By Janell M. Bogue

In the case of Sierra Club v. City of Orange (April 30, 2008) 2008 Cal.App.Lexis 814 (publication status changed from unpublished to published on May 30, 2008), the Court of Appeal, Fourth Appellate District upheld a combined supplemental environmental impact report (“SEIR”) and environmental impact report (“EIR”) for a large mixed use development. In its opinion, the court covered a wide range of CEQA issues, including timely filing of a lawsuit after a notice of determination, the exhaustion doctrine, project baselines, and alternatives. 


In the 1980’s, the City of Orange (“City”) certified a program-level EIR and adopted the East Orange General Plan for an area covering nearly 7,000 acres within the City’s sphere of influence. Subsequently, a project-level SEIR was certified for part of the East Orange General Plan area in 2000. In 2003, Irvine Company (“Irvine”), the real-party-in-interest, submitted several applications for several large projects within the East Orange General Plan area. These included over 3,000 residential units, commercial development, open space, and institutional development. The City issued a notice of preparation (“NOP”) for a combined environmental document. This document would function as a project-level SEIR (covering changes from the previously certified SEIR), a project-level EIR for part of the development, and a program-level EIR for the remaining areas. This combined Draft SEIR/EIR was released for public comment in 2004 and the final document was issued in May 2005. It was certified by the City Council on November 8, 2005. A notice of determination (“NOD”) was posted on November 9; however, it listed an incorrect approval date. A second, correct NOD was posted on November 14. Plaintiff Sierra Club (“SC”) filed its petition for writ of mandate on December 14.

Statute of Limitations

Initially, Irvine asserted that the short 30-day CEQA statute of limitations prevented the action from going forward. Public Resources Code section 21167(c) states that an action challenging the adequacy of an EIR must be filed within 30 days after posting of the NOD. However, here, the NOD that was posted on November 9 was defective because it listed the incorrect date of project approval. CEQA Guidelines section 15094(b)(3) requires that the NOD include “the date on which the agency approved the project.” The NOD filed on November 14 was not titled as an amended or corrected notice. Therefore, the appellate court held that SC had the right to rely upon the second NOD and the petition was timely filed. 

Exhaustion of Administrative Remedies

SC next asserted that the SEIR/EIR violated CEQA because it “[broke] up impacts by separate project components.” Irvine argued that the plaintiff was barred from asserting this issue because it failed to exhaust its administrative remedies. Public Resources Code section 21177(a) states:

No action or proceeding may be brought pursuant to Section 21167 unless the alleged grounds for noncompliance with this division were presented to the public agency orally or in writing by any person during the public comment period provided by this division or prior to the close of the public hearing on the project before the issuance of the notice of determination.

The California courts have long held that the “exact issue” must have been presented to the administrative agency” in order to advance the doctrine’s purpose of giving the agency an opportunity to act and “render litigation unnecessary, if it had chosen to do so.” Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385. The petitioner bears the burden of demonstrating that the issues were raised at the administrative level. Here, SC employed a “string-cite response” and referred to pages in the administrative record. However, the court held that SC did not meet its burden to show that the exact issue had been raised. It said, “These [references to comments] constitute the type of ‘isolated and unelaborated comments by members of the public’ that courts have held fail to ‘fairly raise the piecemealing argument to the City.’” 

The court also noted that some of the references made by SC were to statements made in response to the NOP and emails to a consultant before the issuance of the draft environmental document. The court said that “[i]n applying section 21177, we must assume that the Legislature meant what it said and interpret the statute according to its plain meaning.” Therefore, comments made in response to an NOP do not satisfy the exhaustion requirement.


SC also argued that the SEIR/EIR was insufficient because it did not adequately describe the baseline conditions in the project area. Specifically, SC asserted that the water quality section did not include adequate discussion of the baseline pollutant levels in Irvine Lake. SC also claimed that the traffic analysis improperly included trips approved by the 2000 entitlements. CEQA Guidelines section 15125(a) states:

An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant.

The appellate court disagreed with SC on the water quality issue. SC argued that the SEIR/EIR “contain[s] one, vague and conclusory sentence addressing baseline conditions in Irvine Lake.” The court said, however, that information regarding pollutants was contained in the water quality section of the document as well as in the runoff management plan (“ROMP”) which was adopted as part of the project. The ROMP was available for public viewing and was made part of the Final SEIR/EIR. The court also pointed out that CEQA Guidelines section 15147 expressly authorizes the use of appendices for technical data. 

Regarding the traffic impacts analysis, the appellate court also disagreed with SC. The court pointed out that the portion of the environmental document challenged by SC functioned as an SEIR to the entitlements previously approved in 2000. Public Resources Code section 21166 states that an SEIR is only required when there have been substantial changes in the project. CEQA Guidelines section 15163(b) requires that an SEIR “need contain only the information necessary to make the previous EIR adequate for the project as revised.” Further, case law supports the approach used by the City. “When a lead agency is considering whether to prepare an SEIR, it is specifically authorized to limit its consideration of the later project to effects not considered in connection with the earlier project.” (Temecula Band of Luiseno Mission Indians v. Rancho Cal. Water District (1996) 43 Cal.App.4th 425.) Therefore, the City acted in conformance with CEQA when it described the traffic baseline and impacts.


The final issue concerns the alternatives analysis contained in the SEIR/EIR. SC claimed that the City failed to consider a reasonable range of alternatives and that analysis was not sufficiently detailed. SC alleged that each alternative presented in the SEIR/EIR was environmentally disadvantageous and only one alternative had substantial environmental advantages over the proposed project. Therefore, SC concluded that the SEIR/EIR only analyzed one alternative. SC also claimed that the matrix used in the SEIR/EIR was not in-depth enough.

The appellate court disagreed with SC’s first contention. The court said:

The apparent premise for this approach is the plaintiff’s assumption that an alternative which is superior only in some respects to the project cannot satisfy the alternatives analysis reasonable range requirement. This is incorrect.

The court said that it would be “practically impossible” to develop an alternative that would provide environmental advantages in all areas. Further, CEQA Guidelines section 15126.6 authorizes consideration of alternatives that would “avoid or substantially lessen any of the significant effects of the project.” 

The court also disagreed with SC’s second claim. The use of a matrix to compare alternatives is expressly authorized by CEQA Guidelines section 15126.6. Further, each proposed alternative had a two-paragraph discussion following the matrix. The court said that the “discussion of alternatives need not be exhaustive.” (Foundation for San Francisco’s Architectural Heritage v. City and County of San Francisco (1980) 106 Cal.App.3d 893.) In concluding that the alternatives analysis complied with CEQA, the court said, “[t]he SEIR/EIR’s discussion of project alternatives may not be perfect, but it is sufficient.”

Janell Bogue is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and 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.