Center for Biological Diversity v. County of Kern

Filed 4/6/07 Center for Biological Diversity v. County of Kern CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from an order of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.

John Buse and Caroline Farrell for Plaintiffs and Appellants.

B. C. Barmann, Sr., County Counsel, and Charles F. Collins, Deputy County Counsel, for Defendants and Respondents.

Paul, Hastings, Janofsky & Walker, Robert I. McMurry and A. Catherine Norian for Real Parties in Interest and Respondents.

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INTRODUCTION AND FACTUAL OVERVIEW

In 2003, respondents Kern County and Board of Supervisors of Kern County (County) approved a project proposed by respondents and real parties in interest Tejon Industrial Corp. and Tejon Ranchcorp (Tejon) to build and operate 15.5 million square feet of mixed-use development (13.6 million square feet warehouse and distribution space; 1.5 million square feet industrial/manufacturing uses; 275,000 square feet commercial uses, including two diesel fuel dispensing stations, two gasoline stations and nine restaurants), together with associated road improvements, a 3.5 megawatt gas turbine cogeneration facility and a water treatment facility. The project will be constructed on a 1,109-acre site located in southern Kern County, on the east side of Interstate 5 (I-5), approximately three miles north of the base of the Tejon Pass.

The project, known as Tejon Industrial Complex-East, is the second part of a dual-phased development project. In 2000, County approved Tejon Industrial Complex-West, which is located on 339 acres to the west of the project site (Tejon-West). Tejon-West will include about 4 million square feet of development for industrial and commercial uses. Much of Tejon-West is complete.

A portion of the project and a portion of Tejon-West are designated as a Foreign Trade Zone (FTZ), which allows certain customs procedures for commercial industrial products to be performed at the inland site instead of at the port of entry.

Appellants Center for Biological Diversity, Center on Race, Poverty and the Environment, Sierra Club and Kern Audubon Society sued to overturn the project approval and certification of the projects environmental impact report (EIR), alleging noncompliance with the California Environmental Quality Act (CEQA). The trial court issued a peremptory writ of mandate vacating and setting aside the approval of the project and certification of the EIR. It found deficiencies in the EIRs air quality analyses and in the failure to analyze the projects possible impacts on the coast horned lizard and Swainsons hawk.

Subsequent to issuance of the writ of mandate, the project was modified, in relevant part, to include a Voluntary Emissions Reduction Program (VERP) as a component of the proposed Tejon Industrial Complex East Specific Plan (specific plan). The VERP consists of a contractual agreement between Tejon and San Joaquin Valley Air Pollution Control District (SJVAPCD). In addition to including a number of design features into the project to offset emissions from both construction and operation of the proposed uses on the project site, Tejon agreed to pay SJVAPCD an air quality mitigation fee that is estimated to be $531,900. The air quality mitigation fee will be used by SJVAPCD to fund programs to reduce emissions in the southern region of the district. Implementation of the VERP is intended to fully offset the projects projected emissions of specified pollutants (NO[x], ROG, PM[10], CO).

The project was further modified by amendment of the specific plan to include a limitation on total square footage for both industrial and commercial uses and to place square foot and air emissions limitations on some stationary uses. Also, an emissions cap of 54.23 tons per year of ROG, 99 tons per year of NO[x], 110 tons per year of CO, 8.64 tons per year of PM[10], and 3.0 tons per year of 1O[x] was placed on the project.

To remedy the deficiencies in the original EIR, respondents developed and circulated a document entitled Draft Environmental Impact Report Supplemental Analysis to replace the defective portions of the original EIR (the supplemental analysis). Comments were received and responses were prepared.^[1]

The supplemental analysis assessed the projects air quality effects based on a worst-case build-out of the project, with and without the VERP in place. It assumed occupancy of the project at full build-out by the permitted uses that have the potential for generating the greatest quantity of air emissions with the highest health risk potential. Numerous air quality mitigation measures were recommended to reduce the anticipated adverse air quality impacts of the project. Although the VERP is a mandatory project component and SJVAPCD is contractually obligated to fully offset project emissions with off-site reductions, the supplemental analysis explained that uncertainty remains as to the actual details of the final amount of reductions and sources removed from the basin inventory. Therefore, it determined that, after mitigation, the project will cause significant and unavoidable adverse impacts on air quality.

