Fourth District Court of Appeal Declines Invitation to Invalidate CEQA Guidelines Section 15164, Affirming Agency’s Ability to Rely on Addendum to an EIR

The Fourth District Court of Appeal found that the addendum process under CEQA Guidelines section 15164 fills a procedural gap in the statute and is not invalid. The court also ruled that Public Resources Code section 21081 findings are not required again with an addendum. (Save Our Heritage Organisation v. City of San Diego (2018) ___Cal.App.5th___.)

The City of San Diego certified an EIR and approved a project in 2012 to restore pedestrian and park uses to portions of Balboa Park. Save Our Heritage Organisation (SOHO) filed a petition for writ of mandamus challenging the project. The superior court granted the petition and directed the City to rescind the project approval. The Real Party in Interest and SOHO each appealed the judgment, and the court of appeal reversed the trial court’s judgment and upheld the EIR. The Real Party in Interest filed a motion seeking an award of attorney fees, which the trial court denied and the appellate court affirmed.

While the appeals were pending, several physical changes occurred to the project’s environmental setting. In 2016, the City adopted an addendum to the EIR to address modifications to the project. The addendum concluded that:

  1. There were no substantial changes to the project requiring major revisions to the EIR because of new or substantially increased significant environmental effects;
  2. There were no substantial changes in circumstances requiring major revisions to the EIR because of new or substantially increased significant environmental effects; and
  3. There was no new, previously unknown or unknowable, information of substantial importance showing: (a) the project will have significant effects not discussed in the EIR; (b) the project will have substantially more severe significant effects than shown in the EIR; (c) previously infeasible mitigation measures and project alternatives are now feasible and would substantially reduce significant environment effects; or (d) considerably different mitigation measures than analyzed in the EIR would substantially reduce significant environmental effects.

The City incorporated these findings into its resolution adopting the addendum.

CEQA Guidelines Section 15164

The court found that SOHO did not meet its burden of proof to show that CEQA Guidelines section 15164, which allows for preparation of addenda, is invalid. The court explained the difference between quasi-legislative rules (those in which the Legislature has delegated a portion of its lawmaking power) and interpretive rules (those in which an agency interprets a statute’s meaning and effect). Although the California Supreme Court has not ruled on which category applies to the CEQA Guidelines, the court explained that such a distinction was not necessary to make here because, either way, SOHO did not establish that section 15164 is invalid.

The court determined that Guidelines section 15164 is both (1) consistent and not in conflict with CEQA; and (2) reasonably necessary to effectuate the purpose of CEQA.

The court explained that the Resources Agency promulgated Guideline 15164 to implement Public Resources Code section 21166, which describes the circumstances under which an agency must conduct subsequent or supplemental review. That section, explained the court, creates a presumption against further environmental review once an EIR has been finalized. And, although section 21166 does not expressly authorize an “addendum,” the court explained that Guidelines section 15164 fills in the gap for CEQA projects where there is a previously certified EIR that should be revised, but the conditions that warrant preparation of a subsequent EIR under section 21166 are not met. Furthermore, the court said, Guidelines section 15164 is consistent with and furthers the objectives of section 21166 because it requires an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review.

The court also explained that the absence of a public review process for an addendum does not render Guidelines section 15164 inconsistent with CEQA. Instead, the absence of public review reflects the finality of adopted EIRs, and the proscription against further environmental review except in specified circumstances in section 21166. In addition, the court pointed to the analogous requirement that a Final EIR must be recirculated before certification only where revisions add significant new information. Finally, the court emphasized that the Resources Agency first promulgated Guidelines section 15164 in 1983, and the Legislature has not modified CEQA since then to eliminate the addendum process.

Findings Required Under Section 21081

SOHO argued that the City was required to make new findings under section 21081, but the court disagreed. Section 21081 provides that a public agency shall not approve or carry out a project for which an EIR has been certified unless the agency makes specific findings with respect to identified significant effects. The court explained that neither the Code nor the Guidelines suggests new findings are required when an addendum is prepared. And, the court explained, the only purpose of findings is to address new significant effects, but an addendum is only proper where no new significant environmental impacts are discovered. Where there are no new significant impacts, there is no need for findings. Therefore, the court held, findings are not required for an addendum.