In orders issued May 11, 2016, one week after the May 4 oral argument and submission of the cause for decision, the California Supreme Court vacated the submission and ordered supplemental briefing in Friends of the Collage at San Mateo Gardens v. San Mateo County Community College District, Case No. S214061.

The Court’s lengthy online docket entry stated:

Submission is vacated in order to allow for supplemental briefing. The court requests that the California Natural Resources Agency with the Governor’s Office of Planning and Research (collectively, “Natural Resources Agency”) serve and file supplemental briefing. The Court also directs the parties to serve and file supplemental briefing. All supplemental briefs shall address the following questions: (1) Under California Environmental Quality Act (CEQA) Guidelines section 15162, what standard of judicial review applies to an agency’s determination that no environmental impact report (EIR) is required as a result of proposed modifications to a project that was initially approved by negative declaration or mitigated negative declaration? (See generally Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1479-1482.) (2) Does CEQA Guidelines section 15162, as applied to projects initially approved by negative declaration or mitigated negative declaration rather than EIR, constitute a valid interpretation of the governing statute? (Compare Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073-1074 with Benton at pp. 1479-1480.) All supplemental briefs addressing these questions shall be served and filed on or before June 15, 2016. The parties may serve and file simultaneous reply briefs on or before June 22, 2016. No extension of time for filing of these briefs is contemplated. Subject to further order of this court, the matter will be submitted on the date that the last supplemental brief is or could be timely filed under this order or any subsequent order of this court. (See generally Cal. Rules of Court, rule 8.524(h).)

This action by the Court, which will further delay its decision in this important case, is interesting to me for two primary reasons: (1) the Natural Resources Agency’s CEQA Guidelines themselves already appear to answer the Court’s first question, as they expressly provide that the fair argument test does not govern the inquiry under section 15162. (See 14 Cal. Code Regs., § 15064(f)(7) [“The fair argument standard does not apply to determinations of significance pursuant to sections 15162, 15163, and 15164”]); and (2) the Court’s second question indicates it is delving into an issue that, while discussed at oral argument, as Justice Kruger observed goes well beyond the issue on which review was granted in order to resolve a conflict in the case law, i.e., are an agency’s subsequent review decisions simply reviewed for substantial evidence, or does there exist a threshold “modified vs. new project altogether” legal inquiry that courts apply in this context?

If the Court were to reach the issue and hold that Guidelines § 15162 is “clearly unauthorized and erroneous” as applied to subsequent review determinations where the initial CEQA document was a negative declaration, it would have to overturn and upset decades of well-reasoned and settled case law and lead agency reliance, ignore the statutory presumption of conclusiveness and finality accorded to negative declarations (e.g., Pub. Resources Code, § 21080.1), and essentially relegate negative declarations to a “second class citizen” status that is not of “equal dignity” to EIRs under CEQA. If the Court’s driving concern in considering such drastic action is with lead agencies potentially “gaming the system,” exploiting “loopholes,” or doing an “end run” around CEQA review (as questions of Justices Liu and Cuellar at oral argument indicated might be the case), it must also take into account, inter alia, both the venerable evidentiary presumption that official duty has been regularly performed (Evid. Code, § 664) and the fact that the substantial evidence standard itself is far from “toothless.” (See, e.g., Center for Biological Diversity v. California Dept. of Fish and Wildlife (2015) 62 Cal.4th 204 [setting aside EIR’s GHG analysis as lacking supporting substantial evidence].)

In addition to those legal considerations, the practical and public policy ramifications of a negative answer to the Court’s second question are staggering, and point in a direction that is precisely the opposite of judicial CEQA “reform.” To gird against the ever present CEQA litigation threat, such a decision would inevitably result in needless paper generation and a tremendous waste of scarce public agency resources to perform repetitive and unnecessary CEQA review when approved projects are later modified to adapt to changing circumstances or needs.

Attempting to determine which way a court is leaning by its oral argument questions and supplemental briefing requests can be akin to “reading tea leaves,” but one thing is clear: the Court’s actions here continue to make this a case for all CEQA practitioners and stakeholders to watch closely. (For more context, my recent prior posts on the case and the oral argument can be found here and here, respectively.)