1

Filed 7/7/14 

CERTIFIED FOR PUBLICATION 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIRST APPELLATE DISTRICT 

DIVISION FOUR 

CITIZENS FOR A SUSTAINABLE 

TREASURE ISLAND, 

 Plaintiff and Appellant, 

v. 

CITY AND COUNTY OF SAN 

FRANCISCO et al., 

 Defendants and Respondents; 

TREASURE ISLAND COMMUNITY 

DEVELOPMENT, LLC et al., 

Real Parties in Interest. 

 A137828 

 (San Francisco City & County 

 Super. Ct. No. CPF-11-511452) 

I. 

INTRODUCTION

 In this petition for writ of mandate, appellant Citizens for a Sustainable Treasure 

Island (CSTI) contends that respondents City and County of San Francisco (City)1

 and 

respondent and real party in interest Treasure Island Development Authority (TIDA)2

 1

 Respondents consist of the City and County of San Francisco, San Francisco 

Board of Supervisors, San Francisco Municipal Transportation Authority, San Francisco 

Planning Commission, San Francisco Public Utilities Commission, and the Treasure 

Island Development Authority. 

2

 In 1997, the City’s Board of Supervisors authorized the creation of TIDA, a 

nonprofit corporation, to act as a single entity focused on the planning, redevelopment, 

reconstruction, rehabilitation, reuse and conversion of former Naval Station Treasure 

Island located on Treasure Island and Yerba Buena Island. For simplicity’s sake, we will 

refer to TIDA as the Project developer. TIDA, together with the City, are the lead 

agencies responsible for the Project. 
2

failed to certify a legally adequate environmental impact report (EIR) for the Treasure 

Island/Yerba Buena Island Project (the Project), and therefore violated the California 

Environmental Quality Act (CEQA) (Pub. Resources Code, §§ 21000 et seq.).3

 The 

Project, which was unanimously approved by the City’s board of supervisors, is a 

comprehensive plan to redevelop a former naval station located on Treasure Island and 

Yerba Buena Island in the middle of San Francisco Bay into a new, mixed-use 

community with updated infrastructure and vastly increased open space and recreational 

facilities. 

 CSTI’s principal argument is that the EIR should have been prepared as a program 

EIR, not a project-level EIR, because there is insufficient detail about various aspects of 

the Project, including remediation of hazardous materials, building and street layout, 

historical resources and tidal trust resources, for “project-level” review. Furthermore, 

CSTI claims the project description was not sufficiently accurate and stable to meet 

CEQA’s requirements. CSTI also argues that significant new information developed 

after the draft EIR was circulated for public review, thereby requiring recirculation of the 

EIR for additional public comment. 

We conclude that CSTI has failed to carry its burden to prove that the EIR was 

inadequate. (Barthelemy v. Chino Basin Mun. Water Dist. (1995) 38 Cal.App.4th 1609, 

1617 (Barthelemy).) Therefore, we affirm the judgment. This resolution makes it 

unnecessary to address the cross-appeals, claiming that Treasure Island Homeless 

Development Initiative, Inc. (TIHDI) is an “indispensable” party to this action. 

II. 

FACTUAL AND PROCEDURAL BACKGROUNDS 

 The area designated for the Project has an interesting history. Treasure Island is a 

man-made island consisting of about 404 acres of landfill placed on former tidelands and 

submerged lands in the middle of San Francisco Bay between San Francisco and 

Oakland, California. Yerba Buena Island is an adjacent, approximate 160-acre, natural 

 3

 All unspecified section references are to the Public Resources Code. 
3

rock outcropping. Treasure Island and the causeway that connects it to Yerba Buena 

Island were constructed in the late 1930’s for the Golden Gate International Exposition. 

The exposition was held in 1939 to celebrate the completion of the Golden Gate Bridge 

and the San Francisco/Oakland Bay Bridge. 

 Shortly thereafter, during World War II, the United States Department of Defense 

converted the area into a naval station, which it operated for more than five decades. 

Naval Station Treasure Island consisted of approximately 550 acres, including Yerba 

Buena Island. Naval Station Treasure Island was subsequently closed in 1993, and 

ceased operations in 1997. 

 The existing conditions on the Project site are characterized by aging 

infrastructure, environmental contamination from former naval operations, deteriorated 

and vacant buildings, and asphalt and other impervious surfaces which cover 

approximately 65 percent of the site. The City and the community have been formulating 

plans for the reuse of former Naval Station Treasure Island, and the adjacent Yerba 

Buena Island, since its closure. 

 In June 2011, after more than a decade of planning, study and community input, 

the City’s board of supervisors approved the Project by a vote of 11-0. In approving the 

Project, the board amended the City’s general plan and planning code maps and text, and 

approved policies and standards for redevelopment of Naval Station Treasure Island. 

 The Project has been described implicitly as a veritable “Shining City on the Fill.” 

The EIR envisions the Project as including a new, mixed-use community, including up to 

8,000 residential units (with at least 25 percent designated as affordable units available at 

below-market prices); up to 140,000 square feet of new commercial and retail space; up 

to 100,000 square feet of new office space; restoration and reuse of historic buildings on 

Treasure Island; about 500 hotel rooms; public utilities; 300 acres of parks, playgrounds, 

and public open space; bike and transit facilities; and a new ferry terminal and intermodal 

transit hub. An existing school building would be rehabilitated or rebuilt as a 

kindergarten through eighth grade public school in coordination with the San Francisco 

Unified School District. As described by the City’s attorney at oral argument, when the 
4

Project is implemented, “Treasure Island is going to go from being an underutilized naval 

station to a whole new state-of-the art section of the City.” 

 Construction and buildout of the Project would be phased, and anticipated to be 

completed over an approximate 15- to 20-year period. 

 On July 18, 2011, CSTI filed this petition for writ of mandate challenging the 

City’s decision to certify the EIR for the Project. The hearing on the petition took place 

over four days. On December 14, 2012, the trial court issued a decision denying the 

petition in its entirety. Judgment was entered on January 28, 2013. CSTI filed a notice 

of appeal on February 7, 2013. 

 TIHDI filed its cross-appeal on February 25. 2013. Treasure Island Community 

Development (TICD), the master developer selected by TIDA for the Project, filed its 

cross-appeal on February 27, 2013. The cross-appeals focus on the trial court’s decision 

to deny TIHDI’s motion to dismiss CSTI’s petition for writ of mandate on the grounds 

TIHDI was an indispensable party to this action. 

III. 

DISCUSSION 

A. General CEQA Principles and Standard of Review

 “ ‘The EIR is the heart of CEQA’ and the integrity of the process is dependent on 

the adequacy of the EIR. [Citations.]” (Save Our Peninsula Committee v. Monterey 

County Bd. of Supervisors (2001) 87 Cal.App.4th 99, 117.) “The purpose of an [EIR] is 

to provide public agencies and the public in general with detailed information about the 

effect which a proposed project is likely to have on the environment; to list ways in 

which the significant effects of such a project might be minimized; and to indicate 

alternatives to such a project.” (§ 21061.) “An EIR should be prepared with a sufficient 

degree of analysis to provide decisionmakers with information which enables them to 

make a decision which intelligently takes account of environmental consequences. An 

evaluation of the environmental effects of a proposed project need not be exhaustive, but 

the sufficiency of an EIR is to be reviewed in the light of what is reasonably feasible. . . . 
5

The courts have looked not for perfection but for adequacy, completeness, and a good 

faith effort at full disclosure.” (Guidelines, § 15151.)4

 We review an agency’s determinations and decisions for abuse of discretion. An 

agency abuses its discretion when it fails to proceed in a manner required by law, or 

when its determination or decision is not supported by substantial evidence. (§§ 21168, 

21168.5; Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova

(2007) 40 Cal.4th 412, 426-427 (Vineyard).) Judicial review of these two types of error 

differs significantly: While we determine de novo whether the agency has employed the 

correct procedures, scrupulously enforcing all legislatively mandated CEQA 

requirements, we accord greater deference to the agency’s substantive factual 

conclusions. (Preserve Wild Santee v. City of Santee (2012) 210 Cal.App.4th 260, 275 

(Santee).) In CEQA cases, as in other mandamus cases, we independently review the 

administrative record under the same standard of review that governs the trial court. 

(Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 

Cal.App.4th 1252, 1259.) 

 CSTI claims its “challenge to the EIR’s adequacy as an information disclosure 

document is a procedural claim reviewed de novo by the courts, and thus the question of 

whether ‘substantial evidence’ supports the City’s determinations is irrelevant.” (Italics 

omitted.) Despite CSTI’s strenuous efforts to reframe the issues to allege procedural 

violations under CEQA, virtually all of the issues it raises on appeal challenge the 

sufficiency of the information provided to the public and the decision makers. 

