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):

Continue Reading A Decade of CEQA Developments

In a published decision filed August 17, 2021, the Fifth District Court of Appeal affirmed the trial court’s judgment directing issuance of a writ of mandate ordering Inyo County to vacate three resolutions of necessity that authorized its condemnation of three Owens Valley landfill properties, including appurtenant water rights, owned by the Los Angeles Department of Water and Power (LADWP).  City of Los Angeles etc. v. County of Inyo (2021) __ Cal.App.5th__. The County operates three landfills on the properties pursuant to leases from LADWP.  In the published part of the opinion, the Court of Appeal held that CEQA’s issue exhaustion requirement did not apply to LADWP’s challenge to the County’s exemption determinations because the County failed to provide adequate notice of them, thus depriving LADWP of an opportunity to be heard on the issue.  As a matter of law, the Court also held the County improperly relied on the existing facilities exemption for the project.

Continue Reading Fifth District Holds Issue Exhaustion Not Required Where Agency Gave No Notice of Intent To Rely On CEQA Exemption Prior to Hearing, And Existing Facilities Categorical Exemption Does Not Apply to Unlined Landfills As A Matter of Law

In a published opinion filed June 30, 2021, the First District Court of Appeal applied well-established CEQA statute of limitations rules, and a “persuasive dictum” from one of its prior decisions addressing the requirements for valid tolling agreements, to affirm a judgment dismissing a CEQA claim as time-barred.  The Court also upheld the dismissal for failure to state any viable cause of action as to all of plaintiffs’ other claims challenging respondent East Bay Regional Park District’s (“EBRPD” or the “Park District”) approval of a Memorandum of Understanding (“MOU”) with Pacific Gas and Electric Company (“PG&E”); the MOU set forth contractual terms of PG&E’s tree removal for safety purposes within its natural gas pipeline easements on EBRPD lands.  Save Lafayette Trees, et. al v. East Bay Regional Park District (Pacific Gas and Electric Company, Real Party in Interest) (1st Dist., Div. 3, 2021) ___ Cal.App.5th ___.  (In keeping with this blog’s practice, this post’s analysis will focus on the CEQA issues; it will not cover in detail the case’s significant non-CEQA holdings, which disposed of plaintiffs’ claims against EBRPD for alleged (1) violation of the City of Lafayette’s local Tree Protection Ordinance (on state law preemption grounds); (2) violation of EBRPD’s own Ordinance No. 38; and (3) due process, all as a matter of law.  For purposes of full disclosure, I represented real party PG&E in this litigation.)

Continue Reading First District Addresses CEQA Statute of Limitations And Tolling Agreement Rules In Affirming Judgment Upholding EBRPD’s Approval of Tree Removal MOU With PG&E

In a published opinion filed on February 1, 2021, in an action arising from plaintiffs/appellants’ (“plaintiffs”) “potpourri” of unsuccessful legal challenges to the City of San Francisco’s decision to remove a controversial public monument celebrating California’s pioneer era, the First District Court of Appeal upheld dismissal of a CEQA claim for failure to exhaust administrative remedies.  Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470.

Continue Reading Failure to Pursue and Exhaust Administrative Appeal Remedy Results In Forfeiture of CEQA Challenge To Categorical Exemption Despite Lower Body’s Defective Hearing Notice

“The more I know, the less I understand/All the things I thought I’d figured out, I have to learn again” – Don Henley, “The Heart of the Matter”

One of CEQA’s bedrock principles is that environmental review must precede project approval.  (E.g., POET, LLC v. California Air Resources Board (2013) 217 Cal.App.4th 1214; CEQA Guidelines, § 15004(a).)  To reverse the order and “put the cart before the horse” would be anathema, i.e., to sanction uninformed and undemocratic lead agency decision making, and to encourage irretrievable commitments of resources and post-hoc rationalizations that foreclose mitigations and alternatives and sweep environmental considerations under the rug.  Right?  Well …  maybe not.  In the area of State Water Resources Control Board (“SWRCB” or the “State Board”) water quality certifications (“WQCs”) under the Federal Clean Water Act (“CWA”; 33 U.S.C § 1251 et seq), this bedrock principle appears to have been watered down, and it may be significantly eroding under pressure from a preemptive federal law deadline.


