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
CEQA Guidelines
Must CEQA Compliance Precede Project Approval? When State Water Board Water Quality Certifications Are Involved, The Answer Is As “Clear as Mud”
“The more I know, the less I understand/All the things I thought I’d figured out, I have to learn again” – Don Henley, “The Heart of the Matter”
One of CEQA’s bedrock principles is that environmental review must precede project approval. (E.g., POET, LLC v. California Air Resources Board (2013) 217 Cal.App.4th 1214; CEQA Guidelines, § 15004(a).) To reverse the order and “put the cart before the horse” would be anathema, i.e., to sanction uninformed and undemocratic lead agency decision making, and to encourage irretrievable commitments of resources and post-hoc rationalizations that foreclose mitigations and alternatives and sweep environmental considerations under the rug. Right? Well … maybe not. In the area of State Water Resources Control Board (“SWRCB” or the “State Board”) water quality certifications (“WQCs”) under the Federal Clean Water Act (“CWA”; 33 U.S.C § 1251 et seq), this bedrock principle appears to have been watered down, and it may be significantly eroding under pressure from a preemptive federal law deadline.Continue Reading Must CEQA Compliance Precede Project Approval? When State Water Board Water Quality Certifications Are Involved, The Answer Is As “Clear as Mud”
Can a Responsible Agency Get A Second Bite At The CEQA Apple? First District Says “Sometimes, Yes,” Upholds Regional Water Board’s Imposition of Additional Mitigation On Flood Control Project Through “Independent” Porter-Cologne Act Authority Exercised Subsequent To Grant Of CWA § 401 Water Quality Certification Based On Lead Agency’s Unchallenged Final EIR
In a published opinion filed December 29, 2020, the First District Court of Appeal affirmed a judgment denying a petition for writ of mandate filed by the Santa Clara Valley Water District (District) challenging waste discharge requirements (WDRs) belatedly imposed by a responsible agency, the San Francisco Bay Regional Water Quality Control Board (Board), on lead agency District’s flood control project. Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199. The case involved highly unique facts, and a number of interesting legal issues concerning the Board’s authority under the Federal Clean Water Act (CWA), the state Porter-Cologne Act, and CEQA.
Continue Reading Can a Responsible Agency Get A Second Bite At The CEQA Apple? First District Says “Sometimes, Yes,” Upholds Regional Water Board’s Imposition of Additional Mitigation On Flood Control Project Through “Independent” Porter-Cologne Act Authority Exercised Subsequent To Grant Of CWA § 401 Water Quality Certification Based On Lead Agency’s Unchallenged Final EIR
Closing the “Golden Door”: California Supreme Court Denies Petitions for Review and Depublication Request in CEQA Administrative Record Case
By Arthur F. Coon on
On November 10, 2020, the California Supreme Court – after briefly raising Petitioners’ hopes by extending the time to consider granting review – finally slammed the door shut on further litigation over a recent Fourth District Court of Appeal decision, issuing an order denying the three petitions for review filed by the parties, as well as a request for depublication filed by non-party City of Los Angeles. Golden Door Properties v. S.C (County of San Diego) Case No. S264324. The Court of Appeal’s Golden Door decision, which held lead agencies must retain and not destroy writings within the scope of CEQA’s mandatory and broadly inclusive administrative record statute (Pub. Resources Code, § 21167.6), notwithstanding assertedly contrary record-retention policies, will thus remain intact as published precedent.
Continue Reading Closing the “Golden Door”: California Supreme Court Denies Petitions for Review and Depublication Request in CEQA Administrative Record Case
Keeping the “Golden Door” Cracked Open: California Supreme Court Extends Period to Consider Review of CEQA Administrative Record Case
By Arthur F. Coon on
On October 23, 2020, the California Supreme Court issued an order extending until December 7, 2020, or the date upon which review is either granted or denied, the time for granting or denying review in Golden Door Properties, LLC, et. al. v. Superior Court (County of San Diego et. al., Real Parties in Interest) (4th Dist. 2020) 52 Cal.App.5th 837. The Court of Appeal’s decision, originally published on July 30, and modified upon denial of rehearing on August 25, 2020, held that a lead agency is required to retain, and may not destroy, writings within the scope of CEQA’s mandatory and broadly-inclusive administrative record statute, Public Resources Code § 21167.6.
Continue Reading Keeping the “Golden Door” Cracked Open: California Supreme Court Extends Period to Consider Review of CEQA Administrative Record Case
Governor Extends Conditional Suspension of Requirements Related to Posting CEQA Notices with County Clerks
By Arthur F. Coon & Arielle Harris on
In late September, Governor Newsom signed Executive Order N-80-20 (“EO 80-20”), which, among other things, extends the protections of a handful of previously issued executive orders related to COVID-19. As relevant to CEQA practitioners, EO 80-20 extends the previous suspension of CEQA’s requirements for filing of specified notices with the county clerk and the posting of such notices in the county clerk’s office.
