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
Recent Cases Show How CEQA’s Applicability And Substantive EIR Requirements Are Determined By Meaningful Agency Discretion
It is a fundamental precept of CEQA that it applies only to the discretionary approval of a project. If an agency has no discretion to deny or shape the project to address environmental concerns, CEQA review would be a pointless and futile exercise, no matter what adverse environmental impacts of the project it might reveal. Recent decisions continue to illustrate how an agency’s discretion under substantive law constrains CEQA’s applicability as a threshold matter, and how it can also affect the scope of required environmental review when CEQA does apply.
Continue Reading Recent Cases Show How CEQA’s Applicability And Substantive EIR Requirements Are Determined By Meaningful Agency Discretion
Supreme Court Case Involving CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions Now Fully Briefed by Parties; Amicus Briefs Are Up Next in Berkeley Hillside Preservation Matter
The Respondent City of Berkeley and Real Parties (Kapors) filed their joint Reply Brief on the Merits in the California Supreme Court in a much-watched categorical exemption case, Berkeley Hillside Preservation, et al. v. City of Berkeley, et al. (No. S201116). The case arose from the City’s approval of a large, single-family hillside home as categorically exempt from CEQA notwithstanding project opponents’ contention that an exception to the exemptions applied due to the project’s potential for significant environmental impacts. (See my initial post on May 23, 2012 [“Supreme Court Will Review Categorical Exemption Exception in Berkeley Hillside Preservation Case”], and follow-up posts on August 2, 2012, and October 25, 2012.)
Continue Reading Supreme Court Case Involving CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions Now Fully Briefed by Parties; Amicus Briefs Are Up Next in Berkeley Hillside Preservation Matter
CEQA Standing Reform: Could Statutory Standing Requirements Feasibly Be Tightened To Bar Anti-Competitive Lawsuits Motivated By Economic Rather Than Environmental Concerns?
Meaningful CEQA reform is a topic much discussed by politicians and stakeholders, but its realization remains elusive. For example, in-fill exemptions are fettered with multitudes of complex and convoluted conditions and exceptions to the point of uselessness. In addition, many of the law’s most basic concepts – e.g., standards of review for exemptions; standards for permissible deferred mitigation; requirements for EIR alternatives and cumulative impacts analysis; what constitutes a “project approval,” or the appropriate environmental “baseline” – are unclear and frequently misapplied. And what constitutes an “abusive” or “frivolous” CEQA lawsuit brings much debate among CEQA attorneys. The uncertainty that results from these circumstances can substantially delay, increase the costs of, and ultimately kill even thoughtful, well-designed development projects. Yet CEQA has undeniably protected and improved the quality ofCalifornia’s environment over the last 40 years and reform proposals understandably tend to be viewed with skepticism; many fear “throwing out the baby with the bathwater.”
Continue Reading CEQA Standing Reform: Could Statutory Standing Requirements Feasibly Be Tightened To Bar Anti-Competitive Lawsuits Motivated By Economic Rather Than Environmental Concerns?
Common Sense Reading of CEQA Remedies Statute Authorizes “Limited Writ” for Violations, Fourth District Holds, Rejecting Contrary Fifth District Decision
In a recent published decision addressing cumulative impacts, deferred mitigation, and water supply analysis issues, the Fourth District Court of Appeal’s most significant CEQA pronouncements may have been those addressing permissible remedies under Public Resources Code § 21168.9. Specifically, in Preserve Wild Santee v. City of Santee (4th Dist. 2012) 210 Cal.App.4th 260, the Court of Appeal made the following points:
Continue Reading Common Sense Reading of CEQA Remedies Statute Authorizes “Limited Writ” for Violations, Fourth District Holds, Rejecting Contrary Fifth District Decision
Impossible and Useless CEQA Review Is Required If City Opts Under Elections Code to Adopt Legislative Project Approvals Proposed By Qualified Citizen Initiative Petition – Fifth District’s Holding In Walmart Rejects Fourth District Precedent and Creates Split In Authority
In a case notable for its unique conception of “meaningful discretion” for purposes of triggering CEQA review, the Fifth District Court of Appeal has created a split in authority that will undoubtedly require Supreme Court review (or depublication) to resolve. In its partially published opinion in Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County (Wal-Mart Stores, Inc., RPI) (5th Dist.10/30/12) ___ Cal.App.4th ___ 2012 WL 5350450, the Court of Appeal granted a writ of mandate directing the Superior Court to overrule a demurrer it had sustained without leave to two causes of action of a CEQA writ petition. The petition challenged the City of Sonora’s action approving without alteration a qualified citizen-initiated ballot proposal — dubbed the “Walmart Initiative” — that would enact the necessary legislative approvals (general plan, specific plan and zoning enactments) to expand an existing 130,000-square foot Walmart store into a larger “Supercenter” that sold groceries and operated 24 hours a day, seven days a week.
