The opinion
Filed 9/19/16
IN THE SUPREME COURT OF CALIFORNIA
FRIENDS OF THE COLLEGE OF )
SAN MATEO GARDENS, )
)
Plaintiff and Respondent, )
) S214061
v. )
) Ct.App. 1/1 A135892
SAN MATEO COUNTY COMMUNITY )
COLLEGE DISTRICT et al., )
) San Mateo County
Defendants and Appellants. ) Super. Ct. No. CIV 508656
____________________________________)
To ensure that governmental agencies and the public are adequately
informed about the environmental impact of public decisions, the California
Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.)
requires a lead agency (id., § 21067) to prepare an environmental impact report
(EIR) before approving a new project that ―may have a significant effect on the
environment.‖ (Id., § 21151, subd. (a).) When changes are proposed to a project
for which an EIR has already been prepared, the agency must prepare a subsequent
or supplemental EIR only if the changes are ―[s]ubstantial‖ and require ―major
revisions‖ of the previous EIR. (Id., § 21166.) Guidelines promulgated by the
state Natural Resources Agency (Resources Agency) extend this subsequent
review framework to projects for which a negative declaration was initially
adopted, and no EIR prepared, because the agency had concluded the project
1
would have no potentially significant environmental effects. (Cal. Code Regs., tit.
14, § 15162; hereafter CEQA Guidelines.)
In this case, a community college district proposed a district-wide facilities
improvement plan that called for demolishing certain buildings and renovating
others. The district approved the plan after determining that it would have no
potentially significant, unmitigated effect on the environment. Years later, the
district proposed changes to the plan. The changes included a proposal to
demolish one building complex that had originally been slated for renovation, and
to renovate two other buildings that had originally been slated for demolition. The
district approved the changes after concluding they did not require the preparation
of a subsequent or supplemental EIR under Public Resources Code section 21166
(section 21166) and CEQA Guidelines section 15162. The Court of Appeal
invalidated the district‘s decision, finding it ―clear‖ as a matter of law that the
district‘s proposed demolition of the building complex was not merely a change to
its previously approved project, but a new project altogether. The court ruled that
the district‘s proposal was therefore subject to the initial environmental review
standards of Public Resources Code section 21151 (section 21151) rather than the
subsequent review standards of section 21166 and CEQA Guidelines section
15162.
We conclude that the Court of Appeal erred in its application of this new
project test. When an agency proposes changes to a previously approved project,
CEQA does not authorize courts to invalidate the agency‘s action based solely on
their own abstract evaluation of whether the agency‘s proposal is a new project,
rather than a modified version of an old one. Under the statutory scheme, the
agency‘s environmental review obligations depend on the effect of the proposed
changes on the decisionmaking process, rather than on any abstract
characterization of the project as ―new‖ or ―old.‖ An agency that proposes project
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changes thus must determine whether the previous environmental document
retains any relevance in light of the proposed changes and, if so, whether major
revisions to the previous environmental document are nevertheless required due to
the involvement of new, previously unstudied significant environmental impacts.
These are determinations for the agency to make in the first instance, subject to
judicial review for substantial evidence.
I.
A.
―In CEQA, the Legislature sought to protect the environment by the
establishment of administrative procedures drafted to ‗[e]nsure that the long-term
protection of the environment shall be the guiding criterion in public decisions.‘ ‖
(No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 74 (No Oil).) At the
―heart of CEQA‖ (CEQA Guidelines, § 15003, subd. (a)) is the requirement that
public agencies prepare an EIR for any ―project‖ that ―may have a significant
effect on the environment.‖ (§ 21151, subd. (a); see id., §§ 21080, subd. (a),
21100, subd. (a).) The purpose of the EIR is ―to provide public agencies and the
public in general with detailed information about the effect which a proposed
project is likely to have on the environment; to list ways in which the significant
effects of such a project might be minimized; and to indicate alternatives to such a
project.‖ (Pub. Resources Code, § 21061.) The EIR thus works to ―inform the
public and its responsible officials of the environmental consequences of their
decisions before they are made,‖ thereby protecting ― ‗not only the environment
but also informed self-government.‘ ‖ (Citizens of Goleta Valley v. Board of
Supervisors (1990) 52 Cal.3d 553, 564, quoting Laurel Heights Improvement
Assn. v. Regents of University of California (1988) 47 Cal.3d 376, 392 (Laurel
Heights).)
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Under CEQA and its implementing guidelines, an agency generally
conducts an initial study to determine ―if the project may have a significant effect
on the environment.‖ (CEQA Guidelines, § 15063, subd. (a).) If there is
substantial evidence that the project may have a significant effect on the
environment, then the agency must prepare and certify an EIR before approving
the project. (No Oil, supra, 13 Cal.3d at p. 85; see also Pub. Resources Code,
§§ 21100 [state agencies], 21151 [local agencies].) On the other hand, no EIR is
required if the initial study reveals that ―there is no substantial evidence that the
project or any of its aspects may cause a significant effect on the environment.‖
(CEQA Guidelines, § 15063, subd. (b)(2).) The agency instead prepares a
negative declaration ―briefly describing the reasons that a proposed project . . .
will not have a significant effect on the environment and therefore does not require
the preparation of an EIR.‖ (Id., § 15371; see id., § 15070.) Even when an initial
study shows a project may have significant environmental effects, an EIR is not
always required. The public agency may instead prepare a mitigated negative
declaration (MND) if ―(1) revisions in the project plans . . . before the proposed
negative declaration and initial study are released for public review would avoid
the effects or mitigate the effects to a point where clearly no significant effect on
the environment would occur, and (2) there is no substantial evidence in light of
the whole record before the public agency that the project, as revised, may have a
significant effect on the environment.‖ (Pub. Resources Code, § 21064.5.)
For many projects, this is the end of the environmental review process. But
like all things in life, project plans are subject to change. When such changes
occur, section 21166 provides that ―no subsequent or supplemental environmental
impact report shall be required‖ unless at least one or more of the following
occurs: (1) ―[s]ubstantial changes are proposed in the project which will require
major revisions of the environmental impact report,‖ (2) there are ―[s]ubstantial
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changes‖ to the project‘s circumstances that will require major revisions to the
EIR, or (3) new information becomes available. (§ 21166.)
