As previously discussed in this blog, last year’s passage of SB 743 added a requirement in Public Resources Code § 21099(b) that the Governor’s Office of Planning and Research (OPR) develop new CEQA guidelines “for determining the significance of transportation impacts of projects within transit priority areas.” (See “CEQA, Sausages, And The Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions,” posted September 16, 2013; “OPR To Review Specific CEQA Guidelines Topics Proposed for 2014 Update, Solicits Public Input,” posted January 29, 2014.) The impetus behind this change is to find an alternative to the familiar and currently prevalent “level of service” (or “LOS”) standard for analyzing traffic impacts.
CEQA Action Seeking to Avoid LAFCO Annexation and SOI Change Approvals is Dismissed for Failure to Comply with Procedural Requirements for Reverse Validation Actions
By Arthur F. Coon on
The lessons taught by the Fifth District Court of Appeal in its recently-published decision in Protect Agricultural Land v. Stanislaus County Local Agency Formation Commission (City of Ceres, RPI), 223 Cal.App.4th 550, are rather simple: (1) the validity of final LAFCO approvals may only be challenged through compliance with the validation action procedures of Code of Civil Procedure sections 860 et seq. (Gov. Code, § 56103); and (2) a plaintiff should do its legal research before bringing a CEQA action to ascertain if any special procedural requirements outside of CEQA apply to the particular type of land use approvals it seeks to set aside.
OPR To Review Specific CEQA Guidelines Topics Proposed For 2014 Update, Solicits Public Input
By Arthur F. Coon on
Posted in Alternatives, Baseline, CEQA Guidelines, Climate Change/GHG, Exemptions, Legislation, Mitigation, Reform
The Governor’s Office of Planning and Research (OPR) will undertake a comprehensive review of the CEQA Guidelines (14 Cal.Code Regs., §15000 et seq) this year and is currently soliciting public input – to be provided not later than COB on February 14, 2014 – on specific possible topics it has developed as a result of stakeholder suggestions and published on its website. OPR’s 7-page document, dated December 30, 2013, and entitled “Possible Topics to be Addressed in the 2014 CEQA Guidelines Update,” can be found at http://www.opr.ca.gov/docs/PossibleTopics2014CEQAGuidelinesUpdate.pdf.
CEQA-In-Reverse Case Opening Brief Filed In California Supreme Court
By Arthur F. Coon on
Posted in Alternatives, CEQA-in-reverse, Climate Change/GHG, Legislation, Litigation, Mitigation, Reform
The California Building Industry Association (CBIA) laid out its case that CEQA contains no general directive requiring analysis of the existing environment’s impacts on a future project in a 50-page opening brief filed in the California Supreme Court on January 10, 2014. California Building Industry Association v. Bay Area Quality Management District, Supreme Court Case No. S213478. The Supreme Court recently granted review of the case, which involves the CBIA’s challenge to BAAQMD’s 2010 CEQA Thresholds of Significance and implementing guidelines For Toxic Air Contaminants (TACs) and particulate matter (PM2.5), limited solely to the “CEQA-in-reverse” issue. (See “Supreme Court Will Review “CEQA-In-Reverse” Issue in CBIA Case Challenging 2010 BAAQMD Air Quality Guidelines,” by Arthur F. Coon, posted 12/9/13.)
Continue Reading CEQA-In-Reverse Case Opening Brief Filed In California Supreme Court
“Bag It!” – Third Published CEQA “Bag Ban” Decision Upholds San Francisco’s Ordinance as Categorically Exempt While Slamming Plaintiff’s Arguments
By Arthur F. Coon on
Plaintiff Save the Plastic Bag Coalition (Coalition) lost a third consecutive published appellate decision in its litigation campaign to require EIRs for virtually all local ordinances that ban or restrict the use of single-use plastic bags in favor of alternatives deemed environmentally superior. The First District Court of Appeal’s opinion in Save the Plastic Bag Coalition v. City and County of San Francisco (1st Dist., Div. 2, 2014) 222 Cal.App.4th 863, Case No. A137056, which was filed December 10, 2013, and later ordered published on January 3, 2014, extended the existing CEQA precedents to a local ordinance covering a significantly larger urban area – San Francisco – while showing little tolerance for the Coalition’s contrary arguments.
