CEQA Developments

Eight Is Not Enough: CEQA Challenge To Eighth Addendum To San Jose International Airport Master Plan EIR Is Rejected By Sixth District, Which Holds Plan Modifications To Accommodate Projected Decreases In Air Cargo and General Aviation Are Not “New Project” Requiring Supplemental or Subsequent EIR

Posted in Climate Change/GHG, Legislation, Litigation, Subsequent Review

In a decision filed June 6, but not certified for publication until July 2, 2014, the Sixth District Court of Appeal affirmed the trial court’s judgment upholding the City of San Jose’s eighth addendum to its Airport Master Plan against plaintiff Citizens Against Airport Pollution’s (CAAP) CEQA challenge.  Citizens Against Airport Pollution v. City of San Jose, et al., __ Cal.App.4th __, 2014 WL 2987959 (6th Dist. 2014).

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Whatever the EIR’s Name, CEQA’s Rules For Substantive Content and Subsequent Review Remain The Same: First District Upholds EIR for Treasure Island Redevelopment Project

Posted in Litigation, Recirculation, Uncategorized

On July 7, 2014, the First District Court of Appeal filed its published opinion affirming the trial court’s judgment upholding the EIR for the Treasure Island/Yerba Buena Island Project.  Citizens for a Sustainable Treasure Island v. City and County of San Francisco, et al. (Treasure Island Community Development LLC, RPI), __ Cal. App. 4th __, 2014 WL 3057986 (1st Dist. 2014).

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Fifth District Upholds CEQA Exemptions For Ongoing Pre-CEQA Projects And Continued Operation of Existing Facilities To Reject Challenge To Two-Year Interim CVP Water Contract Renewals

Posted in Baseline, Exemptions, Legislation, Litigation

In a July 3, 2014 published decision more notable for the practical importance of the water rights involved than the CEQA law applied, the Fifth District Court of Appeal rejected the CEQA challenges of various environmental groups and a tribe.  North Coast Rivers Alliance, et al., v. Westlands Water District, et al., __ Cal.App.4th __, 2014 WL 2986668 (5th Dist. 2014).  The lawsuit sought to overturn statutory and categorical exemptions claimed for six 2-year interim renewal contracts between the U.S. Bureau of Reclamation (USBR) and several water districts (i.e., Westlands Water District and its related distribution districts) for Central Valley Project (CVP) water to be delivered, received and distributed within the district’s 600,000+ -acre boundaries.

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Supreme Court’s CEQA Docket Expands With Grant of Review in Newhall Ranch Case

Posted in Baseline, Climate Change/GHG, Litigation, Mitigation

On July 9, 2014, the California Supreme Court granted the petition for review filed by Plaintiff/Respondent Center for Biological Diversity (CBD) in Center for Biological Diversity, et al. v. Department of Fish and Game (Newhall Land Farming Company) (2d Dist. 2014) 224 Cal.App.4h 1105 (Supreme Ct., Case No. S217763).  The new grant adds to the half dozen other CEQA cases in which the Supreme Court has granted review in the last few years.

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First District Applies CEQA Feasibility Analysis, Holds BCDC’s Rejection of Suisun Marsh Landfill Expansion Project Alternatives As Economically Infeasible Was Supported By Substantial Evidence

Posted in Alternatives, Litigation

In a decision filed April 29, and ordered published on May 28, 2014, the First District Court of Appeal reversed the trial court’s judgment granting a writ petition and upheld the decision of the San Francisco Bay Conservation and Development Commission (“BCDC”) permitting expansion of the Potrero Hills Landfill within the Secondary Management Area of the Suisun Marsh.  SPRAWLDEF v. San Francisco Bay Conservation and Development Commission (Waste Connections, Inc., RPI) (1st Dist., Div. 1, 2014) 226 Cal. App. 4th 905.

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First District Holds CEQA Statute Of Limitations Bars Citizens Group’s Challenge To College Of San Mateo Tree Cutting

Posted in Litigation, Remedies, Statute of Limitations

In a published opinion, the First District Court of Appeal reversed the trial court’s judgment granting a writ and held that a CEQA action filed by a citizens group against a community college district and its board of trustees was time-barred under either the 30- or 180-day statute of limitations contained in Public Resources Code § 21167.  Citizens for a Green San Mateo v. San Mateo County Community College District, et al. (1st Dist. 6/17/2014) __ Cal.App.4th __, 2014, WL 2735052.

