On September 13, 2011, I began the endeavor of writing Miller Starr Regalia’s CEQA Developments blog.  Ten years and 358 blog posts later, it continues to be a challenging and rewarding task.  Since my inaugural post (which can be viewed here) was a “top ten” list of CEQA litigation mistakes to avoid, I thought an appropriate tenth anniversary post might be a list of the ten most significant CEQA case law developments over the past decade.  My “top ten” list is definitely subjective, is limited to Supreme Court decisions, and (by its very nature) fails to include many important judicial developments.  Nonetheless, here it is (with the decisions listed in no particular order):

Continue Reading A Decade of CEQA Developments

In a published opinion filed August 19, 2021, the Second District Court of Appeal reversed a judgment of the Los Angeles County Superior Court that found fault with the EIR for an improvement project within the San Gabriel Mountains National Monument portion of the Angeles National Forest.  Save Our Access – San Gabriel Mountains v. Watershed Conservation Authority (2021) ___ Cal.App.5th ___.  The trial court had rejected plaintiff’s claims that CEQA required the EIR to analyze alternatives beyond the “no project” alternative, and that the project was inconsistent with applicable land use and management plans, but issued a writ requiring additional analysis of the project’s parking reduction “impacts.”  In resolving the ensuing appeals of both parties, the Court of Appeal reversed the judgment on the parking issue, finding that reduction in parking is a social not environmental, impact and that plaintiff had failed to identify any secondary adverse physical effects on the environment resulting from the reduction.  It affirmed the remainder of the judgment denying plaintiff’s other claims, and reversed the trial court’s fee award to plaintiff as compelled by its disposition of the merits.

Continue Reading Second District Confirms Parking Is (Still) Not A CEQA Impact, Reverses Judgment That Found EIR For San Gabriel Mountains Wilderness Recreation And Preservation Project Deficient For Not Sufficiently Analyzing “Impact” Of Reducing Recreational Parking

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 August 17, 2020, the Third District Court of Appeal mostly affirmed the trial court’s judgment upholding Placer County’s partial abandonment of public easement rights in an emergency access/public transit road connecting two Lake Tahoe-area residential subdivisions; the County took the action to resolve disputes that had arisen after one subdivision’s residents began using the road as an all-purpose public road and short-cut through the other subdivision to get to Northstar-at-Tahoe.  Martis Camp Community Association v. County of Placer, et al. (Retreat at Northstar Association, et al., Real Parties in Interest) (2020) _____ Cal.App.5th _____________.  My partner Bryan Wenter’s post covers the land use issues at the heart of the case, and can be found here; readers should consult that post for the case’s factual background and primary holdings.  This post covers the CEQA issue at the “tail end” of the opinion, which involved application of CEQA’s “subsequent review” rules to County’s partial road abandonment project.

Continue Reading Hitting A CEQA Snag: Third District Affirms Rejection of Statutory Road Abandonment And Brown Act Challenges And Inverse Condemnation Claim, But Holds Placer County Violated CEQA By Adopting Addendum To Wrong Project’s EIR

In a mammoth 132-page published opinion (with an additional five pages of appendices) filed on June 12, 2020, the Fourth District Court of Appeal (Division One) mostly affirmed the trial court’s judgment invalidating San Diego County’s approvals of a 2018 Climate Action Plan (CAP), related Guidelines for Determining Significance, and related Supplemental EIR (SEIR).  The opinion – which marked “the third time the County’s attempt to adopt a viable climate action plan and related CEQA documents” had been before the Court – resolved consolidated appeals in three cases, in which the lead plaintiffs were Golden Door Properties, LLC and the Sierra Club.  (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467.)  While the Court of Appeal reversed the trial court’s findings that the CAP was inconsistent with the County’s General Plan (applying the familiar highly deferential standard of review to the County’s consistency determination), that several of the County’s responses to SEIR comments were inadequate, and that the SEIR’s geographical scope of study for cumulative impacts was inconsistent, it otherwise affirmed the trial court’s findings of significant CEQA violations affecting the CAP and SEIR.

