This case was last updated from Los Angeles County Superior Courts on 05/30/2019 at 01:45:10 (UTC).

CITY OF BALDWIN PARK VS CITY OF IRWINDALE ET AL

Case Summary

On 07/11/2016 CITY OF BALDWIN PARK filed an Other - Writ Of Mandamus lawsuit against CITY OF IRWINDALE. This case was filed in Los Angeles County Superior Courts, Norwalk Courthouse located in Los Angeles, California. The Judge overseeing this case is TORRIBIO, JOHN A.. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3400

  • Filing Date:

    07/11/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Writ Of Mandamus

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

TORRIBIO, JOHN A.

 

Party Details

Plaintiffs and Petitioners

BALDWIN PARK CITY OF

CITY OF BALDWIN PARK

Defendants and Respondents

DOES 1 - 10

IRWINDALE CITY OF

CITY COUNCIL OF THE CITY OF IRWINDALE

CITY OF IRWINDALE

PLANNING COMMISSION OF THE CITY OF

SUCCESSOR AGENCY TO IRWIN. COMM. REDEVELP

OVERSIGHT BOARD OF THE SUCCESSORY AGENCY

Interested Parties

ATHENS SERVICES

ROES 11 - 20

ARAKELIAN ENTERPRISES INC.

ARAKELIAN ENTERPRISES DBA ATHENS SERVICES

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

DE FELICE DIANE C.

BROWNSTEIN HYATT FARBER SCHRECK LLP

DEFELICE DIANE CATHERINE

Defendant Attorney

ALESHIRE & WYNDER LLP

Respondent Attorney

MALAWY JEFFREY MICHAEL

Interested Party Attorney

OSAKI KELI NICOLE

 

Court Documents

Minute Order

1/30/2018: Minute Order

Minute Order

3/13/2018: Minute Order

Unknown

4/23/2018: Unknown

Unknown

4/23/2018: Unknown

Minute Order

4/24/2018: Minute Order

Minute Order

5/1/2018: Minute Order

NOTICE OF RULING ON NOTICE OF RELATED CASE

5/1/2018: NOTICE OF RULING ON NOTICE OF RELATED CASE

Minute Order

6/5/2018: Minute Order

NOTICE OF COURT'S MINUTE ORDER RE STIPULATION AND [PROPOSED] ORDER RE BRIEFING SCHEDULE FOR CONSOLIDATED AND RELATED CASES

6/7/2018: NOTICE OF COURT'S MINUTE ORDER RE STIPULATION AND [PROPOSED] ORDER RE BRIEFING SCHEDULE FOR CONSOLIDATED AND RELATED CASES

Minute Order

8/20/2018: Minute Order

Minute Order

8/27/2018: Minute Order

Minute Order

9/21/2018: Minute Order

Stipulation and Order

10/22/2018: Stipulation and Order

Minute Order

10/22/2018: Minute Order

Notice

10/31/2018: Notice

Notice

11/29/2018: Notice

Answer

12/20/2018: Answer

Answer

12/20/2018: Answer

61 More Documents Available

 

Docket Entries

  • 05/21/2019
  • Notice of Lodging (City of Baldwin Park's Notice of Lodging of Joint Appendix of Administrative Record (AR) Cites); Filed by CITY OF BALDWIN PARK (Petitioner); City of Baldwin Park (Plaintiff)

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  • 05/21/2019
  • Response (City of Baldwin Park's Response to Respondent's and Real Party in Interest's Objections to Petitioner City of Baldwin Park's Incorporation of Arguments by Reference); Filed by CITY OF BALDWIN PARK (Petitioner); City of Baldwin Park (Plaintiff)

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  • 05/21/2019
  • Notice of Lodging (City of Baldwin Park's Notice of Lodging of Trial Notebook); Filed by CITY OF BALDWIN PARK (Petitioner); City of Baldwin Park (Plaintiff)

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  • 05/17/2019
  • Objection (RESPONDENTS? AND REAL PARTY IN INTEREST?S OBJECTIONS TO PETITIONER CITY OF BALDWIN PARK?S INCORPORATION OF ARGUMENTS BY REFERENCE); Filed by ARAKELIAN ENTERPRISES DBA ATHENS SERVICES (Real Party in Interest)

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  • 05/14/2019
  • Proof of Service by Mail; Filed by Irwindale, City of (Defendant)

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  • 05/14/2019
  • Notice of Lodging (City of Baldwin Park's Notice of Lodging of Waste Management's Reply Brief and Supporting Documents); Filed by CITY OF BALDWIN PARK (Petitioner); City of Baldwin Park (Plaintiff)

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  • 05/13/2019
  • Request for Judicial Notice; Filed by CITY OF BALDWIN PARK (Petitioner); City of Baldwin Park (Plaintiff)

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  • 05/13/2019
  • Reply (PETITIONER CITY OF BALDWIN PARK'S REPLY BRIEF IN SUPPORT OF PETITION FOR WRIT OF MANDATE); Filed by CITY OF BALDWIN PARK (Petitioner); City of Baldwin Park (Plaintiff)

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  • 05/10/2019
  • Notice of Lodging (NOTICE OF LODGING); Filed by Irwindale, City of (Defendant)

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  • 04/04/2019
  • Request for Judicial Notice; Filed by Athens Services (Real Party in Interest); CITY COUNCIL OF THE CITY OF IRWINDALE (Respondent); CITY OF IRWINDALE (Respondent)

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163 More Docket Entries
  • 07/11/2016
  • Proof of Service (ON NOTICE OF INTENT/COMMENCEMENT OF CEQA ACTION ); Filed by Attorney for Petitioner

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  • 07/11/2016
  • Notice (TO ATTY GENERAL RE CEQA ACTION ); Filed by Attorney for Petitioner

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  • 07/11/2016
  • Petition; Filed by null

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  • 07/11/2016
  • Summons Filed; Filed by Attorney for Petitioner

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  • 07/11/2016
  • SUMMONS PETITION

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  • 07/11/2016
  • Notice; Filed by Petitioner

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  • 07/11/2016
  • Proof of Service (not Summons and Complaint); Filed by Petitioner

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  • 07/11/2016
  • Notice; Filed by Petitioner

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  • 07/11/2016
  • Summons; Filed by Petitioner

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  • 07/11/2016
  • PROOF OF SERVICE ON NOTICE OF INTENTINOTICE OF COMMENCEMENT OF CEQA ACTION

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Tentative Rulings

b"

Case Number: BS163400 Hearing Date: July 15, 2021 Dept: 82

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City of Baldwin Park,

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v. City of Irwindale, et al.,\r\n Respondents

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Arakelian Enterprises, Inc.\r\n dba Athens Services, Real Party in\r\n Interest

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Judge Mary Strobel

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Hearings: July 15, 2021

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BS163400 (lead)

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[Consolidated with BS171622]

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[Related to BS163450 and\r\n BS171509]

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__________________________________

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Waste Management Collection\r\n and Recycling, Inc., dba Waste Management of San Gabriel/Pomona Valley,

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v. City of Irwindale, et al.,\r\n Respondents

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Arakelian Enterprises, Inc.\r\n dba Athens Services, Real Party in Interest

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BS163450 (lead)

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[Consolidated with BS171509]

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[Related to BS163400 and\r\n BS171622]

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Tentative Decision

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Motions to Discharge Writ of Mandate

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Respondent City\r\nof Irwindale (“Irwindale” or “City”) and Real Party in Interest Arakelian Enterprises, Inc. dba Athens Services (“Athens”) (collectively\r\n“Respondents”) jointly move for an order discharging the writ of mandate issued\r\nin the instant CEQA actions. Petitioner\r\nCity of Baldwin Park (“Baldwin Park” or “Petitioner”) opposes the motion. Petitioner Waste Management Collection and\r\nRecycling, Inc. (“WM” or “Petitioner”) has not opposed the motion.

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Judicial Notice

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Baldwin Park’s RJN Exhibit A –\r\nGranted. The 2020 RDEIR is part of the\r\nadministrative record. No objection has\r\nbeen received.

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Baldwin Park’s RJN Exhibit B –\r\nDenied. As Baldwin Park indicates,\r\nSCAQMD Rule 2305 (Exhibit B) was adopted by SCAQMD on May 7, 2021, after the\r\n2020 FEIR was certified. Rule 2305 is\r\nnot part of the administrative record. Extra-record\r\nevidence may be admitted if, in the exercise of reasonable diligence, the\r\nrelevant evidence could not have been produced or was improperly excluded at\r\nthe hearing. (CCP § 1094.5(e).) If the moving party fails to make the\r\nrequired showing, it is an abuse of the court's discretion to allow posthearing\r\ndiscovery [or augment the record].” (Pomona Valley Hospital Medical Center v.\r\nSup. Ct. (1997) 55 Cal.App.4th 93, 102.) Baldwin Park has not moved to augment the\r\nrecord with Rule 2305 or shown that both requirements of section 1094.5(e) are\r\nsatisfied. Baldwin Park asserts, without\r\nanalysis, that Rule 2305 “is relevant to the Court’s consideration\r\nof this matter because it represents SCAQMD’s developing regulation of mobile\r\nsource emissions.” (RJN 3.) Rule 2305 imposes specific requirements on\r\nwarehouse operators. The rule does not\r\naddress whether it is feasible to analyze health impacts of criteria air\r\npollutant emissions related to a material recovery facility and transfer\r\nstation (MRF/TS) or other operations similar to the Project. Baldwin Park shows no relevance of Rule\r\n2305.

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Background and Procedural History

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On September 5, 2019, the court issued its final\r\nstatement of decision (“Decision”). The\r\nDecision provides a detailed discussion of the Factual and Procedural\r\nBackground related to the Project, Irwindale’s environmental review and land\r\nuse approvals, and the court’s analysis of Petitioners’ CEQA and non-CEQA claims.\r\n The court’s lengthy prior analysis is\r\nnot repeated here, but is incorporated by reference as relevant background.

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Baldwin\r\nPark submitted a proposed judgment, which Respondents opposed. On October 17, 2019, the court held a hearing\r\non the Proposed Judgment and overruled Respondents’ objections. The Court then entered Judgment in Baldwin\r\nPark’s favor, finding: “the EIR’s project description and analysis is\r\ninadequate as to truck fueling operations, the EIR does not sufficiently\r\nanalyze transportation energy impacts, the EIR does not sufficiently analyze\r\nthe health risks associated with the Project’s emissions of ROG, NOx and ozone,\r\nor explain why this analysis would be infeasible, and the EIR does not\r\nsufficiently analyze greenhouse gas emissions (‘GHG’) or the effectiveness of\r\nAQ-22 in reducing GHG emissions to less than significant….”

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On\r\nOctober 21, 2019, the court issued a Peremptory Writ of Mandate, ordering\r\nIrwindale to set aside, among other things, the FEIR, the Addendum, the DDA and\r\nthe Land Use Approvals, and to take all steps necessary to bring the EIR into\r\ncompliance with CEQA.

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Irwindale\r\nfiled its Returns to the Writ of Mandate in December 2019 and January 2020,\r\nconfirming that it had vacated the certification of the FEIR and the other\r\nProject approvals.

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After the EIR and Land Use\r\nApprovals were vacated and rescinded, Irwindale prepared a 2020 Recirculated\r\nDraft Environmental Impact Report (“2020 RDEIR”) to address the four sections\r\nof the original EIR found by this court to be inadequate. The 2020 RDEIR was available for a 45-day\r\npublic review period, ending August 5, 2020. (Joint Motion (“Mot.”)” Exh. A\r\n[hereafter “2020 FEIR”] 1-1.) During the\r\n2020 RDEIR’s public review and comment period, Irwindale received six comment\r\nletters, two of which were submitted by Petitioners Baldwin Park and Waste\r\nManagement. (2020 FEIR 1-2.) SCAQMD did\r\nnot submit any comments with respect to the 2020 FEIR and the revised analysis\r\nof air quality impacts. (2020 FEIR 1-2.)\r\nIrwindale prepared written responses to each comment in relation to those\r\nanalyses that were revised and recirculated within the 2020 RDEIR. Together, the comment letters, the\r\nIrwindale’s written responses to those letters, and the 2020 RDEIR, as revised,\r\nwere compiled into the 2020 FEIR. The 2020 FEIR also includes all of the\r\nmaterials included and incorporated by reference in the 2014 Draft EIR, 2014\r\nRDEIR, 2016 Final EIR, and 2017 Addendum No. 1 to the 2016 Final EIR. (2020\r\nFEIR 1-7, 1-10.)

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On February 24, 2021, the City Council and the\r\nSuccessor Agency to the Irwindale Community Redevelopment Agency held a duly\r\nnoticed, joint public hearing on the 2020 FEIR and the Project. At the meeting,\r\nthe City certified the 2020 FEIR and approved the Project’s DDA, General Plan\r\nAmendment, Conditional Use Permit, Site Plan and Design Review and, Franchise\r\nand Facility Operations Agreement. (Mot.\r\nExh. B.)

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On March 26, 2021, Irwindale\r\nfiled a joint supplemental return to writ of mandate asserting that it had\r\nfully complied with the writ.

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On March 26, 2021, Respondents\r\nfiled and served the instant motions to discharge writ. The court has received Baldwin Park’s\r\nopposition and Respondents’ reply thereto. \r\nWM has not filed an opposition. \r\nOn July 8, 2021, Respondents filed and served a notice of non-receipt of\r\nopposition from WM.

