LAUREL HEIGHTS IMPROVEMENT ASSOCIATION OF SAN FRANCISCO, INC., etc., Plaintiff and Appellant, v. REGENTS OF the UNIVERSITY OF CALIFORNIA, Defendant and Respondent.
In this case we hold that approval of an environmental impact report constitutes an abuse of discretion when the report provides an inadequate description of the project and provides insufficient discussion of project alternatives, and when there is no substantial evidence to support the conclusion that potential environmental impacts would be mitigated to a level of insignificance.
The Laurel Heights Improvement Association of San Francisco, Inc. (Association) appeals from an order denying a petition for writ of mandate challenging the approval of an environmental impact report (EIR) by respondent Regents of the University of California (Regents). The EIR involves the proposed relocation of University of California, San Francisco (UCSF) biomedical research facilities from their present location on the UCSF campus on Parnassus Avenue to a building in the nearby Laurel Heights neighborhood. The Association's petition, filed under the aegis of the California Environmental Quality Act (CEQA) (Pub. Resources Code § 21000 et seq.), contested the informational sufficiency of the EIR and challenged its conclusion that the project's anticipated significant environmental impacts—including the venting of toxic and radioactive substances into the atmosphere—would be mitigated to a level of insignificance. The trial court concluded the EIR complied with the provisions of CEQA and was properly approved. We disagree, and reverse the order denying the petition for writ of mandate.
This project has caused intense, heated debate in the Laurel Heights neighborhood. The debate has focused largely on whether research employing toxic chemicals, carcinogens and radioactive materials is too high-risk to be conducted in a densely populated residential neighborhood. This question, as well as the philosophical debate over the use of hazardous substances, are essentially matters of a political and social nature which, of course, are not before us. At the present time there is no legal prohibition on the type of research conducted by the Regents, nor is there a prohibition on its being conducted in areas of high population density. The value of research in biomedicine, microbiology, immunology and related fields is not disputed. Such activities are, however, subject to the stringent requirements of CEQA and especially the informational disclosure and the analytical discussion of an EIR. The limited question we decide in this case is whether the EIR at issue is in compliance with California's environmental protection statutes and administrative guidelines. In other words, we decide whether the Regents have provided the public, including the Laurel Heights community, with sufficient information concerning the project and an adequate analysis of its anticipated impact on the environment.
We scrutinize the EIR with the aid of familiar points of reference. “CEQA demonstrates a legislative intent to maintain ‘a quality environment for the people of this state’ and to regulate conduct ‘found to affect the quality of the environment’ ․ ‘so that major consideration is given to preventing environmental damage, while providing a decent home and satisfying living environment for every Californian.’ ” (Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 615, 216 Cal.Rptr. 502 [quoting Pub. Resources Code, § 21000, subds. (a), (g) ].) CEQA “is to be interpreted broadly in order to afford the fullest protection to the environment consistent with the reasonable scope of the statutory language.” (Ibid.; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 83, 118 Cal.Rptr. 34, 529 P.2d 66; Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 502 P.2d 1049.)
Generally, an EIR is an essential prerequisite of any project with a potential significant effect on the environment. (Pub. Resources Code, §§ 21000, 21151; Cal.Admin.Code, tit. 14, §§ 15064, 15081, 15082.) 1 The EIR is the “heart of CEQA”, an “environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.” (County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810, 108 Cal.Rptr. 377; see Santiago County Water Dist. v. County of Orange (1981) 118 Cal.App.3d 818, 822, 173 Cal.Rptr. 602.) An EIR is an “informational document” designed to inform “public agency decisionmakers and the public generally of the significant environmental effect[s]” of proposed projects. (Guidelines, § 15121.) “The EIR identifies significant effects of a project on the environment, the way those effects can be mitigated or avoided, and the alternatives to the project.” (Santiago County Water Dist. v. County of Orange, supra, 118 Cal.App.3d at p. 822, 173 Cal.Rptr. 602; §§ 21002.1, subd. (a), 21061, 21100; Guidelines, §§ 15121, 15126.) The document also helps to ensure that the project's proponents carefully consider the environmental effects and do not simply render a “ ‘post hoc rationalization’ of a decision already made.” (Residents Ad Hoc Stadium Com. v. Board of Trustees (1979) 89 Cal.App.3d 274, 284, 152 Cal.Rptr. 585, quoting Mount Sutro Defense Committee v. Regents of University of California (1978) 77 Cal.App.3d 20, 36–37, 143 Cal.Rptr. 365.)
The EIR process involves the preparation of a draft EIR, which is released to the public for review and comment and is then evaluated in light of comments received. (§§ 21092, 21153; Guidelines, §§ 15081–15088.) The agency proposing the project then prepares a final EIR incorporating comment and evaluation of the draft. (Guidelines, §§ 15089, 15090, 15132.) Before approving the project the agency must certify it has considered the final EIR, and must make findings that the project's significant environmental effects have been avoided or mitigated, or that unmitigated effects are outweighed by the project's benefits. (§§ 21002, 21002.1, 21081; Guidelines, §§ 15091–15093.)
