On May 22, 2007, the Napa County Superior Court issued its ruling in American Canyon Community United for Responsible Growth et al. v. City of American Canyon et al. (Napa County Superior Court Case No. 26-27462), approving the City’s “addendum” to the previously approved mitigated negative declaration, and thereby authorizing the partially constructed and approved Wal-Mart supercenter in American Canyon to proceed with construction and operations. The court’s ruling is significant in part because it rejected the petitioners’ novel claim that the City was required to perform “supplemental” environmental review of the project’s potential impacts on climate change in response to the California legislature’s recent enactment of Assembly Bill 32.
The court’s decision is consistent with the Sacramento Superior Court’s recent decision in Natural Resources Defense Council et al. v. Reclamation Board of the Resources Agency of the State of California (Sacramento Superior Court Case No. 06-CS 01228, April 27, 2007), in which that court similarly rejected the petitioners’ contention that the lead agency was required to perform supplemental environmental review of the project’s potential climate change impacts.
The decisions in NRDC and American Canyon represent the first California court decisions addressing lead agencies’ obligations to analyze climate change impacts under CEQA. Both cases, however, address the agency’s duties in the limited context of assessing whether supplemental environmental review is required under section 21166. The scope of lead agencies’ responsibilities in the context of a project’s initial environmental review is an issue currently pending in multiple CEQA lawsuits.
The American Canyon case involves CEQA claims that were first filed by two groups of petitioners in November 2004 in response to the City’s approval of entitlements for a Wal-Mart supercenter for Phase II of the Napa Junction mixed use project in American Canyon. The petitioners claimed that the identification of the Wal-Mart supercenter as the end user for Phase II of the project constituted a material change to the originally approved project, as analyzed in the City’s adopted mitigated negative declaration, that required supplemental environmental review pursuant to Public Resources Code section 21166 (“section 21166”).
The trial court denied the petitions in July 2005. But in November 2006, the Court of Appeal reversed the trial court’s decision. The Court of Appeal held that the City’s finding that supplemental environmental review was not required under section 21166 was not supported by substantial evidence because the City had failed to accurately identify the changes to the Project entailed in Wal-Mart’s applications. The Court of Appeal instructed the City to re-determine, based on an accurate identification of the project changes, whether supplemental environmental review was required for the proposed supercenter.
On remand, the City determined after considerable additional environmental studies that supplemental environmental review of the proposed supercenter in the form of an EIR or additional negative declaration was not authorized under section 21166. On April 24, 2007, the City re-approved the project and adopted an initial study and addendum to the previously adopted mitigated negative declaration. On April 26, 2007, the City submitted its “return” to the writ of mandate, requesting that the trial court “discharge” the writ and dissolve the court’s stay that was imposed on the partially constructed supercenter pending the City’s compliance with the writ of mandate.
Petitioners objected to the City’s addendum in part based on its failure to analyze the supercenter’s impacts on climate change. Petitoners argued that the California legislature’s recent enactment of AB 32 constituted “new information” within the meaning of section 21166, imposing a requirement on the City to conduct supplemental environmental review of the Project’s impacts on climate change. The court, however, rejected Petitioners’ argument.
The court held that AB 32 imposed no obligation on the City to perform supplemental environmental review under CEQA. The court explained: “AB 32 simply charges the California Air Resources Board to develop regulations on how the state would address climate change impacts. While it is possible that the promulgation of new climate change regulations may trigger further environmental review of projects undergoing section 21166 scrutiny in the future, the court fails to see how a mere legislative mandate for the creation of regulations could have triggered review under section 21166 in the City’s re-approval of this Project.”
Additionally, the court held that “new information” within the meaning of section 21166 must be specific to the project. The court explained: “CEQA Guideline 15162, which augments section 21166, clarifies that ‘new information’ must show something about the particular project’s effects, i.e. that the project will have one or more significant effects not discussed in the previous negative declaration. New legislation requiring creation of state regulations certainly does not pertain to this particular Project or its effects. Thus, the court concluded that AB 32 is not the kind of ‘new information’ contemplated by section 21166.”
For more information please contact Arthur J. Friedman. Arthur Friedman is a partner in the Land Use, Environmental and Natural Resources Practice Group in the firm’s San Francisco office.