Certain Residential Developments Exempt from CEQA Review: Greenhouse Gas Emission Issues Do Not Constitute New Information

by Allen Matkins

The recent California appellate court decision in Concerned Dublin Citizens v. City of Dublin, Cal: Court of Appeal, 1st Appellate Dist., 3rd Div. 2013, upheld a City's affirmation that residential developments are exempt from CEQA review if the development is consistent with, and implemented pursuant to, an approved specific plan for which an environmental impact report (EIR) was certified. In addition, the fact that the certified EIR did not specifically address climate change or any of the new laws and regulations related to climate change or greenhouse gas emissions that have been implemented since the completion of the EIR, does not trigger the need for a supplemental EIR.

As new residential development picks up steam in California, many of the new projects will be implementing specific plans approved five or more years ago. A number of new laws and regulations relating to climate change, including AB 32 and SB 375, as well as greenhouse emission significance thresholds, have been adopted and could be viewed by some as requiring supplemental CEQA documentation. This decision reaffirms that these issues should not trigger the need for any such supplemental CEQA documentation.


In 2002, the City of Dublin approved a Specific Plan ("SP") for a transit center and certified the accompanying EIR. The SP included a Phase 1 Development Plan that established permitted land uses. One of the parcels within that Development Plan was designated for a maximum of 405 high density units and up to 25.000 square feet of retail space. In 2011, a multi-family developer submitted a site plan consisting of 505 residential units and no retail space. The City approved the proposed project and found that it was exempt from CEQA pursuant to Government Code Section 65457. Section 65457 provides that, with one exception which is discussed below, any residential development project that is undertaken to implement, and is consistent with, a specific plan for which an EIR has been certified after January 1, 1980, is exempt from the requirements of CEQA. Project opponents filed a legal challenge under CEQA.

Key Takeaways For Residential Developers

In its holding, the appellate court stated a number of key takeaways that should be remembered as residential development starts to make a comeback in California.

  1. Most residential projects, implemented consistent with an EIR-based specific plan, are exempt from CEQA, regardless of possible environmental impacts of the project.
  2. The standard for judicial review of an agency decision applying the residential exemption is substantial evidence rather than the lesser fair argument standard.
  3. This residential exemption applies "unless and until a Supplemental EIR for the specific plan is prepared and certified."
  4. Those events that would trigger the need for a Supplemental EIR for a specific plan are: (i) substantial changes in the project which would require major revisions of the EIR; (ii) substantial changes with respect to the circumstances under which the project is being undertaken which would require major revisions in the EIR; and (iii) new information, which was not known and could not have been known at the time the EIR was certified as complete, becomes available any of which result in new significant environmental effects or a substantial increase in the severity of previously identified significant effects.
  5. The adoption of new thresholds of significance for potential climate change impacts related to the release of Greenhouse Gas emissions do not constitute "new information" requiring additional environmental review as information about the potential impacts of greenhouse gas submissions was widely known as early as 1992.

Written by:

Allen Matkins

Allen Matkins on:

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