Matthew C. Henderson

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On August 10, 2023 the Sixth District Court of Appeal filed its published opinion in Santa Rita Union School District v. City of Salinas (2023) 94 Cal.App.5th 298.  On September 7, 2023, it filed an Order slightly modifying its opinion without modifying the judgment and denying rehearing.  The case concerns the certification of an EIR for the “West Area Specific Plan” in and by the City of Salinas, and claims by two school districts in the City that asserted perennial underfunding meant that the EIR failed to adequately address school-related impacts.  While the trial court agreed in part, granting narrow writ relief enjoining future entitlements while leaving the specific plan approval in place, the Sixth District did not, holding that the districts’ expressed concerns were speculative in nature and need not have been evaluated in the EIR.Continue Reading Sixth District Reverses Judgment Finding Specific Plan FEIR Inadequate For Failure To Adequately Analyze And Respond To Comments Regarding School Facilities-Related Impacts; Court Of Appeal Holds FEIR Was Adequate In All Respects And Was Not Required To Speculate Regarding Possible Environmental Impacts From Uncertain Future School District Decisions Made To Accommodate Increased Enrollment Should Funds Prove Unavailable To Construct New Schools Contemplated In Plan

On July 7, 2023, following a request for publication made on behalf of the California Building Industry Association, the Building Industry Association of the Bay Area, and the California Business Properties Association, the Fourth District Court of Appeal ordered published its decision originally filed on June 8, 2023, affirming the trial court’s judgment upholding a Newport Beach multifamily project approval against various CEQA challenges.  Olen Properties Corp. v. City of Newport Beach (2023) 93 Cal.App.5th 270.Continue Reading Fourth District Belatedly Publishes CEQA Opinion Upholding City of Newport Beach’s Approval of Multifamily-Housing Development Pursuant To Addendum To 2006 EIR For Larger Mixed-Use Development

In late April the Bay Area Air Quality Management District (“BAAQMD”) promulgated its revised 2022 CEQA Guidelines (“2022 Guidelines”), available here.  Previously BAAQMD had published guidelines in 2012, which were the subject of litigation culminating in the California Supreme Court’s decision in California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, an important case delineating the scope of CEQA in which we represented several amici curiae and which we blogged about here.Continue Reading BAAQMD Adopts Ambitious Revised 2022 CEQA Guidelines

On April 7, 2023, the Third District Court of Appeal filed a lengthy published opinion – the latest installment in one of the longer ongoing CEQA battles in recent memory – affirming a judgment finding an EIR for the Federal relicensing of Oroville Dam and related hydropower facilities legally adequate.  County of Butte and County of Plumas, et al v. Dept. of Water Resources  (2023) 90 Cal.App.5th 147.Continue Reading That Dam Case (Again):  Third District Upholds Oroville Hydropower Facilities Relicensing EIR Against Numerous CEQA Challenges

On February 27, 2023, the Second District Court of Appeal (Division One) filed its published decision in Los Angeles Waterkeeper v. State Water Resources Control Board (2023) 88 Cal.App.5th 874, a case mainly focused on water law but which also has some significant CEQA implications.  Briefly put, the petitioner in Los Angeles Waterkeeper attempted to bypass a statutory limitation on CEQA review through an action that would, if successful, have resulted in the imposition of additional substantive and procedural environmental review requirements on certain projects for which no EIR is required. As explained below, the Second District rejected this invitation to expand CEQA’s reach.Continue Reading Second District Affirms Judgment Upholding Water Code CEQA Exemption, Rejects Plaintiff’s Attempt To Extend CEQA Review And Findings Requirements To Regional Water Board’s Approval Of Waste Discharge Permits

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.
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.
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.
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