The Sutter court looked for guidance to the state law governing the requirements for subsequent and supplemental EIR's as found in section and its implementing regulations, and to federal cases applying the National Environmental Protection Act NEPA , which provides that supplements to environmental impact statements the federal equivalent of EIR's must be circulated.
Under federal law, a supplement may be prepared to either a draft or a final environmental impact statement. The standards governing the preparation and procedures for such supplements are the same regardless of whether the environmental impact statement is in draft or final form. Federal law also provides that "[i]f a draft statement is so inadequate as to preclude meaningful analysis, the agency shall prepare and circulate a revised draft of the appropriate portion.
Reasoning by analogy, the Sutter court determined that recirculation for public comment would be an appropriate procedure to follow in the situation where "significant new information" is added to an EIR after the close of the public comment period, but prior to certification.
Sutter, supra, Cal. The Sutter court further explained that recirculation should not be required where the new information added to the EIR "merely clarifies or amplifies [citations] or makes insignificant modifications in [citation] an adequate EIR On the other hand, where " 'substantial changes' in the EIR are made, recirculation is required.
By adopting this standard, the Sutter court explicitly rejected the proposition that the addition of any new information triggers recirculation. A contrary conclusion indeed would have been at odds with the statutory scheme, which did not and does not generally require that a final EIR be recirculated even though that document by definition contains information not found in the draft EIR in the form of public comments and responses thereto.
Unlike a final EIR, a federal final environmental impact statement must be circulated for public review at least 30 days prior to project approval. Because of this difference in the state and federal statutory schemes, federal authority is of limited value in interpreting section See Wildlife Alive v.
Chickering 18 Cal. In determining when recirculation prior to certification should be required, the Sutter court used CEQA terms with specific meanings. As previously mentioned, the Sutter court looked for guidance to section and its implementing guidelines. Section governs the analogous situation of preparation of a subsequent or supplemental EIR after a final EIR is certified.
The terms "significant," "new information," and "substantial change" are all found in section or its implementing guidelines. For these reasons, we believe it is appropriate to look to these sources for guidance in interpreting section The reasons that public comment in the CEQA review process is initially solicited also help guide us in our interpretation of section The primary reason for soliciting comments from interested parties is to allow the lead agency to identify, at the earliest possible time, the potential significant adverse effects of the project and alternatives and mitigation measures that would substantially reduce these effects.
With these sources of guidance in mind, we conclude that the addition of new information to an EIR after the close of the public comment period is not "significant" unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect including a feasible project alternative that the project's proponents have declined to implement.
Resources Agency, Dig. As recognized by the Sutter court, recirculation is not required where the new information added to the EIR "merely clarifies or amplifies [citations] or makes insignificant modifications in [citation] an adequate EIR.
On the other hand, recirculation is required, for example, when the new information added to an EIR discloses: 1 a new substantial environmental impact resulting from the project or from a new mitigation measure proposed to be implemented cf.
We acknowledge that this list of examples is generally consistent with proposed Guidelines, section With the addition of the fourth category of "triggering information" to the list, we recognize that "significance" for purposes of section The different circumstances governed by these statutes mandate this conclusion. In the case of a certified EIR, which is a prerequisite for application of section , section This presumption acts to preclude reopening of the CEQA process even if the initial EIR is discovered to have been fundamentally inaccurate and misleading in the description of a significant effect or the severity of its consequences.
After certification, the interests of finality are favored over the policy of encouraging public comment. By way of contrast, section See State Bar Rep. Therefore, new information that demonstrates that an EIR commented upon by the public was so fundamentally and basically inadequate or conclusory in nature that public comment was in effect meaningless triggers recirculation under section See, e.
Contrary to the arguments of the Association, the holding of Sutter is consistent with the views we express here. Although the Sutter opinion does not clearly explain the extent of the changes made between the draft EIR and the final EIR at issue in that case, it is apparent that the court and the agency viewed the draft EIR as fundamentally and basically inadequate in many respects.
Furthermore, our understanding of the term "significant new information" is reflected explicitly or implicitly in other holdings of our lower courts. For example, in Marin Mun.
Water Dist. KG Land California Corp. The draft EIR disclosed that the duration of the proposed moratorium was indefinite and had considered the impacts of a moratorium of at least five to six years in duration. The new information merely served to clarify an environmental effect that was adequately discussed in the draft EIR.
In Sierra Club v. Gilroy City Council Cal. In response to public comment, however, the lead agency delayed approval of the project and commissioned a study.
