While Real Party in Interest Wal-Mart Stores did not elect to seek California Supreme Court’s review of the Fifth District’s controversial decision in Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, the California Infill Builders Federation (Infill Builders) submitted an August 16, 2013 letter to the high court requesting that the opinion be depublished pursuant to Rule 8.1125 of the California Rules of Court. Infill Builders’ 6-page letter, authored by noted CEQA attorney Tina Thomas, “requests that the Court depublish the Opinion because it creates a new bright line rule rendering the common-interest doctrine inapplicable to pre-project approval communications between a project proponent and a decisionmaking agency.” It asserts this “uniform, inflexible rule is inconsistent with CEQA and the statutes establishing the common-interest doctrine” in numerous respects.
Continue Reading Depublication Of Fifth District CEQA Decision Creating Conflict On Common Interest Doctrine Sought By Infill Builders
August 2013
Adoption of CEQA Thresholds of Significance Is Not A CEQA “Project,” First District Holds In Reinstating BAAQMD’s 2010 Air Quality Guidelines
In a published opinion filed August 13, 2013, the First District Court of Appeal, Division Five, reversed a trial court judgment that had invalidated the Bay Area Quality Management District’s (BAAQMD) adoption of 2010 “CEQA Air Quality Guidelines” because BAAQMD did not conduct CEQA review of their potential environmental impacts. (California Building Industry Association v. Bay Area Air Quality Management District (1st Dist., Div. 5, 2013) ___ Cal.App.4th ___, 2013 WL 4083221.) In reinstating the 2010 Guidelines, which set forth new thresholds of significance for GHGs, toxic air contaminants (TACs), and PM2.5 (particulate matter 2.5 microns or less in diameter), the Court of Appeal held that a public agency’s promulgation of thresholds of significance pursuant to the procedures of the CEQA Guidelines is not itself a “project” subject to CEQA review. In so holding, and in rejecting the other arguments offered by plaintiff California Building Industry Association (CBIA) in support of the judgment, the Court touched on several significant CEQA issues, and in the process overturned a substantial CCP §1021.5 attorneys’ fee award to CBIA since it was no longer a successful party.
Continue Reading Adoption of CEQA Thresholds of Significance Is Not A CEQA “Project,” First District Holds In Reinstating BAAQMD’s 2010 Air Quality Guidelines
High Court Tackles CEQA Future Baselines In Neighbors For Smart Rail Decision
In a much-anticipated decision filed August 5, 2013, the California Supreme Court held that CEQA requires a lead agency to assess a project’s environmental impacts against an “existing conditions” baseline – and consequently disallows sole reliance on a “future conditions” baseline – unless the agency shows “by substantial evidence that an analysis based on existing conditions would tend to be misleading or without informational value to EIR users.” Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al (8/5/13) 57 Cal.4th 439. In resolving a split of authority among the District Courts of Appeal on the issue, the high court itself was divided: While six justices agreed on the result of affirming the Court of Appeal’s judgment upholding denial of a writ, and four agreed on the rule stated above, three justices believed lead agencies should be given greater discretion to select the CEQA baseline, and one justice believed the EIR’s failure to include the “existing conditions” baseline analysis required by CEQA under the majority’s rule was prejudicial error requiring that the EIR and project approval be set aside. The bottom line is that defendant Exposition Metro Line Construction Authority (Expo Authority) may proceed to construct its light-rail transit line from Culver City to Santa Monica (the “Expo Phase 2” project), and CEQA practitioners now have some new environmental baseline rules to assimilate and employ when counseling their clients.
Continue Reading High Court Tackles CEQA Future Baselines In Neighbors For Smart Rail Decision
First District Holds CEQA Categorical Exemptions For Regulatory Agency Actions To Protect The Environment Apply To Marin County’s Plastic Bag Ban Ordinance, Recognizes Case Law Split On Standard Of Review For Exceptions
After years of study, Marin County adopted an Ordinance in 2011 banning single-use plastic bags and mandating a 5-cent fee on single-use paper bags; the ordinance applies to roughly 40 retailers in the unincorporated county. The county found the ordinance categorically exempt from CEQA as “a regulatory action designed to assure the maintenance, restoration, enhancement, or protection of natural resources and the environment.” (See 14 Cal. Code Regs., §§ 15307, 15308.) Plaintiff Save the Plastic Bag Coalition (the “Coalition”) sued claiming CEQA required an EIR for such an ordinance, but the trial court denied its writ petition. On July 25, 2013, the Court of Appeal for the First Appellate District ordered published portions of its June 25, 2013 decision affirming the trial court’s judgment. (Save the Plastic Bag Coalition v. County of Marin, et al (1st Dist., Div. 3, 6/25/13, part. pub. order 7/25/13) 218 Cal.App.4th 209.)
Continue Reading First District Holds CEQA Categorical Exemptions For Regulatory Agency Actions To Protect The Environment Apply To Marin County’s Plastic Bag Ban Ordinance, Recognizes Case Law Split On Standard Of Review For Exceptions
First District Publishes Significant CEQA Decision On Legal Feasibility Of Mitigation For Prime Farmland Losses In Masonite Corporation v. County Of Mendocino
In a partially-published opinion filed July 25, 2013, the First District Court of Appeal reversed the trial court’s judgment denying a writ petition with directions that the County of Mendocino prepare and circulate a supplemental EIR for Granite Construction Company’s (Granite) terrace mining/sand and gravel quarry project adjacent to the Russian River near Ukiah. (Masonite Corporation Dist. v. County of Mendocino, et al (7/25/13, First Dist., Div. 3) 218 Cal.App.4th 230.) The opinion was mostly unpublished, with the noteworthy exception of a portion addressing mitigation for loss of prime farmland, which squarely held that Agricultural Conservation Easements (ACEs) constitute legally-feasible mitigation for the direct loss of prime farmland.
Continue Reading First District Publishes Significant CEQA Decision On Legal Feasibility Of Mitigation For Prime Farmland Losses In Masonite Corporation v. County Of Mendocino