By Glen Hansen

In Citizens for a Sustainable Treasure Island v. City and County of San Francisco (2014) 227 Cal.App.4th 1036, the Court of Appeal for the First Appellate District held that the environmental impact report for the comprehensive plan to redevelop Treasure Island and Yerba Buena Island in the San Francisco Bay, which was labeled a “project EIR” (a) satisfied the substantial evidence standard of review as to all of the required elements of an EIR; (b) addressed the environmental impacts of the proposed project to a degree of specificity consistent with the underlying activity being approved; and (c) properly allows for supplemental review that may be necessary in the future.

Treasure Island is a man-made island consisting of about 404 acres of landfill placed on former tidelands and submerged lands in the middle of San Francisco Bay between San Francisco and Oakland, California. Yerba Buena Island is an adjacent, approximately 160-acre, natural rock outcropping. Treasure Island and the causeway that connects it to Yerba Buena Island were constructed in the late 1930’s. During World War II, the United States Department of Defense converted the area into a naval station, which it operated until 1997. The existing conditions on the former naval station cite are characterized by aging infrastructure, environmental contamination from former naval operations, deteriorated and vacant buildings, and asphalt and other impervious surfaces which cover approximately 65 percent of the site. The City and County of San Francisco (“City”) and the community have been formulating plans for the reuse of the former naval station since its closure.

In June 2011, after more than a decade of planning, study and community input, the City’s board of supervisors unanimously approved a comprehensive plan to redevelop the former naval station and the adjacent Yerba Buena Island (the “Project”). The environmental impact report (“EIR”) envisioned the Project as including a new, mixed-use community, including up to 8,000 residential units; up to 140,000 square feet of new commercial and retail space; up to 100,000 square feet of new office space; restoration and reuse of historic buildings on Treasure Island; about 500 hotel rooms; public utilities; 300 acres of parks, playgrounds, and public open space; bike and transit facilities; a new ferry terminal and intermodal transit hub; and a rehabilitated public school building. Construction and buildout of the Project would be phased and anticipated to be completed over an approximately 15- to 20-year period.

Citizens for a Sustainable Treasure Island (“CSTI”) filed a writ of mandamus alleging that the City and real party in interest Treasure Island Development Authority (“TIDA”) failed to certify a legally adequate (“EIR”) for the Project, and therefore violated the California Environmental Quality Act (“CEQA”) (Pub. Resources Code, § 21000 et seq.). CSTI’s principal argument was that the EIR should have been prepared as a program EIR, not a project-level EIR, because there is insufficient detail about various aspects of the Project, including remediation of hazardous materials, building and street layout, historical resources and tidal trust resources, for “project-level” review. CSTI alleged other defects in the EIR. The trial court denied the petition for writ of mandate. The Court of Appeal for the First Appellate District affirmed.

CSTI’s primary argument on appeal was that the City prejudicially abused its discretion by preparing a project EIR instead of a program EIR. Under general CEQA principles, a “project EIR” is prepared for a construction-level project, and should focus primarily on the changes in the environment that would result from the development project and examine all phases of the project including planning, construction, and operation. In contrast, a “program EIR” evaluates the broad policy direction of a planning document, such as a general plan, but does not examine the potential site-specific impacts of the many individual projects that may be proposed in the future consistent with the plan. Program EIRs play a key role in a “tiered” CEQA analysis.

In this case, the EIR stated it is a “project EIR” that analyzes all phases of the Project at maximum buildout. CSTI argued “at best, the EIR constitutes conceptual, program-level CEQA analysis” which functions as a first-tier document, and anticipates later environmental review on specific projects. CSTI claimed the most appropriate way to address the Project is by “tiered environmental review … where, as here, the proposal being advanced is an overarching, conceptual plan or program, the project-level details of which will only become known as they are later formulated and presented in a series of later, project-level proposals intended to implement the conceptual plan or program.”

However, the Court of Appeal found that CSTI improperly focused on the EIR’s designation rather than its substance “[T]he ‘fact that this EIR is labeled a “project” rather than a “program” EIR matters little….’” The court explained:

“Designating an EIR as a program EIR … does not by itself decrease the level of analysis otherwise required in the EIR. ‘All EIR’s must cover the same general content. The level of specificity of an EIR is determined by the nature of the project and the “rule of reason,” rather than any semantic label accorded to the EIR.’”

The court explained that the question is not whether a program EIR should have been prepared for the Project, but whether the EIR addressed the environmental impacts of the Project to a degree of specificity consistent with the underlying activity being approved through the EIR. The court held that the EIR for the Project in this case contained all of the required elements of an EIR that are set forth in Article 9 of the CEQA Guidelines. (The court noted that those requirements are (i) a table of contents or index; (ii) a summary; (iii) a project description); (iv) a discussion of the environmental setting; (v) consideration and discussion of environmental impacts; (vi) consideration and discussion of significant environmental impacts; (vii) consideration and discussion of mitigation measures proposed to minimize significant effects; (viii) consideration and discussion of alternatives to the proposed project; (ix) a discussion of effects not found to be significant; (x) a list of organizations and persons consulted; (xi) a discussion of cumulative impacts; (xii) to a limited extent, a discussion of economic and social effects of the proposed project; and (xiii) revisions to the draft EIR, comments on the draft EIR, a list of commenters on the draft EIR, and the lead agency’s responses to comments on the draft EIR.)  The court explained that the level of detail in an EIR is driven by the nature of the project, not the label attached. It is the substance, rather than the form, of the environmental document which determines its nature and validity. The degree of specificity required in an EIR corresponds to the degree of specificity involved in the underlying activity that is described in the EIR. Here, the EIR provided sufficient project-level disclosure and analysis.

The court also held the same substantial evidence standard of review applies to subsequent environmental review for a project reviewed in a program EIR or a project EIR. CSTI was wrong in asserting that the “fair argument” standard automatically applies to subsequent discretionary actions in every case where a program EIR has been prepared. (The court did recognize that the fair argument test is required, however, when an agency attempts to tier its environmental review for a “materially different project onto a prior program EIR.”)  

Furthermore, the court emphasized that, in reviewing this EIR, it detected no attempt to avoid supplemental review. In fact, the EIR acknowledged the duty to perform supplemental review as the Project builds out over 15 to 20 years, and that duty exists regardless of whether the EIR was prepared as a project EIR, or as a program EIR.

Finally, the court rejected CSTI’s additional CEQA challenges, and held that the project description was accurate and stable; that hazardous substance remediation was adequately discussed; that regulatory compliance as mitigation was appropriate; that adding a consultation requirement did not require recirculation; that the EIR contained specific criteria for historic preservation; and that the EIR addressed tidelands protection.

Glen Hansen is senior counsel 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, or 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.