CEQA Developments

Motion to Amend CEQA Action Judgments to Make Additional Judgment Debtor Liable For Million Dollar Fee Award Not Barred By Plaintiffs’ Unreasonable Four-Year Delay Or Laches Absent New Party’s Showing Of Prejudice, Holds Fourth District

Posted in Fees and Costs, Litigation, Remedies, Statute of Limitations

In a published opinion filed January 26, 2016, the Court of Appeal for the Fourth Appellate District (Division 2) reversed a trial court’s order denying CEQA plaintiffs’ motion to amend judgments entered four (4) years earlier to add a previously unnamed corporate entity so that it would be liable on award of over $1 million in attorneys’ fees entered under CCP § 1021.5. Highland Springs Conference And Training Center v. City of Banning (SCC Acquisitions, Inc., et al., Real Parties in Interest) (4th Dist., Div. 2, 2016) _____ Cal.App.4th _____, 2016 WL 308841.

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OPR Releases Revised Proposed CEQA Guidelines Amendment To Implement SB 743 Traffic Analysis Mandates

Posted in CEQA Guidelines, Climate Change/GHG, Cumulative Effects, Land Use, Legislation, Mitigation, Reform

The evolution of CEQA traffic impacts analysis from level of service (LOS) methodology to a vehicle miles traveled (VMT) analysis continues apace. The latest step in this revolutionary paradigm shift was the January 20, 2016 release by the Governor’s Office of Planning and Research (OPR) of its “Revised Proposal on Updates to the CEQA Guidelines on Evaluating Transportation Impacts in CEQA” (the “Revised Proposal”).

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When CEQA Violations Are An Afterthought: Fourth District Upholds Trial Court’s Independent Judgment Determination That City Of Anaheim Is Equitably Estopped To Unilaterally Modify Resort Hotel CUP Conditions

Posted in Land Use, Litigation, Mitigation, Police Power, Remedies, Standard of Review, Uncategorized

CEQA and land use law in California go together like a hand in a glove. Due to CEQA’s broad scope and exacting substantive and procedural requirements, it is relatively easy to plead a cause of action for CEQA violations in most instances where land use approvals or entitlements for a development project are challenged.  CEQA claims thus play a prominent, and often leading, role as petitioners’ litigation “weapon of choice” in most such land use disputes.

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CDFA Program EIR Violates CEQA By Failing To Analyze Invasive Moth Control Program As Alternative To Eradication, Holds Third District

Posted in Alternatives, Cumulative Effects, Litigation, Recirculation, Remedies, Standard of Review, Subsequent Review

In a lengthy opinion filed December 2, 2015, and belatedly ordered published on January 4, 2016, the Third District Court of Appeal invalidated the California Department of Food and Agriculture’s (CDFA) programmatic EIR for a seven-year program to eradicate an invasive pest – an Australian native insect known as the light brown apple moth (LBAM) – that threatens California’s native plants and agricultural crops. North Coast Rivers Alliance, et al. v. A.G. Kawamura/Our Children’s Earth Foundation, et al. v. California Department of Food and Agriculture (2015) ___ Cal.App.4th ____, 2015 WL 9598273 (consolidated appeals C072067, C027617).  It reversed the trial court’s judgments denying appellants’ mandate petitions and remanded with directions to grant them.

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Supreme Engagement: CEQA’s Continuing Saga In California’s High Court

Posted in Baseline, CEQA-in-reverse, Climate Change/GHG, Exactions, Exemptions, Exhaustion, Land Use, Litigation, Mitigation, Preemption, Reform, Remedies, Standard of Review, Standing, Statute of Limitations, Subsequent Review

A new year often brings fresh perspective.  With 2016 still in its infancy, it is natural to reflect back on what has been and also to contemplate what is yet to come.  The California Supreme Court’s recent CEQA decisions, and its current docket of CEQA cases awaiting decision, provide ample opportunity for both of these basic human impulses.

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California Supreme Court Holds “CEQA-In-Reverse” Is Not The Norm, Reverses And Remands First District’s Judgment In CBIA v. BAAQMD

Posted in CEQA-in-reverse, Climate Change/GHG, Cumulative Effects, Exemptions, Land Use, Litigation, Reform, Standard of Review

In a unanimous 24-page opinion authored by newly seated Justice Cuellar and filed December 17, 2015, the California Supreme Court resolved a fundamental issue regarding CEQA’s scope, holding that – with certain specific statutory exceptions – it does not compel what many practitioners have referred to as a “CEQA-in-reverse” analysis. California Building Industry Association v. Bay Area Air Quality Management District (2015) ___ Cal.4th ____, 2015 WL ______, Case No. S213478.

