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The California Supreme Court held a lively oral argument session this morning (May 4, 2016), at 9:00 a.m. in its San Francisco courtroom in the case of Friends of the College of San Mateo Gardens v. San Mateo Community College District (Case No. S214061), which was live streamed for “real time” viewing on the Court’s website.  This post attempts to convey a general sense of the Court’s questioning and counsel’s argument in the hour-long session; any mistakes in “translation” are mine, and I apologize for any such errors in advance.  (For my prior post briefly describing the case’s facts, legal issues and significance, see “Supreme Court Set to Hear Important CEQA Subsequent Review Case,” by Arthur F. Coon, posted April 26, 2016.)
Continue Reading “Hot Bench” For Advocates In Supreme Court CEQA Subsequent Review Case

On May 4, 2016, at 9 a.m. in its San Francisco courtroom, the California Supreme Court will hear oral arguments in yet another of the many significant CEQA cases it has tackled in recent years, this one presenting critically important issues involving the application of CEQA’s “subsequent review” rules.  The case – Friends of the College of San Mateo Gardens v. San Mateo Community College District (Case No. S214061) – raises issues regarding the appropriate standard of judicial review and degree of deference CEQA requires to be accorded to a lead agency’s environmental determinations when it approves changes to an already approved project that underwent full (and presumptively adequate) CEQA review in its original form.
Continue Reading Supreme Court Set To Hear Important CEQA Subsequent Review Case

A new year often brings fresh perspective.  With 2016 still in its infancy, it is natural to reflect back on what has been and also to contemplate what is yet to come.  The California Supreme Court’s recent CEQA decisions, and its current docket of CEQA cases awaiting decision, provide ample opportunity for both of these basic human impulses.
Continue Reading Supreme Engagement: CEQA’s Continuing Saga In California’s High Court

On November 30, 2015, following a grant and retransfer from the California Supreme Court and reconsideration in light of City of San Diego v. Board of Trustees of California State University (2015) 61 Cal.4th 945, the First District Court of Appeal (Division 3) reissued in slightly modified form its decision in City of Hayward v. Board of Trustees of the California State University (1st Dist., Div. 3 2015) 242 Cal.App.4th 833. The partially published opinion reaches essentially the same result, with the same reasoning, as did the Court of Appeal’s initial opinion, which was certified for publication on June 26, 2012. For the case’s facts, procedural history, holdings, and (in my view) most significant analyses, the reader should consult my prior post. (See, “First District Reaffirms CEQA Is Concerned With Physical Impacts On The Environment, Not Economic Ones On Government Services,” by Arthur F. Coon, posted on July 12, 2012.) 
Continue Reading First District Reissues Slightly Modified Opinion on Retransfer From Supreme Court Rejecting Most CEQA Challenges to Cal State East Bay Campus Expansion EIR

In a 5-2 decision filed November 30, 2015, the California Supreme Court reversed the judgment of the Court of Appeal which had upheld the EIS/EIR for the controversial Newhall Ranch development project. Center For Biological Diversity, et al. v. California Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (2015) 62 Cal.4th 204. The high court approved the EIS/EIR’s methodology analyzing the significance of the project’s greenhouse gas (GHG) emissions in terms of reductions from projected “business as usual” (BAU) emissions consistent with AB 32’s statewide reductions mandate, rather than against some absolute numeric limit above the project site’s “baseline” emissions. However, it held the GHG analysis lacked supporting substantial evidence and a cogent explanation correlating the project-specific reductions to AB 32’s mandated state-wide reductions so as to demonstrate consistency with the latter’s goals under the approved methodology. The Court further held the EIS/EIR violated Fish & Game Code § 5515’s prohibition on the taking of “fully protected” fish species by including mitigation measures providing for the collection and relocation by USFWS of the unarmored threespine stickleback. Finally, the Court held – under the particular factual circumstances of the case – that certain issues raised by plaintiffs during an optional public comment period on the Final EIS/EIR were timely raised so as to sufficiently exhaust administrative remedies under Public Resources Code § 21177(a).
Continue Reading Lost in Translation: Supreme Court Elucidates CEQA GHG Analysis, “Fully Protected” Species Take Prohibition, And Issue Exhaustion In Decision Finding Newhall Ranch Development EIR Flawed

