Filed 6/12/15 Certified for Publication 7/6/15 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE


CITY OF IRVINE,

    Plaintiff and Appellant,                                      G049527

         v.                                                       (Super. Ct. No. 30-2013-00622921)

COUNTY OF ORANGE et al.,                                          OPINION

    Defendants and Respondents.



                  Appeal from a judgment of the Superior Court of Orange County, Kim
Garlin Dunning, Judge. Affirmed.
                  Rutan & Tucker, Todd O. Litfin, Jeffrey Melching and Ann Levin for
Plaintiff and Appellant.
                  Nicholas S. Chrisos, County Counsel, Jack W. Golden, Chief Assistant
County Counsel and Nicole M. Walsh, Deputy County Counsel for Defendants and
Respondents.
                                       *                  *             *
                                    I. INTRODUCTION
              This is the third effort by the City of Irvine to stop a proposed expansion of
the James A. Musick Jail Facility (the Musick Facility, sometimes called the Musick jail
expansion) to reach this court. In City of Lake Forest et al. v. County of Orange (Dec. 8,
2000, G023884) [nonpub. opn.] (Musick I), the cities of Irvine and Lake Forest
challenged the 1996 certification of an environmental impact report, “EIR 564,”
involving a proposed expansion of the Musick Facility from about 1200 inmates to 7,584
inmates. Four aspects of EIR 564 were targeted in Musick I: (1) the loss of agricultural
land attendant on the change of the facility from an “honor farm” to a relatively large jail
facility; (2) the impact of the project on air quality; (3) the extra burdens on local
government services in the area because of a need for extra police patrols and
ambulances; and (4) the cumulative impact of the project in light of the planned – at the
time – reuse of the adjacent El Toro Marine Air Station (the El Toro Base) as an
international airport. In Musick I this court overturned a trial court decision finding EIR
564 inadequate. We held EIR 564 did indeed adequately disclose the impacts of the
project. The 1996 project, however, did not go forward because the County did not
consider it had the financial resources for it.
              A decade or so later came the Realignment Act of 2011 (see Stats. 2011,
ch. 15, §§ 1, 450) which shifted responsibility for the custodial housing and post-release
supervision of some felons from the state prison system to local jails and probation
departments. (See Wofford v. Superior Court (2014) 230 Cal.App.4th 1023, 1032.)
Concomitant with realignment legislation was passed making it easier for local
government agencies to obtain state funds to build more local jail cells. (See City of
Irvine v. County of Orange (2013) 221 Cal.App.4th 846, 852 (Musick II).) The prospect
of new funding revived the County’s plans for the Musick jail expansion, and the County
applied for state funds for the project. Irvine reacted by challenging the County’s
application for state funding of the expansion without a new EIR, even though the

                                                  2
County, at roughly the same time as the application, had certified a supplemental EIR
(“SEIR 564”) dealing with the project in light of planned intervening changes in
surrounding land uses. (See Musick II, supra, 221 Cal.App.4th at pp. 852-853.) In
Musick II, this court concluded there was no need to prepare an EIR (or other appropriate
environmental impact document) prior to merely applying for funds. (Id. at pp. 863-
865.)
              We now come to Musick III – this case – in which Irvine directly
challenges SEIR 564. The project is still for 7,584 inmates, though there is a minor
reconfiguration of the actual jailhouse to be built. And some land, about 22 acres, that
was going to continue to be farmed back in 1996 has been dropped for open space. There
has been one big intervening change in surrounding land use, which is the scrapping of
the proposed international airport at the former El Toro Base in favor of a “Great Park,”
with some adjacent housing development.
              In Musick III, Irvine presents several challenges to SEIR 564 that basically
center on only two actual environmental effects: impacts on local traffic intersections
and the loss of agricultural land. It turns out the problem of ascertaining the effect of the
project on local traffic is a problem of variable phasing. The project depends on state
funding, and can only proceed as state funding becomes available, but that complicates
the task of gauging the precise marginal interim effects on local traffic on an intersection-
by-intersection basis. Irvine would have us hold that the County was obligated to
calculate year-by-year, intersection-by-intersection, traffic impacts that would take into
account all the various permutations derivable from the variables of project phasing and
nearby residential construction in the Great Park area. That is not required. As we
explain below, the Supreme Court’s opinion in Neighbors for Smart Rail v. Exposition
Metro Line Construction Authority (2013) 57 Cal.4th 439 (Metro Line) demonstrates that
what Irvine did here – two traffic studies using baselines for traffic conditions in 2014
and 2030 – was sufficient. And if not sufficient, not prejudicially insufficient.

                                              3
              As to the loss of agricultural land, the topic is well-trod territory in a county
where there are few orange groves left and the cost of land makes commercial agriculture
largely cost prohibitive. The County had discovered it was even too costly to grow its
own food by 2009, so there is now no actual agriculture at the Musick Facility. Irvine
quibbles with the conclusion of SEIR 564 that it is now virtually impossible to find 65
acres of prime agricultural land in Orange County to replace the 65 acres that used to be
farmed at the Musick Facility. As we explain, SEIR 564 more than adequately
documented that the cost of land near the project site was $2 million per acre in 2012, and
that was prior to the recovery from the Great Recession. (And the County average
exceeds $308,000 per acre.) But agriculture is not competitive if the cost of land exceeds
$60,000. Replacing what used to be farmed at the Musick Facility can’t be done at
anything near a reasonable price.
              All these considerations compel us to the conclusion SEIR 564 is legally
unobjectionable.
                                         II. FACTS
              The Musick Facility consists of about 100 acres of unincorporated land in
Southern Orange County. Figure 5-1 from SEIR 564, reproduced below, taken from part
of the traffic study in the report, nicely encapsulates its location in the county. As the
airstrip markings in the upper left-hand quadrant of Figure 5-1 show, the land is almost
due east of the old El Toro Marine Base (the airstrip markings), which is now the Great
Park area. When the Great Park and surrounding housing is finally built, the Musick
Facility will represent a northeast boundary of Irvine. To the immediate north is hilly
terrain (as indicated by the relative scarcity of street markings), and to the south is the
City of Lake Forest. The numbers on the map represent traffic intersections studied in
SEIR 564.




                                               4
5
               The Musick Facility began in 1964 as an honor farm designed to allow
inmates to work off sentences by doing agricultural work. The farm gave inmates the
chance to do productive work, and at the same time grow food for the County’s main jail
plus other County facilities, such as the Orangewood Children’s Home. Of the 100 acres
at the site, 55 were “prime” farmland, and another 10 were farmable.
               By 1986, all 65 acres were in agricultural use. But the bucolic quality of
the honor farm was destined to change. That year, the County prepared EIR 447 in
relation to what is, in hindsight, a very modest expansion of the facility to accommodate
1,535 inmates by 2000. EIR 447 was never challenged in court. The document disclosed
even then that all 65 acres of agricultural land on the site would eventually be lost to
agriculture.
               The proposed expansion to 7,584 inmates was a product of the mid-1990’s.
EIR 564 was prepared in 1996 in that regard. The document came in at 244 pages. EIR
564 was litigated in Musick I. The main jail facilities contemplated by the expansion
were to consist of three complexes, each with octagonal modular housing components
that would take up most of the 100 acres – save 22 in the southeast corner that might still
be farmed by low-risk inmates. Irvine and Lake Forest challenged EIR 564, and the trial
court found it deficient in four ways: on the loss of agricultural land, air quality,
government services and overall cumulative impact. This court, however, reversed on all
four points: EIR 564 did, indeed, disclose an irreversible net loss of agricultural land.
(At the time, some 33 “prime” acres were still being farmed at the Musick Facility, as we
explained in Musick I). EIR 564 recognized that the project would create additional
nitrous oxide emissions since the project would mean numerous daily trips of about 14
miles, but those would be spread out over a large area. EIR 564 further recognized the
need for extra police patrols, but to the effect the project posed the threat of increased
crime in areas near the jail, we held that is the sort of socioeconomic impact not covered
by CEQA. And it sufficiently analyzed the project in relation to the proposed reuse of