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Fifth District Decides Significant CEQA Air Quality/Health Impact Analysis and Mitigation Issues In Sierra Club v. County of Fresno

Posted in Litigation, Mitigation, Recirculation

In a lengthy and scholastic published opinion filed May 27, 2014, the Fifth District Court of Appeal reversed and remanded the trial court’s decision, which had upheld the EIR and other approvals (including a General Plan Amendment, Specific Plan, rezoning, and Development Agreement) for the Friant Ranch project.  The proposed project was a master-planned senior community to be located on 942 acres of unirrigated grazing land adjacent to Friant near the San Joaquin River.  Sierra Club v. County of Fresno (5th Dist. 2014) __ Cal.App.4th __, 2014 WL 2199317.  The Court of Appeal rejected Plaintiffs’ and Appellants’ claims of General Plan inconsistency and inadequate hydrogeology and wastewater disposal analysis, but found the EIR’s air quality impacts analysis insufficient and its related mitigated measures vague, unenforceable and improperly deferred.  The lengthy opinion contains various holdings and analyses of interest to CEQA and land use practitioners and their clients; while few break truly new ground, many serve as helpful reminders, primers and interstitial analyses of settled principles.  Key takeaways in this regard include:

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San Francisco Beautiful CEQA Decision Interpreting Class 3 Categorical Exemption For Installation of Small Structures Is Ordered Published By First District

Posted in Baseline, Exemptions, Litigation, Mitigation

On May 30, 2014, the Court of Appeal for the First Appellate District (Division 4) filed its order denying rehearing and granting the requests of real party in interest AT&T, Verizon, Remy Moose Manley and others to publish its April 30 opinion in San Francisco Beautiful, et al. v. City and County of San Francisco, et al. (AT&T California, RPI) (1st Dist. 2014) ___ Cal.App.4th___, 2014 WL1694992.  The case involved a challenge, by plaintiffs comprised of numerous citizens and neighborhood groups, to the City’s determination that AT&T’s “Lightspeed” project was categorically exempt from CEQA and therefore didn’t require an EIR.  The project involved installing 726 new utility cabinets – most to be 48” high, 51.7” wide, and 26” deep – at undetermined locations on public sidewalks throughout the City within 300 feet of existing cabinets, in order to upgrade broadband speed and capabilities using an expanded fiber-optic network.

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CEQA “Late Hit” Reform Bill (SB 1451) Is Withdrawn By Author

Posted in Legislation, Litigation, Reform

Earlier this month, I posted an entry regarding the latest legislative effort at meaningful CEQA reform.  See New CEQA Reform Bill (SB 1451) Proposes Positive Changes That Would Reduce “Late Hit” Document Dumps and Extend Indefinitely Current Standing Requirements For After-Formed Organization Plaintiffs, by Arthur F. Coon, posted May 1, 2014.  I was genuinely enthused about SB 1451’s content and its prospects, thoughts I shared at length with a Daily Journal reporter who contacted me shortly after my post in connection with a story she was writing on the proposed law.

Unfortunately, the prospect of meaningful legislative CEQA reform offered by SB 1451 was short-lived.  Less than a week after my post, the bill’s author, Senator Hill, requested cancellation of a May 6 hearing on the bill that had been set before the Senate Committee on the Judiciary.  My Daily Journal reporter contact tabled her story; for all intents and purposes, it appears that SB 1451 is “dead in the water.”  A contact in the environmental consulting industry relates that a trusted source has advised that political pressure from organized labor interests killed the bill.  This outcome is certainly not surprising, but it is nonetheless disappointing to proponents of meaningful and common-sense CEQA reform.

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Spring 2014 CEQA Roundup

Posted in Legislation, Litigation, Reform, Uncategorized

It’s that time of year again – business mixers, the Giants in first place in the NL west, the school year winding down, the NBA and NHL playoffs in full swing, coastal whale migrations, California bursting with beautiful weather, flora and fauna … and, of course, the Spring CEQA roundup!  So here goes the latest potpourri of CEQA developments, big and small:

*           New Rules of Court address Environmental Leadership development project litigation.  On April 25, 2014, and as required by 2013 legislation (SB 743) the Judicial Council adopted new Rules of Court governing and aimed at significantly expediting litigation of CEQA challenges to a select class of “green” mega’ projects, i.e., those certified by the Governor as “environmental leadership development projects.”  The ambitious new rules, which seek to shave years off the litigation timeline for CEQA suits challenging such projects, will become effective July 1, 2014.  They consist of the adoption of Cal. Rules of Court, rules 3.1365, 3.2200, 3.2220-3.2237, 8.700-8.705; renumbering and amendment of rules 3.1366 and 3.1367 as rules 3.2206 and 3.2207; renumbering of rules 3.1365 and 3.1368 as rules 3.2205 and 3.2208; amendment of rule 8.104; and repeal of rule 8.497.

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