By Cori M. Badgley

One of the threshold questions in any review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (“CEQA”) is whether the project requires discretionary action or approval by the governmental entity. If the answer is no, then CEQA does not apply and no environmental review is required. In San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) ____ Cal.App.4th ___, the Court of Appeal, Fourth Appellate District addressed this threshold question in the context of supplemental environmental review of climate change impacts under Public Resources Code section 21166. The court held that because any discretion on the part of the City of San Diego (“city”) was limited to aesthetics only, there was no discretionary action triggering supplemental environmental review of climate change impacts.

In 1990, the city entered into a development agreement with the United States of America regarding a redevelopment project in downtown San Diego for which an environmental impact report (“EIR”) was certified. One of the requirements of the development agreement was that the developer submit its construction documents to the Centre City Development Corporation (“CCDC”), which was a public nonprofit charged with implementing downtown redevelopment projects. This case involved the CCDC’s review of construction documents in 2006 and 2007, 17 years after the development agreement was executed. The CCDC, and subsequently the City Council, determined that no supplemental environmental review was required, despite the complete lack of a discussion in the original EIR of climate change impacts. The San Diego Navy Broadway Complex Coalition (“Coalition”) brought a petition for writ of mandate challenging the city’s determination.

After the trial court dismissed the Coalition’s petition on several grounds, the Coalition appealed on one issue: whether a supplemental EIR was necessary to evaluate the project’s impacts on climate change. Instead of focusing on the “new circumstances” test under Section 21166 of the Public Resources Code, the appellate court narrowed in on the issue of whether the CCDC’s review of the construction documents constituted discretionary action, triggering the need for supplemental environmental review.

The court assumed, and the parties acknowledged, that the CCDC’s review required some amount of discretion, limited only to the subject of aesthetics. Relying on Friends of Westwood v. City of Los Angeles (1987) 191 Cal.App.3d 259 and Leach v. City of San Diego (1990) 220 Cal.App.3d 389, the court held that supplemental environmental review of climate change impacts was not required because the city and CCDC’s discretion only extended to aesthetics. The court rejected the Coalition’s argument that aesthetics are part of CEQA’s definition of the environment, and therefore, the “fact that the consistency reviews [by the CCDC] centered around aesthetic issues is of no consequence and environmental review required.” (San Diego Navy Broadway Complex Coalition, at p. 27.)

The court cited to Friends of Westwood and Leach for the proposition that environmental review is not required when the governmental entity has no authority to shape the project in any way to mitigate for environmental damage. Without the authority to shape or modify the project, environmental review is meaningless. Thus, in the context of the CCDC’s review, the court reasoned:

The fact that the CCDC could arguably exercise discretionary authority to alter the aesthetics of the Project so as to make the Project consistent with the development agreement does not demonstrate that the CCDC had the authority to modify the Project in accordance with a proposed updated EIR so as to reduce the impact of the Project on global climate change. (Id. at 26.)

This case seems to extend the reasoning in Friends of Westwood and Leach to the next level. Under the court’s analysis, it appears that when it comes to supplemental environmental review, the threshold issue is whether the governmental entity retains any discretion in relation to those impacts that would be evaluated in a supplemental EIR. In this case, the Coalition only appealed on the issue of climate change impacts. Perhaps, if the Coalition’s arguments had centered around aesthetics, the court’s analysis of discretionary action would have differed.

Cori M. Badgley is an associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.