Second EIR for Landfill Satisfies Appeals Court
The Fourth District Court of Appeal has overturned a trial judge's ruling that environmental review of the proposed Eagle Mountain landfill in Riverside County was inadequate. The additional review was conducted under a court order that found fault with the previous environmental work on the project.
The Eagle Mountain project would convert a former Kaiser Steel iron-ore mine into a landfill of 2,200 acres with the capacity of accepting up to 20,000 tons of waste per day for more than a century. However, it would be located within 1.5 miles of Joshua Tree National Park — a fact that has galvanized project opponents, including the National Parks and Conservation Association.
The current case emerged from challenges to a new environmental impact report prepared by Riverside County in response to a previous court challenge on the project. The National Parks and Conservation Association and landfill opponents sued the county. In 1994, San Diego Superior Court Judge Judith McConnell, who handles many challenges under the California Environmental Quality Act from surrounding counties, ordered a new environmental impact report.
Among other things, she said, the EIR should have spent more time describing the cumulative impact of the project and wrongly dismissed a possible hydroelectric project associated with the landfill as remote and speculative. She also ruled that the evidence was insufficient to support the EIR's conclusions regarding the desert tortoise habitat and the proximity to Joshua Tree National Park. Proponents appealed McConnell's ruling, but the Fourth District upheld her decision in 1996. (National Parks & Conservation Assn. v. County of Riverside, 42 Cal.App.4th 1505 (1996); CP&DR Legal Digest, April 1996.)
Between 1994 and 1997, the county re-examined many environmental issues and eventually produced an entirely new EIR. The Board of Supervisors then issued a decision that the project, as mitigated, would have only one significant impact — an adverse impact on the "wilderness experience" — and issued a statement of overriding considerations in approving the project.
However, opponents challenged the adequacy of the new EIR and eventually won another favorable ruling from Judge McConnell. This time, McConnell ruled that the county had not complied with her earlier order to adequately examine the impact on both the wilderness experience and the desert tortoise population at the park.
On appeal, the county and the project proponents, Kaiser Steel Resource and Mine Reclamation Corp., argued that substantial evidence supports the county's decision to approve the project. The Fourth District, Division One, agreed with the county and overturned Judge McConnell's ruling.
One of the complicating factors in the EIR was the fact that the 1994 California Desert Protection Act upgraded Joshua Tree from a National Monument to a National Park. Interpretation of this change had a major impact on both Judge McConnell and the appellate court, especially with regard to the "wilderness experience" portion of the environmental analysis.
For example, the appellate court noted that when the Desert Protection Act was passed, Senator Dianne Feinstein, D-California, the legislation's main sponsor, wrote a letter to Interior Secretary Bruce Babbitt stating that she never intended this action to dictate the creation of a private "buffer zone" around the park. It was in this context that the appellate court examined the wilderness experience analysis.
This issue came into play in the appellate court's discussion of the noise analysis. According to the county, the project's opponents were demanding, in effect, a "zero impact" standard inside the park for noise and other impacts. In the absence of National Park or federal noise standards that could be applied, the EIR used the county's residential noise standards, which sets 65 decibels as the level of significance. "There is no authority to create a private de facto buffer zone around the Park for the purposes of land use," the court wrote. "Absent more closely applicable standards, it appears that the county had a substantial basis for accepting the EIR's use of county residential noise standards for assessing noise impacts. There is no requirement that all noise from the project be mitigated to a level of inaudibility, particularly as to nonwilderness parklands."
Similarly, on the issue of the wilderness experience to park visitors, the court disagreed with Judge McConnell and found the EIR's discussion adequate. Noting that it is difficult to measure these impacts well, the court said: "The EIR acknowledges the potential subjective impacts of the project, even though it does not go much farther in defining them; however, its analysis goes the extra mile in examining every possible sensory impact on a Park visitor."
Regarding the impact on the desert tortoise, the court took Judge McConnell to task. She found a lack of substantial evidence to prove that the impact on the tortoise — an endangered species — had been mitigated to a level of insignificance, and in particular questioned why the county did not require the project to fence the 52-mile railroad line through the project. According to the appellate court, the U.S. Fish & Wildlife Service examined this option and determined more study was needed. "On balance," the court said, "it appears that the trial court effectively substituted its judgment on the fencing issue for those of the expert agencies and biologists in the field. It had no adequate basis for doing so."
The court also rejected Judge McConnell's judgment that landfills are not permitted in the tortoise areas under the federal Desert Tortoise Recovery Plan.
National Parks and Conservation Association v. County of Riverside, No. D031056, 1999 Daily Journal D.A.R. 4309, 99 C.D.O.S. 3395 (issued May 7, 1999).
For National Parks and Conservation Association and other plaintiffs: Floy E. Andrews, Gibson, Dunn & Crutcher, (213) 229-7206.
For Riverside County and other defendants: Michael H. Fish, Nugent & Newnham, (619) 236-1323.