3. Use of CNEL Methodology as Sole Indicator of Significant Effects from
Noise
On appeal, petitioners revive the claim made below that the EIR’s exclusive reliance on the cumulative CNEL metric does not provide a true or complete picture of the noise environment resulting from the increase in nighttime flights that would result if the ADP were adopted. At the outset, it is important to clarify petitioners’ position in this appeal. The Port characterizes petitioners’ position as advocating that “the EIR should have based its noise significance criteria, and therefore its noise analysis, on individual noise events rather than on the cumulative noise measure provided by CNEL.” Petitioner CLASS explains its position: “[T]he flaw in the EIR’s noise analysis is its failure to provide, in addition to the CNEL analysis, the most fundamental information about the project’s noise impacts, specifically the number of additional nighttime flights that will occur under the ADP, the frequency of those flights, and their effect on sleep. In view of the huge increase in nighttime cargo flights that will occur under the ADP, an analysis of the project’s impact on sleep is critical to enable nearby residents to understand how the ADP will affect their lives.” (Italics added.)
Petitioners’ argument derives substantial support from the case of Davison v. Department of Defense (S.D. Ohio 1982) 560 F.Supp. 1019, a case which parallels this one in numerous respects. In Davison, the plaintiffs challenged the sufficiency of an EIS prepared in connection with the addition of civilian air cargo operations at Rickenbacker Air National Guard Base. The “greatest single environmental impact” occasioned by the proposed nighttime air cargo flights was on the sleep of the people who lived near the airfield. (Id. at p. 1033.) Like the EIR here, the EIS prepared for the project set 65 Day-Night Average Sound Level (DNL) [FN 20] as the threshold for significant noise exposure and identified which houses would be significantly affected. The court held that DNL, even when coupled with a time-above analysis, did not adequately inform the public about how an increase in nighttime flights would affect sleep in a nearby residential area. The court concluded that while the nighttime “penalty” in cumulative noise calculations gave some indication of the increase in nighttime flights, “the great magnitude of this difference should have been made plain in the EIS.” (Id. at p. 1036.) The court stated, “The reader . . . cannot gain any real appreciation of the potential disruption simply by being told the number of minutes that aircraft noise will occur when all of the overflight peak level events are strung together.” (Id. at p. 1037.)
We need not discuss in depth the numerous federal decisions analyzing federal requirements under NEPA that have approved the use of the sound methodology used in this case for assessing aircraft noise. Those decisions were guided by factors not present here. (See, e.g., Morongo Band of Mission Indians v. Federal Aviation (9th Cir. 1998) 161 F.3d 569, 578-579 [upholding use of CNEL in evaluating noise impacts on undeveloped rural areas]; Seattle Community Council Federation v. F.A.A. (9th Cir. 1992) 961 F.2d 829, 833-834 [upholding use of CNEL for project involving changes in flight paths]; Communities, Inc. v. Busey (6th Cir. 1992) 956 F.2d 619, 624-625 [EIS did in fact analyze the impact of increased single event noise]; Valley Citizens for a Safe Environment v. Aldridge (1st Cir. 1989) 886 F.2d 458, 469 [failure to challenge CNEL methodology for measuring noise impacts during comment period barred attacking it after EIS was complete]; Sierra Club v. United States Dept. of Transp. (D.C. Cir. 1985) 753 F.2d 120, 128-129 [upheld noise analysis which included information about individual noise events and imposed noise abatement conditions on airport to alleviate noise problem].)
Nor is the case of Bakman v. Department of Transportation, supra, 99 Cal.App.3d 665 instructive. The issue in Bakman concerned homeowners’ challenges to a Department of Transportation (DOT) approval of an amended airport permit for the Fresno Air Terminal (FAT). The amended permit was necessitated by the acquisition of properties by FAT for airport expansion outside the Fresno city limits. (Id. at pp. 674-675.) One of the challenges alleged DOT failed to consider the impact of FAT’s noise on nearly residents. (Id. at p. 675.) The court concluded that DOT did not violate either state law or regulations in accepting the adequacy of the CNEL analysis used by DOT to evaluate airport noise for permitting purposes. (Id. at p. 684.) However, like the federal cases relied on by the Port, Bakman did not involve a challenge relating to noise impacts under CEQA.
