1
IRENE V. GUTIERREZ, State Bar No. 252927 WILLIAM ROSTOV,
State
Bar No. 184528
2
EARTHJUSTICE
50 California Street, Suite 500
3
San Francisco,
CA 94111
T: (415) 217-2000
4 F: (415)
217-2040
5 Attorneys for Petitioners Sierra Club and Communities for a Better Environment
6
MAYA GOLDEN-KRASNER, State Bar No.
217557
7
SHANA LAZEROW, State
Bar No. 195491 COMMUNITIES FOR
A BETTER ENVIRONMENT
8
6325 Pacific Blvd., Suite 300 Huntington Park, CA 90255
9 T: (323) 626-9771
F: (323)
588-7079
10
Attorneys for Petitioner Communities
for a Better Environment
11
12
13 IN THE SUPERIOR COURT FOR
THE STATE OF CALIFORNIA FOR
THE COUNTY OF ALAMEDA
14
15
COMMUNITIES FOR
A BETTER ENVIRONMENT and THE
SIERRA
CLUB,
16
non-profit
corporations,
17
Petitioners,
18
vs.
19
METROPOLITAN TRANSPORTATION COMMISSION,
ASSOCIATION OF
BAY
20
AREA GOVERNMENTS,
and DOES
1 through 50, inclusive,
21
Respondents.
22
)
Case No.:
)
)
)
VERIFIED PETITION FOR
) WRIT OF
MANDATE
)
)
)
(California
Code of Civil Procedure §§ 1085 and
)
1094.5; California Public Resources Code §§
)
21167, 21168, and 21168.5)
)
)
)
)
)
2_files/image001.gif) 2_files/image002.gif) 2_files/image003.gif) )
23
24
25
26
27
28
Verified Petition
for Writ of Mandate 1
1
INTRODUCTION
2
1. The Bay Area is experiencing
a period
of significant growth, and
is expected to draw
3
an additional 2 million people
into the area over the next
thirty years.
4
2. This projected growth
will have myriad
effects
on the region –
from increasing the
5 need for
transportation and housing services,
to increasing the
size
of other economic
sectors, like
6 the ―goods movement‖ sector,
which is responsible for shuttling consumer goods around the state
7
and nation through transportation
hubs, such as airports,
seaports, highways
and railways. Growth in
8 goods movement—or freight
transport—has the potential to increase diesel emissions and
other air
9 pollution
from ships, trucks, and
trains using these transportation hubs. Though they will
affect the
10
entire region,
the health impacts resulting
from these emissions will particularly harm those who live
11
in communities closest to
transportation hubs and corridors, the majority of whom are low-income
12
and people of color.
13
3. Regional growth also
has
the potential to change the character
of historic ethnic
14
neighborhoods, such as West
Oakland, the Chinatown neighborhoods in San Francisco and Oakland,
15
and San Francisco‘s
Mission District, displacing low-income
and minority residents, as
an influx of
16
white-collar workers
drives
increasing prices
in housing markets. Regional
growth
has the potential
17
to spur climate change,
if the population continues
to rely on greenhouse gas
emitting cars and
18
trucks for its transportation
needs. The Bay Area is
uniquely vulnerable to the
accelerating pace of
19
climate change, as many of its
cities, towns, and transit routes
are
located in coastal
areas vulnerable
20
to sea-level rise.
21
4. Respondents the Metropolitan Transportation Commission (―MTC‖)
and the
22
Association of Bay Area Governments (―ABAG‖) serve as the Bay Area‘s regional transportation
23
and land use planning agencies. These agencies are required to create a regional plan (―Plan Bay
24
Area‖ or ―Plan‖) that serves the population‘s land use and transportation planning
needs,
25
accommodates goods-movement,
integrates transportation systems for people
and freight, and
moves
26
the region towards air pollution
and greenhouse gas reductions goals.
Failure to
plan responsibly for
27
the future and establish
a solid foundation to facilitate
these goals has the potential to cause serious,
28
irreparable harm.
Verified Petition
for Writ of Mandate 2
1
5. MTC
and ABAG adopted
Plan Bay Area on July 19,
2013. They certified the
2
environmental impact report (―EIR‖)
for the Plan on the same day.
3
6. In certifying the
EIR, MTC
and ABAG concluded
that implementation of the Plan
4
would not have significant
environmental effects in many areas, and that the significant
effects
of the
5
Plan could be mitigated.
6
7. The EIR highlights a number of flaws in the
Plan. The Plan does
not do enough to
7
reduce reliance on cars and trucks. Instead,
it expands highways,
and does not ensure enough
8
funding for
much needed transportation
reforms. Due to its failure to
implement sufficient
9
transportation reforms, the
Plan also fails to position the region to meet key greenhouse
gas
10
reductions goals.
Further, the Plan
fails to protect the health of vulnerable communities located near
11
transportation corridors, which
will see an increase in
the volume of goods movement. Finally, the
12
Plan does not ensure access
to affordable
housing, and creates the
risk that low-income
residents will
13
be displaced to areas
with poor access to public transit.
14
8. The EIR itself violates the California Environmental Quality Act (―CEQA‖). The
15
EIR for Plan
Bay
Area should accurately account for the environmental effects of the Plan, and fails
16
to do so. The EIR
masks the fact that the
Plan does little to reform the transportation system
and
17
consequently fails to make necessary greenhouse gas emissions
reductions
by
2040. Furthermore,
18
the EIR fails to analyze the
effects
of freight transport in the region, and the effects of measures
19
taken under the Plan
to accommodate projected growth
in freight movement in the region.
The
20
EIR‘s project
description
omits any mention of goods
movement, and as a result, fails
to analyze the
21
full scope of the project. Moreover,
the
EIR fails to adequately analyze the Plan‘s
contributions to
22
displacement and the environmental
effects
of displacement.
23
9. Petitioners Communities for a Better Environment (―CBE‖) and the Sierra Club
24
(―Petitioners‖)
file this action to set aside certification of the EIR, produce a new EIR that fully
25
informs the public
and decision makers
about the true scope and
environmental effects of the Plan,
26
and vacate a Plan
that fails to implement robust
transportation reforms, protect
the health of
27
vulnerable communities, and
guard against
displacement. 28
Verified Petition
for Writ of Mandate 3
1
JURISDICTION
AND
VENUE
2
10. This Court has
jurisdiction over this action
pursuant to Code of Civil Procedure
3
sections 1085 and 1094.5 and Public
Resources Code sections
21167-21168.7.
4
11. Venue is proper
in this Court pursuant to Code of Civil Procedure sections 393
and
5
394 because the Metropolitan
Transportation Commission and Association
of Bay Area
6
Governments are public agencies based in Alameda County.
7
12. Pursuant to Public Resources Code section 21167.5, Petitioners have provided written
8
notice of their intention to file this petition to the public
agencies and are including the notice and
9
proof of service as Exhibit
A to this petition.
10
13. Pursuant to Public Resources Code section 21167.7 and Code of Civil Procedure
11
section 388, Petitioners
have
served the Attorney General
with a copy of this
petition, along with a
12
notice of its filing, and are including the notice and
proof of service as
Exhibit B to this petition.
13
14. Consistent with Public
Resources
Code section 21167(b) and
(c),
Petitioners have
14
timely filed this action.
15
15. Petitioners participated
in the administrative processes
that culminated in the
16
agencies‘ decision to approve and certify the EIR for the Project
through written and
oral comments.
17
CBE commented on its own behalf, and also
as a member of the 6 Wins Network,
and raised
18
concerns regarding the
transportation reforms undertaken
by
the Plan, the Plan‘s
effects on
19
displacement, the need to consider
alternatives such as the ―Environment, Equity and Jobs‖
20
alternative, and
the
inadequate analysis
of greenhouse gas
emissions and goods movement.
The
21
Sierra Club commented on its own behalf and raised concerns
regarding the transportation reforms
22
undertaken by the
Plan – particularly the Plan‘s investment
in highway expansion projects, the
23
feasibility of the
Plan‘s use of priority development areas, the importance of funding
priority
24
conservation areas, and the need
to consider alternatives.
25
16. Petitioners have exhausted all of their administrative remedies prior to filing this
26
action.
27
28
Verified Petition
for Writ of Mandate 4
1
17. Petitioners
do not have a plain, speedy, or adequate remedy at law
because Petitioners
2
and their members will be irreparably harmed by the ensuing environmental
damage caused by
3
implementation of the Project and the
agencies‘ violations
of CEQA.
4
PARTIES
5
18. Petitioner COMMUNITIES FOR A BETTER ENVIRONMENT (―CBE‖)
is a
6
California non-profit
environmental health
and justice organization
with offices in Oakland and
7 Huntington Park. CBE
is primarily concerned
with protecting and enhancing the environment and
8
public health by reducing
air and water
pollution and toxics, and equipping residents
of California‘s
9 urban
areas who
are impacted by industrial pollution with the tools to monitor and transform
their
10
immediate environment.
CBE
has been an active participant
of the administrative proceedings
11
leading to the certification of
the EIR. It
has submitted comment letters in its name, and is also a
12
member of the 6 Wins for Social Equity Network, a coalition
of social justice, faith, public health
13
and environmental organizations, which advocated for the
inclusion of measures in the
Plan Bay
14
Area to promote healthy and
safe communities, develop robust and affordable
public transportation
15
services, preserve affordable housing, combat economic displacement and empower local
16
communities.
17
19. CBE has thousands
of members in
California. Many of
CBE‘s
members live, work,
18
and recreate in the nine counties that comprise the greater
San Francisco Bay Area.
CBE‘s
members
19
in Oakland‘s Coliseum
Area, adjacent to the I-880 freeway, are particularly interested in the
20
environmental design of the
freight
transport system, as well
as the community impacts of land use
21
planning. CBE members rely on
the
public transportation and highway infrastructure that
serves the
22
Bay Area, and are affected by the air quality and environment of the
area. They have an interest in
23
their health and
wellbeing,
and have conservation, aesthetic, and economic interests in the Bay Area
24
environment. CBE‘s members living
and working in the Bay Area have a right
to, and a beneficial
25
interest in, ABAG and
MTC performing their duties under
CEQA. These interests have been, and
26
continue to be, threatened
by
the agencies‘ decision
to certify the EIR
and
proceed with the
27
implementation of Plan Bay Area. 28
Verified Petition
for Writ of Mandate 5
1
20. By this
action, CBE seeks
to protect the health, welfare,
and economic interests of its
2 members and
the general
public and to enforce a public duty owed
to them by ABAG and
MTC.
3
21. Petitioner the SIERRA CLUB (―Sierra Club‖) is a national nonprofit organization of
4
approximately 600,000 members.