Although section 21166 does not, by its terms, address cases in which a
negative declaration or an MND, rather than an EIR, has been prepared, CEQA
Guidelines section 15162 provides that no subsequent EIR is required either
―[w]hen an EIR has [previously] been certified or [when] a negative declaration
[has previously been] adopted for a project,‖ unless there are substantial changes
to a project or its circumstances that will require major revisions to the existing
EIR or negative declaration. (CEQA Guidelines, § 15162, subd. (a), italics added;
see also § 21166.) ―If changes to a project or its circumstances occur or new
information becomes available after adoption of a negative declaration,‖ and if no
subsequent EIR is required, the agency ―shall determine whether to prepare a
subsequent negative declaration, an addendum, or no further documentation.‖
(CEQA Guidelines, § 15162, subd. (b).) CEQA Guidelines further provide that an
agency must prepare an addendum to a previously certified EIR ―if some changes
or additions are necessary but none of the conditions described in Section 15162
calling for preparation of a subsequent EIR have occurred.‖ (Id., § 15164, subd.
(a).) An addendum to an adopted negative declaration ―may be prepared if only
minor technical changes or additions are necessary or none of the conditions
described in Section 15162 calling for the preparation of a subsequent EIR or
negative declaration have occurred.‖ (Id., § 15164, subd. (b).)
B.
This case arises from a series of proposed facilities improvements to a
college campus in San Mateo County. In 2006, the San Mateo Community
College District and its Board of Trustees (collectively, District) adopted a
facilities master plan (Plan) proposing nearly $1 billion in new construction and
facilities renovations at the District‘s three college campuses. At the College of
5
San Mateo (College), the District‘s Plan included a proposal to demolish certain
buildings and renovate others. The buildings slated for renovation included the
College‘s ―Building 20 complex,‖ which includes a small cast-in-place concrete
classroom and lab structure, greenhouse, lath house, surrounding garden space,
and an interior courtyard.
In 2006, the District published an initial study and mitigated negative
declaration analyzing the physical environmental effects of implementing the
Plan‘s proposed improvements at the College, including the proposed
rehabilitation of the Building 20 complex. The MND stated that, with the
implementation of certain mitigation measures, the Plan would not have a
significant effect on the environment. In 2007, the District certified its initial
study and adopted the 2006 MND.
When the District later failed to obtain funding for the planned Building 20
complex renovations, it re-evaluated the proposed renovation. In May 2011, the
District issued a notice of determination, indicating that it would instead demolish,
rather than renovate, the ―complex and replace it with parking lot, accessibility,
and landscaping improvements.‖ The District also proposed to renovate two other
buildings, buildings 15 and 17, that had previously been slated for demolition.
The District concluded a subsequent or supplemental EIR was not required.
It instead addressed the change through an addendum to its 2006 initial study and
MND, concluding that ―the project changes would not result in a new or
substantially more severe impact than disclosed in the 2006 [initial study and
mitigated negative declaration]. Therefore, an addendum . . . is the appropriate
CEQA documentation.‖ (San Mateo County Community College Dist., CEQA
Addendum: Evaluation of Project Change to Building 20 Complex (May 2011)
p. 20.)
6
The newly proposed demolition of the Building 20 complex, and
particularly the demolition of the complex‘s associated gardens, proved
controversial. Certain members of the public, as well as a number of College
students and faculty, vocally criticized the demolition proposal at public hearings.
The District nevertheless approved demolition of the Building 20 complex in
accordance with the addendum.
Plaintiff Friends of the College of San Mateo Gardens filed suit challenging
the approval. The District thereafter rescinded its original addendum and issued a
revised addendum in August 2011. The revised addendum reiterated the original
addendum‘s conclusion but bolstered its analysis. On August 24, 2011, after
public comment and discussion, the revised addendum was adopted and
demolition of the Building 20 complex was reapproved. Plaintiff voluntarily
dismissed its prior suit and filed the present action, challenging the revised
addendum and the reapproval of the demolition. Plaintiff sought a peremptory
writ of mandate ordering the District to set aside its approval of the Building 20
complex demolition and to fully comply with CEQA, including preparing an
adequate EIR and adopting feasible alternatives and mitigation measures. The
trial court found that the demolition project was inconsistent with the previously
approved plan and that its impacts were not addressed in the 2006 mitigated
negative declaration. The trial court thus granted plaintiff‘s petition for a writ of
mandate, ordering the District to refrain from taking further action adversely
affecting the physical environment at the Building 20 complex pending the
District‘s full compliance with CEQA.
The Court of Appeal affirmed. Relying primarily on Save Our
Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288 (Save Our
Neighborhood), the court concluded, as a threshold matter of law, that the
proposed building demolition was a new project, rather than a project
7
modification. The court accordingly concluded that the agency is required to
engage in an initial study of the project to determine whether an EIR is required
under section 21151.
In so holding, the Court of Appeal deepened a disagreement among the
appellate courts concerning the reasoning of Save Our Neighborhood, supra, 140
Cal.App.4th 1288. In Save Our Neighborhood, the Court of Appeal invalidated an
agency‘s approval of a proposed modification to a project that had previously been
approved via negative declaration. Although the original project and the proposed
modification involved ―the same land and . . . similar mixes of uses,‖ there were a
number of differences. (Id. at p. 1300 [the original project was a 106-unit motel
that included some 15,000 square feet of other retail uses; the purported
modification was a 102-unit hotel that did not include any separate retail uses and
was sponsored by a different developer than the original project].) The court held
that the agency had erroneously relied on the statutory and regulatory provisions
governing the preparation of subsequent or supplemental EIRs because the
proposal was not a modification at all but rather a ―new project altogether.‖ (Id. at
p. 1301.) The court concluded that whether the proposal constituted a ―new
project‖ was ―a threshold question‖ of law and rejected the agency‘s determination
to treat the proposal as a modification after reviewing that question de novo.
(Ibid.)