Continue Reading Third Time Is Not The Charm: Fourth District Affirms Judgment Setting Aside San Diego County’s Climate Action Plan And Related Supplemental EIR Approvals Due To CEQA Violations

In a published 2-1 majority opinion filed April 7, 2020, written by Justice Wiley and joined by Presiding Justice Bigelow, the Second District Court of Appeal (Div. 8) affirmed a judgment upholding the EIR for Tesoro’s “Los Angeles Refinery Integration and Compliance Project.”  Communities for a Better Environment v. South Coast Air Quality Management District (Tesoro Refining and Marketing Company, LLC, Real Party in Interest) (2d Dist. 2020) 47 Cal.App.5th 588.  The project involved Tesoro’s adjacent Carson and Wilmington oil refining facilities, which date from the early 1900s, and sought (1) to better integrate those facilities to increase flexibility in output ratios (e.g., of gasoline and jet fuel) to respond to market demands, and (2) to increase regulatory compliance by reducing air pollution.

Continue Reading Back To CEQA Basics: Second District Teaches That CEQA Requires Judicial Deference To Lead Agency’s Chosen Baseline, Failure To Administratively Exhaust “Exact Issue” Results In Forfeiture, And An EIR Is Not Faulty For Omitting Immaterial Information

In an opinion filed September 6, and later ordered published on October 7, 2019, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment denying plaintiff groups’ writ petition challenging Sonoma County’s use permit and related mitigated negative declaration (MND) for a winery project in the County’s rural Knights Valley area.  Maacama Watershed Alliance, et al v. County of Sonoma, et al. (James Bailey, Knights Bridge Vineyards, LLC, Real Parties in Interest) (2019) 40 Cal.App.5th 1007.

Continue Reading First District Affirms Judgment Upholding MND for Rural Sonoma County Winery Project, Holds Unsubstantiated Expert Opinion Fails to Support Fair Argument of Geologic, Erosion Or Groundwater Impacts

In an opinion originally filed June 28, and later certified for partial publication on July 22, 2019 (upon the request of the California Building Industry Association), the Second District Court of Appeal affirmed a judgment denying a CEQA writ petition challenging a project converting a vacant former apartment building into a boutique hotel in Los Angeles’ Hollywood area.  Hollywoodians Encouraging Rental Opportunities (HERO) v. City of Los Angeles et al. (Millennium Settlement Consulting/1850 North Cherokee, LLC et al., Real Parties in Interest) (2019) 37 Cal.App.5th 768.  The MND for the project was legally adequate, and the City did not err in failing to prepare an EIR to analyze loss of affordable housing and tenant displacement impacts, because the former apartment building had been withdrawn from the rental market for years and was vacant at the time environmental review for the hotel project commenced.  Because the relevant CEQA baseline when review commenced in 2015 was a vacant building already withdrawn from the rental market, the record did not support a fair argument that conversion of the building to hotel use would have significant impacts on Hollywood’s stock of rent-controlled housing or displacement of residents.

Continue Reading “Baseline” Basics: Second District Rejects CEQA Challenge To Hollywood Hotel Project MND Alleging Unanalyzed Human/Housing Displacement Impacts Because Plaintiffs Relied On Incorrect Environmental Baseline

In a 38-page opinion filed on May 16, and belatedly ordered published on June 14, 2019, the Third District Court of Appeal affirmed the trial court’s judgment rejecting all of plaintiff/appellant Center for Biological Diversity’s (“CBD”) CEQA and statutory challenges to the EIR that the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (“DOGGR”) was required by S.B. 4 (Stats. 2013, ch. 13, § 2) to prepare “pursuant to [CEQA], to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state.”  (Pub. Resources Code, § 3161(b)(3)(A).)  The Court’s opinion addresses and disposes of CBD’s CEQA and other challenges in a highly unusual, and even unprecedented, context – that of a statutorily required program EIR addressing the statewide impacts of oil and gas well-stimulation treatments (including the controversial treatment known as hydraulic fracturing or “fracking”) prepared in the absence of any “project” being approved or undertaken by the ostensible “lead agency” (DOGGR).  Center for Biological Diversity v. California Department of Conservation, Division of Oil, Gas and Geothermal Resources, et al. (3d Dist. 2019) 36 Cal.App.5th 210.

Continue Reading The Curious Case of the EIR Without A “Project”: Third District Rejects CEQA, Statutory Challenges To DOGGR’s “Unique” S.B. 4-Mandated EIR Analyzing Statewide Fracking/Well Stimulation Impacts