In a 53-page published opinion filed October 8, 2021, the Fourth District Court of Appeal mostly affirmed, but reversed in part, a judgment in a CEQA action challenging two sets of projects of the City of San Diego to underground overhead utility wires in several neighborhoods. McCann v. City of San Diego (2021) ___ Cal.App.5th ___. The opinion addressed and resolved a number of significant and interesting CEQA claims and issues involving the exhaustion doctrine; procedures for administratively appealing CEQA exemption determinations (and related due process notice issues); piecemealing; project description; aesthetics; and proper methodology for determining the significance of GHG emissions impacts through assessing a project’s consistency with a local Climate Action Plan (CAP).
Continue Reading Fourth District Addresses Numerous Significant CEQA Issues In Action Challenging City of San Diego’s Utility Undergrounding Projects
Climate Change/GHG
Let’s Get Regional: Third District Holds Olympic Valley Resort Project EIR’s Environmental Setting Description and Analysis Violated CEQA’s Requirement To Place Special Emphasis On Unique Regional Environmental Resources By Failing To Sufficiently Consider Lake Tahoe
By Arthur F. Coon on
In an opinion filed on August 24, and certified for partial publication on September 22, 2021, the Third District Court of Appeal reversed a judgment upholding Placer County’s EIR for a 94-acre resort development project in the Olympic (formerly Squaw) Valley area – site of the 1960 Winter Olympics near the iconic Lake Tahoe. Sierra Watch v. County of Placer (Squaw Valley Real Estate, LLC, Real Party in Interest) (2021) 69 Cal.App.5th 1. The published portions of the 51-page opinion found faults in the EIR’s description of the environmental setting and related water and air quality impact analyses, and errors in its analysis and mitigation of construction noise impacts. Nearly half of the opinion remained unpublished; those portions of it (1) upheld the EIR’s climate change analysis (rejecting appellant Sierra Watch’s arguments challenging it as meritless, moot, or forfeited), (2) upheld most of the EIR’s wildfire impacts analysis (finding merit in one of appellant’s eight arguments, relating to underestimation of evacuation times), and (3) held the EIR’s traffic impacts analysis improperly relied on deferred mitigation. (The unpublished portions of the opinion will not be discussed further in this post.)
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Continue Reading Let’s Get Regional: Third District Holds Olympic Valley Resort Project EIR’s Environmental Setting Description and Analysis Violated CEQA’s Requirement To Place Special Emphasis On Unique Regional Environmental Resources By Failing To Sufficiently Consider Lake Tahoe
A Decade of CEQA Developments
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):
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Continue Reading A Decade of CEQA Developments
CEQA Urgency Legislation Reenacts Modified Version of Environmental Leadership Act, Adds Certain Housing Development Projects As Eligible For Governor Certification And Streamlining Benefits
By Arthur F. Coon on
On May 20, 2021, Governor Newsom signed into law Senate Bill No. 7, the “Jobs and Economic Improvement Through Environmental Leadership Act of 20216” (the “Act”), which repealed and added Chapter 6.5 to Division 13 of the Public Resources Code (sections 21178 through 21189.3). The new Act, which was immediately effective as an “urgency” statute, essentially modifies and reenacts former 2011 legislation that was repealed by its own terms on January 1, 2021. Like the former leadership act, the new legislation authorizes the Governor, until January 1, 2024, to certify certain “environmental leadership development projects” (“leadership projects”) that meet specified requirements for streamlining benefits related to CEQA. (Pub. Resources Code, §§ 21180, 21181.) To qualify for CEQA streamlining benefits under the new Act, the Governor must certify a project as a leadership project before January 1, 2024. (§ 21181.)
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Continue Reading CEQA Urgency Legislation Reenacts Modified Version of Environmental Leadership Act, Adds Certain Housing Development Projects As Eligible For Governor Certification And Streamlining Benefits
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.
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Continue Reading Legislature Enacts SB 288 to Provide New and Expanded CEQA Exemptions for Sustainable Public Transportation Projects
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 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.
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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
Spring CEQA Roundup – 2020
By Arthur F. Coon on
Time for some “spring cleaning” updates on several notable CEQA-related matters.
Third District Affirms Judgment Rejecting CEQA Challenges To EIR For Cordova Hills Master Planned Community Project
In an opinion filed January 30, and later ordered published on March 2, 2020, the Third District Court of Appeal affirmed a judgment denying a writ petition filed by plaintiffs Environmental Council of Sacramento and the Sierra Club challenging the EIR for Cordova Hills, a large master planned community project approved by Sacramento County. Environmental Council of Sacramento v. County of Sacramento (Cordova Hills, LLC, et. al., Real Parties in Interest) (3d Dist. 2020) 45 Cal.App.5th 1020.
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Continue Reading Third District Affirms Judgment Rejecting CEQA Challenges To EIR For Cordova Hills Master Planned Community Project
“ROG Won: A CEQA Wars Story” – Third District Holds Geothermal Energy Project EIR’s Rejection Of Proposed Mitigation Measures For Significant ROG Fugitive Emissions Impact Violated CEQA Where No Substantial Evidence Showed Measures’ Infeasibility
In an opinion filed November 26, and ordered published on December 23, 2019, the Third District Court of Appeal partially reversed a judgment rejecting a labor union’s CEQA challenges to the EIS/EIR for a geothermal power plant project on federal land in Mono County. Russel Covington, et al v. Great Basin Unified Air Pollution Control District, et al. (Orin 50 LLC, et al, Real Parties in Interest) (2019) 43 Cal.App.5th 867.
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Continue Reading “ROG Won: A CEQA Wars Story” – Third District Holds Geothermal Energy Project EIR’s Rejection Of Proposed Mitigation Measures For Significant ROG Fugitive Emissions Impact Violated CEQA Where No Substantial Evidence Showed Measures’ Infeasibility
Out With The Old (And In With The New … Next Year)! – Third District Rejects CEQA And General Plan Consistency Challenges to Sacramento’s 2035 General Plan Update And Related EIR, Holds Traffic Analysis Challenge Based On Lowering of Acceptable LOS Is Mooted By Public Resources Code § 20199, But New VMT Standard Doesn’t Yet Apply
By Arthur F. Coon on
The City of Sacramento received an early Christmas present with the December 18 publication of the Third District Court of Appeal’s opinion in Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609, which was originally filed on November 26, 2019. The decision affirmed a trial court judgment upholding the City’s 2035 General Plan against the plaintiff group’s Planning and Zoning Law and CEQA challenges. The opinion’s most significant CEQA holding was that plaintiff’s challenge to the EIR’s transportation impacts analysis was moot because the applicable law currently in effect at the time of judgment in the appellate court – specifically, Public Resources Code § 20199(b)(2) (enacted as part of SB 743) – provides that auto delays measured by LOS or similar measures shall not be considered significant environmental impacts. The Court of Appeal also rejected all of plaintiff’s other CEQA challenges, including those to the City’s non-adoption of the no-project alternative, its decision not to recirculate the EIR after adding numerous supplemental changes to the draft 2035 General Plan, and its Final EIR’s GHG and cyclist safety analyses.
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Continue Reading Out With The Old (And In With The New … Next Year)! – Third District Rejects CEQA And General Plan Consistency Challenges to Sacramento’s 2035 General Plan Update And Related EIR, Holds Traffic Analysis Challenge Based On Lowering of Acceptable LOS Is Mooted By Public Resources Code § 20199, But New VMT Standard Doesn’t Yet Apply