In a partially published (but mostly unpublished) opinion filed on March 7, 2024, the Fifth District Court of Appeal reversed the trial court’s judgment and writ-discharge order which had upheld Kern County’s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) ___ Cal.App.5th ___.  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  It held (in unpublished portions of its opinion) that the SREIR’s discussion of cancer risk from the potential drilling of multiple wells near a sensitive receptor was informationally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  (These and other unpublished portions of the opinion will not be discussed in any further detail in this post.)Continue Reading Fifth District Clarifies That Agricultural Conservation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

In a partially published opinion filed September 20, 2023, the First District Court of Appeal (Div. 3) affirmed the Alameda County Superior Court’s judgments denying writ petitions in three partially consolidated CEQA actions challenging the 2021 project/program EIR for the Comprehensive Parnassus Heights Plan.  Yerba Buena Neighborhood Consortium, LLC, et al v. Regents of the University of California/San Franciscans for Balanced and Livable Communities v. Regents of the University of California (2023) 95 Cal.App.5th 779. Continue Reading First District Affirms Judgment Upholding UCSF’s EIR for Long-Range Development Plan Substantially Increasing Parnassus Heights Campus Development Against Numerous CEQA Challenges

In a partially published opinion filed on September 7, 2023, the Third District Court of Appeal affirmed a judgment denying a CEQA challenge to Sacramento County’s approval of a mixed-use development project known as the Mather South Community Master Plan (the “project“); if implemented, the project would result in, inter alia, up to 3,522 residential dwelling units; 225,000 square feet of retail space; 49 acres of environmental education campus and research and development park uses; two elementary schools; and about 200 acres of parkland and open space areas on an 848-acre site. The issues on appeal were limited to the adequacy of certain aspects of the project EIR’s analyses of GHGs and criteria air pollutants. Tsakopoulos Investments, LLC v. County of Sacramento, et al. (Mather South, LLC, et al, Real Parties) (2023) 95 Cal.App.5th 280. (The unpublished portion of the opinion: (1) upheld the EIR’s qualitative analysis concluding that, with compliance with the State’s Low Carbon Fuel Standard and other air quality mitigation measures, construction-related GHG impacts would not be significant; and (2) concluded the EIR adequately explained, in compliance with the Supreme Court’s decision in Sierra Club v. County of Fresno (2018) 6 Cal.8th 502, why it was not feasible to correlate the level of the project’s air emissions to specific human health impacts from the project. In keeping with this blog’s practice, this post will not further discuss these unpublished portions of the Court’s opinion, except to note that they appear worthy of publication, and that the Court’s docket reflects that a request to publish was filed by Remy Moose Manley LLP on September 18, 2023. So stay tuned on that front…)Continue Reading Third District Affirms Judgment Denying CEQA Writ Petition Challenging Sacramento County’s Approval of Mather South Community Master Plan, Issues Narrow Holding Rejecting Challenges to County’s GHG Thresholds Methodology In Partially Published Opinion

In late April the Bay Area Air Quality Management District (“BAAQMD”) promulgated its revised 2022 CEQA Guidelines (“2022 Guidelines”), available here.  Previously BAAQMD had published guidelines in 2012, which were the subject of litigation culminating in the California Supreme Court’s decision in California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, an important case delineating the scope of CEQA in which we represented several amici curiae and which we blogged about here.Continue Reading BAAQMD Adopts Ambitious Revised 2022 CEQA Guidelines

In an opinion filed April 18, and belatedly ordered published on May 10, 2023, the Sixth District Court of Appeal upheld the City of San Jose’s (City) certification of a final Supplemental EIR (FSEIR) for development of three high-rise office towers (the “Project”) on an eight-acre downtown site containing several historic structures which the Project required to be demolished. Preservation Action Council of San Jose v. City of San Jose (SJ Cityview, LLC, Real Party in Interest) (2023) 91 Cal.App.5th 517. In affirming the trial court’s judgment denying Preservation Action Council of San Jose’s (Appellant) petition for writ of mandate, the Court rejected Appellant’s arguments that the FSEIR failed to adequately analyze and provide compensatory mitigation for the historic buildings and failed to adequately respond to comments on those issues.Continue Reading Sixth District Holds Downtown San Jose Office Project FSEIR’s Brief Discussion And Rejection of “Compensatory” Mitigation for Historic Buildings Razed By Project Was Informationally Adequate Under CEQA Based On City’s Unchallenged Factual Finding That No Similar Historic Buildings Existed Elsewhere In City’s Downtown

On May 17, 2020, the California Supreme Court granted review of the First District Court of Appeal’s controversial and much criticized published decision in Make UC a Good Neighbor v. Regents of University of California (2023) 88 Cal.App.5th 656, which held the University’s long-range campus development plan (LRDP) EIR inadequate, throwing a monkey wrench into its efforts to redevelop and build much-needed student and homeless housing at the historic People’s Park site. (My March 3, 2023 post on the Court of Appeal’s decision can be found here.)Continue Reading California Supreme Court Grants Review In Controversial “People’s Park”/Student Housing CEQA Case

On April 7, 2023, the Third District Court of Appeal filed a lengthy published opinion – the latest installment in one of the longer ongoing CEQA battles in recent memory – affirming a judgment finding an EIR for the Federal relicensing of Oroville Dam and related hydropower facilities legally adequate.  County of Butte and County of Plumas, et al v. Dept. of Water Resources  (2023) 90 Cal.App.5th 147.Continue Reading That Dam Case (Again):  Third District Upholds Oroville Hydropower Facilities Relicensing EIR Against Numerous CEQA Challenges