Deciphering the New CEQA Rules for Modified Projects After San Mateo Gardens
by Marina Cassio*
Projects must often be modified after completion of review under the California Environmental Quality Act ("CEQA"). This may be due to changing project finance availability, changing technology, a change of ownership, or any number of other circumstances. CEQA anticipates such changes, and does not require a modified project to restart the review process again from scratch. However, for some time now, plaintiff groups have been bringing CEQA challenges under the theory that a purportedly modified project was actually an entirely new project. A new project would require a new CEQA review process.
Last September, the California Supreme Court effectively put an end to this strategy. In Friends of the College of San Mateo Gardens v. San Mateo County Community College District,1 the Court was presented with the questions of how to tell the difference between a modified project and a new project, and who makes this determination. The Court concluded that this was a fact-bound inquiry given to the lead agency, entitled to substantial evidence deference, and that it mattered only whether the initial CEQA documents retained "some informational value" for the modified project. This renders the "new project" litigation strategy significantly less viable.
Interestingly, this aspect of the Court’s opinion is not what has generated such a wide range of reactions from CEQA practitioners and commentators. That distinction goes to the Court’s unanticipated reinterpretation of CEQA requirements for modified projects that were initially approved by a negative declaration. This portion of the opinion has stirred debate because the Court’s many endorsements of finality seem to contradict the Court’s reference to reapplying the "fair argument" test. However, the opinion appears internally consistent if the reintroduced fair argument standard is applied only to the potential impacts attributable to the incremental modifications to an existing project.