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New “Potentially Feasible” Alternative Does Not Trigger Draft EIR Recirculation Unless Considered “Significant New Information”; No Findings Needed to Reject Alternative As Infeasible




by:
Ryan Lund
Sheppard, Mullin, Richter & Hampton LLP - San Diego Office

 
December 13, 2013

Previously published on December 10, 2013

In South County Citizens for Smart Growth v. County of Nevada (3d Dist., 10/8/13 C067764) ---Cal.App.4th ---, 2013, the court of appeal rejected a claim that Nevada County violated CEQA by failing to recirculate an EIR when a project was modified after circulation of the draft EIR and a similar but competing alternative proposed by staff was not adopted. The court held that recirculation was not required because the plaintiff had failed to show there was no substantial evidence that the staff alternative was not significant new information for, among other reasons, infeasibility. The court also held that the County did not have to make findings setting forth the reasons the staff alternative was not feasible.

This case involved an EIR prepared for the Higgins Marketplace Project located in southwestern Nevada County. When the County Planning Commission held a hearing on the final EIR, the staff report recommended that the Commission recommend to the Board of Supervisors that it approve a modified version of the project, known as the staff alternative, which would address concerns over the project’s air quality and traffic impacts. The Planning Commission voted in favor of recommending that the Board approve the staff alternative and certify the final EIR. The applicant subsequently revised the project based in large part on the staff alternative, though some distinctions remained. The Planning Commission thereafter voted to recommend that the Board approve the applicant’s revised project rather than the staff alternative and certify the final EIR. The Board ultimately certified the final EIR and approved the revised project.

Plaintiff argued, among other things, that the County violated CEQA by (1) failing to recirculate a revised EIR with the staff alternative, which it claimed was a potentially feasible alternative that would have had less impact on the environment than the applicant’s revised project; and (2) failing to make any findings or otherwise citing to substantial evidence explaining why the staff alternative should not or could not be approved.

The court rejected these arguments, explaining that CEQA only requires recirculation when significant new information is added to the EIR. To be considered “significant new information,” the information must be such that failure to recirculate the EIR with the new information deprived the public of a meaningful opportunity to comment upon a substantive adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect. Recirculation is not required simply because new information is added.

The standard used by the court required the plaintiff to demonstrate there was no substantial evidence that the staff alternative was not significant new information. For the staff alternative to be considered significant new information, the court explained that the alternative had to: (1) be feasible, (2) be considerably different than other previously analyzed alternatives, (3) clearly lessen the significant environmental impacts of the proposed project, and (4) not be adopted by the project’s proponents. The court concluded that the plaintiff had failed to show that a negative finding on any of these factors was not supported by substantial evidence.

The court also held that the County did not have to make findings setting forth the reasons why the staff alternative was not feasible. Rather, it was only required to find that the staff alternative was not significant new information, which was implicit in its decision to certify the EIR without recirculating it. The court explained that the staff alternative was proposed well after the completion of the draft EIR, and a lead agency is only required to give reasons for rejecting an alternative as infeasible during the scoping process, which takes place prior to completion of the draft EIR.



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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