In a published opinion filed November 15, 2017, the First District Court of Appeal (Division 5) affirmed the trial court’s order granting a petition for writ of mandate setting aside the California Department of Parks and Recreation’s (Department) approvals and EIR for the “Upper Truckee River Restoration and Golf Course Reconfiguration Project” (the “Project”).  Washoe Meadows Community v. Department of Parks and Recreation (1st Dist. 2017) _____ Cal.App.5th _____.  The Court agreed with the trial court’s determination that “the DEIR’s failure to provide the public with an accurate, stable and finite” project description “prejudicially impaired the public’s ability to participate in the CEQA process by setting forth a range of five very different alternatives and by declining to identify a preferred alternative.”

As relevant background, the project involved 777 acres of state-owned land encompassing a 2.2-mile stretch of the Upper Truckee River in the Lake Tahoe Basin.  The land was divided into two units: 608 acres of state park land (Washoe Meadows State Park), and the remainder designated as Lake Valley State Recreation Area to allow continuing operation of an existing golf course (a use not allowed in state parks).  Since at least the 1990s, the golf course layout had altered the river’s course and flow, raising environmental concerns of river bed erosion that threatened habitat and water quality in and around Lake Tahoe through deposition of substantial sediment.

Continue Reading Power to the Public: DEIR’s Failure to Identify Proposed Project Among Handful of Vastly Different Analyzed Alternatives Violates CEQA’s Requirement to Contain “Accurate, Stable and Finite” Project Description, Vitiates Intelligent Public Participation, Holds First District

In a published opinion filed September 19, 2017, the First District Court of Appeal reversed the trial court’s denial of a writ petition challenging defendant California Department of Pesticide Regulation’s (“Department”) approval of label amendments for two pesticides containing an active ingredient toxic to honeybees.  The Court held the Department’s environmental review was deficient in failing to adequately address feasible alternatives, lacking adequate baseline information, and lacking an adequate cumulative impacts analysis, and that its public reports were so inadequate and conclusory as to render public comment effectively meaningless and require recirculation.  Pesticide Action Network North America v. California Department of Pesticide Regulation (Valent U.S.A. Corporation, et al., Real Parties In Interest) (1st Dist., Div. 3, 2017) 15 Cal.App.5th 478.

Continue Reading First District Holds CEQA’s Substantive Requirements Apply to Environmental Documentation of State Agency Acting Under Certified State Regulatory Program, Directs Issuance of Writ Setting Aside Inadequately Reviewed Pesticide Label Approvals

On July 13, 2017, the California Supreme Court rendered a 6-1 decision holding that the San Diego Association of Governments’ (SANDAG) 2011 EIR for its Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) issued pursuant to SB 375 did not violate CEQA “by declining to explicitly engage in an analysis of the consistency of projected 2050 greenhouse gas emissions with the goals in [a 2005] executive order [the “2005 EO”].” (Cleveland National Forest Foundation, et al v. San Diego Association of Governments (2017) 3 Cal. 5th 497, Supreme Court Case No. 5223603.) This conclusion is not surprising, and it is undoubtedly correct. But it is disappointing that the majority’s opinion lacks significant practical or legal guidance for conducting CEQA-compliant GHG analysis for long term regional plans.

Maybe I expect too much. Maybe the nature of the opinion is just a result of the narrowly-framed issue on which the Court chose to grant review. Maybe the interrelationship between CEQA and SB 375 is so complex that hope for greater clarity and simplicity in this area is unrealistic. Perhaps, by its very nature, CEQA is inherently ill-suited to “analyzing” the global-scale environmental impacts of GHG emissions on a project-by-project basis. Or perhaps the case’s narrow holding flows from the strong flavor of mootness that permeates it. In this last vein, it seems somewhat odd for our Supreme Court to decide the legal validity of one discrete aspect of SANDAG’s 2011 EIR despite the facts that (1) the 2011 RTP/SCS which that EIR analyzed has now long been superseded by an updated 2015 RTP/SCS (“San Diego Forward: The Regional Plan”); (2) SANDAG did conduct a 2005 EO consistency analysis in connection with the updated plan; and (3) no one has challenged the updated plan or its EIR.

Continue Reading Supreme Disappointment: High Court’s Narrow Opinion In SANDAG RTP/SCS EIR Case Offers Little Guidance On CEQA GHG Analysis

In a unanimous 29-page opinion authored by Associate Justice Carol Corrigan, and filed on March 30, 2017, the California Supreme Court held the City of Newport Beach’s EIR for a large mixed-use development project proposed on a 400-acre coastal zone site failed to comply with CEQA.  Banning Ranch Conservancy v. City of Newport Beach (Newport Banning Ranch LLC, et al., Real Parties in Interest) (2017) 2 Cal.5th 918.  The EIR improperly failed to identify areas of the site that might qualify as “environmentally sensitive habitat areas” (ESHA) – unique areas receiving special legal protections under the California Coastal Act – and take such areas into consideration in its analysis of project alternatives and mitigation measures.  In light of its reversal of the Court of Appeal’s judgment upholding the EIR and project approvals on CEQA grounds, the high court stated it did not need to reach plaintiff and appellant’s independent claim that the City also violated a general plan “strategy” requiring it to “[w]ork with appropriate state and federal agencies to identify wetlands and habitats to be preserved and/or restored and those on which development will be permitted.”

