I recently analyzed proposed legislation (SB 122) seeking to create an alternative procedure for preparation of the CEQA administrative record concurrently with administrative proceedings on a project and prior to any litigation challenging it. (See “Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price,” by Arthur F. Coon, posted January 22, 2015.) Under proposed SB 122 the project applicant could initiate the alternative procedure by request to the public agency and, if the procedure were agreed to by the agency, an expedited and statutorily complete record would be prepared. However, this would be solely at the applicant’s cost and without any ability to recover that cost even if successful in subsequent litigation.
Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price
By Arthur F. Coon on
California Senate Bill No. 122 (SB 122), introduced by Senators Jackson, Hill and Roth on January 15, 2015, appears to be the newest stab at legislative CEQA “reform.” But numerous of SB 122’s embryonic provisions raise questions as to whether this proposed curative measure might have some deleterious side effects.
SANDAG Seeks Review of CEQA Decision Invalidating EIR for Its Regional Transportation Plan/Sustainable Communities Strategy
By Arthur F. Coon on
On January 6, 2015, the San Diego Association of Governments (SANDAG) filed a petition asking the California Supreme Court to review the decision in Cleveland National Forest Foundation, et al. v. San Diego Association at Governments, et al. (4th Dist. 2014) __ Cal.App.4th __, Case No. D063288, Supreme Court Case No. S223603. (For a discussion of the Court of Appeal’s decision, see “Analysis Of GHGs Under CEQA Just Got More Complex: Fourth District’s Split Decision Invalidates Program EIR For SANDAG’s 2050 Regional Transportation Plan/Sustainable Communities Strategy” by Arthur F. Coon, posted December 1, 2014.)
First District Publishes Decision Rejecting CEQA Challenges To Cal Fire’s Approval of Gualala Area Nonindustrial Timber Management Plan And Related Attempt To Challenge Department of Fish And Wildlife’s Discretionary Decision Not To Oppose Plan
By Arthur F. Coon on
In a decision filed December 2, and later ordered published on December 30, 2014, the First District Court of Appeal affirmed the Mendocino County Superior Court’s judgment denying a petition for writ of mandate challenging a Nonindustrial Timber Management Plan (NTMP) for 615 acres adjacent to Gualala. Center for Biological Diversity v. California Department of Forestry and Fire Protection (North Gualala Water Company, John and Margaret Bower, Bower Limited Partnership, Real Parties In Interest) (1st Dist., Div. 5, 2014) 232 Cal.App.4th 931, Case No. A138914. The NTMP – which functions as the equivalent of an EIR for purposes of CEQA under the certified regulatory program of the Forest Practice Act (Pub. Resources Code, § 4511 et seq.; “FPA”) and Forest Practice Rules (14 Cal. Code Regs., § 895 et seq.; “FPR”) – was approved by the California Department of Forestry and Fire Protection (Cal Fire) on application of the above-named real parties in interest (Bower).
Second District Holds Short CEQA Statute Of Limitations Not Triggered By NOD That Fails To Provide Public Notice Of Material Changes In Project As Actually Constructed From That Described In EIR
By Arthur F. Coon on
On December 15, 2014, the Second District Court of Appeal (Division 6) issued a pithy published opinion affirming the Ventura County Superior Court’s judgment. The judgment granted a peremptory writ of mandate requiring Ventura County to prepare a supplemental EIR for a completed medical clinic building on the Ventura County Medical Center Campus (campus). Ventura Foothill Neighbors v. County of Ventura (2d Dist., Div. 6, 2014) 232 Cal.App.4th 429.
“Making CEQA A Federal Case? Recent Actions of California’s Supreme Court and the Federal Surface Transportation Board Set Up A Preemption Showdown”
By Arthur F. Coon on
Controversy has dogged the California high speed rail project since before its inception with the 2008 passage of Proposition 1A, the bond measure providing the project’s initial funding. The controversy has not abated in the years since, and the project has been subject to ever-escalating cost estimates and almost constant second-guessing. It has also been the target for multiple CEQA lawsuits. Recent developments in this area demonstrate just how complex the legal landscape can get when it comes to CEQA’s application to large and long-term public railway projects. Two very different bodies – the California Supreme Court and the federal Surface Transportation Board (STB) – have just waded into this legal thicket to try to provide some clarity. But things could get worse before they get better in that regard, as the stage is set for potentially conflicting rulings on the application of federal preemption law to CEQA.