Save Our Neighborhood was criticized in Mani Brothers Real Estate Group
v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1400 (Mani Brothers). In
Mani Brothers, the agency certified an EIR for an original project consisting of
―five buildings with . . . offices, a 550- to 770-room hotel, retail facilities, and an
optional cultural center.‖ (Id. at p. 1389.) Fifteen years later, the project‘s
developer proposed to revise the project, including by ―reduc[ing] much of the
[o]riginal [p]roject‘s office and retail space, and eliminat[ing] the optional culture
8
use component, while maintaining the hotel component and adding residential
components,‖ which increased the overall size of the project from ―approximately
2.7 million square feet to a maximum of just over 3.2 million square feet.‖ (Id. at
p. 1391.) The Mani Brothers court affirmed the agency‘s determination that the
proposal was a modification of an existing project and found the agency‘s
conclusion that no supplemental EIR was required to be supported by substantial
evidence. (Id. at pp. 1398–1399.) The court distinguished Save Our
Neighborhood, supra, 140 Cal.App.4th 1288, on the ground that it ―involved an
addendum to a previously certified negative declaration and not . . . an addendum
to a previously certified EIR.‖ (Mani Brothers, at p. 1400.) But the court also
opined that, even if it were not distinguishable, Save Our Neighborhood‘s
―fundamental analysis is flawed.‖ (Mani Brothers, at p. 1400.) The court
explained that Save Our Neighborhood‘s threshold ― ‗new project‘ test . . .
inappropriately bypassed otherwise applicable statutory and regulatory
provisions,‖ and ―undermine[d] the deference due the agency.‖ (Mani Brothers, at
pp. 1400–1401; see also Pub. Resources Code, § 21083.1.)
The Court of Appeal in this case acknowledged the disagreement between
Save Our Neighborhood and Mani Brothers. It concluded, however, that ―in the
narrow circumstances of the present case, where it is clear from the record that the
nature of the project has fundamentally and qualitatively changed to the point
where the new proposal is actually a new project altogether,‖ the approach
adopted in Save Our Neighborhood ―is both workable and sound.‖1 Here, the
1 Shortly after issuing its decision in this case, the same division of the Court
of Appeal issued a decision in which it declined to apply the Save Our
Neighborhood new project test to review a city‘s determination that changes to a
previously approved project did not require a supplemental or subsequent EIR.
(Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 201–202.)
(Footnote continued on next page.)
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court observed, the District‘s 2011 addendum ―changes ‗renovation‘ of the
Building 20 complex to ‗demolition‘ of the complex‘s buildings and a substantial
portion of the gardens.‖ The court concluded: ―[A]t least under the
straightforward facts of the present case we can decide, as a matter of law, that the
demolition project is a ‗new project.‘ ‖
The Court of Appeal acknowledged the District‘s argument that the
proposal to demolish the Building 20 complex is only one component of the
District‘s project, which, as revised, now proposes to renovate two buildings that
had previously been slated for demolition. Relying on Sierra Club v. County of
Sonoma (1992) 6 Cal.App.4th 1307 (Sierra Club), however, the Court of Appeal
concluded that when an agency initially adopts a broad, large-scale environmental
document — such as the 2006 MND here — that addresses the ―environmental
effects of a complex long-term management plan‖ (id. at p. 1316), a court can find
a material alteration regarding a particular site or activity covered by that plan to
be a new project triggering environmental review under section 21151.
II.
Once a project has been subject to environmental review and received
approval, section 21166 and CEQA Guidelines section 15162 limit the
circumstances under which a subsequent or supplemental EIR must be prepared.
These limitations are designed to balance CEQA‘s central purpose of promoting
consideration of the environmental consequences of public decisions with interests
(Footnote continued from previous page.)
Explaining that ― ‗a court should tread with extraordinary care before reversing a
local agency‘s determination about the environmental impact of changes to a
project,‘ ‖ the court instead ―elect[ed] to evaluate the City‘s decision to proceed
under section 21166 using the substantial evidence test.‖ (Id. at p. 202.)
10
in finality and efficiency. (See Bowman v. City of Petaluma (1986) 185
Cal.App.3d 1065, 1074 (Bowman).) Thus, as both Save Our Neighborhood and
Mani Brothers explained: ―The purpose behind the requirement of a subsequent
or supplemental EIR or negative declaration is to explore environmental impacts
not considered in the original environmental document. . . . The event of a change
in a project is not an occasion to revisit environmental concerns laid to rest in the
original analysis. Only changed circumstances . . . are at issue.‖ (Save Our
Neighborhood, supra, 140 Cal.App.4th at p. 1296; accord, Mani Brothers, supra,
153 Cal.App.4th at pp. 1398–1399.)
Consistent with these principles, section 21166 and CEQA Guidelines
section 15162 provide that an agency that proposes changes to a previously
approved project must determine whether the changes are ―[s]ubstantial‖ and ―will
require major revisions of the previous EIR or negative declaration due to the
involvement of new significant environmental effects or a substantial increase in
the severity of previously identified significant effects.‖ (CEQA Guidelines,
§ 15162, subd. (a)(1).) If the proposed changes meet that standard, then a
subsequent or supplemental EIR is required.
Drawing on the reasoning of Save Our Neighborhood, plaintiff argues that
implicit in the statutory and regulatory scheme is a threshold inquiry that
determines whether the subsequent review provisions properly apply in the first
place. Because section 21166 and CEQA Guidelines section 15162 both refer to
substantial changes to ―a project‖ — and not, as the Save Our Neighborhood court
observed, changes to ―a new project proposed for a site where a similar project
was previously approved‖ — a court reviewing an agency‘s proposed approval of
project changes must first satisfy itself that the project remains the same project as
before, rather than an entirely new project, before proceeding to evaluate whether
the changes call for a subsequent or supplemental EIR under CEQA‘s subsequent
11
review provisions. (Save Our Neighborhood, supra, 140 Cal.App.4th at p. 1297.)
Plaintiff further argues that whether an agency‘s proposal qualifies as a new
project is a question of law for courts to decide based on their independent
judgment. The premise of plaintiff‘s argument is sound, but its conclusions are
not.
Plaintiff is correct that the subsequent review provisions can apply only if
the project has been subject to initial review; they can have no application if the
agency has proposed a new project that has not previously been subject to review.