On November 8, 2005, County approved the project, certified the revised EIR, made new factual findings, and adopted the statement of overriding considerations. It adopted the specific plan and the mitigation monitoring plan.

On November 30, 2005, respondents filed a Joint Return to Peremptory Writ of Mandate. Appellants opposed the joint return. After hearing on March 24, 2006, the court ordered the writ of mandate discharged.

This appeal followed. Appellants raise two challenges to the adequacy of the revised EIR and to the sufficiency of the evidence supporting the statement of overriding considerations and associated factual findings. First, they argue that the revised EIR failed to identify and analyze adverse impacts on air quality that might remain after implementation of the VERP and to assess whether any additional mitigation measures could reduce or ameliorate such possible residual adverse air quality impacts. Second, they contend that the revised EIR failed to identify and analyze possible adverse environmental effects resulting from designation of a portion of the project as an FTZ. Neither of these contentions is persuasive. We will affirm the order discharging the writ of mandate.

DISCUSSION

I. Standard of Review

Background information concerning CEQA (codified at Public Resources Code section 21000 et seq.), the state CEQA guidelines (codified at title 14 of the California Code of Regulations section 15000 et seq.) and the applicable standard of review were set forth in detail by this court in Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1197-1198 (Bakersfield).^[2]

Appellate courts review challenges to CEQA compliance de novo. (Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1375-1376; National Parks and Conservation Assn v. County of Riverside (1999) 71 Cal.App.4th 1341, 1352.)

In reviewing an agencys determination under CEQA, a court must determine whether the agency prejudicially abused its discretion. ( 21168.5.) Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination is not supported by substantial evidence. (Dry Creek Citizens Coalition v. County of Tulare (1999) 70 Cal.App.4th 20, 25-26.) The absence of information in an EIR does not per se constitute a prejudicial abuse of discretion. Rather, a prejudicial abuse of discretion only occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process. (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712 (Kings County).)

When assessing the legal sufficiency of an EIR, the reviewing court focuses on adequacy, completeness and a good faith effort at full disclosure. (Association of Irritated Residents v. County of Madera(2003) 107 Cal.App.4th 1383, 1390 (Irritated Residents).) A courts function is not to determine whether the EIRs ultimate conclusions are correct but only whether they are supported by substantial evidence in the record and whether the EIR is sufficient as an information document. (Id. at p. 1391.) CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not mandate perfection, nor does it require an analysis to be exhaustive. (Kings County, supra, 221 Cal.App.3d at p. 712.) Rather, analysis of possible adverse environmental effects will be judged in light of what was reasonably feasible. (Irritated Residents, supra, 107 Cal.App.4th at pp. 1390-1391.)

II. The revised EIR adequately analyzed the projects adverse impacts on air quality; the finding that all feasible air quality mitigation measures were imposed and the statement of overriding considerations are supported by substantial evidence.

A. The VERP was adequately analyzed.

i. Facts

Although theVERP is a required design feature of the project, the supplemental analysis studied the projects likely air quality effects with and without implementation of the VERP. It assumed the worst-case uses at full project build-out. Modeling was conducted to estimate ambient concentrations from the stationary sources. The emissions used in the modeling analysis represent the worst-case potential emissions that would result from the project. The supplemental analysis calculated the total unmitigated stationary, area and vehicle emissions. The results of this analysis were presented in table format. The supplemental analysis concluded that, without implementation of the VERP, the project would increase specified criteria pollutant emissions (ROG, NO[x] and PM[10]) and would exceed SJVAPCDs mass emissions thresholds as well as the Kern County adopted threshold for the San Joaquin Valley air basin.

