07.14.2011

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Updates

Citizens for Responsible Equitable Environmental Development v. City of San Diego (D057524, Filed 5/19/11)

The City of San Diego certified an Environmental Impact Report and approved a large project in 1994.  In 2009, it considered another discretionary approval for the final phase of that project.  The California Environmental Quality Act (CEQA) permits an agency to require a supplemental Environmental Impact Report in this circumstance when the agency determines, based on substantial evidence that could not have been known at the time the prior EIR was certified, that the project will have new or more severe significant impacts than were previously identified.  The City prepared an addendum to its prior EIR to present the evidence supporting its conclusion that no supplemental EIR was required.

The Water Code requires that a city request preparation of a Water Supply Assessment only at the time it “determines whether an environmental impact report, a negative declaration, or a mitigated negative declaration is required for any project.”  Here, the City determined that no such environmental document was required, but City staff nonetheless prepared a Water Supply Assessment for the 2009 project and included the assessment in the addendum.  Further, even though CEQA requires only that an agency consider information in an addendum when one has been prepared, the City here invited comments on its draft addendum, and the City Council held a hearing and “certified” the addendum before approving the 2009 project. 

Project opponents sued, noting that the Water Code requires that a Water Supply Assessment be approved by the legislative body of the water supplier at a public hearing before being included in an environmental document.  The California Court of Appeal ruled that, under these facts, the City Council’s approval of the addendum was sufficient to operate as an approval of the Water Supply Assessment.  It explained that there would be no point in requiring that the City Council hold two different hearings to approve a Water Supply Assessment and then a CEQA document. 

The court also ruled that the petitioner had failed to present adequately its claims that a supplemental EIR was required on water supply issues.  The petitioner had submitted voluminous reports on a DVD that accompanied its letter commenting on the addendum.  The letter stated, “see also water supply folder (evidence regarding decreasing water supply),” but the court held this statement insufficient to raise claims that drought conditions had not been addressed in the CEQA analysis.  The City had no duty, the court ruled, to “pore through thousands of documents [on the disk] to find something that arguably supports [the petitioner's] belief project should not go forward.”  Further, a councilmember’s comments – to the effect that the addendum did not expressly address drought or the prospect of water rationing – were insufficient to exhaust remedies because the councilmember never claimed that a supplemental EIR was required on that ground. 

The petitioner also claimed that a supplemental EIR was required to address greenhouse gas emissions, which had not been studied in the 1994 EIR.  Petitioner commented that the “project will cause direct and indirect greenhouse gas emissions that, when considered cumulatively, are significant.”  These statements, the court ruled, were general and not specific to the project, and therefore did not exhaust remedies.  The court also ruled that information about climate change and greenhouse gas emissions dated back to the 1970s and was not new information.  “The effect of greenhouse gas emissions on climate could have been raised in 1994 when the City considered the [EIR].”   Accordingly, the court upheld the City’s decision not to prepare a supplemental EIR. 

© 2011 Perkins Coie LLP