In Friends of the College of San Mateo Gardens v. San Mateo Community College District, (2016) 1 Cal.5th 937, the California Supreme Court resolved some issues about using the environmental review that was conducted for a previous project for a new or significantly changed project. Essentially, the Court held that an an approving agency can rely on an old EIR as the environmental review for a new project as long as the old EIR retains some informational value to the analysis of the new project.
In this case, Petitioner challenged the approval of the San Mateo Community College District’s proposal to demolish a building and garden complex that was previously slated for renovation under a prior version of a District-wide facilities improvement plan. The District approved the original project eleven (11) years prior under a negative declaration, finding that it would have no potentially significant unmitigated environmental impacts. Years later, the District approved substantial changes to the improvement plan without any further environmental analysis. Petitioners argued that the District had to prepare a subsequent or supplemental environmental impact statement (EIR) before approving the changed project. The trial court agreed with the District and denied the petition. The court of appeal reversed, holding that, as a matter of law, the revised project was not merely a change to the original project (which would have been subject to the more deferential “subsequent review” standards), but was a new project altogether (which was subject to the more plaintiff-friendly “fair argument” standard for determining when an environmental impact report needs to be prepared for a new project).
On further appeal, the California Supreme Court ruled that the court of appeal was wrong in applying the fair argument standard applicable to new projects. The Court rejected petitioners’ argument that before applying the subsequent review rules (see Pub. Res. Code section 21166 and CEQA Guidelines section 15162(a)), the court must make a threshold determination as to whether the proposal is a change to a previous project or an entirely new project. Rather, the Court explained that the court’s inquiry is on whether the original environmental document still retains some informational value to the environmental review of the subsequent project. Significantly, the Court held that this inquiry is a factual question (not a legal one), and that the agency’s decision will be upheld if supported by “substantial evidence” – which is a standard of review that is deferential to the decision-making agency. The Court also rejected petitioners’ argument that the subsequent review rules do not apply if the original project was approved based on a negative declaration. It did hold, however, that, “…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….”
©2017 Miles J. Dolinger
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