An environmental impact report for a proposed Oakland International Airport expansion has been found flawed on numerous grounds by the First District Court of Appeal. The court held that the Port of Oakland, which operates the airport, relied on outdated air pollution information, did not support its decision not to study health risks related to that air pollution, and failed to analyze adequately nighttime noise impacts. In an unpublished portion of the opinion, the court held that the Port improperly delayed crafting a plan to mitigate harm to the western burrowing owl. The unanimous three-judge panel also rebuked Solano County Superior Court Judge William Jensen for continuing to issue rulings in the case after appeals had been filed, saying that the rulings greatly lengthened the time needed to resolve the case. In December 1997, the Board of Port Commissioners approved the Airport Development Plan (ADP) and an EIR. The ADP outlined plans to consolidate and reconfigure two existing passenger terminals, add 12 gates, widen and reconfigure access roads, build a 6,000-space parking garage and expand cargo facilities. The expansion was intended to accommodate a near doubling of flights between 1994 and 2010. Soon after the Port's decision, the cities of Alameda and San Leandro and two citizens groups sued over the adequacy of the EIR. In February 1999, Judge Jensen found that the EIR's discussion of alternatives was lacking, and that a new analysis of cumulative impacts was needed. The environmental groups, Alameda and the Port all appealed the ruling. The First Appellate District, Division Two, found even more flaws in the EIR. The published portion of the court's opinion dealt at length with air pollution and noise. The EIR concluded that emission of toxic air contaminants (which the court called TACs) would increase, and that the contaminants may cause cancer and other health effects. But the EIR said the environmental effects could not be known because no standardized protocol for determining risks existed. However, the court found that the Port improperly relied on a 1991 technical guide from the California Air Resources Board (CARB) and ignored an updated, 1994 technical document from CARB despite CARB's insistence that the latter report provided "the most accurate characterization of jet exhaust available." The court held that this omission "is such as to prevent a decisionmaker and the public from gaining a true understanding of one of the most important environmental consequences of increasing the number of flights." The court went on to reject the EIR's conclusion that the health effects of air contaminants were unknowable. The court noted that after the Port published the draft EIR, airport opponents had provided the Port with input from government and private experts and even hired a consultant to prepare a sample health risk assessment. Yet the final EIR contained "virtually no reference" to this material. "Voluminous documentary evidence was submitted to the Port supporting the assertion that an approved and standardized protocol did exist which would enable the Port to conduct a health risk assessment," Justice Ignazio Ruvolo wrote for the court. Citing Public Resources Code § 21080.3, subd. (a), Ruvolo continued, "The Port has not cited us to any reasonably conscientious effort it took either to collect additional data or to make further inquiries of environmental or regulatory agencies having expertise in the matter. These failures flaunt the requirement that the lead agency consult ‘with all responsible agencies and with any other public agency which has jurisdiction by law over natural resources affected by the project.'" Ruvolo went on, "The fact that a single methodology does not currently exist that would provide the Port with a precise, or ‘universally accepted,' quantification of the human health risk from TAC exposure does not excuse the preparation of any health risk assessment — it requires the Port to do the necessary work to educate itself about the different methodologies that are available." The court also rejected the Port's contention that it could call air pollution a significant impact and simply adopt an overriding consideration. "This approach," Ruvolo wrote, "has the process exactly backward and allows the lead agency to travel the legally impermissible easy road to CEQA compliance." The court was equally dissatisfied with the EIR's treatment of noise. The EIR concluded that — even though there would be an increase in nighttime flights under the expansion plan — noise levels would actually decrease because federal law required air carriers to convert to quieter jet engines by 2000. For its study, the Port adopted a fixed standard of 65 decibels CNEL, which is essentially an average of 65 decibels over a 24-hour period. This noise level is often considered compatible with residential living. However, the plaintiffs raised many questions about the noise impacts occurring within the 65-decibel threshold of acceptability. During EIR adoption, many citizens had complained that the EIR did not address increased nighttime flights and suggested that the decibel increases should be considered significant even though they still fell within the 65-decibel threshold. Acoustical engineers urged the Port to study single-event noise levels from the passing of an airplane over homes. In court, airport opponents said the Port's reliance solely on the CNEL standard did not provide a true picture of noise impacts. The court agreed, holding that CEQA Guidelines urge a lead agency to adopt site-sensitive thresholds of significance for noise. Thus, the Port should not have relied on an ironclad standard of 65 decibels CNEL. "[T]he Port concedes that implementation of the ADP will increase the existing noise levels for quiet East Bay neighborhoods. Despite this acknowledgement, the EIR contained no quantitative discussion of ambient noise levels in any nearby community," Ruvolo wrote. He continued: "[I]mplementation of the ADP could increase a community's nighttime noise level to 64.9 CNEL, and under the sole criterion of the CNEL metric, this increase would not create a significant impact for purposes of CEQA. This conclusion is derived without any meaningful analysis of existing ambient noise levels, the number of additional nighttime flights that will occur under the ADP, the frequency of those flights, to what degree single overflights will increase noise levels over and above the existing ambient noise level at a given location, and the community reaction to aircraft noise, including sleep disturbance. … CEQA requires that the Port and the inquiring public obtain the technical information needed to assess whether the ADP will merely inconvenience the Airport's nearby residents or damn them to a somnambulate-like existence." In the unpublished part of the decision, the court held that the EIR's discussion of aircraft safety and growth inducements was adequate. But the court ruled that the Port improperly postponed a plan to protect the western burrowing owl. The court also found that Judge Jensen should not have discharged a writ of mandate after his original ruling, which he did when the Port adopted a supplemental EIR. Finally, the court remanded the issues of attorneys' fees, suggesting that airport opponents were due hundreds of thousands of dollars. The Cases: Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissioners, City of San Leandro v. Board of Port Commissioners, City of Alameda v. Board of Port Commissioners, Nos. A086708, A087959, A089660, 01 C.D.O.S. 7700, 2001 DJDAR, 9453. Filed August 30, 2001. The Lawyers: For airport opponents: John Shordike, (510) 841-5056. For the Port: Stephen Kostka, McCutchen, Doyle, Brown & Enersen, (925) 937-8000.