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October 2010

Potential Effects on Climate Change May Not be Required in EIR Analysis under CEQA

San Diego Navy Broadway Complex Coalition v. City of San Diego

A California Court of Appeal's recent decision provides significant guidance for public entities, developers, and land owners in connection with projects requiring an environmental impact report ("EIR"). Under the California Environmental Quality Act ("CEQA"), a public entity is required to prepare and consider an EIR if it undertakes a discretionary project which may have a significant effect on the environment. The issue: must the project's potential effect on global warming be considered. The answer – at least for now – is no.

In San Diego Navy Complex Coalition v. City of San Diego 185 Cal. App. 4th 924 (2010): the City reviewed a proposed redevelopment project of the San Diego Navy Broadway Complex ("Project"). The Project site is a large tract of waterfront land in downtown San Diego and includes dilapidated office buildings, parking lots, industrial space and open space, formerly occupied by the US Navy. In 1992, the City entered into an agreement with the federal government, the complex owner, to redevelop the land with the assistance of the project developer, Manchester Pacific Gateway LLC ("Manchester").
 
Manchester submitted its plans to City's redevelopment agency, the Centre City Development Corp. ("CCDC") for review. The Project plan included up to 1.6 million sq. ft. of office space, 1.2 million sq. ft. of hotel space, 25 thousand sq. ft. of retail space, and 55 thousand sq. ft. of museum/public attraction space. 

CCDC evaluated Manchester's plans in an environmental impact report ("EIR"), which evaluated the project's anticipated environmental impacts, and concluded that no further environmental review was required under CEQA. Then, pursuant to CEQA, the City certified the EIR as complete.

The San Diego Navy Broadway Complex Coalition ("Coalition"), appealed CCDC's decision of "no further environmental review" to the City, which the City denied. The Coalition then filed a lawsuit alleging that the City violated CEQA by deciding that no further environmental review was required. The trial court denied the Coalition any relief. The Coalition appealed. The Coalition's principal argument on appeal was that the CCDC violated CEQA when it determined that no further review of the EIR was necessary. The Coalition also argued that the EIR failed to evaluate potential impacts of the project on a variety of environmental issues including the project's potential greenhouse gas emissions and vulnerability to climate change.

In affirming the trial court's ruling, the court of appeal concluded that only environmental concerns which can be "meaningfully addressed" by a public entity need to be addressed in an EIR. Specifically, a public entity is required to address an issue only when that entity has actual authority to specifically address or respond to the environmental issue.

The court of appeal specifically held that the City was not required to include an analysis concerning the project's impact on greenhouse gas emissions or climate change in the EIR. The court concluded that when an agency has no authority to modify a proposed project based on an analysis of a specific environmental issue in an EIR, there is no basis for requiring that agency to prepare an analysis of that issue. Here, the CCDC's discretionary review of the project was limited to analyzing its aesthetics. As such, because neither the CCDC nor the City had the authority to evaluate, let alone alter the project based on its potential impact on climate change, an analysis of climate change would have been a "meaningless exercise", and therefore was not required by CEQA.

Real Estate

Brandon D. Saxon



Real Estate

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