                                              6
the El Toro Base as an airport. Meanwhile, during the pendency of the appeal, the
County recirculated newly revised sections of EIR 564 dealing with the loss of
agricultural land.
              This court reversed the trial court’s findings as to the inadequacy of EIR
564 in Musick I, but the project still languished for another 11 years. In the meantime,
voters in Orange County rejected the use of El Toro Base as an airport in favor of the use
of the land as a “Great Park.” (See Schroeder v. Irvine City Council (2002) 97
Cal.App.4th 174, 180.)
              So readers can get a sense of proportion between the Musick Facility
expansion and the Great Park project, we reproduce Figure 3-6, from the section of SEIR
564 which discusses surrounding land uses, including the Great Park development:




                                             7
                (Readers should note that Figure 3-6 is a picture of Irvine’s proposals for
the Great Park area in 2002. Since then there have been some changes. We reproduce
that figure because it graphically illustrates the size relationship of the Musick Facility to
the Great Park area.)
                With or without the Great Park, the Musick jail expansion project did not
go forward. Then, as we explained in Musick II, realignment came, and with it the
prospect of state funding. Though not directly discussed, the litigation before us now was
adumbrated in Musick II, where we noted that in August 2012, in the wake of its
application for realignment funds, the County released a supplement to EIR 564, SEIR
564. SEIR 564 takes up 1,455 pages by itself, and its basic focus is the changes since
EIR 564. The County certified SEIR 564 in December 2012, prompting Irvine to file this
lawsuit, which was pending at the time the appeal in Musick II was decided. Since
Musick II dealt with the argument that some sort of EIR or other “CEQA document”1 was
required prior to the County’s application for funding, we may now pick up the story
where Musick II left off.
                While the 2012 SEIR 564 envisions the same expansion to 7,584 inmates as
did 1996’s EIR 564, the new plan proposes a large H-shaped building in the middle of the
100 acres, with a series of smaller auxiliary buildings on the periphery of the H building,
with open-space areas where EIR 564 retained 22 acres for inmate farming. Why no
agriculture? The County’s inmate agricultural programs at the Musick Facility were
discontinued by 2009 as a result of “budget constraints,” and SEIR 564 notes that since
2000, administrative and personnel costs had significantly eaten into whatever savings
was being achieved from inmates growing County food. SEIR 564 spends 10 pages
discussing 7 possible mitigation measures for the loss of the agricultural land (about
which more in part III).

        1       CEQA is also known as the California Environmental Quality Act, Public Resources Code section
21000 et seq.


                                                     8
              Irvine filed this action seeking a writ of mandate to invalidate SEIR 564 in
January 2013. The trial court rejected Irvine’s arguments, finding:
              (1) The changes in the project since EIR 564 (including ceasing all
agricultural operations and changing three complexes to one big one) were nicely laid out
in a summary of changed items in SEIR 564, and these hardly envisioned a new project
requiring a brand new EIR.
              (2) The County’s responses to Irvine’s formal comments on SEIR 564
were adequate and certainly proportional to their significance.
              (3) The traffic study was adequate.
              (4) The examination of the untenability of the mitigation measures for the
loss of the farming operation was itself sufficient.
              A formal judgment denying Irvine’s requested writ was filed November 8,
2013, notice of entry of that judgment was filed November 13, 2013, and Irvine filed its
notice of appeal as of January 10, 2014.
                                          III. DISCUSSION
              In litigation attacking an EIR, the ultimate question is whether the
certification of the document was a prejudicial abuse of discretion. (Pub. Resources
Code, § 21168.5; e.g., City of Marina v. Board of Trustees of the California State
University (2006) 39 Cal.4th 341, 355; San Joaquin Raptor Rescue Center v. County of
Merced (2007) 149 Cal.App.4th 645, 672 [shifting project description meant public and
decisionmakers “were not adequately informed about the full scope and magnitude” of
the project and therefore certification was prejudicial abuse of discretion].2) Abuse of
discretion is statutorily defined as either not proceeding in a “manner required by law” or
a “determination or decision [] not supported by substantial evidence.” (§ 21168.5, e.g.,
Defend the Bay v. City of Irvine (2004) 119 Cal.App.4th 1261, 1265 [“We review CEQA


       2      All undesignated statutory references in this opinion are to the Public Resources Code.


                                                     9
decisions to determine if they are supported by substantial evidence in the record as a
whole (§ 21168), and whether the agency abused its discretion by failing to proceed in a
manner required by law.”].)
              As noted above, Irvine has presented its formal challenge to SEIR 564 by
way of four main arguments: It shouldn’t have been a “supplemental” EIR at all, the
County’s responses to certain of Irvine’s “comments” were inadequate, it didn’t properly
account for intervening effects on local traffic in the period prior to completion, and it
inadequately demonstrated that the loss of agricultural land as part of the project could
not be mitigated.
              In terms of sheer space, Irvine’s main focus is on its second argument, the
asserted inadequacy of the County’s responses to Irvine’s comments on draft SEIR 564.
However, we are going to consider that issue last because of the interrelationship between
a lead agency’s responses to comments and the way an EIR treats the merits of various
environmental issues. For example, in Friends of the Eel River v. Sonoma County Water
Agency (2003) 108 Cal.App.4th 859, 879 (Eel River), the court observed that a response
to a comment was adequate where the response referred to a more extensive discussion of
the topic in the EIR itself. To the same effect is Eureka Citizens for Responsible
Government v. City of Eureka (2007) 147 Cal.App.4th 357, 378 (Eureka Citizens)
[“Satisfactory responses to comments may also be provided by reference to the EIR
itself.”].) Put another way, sometimes one can better understand the adequacy of an
agency’s response to a comment by first understanding what an EIR already says about
the topic covered by that comment.
A. “Supplemental” Versus “Subsequent”
              Irvine argues a “supplemental” EIR was not good enough; the County
should have begun anew with a “subsequent” EIR. There is an immediate anomaly to be
recognized in the County’s position here: EIR 564 in 1996 went only 244 pages. SEIR –
a supposed “supplement” – goes 1455 pages, or is about six times heftier. Some

                                             10
“supplement.” It’s longer than the first edition of War and Peace in the original Russian
(1225 pages). But it has more pictures.
                 Interestingly, the statute on point, section 21166,3 treats supplemental and
subsequent EIRs in the same category: If there’s already an EIR, and there are no
“substantial” changes to the project, or surrounding circumstances, or new information
since that existing EIR, there is no need to prepare either a subsequent or supplemental
EIR. One must go to regulations, often referred to as “CEQA Guidelines” prepared by
the state Resources Agency,4 to find the distinction between “supplemental” and
“subsequent” EIRs.
                 CEQA Guideline 15162 covers “subsequent” EIRs.5 CEQA Guideline
15163 covers “supplemental” EIRs. The basic rule is that whenever there is an already
approved EIR and a “substantial” change in either the project, the surrounding
circumstances, or new information that couldn’t have been discovered when the first EIR
was prepared, either a “subsequent” or a “supplemental” EIR must be prepared. The only
difference is that, as explained in CEQA Guideline 15163, if there has been a substantial
change, which would otherwise require a “subsequent” EIR under CEQA Guideline

        3         Which we reproduce now:
                  “When an environmental impact report has been prepared for a project pursuant to this division,
no subsequent or supplemental environmental impact report shall be required by the lead agency or by any
responsible agency, unless one or more of the following events occurs:
                  “(a) Substantial changes are proposed in the project which will require major revisions of the
environmental impact report.
                  “(b) Substantial changes occur with respect to the circumstances under which the project is being
undertaken which will require major revisions in the environmental impact report.
                  “(c) New information, which was not known and could not have been known at the time the
environmental impact report was certified as complete, becomes available.”
         4        See Communities For A Better Environment v. South Coast Air Quality Management Dist. (2010)
48 Cal.4th 310, 319, footnote 4 [“The regulations guiding application of CEQA, found in title 14 of the California
Code of Regulations, section 15000 et seq., are often, and will sometimes be here, referred to as the CEQA
Guidelines.”].
                  We will refer to all regulations found in title 14 of the Code of Regulations by their “CEQA
Guideline” section number.
         5        Subdivision (b) of which provides: “If changes to a project or its circumstances occur or new
information becomes available after adoption of a negative declaration, the lead agency shall prepare a subsequent
EIR if required under subdivision (a). Otherwise the lead agency shall determine whether to prepare a subsequent
negative declaration, an addendum, or no further documentation.”


