December 2012

The Respondent City of Berkeley and Real Parties (Kapors) filed their joint Reply Brief on the Merits in the California Supreme Court in a much-watched categorical exemption case, Berkeley Hillside Preservation, et al. v. City of Berkeley, et al. (No. S201116).  The case arose from the City’s approval of a large, single-family hillside home as categorically exempt from CEQA notwithstanding project opponents’ contention that an exception to the exemptions applied due to the project’s potential for significant environmental impacts. (See my initial post on May 23, 2012 [“Supreme Court Will Review Categorical Exemption Exception in Berkeley Hillside Preservation Case”], and follow-up posts on August 2, 2012, and October 25, 2012.)
Continue Reading Supreme Court Case Involving CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions Now Fully Briefed by Parties; Amicus Briefs Are Up Next in Berkeley Hillside Preservation Matter

Meaningful CEQA reform is a topic much discussed by politicians and stakeholders, but its realization remains elusive.  For example, in-fill exemptions are fettered with multitudes of complex and convoluted conditions and exceptions to the point of uselessness.  In addition, many of the law’s most basic concepts – e.g., standards of review for exemptions; standards for permissible deferred mitigation; requirements for EIR alternatives and cumulative impacts analysis; what constitutes a “project approval,” or the appropriate environmental “baseline” – are unclear and frequently misapplied.  And what constitutes an “abusive” or “frivolous” CEQA lawsuit brings much debate among CEQA attorneys.  The uncertainty that results from these circumstances can substantially delay, increase the costs of, and ultimately kill even thoughtful, well-designed development projects.  Yet CEQA has undeniably protected and improved the quality ofCalifornia’s environment over the last 40 years and reform proposals understandably tend to be viewed with skepticism; many fear “throwing out the baby with the bathwater.”
Continue Reading CEQA Standing Reform: Could Statutory Standing Requirements Feasibly Be Tightened To Bar Anti-Competitive Lawsuits Motivated By Economic Rather Than Environmental Concerns?