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In a published decision filed September 24, 2014, the Third District Court of Appeal (per Justice Robie) held that CEQA’s definition of a “public agency” that is subject to its requirements (see Pub. Resources Code, § 21063) applies only to governmental bodies, not individuals.  Governor Brown was therefore not subject to CEQA compliance as a prerequisite to his concurrence in the Secretary of the Interior’s (“Secretary”) federal determination made under the Indian Gaming Regulatory Act (“Indian Gaming Act”; 25 U.S.C. § 2701 et seq.) that a new Indian gaming establishment in Madera County would not be detrimental to the surrounding community.  Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (NP Fresno Land Acquisitions LLC, RPI) (3d Dist. 2014) 229 Cal.App.4th 1416, No. C074506.
Continue Reading Governor Brown Is Not CEQA “Public Agency,” Holds Third District In Indian Casino Case

In a published opinion filed August 29, 2014, the Fifth District Court of Appeal affirmed a judgment granting a writ of mandate and finding that the City of Fresno erred in approving a mitigated negative declaration (MND) for an infill project involving the demolition of two houses and construction of 14 duplexes on a 1.29-acre lot in downtown Fresno.  Citizens for the Restoration of L Street v. City of Fresno (FFDA Properties, LLC, et al., Real Parties in Interest) (5th Dist. 2014) 229 Cal.App.4th 340, Case No. F066498.  In resolving the cross-appeals before it, the Court of Appeal agreed with the trial court in holding that:  (1) the City violated CEQA’s procedural requirements by allowing – as required by its Municipal Code – its Historic Preservation Commission (HPC) to act as its decisionmaking body in approving the demolition permit for the project while not concurrently delegating CEQA review authority to that body; and (2) the City properly applied the “substantial evidence” – rather than the “fair argument” – standard of review in determining that the demolished houses were not “historical resources” and therefore not part of the “environment” protected by CEQA.
Continue Reading Fifth District Reaffirms Its CEQA Historicity Rules in Citizens for the Restoration of L Street v. City of Fresno

On August 15, 2014, the Contra Costa Times reported on a wide-ranging interview of California Governor Jerry Brown conducted by the Mercury News opinion and editorial board on that same date.  While largely devoted to other topics (such as the CPUC scandal, Brown’s twin-tunnel Delta plan, and the state budget), the article interpreted Brown’s responses to questions asked about CEQA as “suggest[ing] that comprehensive reform of the California Environmental Quality Act, long one of his top priorities, is all but dead.”
Continue Reading Governor’s Passion For Legislative CEQA Reform Has Waned, Contra Costa Times Reports After Mercury News Interview

In a concise 15-page opinion filed August 7, 2014, the California Supreme Court reversed the Fifth District Court of Appeal’s judgment which had held that a city may not adopt a voter-sponsored initiative with potential environmental impacts unless it conducts a CEQA analysis.  Tuolumne Jobs & Small Business Alliance v. The Superior Court of Tuolumne County (Wal-Mart Stores, Inc., et al., Real Parties In Interest (2014) 59 Cal.4th 1029, Case No. S207173.  (For relevant case background, my initial post analyzing, criticizing, and predicting that the Supreme Court would grant review of the Fifth District’s decision can be accessed at the following link: “Impossible and Useless CEQA Review Is Required If City Opts Under Elections Code to Adopt Legislative Project Approvals Proposed by Qualified Citizen Initiative Petition – Fifth District’s Holding In Walmart Rejects Fourth District Precedent And Creates Split In Authority,” by Arthur F. Coon, posted November 8, 2012.)
Continue Reading California Supreme Court Holds CEQA Inapplicable To City’s Adoption Of Qualified Voter Initiative Approving Wal-Mart “Supercenter” Project

While CEQA actions are statutorily designed as special proceedings with priority over other civil actions, and thus mandated to be heard and resolved expeditiously, when complex or controversial projects with dedicated opposition are involved this salutary statutory scheme sometimes goes off track.  A prominent example is the ongoing CEQA challenge to the environmental review for the Central Valley to San Francisco route of the High-Speed Rail Project, which involves lawsuits that have stretched over parts of 7 years and are not yet concluded — although a recent appellate decision appears to have brought them a step closer to the driving of the final CEQA litigation spike.
Continue Reading Of High Speed Rails and Litigation Snails: The Train Rolls On As Third District Rejects Additional CEQA Challenges To High-Speed Rail Authority’s Revised Final Program EIR Analyzing Central Valley To San Francisco Bay Area Track Route

