On April 20, 2022, the Bay Area Air Quality Management District (“BAAQMD”) adopted updated CEQA thresholds of significance that it recommends for public agencies’ use in evaluating the impacts of land use projects and plans on climate change.  The thresholds and substantial evidence supporting them are contained in a “Justification Report” that can be reviewed on BAAQMD’s website here.

Continue Reading BAAQMD Adopts “Fair Share” Based CEQA Thresholds of Significance For Evaluating Climate Change Impacts of Land Use Projects And Plans

In a sprawling, 123-page published opinion filed on February 14, 2022, the Third District Court of Appeal affirmed in part, and reversed in part, judgments in consolidated CEQA actions challenging Placer County’s EIR for its approval of a specific plan and rezoning to permit residential and commercial development and preserve forest land in the Martis Valley near Truckee and Lake Tahoe.  League to Save Lake Tahoe, Mountain Area Preservation, et al./California Clean Energy Committee v. County of Placer, et al. (Sierra Pacific Industries, et al., Real Parties in Interest) (2022) ___ Cal.App.5th __________.  Consistent with its impressive length, the opinion decides a number of significant issues, and contains a thorough exposition of established CEQA rules and principles, including, but not limited to, those governing:  applicable standards of review; baseline/environmental setting description; lead agency discretion regarding thresholds of significance, methodology for impact study, and significance determinations; cumulative impacts (including GHG) analysis; and requirements for adequate mitigation measures.

Continue Reading Third District Addresses Significant CEQA Issues In Mixed Decision On Placer County’s EIR For Specific Plan/Rezoning Allowing Development of Martis Valley Timberlands

In an opinion filed on December 29, 2021, and later ordered published on January 25, 2022, the First District Court of Appeal (Div. 4) affirmed a judgment upholding the City of Newark’s (City) use of Government Code § 65457’s CEQA exemption for a 469-lot residential subdivision on land adjacent to San Francisco Bay.  Plaintiffs unsuccessfully challenged the City’s 2019 subdivision map approval based on the claim that a subsequent EIR was required due to changes in the project and circumstances allegedly showing it would have new significant impacts on the endangered salt marsh harvest mouse (“harvest mouse”) and its wetlands habitat.  Citizens’ Committee to Complete the Refuge, et al. v. City of Newark et al., (SI XVII, LLC, et al, Real Parties in Interest) (2021) 74 Cal.App.5th 460.

Continue Reading First District Affirms Judgment Upholding Statutory CEQA Exemption For Housing Project Consistent With EIR-Reviewed Specific Plan, Rejects Claims That Changes In Project Or Circumstances Required Subsequent EIR

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) 70 Cal.App.5th 51.  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

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.)

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

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):

Continue Reading A Decade of CEQA Developments

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.)

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

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

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.

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