But plaintiff‘s approach would assign to courts the authority — indeed, the
obligation — to determine whether an agency‘s proposal qualifies as a new
project, in the absence of any standards to govern the inquiry. Plaintiff does not
suggest any standards, nor do the cases on which it relies. The Save Our
Neighborhood court simply asserted that the modified project proposal at issue
was a new project, pointing out that while the ―projects‖ at issue involved the
―same land‖ and a ―similar mix[] of uses,‖ they ―ha[d] different proponents and
there [was] no suggestion the latter project utilized any of the drawings or other
materials connected with the earlier project . . .‖ (Save Our Neighborhood, supra,
140 Cal.App.4th at p. 1300). The court neither purported to give any content to
the determination whether a proposal counts as a new project, nor did it explain
why the distinctions it identified make any difference for purposes of CEQA,
whose aim is simply to ―compel government . . . to make decisions with
environmental consequences in mind.‖ (Bozung v. Local Agency Formation Com.
(1975) 13 Cal.3d 263, 283.) The Court of Appeal in this case likewise offered no
standards to guide the inquiry, simply declaring it ―clear‖ that the proposal at issue
constituted a ―new project.‖
In the absence of any benchmark for measuring the newness of a given
project, the new project test plaintiff urges would inevitably invite arbitrary
12
results. As the Court of Appeal in Mani Brothers observed, to ask whether an
agency proposal constitutes a ― ‗new project‘ ‖ in the abstract ―does not provide an
objective or useful framework. Drastic changes to a project might be viewed by
some as transforming the project to a new project, while others may characterize
the same drastic changes in a project as resulting in a dramatically modified
project. Such labeling entails no specific guidelines and simply is not helpful to
our analysis.‖ (Mani Brothers, supra, 153 Cal.App.4th at p. 1400.)
What is more, to ask whether proposed agency action constitutes a new
project, purely in the abstract, misses the reason why the characterization matters
in the first place. The central purpose of CEQA is to ensure that agencies and the
public are adequately informed of the environmental effects of proposed agency
action. The subsequent review provisions, as Save Our Neighborhood recognized,
are accordingly designed to ensure that an agency that proposes changes to a
previously approved project ―explore[s] environmental impacts not considered in
the original environmental document.‖ (Save Our Neighborhood, supra, 140
Cal.App.4th at p. 1296.) This assumes that at least some of the environmental
impacts of the modified project were considered in the original environmental
document, such that the original document retains some relevance to the ongoing
decisionmaking process. A decision to proceed under CEQA‘s subsequent review
provisions must thus necessarily rest on a determination — whether implicit or
explicit — that the original environmental document retains some informational
value. If the proposed changes render the previous environmental document
wholly irrelevant to the decisionmaking process, then it is only logical that the
agency start from the beginning under section 21151 by conducting an initial study
to determine whether the project may have substantial effects on the environment.
It follows that, for purposes of determining whether an agency may proceed
under CEQA‘s subsequent review provisions, the question is not whether an
13
agency‘s proposed changes render a project new in an abstract sense. Nor does
the inquiry turn on the identity of the project proponent, the provenance of the
drawings, or other matters unrelated to the environmental consequences associated
with the project. (Cf. Save Our Neighborhood, supra, 140 Cal.App.4th at
p. 1300.) Rather, under CEQA, when there is a change in plans, circumstances, or
available information after a project has received initial approval, the agency‘s
environmental review obligations ―turn[] on the value of the new information to
the still pending decisionmaking process.‖ (Marsh v. Oregon Natural Resources
Council (1989) 490 U.S. 360, 374 (Marsh).)2 If the original environmental
document retains some informational value despite the proposed changes, then the
agency proceeds to decide under CEQA‘s subsequent review provisions whether
project changes will require major revisions to the original environmental
document because of the involvement of new, previously unconsidered significant
environmental effects. 3
2 In this respect, CEQA resembles the federal statute on which it was
modeled. (See Marsh, supra, 490 U.S. at p. 374 [agencies employ a ― ‗rule of
reason‘ ‖ in determining whether to issue a supplemental environmental impact
statement under the National Environmental Policy Act of 1969, 42 U.S.C. § 4321
et seq.]; Citizens of Goleta Valley v. Board of Supervisors, supra, 52 Cal.3d 553,
565, fn. 4 [―CEQA was modeled on the National Environmental Policy Act
(NEPA)‖ and ― ‗we have consistently treated judicial and administrative
interpretation of the latter enactment as persuasive authority in interpreting
CEQA.‘ ‖].)
3 As a practical matter, if proposed modifications have rendered the prior
environmental review wholly irrelevant to the ongoing decisionmaking process,
and if the modifications create potentially significant environmental impacts, the
two inquiries will yield substantially the same result: the agency must prepare an
EIR. Although CEQA distinguishes ―subsequent EIRs‖ (§ 21166) from initial
EIRs (see § 21151), both types of EIRs are subject to the same general procedural
and substantive requirements. (See generally Pub. Resources Code, § 21061
[defining environmental impact report]; see also id., §§ 21100, 21100.1
(Footnote continued on next page.)
14
This understanding of the relevant statutory framework supplies the
benchmark missing from the Court of Appeal‘s application of the new project test
in this case. It also exposes the court‘s error in treating the new project inquiry as
a question for the court‘s independent determination under a de novo standard.
Plaintiff, seeking to defend the court‘s chosen standard of review, likens the new
project inquiry to the inquiry whether a particular activity qualifies as a project
within the meaning of CEQA. (See Save Our Neighborhood, supra, 140
Cal.App.4th at p. 1297; cf. Save Tara v. City of West Hollywood (2008) 45 Cal.4th
116, 131; Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41
Cal.4th 372, 382; Fullerton Joint Union High School Dist. v. State Bd. of
Education (1982) 32 Cal.3d 779, 795–798.) The comparison fails. Whether a
proposed activity is a project within the meaning of CEQA is, as we have
recognized, a predominantly legal question, for it depends on whether ―undisputed
data in the record on appeal‖ satisfy the detailed statutory definition of the term
―project.‖ (Muzzy Ranch Co., supra, 41 Cal.4th at p. 382, citing Pub. Resources
Code, § 21065 [defining ―project‖ as ―an activity which may cause either a direct
physical change in the environment, or a reasonably foreseeable indirect physical
change in the environment‖].) But whether an initial environmental document
remains relevant despite changed plans or circumstances — like the question
whether an initial environmental document requires major revisions due to
changed plans or circumstances — is a predominantly factual question. It is thus a
question for the agency to answer in the first instance, drawing on its particular
(Footnote continued from previous page.)
