Cumulative Effects

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On February 13, 2025, the Second District Court of Appeal (Div. 7) filed its 71-page published opinion affirming the trial court’s judgment rejecting CEQA safety hazard and cumulative impacts analysis challenges – as well as Administrative Procedure Act (“APA”) and generic “arbitrary and capricious” writ challenges – to the California Air Resources Board’s (“CARB”) August 2020 decision adopting the “Control Measure For Ocean-Going Vessels At Berth” (the “Regulation,” codified at 17 Cal. Code Regs. § 93130 et seq).  Western States Petroleum Association v. California Air Resources Board (2025) 108 Cal.App.5th 938.Continue Reading Second District Affirms Judgment Rejecting CEQA And Other Challenges To CARB’s “Technology-Forcing” Emissions-Control Regulation For At-Berth Tanker And Other Ships

On November 22, 2024, the First District Court of Appeal’s (Div. 4) partially-published opinion in People of the State of California ex rel. Bonta v. County of Lake (Lotusland Investment Holdings, Inc., et al. Real Parties in Interest) (2024) 105 Cal.App.5th 1222 (No. A165677) became final.  The published part of the decision addresses several significant CEQA topic areas, including the adequacy of an EIR’s discussions of impacts related to a large rural resort development project’s wildfire risks and water supply impacts, and the propriety of a lead agency’s condition of approval imposing a carbon credit purchase obligation to potentially mitigate the project’s significant and unavoidable greenhouse gas (GHG) emissions in light of acknowledged uncertainty as to whether such credits would be available.  (As a matter of disclosure, Respondent County of Lake was represented in the trial and appellate proceedings in this case by this post’s authors, Miller Starr Regalia attorneys Arthur Coon and Matthew Henderson.)Continue Reading First District Addresses Significant CEQA Issues Relating to Wildfire Risk, GHG Emissions, and Water Supply Impacts in Lake County Resort Development Case

In a partially published opinion filed October 31, 2024, the Second District Court of Appeal (Div. 1) held, in light of AB 1307 and the Supreme Court’s decision in Make UC a Good Neighbor v. Regents of University of California (2024) 16 Cal.5th 43 (”Make UC II”), that noise from residents congregating on a USC-area residential housing project’s rooftop decks “do[es] not constitute a significant environmental effect impeding application of the Class 32 exemption[,]” including through attempted invocation of the unusual-circumstances exception.  West Adams Heritage Association et al. v. City of Los Angeles (Robert Champion at al, Real Parties in Interest) (2024) 106 Cal.App.5th 395.  The Court held that reversal was required for another reason, however, as the City failed to determine the project’s consistency with an applicable redevelopment plan, which the City had by ordinance incorporated into its applicable zoning, prior to granting the exemption.  (In the unpublished portion of its opinion, which won’t be further discussed in detail here, the Court also rejected appellants’ CEQA challenges to the infill exemption based on alleged significant traffic safety, historical resources, and cumulative impacts.)Continue Reading Fight On! After Grant and Transfer, Second District Holds Upon Reconsideration that Resident Noise Does Not Preclude CEQA Class 32 Infill Exemption for USC Area Housing Development Project; But Also Holds City Must First Find Project Consistent With Redevelopment Plan Incorporated Into Zoning Before Granting Exemption

