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In an opinion filed on August 24, and certified for partial publication on September 22, 2021, the Third District Court of Appeal reversed a judgment upholding Placer County’s EIR for a 94-acre resort development project in the Olympic (formerly Squaw) Valley area – site of the 1960 Winter Olympics near the iconic Lake Tahoe.  Sierra Watch v. County of Placer (Squaw Valley Real Estate, LLC, Real Party in Interest) (2021) ___ Cal.App.5th ___.  The published portions of the 51-page opinion found faults in the EIR’s description of the environmental setting and related water and air quality impact analyses, and errors in its analysis and mitigation of construction noise impacts.  Nearly half of the opinion remained unpublished; those portions of it (1) upheld the EIR’s climate change analysis (rejecting appellant Sierra Watch’s arguments challenging it as meritless, moot, or forfeited), (2) upheld most of the EIR’s wildfire impacts analysis (finding merit in one of appellant’s eight arguments, relating to underestimation of evacuation times), and (3) held the EIR’s traffic impacts analysis improperly relied on deferred mitigation.  (The unpublished portions of the opinion will not be discussed further in this post.)
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Continue Reading Let’s Get Regional: Third District Holds Olympic Valley Resort Project EIR’s Environmental Setting Description and Analysis Violated CEQA’s Requirement To Place Special Emphasis On Unique Regional Environmental Resources By Failing To Sufficiently Consider Lake Tahoe

Against the backdrop of another severe drought, water supply and impact issues continue to be points of contention for water agencies, water users, conservation groups, and the state.  And, of course, litigation over water is not limited to water rights and usage, but extends to related environmental review under CEQA.  On September 22, 2021, the Third District Court of Appeal issued a published opinion in Central Delta Water Agency v. Department of Water Resources (2021) __ Cal.App.5th __, disposing of several consolidated cases and analyzing operation of the state’s massive State Water Project (SWP) through a CEQA lens.  While the case does not break any new legal ground, it applies well-recognized CEQA principles to a lengthy and complex fact pattern involving multiple rounds of lengthy litigation, settlement, and EIR preparation.
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Continue Reading Third District Affirms CEQA And Attorneys’ Fees Judgments In Favor Of Department Of Water Resources In Monterey Agreement And Amendment Litigation

On September 13, 2011, I began the endeavor of writing Miller Starr Regalia’s CEQA Developments blog.  Ten years and 358 blog posts later, it continues to be a challenging and rewarding task.  Since my inaugural post (which can be viewed here) was a “top ten” list of CEQA litigation mistakes to avoid, I thought an appropriate tenth anniversary post might be a list of the ten most significant CEQA case law developments over the past decade.  My “top ten” list is definitely subjective, is limited to Supreme Court decisions, and (by its very nature) fails to include many important judicial developments.  Nonetheless, here it is (with the decisions listed in no particular order):
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Continue Reading A Decade of CEQA Developments

In a published decision filed August 17, 2021, the Fifth District Court of Appeal affirmed the trial court’s judgment directing issuance of a writ of mandate ordering Inyo County to vacate three resolutions of necessity that authorized its condemnation of three Owens Valley landfill properties, including appurtenant water rights, owned by the Los Angeles Department of Water and Power (LADWP).  City of Los Angeles etc. v. County of Inyo (2021) __ Cal.App.5th__. The County operates three landfills on the properties pursuant to leases from LADWP.  In the published part of the opinion, the Court of Appeal held that CEQA’s issue exhaustion requirement did not apply to LADWP’s challenge to the County’s exemption determinations because the County failed to provide adequate notice of them, thus depriving LADWP of an opportunity to be heard on the issue.  As a matter of law, the Court also held the County improperly relied on the existing facilities exemption for the project.
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Continue Reading Fifth District Holds Issue Exhaustion Not Required Where Agency Gave No Notice of Intent To Rely On CEQA Exemption Prior to Hearing, And Existing Facilities Categorical Exemption Does Not Apply to Unlined Landfills As A Matter of Law