[information to be included], 21104, 21153 [consultation requirements], 21091–
21092 [public notice and comment].)
15
expertise. (Center for Biological Diversity v. Department of Fish & Wildlife
(2015) 62 Cal.4th 204, 215.) A court‘s task on review is then to decide whether
the agency‘s determination is supported by substantial evidence; the court‘s job
― ‗ ―is not to weigh conflicting evidence and determine who has the better
argument.‖ ‘ ‖ (Ibid.)
We expect occasions when a court finds no substantial evidence to support
an agency‘s decision to proceed under CEQA‘s subsequent review provisions will
be rare, and rightly so; ―a court should tread with extraordinary care‖ before
reversing an agency‘s determination, whether implicit or explicit, that its initial
environmental document retains some relevance to the decisionmaking process.
(Moss v. County of Humboldt (2008) 162 Cal.App.4th 1041, 1052, fn. 6.)4 But
this is only the first step. Once a court determines that substantial evidence
supports an agency‘s decision to proceed under CEQA‘s subsequent review
provisions (see § 21166; CEQA Guidelines, § 15162), the next — and critical —
step is to determine whether the agency has properly determined how to comply
with its obligations under those provisions. In particular, where, as here, the
agency has determined that project changes will not require ―major revisions‖ to
its initial environmental document, such that no subsequent or supplemental EIR is
required, the reviewing court must then proceed to ask whether substantial
evidence supports that determination. As explained below, judicial review must
reflect the exacting standard that an agency must apply when changes are made to
a project that has been approved via a negative declaration.
4 As noted, an agency‘s decision to proceed under CEQA‘s subsequent
review provisions necessarily incorporates an implicit conclusion that the original
environmental document retains at least some degree of relevance. Nothing in the
statute requires the agency to make an explicit finding to that effect.
16
III.
Perhaps anticipating our disagreement with the Court of Appeal‘s
formulation and application of Save Our Neighborhood‘s new project test,
plaintiff asks us to affirm the judgment below on the alternative ground that
CEQA‘s subsequent review provision, section 21166, applies only to projects for
which an initial EIR was prepared. Plaintiff urges us to hold that CEQA
Guidelines section 15162 is invalid to the extent that it extends the section 21166
subsequent review framework to projects that were initially approved via negative
declaration, like the campus improvement project at issue in this case.5
The Resources Agency, as the ―agency with primary responsibility for
statewide implementation of CEQA,‖ promulgated CEQA Guidelines section
15162 in accordance with its statutory obligation to establish guidelines for
CEQA‘s implementation. (California Building Industry Assn. v. Bay Area Air
Quality Management Dist. (2015) 62 Cal.4th 369, 378; see Pub. Resources Code,
§ 21083.) These Guidelines, we have said, are ―central to the statutory scheme‖;
they ―serve to make the CEQA process tractable for those who must administer it,
those who must comply with it, and ultimately, those members of the public who
must live with its consequences.‖ (California Building Industry Assn., supra, 62
Cal.4th at pp. 384–385.) Although we have ―not [yet] decided . . . whether the
Guidelines are regulatory mandates or only aids to interpreting CEQA‖ (Laurel
5 Plaintiff did not raise this issue in its response to the petition for review,
and indeed conceded in its opening brief that the ―point has not been at issue in
this case.‖ At oral argument, however, both parties focused on this issue rather
than on the issue on which we had granted review. Concluding that a full response
to the issue presented requires resolution of plaintiff‘s claim that CEQA
Guidelines section 15162 is invalid as applied to projects initially approved by
negative declaration, we solicited supplemental briefing from the parties and the
Resources Agency to address it.
17
Heights, supra, 47 Cal.3d at p. 391, fn. 2), we have nevertheless concluded that
the Guidelines are owed deference insofar as they reflect the agency‘s specialized
knowledge and expertise and were adopted through a process of notice and public
comment under the California Administrative Procedure Act. (California Building
Industry Assn., supra, 62 Cal.4th at pp. 381, 389–390.) Thus, we afford the
Guidelines ―great weight‖ unless a provision is ―clearly unauthorized or erroneous
under the statute.‖ (Id. at p. 381.)
Plaintiff argues that CEQA Guidelines section 15162 is clearly erroneous
because section 21166 is, by its terms, limited to projects for which an EIR has
been prepared. Plaintiff argues that the omission of any reference to negative
declarations reflects a legislative intent to exclude projects initially approved via
negative declaration from the subsequent review framework of section 21166, and
instead to require a new round of initial study each time changes are proposed in
project plans or circumstances. We disagree.
To begin with, the omission of any reference to negative declarations in
section 21166 is less revealing than plaintiff suggests. At the time section 21166
was enacted in 1972, no provision of CEQA referred to negative declarations; the
category of negative declarations originated with the Resources Agency‘s
promulgation of the first set of CEQA implementation guidelines the following
year. (See No Oil, supra, 13 Cal.3d at p. 74 and fn. 2, citing former Cal. Admin.
Code, tit. 14, § 15083 [adopted 1973].) The Legislature subsequently ratified this
innovation in 1976, when it amended CEQA to direct the Resources Agency to
―include objectives and criteria for . . . the preparation of environmental impact
reports and negative declarations.‖ (Pub. Resources Code, § 21083, subd. (a), as
amended by Stats. 2004, ch. 689, § 1, p. 5239, italics added.) Because, at the time
of section 21166‘s enactment, EIRs were the only type of environmental document
expressly referenced by CEQA‘s text, the Legislature could not have used the
18
phrase ―environmental impact report‖ in section 21166 with any specific intent to
exclude negative declarations from its scope.