A judicial review of the approval of an EIR does not pass upon the validity of the document's environmental conclusions, but only on its sufficiency as an informational document. (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 189, 139 Cal.Rptr. 396.) Our standard of review is the same as the trial court's: whether the agency approving the EIR (here the Regents) abused its discretion, either by approving the document without proceeding in the manner required by law or by rendering an approval decision not supported by substantial evidence. (§§ 21168, 21168.5; Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1071–1072, 230 Cal.Rptr. 413.)
CEQA requires “an interactive process of assessment of environmental impacts ․ which must be genuine [and] open to the public, premised upon a full and meaningful disclosure of the scope, purposes, and effect” of a project. (County of Inyo v. City of Los Angeles (1984) 160 Cal.App.3d 1178, 1185, 207 Cal.Rptr. 425; see Mira Monte Homeowners Assn. v. County of Ventura (1985) 165 Cal.App.3d 357, 366, 212 Cal.Rptr. 127.) The reviewing court must determine that the EIR and its approval process has fully complied with the procedural requirements of CEQA, “since only in this way can the important public purposes of CEQA be protected from subversion.” (San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 71–72, 198 Cal.Rptr. 634; People v. County of Kern (1974) 39 Cal.App.3d 830, 842, 115 Cal.Rptr. 67.)
The present campus of UCSF provides facilities for the Schools of Medicine, Nursing, Pharmacy and Dentistry. A long range development plan prepared in 1982 indicated serious space constraints at the Parnassus campus, and concluded there was a need to “develop space in University managed off-campus locations for academic and support activities currently located on campus where space can be released for essential needs. ․” These essential needs were defined to include classrooms, laboratories, and research.
To overcome the space constraints at Parnassus, the Regents acquired the former Firemen's Fund Insurance Company headquarters building, a spacious four-story office building at 3333 California Street in the Laurel Heights neighborhood. The Regents filed a Notice of Exemption with the State Secretary of Resources, declaring that the purchase of the site had no significant environmental effect, and was categorically exempt from CEQA and its EIR requirements “because it involves the acquisition and operation of the existing facilities and site and involves negligible or no expansion of use beyond that previously existing.” (See §§ 21080, 21084; Guidelines, §§ 15300, 15301.) The Regents informed the public that the building would be used for “administrative and academic” functions.
For reasons which we cannot ascertain from the record, the use referred to in the quoted portions of the Notice of Exemption appears to be different than the use contemplated by the present plan of the Regents. We do not know if they were correct when the notice was filed, but were affected by later decisions of the Regents to relocate biomedical research units to Laurel Heights. In any event, the Regents' present plan is not to use the site as an office building as Fireman's Fund did. Nor do they plan to use it for what lay persons might understand to be administrative and academic functions. At some point the Regents decided to relocate certain administrative and basic science research units of the UCSF School of Pharmacy to Laurel Heights. The relocation of the research units include facilities which handle toxic chemicals, carcinogens and radioactive substances. Apparently because this relocation contemplated an element of potential environmental impact, the Regents then began the formal process under CEQA for the preparation of the EIR which is at issue before us.
The draft EIR prepared by the Regents defined the project under review as the “mov[ing of] the School of Pharmacy basic science research units from the UCSF Parnassus campus to Laurel Heights.” In addition to the objective of relieving Parnassus space limitations, the draft EIR noted a secondary project objective of the consolidation of scattered Pharmacy School facilities into a single building. The draft EIR further revealed that the basic science research units included a number of research facilities which handled toxic chemicals, carcinogens and radioactive substances; the document indicated that toxic chemicals would be vented to the outside air through laboratory fume hoods, and that harmful exposure to hazardous materials could occur through worker negligence, accidents or unidentified risks.
The draft EIR identified a number of potential environmental impacts, including direct and cumulative impacts on air quality caused by the fume hood emissions, as well as impacts on human health from exposure to hazardous substances. The draft EIR also identified less significant impacts from noise, traffic congestion, and parking.
After a public hearing and a 45–day period for public review and comment, the Regents held a final public meeting to respond to comments received during the review period. The Regents adopted specific measures to mitigate the identified environmental impacts. The final EIR concluded the environmental impacts had been “reduced to a level of insignificance.” The Regents certified the EIR and approved the Laurel Heights project.
The Association then filed the instant petition for writ of mandate to set aside the EIR's approval. The superior court denied the petition. In a lengthy statement of decision, the trial court concluded the Regents approved the EIR in the manner required by law and the Regents' approval of the EIR is supported by substantial evidence. This appeal ensued.2
Three aspects of the EIR are dispositive of this appeal: the adequacy of the EIR's project description, the sufficiency of its discussion of project alternatives, and the validity of its conclusion that potential environmental impacts will be mitigated to a level of insignificance.3
1. Project Description
An accurate project description “is the sine qua non of an informative and legally sufficient EIR.” (County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d at p. 199, 139 Cal.Rptr. 396; Mira Monte Homeowners Assn. v. County of Ventura, supra, 165 Cal.App.3d at p. 365, 212 Cal.Rptr. 127.) Needless to say the definition of the project defines the scope of environmental review. If an individual project is a component of a larger, ultimate project (a “multiple” or “phased” project), and is a necessary precedent for action on the larger project, the ultimate project must be described and analyzed in the EIR. The EIR must also discuss the cumulative impact on the environment of the current project and reasonably foreseeable probable future projects. (Guidelines, §§ 15165, 15065, subd. (c), 15130, 15355.)
