Followers of CEQA reform efforts over the past several years will have observed two general trends: (1) Legislative reform has proven difficult, incremental, and marked by political division and dealmaking; and (2) the Supreme Court has “taken up the slack” by aggressively granting review of and resolving numerous major CEQA issues. In doing so, the high court has brought greater clarity and “common sense” to the jurisprudence defining the parameters and operation of this venerable law – a significant judicial reform effort of which CEQA has been sorely in need. While much remains that could be done to clarify, streamline and modernize CEQA, the Supreme Court’s judicial reform effort continues with seemingly unabated vigor.
Continue Reading Supreme Court is Primary CEQA Reform Engine
CEQA-in-reverse
CEQA-In-Reverse Case Opening Brief Filed In California Supreme Court
By Arthur F. Coon on
Posted in Alternatives, CEQA-in-reverse, Climate Change/GHG, Legislation, Litigation, Mitigation, Reform
The California Building Industry Association (CBIA) laid out its case that CEQA contains no general directive requiring analysis of the existing environment’s impacts on a future project in a 50-page opening brief filed in the California Supreme Court on January 10, 2014. California Building Industry Association v. Bay Area Quality Management District, Supreme Court Case No. S213478. The Supreme Court recently granted review of the case, which involves the CBIA’s challenge to BAAQMD’s 2010 CEQA Thresholds of Significance and implementing guidelines For Toxic Air Contaminants (TACs) and particulate matter (PM2.5), limited solely to the “CEQA-in-reverse” issue. (See “Supreme Court Will Review “CEQA-In-Reverse” Issue in CBIA Case Challenging 2010 BAAQMD Air Quality Guidelines,” by Arthur F. Coon, posted 12/9/13.)
Continue Reading CEQA-In-Reverse Case Opening Brief Filed In California Supreme Court
First District “Doubts” CEQA Operates In Reverse, Upholds Mitigated Negative Declaration For Urban Infill Project Despite Soil and Groundwater Contamination In Parker Shattuck Neighbors
By Arthur F. Coon on
In an opinion recently ordered published, the First District Court of Appeal extensively reviewed the relevant case law and expressed skepticism that CEQA would operate in reverse to require analysis of potential impacts on a mixed-use project’s construction workers and future residents from pre-existing soil contamination at the project site. Yet, while illuminating its tentative views on this important CEQA issue, the Court stopped short of expressly relying on them, and instead upheld the project’s challenged Mitigated Negative Declaration (MND) based on plaintiffs’ failure to identify substantial evidence in the administrative record supporting a fair argument that disturbance of the site’s contaminated soils may have a significant effect on the environment. Parker Shattuck Neighbors, et al, v. Berkeley City Council, et al (CityCentric Investments, LLC, et al, Real Parties in Interest), 222 Cal.App.4th 768, Case No. A136873 (1st Dist., Div. 4 2013), filed 11/7/13; pub. order 12/4/13 (rec’d from court 12/30/13).
Continue Reading First District “Doubts” CEQA Operates In Reverse, Upholds Mitigated Negative Declaration For Urban Infill Project Despite Soil and Groundwater Contamination In Parker Shattuck Neighbors
Supreme Court Will Review “CEQA-In-Reverse” Issue In CBIA Case Challenging 2010 BAAQMD Air Quality Guidelines
By Arthur F. Coon on
On November 26, 2013, the California Supreme Court by unanimous vote granted review of a fundamental legal issue that repeatedly has surfaced in recent years in both published appellate opinions and the legislative debate over CEQA reform: Does CEQA ever operate “in reverse”? That is, is CEQA review confined to an analysis of a proposed project’s impacts on the existing environment, or does it also require analysis of the existing environment’s impacts on the proposed project and its future occupants and users?
The case is CBIA v. BAAQMD (Supreme Court Case No. S213478), a decision in which the First District Court of Appeal rejected the CBIA’s facial challenge to BAAQMD’s 2010 Thresholds of Significance and Guidelines for Toxic Air Contaminants, and at the same time called into question the “continued vitality” of a line of appellate cases holding that the “reverse application” of CEQA is inconsistent with its language and intent. For my analysis of the Court of Appeal’s opinion, which has been vacated by the Supreme Court’s grant of review, see “Adoption of CEQA Thresholds of Significance Is Not A CEQA “Project,” First District Holds In Reinstating BAAQMD’s 2010 Air Quality Guidelines,” by Arthur F. Coon, posted on August 16, 2013.Continue Reading Supreme Court Will Review “CEQA-In-Reverse” Issue In CBIA Case Challenging 2010 BAAQMD Air Quality Guidelines
Are Courts Actively Limiting CEQA’s Scope In The Absence of Meaningful Legislative Reform?
By Arthur F. Coon on
Governor Jerry Brown was recently quoted in a Capitol Alert piece as calling legislative reform of CEQA “the Lord’s work” – hopefully he didn’t mean the quest for the Holy Grail – although he admitted in the same article he hadn’t yet read the latest bills proposing to limit its scope. In the short time since then, SB 317 (the most significant effort at CEQA reform this year) appears to have died in the waning days of this Legislative session. While “hope springs eternal,” meaningful legislative reform of CEQA thus continues to prove elusive.
Continue Reading Are Courts Actively Limiting CEQA’s Scope In The Absence of Meaningful Legislative Reform?
From Baird to Ballona Wetlands: CEQA’s Logical Limits
By Arthur F. Coon on
It’s a common error in logic to suppose that because two things are in spatial or temporal proximity, one must be the cause of the other – a confusion of cause and affect. A line of CEQA cases – beginning with Baird v. County of Contra Costa (1st Dist. 1995) 32 Cal.App.4th 1464, and continuing with the recently published decisions in Ballona Wetlands Land Trust, et al. v. City of Los Angeles (2d Dist., Nov. 9, 2011) 201 Cal.App.4th 455 and South Orange County Wastewater Authority v. City of Dana Point (4th Dist. 2011) 196 Cal.App.4th 1604 – exposes this basic logical error in the CEQA context, and in doing so, clarifies CEQA’s fundamental scope and limits.
The rule can be simply stated: CEQA is concerned with analyzing the impacts of the proposed project on the existing environment and not the impacts of the existing environment on the proposed project. In other words, CEQA requires an analysis of (and mitigation for) significant adverse changes in the existing environment that will be caused by the project, not vice versa. (E.g., Baird, supra, 32 Cal.App.4th at 1468 [“Adverse environmental changes are not contemplated here. The purported contaminations are preexisting (or do not exist at all).”].)
In the seminal Baird case, an addiction treatment facility was approved with a negative declaration for construction in the vicinity of existing sewage and soil contamination of various kinds. Project opponents argued CEQA required the County to prepare an EIR to study the impacts of the existing pollution on the future project residents. The court rejected the argument because “[t]he purpose of CEQA is to protect the environment from proposed projects, not to protect proposed projects from the existing environment”; nothing in the record supported any claim that the project’s construction would in any way expose, worsen or spread the existing environmental contamination.
Continue Reading From Baird to Ballona Wetlands: CEQA’s Logical Limits