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On November 26, 2013, the California Supreme Court by unanimous vote granted review of a fundamental legal issue that repeatedly has surfaced in recent years in both published appellate opinions and the legislative debate over CEQA reform:  Does CEQA ever operate “in reverse”?  That is, is CEQA review confined to an analysis of a proposed project’s impacts on the existing environment, or does it also require analysis of the existing environment’s impacts on the proposed project and its future occupants and users?

The case is CBIA v. BAAQMD (Supreme Court Case No. S213478), a decision in which the First District Court of Appeal rejected the CBIA’s facial challenge to BAAQMD’s 2010 Thresholds of Significance and Guidelines for Toxic Air Contaminants, and at the same time called into question the “continued vitality” of a line of appellate cases holding that the “reverse application” of CEQA is inconsistent with its language and intent. For my analysis of the Court of Appeal’s opinion, which has been vacated by the Supreme Court’s grant of review, see “Adoption of CEQA Thresholds of Significance Is Not A CEQA “Project,” First District Holds In Reinstating BAAQMD’s 2010 Air Quality Guidelines,” by Arthur F. Coon, posted on August 16, 2013.Continue Reading Supreme Court Will Review “CEQA-In-Reverse” Issue In CBIA Case Challenging 2010 BAAQMD Air Quality Guidelines

In a decision recently ordered published, the Fourth District Court of Appeal added to the growing progeny of Save Tara, and affirmed the trial court’s judgment denying the City of Irvine’s writ petition seeking to compel Orange County to prepare an EIR for its submittal of an application for state funding to expand a jail facility.  City of Irvine v. County of Orange (4th Dist., Div. 3, 2013) 221 Cal.App.4th 846.  County’s funding application under the State’s AB 900 process did not commit it to a definite course of action regarding the jail expansion, however, and was merely a preliminary funding step; it was therefore not the “approval” of a project requiring CEQA review.
Continue Reading All About “Commitment”: CEQA Review is Not Triggered By Orange County’s AB 900 Application For State Funding To Expand Existing Jail Facility, Which Was Not A Project Approval

The EIR has long been the judicially-proclaimed “heart of CEQA” because it represents the culmination of the statute’s environmentally-protective purposes and objectives.   Yet the legal “expiration date” for the document embodying CEQA’s highest purposes is often subject to debate and confusion.  A public agency’s reliance on an “old” EIR is inherently fraught with the risk of legal challenge by project opponents.  But, as a recent First District decision reminds, such reliance may be perfectly proper under CEQA’s applicable rules, which focus in this context on not “reinventing the wheel” – the “wheel” being the EIR – without very good reason to do so; they also defer to the lead agency’s reasoned decision in this regard.
Continue Reading First District Rejects CEQA Challenge To City of Napa’s Reliance On Prior General Plan EIR For Housing Element Update Project

In a recent decision extensively analyzing and applying CEQA’s rules on alternatives analysis, recirculation, and a petitioner’s burden to show agency error, the Third District Court of Appeal affirmed the Nevada County Superior Court’s judgment denying a writ petition challenging a commercial real estate project.  South County Citizens for Smart Growth v. County of Nevada (3d Dist., 10/8/13) 221 Cal.App.4th 316.

Plaintiff “Smart Growth” challenged County’s approval of the 20-acre Higgins Marketplace Project being developed by Katz Kirkpatrick Properties (KKP) in southwestern Nevada County.  The Draft EIR (DEIR) analyzed subdivision of the site into 10 parcels, with approximately 80,000 square feet of retail uses, two fast food restaurants, 482 parking stalls, reservation of 5 acres for future development of 42,000 square feet of light industrial and office uses, and preservation of about 3.26 acres of wetlands with a 25-foot buffer.  It identified three significant and unavoidable impacts – two traffic impacts and one cumulative air quality impact – and found all other impacts would be less than significant with mitigation.  It analyzed four (4) project alternatives, including the CEQA-mandated no project alternative; a restricted turning access alternative to try to avoid SR 49 impacts; a business park alternative under current general plan designations (designed to reduce traffic and noise); and a redesign/reduced density alternative which would eliminate 6,500 feet of commercial development, relocate the fast food restaurants, and provide greater buffers to reduce biological, noise, visual and traffic impacts.Continue Reading Third District Holds CEQA Does Not Require Recirculation Based On Staff-Recommended Alternative Raised After Preparation of Final EIR

