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Late Objections Doom Opposition To Lab Expansion

A state appellate court has upheld the environmental impact report for expansion of the Lawrence Berkeley National Laboratory. It found that project opponents had forfeited most of their claims because they had failed to raise them at the administrative level. The court also ruled that the range of project alternatives that the lab considered, within a carefully articulated range of project objectives, was adequate. The Lawrence Berkeley National Laboratory (LBNL) is a federal lab operated by the University of California, Berkeley. The laboratory's primary facility is located in the hills above the UC Berkeley campus, although LBNL occupies some on-campus space and leases offsite facilities in the surrounding cities of Berkeley, Oakland, and Walnut Creek. In January 2007, the University of California regents published a draft environmental impact report (EIR) for a long-range development plan for LBNL's primary facility. The EIR was prepared as a program-level document, describing the likely improvements to the site through the year 2025. The long-range development plan called for adding 600,000 square feet of new space, taking on additional employees, providing more parking, and developing a campus-like setting "fostering interaction and informal encounters among lab staff." The EIR addressed five alternatives: no project, two reduced growth alternatives, a preservation alternative with non-LBNL use of historic resources, and a partial offsite alternative. After the regents approved the long-range development plan and certified the EIR, project opponents filed a California Environmental Quality Act (CEQA) challenge. The Alameda County Superior Court ruled for the petitioners with respect to an argument that the final EIR should have been recirculated because new information had been raised for the first time in the EIR's responses to comments and therefore was not fully considered. Otherwise, the court ruled for the University of California regents. Both sides appealed, and the First District Court of Appeal ruled for the university regents. The appellate court first addressed the project opponents' two appellate arguments: 1) the EIR contained an insufficient range of project alternatives; and 2) the university failed to consider numerical benchmarks and standards pertaining to water quality. The appellate court relied upon the university's articulation of six objectives and underlying purposes of the project that were, to some degree, specific to the existing LBNL site. In response to the argument that the EIR was required to consider a true offsite alternative, the appellate court concluded that the range of alternatives was sufficient and the EIR was "not required to consider every conceivable alternative." The court went on to observe that a true offsite alternative would not meet the lead agency's primary objective of creating a campus-like setting, "and would nullify most, if not all, of the other project objectives as well." To the extent the opponents were now challenging the framing of project objectives, the court found the effort to be too little, too late because the opponents had not contested the objectives administratively or in the trial court. The court also found that more than sufficient evidence supported the EIR's conclusion that the offsite alternative would not meet project objectives because it would separate the very staff members whose interaction the project was intended to foster. The appellate court rejected the project opponents' remaining claims because of the opponents' failure to exhaust administrative remedies. As to the opponents' argument regarding numerical benchmarks and standards pertaining to water quality, the court found the opponents' general identification of water quality impacts in their comments on the EIR was insufficient to preserve for judicial review the more specific issue of water quality benchmarks. The court also agreed with the regents that the petitioner had not exhausted its administrative remedies regarding EIR recirculation. Opponents had argued the regents should have recirculated the document because the final EIR contained new information with respect to greenhouse gas emissions. However, the court determined the opponents had the opportunity � prior to certification of the EIR � to bring this matter to the regents' attention but failed to do so. That failure barred the claim, and the appellate court reversed the trial court on this issue. The Case: Jones v. The Regents of the University of California, No. A123948, 2010 DJDAR 5244. Filed March 12, 2010. Ordered published April 7, 2010. The Lawyers: For Jones: Michael Lozeau, (510) 749-9102. For the regents: Michael Zischke, Cox, Castle & Nicholson, (415) 262-5109.

-- William W. Abbott

 
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