The Fourth District Court of Appeal (Div. 1) held in a published opinion filed October 24, 2018, that CEQA Guidelines § 15164 validly establishes an addendum process that is consistent with the CEQA statute, implementing and filling gaps in Public Resources Code § 21166.  The Court also held that new findings under Public Resources Code § 21081 addressing a project’s significant impacts are not required when a lead agency approves an addendum to an EIR.  Save Our Heritage Organisation v. City of San Diego (The Plaza de Panama Committee, Real Party in Interest) (2018) ____ Cal.App.5th ____.

In upholding the validity of EIR addendums generally under CEQA – as well as affirming the trial court’s judgment denying petitioner Save Our Heritage Organisation’s (SOHO) mandamus petition challenging the City of San Deigo’s (City) Addendum for revisions to the Plaza de Panama project (project) at Balboa Park – the Court answered an important question expressly left unaddressed by the California Supreme Court in Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist. (2016) 1 Cal.5th 937 (my post on which can be found here).  Its resolution of the issue preserves a useful tool for lead agencies to document compliance in the subsequent review context where CEQA’s high standards for requiring preparation of a subsequent or supplemental EIR are not met.

Background Information:  The Original Project, Prior Litigation,
The Modified Project, and the Addendum

As factual background, the City’s project to restore pedestrian and park uses to Balboa Park’s Central Mesa and alleviate vehicle/pedestrian conflicts in the century-old, historically significant urban park was approved in 2012.  SOHO initially challenged the project’s EIR on multiple grounds, prevailing on some in the trial court, but suffering a complete defeat by reversal on appeal and also losing its separate appeal of an order denying it a fee award.  During the earlier litigation, physical changes to the environmental setting occurred when the City removed parking spaces, signage, wheel stops and plants from the Plaza de Panama; reconfigured traffic to accommodate nearby train, bus and valet drop off; resurfaced the Plaza and added planters, benches, umbrella tables, and chairs; reconstructed two parking lots to add accessible spaces and achieve ADA compliance; replaced existing trains with new higher capacity trains and created a train service yard; completed bridge maintenance; and added other pedestrian-friendly features.  (Unrelated to the project, but also within the Central Mesa, the San Diego Zoological Society built a 600-space parking structure with related pedestrian and ADA parking improvements.)

In 2016, the City adopted an addendum to the project EIR addressing several project modifications including:  Centennial Bridge modifications addressing current CalTrans requirements; adding and redesigning storm water basins to meet current standards; adding parking lot ventilation; making energy efficiency upgrades; increasing the elevation of the landfill where excavated soils were disposed of; and refining construction design.  Ultimately, the modified project will result in 353 added parking spaces, 93 more than called for by the original project.

The addendum reviewed the modified project’s potential impacts in the areas of land use, historical resources, aesthetics, transportation, air quality, biological resources, energy, geologic conditions, GHG  emissions, health and safety/hazardous materials, and numerous other areas.  It concluded (and the City found) that there were: (1) no substantial changes to the project requiring major revisions to the EIR because of new or substantially increased significant environmental effects; (2) no substantial changes in circumstances requiring major revisions to the EIR because of new or substantially increased significant environmental effects; and (3) no new, previously unknown or unknowable, information of substantial importance showing: (a) new or substantially more severe significant efforts than were discussed or shown in the EIR; (b) that previously infeasible mitigation measures/alternatives are now feasible and would substantially reduce significant efforts; or (c) that considerably different mitigation measures than analyzed in the EIR would substantially reduce significant effects.

The Court of Appeal’s Decision

In affirming the judgment denying SOHO’s challenges to the addendum, the Court of Appeal’s key points and takeaways included the following:

• Regarding its standard of review of the agency’s (not trial court’s) action for abuse of discretion: “We determine de novo whether the City failed to proceed in the manner required by law while we accord greater deference to the City’s factual conclusions.”
• Guidelines § 15164 provides in pertinent part: “(a) The lead agency or a responsible agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary but none of the conditions described in [Guideline] 15162 calling for preparation of a subsequent EIR have occurred.  [¶]… [¶] (c) An addendum need not be circulated for public review but can be included in or attached to the final EIR…. [¶] (d) The decision-making body shall consider the addendum with the final EIR… prior to making a decision on the project.  [¶] (e) A brief explanation of the decision not to prepare a subsequent EIR pursuant to [Guideline] 15162 should be included in an addendum to an EIR, the lead agency’s required findings on the project, or elsewhere in the record.  The explanation must be supported by substantial evidence.”  The Resources Agency’s discussion of § 15164 states it was “designed to provide clear authority for an addendum as a way of making minor corrections in EIRs… without recirculating the EIR” and that “section [15164] provides an interpretation with a label and an explanation of the kind of document that does not need additional public review.”
• Under established case law, Guidelines § 15164, like any agency action, carries a presumption of validity, and SOHO as the challenging party has the burden of demonstrating its invalidity. In reviewing its validity, the court considers “whether… [it] is (1) consistent with and not in conflict with CEQA, and (2) reasonably necessary to effectuate the purpose of CEQA.  [citations]”  “The analysis of these questions depends on whether the Guideline is a quasi-legislative rule or an interpretive rule.”  In essence, quasi-legislative rules result from legislatively-delegated law making authority and “have the dignity of statutes,” while interpretive rules “represent the agency’s understanding of a statute’s meaning and effect.”  A quasi-legislative rule is upheld if it is within the delegated lawmaking authority and reasonably necessary to implement the statute’s purpose, whereas a court must also find an interpretive rule to be “a proper construction of the statute” to uphold it.  Some rules are not readily categorized, and the Supreme Court has not decided whether the CEQA Guidelines are generally quasi-legislative or interpretive in nature; the Court found that it need not decide that issue to resolve this case, and that even were Guidelines § 15164 to be treated as purely interpretive, SOHO has not established its invalidity.
• Guidelines § 15164 implements Public Resources Code § 21166, which “effectively creates a presumption against further environmental review after a project has been previously subjected to environmental review. [citations].”  “The project changes, changed circumstances, and new information referred to in [the statute] only require a subsequent EIR if they involve new significant environmental effects, substantially more severe significant environmental effects, or newly feasible or different mitigation measures which would substantially reduce one or more significant environmental effects.  (Guideline 15162, subd. (a).)”
• “Although Section 21166 does not expressly authorize the addendum process prescribed in Guideline 15164, the addendum process fills a gap in CEQA for projects with a previously certified EIR requiring revisions that do not warrant the preparation of subsequent EIRs. [citation] “CEQA authorizes the Resources Agency to fill such gaps in the statutory scheme, so long as it does so in a manner consistent with the statute.” [citation]”
• The Court further explained: “Guideline 15164 is consistent with and furthers the objectives of section 21166 by requiring an agency to substantiate its reasons for determining why project revisions do not necessitate further environmental review. [citations]” It noted a project opponent can challenge and have set aside an agency’s determination if it is not supported by substantial evidence, but that (as the Supreme Court has observed) initiating further environmental review whenever plans or circumstances change would result in an “intractable” agency decision making process; accordingly, “the addendum process reasonably implements section 21166’s objective of balancing the consideration of environmental consequences in public decision making with interests in finality and efficiency.”  (Citing Friends of the College of San Mateo Gardens, supra, 1 Cal.5th at 949.)
• In summarizing its reasoning in rejecting SOHO’s primary argument for invalidating the Guidelines’ addendum process, the Court stated: “The absence of a public review process for addendums comparable to initial or subsequent EIRs does not render Guideline 15164 inconsistent with CEQA.  Rather, the absence of public review reflects the nature of an addendum as a document describing project revisions too insubstantial in their effect to require subsequent environmental review.  The absence of public review also reflects the finality of adopted EIRs and section 21166’s proscription against further environmental review except in specified circumstances.”  The Court explained that after EIR certification, “the interests of finality are favored over the policy of encouraging public comment” (quoting Laurel Heights Improvement Assn. v. Regents of University of California (1993) 6 Cal.4th 1112, 1130), and that “the absence of public review largely mirrors [the provisions governing] analogous precertification revisions to final EIRs.”
• As a final basis supporting its holding that Guideline § 15164’s addendum process is valid under CEQA, the Court noted that that section was first promulgated in 1983 and the Legislature has never modified CEQA to eliminate it, thus strongly indicating its consistency with legislative intent.
• Finally, the Court had little trouble rejecting SOHO’s argument that additional findings under Public Resources Code §  21081 (addressing a project’s identified significant effects) must be made when an addendum is approved.  Such findings were already made at the original EIR stage; “an addendum is only proper where no new significant environmental impacts are discovered” and “[t]he only purpose of [§ 21081] findings is to address new significant effects to show the lead agency has properly considered ways in which to mitigate or avoid such effects.”  (Quoting Fund for Environmental Defense v. County of Orange (1988) 204 Cal.App.3d 1538, 1553.)