Continue Reading California Supreme Court Holds Banning Ranch EIR Violates CEQA by Failing to Identify and Analyze Coastal Zone Project’s Impacts on Potential Environmentally Sensitive Habitat Areas (ESHA); Declines to Reach General Plan Issues

In a 46-page opinion filed February 14 and ordered published on March 15, 2017, the Fourth District Court of Appeal rejected numerous CEQA challenges to Riverside County’s approval of an EIR for Specific Plan 380, a 200-acre master-planned, mixed-use community in the County’s French Valley region.  Residents Against Specific Plan 380 v. County of Riverside (Hanna Marital Trust, Real Party in Interest) (4th Dist., Div. 2, 2017) 9 Cal.App.5th 941.  In affirming the trial court’s judgment denying the plaintiff/appellant group’s mandate petition, the Court of Appeal found no merit in any of the group’s arguments that County failed to comply with a number of procedural, informational and substantive CEQA requirements.

Continue Reading Fourth District Affirms Judgment Rejecting Numerous CEQA Challenges to EIR and Approval Process for Large Master-Planned Riverside County Development Project

In a 58-page published opinion filed June 30, 2016, the First District Court of Appeal affirmed the Alameda County Superior Court’s judgment upholding the Metropolitan Transportation Commission’s (MTC) and Association of Bay Area Government’s (ABAG) EIR for and approval of “Plan Bay Area,” the agencies’ first Sustainable Communities Strategy (SCS) prepared pursuant to California’s landmark “Sustainable Communities and Climate Protection Act of 2008” (SB 375).  Bay Area Citizens v. Association of Bay Area Governments, et al (2016) 248 Cal.App.4th 966.

Continue Reading First District Rejects CEQA Challenge To “Plan Bay Area” Sustainable Communities Strategy EIR As Premised On Fundamental Misinterpretation of SB 375

In a decision filed May 25, and belatedly ordered published June 15, 2016, the Fourth District Court of Appeal affirmed and reversed in part a judgment of the San Bernardino County Superior Court.  It affirmed the judgment to the extent it held the Wal-Mart Tamarisk Marketplace Project (Project) EIR inadequately analyzed the Project’s GHG emissions and that the Project was inconsistent with the City of Victorville’s (City) General Plan; it reversed to the extent the judgment failed to also find that City violated CEQA by not recirculating the EIR and violated the Subdivision Map Act (Map Act) by failing to make all findings required by Government Code § 66474.  (Spring Valley Lake Association v. City of Victorville (Wal-Mart Stores, Inc., Real Party in Interest) (4th Dist., Div. 1) 248 Cal.App.4th 91.)

 

Continue Reading Fourth District Holds Wal-Mart Victorville Project EIR Violates CEQA; Project Approval Findings Violate Map Act; And Project Is Inconsistent With General Plan

In a lengthy opinion filed December 2, 2015, and belatedly ordered published on January 4, 2016, the Third District Court of Appeal invalidated the California Department of Food and Agriculture’s (CDFA) programmatic EIR for a seven-year program to eradicate an invasive pest – an Australian native insect known as the light brown apple moth (LBAM) – that threatens California’s native plants and agricultural crops. North Coast Rivers Alliance, et al. v. A.G. Kawamura/Our Children’s Earth Foundation, et al. v. California Department of Food and Agriculture (2015) 243 Cal.App.4th 647. It reversed the trial court’s judgments denying appellants’ mandate petitions and remanded with directions to grant them.

Continue Reading CDFA Program EIR Violates CEQA By Failing To Analyze Invasive Moth Control Program As Alternative To Eradication, Holds Third District

The First District Court of Appeal held the California State Lands Commission’s (“CSLC”) EIR for a project involving the lease of sovereign lands beneath San Francisco Bay for private dredge mining of sand complied with CEQA; however, it partially reversed the trial court’s judgment denying a writ because the record failed to demonstrate CSLC’s compliance with the public trust doctrine. San Francisco Baykeeper, Inc. v. California State Lands Commission (Hanson Marine Operations, Inc., et al., Real Parties In Interest) (1st Dist., Div. 4, 2015) 242 Cal.App.4th 202, filed 11/18/15.

Continue Reading State Lands Commission’s CEQA Review of SF Bay/Delta Sand Mining Project Approval Is Adequate, But Fails to Fulfill Obligation to Consider Public Trust Doctrine

In a 65-page opinion certified for publication and filed October 22, 2015, the Second Appellate District Court of Appeal affirmed the Los Angeles County Superior Court’s judgment denying writ petitions by the City of Beverly Hills (“City”) and the Beverly Hills Unified School District (“District”). Petitioners and Appellants’ actions challenged respondent Los Angeles County Metropolitan Transportation Authority’s (“LA Metro”) EIS/EIR and related approval of the Westside Subway Extension Project (the “Project”). The Project involves the extension of Metro’s Purple Line heavy rail transit (HRT) subway system to the Westside of Los Angeles through the addition of 7 stations and 9 miles of subway line, and includes a new Century City station (the “Constellation station”) to be reached through a tunnel to be constructed underneath Beverly Hills High School. The City of Beverly Hills v. Los Angeles County Metropolitan Transportation Authority (Case No. B256753) (2d Dist., Div. 4, 2015) 241 Cal.App.4th 627.

Continue Reading Second District Rejects CEQA And Fair Transit Hearing Challenges To LA Metro’s Westside Subway Extension Project In Lengthy Published Opinion