applicable air quality plans, violation
of air quality standards, cumulative net increases in criteria pollutants in a non-
attainment area, and exposure of sensitive receptors to substantial pollutant
concentrations. (AR 2, Tab 8, 598.) A study was prepared on the air quality issue
by an expert in the field (AR 4, Tab 10, 2007-2016) and included in the Technical
Appendix portion of the EIR (AR 3, Tab 9, 1359-1453 [combined Air Quality and
Noise Impact Study]) and the EIR itself contained a thorough discussion of the
issue (AR 2, Tab 8, 428-475).
Contrary to the assertions of the Attorney General, the City has always
acknowledged the significant impacts related to air quality and has never
minimized the health impacts. The EIR clearly provides that construction will
exceed SCAQMD thresholds for the following emissions: reactive organic gases
(ROG), oxides of nitrogen (NO.), and particulates-less-than-ten microns (PM,o).
(AR 2, Tab 8, 276.) Similarly, the EIR acknowledges that the operations will
exceed SCAQMD thresholds individually and cumulatively for the following
emissions: carbon monoxide (CO), ROG and NO, (AR 2, Tab 8, 276.) The
operational emissions are almost primarily due to motor vehicles. (AR 2, Tab 8,
467 [Table 4.4-8].) Although the City assumed a worst case scenario and counted
all vehicle trips as new trips to the project site, in reality it must be recognized that
•
•
the Wal-Mart will not have the stated impact as the projected customer base is
currently traveling outside of the City to obtain the needed services and supplies
(AR 10, Tab 24, 4281:6 - 4282:9; AR 14, Tab 41, 4921: 3-10, AR 16, Tab 47,
5298), including trips to other Wal-Marts (AR 16, Tab 47, 5298).
While the underlying theme of the amicus brief is that the EIR failed to
provide adequate information on the issue of air quality, it focuses on essentially
four very specific subissues on this topics: failure to disclose the air quality effects;
failure to disclose the related health impacts; failure to adopt or make findings
regarding mitigation measures; and failure to adequately respond to comments.
Before this Court substantively addresses these issues, it should first determine
whether it is even proper for amicus to raise these issues.
ARGUMENT
AMICUS CURIAE MAY NOT RAISE NEW ISSUES ON
APPEAL EXCEPT IN LIMITED CIRCUMSTANCES
An amicus curiae brief may provide a court with a broader
perspective to a case than what is brought by the actual litigants. (Connerly
v. State Personnel Board (2006) 37 CalAth 1169, 1177, 39 Cal.Rptr.3d
788.) Except in very limited circumstances, the court will consider
arguments raised by an amicus only to the extent that the argument was
raised by either party or is integrally intertwined with such issues. (Central
and West Basin Water Replenishment District v. Southern California Water
E
•
Company (2003) 109 Cal.App.4th 891, 902, 35 Cal.Rptr.2d 486.) The
court generally does not consider arguments raised for the first time by
amicus and should not lightly deviate from this rule. (Central and West
Basin Water Replenishment District, supra, 109 Cal.App.4th at 902; La Vie
v. Proctor and Gamble Co. (2005) 105 Ca1.App.4th 496, 504, 129
Cal.Rptr.2d 486.)
The rare circumstances in which a court does allow new issues to be
raised by an amicus are limited to cases where the issue is purely one of
law, based on undisputed facts, and imposes important questions of public
policy. (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 654-655, fn. 3,
209 Cal.Rptr. 682.)
II. THE ISSUES RELATING TO AIR QUALITY SHOULD NOT
BE RAISED FOR THE FIRST TIME BEFORE THIS COURT
There is no doubt that even the general issue of air quality was not
briefed by either party on appeal. (Amicus brief, p. 3.) The Attorney
General should not be allowed to now raise the general air quality issue, let
alone the specific subissues, before this Court as this is not one of the rare
exceptions discussed above where an amicus may raise a new issue on
appeal.
A. The Air Quality Issue Was Never Briefed By The Parties
•
The Attorney General tries to evade the general rule prohibiting new
issues to be raised on appeal by stating, without authority, that this Court
may consider an issue that was raised below, even if it is not raised by the
parties on appeal. (Amicus brief, p. 3.) Not only is this statement contrary
to legal authority which requires an amicus to take the case as it finds it
(Lance Camper Manufacturing Corp. v. Republic Indemnity (2000) 90
Cal.AppAth 115 1, 1 161 n. 6, 109 Cal.Rptr.2d 515), it is contrary to the
actual facts of the case.
With due respect to the Attorney General, the contention that the
matter was briefed below is simply incorrect. In fact, the issues raised by
the Attorney General were never even raised during the City's hearing
process and would be barred outright by Public Resources Code section
21 177 if any party or amicus other than the Attorney General attempted to
raise this issue.
Appellant's Opening Brief in the trial court raised a litany of issues:
failure to find that the alternatives were infeasible; failure to consider
alternative locations; and failure to adequately analyze the twenty-four hour
operation, traffic, light and glare, urban decay, earthquake risks, native bird
species, and drainage. (Appellant's Appendix, Tab 9, 110-138.) The
drainage challenge was withdrawn in the Reply Brief. (Appellant's
Appendix, Tab 18, 346 n. 13.) The Attorney General did not, and cannot,
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provide any citation to the Administrative Record where air impacts were
briefed because, contrary to its assertion, the issue was never addressed.
