Court Rejects CEQA Challenge to GHG and Water Analysis in Addendum to 1994 EIR
In Citizens for Responsible Equitable Environmental Development (CREED) v. City of San Diego, the Court upheld the use of an Addendum to a 1994 environmental impact report (EIR) to approved a revised Project. The Court rejected two challenges: (1) that the Addendum failed to include an analysis of the impacts of greenhouse gases which was not addressed in the 1994 EIR; and (2) that the City improperly incorporated and approved a water supply assessment (WSA) as part of the Addendum. The challenges were rejected on the merits as well as for the failure to exhaust administrative remedies. The Court ruled that once an EIR is certified, the standards for requiring supplemental environmental review under CEQA are narrow and the challenger has the burden of proof to show additional review is required.
On GHG impacts, the City argued that an analysis of GHG impacts was not required because it was not new information that could not have been known at the time the EIR was certified in 1994. The City presented evidence that the potential impacts of GHGs on climate change were known as early as the 1970s. The Court agreed that this impact did not meet the CEQA standard for supplemental environmental review. GHG impacts could have been raised in 1994 when the City considered the EIR. CEQA’s policies in favor of finality come into play once an EIR has been certified, and the presumption of completeness and adequacy favor the agency. The Court also rejected the argument because CREED did not exhaust their administrative remedies on the issue. The Court ruled that “general, unelaborated objections” to the environmental review contained in CREED’s letter to the City Council did not satisfy the exhaustion requirement. The fact that CREED submitted a DVD of materials discussing GHG impacts on climate that were not explained or discussed in the letter did not provide the agency with an adequate opportunity to understand and respond to the objection. The Court’s analysis of the exhaustion requirement may give agencies some basis for dealing with “late hits” or “document dumps” at hearings which is a common and frustrating tactic of project opponents.
On the WSA challenges, the Court ruled that the City properly incorporated the WSA into the Addendum. Also, although the record was not clear on whether the City had formally approved the WSA as part of the Addendum, the Court said that any doubts should be resolved in the agency’s favor since setting aside the action would clearly be an exercise of form over substance. The Court found that the City considered and approved the WSA as part of the Addendum and the public had notice of this procedure.
Overall, the case provides strong support for reliance on already certified EIRs in future project approvals despite the passage of time. It emphasizes that once an EIR is certified, challengers have a high burden to show that further environmental review is required. In particular, an addendum to an “old” EIRs without a GHG analysis may be upheld based on a finding that GHGs is not new information requiring further environmental review under CEQA. In addition, agencies may raise a failure to exhaust administrative remedies in court to generalized, “late hit” objections where the opponent does not provide specific information in a form that the agency has an adequate opportunity to evaluate and respond to before making a decision.