The environmental impact report for a proposed Highway 50 interchange that would serve an El Dorado County Indian casino has been invalidated by the Third District Court of Appeal. The decision could have impacts beyond El Dorado County because the Third District rejected Caltrans’ usual method of determining air quality impacts.
In the EIR, Caltrans had concluded that the interchange and hotel-casino project would not have a significant impact on air quality because emissions were in conformity with the regional “mobile source emissions budget.” Essentially, Caltrans decided that the project would not have a cumulative impact on air quality.
However, the court said that Caltrans should have disclosed the amount of reactive organic gases (ROG) and nitrogen oxide (NOx), which are precursors to ozone, that would result from the project itself.
“[T]he specific traffic-based ROG and NOx emissions of the interchange/hotel-casino are known (or have been estimated) but are never disclosed,” Justice Rodney Davis wrote for the unanimous three-judge panel. “[W]e have no idea (1) what the interchange/hotel-casino’s specific traffic-based ROG and NOx emission (or estimates) are; (2) what their specific contributions to the emissions budgets are; and (3) whether these emissions and contributions are significant (one example of this may be how these emissions and contributions compare to a range of samples from other transportation projects in the region that make up the transportation conformity analysis). This is no small moment, given the enormous size and scope of the interchange/hotel-casino project.”
Caltrans officials declined to comment on the ruling, but in court filings, Caltrans essentially argued that it does not have technology to provide the area-specific analysis the court wants. The decision appears to be forcing a change in how any entity that deals with capacity-increasing transportation projects studies air quality impacts.
Michael Zischke, an attorney who represented Caltrans in the case, called the air quality ruling “significant” but declined to go into detail pending final disposition of the case. Although the Third District in December rejected requests from all parties for a rehearing, it appeared a request for state Supreme Court review was likely to be filed — and the case might be important enough for the high court to accept.
“The court departed from the norm and did not defer to Caltrans’ determination that the air quality analysis was adequate,” Zischke said.
The Third District’s decision is only one of the latest events in a long-running fight that El Dorado County and a number of residents have waged against the Shingle Springs Band of Miwok Indians. Since the 1990s, the tribe has sought to build a casino on its 160-acre rancheria in a low-density residential area approximately nine miles west of Placerville. Access to the rancheria, however, is very limited, so the Shingle Springs Band has pressed for a new Highway 50 freeway interchange to serve the site. Eventually, the tribe and its financial backer, Lakes Entertainment of Minnesota, offered to pay for the $40 million interchange.
The tribe and Lakes Entertainment propose a 240,000-square-foot casino with multiple restaurants, a five-story, 250-room hotel, and a 3,000-space parking garage. The resort would employ as many as 1,900 people and generate approximately 10,000 car trips per day. The National Indian Gaming Commission and the Bureau of Indian Affairs prepared an environmental assessment (EA) for the project but not a more detailed environmental impact statement (the federal equivalent of an EIR) because the agencies determined the project, with mitigations, would not have a significant impact. The county contested the adequacy of the EA in federal court but lost a January 2005 ruling. That case is now at the Ninth U.S. Circuit Court of Appeals.
Caltrans, meanwhile, received the task of preparing an EIR for the interchange project. The study was complicated by the fact that the interchange and casino were really one project, yet the federal agencies with jurisdiction over the casino had already approved the environmental analysis for the hotel, casino and parking garage. Eventually, Caltrans approved the interchange based on a combined EIR/EA that incorporated the federal study. This time, the county and two neighborhood groups sued in state court, arguing that the EIR was deficient in many ways.
Sacramento County Superior Court Judge Lloyd Connolly upheld the EIR in all respects — except for its handling of air quality impacts. Connolly ruled that Caltrans must measure the project’s ozone impacts based on state standards, not based on more lenient federal standards.
Everyone appealed. The Third District approached the air quality issue differently but reached the same result that Connolly did: Caltrans’ study was inadequate. What’s more, the Third District ruled that Caltrans’ EIR should have analyzed a smaller casino as a project alternative — a contention raised by the neighborhood groups.
In studying air quality impacts, Caltrans relied solely on a regional transportation conformity determination. Under the federal Clean Air Act, transportation projects in “nonattainment regions” such as Sacramento must conform to a mobile source emissions budget established in a regional plan for meeting federal air quality standards. Caltrans concluded that the interchange/hotel-casino project would not have a significant impact on air quality because the project’s operation would fall within the mobile source emissions budget.
The Third District ruled that Caltrans’ exclusive reliance on conformity with the collective emissions budget was improper.
“The regional conformity approach does not tell us what the interchange/hotel-casino project is specifically contributing in terms of ROG and NOx transportation emissions. The ‘forecasts of regional mobile source emission levels’ in this regional conformity approach comprise the ROG and NOx emissions for all existing and planned transportation projects, including the interchange/hotel-casino project, in the Sacramento nonattainment-ozone region,” Justice Davis wrote. “[T]he EIR in effect used only a cumulative air quality analysis to evaluate project-specific impacts.”
As for evaluating project alternatives, the court agreed with neighborhood groups that Caltrans should have considered a smaller hotel and casino. Caltrans rejected such an alternative because the state agency has no jurisdiction over the tribe or its activities on the rancheria.
“Caltrans,” the court ruled, “cannot rely solely on this legal blanket to insulate itself from considering the alternative of a smaller hotel and casino. … In short, alternatives may not be rejected for consideration merely because they are beyond an agency’s authority.”
Stephan Volker, the neighborhood groups’ attorney, said Caltrans should have considered a smaller casino that generated less traffic. Caltrans does have authority over highway design and congestion, he noted.
“Caltrans clearly had the ability to approve a smaller interchange project or could have rejected the project all together,” Volker said.
Zischke, Caltrans’ attorney, disputed Volker’s contention and the court’s ruling. “Caltrans doesn’t have authority to order a smaller casino. Caltrans has authority over an interchange,” Zischke said.
While pleased with the Third District’s decision regarding alternatives, Volker said the court made a “fundamental error” in permitting Caltrans to rely on the federal EA for examination of off-site impacts of the proposed casino. The “cumulative impacts of the casino outside the rancheria’s boundaries” should have been studied in the EIR, he argued, adding that he hoped the state Supreme Court would consider the question.
The Case:
County of El Dorado v. Department of Transportation, Nos. C046372 and 048141, 05 C.D.O.S. 9666, 2005 DJDAR 13190. Filed November 8, 2005. Modified December 6, 2005 at 2005 DJDAR 14015.
The Lawyers:
For El Dorado County: Edward Knapp, county counsel’s office, (530) 621-5770.
For Caltrans: Michael Zischke, Morrison & Foerster, (415) 268-7000.
For Shingle Springs Band of Miwok Indians: Nicholas Yost, Sonnenschein, Nath & Rosenthal, (415) 882-5000.
For Voices for Rural Living: Stephan Volker, (510) 496-0600.