The
Sierra Club is dedicated
to exploring, enjoying,
and
5 protecting the wild places of the
earth; practicing and
promoting the responsible use of
the earth‘s
6 ecosystems and resources; educating and encouraging humanity to protect and
restore the quality of
7
the natural and human environment;
and to using all lawful means
to carry out these objectives. The
8 Club‘s
particular interest
in this case and the issues which
the case concerns stem
from the Club‘s
9 interest
in promoting an energy efficient transportation policy, that reduces reliance on fossil
fuels;
10
and protecting the
health of vulnerable communities. It has chapters
throughout the San Francisco
11
Bay Area, including
its San Francisco Bay,
Redwood and Loma Prieta
chapters. These chapters
12
have been active participants in the administrative proceedings
leading to
the certification of Plan
13
Bay Area, and have submitted
comments in their name and
have engaged with
the agencies and
14
other stakeholders
in the planning process.
15
22. Sierra Club has over 52,000 members in the Bay Area.
These members
live, work,
16
and recreate in the nine counties that comprise the greater
San Francisco Bay Area.
They
rely on the
17
public transportation
and
highway infrastructure that
serves the area,
and
are affected by the air
18
quality and environment of the
area. They have an interest in their health and well-being, and
have
19
conservation, aesthetic, and
economic interests in the
Bay Area environment. Sierra Club‘s
20
members living and working in
the Bay Area have a right to, and
a beneficial
interest in, ABAG and
21
MTC performing its
duties under CEQA. These interests have been, and continue to be, threatened
22
by the agencies‘ decision
to certify the EIR
and proceed with the implementation of Plan Bay Area.
23
23. By this action,
Sierra Club seeks
to protect the health, welfare, and
economic interests
24
of its members and
the general public
and to enforce a public
duty owed to them
by
ABAG and
25
MTC.
26
24. Respondent METROPOLITAN TRANSPORTATION COMMISSION (―MTC‖)
is
27
the transportation planning, coordinating
and financing agency for the nine-county San Francisco
28
Bay Area. It served as the regional transportation planning
agency (―RTPA‖) under state law, and
Verified Petition
for Writ of Mandate 6
1
the metropolitan planning organization (―MPO‖) under federal law for the Plan Bay Area. It
2 conducted
the environmental review of the Project and certified
the Environmental Impact
Report.
3
MTC acted as the co-lead
agency for
the purposes of CEQA.
4
25. Respondent ASSOCIATION OF BAY AREA GOVERNMENTS (―ABAG‖)
is the
5 comprehensive regional planning agency and
Council of Governments for
the nine counties and the
6
101 cities and towns of the San Francisco Bay Area. It conducted the
regional population
and
7
employment projects and
regional housing needs allocations for the Plan Bay Area. It conducted
the
8
environmental review
of the Project and certified
the
Environmental Impact
Report. ABAG acted as
9
the co-lead agency for the purposes
of CEQA.
10
26. The true names
and capacities,
whether individual,
corporate, or otherwise, of DOES
11
1 through 50 are unknown
to Petitioners. Petitioners will amend
this Verified Petition
for Writ of
12
Mandate to set forth
the true names and capacities of the Doe parties when they have been
13
ascertained. Petitioners allege
that
each
of the Doe parties
1 through 25 has jurisdiction by law
over
14
one or more aspects
of the project and its approval,
and that each of the
Doe parties 26 through 50
15
claims an ownership
interest in the Project or
the property that
is the subject of this action or an
16
interest in the actions of the Respondents
challenged herein.
17
BACKGROUND
18
I. The Community and Environmental Setting.
19
27. The greater Bay Area is comprised of nine counties – Alameda, Contra
Costa, Marin,
20
Napa, San Francisco, San
Mateo, Santa Clara, Solano
and Sonoma County. The region is home to a
21
racially and economically diverse population
of approximately 7 million
individuals. The
22
population is distributed through
major cities such as
San Francisco, Oakland
and San Jose, as
well
23
as through a wide range of
suburban and rural communities, in counties like Contra Costa, Sonoma
24
and Napa. Many of
the cities and towns in the region have
historically ethnic neighborhoods, such
25
as West Oakland, San Francisco and
Oakland
Chinatown,
and the Mission district.
26
28. Over the coming years, the region is expected to experience economic growth and
27
expansion, which is projected to result in
the growth of freight
movement throughout the
region, and
28
to attract new
people to the region
resulting in over
9 million residents by 2040.
Verified Petition
for Writ of Mandate 7
1
29. The area is served
by
various forms
of public transportation, including: rail
2 properties such as Bay Area Rapid Transit (―BART‖)
and CalTrain, bus properties such as the
3 Alameda-Contra
Costa Transit District (―AC Transit‖), SamTrans and MUNI, and various ferry
4 lines. Still, residents remain heavily reliant
on cars and light trucks
for transportation to work.
5
30. This reliance on cars and trucks as a
mode of daily transportation
has significant
6
environmental impacts on the region. Ordinary combustion engines emit ―greenhouse gases‖ such
7 as carbon dioxide, which contribute to global
warming,
and air pollutants such as nitrogen
oxides
8
and volatile organic compounds, all
of which have been shown to contribute to serious
health effects
9 such as respiratory ailments
and cardiovascular disease.
Cars and
light trucks remain the single
10
largest source of greenhouse gas
emissions in the State of California,
and in
the Bay Area, these
11
sources are responsible for nearly 40% of greenhouse
gas emissions in the region.
12
31. Over the past 30 years, there has been an
increase in the number
of vehicle miles
13
travelled (―VMTs‖), and associated greenhouse gas emissions. The Plan does nothing
to alter that
14
trajectory,
and continues to increase the amount of VMTs. The agencies‘ failure to shift
15
transportation patterns
in the Plan is a continuation of their long-standing pattern and
practice—
16
public transportation
ridership has remained relatively flat over
the past 20 years, despite regional
17
population increases.
18
32. The Bay Area
region
houses a number of key transportation
hubs, through which
19
large volumes of people and
consumer goods transit
on a daily basis.
It
has three major airports –
20
San Francisco International
Airport, San Jose International
Airport, and Oakland International
21
Airport. It
has several major ports, including the Port
of Oakland, the fifth-largest port in the United
22
States. The highways that serve the area have high volumes of truck traffic
carrying consumer
23
goods – I-880/80 carries the highest volume of truck traffic in the
region, and I-580 has
the second
24
highest volume of truck
traffic
in the entire nation. A
number of freight railway lines
also transit
25
through the region.
26
33. The movement of consumer goods through
the region represents a substantial
27
component of the local economy, and is expected to grow significantly in the near future. According
28
to a 2009 goods movement study conducted by MTC, ―manufacturing, freight transportation and
Verified Petition
for Writ of Mandate 8
1 wholesale trade‖ constitute nearly 40% of regional output. The same study
found that Bay Area
2
businesses spend over
$6.6 billion on transportation
services, and goods movement
businesses create
3
over 10 percent of
regional employment.
4
34. The overall movement
of goods
nationwide and in the region is expected to
increase.
5
The 2009 MTC study forecast
an increase in goods movement
through airports,
seaports and
6
railways of 109% between
2006 and 2009. The Federal
Highway Administration projects a
7 nationwide
increase of 80%
in freight tonnage hauled by trucks and
a 73% increase in rail
tonnage;
8
air cargo tonnage is
expected to quadruple. Activity in
California ports is expected to increase by
9
250% between the present and 2020. Due to shifting land use
patterns, trucks transiting through the
10
Bay Area are
expected to
increase the distances travelled to deliver their cargoes. The need
for
11
industrial lands is also expected to increase, as
more manufacturing and
warehouse space will
be
12
needed, to accommodate expected
increases in goods movement
through airports, highways,
13
seaports and rail.
14
35. The movement of freight has serious
environmental and public health implications.
15
A significant
portion of the greenhouse gas emissions
from transportation is due to
the movement of
16
freight and
goods through California. One quarter
of the Bay Area‘s particulate matter
(PM) 2.5
17
emissions are generated in
Alameda County, which hosts Interstate
880 and 80, routes heavily
18
trafficked by the trucks transporting goods from the Port of
Oakland.
The emissions
from freight
19
vehicles like trucks and
ships cause a number of adverse health effects,
from increased respiratory
20
and cardiovascular
ailments, to premature death. There will
be a
corresponding increase in these
21
emissions loads, as the volume of goods movement
increases through the region.
22
36. Goods movement also heavily impacts low-income and
minority communities. The
23
infrastructure that facilitates the
movement of goods –
the airports and seaports, and the highways
24
and railways that connect those facilities
to other parts of the state – is by and large situated
in low-
25
income and minority communities.
These communities are burdened
by
adverse health
effects
from
26
these transportation
hubs. The projected health
outcomes for residents
of neighborhoods
like West
27
and East Oakland are drastically different
from the outcomes for residents of wealthier
hillside
28
neighborhoods located further
from transportation infrastructure. For
example, an
African American
Verified Petition
for Writ of Mandate 9
1
born in West Oakland
is likely to die almost 15 years
earlier than a white person born
in the Oakland
2 Hills,
and is five times more
likely to be hospitalized for diabetes,
twice as likely to be affected
by
3
heart disease, and
twice as likely to die
of cancer.
4
II. Statutory Framework
Underlying Regional Transportation Plan
5
37. Pursuant to 23
U.S.C. §§ 134, et
seq., metropolitan planning organizations must
6
develop a long-term regional transportation plan (―RTP‖) every four years. MTC is the agency
7
responsible for preparing the RTP for the San Francisco Bay Area region. The last RTP for the Bay
8
Area was adopted
in 2009.
9
38. The policy underlying the RTP is ―to encourage and promote the safe and efficient
10
management, operation, and development
of surface transportation systems that
will serve the
11
mobility needs of people and freight and
foster economic growth and
development of
surface
12
transportation systems that will serve the mobility needs of people and
freight
and foster economic
13
growth and development
within and between States
and urbanized areas,
while minimizing
14
transportation-related fuel
consumption and air pollution through metropolitan
and statewide
15
transportation planning processes.‖ 23 U.S.C. § 134(a)(1).
16
39. The planning process shall
include consideration
of projects and strategies that will
17
―increase the accessibility and mobility of people and for freight,‖ and ―enhance the integration
and
18
connectivity of the
transportation system, across and between modes, for
people and freight.‖ 23 19 U.S.C. § 134(h)(1)(D),
(F).
20
40. Federal regulations require an integrated plan
which
accounts for the transportation
of
21
people and goods. They require RTPs to ―include both long-range and short-range strategies/actions
22
that lead to the development of an
integrated
multimodal transportation system
to facilitate the safe
23
and efficient
movement of people and goods
in addressing current and future transportation
24 demand.‖ 23 C.F.R. § 450.322(b).
