FRIENDS OF THE COLLEGE OF SAN MATEO GARDENS, Plaintiff and Respondent, v. SAN MATEO COUNTY COMMUNITY COLLEGE DISTRICT et al., Defendants and Appellants.
No. S214061
Supreme Court of California
Sept. 19, 2016.
1 Cal. 5th 937
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.
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.
Michael W. Graf for High Sierra Rural Alliance as Amicus 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.
OPINION
KRUGER, J.—To ensure that governmental agencies and the public are adequately informed about the environmental impact of public decisions, the California Environmental Quality Act (CEQA) (
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
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 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 [118 Cal.Rptr. 34, 529 P.2d 66] (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.” (
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
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 changes” to the project‘s circumstances that will require major revisions to the EIR, or (3) new information becomes available. (
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,
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 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 MND 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
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 MND. 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 [45 Cal.Rptr.3d 306] (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 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
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
Save Our Neighborhood was criticized in Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, 1400 [64 Cal.Rptr.3d 79] (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 cultural 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
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
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 [8 Cal.Rptr.2d 473] (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
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 in finality and efficiency. (See Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1074 [230 Cal.Rptr. 413] (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
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 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.”
In the absence of any benchmark for measuring the newness of a given project, the new project test plaintiff urges would inevitably invite arbitrary 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
It follows that, for purposes of determining whether an agency may proceed under CEQA‘s subsequent review provisions, the question is not whether an 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
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 [84 Cal.Rptr.3d 614, 194 P.3d 344]; Muzzy Ranch Co. v. Solano County Airport Land Use Com. (2007) 41 Cal.4th 372, 382 [60 Cal.Rptr.3d 247, 160 P.3d 116]; Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779, 795–798 [187 Cal.Rptr. 398, 654 P.2d 168].) 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
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 [76 Cal.Rptr.3d 428].)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
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
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 [196 Cal.Rptr.3d 94, 362 P.3d 792]; see
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
Plaintiff directs our attention to the Legislature‘s 1977 amendments to CEQA in Assembly Bill No. 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
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 negative declaration is entitled to the same degree of finality as a decision to proceed by EIR. (
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
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
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
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 “substantial evidence“].) The distinction
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
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 [53 Cal.Rptr.3d 821, 150 P.3d 709] (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 discussions from the broader EIR; and concentrating the later EIR or negative declaration solely on the issues specific to the later project.“].)
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 Club, supra, 6 Cal.App.4th at p. 1321, citing CEQA Guidelines, § 15168, subd. (c)(5).) Instead, under
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
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 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.
Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Corrigan, J., Liu, J., and Cuéllar, J., concurred.