The Sixth District Court of Appeal, in a published decision filed September 30, 2013, reversed a grant of summary judgment in favor of defendant City of San Jose in an action challenging its “Envision San Jose” comprehensive general plan update.  California Clean Energy Committee v. City of San Jose (6th Dist. 2013) 220 Cal.App.4th 1325.  The trial court found plaintiff CCEC failed to exhaust administrative remedies (as required to file a mandamus action challenging the general plan EIR) because it did not file an administrative appeal of the City planning commission’s certification of the EIR (as required by the City’s Municipal Code).  The Court of Appeal held this was in error because under CEQA’s delegation rules the planning commission couldn’t validly make a final EIR certification decision that could be appealed to the Council.
Continue Reading CEQA Standing and Exhaustion Rules Applied In Action Challenging City of San Jose’s General Plan Update

My October 31 presentation with David Ivester for the Bay Planning Coalition on recent CEQA developments brought home the fact that while there has been only partial and incremental legislative reform (in the form of SB 743), the appellate Courts have remained very active, publishing roughly 30 decisions over the past year.  I concur with David that legislative reform in 2014 (an election year) is unlikely, so it appears we will have to continue to look to the judiciary as the principal agent for change – for better or for worse.  David’s opening anecdote about his conversation with an intelligent, non-lawyer friend underscoring the need for CEQA reform was compelling –  something just seems wrong if, after a legion of environmental professionals (including agency staff, planners, environmental consultants, and legal counsel) has thoroughly vetted a development project and its environmental review, it still stands only a 50% chance of prevailing if challenged in Court.
Continue Reading “The Year in CEQA: A Look Back”

On October 16, 2013, 60 days after the request was submitted, the California Supreme Court denied Infill Builders’ request to depublish Citizens for Ceres v. Superior Court (5th Dist. 2013) 217 Cal.App.4th 889, a decision concerning the scope of the “common interest” exception to privilege waiver by disclosure in CEQA cases.  Ceres, which has been heavily criticized by the CEQA/land use bar, holds that while CEQA’s administrative record statute (Pub. Resources Code, § 21167.6) does not impliedly abrogate privilege, any privilege (including attorney-client and work product protection) is waived as to documents shared between the lead agency’s and project developer’s counsel at any time prior to project approval.  This holding conflicts with the holding and reasoning of the Third District Court of Appeal in California Oak Foundation v. County of Tehama (3d Dist. 2009) 174 Cal.App.4th 1217, 1222-1223, which held that the common interests of the agency and the developer – for example, in producing a legally-sufficient EIR that will withstand legal challenge – could protect reasonably necessary disclosures of privileged information between them from being deemed a waiver.
Continue Reading Depublication of Controversial CEQA Common Interest Case Denied by Supreme Court, Leaving Troublesome Split of Authority

The important legislative policy of expediting CEQA litigation sometimes inevitably conflicts with the policy favoring resolution of cases on their merits.  This conflict is never more sharp than when a CEQA plaintiff’s counsel seeks relief from a default or mistake that would otherwise terminate a CEQA action in the defendant’s favor.  In the recently-published decision in Comunidad En Accion v. L.A. City Council (2nd Dist., Div. 8, 9/20/13) 219 Cal.App.4th 1116, the Second District Court of Appeal resolved such a conflict by reversing the dismissal of a CEQA action and holding the trial court abused its discretion by denying discretionary relief under Code of Civil Procedure § 473 for counsel’s failure to timely comply with CEQA’s mandatory hearing request requirement due to an “excusable” failure to calendar the deadline.  Due to reasoning that seems to conflict with that of other decisions involving CEQA’s mandatory hearing request and statute of limitations provisions, and the case’s unusual posture – i.e., reversing a trial court’s discretionary CCP § 473 decision under the “abuse of discretion” standard – the decision is noteworthy.
Continue Reading Plaintiff’s Failure to Request CEQA Hearing Within 90 Days of Filing Petition Due to Lead Attorney’s “Excusable” Calendaring Error Warrants Discretionary Relief Under CCP § 473, Holds Second District

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 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