On July 10, 2023, Governor Newsom signed into law a number of bills aimed at streamlining and accelerating the construction of critical infrastructure projects needed to achieve California’s ambitious climate and clean energy goals. Among the many bills was SB No. 149, CEQA legislation that amended Public Resources Code §§ 21167.6, 21181, 21183, 21189.1, and 21189.3; added Chapter 7 (commencing with § 21189.80); and became effective immediately as an urgency measure “[t]o promote environmental protection and safeguard economic development of California’s diverse public resources and people, and enhance the state’s ability to maximize federal funding to support those efforts[.]” The full text of SB 149 can be found here.Continue Reading Governor Signs Infrastructure/Budget Legislation Including Significant Revisions To CEQA (SB 149)
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
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
In a published opinion filed March 2, 2023, the Fifth District Court of Appeal held that where no governmental approvals were required, an investor-owned public utility was not required to comply with CEQA prior to exercising its eminent domain power by filing an action to condemn a maintenance/access easement in connection with its existing electrical power transmission facilities located on and traversing private property. Robinson v. Superior Court of Kern County (5th Dist. 2023) 88 Cal.App.5th 1144. While most of the opinion involved eminent domain issues irrelevant to this blog, the pertinent issue here is a simple definitional one: CEQA applies only to “discretionary projects proposed to be carried out or approved by public agencies” (Pub. Resources Code, § 21080(a)), and CEQA’s definition of “public agency” includes only state agencies, boards and commissions, and local and regional agencies. (Pub. Resources Code, § 21063; CEQA Guidelines, § 15379.)Continue Reading CEQA Does Not Apply To Investor-Owned Public Utility’s Exercise Of Power Of Eminent Domain To Acquire Electric Facilities Maintenance Easement
A 10-page article by Holland & Knight’s Jennifer Hernandez, published this month by the Center for Jobs & the Economy/California Business Roundtable, documents that CEQA litigation targeted nearly 50,000 housing units – approximately half the state’s total annual housing production – in 2020 alone. While Holland & Knight’s analysis of 2019-2021 CEQA lawsuit data is ongoing, the article’s “interim report”, which can be read here, states there is no expectation of change in the magnitude of anti-housing CEQA actions, which most frequently allege violations relating to analysis of climate change related impacts, i.e., GHGs and VMT.
Continue Reading CEQA vs. Housing: A Very Wrong Picture
In a 5-2 opinion filed August 1, 2022, a divided California Supreme Court held the Federal Power Act (“FPA”; 16 U.S.C. § 791a et seq.) does not “occupy the field” and entirely preempt CEQA’s application to the state’s participation, as applicant and hydroelectric facility owner/operator, in the Federal Energy Regulatory Commission (“FERC”) licensing process the FPA requires to operate such facilities. County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612, Case No. S258574. Acknowledging the result would likely be different if a private party were the license applicant, the Court applied a narrower type of direct conflict preemption, based on a state entity being the facility owner/operator/applicant. The majority did agree with the Third District Court of Appeal that the Counties challenging the State Department of Water Resources’ (“DWR”) EIR, prepared in connection with its application to renew a 50-year license to operate its Butte County Oroville dam and related hydroelectric facilities, could not seek to unwind a settlement agreement prepared as part of FERC’s application process and proceedings; nor could they seek to enjoin DWR from operating under the proposed (but not yet issued) license – a request for relief the Counties initially pursued, but apparently abandoned at oral argument before the Supreme Court. The Court’s majority acknowledged such actions would contravene FERC’s “sole jurisdiction” over licensing process disputes and be preempted under longstanding federal law. (18 C.F.R. § 4.34 (i)(6)(vii); First Iowa Coop. v. Federal Power Comm’n (1946) 328 U.S. 152, 164 (“First Iowa”).)
Continue Reading California Supreme Court Holds In 5-2 Decision, Over Chief Justice’s Strong Dissent, That Federal Power Act Does Not Fully Preempt CEQA’s Application to FERC’s Licensing Process for State-Owned and Operated Hydroelectric Projects
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
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.
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
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).
Continue Reading Fourth District Addresses Numerous Significant CEQA Issues In Action Challenging City of San Diego’s Utility Undergrounding Projects
On May 20, 2021, Governor Newsom signed into law Senate Bill No. 7, the “Jobs and Economic Improvement Through Environmental Leadership Act of 20216” (the “Act”), which repealed and added Chapter 6.5 to Division 13 of the Public Resources Code (sections 21178 through 21189.3). The new Act, which was immediately effective as an “urgency” statute, essentially modifies and reenacts former 2011 legislation that was repealed by its own terms on January 1, 2021. Like the former leadership act, the new legislation authorizes the Governor, until January 1, 2024, to certify certain “environmental leadership development projects” (“leadership projects”) that meet specified requirements for streamlining benefits related to CEQA. (Pub. Resources Code, §§ 21180, 21181.) To qualify for CEQA streamlining benefits under the new Act, the Governor must certify a project as a leadership project before January 1, 2024. (§ 21181.)
Continue Reading CEQA Urgency Legislation Reenacts Modified Version of Environmental Leadership Act, Adds Certain Housing Development Projects As Eligible For Governor Certification And Streamlining Benefits