In an opinion filed August 27 and later ordered published on September 24, 2024, the Fifth District Court of Appeal affirmed a judgment denying a writ petition that challenged the State Air Resources Board’s (CARB) adoption of the Advanced Clean Trucks Regulation (Regulation) on CEQA and Administrative Procedures Act (APA; Gov. Code, § 11340 et seq) grounds.  California Natural Gas Vehicle Coalition v. State Air Resources Board (2024) 105 Cal.App.5th 304.  The Court held that CARB’s in-depth study of three alternatives (including the “no project” alternative) constituted a reasonable range for CEQA purposes; it further held that CARB’s alternative analysis wasn’t deficient for rejecting without in-depth study, as infeasible for policy reasons, an alternative proposed by opponents of the Regulation that would have applied a low-NOx vehicle credit to sales mandates applicable to zero-emission vehicles (ZEV).  Based on the same reasoning, the Court held CARB also need not have considered the now-NOx vehicle credit as a mitigation measure for the acknowledged significant near-term air quality impacts of the Regulation.  (The Court also rejected appellant Coalition’s APA arguments in a portion of its opinion that won’t be further discussed in this post.)  Finally, the Court held on CARB’s affirmative appeal that any error with respect to the admission of a specific “white paper” document into the administrative record was nonprejudicial, and therefore harmless, as it did not impact either the trial court’s or its own analysis.Continue Reading Fifth District Affirms Judgment Rejecting CEQA/APA Challenges to CARB’s Approval of ZEV Truck Sales Mandate Regulation; Holds Alternatives and Mitigation Analyses Need Not Include Low-NOx Vehicle Credit Contrary to Project’s Underlying Fundamental Purpose

In an opinion filed August 15, and modified and certified for publication on September 13, 2024, the Fourth District Court of Appeal (Div. 2) resolved cross-appeals from a judgment granting a limited writ by reversing with directions to deny the writ.  The Court thus found the City of Upland’s (City) Mitigated Negative Declaration (MND) for approvals of a 201,096-square foot parcel-delivery warehouse project legally adequate under CEQA.  Upland Community First v. City of Upland (2024) 105 Cal.App.5th 1.  In doing so, the Court not only upheld an environmental document (an MND) that is, in general, notoriously difficult to defend under CEQA’s applicable “fair argument” standard of review, but also upheld, as supported by substantial evidence: (1) City’s application of a stringent 3,000 MTCO2 e/year quantitative threshold of significance to the project’s GHG emissions, and (2) City’s determination that the project’s “net-over-baseline” GHC emissions would not exceed that threshold – despite some effort being required to “connect the dots” regarding the record evidence to show the City’s math in reaching that determination.  While ultimately irrelevant to the outcome in their favor, the Court also held that City and the project’s developer (Bridge) forfeited – by failing to timely raise – their alternative argument that the project’s GHG emissions were insignificant based on a different, qualitative “threshold,” i.e., City’s finding that the project was consistent with its Climate Action Plan (UCAP).  Finally, the Court rejected all of project opponent UCF’s appellate challenges to City’s MND based on allegedly faulty traffic and VMT analyses.Continue Reading Fourth District Reverses Judgment Granting Writ and Holds City of Upland’s MND For Warehouse Project Satisfies CEQA; Rejects Arguments That City’s Choice and Application of Quantitative GHG Significance Threshold Lacked Substantial Evidence Support

Miller Starr Regalia’s developer clients are always keenly interested in efficient and defensible CEQA compliance, which entails effective utilization of legislative and regulatory exemptions and streamlining options where the same are available for particular projects. My partner, Carolyn Nelson Rowan, the incoming Editor-in-Chief of the Miller & Starr California Real Estate 4th treatise, and I took a detailed look at recent judicial application of the statutory CEQA exemption implemented by CEQA Guidelines §15183, which can provide either a complete exemption or streamlining benefits for projects consistent with the development density/intensity established by existing community plans or zoning policies reviewed by a prior EIR. Our article on the same, “Hilltop Group, Inc. v. County of San Diego: Throwing a Judicial Monkey Wrench Into the Spin Cycle of Local Agency CEQA Laundering?” was published in the May 2024 issue of the Miller & Starr Real Estate Newsalert, and can be found here.Continue Reading Recent Judicial Developments in CEQA Exemptions and Streamlining