In an attempt to bootstrap this issue into one that this Court may
consider, the Attorney General also argues that the "mitigation issue is
inherent in the consideration of alternative project designs...." (Amicu.s
brief, p. 3.) Assuming this ambiguous statement means the mitigation of air
impacts was a factor that was considered in looking at project alternatives,
this is not the same or even related to the issues raised by the Attorney
General herein. In no way should this be considered an intertwining of the
issues now raised in the amicus brief. Furthermore, the adequacy of the
alternative project design analysis was not raised by the Appellant - only the
sufficiency of the findings of infeasibility.
Not only were the issues never raised before the trial court in any
fashion, the general issue of air quality was specifically waived by
Appellant. In El Morro Community Association v. California Department
of Parks and Recreation (2004) 122 Cal.App.4th 1341, 1351, 19
Ca1.Rptr.3d 445, the court of appeal held that even where an issue was
raised in a CEQA petition, it was considered waived where it was not raised
in a statement of issues or pursued at the hearing. Similarly, in the present
case, Appellant raised the issue of air quality in its petition (Appellant's
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Appendix, Tab 1, 4, ¶ 4), but then waived the issue when it failed to raise
the matter before the trial court.
Moreover, the specific issues with regard to air quality that are now
raised by the Attorney General were never even raised during the public
hearing process. Case law is clear that the generalized comments that were
made by the public regarding concern over air pollution do not satisfy the
exhaustion doctrine as to the more specific air quality issues now being
raised. (Coalition for Student Action v. City or Fullerton (1984) 153
Cal.App.3d 1194, 1197-1198, 200 Cal.Rptr. 855. See also City of Walnut
Creek v. County or Contra Costa (1980) 101 Cal.App.3d 1012, 162
Ca1.Rptr. 224 [court determined that the fact that the City raised general
concerns regarding density based on its own plans was not sufficient to
preserve an argument that the density exceeded the County's general plan].)
B. The Amicus Brief Does Not Raise A Pure Question Of
Law
As set forth above, this Court should only allow an amicus to raise a
new issue on appeal where it is a pure question of law involving an
important public policy. Questions of law relate to the selection or
interpretation of a rule, a question of fact is one that concerns the
establishment of historical or physical facts, and a mixed question of law
and fact concerns the application of the rule to the facts and the following
determination of whether the rule was satisfied. (Crocker National Bank v.
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City and County of San Francisco (1989) 49 Cal.3d 881, 888, 264 Cal.Rptr.
139.) Questions of law are entitled to independent review while questions
of fact are reviewed under the substantial evidence test. (Id.)
In the CEQA context questions of law involve such matters as the
applicability of statute to a given project (Save Our Neighborhood v.
Lishman (2006) 140 Cal.AppAth 1288, Cal.Rptr.3d_), the
interpretation of language in the CEQA Guidelines or of a CEQA
exemption (Save Our Carmel River v. Monterey Peninsula Water
Management (2006) Cal.AppAth 2006 Ca1.App. LEXIS 1124;
San Lorenzo Valley Community Advocates for Responsible Education v.
San Lorenzo Valley Unified School District (2006) 139 Cal.AppAth 1356,
1375, 44 Cal.Rptr.3d 128), application of the fair argument standard
(Banker's Hill, Hillcrest, Park West Community Preservation Group v. City
of San Diego (2006) 139 Cal.App.4th 249, 264, 42 Cal.Rptr.3d 537), and a
determination of what constitutes a project under CEQA (Lincoln Place
Tenants Assn. v. City of Los Angeles (2005) 130 Cal.App.4th 1491, 1493,
31 Cal.Rptr.3d 353).
The Attorney General does not raise any such issues in its amicus
brief. Instead, the Attorney General makes four specific arguments with
regard to the adequacy of the EIR, and the City's findings, each of which
requires a review of the Administrative Record to determine if there is
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compliance with CEQA. More specifically, the Attorney General argues:
the EIR fails to provide sufficient information regarding the impacts of air
quality; the EIR fails to provide sufficient information regarding the public
health effects of the air emissions; the EIR fails to adopt and/or make
findings regarding suggested air mitigation measures; and the responses to
comments were inadequate. As these are not pure questions of law, they
do not fall within the exception to the rule of when new issues may be
raised by an a►nicus on appeal.
C. Policy Considerations Disfavor Raising A New Issue On
Appeal
The City of Rosemead is mindful of the fact that Public Resources
Code section 211 77(d) excuses the Attorney General from complying with
the exhaustion requirement in CEQA cases when it is a party to the lawsuit.
However, even though the Attorney General may file an amicus brief
without permission of the Court pursuant to California Rule of Court
13(b)(6), section 21 177(d) does not excuse the attorney general from
complying with the rules related to amicus briefs. Even where an issue
raised for the first time on appeal involves a pure question of law with
undisputed facts involving important public policy, the appellate court has
discretion whether to consider the issue. (Souza v. Westlands Water
District (2006) 135 Cal.AppAth 879, 898, 38 Cal.Rptr.3d 78; Rubin v. City
of Burbank (2002) 102 Cal.App.4th 655G.) In determining whether such
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discretion should be exercised in this case, it is important to keep in mind
the policies behind the exhaustion doctrine and the rule that issues should
not be raised for the first time on appeal.
