Pfeiffer v. City of Sunnyvale City Council (Cal. Ct. App. 6th Dist filed Oct. 28, 2011) (cert. for publ. Nov. 22, 2011) No. H036310 available at CourtWebsite
In a case that carves away exceptions to the baseline selection holdings of Sunnyvale West Neighborhood Ass’n v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 (“Sunnyvale West”), Pfeiffer v. City of Sunnyvale City Council provides important guidance and discretion to agencies for selecting baselines to analyze project impacts.
This case involved the expansion of a medical facility and the creation of a waste management and parking facility on various single-family residential lots. Neighborhood opponents sued, alleging -- among other arguments -- that the traffic analysis used an illegal “hypothetical” baseline rather than assessing impacts based on existing conditions.
Rejecting this argument, the court noted that CEQA does not require baselines only use currently existing conditions and that “predicted conditions may serve as an adequate baseline where environmental conditions vary.” The EIR’s traffic analysis outlined the following four traffic scenarios:
1. Existing conditions based on 2007 traffic counts.
2. Background conditions based on existing conditions multiplied by a growth factor based on the city’s travel demand forecasting model, plus traffic from “approved but not constructed developments in the area.”
3. Project conditions based on background conditions, plus anticipated traffic from the project (i.e., the net increase of 71,700 sf of medical office space).
4. Cumulative conditions based on existing conditions multiplied by a growth factor based on a comparison of the traffic projections for the General Plan, as well as cumulative scenarios from the city’s forecasting model and the Moffet Park Specific Plan.
The court noted that, based on the “existing conditions and the predictions for traffic conditions generated by factors other than the [project], including already-approved developments” (i.e., predicted background conditions), the EIR concluded that the project would not result in significant near-term traffic impacts. The court endorsed the use of multiple baselines -- stating that the EIR’s “traffic baselines . . . were not limited to projected traffic condition[s] in the year 2020, but also included existing conditions and the traffic growth anticipated from approved but not yet constructed developments.” The court also noted that the EIR included charts comparing the traffic data from each scenario that allowed foreseeable impacts to be understood and weighed. Finding no evidence that the analyses were inadequate, the court rejected the petitioners’ claim that the baseline selection was incorrect.
The case’s holdings are notably different from, but consistent with, Madera Oversight Coalition v. County of Madera (Sept. 13, 2011) 199 Cal. App. 4th 48, in which an EIR’s baseline selection was found inadequate for a mixed-use development project. There, the EIR only labeled one of its three traffic scenarios as a “baseline” related to predicted year 2025 conditions. However, the court could not determine if existing conditions were also used as a baseline because, although three traffic scenarios were provided (existing 2007, predicted 2025 without the project, and predicted 2025 with the project), there was no explicit statement or analysis showing that existing conditions were used as a baseline. The Madera case was similar to Sunnyvale West, which similarly only used “projected traffic conditions in the year 2020” as a baseline and did not consider traffic impacts on the existing environment.
This new Sunnyvale case is especially important, because it shows that these cases can be distinguished, and that predicted conditions, if used properly, can serve as a baseline.
Disposing of the other arguments, the court also found no merit in challenges to the EIR’s general plan consistency discussion or traffic and construction noise impacts analyses. The court stated that the EIR was adequate and its responses to comments related to general plan conformity contained an appropriate level of detail and demonstrated a good faith analysis. The court made similar "baseline" conclusions related to traffic noise, finding the EIR properly concluded that noise increases attributable to the project would not be significant. Finally, the court concluded that the EIR presented sufficient information regarding construction noise and feasible mitigation that the foreseeable impacts of pursuing the project could be understood and weighed.
Sunday, November 27, 2011
Thursday, July 7, 2011
Document Dump Deemed Failure to “Exhaust”; Greenhouse Gases Considered Not “New Information” Requiring EIR; and Water Supply Assessment Held Timely
Citizens for Responsible Equitable Environmental Development v. City of San Diego (Cal. Ct. App. 4th Dist, Div. 1, May 19, 2011) (Published June 10, 2011) No. D057524 (196 Cal. App. 4th 515) available at CourtWebsite
This case has three very interesting parts to it: 1) the procedural exhaustion requirement related to the abusive CEQA litigation tactic of dumping a bunch of documents on the agency at the last-minute; 2) the ability to rely on older EIRs regarding greenhouse gas impacts for preparing an addendum rather than a supplemental or subsequent EIR; and 3) the timing for preparing a water supply assessment (“WSA”).