The Association argues the Laurel Heights relocation is a component of a larger project contemplated at the facility, and the EIR fails to address the future anticipated projects and their cumulative impact. The record does reveal the contemplated movement of additional Parnassus research facilities to the Laurel Heights building. A portion of the Laurel Heights building is currently leased to the California Department of Transportation; the EIR indicates that after this lease expires in 1995, the Regents intend to occupy the entire building and use it as “a biomedical research facility, with cross-disciplinary programs from all the schools.” There also is an indication of the Regents' intent to move additional programs resulting in the use of least 80 percent of the building for units primarily related to biomedical research.
Under these circumstances the Laurel Heights project is a “phased” project within the meaning of CEQA. The Laurel Heights initial use cannot be considered apart from the planned ultimate goal of full use of the building for a biomedical facility. The EIR should have addressed the issue of the extent and cumulative impact of the anticipated future plans. Since it failed to do so, we must conclude the EIR's project description is legally inadequate under governing provisions of CEQA.
2. Alternatives Discussion
The Association next argues the EIR's discussion of project alternatives is inadequate under CEQA and its interpretive cases. An EIR must describe all reasonable alternatives to the project, including those which would reduce or eliminate adverse environmental effects and including the “no project” alternative. (§§ 21061, 21002, 21100, subd. (d); Guidelines, § 15126, subd. (d); Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893, 909–910, 165 Cal.Rptr. 401.) This requirement is not mere formalism: it is designed to ensure that “all reasonable alternatives to proposed projects are thoroughly assessed by the responsible” agency involved. (Wildlife Alive v. Chickering (1976) 18 Cal.3d 190, 197, 132 Cal.Rptr. 377, 553 P.2d 537; County of Inyo v. City of Los Angeles, supra, 71 Cal.App.3d at p. 203, 139 Cal.Rptr. 396.) The language of Guideline section 15126(d) is instructive: an EIR must “[d]escribe a range of reasonable alternatives to the project, or the location of the project, which could feasibly attain the basic objectives of the project and evaluate the comparative merits of the alternatives․”
The alternatives discussion need not be exhaustive and is subject to a “rule of reason”. The EIR need only discuss reasonably feasible alternatives (see § 21061.1), and need not discuss alternatives “whose effect cannot be reasonably ascertained and whose implementation is deemed remote and speculative.” (Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco, supra, 106 Cal.App.3d at p. 910, 165 Cal.Rptr. 401.)
The discussion of alternatives in this case comprises a total of three pages of the EIR. One page is given over to a discussion of the “no project” alternative; the remaining two pages discuss the project alternatives of relocating the School of Pharmacy science units to either other sites on the Parnassus campus or to off-campus sites at other UCSF facilities. One of these two pages is devoted to a map; the other contains the sole discussion of the project alternatives in two paragraphs containing a grand total of nine lines of text. The first paragraph recites that alternative sites on the Parnassus campus have not been evaluated as possible candidates for the location of the Pharmacy School facilities. The second, the EIR's entire discussion of the alternative of off-Parnassus locations other than Laurel Heights, reads in its entirety, “Currently the University has facilities at numerous other locations in the City of San Francisco, as shown in Exhibit V–1 [map]. None of these sites had space available of sufficient size to accommodate the School of Pharmacy units that are to be moved.”
It is not possible to consider this discussion of project alternatives to be adequate. It is woefully inadequate. “[A]n EIR must produce information sufficient to permit a reasonable choice of alternatives so far as environmental aspects are concerned.” (San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino (1984) 155 Cal.App.3d 738, 750–751, 202 Cal.Rptr. 423; Residents Ad Hoc Stadium Com. v. Board of Trustees, supra, 89 Cal.App.3d at p. 287, 152 Cal.Rptr. 585.) Unlike the alternatives, discussions upheld in cases such as Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco, supra, and Residents Ad Hoc Stadium Com. v. Board of Trustees, supra, the discussion in this EIR does not present a fact-based analysis of several alternatives between the two poles of “project” and “no project” alternatives. Rather, the discussion of alternatives in this case is similar to that in San Bernardino Valley Audubon Society: there the brief alternative discussion made vague allusions possible sites without discussing “the location or attributes of that property or why it would or would not be a feasible alternative.” (155 Cal.App.3d at p. 751, 202 Cal.Rptr. 423.)
