Mitigation

Subscribe to Mitigation via RSS

On October 7, 2024, the First District Court of Appeal (Div. 5) issued a 6-page “Order Denying Respondent’s Petition for Rehearing and Modifying Opinion [No Change in Judgment]” (the “Order”) in Sunflower Alliance v. California Department of Conservation, et al. (Reabold California, LLC) (2024) 104 Cal.App.5th 1135, a case upholding a CEQA Guidelines Class 1 categorical exemption for an oil well conversion project (my 9/9/24 post on which can be found here).  The main thrust of the Order, a copy of which can be reviewed here, is to bolster the Opinion’s refutations of certain of Respondent Sunflower Alliance’s arguments, including its argument made on rehearing that the Secretary cannot have intended for categorical exemptions to call for an “early stage” assessment of environmental impacts; the Court called Sunflower’s position “wrong,” citing numerous examples of categorical exemptions calling for such assessments, which it noted function as limits on the application of the exemptions, and are also consistent with the agencies’ duty to consider environmental impacts when evidence in their records suggests an exception to the exemption may apply.Continue Reading First District Denies Rehearing, Modifies Opinion in CEQA Guidelines Class 1 Categorical Exemption Case With No Change in Judgment

In an opinion filed August 27 and later ordered published on September 24, 2024, the Fifth District Court of Appeal affirmed a judgment denying a writ petition that challenged the State Air Resources Board’s (CARB) adoption of the Advanced Clean Trucks Regulation (Regulation) on CEQA and Administrative Procedures Act (APA; Gov. Code, § 11340 et seq) grounds.  California Natural Gas Vehicle Coalition v. State Air Resources Board (2024) 105 Cal.App.5th 304.  The Court held that CARB’s in-depth study of three alternatives (including the “no project” alternative) constituted a reasonable range for CEQA purposes; it further held that CARB’s alternative analysis wasn’t deficient for rejecting without in-depth study, as infeasible for policy reasons, an alternative proposed by opponents of the Regulation that would have applied a low-NOx vehicle credit to sales mandates applicable to zero-emission vehicles (ZEV).  Based on the same reasoning, the Court held CARB also need not have considered the now-NOx vehicle credit as a mitigation measure for the acknowledged significant near-term air quality impacts of the Regulation.  (The Court also rejected appellant Coalition’s APA arguments in a portion of its opinion that won’t be further discussed in this post.)  Finally, the Court held on CARB’s affirmative appeal that any error with respect to the admission of a specific “white paper” document into the administrative record was nonprejudicial, and therefore harmless, as it did not impact either the trial court’s or its own analysis.Continue Reading Fifth District Affirms Judgment Rejecting CEQA/APA Challenges to CARB’s Approval of ZEV Truck Sales Mandate Regulation; Holds Alternatives and Mitigation Analyses Need Not Include Low-NOx Vehicle Credit Contrary to Project’s Underlying Fundamental Purpose

In an opinion filed August 15, and modified and certified for publication on September 13, 2024, the Fourth District Court of Appeal (Div. 2) resolved cross-appeals from a judgment granting a limited writ by reversing with directions to deny the writ.  The Court thus found the City of Upland’s (City) Mitigated Negative Declaration (MND) for approvals of a 201,096-square foot parcel-delivery warehouse project legally adequate under CEQA.  Upland Community First v. City of Upland (2024) 105 Cal.App.5th 1.  In doing so, the Court not only upheld an environmental document (an MND) that is, in general, notoriously difficult to defend under CEQA’s applicable “fair argument” standard of review, but also upheld, as supported by substantial evidence: (1) City’s application of a stringent 3,000 MTCO2 e/year quantitative threshold of significance to the project’s GHG emissions, and (2) City’s determination that the project’s “net-over-baseline” GHC emissions would not exceed that threshold – despite some effort being required to “connect the dots” regarding the record evidence to show the City’s math in reaching that determination.  While ultimately irrelevant to the outcome in their favor, the Court also held that City and the project’s developer (Bridge) forfeited – by failing to timely raise – their alternative argument that the project’s GHG emissions were insignificant based on a different, qualitative “threshold,” i.e., City’s finding that the project was consistent with its Climate Action Plan (UCAP).  Finally, the Court rejected all of project opponent UCF’s appellate challenges to City’s MND based on allegedly faulty traffic and VMT analyses.Continue Reading Fourth District Reverses Judgment Granting Writ and Holds City of Upland’s MND For Warehouse Project Satisfies CEQA; Rejects Arguments That City’s Choice and Application of Quantitative GHG Significance Threshold Lacked Substantial Evidence Support