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In support of the instant\r\nmotion, Irwindale has\r\nlodged the 2020 FEIR and attached appendices 1-3, including technical\r\nmemorandum No. 1 (appendix 2). In\r\nopposition, Baldwin Park has lodged the 2020 Recirculated Draft EIR (“2020\r\nRDEIR”) and appendices 1-4, including two amici curiae briefs filed in the Friant\r\ncase (appendices 2-3); and Baldwin Park’s January 20, 2021, and February\r\n24, 2021, comment letters. (De Felice\r\nDecl. Exh. A-C.)

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Standard of Review

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“When a respondent believes it\r\nhas completely fulfilled the terms of a writ, its return should state that it\r\nhas satisfied the writ in full compliance with the final judgment and writ, and\r\nset out the actions taken to meet the writ's terms.” (Los\r\nAngeles Internat. Charter High School. V. Los Angeles Unified School Dist. (2012)\r\n209 Cal.App.4th 1348, 1355.)

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Public Resources Code section\r\n21168.9(b) states, in pertinent part, that “[t]he trial court shall retain\r\njurisdiction over the public agency's proceedings by way of a return to the\r\nperemptory writ until the court has determined that the public agency has\r\ncomplied with this division.” Thus, in a\r\nCEQA action, a court issuing a peremptory writ of mandate retains jurisdiction\r\nto determine the adequacy of the return and ensure full compliance with the\r\nwrit. (Ballona Wetlands Land Trust v. City of L.A. (2011) 201 Cal.App.4th\r\n455, 479.) “[T]he trial court's retained\r\njurisdiction under … section 21168.9[b] is limited to ensuring\r\ncompliance with the peremptory writ of mandate…. [A] trial court evaluating a\r\nreturn to the writ may not consider any newly asserted challenges arising from\r\nthe same material facts in existence at the time of the judgment.” (Id. at 480.) \r\n“After the entry of judgment and issuance of a peremptory writ of\r\nmandate, an order concerning compliance with the writ is a postjudgment order\r\nand is appealable as an order relating to the enforcement of a judgment.” (Id. at 464, fn. 2.)

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In considering the 2020 FEIR’s\r\nadequacy, the court applies the applicable CEQA standard of review, and upholds\r\na lead agency’s decision to recertify an EIR and reapprove a project unless it\r\nfinds the city prejudicially abused its discretion. (Oakland Heritage\r\nAlliance v. City of Oakland (2011) 195 Cal.App.4th 884, 897-898; Pub.\r\nResources Code, § 21168.5.) “Abuse of discretion is established if the agency has\r\nnot proceeded in a manner required by law or if the determination or decision\r\nis not supported by substantial evidence.” \r\n(§ 21168.5; see also Vineyard Area\r\nCitizens for Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40\r\nCal.4th 412, 435.) Challenges to an\r\nagency’s failure to proceed in a manner required by CEQA are subject to a less\r\ndeferential standard than challenges to an agency’s factual conclusions. (Vineyard,\r\nsupra at 435.) In reviewing these\r\nclaims, the court must “determine de novo\r\nwhether the agency has employed the correct procedures.” (Ibid.; see Dry Creek Citizens Coalition v. County of Tulare (1999) 70\r\nCal.App.4th 20, 26.)

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Generally\r\nin\r\na CEQA action, the petitioner has the burden to show that a public agency\r\nprejudicially abused its discretion.\r\n The EIR is presumed legally\r\nadequate … and the agency's certification of the EIR is presumed correct ….\r\nPersons challenging the EIR therefore bear the burden of proving it is legally\r\ninadequate and that the agency abused its discretion in certifying it.” (Cherry Valley Pass Acres and Neighbors v. City of\r\nBeaumont (2010) 190 Cal. App. 4th 316,\r\n327-28.) The petitioner\r\n“challenging [an] EIR for insufficient evidence must lay out the evidence\r\nfavorable to the other side and show why it is lacking; [petitioner] cannot\r\ncarry its burden of demonstrating error if it fails to do so.” (King & Gardiner Farms, LLC v. County\r\nof Kern (2020) 45 Cal.App.5th 814, 850; see also South Orange\r\nCounty Wastewater Authority v. City of Dana Point (2011) 196 Cal.App.4th 1604, 1612.) Furthermore, Petitioners also have\r\nthe burden to supply a sufficient administrative record. (Elizabeth\r\nD. v. Zolin (1993) 21 Cal.App.4th 347, 354.) The court is not\r\nrequired to search the record to ascertain whether it supports an appellant’s\r\ncontentions, nor make the parties’ arguments for them. (Inyo Citizens for Better Planning v. Inyo\r\nCounty Board of Supervisors (2009) 180 Cal.App.4th 1, 14.)

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At the hearing, Counsel should\r\naddress which party has the burden of proof on the question of whether or not\r\nIrwindale corrected the abuses of discretion identified in the Decision. The briefs do not analyze that issue. Subject to argument, the court tentatively concludes\r\nthat Irwindale has the initial burden to show in its return or other evidence\r\nthat it has complied with the writ. \r\nHowever, once that initial burden is met, Petitioners have the burden to\r\nshow that the 2020 FEIR did not correct the abuses of discretion found in the\r\nDecision. Placing the ultimate burden on\r\nPetitioners to show a prejudicial abuse of discretion is consistent with the\r\nusual procedure in CEQA actions outlined above. \r\nFurthermore, case law supports that the petitioner should challenge the\r\nvalidity of a return to a writ of mandate. \r\n(See generally Ballona Wetlands Land Trust v. City of L.A. (2011)\r\n201 Cal.App.4th 455, 464 [petitioner filed objections to return and\r\nsupplemental petition]; City of Carmel-By-The-Sea v. Board of Supervisors (1982)\r\n137 Cal.App.3d 964, 971 [“Where … the return states that the court's mandate\r\nhas been carried out, the petitioner may challenge the validity of that claim\r\nin one of several ways.”].)

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Analysis

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Irwindale Complied with Paragraphs 1, 3, 4, and 5 of the Writ

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Irwindale\r\ncomplied with paragraphs 1, 3, 4, and 5 of the writ by setting aside its\r\ncertification of the EIR and other Project approvals; by proceeding in the\r\nmanner required by CEQA for all procedural matters, including recirculation and\r\npublic comment and review of the RDEIR; by taking no physical actions to advance\r\nthe Project; and by filing initial and supplemental returns. (See Notice of Mot. 5-6 and Exh. B; see\r\nReturns filed 12/19/19, 1/17/20, and 3/26/21.) \r\nPetitioners make no argument to the contrary.

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Irwindale\r\ncontends that it also complied with paragraph 3 of the writ, which required\r\nIrwindale to “take all steps necessary to bring the EIR into compliance with\r\nCEQA with respect to the EIR’s project description and analysis of truck\r\nfueling operations, the EIR’s analysis of transportation energy impacts, the\r\nEIR’s analysis of health risks associated with the Project’s emissions of ROG,\r\nNOx, and ozone, or explain why this analysis would be infeasible, and the EIR’s\r\nanalysis and mitigation of greenhouse gas (‘GHG’) emissions, as articulated\r\nmore fully by the Court in its Decision in this matter dated September 5, 2019.” (See Mot. 4-14.) Baldwin Park contends that Irwindale’s\r\nanalysis of these issues in the 2020 FEIR is inadequate and is not supported by\r\nsubstantial evidence.

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Health Impact Analysis of Criteria Air Pollutant Emissions

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In its Decision,\r\nthe court determined that Irwindale prejudicially abused its discretion\r\nby failing to analyze health risks associated with ROG, NOx, and ozone\r\nemissions, or, in the alternative, explain why it would be infeasible to do so.\r\n(Decision 20.) The court also concluded that the public was deprived of a\r\nuseful comparison because standards for ozone and NO2 were presented\r\nin parts per million, while Project emissions were presented in pounds per day. (Id. 18.) \r\n

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The 2020 FEIR\r\nReasonably Determinates that Further Ozone Modeling is Infeasible

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To address the Decision, the\r\n2020 FEIR details the prior health risk findings of the 2014 RDEIR, and why\r\nmodeling of the Project’s ozone emissions is not feasible and would not provide\r\nadditional meaningful information. (2020 FEIR 6-1.)

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As discussed in the Decision\r\n(see pp. 17-20), an “EIR must provide an adequate analysis to inform the public\r\nhow its bare numbers translate to create potential adverse impacts or it must adequately\r\nexplain what the agency does know\r\nand why, given existing scientific constraints, it cannot translate potential\r\nhealth impacts further. (Sierra Club v. County of Fresno (2018) 6\r\nCal.5th 502, 521 [“Friant Ranch”].) [I]f it is not scientifically\r\npossible to do more than has already been done to connect air quality effects\r\nwith potential human health impacts, the EIR itself must explain why, in a\r\nmanner reasonably calculated to inform the public of the scope of what is and\r\nis not yet known about the Project's impacts.” \r\n(Friant Ranch, supra at 520.)

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Relevant background\r\ninformation concerning criteria air pollutants, including NOx and ozone, is\r\ndiscussed in the Decision and 2020 FEIR. \r\n(Decision 17-19; 2020 FEIR 6-4-6-9.) \r\nOzone is a regional air pollutant produced in the atmosphere\r\nthrough a complex series of photo-chemical reactions involving ROG and\r\nNOx. (2020 FEIR 6-5 and Appendix\r\n2.) The 2020 FEIR, like the\r\noriginal EIR, finds that the Project’s operational ROG and NOx emissions would\r\nexceed applicable SCAQMD regional mass daily thresholds. (2020 FEIR 6-2.) Specifically, the total proposed, mitigated\r\nProject would emit 81 pounds/day of ROG and 1,323 pounds/day of NOx. (Id. 6-3.) \r\nThe SCAQMD thresholds of significance for ROG and NOx are 55\r\npounds/day. (Ibid.) On an annual basis, the mitigated Project\r\nwould emit 15 tons/year of ROG and 241 tons/year of NOx. SCAQMD thresholds are 10 tons/year for each\r\npollutant. (Mot. 275; Table 1 at 2020\r\nFEIR Appendix 2 at 2 of 7.)

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The 2020 FEIR states that exceeding\r\nSCAQMD emissions thresholds for ROG and NOx does not, alone, provide sufficient\r\ninformation to determine changes in regional ozone concentrations or specific\r\nhealth impacts related to those changes. (2020 FEIR 7-76.) The 2020 FEIR explains that\r\ndetermining the amount of ozone formed in the atmosphere as a result of a\r\nspecific project’s ROG and NOx emissions requires complicated modeling, as\r\nozone concentrations are dependent upon the presence of sunlight, topography,\r\natmospheric stability, atmospheric chemistry, and wind patterns, and the\r\ncomplexities of predicting ground-level ozone concentrations in relation to\r\nambient standards. (2020 FEIR 6-3, 6-5, 6-15.)

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The 2020 FEIR relies on\r\nTechnical Memorandum No. 1, prepared by Paul Miller, a senior scientist and\r\nmanaging principal of an environmental consulting firm. Miller summarizes information from the 2020\r\nFEIR and analysis from SCAQMD’s amicus brief in the Friant Ranch\r\ncase. Because it is important to\r\nIrwindale’s compliance with CEQA and the writ, the court quotes Miller’s\r\nmemorandum at length:

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The following analysis\r\naddresses whether the level of ROG and NOx emissions generated by the Project\r\nare enough to feasibly predict changes in regional ozone levels and resulting\r\nhealth effects….

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…. SCAQMD has unique scientific expertise on\r\nhow, and whether, lead agencies can correlate air quality impacts from\r\nindividual projects with regional ozone concentrations and resulting health impacts.\r\n

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In its amicus brief, SCAQMD explains that it is\r\nfeasible to conduct Health Risk Assessments for projects with fixed toxic air\r\ncontaminant emissions located near an intersection in a mixed-use area, where\r\nreceptor locations are known. Consistent with this, as part of the 2014 RDEIR\r\nfor the Irwindale MRF/TS EIR, a Health Risk Assessment was prepared to evaluate\r\ntoxic air contaminants, including emissions from the convenience store/public\r\ngas station that is part of the Project, on known receptor locations.

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SCAQMD also has determined that for “criteria\r\npollutants, such as ozone, it may be more difficult to quantify health impacts”\r\nin part because “it takes a large amount of additional precursor compounds to\r\ncause a modeled increase in ambient ozone levels over an entire region.” There\r\nare two studies that are summarized in the SCAQMD amicus brief that address the\r\nsize of projects necessary to estimate regional ozone increases from project\r\nemissions. For each of these studies, the SCAQMD was able to correlate\r\nemissions of ozone precursors with regional ozone levels. These studies are:\r\n(1) the analysis of SCAQMD Rule 13156 , and (2) analyses prepared in support of\r\nthe development of the SCAQMD 2012 Air Quality Management Plan. However, as\r\ndiscussed below, the scale of emissions in both of these examples are not\r\ncomparable to the scale of emissions emitted by the Irwindale MRF/TS Project.

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In the first example, SCAQMD notes that for\r\nextremely large projects like those included in the analysis of Rule 1315,\r\nchanges in regional ozone and, as a result, ozone-related health impacts could\r\nbe identified when the amount of ozone precursor emissions are at a certain\r\nscale. The Rule 1315 analysis looked at ozone precursor emissions of 1,208 tons\r\nper year of NOx and 16,275 tons per year of ROG. These emissions amounts\r\naccounted for essentially all the estimated increases in emissions due to new\r\nor modified air pollutant sources in the SCAQMD between 2010 and 2030. SCAQMD\r\nwas able to establish the location of future emissions based upon an assumption\r\nthat new projects would be built in the same locations and proportions as\r\nexisting stationary sources. Based on the sheer scale of these ozone precursor\r\nemissions, the SCAQMD was able to correlate secondary ozone formation with the\r\nprecursor emissions caused by the aggregate of all new source emissions\r\nanticipated in the basin over a 20 year period.

