The Federal Energy Regulatory Commission (“FERC”) issues licenses needed to construct and operate hydroelectric dams pursuant to the Federal Power Act (“FPA”; 16 U.S.C. § 791a, et seq). Under long-standing law, and with the limited exception of state-issued water quality certifications, the FPA “occupies the field” of licensing a hydroelectric dam, and bars environmental review of the federal licensing procedure in state courts; this preemption is necessary because recognizing a “dual final authority” for such projects would be “unworkable.” (First Iowa Hydro-Electric Cooperative v. Federal Power Com. (1946) 328 U.S. 152.) States have limited authority under the Clean Water Act (33 U.S.C. § 1341) to impose stricter water quality conditions than are federally required on a FERC license, through the section 401 water quality certification process, but must act on a project applicant’s certification request within one year or certification is deemed waived. (33 U.S.C. § 401(a)(1); Alcoa Power Generating Inc. v. FERC (D.C. Cir. 2011) 643 F.3d 963, 972.) Further, any disputes concerning the Federal licensing process or the adequacy of “required studies” for that process (including “environmental studies” serving as the predicate for the state’s water quality certification conditions) are subject to FERC’s review. (18 C.F.R. part 4, 34(i)(b)(vii) (2003).)
In a published opinion filed December 17, 2018, the Third District Court of Appeal affirmed a judgment granting a writ setting aside El Dorado County’s approval of, and related Mitigated Negative Declaration (MND) for, construction of a Dollar General Store in the “quaint” downtown area of unincorporated Georgetown, a Gold Rush-era “hamlet” designated as a State Historical Landmark. Georgetown Preservation Society v. County of El Dorado (Simoncre Abbie, LLC, Real Party in Interest) (2018) 30 Cal.App.5th 358. The Court held lay public commentary on nontechnical issues concerning the project’s size and general appearance constituted substantial evidence supporting a fair argument that the project may have significant aesthetic impacts, and thus required an EIR, notwithstanding County’s findings that the project complied with its Historic Design Guide. The Court also held County’s failure to make explicit findings in the record on alleged credibility and foundation issues precluded its “manufacturing after-the-fact findings” to justify its dismissal of the public comments on the ground that they did not constitute “substantial evidence.”
As we draw near the close of another year, a number of recent CEQA developments bear noting.
“What’s in a name? That which we call a rose by any other name would smell as sweet;” – William Shakespeare, Romeo and Juliet, Act II, Scene II, ll. 47-48.
In a partially published 40-page opinion filed on November 26, 2018, the Sixth District Court of Appeal affirmed the trial court’s post-judgment order determining that respondents’ (City of San Juan Bautista and its city council) supplemental return complied with a previously issued peremptory writ and CEQA as directed. But the opinion’s most valuable message to those toiling in the garden of the law – a profession where using the correct words is of paramount importance – is a simple Shakespearean one, to wit: a final judgment by any other name is still a final judgment. Alliance of Concerned Citizens Organized For Responsible Development v. City of San Juan Bautista (Harbhajan Dadwal, Real Party in Interest) (2018) 29 Cal.App.5th 424.
Continue Reading CEQA Plaintiff’s Failure To Appeal Incorrectly Labeled “Interlocutory” Decision Granting Peremptory Writ Barred Appellate Review Of Decision On Later Appeal From Post-Judgment Order Erroneously Labeled “Final Judgment”
In an opinion filed October 19, and later ordered published on November 15, 2018, the Third District Court of Appeal affirmed a judgment upholding Plumas County’s First comprehensive update of its 1984 general plan, and rejecting arguments that the update violated the California Timberland Productivity Act of 1982 (the “Timberland Act” or “Act”) and that the related EIR violated CEQA. High Sierra Rural Alliance v. County of Plumas (2018) 29 Cal.App.5th 102.
The Fourth District Court of Appeal (Div. 1) held in a published opinion filed October 24, 2018, that CEQA Guidelines § 15164 validly establishes an addendum process that is consistent with the CEQA statute, implementing and filling gaps in Public Resources Code § 21166. The Court also held that new findings under Public Resources Code § 21081 addressing a project’s significant impacts are not required when a lead agency approves an addendum to an EIR. Save Our Heritage Organisation v. City of San Diego (The Plaza de Panama Committee, Real Party in Interest) (2018) 28 Cal.App.5th 656.