In addition, unlike here and in Davison, the effect on sleep patterns from a proposed increase in overnight flights over noise-sensitive residential areas was not in issue in these cases. Moreover, while federal authority interpreting environmental requirements under NEPA and residential land use planning standards may be helpful to the issue before us, it is important to stress that this is a case brought under CEQA, which imposes its own requirements for assessing environmental impacts from noise. Our Supreme Court has counseled that we “need not follow federal precedent [under NEPA] . . . when the federal provisions cannot fairly be said to parallel ours. [Citations.]” (Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 121.) We find there are important distinctions between the requirements imposed by CEQA and by NEPA in assessing noise impacts that allow us to depart from the federal cases on this subject.
The Legislature has declared in CEQA that “it is the policy of the state” to “[t]ake all action necessary to provide the people of this state with . . . freedom from excessive noise.” (§ 21001, subd. (b).) The Legislature has further declared that it is the state’s policy to “[r]equire governmental agencies at all levels to consider qualitative factors as well as economic and technical factors . . . .” (§ 21001, subd. (g), italics added.) Thus, through CEQA, the public has a statutorily protected interest in quieter noise environments.
CEQA analysis is directed toward identifying any substantial adverse changes in physical conditions (§§ 21060.5; 21100, subd. (d)). An impact is considered “significant” for purposes of CEQA if it will effect a “substantial, or potentially substantial, adverse change in the environment.” (§ 21068; Guidelines, § 15002.) At the time the EIR was certified, CEQA’s significance criteria for evaluating noise were primarily derived from Appendices G and I of the CEQA Guidelines. Appendix G presented different scenarios where a “project will normally have a significant effect on the environment . . . .” It defined a significant noise effect as an action with the potential to “increase substantially the ambient noise levels for adjoining areas; . . .” (As quoted in Lewis v. Seventeenth Dist. Agricultural Assn. (1985) 165 Cal.App.3d 823, 829, fn. 7.) Appendix I, the initial study checklist, stated that any proposal which results in increases in existing noise levels or exposure of people to severe noise levels may require mitigation measures.
By contrast, in implementing NEPA, the FAA has developed specific quantitative significance criteria for measuring aviation noise. (See generally 40 C.F.R. § 1501.3(a) (2001).) The FAA has determined that a significant noise impact would occur if a noise analysis indicates “the proposed action results in an increase within the DNL 65 db contour of DNL 1.5 dB or greater on any noise sensitive area.” [FN 21]
Given the uniqueness of the CEQA standard, the fact that residential uses are considered compatible with a noise level of 65 decibels for purposes of land use planning is not determinative in setting a threshold of significance under CEQA. For example, in Oro Fino Gold Mining Corp. v. County of El Dorado (1990) 225 Cal.App.3d 872, the court ruled that citizens’ personal observations about the significance of noise impacts on their community constituted substantial evidence that the impact may be significant and should be assessed in an EIR, even though the noise levels did not exceed general planning standards. (Id. at pp. 881-882.)
As a further example, the State Airport Land Use Planning Handbook, which the Port is required to use “as a technical resource” in assessing “noise problems” for purposes of EIR preparation (§ 21096), specifically addresses the shortcoming of exclusive reliance on the CNEL metric for assessing changes in aircraft-related noise levels in quieter environments. The pertinent section of the Handbook states: “[A] standard application of cumulative noise exposure metrics is to predict the effects of increased noise resulting from proposed or projected physical or operational changes at an airport. Addressing these anticipated effects is one of the functions of environmental impact documents prepared for airport-related projects.” After discussing the standards of significance established for cumulative noise metrics, the Handbook states: “Not reflected in these screening criteria is that noise increases of several decibels may also be significant in quieter environments (ones below DNL 60).”
In summarizing the EIR’s analysis with regard to nighttime flights, the 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. Instead, as explained in a written response to public comment on the draft EIR’s noise analysis, the significance criteria used in the EIR automatically excluded “all residential uses within the 65 CNEL contour regardless of the change in noise” due to the ADP. (Italics added.) Consequently, implementation 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 create noise levels over and above the existing ambient noise level at a given location, and the community reaction to aircraft noise, including sleep disturbance.
