Matthew C. Henderson

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As all CEQA practitioners know, a prospective petitioner in a writ proceeding challenging a CEQA determination must first exhaust available administrative remedies as a prerequisite to filing suit.  But which remedies are subject to that requirement?  That is the question presented in the recent case of American Chemistry Council v. Dept. of Toxic Substances Control (5th Dist. 2022) 86 Cal.App.5th 146, originally filed on November 18, 2022, and certified for publication on December 12, 2022.

The American Chemistry Council case deals with the interplay of CEQA with another statutory scheme, the so-called “Green Chemistry” law (Health & Safety Code, § 25251 et seq.) and its implementing Safer Consumer Products regulations (Cal. Code Regs., tit. 22, § 69501 et seq.), in the context of exhaustion of administrative remedies.  The case illustrates the sometimes perilous position of a CEQA practitioner seeking to satisfy the exhaustion requirement while avoiding the running of the very short statutory limitations period within which a CEQA action must be commenced.…

Continue Reading Fatal “Exhaustion”: Fifth District Holds CEQA’s Statute of Limitations Ran Out On Plaintiff’s Claim While Plaintiff Thought It Was Still In Process Of Exhausting Administrative Remedies

“We didn’t start the fire….”

-Billy Joel

Wildfires are an unfortunate reality of life in California and have become of increasing concern over the past several years.  Eight of the ten largest wildfires in the state since 1932 have occurred in the last decade (five of which took place in 2020 alone).…

Continue Reading Attorney General’s Guidance On “Best Practices” For CEQA Analysis Of And Mitigation For Wildfire-Related Impacts Is Long On Litigation And Policy Advocacy, Short On Neutral Legal Analysis

The First District Court of Appeal filed on June 30, and later ordered published on July 26, 2022, its opinion in County of Mono v. City of Los Angeles (1st Dist. No. A162590) 81 Cal.App.5th 657.  The case involves another round in the long-running controversies surrounding Los Angeles’s efforts to secure water for its populace.  As the City now owns substantial acreage in the Sierra Nevada from which it takes much of its water, it serves both as landlord and water user in that region.  The overlap of those two roles gave rise to the County of Mono case, in which the County sought to use CEQA litigation as leverage over the City’s water allocations to agricultural users who lease property from the City.  The case holds that the City’s water allocations to the City’s agricultural lessees were authorized under its existing 2010 leases and thus did not constitute a new project subject to CEQA review before they could be lawfully implemented. The case provides guidance to practitioners on when and how CEQA applies to  public contracts, and also regarding the appropriate contents of the administrative record in CEQA litigation challenging staff level actions implementing existing leases.  Entitlement and litigation attorneys should accordingly both find it a useful case to review.
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Continue Reading First District Holds LA’s Water Allocations To Agricultural Lessees Were Authorized Under Existing Leases And Did Not Constitute Or Implement A Separate “Project” Subject to CEQA Review

As the world continues to dig out from the aftermath of the Covid 19 pandemic, the aftereffects of the earliest phase of lockdowns continue to be felt, including in the world of CEQA litigation.  While this blog does not ordinarily focus on unpublished appellate decisions, the recent case of Committee for Sound Water and Land Development v. City of Seaside, H049031 (6th Dist., May 9, 2022) is worth a look given its analysis of CEQA’s statute of limitations and its extension by emergency actions of the Judicial Council, as well as its handling of the tricky scenario of what happens when an approving agency is dissolved by operation of law.
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Continue Reading Sixth District Upholds Constitutionality of Judicial Council’s Covid Emergency Rules Altering CEQA’s Statutes of Limitations In Unpublished Opinion

In an opinion filed on December 16, 2021, and belatedly ordered published on January 13, 2022, the Fourth District Court of Appeal rejected a CEQA challenge to a small multifamily project in the City of Santa Cruz.  Ocean Street Extension Neighborhood Assn. v. City of Santa Cruz (2021) 73 Cal.App.5th 985 (“OSENA”).  The case contains valuable guidance regarding mitigation for biological resources impacts, lays out some common sense principles that may help condense the EIR preparation process, and also provides useful guidance to developers and agencies dealing with water supply issues during the current drought.
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Continue Reading Fourth District Rejects CEQA And Municipal Code Challenges To City Of Santa Cruz’s Project Approvals And EIR For Small Multifamily Housing Project

Against the backdrop of another severe drought, water supply and impact issues continue to be points of contention for water agencies, water users, conservation groups, and the state.  And, of course, litigation over water is not limited to water rights and usage, but extends to related environmental review under CEQA.  On September 22, 2021, the Third District Court of Appeal issued a published opinion in Central Delta Water Agency v. Department of Water Resources (2021) 69 Cal.App.5th 170, disposing of several consolidated cases and analyzing operation of the state’s massive State Water Project (SWP) through a CEQA lens.  While the case does not break any new legal ground, it applies well-recognized CEQA principles to a lengthy and complex fact pattern involving multiple rounds of lengthy litigation, settlement, and EIR preparation.
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Continue Reading Third District Affirms CEQA And Attorneys’ Fees Judgments In Favor Of Department Of Water Resources In Monterey Agreement And Amendment Litigation

Late last month the Governor’s Office of Planning and Research (OPR) released two documents of interest to CEQA practitioners.  One is a discussion draft of a “CEQA and Climate Change Advisory.”  The other is an update to its previous “Technical Advisory on Evaluating Transportation Impacts in CEQA.”
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Continue Reading CEQA Regulatory Update: OPR Provides Further Guidance on VMT, Asks for Input on GHGs; Guidelines Revisions Now Effective