                                                        11
15162, but “[o]nly minor additions or changes would be necessary to make the previous
EIR adequate to apply to the project in the changed situation,” then the lead agency has
the discretion (the key phrase is “may choose”) to prepare a “supplemental” EIR that
“need contain only the information necessary to make the previous EIR adequate for the
project as revised.” Regardless, the supplemental EIR must still be “given the same kind
of notice and public review” as an initial draft EIR.6
                  Irvine cites us to no case that actually holds that a lead agency’s choice to
prepare a “supplemental” EIR, when a “subsequent” EIR might arguably have been more
appropriate, was fatal to the “supplemental” EIR. The case Irvine most relies on its
opening brief, Save Our Peninsula Committee v. Monterey County Bd. of Supervisors
(2001) 87 Cal.App.4th 99 (Save Peninsula), was a case that found a supplemental EIR
inadequate on its own terms because it failed to establish a realistic “baseline” of water
usage to compare with that contemplated by a 100-plus unit residential development in an
area known for water shortages. (See id. at pp. 108-109, 112, 123.) Save Peninsula
shows that a supplemental EIR might fail on its own merits, but it certainly does not
stand for a rule that requires this court to find SEIR 564 legally inadequate merely
because it bears the title “subsequent” instead of “supplement.”




         6         Guideline 15163 provides in its entirety:
                   “(a) The lead or responsible agency may choose to prepare a supplement to an EIR rather than a
subsequent EIR if:
                   “(1) Any of the conditions described in Section 15162 would require the preparation of a
subsequent EIR, and
                   “(2) Only minor additions or changes would be necessary to make the previous EIR adequately
apply to the project in the changed situation.
                   “(b) The supplement to the EIR need contain only the information necessary to make the previous
EIR adequate for the project as revised.
                   “(c) A supplement to an EIR shall be given the same kind of notice and public review as is given
to a draft EIR under Section 15087.
                   “(d) A supplement to an EIR may be circulated by itself without recirculating the previous draft or
final EIR.
                   “(e) When the agency decides whether to approve the project, the decision-making body shall
consider the previous EIR as revised by the supplemental EIR. A finding under Section 15091 shall be made for
each significant effect shown in the previous EIR as revised.”


                                                         12
                  Two points are salient, though. One, as CEQA Guideline 15162’s “may
choose” language shows, the choice to proceed by way of a “supplemental” as distinct
from a “subsequent” EIR is a discretionary one with the lead agency, thus tested under a
reasonableness standard. Two, as shown recently by Citizens for a Sustainable Treasure
Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, 1047-1048
(Treasure Island), the appropriate judicial approach is to look to the substance of the EIR,
not its nominal title.7 (Accord, California Oak Foundation v. Regents of University of
California (2010) 188 Cal.App.4th 227, 271, fn. 25 [“The fact that this EIR is labeled a
‘project’ rather than a ‘program’ EIR matters little for purposes of this inquiry. ‘The
level of specificity of an EIR is determined by the nature of the project and the “rule of
reason” . . . rather than any semantic label accorded to the EIR.’”].)
                  With these thoughts in mind, we conclude the County did not abuse its
discretion in choosing to use EIR 564 as a platform for SEIR 564 instead of beginning
from – so to speak – the ground up. Actually, the word “platform” doesn’t do the sequel
to EIR 564 justice. The literary relationship between the two documents is more like
introductory novella to large novel. EIR 564 is The Hobbit to SEIR 564’s Lord of the
Rings.
                  The actual construction project – expansion of the Musick Facility to 7,584
beds – remains the same. The land affected remains the same. The building
configuration is close to the same (a single “H” building instead of three complexes with
octagonal modules), as are some miscellaneous support buildings and parking structures.
EIR 564’s plans for a multilevel parking structure were dropped for a less-intensive at-
grade design. It appears the biggest change to the actual project qua project as envisioned

         7         Here is the relevant passage: “CSTI’s contention that the EIR was improperly prepared as a
‘project EIR’ instead of a ‘program EIR’ improperly focuses on the EIR’s title rather than its substance. There are
many different names that have been applied to EIRs. For example, there are project EIRs . . . program EIRs . . .
staged EIRs . . . master EIRs . . . subsequent EIRs . . . focused EIRs . . . and supplemental EIRs . . . . [¶] For this
reason, courts strive to avoid attaching too much significance to titles in ascertaining whether a legally adequate
EIR has been prepared for a particular project.” (Italics added.)


                                                         13
in EIR 564 in 1996 is dropping 22 acres from direct agricultural use and instead devoting
them to open space.
              As for surrounding circumstances, there is of course the substitution of a
park and some surrounding residential development for a busy airport. However, no less
than 89 pages of SEIR 564 – to put that in perspective, more than a third of the original
EIR 564 – are devoted to post-2000 changes in the area, including projections of traffic
patterns that, trading an airport for a park and residences, would obviously be different
than they might have been in 2000. We see no abuse of discretion in the County’s
perception that the change of use of a discrete area of nearby land should only merit a
“supplemental” treatment, especially when one realizes the Great Park represents a far
less intensive land use than the international airport anticipated when EIR 564 was
prepared.
B. Traffic Studies
              SEIR 564 includes a traffic study projecting morning and evening rush hour
effects of the project – called “LOS” or “levels of service” – on 24 local intersections in
the year 2014 (the “interim year”) and in the year 2030 (projected completion of all 7,854
beds). Irvine presents its argument regarding SEIR 564’s analysis of impacts on local
traffic by focusing on the problem of what SEIR 564 called the “interim year,” i.e., 2014.
Actually, events have overtaken the word “interim.” SEIR 564 was finalized in 2012.
The year 2014 functions in SEIR 564 as a de facto baseline of existing conditions.
              If we understand Irvine’s argument correctly, it goes like this: Irvine first
asserts that SEIR 564 is inconsistent in its descriptions of project phasing. In one place,
the document recounts the various construction activities that will constitute “Phase I” of
the expansion, and those activities entail the construction of “up to” 1,024 beds by 2018.
Then Irvine notes that there is evidence in the administrative record (not in SEIR 564 but
in the form of an exhibit to a County staff report giving a from December 2011 giving a
timetable for the project) to the effect that County knew construction of Phase I wouldn’t

                                             14
even begin until 2015. But, says Irvine, SEIR 564 still uses 2014 as an “interim” year in
its studies of traffic and air quality impacts. And further, when Irvine asked for a
comment on these timing discrepancies, the County admitted that the earliest true
“interim” year given delays in the project – that is, when 1,024 beds will have been
added, is now 2018. However, the County didn’t update its traffic analysis, which was
still pegged to 2014. Irvine then cites City of Santee v. County of San Diego (1989) 214
Cal.App.3d 1438 (Santee) [finding EIR’s description fatally uncertain], and concludes
this demonstrates that SEIR 564 is based on a fatally unstable description of the project.
                  The problem with this argument is that it confuses the need for a stable
project description with the task of ascertaining the interim traffic impacts of project
construction as that construction takes place – on a timeline that cannot be predicted with
certainty. No one would dispute the need for an EIR to give decisionmakers and the
public “an accurate, stable and finite project description.”8 But gauging the exact effects
of construction and partial completion of a project on a year-by-year basis when there is
some play in the scheduling is a different matter.
                  Because Santee is the case Irvine relies on most, and because it also
involved a city opposing a county jail in its own backyard, an examination of that case
seems the best way to show the difference between the two matters here. Santee arose
out of a crisis precipitated in the late 1980’s by the closure of a jail facility in one area of
San Diego County, Vista. The county responded by proposing to expand an existing
facility at Las Colinas near the city of Santee. But the expansion project was supposed to
be temporary. It was only going to last seven years. (Santee, supra, 214 Cal.App.3d at p.
1446.) So the EIR totally omitted any environmental impacts after the expected


          8         The phrase first appeared in County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 192-
193 (Inyo). In fact, a stable and accurate description of a project is the “sine qua non” of an EIR. (See id. at p. 193
[first use of expression]; Santee, supra, 214 Cal.App.3d at p. 1454 [quoting Inyo in context of finding EIR
description of project to be fatally unstable]; Treasure Island, supra, 227 Cal.App.4th at p. 1052 [most recent quote
as of this writing].)