Here the Regents simply referred to other facilities, designated as dots on a map of San Francisco, with no discussion of their size or available space, and with a complete lack of data to provide a factual informational underpinning for the conclusory statement that no other site had adequate space. It is impossible to analyze meaningfully the report's conclusion that Laurel Heights is the only available facility of sufficient size. There is no assessment of the capabilities of existing sites to be expanded or remodeled with a less significant impact on the environment. There is no discussion of the possibility of purchasing or leasing other facilities, including ones not located in a high-density residential area such as Laurel Heights.
As in San Bernardino Audubon Society, “the EIR does not contain the required sufficient degree of analysis to provide decisionmakers with information to allow them to intelligently take account of environmental consequences.” (Ibid; see also Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 429, 222 Cal.Rptr. 247.) Conclusory comments in support of environmental conclusions are generally inappropriate. (See People v. County of Kern, supra, 39 Cal.App.3d at pp. 840–842, 115 Cal.Rptr. 67.) Moreover, the EIR's statutory goal of public information regarding a proposed project has not been met; the EIR provides no information to the public to enable it to understand, evaluate, and respond to the bare assertion of nonavailability of alternative space. “The key issue is whether the selection and discussion of alternatives fosters informed decisionmaking and informed public participation.” (Guidelines, § 15126, subd. (d)(5) [emphasis added].)
The Regents defend the EIR's discussion as adequate under the “rule of reason,” asserting that the EIR “discussed” all reasonable alternatives and ignored only the speculative and the remote. We disagree. The EIR's discussion is not a discussion at all, but a conclusory recitation of unrevealed facts. The “rule of reason” cannot excuse this noncompliance. While the Regents rely on the oft-cited requirement of “only ․ an objective, good-faith effort to comply” with CEQA provisions, the Regents paint this language too broadly. The good-faith effort phraseology excuses a lapse from absolute perfection provided the EIR meets the requirement of “production of information sufficient to permit a reasonable choice of alternatives.” (Foundation for San Francisco's Architectural Heritage v. City and County of San Francisco, supra, 106 Cal.App.3d at p. 910, 165 Cal.Rptr. 401.)
The Regents argue that the Association's stress on alternatives would “redefine” the project. A discussion of reasonable alternatives to a project, however, necessarily explores project alternatives which differ from the project description of the EIR but which may fulfill the basic project objectives in a less environmentally damaging manner. In this case a proper exploration of alternatives would evaluate the availability and suitability of other locations for the research facilities which would satisfy the twin project objectives of decentralization of the Parnassus campus and consolidation of Pharmacy School facilities. Without such a discussion of alternatives, the EIR would be inadequate to prevent the “post hoc rationalization of a project decision already reached,” namely placement of the facilities at Laurel Heights. (See Residents Ad Hoc Stadium Com. v. Board of Trustees, supra.)
The Regents claim the Association has not pointed to any evidence in the record which would suggest any reasonable alternatives to moving the Pharmacy units to Laurel Heights. This argument is somewhat disingenuous given the EIR's failure to provide the public with an adequate informational assessment of alternatives. As the proponent of the proposed project and the agency approving the EIR, it is the responsibility of the Regents to provide an adequate alternatives discussion. Reliance on such cases as Bowman, Residents Ad Hoc Stadium Committee, and City of Lomita v. City of Torrance (1983) 148 Cal.App.3d 1062, 196 Cal.Rptr. 538, is misplaced. While these decisions fault the CEQA petitioner for failure to point to record evidence of a proffered alternative, the cases concern alternatives discussions which are comprehensive and found to be adequate, but to which a CEQA petitioner objects by raising an additional, unconsidered alternative or by raising an unconsidered aspect of a considered alternative. These cases are distinguishable from the case before us where an adequate discussion of alternatives has not been provided. In any event, the Association did point to some evidence in the record at least suggesting that the location of the research facilities at other areas was much more than “speculative” and “remote.”
Finally, the Regents argue that a discussion of alternatives, adequate or not, was not required on the ground that the feasibility of project alternatives need not be evaluated if the EIR concludes that all significant environmental impacts of the project have been mitigated. In essence, the Regents believe that if a given project has been mitigated to the point of insignificant environmental damage, there is no further need to examine project alternatives.
As will be shown in the next section, this argument is based on the false premise that the environmental effects of the project are substantially mitigated. Even if the premise were true, the argument is not compelling. The Regents rely on Laurel Hills Homeowners Assn. v. City Council (1978) 83 Cal.App.3d 515, 147 Cal.Rptr. 842 where the court reasoned that the purpose of CEQA was “to prevent avoidable damage to the environment from projects,” and concluded that if a project's environmental damage was mitigated, the purpose of CEQA is satisfied and an EIR has no reason to discuss project alternatives. (83 Cal.App.3d at p. 521, 147 Cal.Rptr. 842.)
