Mitigation

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In a mostly-published 95-page opinion filed July 15, 2013, the Fifth District Court of Appeal reversed a trial court’s judgment and directed issuance of a writ of mandate setting aside Resolution 09-31 and two executive orders of the California Air Resource Board (CARB) approving Low Carbon Fuel Standards (LCFS) regulations promulgated to reduce greenhouse gas (GHG) emissions.  (Poet, LLC, et al. v. California Air Resources Board, et al (5th Dist. 7/15/13) 217 Cal.App.4th 1214, as modified on denial of rehearing at 218 Cal.App.4th 681, No. F064045.)  However, despite its finding that CARB’s actions “ran afoul of several procedural requirements imposed by CEQA and the APA” and that “these procedural violations are not trivial,” the Court tailored its remedy to protect the public interest by “allow[ing] the LCFS regulations to remain operative while [C]ARB complies with the procedural requirements it failed to satisfy.”  It stated:  “In other words, we will avoid the irony of violations of an environmental protection statute being used to set aside a regulation that restricts the release of pollutants into the environment.”
Continue Reading CARB Violated CEQA In Adopting GHG Regulations, But Fifth District Holds Regulations May Remain Operative Pending Compliance

Nothing says “battle royal” quite like pitting several of California’s heavyweight environmental laws against one another in a “winner-take-all” litigation brawl.  The Sixth District Court of Appeal recently presided over such a conflict in Save Panoche Valley v. San Benito County (6/25/13) 217 Cal.App.4th 503, a published decision in which it affirmed a judgment rejecting CEQA and Williamson Act-based challenges to the County’s EIR and findings approving a large solar power plant project on 4,885 acres of cattle grazing land in San Benito County.
Continue Reading The New Range Wars: CEQA and the Williamson Act Are Deployed To Fight Global Warming Solutions In Save Panoche Valley

Judging by all the recent articles and blog posts written about it, many commenters believe the Court of Appeal’s recent decision in Taxpayers For Accountable School Bond Spending v. San Diego Unified School Dist. (“Taxpayers”) (4th Dist 2013) 215 Cal.App.4th 1013 has broken (or at least replowed) significant legal ground and created serious new problems for local agencies and project developers by reinstituting a former CEQA requirement that a project’s impacts on “parking” be analyzed. 
Continue Reading Is “Parking” Really A CEQA Impact? Same As It Ever Was!

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

Governor Jerry Brown was recently quoted in a Capitol Alert piece as calling legislative reform of CEQA “the Lord’s work” – hopefully he didn’t mean the quest for the Holy Grail – although he admitted in the same article he hadn’t yet read the latest bills proposing to limit its scope.  In the short time since then, SB 317 (the most significant effort at CEQA reform this year) appears to have died in the waning days of this Legislative session.  While “hope springs eternal,” meaningful legislative reform of CEQA thus continues to prove elusive.
Continue Reading Are Courts Actively Limiting CEQA’s Scope In The Absence of Meaningful Legislative Reform?

CEQA calls for environmental review of discretionary projects at the earliest meaningful stage, to serve its purposes of public participation and informed decision-making.  The basic idea is simple:  analyze and shape the project to reduce or avoid environmental impacts before deciding to approve it.  But there is a tension between CEQA’s mandate for early review and its requirement of detailed discussions of impacts and mitigation measures.  Ever since the seminal case of Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, allegations of improper “deferral” – whether of analysis of potential impacts or feasible mitigation measures – have been a staple of CEQA litigation.  Resolving the “deferral” dilemma calls for a careful, case-by-case balancing between CEQA’s mandate that significant environmental impacts and feasible mitigation measures be meaningfully analyzed prior to project approval, and the practical reality that the full extent of project impacts and precise details of needed mitigation frequently cannot be known until post-approval stages of project development.

In other words, it’s complicated.  Two recent cases illustrate situations where EIRs have been upheld – and rejected – in the face of deferral challenges.

In Oakland Heritage Alliance v. City of Oakland (2011) 195 Cal.App.4th 884, the Court of Appeal rejected plaintiff’s challenge to a Revised EIR for a 64-acre, mixed use, high rise development project located along the Oakland Estuary.  The project was 3-1/2 miles from the active Hayward fault zone and 15-1/2 miles from the active San Andreas fault zone.  To address potential seismic impacts, the EIR included mitigation measures that required further compliance with the Seismic Hazards Mapping Act and relevant provisions of the State and City’s Building Codes.  This approach –reliance on compliance with the applicable regulatory framework – is common practice. However, plaintiff claimed (among other challenges) that the City improperly deferred mitigation of the project’s seismic effects.
Continue Reading “Deferral” Under CEQA: It’s Complicated!

Shortly before the close of the last legislative session, I found myself writing a strongly-worded letter (on behalf of myself and interested clients of Miller Starr Regalia) to Governor Brown, the authors of proposed SB 436 (Kehoe) and AB 484 (Alejo) and certain Senate and Assembly Committee Chairs to urge an amendment of – or alternatively a “no” vote on or veto of – those bills.

I specifically requested removal of proposed Government Code § 65968(b), which would have provided:  “A property that has been previously protected for conservation purposes, including the placement of a conservation easement on the property, may not be used for mitigation purposes.”  My letter pointed out that the provision would: (1) constitute an unconstitutional taking of the property rights of farmers and landowners who have granted conservation easements on their properties; (2) violate constitutional prohibitions against contract impairment and public policy favoring freedom of contract; and (3) conflict with the existing statutory law and legislatively-established public policies governing voluntary conservation easements embodied in Civil Code §§ 815, et seq.  In short, it was an illegal “property rights grab.”  And it was buried in an otherwise innocuous bill whose only purpose, as disclosed by every available legislative analysis, was to clarify and expressly authorize a non-controversial existing administrative practice regarding transferring endowment funds from governmental agencies to non-profits that acquire their conservation easements.
Continue Reading CEQA Mitigation On Conservation Easement Lands: How a Plea to Legislators Killed a Threat to Farmers’ Property Rights (For Now)