Fbc.opening Brief.final

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LAW OFFICES OF STUART M. FLASHMAN STUART M. FLASHMAN (SBN 148396) 5626 Ocean View Drive Oakland, CA 94618-1533 TEL/FAX (510) 652-5373 e-mail: [email protected]

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ROSSMANN AND MOORE, LLP ANTONIO ROSSMANN (SBN 51471) ROGER B. MOORE (SBN 159992) JENNIFER L. SEIDENBERG (SBN 253156) 380 Hayes Street, Suite One San Francisco, CA 94102 TEL (415) 861-1401 FAX (415) 861-1822 e-mail: [email protected]

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Attorneys for Petitioner and Plaintiff

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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

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IN AND FOR THE COUNTY OF ALAMEDA

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CALDECOTT TUNNEL FOURTH BORE No. RG-07355832 COALITION,

Filed 11/13/07

Petitioner and Plaintiff, Assigned for all purposes to Judge Frank Roesch, Department 31 vs.

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CALIFORNIA DEPARTMENT TRANSPORTATION et al., Respondents and Defendants

PETITIONER’S OPENING BRIEF IN OF SUPPORT OF MOTION FOR PEREMPTORY WRIT OF MANDATE AND JUDGMENT ON THE WRIT.

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Date: October 31, 2008 Time: 9:00 AM Department: 33 Judge: Hon. Frank Roesch

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TABLE OF CONTENTS

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INTRODUCTION.………………………………..……………………… ............................…1

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STATEMENT OF FACTS………………………………………………………………………..2 I.

THE PROJECT……………… …………………………………………..................2

II.

PROJECT HISTORY…………………………… …………………........................3

6 7 8 9 10

ARGUMENT…………………………………… ……………………………………...............5

I.

CALTRANS FAILED TO PREPARE AN ADEQUATE EIR ………………………5

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A. THE PROJECT DEFINITION’S CONFINEMENT TO A FOURTH BORE IMPROPERLY TRUNCATED THE PROJECT PURPOSE OF IMPROVING CORRIDOR MOBILITY, THEREBY ALSO IMPROPERLY NARROWING THE SCOPE OF ALTERNATIVES THAT COULD BE CONSIDERED………5

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B. THE EA/EIR IMPROPERLY CONFINED ITS ASSESSMENT OF PROJECT

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IMPACTS TO THOSE OCCURING IN THE PROJECT CONSTRUCTION LIMITS……………………………………………………………………………6

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C. THE EA/EIR FAILED TO CONSIDER A REASONABLE RANGE OF PROJECT ALTERNATIVES……………………………………………………..7

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D. THE EA/EIR FAILED TO PROPERLY IDENTIFY, ANALYZE, OR MITIGATE THE PROJECT’S POTENTIALLY SIGNIFICANT IMPACTS.....10

1. The EIR/EA Failed to Properly Identify, Analyze, or Mitigate the Project’s Significant Traffic Impacts…………………………………..10

a. The EA/EIR’s Traffic Analysis Failed to Properly Consider “Induced Demand”……………………………………………….10 b. The EA/EIR Failed to Properly Address Significant Surface Street Impacts on Motorists, Bicyclists and Pedestrians……….…………...14

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c. The EA/EIR Improperly Concluded that There Would be No Significant Weekend Traffic Impacts from the Project…………..….17

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2. The EA/EIR Failed to Properly Analyze and Mitigate to Project’s Significant Growth-Inducing Impact…………………………………..18

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3. The EA/EIR Failed to Properly Consider and Mitigate the Project’s 5

Significant Operational Noise Impacts………………….......................20

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a. The EA/EIR Used an Improper and Arbitrary Threshold for

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Significant Noise Impacts………………………………………..21

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b. The

EA/EIR Significantly Underestimated the Project’s Operational Noise Impacts……………………………..…………………….24

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4. The EA/EIR Improperly Refused To Analyze And Mitigate The 12

Project’s Direct, Indirect, And Cumulative Contributions To Climate Change………………………………………………….……………...24

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5. The

EA/EIR Failed To Analyze The Project’s Cumulative Impacts……………………………………………………………...….27

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a. Overview………………………………………………………....27

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b. The EA/EIR failed to assess the cumulative impacts of the project

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in combination with the impacts of past projects……………… .28

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c. Caltrans cannot avoid analysis of the cumulative impacts of the

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proposed project and past projects by reference to baseline data…………………………………………………..…………...31

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II.

CALTRANS IMPROPERLY FAILED TO RECIRCULATE THE FINAL EA/EIR AFTER NEW INFORMATION DISCLOSED SIGNIFICANTLY INCREASED IMPACTS, AS WELL AS MITIGATION MEASURES AND ALTERNATIVES TO AVOID IMPACTS THAT CALTRANS REFUSED TO IMPLEMENT………...…32

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A. THE FINAL EA/EIR DISCLOSED NEW INFORMATION INDICATING NEW AND SUBSTANTIALLY INCREASED SIGNIFICANT IMPACTS………….33

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B. THE FINAL EIR INCLUDED NEW FEASIBLE ALTERNATIVES AND MITIGATION MEASURES WHICH CALTRANS DECLINED TO ADOPT, AND ON WHICH THE PUBLIC WAS NOT ALLOWED TO COMMENT…..34

4 CONCLUSION…………………………………………………………………………………..35 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE IV

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1

TABLE OF AUTHORITIES

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CASES

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Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (2008) 43 Cal.4th 1143………………………………………………………………....5, 8 Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissioners (2001) 91 Cal. App. 4th 1344……………………………………………………………26 Center for Biological Diversity v. National Highway Traffic Safety Administration, (9th Cir. 2008) 2008 U.S. App. LEXIS 17629 ………………………………………….27

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Central Delta Water Agency v. State Water Resources Control Board (2004) 124 Cal.App.4th 245………………………………………………………………7

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Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal. App. 3d 433…………………………………………………………….10

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Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553......................................5

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Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal. App. 3d 421………………32 City of Antioch v. Pittsburg City Council (1986) 187 Cal.App.3d 325……………………….…18

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Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348………………… …………….….16 Communities for a Better Environment v. Resources Agency (2002) 103 Cal.App.4th 98…………………………………………………..26, 27, 28, 29

18 County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185………………… …………...5 19 20 21

Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692… ………27, 28, 29 Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112………………………………………………………………..32, 34

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Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019…………………………………………………23, 24, 29, 31 Massachusetts v. Environmental Protection Agency (2007) 127 S. Ct. 1438…………………...25

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Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099…………………………………………………..……21, 22

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STATUTES AND ORDINANCES HEALTH AND SAFETY CODE

3 Section 38501…………………………..……………………………………………………...25 4 5

Section 43018.5……………………...………………………………………………..……….26

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Public Resources Code

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Section 21000…………………………………………………...………………………………1

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Section 21002………………………………………………...…………………………………7

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Section 21061………………………………..……………………………...……………...…...7

10 Section 21083(b)(2)………………………………………………………...…...…………...27, 28 11 12

Section 21081(a)(2)…………………………………………..……………………..………...…10

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Section 21084.1……………… …………………………………………………………...…….7

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Section 21100(b)(4)………………………………………………………………………...……..7

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Section 21100(b) (5)……………………………………………………………………..………19

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STREETS AND HIGHWAY CODE

17 Section 30914.............................................................................................................................7 18 19

Senate Bill 97 (Stats. 2007, ch. 185)……………………………………………………………..25

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OAKLAND PLANNING CODE

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Section 17.01.100……………………………...………………………………………………20

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Section 17.28.120………………………………...……………………………………………20

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REGULATIONS AND ORDERS

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CALIFORNIA CODE OF REGULATIONS, TITLE 14 CEQA GUIDELINES

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Section 15000 et seq……………………………….………………………………….…………..5

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Section 15064(h)(1)……………………………………………………………………………...28

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Section 15064.7…………………... …………………………………………………………...22 Section 15065(a)(3)……………………………………………………………………………...28

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Section 15124(b).........................................................................................................................5

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Section 15126.2(d)……………………………………………………………………………….19

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Section 15126.6(a)………………………………………………………………………………...8

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Section 5130(a)(2)…………………………………………………...……................................32

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Section 15130(b)(1)(B)…………………………………………………………………………..32 Section 5130(d)……………………………………………………………................................32

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Section 5130(e)……………………………………………………………................................32

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Section 15132…………………………………………………………………………………….12

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Section 15145……………………………………………………………...………… ………..26

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Section 15355(b)…………………………………………………….…………………………...29

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Section 15362…………………………………………………………………………………….12

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Executive Order S-3-05 (June 1, 2005)………………………………………………………….25 18 19

OTHER AUTHORITY

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Cervero, R., Road Expansion, Urban Growth and Induced Demand (2003) APA Journal 69….13

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Dutzig, T., More Roads, More Traffic (2002) Maryland PIRG Foundation…………………….13

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Gauderman, W.J., et al., Effect of exposure to traffic on lung development from 10 to 18 years of age: a cohort study (2007) 369 LANCET 571……………………………………………30

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Hartgen, D., Highways and Sprawl in North Carolina (2003) Report for John Locke Foundation………………………………………………………………………..14

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Maugh, T., Freeways' tainted air harms children's lungs, experts say, Los Angeles Times (Jan. 26, 2007) p. B-1…………………………………… ………………………….....31 Mokhtarian P., et al., Revisiting the Notion of Induced Traffic through a Matched-Pairs Study (2002) Transportation 29………………………………………………………………...14 PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE VII

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Noland, R. B., Relationship between highway capacity and induced vehicle travel (2001) Transportation Research Part A 35………………………………………………13 OPR Technical Advisory, CEQA and Climate Change: Addressing Climate Change through CEQA Review (June 19, 2008)…………………… ………………………………...…………25

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Owen, D., Climate Change and Environmental Assessment Law (2008) 33 COLUMBIA J. ENVIR. LAW 57…….……………………………...…………....25 Remy et al., GUIDE TO CEQA (11th ed. 2007)……………………………………………..........11

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Selmi, D., The Judicial Development of the California Environmental Quality Act (1984) 18 U.C. DAVIS L. REV. 197……………………………………………………....29

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INTRODUCTION

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This case is about “tunnel vision”, both figuratively and literally.

Respondent and

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Defendant California Department of Transportation (hereinafter, “Caltrans”) approved the

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Caldecott Improvement Project (hereinafter, “Project”), a proposal to construct a fourth bore for

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the Caldecott Tunnel on State Route 24 (hereinafter, “SR24”) through the Oakland Hills between

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Oakland in Alameda County and Walnut Creek in Contra Costa County. Caltrans’ stated project purpose was to improve mobility in that major travel corridor. The California Environmental

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Quality Act (Public Resources Code §§ 21000 et seq.,1 hereinafter, “CEQA”) required Caltrans, prior to approval, to prepare and certify an Environmental Impact Report (“EIR”) to identify, analyze, and, if feasible, mitigate or avoid any significant project impacts on the environment.2 However, Caltrans did not properly fulfill its duties as required under CEQA.

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The Caltrans EA/EIR heavily relied upon a prior study of the SR24 corridor by the

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Metropolitan Transportation Commission (hereinafter, “MTC”). That study examined a number

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of alternative approaches to improving corridor mobility and identified an additional tunnel bore as the most effective. However, the study was not exhaustive and did not include environmental

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analysis under CEQA. (AR 9 2317.3) Despite the declared purpose of the corridor study to improve mobility in the SR24 corridor, the EA/EIR improperly narrowed the project purpose to

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eliminate non-tunnel options, leading to the EA/EIR’s failure to evaluate by CEQA standards

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either the other alternatives proposed in the MTC study or a hybrid of those alternatives.

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Instead, the Caltrans EA/EIR considered only two project alternatives: the chosen two-lane

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fourth bore and a three-lane tunnel configuration alternative4.

