Court Decisions Create Uncertain World for EIR Alternative Analysis

This is not intended to be another “How to” article on some aspect of EIR preparation. Rather, it is a plea for members of the Land Use community, whatever our role, to seek a common sense middle ground between today’s frequently expansive, wasteful consideration of countless alternative sites in a Project EIR and the virtual absence of any meaningful review of alternatives in pre-1988 environmental documents.

As many of you know, what I am referring to is the uncertain world of alternatives analysis which was introduced by the early 1988 decision of the California Court of Appeals in Citizens of Goleta Valley v. Board of Supervisors, 197 Cal. App. 3d 1167 (1988), and has been more clouded than clarified by the Supreme Court’s decision in Laurel Heights Improvement Association of San Francisco v. Regents of the University of California, 47 Cal. 3d 376 (1988) and the Goleta II case, Citizens of Goleta Valley v. Board of Supervisors, 216 Cal. App. 3d 48 (1989).

In the first Goleta case, the Court found that the County, by its failure to review any alternative sites for the development of a proposed hotel, had not satisfied the requirement of the California Environmental Quality Act that an EIR present “information sufficient to permit a reasonable choice of alternatives so far as environmental aspects are concerned” (quoting from the Residents Ad Hoc case). It was not enough to look at a reduced-scale alternative on the same site, and it did not matter that other prospective sites were not (and perhaps could not be) owned by the hotel developer, for, in the eyes of the Court, “serving the public purpose at minimal environmental expense is the goal of CEQA.”

While the goals and language noted above seem imminently reasonable, the Goleta Court failed to properly facilitate reaching these objectives by providing some definition of the nature and range of alternative sites to be considered. The Court simply announced that there should be no “inflexible rule” that such sites always or never be considered and that it was “necessary to examine the particular situation presented” to determine whether other feasible sites must be reviewed. So much for guidance.

Just that suddenly, the quiet little world of CEQA alternatives was shaken! Developers and environmental consultants, fearing the specter of legal challenge by project opponents if they did not adhere to a broad reading of Goleta, crowded EIR alternatives sections with numerous “strawman” sites which presented some semblance of feasibility while providing sufficient reason to be rejected at project approval time.

No sooner had project participants (of all stripes) reached this first level of “over­kill” in response to Goleta, then along came the California Supreme Court in Laurel Heights to add more fuel to the fire. In Laurel Heights, the University of California had stated in cursory terms in an EIR that there were no feasible alternative sites for construction of a proposed biomedical research facility in the San Francisco area. The Court, citing the need for fostering informed public discussion of alternatives, held that when a project proponent concludes that an apparently feasible location is infeasible, and hence requires no complete discussion as an alternative, it must disclose the facts relied upon and the method of analysis used to determine the infeasibility. Attempting to provide further guidance, the Justices stated in their holding that “as with the range of alternatives that must be discussed, the level of analysis is subject to the rule of reason."

Though this ruling appears sensible on its face, and should have been seen as tempering the impact of Goleta, most observers (developer and agency alike) took it to mean that even more site options should be investigated in project EIRs, thereby further propelling the swing from famine to feast in the review of project alternatives.

Late last year we were presented with Goleta II, which promised to be a way out of the alternative site maze. Instead, this decision has provided as much confusion as it has clarification. To those who were timid in the face of Goleta I and Laurel Heights, Goleta II has created even more uncertainty by further expanding the possible universe of alternative locations that must be discussed in an EIR. So vague are this decision’s standards, especially to the conservative reader, that it is hard to know whether an EIR has complied with the holding of the case.

In an apparent attempt to delineate and clarify, the Court of Goleta II divided potential alternative locations into three categories. The first category consists of “patently infeasible” locations that may be eliminated by common sense or in the scoping process. The second is “ostensibly feasible” sites which are determined upon initial analysis to be “remote and speculative”" and, as in Laurel Heights, require a minimal discussion in the EIR of the facts and logic used to make such a determination. The final category is “apparently feasible” alternatives that require a more thorough analysis in the EIR.

The problem is that Goleta Il provides only vague statements to guide your choice of category into which a potential alternative site should be placed. The message seems to be that sites that one would not have considered before under a “reasonableness” standard are now fair game. Arguably, sites that render a project economically inviable must be examined, but to what extent? Sites that would require a zone change or plan amendment in the face of likely political or community opposition must be considered. Sites located in another jurisdiction (but how far away?) must be studied. Sites that do not meet some of the basic objectives of the project must be discussed. The questions are how much is enough and why are we doing this?

This language opens Pandora’s Box wider by apparently mandating discussion of alternative project locations that may be by any standard inherently unreasonable; and the absence of specific standards or ex­amples of application makes it difficult to properly categorize sites. How is one to know after reading Goleta II that a site is patently infeasible and need not be discussed at all?

Furthermore, which alternative locations will require a minimal discussion and which will require a more thorough analysis? To achieve some level of certainty such that an EIR will be legally adequate, a few proponents of major projects have hired a veritable army of consultants to produce detailed analyses of an array of sites, many of which are facially infeasible to support the project proposed. And almost everyone involved knows it!

Fortunately, relief may be in sight. On March 22 of this year, the California Supreme Court agreed to review Goleta II. Hopefully, the Court will set forth a much more objective site of standards to provide guidance to those who work with CEQA.

While we wait for the Court to speak, however, and even after areas of uncertainty have to some extent been clarified, we who labor under the project-review mantle of CEQA should collectively push for a return to a more meaningful “reasonableness” standard, so that public policy objectives of CEQA can be met efficiently and effectively. (Obviously, not just in the alternatives arena, but I’ll leave the rest for another day.)

Let’s face it, the current situation is cumbersome and counterproductive. Due to the uncertainty of what are viable alternative sites, or how many sites will be enough, project proponents must cast about for all manner of alternative in the absence of appropriate rules or guidelines. Further, planning officials who must oversee the preparation of EIRs are left without useful standards by which to review the discussion of alternative project locations. Project consultants who must advise their clients are similarly restrained by doubt.

In the last two years, project proponents have attempted to resolve this dilemma by spending more money and time to thoroughly analyze virtually every potential alternative project location. If there were much clearer standards with respect to such analysis, a far more relevant and meaningful presentation of the few, if any, legitimate alternative sites for a given project could be included in an EIR, thereby saving the system from an unnecessary expenditure of time and money.

The tools with which to fashion a return to sanity are at our disposal. Under CEQA and the State CEQA Guidelines, the scope of alternative site analysis is to be “reasonable,” and the guidelines provide clear language (much of which was endorsed by the cases I’ve noted) for sensible decision-making. We shouldn’t have to waste time with some optional site that simply would not be used for a given project. Furthermore, public agency reviewers of EIRs have broad discretion regarding what constitutes a sufficient alternatives analysis.

In summary, we should not lose site of power of reason and sensibility as we grapple with the task of alternate site analysis, and as we wait for the divine intervention of the high court.