Approval/Pre-Commitment

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In two opinions filed May 10, 2016 (one partially and the other fully published), the Fourth District Court of Appeal rejected a number of CEQA and other challenges to a project proposing to pump 50,000 acre-feet of groundwater per year for a 50-year period from a Mojave Desert aquifer in the County of San Bernardino (“Project”).  The Project – proposed by a “public-private partnership” between lead agency Santa Margarita Water District (“SMWG”) and the overlying landowner, Cadiz, Inc. (“Cadiz”) – seeks to beneficially use and prevent the loss of groundwater, some portion of which would otherwise drain to two dry lakes where it would evaporate or become unpotable brine.  The fresh water pumped from the aquifer would be conveyed through 43 miles of underground pipeline to the Colorado River Aqueduct, which would then transport it to supply a number of Southern California Water agencies and users.
Continue Reading Fourth District Rejects CEQA Challenges To Large Mojave Desert Groundwater Pumping Project In Separate Published Opinions

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

On September 18 and October 5, 2015, I posted Parts I and II, respectively, of my comments on OPR’s August 11, 2015 Preliminary Discussion Draft of its “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). While the deadline for public comments on the 145-page Discussion Draft was October 12, 2015, there undoubtedly will be future opportunities for public input on the proposed Guidelines amendments during the formal rulemaking process that will ultimately be conducted by the Natural Resources Agency, if not before.  This concluding post on the Discussion Draft covers its final part, which sets forth about a dozen proposed revisions that OPR characterizes as merely “Minor Technical Improvements.”  (Discussion Draft, at 108-145.)
Continue Reading Proposed CEQA Guidelines Amendments: A Critique of OPR’s “Preliminary Discussion Draft” (Part III – Proposed “Minor Technical Improvements”)

On September 9, 2015, the California Supreme Court denied review and decertified the Fourth District Court of Appeal’s previously published opinion in Albert Thomas Paulek v. Western Riverside Regional Conservation Authority, which had appeared at 238 Cal.App.4th 583. A discussion of the issues presented by the case and my analyses of the Court of Appeal’s reasoning on them can be found in my post on the originally published opinion. (See “Fourth District Holds Agency’s Removal of Conservation Designation From Land Formerly Protected Under MSHCP Is ‘Project’ Subject to CEQA; Class 7 and 8 Categorical Exemptions for Environmentally Protective Regulatory Actions Do Not Apply,” by Arthur F. Coon, posted July 2, 2015.)

The Supreme Court’s depublication order means that while the decision remains binding on the parties to the case, it will not be citable as precedential authority under California law.Continue Reading Supreme Court Depublishes Lengthy CEQA Categorical Exemption Case

In a 47-page published decision filed June 17, 2015, the Fourth District Court of Appeal reversed the trial court’s judgment denying a writ petition, and held that Respondent Western Riverside County Regional Conservation Authority (“Agency”) must comply with CEQA before “refining” its Multiple Species Habitat Conservation Plan (“MSHCP”) to exclude a 200-acre parcel of ranch land owned by Anheuser-Busch, LLC (“Busch”) from its protections against development. Albert Thomas Paulek v. Western Riverside County Regional Conservation Authority (Anheuser-Busch, LLC, Real Party in Interest) (4th Dist., Div. 2, 2015) 237 Cal.App.4th 1005.
Continue Reading Fourth District Holds Agency’s Removal of Conservation Designation From Land Formerly Protected Under MSHCP Is “Project” Subject to CEQA; Class 7 and 8 Categorical Exemptions for Environmentally Protective Regulatory Actions Do Not Apply

In a published opinion filed February 18, 2015, the Third District Court of Appeal rejected all legal challenges to the City of Sacramento’s EIR and CEQA compliance for approval of its new downtown entertainment and sports center (ESC) which will serve as the Sacramento King’s new home arena. Saltonstall v. City of Sacramento (3d Dist. 2015) 234 Cal.App.4th 549. Key points of the Court’s decision, which affirmed the trial court’s judgment denying the writ sought by project opponents, include:
Continue Reading CEQA Review of Sacramento Kings Downtown Arena Project Held Legally Adequate In Published Third District Opinion

In a decision recently ordered published, the Fourth District Court of Appeal added to the growing progeny of Save Tara, and affirmed the trial court’s judgment denying the City of Irvine’s writ petition seeking to compel Orange County to prepare an EIR for its submittal of an application for state funding to expand a jail facility.  City of Irvine v. County of Orange (4th Dist., Div. 3, 2013) 221 Cal.App.4th 846.  County’s funding application under the State’s AB 900 process did not commit it to a definite course of action regarding the jail expansion, however, and was merely a preliminary funding step; it was therefore not the “approval” of a project requiring CEQA review.
Continue Reading All About “Commitment”: CEQA Review is Not Triggered By Orange County’s AB 900 Application For State Funding To Expand Existing Jail Facility, Which Was Not A Project Approval

One of the most vexing issues arising under CEQA, particularly in cases of projects involving public-private partnerships or projects requiring public agency financial assistance, is the question of when project approval occurs.  Like pregnancy, project approval is an all-or-nothing condition with profound consequences – yet the law provides no “bright line” test for when project approval, and the concomitant requirement of completed CEQA review, occurs.
Continue Reading Navigating Between CEQA’s Scylla and Charybdis: First District Applies Save Tara Analysis and Rejects Claims of Improper Project “Preapproval” in Neighbors For Fair Planning v. City and County of San Francisco

Harmonizing CEQA’s rules and principles is, to say the least, not always easy, and is often quite challenging.  The relevant concepts are often in tension, or are so malleable that they can be argued or construed to conflict.  For example, environmental review must commence at the earliest “practicable” time, in order to make fully informed decisions at a project’s formative stages and avoid undue project “momentum” or “post-hoc rationalizations”; yet it should not occur so early that it would be “speculative” or not “meaningful” due to lack of sufficient data from a crystallized development project proposal.  To cite another example, a “project” refers to the “activity being approved,” but also to the “whole of an action” and not just individual discretionary permits that trigger CEQA review.  And, a “project approval” occurs at the lead agency’s earliest commitment to a “definite course of action” regarding a proposed project.  Fuzzy concepts like these can be difficult to apply, and supply ample fodder for CEQA litigation.  They tend to produce heavily fact-specific decisions offering unclear guidance to lead agencies and project proponents.
Continue Reading Fourth District Applies CEQA’s “Murky” Piecemealing Tests To Reject “Project Definition” Challenge To Park Development in Banning Ranch Conservancy

Governor Jerry Brown was recently quoted in a Capitol Alert piece as calling legislative reform of CEQA “the Lord’s work” – hopefully he didn’t mean the quest for the Holy Grail – although he admitted in the same article he hadn’t yet read the latest bills proposing to limit its scope.  In the short time since then, SB 317 (the most significant effort at CEQA reform this year) appears to have died in the waning days of this Legislative session.  While “hope springs eternal,” meaningful legislative reform of CEQA thus continues to prove elusive.
Continue Reading Are Courts Actively Limiting CEQA’s Scope In The Absence of Meaningful Legislative Reform?