On Monday morning, the Supreme Court will file its opinion in Friends of the College of San Mateo Gardens v. San Mateo County Community College District, which was argued on the early-May calendar. If the case was argued over four months ago and there’s a 90-day limit for issuing opinions, why hasn’t there been a decision yet? It’s because, a week after argument, the court vacated submission and asked for supplemental briefing. A new 90-day period started when the supplemental briefing was completed at the end of June.
The Friends case isn’t even the last early-May case to be decided. That honor goes to People v. Macabeo, in which the court is dealing with the aftermath of the U.S. Supreme Court’s (indirect) reversal of a California Supreme Court decision about warrantless cell phone searches. The court asked for post-argument supplemental briefing in Macabeo, too, but, unlike in Friends, the court waited until almost the 90th day after argument to order more briefing. Supplemental briefing was completed — and the 90-day clock restarted — just last week, so a decision is not due until early December.
This is the time of year when there’s usually a drought in Supreme Court opinions, because no cases are argued in July or August. That drought is occasionally broken by a trickle of opinions in cases, like Friends and Macabeo, when submission is vacated for supplemental briefing.
The Friends case raises this question: When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?
Not only did the court direct the parties to file supplemental briefs, it also requested a supplemental brief from the California Natural Resources Agency, with the Governor’s Office of Planning and Research. The additional briefs were to address: (1) Under California Environmental Quality Act (CEQA) Guidelines section 15162, what standard of judicial review applies to an agency’s determination that no environmental impact report (EIR) is required as a result of proposed modifications to a project that was initially approved by negative declaration or mitigated negative declaration? (See generally Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1479-1482.) (2) Does CEQA Guidelines section 15162, as applied to projects initially approved by negative declaration or mitigated negative declaration rather than EIR, constitute a valid interpretation of the governing statute? (Compare Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073-1074 with Benton at pp. 1479-1480.)
The Friends opinion can be viewed Monday starting at 10:00 a.m.
