On October 7, 2024, the First District Court of Appeal (Div. 5) issued a 6-page “Order Denying Respondent’s Petition for Rehearing and Modifying Opinion [No Change in Judgment]” (the “Order”) in Sunflower Alliance v. California Department of Conservation, et al. (Reabold California, LLC) (2024) ___ Cal.App.5th ___, a case upholding a CEQA Guidelines Class 1 categorical exemption for an oil well conversion project (my 9/9/24 post on which can be found here).  The main thrust of the Order, a copy of which can be reviewed here, is to bolster the Opinion’s refutations of certain of Respondent Sunflower Alliance’s arguments, including its argument made on rehearing that the Secretary cannot have intended for categorical exemptions to call for an “early stage” assessment of environmental impacts; the Court called Sunflower’s position “wrong,” citing numerous examples of categorical exemptions calling for such assessments, which it noted function as limits on the application of the exemptions, and are also consistent with the agencies’ duty to consider environmental impacts when evidence in their records suggests an exception to the exemption may apply.

Continue Reading First District Denies Rehearing, Modifies Opinion in CEQA Guidelines Class 1 Categorical Exemption Case With No Change in Judgment

In a terse opinion filed September 13, and modified and ordered partially published on October 3, 2024, the Third District Court of Appeal upheld an award of reasonable record preparation cots to prevailing lead agency County of Yolo (County) in a CEQA action unsuccessfully challenging a sand and gravel mining permit and reclamation plan (project).  Yolo Land and Water Defense, et al v. County of Yolo, et al (Teichert, Inc., Real Party in Interest) (2024) ___ Cal.App.5th ___.

Continue Reading Third District Holds That Lead Agency Prevailing In CEQA Action Can Recover Reasonable Record Preparation Costs Despite Petitioner’s Election to Prepare Record

In an opinion filed August 27 and later ordered published on September 24, 2024, the Fifth District Court of Appeal affirmed a judgment denying a writ petition that challenged the State Air Resources Board’s (CARB) adoption of the Advanced Clean Trucks Regulation (Regulation) on CEQA and Administrative Procedures Act (APA; Gov. Code, § 11340 et seq) grounds.  California Natural Gas Vehicle Coalition v. State Air Resources Board (2024) ___ Cal.App.5th ___.  The Court held that CARB’s in-depth study of three alternatives (including the “no project” alternative) constituted a reasonable range for CEQA purposes; it further held that CARB’s alternative analysis wasn’t deficient for rejecting without in-depth study, as infeasible for policy reasons, an alternative proposed by opponents of the Regulation that would have applied a low-NOx vehicle credit to sales mandates applicable to zero-emission vehicles (ZEV).  Based on the same reasoning, the Court held CARB also need not have considered the now-NOx vehicle credit as a mitigation measure for the acknowledged significant near-term air quality impacts of the Regulation.  (The Court also rejected appellant Coalition’s APA arguments in a portion of its opinion that won’t be further discussed in this post.)  Finally, the Court held on CARB’s affirmative appeal that any error with respect to the admission of a specific “white paper” document into the administrative record was nonprejudicial, and therefore harmless, as it did not impact either the trial court’s or its own analysis.

Continue Reading Fifth District Affirms Judgment Rejecting CEQA/APA Challenges to CARB’s Approval of ZEV Truck Sales Mandate Regulation; Holds Alternatives and Mitigation Analyses Need Not Include Low-NOx Vehicle Credit Contrary to Project’s Underlying Fundamental Purpose

In an opinion filed August 15, and modified and certified for publication on September 13, 2024, the Fourth District Court of Appeal (Div. 2) resolved cross-appeals from a judgment granting a limited writ by reversing with directions to deny the writ.  The Court thus found the City of Upland’s (City) Mitigated Negative Declaration (MND) for approvals of a 201,096-square foot parcel-delivery warehouse project legally adequate under CEQA.  Upland Community First v. City of Upland (2024) ___ Cal.App.5th ___.  In doing so, the Court not only upheld an environmental document (an MND) that is, in general, notoriously difficult to defend under CEQA’s applicable “fair argument” standard of review, but also upheld, as supported by substantial evidence: (1) City’s application of a stringent 3,000 MTCO2 e/year quantitative threshold of significance to the project’s GHG emissions, and (2) City’s determination that the project’s “net-over-baseline” GHC emissions would not exceed that threshold – despite some effort being required to “connect the dots” regarding the record evidence to show the City’s math in reaching that determination.  While ultimately irrelevant to the outcome in their favor, the Court also held that City and the project’s developer (Bridge) forfeited – by failing to timely raise – their alternative argument that the project’s GHG emissions were insignificant based on a different, qualitative “threshold,” i.e., City’s finding that the project was consistent with its Climate Action Plan (UCAP).  Finally, the Court rejected all of project opponent UCF’s appellate challenges to City’s MND based on allegedly faulty traffic and VMT analyses.