The probability of being repeatedly awakened by multiple single-event sounds can be calculated, given sufficient data. The appendix to the EIR included a technical treatise entitled, “Description of Noise and its Effects on People.” This document describes a supplementary single-event noise analysis used for predicting what percentage of the population is expected to be awakened by an aircraft overflight. The treatise explains, “[T]he sound exposure level [SEL] has been found to be the most appropriate and useful descriptor for most types of single event sounds including aircraft fly-bys.” (Italics added.) Included is a table in which “the frequency of sleep disruption (as measured by changes in sleep stage, including behavioral awakening) is plotted as a function of the Sound Exposure Level.” Unfortunately, the Port’s expertise was never utilized to conduct such an analysis. [FN 22]
Furthermore, a supplementary analysis will provide more accurate information than was given the public in late 1996, when the EIR was made available for public review. On this point, the record reveals that the EIR assumed 100 percent compliance with the phaseout of noisy Stage 2 aircraft for both analysis years (2000 and 2010). The EIR went on to hypothesize, “The continued phase-out of Stage 2 aircraft would be expected to more than offset the increase in late night departures through 2000. With the elimination of Stage 2 aircraft, the noisiest existing late-night aircraft events at [the Airport] would be eliminated.” Given that we are past the 2000 deadline for the phasing out of Stage 2 aircraft, we believe that this hypothesis can be tested and a more accurate assessment of the existing noise levels around the airport can be made. “In some cases, conditions closer to the date the project is approved are more relevant to a determination whether the project’s impacts will be significant. [Citation.]” (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 125.) This is such a case. [FN 23]
E. Aircraft Safety
Petitioners claim that the EIR ignored the safety implications of an overall increase in air traffic at the Airport. The Port responds that no such analysis was required because it legitimately came to the conclusion that the proposed ADP would have no effect –– much less a significant effect –– on the risk of accidents involving aircraft at the Airport. Therefore, no discussion of aircraft safety impacts needed to be included in the EIR.
Both Appendix P of the final EIR and the responses to comments after the draft EIR were circulated for review addressed the contention that an increase in commercial jet activity will increase safety risks. The responses to public comments in the final EIR rested on the premise that “no causal relationship has been established between increases in commercial jet aircraft activity and risk of accident. While commercial aviation activity has grown dramatically in recent decades, accident rates have not.” This conclusion is supported by the following facts, which stand unrefuted by petitioners:
The final EIR also included an opinion letter by Dr. Arnold Barnett of the Massachusetts Institute of Technology (MIT), an eminent expert in air safety issues. [FN 24] Based on an array of data about the proposed airport expansion, he opined “that any increase in public risk posed by the expansion in North Field’s jet operations is negligible if not nonexistent.”
F. Mitigation Plan for Western Burrowing Owl
Petitioners contend that the EIR unlawfully deferred defining the mitigation measures the Port plans to take to protect the western burrowing owl. The western burrowing owl is a unique species of owl that nests and sleeps in the abandoned underground burrows of ground squirrels. It is a “species of concern” due to the loss of suitable habitat and both localized and statewide population declines in the species. The Department of Fish and Game (DFG) has identified the Airport’s population of burrowing owls as “important to maintaining the Bay Area population” and preventing the “species from being listed under the California Endangered Species Act.”
The EIR addressed the presence of this particular species in the project area and acknowledged that “[d]uring construction and operational phases of project development, individual burrowing owls may be wounded or killed or burrows could be destroyed.” Recognizing the importance of protecting burrowing owls, the EIR identifies mitigation measures designed to “reduce potential impacts to the burrowing owl to a less-than-significant level.”
Key elements of the mitigation plan were outlined in the EIR as follows: Prior to the construction, the Port will survey and monitor burrows located in construction areas for owl occupancy. Any owls found occupying burrows that will be affected by construction will be relocated to new artificial burrows in a burrowing owl relocation area. With implementation of this future plan, the EIR declared that the project’s significant impacts on the burrowing owl would be reduced to a level of insignificance. The objectives of the mitigation plan were summarized by the Port as follows: “The intent of the plan is to provide long-term conservation of a self-sustaining population of owls within undeveloped portions of the Airport by restricting owls to less sensitive areas and by maintaining and enhancing suitable habitat in those areas.”
When this mitigation plan was released for public comment before the final EIR was certified, the DFG provided written criticism. The DFG’s letter indicated the mitigation proposed in the draft EIR for the burrowing owls “is not adequate for their protection and does not follow the Department’s guidelines for the species.” (Italics added.) Among other things, the DFG questioned the adequacy of the draft EIR’s proposed one-to-one replacement ratio for destroyed owl burrows, it requested more information about the location and size of the mitigation area, and it asked the Port to explain how it planned to permanently protect the mitigation site from conversion to other uses.