                                                          15
termination of the temporary expansion. That omission, said the appellate court, meant
the EIR didn’t really provide a stable description of the project, particularly since there
was some indication the county was going to need the expanded facilities after the seven
years had expired. (Id. at p. 1454.) The EIR had to be redone.
              It is worth noting, though, that the ostensible win for the city in Santee was
pyrrhic. The appellate court recognized that the deficiencies in the EIR all related to
“future activities that the EIR failed to address.” But, since the seven years hadn’t yet
expired, the court held the county could continue to use the “temporary male detention
facility at Las Colinas” while the new EIR was developed. Continued work on the
project would not offend CEQA. (Id. at pp. 1455-1456.)9
              In the present case, however, we have a stable project description. This is
therefore not Santee. Irvine urges a model of CEQA that would require continuously
updated projections of traffic impacts adjusted for any delays in construction in the
project or nearby areas. Ironically, the main case it cites for the need for such updating,
Metro Line, supra, 57 Cal.4th 439, actually illustrates the adequacy of SEIR 564 in this
case.
              Metro Line involved a project that was itself proposed to alleviate traffic,
namely the construction of a Westside Los Angeles light rail line. The EIR for the
project, finalized in 2009, used as its “baseline” to measure environmental effects of the
project the year 2030, when population growth could be assumed to make ambient traffic
and air pollution without the project much worse. (See Metro Line, supra, 57 Cal.4th at
p. 447.) The total omission of existing conditions was error. Existing conditions are the
normal baseline for measuring a project’s effects (id. at p. 448), and using “future
conditions” as the sole baseline is a departure from the norm that requires justification
based on unusual facts and circumstances (id. at pp. 451-452), including circumstances

         9    And in fact there’s a detention facility there still. (See In re G.L. (2014) 222 Cal.App.4th 1153,
1157.)


                                                     16
showing that using existing conditions would be affirmatively misleading, or at the very
least, “without informational value.” (Id. at p. 457.) In Metro Line, using a date 21 years
into the future (2030) as a baseline for an EIR finalized in 2009 could not be justified
because there was no substantial evidence that using existing conditions was either
misleading or without informational value (see id. at pp. 460-463).
              However, the victory for project opponents concerning the omission was
again – shades of Santee – pyrrhic. The high court went on to hold that the EIR’s
exclusive use of future conditions was not prejudicial, because the EIR did include an
extensive analysis of year 2030 effects showing no significant adverse impacts. (Metro
Line, supra, 57 Cal.4th at p. 463.) If the same analyses had been “performed against
existing traffic conditions,” the result would not have been “substantially different.”
(Ibid.) The same could be said for air quality. And since the project would have a
beneficial environmental effect as soon as it started operations by reducing vehicle miles
traveled, using a later baseline “was thus an insubstantial, technical error that cannot be
considered prejudicial.” (Ibid.)
              The present case does not involve the mistake made by the light rail
authority in Metro Line. SEIR 564 presents detailed traffic analyses on levels of service
at area intersections for what is, substantively, a year reflecting existing conditions (2014
for an EIR finalized in 2012) and the year of projected completion (2030). The only
discrepancies to which Irvine points are functions of delays in the project, and those
relate to traffic – by definition a fluid condition – and not the project itself.
              Irvine points to a passage in Metro Line that notes the need of
decisionmakers and the public to know the “short- and medium-term environmental
costs” of achieving a given improvement, rather than just conditions at completion in the
future. (See Metro Line, supra, 57 Cal.4th at p. 455.) But the passage most assuredly
does not require multiple, intersection-by-intersection, studies of traffic impacts on all
nearby intersections on a year-by-year basis, plugging the multiple variables of not only

                                               17
the completion of the project itself, but of any nearby projects.10 The context of the
discussion in Metro Line was part of a demonstration that existing conditions should be
the default baseline for measuring environmental effects. The point was: An EIR cannot
omit the impact on current conditions because the public and decisionmakers are entitled
to know the interim environmental costs of achieving a desirable improvement, not
merely the costs at the end of the road. Or, as Justice Liu put it in his separate concurring
and dissenting opinion, the public and decisionmakers are entitled to know if “the short-
term pain is worth the long-term gain” promised by the project. (Id. at p. 480 (conc. &
dis. opn. of Liu, J.).) Here, the information for drawing that conclusion was provided.
                 Finally, even if Irvine were correct, any failure to “update” the traffic
impact studies would, under Metro Line, be non-prejudicial. In Metro Line, the analyses
of projected conditions in the year 2030 alone established that using current conditions as
a baseline would not have yielded substantially different results. Here, the public and
decisionmakers were given not just one, but two sets of comparison years – the beginning
of the project (2014) and the completion (2030). And when one compares both of them,
Metro Line’s point about harmlessness applies all the more. The analysis for 2030, in
fact, was able to predict slightly less traffic congestion over 2014, given certain
improvements in local traffic conditions projected to be completed in the interim. If the
omission of the use of existing conditions in Metro Line was an “insubstantial, technical
error,” any discrepancies here resulting from delay in start dates also qualify as
insubstantial and technical errors.
C. Loss of Agricultural Land
                 SEIR 564 discusses seven possible mitigation measures for the loss of the
agricultural land represented by the Musick jail expansion. None of the proffered
measures were found feasible, and Irvine challenges SEIR 564’s findings as to three of

          10        For example, suppose an already approved residential housing development in the Great Park
areas is itself delayed.


                                                        18
those findings: (1) the purchase of conservation easements on existing agricultural land
to prevent it from being used in the future for nonagricultural purposes, (2) a transfer of
development rights program (sometimes called TDRs), and (3) a “right to farm”
ordinance.
              Preliminarily, we should note that the rejection of the most obvious
mitigation measure to preserve land for agricultural use – namely, simply going out and
buying land to replace what has been lost to agriculture – is not challenged. That’s
important, because, as a response to Irvine’s various objections on the agricultural
mitigation issue made clear, land in the vicinity of the project was going for $2 million
three years ago (in 2012, the year SEIR 564 was finalized). The obvious point, which is
minimized in Irvine’s briefing, is that the cost of raw land in Orange County is
exorbitant, so finding 65 acres, or 55, or even 22 acres to replace farmland that, up to
2009, was farmed by inmates trying to work off jail time, is cost-prohibitive. The
proposed mitigation measures must necessarily be viewed in the light of that overarching
fact.
              Conservation easements: Even in the Central Valley, there are times when
agricultural conservation easements or “ACEs” are not feasible, as recently shown in
Friends of King River v. County of Fresno (2014) 232 Cal.App.4th 105 (Friends of King
River). That case involved a proposed aggregate mine of some 898 acres east of Fresno.
The EIR recognized that about 600 acres of farmland would be permanently lost, even
given a 100-year lifespan for the project. (See id. at p. 121.) While the EIR did
recommend some minor mitigation measures (maintaining existing agricultural use
outside the “surface disturbance boundary” for the 100-year life of the project and
reclaiming used up “mine cells”), the EIR rejected ACEs because they would not actually
affect the amount of farmland permanently lost. (Id. at pp. 122-123.) The reason, if one
thinks about it, is obvious: An ACE is predicated on the idea that some land now in
agricultural use will remain in agricultural use for the indefinite future because of the