Continue Reading Fourth District Reverses Judgment Granting Writ and Holds City of Upland’s MND For Warehouse Project Satisfies CEQA; Rejects Arguments That City’s Choice and Application of Quantitative GHG Significance Threshold Lacked Substantial Evidence Support

In a published decision filed September 6, 2024, the First District Court of Appeal (Div. 5) reversed the trial court’s judgment granting a writ of mandate and upheld the use of CEQA’s Class 1 categorical exemption (CEQA Guidelines, § 15301) by the California Department of Conservation’s Division of Geologic Energy Management (“CalGEM”) in approving a project to convert an oil well that previously pumped oil and water from a deep aquifer into an injection well that would pump excess water produced from oil extraction back into that aquifer.  Sunflower Alliance v. California Department of Conservation, et al. (Reabold California, LLC, Real Party in Interest) (2024) 104 Cal.App.5th 1135.  Because the project involved only minor physical alterations to the well, and the factual record showed the environmental risks from the well’s changed use – i.e., injecting water into the aquifer instead of pumping it out – were negligible, the project fell within the exemption. 

Continue Reading First District Holds CEQA Class 1 Categorical Exemption Applies To Approval of Project Converting Existing Oil Well Into Produced-Water Injection Well Because Changed Use Presents “Negligible” Risk of Environmental Harm

In an opinion filed on July 24, and later ordered published on August 19, 2024, the Second District Court of Appeal (Div. 4) affirmed the trial court’s judgment denying a writ petition challenging actions taken by the Los Angeles City Planning Commission (“CPC”) to facilitate and implement three components of the Westside Mobility Plan (the “Mobility Plan”). Westside Los Angeles Neighbors Network v. City of Los Angeles (2024) 104 Cal.App.5th 223.

Continue Reading Second District Rejects CEQA Challenges To LA City Planning Commission’s EIR Certification and Categorical Exemption Determination For Multi-Component Project Implementing Westside Mobility Plan, Declines To Reach Significant Issues Forfeited By Appellant

The Sixth District Court of Appeal filed on July 24, and later certified for publication on August 6, 2024, its opinion in Center for Biological Diversity et al. v. County of San Benito, et al. (2024) 104 Cal.App.5th 22.  The case involves the application of CEQA’s short 30-day statute of limitations for challenging an EIR’s sufficiency in the context of multiple CEQA lawsuits brought against a multi-use “roadside attraction” project in San Benito County. 

Continue Reading Timing Remains Everything: Sixth District Holds CEQA Notice of Determination Filed Before County’s Final Project Approval Decision Does Not Trigger Short Limitations Period

In an opinion filed June 27, and later ordered published (with slight modifications) on July 18, 2024, the First District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging the City of Lafayette’s use of the CEQA Guidelines section 15332 categorical exemption and related approval of a 12-unit residential condominium project on a 0.3-acre parcel.  Nahid Nassiri v. City of Lafayette, et al (3721 Land LLC, Real Party in Interest) (2024) 103 Cal.App.5th 910.  In disposing of appellant’s arguments that the infill exemption’s elements were not satisfied, the Court of Appeal held that substantial evidence supported the City’s findings that the project site had no value as habitat for endangered, rare or threatened species, and that the project would not result in significant air quality impacts.  The Court declined to reach the issue whether the unusual circumstances exception to the categorical exemption applied because appellant waived it by failing to properly raise it in the trial court.

Continue Reading First District Affirms Judgment Rejecting Challenge to CEQA Guidelines Class 32 Infill Development Exemption for 12-Unit Residential Condominium Project

It’s good to be king and have your own way
Get a feeling of peace at the end of the day

“It’s Good to be King” – Tom Petty

California Senate Bill No. 174 (SB 174), a budget trailer bill that was passed by the Assembly with amendments on June 26, received Senate concurrence on the amendments the same day, and was enrolled and presented to the Governor the next day (June 27); SB 174 was approved by the Governor on July 2, 2024.  The new law does two noteworthy things relating to CEQA.

Continue Reading Budget Trailer Bill SB 174 Exempts State Capitol Renovation Project From CEQA, Extends Existing Statutory Exemption for Wildlife/Habitat Protection Projects

“It ain’t over ‘til it’s over.” Yogi Berra and Lenny Kravitz

In a unanimous opinion filed on June 6, 2024, the California Supreme Court reversed the judgment of the First District Court of Appeal in the controversial “People’s Park” case, thus upholding the Regents’ 2021 Long-Range Development Plan (LRDP) EIR and clearing the legal path for UC Berkeley’s residential development at the People’s Park site.  Make UC A Good Neighbor v. Regents of University of California (2024) 16 Cal.5th 43. (My prior posts on the Court of Appeal’s decision and the Supreme Court’s grant of review in this case can be found here (3/3/23 post) and here (5/21/23 post).)

Continue Reading Supreme Court Holds Legislature’s Case-Driven CEQA Amendments Require Judgment Upholding UC Berkeley’s 2021 Long-Range Development Plan EIR and People’s Park Housing Project Against Claims of Failures to Analyze Student “Social Noise” and Alternative Locations