Continue Reading Must CEQA Compliance Precede Project Approval? When State Water Board Water Quality Certifications Are Involved, The Answer Is As “Clear as Mud”

As we rapidly approach the end of a year of COVID-related challenges and uncertainties, CEQA practitioners may want to review the year’s key legislation impacting CEQA and its application, which was contained in the handful of bills summarized below.

  • AB 168 (Aguilar-Curry). This urgency legislation became effective with the Governor’s signature on September 25, 2020.  It amends Government Code §§ 65400, 65913.4 and 65941.1 to correct an “oversight” in SB 35 (Weiner), namely, that 2017 law’s failure to consider potential destruction of tribal cultural resources as a result of the streamlined, ministerial (and thus CEQA-exempt) approval process it authorized for multifamily housing development projects satisfying specified objective planning standards.  (SB 35 is summarized in detail in my 12/7/17 blog post, which can be found here.)


Continue Reading 2020 CEQA Legislative Developments

On November 9, 2020, the United States Court of Appeals for the Ninth Circuit issued a published opinion affirming a judgment on the pleadings, granted by Northern District Presiding Judge William Alsup, in a removed action filed by a group of taxicab drivers and companies against the City of San Francisco.  San Francisco Taxi Coalition, et al. v. City and County of San Francisco, et al. (9th Cir. 2020) ___ F.3d ___.  The action challenged the San Francisco Municipal Transit Agency’s (SFMTA) adoption of 2018 taxi regulations which favored recent, post-2010 owners of taxi permits (called “medallions,” and for which the recent owners paid $250,000 each) over longer-term permit owners by giving them priority for lucrative airport pickup rides.

Continue Reading A “Fare” Shake? Ninth Circuit Affirms Judgment On the Pleadings for San Francisco In Removed Action Challenging SFMTA’s 2018 Taxi Regulations, Remands for Consideration of Whether to Grant Plaintiffs Leave to Amend CEQA Claim

Senator Scott Weiner’s Senate Bill (SB) 288 has passed both houses of the California Legislature, and was enrolled for proofing on September 4, 2020, prior to its delivery to the Governor for signature.  The new law’s prefatory declarations reflect a stated intent to expand and enact CEQA exemptions to reduce the time and cost of delivering transit and sustainable transportation projects in California, and thereby boost the COVID-damaged economy while furthering the State’s environmental goals.

Continue Reading Legislature Enacts SB 288 to Provide New and Expanded CEQA Exemptions for Sustainable Public Transportation Projects

On August 27, 2020, the California Supreme Court filed its unanimous opinion, authored by Justice Corrigan, in Protecting Our Water and Environmental Resources v. County of Stanislaus (2020) 10 Cal.5th 479 (“POWER”).  The POWER decision is a “mixed bag” for the parties to the litigation themselves:  the Court rejected both (a) the County’s position that all its well permits are ministerial approvals exempt from CEQA, and (b) the environmental plaintiffs’ converse position that all such permits are discretionary approvals subject to CEQA.  For non-parties, the case’s significance lies in its elucidation of the legal rules and principles governing the key distinction between discretionary and ministerial projects – a fundamental distinction that determines CEQA’s threshold applicability to agency approvals and actions.  In following appellate precedent focusing not on permitting ordinances and regulations as a whole and in the abstract, but more granularly on the specific regulatory controls applicable to a particular permit application, the high Court in POWER eschews the “all or nothing” approach urged by the parties and endorses a more nuanced and contextual analysis that is both reasonable and fully consonant with CEQA and its objectives.

Continue Reading Supreme Court Holds Stanislaus County Well Permit Decisions Under State Standards Are Neither Categorically Ministerial Nor Categorically Discretionary In Nature; Rather, Whether CEQA-Triggering Discretion Exists Must Be Determined On Case-By-Case Basis