In a lengthy published opinion filed on August 22, 2018, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment rejecting various CEQA challenges to the City of San Francisco’s (“City”) Program EIR analyzing the environmental impacts of its 2009 General Plan Housing Element, which it adopted on June 29, 2011. San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596. San Franciscans for Livable Neighborhoods (“SFLN”), an unincorporated association comprised of more than a dozen neighborhood organizations, had challenged the EIR – mostly unsuccessfully – in the trial court. It then appealed from adverse portions of the judgment concerning the EIR’s baseline and impact analyses for traffic, water supply, land use, and visual resources impacts; the City’s decision not to recirculate the EIR; the EIR’s alternatives analysis; and the feasibility of certain proposed mitigation measures.
Cumulative Effects
Second District Holds CEQA Does Not Apply to San Luis Obispo County’s Issuance of Well Construction Permits Under Its Ministerial Governing Ordinance
By Arthur F. Coon on
In an opinion filed June 28, and later ordered published on July 27, 2018, the Second District Court of Appeal (Div. 6) affirmed the trial court’s judgment dismissing on demurrer a writ petition seeking to compel the County of San Luis Obispo to comply with CEQA in issuing well construction permits to four agricultural enterprises, mostly for vineyard irrigation. The Court held County’s governing local ordinance, which addresses only water quality issues and incorporates fixed technical standards for well construction from relevant Department of Water Resources (DWR) Bulletins, established a ministerial scheme for issuing such permits and does not confer “discretion to shape a well permit to mitigate environmental damage arising from groundwater overuse.” California Water Impact Network v. County of San Luis Obispo (Justin Vineyards and Winery, LLC et al., Real Parties in Interest) (2018) 25 Cal.App.5th 666.
Second District Holds CEQA’s Existing Facilities Categorical Exemption Applies To State Lands Commission/PG&E Lease Extension For Operation Of California’s Last Active Nuclear Power Plant Until 2025 Closure
In a published opinion filed June 13, 2018, the Second District Court of Appeal (Div. 4) affirmed a judgment denying a writ of mandate and declaratory relief in an action challenging the California State Lands Commission’s (“Commission”) determination that CEQA Guidelines § 15301’s categorical exemption for “existing facilities” applied to its renewal of PG&E’s leases of state-owned lands needed to operate the Diablo Canyon nuclear power plant until federal licensures expire in 2025. World Business Academy v. California State Lands Commission (Pacific Gas & Electric Company, Real Party in Interest) (2018) 24 Cal.App.5th 476. The Court rejected petitioner/appellant World Business Academy’s arguments that the consolidated lease replacement, which maintains the status quo at the plant until 2025, did not fall within the exemption, or was subject to the “unusual circumstances” exception, and also rejected arguments that it violated the public trust doctrine.
Filtering The CEQA Noise: First District Upholds Santa Rosa’s Negative Declaration For “Dream Center” Youth Housing Project, Holds Non-Expert Predictions Of Significant Noise Impacts Failed To Raise “Fair Argument” Supported By Substantial Evidence
By Arthur F. Coon on
A development project’s potential noise impacts can implicate complex and technical issues under CEQA, particularly where those impacts are asserted, in litigation by project opponents challenging a negative declaration, as the sole basis an EIR should have been required. Such was certainly the case in Charles T. Jensen v. City of Santa Rosa (Social Advocates For Youth, Real Party in Interest) (1st Dist. 2018) 23 Cal.App.5th 877, a dense 24-page opinion filed by the Court of Appeal for the First Appellate District (Division 4) on May 1, and later ordered certified for publication on May 24, 2018.
First District Rejects Numerous CEQA Challenges To RFEIR For Propane Recovery Project At Phillips 66 Company’s Rodeo Oil Refinery, Affirms Judgment Issuing Limited Writ
In an opinion filed March 20, and later certified for publication on April 12, 2018, the First District Court of Appeal (Division 3) affirmed a limited peremptory writ of mandate issued by the Contra Costa County Superior Court requiring the County to set aside an EIR and land use permit for Phillips 66 Company’s “Propane Recovery Project” at its oil refinery in the City of Rodeo, pending County’s correction of specified inadequacies in the EIR’s air quality analysis. Rodeo Citizens Association v. County of Contra Costa (Phillips 66 Company, Real Party in Interest) (2018) 22 Cal.App.5th 214. Unsatisfied with the trial court’s grant of limited relief and denial of its additional CEQA challenges to the EIR (based on an allegedly defective project description and deficient GHG and hazard analyses), plaintiff/appellant Rodeo Citizens Association (“RCA”) appealed as to those issues, but the Court of Appeal rejected its arguments and affirmed the writ as issued by the trial court.
