December 20, 2016

Reliance on 1998 EIR Under CEQA Upheld Based on Substantial Evidence

Holland & Knight Alert
Jennifer L. Hernandez

In The Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency, et al., California's First District Court of Appeal is the first appellate court to apply the California Supreme Court's holding in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937. The decision, filed on Nov. 29, 2016, is unpublished. A request for publication has been filed.

T-Line Loop Project

The T-Line Loop was designed in 1998 as part of the Third Street Light Rail Project, which extended the San Francisco Municipal Transportation Agency (Muni) light rail service to the Bayview area. It was included in the Third Street Light Rail Project's Environmental Impact Report (EIR). After construction of the Loop was halted for many years due to budget constraints, the Federal Transportation Agency awarded a $10 million grant to Muni in August 2013 to complete the Loop, as well as other roadway and surface improvements associated with the redevelopment of Mission Bay. Once completed, the Loop will allow trains to turn around for special events and to accommodate additional service between Mission Bay and the Market Street Muni Metro during peak periods. Construction of the Loop is now underway, and the decision was the final legal hurdle that needed to be cleared for the Loop to be completed.

Environmental Documentation

To confirm that the construction of the Loop did not require the preparation of a new environmental document (either a subsequent EIR, supplemental EIR or addendum to the EIR), Muni prepared a memo in 2012. The court said the memo "stated that the environmental impacts of the Loop had been analyzed in the FEIR [Final EIR]," and that although "two new housing developments had been built on 18th Street since certification of the FEIR" and "several new housing developments had been built along Third Street and in the 'near vicinity' since completion of the T-Third Line," these "new residential and commercial developments 'were assumed to occur in the area as part of the background growth in the [FEIR] analysis.' " Slip Opinion at 6. The San Francisco Planning Department agreed that no further assessment was required.

Muni submitted another memo to the Planning Department in 2014, asking it to review the Loop's environmental clearance under the California Environmental Quality Act (CEQA), given that the then-proposed Golden State Warriors arena would be constructed in the vicinity of the Loop. The Planning Department found that the Loop was "still covered by the Third Street Light Rail FEIR" and that "[n]o additional review is necessary." Muni cited this in its resolution proceeding with the project. Slip Opinion at 7.

Application of San Mateo Gardens

Opponents of the project argued that the 1998 EIR was outdated for construction that was scheduled to start in 2013 and did not adequately account for the Loop. Quoting San Mateo Gardens at 951, the court upheld the City and stated that "a decision to proceed under CEQA's subsequent review provisions must ... necessarily rest on a determination – whether implicit or explicit – that the original environmental document retains some informational value." Slip Opinion at 11-12. The court further relied on San Mateo Gardens when it noted that "[i]t is well established that under section 21166 we apply the deferential substantial evidence test in reviewing the determination that no further CEQA review was required for the Loop" and rejected the appellant's argument that a fair argument standard applied. Slip Onion at 16. In emphasizing that the appellant has the burden to show an absence of substantial evidence, the court held that the 2012 and 2014 memorandums constituted substantial evidence that the project had not been changed and upheld the City's implicit decision to proceed under section 21166 because the FEIR retained information value to the Loop. Slip Opinion at 12, 18-19.

The court, in this case, therefore affirmed under the San Mateo Gardens substantial evidence standard that agencies may continue to rely on a previous EIR, regardless of its age, so long as it retains information value.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.

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