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.)
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
Litigation
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 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
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
By Arthur F. Coon on
Posted in Litigation, Statute of Limitations
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
CEQA Urgency Legislation Reenacts Modified Version of Environmental Leadership Act, Adds Certain Housing Development Projects As Eligible For Governor Certification And Streamlining Benefits
By Arthur F. Coon on
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
Is More Litigation the Remedy for Meritless CEQA Litigation? Fourth District Concludes Malicious Prosecution Action Against Losing CEQA Plaintiffs Survives Anti-SLAPP Motion
In an opinion filed April 23, and later certified for publication on May 13, 2021, the Fourth District Court of Appeal affirmed in part an order denying an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, and held that a malicious prosecution action could proceed against losing CEQA plaintiffs who had unsuccessfully challenged a Mitigated Negative Declaration (MND), but not against their attorneys. Jan Dunning, et al. v. Kevin K. Johnson, APLC, et al. (4th Dist. 2021) ___ Cal. App. 5th ___. While the merits of the malicious prosecution action have yet to be determined, the Court of Appeal’s ruling that the action could even proceed is itself significant given the daunting hurdle posed by the anti-SLAPP statute, and should give pause to project opponents who think that meritless CEQA litigation lacking probable cause and brought with malice can be pursued without potential consequence.
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Continue Reading Is More Litigation the Remedy for Meritless CEQA Litigation? Fourth District Concludes Malicious Prosecution Action Against Losing CEQA Plaintiffs Survives Anti-SLAPP Motion
Third District Affirms Judgment Upholding State Lands Commission’s Supplemental EIR For Desalination Plant Lease Modification, Rejects CEQA Claims That Commission Piecemealed Review And Should Have Assumed Lead Agency Status And Prepared A Subsequent EIR
In a lengthy opinion filed April 8, and ordered published on May 7, 2021, the Third District Court of Appeal affirmed a judgment rejecting a number of CEQA challenges to the California State Land Commission’s (Lands Commission) supplemental EIR for and related approval of a lease modification to facilitate a desalination plant in Huntington Beach. California Coastkeeper Alliance v. State Lands Commission (Poseidon Resources (Surfside) LLC, Real Party in Interest) (2021) ___ Cal.App.5th ___. In holding that the Commission properly elected to prepare a supplemental (rather than subsequent) EIR, did not err in refusing to assume lead agency status, and did not unlawfully piecemeal environmental review, the Court provided guidance on a number of significant CEQA issues.
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Continue Reading Third District Affirms Judgment Upholding State Lands Commission’s Supplemental EIR For Desalination Plant Lease Modification, Rejects CEQA Claims That Commission Piecemealed Review And Should Have Assumed Lead Agency Status And Prepared A Subsequent EIR
First District Affirms Judgment Rejecting CEQA and General Plan Consistency Challenges to Napa County’s EIR for Syar Quarry Expansion Project, Addresses Significant Exhaustion and Land Use Issues
By Arthur F. Coon on
Posted in Baseline, CEQA Guidelines, Exhaustion, Land Use, Litigation, Resources, Standard of Review, Standing, Water Supply
In an 85-page opinion filed March 25, and modified and certified for partial publication on April 23, 2021, the First District Court of Appeal affirmed the Napa County Superior Court’s judgment denying a writ petition challenging the County’s EIR and approvals for an expansion of Syar Industries, Inc.’s (Syar) aggregate mining operations at a quarry that has existed since the 1800s. Stop Syar Expansion v. County of Napa (1st Dist. 2021) ____ Cal.App.5th ____. The Court belatedly published about 25 pages of its lengthy opinion, which portions addressed basic CEQA principles, including standard of review and exhaustion principles, and the interplay of CEQA and general plan consistency issues.
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Continue Reading First District Affirms Judgment Rejecting CEQA and General Plan Consistency Challenges to Napa County’s EIR for Syar Quarry Expansion Project, Addresses Significant Exhaustion and Land Use Issues
Supreme Court Denies Review of And Depublishes Second District Refinery Project Case Addressing CEQA Baseline Issues
By Arthur F. Coon on
Falling more into the category of “spring cleaning” than “breaking news,” readers should note that a Second District decision, published last spring and covered in this blog, was ordered depublished by the California Supreme Court late last summer.
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Continue Reading Supreme Court Denies Review of And Depublishes Second District Refinery Project Case Addressing CEQA Baseline Issues
Failure to Pursue and Exhaust Administrative Appeal Remedy Results In Forfeiture of CEQA Challenge To Categorical Exemption Despite Lower Body’s Defective Hearing Notice
By Arthur F. Coon on
In a published opinion filed on February 1, 2021, in an action arising from plaintiffs/appellants’ (“plaintiffs”) “potpourri” of unsuccessful legal challenges to the City of San Francisco’s decision to remove a controversial public monument celebrating California’s pioneer era, the First District Court of Appeal upheld dismissal of a CEQA claim for failure to exhaust administrative remedies. Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470.
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Continue Reading Failure to Pursue and Exhaust Administrative Appeal Remedy Results In Forfeiture of CEQA Challenge To Categorical Exemption Despite Lower Body’s Defective Hearing Notice
Can a Responsible Agency Get A Second Bite At The CEQA Apple? First District Says “Sometimes, Yes,” Upholds Regional Water Board’s Imposition of Additional Mitigation On Flood Control Project Through “Independent” Porter-Cologne Act Authority Exercised Subsequent To Grant Of CWA § 401 Water Quality Certification Based On Lead Agency’s Unchallenged Final EIR
In a published opinion filed December 29, 2020, the First District Court of Appeal affirmed a judgment denying a petition for writ of mandate filed by the Santa Clara Valley Water District (District) challenging waste discharge requirements (WDRs) belatedly imposed by a responsible agency, the San Francisco Bay Regional Water Quality Control Board (Board), on lead agency District’s flood control project. Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199. The case involved highly unique facts, and a number of interesting legal issues concerning the Board’s authority under the Federal Clean Water Act (CWA), the state Porter-Cologne Act, and CEQA.
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Continue Reading Can a Responsible Agency Get A Second Bite At The CEQA Apple? First District Says “Sometimes, Yes,” Upholds Regional Water Board’s Imposition of Additional Mitigation On Flood Control Project Through “Independent” Porter-Cologne Act Authority Exercised Subsequent To Grant Of CWA § 401 Water Quality Certification Based On Lead Agency’s Unchallenged Final EIR