On June 6, 2018, the Governor’s Office of Planning and Research (OPR) announced that it had issued a new technical advisory listing legislative CEQA exemptions located in statutes outside of Division 13 of the Public Resources Code. The advisory contains bullet point citations to more than 50 statutes and includes an Appendix A setting forth the full text of these exemptions, most of which are not contained in the CEQA Guidelines. The advisory notes that its list – which contains statutes codified in the Public Resources, Water, Penal, Government, Business and Professions, Education, Fish and Game, Health and Safety, Military and Veterans, and Welfare and Institutions Codes – is not exhaustive.
On April 30, 2018, the United States Supreme Court denied the petition for writ of certiorari filed in North Coast Railroad Authority v. Friends of the Eel River, U.S. Supreme Ct. Case No. 17-915, which presented this issue: “Whether citizen suits that seek to enforce state environmental approval requirements against a state-owned railroad by enjoining activities subject to the [Surface Transportation Board]’s exclusive jurisdiction are categorically preempted by [the Interstate Commerce Commission Termination Act of 1995].” The high court’s denial of review left undisturbed the California Supreme Court’s novel decision holding state public entity NCRA’s railroad project on its own line was subject to CEQA (and also onerous and delay-producing CEQA litigation) as an act of “self-governance”, whereas private rail carriers are exempt from these “regulatory” burdens by virtue of federal preemption under ICCTA. (My post on the California Supreme Court’s decision can be found here.)
Continue Reading When “Tigers Eat Their Young” – Federal Preemption Of CEQA In Context Of Railroad Projects Will Continue To Present Complex Issues Following U.S. Supreme Court’s Denial of Certiorari In Friends Of Eel River Case
SB 743 was enacted in 2013 to further California’s efforts to reduce GHG emissions by encouraging transit-oriented, infill development – a strategy announced in SB 375, the “Sustainable Communities and Climate Protection Act of 2008.” As part of SB 743, the Legislature enacted Public Resources Code § 21099(d)(1), which provides: “Aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.” In an opinion filed February 28, and subsequently certified for publication on March 22, 2018, the Second District Court of Appeal (Division 7) applied § 21099(d)(1) and held that it exempted from CEQA review alleged parking impacts of a 68-acre, mixed-use, infill project, located a quarter-mile from the Covina Metrolink commuter rail station, which the City approved via Mitigated Negative Declaration (MND) three months after the statute’s effective date. Covina Residents for Responsible Development v. City of Covina (City Ventures, Inc., et al., Real Parties in Interest) (2018) 21 Cal.App.5th 712. In addition to rejecting plaintiff/appellant CRRD’s CEQA challenges to the project, the Court of Appeal rejected its Subdivision Map Act (SMA) arguments and affirmed the trial court’s judgment denying its writ petition.
Continue Reading Redrawing CEQA’s “Parking” Lines? Second District Holds Parking Impacts of Covina Mixed-Use, Transit-Oriented Infill Project Are Statutorily Exempt From CEQA Review, Rejects Related Map Act Challenge
In a partially published opinion filed December 4, 2017, the Second District Court of Appeal affirmed the trial court’s post-remand judgment and held that CEQA’s remedies statute – Public Resources Code § 21168.9 – allows a court issuing a writ in a CEQA proceeding to partially decertify an EIR, and to leave unaffected project approvals in place when doing so. Center for Biological Diversity, et al. v. California Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (2017) ____ Cal.App.5th _____.
The opinion resulted from the second appeal in long-running litigation challenging approvals for the controversial Newhall Ranch development project in northwest Los Angeles County. (I won’t reiterate the underlying facts and legal issues raised in the merits litigation, but my post on the Supreme Court’s November 30, 2015 opinion in the matter can be found here, and my post on the Court of Appeal’s July 11, 2016 partially published opinion on remand can be found here).
As another year draws near its close, a number of notable recent CEQA developments in both the legislative and regulatory arenas have occurred that bear mention. Below are some highlights of new CEQA legislation that will be in effect in the new year, as well as significant regulatory changes in process.
When it comes to CEQA cases, some courts don’t seem to know when to stop beating a dead horse. So it may be with the Fourth District Court of Appeal’s 43-page, published, 2-1 majority decision, accompanied by a 4-page dissent, filed on November 16, 2017, after remand from the California Supreme Court in Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al. (4th Dist., Div. 1, 2017) 17 Cal.App.5th 413. My previous blog post on the Supreme Court’s disappointingly narrow opinion, which decided only the issue whether SANDAG’s 2011 EIR for its Regional Transportation Plan/Sustainable Community Strategy (RTP/SCS) violated CEQA by not explicitly engaging in an analysis of consistency of projected 2050 GHG emissions with a 2005 executive order (holding it didn’t), can be found here.