The supplemental analysis described the VERP, as follows:

In order to minimize the potential air impacts from the proposed Specific Plan, [Tejon] has entered into an agreement with [SJVAPCD] to implement a voluntary emissions reduction program. This program was established by contract between [Tejon] and [SJVAPCD] to reduce the incremental emissions for NO[x], ROG, and PM[10] to a level that would avoid significant air quality project impacts. It includes a number of design features that have been incorporated into the project to offset emissions from both construction and operation of the proposed uses on the project as well as traffic generated by the project. [Tejon] took draft mitigation measures from the Supplemental Analysis and incorporated them into their contract with the [SJVAPCD]. In addition, two design features are included in the Specific Plan project description, this [VERP] and an early implementation of the No Burning Policy for agricultural waste on Tejon Ranch property.

In addition, [Tejon] is required by the contract to contribute to the [SJVAPCD] an Air Quality Mitigation Fee ($531,900), which the [SJVAPCD] will use to reduce emissions in the Southern Region of the [SJVAPCD], within or near the City of Bakersfield, so that the projects impacts are fully offset. There are provisions in the contract for reducing the fee (less administrative costs) if not all the funds are necessary to fully offset the projects impacts, and to increase the payment if the agreed-upon sum is insufficient to fully offset the project^[]s impacts.

The contract requires the [SJVAPCD] to use the fee exclusively to establish and implement specific programs that create contemporaneous air quality benefits within the District, with final offset projects to be selected by the [SJVAPCD] from candidate programs including, but not limited to, Heavy-duty Engine Retrofit/Replacement and Agricultural Engine Replacement, other measures set forth in the attainment demonstration plans, emission reduction candidates submitted by [Tejon], and any other program deemed by the [SJVAPCD] as appropriate to reduce the emissions of air contaminants in the San Joaquin Valley Air Basin that will provide a localized air quality benefit.

As part of its analysis of the VERPs potentially ameliorative air quality effects, the supplemental analysis stated:

[]  [The VERP], when fully formulated and implemented, is expected to reduce the projects contribution of indirect emissions to a level that would be considered as no net increase over the baseline conditions without the project. This reduction would also reduce any associated health effects that might result from the projects contribution of [specified pollutants]. The potential health effects are fully described in Section 4.3.4 but generally range from severe respiratory ailments, as well as cardiovascular disease, impairment of mental abilities, cancer and in high concentrations of certain pollutants, death. These effects would not occur or would be reduced if the design features, as proposed by the developer and SJVAPCD were implemented as expected. There is, however, uncertainty as to the actual details of the final amount of reductions and sources removed from the basin inventory. CEQA requires full disclosure to the public and the decision makers of the potential consequences and environmental impacts of project implementation. As substantial evidence has not been provided for the record of all the details of implementation, beyond a signed legal contract between Tejon Ranch and the SJVAPCD Board, for the emissions reduction program, it remains unclear for the record. While all feasible and reasonable mitigation has been imposed on the project, due to this uncertainty and the projects exceedance of thresholds of significance, the project^[]s impacts [sic] on air quality and associated health effects areconsidered, after mitigation, to be significant and unavoidable. [Italics added; original boldface.]

SJVAPCD submitted a comment letter. Therein, it stated that it concurred with the estimation of emissions in the supplemental analysis. Also, it agreed that the mitigation measures identified in the supplemental analysis (mitigation measures AQ-1 through AQ-11) constitute all feasible measures to reduce air impacts and that they should be implemented to the extent specified in the DEIR Supplemental Analysis. Furthermore, implementing an air mitigation agreement for off-site reductions with the [SJVAPCD] would reduce air quality impacts significantly, resulting in no net increase in PM10, PM10 precursor and ozone precursor emissions from the project. SJVAPCD concluded that it believed the supplemental analysis rectified the deficiencies in the air quality analysis that were identified in the writ of mandate.

Appellant Center on Race, Poverty and the Environment submitted a comment letter stating, in relevant part, that because the County admits that there is uncertainty as to the actual details of the final amount of reductions and sources removed from the basin inventory. [T]he effect [of the VERP] is speculative and does not provide assurance that indirect emission[s] will be mitigated fully.

