• Subsequent CEQA Review Only Required if Agency Has the Discretion to Respond to the Environmental Impacts Raised
  • July 1, 2010 | Author: Fernando Avila
  • Law Firm: Best Best & Krieger LLP - Los Angeles Office
  • In a significant decision for public agencies, the Fourth District Court of Appeal recently concluded that the City of San Diego was not required to prepare a subsequent or supplemental environmental impact report (EIR) regarding the potential impact of a project on climate change. The court reasoned that the City did not grant a discretionary approval that would provide it with the authority to address the project's impact on this particular environmental issue.  This case reinforces the concept that the application of the California Environmental Quality Act (CEQA) to subsequent approvals is relatively narrow in scope and only requires a new EIR in certain specific circumstances.

    In San Diego Navy Broadway Complex Coalition v. City of San Diego, an EIR had previously been certified in the 1990s for the development of waterfront property in downtown San Diego.  Under the development agreement that had been approved at that time, later review of development plans would be necessary to ensure that aesthetic design requirements were fulfilled.  In 2006 and 2007, these development plans were submitted and it was determined that no subsequent or supplemental EIR under Public Resources Code section 21166 was necessary. 

    However, the petitioner argued that the fact that the earlier EIR did not analyze climate change impacts did require a subsequent or supplemental EIR.  Rejecting this, the Court found that the scope of discretion involved in this design review was limited and did not involve the issue that supposedly triggered the need for a subsequent or supplement EIR (namely, climate change).  Thus, the Court held in its opinion issued last Thursday, that, in addition to meeting the conditions of Public Resources Code section 21166, the requirement to prepare a subsequent or supplemental EIR arises only where the agency has discretion to respond to the environmental concerns raised in such a new EIR.