 Because the “fundamental purpose of an EIR is ‘to provide public agencies and 

the public in general with detailed information about the effect which a proposed project 

is likely to have on the environment,’ ” absence of information in an EIR may be a failure 

to proceed in a manner required by law. (Vineyard, supra, 40 Cal.4th at p. 428, quoting 

 4

 All references to Guidelines are to the CEQA Guidelines (Guidelines) (Cal. 

Code Regs., tit. 14, § 15000 et seq.). In interpreting CEQA, we accord the Guidelines 

great weight except where they are clearly unauthorized or erroneous. (Vineyard, supra, 

40 Cal.4th at p. 428, fn. 5; Santee, supra, 210 Cal.App.4th at p. 276, fn. 10.) 
6

§ 21061.) But, failing to include information “normally will rise to the level of a failure 

to proceed in the manner required by law only if the analysis in the EIR is clearly 

inadequate or unsupported. [Citation.]” (Barthelemy, supra, 38 Cal.App.4th at p. 1620.) 

 CEQA requires an EIR to reflect a good faith effort at full disclosure; it does not 

mandate perfection, nor does it require an analysis to be exhaustive. (Barthelemy, supra, 

38 Cal.App.4th at p. 1617.) As was stressed in Berkeley Keep Jets Over the Bay v. Board 

of Port Cmrs. (2001) 91 Cal.App.4th 1344, 1355 (Berkeley Jets), the “determination of 

EIR adequacy is essentially pragmatic.” (Id. at p. 1356.) “Preparing an EIR requires the 

exercise of judgment, and the court in its review may not substitute its judgment, but 

instead is limited to ensuring that the decision makers have considered the environmental 

consequences of their action.” (Ibid.) Hence, an EIR must be upheld if it “reasonably 

sets forth sufficient information to foster informed public participation and to enable the 

decision makers to consider the environmental factors necessary to make a reasoned 

decision.” (Ibid.) 

 Consequently, the “absence of information in an EIR does not per se constitute a 

prejudicial abuse of discretion. [Citation.] Instead, ‘ “[a] prejudicial abuse of discretion 

occurs if the failure to include relevant information precludes informed decisionmaking 

and informed public participation, thereby thwarting the statutory goals of the EIR 

process . . . .” [Citation.]’ [Citation.]” (Rialto Citizens for Responsible Growth v. City of 

Rialto (2012) 208 Cal.App.4th 899, 925; Berkeley Jets, supra, 91 Cal.App.4th at p. 1355; 

Barthelemy, supra, 38 Cal.App.4th at p. 1620.) 

 Under this standard, despite CSTI’s arguments to the contrary, “[n]oncompliance 

with CEQA’s information disclosure requirements is not per se reversible . . . .” 

(Association of Irritated Residents v. County of Madera (2003) 107 Cal.App.4th 1383, 

1391.) A challenger, such as CSTI, asserting inadequacies in an EIR must show the 

omitted information “is both required by CEQA and necessary to informed discussion. 

[Citations.]” (California Native Plant Society v. City of Santa Cruz (2009) 177 

Cal.App.4th 957, 986.) 
7

B. Did the Project Require a Program EIR Instead of a Project EIR?

 CSTI’s main argument on appeal is that the City prejudicially abused its discretion 

by preparing a project EIR instead of a program EIR. Here, the EIR states it is a “project 

EIR” that analyzes all phases of the Project at maximum buildout. A “project EIR” is 

prepared for a construction-level project, and “should focus primarily on the changes in 

the environment that would result from the development project [and] examine all phases 

of the project including planning, construction, and operation.” (Guidelines, § 15161; 

In re Bay Delta etc. (2008) 43 Cal.4th 1143, 1169 (Bay Delta).) 

 In contrast, a “program EIR” evaluates the broad policy direction of a planning 

document, such as a general plan, but does not examine the potential site-specific impacts 

of the many individual projects that may be proposed in the future consistent with the 

plan. (§§ 21068.5, 21093; Guidelines, §§ 15168, 15385.) Program EIRs play a key role 

in a “tiered” CEQA analysis.5

 (Guidelines, § 15152, subd. (h).) 

CSTI argues “at best, the EIR constitutes conceptual, program-level CEQA 

analysis” which functions as a first-tier document, and anticipates later environmental 

review on specific projects. CSTI claims the most appropriate way to address the Project 

is by “tiered environmental review . . . where, as here, the proposal being advanced is an 

overarching, conceptual plan or program, the project-level details of which will only 

become known as they are later formulated and presented in a series of later, project-level 

proposals intended to implement the conceptual plan or program. [Citations.]” 

 5

 “ ‘Tiering’ refers to using the analysis of general matters contained in a broader 

EIR (such as one prepared for a general plan or policy statement) with later EIRs and 

negative declarations on narrower projects; incorporating by reference the general 

discussions from the broader EIR; and concentrating the later EIR or negative declaration 

solely on the issues specific to the later project.” (Guidelines, § 15152, subd. (a); see, 

e.g., Al Larson Boat Shop, Inc. v. Board of Harbor Commissioners (1993) 18 

Cal.App.4th 729, 743 (Al Larson) [first-tier EIR adequate when it analyzed goal of 

increased port capacity while deferring full analysis of anticipated future projects, 

discussing them only “for the purposes of giving a reasonably detailed consideration to 

the overall five-year plan”].) 
8

 CSTI’s contention that the EIR was improperly prepared as a “project EIR” 

instead of a “program EIR” improperly focuses on the EIR’s title rather than its 

substance. There are many different names that have been applied to EIRs. For example, 

there are project EIRs (Guidelines, § 15161), program EIRs (Guidelines, § 15168), staged 

EIRs (Guidelines, § 15167), master EIRs (Guidelines, § 15175), subsequent EIRs 

(Guidelines, § 15162), focused EIRs (Guidelines, §§ 15178; 15179.5), and supplemental 

EIRs (Guidelines, § 15163). 

 For this reason, courts strive to avoid attaching too much significance to titles in 

ascertaining whether a legally adequate EIR has been prepared for a particular project. 

As explained in Friends of Mammoth v. Town of Mammoth Lakes Redevelopment Agency

(2000) 82 Cal.App.4th 511 (Friends of Mammoth): “Designating an EIR as a program 

EIR . . . does not by itself decrease the level of analysis otherwise required in the EIR. 

‘All EIR’s must cover the same general content. (Guidelines, §§ 15120–15132.) The 

level of specificity of an EIR is determined by the nature of the project and the “rule of 

reason” [citation], rather than any semantic label accorded to the EIR.’ [Citation.]” (Id. 

at p. 533, quoting Al Larson, supra, 18 Cal.App.4th at pp. 741-742, fn. omitted.) 

 As Division Three of this court reiterated, in language particularly pertinent to the 

issue before us, the “fact that this EIR is labeled a ‘project’ rather than a ‘program’ EIR 

matters little” for purposes of its sufficiency as an informative document. (California 

Oak Foundation v. Regents of University of California (2010) 188 Cal.App.4th 227, 271, 

fn. 25 (California Oak).) “ ‘The level of specificity of an EIR is determined by the nature 

of the project and the “rule of reason” [citation], rather than any semantic label accorded 

to the EIR.’ [Citations.]” (Ibid.) 

 Similarly, the court in Dusek v. Redevelopment Agency (1985) 173 Cal.App.3d 

1029, rejected claims of noncompliance with CEQA as relating “more to labeling and 

form than . . . to the underlying objectives of CEQA.” (Id. at p. 1038.) “ ‘In reviewing 

an EIR a paramount consideration is the right of the public to be informed in such a way 

that it can intelligently weigh the environmental consequences of any contemplated 

action and have an appropriate voice in the formulation of any decision.’ ” (Id. at 
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p. 1039.) “Our search is for reasonableness, an objective good faith effort to follow the 

requirements, and substantial compliance with CEQA.” (Id. at p. 1040.) 

These cases are consistent with the Guidelines, which provide that a lead agency 

may use EIR variations other than those listed in the Guidelines, so long as they meet 

“the content requirements discussed in Article 9 beginning with Section 15120.” 

