Legal Alerts Aug 07, 2015

Uncertainty of Legislative Earmarks Not Enough to Deem Mitigation Infeasible

California Supreme Court Takes on CEQA Issue in State College Expansion Project

Uncertainty of Legislative Earmarks Not Enough to Deem Mitigation Infeasible

State agencies cannot declare mitigation infeasible for construction projects on the grounds that the California Legislature has not — and may not in the future — earmark funds specifically for fair-share off-site mitigation costs, the California Supreme Court has held.

Earlier this week, the Supreme Court issued its opinion in City of San Diego v. Board of Trustees of the California State University. The case stems from the California State University Board of Trustees’ campus master plan for San Diego State University. To accommodate proposed growth of more than 11,000 new students and more than 1,200 new faculty and staff members, the master plan proposes a suite of major campus expansion construction projects. 

The environmental impact report for the project identified myriad near- and long-term traffic impacts at off-campus locations within the City of San Diego. For each affected location, the Board identified the improvements that would mitigate the impacts and estimated the project’s fair-share contribution of the mitigation costs. However, relying on dicta in the Supreme Court’s 2006 opinion in City of Marina v. Board of Trustees, the Board concluded that committing to paying those funds was infeasible. Specifically, the Board concluded that the availability of such funds was necessarily conditioned upon requesting and obtaining funds from the California Legislature. Because the decision to earmark such funding was out of the Board’s hands, the Board concluded that mitigation was infeasible and the traffic impacts were significant and unavoidable. 

The Court rejected the Board’s position and stressed that “mitigation is the rule,” regardless of whether the Legislature appropriated funds for the mitigation specifically, and regardless of whether the relevant impacts are on- or off-site. Any holding otherwise, the Court reasoned, would result in off-site mitigation being found infeasible for many, if not all, state projects. Ultimately, the Court directed the Board to prepare a new EIR citing the tenet that “CEQA does not authorize an agency to proceed with a project that will have significant, unmitigated effects on the environment … unless the measures necessary to mitigate those effects are truly infeasible.” 

In support of the City of San Diego, Best Best & Krieger attorneys filed an amicus brief in this case. BB&K is also counsel to a public agency client in a similar matter against the Board, which is now pending review in the California Supreme Court. 

For more information on how this decision may impact your public agency, please contact one of the attorney authors of this legal alert listed at right in the Environmental Law & Natural Resources practice group, or your BB&K attorney.

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