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All statutory references, unless otherwise noted, are to the Public Resources Code. In addition, because the Project required federal funds, a federal Environmental Assessment (“EA”) was prepared, making the combined document both an EA and EIR (hereinafter, “EA/EIR”). The Federal Highway Administration (“FHWA”) originally proposed preparation of an Environmental Impact Study (“EIS”). Later, at Caltrans’ recommendation, it only prepared an EA. (AR 13 3547.) 2

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Petitioners prepared the Administrative Record (hereinafter “AR”) using materials supplied by Caltrans. As certified by Caltrans, it consists of 118 volumes containing 33,617 pages. Following certification, Petitioner identified additional materials that were erroneously not included in the certified record. The parties have stipulated to include those documents as an addendum to the record. Cites to the record will be in the form: “AR NN aaa-bbb”, where NN is the volume number and aaa and bbb the beginning and ending pages for the cited material. 4 In addition, Caltrans was required to include a “no project” alternative. PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 1

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The EA/EIR improperly masked the extent and significance of the Project’s

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environmental impacts, and failed to analyze the cumulative impact of the fourth bore together 2

with other previously-unassessed transportation projects in the SR24 corridor. When citizens,

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organizations, and other government agencies submitted comments pointing out problems with

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the EIR, Caltrans failed to adequately respond to those comments; because to do so would have

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exposed the shortcomings of its analysis. As one example, Caltrans declined to analyze the

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project’s greenhouse gas footprint and contribution to climate change, based upon the erroneous

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premise that this assessment was beyond the EA/EIR’s scope.

Finally, when Caltrans’

responses to comments and additional studies included in the Final EA/EIR disclosed new information indicating impacts beyond those disclosed in the Draft EA/EIR, Caltrans failed to

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recirculate the revised document, again violating CEQA.

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Petitioner agrees with Caltrans that improving mobility along the SR24 corridor would

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provide a valid and worthwhile project purpose. However, neither petitioner nor the larger

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public can accept a project approval that sweeps significant project impacts under the rug, and an

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environmental document that impermissibly truncates the project purpose and thereby excludes

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evaluation of alternatives that could satisfy and even enhance fulfillment of the project purpose while producing fewer environmental impacts. Caltrans’ actions here violate the cornerstone purpose of CEQA to inform decision-makers and the public prior to project approval. For that

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reason, Petitioner respectfully requests that the Court grant its petition, set aside Caltrans’ approvals, and remand the Project for Caltrans’ reconsideration in accordance with CEQA.

18 STATEMENT OF FACTS 19 20

I.

THE PROJECT The stated purpose of the Caldecott Improvement Project is to improve mobility in the

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SR 24 corridor between I-680 on the east and I-580/I-980 on the west. (AR 13 3492, 3536.) The

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central element of Caltrans’ tautologically-defined project would add a fourth bore to the

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existing three bores of the Caldecott Tunnel, a highway tunnel on SR 24 between North Oakland

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on the west and Orinda on the East. (AR 13 3534.) Currently, the tunnel’s three bores operate

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with the southern bore dedicated to eastbound traffic and the northern bore, to westbound traffic. The third, central, bore alternates between carrying eastbound and westbound traffic. During

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weekday mornings, when westbound commuter traffic predominates, the central bore carries westbound traffic. During weekend afternoons, when, conversely, eastbound commute traffic

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predominates, the central bore carries eastbound traffic. On weekends, the central bore switches between carrying eastbound and westbound traffic, depending on which direction the majority of

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traffic is heading. In this way, the tunnel’s operation maximizes efficient use of the tunnel’s

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present capacity. (AR 13 3535.) Even so, as currently configured the tunnel cannot fully

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accommodate current traffic demand. (AR 13 3537.)

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Despite the tunnel’s dedication of two bores to the primary commute direction

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(westbound in the morning, eastbound in the evening) traffic backs up on the east side of the

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tunnel in the morning, and on the west side in the evening. In the “reverse-commute” direction (eastbound in the morning, westbound in the evening), the one dedicated bore is also insufficient to handle the traffic demand; so traffic currently backs up on both sides of the tunnel, although

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the backup in the primary commute direction is considerably longer. (AR 13 3537-3538.)

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The Project does not even propose to reduce the back-ups in the primary commute

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direction.5 Rather, the project proposes to add one additional bore north of the existing bores.

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That bore, along with the existing north-most bore, would always handle westbound traffic. The

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two more southerly bores would then both be dedicated to eastbound traffic. The Project would

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add one bore in the non-commute direction, roughly doubling the tunnel’s capacity to handle the non-commute direction traffic, and eliminating any switching of direction for any bore. (AR 13 3539.)

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In addition to adding a new northern bore to the tunnel, the Project would make minor

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changes to the tunnel’s circulation pattern. (AR 13 3549.) It would also add a new operations

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and maintenance building to the complex of buildings directly above the tunnel at its western

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end. (AR 13 3548.) All of these project components were included in the EIR for the Project. The Project does not propose to address, or even assess, a vital component of the SR 24

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corridor: the Bay Area Rapid Transit (BART) line that exactly parallels and for the most part forms the centerline of the highway alignment. II.

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PROJECT HISTORY The history of the Project began in 1998 when the Metropolitan Transportation

Commission (“MTC”) initiated a study of the entire SR 24 corridor. (AR 13 3535.) That 25

preliminary study, without CEQA analysis, identified construction of a fourth bore as the

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In fact, the EA/EIR indicates that the Project will make congestion in the primary commute direction worse than it already is. (AR 10 2631; 13 3607, 3608.) PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 3

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optimal strategy for reducing congestion in the corridor. (Id.) In 2002, Caltrans followed up by initiating formal environmental review of a proposal to construct a fourth bore to the tunnel.

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(AR 13 3546.) Preliminary scoping for that study was completed in February 2003. (Id.)

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Meanwhile, political pressure to build the fourth bore mounted both in Contra Costa

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County and the Legislature. In 2004, the Legislature, led by representatives of Contra Costa

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County, placed before the voters of the Bay Area measure RM2, which raised tolls for Bay Area

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toll bridges by $1.00 for twenty years, with the money dedicated to a list of Bay Area

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transportation projects. (AR 13 3543, 3547; Streets and Highways Code §30914) The Caldecott Fourth Bore was one of those projects. (Id. at subd. (c)(36).) Also in 2004, the Contra Costa County Transportation Authority placed on the ballot in that county a 25 year ½ percent county

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sales tax, with constructing the fourth bore constituting the largest single construction project

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funded by the measure. (AR 13 3543; Petitioner’s Request for Judicial Notice (“RJN”) ¶3 and

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Exhibit D.)

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partially fund, but do not require, the tunnel bore construction.6 (AR 13 3567-3568.) In May 2006, Caltrans released the Draft EA/EIR. The document circulated for a two

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Almost half of the Project’s funding comes from these two measures, which

month comment period.7 During that time, Caltrans held two public hearings to receive oral comments. (AR13 3492.) In August 2007, Caltrans and the Federal Highway Administration purported to publish the Final EA/EIR, consisting of two volumes. Volume One was a revised

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EA/EIR. Volume Two contained comments received on the DEA/EIR and Caltrans’ responses

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to those comments. However, the document was not released to the public until September 13,

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2007. (AR 20 5396.) Despite this, Caltrans gave approval for the Project through a Project

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Report and filed a Notice of Determination (“NOD”) a day earlier, on September 12, 2007.8 (AR

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1 5, 13.) Subsequently, Caltrans rescinded its approval and NOD, and instead approved the

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Project under a Supplemental Project Report on October 12, 2008. (AR 1 2, 6.) Caltrans

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Indeed, both measures specifically contemplate future CEQA review of the fourth bore proposal. 7 The comment period was extended for an additional time because of problems with e-mail communications. (AR 13 3492.) 8 FHWA had already approved a Finding of No Significant Impact on August 17, 2007. (AR 1 59.)

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submitted a new NOD that same day. (AR 1: 1.)9 Petitioner’s challenge was filed November 13, 2007.10

2 ARGUMENT 3 4

I.

CALTRANS FAILED TO PREPARE AN ADEQUATE EIR A.

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THE PROJECT DEFINITION’S CONFINEMENT TO A FOURTH BORE IMPROPERLY TRUNCATED THE PROJECT PURPOSE OF IMPROVING CORRIDOR MOBILITY, THEREBY ALSO IMPROPERLY NARROWING THE SCOPE OF ALTERNATIVES THAT COULD BE CONSIDERED.

As part of the project description, an EIR is to contain:

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A statement of objectives sought by the proposed project. A clearly written statement of objectives will help the lead agency develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings or a statement of overriding considerations, if necessary. The statement of objectives should include the underlying purpose of the project. (CEQA Guidelines11 § 15124(b) (emphasis added); In re Bay-Delta Programmatic Environmental Impact Report Coordinated Proceedings (“Bay-Delta”) (2008) 43 Cal.4th 1143, 1163.)

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The identification of the project objectives is crucial to the proper consideration and

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analysis of the project, especially, development of a reasonable range of alternatives to evaluate

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in the EIR. As stated in the seminal “project description” interpretation of County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 192-193:

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A curtailed or distorted project description may stultify the objective of the reporting process. Only through an accurate view of the project may affected outsiders and public decision-makers balance the proposals benefit against its environmental cost, consider mitigation measures, assess the advantages of terminating the proposal (i.e., the “no project” alternative) and weigh other alternatives in the balance.

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As will now be shown, the distorted project description (disloyal to the purpose and need 21 22

of improving corridor mobility) truncates both the assessment of impacts and consideration of meaningful alternatives.

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The NOD was not received by the State Clearing House until October 15th, although an annotation on the NOD indicates it was posted on the twelfth, three days earlier. (AR 1 1.) 10 Monday, November 12, 2007 was a state holiday, Veteran’s Day. 11 Calif. Code of Regulations, title 14, chapter 3, §§ 15000 et seq. The CEQA Guidelines are not statutory law, but are binding on all California public agencies. (CEQA Guidelines § 15000.) “[A]t a minimum, ... courts should afford great weight to the Guidelines except when a provision 9

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The Draft EA/EIR and Final EA/EIR contain an identical statement of purpose for the Project.

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That purpose, in six points, states that Caltrans (and the Federal Highway

Administration) are proposing a project that: • Reduces delays within the vicinity of the tunnels, through the year 2032; • Improves mobility for the traveling public and emergency crews; • Reduces the potential for congestion-related accidents at the queues that form at the tunnels’ approaches, thus increasing safety for the public and Caltrans maintenance personnel; • Eliminates the need for daily tunnel reversals and thus reduces the amount of time Caltrans maintenance personnel are exposed to live traffic; • Responds to Regional Measure 2 (RM2) passed by the San Francisco Bay Area voters, which raised tolls on the Bay Area's seven state-owned bridges from $2 to $4. The $125 million in annual revenue from that toll increase funds a wide variety of transportation projects across the region including $50 million for a forth bore at the Caldecott Tunnel; and • Responds to Contra Costa County Measure J, a half-cent transportation sales tax passed in November 2004 which funds a $2 billion spending plan. The Caldecott Tunnel project is programmed to receive $125 million of these funds. (AR 2 203.)

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Petitioner does not challenge the propriety of the first three of these six points as valid

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project objectives. Each serves what Guideline 15124(b) calls “the underlying purpose” against

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which alternatives are to be measured: as the EA/EIR itself states on its page 1, “the primary

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purpose of state transportation projects and programs is to increase mobility ….” (AR 13 3532.)

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In the remaining points standing alone, however, Caltrans has improperly produced a tautological “project description” that allows for definition as feasible for corridor mobility only the Caltrans-preferred option, the fourth bore in various forms, standing alone. The “fourth

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bore” tautology here is especially indefensible, in that the preference for a fourth bore option,

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including its appearance as a funded (but optional) element of the two tax measures, does not

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spring from a CEQA environmental assessment.

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THE EA/EIR IMPROPERLY CONFINED ITS ASSESSMENT OF PROJECT IMPACTS TO THOSE OCCURRING IN THE PROJECT CONSTRUCTION LIMITS.

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As stated on page 1 of the EA/EIR, the SR 24 corridor extends from I-580/I980 in

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Oakland to I-680 in Walnut Creek. The project purpose is to improve mobility in that corridor.

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B.

(AR 13 3532.) Nonetheless, because the “project limits” of construction extend only from the SR 24/13 intersection in Berkeley and Oakland, to the SR 24/Gateway Interchange in Orinda

is clearly unauthorized or erroneous under CEQA.” (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 564 fn.3.) PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 6

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(Id.; map at AR 1 6), the EA/EIR confined its assessment of noise impacts to sensitive receptors within these project limits (AR 14 3704-3705.) Similarly, historic-resource assessment also used

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the project limits to define the area of potential effects. (AR 13 3670.)

