In approving a redevelopment project that relies on a 20-year-old environmental impact report, the City of San Diego was not required to conduct supplemental environmental review on the issue of climate change, where the only discretionary action for a project was limited to project aesthetics, the Fourth District Court of Appeal has ruled.
One of the threshold questions in any review under the California Environmental Quality Act is whether the project requires discretionary action or approval by the prevailing governmental entity. If not, then CEQA does not apply and no environmental review is required. In this case – involving Manchester Pacific Gateway's plan to develop 3 million square feet of office, hotel, retail and museum space on former Navy property along the downtown San Diego waterfront – the Fourth District addressed this threshold question in the context of supplemental environmental review of climate change impacts under Public Resources Code § 21166. The court held that because any discretion on the part of the City of San Diego was limited to aesthetics only, there was no discretionary action to trigger supplemental environmental review of climate change impacts.
The genesis of this case goes back to a time before hardly anyone had even heard of climate change. In 1990, the city entered into a development agreement with the United States regarding a redevelopment project in downtown San Diego for which an EIR was subsequently certified. One of the requirements of the development agreement was that the developer submits its construction documents to the Centre City Development Corporation (CCDC), an arm of the city government charged with implementing downtown redevelopment projects. This case involved the CCDC's review of construction documents in 2006 and 2007 – created more than15 years after the development agreement was executed. The CCDC, and subsequently the City Council, determined that no supplemental environmental review was required, even though the original EIR makes no mention of climate change impacts. A group called the San Diego Navy Broadway Complex Coalition brought a lawsuit challenging the city's determination.
After the trial court dismissed the coalition's petition on several grounds, the group appealed on one issue: whether a supplemental EIR was necessary to evaluate the project's impacts on climate change. Instead of focusing on the "new circumstances" test under Public Resources Code § 21166, the appellate court focused on the issue of whether the CCDC's review of the construction documents constituted discretionary action. A discretionary action would trigger the need for supplemental environmental review.
The court assumed, and the parties acknowledged, that the CCDC's review required some amount of discretion, limited only to the subject of aesthetics. Relying on Friends of Westwood v. City of Los Angeles, (1987) 191 Cal.App.3d 259, and Leach v. City of San Diego, (1990) 220 Cal.App.3d 389, the court held that supplemental environmental review of climate change impacts was not required because the city and CCDC's discretion only extended to aesthetics.
The court rejected the coalition's argument that aesthetics are part of CEQA's definition of the environment, and that it was of no consequence that the CCDC's consistency reviews centered on aesthetic issues.
The court cited Friends of Westwood and Leach for the proposition that environmental review is not required when the governmental entity has no authority to shape the project in a way to mitigate for environmental damage. Without the authority to modify the project, environmental review is meaningless.
"The fact that the CCDC could arguably exercise discretionary authority to alter the aesthetics of the Project so as to make the Project consistent with the development agreement does not demonstrate that the CCDC had the authority to modify the Project in accordance with a proposed updated EIR so as to reduce the impact of the Project on global climate change," Justice Cynthia Aaron wrote for the court.
This case seems to extend the reasoning in Friends of Westwood and Leach to the next level. Under the court's analysis, it appears that when it comes to supplemental environmental review, the threshold issue is whether the governmental entity retains any discretion in relation to those impacts that would be evaluated in a supplemental EIR. In this case, the coalition appealed only on the issue of climate change impacts. Perhaps, if the coalition's arguments had centered on aesthetics, the court's analysis of discretionary action would have differed.
San Diego Navy Broadway Complex Coalition v. City of San Diego, No. D055699, 2010 DJDAR 9096. Filed June 17, 2010.
For the coalition: Cory Briggs, (909) 949-7115.
For the city: Heather Stroud, deputy city attorney, (619) 533-5872
For Manchester Pacific Gateway: Steven Strauss, Cooley, Godward, Kronish, (858) 550-6006.