My October 31 presentation with David Ivester for the Bay Planning Coalition on recent CEQA developments brought home the fact that while there has been only partial and incremental legislative reform (in the form of SB 743), the appellate Courts have remained very active, publishing roughly 30 decisions over the past year. I concur with David that legislative reform in 2014 (an election year) is unlikely, so it appears we will have to continue to look to the judiciary as the principal agent for change – for better or for worse. David’s opening anecdote about his conversation with an intelligent, non-lawyer friend underscoring the need for CEQA reform was compelling – something just seems wrong if, after a legion of environmental professionals (including agency staff, planners, environmental consultants, and legal counsel) has thoroughly vetted a development project and its environmental review, it still stands only a 50% chance of prevailing if challenged in Court.
Depublication of Controversial CEQA Common Interest Case Denied by Supreme Court, Leaving Troublesome Split of Authority
By Arthur F. Coon on
On October 16, 2013, 60 days after the request was submitted, the California Supreme Court denied Infill Builders’ request to depublish Citizens for Ceres v. Superior Court (5th Dist. 2013) 217 Cal.App.4th 889, a decision concerning the scope of the “common interest” exception to privilege waiver by disclosure in CEQA cases. Ceres, which has been heavily criticized by the CEQA/land use bar, holds that while CEQA’s administrative record statute (Pub. Resources Code, § 21167.6) does not impliedly abrogate privilege, any privilege (including attorney-client and work product protection) is waived as to documents shared between the lead agency’s and project developer’s counsel at any time prior to project approval. This holding conflicts with the holding and reasoning of the Third District Court of Appeal in California Oak Foundation v. County of Tehama (3d Dist. 2009) 174 Cal.App.4th 1217, 1222-1223, which held that the common interests of the agency and the developer – for example, in producing a legally-sufficient EIR that will withstand legal challenge – could protect reasonably necessary disclosures of privileged information between them from being deemed a waiver.
Plaintiff’s Failure to Request CEQA Hearing Within 90 Days of Filing Petition Due to Lead Attorney’s “Excusable” Calendaring Error Warrants Discretionary Relief Under CCP § 473, Holds Second District
By Arthur F. Coon on
The important legislative policy of expediting CEQA litigation sometimes inevitably conflicts with the policy favoring resolution of cases on their merits. This conflict is never more sharp than when a CEQA plaintiff’s counsel seeks relief from a default or mistake that would otherwise terminate a CEQA action in the defendant’s favor. In the recently-published decision in Comunidad En Accion v. L.A. City Council (2nd Dist., Div. 8, 9/20/13) 219 Cal.App.4th 1116, the Second District Court of Appeal resolved such a conflict by reversing the dismissal of a CEQA action and holding the trial court abused its discretion by denying discretionary relief under Code of Civil Procedure § 473 for counsel’s failure to timely comply with CEQA’s mandatory hearing request requirement due to an “excusable” failure to calendar the deadline. Due to reasoning that seems to conflict with that of other decisions involving CEQA’s mandatory hearing request and statute of limitations provisions, and the case’s unusual posture – i.e., reversing a trial court’s discretionary CCP § 473 decision under the “abuse of discretion” standard – the decision is noteworthy.
Recent CEQA Developments In The Legislature And Courts
By Arthur F. Coon on
As we move past summer, into fall, the “back-to-school,” and football seasons, and toward daylight savings time – and a possible shutdown of the federal government – it is time to reflect and take stock of the really important things . . . like recent CEQA developments of interest:
- SB 743 signed by Governor Brown.
On September 27, 2013, and as expected, Governor Brown signed into law SB 743, the year’s only significant, albeit incremental, “CEQA reform” measure. For a summary of SB 743’s substantive content – as well as what the new law doesn’t do – see “CEQA, Sausages, And The Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions” by Arthur F. Coon and Matthew C. Henderson, posted on September 16, 2013.
