“The EIR [environmental impact report] is to demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.”
—California Environmental Quality
Act Guidelines, Section 15003.
When I heard last spring that the Berkeley Planning Department had chosen Fehr & Peers consultants to do the transportation analysis for the environmental impact report [EIR] on the West Berkeley Bowl, I was dumbfounded.
Fehr & Peers prepared the preliminary traffic study on the Bowl for the city. They estimated that the proposed 90,000-square-foot new Bowl would generate 38,950 new vehicle trips a week, and that those 38,950 new trips would not adversely affect the environment in any significant way. Just stick a stoplight and a count-down pedestrian signal and crosswalk at San Pablo and Heinz (the Bowl is proposed to go in at 920 Heinz Ave.), they said, and everything will be hunk dory. Based on that conclusion, the city’s planning staff issued a Mitigated Negative Declaration. Translated from the planners, that means: “No Environmental Impact Report Required.”
Only after Fear & Peers’ data and analysis were subsequently challenged by an independent civil and traffic engineer hired by the West Berkeley Traffic and Safety Coalition (TASC) did the city’s planning department call for an EIR.
I cheered that move. (Disclosure: I’m a member of TASC.) But I was bewildered by the choice of Fehr & Peers as the traffic consultants for the EIR. They’d bungled the preliminary analysis. Didn’t that raise major doubts about their competence?
I posed this question to two environmental lawyers. To my surprise and consternation, they both said no, at least not as far as California courts are concerned.
One of my legal advisers was Trent Orr, Counsel to Earthjustice (formerly the Sierra Club Legal Defense Fund). Emphasizing that he was addressing CEQA [California Environmental Quality Act] standards in general and not the case of the Berkeley Bowl, Mr. Orr said: “It’s very unlikely that the court would find any significance in the city’s using the same expert. So long as the individuals who worked on the EIR study are qualified traffic experts and addressed whatever issues were raised about the negative declaration study, CEQA law indicates that the city is entitled to rely on their conclusions.”
But what authorizes the experts hired by the city is not only their professional credentials and their having addressed the environmental issues at hand. Their authority also derives from the very fact that they have been hired by the local authority that’s responsible for determining whether EIR should be certified and the associated project approved.
In the face of a legal challenge to the substance of a certified EIR, California courts, citing the constitutional separation of powers as well as their own lack of environmental expertise, habitually defer to the local agency that certified the report and approved the project associated with it. Ruling in the 1990 case Citizens of Goleta Valley v. Board of Supervisors, the California Supreme Court explained: “We may not substitute our judgment for that of the people and their local representatives.”
Even if the challengers to a certified EIR put forward, say, a traffic study by a qualified expert that reaches the opposite conclusion to the study underlying the EIR; and even if the traffic study done by the challengers’ experts supports its contrary conclusion with lots of credible evidence; the courts will rule in favor of the agency that certified the EIR, assuming that the agency had employed a qualified traffic expert who addressed the issues at hand. “Lawsuits against EIRs,” said Trent Orr, “are generally only successful when the challenger can show that the agency failed to consider some significant impact altogether.”
The California Supreme Court put it this way: “The court does not pass upon the correctness of an EIR’s environmental conclusions, but only determines if the EIR is sufficient as an informational document.” Sufficiency is evidenced by “adequacy, completeness, and a good-faith effort at full disclosure”—not correct conclusions.
What, then, moved the city to reject the negative declaration on the Bowl and demand an EIR? The standards for challenging a negative declaration are much lower than those standards for challenging an EIR. If a negative declaration is challenged in court, and (again citing Mr. Orr) “the plaintiffs can show that there is any evidence that supports a fair argument that the project may have one or more significant environmental impacts,” the court will order “an EIR to be prepared before the project can be lawfully approved.”
(I assume that the Berkeley planning staff looked at the critique of the Fehr & Peers analysis that was done by the independent traffic engineer hired by the West Berkeley Traffic and Safety Coalition, and realized that if the case went to trial, there was a good chance that the court would order the city to do an EIR on the Bowl.)
But, Mr. Orr added, “Once the approval agency agrees, as they did with the Berkeley Bowl project, to prepare an EIR,” thereby “admit[ting] that the project does pose some potentially significant impacts[,] and examines those impacts, the standard of review is reversed to favor the agency that prepared the EIR.”
So much for scientific objectivity and scrupulous expertise. According to the CEQA Deskbook, a standard reference on the subject, an EIR is “a Bridge between Science and Politics.” A better analogy, it seems, would be a bridge between Politics and Politics, especially when you consider that under CEQA, even when an EIR has concluded that a proposed development has the potential to wreak significant damage on the environment, that project can be approved by the lead agency on the basis of “overriding considerations”—for example, the need for more roads, more tax revenues or more housing.
Though I believe that it’s always better to know what you’re up against, I hesitated to write this column, for fear that it would incline Berkeley citizens to give up on the EIR process. A cynical— or should I say, realistic—observer might conclude that Fehr & Peers didn’t bungle the preliminary traffic report after all. Instead, they arrived at the very conclusions that, they knew, the Bowl’s owners (who have paid for all the environmental studies on the project) and city staff expected.
So why bother grappling with the mystifying and labyrinthine procedures mandated by the California Environmental Quality Act if it all comes down to political expediency?
One reason EIRs are worth the effort is that they buy time—time for citizens to learn about the project, to educate others in the community, and if necessary to hire their own experts. Moreover, done with integrity, as they would be in a city with a conscientious planning and legal staff, EIRs can result in better, which is to say, more environmentally respectful development.
The surest way to get a conscientious staff is to elect a mayor and council who demand integrity. “The EIR process,” says the State of California’s CEQA Guidelines, “will enable the public to determine the environmental and economic values of their elected and appointed officials[,] thus allowing for appropriate action come election day should a majority of the voters disagree.”
Of course, by election time, it’s probably too late to improve or stop a particular project. But it’s not too late to take “appropriate action” at the ballot box. Berkeley’s next municipal election is in November 2006, a date we should all keep in mind when the Bowl and its EIR come before the city council early next year.