CEQA Developments

Recent CEQA Developments In The Legislature And Courts

Posted in Climate Change/GHG, Legislation, Litigation, Reform

As we move past summer, into fall, the “back-to-school,” and football seasons, and toward daylight savings time – and a possible shutdown of the federal government – it is time to reflect and take stock of the really important things . . . like recent CEQA developments of interest:

  • SB 743 signed by Governor Brown.

On September 27, 2013, and as expected, Governor Brown signed into law SB 743, the year’s only significant, albeit incremental, “CEQA reform” measure.  For a summary of SB 743’s substantive content – as well as what the new law doesn’t do – see “CEQA, Sausages, And The Art of The Possible:  A Closer Look at SB 743’s General CEQA Reform Provisions” by Arthur F. Coon and Matthew C. Henderson, posted on September 16, 2013.

  • “Fracking” Bill (SB 4) signed by Governor Brown.

On September 20, 2013, Governor Brown also signed into law a significant bill addressing numerous aspects of the controversial oil and gas extraction industry practice of hydraulic fracturing (SB 4, Pavley).  While a complete summary is beyond this post’s scope, among other things, the law defines the terms “hydraulic fracturing,” “well stimulation treatment fluid,” “base fluid” and “additive”; imposes numerous disclosure and notice requirements on well operators; and requires the Division of Oil, Gas, and Geothermal Resources, in consultation with DTSC, CARB, the SWRCB, the Department of Resources Recycling and Recovery, and relevant local air districts and water boards, to adopt implementing regulations on or before January 1, 2015.  (Pub. Resources Code, §3161(a).)  As specifically relevant to CEQA, the new law requires the well operator to apply for and obtain a permit from the Division’s supervisor or district deputy prior to performing a well stimulation treatment (§3160(d)(1)); it also provides that “[w]here the supervisor determines that the activities proposed in the well stimulation treatment permit or the combined authorization have met all of the requirements of [CEQA], and have been fully described, analyzed, evaluated, and mitigated, no additional review or mitigation shall be required.”  (§3160(d)(2)(B).)  Further, fracking activities may be authorized by the Division, upon notice by a well operator and prior to adoption of implementing regulations, upon numerous specified conditions including that “[t]he division conducts an environmental impact report (EIR) [as specified] pursuant to [CEQA], in order to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state.”  (§3161(b)(3).)

  • No Action Yet Taken By Supreme Court on Ceres Case Depublication Request.

The California Supreme Court has yet to act on Infill Builders’ August 16, 2013 letter requesting depublication of the Fifth District’s controversial decision in Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889.  The Rules of Court provide no deadline for the high court’s action on the request, which seeks to eliminate a conflict in published appellate decisions over the scope of the “common interest” exception to privilege waiver by disclosure in CEQA cases.  For further information on the depublication request and the substance of the Fifth District’s decision, see my prior posts, “Depublication of Fifth District CEQA Decision Creating Conflict on Common Interest Doctrine Sought By Infill Builders,” posted August 26, 2013, and “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”, posted July 9, 2013.

  • Numerous CEQA Lawsuits Challenge Plan Bay Area – SB 375 Sustainable Communities Strategy.

Providing further evidence that California’s complex and far reaching environmental laws sow the seeds of their own destruction, the California Environmental Insider reported in its August 31, 2013 issue that no less than three CEQA lawsuits – all filed in Alameda County Superior Court by groups with wildly divergent interests – have been deployed to challenge Plan Bay Area, the ABAG/MTC Sustainable Communities Strategy (SCS) recently approved to implement SB 375 and achieve the GHG emissions reduction targets set by CARB under it.  The CEQA suit filed by the property rights-oriented Pacific Legal Foundation challenges the accuracy of the SCS’s “baseline” assumptions about GHG emissions, claiming they fail to account for new vehicle emissions reductions and thus overstate both the impacts of the “no action” alternative and the quantum of reductions actually needed for the SCS to meet SB 375’s targets.  The CEQA suit filed by Communities for a Better Environment (CBE) and the Sierra Club claims Plan Bay Area overstates its efficacy by improperly counting emissions reduction measures that would occur in any event, and it also makes the traditional “shotgun”-style CEQA plaintiffs’ attack on the EIR’s project description, cumulative impacts analysis, mitigation, and impacts analysis.  Finally, the BIA’s CEQA suit alleges that Plan Bay Area violates SB 375’s jobs-housing balance requirement and its mandate that the SCS adequately plan for housing the entire regional population; according to the BIA, these flaws have rendered the CEQA process a “post-hoc rationalization” of a plan providing for woefully inadequate housing.