Continue Reading Impossible and Useless CEQA Review Is Required If City Opts Under Elections Code to Adopt Legislative Project Approvals Proposed By Qualified Citizen Initiative Petition – Fifth District’s Holding In Walmart Rejects Fourth District Precedent and Creates Split In Authority
EIR Satisfies CEQA Despite Minor Deficiencies and Inaccuracies Where Environmental Review Process Not Prejudiced, Third District Holds
A unanimous Third District panel upheld SiskiyouCounty’s EIR for Roseburg Forest Products Co.’s (Roseburg) electricity cogeneration project involving expansion of its existing wood veneer manufacturing facility. (Mount Shasta Bioregional Ecology Center v. County of Siskiyou (3d Dist. 9/26/12) 210 Cal.App.4th 184. In rejecting the CEQA challenge brought to the EIR by plaintiffs Mount Shasta Bioregional Ecology Center (MSBEC) and Weed Concerned Citizens (WCC), the Court of Appeal resolved a key issue of first impression regarding the adequacy of an EIR’s alternatives analysis. It also rendered numerous holdings reaffirming the substantial deference CEQA accords to an EIR’s analysis and conclusions, and reinvigorating CEQA’s “established [statutory] principle that there is no presumption that error is prejudicial.” (Pub. Resources Code, § 21005(b).)
Continue Reading EIR Satisfies CEQA Despite Minor Deficiencies and Inaccuracies Where Environmental Review Process Not Prejudiced, Third District Holds
CEQA Roundup: Supreme Court Grants and Holds in City of Hayward; Lengthy Answer Brief Submitted In Berkeley Hillside Preservation; Senator Steinberg Aims for 2013 Reform
As Halloween approaches, there is a “mixed bag” of CEQA developments to briefly note:
- Just a week after extending its time to act on the City of Hayward’s petition for review of the First Appellate District’s (Div. 3) decision in City of Hayward v. Trustees of the California State University, (Case No. S203939) (“City of Hayward”) the California Supreme Court, on October 17, 2012, granted the petition and held the case (Case No. S203939), deferring further action pending its consideration and disposition of a related issue in City of San Diego v. Board of Trustees of the California State University, Case No. S199557. The City of Hayward case, which is now unciteable as precedent due to the grant of review, was summarized in my blog post of July 12, 2012 (“First District Reaffirms CEQA Is Concerned With Physical Impacts on the Environment, Not Economic Ones on Government Services”). The Supreme Court’s docket identified the relevant issue under consideration in City of San Diego as: “Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under [CEQA] by stating that it has sought funding from the legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?”
CEQA’s Unusual Circumstances Exception To Small Structures Categorical Exemption Is Applied By Third District To Water Supply MOU With Indian Tribe
As the regulated community eagerly awaits completion of briefing at the Supreme Court in the Berkeley Hillside Preservation case, the Courts of Appeal continue to decide CEQA categorical exemption cases – as is their nondiscretionary duty – without the high court’s forthcoming guidance. The most recent such case is the Third District’s published decision in Voices for Rural Living v. El Dorado Irrigation District (Shingle Springs Band of Miwok Indians, RPI) (10/4/12, 3d Dist.) 209 Cal.App.4th 1096, No. C064280. The case illustrates application of the unusual circumstances exception to categorical exemptions in a fairly unusual context – a water supply MOU for an already-built and operating Indian casino and hotel in El Dorado County – and offers interesting insights on CEQA exemption and water supply issues, as well as issues involving the nature and authority of LAFCO and special districts in the context of annexation approval conditions.
Continue Reading CEQA’s Unusual Circumstances Exception To Small Structures Categorical Exemption Is Applied By Third District To Water Supply MOU With Indian Tribe
Timing Is Everything: CEQA Notice of Exemption Must Be Both Facially Valid And Properly Filed To Trigger Short Limitations Period
In a partially published opinion filed September 14, 2012, the Fifth District Court of Appeal revived a CEQA lawsuit the trial court had dismissed as time-barred on demurrer because it was filed 55 days after the City of Visaliafiled a notice of exemption (“NOE”). The case – Coalition for Clean Air v. City of Visalia (VWR International, LLC) ) (Sept. 14, 2012) 209 Cal.App.4th 408, Case No. F062983 – may be viewed as “blurring” a “bright line” rule stated by the Supreme Court just two years ago, but it provides a valuable reminder to CEQA action respondents and real parties of the “t”’s that must be crossed and the “i”’s that must be dotted to ensure they can take advantage of CEQA’s short statute of limitations period (35 days) when relying on an exemption. The decision’s key points on this important issue include:
Continue Reading Timing Is Everything: CEQA Notice of Exemption Must Be Both Facially Valid And Properly Filed To Trigger Short Limitations Period