Citizens for Responsible Equitable Environmental
Development v. City of San Diego (D057524, Filed 5/19/11)
The City of San Diego certified an Environmental Impact Report
and approved a large project in 1994. In 2009, it considered
another discretionary approval for the final phase of that project.
The California Environmental Quality Act (CEQA) permits an agency
to require a supplemental Environmental Impact Report in this
circumstance when the agency determines, based on substantial
evidence that could not have been known at the time the prior EIR
was certified, that the project will have new or more severe
significant impacts than were previously identified. The City
prepared an addendum to its prior EIR to present the evidence
supporting its conclusion that no supplemental EIR was
The Water Code requires that a city request preparation of a
Water Supply Assessment only at the time it "determines
whether an environmental impact report, a negative declaration, or
a mitigated negative declaration is required for any project."
Here, the City determined that no such environmental document was
required, but City staff nonetheless prepared a Water Supply
Assessment for the 2009 project and included the assessment in the
addendum. Further, even though CEQA requires only that an agency
consider information in an addendum when one has been prepared, the
City here invited comments on its draft addendum, and the City
Council held a hearing and "certified" the addendum
before approving the 2009 project.
Project opponents sued, noting that the Water Code requires that
a Water Supply Assessment be approved by the legislative body of
the water supplier at a public hearing before being included in an
environmental document. The California Court of Appeal ruled that,
under these facts, the City Council's approval of the addendum
was sufficient to operate as an approval of the Water Supply
Assessment. It explained that there would be no point in requiring
that the City Council hold two different hearings to approve a
Water Supply Assessment and then a CEQA document.
The court also ruled that the petitioner had failed to present
adequately its claims that a supplemental EIR was required on water
supply issues. The petitioner had submitted voluminous reports on a
DVD that accompanied its letter commenting on the addendum. The
letter stated, "see also water supply folder (evidence
regarding decreasing water supply)," but the court held this
statement insufficient to raise claims that drought conditions had
not been addressed in the CEQA analysis. The City had no duty, the
court ruled, to "pore through thousands of documents [on the
disk] to find something that arguably supports [the
petitioner's] belief project should not go forward."
Further, a councilmember's comments – to the effect
that the addendum did not expressly address drought or the prospect
of water rationing – were insufficient to exhaust
remedies because the councilmember never claimed that a
supplemental EIR was required on that ground.
The petitioner also claimed that a supplemental EIR was required
to address greenhouse gas emissions, which had not been studied in
the 1994 EIR. Petitioner commented that the "project will
cause direct and indirect greenhouse gas emissions that, when
considered cumulatively, are significant." These statements,
the court ruled, were general and not specific to the project, and
therefore did not exhaust remedies. The court also ruled that
information about climate change and greenhouse gas emissions dated
back to the 1970s and was not new information. "The effect of
greenhouse gas emissions on climate could have been raised in 1994
when the City considered the [EIR]." Accordingly, the court
upheld the City's decision not to prepare a supplemental
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On September 30, 2014, the United States District Court for the District of Arizona (Campbell, D.J.) issued an order in Yount v. Salazar, Nos. 11-8171 et al., 2014 WL 4904423 (D. Ariz. Sept. 30, 2014). As part of this order, the court determined that certain business plaintiffs’ alleged injuries did not fall within the "zone of interests" of the National Environmental Policy Act ("NEPA"), drawing in part on a recent Supreme Court opinion clarifying the zone-of-interests doctrine.