On May 2, 2017, the Fifth District Court of Appeal vacated its earlier order and writ, and on May 5 it granted Respondents’ request for rehearing in the CEQA litigation entitled Poet, LLC v. State Air Resources Board, et al. (“POET II”) (5th Dist. 2017) 12 Cal.App.5th 52, Case No. F073340. Upon granting various requests for judicial notice of the parties, the Court resubmitted the cause without further briefing on May 24, and issued its modified published opinion (with no change in the result) on May 30, 2017.
In a detailed 66-page published opinion filed April 10, 2017, the Fifth District Court of Appeal reversed the trial court’s order discharging a writ of mandate that was issued to compel the California Air Resources Board (“CARB”) to correct CEQA violations in connection with its 2009 adoption of low carbon fuel standards (“LCFS”) regulations. POET, LLC v. State Air Resources Board (National Resources Defense Council, Inc., Intervenor and Respondent) (2017) 10 Cal.App.5th 764, Case No. F073340 (“POET II”). The CEQA violations resulting in the writ were discussed in the Court of Appeal’s earlier published opinion, POET, LLC. V. State Air Resources Bd. (2013) 218 Cal.App.4th 68 (“POET I”), which was summarized in my blog post here.
Like the fable of the blind men and the elephant, CEQA’s prohibition on “piecemealing” of environmental review is animated by a basic recognition that the “whole” of an action under review is greater than its individual parts viewed separately. (The same important insight also underlies CEQA’s requirement to analyze a project’s cumulative impacts.) But CEQA’s expansive and rather amorphous definition of what constitutes a “project” ensures that its piecemealing rule shares another similarity with the famous fable: what conduct constitutes improper piecemealing often appears to be in the “eye of the beholder” and individual perceptions can differ greatly based on more-or-less subjective factors. Appellate courts have long wrestled with application of the relevant legal principles, which essentially attempt to prohibit a lead agency’s “chopping up” of a project into smaller components so that it can turn a “blind eye” to reasonably foreseeable environmental impacts of the “whole” action.
On March 30, 2017, the Sixth District Court of Appeal issued a published opinion that rejected piecemealing and other CEQA challenges raised by the plaintiff/appellant group Aptos Council to several zoning ordinance amendments separately adopted and reviewed for CEQA purposes by the County of Santa Cruz; the enactments addressed discrete topics, but were all initiated by County as part of its general “regulatory reform” effort to “modernize, clarify, streamline and/or provide [clear] standards” for its land use regulations. Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266.
In a 46-page opinion filed February 14 and ordered published on March 15, 2017, the Fourth District Court of Appeal rejected numerous CEQA challenges to Riverside County’s approval of an EIR for Specific Plan 380, a 200-acre master-planned, mixed-use community in the County’s French Valley region. Residents Against Specific Plan 380 v. County of Riverside (Hanna Marital Trust, Real Party in Interest) (4th Dist., Div. 2, 2017) 9 Cal.App.5th 941. In affirming the trial court’s judgment denying the plaintiff/appellant group’s mandate petition, the Court of Appeal found no merit in any of the group’s arguments that County failed to comply with a number of procedural, informational and substantive CEQA requirements.
In an opinion filed November 29, and belatedly ordered published on December 22, 2016, the First District Court of Appeal affirmed the trial court’s denial of a writ petition challenging on CEQA grounds the San Francisco Municipal Transportation Agency’s (Muni) approval of a light rail construction contract. The Committee For Re-evaluation of the T-Line Loop, et al v. San Francisco Municipal Transportation Agency, et al (Mitchell Engineering, Real Party in Interest) (1st Dist., Div. 2, 2016) 6 Cal.App.5th 1237. The contract was to install the final 900 feet of light rail line needed to complete a partially constructed “Loop” around a City block in the Dogpatch neighborhood, so that trains on the T-Third light rail line will be able to turn around and lay over to meet service needs for special events and peak travel periods. In approving the contract, Muni relied on the 1998 EIS/EIR (FEIR) certified for the two-phase Third Street Light Rail Project to connect southeastern San Francisco by light rail to the rest of the City; it also relied on SF Planning Department statements in 2012 and 2014 that the FEIR analyzed the Loop and that no further CEQA analysis was needed because there had been no substantial changes in the project or the area.
Continue Reading Completing the Loop Without Reinventing the Wheel: First District Holds 1998 EIR Adequate Without Further CEQA Review to Analyze Impacts of SF Muni’s Delayed Completion of Dogpatch Area Light Rail Line Loop
On November 7, 2016, the Third District Court of Appeal filed a published opinion mostly upholding the EIR for a 48.75-acre, 328-unit residential infill project (known as McKinley Village) against various CEQA challenges, and finding the Project to be consistent with the City of Sacramento’s general plan. East Sacramento Partnership for a Livable City v. City of Sacramento (Encore McKinley Village, LLC, Real Party in Interest) (3d Dist. 2016) 5 Cal.App.5th 281, 2016 WL 6581170. In a pointed reminder that a perfectly CEQA-compliant EIR for a large infill project is difficult to prepare, however, the Court found merit in a single argument of the petitioner and appellant neighborhood group, ESPLC – its argument that “the EIR ignored [certain] significant traffic impacts.” Specifically, the EIR failed to adequately support its less-than-significant (LTS) impact conclusion concerning such impacts, in light of a substantial project-caused degradation in level of service (LOS) at affected intersections and streets that was nonetheless compliant with the General Plan’s policy that LOS F was acceptable for the area. Accordingly, the Court of Appeal reversed the trial court’s judgment upholding the EIR, and ordered it to issue a writ directing the City to set aside its certification and correct this lone deficiency prior to considering recertification.