Climate Change/GHG

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The 2021-2022 Legislative Session was light on CEQA amendments, and once again did not produce any significant reform.  We saw a continued focus on incentivizing affordable and infill developments on the condition that the project pay prevailing wages (AB 2011), reducing barriers for specified sustainable transit projects (SB 922), and amendments akin to “pet project exemptions” that are targeted to solving a narrower set of concerns (SB 118 and SB 886).  None of the amendments, however, more broadly limit CEQA’s reach.…

Continue Reading Recap of 2023 CEQA Amendments Now In Effect

In an opinion on rehearing filed January 18, 2023, the Third District Court of Appeal reissued its previous published opinion in the Save Our Capitol! case (my January 2, 2023 post on which can be found here) with the addition of a few pages of discussion addressing “Relief” inserted at the end of the majority opinion just before its “Disposition.” …

Continue Reading Third District Adds Brief CEQA Severance Analysis After Rehearing In Save Our Capitol! Case, Limits Its Relief To Allow Capitol Annex Demolition To Go Forward

A 10-page article by Holland & Knight’s Jennifer Hernandez, published this month by the Center for Jobs & the Economy/California Business Roundtable, documents that CEQA litigation targeted nearly 50,000 housing units – approximately half the state’s total annual housing production – in 2020 alone.  While Holland & Knight’s analysis of 2019-2021 CEQA lawsuit data is ongoing, the article’s “interim report”, which can be read here, states there is no expectation of change in the magnitude of anti-housing CEQA actions, which most frequently allege violations relating to analysis of climate change related impacts, i.e., GHGs and VMT.
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Continue Reading CEQA vs. Housing: A Very Wrong Picture

On May 12, the Third District Court of Appeal belatedly ordered partially published an opinion it had filed on April 20, 2022, reversing the trial court’s judgment upholding the EIR for lead agency Siskiyou County’s approval of Crystal Geyser Water Company’s water bottling plant project.  We Advocate Through Environmental Review, et al. v. County of Siskiyou, et al. (Crystal Geyser Water Company, Real Party in Interest) (2022) ____ Cal.App.5th ______.  The decision followed close on the heels of the Court’s earlier decision in a related CEQA case brought by the same plaintiff and involving the same project in which it held that the City of Mount Shasta, acting as a responsible agency issuing a wastewater permit for the project, had violated CEQA by failing to make the required Public Resources Code § 21081 findings regarding potentially significant effects identified in the EIR.  (My May 16, 2022 post on that earlier case can be found here.)
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Continue Reading The Other CEQA Shoe Drops: Third District Reverses Judgment Upholding Siskiyou County’s EIR For Crystal Geyser Bottling Plant Project, Holds (1) Project Objectives Were Too Narrowly Stated And (2) County Should Have Recirculated EIR’s Climate Discussion To Allow Comment On Substantially Higher GHG Emissions Estimate First Disclosed In FEIR

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.
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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) 75 Cal.App.5th 63.  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.
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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.
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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).
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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.)
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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

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