Why it matters: This decision highlights the court’s very deferential standard of review that is given to the use of an addendum to a previously certified EIR. The decision also confirms the ability of a lead agency to change or delete previously adopted mitigation measures in an addendum if legitimate reasons for making the changes are stated and the reason is supported by substantial evidence.

Facts: In 1997, the City prepared and approved an updated Airport Master Plan for the San Jose International Airport. It also prepared and certified a Final EIR for the Airport Master Plan. From 1997 through 2010, the City approved amendments to the Airport Master Plan and in connection with those amendments prepared a supplemental EIR in 2003, and eight EIR addenda. As a result of the slowdown in the level of passenger activity and the reduction in air cargo volume and general aviation, the City proposed modifications to the Airport Master Plan, including changing the size and location of future air cargo facilities, conversion of planned air cargo facilities with 44 acres of general aviation facilities and the modification of two taxiways.

The City concluded that the proposed modifications will not have any significant environmental impacts not previously disclosed in the Airport Master Plan EIR, or substantially increase the severity of previously identified significant impacts. Because the City concluded that a subsequent or supplement EIR was not warranted or required, it prepared the eighth addendum to the previously certified EIR in 2010.

The petitioners challenged the use of an addendum asserting that the modifications to the Airport Master Plan constituted a new project and that the modifications constituted substantial project changes and/or changed circumstances requiring new studies.

Decision: The court applied a highly deferential substantial evidence standard of review that is used when an agency has already prepared an EIR. Citing Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 Cal.App.4th 689, the court stated that reasonable doubts are resolved in favor of the administrative decision. It is not the role of the reviewing court to judge the wisdom of the agency’s action or pass judgment upon the correctness of the EIR’s conclusions. “Our function is simply to determine whether the agency followed proper procedures and whether there is substantial evidence supporting the agency’s determination that the changes in the Project (or its circumstances) were not substantial enough to require an SEIR.” (Citing Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1076.)

New Project: The petitioners argued that the modifications constituted a new project because the proposed changes were not within the scope of the 1997 Airport Master Plan or its program EIR. The City’s position was that the amendments were merely an adjustment to an existing plan that had received environmental review in a project-level document, not a program EIR. The court side stepped whether the 1997 EIR was a program or project-level EIR, holding that the amendments did not constitute a new project and would not result in any new significant impacts and therefore reliance on an addendum was appropriate.

Noise Impacts: The addendum cited data showing that the number of average daily aircraft operations would be 20 percent less in 2027 than had been projected to occur in 2010 and 2017, and that over time older aircraft would be phased out and would be replaced with new and quieter aircraft. The addendum used the same methodology and thresholds as used in the 1997 EIR and 2003 SEIR and concluded that the noise levels at all of the reference point locations would be lower in 2027 than was projected for 2017. The court found that the record contained substantial evidence to support the addendum’s conclusion that the proposed modifications to the Airport Master Plan would not result in any new significant noise impacts or impacts that were substantially different from those described and analyzed in the prior EIRs.

Greenhouse Gas Emissions: Citing CREED v. City of San Diego (2011) 196 Cal.App.4th 515, the court found that information about the potential environmental impacts of GHG emissions was known or could have been known at the time the 1997 EIR and 2003 SEIR were prepared and certified. The addition of Section 15064.4 to the CEQA Guidelines in 2010 requiring the analysis of GHG emissions in environmental documents was not new information that would require preparation of an EIR.

Air Quality: The City’s addendum concluded that since none of the proposed Airport Master Plan changes would increase the activity levels at the airport beyond that identified in the Airport Master Plan, or increase the capacity of the airport beyond what was described in the Airport Master Plan, that the amendments would not result in any significant or substantially different air quality impacts since the 1997 EIR disclosed air pollution for higher levels of activity at the airport than that anticipated for 2027 under the amended Airport Master Plan. The court held that the record contained substantial evidence supporting the City’s conclusions.

Burrowing Owl Impacts: The 1997 EIR disclosed the loss of 38 acres of burrowing owl habitat as a significant impact and included measures to mitigate this impact through a Burrowing Owl Management Plan. The taxiway extensions that were approved under the Airport Master Plan amendments would result in impacts to four (4) acres of burrowing owl habitat that were originally part of an 84-acre area designated for habitat protection under the 1997 EIR. To offset the loss of 4 acres of habitat, the addendum included a number of mitigation measures, including 1:1 replacement of owl habitat, preconstruction surveys, and relocation of the burrows impacted by the new taxiways. The addendum stated, among other things, that the mitigation is part of the Burrowing Owl Management Plan. Applying the deferential standard of review, the court held that the impact on the burrowing owl population was not substantially different from or greater than the impact considered in the 1997 EIR, that there was substantial evidence in the record to support the City’s reasons for changing the mitigation measures for the impact on the burrowing owl population, and that it could be reasonably assumed that the mitigation measures incorporated in the addendum will maintain the impacts to burrowing owls to a less than significant level.

Practice Pointers:  

  • Whenever a previously certified EIR has been prepared for a project, consider whether an addendum can be used for a subsequent discretionary approval for that project.
  • Always support the use of an addendum with substantial evidence in the record through preparation of an analysis demonstrating how the impacts of the subsequent project are not significantly different or substantially worse than the impacts considered in the previously certified document.
  • If previously adopted mitigation measures are changed or deleted through an addendum, clearly identify the legitimate reasons for the change and provide substantial evidence in support of the change.
  • The importance of the CREED case in being able to use and rely on previously certified documents that do not address GHG impacts cannot be overlooked.