In a partially published unanimous opinion filed June 16, 2021, authored by a jurist who is also a noted CEQA expert (Acting Presiding Justice Ronald Robie), the Third District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging El Dorado County’s mitigated negative declaration (MND) for and approval of the Newtown Road Bridge at South Fork Weber Creek Replacement Project.  Newtown Preservation Society, et al. v. County of El Dorado, et al. (3d Dist. 2021) ____ Cal.App.5th ____.  In the published portion of its opinion, the Court of Appeal held that petitioners/appellants erroneously framed the “fair argument” test in terms of the project having “potentially significant impacts on resident safety and emergency evacuation,” whereas the correct test is “whether the record contains substantial evidence that the project may have a significant effect on the environment or may exacerbate existing environmental hazards.”  It held appellants “failed to carry their burden of showing substantial evidence supports a fair argument of significant environmental impact in that regard.”  (In the unpublished portion of its opinion, which won’t be analyzed in further detail in this post, the Court held the County did not impermissibly defer mitigation, and it declined to consider two other arguments because they added nothing to the fair argument analysis and/or constituted new theories or arguments raised for the first time on appeal.)

Continue Reading Flunking CEQA’s “Fair Argument” Test: Third District Affirms Judgment Upholding MND for El Dorado County Bridge Replacement Project, Rejects Arguments Based on Alleged Significant Impacts on Fire Evacuation Routes During Construction As Insufficient To Require EIR

In an 85-page opinion filed March 25, and modified and certified for partial publication on April 23, 2021, the First District Court of Appeal affirmed the Napa County Superior Court’s judgment denying a writ petition challenging the County’s EIR and approvals for an expansion of Syar Industries, Inc.’s (Syar) aggregate mining operations at a quarry that has existed since the 1800s.  Stop Syar Expansion v. County of Napa (1st Dist. 2021) ____ Cal.App.5th ____.  The Court belatedly published about 25 pages of its lengthy opinion, which portions addressed basic CEQA principles, including standard of review and exhaustion principles, and the interplay of CEQA and general plan consistency issues.

Continue Reading First District Affirms Judgment Rejecting CEQA and General Plan Consistency Challenges to Napa County’s EIR for Syar Quarry Expansion Project, Addresses Significant Exhaustion and Land Use Issues

Falling more into the category of “spring cleaning” than “breaking news,” readers should note that a Second District decision, published last spring and covered in this blog, was ordered depublished by the California Supreme Court late last summer.

Continue Reading Supreme Court Denies Review of And Depublishes Second District Refinery Project Case Addressing CEQA Baseline Issues

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 life of the law has not been logic: it has been experience.” – Oliver Wendell Holmes, Jr., The Common Law (1881)

“CEQA discourse has become increasingly abstract, almost medieval in its scholasticism.” – former California Governor Edmund G. (“Jerry”) Brown, Jr.

by Arthur F. Coon

On November 24, 2020, the Fifth District Court of Appeal filed its partially published opinion in the latest installment of the long-running CEQA litigation over Fresno County’s approval of the Friant Ranch project.  Sierra Club v. County of Fresno (Friant Ranch, L.P., Real Party in Interest) (2020) 57 Cal.App.5th 979.  The litigation involves a 942-acre mixed-use development project (2500 residential units, 250,000 square feet of commercial space, 460 acres of open space) for which the Notice of Preparation (NOP) of the EIR was issued in 2007; it has generated an earlier appellate opinion (see my 6/16/14 post here) and a Supreme Court opinion (see my 12/28/18 post here) addressing important standard of review issues centered on the adequacy of the project EIR’s air quality impacts discussion.


Continue Reading Remedial Legal Logic: Fifth District Doubles Down On Split with Other Districts in Holding CEQA Doesn’t Allow Limited Writ Remedy of Partial EIR Decertification – But Does It Really Matter?

