“new project requiring supplemental or subsequent EIR
In a decision filed June 6, but not certified for publication until July 2, 2014, the Sixth District Court of Appeal affirmed the trial court’s judgment upholding the City of San Jose’s eighth addendum to its Airport Master Plan against plaintiff Citizens Against Airport Pollution’s (CAAP) CEQA challenge. Citizens Against Airport Pollution v. City of San Jose, et al., __ Cal.App.4th __, 2014 WL 2987959 (6th Dist. 2014).
The challenged project was the eighth update to the 1980 Airport Master Plan for the San Jose International Airport approved pursuant to an EIR addendum since 1997; a final EIR (FEIR) for the first Airport Master Plan update was approved in 1997, followed by a supplemental EIR (SEIR) in 2003. The eighth addendum analyzed amendments that: (1) changed the size and location of future air cargo facilities; (2) replaced planned air cargo facilities with 44 acres of general aviation facilities; and (3) modified certain taxiways to accommodate a forecasted increase in large corporate jet use as a percentage of general aviation.
CAAP argued a supplemental or subsequent EIR was required, and that “the eighth addendum failed to adequately assess or analyze the impacts of the taxiway modifications and the construction of general aviation facilities on noise, air pollution, and the burrowing owl habitat” and also “failed to comply with newly adopted rules mandating review of project impacts on greenhouse gases and climate change.”
While implicitly acknowledging that “exhaustion of administrative remedies is a jurisdictional prerequisite to a CEQA action” the Court of Appeal nonetheless found no need to reach the City’s failure-to-exhaust argument, treated CAAP’s appeal from the order denying its writ petition as an appealable final judgment (citing Concerned Citizens of South Central Los Angeles v. Los Angeles Unified School District (1994) 24 Cal.App.4th 826, 831-832), and affirmed that judgment, denying CAAP’s writ petition on the merits in all respects.
While breaking no novel CEQA ground, the decision provides a refresher on the rules governing appropriate use of an addendum. Takeaways from the published opinion in this regard include:
- An addendum is proper where some changes or additions to a previously-certified EIR are necessary, but none of the conditions described in Public Resources Code § 21166 or Guidelines § 15162 calling for preparation of a subsequent EIR have occurred.
- An addendum need not be circulated for public review; rather, it can be included in or attached to a Final EIR or adopted negative declaration (ND) and must be considered by the decisionmaking body along with the prior EIR or ND before deciding on the project.
- A brief explanation of the agency’s decision not to prepare a subsequent EIR should be included either in the addendum itself, the lead agency’s required project findings, or elsewhere in the record, and must be supported by substantial evidence. (Citing 14 Cal. Code Regs., §§ 15164 (d), (e); Mani Brothers Real Estate Group v. City of Los Angeles(2007) 153 Cal.App.4th 1385, 1398.)
- The agency’s decision not to require an SEIR must be upheld if substantial record evidence supports the determination that changes in the project or its circumstances were not so substantial as to require major revisions in the EIR. This deferential standard reflects that in-depth CEQA review has already occurred, the time for challenging that review has long expired, and the question at hand is whether “whether circumstances have changed enough to justify repeating a substantial portion of the process.” (Citing Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 54-55.)
- The burden is on the challenger to show that no substantial evidence supports the agency’s findings; after the project has been subjected to an environmental review, “the statutory presumption flips in favor of the developer and against further review.” (CitingCitizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515, 532.)
In applying these settled rules, and holding the eighth amendment was not a “new project,” the Court of Appeal distinguished decisions cited by appellant CAAP — Center for Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.App.4th 1156 and Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 — as involving the propriety of NDs (not addendums) where the issue was whether the project at issue came “within the scope” of a prior program EIR. Nevertheless, like another recent decision from the First District (see “Whatever the EIR’s, Name, CEQA’s Rules For Substantive Content and Subsequent Review Remain the Same: First District Upholds EIR For Treasure Island Redevelopment Project,” by Arthur F. Coon, posted July 14, 2014), it essentially found the EIR’s label (i.e., “program” vs. “project”) not to be dispositive.
Rather, the Court held that Public Resources Code § 21166’s standards setting forth the “limited circumstances” for further environmental review apply also to program EIRs (citing May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1316-1317, 1325-1326), and that substantial evidence in the administrative record showed “the amendments to the Airport Master Plan that are addressed in the eighth addendum will not result in any new significant impacts on noise, air quality, and the burrowing owl habitat that are substantially different from those described in the 1997 EIR and the 2003 SEIR.” (Citing Santa Teresa Citizen Action Group v. City of San Jose(2003) 114 Cal.App.4th 689, 704; 14 Cal. Code Regs., §§ 15162(a)(1), (2).) The Court stated: “Therefore, even assuming, without deciding, that the 1997 EIR for the Airport Master Plan constitutes a program EIR, as CAAP argues, we are not persuaded that the proposed changes to the Airport Master Plan that are addressed in the eighth addendum constitute a new project that requires a new EIR.”
The Court went on to reject CAAP’s challenges to the addendum’s noise analysis, “emphasiz[ing] that the standard of review that applies to a CEQA attack on an agency’s use of an addendum to an EIR is deferential” and that courts “resolve reasonable doubts in favor of the administrative decision” in applying the substantial evidence standard of review: “We find that there is substantial evidence [in the form of expert noise analysis] to support the eighth addendum’s conclusion that the proposed changes to the Airport Master Plan would not result in any new significant noise impacts and/or noise impacts that are substantially different from those described in the 1997 EIR and the 2003 SEIR.”
The Court further held that GHG analysis was not required when the 1997 EIR or 2003 SEIR were prepared, and that an SEIR is likewise not required for the purpose of such analysis at the present time despite the adoption in 2010 of CEQA Guidelines amendments (see 14 Cal. Code Regs., § 15064.4(a)) requiring such analysis. That is because “the potential environmental impact of greenhouse gas emissions has been known since the 1970’s” and therefore “information about the potential environmental impact of [GHG] emissions was known or could have been known at the time the 1997 EIR and the 2003 SEIR … were certified.” The Court thus held: “Since the potential impact of greenhouse gas emissions does not constitute new information within the meaning of section 21166, subdivision (c), City did not violate section 15064.4 of the Guidelines by failing to analyze [GHG] emissions in the eighth addendum.”
Finally, the Court similarly applied CEQA’s standards for subsequent review and the deferential substantial evidence test to reject CAAP’s arguments that the plan modifications would have significant unanalyzed impacts on air quality and burrowing owls.
It is not always easy to determine why some appellate CEQA decisions are published and others are not. The belatedly published opinion in Citizens Against Airport Pollution seemingly applied much settled CEQA law to affirm on the merits. In doing so, it ironically avoided deciding issues regarding the “jurisdictional prerequisite” of exhaustion of administrative remedies that would probably have been more novel and interesting, given the case’s facts. In any event, CEQA’s standards for subsequent environmental review currently seem to be a much-litigated area of the law, and perhaps the Court felt it was important to publish a case applying these settled standards in the context of an EIR addendum.