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When confronted with criticism of the EA/EIR’s exclusion of several Rockridge

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community schools, parks, and public facilities (“sensitive receptors”) from the noise and air

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quality analysis, Caltrans responded as follows:

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Noise abatements are considered only at locations where noise impacts are identified within the project study areas boundaries. The two BART stations referenced [Rockridge and MacArthur] are outside of the project study area boundaries and no school within the project study areas boundaries met the noise abatement criteria. Caltrans has no program to provide noise abatements for areas currently subject to freeway traffic noise, or where there is no new freeway construction or reconstruction of an existing freeway. ¶ In regards to air pollution, the Preferred Alternative … is included in the 2007 Transportation Improvement Program (TIP) (which conforms to the State Implementation Plan (SIP) …. The SIP is designed to be protective of human health. (AR 11 3307.)

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Even worse, in its general response to comments, Caltrans attempts to explain its

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decision to exclude specific sensitive receptors identified by the community, while including

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traffic operations analysis for the entire length of SR 24 corridor. (AR 10 2621-2623.) The

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consequence, as described in more detail below, excludes entirely the noise and air quality

6 7 8 9 10

16 17

impact of project-generated traffic on the Claremont Middle School and Chabot Elementary School – both of which are immediately adjacent to SR 24 – as well as the community FROG Park. Similarly, Caltrans ignores the “constructive use” of California-Register-eligible historic

18 19

resources (such as the 1927 Chabot Elementary School (RJN, ¶ 2 and Exhibit C; see Pub. Res. Code, 21084.1)) outside the project limits.

20

As explained in Central Delta Water Agency v. State Water Resources Control Board

21

(2004) 124 Cal.App.4th 245, CEQA requires the EIR to evaluate all foreseeable project impacts.

22

The State Board there attempted to avoid full impact analysis by excluding impacts in places of

23 24

use vastly distant from the place of diversion. 12 Here, Caltrans has attempted to avoid analysis of impacts not all that distant from the place of construction, but of vastly greater significance than construction impacts. As described below, the present EA/EIR evades impacts with potentially

25 26 27 28

12

Caltrans’ improper failure to fix and assess the locations at which it will deposit the spoils of tunnel construction (AR 11 3051) exactly conforms to the State Board’s CEQA error in Central Delta. PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 7

29 30

1

life-long health consequences for children attending the two public schools immediately bordering SR-24, and noise impacts on thousands of patrons at the Rockridge and MacArthur

2

BART Stations.

3

C.

4

An EIR must include consideration and analysis of project alternatives. (§§ 21002,

5 6

THE EA/EIR FAILED TO CONSIDER A REASONABLE RANGE OF PROJECT ALTERNATIVES

21061, 21100(b)(4).) “The EIR is the heart of CEQA, and the mitigation and alternatives discussion forms the core of the EIR.” (Bay-Delta, supra, 43 Cal.4th at p.1162.) While CEQA

7

does not precisely define what range of alternatives must be considered and analyzed,

8

The CEQA Guidelines state that an EIR must “describe a range of reasonable alternatives to the project . . . which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project . . . .” (Cal. Code Regs., tit. 14, § 15126.6, subd. (a).) (Id.)

9 10 11

In determining the EIR’s range of alternatives, the lead agency must follow the “rule of 12

reason.”

13

15

The rule of reason “requires the EIR to set forth only those alternatives necessary to permit a reasoned choice” and to “examine in detail only the ones that the lead agency determines could feasibly attain most of the basic objectives of the project.” (Id.)

16

In preparing and certifying the EA/EIR, Caltrans purported to be guided by these

17

principles (AR 10 2599); however the Draft (and Final) EA/EIR only provided detailed analysis

14

18 19

of one alternative other than the statutorily-required no-project alternative: a fourth bore containing three lanes rather than two. (Id.; AR 13 3551.) While the EA/EIR briefly considered a variety of other project alternatives, it summarily dismissed them as either infeasible or unable to

20

meet the Project’s objectives. (Id.; AR 13 3558-3565.)13

21

Petitioner and others, in their comments on the Draft EA/EIR, identified a number of

22

additional project alternatives that merited consideration. One major alternative restricts access

23

to some of the added tunnel capacity, and portions of the tunnel approach lanes, to high

24 25 26 27 28

13

Even as early as 2004, Caltrans had already largely restricted its consideration of alternatives to deciding how many lanes in the added bore, and whether north or south of the existing tunnel. (AR 119 33798-33799 [AR addendum ].) PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 8

29 30

1

occupancy vehicles (“HOV”) and/or toll-paying vehicles.14 (See, e.g., AR 10 2717; 11 30203021, 3029.) Coupled to this was a separate but related proposal to use toll revenues to subsidize

2

express bus service through the tunnel using the HOV lanes. (AR 14 3021.)

3

HOV, transit, and toll lanes clearly operate most efficiently and effectively when they

4

allow participating users to bypass a traffic “bottleneck”. These proposed alternatives meet the

5

Project’s stated objectives, including the directives from RM2 and Contra Costa County Measure

6

J to construct a fourth bore to the tunnel and to equalize through lanes in both directions. Caltrans’ response to these proposals was two-fold. In an “essay” on project alternatives,

7 8

(AR 10 2599-260115), Caltrans merely referred to the Draft EA/EIR’s discussion of the alternatives of providing HOV lanes or supplemental transit service along tunnel approaches or

9

through the existing three tunnel bores and concluded that these alternatives did not meet the

10

Project’s objectives. However, all of these alternatives were focused on avoiding building a

11

fourth bore, rather than considering alternative methods for operating a fourth bore. (See AR 9

12

2316.) In a separate seventeen-line essay (AR 10 2635), Caltrans concluded that operating

13

tunnel lanes as HOV/toll lanes would only make sense if approach lanes were similarly

14

designated. It then went on to categorically dismiss any such proposal, stating that:

17

In order for an HOV or toll lane system to offer time savings, it would require additional upstream HOV or toll lanes along the corridor to bypass the upstream congestion. If existing upstream lanes were to be converted from mixed-flow usage to HOV usage, that would introduce additional delays to mixed-flow traffic as it would take away mixed-flow lane capacity. (Id.)

18

Caltrans provided no evidence to support its assertion that converting an existing lane to

15 16

19

an HOV/toll lane would increase congestion.16

It also dismissed the idea of adding any

20 21 22 23 24

14

By operating one lane in each direction as an HOV/toll lane, the Project would meet the objective of eliminating the need for daily direction switches while addressing congestion in both directions, a benefit beyond that proposed by the Project. 15 While each comment letter received a response, the discussion of alternatives was invariably referred to a generalized “essay” on alternatives at the beginning of volume II of the Final EA/EIR. 16

25 26 27 28

While converting a mixed-flow lane to a restricted lane might seem inevitably to increase congestion, that is not necessarily the case. If the conversion and resulting improved travel time for HOV/buses induced drivers to abandon their single-occupancy vehicles in favor of a bus or car pool, the total vehicle count, and mixed-flow vehicle count, would decrease, thereby decreasing mixed-flow demand. Further, if toll revenue were used to subsidize transit, even more drivers might shift to transit, further lowering the mixed-flow vehicle count. Whether there would be a net increase or decrease in congestion would depend on the balance between the decrease in mixed-flow capacity and the corresponding decrease in mixed-flow vehicles. PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 9

29 30

1

additional lane space for the HOV/toll access, claiming that this would, “ … increase project costs significantly.” (Id.) Again, however, no evidence or cost estimate was provided that

2 3

would indicate such an option was financially infeasible. In short, Caltrans’ dismissal of this alternative as infeasible or not meeting project objectives lacked any substantial evidence.17

4 5

The Final EA/EIR also improperly rejected the option of increasing transit service in the

6

corridor. Caltrans’ “essay” on this issue (AR 10 2637-2638) discussed some forms of transit

7 8

improvement, but did not address a coordinated strategy connecting transit/HOV “queue jumper” lanes with one or more tunnel lanes dedicated to transit/HOV use.18. The essay concluded: Improvements to transit and other transportation projects are beyond the scope of the Caldecott Improvement Project. Potential congestion improvements such as increased transit and lower transit pricing are outside the jurisdiction of the Department and the Department cannot require transit agencies to enact changes or add projects to their systems. (AR 10 2638.)

9 10 11

This excuse fails to justify Caltrans’ refusal

12 13

to consider an alternative involving

HOV/bus lanes in the tunnel and its approaches. While Caltrans may not be responsible for the operation of BART, buses, or other public transit, it is responsible for highway facilities,

14

including those used by buses. Caltrans’ mission is not limited to facilities serving automobiles;

15

rather its stated mission is to “improve mobility across California,” which includes the goal of

16

maximizing “transportation system performance and delivery.”19 Caltrans’ excuse that it is not

17

responsible for transit operation or transit programs would allow both it and transit agencies to

18

avoid any project alternative, such as the HOV/bus lanes at issue here, involving both agencies.

19

Each could point to its inability to enact that part of the joint project in the other agency’s

20 21 22 23 24 25

Without further evidence or study, Caltrans’ assertion that converting a lane to HOV/toll would necessarily increase congestion is factually unsupported. 17 Contrary to Caltrans’ claim that toll lanes are infeasible, other metropolitan areas are utilizing toll lanes as a self-financing means to ease congestion. In 2008, the Metropolitan Transportation Authority and the California Transportation Commission both voted unanimously to create toll lanes on the 10, 210 and 605 freeways in the Los Angeles area within the next two years. Editorial, Green light for toll roads, Los Angeles Times (Apr. 29, 2008); Hymon, Bottleneck Blog: Toll lanes get nod, Los Angeles Times (Jul. 23, 2008). 18

26 27 28

The essay references a Transit Capacity Study purportedly done jointly by the Contra Costa Transportation Authority (“CCTA”) and the Central Contra Costa Transit Authority. That study, however, was not included in the record, nor was it cited as a supporting technical study in the EA/EIR. (AR 14 3860-3861.) 19 “Caltrans Mission and Goals,” http://www.dot.ca.gov/hq/paffairs/about/mission.htm. PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 10

29 30

1

jurisdiction and refuse to consider such an alternative, even though there is nothing in such joint agency involvement per se that would make the alternative infeasible. CEQA does not allow that

2

kind of shell game to occur.20

3

D.

4

In the Final EA/EIR, Caltrans concluded that there were very few potentially significant

5 6

THE EA/EIR FAILED TO PROPERLY IDENTIFY, ANALYZE, OR MITIGATE THE PROJECT’S POTENTIALLY SIGNIFICANT IMPACTS.

impacts, and that the Project’s mitigation measures would mitigate all of those to insignificance. (AR 13 3512-3522 [summary table of impacts and mitigation measures].)

7

This sanguine

conclusion, however, lacks evidentiary support and betrays a failure to comply with CEQA. As

8

already noted, Caltrans improperly restricted its consideration of project impacts by artificially

9

limiting the project study area. In addition, Caltrans’ consideration of traffic impacts failed to

10

properly consider growth-inducing impact, the impacts of induced demand, and impacts on

11

pedestrians and bicyclists. That fatally flawed traffic analysis, in turn, infected analyses of the

12 13

Project’s noise and air quality impacts. Equally defective were the EA/EIR’s conclusory analysis of growth-inducing impacts and refusal to analyze the project’s contribution to climate change. Lastly, the EA/EIR failed to analyze the cumulative land use (and other) impacts of the Project,

14 15

when added to past projects including the construction of the third bore, of the SR 24 and I-980 freeways, and of the BART structure through the North Oakland and South Berkeley areas.

16

1.

17

THE FINAL EIR/EA FAILED TO PROPERLY IDENTIFY, ANALYZE, MITIGATE THE PROJECT’S SIGNIFICANT TRAFFIC IMPACTS.

OR

Perhaps the most obvious potentially significant impacts from the Project were traffic

18

impacts. Adding another two lanes of traffic to the tunnel would, by relieving the existing 19

bottleneck, increase the tunnel’s throughput.

