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of the published – i.e., most important – cases is a big enough task without worrying about the even greater number of non-precedential unpublished ones.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one), demonstrating there is generally no shortage of subject matter, even with my self-imposed limitation excluding unpublished decisions.
In an increasingly data-driven legal world, however, perhaps case publication statistics might provide some valuable insights regarding what kinds of CEQA cases get published and why. In this vein, my review of Latham Watkins’ recently published “CEQA Case Report: 2020 Year in Review” (March 1, 2021) (“2020 Report”) got me thinking further about these issues. The 2020 Report documented there were 36 cases issued last year “that substantially considered CEQA” – one (1) from the California Supreme Court, one (1) from the Ninth Circuit, and 34 from the California Courts of Appeal. It confirmed that 17 of these cases were published (while 19 were unpublished), and that public agencies prevailed in 67% of the total cases. (Of course, all California Supreme Court decisions are published, so the most important barometer for purposes of the present inquiry is the breakdown of the 34 California Court of Appeal cases, where the issuing courts possess discretion whether or not to publish their opinions; 15 of these cases were published and 19 were not published).
The 2020 Report also broke down the subject matter of the Court of Appeal CEQA cases; the biggest categories were cases involving EIRs (12 total cases, 5 published) and attorneys’ fees, justiciability, and procedural issues (also 12 cases, 5 published), followed by supplemental review (6 cases, 3 published), MNDs (2 cases, 1 published), and exemptions and exceptions (also 2 cases, 1 published, not counting the Supreme Court and Ninth Circuit decisions).
It thus appears that roughly half – actually slightly less than half – of all CEQA cases decided last year in California’s Courts of Appeal were published, and that this also held true across each of the substantive subject matter categories. This might be interpreted simply as the result of an even-handed judicial application of the standards for publication set forth in the California Rules of Court. The Rules provide that a decision will be published if a majority of the justices of the rendering court timely vote to certify the opinion for publication, under specified criteria. The particular legal subject matter area within CEQA did not appear to drive the Courts’ publication decisions, at least for last year.
What are the relevant publication criteria? Rule 8.1105 of the California Rules of Court provides the Court of Appeal “should” – not “shall” – certify its opinion if it meets any of nine (9) criteria:
- Establishes a new rule of law;
- Applies an existing rule to significantly different facts than those stated in existing published opinions;
- Modifies, explains, or criticizes with reasons given an existing rule of law;
- Advances a new interpretation, clarification, criticism, or construction of a constitutional or statutory or ordinance provision, or court rule;
- Addresses or creates an apparent conflict in the law (i.e., departs from other or settled precedents);
- Involves an issue of continuing public interest;
- Makes a significant contribution to the legal literature as specified;
- Invokes a previously overlooked legal rule, or reaffirms a legal principle not applied in a recent decision; or
- Is accompanied by a separate concurring or dissenting opinion on a legal issue such that the opinions would make a significant contribution to the development of the law.
Thus, California courts have broad discretion to publish, or not publish, their opinions utilizing the foregoing criteria. Perhaps, then, the roughly 50% publication figure simply indicates an even-handed application of the publication criteria in CEQA cases by the Courts on a case-by-case basis. But could there be other factors? An interesting possibility that emerges from my review of the 2020 Report’s data is an apparent appellate disposition towards publishing cases where the public agency loses and not publishing cases where the public agency wins. Viewed through this lens, and independently of the particular legal subject matter involved, it appears that of the 34 Court of Appeal CEQA cases, the public agency prevailed in 23 cases (nearly 68%); yet only 7 of these “agency wins” (about 30%) were published and 16 (about 70%) were not published. Flipping the coin, in the 11 Court of Appeal cases in which the public agency did not prevail, 8 cases (almost 73%) were published, and only 3 cases (about 27%) were not published. (If one counts the single California Supreme Court case – in which the public agency also lost – the percentage of published “agency losses” would be 75%.)
There thus seems to be somewhat of a dichotomy, at least in last year’s CEQA case crop: agency losses were published between 73-75% of the time, while agency wins were published only about 30% of the time. One might ponder whether this reflects a pro-petitioner or anti-agency bias, a salutary appellate desire to instruct public agencies on what not to do, or just the “luck of the draw” in applying the publication criteria to often-complex CEQA cases and fact-patterns. My own longer-term experience in reviewing CEQA cases is consistent with the 2020 Report’s statistics showing that California Courts of Appeal tend to publish more when public agencies are determined to have gotten it wrong. Perhaps this reflects a judicial effort to provide guidance and try to make sure that other agencies don’t repeat the same mistakes in an esoteric area of law fraught with complexities and legal land mines.
Some other interesting statistics and patterns emerge from the 2020 Report in terms of the percentage of CEQA cases in which public agencies prevailed in the various forums and appellate districts. Public agencies were, technically, zero for one in the Supreme Court, although the POWER case – my post on which can be found here – was far from a complete agency loss, and actually reflected the high court taking a reasonable middle ground between the sharp opposing positions advocated by the petitioners and the agency. Public agencies were one for one in the Ninth Circuit, a win for San Francisco that I posted on here. In California’s district courts of appeal, the 2020 Report’s data reflects that public agencies prevailed in: 67% of the CEQA cases in the First District (4 of 6 cases, roughly the overall appellate average); 78% in the Second District (7 of 9 cases); and 100% in the Sixth District (2 of 2 cases). Things were not as rosy for them elsewhere, as public agencies prevailed in only 50% of CEQA cases in the 5th District (2 of 4 cases), and only 40% in the 4th District (2 of 5 cases). (Of course, it must be kept in mind, to provide perspective and context, that CEQA cases often involve myriad issues raised by petitioners challenging project approvals, and if a petitioner prevails on but a single issue, as a matter of law that constitutes a prejudicial error that is enough for it to “win” an appeal.)
So what does it all mean? Who knows? – but it is interesting. I’ll venture the following: CEQA is complicated and generates difficult issues and complex litigation; public agencies are increasingly sophisticated, generally do a good job of navigating CEQA, and (per last year’s statistics) are winning CEQA litigation challenges a substantial percentage of the time; agencies do fare better in certain appellate districts than in others (a conclusion from the 2020 Report also consistent with my own longer-term observations of the case law); and the percentage of agency wins reflected in published decisions alone is unreflective of the true agency success rate because – for whatever reasons – the appellate courts have skewed publication of their opinions in favor of publishing more agency losses and petitioner wins, and fewer agency wins and petitioner losses.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 3d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, construction, management, title insurance, environmental law, and redevelopment and land use. For more information, visit www.msrlegal.com.