“Lotus v. Caltrans: Rethinking Mitigation Measures and Innovative Design Solutions for a Greener Future!”
Some Background on This Case
Lotus v. Caltrans involved a battle over the widening of U.S. Route 101 through Richardson Grove State Park due to potential impacts on old growth redwoods. The California Department of Transportation (CalTrans) was, and still is, proposing to widen Route 101. The plaintiffs were concerned the project would cause severe impacts to redwoods along the highway so they sued CalTrans. The plaintiffs made several CEQA claims; one claim in particular, and the subject of this blog, involved how CalTrans defined its project.
CalTrans included in the project description several actions designed to minimize impacts to redwoods and to compensate for the loss of redwood trees and habitat that would need to be removed during the project construction. id CalTrans included as part of the project the use of “shovels, pick axes, or pneumatic excavator or other methods approved by the construction engineer to minimize disturbance or damage to the roots…” (Lotus v. Dep’t of Transp., 223 Cal.App.4th 645, 167 Cal.Rptr.3d 382 (Cal. App. 2014)) and the use of “Cement Treated Permeable Base (CTPB) to minimize the thickness of the structural section, provide greater porosity, minimize compaction of roots, and minimize thermal exposure to roots from Hot Mix Asphalt paving…”. After including the above measures into the project description, CalTrans held that “[n]o significant environmental impacts are expected as a result of this project with the implementation of the stated special construction techniques.”…” id
The plaintiffs objected to using the above-listed impact reduction measures as project features. They claimed that CEQA does not allow a project proponent to include mitigation measures into a project description to reduce project impacts to less than significant levels and that CalTrans’s use of special construction measures and other measures in the project description, and its finding that the project impacts were less than significant, violated CEQA. The plaintiffs claim that these measures should have been identified as mitigation measures for significant environmental impacts.
Plaintiffs lost at the trial court and appealed the decision, In a somewhat unclear opinion, the Appellate Court agreed with the appellant/plaintiffs and found that it was impermissible for CalTrans to lump into the project description all measures that were to be implemented during and after constructing and that were intended to avoid, reduce or mitigate impacts to redwood trees. Notoriously, footnote 8 of the case states “The distinction between elements of a project and measures designed to mitigate impacts of the project may not always be clear. For example, in the present case the use of “Cement Treated Permeable Base (CTPB) to minimize the thickness of the structural section, provide greater porosity, minimize compaction of roots, and minimize thermal exposure to roots from Hot Mix Asphalt paving” might well be considered to define the project itself. It would be nonsensical to analyze the impact of using some other composition of paving and then consider the use of this particular composition as a mitigation measure. However, the same cannot be said of most of the “avoidance, minimization and/or mitigation measures” here, such as restorative planting and replanting, invasive plant removal, and use of an arborist and specialized equipment. These are plainly mitigation measures and not part of the project itself.” id
The Fallout From This Opinion
Like many other CEQA practitioners, I am concerned by the Court opinion in Lotus v. Caltrans and the confusion it seems to have created for lawyers and CEQA practitioners. This case has generated voluminous commentary, and some commenters have even opined that this Court has nullified the use of project impact avoidance and reduction measures during project design. I don’t believe that the opinion went that far.
Generally, CEQA requires project proponents to avoid, minimize, and mitigate project impacts where feasible. CEQA encourages early environmental review and both CEQA and the Courts have recognized that some level of environmental review can be done before CEQA formally commences. In this case, some sort of environmental review was conducted during the design of the project, and impact-reduction measures were incorporated into the design. These measures were incorporated into the project description and underwent engineering and design review as part of the proposed project. The design changes that were made to avoid and reduce impacts to Redwoods, like other project design aspects, were required to be approved by registered Civil and or other types of engineers. The planting and vegetation restoration actions proposed by CalTrans were neither required to be reviewed and approved by engineers nor were they required to be conducted during project construction. The revegetation actions could have occurred any time after the project had been built. Installing a permeable road base had to occur during the construction of the project.
I think that the court was on the right track with footnote 8 and the rest of the opinion. The court noted the difference between construction measures and those measures that are not part of the project. I think the court could have further distinguished the difference between project features and mitigation measures. The court could have found that those measures that are incorporated into project design requiring engineering similar to the entire project and that have to be implemented during construction are properly called project design features even when those features are incorporated to reduce or avoid environmental impacts. Those features that can be implemented independently of project design and engineering review that can be implemented during or after construction of the project and that are designed to minimize, avoid, or compensate for project-related impacts could appropriately be called mitigation measures.
