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The Governor’s Office of Planning and Research (OPR) will undertake a comprehensive review of the CEQA Guidelines (14 Cal.Code Regs., §15000 et seq) this year and is currently soliciting public input – to be provided not later than COB on February 14, 2014 – on specific possible topics it has developed as a result of stakeholder suggestions and published on its website.  OPR’s 7-page document, dated December 30, 2013, and entitled “Possible Topics to be Addressed in the 2014 CEQA Guidelines Update,” can be found at http://www.opr.ca.gov/docs/PossibleTopics2014CEQAGuidelinesUpdate.pdf.
Continue Reading OPR To Review Specific CEQA Guidelines Topics Proposed For 2014 Update, Solicits Public Input

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

Plaintiff Save the Plastic Bag Coalition (Coalition) lost a third consecutive published appellate decision in its litigation campaign to require EIRs for virtually all local ordinances that ban or restrict the use of single-use plastic bags in favor of alternatives deemed environmentally superior.  The First District Court of Appeal’s opinion in Save the Plastic Bag Coalition v. City and County of San Francisco (1st Dist., Div. 2, 2014) 222 Cal.App.4th 863, Case No. A137056, which was filed December 10, 2013, and later ordered published on January 3, 2014, extended the existing CEQA precedents to a local ordinance covering a significantly larger urban area – San Francisco – while showing little tolerance for the Coalition’s contrary arguments.
Continue Reading “Bag It!” – Third Published CEQA “Bag Ban” Decision Upholds San Francisco’s Ordinance as Categorically Exempt While Slamming Plaintiff’s Arguments

My October 31 presentation with David Ivester for the Bay Planning Coalition on recent CEQA developments brought home the fact that while there has been only partial and incremental legislative reform (in the form of SB 743), the appellate Courts have remained very active, publishing roughly 30 decisions over the past year.  I concur with David that legislative reform in 2014 (an election year) is unlikely, so it appears we will have to continue to look to the judiciary as the principal agent for change – for better or for worse.  David’s opening anecdote about his conversation with an intelligent, non-lawyer friend underscoring the need for CEQA reform was compelling –  something just seems wrong if, after a legion of environmental professionals (including agency staff, planners, environmental consultants, and legal counsel) has thoroughly vetted a development project and its environmental review, it still stands only a 50% chance of prevailing if challenged in Court.
Continue Reading “The Year in CEQA: A Look Back”

As we move past summer, into fall, the “back-to-school,” and football seasons, and toward daylight savings time – and a possible shutdown of the federal government – it is time to reflect and take stock of the really important things . . . like recent CEQA developments of interest:

  • SB 743 signed by Governor Brown.

On September 27, 2013, and as expected, Governor Brown signed into law SB 743, the year’s only significant, albeit incremental, “CEQA reform” measure.  For a summary of SB 743’s substantive content – as well as what the new law doesn’t do – see “CEQA, Sausages, And The Art of The Possible:  A Closer Look at SB 743’s General CEQA Reform Provisions” by Arthur F. Coon and Matthew C. Henderson, posted on September 16, 2013.Continue Reading Recent CEQA Developments In The Legislature And Courts

In a partially published opinion filed August 19, 2013, the Third District Court of Appeal reversed a judgment denying a writ petition challenging a Wal-MartSupercenterthat would replace an existing Wal-Mart store.  Friends of Oroville v. City of Oroville (8/19/13) 219 Cal.App.4th 832, No. C070448.  In the published portion of its opinion, the Court held the City’s EIR inadequately analyzed the project’s GHG emissions because substantial evidence did not support its finding that such emissions would be less than significant after mitigation.
Continue Reading Third District Holds CEQA Analysis of GHG Emissions Was Inadequately Quantified To Support EIR’s Mitigation Conclusion in Friends of Oroville

