Use With Subsequent Projects

Once a Master EIR has been certified, a subsequent project may avoid the need for a further EIR or Negative Declaration when the Lead Agency finds that the project was described in the Master EIR as being within its scope (Section 21157.1, Guidelines Section 15177). The Lead Agency for the subsequent project must have been either the Lead Agency for the Master EIR or a Responsible Agency identified in the Master EIR.

Initial Study

When a later development proposal is received, the Lead Agency must prepare an initial study to analyze both of the following:

1. Whether that proposal may cause any additional significant effect on the environment not examined in the Master EIR; and
   
2. Whether the proposal is within the scope of the Master EIR.

A project will be considered "within the scope" of the Master EIR if it is described within that document and will:

1. Have no additional significant effect on the environment that was not identified in the Master EIR; and
   
2. Require no new or additional mitigation measures or alternatives. (Section 21157.1(c))

When the Lead Agency for the proposal is able to make a written finding, based on the initial study, that the subsequent project is within the scope of the project covered by the Master EIR (i.e., the plan or program), no further EIR or Negative Declaration is required. Pursuant to Section 15177 of the CEQA Guidelines, "[w]hether a subsequent project is within the scope of the Master EIR is a question of fact to be determined by the lead agency." This finding must be supported by substantial evidence in the record.

Prior to carrying out the subsequent project on the basis of the Master EIR, the Lead Agency must:

1. Adopt the above finding;
   
2. Incorporate all feasible mitigation measures or feasible alternatives appropriate to the project, as set forth in the Master EIR; and
   
3. Provide public notice pursuant to Section 21092 (Guidelines Section 15087) that it intends to use the Master EIR for the project.

When the project is approved, the Lead Agency must file a Notice of Determination. The agency is not required to make findings under Guidelines Section 15091.

Subsequent Projects Outside the Scope of the MEIR

When a Lead Agency cannot find that the project is within the scope of the MEIR, it must prepare either a mitigated Negative Declaration or an EIR for the subsequent project. Whether the "fair argument" standard or the "substantial evidence" standard applies in this situation is uncertain. The provisions for preparation of a later EIR indicate that an EIR or Focused EIR is required if the subsequent project "may have a significant effect on the environment" (Section 21157.5(b)). This language is identical to the statutory language which is the basis for court decisions establishing the "fair argument" standard (see Sections 21080 and 21151). That standard provides that an EIR must be prepared whenever it can be fairly argued on the basis of substantial evidence that a significant adverse effect may result, even when other evidence exists to the contrary. A Negative Declaration is prepared when no substantial evidence exists, including situations when potentially significant effects identified in the initial study can be avoided or mitigated by revisions in the project.

However, in the 1993 Laurel Heights decision, the California Supreme Court indicated that the fair argument standard derived from both the statutory language and policies underlying Section 21151, and for this reason, applies "only to the decision whether to prepare an original EIR or a negative declaration." (Laurel Heights Improvement Association v. Regents of the University of California, supra) Applied here, this may mean that fair argument does not apply once a Master EIR has been prepared if the Master EIR can be construed as the "original EIR" for a subsequent project. In other words, if the project is within the scope of the Master EIR.

At the same time, Section 21157.5 neither references nor closely resembles Section 21166 which establishes the criteria for determining whether to prepare a subsequent or supplemental EIR. Determinations pursuant to Section 21166 are subject to the "substantial evidence" standard; meaning that the decision of the lead agency not to prepare an EIR will be upheld when it is supported by substantial evidence, regardless of the existence of a fair argument to the contrary. The language of the statute does not clearly establish that the substantial evidence test applies to Section 21157.5.

Given this statutory uncertainty, OPR recommends that agencies adopt the cautious practice of applying the fair argument standard to the determination of whether a Negative Declaration or EIR, including a mitigated Negative Declaration or a Focused EIR, is required for a subsequent project, which is not within the scope of the Master EIR.

Projects Identified in the Master EIR

The CEQA Guidelines and the statute itself create two broad categories for the subsequent projects which are not within the scope of the Master EIR. The first category consists of projects which are outside the scope, but which nonetheless were identified in the MEIR and whose cumulative impacts, growth-inducing impacts and irreversible significant effects were adequately analyzed in the MEIR. These projects may be addressed by preparing either a mitigated Negative Declaration or a Focused EIR, depending upon whether their possible impacts can be fully mitigated or not. Guidelines Section 15178(b) requires that a mitigated Negative Declaration be prepared for any proposed subsequent project if both the following occur:

1. The initial study identifies potentially new or additional significant environmental effects that were not analyzed in the Master EIR, and
   
2. Feasible mitigation measures or alternatives will be incorporated into the subsequent project before the mitigated Negative Declaration is released for public review, in order to avoid or mitigate potential effects to a level of insignificance.

Notice requirements, comment periods, and other procedures for preparation and review of a mitigated Negative Declaration prepared under Section 15178 are the same as for any other Negative Declaration. However, the findings made by the Lead Agency upon adoption of the mitigated Negative Declaration should specifically integrate items (1) and (2) above.

Guidelines Section 15178(c) also requires that if there is substantial evidence in light of the whole record that the subsequent project may have a significant effect on the environment, and a mitigated Negative Declaration cannot be prepared, the Lead Agency must prepare a Focused EIR. The requirements for Focused EIRs are discussed in detail in the next chapter.

Projects Not Identified in the Master EIR

Projects that were not identified in the Master EIR are subject to the usual CEQA process (as described under CEQA Guidelines Sections 15080 ­ 15096) and are ineligible for the limited environmental review available under the MEIR (see CEQA Guidelines Section 15178(e)). Such projects may require the preparation of a Negative Declaration, a mitigated Negative Declaration, or an EIR, depending upon the circumstances. To the extent feasible, the lead agency should tier the analysis of such projects upon the Master EIR.

The lead agency should keep track of all such projects and whether their approval may affect the adequacy of the Master EIR. As discussed earlier, the use of a Master EIR for projects that are identified therein may be called into question if the approval of a project that was not identified in the MEIR might affect its adequacy (CEQA Guidelines Section 15179).

In order to keep its Master EIR viable, when an EIR is prepared for a project that was not identified in the Master EIR, the lead agency should undertake to incorporate that EIR into the Master EIR whenever feasible. Neither CEQA nor the CEQA Guidelines delineate the procedure for doing this. One approach might be to use the project EIR as the basis for a subsequent EIR to be prepared for the next project that will be considered under the Master EIR.