Jones v. Regents of University of California, No. A123948, (Apr. 7, 2010) available at CourtWebsite(decision); modified by No. A123948M (Apr. 8, 2010) available at CourtWebsite(order modifying).
A group of citizens opposed the certification of an EIR for the development of a laboratory facility operated by the University of California located on land owned by the UC Board of Regents ("Regents"). They alleged that the analysis of alternatives was inadequate in the EIR, and recirculation of the EIR was necessary after adding significant discussion related to impacts from the emission of greenhouse gases. The court found in favor of the Regents on each of these issues.
The court found that the Regents needed not consider every conceivable alternative to the project in the EIR, including the “so-called ‘true no-hillside growth’ alternative” asserted by the plaintiffs, which would have required all growth to occur on a satellite campus, rather than at the laboratory. On this issue, the court concluded that the range of alternatives was sufficient and that the EIR contained substantial evidence supporting the conclusion that the proposed off-site alternative would not meet the proposed project’s objectives.
The Draft EIR had not discussed the project’s potential for climate change as a result of greenhouse gas emissions. In response to public comments, the Final EIR added a discussion about the project’s potential for increasing such emissions and concluded that the cumulative impacts from the project’s contribution to emissions would be less than significant. In an unpublished part of the court's decision, the court noted that the plaintiffs had argued that the revisions constituted “significant new information,” and that the Regents had failed to provide adequate notice for providing further public comments related to the Final EIR. The court of appeal, however, found that the plaintiffs had not raised the issue of “recirculating the EIR” during the administrative proceedings, and that adequate notice had been provided for public comments in a letter that was issued by the laboratory. The letter indicated when the certification of the EIR would occur, where copies of the Final EIR could be reviewed, and the name and information for contacting the Regents. The court noted that the City of Berkeley and Sierra Club had provided comments related to the Final EIR, but that neither had suggested recirculation of the EIR in light of the greenhouse gas discussion. Therefore, the Regents had complied with CEQA’s notice requirements, and the plaintiffs had failed to exhaust their administrative remedies on the issue of whether the Regents were required to recirculate the EIR after adding the discussion about greenhouse gas emissions.
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