California Court Ratifies 9-Year-Old EIR & Limits Applicability of Subsequent Environmental Review

Concerned Dublin Citizens v. City of Dublin

(2013) __ Cal.App.4th __, 2013 WL 1235649

In Concerned Dublin Citizens v. City of Dublin (2013) __ Cal.App.4th __, 2013 WL 1235649, the First District Court of Appeal held that a residential development project (“project”) was statutorily exempt from the California Environmental Quality Act (“CEQA”) because the project was consistent with a previously approved transit center specific plan. The court also offered an interesting evaluation with respect to subsequent environmental review, ratifying the use of a nine-year-old transit center specific plan environmental impact report (“EIR”) even though the EIR contained no discussion with respect to greenhouse gas (“GHG”) emissions.

The issue in the case was whether the project qualified for a statutory exemption contained in the Government Code. The exemption provides that residential developments are exempt from CEQA if they are consistent with a previously approved specific plan for which an environmental impact report (“EIR”) has been certified, and otherwise do not require subsequent environmental review. The project was to be located within a larger transit center specific plan area for which a program EIR had been certified years earlier.

A citizens’ group sued, arguing that the exemption did not apply because the project (1) was not a “residential development”; (2) was not consistent with the specific plan; and (3) triggered the need for a subsequent environmental document. The court rejected the group’s first two claims, holding that the project was a residential development and was consistent with the specific plan. Notably, the Concerned Dublin Citizens case is the first published case discussing this particular exemption.

Turning to the group’s third claim, the group argued that the project was not exempt because the Bay Area Quality Management District (“BAAQMD”) had published new thresholds with respect to GHG emissions after the transit center specific plan EIR was certified. According to the group, because the transit center specific plan EIR contained no discussion with respect to GHG emissions, the newly adopted BAAQMD thresholds constituted “new information,” thus triggering the need for subsequent environmental review.

The court rejected the group’s claim, holding that the group’s premise was “highly questionable” in light of the fact that the Alameda Superior Court had recently found that BAAQMD failed to comply with CEQA in adopting the new thresholds, and suspended them pending further environmental review. The court further held that the group’s argument would fail even if BAAQMD’s thresholds had not been suspended. In holding that the BAAQMD’s thresholds were not “new information,” the court relied on a planning commission staff report indicating that the potential environmental impacts associated with GHGs were widely known or could have been known at the time the transit center specific plan EIR was certified. According to the staff report, this information was known as early as 1992, when the United Nations established its Framework Convention on Climate Change. Further, the staff report noted that the regulation of GHG emissions was extensively debated and analyzed throughout the early 1990s.

Although the court acknowledged that the transit center specific plan EIR did not address GHG emissions, the court noted that the EIR’s omission was of no moment because “the impacts of the project on air quality were considered in the EIR and substantial evidence supports the city’s finding that the potential effects of GHGs were known and could have been addressed in conjunction with the certification of the EIR in 2002.” Accordingly, the City properly concluded that the issuance of BAAQMD’s new threshold guidelines were not new information requiring subsequent environmental review.

Concerned Dublin Citizens is significant for two reasons. First, it ratified the use of a nine-year-old EIR, a decisionwhich directly conflicts with newly proposed legislation which, if passed, would limit the “shelf-life” of an EIR to seven years. (See CEQA Reform Watch: New Proposed Amendments) Second, the Concerned Dublin Citizens decision is yet another example of the courts’ tendency to favor finality over the need to reopen the CEQA process. Indeed, just as some in the California Legislature are attempting to expand the scope of CEQA, this decision underscores what seems to be an attempt by the courts to limit the applicability of at least one provision of CEQA.

We will continue to provide regular updates regarding CEQA case law developments, as well as other legal developments in the context of mining, land use, and natural resources law.

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