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My Project Changed—Is My EIR Still Valid: A New California Supreme Court Case Provides Guidance

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by Mark D. Johnson

Change is inevitable.  Many times between project approval and project construction fluctuations in market conditions, financing terms or other factors mandate project changes.  Do the changes require a further or modified California Environmental Quality Act (“CEQA”) analysis?  A new California Supreme Court case, Friends of the College of San Mateo Gardens v. San Mateo Community College District (9/19/16) 2016 WL 4978435, helps answer this question.

In Friends, the lead agency, a community college district (“District”), approved and adopted a mitigated negative declaration (“MND”) for an improvement plan that called for demolishing certain buildings and renovating others.  Years later, the plan changed to call for demolishing one building that was originally to be renovated and renovating two buildings that were originally slated for demolition.  The District concluded that these changes did not require a subsequent or supplemental environmental impact report (“EIR”) and approved the new plan through an addendum to the MND.

The trial court invalidated the District’s approval of the revised plan holding that further CEQA review was required.  The Court of Appeal affirmed holding that “as a matter of law” the changed project was a “new project,” not a project modification and, therefore, the District was required to perform an initial study to determine if an EIR was needed.

The California Supreme Court reversed the Court of Appeal stating that when changes are proposed to an 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.”  The required review depends on the effect of the changes and not whether the revised project can be randomly characterized as a “new” or “old” project.  The reviewing agency must determine if the existing or previous environmental documents retain any relevance in light of the project changes and, if so, whether revisions are required to “due to the involvement of new, previously unstudied significant environmental impacts.”

Importantly, the California Supreme Court stated that the determination of whether revisions are required to the environmental documents due to proposed project changes is for the reviewing agency to make in the “first instance, subject to judicial review for substantial evidence.”  This decision restricts a court’s ability to overturn a reviewing agency determination regarding the need for modifications to the environmental documents for an approved project.  It also provides project developers with greater certainty that an agency’s determination in this regard will withstand challenge because it will be given deference and cannot be overturned by a court substituting its opinion or views in place of the agency’s.