(Guidelines, § 15160.) Article 9, in turn, requires that EIRs must contain (i) a table of 

contents or index (Guidelines, § 15122); (ii) a summary (Guidelines, § 15123); (iii) a 

project description (Guidelines, § 15124); (iv) a discussion of the environmental setting 

(Guidelines, § 15125); (v) consideration and discussion of environmental impacts 

(Guidelines, § 15126); (vi) consideration and discussion of significant environmental 

impacts (Guidelines, § 15126.2); (vii) consideration and discussion of mitigation 

measures proposed to minimize significant effects (Guidelines, § 15126.4); 

(viii) consideration and discussion of alternatives to the proposed project (Guidelines, 

§ 15126.6); (ix) a discussion of effects not found to be significant (Guidelines, § 15128); 

(x) a list of organizations and persons consulted (Guidelines, § 15129); (xi) a discussion 

of cumulative impacts (Guidelines, § 15130); (xii) to a limited extent, a discussion of 

economic and social effects of the proposed project (Guidelines, § 15131); and 

(xiii) revisions to the draft EIR, comments on the draft EIR, a list of commenters on the 

draft EIR, and the lead agency’s responses to comments on the draft EIR (Guidelines, 

§ 15132). The EIR before us contains all of the required elements of an EIR, and CSTI 

does not claim otherwise. 

 CSTI fails to cite any authority supporting its argument that the objective of 

creating a legally adequate EIR for this Project could only be accomplished by the use of 

a program EIR. No such authority exists. In the end, CSTI improperly tries to convert a 

discretionary decision that should properly be made by the lead agency into a legal issue 

that should be resolved by the courts. (See § 21083.1; Chaparral Greens v. City of Chula 

Vista (1996) 50 Cal.App.4th 1134, 1145 [courts should not interpret CEQA to impose 

procedural or substantive requirements beyond those explicitly required in the statutes or 

the Guidelines].) 
10

 CSTI also repeatedly makes the argument that the EIR was prepared as a project 

EIR to circumvent the fair argument standard of review that would have been applied to a 

program EIR for evaluating whether subsequent environmental review is necessary. The 

fair argument standard creates a low threshold favoring future environmental review and 

differs markedly from the deferential substantial evidence standard of review normally 

enjoyed by agencies. (See Sierra Club v. California Dept. of Forestry & Fire Protection

(2007) 150 Cal.App.4th 370, 381 [distinguishing fair argument standard from usual 

substantial evidence standard].) 

 CSTI’s argument is based on a flawed legal premise. For purposes of the standard 

of review, the same substantial evidence standard applies to subsequent environmental 

review for a project reviewed in a program EIR or a project EIR. (See Citizens for 

Responsible Equitable Environmental Development v. City of San Diego Redevelopment 

Agency (2005) 134 Cal.App.4th 598, 610 [“Once an agency has prepared [a program] 

EIR, its decision not to prepare a supplemental or subsequent EIR for a later project is 

reviewed under the deferential substantial evidence standard” (fn. omitted)]; accord, 

Latinos Unidos de Napa v. City of Napa (2013) 221 Cal.App.4th 192, 201-202 (Latinos 

Unidos) [substantial evidence standard applies in reviewing an agency’s determination 

that a project’s potential environmental impacts were adequately analyzed in a prior 

program EIR]; Santa Teresa Citizen Action Group v. City of San Jose (2003) 114 

Cal.App.4th 689, 704 (Santa Teresa) [substantial evidence standard applies when agency 

has already prepared program EIR and the question is whether implementing later phases 

of the program will result in new impacts].) 

 Nothing in Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307 (Sierra 

Club), which is heavily relied upon by CSTI, mandates that the fair argument standard 

should be unilaterally applied to later projects proposed under a program EIR. That case 

found the fair argument standard applied when a program EIR had been certified 

covering mining in connection with the county’s resource management plan, and the 

company was proposing to mine on land that had been designated in the resource 

management plan as agricultural. (Id. at p. 1320.) Because this new project had never 
11

previously been assessed and was entirely different from the project that had been 

considered in the EIR, the court held the fair argument standard applied because, in 

effect, no prior environmental review had taken place. (Id. at pp. 1320-1321.) The 

court’s analysis in Sierra Club does not suggest that the fair argument standard 

automatically applies to subsequent discretionary actions in every case where a program 

EIR has been prepared. (See Latinos Unidos, supra, 221 Cal.App.4th at pp. 201-202 

[court that decided Sierra Club endorses substantial evidence as the normal standard of 

review].)6

 It should also be emphasized that in reviewing this EIR, we detect no attempt to 

avoid supplemental review under section 21166, nor does the designation of this EIR as a 

project EIR create any shortcut around the environmental review process as it applies to 

future site-specific approvals. Section 21166 provides: “When an environmental impact 

report has been prepared for a project pursuant to this division, no subsequent or 

supplemental environmental impact report shall be required by the lead agency or by any 

responsible agency, unless one or more of the following events occurs: [¶] (a) Substantial 

changes are proposed in the project which will require major revisions of the 

environmental impact report. [¶] (b) Substantial changes occur with respect to the 

circumstances under which the project is being undertaken which will require major 

revisions in the environmental impact report. [¶] (c) New information, which was not 

known and could not have been known at the time the environmental impact report was 

certified as complete, becomes available.” 

 6

 We recognize that when an agency attempts to tier its environmental review for 

a materially different project onto a prior program EIR, then the fair argument test is 

required under section 21094, subdivision (c). (Sierra Club, supra, 6 Cal.App.4th at 

p. 1319.) In that situation, the initial study “shall analyze whether the later project may

cause significant effects on the environment that were not examined in the prior [EIR].” 

(§ 21094, subd. (c), italics added; see, e.g., Santa Teresa, supra, 114 Cal.App.4th at 

p. 704, fn. 11.) The low threshold for requiring preparation of a subsequent or 

supplemental EIR for a new project that was not addressed in the prior program EIR 

reflects a preference for resolving doubts in favor of environmental review. (Sierra Club, 

supra, 6 Cal.App.4th at pp. 1316-1317.) 
12

 The obligation to conduct supplemental review under section 21166 applies 

regardless of whether the project under consideration has undergone previous, projectspecific environmental review, or is being carried out under a plan for which the agency 

has previously certified a program EIR. (See Guidelines, §§ 15162, 15168, subd. (c)(2); 

see May v. City of Milpitas (2013) 217 Cal.App.4th 1307, 1326 [“Where environmental 

review has been conducted through a program EIR, CEQA requires further review” in the 

“limited circumstances” described in section 21166].) Conversely, “ ‘[i]f a program EIR 

is sufficiently comprehensive, the lead agency may dispense with further environmental 

review for later activities within the program that are adequately covered in the program 

EIR. [Citation.]’ [Citation.]” (California Clean Energy Committee v. City of Woodland

(2014) 225 Cal.App.4th 173, 200.) Therefore, CSTI’s repeated argument that the lead 

agency’s decision to prepare a project EIR, as opposed to a program EIR, constituted an 

“unlawful attempt to prospectively evade” the possibility of future CEQA review is 

baseless. The EIR repeatedly acknowledges the duty to perform supplemental review 

under section 21166 as the Project builds out over 15 to 20 years, and that duty exists 

regardless of whether the EIR was prepared as a project EIR, or as a program EIR. 

 CSTI repeatedly claims that CEQA was violated because “the EIR fails to provide 

project-level disclosure or analysis.” But, the level of detail in an EIR is driven by the 

nature of the project, not the label attached. “It is the substance, rather than the form, of 

[the environmental] document which determines its nature and validity. [Citations.]” 

(Natural Resources Defense Council, Inc. v. California Coastal Zone Conservation Com.

(1976) 57 Cal.App.3d 76, 91.) As a general statement of CEQA practice, “[t]he degree of 

specificity required in an EIR will correspond to the degree of specificity involved in the 

underlying activity which is described in the EIR. . . . An EIR on a construction project 

will necessarily be more detailed in the specific effects of the project than will be an EIR 

on the adoption of a local general plan . . . .” (Guidelines, § 15146.) Recently, it was 

reaffirmed, “ ‘the sufficiency of an EIR is to be reviewed in the light of what is 

reasonably feasible.’ [Citation.]” (San Diego Citizenry Group v. County of San Diego 

(2013) 219 Cal.App.4th 1, 21, quoting Guidelines, § 15151.) 
13

 These legal standards, which apply to all EIRs, set the appropriate focus for our 

review here. Courts have looked not for perfection but for adequacy, completeness, and a 

good faith effort at full disclosure. (Guidelines, § 15151; see Eureka Citizens for 

Responsible Government v. City of Eureka (2007) 147 Cal.App.4th 357, 372; Rio Vista 

Farm Bureau Center v. County of Solano (1992) 5 Cal.App.4th 351, 368 (Rio Vista Farm 

Bureau).) Accordingly, the question is not whether a program EIR should have been 

prepared for this Project, but instead, whether the EIR addressed the environmental 

impacts of this Project to a “degree of specificity” consistent with the underlying activity 

being approved through the EIR. (Guidelines, §§ 15146, 15168, subd. (c)(5).) 

