The fate of San Francisco's Bicycle Plan and the four-year-old court injunction against implementing its projects remains unclear following a nearly three-hour hearing today that delved deeply into the minutiae of traffic studies, mitigation requirements, and the dictates of the California Environmental Quality Act.
But Superior Court Judge Peter Busch did make a few things clear, most notably that it's a legitimate decision for city leaders to give more street space to bikes, even if it slows down cars or Muni. “That's the policy question that's not for the court to decide,” he said, cutting off plaintiff attorney Mary Miles' repeated arguments that the city shouldn't be favoring bicyclists because they are a minority of road users. He later repeated the point: “I don't get to decide that the Board of Supervisors' policy is misguided.”
The issue at hand – which was argued to a level of detail that only a lawyer or traffic engineer could really appreciate – was whether policymakers had the benefit of a full analysis of all the various impacts and options before they unanimously decided to certify the four-volume EIR and green light 45 of the 60 near-term bike projects it studied.
“The analysis had to occur before the city approved the project,” Miles, who sued the city along with anti-bike activist Rob Anderson back in 2005, told the court today, charging that “there's no mitigation or analysis in the EIR” that their suit forced the city to prepare and adopt last year.
Deputy City Attorney Audrey Williams Pearson strongly disagreed, asserting that “one of the great things about this EIR is the breadth of alternatives studied” and noting, “For complicated projects, caselaw is clear that it's almost impossible to eliminate all impacts.”
And this is certainly a complicated case, as all sides acknowledged. Part of the reason for that was the city's 2004 decision to mention dozens of specific projects in the plan – a legal strategy some bike activists have criticized – without doing a full EIR, which has proven to be a complicated endeavor that took two years and blazed a new regulatory trail because of all the intersections and factors it needed to study.
“There probably has never been an EIR for a project like this. This is a strange project to prepare an EIR for,” Busch acknowledged, noting the difficulty in deciphering what is then legally required by CEQA. In the end, he gave no indication how he was leaning, asking both sides to submit proposed orders by July 6 and responses to those orders by July 13, meaning that it will likely be at least another month (and up to 90 days) before we have a ruling.
But Busch certainly didn't seem to buy Miles argument that this was a fatally flawed study that did little to study alternatives or mitigation measures, which she charged was a gross violation of CEQA and abuse of the city's discretion.
Miles seemed to be throwing out a wide range of accusations hoping that something would stick, belittling every city claim to have diligently looking at alternatives and employing hyperbole and sweeping denunciations with such regularity that Busch finally challenged her on it.
“That's such an over-argument it leaves me wondering about the rest of your argument,” Busch said after Miles asserted that the voluminous EIR contained no references to any of its underlying studies and source data.
Busch also noted the contradiction between her complaints that the EIR didn't include all the traffic count data that went into its formulas for determining changes to the level of service at intersections and her complaint that the EIR was too big and unwieldy. “So you're saying the info should have been added to what you say is already an overlarge EIR?” Busch asked.
Later, he took Miles to task for advocating that the threshold the EIR used for determining whether delays to Muni service rose to the level of a significant impact should have been the subject of separate public hearings, just as she argued that virtually every detail in the plan should have been explicitly laid out in full detail and subject to challenge.
“You're describing an endless process that would be impossible to comply with,” Busch told Miles.
In fact, Pearson said CEQA specifically says such fine details shouldn't be in EIRs. For example, while the EIR discusses impacts to the level of service at every intersection affected by the plan – a complicated formula involving 30 different data points, which were in a Transportation Impact Study that the EIR referenced – she said it didn't need to all be in the EIR. “If this detail was in the EIR, it would turn the four-volume EIR into an eight-volume EIR,” she said.
Miles challenged the city on not going into that same level of detail in justifying why potential mitigation measures for each impact weren't included in the EIR, something Pearson argued isn't legally required (although she did trip up in citing a case that did require such analysis, saying that court ruling was wrong and earning a rebuke from Busch, who said it's not in his power to overrule a higher court's ruling).
Pearson also noted that for all the complaints about not studying enough alternatives, neither Miles nor Anderson have suggested any. “I think it's telling that the petitioners haven't come up with a single alternative that we should have looked at,” Pearson said before acknowledging the point by Miles and Busch that's not incumbent upon petitioners in cases like this.
But Pearson seemed more persuasive when she noted that in a built out city, there's only so much the city can do to find creative ways to offset the traffic impacts of giving more space to bikes. “This is not your typical project. We are not working on a blank slate. We are working within the constraints of the city's existing roadways,” Pearson said.
In the end, Busch asked both sides what the remedies might be if he finds some flaws in the EIR, expressing a desire to wrap this case up without extending the current wide-ranging injunction against all bike projects. But Anderson said the hearing gave him hope that the judge might not let the plan proceed without more work: “It's taken longer than I thought, which tells me he has some serious concerns.”
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