Exhibit 2: REVISED Draft Comment Letter - Updated 11/19 — Alameda City Council, November 19, 2024

*REVISED DRAFT – SUBJECT TO CHANGE*
1 November 19, 2024

Via Electronic & Regular Mail

Colleen Liang, Director
Port of Oakland
Environmental Programs and Planning Division
530 Water Street
Oakland, CA 94607

Re: Oakland International Airport Terminal Modernization and Development Project and Final Environmental Impact Report (EIR) (SCH No. 2021050164)

Dear Ms. Liang,

The City of Alameda (the City) provides these comments, including the attached City expert comment letters, on the Final Environmental Impact Report (FEIR) and related staff report prepared for the proposed Oakland International Airport (OAK) Terminal Modernization and Development Project (Project). The City requests that the Board of Commissioners (Board) for the Port of Oakland (Port) give the City’s comments serious consideration before the November 21, 2024, hearing, and before taking action to approve the Project.

As detailed herein, the Final EIR, like the Draft EIR (DEIR) before it, fails to comply with the substantive requirements of the California Environmental Quality Act (CEQA) (Pub.

Resources Code, § 21000 et seq.) The City, therefore, again requests that the Port revise and recirculate the EIR to allow for meaningful review and public comment, including review and comment on the new information contained in the numerous revised DEIR Appendices, which were publicly produced for the first time as part of the Final EIR. The City remains troubled by the EIR’s lack of mitigation and analysis of the short- and long-term impacts of the Project on City residents and infrastructure.

Although the City values its relationship with the Port and recognizes the important role that OAK serves our area and region, the City cannot support the Project until the EIR is revised to meaningfully analyze and mitigate the Project’s foreseeable direct and indirect (including cumulative) significant adverse impacts to the City and surrounding community. Until then, and absent more detail about what the Project will ultimately entail, the City cannot confidently assure its residents that these impacts will be mitigated to the greatest extent feasible; particularly those relating to air quality, health risks, greenhouse gas (GHG) emissions, noise, and traffic.

While the City appreciates the FEIR’s responses to most of the City’s comments, there are many that remain unanswered, including comments from the City’s technical experts who identified the EIR’s lack of substantial evidence supporting many of its impact conclusions and Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
2 errors in the modeling methodologies. The City’s concerns are compounded by the significant new information contained in the FEIR’s new and revised technical appendices, which have not been circulated for public review and comment. The City was therefore forced to engage its technical experts again at public expense and on a very short timeframe to review the new information in these FEIR appendices.1

I. The FEIR Precludes Informed Decisionmaking.

Despite the City’s prior comments requesting that the Port revise and recirculate the fundamentally inadequate DEIR to cure its numerous deficiencies, the City is disappointed to find that the FEIR still contains those shortcomings, along with many others, and thus continues to preclude informed public participation. Even worse, the FEIR includes new and revised appendices without explaining the new information in the body of the EIR or showing the changes and additions made to the Appendices in track changes.

A. The FEIR Must Be Recirculated Because It Contains Significant New Information.

The FEIR contains significant new information that mandates recirculation. (CEQA Guidelines, § 15088.5, subd. (a); Pub. Resources Code, § 21092.1.) The purpose of recirculation is to provide the public with a meaningful “opportunity to test, assess, and evaluate the data and make an informed judgment as to the validity of the conclusions to be drawn” from the revised EIR. (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 131; CEQA Guidelines, § 15088.5.) New information added to an EIR after the close of the public comment period is “significant” and thus requires recirculation if it changes the EIR “in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project’s proponents have declined to implement.” (Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1129 (Laurel Heights II) [original italics]; CEQA Guidelines, § 15088.5, subds. (a)(2)–(3).) For the reasons explained below, recirculation of at least portions of the DEIR and FEIR Appendices is required.

/ / /

1 This letter, including the attached technical expert comment letters, constitutes the City’s comments on the FEIR. Attachments A and B include technical comments and analyses from:
(i) Ms. Erin Sheehy, LEED AP, Environmental Compliance Solutions, regarding air quality, GHG emissions and health risks (Attachment A); and, (ii) Mr. John Freytag, P.E., Freytag & Associates LLC, regarding noise impacts (Attachment B). Attachment C contains a list of additional feasible mitigation measures that the City encourages the Port to consider adopting before certifying the FEIR.

Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
3 1. Final EIR Appendices E (Human Health Risk Assessment) , F (Air Quality), L (Noise Model Inputs), M (Sleep Disturbance Analysis), and Q (Single Event Noise Level Analysis) contain significant new technical information regarding the Project’s significant unmitigated air quality and noise impacts.

As noted above, multiple appendices attached to the FEIR include new information and revisions that are not shown in track changes or explained in detail in the body of the FEIR.

Interested stakeholders and agencies are therefore forced to ferret through the FEIR Appendices in an attempt to decipher what is new or different. Such an approach is disliked by the courts and highly unusual for a public lead agency under CEQA.

First, for example, the “Human Health Risk Assessment – Inhalation Pathway Modeling Protocol” from January 6, 2023, which was previously included in Appendix E (HHRA) to the DEIR, has since been removed from Appendix E in the FEIR. (See Attachment A hereto, pp. 3–

4.) The FEIR makes no mention of the deleted protocol and the reasons for doing so. Removing this protocol and the data it produced further precludes meaningful public review of the Project’s air quality emissions and potential impacts to human health. This is particularly the case when the DEIR previously relied on the Protocol to support its earlier analyses and conclusions. (See Spring Valley Lake Assn. v. City of Victorville (2016) 248 Cal.App.4th 91, 108–109 [city’s failure to provide strike-out version of revisions and additions made to text of FEIR’s technical reports violated CEQA by depriving the public of a meaningful opportunity to comment].)

Second, the FEIR adds new air quality emissions data to the end of Appendix F (Air Quality), again, without explaining the new figures and data in the body of the FEIR. (See FEIR, Appendix F, pp. 889–898; see also Attachment A, pp. 6–7.) It’s difficult to discern what, precisely, was added or changed, and how the new data relates to the EIR’s conclusions about the Project’s significant adverse air quality impacts. It also prevents the public, including the City’s experts, from being able to analyze the data to determine whether the conclusions drawn therefrom are accurate. CEQA requires that “the data in an EIR must not only be sufficient in quantity, it must be presented in a manner calculated to adequately inform the public and decision makers, who may not be previously familiar with the details of the project. Information scattered here and there in EIR appendices or a report buried in an appendix, is not a substitute for a good faith reasoned analysis.” (Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova (2007) 40 Cal.4th 412, 442 (Vineyard).)

Third, the FEIR also now includes significant new information and data about the Project’s potential noise impacts, including: new construction noise tables and calculations that were added to Appendix L (Noise Model Inputs); a new technical memorandum that was added to Appendix M (Sleep Disturbance Analysis); and an entirely new appendix—Appendix Q— which features a newly-conducted Single Event Noise Level (SEL) analysis. (See Attachment B, pp. 2–5.) Curiously, in explaining the addition of Appendix Q, the FEIR admits that this study “was prepared because that methodology is more commonly used and was used for the Port's last OAK EIR, the 2003 Airport Development Program Supplemental Environmental Impact.” (FEIR, Appendix P, p. P-44.) This begs the question, then, as to why this analysis wasn’t initially Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
4 prepared and included in the Draft EIR so that the public could meaningfully assess its analyses and findings, and in turn, recommend any outstanding mitigation measures that could feasibly reduce noise impacts.

The FEIR’s last-minute inclusion of this crucial analysis and the new information in the revised Appendices deprives the public of a meaningful opportunity to comment on substantial adverse environmental effects of the Project, including to ROG, NOx, PM2.5, and GHG emissions and human health risks, among others, and feasible ways to mitigate or avoid such effects, including from a feasible Project alternative that is not included in the DEIR (e.g. a reduced Project alternative). Consequently, the EIR continues to preclude informed decisionmaking and presents significant new information that must be recirculated for adequate public review and comment prior to certification.

2. The FEIR relies on new information that was n ever incorporated by reference or made publicly available for review.

The City is troubled by the FEIR’s reference to several new studies and documents that are not incorporated into or attached to the FEIR. In particular, the FEIR’s “Global Response G:

Greenhouse Gas and Climate Change” reveals that, since publishing the DEIR, the Port has now achieved “Level 2 Accreditation: Reduction” and “Level 3 Accreditation: Optimization” as part of its participation in the Airports Council International (ACI) Airport Carbon Accreditation (ACA) Program. (FEIR, Appendix P, p. P-53.) The response explains that, as part of these accreditations, “the Port developed and signed Carbon Reduction Statements with a goal of 50 percent emission reduction by 2030 and 100 percent zero emissions by 2040 from airport-owned and operated operations.” (Ibid.) Moreover, as part of achieving Level 2 Accreditation, “the Port prepared a Carbon Management Plan, which includes initiatives to further reduce its carbon footprint.” (Id. at p. P-54.) Similarly, as part of its Level 3 Accreditation, the Port will focus on “third-party engagement in carbon footprint reduction and wide[n] the scope of carbon footprint [sic] to include third party emissions and engage third parts at and around the Airport.” (Ibid.)

While the DEIR previously provided a citation to the general webpage for the ACI’s ACA Program, the FEIR provides no further information about where these alleged Accreditation documents can be accessed, including the Port’s newly-prepared Carbon Management Plan. Because the FEIR relies on initiatives contained within that Plan to reduce GHG emissions, the Port has a duty to incorporate that Plan into the FEIR or, at the very least, provide a hyperlink to it. (CEQA Guidelines, § 15150, subd. (b); see also id. at § 15130, subd. (b)(1)(B) [“Any such [planning] document shall be referenced and made available to the public at a location specified by the lead agency”]; accord, Gray v. County of Madera (2008) 167 Cal.App.4th 1099, 1128.) Otherwise, “[m]aterial not contained in the EIR cannot be expected to be considered; and therefore, cannot be relied upon to support an adequate EIR.” (People ex rel.

Bonta v. County of Lake (2024) __ Cal.App.5th __ (Cal. Ct. App., Oct. 23, 2024, No. A165677) (2024 WL 4553306 at *6) (Bonta v. Lake County).)

More importantly, the Airport Carbon Management Plan (or Plan) appears to be a work in progress and has not yet been formally adopted after the completion of environmental review Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
5 under CEQA.2 The EIR, therefore, may not defensibly rely on the Plan to conclude that the Project’s impacts will be mitigated to less-than-significant, including for GHG, NOx, ROG, or PM2.5 emissions. (See CEQA Guidelines, § 15183.5 [Tiering and Streaming the Analysis of GHG Emissions]; see also California Native Plant Society v. County of El Dorado (2009) 170 Cal. App. 4th 1026, 1052–1056 (CNPS)3.)

In sum, because the FEIR fails to correct the DEIR’s previous deficiencies and now contains significant new information that the public previously did not consider, the Port must recirculate the EIR to provide the public and sister agencies with a meaningful opportunity to comment on the Project’s substantial environmental impacts to air quality, GHGs, and noise, among others. (See Laurel Heights II, supra, 6 Cal.4th at p. 1120 [recirculation is “required when the information added to the EIR changes the EIR in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project”].)

B. The FEIR’s Responses to the City’s Comments on the DEIR are Inadequate.

CEQA requires the Port, as lead agency, to address major environmental issues raised in comments on the DEIR “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.” (CEQA Guidelines, § 15088, subd. (c).) Accordingly, when comments suggest additional mitigation measures or project alternatives and are supported by expert opinion or technical evidence, the FEIR must provide a detailed, evidence-based response thereto. (See Covington v. Great Basin Unified Air Pollution Control Dist. (2019) 43 Cal.App.5th 867, 879.) The purpose of “a detailed analysis in [the FEIR’s] response[s] [is to] ensure that stubborn problems or serious criticisms are not ‘swept under the rug.’” (Santa Clarita Organization for Planning the Environment v. County of Los Angeles (2003) 106 Cal.App.4th 715, 723.) Here, however, the Port’s responses do precisely that.

2 See August 2024 RFQ for Port of Oakland Sustainability Management Plan, Table 1, stating that the Airport Carbon Management Plan is an “Ongoing Supplemental Technical Report.” See https://www.portofoakland.com/wp-content/uploads/2024/08/24-25-01-final-Port-of-Oakland- Sustainability-Management-Plan.pdf (p. 3.)
3 CNPS, supra, involved a challenge to a county’s reliance on a rare plant fee program to find impacts of a congregate care project on rare plants less-than-significant. The county adopted the program by ordinance without first conducting environmental review it. The court of appeal invalidated the mitigated negative declaration the county relied on for the project, reasoning that “[t]o be considered adequate, a fee program at some point must be reviewed under CEQA, either as a tiered review eliminating the need to replicate the review for individual projects, or on a project-level, as-applied basis.” (Id. at p. 1030.) “For such a program to satisfy CEQA, it must at some point pass CEQA muster, either at the programmatic level or the individual project level.” (Id. at pp. 1049, 1051.) The Port’s Carbon Management Plan cannot be defensibly relied on to support the EIR’s impact conclusions for the Project because it also has not undergone environmental review.

Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
6 For example, in response to the City’s suggestion that the Port consider adopting a baseline that averages airport demands from the years 2019, 2020, and 2021 to better estimate the Project’s actual future impacts, the Port contends that it did not “average airport demands from 2019, 2020, and 2021.” (FEIR, Appendix P, p. P-230 [Response 5].) This misconstrues the comment, which states that the DEIR should have averaged historic conditions instead of relying only on those conditions that existed in 2019. (See id. at p. P-84 [explaining that the “DEIR misleads the public and agency decisionmakers as to the reality of the Project’s impacts and subverts full consideration of actual impacts” by “fail[ing] to account for historic conditions— i.e., by averaging airport demands from 2019, 2020, and 2021”].)

