In Citizens for a Sustainable Treasure Island v. City & County of San Francisco, No. A137828 (Cal. Ct. App. 1st Dist., July 7, 2014), the First Appellate District upheld an environmental impact report (“EIR”) for the renovation of Treasure Island in San Francisco Bay.  Citizens for a Sustainable Treasure Island (“CSTI”) argued that the City and County of San Francisco (“City”) and Treasure Island Development Authority (“TIDA”) should have prepared a program EIR for the Treasure Island/Yerba Buena Island Project (the “Project”).

The Project includes up to 8,000 homes, 25 percent of them classified as below-market affordable housing, along with commercial and office buildings, 500 hotel rooms, a ferry terminal, and 300 acres of parks, playgrounds and open space, and is scheduled to take 15 to 20 years to complete.

CSTI asserted the EIR should have been a program EIR, not a project-level EIR, because there is insufficient detail about various aspects of the Project, including remediation of hazardous materials, building and street layout, historical resources and tidal trust resources, for “project-level” review.

The First District disagreed, stating that CSTI was improperly focused on the EIR’s title rather than its substance. The “level of specificity of an EIR is determined by the nature of the project and the ‘rule of reason’, rather than any semantic label accorded to the EIR.” (Slip Op. at p. 8 [citing California Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 271, fn. 25].) The First District said the question is not whether a program EIR should have been prepared for this Project, but instead, whether the EIR addressed the environmental impacts of this Project with a “degree of specificity” consistent with the underlying activity being approved through the EIR. Here, the Court found the EIR contained all available information about the Project, while providing for flexibility needed to respond to changing conditions and unforeseen events.

CSTI also argued the EIR was prepared as a project EIR to circumvent the fair argument standard of review that would have been applied to a program EIR for evaluating whether subsequent environmental review is necessary. However, the First District found that argument was flawed because the same substantial evidence standard applies to subsequent environmental review for a project reviewed in a program EIR or a project EIR.

The First District also found that CSTI failed to show that meaningful public comment was thwarted, and no new information identified new significant adverse impacts, thus, recirculation was not warranted.

Authored by Parissa Florez (