                                             19
ACE. And, while an ACE might, in theory, be placed on land currently in non-
agricultural use – say, just barren desert – such a placement is not likely to replace
permanently lost agricultural land because of the likelihood that if the land were suitable
for agriculture, it would already be in agricultural use or already have been converted to
some more intensive use than agriculture, such as a housing tract.
              And if, as in Friends of King River, ACEs do not replace lost farmland in
the Central Valley, they certainly are not going to do so in Orange County. In Orange
County, the sheer astronomical expense of land supports the finding of SEIR 564 that the
purchase of ACEs is a non-starter. Owners of what little agricultural land is left know the
value of that land if developed. The reasonable inference is that the purchase of a
conservation easement means paying a large percentage of the market value of the land,
so much so that this mitigation measure would be the functional equivalent of trying to
buy land not already in agricultural use and convert it to agricultural use.
              Further, as pointed out elsewhere in SEIR 564 and in the County’s response
to questions on the point, converting land not currently in agricultural use to agricultural
use carries its own adverse environmental effects, such as the creation of dust, odors,
pesticide use and machinery noise.
              Nor does the idea work as to existing agricultural land. As SEIR 564 points
out, conservation easements have historically only worked in counties where the general
plan and zoning laws already set aside land for exclusive agricultural use, and Orange
County has no land use designations requiring land to be devoted exclusively to
agricultural purposes.
              TDRs: The TDR approach appears, if anything, to be even less viable. A
TDR is itself conceptually easy to understand: If the law permits, an owner who can
develop a given property trades that right, or parts of that right, to someone who wants to
develop another property. (E.g., Mitsui Fudosan (U.S.A.), Inc. v. County of Los Angeles
(1990) 219 Cal.App.3d 525 (Mitsui) [building-to-parcel ratio could be exceeded by

                                             20
purchasing unused ratios from other parcels in redevelopment district].) The first
problem with TDRs is that it requires a common legal authority that provides for the
transfer, such as the redevelopment district in Mitsui. But the County’s own land
holdings are shrinking, and there is no indication the County has land lying fallow
elsewhere that would be amenable to a TDR arrangement. But even more basic is the
problem that it is the County that possesses the development rights in regard to the
Musick Facility, so one has to ask: What is to be transferred to whom in order to preserve
agricultural land? Any transfer of the County’s rights to develop the Musick Facility
would by definition scuttle the project.
              Right-to-Farm Ordinance: This is the least viable option of all. As noted,
SEIR 564 recognizes that the conversion of current non-agricultural land to agricultural
land will itself entail significant environmental effects, including nuisance suits. Beyond
that, a right-to-farm ordinance is meaningless where no land owner wants to farm. A
response to an Irvine comment revealed the fact that about $60,000 per acre is currently
the break-even point for the economic viability of agricultural land. Using a substantial
evidence standard of review, it is a reasonable inference that no one will want to convert
land that is currently non-agricultural and put it to agricultural use even if they have the
ostensible legal right to do so.
D. Comment and Response
1. Background Law
              We now come to Irvine’s main argument, which is that deficiencies in the
County’s responses to Irvine’s comments on the draft SEIR 564 require a re-do of the
final EIR. The background for this argument is a 13-page, single spaced letter, dated
September 24, 2012, from Sukheee Kang, then Mayor of Irvine, to the County,
containing 88 items. The letter was obviously drafted for the mayor by counsel,
containing as it does a citation to Guideline 15088 and Preservation Action Council v.
City of San Jose (2006) 141 Cal.App.4th 1336 (Preservation Action).

                                             21
                  To call all 88 items “comments” would be a misnomer. Some are mere
argumentative assertions, obviously intended to preserve an issue for litigation.11 Some
are argumentative assertions followed by a demand for a change in the EIR.12 Some are
the functional equivalent of one litigant’s requests for production of documents to
another.13 Some appear to be classic litigation interrogatories.14 And some are actually
genuine questions.15 In this appeal, Irvine focuses on two sets of the County’s responses
to its comments. One set involves the traffic studies and the other the agricultural
mitigation discussion (hence we have discussed those areas already in order to give
readers a better context with which to evaluate the responses). Before we turn to the two
sets, though, some background in regard to CEQA’s coverage of the topic of comment-
and-response is necessary.
                  The statutory authority requiring a lead agency to respond to “comments” is
found in section 21153. The statute is essentially a requirement that lead agencies
consult with other public agencies – including cities that border on the project – about



           11          E.g.: “6. The DSEIR also does not comply with CEQA Guideline 15150(d), which states: ‘where
an agency incorporates information from an EIR that has previously been reviewed through the State Review
System, the State identification number of the incorporated document should be included in the summary or
designation described in subdivision (c).’ That requirement has not been followed throughout the DSEIR.”
           12          E.g., “5. The DSEIR’s protocol for incorporation by references does not comply with CEQA
Guideline 15150. That Guideline states ‘where an EIR or negative declaration uses incorporation by reference, the
incorporated part of the referenced document shall be briefly summarized where possible or briefly described if the
data or information cannot be summarized. The relationship between the incorporated part of the referenced
document in the EIR shall be described.’ The DSEIR does not provide that degree of explanation/summarization.
Please revise the DSEIR to include the required level of detail.”
           13          E.g.: “2. The DSEIR repeatedly states that the Project will result in the long range expansion of
the facility which would result in 7,584 beds. However, the DSEIR is not consistently clear as to whether those beds
will or will not be ‘rated’ as defined in the DSEIR. Because the County has relied upon the number of beds in
determining the forecasted inmate population, and relied on that inmate population in forecasting various impacts
(e.g., traffic), it is important to understand whether 7,584 is the forecasted worst case inmate population, or merely a
‘rated’ bed count. Please provide the requested data and accompanying explanation/analysis.”
           14          E.g.: “33. Please explain the factual basis for your assumption that traffic generation today is the
same as it was in 1996. To the extent your explanation is based on inmate population, please explain (1) the
relationship between inmates and traffic generation, and (2) provide data indicating the number of inmates at the
Musick Honor Farm when the 1996 conditions were ascertained.”
           15          E.g.: “25. Please indicate whether the staffing levels appearing in Table 3.B correspond with 1024
inmates or 512 inmates.”


                                                           22
possible environmental fallout associated with a project.16 The statute was first enacted
as part of CEQA in 1972 (Stats. 1972, ch. 1154), and the first case to discuss the statute
emphasized its main purpose was to gather input from other public agencies. (See
Whitman v. Board of Supervisors (1979) 88 Cal.App.3d 397, 413.17)
                  The text of the statute does not specifically require responses to the
comments. That requirement, rather, derives from the Guidelines promulgated by the
state Resources Agency, and in particular current Guideline 15088.18 Guideline 15088’s



         16        The statute provides in its entirety:
                   “(a) Prior to completing an environmental impact report, every local lead agency shall consult
with, and obtain comments from, each responsible agency, trustee agency, any public agency that has jurisdiction by
law with respect to the project, and any city or county that borders on a city or county within which the project is
located unless otherwise designated annually by agreement between the local lead agency and the city or county,
and may consult with any person who has special expertise with respect to any environmental impact involved. In
the case of a project described in subdivision (c) of Section 21065, the local lead agency shall, upon the request of
the project applicant, provide for early consultation to identify the range of actions, alternatives, mitigation
measures, and significant effects to be analyzed in depth in the environmental impact report. The local lead agency
may consult with persons identified by the project applicant who the applicant believes will be concerned with the
environmental effects of the project and may consult with members of the public who have made written request to
be consulted on the project. A request by the project applicant for early consultation shall be made not later than 30
days after the date that the determination required by Section 21080.1 was made with respect to the project. The
local lead agency may charge and collect a fee from the project applicant in an amount that does not exceed the
actual costs of the consultations.
                   “(b) In the case of a project described in subdivision (a) of Section 21065, the lead agency may
provide for early consultation to identify the range of actions, alternatives, mitigation measures, and significant
effects to be analyzed in depth in the environmental impact report. At the request of the lead agency, the Office of
Planning and Research shall ensure that each responsible agency, and any public agency that has jurisdiction by law
with respect to the project, is notified regarding any early consultation.
                   “(c) A responsible agency or other public agency shall only make substantive comments regarding
those activities involved in a project that are within an area of expertise of the agency or that are required to be
carried out or approved by the agency. Those comments shall be supported by specific documentation.” (Italics
added.)
          17       Here is the relevant passage: “Ideally, all public agencies exercising authority over any natural
resource which conceivably might be affected by a proposed project should be consulted. Likewise, if a city or
county is the site of the project or in an area which may be subjected to major environmental effects from the
projects, it should be consulted. The public agency responsible for the preparation and certification of the final EIR
should seek out those other public agencies who exercise authority over natural resources of whatever nature and
provide those agencies with ample opportunity to voice objection to any proposed project. The appropriate policy
should be one of inclusion, not exclusion, of other public agencies.”
          18       Here is the complete text:
                   “(a) The lead agency shall evaluate comments on environmental issues received from persons who
reviewed the draft EIR and shall prepare a written response. The lead agency shall respond to comments received
during the noticed comment period and any extensions and may respond to late comments.
                   “(b) The lead agency shall provide a written proposed response to a public agency on comments
made by that public agency at least 10 days prior to certifying an environmental impact report.