A few recent developments and upcoming events in the CEQA world bear quick mention:
- The BART Housing Bill:
Under AB 2923, BART now has limited land use regulation authority on its own lands near its stations. BART is required to adopt Transit-Oriented Development (TOD) standards for its lands by July 1, 2020, and its action in this regard is subject to CEQA review, with BART acting as the lead agency. The new law declares the minimum TOD standards for this purpose (setting minimum density and height limits, and maximum parking limits) are set forth in BART’s 2017 TOD Guidelines. Development projects which meet TOD zoning requirements and provide 30% affordable housing will qualify for streamlined, “by-right,” ministerial approval with no additional CEQA review. The law also requires cities and counties to adopt zoning standards for BART-owned lands, conforming to BART’s adoption of TOD standards for height, density, parking, and FAR for eligible TOD projects, within 2 years of BART’s action, or by July 1, 2022 if BART fails to act. The new law is intended to increase California’s housing supply and provide some relief from its housing crisis, and could enable BART to develop up to 20,000 residential units and 4.5 million square feet of office/commercial uses on 250 acres of BART-owned lands by 2040. My partner Bryan Wenter’s excellent post on this new law can be found here.
In a published opinion filed in consolidated appeals on September 28, 2018, the Fourth District Court of Appeal (Div. 1) affirmed the trial court’s judgment invalidating San Diego County’s adoption of a 2016 Guidance Document that established a generally applicable threshold of significance for GHG analysis of 4.9 metric tons of CO2e per service population per year. Golden Door Properties, LLC v. County of San Diego/Sierra Club, LLC v. County of San Diego (2018) 27 Cal.App.5th 892. The Court held the case was ripe because the 2016 Guidance Document’s GHG “Efficiency Metric” set forth the threshold of significance as generally applicable to project proposals; it held the document violated CEQA because it was not formally adopted by ordinance, rule, resolution or regulation through a public review process, and was not supported by substantial evidence adequately explaining how its service population number derived from statewide data constituted an appropriate GHG metric to use for all projects in unincorporated San Diego County. (CEQA Guidelines, §§ 15064.7(b), (c); Center for Biological Diversity v. California Department of Fish and Wildlife (2015) 62 Cal.4th 204, 227 (“CBD”).) The Court also held County’s adoption of the threshold of significance in advance of its required Climate Action Plan (CAP) constituted improper “piecemealing [of] environmental regulations” in violation of the Court’s earlier decision and the trial court’s second supplemental writ in the same litigation, which treated the CAP and thresholds of significance based on it as a single CEQA project and required completion of the CAP prior to the adoption of the thresholds of significance.
“Birds of a feather flock together.” — Proverb
The Fourth District Court of Appeal (Div. 2) affirmed a judgment entered after the sustaining of a demurrer without leave, holding that a mandate action brought by The Inland Oversight Committee (IOC), CREED-21, and Highland Hills Homeowners Association (HOA) alleging CEQA and Water Code violations was barred by res judicata (based on the final judgment in the HOA’s prior related CEQA action), and failure to state a claim. The Inland Oversight Committee v. City of San Bernardino (First American Title Insurance Company) (2018) 27 Cal.App.5th 771. (The Court’s opinion, filed September 14 and later ordered published on September 27, 2018, denied the parties’ motions to dismiss and strike and related requests for judicial notice as moot in light of its disposition on the merits.)
In a published opinion filed September 18, 2018, the Fourth District Court of Appeal (Div. 1) affirmed a judgment granting a writ setting aside the City of San Diego’s (City) decision to subject a coastal development permit (CDP) application for construction of a single family home on a vacant La Jolla lot to CEQA review. Francis A. Bottini, Jr. v. City of San Diego (2018) 27 Cal.App.5th 281.
Continue Reading Fourth District Holds City Violated CEQA By Refusing To Recognize Exemption For Single Family Residence Project And Attempting To Subject Owner’s Already Authorized And Completed Demolition Action To Retroactive Environmental Review (Yet Absolves City From Liability For Regulatory Taking)