On January 6, 2015, the San Diego Association of Governments (SANDAG) filed a petition asking the California Supreme Court to review the decision in Cleveland National Forest Foundation, et al. v. San Diego Association at Governments, et al. (4th Dist. 2014) __ Cal.App.4th __, Case No. D063288, Supreme Court Case No. S223603. (For a discussion of the Court of Appeal’s decision, see “Analysis Of GHGs Under CEQA Just Got More Complex: Fourth District’s Split Decision Invalidates Program EIR For SANDAG’s 2050 Regional Transportation Plan/Sustainable Communities Strategy” by Arthur F. Coon, posted December 1, 2014.)
Continue Reading SANDAG Seeks Review of CEQA Decision Invalidating EIR for Its Regional Transportation Plan/Sustainable Communities Strategy
Legislation
“Making CEQA A Federal Case? Recent Actions of California’s Supreme Court and the Federal Surface Transportation Board Set Up A Preemption Showdown”
By Arthur F. Coon on
Controversy has dogged the California high speed rail project since before its inception with the 2008 passage of Proposition 1A, the bond measure providing the project’s initial funding. The controversy has not abated in the years since, and the project has been subject to ever-escalating cost estimates and almost constant second-guessing. It has also been the target for multiple CEQA lawsuits. Recent developments in this area demonstrate just how complex the legal landscape can get when it comes to CEQA’s application to large and long-term public railway projects. Two very different bodies – the California Supreme Court and the federal Surface Transportation Board (STB) – have just waded into this legal thicket to try to provide some clarity. But things could get worse before they get better in that regard, as the stage is set for potentially conflicting rulings on the application of federal preemption law to CEQA.
Continue Reading “Making CEQA A Federal Case? Recent Actions of California’s Supreme Court and the Federal Surface Transportation Board Set Up A Preemption Showdown”
Fifth District Rejects CEQA Challenge to Fresno County Aggregate Mine Project EIR In Partially Published Decision, Clarifies State Mining Board’s Smara Powers and CEQA’s Farmland Loss Mitigation Rules
By Arthur F. Coon on
In a lengthy, 65-page opinion filed December 8, 2014 (of which fully two-thirds was unpublished), the Fifth District Court of Appeal affirmed the Fresno County Superior Court’s judgment upholding the EIR, Conditional Use Permit (CUP), and reclamation plan approvals for the Carmelita Mine and Reclamation Project, an aggregate mining and processing operation proposed to be located at a 1,500-acre site 15 miles east of Fresno. Friends of the Kings River v. County of Fresno (Colony Land Company, L.P., and Carmelita Resources, LLC, RPI) (5th Dist. 2014) 232 Cal.App.4th 105. The project contemplates extraction of 1.25 million tons of aggregate per year, from 22 individual mining cells of about 40 acres each, over a period of up to 100 years, with mining and subsequent reclamation activities to proceed on a cell-by-cell basis.
Continue Reading Fifth District Rejects CEQA Challenge to Fresno County Aggregate Mine Project EIR In Partially Published Decision, Clarifies State Mining Board’s Smara Powers and CEQA’s Farmland Loss Mitigation Rules
Fourth District Publishes Another CEQA Decision Setting Aside San Diego Lead Agency’s EIR For Failure To Analyze And Mitigate GHG Emissions Per 2005 Executive Order; SANDAG Announces It Will Seek Review Of Related Adverse Decision
By Arthur F. Coon on
“And all this science, I don’t understand
It’s just my job, five days a week”
— Elton John/Bernard Taupin,
“Rocket Man”
Having seen years of their lofty regional planning efforts come crashing back to Earth, San Diego government entities have had little to be thankful about so far this holiday season on the CEQA front. In an October 29 decision later ordered published on November 24, 2014, the Fourth District Court of Appeal affirmed the San Diego County Superior Court’s judgment setting aside San Diego County’s 2011 general plan update and related program EIR (PEIR). Sierra Club v. County of San Diego (4th Dist., Div. 1, 2014) 231 Cal.App.4th 1152.Continue Reading Fourth District Publishes Another CEQA Decision Setting Aside San Diego Lead Agency’s EIR For Failure To Analyze And Mitigate GHG Emissions Per 2005 Executive Order; SANDAG Announces It Will Seek Review Of Related Adverse Decision
Supreme Court Hears CEQA Categorical Exemption Case Arguments; Matter Now Submitted And Awaiting Decision
By Arthur F. Coon on
I had occasion earlier this week to attend oral argument at the California Supreme Court in the Berkeley Hillside Preservation v. City of Berkeley case (No. S201116), which involves issues concerning the proper interpretation of and standard of judicial review for the “unusual circumstances” exception to categorical exemptions set forth in the CEQA Guidelines. The…
Analysis Of GHGs Under CEQA Just Got More Complex: Fourth District’s Split Decision Invalidates Program EIR For SANDAG’s 2050 Regional Transportation Plan/Sustainable Communities Strategy
By Arthur F. Coon on
In a 2-1 published opinion filed November 24, 2014, the Fourth District Court of Appeal, Division 1, affirmed and modified the trial court’s judgment granting writ petitions by plaintiff groups challenging the EIR for the San Diego Association of Governments’ (SANDAG) 2050 Regional Transportation Plan/Sustainable Communities Strategy (2050 RTP/SCS). Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al. (2014) ___ Cal.App.4th ___, 2014 WL 6614394. SANDAG’s RTP was the first of its kind approved under SB 375, and it sought to better align transportation, land use, and housing so as to achieve regional GHG emissions reductions targets set by the California Air Resources Board (CARB). SANDAG’s assigned targets are to reduce per capita CO2 emissions 7% below 2005 levels by 2020, and 13% below 2005 levels by 2035.