In a decision filed June 6, but not certified for publication until July 2, 2014, the Sixth District Court of Appeal affirmed the trial court’s judgment upholding the City of San Jose’s eighth addendum to its Airport Master Plan against plaintiff Citizens Against Airport Pollution’s (CAAP) CEQA challenge.  Citizens Against Airport Pollution v. City of San Jose, et al., 227 Cal.App.4th 788 (6th Dist. 2014).
Continue Reading Eight Is Not Enough: CEQA Challenge To Eighth Addendum To San Jose International Airport Master Plan EIR Is Rejected By Sixth District, Which Holds Plan Modifications To Accommodate Projected Decreases In Air Cargo and General Aviation Are Not “New Project” Requiring Supplemental or Subsequent EIR

In a July 3, 2014 published decision more notable for the practical importance of the water rights involved than the CEQA law applied, the Fifth District Court of Appeal rejected the CEQA challenges of various environmental groups and a tribe.  North Coast Rivers Alliance, et al., v. Westlands Water District, et al., 227 Cal.App.4th 832 (5th Dist. 2014).  The lawsuit sought to overturn statutory and categorical exemptions claimed for six 2-year interim renewal contracts between the U.S. Bureau of Reclamation (USBR) and several water districts (i.e., Westlands Water District and its related distribution districts) for Central Valley Project (CVP) water to be delivered, received and distributed within the district’s 600,000+ -acre boundaries.
Continue Reading Fifth District Upholds CEQA Exemptions For Ongoing Pre-CEQA Projects And Continued Operation of Existing Facilities To Reject Challenge To Two-Year Interim CVP Water Contract Renewals

Earlier this month, I posted an entry regarding the latest legislative effort at meaningful CEQA reform.  See New CEQA Reform Bill (SB 1451) Proposes Positive Changes That Would Reduce “Late Hit” Document Dumps and Extend Indefinitely Current Standing Requirements For After-Formed Organization Plaintiffs, by Arthur F. Coon, posted May 1, 2014.  I was genuinely enthused about SB 1451’s content and its prospects, thoughts I shared at length with a Daily Journal reporter who contacted me shortly after my post in connection with a story she was writing on the proposed law.

Unfortunately, the prospect of meaningful legislative CEQA reform offered by SB 1451 was short-lived.  Less than a week after my post, the bill’s author, Senator Hill, requested cancellation of a May 6 hearing on the bill that had been set before the Senate Committee on the Judiciary.  My Daily Journal reporter contact tabled her story; for all intents and purposes, it appears that SB 1451 is “dead in the water.”  A contact in the environmental consulting industry relates that a trusted source has advised that political pressure from organized labor interests killed the bill.  This outcome is certainly not surprising, but it is nonetheless disappointing to proponents of meaningful and common-sense CEQA reform.Continue Reading CEQA “Late Hit” Reform Bill (SB 1451) Is Withdrawn By Author

It’s that time of year again – business mixers, the Giants in first place in the NL west, the school year winding down, the NBA and NHL playoffs in full swing, coastal whale migrations, California bursting with beautiful weather, flora and fauna … and, of course, the Spring CEQA roundup!  So here goes the latest potpourri of CEQA developments, big and small:

*           New Rules of Court address Environmental Leadership development project litigation.  On April 25, 2014, and as required by 2013 legislation (SB 743) the Judicial Council adopted new Rules of Court governing and aimed at significantly expediting litigation of CEQA challenges to a select class of “green” mega’ projects, i.e., those certified by the Governor as “environmental leadership development projects.”  The ambitious new rules, which seek to shave years off the litigation timeline for CEQA suits challenging such projects, will become effective July 1, 2014.  They consist of the adoption of Cal. Rules of Court, rules 3.1365, 3.2200, 3.2220-3.2237, 8.700-8.705; renumbering and amendment of rules 3.1366 and 3.1367 as rules 3.2206 and 3.2207; renumbering of rules 3.1365 and 3.1368 as rules 3.2205 and 3.2208; amendment of rule 8.104; and repeal of rule 8.497.Continue Reading Spring 2014 CEQA Roundup

A CEQA reform bill (SB 1451) introduced and authored by seven (7) Democrats (Senators Correa, Galgiani, Hill, Hueso, Roth, and Steinberg, and Assembly Member Mullin) would amend Public Resources Code § 21177 to heighten standing requirements for CEQA plaintiffs by requiring them to raise issues of alleged CEQA noncompliance much earlier in the administrative process to avoid forfeiting the right to later sue on such issues.
Continue Reading New CEQA Standing Reform Bill (SB 1451) Proposes Positive Changes That Would Reduce “Late Hit” Document Dumps And Extend Indefinitely Current Standing Requirements For After-Formed Organization Plaintiffs