As a result, one would expect more traffic

20 21 22 23 24 25 26 27 28

20

CEQA requires that no public agency carry out a project which has significant impacts on the environment unless changes to mitigate or alter such impacts are “within the responsibility and jurisdiction of another public agency and have been, or can and should be, adopted by that other agency.” (Pub. Res. Code § 21081(a)(2).) The courts have rejected attempts by agencies to avoid their responsibility to mitigate impacts and consider alternatives on the basis of jurisdictional issues alone. For example, in Citizens for Quality Growth v. City of Mount Shasta (1988) 198 Cal. App. 3d 433, 442, fn. 8, the city claimed that it need not consider a mitigation measure for a development plan because the Army Corps of Engineers had the authority to project wetlands under its permitting process. The court held that the City “cannot so avoid responsibility for its decision ... Each public agency is required to comply with CEQA and meet its responsibilities, including evaluating mitigation measures and project alternatives.” (Id.) Likewise, Caltrans cannot claim that merely because other agencies may have joint jurisdiction, it is allowed to abdicate its responsibility under CEQA as lead agency to consider a reasonable range of alternatives. (See REMY ET AL., GUIDE TO CEQA (11th ed. 2007) pp. 388-389.) PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 11

29 30

1

downstream of the former bottleneck, both on the freeway and on connecting surface streets. Caltrans purported to address these potential impacts and found them insignificant. However,

2 3

Caltrans’ analysis of the impacts was prejudicially narrow. Consequently, the Final EA/EIR failed to acknowledge significant traffic impacts, or to consider mitigation for those impacts.

4

a.

5

The EA/EIR’s Traffic Analysis Failed to Properly Consider “Induced Demand.”

One component of the Project’s potential traffic impact derives from “induced demand.”

6

In its simplest terms, induced demand can be explained by the pithy sentence, “If you build it,

7

they will come.”21” A more complete explanation is that induced demand is the extra traffic on a

8

newly built or improved roadway project that wasn’t there until the project was built. (See, e.g.,

9

AR 11 3014-3017.22) The EA/EIR acknowledged the existence of induced demand and included

10 11

a short essay addressing how it handled this issue. (AR 10 2628-2629.) As the essay noted, there are several components to induced demand. These include a factor called “congestion avoidance,” another for shifting time of travel, one for “mode shift” – i.e., shifting from public

12

transit to private auto, one for changed destinations, and one for truly new trips – trips that didn’t

13

even occur until the Project was built23. Caltrans discussed each of these in turn. It noted that its

14

traffic modeling had taken into account trips that shifted to using the project because of

15

congestion avoidance or mode shift. However, it acknowledged that its modeling had not taken

16

into account the other four factors. These factors will each be addressed here in turn. Time of Travel – Caltrans attempted to excuse its failure to account for time of travel

17 18

changes in its modeling by noting that these trips would not change the total number of trips using SR 24 or total vehicle miles traveled. That may be true, but if traffic shifts from one time

19

to another, it will affect the amount of traffic on freeways and surface streets downstream of the

20 21 22 23 24 25 26 27 28

21

The sentence derives from the 1989 film, Field of Dreams, where a similar phrase was used to attract famed baseball players coming to a baseball diamond built in a cornfield. 22 The cited comment letter had attached to it a number of articles that explained, amplified, and provided substantial evidence in support of the Project’s significance and unanalyzed induced demand traffic-related impacts. Those attachments were improperly excluded from the Final EA/EIR (see, AR 11 3006 [Caltrans admission that it was not including the attachments in the EA/EIR]) and the certified Administrative Record, and therefore were not available to the public or decisionmakers when the Final EA/EIR was certified. Caltrans’ failure to provide, or even summarize, this content violated CEQA. CEQA Guidelines §§ 15132; 15362. By the parties’ stipulation, these attachments are included in the record addendum submitted herewith. (Record Addendum 2.) 23

Caltrans’ discussion also included Project growth inducement. That topic will be addressed separately, infra, pages 19-21. PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 12

29 30

1

tunnel at the different times. For example, if a westbound vehicle trip through the tunnel now occurred at 2 pm daily to avoid tunnel congestion, but, due to the Project, shifts to 4 pm, traffic

2

downstream of the tunnel will decrease at 2 pm but increase at 4 pm. Multiplied many-fold, as

3

can be expected for any trips that were not entirely time-sensitive, the Project would result in

4

trips that formerly didn’t occur at times of peak congestion (i.e., 7-9 am eastbound, and 4-7 pm

5

westbound)24 to shift to those hours. The result would be increased downstream traffic at times

6

when traffic congestion in those areas was at its maximum (e.g., on Tunnel Road/Ashby Avenue

7 8

in Berkeley, on Broadway and Telegraph Avenues in Oakland, and in the MacArthur Maze). The EA/EIR never analyzed this potentially significant impact. Changed Destinations and New Trips – Caltrans again acknowledged that its traffic

9 10

modeling did not include these factors. However, it attempted to minimize their importance. The EA/EIR stated:

11

14

Although there has been some controversy concerning the relative contribution of induced travel to the total traffic volume, recent research indicates that the contribution is small. One recent study in California, which examined the question of induced travel through comparison of improved and unimproved highway segments, found no statistical difference between the improved and unimproved segments and thus “no evidence of induced demand.” (Id. at 2629.)

15

This response is disingenuous. The response cites to two sets of “academic articles” on

12 13

16 17

induced demand.25

“Frequently asked Questions” webpage from the FHWA, all spread over the last seven years. •

18

The first set consists of two articles, one unpublished report, and a

The first-cited article, Testing for the Significance of Induced Highway Travel

Demand in Metropolitan Areas, by Lawrence C. Barr, is a statistical analysis of nationwide data

19

on highway improvements and travel demand. It explicitly acknowledges the reality of induced

20

demand and, rather than saying its effects are small, states that “ … the induced traffic effect was

21

found to be smaller than that reported by some previous researchers26.” This is neither here nor

22

there in determining the Project’s significant effects.

23 24 24

25 26 27 28

While those are not the peak hours for congestion in that direction on SR 24, they are peak hours for other nearby road segments. 25 The articles were omitted from the administrative record as certified by Caltrans. However, they are included in Petitioner’s Request for Judicial Notice (Exhibits K-O). 26 Some researchers have suggested that induced demand effects could be so large as to negate any improvement in congestion on the improved highway segment. See, e.g., Dutzig, Tony More Roads, More Traffic (2002) Maryland PIRG Foundation at p. 13 [AR Addendum 2 at 58]; PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 13

29 30

1

•

The second article, Road Expansion, Urban Growth, and Induced Travel, by

Robert Cervero, likewise noted that in some cases induced demand effects were not as large as 2 3 4

some previous estimates. However, it found that induced demand is likely to be more significant where the highway improvement is associated with increased vehicle speed, as it is here. •

The third article, Highways and Sprawl in North Carolina, by David Hartkin, is,

5

by its own terms, limited to North Carolina, a situation very different than the Caldecott Tunnel.

6

Further, it deals more with growth inducement than induced demand, and concludes that the

7 8

analysis presented cannot distinguish between population growth induced by highway improvement and highway improvements triggered by population growth.

In short, it has

nothing to say about the reality or size of induced demand impacts from this project. 9

•

The fourth “article”, a “FAQ” page from the Federal Highway Administration’s

10

website, presents FHWA’s opinions and policy position on induced demand, but provides no

11

substantial evidence to support Caltrans’ conclusion that its effects are insignificant here.

12 13 14 15

•

Caltrans also cites Revisiting the Notion of Induced Traffic through a Matched-

Pairs Study, by Patricia Mohktarian et al., to discount any evidence of induced demand from California highway projects. However, a more recent presentation by the same lead author27 . retracts the earlier claim and acknowledges that induced demand is real and significant, although its effects are difficult to determine precisely; as stated in one of the final slides, “Nevertheless,

16

the most sophisticated analyses find evidence for induced demand.” In short, while Petitioner

17

presented Caltrans with substantial evidence supporting the significance of induced demand,

18

Caltrans’ rejection of induced demand as a source of potentially significant traffic impacts is not

19

even supported by the evidence it cites for support.

20

b.

The EA/EIR Failed to Properly Address Significant Surface Street Impacts on Motorists, Bicyclists and Pedestrians.

21

Since early in the environmental review process, concern has been raised about

22

pedestrian/bicyclist impacts from the Project (e.g., AR 21 5643, 5646). The EA/EIR repeatedly

23

and emphatically disclaims any significant impact from the Project on bicyclists and pedestrians:

24 25 26 27 28

Noland, Robert B. Relationship between highway capacity and induced vehicle travel (2001) Transportation Research Part A 35 47-72 at pp. 68, 70 [AR Addendum 2 at 91, 93].) 27 Caltrans must certainly have been aware of this presentation, since it was presented at a 2004 Caltrans-sponsored event and was downloaded from the Caltrans website: http://www.dot.ca.gov/researchconn/past_speakers/DrMokhtarian/index.html. PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 14

29 30

The Caldecott Improvement Project will not have adverse impacts on existing bicycle and pedestrian routes and accessibility. Mitigation for such impacts is therefore not proposed. (AR 10 2601.)

1 2

The preferred Build Alternative will have no significant impact upon cyclists and pedestrians in Berkeley when compared to the No-Build. (AR 10 2699.)

3 4 5

The level of traffic impacts from the proposed project would generally have minimal effect on pedestrians and bicyclists. VMT on local streets within the State Route 24 corridor is projected to increase by less than 0.4%. (AR 10 2761.)

6

One must, however, ask what the evidence is that supports these categorical statements. The

7 8

EA/EIR does contain an essay entitled, “Bicycle and Pedestrian Access and Improvements.” (AR 10 2601-2603.) That essay is generally focused on possible alternatives to the Project, rather than project impacts, which are summarily dismissed in the fourth paragraph. The Final

9

EA/EIR also does contain a section entitled, “Traffic and Transportation/Pedestrian and Bicycle

10

Facilities.” (AR 13 3596-3622.) But the analysis in that section focuses entirely on automotive

11

traffic; primarily traffic on SR 24 itself, and secondarily effects on level of service (“LOS”) at

12

nearby surface intersections. It devoted one paragraph at the beginning to state:

13

16

The project will not modify any existing pedestrian or bicycle facilities. Although bikeway improvements are not part of the proposed Caldecott Improvement Project, the Alameda County Congestion Management Agency has completed a feasibility study to address various ways to improve bicycle and pedestrian circulation in the vicinity of the Caldecott Tunnel. The Department and the Contra Costa County Transportation Authority worked closely with the ACCMA to ensure that various alternatives were considered in the study. (Id. at 3596.)

17

The Department’s consideration of possible future improvements to bicycle and pedestrian

14 15

18 19

circulation is no substitute for EIR analysis of the Project’s impacts on bicyclists and pedestrians. In fact, the very data cited by Caltrans to show no significant impact on vehicle travel

20

reveal significant impacts on motorists, pedestrians and bicyclists. Caltrans did do a preliminary

21

analysis of surface street intersection LOS and the effect of the Project on them.28 The response

22

to comments gives what Caltrans felt was the “take-home lesson:”

23 24 25 26 27 28

28

Caltrans’ superficial analysis is rife with internal inconsistencies. For example, Caltrans considered two adjacent intersections along Ashby Avenue: Claremont Avenue and Domingo Avenue. (AR 9 2481, 2488.) The AM westbound no-build traffic on Ashby shown leaving the Domingo intersection (1230+50+32 = 1312 vehicles) is less than half that shown (934+2480+245 = 3659 vehicles) entering the Claremont intersection, the next intersection along Ashby. This, and similar inconsistencies, are not explained, or even called out. Caltrans and its consultants did, however, acknowledge that the traffic modeling of surface street intersections could not be validated against current empirical traffic counts. (AR 6 1400-1401, 1426; 10 2632.) PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 15

29 30

The traffic operations analysis does not show a significant impact on peak hour traffic on Tunnel Road/Ashby Avenue between the Hiller traffic light and Claremont Avenue. (AR 10 2769.)