25
41. The planning process shall further include
projects and strategies that ―protect and
26
enhance the environment,
promote energy conservation,
improve the quality of life,
and promote
27
consistency between transportation
improvements and State and local
planned growth and economic
28
development patterns.‖ 23 U.S.C. § 134(h)(1)(E).
Verified Petition
for Writ of Mandate 10
1
42. California
Government
Code §§ 65080 et. seq. provides
the statutory framework
2 under California law
for
regional transportation plans. The statute directs transportation
planning
3 agencies to prepare and adopt a plan ―directed at achieving a coordinated and balanced regional
4
transportation system, including,
but not limited to mass transportation, highway, railroad,
maritime,
5
bicycle, pedestrian, goods movement, and aviation facilities
and services.‖
California Government
6 Code § 65080(a).
7
43. The California
Sustainable Communities and Climate Protection Act
of 2008,
8 California Senate Bill 375
(―SB 375‖), added language to the statute, which also required RTPs
to
9
contain a ―sustainable communities
strategy.‖ A ―sustainable communities strategy‖ (―SCS‖)
10
consists of an integrated land use
and transportation plan, which
among other things,
must enable the
11
region to meet the greenhouse gas
emissions reduction targets set
by
the ARB. California
12
Government Code § 65080(b)(2)(B).
13
44. SB 375 is designed
to reduce GHG emissions
from
cars and light trucks. The
14
legislative history of
the statute emphasizes
that reductions should be achieved through reducing
15
reliance on automobiles
and trucks, and not through consideration of
other GHG reduction
16
programs: ―[T]his bill provides a mechanism for reducing greenhouse gases from the single
largest
17
sector of emissions, cars and
light trucks…[a]lthough greenhouse
gas emissions can
be reduced
by
18
producing more fuel efficient
cars and using low carbon
fuel, reductions
in vehicles miles travelled
19
will also be necessary.‖
Senate Rules Committee, Bill Analysis SB
375 (August 30, 2008).
20
III. Key Features of Plan Bay
Area
21
45. MTC and ABAG jointly led
the development of Plan
Bay Area,
in collaboration with
22
two other regional agencies, the Bay Area Air Quality Management District (―BAAQMD‖) and
the
23
Bay
Conservation and Development Commission (―BCDC‖).
24
46. The Plan is described as follows in the accompanying environmental impact
report,
25
―[t]he proposed Plan Bay Area serves as the 2040 Regional Transportation Plan (RTP) for the
San
26
Francisco Bay Area region as
well as the region‘s Sustainable Communities Strategy (SCS)
as 27
28
Verified Petition
for Writ of Mandate 11
1 2_files/image004.gif) required under SB 375.‖ Draft Environmental Impact Report (―DEIR‖) at 1.2-1.1 The proposed
2
Plan ―represents a transportation and land use blueprint of how the Bay Area addresses its
3 transportation
mobility and accessibility needs, land
development, and
greenhouse gas emissions
4 reduction requirements through the year 2040.‖ Id. It is the first Bay Area RTP to incorporate an
5
SCS.
6
47. As stated in the EIR, ―[t]he Plan aims to achieve focused growth by building off of
7 locally-identified Priority Development Areas and
by emphasizing strategic investments
in the
8 region‘s transportation
network (including a strong emphasis on operating and
maintaining the
9
existing system).‖
DEIR at 1.2-20.
10
48. The Plan seeks to concentrate housing
and job growth in areas known as ―Priority
11
Development Areas,‖ which are existing neighborhoods, nominated by local jurisdictions, with
12
access to transit and a pedestrian-friendly environment. This strategy is intended to ―enhance[ ]
13
mobility and economic growth
by
linking housing and jobs
with transit to create a more efficient
14
land use pattern around transit and
help achieve a greater
return
on existing and planned transit
15
investments.‖ DEIR at 1.2-24-25.
16
49. The transportation investment strategy of the Plan is intended to ―support the
17
proposed Plan‘s goals by reducing automobile dependency and
promoting healthier
communities
18
through reduced pollution and cleaner air.‖ DEIR at 1.2-37.
Among the investments proposed by
19
the Plan are regional
transit
system
improvements (including
BART and Caltrain extensions),
local
20
transit improvements,
road pricing improvements,
highway system
improvements (including the
21
widening of
particular highways,
and the creation
of new interchanges).
22
50. Only a small percentage of the funding of
the Plan is directed to innovations in the
23
transportation infrastructure. MTC estimates that approximately $292 billion in revenue will be
24
available through the year
2040. The majority of
these funds are already dedicated to particular
uses,
25
1 The Draft Environmental Impact Report
was released for public comment on April
2, 2013, and contains the project
description
and overview of Plan
Bay Area,
as well as
the substantive analysis
26
of the environmental impacts of the Plan. The Final Environmental Impact Report (―FEIR‖) was
released in July 2013
and
contains revisions to the DEIR, as well
as the public comments and
27
responses to public comments.
Since the bulk of the analysis of environmental
impacts is contained
in the DEIR, this Petition will refer to the
DEIR, unless otherwise noted.
28
Verified Petition
for Writ of Mandate 12
1
primarily in
transportation operations and
maintenance. Only $21
billion, or 7% of total
funds, will
2
be used for transportation
expansion.
3
51. The Plan continues
to expand highways,
and
agency projections
show that daily
4 vehicle
trips and miles travelled
will increase under the Plan. The Plan includes
some 194 projects
5
that increase freeway lane-miles,
at a cost of approximately $5.4
billion. Among the roadway
6
capacity increases proposed under the Plan is the ―Regional Express Lanes Network,‖ which ―builds
7 new high-occupancy/toll (HOT) lanes
on many of the region‘s
most congested
freeway corridors.‖
8
DEIR at
2.1-25.
Highway widening projects are responsible for the remainder of the
freeway
9
capacity increases. Under the Plan, daily vehicle trips
are
expected to increase by 22%.
Daily
10
vehicle miles travelled are expected
to increase by 20%.
11
52. The EIR
shows that under the Plan, through 2040,
there will be an increase in
12
5,571,000 metric tons of greenhouse
gas emissions from
the transportation sector.
This represents a
13
21% increase
from present conditions. Yet
the EIR improperly asserts
that there will be a decrease
14
in emissions from passenger vehicles over time. It does so by crediting emissions reductions from
15
separate state emissions reduction programs.
The
EIR factors in emissions reductions
from
16
Assembly Bill 1493 (―Pavley‖)
clean car standards, which set progressive greenhouse gas
emissions
17
caps for passenger vehicles
and light trucks. The EIR
also factors in emissions from Executive
18
Order S-01-07, which established a low-carbon fuel standard (―LCFS‖) which set goals to reduce the
19
carbon intensity of transportation
fuels.
20
53. The EIR
also shows that under
the Plan, through 2040,
there will be an increase in
21
6,769,000 metric
tons of greenhouse gas
emissions from various land uses (i.e.,
residential use, and
22
commercial, office and
industrial uses). This represents a 28% increase
from present conditions.
23
Only by applying emissions reductions from the Air Resources Board (―ARB‖) Climate Change
24
Scoping Plan (―Scoping Plan‖) implementing the California Global Warming Solutions
Act (―AB
25
32‖), are the agencies able to account for reductions as claimed in the EIR. The
ARB Scoping Plan
26
measures included in the DEIR‘s
calculations
are: energy efficiency programs (utility energy
27
efficiency programs, building and appliance standards, efficiency and conservation programs),
heat 28
Verified Petition
for Writ of Mandate 13
1
and combined power use programs,
renewables
portfolio
standards, solar roof programs,
solar water
2
heating and landfill
methane control.
3
54. The same programs
(Pavley, LCFS, and
AB
32 Scoping Measures) are taken
into
4 consideration when analyzing whether the Plan
meets
the goals of
Executive
Order S-3-05 (June 1,
5 2005) and Executive
Order B-16-2012 (March
23, 2012). Executive Order S-3-05 recognized the
6
need to reduce greenhouse gas
emissions to combat the
effects of climate
change, and set
the
7 following targets for emissions reductions: ―by 2010, reduce GHG emissions to 2000 levels; by
8 2020, reduce GHG emissions
to 1990 levels; by 2050 to 80 percent below 1990 levels.‖ Executive
9 Order B-16-2012 recognized
the importance of encouraging the development and adoption
of zero
10
emissions vehicles, and sets a ―California target for 2050 a reduction of greenhouse
gas emissions
11
from the transportation sector equaling
80 percent less than 1990 levels.‖ Without reductions from
12
Pavley, LCFS
and AB 32, land use
and transportation
emissions in the region
are
expected to
13
increase, and
the Plan does not meet the targets set
forth in these executive orders. Furthermore,
14
even with these reductions being taken into account, the
Plan will fail to adequately contribute to
15
meeting the executive
order targets.
16
55. The Plan situates key developments in areas
that are subject to sea level rise.
17
According to
the EIR, transportation
investments, land use
developments and residential areas
will
18
be subject to sea level rise. The
Plan proposes some
mitigation measures to address sea level
rise,
19
but states that ultimate responsibility for implementing these mitigations rests upon other local
20
agencies.
21
56. Significant concerns remain about the viability of the
PDAs proposed by the Plan.
22
The Plan does little to guarantee that
transportation services
and improvements
to serve the PDAs
23
will be adopted, or will
be able to continue where
they
currently exist.
For
example, some areas
24
designated
as PDAs, such as Treasure Island, the
Alameda Naval/Air Station, Vallejo and Benicia,
25
do not currently have access
to varied and robust forms of public transit, and
transit capacity will
26
need to be increased in order
to serve these areas. Several PDAs are located
in coast-adjacent
areas
27
that are vulnerable to sea-level
rise, as well as from
earthquake hazards. Additionally,
several PDAs
28
are located adjacent
to important natural resources, and
raise concerns that
they
will affect the
health
Verified Petition
for Writ of Mandate 14
1 of those resources.
For example, the Newark/Dumbarton
PDA
is located in the planned expansion
2 area for the
Don
Edwards National
Wildlife Refuge.
Still other PDAs raise concerns about
the
3 feasibility of
implementing the housing strategy proposed
by
the Plan – for example, the PDA in
4 Brisbane is currently only zoned for new
industrial development, and
the addition of new housing
5
will require a popular vote,
raising significant concerns about
the implementation of the PDA.
6
57. The Plan also creates
the risk of displacement of low-income communities.
