On Friday an Alameda County Superior Court judge ordered the City of Oakland to undo its approval of the controversial Oak-to-Ninth Project. The City Council approved the project in the summer of last year.
The court’s action was prompted by a pair of environmental lawsuits by local activist groups that challenged the sufficiency of the project’s Environmental Impact Report (EIR). One lawsuit was filed by the Coalition of Activists for Lake Merritt (CALM) and Joyce Roy and was also supported by the Sierra Club and the League of Women Voters of Oakland. The second was filed by the Oakland Heritage Alliance (OHA).
While not agreeing with these petitioners in all respects, Judge Jo-Lynne Q. Lee ruled that the City’s EIR for the project was deficient in several ways and that this was fatal to its validity.
The Oak-to-Ninth Project would develop a 64-acre site along Oakland’s Inner Harbor between Oak Street and Ninth Avenue. The Port of Oakland, which currently owns the land, would sell it to the developers Oakland Harbor Partners, a joint venture primarily composed of Signature Properties. For more information about the project, see the Guardian’s earlier coverage:
- The League of Women Voters of Oakland’s “Why we support the Oak-to-Ninth referendum,” 9/1/06
- “Co-coordinator of Benefits Coalition rebuts Hutchinson’s Oak-to-Ninth article,” 9/3/06
- “City Attorney Russo ‘invalidates’ Oak-to-Ninth referendum petition,” 9/6/06
- “Oak to Ninth Referendum Coalition charges ‘serious violations of the City Charter’,” 9/12/06
- “Proposal submitted to develop Ninth Avenue Terminal,” 3/18/07
- “Quagmire on the Estuary,” 7/22/07
The lawsuits were brought under the California Environmental Quality Act (CEQA), which has a basic goal “to develop and maintain a high-quality environment now and in the future.” CEQA requires an environmental-review process for any proposed project that requires approval by State and local government agencies.
CEQA requires an Environmental Impact Report if an initial study determines that the project will have “significant” environmental impacts. The purpose of the EIR is to provide government agencies and the public with detailed information on the potentially significant environmental effects which a proposed project is likely to have, as well as to identify ways that these effects might be minimized and alternatives to the project as proposed.
In reviewing an EIR,
… a paramount consideration is the right of the public to be informed in such a way that it can intelligently weigh the environmental consequences of any contemplated action and have an appropriate voice in the formulation of any decision. (Environmental Planning and Information Council v. County of El Dorado)
So the sufficiency of an EIR is all about the quality of its disclosure, not about how good or bad, environmentally speaking, the project is. If a project were horrendous, the EIR could still be fine as long as it accurately identified and characterized the impacts, how they could be minimized, and the alternatives. An EIR for a relatively benign project could still be rejected if it failed to identify or properly analyze a potential impact.
Judge Lee’s ruling that the City’s EIR was deficient wasn’t a ruling about the environmental impacts of the proposed Oak-to-Ninth project; rather it was a ruling that the EIR didn’t accurately and fully disclose those impacts.
Because the EIR is supposed to help local governments and the public evaluate a proposed project, the deficiencies in the EIR became a reason for the judge to order the City to undo its earlier approval of the project. In other words, the original approval by the City was based on an incomplete or inaccurate view of the environmental risks.
One recurring theme in Judge Lee’s opinion (pdf, 2MB) is that the City failed to properly analyze the cumulative impacts of the proposed project—that the City looked in isolation at the incremental impacts of the project without assessing those impacts in the context of all the environmental impacts from past, current, and foreseeable future projects.
The hazards of not looking at the bigger picture were expressed in a landmark CEQA case, Kings County Farm Bureau v. City of Hanford:
One of the most important environmental lessons evident from past experience is that environmental damage often occurs incrementally from a variety of small sources. These sources appear insignificant, assuming threatening dimensions only when considered in light of the other sources with which they interact. Perhaps the best example is air pollution, where thousands of relatively small sources of pollution cause a serious environmental health problem. [In another case] the court stated that absent meaningful cumulative analysis, there would never be any awareness or control over the speed and manner of downtown development. Without that control, “piecemeal development would inevitably cause havoc in virtually every aspect of the urban environment.”
In particular, Judge Lee found that the City’s EIR didn’t analyze the cumulative impacts from the project relating to land use, population, and housing, traffic and noise from traffic, geology and seismicity, hazardous materials, biological resources, visual quality, public service and recreation facilities, and utilities.
Judge Lee also found that the City’s EIR failed to sufficiently analyze the seismic risks of the project. The EIR does acknowledge that the project would increase population and development in an area at risk of at least one major earthquake over the next 30 years, and that both ground shaking and liquefaction are problems at the site. The EIR even discusses “mitigations” to reduce the hazard to “less than significant” status. However, the court found that all this talk was just a bunch of hand waving. She found that “the EIR contains no meaningful analysis to support these findings [that mitigations would sufficiently reduce the risks] and they are not supported by substantial evidence in the record.”
In her order, Judge Lee ordered the City of Oakland to void its certification of the EIR, CEQA Findings, Statement of Overriding Considerations, and its approval of the project. The matter now goes back to the City for further action. Judge Lee’s court will retain jurisdiction over this matter until she determines that the City has complied with the provisions of CEQA.