Fifth District Rejects CEQA Challenge to Fresno County Aggregate Mine Project EIR In Partially Published Decision, Clarifies State Mining Board’s Smara Powers and CEQA’s Farmland Loss Mitigation Rules
By Arthur F. Coon on
In a lengthy, 65-page opinion filed December 8, 2014 (of which fully two-thirds was unpublished), the Fifth District Court of Appeal affirmed the Fresno County Superior Court’s judgment upholding the EIR, Conditional Use Permit (CUP), and reclamation plan approvals for the Carmelita Mine and Reclamation Project, an aggregate mining and processing operation proposed to be located at a 1,500-acre site 15 miles east of Fresno. Friends of the Kings River v. County of Fresno (Colony Land Company, L.P., and Carmelita Resources, LLC, RPI) (5th Dist. 2014) 232 Cal.App.4th 105. The project contemplates extraction of 1.25 million tons of aggregate per year, from 22 individual mining cells of about 40 acres each, over a period of up to 100 years, with mining and subsequent reclamation activities to proceed on a cell-by-cell basis. Continue Reading Fifth District Rejects CEQA Challenge to Fresno County Aggregate Mine Project EIR In Partially Published Decision, Clarifies State Mining Board’s Smara Powers and CEQA’s Farmland Loss Mitigation Rules
Fourth District Publishes Another CEQA Decision Setting Aside San Diego Lead Agency’s EIR For Failure To Analyze And Mitigate GHG Emissions Per 2005 Executive Order; SANDAG Announces It Will Seek Review Of Related Adverse Decision
By Arthur F. Coon on
“And all this science, I don’t understand
It’s just my job, five days a week”
— Elton John/Bernard Taupin,
“Rocket Man”
Having seen years of their lofty regional planning efforts come crashing back to Earth, San Diego government entities have had little to be thankful about so far this holiday season on the CEQA front. In an October 29 decision later ordered published on November 24, 2014, the Fourth District Court of Appeal affirmed the San Diego County Superior Court’s judgment setting aside San Diego County’s 2011 general plan update and related program EIR (PEIR). Sierra Club v. County of San Diego (4th Dist., Div. 1, 2014) 231 Cal.App.4th 1152.
Supreme Court Hears CEQA Categorical Exemption Case Arguments; Matter Now Submitted And Awaiting Decision
By Arthur F. Coon on
I had occasion earlier this week to attend oral argument at the California Supreme Court in the Berkeley Hillside Preservation v. City of Berkeley case (No. S201116), which involves issues concerning the proper interpretation of and standard of judicial review for the “unusual circumstances” exception to categorical exemptions set forth in the CEQA Guidelines. The matter is now under submission with the high court and a decision is expected by not later than March 2, 2015. Those interested in further details of the argument can access my Law 360 article, as republished on my firm’s website here.
Analysis Of GHGs Under CEQA Just Got More Complex: Fourth District’s Split Decision Invalidates Program EIR For SANDAG’s 2050 Regional Transportation Plan/Sustainable Communities Strategy
By Arthur F. Coon on
In a 2-1 published opinion filed November 24, 2014, the Fourth District Court of Appeal, Division 1, affirmed and modified the trial court’s judgment granting writ petitions by plaintiff groups challenging the EIR for the San Diego Association of Governments’ (SANDAG) 2050 Regional Transportation Plan/Sustainable Communities Strategy (2050 RTP/SCS). Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al. (2014) ___ Cal.App.4th ___, 2014 WL 6614394. SANDAG’s RTP was the first of its kind approved under SB 375, and it sought to better align transportation, land use, and housing so as to achieve regional GHG emissions reductions targets set by the California Air Resources Board (CARB). SANDAG’s assigned targets are to reduce per capita CO2 emissions 7% below 2005 levels by 2020, and 13% below 2005 levels by 2035.