On May 19, 2011, the California Court of Appeal for the Fourth Appellate District upheld an Addendum to an Environmental Impact Report ("EIR Addendum") over claims that the lead agency failed to follow statutory procedures for adopting a Water Supply Assessment ("WSA") and that a supplemental EIR ("SEIR") was required to analyze "new" environmental impacts related to drought and global warming.
Citizens for Responsible Equitable Environmental Development
v. City of San Diego involved an Addendum to an EIR initially
prepared for a 664-acre master planned community in the City of San
Diego in 1994. The EIR Addendum addressed environmental impacts
from the last phase of the master planned community -- a 1,500-unit
multi-family project ("Project").
WSA Approval Procedure
Before the lead agency approved the Project, the City's
water department prepared a WSA, which was then approved by the
City Council at the Project's public hearing through a
resolution certifying the EIR Addendum. The resolution did not
specifically reference the WSA. The Citizens for Responsible
Equitable Environmental Development ("CREED") argued the
California Water Code1 required the City Council, acting
as the water department's legislative body, to approve the WSA
in advance at a separate hearing because the Legislature deemed the
coordination of water supply planning and land use planning too
important to adopt as just an ordinary technical report supporting
the EIR Addendum's water supply analysis.
The Court of Appeal disagreed. Unlike many other jurisdictions that
have a separate water agency governing board, the City's water
department is governed by the same entity (the City Council) as the
lead agency; thus no separate hearing or resolution was required.
The court held that requiring the same legislative body to hold two
different hearings on the matter, or approve a WSA and CEQA
document in different motions, would not enhance public review or
local agency decision-making. Instead, it affirmed that the
"purpose of CEQA is to inform government decision-makers and
their constituency of the consequences of a given project, not to
derail it in a sea of administrative hearings and paperwork."
(Long Beach Sav. & Loan Assn. v. Long Beach Redevelopment
Agency (1986) 188 Cal. App. 3d 249, 263.)
Drought Not New Information
The City Council adopted the project despite then Governor
Schwarzenegger's drought declaration and a notice from the
Department of Water Resources that it would be reducing water
deliveries to the City due to the statewide drought and a separate
court order to reduce water pumping from the Bay/Delta area to
protect endangered Delta Smelt. CREED argued that the drought
declaration and notice of reduced water deliveries occurred after
the WSA was completed and therefore was the type of "new"
information that required the City to process a SEIR, instead of an
EIR Addendum.
The court dismissed CREED's claim finding that CREED failed to
satisfy its burden of proof to address all the information
regarding available water supply, including the WSA's
references to water supply during multiple dry years. The court
affirmed that it was proper for the City to rely on testimony from
the City's planning staff during the public hearings that the
drought was only temporary and the City had adequate water supply
to serve the project in the long term.
Global Warming Not New Information
CREED argued that the 1994 EIR contained no references to global
warming and that the passage of state global warming laws, such as
AB 32 and SB 97, revealed new information about the scientific link
between global warming and human development activities. The court
dismissed this claim because lead agencies may not require
preparation of a SEIR unless "[n]ew information, which was not
known and could not have been known at the time of [EIR] was
certified as complete, becomes available." (Cal. Pub. Res.
Code § 21167(c).) The court found that by the time the EIR was
certified in 1994, there was enough information available from
various executive orders, international scientific panels, and the
National Academy of Sciences demonstrating the link between global
warming and human activities that an impact analysis could have
been included in the 1994 EIR. Because the statute of limitations
on the 1994 EIR had long since passed, CREED was time-barred from
raising those issues in a legal challenge against the 2009 EIR
Addendum, where public policy favors finality. The evidence that
there was sufficient information about global warming in 1994 came
from the City of Los Angeles' 1990 lawsuit against the National
Highway Safety Administration2 and the U.S. Supreme
Court opinion in Massachusetts v. EPA (2007) 549 U.S. 497,
where the high court summarized the history of official government
actions related to global warming from the 1970s to 2007.
Failure to Exhaust Administrative Remedies
During the six years the City reviewed the Project, CREED did
not submit a comment opposing the Project when the Notice of
Preparation was issued, the Draft EIR Addendum was circulated,
community outreach hearings were held, the Planning
Commission's hearing was held or participate in the City
Council hearings for the Project. Instead, hours before the City
Council was scheduled to review the Project in a January 20, 2009
public hearing, CREED attempted to preserve its right to sue the
Project approval in court by filing with the City Clerk's
office a two page letter with general allegations that the Project
violated CEQA and referring to an attached DVD with 5,000 pages of
general information about water supply, drought, global warming,
and copies of previous EIRs around the state discussing water
supply and global warming issues. The City Council postponed the
hearing until February 17, 2009 for other reasons and only later
discovered CREED had submitted the letter. During the month between
the two letters, the Project's air quality consultant provided
a letter analyzing the Project's greenhouse gas impacts.
