In Latinos Unidos de Napa v. City of Napa, the First Appellate District affirmed the City of Napa’s determination that it need not prepare an EIR to analyze revisions to the City’s housing element of its general plan because the environmental effects had previously been analyzed in a 1998 Program EIR.

Latinos Unidos de Napa (“Latinos Unidos”) challenged the City’s housing element revisions alleging that a supplemental EIR was required because a “fair argument” existed that the revisions would result in new significant environmental effects.  The trial court found that the City had properly proceeded under Public Resource Code section 21166 when it determined that the housing element revisions were within the scope of the 1998 Program EIR.

The question before the Court was whether the City’s decision not to prepare a supplemental EIR was subject to the “fair argument” test or the “substantial evidence test.”

Latinos Unidos argued that the City’s determination should be subject to the “fair argument” test, which requires an EIR on any project that “may have a significant effect on the environment.” Pub. Res. Code § 21151.  The fair argument standard creates a low threshold for requiring an EIR, reflecting a legislative preference for resolving doubts in favor of environmental review.

The City answered that the “substantial evidence” standard of review applied to its decision under Pub. Res. Code section 21166, which comes into play when in-depth review has already occurred, and the time for challenging the sufficiency of the original EIR has long since expired.

Courts have reached different conclusions about the appropriate level of judicial scrutiny to be applied to an agency’s determination whether to proceed under Pub. Res. Code section 21151 or 21166.  In Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288, 1297, the Third Appellate District held that this is a question of law for the court.  Subsequently, in Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385, Division Two of the Second Appellate District disagreed, holding that the substantial evidence test applies.

The Court agreed with Mani Bros., and elected to evaluate the City’s decision to proceed under Pub. Res. Code section 21166 using the “substantial evidence” test. . .

The Court agreed with Mani Bros., and elected to evaluate the City’s decision to proceed under Pub. Res. Code section 21166 using the “substantial evidence” test, finding that treating the issue as a question of law would undermine the deference due the agency.  Based on the evidence in the record, the Court concluded that the City’s decision to refrain from preparing an EIR was supported by substantial evidence.

In addition, the Court also concluded that Latino Unidos’ failure to fairly summarize the evidence in the administrative record supporting the City’s findings constituted a waiver of its right to challenge those findings.

This case provides two messages helpful to lead agencies.  First, the appellate courts appear to be trending toward consensus that when the lead agency determines that the project is within the scope of a previously certified EIR, the proper standard of review for that decision is the deferential substantial evidence test.  Second, this case adds to existing caselaw holding that a plaintiff failing to fairly summarize the evidence supporting the lead agency’s findings in its brief does so at its peril.

For more information about this decision or CEQA, please contact Environment, Land Use, and Natural Resources attorney Tim Taylor (