1 2

Caltrans similarly concluded that there were no significant impacts on any of the other

3

surface street intersections. (AR 13 3521.) Even so, it was forced to admit that the increased 4

traffic due to the fourth bore would impact local intersections:

5

Collectively, the analysis results showed some degradation of average intersection LOS and increased delay that is consistent with the demand increases in general. In comparison to the Preferred Alternative, of the 62 analyses scenarios (morning and afternoon analyses for 31 intersections), there were twelve scenarios with one LOS drop and one scenario with two LOS drops while there was one intersection with one LOS improvement. In all, the average intersection delay increase would be less than 10 seconds per vehicle. (AR 10 2633.)

6 7 8 9

This approach may sound innocuous, but the use of averages can obscure significant

10

deviations from the average. For example, during the PM peak hour the Broadway Terrace and

11

Highway 13 northbound intersection would go from a delay of 195 seconds (LOS F) without the

12

fourth bore to 343 seconds with the two-lane fourth bore – a 76% increase in delay.29 (AR 13

13 14

3619, 3620; see also AR 9 2480, 2487 [comparison of intersection traffic movements].) Not only would such delay be significant for traffic trying to move through the intersection, it would also mean a long back-up of cars at the intersection, which would be hazardous for both

15 16

bicyclists and pedestrians trying to negotiate this complex and unsignalized intersection. Nevertheless, none of this is addressed in the EA/EIR, which simply says that:

17

19

While recognizing there would be additional delays at these intersections most likely to serve as links between the freeway and local communities, the minor increase in intersection delay is not significant compared to the total travel time saving. (AR 10 2633.)

20

CEQA makes no such provision for downgrading the significance of a project impact by

21

comparison with a project benefit. While weighing could be appropriate in a statement of

18

22 23 24 25 26 27 28

overriding considerations, CEQA does not allow the lead agency to allow “stubborn problems or serious criticism” to be “swept under the rug” in its EIR review. Cleary v. County of Stanislaus (1981) 118 Cal.App.3d 348, 357.) 29

The City of Oakland’s standards for significance of traffic impacts at an unsignalized intersection (which would apply to the Broadway Terrace intersection) specify that: 1) the project would add at least ten vehicles per hour to the intersection and 2) after project construction, the intersection would satisfy the Caltrans peak hour volume traffic signal warrant. (AR 10 2725-2726; RJN, Exhibit I.) The impact at the Broadway Terrace/SR13 intersection would, by this standard, be significant. PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 16

29 30

Other intersections showing increased delay (indicating increased traffic) on the west

1

side of the tunnel included the intersections of Ashby Avenue with Claremont and College 2

Avenues. (AR 13 3619, 3620.) Both intersections were already at unacceptable levels of service

3

(F and E respectively) even without increased traffic. The EA/EIR does not set forth a threshold

4

of significance for traffic impacts, but ordinarily even a small increase in delay at a signalized

5

intersection with LOS E or F is considered significant30. Additional traffic on Ashby Avenue/Tunnel Road, would also produce bicycle and

6 7 8

pedestrian impacts. East of Domingo Road, a long stretch of Tunnel Road has no pedestrian signals. Pedestrians must wait for a gap in the two-way traffic on Tunnel Road to cross it. (AR 11 2918, 2958.) With the increased westbound traffic due to the fourth bore, and the usual

9

eastbound late afternoon commute traffic (1530 vehicles/hr at Domingo [AR 9 2481]), it will

10

become almost impossible for pedestrians or bicyclists to safely travel along or cross Tunnel

11

Road during the evening rush hour. (AR 10 2768, 11 2919) Perhaps because of the focus on

12

automotive, rather than pedestrian and bicyclist impacts, the EA/EIR ignored this significant

13

impact.31 Data in the EA/EIR indicate, although the text does not admit, that the Project would

14 15

result in significant intersection degradation east of the tunnel, and not simply west. The Oak Hill Road and SR 24 Eastbound intersection would, during evening peak commute hours, go

16

from a 78 second delay without the Project to 158 second delay with the Project, a 103%

17

increase in an intersection already predicted to be at LOS of F. (AR 9 2433, 2434; 10 2711.) As

18

with the intersections west of the Hills, Caltrans’ response is to dismiss the impact as

19

insignificant. (AR 10 2712.) Finally, the EA/EIR fails to even consider the cumulative effect of the Project on

20 21 22

Broadway in Oakland, when considered along with Oakland’s then-pending bicycle master plan.32 That plan calls for installation of bicycle lanes along the entire length of Broadway from Highway 24 to Downtown Oakland and reduction in through traffic lanes in the area from Keith

23 24 25 26 27 28

30

See, Exhibit J to RJN (excerpt from City of Berkeley Guidelines for Development of Traffic Impact Reports). 31 See #10 in response to comment by Claremont Elmwood Neighborhood Assn. AR 11 2813; #32 in response to comment by Rockridge Community Planning Council AR 11 2974. 32 A notice of preparation for the EIR for the bicycle master plan was published on Sept. 6, 2005, well before the release of the Draft EA/EIR for this Project. (RJN, ¶4 and Exhibit E.) PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 17

29 30

1 2

Avenue south from two to one in each direction, with a middle turning lane. (Exhibit E to RJN.) This measure will effectively reduce Broadway’s traffic capacity by 50%.33 The EA/EIR fails to discuss the Project’s impacts on Broadway, where two SR24 exit ramps practically intersect at

3

Keith and Patton Streets. These ramps, and particularly the ramp from SR 24 Westbound, would

4

both be affected by the Project.34 The EA/EIR failed to consider the cumulative impact of the

5

reduction in lanes and project-related traffic increase on congestion and pedestrian safety along

6

that heavily-traveled corridor. c.

7

The EA/EIR Improperly Concluded that There Would be No Significant Weekend Traffic Impacts from the Project.

8

Several comments questioned Caltrans’ failure to conduct any study of weekend traffic

9

impacts. (E.g., AR 10 2683, 2694). Caltrans’ response, a short segment of its traffic modeling

10 11

“essay” (AR 10 2628), acknowledged that the CCTA model used for the traffic modeling was incapable on modeling weekend traffic conditions.

Caltrans then claimed, without any

supporting data, that, “weekend peak hours and period traffic volumes are usually lower than 12

weekday volumes so the “worst case” design volume is a weekday peak volume.”

13

AC Transit’s comment letter contradicts this claim, because it recognizes that “[a]

14

number of potentially affected roadway segments – including the Bay Bridge approach –

15

experience serious congestion problems on weekends, problems that this project could worsen.”

16

(AR 10 2683.)

17 18

In essence, the Project operation, during weekends, could transfer the

“bottleneck” downstream to the Bay Bridge approach, worsening that area’s already severe weekend traffic problems. The EA/EIR attempts to address the “downstream bottleneck” issue in part of its essay on traffic operations. Its answer is two-fold. One part is to claim that, even if

19

the bottleneck is moved downstream, there would still be a net improvement in traffic. That

20

claim, however, is not necessarily true, and is certainly not supported by any substantial

21

evidence. To take the Bay Bridge approach as an example, if operation of the Project on

22

weekends shifts extra traffic downstream to the Bay Bridge approach, worsening the bottleneck

23

there, it could have impacts on other roadways leading into that approach, notably I-80/580 at

24 25 26 27 28

33

This measure is intentional; in part to reduce traffic speeds, thereby increasing bicyclist and pedestrian safety. (AR 15 4078:4-17.) 34 See, AR 10 2632 [Broadway off-ramp identified as one of four affected by the Project]. Collectively, Caltrans states that these ramps showed a 6% volume increase due to the Project. (Id.) This does not include induced demand or growth inducement effects. The EA/EIR failed to break down this increase further between individual ramps. PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 18

29 30

1

the approach to the “maze”. Not only would this potentially impact traffic continuing in several other directions on I-80/580, but it could also increase the incidence of accidents on this

2

treacherous section of weaving traffic. None of this is considered in the EA/EIR.

3

The EA/EIR’s second argument is that bottlenecks tend to occur in the peak traffic flow

4

direction, while the traffic flow improvements made by the Project would be in the off-peak

5

direction. However, that argument does not hold on weekends, when, as the EA/EIR concedes,

6

the tunnel direction is currently shifted multiple times. (AR 13 3538.) Having four lanes

7 8

consistently available in the westbound direction would undoubtedly add to the alreadytroublesome backup on the Bay Bridge approach. The EA/EIR never addresses this potentially significant impact, or properly responded to the comments raising this issue.

9 2. 10

13

TO

The growth-inducing impacts of constructing new infrastructure components can have

11 12

THE EA/EIR FAILED TO PROPERLY ANALYZE AND MITIGATE PROJECT’S SIGNIFICANT GROWTH-INDUCING IMPACT.

must be analyzed under CEQA. (§ 21100(b)(5); CEQA Guidelines § 15126.2(d); City of Antioch v. Pittsburg City Council (1986) 187 Cal.App.3d 1325 [growth-inducing impacts of building new roadway and sewers must be considered].) Here, Caltrans acknowledged that it needed to

14

consider whether the Project, “ … could foster economic or population growth, or the

15

construction of additional housing, either directly or indirectly, in the surrounding environment.”

16

(CEQA Guidelines § 15126.2(d).) Caltrans claimed to consider the foreseeable growth with and

17

without the Project, as well as the amount, type, location, and timing of growth. (AR 13 3579-

18

3583.) The analysis noted that the Project would only facilitate trips in the “reverse-commute”

19 20

direction, i.e., eastward in the morning, westward in the evening.

Thus it would tend to

encourage job growth east of the tunnel and, conversely, residential growth west of the tunnel.35 The analysis stated that, “The cities of Berkeley, Emeryville, Piedmont, and Oakland on the west

21

end of the Caldecott Tunnel in Alameda County are relatively built out.” It then analyzed six

22

residential locations in more detail. Of these, only Berkeley lay west of the tunnel. Not

23

surprisingly, given the expected effect of the Project on commute patterns and the assumption

24 25 26 27 28

35

The analysis assumes a normal daytime work schedule, which seems reasonable for the vast majority of jobs. PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 19

29 30

1

that cities west of the tunnel were “relatively built out,” the analysis found no significant growth inducement. (See also, AR 6 1497-1544.)36

2

Significantly, however, the EA/EIR does not discuss the general plans for the cities

3

involved, or, for that matter, for other cities west of the tunnel.37 Instead, it relied on the

4

Association of Bay Area Government’s (“ABAG”) Projections 2002, 2003, and/or 200538. The

5

EA/EIR stated that Berkeley planned to limit growth to “intensified residential development

6

along major transit corridors.” (AR 13 3581.) From that, it concluded that the Project “would

7 8

not induce unplanned growth, but would help support planned growth.” (AR 13 3582.) No discussion was provided of Oakland’s planned growth.39 The City of Oakland’s General Plan designates the Telegraph Avenue Corridor, near SR

9

24 as a “Grow and Change” area. (“Strategy Diagram”, Exhibit F to RJN.) Land use for the

10

area along Telegraph north of the SR 24 interchange is designated “Urban Residential”, allowing

11

one unit per 261 sq. ft. lot area, and that south of SR 24 as “Community Commercial”, with the

12

same allowed density. (Exhibit H to RJN.) The current C-28 zoning only allows one unit per

13

450 sq. ft. of lot area. (§17.28.120, Exhibit G to RJN.)

14

Thus, the maximum density under the

general plan is 450/261 = 172% of what is allowed under the zoning. While the General Plan was updated in 1998, the City’s zoning code has yet to be

15

updated to conform to it. As an interim measure, Oakland’s current zoning code allows projects 16

consistent with the general plan but not allowed under current zoning to be approved under an

17

“interim” conditional use permit. (§17.01.100, Exhibit G to RJN.) This provision is only

18

intended to continue until Oakland’s zoning code is updated. During this interim period, which

19

has at this point lasted over ten years, the zoning ordinance’s density limits can be overridden.