The primary purpose of the exhaustion doctrine set forth in Public
Resources Code section 21 177 is to make sure that the public agency is
given the chance to receive and respond to factual issues and legal theories
before it makes a decision that is subject to judicial review. (Corona-Norco
Unified School District v. City of Corona (1993) 17 Cal.App.4th 985, 997,
21 Ca1.Rptr.2d 803; Coalition for Student Action, supra, 153 Ca1.App.3d at
1198.) Without the exhaustion doctrine parties would refrain from
revealing their grievances and disputes that could be resolved before the
local agency would instead burden the courts. (Remy, Thomas, et al.,
Guide to the California Environmental Quality Act (10`h Edition 1999) § XI
Judicial Review, p. 579.) Similarly, the general prohibition against raising
an issue for the first time on appeal is to prevent unfairness to the trial court
and any opposing litigants. (Bonner v. City of Santa Ana (1996) 45
Cal.App.4th 1465, 1476, 53 Cal.Rptr.2d 671; A Local and Regional
Monitor v. City of Los Angeles (1993 ) 12 Cal.App.4th 1773, 1804, 16
Cal.Rptr.2d 358.) The rule requiring exhaustion of remedies is required to
preserve the integrity of the proceedings. (City of Walnut Creek v. County
of Contra Costa (1980) 101 Cal.App.3d 1012, 1019, 162 Cal.Rptr. 224.)
• w
Had the issues now raised by the Attorney General been raised
during the administrative hearing, they could have been addressed by the
City long ago. Assuming arguendo that there is merit to the issues raised by
the Attorney General, had the Attorney General exercised the discretion
granted to it under Public Resources Code section 21 177(d) at the trial court
level, the City could have remedied any defects when it did the Revised EIR
in 2005.
While the Attorney General certainly has an interest in protecting the
environment, in the present case the Attorney General adds no novel
insights; it simply stands in the shoes of the Appellant on an issue that was
waived long ago. Allowing the Attorney General to raise the air quality
issues at this time goes against the countervailing public policies of
exhausting administrative remedies, preventing unfairness to the City and
the applicant, and preventing delay.
This Court should not consider the issues raised in the amicus brief.
III. STANDARD OF REVIEW
This is not a CEQA case in which an argument is being made that
evidence was excluded which would have led to a finding of a significant
impact, for in the present case there is no doubt that the EIR analyzed air
• •
quality and found the impacts to be significant Nor is this a case in which
the argument is being made that there is not substantial evidence to support
the findings, because there is no disagreement between the City conclusions
[AR 1, Tab 4, 87-91 ] and the Attorney General that there are significant air
impacts. Instead, the gist of the Attorney General's argument is the paradox
that City failed to provide enough information about the harmful air impacts
to substantiate its findings that the adverse air impacts are significant.
The Attorney General's argument is subject to review under the
substantial evidence standard as it is a challenge to the scope of an EIR's
analysis of a topic. (Bakersfield Citizzens for Local Control, supra, 124
Cal.AppAth at 1198.) A more favorable standard of review may not be
obtained by arguing that the EIR failed to disclose evidence and therefore
the lead agency did not proceed in a manner required by law. (Barthelemy
v. Chino Basin Municipal Water District (1995) 38 Cal.AppAth 1609,
1620, 45 Ca1.Rptr.2d 688.)
The issue of a failure to include information in an EIR rises to the
level of a failure to proceed in a manner required by law only if the analysis
in the EIR is clearly inadequate or unsupported. (Barthelemy, supra, 38
Cal.App.4th at 1620; emphasis added.) Otherwise, CEQA only requires an
EIR to reflect a good faith effort at full disclosure and the analysis need not
be perfect or exhaustive. (Kings County Farm Bureau v. City of Hanford
0
•
(1990) 221 Cal.App.3d 692, 712, 270 Cal.Rptr. 650; see also Bakersfield
Citizens for Local Control, supra, 124 Cal.App.4th at 1198. CEQA
Guidelines § 151511
It is not the province of this court to reweigh the evidence and
determine whether the ultimate conclusions are correct. (Mira Mar Mobile
Community V. City of Oceanside (2004) 14 Cal.AppAth 477, 486, 14
Cal.Rptr.3d 308.) Instead, the court's role is to limit its judicial review to a
determination of whether the EIR is sufficient as an information document
(id.) and defer to the City's substantive conclusions provided they are
supported by substantial evidence in light of the whole record (Chaparral
Greens v. City of Chula Vista (1996) 50 Cal.AppAth 1134, 1143, 58
Cal.Rptr.2d 152). The City's actions in this case are presumed to comply
with the law (Evid. Code y 664) and the burden is on the opponent to show
otherwise (Barthelemy, surpra, 38 Cal.AppAth at 1617.)
A review of the Administrative Record shows that the EIR
adequately addresses the issues of air quality and suffices as an informative
document. Moreover, the Attorney General's arguments highlight the
tension between the dueling policies of requiring exhaustion at the
administrative level so that the City could have responded to alleged
'The CEQA Guidelines are found at 14 Cal.Code of Regulations, section 15000 et seq.
•
Ll
deficiencies and allowing the Attorney General to enter at this late stage of
the game.
IV. A BRIEF OVERVIEW OF THE AIR QUALITY ANALYSIS
The EIR provides a thorough analysis of air quality related to the
project. The discussion on air quality starts with a review of fundamentals
relating to air pollution as this is a complex and technical topic.
Although the terms "air pollution" and "smog" are often used, it is
important to understand that air pollution is really made up of many
substances that are generated from a variety of sources. (AR 2, Tab 8, 428.)