In a published decision filed September 6, 2024, the First District Court of Appeal (Div. 5) reversed the trial court’s judgment granting a writ of mandate and upheld the use of CEQA’s Class 1 categorical exemption (CEQA Guidelines, § 15301) by the California Department of Conservation’s Division of Geologic Energy Management (“CalGEM”) in approving a project to convert an oil well that previously pumped oil and water from a deep aquifer into an injection well that would pump excess water produced from oil extraction back into that aquifer.  Sunflower Alliance v. California Department of Conservation, et al. (Reabold California, LLC, Real Party in Interest) (2024) 104 Cal.App.5th 1135.  Because the project involved only minor physical alterations to the well, and the factual record showed the environmental risks from the well’s changed use – i.e., injecting water into the aquifer instead of pumping it out – were negligible, the project fell within the exemption. Continue Reading First District Holds CEQA Class 1 Categorical Exemption Applies To Approval of Project Converting Existing Oil Well Into Produced-Water Injection Well Because Changed Use Presents “Negligible” Risk of Environmental Harm

In an opinion filed on July 24, and later ordered published on August 19, 2024, the Second District Court of Appeal (Div. 4) affirmed the trial court’s judgment denying a writ petition challenging actions taken by the Los Angeles City Planning Commission (“CPC”) to facilitate and implement three components of the Westside Mobility Plan (the “Mobility Plan”). Westside Los Angeles Neighbors Network v. City of Los Angeles (2024) 104 Cal.App.5th 223.Continue Reading Second District Rejects CEQA Challenges To LA City Planning Commission’s EIR Certification and Categorical Exemption Determination For Multi-Component Project Implementing Westside Mobility Plan, Declines To Reach Significant Issues Forfeited By Appellant

Miller Starr Regalia’s developer clients are always keenly interested in efficient and defensible CEQA compliance, which entails effective utilization of legislative and regulatory exemptions and streamlining options where the same are available for particular projects. My partner, Carolyn Nelson Rowan, the incoming Editor-in-Chief of the Miller & Starr California Real Estate 4th treatise, and I took a detailed look at recent judicial application of the statutory CEQA exemption implemented by CEQA Guidelines §15183, which can provide either a complete exemption or streamlining benefits for projects consistent with the development density/intensity established by existing community plans or zoning policies reviewed by a prior EIR. Our article on the same, “Hilltop Group, Inc. v. County of San Diego: Throwing a Judicial Monkey Wrench Into the Spin Cycle of Local Agency CEQA Laundering?” was published in the May 2024 issue of the Miller & Starr Real Estate Newsalert, and can be found here.Continue Reading Recent Judicial Developments in CEQA Exemptions and Streamlining