The Port similarly dismissed a request that the DEIR be revised to present technical data in an intelligible manner, rather than continuously referring the reader to one of its many appendices. (See FEIR, Appendix P, pp. P-85–P-86 [Comment 9].) Instead of synthesizing the results of the Sleep Disturbance Study contained in Appendix M—as the City’s comment requested—the Port’s response simply repeated that the Study “was incorporated into the main body of the EIR by reference[.]” (Id. at p. P-231 [Response 9].) Not only does this response ignore the comment, it neglects to address the Port’s failure to present the study’s data in the body of the EIR, which violates CEQA. “An adequate EIR requires more than raw data; it requires also an analysis that will provide decision makers with sufficient information to make intelligent decisions. If, as [the Port] claim[s], the requisite information is included in the documentation attached to the EIR, setting out that information in a clear analysis within the EIR should not pose any difficulty.” (County of Amador v. El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 955–956.)

The same is true for the responses to City comments that pointed out analyses missing from the DEIR. The City noted that DEIR Section 3.3.2.3 failed to explain how, based on BAAQMD’s thresholds, the Project’s construction-related emissions would be less than significant despite the magnitude of the Project and numerous years of demolition and construction. (FEIR, Appendix P, p. P-89 [Comment 18].) The comment also noted that, despite finding the Project would have significant adverse impacts from operational volatile organic compounds (VOCs), NOx, GHGs, and chronic health effects, the EIR did not propose any mitigation measures to avoid or reduce such impacts. (Id. at p. P-88 [Comment 17].)

The Port’s responses to the City’s comments, however, merely direct the City back to the EIR’s two informationally deficient sections that the City’s comments specifically contested. (See id. at pp. P-232–P-233 [stating that “[m]itigation measures for air quality are discussed in Section 3.3.3 of the EIR” and “Section 3.3.2.3 of the EIR discusses construction emissions and Appendix F provides the Air Quality Protocol”].) These fundamental deficiencies in the DEIR therefore remain unremedied and unaddressed by the Port’s conclusory responses to the City’s comments. (Cf. San Joaquin Raptor/Wildlife Rescue Center v. County of Stanislaus (1994) 27 Cal.App.4th 713, 725 (San Joaquin Raptor/Wildlife v. Stanislaus) [response that failed to address comment’s assertion did not remedy EIR’s deficient wetlands analysis]; see also Clery v. County of Stanislaus (1981) 118 Cal.App.3d 348, 358 [conclusory response did not adequately treat commenter’s claimed inadequacies of data contained in draft EIR to determine the project’s effect on air quality].) This is because a “conclusory statement unsupported by empirical or experimental data, scientific authorities, or explanatory information of any kind not only fails to Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
7 crystallize issues but affords no basis for a comparison of the problems involved with the difficulties involved in the alternatives. Moreover, where comments from responsible experts or sister agencies disclose new or conflicting data or opinions that cause concern that the agency may not have fully evaluated the project and its alternatives, these comments may not be simply ignored. There must be good faithed, reasoned analysis in response.” (Clery at p. 358.)

The Port’s Global Responses unfortunately repeat this practice by similarly providing only generalized and unhelpful references to the EIR’s appendices rather than summarizing the raw data and conclusions in the body of the document. (See, e.g., FEIR, Appendix P, pp. P-49– P-50 [global response to comments regarding air quality analyses refers readers to Appendix E instead of summarizing the results of its PM2.5 analysis for the Project].)

As the City’s comments emphasized, decisionmakers and members of the public “should not be forced to sift through obscure minutiae or appendices in order to ferret out the fundamental…assumptions that are being used for purposes of the environmental analysis.” (San Joaquin Raptor/Rescue Center v. County of Merced (2007) 149 Cal.App.4th 645, 659 (San Joaquin Raptor/Rescue v. Merced); see Planning and Conservation League v. Dept. of Water Resources (2000) 83 Cal.App.4th 892, 911 [“requiring the reader to painstakingly ferret out the information from the reports…is not enough” under CEQA].) Instead, the FEIR must “provide an adequate analysis to inform the public how its bare numbers translate” by presenting such data “in a manner calculated to adequately inform the public and decisionmakers who may not be previously familiar with the details of the Project.” (Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, 521 (Friant Ranch); Vineyard, supra, 40 Cal.4th at p. 442.) The FEIR’s failure to do so, much less in response to the City’s comments requesting as much, thwarts “the purpose of CEQA that the public obtain a full understanding of the environmental impacts of [the] Project from a single source relevant informational document—that being the EIR.” (Bonta v. Lake County, supra, at *6.)

For the reasons stated above, the FEIR prejudicially precludes informed decisionmaking by presenting significant new information about the Project’s significant air quality, GHG, and noise impacts, while simultaneously failing to adequately respond to the City’s comments thereon. Accordingly, the Port must revise and recirculate the FEIR to cure these deficiencies and provide the public with a meaningful opportunity to review and comment on the significant new information therein.

II. The FEIR Remains Legally Inadequate.

The City’s comments on the DEIR highlighted the document’s significant deficiencies, including: the lack of substantial evidence to support the selected baseline and the assumptions that flow from it; the inadequate analyses of, and mitigation for, the Project’s reasonably foreseeable and potentially significant and unavoidable impacts to air quality, GHGs, noise, and traffic; and the document’s woefully inadequate analysis of Project alternatives.

The FEIR nevertheless remains largely unchanged on these issues and instead sneaks new information into various appendices without disclosing or discussing this new data. The Port’s approach to the EIR and unwillingness to adopt any mitigation measures for many of the Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
8 Project’s significant adverse environmental impacts, including for the 10,644.90 MtCO2e of Project construction-related GHG emissions, is troubling. (See FEIR, p. 3.7-19.) The EIR’s refusal to consider a range of alternatives as required by CEQA, including a reduced-intensity Project alternative, is also concerning as it prevents the public and decisionmakers from meaningfully considering other less impactful options to the proposed Project.

A. The FEIR Fails to Cure the DEIR’s Deficiencies by Provid ing Substantial Evidence to Support its Baseline Assumptions.

The City’s prior comments urged the Port to recirculate the DEIR with substantial evidence to support its baseline assumptions regarding future conditions under the No Project and Proposed Project scenarios. This evidence would allow readers to glean whether those future conditions are, in fact, reasonably likely to occur and, if not, what contributions the proposed Project may make toward the increases in future passengers. The FEIR unfortunately provides little actual substantial evidence to support the EIR’s assumed future baseline scenarios. Instead, the FEIR doubles down on the assumption that the Project will not cause any foreseeable increases in passengers or enplanements. In doing so, the FEIR understates the true direct and indirect impacts of the Project.

1. The FEIR fails to provide substantial evidence to justify reliance on 2019 baseline conditions only.

The chief purpose of an EIR is to provide the public and decisionmakers with the “most accurate and understandable” information regarding a proposed project’s significant environmental impacts on the “physical conditions which exist within the area.” (CEQA Guidelines, § 15125, subd. (a); Pub. Resources Code, § 21060.5; Save Our Peninsula Committee, supra, 87 Cal.App.4th at p. 120.) Accordingly, the EIR’s baseline must reflect the “realized physical conditions on the ground” that “will give the public and decision makers the most accurate picture practically possible of the project’s likely impacts.” (San Joaquin Raptor/Rescue Center v. Merced, supra, 149 Cal.App.4th at p. 658; Neighbors for Smart Rail v.

Exposition Metro Line Construction Auth. (2013) 57 Cal.4th 439, 449.)

Alternatively, where environmental conditions are expected to change during the environmental review period, the lead agency may consider environmental conditions over “a range of time periods.” (Communities for a Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 327–328 (CBE v. SCAQMD).) However, a “temporary lull or spike in operations that happens to occur at the time environmental review for a new project begins should not depress or elevate the baseline.” (Id. at p. 328.) Nor should an EIR’s baseline relying on “merely hypothetical conditions” that “compar[e] the proposed project to what could happen, rather than to what was actually happening,” for doing so results in “illusory comparisons that can only mislead the public as to the reality of the impacts and subvert full consideration of the actual environmental impacts.” (Id. at p. 322, original italics.) Instead, “the comparison must be between existing physical conditions without the [proposed] Project and the conditions expected to be produced by the project. Without such a comparison, the EIR will not inform decision makers and the public of the project’s significant environmental impacts, as CEQA mandates.” (Id. at p. 328; see Pub. Resources Code, § 21100.) Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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9 Despite these requirements, the FEIR still uses 2019 as its baseline year of operations, citing decreased aviation activity caused by the COVID-19 pandemic, and even though the Port notified the public that it was preparing a draft EIR for the Project in 2021 (NOP). (FEIR, p. 2-8; see FEIR, Appendix A, p. 3 [NOP published May 7, 2021].) While the City understands that the COVID-19 pandemic created highly unusual conditions, it remains unclear why the FEIR could not have averaged historic demand and airport conditions from the years 2019, 2020, and 2021.

Averaging conditions from these three years would provide a more representative picture of how OAK has recovered since the pandemic, as opposed to solely relying on 2019’s more inflated numbers.

Moreover, averaging those three-year conditions would be more accurate given that OAK’s current airport operations have yet to return to 2019’s numbers. While OAK saw a total of 6,689,457 passenger enplanements in 2019, the airport saw only 5,520,812 enplanements in 2023—i.e., a 15+% decrease in passenger activity.
4 Given this stark drop in enplanements,
existing conditions in and around the airport have correspondingly changed. As such, the FEIR’s failure to account for these changes results in an improperly “elevat[ed] baseline,” which, in turn, “provide[s] an illusory basis for [the EIR’s] finding of no significant adverse effect[s] despite an acknowledged increase in” air quality and GHG emissions and noise levels. (CBE v. SCAQMD, supra, 48 Cal.4th at p. 322; see, e.g., FEIR, Appendix P, p. P-231 [Response 13: “The EIR explains that on-site construction noise could exceed the City’s noise limits”].)

Because the FEIR failed to adjust its analyses or passenger forecasts based on these changed numbers, the Port’s significance determinations remain unsupported by substantial evidence. (CEQA Guidelines, § 15088.5, subd. (e); Laurel Heights II, supra, 6 Cal.4th at p. 1133; see We Advocate Through Environmental Review v. County of Siskiyou (2022) 78 Cal.App.5th 683, 695 (WATER).)

2. Substantial Evidence does not support t he FEIR’s presumption that the Project’s expanded airport facilities will not induce any future passenger demand and enplanements.

The City remains concerned that the Project’s additional terminals, gates, and parking lots will result in a greater number of enplanements, and in turn, additional unmitigated air quality, GHG, noise, and traffic impacts from those enplanements and the additional aircraft the airport will be able to accommodate after completion of the Project. Instead of meaningfully analyzing what future conditions would look like under the Project and No Project scenarios, the FEIR still reasons that the need for expansion stems from anticipated increases in demand, and that there is no correlation between a greater number of terminals and passenger growth. (FEIR, Appendix C, pp. 11–16.) Substantial evidence does not support the EIR’s future year scenarios and growth assumptions due solely to increased demand. At least some growth will occur as a consequence of the Project.

4 See Federal Aviation Administration (FAA), Final CY Enplanements at All Commercial Service Airports (Oct. 2, 2024), available at: https://www.faa.gov/sites/faa.gov/files/2024- 10/cy23-commercial-service-enplanements.pdf.

Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
10 The EIR’s baseline assumptions defy common sense. Adding, for example, 16 gates and 2,000 additional parking spaces would not be needed or included in the Project if OAK could accommodate the projected future demands as currently constructed. The FEIR fails to explain, based on substantial evidence, how increased capacity via 16 new gates will not directly correlate to greater flight activity and traffic/vehicle miles travelled (VMT)—it simply concludes that this is not the case. CEQA requires more. (Laurel Heights Improvement Assn. v. Regents of University of Cal. (1988) 47 Cal.3d 376, 404 (Laurel Heights I) [“Conclusory comments in support of environmental conclusions are generally inappropriate”]; see also Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155, 175 [common sense is an important consideration at all levels of CEQA].)

In its response to comments raising this concern, the FEIR presents data from four medium-hub airports to show the number of enplanements before and three years after each airport opened a new passenger terminal building. (See FEIR, Appendix P, pp. P-39–P-40 [Table P-4].) The FEIR relies on this sampling of enplanement numbers to conclude that “there is no correlation between the construction of the passenger terminal building and an increase in annual enplanements.” (Ibid.) Table P-4’s numbers, however, are either wrong or misleading. For example, based on the Table’s cited data source
5, the Louis Armstrong New Orleans
International Airport encountered 6,874,111, not 6,784,869, passenger enplanements in 2019— i.e., the year its new terminal opened. (Id. at p. P-40.)

Moreover, given that the FEIR’s baseline data relies on enplanement predictions for 5 to 15 years from now (i.e., 2028 and 2038), it’s unclear why the Table only presents enplanement data for the three years that followed the airports opening their new terminals. Data for the Table’s remaining years reveals a stark increase in passenger enplanements. For example, between 2015 and 2016, passenger enplanements at the Indianapolis International Airport jumped from 3,889,567 to 4,216,766, respectively; and increased from 4,343,722 enplanements in 2017 to 4,655,847 in 2018—i.e., 10 years after the airport’s new terminal opened. 6 The same is true for the Sacramento International Airport. From 2016 to 2017, passenger enplanements rose from 4,969,366 to 5,341,595, and continued to rise to 6,454,413 by 2019— i.e., 8 years after opening a new terminal. While the FEIR summarily concludes that these trends are solely due to market demand, it fails to provide any other substantial evidence to assure the public that modernizing runways and constructing new terminals does not induce additional passenger enplanements, as this data seemingly otherwise reveals. As such, absent more “empirical information, scientific authorities or explanatory information,” the FEIR’s conclusory responses to the public’s comments on this issue “fail to crystallize [these] issues, and afford no basis for a comparison of the problems caused by the [P]roject.” (Environmental Protection Information Center, Inc. v. Johnson (1985) 170 Cal.App.3d 604, 628.)

