California State University (CSU) adopted a master plan to expand its San Diego campus. In its EIR, CSU identified mitigation measures to help alleviate traffic impacts. However, CSU ultimately rejected offsite traffic mitigation measures because it could not ensure that the Legislature would provide money to fund the mitigation. The City of San Diego (City) along with local association of governments and the metropolitan transit system, filed petitions for writ of mandate, claiming CSU did not comply with CEQA in preparing and certifying its final EIR for the master plan. The Superior Court denied the petition. On appeal to the Fourth District Court of Appeal, the Court reversed in part, and affirmed in part. Due to a lack of agreement with the City and the uncertainty of legislative funding, CSU ultimately concluded that the mitigation measures for offsite traffic impacts were significant yet unavoidable. The Court disagreed, explaining that CSU needed to inquire about other non-legislative funding to help pay for the offsite traffic mitigation. The Court also held that CSU should have discussed one or more possible modifications to the on-site project in order to reduce or avoid unmitigated impacts. Lastly, the Court held that the EIR failed to evaluate the impact on the City’s transit system. The Court explained that simply because CEQA’s Appendix G does not include transit does not mean that transit related impacts are exempt.
Where a feasible source of funding may be available for adopting “fair share” mitigation to address an impact of a project, a lead agency may not decline to adopt such “fair share” mitigation simply because it concludes one potential source of funding is not feasible.