While the Project may Change, the Standard of Review should Remain the Same

by Linda C. Klein¹

INTRODUCTION

The California Environmental Quality Act (CEQA) encourages agencies to "tier" environmental analysis when possible, which means to rely on previously prepared environmental documents when those documents studied a project that is the same as or encompasses the subsequently proposed project. This approach is logical. If the agency has already considered the environmental impacts of its decision, there is no need for the agency to repeat the same studies. Repeating studies of environmental impacts that have already been adequately reviewed serves no purpose and wastes valuable resources. CEQA’s purpose is not to generate paper, but rather to compel government to make decisions with environmental consequences in mind.²

But what if the subsequent project is not the same as the original project? The agency must carefully determine whether the existing environmental review fully covered that subsequent project. The agency’s decision not to prepare a new environmental impact report (EIR) because the existing environmental review covers the potential impacts of the subsequent project is, of course, subject to legal challenge. This article explores the standard of review that applies when such challenges occur.