Can You Clear Me Now? Sixth District Upholds Santa Cruz County’s CEQA Categorical Exemption For Project To Install Microcell Transmitters On Utility Poles In Rural Aptos Area
By Arthur F. Coon on
In an opinion filed February 5 and later ordered published on February 27, 2018, the Sixth District Court of Appeal affirmed a judgment denying Aptos Residents Association’s (“ARA”) writ petition challenging Santa Cruz County’s approval, as categorically exempt from CEQA, of real party Crown Castle’s (“Crown”) project to extend Verizon’s wireless coverage by installing a 13-microcell Distributed Antenna System (“DAS”) in Aptos’ Day Valley area. Aptos Residents Association v. County of Santa Cruz (Crown Castle, Inc., Real Party in Interest (2018) 20 Cal.App.5th 1039.
First District Holds CEQA Exhaustion Requirements Don’t Apply to Attorney General, Upholds Adequacy of Most of EIR’s Analysis for BNSF Railyard Project Near Port of Los Angeles
In a lengthy, partially published opinion filed January 12, 2018, the First District Court of Appeal (Division 3) partly affirmed, but in large part reversed, the trial court’s judgment granting a writ of mandate directing the City of Los Angeles to set aside its FEIR certification and approval of BNSF Railway Company’s (“BNSF”) project to construct a new intermodal railyard facility, near the Port of Los Angeles, to handle containerized cargo transported through the ports of Long Beach and Los Angeles. City of Long Beach, et al., Xavier Becerra (Attorney General, as Intervener) v. City of Los Angeles, (BNSF Railway Company, Real Party in Interest) (2018) 19 Cal.App.5th 465.
Fifth District Holds Cap-And-Trade Program Compliance Supports Refinery Project EIR’s Conclusion That GHG Emissions Are Less Than Significant, Also Addresses Important CEQA Baseline and Railroad Operation Preemption Issues
By Arthur F. Coon on
In a lengthy, partially published opinion filed November 21, 2017, the Fifth District Court of Appeal addressed four CEQA challenges asserted by plaintiffs and appellants (“AIR”) to the sufficiency of Kern County’s 2014 Final EIR for Real Parties’ (“Alon Energy”) project to modify an existing Bakersfield oil refinery. Association of Irritated Residents v. Kern County Board of Supervisors, et al. (Alon USA Energy, Inc., et al., Real Parties in Interest) (2017) 17 Cal.App.5th 708. The proposed modification would allow the refinery, which has existed and operated at the site through various ownerships since 1932, to unload two unit trains (104 cars) of crude oil (150,000 barrels) per day. The trains would carry potentially more volatile crude oil (i.e., likely to explode in a rail accident) transported from the Bakken formation in North Dakota. The refinery would process 70,000 barrels of crude oil per day, its currently authorized maximum level, and pipe the balance of the unloaded crude to other refineries to be processed.
First District Holds CEQA’s Substantive Requirements Apply to Environmental Documentation of State Agency Acting Under Certified State Regulatory Program, Directs Issuance of Writ Setting Aside Inadequately Reviewed Pesticide Label Approvals
In a published opinion filed September 19, 2017, the First District Court of Appeal reversed the trial court’s denial of a writ petition challenging defendant California Department of Pesticide Regulation’s (“Department”) approval of label amendments for two pesticides containing an active ingredient toxic to honeybees. The Court held the Department’s environmental review was deficient in failing to adequately address feasible alternatives, lacking adequate baseline information, and lacking an adequate cumulative impacts analysis, and that its public reports were so inadequate and conclusory as to render public comment effectively meaningless and require recirculation. Pesticide Action Network North America v. California Department of Pesticide Regulation (Valent U.S.A. Corporation, et al., Real Parties In Interest) (1st Dist., Div. 3, 2017) 15 Cal.App.5th 478.
Fifth District Grants Rehearing, Vacates Prior Published Opinion, and Issues Slightly Modified Published Opinion in POET II CEQA Litigation
On May 2, 2017, the Fifth District Court of Appeal vacated its earlier order and writ, and on May 5 it granted Respondents’ request for rehearing in the CEQA litigation entitled Poet, LLC v. State Air Resources Board, et al. (“POET II”) (5th Dist. 2017) 12 Cal.App.5th 52, Case No. F073340. Upon granting various requests for judicial notice of the parties, the Court resubmitted the cause without further briefing on May 24, and issued its modified published opinion (with no change in the result) on May 30, 2017.