7
According to
the Equity Analysis conducted
by
MTC and ABAG, the Plan would increase the
risk
8 of displacement to overburdened renters
by
36%. A number
of the areas identified for development
9 as PDAs
– such as Chinatown, Bayview/Hunters Point, the Mission District,
and areas identified for
10
development in Richmond and along major
corridors in East Oakland – have historically housed
11
renters, and
have been
home to long-standing, low-income
communities of color. The Plan does
not
12
ensure that affordable housing will remain
accessible
to these communities, thereby creating the risk
13
that members
of these communities will be displaced to suburban areas
which are further from
14
robust public transportation
systems.
When
they
do not have ready access to transit,
the low-income
15
members of these communities
tend to depend on older vehicles, with
greater levels of emissions,
16
for their daily transportation
needs. This movement will necessarily have environmental
impacts.
17
58. There is very little
consideration of goods
movement in the Plan
or EIR, despite
18
MTC‘s 2004 and 2009 studies providing
extensive information about projected increases
in goods
19
movement through
the region, the negative health effects of goods movement, and the need for
20
mitigations for the effects of goods
movement. This is in marked contrast to
the regional plan
21
created
by
the Southern California Association of
Governments, which includes a detailed
22
description of goods movement
in the project description,
a detailed analysis
of goods movement
23
through the region,
and proposes a variety of mitigation measures to address the environmental
and
24
health effects
of goods
movement.
25
59. The alternative proposals considered
by
the agencies
perform better than
the
Plan in a
26
variety of ways. For example, the EIR identifies Alternative 5, the ―Environment, Equity and Jobs‖
27
alternative as the environmentally superior alternative due in large part to its ―overall GHG
28
emissions reductions
and estimated reduction
in criteria and TAC [toxic air
contaminants] emissions.
Verified Petition
for Writ of Mandate 15
1
2_files/image005.gif) . . .‖ DEIR at ES-11, 3.1-148. Alternative 3, the ―Transit Priority Focus‖ Alternative, and
2
Alternative 5, both have lower levels of vehicle
miles travelled than the Proposed Plan.
Alternative
3
5 has the lowest amount
of vehicle
miles travelled,
at 2 percent lower
than the proposed Plan.
4
Alternative 5 also has the greatest
transportation ridership
than any other plan, 6 percent more than
5
the proposed Plan. Alternative 5
is also expected to reduce more transportation
and land use
6
greenhouse gases than the proposed Plan –
under Alternative 5,
GHG emissions
are
expected to
7
decline by 14 percent
between 2010 and
2040, which is a two percent greater
decline than the
8
proposed Plan.
9
60. Adopting the ―Environment, Equity and Jobs‖ alternative would dramatically increase
10
transit service levels, and will result
in a number of tangible benefits,
including: 83,500 fewer cars
11
on the road; 3.5 million fewer miles of auto
travel per
day;
165,000 more people riding public
transit
12
per day;
and 1,900 fewer tons
of carbon dioxide
emissions per day and 568,000 fewer
tons of
13
greenhouse gas
emissions per year.2
14
IV. Public Process
Leading to Approval of
Plan Bay Area
15
61. ABAG and
MTC formally initiated
the scoping process for
Plan Bay Area on
June
16
11, 2012, when the agencies sent a copy of the Notice
of Preparation (―NOP‖) to the State
17
Clearinghouse within the California Office of
Planning and
Research.
18
62. During the period
leading up to the
approval of Plan Bay Area and the
certification of
19
its EIR, ABAG and
MTC held
a number of public workshops
and public hearings.
20
63. The Draft EIR for Plan Bay Area was released on April 2, 2013. Despite receiving
a
21
number of requests
from organizations and
individuals to extend the
comment period, in order to
22
fully analyze the
voluminous EIR, MTC and ABAG refused to extend
the comment period beyond
23
the minimum 45-day period required by CEQA.
24
25
26
2 In fact, the actual improvements over the Plan will likely be greater,
as these numbers are underestimates because this
27 alternative was modeled differently than the plan.
28
Verified Petition
for Writ of Mandate 16
1
64. ABAG and MTC discussed the EIR during several public
hearings. These hearings
2
culminated on July 18,
2013 in a joint ABAG/MTC hearing to
approve the Final
Plan and the Final
3
EIR.
4
65. Petitioner Communities for a Better
Environment submitted written comments to the
5
EIR, and made comments during
public hearings on the EIR. It made comments on its own behalf,
6
and also as part of the 6
Wins Network. Among
the concerns raised
in its comments were:
the EIR‘s
7 analysis
of greenhouse gas
emissions, concerns about sea-level rise, the EIR‘s
failure to
analyze
8 goods movement issues, the EIR‘s failure to adequately analyze alternative proposals such as the
9
―Environment, Equity and Jobs‖ alternative, the EIR‘s compliance with CEQA, transportation
10
funding under
the Plan, and the Plan‘s
effects on displacement.
11
66. Petitioner Sierra Club submitted written comments
to the EIR. Among the issues
12
raised in its comments
were:
concerns about
the expansion of highway lanes, concerns about
the
13
insufficient investment in public transportation, concerns
about the viability of Priority Development
14
Areas, concerns about
Priority Conservation
Areas, and
concerns about
the EIR‘s failure to
15
adequately analyze alternative proposals, such as the ―Environment, Equity and Jobs‖
alternative.
16
67. During the written
comment period and
public hearings on the EIR,
Caltrans and
17
various other organizations
and individuals commented about
the planning agencies‘ obligation to
18
consider ―goods movement‖ issues
as part of the Plan, as well as the
public health and other
19
concerns associated with truck
traffic and
other modes of goods transportation.
20
68. Various groups,
such as the Chinatown
Community Development Center
and Public
21
Advocates
on behalf of a coalition
of groups also commented
on the risks of displacement created by
22
the Plan, as well
as the environmental effects of such displacement.
23
69. During a Joint ABAG and MTC meeting on June 14, 2013, the issue of ―Goods
24
Movement and Industrial Lands‖ was raised as an ―Additional Initiative‖ and/or ―Priority for Plan
25
Bay Area Implementation.‖
According to the agencies, such implementation
measures should be
26
―added to the final Plan Bay Area as key areas for additional
work by ABAG and MTC.‖
27
Specifically, with respect to goods movement and industrial lands issues, the agencies stated: ―[t]he
28
movement of freight
and the protection of production
and distribution facilities
has important
Verified Petition
for Writ of Mandate 17
1
environmental,
economic and equity implications
for
the region. Building on MTC‘s Regional
2
Goods
Movement
Study and
related land use analysis,
MTC/ABAG will evaluate
the needs related to
3 development, storage and movement
of goods through our region
and identify essential
industrial
4
areas to support the region‘s economic vitality.‖
5
70. During a June 20, 2013 ABAG Executive Committee Meeting, the committee voted
6 to
include goods movement
and industrial lands issues as a measure that would
be part of the Plan
7
Bay Area.
8
71. The language added to the Plan acknowledges that ―the movement of freight, and the
9 protection
of production and
distribution businesses have important environmental,
economic and
10
equity implications
for the region.‖
Summary of Major Revisions and Corrections
to the Draft Plan
11
Bay Area, pp. 28-29 (July 2013). Yet,
the Plan appears to take few practical measures to deal
with
12
the expected increases in goods movement
and deal with the effects
of these increases, other
than to
13
state that the agencies
will
work with local businesses and jurisdictions, and other agencies,
to
14
identify funding,
update study information
and develop best practices. Despite this inclusion of
15
goods movement language in the
Plan, the EIR contains
no discussion in its project
description of
16
projected increases
in the volume of goods movement through local transportation
hubs, no
17
meaningful analysis
of goods movement trends, and no analysis of how goods movement
measures
18
might interact
with other aspects of the Plan. Furthermore, despite
having had the benefit of the
19
goods movement studies previously prepared
by
MTC, the EIR does
not contain any of
the findings
20
from those studies
regarding goods
movement trends, the environmental impacts of goods
21
movement, or mitigation measures that were explored
in those studies.
22
72. The Final EIR
was
released in July 2013,
prior to the final public hearing on
the Plan
23
and EIR.
24
73. On Thursday,
July 18, 2013,
ABAG and MTC held a joint
hearing to approve the
25
Final Plan and the Final EIR.
The hearing was over seven hours
long, and in the
early hours of July
26
19, 2013, the agencies
agreed
to adopt the Plan and
certify the EIR.
27
74. The Notice of Determination for Plan Bay Area was filed on Friday, July 19,
2013. 28
Verified Petition
for Writ of Mandate 18
1
75. The final
revisions to the Plan were released
in August
2013. There appear to be
2
discrepancies between some
of the figures set forth in the
Final EIR and the final revisions
to the
3
Plan, which highlight how the agencies
have
rushed through the public process
and towards approval
4
of the Plan.
5
FIRST CAUSE
OF ACTION
6
Violation
of CEQA – Public Resources
Code Sections 21000 et seq.
and
the
CEQA Guidelines,
Cal. Code of Regs., Tit. 14, Sections 15000 et seq.
7
ABAG and MTC Failed to
Provide Information upon
Which Conclusions Are Based
8
76.
Petitioners re-allege, as
if fully set
forth
herein, each
and every allegation
contained 9
in the preceding paragraphs. 10
77.
The policy underlying CEQA is to ―develop and maintain a high-quality environment 11
now and in the future, and take all action
necessary to
protect, rehabilitate, and
enhance the 12
environmental quality of the state.‖ (Cal. Pub. Res. § 21001(a).) Under CEQA, an EIR must 13
―inform governmental decision-makers and the public about the potential, significant environmental
14
effects of proposed activities,‖ and to ―identify ways that environmental damage can be avoided or
15
significantly reduced.‖ (Cal. Code Regs. tit. 14, § 15002.) 16
78.
To fulfill these objectives, CEQA requires that an EIR provide an ―analytically 17
complete and coherent explanation‖ of its conclusions.
(Vineyard Area Citizens for Responsible
18
Growth v. City of Rancho Cordova
(2007) 40 Cal. 4th 412, 439-40.) ―The data in an EIR must not
19
only be sufficient
in quantity, it must be presented in a manner calculated to adequately inform
the 20
public and decision makers, who may not be previously familiar with the details of the
project.‖ (Id.
21
at 442.) Moreover,
an EIR
that purports to rely upon
a future analysis
or that does not properly
22
incorporate
or reference a separately performed analysis does
not adequately inform the
public. (Id.
