Citizens’ Committee to Complete the Refuge v. City of Newark

The California Court of Appeal affirmed a trial court decision finding that the City of Newark did not violate the California Environmental Quality Act (CEQA) when it approved a housing development of 469 units next to San Francisco Bay in reliance on an environmental impact report (EIR) previously prepared for a specific plan for the area that included up to 1,260 residential units, a golf course, and related facilities. Among the arguments rejected by the appellate court was a contention that new information about the amount and rate of sea level rise since preparation of the EIR should have required consideration of whether the project’s interactions with wetlands would exacerbate the effects of sea level rise. The court found that such dynamics were “not new in relation to this project” and that the new information showing an increased rate of sea level rise “does not make the impacts of thwarted wetland migration substantially more severe in a way that would trigger” requirements for additional review. The court also rejected the argument that the City had improperly deferred consideration of mitigation measures to respond to sea level rise. The court said the CEQA review was not required to discuss effects of sea level rise on the project at all since sea level rise was not an environmental impact caused by the project. The court also concluded that potential responses to sea level rise decades in the future could not be considered part of the current project and therefore did not have to be addressed in the CEQA review.