In the case, the city of San Diego certified an EIR in 1994 for a specific plan. For one of the final condominium projects in the plan area, the city prepared a WSA and an addendum to the EIR. Opponents (“CREED”) submitted two cursory comment letters objecting to the development, claiming that the WSA was not subjected to public review and the project would emit greenhouse gases. They also submitted a DVD containing over 4,000 pages of documents with no table of contents or any information regarding how the documents pertained to the project.
Exhaustion. The basic premise of the “exhaustion doctrine” is that a plaintiff must “exhaust” his or her administrative remedies by first raising arguments to the agency during its consideration of the project. This gives the agency the opportunity to correct the issue before there is a need to seek review by a court of law. To “exhaust administrative remedies, the objections ‘must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.’” Here, however, the court found that the document dump implemented by CREED of thousands of pages of various materials at the last minute failed to satisfy the exhaustion requirement because it failed to “fairly present information” to the city.
GHGs. The court found that a supplemental or subsequent EIR was not required because there was not new information presented about greenhouse gases. The court found “information on the effect of greenhouse gas emissions on climate was known long before the city approved the 1994 EIR” and the effect of greenhouse gas emissions on climate could have been raised in 1994 when the City considered the FEIR.” This holding bears interest because even considering the 2009 addendum, the court held that the plaintiffs should have raised their GHG claims in 1994. Some critics argue that studying impacts from emissions was not common until the California Global Warming Solutions Act of 2006 was passed. However, this case potentially shields similar projects from judicial review that involve local agencies relying on environmental documents that were certified as far back as 1994.
WSA. The court held that the timing requirements of Water Code section 10910(g) for a public water system to submit a WSA to a city or county do not apply when the water supplier and the lead agency are the same. Further, the WSA did not need to be approved before the CEQA documents could rely on it.
This case has three very interesting parts to it: 1) the procedural exhaustion requirement related to the abusive CEQA litigation tactic of dumping a bunch of documents on the agency at the last-minute; 2) the ability to rely on older EIRs regarding greenhouse gas impacts for preparing an addendum rather than a supplemental or subsequent EIR; and 3) the timing for preparing a water supply assessment (“WSA”).
In the case, the city of San Diego certified an EIR in 1994 for a specific plan. For one of the final condominium projects in the plan area, the city prepared a WSA and an addendum to the EIR. Opponents (“CREED”) submitted two cursory comment letters objecting to the development, claiming that the WSA was not subjected to public review and the project would emit greenhouse gases. They also submitted a DVD containing over 4,000 pages of documents with no table of contents or any information regarding how the documents pertained to the project.
Exhaustion. The basic premise of the “exhaustion doctrine” is that a plaintiff must “exhaust” his or her administrative remedies by first raising arguments to the agency during its consideration of the project. This gives the agency the opportunity to correct the issue before there is a need to seek review by a court of law. To “exhaust administrative remedies, the objections ‘must be sufficiently specific so that the agency has the opportunity to evaluate and respond to them.’” Here, however, the court found that the document dump implemented by CREED of thousands of pages of various materials at the last minute failed to satisfy the exhaustion requirement because it failed to “fairly present information” to the city.
GHGs. The court found that a supplemental or subsequent EIR was not required because there was not new information presented about greenhouse gases. The court found “information on the effect of greenhouse gas emissions on climate was known long before the city approved the 1994 EIR” and the effect of greenhouse gas emissions on climate could have been raised in 1994 when the City considered the FEIR.” This holding bears interest because even considering the 2009 addendum, the court held that the plaintiffs should have raised their GHG claims in 1994. Some critics argue that studying impacts from emissions was not common until the California Global Warming Solutions Act of 2006 was passed. However, this case potentially shields similar projects from judicial review that involve local agencies relying on environmental documents that were certified as far back as 1994.
WSA. The court held that the timing requirements of Water Code section 10910(g) for a public water system to submit a WSA to a city or county do not apply when the water supplier and the lead agency are the same. Further, the WSA did not need to be approved before the CEQA documents could rely on it.