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The fact that SCAQMD was able to correlate\r\nozone precursor emissions of NOx and ROG as part of the Rule 1315 analysis does\r\nnot indicate that the City of Irwindale can do the same as part of the\r\nIrwindale MRF/TS Project analysis. The amount of emissions analyzed in the Rule\r\n1315 analysis is not comparable to the amount of emissions estimated for the\r\nIrwindale MRF/TS Project. The SCAQMD ozone precursor compounds for the Rule\r\n1315 analysis were 17,483 tons per year of ozone precursors (NOx + ROG). The\r\nIrwindale MRF/TS is estimated to emit a total of 256 tons per year (NOx + ROG).\r\nThe Irwindale MRF/TS is therefore projected to have worst-case emissions of\r\nless than 1.5% of the precursor compounds accounted for in the SCAQMD Rule 1315\r\nanalysis. With less than 1.5% of the precursor compounds, the Irwindale MRF/TS\r\nemissions are several magnitudes less than the emissions levels identified in\r\nthe SCAQMD Rule 1315 analysis that could be correlated to modeled ozone changes\r\nand resulting health impacts of that ozone.

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The second example of a large project for which\r\nozone increases can be reasonably modeled is the analysis of ozone precursors in\r\nthe SCAQMD's 2012 AQMP….This analysis considered a total of 225,935 tons/year\r\nof ozone precursors and correlated that amount of precursor emissions to only a\r\nchange of ozone levels of 9 parts per billion. For reference, SCAQMD’s daily\r\nozone 8-hour average standard is 75 parts per billion. The Irwindale MRF/TS is\r\nprojected to emit less than 0.12% of the precursor compounds that the SCAQMD\r\nwas able to correlate to the relatively small 9 ppb change of ozone levels,\r\nindicating that the amount of ozone precursor emissions generated by the\r\nIrwindale MRF/TS could, at best, only be correlated to a negligible amount of\r\nozone. Ozone changes of that negligible amount would be meaningless in any\r\neffort to estimate resulting health impacts.

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As explained in its amicus brief, the SCAQMD\r\nhas also concluded that for smaller projects, emitting only 10 tons per year of\r\nNOx or ROG , potential effects cannot be detected in the regional air quality\r\nmodels. This is consistent with SCAQMD’s finding that, as discussed above,\r\nemissions of nearly 226,000 tons per year altered the modeling results for\r\nozone production by only 9 parts per billion. With a total of 256 tons per day\r\nof ozone precursors, the Irwindale MRF/TS is statistically closer to the SCAQMD’s\r\n10 tons per year example than the Rule 1315 analysis with 17,483 tons per year\r\nof ozone precursors or the 2012 AQMD modeling with 225,935 tons per year of\r\nozone precursors.

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Given the above, the 256 tons per day of ozone\r\nprecursors attributable to the Irwindale MRF/TS Project cannot be meaningfully\r\ncorrelated to actual ozone increases in the region, if such an increase is even\r\ndetectable at all. As such, no increase in regional health effects resulting\r\nfrom that ozone increase can be determined.

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Significantly, Miller also states that “[m]ost of the\r\nemissions from the Project are from mobile sources and that further complicates\r\ndetermining any changes to regional concentrations of ozone that could affect\r\nhealth.” (See 2020 FEIR, Appendix\r\n2.)

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The 2020 FEIR\r\nalso relies, in part, on an amicus brief filed by the San Joaquin Valley Air\r\nPollution Control District (“SJVAPCD”) in the Friant Ranch case. (2020 FEIR 6-13-6-14.) In this brief, SJVAPCD asserted, inter\r\nalia, that currently available modeling tools are not equipped to provide a\r\nmeaningful analysis of the correlation between an individual development\r\nproject’s air emissions and specific human health impacts, including with\r\nrespect to ozone. (See De Felice Decl.\r\nExh. A at pp. 162-168 of 235.)

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Respondents contend that\r\nTechnical Memorandum No. 1 is substantial evidence that support Irwindale’s\r\ndetermination that modeling of the Project’s ozone emissions is not\r\nfeasible. (Mot. 10.) This argument is persuasive. Miller identifies his qualifications as an\r\nair quality specialist and expert. (See\r\nMot. 280; 2020 FEIR Appendix 2 at p. 7 of 7.) \r\nBaldwin Park does not challenge Miller’s expert qualifications. Based on the SCAQMD and SJVAPCD amici briefs,\r\nas well as evidence in the record, Miller opines that it is technically\r\ninfeasible to connect the Project’s emissions of ROC and NOx to regional ozone\r\nconcentration increases. Miller’s expert\r\nopinion is substantial evidence.

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Baldwin Park’s arguments in\r\nresponse are not persuasive. (Oppo. 16-19.) Baldwin Park contends that “[l]egal briefs\r\nare not substantial evidence” and Miller’s memorandum “provides no expert\r\nopinion as to the feasibility of conducting the analysis required by Friant\r\nRanch; the assessment only summarizes the legal briefs filed by the air\r\ndistricts and correlates the data in the briefs to the Project.” (Oppo. 17.) \r\nThe court disagrees. Miller does\r\nnot simply “correlate” the data in the briefs to the Project. He provides an expert opinion about the\r\ninfeasibility of additional analysis of ozone emissions from the Project. His opinion is substantial evidence. Further, the court is not persuaded that the\r\nlegal briefs from SCAQMD and SJVAPCD have no evidentiary value. The Project is in the South Coast Air Basin\r\nand under the jurisdiction of SCAQMD. The\r\nstatements of SCAQMD about the feasibility of modeling of ozone emissions are\r\nparticularly relevant.

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Baldwin Park\r\ncites no expert opinion that supports its assertions that the Project emissions\r\nof ROC and NOx can be “correlated” to the two studies discussed in the SCAQMD\r\nbrief and Miller’s memorandum. (Oppo.\r\n17-19.) Such technical analysis is\r\nclearly a matter for experts. Thus, for\r\ninstance, Miller opined that “[t]he amount of emissions analyzed in the Rule\r\n1315 analysis is not comparable.” (2020\r\nFEIR Appendix 2, p. 5.) “With less than\r\n1.5% of the precursor compounds, the Irwindale MRF/TS emissions are several\r\nmagnitudes less than the emissions levels identified in the SCAQMD Rule 1315\r\nanalysis that could be correlated to modeled ozone changes and resulting health\r\nimpacts of that ozone.” (Ibid.) While Baldwin Park cites no conflicting expert\r\nopinion, even if it had, that would not show a prejudicial abuse of discretion. (CEQA Guidelines, § 15151 [“Disagreement among\r\nexperts does not make an EIR inadequate”].) \r\n

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Baldwin Park\r\nalso asserts that the two studies discussed in the SCAQMD brief were conducted\r\n“over a decade ago”; the SCAQMD brief “was based on 2015 technology”; and\r\n“[n]either the 2020 EIR nor the briefs make any mention of technological\r\nadvancements over the past decade.” \r\n(Oppo. 18.) Baldwin Park cites no\r\nevidence of technological advancements since the SCAQMD brief or the studies discussed\r\nin it. Baldwin Park’s argument is\r\nunsupported by the record and is based on speculation. (See e.g. CEQA Guidelines, §\r\n15384(a) [“Argument, speculation, unsubstantiated opinion … does not\r\nconstitute substantial evidence.”])

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Based on the foregoing,\r\nIrwindale reasonably concluded that the Project’s ozone precursors cannot be\r\nmeaningfully correlated to actual ozone increases in the region or significant\r\nhealth impacts related to ozone. These\r\nfindings are supported by substantial evidence. \r\nBaldwin Park does not show a prejudicial abuse of discretion.

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The 2020 FEIR\r\nAdequately Addresses Potential Local Health Impacts from ROG and NOx

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Separate from potential ozone impacts, the\r\nDecision also found, generally, that the original EIR did not analyze health\r\nimpacts associated with ROG and NOx emissions. \r\n(Decision 17-20.)

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The 2020\r\nFEIR asserts that “[r]egional health effects are not directly caused by ROG and\r\nNOx, but from the secondary production of ozone from these compounds.” (2020 FEIR 7-76.) The 2020 FEIR and attached appendices,\r\nincluding technical memorandum No. 1 and SCAQMD’s amicus brief in Friant\r\nRanch, provide substantial evidence in support of this statement. (See e.g. 2020 FEIR 6-1-6-15 and Appendix 2\r\nat 2, fn. 2; De Felice Decl. Exh. A at Appendix 2.) In opposition, Baldwin Park does not develop\r\nan argument, with discussion of the record, that further CEQA analysis is\r\nrequired for regional impacts of ROG and NOx separate from ozone. (Oppo. 16-19; see Sehulster\r\nTunnels/Pre-Con v. Traylor Brothers, Inc. (2003) 111 Cal.App.4th 1328,\r\n1345, fn. 16 [failure to address point is “equivalent to a concession”].)

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Respondents contend, citing\r\nthe record, that “the 2020 FEIR explains how local health impacts from NOx and\r\nROG at the nearest sensitive receptor to the Project site will be less than\r\nsignificant.” (Mot. 10, fn. 2, citing\r\n2020 FEIR 6-10, 7-46, AR 4199.) Most of the Project’s emissions of NOx and ROG\r\nare mobile emissions along truck routes and would be dispersed throughout a\r\ngreater area, and not emitted from a single point source. (2020 FEIR, Appendix 2 at fn. 2 at Mot. p.\r\n275 of 787.) Because NO2 is\r\nthe primary health concern related to NOx, localized health impacts associated\r\nwith NOx emissions would be less than significant when NO2\r\nconcentrations are less than 0.18 ppm, and the 2014 RDEIR’s local air impact\r\nanalysis and HRA determined that, with the implementation of mitigation, NO2\r\nconcentrations (including both as a result of the Project and any background\r\nconcentrations) would not exceed 0.15 ppm. (2020 FEIR 6-10.) ROG is a general term for emissions that\r\ninclude “Toxic Air Contaminants” or “TACs.” (2020 FEIR 6-9, 7-46.) The 2020\r\nFEIR explains that the 2014 RDEIR included a HRA that determined health risk\r\nimpacts as a result of TAC emissions would be less than significant because the\r\nProject would not result in cancer risks above the SCAQMD’s significance\r\nthreshold of 10 in one million. (2020 FEIR 6-10.)[1] In opposition, Baldwin Park\r\ndoes not appear to respond to these arguments about the 2020 FEIR analysis of\r\nlocal health impacts from NOx and ROG. \r\n(Oppo. 16-19.) The court\r\nconcludes that the foregoing analysis of NOx and ROG local health impacts is\r\nsupported by substantial evidence and is sufficient for informed decisionmaking\r\nunder CEQA.

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Irwindale complied with the\r\nwrit and sufficiently analyzed non-ozone-related health impacts of Project\r\nemissions of NOx and ROG.

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Units of\r\nMeasurement in EIR Analysis of Health Risks from Air Emissions

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In finding\r\nthe EIR inadequate, the Decision noted that information about state and\r\nnational standards for ozone and NO2 are provided in parts per\r\nmillion, while the Project emissions are estimated in pounds per day. (Decision 18-19.) The 2020 FEIR shows that SCAQMD significance\r\nthresholds for specific pollutants are established in pounds per day, and the\r\nProject’s emissions are similarly presented in pounds per day. (2020 FEIR 6-3\r\n[Table 6-1].) The 2020 FEIR\r\nalso indicates that state and national standards for ambient air quality are\r\nestablished in terms of “parts per million” or “parts per billion” because\r\nthese are denotations of concentration. \r\n(See e.g. 2020 FEIR 6-10.) In\r\ncontext of the recirculated analysis about air quality impacts, the different\r\nunits of measurements did not preclude informed decisionmaking. Baldwin Park has not argued to the contrary\r\nin opposition.

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The 2020\r\nFEIR revised analysis of health risks related to air emissions complies with\r\nthe writ.

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Greenhouse Gas Emissions

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In the\r\nDecision, the court found that the 2014 RDEIR did not include factual or\r\nscientific justification for utilizing the SCAQMD GHG emissions significance\r\nthreshold of 10,000 MTCO2e/year in its analysis of Project\r\nimpacts. Relatedly, the court also found\r\nthat Irwindale prejudicially abused its discretion in analyzing the\r\neffectiveness of Mitigation Measure AQ-22 in reducing the Project’s GHG\r\nemissions to less than significant. \r\n(Decision 34, 37-41.)

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Irwindale’s Selection of Net Zero Threshold is\r\nSupported by Substantial Evidence

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To address the court’s ruling,\r\nIrwindale decided in the 2020 FEIR to apply a more conservative net zero\r\nthreshold in the revised and recirculated GHG emissions analysis. (2020 FEIR\r\n4-7.) To meet a net zero threshold, all of a project’s emissions must be eliminated\r\nor offset, and the environmental baseline status quo retained. (2020 FEIR 4-7,\r\n4-8, 4-9.)

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“‘CEQA grants agencies discretion to develop\r\ntheir own thresholds of significance’ and an agency's choice of a significance\r\nthreshold will be upheld if founded on substantial evidence.” (Mission\r\nBay Alliance v. Office of Community Investment & Infrastructure (2016)\r\n6 Cal.App.5th 160, 206; see CEQA Guidelines § 15064(b).) Irwindale’s selection of a net zero threshold\r\nto analyze GHG emissions impacts is supported by substantial evidence, given\r\nthat a project is not required, under CEQA, to reduce impacts beyond those\r\ngenerated by the project. (Pub. Resources Code §§ 21068, 21100(d).)