Additionally, in reviewing CSTI’s challenge to this EIR, it is unconstructive to ask 

whether the EIR provided “project-level” as opposed to “program-level” detail and 

analysis. Instead, we focus on whether the EIR provided “decision makers with 

sufficient analysis to intelligently consider the environmental consequences of [the] 

project.” (Bay Delta, supra, 43 Cal.4th at p. 1175.) If these questions are answered 

affirmatively, the EIR is legally sufficient, regardless of whether it is a project or a 

program EIR. 

C. Is the Project Description Accurate and Stable?

 This court is among the many which have recognized that a project description 

that gives conflicting signals to decision makers and the public about the nature and 

scope of the project is fundamentally inadequate and misleading. (Communities for a 

Better Environment v. City of Richmond (2010) 184 Cal.App.4th 70, 84 (CBE).) “Only 

through an accurate view of the project may affected outsiders and public decisionmakers balance the proposal’s benefit against its environmental cost, consider mitigation 

measures, assess the advantage of terminating the proposal i.e., the ‘no project’ 

alternative), and weigh other alternatives in the balance.” (County of Inyo v. City of Los 

Angeles (1977) 71 Cal.App.3d 185, 192-193 (County of Inyo).) Therefore, we have no 

quarrel with CSTI’s citation to case law articulating the general CEQA principle that 

“[a]n accurate, stable and finite project description is the sine qua non of an informative 

and legally sufficient EIR.” (Id. at p. 193, italics omitted.) 
14

 In arguing that the EIR’s project description is unstable and erratic, CSTI 

characterizes the project as a 20-year long-range development plan that is nothing more 

than a “conceptual land use map.” Illustrative of these arguments, CSTI asserts “[t]he 

EIR here . . . analyzes an abstract and indeterminate ‘conceptual’ development scenario 

that lacks the ‘accurate, finite and stable’ project-level details necessary to fully analyze 

potentially significant impacts.” As an example, CSTI claims the specific configuration 

and design of particular buildings is left for future review. It also contends the Project’s 

street network and layout is only conceptual at this point, with the final layout subject to 

review by applicable agencies, such as the San Francisco Fire Department. 

 Contrary to these criticisms, the EIR made an extensive effort to provide 

meaningful information about the project, while providing for flexibility needed to 

respond to changing conditions and unforeseen events that could possibly impact the 

Project’s final design. In fact, the design elements CSTI claims are lacking in this EIR 

are found in several documents that will guide future development. First, the EIR 

describes the creation of a special use district (SUD), which establishes zoning districts 

throughout the project area, identifies permitted uses, and provides detailed standards 

applicable to development within each district. 

 Implementing the SUD is a document entitled “Treasure Island and Yerba Buena 

Island Design for Development” (D4D). The D4D contains binding, detailed standards 

governing virtually every aspect of Project development, including new construction. 

The D4D includes a plan showing both “fixed” elements, such as street layouts, and 

“conceptual elements,” such as “shapes of new buildings or specific landscape designs.” 

 Taken together, the SUD and D4D provide concrete information regarding 

building heights, mass, bulk, and design specifications CSTI claims is lacking. The D4D 

establishes specific “flex zones”––zoning districts in which a limited number of towers 

(taller buildings) may be located, subject to the maximum height limit in that zoning 

district. The towers are also subject to quantitative standards dictating separation, bulk, 

and massing; these standards dictate the buildings’ relationship to one another. For 

analysis purposes, in the section on urban design and visual impacts, representative 
15

towers were placed in each tower flex zone at the maximum height proposed. The EIR 

states that, for purposes of analysis, maximum development is assumed to evaluate the 

environmental impacts, including impacts of the Project on scenic vistas.7

 As designed, 

the “zoning rules provide limited flexibility about siting particular buildings, while 

maintaining tight controls on absolute building heights and development patterns.” 

 The SUD and D4D also include specifications for the street grid, street angles, 

street widths, block dimensions, setbacks, curb cuts, and a host of other issues, all in great 

detail. The Project’s proposed street network and layout are shown in Figure II.10 of the 

EIR. The D4D provides additional details in a section entitled “Specific Street Design 

Layouts.” 

 To be sure, as a matter of necessity at this stage in the planning process, there are 

many Project features that are subject to future revision, and quite likely will be the 

subjects of supplemental review before the final Project design is implemented. 

However, the EIR cannot be faulted for not providing detail that, due to the nature of the 

Project, simply does not now exist. (Guidelines, § 15146 [“The degree of specificity 

 7

 The EIR analyzes the greatest potential impacts expected to occur to various 

resources at full buildout. Citing Environmental Planning & Information Council v. 

County of El Dorado (1982) 131 Cal.App.3d 350 (EPIC), CSTI challenges this worstcase-scenario methodology. EPIC and its progeny hold that in establishing the baseline 

for assessing environmental impacts, the agency preparing the EIR should compare the 

existing environment (little or no development) with the total amount of development 

permitted under the proposed plan. (Id. at p. 358; City of Carmel-by-the-Sea v. Board of 

Supervisors (1986)183 Cal.App.3d 229, 246-247; Christward Ministry v. Superior Court

(1986) 184 Cal.App.3d 180, 186-187.) As our Supreme Court recently emphasized in 

Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 

Cal.4th 439, “[N]othing in CEQA law precludes an agency . . . from considering both 

types of baseline—existing and future condition—in its primary analysis of the project’s 

significant adverse effects. [Citations.]” (Id. at p. 454.) The EIR in this case did that. 

The Project that is being reviewed is expected to be built over a very long timeframe, 

during which great change is expected to this largely undeveloped area for which there 

needs to be a future accounting. The EIR’s focus on the maximum impacts expected to 

occur at full buildout promoted informed decisionmaking, and evidences a good-faith 

effort at forecasting what is expected to occur if the Project is approved. 
16

required in an EIR will correspond to the degree of specificity involved in the underlying 

activity which is described in the EIR”].) Nor have the courts required resolution of all 

hypothetical details prior to approval of an EIR, as CSTI implies. (See this division’s 

decision in Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, 

909-910 (Oakland Heritage) [EIR for mixed-use development sufficiently addressed 

seismic safety when the “preparers of the EIR” committed themselves to conduct a more 

thorough “site-specific investigations” that would be used to formulate the final structural 

designs prior to issuance of all relevant construction permits]; City of Antioch v. City 

Council (1986) 187 Cal.App.3d 1325, 1336-1337 [it was unreasonable and unrealistic to 

demand that an EIR “must describe in detail each and every conceivable development 

scenario”].) 

 CSTI claims that because the EIR does not anticipate every permutation or analyze 

every possibility, the project description is misleading, inaccurate and vague. However, 

the legal authority it relies on to support this argument, County of Inyo, supra, 71 

Cal.App.3d 185, did not address a situation where the project description was rendered 

unstable simply because specific building and design decisions were not made in the EIR. 

Rather, in County of Inyo, the parameters of the proposed project itself were unclear. 

Initially, that EIR described the project as a 51-cubic-feet-per-second increase in 

subsurface pumping to supply water used in the Owens Valley. (Id. at p. 189.) The EIR, 

however, went on to analyze a project far greater in scope, including much higher rates of 

pumping and vast infrastructure needed to deliver water to Los Angeles County. (Id. at. 

p. 190.) Thus, the problem with the EIR in County of Inyo was that the project 

description changed throughout the document itself. Many of the environmental impacts 

described in the EIR were related to the much broader project, rather than the smaller 

project described at various other points in the EIR. (Id. at pp. 190-191; accord, Western 

Placer Citizens for an Agriculture & Rural Environment v. County of Placer (2006) 144 

Cal.App.4th 890, 898 [the project description should be stable and “ ‘[t]he defined project 

and not some different project must be the EIR’s bona fide subject’ ”] (Western Placer).) 
17

 Plainly, County of Inyo is inapposite. Unlike that case, the basic characteristics of 

the Project under consideration in this case remained accurate, stable, and finite 

throughout the EIR process. The EIR in this case contains an 84-page chapter entitled 

“Project Description.” This chapter includes maps showing the project location, the 

existing character of the site, project features, site plans, project objectives, needed 

permits, and agencies with jurisdiction––in short, all of the information required by 

CEQA. CSTI has not argued, nor could it, that the EIR’s Project Description was 

deficient or misleading. Nor does it contend the integral components of the Project, as 

described in the EIR, have changed in any material way as the EIR went through the 

environmental review and approval process. Indeed, while repeatedly arguing the Project 

lacked a stable and finite project description, CSTI fails to refer to the EIR’s Project 

Description at all. 