The air quality of the study area was determined by the primary pollutants -
those emitted directly from a source, as well as the secondary pollutants -
those created with the passage of time in the air mass. (AR 2, Tab 8, 429.)
Air standards currently exist for a variety of air pollutants known as
"criteria air pollutants." (AR 2, Tab 8, 429.) These pollutants include
carbon monoxide (CO), Oxides of Nitrogen (NOJ, Sulfur Dioxide (SO2),
and Suspended Particulate Matter, which are rated by the size of the matter
(i.e., PM,,). (AR 2, Tab 8, 429-432.) There are both state and federal
standards for these various pollutants (AR 2, Tab 8, 436) which are not
necessarily the same. These air pollutants are subject to a maze of federal,
state and regional regulations.
•
9
Federal law requires each state to adopt a plan providing for
implementation, maintenance and enforcement of the primary and
secondary national air quality standards. (AR 2, Tab 8, 443.) This
requirement is met by the State Implementation Plan. (AR 2, Tab 8, 443.)
The California Clean Air Act is generally more stringent that the
federal Clean Air Act and establishes a legal mandate to achieve state air
quality standards at the earliest practicable date. (AR 2, Tab 8, 444.)
South Coast Air Quality Management District (SCAQMD) has the
responsibility to lead the regional effort in attaining state and national air
quality standards. (AR 2, Tab 8, 447.) In order to do this, SCAQMD is
required to develop and implement an Air Quality Management Plan
(AQMP) in order to reduce emissions. (AR 2, Tab 8, 447.) The AQMP
was developed in conjunction with the Southern California Association of
Governments (SCAG) (AR 2, Tab 8, 448), which is the Metropolitan
Planning Organization for the area at issue under the federal Clean Air Act
(AR 2, Tab 8, 443).
SCAQMD controls stationary air pollution sources through rules and
regulations addressing a wide variety of industrial and commercial
operations. (AR 2, Tab 8, 450-453.) It is also SCAQMD's responsibility
to comment on environmental documents for projects that may cause
significant adverse air quality impacts. (AR 2, Tab 8, 459.)
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In order to help a lead agency determine if there are significant air
impacts, SCAQMD has established construction and operational thresholds
which are indicators of potential air quality impacts. (AR 2, Tab 8, 453.)
While the City of Rosemead accepted these indicators as thresholds of
significance, it is important to recognize that these thresholds are not the
same as the attainment goals of the state and federal Clean Air Acts. In
other words, just because a project exceeds a threshold does not mean that
the area will not meet the state and federal goals. Conversely, goals may
not be achieved even if a project does meet the guidelines as pollutants
come from a variety of sources.
The ambient air quality standards that have been established by both
the state and federal government take into account that persons with
sensitivities will be impacted before healthy individuals. The standards are
therefore set below those that would be adequate for a healthy adult.
Instead, the standards are designed to protect the public health of the
sensitive receptor population - asthmatics, the very young, the elderly, the
weak, people engaged in heavy work or exercise. (AR 2, Tab 8, 455-456;
AR 3, Tab 9, 1378.)
V. THE EIR CONTAINS SUBSTANTIAL EVIDENCE
REGARDING AIR QUALITY IMPACTS AND PUBLIC
HEALTH EFFECTS
•
A. The EIR Adequately Informs Of The Air Quality Effects
The Attorney General makes several arguments with regard to the
adequacy of the air quality analysis, none of which have merit.
1. The Administrative Record discloses substantial
evidence to support the analysis of the air quality
impacts.
The Attorney General first argues that the EIR does not actually
disclose the air quality effects of the project. A review of the
Administrative Record shows otherwise.
After the EIR provided the in-depth review of air quality which was
very briefly summarized above, it analyzed the actual impacts of the project,
providing the public and decisionmakers with infonnation as to what the
impacts would be under a worst case scenario.'
The first potential impact was that there would be exposure to
pollutants from short-tern construction impacts. (AR 2, Tab 8, 460-465.)
This analysis clearly states that project related emission would be exceeded
for reactive organic gases (ROG), oxides of nitrogen (NOJ, and suspended
particulate matter (PM,(,), even after mitigation measures were imposed.
(AR 2, Tab 8, 460-465). The EIR clearly discloses the extent to which the
' The analysis in the EIR is based upon the Air Impact study contained in the Technical
Appendices of the EIR which was prepared by the consulting finn of ENDO Engineering. (AR
4, Tab 10, 2007-2016.)
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0
emissions are expected to be exceeded. (AR 2, Tab 8, 462 [Table 4.4-6]
and 464 [Table 4.4-7].)
Similarly, the EIR goes on to examine the exposure to pollutants
from long-term operational impacts from stationary and mobile sources.
(AR 2, Tab 8, 466-475.) The EIR clearly sets forth that there will be
significant impacts, caused primarily from motor vehicle emissions, with
relation to carbon monoxide (CO), reactive organic gases (ROG), and
oxides of nitrogen (NO.). Again, the EIR also sets forth the specific
amount by which SCAQMD pollutant levels will be exceeded. (AR 2, Tab
8, 467 [Table 4.4-8].)
The EIR therefore contains a clear and unequivocal pronouncement
of the significant air impacts related to the project resulting from exceeding
SCAQMD's threshold criteria and in no way can the information be
considered "conclusory" as alleged by the Attorney General.
2. The issue of compliance with the AQMP is nothing
more than a red herring.
