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

In late September, Governor Newsom signed Executive Order N-80-20 (“EO 80-20”), which, among other things, extends the protections of a handful of previously issued executive orders related to COVID-19.  As relevant to CEQA practitioners, EO 80-20 extends the previous suspension of CEQA’s requirements for filing of specified notices with the county clerk and the posting of such notices in the county clerk’s office.

Continue Reading Governor Extends Conditional Suspension of Requirements Related to Posting CEQA Notices with County Clerks

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) ___ Cal.5th ___ (“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

In a partially published opinion filed June 25, 2020, the First District Court of Appeal (Division 5) reversed the trial court’s judgment entered after sustaining a demurrer without leave to amend; it held that a non-profit group’s petition and complaint for declaratory relief adequately stated a cause of action on the basis that U.C. Berkeley’s approval of student enrollment increases far beyond those projected in its 2005 Long Range Development Plan (“LRDP”), and analyzed in the related 2005 Program EIR (“PEIR”), constituted a “project” requiring CEQA review and mitigation.  (Save Berkeley’s Neighborhoods v. The Regents of the University of California, et al. (2020) ___ Cal.App.5th ___.)  The published portion of the opinion also held that the enrollment increases were not statutorily exempt under Public Resources Code § 21080.09, which requires an EIR for LRDPs.  (In the unpublished  part of the opinion, the Court held Petitioner had alleged sufficient facts to overcome Respondents’ statute of limitations argument for purposes of demurrer, that the case was not shown to be moot on the basis of the record before the Court, and that Petitioner had failed to show the trial court erred in denying its motion to compel production of documents pursuant to requests the trial court had found overbroad in scope.)

Continue Reading First District Holds U.C. Berkeley Campus’s Decision To Increase Student Enrollment Above Maximum Projected Level Analyzed In EIR for Long Range Development Plan Is A “Project” Under CEQA And Not Exempt Under Public Resources Code § 21089.09

In a mammoth 132-page published opinion (with an additional five pages of appendices) filed on June 12, 2020, the Fourth District Court of Appeal (Division One) mostly affirmed the trial court’s judgment invalidating San Diego County’s approvals of a 2018 Climate Action Plan (CAP), related Guidelines for Determining Significance, and related Supplemental EIR (SEIR).  The opinion – which marked “the third time the County’s attempt to adopt a viable climate action plan and related CEQA documents” had been before the Court – resolved consolidated appeals in three cases, in which the lead plaintiffs were Golden Door Properties, LLC and the Sierra Club.  (Golden Door Properties, LLC v. County of San Diego (2020) 50 Cal.App.5th 467.)  While the Court of Appeal reversed the trial court’s findings that the CAP was inconsistent with the County’s General Plan (applying the familiar highly deferential standard of review to the County’s consistency determination), that several of the County’s responses to SEIR comments were inadequate, and that the SEIR’s geographical scope of study for cumulative impacts was inconsistent, it otherwise affirmed the trial court’s findings of significant CEQA violations affecting the CAP and SEIR.

Continue Reading Third Time Is Not The Charm: Fourth District Affirms Judgment Setting Aside San Diego County’s Climate Action Plan And Related Supplemental EIR Approvals Due To CEQA Violations

On December 11, 2019, the California Supreme Court by a 7-0 vote granted the petition for review of Butte and Plumas Counties and the Plumas County Flood Control and Water Conservation District in County of Butte v. Department of Water Resources (State Water Contractors), Case No. S258574 (formerly published at (3d Dist. 2019) 39 Cal.App.5th 708).  The order granting review, which also directed that the Third District’s opinion be depublished at the request of defendant and respondent Department of Water Resources (which interestingly filed no answer to the petition for review), specified the following two issues for briefing:

Continue Reading California Supreme Court Grants Review of Third District Decision Involving FERC Relicensing of State’s Oroville Hydroelectric Dam Project To Decide Extent To Which Federal Power Act Preempts CEQA; Merits Briefing Underway

On April 2, 2020, the Second Appellate District Court of Appeal (Division 5) filed its published opinion in Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles et al. (Adrian Jayasinha et al., Real Parties in Interest) (2020) 47 Cal.App.5th 368, which affirmed a judgment dismissing a CEQA action challenging the City’s project approvals and Mitigated Negative Declaration (MND) for a mixed-use development project.  The judgment of dismissal was entered after the trial court sustained without leave the City’s and Real Parties’ demurrers on statute of limitations grounds.  In affirming, the Court reaffirmed and followed Supreme Court precedent “ma[king] clear that the filing of a facially valid notice [of determination or notice of exemption] starts the running of the statute of limitations, even where the underlying CEQA determinations may be flawed.”  (Citing Committee for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 43 [NODs]; Stockton Citizens for Sensible Planning v. City of Stockton (2010) 48 Cal.4th 481, 505 [NOEs].)

Continue Reading Second District Reaffirms Rule That Filing of Facially Valid NOD Triggers Short CEQA Statute of Limitations And Plaintiff May Not “Go Behind” Agency’s Declarations In Document To Challenge Validity of Project Approval

In a published opinion filed March 24, 2020, the Fourth District Court of Appeal (Division One) reversed a judgment of dismissal with prejudice, entered by the San Diego County Superior Court after sustaining a demurrer without leave on statute of limitations grounds to a group’s action challenging the CEQA review for Caltrans’ Interstate 5 (I-5)/State Route 56 (SR 56) freeway interchange project (the “Project”).  Citizens for a Responsible Caltrans Decision v. Department of Transportation (2020) 46 Cal.App.5th 1103.  The opinion (1) interprets, as a matter of first impression, the scope and operation of the statutory CEQA exemption in Streets and Highways Code § 103 (“Section 103”), and (2) holds that Caltrans’ repeated misrepresentations and misleading conduct during and concerning the Project’s CEQA and approval process precluded the trial court from finding as a matter of law that Caltrans was not estopped to assert the ban of the 35-day statute of limitations based on its filing of a Notice of Exemption (NOE) with the State Clearinghouse (SCH).

Continue Reading Once More Into the “Brambled Thicket”: Fourth District Reverses Ruling Sustaining Demurrer to Action Challenging Caltrans’ Claim of Statutory CEQA Exemption For Freeway Interchange Project, Holds Streets and Highways Code § 103’s Coastal Commission Exemption Does Not Apply And That Petition Adequately Pleaded Estoppel Against Caltrans to Assert 35-Day Statute of Limitations Based on NOE Filing