23
at 440-41, 443; see also Cal. Code Regs. tit. 14, § 15151 (providing that an EIR should
contain ―a 24
sufficient degree of analysis to provide decision-makers with
information which enables them to 25
make a decision which intelligently takes account of environmental consequences‖); Laurel
Heights
26
Improvement
Ass’n v. Regents of the Univ. of Cal. (1988)
47 Cal. 3d 376, 404, internal citation 27
omitted (―there must be disclosure
of the analytic route the . . . agency traveled from evidence to 28
Verified Petition
for Writ of Mandate 19
1
action‖ .) Additionally, ―information scattered here and there
in EIR appendices or a report buried in
2
an appendix is not a substitute
for a good faith reasoned analysis.‖
(Vineyard, 40 Cal. 4th at 442.)
3
79. The EIR
for
the Project fails to properly inform the public and decision makers of the
4
basis for its conclusions. These failures
include, but are not
limited to, the following:
5
a) A failure to
provide adequate
information regarding funding and
6
implementation
for the transportation reforms that are proposed under
the
7
Plan, including transportation
reforms
intended to serve the Priority
8
Development Areas.
9
b) A failure to provide information regarding the feasibility of, and
10
implementation of, mitigation
measures to combat the effects of development
11
in areas subject to sea-level
rise.
12
c) A failure to
properly analyze the
environmental impacts of the miles of new
13
freeway lanes
added in the Plan.
14
d) A failure to analyze the environmental effects of goods movement
measures
15
and their integration
into the RTP.
16
e) A failure to
include, consider and analyze the
information on goods movement
17
in MTC‘s 2004 and 2009 reports
on goods
movement.
18
f) The EIR fails
to present in an adequately informative manner the assumptions
19
upon which its land use and
emissions modeling is based. Instead of clearly
20
and coherently explaining the assumptions contained in land use
and
21
emissions models such as
EMFAC and UrbanSim—with
respect to issues
22
such as modeling for aspects
of goods
movement—or modeling emissions
23
reductions achieved from LCFS
and Pavley,
the EIR leaves the public
24
scrambling between
the DEIR, the FEIR and responses to comments, various
25
appendices, and
explanations separate and apart from the
One Bay Area
26
website to understand the basis
for
the modeling done to
analyze the
27
environmental impacts
of the Plan. 28
Verified Petition
for Writ of Mandate 20
1
g) The EIR contains
misleading and unsupported
conclusions that there will be
2
no environmental significance from
the Plan‘s effects
on greenhouse gas
3
emissions in the transportation
sector. When analyzing the
Plan‘s effects
on
4
greenhouse gas
emissions trajectories,
the EIR
looks at emissions from
5
various vehicle classes
(i.e.,
passenger vehicles, trucks, buses), and then
6
subtracts emissions reductions that
will be achieved from measures
7
implemented separately from the Plan, such as the Low Carbon Fuel
Standard
8
and Pavley Clean
Car standards. It is only these reductions
from other
9
programs that
result in a finding that transportation greenhouse gas
emissions
10
will decline by 2040. However, the EIR makes
it appear that the
reduction in
11
greenhouse gas
emissions is due to the Plan itself.
12
h) Likewise, the EIR contains misleading conclusions
that there will be no
13
environmental significance from the Plan‘s effects in
its analysis of
14
greenhouse gas
emissions in the land use sector.
When
analyzing the Plan‘s
15
effects on greenhouse gas emissions trajectories, the EIR looks at emissions
16
from households, commercial,
office and industrial land uses,
and then
17
subtracts emissions that
will be achieved through AB 32 Scoping Plan
18
reductions. It is only these reductions
from other programs that result
in a
19
finding that land use greenhouse gas
emissions will decline by 2040.
20
However, the EIR
makes it appear that
the reduction in greenhouse
gas
21
emissions is due to
the Plan itself.
22
i) The EIR
also contains misleading
conclusions
regarding the effects
of the
23
Plan on displacement
of low-income
and minority communities, and also
24
contains misleading conclusions regarding the alternatives‘ ability to
mitigate
25
displacement risks.
26
80. These failures precluded informed
decision-making,
including the informed
27
comparison of reasonable alternatives
to the Project. 28
Verified Petition
for Writ of Mandate 21
1
81. The agencies‘ action certifying the Project‘s EIR without
providing proper
2
information to support their conclusions
constitutes a prejudicial
abuse of discretion, since they
3
failed to proceed in the manner
required by CEQA.
4
SECOND CAUSE OF ACTION
5
Violation of CEQA
- Public Resources Code
Sections 21000 et seq. and the CEQA Guidelines, Cal. Code of Regs., Tit. 14, Sections
15000 et seq.
6
ABAG and MTC Failed to
Provide a
Clear and
Accurate Project Description
7
82.
Petitioners re-allege, as
if fully set
forth herein, each
and every allegation
contained
8
in the preceding paragraphs.
9
83.
CEQA is a comprehensive
statute designed to provide
for
long-term protection
of the 10
environment. In enacting CEQA, the state Legislature declared its intention that all
public agencies 11
responsible for regulating activities
affecting the environment give prime
consideration ―to
12
preventing environmental damage, while providing a decent
home and satisfying living
environment 13
for every Californian.‖
(Cal. Pub. Res § 21000(g).)
14
84.
To this end, CEQA requires
that an EIR include a clear and accurate project 15
description and that the
nature and
objective of a project
be fully disclosed and
fairly evaluated in 16
the EIR. Specifically, an EIR‘s project description must describe ―[a] statement of the objectives
17
sought by the proposed project,‖ which ―should include
the underlying purpose of the project.‖ (Cal. 18
Code Regs. tit. 14, § 15124(b).)
―A clearly written statement of objectives will help the lead agency 19
develop a reasonable range of alternatives
to evaluate in the EIR
and will aid the decision makers in 20
preparing findings or a statement of overriding considerations,
if necessary.‖ (Id.) The EIR must
21
also contain ―[a] general description
of the project‘s technical, economic, and environmental
22
characteristics,
considering the principal
engineering proposals
if any and supporting public
service
23
facilities.‖ (Cal. Code Regs. tit. 14, § 15124(c).) An ―accurate, stable and finite project description
24
is the sine qua non of an informative and legally sufficient EIR.‖
(County of Inyo v. City of Los
25
Angeles,
(1977) 71 Cal. App. 3d 185, 192).
26
85.
The EIR approved by ABAG and MTC fails
to provide a clear and accurate
27
description of the Project,
in violation of CEQA. For example: 28
Verified Petition
for Writ of Mandate 22
1
a) The project description
of the EIR is not ―accurate, stable and finite‖ – in the
2
EIR and responses
to comments,
the agencies have failed to consistently refer
3
to the Plan as an RTP or an SCS. The analysis changes between analyzing
the
4
SCS as a distinct project
and analyzing the
RTP.
5
b) Despite the eventual approval of goods movement language in the final Plan,
6
and federal requirements that RTPs integrate goods
movement measures, the
7
project description of the EIR fails to contain
any discussion of goods
8
movement.
9
86. In responding to
CBE‘s comment raising its concerns with
the treatment of goods
10
movement issues
under the Plan, ABAG and MTC contend
that the Plan includes ―specific Trade
11
Corridor Improvement Fund (TCIF) projects,‖ that were identified through MTC‘s 2004 and 2009
12
goods movement analyses. However, none
of these projects
are
discussed in the project
description.
13
87. The agencies also contend that the proposed Plan already includes ―numerous
14
projects that provide benefits to goods movement,‖ such as ―grade separations, investments at the
15
Oakland Army Base, dredging in
Contra Costa County serving the Port of Stockton, highway
16
improvements such as truck lanes and projects that improve
freeway operations.‖
Yet none of these
17
measures are addressed individually or collectively in the
project description.
18
88. The failure to describe the
Project accurately prevented
the EIR from including,
19
among other things, an
accurate analysis
and discussion of the environmental impacts from
the
20
proposal, appropriate mitigation measures, and consideration
of a reasonable range of alternatives to
21
the Project.
22
89. These omissions prevent the EIR from meeting CEQA‘s goals
of providing an
23
―accurate, stable and finite project description,‖ and prevent the public from being fully appraised of
24
the environmental impacts of the
proposed Plan.
25
90. The agencies‘ action certifying the EIR without an adequate project
description
26
constitutes a prejudicial abuse of discretion, since they failed to proceed in the manner required by
27
CEQA.
28
Verified Petition
for Writ of Mandate 23
1
THIRD
CAUSE
OF ACTION
2
Violation
of CEQA (Public Resources Code
Sections 21000 et seq.
and
the
CEQA Guidelines,
Cal. Code of Regs., Tit. 14, Sections 15000 et seq.
3
ABAG and MTC Failed to
Evaluate Environmental
Effects
of Proposed Project
4
91.
Petitioners re-allege, as
if fully set
forth
herein, each
and every allegation
contained 5
in the preceding paragraphs.
6
92.
An EIR is intended to ―inform other governmental agencies and the public
generally 7
of the environmental impact of a proposed project.‖
(Cal. Code Regs. tit. 14, §15003(c)).
The
8
obligation to consider
the impacts of a particular ―project‖ are reinforced in the guidelines governing 9
evaluation of the significance of
impacts
from greenhouse gas emissions. (Cal. Code
Regs. tit. 14, 10
§15064.4(b)). 11
93.
The EIR approved by MTC
and ABAG fails
to evaluate the environmental
effects of 12
the project, Plan Bay Area,
in violation of CEQA. For example: 13
a)
The EIR fails
to focus its analysis on the Plan‘s effects on greenhouse gas
14
emissions in the transportation
sector. When analyzing the
Plan‘s effects
on 15
greenhouse gas
emissions trajectories,
the EIR
looks at emissions from 16
various vehicle classes
(i.e.,
passenger vehicles, trucks, buses), and then 17
subtracts emissions reductions
that will be achieved from
measures 18
implemented separately from the Plan, such as the Low Carbon Fuel
Standard 19
and Pavley Clean
Car standards. It
is only these reductions
from other 20
programs that result in a
finding that transportation greenhouse gas
emissions 21
will decline by 2040. However, the EIR makes
it appear that the
reduction in 22
greenhouse gas
emissions is due to the Plan itself.
23
b)
The EIR fails
to focus its analysis on the
Plan‘s effects
in its analysis of 24
greenhouse gas
emissions in the land use sector.
When
analyzing the
Plan‘s
25
effects on greenhouse gas emissions trajectories, the EIR looks at emissions 26
from households, commercial,
office and industrial land uses,
and then 27
subtracts emissions that
will be achieved through AB 32
Scoping Plan 28
Verified Petition
for Writ of Mandate 24
1
reductions.
It
is only these reductions
from other programs that result
in a
2
finding that land use greenhouse gas
emissions will decline by 2040.
3
However, the EIR
makes it appear that
the reduction in greenhouse
gas
4
emissions is due to the
Plan itself.
