Town of Atherton v. California High-Speed Rail Authority (228 Cal. App. 4th 314, 2014)

Opinion

DUARTE, J.

California has long contemplated a high-speed rail system connecting its southern and northern regions. In 1996 when the Legislature established defendant California High-Speed Rail Authority (the Authority), it declared the need for an intercity rail system operating at high speeds to complement the existing infrastructure of highways and airports. (Pub. Util. Code, § 185010.) As plans for a high-speed rail system developed, the system’s alignment — simply put, where to lay the track — from the Central Valley to the San Francisco Bay Area became an issue. At the heart of the dispute in this case is the Authority’s decision that trains traveling between those destinations should travel through the Pacheco Pass rather than further north at the Altamont Pass.

Petitioners challenge the adequacy of the revised final program environmental impact report/environmental impact statement (PEIR) and the approval of the Pacheco Pass network alternative as the route for the high-speed train (HST) system to connect the San Francisco Bay Area and the Central Valley. They contend the revised final PEIR violates the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) because it (1) provides an inadequate analysis of the vertical profile options for alignment — simply put, where to elevate the track — along the San Francisco Peninsula (the Peninsula); (2) uses a flawed revenue and ridership model; and (3) has an inadequate range of alternatives, specifically because it rejects an alternative proposed by an expert consulting company (Setec).

After this case was originally calendared for oral argument, the Authority asked us to dismiss it, contending that federal law preempts any CEQA remedy. The Authority makes this argument because a federal board recently assumed jurisdiction over the HST. As we will explain, we need not decide the broader question of federal preemption because we find the specific circumstances of this case establish an exception to federal preemption under the market participation doctrine.

On the merits, we hold the Authority properly used a PEIR and tiering and deferred site-specific analysis such as the vertical alignment to a later project EIR. The challenge to the revenue and ridership modeling presents a disagreement among experts that does not make the revised final PEIR inadequate. The Authority studied an adequate range of alternatives. It was not required to analyze the Setec alternatives because they were infeasible or substantially similar to those already studied. Accordingly, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Alignment of High-speed Rail from Central Valley to Bay Area

Altamont Pass Versus Pacheco Pass

In 1993, the Intercity High-Speed Rail Commission (Commission) was established to develop a framework for implementation of a high-speed rail system. As part of a study, the Commission considered three mountain passes (the Altamont, the Pacheco, and the Panoche) to link the Central Valley to the San Francisco Bay Area by rail. It recommended the Altamont Pass. “This option generates higher ridership and revenue for the system, and is less costly to construct than the other two mountain passes considered.”

In 1996, the Authority was established to continue planning for the high-speed rail system. (Pub. Util. Code, § 185000 et seq.) At the end of 1999, the Authority issued a final report on the corridor evaluation. The report noted the Altamont Pass corridor, which turned west from the Central Valley south of Stockton, had a faster travel time than the Pacheco Pass corridor. It did, however, require a branch alignment, or additional track(s), to provide train service to San Jose, which resulted in less frequent service to both San Francisco and San Jose unless additional trains were provided. Environmental issues included a substantial impact to farmland and impacts to threatened and endangered species.

The Pacheco Pass corridor turned west between Fresno and Merced. The report found it was slower than the Altamont corridor in terms of travel time to San Francisco, but provided faster travel time to San Jose with no need for a branch alignment. Overall, the Pacheco Pass option would have more negative environmental impacts as compared to the Altamont Pass option. This option could affect low-income and minority populations; there would be more water crossings, there would be impacts to farmland and historic properties, flood plain encroachment, and impacts to threatened and endangered species. The report found the ridership and revenue forecasts were higher for the Pacheco Pass alternative than the Altamont Pass, however, due to the faster travel times to San Jose and the improved frequency of service to San Jose and either San Francisco or Oakland. Authority staff recommended the Pacheco Pass corridor.

In 2005, the Authority directed its staff to proceed with the preparation of a separate program-level EIR to identify a preferred alignment within the broad corridor between and including the Altamont Pass and the Pacheco Pass for the HST system segment connecting the San Francisco Bay Area to the Central Valley. After receiving over 400 comments on the draft PEIR, in 2008 the Authority prepared a final PEIR, which identified the Pacheco Pass as the preferred alternative. The Pacheco Pass alternative (1) minimized impacts on wetlands, waterbodies, and the environment; (2) best served the connection between Northern and Southern California; (3) best used the Caltrain Corridor (between San Jose and San Francisco); and (4) was strongly supported by the Bay Area region, cities, agencies, and organizations.

Challenge to 2008 Final PEIR (Atherton I)

Petitioners Town of Atherton, Planning and Conservation League, City of Menlo Park, Transportation Solutions Defense and Education Fund, California Rail Foundation, and Bayrail Alliance (collectively Atherton I petitioners) petitioned for a peremptory writ of mandate to set aside certification of the final revised PEIR. The Atherton I petitioners contended the final revised PEIR was inadequate because it failed to include an adequate description of the project and feasible alternatives; it failed to adequately identify and mitigate the project’s significant impacts; its alternatives analysis was inadequate and predisposed toward selection of the Pacheco Pass alternative; and the Authority refused to recirculate the draft PEIR after the Union Pacific Railroad announced its opposition to allowing use of its right-of-way.

The trial court found the Atherton I petitioners met their burden of showing certain inadequacies in the final PEIR. These inadequacies related primarily to the project description and the Union Pacific Railroad’s opposition to allowing the project to use its right-of-way. The trial court issued a peremptory writ of mandate commanding the Authority to rescind and set aside its resolution certifying the final PEIR and approving the Pacheco Pass alternative, to set aside other approvals, and to revise the PEIR (Town of Atherton v. California High-Speed Rail Authority (Super. Ct. Sacramento County, 2008, No. 34200880000022CUWM605) (Atherton I)). The court denied the Atherton I petitioners’ request for a stay of project-level environmental studies.

The Authority filed an initial return to the writ, indicating the Authority had rescinded its prior approvals relating to the project.

Petition for Writ of Coram Nobis

The Atherton I petitioners petitioned for a writ of coram nobis, seeking to vacate the prior judgment. They contended newly discovered evidence that revealed the revenue and ridership modeling was obviously and fatally flawed had been improperly withheld. They asserted that the modeling parameters had been changed because the first results were not acceptable. The Atherton I petitioners provided the opinion of a consultant that the errors in the modeling made the results untrustworthy. In particular, the consultant found the service headway coefficients, which describe the frequency of service, were invalid and favored the Pacheco Pass route.