In a partially published opinion filed March 29, 2024, the First District Court of Appeal (Div. 4) rejected contentions that the pre-judgment completion of construction of a shooting range mooted a CEQA challenge to the project; it held an effective remedy in the form of various mitigation measures alleged in the CEQA petition remained available and reversed the trial court’s judgment entered in favor of respondents and real party after sustaining their demurrers and granting their motions to strike and for judgment on the pleadings.  In addition to applying established mootness principles, the Court resolved a number of other issues in holding petitioner Vichy Springs Resort, Inc. (“Vichy”) had sufficiently alleged a CEQA claim at the pleadings stage against both the City of Ukiah (“City”) and the County of Mendocino (“County”) in a unique factual and legal context presenting novel issues of land use regulatory authority and intergovernmental immunity.  Vichy Springs Resort, Inc. v. City of Ukiah, et al. (Ukiah Rifle and Pistol Club, Inc., Real Party in Interest) (2024) 101 Cal.App.5th 46.Continue Reading First District Holds CEQA Challenge To Shooting Range Project On City-Owned Land In Unincorporated County Was Not Mooted By Project’s Construction During Trial Court Proceedings Despite Petitioner’s Failure To Seek Preliminary Injunction

In a partially published (but mostly unpublished) opinion filed on March 7, 2024, the Fifth District Court of Appeal reversed the trial court’s judgment and writ-discharge order which had upheld Kern County’s most recently revised “streamlined permitting” ordinance for oil and gas wells and its associated CEQA review.  V Lions Farming, LLC v. County of Kern, et al. (California Independent Petroleum Association, et al., Real Parties) (2024) 100 Cal.App.5th 412.  The Court of Appeal instead directed entry of a judgment and writ setting aside the County’s revised ordinance and related certification of a revised supplemental recirculated EIR (SREIR) and addendum.  It held (in unpublished portions of its opinion) that the SREIR’s discussion of cancer risk from the potential drilling of multiple wells near a sensitive receptor was informationally deficient, and that the County also erred in analyzing the significance of lowering groundwater levels in wells by misconstruing CEQA to prohibit consideration of the social and economic impacts on disadvantaged communities in making that significance determination.  (These and other unpublished portions of the opinion will not be discussed in any further detail in this post.)Continue Reading Fifth District Clarifies That Agricultural Conservation Easements (ACE’s) Qualify As Legally Permissible “Compensatory Mitigation” For Agricultural-Land Conversion Impacts Under CEQA Despite Not Ensuring No Net Loss

In an important published opinion filed February 16, 2024, the Fourth District Court of Appeal (Div. 1) held the San Diego County Board of Supervisors committed a prejudicial abuse of discretion in granting project opponents’ appeals of the Planning Commission’s decision upholding County’s use of the CEQA Guidelines section 15183 exemption for a construction debris and inert materials recycling facility project.  Hilltop Group, Inc., et al v. County of San Diego, et al. (2024) 99 Cal.App.5th 890.  The decision is noteworthy not just as the newest in a series of recent published decisions explicating the application of this important CEQA exemption, but because it sides with and grants a writ remedy to a project developer plaintiff that ultimately prevailed in litigation alleging a lead agency overstepped its legal authority by ordering preparation of an unnecessary EIR for an exempt project.Continue Reading CEQA Remedies Go Both Ways:  Fourth District Reverses Judgment Upholding San Diego County Board’s Decision Granting Project Opponents’ Administrative Appeal, Holds Board Erred In Finding CEQA Guidelines Section 15183 Statutory Exemption Inapplicable And Ordering EIR Prepared for Exempt Industrial Project

On October 20, 223, the First District Court of Appeal (Div. 3) filed an “Order Modifying Opinion; and Denying Petitions for Rehearing and Publication [No Change in Judgment]” in Yerba Buena Neighborhood Consortium, LLC, et al. v. The Regents of the University of California (2023) 95 Cal.App.5th 779, litigation that I analyzed in my 10/10/23 post here.  The Order denied petitions for rehearing, denied the California Building Industry Association’s request to publish unpublished portions of the Opinion, and slightly modified the lengthy opinion to add a single footnote and revise one sentence.  The Court of Appeal’s docket also reflects that petitions for review have been filed in the case and those may not be acted on by the Supreme Court until around the end of the year.Continue Reading First District Denies Rehearing and Publication Requests, Slightly Modifies Opinion With No Change in Judgment in CEQA Case Upholding U.C. Regents’ EIR for Parnassus Heights Campus Long-Range Development Plan; Petitions For Review Filed