Most real estate developers would likely agree that, even when correctly applied and complied with, CEQA can be an onerous law which can significantly complicate, delay, increase the cost of, and in some cases (particularly where CEQA litigation is involved) even preclude projects. But what recourse does a project applicant have under the law when CEQA is misapplied – and blatantly so – by a local agency which denies approval of a project that is clearly exempt from CEQA on the meritless basis that extensive (and expensive) CEQA review is required? When the developer’s only recourse is time-consuming and expensive litigation to obtain a writ of mandate setting aside the agency’s illegal action subjecting the project to CEQA, can the developer who succeeds in obtaining the writ recover from the public agency compensation and damages resulting from the temporary “taking” of all reasonable economic use of its property?
In an opinion filed December 27, 2018, and later ordered published on January 15, 2019, the Fourth District Court of Appeal (Div. 1) affirmed the trial court’s judgment rejecting CEQA and other challenges to the City of San Diego’s (City) approval of an amended and restated lease of City-owned land containing an oceanfront amusement park in its Mission Beach neighborhood (Belmont Park), which restated lease potentially extends the prior lease term for a significant period. San Diegans For Open Government v. City of San Diego (Symphony Asset Pool XVI, LLC, Real Party in Interest) (2019) ___ Cal.App.5th ___.
The Federal Energy Regulatory Commission (“FERC”) issues licenses needed to construct and operate hydroelectric dams pursuant to the Federal Power Act (“FPA”; 16 U.S.C. § 791a, et seq). Under long-standing law, and with the limited exception of state-issued water quality certifications, the FPA “occupies the field” of licensing a hydroelectric dam, and bars environmental review of the federal licensing procedure in state courts; this preemption is necessary because recognizing a “dual final authority” for such projects would be “unworkable.” (First Iowa Hydro-Electric Cooperative v. Federal Power Com. (1946) 328 U.S. 152.) States have limited authority under the Clean Water Act (33 U.S.C. § 1341) to impose stricter water quality conditions than are federally required on a FERC license, through the section 401 water quality certification process, but must act on a project applicant’s certification request within one year or certification is deemed waived. (33 U.S.C. § 401(a)(1); Alcoa Power Generating Inc. v. FERC (D.C. Cir. 2011) 643 F.3d 963, 972.) Further, any disputes concerning the Federal licensing process or the adequacy of “required studies” for that process (including “environmental studies” serving as the predicate for the state’s water quality certification conditions) are subject to FERC’s review. (18 C.F.R. part 4, 34(i)(b)(vii) (2003).)
In a published opinion filed September 18, 2018, the Fourth District Court of Appeal (Div. 1) affirmed a judgment granting a writ setting aside the City of San Diego’s (City) decision to subject a coastal development permit (CDP) application for construction of a single family home on a vacant La Jolla lot to CEQA review. Francis A. Bottini, Jr. v. City of San Diego (2018) 27 Cal.App.5th 281.
Continue Reading Fourth District Holds City Violated CEQA By Refusing To Recognize Exemption For Single Family Residence Project And Attempting To Subject Owner’s Already Authorized And Completed Demolition Action To Retroactive Environmental Review (Yet Absolves City From Liability For Regulatory Taking)
In a lengthy published opinion filed on August 22, 2018, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment rejecting various CEQA challenges to the City of San Francisco’s (“City”) Program EIR analyzing the environmental impacts of its 2009 General Plan Housing Element, which it adopted on June 29, 2011. San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596. San Franciscans for Livable Neighborhoods (“SFLN”), an unincorporated association comprised of more than a dozen neighborhood organizations, had challenged the EIR – mostly unsuccessfully – in the trial court. It then appealed from adverse portions of the judgment concerning the EIR’s baseline and impact analyses for traffic, water supply, land use, and visual resources impacts; the City’s decision not to recirculate the EIR; the EIR’s alternatives analysis; and the feasibility of certain proposed mitigation measures.
