Judge Maurice A. Leiter, Case Number: 24STCP00944, Date: 2024-06-10 Tentative Ruling

Moving Party: Respondent Los Angeles County Metropolitan Transportation Authority

Responding Parties: Petitioner Los Angeles Parks Alliance; Petitioner the California Endowment

The Court considers the moving papers, oppositions, and replies filed in both cases.

On March 25, 2024, Petitioner Los Angeles Parks Alliance filed a petition for writ of mandate against Respondent Los Angeles County Metropolitan Transportation Authority (“Metro”). On March 26, 2024, Petitioner the California Endowment filed a similar action. The Court related the two cases.

The petitions challenge Metro’s approval of the Los Angeles Aerial Rapid Transit Project. The Project would construct a 1.2-mile-long aerial gondola system that connects Union Station to Dodger Stadium, including an intermediate station (200-feet-long, 80-feet-wide, and 98-feet-tall) at the entrance of the Los Angeles State Historic Park. Petitioners assert that the construction of a station and aerial pathways for gondola cabins would unlawfully use nearly two acres of LA State Historic Park and would benefit a private venture while adversely impacting the park’s scenic viewsheds and open spaces, removing more than six dozen trees, and disrupting park activities. Petitioners claim that significant environmental effects have not been adequately addressed in the Project’s Environmental Impact Report (EIR).

On February 22, 2024, following a public hearing, Metro voted to approve the Project, certify the Final EIR, adopt a Mitigation Monitoring and Reporting Program, and adopt CEQA Findings and a Statement of Overriding Considerations for the Project. On February 26, 2024, the CEQA Notice of Determination was filed with the County Clerk and State Clearinghouse.

Metro requests that the Court issue an order confirming that Petitioners’ suits are subject to the expedited litigation requirements of Public Resources Code § 21168.6.9 and Rules of Court 3.2220-3.2231, and establish a briefing schedule and trial date consistent with those requirements.[1]

On or before January 1, 2023, the Judicial Council shall adopt rules of court that apply to any action or proceeding brought to attack, review, set aside, void, or annul the certification of an environmental impact report for an environmental leadership transit project or the granting of any project approval that require the action or proceeding, including any potential appeals to the court of appeal or the Supreme Court, to be resolved, to the extent feasible, within 365 calendar days of the filing of the certified record of proceedings with the court.

Metro contends that whether the project qualifies as an “environmental leadership transit project” under section 21168.6.9 should be decided under the substantial evidence standard of review, because it is a factual determination based on the project’s specific features, operations, and impacts. Metro also argues that the application of section 21168.6.9 should be reviewed for substantial compliance, saying that strict compliance is not necessary if the fundamental objectives and intent of the law are met.

Petitioners argue that whether the statute applies to these cases is a legal question to be reviewed de novo. They contend that even if factual determinations are involved, mixed questions of law and fact still should be subject to independent review.

The Court finds that the substantial evidence standard of review applies. Determining whether a project qualifies as an “environmental leadership transit project” under section 21168.6.9 is a factual determination that involves assessing whether the project applicant meets certain conditions laid out in the statute. For instance, the conditions require that the fixed guideway operate at zero emissions, reduce emissions, reduce vehicle miles traveled in the corridor of the project, be consistent with the applicable regional transportation plan, incorporate sustainable infrastructure practices, and be located wholly within the County of Los Angeles or connect to an existing transit project within the County. And the record of proceedings must be prepared in accordance with the applicable statute. (See Pub. Resources Code § 21168.6.9 subd. (a)(1)(A)-(H).)

Metro has shown that the determination of an “environmental leadership transit project” is like an agency’s determination regarding a statutory exemption because both require an evaluation of whether specific elements or conditions are met. See Coast Rivers Alliance v. Westlands Water Dist. (2014) 227 Cal.App.4th 832, 850 (in determining whether to uphold an agency’s reliance on a statutory exemption, the courts review “the administrative record to see that substantial evidence supports each element of the exemption”), and Lucas v. City of Pomona (2023) 92 Cal.App.5th 508, 538 (“In determining whether an agency’s findings concerning the use of a statutory exemption from CEQA may be upheld, we review the administrative record to see that substantial evidence supports each element of the exemption.”) The substantial evidence standard is consistent with the goals of section 21168.6.9.

“Substantial evidence” is “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.” (Pub. Resources Code §15384(a).