The final EIR did not provide for new or modified mitigation measures in response to the DFG’s comments, nor did it contain any new standards for replacement of burrows destroyed by construction of the ADP. Also absent was any explanation, as requested by the DFG, why the number of acres proposed for the replacement habitat would be sufficient, how the replacement habitat will be protected, or where it will be specifically located. In spite of the fact that the Port had been alerted to some significant problems by the agency with technical expertise in species conservation, the mitigation measures proposed in the final EIR are essentially identical to those proposed in the draft EIR. Thus, like the draft EIR, the final EIR contains the Port’s commitment to work with the DFG and the U.S. Fish and Wildlife Service (USFWS) to develop appropriate mitigation measures to avoid further jeopardy to the burrowing owl. Additionally, as a specific condition of project approval, the Port Commissioners directed that the final “Burrowing Owl Management Plan” be submitted and approved by the DFG and the USFWS.
The Port’s approach of giving assurance that it will address the DFG’s concerns at some point in the future is hard to reconcile with CEQA’s requirement that a project’s significant environmental impacts be assessed and mitigated “at the earliest possible time in the environmental review process.” (§ 21003.1; see Bozung v. Local Agency Formation Com., supra, 13 Cal.3d at p. 282.) After all, it is during the environmental review process, not after project approval, “ ‘where genuine flexibility remains’ ” and public input is most meaningful. (Mount Sutro Defense Committee v. Regents of University of California, supra, 77 Cal.App.3d at p. 34.)
Case law recognizes that there will be instances where the formulation of the precise means of mitigating impacts is not possible at the time of EIR preparation. (Sacramento Old City Assn. v. City Council, supra, 229 Cal.App.3d at pp. 1028-1029 [where mitigation is clearly feasible, agency may list potential mitigation measures and defer choice of specific measures to a future study].) However, in these instances, the EIR should provide reasonable assurance that the various mitigation methods proposed are feasible from a technical standpoint. The EIR should also articulate specific performance criteria creating a reasonable expectation that the mitigation measures will be successful in reducing the project’s potential environmental impacts to a level of insignificance. (See Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 308-311; Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1396-1397.)
We do not see this issue as being analogous to the failure of the EIR to detail its strategy as to how the Port will comply with the SIP, discussed earlier. In that instance, the Port necessarily must await FAA’s “conformity determination” before addressing any remedial measures. Here, DFG, the state agency that must approve any mitigation plan for the burrowing owl, has expressed discrete criticisms of the draft EIR which remain unanswered.
We believe the Port, as lead agency, could have legitimately taken one of two approaches once it received the criticism of DFG. On one hand, the Port could have rejected the DFG’s criticism and defended the mitigation plan contained in the draft EIR as being appropriate for protection of the burrowing owl by offering credible, contrary scientific analysis of its own. On the other hand, the Port could have given credence to the DFG’s criticisms by adopting specific performance criteria that addressed the perceived inadequacies in the mitigation plan. Instead, the final EIR simply swept aside these environmental concerns, and assured the public and the decision makers that the Port and the DFG will find a way to work out their differences by jointly developing a “Burrowing Owl Management Plan” after the EIR was certified and the project approved. Given the EIR’s acknowledgment that the Airport expansion will destroy owl burrows and may wound or kill individual owls, the Port cannot simply promise it will “comply with DFG standards” in developing a workable mitigation plan as a way of warding off public scrutiny.
Therefore, the EIR must contain mitigation measures for protecting the burrowing owl and its habitat, which are discussed in sufficient detail to ensure that the potential environmental consequences to this species of proceeding with the ADP have been fairly evaluated. Accordingly, we do not address petitioners’ argument that the Port has not undertaken the necessary environmental analysis to ensure that its mitigation plan will ultimately be successful. The scientific uncertainties in the Port’s proposed mitigation plan will have to be addressed, not by this court, but by the agencies and experts having a high level of technical expertise in these matters.
G. Growth-Inducing Effects
Petitioners allege that the EIR failed to consider adequately the ADP’s growth-inducing effects as required by section 21100, subdivision (b)(5). Their argument is that construction of the ADP would inherently tend to induce increased levels of passenger traffic and that the EIR must evaluate the future need to expand the main passenger terminal and parking facilities to meet increased passenger demand.
The EIR must discuss growth-inducing effects of the proposed project. (§ 21100, subd. (b)(5); Guidelines, § 15126. subd. (d).) The EIR discussed the growth-inducing effect of the ADP. It mentioned the ways that the ADP might induce population and economic growth, the effects on housing, and how the proposed project may encourage or facilitate other activities that could affect the environment.
