As we move into a brand new year of tracking CEQA developments, it seems like an appropriate time to survey and briefly recap some of the many significant published case law developments that occurred over the past year. (For those with an interest in delving deeper into any of the cases mentioned below, hyperlinks to my relevant prior posts are provided at the end of the each brief case summary.)
Supreme Court Activity
The Supreme Court had another busy CEQA docket in 2017. It began the year by granting review in Union of Medical Marijuana Patients, Inc. v. City of San Diego (2016) 4 Cal.App.5th 103 (Case No. 5238563), a pending case in which it is expected to decide the important issue whether a zoning ordinance amendment categorically constitutes a CEQA “project,” and more specifically whether a City’s land use law regulating the location and operation of medical marijuana cooperatives may, categorically, cause a reasonably foreseeable environmental change. (See 1/12/17 post.)
In decided cases, the Supreme Court held in Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918 that the EIR for a controversial, mixed-use Coastal Zone development project violated CEQA by improperly failing to identify potential “environmentally sensitive habitat areas” (“ESHA”), as required for adequate analysis of project alternatives and mitigation measures that would naturally shape the project footprint. (See 3/31/17 post.)
In Cleveland National Forest Foundation v. San Diego Association of Governments (2017) 3 Cal.5th 497, the Court held SANDAG’s 2011 EIR for its Regional Transportation Plan/Sustainable Communities Strategy did not violate CEQA by failing to analyze consistency with a 2005 Executive Order’s GHG emissions reductions goals, but unfortunately provided little or no useful GHG analysis guidance beyond its narrow holding in that regard. (See 7/17/17 post.)
Finally, in Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, the high court held that CEQA applied to a state public entity’s railroad project on a State-owned rail line as an act of “self-governance,” and was not a preempted “regulation” (i.e., not an “environmental preclearance requirement”) under the Federal Interstate Commerce Commission Termination Act of 1995. (See 7/31/17 post.)
The Fifth District held, in an issue of first impression, that a refinery modification project’s compliance with California’s GHG cap-and-trade program supported Kern County’s conclusion pursuant to CEQA Guidelines § 15064.4(b)(3) that its GHG emissions would have a less than significant environmental impact. The case, Association of Irritated Residents v. Kern County Board of Supervisors (2017) 17 Cal.App.5th 708, also addressed important CEQA baseline and railroad operation preemption issues. (See 12/1/17 post.)
The First District, following remand from the California Supreme Court, explicated CEQA’s subsequent review rules in detail in Friends of the College of San Mateo Gardens v. San Mateo Community College District (2017) 11 Cal.App.5th 596; it held that a college district’s changes to a campus-wide renovation project (to demolish a unique building complex formerly slated for renovation) were not adequately analyzed by an Addendum to a prior MND because substantial evidence supported a “fair argument” that the modified project might have a significant effect on the improvement. (See 5/11/17 post.)
In Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal.App.5th 187, the First District helpfully defined “urban decay” for CEQA purposes, and treated it as the result of a “relatively extreme economic condition”; it affirmed a judgment denying a writ petition challenging the Judicial Council’s EIR for a project relocating trial court operations from the historic Placerville Courthouse in El Dorado County. (See 10/23/17 post.)
The First District helpfully clarified the nature of judicial review of challenges to CEQA categorical exemptions made under the “unusual circumstances” exception in the context where an agency does not make express findings and must therefore rely on an implied finding that the exception does not apply; in Respect Life South San Francisco v. City of South San Francisco (2017) 15 Cal.App.5th 449, the Court essentially held that courts in this context must analyze the implied finding as if made on the narrowest possible grounds and not assume the agency found no unusual circumstances simply because some record evidence would support that factual finding. This important case underscores the importance of public agencies making express findings in this regard to enhance the usefulness and defensibility of categorical exemptions and reduce litigation risk. (See 9/21/17 post.)
In another First District categorical exemption case, the Court affirmed an order denying a writ petition challenging a small residential project on San Francisco’s Telegraph Hill. In Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261, it held the City did not improperly “mitigate into” a categorical exemption by imposing standard construction conditions of approval to address common pedestrian and traffic disruptions in this urban context, and it also applied the deferential “substantial evidence” standard of review to hold that despite the zoning-compliant project’s “unique” setting the City’s express finding that there were no “unusual circumstances” was supported by substantial evidence in the record. (See 10/19/17 post.)