Then, on the morning of the February 17, 2009 hearing, CREED filed
a second two-page letter with an attached DVD with several thousand
more general documents about global warming and droughts. CREED did
not participate in the City Council's hearing to elaborate on
its comments. When the City refused to include the second DVD in
the administrative record, the trial court judge denied CREED's
Motion to Augment the Record, finding that under the totality of
the circumstances, CREED failed to fairly present its arguments to
the City Council in a manner that the City could reasonably be
expected to respond. CREED did not appeal the motion.
The CEQA statute prohibits judicial review "unless, the
alleged grounds for noncompliance with [CEQA] were presented to the
public agency orally or in writing by any person during the public
comment period provided by this division or prior to the close of
the public hearing..." (Cal. Pub. Res. Code § 21177(a).)
Nevertheless, the Court of Appeals took the next step and found
that CREED's January 20, 2009 letter with 5,000 pages of
exhibits was insufficient to exhaust the administrative remedies
available to CREED even though it was submitted a month in advance
of the City Council's final hearing on the Project.
The court noted that "To advance the exhaustion doctrine's
purpose '[t]he "exact issue" must have been presented
to the administrative agency....' [Citation omitted] and
"[T]he objections must be sufficiently specific so that the
agency has the opportunity to evaluate and respond to them."
(Sierra Club v. City of Orange (2008) 163 Cal.App.4th,
523, 535-536.) The court held that CREED failed to satisfy the
exhaustion doctrine because its letters only contain general,
unelaborated objections. The letters did not contain the term
"drought" or object to the content of the WSA. The
letters made only general, unelaborated objections such as,
"global climate change has been raised as a significant
environmental issue that has been frequently analyzed in current
environmental documents" and the "project will cause
direct and indirect greenhouse-gas emissions that, when considered
cumulatively, are significant."
The court affirmed that "The City cannot be expected to pore
through thousands of documents to find something that arguably
supports CREED's belief the project should not go forward.
Additionally, CREED did not appear at either CEQA hearing to
elaborate its position. It appears from CREED's haphazard
approach that its sole intent was to preserve an appeal." The
court noted that if Petitioners were not required to give specific
objections so the agency has the opportunity to evaluate and
respond to them, every project approval would be subject to
litigation on new or expanded issues.
Significant Conclusions from the Case
The case is significant for a number of reasons.
First, for a developer or lead agency that wants to amend
entitlements to respond to market changes, but is concerned that
the state's new global warming laws will automatically require
an exhaustive SEIR, this case affirms that holders of post-1994
entitlements can likely amend their entitlements without an SEIR.
The expedited EIR Addendum procedure is available where development
project changes do not otherwise trigger new or more severe
unmitigated environmental impacts compared to those disclosed in
the original EIR, even where the original EIR contains no
information on the project's global warming impacts. With the
passage of state and local legislation (SB 1185, AB 333, and
possibly SB 208 later this year), the "life" of projects
with vesting tentative maps, tentative maps, and parcel maps has
been extended due to the economic downturn. There are likely more
older, unfinished development projects whose build-out can be
facilitated with an EIR Addendum.
Second, the opinion may improve the quality of the debate at public
hearings on development projects because it discourages
"stealth" legal attacks and encourages a clear discussion
of the merits of a project. Project opponents who wait to the last
day to submit a long list of CEQA based project objections risk
losing their right to appeal on those grounds if the information is
not presented in an organized manner that gives the lead agency a
fair opportunity to respond. Even project opponents who submit
documents a month in advance of a public hearing must be cautious
to present the information in an organized manner that identifies
the exact issue so the lead agency has a fair opportunity to
respond to the specific issues raised. Furthermore, the risk of
courts finding that a project opponent failed to exhaust remedies
is likely greater where the project opponent is represented by
legal counsel and fails to indentify the specific issues that are
the basis for its claims. CEQA attorneys will therefore now need to
identify carefully what specific evidence support their legal
claims against a project.
Third, it may improve the quality of the response from lead
agencies, resulting in better development projects. When specific
objections to a project are made, the lead agency can better decide
whether those objections have merit and either make necessary
changes in the project or determine if there is other substantial
evidence to rebut the claim. Where the objections do not have
merit, the lead agency is assured it can rely on expert opinion
from its planning staff during a public hearing.
Fourth, WSA findings that address the availability of water during
multiple dry years can be used to reject claims that drought
conditions trigger the need to prepare an SEIR.
Fifth, cities and counties that govern water supply departments
without a separate governing board can approve a project's WSA
without conducting duplicative hearings or special approvals for
the WSA. The WSA can be treated like any other technical report
supporting a CEQA document.
Finally, the case affirms that CEQA petitioners who repeat the
evidence in opposition to a project fail to satisfy their legal
burden of proof when they do not address all the evidence in the
record supporting the lead agency's decisions. The court is not
a forum to revisit debate over a project's public policy
merits, but instead is a forum to determine if the lead agency had
any substantial evidence to support its findings.
Footnotes
1. Water Code section 10910(g)(1) provides, "[T]he governing body of each public water system submit the assessment to the city or county not later than 90 days from the date on which the request was received. The governing body of each public water system ... shall approve the assessment prepared pursuant to this section at a regulator or special meeting."
2. City of Los Angeles v. National Highway Traffic Safety Admin. (D.C. Cir. 1990) 912 F.2d 478, 483)
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