EIR Addendum vs. Supplemental EIR

Citizens against Airport Pollution v. City of San Jose (2014)

27 Cal.App.4th 788

Where an EIR has already been prepared, California Public Resources Code section 21166 provides for deferential review and only requires preparation of a subsequent or supplemental EIR under limited circumstances. The California Appellate Court recently had occasion to apply the section 21166 standard to an updated airport master plan, which was periodically updated to reflect changes in airport operations.

There, an EIR for the expansion of San Jose’s airport was certified in 1997, and a supplemental EIR was certified in 2003. The project was amended between 1997 and 2010 and, accordingly, eight addenda were approved. The eighth addendum, at issue in the case, changed the size and location of air cargo facilities; replaced previously planned air cargo facilities; and modified taxiways. Not surprisingly, the city argued that the proposed modifications had no significant environmental impacts not previously disclosed in the program EIR, and did not cause a substantial increase in the previously identified environmental impacts. A group challenged the City’s approval of the eighth addendum, alleging that the proposed changes were not within the scope of the Master Plan EIR and required preparation of a subsequent EIR.

Citing section 21166, the court stated that when an agency has already prepared an EIR for a project, the reviewing court will uphold the decision to not prepare a subsequent EIR if substantial evidence supports the agency’s determination. In contrast, the decision of whether to prepare an EIR in the first instance is subject to the less deferential “fair argument” standard. The court upheld the city’s decision because the city had already prepared an EIR for the project, and the court found substantial evidence supported the decision to forego preparation of a subsequent EIR. This case provides another important example that CEQA is designed to protect existing, approved projects from further unnecessary environmental review.

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