We respectfully disagree with the Laurel Hills reasoning and decline to follow its holding. In our view, Laurel Hills overlooks the mandatory requirement of CEQA provisions that an EIR discuss project alternatives and evaluate their comparative merits. Furthermore, the decision fails to take into account the role of the alternatives discussion in furthering the informational purpose of CEQA. (See, e.g., San Bernardino Valley Audubon Society, supra ). For these and other reasons Laurel Hills has been sharply criticized by a leading CEQA commentator. (Selmi, The Judicial Development of the California Environmental Quality Act (1984) 18 U.C. Davis L.Rev. 197, 263–266.) Professor Selmi points out that Laurel Hills focused on CEQA's frequent references to the requirements of feasible mitigation measures “or” feasible alternatives, and classified the references as “alternatives.” (Selmi, supra, at p. 264.) The so-called alternative grammatical structure led the Laurel Hills court to conclude that feasible project alternatives and feasible measures of mitigation are conjunctive requirements; on this conclusion the court constructed a holding that alternatives need not be discussed in an EIR if adequate mitigation measures are provided.
The Laurel Hills analysis takes an overly simplistic approach to the issue, and is grounded on grammar rather than the clear intent of the Legislature. The mere use of the grammatical convention “or” cannot reasonably be interpreted as obviating the need for a feasibility analysis in the presence of adequate mitigation: the use of “or” does not always denote linkage of two mutually exclusive terms. A more reasonable interpretation is that expressed by Professor Selmi: the EIR must first analyze the feasibility of project alternatives; if none are feasible the analysis proceeds to measures to mitigate the potential environmental damage of the project. (Ibid.) The Laurel Hills interpretation would permit a project when the mitigation measures had a greater environmental impact than a feasible alternative, and would preclude even a discussion of the alternatives in the public's informational document. Given that CEQA's use of the conjunctive is subject to two possible interpretations, the most environmentally protective one should govern. (Friends of Mammoth v. Board of Supervisors, supra; Selmi, supra, at p. 264.) 4
We conclude the alternatives discussion of the EIR does not comply with the requirements of CEQA.
The Association argues there is no substantial evidence to support the Regents' finding that all significant environmental impacts are mitigated. The Association focuses primarily on the significant impacts arising from the venting of toxic chemicals and radioactive substances into the surrounding air. Review of the EIR compels the conclusion that the EIR both fails to present adequate information concerning these environmental impacts and fails to muster substantial evidence to support the Regents' finding of successful mitigation.
The EIR identifies a potential significant environmental impact on air quality and human health, caused by the expulsion into the air of toxic chemicals, carcinogens and radioactive substances through laboratory fume hoods. The potential harmful effects of the emissions of these toxic, carcinogenic and radioactive substances are said to be reduced by the dilution of the substances by large quantities of room air drawn into the laboratory fume hoods, and by the dispersion of the diluted substance by entry into the surrounding atmosphere and dissipation by wind.
The Regents adopted several mitigation measures, identified as placement of the fume hood exhaust stacks seven feet above the building roof, as required by law; the use of air flow gauges to ensure an adequate flow of air for dilution; the use of high efficiency particulate air (HEPA) filters for regulated carcinogens; six-month inspection of fume hoods to ensure compliance with Cal/OSHA requirements (see fn. 6, post ); and a request to the Bay Area Air Quality Management District to monitor surrounding air quality periodically.5 The final EIR concluded that these mitigation measures were adequate to mitigate the air quality and human health effects to a level of insignificance.
This determination is not supported by substantial evidence due to a number of significant deficiencies of the EIR. First, the document fails to estimate the quantities of toxic chemicals, carcinogens, and radioactive substances which will be emitted through the fume hoods. These categories of substances are highly dangerous to human health; yet the Regents propose to vent the substances in a residential area with no attempt at assessing the quantities involved, which the EIR admits can “vary considerably.” Significant failure of quantification can lead to the invalidation of an EIR. (Santiago County Water Dist. v. County of Orange, supra, 118 Cal.App.3d at p. 830, 173 Cal.Rptr. 602; Whitman v. Board of Supervisors (1979) 88 Cal.App.3d 397, 406, 151 Cal.Rptr. 866.)
Second, the EIR does not adequately identify the exact nature of the chemicals expected to be released through the hoods. It is true that the final EIR contains an extensive listing of 1200 chemicals, including toxics, purchased by UCSF for its Parnassus Pharmacy School research in 1985. For chemicals designated hazardous to health, the list indicates the quantity purchased by UCSF during the year. The value of this list, however, is minimal: the list was included in the final EIR after the public comment period had expired; it assumes that future research would be patterned after 1985 research in both quality and quantity of chemicals used, and the list simply provides no meaningful dissertation on the identification of the quantity and content of fume hood emissions. Also, the list sheds no light on possible additional hazards caused by the mixing of different toxic chemicals.
Third, there is a similar lack of factual information regarding the impact of the emissions on human health. The draft EIR admits that “some of the chemicals that may be vented through the exhaust stacks are known to be toxic at certain levels of concentration.” Some of the chemicals identified in the list of 1200 are described in Environmental Protection Agency chemical profiles as highly toxic in small amounts. The draft EIR further admits that “any level of exposure” to radioactive substances “may pose a potential hazard.” Yet the EIR does not provide information regarding the concentrations of harmful substances at the point of release to outside air. The measurement of such concentrations may be difficult, but there is no indication the measurements are impossible.