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Revised\r\n“Regional Efficiencies” Analysis and Methodology

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Based on a revised “regional efficiencies”\r\nanalysis, the 2020 FEIR determines that GHG emissions impacts will be less than\r\nsignificant and that no mitigation is required. (See 2020 FEIR 4-23.)

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To compare the Project’s GHG\r\nemissions against the net zero threshold, the 2020 FEIR first identifies the\r\ntotal emissions from Project construction, operation of the convenience store\r\nand its gas station, area sources, onsite energy use, onsite MRF/TS equipment,\r\nand employee vehicle trips. (2020 FEIR 4-10.) These emissions calculations were\r\nincluded in the 2017 Addendum to the 2016 FEIR, and because no changes to the\r\nProject have occurred since 2017, these calculations remain valid and\r\napplicable.

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Next, the 2020 FEIR addresses\r\nemissions from truck trips bringing materials to the MRF/TS (“collection\r\ntrips”) and taking materials from the MRF/TS to end destinations (“transfer\r\ntrips”). (Ibid.) The 2020 FEIR concludes that the Project itself does not\r\ngenerate new sources of solid waste, and therefore would not generate the need\r\nfor new truck trips that are not already in existence. (2020 FEIR 4-9.) While the 2014 RDEIR applied a methodology\r\nthat treated all waste hauling truck trips as “new” truck trips, the 2020 FEIR\r\nconcludes that, in actuality, the Project redistributes existing waste hauling\r\ntrips in a more efficient manner by adding a new MRF/TS facility to a highly\r\nurbanized area, closer to many of the waste markets that Athens currently\r\nservices. (2020 FEIR 4-11.) Because GHG\r\nemissions impacts do not change based on the specific location in which they\r\noccur, the 2020 FEIR concludes that a redistributed existing truck trip that still\r\noccurs in the same region, if not along the same route, would not cause an\r\nincrease or decrease in the significance those emissions. (Id. at 4-12.) Thus, GHG emissions impacts will be less than\r\nsignificant and that no mitigation is required. (See 2020 FEIR 4-23.)

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Respondents contend that the\r\n2020 FEIR “determines through a robust efficiencies analysis that the Project\r\nwill reduce baseline GHG emissions attributable to waste hauling trucks.” (Mot. 14.) \r\nBased on this analysis and the finding that no mitigation is required\r\nfor GHG emissions, Respondents contend that the 2020 FEIR complies with the\r\nwrit.

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Respondents’ contentions are\r\nsupported by the 2020 FEIR and substantial evidence. Specifically, the 2020 FEIR includes a detailed\r\nregional efficiencies analysis to determine how integration of the Project into\r\nthe region’s waste stream will reduce miles traveled by existing truck trips,\r\nincluding trips from the Project to a landfill. (2020 FEIR 4-13 through\r\n4-23.) The analysis determines that\r\noverall, the Project will reduce waste collection truck trip emissions by 4,868\r\nMTCO2e/year, transfer truck emissions by 2,035 MTCO2e/year, and self-haul\r\ntruck emissions by 487 MTCO2e/year. (2020 FEIR\r\n4-24.) The 2020 FEIR concluded that,\r\nwhen these reductions are combined with emissions generated by construction,\r\nenergy use, the convenience store and gas station, onsite equipment, and\r\nemployee car trips, the Project results in an overall GHG emissions reduction\r\nfrom the existing baseline of 1,814 MTCO2e/year. (Ibid.) Thus, the 2020 FEIR determines that GHG\r\nemissions impacts will be less than significant. (2020 FEIR 4-23.) From this study and other substantial evidence\r\ncited in the 2020 FEIR, it appears that the revised GHG emissions analysis\r\ncomplies with the writ and with CEQA. \r\nRespondents make a sufficient showing that, if not rebutted by Baldwin\r\nPark, supports discharging the writ with respect to the GHG emissions\r\nanalysis.

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Baldwin Park contends that the\r\nfinding of “no new truck trips” is not supported by substantial evidence. Baldwin Park contends that “the Project will\r\ngenerate new truck trips and those truck trips will generate GHG\r\nemissions.” (Oppo. 12.) Notably, Baldwin Park does not cite any\r\nexpert opinion or study to support its assertion that the “no new truck trips”\r\nfinding is unreasonable. Rather, as\r\ndiscussed below, Baldwin Park’s opposition is based on its interpretation of isolated\r\nstatements in the 2020 FEIR.

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Baldwin Park contends that\r\nbecause the purpose of the Project is to divert more waste away from landfills,\r\n“that diversion will necessarily add more trucks to the existing environment\r\nbecause waste that is presently taken directly from a customer to a landfill\r\nwill now have an additional, intermediary destination, the Project.” (Oppo. 5.) \r\nBaldwin Park contends that the 2020 FEIR confirms that the Project will\r\nreceive waste that is currently “hauled to another existing MRF/TS and/or\r\nlandfill.” (Oppo. 10, citing 2020 FEIR\r\n4-14.) The context for this quotation is\r\nimportant. In pertinent part, the 2020\r\nFEIR states:

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4.4.4 Waste Hauling Trip\r\nEmissions: Collection Trucks

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The Proposed Project would not\r\ncause the generation of any new waste materials in the region and would instead\r\nprocess waste materials that are, in the baseline condition, currently\r\nprocessed at other existing waste sorting and transferring facilities within\r\nthe region. Therefore, nearly all,\r\nif not all, waste hauling trips to and from the Proposed Project would be\r\nredirected existing trips by waste collection vehicles. These vehicles\r\nwould be (and are, already) collecting solid waste near the City of Irwindale\r\nwith or without the Proposed Project, and these trips would (and do currently)\r\ngo to other existing materials processing and sorting facilities, if the\r\nProposed Project were never constructed.

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….[¶¶]

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Waste collection trips bring\r\nsolid waste materials from surrounding waste-generating markets to MRF/TS\r\nfacilities. They include both commercial waste collection trucks and\r\nself-haulers, which are individuals or small construction contractors who haul\r\ntheir own waste, usually in personal passenger vehicles, pick-up trucks, or\r\nsmall trailers, to the MRF/TS for disposal. Commercial waste haulers utilizing\r\nthe Project will include both Athens Services’ own waste collection truck\r\nfleet, and other collection trucks run by other commercial haulers, who choose,\r\nfor one reason or another, to dispose of and process their waste at an Athens\r\nServices facility.

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Because the Proposed Project\r\ndoes not generate waste, it can be reasonably expected that new\r\ncontracts—either between other haulers and the Proposed Project, or between\r\nother communities and Athens—would not represent new waste hauling trips, given\r\nthat any market redirected to the Proposed Project in the future, currently\r\nexists and currently already generates waste that is hauled to another existing\r\nMRF/TS and/or landfill. For the same reasons that Athens will\r\nreroute waste collection trips from its existing markets, future markets would\r\nalso be expected to reroute in the manner that is most efficient and cost\r\neffective, and cost savings are typically associated with shorter haul\r\ndistances.

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….[¶¶]

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Athens Services currently stations a truck\r\nfleet at its Vincent Truck Yard, located within the City of Irwindale, near the\r\nProposed Project site. Currently, this fleet collects waste from surrounding\r\nmarkets, and takes this waste to the existing Industry MRF/TS in the City of\r\nIndustry.\r\nThe Applicant will reroute these trucks to the Proposed Project upon its\r\nopening to maximize operational efficiency and significantly reduce miles\r\ntraveled by the existing Athens Services’ truck fleet. Currently, a typical\r\nAthens Services truck route begins at the Vincent Truck Yard in Irwindale,\r\ntravels to a specified market, and then carries the collected solid waste\r\nmaterials to the existing Industry MRF/TS. At the end of the day, the truck\r\nthen travels from the existing Industry MRF/TS back to the Vincent Truck Yard.\r\nA single truck may travel to and from the MRF/TS to the market more than once\r\nbefore returning to the Vincent Truck Yard at the end of the day, but no more\r\nthan three times per day.

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Table 4-1 compares the Athens Services\r\ncollection truck miles traveled under the existing condition, to the Athens\r\ncollection truck miles traveled under the Proposed Project condition. To do so,\r\nthe table identifies those markets and Athens waste collection routes that the\r\nApplicant will reroute after completion of the Proposed Project. The table\r\nidentifies the number of miles currently traveled by an Athens waste collection\r\ntruck from each market to the existing Industry MRF/TS in the City of Industry,\r\nas well as the number of miles that will be traveled from each market to the\r\nProposed Project…. (2020 FEIR 4-14-4-15 and Table 4-1.)

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In context, the statement cited by Baldwin Park\r\nis not persuasive evidence that waste that would have normally gone straight to\r\na landfill would now be redirected to the Project first. Rather, this part of the 2020 FEIR supports\r\nthat Athens trucks and other waste haulers, under baseline conditions, generally\r\ntake waste to an intermediary MRF/TS facility. \r\nThe sentence quoted by Baldwin Park suggests that, to the extent there\r\nis a small percentage of waste that is taken directly to a landfill, for\r\ninstance because it cannot be source separated, the Project generally would not\r\nbe expected to change such behavior. \r\n(See Reply 6, fn. 2; see also 2020 FEIR 4-23, fn. 37 [detailing\r\nanomalies that sometimes present themselves and which are too speculative to\r\ncalculate].) Baldwin Park cites no\r\nevidence that would suggest such assumption is unreasonable or not supported by\r\nsubstantial evidence. Furthermore, even\r\nif some small percentage of waste haulers presently take waste directly to a\r\nlandfill, and even if some percentage of those waste haulers could be expected\r\nto take waste to the Project first, Baldwin Park cites no evidence that this\r\npercentage is meaningful and could materially change the GHG emissions\r\nanalysis. Baldwin Park’s argument is\r\nbased on speculation, rather than evidence. \r\nThus, Baldwin Park’s diagram at page 9 of the opposition\r\n– asserting that the Project will add a third “leg of the trip” – does not show\r\na prejudicial abuse of discretion in the 2020 FEIR.

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Baldwin Park contends that the\r\n“2020 EIR also fails to adequately analyze GHG emissions from the Project’s\r\ntransfer trucks…. These are trucks that are new to the environmental baseline\r\nbecause the Project is increasing capacity of MRF/TS projects in the\r\nregion—i.e., the waste is presently being sent directly to a landfill and the\r\nProject will alter that traffic pattern with the introduction of an\r\nintermediary stop.” (Oppo. 13.) This argument is unpersuasive for the same\r\nreasons discussed above with respect to collection trucks. The FEIR\r\nspecifically analyzes transfer truck emissions. \r\nThe 2020 FEIR’s analysis of this issue is reasonable and supported by\r\nsubstantial evidence.

\r\n\r\n

\r\n\r\n

Baldwin Park contends that\r\n“assuming arguendo” that the 2020 FEIR is correct in all the above respects,\r\nthen the assumption that the Project will create no new truck trips is still flawed\r\nbecause if the processing capacity at other MRF/TS is not reduced, “the other\r\nMRF/TS will need to employ new trucks and service new customers to fulfill its\r\nprocessing capacity.” (Oppo. 10.) Contrary to Baldwin Park’s assertion, the\r\n2020 FEIR does not “acknowledge[] this outcome.” (Ibid., citing 2020 FEIR 4-15.) Nothing on page 4-15 of the 2020 FEIR\r\nsupports the inference that the Project will cause other MRF/TS facilities to\r\nemploy new trucks. Rather, this page of\r\nthe FEIR states that Athens “will reroute” trucks, which presently take waste\r\nfrom various markets, from the existing Industry MRF/TS to the Project. Baldwin Park has not identified any evidence\r\nthat the Project could be expected to increase the number of trucks used at\r\nother MRF/TS facilities. Baldwin Park’s\r\ncitation to its comment letters is not persuasive, as such letters are argument\r\nand not evidence. (See Oppo. 10, citing\r\nDe Felice Decl. Exh. B at 10.) Based on\r\nthe briefing and evidence cited, Baldwin Park’s argument about the impact of\r\nthe Project on operations of other MRF/TS facilities is speculation. Argument, speculation, and unsubstantiated\r\nopinion are not substantial evidence. (CEQA Guidelines, § 15384(a).)

\r\n\r\n

\r\n\r\n

Finally, Baldwin Park suggests\r\nthat the 2020 FEIR should have analyzed “non-Athens controlled trips”\r\nseparately from Athens trucks trips. \r\n(Oppo. 11.) The 2020 FEIR explains\r\nand provides substantial evidence that “even non-Athens controlled trips and\r\nself-haul trips will not be ‘new’ or generated by the Proposed Project; vehicle\r\nmiles saved from these trips can be quantified just as vehicle miles saved from\r\nAthens trips can be quantified.” (2020\r\nFEIR 7-30-7-31; 2020\r\nFEIR 4-13 through 4-23 and Tables.) While\r\nBaldwin Park disagrees with this analysis, it cites no conflicting\r\nevidence. Moreover, even if there were\r\nsome conflict in the evidence (which Baldwin Park does not show), that would\r\nnot prove that the FEIR analysis is unreasonable and unsupported by substantial\r\nevidence. A court may not set\r\naside any agency’s approval of an EIR on the ground that an opposite conclusion\r\nwould have been equally or more reasonable.” (Laurel Heights Improvement Assn. v. Regents\r\nof the Univ. of Calif. (1988) 47 Cal.3d 376, 393.)