Petitioners do not challenge t he adequacy of this discussion. However, they direct our attention to one of the Port’s planning documents indicating that certain components of the ADP, specifically the proposed expansion of the main terminal and the parking lot, “are planned with an eye toward additional expansion necessary to accommodate passenger levels in 2010 and beyond.” [FN 25] They criticize the Port’s failure to evaluate or comment upon the possible expansion of these facilities in its discussion of the growth-inducing impacts of the ADP. Petitioners argue that the “Port’s refusal to analyze the environmental impacts of the additional terminal and parking facilities expansion that would be induced by the ADP violated CEQA.”
However, in this case substantial evidence supports the Port’s assertion that there is no precise correlation between expanded airport facilities and increased passenger demand. The record shows that growth in airport usage depends on a combination of factors that are extremely difficult to predict, such as ticket price, availability of competing travel modes, and the strength of the regional economy. By the same token, crowded and congested passenger terminals do not necessarily diminish airport usage. Indeed, the passenger facilities at the Airport are designed for five million passengers. At the time the EIR was being prepared, the Airport was serving twice that many passengers, with the number of passengers still growing. As the Port convincingly argues: “[I]f overcrowded conditions do arise, it does not follow that the overcrowding will be caused by the ADP; it will be caused by market demand leading to increased passenger activity despite congested facilities.” (Original italics, fn. omitted.)
In sum, while not without dispute, the Port has provided substantial evidence that an increase in passenger traffic causing overcrowded conditions is too speculative to be considered as a potential impact of proceeding with the ADP. To the contrary, the Port has shown that much of the Airport’s growth potential and the need for expanded facilities would be dependent upon factors entirely unrelated to the Airport improvements envisioned in the ADP. Consequently, with so much contingent upon as yet unknown factors, it is problematical to say how much further any analysis of the growth-inducing effect of the project could be meaningfully taken at this point in time. We conclude, therefore, that the EIR’s discussion of growth-inducing effects is adequate under CEQA.
H. Conclusion with Respect to Adequacy of the EIR
As we have already noted, the absence of information from the EIR “ ‘does not per se constitute a prejudicial abuse of discretion.’ [Citation.]” (Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners, supra, 18 Cal.App.4th at p. 749.) A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process. (Id. at p. 748.)
Based on these guiding principles, we conclude here that the EIR was inadequate in several critical respects: 1) by failing to fully analyze the noise impacts on nearby residents from additional nighttime flights; 2) by using an outdated speciation profile to assess TACs; 3) by failing to support the decision not to conduct a health risk assessment with meaningful analysis, and 4) by failing to set forth an adequate mitigation plan for the western burrowing owl. Because of these inadequacies, the Port Commissioners’ decision to certify the EIR prepared for the ADP was an abuse of discretion.
Our conclusion that the EIR was deficient in the above-enumerated respects dictates the outcome of the Port’s cross-appeal in the main CEQA action, Appeal No. A086708. To the extent that the potential significant effects of the proposed ADP were inadequately analyzed and unknown, the Port could not provide any meaningful analysis of the cumulative impacts from this project when considered in conjunction with other projects (§ 21083, subd. (b)) nor could it provide any meaningful analysis of environmentally superior alternatives to the project (§ 21002). Although we have traveled a different analytical path than the trial court, we agree that by approving the ADP without the necessary information regarding cumulative impacts and project alternatives, the Port Commissioners abused its discretion.
Approximately five months after the trial court issued the writ ordering the Port to set aside approval of the ADP and certification of the EIR, the Port completed a supplement to the EIR (hereafter SEIR). In preparing the SEIR, the Port attempted to remedy the deficiencies in the original EIR’s discussion of project alternatives and cumulative impacts specifically identified by the trial court when it issued the writ. In preparing the SEIR, it is clear the Port did not endeavor to correct any of the deficiencies identified in the EIR rejected by the trial court but which were the subject of Appeal No. A086708 then pending before this court. On June 29, 1999, the Port Commissioners certified the SEIR and reaffirmed its approval of the ADP.
The Port Commissioners’ approval of the SEIR set the stage for the Port’s motion to discharge the writ of mandate based on an accompanying return to the writ of mandate. Because of the pendency of the appeals by all parties challenging portions of the court’s original judgment that were adverse to them, petitioners requested that the court make a preliminary determination of whether it had jurisdiction to hear the motion to discharge the writ. On August 3, 1999, petitioners jointly filed a brief contesting jurisdiction, and the Port filed its brief in support of jurisdiction. After considering the briefs, the court ruled, without explanation, that it had jurisdiction to hear the motion to discharge the writ.
