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Environmental Group Can Sue Over San Jose General Plan EIR

In a new opinion, the Sixth District Court of Appeal has unraveled a confusing set of events surrounding the certification of the environmental impact report for San Jose's new general plan, concluding that an environmental group exhausted all administrative remedies and can sue over the EIR.

The California Clean Energy Committee sued over the certification of the EIR, saying that it should not be penalized because of the confusing way San Jose certified the EIR. The Sixth District agreed.

Under the San Jose municipal code, the city planning commission is empowered to certify EIRs. However, the CEQA Guidelines, § 15025, subd. (b)(1), say that the decisionmaking body for a project cannot delegate the authority to certify the EIR to an "inferior" body. There's no conflict on most entitlements, where San Jose's planning commission is the final decisionmaking body and applicants have the right to appeal to the city council. But in the case of the general plan, the planning commission's role is advisory. The decisionmaking body in that case was the San Jose City Council.

Nevertheless, in approving Envision San Jose, the city at first followed the procedure called for in the municipal code. The draft EIR was released and comments by groups such as the California Clean Energy Committee were presented to the planning commission. The committee's letter covered a wide variety of topics, including traffic, energy conservation, and the city's ability to finance all the proposed actions. Following the municipal code, the planning commission certified the EIR. But of course the planning commission didn't have power to approve the plan. Rather, the commissioners made recommendations to the city council.

Subsequently the city council approved the general plan. However, the council also certified the EIR.

The Clean Energy Committee subsequently sued, claiming the EIR was inadequate and should have been recirculated. The city argued that the Clean Energy Committee  had not exhausted its administrative remedies because neither the committee – nor anyone else – appealed the planning commission's certification of the EIR. The committee argued, essentially, that it was not possible to appeal the EIR certification because, under the municipal code that certification was final. The committee also argued that the planning commission certification was not legal and that the city council's certification was done with knowledge of the committee's comments.

The Sixth District ruled for the committee. "We conclude that the EIR was not properly certified by the planning commission, as the planning commission could not be delegated the duty to certify a final EIR given that it is not a decisionmaking body with respect to the Envision San Jose project," the court wrote, adding: "We conclude that CCEC exhausted its administrative remedies with respect to the challengest o the sufficiency of the EIR and CCEC?s argument that the draft EIR should have been recirculated, as these points were adequately raised with the city council via CCEC?s comment letter."

The San Jose case was a good example of a case in which one side – the city in this situation -- had to make a tortured argument in order to defend its actions. 

Under Section 15090 of the CEQA guidelines. certification of a final EIR requires the lead agency to certify that:

1. The final EIR has been completed in compliance with CEQA; 

2. The final EIR was presented to the decision-making body of the lead agency, and that the decision-making body reviewed and considered the information contained in the final EIR prior to approving the project; and 

3. The final EIR reflects the lead agency's independent judgment and analysis. 

The municipal code states that once the planning commission has certified the EIR, it may then either act on the matter at hand or make recommendations to the city council.

In court, San Jose made the argument that certification in the case of the Envision San Jose plan was bifurcated. The planning commission, the city argued, provided certification of #1 above, while the city council provided certification of #2 and #3.

The court saw through this tactic and basically concluded that the municipal code did not comply with the CEQA guidelines.

"For all intents and purposes," the court wrote, "the certification of the final EIR by the planning commission is meant to be final for the purposes of CEQA, as the San Jose Municipal Code provides that after the planning commission ‘certifies the final EIR, it may then immediately act or make recommendations on the project associated with the EIR.'"

The court added: "An alternate reading of the municipal code would produce a strange result where the planning commission has made only one out of the three required findings under CEQA Guidelines section 15090, subdivision (a), for all projects requiring CEQA approval, with no provisions for further CEQA certification by the planning commission or the lead agency. Logically, the planning commission would not be able to ‘immediately act' if it did not make all three of the requisite findings under CEQA Guidelines section 15090, subdivision (a)."

The case (unpublished): California Clean Energy Committee v. City of San Jose, Sixth District Court of Appeal Docket # H038740