Ground Control to Major Tom: Appeals Court Shuts Down CEQA Challenge to San Jose Airport Master Plan

by Stoel Rives LLP
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In Citizens Against Airport Pollution v. City of San Jose, No. H038781 (Cal. Ct. App. 6th Dist., June 6, 2014), Citizens Against Airport Pollution (“CAAP”) appealed the trial court’s ruling that the City of San Jose’s (“City”) approval of the eighth addendum to the 1997 Environmental Impact Report (“EIR”) for the Airport Master Plan did not require a supplemental EIR (“SEIR”) under the California Environmental Quality Act (“CEQA”).  The Sixth District Court of Appeal  affirmed the trial court’s decision and determined that the eighth addendum’s conclusion that changes to the Airport Master Plan would not cause any new significant environmental impacts was supported by substantial evidence.  

The City began updates to the 1980 Airport Master Plan for the San Jose International Airport in 1988.  The EIR for the updated Airport Master Plan was certified in 1997, a SEIR was certified in 2003, and eight successive addenda to the EIRs analyzed the environmental impacts of amendments to the Airport Master Plan.  The eighth (and most recent) amendment was approved in 2010, and was due largely to a decrease in projections for air travel and air cargo.  The three major changes analyzed in the eighth addendum were adjustment in size and location of planned air cargo facilities, addition of general aviation facilities, and modifications to the taxiways.

CAAP claimed that the City was required to prepare a SEIR instead of an addendum for the eighth amendment to the Airport Master Plan because the amendments were so significant as to constitute a new project as a matter of law, for which a SEIR, not an addendum, was required.  CAAP further claimed that the City should have prepared a SEIR because the changes to the Airport Master Plan would cause significant, unstudied impacts on “noise, greenhouse gas emissions, toxic air contaminants, and the burrowing owl habitat.”  (Slip Op. at p. 4.)  Finally, CAAP argued that the addendum did not comply with regulations adopted in 2010 that address how to analyze greenhouse gas and climate change impacts under CEQA.

The trial court held that the eighth amendment did not require an SEIR. CEQA prohibits the preparation of a subsequent or supplemental EIR, “unless (1) ‘[s]ubstantial changes’ are proposed in the project, requiring major revisions in the EIR; (2) substantial changes arise in the circumstances of the project’s undertaking, requiring ‘major revisions’ in the EIR; or (3) new information appears that was not known or available at the time the EIR was certified.” (Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 54-55 (quoting Pub. Resources Code § 21166); see also CEQA Guidelines § 15162.)[1]

The appellate court affirmed the trial court, finding that substantial evidence supported the City’s conclusion that changes in the Airport Master Plan would not result in “any new significant impacts on noise, air quality, and the burrowing owl habitat that are substantially different than those described in the 1997 EIR and the 2003 SEIR.” (Slip Op. at p. 15.) The appellate court also found that the City was not required to do an analysis of greenhouse gas emissions under CEQA Guidelines § 15064.4 (adopted in 2010) because that requirement was not part of the CEQA Guidelines when the 1997 EIR and 2003 SEIR were approved, and because the environmental impacts of greenhouse gas emissions have been known since the 1970’s. (Id. at pp. 20-21 [citing Citizens for Responsible Equitable Environmental Development v. City of San Diego(2011) 196 Cal.App.4th 515, 532].) Finally, the appellate court ruled without discussion that the Airport Master Plan amendments did not constitute a new project under CEQA because they were not “substantially different” from those in the 1997 EIR and 2003 SEIR. (Slip Op. at p. 15).[2]

[1]CAAP also contended that the City’s 1997 EIR was a “program” EIR under CEQA Guidelines § 15168, not a “project” EIR as the City claimed. The appellate court found it unnecessary to resolve the argument because Section 21166 applies with equal force to both program and project EIRs. (Slip Op. at 15.)

[2]The City also argued that CAAP was barred from bringing its suit because CAAP did not exhaust its administrative remedies and did not raise objections at any of several public meetings held before the City filed a notice of determination. (Id.at p. 11.) CAAP countered by arguing that it was not required to exhaust its administrative remedies because there was no “clearly defined administrative procedure to resolve concerns about the project.” (Id. [citing Santa Teresa Citizen Action Group v. City of San Jose(2003) 114 Cal.App.4th 689, 702].) The appellate court withheld judgment on whether CAAP was required to or did exhaust its administrative remedies, however, because of its ruling on the merits.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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