By Kurt Whitman and Daniel Warren

In a recently published opinion (Southwest Regional Council of Carpenters v. City of Los Angeles), the Second District Court of Appeal (Court) reversed a trial court judgment and held that an Environmental Impact Report (EIR) contained an adequate project description for a proposed mixed-use development, and the Final EIR did not require recirculation, despite the lead agency’s approval of a project alternative that was not previously included in the Draft EIR. The Court’s opinion is both instructive and validating for lead agencies and project proponents in the context of environmental review under CEQA, as it recognizes how a project inherently evolves over the course of the EIR process.   

Background

The project, located in the City of Los Angeles (City), was initially proposed as a mixed-use commercial and residential development, including the construction of seven buildings consisting of 422 residential units (387,000 square feet), 200,000 square feet of commercial space (including a grocery store and theater complex), and a multi-story parking structure for 1,690 vehicles. A Draft EIR for the project was circulated in April 2017 and evaluated four alternatives, including the required “No Project” alternative.

During the public comment period, the Southwest Regional Council of Carpenters and Laborers’ International Union of North America, Local 300 (collectively, Petitioners) recommended that the City adopt an alternative with reduced traffic impacts and related mitigation measures.

The City considered all comments and released a Revised Draft EIR (RDEIR) in August 2017, which further addressed traffic impacts but contained the same project description and alternatives. Petitioners’ comments on the RDEIR reiterated concerns regarding traffic impacts and recommended that the City adopt the “Reduced Project” alternative consisting of 283 residential units (257,300 square feet), 134,000 square feet of commercial space, and 1,132 parking spaces.

In February 2018, the City issued its Final EIR (FEIR) for the project, which again contained the same project description but included a new, fifth alternative. The new alternative consisted of an increase in residential units (675 units comprising 615,000 square feet) and a reduction in commercial space (60,000 square feet). The new alternative removed the grocery store, theater complex, and parking structure and proposed 1,200 parking spaces. City staff subsequently recommended an even smaller version of the new alternative, consisting of 623 residential units (approximately 515,000 square feet) and 60,000 square feet of commercial space (60,000 square feet). In August 2018, the City certified the FEIR and adopted City staff’s recommended reduced alternative as the final project.

Petitioners challenged the City’s actions under CEQA, alleging, among other things, that the FEIR did not contain an adequate project description because the DEIR, RDEIR, and FEIR did not describe the final project adopted by the City. The trial court agreed, finding that the project description was impermissibly unstable and that the number of residential units and amount of commercial space in the approved project were “materially different” from the initial project description and its alternatives. The trial court specifically took issue with the fact that the project, as finally approved, was never subject to a formal comment period. The trial court ordered that the FEIR certification and finally approved project be set aside, and a new or supplemental EIR be prepared and circulated for public comment.  

The City appealed the decision, arguing that the project description was not unstable and that the trial court erred in applying a “materially different” standard rather than applying the “significant new information” test required for recirculation under CEQA Guidelines section 15088.5.  

Project Description

In its decision, the Court recognized that an accurate project description is an essential component (the “sine qua non”) of an informative and legally sufficient EIR. The Court concluded that “a stable description permits informed public participation in the environmental review process.  Without that, the purposes of CEQA are nullified and the statute is violated.”  

After reviewing applicable case law, the Court held that the City did not violate CEQA’s requirements of an accurate, stable, and finite project description. From its inception, the project was a mixed-use commercial and residential development on a defined project site. Although the project description, its alternatives, and the finally approved project all contemplated various ratios of commercial and residential space, they all shared the same footprint, were very similar in scope and use, and did not have widely varying environmental impacts. While it was true that the public did not have an opportunity to comment on the finally approved project, the Court noted that there was extensive commentary on the original alternatives and such comments were taken into account when preparing the FEIR. The Court also noted that nothing in CEQA requires a lead agency to afford the public the opportunity to provide comments on the actual project before approval. In acknowledging the current housing shortage, the Court declined to impose this type of requirement when it is not explicitly stated in CEQA.

Recirculation

The Court next addressed the “materially different” standard applied by the trial court and the requirement to recirculate the EIR for further public review and agency consultation in the context of CEQA Guidelines section 15088.5 (although the Court stated that Petitioners had waived any right to argue the issue).

The Court cited relevant case law to recognize that the recirculation requirement is not automatically triggered by merely “new information” included within a Final EIR. A Final EIR will almost always contain new information given the statutory requirement to circulate the Draft EIR and receive and respond to public comments prior to certification. As CEQA Guidelines section 15088.5(a) makes clear, recirculation is only required when “significant new information” is added and deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental impact, or a feasible way to mitigate or avoid such an effect that the project proponent has declined to implement. The Court applied a substantial evidence standard to evaluate the City’s decision not to recirculate, with reasonable doubts resolved in favor of upholding the City’s decision.

In applying the Section 15088.5 standard, the Court held that the finally approved project was not considerably different than other alternatives previously analyzed in the DEIR. Conversely, the final project was substantially similar to the previously analyzed alternatives and did not constitute “significant new information” required for recirculation. The Court refused to impose the “materially different” standard advanced by Petitioners, stating that “we should not strain to require recirculation under the guise of an unstable project definition or by relying on a ‘materially different’ standard not present in CEQA, for by doing so, we engraft unnecessary requirements that CEQA does not sanction.” The Court therefore agreed with the City’s arguments and reversed the judgment of the trial court.

Conclusion

Lead agencies and project proponents should always consult with their respective land use counsel to consider whether new alternatives derived after the Draft EIR should be presented for further public comment.  However, as supported by this case, the consideration of additional alternatives after a Draft EIR has been circulated does not necessarily render a project description unstable or require recirculation, so long as the EIR otherwise meets CEQA’s informational requirements, properly mitigates against environmental impacts, and falls within the scope of the project analyzed in the Draft EIR.

If you would like to know more about this case, CEQA, or other laws affecting development, please reach out to the authors of this alert or any other member of Mitchell Chadwick’s land use team.

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