In a published opinion filed June 13, 2018, the Second District Court of Appeal (Div. 4) affirmed a judgment denying a writ of mandate and declaratory relief in an action challenging the California State Lands Commission’s (“Commission”) determination that CEQA Guidelines § 15301’s categorical exemption for “existing facilities” applied to its renewal of PG&E’s leases of state-owned lands needed to operate the Diablo Canyon nuclear power plant until federal licensures expire in 2025. World Business Academy v. California State Lands Commission (Pacific Gas & Electric Company, Real Party in Interest) (2018) 24 Cal.App.5th 476. The Court rejected petitioner/appellant World Business Academy’s arguments that the consolidated lease replacement, which maintains the status quo at the plant until 2025, did not fall within the exemption, or was subject to the “unusual circumstances” exception, and also rejected arguments that it violated the public trust doctrine.
Continue Reading Second District Holds CEQA’s Existing Facilities Categorical Exemption Applies To State Lands Commission/PG&E Lease Extension For Operation Of California’s Last Active Nuclear Power Plant Until 2025 Closure
In an opinion filed March 20, and later certified for publication on April 12, 2018, the First District Court of Appeal (Division 3) affirmed a limited peremptory writ of mandate issued by the Contra Costa County Superior Court requiring the County to set aside an EIR and land use permit for Phillips 66 Company’s “Propane Recovery Project” at its oil refinery in the City of Rodeo, pending County’s correction of specified inadequacies in the EIR’s air quality analysis. Rodeo Citizens Association v. County of Contra Costa (Phillips 66 Company, Real Party in Interest) (2018) 22 Cal.App.5th 214. Unsatisfied with the trial court’s grant of limited relief and denial of its additional CEQA challenges to the EIR (based on an allegedly defective project description and deficient GHG and hazard analyses), plaintiff/appellant Rodeo Citizens Association (“RCA”) appealed as to those issues, but the Court of Appeal rejected its arguments and affirmed the writ as issued by the trial court.
In a published opinion filed January 31, 2018, the Fifth District Court of Appeal affirmed the trial Court’s judgment issuing a writ of mandate voiding the California State Air Resources Board’s (“CARB”) 2014 amendments to its 2008 Truck and Bus Regulation and its related environmental review documents, which were the functional equivalent of a negative declaration under CARB’s certified regulatory program. John R. Lawson Rock & Oil, Inc. v. State Air Resources Board (2018) 20 Cal.App.5th 77. The 2008 regulations required retrofitting and upgrading of large diesel vehicles to the equivalent of 2010 or newer model engines to reduce emissions of diesel particulate matter (PM), nitrogen oxides (NOx), and greenhouse gases (GHGs).
As another year draws near its close, a number of notable recent CEQA developments in both the legislative and regulatory arenas have occurred that bear mention. Below are some highlights of new CEQA legislation that will be in effect in the new year, as well as significant regulatory changes in process.
In a lengthy, partially published opinion filed November 21, 2017, the Fifth District Court of Appeal addressed four CEQA challenges asserted by plaintiffs and appellants (“AIR”) to the sufficiency of Kern County’s 2014 Final EIR for Real Parties’ (“Alon Energy”) project to modify an existing Bakersfield oil refinery. Association of Irritated Residents v. Kern County Board of Supervisors, et al. (Alon USA Energy, Inc., et al., Real Parties in Interest) (2017) 17 Cal.App.5th 708. The proposed modification would allow the refinery, which has existed and operated at the site through various ownerships since 1932, to unload two unit trains (104 cars) of crude oil (150,000 barrels) per day. The trains would carry potentially more volatile crude oil (i.e., likely to explode in a rail accident) transported from the Bakken formation in North Dakota. The refinery would process 70,000 barrels of crude oil per day, its currently authorized maximum level, and pipe the balance of the unloaded crude to other refineries to be processed.
Continue Reading Fifth District Holds Cap-And-Trade Program Compliance Supports Refinery Project EIR’s Conclusion That GHG Emissions Are Less Than Significant, Also Addresses Important CEQA Baseline and Railroad Operation Preemption Issues