Plaintiff directs our attention to the Legislature‘s 1977 amendments to
CEQA in Assembly Bill No. 884 (AB 884), which, among other things, amended
section 21166 to add a provision for the preparation of subsequent or supplemental
EIRs based on the discovery of new information. (See Stats. 1977, ch. 1200, § 16,
p. 4003.) Plaintiff observes that while the Legislature did not amend section
21166 to add a reference to negative declarations, it did add two statutory
provisions that do specifically refer to negative declarations. (See Pub. Resources
Code, § 21080.1 [―The lead agency shall be responsible for determining whether
an environmental impact report [or] a negative declaration . . . shall be required for
any project which is subject to [CEQA]. That determination shall be final and
conclusive on all persons . . . unless challenged as provided in Section 21167.‖];
id., § 21080.3, subd. (a) [―Prior to determining whether a negative declaration or
environmental impact report is required for a project, the lead agency shall consult
with all responsible agencies . . . .‖].) Plaintiff argues that the Legislature‘s failure
to add a similar reference to section 21166 demonstrates its intent to limit section
21166‘s reach to projects initially approved via EIR, and to treat any and all
changes to projects initially approved via negative declaration as though they were
entirely new projects for purposes of section 21151 review.
Plaintiff here places more weight on the 1977 amendments than they can
bear. Given that the Guidelines had already authorized the use of negative
declarations without express statutory authorization — a development the
Legislature had ratified the previous year — the Legislature simply may not have
perceived a need to add an express reference to negative declarations in section
21166. But in any event, when the 1977 amendments did refer to negative
declarations, it was in order to affirm that a lead agency‘s decision to proceed by
19
negative declaration is entitled to the same degree of finality as a decision to
proceed by EIR. (Pub. Resources Code, § 21080.1.) In light of that provision,
plaintiff‘s reading of the 1977 amendments — as implicitly requiring agencies to
start the environmental review process over each time there is a change in plans or
circumstances, no matter how minor — is an unlikely one.
Ultimately, plaintiff‘s argument simply highlights a gap in CEQA‘s
statutory structure. No provision of CEQA directly addresses the subsequent
environmental review obligations for projects that were initially approved via
negative declaration. CEQA authorizes the Resources Agency to fill such gaps
in the statutory scheme, so long as it does so in a manner consistent with the
statute. (See Pub. Resources Code, §§ 21082–21083; City of Santa Ana v. City
of Garden Grove (1979) 100 Cal.App.3d 521, 529 [the CEQA ―statute
empowers [the] administrative agency to exercise a judgment of high order in
implementing legislative policy‖].) And in the year following the 1977
amendments, the Resources Agency filled that gap by extending the predecessor
to CEQA Guidelines section 15162 to projects initially approved by negative
declaration. (See former Cal. Admin. Code, tit. 14, § 15067 [adopted 1978].)
Limiting agencies‘ postapproval review obligations for projects that were
initially approved via negative declaration is wholly consistent with a statutory
scheme in which negative declarations, no less than EIRs, are entitled to a
presumption of finality once adopted. (See Pub. Resources Code, § 21080.1, subd.
(a).) As explained in Benton v. Board of Supervisors (1991) 226 Cal.App.3d
1467, 1479–1480 (Benton): ―In a case in which an initial EIR has been certified,
section 21166 comes into play precisely because in-depth review of the project has
already occurred, the time for challenging the sufficiency of the original CEQA
document has long since expired, and the question before the agency is whether
circumstances have changed enough to justify repeating a substantial portion of
20
the process. [Citations.] These same principles apply with even greater force in a
case such as this,‖ in which the project ―initially raised so few environmental
questions that an EIR was not required, but a negative declaration was found to
satisfy the environmental review requirements of CEQA.‖ The alternative that
plaintiff proposes — which would restart the CEQA process every time plans or
circumstances change, or whenever new information comes to light — ―would
render agency decisionmaking intractable, always awaiting updated information
only to find the new information outdated by the time a decision is made.‖
(Marsh, supra, 490 U.S. at p. 373; see also Laurel Heights, supra, 47 Cal.3d at
p. 396 [noting the original environmental review process includes consideration of
reasonably foreseeable future expansions to the project, and that subsequent EIRs
are necessary when evaluating future action not considered in the initial review].)
The Resources Agency did not act unreasonably in concluding that the statutory
scheme calls for some limitations on postapproval environmental review of
projects initially approved via negative declaration.
Plaintiff‘s stronger arguments do not concern the Guidelines‘ limitations of
postapproval environmental review as such, but instead focus on the substance of
the limitations the Guidelines prescribe. As plaintiff points out, when an agency
initially proposes a project, an EIR is required ―whenever it can be fairly argued
on the basis of substantial evidence that [a] project may have significant
environmental impact.‖ (No Oil, supra, 13 Cal.3d at p. 75; see Pub. Resources
Code, § 21082.2, subd. (a) [requiring an EIR when a project ―may‖ have a
significant effect on the environment]; accord, § 21151, subd. (a).) Thus, when a
reviewing court evaluates an agency‘s initial determination whether to proceed
with an EIR, the court‘s function is ―to determine whether substantial evidence
supported the agency‘s conclusion as to whether the prescribed ‗fair argument‘
could be made. If there was substantial evidence that the proposed project might
21
have a significant environmental impact, evidence to the contrary is not sufficient
to support a decision to dispense with preparation of an EIR . . . because it could
be ‗fairly argued‘ that the project might have a significant environmental impact.‖
(Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1002; see
Bowman, supra, 185 Cal.App.3d at p. 1073 [― ‗fair argument‘ ‖ test is a question
of law, permitting the court‘s independent analysis of the sufficiency of the
evidence].) By contrast, when an agency proposes changes to a previously
approved project, CEQA Guidelines section 15162 generally prohibits the agency
from requiring a subsequent or supplemental EIR unless the agency determines,
―on the basis of substantial evidence in the light of the whole record,‖ that
―[s]ubstantial changes . . . will require major revisions of the previous EIR or
negative declaration due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified significant
effects.‖ (CEQA Guidelines, § 15162, subd. (a).) Plaintiff argues that application
of this substantial evidence standard to projects initially approved via negative
declaration creates a loophole in the statutory scheme, allowing agencies to evade
their obligation to prepare an EIR based on the more demanding ―fair argument‖
standard, so long as the potential environmental effects of the project are caused
by changes in the project after a negative declaration had been approved.
