Subsequent/Supplemental EIR

In Save Berkeley’s Neighborhoods v. Regents of the University of California, No. A157551 (June 25, 2020) the court of appeal rejected the University of California’s argument that it need not have prepared a Supplemental EIR to analyze the effects of its discretionary decisions to increase enrollment on the Berkeley campus. The University had prepared a Program EIR for its UC Berkeley Long Range Development Plan in 2005. The LRDP EIR anticipated enrollment would increase by 1,650 students over the life of the plan. Beginning in 2007, the University made periodic decisions to increase Berkeley enrollment such that, by 2018, enrollment had increased by 8,300 students.

Petitioners argued that the University’s decisions to increase enrollment constituted changes to the previously approved project and that the University had violated CEQA each time it decided to increase enrollment in the absence of a Supplemental or Subsequent EIR. They also claimed they did not know about the University’s decisions to increase enrollment until 2017 and argued that their complaint was therefore timely.  The University sought dismissal of the lawsuit on the ground that the claims did not state a legal violation of CEQA, even if the allegations were true.

The court of appeal first recognized the general rule that CEQA applies whenever a public agency makes a discretionary decision that could have a physical effect on the environment. Because changes in enrollment have the potential to result in physical environmental effects, this general rule would dictate that decisions by public universities to increase enrollment are projects subject to CEQA.
Continue Reading Public Universities Must Comply with CEQA when Deciding to Increase Enrollment

After a public agency approves a project, the agency’s actions to implement the project—in this case, applying for and accepting a streambed alteration agreement from the California Department of Fish and Wildlife—are not subsequent discretionary approvals that require supplemental environmental review under CEQA. Willow Glen Trestle Conservancy v. City of San Jose, No. H047068  (6th Dist., May 18, 2020).

The project in this case involved the City of San Jose’s replacement of a wooden railroad bridge with a new steel truss pedestrian bridge that would connect with a local trail system. The City adopted a mitigated negative declaration and approved the project in 2014. (The MND was challenged in a prior lawsuit and, as we previously reported, in 2016 the court of appeal upheld the MND and the city’s determination that the railroad bridge was not a historical resource.)

After approving the project, the City applied for and received a streambed alteration agreement from CDFW. The original SAA for the project expired at the end of 2017, before the project was completed. The City then applied for a new SAA and, following some negotiations over measures with CDFW, accepted and signed a new SAA in 2018. By that time, the railroad bridge had been added to the California Register of Historical Resources.

The petitioner sued the City, arguing that the City’s application for and acceptance of a new SAA were discretionary approvals that required supplemental environmental review under CEQA. (Under Public Resources Code section 21166 and CEQA Guidelines section 15162, supplemental environmental review following project approval is required only in connection with a subsequent discretionary approval for the project.)
Continue Reading Agency Actions to Implement an Already-Approved Project Are Not Subsequent Discretionary Approvals Requiring Supplemental Environmental Review