In addition to arguing that the EIR's air impact analysis is
conclusory, the Attorney General also argues that the analysis is insufficient
because it is not possible to tell if the project is consistent with the AQMP.
(Anticus brief, pp. 14-17.)
The AQMP, along with the Regional Growth Management Plan
developed by SCAG, are based on population and employment growth
0
projections. (AR 2, Tab 8, 1364 [#2].) In order to be consistent with the
AQMP, a proposed project must be consistent with the key underlying
population and employment growth projections. (AR 3, Tab 9, 1413.)
The air impact study clearly notes that prior to the requested general
plan amendment, development of the project site with offices under the then
existing land use designation could yield between 750 - 1,120 jobs "without
increasing the population of the study area. " (AR 3, Tab 9, 1413;
emphasis added.) The study then goes on to note that development under
the requested land use designation would generate approximately 509 jobs
which "is within the range of jobs that be developed under the current
General Plan designation " (AR 3, Tab 9, 1413; emphasis added); in other
words, there would not be an inconsistency. This statement is consistent
with the analysis in the EIR relating to growth-inducing impacts which
provides that while the creation of new jobs is a direct growth-inducing
effect, the impact can be offset to the extent by which the jobs will be filled
by existing residents. (AR 2, Tab 8, 543.) As Rosemead has a very high
unemployment rate (AR 10, Tab 24, 4235: 19-22), it is expected that the
approximately 500 new jobs will be filled by existing residents and would
not lead to any direct population growth. (AR 2, Tab 8, 543.) Although the
project would not directly lead to new growth, the EIR makes clear that the
project would possibly contribute to cumulative growth over the next 20
Pi
0
years and could indirectly cause population growth. (AR 2, Tab 8, 543-
544.)
There is no confusion with regard to consistency with the AQMP -
short-term the project is consistent with projections, but as CEQA requires
the examination of growth-inducing impacts (CEQA Guidelines §
15126.2(d)), the EIR necessarily disclosed that in the long-term there may
be impacts due to inconsistency with the AQMP. (AR 3, Tab 9, 1414.) As
such impacts were clearly defined to be indirect, exact quantification was
not possible.
In any event, the issue of AQMP consistency is really a red herring.
As a project can exceed the SCAQMD's significance thresholds even if it is
consistent with the City's General Plan and the Regional Growth
Management Plan (AR 2, Tab 8, 455; AR 3, Tab 9, 1363), it is not really
important to know the consistency to determine the air impacts. What is
important to know in order to determine the severity of the air impacts is
whether the thresholds for air pollutants will be exceeded and by how much.
This information was disclosed.
B. The EIR Adequately Informs Of The Health Effects That
Can Result From Air Quality Impacts
Citing Bakersfield Citizens for Local Control, supra, 124
Cal.AppAth 1184, the Attorney General argues that the EIR fails as an
informational document because it does not correlate the adverse air quality
• •
effects to resulting adverse health effects. The Attorney General misreads
Bakersfield in arguing for a specific correlation between the amount of air
emissions and specific health impacts.
CEQA Guidelines section 15126.2(a) provides that an EIR should
include a discussion of health and safety problems caused by physical
changes from a project. The Bakersfield court found that the EIRs in
question in that case did not satisfy this requirement with regard to health
impacts caused by adverse air quality impacts as they only contained brief
references to respiratory illnesses. (124 Cal.AppAth at 1219-1220.)
Specifically, the court stated that although the EIRs concluded that there
would be significant and unavoidable adverse air quality impacts, the EIRs
failed to acknowledge the resultant health consequences even though there
is a well-known connection between reduction in air quality and increases
in respiratory conditions and illnesses. (Id.)
In contrast to the brief reference to "respiratory illnesses," in
Bakersfield, the EIR in this case clearly provided substantial evidence of
health impacts relating to air quality impacts. The EIR disclosed the
various effects of six different types of air pollutants on sensitive receptors
rates (AR 2, Tab 8, 439-441; AR 3, Tab 9, 1380-1381, 1450),
acknowledged that there is a cancer risk that is driven by exposure to diesel
particulate matter and other substances (AR 2, Tab 8, 434), discussed the
•
u
impact of toxic air contaminants on health (AR 2, Tab 8, 445-446), and
discussed health problems faced by sensitive receptors (AR 2, Tab 8, 456).
While there is admittedly no correlation such as "x extra pounds of air
pollutant y will cause z number of people to experience a specific health
impact," there is certainly enough information in the record to inform the
decisionmakers and the public of the harmful health impacts.3
C. The Public Understood The Air and Health Impacts
The gist of the Attorney General's amicus brief seems to be that
there was not sufficient information to understand the severity of the
impacts or that the information that was provided was unclear. Such is
simply not the case. A review of the Administrative Record shows that the
public very clearly understood both the air and the health impacts. In fact,
many of the individuals who commented on the matter recited the air
pollution and health impact information contained in the EIR to argue why
the project should not be approved.
For example, Save Our Community, the Appellant in this case,
recited detailed information from the EIR and Technical Appendices
regarding the air pollution that would be expected, the impact on sensitive
receptors, and the health impacts to thousands in the community as reason
'It is unclear whether such a direct correlation could even be made. However, had the issues
been raised at the administrative level, the City would have at least had the opportunity to
respond.
•
•
to terminate the project. (AR 7, Tab 13, 3252, 3255, 3304-3305.)