The Court GRANTS Metro’s request for judicial notice pursuant to Evidence Code §§ 452 (b), (c), (d), and (h).

To determine whether the Project is eligible for section 21168.6.9 streamlining, it must meet the requirements for an environmental leadership transit project.

Section 21168.6.9 sets forth the requirements and definitions for an “Environmental Leadership Transit Project.” To qualify, the project must be a “fixed guideway” within the meaning of 49 U.S.C. § 5302 that meets these conditions:

(B) (i) If the project is more than two miles in length, the project reduces emissions by no less than 400,000 metric tons of greenhouse gases directly in the corridor of the project defined in the applicable environmental document over the useful life of the project, without using offsets.

(ii) If the project is no more than two miles in length, the project reduces emissions by no less than 50,000 metric tons of greenhouse gases directly in the corridor of the project defined in the applicable environmental document over the useful life of the project, without using offsets.

(C) The project reduces no less than 30,000,000 vehicle miles traveled in the corridor of the project defined in the applicable environmental document over the useful life of the project.

(D) The project is consistent with the applicable sustainable communities strategy or alternative planning strategy.

(F) The project applicant demonstrates how it has incorporated sustainable infrastructure practices to achieve sustainability, resiliency, and climate change mitigation and adaptation goals in the project, including principles, frameworks, or guidelines as recommended by one or more of the following:

(i) The sustainability, resiliency, and climate change policies and standards of the American Society of Civil Engineers.

(ii) The Envision Rating System of the Institute for Sustainable Infrastructure.

(iii) The Leadership in Energy and Environment Design (LEED) rating system of the United States Green Building Council.

(G) The environmental leadership transit project is located wholly within the County of Los Angeles or connects to an existing transit project wholly located in the County of Los Angeles.

(H) For a project meeting the requirements of subparagraphs (A) to (G), inclusive, for which the environmental review pursuant to this division has commenced before January 1, 2022, the project applicant demonstrates that the record of proceedings is being, or has been, prepared in accordance with subdivision (f).

(§ 21168.6.9 subdiv. (a)(1).) As noted, “fixed guideway” has the same meaning as in Section 5302(8) of Title 49 of the United States Code:

(8) Fixed guideway.—The term “fixed guideway” means a public transportation facility—

(A) using and occupying a separate right-of-way for the exclusive use of public transportation;

(49 U.S.C., § 5302(8).) The term “public transportation” is defined under federal law as “regular, continuing shared-ride surface transportation that are open to the general public.” (49 U.S.C. § 5302(15).)

Metro asserts that there is substantial evidence to support that the Project is a “fixed guideway” and therefore “public transportation” because it is a fixed aerial tramway that will be open to the public for service at regular, scheduled operating times. The Project “would provide an aerial rapid transit (ART) option for visitors to Dodger Stadium, while also providing access between the Dodger Stadium property, the surrounding communities . . . and the Los Angeles State Historic Park, to the regional transit system accessible at [Union Station] . . . . The proposed Project would operate daily to serve existing residents, workers, park users, and visitors to Los Angeles.” And the “Project [would] never close to the general public when operating” but may vary service levels consistent with other public transit projects to meet demand while still operating “under a pre-determined regular operating schedule.”

In opposition, Petitioners contend that the Project does not use a “fixed catenary system” as defined in 49 U.S.C. section 5302 subdivision (8)(C), which involves overhead wires supplying electricity to vehicles with pantographs. Petitioners also say the Project’s operations are not “regular” and “continuing,” as defined under 49 U.S.C. section 5302, as they vary based on demand and are scheduled at the operator’s discretion on non-game and non-event days. Petitioners claim that the Project occasionally prioritizes Dodgers ticket holders and uses a timed reservation system on busy days, potentially limiting access for the public. Since the Project operates as an aerial tramway, Petitioners state this is not “surface transportation.” Petitioners also point out that by Real Party’s own assertions, the Project is an “aerial ropeway” system to a specific location akin to a courtesy shuttle, “not a ‘transit guideway system.’”

In reply, Metro asserts that the Project uses and occupies a separate and exclusive right-of-way, which is secured through a franchise agreement with the City of Los Angeles, and no other entity can use its airspace or ground points. Metro contends that right-of-way exclusivity in public transportation means functional and temporal control, not physical separation. Metro claims the Project also qualifies as a “fixed guideway” because it uses a “fixed catenary system:” a transit system with a route fixed between two points using a cable that forms a catenary shape.