5
c) The EIR misinforms the public by stating that
the trajectory of
the
plans
6
greenhouse gases emissions
complies with Executive Order S-3-05 and
7
Executive Order B-16-2012;
and other laws and policies
aimed
at attaining
8
greenhouse gas
emissions reductions.
9
94. These failures precluded informed
decision-making regarding the effects of the
Plan,
10
including the informed
comparison of reasonable alternatives
to the Project.
11
95. The agencies‘ action
certifying the
Project‘s EIR without
providing proper
12
information to support their conclusions constitutes a prejudicial
abuse of discretion, since they
13
failed to proceed in the manner
required by CEQA.
14
FOURTH CAUSE OF ACTION
15
Violation
of CEQA - Public Resources Code
Sections 21000 et seq.
and
the
CEQA Guidelines,
Cal. Code of Regs., Tit. 14, Sections
15000 et seq.
16
ABAG and MTC Provided an Improper Description
of
the Baseline Conditions.
17
96.
Petitioners re-allege, as
if fully set
forth
herein, each
and every allegation
contained 18
in the preceding paragraphs.
19
97.
The baseline is the
starting point from which
to measure whether an
impact may be
20
environmentally significant. To this end, CEQA and its implementing guidelines require that an EIR
21
―include a description
of the physical environmental conditions in the vicinity of the project, as they
22
exist
at the time the notice of
preparation is published, or, if no notice of
preparation
is published, at
23
the time environmental analysis is commenced, from both a local and regional perspective. This 24
environmental setting
will normally constitute
the baseline physical
conditions by which a lead
25
agency determines whether an impact is significant.‖ (Cal. Code Regs. tit. 14, § 15125(a).) ―The 26
EIR must demonstrate that the
significant environmental impacts
of the proposed project
were
27
28
Verified Petition
for Writ of Mandate 25
1
adequately investigated and discussed
and it must permit the significant effects
of the project to be
2
considered in the full environmental context.‖ (Id. § 15125(c).)
3
98. ABAG and
MTC failed to properly describe the baseline physical conditions in the
4
EIR, and, as
a result, the Project‘s impacts
could not be properly understood. In particular,
the
flaws
5
in the EIR‘s baseline description include,
but are not limited to:
6
a) A failure to
describe the baseline for goods movement
currently occurring in
7
the Bay Area. The EIR fails to provide any information
on the volume of
8
goods currently moving
through the Bay Area region,
and therefore, interferes
9
with understanding the environmental impacts
that would result from the
10
goods movement measures that have been adopted as
part of the plan.
11
99. The failure to properly describe the baseline prevented the
EIR from adequately
12
investigating and
discussing the significant environmental impacts
of the proposed Project,
or from
13
making a determination that these effects are not
significant and/or will
be mitigated to less than
14
significant levels.
15
100. The agencies‘ action certifying the Project‘s EIR without
an adequate
description of
16
the baseline constitutes a prejudicial abuse of discretion,
since they failed to proceed
in the manner
17
required by CEQA.
18
FIFTH
CAUSE OF ACTION
19
Violation
of CEQA (Public Resources Code
Sections 21000 et seq.
and
the
CEQA Guidelines,
Cal. Code of Regs., Tit. 14, Sections 15000 et seq.
20
ABAG and MTC Failued to
Evaluate the Significant
Environmental Effects of the Project
21
101.
Petitioners re-allege, as
if fully set
forth
herein, each
and every allegation
contained 22
in the preceding paragraphs.
23
102.
An EIR must clearly identify and fully analyze the proposed project‘s significant
24
environmental effects, including direct
and indirect significant effects, giving due consideration
to 25
both short- and long-term
effects.
(Pub. Res. Code §§ 21100(b), 21002.1; Cal. Code Regs. tit. 14, § 26
15126.2(a)). ―Significant effect on the environment‖ is defined as ―a substantial, or potentially
27
substantial, adverse
change in any of the
physical conditions within the area
affected by the project
28
Verified Petition
for Writ of Mandate 26
1
including land, air, water, minerals, flora,
fauna, ambient
noise, and objects of historic or aesthetic
2
significance.‖
(Cal. Code Regs. tit. 14, § 15382.)
3
103. The discussion of significant
environmental impacts should
include:
4
[R]elevant
specifics of the area,
the resources involved, physical changes,
alterations to ecological
systems,
and changes
induced in population
distribution, population
5
concentration, the human use of the land
(including commercial and residential
development), health
and
safety problems
caused by the physical changes, and
other
6
aspects of the resource base such
as water, historical resources,
scenic
quality,
and public services. The EIR shall
also analyze any significant environmental effects
the
7
project might cause
by
bringing development and people
into the area affected.
Similarly,
the EIR should evaluate any potentially significant
impacts
of locating
8
development in other areas susceptible
to hazardous conditions
(e.g., floodplains, coastlines, wildfire risk
areas) as identified in authoritative hazard
maps, risk
9
assessments or in land use plans
addressing
such hazards areas.
10 (Cal. Code Regs.
tit. 14, § 15126.2(a).)
11
104. An EIR must contain
―a sufficient degree of analysis to provide decision-makers with
12
information which enables
them to make a decision which intelligently takes
account
of
13
environmental consequences.‖ (Cal. Code Regs. tit. 14, § 15151). Absent a
statement of overriding
14
considerations
supported by substantial
evidence in
the record, public agencies must refrain from
15
approving projects with significant environmental effects
if there are feasible
alternatives or
16
mitigation measures that can substantially lessen or
avoid those effects. (Cal. Code
Regs. tit. 14 §§
17
15091, 15092). Failure to adequately identify and analyze all
significant impacts impedes
the lead
18
agencies‘ ability to
identify and
analyze all
feasible mitigation
measures and alternatives.
19
105. The EIR
for the Project fails to adequately disclose or
evaluate a variety of significant
20
environmental impacts
including, but not limited to:
21
a) The EIR fails
to adequately disclose the significant effects from
the Plan‘s
22
effects on transportation greenhouse
gas emissions through 2040. It is only by
23
subtracting
emissions reductions
that will be achieved
from measures
24
implemented separately from the Plan, such as the Low Carbon Fuel
Standard
25
and Pavley Clean
Car standards, that the EIR concludes that there will be no
26
significant effects
from transportation greenhouse gas emissions. Without
27
these reductions, the Plan will result in an increase of 5,571,000
metric tons of
28
greenhouse gas
emissions from the transportation sector. However,
the
EIR
Verified Petition
for Writ of Mandate 27
1
fails to analyze and/or accurately present the
impacts of the Plan alone on
2
transportation greenhouse gas
emissions.
3
b) The EIR fails to adequately disclose
the significant
effects
from the Plan‘s
4
effects on
land use greenhouse gas emissions through 2040. It
is only by
5
subtracting emissions that will be achieved
through AB 32 Scoping Plan
6
reductions, that the EIR
concludes
that there will be no significant effects
7
from land use
greenhouse gas emissions. It is only these
reductions from
8
other programs that
result in
a finding that land use greenhouse gas emissions
9
will decline by 2040. Without these reductions, the Plan will result in an
10
increase in 6,769,000 metric tons of greenhouse gas emissions from various
11
land uses
(i.e., residential use, and
commercial, office and industrial uses).
12
However, the EIR
fails
to analyze and/or accurately present
the impacts of the
13
Plan alone on land use
greenhouse gas emissions.
14
c) The same programs
(Pavley, LCFS,
and AB 32 Scoping Measures) are taken
15
into consideration
when
analyzing whether the Plan
meets the goals of
16
Executive
Order S-3-05 and
Executive Order B-16-2012. Without reductions
17
from
Pavley, LCFS
and
AB 32, land use and transportation
emissions in the
18
region
are expected to increase,
and the Plan does not meet
the targets set
19
forth
in these executive
orders. The EIR fails
to disclose this significant
20
effect. Even assuming,
these reductions can
be taken,
the EIR still fails to
21
disclose that the plan does not create a trajectory to allow
the state to meet the
22
goals of Executive
Order S-3-05
and Executive Order
B-16-2012.
23
d) The EIR
improperly fails to conclude that there will
be significant impacts
24
under Significance Criteria 2.5-2, 2.5-3 and
2.5-4, which
evaluate aggregate
25
greenhouse gas
emissions trends and compliance with
other emissions
26
reductions laws.
27
28
Verified Petition
for Writ of Mandate 28
1
e) The EIR fails
to disclose the significant impacts on greenhouse gas
emissions
2
and air quality,
on a local and regional level, from the
expected increase in
the
3
volume of goods movement
in the region.
4
f) The EIR fails
to disclose the significant impact
on the transportation
5
infrastructure and land-use allocations
from the expected increase in
the
6
volume of goods movement
in the region.
7
g) The EIR fails
to disclose the health impacts on low-income and minority
8
communities situated
in the vicinity of key goods movement
hubs, such as
9
airport, seaports, highways and railways.
10
h) The EIR
fails to disclose the environmental and
health effects
caused by
11
displacement, despite
MTC and ABAG‘s
Equity Analysis, concluding that
12
there will be
a greater risk
of displacement under
the Plan.
13
i) The EIR
fails to properly disclose
the impacts of the miles of new
freeway
14
lanes
proposed in the Plan.
15
106. The agencies‘ action certifying the Project‘s EIR without
fully analyzing the Project‘s
16
significant environmental impacts
constitutes a prejudicial abuse of discretion, since
they failed to
17
proceed in the manner required
by
CEQA.
18
SIXTH CAUSE OF
ACTION
19
Violation
of CEQA - Public Resources Code
Sections 21000 et seq.
and
the
CEQA Guidelines,
Cal. Code of Regs., Tit. 14, Sections 15000 et seq.
20
ABAG and MTC Failed to
Consider and Discuss the Plan’s Cumulative Impacts
21
107.
Petitioners re-allege, as
if fully set
forth
herein, each and
every allegation
contained 22
in the preceding paragraphs.
23
108.
CEQA has specific requirements that must be satisfied in any cumulative impacts 24
analysis. An EIR must discuss
the ―cumulative impacts‖
of a project when the project‘s incremental
25
effects are ―cumulatively considerable.‖ (Pub. Res. Code § 21083(b)(2); Cal. Code Regs. tit. 14, §
26
15130(a).) A ―cumulative impact‖ is ―an impact which is created as a result of the combination of
27
the project evaluated in the EIR together with other projects causing
related impacts.‖ (Cal. Code
28
Verified Petition
for Writ of Mandate 29
1 Regs. tit. 14, § 15130(a)). ―Cumulatively considerable‖ means that ―the incremental effects of an
2 individual
project are significant when
viewed
in connection with the effects of past
projects, the
3
effects of other current projects, and the effects of probable future projects.‖
(Pub. Res. Code §
4 21083(b)(2);
Cal. Code Regs. tit. 14, § 15065(a)(3).)
