• City Not Required to Prepare Supplemental Environmental Impact Report to Address Global Climate Change Where City Did Not Grant a Discretionary Approval that Allowed It to Address the Project’s Impact on This Issue
  • September 8, 2010 | Authors: Mona Ebrahimi; Daniel J. O'Hanlon
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In San Diego Navy Broadway Complex Coalition v. City of San Diego, (185 Cal.App.4th 924, Cal.App. 4 Dist., June 17, 2010), a court of appeal addressed whether a city that certified an environmental impact report (“EIR”) had to complete a supplemental EIR to address global climate change when the city later reviewed the construction documents to determine if they were consistent with the aesthetic criteria of the development plan. The court of appeal held the city “was not required to prepare a subsequent or supplemental EIR regarding the potential impact of [the] redevelopment project . . . because the [c]ity did not grant a discretionary approval that would provide it with the authority to address the [p]roject’s impact on this environmental issue.”

    In 1992, the City of San Diego (“City”) and the United States of America entered into a development agreement for the redevelopment of waterfront property in City’s downtown area. City prepared and certified an EIR at the time the parties entered into the agreement. The agreement established a development plan and “and a series of urban design guidelines related to the aesthetic design” of the Navy Broadway Complex Project (“Project”). The agreement also required the developer to submit its construction documents to the Centre City Development Corporation (“CCDC”) because the CCDC had to determine whether the documents “were consistent with the aesthetic criteria established in the development plan and the urban design guidelines.”

    Implementation of the Project was delayed. In 2006 and 2007, the developer, Manchester Pacific Gateway, LLC, submitted construction plans to the CCDC for a consistency review. The CCDC then “determined that no further environmental review of the Project was warranted under” the California Environmental Quality Act (“CEQA”). A nonprofit organization, the San Diego Navy Broadway Complex Coalition (“Coalition”), appealed that decision but the city council denied its appeal.

    The Coalition filed a petition for writ of mandate in which it claimed that City had violated CEQA by determining that no further environmental review for the Project was needed. The Coalition argued that “City was required to prepare an updated EIR to address the Project’s impacts on numerous environmental issues, including water-supply, public-services, groundwater contamination, and air pollution, and the Project’s ‘greenhouse-gas emissions and vulnerability to climate-change.’” The Coalition acknowledged that the CCDC was limited in its determination on the issue of whether the construction documents met with the design guidelines, “but claimed that the CCDC had made a ‘subjective’ determination as to whether [the developer’s] submittals were of ‘sufficient quality and beauty’ so as to be consistent with the development plan and urban design guidelines.”

    The trial court found that the consistency determinations made by the CCDC “were not discretionary actions under CEQA.” The trial court further found “CEQA did not require the City to prepare an updated EIR concerning the Project’s greenhouse gas emissions or global climate change impacts because, at the time the City considered whether an updated EIR was required, CEQA did not require an analysis of these environmental issues.”

    The court of appeal held the trial court properly denied the Coalition’s petition for writ of mandate. CEQA generally applies only to discretionary projects, which are projects which require “the exercise of judgment or deliberation when the public agency or body decides to approve or disapprove a particular activity, as distinguished from situations where the public agency or body merely has to determine whether there has been conformity with applicable statutes, ordinances, or regulations.”

    After the certification of an initial EIR, “there is a strong presumption against additional environmental review.” Additional environmental review is only required if “(1) substantial changes are proposed in the project that will require major revisions of the EIR, or (2) substantial changes occur with respect to the circumstances under which the project will be undertaken that will require major revisions in the EIR, or (3) new information, which was not known and could not have been known when the EIR was certified, becomes available.” However, the requirement to prepare a supplemental EIR only “arises where the agency has discretion to respond to the environmental concerns raised in the new EIR” and one of the three circumstances outlined above has occurred. “In the absence of such discretionary approval, the agency has no jurisdiction to prepare a subsequent or supplemental EIR.” The court noted that “[t]his jurisdictional limitation is consistent with the notion that it is nonsensical to require an agency to prepare a subsequent or supplemental EIR unless the agency has the authority to take action that would respond to any concerns that might be raised in the updated EIR.”

    If an agency does not have authority to modify a project based on an EIR’s analysis, “there is no basis for requiring the agency to prepare an EIR.” This same principle applies when determining if an agency is required to prepare a subsequent or supplemental EIR. The court found, “The fact that the CCDC could arguably exercise discretionary authority to alter the aesthetics of the Project so as to make the Project consistent with the development agreement does not demonstrate that the CCDC had the authority to modify the Project in accordance with a proposed updated EIR so as to reduce the impact of the Project on global climate change.”

    The CCDC’s discretionary authority was limited in scope as evidenced by the fact that the development agreement provided that it could not unreasonably withhold its consistency determinations. CCDC did not have the discretion to consider whether the Project would have an impact on global climate change because its discretion was limited in scope to a consideration of the Project’s aesthetics. Coalition failed to show that the CCDC had discretionary authority to address potential environmental concerns about global climate change. Accordingly, the court of appeal found the trial court did not err in denying Coalition’s petition for writ of mandate.