In addition to a lack of precise information on outdoor concentration, the EIR does not provide an adequate factual assessment of the dispersion effect of the prevailing winds. The draft EIR noted the prevailing wind direction and asserted the seven-foot height of the exhaust stacks and the upward velocity of the exhausted air “should” be enough for proper and prompt dilution; the final EIR has additional information regarding variable wind directions, but the document lacks a study evaluating the estimated efficacy of the winds to disperse harmful substances away from the residences surrounding the facility. In particular, there is little if anything concerning dispersal on a calm day and no treatment of local wind patterns which might be caused by the buildings surrounding the facility. The final EIR recites, without elaboration or data, that “on calm days the transport of these materials away from the building would be reduced, as they would also vary due to topography, wind speed, and other natural influences.”
The EIR fails to provide an adequate factual description of the substantial environmental impacts of the fume hood emissions. This failure renders it impossible to determine whether the impacts have been substantially mitigated. The Regents argue that precise information regarding levels of concentration are “immaterial” because laboratory fume hood emissions are not regulated and have never been the subject of published scientific studies. According to the Regents, emission of toxic materials is currently controlled only through regulation of the workplace, the marketplace, and water and waste disposal. While the Regents earn some sympathy for the lack of regulatory guidance, they present no authority that the absence of governmental regulation of a harmful act is sufficient to obviate environmental concerns. Certainly the absence of regulation, standing alone, is not conclusive proof of an absence of potential environmental harm. Such an argument leads to the illogical assertion that asbestos was not environmentally deleterious prior to its regulation, but only afterwards. The Regents' position is also disingenuous: the Regents' own EIR identifies the fume hood emissions as a potential environmental impact, yet the Regents now argue the emissions are a problem of a lesser order of magnitude due to a lack of current regulatory measures. We must also note that the regulations designed to protect the worker handling toxic chemicals do not address the protection of adjoining neighbors potentially exposed to fume hood emissions. Like the laboratory worker, the neighbor is entitled to assurance there will be no significant environmental contamination.
In addition to failing to adequately describe the environmental impacts caused by fume hood emissions, the EIR fails to adequately present sufficient fact-based analysis to support its conclusion that the impacts will be mitigated to the point of insignificance. Although the EIR admits that HEPA filters are required for certain regulated carcinogens, it does not identity these carcinogens or state that filters will be used therefor. The final EIR does not adopt the public's proposal that all fume hood exhaust stacks be equipped with filters and scrubbers, and does not explain why this proposed measure of mitigation would be unreasonable or ineffective. This mitigation discussion should have been included in the EIR. (Guidelines, § 15126, subd. (c); Village Laguna of Laguna Beach, Inc. v. Board of Supervisors (1982) 134 Cal.App.3d 1022, 1034–1035, 185 Cal.Rptr. 41.)
While the EIR relies substantially on the height of the exhaust stacks and the monitoring of draft gauges to ensure an outflow of fumes of 1,050 cubic feet per minute, there is little factual evaluation of the sufficiency of this mitigation measure. Given the fact that neighboring residential structures are higher than the Laurel Heights facility, an analysis of the mitigating effect is essential to assess the likelihood that toxic chemicals or radioactives will contaminate surrounding homes and their inhabitants.
The Regents rely heavily on two studies of contamination at the Parnassus campus, which did not show that School of Pharmacy research activity resulted in contamination of the surrounding area. The Regents argue that because they are simply moving the facilities from one neighborhood to another, the challenged project is simply a continuation of existing harmless activity. Indeed, the trial court upheld the EIR's finding of mitigation relying almost exclusively on this reasoning, and stated at oral argument on the petition her belief that “all of the activity is essentially the same” as that conducted at Parnassus.
The trial court's conclusion requires the assumption that the Parnassus activity is safe, which the Regents claim is proven by the two Parnassus studies. The studies are described in some detail in the EIR, but were not included in full, which would have enabled complete information and evaluation by the public. Their review confirms the impression gleaned from the final EIR that the studies are inadequate to establish substantial evidence of an environmentally safe operation.
The central question raised by the project is airborne contamination and the resulting concentrations released into the atmosphere and possibly attaching to nearby buildings and affecting their occupants. Both Parnassus studies, however, are of soil and vegetation, with no clear explanation why examination at ground level alone is sufficient. The 1984 study apparently tested only for the presence of “purgeable hydrocarbons,” seemingly admitting the author of the study did not know “what contaminants to expect.” Apart from concerning itself with a limited range of target chemicals, the 1984 study presents no conclusion based on its findings. The 1986 study involved testing for three radioactives: gross gamma, hydrogen–3 and carbon–14. The study, again limited to vegetation and soil, concluded the measured gamma radiation was “not significant” compared to a distilled water control, without explaining that most measurements were on the average greater than the control level. The sampling for the other radioactives suggested carbon–14 presence was near the control (“background”) level, but did not explain why hydrogen–3 soil concentrations were higher than background, in some cases by as much as 50 percent.