5 See Federal Aviation Administration (FAA), Passenger Boarding (Enplanement) and All- Cargo Data for U.S. Airports, CY 2023 Passenger Boarding Data, available at:
https://www.faa.gov/airports/planning_capacity/passenger_allcargo_stats/passenger. 6 See ibid.

Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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11 The FEIR’s confusing conclusion is compounded by its failure to sufficiently explain how passenger growth will occur and its failure to account for new information made available since it published the NOP. Though the FEIR concedes that migration patterns within the Bay Area and the availability of certain airlines at OAK will spur increased demand, it contends that demand, alone, will more than double passenger activity over the next decade and a half— stretching from 5,520,812 enplanements in 2023 to well over 12,000,000 by 2038.

Despite warning from the FAA that these growth forecasts should take constrained conditions into account that would curb OAK’s ambitious growth projections, the forecasts provided in FEIR Appendix C remain “unconstrained” and predict this rapid growth through model year 2038. (FEIR, Appendix C, p. 11.) Former OAK Aviation Director Bryant Francis repeated this concern when he informed a Southwest Airlines representative that much of the forecast work would need to be redone if the Project was delayed and did not “proceed in the early fall” of 2020. (See FEIR, Appendix P, p. P-378.)

As such, utilizing such a high inflated and unconstrained baseline minimizes the extent of the Project’s impacts and fails to reflect the “realized physical conditions on the ground,” which in turn inflates future conditions under anticipated scenarios thereby underestimating the significance of the Project’s environmental impacts. (See CBE v. SCAQMD, supra, 48 Cal.4th at p. 322 [a baseline approach that uses hypothetical or conditions other than the existing environment “results in illusory comparisons that can only mislead the public as to the reality of the impacts and subvert full consideration of the actual environmental impacts, a result at direct odds with CEQA’s intent”].) The FEIR’s future baseline forecasts are therefore unsupported and must be readjusted to provide the public with sufficient information to determine the Project’s true impacts.

B. The FEIR’s Vague and Ambiguous Project Description P recludes Informed Decisionmaking.

The City remains unable to ascertain the full scope of the proposed Project based on the FEIR’s Project Description. “An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.” (County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185, 193.) An EIR cannot sufficiently provide decisionmakers with an accurate view of a proposed project unless it provides a comprehensive description of it. (Stopthemillenniumhollywood.com v. City of Los Angeles (2019) 39 Cal.App.5th 1, 18–19; Berkeley Keep Jets Over the Bay Committee v. Board of Port Com’rs (2001) 91 Cal.App.4th 1344, 1358 (Berkeley Jets) [“a curtailed or distorted project description may stultify the objectives of the [environmental] reporting process”].) An EIR’s project description is thus an “indispensable” element that must provide the public and decisionmakers with an accurate, comprehensive understanding of what the project entails and its reasonably foreseeable consequences. (Stopthemillenniumhollywood.com, supra, 39 Cal.App.5th at p. 16; Laurel Heights I, supra, 47 Cal.3d at p. 396.) Accordingly, a project description must include “a general description of the project’s technical, economic, and environmental characteristics, considering the principal engineering proposals if any and supporting public service facilities.” (San Joaquin Raptor/Rescue v. Merced, supra, 149 Cal.App.4th at pp. 654–655, quoting CEQA Guidelines, § 15124, subd. (c).)
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12 Although, in comments on the DEIR, the City and its experts asked the Port to provide more detail about construction activities (nighttime and daytime), the FEIR declined to do so.

Consequently, several necessary elements remain missing from the FEIR’s Project Description.

For example, as to the Project’s construction staging, the FEIR fails to identify which demolition and construction activities (i.e., “Project Components”) will overlap and how long each will last. (FEIR, pp. 2-25–2-26.) Rather, the FEIR merely states that the “stages are general in nature” and can be modified upon Project approval when “detailed design of the project component occurs.” (Ibid.) The DEIR and FEIR also state “it is possible that some construction activity hours would be scheduled during nighttime hours.” (FEIR, p. 3.11-20.) The EIR nevertheless omits any information regarding the possible number of nighttime construction events, how loud those events might be, where they might occur, and what the nighttime construction events would entail, exactly, other than concrete pours. (Ibid.)

The FEIR instead includes a new table of what appears to be raw data in Appendix L [Noise Model Inputs] listing the types of construction equipment to be used along with general noise information and footnotes showing the Project related noise exceedances, based on “the CEQA ambient degradation significance criteria,” mainly on weekends in 2026. (FEIR Appendix L, p. 69-74; Table 3.11-9). The Project Description in the DEIR and FEIR glosses over these exceedances and omits any discussion of how and when construction activities will overlap, how construction will be phased, and what the total number of daily construction-related truck trips will be.

The City and the public also remain in the dark about the full scope of the Project at buildout. The FEIR continues to only provide a vague, fleeting summary of the Project’s various components and construction activities, even though, upon closer review, development, and operation will entail nearly 40 different components that span six stages of extensive demolition and construction. For example, the Project will demolish several existing terminal buildings and cargo facilities and replace them with structures nearly twice their size, but the FEIR still fails to provide any specific details about basic building details, such as site plans with illustrative massing and elevations. (See, e.g., FEIR, pp. 2-15–2-18, 2-23–2-24.)

Instead, the FEIR repeatedly concedes that many of these Project components have not yet been designed or finalized “as of the completion of the EIR.” (See FEIR, Appendix P, p. P- 247 [Response 74 explains that the design of the Upland Lot “has not been finalized as of the completion of the EIR”].) Similarly, but perhaps more troublingly, the public still knows nothing about the final size, appearance, cross-sections, or architectural nature of the Project’s brand new, 830,000-square-foot terminal that will feature upwards of 25 new aircraft gates, or the 100,000-square-foot replacement cargo building that will feature up to 25 remote and cargo aircraft parking positions, “[d]epending on the final layout and aircraft size.” (FEIR, pp. 2-17, 2- 23–2-24.) The FEIR’s failure to provide these “technical characteristics” violates CEQA’s basic requirement that an EIR provide an accurate and stable project description. (Stopthemillenniumhollywood.com, supra, 39 Cal.App.5th at p. 19 [project description that failed to include “site plans, cross-sections, building elections, or illustrative massing to show what buildings would be built, where they would be sited, what they would look like, and how many there would be” violated CEQA].)
Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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13 The same is true for the Project’s various utility improvements. The FEIR explains that the Project will relocate and expand the airport’s fuel distribution system “to support the net increase in the number of aircraft gates and relocation of gates.” (FEIR, pp. 2-24–2-25.) The fuel system will be designed to provide a loop in the system to increase reliability and will also require construction of “a roadway…to provide access to the expanded fuel farm.” (FEIR, p. 2-

25.) However, the final details of what these upgrades will ultimately entail remain undisclosed, presumably because “[t]echnical capacity studies would be completed to determine the extent of the modifications, expansions, relocations, and upgrades.” (Ibid.) Those technical capacity studies could have been completed before release of the DEIR so the public could understand what the Port intends to build, exactly, and what the foreseeable environmental impacts could be to air quality and GHG emissions, water quality, noise, and aesthetics. (See Stopthemillenniumhollywood.com, supra, 39 Cal.App.5th at p. 19 [where there were “no practical impediments” as to why developer could not have provided accurate, stable, and finite description of what it intended to build, EIR’s cursory project description precluded informed public comment]; see also San Joaquin Raptor/Rescue v. Merced, supra, 149 Cal.App.4th at p. 655 [“a curtailed, enigmatic or unstable project description draws a red herring across the path of public input”].) In the absence of those studies, the EIR provides no further information on key details, such the type and volume of fuel stored, the type, quantity, and size of fuel storage equipment, or whether any fuel pipelines will need to be changed or rerouted. CEQA requires more.

Ultimately, the dearth of any meaningful detail in the EIR’s Project Description begs the question: how can the Board or the public meaningfully evaluate and balance the Project’s purported benefits against its environmental costs if they have no idea what will ultimately be built? The FEIR’s failure to include any specific details—apart from a few cursory sentences— “does not meet [CEQA’s] requirement of a stable or finite proposed project [description]” and instead only continues to thwart informed public participation and decisionmaking. (Stopthemillenniumhollywood.com, supra, 39 Cal.App.5th at p. 18; San Joaquin Raptor/Rescue v. Merced, supra, 149 Cal.App.4th at p. 655 [“only through an accurate view of the project may the public and interested parties and public agencies balance the proposed project’s benefits against its environmental cost, consider appropriate mitigation measures, assess the advantages of terminating the proposal and properly weigh other alternatives”].) Consequently, the foreseeable direct, indirect, and cumulative impacts of the Project—particularly those to air quality, GHGs, noise, and traffic—remain unanalyzed and unmitigated. (See Communities for a Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 84–85 (CBE v. Richmond) [project description that presented “such conflicting signals to decision makers and the public about the nature and scope of the activity being proposed…was fundamentally inadequate and misleading”].)

III. The FEIR Lacks Substantial Evidence and Fails as an Informational Document.

The purpose of an EIR is to provide “detail sufficient to enable those who did not participate in its preparation to understand and to consider meaningfully the issues raised by the proposed project.” (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1197.) CEQA requires that an EIR be detailed, complete, and reflect a good Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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14 faith effort at full disclosure regarding a project's significant environmental effects to inform the public and allow decisionmakers to make intelligent, informed decisions when considering whether to approve a proposed project. (CEQA Guidelines, § 15151.) Consistent with this requirement, an EIR’s information regarding a project’s impacts must be “painstakingly ferreted out.” (Environmental Planning and Information Council v. County of El Dorado (1982) 131 Cal.App.3d 350, 357.)

The FEIR still fails to substantiate many of its conclusions regarding the Project’s impacts to air quality and GHG emissions, noise, and transportation/traffic. The dearth of any mitigation measures in the FEIR’s MMRP, particularly for the few significant impacts that are identified, is even more troublesome. The FEIR inexplicably lacks any substantial evidence to justify its exclusion of any mitigation measures, such as those the City and its experts proposed in their comments on the DEIR. For these reasons, the Port should revise and recirculate the EIR to incorporate binding mitigation measures that will ensure the Project’s potentially significant and unavoidable impacts do not harm vulnerable neighboring communities, such as the residents of Alameda. (See Attachment C.)

A. The FEIR fails to identify and mitigate the Project’s significant air quality, GHG and health related impacts.

In addition to the comments herein, please find enclosed as Attachment A, a letter on the FEIR prepared by air quality expert Ms. Erin Sheehy, LEED AP and President of Environmental Compliance Solutions. The City supplements Ms. Sheehy’s comments regarding the FEIR’s ongoing inadequacies in analyzing air quality, GHGs, and health risks with the following comments.

1. Substantial evidence does not support the EIR’s air quality and GHG analysis.

The FEIR fails to address the City’s substantive environmental comments on the DEIR.

In particular, the City noted that DEIR Section 3.3.2.3 and the Air Quality Protocol in Appendix F failed to identify any significant air quality emissions related to construction, despite the magnitude of the Project and the many stages of significant construction activities that will span 5+ years. Instead of providing additional data about on- and off-site construction emissions and their ensuing impacts, the Port simply responded that the EIR “discussed construction emissions.” (FEIR, Appendix P, p. P-233 [Response 18].) Close review of the FEIR reveals that no such analysis exists, thereby precluding the public from meaningfully ascertaining the full extent of construction-related emissions impacts. (See, e.g., FEIR, pp. 3.3-25–3.3-26 [Table 3.3- 8 only presents “average daily construction emissions estimates” without specifying which emissions will occur on- vs. off-site]; see also FEIR, Appendix F, pp. 892–897 [providing new tables and data, without further explanation, of GSE and GAV emissions, without specifying which sources will occur on- vs. off-site].)

The City also remains troubled by the FEIR’s conclusion that, although overall particulate matter (PM) emissions may increase under the proposed Project scenarios, those increases would still occur, regardless of whether the Project moves forward, due to forecasted Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
15 market demand. (FEIR, pp. 3.3-30–3.3-31.) In arriving at this assumption, the FEIR fails to meaningfully look at the cumulative air quality and GHG impacts associated with existing plus Project construction and operational emissions, as well as the long-term potential for the Project’s additional gates to enable more growth and passenger enplanements (and in turn, additional emissions) beyond the numbers predicted in the EIR. (See FEIR, Appendix F, pp. 892–897.)

Notably, the new data and construction modeling contained in FEIR Appendix F fail to explain the various construction phasing assumptions, much less provide the “construction schedules for aviation activities” or the “dates and sizes of the Project components” that the modeling relied on. (FEIR, pp. 3-3.21–3.3-22.) As a result, the EIR appears to have analyzed each activity separately, rather than cumulatively (or concurrently), and thus significantly understates the foreseeable maximum daily emissions of the Project, including as to future assumed levels of operations at the airport. (See Attachment A, pp. 6–7.)

