by Thomas K. Pendergast

The SF city attorney’s office has filed its response to arguments made in a lawsuit questioning the reliability of an Environmental Impact Report (EIR) prepared for the Geary Bus Rapid Transit (GBRT) planned for Geary Boulevard. The lawsuit was brought by a non-profit organization called San Franciscans for Sensible Transit, (SFST) which is composed primarily of Richmond District merchants and residents.

The GBRT would strip Geary Boulevard of its traffic islands and trees and replace them with long stretches of bus-only lanes, painted red, along much of the major transit artery for the Richmond. An average of 52,000 passengers use the #38-Geary bus line daily.

Petitioners in the suit argue that the final environmental review of the GBRT contains “fatal substantive flaws,” including not adequately analyzing an option to not build the GBRT, and that the report relies on “outdated data” and “unsubstantiated models.”

The lawsuit seeks to set aside the SF County Transportation Authority (SFCTA) board’s approval, as well as the certification for the final EIR, to issue an injunction to keep the SFCTA from taking further action until there is another public hearing, and to evaluate the “no-build” option, which Sensible Transit claims project planners ignored.

The no-build option would take much less drastic measures to improve service and safety on the #38-Geary line, including already-planned additional traffic signals, fixing up degraded pavement between 27th and 33rd avenues, adding 14 pedestrian crossing bulb-outs throughout the corridor, and deferring to the Muni Forward plan for further improvements.

The suit also asks the City to revisit the EIR, which the plaintiff’s claim was “fundamentally flawed.”

In its opening brief, SFST claims the SFCTA failed to consider the rise of “transportation network” companies, like Uber and Lyft, into their calculations by stating instead that “traffic modeling accounts for taxis and carpooling, which are reasonable proxies for other shared ride services.”

The city attorney’s office responded with its counter brief in June. It argues that while opponents to the GBRT are claiming the EIR was inadequate, they are “in reality challenging the merits of the project.”

The legal brief says: “Contrary to petitioner’s allegations, the Geary BRT EIR accounted for transportation network company vehicles, thoroughly and transparently analyzed future traffic conditions; assessed impacts on pedestrians and trees, and from red painted bus-only lanes; and presented a reasonable range of alternatives, including a no-build alternative that incorporated key transportation improvements. Then, after having discussed the project for at least eight years, the Transportation Authority Board certified the EIR and adopted the project in compliance with CEQA.”

The city attorney’s brief noted that planning for the GBRT began after Proposition K, which voters approved in 2003 to adopt a half-cent sales tax for transportation projects and an expenditure plan that included Geary Bus Rapid Transit.

In 2007, the SFCTA, which is composed of the members of the SF Board of Supervisors, adopted the Geary Corridor BRT Feasibility Study, which evaluated the feasibility of five conceptual design alternatives for Geary Boulevard. Responsibility for oversight of the project’s implementation is the SF Municipal Transit Agency.

The Draft Environmental Impact Report evaluated the no-build alternative, along with four “build” alternatives, according to the city attorney. The city’s response to the lawsuit then doubles back to the legal question the opposition raises: whether or not there was a proper EIR for the project.

“When an EIR is challenged as legally inadequate under CEQA, a court presumes the public agency’s decision to certify the EIR is correct. The party challenging the EIR bears the burden of establishing otherwise,” the city claims. “Review is limited to the question of whether the public agency has abused its discretion by not proceeding as required by law, or by making a determination not supported by substantial evidence. The court ‘adjusts its scrutiny to the nature of the alleged defect, depending on whether the claim is predominantly one of improper procedure or a dispute over the facts.’

“If the dispute concerns facts or conclusions, the court must uphold the agency’s findings if supported by substantial evidence ….

“‘Substantial evidence’ means enough relevant information and reasonable inferences from the information that a fair argument can be made to support an agency’s conclusion, even though other conclusions may also be reached. In examining an EIR, ‘the court looks not for perfection but for adequacy, completeness and a good faith effort at full disclosure…. The court’s role is not to decide whether the agency acted wisely or unwisely, but simply to determine whether the EIR contained sufficient information about a proposed project to allow for an informed decision.”

Sensible Transit also challenges the EIR by claiming the SFCTA manipulated data to avoid certain outcomes.

“The methodology used to assess traffic impacts was carefully and transparently – set forth in the Draft EIR,” the city attorney’s brief states. “The emails that the petitioner relies upon to support its position does not, in fact, support any of petitioner’s assertions and illustrates how the Transportation Authority’s transportation experts conducted careful, thorough and conservative analysis of traffic impacts.”

The first hearing date for the lawsuit in Superior Court is set for Aug. 9.