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
Cumulative Effects
Fourth District Rejects CEQA And Municipal Code Challenges To City Of Santa Cruz’s Project Approvals And EIR For Small Multifamily Housing Project
In an opinion filed on December 16, 2021, and belatedly ordered published on January 13, 2022, the Fourth District Court of Appeal rejected a CEQA challenge to a small multifamily project in the City of Santa Cruz. Ocean Street Extension Neighborhood Assn. v. City of Santa Cruz (2021) 73 Cal.App.5th 985 (“OSENA”). The case contains valuable guidance regarding mitigation for biological resources impacts, lays out some common sense principles that may help condense the EIR preparation process, and also provides useful guidance to developers and agencies dealing with water supply issues during the current drought.
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Continue Reading Fourth District Rejects CEQA And Municipal Code Challenges To City Of Santa Cruz’s Project Approvals And EIR For Small Multifamily Housing Project
Third District Rejects CEQA Challenges To El Dorado Irrigation District Ditch Piping Project, Holds EIR’s Project Description And Analysis Of Potential Hydrology, Biological Resources, and Wildfire Impacts Were Adequate
In an opinion filed January 28, and later certified for publication on February 16, 2022, the Third District Court of Appeal affirmed a judgment denying a petition for writ of mandate that challenged on CEQA grounds the El Dorado Irrigation District’s (“EID”) decision to undertake its Upper Main Ditch piping project. Save the El Dorado Canal v. El Dorado Irrigation District, et al. (2022) 75 Cal.App.5th 239. The challenged water conveyance project would replace about three miles of EID’s open and unlined earthen ditch system with a buried water transmission pipeline in order to conserve water and improve water quality. Petitioner alleged the EIR’s project description was inadequate because it omitted the material fact that the ditch section to be abandoned as a water conveyance also served as the watershed’s only drainage system, and that the EIR insufficiently analyzed the abandonment’s impacts on hydrology, biological resources, and wildfires.
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Continue Reading Third District Rejects CEQA Challenges To El Dorado Irrigation District Ditch Piping Project, Holds EIR’s Project Description And Analysis Of Potential Hydrology, Biological Resources, and Wildfire Impacts Were Adequate
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 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
Fourth District Addresses Numerous Significant CEQA Issues In Action Challenging City of San Diego’s Utility Undergrounding Projects
By Arthur F. Coon on
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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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
Third District Affirms CEQA And Attorneys’ Fees Judgments In Favor Of Department Of Water Resources In Monterey Agreement And Amendment Litigation
Against the backdrop of another severe drought, water supply and impact issues continue to be points of contention for water agencies, water users, conservation groups, and the state. And, of course, litigation over water is not limited to water rights and usage, but extends to related environmental review under CEQA. On September 22, 2021, the Third District Court of Appeal issued a published opinion in Central Delta Water Agency v. Department of Water Resources (2021) 69 Cal.App.5th 170, disposing of several consolidated cases and analyzing operation of the state’s massive State Water Project (SWP) through a CEQA lens. While the case does not break any new legal ground, it applies well-recognized CEQA principles to a lengthy and complex fact pattern involving multiple rounds of lengthy litigation, settlement, and EIR preparation.
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Continue Reading Third District Affirms CEQA And Attorneys’ Fees Judgments In Favor Of Department Of Water Resources In Monterey Agreement And Amendment Litigation
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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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
Fifth District Holds EIR For Kern County’s Ministerial Oil and Gas Well Permitting Ordinance Violates CEQA Due To Improperly Deferred Mitigation For Water Supply Impacts, Inadequate Mitigation For Farmland Conversion, And Inadequate Analysis of Noise Impacts
By Arthur F. Coon on
Posted in Cumulative Effects, Energy, Land Use, Litigation, Mitigation, Recirculation, Remedies, Resources, Standard of Review, Water Supply
In a partially-published, 150-page slip opinion resolving appeals in consolidated cases, and filed February 25, 2020, the Fifth District Court of Appeal affirmed in part and reversed in part a trial court decision finding CEQA defects in the 1800-plus page EIR prepared for Kern County’s adoption of an ordinance designed to provide a streamlined, ministerial permitting process for new oil and gas wells in the county. King and Gardiner Farms, LLC v. County of Kern, et al. (California Independent Petroleum Association, et al., Real Parties in Interest); Committee for a Better Arvin, et al. v. County of Kern, et al. (California Independent Petroleum Association, et al., Real Parties in Interest) (5th Dist. 2020) 45 Cal.App.5th 814. The published portion of the opinion held the EIR improperly deferred the formulation and implementation of mitigation for significant water supply impacts; failed to adequately mitigate farmland conversion impacts due to improper reliance on agricultural conversion easements (ACEs) as offsetting mitigation; and failed to adequately analyze noise impacts by relying solely on an absolute cumulative numerical limit threshold of significance, rather than also analyzing the significance of the magnitude of project noise increases over ambient levels in differently affected settings. (Approximately 53 pages of the opinion, a portion finding CEQA violations with respect to air quality and related health risks due to failure to adequately discuss PM 2.5 emissions impacts and related mitigation, and failure to recirculate the DEIR after adding significant new information in the form of an appended Cumulative Health Risk Assessment, were not certified for publication; consequently, those portions set no precedent and will not be discussed in further detail in this post.)
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Continue Reading Fifth District Holds EIR For Kern County’s Ministerial Oil and Gas Well Permitting Ordinance Violates CEQA Due To Improperly Deferred Mitigation For Water Supply Impacts, Inadequate Mitigation For Farmland Conversion, And Inadequate Analysis of Noise Impacts