                                                         23
predecessor, back in the late 1970’s, was Guideline 15146, which, like Guideline 15088
today, required responses to the “significant” environmental points raised in the
“consultation process.” (See People v. County of Kern (1974) 39 Cal.App.3d 830, 841
(Kern County).) A careful reading of Guideline 15088 reveals a general mandate, in
subdivision (a), to prepare a written response to “comments on environmental issues” (we
note subdivision (a) doesn’t say “all” comments, just “comments”). However, there is a
more specific mandate, in subdivision (c), to respond in good faith and in “detail,” to
“significant environmental issues” raised in comments whenever the lead agency’s
position is “at variance” with the comment about the “significant” environmental issue.
(See Browning-Ferris Industries v. City Council (1986) 181 Cal.App.3d 852, 862
[indicating distinction between comments that address significant environmental issues
and those that don’t].)
                  On the other hand, we see nothing in Guideline 15088 that allows project
opponents to use the comment-and-response process to wear down a lead agency, or
delay a project, by the simple expedient of filing an onerous series of demands for
information and setting up a series of hoops for the lead agency to jump through. The
comments of public agencies must not only be “substantive,” but also “within an area of
expertise” of that agency or otherwise involve matters required to be “carried out by the
agency.” (§ 21153, subd. (c).) We note in this regard that, unlike the typical discovery
process in litigation, the recipient of onerous demands for information by a project


                    “(c) The written response shall describe the disposition of significant environmental issues raised
(e.g., revisions to the proposed project to mitigate anticipated impacts or objections). In particular, the major
environmental issues raised when the lead agency’s position is at variance with recommendations and objections
raised in the comments must be addressed in detail giving reasons why specific comments and suggestions were not
accepted. There must be good faith, reasoned analysis in response. Conclusory statements unsupported by factual
information will not suffice.
                    “(d) The response to comments may take the form of a revision to the draft EIR or may be a
separate section in the final EIR. Where the response to comments makes important changes in the information
contained in the text of the draft EIR, the lead agency should either:
                    “(1) Revise the text in the body of the EIR, or
                    “(2) Include marginal notes showing that the information is revised in the response to comments.”
(Italics added.)


                                                          24
opponent has no recourse to the courts for relief (such as a protective order or other legal
device) to prevent the comment-and-response process from being abused by project
opponents.
                 Case law has provided a few oft-repeated principles by which courts may
evaluate the sufficiency of a lead agency’s responses to comments: A response can be
sufficient if it refers to parts of the draft EIR that analyzes the environmental impacts
raised by the comment. (E.g., Paulek v. Department of Water Resources (2014) 231
Cal.App.4th 35, 49 (Paulek); Twain Harte Homeowners Assn. v. County of Tuolumne
(1982) 138 Cal.App.3d 664, 686 (Twain Harte).) A general comment can be adequately
met with a general response. (E.g., Eel River, supra, 108 Cal.App.4th at p. 878.)
Responses need not be exhaustive. (Gilroy Citizens for Responsible Planning v. City of
Gilroy (2006) 140 Cal.App.4th 911, 937 (Gilroy).) And because, ultimately, responses to
comments are part of the EIR itself, their sufficiency should be “viewed in light of what
is reasonably feasible.” (See Twain Harte, supra, 138 Cal.App.3d at p. 686.)
                 The case law dealing with actual examples of adequate and inadequate
responses, however, can be a bit daunting. There is, alas, a know-it-when-I-see-it quality
to the discussion of the adequacy of individual responses to individual questions. 19
                 The earliest case to confront the question of the adequacy of a lead
agency’s responses was Kern County, supra, 39 Cal.App.3d 830. Kern County was a
case involving something now practically unheard of – an EIR that went only nine pages.
(Id. at p. 835.) Because Kern County and another relatively early case, Cleary v. County
of Stanislaus (1981) 118 Cal.App.3d 348, are the centerpieces of Irvine’s appeal on the
comment-and-response issue, we discuss them now in detail.



         19       Indeed, if we were to apply Irvine’s approach to the sufficiency of responses analyzed in the
appellate opinions in this area – opinions going both ways – one wonders how many opinions would themselves be
held inadequate because their discussion of the comment-and-response issue on appeal was insufficiently “detailed”
and “non-conclusory.”


                                                       25
              Kern County involved a large (275 acres) subdivision project in a national
forest at fairly high altitude (5,300 feet). The Attorney General’s office objected to the
subdivision, in part because of serious concerns about the availability of water and the
impact of the project on ground water pollution, plus the location of the subdivision:
right over the San Andreas Fault. (See Kern County, supra, 39 Cal.App.3d at p. 836.)
The Attorney General’s comments about water and pollution were addressed in a five-
page addendum and a two-page summary to the nine-page draft EIR, but neither
“contain[ed] a response” by the lead agency to the “significant environmental issues
raised” or addressed “in any detail” why the various comments were not accepted or why
other concerns override those objections. (Ibid.) The appellate court made the point that
the necessity of comments was to prevent “‘stubborn problems or serious criticism’”
concerning a project from “‘being swept under the rug.”‘ (Id. at p. 841, quoting Silva v.
Lynn (1st Cir. 1973) 482 F.2d 1282, 1285.) Reasoning that “[o]nly by requiring the
County to fully comply with the letter of the law can a subversion of the important policy
purposes of CEQA be avoided,” the appellate court held that the “failure to respond with
specificity in the final EIR to the comments and objections in the draft EIR renders the
final EIR fatally defective.” (Id. at p. 842.)
              About a decade later, another Central Valley case, Cleary, took Kern
County as its inspiration, so much so that Cleary included a large swath of text from Kern
County as the engine of its discussion on the comment-and-response issue. (See Cleary,
supra, 118 Cal.App.3d at p. 356.) Cleary involved a commercial and recreational
development project (pitch and putt golf, picnic area, gift shop, etcetera) over 31 acres,
but several public agencies, including the state Air Resources Board, commented the
EIR’s discussion of air quality was “inadequate (indeed nonexistent).” (Id. at p. 357,
italics added.) The County’s response was a single paragraph saying air quality wasn’t a
concern because the increase in traffic from the project was insignificant. (Id. at p. 358.)
Because that response was “nonspecific and general,” it was inadequate. (Ibid.)