The Regents, by promising to measure air quality at Laurel Heights (see fn. 5, ante ), have admitted such monitoring is technologically possible. Yet there is no explanation for the lack of such monitoring at Parnassus to assess more accurately the contamination of the air by the fume hood exhaust. The limitation of the Parnassus studies to soil and vegetation is both indeterminative and unexplained.
Finally, the Parnassus stacks are 15 stories high with a measured exhaust plume of 44 feet. The stacks at Laurel Heights are only seven feet higher than four stories, and are lower than surrounding residences. What is safe at Parnassus may not be safe at Laurel Heights: even the transfer of existing uses must be considered in light of the different stack height, specific topography, wind, and other local conditions. Even accepting the assertion that Parnassus research activity has been more extensive than that planned at Laurel Heights, the studies are insufficient. An EIR must analyze the project's impact on the affected area. (See Environmental Planning & Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 352, 182 Cal.Rptr. 317.)
We conclude that the Regents' determination that the environmental impact of the fume hood emissions will be mitigated to insignificance is not supported by substantial evidence.
The Laurel Heights EIR was not prepared and approved in the manner prescribed by law because of the legal deficiency of its description of the project and its discussion of project alternatives. The approval decision was based on a conclusion of adequate mitigation of environmental impacts which is not supported by substantial evidence. Accordingly, the approval of the EIR by the Regents was an abuse of discretion. In light of the fundamental nature of the defects noted above, the abuse of discretion must be considered prejudicial. The errors are not the sort of trivial lapses of procedure discussed in such cases such as Dusek v. Redevelopment Agency (1985) 173 Cal.App.3d 1029, 219 Cal.Rptr. 346; the deficiencies go directly to the main purpose of the EIR as envisioned by CEQA. In particular, the failure of adequate disclosure of alternatives to the project invokes section 21005, which specifically declares that a violation of CEQA's information disclosure provisions “may constitute a prejudicial abuse of discretion ․ regardless of whether a different outcome would have resulted” from complete disclosure.
The citizens of the State of California, for good reason, have great pride in the University of California. It is often referred to as the greatest public university in the world. With public confidence in the integrity of so many of our governmental institutions being shaken so often in contemporary times, it is more important than ever that our public institutions, particularly those of higher education engaging in important research utilizing toxic chemicals, carcinogens and radioactive substances, conduct themselves in a manner to engender public confidence.
The Laurel Heights building was constructed and used for commercial office space. When the Regents purchased it they certified that “it involves the acquisition and operation of the existing facilities and site and involves negligible or no expansion of use beyond that previously existing.” This lawsuit arose when the Regents later approved a legally inadequate EIR and one which makes no serious effort to comply with the law requiring a discussion of reasonable alternatives to the project. Even viewing the conduct of the Regents with regard to Laurel Heights in the manner most favorable to them, their actions appear to have been carried out in a most cavalier fashion.
Because our process of approval of public projects permits the agency that is the proponent of the project to be the body that approves the EIR for the project, the agency bears a special responsibility to the public to make decisions based upon the public interest, not based upon the agency's self-interest. The test here is not what is best for UCSF; it is whether the requirements of the law have been fulfilled by providing the public and the Regents with sufficient information about the project and an adequate analysis of its anticipated impact upon the environment. Under the circumstances reviewed above, we have no alternative but to conclude that the Regents have not met the requirement of CEQA for “an interactive process of assessment of environmental impacts ․ which must be genuine [and] open to the public, premised upon a full and meaningful disclosure of the scope, purposes, and effect” of this project. (County of Inyo v. City of Los Angeles, supra, 160 Cal.App.3d at p. 1185, 207 Cal.Rptr. 425.)
When this court conducted an initial hearing on the Association's writ petition, the Association requested that we halt the construction of the biomedical research facilities at the Laurel Heights site pending this decision. The Regents opposed this request because of their urgent need for space and requested that they be allowed to proceed with the construction in order to expedite their move to Laurel Heights upon receiving a ruling in their favor on the petition. We agreed to allow the Regents to proceed with the construction, making clear that they did so at their own risk since an adverse ruling could mean that an expenditure of public funds had been made to construct facilities which could not be utilized for the purpose for which they were being constructed. The fact that expenditures have now been made cannot affect our decision, which we must make based upon whether the Regents have complied with CEQA. The Regents recognized CEQA provides that a party continuing construction during an appeal does so at its own risk. (§ 21167.3, subd. (b).) Although as citizens and taxpayers we are obviously concerned with a possible waste of public funds, in our role as justices our concern is limited to whether there has been a failure to comply with the law.
For the reasons discussed above, the Association's petition for writ of mandate should have been granted. In light of this conclusion we need not reach the remaining issues raised by the Association.6
The order denying the petition for writ of mandate is reversed. The cause is remanded to the trial court with instructions to grant the petition and set aside approval of the Laurel Heights EIR.