Continue Reading Governor Extends Conditional Suspension of Requirements Related to Posting CEQA Notices with County Clerks
Legislature Enacts SB 288 to Provide New and Expanded CEQA Exemptions for Sustainable Public Transportation Projects
By Arthur F. Coon on
Senator Scott Weiner’s Senate Bill (SB) 288 has passed both houses of the California Legislature, and was enrolled for proofing on September 4, 2020, prior to its delivery to the Governor for signature. The new law’s prefatory declarations reflect a stated intent to expand and enact CEQA exemptions to reduce the time and cost of delivering transit and sustainable transportation projects in California, and thereby boost the COVID-damaged economy while furthering the State’s environmental goals.
Continue Reading Legislature Enacts SB 288 to Provide New and Expanded CEQA Exemptions for Sustainable Public Transportation Projects
Supreme Court Holds Stanislaus County Well Permit Decisions Under State Standards Are Neither Categorically Ministerial Nor Categorically Discretionary In Nature; Rather, Whether CEQA-Triggering Discretion Exists Must Be Determined On Case-By-Case Basis
By Arthur F. Coon on
On August 27, 2020, the California Supreme Court filed its unanimous opinion, authored by Justice Corrigan, in Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479 (“POWER”). The POWER decision is a “mixed bag” for the parties to the litigation themselves: the Court rejected both (a) the County’s position that all its well permits are ministerial approvals exempt from CEQA, and (b) the environmental plaintiffs’ converse position that all such permits are discretionary approvals subject to CEQA. For non-parties, the case’s significance lies in its elucidation of the legal rules and principles governing the key distinction between discretionary and ministerial projects – a fundamental distinction that determines CEQA’s threshold applicability to agency approvals and actions. In following appellate precedent focusing not on permitting ordinances and regulations as a whole and in the abstract, but more granularly on the specific regulatory controls applicable to a particular permit application, the high Court in POWER eschews the “all or nothing” approach urged by the parties and endorses a more nuanced and contextual analysis that is both reasonable and fully consonant with CEQA and its objectives.
Continue Reading Supreme Court Holds Stanislaus County Well Permit Decisions Under State Standards Are Neither Categorically Ministerial Nor Categorically Discretionary In Nature; Rather, Whether CEQA-Triggering Discretion Exists Must Be Determined On Case-By-Case Basis
Burnishing the “Golden Door”: Fourth District Modifies Recent Opinion Requiring Lead Agency Preservation of CEQA Administrative Record Documents, Denies Petitions for Rehearing and Leaves Judgment Unchanged
By Arthur F. Coon on
In a detailed 6-page order, issued by Presiding Justice McConnell and filed on August 25, 2020, the Fourth District Court of Appeal denied three petitions for rehearing, and “polished up” its lengthy published opinion filed at the end of last month in Golden Door Properties, LLC et al v. Superior Court of San Diego (County of San Diego, et al, Real Parties in Interest) (4th Dist. 2010) 52 Cal.App.5th 837. (My August 5, 2020 post on the case can be found here.) Most of the Court’s changes were minor and technical in nature, pertaining more to issues of concern to the parties on remand, rather than its major precedential holdings, but a few were noteworthy.
Continue Reading Burnishing the “Golden Door”: Fourth District Modifies Recent Opinion Requiring Lead Agency Preservation of CEQA Administrative Record Documents, Denies Petitions for Rehearing and Leaves Judgment Unchanged
“For the Record”: Fourth District Holds CEQA’s “Mandatory” And “Broadly Inclusive” Administrative Record Statute Requires Lead Agency To Retain Documents Within Its Scope And Not Destroy Them Prior To Record Preparation
By Arthur F. Coon on
In a 77-page published opinion filed on July 30, 2020, the Fourth District Court of Appeal (Div. One) issued a writ of mandate largely overturning San Diego Superior Court rulings denying plaintiffs’ motions to compel discovery and to augment the administrative record in a CEQA case; the disputes arose from Real Party San Diego County’s admitted deletion of email documents as “non-official records” pursuant to its records retention policies. Golden Door Properties, LLC et al. v. Superior Court of San Diego (County of San Diego, et al., Real Parties in Interest) (4th Dist. 2020) 52 Cal.App.5th 837.
Continue Reading “For the Record”: Fourth District Holds CEQA’s “Mandatory” And “Broadly Inclusive” Administrative Record Statute Requires Lead Agency To Retain Documents Within Its Scope And Not Destroy Them Prior To Record Preparation