In a unanimous 24-page opinion authored by newly seated Justice Cuellar and filed December 17, 2015, the California Supreme Court resolved a fundamental issue regarding CEQA’s scope, holding that – with certain specific statutory exceptions – it does not compel what many practitioners have referred to as a “CEQA-in-reverse” analysis. California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, Case No. S213478.
First District Reissues Slightly Modified Opinion on Retransfer From Supreme Court Rejecting Most CEQA Challenges to Cal State East Bay Campus Expansion EIR
By Arthur F. Coon on
On November 30, 2015, following a grant and retransfer from the California Supreme Court and reconsideration in light of City of San Diego v. Board of Trustees of California State University (2015) 61 Cal.4th 945, the First District Court of Appeal (Division 3) reissued in slightly modified form its decision in City of Hayward v. Board of Trustees of the California State University (1st Dist., Div. 3 2015) 242 Cal.App.4th 833. The partially published opinion reaches essentially the same result, with the same reasoning, as did the Court of Appeal’s initial opinion, which was certified for publication on June 26, 2012. For the case’s facts, procedural history, holdings, and (in my view) most significant analyses, the reader should consult my prior post. (See, “First District Reaffirms CEQA Is Concerned With Physical Impacts On The Environment, Not Economic Ones On Government Services,” by Arthur F. Coon, posted on July 12, 2012.) Continue Reading First District Reissues Slightly Modified Opinion on Retransfer From Supreme Court Rejecting Most CEQA Challenges to Cal State East Bay Campus Expansion EIR
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 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).
Not Its First CEQA Rodeo: Third District Again Upholds Class 23 Categorical Exemption For 2011 Watsonville Rodeo Event On Remand From Supreme Court
By Arthur F. Coon on
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.”
State Lands Commission’s CEQA Review of SF Bay/Delta Sand Mining Project Approval Is Adequate, But Fails to Fulfill Obligation to Consider Public Trust Doctrine
The First District Court of Appeal held the California State Lands Commission’s (“CSLC”) EIR for a project involving the lease of sovereign lands beneath San Francisco Bay for private dredge mining of sand complied with CEQA; however, it partially reversed the trial court’s judgment denying a writ because the record failed to demonstrate CSLC’s compliance with the public trust doctrine. San Francisco Baykeeper, Inc. v. California State Lands Commission (Hanson Marine Operations, Inc., et al., Real Parties In Interest) (1st Dist., Div. 4, 2015) 242 Cal.App.4th 202, filed 11/18/15.
If A Tree Falls In The (Urban) Forest … Does CEQA Apply? Sixth District Holds City Of Santa Cruz’s Amendment Of Tree Protection Ordinance Not Categorically Exempt
By Arthur F. Coon on
When California local governments stretch their resources too far to regulate private conduct and property rights in the name of environmental protection, CEQA can make it quite onerous to undo what has been done. And one can rest assured that if any additional trees might be allowed to “fall in the forest,” CEQA plaintiffs will be close by with their ears peeled to prevent the tragedy. Such are the fundamental philosophical lessons of the Sixth District Court of Appeal’s recently published opinion in Save Our Big Trees v. City of Santa Cruz (2015) 241 Cal.App.4th 694, filed on October 23, 2015.
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
By Arthur F. Coon on
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:
Second District Rejects CEQA And Fair Transit Hearing Challenges To LA Metro’s Westside Subway Extension Project In Lengthy Published Opinion
By Arthur F. Coon on
In a 65-page opinion certified for publication and filed October 22, 2015, the Second Appellate District Court of Appeal affirmed the Los Angeles County Superior Court’s judgment denying writ petitions by the City of Beverly Hills (“City”) and the Beverly Hills Unified School District (“District”). Petitioners and Appellants’ actions challenged respondent Los Angeles County Metropolitan Transportation Authority’s (“LA Metro”) EIS/EIR and related approval of the Westside Subway Extension Project (the “Project”). The Project involves the extension of Metro’s Purple Line heavy rail transit (HRT) subway system to the Westside of Los Angeles through the addition of 7 stations and 9 miles of subway line, and includes a new Century City station (the “Constellation station”) to be reached through a tunnel to be constructed underneath Beverly Hills High School. The City of Beverly Hills v. Los Angeles County Metropolitan Transportation Authority (Case No. B256753) (2d Dist., Div. 4, 2015) 241 Cal.App.4th 627.
Satisfying State Compensatory Mitigation Requirements Under CEQA On Federal Conservation Lands: CDFW And BLM Agree To Cooperate To Make It Happen
By Arthur F. Coon on
Posted in Land Use, Legislation, Mitigation, Reform, Responsible and Trustee Agencies, Uncategorized
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
Proposed CEQA Guidelines Amendments: A Critique of OPR’s “Preliminary Discussion Draft” (Part III – Proposed “Minor Technical Improvements”)
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.)