On November 13, 2013, the Third District Court of Appeal published its decision in South County Citizens for Smart Growth v. County of Nevada (Case No. C067764). We discussed this opinion previously, when it was issued in October. The opinion is now citable precedent.
The opinion provides very helpful guidance on when a new “potentially feasible” alternative, proposed after the draft EIR has been circulated for public review, triggers the need for recirculation. This decision is important because it carefully explains the burden of proof and the elements of proof for a challenge brought under CEQA Guidelines section 15088.5, subdivision (a)(3). In essence, the petitioner has the burden to demonstrate that no substantial evidence supported the agency’s decision not to recirculate the EIR. To demonstrate an abuse of discretion, a petitioner must show that no substantial evidence supports any of the following express or implied “negative findings” by a CEQA lead agency: the alternative was not actually feasible; the alternative was not “considerably different from” alternatives already analyzed in the EIR; and the alternative would not “clearly lessen the significant environmental impacts” of the project as approved. (Whether the project proponent has declined to adopt the alternative – another relevant element under subdivision (a)(3) – should be a comparatively more straightforward factual issue.)