A "preliminary" final EIR was prepared relying upon the study and was made available for public and agency comment before the project was certified. The new information, the presence of the tiger salamander, demonstrated that the draft EIR had not addressed a potentially substantial adverse environmental effect. Therefore, revision and recirculation were required and were voluntarily undertaken by the agency.
Similarly, a "woefully inadequate" draft EIR was found to have deprived the public of its opportunity to comment upon the resumption of sport hunting of mountain lions. Mountain Lion Coalition v. In defiance of a previously issued writ, the agency failed to address in other than conclusory fashion many areas relating to the cumulative impacts of the proposed hunting.
Discovery that a project encroached upon wetlands, when the text of the draft EIR indicated that the wetlands area would remain undeveloped, was a substantial change in circumstances requiring revision and recirculation of the EIR. The failure to do so "deprived the public, who relied upon the EIR's representations, of meaningful participation regarding the issue of wetlands degradation," a significant adverse effect.
Mira Monte Homeowners Assn. County of Ventura Cal. Finally, the opportunity for additional public comment was also required where an uncirculated EIR disclosed for the first time that, for mitigation purposes, a street would be extended through a ridge line resulting in a previously unidentified adverse visual impact.
Stevens v. City of Glendale Cal. By codifying the "significant new information" language of Sutter, supra, Cal. It is also clear, however, that by doing so the Legislature did not intend to promote endless rounds of revision and recirculation of EIR's. Recirculation was intended to be an exception, rather than the general rule.
Significantly, at the time section In our interpretation of section In , the Legislature enacted legislation to require CEQA review to be integrated with, and run concurrently with, other planning processes s , to define the purpose and requirements of an EIR ss , , to define critical terms used in CEQA ss In , the Legislature enacted the California Permit Streamlining Act, which required that both state and federal agencies establish time limits to require the completion of an EIR within one year ss In , in the same legislation that enacted section It remains to be considered whether the trial court erred in not requiring recirculation.
In reviewing an agency's determination, finding or decision under CEQA, a court must determine whether the agency prejudicially abused its discretion.
The Guidelines further define "substantial evidence" as "enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached. The Regents contend that the substantial evidence standard of review is mandated in this case by these authorities.
By contrast, the Association advances several independent arguments, two of which are premised directly upon the language of section We agree with the Regents that the appropriate standard is the substantial evidence standard.
The parties agree that the present action is one of traditional mandamus subject to the standard of review set forth in section As we have previously observed, the standard of review is essentially the same whether the action is one of traditional mandamus governed by section To counter our determination, the Association contends that, if a procedural violation of CEQA is shown, the substantial evidence prong of the statutory standard of review does not come into play.
While the Association's contention may have merit in the abstract, it does not apply to the facts of the present case. The Association first argues that the Regents failed to proceed as required by law, because they did not set forth express findings denying the Association's request that the final EIR be recirculated.
We are not persuaded by the Association's claim. No Oil, Inc. City of Los Angeles, supra, 13 Cal. Furthermore, we are not faced in this case with an administrative record that is silent on the question of whether the recirculation request was considered by the decision maker.
City of San Jose v. Great Oaks Water Co. The final EIR contained a response to the request for recirculation. The response stated that, since the final EIR "[did] not include significant new information about environmental impacts and did not require a fundamental reorganization of the [draft EIR], there [was] no need to recirculate the [f]inal EIR for an additional public review period.
By doing so, the Regents necessarily concluded that the final EIR did not contain significant new information requiring additional public comment. While express findings are preferable for the reason that they make the task of the reviewing court easier, there is no need in this case to remand for the Regents to clarify or expressly state their findings.
The test applied by the Regents' staff, and presumably by the Regents, is generally in accord with the interpretation of section Because the standard applied was not contrary to law, there was no abuse of discretion on this ground. Such an argument begs the question. The Association's position ignores the statutory mandate that only the addition of significant new information triggers recirculation.
Barring unusual circumstances not present here, the agency necessarily must decide whether the information meets this statutory requirement. Rural Landowners Assn. City Council Cal. In that case, the procedural violation was admitted: The agency failed to submit the draft EIR to the state clearinghouse as required by the Guidelines before the project was approved.
County of Ventura, supra, Cal. In that case the encroachment on wetlands containing rare plant species was admitted and the Guidelines defined destruction of rare plants as significant. Guidelines, appen. Thus, substantial evidence could not support the agency's decision not to recirculate the final EIR or prepare a subsequent EIR and there was no need to consider the standard of review. The Association next argues that, if the substantial evidence prong of the standard of review is applicable, then in deciding whether to recirculate the final EIR under section However, section commands that an EIR must be prepared whenever a project "may have a significant effect on the environment.