Following briefing and a hearing on the merits, the trial court issued its ruling that the SEIR satisfied the conditions of its peremptory writ, and granted the Port’s motion to discharge the peremptory writ of mandate. In Appeal No. A089660, petitioners City of Alameda, the City of San Leandro, [FN 26] and CLASS each appeal from the trial court’s order discharging the writ.
Because the trial court’s judgment approving portions of the EIR and finding other portions inadequate was the subject of pending appeals and a cross-appeal filed by both petitioners and the Port, section 916, subdivision (a), deprived the trial court of jurisdiction to discharge the writ. These pending appeals precluded the trial court “from rendering an appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it. [Citation.]” (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938; Copley v. Copley (1981) 126 Cal.App.3d 248, 298 [“[d]uring the pendency of an appeal, the trial court is without power to hear a motion to vacate a judgment from which an appeal has been taken . . . .”]; Rogers v. Superior Court (1899) 126 Cal. 183 [appeal divested trial court of jurisdiction to decide whether defendant had complied judgment’s prescribed conditions for dissolution of permanent injunction].) “The loss of jurisdiction is so complete that even the consent of the parties is ineffective to reinvest the trial court with jurisdiction over the subject matter of the appeal. [Citation.]” (Lerner v. Superior Court (1952) 38 Cal.2d 676, 680.)
The rationale behind Code of Civil Procedure section 916, subdivision (a) has recently been described by our Supreme Court as follows: “‘The purpose of the rule depriving the trial court of jurisdiction during a pending appeal is to protect the appellate court’s jurisdiction by preserving the status quo until the appeal is decided. The rule prevents the trial court from rendering an appeal futile by altering the appealed judgment . . . by conducting other proceedings that may affect it.’ [Citation.]” (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1089, italics added.) “Accordingly, whether a matter is ‘embraced’ in or ‘affected’ by a judgment within the meaning of section 916 depends upon whether postjudgment trial court proceedings on the particular matter would have any impact on the ‘effectiveness’ of the appeal. If so, the proceedings are stayed; if not, the proceedings are permitted.” (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629, italics added; see also In re Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381; People v. Schulz (1992) 5 Cal.App.4th 563, 570-571; Betz v. Pankow, supra, 16 Cal.App.4th 931.)
Using that test, the instant case presents a quintessential illustration of the rationale behind the rule and demonstrates the confusion and waste that ensues when the trial court makes post-appeal rulings affecting the identical issues that are pending before the appellate court. On September 26, 2000, on our own motion, we issued an order consolidating two new appeals, No. A091969 (City of San Leandro v. Port of Oakland) and No. A091974 (City of Alameda, et al. v. Port of Oakland), with the instant appeals that were already pending before this court. These new appeals, which were not yet fully briefed, challenged other post-judgment rulings made by the superior court regarding CEQA compliance for the Airport expansion. Several months after we entered our consolidation order, both Appeal No. A091969 and Appeal No. A991974 were voluntarily dismissed. We issued an order approving the dismissal of A091974 on December 11, 2000, and an order approving the dismissal of A091969 on January 4, 2001, finally making this matter ripe for appellate disposition.
If this court had been given the opportunity to answer the many important questions raised in the first round of appeals, we would have been able to offer important guidance to the parties and the trial court at a point in time when it could have directly influenced future proceedings. By contrast, because the trial court continued to issue rulings on matters encompassed by the pending appeals, numerous successive appeals on what has proven to be similar, if not identical issues, had to be filed. This has added to the litigation burdens faced by the parties and has increased the administrative burdens imposed on this court. Furthermore, with each successive round of record preparation and briefing, there can be no doubt that it has created unnecessary delay in getting this matter resolved at the appellate level.
In light of Code of Civil Procedure section 916, subdivision (a), any matter related to the judgment or peremptory writ of mandate should have been stayed until the completion of appellate review of the judgment. The Port has failed to provide any valid justification for the superior court’s decision to discharge the writ while the judgment and the writ itself were the subject of a pending appeal and within the exclusive jurisdiction of this court. [FN 28] The court’s order discharging the writ was therefore a void judicial act and without legal effect, thereby mooting petitioners’ appeal from this order.
Last we consider Appeal No. A087959, in which we are asked to review the trial court’s order awarding attorney fees for petitioners’ success below. Fees were awarded under Code of Civil Procedure section 1021.5, [FN 29] the private attorney general theory. Section 1021.5 confers discretion on a trial court to award legal fees when the following criteria are met: (1) the action “has resulted in the enforcement of an important right affecting the public interest,” (2) “a significant benefit” has been “conferred on the general public or a large class of persons,” and (3) “the necessity and financial burden of private enforcement . . . are such as to make the award appropriate, . . .” (§ 1021.5; see also Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 934- 935.) Petitioners amply met each of the criteria for entitlement to a fee award under section 1021.5, and the Port does not contend otherwise. The parties’ dispute is over the amount of the trial court’s award.
