Mitigation

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In a 5-2 decision filed November 30, 2015, the California Supreme Court reversed the judgment of the Court of Appeal which had upheld the EIS/EIR for the controversial Newhall Ranch development project. Center For Biological Diversity, et al. v. California Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (2015) 62 Cal.4th 204. The high court approved the EIS/EIR’s methodology analyzing the significance of the project’s greenhouse gas (GHG) emissions in terms of reductions from projected “business as usual” (BAU) emissions consistent with AB 32’s statewide reductions mandate, rather than against some absolute numeric limit above the project site’s “baseline” emissions. However, it held the GHG analysis lacked supporting substantial evidence and a cogent explanation correlating the project-specific reductions to AB 32’s mandated state-wide reductions so as to demonstrate consistency with the latter’s goals under the approved methodology. The Court further held the EIS/EIR violated Fish & Game Code § 5515’s prohibition on the taking of “fully protected” fish species by including mitigation measures providing for the collection and relocation by USFWS of the unarmored threespine stickleback. Finally, the Court held – under the particular factual circumstances of the case – that certain issues raised by plaintiffs during an optional public comment period on the Final EIS/EIR were timely raised so as to sufficiently exhaust administrative remedies under Public Resources Code § 21177(a).
Continue Reading Lost in Translation: Supreme Court Elucidates CEQA GHG Analysis, “Fully Protected” Species Take Prohibition, And Issue Exhaustion In Decision Finding Newhall Ranch Development EIR Flawed

In the Spring of last year, I posted an analysis of what I called the Third District Court of Appeal’s “exceptionally thorough and well-reasoned opinion” in Citizens for Environmental Responsibility v. State of California ex rel 14th District Agricultural Association (3d Dist. 2014) 224 Cal.App.4th 152, rev. gtd. and action deferred 7/9/14. (See, “Third District Construes CEQA Guidelines’ Class 23 Categorical Exemption And “Unusual Circumstances” Exception In Rejecting Challenge To Watsonville Rodeo Event”, by Arthur F. Coon, posted April 7, 2014.) In concluding that post, I noted that the Third District’s position on application of the “unusual circumstances” exception to categorical exemptions was “very clear” and “also diametrically opposed to that taken by the First District in a case in which the California Supreme Court has granted review, and which [had at that time] been pending for almost two years in that Court, Berkeley Hillside Preservation et al. v. City of Berkeley, et al., Case No. S20116.”
Continue Reading Not Its First CEQA Rodeo: Third District Again Upholds Class 23 Categorical Exemption For 2011 Watsonville Rodeo Event On Remand From Supreme Court

On remand following a landmark California Supreme Court decision, the First District Court of Appeal filed its opinion affirming the trial court’s judgment on September 23 and later ordered it published on October 15, 2015. Berkeley Hillside Preservation, et al. v. City of Berkeley (1st Dist., Div. 4, 2015) 241 Cal.App.4th 943. Readers can refer to my previous post for a complete treatment of the case’s facts and the Supreme Court’s rulings. Key aspects and points of the Court of Appeal’s 19-page opinion on remand include:
Continue Reading Berkeley Hillside CEQA Cat Ex Case Redux: Kapors Get Their Mansion, First District’s Belatedly Published Opinion Upholds City’s Decision That “Unusual Circumstances” Exception Does Not Apply

On October 2, 2015, the Bureau of Land Management (“BLM”) and the California Department of Fish and Wildlife (“CDFW”) entered into a 12-page “agree[ment] to work with each other to conserve biological and natural resources on federal public lands administered by the BLM within California.” (10/2/15 Agreement By And Between The United States Bureau Of Land Management And The California Department Of Fish And Wildlife (“Agreement”), at p. 1.)  The Agreement states it was developed “for the purpose of memorializing and making specific [the agencies’] cooperation and coordination to protect and conserve fish, wildlife, plants and their habitat within California” and that it “supplements” an earlier, November 27, 2012 MOU between BLM and CDFW.  (Ibid.)
Continue Reading Satisfying State Compensatory Mitigation Requirements Under CEQA On Federal Conservation Lands: CDFW And BLM Agree To Cooperate To Make It Happen

On September 18 and October 5, 2015, I posted Parts I and II, respectively, of my comments on OPR’s August 11, 2015 Preliminary Discussion Draft of its “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). While the deadline for public comments on the 145-page Discussion Draft was October 12, 2015, there undoubtedly will be future opportunities for public input on the proposed Guidelines amendments during the formal rulemaking process that will ultimately be conducted by the Natural Resources Agency, if not before.  This concluding post on the Discussion Draft covers its final part, which sets forth about a dozen proposed revisions that OPR characterizes as merely “Minor Technical Improvements.”  (Discussion Draft, at 108-145.)
Continue Reading Proposed CEQA Guidelines Amendments: A Critique of OPR’s “Preliminary Discussion Draft” (Part III – Proposed “Minor Technical Improvements”)