In No Oil, Inc. See also Friends of "B" Street v. City of Hayward Cal. Rather, the "fair argument" test was derived from an interpretation of the language of, and policies underlying, section itself. For this reason, the "fair argument" test has been applied only to the decision whether to prepare an original EIR or a negative declaration.
City of Petaluma Cal. The Association has advanced no persuasive authority or reasons for taking this test out of the context of the statutory language of section and applying it to an agency's decision under section Recently enacted amendments to sections and We observe that proposed Guidelines section We do not agree that this is the appropriate standard. We conclude that the substantial evidence standard set forth in section County of Los Angeles 11 Cal. It is this standard of review that we apply to the Regents' determination that the new information in the final EIR was not "significant" pursuant to section While we apply the standard of review specified by the Legislature, we note that the analogous federal standard is also a deferential one.
The federal Supreme Court has held that the arbitrary and capricious standard of review applies to an agency's decision not to prepare a supplemental environmental impact statement under NEPA. Marsh v. Oregon Natural Resources Council U.
The Association contends recirculation of the final EIR was required because the following information added to it was "significant new information" within the meaning of section After reviewing each of these categories of "new information" in turn, we conclude that substantial evidence supports the Regents' decision not to recirculate the final EIR for public comment. While giving lip service to applying the substantial evidence standard, the concurring and dissenting opinion in effect discards it, fails to give proper weight to the public agency's decision, and proceeds to reweigh the evidence, engaging in rank speculation and failing to "resolve reasonable doubts in favor of the administrative finding and decision.
By so doing, the concurring and dissenting opinion abandons the proper role of an appellate court. Mechanical Noise Studies In analyzing the effects of noise from equipment to be installed at the project, the EIR essentially employed the same methodology that was approved by this court in Laurel Heights I, supra, 47 Cal. The EIR adopts specific performance standards for allowable noise generation.
The EIR then represents that the university will implement whatever noise abatement design and equipment modifications are necessary to reduce project noise levels below the performance standards. In certifying the EIR, the Regents adopted this mitigation measure along with procedures to implement and monitor it and found that these actions would reduce the noise impact to a level of insignificance.
Substantial evidence in the record, however, supports the Regents' conclusion that no significant adverse impact on the environment will result if the presently adopted performance standards are met.
The Association nevertheless argues that recirculation was required because, in response to public comment, the final EIR elaborates on the issue of mechanical noise by providing additional noise data.
Other newly included information addresses the validity of the representation in the draft EIR that mechanical noise can be mitigated to an insignificant level within the performance standards adopted in the EIR. The Association also points out that a discrepancy exists between the description of the effluent rates from the exhaust fans found in one of the noise studies and the project plans.
The noise study is premised upon a lesser effluent rate. This discrepancy is insignificant in light of the Regents' pledge to mitigate project noise to insignificant levels. The Association contends that new data added to the appendix of the final EIR demonstrate that nighttime background noise levels will exceed one of the EIR's two voluntary standards of significance, i.
The new data are based upon the "L" measurement scale. The Regents persuasively point out that the 5 dBA standard of significance was adopted and applied in the draft EIR according to the "Ldn" measurement scale. Data in both the draft and final EIR's demonstrate that noise, measured according to that standard, will not increase by more that 0. Furthermore, the Regents assert that the "L" scale of measurement, which is used to measure the very quietest moments, is not appropriately used to determine compliance with the 5 dBA voluntary standard.
The conclusions submitted by the Regents' noise expert based upon the data added to the final EIR supports this contention. Regardless of what conclusions may be appropriately drawn from these studies, we find that substantial evidence supports the Regents' decision that the additional data do not constitute "significant new information.
The basis of the conclusion in both the draft and final EIR's that mechanical noise effects would be insignificant is the representation that any effects will be mitigated to insignificance by appropriate choices of equipment and installation measures. The new studies do not alter this analysis in any way.
Substantial evidence thus supports the Regents' conclusion that additional public comment is not required. Holy Cross Wilderness Fund v. Madigan 10th Cir. Cumulative Toxic Air Emissions Studies In considering the cumulative effect of project toxic emissions together with emissions attributable to other anticipated projects in the Laurel Heights area, the draft EIR states that "there are no accepted methodologies or standards by which to quantitatively measure the cumulative toxic emission impacts of all potential sources of toxic air emissions in the Laurel Heights vicinity Nevertheless, in response to public comments, and "in an effort to provide as much information as possible," the final EIR discusses the health risks from background toxic air contaminant levels and presents two possible approaches to assessing impacts of cumulative toxic air emissions, based upon an experimental study.