 It appears an open question whether the adequacy of a project’s description is 

analyzed as a question of law or an issue of fact. A leading treatise seems to assign it to 

the latter category. (1 Kostka & Zischke, Practice Under the California Environmental 

Quality Act (Cont.Ed.Bar 2d ed. Mar. 2014 Update) § 11.39, p. 11-35.) There is no need 

for this court to decide which standard is correct, because the Project Description here 

clearly satisfies both standards. Viewed as an informational document, the EIR’s Project 

Description provided sufficient information about the Project to allow the public and 

reviewing agencies to evaluate and review its environmental impacts, and also provided 

the required “main features” of the Project. (See Dry Creek Citizens Coalition v. County 

of Tulare (1999) 70 Cal.App.4th 20, 28 (Dry Creek).) 

D. Does the EIR Contain an Adequate Discussion About the Presence and 

 Remediation of Hazardous Substances?

 CSTI claims “the EIR does not describe, at a project-level degree of detail, the 

existing location and nature of all hazardous materials [in the Project area] . . . or whether 

and how the City will remediate such toxic material as part of the Project.” 

 It is well documented that soil, groundwater, and existing structures on Treasure 

Island are contaminated with hazardous materials. Surveys conducted by the United 
18

States Navy (Navy) in 1994 and 2005 revealed soil and groundwater contaminants, such 

as petroleum, hydrocarbons, volatile organic compounds, semi-volatile organic 

compounds, poly-aromatic hydrocarbons, dioxins, pesticides, herbicides, PCBs, heavy 

metals (primarily lead), asbestos, and low-level radiological material. Buildings are 

contaminated with lead-based paint and asbestos. The EIR contains extensive 

information on the presence and location of these hazardous substances. 

 It should be stressed at the outset of this discussion that at the time the EIR was 

being prepared, the cleanup of the site was the sole responsibility of the Navy and was 

subject to detailed federal, state, and local laws and regulations, including laws that 

specifically apply to remediation of military bases designated for closure, like Naval 

Station Treasure Island. As the EIR explains, the Navy will complete the cleanup of each 

parcel of land before it is transferred to TIDA, the Project developer. Prior to transfer, 

the Navy will issue a “Finding of Suitability to Transfer” (FOST) to document that the 

Navy has investigated the parcel, that remedial efforts (if needed) have been completed, 

and that the parcel is ready to be transferred. The EIR explains: “These activities are 

ongoing and will occur with or without the Proposed Project. These activities are a 

precursor to future transfer and redevelopment of the area, either as the Proposed Project 

or for some other use.” The Navy’s cleanup activities are discussed in the EIR for 

informational purposes only.8

 The Navy has completed its investigation of hazardous substances on the entirety 

of Treasure Island; and at oral argument held before the trial court on June 15, 2012, it 

was reported that out of approximately 400 acres, about 170 acres had been cleared by 

the Navy “and don’t contain any contaminants at all, or if they did, it’s already been 

cleaned up.” The Navy is scheduled to continue issuing FOSTs for additional parcels in 

coming years. 

 8

 In fact, the Navy has taken the position that it is not a “public agency” of the 

State of California within the meaning of CEQA (see § 21063) and therefore, it is not 

subject to CEQA’s requirements. 
19

 Therefore, the “operating assumption” is that the Navy will complete the cleanup 

before the property is conveyed to the City. Although no early transfer is planned, the 

EIR acknowledges that under certain circumstances the TIDA or its affiliated agency, 

TICD, could enter into an agreement with the Navy to assume responsibility for 

remediation of a particular site. 

 CSTI cites Site 30 as a “vivid example” of a scenario in which TIDA or TICD 

would have to engage in cleanup activities. Site 30 totals 1.5 acres and is a former trash 

dump laden with hazardous materials, such as dioxins and lead. In 2003, the Navy 

capped Site 30 with a concrete pad, measuring approximately 10,000 square feet. The 

concrete pad is the foundation of a building that currently serves as a daycare facility. 

The Navy has decided to leave the building in place because, as it currently exists, it 

poses no significant risk to human health and the environment. However, after the Navy 

transfers this property, it is possible that the building on Site 30 will be demolished along 

with its concrete pad, thereby disturbing the underlying contaminated soil, in which case 

TIDA or TICD would have to assume responsibility for investigating, evaluating, and 

remediating any hazardous substances. 

 The EIR identified and the City approved, Mitigation Measure M-HZ-1 to address 

this contingency. The EIR describes the federal, state, and local laws and regulations 

governing any cleanup, identifies the agencies (including California’s Department of 

Toxic Substances Control) responsible for oversight, and describes the standards used to 

conclude that a site does not pose a significant risk to human health or the environment. 

It is emphasized that in the event TICD or TIDA assumes responsibility for cleanup 

efforts, it would be subject to the same environmental regulations and regulatory 

oversight as the Navy. 

 Despite these provisions, CSTI claims the trial court erred because the EIR 

“provides no project-level details as to precisely where, when or to what extent 

[remediation] activities may be required.” Additionally, CSTI argues the “City 

unlawfully deferred the development and adoption of mitigation measures for significant, 
20

adverse impacts resulting from the disturbance of contaminated soil and 

groundwater . . . .” 

 In arguing the EIR did not adequately address hazardous substances, CSTI 

compares this case with McQueen v. Board of Directors (1988) 202 Cal.App.3d 1136 

(McQueen), disapproved on other grounds in Western States Petroleum Assn. v. Superior 

Court (1995) 9 Cal.4th 559, 570, footnote 2. In McQueen, the court rejected the 

contention that the district’s acquisition of surplus federal property containing toxic and 

hazardous substances was entirely exempt from CEQA review. The purchase of the 

contaminated land was made in conjunction with the adoption of an interim use and 

management plan, where the district was “immediately obliged to properly store, use, or 

dispose of PCB upon acquiring this property . . . .” (Id. at p. 1147.) The McQueen court 

found the district had employed an incomplete and misleading description of its project in 

determining that it was exempt from CEQA. The court stated, “While there is evidence 

the district gave notice of the proposed property acquisition, there is no evidence that the 

notice mentioned the acquisition of toxic, hazardous substances.” (Id. at p. 1150.) The 

court required CEQA analysis because it was foreseeable that the district would need to 

do something––store the toxic materials or dispose of them––once it acquired the land. 

(Id. at p. 1147.) 

 CSTI claims this case is the same as McQueen because “the City violated CEQA 

by certifying its EIR as constituting project-level review where the EIR fails to disclose 

and analyze how it would store, manage, and/or dispose of the hazardous materials it 

would knowingly acquire.” However, unlike the situation profiled in McQueen, where 

environmental review of hazardous substances was avoided entirely, the EIR in this case 

contains exhaustive information on the presence of hazardous materials on Treasure 

Island, and the ongoing cleanup efforts conducted by the Navy. 

 Furthermore, unlike McQueen, the approval of the EIR for this Project does not 

assume TIDA or TICD will undertake any responsibility for the cleanup. McQueen has 

been distinguished by a number of cases that note that it was the actual environmental 

effect of foreseeable cleanup activities––not the mere acquisition of contaminated land––
21

that triggered the need for CEQA review. (See, e.g., Maintain Our Desert Environment 

v. Town of Apple Valley (2004) 124 Cal.App.4th 430, 442; Silveira v. Las Gallinas Valley 

Sanitation Dist. (1997) 54 Cal.App.4th 980, 991; Baird v. County of Contra Costa (1995) 

32 Cal.App.4th 1464, 1468-1469.) This is a distinguishing feature that is present in this 

case as well. At this point in time, the specific features of any cleanup effort that will 

have to be undertaken by TIDA or TICD are merely abstract and speculative. 

Nevertheless, out of an abundance of caution, the EIR sets out mitigation measures that 

“are a backup, a contingent mitigation in the event that [t]he City assumes control of the 

cleanup.” 

 Our Supreme Court has clarified that under circumstances similar to those 

presented here, CEQA analysis is not required, and instead may be postponed to “a later 

planning stage [for] the evaluation of those project details that are not reasonably 

foreseeable when the agency first approves the project.” (Save Tara v. City of West 

Hollywood (2008) 45 Cal.4th 116, 139; see Guidelines, § 15145 [EIR need not engage in 

speculation].) Currently, TIDA or TICD cannot possibly know whether it will be called 

upon to undertake a more active role in the investigation and cleanup of any portion of 

the Project site; and where “an EIR cannot provide meaningful information about a 

speculative future project, deferral of an environmental assessment does not violate 

CEQA. [Citations.]” (Rio Vista Farm Bureau, supra, 5 Cal.App.4th at p. 373.) 

