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Appellate Court Clarifies Parameters of Describing a “Project” Under CEQA

The California Environmental Quality Act (“CEQA”) requires that an Environmental Impact Report (“EIR”), or other environmental review document, must describe and analyze the impacts of a project – and the project itself must be consistently described, throughout the process of local agency consideration, in terms that are “accurate,” “stable” and “finite.” Local agencies and developers regularly face the question of how to formulate the description of a proposed project in a CEQA document that meets this standard. On July 31 in Stopthemillenniumhollywood.com v. City of Los Angeles (“Millennium”), the Second Appellate District added to the growing body of recent case law that answers this question. Millennium follows and expands upon the guidance provided in Washoe Meadows Community v. Department of Parks & Recreation (2017) 17 Cal.App.5th 277 (“Washoe Meadows”) and South of Market Community Action Network v. City and County of San Francisco (2019) 33 Cal.App.5th 321 (“South of Market”). Together, these three cases assist local agencies and developers in understanding what is and is not adequate or permissible for a project description under CEQA.

Millennium – Analyzing a set of environmental impacts vs. impacts for a defined project
Millennium involved a large construction project on Vine Street in the City of Los Angeles (“City”). As noted by the Court, the Millennium project described and analyzed impacts of an “illustrative scenario” for a “potential development program” that would implement certain land use and development standards, but which provided the developers with “flexibility regarding the final arrangement and density of specific land uses, siting, and massing characteristics” of the project. The Millennium Court found that the project description was “not simply inconsistent” but also that it failed “to describe the siting, size, mass, or appearance of any building proposed to be built at the project site.” The Court held that this did “not meet the requirement of a stable or finite proposed project.” The City and project proponents argued that the EIR was adequate under CEQA because it examined maximum environmental impacts of any of the potential development scenarios. However, the Court rejected this argument, concluding that “[a]nalyzing a ‘set of environmental impact limits,’ instead of analyzing the environmental impacts for a defined project, was not consistent with CEQA.”

Washoe Meadows – Describing range of possible projects vs. preferred or actual project
Millennium relied, in part, on Washoe Meadows, which addressed an EIR that did not meet CEQA’s requirements for a stable and finite project description. The EIR in Washoe Meadows identified five “very different” alternatives as potential projects, did not identify a preferred or proposed project, and left the selection of the preferred alternative until after receiving public input. As in Millennium, the local agency in Washoe Meadows argued that it had complied with CEQA because it thoroughly analyzed the environmental impacts of the alternative the agency ultimately selected as the project. The Court held, however, that the CEQA flaw was not with the “informative quality of the EIR’s environmental forecasts,” but rather that a “description of a broad range of possible projects, rather than a preferred or actual project, presents the public with a moving target and requires a commenter to offer input on a wide range of alternatives that may not be in any way germane to the project ultimately approved.” The Washoe Meadows Court did allow that “there may be situations in which the presentation of a small number of closely related alternatives would not present an undue burden on members of the public wishing to participate in the CEQA process,” but that in the case under review the differences between the five alternatives were “vast” with each option creating a different set of impacts and requiring different mitigation measures, resulting in an impermissible project description.

South of Market – Describing and evaluating substantially similar project options
Finally, Millennium distinguished South of Market, which involved a mixed-use development project. The South of Market EIR examined two “schemes” for the project, consisting of different allocations of uses (the “Residential Scheme” and the “Office Scheme”) within the proposed project buildings. The two options involved substantially the same overall square footage , though the Office Scheme had a larger building envelope and higher density than the Residential Scheme. The Court rejected petitioners’ challenge that the EIR failed to provide an accurate, stable project description because of the use of the two options. In reaching this decision, the South of Market Court noted favorably that the two options were substantially similar, that the EIR fully evaluated the impacts of each option independently, and that information presented in the EIR was not confusing.

Project description check list
Taken together, these three cases provide agencies and developers with bookends on the degree of flexibility that may be built into a project description under CEQA. Under South of Market, some degree of flexibility is permissible, and the EIR may go so far as to include project “options,” so long as the options are independently evaluated, represent true variations on a single project rather than vastly different projects, and do not confuse the reviewing public. Conversely, under Millennium and Washoe Meadows, excessive vagueness or uncertainty in the description of the proposed project may be a violation of CEQA and courts are unlikely to find that examination of “maximum environmental impacts” of any proposal corrects this flaw. As such, agencies and developers should avoid indefinite project descriptions, though carefully crafted options for project implementation may be acceptable.