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Arthur F. Coon is the Co-Chair of Miller Starr Regalia’s Land Use Practice Group and Chair of its Appellate Practice Group. Art has distinguished himself over a more than 30-year career as a top CEQA and land use law litigator at the trial and appellate levels of both federal and state courts, including an appearance as counsel of record before the U.S. Supreme Court. His areas of expertise include land use, environmental law, the law of public agencies, extraordinary writs, and the California Environmental Quality Act (CEQA).

In a published opinion filed February 9, 2021, the Sixth District Court of Appeal affirmed the trial court’s judgment dismissing a CEQA action challenging the EIR and project approvals for two development options (1.2 million square feet of light industrial, or 436,880 square foot data center/PG&E substation/728,000 square feet of light industrial) on a 64.5-acre fallow farmland site in the City of San Jose.  Organizacion Comunidad de Alviso v. City of San Jose (Microsoft Corporation, et al., Real Parties in Interest) (2021) 60 Cal.App.5th 783.  The Court of Appeal held that the trial court did not err in dismissing the action as time-barred after plaintiff OCA failed to timely join a necessary and indispensable real party in interest (Microsoft Corporation) within 30 days of the City’s filing of a second Notice of Determination (NOD) for the project.  (As full disclosure, I represented Microsoft in this action.)

Continue Reading Sixth District Affirms Judgment Dismissing CEQA Action For Failure To Timely Join Indispensable Real Party Within Limitations Period Triggered By Filing of Second, Valid NOD; Court Rejects Plaintiff’s Arguments Based On Relation Back, Estoppel, and City’s Violation of Statute Requiring It To Mail Operative NOD

On May 20, 2021, Governor Newsom signed into law Senate Bill No. 7, the “Jobs and Economic Improvement Through Environmental Leadership Act of 20216” (the “Act”), which repealed and added Chapter 6.5 to Division 13 of the Public Resources Code (sections 21178 through 21189.3).  The new Act, which was immediately effective as an “urgency” statute, essentially modifies and reenacts former 2011 legislation that was repealed by its own terms on January 1, 2021.  Like the former leadership act, the new legislation authorizes the Governor, until January 1, 2024, to certify certain “environmental leadership development projects” (“leadership projects”) that meet specified requirements for streamlining benefits related to CEQA.  (Pub. Resources Code, §§ 21180, 21181.)  To qualify for CEQA streamlining benefits under the new Act, the Governor must certify a project as a leadership project before January 1, 2024.  (§ 21181.)

Continue Reading CEQA Urgency Legislation Reenacts Modified Version of Environmental Leadership Act, Adds Certain Housing Development Projects As Eligible For Governor Certification And Streamlining Benefits

In an opinion filed April 23, and later certified for publication on May 13, 2021, the Fourth District Court of Appeal affirmed in part an order denying an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, and held that a malicious prosecution action could proceed against losing CEQA plaintiffs who had unsuccessfully challenged a Mitigated Negative Declaration (MND), but not against their attorneys.  Jan Dunning, et al. v. Kevin K. Johnson, APLC, et al. (4th Dist. 2021) ___ Cal. App. 5th ___. While the merits of the malicious prosecution action have yet to be determined, the Court of Appeal’s ruling that the action could even proceed is itself significant given the daunting hurdle posed by the anti-SLAPP statute, and should give pause to project opponents who think that meritless CEQA litigation lacking probable cause and brought with malice can be pursued without potential consequence.

Continue Reading Is More Litigation the Remedy for Meritless CEQA Litigation? Fourth District Concludes Malicious Prosecution Action Against Losing CEQA Plaintiffs Survives Anti-SLAPP Motion

In a lengthy opinion filed April 8, and ordered published on May 7, 2021, the Third District Court of Appeal affirmed a judgment rejecting a number of CEQA challenges to the California State Land Commission’s (Lands Commission) supplemental EIR for and related approval of a lease modification to facilitate a desalination plant in Huntington Beach.  California Coastkeeper Alliance v. State Lands Commission (Poseidon Resources (Surfside) LLC, Real Party in Interest) (2021) ___ Cal.App.5th ___.  In holding that the Commission properly elected to prepare a supplemental (rather than subsequent) EIR, did not err in refusing to assume lead agency status, and did not unlawfully piecemeal environmental review, the Court provided guidance on a number of significant CEQA issues.

