At its weekly conference held on August 24, 2022, the California Supreme Court acted to modify its recent majority opinion in County of Butte v. Department of Water Resources (State Water Contractors) (2022) 13 Cal.5th 612, Case No. S258574. In granting the request, made in a letter signed by a number of leading CEQA practitioners, for modification to correct an erroneous statement in its opinion about required topics of EIR discussion (see my 8/19/22 post on counsel’s letter here), the Supreme Court issued an “Order Modifying Opinion” stating:
Leading CEQA Counsel File Letter Requesting California Supreme Court To Correct Basic Error In Recent Majority Opinion
By Arthur F. Coon on
Posted in Uncategorized
An August 12, 2022 letter to the Supreme Court – signed onto by more than a dozen leading CEQA attorneys not representing parties to the action or other clients – has requested the Court to modify its August 1, 2022 majority opinion in County of Butte v. Dept. of Water Resources, Supreme Court Case No. S258574 to correct an error in one of the opinion’s background statements concerning a basic principle of CEQA law. (The error was pointed out in my August 7, 2022 post on the case, which can be found here.)
California Supreme Court Holds In 5-2 Decision, Over Chief Justice’s Strong Dissent, That Federal Power Act Does Not Fully Preempt CEQA’s Application to FERC’s Licensing Process for State-Owned and Operated Hydroelectric Projects
By Arthur F. Coon on
In a 5-2 opinion filed August 1, 2022, a divided California Supreme Court held the Federal Power Act (“FPA”; 16 U.S.C. § 791a et seq.) does not “occupy the field” and entirely preempt CEQA’s application to the state’s participation, as applicant and hydroelectric facility owner/operator, in the Federal Energy Regulatory Commission (“FERC”) licensing process the FPA requires to operate such facilities. County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612, Case No. S258574. Acknowledging the result would likely be different if a private party were the license applicant, the Court applied a narrower type of direct conflict preemption, based on a state entity being the facility owner/operator/applicant. The majority did agree with the Third District Court of Appeal that the Counties challenging the State Department of Water Resources’ (“DWR”) EIR, prepared in connection with its application to renew a 50-year license to operate its Butte County Oroville dam and related hydroelectric facilities, could not seek to unwind a settlement agreement prepared as part of FERC’s application process and proceedings; nor could they seek to enjoin DWR from operating under the proposed (but not yet issued) license – a request for relief the Counties initially pursued, but apparently abandoned at oral argument before the Supreme Court. The Court’s majority acknowledged such actions would contravene FERC’s “sole jurisdiction” over licensing process disputes and be preempted under longstanding federal law. (18 C.F.R. § 4.34 (i)(6)(vii); First Iowa Coop. v. Federal Power Comm’n (1946) 328 U.S. 152, 164 (“First Iowa”).)
First District Holds LA’s Water Allocations To Agricultural Lessees Were Authorized Under Existing Leases And Did Not Constitute Or Implement A Separate “Project” Subject to CEQA Review
The First District Court of Appeal filed on June 30, and later ordered published on July 26, 2022, its opinion in County of Mono v. City of Los Angeles (1st Dist. No. A162590) 81 Cal.App.5th 657. The case involves another round in the long-running controversies surrounding Los Angeles’s efforts to secure water for its populace. As the City now owns substantial acreage in the Sierra Nevada from which it takes much of its water, it serves both as landlord and water user in that region. The overlap of those two roles gave rise to the County of Mono case, in which the County sought to use CEQA litigation as leverage over the City’s water allocations to agricultural users who lease property from the City. The case holds that the City’s water allocations to the City’s agricultural lessees were authorized under its existing 2010 leases and thus did not constitute a new project subject to CEQA review before they could be lawfully implemented. The case provides guidance to practitioners on when and how CEQA applies to public contracts, and also regarding the appropriate contents of the administrative record in CEQA litigation challenging staff level actions implementing existing leases. Entitlement and litigation attorneys should accordingly both find it a useful case to review.
California Supreme Court Denies Depublication Requests In Livermore CEQA Case Addressing “No Project” Alternative
By Arthur F. Coon on
Posted in Alternatives, CEQA Guidelines, Exhaustion, Land Use, Litigation, Mitigation, Resources, Standard of Review, Takings
On July 13, 2022, the California Supreme Court denied numerous depublication requests with respect to, and declined to review on its own motion, the First District Court of Appeal’s decision in Save the Hill Group v. City of Livermore (2022) 76 Cal.App.5th 1092, S. Ct. Case No. S274754; Ct. App. Case No. A161573. My May 26, 2022 post on the League of Cities’ and CSAC’s depublication requests, which were shortly thereafter followed by further depublication requests by Respondent City of Livermore and the California Building Industry Association, can be found here, and my April 4, 2022 post analyzing the Court of Appeal’s opinion which can be found here.
