November 2012

In a recent published decision addressing cumulative impacts, deferred mitigation, and water supply analysis issues, the Fourth District Court of Appeal’s most significant CEQA pronouncements may have been those addressing permissible remedies under Public Resources Code § 21168.9.  Specifically, in Preserve Wild Santee v. City of Santee (4th Dist. 2012) 210 Cal.App.4th 260, the Court of Appeal made the following points:
Continue Reading Common Sense Reading of CEQA Remedies Statute Authorizes “Limited Writ” for Violations, Fourth District Holds, Rejecting Contrary Fifth District Decision

In a case notable for its unique conception of “meaningful discretion” for purposes of triggering CEQA review, the Fifth District Court of Appeal has created a split in authority that will undoubtedly require Supreme Court review (or depublication) to resolve.  In its partially published opinion in Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County (Wal-Mart Stores, Inc., RPI) (5th Dist.10/30/12) ___ Cal.App.4th ___ 2012 WL 5350450, the Court of Appeal granted a writ of mandate directing the Superior Court to overrule a demurrer it had sustained without leave to two causes of action of a CEQA writ petition.  The petition challenged the City of Sonora’s action approving without alteration a qualified citizen-initiated ballot proposal — dubbed the “Walmart Initiative” — that would enact the necessary legislative approvals (general plan, specific plan and zoning enactments) to expand an existing 130,000-square foot Walmart store into a larger “Supercenter” that sold groceries and operated 24 hours a day, seven days a week. 
Continue Reading 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

A unanimous Third District panel upheld SiskiyouCounty’s EIR for Roseburg Forest Products Co.’s (Roseburg) electricity cogeneration project involving expansion of its existing wood veneer manufacturing facility.  (Mount Shasta Bioregional Ecology Center v. County of Siskiyou (3d Dist. 9/26/12) 210 Cal.App.4th 184.  In rejecting the CEQA challenge brought to the EIR by plaintiffs Mount Shasta Bioregional Ecology Center (MSBEC) and Weed Concerned Citizens (WCC), the Court of Appeal resolved a key issue of first impression regarding the adequacy of an EIR’s alternatives analysis.  It also rendered numerous holdings reaffirming the substantial deference CEQA accords to an EIR’s analysis and conclusions, and reinvigorating CEQA’s “established [statutory] principle that there is no presumption that error is prejudicial.”  (Pub. Resources Code, § 21005(b).)  
Continue Reading EIR Satisfies CEQA Despite Minor Deficiencies and Inaccuracies Where Environmental Review Process Not Prejudiced, Third District Holds