December 29th, 2016

By: Chris Butcher

In The Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency 2016 Cal. App. LEXIS ___ (originally filed as an unpublished decision and later certified for publication), the First Appellate District upheld the trial court and rejected Petitioners’ argument that further CEQA review was required before the San Francisco Municipal Transportation Agency (Muni) approved construction of a 900-foot segment of light rail track needed to complete a partially constructed loop on the T-Line.

In 1998, an EIR was prepared to analyze the impacts of the Third Street Light Rail Project. The EIR divided the project into two phases: the Initial Operating Segment, and a New Central Subway. The EIR analyzed the Initial Operating Segment at the project-level and the New Central Subway at the program-level.  The bulk of the Initial Operating Segment was completed by 2003, however, the loop connection at issue in this litigation was deferred until demand warranted its completion.  In 2012, Muni pursued federal grant funding to complete the loop and, as part of that process, it considered whether further CEQA review was required before the loop project was approved. Muni and the San Francisco Planning Department (Department) agreed that the 1998 EIR adequately analyzed impacts of the loop and that no further CEQA review was required.  However, further NEPA review was conducted and a “Finding of No Significant Impact” was issued by the Federal Transit Administration. Once again, in 2014, when Muni was prepared to move forward with the loop project, Muni and the Department considered whether any changed circumstances required further CEQA review.  They again concluded no further review was required pursuant to CEQA Guidelines sections 15162-15164. Thereafter, Muni approved construction of the missing 900-foot link in the T-Line loop.

Petitioners filed suit alleging that the loop project was not covered by the 1998 EIR and that, even if it was, Muni was required to conduct supplemental review pursuant to Public Resources Code section 21166. After holding that both of Petitioners’ challenges are subject to the substantial evidence, and not fair argument, standard of review, the Court quickly rejected Petitioners’ arguments.

Citing extensively to the 1998 EIR, the Court held that substantial evidence in the record demonstrates that the loop project was part of the project described in the 1998 EIR. The Court also held that the loop was part of the Initial Operating Segment as defined in the 1998 EIR and not the New Central Subway. Thus, the loop was analyzed at the project-level in the 1998 EIR.  The Court also noted that, to the extent Petitioners desired to challenge the adequacy of the analysis in the 1998 EIR, that challenge is untimely and should have been advanced when the 1998 EIR was adopted.

Next, the Court held that Muni’s and the Department’s 2012 and 2014 determinations, and supporting evidence, that no further review was required pursuant to Public Resources Code section 21166 constituted substantial evidence supporting that conclusion. Furthermore, the Court stated that the 2013 NEPA analysis constituted additional substantial evidence supporting Muni’s decision. The Court was also unpersuaded by Petitioners’ counterarguments noting that “mere delay in completing construction [does not] constitute[] a substantial change in a project under section 21166” and “changes in a neighborhood do not constitute a change in circumstances that requires a new EIR under section 21166, unless the changes require ‘major revisions’ to an existing EIR.”  The neighborhood changes at issue did not require ‘major revisions’ because the 1998 EIR expressly contemplated and analyzed cumulative impacts associated with potential future changes to the neighborhood.

Finally, the Court rejected Petitioners’ claim that Muni failed to comply with required procedures in deciding no further CEQA review was required. The Court stated that “CEQA does not set forth any particular procedure to support an agency’s decision that a new EIR is not required.” Specifically, “CEQA does not require an initial study or public hearing” before an agency concludes no further CEQA review is required pursuant to Public Resources Code section 21166.

Key Point:

After a lead agency prepares an EIR for a project, the substantial evidence standard of review is applicable both the lead agency’s decision whether (1) future approvals are within the scope of the previously approved project, and (2) additional CEQA review is required pursuant to Public Resources Code section 21166.