I concur in the result. The environmental impact report for the uses proposed by the Regents of the University of California is legally inadequate despite the University's lengthy efforts to mitigate significant environmental objections.
1. All further statutory references are to the Public Resources Code unless otherwise indicated. The references to the California Administrative Code are to the CEQA administrative guidelines (Cal.Admin.Code, tit. 14, §§ 15000 et seq. [hereafter “Guidelines”] ). The Guidelines implement the various provisions of CEQA and are to be afforded great weight unless unauthorized or clearly erroneous. (Rural Landowners Assn. v. City Council (1983) 143 Cal.App.3d 1013, 1021, 192 Cal.Rptr. 325.)
2. The petition for writ of mandate was filed as one cause of action in a complaint which alleged additional causes of action outside the scope of CEQA. These causes of action, which generally entail claims that the Regents misrepresented to the community that the project site would be used only for offices and classrooms, are still pending below. Notwithstanding the one final judgment rule, the order denying the mandate petition is separately appealable as a final order in a special proceeding. (Elmore v. Imperial Irrigation Dist. (1984) 159 Cal.App.3d 185, 190–193, 205 Cal.Rptr. 433; California Teachers Assn. v. Board of Education (1980) 109 Cal.App.3d 738, 751, 167 Cal.Rptr. 429; see also Highland Development Co. v. City of Los Angeles (1985) 170 Cal.App.3d 169, 178–179, 215 Cal.Rptr. 881 [premising appealability on alternative theory of “de facto severance”].) We of course express no opinion on the merits of the remaining causes of action.
3. The parties dispute whether the challenge to the EIR approval was a traditional or an administrative mandamus proceeding. If the former, the trial court would have been free to accept evidence beyond the administrative record; if the latter, the trial court would have been limited to the administrative record before the Regents as the approving agency. (See §§ 21168, 21168.5.) Although this appears to be a traditional mandamus case because the agency did not conduct a hearing at which evidence was taken in the judicial sense, it is unnecessary for us to resolve the question. Our standard of review is essentially the same. (See Bowman v. City of Petaluma, supra, 185 Cal.App.3d 1065, 230 Cal.Rptr. 413; Citizens Assn. for Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 217 Cal.Rptr. 893.)It is quite possible the dispute stems from the Association's invocation in the trial court of the doctrine of judicial notice. The Association requested the court to take judicial notice of a variety of documents; for the most part these were public records which the trial court had to judicially notice upon request. (Evid.Code, §§ 451–453.) Given this mandatory duty we must assume the court took judicial notice even though no order to that effect was entered. The Regents, positing this as an administrative mandamus proceeding, suggest the trial court was limited by the administrative record and barred from expanding that record by use of the doctrine of judicial notice. The Regents have not established, however, that the limitation to the administrative record would preclude consideration of matters subject to judicial notice as opposed to matters requiring proof by the more typical modes of evidence. In any case no matter established below solely by judicial notice is dispositive of our decision in this appeal.Certain matters have been judicially noticed by this court in response to a duly noticed motion which the Regents did not oppose. The Regents' attempt to counter some of the noticed matters has been improvidently made after submission of the cause, and does not touch upon matters crucial to our decision. The Association's second motion for judicial notice, which was opposed by the Regents, is denied.
4. The Regents rely on a number of federal cases decided under CEQA's federal counterpart, the National Environmental Policy Act, 42 U.S.C. §§ 4321 et seq. (“NEPA”). Contrary to the Regents' interpretation, these cases tend to support the Association's position. They do not stand for a rule analogous to Laurel Hills, but only that given a detailed discussion of project alternatives, the range of alternatives which must be considered decreases as the environmental impact is mitigated. The cases actually affirm the need for a rigorous discussion of alternatives in an environmental impact document. (See Olmstead Citizens for a Better Community v. U.S. (8th Cir.1986) 793 F.2d 201, 203–208; City of Angoon v. Hodel (9th Cir.1986) 803 F.2d 1016, 1020; Appalachian Mountain Club v. Brinegar (D.N.H.1975) 394 F.Supp. 105, 118; see also River Rd. Alli. v. Corps of Eng. of U.S. Army (7th Cir.1985) 764 F.2d 445, 452, cert. den. (1986) 475 U.S. 1055, 106 S.Ct. 1283, 89 L.Ed.2d 590.)
5. The Regents have since assumed responsibility for the air quality monitoring after the District indicated it could not perform the necessary testing.
6. In anticipation of preparation of a new EIR for the project, we note that the omission of an issue from our discussion does not imply its lack of significance. For instance, the Association raised serious questions concerning the sufficiency of the EIR's discussion of the handling of radioactives on the laboratory premises. Future mitigation measures might go beyond the promise to comply with Cal/OSHA procedures, and should certainly take into account the uncertain future status of that agency and any diminution of its enforcement capability. The EIR should also include analysis of problems of traffic congestion, parking and noise.
KING, Associate Justice.
HANING, J., concurs.