CEQA Developments

Fall 2014 CEQA Roundup: Legislative and Regulatory Developments

Posted in Historic and Cultural Resources, Legislation, Mitigation, Reform

A number of recent legislative and regulatory developments in or related to CEQA will impact public agencies, developers, and practitioners in the coming year. Some significant recent developments include:

SB 743 Implementation/New Ways to Measure Transportation Impacts under CEQA. 

As previously discussed in this blog (see OPR Mulls Change in CEQA Traffic Metrics, OPR to Review Specific CEQA Guidelines Topics Proposed for 2014 Update Solicits Public InputCEQA, Sausages, And the Art of The Possible: A Closer Look at SB 743′s General CEQA Reform Provisions), the Governor’s Office of Planning and Research is currently analyzing potential alternatives to the “level of service” metric for analyzing transportation impacts under CEQA, as mandated by SB 743.  OPR has released a “preliminary discussion draft” of a new section 15064.3 of the CEQA Guidelines which sets forth the new metric, along with revisions to Appendix F identifying potential alternatives and mitigation measures.

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First District Holds CEQA’s Application To Public Agency’s Approval of Railroad Operations Is Preempted By Federal Law Despite Agency’s Agreement To Conduct CEQA Review And Preparation of EIR

Posted in Exemptions, Legislation, Litigation, Preemption, Reform, Remedies

The North Coast Railroad Authority (NCRA), a public agency established by state law, contracted with Northwestern Pacific Railroad Company (NWPRC) to allow NWPRC to conduct freight services on tracks controlled by NCRA.  Petitioner groups Friends of The Eel River (FOER) and Californians for Alternatives to Toxics (CAT) filed mandate petitions under CEQA challenging NCRA’s EIR and approval of the operations.  In affirming the trial court’s judgment denying the petitions, the First District Court of Appeal – in addressing what it termed “an issue of first impression in California” — followed uniform Federal law in holding the Interstate Commerce Commission Termination Act (ICCTA; 49 U.S.C. § 10101 et. seq.) grants the Surface Transportation Board (STB) exclusive jurisdiction over rail operations and broadly exempts state and local laws that impose “permitting or preclearance requirements (including environmental requirements)” on railroad operations or activities.  Friends of the Eel River v. North Coast Railroad Authority (1st Dist., Div. 5, 2014) ___Cal.App.4th ___, 2014 WL 4809456 (opn. filed 9/29/14).  In so holding that the ICCTA preempted CEQA’s application to a project involving railroad operations and thus barred Petitioners’ actions, the Court rejected Petitioners’ arguments that NCRA and NWPRC were estopped to assert federal preemption as a defense by NCRA’s agreement to conduct CEQA review, their positions in prior proceedings, and/or NCRA’s (later-rescinded) certification of an EIR.

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Attorney Labor For Preparing CEQA Administrative Record Is Recoverable Cost Where Specialized Knowledge Required, Holds Fourth District in Partially Published Opinion

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

In a partially-published opinion filed September 29, 2014, the Fourth District Court of Appeal affirmed an order and judgment permitting the County of San Diego to recover actual labor costs incurred for an attorney and paralegals to take over and complete preparation of an administrative record in a CEQA case where the petitioner had elected, but failed, to do so. The Otay Ranch, L.P. v. County of San Diego (2014) __ Cal.App.4th __, Case No. D064809.

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Governor Brown Is Not CEQA “Public Agency,” Holds Third District In Indian Casino Case

Posted in Legislation, Litigation, Reform

In a published decision filed September 24, 2014, the Third District Court of Appeal (per Justice Robie) held that CEQA’s definition of a “public agency” that is subject to its requirements (see Pub. Resources Code, § 21063) applies only to governmental bodies, not individuals.  Governor Brown was therefore not subject to CEQA compliance as a prerequisite to his concurrence in the Secretary of the Interior’s (“Secretary”) federal determination made under the Indian Gaming Regulatory Act (“Indian Gaming Act”; 25 U.S.C. § 2701 et seq.) that a new Indian gaming establishment in Madera County would not be detrimental to the surrounding community.  Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (NP Fresno Land Acquisitions LLC, RPI) (3d Dist. 2014) ____ Cal.App.4th ____, No. C074506.

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CEQA Administrative Record Preparation Costs – Who Pays and When? First District Provides Guidance In Coalition For Adequate Review v. City and County of San Francisco

Posted in Administrative Record, Fees and Costs, Litigation

In a published decision filed September 15, 2014, the First District Court of Appeal reversed and remanded a trial court’s post-judgment order granting an unsuccessful CEQA petitioner’s motion to tax the entire $64,144 cost bill of respondent City.  Coalition for Adequate Review v. City and County of San Francisco (1st Dist. 2014) ___ Cal.App.4th ____, Case No. A135512.