The study concludes that the "maximum estimated cumulative cancer risk increase would be below the project significance standard," and that "no non-carcinogenic health effects are expected to occur.
To the extent the study can be credited, it reveals comforting news. Moreover, the studies are experimental; both the draft EIR and final EIR acknowledge that the conclusions are not based upon accepted scientific methodology. The information was merely provided at the request of the public in the interest of amplifying or clarifying the discussion of cumulative toxic air emissions contained in the draft EIR. The minimal value of the experimental study is fully disclosed in the final EIR.
Finally, the Regents did not rely upon the study in deciding whether to approve the project; rather, they conservatively adopted a worst case approach to this unknown impact. Therefore, public comment on this study would not further the purposes of CEQA. For the same reasons, we conclude that the Association's arguments premised upon the failure to aggregate the cumulative impacts in the study with the impacts from boiler emissions and traffic emissions do not further the Association's cause.
Regardless of the questionable merits or relevance of aggregating experimental studies with other studies, the analysis in the final EIR and the findings of the Regents would have remained the same.
The Regents treated the whole question of cumulative toxic air emissions as an unavoidable significant adverse impact for purposes of making their decision to approve the project. Description of Use of Loading Docks The draft EIR considers the environmental impacts of an increased number of truck trips to the project and deems the impacts to be insignificant, primarily based on the assessment that most of the trucks would be small trucks and that they would arrive at and depart from the project at fairly even intervals throughout the day.
The draft EIR also describes the three existing loading docks at the project and the modifications planned for the Laurel Street dock. In describing these loading docks the draft EIR states: "The University does require trucks over three tons to use the entrance at the intersection of California and Walnut Streets. Trucks weighing less than three tons are required to use the entrance near the intersection of Laurel Street and Euclid Avenue.
Commercial trucks over three tons are not allowed on Laurel Street. The loading area noted on pages and of the DEIR, off Presidio Avenue, is currently used, and would continue to be used, only for early morning garbage pick ups. The existing receiving area on the Building's north side just east of the main entrance would no longer be used for deliveries.
Under the project, all delivery trucks would be directed to the expanded loading dock on the west [Laurel Street] side of the Building. The Association contends that the change in the description of the use of the loading docks is substantial and requires additional public comment. We conclude that substantial evidence supports the Regents' decision not to seek additional public comment regarding the use of the loading docks.
Contrary to the Association's arguments, we are not confronted with a case where the physical description or scope of the project has changed. Concerned Citizens of Costa Mesa, Inc.
Great Oaks Water Company, supra, Cal. Rather, in this case, the discussion of the use of the loading docks merely clarifies the existing description of the environmental impacts of the estimated increase in truck traffic by specifically stating that almost all of the trucks will use the expanded Laurel Street loading area. The expansion of this loading area and mitigation measures to reduce environmental effects from the expansion are fully described in the draft EIR. Moreover, the conclusions regarding the significance of the impacts of this traffic unsurprisingly were not affected.
The number of estimated trips for various-sized trucks and the entrances used by the trucks are the same in both the draft and final EIR's. Substantial evidence supports the conclusion that the additional information in the final EIR simply clarifies the original discussion of the effects of increased truck traffic at the project. The clarification does not reveal a new or more severe adverse environmental impact.
Recirculation was not required. Discussion of Night-lighting Glare The draft EIR does not discuss the potential visual effects of the use of project lights after dark. In response to public comments regarding the hours the lights were expected to be used in the building, the final EIR adds a discussion of the subject.
The final EIR concludes that lighting of the project would "add only incrementally to existing night lighting in the project vicinity and is not considered significant. The Association contends that this newly recognized impact is "potentially significant" and that public comment on mitigation measures should be obtained. We conclude, however, that addition of the discussion of night- lighting glare is an insignificant modification to the EIR that does not disclose a new adverse environmental impact.
Under the circumstances of this case, we do not fault the draft EIR for failing to discuss the potential effect of glare from night lighting at the project. The area in which the project is located is urbanized. A substantial number of street lights surround the project and the adjacent shopping area.