Wednesday, June 22, 2011
Seismic Regulatory Compliance and Standard Engineering Practices Considered Adequate for Mitigating Seismic Impacts
Oakland Heritage Alliance v. City of Oakland (Cal. Ct. App. 1st Dist, Div. 4, May 10, 2011) No. A126558 available at CourtWebsite
In a decision impacting reliance on regulatory schemes for reducing environmental impacts under CEQA, a court of appeal recently held that a development project did not impermissibly defer mitigation by relying on seismic building standards to protect human health and safety and that the EIR’s analyses and mitigation were supported by substantial evidence.
In the case, an alliance of citizens challenged a development project's EIR, contending it inadequately evaluated the seismic risks for the project. On each issue presented, the court sided with the city. First, the court held the revised EIR utilized proper significance criteria and adequately evaluated seismic damage to structures by requiring site-specific geotechnical evaluations and structural design requirements, while reducing seismic risks through appropriate engineering methods.
The court also found substantial evidence supporting the city’s finding that seismic impacts were mitigated to less than significant levels because the project would be required to comply with various state and local requirements designed to protect against seismic hazards, including the Seismic Hazard Mapping Act, CGS Special Publication 117, the Building Code, and local development ordinances. Although the EIR noted that a site-specific evaluation would be needed before final design to adjust the appropriate remedial measures, the court held the EIR’s geotechnical investigation adequately accounted for on-site conditions and measures that could reduce impacts. The court also found the EIR's mitigation measures contained standard and proven approaches accepted within the geotechnical engineering community that would reduce the seismic impacts to a less than significant level.
Lastly, the court held the city did not impermissibly defer mitigation of seismic impacts. The EIR discussed a range of mitigation measures, including geotechnical requirements in site-specific investigations for plans submitted to obtain construction permits. The court held it was reasonable to expect the performance criteria imposed in the plans by ordinance, code, and standards would be followed. The EIR essentially proposed compliance with a regulatory scheme designed to ensure seismic safety, and that seismic impacts would be mitigated through engineering methods known to be feasible and effective.
In a decision impacting reliance on regulatory schemes for reducing environmental impacts under CEQA, a court of appeal recently held that a development project did not impermissibly defer mitigation by relying on seismic building standards to protect human health and safety and that the EIR’s analyses and mitigation were supported by substantial evidence.
In the case, an alliance of citizens challenged a development project's EIR, contending it inadequately evaluated the seismic risks for the project. On each issue presented, the court sided with the city. First, the court held the revised EIR utilized proper significance criteria and adequately evaluated seismic damage to structures by requiring site-specific geotechnical evaluations and structural design requirements, while reducing seismic risks through appropriate engineering methods.
The court also found substantial evidence supporting the city’s finding that seismic impacts were mitigated to less than significant levels because the project would be required to comply with various state and local requirements designed to protect against seismic hazards, including the Seismic Hazard Mapping Act, CGS Special Publication 117, the Building Code, and local development ordinances. Although the EIR noted that a site-specific evaluation would be needed before final design to adjust the appropriate remedial measures, the court held the EIR’s geotechnical investigation adequately accounted for on-site conditions and measures that could reduce impacts. The court also found the EIR's mitigation measures contained standard and proven approaches accepted within the geotechnical engineering community that would reduce the seismic impacts to a less than significant level.
Lastly, the court held the city did not impermissibly defer mitigation of seismic impacts. The EIR discussed a range of mitigation measures, including geotechnical requirements in site-specific investigations for plans submitted to obtain construction permits. The court held it was reasonable to expect the performance criteria imposed in the plans by ordinance, code, and standards would be followed. The EIR essentially proposed compliance with a regulatory scheme designed to ensure seismic safety, and that seismic impacts would be mitigated through engineering methods known to be feasible and effective.
Tuesday, June 21, 2011
Agreement to Negotiate in Good Faith Deemed Not A Project Under CEQA
Cedar Fair, L.P. v. City of Santa Clara (Apr. 6, 2011) 194 Cal. App. 4th 1150 available at CourtWebsite
A Court of Appeal held that the City of Santa Clara’s approval of a “term sheet,” which amounted to nothing more than an agreement to negotiate in good faith, did not constitute a project under CEQA, because it did not create a commitment to a project so as to effectively preclude alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project. Therefore, an EIR was not required prior to approving the term sheet.