CSTI also criticizes Mitigation Measure M-HZ-1, which was set out in the EIR in 

the event TIDA or TICD has to assume control of portions of the cleanup, as containing 

“only a ‘generalized goal’ that the developer devise protocols and criteria for managing 

contaminated soil and water.” 

 In making this argument, CSTI compares this mitigation plan with the mitigation 

plan we struck down in CBE, supra, 184 Cal.App.4th 70. In CBE, the lead agency 

approved an EIR for a refinery project that deferred formulation of a mitigation plan for 

greenhouse gas emissions (to be approved by the City Council) until one year after 

project approval. (Id. at p. 92.) This court found that deferring the formulation of 

greenhouse gas mitigation measures was improper; particularly where the delay was due 
22

to the agency’s reluctance to make a finding early in the EIR process that emissions 

generated by the project would create a significant effect on the environment. Moreover, 

the mitigation plan “offered no assurance that the plan for how the [p]roject’s greenhouse 

gas emissions would be mitigated to a net-zero standard was both feasible and 

efficacious, and [it] created no objective criteria for measuring success.” (Id. at p. 95.) 

 More recently, in Oakland Heritage, supra, 195 Cal.App.4th 884 this court upheld 

deferring site-specific seismic impact mitigation measures when the EIR relied on 

compliance with “a regulatory scheme designed to ensure seismic safety” that gave 

“adequate assurance that seismic impacts will be mitigated through engineering methods 

known to be feasible and effective.” (Id. at p. 912.) Relying heavily on Oakland 

Heritage, the court in City of Maywood v. Los Angeles Unified School Dist. (2012) 208 

Cal.App.4th 362 (City of Maywood), upheld a mitigation plan in which the School 

District committed itself to perform additional analysis of hazardous waste contamination 

and to remediate any existing contamination pursuant to state and local statutory and 

regulatory requirements and under the supervision of the Department of Toxic 

Substances Control. (Id. at p. 412.) 

 This case has more in common with Oakland Heritage and City of Maywood than 

it has with CBE. In contrast to the nascent plan for mitigation we examined in CBE, the 

EIR here provides ample information regarding the standards that will be applied, the 

techniques used, and the oversight provided in the event the City assumes future 

responsibility for remediation. Specifically, the EIR identifies the standards used by 

regulatory agencies to determine the efficacy of the cleanup efforts undertaken at each 

parcel. The EIR also describes the analytical process used to ensure those standards are 

achieved. Furthermore, the EIR identifies the agencies involved, particularly the 

Department of Toxic Substances Control and the Regional Water Quality Control Board, 

and describes their regulatory authority. These regulatory standards and agency oversight 

apply, regardless of whether the cleanup is performed by the Navy, TIDA or TICD. 

 The Guidelines specifically recognize that mitigation measures requiring 

adherence to regulatory requirements or other performance criteria are permitted. 
23

(Guidelines, § 15126.4, subd. (a)(1)(B); see Oakland Heritage, supra, 195 Cal.App.4th at 

p. 906 [“[A] condition requiring compliance with regulations is a common and 

reasonable mitigation measure, and may be proper where it is reasonable to expect 

compliance”].) The court reviews the adequacy of these measures under the “substantial 

evidence” standard of review. (Id. at p. 905; California Native Plant Society v. City of 

Rancho Cordova (2009) 172 Cal.App.4th 603, 625-626 [same].) CSTI has failed to 

identify any evidence in the record suggesting that requiring regulatory compliance as 

mitigation would be infeasible or ineffective. We thus reject CSTI’s challenge to the 

EIR’s mitigation measures. 

 CSTI next claims “[a]nother example of the lack of project-specific details 

associated with hazardous materials” is the possibility for a need for a redesign to move 

development from Site 12 to Site 24. Section 6.2 of the Disposition and Development 

Agreement (DDA) describes the understanding of the City, TIDA and TICD regarding 

the manner in which parcels are expected to become available from the Navy. Section 

6.2.5 of the DDA, entitled “Redesign Trigger Event,” addresses the possibility that the 

transfer of Site 12 may be delayed, or its use restricted, because of the presence of 

hazardous substances, so as to preclude development of this area. Section 6.2.5(b) states 

that if this occurs, TICD has the right to submit applications to shift development from 

Site 12 to Site 24. 

 CSTI argues because such a redesign is possible, the EIR should have analyzed it. 

Specifically, CSTI complains, the EIR “does not include any such ‘redesign’ plans––the 

new design would be left up to the Developer after project approval [citation]—and the 

EIR does not analyze the impacts of shifting development to this location.” 

 However, at this point, the potential for redesign based on the presence of 

hazardous substances at Site 12 is entirely speculative. An EIR is not required to engage 

in speculative analysis. (Guidelines, § 15145.) Indeed, this core principle is well 

established in the Guidelines and case law. While a lead agency must use its “best 

efforts” to evaluate environmental effects, including the use of reasonable forecasting, 

“foreseeing the unforeseeable” is not required, nor is predicting the unpredictable or 
24

quantifying the unquantifiable. (Guidelines, § 15064, subd. (d)(3) [“A change which is 

speculative or unlikely to occur is not reasonably foreseeable”]; Cadiz Land Co. v. Rail 

Cycle (2000) 83 Cal.App.4th 74, 107-108 [“ ‘agency is required to forecast only to the 

extent that an activity could be reasonably expected under the circumstances’ ”].) 

 This rule rests on both economic and practical considerations. It has long been 

recognized that premature attempts to evaluate effects that are uncertain to occur or 

whose severity cannot reliably be measured is “a needlessly wasteful drain of the public 

fisc. [Citation.]” (Environmental Council of Sacramento v. City of Sacramento (2006) 

142 Cal.App.4th 1018, 1031; see, e.g., Save Round Valley Alliance v. County of Inyo

(2007) 157 Cal.App.4th 1437, 1450-1451 [an EIR for a subdivision of single-family 

residences was not deficient in failing to consider the possibility that the future lot owners 

might build a second dwelling on their lot pursuant to a local ordinance allowing such 

dwellings, because the possibility was remote and speculative].) 

 It should also be pointed out that Site 12 is designated for residential and openspace uses. Site 24 is zoned as open space. Thus, to accommodate the shift of 

development from Site 12 to Site 24, the City would have to amend its zoning map for 

the site. Such a shift, should it occur, would be a discretionary action requiring 

supplemental environmental review. (§ 21166.) The EIR acknowledges the need for 

supplemental environmental review in the event such a rezone is proposed. Thus, at this 

stage, the EIR was not required to analyze the specific impacts of a theoretical shift in 

development from Site 12 to Site 24. 

E. Should the Draft EIR Have Been Recirculated in Light of New Information? 

 CSTI next claims the EIR should have been recirculated in light of “significant 

new information” developed during the public comment period from the United States 

Coast Guard (Coast Guard) indicating the project may interfere with vessel safety and 

homeland security on San Francisco Bay. 

 The Coast Guard’s Vessel Traffic Service (VTS) regulates ship traffic on San 

Francisco Bay and is “an essential component of the Coast Guard’s [Maritime Homeland 

Security] mission.” The draft EIR acknowledges the existence of the Coast Guard’s VTS 
25

system and states the Project sponsors will enter into an agreement with the Coast Guard 

with respect to the construction schedule, construction activities, and access to the Coast 

Guard facility. 

 In response to its review of the draft EIR, the Coast Guard submitted a letter 

indicating the VTS system’s “line of sight would potentially be broken by several of the 

buildings proposed in the [Development Plan].” Specifically, the Coast Guard was 

concerned that any building constructed on Treasure Island exceeding heights of 300 feet 

could interfere with the VTS system, “creating an unacceptable maritime risk to both the 

vessels and the public without mitigation.” To resolve this issue, the Coast Guard 

expressed its willingness “to work with the developers to identify appropriate locations 

on Treasure Island for additional [Coast Guard] facilities to maintain direct radio and 

radar contact with vessels in the navigable waters of the Bay.” 

 In reply to the letter, the City, TICD and TIDA met privately with the Coast Guard 

after the draft EIR comment period closed. TICD and TIDA conducted technical studies 

to determine the minimum building height which could potentially affect VTS equipment 

operations. These heights are shown in “Heights Requiring Consultation Plan” in the 

D4D. The final EIR amended the D4D to require consultation with the Coast Guard if 

future proposals are made for the construction of buildings taller than heights specified in 

the D4D to determine “whether interference would occur; identify appropriate 

modifications to any proposed buildings that could cause interference; and require the 

building developer to make space available and provide access to the Coast Guard to 

place equipment on the roof of the building . . . or establish some other similar solution, 

as necessary, for the purpose of maintaining direct radar and radio contact between the 

VTS and vessels in the navigable waters of San Francisco Bay.” A May 25, 2011 letter 

from the Coast Guard indicated it “reviewed and is comfortable with the proposed 

consultation process which addressed the concerns raised in our September 3, 2010 

letter.” 

