The Second Appellate District tackled several technical but important legal considerations in Ballona Wetlands Land Trust v. City of Los Angeles, including that of whether a lead agency must analyze the impact of the environment on the project. 

This case involves the aftermath of an earlier court decision finding the environmental impact report for the massive Playa Vista infill project on the west side of Los Angeles to be deficient. That decision directed the City of Los Angeles to vacate the approvals and correct certain EIR deficiencies. Consistent with the court's earlier ruling, the city and developer went back to work on a revised EIR. 

As a result of amendments to the CEQA Guidelines, the new EIR included an analysis of greenhouse gas emissions. Upon completion of that EIR, and the City Council re-approved the project, with mitigation measures. The Ballona Wetlands Trust, an environmental group dedicated to preserving a creek and wetlands area on the Playa Vista property, filed an opposition to the return to the writ, as well as a new petition. 

The trial court consolidated the two actions, denied the petition, then discharged the writ, following which the opponents appealed. The issues on appeal included sufficiency of analysis and disclosure of archaeological resources and mitigation, sufficiency of analysis of GHG as it related to coastal flooding; and whether the opponents could renew a challenge to the project description.

With respect to archaeological resources, the appellate court acknowledged the CEQA rules that prioritize preservation in place as the preferred means of mitigating impacts to archaeological resources (Guidelines Section 15126.4). The first EIR identified two sites, and disclosed that a riparian corridor could not be constructed in a manner which avoided impacts to archeological resources. (The first EIR included the only feasible mitigation was data recovery.) In the first EIR lawsuit, the appellate court rejected this approach, saying that the analysis rejecting preservation in place was insufficient. In the second EIR, the lead agency provided additional discussion of preservation in place, as well as other potential mitigation strategies. This time around, the appellate court upheld the analysis as satisfying CEQA. 

Turning to climate change, the appellate court considered the argument that the EIR was required to address sea level rise impacts on the project, as well as the project's contribution to sea level rise on surrounding areas. The appellate court, suggesting that Guidelines section 15126.2(a) overstepped the statute, rejected the argument that the EIR was required to study the impact of the environment on the project, citing earlier decisions reaching similar conclusions, including City of Long Beach v. Los Angeles Unified School District (2009) (see CP&DR Legal Digest Vol. 24, No. 11, Sept. 2009 http://www.cp-dr.com/articles/node-2413) and South Orange County Wastewater Authority v. City of Dana Point (2011) (see CP&DR Legal Digest Vol. 26, No. 22, Nov. 2011 http://www.cp-dr.com/articles/node-3068). 

Applying the substantial evidence test, the appellate court noted that there was a dispute in the record over the potential impact of global sea level rise on the project. But as there is adequate, competent evidence in the record to support the lead agency's conclusion that the project site would not be inundated by sea rise, the EIR satisfied its disclosure obligation. The opponents also sought to challenge the project description. However, this challenge went beyond the scope of the judgment in the first action, and the trial court's jurisdiction is limited to insuring compliance with the terms of writ.

The Case: 

Ballona Wetlands Land Trust v. City of Los Angeles  (2011) ___ Cal.App.4th ___, filed Nov. 9, 2011, case No. B231965. 

The Attorneys: 

Venskus & Associates, Sabrina Venskus and Emilee Moeller for Plaintiffs and Appellants Ballona Wetlands Land Trust, Anthony Morales and Surfrider Foundation.

Law Office of Brian Acree and Brian Acree for Plaintiff and Appellant Ballona Ecosystem Education Project.

Carmen A. Trutanich, City Attorney, and Siegmund Shyu, Deputy City Attorney, for Defendant and Respondent.

Alston & Bird, Edward J. Casey, Robert D. Pontelle and Neal P. Maguire for Real Party in Interest and Respondent.

William W. Abbott is a partner in the Sacramento law firm of Abbott & Kindermann, LLP. www.aklandlaw.com.