July 2013

A recent Sixth District Court of Appeal decision serves as a pointed reminder to practitioners that CEQA exemptions and limitations periods are not always neatly grouped within those statutory provisions of the Public Resources Code known as the “California Environmental Quality Act” (“CEQA”; Pub. Resources Code, § 21000 et seq.).  Statutes other than CEQA, including provisions codified in the Education Code, Government Code, Health & Safety Code, Water Code, and non-CEQA portions of the Public Resources Code also provide statutory exemptions to CEQA’s requirements.  In May v. City of Milpitas (6th Dist., 7/16/13) 217 Cal.App.4th 1307, the Court applied one such “outlier” statute — Government Code § 65457 — to affirm a judgment dismissing a carpenters’ local union’s CEQA challenge to a residential development project as time-barred.
Continue Reading Sixth District Holds CEQA Action Barred By 30-Day Statute of Limitations of Government Code Section 65457 Despite City’s Filing of Notice of Exemption

In a mostly-published 95-page opinion filed July 15, 2013, the Fifth District Court of Appeal reversed a trial court’s judgment and directed issuance of a writ of mandate setting aside Resolution 09-31 and two executive orders of the California Air Resource Board (CARB) approving Low Carbon Fuel Standards (LCFS) regulations promulgated to reduce greenhouse gas (GHG) emissions.  (Poet, LLC, et al. v. California Air Resources Board, et al (5th Dist. 7/15/13) 217 Cal.App.4th 1214, as modified on denial of rehearing at 218 Cal.App.4th 681, No. F064045.)  However, despite its finding that CARB’s actions “ran afoul of several procedural requirements imposed by CEQA and the APA” and that “these procedural violations are not trivial,” the Court tailored its remedy to protect the public interest by “allow[ing] the LCFS regulations to remain operative while [C]ARB complies with the procedural requirements it failed to satisfy.”  It stated:  “In other words, we will avoid the irony of violations of an environmental protection statute being used to set aside a regulation that restricts the release of pollutants into the environment.”
Continue Reading CARB Violated CEQA In Adopting GHG Regulations, But Fifth District Holds Regulations May Remain Operative Pending Compliance

One of the most vexing issues arising under CEQA, particularly in cases of projects involving public-private partnerships or projects requiring public agency financial assistance, is the question of when project approval occurs.  Like pregnancy, project approval is an all-or-nothing condition with profound consequences – yet the law provides no “bright line” test for when project approval, and the concomitant requirement of completed CEQA review, occurs.
Continue Reading Navigating Between CEQA’s Scylla and Charybdis: First District Applies Save Tara Analysis and Rejects Claims of Improper Project “Preapproval” in Neighbors For Fair Planning v. City and County of San Francisco

In a partially-published appellate writ decision filed July 8, 2013, the Fifth District Court of Appeal held that while CEQA’s administrative record statute (Pub. Resources Code, § 21167.6) does not impliedly abrogate the lead agency’s attorney-client privilege (or any other privileges), any privilege is waived as to any documents shared with the project developer’s counsel prior to project approval.  (Citizens For Ceres v. The Superior Court of Stanislaus County, City of Ceres, et al. (Real Parties) (5th Dist. 2003) 217 Cal.App.4th 889, Case No. F065690.  According to the Court, such documents are not protected from disclosure – and consequent inclusion in the administrative record in CEQA cases – by the common interest doctrine (derived from Evid. Code, §§ 912 and 952) “because the interests of a lead agency and a project applicant diverge fundamentally while the project application is pending….”  The Court’s decision left to another day the issue whether “administrative draft” documents may properly be excluded from the administrative record (because the trial court had not yet ruled on the issue), but appeared to express skepticism on that score in an unpublished portion of its opinion.
Continue Reading No Common Interest In CEQA Compliance Prior To Project Approval, Holds Fifth District In City of Ceres Decision That Conflicts With Third District’s California Oak Decision And Common Practice

Nothing says “battle royal” quite like pitting several of California’s heavyweight environmental laws against one another in a “winner-take-all” litigation brawl.  The Sixth District Court of Appeal recently presided over such a conflict in Save Panoche Valley v. San Benito County (6/25/13) 217 Cal.App.4th 503, a published decision in which it affirmed a judgment rejecting CEQA and Williamson Act-based challenges to the County’s EIR and findings approving a large solar power plant project on 4,885 acres of cattle grazing land in San Benito County.
Continue Reading The New Range Wars: CEQA and the Williamson Act Are Deployed To Fight Global Warming Solutions In Save Panoche Valley