 We first address CSTI’s argument that private meetings between the Coast Guard 

and the City, TICD and TIDA somehow subverted CEQA’s public disclosure and 
26

participation procedures. CEQA allows, if not encourages, public agencies to revise 

projects in light of new information revealed during the CEQA process. “The CEQA 

reporting process is not designed to freeze the ultimate proposal in the precise mold of 

the initial project; indeed, new and unforeseen insights may emerge during investigation, 

evoking revision of the original proposal. [Citation.]” (County of Inyo, supra, 71 

Cal.App.3d at p. 199; see also River Valley Preservation Project v. Metropolitan Transit 

Development Bd. (1995) 37 Cal.App.4th 154, 168, fn. 11.) One court found the changes 

made in the project in response to concerns raised in the extended environmental review 

process showed “CEQA fulfilled its purpose.” (Western Placer, supra, 144 Cal.App.4th 

at p. 905.) In short, this is the way CEQA is supposed to work––the public comment 

process may reveal new and unforeseen insights about the project that will affect the final 

Project design. 

 CSTI argues these “modifications to the [P]roject” triggered CEQA’s mandatory 

recirculation procedures, so that the interested public could be informed “of such 

undisclosed, potentially significant adverse impacts on vessel safety and Homeland 

security impacts on the Bay, and review and respond to them in a renewed public 

comment period.” 

 When the matter was raised below, the decision not to recirculate the EIR was 

explained as follows: “Consultation prior to final building design would assure that the 

Coast Guard operations would not be affected by proposed development on Treasure 

Island, and therefore no impacts would occur to vessel safety on the Bay.” CSTI 

disagrees with this assessment and claims the information in the final EIR was significant 

enough to warrant recirculation. 

 The Guidelines describe the types of “significant new information” requiring 

recirculation of a draft EIR. These include disclosure of “[a] significant new 

environmental impact,” “[a] substantial increase in the severity of an environmental 

impact,” and the addition of a “feasible project alternative or mitigation measure 

considerably different from the others previously analyzed.” (Guidelines, §§ 15088.5, 

subd. (a)(1)-(3).) The Guidelines state that “[n]ew information added to an EIR is not 
27

‘significant’ unless the EIR is changed in a way that deprives the public of a meaningful 

opportunity to comment upon a substantial adverse environmental effect of the project or 

a feasible way to mitigate or avoid such an effect . . . .” (Guidelines, § 15088.5, 

subd. (a).) 

 The trial court found the Coast Guard’s letter raising the VTS issue and the City’s 

response to that letter did not result in “significant new information” within the meaning 

of CEQA that would require recirculation of the EIR. The trial court held: “[T]he record 

contains substantial evidence indicating that the Coast Guard’s VTS system is compatible 

with urban development, and that adjustments to that system can be accommodated in a 

manner that ensures the continued effectiveness of that system, without giving rise to 

environmental impacts.” 

 In claiming the trial court erred, CSTI contends the City’s decision not to 

recirculate the EIR “involve[s] a procedural violation of CEQA’s public participation and 

informed decisionmaking procedures that is reviewed de novo by the courts.” (Italics 

omitted.) This argument ignores well-established law that courts must defer to an 

agency’s explicit or implicit decision not to recirculate a draft EIR so long as it is 

supported by substantial evidence. (Laurel Heights Improvement Assn. v. Regents of 

University of California (1993) 6 Cal.4th 1112, 1135 (Laurel Heights II); see also South 

County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 330 

(South County Citizens) [appellant bears burden of proving decision not to recirculate the 

final EIR is not supported by substantial evidence]; Clover Valley Foundation v. City of 

Rocklin (2011) 197 Cal.App.4th 200, 223.) Indeed, as the court stated in Western Placer, 

supra, 144 Cal.App.4th at page 903, an agency’s determination not to recirculate is given 

“substantial deference” and is presumed “to be correct.” 

 CSTI not only ignores the standard of review; it never mentions that, in approving 

the Project and certifying the EIR, the City explicitly found “[c]onsultation prior to final 

building design would assure that the Coast Guard operations would not be affected by 

proposed development on Treasure Island, and therefore no impacts would occur to 

vessel safety on the Bay.” (Italics added.) CSTI’s burden on appeal is to set forth the 
28

evidence supporting this finding, and then to show why it is lacking. (South County 

Citizens, supra, 221 Cal.App.4th at p. 330; Defend the Bay v. City of Irvine (2004) 119 

Cal.App.4th 1261, 1266; Tracy First v. City of Tracy (2009) 177 Cal.App.4th 912, 935; 

Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 540-541.) CSTI does not 

even attempt to make an argument that the consultation process incorporated into the 

final EIR, which would avoid any potential impacts to the VTS system, would be 

ineffective or would not be carried out as designed. (See Dry Creek, supra, 70 

Cal.App.4th at p. 34 [EIR reasonably assumes integral project features would be 

implemented].) “This is fatal to its claim.” (South County Citizens, supra, 221 

Cal.App.4th at p. 331.) 

 When all of these circumstances are considered, CSTI has failed to show that 

meaningful public comment was thwarted. In Laurel Heights II, the court considered 

whether several categories of new information added to the final EIR constituted 

“significant new information” triggering recirculation. (Laurel Heights II, supra, 6 

Cal.4th at p. 1136.) The draft EIR in Laurel Heights II did not discuss the potential 

visual effects of the light glare from the project, but in response to public comments, the 

final EIR included a discussion of the impact, concluded it was less than significant, but 

nonetheless imposed a mitigation measure. (Id. at p. 1140.) The court found that the 

impact from the light was insignificant and thus did not trigger a requirement that the EIR 

be recirculated. (Id. at pp. 1140-1141.) 

 Like the light glare in Laurel Heights II, the new information about the Project’s 

potential impacts on the Coast Guard’s VTS system, and the modification of the D4D to 

add a consultation requirement, did not show any new significant adverse impacts.9

 

 9

 CSTI surmises that “mitigation measures calling for the relocation of [Coast 

Guard’s] VTS to the top of private, high-rise residential towers in the middle of San 

Francisco Bay may, themselves, have significant adverse effects triggering a mandatory 

finding of significance under CEQA.” (Original underscoring, fn. omitted.) There is no 

evidence supporting this conjecture. (Pala Band of Mission Indians v. County of San 

Diego (1998) 68 Cal.App.4th 556, 577 [speculative possibilities are not substantial 

evidence of environmental impact].) 
29

Here, the refinements that occurred in the EIR at the Coast Guard’s behest do not 

constitute the type of significant new information requiring recirculation. (See, e.g., 

California Oak, supra, 188 Cal.App.4th at pp. 266-268 [seismic studies and requests for 

further investigation by regulators did not trigger duty to recirculate draft EIR absent 

evidence of new seismic risks]; Western Placer, supra, 144 Cal.App.4th at pp. 904-905 

[no recirculation required despite changes in project phasing in response to concerns 

expressed after draft EIR was circulated].) 

F. Does the EIR Adequately Discuss Preservation of Historic Resources?

 CSTI next claims the EIR “failed to analyze or mitigate impacts to historic 

resources at a project-level of detail, because it does not disclose or analyze the 

prospective end reuses of Buildings 1 and 3, which all parties agree are qualifying 

historic resources . . . .” 

 Historic resources are accorded special protection under CEQA, and the state must 

“take all action necessary to protect, rehabilitate, and enhance the environmental quality 

of the state” including the protection and rehabilitation of “objects of historic or aesthetic 

significance.” (§§ 21001, subd. (a), 21060.5.) “ ‘ “Historical resource” includes, but is 

not limited to, any object, building, structure, site, area, [or] place . . . which is 

historically or archaeologically significant, or is significant in the architectural, 

engineering, scientific, economic, agricultural, educational, social, political, military, or 

cultural annals of California.’ ” (§ 5020.1, subd. (j); see Friends of Sierra Madre v. City 

of Sierra Madre (2001) 25 Cal.4th 165, 186.) 

 Buildings 1 and 3 were constructed in an Art Moderne style as permanent 

structures for an international exhibition celebrating the construction of the Golden Gate 

and Bay Bridges. They have historical significance and will be retained. However, at the 

time the EIR was prepared, specific uses for these buildings had not been identified, 

although it was envisioned “the large, open exposition/hangar spaces within [these 

buildings] would flexibly accommodate a wide variety of potential uses” with minimal 

changes to the buildings’ distinctive features. Once specific architectural design 

proposals are selected, the D4D requires that Buildings 1 and 3 be rehabilitated in 
30

accordance with the United States Secretary of the Interior’s Standards for the 

Rehabilitation and Guidelines for Rehabilitating Historic Buildings (Secretary’s 

Standards). 