The City and Ms. Sheehy are similarly concerned about conflicting data and conclusions presented in the FEIR. For example, the Human Health Risk Assessment (HHRA) in Appendix E identifies diesel particulate matter as the primary driver of cancer and chronic non-cancer health risks. (Attachment A, pp. 3–5.) Despite this concession, the FEIR somehow concludes— without any further explanation—that expanding the airport will result in a significant reduction of cancer-causing emissions and cancer cases in surrounding residential neighborhoods. (See FEIR, pp. 3.3-40–3.3-41.) Ms. Sheehy noted this in her comments on the DEIR, but the Port’s responses thereto fail to substantiate how the EIR arrived at this conclusion. (See FEIR, Appendix P, pp. P-107–P-109 [Comments 44, 50]; cf. id. at pp. P-239–P-241 [Response 44], p.

P-243 [Response 50]; also cf. Berkeley Jets, supra, 91 Cal.App.4th at p. 1371 [EIR violated CEQA due to “pervasive” “conclusory and evasive” responses to comments that failed to support the EIR’s “many conclusory statements by scientific or objective data”].)

This conclusion is even more concerning given the FEIR’s assumption that the net change in existing operational emissions will not exceed the thresholds of significance prescribed by BAAQMD, despite the presented data suggesting otherwise. In particular, FEIR Tables 3.3-11 and 3.3-12 describe the net change in existing operational emissions compared to those anticipated in the years 2028 and 2038. Both tables specify that, in the year 2019, operational PM2.5 emissions equated to 58.2 lbs/day. By 2028, those emissions will increase to

73.8 lbs/day. (FEIR, p. 3.3-30 [Table 3.3-11].) By 2038, PM2.5 emissions will increase to 85.5 lbs/day. (FEIR, p. 3.3-31 [Table 3.3-12].)

The FEIR specifies that the threshold of significance for PM2.5 is 54 lbs/day, but then confusingly and inexplicably concludes that anticipated PM2.5 emissions in 2028 (i.e., 73.8 lbs/day) and 2038 (i.e., 85.5 lbs/day) will still be “below” that threshold. (FEIR, pp. 3.3-30, 3.3-

31.) The FEIR’s impact conclusions are erroneous because 73.8 and 85.5 lbs of PM2.5 per day unquestionably exceed the 54 lbs/day threshold. To this end, the FEIR concludes that the increase in these cancer-causing emissions will yield a significant reduction in cancer cases in surrounding neighborhoods. Again, the EIR’s conclusions are unsupported. The vague and missing mitigation in the EIR also does not substantiate the impact conclusions reached.

Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
16 The projected significant increases in airport operations would also be expected to result in a significant increase in ground support equipment (GSE) and other airport engines and equipment. However, emissions from GSE continue to be missing from the FEIR’s air quality and GHG analyses. In fact, the air quality analysis still fails to include any quantification or analysis of impacts associated with offsite truck trips related to Project construction and hauling. (See, e.g., FEIR, Appendix F, pp. 44, 77–78, 111–112, 145, 212, 253–254, 295–296, 336–337, 414–415.)

Finally, the FEIR’s extremely cursory analysis of the Project’s consistency with applicable GHG reduction plans fails to provide substantial evidence to support its conclusion that the Project’s incremental increase in GHG emissions from construction and operation activities would be less than significant, particularly without the imposition of any feasible mitigation, such as the purchase of carbon offsets through a CARB approved cap-and-trade system, or the preparation of a GHG Reduction Plan for the Project that contains performance standards and thresholds of significance (e.g., no net increase in GHG emissions). The FEIR omits this information. (See FEIR, p. 3.7-21 [Section 3.7.3.3].)

The FEIR nevertheless concedes that Project construction will generate an estimated 10,644.90 mtCO2e of additional GHG emissions. (FEIR, p. 3.7-19 [reasoning that “when considered in terms of a project’s ‘fair share’ of GHG emissions” construction related GHG emissions are less-than-significant]; see also, id. at pp. ES-5–ES-6.) The FEIR also vaguely states the Port “would implement all feasible GHG reduction measures that are within its power and thus would do its fair share to help California meet its goal of carbon neutrality by 2045.” (FEIR, p. 3.7-21.) This type of “de minimis” reasoning has been rejected by the courts. (See, e.g., Friant Ranch, supra, 6 Cal.5th at p. 522; Gray, supra, 167 Cal.App.4th at p. 1123; CBE v.

Richmond, supra, 185 Cal.App.4th at p. 93.)

The FEIR does not, however, specify any of the GHG reduction plans or measures the Port will implement to ensure the Project helps meet the State’s carbon neutrality goals. (Ibid.) Even if the Port had identified a Plan or Program, that document would have had to be adopted after being subject to environmental review, as explained above. (See CNPS, supra, 170 Cal.

App. 4th at pp. 1049–1056.) There simply is no mitigation required for Project-related GHG emissions in the EIR. (Cf. E. Oakland Stadium Alliance v. City of Oakland (2023) 89 Cal. App. 5th 1226, 1253–1254 [upholding mitigation measure committing city to “no net additional” GHG emissions over the life of the project, including from construction, by prohibiting approval of any project construction-related permits until project sponsor had retained a qualified air quality consultant to develop a Project-wide GHG Reduction Plan that specified emission reduction measures sufficient to reduce or offset project related emissions such that the resulting emissions would be below the City’s “no net additional” threshold of significance].)

2. The few mitigation measures in the FEIR fall short of CEQA’s requirements.

The FEIR’s unsupported conclusions about the Project’s air quality and GHG impacts are compounded by the absence of any cognizable mitigation measures, despite conceding that at least some impacts will be significant and unavoidable (e.g., ROG, NOx, PM2.5). (See City of Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
17 San Diego v. Bd. of Trustees of Cal. State University (2015) 61 Cal.4th 945, 957; see Pub.

Resources Code, § 21002.1, subd. (b) [“Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so” (italics added)]; see also CEQA Guidelines, § 15041, subd. (a) [a “lead agency for a project has authority to require feasible changes in any or all activities involved in the project in order to substantially lessen or avoid significant effects on the environment, consistent with applicable constitutional requirements”].)

For these reasons, the City and other commenters, including BAAQMD, proposed numerous feasible mitigation measures that the Port could have easily incorporated into the FEIR’s MMRP. (See, e.g., FEIR, Appendix P, pp. P-71–P-74.) Yet, it did not and the FEIR fails to explain why. (Cf. King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814, 869 (King & Gardiner Farms) [failure to disclose specific information about mitigation measures violates CEQA]; Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1029 (LAUSD) [FEIR “must respond to specific suggestions for mitigating a significant environmental impact unless the suggested mitigation is facially infeasible”].)

For example, the FEIR refers to BAAQMD’s BMPs for reducing construction-related emissions yet fails to require OAK to comply with them. (See FEIR, p. 3.7-19 [stating BMPs identified by BAAQMD for construction related GHG emissions will be implemented “as feasible and applicable,” without including any performance standards].) The BMPs also are omitted from the MMRP. As such, the public has no way of knowing which measures will be implemented and followed, if any, and which air quality emissions from the 5+ years of construction, if any, will be reduced to less-than-significant. The FEIR’s failure to prescribe any performance criteria or binding language explicitly violates CEQA. (Federation of Hillside and Canyon Assns. v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1260–1261 [“the agency ‘shall provide that measures to mitigate or avoid significant effects on the environment are fully enforceable through permit conditions, agreements, or other measures...The purpose of these requirements is to ensure that feasible mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded.”]; CBE v.

Richmond, supra, 184 Cal.App.4th at pp. 92–94 [failure to impose mitigation measures with “criteria for success” and performance standards violated CEQA].)

The measures that the FEIR and MMRP do purport to impose are inadequate. The FEIR indicates, for example, that the Port will continue to provide electrical infrastructure throughout the new terminal and cargo area and will “commit to providing environmental awareness training” to onsite workers to reduce significant cancer risks. (FEIR, pp. ES-5–ES-6.) But “committing to” providing environmental awareness training does not affirmatively require the Port to implement a measure that will tangibly reduce significant, harmful air emissions. (Berkeley Jets, supra, 91 Cal.App.4th at p. 1371 [Port’s “EIR’s approach of simply labeling the effect ‘significant’ without accompanying analysis of the project’s impact on the health of the Airport’s employees and nearby residents is inadequate to meet the environmental assessment requirements of CEQA”].) The EIR is otherwise devoid of any criteria for measuring the effectiveness of these efforts. (Cf. Friant Ranch, supra, 6 Cal.5th at p. 523; see also CEQA Guidelines, § 15126.4, subd. (a)(1)(B).)

Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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18 For GHG emissions, the FEIR similarly, albeit improperly, relies on various “initiatives” to conclude any ensuing impacts will be mitigated to less-than-significant levels. (See, e.g., FEIR, Appendix P, p. P-233 [Global Response G].) Not only does the FEIR omit these “initiatives” from the EIR and MMRP, but it also fails to describe what these initiatives entail, how the Project will implement them, or how the Port will enforce them. (Ibid.) Given that the FEIR states that ,“for conservative analysis purposes, none of these initiatives have been reflected in the calculations of GHG emissions,” it remains unclear how “[c]ontinued implementation of [these initiatives] would significantly reduce both construction-phase and operational GHG emissions.” (FEIR, pp. 3.7-16–3.7-17.)

For these reasons, the City remains deeply concerned with the FEIR’s failure to identify and mitigate the Project’s significant air quality, GHG, and health risk impacts. As more fully detailed in Attachment C hereto, the City recommends that the Port commit to specific air quality and GHG measures during construction. These measures could include requiring the use of Tier 4 and electrical construction equipment, and RNG/CNG or other renewable diesel fuel for onsite and offsite trucks as conditions of a construction bid or other contract.

For Project design and operation, the Port should install cool roofs on newly-developed buildings and over surface parking lots to reduce the heat island effect. The Port should also commit to ensuring all buildings and the new terminal will achieve LEED certification or 100% electrification, which includes, but is not limited to, exploring solar panels as an alternative source of on-site energy generation. Similarly, while the Port has indicated that it will continue to install electrical infrastructure and EV charging throughout the airport, the Port should provide more detail as to where these amenities will be installed and also strive to provide more EV charging stations at a percentage that exceeds the minimums prescribed by the Oakland Municipal Code. Finally, the Port must adopt a GHG reduction plan and commit to no-net increase in GHG emissions, which could involve purchasing renewable energy or installing such systems throughout the airport, reducing energy consumption, monitoring the efficiency of heating, ventilation, and cooling system, and purchased low- or no-emission vehicles for inner- airport use. In the absence of these or similar measures, the EIR remains legally inadequate.

B. The FEIR fails to identify the reasonably foreseeable significant adverse noise impacts of the Project and mitigate those impacts to the extent feasible.

In addition to the comments herein, please find enclosed as Attachment B a letter on the Final EIR prepared by airport noise expert Mr. John (“Jack”) Freytag, PE, INCE Bd. Certified of Freytag & Associates, LLC. The City supplements Mr. Freytag’s comments regarding the FEIR’s ongoing inadequacies in analyzing the Project’s noise impacts with the following comments.

1. The FEIR neglects to identify all nearby sensitive receptors , the existing degraded baseline conditions of the Project area and the Project’s cumulative contributions to noise.

In adopting CEQA, the Legislature declared that “it is the policy of the state to take all action necessary to provide the people of this state with…freedom from excessive noise…Thus, Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
19 through CEQA, the public has a statutorily protected interest in quieter noise environments.” (Berkeley Jets, supra, 91 Cal.App.4th at p. 1380.) Despite this directive, the FEIR declines to adequately analyze the Project’s inevitable noise impacts.

In particular, the FEIR’s isolated analyses of the Project’s potential noise impacts understate the real-world conditions of the residents who live by the airport. The OAK Airport Land Use Compatibility Plan (OAK ALUCP) recognized the proximity of several sensitive-noise receptors in Alameda that fall within the Airport’s area of influence (AIA) and adjacent to the 60-CNEL range, including: Tillman Park, Leydecker Park, Godfrey Park, Doc Harrington Park, Amelia Earhart Elementary, Chinese Christian School, a daycare center, and several places of worship. (2010 OAK ALUCP
7, p. 4-3.)

The FEIR, however, claims that there are no sensitive receptors within the CNEL range. (FEIR, p. 3.11-19.) This conclusion appears to stem from the FEIR’s CNEL contour map, which is notably drawn much narrower than that contained in the OAK ALUCP. (Cf. FEIR, p. 3.11-18 [Fig. 3.11-3] with 2010 OAK ALUCP, p. 3-27 [Fig. 3-3].) The EIR prepared for the City’s General Plan 2040 update also debunks the FEIR’s conclusion that there are no sensitive receptors in Alameda by providing a more detailed picture of the City’s degraded noise setting. (See Alameda General Plan 2040 Draft EIR
8, p. 13-11.) The Alameda General Plan 2040 EIR
explains that “[a]ircraft overflights are the most significant sources of noise impacts in Alameda’s residential neighborhoods, with some Alameda residents currently experiencing single-event noise in excess of 80 dBA on a nightly basis.” (Ibid.) The EIR relies on the OAK ALUCP’s contour maps to show how noise from the airport significantly impacts sensitive receptors within Alameda, particularly those at Bay Island Farm who are located within the airport’s 65-dBA noise contour. (Id. at pp. 13-11–13-12 [see Fig. NOI-3].)

