In a published opinion filed on February 1, 2021, in an action arising from plaintiffs/appellants’ (“plaintiffs”) “potpourri” of unsuccessful legal challenges to the City of San Francisco’s decision to remove a controversial public monument celebrating California’s pioneer era, the First District Court of Appeal upheld dismissal of a CEQA claim for failure to exhaust administrative remedies. Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470.
I’m very pleased to report that my colleague Travis Brooks will be speaking on CEQA issues and recent developments online at the 35th annual California Water Law & Policy Conference, which is presented by Argent Communications and will take place in virtual format on April 19 and 21, 2021. Miller Starr Regalia is a sponsor of the conference “California Water Rights, Policies Regulation, and the Future Under the New Administration,” and Travis’s topic, “CEQA Update: Yes, Water Practitioners Need to Know This,” will be presented on April 19, 2021, at 1:15 p.m. The Conference webpage and brochure can be found here and here, and registration information and materials can be accessed here.
“The more I know, the less I understand/All the things I thought I’d figured out, I have to learn again” – Don Henley, “The Heart of the Matter”
One of CEQA’s bedrock principles is that environmental review must precede project approval. (E.g., POET, LLC v. California Air Resources Board (2013) 217 Cal.App.4th 1214; CEQA Guidelines, § 15004(a).) To reverse the order and “put the cart before the horse” would be anathema, i.e., to sanction uninformed and undemocratic lead agency decision making, and to encourage irretrievable commitments of resources and post-hoc rationalizations that foreclose mitigations and alternatives and sweep environmental considerations under the rug. Right? Well … maybe not. In the area of State Water Resources Control Board (“SWRCB” or the “State Board”) water quality certifications (“WQCs”) under the Federal Clean Water Act (“CWA”; 33 U.S.C § 1251 et seq), this bedrock principle appears to have been watered down, and it may be significantly eroding under pressure from a preemptive federal law deadline.
As readers of this blog know, my endeavor since its inception with regard to judicial developments has, in general, been to cover only published CEQA cases. I have two simple reasons for this, which essentially boil down to importance and practicality. With regard to my first reason, published cases are more important because they are legal precedents that state holdings and rules binding on everyone, not just the parties to the action. With respect to my second reason, CEQA is generally an active area of law in terms of appellate cases, new legislation, and other significant developments; keeping track of the published – i.e., most important – cases is a big enough task without worrying about the even greater number of non-precedential unpublished ones. Since this blog’s beginning in September 2011, it has produced a total of 347 CEQA-related posts (not counting this one), demonstrating there is generally no shortage of subject matter, even with my self-imposed limitation excluding unpublished decisions.
While the COVID-19 pandemic made 2020 a year most would prefer to keep in the rear view mirror, the courts kept fairly busy handing down precedents that hopefully provided us all with a better road map for navigating CEQA. What follows is not a comprehensive review, but more of a brief trip down memory lane to review a “baker’s dozen” of last year’s case law highlights.
In a published opinion filed December 29, 2020, the First District Court of Appeal affirmed a judgment denying a petition for writ of mandate filed by the Santa Clara Valley Water District (District) challenging waste discharge requirements (WDRs) belatedly imposed by a responsible agency, the San Francisco Bay Regional Water Quality Control Board (Board), on lead agency District’s flood control project. Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199. The case involved highly unique facts, and a number of interesting legal issues concerning the Board’s authority under the Federal Clean Water Act (CWA), the state Porter-Cologne Act, and CEQA.
Continue Reading Can a Responsible Agency Get A Second Bite At The CEQA Apple? First District Says “Sometimes, Yes,” Upholds Regional Water Board’s Imposition of Additional Mitigation On Flood Control Project Through “Independent” Porter-Cologne Act Authority Exercised Subsequent To Grant Of CWA § 401 Water Quality Certification Based On Lead Agency’s Unchallenged Final EIR
As we rapidly approach the end of a year of COVID-related challenges and uncertainties, CEQA practitioners may want to review the year’s key legislation impacting CEQA and its application, which was contained in the handful of bills summarized below.
- AB 168 (Aguilar-Curry). This urgency legislation became effective with the Governor’s signature on September 25, 2020. It amends Government Code §§ 65400, 65913.4 and 65941.1 to correct an “oversight” in SB 35 (Weiner), namely, that 2017 law’s failure to consider potential destruction of tribal cultural resources as a result of the streamlined, ministerial (and thus CEQA-exempt) approval process it authorized for multifamily housing development projects satisfying specified objective planning standards. (SB 35 is summarized in detail in my 12/7/17 blog post, which can be found here.)
“The life of the law has not been logic: it has been experience.” – Oliver Wendell Holmes, Jr., The Common Law (1881)
“CEQA discourse has become increasingly abstract, almost medieval in its scholasticism.” – former California Governor Edmund G. (“Jerry”) Brown, Jr.
by Arthur F. Coon
On November 24, 2020, the Fifth District Court of Appeal filed its partially published opinion in the latest installment of the long-running CEQA litigation over Fresno County’s approval of the Friant Ranch project. Sierra Club v. County of Fresno (Friant Ranch, L.P., Real Party in Interest) (2020) 57 Cal.App.5th 979. The litigation involves a 942-acre mixed-use development project (2500 residential units, 250,000 square feet of commercial space, 460 acres of open space) for which the Notice of Preparation (NOP) of the EIR was issued in 2007; it has generated an earlier appellate opinion (see my 6/16/14 post here) and a Supreme Court opinion (see my 12/28/18 post here) addressing important standard of review issues centered on the adequacy of the project EIR’s air quality impacts discussion.
Continue Reading Remedial Legal Logic: Fifth District Doubles Down On Split with Other Districts in Holding CEQA Doesn’t Allow Limited Writ Remedy of Partial EIR Decertification – But Does It Really Matter?
On November 9, 2020, the United States Court of Appeals for the Ninth Circuit issued a published opinion affirming a judgment on the pleadings, granted by Northern District Presiding Judge William Alsup, in a removed action filed by a group of taxicab drivers and companies against the City of San Francisco. San Francisco Taxi Coalition, et al. v. City and County of San Francisco, et al. (9th Cir. 2020) ___ F.3d ___. The action challenged the San Francisco Municipal Transit Agency’s (SFMTA) adoption of 2018 taxi regulations which favored recent, post-2010 owners of taxi permits (called “medallions,” and for which the recent owners paid $250,000 each) over longer-term permit owners by giving them priority for lucrative airport pickup rides.
Continue Reading A “Fare” Shake? Ninth Circuit Affirms Judgment On the Pleadings for San Francisco In Removed Action Challenging SFMTA’s 2018 Taxi Regulations, Remands for Consideration of Whether to Grant Plaintiffs Leave to Amend CEQA Claim
On November 10, 2020, the California Supreme Court – after briefly raising Petitioners’ hopes by extending the time to consider granting review – finally slammed the door shut on further litigation over a recent Fourth District Court of Appeal decision, issuing an order denying the three petitions for review filed by the parties, as well as a request for depublication filed by non-party City of Los Angeles. Golden Door Properties v. S.C (County of San Diego) Case No. S264324. The Court of Appeal’s Golden Door decision, which held lead agencies must retain and not destroy writings within the scope of CEQA’s mandatory and broadly inclusive administrative record statute (Pub. Resources Code, § 21167.6), notwithstanding assertedly contrary record-retention policies, will thus remain intact as published precedent.