Plaintiff‘s argument would have force if the Guidelines did, in fact, create
such a loophole. But the substantial evidence test referred to in the Guidelines
does not, as plaintiff supposes, refer to substantial evidence that the project, as
modified, will necessarily have significant environmental effects. It instead refers
to substantial evidence that the proposed modifications will involve ―[s]ubstantial
changes‖ that ―require major revisions of the previous EIR or negative declaration
due to the involvement‖ of new or significantly more severe environmental
effects. (CEQA Guidelines, § 15162, subd. (a); see id., § 15384 [defining
22
―substantial evidence‖].) The distinction is important here, because whether
―major revisions‖ will be required as a result of project changes necessarily
depends on the nature of the original environmental document. A negative
declaration is permitted when ―there is no substantial evidence that the project or
any of its aspects may cause a significant effect on the environment‖ (CEQA
Guidelines, § 15063, subd. (b)(2), italics added; see also Pub. Resources Code,
§§ 21151, 21064.5), whereas an EIR is required when a project and project
alternatives may have significant effects (id., § 21002.1, subd. (a)). When there is
a proposal to modify a project originally approved through EIR, no ―major
revision‖ to the initial EIR is required if the initial EIR already adequately
addresses any additional environmental effects that may be caused by the
proposed modification. In contrast, when a project is initially approved by
negative declaration, a ―major revision‖ to the initial negative declaration will
necessarily be required if the proposed modification may produce a significant
environmental effect that had not previously been studied. (CEQA Guidelines,
§ 15162.) Indeed, if the project modification introduces previously unstudied and
potentially significant environmental effects that cannot be avoided or mitigated
through further revisions to the project plans, then the appropriate environmental
document would no longer be a negative declaration at all, but an EIR.6
6 We recognize that language in the appellate cases might be read as applying
a different rule. In Benton, supra, 226 Cal.App.3d 1467, for example, the Court of
Appeal considered whether a proposal to relocate a winery that had previously
been approved via negative declaration required the preparation of a subsequent or
supplemental EIR. Benton held that, under CEQA Guidelines section 15162, the
question whether a subsequent or supplemental EIR was required depended on the
effect of the proposed relocation; the changes were not an occasion to reopen the
original environmental review of the winery project. (Benton, at pp. 1482–1484.)
As the Court of Appeal in Abatti v. Imperial Irrigation Dist. (2012) 205
Cal.App.4th 650 later observed, ―the central premise of Benton [is] that it makes
(Footnote continued on next page.)
23
In short, the substantial evidence standard prescribed by CEQA Guidelines
section 15162 requires an agency to prepare an EIR whenever there is substantial
evidence that the changes to a project for which a negative declaration was
previously approved might have a significant environmental impact not previously
considered in connection with the project as originally approved, and courts must
enforce that standard. (See Friends of “B” Street v. City of Hayward, supra, 106
Cal.App.3d at p. 1002.) It therefore does not permit agencies to avoid their
obligation to prepare subsequent or supplemental EIRs to address new, and
previously unstudied, potentially significant environmental effects. So
understood, CEQA Guidelines section 15162 constitutes a valid gap-filling
(Footnote continued from previous page.)
little sense to set a lower threshold for further environmental review of a project
that is determined not to have a significant effect on the environment than section
21166 sets for a project that may have significant effects on the environment.‖
(Abatti, at p. 673 [agreeing with the ―central premise‖ of Benton].) Benton‘s
longstanding interpretation has been followed by courts and the Resources Agency
and is a correct statement of the law insofar as it recognizes that negative
declarations, like EIRs, are entitled to a presumption of finality; it would, as
Benton says, be ―absurd‖ to require agencies to restart the entire process of
environmental review from scratch each time the agency proposes any change, no
matter how minor, simply because the project was previously approved by
negative declaration. (Benton, supra, 226 Cal.App.3d at p. 1480.) But Benton
went on to conclude that no subsequent or supplemental EIR was required in that
case because, among other things, substantial evidence supported the agency‘s
conclusion that ―[t]he environmental impacts of the modification were not
significant . . . .‖ (Id. at p. 1483.) As seen, however, the inquiry prescribed by the
Guidelines is not whether the environmental impacts of the modification are
significant, but whether the modification requires major revisions to the negative
declaration because of the involvement of new, potentially significant
environmental effects that had not previously been considered in connection with
the earlier environmental study.
24
measure as applied to projects initially approved via negative declaration,
including the project at issue in this case.
IV.
Finally, plaintiff contends that both section 21166 and CEQA Guidelines
section 15162 are inapplicable because the District‘s initially approved project is
akin to a plan, a phased project, or a program rather than a simple project. Relying
on Sierra Club, supra, 6 Cal.App.4th 1307, plaintiff argues that the District‘s
proposed changes to the plans for the Building 20 complex should therefore be
treated as a new site-specific project that triggers new environmental review under
CEQA‘s provisions for so-called ―tiered‖ EIRs. (See Pub. Resources Code,
§§ 21068.5, 21094.) The Court of Appeal appeared to accept this argument as
further support for its conclusion that the project changes at issue may be
considered a new project under a de novo standard of review. The argument also
fails, however, because the tiering provisions — and therefore Sierra Club, supra,
6 Cal.App.4th 1307 (involving a tiered EIR) — have no direct application here.
Unlike ―[p]roject EIR[s],‖ which ―examine[] the environmental impacts of
a specific development project‖ (CEQA Guidelines, § 15161), the CEQA
provisions governing tiered EIRs ―permit[] the environmental analysis for long-
term, multipart projects to be ‗tiered,‘ so that the broad overall impacts analyzed in
an EIR at the first-tier programmatic level need not be reassessed as each of the
project‘s subsequent, narrower phases is approved.‖ (Vineyard Area Citizens for
Responsible Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 429
(Vineyard Area Citizens); see CEQA Guidelines, § 15152 [― ‗Tiering‘ refers to
using the analysis of general matters contained in a broader EIR (such as one
prepared for a general plan or policy statement) with later EIRs and negative
declarations on narrower projects; incorporating by reference the general
25
discussions from the broader EIR; and concentrating the later EIR or negative
declaration solely on the issues specific to the later project.‖].)