\r\n\r\n

\r\n\r\n

Based on the foregoing, the\r\n2020 FEIR cites substantial evidence and fosters informed decisionmaking with\r\nregard to the revised regional efficiencies analysis. (2020 FEIR 4-13 through 4-23 and Tables.) That analysis supports the EIR finding of no\r\nGHG emissions impacts and no need for mitigation. Baldwin Park relies on speculation and\r\nargument, rather than evidence, to challenge the revised analysis. The revised and recirculated\r\nGHG emissions analysis complies with the court’s writ.

\r\n\r\n

\r\n\r\n

Transportation Energy Use

\r\n\r\n

\r\n\r\n

In the Decision, the court found that the 2014\r\nRDEIR did not include an analysis of transportation energy use impacts.\r\n(Decision 17.) To address the court’s ruling, Chapter 5.0 of the 2020 FEIR\r\nanalyzes the transportation energy impacts of the Project and explains that the\r\nProject’s overall reduction in vehicle miles traveled indicates a reduction in\r\nenergy consumption from the existing baseline, and therefore, no significant\r\nimpact would occur. (2020 FEIR 5- 10, 5-11.) The analysis also explains that\r\neven if all waste collection trips were new trips, the energy expended on waste\r\ncollection trips would still not be “wasteful or inefficient” on grounds the\r\nfuel efficiencies of the trucks are consistent with California Energy\r\nCommission averages and the Project is located within an extremely urbanized\r\narea close to existing waste markets. (2020 FEIR 5-11 through\r\n5-13.) Unless persuasively challenged by\r\nBaldwin Park, this revised analysis shows compliance with the court’s writ.

\r\n\r\n

\r\n\r\n

Baldwin Park contends that\r\n“the 2020 EIR’s analysis of the Project’s transportation energy use is based on\r\nthe flawed assumption that the Project will not generate new truck trips or\r\nvehicle miles travelled.” (Oppo.\r\n15.) The court rejects this argument for\r\nthe reasons set forth above with respect to GHG emissions.

\r\n\r\n

\r\n\r\n

Baldwin Park contends that\r\n“even assuming that the Project will not generate any new truck trips, … the\r\n2020 EIR remains flawed” because “there is no evidence to support the\r\napplication of standard fuel consumption estimates to the Project’s\r\ntrucks.” (Oppo. 15-16.) Baldwin Park points out that the EIR\r\ndescribes the Project’s trucks as “large, heavy” and requiring a lot of\r\nfuel. (Ibid., citing 2020 FEIR\r\n7-74.)

\r\n\r\n

\r\n\r\n

The 2020 FEIR states that “[s]tandard\r\nfuel consumption estimates and estimates of the project-related trips and\r\nmileage were used to determine haul truck, self-haul, employee, and convenience\r\nstore/public gas station activities.” \r\n(2020 FEIR 5-11.) The FEIR cites\r\nthe number of estimated Project trips – from all vehicles – found in the 2014\r\nRDEIR. Baldwin Park did not challenge\r\nthose estimates. (Ibid.) Various assumptions are cited in footnotes\r\n58-65 of the FEIR. “The analysis\r\ndetermined that transportation would annually require approximately five\r\nmillion gallons of diesel fuel equivalent …. This equates to a fuel efficiency\r\nof approximately 7.7 miles per gallon for diesel trucks, 22.5 miles per gallon\r\nfor gasoline vehicles, and approximately 6.1 miles per gallon of diesel fuel\r\nequivalent for CNG trucks, which is reasonably consistent with the CEC\r\nestimates for the average fuel economy for the fleet-wide mix of vehicles\r\noperating in the South Coast Air Basin region.” \r\n(Id. at 5-12.)

\r\n\r\n

\r\n\r\n

This analysis from the 2020\r\nFEIR is reasonable and supported by substantial evidence, including the data\r\nfrom the prior EIRs and footnotes 58-65. \r\nBaldwin Park’s contention seems to be that Irwindale should have used\r\nlower fuel consumption estimates for the large waste collection and transfer\r\ntrucks, which were assumed to include both diesel and CNG fueled trucks. (Id. at 5-11, fn. 58.) Baldwin Park cites no evidence that the\r\nassumption of standard fuel consumption for diesel and CNG trucks was\r\nunreasonable. Baldwin Park does not\r\nchallenge the assumptions for any other Project vehicles.

\r\n\r\n

\r\n\r\n

Irwindale complied with the\r\nwrit with respect to analysis of transportation energy impacts. Baldwin Park does not show a prejudicial\r\nabuse of discretion.

\r\n\r\n

\r\n\r\n

Truck Fueling Operations

\r\n\r\n

\r\n\r\n

In its\r\nDecision, the court founds that the original EIR’s project description included\r\ninaccuracies regarding truck fueling operations that precluded informed\r\ndecisionmaking and public participation. \r\n(Decision at 14.) The 2016 Final\r\nEIR stated that the Project includes an onsite CNG fueling facility, which was\r\ninconsistent with other information in the EIR. \r\n(Id. at 12, 14.) The 2014 RDEIR\r\nand 2016 FEIR also included inconsistent statements regarding whether large\r\ndiesel-fueled waste hauling trucks would fuel at the Project’s convenience\r\nstore gas station. (Ibid.)

\r\n\r\n

\r\n\r\n

The 2020\r\nFEIR Clarifies that CNG Fueling Occurs Offsite

\r\n\r\n

\r\n\r\n

In response\r\nto the Decision, the 2020 FEIR explains that Athens’ waste collection truck\r\nfleet is currently 86 percent CNG-fueled and is expected to be 100 percent\r\nCNG-fueled by the time the Project is operational. All of Athens’ transfer trucks are\r\nCNG-fueled. (2020 FEIR 3-1.) The 2020 FEIR explains that no\r\nCNG fueling facilities are proposed at either the MRF/TS facility or the\r\nconvenience store gas station. (Ibid.) Instead, CNG fueling will be available,\r\nas it is currently available, in the vicinity of the Project, to fuel\r\ncommercial haul trucks in the same manner they are fueled today. (2020 FEIR 7-40,\r\n7-41.) Athens currently operates two nearby CNG fueling stations, currently\r\nfuels its CNG fleet at these stations, and will continue to do with or without\r\nimplementation of this Project. (2020\r\nFEIR 3-1.)

\r\n\r\n

\r\n\r\n

The 2020 FEIR explains how CNG\r\nfuel is currently dispensed and will continue to be dispensed, with or without\r\nthe Project, at these, and other, existing locations. (2020 FEIR 3- 1 through\r\n3-4.) CNG trucks typically refuel overnight, while parked, and the Athens fleet\r\nthat will service the Project is currently parked, and will continue to be\r\nparked, offsite at the existing Vincent Truck Yard. (2020 FEIR 7-54.) The 2020\r\nFEIR concludes that this CNG fueling is part of the existing baseline, and will\r\nnot change as a result of the Project. (2020 FEIR 7-51.)

\r\n\r\n

\r\n\r\n

Based on this revised\r\nanalysis, the 2020 FEIR remedies one of the facial inaccuracies in the original\r\nEIR. (See Decision 12-14.) Specifically, the 2020 FEIR now makes clear\r\nthat no CNG fueling would occur on the Project site. This factual statement is supported by\r\nsubstantial evidence. (See e.g. 2020\r\nFEIR 2-8 [site plan] and 3.1.) In opposition, Baldwin Park has not argued\r\notherwise.

\r\n\r\n

\r\n\r\n

Baldwin Park contends that the\r\nProject will generate new truck trips; and that the 2020 FEIR fails to analyze\r\nthe truck fueling impacts of any new or different truck trips. (Oppo. 13-14.) The court rejects these arguments for the\r\nreasons set forth above with respect to GHG emissions.

\r\n\r\n

\r\n\r\n

Baldwin Park contends that the\r\nProject will change fueling traffic patterns because the City of Industry\r\nMRF/TS has fast-fill capabilities, whereas the closer Vincent Truck Yard (“VTY”)\r\nfacility has slow-fill capabilities. \r\n(Oppo. 14, citing 2020 FEIR 3-1-3-5, 7-54-7-55.) Baldwin Park infers that trucks that the 2020\r\nFEIR states will be fueled at VTY might fuel at the City of Industry MRF/TS\r\nlocation because of the fast-fill capabilities. \r\nHowever, Baldwin Park cites no evidence in support. The 2020 FEIR explains that\r\n“Slow-fill is what companies with fleets of vehicles install and utilize at\r\ntheir own truck yards for economic and efficiency reasons since it saves time\r\nand money by eliminating a trip to the fueling station, and the tank is filled\r\n100 percent.” (2020 FEIR 3-4.) The “fast-fill” process takes 10 to 15\r\nminutes, but only fills a tank about 75 percent full. (Id. 3-3.) \r\nThe 2020 FEIR explains that CNG trucks typically refuel overnight, while\r\nparked, and the Athens fleet that will service the Project is currently parked,\r\nand will continue to be parked, offsite at the existing Vincent Truck Yard.\r\n(2020 FEIR 7-54, 7-51.) This analysis in\r\nthe 2020 FEIR is supported by substantial evidence and is reasonable. Baldwin Park’s arguments that the Project\r\nwill change fueling traffic patterns from baseline conditions are based on\r\nspeculation. Furthermore, as discussed,\r\neven if different conclusions were possible from the evidence, that does not\r\nshow a prejudicial abuse of discretion. \r\n(Laurel Heights Improvement Assn. v. Regents of the Univ. of Calif.\r\n(1988) 47 Cal.3d 376, 393.)

\r\n\r\n

\r\n\r\n

The 2020 FEIR complies with\r\nthe writ and remedies the inaccuracy in the original EIR with respect to the\r\nnon-existence of CNG fueling at the Project site. Petitioners do not show a prejudicial abuse\r\nof discretion in the revised analysis of truck fueling operations.

\r\n\r\n

\r\n\r\n

Convenience Store Gas Station

\r\n\r\n

\r\n\r\n

The 2020 FEIR also provides\r\nadditional detail on the convenience store gas station, which will be similar\r\nin size to an average Circle K or AM/PM convenience store that similarly offers\r\ngas pumps to the general public. (2020 FEIR 2-3, 2-7, 3-4.) As depicted in the\r\nsite plan and explained in the text of the 2020 FEIR, the fuel islands proposed\r\nas part of this average-sized convenience store are not sized or designed to\r\nserve the type of commercial haul trucks that will access the MRF/TS. (Ibid.)\r\nNor will it provide any CNG fueling. (Ibid.) The gas station is instead\r\ndesigned, sized, and oriented to serve primarily gasoline-fueled pass-by\r\ntraffic. There is no direct access between the gas station and the MRF/TS for\r\nlarge commercial trucks, only a passenger-sized vehicle entrance between the\r\nconvenience store parking lot and the MRF/TS employee parking lot. (Ibid.)

\r\n\r\n

\r\n\r\n

The Decision questioned\r\nwhether potential safety impacts could be caused by simultaneous use of the\r\nconvenience store gas station by large commercial waste hauling trucks and\r\nsmaller passenger vehicles. (Decision at 13.) The 2020 FEIR addresses this\r\nissue, explaining that “because the collection trucks and transfer trucks will\r\nnot be able to use the convenience store gas station, there will be no conflict\r\nbetween these larger trucks and public use of the convenience store gas station.”\r\n(2020 FEIR 3-7; see also 3-6, 7-58.) These factual statements are supported by\r\nsubstantial evidence. (See Ibid.; see\r\n2020 FEIR 2-8 [site plan].) Baldwin Park has not argued otherwise.

\r\n\r\n

\r\n\r\n

The Decision also questioned\r\nthe original EIR’s assumptions about the amount of diesel fuel pumped at the\r\nconvenience store (0.34 million gallons diesel/year). (Decision 13.) The 2020 FEIR provides substantial evidence\r\nin support of this assumption. (See Mot.\r\n6-7 and 2-020 FEIR 3-4, 3-7, 3-1, 7-9, 7-59, 7-60, 7-61.)

\r\n\r\n

\r\n\r\n

Baldwin Park has not\r\nchallenged this revised analysis in opposition. \r\nThese clarifications comply with the writ and eliminate the conflicting\r\nstatements regarding the public gas station identified as prejudicial by the\r\nDecision.

\r\n\r\n

\r\n\r\n

Conclusion

\r\n\r\n

\r\n\r\n

Irwindale shows compliance with the\r\nwrit in its returns and motions. In\r\nopposition, Baldwin Park has not shown a prejudicial abuse of discretion in the\r\nrevised and recirculated 2020 FEIR on any issue for which the court ordered\r\nfurther CEQA analysis. Waste Management\r\nhas not opposed the motion. Accordingly,\r\nthe motions to discharge the writ are GRANTED. \r\n

\r\n\r\n
\r\n\r\n
\r\n\r\n\r\n\r\n
\r\n\r\n

[1] The\r\ncourt notes that the 2020 FEIR refers to and incorporates the analysis in the\r\n2014 RDEIR. (See 2020 FEIR\r\n6-1-6-15.) The parties have not lodged\r\nthe 2014 RDEIR with the motion or opposition. \r\nBaldwin Park does not assert that the 2020 FEIR misstates the evidence\r\nprovided in the 2014 RDEIR.

\r\n\r\n

\r\n\r\n
\r\n\r\n
"

Case Number: BS163400    Hearing Date: August 20, 2020    Dept: 82

City of Baldwin Park,

v. City of Irwindale, et al., Respondents

Arakelian Enterprises, Inc. dba Athens Services, Real Party in Interest

BS163400 (lead)

[Consolidated with BS171622]

[Related to BS163450 and BS171509]

Judge Mary Strobel

Hearing: August 20, 2020

Petitioner City of Baldwin Park (“Baldwin Park” or “Petitioner”) moves for an award of attorney’s fees pursuant to CCP section 1021.5 against Respondent City of Irwindale (“Irwindale”) and Real Party in Interest Arakelian Enterprises, Inc. dba Athens Services (“Athens”) (collectively “Respondents”) in the total amount of $1,259,496.