In a published opinion filed August 13, 2013, the First District Court of Appeal, Division Five, reversed a trial court judgment that had invalidated the Bay Area Quality Management District’s (BAAQMD) adoption of 2010 “CEQA Air Quality Guidelines” because BAAQMD did not conduct CEQA review of their potential environmental impacts.  (California Building Industry Association v. Bay Area Air Quality Management District (1st Dist., Div. 5, 2013) ___ Cal.App.4th ___, 2013 WL 4083221.)  In reinstating the 2010 Guidelines, which set forth new thresholds of significance for GHGs, toxic air contaminants (TACs), and PM2.5 (particulate matter 2.5 microns or less in diameter), the Court of Appeal held that a public agency’s promulgation of thresholds of significance pursuant to the procedures of the CEQA Guidelines is not itself a “project” subject to CEQA review.  In so holding, and in rejecting the other arguments offered by plaintiff California Building Industry Association (CBIA) in support of the judgment, the Court touched on several significant CEQA issues, and in the process overturned a substantial CCP §1021.5 attorneys’ fee award to CBIA since it was no longer a successful party.
Continue Reading Adoption of CEQA Thresholds of Significance Is Not A CEQA “Project,” First District Holds In Reinstating BAAQMD’s 2010 Air Quality Guidelines

In a mostly-published 95-page opinion filed July 15, 2013, the Fifth District Court of Appeal reversed a trial court’s judgment and directed issuance of a writ of mandate setting aside Resolution 09-31 and two executive orders of the California Air Resource Board (CARB) approving Low Carbon Fuel Standards (LCFS) regulations promulgated to reduce greenhouse gas (GHG) emissions.  (Poet, LLC, et al. v. California Air Resources Board, et al (5th Dist. 7/15/13) 217 Cal.App.4th 1214, as modified on denial of rehearing at 218 Cal.App.4th 681, No. F064045.)  However, despite its finding that CARB’s actions “ran afoul of several procedural requirements imposed by CEQA and the APA” and that “these procedural violations are not trivial,” the Court tailored its remedy to protect the public interest by “allow[ing] the LCFS regulations to remain operative while [C]ARB complies with the procedural requirements it failed to satisfy.”  It stated:  “In other words, we will avoid the irony of violations of an environmental protection statute being used to set aside a regulation that restricts the release of pollutants into the environment.”
Continue Reading CARB Violated CEQA In Adopting GHG Regulations, But Fifth District Holds Regulations May Remain Operative Pending Compliance

In a recently published opinion construing Government Code § 65457’s exemption from environmental review for a residential development consistent with a specific plan for which an EIR was previously certified, the First District Court of Appeal affirmed a judgment rejecting a challenge to the City of Dublin’s use of the exemption to approve AvalonBay Communities, Inc.’s (“AvalonBay”) 7.2-acre development within the larger Dublin Transit Village Center.  Concerned Dublin Citizens, et al. v. City of Dublin, et al. (2013 1st Dist., Div. 3) 214 Cal.App.4th1301.
Continue Reading Residential Project Exempt From CEQA Review Under Government Code Section 65457 As Consistent With Specific Plan For Which Program EIR Previously Certified; First District Also Holds New GHG Thresholds Do Not Constitute “New Information” Requiring Supplemental EIR For Specific Plan

What originated as legislation to expedite anticipated CEQA challenges to the proposed Farmers Field football stadium project in Los Angeles (SB 292) transformed under Senator Darrell Steinberg’s political leadership into more ambitious legislation (SB 900) that will expedite CEQA litigation over “green” mega-development projects certified by Governor Brown as “Environmental Leadership Development Projects”.  Governor Brown signed both bills into law on September 27, 2011.

Premised on the need – in California’s current high unemployment climate – to streamline CEQA litigation delaying large, job-creating projects with “cutting edge environmental benefits,” AB 900 amends CEQA by:
Continue Reading Governor Signs AB 900 to Speed CEQA Litigation Challenging Massive “Green” Projects