20

The additional development (72% above the zoning’s density limit) that might occur under such

21 22 23 24

36

While the Growth Inducement Study was peer reviewed, the peer review panel did not include any City of Oakland representatives. (AR 6 1537.) 37 Caltrans, at an earlier stage, apparently did review general plans, but that information was not carried forward into the EA/EIR. (AR 120 33874.) 38

25 26 27 28

It is difficult, from the text of the Final EA/EIR to determine which projection(s) the growth induction analysis relied upon. The Growth Inducement Study did consider the Berkeley General Plan, but not that of Oakland. 39 The Growth Inducement Study (AR 6 1497-1544) states: “Other cities at the western end of the Caldecott Tunnel, such as Oakland and Piedmont, were not explicitly analyzed because the growth effects in nearby areas are expected to be similar to those reported for Berkeley.” (Id. at p. 1516.) PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 20

29 30

1

overrides certainly cannot, however, be called planned growth. Thus, contrary to the EA/EIR’s assertion, the area directly adjoining SR 24 in Oakland

2

would allow for a significant amount of additional unplanned new residential growth40. The

3

Project would therefore stimulate development of this additional unplanned growth, including

4

the demolition of existing housing in the area and displacement of current residents41. Because

5

the EA/EIR dismissed the Project’s growth-inducing impact as insignificant, these potentially

6

significant impacts were never analyzed; nor was mitigation considered. The failure to consider

7

this potentially significant growth-inducing impact violated CEQA. 3.

8

THE EA/EIR FAILED TO PROPERLY CONSIDER AND MITIGATE PROJECT’S SIGNIFICANT OPERATIONAL NOISE IMPACTS

THE

9

The Project had two categories of potential noise impacts: construction noise impacts

10

and operational noise impacts. The EA/EIR failed to adequately address either, but this section

11

focuses specifically on operational impacts. The Project’s operational impacts stem from the

12 13

fact that vehicles traveling on a roadway generate noise. The noise comes from a variety of sources: engine noise, exhaust noise, tire noise, transmission noise, and other miscellaneous noises associated with moving vehicles. The end result of combining all these different noises is

14

something generally called “freeway noise.”42

15

For its noise analysis, Caltrans used a “hybrid” metric, L33, where the noise level is

16

exceeded one-third of the time, and found that, in the area around the tunnel mouth, that metric

17 18

40

In the mile to either side of SR 24 along Telegraph Avenue, several hundred new unplanned units could easily be added, with displacement of the existing area residents.

19 41

20 21

Caltrans’ peer review of its draft growth inducement report elicited the comment from Patrick Kennedy, a developer specializing in urban intensification in Berkeley, that, “the tunnel would make his type of development more attractive.”(AR 120 33954 [AR addendum]), and that it would contribute to “greater attractiveness of the west side of the hills.” (Id.)

22 23 24 25 26 27 28

42

Freeway noise, like other noise, is measured in units of decibels. (AR 14 3703.) Decibels are a logarithmic unit. Every ten decibel increase translates into a ten-fold increase in noise intensity. (Id.) Further, noise is additive. Ten cars will produce ten times as much noise as one, and hence a noise level ten decibels higher. (Id.) Because the human ear is more sensitive to noise at some frequencies than others, the decibel level is usually weighted to the perception of the human ear, giving the unit of dBA. (Id.) The human ear will normally perceive a ten dBA increase as a doubling of the noise volume. (Id.) Finally, two other facts should be kept in mind. For a linear noise source, such as cars along a freeway, the noise level drops by three dBA for every doubling of the distance between the source and the listener. (AR 119 33628.) On the other hand, noise from a single source, such as a car backfire or a poorly muffled motorcycle, decreases by six dBA with every doubling of the distance. (Id.) PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 21

29 30

1

also decreased by roughly six dBA for every doubling of the distance.43

(Id.)

Federal

regulations require consideration of noise abatement whenever the post-project noise level 2

exceeds certain standards. For most uses along SR 24 in Oakland and Berkeley, including

3

schools, parks, playgrounds, schoolyards, residences, churches, etc., that standard is an hourly

4

average exterior noise level of 67 dBA. (AR 7 1812.) In addition, section 216 of the California

5

Streets and Highways Code requires noise abatement whenever the hourly average interior noise

6

level in a classroom exceeds 52 dBA. (Id. at 1811.) Caltrans has adopted a standard of

7 8

significance for freeway noise that defines a substantial noise increase, for purposes of requiring mitigation under CEQA, as an increase of 12 dBA above pre-project levels.44 (Id.) a.

9

Caltrans violated CEQA by using an inflexible and arbitrary threshold–the standard of a

10 11

The EA/EIR Used an Improper and Arbitrary Threshold for Significant Noise Impacts.

12 dBA increase in noise level above pre-project levels--as a sine qua non standard for whether the noise impacts were significant. In Protect the Historic Amador Waterways v. Amador Water

12

Agency (2004) 116 Cal.App.4th 1099, 1109, the court cautioned against just this kind of

13

inflexible yardstick for significance: “[A] threshold of significance cannot be applied in a way

14

that would foreclose the consideration of other substantial evidence tending to show the

15

environmental effect to which the threshold relates might be significant.” Caltrans automatically

16

rejected any noise increase that failed to meet its 12 dBA increase standard, regardless of what

17 18

the pre-project noise level was and regardless of what types of uses might be affected by the noise increase and how they would be affected.45 Even worse, Caltrans coupled its rigid threshold standard for significance to a truncated

19

project scope to avoid even considering some potentially significant project impacts.

For

20

example, Caltrans truncated the western border of the project study area in Oakland just west of

21

Shafter Avenue (AR 13 3571), allowing it to avoid considering potential noise impacts on the

22

Oakland FROG park (AR 10 2716, 2727), located practically directly under SR 24 in an area

23 24 25

43

This result presumably took into account the large amount of muffling by vegetation and variation in ground level in that area. 44

26 27 28

The Caltrans Noise Analysis Report fails to specify what metric this refers to – Lmax (maximum noise level), Leq (average noise level), L33, or some other metric. 45 CEQA Guidelines § 15064.7 encourages agencies to develop and publish thresholds of significance to use during environmental review. However, such a threshold is only a standard as to what will normally be considered a significant impact. PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 22

29 30

1

literally just outside of the project study area boundary, and actually considerably closer to both the freeway and the new fourth bore than many areas (e.g., San Pablo Park in Berkeley) included

2

in the project study area. (AR 13 3572, 3576.)

3

Even where areas were included in the project study area, appropriate noise studies were

4

not done; nor was consideration given to special circumstances. For example, Claremont Middle

5

School, located at the corner of Miles and College Avenues, has a second floor classroom only

6

roughly 75 feet from SR 24 freeway lanes. (RJN, ¶1 and Exhibits A and B.) The schoolyard is

7 8 9

also about the same distance from the freeway. Despite this, and the requirements of Streets and Highways Code section 216, Caltrans conducted no noise measurements at the school or anywhere nearby.46 Given the classroom’s extremely close proximity to the highway, and the measured Leq noise levels of well over 70 dBA at locations located considerably further from the

10

freeway than this classroom (AR 119 33645, 33653), the existing noise level in the classroom is

11

likely to be well in excess of the limit set by section 216. Nevertheless, Caltrans used the same

12

blanket 12 dBA standard throughout and found no significant project impacts. (AR 14 3723.) Caltrans provided no evidence in the EA/EIR or elsewhere in the record to support the

13 14 15

validity of its 12 dBA threshold for “substantial” noise increases. Instead, it merely cites to Caltrans’ noise analysis protocol, adopted almost ten years earlier. (AR 14 3704.) A ten decibel increase is heard as a doubling of a noise’s volume. By Caltrans’ own EA/EIR, substituting a

16

motorcycle at 50 feet for a vacuum cleaner (AR 14 3705) would not be considered a substantial

17

noise increase or a significant impact, even though any reasonable person would beg to differ.

18

Further, Caltrans’ 12 dBA threshold does not take into consideration whether the noise would

19

affect sensitive receptors, such as children. Caltrans’ rigid application of a 12 dBA threshold also strongly resembles the approach

20 21 22

rejected in Los Angeles Unified School Dist. v. City of Los Angeles (“LAUSD”) (1997) 58 Cal.App.4th 1019. In that case, Los Angeles had approved a project that would increase traffic noise and air pollution at two schools in the project vicinity. The city had found that the noise

23

increase, less than five decibels, was, “only a ‘marginal impact’ on the hearer.” (Id. at 1024.)

24

The court noted, however, that the city was obliged to consider the cumulative noise impact,

25

including past, present, and reasonably foreseeable probable future projects. The court noted

26 27 28

46

Indeed, the only places where Caltrans conducted any noise measurements were those that were likely to be affected by construction noise. (See AR 119 33642 et seq.) PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 23

29 30

1

that the noise levels in the area already exceeded recommended levels. It then pointed out that, while the new incremental noise impact might, in itself, be insignificant, it needed to be

2

considered in the context of past increases in noise levels that had already created a problematic

3

noise environment. (Id. at 1025.) Likewise, Caltrans’ project builds (almost literally) on noise

4

impacts created by the past Caldecott Tunnel and SR 24 projects; projects that have raised noise

5

levels to the point where they exceed federal standards.47 (AR 14 3705.) Caltrans cannot treat

6

the new increment of noise as existing in a vacuum, but must consider it when added to prior

7

noise impacts caused by past Caltrans projects. To quote directly from the case: Likewise, the relevant issue to be addressed in the EIR on the plan is not the relative amount of traffic noise resulting from the project when compared to existing traffic noise, but whether any additional amount of traffic noise should be considered significant in light of the serious nature of the traffic noise problem already existing around the schools. We do not know the answer to this question but, more important, neither does the City; and, because the City does not know the answer, the information and analysis in the EIR regarding noise levels around the schools is inadequate. (LAUSD, supra, 58 Cal.App. 4th at pp. 1025-1026.)

8 9 10 11 12 13

Similarly, Caltrans must reconsider the significance of this new increment of noise impact in the context of the cumulative impact of past Caltrans projects on the community.

14 15 16

b.

The EA/EIR Significantly Underestimated the Project’s Operational Noise Impacts.

17

In the EA/EIR, Caltrans asserts that the increase in freeway noise from the Project would

18 19

be less than 2 dBA. (AR 14 3705.) The noise study on which the EA/EIR is presumably based (AR 7 1802-1858) provides almost no additional supporting information, except to indicate that the calculation of future noise levels was done using the FHWA approved Traffic Noise Model

20

(TNM) Version 2.5, which considers a variety of factors, such as gradient, traffic volumes,

21

vehicle types, speed, and terrain. (AR 7 1814.) Since the only results given are those near the

22

tunnel mouth, one must presume that only values characteristic for that area were used in the

23

calculations.

Values in areas such as Claremont Middle School, where the roadway was

24 25 26 27 28

47

Because Caltrans failed to conduct any noise measurements beyond the vicinity of the tunnel entrance, it collected no data on current noise levels at sites further west along SR 24, for example Claremont Middle School, Chabot Elementary School, FROG Park, and the residences along Keith and Miles Avenues. However, since all these areas are closer to the freeway than the points at which Caltrans noise measurements were done, their noise levels are presumably even higher. (AR 119 33628 [noise levels near freeway decrease by 6 dBA for each doubling of the distance from the freeway].) PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 24

29 30

1

straighter (i.e., conducive to higher traffic speeds)48 and little vegetation buffers highway noise, were not considered.

2

Beyond these differences, Caltrans’ calculations are problematic because they are based

3

on the traffic volumes from Caltrans’ traffic modeling for the Project. But that modeling was

4

flawed by the failure to adequately consider induced demand and traffic associated with induced

5

growth. (See Section 1.a supra.) Consequently, the modeled traffic levels, and corresponding

6

noise modeling, underestimate the future noise impacts from the Project. The extent of that

7 8

underestimation cannot be accurately estimated until better traffic modeling is done. However, at present no substantial evidence supports Caltrans’ blanket assertion that the Project imposes no significant noise impact from the Project on any receptor.

9 4. 10 11

THE EA/EIR IMPROPERLY REFUSED TO ANALYZE AND MITIGATE THE PROJECT’S DIRECT, INDIRECT AND CUMULATIVE CONTRIBUTIONS TO CLIMATE CHANGE.

The “harms associated with climate change are serious and well recognized.”

12

(Massachusetts v. Environmental Protection Agency (2007) 127 S. Ct. 1438, 1455.)

13

California Legislature recognized when it enacted the landmark 2006 global warming legislation

14

known as AB 32, “[g]lobal warming poses a serious threat to the economic well-being, public

15

health, natural resources, and the environment of California.” (Health & Saf. Code, § 38501.)