Requests for Judicial Notice

Petitioner’s RJN Exhibit K – Granted. (Evid. Code § 452(d).) Respondents’ objection is overruled. The request for dismissal from the PRA litigation is relevant to Petitioner’s contention that Respondents’ litigation tactics drove up the costs of the instant lawsuit challenging the Project’s environmental review and approvals.

Petitioner’s RJN Exhibit Y – Granted. (Evid. Code § 452(d).)

Respondents’ RJN Exhibits 1, 2 – Granted. (Evid. Code § 452(b), § 452(h).) Petitioner’s objection is overruled. Respondents make a sufficient showing that these documents have relevance, as circumstantial evidence, to the question of whether Petitioner had a financial stake in the litigation.

Respondents’ Evidentiary Objections and Motion to Strike Portions of the Declaration of Diane C. De Felice

(1) – (19) Overruled.

Procedural Background

On July 11, 2016, Baldwin Park filed its verified petition for writ of mandate and complaint for declaratory and injunctive relief in BS163400, challenging Irwindale’s June 2016 approval of the DDA and EIR. On November 15, 2017, Baldwin Park filed its verified petition for writ of mandate in BS171622 challenging Irwindale’s October 2017 approval of the land use approvals and EIR Addendum. BS163400 and BS171622 have been consolidated.

On July 8, 2016, in a separate action, Waste Management filed its verified petition for writ of mandate and complaint for injunctive relief in BS163450, challenging Irwindale’s June 2016 actions. On November 15, 2017, Waste Management filed its verified petition for writ of mandate in BS171509 challenging Irwindale’s October 2017 actions. BS163450 and BS171509 have been consolidated.

All four cases have been related.

The court received Baldwin Park’s opening brief, Waste Management’s opening brief, Respondents’ joint opposition, Baldwin Park’s reply, Waste Management’s reply, the joint appendix, and the administrative records.

The court held the first hearing on the merits on July 16, 2019. The court held a second hearing on the merits on August 22, 2019.

On September 5, 2019, the court issued its final statement of decision (hereafter “Decision”). (See De Felice Decl. Exh. L.) The Decision provides a detailed discussion, which is not repeated here, of the Factual and Procedural Background related to the Project, Irwindale’s environmental review and land use approvals, and the court’s analysis of Petitioners’ CEQA and non-CEQA claims.

Baldwin Park submitted a proposed judgment, which Respondents opposed. On October 17, 2019, the court held a hearing on the Proposed Judgment and overruled Respondents’ objections. The Court then entered Judgment in Baldwin Park’s favor, finding: “the EIR’s project description and analysis is inadequate as to truck fueling operations, the EIR does not sufficiently analyze transportation energy impacts, the EIR does not sufficiently analyze the health risks associated with the Project’s emissions of ROG, NOx and ozone, or explain why this analysis would be infeasible, and the EIR does not sufficiently analyze greenhouse gas emissions (‘GHG’) or the effectiveness of AQ-22 in reducing GHG emissions to less than significant….”

On October 21, 2019, the court issued a Peremptory Writ of Mandate, ordering Irwindale to set aside, among other things, the FEIR, the Addendum, the DDA and the Land Use Approvals, and to take all steps necessary to bring the EIR into compliance with CEQA. (See De Felice Decl., ¶ 69, Exh. N, Peremptory Writ of Mandate, pp. 1-2.) Irwindale filed its Returns to the Writ of Mandate in December 2019 and January 2020, confirming that it had vacated the certification of the FEIR and the other Project approvals. (Id. ¶¶ 76-77.)

On January 27, 2020, Baldwin Park filed its motion for attorney’s fees. The court has received Respondents’ opposition and Baldwin Park’s reply.

Analysis

An award of attorney fees is appropriate “to a successful party … in any action which has resulted in the enforcement of an important right affecting the public interest.” (CCP § 1021.5.) The three factors necessary to support an award of attorney fees to a successful party pursuant to section 1021.5 are: “(1) [the] action has resulted in the enforcement of an important right affecting the public interest,’ (2) a significant benefit, whether pecuniary or nonpecuniary has been conferred on the general public or a large class of persons and (3) the necessity and financial burden of private enforcement are such as to make the award appropriate.” (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1214.)

Successful Party

“When it comes to section 1021.5, the successful party is ‘the party to litigation that achieves its objectives.’” (La Mirada Avenue Neighborhood Assn. of Hollywood v. City of Los Angeles (2018) 22 Cal.App.5th 1149, 1157 [plaintiff was the “successful” party where the Court invalidated some, but not all, of the city’s approvals of a project].)

“In assessing whether a party is a successful party, a ‘broad, pragmatic view’ is applied.” (County of Colusa v. California Wildlife Conservation Bd. (2006) 145 Cal.App.4th 637, 649.) Baldwin Park need only “succeed[] on any significant issue in litigation which achieves some of the benefit [it] sought in bringing suit.” (RiverWatch v. County of San Diego Dept. of Environmental Health (2009) 175 Cal.App.4th 768, 783.)

Baldwin Park is the “successful party” in this litigation because it achieved its primary objective — the Judgment overturns the certification of the FEIR, the approval of the DDA, the approval of the Addendum, and the Land Use Approvals. The Judgment also prevents Irwindale from proceeding with the Project until the required CEQA analysis has been completed.

Enforcement of Important Right Affecting the Public Interest

“The first prong of the section 1021.5 test … requires a determination of ‘the ‘strength’ or ‘societal importance’ of the right involved. That right may be constitutional or statutory, but it must be ‘an important right affecting the public interest’—it ‘cannot involve trivial or peripheral public policies.’ Where, as here, the right vindicated is conferred by statute, ‘courts should generally realistically assess the significance of that right in terms of its relationship to the achievement of fundamental legislative goals.’” (Roybal v. Governing Bd. of Salinas City Elementary School Dist. (2008) 159 Cal.App.4th 1143, 1148.)

Courts have recognized that lawsuits enforcing the policies and provisions of CEQA involve important rights affecting the public interest. (See e.g. Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 892-93 [lawsuit forcing county to consider alternative mitigation measures and reanalyze impacts furthered an important public right]; Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 291 [lawsuit compelling city to reconsider flaws in EIR enforced an important public interest].)

This action enforced important environmental and related statutory rights, policies, and legislative goals reflected in CEQA. These rights affect the public interest. Respondents make no argument to the contrary.

Significant Public Benefit Conferred on General Public or a Large Class of Persons

To obtain an award under Code of Civil Procedure section 1021.5, a party must also show that its action conferred a significant public benefit on the general public or on a large class of persons. A significant benefit may be pecuniary or non-pecuniary and need not be concrete to support a fee award. (Braude v. Automobile Club of Southern California (1986) 178 Cal.App.3d 994, 1013.)

“The trial court determines the significance of the benefit, and the group receiving it, ‘from a realistic assessment, in light of all the pertinent circumstances, of the gains which have resulted in a particular case. The courts are not required to narrowly construe the significant benefit factor. ‘The ‘extent of the public benefit need not be great to justify an attorney fee[s] award.’ And fees may not be denied merely because the primary effect of the litigation was to benefit the individual rather than the public.” (Indio Police Command Unit Association v. City of Indio (2014) 230 Cal.App.4th 521, 543.)

Courts have also recognized that CEQA actions “requiring a governmental agency to analyze or reassess environmental impacts associated with a project confer a significant benefit.” (Keep Our Mountains Quiet v. County of Santa Clara (2015) 236 Cal.App.4th 714, 738.) Where plaintiffs successfully overturn certification of an EIR on the grounds that the project’s impacts are inadequately analyzed, a significant impact may be conferred on the general public. (See Center for Biological Diversity, supra, 185 Cal.App.4th at 894-95.)

As discussed in the court’s Decision, the Project is a material recovery facility and transfer station (MRF/TS), and convenience store/fueling station. (AR 3452, 8049.) The Project will operate 24 hours per day, 7 days per week, and is expected to process up to a maximum of 6,000 tons of waste per day (“tpd”). (AR 3454, 3460.) Each day there will be approximately 2,456 truck trips, 345 employee trips, and 751 fueling station trips entering and exiting the site. (AR 3810.)

The Project Site abuts the City of Baldwin Park on its southern border. (AR 3448-50.) The Project Site is approximately 325 feet north of a large residential neighborhood in Baldwin Park, and 480 feet from the Santa Fe Dam bike/pedestrian path. Eight schools are located within 4,500 feet of the Project Site, the closest of which – Margaret Heath Elementary – is within 1,370 feet. (AR 3556, 3717.) The Project Site is located within the South Coast Air Basin (“Basin”). “Basin climate increases the potential to create air pollution problems. Air quality within the Basin generally rates from fair to poor.” (AR 3536.)

In summary, the court found, based on arguments made by Baldwin Park, that “the EIR’s project description and analysis is inadequate as to truck fueling operations, the EIR does not sufficiently analyze transportation energy impacts, the EIR does not sufficiently analyze the health risks associated with the Project’s emissions of ROG, NOx and ozone, or explain why this analysis would be infeasible….” (See Judgment; see also Decision at 11-14, 15-20.)

Baldwin Park’s success conferred a substantial benefit to its residents as well as to the residents of the region served by the Project. As a direct result of the Judgment, Irwindale must generate the missing health risk analysis associated with “the Project’s emissions of ROG, NOx, and ozone” and consider those risks in making its decision on the Project. (De Felice Decl., ¶ 62, Exh. L, Decision at 20.) The court also mandated the correction of faults in the FEIR’s analysis of truck fueling operations and transportation energy impacts — other inherently regional impacts. (Id. at 68, Exh. M, Judgment at 2.) Therefore, by securing Irwindale’s compliance with CEQA, residents of the communities impacted by the Project will benefit from a more in depth CEQA review. (Keep Our Mountains Quiet, supra, 236 Cal.App.4th at 738.)

Respondents’ arguments with respect to the “significant benefit” prong are not persuasive because Respondents misunderstand the benefit at issue. (See Oppo. 10-11.) The Judgment will secure Irwindale’s compliance with CEQA; surrounding communities will benefit from Baldwin Park’s success because Irwindale will be required to fully analyze the environmental impacts of the Project’s truck fueling operations and transportation energy impacts, and the health risks associated with the Project’s emissions of ROG, NOx and ozone. Whether or not the Judgment will result in “fewer miles traveled along the regions’ haul routes” is not determinative. Given the facts outlined above, compliance with CEQA in itself confers a significant benefit on the public and a large class of persons.

Respondents also admit that a CEQA-compliant analysis of truck fueling operations is relevant to the “immediate vicinity of fueling operations.” (Oppo. 10.) As noted above, the Project Site is approximately 325 feet north of a large residential neighborhood in Baldwin Park, and 480 feet from the Santa Fe Dam bike/pedestrian path. Even if the benefit were limited to the “immediate vicinity” of the Project (which it is not), a large class of persons would benefit from the Judgment.

Baldwin Park has shown that its action conferred a significant public benefit on the general public and on a large class of persons.

Necessity and Financial Burden of Private Enforcement

The necessity and financial burden requirement “‘examines two issues: whether private enforcement was necessary and whether the financial burden of private enforcement warrants subsidizing the successful party's attorneys.’” (Lyons v. Chinese Hosp. Ass'n (2006) 136 Cal.App.4th 1331, 1348.) As relevant to a fee request by a public entity, CCP section 1021.5 states: “With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities ….” (emphasis added.)

With respect to financial burden, “[a]n award on the ‘private attorney general’ theory is appropriate when the cost of the claimant’s legal victory transcends his personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff ‘out of proportion to his individual stake in the matter.’” (Woodland Hills Residents’ Ass’n, Inc. (1979) 23 Cal.3d 917, 941.) “An attorney fee award under section 1021.5 is proper unless the [successful litigant’s] reasonably expected financial benefits exceed by a substantial margin the [litigant’s] actual litigation costs.” (Collins v. City of Los Angeles (2012) 205 Cal.App.4th 140, 154.) “The successful litigant's reasonably expected financial benefits are determined by discounting the monetary value of the benefits that the successful litigant reasonably expected at the time the vital litigation decisions were made by the probability of success at that time.” (Id. at 155.)

A litigant’s nonpecuniary interests do not affect its eligibility for section 1021.5 fees. (In re Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1217.) This rule applies to both private and public-entity litigants. (City of Maywood v. Los Angeles Unified School Dist. (2012) 208 Cal.App.4th 362, 435 [“when assessing this factor in the context of a public entity’s legal victory, the trial court may only consider the public entity’s pecuniary interests and the pecuniary interests of its constituents”].).)

“‘[T]he absence of a monetary award, or of precise amounts attached to financial incentives, does not prevent a court from determining whether the plaintiff's financial burden in pursuing the lawsuit is out of proportion to his individual stake in the matter.’ [Citation.] No abuse in awarding fees can be found where the facts show ‘that the plaintiff's ‘future money advantage ... is speculative’ [citation], or that the plaintiff's' ‘pecuniary benefit will be indirect and uncertain.’” (Sweetwater Union High School Dist. v. Julian Union Elementary School Dist. (2019) 36 Cal.App.5th 970, 992; see also Galante Vineyards v. Monterey Peninsula Water Management Dist. (1997) 60 Cal.App.4th 1109, 1128.)