Similarly, several other people commented that the air pollution/health
issues were too great to approve the project. (AR 7, Tab 13, 3327, 3332,
3375, 3394, 3406-3407, 3431, 3432, 3495.) Even more specific is the letter
from a registered nurse living in the area asking that the project be turned
down:
The draft EIR is quite clear in stating that the project
related operational emission projections for will have
adverse air quality impact. It is very explicit on the health
effects of short and long term exposure, including difficulty
breathing, even for healthy individuals.
(AR 7, Tab 13, 3313.)
The only question that was raised was one of a rhetorical nature
wherein an individual posed the general question of how the increased
smog would affect her health. (AR 7, Tab 13, 3323.) In response the
reader was referred to the discussion on air quality. (AR 7, Tab 13, 3325.)
Given the public's understanding of this issue, it is hard to
understand the Attorney General's difficulty in comprehending what
significant impacts were discussed in the EIR.
D. The Analysis Of The Air Quality Mitigation Measures Is
Sufficient
The Attorney General's last argument with regard to the alleged
insufficiency of the air impact analysis is that the document fails to evaluate
the effectiveness of the mitigation measures or explain by how much the
F J
•
pollutants will be reduced from imposition of the mitigation measures. This
argument is also without merit as the Attorney General attempts to impose
requirements that do not exist.
CEQA requires that certain findings be made where a project is
expected to have a significant effect on the environment. (Public Resources
Code § 21081; CEQA Guidelines § 15091.) One of the findings that can be
made is that changes or alterations have been required which will mitigate
or avoid the significant effects. (Public Resources Code § 21081(a); CEQA
Guidelines § 15091(a).)
The general standard of review for determining the adequacy of
mitigation measures is the substantial evidence standard. (Laurel Heights
Improvement Association of San Francisco, Inc. v. Regents of the
University of California (1988) 47 Cal.3d 376, 407, 253 Cal.Rptr. 426.)
However, this is the test that is used to determine if a mitigation measure
will be effective where a conclusion has been reached that the mitigation
measure will reduce the impact to below the level of significance. (See,
e.g., Laurel Heights, supra, 47 Cal.3d at 388 and Sacramento Old City
Association v. City Council (1991) 229 Ca1.App.3d 1011, 1026-1030, 280
Cal.Rptr. 478, for application of the substantial evidence test where the
mitigation measures were found to reduce the impacts below a level of
significance.) CEQA does not even require a discussion of mitigation
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measures unless they are expected to reduce significant adverse impact
(CEQA Guidelines § 15126.4(a)(1); Laurel Heights, supra, 47 Cal.3d at
417) and certainly does not require the analysis suggested by the Attorney
General to quantify the amount of reduction where there is no contention
that it will significantly reduce the impacts.
Despite the fact that in the present case the City did not determine
that the air impacts would be mitigated below a level of significance, the
Attorney General still wants to impose a substantial evidence test on the air
quality mitigation measures that were adopted, finding fault with the fact
that there was no quantification of the amount of the air pollutants after
mitigation. If this were a case in which the City had determined that the
mitigation would reduce the impacts to below a level of significance, then
perhaps there would be merit to this argument. However, as the EIR
determined that the proposed mitigation measures would not be effective to
reduce the significance of the impacts (AR 2, Tab 8, 465, 475), it is unclear
what further information should have been included to properly inform of
the significant impacts when the EIR fully disclosed based on a worst case
scenario, i.e., non-mitigated impacts.
VI. THE CITY COMPLIED WITH CEQA WITH REGARD TO
MITIGATION MEASURES
The Attorney General's next argument focuses on an alleged failure
of the EIR to properly adopt all suggested mitigation measures. This two-
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fold argument consists of allegations that the EIR did not analyze or discuss
the mitigation measures, nor did the City find the measures infeasible.
Once again, the Attorney General's arguments are without merit and belied
by the record.
As discussed above, SCAQMD reviews projects with relation to air
quality impacts and analyzes how it complies with air quality thresholds. In
its review SCAQMD does not actually come up with unique mitigation
measures for each project; instead it provides direction to various
documents which it has prepared to assist in the analysis.
SCAQMD was provided with a Notice of Preparation ("NOP") of
the EIR in 2003. In response to this notice the City of Rosemead was
directed to the 1993 Air Quality Handbook. (AR 2, Tab 8, 649.)
Additionally, SCAQMD's response to the NOP provided that if there were
significant impacts, the City should consult the AQMD's Air Quality
Handbook for sample mitigation measures. (AR 2, Tab 8, 650.)
As discussed above, a thorough air quality analysis was prepared for
the project. (AR 3, Tab 9, 1359-1419.) Potential air quality mitigation
measures from a list developed in 1991 by SCAQMD were included as part
of the analysis. (AR 3, Tab 8, 1417-1418.) The SCAQMD provided two
substantive comments in response to the Draft EIR.
A. Construction Mitigation Measures
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SCAQMD commented that because construction emissions for NO,
and PM,o were significant, the City should consider adding a list of
mitigation measures, if applicable and feasible. (AR 7, Tab 13, 3222-3223
[SCAQMD-3]; emphasis added.) The City responded that all mitigation
measures were applicable and feasible and would be incorporated into the
project. (AR 7, Tab 13, 3225.) Significantly, SCAQMD did not ask the
City to incorporate the suggested 1991 construction mitigation measure of
use of low-sulfur fuel for equipment. Nevertheless, the Attorney General
now presumes to know more than the SCAQMD in arguing that the
mitigation measure, one from a list of generally recommended measures
and not project specific, should have been included.