                                                 26
              An additional comment-and-response problem in Cleary was the state Food
and Agriculture department’s concern about the effect the project would have on
surrounding agricultural land, and in particular how the project might affect the property
values of nearby landowners who either had, or had not, committed their lands under long
term contracts to continued agricultural use. (Cleary, supra, 118 Cal.App.3d at p. 359.)
Those concerns elicited a mere two sentences, one of which stated the obvious – the
Department of Agriculture was concerned with the effect on agriculture – and the other
which said “[t]his concern” had been addressed in “‘previous responses” without
identifying what those responses were or how it had been addressed. (Ibid.)
              But it was not all bad news for the lead agency in Cleary as to its responses
either. The court distinguished new issues from ones already covered. The state
department of Health had expressed “rather general concerns” about increased noise
levels, and the appellate court noted the “element of increased noise was considered” in
the draft EIR. The draft EIR had noted the project was in conformance with the noise
element of the county’s general plan, and that was sufficient. (Cleary, supra, 118
Cal.App.3d at pp. 359-360.) Likewise, in the ultimate de novo review, the court itself
read a bundle of letters individuals had submitted about the project, and came to the
conclusion none of the letters raised any “new environmental issues which the draft EIR
had not recognized or which were noted in the comments” by the various state agencies.
(Id. at p. 360.) Without further discussion of the application of the deficiencies in the
responses to the air quality and agricultural land value issues – the discussion
immediately segued into another issue regarding mandatory findings – the appellate court
reversed the judgment of the trial court and directed the writ requested by a project
opponent be issued. (Id. at pp. 361-362.)
              A deficient response was also found in San Joaquin Raptor/Wildlife Rescue
Center v. County of Stanislaus (1994) 27 Cal.App.4th 713 (San Joaquin Raptor). There,
the draft EIR for a 633-home plus commercial development plus park project completely

                                             27
omitted acknowledgment that the project was, in fact, adjacent to a sensitive wetland.
The draft EIR inaccurately said all surrounding land was agricultural. The adjacency of
the wetland surfaced only because of a comment from an objector. (See id. at pp. 724-
725) While the court didn’t quote the response, the opinion made it clear the response
was inadequate because it didn’t allow a reader to understand the size or location of the
wetlands or mention the effects of the project on the wetlands (such as the effect on the
wetlands of the widespread mosquito abatement required by a nearly population center).
The response, in short, left a big hole on the topic of those wetlands. (See id. at p. 726.)
              So the cases relied upon by Irvine, and others we’ve found where responses
to comments were inadequate seem to us to involve more serious lacunae than our case.
On the other side, Twain Harte does provide a few clear examples of what did pass
muster. Twain Harte concerned the EIR supporting a county’s general plan. One letter
writer thought the provision conditioning development on adequate available water was a
bad idea because the provision gave too much power to water agencies to allow
development. Another letter writer made the same point about sewer lines – it gave
sanitation agencies too much power to allow development. And a third suggested a
requirement that, as a mitigation measure, planning approval for water and sewer lines
must be required before obtaining overall planning approval. The first two letters were
not specifically responded to at all, and the third only generated a paragraph response
pointing out that water and sewer companies were legally required to provide hook-ups
regardless of the county’s planning preferences. A response to another comment
revealed that the county sent letters to the various water and sewer agencies – apparently
in the form of a survey – the results of which appeared in two revised tables in the EIR.
The nature of the tables and the survey was not detailed in the Twain Harte opinion, but
the paragraph on required hook-ups and the revised tables were found sufficient because
they revealed the very truth that the letters had first noted: Land use determinations



                                             28
would be made “initially” based on the availability of water and sewer services. (Twain
Harte, supra, 138 Cal.App.4th at p. 681.)
              From the cases, we may divine a few more basic thoughts as to the
application of the law to the adequacy of responses: When a comment raises a
“significant” environmental issue, there must be some genuine confrontation with the
issue, it can’t be swept under the rug (Kern County). Responses that leave big gaps in the
analysis of environmental impacts (such as missing entirely the existence of adjacent
wetlands) are obviously inadequate (San Joaquin Raptor). By the same token, comments
that bring some new issue to the table need genuine confrontation (Cleary). And
comments that are only objections to the merits of the project itself may be addressed
with cursory responses (Twain Harte).
2. Comments and Responses Re Traffic
              Irvine propounded 88 separate “comments” to the County but, mercifully,
has narrowed its appeal to only two sets of comments and responses: The first set
concerns comment numbers 32, 33, 39, and 45 all dealing with the impacts on local
traffic discussed above in part III.B. The second set is directed at comment numbers 61,
63, 64 and 67 involving the topic of mitigation of the loss of agricultural land, discussed
above in part III.C. We begin by setting out both the comments and responses to the first
set.
              Comment 32: “Please specifically disclose the criteria and process used by
the County of Orange Public Works staff to determine which additional intersections
should be added to the Traffic Study area.”
              Response to Comment 32: “The project study area was based on the
intersections analyzed in EIR 564. In addition, in consultation with County of Orange
Public Works staff, the ramps at Alton Parkway/SR-241 were added to the analysis based
on the potential for traffic to utilize SR-241 once Alton Parkway was extended.”



                                              29
              Analysis of Response to Comment 32: The response is adequate for three
reasons. One, the comment does not directly raise a “significant environmental issue,”
but merely touches on the significant issue of traffic impacts already covered by the EIR.
Two, it is not really a comment at all. It functions as an interrogatory directed to the
authors of the EIR. Three, considered as an interrogatory, the County answered the
question: Two new intersections (though one would learn that from the 2014 and 2030
traffic study tables) were added to account for traffic to and from a toll road after a
connector road was extended.
              Comment 33: “Please explain the factual basis for your assumption that
traffic generation today is the same as it was in 1996. To the extent your explanation is
based on inmate population, please explain (1) the relationship between inmates and
traffic generation, and (2) provide data indicating the number of inmates at the Musick
Honor Farm when the 1996 conditions were ascertained.”
              Response to Comment 33: “The project trip generation was based on data
provided by the Orange County Sheriff Department, as described and detailed in the
approved EIR 564.”
              Analysis of Response to Comment 33: As interrogatory answers go, this
one at first appears to be vulnerable to the charge of being non-responsive, but that’s
because of the comment’s own ambiguity in the phrase “traffic generation.” If one
concludes that “traffic generation” refers to all the new traffic that will be associated with
the development of the Great Park and its surrounding residential areas after 2000, the
response obviously doesn’t answer the question because the response is pegged to a 1996
document, not existing conditions. However, the County appears to have interpreted the
words “traffic generation” to refer to just the traffic generated by the expansion of the
Musick Facility itself, and on that score the response is certainly adequate in referring to
EIR 564. That seems to us to be reasonable. As we have noted above in our discussion
of the “supplemental versus supplement” issue, the project itself is still substantially the

                                              30
same as in 1996, and if Irvine had wanted some discussion of “new” traffic post 2000, its
comment certainly didn’t make that clear.
              Comment 39: “Please explain whether and to what extent the DSEIR
accounts for the programmed traffic improvements that have been added to or removed
from the North Irvine Transportation Mitigation program since 2006. We request this
explanation in an effort to ensure that your forecasts of future conditions (both traffic
conditions and assumed improvements) are accurate.”
              Response to Comment 39: “See response to comment 28.” Response to
comment 28: “The latest Irvine and Lake Forest approvals at the time the supplemental
traffic analysis was completed (2009) were included in the analysis. Land use changes
approved by the City after that date were not included in the analysis. However, to assess
the difference in project opening levels of service (LOS) between the latest ITAM and
recent project approvals within the City of Irvine (including the approved Great Park
Neighborhood SEIR) and the Supplemental Traffic Study for the Jail Expansion, a LOS
[level of service] comparison is provided. [¶] A comparison of intersection capacity
utilization (ICU) from the LSA Supplemental Traffic Analysis and the approved 2011
Heritage Fields Traffic Study is provided in Table A. As shown in this Table A, all study
area intersections operate at satisfactory LOS based on the LOS criteria for both the City
of Irvine and the City of Lake Forest. Although land uses and circulation network
changes have occurred since 2009, the satisfactory operations of these intersections have
not changed.”
              Analysis of Response to Comment 39: There are two reasons the response
was adequate. First, the comment did not raise a significant environmental issue at all, it
was an interrogatory directed at the draft EIR itself, not an issue. Second, as an
interrogatory, it answered the question: The County used information from Irvine and
Lake Forest as of 2009.