The trial court denied the petition. It found the Atherton I petitioners failed to establish both that the new evidence would cause a probable different result and that the new evidence could not have been discovered with due diligence. Further, the court found the Atherton I petitioners had an alternate remedy in the CEQA compliance procedure.

The Revised Final PEIR

In September 2010, the Authority certified the revised final PEIR as in compliance with CEQA, and approved the CEQA findings of fact and statement of overriding considerations, and adopted the mitigation monitoring and reporting program. It also approved the Pacheco Pass network alternative.

The Authority filed a supplemental return to the writ. The Authority declared that it had complied with the writ and requested that the writ be discharged.

Challenges to Revised Final PEIR (Atherton II)

The Atherton I petitioners objected to the Authority’s supplemental return to the writ, contending the Authority had failed to comply fully with the writ. They alleged the revised final PEIR was inadequate for several reasons. First, the project description was inadequate because it included inaccurate ridership and revenue figures from a defective model. Second, the revised final PEIR failed to disclose significant impacts resulting from removing the HST right-of-way from the Union Pacific Railroad right-of-way, especially the impact of the removal of two lanes from the Monterey Highway and the need for a vertical alignment through cities on the Peninsula. Third, the Atherton I petitioners objected to the analysis of alternatives and claimed that new information required recirculation of the PEIR. They explained that a group known as the Altamont Advocates had contracted with a French high-speed rail expert consulting company, Setec, to identify a feasible Altamont Pass alignment. Setec also provided material on the feasibility of a new Dumbarton rail bridge to serve the Altamont Pass route. The Atherton I petitioners complained that the Authority “brushed these new alternatives and the new information aside.”

A second group of petitioners included all of the Atherton I petitioners, except Bayrail Alliance, and added the City of Palo Alto, Community Coalition on High-Speed Rail, MidPeninsula Residents for Civic Sanity, and Patricia Hogan-Giomi (the Atherton II petitioners). They petitioned for a writ of mandate, seeking to set aside approvals for the project, including the determination to choose the Pacheco Pass alignment. They raised many of the same points as the Atherton I petitioners.

The parties stipulated that the Atherton I case would address whether the Authority complied with the writ, while the Atherton II case would address whether the Authority complied with CEQA in the revised final PEIR. In addition, those parties who were petitioners in both Atherton I and Atherton II would file a request for dismissal with prejudice from Atherton II.

The Rulings

The trial court agreed with the Atherton I petitioners, finding the revised final PEIR failed to adequately address the traffic impacts of narrowing and moving Monterey Highway to accommodate the Pacheco Pass alignment. It rejected the remaining contentions of the Atherton I petitioners. The court found it proper to defer analysis of the impacts of the vertical alignment until the second tier project analysis. The challenges to the modeling failed; the court found the dispute was a “classic disagreement among experts that often occurs in the CEQA context.”

The court disagreed in relevant part with the Atherton II petitioners, finding the alternatives analysis complied with CEQA and there was no abuse of discretion in refusing to consider the Setec alternative. While the court did reject the Authority’s argument that the challenge to the alternatives analysis was barred in its entirety by collateral estoppel, it questioned whether some specific challenges were so barred.

Due to the deficiencies in analysis of the traffic impacts on Monterey Highway, the court denied the motion for discharge of the writ. The court issued a supplemental peremptory writ ordering the Authority to rescind and set aside the resolution certifying the revised final PEIR (Town of Atherton v. California High-Speed Rail Authority (Super. Ct. Sacramento County, 2011, No. 3420080000679CUWM605) (Atherton II)).

Dissatisfied with only a partial victory, both the Atherton I petitioners and the Atherton II petitioners (collectively petitioners) appealed.

DISCUSSION

I

Federal Preemption

The Authority contends this case must be dismissed because federal law, specifically the ICC Termination Act of 1995 (ICCTA) (49 U.S.C. § 701 et seq.), preempts state environmental law, including CEQA, in this case.

We agree with amicus curiae Citizens for California High-Speed Rail Accountability (CCHRA) that “[preemption under ICCTA is a complex, difficult, and controversial subject.” We do not find the answer to the question of whether the ICCTA preempts CEQA in this case as certain as the Authority argues. We need not wade into the various complexities and intricacies presented by the broader question of federal preemption, because on the specific record before us it is clear that an exception to preemption, namely the market participation doctrine, applies. Here, it is the sole responsibility of the state to determine the route of the HST, as well as to acquire the necessary property, and construct and operate the HST. Due to the state’s proprietary role with respect to the HST, as well as the provisions of Proposition 1A (the voter-approved initiative bond measure to fund the HST) and the Authority’s established practice of complying with CEQA, the market participation doctrine applies.

A. Background

“Effective January 1, 1996, the ICCTA abolished the Interstate Commerce Commission (ICC) and created a new Surface Transportation Board (STB) to regulate, inter alla, rail transportation in the United States. [Citations.] The purpose of the ICCTA is to ‘buildf] on the deregulatory policies that have promoted growth and stability in the surface transportation sector.’ [Citation.] With respect to rail transportation, the ICCTA seeks to implement a ‘[fjederal scheme of minimal regulation for this intrinsically interstate form of transportation,’ and to retain only regulations ‘that are necessary to maintain a “safety net” or “backstop” of remedies to address problems of rates, access to facilities, and industry restructuring.’ [Citations.]” (Elam v. Kansas City Southern Railway Co. (5th Cir. 2011) 635 F.3d 796, 804 (Elam).)

In March 2013, the Authority filed with the federal Surface Transportation Board (STB) a petition for exemption from the prior approval requirements of 49 United States Code section 10901 to construct an approximately 65-mile dedicated high-speed passenger rail line between Merced and Fresno, California (the first of nine sections of the HST). Concurrently, the Authority filed a motion to dismiss the petition, arguing that the STB lacked jurisdiction because the HST would be located entirely within California, would provide only intrastate transportation, and was not part of an interstate rail network. (California High-Speed Rail Authority — Construction Exemption — in Merced, Madera and Fresno Counties, Cal. (STB, Apr. 18, 2013, No. FD 35724) 2013 STB Lexis 126, p. *2).) The STB denied the motion to dismiss, finding it had jurisdiction over construction of the HST. (Id. at pp. *3-*4.)