It is not the place of this court to reweigh the information and
determine if the air quality expert and SCAQMD were correct in
determining that the mitigation measure need not be incorporated. (Mira
Mar, supra, 14 Cal.AppAth at 486.) Clearly, these expert opinions
constituted substantial evidence which supports the City's decision not to
impose the requirement for low-sulfur fuel for construction equipment.
(CEQA Guidelines § 15384(b).)
Furthermore, with regard to any discussion of construction air
impacts, it should be remembered that construction is substantially complete
and the issue is therefore moot; as such, the issue should not be considered
by this Court. (Cucamongans United.for Reasonable Expansion v. City of
Rancho Cucan►onga (2000) 82 Cal.AppAth 473, 479, 98 Cal.Rptr.2d
202;Witkin, California Procedure, Appeal § 320.) Although the court in
Bakersfield recently determined that the mootness arguments did not apply
even though the construction was completed, that case is distinguishable.
(124 Cal.AppAth at 1203-1204.) In Bakersfield, the issues had to do with
matters that were of on-going concern and that could still be mitigated, such
as urban blight decay and cumulative impacts where additional mitigation
measures could still be imposed. (Id.) In contrast, in the present case the air
impacts from construction have taken place and there is no effective relief
which can be granted.
B. Operational Mitigation Measures
SCAQMD's other substantive comment was that the project could
generate significant diesel exhaust and again provided a list of mitigation
measures that should be incorporated, if applicable and feasible. (AR 7,Tab
13, 3221-3222 [SCAQMD-2]; emphasis added.) These measures included
the two operations measures the Attorney General claims were excluded: to
restrict the operation to clean trucks; and to require or provide incentives
•
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for trucks using low-sulfur diesel fuel. The City again provided a response
to these comments.
Specifically, the response first noted that there was no defined
threshold to require a diesel emission risk assessment and the SCAQMD
makes the determination of the need for such an assessment on a case by
case basis. (AR 7, Tab 13, 3223.) The response then went on to document
that following the receipt of SCAQMD's letter, there was further discussion
between the EIR consultant and SCAQMD. Once it was made clear that
there were to be far fewer heavy duty trucks than had been estimated by
SCAQMD, it was agreed that a diesel emission health risk assessment
would not be required and that certain mitigation measures would not be
included in the project. (AR 7, Tab 13, 3223-3225.) How it can be alleged
that this is not a good faith and reasoned response is beyond
comprehension. Had SCAQMD had an issue with the City's decision, it
could have provided additional comment. However, SCAQMD had no
further comments on the project.
Once again, the Attorney General presumes to know more than
SCAQMD in arguing that these mitigation measures should have been
adopted or found to be infeasible. Again, it is not up to this court to
reweigh the evidence (Mira Mar, supra, 14 Cal.AppAth at 486) and the
information provided constitutes substantial evidence on which the City
•
Council based its decision not to incorporate the mitigation measures
(CEQA Guidelines § 15384(b)).
VII. THE RESPONSES TO COMMENTS WERE ADEQUATE
As a last argument the Attorney General complains that the
responses to comments were not adequate with regard to the air impact
issues and that the responses tried to downplay the dangers of the air
impacts. The Attorney General is incorrect in the legal obligation placed
upon the City as well as factually incorrect as to the City's responses.
CEQA Guideline section 15088(c), upon which the Attorney General
relies (amicus brief, p. 28), does in fact provide that responses must be good
faith and provide a reasoned analysis. What the Attorney General leaves
out is the prior part of the section which provides:
In particular, the major environmental issues raised when the
lead agency's position is at variance with recommendations
and objections raised in the comments must be addressed in
detail giving reasons why specific comments and suggestions
were not accepted. (Emphasis added.)
In addition to the Guideline, case law also makes clear that detailed
responses are required where there is new or conflicting data which is
presented. (People v. County Qf Kern (1974 ) 39 Cal.App.3d 830, 842, 115
Cal.Rptr. 67.)
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The problem with the Attorney General's argument is that in the
present case, none of the comments received on the Draft EIR raised any
new or conflicting data that was at variance with the analysis provided in
the EIR. For that matter, except for the one rhetorical question discussed
above, none of the comments even raised a question to be answered. As the
comments did not raise any new or conflicting data which was at variance
with the EIR's analysis, responses were not required.
Despite the fact that the comments were really nothing more than
statements of opinion about the project based on the impacts disclosed in
the EIR, responses to the comments were still provided. However, as there
was nothing new to address, the responses primarily consisted of a
reiteration of the information contained in the EIR and the Technical
Appendices.
As the information regarding ambient air quality standards did not
confuse the public in the first instance (compare AR 3, Tab 9, 1378 with
AR 7, Tab 13, 3287, 3314-3315, 3441-3442), there is no reason to think that
it was confusing when it was included in the response to comments. Stating
that healthy adults have better tolerance levels than sensitive receptors is
simply a fact, not an attempt to downplay the seriousness of air impacts; it
is the Attorney General that is attempting to put a "spin" on this response -
not the City.
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Similarly misleading is the Attorney General's "explanation" of the
other responses related to air quality. The Attorney General objects to the
City's response relating to the exceedance of ambient air quality standards.