In a published opinion filed August 19, 2021, the Second District Court of Appeal reversed a judgment of the Los Angeles County Superior Court that found fault with the EIR for an improvement project within the San Gabriel Mountains National Monument portion of the Angeles National Forest.  Save Our Access – San Gabriel Mountains v. Watershed Conservation Authority (2021) ___ Cal.App.5th ___.  The trial court had rejected plaintiff’s claims that CEQA required the EIR to analyze alternatives beyond the “no project” alternative, and that the project was inconsistent with applicable land use and management plans, but issued a writ requiring additional analysis of the project’s parking reduction “impacts.”  In resolving the ensuing appeals of both parties, the Court of Appeal reversed the judgment on the parking issue, finding that reduction in parking is a social not environmental, impact and that plaintiff had failed to identify any secondary adverse physical effects on the environment resulting from the reduction.  It affirmed the remainder of the judgment denying plaintiff’s other claims, and reversed the trial court’s fee award to plaintiff as compelled by its disposition of the merits.
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Continue Reading Second District Confirms Parking Is (Still) Not A CEQA Impact, Reverses Judgment That Found EIR For San Gabriel Mountains Wilderness Recreation And Preservation Project Deficient For Not Sufficiently Analyzing “Impact” Of Reducing Recreational Parking

Of all the major sports, baseball is the only one that is not played “on the clock.”  So it’s only fitting that the First District recently held the special legislation (AB 734; Pub. Resources Code, § 21168.6.7) enacted to provide fast-track judicial review benefits to the Oakland A’s baseball park/mixed use development project (Howard Terminal Project) likewise had no terminal time limit.  In a published decision filed August 10, 2021, the First District Court of Appeal affirmed the trial court’s judgment rejecting petitioners’ claim that the clock ran out on January 1, 2020 on Governor Newsom’s authority to certify the project as meeting the statute’s qualifying criteria.  Pacific Merchant Shipping Association, et al. v. Gavin C. Newsom, etc., et al. (Oakland Athletics Investment Group, LLC, Real Party in Interest) (2021) ___ Cal.App.5th ___.  The Court held that because AB 734 itself contains no deadline for certification, and the Legislature did not intend to incorporate the January 1, 2020 deadline from the Governor’s AB 900 Guidelines, Governor Newsom’s authority did not expire prior to his exercise of it, meaning that his subsequent February 11, 2021 certification (made shortly after the trial court’s favorable decision) was valid and effective.
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Continue Reading First District Holds CEQA Special Legislation For Oakland Howard Terminal Project (AB 734) Did Not Incorporate AB 900 Guidelines’ Deadline For Governor Certification; Governor Newsom’s Certification of Project As Qualifying For Expedited Judicial Review Was Timely

In a published opinion filed June 30, 2021, the First District Court of Appeal applied well-established CEQA statute of limitations rules, and a “persuasive dictum” from one of its prior decisions addressing the requirements for valid tolling agreements, to affirm a judgment dismissing a CEQA claim as time-barred.  The Court also upheld the dismissal for failure to state any viable cause of action as to all of plaintiffs’ other claims challenging respondent East Bay Regional Park District’s (“EBRPD” or the “Park District”) approval of a Memorandum of Understanding (“MOU”) with Pacific Gas and Electric Company (“PG&E”); the MOU set forth contractual terms of PG&E’s tree removal for safety purposes within its natural gas pipeline easements on EBRPD lands.  Save Lafayette Trees, et. al v. East Bay Regional Park District (Pacific Gas and Electric Company, Real Party in Interest) (1st Dist., Div. 3, 2021) ___ Cal.App.5th ___.  (In keeping with this blog’s practice, this post’s analysis will focus on the CEQA issues; it will not cover in detail the case’s significant non-CEQA holdings, which disposed of plaintiffs’ claims against EBRPD for alleged (1) violation of the City of Lafayette’s local Tree Protection Ordinance (on state law preemption grounds); (2) violation of EBRPD’s own Ordinance No. 38; and (3) due process, all as a matter of law.  For purposes of full disclosure, I represented real party PG&E in this litigation.)
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Continue Reading First District Addresses CEQA Statute of Limitations And Tolling Agreement Rules In Affirming Judgment Upholding EBRPD’s Approval of Tree Removal MOU With PG&E

