In California Coastkeeper v. State Lands Commission, the Third District Court of Appeal upheld the State Lands Commission’s decision to prepare a supplemental environmental impact report (EIR) for a desalination plant in Huntington Beach, overturning an earlier trial court ruling that invalidated the EIR. Limited changes to a desalination project were proposed in order to comply with desalination-related amendments to the State’s Ocean Plan. Because the prior EIR retained informational value, and the proposed changes to the Project were minor, it was appropriate for the Commission, in its capacity as a responsible agency, to prepare a supplemental EIR under the California Environmental Quality Act (CEQA). After initially releasing its opinion informally, the Court on May 7, 2021, certified the opinion for publication.
Since 1957, the Commission has leased tide and submerged lands offshore of Huntington Beach for a once-through cooling system that draws seawater from the Pacific Ocean to cool a generating station, and then discharges the seawater back into the ocean. Poseidon Resource LLC (Poseidon) applied to the City of Huntington Beach for land use approvals to construct and operate a desalination facility on the site (Project). The City assumed the role of lead agency and prepared an EIR for the Project in 2005, but the Project was never built. In 2010 Poseidon submitted a modified application for co-located, stand-alone operations, and onshore facility and distribution pipeline revisions, leading the City to prepare a subsequent EIR.
In 2015, the State Water Resources Control Board amended its Water Quality Control Plan for the Ocean Waters of California (Ocean Plan) to address implementation provisions for desalination facilities (Desalination Amendment). The Desalination Amendment required the regional water quality control board to analyze new and expanded desalination facilities, looking at feasible alternatives for the best available site, design, technology and mitigation measures to minimize intake and the mortality of marine life. In 2016 and 2017, Poseidon proposed to modify its lease to add stainless steel wedgewire screens at the end of the seawater intake and install a three-port diffuser to enhance brine mixing with seawater and reduce seawater intake volume. The Commission determined that the 2010 subsequent EIR retained relevance and informational value and that only minor additions or changes would be necessary to ensure that the previous EIR was adequate in light of the changed circumstances due to the proposed facility modifications. So in 2017, the Commission prepared a supplemental EIR evaluating the proposed lease modifications, but did not evaluate impacts arising from the increase in the size of the Project evaluated in the 2010 subsequent EIR. The Commission approved the Project with a statement of overriding considerations, concluding that the impacts that could not be mitigated to a less than significant level were outweighed by the economic, legal, social, environmental, and technological benefits of the Project.
California Coastkeeper filed a Petition for Writ of Mandate alleging that the Commission violated CEQA by (1) “ignoring its requirement to conduct a Subsequent EIR rather than a Supplemental EIR”; (2) failing to assume the role of lead agency; and (3) conducting unlawful piecemeal review of the Project. The Court upheld the Commission’s decision to prepare a supplemental, rather than a subsequent EIR, as a supplemental EIR is appropriate if “only minor additions or changes would be necessary to make the previous EIR adequately apply to the project in the changed situation.” (CEQA Guidelines §§ 15163.) The 2010 subsequent EIR retained relevancy and informational value, and the Commission’s conclusion that the changes to the Project would necessitate only minor additions or changes to make the EIR adequate was supported by substantial evidence.
The Court expressly rejected Coastkeeper’s theory that, because the Commission was required to prepare a “subsequent EIR,” it was obligated to step into the role of lead agency under CEQA Guidelines section 15052(a)(2). However, because no subsequent EIR was required, the Court held that the Commission was within its discretion to prepare a supplemental EIR pursuant to CEQA Guidelines sections 15163 and 15096(f).
Lastly, the Court rejected Coastkeeper’s claims that because the supplemental EIR did not evaluate the project modifications in conjunction with the earlier increase in size, the EIR violated CEQA’s rule against piecemeal review. It is established that an EIR must evaluate “the whole of an action” and cannot split a project into smaller projects for the purpose of avoiding full environmental review. However, the 2017 supplemental EIR did not violate this principal because the 2010 EIR was never challenged and therefore presumed to comply with CEQA. As the Court emphasized in the oft-cited rule, “[t]he event of a change in a project is not an occasion to revisit environmental concerns laid to rest in the original analysis.” The supplemental EIR makes the previous EIR adequate for the project as revised, and the two are considered as a “comprehensive whole.”
This case adds to the body of law that supports both lead agency and responsible agency’s obligation to narrowly review the new impacts associated with a previously-approved project. CEQA does not require an agency to reevaluate impacts or alternatives already considered.