Client Alert- New CEQA Court Decision

In its decision published March 30, 2023, the First District Court of Appeal affirmed the trial court’s ruling in East Oakland Stadium Alliance v. City of Oakland, et al. (2023WL2706692) in litigation challenging the Environmental Impact Report (“EIR”) for a proposed large mixed use development that includes a new Oakland A’s baseball stadium. The project is to be constructed on a 50-acre site known as Howard Terminal, located within the Port of Oakland.  The Howard Terminal site is bordered by railroad tracks serving passenger and freight traffic that runs down the middle of a major arterial street.   This railroad right-of-way is owned and operated by the Union Pacific Rail Road (“UPRR”).  

A primary challenge to the EIR was that the mitigation measures to address pedestrian safety related to the railroad tracks were infeasible and ineffective. Specifically, petitioners challenged a mitigation measure that required the installation of fencing on both sides of the track for the length of the project site’s frontage, so as to prevent pedestrians from crossing the tracks between intersections. This mitigation measure included as a feature the construction of a multi-use path within a three block stretch of the fence.  This path would be located within UPRR’s railroad right-of -way.  During the public comment period on the Draft EIR, the UPRR stated it would not allow the multi-use path within its right-of-way.  As such, petitioners argued that because the UPRR would not permit the multi-use path, the entirety of the mitigation measure was “infeasible” as defined by Public Resources Code Section 21061.1, as it was not capable of being accomplished in a successful manner.   The Court disagreed, stating that even if the multi-use path is infeasible, the feature that actually mitigates impacts is the fence.  The Court noted that there was no evidence in the record that UPRR could prevent the installation of the fence or that the multi-use path was required to make the fence effective as a mitigation measure.  Accordingly, the Court determined this mitigation measure was feasible and potentially effective even if the multi-use path was never constructed. 

The case also includes a useful summary of the rules related to the exhaustion of issues during the project’s administrative approval process and relating to the level of specificity required for performance standards included in mitigation measures.  

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