 The Secretary’s Standards are the benchmark that CEQA uses to establish whether 

a project will have a significant adverse impact to a historic property. Guidelines section 

15064.5, subdivision (b)(3) reads as follows: “Generally, a project that follows the 

[Secretary’s Standards] shall be considered as mitigated to a level of less than a 

significant impact on the historical resource.” 

 CSTI claims that because there is no documentation showing actual proposed 

architectural designs for Buildings 1 and 3, the EIR failed “to analyze or mitigate impacts 

to historic resources at a project-level of detail.” However, as we have emphasized, the 

Guidelines provide that if the Secretary’s Standards are adhered to, any impact to these 

historical structures that might otherwise be regarded as adverse will be considered to 

have been mitigated to insignificant levels. The EIR clearly prohibits making any 

physical alterations to Buildings 1 and 3 that do not comply with the Secretary’s 

Standards. It is difficult to imagine any more specific criteria protecting the architectural 

integrity of these structures. 

 Although CSTI claims there are proposals for the reuse of these building that 

could potentially violate the Secretary’s Standards, it does not cite evidence supporting 

this claim. This court can assume that the Project will be built as proposed, and that any 

adaptive reuses for Buildings 1 and 3 will retain their historic features in accordance with 

the Secretary’s Standards. (Dry Creek, supra, 70 Cal.App.4th at pp. 33-34 [EIR could 

assume project features would function as designed].) 

 In this regard, we note that a public comment was submitted asking what would 

happen if a reuse was proposed for one of the historic buildings that was inconsistent 

with the Secretary’s Standards. The City responded that “a future project that does not 

conform to the Secretary’s Standards is not covered in the EIR and therefore would 

require additional environmental review under CEQA.” Consequently, the door is left 

open for future, supplemental environmental review if the final project design does not 
31

meet the Secretary’s Standards, potentially creating a significant adverse impact on a 

historic resource. CEQA requires nothing more. (See Towards Responsibility in 

Planning v. City Council (1988) 200 Cal.App.3d 671, 681 [“It would be unreasonable to 

expect this EIR to produce detailed information about the environmental impacts of a 

future [building] whose scope is uncertain and which will in any case be subject to its 

own environmental review”].) 

G. Does the EIR Assure Consistency with the Tidelands Trust?

 It is well settled that tidelands remain subject to a reserved easement in the State 

for common law public trust purposes. (See generally Marks v. Whitney (1971) 6 Cal.3d 

251, 259-261.) Under the common law public trust doctrine, the state has title as trustee 

to all tidelands and is charged with “ ‘the preservation of those lands in their natural state, 

so that they may serve as ecological units for scientific study, as open space, and as 

environments which provide food and habitat for birds and marine life, and which 

favorably affect the scenery and climate of the area.’ [Citation.]” (National Audubon 

Society v. Superior Court (1983) 33 Cal.3d 419, 434-435.) There is also a statutory trust 

imposed by the Treasure Island Conversion Act of 1997 (1997 Conversion Act). (Health 

& Saf. Code, § 33492.5, Stats. 1997, ch. 898, § 12, p. 6456, as amended by Stats. 2011, 

ch. 429, § 2, pp. 4511-4512.) Both the trust doctrine and the 1997 Conversion Act are 

referred to collectively as the Tidelands Trust (Trust). The Trust generally prohibits 

residential, general office, non-maritime industrial, and certain recreational uses on lands 

that are subject to the Trust. 

 CSTI claims the EIR “failed to disclose and analyze the impacts of proposed nontrust uses on portions of T[reasure] I[sland]” that are subject to the Trust. To the extent 

CSTI frames its argument to imply that non-trust uses would be permitted on lands 

restricted by the Trust, CSTI is wrong. 

 As the EIR explains, there will be no inconsistencies between the Project and the 

Trust because the project is legally required to conform to the Trust. The EIR 

acknowledges “[a]ny portion of the Project Area that consists of tidelands and submerged 

lands, or former tidelands and submerged lands that have been filled, will become subject 
32

to the use restrictions imposed under the Tidelands Trust upon conveyance from the 

Navy to TIDA.” TIDA, the trustee of Trust properties in the Project area, “has a statutory 

duty to ensure that uses on Public Trust property are consistent with the Public Trust” and 

“may not approve any use that it finds to be inconsistent with the trust or otherwise not 

allowed under the Conversion Act.” 

 To ensure consistency, the D4D establishes a Tidelands Trust Overlay Zone 

governing all property subject to the Public Trust. TIDA must review all uses proposed 

within the overlay zone for consistency with the Trust. It was also envisioned, “as a 

matter of practice, TIDA and the State Lands Commission will continue to cooperate 

throughout planning, design, and buildout of the Proposed Project.” The EIR’s 

conclusion that the uses of areas subject to the Trust will not impact Trust values is 

therefore supported by evidence in the record, and CSTI has not pointed to evidence 

indicating otherwise. 

 CSTI’s argument appears to be that because certain proposed uses are not yet 

known to be consistent with the Trust, the project description is not sufficiently 

“accurate, finite and stable” to understand the Project’s impacts. CSTI identifies some of 

the many uses proposed for the property subject to the Trust, i.e, “solar panels, dog parks, 

and permanent recreation fields . . . .” In response to public comments, the final EIR 

addresses whether these uses would be considered permissible public trust uses. “[U]ses 

such as commercial, open space, recreational or energy uses may be found to be 

consistent depending on the extent to which such uses further Public Trust purposes.” 

(Underscoring added.) However, “[b]ecause each use on Public Trust property must be 

evaluated in light of all of the surrounding circumstances, it is premature to conclude 

whether a particular energy, commercial, open space and recreation, or 

cultural/institutional use . . . would be consistent with the Public Trust.” 

 There is nothing in this record to indicate that the Project would fail to achieve the 

required consistency with the Trust. The EIR’s analysis, summarized above, complied 

with the Guidelines, as it included “a sufficient degree of analysis to provide 

decisionmakers with information which enables them to make a decision which 
33

intelligently takes account of environmental consequences.” (Guidelines, § 15151.) 

Nothing more was required. (See Napa Citizens for Honest Government v. Napa County 

Bd. of Supervisors (2001) 91 Cal.App.4th 342, 373 [CEQA does not require lead 

agencies “to engage in speculation in order to analyze a ‘worst case scenario’ ”].) 

H. The Cross-Appeals

 As TICD and TIHDI set out in the preambles to their cross-appeals, it is only if we 

reverse the trial court’s decision denying CSTI’s petition for writ of mandate that we 

need concern ourselves with their cross-appeals. Having determined that the trial court’s 

denial of CSTI’s petition for writ of mandate should be affirmed, we need not, and do 

not, reach the issues presented in the cross-appeals. 

IV. 

DISPOSITION 

 The judgment denying the petition for writ of mandate is affirmed. In light of this 

conclusion, we need not, and therefore do not address the issues raised in the crossappeals. Costs on appeal are awarded to respondents. 

 _________________________ 

 RUVOLO, P. J. 

We concur: 

_________________________ 

REARDON, J. 

_________________________ 

RIVERA, J. 
1

Trial Court: San Francisco Superior Court 

Trial Judge: Hon. Teri L. Jackson 

Counsel for Appellant Lippe Gaffney Wagner, LLP 

Citizens for a Sustainable Keith G. Wagner, Brian Gaffney, 

Treasure Island Thomas N. Lippe, Kelly A. Franger 

Counsel for Respondents Dennis J. Herrera 

City and County of San Francisco, San Francisco City Attorney 

San Francisco Board of Supervisors, Andrea Ruiz-Esquide 

San Francisco Municipal Transportation Deputy City Attorney 

Authority, San Francisco Planning 

Commission, San Francisco Public 

Utilities Commission, and Treasure Island 

Development Authority [TIDA is also a 

Real Party in Interest] 

Counsel for Real Party in Interest and Cox, Castle & Nicholson 

Cross-Appellant Treasure Island Michael H. Zischke 

Homeless Development Initiative, Inc. Andrew B. Sabey 

Counsel for Real Party in Interest and Remy Moose Manley 

Cross-Appellant Treasure Island Whitman F. Manley 

Community Development, LLC Howard F. Wilkins III 

 Gibson, Dunn & Crutcher 

 Mary G. Murphy 

 Neil H. Sekhri