In a June 13, 2013, decision, the STB set forth its reasons for finding it had jurisdiction over the HST. “Under 49 U.S.C. § 10501(a)(2)(A), the Board has jurisdiction over transportation by rail carrier between a place in a state and a place in the same state, as long as that intrastate transportation is carried out ‘as part of the interstate rail network.’ ” (California High-Speed Rail Authority — Construction Exemption — in Merced, Madera and Fresno Counties, Cal. (STB, June 13, 2013, No. FD 35724) 2013 STB Lexis 180, p. *24 (STB June Decision)) The STB concluded that due to the interconnectivity of the HST system with Amtrak lines, the HST would be constructed as part of the interstate rail network and, therefore, the STB had jurisdiction. (Ibid.)

In late June 2013, after we had calendared this case for oral argument, the Authority requested from us a continuance of oral argument and permission to file a supplemental brief based on the STB June Decision we described ante. The Authority requested additional time to examine the STB’s jurisdictional decision and its potential application to this case. The Authority cited to City of Auburn v. U.S. Government (9th Cir. 1998) 154 F.3d 1025 (City of Auburn), which broadly held that state and local permitting laws regarding railroad operations were preempted by ICCTA.

Petitioners opposed the request to continue, arguing, inter alla, that the issue of preemption had been waived by the failure to raise it in the trial court.

We granted the continuance and requested supplemental briefing. We asked the parties to brief the answers to two questions: (1) Does federal law preempt state environmental law with respect to California’s high-speed rail system? and (2) Assuming federal law does, in fact, preempt state law in this area, is the preemption in the nature of an affirmative defense that is forfeited if not raised in the trial court or is the preemption jurisdictional in nature?

The Authority’s supplemental brief answered that the ICCTA preempted a CEQA remedy in this appeal and the preemption is jurisdictional in nature. Petitioners answered that federal preemption under the ICCTA did not apply to the Authority’s compliance with CEQA because CEQA was informational rather than regulatory and because the market participation exception to preemption applied. Petitioners further asserted that because the Authority’s compliance with CEQA was not jurisdictionally preempted, any preemptive claim that the project did not have to comply with CEQA was forfeited.

B, Preemption Under the ICCTA

Under the supremacy clause of the United States Constitution, the federal Constitution and federal laws are “the supreme law of the land.” (U.S. Const., art. VI, cl. 2.) “The doctrine of preemption gives force to the supremacy clause.” (People v. Burlington Northern Santa Fe Railroad (2012) 209 Cal.App.4th 1513, 1521 [148 Cal.Rptr.3d 243].) “The United States Supreme Court has recognized three types of preemption under the supremacy clause; express preemption, conflict preemption, and field preemption. [Citation.]” (Ibid.)

The ICCTA contains an express preemption provision; it “creates exclusive federal regulatory jurisdiction and exclusive federal remedies.” (Elam, supra, 635 F.3d at p. 804.) The STB has jurisdiction over transportation by rail carrier that is within the same state if it is “part of the interstate rail network.” (49 U.S.C. § 10501(a)(1)(A) & (2)(A).) The STB has exclusive jurisdiction over “the construction, acquisition, operation, abandonment, or discontinuance of spur, industrial, team, switching, or side tracks, or facilities, even if the tracks are located, or intended to be located, entirely in one State.” (Id., § 10501(b)(2).) This subdivision further provides: “the remedies provided under this part [citation] with respect to regulation of rail transportation are exclusive and preempt the remedies provided under Federal or State law.” {Ibid.) “It is difficult to imagine a broader statement of Congress’s intent to preempt state regulatory authority over railroad operations.” (CSX Transportation, Inc. v. Georgia Public Serv. Com. (N.D.Ga. 1996) 944 F.Supp. 1573, 1581 (CSX).) This provision continues the historic extensive federal regulation of railroads. (Fayard v. Northeast Vehicle Services, LLC (1st Cir. 2008) 533 F.3d 42, 46; see Chicago &N.W. Tr. Co. v. Kalo Brick & Tile Co. (1981) 450 U.S. 311, 318 [67 L.Ed.2d 258, 265, 101 S.Ct. 1124] [“The Interstate Commerce Act is among the most pervasive and comprehensive of federal regulatory schemes . . . .”].)

“[Although ICCTA’s pre-emption language is unquestionably broad, it does not categorically sweep up all state regulation that touches upon railroads — interference with rail transportation must always be demonstrated.” (Island Park, LLC v. CSX Transportation (2d Cir. 2009) 559 F.3d 96, 104.) “[S]tote actions are ‘categorically’ or ‘facially’ preempted where they ‘would directly conflict with exclusive federal regulation of railroads.’ [Citation.] Courts and the STB have recognized ‘two broad categories of state and local actions’ that are categorically preempted regardless of the context of the action: (1) ‘any form of state or local permitting or preclearance that, by its nature, could be used to deny a railroad the ability to conduct some part of its operations or to proceed with activities that the [STB] has authorized’ and (2) ‘state or local regulation of matters directly regulated by the [STB] — such as the construction, operation, and abandonment of rail lines; railroad mergers, line acquisitions, and other forms of consolidation; and railroad rates and service.’ [Citations.] Because these categories of state regulation are 'per se unreasonable interference with interstate commerce,’ ‘the preemption analysis is addressed not to the reasonableness of the particular state or local action, but rather to the act of regulation itself.’ [Citations.] Second, those state actions that do not fall into one of these categories may be preempted as applied: ‘For state or local actions that are not facially preempted, the section 10501(b) preemption analysis requires a factual assessment of whether that action would have the effect of preventing or unreasonably interfering with railroad transportation.’ [Citation.]” (Adrian & Blissfield Railroad Co. v. Village of Blissfield (6th Cir. 2008) 550 F.3d 533, 540 (Adrian).)

Case law demonstrates that the ICCTA does not preempt all state and local regulations. “The circuits appear generally, for example, to find preemption of environmental regulations, or similar exercises of police powers relating to public health or safety, only when the state regulations are either discriminatory or unduly burdensome.” (Fayus Enterprises v. BNSF Railway (D.C. Cir. 2010) 390 U.S. App.D.C. 213 [602 F.3d 444, 451] (Fayus).) “It therefore appears that states and towns may exercise traditional police powers over the development of railroad property, at least to the extent that the regulations protect public health and safety, are settled and defined, can be obeyed with reasonable certainty, entail no extended or open-ended delays, and can be approved (or rejected) without the exercise of discretion on subjective questions. Electrical, plumbing and fire codes, direct environmental regulations enacted for the protection of the public health and safety, and other generally applicable, non-discriminatory regulations and permit requirements would seem to withstand preemption. [Citation.]” (Green Mountain Railroad Corp. v. Vermont (2d Cir. 2005) 404 F.3d 638, 643 (Green Mountain).)

