California Court Affirms Limited Scope of CEQA Review Where a Prior Negative Declaration Exists

Abatti v. Imperial Irrigation District

In Abatti v. Imperial Irrigation District, the Fourth Appellate District has affirmed CEQA Guidelines Section 15162 and the longstanding Benton v. Board of Supervisors case, which collectively limit a lead agency's duty to conduct further environmental review for a project where a negative declaration has previously been adopted.

The importance of Section 15162, as interpreted more than 20 years ago in Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, is that when a lead agency adopts a negative declaration, it may forego later CEQA review for the same project if substantial evidence exists in the record to support the determination that circumstances have not substantially changed to merit a fresh look. It provides lead agencies with a safe harbor against the "fair argument" standard that otherwise sets a low threshold for triggering an EIR.

In 2006, the Imperial Irrigation District adopted a resolution which set forth its plan for water distributions in the event of actual or potential shortages. The District adopted a negative declaration and found the plan would have no significant effect on the environment. Subsequently, in 2007 and 2008, the District adopted regulations to implement the 2006 resolution, without further CEQA review. Abatti and other agricultural users sued, alleging the District should have conducted additional CEQA review before adopting the regulations.

The plaintiffs contended that Benton was a "mistaken decision." They argued that the fair argument standard should instead apply to the determination that an EIR is not required, when a negative declaration was previously adopted. The court declined to depart from Benton, however, and explained its rationale as follows:

[F]undamentally, we agree with the central premise of Benton that it makes little sense to set a lower threshold for further environmental review of a project that is determined not to have a significant effect on the environment than section 21166 sets for a project that may have significant effects on the environment.

The court also found it noteworthy that, as a matter of established precedent, no reported California court had disagreed with Benton that section 15126 applied where a negative declaration was previously adopted.

Abatti is noteworthy because it preserves the favorable standard that governs a lead agency's decision not to prepare an EIR where a prior negative declaration exists. The decision allows CEQA lead agencies a measure of security that they may carry out projects, without further CEQA processing, where time has elapsed or changes have occurred since the negative declaration was adopted.

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