As explained above, the area of air pollution is a complex and intertwined
arena consisting of federal, state, and regional regulations. In order to
determine which projects are potentially significant, SCAQMD establishes
emission thresholds for both short-term and long-term impacts; these
thresholds are indicators of potential air quality impacts. (AR 3, Tab 9,
1402.) However, the fact that the thresholds for a recommended finding of
significance have been met does not mean that the state and federal air
quality standards will not be met; standards are established for the region
whereas the thresholds are project specific to see if mitigation measures
should be imposed to help meet the state and federal air quality standards.
The fact that the EIR responses indicate that there is not a direct
correlation is not a negation of the fact that current air pollution standards
are currently being violated. In fact, a review of the full responses
excerpted by the Attorney General shows that these exceedances were
specifically acknowledged in the responses, a fact conveniently omitted by
the Attorney General. (AR 7, Tab 13, 3286, 3314, 3335, 3441.)
CONCLUSION
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This is not a case in which the Attorney General should be allowed
to raise new issues that were not only not considered by the trial court, but
were never even raised in the administrative hearing. The issues presented
do not raise any questions of law; there are no issues of application of a
statute or a guideline, nor are there issues of interpretation. The Attorney
General brings nothing new to this case and does not argue any broad public
policy perspective.
If the issues are considered by this Court, then the appropriate
standard of review is the substantial evidence test. As demonstrated
throughout this brief, substantial evidence supports the EIR as an
informative document. The air quality and health impacts were discussed in
detail and adequate responses were provided to all comments. Time and
again the EIR acknowledged that the air quality impacts would be
significant; this was set forth in the Su►nmary of Significant Project Impacts
(AR 2, Tab 8, 276), the air quality discussion in the EIR (AR 2, Tab 8, 428,
465, 475), the technical appendix (AR 3, Tab 9, 1364), and in the responses
to comments (AR 7, Tab 13, 3286, 3314, 3328, 3335, 3379, 3412, 3441,
3496.) Furthermore, the City Council acknowledged the significant air
impacts and made the requisite findings. (AR 1, Tab 4, 87-91, 98-99).
SCAQMD, the responsible agency in this matter, never raised any of
the issues or concerns now articulated by the Attorney General, nor did any
member of the public. Rather than defer to the responsible agency, the
Attorney General has attempted to distort the Administrative Record in
order to insert itself into this matter, despite substantial evidence to support
the City's position.
As the Supreme Court cautioned in Citizens of Goleta Valley v.
Board of Supervisors (1990) 52 Cal.3d 553, 576, 41 Cal.Rptr.2d 157,
CEQA should not be subverted into an instrument for the oppression and
delay of development. For all of the reasons set forth herein, the City of
Rosemead respectfully requests this Court to refrain from considering the
air quality issues raised by the Attorney General, or, alternately, to
determine that the arguments are without merit.
RESPECTFULLY SUBMITTED,
WALLIN, KRESS, REISMAN & KRANITZ, LLP
August , 2006
Lisa E. Kranitz, Attorneys for Respondent,
City of Rosemead
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California. I am
over the age of eighteen and not a party to the within action, my business address
is 2800 28`h Street, Suite 315, Santa Monica, California 90405.
On August 3, 2006, I served the foregoing document described as:
RESPONDENT'S ANSWER TO THE ATTORNEY GENERAL'S AMICUS
BRIEF on the interested parties in this action by placing the original X
a true copy thereof enclosed in sealed envelopes as follows:
[X] BY U.S. FIRST CLASS MAIL. I sealed the documents in an envelope or
package addressed to the person(s) and address(es) indicated on the list, with first-
class postage fully prepaid, and then I deposited the envelope/package with the
U.S. Postal Service on that same date with postage thereon fully prepaid at Santa
Monica, California in the ordinary course of business. I am aware that on motion
of the party served, service is presumed invalid if postal cancellation date or
postage meter date is more than one day after the date of deposit for mailing in
affidavit. Executed on August 3, 2006 at Santa Monica, California 90405.
[ ] BY PERSONAL SERVICE. I caused such envelope to be hand delivered to
the office of the addressee above. Executed on at Santa Monica, California
90405.
[ ] BY CALIFORNIA OVERNIGHT. I personally delivered such envelope to a
California Overnight drop box or office in Santa Monica, California 90405.
Executed on at Santa Monica, California 90405.
[ ] BY FACSIMILE. I faxed such document to the addressee at the facsimile
number listed for each addressee on to:
I declare under penalty of perjury under the laws of the State of California
that the above is true and correct.
Kathy Pratt
MAILING LIST
John C. Nolan Attorneys for Real Parties in
Jennifer M. Guenther Interest
Gresham Savage Nolan & Tilden, P.C.
3750 University Avenue, Suite 250
Riverside, CA 92501-3335
Cory J. Briggs
BRIGGS LAW CORPORATION
99 East "C" Street. Suite 111
Upland, CA 91786
Attorneys for Appellant
Susan L. Durbin
Attorneys for Amicus Curiae
Deputy Attorney General
Office of the Attorney General
1300 I Street, Suite 125
P.O. Box 944255
Sacramento, CA 94244-2550
Clerk of the Court
Los Angeles County Superior Court
111 North Hill Street
Los Angeles, CA 90012
For delivery to Judge Yaffe
(Department 86)
Clerk of the Court
Per CRC 15(c)(2)(four copies)
Supreme Court of California
350 McAllister Street
San Francisco, CA 94102