A planning change to reconfigure San Jose Airport for more corporate jet traffic does not need full environmental review under a state appellate case newly ordered published.

The planning document challenged by Citizens Against Airport Pollution (CAAP) was approved by the City Council in 2010 as the eighth addendum to the EIR for San Jose's Airport Master Plan. It responded to projections for slower growth in the airport's cargo and passenger capacity than previously expected, and changed the planned use of a 44-acre area from air cargo facilities to general aviation "in order to accommodate the forecast that large corporate jets will comprise the majority of general aviation". Further, it called for modifying two taxiways to better accept corporate jets. City staff argued there would be no new significant environmental impacts beyond those addressed in previous planning rounds.

CAAP claimed the modified plan needed assessment in a supplemental or subsequent EIR because it called for construction work affecting "noise, air pollution and... burrowing owl habitat". The group additionally argued new rules on greenhouse gases (GHG) and climate change assessments had not been properly applied.

In a three-judge opinion authored by Justice Patricia Bamattre-Manoukain, the Sixth District Court of Appeal upheld the trial court's findings and its rejection of the environmental challenge.

The trial court had found air and noise impacts from the most recent iteration of the plan were no worse than envisioned in previously approved versions and, in the appellate court's paraphrase, "the effects of greenhouse gases do not constitute new information that could not have been known at the time the 1997 [Final] EIR was certified as complete." It had found effects on the owl habitat from the proposed work on the taxiways (again in paraphrase) "could be mitigated, and therefore the severity of the previously identified impact on the burrowing owls would not be increased."

The court declined to rule on the city's claim that CAAP had failed to exhaust its administrative remedies, where CAAP claimed the addendum process was not sufficiently formal to offer remedies to exhaust. The process amounted to meetings hosted by the city, followed by a notice of determination, while CAAP had responded with letters making "general comments" only.

On the noise standard issue, the court followed Santa Teresa Citizen Action Group v. City of San Jose, 114 Cal. App. 4th 689 (2003) and Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, 196 Cal. App. 4th 515, 532 (2011) for the rule that an EIR must be conducted initially if there is substantial evidence for significant environmental impact -- but after environmental review has been conducted, "the statutory presumption flips in favor of the developer against further review." At that point, said the court, the question becomes whether the record contains substantial evidence for a finding that the proposed changes are *not* substantial enough to require a supplemental EIR. Thence the court found substantial evidence for the eighth addendum's conclusion that the new changes would not result in substantial noise impacts.

CAAP argued for a fresh assessment of GHG emissions based on new legal requirements added in that area since the 1997 EIR and 2003 Supplemental EIR. The appellate court saw no need, noting that awareness and regulation of the GHG problem dated back to the 1970s.

The court dealt with other air quality matters briefly, noting a finding that daily aircraft operations were actually projected to decrease from 2010 to 2027.

The parties agreed on one definite impact: the new plan would cause the loss of four acres of burrowing owl habitat. But again flipping the presumption, the court found substantial evidence that the changed construction plans, as mitigated under an existing plan, would not make enough difference to call for a supplemental EIR.

The city's 1997 "Burrowing Owl Management Plan" called for designating four substitute acres as "owl management area," moving previously created artificial owl burrows away from the taxiway work, and using one-way doors to keep owls from becoming trapped in their burrows by construction.

CAAP argued, however, that even more detailed owl habitat mitigation plans had been found inadequate in San Joaquin Raptor Rescue Center v. County of Merced, 149 Cal. App. 4th 645 (2007). The court said that case "did not involve review of an EIR addendum and is otherwise distinguishable."

The airport case is CAAP v. City of San Jose, available at http://www.courts.ca.gov/opinions/documents/H038781.PDF

The decision was first made public June 6, then ordered published July 2. The publication order cited requests from the real estate law offices of Remy, Moose, Manley, LLP and Nossaman Guthner Knox, and from the Silicon Valley Leadership Group.