Significantly, “it is the party seeking private attorney general fees who ‘bears the burden of establishing that its litigation costs transcend its personal interest.’” (Norberg v. California Coastal Commission (2013) 221 Cal.App.4th 535, 545-56; see also Luck v. S. Pac. Trans. (1990) 218 Cal.App.3d 1, 30 [same].)

Necessity of Private Enforcement

Here, “private enforcement” was “necessary” because Irwindale failed to ensure compliance with CEQA despite Baldwin Park’s objections. Baldwin Park also notified the Attorney General of its challenges to the Project, but the Attorney General did not intervene in the suit. (July 11, 2016 Notice to Attorney General re CEQA Action Against the City of Irwindale, Et Al. (Case No. BS163400; November 17, 2017 Notice to Attorney General re CEQA Action Against The City of Irwindale, Et Al. (Case No. BS171622).) Respondents make no argument to the contrary.

The Pecuniary Interests of Baldwin Park and its Constituents

Baldwin Park contends that it “did not have a pecuniary interest in this litigation because the remedy it sought was environmental compliance; its stated purpose was to protect public health and safety and avoid further environmental degradation.” (Mot. 10 [emphasis added].) To the extent Baldwin Park equates the remedy it sought with the absence of a pecuniary interest, Baldwin Park makes a false comparison. Baldwin Park could have both sought environmental compliance for non-pecuniary reasons and also had a pecuniary interest in the litigation, either directly or through its constituents (e.g. in preserving property values).

Nonetheless, the court understands Baldwin Park’s argument to be that it had compelling non-pecuniary reasons to litigate this action, which may suggest circumstantially that the necessity for pursuing the lawsuit placed a burden on Baldwin Park “out of proportion” to its financial stake. (See e.g. Heron Bay Homeowners Assn. v. City of San Leandro (2018) 19 Cal.App.5th 376, 393 [affirming fee award, in part, because “the record here contains evidence that Heron Bay HOA and its members were motivated to initiate the CEQA litigation in part by nonpecuniary interests, including concerns about the proposed turbine's potential impact on wildlife, aesthetics, health and noise levels.”].) Here, it may be reasonably inferred from the pleadings and record that Baldwin Park brought this action for non-pecuniary reasons: to obtain compliance with CEQA and, thereby, to protect public health and safety and avoid further environmental degradation of its community. (See e.g. Verified Pet. ¶¶ 1-5; De Felice Decl. ¶¶ 1-2; Carstens Decl. ¶¶ 24-29.)

Respondents contend that Baldwin Park and its residents have a pecuniary interest in “protection of property values.” (Oppo. 12.) In the abstract, Baldwin Park and its constituents have a pecuniary interest in the protection of property values (and any associated property taxes). In theory, a writ compelling further CEQA review of the Project, and thus delaying or even preventing approval and commencement of the Project, could have an impact on property values. However, on this record, any such impact on property values is pure speculation and conjecture. Respondents do not submit or cite any evidence from which the court could quantify such impact, or even determine whether such impact exists or how long it would last. The court notes that the writ does not prevent Irwindale from approving the Project after additional CEQA review.

As discussed below, Baldwin Park submits evidence regarding the substantial financial burden this litigation placed on the city. Because the record provides no basis for the court to conclude that Baldwin Park and its constituents have a quantifiable, non-speculative financial stake, the court concludes that the financial burden was “out of proportion” to any pecuniary interest of Baldwin Park or its constituents, thus making an award of fees appropriate.

Respondents also argue, tersely, that “Baldwin Park has a pecuniary interest in maintaining its favorable monetary relationship with Athens’ direct competitor, Waste Management.” (Oppo. 13; RJN Exh. 1.) Respondents provide no discussion of this franchise agreement and how it purportedly creates a financial stake in this environmental litigation.

Reasonable Amount of Attorney’s Fees

“The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’ [T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.)

Generally, the reasonable hourly rate used for the lodestar calculation is the rate prevailing in the community for similar work. (Center for Biological Diversity v. County of San Bernardino, (2010) 188 Cal.App.4th 603, 616.) In making its calculation, the court may rely on its own knowledge and familiarity with the legal market, as well as the experience, skill, and reputation of the attorney requesting fees, the difficulty or complexity of the litigation to which that skill was applied, and affidavits from other attorneys regarding prevailing fees in the community and rate determinations in other cases. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc., (2016) 6 Cal.App.5th 426, 437.)

“The verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396.) If the motion is supported by evidence, the opposing party must respond with specific evidence showing that the fees are unreasonable. (Premier Med. Mgmt. Sys. v. California Ins. Guarantee Ass’n (2008) 163 Cal.App.4th 550, 560-63.)

The court has discretion to reduce fees that result from inefficient or duplicative use of time. (Horsford, supra at 395.)

Reasonable Hourly Rates

Baldwin Park requests $695/hour for attorney Diane C. De Felice, a shareholder of Brownstein Hyatt Farber Schreck, LLP (“BHFS”) and supervising partner in the firm’s representation of Baldwin Park in this matter. Baldwin Park requests $695/hour for special counsel Diane Matsinger; $425-$450/hour for associates that worked on that case; $225 for a land use planner that assisted in the case; and $225/hour for a paralegal. (See De Felice Decl. ¶¶ 4-6, 8, 79-95, Exh. A, B.) In support of these hourly rates, Baldwin Park relies on the declaration of De Felice; the attached resumes of these attorneys and professionals; and the supporting declaration of attorney Douglas Carstens. (See Id. ¶¶ 79-95, Exh. O-W; Carstens Decl. ¶¶ 3-23.) Based on this evidence about the BHFS’ attorneys’ legal experiences, the supporting Carstens’ declaration, the court’s knowledge and familiarity with the Los Angeles legal market and skill of the attorneys requesting fees, and the difficulty and complexity of this CEQA action, the court concludes that the requested hourly rates are reasonable. Respondents make no argument to the contrary.

Reasonable Number of Hours

Baldwin Park requests $178,877.50 in fees for the administrative phase (January 2015 to June 9, 2016); $691,174.00 in fees for the three year period that began with filing the petition and culminated with briefing the lawsuit (June 10, 2016 to May 21, 2019); and $364,804.50 in fees for the hearing, judgment, and post-judgment phases of the case (May 22, 2019 to December 31, 2019), not including the reply for this fee motion. (See Mot. 12.) In support, Baldwin Park submits a detailed declaration of attorney De Felice and “a chart prepared by BHFS staff at [De Felice’s] direction reflecting all of the time entries contemporaneously recorded by BHFS legal professionals that are claimed in this Motion.” The chart includes redactions for applicable privileges. (De Felice Decl. ¶ 93, Exh. 5; see generally Id. ¶¶ 1-78 [summarizing work]; Id. ¶¶ 79-95 [summarizing staffing of the case by BHFS].)

Partial Success

“While a court has discretion to reduce fees in a CEQA case based on degree of success …, it is, of course, not required to do so.” (Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 897.) “Although a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the ... court did not adopt each contention raised ... , a reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole....” (Save Our Uniquely Rural Community Environment v. County of San Bernardino (2015) 235 Cal.App.4th 1179, 1185.)

Courts recognize that “a plaintiff might join in one action ‘distinctly different claims for relief that are based on different facts and legal theories….’ Work on an unsuccessful and unrelated claim generally will not be compensable, as it ‘cannot be deemed to have been ‘expended in pursuit of the ultimate result achieved.’” (Environmental Protection Information Center v. Dept. of Forestry & Fire Protection (2010) 190 Cal.App.4th 217, 238.) “There is no certain method for determining when claims are related or unrelated, but Hensley ‘instructs the court to inquire whether the ‘different claims for relief ... are based on different facts and legal theories.’ [Citation.] If so, they qualify as unrelated claims. Conversely, related claims ‘will involve a common core of facts or will be based on related legal theories.’ [Citation.]’” (Id. at 239.)

In its original petition filed in July 2016, Baldwin Park alleged that the EIR for the Project failed to adequately analyze and mitigate impacts relating to aesthetics, air quality, greenhouse gases, odor, health, biological resources, cultural resources, environmental justice, geology and soils, hazards and hazardous materials, land use and planning, noise, public services and utilities, traffic generation and circulation, water quality, hydrology, growth inducing impacts, and cumulative impacts in violation of CEQA. (2016 Pet. ¶¶ 70-89.) The 2016 Petition also alleged, inter alia, that Irwindale illegally segmented Project approvals, failed to provide a legally adequate project description, failed to analyze a reasonable range of alternatives, failed to respond to comments on the EIR, failed to adopt adequate CEQA Findings of Fact and a Statement of Overriding Considerations, and improperly deferred impact analysis, development of mitigation measures, and development of appropriate thresholds. (2016 Pet. ¶ 68, ¶¶ 88-105.) The 2016 Petition also alleged several non-CEQA claims, such as violations of the planning and zoning law. (2016 Pet. ¶¶ 107-134.)

In November 2017, Baldwin Park filed a second petition (“2017 Petition”), alleging additional new and distinct CEQA violations and violations of state planning and zoning laws. (See Pet. filed 11/15/17 in BS171622.) This second petition arose primarily from Irwindale’s approval of changes to the Project through its adoption of an Addendum to the FEIR.

In its opening brief, Baldwin Park did not pursue all of the legal issues raised in its petitions. In its opening brief, Baldwin Park argued that Irwindale violated CEQA in the way in which it described and analyzed the Project’s building square footage, parking spaces, truck fueling operations, operational capacity, transportation energy, health risks, odor impacts, noise impacts, noise mitigation measures, odor mitigation measures, and its decision to reject a reduced tonnage project alternative. Further, the opening brief argued that Irwindale failed to adequately disclose and analyze site plan revisions, failed to identify the proper environmental baseline, and that substantial evidence did not support Irwindale’s decision to prepare an Addendum. Baldwin Park also argued that Irwindale violated Irwindale’s General Plan and Zoning Code. (See Opening Brief filed 2/13/19.)

Baldwin Park did not prevail on many of the issues raised in its petition and writ briefs. In summary, Baldwin Park prevailed on the following three issues: “[1] the EIR’s project description and analysis is inadequate as to truck fueling operations, [2] the EIR does not sufficiently analyze transportation energy impacts, [3] the EIR does not sufficiently analyze the health risks associated with the Project’s emissions of ROG, NOx and ozone, or explain why this analysis would be infeasible.” (See Judgment at 54.)[1]

In its motion, Baldwin Park argues that “[a]ll of the claims asserted in the petitions pertained to Irwindale’s approval of the Project and each of the petitions seek the same relief based upon their various claims — the rescission of the Project’s approvals.” (Mot. 14.) Baldwin Park acknowledges that a fee award may distinguish between successful and unsuccessful claims, and that courts award fees for unsuccessful claims where the moving party shows that the claims “involve a common core of facts or [are] based on related legal theories.” (Mot. 14.) However, in its moving brief and reply, Baldwin Park does not sufficiently develop an argument, with any detailed discussion of the facts and legal theories at issue, that its successful and unsuccessful claims “involve a common core of facts or [are] based on related legal theories.” (See Mot. 14-15; see also Id. 2-6 and Reply 10-11.)

It is not enough for Baldwin Park to assert that all issues related to CEQA compliance. Baldwin Park asserts that “each claim was based on a common core of facts—Respondents’ approval of the Project.” (Reply 10.) The court finds this terse analysis unpersuasive. Taken to its logical conclusion, all unsuccessful claims related to approval of the Project would be compensable. No analysis of the “common core of facts” or legal theories would be relevant. Case law is to the contrary. Baldwin Park argued the EIR was inadequate under CEQA based on varied discrete legal and factual bases. Baldwin Park’s failure to provide detailed discussion on the alleged “common core of facts” supports a reduction in fees for unsuccessful claims.

Baldwin Park’s reliance on RiverWatch v. County of San Diego (2009) 175 Cal.App.4th 768, 783 is misplaced as applied here. (See Reply 10.) The Court of Appeal did not hold that a trial court lacks discretion to reduce fees for unsuccessful claims for which the moving party does not show a sufficient connection, such as related facts or legal theories, to the successful claims.

Based on the court’s knowledge of the case and familiarity with Baldwin Park’s writ briefs, the court finds, for the reasons stated below, that Baldwin Park’s requested fees should be reduced for its partial success.

Baldwin Park made various, fact-specific arguments about the adequacy of the Project description in the EIR. (See Decision at 7-15.) Baldwin Park only prevailed on its arguments concerning the description of truck fueling operations. Some time was reasonably incurred on all these claims in briefing the legal standard that applies to a court’s review of the adequacy of a project description in an EIR. (See Decision 7-8; see Opening Writ Brief 12-13.) That time is compensable. However, with respect to the factual arguments made based on the EIR and record, the court does not find a common core of facts between the adequacy of the description of trucking operations (on which Baldwin Park prevailed), and of building square footage, the number of parking spaces, and operational capacity (on which it did not). Accordingly, some reduction in fees is justified for Baldwin Park’s lack of success on those unrelated factual claims.

Similarly, Baldwin Park only partially prevailed on its arguments about the EIR identification and analysis of energy, health, odor, and noise impacts. (Decision 15-23; see Opening Writ Brief 15-21.) Some time was reasonably incurred on these claims in briefing the legal standard that applies to all of these claims. That time is compensable in full. The court also considers that the applicable legal standards and discussion of case law for energy and health impacts were important to the court’s analysis and justified substantial (and compensable) attorney work. (See Decision 15-20.) However, with respect to the detailed factual arguments made based on the EIR and record, the court does not find a common core of facts between the adequacy of the analysis of energy and health impacts (on which Baldwin Park prevailed), compared to odor and noise impacts (on which Baldwin Park did not prevail). Accordingly, some reduction in fees is justified for Baldwin Park’s lack of success on those unrelated factual claims.