For these reasons, the City has repeatedly emphasized to the Port that “[a]ircraft noise generated by the Oakland International Airport is a significant source of existing noise within the environment.” (Alameda General Plan 2040 Draft EIR, p. 13-17.) The City has therefore committed to “[s]upport[ing] the Port of Oakland in continuing to maintain a permanent full-time noise monitoring system that will (a) measure noise continuously, (b) separate OAK noise events from other noise source events, particularly overflights form other airports, (c) measure and augment CNEL values, (d) provide information on excessively noisy aircraft operations, (e) monitor effectiveness of noise abatement programs, and (f) meet the performance specifications of the California Noise Standards.” (Id. at p. 13-15.) Moreover, as part of its obligations under the General Plan, the City must obtain assurance from the Port that future noise exposure to Alameda from future aircraft emissions will be controlled to ensure that projected noise levels do not exceed the 65-dB CNEL contour. (Id. at p. 13-14.) This can be achieved via a permanent, full-time noise monitoring system that will ensure compliance with California Airport Noise standards and the ALUCP. (Ibid.)

7 Incorporated by reference herein and available online at:
https://www.acgov.org/cda/planning/generalplans/documents/OAK_ALUCP_122010_FULL.pdf 8 Incorporated by reference herein and available online at: https://irp.cdn- website.com/f1731050/files/uploaded/Alameda%20General%20Plan%202040%20DEIR%20Vol %20I.pdf.

Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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20 Given the concerning discrepancies described above, the City again urges the Port to conduct actual noise monitoring to identify existing conditions in and around the OAK airport.

Actual noise monitoring data would provide a more accurate picture of the total noise environment and how additional aircraft operations would affect already impacted communities, such as Alameda’s Bay Farm Island community, which neighbors the airport.

The need for the EIR to identify actual existing noise levels using monitoring data is imperative given that the new SEL analysis contained in FEIR Appendix Q does not relate to any prescribed noise criteria, nor does it discuss or address noise impacts on surrounding communities. (See Attachment B, pp. 5–6.) Otherwise, the FEIR “cannot employ a methodological approach in a manner that entirely forecloses consideration of evidence showing impacts to the neighboring region, impacts beyond [the] [P]roject’s boundaries, or…impacts to areas sitting beyond” the arbitrarily narrow geographic area it set. (Sierra Watch v. County of Placer (2021) 69 Cal.App.5th 86, 107.)

The Project’s significant ongoing (5 + year) construction and demolition timeframe further underscores the need for gathering ambient acoustic baseline data as part of the EIR process. The FEIR instead improperly defers gathering this information until after Project construction begins, thereby depriving the public and decisionmakers of an opportunity to meaningfully consider whether ensuing Project-related noise (including from construction activities) will be cumulatively considerable and, therefore, significant. (See FEIR Appendix R, p. R-18; cf. Berkeley Jets, supra, 91 Cal.App.4th at p. 1375 [despite comments from local community members about ongoing noise disturbances from OAK, EIR did “not even mention, much less analysis,…noise impacts” because those communities fell outside the 65-dB CNEL corridor].)

As Mr. Freytag’s comment notes, the new noise modeling contained in FEIR Appendix M does not present data in an intelligible manner that would allow the public to audit the Project’s traffic volume, aircraft models, departure and arrival routes, average weather conditions, etc. (Attachment B, p. 1.) Nor does the Appendix assess single event descriptors, but instead relies on DNL and CNEL metrics that have been shown to understand public annoyance. (Id. at p. 2.) Thus, the FEIR’s failure to conduct these analyses and instead summarily conclude that the Project’s impacts to noise may or may not be significant “is derived without any meaningful analysis of existing ambient noise levels, the number of additional nighttime flights that will occur under [the Project], the frequency of those flights, to what degree single overflights will create noise levels over and above the existing ambient noise level at a given location, and the community reaction to aircraft noise, including sleep disturbance.” (Berkeley Jets, supra, 91 Cal.App.4th at pp. 1381–1382; see Attachment B, pp. 5–6 [explaining that the FEIR’s new sleep study relies on arbitrary noise reduction assumptions but fails to provide other details such as the time between flyover events, background noise environments, and other missing data points that render the analysis dubious].)

The absence of this data is also particularly troubling given the potentially significant adverse noise impacts that will result from the heavy-duty trucks that will be used during the Project’s ongoing construction activities. Despite identifying various demolition activities that Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
21 will overlap with other construction related activities (see FEIR, Table 3.3-7), the FEIR fails to identify or consider the maximum number of daily construction-related truck trips that will occur, including those that will travel through 98th Avenue to Bessie Coleman Drive and Airport Drive, and from Ron Cowan Parkway to Airport Drive.

Because heavy duty haul trucks used for transporting construction and demolition material are 10 dB to 15 dB louder than noise generated by passenger vehicles, the FEIR lacks any evidence to support its conclusion that construction noise levels will not increase along haul routes because generalized levels of traffic will not double. (See FEIR, p. 3.11-20.) More specifically, and as set forth in Mr. Freytag’s comments, an analysis of anticipated truck trips on these major thoroughfares shows that the Project could generate, at its peak, upwards of 800 heavy trucks per hour on 98
th Avenue and 72 heavy trucks per hour on Airport Drive. (Attachment B, pp. 3–4.) Based on these projected numbers, the 98th Avenue noise projection at 80 dB would significantly exceed the City of Oakland’s Construction Noise Limits shown in FEIR Table 3.11-9. (Ibid.)

The data provided in response to the City’s comment on this issue further highlights the need for gathering baseline acoustic conditions before Project construction starts. The FEIR contends that the highest average estimated daily construction vehicle trips will be approximately 74.2 trips in the year 2026, which is an increase of about 0.2% over existing daily vehicle trips. (FEIR, Appendix P, p. P-232 [Response 14].) The chart that provides this data, however, shows that average estimated daily construction vehicle trips will drop from 74.2 trips in 2026 to only 8.5 daily trips in 2027. (Ibid.) But by year 2028, construction vehicle trips will jump to 46.7 daily trips—a 5x increase from 2027’s numbers. (Ibid.) Therefore, it’s unclear how the FEIR can still conclude that “construction-related traffic noise impacts would not be significant” when its own data shows that construction trip traffic would double on area roadways, which—by the FEIR’s methodology—would produce a 3+ dB increase in noise. (Ibid.)

The EIR’s omission of information regarding baseline noise levels, haul routes, and the number of haul trucks, combined with its numerical discrepancies and conclusions, renders the EIR inadequate because it underestimates Project-related construction and cumulative noise impacts and, as a result, fails to mitigate those significant (direct and cumulative) noise impacts. (See LAUSD, supra, 58 Cal.App.4th at pp. 1025–1026 [EIR was required to address “not the relative amount of noise resulting from the project when compared to existing traffic noise, but whether any additional amount of traffic noise should be considered significant in light of the serious nature of the traffic noise problem already existing around [the project site]; accord, Gray, supra, 167 Cal.App.4th at pp. 1122–1123 [EIR improperly failed to analyze whether traffic noise generated by project, when added to an already high noise environment, would “cause a tipping point of noise problems for the general public,” even though 2.1 dBA noise in isolation would not be noticeable].)

/ / /

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22 2. Because of the existing degraded noise environment around OAK, Project- related increases in noise levels should be considered cumulatively considerable and therefore significant.

As the City noted in its comments on the DEIR, noise from the OAK Airport greatly impacts Alameda citizens’ quality of life. Construction and operation of the Project will only exacerbate those impacts. The City therefore implored the Port to analyze the reasonably foreseeable cumulative impacts associated with combined construction and aircraft noise during the anticipated 5–10-year construction timeline. This is because CEQA is clear: an informationally adequate EIR must analyze potential cumulative noise impacts. (See LAUSD, supra, 58 Cal.App.4th at pp. 1024–1028 [EIR violated CEQA by failing to analyze whether cumulative traffic noise impacts would be significant, particularly when Project would generate additional traffic and thus add more noise to an already existing degraded (noisy) environment]; accord Gray, supra, 167 Cal.App.4th at p. 1123 [same].)

Nevertheless, the FEIR inexplicably declines to engage in a cumulative noise analysis as set forth in CEQA Guidelines section 15130, instead concluding only that:

“[t]he impact thresholds for construction noise and aircraft noise are not assessed using the same metric. Community Noise Equivalent Level (CNEL) and Hourly Equivalent Sound Level (LEQ) represent distinct thresholds for significant impact [sic].”

(FEIR, Appendix P, p. P-232 [Response 15].)

The FEIR’s evasive response fails to meaningfully explain how these differing thresholds prevent the Port from conducting a cumulative noise analysis, particularly when other cumulative noise thresholds remain available. (See Berkeley Jets, supra, 91 Cal.App.4th at p. 1371 [conclusory responses to comments violate CEQA]; see id. at pp. 1370–1371 [the “fact that single methodology does not currently exist…does not excuse the preparation of a [cumulative impact analysis]—it requires the Port to do necessary work to educate itself about the different methodologies that are available”].)

For example, the OAK Master Plan contains “cumulative metrics” for assessing community response to noise based on the total number of events occurring at given hours of the day, including Leq, CNEL, and DNL. (2006 Oakland International Airport Master Plan 9, pp. 85–

86.) The Port could have used one of these metrics to analyze cumulative noise effects of Project construction and operation. (Cf. Berkeley Jets, supra, at p. 1372 [the “CNEL is the 24-hour average sound level, in decibels, obtained from the accumulation of all sound sources” (emphasis added)].) Under CEQA, there is “no authority that exempts an agency from complying with the law, environmental or otherwise, merely because the agency’s task may be too difficult.” (Laurel Heights I, supra, 47 Cal.3d at p. 399.) The Port was required to “use its best effort to find out and disclose all that it reasonably [could]” about the Project’s cumulative noise

9 Incorporated by reference herein and available online at: https://www.iflyoak.com/wp- content/uploads/2024/03/Master_Plan_2006-03_standard-reduced.pdf.

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23 impacts. (Citizens to Preserve the Ojai v. County of Ventura (1985) 176 Cal.App.3d 421, 431.) It did not.

In City of Los Angeles v. Federal Aviation Administration (9th Cir. 2023) 63 F.4th 835 (City of LA v. FAA), the Ninth Circuit Court of Appeal found that, in analyzing impacts for an airport expansion project, the FAA failed to adequately account for the fact that construction equipment would operate simultaneously with airport operations, and in turn, failed to consider whether a significant impact would likely occur because of the combined effects of those sound sources. (Id. at pp. 850–851.) The court noted that the FAA’s “conclusion rest[ed] on an implicit premise that construction noise would be generated by one piece of equipment at a time”—an “assumption [that] defie[d] common sense.” (Id. at p. 851.) Relevant here, the court also rejected the FAA’s argument that it lacked specific construction details to perform such a cumulative noise analysis, noting that “a lack of details about the schedule [did] not give FAA the license to assume the site would be run in an illogical way.” (Ibid.) As such, because the FAA did “not even try to calculate the combined effects from multiple pieces of equipment or the attenuation of that noise at the nearest residence,” its noise analysis was fundamentally flawed and the environmental impact statement (EIS) prepared for the Burbank Replacement Passenger Terminal Project under the National Environmental Policy Act (NEPA) was inadequate. (Id. at pp. 851–852.)

The same deficiencies infect the FEIR’s construction noise analysis here. Despite adding several new pages of construction noise calculation results to Appendix L, the FEIR fails to explain how these newly disclosed noise levels from the individually identified construction equipment relate to, or would exacerbate, previously qualitative exceedances of the CEQA ambient degradation significant criteria. (See FEIR, Appendix L, pp. 69–74; see also FEIR, p.

3.11-21 [Table 3.11-9].) Similarly, the FEIR does not quantify or explain how noise anticipated to be generated from these specific pieces of construction equipment will or will not result in significant increases in direct noise levels, including during the daytime, nighttime, on weekends, or at the sensitive receptor locations identified on Bay Farm Island in Alameda. (FEIR, p. 3.11-21 [see R4, R6, R7, R8, R16].)

By virtue of this missing evidence, the FEIR likewise fails to identify or quantify the Project’s cumulative construction-related noise increases, such as by identifying existing and projected ambient noise levels at identified receptors, including which pieces of construction equipment would overlap during construction activities, for how long, and how those quantified increases would impact identified sensitive receptors. (Cf. City of LA v. FAA, supra, 63 F.4th at pp. 851–853.) Because the FEIR only studies “sound produced by equipment in isolation, the [document] does not contain a ‘reasonably thorough discussion’ of construction noise,” and in turn precludes informed decisionmaking and the public’s ability to determine what additional mitigation measures can and should be imposed. (Id. at p. 852.)

For these reasons, the Port must revise the FEIR to analyze the reasonably foreseeable cumulative impacts associated with the Project’s simultaneous construction and aircraft noise levels, as their combined impact could adversely affect nearby communities, including those in Alameda that fall within OAK’s AIA. As the City’s noise expert explained in his comments on the DEIR and those attached hereto (see Attachment B), this analysis can be conducted Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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24 notwithstanding the differing methodologies for measuring noise. There is no reason why such a critical analysis cannot be conducted as part of the EIR to ensure decisionmakers and the public are adequately informed and all feasible mitigations are imposed.

3. The FEIR improperly defers mitigation of the Project’s reasonably foreseeable significant noise impacts.

The City remains troubled that the few mitigation measures included in the MMRP simply defer the analysis of, and mitigation for, noise impacts. One measure, for example, kicks the can by stating that the:

“Enforcement mechanism [ sic] is completed via continuous noise monitoring during construction. This mitigation measure in Section 3.11.3.1 of the EIR has been revised to include a statement that baseline sound levels will be monitored at the compliance locations prior to the start of construction to establish a baseline to compare against for the 5 decibel (dB) increase threshold. At this time the construction information is preliminary, and the actual construction approach may be different than what is ass umed. For this reason, the EIR states that the construction contractor would be required to provide specific details as to how they will ensure impact thresholds are not exceeded.”