First District “Doubts” CEQA Operates In Reverse, Upholds Mitigated Negative Declaration For Urban Infill Project Despite Soil and Groundwater Contamination In Parker Shattuck Neighbors
By Arthur F. Coon on
In an opinion recently ordered published, the First District Court of Appeal extensively reviewed the relevant case law and expressed skepticism that CEQA would operate in reverse to require analysis of potential impacts on a mixed-use project’s construction workers and future residents from pre-existing soil contamination at the project site. Yet, while illuminating its tentative views on this important CEQA issue, the Court stopped short of expressly relying on them, and instead upheld the project’s challenged Mitigated Negative Declaration (MND) based on plaintiffs’ failure to identify substantial evidence in the administrative record supporting a fair argument that disturbance of the site’s contaminated soils may have a significant effect on the environment. Parker Shattuck Neighbors, et al, v. Berkeley City Council, et al (CityCentric Investments, LLC, et al, Real Parties in Interest), 222 Cal.App.4th 768, Case No. A136873 (1st Dist., Div. 4 2013), filed 11/7/13; pub. order 12/4/13 (rec’d from court 12/30/13).
Judicial CEQA Reform On Supreme Court’s Docket In Coming Year?
By Arthur F. Coon on
Posted in Litigation, Reform
Few would dispute that the California Supreme Court has played a leading role in judicial CEQA reform in recent years. It has clarified the law on the operation of CEQA’s statues of limitations, and attempted to bring more coherence and common sense to the fundamental rules and concepts governing the statute’s scope, operation and timing.
Having issued another major decision in 2013 clarifying the law on environmental baseline analysis (see Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 [CEQA requires project impact assessment against “existing conditions” baseline, disallows sole reliance on “future conditions” baseline unless substantial evidence shows existing conditions baseline would be misleading or without informational value]), the Supreme Court is poised to tackle several more important CEQA issues in decisions that may be forthcoming the next year.
Continue Reading Judicial CEQA Reform On Supreme Court’s Docket In Coming Year?
Supreme Court Will Review “CEQA-In-Reverse” Issue In CBIA Case Challenging 2010 BAAQMD Air Quality Guidelines
By Arthur F. Coon on
On November 26, 2013, the California Supreme Court by unanimous vote granted review of a fundamental legal issue that repeatedly has surfaced in recent years in both published appellate opinions and the legislative debate over CEQA reform: Does CEQA ever operate “in reverse”? That is, is CEQA review confined to an analysis of a proposed project’s impacts on the existing environment, or does it also require analysis of the existing environment’s impacts on the proposed project and its future occupants and users?
The case is CBIA v. BAAQMD (Supreme Court Case No. S213478), a decision in which the First District Court of Appeal rejected the CBIA’s facial challenge to BAAQMD’s 2010 Thresholds of Significance and Guidelines for Toxic Air Contaminants, and at the same time called into question the “continued vitality” of a line of appellate cases holding that the “reverse application” of CEQA is inconsistent with its language and intent. For my analysis of the Court of Appeal’s opinion, which has been vacated by the Supreme Court’s grant of review, see “Adoption of CEQA Thresholds of Significance Is Not A CEQA “Project,” First District Holds In Reinstating BAAQMD’s 2010 Air Quality Guidelines,” by Arthur F. Coon, posted on August 16, 2013.
All About “Commitment”: CEQA Review is Not Triggered By Orange County’s AB 900 Application For State Funding To Expand Existing Jail Facility, Which Was Not A Project Approval
By Arthur F. Coon on
In a decision recently ordered published, the Fourth District Court of Appeal added to the growing progeny of Save Tara, and affirmed the trial court’s judgment denying the City of Irvine’s writ petition seeking to compel Orange County to prepare an EIR for its submittal of an application for state funding to expand a jail facility. City of Irvine v. County of Orange (4th Dist., Div. 3, 2013) 221 Cal.App.4th 846. County’s funding application under the State’s AB 900 process did not commit it to a definite course of action regarding the jail expansion, however, and was merely a preliminary funding step; it was therefore not the “approval” of a project requiring CEQA review.
First District Rejects CEQA Challenge To City of Napa’s Reliance On Prior General Plan EIR For Housing Element Update Project
By Arthur F. Coon on
The EIR has long been the judicially-proclaimed “heart of CEQA” because it represents the culmination of the statute’s environmentally-protective purposes and objectives. Yet the legal “expiration date” for the document embodying CEQA’s highest purposes is often subject to debate and confusion. A public agency’s reliance on an “old” EIR is inherently fraught with the risk of legal challenge by project opponents. But, as a recent First District decision reminds, such reliance may be perfectly proper under CEQA’s applicable rules, which focus in this context on not “reinventing the wheel” – the “wheel” being the EIR – without very good reason to do so; they also defer to the lead agency’s reasoned decision in this regard.