In a partially published (but mostly unpublished) opinion filed on March 7, 2024, the Fifth District Court of Appeal reversed the trial court’s judgment and writ-discharge order which had upheld Kern County’s most recently revised “streamlined permitting” ordinance for oil and gas wells and its associated CEQA review.  V Lions Farming, LLC v. County of Kern, et al. (California Independent Petroleum Association, et al., Real Parties) (2024) 100 Cal.App.5th 412.  The Court of Appeal instead directed entry of a judgment and writ setting aside the County’s revised ordinance and related certification of a revised supplemental recirculated EIR (SREIR) and addendum.  It held (in unpublished portions of its opinion) that the SREIR’s discussion of cancer risk from the potential drilling of multiple wells near a sensitive receptor was informationally deficient, and that the County also erred in analyzing the significance of lowering groundwater levels in wells by misconstruing CEQA to prohibit consideration of the social and economic impacts on disadvantaged communities in making that significance determination.  (These and other unpublished portions of the opinion will not be discussed in any further detail in this post.)Continue Reading Fifth District Clarifies That Agricultural Conservation Easements (ACE’s) Qualify As Legally Permissible “Compensatory Mitigation” For Agricultural-Land Conversion Impacts Under CEQA Despite Not Ensuring No Net Loss

In an important published opinion filed February 16, 2024, the Fourth District Court of Appeal (Div. 1) held the San Diego County Board of Supervisors committed a prejudicial abuse of discretion in granting project opponents’ appeals of the Planning Commission’s decision upholding County’s use of the CEQA Guidelines section 15183 exemption for a construction debris and inert materials recycling facility project.  Hilltop Group, Inc., et al v. County of San Diego, et al. (2024) 99 Cal.App.5th 890.  The decision is noteworthy not just as the newest in a series of recent published decisions explicating the application of this important CEQA exemption, but because it sides with and grants a writ remedy to a project developer plaintiff that ultimately prevailed in litigation alleging a lead agency overstepped its legal authority by ordering preparation of an unnecessary EIR for an exempt project.Continue Reading CEQA Remedies Go Both Ways:  Fourth District Reverses Judgment Upholding San Diego County Board’s Decision Granting Project Opponents’ Administrative Appeal, Holds Board Erred In Finding CEQA Guidelines Section 15183 Statutory Exemption Inapplicable And Ordering EIR Prepared for Exempt Industrial Project

In a 51-page published opinion filed January 5, 2024, and resolving consolidated appeals, the Third District Court of Appeal rejected baseline, piecemealing/segmentation, impact analysis, project description, alternatives analysis, and failure-to-recirculate challenges to the EIR for the Department of Water Resources’ (“DWR”) approval of amendments to long-term water supply contracts with local government agencies receiving water through the State Water Project (“SWP”).  The amendments extended the contracts, which were originally entered into in the 1960s for 75-year terms, so as to end in the year 2085, and made other amendments to their financial provisions.  In the course of affirming the trial court’s judgment upholding the EIR and contract amendments against CEQA, Delta Reform Act, public trust doctrine, and other challenges, the Court of Appeal applied numerous well-established CEQA principles in the enormously significant and complex context of continuing long-term SWP contracts.  Planning and Conservation League, et al v. Department of Water Resources, et al, etc. (2024) 98 Cal.App.5th 726 (Ct. App. Nos. C096304, C096316, C096384).Continue Reading Third District Rejects CEQA and Other Challenges to Department of Water Resources’ EIR for Amendments Extending Long-Term State Water Project Supply Contracts Through 2085

On October 20, 223, the First District Court of Appeal (Div. 3) filed an “Order Modifying Opinion; and Denying Petitions for Rehearing and Publication [No Change in Judgment]” in Yerba Buena Neighborhood Consortium, LLC, et al. v. The Regents of the University of California (2023) 95 Cal.App.5th 779, litigation that I analyzed in my 10/10/23 post here.  The Order denied petitions for rehearing, denied the California Building Industry Association’s request to publish unpublished portions of the Opinion, and slightly modified the lengthy opinion to add a single footnote and revise one sentence.  The Court of Appeal’s docket also reflects that petitions for review have been filed in the case and those may not be acted on by the Supreme Court until around the end of the year.Continue Reading First District Denies Rehearing and Publication Requests, Slightly Modifies Opinion With No Change in Judgment in CEQA Case Upholding U.C. Regents’ EIR for Parnassus Heights Campus Long-Range Development Plan; Petitions For Review Filed