(FEIR, Appendix P, p. P-231 [Response #13, italics added].)

The Third District Court of Appeal in Sierra Watch, supra, 69 Cal.App.5th 86, rejected an analogous measure. There, the court held that a mitigation measure requiring construction contractors to replace “operations and techniques…with quieter procedures where feasible” was inadequate. (Id. at p. 110.) The court reasoned that the measure “only tells construction contractors to be quieter than normal when they can. Although that may be good neighborly advice, it [was] not sufficient as a mitigation measure. It defers until later the determination of which construction procedures can be feasibly changed and how these procedures can be modified to be quieter. And it offer[ed] no instruction on how either of these determinations are to be made.” (Ibid.)

The FEIR’s measure here fails for the same reason. In particular, the measure calls for monitoring noise levels ahead of construction to “establish a baseline to compare against.” But it is the EIR’s responsibility to collect data and establish existing baselines ahead of time so that noise impacts can be adequately analyzed and mitigated for before versus after Project approval. (See Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 306 [deferring environmental assessment to a future date “run[s] counter to that policy of CEQA which requires environmental review at the earliest feasible stage in the planning process” because “[e]nvironmental problems should be considered at a point in the planning process where genuine flexibility remains”].)

The FEIR’s measure, moreover, admits that “construction information is preliminary, and the actual construction approach may be different than what is assumed.” CEQA prohibits the Port from relying on “postapproval mitigation measures adopted during the subsequent design Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
25 review process.” (Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1605, fn. 4 (Quail Botanical Gardens).) The FEIR’s “mitigation measure” may not defensibly be used as a “device to avoid disclosing [actual] Project impacts.” (San Joaquin Raptor/Rescue v. Merced, supra, 149 Cal.App.4th at pp. 663–664; see League to Save Lake Tahoe Mountain, etc. v. County of Placer (2022) 75 Cal.App.5th 63, 122 [mitigation measure that relies on “performance standards that do not exist and may never exist…defers the determination of the impact’s significance to an unknown time and does not sufficiently commit the [lead agency] and the project applicants to mitigating the impact”].)

Finally, the measure tasks the unidentified construction contractor with providing “specific details as to how it will ensure impact thresholds are not exceeded.” CEQA, however, expressly delegates the responsibility to mitigate potential impacts to the Port as lead agency not the contractor. (See California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173, 194 [under CEQA, a public agency cannot charge a developer with the responsibility to study the impact of a proposed project]; see also Sundstrom, supra, 202 Cal.App.3d at p. 306 [lead agency cannot delegate legal responsibility to assess and mitigate environmental impacts by directing project applicant or proponent to conduct future studies and craft corresponding mitigation]; CBE v. Richmond, supra, 184 Cal.App.4th at pp. 92–93 [“the development of mitigation measures, as envisioned by CEQA, is not meant to be a ‘bilaterial negotiation’ between a project proponent and the lead agency after project approval”].) Accordingly, the FEIR’s lone noise mitigation measure remains fundamentally flawed because it improperly defers analysis of, and mitigation for, future construction noise impacts in violation of CEQA. (CEQA Guidelines, § 15126.4, subd. (a)(1)(B) [“Formulation of mitigation measures shall not be deferred until some future time” (emphasis added)].)

Given this, the City once again encourages the Port to revise the FEIR’s noise analysis and adopt mitigation measures proposed by the City and other commenters to ensure local residents are not subject to years of highly disturbing noise from simultaneous Project construction and operation (both onsite and offsite). In particular, and as more fully described in Attachment C, the Port should agree to fund and process additional noise abatement efforts, including: preparation of a construction noise control plan that adheres to a 5-dBA standard (i.e., all Project construction and operation activities shall not be louder than 5 dBA above existing outdoor noise levels); completion of a Part 160 Study to update the Noise Exposure Maps and fund any necessary improvements for sensitive receptors (e.g., noise reducing improvements for residential windows, doors, and HVACs); elimination of nighttime and weekend Project construction activities and requiring construction contractors to avoid noise sensitive times between the hours of 10:00 PM and 7:00 AM.

C. The FEIR fails to adequately analyze or mitigate the Project’s transportation and VMT impacts.

Despite the City’s DEIR comments and the numerous measures recommended to avoid or substantially lessen the Project’s reasonably foreseeable traffic and VMT impacts, the City is disappointed that the FEIR declined to include any of them. The City therefore implores the Port to not only reconsider and reevaluate the Project’s potentially significant transportation impacts, Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
November 19, 2024
26 but also adopt readily available measures to ensure Project construction and operation do not adversely affect local traffic in and around the airport. (See Attachment C.)

1. The FEIR inadequately analyzes the Project’s VMT impacts, particularly when compared to other airport projects.

In crafting a methodology to analyze the Project’s potential VMT impacts, the FEIR must utilize an approach that promotes “the reduction of greenhouse gas emissions, the development of multimodal transportation networks, and a diversity of land uses.” (Pub. Resources Code, § 21099, subd. (b)(1).) To do so, the Port may use one of several criteria, such as: assessing whether VMT exceeds an applicable threshold of significance; qualitatively analyzing the Project’s VMT based on applicable, area-specific factors; or by using models to estimate anticipated VMT. (CEQA Guidelines, § 15064.3, subd. (b).) If, based on these criteria, the Port finds transportation impacts will be “significant,” the FEIR must identify mitigation measures to reduce them to the greatest extent feasible. (Pub. Resources Code, § 21002.1, subd. (a).) To help agencies analyze the environmental impacts associated with VMT, the Governor’s Office of Planning and Research (OPR) published a Technical Advisory that provides suggested methodologies for different kinds of projects and their potential impacts. 10 For example, the Advisory suggests using a threshold that achieves a 15% reduction in VMT from baseline conditions based on a per employee or per capita basis. As applied, this would require that a proposed project reduce its anticipated per capita VMT by at least 15% from existing conditions to avoid significant transportation impacts. a. The FEIR inappropriately relies on a VMT per enplanement methodology, rather than individual and induced VMT metrics.

Several airports have relied on OPR’s suggested threshold for their respective terminal expansion projects. For example, as the City mentioned in its comments on the DEIR, Los Angeles International Airport (LAX) adopted a comprehensive approach based on OPR’s guidance to analyze VMT in the EIR it prepared for its Airfield & Terminal Modernization Project (ATMP).11 The ATMP EIR relied on a VMT model that was “sensitive to changes in the built environment” so that it could accurately estimate anticipated changes to the roadway system based on when different proposed project components would be developed. (LAX ATMP DEIR, p. 4.8-4.) The model incorporated three metrics: (i) VMT; (ii) induced demand (i.e., trips and VMT); and (iii) impacts of mode split changes. (Ibid.) The model used these figures to account for changes to existing surface transportation characteristics around the airport that would result from the ATMP’s proposed improvements, which would, in turn, change LAX’s

10 See Office of Planning and Research (OPR), Technical Advisory: On Evaluating Transportation Impacts in CEQA (Dec. 2018), incorporated by reference herein and available online at: https://lci.ca.gov/docs/20190122-743_Technical_Advisory.pdf. 11 See FEIR, Appendix P, p. P-89 [Comment 20, citing link to LAX ATMP EIR]. The City re- incorporates by reference the LAX ATMP EIR, which is also available online at:
https://cloud1lawa.app.box.com/s/bracrr7k700eb3y7x37x02u19bsec3r5.

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27 existing VMT characteristics and any future baseline conditions against which project impacts were measured. (Id. at p. 4.8-6.) Based on these criteria, and in accordance with OPR’s Advisory, the EIR categorized impacts based on: (i) daily VMT per employee, which measured the average VMT generated by each employee at the airport on an average weekday; (ii) daily VMT per passenger, which measured the total VMT generated by airport passengers on a typical weekday; (iii) short-term (project-level) induced VMT, which assessed VMT related to non- airport trips affected by new roadways and other route changes; and (iv) long-term (cumulative) induced VMT, which estimated roadway and land use changes over time due to additional roadway capacity, based on an induced demand elasticity factor of 1.03 (i.e., every percent increase in lane miles would result in a 1.03% increase in vehicle travel). (Id. at pp. 4.8-9–4.8- 16, 4.8-51–4.8-52.) Finding that each category resulted in a significant impact, the EIR implemented a VMT Reduction Program mitigation measure featuring various VMT reduction strategies and explained the anticipated ability of those strategies to mitigate the three types of VMT impacts. (Id. at pp. 4.8-52–4.8-57.)
The methodology employed by LAX serves as a useful example for projects, such as that proposed here, that contemplate specific airport improvements. Unlike programmatic documents for long-term land use plans, the ATMP EIR considered how the project’s specific improvements to various terminals, runways, and inner-airport circulation routes could induce short-term and long-term VMT. Unlike the ATMP EIR, however, the FEIR here relies on a more generalized “VMT per passenger ratio” (i.e., VMT/Enplanement) methodology, which it borrowed from the Norman Y. Mineta San José International Airport’s (SJC) Master Plan Programmatic EIR (PEIR). (FEIR, pp. 3.13-5–3.13-6; FEIR, Appendix N, p. 20.) Under this metric, the Project’s VMT impacts would be considered significant if VMT per enplanement increases when compared to airport conditions in 2019. (Ibid.) The FEIR’s methodology is inappropriate for two reasons.

First, the SJC Master Plan PEIR is a programmatic document that analyzes long-term impacts associated with future potential airport improvements that have yet to be proposed or developed. The FEIR here, however, is a project-level document that must analyze VMT impacts for each of the Project’s individual components. The nature and scope of the proposed Project thus materially differs from the long-term theoretical development contemplated in the SJC PEIR. As a result, the documents’ underlying impact analyses necessarily differ. However, even if the SJC PEIR’s VMT methodology was appropriate for the Project here, the FEIR ignores several other applicable aspects that contributed to the development of SJC PEIR’s VMT model.

For example, the SJC PEIR’s model was not only based on OPR’s Advisory, but also on a Transportation Analysis Policy and Handbook adopted by the City of San Jose. (See SJC PEIR
12, p. 299.) This policy provides city-specific VMT screening thresholds for projects within the San Jose area. The policy thus provided a foundation for the PEIR’s Travel Demand Forecasting Model, which calculated airport VMT under existing and future conditions.

However, in addition to VMT per enplanement, the PEIR’s model also analyzed: VMT data

12 Incorporated by reference herein and also available online at:
https://www.sanjoseca.gov/home/showpublisheddocument/61640/637304476542130000.

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28 from traffic analysis zones (TAZs) to model VMT generated by airport employees; the number of arriving and departing passengers based on mode of travel; airport trips based on peak hour and daily vehicle and transit trips made by airport employees and air passengers; trip distribution based on the lengths and directional orientation of trips made by airport employees; and transportation mode choices made by passengers. (See SJC PEIR, pp. 309–310.) Based on these combined factors, the PEIR calculated VMT generated for all types of trips—i.e., those generated by passengers, employees, air cargo, general aviation, etc. (Id. at p. 310.) Here, however, the FEIR’s VMT analysis makes no mention of these additional metrics, much less whether its modelling relied on the City of Oakland’s transportation policies, even though responsible transportation agencies stated that the VMT analysis should use Oakland’s and OPR’s per capita VMT threshold. (See FEIR, Appendix B, p. 3-7 [Comment A-2-1 recommends that the DEIR’s VMT analysis should be conducted “pursuant to the Port of Oakland or OPR guidelines. Projects that result in automobile VMT per capita above the threshold of significance for existing (i.e. baseline) city-wide or regional values for similar land use types may indicate a significant impact”]; cf. FEIR, pp. 3.13-6–3.13-10.) Instead, the FEIR only evaluates the total VMT collectively generated by passengers, employees, and deliveries generated in the years 2019, 2028, and 2038, and then divides this amount by the number of enplanements occurring during those respective years. (FEIR, pp. 3.13- 5–3.13-6.) This approach fails to accurately portray existing and future VMT at and around the airport. For instance, this per-enplanement metric could show improved VMT efficiency while still allowing for a substantial increase in overall traffic volumes, which would directly affect local air quality and GHG emissions. More cars on the road could also lead to degraded road conditions, eventually resulting in the need for more maintenance. Finally, and as explained more fully below, this approach prematurely excuses the Port from implementing any mitigation measures, such as a Transportation Demand Management (TDM) program, despite the urging of numerous commenters and agencies. (See, e.g., FEIR, Appendix B, pp. 3-5–3-10 [Alameda CTC recommending that the Port adopt a TDM and associated VMT reduction measures]; FEIR, Appendix P, p. P-60 [Alameda CTC encouraging use of TDM program even under VMT per enplanement threshold].)
Second, and by virtue of relying on the SJC PEIR’s inapplicable methodology, the FEIR understates and discounts the Project’s actual VMT impacts, particularly those related to short- term and long-term induced VMT. Under the FEIR’s current approach, VMT per enplanement between 2019 and 2038 will purportedly decrease from 46.4 to 42.5 VMT per enplanement. (FEIR, Table 3.13-15.) This is despite the FEIR’s prediction that overall VMT will drastically increase from 749,445 VMT in 2019 to 1,264,780 VMT in 2038, and despite the projection that enplanements will rise by 83%, from 16,516 enplanements in 2019 to 30,473 in 2038. (Ibid.) However, and as with LAX’s ATMP project, the Project contemplates numerous changes to the airport’s circulation and parking features, including: removing, relocating, and expanding several parking lots, which will yield 2,000+ additional employee and passenger parking spaces; removing existing taxi lanes; extending terminal loading and unloading curbs; constructing a BART access covered walkway; constructing a second terminal return roadway connection; and Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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29 constructing a new roadway to provide access to the expanded fuel farm. (See FEIR, pp. 2-10–2-

25.) As such, the FEIR should have considered how these improvements will induce additional VMT in the short-and-long-term, just as the LAX ATMP EIR did. This metric would provide the public with a more appropriate, Project-specific methodology that considers how the Project’s significant improvements will alter travel behaviors (i.e., the Project’s 2,000+ additional parking spaces will likely encourage more travelers and employees to drive and park at the airport, thereby potentially inducing more per capita VMT), and traffic patterns (i.e., relocating parking lots and altering roadways will change circulation routes, in turn potentially lengthening or creating more trips) during the many years of construction and operation.

