Editor’s Note: the following is a Legal Alert from Best Best & Krieger. Originally posted here.

Government Bodies That Lack Authority to Approve Project Also Lack Authority to Certify Environmental Documents

Certifying an environmental impact report (EIR) for San Jose’s general plan was not a task properly delegated to the city’s planning commission, a state appellate court ruled last week. The decision, published last Wednesday by the Court of Appeal for the Sixth District, demonstrates that a government body lacking the authority to approve or disapprove a project also lacks the authority to certify or adopt environmental documents under the California Environmental Quality Act (CEQA).

In California Clean Energy Committee v. City of San Jose, the city’s non-elected planning commission certified an EIR for San Jose’s general plan, and recommended that the City Council later take action to approve the plan itself. The court considered whether the City Council had properly delegated the task of certifying the EIR to the planning commission. The court found that CEQA does not require that an EIR be certified by the lead agency’s elected officials and allows lead agencies to delegate that task to a non-elected decision-making body. Under CEQA, the court said, a “decision-making body” is “any person or group of people within a public agency permitted by law to approve or disapprove the project at issue.” Thus, the court held that CEQA allows a city council to delegate the certification of EIRs to non-elected decision-making bodies if the subordinate body also has been delegated authority to approve or disapprove (i.e., make a decision upon, as opposed to making a recommendation on) the project in question. Additionally, any decision made by the non-elected body must be appealable to the agency’s elected decision-makers.

In this case, the court found that San Jose’s municipal code did not give the planning commission the authority to take action on the general plan. Hence, the court concluded that the planning commission was not a “decision-making body” within the meaning of CEQA. Accordingly, the court ruled that the planning commission’s certification of the EIR was improper.

If you have any questions about this case or how it might impact your agency, please contact the authors of this alert listed here or any attorney in Best Best & Krieger LLP’s Environmental Law & Natural Resources practice group.

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Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.