Crane and building construction site against blue skyOn September xix, in a long-awaited and unanimous decision, the California Supreme Court issued its decision in Friends of the College of San Mateo Gardens v. San Mateo County Community College District.  The stance, authored by the Court's newest justice, Leondra Kruger, resolves a split among the Courts of Appeal regarding the proper procedures for addressing changes to a project that have already been subject to CEQA review.  The Court clarified that such changes are not field of study to an independent, "new projection" threshold test, and that an agency's decision that no EIR is required as a effect of proposed modifications to a previously-approved projection is field of study to review for substantial evidence.  The decision as well affirmed the validity of CEQA Guidelines section 15162 and its application of the principles of finality and subsequent review to projects originally approved with a negative declaration.

In this case, the San Mateo Community College District (Commune) had approved a programme to improve its campus at the College of San Mateo by renovating ten buildings and demolishing 16 others.  In compliance with the California Environmental Quality Act (CEQA), the Commune prepared and adopted a mitigated negative annunciation (MND) to address the impacts of its improvement plans.  Later, the District revised its plans for the College by deciding to annihilate ane building that had been set for renovation and to renovate two buildings that had been set up for demolition.  The District evaluated the possible environmental consequences of altering its plans for the iii buildings nether CEQA's provisions governing subsequent review of previously-approved projects (Pub. Res. Code § 21166 and CEQA Guidelines § 15162), and ultimately concluded that the changes were non then extensive every bit to crave preparation of a subsequent environmental impact report (EIR).  The Commune instead prepared an Annex to address the proposed revisions.  Petitioners challenged the District'due south decision, challenge that the changes constituted a "new" project and therefore the District could not rely on the prior MND.

A key question in this case was:  How are courts to review a public agency'south decision, under CEQA, to deviate from a previously-approved project?  It is well established that the deferential substantial evidence standard applies to a lead agency's decision to not require a subsequent EIR under Public Resources Code section 21166 when changes are proposed to a previously-approved project approved with an EIR.  (See Santa Teresa Citizens Action committee five. City of San Jose (2003) 114 Cal.App.fourth 689, 703; Mani Brothers Real Manor Grouping v. Urban center of Los Angeles (2007) 153 Cal.App.4th 1385, 1397-1401.)  The CEQA Guidelines apply these same principles and procedures to projects approved based on a negative proclamation.  (Guidelines § 15162(a); Abatti 5. Purple Irrigation District (2012) 205 Cal.App.4th 650, 668-671, 675.)  The substantial evidence standard is a crucial part of CEQA, equally information technology recognizes the important role public agencies play in administrative matters.  (California Native Plant Society five. City of Santa Cruz (2009) 177 Cal.App.4th 957, 985 [the "highly deferential" substantial evidence standard of review "flows from the fact that the agency has the discretion to resolve factual issues and to make policy decisions."].)  However, an earlier appellate determination, Relieve Our Neighborhood 5. Lishman (2006) 140 Cal.App.4th 1288, created a separate "new projection" test to outset determine, without whatsoever deference to the bureau, whether project changes even qualify for subsequent review analysis under Section 21166.

In an unpublished opinion, the Get-go Appellate District in San Mateo Gardens expressly followed Lishman and held that the question of whether a project is a "new" project is a question of law reviewed de novo past the courts without any deference to the pb agency's review of the factual circumstances of the particular projection.  It went on to find, without expressing whatsoever standards to guide the inquiry, that it was "clear" that the changes proposed past the District here constituted a "new projection birthday."  The conclusion posed noteworthy problems for public agencies: the court declined to defer to the Commune's factual determination that the changes were adequately covered past the prior MND and so failed to ready standards to guide application of the "new projection" test in the future.  This threatened to lead to arbitrary and alien results, preventing public officials from relying on previously-approved CEQA documents with confidence.

Despite the fact that the lower court's ruling was unpublished, the Supreme Court accepted review and ultimately reversed the Showtime Appellate Commune'south ruling.  Importantly, the Court made several welcome clarifications in the police force.  Get-go, the Supreme Court rejected the notion in Lishman and the opinion beneath that there is whatsoever separate "new project" test.  The threshold question should focus on the "upshot" of the change and not "abstract" characterizations of the project by the courts.  An bureau'due south determination of this threshold issue—of whether a project change qualifies for analysis under Section 21166 and Guidelines department 15162—is entitled to substantial deference by the courts:

Under the statutory scheme, the bureau's environmental review obligations depend on the effect of the proposed changes on the decisionmaking process, rather than on whatever abstract characterization of the project as 'new' or 'sometime.'  An agency that proposes project changes thus must determine whether the previous environmental document retains any relevance in lite of the proposed changes and, if so, whether major revisions to the previous ecology document are nevertheless required due to the interest of new, previously unstudied pregnant ecology impacts.  These are determinations for the agency to make in the kickoff instance, discipline to judicial review for substantial bear witness.

The Court's opinion repudiates Lishman, which had seriously undermined the ability of lead agencies to rely on the deferential standards and process for subsequent review under Section 21166 (and Guidelines section 15162) based on aspects of the changed project unrelated to environmental impacts (due east.grand., the identity of the project proponent and the preparer of project design plans).  The Courtroom noted as well its expectation that the "occasions when a court finds no substantial evidence to back up an agency'south decision to continue nether CEQA's subsequent review provisions volition be rare, and rightly and then; 'a courtroom should tread with extraordinary care' earlier reversing an bureau's decision . . . that its initial ecology document retains some relevance to the decisionmaking procedure."

2d, the Courtroom addressed the standards for reviewing project changes once information technology is determined that those changes properly autumn within the rubric of Section 21166.  Petitioner had argued that because the initial project in this case was approved under a negative declaration, the "fair statement" standard should apply.  In response, the Courtroom recited the standards for subsequent review nether Guidelines section 15162—"substantial evidence" that "substantial changes . . . require major revisions"—and emphasized that negative declarations "are entitled to a presumption of finality" once adopted and it would exist "absurd" to restart the entire process each fourth dimension a change is proposed in a projection.

3rd, while the issue did not feature prominently in the conference, petitioner'southward counsel and the Court at oral argument expressed involvement in whether Guidelines section 15162 validly applied the principles governing subsequent environmental review under Section 21166 to projects initially approved based on a negative declaration.  The Court clarified that Guidelines section 15162 is a "valid gap-filling measure out" adopted by the California Natural Resources Agency.

On the whole, the decision in San Mateo Gardens clarifies the standard of review of changes to previously-approved projects and preserves Guidelines section 15162 every bit a useful tool to avoid successive and unnecessary rounds of CEQA review.  For this reason, the conclusion will be extremely valuable to public agencies that must address proposed changes to CEQA projects.

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Downey Brand attorneys Christian Marsh, Andrea Clark, and Amanda Pearson represented the League of California Cities, California Land Association of Counties, and the Association of California Water Agencies as Amici Curiae in supporting the petition for review and on the merits in this case.