Thus, by failing to individually evaluate the impacts of employee VMT, passenger VMT, and induced VMT, the FEIR underestimates the Project’s true impacts. The Port must therefore resolve these issues by appropriately analyzing additional VMT thresholds and adopting mitigation measures to reduce any potential significant impacts before it can certify the FEIR.

Otherwise, the FEIR remains deficient, as it fails to contain any mitigation measures that address the Project’s potentially significant impacts on traffic and VMT. b. The FEIR’s VMT analysis reveals the Project is inconsistent with applicable land use plans.

In addition to analyzing the Project’s anticipated VMT impacts, the FEIR must also consider whether the Project “[c]onflict[s] with a program plan, ordinance or policy addressing the circulation system, including transit, roadway, bicycle and pedestrian facilities.” (CEQA Guidelines, Appendix G, § XVII, subd. (a); see FEIR, pp. 3.13-5.) While the FEIR identifies a list of applicable land use plans that the Project is allegedly consistent with, its evaluation is either too conclusory or omits too many other relevant plan policies for it to be considered sufficiently credible. (See FEIR, p. 3.13-31 [Section 3.13.4.1].) The FEIR reasons that its VMT-per-enplanement method is appropriate given the absence of any comparable, previously established significance criteria for analyzing VMT at airports. (FEIR, p. 3.13-5.) In analyzing this methodology against applicable transportation plans, the FEIR notes that Plan Bay Area 2050
13 promulgated by the Association of Bay Area
Governments (ABAG) recommends reducing VMT per capita and employee by 15% from baseline conditions. (FEIR, Appendix N, p. 45; cf. OPR Technical Advisory, pp. 15–16.) Despite this clear metric, the FEIR confusingly concludes that the Project is nevertheless consistent with this policy because VMT per enplanement in 2028 and 2038 would be less than the airport’s VMT in 2019. (FEIR, p. 3.13-31.) However, even assuming that VMT per enplanement is comparable to VMT per capita, the FEIR predicts VMT in 2038 will be 42.5, which is lower than the 46.4 VMT in 2019. (FEIR, p. 3.13-31.) This slight decrease only represents an 8.4% decrease in VMT. Therefore, the FEIR’s conclusion that the Project would be consistent with

13 See Quick Guide for VMT Policy Adoption (Apr. 25, 2024) Association of Bay Area Governments (ABAG), incorporated by reference herein and available online at:
https://abag.ca.gov/sites/default/files/documents/2024- 04/VMT_Policy_TA_Policy_Adoption_Quick_Guide_04-25-2024.pdf.

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30 Plan Bay Area’s 15% VMT reduction criteria is unsupported by substantial evidence and fails to establish that the Project’s VMT impacts would, in fact, be less-than-significant. (Cf. Protect the Historic Amador Waterways v. Amador Water Agency (2004) 116 Cal.App.4th 1099, 1109 [“A threshold of significance cannot be applied in a way that would foreclose the consideration of other substantial evidence tending to show the environmental effect to which the threshold relates might be significant”].)
The FEIR also fails to analyze the Project’s consistency with several applicable transportation plans promulgated by the City of Alameda, including the Alameda 2040 General Plan Mobility Element (2021), the Vision Zero Action Plan (2021), and the Transportation Choices Plan (2018). While the FEIR reasons that the Project is solely located in the City of Oakland and therefore need not be consistent with these plans and policies, Alameda still falls within the airport’s Area of Influence, which is why many of its land use plans’ policies and objectives are incorporated into the OAK Airport Land Use Compatibility Plan (ALUCP). (See OAK ALUCP, p. 4-9 [listing applicable transportation policies from the Alameda General Plan’s “Airport Environs Element”].)
By virtue of the City’s proximity to the airport, the Project is expected to generate additional vehicular traffic through Alameda’s streets, which are governed by the City’s General Plan (along with several other transportation plans and policies). As noted in the City’s comments on the DEIR, the FEIR’s transportation analysis must “comport with adopted programs addressing circulation systems, including transit affected by the project.” (FEIR, Appendix P, p. P-130.) Moreover, the FEIR “may not ignore the regional impacts of a project proposal, including those impacts that occur outside of its border; on the contrary, a regional perspective is required.” (Citizens of Goleta Valley v. Bd. of Supervisors (1990) 52 Cal.3d 553, 575; accord, Sierra Watch, supra, 69 Cal.App.5th at p. 107.) This is particularly pertinent given that increased automobile and transportation activity will have wide-reaching impacts on the region, including decreased air quality and increased traffic noise. (See Sierra Watch at p. 98–99 [impacts from increased VMT must be adequately evaluated to provide the public with the ability to evaluate the extent of a project’s regional impacts—including those that fall outside of its borders].) Therefore, the FEIR is insufficient in its current form and must evaluate the Project’s consistency with these additional applicable land use plans.

2. The FEIR fails to incorporate feasible mitigation measures that will ensure the Project’s VMT impacts remain less-than-significant.

The City is disheartened by the FEIR’s failure to adopt any of the feasible transportation mitigation measures that it and other commenters suggested, including a TDM program or a construction traffic management plan. While the City appreciates that the Port’s Board of Commissioners has agreed to assess TDM strategies during the design phase of the Project and “incorporate measures as feasible,” the City is concerned that this delayed analysis will prevent the public from evaluating those measures and ensuring that the TDM Program will mitigate traffic impacts to the surrounding community. (See November 21, 2024, Port of Oakland, Board of Commissioners Agenda Report, p. 5 [hereinafter “Board Report”].) CEQA requires that the public be provided an opportunity to review mitigation measures before they are adopted, as Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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31 opposed to “waiting and seeing” and simply trusting that those measures will, in fact, be adopted. (See San Joaquin Raptor/Rescue v. Merced, supra, 149 Cal.App.4th at p. 670 [the success or failure of mitigation efforts that largely depend upon management plans that have not yet been formulated and have not been analyzed and reviewed within the EIR violates CEQA].) As the City and other commenters explained, the Port should create a TDM program for the Project that is designed to “encourage alternative modes of transportation and reduce reliance on single-occupancy vehicles.” (FEIR, Appendix P, p. P-132; see also FEIR, Appendix B, pp. 3- 7–3-8 [Alameda CTC’s recommended TDM measures].) Nevertheless, because the FEIR finds that the Project will not have significant transportation impacts, the Port declines to implement one. (See FEIR, Appendix P, p. P-235.)
Instead, the FEIR and the Board Report indicate that the Port “will assess TDM strategies during design of the Proposed Project and incorporate measures as feasible.” (Id. at pp. P-61, P- 2053; see also Board Report, p. 5.) As explained above, deferring the formulation of a TDM program and the performance standards and measures it must contain until after the Project is approved precludes the public from providing input in the matter and “will inevitably have a diminished influence on decisionmaking.” (CBE v. Richmond, supra, 184 Cal.App.4th at p. 92.) CEQA prohibits the Port from relying on “postapproval mitigation measures adopted during the subsequent design review process,” for doing so will be “outside of any public process…after the Project has been approved,” thereby thwarting CEQA’s information disclosure requirements. (Id. at p. 93, quoting Quail Botanical Gardens, supra, 29 Cal.App.4th at p. 1605, fn. 4; see CEQA Guidelines, § 15201 [“Public participation is an essential part of the CEQA process”]; § 15151 [“An EIR should . . . provide decisionmakers with information [that enables] them to make a decision”].)
For these reasons, the FEIR should be amended to include a thorough TDM program with measures that adequately reduce Project-induced VMT. Resources are available to measure how successful certain TDM measures will be.
14 For example, the TDM program should include
measures to reduce employees’ commute VMT, such as by providing employer-sponsored vanpools, marketing and promoting alternative transportation options, and implementing dynamic pricing for employee lots. Implementing these types of measures can mitigate up to 26% of related GHG emissions. (2021 CAPCOA Handbook, pp. 83–94, 104–115.) Similarly, transitioning the airport’s vehicles to cleaner fuels can mitigate up to 100% of GHG emissions from traditional on-road vehicles. (Id. at pp. 203–209.) The TDM program should also direct the Port to fund and expand more transit incentives, such as the AC Transit EasyPass Program and funding the AC Transit Line 21 to Alameda. These types of measures have the ability of mitigating upwards of 13.8% of GHG emissions. (See id. at pp. 95–99, 178–198.) Ultimately, by providing more information to passengers and employees who intend to utilize public transit and

14 See, e.g., California Air Pollution Control Officers Association (CAPCOA), Handbook for Analyzing Greenhouse Gas Emission Reduction, Assessing Climate Vulnerabilities, and Advancing Health and Equity (Dec. 2021), incorporated by reference herein and available online at: https://www.caleemod.com/documents/handbook/full_handbook.pdf (hereinafter, “2021 CAPCOA Handbook”).

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32 by creating safer roadways for those who utilize active modes of transportation, a robust TDM program could reduce VMT below projected levels and in turn lessen the Project’s long-term impacts to the circulation systems in and around the airport.

In addition to a TDM program, the Port must also prepare and circulate for public review a construction traffic management plan. Despite the City’s request that the Port prepare this plan ahead of time, the FEIR, once again, defers its development until “detailed construction activities are planned and would be designed so that construction traffic does not result in significant traffic impacts on local streets.” (FEIR, Appendix P, p. P-247.) While the FEIR qualifies that the plan “would include coordination with affected agencies to the extent necessary,” it fails to identify which affected agencies will be able to participate or how the Project will be designed to ensure local streets are not significantly impacted. Again, performance standards of a future construction management plan are missing. The FEIR’s conclusion that traffic impacts will be less-than-significant remains unsupported by substantial evidence. (See Lotus v. Dept. of Transportation (2014) 223 Cal.App.4th 645, 655–657 [the failure to discuss the significance of an environmental impact apart from proposed avoidance, minimization, or mitigation measures, fails to consider whether other possible mitigation measures would be more effective]; see also CBE v. Richmond, supra, 184 Cal.App.4th at p. 85 [an EIR’s conclusions cannot simply call for “blind faith in vague subjective characterizations”].)

The City therefore requests that the Port commit to preparing a construction management plan before it approves the Project and include a measure that ensures the City will have an opportunity to review and comment on the plan, including the construction truck haul routes, the maximum number of daily heavy duty truck trips to travel each route, avoidance of Alameda streets, and a provision for funding in the event construction traffic degrades Alameda’s roadways.

IV. The EIR’s Alternatives Analysis Remains Woefully Inadequate.

The City remains disappointed with the FEIR’s refusal to consider a range of potentially feasible alternatives to the Project as required by CEQA. Considering only the Project and the mandated No Project Alternative is not a “range.” An adequate analysis would include a true policy range of alternatives and explain the “environmentally superior” alternative that is not the Project. Although the City’s comments on the DEIR apprised the Port of this critically absent analysis, the FEIR inexplicably fails to ameliorate this shortcoming, much less consider any viable alternatives that could reduce the Project’s otherwise significant impacts. As a result, the FEIR’s conclusory discussion of alternatives remains deficient.

A. The FEIR omits consideration of a “range” of potentially feasible alternatives.

The FEIR violates CEQA’s statutory requirement to describe and analyze a reasonable range of Project alternatives that would feasibly attain most of the Project’s basic objectives but that would avoid or substantially lessen any of the Project’s significant effects. (CEQA Guidelines, §§ 15126.6, subd. (a), 15002, subd. (a)(3); Pub. Resources Code, § 21002.) Under CEQA, this discussion must “focus on alternatives capable of eliminating any significant adverse environmental effects or reducing them to a level of insignificance, even if these alternatives Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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33 would impede to some degree the attainment of the project objectives, or would be more costly.” (San Joaquin Raptor/Wildlife v. Stanislaus, supra, 27 Cal.App.4th at p. 735 [quoting CEQA Guidelines, § 15126, subd. (d)(3)].) To help frame its discussion of Project alternatives, the FEIR must contain a “clearly written statement of objectives [that] will help the [Port] develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings.” (In re Bay-Delta etc. (2008) 43 Cal.4th 1143, 1163.) In doing so, however, the Port cannot give the Project’s purpose such an “artificially narrow definition” that would otherwise “preclude any alternative other than the Project.” (WATER, supra, 78 Cal.App.5th at pp. 692–693.)

The City’s comments on the DEIR explained that three factors the EIR used to evaluate eight and ultimately eliminate six potential Project alternatives were too narrow and, as a result, prematurely excluded otherwise feasible, less-environmentally impactful Project alternatives. (See North Coast Rivers Alliance v. Kawamura (2015) 243 Cal.App.4th 647, 668 [project objectives cannot be artificially narrow or so restrictively construed that they preclude meaningful consideration of alternatives].) The FEIR’s responses fail to meaningfully address these comments, and instead simply refer the reader to Global Response I: Alternatives.