Headlights from traffic also diminish the darkness. Moreover, the project building has always been an office building. It is not uncommon for office buildings to be lit in whole or in part after regular business hours. Thus, the Regents could reasonably conclude that any extension in the hours of use of the building would have a de minimis effect on the environment. Based upon the entire record, we conclude that substantial evidence supports a determination that the effect of night lighting would be insignificant.
An insignificant modification to an EIR does not require recirculation for additional public comment. Although the Association claims that the public should be provided the opportunity to comment upon mitigation measures for the potential glare, mitigation measures are not required where the environmental effect is insignificant. Moreover, it is clear in this case that the mitigation measure adopted by the Regents will not cause additional adverse environmental effects.
Further, the Regents did not decline to adopt any suggested mitigation measures. None of the purposes of CEQA will be served by solicitation of further public comment on this subject; only needless delay will result. The decision makers and the public were both adequately informed by the final EIR about the consequences of the project with respect to night- lighting glare. The draft EIR discusses in detail six different uses for the Laurel Heights site and five other locations, some owned by the university and some not, for the research facilities proposed to be located at Laurel Heights.
In addition, the draft EIR briefly discusses other alternatives that were considered, but were not addressed in detail, because they were found to be "infeasible, remote or speculative. The draft EIR explains the space deficit at the Parnassus Heights campus and the limitations adopted in the long-range development plan, at the urging of the state Legislature, on additional development of that campus, which is the most densely developed of all University of California facilities.
The draft EIR further explains that, because the necessary space at the Parnassus Heights campus can only be created by demolition of existing buildings fully in use or by violating the limits adopted in the long-range development plan, the alternative of expansion at this site is infeasible.
In response to a single public comment claiming that the alternative of locating the research programs at the Parnassus Heights campus had not been adequately explored in the draft EIR, the final EIR contains a page discussion expanding upon the possible environmental consequences of the alternative. The final EIR also concludes that in no respect is the Parnassus Heights alternative environmentally superior to the proposed project. The Association nevertheless contends that the expanded discussion of this alternative constitutes "significant new information" triggering recirculation of the EIR.
We, however, agree with the Regents that recirculation was not required. An EIR need not consider every conceivable alternative to a project.
Rather, consideration of a reasonable range of feasible alternatives is required to foster informed decisionmaking and public participation. The draft EIR accomplished this goal by considering a wide variety of alternatives ranging from several different uses for the Laurel Heights site to different locations for the research laboratories.
The draft EIR also contains succinct statements of the reasons that other alternatives, such as expansion of the Parnassus Heights campus, were deemed not to warrant further discussion. Furthermore, the reasons given for the rejection of the Parnassus Heights alternative do not constitute an abuse of discretion and are supported by the record.
Since the long-range development plan embodied a decision that expansion at the Parnassus Heights campus was not desirable and that additional space should be developed in other locations, the Regents did not abuse their discretion by relying upon the policies stated in the long-range development plan to assist them in assessing the feasibility of this alternative.
Goleta Valley II, supra, 52 Cal. An alternative is "feasible" and therefore worthy of consideration only if it is "capable of being accomplished in a successful manner within a reasonable period of time, taking into account, economic, environmental, social, and technological factors.
Substantial evidence supports the conclusion that the Parnassus Heights alternative does not meet this requirement. The expanded discussion in the final EIR does not change the determination that the expansion of the Parnassus Heights campus is infeasible. Download your free copy here. The Update by Antero Rivasplata includes new discussions of the administrative record and subsequent environmental documents. These discussions now reflect the optional provisions for preparing a concurrent administrative record established by Senate Bill Chapter , Statutes of and the California Supreme Court's decision on a subsequent document in Friends of the College of San Mateo Gardens v.
This Update includes all key court decisions during , such as the California Supreme Court's decisions on impacts of the environment on the project California Building Industry Assoc.
California Dept. Board of Trustees of California State University. This Update contains a summary of Assembly Bill 52's new requirements for consultation with California Native American tribes, new decisions by the California Supreme Court on the adoption of voter-initiated ordinances and the baseline for CEQA analysis, and an advisory about a San Diego court decisions that may muddy the waters with regard to how greenhouse gas emissions reductions are analyzed.
Ronald E. Bass , J. Bass has a professional and academic background in environmental law and planning. Bass is a frequent speaker at professional workshops on environmental impact assessment. Bass received a J. Bass is coauthor, with Mr. Kenneth M. Bogdan, Esq. Ken has more than 21 years of experience analyzing issues regarding compliance with the California Environmental Quality Act, the National Environmental Policy Act, and other federal and state environmental laws and regulations.
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