―The standard for determining whether to engage in additional CEQA
review for subsequent projects under a tiered EIR is more relaxed than the
prohibition against additional review imposed by Public Resources Code section
21166 for project EIR‘s.‖ (Friends of Mammoth v. Town of Mammoth Lakes
Redevelopment Agency (2000) 82 Cal.App.4th 511, 528.) For project EIRs, of
course, a subsequent or supplemental impact report is required in the event there
are substantial changes to the project or its circumstances, or in the event of
material new and previously unavailable information. (Ibid., citing § 21166.) In
contrast, when a tiered EIR has been prepared, review of a subsequent project
proposal is more searching. If the subsequent project is consistent with the
program or plan for which the EIR was certified, then ―CEQA requires a lead
agency to prepare an initial study to determine if the later project may cause
significant environmental effects not examined in the first tier EIR.‖ (Ibid., citing
Pub. Resources Code, § 21094, subds. (a), (c).) ―If the subsequent project is not
consistent with the program or plan, it is treated as a new project and must be fully
analyzed in a project—or another tiered EIR if it may have a significant effect on
the environment.‖ (Friends of Mammoth, at pp. 528–529.)
In Sierra Club, on which plaintiff relies, a county approved a project
through a program EIR, a type of tiered EIR where the agency first analyzes
―general matters contained in a broader [initial] EIR . . . with later EIRs and
negative declarations [analyzing] narrow projects.‖ (CEQA Guidelines, § 15152,
subd. (a); see id., § 15168.) The Sierra Club court concluded that when a program
EIR is employed, if a later proposal is not ―either the same as or within the scope
of the project . . . described in the program EIR,‖ then review of the proposal is
not governed by section 21166‘s deferential substantial evidence standard. (Sierra
26
Club, supra, 6 Cal.App.4th at p. 1321, citing CEQA Guidelines, § 15168, subd.
(c)(5).) Instead, under Public Resources Code section 21094, the agency is
required to apply a more exacting standard to determine whether the later project
might cause significant environmental effects that were not fully examined in the
initial program EIR. (Sierra Club, at p. 1321; Pub. Resources Code, § 21094,
subd. (c).)
Unlike the program EIR at issue in Sierra Club, the 2006 initial study and
MND were not a tiered EIR. The District‘s 2006 initial study and MND did not
purport ―to defer analysis of certain details of later phases of long-term linked or
complex projects until those phases are up for approval.‖ (Vineyard Area Citizens,
supra, 40 Cal.4th at p. 431.) The District‘s initial environmental review
documents instead expressly concluded that ―all potential impacts‖ of the entire
project — including every building on the campus — had ―been mitigated to a
point where no significant impacts would occur, and there is no substantial
evidence the project would have a significant effect on the environment.‖ (San
Mateo County Community College Dist., Proposed Mitigated Negative
Declaration (Dec. 20, 2006) p. 2; see also San Mateo County Community College
Dist., Initial Study and Mitigated Negative Declaration for Facility Improvements
at College of San Mateo (Dec. 2006) p. 2 [describing the project and various
encompassed improvements, including those related to the Building 20 complex].)
To now entertain the argument that the 2006 MND should be treated as a tiered
EIR would disregard the substance of the District‘s conclusions in order to permit
plaintiff to raise an untimely challenge as to the adequacy of the MND, as well as
the District‘s decision to proceed by MND in the first place.
V.
Our conclusion today does not end this case. Plaintiff argues that even if
the proposed changes to the earlier-approved project do not render it a new project
27
altogether, the District abused its discretion in approving the Building 20 complex
demolition based on the 2006 MND and the 2011 addendum. Plaintiff also argues
that CEQA Guidelines sections 15162 through 15164 improperly authorize lead
agencies to approve certain proposed project modifications through the use of
addenda without public comment, rather than requiring the issuance of a
subsequent or supplemental EIR or negative declaration. The Court of Appeal did
not address these questions, nor are they fairly encompassed by the question on
which we granted review, and we accordingly express no view on them.
VI.
We reverse the judgment of the Court of Appeal and remand for further
proceedings consistent with this opinion.
KRUGER, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
28
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Friends of College of San Mateo Gardens v. San Mateo Co. Community College
__________________________________________________________________________________
Unpublished Opinion XXX NP opn. filed 9/26/13, 1st Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S214061
Date Filed: September 19, 2016
__________________________________________________________________________________
Court: Superior
County: San Mateo
Judge: Clifford Cretan
__________________________________________________________________________________
Counsel:
Eugene Whitlock, County Counsel; Remy Moose Manley, James G. Moose, Sabrina V. Teller and John T.
Wheat for Defendants and Appellants.
Cox, Castle & Nicholson, Andrew B. Sabey and Linda C. Klein for California Building Industry
Association, Building Industry Association of the Bay Area and California Business Properties Association
as Amici Curiae on behalf of Defendants and Appellants.
Michael W. Graf for High Sierra Rural Alliance as Amicus Curiae on behalf of Defendants and Appellants.
Downey Brand, Christian L. Marsh, Andrea P. Clark and Amanda M. Pearson for League of California
Cities, California State Association of Counties and Association of California Water Agencies as Amici
Curiae on behalf of Defendants and Appellants.
Charles F. Robinson, Kelly L. Drumm; Holland & Knight, Amanda Monchamp and Joanna Meldrum for
The Regents of the University of California as Amicus Curiae on behalf of Defendants and Appellants.
Brandt-Hawley Law Group and Susan Brandt-Hawley for Plaintiff and Respondent.
Chatten-Brown & Carstens, Jan Chatten-Brown , Amy Minteer and Josh Chatten-Brown for California
Preservation Foundation as Amicus Curiae on behalf of Plaintiff and Respondent.
Law Office of Sara Hedgpeth-Harris, Inc., and Sara Hedgpeth-Harris for Association of Irritated Residents,
Madera Oversight Coalition, Revive the San Joaquin and Sierra Club as Amici Curiae on behalf of Plaintiff
and Respondent.
Kamala D. Harris, Attorney General, Robert W. Byrne, Assistant Attorney General, Tracy L. Winsor and
Jeffrey P. Reusch, Deputy Attorneys General, for California Natural Resources Agency and Governor‘s
Office of Planning and Research as Amici Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Sabrina V. Teller
Remy Moose Manley
555 Capitol Mall, Suite 800
Sacramento, CA 95814
(916) 443-2745
Susan Brandt-Hawley
Brandt-Hawley Law Group
P.O. Box 1659
Glen Ellen, CA 95442
(707) 938-3900