The Court of Appeal’s previous published decision, of course, reached that narrow GHG analysis issue and a lot more – it held SANDAG’s EIR was deficient in literally all respects argued by plaintiffs and intervenor/appellant the People, i.e., failure to analyze consistency with the 2005 Executive Order; failure to adequately address GHG mitigation; failure to analyze a reasonable range of project alternatives; failure to adequately analyze and mitigate air quality and particulate matter pollution impacts; and understating agricultural land impacts. In supplemental briefing following the Supreme Court’s remand, Cleveland and the People requested the Court to issue a revised published opinion essentially the same as Cleveland I, albeit slightly revised to acknowledge the Supreme Court’s partial reversal.
On October 15, 2017, Governor Brown vetoed SB 80 (Wieckowski), a bill that would have added to CEQA’s already detailed notice requirements.
Specifically, SB 80 would have amended Public Resources Code §§ 21092.2, 21092.3, 21108 and 21152 so as to require, inter alia, that state and local lead agencies: (1) offer to provide scoping notices, notices of preparation, and notices of determination by email to persons so requesting; (2) post all such notices on the agency’s website (if any); and (3) file with OPR or the County Clerk, as applicable, all Notices of Exemption (NOEs) for approved projects found exempt pursuant to the categorical exemptions contained in the CEQA Guidelines (as opposed to other possible bases for exemption).
While “agree[ing] with appellant that Telegraph Hill is outstanding and unique in a city of outstanding and unique places[,]” the First District Court of Appeal nonetheless affirmed the trial court’s order denying plaintiff/appellant neighborhood group’s mandamus petition challenging the City of San Francisco’s approval of a 3-unit condominium project there on CEQA and general plan consistency grounds. Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261. In a 15-page opinion originally filed September 14, but belatedly ordered published on October 13, 2017, the Court upheld the City’s findings that the project, which involved renovation of an existing deteriorated small cottage and construction of a new 3-dwelling unit residential structure, was categorically exempt from CEQA and consistent with the City’s general plan and planning code.
On October 15, 2017, Governor Edmund G. Brown, Jr. sent a veto letter to California State Assembly Members, returning a controversial and flawed proposed land use bill – AB 890 – without his signature. My partner Bryan Wenter and I authored a post here last month detailing the many problems we saw with the bill. (See “The Opposite of CEQA Reform: Legally Flawed AB 890 Would Expand Opportunities For CEQA Litigation Abuse While Abridging Constitutional Local Initiative Rights,” by Arthur F. Coon and Bryan W. Wenter, AICP, posted September 19, 2017.)
Fortunately, Governor Brown was receptive to the bill’s many critics, and struck a blow for local land use control, local initiative rights, CEQA reform and commence sense by vetoing it. His short letter to Assembly members, which can be found here, states in pertinent part that “[i]nstead of the piecemeal approach taken in this bill, I prefer a more comprehensive CEQA review, which takes into account both the urgent need for more housing and thoughtful environmental analysis. Hear, hear!
AB 890 (Medina – D), recently sent to Governor Brown for action by October 15, seeks to amend Government Code § 65867.5 and to add §§ 65363 and 65850.10 to prevent development agreements and certain types of land use planning and zoning legislation from being enacted by local voter-sponsored land use initiatives. The bill would substantially abridge the local electorate’s constitutionally guaranteed and reserved initiative power by purporting to exclusively “delegate” specified exercises of legislative authority to local governing bodies – city councils and county boards of supervisors – and thus concomitantly eliminating local voters’ long-held and until now unassailable rights to directly legislate in such areas pursuant to California Constitution, Article II, Section 11, and the procedures of the Elections Code.
The bill’s stated purpose is to ensure the enumerated types of local development proposals are subjected to CEQA review – and, implicitly, to provide expanded opportunities for litigation under a flawed CEQA statute the legislature continues to refuse to meaningfully reform – by annulling the constitutional right of local voters to directly legislate in these areas, a presently enjoyed and “jealously guarded” right the exercise of which is not currently subject to CEQA review. Long story short: AB 890 is a bad bill that proposes a cure far worse than the perceived disease. As will be apparent from the discussion of its provisions below, the proposed law is deeply flawed, of doubtful constitutionality, and the opposite of CEQA reform.