Metro has provided substantial evidence supporting the Project’s classification as a “fixed guideway” and therefore “public transportation” under 49 U.S.C. § 5302. The evidence shows that the Project operates as a fixed aerial tramway, with an exclusive right-of-way secured through a franchise agreement with the City of Los Angeles, and it serves the public at regular, scheduled operating times. The Project’s use of cables forming a catenary shape satisfies the broad definition of a “fixed catenary system.” This interpretation is consistent with federal guidelines, which recognize aerial tramways as a type of fixed guideway.

Metro’s interpretation of the term “exclusive right-of-way” is reasonable. The exclusivity is functional and temporal, as evidenced by the Project’s secured airspace and ground points, even if certain surface components are shared with private vehicles. This aligns with the broader understanding of exclusive right-of-way in public transportation, where functional control is paramount. The Project’s separate and exclusive right-of-way is secured through a franchise agreement with the City of Los Angeles; the presence of surface components within existing city rights-of-way does not negate the Project’s exclusive use for public transportation; the definition of exclusive right-of-way includes functional and temporal control.

While operating schedules may vary to meet demand, there is substantial evidence to show that the Project maintains a regular operating schedule consistent with other public transit systems. Adjustments to speed and capacity to meet demand are standard in public transportation and do not undermine the regularity or continuity of service. The Project’s integration with Metro’s Transit Assistance Program and its role in connecting key areas such as Union Station, Chinatown, and Dodger Stadium confirm its function as public transportation.

Metro has met its burden of proving the Project’s compliance with the statutory requirements of a “fixed guideway” system.[2]

Metro argues that the Project will reduce greenhouse gas (GHG) emissions by 166,653 metric tons of carbon dioxide over the Project’s useful life and result in 129,29,400 vehicle miles traveled (VMT) over its useful life, which exceeds the minimum requirements set by section 21168.6.9.

Petitioners assert that the Final EIR’s calculations of required VMT and GHG reductions fail to account for the “whole of the action,” omitting the reasonably foreseeable future development of parking lots around Dodger Stadium that would result from the Project. Petitioners claim that during the environmental review process, LAPA and other public commenters provided substantial evidence that development of the parking lots was likely to follow Project approval.

Under CEQA, a “project” encompasses the whole action that may result in a physical change in the environment. (14 Cal. Code Regs. § 15378, subd. (a).) Failure to analyze the whole action constitutes improper “piecemealing.” (Banning Ranch Conservancy v. City of Newport Beach (2012) 211 Cal.App.4th 1209, 1222.) Under Laurel Heights Improvement Association v. Regents of University of California (1998) 47 Cal.3d 376, environmental effects of a future action must be analyzed if the future action is a reasonably foreseeable consequence of the initial project and would significantly change the scope or nature of the initial project or its environmental effects.

Metro relies on Berkeley Keep Jets Over the Bay Committee v. Board of Port Commissioners (2001) 91 Cal.App.4th 1344, to show that potential future actions mentioned in early planning documents do not become reasonably foreseeable parts of a current, clearly-defined project. Metro argues that Petitioners have not provided evidence of current plans to develop the Dodger Stadium parking lots, much less any firm commitment to such development.

Metro has provided substantial evidence that the Project’s VMT and GHG reduction estimates comply with section 21168.6.9. The Project’s primary purpose is to provide public transportation connecting Union Station to Dodger Stadium, Chinatown, Los Angeles State Historic Park, and Elysian Park. Petitioners have not provided sufficient evidence that development of the Dodger Stadium parking lots is a reasonably foreseeable consequence of the Project.

The Project’s improvements also are consistent with the existing Conditional Use Permit and CC&Rs for Dodger Stadium, which allow for mass transportation service collaboration without authorizing new development. And the Project has distinct and independent utility, serving as a mass transportation link irrespective of any potential future development; the Project is expected to move approximately 967,800 riders in its first year. Metro has met its burden of providing substantial evidence to support the Project's VMT and GHG reduction estimates.

Metro states that the Project will operate with zero emissions, fulfilling the requirements of section 21168.6.9, subdivision (a)(1)(A), because the project’s guideway is powered by electricity which will be supplied by the City of Los Angeles Department of Water and Power (LADWP) through its Green Power Program. This program ensures that the electricity used by the guideway comes from renewable resources, resulting in no greenhouse gas (GHG) or criteria pollutant emissions. This satisfies the requirement that the Project operate at zero emissions.