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Tentative Map Approval Is CEQA “Project”, Holds Third District In Published Opinion Also Addressing Prejudicial Error, Agency Discretion To Adopt Thresholds Of Significance, Deferred Mitigation, And Other Significant CEQA Issues

Posted in Baseline, Climate Change/GHG, Litigation, Reform, Remedies

In a lengthy published decision filed September 9, 2014, the Third District Court of Appeal affirmed in part and reversed in part the trial court’s judgment denying a writ petition challenging Colusa County’s adoption of a Mitigated Negative Declaration (MND).  The project approved was a subdivision of four adjacent parcels, comprising 159 acres of industrially-zoned land near I-5, into 16 parcels ranging from just over one to 31 acres each.  Rominger v. County of Colusa (Adams Group Inc., Real Party in Interest) (3d Dist. 2014) ____ Cal.App.4th ____, Case No. C073815.  Key holdings and “takeaways” from the 48-page opinion, which was authored by noted CEQA jurist Justice Ronald Robie, included:

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Fifth District Reaffirms Its CEQA Historicity Rules in Citizens for the Restoration of L Street v. City of Fresno

Posted in Historic and Cultural Resources, Legislation, Litigation

In a published opinion filed August 29, 2014, the Fifth District Court of Appeal affirmed a judgment granting a writ of mandate and finding that the City of Fresno erred in approving a mitigated negative declaration (MND) for an infill project involving the demolition of two houses and construction of 14 duplexes on a 1.29-acre lot in downtown Fresno.  Citizens for the Restoration of L Street v. City of Fresno (FFDA Properties, LLC, et al., Real Parties in Interest) (5th Dist. 2014) __ Cal.App.4th ___, Case No. F066498.  In resolving the cross-appeals before it, the Court of Appeal agreed with the trial court in holding that:  (1) the City violated CEQA’s procedural requirements by allowing – as required by its Municipal Code – its Historic Preservation Commission (HPC) to act as its decisionmaking body in approving the demolition permit for the project while not concurrently delegating CEQA review authority to that body; and (2) the City properly applied the “substantial evidence” – rather than the “fair argument” – standard of review in determining that the demolished houses were not “historical resources” and therefore not part of the “environment” protected by CEQA.

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Parkmerced Project Upheld Against CEQA and General Plan Inconsistency Challenges In San Francisco Tomorrow v. City and County of San Francisco

Posted in Alternatives, Climate Change/GHG, Litigation, Mitigation, Recirculation, Uncategorized

In a lengthy, mostly-unpublished opinion filed on August 14, 2014, the First District Court of Appeal affirmed the superior court’s judgment denying a writ petition challenging the Parkmerced Development Project.  San Francisco Tomorrow, et al. v. City and County of San Francisco, et al. (Parkmerced Investors Properties, LLC, Real Parties in Interest) (1st Dist., Div. 2, 2014) ____ Cal.App.4th ___, 2014 WL3973033.  A 50-page portion of the 75-page opinion, which contained the court’s detailed analysis and rejection of appellant San Francisco Tomorrow’s (“SFT”) numerous general plan inconsistency and CEQA claims, was not certified for publication.  The court did certify for publication those portions of its decision:  (1) analyzing and rejecting SFT’s direct challenges to the legal adequacy of City’s general plan; (2) holding the trial court did not err in sustaining a demurrer to SFT’s procedural due process cause of action challenging the project’s development agreement; and (3) holding the trial court did not err in including in the administrative record hearing transcripts of public meetings of the Board’s Land Use and Economic Development Committee (“LUEDC”) at which the project was considered and discussed. Continue Reading

Governor’s Passion For Legislative CEQA Reform Has Waned, Contra Costa Times Reports After Mercury News Interview

Posted in Legislation, Reform

On August 15, 2014, the Contra Costa Times reported on a wide-ranging interview of California Governor Jerry Brown conducted by the Mercury News opinion and editorial board on that same date.  While largely devoted to other topics (such as the CPUC scandal, Brown’s twin-tunnel Delta plan, and the state budget), the article interpreted Brown’s responses to questions asked about CEQA as “suggest[ing] that comprehensive reform of the California Environmental Quality Act, long one of his top priorities, is all but dead.”

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California Supreme Court Holds CEQA Inapplicable To City’s Adoption Of Qualified Voter Initiative Approving Wal-Mart “Supercenter” Project

Posted in Exemptions, Legislation, Litigation, Reform, Remedies, Uncategorized

In a concise 15-page opinion filed August 7, 2014, the California Supreme Court reversed the Fifth District Court of Appeal’s judgment which had held that a city may not adopt a voter-sponsored initiative with potential environmental impacts unless it conducts a CEQA analysis.  Tuolumne Jobs & Small Business Alliance v. The Superior Court of Tuolumne County (Wal-Mart Stores, Inc., et al., Real Parties In Interest (2014) ___ Cal.4th ___, Case No. S207173.  (For relevant case background, my initial post analyzing, criticizing, and predicting that the Supreme Court would grant review of the Fifth District’s decision can be accessed at the following link: “Impossible and Useless CEQA Review Is Required If City Opts Under Elections Code to Adopt Legislative Project Approvals Proposed by Qualified Citizen Initiative Petition – Fifth District’s Holding In Walmart Rejects Fourth District Precedent And Creates Split In Authority,” by Arthur F. Coon, posted November 8, 2012.)

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