Whatever the EIR’s Name, CEQA’s Rules For Substantive Content and Subsequent Review Remain The Same: First District Upholds EIR for Treasure Island Redevelopment Project

by Miller Starr Regalia
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On July 7, 2014, the First District Court of Appeal filed its published opinion affirming the trial court’s judgment upholding the EIR for the Treasure Island/Yerba Buena Island Project. Citizens for a Sustainable Treasure Island v. City and County of San Francisco, et al. (Treasure Island Community Development LLC, RPI), __ Cal. App. 4th __, 2014 WL 3057986 (1st Dist. 2014).

The Project required amendments of the City of San Francisco’s general plan and planning code maps and texts to achieve an ambitious redevelopment and reuse of the former Naval Station Treasure Island and adjacent Yerba Buena Island, to be implemented over a 15-20 year period. The Project contemplates a new mixed-use community with 8,000 residential units (with at least 25% designated affordable); up to 140,000 square feet of commercial and retail space and 100,000 square feet of office space; 500 hotel rooms; 300 acres of parks, playgrounds and public open space; restoration and reuse of historic buildings; and a ferry terminal and intermodal transit hub.

Plaintiff CSTI’s main argument on appeal was that the City committed prejudicial error by preparing a “project EIR” rather than a “program EIR.” The Court of Appeal essentially rejected this argument as mere semantics, observing that “many different names have been applied to EIRs” and “[f]or this reason, courts strive to avoid attaching too much significance to titles in ascertaining whether a legally adequate EIR has been prepared for a particular project.” It stressed that, regardless of the label given, all EIRs must cover the same general content; it pointed out that “[t]he level of specificity of an EIR is determined by the nature of the project and the “rule of reason”… rather than any semantic label accorded to the EIR.’” According to the Court, Article 9 of the CEQA Guidelines governs content requirements for all EIRs, and plaintiff CSTI “fail[ed] to cite any authority supporting its argument that the objective of creating a legally adequate EIR for this project could only be accomplished by the use of a program EIR.  No such authority exists.”

Moreover, the Court rejected – as “based on a flawed legal premise” — CSTI’s argument that City prepared the EIR as a project EIR to circumvent the fair argument standard that would otherwise be applied to a program EIR when evaluating the need for subsequent environmental review. Contrary to CSTI’s incorrect assumption, the Court held that “[f]or purposes of the standard of review, the same substantial evidence standard applies to subsequent environmental review for a project reviewed in a program EIR or a project EIR.” The Court explained that: “The obligation to conduct supplemental review under [Public Resources Code] section 21166 applies regardless of whether the project under consideration has undergone previous, project-specific environmental review, or is being carried out under a plan for which the agency has previously certified a program EIR.” If a program EIR is sufficiently comprehensive, further environmental review for later activities within the program that have been adequately analyzed will be unnecessary; in any event, however, “the duty to perform supplemental review under [the terms of] section 21166… exists regardless of whether the EIR was prepared as a project EIR, or as a program EIR.”

The Court emphasized the key CEQA principle that “the level of detail in an EIR is driven by the nature of the project, not the label attached”; in other words, “[t]he degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR[.]” (Citing 14 Cal. Code Regs, §15146.) The ultimate question in assessing an EIR’s sufficiency is thus not whether it is “project-level” or “program-level” but whether it provides decision makers with sufficient analysis to intelligently consider the project’s environmental consequences.  Here, the “project” EIR met that standard.

The Court also rejected CSTI’s argument that the EIR’s project description was “unstable and erratic,” ruling that “the EIR made an extensive effort to provide meaningful information about the project, while providing flexibility needed to respond to changing conditions and unforeseen events that could possibly impact the project’s final design.” Further, the project included and the EIR described “the creation of a special use district (SUD), which establishes zoning districts throughout the project area, identifies permitted uses, and provides detailed standards applicable to development within each district.” The Project’s zoning and implementing documents, in fact, provided “concrete information regarding building heights, mass, bulk, and design specifications” that CSTI claimed was lacking. While, as a practical matter, at this stage in the development process there were many project features subject to future revision and likely supplemental environmental review before the final Project design was fully implemented, the Court found “the EIR cannot be faulted for not providing detail that, due to the nature of the Project, simply does not now exist.” Merely because “all hypothetical details” were not resolved and the EIR did “not anticipate every permutation or analyze every possibility” did not render its project description misleading, inaccurate or vague; rather, the EIR’s 84-page “Project Description” chapter accurately described the Project and “remained accurate, stable, and finite throughout the EIR process.”

Interestingly, the Court noted that “[i]t appears to be an open question whether the adequacy of a project’s description is analyzed as a question of law or an issue of fact.” While it observed that a leading treatise classifies it in the latter category, the Court stated it need not decide the correct standard because the EIR’s Project Description here met both standards by providing sufficient information to allow environmental analysis and also setting forth the Project’s “main features.”

Finally, the Court upheld the adequacy of the EIR’s analyses of the presence and remediation of hazardous substances, and of the Project’s potential impacts on historic resources, and its conformity with the “Tidelands Trust” that applied to some areas of the Project under common law and the Treasure Island Conversion Act of 1997. It also upheld, as supported by substantial evidence, the City’s decision not to recirculate the EIR based on certain modifications made in the final EIR to address concerns expressed by the Coast Guard during the public comment period regarding potential impacts on its homeland security functions.

The opinion’s main teaching seems to be that – regardless of the label attached to the EIR – the content and subsequent review requirements prescribed by CEQA and its Guidelines remain the same, and the level of detail required in the EIR’s analysis need only correspond to the level of detail known about the Project being approved. This holding conforms with a common sense application of CEQA and properly eschews the elevation of “form over substance” in assessing the adequacy of EIRs.

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Miller Starr Regalia
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