Third District Court of Appeal Upholds Supplemental EIR for Desalination Plant in Unpublished Decision
In an unpublished decision, the Third District Court of Appeal upheld a supplemental EIR prepared by the California State Lands Commission (SLC) for a desalination plant located in the City of Huntington Beach. (California Coastkeeper Alliance et al., v. California State Lands Commission, Apr. 8, 2021, No. C088922; 2021 WL 1310816.) The appellate court notes at the outset of its decision that the parties “sharply dispute[d]” the appropriate standard of review for the case: de novo review or review for substantial evidence.
The original desalination plant for the project site at issue was originally proposed in 1999 and would have an approximately 50 million gallon per day capacity. The City of Huntington beach certified an EIR in 2006. In addition, the City certified a subsequent EIR in 2010 to consider changes to the source of sea water for the desalination plan. In 2017, the SLC determined that proposed lease modifications to the desalination plant site could involve new significant environmental impacts or a substantial increase in the severity of previously identified impacts. Therefore, the SLC, acting as a responsible agency, concluded that it would prepare a supplemental EIR pursuant to the CEQA Guidelines section 15163 (California Code of Regulations, title 14).
The 2017 supplemental EIR was 2,816 pages long, and only addressed the lease modifications to the 2010 EIR. The SLC adopted a statement of findings and overriding considerations and certified the supplemental EIR at a public hearing. Petitioners filed a writ of mandate, arguing that the SLC was required to prepare a subsequent rather than a supplemental EIR, and that the SLC was required to assume the role of lead agency. Plaintiffs also argued that the approach taken by the SLC improperly piecemealed CEQA review. The trial court denied the petition for writ of mandate.
On appeal, the Third District concluded that substantial evidence supported the SLC’s decision to proceed pursuant to CEQA section 21166 based on the relevance and informational value of the 2010 subsequent EIR. In addition, the appellate court upheld the SLC’s decision to prepare a supplemental EIR rather than a subsequent EIR, based on substantial evidence supporting the SLC’s determination that a supplemental EIR was appropriate pursuant to CEQA Guidelines section 15163. Next, the appellate court concluded that the SLC appropriately prepared a supplemental EIR as responsible agency, rather than assuming the role of lead agency for the entire project, pursuant to CEQA Guidelines section 15052. Finally, the appellate court rejected the claims that the SLC improperly piecemealed CEQA review by preparing a supplemental EIR. The supplemental EIR incorporated and updated the 2010 subsequent EIR, and the court considered the two documents “a comprehensive whole.”