The response to this comment states: The [VERP] is a contract that binds the SJVAPCD to reduce specific amounts of emissions such that there is no net increase over baseline conditions. The methods by which SJVAPCD may cho[o]se to do this are deliberately flexible, but the program provides a performance standard that the air district is contractually obligated to meet. Then, the response states that [e]xamples of the types and effectiveness of various methods that may be considered are included in [a document that is included as Exhibit A] Methods to Find the Cost Effectiveness of Funding Air Quality Projects (2002 Editions, California Air Resources Board and Caltrans) . The response also contains a table generated from this document consisting of nine possible offset projects and the annual reduction per year projected to result from implementation of each possible offset project.

The response to this comment acknowledges that [t]he comment is correct that there is uncertainty as to the actual details of the final amount of reductions for indirect sources and sources removed from the air basin inventory through [the VERP]. Details of implementation beyond a signed legal contract, remain unclear for the record. Also, [t]he fact that the [VERP] is innovative and untested is the main reason that the Supplemental Analysis concluded that a significant and unavoidable impact to air quality after mitigation would occur. Kern County has also included additional mitigation measures for air quality (Mitigation Measures AQ-1 through AQ-11).

Both Center for Race, Poverty and the Environment and the Center for Biological Diversity commented that the uncertainty regarding the actual effectiveness of the VERP precludes a determination that all feasible and reasonable air quality mitigation has been imposed on the project.

The response to these comments states that the air quality studies analyzed the project with and without the VERP project component. The VERP does not preclude County from requiring mitigation measures to reduce air quality impacts be imposed on the project. The supplemental analysis includes mitigation measures for air quality (mitigation measures AQ-1 through AQ-11) and the SJVAPCD commented that these mitigation measures constitute all feasible measures to reduce air quality impacts. Also, the supplemental analysis recommended that the County find that the project will cause a significant and unavoidable impact to air quality.

County adopted all of the air quality mitigation measures recommended in the supplemental analysis.

ii. Analysis

Appellants assert that County violated CEQA by adopting a statement of overriding considerations without first quantifying the air quality impacts that could result if the VERP is unsuccessful or is only partially successful, and then analyzing whether additional feasible mitigation measures could ameliorate such possible residual impacts. Based on this premise, appellants contend that the record lacks substantial evidence demonstrating that the residual impacts due to the uncertainty in the implementation of the [VERP] are in fact unavoidable. This failure to identify possible residual impacts and to assess the availability and feasibility of additional mitigation measures is claimed to render the EIR inadequate as an informational document and to have precluded the evidentiary balancing of risk versus benefit that is necessary to support a statement of overriding consideration.^[3] We reject this argument because appellants have strained CEQAs disclosure and evidentiary requirements past reasonableness.

As we will explain, the revised EIR contains a good faith and reasonably complete discussion of the VERP, including the uncertainties surrounding its implementation and effectiveness. Its refusal to speculate about the specific programs that might be implemented by the SJVAPCD pursuant to the VERP and the likely effectiveness of such programs is sound and does not contravene CEQA or render the revised EIR deficient as an informational document.

County did not fail to obtain and disclose relevant information necessary to understand the environmental effects of the project, including the possible effects of the VERP, which is a required project component (see fn. 3). The revised EIR contains a copy of the Air Quality Mitigation Agreement. The supplemental analysis explains that the VERP contractually obligates the SJVAPCD to create sufficient air quality benefits so that the pollutants generated by the project are fully mitigated. SJVAPCD has flexibility in determining what programs to implement in order to meet its contractual obligation to offset the projected air quality impacts of the project. Methods that may be utilized by SJVAPCD to offset the projects emissions are contained in a document entitled Methods to Find the Cost Effectiveness of Funding Air Quality Projects (2002 Editions, California Air Resources Board and Caltrans). Not only is this document included as an exhibit, but the response to comment E-6 contains a table generated from this document with nine methods and the annual reduction per year that result from implementation of each method.