On November 10, 2020, the California Supreme Court – after briefly raising Petitioners’ hopes by extending the time to consider granting review – finally slammed the door shut on further litigation over a recent Fourth District Court of Appeal decision, issuing an order denying the three petitions for review filed by the parties, as well as a request for depublication filed by non-party City of Los Angeles.  Golden Door Properties v. S.C (County of San Diego) Case No. S264324.  The Court of Appeal’s Golden Door decision, which held lead agencies must retain and not destroy writings within the scope of CEQA’s mandatory and broadly inclusive administrative record statute (Pub. Resources Code, § 21167.6), notwithstanding assertedly contrary record-retention policies, will thus remain intact as published precedent.

Continue Reading Closing the “Golden Door”: California Supreme Court Denies Petitions for Review and Depublication Request in CEQA Administrative Record Case

On October 23, 2020, the California Supreme Court issued an order extending until December 7, 2020, or the date upon which review is either granted or denied, the time for granting or denying review in Golden Door Properties, LLC, et. al. v. Superior Court (County of San Diego et. al., Real Parties in Interest) (4th Dist. 2020) ___ Cal.App.5th ___.  The Court of Appeal’s decision, originally published on July 30, and modified upon denial of rehearing on August 25, 2020, held that a lead agency is required to retain, and may not  destroy, writings within the scope of CEQA’s mandatory and broadly-inclusive administrative record statute, Public Resources Code § 21167.6.

Continue Reading Keeping the “Golden Door” Cracked Open: California Supreme Court Extends Period to Consider Review of CEQA Administrative Record Case

In a detailed 6-page order, issued by Presiding Justice McConnell and filed on August 25, 2020, the Fourth District Court of Appeal denied three petitions for rehearing, and “polished up” its lengthy published opinion filed at the end of last month in Golden Door Properties, LLC et al v. Superior Court of San Diego (County of San Diego, et al, Real Parties in Interest) (4th Dist. 2010) 52 Cal.App.5th 837.  (My August 5, 2020 post on the case can be found here.)  Most of the Court’s changes were minor and technical in nature, pertaining more to issues of concern to the parties on remand, rather than its major precedential holdings, but a few were noteworthy.

Continue Reading Burnishing the “Golden Door”: Fourth District Modifies Recent Opinion Requiring Lead Agency Preservation of CEQA Administrative Record Documents, Denies Petitions for Rehearing and Leaves Judgment Unchanged

In a 77-page published opinion filed on July 30, 2020, the Fourth District Court of Appeal (Div. One) issued a writ of mandate largely overturning San Diego Superior Court rulings denying plaintiffs’ motions to compel discovery and to augment the administrative record in a CEQA case; the disputes arose from Real Party San Diego County’s admitted deletion of email documents as “non-official records” pursuant to its records retention policies.  Golden Door Properties, LLC et al. v. Superior Court of San Diego (County of San Diego, et al., Real Parties in Interest) (4th Dist. 2020) 52 Cal.App.5th 837.

Continue Reading “For the Record”: Fourth District Holds CEQA’s “Mandatory” And “Broadly Inclusive” Administrative Record Statute Requires Lead Agency To Retain Documents Within Its Scope And Not Destroy Them Prior To Record Preparation

In a published 2-1 majority opinion filed April 7, 2020, written by Justice Wiley and joined by Presiding Justice Bigelow, the Second District Court of Appeal (Div. 8) affirmed a judgment upholding the EIR for Tesoro’s “Los Angeles Refinery Integration and Compliance Project.”  Communities for a Better Environment v. South Coast Air Quality Management District (Tesoro Refining and Marketing Company, LLC, Real Party in Interest) (2d Dist. 2020) 47 Cal.App.5th 588.  The project involved Tesoro’s adjacent Carson and Wilmington oil refining facilities, which date from the early 1900s, and sought (1) to better integrate those facilities to increase flexibility in output ratios (e.g., of gasoline and jet fuel) to respond to market demands, and (2) to increase regulatory compliance by reducing air pollution.

Continue Reading Back To CEQA Basics: Second District Teaches That CEQA Requires Judicial Deference To Lead Agency’s Chosen Baseline, Failure To Administratively Exhaust “Exact Issue” Results In Forfeiture, And An EIR Is Not Faulty For Omitting Immaterial Information