In 2014, the appellate decision in California Clean Energy Committee v. City of Woodland (“CCEC”) caught many lead agencies and CEQA consultants off-guard, by holding that the type of energy impacts analysis conducted in many EIRs actually fails to comply with CEQA. EIRs prepared post-CCEC have generally included a much more in-depth analysis of energy impacts, to ensure compliance with that decision. But what to do about EIRs certified prior to CCEC, where further approvals are necessary or the EIR is being challenged? A recent decision by the First District Court of Appeal, Ukiah Citizens for Safety First v. City of Ukiah (June 21, 2016) rejects the use of an addendum to address the issue.

In 2011, Costco applied for a use permit and site rezone to allow construction of a 148,000-square-foot retail facility – including a warehouse store, over 600 parking stalls, and a 16-pump gas station – in the City of Ukiah. In December 2013 and January 2014, the City adopted the necessary rezoning legislation, certified the EIR, and adopted a statement of overriding considerations. Ukiah Citizens for Safety First, a local citizens group, filed suit to challenge the EIR in the Mendocino County Superior Court. Shortly after the suit was filed, the Third Appellate District issued its opinion in CCEC (225 Cal.App.4th 173). The City concluded that the CCEC decision required “a more detailed discussion of energy use than was previously understood at the time the EIR was certified,” and thereafter prepared an addendum and lodged the addendum with the trial court, in an effort to satisfy the more exacting standard articulated in CCEC.

Petitioner argued at trial that the EIR did not properly identify and analyze the project’s potentially significant energy impacts, and that the addendum prepared by the City – following certification of the EIR and approval of the project – was not properly a part of the administrative record concerning the EIR’s adequacy. However, the trial court took the addendum into consideration, found the energy impacts analysis to be adequate, and denied the petition in its entirety. Petitioner appealed.

The First District reversed, holding that the EIR did not adequately analyze the potential energy impacts of the project. The Court noted the requirements contained in Public Resources Code section 21100(b)(3) (an EIR must include a statement concerning mitigation measures “to reduce the wasteful, inefficient, and unnecessary consumption of energy”) and in section 15126.4 and Appendix F of the CEQA Guidelines (requiring EIR to consider “potentially significant energy implications of a project”). Here, the EIR did not contain a separate section analyzing energy impacts, but instead mentioned them throughout the EIR. Notably, the EIR did not include a calculation of the energy use attributable to vehicle trips generated by the project, or of the operational and construction energy use of the project, which the CCEC opinion found necessary to an adequate energy impacts analysis. The court concluded that the EIR held deficient in CCEC was “in all material respects the same” as the EIR for the Costco project.

The addendum prepared by the City to address the CCEC decision did not solve the problem. First, the addendum was prepared after the EIR was certified by the City. As such, the addendum was not a part of the administrative record concerning that certification and could not be considered by the court in evaluating the adequacy of the EIR. Second, subsequent approval of the addendum – even if it contained the necessary analysis of energy impacts – “does not cure the prior approval of an inadequate EIR.” Guidelines section 15164, which authorizes preparation of an addendum in certain circumstances, “assumes that the EIR previously certified was properly certified. The section does not authorize the retroactive correction of an inadequate EIR based upon the consideration of which the project was approved, by providing the additional necessary information about the environmental effects of the project after the project has been approved.”

The First District’s decision provides a warning that an addendum cannot be used to “fix” an EIR following project approval if the EIR itself is being challenged. An addendum may in some cases be used to address post-certification changes in the project or the circumstances surrounding the project, or new information concerning project impacts. But if the project has already been approved based on a deficient EIR – and therefore the approving body had no opportunity to consider the addendum, or to receive public comment on it – the information and analysis contained in the addendum cannot bootstrap the EIR into compliance.