Court Clarifies CEQA Rules Regarding Infeasibility and Deferral of Mitigation

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In 2005, the Board of Trustees of the California State University ("CSU") certified an environmental impact report ("EIR") and approved a project for the expansion of San Diego State University ("SDSU") to increase student enrollment from 25,000 students to 35,000 students by 2024. The 2005 EIR certification was challenged and in light of a California Supreme Court opinion that was issued during the pendency of the litigation affecting issues involved in the case, the trial court entered judgment against CSU. In 2007, CSU revised its master plan for expansion of SDSU and certified a new EIR and approved the revised project. CSU found that there were no feasible mitigation measures to reduce the project's off-site traffic impacts to below a level of significance because it might not obtain its "fair-share" mitigation funding from the Legislature and Governor. CSU also adopted a statement of overriding considerations concluding that the project's benefits outweighed its unavoidable significant environmental effects. The court determined, following the California Supreme Court decision in City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341 ("Marina"), that the CSU finding of infeasibility of off-site mitigation measures and its statement of overriding consolidations were both invalid. Mitigation of Significant Off-site Environmental Impacts.

The court held that it was an erroneous legal assumption to conclude that CSU could pay its "fair-share" of off-site mitigation only if the Legislature specifically appropriated such funding. The court held that the EIR should have addressed the availability of potential alternative sources of funding and compelling reasons why those sources could not, as a matter of law, be used to pay for mitigation. CSU did not cite any provision that barred it from using other funding sources for to help pay its "fair-share" of the costs.

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