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EIR Addendum to Previously Certified EIR Proper Where No New Significant Environmental Impacts Identified


An artist’s rendering of the Plaza de Panama, Balboa Park, San Diego, as it would appear at the conclusion of the project. (KCM Group)

In Save Our Heritage Organization v. City of San Diego (2018) 28 Cal.App.5th 656, the Fourth District Court of Appeal held CEQA Guidelines section 15164 (Section 15164) validly establishes an addendum process that is consistent with the CEQA statute. Specifically, Section 15164 filled in gaps in Public Resources Code section 21166 and accurately implemented CEQA.

In 2012, the City of San Diego (City) approved the Plaza de Panama Project in Balboa Park (Project) and its accompanying EIR in order to restore pedestrian and park uses to the area. Save Our Heritage Organisation (SOHO) appealed the City’s actions related to this Project multiple times on many grounds, winning some and losing on others.

In 2016, the City adopted an addendum to the project EIR addressing several project modifications. These included: (1) bridge modifications to meet CalTrans requirements; (2) adding and redesigning storm water basins; (3) adding parking lot ventilation; (4) making energy efficiency upgrades; (5) increasing the elevation of the excavated soils landfill; and (6) refining construction design. The most significant aspect was that the modified project would add 93 more parking spaces than in the original Project and EIR.

The City reviewed the modified Project’s potential environmental impacts to land use, historical resources, aesthetics, transportation, air quality, biological resources, energy, geologic conditions, greenhouse gas (GHG) emissions, health and safety, and hazardous materials. The City concluded that there were: (1) no substantial changes to the project requiring major revisions to the EIR because of new or substantially increased significant environmental effects; (2) no substantial changes in circumstances requiring major revisions to the EIR because of new or substantially increased significant environmental effects; and (3) no new, previously unknown or unknowable, information of substantial importance showing: (a) new or substantially more severe significant efforts than were discussed or shown in the EIR; (b) that previously infeasible mitigation measures/alternatives are now feasible and would substantially reduce significant efforts; or (c) that considerably different mitigation measures than analyzed in the EIR would substantially reduce significant effects. As such, the City approved the modifications with no additional EIR and on the basis of an addendum. SOHO filed suit. The trial court denied the petition. SOHO timely appealed.

Reviewing the agency’s action for abuse of discretion, the Court of Appeal affirmed the trial court’s holding. SOHO’s chief claim was that the addendum process, codified in Section 15164, was an invalid extension of the CEQA statute. Section 15164 provides, in pertinent part, “(a) The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in [Guideline] 15162 calling for preparation of a subsequent EIR have occurred. …(c) An addendum need not be circulated for public review but can be included in or attached to the final EIR…. (d) The decision-making body shall consider the addendum with the final EIR… prior to making a decision on the project. (e) A brief explanation of the decision not to prepare a subsequent EIR pursuant to [Guideline] 15162 should be included in an addendum to an EIR, the lead agency’s required findings on the project, or elsewhere in the record.  The explanation must be supported by substantial evidence.”  The Resources Agency’s discussion of Section 15164 states it was “designed to provide clear authority for an addendum as a way of making minor corrections in EIRs… without recirculating the EIR” and that “[Section 15164] provides an interpretation with a label and an explanation of the kind of document that does not need additional public review.”

The Court held that, under established case law, Section 15164, like any agency action, carries a presumption of validity and the challenging party has the burden of demonstrating its invalidity. Presented with the challenge, the Court is to consider “whether…[the regulation] is (1) consistent with and not in conflict with CEQA, and (2) reasonably necessary to effectuate the purpose of CEQA.” This analysis depends on whether the regulation is a quasi-legislative regulation or an interpretive regulation. The Court pointed out that no Supreme Court case has definitively said that the CEQA Guidelines are quasi-legislative or interpretive and declined to say so itself. Instead, the Court held it need not decide the issue in order to resolve the case because SOHO had not met their burden to establish Section 15164 was invalid.

While the Court agreed that CEQA does not expressly authorize the addendum process described in Section 15164, the Court stated that the process “fills a gap” in the CEQA process for projects with a previously certified EIR. Further, “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.” The Court held Section 15164 is consistent with and furthers the objectives of CEQA section 21166 by requiring an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review. “The addendum process reasonably implements section 21166’s objective of balancing the consideration of environmental consequences in public decision making with interests of finality and efficiency.” After EIR certification, “the interests of finality are favored over the policy of encouraging public comment.” As such, the EIR addendum regulation was in line with the spirit of CEQA and a natural extension of the statutory scheme.

To this point, the Court noted that the Section 15164 was first promulgated in 1983 and the Legislature has never modified CEQA to eliminate it, strongly indicating consistency with legislative intent.

Lastly, the Court easily dismissed SOHO’s argument that additional findings were required for the City to approve the addendum. Such findings were already made in adopting the original EIR and “an addendum is only proper where no new significant environmental impacts are discovered.” Here, where no new significant environmental impacts were discovered, an addendum was proper and findings were not necessary.

The Court affirmed the trial court judgement finding the EIR addendum valid.

Key Point:

An addendum to a previously certified EIR is proper where there no new significant environmental impacts are discovered.

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dateOctober 24th, 2018byby


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