New Significance Standard For Greenhouse Gas Emissions Is Not New Information Triggering Supplemental CEQA Review

by Perkins Coie
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In an opinion published on March 28, 2013, a California court of appeal answered three questions under the California Environmental Quality Act that the published decisions have not yet addressed: 

  • What is the proper interpretation of the statutory exemption for housing projects that are consistent with a specific plan?
  • How should the CEQA guideline on further review following a program Environmental Impact Report be applied?
  • Do new air district guidelines setting significance thresholds for greenhouse gas emissions amount to “significant new information” that triggers the requirement for supplemental review? 

The court’s unambiguous answers to these questions provide public agencies and project sponsors with helpful guidance on a handful of important recurring issues.  Concerned Dublin Citizens v. City of Dublin (First Appellate District, No. A135790, 2013 WL 840083, ordered for publication Mar. 28, 2013). 

Residential Projects Consistent with an EIR-Based Specific Plan Are Exempt from CEQA. Government Code section 65457 provides a CEQA exemption for residential projects that are consistent with a specific plan, if an EIR was certified for the specific plan and supplemental review is not triggered under CEQA section 21166.  In the first published opinion to interpret section 65457, the court explained that a development comprising residences and “the usual incidents of residential units, such as yards, parks, or other uses authorized as permitted uses within a residential zoning district,” qualifies as a residential project under the statute.  The opinion also makes it clear that a residential project is not disqualified from the exemption simply because the applicable zoning might allow nonresidential uses, as long as the approved project is entirely residential. 

A Tiered EIR Need Not Follow a Program EIR.  As is often the case, the EIR for the specific plan was prepared as a program EIR under CEQA Guideline 15168.  The EIR indicated that further CEQA review would occur as projects to carry out the plan were considered.  The plaintiffs claimed that because the city was relying on a program EIR, a tiered EIR “must necessarily follow.”  In rejecting this claim, the court explained that “nothing in section 15168 or any other provision mandates a particular level of environmental review in evaluating later projects within the scope of a certified program EIR.”  The opinion thus confirms the basic principle that the level of environmental review required for a project within the scope of a program EIR will vary from case to case.  Further review can include no new environmental document, a finding that the project is exempt, the adoption of a negative declaration, or the preparation of an EIR, depending on the situation.

New Significance Thresholds Are Not New Information.  When a project is considered for approval based on a previously certified EIR, project opponents invariably claim that “significant new information” has come to light since the EIR was certified and that a supplemental EIR is required by CEQA section 21166.  Here, the plaintiffs pointed to the Bay Area Air Quality Management District’s newly adopted significance thresholds for greenhouse gas emissions in claiming that the project’s greenhouse gas emissions were a new significant impact requiring a supplemental EIR.  But the opinion makes it clear that a change in significance thresholds does not qualify as “significant new information,” as it does not show that the physical impact that the project will have on the environment has changed.  The court’s ruling on this issue should provide helpful guidance in a variety of situations where it is claimed that a supplemental CEQA review has been triggered because of new information about the classification of an impact, as opposed to new information about the nature or extent of the impact.

Read about this and other legal developments in Perkins Coie's California Land Use & Development Law Report.

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