5
109. A ―cumulative impacts‖ analysis must include
―[a] list of past, present and probable
6
future projects producing
related or cumulative impacts, including, if necessary, those
projects
7 outside the control of the agency,‖
or ―[a] summary of projections contained in an adopted local,
8 regional or
statewide plan, or related
planning document, that describes
or evaluates
conditions
9
contributing to the cumulative effect.‖ (Cal. Code Regs. tit. 14, § 15130(b)(1)).
10
110. The EIR
at issue in this case fails to consider
or discuss properly the
Project‘s
11
cumulative impacts. Among many shortcomings:
12
a) The agencies
contentions that they have satisfied CEQA‘s mandate to
13
consider the ―cumulative impacts‖ of the Plan by folding a cumulative
14
impacts analysis throughout the EIR, and that the plan is a ―cumulative Plan
15
by definition,‖
do not meet the specific requirements of CEQA.
The
EIR fails
16
to set forth a cumulative impacts
analysis which discusses the cumulative
17
impacts of the various aspects
of the Plan as it will be implemented.
18
b) The EIR specifically fails
to evaluate the cumulative impacts
from goods
19
movements measures
that are included in the Plan. This
failure is especially
20
problematic, given
that the land use and
transportation
planning decisions
21
related to goods movement will necessarily affect other aspects of the Plan,
22
such as the land use and transportation planning decisions
made under other
23
aspects of the Plan, as well
as the air quality, greenhouse gas emissions and
24
other analyses conducted in the
EIR.
25
c) The EIR fails
to comply with CEQA‘s requirement that
a cumulative impacts
26
analysis include either ―[a] list of past, present and probable future projects
27
producing related
or cumulative impacts, including,
if necessary, those
28
projects outside the control of the agency,‖ or ―[a] summary of projections
Verified Petition
for Writ of Mandate 30
1
contained
in an adopted local, regional
or statewide plan, or
related planning
2
document, that describes
or evaluates conditions
contributing to the
3
cumulative effect.‖
(Cal. Code Regs. tit. 14, § 15130(b)(1)).
The agencies‘
4
statement that the cumulative impacts
analysis is folded in throughout the
EIR
5
fails to satisfy the requirements of CEQA, and the EIR
fails
to provide either
6
the required list of projects
or summary of projections.
7
d) The EIR fails
to consider the cumulative socioeconomic impacts
from the
8
Project and other proposed developments
in the Project area on
the existing
9
working-class communities of color in the neighborhoods that
are affected by
10
goods movement measures.
11
e) The EIR fails
to consider the cumulative impacts from
displacement occurring
12
under the Plan.
13
f) The EIR fails
to consider the cumulative impacts of the miles
of new freeway
14
lanes proposed in the
Plan.
15
111. The agencies‘ action certifying the Project‘s EIR without
fully analyzing the
16
cumulative impacts constitutes a prejudicial
abuse of discretion,
since they failed to proceed in the
17
manner required
by
CEQA.
18
SEVENTH CAUSE OF
ACTION
19
Violation
of CEQA - Public Resources Code
Sections 21000 et seq.
and
the
CEQA Guidelines,
Cal. Code of Regs., Tit. 14, Sections 15000 et seq.
20
ABAG and MTC Failed to
Consider, Discuss, and Adopt
Feasible Mitigation
Measures
21
to
Minimize Significant Environmental Effects
22
112. Petitioners re-allege, as
if fully set
forth
herein, each
and every allegation
contained
23
in the preceding paragraphs.
24
113. A fundamental purpose of CEQA is to ―[p]revent significant, avoidable
damage to the
25
environment by requiring changes
in projects
through the use of alternatives
or mitigation
26
measures.‖ (Cal. Code Regs. tit. 14, § 15002(a)(3).)
Consequently, an EIR must identify feasible
27
mitigation measures in order to substantially lessen or avoid
otherwise significant environmental
28
effects. (Pub. Res. Code §§ 21002, 21081(a); Cal. Code Regs. tit. 14, § 15126.4(a).) ―Formulation
Verified Petition
for Writ of Mandate 31
1 of mitigation measures should not be deferred until some future
time.‖ (Cal. Code Regs. tit. 14, § 2 15126.4(a)(1)(B).)
3
114. Public agencies
should not approve projects as proposed if there
are feasible
4 alternatives
or mitigation measures available
to substantially lessen
the significant environmental
5
impacts of the project.
(Pub.
Res. Code §§ 21002, 21081(a).)
If
the project is changed to
6 incorporate
mitigation to
reduce or avoid
significant
effects
on the environment, the public agency
7
shall adopt a reporting or monitoring program for the
mitigation adopted. (Pub. Res.
Code §
8 21081.6(a).)
9 115. The EIR fails
to identify or consider
adequate, feasible mitigation measures to
reduce
10
the Project‘s significant environmental impacts
with respect to measures
taken
to address the
11
movement of goods through the region.
Despite identifying various
measures that are being taken to
12
address goods movement issues
under the Plan, the EIR fails
to discuss how such measures will
13
mitigate the projected effects
of goods
movement through the region.
14
116. Additionally,
the agencies have stated
that the Plan will continue
to study the effects
15
of goods movement
and will identify future recommendations for addressing goods
movement.
16
Given that certain goods movement
measures are already being undertaken under
the Plan, and
17
given the projected
increases
in goods movement through the region, the
EIR impermissibly defers
18
formulation of mitigation measures for goods
movement until a later time.
19
117. The EIR
was improperly certified, as
it elects to proceed with implementation of the
20
proposed Plan, even though other alternatives
outperform the Plan with
respect to certain
criteria.
21
For example, the ―Environment, Equity and Jobs‖ alternative will result in the lowest amount of
22
Vehicle Miles Travelled (―VMT‖) when compared to the Plan and other alternatives. Draft EIR at
23
3.1-22. This alternative will also result
in the greatest transit
ridership out of any plan (5% more
24
than
the proposed Plan). This
alternative is expected
to have the greatest reduction in on-the-road
25
transportation GHG emissions
from 2010 to 2040. It
is also expected to have the greatest reduction
26
in greenhouse
gas emissions between
2010 and
2040.
27
118. Furthermore, despite concluding that ―significant and unavoidable‖
impacts would
28
result due to the
Plan‘s increase
in transportation investments,
population, and land-use
Verified Petition
for Writ of Mandate 32
1
developments in areas subject to sea-level
rise, the EIR also fails
to propose enforceable mitigation
2
measures to address these impacts. Instead,
the ABAG and MTC defer
to local agencies to adopt
3
proposed mitigation measures.
4
119. The EIR
also fails to identify and consider
adequate, feasible mitigation measures to
5
protect against
displacement.
6
120. The agencies‘ action certifying the Project‘s EIR without
proper mitigation measures
7
constitutes a prejudicial abuse of discretion, since they failed to proceed in
the manner required by
8
CEQA.
9
EIGHTH CAUSE OF ACTION
10
Violation
of CEQA (Public Resources Code
Sections 21000 et seq.
and
the
CEQA Guidelines,
Cal. Code of Regs., Tit. 14, Sections
15000 et seq.
11
ABAG and MTC
Improperly
Piecemealed the Analysis For The Project
12
121.
Petitioners re-allege, as
if fully set
forth
herein, each
and every allegation
contained 13
in the preceding paragraphs.
14
122.
CEQA defines ―Project‖ as ―the whole of an action, which has a potential
for 15
resulting in either a direct physical
change in the
environment, or a reasonably foreseeable indirect 16
physical change in the environment.‖ (Cal. Code Regs. tit. 14, § 15378(a); Pub. Res. Code § 21065). 17
―‗Project‘ is given a broad interpretation
in order to maximize protection of the environment.‖
18
(McQueen v. Board of Directors of the Mid-Peninsula Regional Open Space District
(1988)
202 Cal. 19
App. 3d 1136,
1143.)
20
123.
CEQA forbids segmenting a project
into separate actions in order to avoid 21
environmental review of the ―whole of the action.‖
Furthermore, CEQA requires the lead agency to
22
consider
the entire project at the earliest possible stage, including all reasonably foreseeable phases
23
of the project. (Laurel
Heights, 47 Cal. 3d at 396.) 24
124.
By deferring study of goods
movement issues, and failing to address the goods
25
movement
measures to be undertaken or the
mitigation measures
to be applied to alleviate the
effects 26
of goods movement in the EIR, ABAG and MTC have engaged in an improper ―piecemeal‖
analysis 27
in the EIR. 28
Verified Petition
for Writ of Mandate 33
1
125. The agencies‘
action
certifying the
Project‘s EIR without
properly considering all
2
segments of the Project constitutes
a prejudicial abuse of discretion, since they have failed
to
3
proceed in the manner required
by
CEQA.
4
NINTH CAUSE OF
ACTION
5
Violation
of the California
Government Code
(California Government Code, Tit. 7, Div. 1, Ch. 2.5, sections 65080 et seq.)
6
ABAG and MTC
Improperly
Adopted a Transportation Plan
7
that
Failed
to Include all the Required Elements
8
126. Petitioners re-allege,
as if fully set
forth
herein, each
and every allegation
contained
9
in the preceding paragraphs.
10
127. The Government Code requires transportation agencies to ―prepare and adopt a
11
regional transportation plan directed at achieving
a coordinated and
balanced
regional transportation
12
system, including,
but not limited to, mass transportation,
highway, railroad,
maritime, bicycle,
13
pedestrian, goods
movement, and aviation facilities and services.‖ (Cal. Government Code §
14
65080(a)(emphasis added).)
15
128. Further, ―the regional
transportation plan shall consider factors specified in Section
16
134 of Title 23 of the United States Code.‖ (Cal. Government Code § 65080(a). ) Section 134 of
17
Title 23 of the United States
Code requires that the planning
process include consideration of
18
projects and strategies that will ―increase the accessibility and mobility of people and for freight,‖
19
and ―enhance the integration and connectivity of the transportation system, across and between
20
modes, for people and freight.‖
(23 U.S.C. § 134(h)(1)(D), (F).)
The implementing regulations
for
21
Section 134 of Title 23 of the United States
Code require an integrated plan that takes into account
22
the movement of people and goods—RTPs must ―include both long-range and short-range
23
strategies/actions that lead to the development
of an integrated multimodal transportation system to
24
facilitate
the safe and efficient
movement of people and goods in addressing current and future
25
transportation demand.‖ (23 C.F.R. § 450.322(b).)