While the ICCTA’s preemption is not limited to explicit economic regulation (New York Susquehanna v. Jackson (3rd Cir. 2007) 500 F.3d 238, 252 (New York Susquehanna), “Congress was particularly concerned about state economic regulation of railroads when it enacted the ICCTA.” (Elam, supra, 635 F.3d at p. 805.) “What matters is the degree to which the challenged regulation burdens rail transportation, not whether it is styled as ‘economic’ or ‘environmental.’ ” (New York Susquehanna, supra, 500 F.3d at p. 252.)

The Authority may raise the issue of federal preemption for the first time on appeal. The ICCTA “completely preempts state laws (and remedies based on such laws) that directly attempt to manage or govern a railroad’s decisions in the economic realm.” (Elam, supra, 635 F.3d at p. 807.) “[C]omplete preemption is jurisdictional in nature . . . .” (PCI Transportation, Inc. v. Fort Worth & Western Railroad Co. (5th Cir. 2005) 418 F.3d 535, 543.) The lack of jurisdiction may be raised for the first time on appeal. (Consolidated Theatres, Inc. v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 721 [73 Cal.Rptr. 213, 447 P.2d 325]; ReadyLink Healthcare, Inc. v. Jones (2012) 210 Cal.App.4th 1166, 1175 [148 Cal.Rptr.3d 881] [deciding issue of federal preemption raised for the first time on appeal].)

C. The Authority’s Contention

Relying on City of Auburn, supra, 154 F.3d 1025, the Authority contends that CEQA is an environmental preclearance statute that is facially preempted by the ICCTA. In City of Auburn, a railroad sought to reacquire a segment of the Stampede Pass rail line and to repair and improve it. (154 F.3d at pp. 1027-1028.) Initially, the railroad applied to the local authority for a permit, but later contended that local environmental review was precluded by the federal regulation of railroads. In response, King County requested and obtained a formal declaratory order from the STB that the ICCTA preempted the county’s environmental review. (154 F.3d at p. 1028) The STB approved the railroad’s proposal for reacquisition and improvement of the Stampede Pass line. (Id. at pp. 1028-1029.)

The City of Auburn challenged the STB decision. It argued the legislative history of the ICCTA established that Congress intended to preempt only economic regulation, not the traditional state police power of environmental review. (City of Auburn, supra, 154 F.3d at p. 1029.) The Ninth Circuit disagreed; it found no evidence that Congress intended states to have any role in the regulation of railroads. (Id. at p. 1031.) Further, given the broad language of 49 United States Code section 10501(b)(2), it found “the distinction between ‘economic’ and ‘environmental’ regulation begins to blur. For if local authorities have the ability to impose ‘environmental’ permitting regulations on the railroad, such power will in fact amount to ‘economic regulation’ if the carrier is prevented from constructing, acquiring, operating, abandoning, or discontinuing a line.” (City of Auburn, at p. 1031.)

In Green Mountain, supra, 404 F.3d 638, the railroad proposed to build transloading facilities (to transfer goods from one mode of transportation to another) and sought a declaration that Vermont’s environmental land use law, mandating a preconstruction permit for land development, was preempted by the ICCTA. Relying on City of Auburn, the Second Circuit found preemption. (Green Mountain, supra, 404 F.3d at pp. 642-643.) The court noted that other federal courts and the STB had recognized that the ICCTA preempts most state and local preconstruction permit requirements. (404 F.3d at p. 642.)

Under circumstances that differ from those here and involve a private railroad, the STB has found the ICCTA preempts CEQA, relying on City of Auburn. In DesertXpress Enterprises, LLC — Petition for Declaratory Order (STB, June 27, 2007, No. FD 34914) 2007 STB Lexis 343, the petitioner proposed to construct an approximately 200-mile interstate high-speed passenger rail system between Victorville, California, and Las Vegas, Nevada. It sought a declaratory order that federal law preempted state and local land use restrictions, permitting requirements, and environmental laws. (Id. at p. *3.) The STB agreed; while federal environmental laws would apply, “state permitting and land use requirements that would apply to non-rail projects, such as [CEQA], will be preempted.” (Id. at p. *11.)

We do not deem City of Auburn to provide the definitive answer to the question of federal preemption in this case. Although City of Auburn spoke of “environmental review laws” (City of Auburn, supra, 154 F.3d at p. 1027), which would appear to include CEQA, the case concerned only permitting laws (City of Auburn, at pp. 1029, 1031), as did Green Mountain, supra, 404 F.3d at page 643. The STB decision under review in City of Auburn noted it was the permitting “process itself’ that was “objectionable.” (Kings County, WA — Petition for Declaratory Order — Burlington Northern Railroad Company — Stampede Pass Line (STB, Sept. 25, 1996, No. FD 33095) 1996 STB Lexis 236, p. *11.) It is clear that denial of a permit can be “ ‘used to deny a railroad the ability to conduct some part of its operations or to proceed with activities that the [STB] has authorized,’ ” and thus the permitting process is preempted. (Adrian, supra, 550 F.3d at p. 540) It is less clear and certainly subject to dispute whether requiring review under CEQA before deciding on the alignment of the HST from the Central Valley to the San Francisco Bay Area has a comparable potential effect to deny the railroad the ability to conduct its operations and activities.

In City of Auburn, the court was reviewing a decision of the STB that found the permitting laws at issue preempted by the ICCTA. (City of Auburn, supra, 154 F.3d at p. 1027.) As we noted ante, here the STB June Decision made no finding as to preemption, nor was it asked to. Indeed, the STB June Decision, which addressed only the portion of the HST between Merced and Fresno (and not the alignment at issue here), did not mention preemption. The decision came after extensive state and federal environmental review had been completed, including preparation of an environmental impact study. (STB June Decision, supra, 2013 STB Lexis 180, at p. *13.) Further, federal cases subsequent to City of Auburn have found ICCTA does not preempt all state and local environmental laws, as discussed ante. The District of Columbia Circuit even described City of Auburn as “seeming to apply a broader preemption rule.” (Fayus, supra, 602 F.3d at p. 451.)