The revised EIR acknowledges that there are uncertainties in implementation of the VERP. These uncertainties result from the innovative nature of the VERP and from lack of information concerning the exact offsetting programs that will be implemented by SJVAPCD. The revised EIR concluded that because of the uncertainties surrounding the VERPs implementation and effect on the air basin, it could not be relied upon to support a determination that the project would not have adverse effects on air quality. The revised EIR recognized that residual air quality impacts could remain after implementation of the VERP. Because of the uncertainties in the VERP, the revised EIR concluded that the air quality impacts of the project remained significant and unavoidable after mitigation. It reached this conclusion despite the facts that SJVAPCD is contractually obligated to fully offset project emissions and SJVAPCD opined in a comment letter that implementing the VERP will reduce air quality impacts [of the project] significantly, resulting in no net increase in PM10, PM10 precursor, and ozone precursor emissions from the project.

The revised EIR adequately considered the possibility that the VERP will not be successful in offsetting project emissions when it analyzed the projects air quality impacts based on a worst-case scenario at full build-out and recommended mitigation measures based on this worst-case full build-out scenario. By developing and adopting mitigation measures designed to ameliorate the projects worst-case air quality impacts, County necessarily adopted mitigation measures that apply to any remaining residual air quality impacts that would remain if the VERP is unsuccessful or only partially successful.

After reviewing the supplemental analysis, SJVAPCD commented that all feasible air quality mitigation measures had been identified and these measures should be implemented to the extent specified in the DEIR Supplemental Analysis. The VERP was a project component and it was analyzed in the supplemental analysis. Therefore, SJVAPCDs opinion, as expressed in its comment letter, that all feasible mitigation measures had been identified constitutes substantial evidence supporting Countys finding that all feasible air quality mitigation measures had been identified and adopted.

The statement of overriding considerations balanced the benefits of the project against its adverse environmental effects. As the VERP is a required project component, it necessarily was considered in Countys balancing assessment. Appellants argument to the contrary rests on the invalid premise that the VERP is a mitigation measure and not a project component. County identified and analyzed the adverse environmental effects of the project (including adverse air impacts) to the extent reasonably possible and balanced these adverse effects against the project benefits.

Two cases are instructive, although neither case is fully analogous. Towards Responsibility in Planning v. City Council (1988) 200 Cal.App.3d 671 (Towards) rejected a challenge to the sufficiency of detail in an EIRs analysis of sewage treatment for a proposed industrial park. It concluded that water quality is protected by an existing city ordinance and standards. City is not obliged to speculate about effects which might result from violations of its own ordinances or water quality standards set by other agencies. (Id. at p. 680.) Furthermore, it rejected appellants contention that the City should have waited until a five-year water quality study was completed before adopting the EIR and approving the rezonings. The appellate court explained that, [i]t is unnecessary in an EIR to engage in sheer speculation as to future environmental consequences. (Id. at p. 681.)

In Irritated Residents, supra, 107 Cal.App.4th 1383, this court rejected a challenge to the sufficiency of an EIR for a large dairy. Appellants argued that it failed to sufficiently analyze whether the project would have an adverse impact on the kit fox. We rejected this claim, explaining that even though this section of the EIR was brief, it contains sufficient information and analysis to enable the public to discern the analytic route the agency traveled from evidence to action. (Id. at p. 1397.) We also rejected appellants demand that a protocol level study be undertaken, explaining that the responsible agency is not required to conduct every test or to perform all research that is recommended by a commentator. (Id. at p. 1396.)