The FEIR’s Global Response I, however, is equally silent on how the EIR selected the utilized factors and applied them so as to eliminate all potentially feasible and environmentally superior alternatives. (FEIR, Appendix P, pp. P-56–P-57.) If anything, the FEIR continues to rely on subjective criteria such as constructability, cost, or increases in passenger travel times. (FEIR, pp. 4-7–4-8.) These factors, alone, however, cannot be used to completely forego the analysis of alternatives that are otherwise feasible or environmentally superior to the Proposed Project. (CEQA Guidelines, § 15126.6, subd. (b); see Preservation Action Council v. City of San Jose (2006) 141 Cal.App.4th 1336, 1354 [“A potential alternative should not be excluded from consideration merely because it ‘would impede to some degree the attainment of the project objectives, or would be more costly’”].) This is because it is “virtually a given that the alternatives to a project will not attain all of the project’s objectives.” (Watsonville Pilots Assn. v.

City of Watsonville (2010) 183 Cal.App.4th 1059, 1087 (Watsonville).)

The FEIR similarly continues to rely on overly narrow Project Objectives to summarily reject consideration of otherwise feasible Project alternatives. Objective 2, for example, explains that the Project will “[p]rovide replacement and new terminal facilities that are sized to efficiently accommodate the market-based passenger demand at industry standard levels of service and designed to improve the passenger experience.” (FEIR, pp. ES-1, 2-9.) But the FEIR does not explain what constitutes “industry standard levels of service” or what sized facilities are needed to “accommodate the market-based passenger demand” at those levels. (FEIR, pp. 2-9, 4-

10.) Objective 3 is similarly vague, as it provides that the Project will “[m]odify and replace existing non-terminal facilities at OAK to accommodate the market-based demand.” (FEIR, pp.

ES-1, 2-9.) The FEIR explains that cargo and support facilities “need to be relocated to service passenger airline and cargo aircraft and provide adequate passenger and employee parking,” but again fails to specify what criteria is being used to ensure these relocations will accommodate “market-based demand.” (FEIR, p. 2-9.)

Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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34 By virtue of these nebulous and overly narrow Project Objectives, the FEIR’s alternatives analysis all but guarantees that only the proposed Project can survive scrutiny. (Cf. WATER, supra, 78 Cal.App.5th at p. 692.) Each alternative that was screened from further consideration was based on the EIR’s unspecified “market-demand” metric—i.e., that certain impacts would occur, regardless of whether the Project is developed, due to forecasts in passenger travel demands. But by failing to define, much less relate “market-demand” to “industry standard levels of service,” the FEIR rejects seven alternatives, several of which could have feasibly satisfied most Project objectives. (See FEIR, pp. 4-4–4-12.) The purpose of an EIR “is not to identify alleged alternatives that meet few if any of the Project’s objectives so that these alleged alternatives may be readily eliminated.” (Watsonville, supra, 183 Cal.App.4th at p. 1089.)

For these reasons, the FEIR was required to meaningfully analyze the alternatives it identified as feasible and environmentally superior rather than prematurely exclude them from consideration. The FEIR’s use of artificially narrow Project objectives and subjective screening criteria effectively defined all competing reasonable alternatives out of consideration, thus precluding informed decisionmaking and rendering the alternatives analysis nothing more than “an empty formality.” (WATER, supra, 78 Cal.App.5th at p. 692; Habitat & Watershed Caretakers v. City of Santa Cruz (2013) 213 Cal.App.4th 1277, 1304.)

B. The FEIR inexplicably fails to analyze potentially feasible Project alternatives, including a n “environmentally superior” or “reduced-intensity” Project alternative.

The FEIR also remains legally inadequate because it fails to identify and analyze an “environmentally superior” alternative other than the Proposed Project. Under CEQA, an EIR “shall also identify an environmentally superior alternative among other alternatives,” particularly where, as here, the only other environmentally superior alternative is the “no project” alternative. (CEQA Guidelines, § 15126.6, subd. (e)(2), emphasis added.) Despite this explicit mandate, the FEIR still selects the Proposed Project as the “environmentally superior” alternative, while, once again, declining to analyze the two “environmental avoidance alternatives”—(1) Retain Terminal 1 Ticketing and Baggage Claim Building (M101) and (2) Use of Hardstands with No New Terminal—even though both alternatives would yield impacts that are the same or less than those of the Proposed Project. (FEIR, p. 4-7.) The EIR reasons that neither alternative would meet the Project’s objectives of providing new and modernized facilities that are sized to accommodate market-based passenger demand (Factor 1) and both would have adverse effects on levels of service provided to travelers (Factor 2).

CEQA does not permit the Port “to omit any discussion, analysis, or even mention of any alternatives that feasibly might reduce the environmental impact of a project on the unanalyzed theory that such an alternative might not prove to be environmentally superior to the project.” (Habitat & Watershed Caretakers, supra, 213 Cal.App.4th at p. 1305, original emphasis.) Instead, “[e]nvironmentally superior alternatives must be examined whether or not they would impede to some degree the attainment of project objectives.” (Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 737, emphasis added.) Reliance on the “no project alternative” or the proposed Project itself does not satisfy the Port’s obligation to consider a range of alternatives that would mitigate or avoid significant impacts. (See, e.g., Watsonville, Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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35 supra, 183 Cal.App.4th at p. 1089 [rejecting respondent agency’s argument that EIR’s consideration of a “no-project alternative” constituted sufficient consideration of a reduced development alternative].) Considering only the Project and one alternative (the mandated No Project Alternative) is hardly a “range” of alternatives to the Project.

The FEIR could have more thoroughly analyzed the “Retain Terminal 1” or “Use of Hardstands” Alternatives, as either would avoid the Project’s significant impacts to historic resources. Alternatively, the FEIR could have considered other Project iterations that would achieve the Project’s Objectives without increases the number of gates or developing an entirely new terminal. For example, the FEIR could have selected a subset of the Project’s proposed components that focus on terminal modernization to improve levels of service without generating unnecessary environmental impacts. Conversely, the FEIR could have considered Project build-out under a smaller footprint. The possibilities abound, but the FEIR makes no effort to quantify or otherwise analyze them.

By failing to discuss any of these environmentally superior alternatives in detail in the EIR, neither the City nor the public and decisionmakers are “provided with any information about the effect that such alternative might have on” various areas of impact, such as air quality, traffic, and noise. (Habitat & Watershed Caretakers, supra, 213 Cal.App.4th at p. 1304.) In turn, the public has no opportunity that would enable it to understand, evaluate, and respond to the FEIR’s repeated assertions that these alternatives cannot be accomplished in a manner that would support Project operations while minimizing environmental impacts. (See FEIR, p. 4-8.) Accordingly, the public cannot reach an intelligent decision as to the environmental consequences and relative merits of the available alternatives to the proposed Project. (Laurel Heights I, supra, 47 Cal.3d at p. 404.)

For these reasons, the continued absence of this information in the FEIR violates CEQA by precluding informed decisionmaking, thereby rendering it legally inadequate as an informational document.

V. The Port Board ’s CEQA Findings of Fact and Statement of Overriding Considerations Are Not Supported by Substantial Evidence.

Based on the shortcomings outlined above, substantial evidence does not support the CEQA Findings of Fact (Findings) and Statement of Overriding Consideration (SOC) that the Port Board proposes to adopt in support of its certification of the FEIR and approval of the Project. (See Board Report, Resolution, Item No. 6.2 [hereinafter “Proposed Findings”].) CEQA requires that the Board make “certain specific findings attesting to its consideration of the need for the mitigation measures identified in the EIR” based on substantial evidence in the record. (Berkeley Jets, supra, 91 Cal.App.4th at pp. 1354–1355.) Because the Project will have significant effects on the environment, the Port may approve the Project “only upon finding that it has eliminated or substantially lessened all significant effects on the environment where feasible and that any unavoidable significant effects on the environment are acceptable due to overriding concerns[.]” (Ibid.) Otherwise, “adopting a statement of overriding considerations does not negate the statutory obligation to implement feasible mitigation measures. Even when a project’s benefits outweigh its unmitigated effects, [the Port] [is] still required to implement all Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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36 mitigation measures unless those measures are truly infeasible.” (King & Gardiner Farms, supra, 45 Cal.App.5th at p. 852.)

As explained above, many of the FEIR’s analyses of Project impacts are unsupported by substantial evidence. As a result, the FEIR inexplicably omits several mitigation measures that the City and other commenters proposed to help mitigate some of the Project’s significant impacts, particularly those related to air quality, GHGs, and noise. Nevertheless, the Board’s Proposed Findings are similarly unsupported by substantial evidence and also fail to mention these measures or explain why they are infeasible. For example, as to air quality impacts, the Board’s Proposed Findings claim that the “net changes in emissions for both PM10 and PM2.5 are below the daily and annual thresholds of significance for both 2028 and 2038, respectively.” (Proposed Findings, pp. 6–7 [Air Quality Impacts 2.1.1.1 and 2.1.1.2].) As revealed above, however, the FEIR plainly concedes that the Project’s PM2.5 emissions in 2028 will be 73.8 lbs/day and in 2038 will be 85.5 lbs/day, and thus ostensibly exceed BAAQMD’s PM2.5 threshold of 54 lbs/day (FEIR, pp. 3.3-30, 3.3-31.) Therefore, the Board’s proposed air quality findings are not only incorrect but also unsupported by substantial evidence.

The same is true for the Proposed Findings’ analysis of potential measures to mitigate the Project’s air quality impacts. The Findings contend that, although the “Port has provided electrical infrastructure throughout the terminals and cargo areas for use by commercial and cargo airlines and would install this electrical infrastructure in the new terminal and relocated cargo area…this would not reduce impacts to less-than-significant levels.” (Proposed Findings, pp. 6–7.) This Finding is too ambiguous because it does not address how installing electrical infrastructure would, at least partially, reduce the Project’s significant air quality impacts. (Cf.

King & Gardiner Farms, supra, 45 Cal.App.5th at p. 867.)

The Proposed Findings also fail to discuss any of the dozens of other feasible air quality mitigation measures that the City, responsible agencies, and commenters proposed. (See, e.g., FEIR, Appendix P, pp. P-71–P-74, P-89–P-90, P-295–P-301.) Nor do the Findings discuss or require the Project to comply with various BMPs to reduce emissions, despite the FEIR’s reliance on them to conclude the Project’s construction air quality impacts will be less-than- significant. (Cf. Proposed Findings, pp. 6–7, with FEIR, Appendix P, p. 485 [Response 39: “As explained in Section 3.3.3.3 of the EIR, the Port is committed to mitigation plans including the BMPs for construction and operations. Construction and aircraft operational Best Management Practices (BMPs) and mitigation measures to reduce emissions are discussed in Section 3.3.3.3 of the EIR”]; see id. at p. P-232 [Response 17], p. P-236 [Response 30], p. P-247 [Response 80], p. P-274 [Response 339].)

Finally, the Proposed Findings omit any discussion of the additional air quality measures that the Board has proposed to adopt. (See Board Report, pp. 3–5 [Table 1].) To the extent these measures could further reduce the significant impacts associated with the Project’s emissions, the Findings must explain as much. (See King & Gardiner Farms, supra, 45 Cal.App.5th at pp. 865– 866 [agency must explicitly find that all feasible mitigation measures have been adopted when impacts have not been mitigated to less-than-significant levels, even if those measures will only be partially effective].) Otherwise, absent more substantive analysis, the Board’s Proposed Findings lack substantial evidence and “undermine CEQA’s purpose of systematically Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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37 identifying feasible mitigation measures which will avoid or substantially lessen such significant effects.” (Id. at p. 858.)

Given that the Board’s Proposed Findings are based on an EIR that omitted information necessary to understand and adopt all feasible mitigation measures, and in turn are unsupported by substantial evidence, the Board lacks the information necessary to understand which impacts will be overridden. (King & Gardiner Farms, supra, 45 Cal.App.5th at p. 870.) In other words, “[t]his deficiency in the information provided prevents the adoption of the statement [of overriding considerations] from curing the defects in the mitigation measures or rendering them nonprejudicial. Instead, the informational deficiency undermines the foundation upon which the statement of overriding considerations rests. Consequently, the defects in the EIR’s discussion of mitigation measures must be remedied and a revised EIR considered by the Board before it adopts any statement of overriding consideration.” (Ibid.)

VI. Conclusion

The City submits these substantive comments on the Final EIR, including the expert comments enclosed herein, with hope that the Board will consider them seriously before certifying the FEIR and approving the Project. The EIR’s lack of meaningful analysis and consideration of adequate mitigation and alternatives to the Project cannot be overstated. The City nevertheless welcomes any opportunity to work with the Port to ensure that community concerns about the Project are fully addressed.

Please promptly provide Mr. Allen Tai ([email protected] ) with copies, including
emailed copies, of all future public notices issued for the Project, including but not limited to a Notice of Determination (NOD) and any other notice issues pursuant to CEQA and the Ralph M.

Brown Act, if any.

Sincerely,

Marilyn Ezzy Ashcraft
Mayor, City of Alameda

Cc: Members of the Alameda City Council
Jennifer Ott, Alameda City Manager
Allen Tai, Alameda City Planning, Building & Transportation Director Steven Buckley, Alameda City Planning Manager
Yibin Shen, Alameda City Attorney

Ms. Colleen Liang *REVISED DRAFT – SUBJECT TO CHANGE*
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38 ______________________

Encl.

Attachment A: Expert Letter from Erin Sheehy, Environmental Compliance Solutions, dated November 12, 2024,
Attachment B: Expert Letter from John C. Freytag, P.E., Freytag & Associates LLC, dated November 12, 2024

Alameda City CouncilNovember 19, 2024

Alameda City Council
November 19, 2024