CEQA Mixed-Use “Mix and Match” Upheld: Second District Holds Stable Project Description Requirement Does Not Mean Ultimately Approved Version of Revised Mixed Use Project Must Match An Alternative Analyzed In EIR, And New Project Alternative Added to FEIR Does Not Require Recirculation
By Arthur F. Coon on
On March 7, 2022, the Second District Court of Appeal (Div. 4) filed its published opinion in Southwest Regional Council of Carpenters, et al. v. City of Los Angeles, et al (The Icon at Panorama, LLC, Real Party in Interest) (2022) 76 Cal.App.5th 1154. In reversing the trial court’s judgment and writ setting aside the approvals and EIR for a mixed-use commercial and residential infill development project, the Court held the Project EIR did not violate CEQA’s requirement of an accurate, stable, and finite project description even though the project itself was revised and ultimately approved with components not matching those of any individual alternative studied in the EIR. The Court further held that the City’s addition of a fifth alternative to the Final EIR (FEIR) that was not significantly different from its other previously analyzed alternatives did not require recirculation for additional public comment, and that the City’s response to the sanitation department’s comment about local sewer line and sewage treatment plant capacity was adequate.
Sixth District Belatedly Orders Published Its Opinion Upholding Constitutionality Of Judicial Council’s Emergency Rule Altering CEQA’s Statutes Of Limitations
By Arthur F. Coon on
On June 1, 2022, the Sixth District Court of Appeal, in response to a request for publication, ordered that its previously unpublished May 9, 2022 opinion in Committee for Sound Water and Land Development v. City of Seaside (KB Bakewell Seaside Venture II, LLC, Real Party in Interest) (2022) ___ Cal.App.5th ___ be published. Matt Henderson’s and my May 20, 2022 post discussing and analyzing the Court’s decision, which is now precedent and can be cited as such, can be found here.
The Other CEQA Shoe Drops: Third District Reverses Judgment Upholding Siskiyou County’s EIR For Crystal Geyser Bottling Plant Project, Holds (1) Project Objectives Were Too Narrowly Stated And (2) County Should Have Recirculated EIR’s Climate Discussion To Allow Comment On Substantially Higher GHG Emissions Estimate First Disclosed In FEIR
By Arthur F. Coon on
On May 12, the Third District Court of Appeal belatedly ordered partially published an opinion it had filed on April 20, 2022, reversing the trial court’s judgment upholding the EIR for lead agency Siskiyou County’s approval of Crystal Geyser Water Company’s water bottling plant project. We Advocate Through Environmental Review, et al. v. County of Siskiyou, et al. (Crystal Geyser Water Company, Real Party in Interest) (2022) ____ Cal.App.5th ______. The decision followed close on the heels of the Court’s earlier decision in a related CEQA case brought by the same plaintiff and involving the same project in which it held that the City of Mount Shasta, acting as a responsible agency issuing a wastewater permit for the project, had violated CEQA by failing to make the required Public Resources Code § 21081 findings regarding potentially significant effects identified in the EIR. (My May 16, 2022 post on that earlier case can be found here.)
League of California Cities and CSAC File Request for Depublication of First District Decision Addressing Sufficiency of CEQA-Mandated “No Project” Alternative In Housing Project EIR
By Arthur F. Coon on
Posted in Alternatives, CEQA Guidelines, Exhaustion, Land Use, Litigation, Mitigation, Resources, Standard of Review, Takings, Uncategorized
On May 25, 2022, the League of California Cities (“League”) and California State Association of Counties (“CSAC”) filed a 10-page letter with the California Supreme Court requesting it to depublish the First District Court of Appeal’s recent decision in Save the Hill Group v. City of Livermore, Case No. A161573 (my April 4, 2022 post on which can be found here).
“This Woeful Record”: First District Affirms Judgment Rejecting CEQA Challenges To Marin County’s Approval of 43-Home Mountaintop Subdivision Opposed For Nearly Five Decades By Neighbors And Town of Tiburon
On May 12, 2022, the First District Court of Appeal filed a 108-page published opinion affirming a judgment denying a CEQA writ petition that challenged Marin County’s approval of a 43-lot single-family residential subdivision on a 110-acre parcel atop a mountain overlooking the Town of Tiburon and San Francisco Bay. Tiburon Open Space Committee v. County of Marin (The Martha Company, Real Party in Interest, and Town of Tiburon, Intervenor and Appellant) (2022) ___ Cal.App.5th ___. Apart from its factual background of nearly a half-century of intense legal battles over (and effectively blocking) the property’s development – which the Court described as “this woeful record before us” – the decision is notable for its legal analysis of how CEQA applies when a lead agency’s discretion in considering a project for approval is constrained by legal obligations. While in this case the legal obligations stemmed from stipulated federal court judgments mandating that the County approve a minimum level of development on the property, the Court’s reasoning and holdings that the scope of CEQA adjusts and is limited commensurate with legal limitations on an agency’s discretionary authority will clearly apply to other contexts. Most obviously, and topically, they plainly will apply to housing development projects when state housing laws impose legal obligations that limit local agencies’ legal authority to disapprove or reduce the density of those projects. (See, e.g., Gov. Code, § 65589.5 (the “Housing Accountability Act”).)