In the case, Cedar Fair owned and operated an amusement park in the City of Santa Clara. Part of a property that Cedar Fair used for parking and events was a subject of a “term sheet,” which set forth basic terms for a stadium that would be the home to the NFL’s San Francisco 49ers. The 49ers proposed to locate the stadium on a 17-acre parcel that was alleged to be subject to a long-term lease between the City’s Redevelopment Agency and Cedar Fair.
Cedar Fair challenged the term sheet’s approval alleging that the City had failed to prepare an EIR related to the term sheet's approval pursuant to CEQA. The court determined that the stadium term sheet, however, did not constitute a project or a project approval because the term sheet was not binding. It was merely intended to provide a general framework for subsequent negotiation of a definitive agreement. Additionally, it contained a clause that expressly stated the Stadium could not proceed without negotiation and delivery of “mutually acceptable agreements based upon information from the CEQA environmental review process and on other public review and hearing processes and subject to all applicable governmental approvals” Based on this, the lack of any binding effect of the term sheet, and the precedent established in Save Tara v. City of West Hollywood (2008) 45 Cal. 4th 116, the court concluded that preparation of an EIR was not required.
A Court of Appeal held that the City of Santa Clara’s approval of a “term sheet,” which amounted to nothing more than an agreement to negotiate in good faith, did not constitute a project under CEQA, because it did not create a commitment to a project so as to effectively preclude alternatives or mitigation measures that CEQA would otherwise require to be considered, including the alternative of not going forward with the project. Therefore, an EIR was not required prior to approving the term sheet.
In the case, Cedar Fair owned and operated an amusement park in the City of Santa Clara. Part of a property that Cedar Fair used for parking and events was a subject of a “term sheet,” which set forth basic terms for a stadium that would be the home to the NFL’s San Francisco 49ers. The 49ers proposed to locate the stadium on a 17-acre parcel that was alleged to be subject to a long-term lease between the City’s Redevelopment Agency and Cedar Fair.
Cedar Fair challenged the term sheet’s approval alleging that the City had failed to prepare an EIR related to the term sheet's approval pursuant to CEQA. The court determined that the stadium term sheet, however, did not constitute a project or a project approval because the term sheet was not binding. It was merely intended to provide a general framework for subsequent negotiation of a definitive agreement. Additionally, it contained a clause that expressly stated the Stadium could not proceed without negotiation and delivery of “mutually acceptable agreements based upon information from the CEQA environmental review process and on other public review and hearing processes and subject to all applicable governmental approvals” Based on this, the lack of any binding effect of the term sheet, and the precedent established in Save Tara v. City of West Hollywood (2008) 45 Cal. 4th 116, the court concluded that preparation of an EIR was not required.
Friday, April 8, 2011
Malibu's Legacy Park EIR Upheld – Challenges re Water Impacts Found Moot, Time-Barred, and Non-Existent
Santa Monica Baykeeper v. City of Malibu (Ct. App. 2d Dist, Div. 4 April 5, 2011) No. B222776 , available at CourtWebsite
In this case, plaintiff Santa Monica Baykeeper challenged the City of Malibu’s EIR and approval of a project for Legacy Park -- a 15-acre park next to the mouth of Malibu Creek at the Pacific Ocean. An adjacent project -- the Malibu Lumbar Yard -- was approved in 2007, which included irrigation for the park from the lumber yard's treated wastewater effluent ten months of the year, while dispersing water into the Malibu Creek watershed the remainder of the year. Santa Monica Baykeeper challenged the Legacy Park EIR, arguing that it failed to adequately analyze construction impacts on water quality, the impact of using treated effluent from the Malibu Lumber Yard on the project site, and the cumulative groundwater impacts of the project’s effluent use.
First, the court held that the construction impacts argument was moot -- the project was already completed by the time of appeal, so no further construction impacts could occur. Second, regarding irrigation with treated effluent from Malibu Lumber Yard, the court held that the EIR adequately addressed wastewater use, and the creation of the wastewater dispersal field had already been subjected to prior environmental review that was never challenged -- thus arguments related to the use of wastewater on the park were time-barred. Lastly, the court found substantial evidence supporting the city’s conclusion that the Legacy Park project reduces rather than creates groundwater impacts, and therefore the project would not have a cumulative groundwater impact. Therefore, the court upheld the city’s EIR and approval of the project.