We need not, however, wade further into these weeds. Assuming without deciding that the ICCTA preempts CEQA as to the HST, at least one exception to preemption applies here. The applicability stems from the nature of the project at issue here. We are not faced with a private railroad company seeking to construct a rail line without having to comply with state regulations. Rather, it is the state that is constructing the rail line, financed by

bonds which were approved by the state’s electorate in Proposition 1A. (Sts. & Hy. Code, § 2704 et seq.) Proposition 1A, as we discuss post, included compliance with CEQA as a feature of the HST. The state created the Authority to direct development and implementation of the HST. (Pub. Util. Code, § 185030.) From at least 2000 until the present, the Authority has complied with CEQA with respect to planning the HST. It is these factors— state ownership of the HST, Proposition 1A, and years of the Authority’s compliance with CEQA — that provide the basis for finding an exception to preemption under the market participation doctrine. Because we find that doctrine applies, we need not consider the alternate argument, proffered by amicus curiae POH, that state sovereignty defeats preemption.

D. Market Participation Doctrine

1. In General

The United States Supreme Court first recognized the market participant doctrine in Hughes v. Alexandria Scrap Corp. (1976) 426 U.S. 794 [49 L.Ed.2d 220, 96 S.Ct. 2488], upholding a Maryland law that imposed extra documentation requirements on out-of-state processors of scrap metal who sought to receive bounties from the state for converting junk cars into scrap. “The market participant doctrine distinguishes between a state’s role as a regulator, on the one hand, and its role as a market participant, on the other. Actions taken by a state or its subdivision as a market participant are generally protected from federal preemption.” (Engine Manufacturers Assn. v. South Coast Air Quality Maintenance District (9th Cir. 2007) 498 F.3d 1031, 1040 (Engine Manufacturers).) “[W]hen government agencies are acting in their capacity as the owners of property or purchasers of goods and services, they are not making policy or acting as regulators and largely have the same freedom to protect their interests as do private individuals and entities . . . .” (Associated General Contractors of America v. San Diego Unified School Dist. (2011) 195 Cal.App.4th 748, 757 [125 Cal.Rptr.3d 698].)

The market participation doctrine recognizes considerations of state sovereignty, the state’s role “as guardian and trustee for its people,” and the right of a private business to exercise discretion as to those with whom it will deal. (Reeves, Inc. v. Stake (1980) 447 U.S. 429, 436 [65 L.Ed.2d 244, 252, 100 S.Ct. 2271].) “Evenhandedness suggests that, when acting as proprietors, States should similarly share existing freedoms from federal constraints, including the inherent limits of the Commerce Clause.” (Id. at p. 439 [65 L.Ed.2d at pp. 252-253].) Analysis in a market participation case involves “a single inquiry: whether the challenged ‘program constituted direct state participation in the market.’ ” (Id. at p. 436, fn. 7 [65 L.Ed.2d at p. 250].)

The doctrine has been applied “to protect proprietary state action from preemption by various federal statutes.” (Engine Manufacturers, supra, 498 F.3d at p. 1040.) In the preemption context, the market participation exception applies because a state does not regulate when it takes proprietary actions in the market. (Building & Constr. Trades Council v. Associated Builders & Contractors of Mass./R. I., Inc. (1993) 507 U.S. 218, 227 [122 L.Ed.2d 565, 576, 113 S.Ct. 1190] (Boston Harbor).) “In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction. [Citation.]” (Id. at pp. 231-232 [122 L.Ed.2d at p. 579].)

“In distinguishing between proprietary action that is immune from preemption and impermissible attempts to regulate through the spending power, the key under Boston Harbor is to focus on two questions. First, does the challenged action essentially reflect the entity’s own interest in its efficient procurement of needed goods and services, as measured by comparison with the typical behavior of private parties in similar circumstances? Second, does the narrow scope of the challenged action defeat an inference that its primary goal was to encourage a general policy rather than address a specific proprietary problem? Both questions seek to isolate a class of government interactions with the market that are so narrowly focused, and so in keeping with the ordinary behavior of private parties, that a regulatory impulse can be safely ruled out.” (Cardinal Towing v. City of Bedford, Texas (5th Cir. 1999) 180 F.3d 686, 693 (Cardinal Towing).)

The Ninth Circuit has held this test applies in the alternative. “The Cardinal Towing test thus offers two alternative ways to show that a state action constitutes non-regulatory market participation: (1) a state can affirmatively show that its action is proprietary by showing that the challenged conduct reflects its interest in efficiently procuring goods or services, or (2) it can prove a negative — that the action is not regulatory — by pointing to the narrow scope of the challenged action. We see no reason to require a state to show both that its action is proprietary and that the action is not regulatory.” (Johnson v. Rancho Santiago Community College Dist. (9th Cir. 2010) 623 F.3d 1011, 1024.) We agree that Cardinal Towing provides an alternative test; a state action need satisfy only one of the two Cardinal Towing prongs to qualify for the market participation exception to preemption.

The market participation doctrine has been applied to defeat preemption where the state’s concern was environmental. In Engine Manufacturers, supra, 498 F.3d 1031, the Ninth Circuit upheld fleet rules that directed state and local governments to choose vehicles that met certain emissions standards or contained certain alternative-fuel engines for vehicle fleets against a challenge that such roles were preempted by the federal Clean Air Act (42 U.S.C. § 7401 et seq.). The court rejected the contention that the market participation doctrine did not apply in cases of express preemption, noting that Boston Harbor does not support a distinction between express and other kinds of preemption. (Engine Manufacturers, supra, 498 F.3d at p. 1044.) Further, the court rejected the argument that the roles were not concerned with “ ‘efficient procurement.’ ” (Id. at p. 1046.) “That a state or local governmental entity may have policy goals that it seeks to further through its participation in the market does not preclude the doctrine’s application, so long as the action in question is the state’s own market participation.” (Ibid.) The efficient procurement of goods and services is not limited to the cheapest procurement. “In context, ‘efficient procurement’ means procurement that serves the state’s purposes — which may include purposes other than saving money — just as private entities serve their purposes by taking into account factors other than price in their procurement decisions.” (Ibid.)

2. Application to This Case

Petitioners, as well as amici curiae CCHRA and POH, argue the first prong of the Cardinal Towing test is met. Undergoing full CEQA review of the decision for the alignment of the Central Valley to Bay Area portion of the HST serves the state’s interest in reducing adverse environmental impacts as part of its proprietary action in owning and constructing the HST.

