California Supreme Court Clarifies CEQA’s Subsequent Review Rules and Standard of Review
Decision Issued After Years of Uncertainty
The substantial evidence standard of review governs a lead agency’s determination as to whether a previously approved project, as modified, requires additional environmental review under the California Environmental Quality Act, the California Supreme Court has held. The decision, issued Monday in Friends of the College of San Mateo Gardens v. San Mateo County Community College, resolves a long-standing division among the appellate courts concerning the degree of deference to be shown an agency’s determination as to whether additional environmental review is required when changes are proposed to a previously approved project.
At issue here is the San Mateo County Community College District’s 2011 revised addendum to a 2007 Mitigated Negative Declaration for a campus-wide facilities improvement plan on its College of San Mateo campus. The revisions included the demolition of a building initially intended to be renovated and the removal of a portion of that building’s gardens. The District concluded that the proposed revisions did not require preparation of a subsequent environmental impact report under Public Resources Code section 21166 and CEQA Guidelines section 15162, and approved the revisions pursuant to an addendum to the MND. Friends of the College of San Mateo Gardens filed a petition in court demanding that an EIR be prepared for the demolition because, it argued, the demolition was a “new project,” rather than a revision to the previously approved campus plan.
The Supreme Court first addressed the Court of Appeal’s “error in treating the new project inquiry as a question for the court’s independent determination under a de novo standard.” The Court held that it is improper to consider whether an agency’s proposed changes render a project “new” in an abstract sense and that such a “new project” test would invite arbitrary results. The Court further held that whether an initial environmental document remains relevant despite changed plans or circumstances is a predominantly factual question for agencies to answer by drawing on their particular expertise. A court’s responsibility on review, the Court added, is only to decide whether the agency’s determination is supported by substantial evidence.
The Court also addressed Friends’ argument that CEQA’s subsequent review provision, section 21166, applies only to projects for which an initial EIR was prepared. Friends contended that section 15162 is invalid in that it extends the section 21166 subsequent review framework to projects that were initially approved via negative declaration, like the campus improvement project at issue in this case. The Court disagreed on multiple grounds, ultimately holding that limiting agencies’ post-approval review obligations for projects that were initially approved via negative declaration is wholly consistent with a statutory scheme in which negative declarations, no less than EIRs, are entitled to a presumption of finality once adopted.
Next, the Court rejected Friends’ argument that the application of the substantial evidence standard to projects initially approved via negative declaration creates a loophole. Friends argued that so long as the potential environmental effects of a project are caused by changes in the project after a negative declaration had been approved, agencies could “evade” the preparation of an EIR based on the more demanding “fair argument” standard. According to the Court, however, a loophole would not be created. This is because section 15162 requires an agency to prepare an EIR whenever there is substantial evidence that the changes to a project for which a negative declaration was previously approved might have a significant environmental impact not previously considered in connection with the project as originally approved.
Under this holding, the Court clarifies that public agencies’ determinations as to whether proposed modifications to a previously approved project will result in new, previously unconsidered significant environmental effects are entitled to great deference. This decision thus assists both public agencies and private applicants, insofar as any need for subsequent CEQA review is one to be made based on the specific facts involved, and not an abstract legal standard.
If you have any questions about this opinion or how it may impact your agency, please contact the attorney authors of this Legal Alert listed to the right in the firm’s Environmental Law & Natural Resources practice group, or your BB&K attorney.
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