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First District Reissues Slightly Modified Opinion on Retransfer From Supreme Court Rejecting Most CEQA Challenges to Cal State East Bay Campus Expansion EIR

Posted in Baseline, Litigation, Mitigation, Reform

On November 30, 2015, following a grant and retransfer from the California Supreme Court and reconsideration in light of City of San Diego v. Board of Trustees of California State University (2015) 61 Cal.4th 945, the First District Court of Appeal (Division 3) reissued in slightly modified form its decision in City of Hayward v. Board of Trustees of the California State University (1st Dist., Div. 3 2015) ___ Cal.App.4th ___, 2015 WL 773217. The partially published opinion reaches essentially the same result, with the same reasoning, as did the Court of Appeal’s initial opinion, which was certified for publication on June 26, 2012. For the case’s facts, procedural history, holdings, and (in my view) most significant analyses, the reader should consult my prior post. (See, “First District Reaffirms CEQA Is Concerned With Physical Impacts On The Environment, Not Economic Ones On Government Services,” by Arthur F. Coon, posted on July 12, 2012.)  Continue Reading

Lost in Translation: Supreme Court Elucidates CEQA GHG Analysis, “Fully Protected” Species Take Prohibition, And Issue Exhaustion In Decision Finding Newhall Ranch Development EIR Flawed

Posted in Baseline, Climate Change/GHG, Cumulative Effects, Historic and Cultural Resources, Litigation, Mitigation, Reform, Responses to Comments, Standard of Review

In a 5-2 decision filed November 30, 2015, the California Supreme Court reversed the judgment of the Court of Appeal which had upheld the EIS/EIR for the controversial Newhall Ranch development project. Center For Biological Diversity, et al. v. California Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (2015) __ Cal.4th __, 2015 WL 7708312. The high court approved the EIS/EIR’s methodology analyzing the significance of the project’s greenhouse gas (GHG) emissions in terms of reductions from projected “business as usual” (BAU) emissions consistent with AB 32’s statewide reductions mandate, rather than against some absolute numeric limit above the project site’s “baseline” emissions. However, it held the GHG analysis lacked supporting substantial evidence and a cogent explanation correlating the project-specific reductions to AB 32’s mandated state-wide reductions so as to demonstrate consistency with the latter’s goals under the approved methodology. The Court further held the EIS/EIR violated Fish & Game Code § 5515’s prohibition on the taking of “fully protected” fish species by including mitigation measures providing for the collection and relocation by USFWS of the unarmored threespine stickleback. Finally, the Court held – under the particular factual circumstances of the case – that certain issues raised by plaintiffs during an optional public comment period on the Final EIS/EIR were timely raised so as to sufficiently exhaust administrative remedies under Public Resources Code § 21177(a).

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Not Its First CEQA Rodeo: Third District Again Upholds Class 23 Categorical Exemption For 2011 Watsonville Rodeo Event On Remand From Supreme Court

Posted in Exemptions, Litigation, Mitigation, Reform, Standard of Review

In the Spring of last year, I posted an analysis of what I called the Third District Court of Appeal’s “exceptionally thorough and well-reasoned opinion” in Citizens for Environmental Responsibility v. State of California ex rel 14th District Agricultural Association (3d Dist. 2014) 224 Cal.App.4th 152, rev. gtd. and action deferred 7/9/14. (See, “Third District Construes CEQA Guidelines’ Class 23 Categorical Exemption And “Unusual Circumstances” Exception In Rejecting Challenge To Watsonville Rodeo Event”, by Arthur F. Coon, posted April 7, 2014.) In concluding that post, I noted that the Third District’s position on application of the “unusual circumstances” exception to categorical exemptions was “very clear” and “also diametrically opposed to that taken by the First District in a case in which the California Supreme Court has granted review, and which [had at that time] been pending for almost two years in that Court, Berkeley Hillside Preservation et al. v. City of Berkeley, et al., Case No. S20116.”

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State Lands Commission’s CEQA Review of SF Bay/Delta Sand Mining Project Approval Is Adequate, But Fails to Fulfill Obligation to Consider Public Trust Doctrine

Posted in Administrative Record, Alternatives, Baseline, Cumulative Effects, Land Use, Legislation, Public Trust Doctrine, Recirculation, Responsible and Trustee Agencies

The First District Court of Appeal held the California State Lands Commission’s (“CSLC”) EIR for a project involving the lease of sovereign lands beneath San Francisco Bay for private dredge mining of sand complied with CEQA; however, it partially reversed the trial court’s judgment denying a writ because the record failed to demonstrate CSLC’s compliance with the public trust doctrine. San Francisco Baykeeper, Inc. v. California State Lands Commission (Hanson Marine Operations, Inc., et al., Real Parties In Interest) (1st Dist., Div. 4, 2015) ___ Cal.App.4th ___, 2015WL 7271956, filed 11/18/15.

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