On June 10, 2011, the Fourth District Court of Appeal ordered the publication of its decision in Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515 (Case No. D057524). The appellate court affirmed the trial court’s judgment denying a petition for writ of mandate to compel the City of San Diego to complete a supplemental environmental impact report (SEIR) instead of an addendum to a previously certified final environmental impact report (FEIR). The court held the petitioner failed to exhaust administrative remedies, where the petitioner submitted thousands of pages of documents during the public comment period without specifying the exact issue of noncompliance with the California Environmental Quality Act.
In 1994, the City certified a FEIR for a large mixed-use development covering several planning areas. In 2008, a homebuilder applied to the City for approval of a project in one of the last planning areas to be developed. The city prepared a water supply assessment (WSA) and an addendum to its 1994 FEIR, which incorporated the WSA. During the comment period for the addendum to the FEIR, the Citizens for Responsible Equitable Environmental Development (CREED) submitted several letters and a DVD containing over 4,000 pages of data, but did not appear at any of the public hearings. After the City certified the addendum and approved the project, CREED filed a petition for writ of mandate alleging the City should have issued an SEIR instead of an addendum to the 1994 FEIR.
The trial court denied CREED’s petition, holding that CREED failed to exhaust administrative remedies and did not meet its burden of showing new information or changed circumstances required the City to complete an SEIR. The trial court also found the City’s certification of the addendum properly incorporated the WSA, and no separate approval pursuant to Water Code section 10910 was needed because the City was both the water supplier and the lead agency. CREED appealed.
The court of appeal first addressed CREED’s argument that the City did not approve the WSA in accordance with Water Code section 10910. Since the addendum discussed and incorporated the WSA, the court found that the City did not need to separately state the WSA was approved. The court also stated that, unlike circumstances where the water supplier is an independent water agency, the statute does not require approval of a WSA early in the CEQA process when the water supplier and the lead agency are the same entity. The court dismissed CREED’s reliance on California Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4th 1464, because the water supplier in Newhall was an independent water district, and therefore Newhall did not apply to the situation where the City was both the water supplier and the lead agency.
The court next turned to CREED’s contention that an SEIR was required because CREED had submitted evidence of new information or changed circumstances relating to drought and climate change. The court found that CREED failed to properly exhaust administrative remedies, but also stated that CREED’s argument would fail on the merits even if it had satisfied the exhaustion of administrative remedies doctrine. The court held that comments about the factual issue of drought did not give the City adequate notice of the later-pled legal theory that drought conditions required the City to complete an SEIR pursuant to Public Resources Code section 21166. Furthermore, the court found that an agency is not expected to scour thousands of pages of material to discern what objections are being raised against a proposed project. Since CREED’s letters only contained general objections, it could not cite documents buried in the DVD it submitted to the City as evidence of the need for an SEIR due to drought conditions.
After holding that CREED failed to exhaust administrative remedies pursuant to Public Resources Code section 21177, the court also rejected CREED’s argument on the merits. The court reiterated that an SEIR is not required unless new information or changed circumstances require major revisions to the EIR. (Pub. Resources Code, § 21166.) First, the court found CREED failed to produce substantial evidence of new information on drought in the region because CREED only cited to a proclamation by the Governor and a notice from the Department of Water Resources. The court also concluded that CREED failed to produce substantial evidence of new information on climate change impacts because the effects of climate change were known decades before the certification of the 1994 FEIR. Citing Massachusetts v. E.P.A. (2007) 549 U.S. 497, and City of Los Angeles v. National Highway Traffic Safety Admin. (D.C. Cir. 1990) 912 F.2d 478, the court noted that the effect of greenhouse gas emissions on climate change could have been raised when the City was considering the 1994 FEIR. Since the time for challenging the sufficiency of the original EIR has expired, Public Resources Code section 21166 provides a presumption against further review unless the alleged new information could not have been known at the time the EIR was certified.