In San Diego Navy Broadway Complex Coalition v. City of San Diego (June 17, 2010, Case No. D055699 ) 185 Cal.App.4th 924, the Court of Appeal, Fourth Appellate District, held that the City of San Diego was not required to prepare a subsequent or supplemental EIR to address a redevelopment project’s potential impact on global climate change. The court based its ruling on a finding that the approving agency lacked the discretion to address this particular issue, even though it had limited discretion over aesthetic issues.
The City of San Diego certified an EIR in 1992 for the Navy Broadway Complex Project, the redevelopment of a U.S. Navy administration site in the downtown area and, at the same time, entered into a development agreement for the project. The agreement established a development plan and design guidelines; it further provided that the developer must submit its construction documents to the City for a determination of consistency with the aesthetic criteria in the development plan and urban design guidelines. Later, in 2007, the City reviewed the developer’s plans, found they were consistent, and concluded that no further environmental review was necessary under CEQA. San Diego Navy Broadway Complex Coalition filed a petition for writ of mandate, claiming that the City was required to update the project’s EIR to address various impacts, including global climate change.
The court rejected this claim. It began by pointing out that once an EIR has been certified for a project, CEQA contains a “strong presumption” against further review. When additional discretionary actions are undertaken in the future with respect to the project, additional environmental review is required only when the circumstances set out in Public Resources Code section 21166 are present.
The most important part of the court’s holding dealt with the scope of potential review under section 21166. In evaluating whether there are changed circumstances warranting further review, the court held that the analysis should be informed by the scope of the agency discretion.
The court pointed to a line of case law starting with Friends of Westwood, Inc. v. City of Los Angeles (1987) 191 Cal.App.3d 259, holding that CEQA’s review was limited to discretionary projects, as opposed to ministerial projects. The Supreme Court embraced this line of reasoning in Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 117, wherein the Court explained that the limitation of CEQA to discretionary projects “implicitly recognizes that unless a public agency can shape the project in a way that would respond to concerns raised in an EIR… environmental review would be a meaningless exercise.” Thus, under Friends of Westwood cases following it, the discretion that triggers CEQA review must be of a kind that allowed an agency to deny or condition a project to address environmental issues. But Friends of Westwood and Mountain Lion Foundation dealt with whether a project was subject to CEQA in the first instance, not the scope of subsequent or supplemental review under Public Resources Code section 21166.
The court in San Diego Navy Broadway Complex Coalition extended the reasoning of Friends of Westwood and Mountain Lion Foundation to the context of 21166 to hold that, essentially, there must be a nexus between the scope of the agency’s remaining discretion over the project and the changed circumstances that might otherwise trigger environmental review. In this context, the court held: “The exercise of discretion does not automatically qualify an agency action as a project subject to CEQA. To trigger CEQA compliance, the discretion must be of a certain kind; it must provide the agency with the ability and authority to ‘mitigate environmental damage to some degree.’” Thus, in making a determination under section 21166 regarding the extent of the subsequent review that should be prepared, if any, petitioners may no longer be heard to argue that (1) there is a discretionary action and (2) there are changed circumstances, now go forth and study those changed circumstances in a new environmental document. Rather, in order to mandate further environmental review under CEQA section 21166, the San Diego Navy Broadway Complex Coalition case provides that there must be a nexus between those two factors.
In this case, where the scope of the City’s discretionary action was limited to aesthetic concerns, the court held that the City was not required to engage in further environmental review to evaluate the changed circumstances related to global warming in as much as there was no established nexus between the City’s discretion and the stated changed circumstances; while the City may have discretion as to aesthetic issues, this does not “establish that [the City] exercised any discretionary authority to mitigate the Project’s impact on global climate change.”
The Coalition has not argued on appeal that in exercising discretion in determining whether [the project was] consistent with the design plan and … design guidelines, the [City] could consider the impact of the Project on global climate change, and we see no basis for such an argument. Absent such a showing, there is no basis for requiring the City to conduct environmental review of an issue as to which it would have no authority to respond.
The court concluded that, under these circumstances, environmental review of global climate change would be a “meaningless exercise.”