The First District Court of Appeal held the California State Lands Commission’s (“CSLC”) EIR for a project involving the lease of sovereign lands beneath San Francisco Bay for private dredge mining of sand complied with CEQA; however, it partially reversed the trial court’s judgment denying a writ because the record failed to demonstrate CSLC’s compliance with the public trust doctrine. San Francisco Baykeeper, Inc. v. California State Lands Commission (Hanson Marine Operations, Inc., et al., Real Parties In Interest) (1st Dist., Div. 4, 2015) 242 Cal.App.4th 202, filed 11/18/15.
Continue Reading State Lands Commission’s CEQA Review of SF Bay/Delta Sand Mining Project Approval Is Adequate, But Fails to Fulfill Obligation to Consider Public Trust Doctrine

In an opinion filed September 10, and later ordered partially published on October 9, 2015, the Court of Appeal affirmed the substance of a judgment upholding an EIR for a regional shopping center renovation project in Carlsbad, California, reversing only with respect to certain cost award issues treated in an unpublished portion of the opinion. North County Advocates v. City of Carlsbad (Plaza Camino Real, LP, et al., Real Parties in Interest) (4th Dist., Div. 1, 2015) 241 Cal.App.4th 94. The published portions of the opinion address the case’s facts, applicable CEQA rules and standards of review, and traffic baseline issues; the unpublished portions address issues concerning traffic mitigation measures, the adequacy of the City of Carlsbad’s (“City”) responses to comments, and the propriety of the various aspects of the trial court’s record preparation cost awards that were made to the City and real parties (“Westfield”) as prevailing parties.
Continue Reading Fourth District Addresses CEQA Baseline Issues In Partially Published Opinion Upholding EIR For Carlsbad Shopping Mall Renovation

On September 18, 2015, I posted a “Part I” piece on the “efficiency improvements” category of OPR’s Preliminary Discussion Draft of its “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). That post can be found here. This follow up post (Part II) covers OPR’s most significant proposals contained in the Discussion Draft’s remaining two categories, i.e., its two proposed “Substance” improvements and its first three proposed “Technical” improvements, but excludes the remaining dozen proposals that OPR classifies as only “minor technical improvements.”
Continue Reading Proposed CEQA Guidelines Amendments: A Critique of OPR’s “Preliminary Discussion Draft” (Part II – Proposed “Substance” and Major “Technical Improvements”)

On August 11, 2015, the Governor’s Office of Planning and Research (OPR) released a 145-page “Preliminary Discussion Draft” of “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). The Discussion Draft “contains [OPR’s] initial thoughts on possible amendments to the CEQA Guidelines” and proposes revisions to nearly thirty (30) sections that OPR classifies into three categories: (1) efficiency improvements; (2) substance improvements; and (3) technical improvements. If ultimately adopted in some form, the Discussion Draft’s proposals would constitute the most comprehensive update to the Guidelines since the late 1990s. The Discussion Draft’s Executive Summary describes it as “a balanced package that is intended to make the [CEQA] process easier and quicker to implement, and better protect natural and fiscal resources consistent with other state environmental policies.”
Continue Reading Proposed CEQA Guidelines Amendments: A Critique Of OPR’s “Preliminary Discussion Draft” (Part I – Proposed “Efficiency Improvements”)

In a published opinion filed September 2, 2015, the Fourth District Court of Appeal (Division 2) reversed the trial court’s judgment denying a writ petition challenging a school district’s determination that its closure of two schools and related student transfers were exempt from CEQA. Save Our Schools v. Barstow Unified School District Board of Education (2015) 240 Cal.App.4th 128. In directing on remand the issuance of a writ that would, at a minimum, mandate that the District void its exemption determination and reconsider the matter, the Court also held that the District could in further proceedings consider additional evidence not before it at the time it made its initial exemption decision, and that any challengers would have the opportunity to present additional evidence as well.
Continue Reading Back To The Chalk Board: School District’s Math Fails To Justify CEQA Categorical Exemption For School Closures