In this case, plaintiff Santa Monica Baykeeper challenged the City of Malibu’s EIR and approval of a project for Legacy Park -- a 15-acre park next to the mouth of Malibu Creek at the Pacific Ocean. An adjacent project -- the Malibu Lumbar Yard -- was approved in 2007, which included irrigation for the park from the lumber yard's treated wastewater effluent ten months of the year, while dispersing water into the Malibu Creek watershed the remainder of the year. Santa Monica Baykeeper challenged the Legacy Park EIR, arguing that it failed to adequately analyze construction impacts on water quality, the impact of using treated effluent from the Malibu Lumber Yard on the project site, and the cumulative groundwater impacts of the project’s effluent use.
First, the court held that the construction impacts argument was moot -- the project was already completed by the time of appeal, so no further construction impacts could occur. Second, regarding irrigation with treated effluent from Malibu Lumber Yard, the court held that the EIR adequately addressed wastewater use, and the creation of the wastewater dispersal field had already been subjected to prior environmental review that was never challenged -- thus arguments related to the use of wastewater on the park were time-barred. Lastly, the court found substantial evidence supporting the city’s conclusion that the Legacy Park project reduces rather than creates groundwater impacts, and therefore the project would not have a cumulative groundwater impact. Therefore, the court upheld the city’s EIR and approval of the project.
Tuesday, April 5, 2011
In-Fill Categorical Exemption Upheld Despite Challenge Against Density Bonus Approval
Wollmer v. City of Berkeley (Ct. App. 1st App. Dist., Div. 4, filed Mar. 11, 2011; cert. for publ. Mar. 30, 2011) No. A128121, available at CourtWebsite
A court recently certified a decision that held that the City of Berkeley properly applied a categorical exemption under CEQA during its approval of an in-fill project. This case highlights some interesting intricacies regarding the use of categorical exemptions.
In the case, a developer submitted an application for a mixed-use affordable housing project. The city determined the project was exempt from CEQA pursuant to a categorical exemption for in-fill developments (CEQA Guidelines § 15332) and approved a conditional use permit. The developer then requested -- and obtained -- a CUP modification to either proceed with the original affordable housing project or an affordable senior housing project -- which the city also found was exempt as an in-fill project. A plaintiff sued the city, arguing that by approving a density bonus for the project, the city could not have found that the project was consistent with the city’s general plan and zoning code -- a prerequisite for using the in-fill exemption. However, the court held that the city had to grant the density bonus, because the Density Bonus Law required granting it when the developer made its proper application under the city's zoning code. The city also waived certain building requirements pursuant to the Density Bonus Law; however, the court found this did not render the proposed project inconsistent with the general plan or zoning code.
The plaintiff also argued that the location of the project and the traffic studies prepared were “unusual circumstances” that should have made the categorical exemption not apply under CEQA Guidelines section 15300.2. But, the court held these were merely lay opinions, and that contrary substantial evidence had not been shown that could invalidate the city’s determination. Also, the court found that the developer’s dedication of land for a left turn lane was merely a component of the project -- not a mitigation measure -- and thus the City did not impermissibly "mitigate" the project into a categorical exemption. The court concluded that the exemption was properly applied.
A court recently certified a decision that held that the City of Berkeley properly applied a categorical exemption under CEQA during its approval of an in-fill project. This case highlights some interesting intricacies regarding the use of categorical exemptions.
In the case, a developer submitted an application for a mixed-use affordable housing project. The city determined the project was exempt from CEQA pursuant to a categorical exemption for in-fill developments (CEQA Guidelines § 15332) and approved a conditional use permit. The developer then requested -- and obtained -- a CUP modification to either proceed with the original affordable housing project or an affordable senior housing project -- which the city also found was exempt as an in-fill project. A plaintiff sued the city, arguing that by approving a density bonus for the project, the city could not have found that the project was consistent with the city’s general plan and zoning code -- a prerequisite for using the in-fill exemption. However, the court held that the city had to grant the density bonus, because the Density Bonus Law required granting it when the developer made its proper application under the city's zoning code. The city also waived certain building requirements pursuant to the Density Bonus Law; however, the court found this did not render the proposed project inconsistent with the general plan or zoning code.
