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CASE UPDATE: EIR For Redevelopment Of Treasure Island Complied With CEQA As A Planning-Level EIR Even Though It Was Called A “Project EIR”.

In Citizens for a Sustainable Treasure Island v. City of County of San Francisco, (1st Dist. 2014) 2014 WL 3057986, the court affirmed the City and County of San Francisco’s approval of a new, 20-year master plan for the total redevelopment of Treasure Island and Yerba Buena Island. Petitioner’s main argument on appeal was that the City prejudicially abused its discretion by preparing a project EIR instead of aprogram EIR; the subject EIR characterized itself as a “project EIR” that analyzed all phases of the Project at maximum build out.

What is the difference?

Generally, a “project EIR” is prepared for a construction-level project and “should focus primarily on the changes in the environment that would result from the development project [and] examine all phases of the project including planning, construction, and operation.” (CEQA Guidelines § 15161.)

In contrast, a “program EIR” generally evaluates the broad policy direction of a planning document, such as a general plan, but does not examine the potential site-specific impacts of the many individual projects that may be proposed in the future consistent with the plan. (Pub. Res. Code §§ 21068.5, 21093; CEQA Guidelines, §§ 15168, 15385.)

Program EIRs anticipate that additional environmental review will be conducted for site-specific projects when they are developed. Program EIRs play a key role in what is referred to as “tiered” CEQA analysis, and CEQA expressly encourages the use of them. The idea is that multiple site-specific projects can be tiered from and incorporate the program level environmental review, and thereby avoid duplication of effort. Unfortunately, CEQA does not have specific rules governing when a project-level or program-level EIR is required.

The petitioner in this case was concerned that if the City certified what it was called a “project” EIR for what was essentially a planning-level project, then the City could circumvent the requirement to conduct additional environmental review for any site-specific projects within the plan area. However, the court rejected petitioner’s argument, explaining that it makes little difference what an EIR is titled, and that the adequacy of an EIR is determined on its own merits based on the project information that is currently available.

Furthermore, the court stated that the obligation to conduct supplemental environmental review (for example, for a subsequent, site-specific project), applies regardless of whether the original EIR was prepared as a project EIR or as a program EIR. The test would be: whether substantial changes are proposed in the project that require substantial changes in the EIR; whether substantial changes have occurred in the subject environment; whether a site-specific project will have any significant impacts not previously disclosed or will substantially increase the severity of the impacts that were previously disclosed; or whether new information becomes available which was not known and could not have been known at the time of the previous environmental review.

©2014 Miles j Dolinger. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship

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