Likewise here, we similarly conclude that the revised EIRs analysis of the projects air quality impacts, including its treatment of the VERP and feasible mitigation measures, satisfies the informational requirements imposed by CEQA. County was not required to hypothesize about the specific programs that SJVAPCD is likely to implement to satisfy its contractual obligation to offset project emissions. It was not required to theorize about the reductions that will be realized from such hypothetical programs. County was not required to speculate about the VERPs possible degrees of effectiveness or the likelihood that SJVAPCD will fail to satisfy its contractual obligations. (Towards, supra, 200 Cal.App.3d at p. 681.) Finally, County was not required to develop new and additional mitigation measures to account for possible residual air quality impacts. Such residual impacts necessarily will be less than the air quality effects projected at worst-case full build-out of the project. Feasible mitigation measures were developed and adopted to mitigate, to the extent possible, air quality impacts resulting from worst-case full build-out.

The revised EIRs treatment of the VERP contained adequate information and analysis to permit discernment of the analytic route from evidence to action. (Irritated Residents, supra, 107 Cal.App.4th at p. 1397.) Therefore, we conclude that CEQAs informational mandate was satisfied.

B. The possible effects of the FTZ designation were adequately analyzed.

i. Facts

As part of Center for Biological Diversitys comment that the supplemental analysis failed to adequately analyze the projects air quality impacts, it stated that the vehicle fleet mix that was used in the model analysis does not account for the projects anticipated use as an inland port in coordination with the Ports of Los Angeles and Long Beach. This use will affect the mix of trucks that will be used for the project, and the likely miles traveled per truck, altering the model results and the operational vehicle emissions estimates. The [supplemental analysis] should be revised to include modeling based on these assumptions in order to model the potential emissions and truck miles traveled that the project will add.

This comment letter attached a typescript of an article that purportedly appeared in the Los Angeles Times on May 8, 2005. In relevant part, the article states that proponents of the inland port concept believe it will ease recurring logjams in the Southern California seaports by swiftly moving cargo containers from crowded harbor terminals where the boxes commonly sit for days. However, shipping lines and retailers are skeptical about the [inland port] concept, wondering whether it would ease congestion or merely add another step. Furthermore, [i]t doesnt help that there are no examples in the U.S. big enough to serve as a credible model. Barry Hibbard, vice-president of commercial and industrial marketing for Tejon Ranch, said that it is attempting to try to attract everyone in the cargo movement supply chain, to the project. Although the site is relatively far from the seaports and lacks rail service, it is becoming more attractive as the Inland Empire has become crowded with warehouses and distribution centers. Several other communities including Lancaster and Palmdale are considering developing similar inland port designated complexes.

The Sierra Clubs Condor Group commented that the project should also have additional analyses in terms of the newly announced plans to build 500 acres of warehousing to serve as [an FTZ] area.

A detailed response to these comments was prepared. It stated that a total of approximately 510 acres have been designated as an FTZ (333 acres are located at the project site and 177 acres are located at Tejon-West). After generally defining the concept of inland ports, the response explained why the designation of a portion of the project as an FTZ would not result in additional traffic or air quality impacts above those identified for the project in the original EIR and the supplemental analysis:

The designation of [an FTZ] may make the area more attractive for warehousing and manufacturing companies because of the ability to move goods to and from the site more quickly and efficiently. However, there is no evidence provided that this more efficient processing would result in additional traffic or air impacts above those identified for Tejon Industrial Complex West in previous environmental documents or Tejon Industrial Complex East in the 2003 FEIR or the Draft Supplemental Analysis. In both cases, the environmental analyses assumed the projects would attract the maximum amount of permitted uses and operate at 100% capacity. The Tejon Industrial Complex West project was considered in the 2003 FEIR and the Draft Supplemental Analysis as part of the baseline condition. Buildout of Tejon Industrial Complex West was considered in the cumulative analysis of air quality impacts. The amount of truck[] trips to and from Tejon Industrial Complex West was determined by the warehousing and industrial square footage available at buildout.

Truck traffic would not increase on the site with the designation of the area as [an FTZ], because no additional warehousing or industrial space would be added to the project description by the designation. The designation itself, however, could have the consequence of attracting trucks from the Port of Los Angeles that would have originally gone to the Inland Empire via the existing highway network . To the extent that these trucks would be diverted to the [FTZ] at [the project], these trips would now use [I-5], accessing it primarily from Interstate 710. If so, these would be replacement truck trips for the project, not new truck trips and are accounted for in the traffic and air quality studies. Trucks originating from the Port of Oakland would still be utilizing [I-5] as the north-south route as analyzed in the traffic study. These would be no change of impacts.