First, the Authority responds broadly that the ICCTA applies to government railroads. (See California v. Taylor (1957) 353 U.S. 553 [1 L.Ed.2d 1034, 77 S.Ct. 1037] [federal Railway Labor Act (45 U.S.C. § 151 et seq.) applies to railroad owned and operated by state and engaged in interstate commerce].) But this is not always the case, as we have discussed. The Authority relies on an unpublished decision where a federal court found the ICCTA preempted a CEQA claim concerning a railroad owned and operated by a governmental entity. (City of Encinitas v. North San Diego County Transit Development Bd. (S.D.Cal., Jan. 14, 2002, No. 01-CV-1734-J (AJB)) 2002 U.S.Dist. Lexis 28531.) The City of Encinitas filed an action challenging the proposed construction and operation of a railroad passing track by defendants North San Diego County Transit Development Board, doing business as North County Transit District, claiming the district failed to comply with CEQA and other state laws. The district had filed a notice of exemption from CEQA. (City of Encinatas, at p. *4.) Relying on City of Auburn, the court found the action preempted by the ICCTA. (City of Encinatas, at p. *4.) The case is distinguishable from the situation we face here because the railroad owner never accepted that it had to comply with CEQA and the opinion does not discuss the market participation doctrine.

“ ' “It is axiomatic that cases are not authority for propositions not considered.” ’ [Citation.]” (McWilliams v. City of Long Beach (2013) 56 Cal.4th 613, 626 [155 Cal.Rptr.3d 817, 300 P.3d 886].)

Although the Authority notes there is no case applying the market participation doctrine to defeat a claim of preemption under the ICCTA, it does not argue that the doctrine never applies to defeat such preemption. Indeed, the Authority claims to reserve the power to assert the market participation doctrine in the future, an implicit concession that the doctrine applies. The Authority asserts the doctrine does not apply in this case for other reasons— the most obvious of which is that it has decided not to “assert” it.

The Authority asserts it has not engaged in any proprietary action in complying with CEQA in the preparation of the final revised PEIR at issue here. “[T]he Authority has not acted in a proprietary capacity to develop its own rules or standards for environmental review of the programmatic route decision or the high-speed train project in general. In preparing the Program EIR, the Authority was simply complying with a state environmental review statute, CEQA, in good faith until the STB assumed jurisdiction over the project, thereby preempting any further CEQA remedy.”

Preliminarily, we take issue with the Authority’s view that it was the STB June Decision that preempted CEQA. We agree with amicus curiae Union Pacific Railroad Company that the basis for preemption is solely the language of the ICCTA, not the discretion of the STB. (See Green Mountain, supra, 404 F.3d at pp. 641-642.)

We turn now to the question of whether the Authority has taken a proprietary action to comply with CEQA, and thus met the first prong of the Cardinal Towing test. Petitioners (and some amici curiae) contend that the Authority is mandated to comply with CEQA and this was understood by the voters in enacting Proposition 1A, the bond measure that funds the HST. The Authority, as a public entity, is required to comply with CEQA on all projects. (Pub. Resources Code, § 21080.) The Legislature did not exempt the HST from compliance with CEQA. The reasonable inference, therefore, was that the Legislature intended the HST to comply with CEQA and that Proposition 1A was presented to the voters with the expectation that CEQA would apply and the voters ratified the proposition based on this expectation.

This reasonable inference is reinforced by various provisions of Proposition 1A that refer to past and future environmental studies for the HST. In providing for funds to construct the HST, Proposition 1A indicates that construction will be “consistent with the authority’s certified environmental impact reports of November 2005 and July 9, 2008.” (Sts. & Hy. Code, § 2704.04, subd. (a).) The proceeds from the sale of $9 billion of bonds shall be available for planning and capital costs “consistent with the authority’s certified environmental impact reports of November 2005 and July 9, 2008, as subsequently modified pursuant to environmental studies conducted by the authority.” (Id., § 2704.06.) There is a limitation upon the amount of bond proceeds used for environmental studies. (Id., § 2704.08, subd. (b).) The funding plan must certify that “[t]he authority has completed all necessary project level environmental clearances necessary to proceed to construction.” (Id., § 2704.08, subd. (c)(2)(E).)

To further establish the Legislature’s intent that the Authority must comply with CEQA, amicus curiae POH requests that this court take judicial notice of a letter from Senator Mark Leno (the Leno Letter) contained in the Senate Daily Journal for the 2011-2012 Regular Session at pages 4447M-448. The Leno Letter is intended to clarify certain matters addressed in Senate Bill No. 1029 (2011-2012 Reg. Sess.), which amended the Budget Act of 2012, pertaining to funds for the HST. One provision in Senate Bill No. 1029 (2011-2012 Reg. Sess.) contained identical language to that in Proposition 1A (Sts. & Hy. Code, § 2704.08, subd. (c)(2)(E)) — completion of “all necessary project level environmental clearances necessary to proceed to construction.” (Stats. 2012, ch. 152, § 3.) The Leno Letter explains, “It is the intent of this provision that no funds appropriated under this item shall be encumbered for construction of a project prior to compliance with CEQA and the National Environmental Policy Act.” (Sen. Daily J. (2011-2012 Reg. Sess.) p. 4448.)

The Authority opposes this request, claiming the Leno Letter is not relevant.

We grant the request for judicial notice. (Evid. Code, § 452, subd. (c); Greystone Homes, Inc. v. Midtec, Inc. (2008) 168 Cal.App.4th 1194, 1222 [86 Cal.Rptr.3d 196] [taking judicial notice of senator’s letter published in Sen. Daily J.].) While the Leno Letter does not address directly the Legislature’s intent as to Proposition 1A, as the letter was written four years later with respect to different legislation, it does provide support for the position that the Legislature intended the HST to comply with CEQA. The Leno Letter is evidence of the Legislature’s intent as to Senate Bill No. 1029 (2011-2012 Reg. Sess.). (City of Long Beach v. Department of Industrial Relations (2004) 34 Cal.4th 942, 952 [22 Cal.Rptr.3d 518, 102 P.3d 904].) And the language of Proposition 1A is identical to that in Senate Bill No. 1029 (2011-2012 Reg. Sess.). “[U]nless there is evidence the Legislature had a contrary intent, logic and consistency suggest the same language in analogous statutes should be construed the same way.” (Musaelian v. Adams (2009) 45 Cal.4th 512, 517 [87 Cal.Rptr.3d 475, 198 P.3d 560].)