Petitioners elected to determine the allocation themselves. On July 8, 1999, the superior court issued a second order apportioning the $180,000 among the petitioners pursuant to their stipulation.
All parties appealed the trial court’s fee ruling. The Port filed a protective cross-appeal, which ensured it would have the right to request a downward adjustment of the $180,000 attorney fee award should we reverse the trial court’s ruling finding the EIR was deficient in its discussion of cumulative impacts. As the Port has not prevailed it its cross-appeal, there is no basis for reducing the attorney fees awarded petitioners under section 1021.5.
On the other hand, petitioners City of San Leandro, [FN 30] City of Alameda, KJOB, and CLASS each appealed challenging the trial court’s decision to award a lump sum of attorney fees to all the petitioners and requiring the petitioners to stipulate how the $180,000 would be divided. We are mindful that a determination of the amount of an attorney fees award lies within the discretion of the trial judge. (Press v. Lucky Stores, Inc. (1983) 34 Cal.3d 311, 322.) However, in evaluating the exercise of that discretion, we must answer the questions of whether the trial court’s actions are consistent with the substantive law and, if so, whether the application of law to the facts of the case is within the range of discretion conferred upon the trial court. (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1298.)
Our Supreme Court has cautioned, “The proper determination and use of the lodestar figure is extremely important. As this court noted in Serrano III, ‘ “The starting point of every fee award . . . must be a calculation of the attorney’s services in terms of the time he has expended on the case. Anchoring the analysis to this concept is the only way of approaching the problem that can claim objectivity, a claim which is obviously vital to the prestige of the bar and the courts.” ’ [Citations.]” (Press v. Lucky Stores, Inc., supra, 34 Cal.3d at pp. 321-322.)
Because the court did not make detailed findings and none were requested, the Port indicates that we must assume the $180,000 fee award “is reasonably connected to a lodestar calculation.” (Original italics.) We are also asked to assume the trial court considered petitioners’ fees and expenses in participating in the administrative proceedings, the services provided during the writ proceedings in the superior court, and the expenses incurred in litigating the fee motion itself. These are unsupported assumptions, and therefore, we will not indulge them.
Even without any detailed findings, the methodology used by the trial court in making its attorney fee award is obvious. San Leandro established that it incurred at least $181,818 in fees and costs pursuing the case. The court made its award of $180,000 for all of the petitioners by apparently taking the San Leandro figure and rounding it off. But this figure is far from the amounts presented by the three other petitioners, either individually or collectively. In particular, CLASS sought $295,470.24; Alameda sought $225,545.13; and KJOB sought $63,078.75.
As one of the briefs appears to have aptly described it, the award in this case was arrived at by the court “picking the attorney fee proposal of one of the petitioners (in this case the $180,000 fee request of San Leandro) and without analysis or lodestar calculations force all petitioners to divide up that very small pie among themselves.” (Original underscoring; fn. omitted.) Therefore, the court’s method for determining attorney fees in this case is challenged as an “improper and divisive process for setting and apportioning fees” unsupported by law, logic, or the record in this case. We agree.
The mechanism chosen by the trial court by which to award attorney fees to successful public interest parties who employ independent, but cooperating counsel, was improper. While the court is under no legal mandate to reimburse the total amount of fees claimed by each petitioner, by the same token, the court abuses its discretion when it arbitrarily reduces all claimed fees down to the lowest amount claimed by any single party, and then requires all parties to share that amount.
Consequently, we conclude that the order awarding $180,000 in attorney fees to petitioners for their success below must be reversed and remanded for reconsideration of the amount of the award. On remand, the trial court is directed to calculate the fee award using a lodestar or touchstone method based on consideration of each petitioner’s contribution to the litigation. Because neither the trial court nor the Port contested the itemized hours or rates charged by counsel, those rates and hours should be deemed reasonable.
For guidance on remand, we briefly discuss two additional issues raised by the Port. On appeal, the Port claimed that the limited attorney fee award could be upheld in this case because of “petitioner’s lack of success on specific CEQA claims. . . .” The Port is correct that the trial court may reduce the amount of a fee award to reflect the prevailing party’s limited success. (Californians for Responsible Toxics Management v. Kizer (1989) 211 Cal.App.3d 961, 973-975; see also Press v. Lucky Stores, Inc., supra, 34 Cal.3d at pp. 322-323; Serrano III, supra, 20 Cal.3d at p. 29.) However, the Port’s characterization of petitioners’ level of success is inaccurate.
