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4th and Mortimer CEQA Addendum October 12, 2020 Page 4 of 15 significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. B. Tiering Under CEQA CEQA permits agencies to 'tier' EIRs, in which general matters and environmental effects are considered in an EIR "prepared for a policy, plan, program or ordinance followed by narrower or site -specific [EIRs] which incorporate by reference the discussion in any prior [EIR] and which concentrate on the environmental effects which (a) are capable of being mitigated, or (b) were not analyzed as significant effects on the environment in the prior [EIR]." (Cal. Pub. Res. Code ("PRC") § 21068.5.) "[T]iering is appropriate when it helps a public agency to focus upon the issues ripe for decision at each level of environmental review and in order to exclude duplicative analysis of environmental effects examined in previous [EIRs]." (PRC § 21093.) The initial general policy -oriented EIR is called a programmatic EIR ("PEIR") and offers the advantage of allowing "the lead agency to consider broad policy alternatives and program wide mitigation measures at an early time when the agency has greater flexibility to deal with basic problems or cumulative impacts." (14 CCR §15168.) CEQA regulations strongly promote tiering of EIRs, stating that "[EIRs] shall be tiered whenever feasible, as determined by the lead agency." (PRC § 21093.) "Subsequent activities in the program must be examined in light of the program EIR to determine whether an additional environmental document must be prepared." (14 CCR § 15168(c).) The first consideration is whether the activity proposed is covered by the PEIR. Id. If a later project is outside the scope of the program, then it is treated as a separate project and the PEIR may not be relied upon in further review. (Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307.) The second consideration is whether the "later activity would have effects that were not examined in the program EIR." (14 CCR §§ 15168(c)(1).) A PEIR may only serve "to the extent that it contemplates and adequately analyzes the potential environmental impacts of the project." (Sierra Nevada Conservation v. County of El Dorado (2012) 202 Cal.AppAth 1156). If the PEIR does not evaluate the environmental impacts of the project, a tiered EIR must be completed before the project is approved. (Id.) For these inquiries, the "fair argument test" applies. (Sierra Club, 6 Cal.AppAth 1307, 1318; see also Sierra Club v. County of San Diego (2014) 231 Cal.AppAth 1152, 1164 ("when a prior EIR has been prepared and certified for a program or plan, the question for a court reviewing an agency's decision not to use a tiered EIR for a later project 'is one of law, i.e., the sufficiency of the evidence to support a fair argument."').) Under the fair argument test, a new EIR must be prepared "whenever it can be fairly argued on the basis of substantial evidence that the project may have significant environmental impact. (Id. at 1316 [quotations omitted].) When applying the fair argument test, "deference to the agency's determination is not appropriate and its decision not to require an EIR can be upheld only when there is no credible evidence to the contrary." (Sierra Club, 6 Cal. App. 4th at 1312.) "[I]f there is substantial evidence in the record that the later project may arguably have a significant adverse effect on the environment which was not examined in the prior program EIR, doubts must be resolved in favor of 75C-23