Yet another factor showing that the Authority would comply with CEQA in building the HST and that the voters so understood when they approved Proposition 1A is the Authority’s long-standing practice of complying with CEQA in connection with the HST’s construction. The Authority admits it has complied with CEQA, preparing and defending EIR’s, since 2000. The STB has held that a railroad’s voluntary agreement can be enforced notwithstanding the express preemption provision of 49 United States Code section 10501(b), because preemption should not be used to shield one from its commitments. “ ‘[Voluntary agreements must be seen as reflecting the carrier’s own determination and admission that the agreements would not unreasonably interfere with interstate commerce.’ [Citation.]” (Joint Petition for Declaratory Order — Boston and Maine Corporation and Town of Ayer, MA. (STB, Apr. 30, 2001, No. ED 33971) 2001 STB Lexis 435, pp. *18-* 19.) Although the Authority argues there is no agreement here, a voter-approved bond measure is characterized as “either contractual or as analogous to contract.” (Manette-Shaw v. San Francisco Bd. of Supervisors (2006) 139 Cal.App.4th 1210, 1215 [43 Cal.Rptr.3d 659].)

As we discussed briefly ante, the Authority contends that it alone can invoke the market participation doctrine as an exception to federal preemption of CEQA. It notes that petitioners and amici curiae cite only cases where the doctrine was used defensively by a public entity to protect actions it elected to take in the market. It provides no authority supporting the argument that the power to “invoke” the doctrine is reserved for it to selectively assert in order to exempt those projects of its choosing from federal preemption. This case is unusual to say the least; the state entity, represented by the state’s Attorney General, is inexplicably arguing for federal preemption instead of defending the application of state law. We would better understand if the Authority’s position was that federal law preempts CEQA and there is nothing the state can do to change that result — like it or not, the law is the law and all must abide by it. The Authority, however, admits the market participation doctrine could apply, apparently if the state chose not to oppose its application, and it “remains free to assert the market participant exception to federal preemption in exercising its proprietary judgment and discretion.” The Authority’s position appears to be that it alone has discretion to decide whether to require its project, the HST, to comply with CEQA. It argues that forcing it to “take actions that the Authority in its discretion law [sic] has elected not to pursue, would turn the market participation doctrine on its head.” In making this argument, the Authority ignores that its power is circumscribed by the provisions of Proposition 1A, the voter-approved bond measure to fund the HST. The Authority’s discretion is not unfettered; it must follow the directives of the electorate. As explained ante, one of those directives is compliance with CEQA.

The Authority offers no direct authority for its proposition that only a state entity can invoke the market participation doctrine. It is clear that citizens have standing to bring suits to enforce CEQA. (See Rialto Citizens for Responsible Growth v. City of Rialto (2012) 208 Cal.App.4th 899, 912-916 [146 Cal.Rptr.3d 12] (Rialto).) Here, invoking the market participation doctrine is part of petitioners’ challenge to the final revised PEIR.

Finally, the Authority contends the market participation doctrine “is not triggered by the presence of a generally applicable state regulatory law — here CEQA — standing alone.” It relies on a series of cases brought against DHL in Florida, New York and California under their respective false claims acts (the Grupp cases). In DHL Express (USA), Inc. v. State ex rel. Grupp (Fla.Dist.Ct.App. 2011) 60 So.3d 426 (Grupp), the State of Florida contracted with DHL to provide courier services; the contract permitted DHL to impose aviation and diesel fuel surcharges. Grupp and Moll brought suit against DHL under the Florida False Claims Act, contending DHL improperly billed for surcharges. DHL moved to dismiss, contending the action was preempted by federal law. (60 So.3d at p. 427.) Grupp and Moll argued their suit did not fall within the preemption provisions of federal law, and if it did, the market participant exception applied. (Id. at p. 428.)

The Florida court found preemption under the “sweeping reach in the preemption clauses” of federal law. (Grupp, supra, 60 So.3d at p. 428.) Although the court found Florida acted as a market participant in contracting with DHL, “it acts as a regulator in authorizing suits under the False Claims Act which, as noted above, serve to deter future behaviors on the part of the defendants. [Citation.] In the latter role, the state (and respondents’ on the state’s behalf) is not a market participant.” (Id. at p. 429.)

The New York Court of Appeals reached the same result in a related case, State of New York ex rel. Grupp v. DHL Express (USA), Inc. (2012) 19 N.Y.3d 278 [947 N.Y.S.2d 368, 970 N.E.2d 391]. There, Grupp and Moll brought a similar action against DHL under the New York False Claims Act (FCA). (State of New York ex rel. Grupp, at p. 281.) As in Florida, the court found federal preemption and that the market participation doctrine did not apply. (Id. at pp. 285-286.) The court explained that although New York acted in a proprietary capacity in procuring the services of DHL, the FCA, with its civil penalties and treble damages, “evinces a broader punitive goal of deterring fraudulent conduct against the State. That is, instead of compensating the State for damages caused by DHL’s purported scheme and addressing its narrow proprietary interests, the FCA would punish and consequently deter such future conduct, thereby promoting a general policy [citation].” (State of New York ex rel. Grupp, at pp. 286-287.) For the same reasons, the California appellate court agreed that the market participation exception did not apply in its Grupp case. “[T]he State Act’s primary goal is the public policy of protecting public funds, and also deterring and punishing fraudulent claims, rather than a specific proprietary concern, such as the need for delivery services.” (Grupp v. DHL Express (USA), Inc. (2014) 225 Cal.App.4th 510, 524 [170 Cal.Rptr.3d 349], review granted July 30, 2014, S218754.)

We find these cases distinguishable. Preliminarily, we note that in none of the Grupp cases did the court rule that only the state could invoke the market participation doctrine. Further, in this case both the law at issue and the effect of applying the market participation doctrine are different than in the Grupp cases. Unlike the false claims acts at issue in the Grupp cases, CEQA has no provision for civil penalties or treble damages; CEQA has no intent to punish and deter wrongdoing. The purpose of CEQA is “to protect and maintain California’s environmental quality.” (Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 106 [126 Cal.Rptr.2d 441].) While the plaintiffs in the Grupp cases sought to regulate the behavior of a third party, DHL, the remedy sought here would apply only to this final revised PEIR. Here, application of the market participation doctrine will serve to regulate only the state’s own behavior, and such regulation was agreed to by the state and required by Proposition 1A.