The plaintiff also argued that the location of the project and the traffic studies prepared were “unusual circumstances” that should have made the categorical exemption not apply under CEQA Guidelines section 15300.2. But, the court held these were merely lay opinions, and that contrary substantial evidence had not been shown that could invalidate the city’s determination. Also, the court found that the developer’s dedication of land for a left turn lane was merely a component of the project -- not a mitigation measure -- and thus the City did not impermissibly "mitigate" the project into a categorical exemption. The court concluded that the exemption was properly applied.
Tuesday, March 29, 2011
Climate Action Plans As CEQA Mitigation – Attorney General Comments
Press Release available at AG’sWebsite
Attorney General’s Comment Letter available at AG’sWebsite(pdf)
On March 17, 2011, Attorney General Kamala Harris issued comments that climate action plans could be appropriate mitigation for a project’s greenhouse gas emission impacts under CEQA -- provided that sufficient details and measures are included. The comments were provided in a letter from the AG’s office regarding Los Angeles County’s Santa Clarita Valley Area Plan’s EIR, which also interestingly shows that Harris’s office is likely to continue its predecessor’s practice of commenting on climate change impacts during the CEQA process.
The letter noted that to be adequate under CEQA, the mitigation must contain binding emission reduction targets and other performance criteria. These comments follow on the heels of last year’s CEQA Guideline greenhouse gas amendments -- which provide criteria and encouragement for developing climate action plans -- and the recent development of GHG thresholds by regional air quality management districts. As future climate action plans are developed, courts will likely additionally refine the requirements of such plans.
Attorney General’s Comment Letter available at AG’sWebsite(pdf)
On March 17, 2011, Attorney General Kamala Harris issued comments that climate action plans could be appropriate mitigation for a project’s greenhouse gas emission impacts under CEQA -- provided that sufficient details and measures are included. The comments were provided in a letter from the AG’s office regarding Los Angeles County’s Santa Clarita Valley Area Plan’s EIR, which also interestingly shows that Harris’s office is likely to continue its predecessor’s practice of commenting on climate change impacts during the CEQA process.
The letter noted that to be adequate under CEQA, the mitigation must contain binding emission reduction targets and other performance criteria. These comments follow on the heels of last year’s CEQA Guideline greenhouse gas amendments -- which provide criteria and encouragement for developing climate action plans -- and the recent development of GHG thresholds by regional air quality management districts. As future climate action plans are developed, courts will likely additionally refine the requirements of such plans.
Complete and Adequate EIR Needed for Certification
Landvalue 77, LLC v. Board of Trustees of the California State University (filed Feb. 23, 2011; cert. for publ. Mar. 16, 2011) No. F058451, available at CourtWebsite
A recent Court of Appeals decision highlights the potentially harsh consequences of producing an incomplete EIR. In the case, an EIR for a mixed-use development project had not adequately analyzed potential impacts related to air quality, traffic and parking, and water supply. To remedy this error, the court required the approving agency to decertify the entire EIR and withdraw its approval of the project.
The court held that CEQA provides for EIR certification when the EIR is complete, and that partial certification is not compatible with this concept because an EIR is either complete or it is not. Thus, even though an EIR may only be inadequate in some areas of its analysis, courts must set aside the entirety of the EIR certification and project approval. Although some prior court decisions have not required entire decertification of partially inadequate EIRs, this decision highlights the possibility that agency review of the full EIR and approval may be required by a court – even where only portions of the EIR are found inadequate.
A recent Court of Appeals decision highlights the potentially harsh consequences of producing an incomplete EIR. In the case, an EIR for a mixed-use development project had not adequately analyzed potential impacts related to air quality, traffic and parking, and water supply. To remedy this error, the court required the approving agency to decertify the entire EIR and withdraw its approval of the project.
The court held that CEQA provides for EIR certification when the EIR is complete, and that partial certification is not compatible with this concept because an EIR is either complete or it is not. Thus, even though an EIR may only be inadequate in some areas of its analysis, courts must set aside the entirety of the EIR certification and project approval. Although some prior court decisions have not required entire decertification of partially inadequate EIRs, this decision highlights the possibility that agency review of the full EIR and approval may be required by a court – even where only portions of the EIR are found inadequate.
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