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As we move past summer, into fall, the “back-to-school,” and football seasons, and toward daylight savings time – and a possible shutdown of the federal government – it is time to reflect and take stock of the really important things . . . like recent CEQA developments of interest:

  • SB 743 signed by Governor Brown.

On September 27, 2013, and as expected, Governor Brown signed into law SB 743, the year’s only significant, albeit incremental, “CEQA reform” measure.  For a summary of SB 743’s substantive content – as well as what the new law doesn’t do – see “CEQA, Sausages, And The Art of The Possible:  A Closer Look at SB 743’s General CEQA Reform Provisions” by Arthur F. Coon and Matthew C. Henderson, posted on September 16, 2013.Continue Reading Recent CEQA Developments In The Legislature And Courts

In a flurry of eleventh-hour activity following Senate President Pro Tem Darrell Steinberg’s withdrawal of SB 731 from consideration (see 9/13/13 post “Steinberg Drops Statewide CEQA Reform Bill (SB 731) After Meeting with Governor Brown,” by Arthur F. Coon), both houses of the California Legislature passed an amended Senate Bill 743 on September 12, 2013.  SB 743 enacts a number of changes to the California Environmental Quality Act (“CEQA”; Pub. Resources Code, § 21000, et seq.) that are designed to “modernize” the statute and streamline some of its procedures for certain projects.  Demonstrating that politics is “the art of the possible,” Senator Steinberg was successful, in the waning hours of the legislative session, in importing several generally-applicable CEQA reform provisions from former SB 731 into SB 743, whose primary focus theretofore had been easing the CEQA review path for a new Sacramento Kings arena.  After this bit of legislative “sausage making” (which is expected to be followed by Governor Brown’s signature), the revised SB 743 includes the following generally-applicable CEQA provisions:
Continue Reading CEQA, Sausages, And The Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions

Proposed legislative CEQA reform for 2013 has gone out, not with a bang, but with a … dribble?  After meeting with Governor Brown, on September 11, 2013, Senator Darrell Steinberg abruptly withdrew his much-ballyhooed CEQA “reform” bill, SB 731, from consideration, canceling a hearing set before the Committee on Local Government, and threw his support behind a much different CEQA bill, SB 743, which paves the way for a new downtown Sacramento Kings arena.
Continue Reading Steinberg Drops Statewide CEQA Reform Bill (SB 731) After Meeting With Governor Brown

In a partially published opinion filed August 19, 2013, the Third District Court of Appeal reversed a judgment denying a writ petition challenging a Wal-MartSupercenterthat would replace an existing Wal-Mart store.  Friends of Oroville v. City of Oroville (8/19/13) 219 Cal.App.4th 832, No. C070448.  In the published portion of its opinion, the Court held the City’s EIR inadequately analyzed the project’s GHG emissions because substantial evidence did not support its finding that such emissions would be less than significant after mitigation.
Continue Reading Third District Holds CEQA Analysis of GHG Emissions Was Inadequately Quantified To Support EIR’s Mitigation Conclusion in Friends of Oroville

In a published opinion filed August 13, 2013, the First District Court of Appeal, Division Five, reversed a trial court judgment that had invalidated the Bay Area Quality Management District’s (BAAQMD) adoption of 2010 “CEQA Air Quality Guidelines” because BAAQMD did not conduct CEQA review of their potential environmental impacts.  (California Building Industry Association v. Bay Area Air Quality Management District (1st Dist., Div. 5, 2013) ___ Cal.App.4th ___, 2013 WL 4083221.)  In reinstating the 2010 Guidelines, which set forth new thresholds of significance for GHGs, toxic air contaminants (TACs), and PM2.5 (particulate matter 2.5 microns or less in diameter), the Court of Appeal held that a public agency’s promulgation of thresholds of significance pursuant to the procedures of the CEQA Guidelines is not itself a “project” subject to CEQA review.  In so holding, and in rejecting the other arguments offered by plaintiff California Building Industry Association (CBIA) in support of the judgment, the Court touched on several significant CEQA issues, and in the process overturned a substantial CCP §1021.5 attorneys’ fee award to CBIA since it was no longer a successful party.
Continue Reading Adoption of CEQA Thresholds of Significance Is Not A CEQA “Project,” First District Holds In Reinstating BAAQMD’s 2010 Air Quality Guidelines

In a partially-published opinion filed July 25, 2013, the First District Court of Appeal reversed the trial court’s judgment denying a writ petition with directions that the County of Mendocino prepare and circulate a supplemental EIR for Granite Construction Company’s (Granite) terrace mining/sand and gravel quarry project adjacent to the Russian River near Ukiah.  (Masonite Corporation Dist. v. County of Mendocino, et al (7/25/13, First Dist., Div. 3) 218 Cal.App.4th 230.)  The opinion was mostly unpublished, with the noteworthy exception of a portion addressing mitigation for loss of prime farmland, which squarely held that Agricultural Conservation Easements (ACEs) constitute legally-feasible mitigation for the direct loss of prime farmland.
Continue Reading First District Publishes Significant CEQA Decision On Legal Feasibility Of Mitigation For Prime Farmland Losses In Masonite Corporation v. County Of Mendocino

One of the most vexing issues arising under CEQA, particularly in cases of projects involving public-private partnerships or projects requiring public agency financial assistance, is the question of when project approval occurs.  Like pregnancy, project approval is an all-or-nothing condition with profound consequences – yet the law provides no “bright line” test for when project approval, and the concomitant requirement of completed CEQA review, occurs.
Continue Reading Navigating Between CEQA’s Scylla and Charybdis: First District Applies Save Tara Analysis and Rejects Claims of Improper Project “Preapproval” in Neighbors For Fair Planning v. City and County of San Francisco

Nothing says “battle royal” quite like pitting several of California’s heavyweight environmental laws against one another in a “winner-take-all” litigation brawl.  The Sixth District Court of Appeal recently presided over such a conflict in Save Panoche Valley v. San Benito County (6/25/13) 217 Cal.App.4th 503, a published decision in which it affirmed a judgment rejecting CEQA and Williamson Act-based challenges to the County’s EIR and findings approving a large solar power plant project on 4,885 acres of cattle grazing land in San Benito County.
Continue Reading The New Range Wars: CEQA and the Williamson Act Are Deployed To Fight Global Warming Solutions In Save Panoche Valley

In a partially-published opinion, the Fifth District Court of Appeal held that the Merced County Planning Commission’s failure to mention in its posted agenda that it was considering adoption of a mitigated negative declaration (MND) in connection with a minor subdivision approval violated the Brown Act.  (San Joaquin Raptor Rescue Center v. County of Merced, et al. (5th Dist. 5/31/13) 216 Cal.App.4th 1167.  Key points of the published portion of the opinion include:
Continue Reading CEQA Determination Is Item of Business That Must Be Agendized Under Brown Act, Fifth District Holds

There has been a lot of buzz around proposed SB 731, which is working its way through the State Legislature and will be heard Monday, May 20, in the Senate Appropriations Committee. Notwithstanding the hype and hopes, I think Jerry Brown probably had it right when he predicted last month that CEQA reform would not be accomplished in 2013.  While the debate has been vigorous, the political stars are simply not aligned to do what needs to be done to modernize and streamline the venerable 43-year old law.
Continue Reading The Direction of CEQA “Reform” Under Proposed SB 731: One Step Up and Three Steps Back?