The response also explained that FTZ designation alone is not likely to result in diversion of trucks from alternate locations to the project. FTZ designation is not likely to be the only cause for a tenant to select the project as opposed to a comparable facility in the Inland Empire. It states:

[FTZs] are being established in most large industrial and warehousing centers, and they already exist in the Inland Empire. So establishing [an FTZ] at [the project] may not, by itself, draw business (and therefore truck trips and emissions) away from the Inland Empire. Instead, a business decision on whether or not to locate at Tejon Industrial Complex would result from a combination of factors, including location, land cost, cost and availability of labor, access, as well as the [FTZ] designation.

Barry Hibbard believes business will be attracted from the Inland Empire because of the lower labor and land costs in Kern County, as well as the FTZ designation. Furthermore, [t]he establishment of the [FTZ] is intended primarily to maintain Tejons competitive position, especially because there are existing [FTZs] at most major warehousing and manufacturing areas, including in the Inland Empire, today.

Hibbard predicts and County assumed that 10 percent of the truck trips traveling to the FTZ designated portion of the project (333 acres) could be diverted from facilities in the Inland Empire. The response stated that up to 458 truck trips per day would result from the warehouse and distribution activities within the FTZ designated portion of the project. The most probable scenario is that 10 percent of these truck trips or 45.8 truck trips per day would be new trips on I-5, having been diverted from facilities in the Inland Empire. The most conservative worst-case case analysis is that all 458 of the truck trips would be diverted from the Inland Empire. The traffic study in the 2003 EIR projected growth on I-5 through 2020 and determined that there was adequate capacity on I-5 to accommodate the project. There is no evidence that the addition of between 45.8 and 458 daily trips diverted from facilities in the Inland Empire to the project via I-5 would cause a degradation of I-5 in light of the projected average daily trips on the freeway in 2020. The growth of traffic on I-5 is included as part of the traffic assumptions in the traffic model used for the 2020 projections.

The response also states that the supplemental analysis air quality analysis considered the possibility of truck trips diverted from facilities in the Inland Empire to the project in the air calculations for the project. These would be replacement trips and they were included in the air calculations, which were made based on a worst-case full build-out scenario. Assuming a worst-case scenario in which 458 truck trips per day were diverted from facilities in the Inland Empire to the project site, there would be 16,717 truck trips per year (assuming the project operated 365 days per year, which is unlikely), which would generate 0.30 tons per year of ROG, 7.25 tons per year of NO[x], 2.78 tons per year of CO, and 0.12 tons per year of PM[10]. Two tables are included in the response setting forth, at increasing 10 percent intervals up to 100 percent, the potential indirect emissions of ROG, NO[x], CO and PM[10] caused by Additional Truck Trips on I-5.

The response also stated that the FTZ designation might actually reduce the number of truck trips and associated mobile source emissions. With the ability to import materials from overseas, move these directly to the [FTZ], use them to manufacture products, and immediately ship them to the Port and overseas again, the turnaround times are improved and the number of empty trucks would be reduced.

ii. Analysis

Appellants argue that the response summarized above states that the operation of the project as an inland port could have air quality and traffic effects beyond those evaluated in the 2003 EIR and the supplemental analysis but the County conclude[d] that no further analysis of the [FTZ] designation is required because the impact is too speculative and the full impacts of buildout of the Project have been considered in any event.