16 17

As the

Numerous California authorities—including legislation, executive orders from the past several years, and actions of the California Attorney General and other state agencies—have reflected California’s recognition of the harmful environmental impacts associated with climate change, as

18

well as the application of climate change to CEQA assessment.49

19

Recognizing “the scientific consensus on the reality of anthropogenic climate change,”

20

the Attorney General has called in numerous settings for CEQA analysis that (1) quantifies the

21 22 23 24 25 26 27

48

The EA/EIR fails to analyze higher noise levels stemming from these speeds, or to consider the context of the noise disturbances. (See AR 11 3038.) 49 See, e.g., Executive Order S-3-05 (June 1, 2005) (“California is particularly vulnerable to the impacts of climate change); SB 97 (Stats. 2007, ch. 185) (requiring Governor’s Office of Planning and Research (OPR) by July 1, 2009 to prepare guidelines for the assessment and mitigation of greenhouse gas emissions); OPR Technical Advisory, CEQA and Climate Change: Addressing Climate Change through CEQA Review (June 19, 2008), http://www.opr.ca.gov/index.php?a=ceqa/index.html (“OPR Technical Advisory”); AR 11: 3051-3056 (California Attorney General’s March 30, 2006 letter to Orange County Transportation Authority addressing CEQA and climate change) (“Attorney General letter”).

28 PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 25

29 30

1

extent of carbon dioxide and other greenhouse gas (GHG) emissions from the Project; (2) assesses the Project’s direct, indirect, and cumulative contributions to climate change; and (3)

2

identifies mitigation or alternatives addressing any significant impacts. (See AR 11 3051-3056.)

3

California agencies and commentators have expressed a similar understanding in explaining a

4

CEQA lead agency’s duty to study climate change.50 The need for rigorous assessment of

5

climate change impacts is particularly acute on projects affecting vehicular travel and vehicle

6

emissions, because “passenger vehicles and light-duty trucks are responsible for 40 percent of

7 8

the total greenhouse gas pollution in the state.”51 Indeed, Caltrans’ own policy pledges it to provide “support” for the state’s efforts to control climate change and global warming. (AR 10 2750 (quoting Director’s policy DP-23).)

9

When the Draft EA/EIR failed to analyze the Project’s climate change impacts,

10

commenters—including the Environmental Health Director of San Francisco’s Department of

11

Public Health—requested that Caltrans fully study the project’s relationship to climate change in

12

accordance with CEQA.52 But remarkably, Caltrans refused to provide the CEQA-mandated

13

assessment, cursorily dismissing the need to do so in its responses to comments. While Caltrans

14 15

conceded that “it may be appropriate for a region wide transportation plan to consider the effects of global warming,” it opined that this analysis was “beyond the scope” of this projectspecific EA/ EIR. (AR 11 3062 (emphasis added).) Caltrans also conceded that the Project “will

16

add a minimal amount of new impermeable surface area to an already urbanized area, which

17

could theoretically add to global warming by increasing the heat island effect,” yet it theorized—

18

without performing any specific GHG analysis—that planting of trees would “reduce” that

19

problem by an unspecified amount. (AR 10 2751, 11 3053.) Lastly, Caltrans speculated that the

20

Project’s alleged reduction in congestion and weekly VMT would provide a “beneficial effect,”

21 22 23 24 25

50

See OPR Technical Advisory, supra, p. 5 (“compliance with CEQA entails three basic steps: identify and quantify the GHG emissions; assess the significance of the impact on climate change; and if the impact is found to be significant, identify alternatives and/ or mitigation measures that will reduce the impact below significance”); D. Owen, Climate Change and Environmental Assessment Law (2008) 33 COLUMBIA J. ENVIR. LAW 57, 75-96 (describing CEQA’s application to climate change).

51

26 27 28

Stats. 2002,ch. 200, § 1, subd. (e), enacting Health & Saf. Code, § 43018.5; AR 10 3053 (Attorney General memo, relying on this language). 52 See, e.g., AR 10 2745 (EIR should study “the net effect of induced demand, reduced transit use, and potential service-related mode shifts” on greenhouse gases); AR 11 3049, 3051-3056 (referencing and attaching Attorney General letter). PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 26

29 30

1

excusing Caltrans from having to provide specific and quantitative assessment of the Project’s relationship to climate change. (AR 10 2752, 11 3053.)

2

Caltrans’ summary refusal to analyze the Project’s specific contribution to climate

3

change violated foundational CEQA principles. First, because Caltrans failed to make any

4

“thorough investigation” of the Project’s relationship to climate change before summarily

5

rejecting the need to do so, it failed to proceed as required by law. (See, Berkeley Keep Jets Over

6

the Bay Committee v. Board of Port Commissioners (2001) 91 Cal. App. 4th 1344, 1370-71

7 8

[citing CEQA Guidelines § 15145 and adding italics: “If, after thorough investigation, a lead agency finds that a particular impact is too speculative for evaluation, the agency should note its conclusion and terminate discussion of the impact”].) So deficient is the EA/EIR here that it

9

does not even delineate any reasons why Caltrans believes a project-specific evaluation would be

10

impossible; instead, Caltrans relies on an artificial distinction, appearing nowhere in CEQA, that

11

would excuse a “project-specific” decision from full climate change assessment as long as the

12

project is not a region-wide transportation plan. (AR 11 3062.) Second, Caltrans’ halfhearted assertion that the Project would be “beneficial” on climate

13 14 15

change undercuts any contention that providing this analysis would be speculative. Notably, that conclusion does not come from substantial evidence analyzing the Project’s greenhouse gas impacts, but from rote repetition of Caltrans’ assertions, addressed elsewhere in this brief, that

16

the Project would cause some reduction in congestion and weekly VMT.

But that rote

17

assessment provides no context to measure some of the project’s broader consequences,

18

including induced demand and reduced mass transit use. Nor does Caltrans provide any basis to

19

excuse itself from providing the specific, quantitative assessment of project-related greenhouse

20

gas impacts that CEQA requires.53 Finally, the EA/EIR entirely fails to address the cumulative contribution of the Project to

21 22

climate change. CEQA requires that assessment even when project impacts, taken individually, would be de minimis, because “environmental damage often occurs incrementally from a variety

23 24 25 26 27 28

53

See AR 11 3054 (Attorney General letter, noting that [t]here could be such analysis….Carbon dioxide emissions from cars can be quantified,” and referring to information available from the California Air Resources Board); OPR Technical Advisory, supra, pp. 5-6 (noting that lead agencies should provide good-faith calculation of GHG emissions, and listing available modeling tools). PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 27

29 30

1

of small sources.”54 California has recognized that greenhouse gases have impacts throughout the state, and the project will profoundly affect the future of transportation in the region. The

2

Ninth Circuit, applying analogous NEPA law, found that the cumulative impact of greenhouse

3

gases is “precisely the kind of cumulative impacts analysis that NEPA requires agencies to

4

conduct.” Center for Biological Diversity v. National Highway Traffic Safety Administration

5

(9th Cir. 2008) 2008 U.S. App. LEXIS 17629, •114. Having failed to provide any assessment of

6

the Project’s cumulative contribution to climate change, Caltrans’ analysis would fail even if,

7

arguendo, its speculation of insignificant climate impacts were correct for this individual project. 5.

8 9

12

TO

PROPERLY CONSIDER

THE

PROJECT’S

An EIR must discuss the cumulative impacts of a project when “the incremental effects

10 11

THE EA/EIR FAILED CUMULATIVE IMPACTS. a. Overview

of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” (CEQA Guidelines § 15065(a)(3).) Under CEQA, an agency must first consider whether the

13

combined effects of the proposed project and any such related projects are cumulatively

14

significant. (CEQA Guidelines § 15064(h)(1).) If there is a cumulatively significant impact, the

15

agency must next analyze “whether any additional effect caused by the proposed project should

16

be considered significant given the existing cumulative effect.”

17

Environment v. California Resources Agency 103 Cal. App. 4th at p. 118.)55 Betraying these principles, Caltrans confined its analysis of cumulative impacts to

18 19

(Communities for a Better

current projects in the area, and thereby avoided the required analysis of the most significant cumulative impacts flowing from past projects.

Moreover, the EA/EIR’s discussion of

20 21 22 54

23 24 25 26 27 28

Communities for a Better Environment v. Resources Agency (2002) 103 Cal. App. 4th 98, 120; see also Pub. Res. Code, § 21083(b)(2)(project impacts can be “cumulatively considerable” when viewed in connection with the effects of other past, present, and probable future projects; Kings County Farm Bureau v. City of Hanford (1990) 221 Cal. App. 3d 692.

55

Communities for a Better Environment clarified that a cumulative impacts analysis should not compare the effect of the proposed project to the preexisting cumulative effect, but should evaluate whether the combination of the “project’s incremental effects are cumulatively considerable.” Id. at 120; see also Pub. Res. Code, § 21083(b)(2) (defining “cumulatively considerable”); Kings County Farm Bureau v. City of Hanford (1990) 221 Cal App. 3d 692, 720721 (rejecting cumulative impact assessment of cogeneration project that excluded analysis of relevant projects in the applicable air basin, as well as relevant water projects). PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 28

29 30

1

cumulative impacts improperly relies on baseline data in place of analysis, without making reference to any supporting planning document.

2

b.

3

The EA/EIR failed to assess the cumulative impacts of the Project in combination with the impacts of past projects.

The EA/EIR’s cumulative impacts analysis superficially evaluates only 13 ongoing and

4

future projects, without any consideration of past projects and their contributions to cumulative 5

impacts in the project area. (AR 14 3775-3798.) Commenters noted that the EA/EIR did not

6

include an analysis of the cumulative impacts of past projects – including the construction of the

7

Concord/Pittsburg/Baypoint BART line, SR 24, and SR 13 – carried out prior to the adoption of

8

key environmental laws that would now govern such projects.

9

unaddressed past impacts,56 the Project would produce major cumulative impacts in connection

10 11

In addition to previously

with Highway 24 and BART, including noise impacts and division of the North Oakland community along the Highway 24/BART right of way. (AR 10 3023.) But Caltrans rejected “past project” analysis, claiming that “[i]t is not the point or intent of the cumulative impact

12 13

analysis to allocate impacts from projects that are remote in time and location to the proposed project.” (AR 10 2614-2516.)

14

The agency’s truncated cumulative impacts assessment violates both the letter and the

15

spirit of CEQA. One of “the most important environmental lessons evident from past experience

16

is that environmental damage often occurs incrementally from a variety of small sources. These

17 18

sources appear insignificant, assuming threatening dimensions only when considered in light of the other sources with which they interact.”57 The court in LAUSD (58 Cal. App. 4th 1019, 1024 rejected a similar argument that “a project is only responsible for the significant environmental

19 20

impacts it causes, not for significant impacts which already exist.” (58 Cal. App. 4th 1019, 1024 (emphasis in original).) The court found that:

21 22 23 24

56

These projects were “constructed prior to the Clean Water Act section 404, National Historic Preservation Act, Department of Transportation Act section 4(f), CEQA, NEPA, and Civil Rights Act, Title VI.” (AR 10 3022, 3023.) Accordingly, “[n]ever-assessed-and-mitigated losses produced by the 1964 Grove-Shafter Freeway” include “the removal of 1,400 homes, fill of one kilometer of Temescal Creek and trail alignment, [and] loss of historic buildings on College Avenue.” (AR 10 3023.)

25 26 27 28

57

Kings County, 221 Cal. App. 3d at p. 720 (quoting D. Selmi, The Judicial Development of the California Environmental Quality Act (1984) 18 U.C. DAVIS L. REV. 197, 244, fn. omitted; Cal. Code Regs., tit. 14, §§ 15065(a)(3), 15355(b) (cumulative impacts include the effects of past projects); Communities for a Better Environment), 103 Cal.App.4th at p. 721 (rejecting de minimis standard for project-related cumulative impacts). PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 29

29 30

The relevant issue to be addressed in the EIR is not the relative amount of traffic noise resulting from the project when compared to existing traffic noise, but whether any additional amount of traffic noise should be considered significant in light of the serious nature of the traffic noise problem already existing around the schools … because the City does not know the answer, the information and analysis in the EIR regarding noise levels is inadequate. (Id. at p. 1025 [emphasis added].)