26
129. Section 134
of Title 23 of the United States
Code also requires the planning process
27
to include projects and strategies that ―protect and enhance the environment, promote energy
28
conservation,
improve the quality of
life,
and promote consistency between
transportation
Verified Petition
for Writ of Mandate 34
1 improvements and State and local planned growth and economic development patterns.‖
(23 U.S.C. 2 § 134(h)(1)(E).)
3
130. Despite projections of
economic and population
growth and studies—including by
4
MTC—detailing the importance of goods movement
to the region, the RTP
fails to include any
5
meaningful discussion of or plan for moving freight throughout the region, and
mitigation measures
6
for this movement. As
a result, the RTP also fails
to include any discussion of or plan for an
7
integrated, coordinated, connected,
and balanced regional intermodal system to ―facilitate the safe
8
and efficient movement of people and goods‖ into the future.
9
131. The agencies‘
approval of a Plan that
fails to integrate goods
movement in violation
10
of the California Government Code
constitutes an abuse of discretion.
11
REQUEST FOR RELIEF
12
Wherefore,
Petitioners respectfully request relief as follows:
13
1. A writ of mandate
or peremptory writ ordering the agencies to:
14
vacate and set aside
their approval
and certification
of the EIR for the
Plan Bay Area and the
15
approval of Plan Bay Area; and refrain from
granting any further
approvals for the Plan
Bay
Area
16
unless and until the agencies
fully comply with
the requirements of CEQA; and
17
2. A permanent injunction enjoining the agencies
from
implementing the Plan Bay Area
18
until a lawful approval has been
obtained and that the requirements
of CEQA have been
fulfilled;
19
and
20
3. A declaratory judgment
that
the agencies
violated CEQA in approving the Plan
Bay
21
Area; and
22
4. For fees and
costs incurred
herein,
including reasonable
attorney‘s fees as authorized
23
by Code of Civil Procedure section
1021.5; and 24 //
25
//
26
//
27
//
28
Verified Petition
for Writ of Mandate 35
1 5. All such other equitable
or legal relief that the Court considers
just and proper
.
2 Respectfully submitted,
3
DATED: August 19,2013
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2_files/image006.jpg)
IRENE V. GUTIERREZ
Attorneys for Petitioners Sierra Club and Communities for a Better Environment
MAYA GOLDEN-KRASNER SHANA LAZEROW
Attorneys for Petitioner Communities for a Better
Environment
2_files/image007.gif) 2_files/image008.gif)
Verified Petition for Writ of Mandate 36
2 I, Nile Malloy, hereby declare:
VERIFICATION
2_files/image009.gif) 2_files/image010.gif)
3 Iam the Northem
California Program Director
of Communities for a Better Environment.
4 The facts alleged in the above petition for writ of mandate are made on information and belief, and
5 are true to my
personal knowledge.
6 Ideclare under penalty
of perjury under the laws of the State of Califomia that the above is
7
tnte and correct
and that this verification is executed on this
day of August 2013 at
8
(1hl , Califomia.
9
10 11:7
Nile Malloy
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t6
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Verified Petition for Writ of Mandate
ALASKA CALIFORNIA FLORIDA MID-PACIFIC
NORTHEAST NORTHERN ROCKIES NORTHWEST ROCKY MOUNTAIN
WASHINGTON, D.C. INTERNATIONAL
August 16, 2013
VIA CERTIFIED MAIL.
RETURN RECEIPf REQUESTED
Mr. Mark Luce, President
Association of Bay Area Governments 101 Eighth Street
Oakland, CA 94607
Re: Notice of Intent to File CEQA Petition
Dear Mr. Luce:
PLEASE TAKE NOTICE,
under Public Resources
Code section 21167.5,
Communities for a Better
'Environment and the Sierra Club, intend to file a verified petition
for writ of mandate
against Association of Bay Area Governments ("ABAG"), and the Metropolitan Transportation Commission ("MTC"), in Alameda County
Superior Court on August
19,
2013.
The petition will allege that Respondents violated
the California Environmental Quality Act ("CEQA") in connection with the environmental impact report ("EIR") for Plan Bay Area. The petition will seek writ relief to: (a) to vacate and set aside agencies' approval
and certification of the EIR for the Plan Bay Area and
their approval of Plan Bay Area; and (b) to refrain from granting any further
approvals for the Plan Bay Area Project unless and until the agencies fully comply with the requirements of CEQA. It will also seek declaratory and injunctive relief,
as well as costs and all other equitable or legal relief deemed proper.
2_files/image011.gif) Sincerely,
Irene Gutierrez Will Rostov
Counsel for Communities for a Better Environment
and Sierra Club
CALIFORNIA
OFFICE 50 CALIFORNIA STREET, SUITE 500 SAN FRANCISCO, CA 94111
T: 415.217.2000 F: 415.217.2040 CAOFFICE@EARTHJUSTICE.ORG WWW.EARTHJUSTICE.ORG
2_files/image012.gif) 2_files/image013.gif) 1 PROOF OF SERVICE
2 I am a citizen of the United
States of America and a resident of the City and County of San
3
Francisco; I am over the age of 18 years and not a party to the within entitled action; my business
4
address is 50 California
Street, Suite 500, San
Francisco, California.
5
I hereby certify that on August 16, 2013, I served by via Certified Mail/Return Receipt
6
Requested one true copy of the document herein
on the person listed below:
7
Mr. Mark Luce, President
Association of Bay Area Govermnents
8
101 Eighth
Street
9 Oakland, CA 94607
10
I certify under penalty
of perjury that the foregoing
is true and correct.
Executed on
11
August 16, 2013 in San Francisco,
California.
12
.Wroey
W. Wall
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15
16
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24
25
26
27
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PROOF OF SERVICE
ALASKA CALIFORNIA FLORIDA MID-PACIFIC NORTHEAST NORTHERN ROCKIES NORTHWEST ROCKY MOUNTAIN
WASHINGTON, D .C . INTERNATIONAL
August 16, 2013
VIA CERTIFIED MAIL. RETURN
RECEIPT REQUESTED
Mr. Steve Heminger, Executive Director Metropolitan Transportation Commission 101 Eighth Street
Oakland, CA 94607
Re: Notice of Intent to File CEQA Petition
Dear Mr. Heminger:
PLEASE TAKE NOTICE,
under Public Resources
Code section 21167.5,
Communities for a Better
Environment and the Sierra Club, intend to file a verified petition
for writ of mandate
against Association of Bay Area Governments ("ABAG"), and the Metropolitan Transportation Commission ("MTC"), in Alameda County Superior Court on August 19, 2013.
The petition will allege that Respondents violated
the California Environmental Quality Act ("CEQA") in connection with the environmental impact report ("EIR") for Plan Bay Area. The
petition will seek writ relief
to: (a) to vacate and set aside agencies' approval
and certification of the EIR for the Plan Bay Area and their approval of Plan Bay Area; and (b) to refrain from granting any further approvals
for the Plan Bay Area Project unless
and until the agencies fully comply with the requirements of CEQA. It will also seek declaratory and injunctive relief,
as well as costs and all other equitable
or legal relief deemed proper.
2_files/image014.gif) Sincerely,
Irene Gutierrez Will Rostov
Counsel for Communities for a Better Environmertt
and Sierra
Club
CALIFORNIA
OFFICE 50 CALIFORNIA STREET, SUITE 500 SAN
FRANCISCO, CA 94111
T: 415.217
.2000 F: 415 .217.2040 CAOFFICE@EARTHJUSTICE.ORG WWW.EARTHJUSTICE.ORG
2_files/image015.gif) 2_files/image016.gif) 1 PROOF OF SERVICE
2 I am a citizen of the United States
of America and a resident
of the City and County of San
3
Francisco; I am over the age of 18 years and not a party to the within entitled action;
my business
4
address is 50 California
Street, Suite 500, San
Francisco, California .
5
I hereby certify that on August 16, 2013, I served by via Certified Mail/Return Receipt
6 Requested one true copy of the document herein
on the person listed below:
7 Mr. Steve Heminger, Executive Director Metropolitan Transportation Commission
8 101 Eighth Street
9 Oakland, CA 94607
10
I certify under penalty of perjury that the foregoing
is true and correct. Executed
on
11
August 16, 2013 in San Francisco, California.
12
13 m W. Wall ---.
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27
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PROOF OF SERVICE
ALASKA CALIFORNIA
FLORIDA MID-PACIFIC NORTHEAST
NORTHERN ROCKIES NORTHWEST
ROCKY MOUNTAIN WASHINGTON,
D.C. INTERNATIONAL
August 19, 2013
VIA CERTIFIED MAIL. RETURN
RECEIPT REQUESTED
Hon. Kamala
Harris
Office of the Attorney General 1300 "I" Street
Sacramento, CA 95814-2919
Re: Notice of Intent to File CEQA Petition
Dear Attorney
General Harris:
PLEASE TAKE NOTICE,
under Public Resources
Code§ 21167.7 and Code of Civil
Procedure§ 388, that on August 19, 2013,
Communities for a Better Environment ("CBE"), and
The Sierra Club, collectively ("Petitioners"), filed
a verified petition
for writ of mandate and complaint against Association of Bay Area Governments ("ABAG"), and the Metropolitan Transportation Commission ("MTC"), collectively ("Respondents"), in Alameda County Superior Court.
The petition alleges
that Respondents violated
the California Environmental Quality Act
("CEQA") in connection with the environmental impact report ("EIR") for Plan Bay Area.
A copy of the petition
and complaint is attached to this notice.
2_files/image017.gif) Sincerely,
Irene Gutierrez Will Rostov
Counsel for Communities for a Better Environment
and Sierra
Club
CALIFORNIA
OFFICE 50 CALIFORNIA STREET, SUITE 500 SAN FRANCISCO, CA 94111
T: 415.217 .2000 F: 415.217.2040 CAOFFICE@EARTHJUSTICE .ORG WWW.EARTHJUSTICE.ORG
2_files/image018.gif) 2_files/image019.gif) PROOF OF SERVICE
2 I am a citizen
of the United States of America and a resident
of the City and County
of San
3
Francisco; I am over the age of 18 years and not a party to the within entitled
action; my business
4
address is 50 California Street,
Suite 500, San Francisco, California.
5
I hereby certify
that on August 19,2013, I served by via Cetiified Mail/Return Receipt
6
Requested one true copy of the document
herein on the person listed
below:
7
Hon. Kamala HaiTis
Office of the Attorney
General
8
1300 "I" Street
9
Sacramento, CA 95814-2919
10
I cetiify under penalty of perjury that the foregoing
is true and correct. Executed
on
11
August 19, 2013 in San Francisco, California.
12 2_files/image020.jpg)
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PROOF OF SERVICE
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