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California Supreme Court Rejects Save Our Neighborhood v. Lishman’s ‘New Project’ Test For Subsequent Review under CEQA

In a unanimous decision, the California Supreme Court rejected the notion that public agencies should get no deference in deciding whether to treat proposed projects as changes to previously reviewed projects or as entirely new projects under the California Environmental Quality Act (CEQA). In doing so, the Court disagreed with the reasoning of the Third District Court of Appeal in Save Our Neighborhood v. Lishman, 140 Cal.App.4th 1288 (2006) (Lishman), which first articulated the “new project” threshold test as a de novo question of law for the courts. [Friends of the College of San Mateo Gardens v. San Mateo County Community College District, ___Cal.5th___, Case No. S214061 (Sept. 19, 2016).]

The Supreme Court’s decision provides clarification regarding the operation of CEQA’s “subsequent review” provisions and resolved a sharp split in authority. The Supreme Court unequivocally rejected the “new project” test articulated in Lishman, and held instead that an agency’s determination to proceed under CEQA’s subsequent review provisions is reviewed under the deferential substantial evidence standard. While the previous split in authority may have caused some hesitancy on the part of agencies and project proponents to utilize CEQA’s subsequent review provisions to account for project changes, particularly when the previous document was a negative declaration, agencies can now be more confident in their determinations.

(Chris Stiles)