In a decision filed January 29, and belatedly ordered published on February 18, 2015, the Fourth District Court of Appeal rejected numerous CEQA (and other) challenges to the City of San Diego’s regular, after-the-fact coastal and site development permits authorizing already-completed emergency storm drainage repair work as well as site revegetation at a hillside site in La Jolla. CREED-21 v. City of San Diego (4th Dist., Div. 1, 2015) 234 Cal. App. 4th 488.) In so doing, it reversed the trial court’s decision granting a writ of mandate setting aside the City’s approvals, and made crystal-clear that work performed and completed under CEQA’s emergency exemption becomes part of the “existing conditions” environmental baseline for purposes of a subsequent CEQA challenge to the permanent permits when the exemption itself is not timely challenged.
CEQA Review of Sacramento Kings Downtown Arena Project Held Legally Adequate In Published Third District Opinion
By Arthur F. Coon on
In a published opinion filed February 18, 2015, the Third District Court of Appeal rejected all legal challenges to the City of Sacramento’s EIR and CEQA compliance for approval of its new downtown entertainment and sports center (ESC) which will serve as the Sacramento King’s new home arena. Saltonstall v. City of Sacramento (3d Dist. 2015) 234 Cal.App.4th 549. Key points of the Court’s decision, which affirmed the trial court’s judgment denying the writ sought by project opponents, include:
CEQA Roundup – Recent Developments
By Arthur F. Coon on
Numerous CEQA-related developments have recently been in the news. Some of possible interest include:
Third District Rejects CEQA Challenge To Program EIR For California Department of Fish and Wildlife’s Statewide Fish Hatchery/Stocking Enterprise
By Arthur F. Coon on
In a lengthy published decision filed February 10, 2015, and addressing consolidated appeals in three related actions, the Third District Court of Appeal affirmed the trial court’s judgment rejecting petitioner and appellant Center for Biological Diversity’s (CBD) CEQA challenge to the California Department of Fish and Wildlife’s (CDFW) Program EIR (PEIR) reviewing on a statewide basis environmental impacts of its statutorily mandated fish hatchery and stocking enterprise – an operation that has been ongoing for more than 100 years. Center for Biological Diversity v. Department of Fish and Wildlife (3d Dist. 2015) 234 Cal.App.4th 214. The case addresses a number of important CEQA issues, including the rules governing use of PEIRs, baseline setting, deferral of mitigation, and alternatives analysis. (The non-CEQA portions of the opinion, which are not summarized in detail herein, held three mitigation measures CDFW imposed on an urban fishing program and private stocking permits – and which detrimentally affected private fish farmers and vendors beyond CDFW’s internal management – were “underground regulations” improperly adopted without formal compliance with the Administrative Procedure Act.)
How CEQA’s Administrative Record Preparation Process Could Be Reformed By Eliminating CEQA Petitioners’ Statutory Option To Prepare The Record
By Arthur F. Coon on
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.