As we have already discussed, the Port’s failure to conduct complete cumulative impacts and alternatives analyses goes to the heart of the informational purpose served by the EIR. There is no dispute concerning petitioners’ success in obtaining writ relief based on these deficiencies in the EIR. Furthermore, petitioners have prevailed on many of their other challenges to the EIR, which had been rejected by the trial court. Based on these factors, there appears to be no justification to reduce petitioners’ lodestar amounts based on the premise that their success was “limited.”
The Port also emphasizes that the trial court characterized petitioners’ efforts as “duplicative.” The Port argues this finding is supported by “ample evidence” which can be found in petitioners’ billing records which reveal “large amounts of time engaging in redundant briefing, attending the same hearings, drafting duplicative writ petitions, and consulting with one another . . . .”
The EIR under review related to a large project having wide-ranging impacts to the diverse communities surrounding the Airport. Many of the environmental concerns for the project differed from party to party. As KJOB argues, “The Port’s massive ADP will triple the airport’s capacity, causing significant impacts in the entire region. All local communities, including Berkeley, Alameda, San Leandro, and many others, will feel those impacts. These impacts will vary, depending on which end of the runway each community lies, its distance from the airport, exact day and night flight paths, and other factors. It is unreasonable to expect that in the face of these significant and varied impacts, all impacted communities should speak with a single voice in a single set of pleadings. This is not contemplated by CEQA, and would deny each community its statutory right to enforce its CEQA rights.”
We agree. This diversity of interest among the petitioners is reflected in the priority and depth of treatment each assigns to the respective issues in their appellate briefs and at oral argument. Under these circumstances, it unfairly trivializes these disparate interests by denominating as unnecessary “duplication” any attorney fees incurred in addressing the same issues by more than one petitioner. On remand, the trial court should scrutinize carefully the Port’s argument that the award of attorney fees should be reduced for “duplication.” A reduction should be considered for this reason only where the legal efforts challenged were unnecessary to, and did not contribute to, the achievement of the litigation objectives.
For purposes of remand, we also direct the trial court’s attention to cases holding that fees “should be awarded” for administrative proceedings which were “‘useful and necessary and directly contributed’” to the favorable result achieved by the prevailing party in litigation. (Best v. California Apprenticeship Council (1987) 193 Cal.App.3d 1448, 1459; Ciani v. San Diego Trust & Savings Bank (1994) 25 Cal.App.4th 563, 576- 577; Californians for Responsible Toxics Management v. Kizer, supra, 211 Cal.App.3d at pp. 971-972.) Furthermore, our Supreme Court has held that, “fees recoverable under section 1021.5 ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 639, italics added and fn. omitted.)
Finally, because petitioners are “successful parties” on numerous issues in the present appeal, the suit involves important public rights, and there is no monetary recovery, petitioners are entitled to attorney fees incurred on appeal under section 1021.5. While we trust the foregoing will provide guidance to the trial court upon remand, the issue of the amount of any attorney fees award is left to that court’s determination on petitioners’ motions after the remittitur is filed. (See generally Laurel Heights I, supra, 47 Cal.3d at pp. 425-427.)
In Appeal No. A087959, the superior court’s order awarding $180,000 attorney fees is hereby reversed. On remand, the court is to issue a new order awarding petitioners legal fees under Code of Civil Procedure section 1021.5 in accordance with the views expressed in this opinion.
Petitioners are awarded their costs on appeal.
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Ruvolo, J.
We concur:
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Kline, P.J.
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Haerle, J.
Trial Court: Alameda County Superior Court
Trial Judge: Hon.William E. Jensen (Retired Judge of the
Solano Superior Court assigned by the Chief
Justice pursuant to art. VI, § 6 of the Cal. Const.)
Counsel for Petitioners: John R. Shordike
Shute, Mihaly & Weinberger
E. Clement Shute, Jr.
Carol A. Korade, City Attorney
David Brandt, Deputy City Attorney
McDermott, Will & Emery
Steven F. Pflaum
Counsel for Respondent: McCutchen, Doyle, Brown & Enersen
Stephen L. Kostka
Barbara J. Schussman
Peter S. Hayes
Geoffrey L. Robinson
Brecher & Volker
Joseph J. Brecher
David L. Alexander