Metro argues that the Project is consistent with the applicable sustainable communities strategy and alternative planning strategy, and applicable regional transportation plan, as required by section 21168.6.9, subdivisions (a)(1)(D)-(E). In September, the Southern California Association of Governments (SCAG) approved the 2020-2045 Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS), called Connect SoCal, which outlines ten main goals, all of which the Project supports. The Project enhances mobility, accessibility, reliability, and travel choices for those traveling to major event locations like Dodger Stadium and improves transit services to nearby communities. The Project contributes to reduced greenhouse gas emissions by cutting down on vehicle miles traveled (VMT). SCAG agrees that the Project aligns with Connect SoCal. This satisfies the sustainable communities strategy and regional transportation plan requirement.

Metro contends that the Project fully integrates sustainable infrastructure practices, meeting the criteria in section 21168.6.9, subdivision (a)(1)(F). Metro evaluated the Project using the Envision Rating System of the Institute for Sustainable Infrastructure and the Leadership in Energy and Environmental Design (LEED) system for Building Design and Construction. These assessments confirmed that the Project includes features that promote sustainability, resiliency, and the mitigation and adaptation to climate change. The Project also minimizes impacts on historic and archaeological resources, preserves local viewsheds and character, and incorporates design elements like open-air station boarding platforms with natural shading and ventilation. This satisfies the requirement.

Metro argues that it complied with the procedural requirements of section 21168.6.9 throughout the Project’s environmental review process.

Metro states that it met all public meeting requirements mandated by Section 21168.6.9 during the environmental review process. Metro held two informational workshops, one virtual and one in-person, within ten calendar days following the release of the draft EIR on October 17, 2022. Metro held four public hearings to receive comments on the draft EIR, though only one such hearing was required. During these hearings, project materials and information were made available to inform the public about the draft EIR’s key analyses and conclusions, as they were at the informational workshops. This satisfies the public meetings requirement.

b. Notice in Draft and Final EIR; Required Documents; Notice of Determination; Certification of Project’s Record of Proceedings; and Financial and Pay Requirements

Metro argues that it adhered to all procedural requirements in section 21168.6.9 for the approval and review of the Project. Metro included notices in both the Draft and Final EIRs indicating that the EIR and any action challenging the Project’s approval are subject to Section 21168.6.9. Metro made all required documents available in electronic format on the Project’s website. Metro timely filed the Notice of Determination for the Project. Metro certified the Project’s record of proceedings within the timing requirements specified by Section 21168.6.9 And Metro entered into a Memorandum of Agreement with the Real Party in Interest, in which the Real Party agreed to reimburse all Metro costs.

Metro also argues that both it and Real Party satisfied the post-approval procedural requirements in section 21168.6.9 and the Rules of Court. Metro lodged a certified copy of the record of proceedings with the Superior Court pursuant to section 21168.6.9, subdivision (f)(8) and Rule 3.2225(a) of the Rules of Court. After receiving the petitions from the petitioners on March 28, 2024, Metro submitted the required documents on April 4, 2024, within the 10-day deadline. In compliance with Rule of Court 3.2224, both Metro and the Real Party filed their answers to the petition on April 8, 2024, ten days after the petitions were served. The Real Party also fulfilled the financial obligations of Rule 3.2240(3) by paying $180,000 for Superior Court costs on April 5, 2024, within the ten-day period after the petitions were served.

Metro has substantially complied with all procedural requirements outlined in section 21168.6.9 for the approval and review of the Project.

[1] While this motion was pending, and with the parties’ consent, the Court set trial in these matters for August 12, 2024.

[2] Because the Court finds substantial evidence that the project qualifies as a fixed guideway, the Court does not reach Metro’s contention that Petitioners’ argument about “public transportation” is barred by issue preclusion.

*Superior Court of California* *County of Los Angeles*
Los Angeles Parks Alliance,	Petitioners,	Case Nos.:	24STCP00944 24STCP00965
v.		Tentative Ruling
Los Angeles County Metropolitan Transportation Authority,	Respondent.
The California Endowment, v. Los Angeles County Metropolitan Transportation Authority,	Petitioner, Respondent.
Zero Emissions Transit, Los Angeles Aerial Rapid Transit Technologies LLC.	Real Parties in Interest.