In a partially published unanimous opinion filed June 16, 2021, authored by a jurist who is also a noted CEQA expert (Acting Presiding Justice Ronald Robie), the Third District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging El Dorado County’s mitigated negative declaration (MND) for and approval of the Newtown Road Bridge at South Fork Weber Creek Replacement Project.  Newtown Preservation Society, et al. v. County of El Dorado, et al. (3d Dist. 2021) ____ Cal.App.5th ____.  In the published portion of its opinion, the Court of Appeal held that petitioners/appellants erroneously framed the “fair argument” test in terms of the project having “potentially significant impacts on resident safety and emergency evacuation,” whereas the correct test is “whether the record contains substantial evidence that the project may have a significant effect on the environment or may exacerbate existing environmental hazards.”  It held appellants “failed to carry their burden of showing substantial evidence supports a fair argument of significant environmental impact in that regard.”  (In the unpublished portion of its opinion, which won’t be analyzed in further detail in this post, the Court held the County did not impermissibly defer mitigation, and it declined to consider two other arguments because they added nothing to the fair argument analysis and/or constituted new theories or arguments raised for the first time on appeal.)
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Continue Reading Flunking CEQA’s “Fair Argument” Test: Third District Affirms Judgment Upholding MND for El Dorado County Bridge Replacement Project, Rejects Arguments Based on Alleged Significant Impacts on Fire Evacuation Routes During Construction As Insufficient To Require EIR

In a published opinion filed February 9, 2021, the Sixth District Court of Appeal affirmed the trial court’s judgment dismissing a CEQA action challenging the EIR and project approvals for two development options (1.2 million square feet of light industrial, or 436,880 square foot data center/PG&E substation/728,000 square feet of light industrial) on a 64.5-acre fallow farmland site in the City of San Jose.  Organizacion Comunidad de Alviso v. City of San Jose (Microsoft Corporation, et al., Real Parties in Interest) (2021) 60 Cal.App.5th 783.  The Court of Appeal held that the trial court did not err in dismissing the action as time-barred after plaintiff OCA failed to timely join a necessary and indispensable real party in interest (Microsoft Corporation) within 30 days of the City’s filing of a second Notice of Determination (NOD) for the project.  (As full disclosure, I represented Microsoft in this action.)
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Continue Reading Sixth District Affirms Judgment Dismissing CEQA Action For Failure To Timely Join Indispensable Real Party Within Limitations Period Triggered By Filing of Second, Valid NOD; Court Rejects Plaintiff’s Arguments Based On Relation Back, Estoppel, and City’s Violation of Statute Requiring It To Mail Operative NOD

On May 20, 2021, Governor Newsom signed into law Senate Bill No. 7, the “Jobs and Economic Improvement Through Environmental Leadership Act of 20216” (the “Act”), which repealed and added Chapter 6.5 to Division 13 of the Public Resources Code (sections 21178 through 21189.3).  The new Act, which was immediately effective as an “urgency” statute, essentially modifies and reenacts former 2011 legislation that was repealed by its own terms on January 1, 2021.  Like the former leadership act, the new legislation authorizes the Governor, until January 1, 2024, to certify certain “environmental leadership development projects” (“leadership projects”) that meet specified requirements for streamlining benefits related to CEQA.  (Pub. Resources Code, §§ 21180, 21181.)  To qualify for CEQA streamlining benefits under the new Act, the Governor must certify a project as a leadership project before January 1, 2024.  (§ 21181.)
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Continue Reading CEQA Urgency Legislation Reenacts Modified Version of Environmental Leadership Act, Adds Certain Housing Development Projects As Eligible For Governor Certification And Streamlining Benefits