Continue Reading Analysis Of GHGs Under CEQA Just Got More Complex: Fourth District’s Split Decision Invalidates Program EIR For SANDAG’s 2050 Regional Transportation Plan/Sustainable Communities Strategy
What CEQA Gives, The Legislature Can Take Away: Third District Holds Special Legislation For Sacramento Kings Downtown Arena Project Is Constitutional, Upholds Trial Court’s Denial Of Preliminary Injunction
By Arthur F. Coon on
The Third District Court of Appeal, in a published opinion filed November 20, 2014, affirmed the trial court’s order denying plaintiffs’ application for a preliminary injunction seeking to halt construction of a massive new entertainment and sports center in downtown Sacramento. (Adriana Gianturco Saltonstall, et al. v. City of Sacramento (Sacramento Basketball Holdings, LLC, RPI) (3d Dist. 2014) 231 Cal.App.4th 837.)
Continue Reading What CEQA Gives, The Legislature Can Take Away: Third District Holds Special Legislation For Sacramento Kings Downtown Arena Project Is Constitutional, Upholds Trial Court’s Denial Of Preliminary Injunction
Supreme Court Finally Schedules Oral Argument In CEQA Categorical Exemption Case
By Arthur F. Coon on
At long last, the California Supreme Court has scheduled oral argument in the case of Berkeley Hillside Preservation, et al. v. City of Berkeley, Supreme Court Case No. S201116. By its long-awaited order issued October 31, 2014, the Court has now set argument in the matter for 9:00 a.m., December 2, 2014, in Los Angeles.
Continue Reading Supreme Court Finally Schedules Oral Argument In CEQA Categorical Exemption Case
Fall 2014 CEQA Roundup: Legislative and Regulatory Developments
By Arthur F. Coon on
A number of recent legislative and regulatory developments in or related to CEQA will impact public agencies, developers, and practitioners in the coming year. Some significant recent developments include:
SB 743 Implementation/New Ways to Measure Transportation Impacts under CEQA.
As previously discussed in this blog (see OPR Mulls Change in CEQA Traffic Metrics, OPR to Review Specific CEQA Guidelines Topics Proposed for 2014 Update Solicits Public Input, CEQA, Sausages, And the Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions), the Governor’s Office of Planning and Research is currently analyzing potential alternatives to the “level of service” metric for analyzing transportation impacts under CEQA, as mandated by SB 743. OPR has released a “preliminary discussion draft” of a new section 15064.3 of the CEQA Guidelines which sets forth the new metric, along with revisions to Appendix F identifying potential alternatives and mitigation measures.Continue Reading Fall 2014 CEQA Roundup: Legislative and Regulatory Developments
First District Holds CEQA’s Application To Public Agency’s Approval of Railroad Operations Is Preempted By Federal Law Despite Agency’s Agreement To Conduct CEQA Review And Preparation of EIR
By Arthur F. Coon on
The North Coast Railroad Authority (NCRA), a public agency established by state law, contracted with Northwestern Pacific Railroad Company (NWPRC) to allow NWPRC to conduct freight services on tracks controlled by NCRA. Petitioner groups Friends of The Eel River (FOER) and Californians for Alternatives to Toxics (CAT) filed mandate petitions under CEQA challenging NCRA’s EIR and approval of the operations. In affirming the trial court’s judgment denying the petitions, the First District Court of Appeal – in addressing what it termed “an issue of first impression in California” — followed uniform Federal law in holding the Interstate Commerce Commission Termination Act (ICCTA; 49 U.S.C. § 10101 et. seq.) grants the Surface Transportation Board (STB) exclusive jurisdiction over rail operations and broadly exempts state and local laws that impose “permitting or preclearance requirements (including environmental requirements)” on railroad operations or activities. Friends of the Eel River v. North Coast Railroad Authority (1st Dist., Div. 5, 2014) ___Cal.App.4th ___, 2014 WL 4809456 (opn. filed 9/29/14). In so holding that the ICCTA preempted CEQA’s application to a project involving railroad operations and thus barred Petitioners’ actions, the Court rejected Petitioners’ arguments that NCRA and NWPRC were estopped to assert federal preemption as a defense by NCRA’s agreement to conduct CEQA review, their positions in prior proceedings, and/or NCRA’s (later-rescinded) certification of an EIR.
Continue Reading First District Holds CEQA’s Application To Public Agency’s Approval of Railroad Operations Is Preempted By Federal Law Despite Agency’s Agreement To Conduct CEQA Review And Preparation of EIR