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In a lengthy published opinion filed May 21, 2013, the First District Court of Appeal reversed a judgment granting a writ of mandate and upheld as legally adequate under CEQA the Marin Municipal Water District’s EIR for development and construction of a desalination plant in Marin County.  (North Coast Rivers Alliance, et al. v. Marin Municipal Water District Board of Directors (1st Dist., Div. 4, 2013) 216 Cal.App.4th 614.  The Court rejected Petitioner North Coast Rivers Alliance’s (Alliance) challenges to the adequacy of the EIR’s analysis of the project’s aesthetic, land use, seismic, hydrology, water quality, biological resources, and cumulative GHG impacts, as well as its challenges to the EIR’s environmental setting description of baseline physical conditions and alleging that various of its mitigation measures were improperly deferred.  In light of its reversal of the judgment, the Court dismissed the District’s related appeal of a post-judgment order awarding attorneys’ fees to Alliance as moot.
Continue Reading CEQA School In Session: First District Reverses Judgment Invalidating EIR for Desalination Plant Project In North Coast Rivers Alliance

In its terse, no-nonsense opinion in Alliance For the Protection of the Auburn Community v. County of Placer, et al. (2013) 215 Cal.App.4th 25, ordered published on April 2, 2013, the Third District Court of Appeal affirmed a judgment entered after sustaining a demurrer to a CEQA action without leave on statute of limitations grounds…

In Golden Gate Land Holdings LLC v. East Bay Regional Park District (4/12/13 1st Dist., Div. 5) 215 Cal.App.4th 353, the First District Court of Appeal explored the scope and proper application of CEQA’s remedies provision – Public Resources Code § 21168.9 – in the context of an eminent domain action filed before completion of necessary environmental review for the condemning agency’s project.  In a partially-published opinion, the Court affirmed a judgment vacating the East Bay Regional Park District’s (“District”) CEQA exemption finding, and ordering it to prepare an EIR for a project to acquire and construct a segment of the Bay Trail on eight acres of shoreline property, while allowing the District’s eminent domain action to proceed.
Continue Reading First District Holds CEQA Remedies Provision Allows Park District’s Eminent Domain Action To Proceed Pending Preparation of Project EIR So Long As Property Not Actually Acquired

In a recently published opinion construing Government Code § 65457’s exemption from environmental review for a residential development consistent with a specific plan for which an EIR was previously certified, the First District Court of Appeal affirmed a judgment rejecting a challenge to the City of Dublin’s use of the exemption to approve AvalonBay Communities, Inc.’s (“AvalonBay”) 7.2-acre development within the larger Dublin Transit Village Center.  Concerned Dublin Citizens, et al. v. City of Dublin, et al. (2013 1st Dist., Div. 3) 214 Cal.App.4th1301.
Continue Reading Residential Project Exempt From CEQA Review Under Government Code Section 65457 As Consistent With Specific Plan For Which Program EIR Previously Certified; First District Also Holds New GHG Thresholds Do Not Constitute “New Information” Requiring Supplemental EIR For Specific Plan

Ruling from the bench at a March 29, 2013 hearing, Alameda County Superior Court Judge Frank Roesch found a key provision of an ambitious CEQA reform law championed by Senator Darrell Steinberg to be unconstitutional.  Specifically, Judge Roesch found “the provisions of AB 900 found in Public Resources Code [section] 21185 are so inconsistent with the constitutional mandates of where mandamus cases may be brought that it must be struck down as unconstitutional.”  A detailed written statement of decision explaining the judge’s reasoning is expected sometime later this month. 
Continue Reading AB 900 CEQA Reform Law Partially Struck Down

The Second District Court of Appeal upheld  the County of Santa Barbara’s Final Revised Environmental Impact Report for a 30-year conditional use permit (CUP) for the Diamond Rock mine project.  Save Cuyama Valley v. County of Santa Barbara (2013 2nd Dist., Div. 6), 213 Cal.App.4th 1059 (filed 1/10/13, modified 2/8/13).  The CUP allowed excavation of 500,000 tons of sand and gravel each year by real party Troesch Materials, Inc. from the often dry bed of the Cuyama River.  Save Cuyama Valley lost its writ of mandate challenge to the EIR, and the Court of Appeal affirmed.
Continue Reading Second District Rejects CEQA Challenge To EIR for Riverbed Sand And Gravel Mining Project, Upholds Santa Barbara County’s Discretion to Formulate Project-Specific Threshold of Significance, and Finds EIR’s Erroneous “Not Significant” Conclusion Nonprejudicial

After receiving three separate petitions for review, including petitions from real parties Wal-Mart Stores, Inc. and the City of Sonora, the California Supreme Court voted unanimously on February 13, 2013 to grant review of the Fifth District’s controversial decision in Tuolomne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores), Supreme Court Case No. S207173.  The League of California Cities had also requested depublication of the Fifth District’s decision while the petitions for review were pending.
Continue Reading Supreme Court Will Review CEQA Decision From Fifth District In Wal-Mart Citizen Initiative Case

Harmonizing CEQA’s rules and principles is, to say the least, not always easy, and is often quite challenging.  The relevant concepts are often in tension, or are so malleable that they can be argued or construed to conflict.  For example, environmental review must commence at the earliest “practicable” time, in order to make fully informed decisions at a project’s formative stages and avoid undue project “momentum” or “post-hoc rationalizations”; yet it should not occur so early that it would be “speculative” or not “meaningful” due to lack of sufficient data from a crystallized development project proposal.  To cite another example, a “project” refers to the “activity being approved,” but also to the “whole of an action” and not just individual discretionary permits that trigger CEQA review.  And, a “project approval” occurs at the lead agency’s earliest commitment to a “definite course of action” regarding a proposed project.  Fuzzy concepts like these can be difficult to apply, and supply ample fodder for CEQA litigation.  They tend to produce heavily fact-specific decisions offering unclear guidance to lead agencies and project proponents.
Continue Reading Fourth District Applies CEQA’s “Murky” Piecemealing Tests To Reject “Project Definition” Challenge To Park Development in Banning Ranch Conservancy

It is a fundamental precept of CEQA that it applies only to the discretionary approval of a project.  If an agency has no discretion to deny or shape the project to address environmental concerns, CEQA review would be a pointless and futile exercise, no matter what adverse environmental impacts of the project it might reveal.  Recent decisions continue to illustrate how an agency’s discretion under substantive law constrains CEQA’s applicability as a threshold matter, and how it can also affect the scope of required environmental review when CEQA does apply.
Continue Reading Recent Cases Show How CEQA’s Applicability And Substantive EIR Requirements Are Determined By Meaningful Agency Discretion