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.

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

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.

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

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.

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

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.

Continue Reading Supreme Court Denies Review of And Depublishes Second District Refinery Project Case Addressing CEQA Baseline Issues

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.

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

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.

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

“The life of the law has not been logic: it has been experience.” – Oliver Wendell Holmes, Jr., The Common Law (1881)

“CEQA discourse has become increasingly abstract, almost medieval in its scholasticism.” – former California Governor Edmund G. (“Jerry”) Brown, Jr.

by Arthur F. Coon

On November 24, 2020, the Fifth District Court of Appeal filed its partially published opinion in the latest installment of the long-running CEQA litigation over Fresno County’s approval of the Friant Ranch project.  Sierra Club v. County of Fresno (Friant Ranch, L.P., Real Party in Interest) (2020) 57 Cal.App.5th 979.  The litigation involves a 942-acre mixed-use development project (2500 residential units, 250,000 square feet of commercial space, 460 acres of open space) for which the Notice of Preparation (NOP) of the EIR was issued in 2007; it has generated an earlier appellate opinion (see my 6/16/14 post here) and a Supreme Court opinion (see my 12/28/18 post here) addressing important standard of review issues centered on the adequacy of the project EIR’s air quality impacts discussion.


Continue Reading Remedial Legal Logic: Fifth District Doubles Down On Split with Other Districts in Holding CEQA Doesn’t Allow Limited Writ Remedy of Partial EIR Decertification – But Does It Really Matter?

On November 9, 2020, the United States Court of Appeals for the Ninth Circuit issued a published opinion affirming a judgment on the pleadings, granted by Northern District Presiding Judge William Alsup, in a removed action filed by a group of taxicab drivers and companies against the City of San Francisco.  San Francisco Taxi Coalition, et al. v. City and County of San Francisco, et al. (9th Cir. 2020) ___ F.3d ___.  The action challenged the San Francisco Municipal Transit Agency’s (SFMTA) adoption of 2018 taxi regulations which favored recent, post-2010 owners of taxi permits (called “medallions,” and for which the recent owners paid $250,000 each) over longer-term permit owners by giving them priority for lucrative airport pickup rides.

Continue Reading A “Fare” Shake? Ninth Circuit Affirms Judgment On the Pleadings for San Francisco In Removed Action Challenging SFMTA’s 2018 Taxi Regulations, Remands for Consideration of Whether to Grant Plaintiffs Leave to Amend CEQA Claim

On November 10, 2020, the California Supreme Court – after briefly raising Petitioners’ hopes by extending the time to consider granting review – finally slammed the door shut on further litigation over a recent Fourth District Court of Appeal decision, issuing an order denying the three petitions for review filed by the parties, as well as a request for depublication filed by non-party City of Los Angeles.  Golden Door Properties v. S.C (County of San Diego) Case No. S264324.  The Court of Appeal’s Golden Door decision, which held lead agencies must retain and not destroy writings within the scope of CEQA’s mandatory and broadly inclusive administrative record statute (Pub. Resources Code, § 21167.6), notwithstanding assertedly contrary record-retention policies, will thus remain intact as published precedent.

Continue Reading Closing the “Golden Door”: California Supreme Court Denies Petitions for Review and Depublication Request in CEQA Administrative Record Case

On October 23, 2020, the California Supreme Court issued an order extending until December 7, 2020, or the date upon which review is either granted or denied, the time for granting or denying review in Golden Door Properties, LLC, et. al. v. Superior Court (County of San Diego et. al., Real Parties in Interest) (4th Dist. 2020) ___ Cal.App.5th ___.  The Court of Appeal’s decision, originally published on July 30, and modified upon denial of rehearing on August 25, 2020, held that a lead agency is required to retain, and may not  destroy, writings within the scope of CEQA’s mandatory and broadly-inclusive administrative record statute, Public Resources Code § 21167.6.

Continue Reading Keeping the “Golden Door” Cracked Open: California Supreme Court Extends Period to Consider Review of CEQA Administrative Record Case