                                             31
              Comment 45: “Based on the recent approvals of the Great Park and
Heritage Fields projects, Irvine requests that analysis of the Sand Canyon/Interstate 5
Northbound and Southbound ramps and Sand Canyon Avenue/Marine Way be included
in the traffic study and DSEIR.”
              Response to Comment 45: “The project would contribute nominal traffic, if
any, to Sand Canyon Avenue/Interstate 5 (I-5) northbound ramps, Sand Canyon
Avenue/Marine Way, or Sand Canyon Avenue/I-5 southbound ramps. Therefore, these
intersections were not included in the Supplemental Traffic Analysis.”
              Analysis of Response to Comment 45: The comment only obliquely raises
an environmental issue, and not a significant one at that – the impact of the Musick
Facility expansion on two traffic points along Interstate 5. The County’s response qua
answer is conclusory to be sure – the County says there’s no need to consider these two
points because the project would create only nominal traffic to them, and that assertion is
indeed not supported. On the other hand, the comment on its face is essentially a demand
for two new intersections to be included in the study, and, in SEIR 564, the criteria for
which intersections rated study were laid out in a table involving levels of service based
on information obtained from Irvine itself as well as Lake Forest. Those criteria centered
on percentages of “intersection capacity utilization” (or “ICU” in the jargon), in which
intersections are given grades based on the percentage of capacity utilization. SEIR
564’s selection of which intersections was based on which intersections were busiest. It
is a reasonable inference from the traffic tables in SEIR 564 that the two off ramps were
nowhere close enough to capacity to be worth studying in traffic impacts.
3. Comments and Responses Re Agricultural Mitigation
              The analysis of the County’s responses to Irvine’s agricultural mitigation
comments requires a slight change in format, because the County’s response was a block
response to all of them. And that block is too generous to quote here. So we will first
quote the four subject comments, and then provide a synopsis of the County’s response.

                                             32
              Comment 61: “With regard to Mitigation Measure No. 4, the DSEIR
assumes, without providing any actual data to support the assumption, that the costs of
producing conservation easements would be prohibitively high. Please provide data to
back up the assertion.”
              Comment 63: “In its discussion of Mitigation Measure No.4, the DSEIR
assumes, without providing any data, that easement costs ‘could be very high, requiring
the County to find funding sources within its existing budget structure.’ Please provide
data to back up the assertion.”
              Comment 64: “On Page 4.12, the DSEIR speculates that it could be
difficult to locate willing sellers of development rights ‘in areas of escalating land
values.’ Not all areas of the County are currently experiencing escalating land values.
Please detail whether, and to what extent, the County has made an effort to locate willing
sellers of development rights.”
              Comment 67: “The DSEIR claims ‘a [Transfer of Development Rights
(TOR)] program would do little to mitigate for the loss of agricultural land due to the
project because protecting agricultural lands offsite would not directly offset the project-
related conversion of agricultural lands at the project site.’ There is no apparent factual
basis for this concern. The preservation of agricultural lands is a countywide issue (a fact
that is acknowledged several times in the DSEIR). While preservation of agricultural
lands onsite may be preferred, it is not essential to the mitigation of the impact.”
              Synopsis of Collective Response to Comments 61, 63, 64, and 67: The
response to Irvine’s objections to the possible mitigation avenues for the loss of
agricultural land first recounted that these mitigation concerns had already been voiced
by Irvine in its opposition to EIR 564 and litigated in Musick I. The County then noted –
as we have recounted above – that by 2012 the cost of raw land in the vicinity of the
project was about $2 million per acre and large scale agriculture is not economically
viable after the price of land reaches about $60,000 per acre. It went on to note that water

                                             33
costs more in Orange County than in other regions, including Oxnard and Ventura, and
living costs in Orange County are also higher than competing regions, meaning the price
of agricultural labor would be higher as well. The obstacles to agriculture in Orange
County are further compounded by constraints that include limitations on hours of
operation, limits on pesticide and fertilizer use, required setbacks from adjacent
nonagricultural uses, and even the “cleanup” that is required when farm equipment is
used on public roads. Add to that the fact that competition from elsewhere (including
Mexico, Chile, Argentina, and the Dominican Republic – more “farm-friendly”
environments) is increasingly rendering agriculture in Orange County uncompetitive.
Then there’s pollution from agriculture: The Musick jail expansion lies in a watershed
that drains into San Diego Creek and then into Upper and Lower Newport Bay, and those
water bodies have already been classified as impaired under the Clean Water Act. The
response further noted the irony that the City of Lake Forest (Irvine’s ally in Musick I)
has itself made findings contemplating the eventual elimination of all agricultural uses in
the city. And finally, the response recognized the straightforward policy decision of the
County not to “aggressively preserve agricultural lands” (County land is shrinking, and
the County has no reason to hold itself to a “different standard than it does for private
developers, especially in light of the fiscal woes of state and local governments in
California.”)
                Analysis of Response to Comments 61, 63, 64 and 67: All the comments
were essentially different ways of attacking SEIR 564’s findings regarding the
nonfeasibility of proposed mitigation measures 4, 5 and 6, a topic previously covered in
this already too long opinion. Beyond that, the response, as we have noted, erases any
doubt about the mitigation measures. The price of raw land had gone up since the draft
EIR and that price makes new commercial agriculture even more cost-prohibitive.




                                             34
4. Prejudice
               The County asserts Irvine has not demonstrated any prejudice from any
arguable inadequacy of its responses. We agree. Even if the language in Guideline
15088 about the need to address comments raising significant environment issues “in
detail” with “factual” support in “reasoned” and non-conclusory analysis were extended
to its furthest limit, the Legislature has still required a prejudicial abuse of discretion to
decertify an EIR. (§ 21168.5.) And Eureka Citizens has specifically indicated prejudice
in some purported inadequacy of a response must be shown. (See Eureka Citizens,
supra, 147 Cal.App.4th at p. 378.)
               At its best, the comment-and-response process in CEQA produces a better
EIR, by bringing to the attention of the public and decision-makers significant
environmental points that might have been overlooked. After all, an EIR is an
informational document (e.g., Metro Line, supra, 57 Cal.4th at p. 453) and when
comments, such as in San Joaquin Raptor, reveal a significant, overlooked environmental
effect, the necessity of a non-conclusory response forces decision makers to confront the
real downsides to a development project. (See Vedanta Society of So. California v.
California Quartet, Ltd. (2000) 84 Cal.App.4th 517, 530 [“There is a sort of grand design
in CEQA: Projects which significantly affect the environment can go forward, but only
after the elected decisionmakers have their noses rubbed in those environmental effects,
and vote to go forward anyway.”].)
               But the comment-and-response process can also be abused. At its worst, it
could become an end in itself, simply a means by which project opponents can subject a
lead agency’s staff to an onerous series of busy-work requests and “go fetch” demands.
As Presiding Justice McConnell wrote in Citizens for Responsible Equitable
Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, 524, the
point of CEQA, “‘is to inform government decision makers and their constituency of the
consequences of a given project, not to derail it in a sea of administrative hearings and

                                               35
paperwork.’” This case is an example of the drowning in “paperwork” Presiding Justice
McConnell warned about. We find no infirmity in the SEIR.
                                 IV. DISPOSITION
             The judgment is affirmed. Respondents shall recover their costs on appeal.




                                               BEDSWORTH, ACTING P. J.

WE CONCUR:



ARONSON, J.



FYBEL, J.




                                          36
Filed 7/6/15




                            CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FOURTH APPELLATE DISTRICT

                                     DIVISION THREE

CITY OF IRVINE,

    Plaintiff and Appellant,                      G049527

        v.                                        (Super. Ct. No. 30-2013-00622921)

COUNTY OF ORANGE et al.,                          ORDER

    Defendants and Respondents.



                 The County of Orange and Highland Fairview have requested that our
opinion, filed on June 12, 2015, be certified for publication. It appears that our opinion
meets the standards set forth in California Rules of Court, rule 8.1105(c). The requests
are GRANTED.

                                                 ARONSON, ACTING P. J.

I CONCUR:



FYBEL, J.
