July 29, 2011

CEQA Update: Recent Opinion Provides Guidance on Climate Change, Water Supply Assessments and Exhaustion of Administrative Remedies

Holland & Knight Alert
Chelsea Maclean

The Fourth District Court of Appeal recently issued a notable opinion, Citizens for Responsible Equitable Environmental Development v. City of San Diego (2011) 196 Cal.App.4th 515. The opinion clarifies the following:

  • A Supplemental Environmental Impact Report (SEIR) is not required to evaluate drought and climate change impacts where there is no evidence of changed circumstances, new information, or deleterious environmental effects.
  • Where the public water supplier is the lead agency under the California Environmental Quality Act (CEQA), it is appropriate to incorporate and approve a Water Supply Assessment (WSA) as part of the corresponding CEQA document, rather than in a separate approval.
  • General, unelaborated objections in a last-minute comment letter do not satisfy the exhaustion of administrative remedies doctrine.

The opinion is significant in that it provides guidance on the application of existing rules under the Water Code and CEQA to climate change and water supply analysis, two areas of concentrated public interest, as well as the standard for exhaustion of administrative remedies, an area of some uncertainty in the context of litigation under CEQA.


Citizens for Responsible Equitable Environmental Development (CREED) challenged the City of San Diego’s (the “City”) certification of an addendum for a residential development project. The addendum relied upon a 1994 final environmental impact report (FEIR) for a mixed-use development precise plan. CREED alleged that the City did not follow the statutory procedure in adopting a WSA required by the Water Code and CEQA, and that new information on drought and the effect of greenhouse gas emissions on climate change required a SEIR. The appellate court affirmed the trial court’s judgment in holding that CREED failed to exhaust administrative remedies and that notwithstanding the failure to exhaust remedies the court would have held for the City on the merits.

Climate Change Analysis

For the first time in an appellate decision, the court held that the City was not required to prepare an SEIR where an appellant claimed there was “new information on the nexus between greenhouse gas emissions and climate change.” The court:

  • explained that an SEIR is not required absent new information under Public Resources Code section 21166(c)
  • reviewed case law explaining that climate change and carbon dioxide emissions have been studied by the federal government since the 1970s and that the effects of climate change, including impacts on California, have been litigated since the 1990s
  • concluded that the effect of greenhouse gas emissions could have been raised in 1994 when the City considered the FEIR

Accordingly, the court held that there was no evidence of changed circumstances, new information, or deleterious environmental effects; therefore, the City was not required to prepare an SEIR. As the issue of climate change is one of the most rapidly evolving and controversial topics in the realm of CEQA review and CEQA case law, the holding provides helpful guidance for similar factual scenarios.

Water Supply Assessment Procedures

The opinion also provides guidance on the timing, notice and procedures required to approve a WSA where the public water supplier is also the lead agency. The court held that:

  • the City (as the public water supplier and lead agency) certification of an addendum that discussed and incorporated the WSA appropriately constituted approval of the WSA
  • the WSA statute did not require the City to approve the WSA before it was included in the addendum
  • notice of the WSA separate from notice of the CEQA hearings was not required

The three holdings provide guidance for those situations in which the public water supplier is the same entity as the lead agency and are distinguishable from other WSA opinions, which addressed compliance with the WSA statute when the public water supplier is an independent water district separate from the lead agency.

Exhaustion of Administrative Remedies Doctrine

The court held that CREED failed to exhaust administrative remedies in connection with claims related to drought and climate change when it submitted only general and cursory comment letters accompanied by digital video discs (DVDs) with several thousand pages of documents and data the day of the final City council hearing. The court concluded that CREED’s voluminous, last-minute submittals failed to fairly present evidence to the City. This holding is notable in that it questions the legitimacy of general, cursory and last-minute submittals tendered outside the statutory comment period.

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