Baldwin Park did not prevail on the remainder of its claims, including, but not limited to, its arguments about deferral of mitigation, Irwindale’s decision to reject a reduced tonnage alternative, Irwindale’s decision to prepare an Addendum, and Irwindale’s approval of a General Plan Amendment. (See Decision 24-54; see Opening Writ Brief 21-27.) These unsuccessful claims comprised a meaningful part of Baldwin Park’s writ briefs. The court does not find, and Baldwin Park does not show, a common core of facts or legal theories between these unsuccessful claims and the successful claims. Accordingly, a meaningful reduction in fees is justified for Baldwin Park’s lack of success on these unrelated factual and legal claims.

However, the court considers in its reduction of fees below that Baldwin Park’s writ briefing was thorough and helpful to the court on issues that were common to all claims, including its discussion of the Project and administrative proceedings, the record generally, and the standard of review. (See e.g. Opening Writ Brief 8-12; see Reply generally.) The court also considers time BHFS attorneys spent reviewing the 60,000-page record; organizing and editing the writ brief to comply with the 20-page limit; reviewing Respondents’ opposition and responding to common arguments made therein; and preparing for the writ hearings. (See De Felice Decl. ¶¶ 49-62.)

For the three phases of the litigation identified by Baldwin Park, the court further analyzes below the amounts the requested fees should be reduced based on Baldwin Park’s partial success.

Administrative Proceedings: January 2015 to June 9, 2016

Attorney fees incurred in an administrative proceeding are compensable under section 1021.5 if the administrative proceeding is “useful and necessary to the public interest litigation.” (Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1461; Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312, 1317-20.)

Baldwin Park retained BHFS in January 2015 to ensure it exhausted all of its administrative remedies and was prepared to litigate this matter, in the event Irwindale failed to rectify the deficiencies identified by Baldwin Park. Diane De Felice, the supervising partner on this matter, with the assistance of one senior associate, one junior associate and one land use planner, became familiar with the RDEIR and the FEIR and the issues presented therein. (De Felice Decl., ¶¶ 12-16, 81.) BHFS prepared two extensive written comments letters with respect to the FEIR and RDEIR detailing alleged errors in Irwindale’s proposed course of action with respect to the Project, and presented those comments at Irwindale’s public hearing on the Project. (Ibid.) In total, for the two comment letters and associated research and review of the FEIR/RDEIR, Baldwin Park was billed for 323.9 hours of time in the administrative phase of this matter, of which 143 hours (about 44%) were incurred by supervising partner De Felice. (Id. at ¶ 8, Exh. B.) Baldwin Park requests a total of $178,877.50 for the time billed in the administrative proceedings.

Baldwin Park may recover fees reasonably incurred to exhaust administrative remedies for this writ action. “[T]he exhaustion of administrative remedies is a prerequisite to a lawsuit challenging a CEQA determination…. Thus the administrative proceedings here qualify under Best as ‘useful and necessary to the public interest litigation.’ [Citation.] In fact, there can be no public interest litigation without first filing an administrative proceeding.” (Edna Valley Watch, supra at 1318-19.)

Respondents contend that the 323.9 hours claimed by Baldwin Park is excessive for two comment letters. Respondents contend, citing cases, that “[t]he standard for determining whether a petitioner adequately exhausted its administrative remedies is a lenient one,” and “Petitioners adequately preserve claims with comments far less detailed than those submitted by Baldwin Park.” (Oppo. 16; see e.g. Citizens Assn. for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 163 [“less specificity is required to preserve an issue for appeal in an administrative proceeding than in a judicial proceeding.”]) That Baldwin Park may have been able to exhaust administrative remedies with less detailed comment letters is a relevant, but not dispositive, factor in assessing the reasonableness of the hours incurred.

Respondents contend that many of the administrative phase billing entries are not related to the submission of written or oral comments, and that some entries are heavily redacted. Respondents contend that Baldwin Park reasonably incurred no more than 40 hours of attorney work in the “administrative phrase.” (Oppo. 17.) The amount of fees requested for the administrative proceedings must be reasonable. The court has discretion to reduce fees that result from inefficient or duplicative use of time. (Horsford, supra at 395.) As summarized above, the court also “has discretion to reduce fees in a CEQA case based on degree of success.” (Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, 897; see also Hogar Dulce Hogar v. Community Development Com. of City of Escondido (2007) 157 Cal.App.4th 1358, 1370-71 [“ when a successful litigant seeks to recover pre-complaint litigation expenses, the litigant will, as a practical matter, bear a heavier burden of demonstrating how that activity contributed to the success of the litigation.”].)

Based on the court’s review, it appears all of the “administrative phase” entries from January 2015 to June 9, 2016 relate in some fashion to the preparation of the comment letters or related tasks, such as reviewing the FEIR and RDEIR or correspondence between counsel. (See De Felice Decl. Exh. X.) On the whole, considering that the billing entries are supplemented and explained by the De Felice declaration, the redactions do not materially detract from Respondents’ and the court’s ability to review the billing entries and the reasonableness of the fees requested.

Although Respondents do not justify their proposed reduction to 40 hours of work, the court finds the 323.9 hours requested by Baldwin Park to be substantially in excess of the reasonable amount for two comment letters and related work in the CEQA administrative proceedings. Baldwin Park did not prevail in this writ action on numerous issues raised in the comment letters and does not show that the time spent on those issues were “useful and necessary” to their success in this litigation. Based on the court’s knowledge of the case and the issues on which Baldwin Park prevailed, and the court’s review of the comment letters and billing entries, the court finds that Baldwin Park reasonably incurred $50,000 in the administrative proceedings.

Pre-Trial Litigation and Briefing: June 10, 2016 to May 21, 2019

Baldwin Park requests $691,174.00 in fees for the three-year period that began with filing the petition and culminated with briefing the lawsuit (June 10, 2016 to May 21, 2019). This amount includes time spent filing the petitions, submitting written comments on the Addendum and the Land Use Approvals (which are actually administrative tasks), preparing the Administrative Record, responding to Athens’ PRA requests, and briefing the case, among other things. (Mot. 12, fn. 6; see De Felice Decl. ¶¶ 8, 19-78.) BHFS attorneys and staff spent 1,181.5 hours on these tasks, including 568.9 hours for supervising partner De Felice; 124.3 hours for special counsel Matsinger; 221.2 hours for associate Christopher Guillen; and 166 hours for associate Elisabeth Esposito. (De Felice Decl. Exh. B.)

Respondents contend that “[a]ll fees associated with non-primary legal professionals should be eliminated,” specifically $28,275 billed by land use planner Alicia Harrison, paralegal Polly Chesson, and attorneys Kari Vozenilek and Kimberly Leefatt. (Oppo. 18.) Respondents do not cite any specific legal tasks performed by these persons that Respondents believe were unreasonably incurred. Rather, Respondents make a general argument about how BHFS staffed the case. Given the large size of the administrative record and complexity of issues on which Baldwin Park prevailed, the court cannot say that BHFS unreasonably used the services of a land use planner, a paralegal, or multiple associate attorneys in this second phase of the litigation, which include the writ briefing.

Respondents point out that Baldwin Park includes at least $33,130 for administrative-level tasks in this second phase, apparently because additional administrative proceedings occurred related to the Addendum after Petitioner filed the first petition in July 2016. (Oppo. 18-19; see Mot. 12, fn. 6.) The same “useful and necessary” standard, discussed above, applies to these fees incurred in the administrative proceedings. Baldwin Park provides some general discussion of these administrative tasks in its briefs and the De Felice declaration. (See Mot. 12-14, fn. 6 and De Felice Decl. ¶¶ 8, 19-78.) However, Baldwin Park does not develop an argument about how all of these fees were useful, necessary, or even connected to the CEQA claims on which it prevailed. It appears that much of these fees were not useful or necessary to the claims on which Baldwin Park prevailed. Baldwin Park does not show to the contrary with discussion of its successful claims and the administrative tasks at issue. (See e.g. Reply 10:4-12.) The court substantially reduces these fees because most were not useful, necessary, or sufficiently connected to the writ claims on which Baldwin Park prevailed.

Respondents contend that “Baldwin Park includes at least $2,340 of its fee award for fees associated with the PRA litigation, which was wholly separate from this case, was not consolidated with this case, and was not related to this case.” (Oppo. 19.) In response, Baldwin Park contends that these fees are compensable in the CEQA action because “the PRA litigation was inextricably related to this litigation as it involved requests to obtain information pertaining to Baldwin Park’s attorneys’ fees in this case. (Children’s Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App.4th 740, 775-81.)” (Reply 10, fn. 8.) Baldwin Park does not show that the PRA litigation or associated legal work were sufficiently connected to the CEQA claims on which it prevailed or to its success generally to justify a fee award in an unrelated CEQA action. (See De Felice Decl. ¶¶ 38-46, Exh. E-K; see Mot. 4-5.) The court does not award Baldwin Park any fees for the PRA litigation.

Both sides assert that the other caused delay in the litigation. (See Mot. 4-5; Oppo. 9.) The court has considered these arguments and does not find that they justify a reduction in fees.

Respondents contend that Baldwin Park’s fees should be discounted 80% to account for unsuccessful claims. Respondents contend that “an entry-by-entry reduction of billing hours to remove time spent on the unsuccessful claims is not possible here” given redactions and “vague billing entries,” but that a 80% reduction is appropriate because Baldwin Park prevailed on less than 20% of its claims. (Oppo. 19.) For the reasons discussed at length above, the court agrees with Respondents that a substantial reduction is necessary to account for Baldwin Park’s partial success and because numerous, unsuccessful claims lack a sufficient “common core of facts” and/or legal theories to the successful claims. The court disagrees, however, that the billing entries, as supplemented by the De Felice declaration, are too vague to support some analysis of the amount of reduction. Furthermore, the court may determine the appropriate amount of reduction by reference to the writ briefs, the Decision, the De Felice declaration, and other supporting evidence. The court disagrees with the proposed reduction by 80%, which would not adequately compensate Baldwin Park for fees reasonably incurred for its successful claims.

The court concludes that a substantial reduction in fees is appropriate for this second phase (June 10, 2016 to May 21, 2019) because it includes administrative and PRA tasks unrelated to Baldwin Park’s success in this CEQA action, and because it includes BHFS’s work in briefing numerous, unsuccessful CEQA and non-CEQA claims. Based on the court’s knowledge of the case and the issues on which Baldwin Park prevailed, and the court’s review of the pleadings, writ briefs, billing entries, De Felice declaration, and other evidence in the record, the court finds that Baldwin Park reasonably incurred $250,000 in this second phase (June 10, 2016 to May 21, 2019).[2]

Writ Trial, Judgment, and Post-Judgment: May 22, 2019 to Present

This final phase of the litigation included time preparing for the writ hearings; appearing and arguing at the writ hearings; preparing a proposed judgment and responding to Respondents’ objections; appearing at a hearing on the objections; conferring with opposing counsel on cost issues; and researching and preparing the motion for fees and reply. (See De Felice Decl. ¶¶ 54-78; Suppl. De Felice Decl. ¶¶ 1-9.) BHFS attorneys spent 490.9 hours on writ hearing, judgment, and post-judgment matters from May 22, 2019 to December 31, 2019, including 237.3 hours for De Felice and Matsinger (48%). BHFS attorneys spent 208.6 hours on the fee motion and reply. Baldwin Park requests $279,043.50 in fees for the writ hearing, judgment, and post-judgment tasks, and $110,401 in fees for the fee motion and reply. (Suppl. De Felice Decl. ¶ 8.)

In opposition, Respondents do not discuss any specific billing entries for this third phase of the litigation that they believe show an unreasonable use of time.

Respondents argue generally that the fees should be reduced for unsuccessful claims. (See Oppo. 19-20.) The preparation of the judgment and post-judgment matters relate exclusively to successful claims. However, a meaningful reduction is appropriate for the writ trials and preparation therefor given that BHFS attorneys spent substantial time on its unrelated, unsuccessful claims.

Respondents contend that Baldwin Park forfeited its request for time spent on the reply brief for this motion. (Oppo. 20-21.) The court disagrees. Given that such time had not yet been incurred, it was reasonable for Baldwin Park to submit reply evidence with respect to time spent after the motion was filed.

However, from the billing entries and De Felice declarations, the court finds some inefficient and duplicative use of time in this third phase, including with respect to the fee motion and reply. The court has discretion to reduce fees that result from inefficient or duplicative use of time. (Horsford, supra at 395.)

Based on the court’s knowledge of the case and the issues on which Baldwin Park prevailed, and the court’s review of the pleadings, writ briefs, billing entries, De Felice declaration, and other evidence in the record, the court finds that Baldwin Park reasonably incurred $200,000 in this third phase (May 22, 2019 to Present.)

Conclusion

The motion is GRANTED IN PART in the reduced amount of $500,000.


[1] This court also determined that two greenhouse gas claims raised by Waste Management had merit. (Judg. at 54.) However, Baldwin Park did not brief those claims and only incorporated Waste Management’s arguments by reference.

[2] To a lesser degree, the court has also considered the substantial percentage (58%) of hours that are attributed to supervising partner De Felice and special counsel Matsinger at $695/hour for this second phase. Although De Felice’s and Matsinger’s work was important to the case and success, the court finds this use of the highest-billing attorneys to be somewhat high for the second phase, which involved much of the legal briefing, considering that four associates were also assigned to the case and billed at rates of $425-$450/hour.

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