In Washoe Meadows Community v. Department of Parks and Recreation (2017) 17 Cal.App.5th 277, the First District held CEQA’s fundamental requirement that an EIR contain an “accurate, stable and finite” project description was violated by a DEIR that analyzed five very different alternatives without identifying any proposed project or preferred alternative. (See 11/17/17 post.)
The First District helpfully elaborated on CEQA’s “functional test” for determining whether an agency’s project approval action is ministerial, rather than discretionary, in nature and therefore not subject to CEQA in Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11; it held that meaningful discretion that could actually mitigate a particular project’s otherwise significant impacts must exist to trigger CEQA compliance obligations, and upheld as CEQA-exempt a County’s ministerial approval of a vineyard development permit under the provisions of its local ordinance. (See 4/24/17 post.)
In Center for Biological Diversity v. California Department of Fish and Wildlife (2017) 17 Cal.App.5th 1245, the Second District helpfully clarified that the flexible remedies authorized under Public Resources Code § 21168.9 allow a court issuing a writ of mandate in a CEQA proceeding to partially decertify an EIR while leaving unaffected project approvals in place. (See 12/11/17 post; see also POET, LLC v. State Air Resources Board (5th Dist. 2017) 10 Cal.App.5th 764 [reversing trial court’s order discharging writ but refusing to suspend 2015 LCFS regulations enacted in violation of CEQA pending required compliance]; see 4/17/17 and 6/9/17 posts.)
The Sixth District, in The Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883, upheld the propriety of an interlocutory remand in CEQA/land use writ litigation to allow a County’s Board to clarify its findings relating to the non-CEQA, general plan consistency issue, while applying a deferential standard of review and holding that “general plan consistency is not an issue reviewed under CEQA.” (See 8/31/17 post.)
Certified Regulatory Programs
The First District issued a primer on pesticide regulation and helpful reminder that CEQA’s substantive requirements fully apply to state agencies operating under a certified regulatory program in Pesticide Action Network North America v. California Department of Pesticide Regulation (2017) 15 Cal.App.4th 478; see 9/25/17 post.
It also affirmed a judgment denying a CEQA challenge to the State Water Resources Control Board’s Revised Substitute Environmental Document for approval of a policy designed to maintain instream flows in certain coastal streams, while holding that the likelihood and severity of indirect project effects may properly be considered by an agency in determining the feasibility of related proposed mitigation measures. Living Rivers Council v. State Water Resources Control Board (2017) 15 Cal.App.5th 991; see 10/11/17 post.
CEQA Litigation/Procedural Issues
Various of California’s District Courts of Appeal rendered notable decisions on a number of issues relating to the procedures and rules governing the conduct of CEQA litigation, including the following holdings:
- Res judicata will not apply to bar a subsequent action on the same claim between the same parties unless the first judgment was on the merits. Association of Irritated Residents v. Department of Conservation (5th Dist. 2017) 11 Cal.App.5th 1202; see 6/5/17 post.
- Mandatory relief from dismissals and default judgments under CCP § 473(b) based on attorney error does not extend to an adverse judgment entered against a plaintiff that failed to carry its burden of proof at a trial on the merits because its counsel failed to lodge the certified administrative record. The Urban Wildlands Group, Inc. v. City of Los Angeles (2d Dist. 2017) 10 Cal.App.5th 933; see 4/18/17 post.
- Civil discovery may properly be conducted on the issue of a plaintiff’s standing in a CEQA writ proceeding, and a terminating sanction may properly be issued where the plaintiff attempts to thwart such discovery by refusing to comply with trial court orders. Creed-21 v. City of Wildomar (4th Dist. 2017) ____ Cal.App.5th ____; see 12/20/17 post.
- The exhaustion of administrative remedies doctrine addresses a jurisdictional prerequisite to a CEQA lawsuit, and applies to a lawsuit challenging an agency’s action even absent a public hearing under CEQA, where the action took place under an agendized item at a regularly scheduled public meeting for which the legally required notice – 72 hours posting – was given under the Brown Act. Bridges v. Mt. San Jacinto Community College District (4th Dist. 2017) 14 Cal.App.5th 104; see 8/21/17 post.
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