In most large projects, design is conducted incrementally. First, there is usually some sort of preliminary design and feasibility study to determine the costs of the proposed project. Many agencies have identified environmental impact reduction measures that can be incorporated into design to reduce impacts. These measures are often utilized within projects to try and craft a project with minimal environmental impacts. However, these changes have to be incorporated into the design, analyzed during the project engineering phase, and incorporated into the overall design and construction of the project and are required to be reviewed and certified by registered engineers in California.
Conducting early limited environmental review is especially critical for large infrastructure projects that require expensive engineering design and review before the project can even be sent out for bid. Impacts resulting from the location or alignment of a project and the design are most cost-effective and dealt with through project design changes. For instance, a pipeline project typically involves trenching or boring operations during construction. Trenching through a streambed will create environmental impacts, whereas tunneling under the stream could eliminate many of the impacts that would occur with trenching. However, the cost of tunneling is higher than trenching. Sometimes tunneling methods can be cost-prohibitive and it may be better to relocate the project alignment to avoid interacting with the streambed. Waiting until a project has been fully designed to conduct an environmental review and identify reduction measures may result in many of those measures being found infeasible based on cost.
It is better to identify these types of potential environmental impacts early in the design phase to allow environmental staff to collaborate with engineering staff to design a project that reduces both cost and environmental impacts.
Another example is placing a project within designated critical habitat. All would probably agree that moving the project outside of critical habitat is a much better option than trying to find appropriate compensatory mitigation for projects that are located within and impact critical habitat. Doing a limited environmental review during design allows project proponents to identify environmental issues early enough in the project to make the appropriate changes to the design of the project. When a change is made to a portion of a project the changes often require modification of other parts of the project. Changing the alignment of a pipeline can affect the operation of the rest of the pipeline. For instance, if the alignment change results in a higher elevation for the pipeline segment then pumps or operating pressure may need to be added or increased to compensate for the change. These types of impact-reducing decisions are best dealt with early in design and engineering review rather than after the design is nearly complete. This avoids redundant review and design work and makes it easier for agencies like CalTrans to implement impact reduction, and avoidance measures into the project.
The Court, in footnote 8, seems to intuitively understand that there is a difference between the types of measures that CalTrans implemented to reduce environmental impacts, but they simply did not pin down the distinction. I think the distinction that they sought is that measures that can be implemented independently from the proposed project design and construction are appropriately termed mitigation measures. Also, measures designed to compensate or replace ecological services impacted by a proposed project are clearly mitigation measures. However, those impact avoidance or reduction measures, such as changes in the alignment or location of the proposed project, changes in the means and methods used to build the project, and changes in the material used have to be included in the project design and engineering review to be implemented are more appropriately termed project design features.
I hope that future courts read Lotus v. Caltrans as asserting the proposition that when an impact avoidance or reduction measure has to be implemented through project design and construction, such measures are properly called project design features. Those actions or measures that avoid, reduce, or compensate for project impacts and which can be carried out independently from project design and construction would be more appropriately called a project mitigation measure subject to CEQA as such. This reading is consistent with the opinion in Lotus v. Caltrans, provides clarity to project proponents and CEQA practitioners, often results in a project that has the least environmental impact, and better maintains the environment than those projects that involve efforts to compensate for or try and restore areas for injuries that occur.
PostScript.
As of August, of this year, Caltrans was still in court arguing about the impacts of its widening project and is recirculating portions of the environmental review for the project. The 2017 Addendum to the Final Environmental Impact Report is being circulated for public review and comment. The 2010 Final EIR is being provided for background and context only (see documents section below). Written comments on the Addendum will be accepted through November 19, 2021. In this addendum, Caltrans analyzed the proposed project under a “typical build” scenario using no avoidance or mitigation measures. Caltrans states that “Potential impacts were first evaluated as if the project would be constructed using conventional construction methods (e.g., all work done with heavy equipment and no special consideration of old growth redwood roots) as set forth by the appellate court in Lotus v. California Department of Transportation”. I don’t read the Lotus Court opinion to require Caltrans to conduct this hypothetical analysis. The Court specifically stated that It would be nonsensical to analyze the impact of using some other composition of paving and then to consider the use of this particular composition as a mitigation measure. Under this analysis, Caltrans states that “Construction of the project using conventional methods would not affect the capacity of the forest canopy to provide shading, habitat, and other ecosystem functions.” Caltrans asserts that “Even in the absence of minimization measures, this project would not jeopardize the health or survival of any of the old growth redwoods” and that “prior to applying any special protective measures, no significant impacts would occur to old growth redwood trees as a result of the project”. Even though Caltrans stated that no significant impacts are expected to occur they are going to include measures to be incorporated into the project to mitigate impacts to redwoods and the associated forest ecosystem. If the CalTrans addendum gets litigated I hope that future courts use any subsequent litigation to clarify its comments in Footnote 8 of Lotus v. Caltrans consistent with my quarterback opinion above. Stay tuned.
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