No Subsequent CEQA Review Required By Agency Which Lacks Authority To Mitigate Environmental Impacts
In San Diego Navy Broadway Complex Coalition v. City of San Diego, California Court of Appeal has ruled that the California Environmental Quality Act (CEQA) does not require a subsequent or supplemental Environmental Impact Report (EIR) for allegedly significant impacts which the reviewing public agency does not have authority to reduce or avoid by imposing mitigation measures.
The case concerns a waterfront development project, for which a development agreement was approved by the City on the basis of an EIR in 1992. The development agreement provided for a post-approval determination by the Centre City Development Corporation (CCDC), a public non-profit corporation, as to the consistency of project plans with certain aesthetic criteria and the City’s urban design guidelines. After the project developer submitted plans in 2006 and 2007, the City determined that no further CEQA review was required in connection with CCDC review. A citizens group filed suit, alleging that the City needed to prepare a subsequent or supplemental EIR to evaluate potentially significant impacts that were not studied in the 1992 EIR, including global climate change impacts.
The Court rejected the petitioners’ claim. The court observed that CEQA requires environmental review only in connection with “discretionary” government approvals, meaning approvals that require the exercise of judgment or deliberation. The court cited case law, including the Friends of Westwood, Mountain Lion Foundation, and Leach v. City of San Diego cases, which establishes that CEQA review is limited to discretionary agency decisions because “unless a public agency can shape the project in a way that would respond to concerns raised in an EIR . . . environmental review would be a meaningless exercise.”
The court further observed that, once a project has been approved under CEQA, no subsequent or supplemental EIR may be prepared except when an agency determines, in connection with a subsequent discretionary approval, that the project may result in new or substantially more severe significant impacts not addressed in the initial approval.
Here the court held that, although the CCDC may have had discretionary authority to alter the aesthetic aspects of the project, it did not have authority to impose any non-aesthetic mitigation measures which might be needed to reduce or avoid allegedly significant climate change impacts. On that basis, the court concluded that CEQA did not require a supplemental or subsequent EIR in connection with CCDC review. The court summarized: “Where an agency has no authority to modify a project based on the analysis contained in the EIR, there is no basis for requiring the agency to prepare the EIR. This principle has been repeatedly stressed in cases in which the courts have considered the limitation of CEQA to discretionary projects in the preparation of an initial EIR, . . . and we see no reason why the same principle should not apply with equal force in the context of considering whether an agency is required to prepare a subsequent or supplemental EIR.”