In an opinion filed September 10, and later ordered partially published on October 9, 2015, the Court of Appeal affirmed the substance of a judgment upholding an EIR for a regional shopping center renovation project in Carlsbad, California, reversing only with respect to certain cost award issues treated in an unpublished portion of the opinion. North County Advocates v. City of Carlsbad (Plaza Camino Real, LP, et al., Real Parties in Interest) (4th Dist., Div. 1, 2015) 241 Cal.App.4th 94. The published portions of the opinion address the case’s facts, applicable CEQA rules and standards of review, and traffic baseline issues; the unpublished portions address issues concerning traffic mitigation measures, the adequacy of the City of Carlsbad’s (“City”) responses to comments, and the propriety of the various aspects of the trial court’s record preparation cost awards that were made to the City and real parties (“Westfield”) as prevailing parties.
Continue Reading Fourth District Addresses CEQA Baseline Issues In Partially Published Opinion Upholding EIR For Carlsbad Shopping Mall Renovation

On September 18, 2015, I posted a “Part I” piece on the “efficiency improvements” category of OPR’s Preliminary Discussion Draft of its “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). That post can be found here. This follow up post (Part II) covers OPR’s most significant proposals contained in the Discussion Draft’s remaining two categories, i.e., its two proposed “Substance” improvements and its first three proposed “Technical” improvements, but excludes the remaining dozen proposals that OPR classifies as only “minor technical improvements.”
Continue Reading Proposed CEQA Guidelines Amendments: A Critique of OPR’s “Preliminary Discussion Draft” (Part II – Proposed “Substance” and Major “Technical Improvements”)

On September 9, 2015, the California Supreme Court denied review and decertified the Fourth District Court of Appeal’s previously published opinion in Albert Thomas Paulek v. Western Riverside Regional Conservation Authority, which had appeared at 238 Cal.App.4th 583. A discussion of the issues presented by the case and my analyses of the Court of Appeal’s reasoning on them can be found in my post on the originally published opinion. (See “Fourth District Holds Agency’s Removal of Conservation Designation From Land Formerly Protected Under MSHCP Is ‘Project’ Subject to CEQA; Class 7 and 8 Categorical Exemptions for Environmentally Protective Regulatory Actions Do Not Apply,” by Arthur F. Coon, posted July 2, 2015.)

The Supreme Court’s depublication order means that while the decision remains binding on the parties to the case, it will not be citable as precedential authority under California law.Continue Reading Supreme Court Depublishes Lengthy CEQA Categorical Exemption Case

On August 11, 2015, the Governor’s Office of Planning and Research (OPR) released a 145-page “Preliminary Discussion Draft” of “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). The Discussion Draft “contains [OPR’s] initial thoughts on possible amendments to the CEQA Guidelines” and proposes revisions to nearly thirty (30) sections that OPR classifies into three categories: (1) efficiency improvements; (2) substance improvements; and (3) technical improvements. If ultimately adopted in some form, the Discussion Draft’s proposals would constitute the most comprehensive update to the Guidelines since the late 1990s. The Discussion Draft’s Executive Summary describes it as “a balanced package that is intended to make the [CEQA] process easier and quicker to implement, and better protect natural and fiscal resources consistent with other state environmental policies.”
Continue Reading Proposed CEQA Guidelines Amendments: A Critique Of OPR’s “Preliminary Discussion Draft” (Part I – Proposed “Efficiency Improvements”)

In an August 3, 2015 decision that impacts the California State University’s (CSU) plans to expand its campuses across the state, the California Supreme Court has rejected CSU’s arguments that mitigation of its projects’ off-site impacts through the payment of “fair share” fees is legally infeasible unless the Legislature appropriates funding specifically earmarked for that purpose. City of San Diego, et al. v. Board of Trustees of the California State University (2015) ___ Cal.4th ___, 2015 WL 4605356 (Case No. S199557). The Supreme Court thus affirmed the court of appeal’s judgment decertifying CSU’s 2007 EIR and related findings of infeasibility and statement of overriding considerations for its San Diego State University (SDSU) campus expansion project.
Continue Reading The “Old College Try” Flunks Out: California Supreme Court Holds CEQA Mitigation Obligation For CSU Campus Expansion Projects Extends Beyond Unsuccessful Effort To Obtain Earmarked Legislative Appropriation