In the recently published decision in City of Irvine v. County of Orange the Court of Appeal held that the county’s approval of an application for state funding to expand a jail facility was not a project under the California Environmental Quality Act (CEQA). In doing so, the court applied and clarified the standard articulated in Save Tara v. City of West Hollywood and Cedar Fair, L.P. v. City of Santa Clara for determining whether a public agency has committed itself to a project, and also discussed how that standard should be applied in future cases.

In 1998, the county certified an environmental impact report for the expansion of a jail facility, but ultimately decided not to proceed. In 2011, the county approved and submitted an application for state funding for the expansion under AB 900, which provides funding to counties for jail construction and expansion projects. The county’s application made clear that it would not proceed with the expansion without conducting CEQA review, even if funding was awarded. The City of Irvine sued, arguing that the approval of the application was a project under CEQA.

The court rejected Irvine’s claim that the application gave “impetus” to the expansion of the jail facility under State CEQA Guidelines section 15004(b)(2)(B). Instead, the court found that, under section 15004(b)(2)(B) and Save Tara, a public agency’s action is not a CEQA approval unless the action precludes or forecloses alternatives or mitigation measures that CEQA would otherwise require the agency to consider.

The court also rejected the county’s assertion that Save Tara and Cedar Fair focused on whether there was a “binding agreement to develop a particular project,” noting that the word “binding” appears nowhere in the holdings, nor in CEQA or the State CEQA Guidelines. The court held that “[t]he critical question is whether the totality of the circumstances surrounding the public agency’s action has effectively committed the agency to the project even though it has not provided all approvals or entitlements necessary to proceed. A binding agreement certainly can be an important factor, but it is not an essential requirement for a project approval under CEQA.”

Ultimately, the court concluded that the county’s application did not trigger CEQA review because, even if funding was awarded, the county was not required to proceed with the expansion.