On September 13, 2011, I began the endeavor of writing Miller Starr Regalia’s CEQA Developments blog. Ten years and 358 blog posts later, it continues to be a challenging and rewarding task. Since my inaugural post (which can be viewed here) was a “top ten” list of CEQA litigation mistakes to avoid, I thought an appropriate tenth anniversary post might be a list of the ten most significant CEQA case law developments over the past decade. My “top ten” list is definitely subjective, is limited to Supreme Court decisions, and (by its very nature) fails to include many important judicial developments. Nonetheless, here it is (with the decisions listed in no particular order):
- CEQA requires analysis of a project’s impacts on the existing environment, not vice-versa. The Supreme Court, in California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, held CEQA does not generally operate “in reverse.” This holding saved practitioners and consultants from the CEQA analysis and litigation hells that would certainly have resulted if it had held to the contrary, i.e., that CEQA required analysis of the existing environment’s impacts on proposed projects and their users and occupants. My December 18, 2015 post on the case can be found here.
- Baseline basics are clarified. The Supreme Court, in Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, clarified the rules governing CEQA’s “environmental baseline,” the analytical construct intended to represent the existing physical conditions in the project’s vicinity against which a project’s environmental impacts are measured. It held “existing conditions” at the time of NOP issuance or commencement of environmental review is the “norm”; that lead agencies have substantial discretion in setting the normal “existing conditions” baseline based on substantial evidence; that the use of multiple baselines is permissible (so long as the existing conditions baseline is included); but that sole use of a predicted future baseline (omitting any existing conditions baseline) requires special justification, i.e., a difficult-to-meet showing that use of an existing conditions baseline would be misleading or without informational value. My August 9, 2013 post on the case can be found here.
- Despite awkward statutory language, the exhaustion requirement applies to exemption determinations. The Supreme Court, in Tomlinson v. County of Alameda (2012) 54 Cal.4th 281, held that – despite the absence of a “notice of determination” as referenced in the statute – CEQA’s exhaustion requirement (in Pub. Resources Code, § 21177) applies to challenges to a lead agency’s categorical exemption decisions where the challenger is provided an opportunity to comment at a public hearing prior to project approval. My June 18, 2012 post on the case can be found here.
- Categorical exemptions provide some benefit and require more than merely a “fair argument” to overturn. The Supreme Court, in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, clarified the “bifurcated” standard of judicial review and burdens of proof involved in establishing the two-pronged “unusual circumstances” exception to categorical exemptions. My March 3, 2015 post on the case can be found here.
- CEQA does not apply to, and does not practically foreclose the Elections Code’s option of direct agency adoption “as is” of, citizen-generated initiative measures. The Supreme Court, in Tuolumne Jobs & Small Business Alliance v. Superior Court (2014) 59 Cal.4th 1029, held that citizen-sponsored ballot initiatives – whether enacted by direct agency adoption or popular vote – are exempt from CEQA (reversing what was quite possibly one of the worst CEQA decisions of all time by the Fifth District, which had held to the contrary). Whether the proposed activity is exempt, or if not whether it may have a significant environmental effect, are questions to be answered in subsequent tiers of the CEQA review process. My August 8, 2014 post on the case can be found here.
- CEQA’s “subsequent review” rules are elucidated. The Supreme Court, in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, provided much-need clarity to the application and operation of CEQA’s “subsequent review” rules. It held that a lead agency’s determination to proceed under those rules, with respect to modified projects or changed circumstances, is subject to a deferential standard of review and will be upheld whenever substantial evidence supports the determination that the prior CEQA document retains informational relevance to the subsequent CEQA analysis; in so holding, the high court rejected the argument that application of the subsequent review rules depended on a trial court’s arbitrary determination – unguided by objective standards – of a threshold question of law as to whether a project was “modified” or entirely “new.” The Court also clarified the operation of CEQA’s “subsequent review” rules as set forth in the statute and CEQA Guidelines, including their presumption against further CEQA review after an EIR is certified or negative declaration adopted for a project, and prohibition of further EIRs or negative declarations unless the required exacting standards are met, as well as the application of the substantial evidence standard of review to an agency’s decision not to require a further EIR. My September 22, 2016 post on the case can be found here.
- There is a low threshold for an activity to be a “project” subject to CEQA. The Supreme Court, in Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, reaffirmed its Muzzy Ranch decision’s “abstract” and “theoretical” threshold legal test for whether a proposed activity constitutes a “project” subject to CEQA – an inquiry that occurs at the “first tier” of the CEQA review process and a test that is easily satisfied where the activity simply has the “potential” to result in a direct, or a reasonably foreseeable indirect, change in the physical environment. My August 21, 2019 post on the case can be found here.
- Defining the meaningful “discretion” that is required to trigger CEQA. The Supreme Court, in Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479, delved into CEQA’s key “discretionary” versus “ministerial” project distinction – a distinction marking the very limits of CEQA’s scope, with discretionary projects falling within and ministerial projects outside of CEQA’s purview. The high court eschewed an “all or nothing” approach and held that this critical issue turns on the nature of the discretion conferred by the specific regulatory controls applicable to a particular permit application, rather than an abstract characterization of the discretionary or ministerial nature of the lead agency’s governing ordinance or regulations as a whole. My August 28, 2020 post on the case can be found here.
- CEQA analysis of GHG/climate change impacts is different – and difficult. The Supreme Court, in Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204, taught that a project’s greenhouse gas (GHG) emissions (and related climate change impacts) are cumulative impacts and constitute a rather “different animal” for CEQA analysis purposes. Their impacts are global (not localized) and their significance thus does not depend on where they are emitted, and can properly be assessed in terms of an efficiency metric – such as CARB Scoping Plan-consistent percentage reductions from a projected “business as usual” (“BAU”) emissions baseline – if sufficient data validates the comparison. The Court’s decision made clear the usual CEQA prohibition against “hypothetical” conditions baselines did not bar this analysis, and also underscored that compliance with CEQA’s GHG/climate change analysis requirements is complex and difficult, discussing for several pages a number of “potential pathways” to such compliance. My December 2, 2015 post on the case can be found here.
- Informational adequacy challenges to EIR impact discussions may be subject to a more nuanced standard of judicial review. The Supreme Court, in Sierra Club v. County of Fresno (2018) 6 Cal.5th 502, addressed the standard of judicial review applicable to challenges to the informational adequacy of an EIR’s discussion of environmental impacts and mitigation measures. Recognizing this issue did not fit neatly into CEQA’s standard “factual/procedural” issues dichotomy (which has worked well for most CEQA issues), the Court held the discussion must include “sufficient detail to enable those who did not participate in [the EIR’s] preparation to understand and consider meaningfully the issues the proposed project raises”; in the case before it, this required “a reasonable effort to substantively connect a project’s air quality impacts to likely health consequences.” My December 28, 2018 post on the case can be found here.
* * *
Even though the foregoing sampling is really just the “tip of the iceberg” when it comes to CEQA developments, it can readily be seen that our Supreme Court has been quite active in shaping CEQA law over the last decade. The journey continues.
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.