E. Requests for Judicial Notice

In addition to the request by amicus curiae POH for judicial notice of the Leno Letter, which we grant as explained ante, we have received other requests for judicial notice. Petitioners request we take judicial notice of the corporate code of conduct of Google, Inc., an article on corporate initiative on environmental and social issues, the testimony of the STB chair on reauthorization of the STB, and that the Authority is within the state Transportation Agency. The Authority requests that we take judicial notice of the fact that amicus curiae POH participated in the STB proceedings and of letters POH submitted asking the STB to exercise jurisdiction over the HST. We deny the requests as these matters are irrelevant. (People v. McKinzie (2012) 54 Cal.4th 1302, 1326 [144 Cal.Rptr.3d 427, 281 P.3d 412] [court will take judicial notice of only relevant matters].)

Having determined that an exception to preemption, namely the market participation doctrine, applies such that federal law does not preempt petitioners’ claims in this case, we proceed to address those claims on their merits.

II

Failure to Discuss Impacts of Elevated Vertical Alignment

Petitioners contend the revised final PEIR was inadequate because it failed to identify significant new or increased impacts due to the elevated vertical alignment of the HST through a portion of the Peninsula.

A. Background

The Authority explained that the revised final PEIR was a first tier program EIR, focusing on the broad policy choices ripe for decision: which network alternative and alignment alternatives should connect the Bay Area to the Central Valley and which station location options should be chosen. “The focus of the analysis is the programmatic environmental impacts associated with different network alternatives to connect the Bay Area to the Central Valley for the HST system. The network alternatives and station location options are defined conceptually, and the level of detail for impacts analysis and mitigation strategies is commensurately broad and general.” A second tier EIR would provide more detailed, site-specific impacts analyses. Accordingly, the PEIR contained only a general discussion of the project’s impacts relating to aesthetics and visual resources and noise and vibration.

One comment to the revised draft PEIR had been that the alignment of the HST through the Peninsula was likely to be by means of aerial viaducts or raised berms and elevated trains posed problems in residential neighborhoods. The Authority responded: “The Bay Area to Central Valley High-Speed Train HST Program environmental process did not select a vertical alignment. However, the precise alignment and profile options for the HST system in the Caltrain Corridor will be evaluated and refined as a part of the project-level preliminary engineering and environmental review if this corridor moves forward.”

Because the trial court denied the Atherton I petitioners’ request for a stay of project-level environmental studies, the Authority continued analysis at the project level while the revised final PEIR was being prepared. A June 2010 preliminary alternatives analysis report indicated that various alternative vertical alignments — such as aerial viaduct, berm, at grade, covered trench/tunnel, and deep tunnel — were carried forward for additional study and analysis.

In August 2010, a month before the September 2010 certification of the revised final PEIR, the Authority issued a supplemental alternatives analysis report (SAAR) as part of its project-level analysis. The SAAR concluded that

an elevated structure, or aerial viaduct, was the only feasible alignment for the Belmont — San Carlos — Redwood City portion of the HST route. This portion of the route was designated as subsections 4B(2) and 4C in the SAAR. For these subsections, only the aerial viaduct was carried forward for further analysis.

For subsection 4B(2), the SAAR found a deep tunnel impractical due to ground conditions, construction issues, and cost. A covered trench and tunnel required a greater right-of-way than an aerial structure and required addressing significant ventilation and safety issues. For the 4C portion through Redwood City, the profile had been developed to satisfy the city’s request that Whipple Road remain at its existing elevation. A short trench section might be possible in downtown if the Whipple Road elevation were modified.

The trial court rejected petitioners’ argument that the Authority was required to address the impact of the project-level decision for aerial viaducts in the program-level EIR. The court found the Authority properly used tiering in its analysis of the project. Under the tiering scheme, the Authority could properly defer analysis of site-specific details, such as the aerial viaduct vertical alignment, to the second tier project-level analysis.

On appeal, petitioners contend tiering is appropriate only when the impacts are not determined by the first tier approval decision. They assert that the SAAR eliminated all possible vertical alignments for the Belmont — San Carlos — Redwood City corridor except one, the aerial viaduct. They contend the SAAR showed that the decision to use the Pacheco Pass route mandated the use of aerial viaducts in these areas. Thus, the elevated alignment was a foreseeable part of the future project and should have been discussed in the PEIR, and not deferred to the project-level analysis.

B. Program EIR’s and Tiering

The EIR at issue here is a program EIR. A program EIR is “an EIR which may be prepared on a series of actions that can be characterized as one large project” and are related in specified ways. (Cal. Code Regs., tit. 14, § 15168, subd. (a).) Program EIR’s offer several advantages. A program EIR can: “(1) Provide an occasion for a more exhaustive consideration of effects and alternatives than would be practical in an EIR on an individual action, HQ (2) Ensure consideration of cumulative impacts that might be slighted in a case-by-case analysis, [¶] (3) Avoid duplicative reconsideration of basic policy considerations, HQ (4) Allow the lead agency to consider broad policy alternatives and program wide mitigation measures at an early time when the agency has greater flexibility to deal with basic problems or cumulative impacts, [and] [][] (5) Allow reduction in paperwork.” (CEQA Guidelines, § 15168, subd. (b).) A program EIR is distinct from a project EIR, which is prepared for a specific project and must examine in detail site-specific considerations. (CEQA Guidelines, § 15161.)

“Program EIR’s are commonly used in conjunction with the process of tiering. [Citation.] Tiering is ‘the coverage of general matters in broader EIRs (such as on general plans or policy statements) with subsequent narrower EIRs . . . .’ ([CEQA Guidelines,] § 15385.) Tiering is proper ‘when it helps a public agency to focus upon the issues ripe for decision at each level of environmental review and in order to exclude duplicative analysis of environmental effects examined in previous environmental impact reports.’ [Citations.]

“In addressing the appropriate amount of detail required at different stages in the tiering process, the CEQA Guidelines state that ‘[w]here a lead agency is using the tiering process in connection with an EIR for a large-scale planning approval, such as a general plan or component thereof . . . , the development of detailed, site-specific information may not be feasible but can be deferred, in many instances, until such time as the lead agency prepares a future environmental document in connection with a project of a more limited geographic scale, as long as deferra