January 2013

Harmonizing CEQA’s rules and principles is, to say the least, not always easy, and is often quite challenging.  The relevant concepts are often in tension, or are so malleable that they can be argued or construed to conflict.  For example, environmental review must commence at the earliest “practicable” time, in order to make fully informed decisions at a project’s formative stages and avoid undue project “momentum” or “post-hoc rationalizations”; yet it should not occur so early that it would be “speculative” or not “meaningful” due to lack of sufficient data from a crystallized development project proposal.  To cite another example, a “project” refers to the “activity being approved,” but also to the “whole of an action” and not just individual discretionary permits that trigger CEQA review.  And, a “project approval” occurs at the lead agency’s earliest commitment to a “definite course of action” regarding a proposed project.  Fuzzy concepts like these can be difficult to apply, and supply ample fodder for CEQA litigation.  They tend to produce heavily fact-specific decisions offering unclear guidance to lead agencies and project proponents.
Continue Reading Fourth District Applies CEQA’s “Murky” Piecemealing Tests To Reject “Project Definition” Challenge To Park Development in Banning Ranch Conservancy

It is a fundamental precept of CEQA that it applies only to the discretionary approval of a project.  If an agency has no discretion to deny or shape the project to address environmental concerns, CEQA review would be a pointless and futile exercise, no matter what adverse environmental impacts of the project it might reveal.  Recent decisions continue to illustrate how an agency’s discretion under substantive law constrains CEQA’s applicability as a threshold matter, and how it can also affect the scope of required environmental review when CEQA does apply.
Continue Reading Recent Cases Show How CEQA’s Applicability And Substantive EIR Requirements Are Determined By Meaningful Agency Discretion