CEQA Developments

Winners Beware – Fourth District Upholds Trial Court’s Discretion To Drastically Reduce Successful CEQA Plaintiff’s Fees In Granting CCP §1021.5 “Private Attorney General” Award

Posted in Administrative Record, Fees and Costs, Legislation, Reform

In an opinion filed March 18 and belatedly ordered published on April 13, 2015, the Fourth District Court of Appeal upheld a trial court’s discretion to award only $19,176 in attorneys’ fees under Code of Civil Procedure § 1021.5 to a successful CEQA plaintiff (SOURCE) who sought $221,198 based on a $110,599 “lodestar” with a multiplier of two. Save Our Uniquely Rural Community Environment v. County of San Bernardino (Al-Nur Islamic Center, Real Party in Interest) (4th Dist., Div. 2, 2015) – Cal.App.4th ___, 2015 WL 1259781. SOURCE, an organization of individuals, had successfully challenged San Bernardino County’s mitigated negative declaration (MND) and conditional use permit (CUP) for real party in interest Al-Nur Islamic Center’s proposed 7,512-square foot Islamic community center and mosque to be located on a 1.54-acre parcel in a residential part of the unincorporated county. Rejecting 5 of its 6 CEQA arguments, the trial court granted SOURCE’s writ petition on the sole ground that county failed to properly analyze the project’s environmental impacts from wastewater disposal, and ordered county to adequately analyze such impacts under CEQA.

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Second District Holds First Tier CEQA Analysis Suffices For Regional Board’s Setting of Novel TMDL For Lake Bed Sediment

Posted in Alternatives, Litigation, Mitigation, Subsequent Review

In a short published opinion, the Second District Court of Appeal rejected federal Clean Water Act, state Porter Cologne Water Quality Control Act, and CEQA challenges to a regional board’s Basin Plan Amendment establishing a total maximum daily load (TMDL) for lake bed sediment in a polluted terminal lake (McGrath Lake). Conway v. State Water Resources Control Board (3/30/15 2d Dist., Div. 6) ____ Cal.App.4th _____, 2015 WL 1417283, 2d Civil No. B252688.

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Supreme Court Will Review CEQA Decision Invalidating SANDAG’s 2050 RTP

Posted in Climate Change/GHG, Legislation, Litigation, Reform

On March 11, 2015, the California Supreme Court granted the San Diego Association of Governments’ (SANDAG) petition for review of the Fourth District Court of Appeal’s decision in Cleveland National Forest Foundation v. San Diego Association of Governments (Case No. S223603). As reflected on the Supreme Court’s docket, the Order granting review limited the issues to be briefed and argued to the following: “Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. 5-3-05 to comply with the California Environmental Quality Act …?” All seven justices voted to review this issue.

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California Supreme Court Construes CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions in Berkeley Hillside Preservation v. City of Berkeley Decision

Posted in Exemptions, Historic and Cultural Resources, Legislation, Litigation, Reform, Remedies

In a 46-page majority opinion written by Justice Chin and joined by four other justices, punctuated by an 18-page concurring opinion (by Justice Liu, joined by Justice Werdegar) which reads like a dissent, the California Supreme Court reversed the First District Court of Appeal’s judgment in Berkeley Hillside Preservation v. City of Berkeley (Case Nos. S201116, A131254) and remanded for further proceedings.

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Work Done Under Unchallenged CEQA Emergency Exemption Held Part Of Existing Environment Baseline In Subsequent CEQA Challenge To Permanent Permits

Posted in Baseline, Exemptions, Fees and Costs

In a decision filed January 29, and belatedly ordered published on February 18, 2015, the Fourth District Court of Appeal rejected numerous CEQA (and other) challenges to the City of San Diego’s regular, after-the-fact coastal and site development permits authorizing already-completed emergency storm drainage repair work as well as site revegetation at a hillside site in La Jolla. CREED-21 v. City of San Diego (4th Dist., Div. 1, 2015) ___ Cal. App. 4th __, 2015 WL 682777.) In so doing, it reversed the trial court’s decision granting a writ of mandate setting aside the City’s approvals, and made crystal-clear that work performed and completed under CEQA’s emergency exemption becomes part of the “existing conditions” environmental baseline for purposes of a subsequent CEQA challenge to the permanent permits when the exemption itself is not timely challenged.

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CEQA Review of Sacramento Kings Downtown Arena Project Held Legally Adequate In Published Third District Opinion

Posted in Administrative Record, Alternatives, Approval/Pre-Commitment, Legislation, Litigation

In a published opinion filed February 18, 2015, the Third District Court of Appeal rejected all legal challenges to the City of Sacramento’s EIR and CEQA compliance for approval of its new downtown entertainment and sports center (ESC) which will serve as the Sacramento King’s new home arena. Saltonstall v. City of Sacramento (3d Dist. 2015) ___ Cal.App.4th __, 2015 WL 708608. Key points of the Court’s decision, which affirmed the trial court’s judgment denying the writ sought by project opponents, include:

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Third District Rejects CEQA Challenge To Program EIR For California Department of Fish and Wildlife’s Statewide Fish Hatchery/Stocking Enterprise

Posted in Alternatives, Baseline, Litigation, Mitigation, Reform

In a lengthy published decision filed February 10, 2015, and addressing consolidated appeals in three related actions, the Third District Court of Appeal affirmed the trial court’s judgment rejecting petitioner and appellant Center for Biological Diversity’s (CBD) CEQA challenge to the California Department of Fish and Wildlife’s (CDFW) Program EIR (PEIR) reviewing on a statewide basis environmental impacts of its statutorily mandated fish hatchery and stocking enterprise – an operation that has been ongoing for more than 100 years. Center for Biological Diversity v. Department of Fish and Wildlife (3d Dist. 2015) ___ Cal.App.4th ___, 2015 WL 543704. The case addresses a number of important CEQA issues, including the rules governing use of PEIRs, baseline setting, deferral of mitigation, and alternatives analysis. (The non-CEQA portions of the opinion, which are not summarized in detail herein, held three mitigation measures CDFW imposed on an urban fishing program and private stocking permits – and which detrimentally affected private fish farmers and vendors beyond CDFW’s internal management – were “underground regulations” improperly adopted without formal compliance with the Administrative Procedure Act.)

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How CEQA’s Administrative Record Preparation Process Could Be Reformed By Eliminating CEQA Petitioners’ Statutory Option To Prepare The Record

Posted in Administrative Record, Fees and Costs, Legislation, Litigation, Reform

I recently analyzed proposed legislation (SB 122) seeking to create an alternative procedure for preparation of the CEQA administrative record concurrently with administrative proceedings on a project and prior to any litigation challenging it.  (See “Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price,” by Arthur F. Coon, posted January 22, 2015.)  Under proposed SB 122 the project applicant could initiate the alternative procedure by request to the public agency and, if the procedure were agreed to by the agency, an expedited and statutorily complete record would be prepared.  However, this would be solely at the applicant’s cost and without any ability to recover that cost even if successful in subsequent litigation.

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Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price

Posted in Administrative Record, Legislation, Litigation, Recirculation, Reform

California Senate Bill No. 122 (SB 122), introduced by Senators Jackson, Hill and Roth on January 15, 2015, appears to be the newest stab at legislative CEQA “reform.”  But numerous of SB 122’s embryonic provisions raise questions as to whether this proposed curative measure might have some deleterious side effects.

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