The standard practice of producing EIRs was upended to some degree by a recent loss in the Supreme Court by the City of Livermore. We decided to investigate deeper into the process of how these reports are created and by whom.
In Livermore’s case, the report with the salient deficient information was produced by Lamphier-Gregory for a development that would have been called Garaventa Hills. Now, an effort by Save Seven Hills Ranch to preserve open space instead of developing it into housing gives us the opportunity to examine the DEIR documents of these two nearby proposed developments. The first one has already failed, and we believe this new one is on its way to a comparable
Recently, we noticed a striking similarity within a key element of each report: the “No Project Alternative”. This is the component that was found to be out of compliance with CEQA law in three different courts, with finality at the California Supreme Court. Although we are a Tri-Valley organization, we do share some environmental kinship with neighboring counties; we also receive court mandated compliance reports on water delivery in Contra Costa County, where Seven Hills Ranch is located. Thus, we’ll wade into the Spieker development for the purposes of education and study.
Comparing the “No-Project Alternatives”
EIRs are usually very long documents – well over 100 pages. As we have observed before, the purpose of these reports is often far less about environmental protection and much more about pushing a development project forward. For the good of the environment, CEQA requires a No-Project Alternative for a legislative body to consider. It usually is identified as the environmentally superior alternative among all the others, as to avoid describing it this way would be inaccurate.
Here they are side by side:
Garaventa Hill (Lamphier):
Under a “no development” alternative, the Project site would remain in an undeveloped state. There would be no impacts on the environment, because no new development would occur.
Ability to Accomplish Project Objectives and Feasibility
A No Project/No Development alternative would not meet any of the project objectives, except for separating adjacent habitats from development activity (objective 6) and preserving the knolls (objective 7). With no development, this alternative would not complete implementation of the Maralisa development, would not contribute to housing availability, and would not provide housing near employment centers. It is assumed the existing informal trails would remain on site.
This alternative represents the possibility that no project is approved on this site. However, there is no current proposal for the City or other agency to purchase this site or otherwise preserve it in an undeveloped state. This site is zoned for and previously indicated under the Maralisa plan for residential development. Therefore, while this alternative analyzes a no development scenario, it is not necessarily feasible to assume the site would remain undeveloped in the long term.
Seven Hills Ranch (Powers):
The CEQA Guidelines specifically require consideration of a “No Project” Alternative. The purpose of including a No Project Alternative is to allow decision makers to compare the impacts of approving the project with the impacts of not approving the project. The Guidelines specifically advise that the No Project Alternative is “what would be reasonably expected to occur in the foreseeable future if the project were not approved, based on current plans and consistent with available infrastructure and community services.” The Guidelines emphasize that an EIR should take a practical approach, and not “…create and analyze a set of artificial assumptions that would be required to preserve the existing physical environment (Section 15126.6[e][B]).”
The No Project Alternative assumes that the project site would remain as it is today with the existing buildings being reoccupied.
Comparison of Environmental Impacts
The No Project Alternative would avoid all the project’s environmental impacts.
Relationship to Project Objectives
The No Project Alternative would not meet any of the project objectives as no change would be made to the existing land uses at the site and the current land uses do not provide any senior living facilities.
Because the No Project Alternative would not result in any new development on the site, this alternative would avoid all environmental impacts of the project. This alternative would not, however, meet any of the project’s objectives.
Notice the similarity in the language, and the general disinterested “mood” of the content. It is hard to believe the reports were prepared by two entirely different companies, for different counties, and different developers. Let’s face it, Lamphier-Gregory and David J. Powers are both essentially saying to their respective legislative bodies, “you seriously can’t do this”. As one of three alternatives presented in the massive EIRs, they occupy less than a page each.
We believe we see rather unhelpful brevity and insincerity of the overall effort to truly examine the alternative that is in the public’s best interest. That is what was struck down by the Court.
The Appellate justices noted (in “Save the Hill”): “As the Guidelines make clear, an EIR “shall focus on alternatives to the project or its location which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly.” (Guidelines, § 15126.6, subd. (b), italics added.)” and:
“Lacking adequate information regarding the no-project alternative, the city council could not make an informed, reasoned decision on whether this Project should go forward. Accordingly, its decisions to certify the RFEIR and approve the Project must be set aside… (See Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215, 1236;”
Getting Involved Earlier
The public often desires to make a real difference in how our government agencies impact the environment due to legislative actions. Typically intervention begins after the information spreads about an undesirable proposal, at some point after a DEIR is first produced. Community organizing then starts, with the focus on the legislative body being primary. This may be too late. Could there be a better way?
If the public can get ahead of the process at an earlier stage, (for example, if active concerned residents were to intervene at the bidding stage where environmental consultants first get involved) it might go a long way toward redirecting the momentum of staff and the elected body.
Let’s suppose an RFP is bid on by three consultants. The choice of vendor will be made at a public meeting, where comments could be given at this earlier date and perhaps encourage the bidders to reconsider their interest. Bidders may learn about crucial elements that might make the project unbuildable or very difficult evaluate. Perhaps they would need to adjust their bids to reflect additional costs, consider undiscovered obstacles, or not get involved at all. No consultant, no project.
Conclusion (for now)
CBG has not spent an extensive amount of time collecting the large number of EIR documents that would be required to discuss any definitive patterns within the Environmental Consultancy industry. What we do see in this case is an extraordinary similarity in the methods by which environmentally superior alternatives to development are disadvantageously positioned in legislative body reports. We expect to add more information as it becomes available.