1 2 3 4

The EA/EIR’s exclusion of past projects from its cumulative impact assessment is

5

particularly significant with regards to: (1) land use issues related to pedestrian and bicycle 6

accessibility in North Oakland and Berkeley neighborhoods, (2) traffic flow in North Oakland

7

and Berkeley neighborhoods (3) noise impacts from increased traffic in North Oakland

8

neighborhoods, and (4) pollution impacts to children and their schools from increased traffic in

9

North Oakland neighborhoods. Despite evidence within the EA/EIR that increased traffic from the proposed project will

10 11 12

result in the degradation of local intersections by increasing delays (AR 10 2633) and threaten the safety of pedestrians and bicyclists in these neighborhoods58, the EA/EIR’s cumulative impacts analysis of transportation and traffic avoids analysis of the incremental but significant

13

increase in traffic impacts by considering only a limited set of current projects. (AR 14 3775-

14

3798.)

15

community from past projects, including specifically the construction of Highway 24, along with

16

the proposed project is totally ignored. The EA/EIR’s perfunctory community impacts analysis

17

(AR 133570-3579) ignores the impact of disrupting and dividing an existing community. (See

18 19

Further, the cumulative combined effect in dividing the North Oakland/Berkeley

CEQA Guidelines Appendix G [sample question IX.a—“Would the project divide an existing community?”].) The construction of the SR 24 freeway through North Oakland and Berkeley had just such a disruptive effect. The additional and cumulative disruption caused by the extra traffic

20

from the Project should have been considered in the EA/EIR, but was not.

21

Only by ignoring the traffic and community disruption stemming from past projects and

22

focusing solely on ongoing and proposed projects is the EA/EIR able to conclude that “these

23

impacts are not significant and combined with the relief of congestion provided by the proposed

24

project would not create any significant traffic related cumulative impacts.” (AR 10 3782.)

25 26 27

58

For example, pedestrians will have even more trouble being able to safely cross Tunnel Road during rush hour. See part I.D.1.b, supra at pp.14-17. (AR 11 2918, 2958; AR 10 2768, 11 2919.)

28 PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 30

29 30

Likewise, in evaluating the cumulative impacts related to noise, the EA/EIR only

1

considered four ongoing and proposed projects, including the predictably unsubstantial noise 2

generated from a group campsite. (AR 14 3781.) Yet the EA/EIR failed to consider the existing

3

noise level at sites such as Claremont Middle School,59 likely to be further impacted by the

4

proposed project. By conveniently ignoring past projects and their impacts, and evaluating only

5

present and proposed projects, most with relatively little impact, Caltrans reaches the unrealistic

6

and legally untenable conclusion that “[d]ue to the nature of these projects, they do not

7

contribute to cumulative impacts.” (AR 14 3779.) Finally, the EA/EIR notes that the Project meets air quality conformity requirements

8

because it was included in regional air quality analysis, which confirms to the State 9

Implementation Plan. (AR 14 3779.) While conformity may have been attained at a state, or

10

even regional level, such conformity does not, as the EA/EIR suggests, take the place of the

11

missing cumulative impact analysis for impacts to air quality in the project area. (Id.)60 Children

12

residing in the neighborhoods of North Oakland, and attending school at Chabot Elementary,

13

Claremont Middle School, Rock La Fleche School, and College Preparatory School, all located

14 15

in close proximity to the SR 24 freeway, will likely be exposed to incrementally greater air pollution due to increased traffic speeds, and increased traffic attributable to induced demand on surface routes as well as highway 24, resulting from the cumulative impacts of the proposed

16 17

project and past projects. (AR 11 3014-101; AR 13 3619, 3620.) Yet the EA/EIR does not address this potentially significant impact, nor respond to commenters raising this issue.61

18

c.

Caltrans cannot avoid analysis of the cumulative impacts of the Project and past projects by reference to baseline data.

19 20 21 22 23 24 25 26 27 28

59

Located at Miles and College Avenues, the middle school likely experiences noise levels well over 70 dBA. See part I.D.3.a, supra at pp. 22-24 (RJN, ¶ 1 and Exhibits A and B; AR 119 33645, 33653.) 60 Indeed, a pre-Project study conducted by the University of Southern California, which details the effect of exposure to traffic on the lung development of children, concludes that consideration of “local variation in air pollution” should be primary, in light of the finding that “proximity to freeway traffic is associated with substantial deficits in lung-function development in young children.” (W.J. Gauderman, et al., Effect of exposure to traffic on lung development from 10 to 18 years of age: a cohort study (2007) 369 LANCET 571, 574 [RJN, ¶ 12 and Exhibit Q].) This study received broad public attention immediately following its publication. (Maugh, T., Freeway’s tainted air harms children’s lungs, experts say, Los Angeles Times (Jan. 26, 2007).) 61 As in LAUSD, supra, the information and analysis in the Improvement Project EA/EIR is inadequate because Caltrans did not evaluate additional impacts from the proposed project in light of the existing serious impacts in the project area. (58 Cal. App. 4th at p. 1025.) PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 31

29 30

In its response to comments, Caltrans claims that its use of “approved regional growth

1

projections” as required by FHWA guidelines excuses the agency from conducting cumulative 2

impacts analysis since such data “implicitly include[s] the cumulative trip generation and related

3

impacts of such growth, and no additional cumulative impacts analysis is necessary.” (AR 10

4

2614.) The agency attempts to justify this end run around cumulative impacts analysis by

5

explaining,

6

Related past projects are normally considered as included in the current base of land use and employment from which future land use and employment is projected. Therefore, the traffic impacts of existing projects are included in the baseline of the cumulative impact analysis and every analysis of traffic impacts takes into account the traffic generated by current land uses and by existing transportation improvements. (AR 10 2614.)

7 8 9 10

In essence, Caltrans claims that because it has provided a snapshot of current conditions in the EA/EIR, this data substitutes for cumulative impacts analysis.

11

Such an approach directly

contradicts CEQA Guidelines requiring that “[a] lead agency shall identify facts and analysis

12

supporting the lead agency's conclusion that the cumulative impact is less than significant.”

13

(CEQA Guidelines § 15130(a)(2).)

14

The “projections-based method,” which Caltrans claims to be using, is outlined in CEQA

15

Guidelines and does not allow project proponents to skirt cumulative impacts analysis by

16

referencing baseline data.62 Caltrans’ data, which meet neither of these, are not derived from any

17

planning document that conducted the analysis required under CEQA. (CEQA Guidelines §

18 19

15130(b)(1)(B).) Nor do they meet the Guideline criterion that “[a]ny such planning document shall be referenced and made available to the public at a location specified by the lead agency.” (Id.) But the EIR/EIS does not properly reference what data it relies on when stating it has

20

“approved regional growth projections.” (AR 10 2614.) In sum, in attempting to circumvent

21

cumulative impacts analysis of past projects such as SR 24 and BART, Caltrans failed to

22

produce an EIR “prepared with a sufficient degree of analysis to provide decisionmakers with

23

information which enables them to make a decision which intelligently takes account of

24 25 26 27 28

62

Rather, it provides that: “[n]o further cumulative impacts analysis is required when a project is consistent with a general, specific, master or comparable programmatic plan where the lead agency determines that the regional or area wide cumulative impacts of the proposed project have already been adequately addressed,” (CEQA Guidelines § 15130(d)) or similarly, “[i]f a cumulative impact was adequately addressed in a prior EIR for a community plan, zoning action, or general plan, and the project is consistent with that plan or action, then an EIR for such a project should not further analyze that cumulative impact” (CEQA Guidelines § 15130(e).) PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 32

29 30

1

environmental consequences.” (Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal. App. 3d 421, 429.)

2 3 4 5

II.

CALTRANS IMPROPERLY FAILED TO RECIRCULATE THE FINAL EA/EIR AFTER NEW INFORMATION DISCLOSED SIGNIFICANTLY INCREASED IMPACTS AS WELL AS MITIGATION MEASURES AND ALTERNATIVES TO AVOID IMPACTS THAT CALTRANS REFUSED TO IMPLEMENT. Once a Draft EIR has been circulated for comments, and a Final EIR has been prepared,

6

it is usually not necessary for the revised EIR to be recirculated. However, in Laurel Heights

7

Improvement Assn. v. Regents of University of California (“Laurel Heights II”) (1993) 6 Cal.4th

8

1112, the California Supreme Court recognized an important exception to this general rule. That

9

exception is that:

13

Recirculation is only required when the information added to the EIR changes the EIR in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible project alternative or mitigation measure that would clearly reduce such an effect and that the project's proponents have declined to implement. We further conclude that a decision not to recirculate an EIR must be supported by substantial evidence. (Id at p.1120.)

14

This case involves precisely this exception. The comments and responses to the Draft

15

EA/EIR provided new information indicating that there were significant impacts not disclosed in

10 11 12

16

the Draft EA/EIR, and proposed previously undiscussed mitigation measures and alternatives to avoid those impacts; all of which Caltrans declined to implement. These circumstances should

17 18 19

have required recirculation, to allow the public to comment. Despite the explicit request to do so (e.g., AR 11 3025), Caltrans declined, and thereby violated CEQA. A.

THE FINAL EA/EIR DISCLOSED NEW INFORMATION INDICATING NEW AND SUBSTANTIALLY INCREASED SIGNIFICANT IMPACTS.

20 21

In responding to comments on the Draft EA/EIR, Caltrans added substantial amounts of new information to the draft document. This new information included the following:

22 23

•

A new induced growth analysis. This analysis indicated that under the no-build alternative reverse commute delays would amount to roughly 100 minutes per day

24

(AR 13 3580, as compared to the thirty minutes forecast in the Draft EA/EIR.

25

(AR 2 245.), and that the Project would result in an over forty minute daily time

26

savings in the reverse-commute direction (AR 13 3581), compared to the 18

27

minute savings estimated in the Draft EA/EIR. (AR 2 246.)

28

This change

significantly increased the already-significant growth-inducing effect of the PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 33

29 30

Project in encouraging additional unplanned development in Oakland and

1

Berkeley, particularly near entrances to SR 24 eastbound. 2

While the Final

EA/EIR attempts to play down the effect of this additional effect, the analysis

3

already presented here indicates that it would further increase the Project’s

4

growth-inducing impacts.

5

•

Further, because the Project’s growth-inducing impact is greater than was disclosed in the Draft EA/EIR, so too would be the reverse-commute traffic

6

associated with this induced growth. That growth-induced traffic would cause

7

further increase in the Project’s traffic impacts beyond those already identified

8

and discussed in section I.D.2 above. In particular, because much of the growth 9

induced by the Project would be along the Telegraph Avenue corridor in North

10

Oakland, the Project’s impacts on the Telegraph/SR 24-EB intersection in the AM

11

commute and on the Telegraph/SR 24-WB intersection in the PM commute would

12

be greater than disclosed in the EA/EIR. Neither Petitioner nor other members of

13

the public were given the opportunity to comment on this new and previously undisclosed impact.

14 15

•

The Final EA/EIR included a new analysis of Project lighting impacts, including specifically “temporary” lighting impacts during the Project’s estimated five year

16

construction period. This analysis disclosed previously undiscussed potentially

17

significant lighting impacts, including light trespass, glare, artificial sky glow, and

18

extreme surface brightness.

19

mitigation measures, the analysis identified the potential for significant previously

20

undisclosed lighting impacts (e.g., artificial skyglow from typical construction

21

site lighting). While the Final EA/EIR dismissed these impacts as insignificant

(AR 13 3666-3668.)

Despite newly proposed

because they would be “transient” (AR 13 3668) – i.e., only during the estimated

22

five years of construction activity, the public was never given the opportunity to 23 24

comment on or challenge this determination. •

Along with the construction lighting impacts, the Final EA/EIR disclosed that, in

25

an attempt to mitigate construction noise impacts, Caltrans would construct a

26

soundwall “between the west portal staging area and nearby residences to the

27

north.” (AR 14 3766.) While Caltrans indicated that the barrier would be placed,

28

“to break the line of sight from the staging area to as many as possible of adjacent PETITIONER’S OPENING BRIEF IN SUPPORT ON MOTION FOR PEREMPTORY WRIT OF MANDATE, PAGE 34

29 30