Appellant has mischaracterized Countys response. The response did not simply explain the reasons why it concluded that the FTZ designation alone is not likely to result in an increase in truck trips to the project site. It also explained that the air quality and traffic effects of the project had been considered at full build-out. The FTZ designation could not increase the truck traffic beyond project capacity. Yet, in an abundance of caution, the response also estimated the air and traffic effects resulting from a 10 to 100 percent increase of truck trips diverted from the Inland Empire to the portion of the project designated as an FTZ, based on operation 365 days per year. It compiled tables setting forth the increase in criteria pollutants based on increases in truck traffic to the FTZ designated portion of the project starting from a 10 percent increase and advancing by 10 percentile points up to 100 percent. It explained that I-5 has the capacity to absorb such additional truck trips.

Appellants argue that in analyzing the possible effects of trucks diverted from the Inland Empire, County impermissibly used the ratio method that was discredited by this court in KingsCounty, supra, 221 Cal.App.3d at pages 720-721. Not so. There, the agency concluded that the cumulative impacts resulting from the projects addition of pollutants into a nonattainment basin was insignificant because the basin already was degraded. In contrast, the County in this case did not deny or minimize the traffic or air quality consequences resulting from addition vehicles onto I-5. With respect to air quality effect, the supplemental analysis concluded that the adverse air quality effects of the project were significant and unavoidable. With respect to possible traffic impacts, the County concluded that I-5 has sufficient capacity to absorb the additional truck trips that possibly could be diverted from facilities in the Inland Empire. The growth of traffic on I-5 is included as part of the traffic assumptions in the traffic model used for the 2020 projections and there is no evidence that the addition of between 45.8 and 458 trucks per day would cause a degradation of I-5. The County did not impermissibly use a ratio method to discount the possible effect of adding trips onto the relevant roadways. The revised EIR did not minimize the possible traffic impacts of the FTZ designation on I-5 or any other traffic interchange. Thus, the comparison to KingsCounty fails.

In a footnote, appellants contend that the response inconsistently estimated the amount of square footage and resultant truck trips that could be diverted away from facilities in the Inland Empire. Appellants argue that based on Countys own formula of 0.0001 truck trips per day per building square foot, the estimated additional truck trips due to the FTZ designation are more likely to be in the range of 151.5 trucks per day. The claim is premised on a parenthetical reference in the response to 1.5 million square feet (which is 10 percent of the projects total square footage, not 10 percent of the square feet in the FTZ designated acreage). A reasonable reader would understand from the entirety of the response that County estimates that only the FTZ designated acreage is relevant to its calculations. Indeed, County makes this clear on the following page of the response when it explains that Based on the designation of approximately 333 acres for [the project] as [an FTZ] , up to 458 truck trips per day could result from the warehouse and distribution activities within this 333 acres. In any event, the claimed defect is insignificant because the response stated that up to 458 truck trips per day could result from the warehouse and distribution activities within the 333-acre FTZ zone and acknowledged that [i]f it were assumed that 100% of these truck trips were diverted from the Inland Empire, this would represent the most conservative worst case analysis. The worst-case scenario of 458 truck trips exceeds the 151.5 truck trips per day that appellants argue are likely to be diverted. Thus, the inconsistency pointed out by appellants did not result in understatement of the possible traffic and air quality effects resulting from the FTZ designation. CEQA requires good faith analysis, not perfection. (Kings County, supra, 221 Cal.App.3d at p. 712.)

Accordingly, we conclude that County sufficiently analyzed the FTZ and adequately addressed the issues raised by appellants in their comments. The revised EIRs treatment of the FTZ constitutes a good faith disclosure and analysis of available data and it satisfies CEQAs informational requirements.

DISPOSITION

The order discharging the writ of mandate is affirmed.

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Levy, J.

WE CONCUR:

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Harris, Acting P.J.

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Gomes, J.

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^[1] The supplemental analysis, comments, responses, and portions of the original draft EIR unaffected by the writ of mandate are collectively referenced as the revised EIR.

^[2] Unless otherwise specified, all statutory references are to the Public Resources Code.

^[3] Respondents correctly point out that, at times, appellants erroneously characterize the VERP as mitigation. Although VERPs purpose is to offset project emissions, the VERP has been included into the specific plan as a design feature and is a mandatory project component. It is not a mitigation measure.