Continue Reading Third District Affirms Judgment Upholding State Lands Commission’s Supplemental EIR For Desalination Plant Lease Modification, Rejects CEQA Claims That Commission Piecemealed Review And Should Have Assumed Lead Agency Status And Prepared A Subsequent EIR

In an 85-page opinion filed March 25, and modified and certified for partial publication on April 23, 2021, the First District Court of Appeal affirmed the Napa County Superior Court’s judgment denying a writ petition challenging the County’s EIR and approvals for an expansion of Syar Industries, Inc.’s (Syar) aggregate mining operations at a quarry that has existed since the 1800s.  Stop Syar Expansion v. County of Napa (1st Dist. 2021) ____ Cal.App.5th ____.  The Court belatedly published about 25 pages of its lengthy opinion, which portions addressed basic CEQA principles, including standard of review and exhaustion principles, and the interplay of CEQA and general plan consistency issues.

Continue Reading First District Affirms Judgment Rejecting CEQA and General Plan Consistency Challenges to Napa County’s EIR for Syar Quarry Expansion Project, Addresses Significant Exhaustion and Land Use Issues

Falling more into the category of “spring cleaning” than “breaking news,” readers should note that a Second District decision, published last spring and covered in this blog, was ordered depublished by the California Supreme Court late last summer.

Continue Reading Supreme Court Denies Review of And Depublishes Second District Refinery Project Case Addressing CEQA Baseline Issues

In a published opinion filed on February 1, 2021, in an action arising from plaintiffs/appellants’ (“plaintiffs”) “potpourri” of unsuccessful legal challenges to the City of San Francisco’s decision to remove a controversial public monument celebrating California’s pioneer era, the First District Court of Appeal upheld dismissal of a CEQA claim for failure to exhaust administrative remedies.  Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470.

Continue Reading Failure to Pursue and Exhaust Administrative Appeal Remedy Results In Forfeiture of CEQA Challenge To Categorical Exemption Despite Lower Body’s Defective Hearing Notice

I’m very pleased to report that my colleague Travis Brooks will be speaking on CEQA issues and recent developments online at the 35th annual California Water Law & Policy Conference, which is presented by Argent Communications and will take place in virtual format on April 19 and 21, 2021.  Miller Starr Regalia is a sponsor of the conference “California Water Rights, Policies Regulation, and the Future Under the New Administration,” and Travis’s topic, “CEQA Update:  Yes, Water Practitioners Need to Know This,” will be presented on April 19, 2021, at 1:15 p.m.  The Conference webpage and brochure can be found here and here, and registration information and materials can be accessed here.

Continue Reading Miller Starr Attorney To Present On CEQA Developments At Upcoming Water Law Conference

“The more I know, the less I understand/All the things I thought I’d figured out, I have to learn again” – Don Henley, “The Heart of the Matter”

One of CEQA’s bedrock principles is that environmental review must precede project approval.  (E.g., POET, LLC v. California Air Resources Board (2013) 217 Cal.App.4th 1214; CEQA Guidelines, § 15004(a).)  To reverse the order and “put the cart before the horse” would be anathema, i.e., to sanction uninformed and undemocratic lead agency decision making, and to encourage irretrievable commitments of resources and post-hoc rationalizations that foreclose mitigations and alternatives and sweep environmental considerations under the rug.  Right?  Well …  maybe not.  In the area of State Water Resources Control Board (“SWRCB” or the “State Board”) water quality certifications (“WQCs”) under the Federal Clean Water Act (“CWA”; 33 U.S.C § 1251 et seq), this bedrock principle appears to have been watered down, and it may be significantly eroding under pressure from a preemptive federal law deadline.


Continue Reading Must CEQA Compliance Precede Project Approval? When State Water Board Water Quality Certifications Are Involved, The Answer Is As “Clear as Mud”

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.

Continue Reading Why Are CEQA Cases Published Or Not? Observations From A Look Back at 2020’s Decisions