Continue Reading Recent CEQA Developments In The Legislature And Courts
CEQA, Sausages, And The Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions
By Arthur F. Coon on
Posted in Legislation, Reform
In a flurry of eleventh-hour activity following Senate President Pro Tem Darrell Steinberg’s withdrawal of SB 731 from consideration (see 9/13/13 post “Steinberg Drops Statewide CEQA Reform Bill (SB 731) After Meeting with Governor Brown,” by Arthur F. Coon), both houses of the California Legislature passed an amended Senate Bill 743 on September 12, 2013. SB 743 enacts a number of changes to the California Environmental Quality Act (“CEQA”; Pub. Resources Code, § 21000, et seq.) that are designed to “modernize” the statute and streamline some of its procedures for certain projects. Demonstrating that politics is “the art of the possible,” Senator Steinberg was successful, in the waning hours of the legislative session, in importing several generally-applicable CEQA reform provisions from former SB 731 into SB 743, whose primary focus theretofore had been easing the CEQA review path for a new Sacramento Kings arena. After this bit of legislative “sausage making” (which is expected to be followed by Governor Brown’s signature), the revised SB 743 includes the following generally-applicable CEQA provisions:
Steinberg Drops Statewide CEQA Reform Bill (SB 731) After Meeting With Governor Brown
By Arthur F. Coon on
Posted in Legislation, Reform
Proposed legislative CEQA reform for 2013 has gone out, not with a bang, but with a … dribble? After meeting with Governor Brown, on September 11, 2013, Senator Darrell Steinberg abruptly withdrew his much-ballyhooed CEQA “reform” bill, SB 731, from consideration, canceling a hearing set before the Committee on Local Government, and threw his support behind a much different CEQA bill, SB 743, which paves the way for a new downtown Sacramento Kings arena.
Third District Holds CEQA Analysis of GHG Emissions Was Inadequately Quantified To Support EIR’s Mitigation Conclusion in Friends of Oroville
By Arthur F. Coon on
In a partially published opinion filed August 19, 2013, the Third District Court of Appeal reversed a judgment denying a writ petition challenging a Wal-MartSupercenterthat would replace an existing Wal-Mart store. Friends of Oroville v. City of Oroville (8/19/13) 219 Cal.App.4th 832, No. C070448. In the published portion of its opinion, the Court held the City’s EIR inadequately analyzed the project’s GHG emissions because substantial evidence did not support its finding that such emissions would be less than significant after mitigation.
Depublication Of Fifth District CEQA Decision Creating Conflict On Common Interest Doctrine Sought By Infill Builders
By Arthur F. Coon on
While Real Party in Interest Wal-Mart Stores did not elect to seek California Supreme Court’s review of the Fifth District’s controversial decision in Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, the California Infill Builders Federation (Infill Builders) submitted an August 16, 2013 letter to the high court requesting that the opinion be depublished pursuant to Rule 8.1125 of the California Rules of Court. Infill Builders’ 6-page letter, authored by noted CEQA attorney Tina Thomas, “requests that the Court depublish the Opinion because it creates a new bright line rule rendering the common-interest doctrine inapplicable to pre-project approval communications between a project proponent and a decisionmaking agency.” It asserts this “uniform, inflexible rule is inconsistent with CEQA and the statutes establishing the common-interest doctrine” in numerous respects.
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 on
In a published opinion filed August 13, 2013, the First District Court of Appeal, Division Five, reversed a trial court judgment that had invalidated the Bay Area Quality Management District’s (BAAQMD) adoption of 2010 “CEQA Air Quality Guidelines” because BAAQMD did not conduct CEQA review of their potential environmental impacts. (California Building Industry Association v. Bay Area Air Quality Management District (1st Dist., Div. 5, 2013) ___ Cal.App.4th ___, 2013 WL 4083221.) In reinstating the 2010 Guidelines, which set forth new thresholds of significance for GHGs, toxic air contaminants (TACs), and PM2.5 (particulate matter 2.5 microns or less in diameter), the Court of Appeal held that a public agency’s promulgation of thresholds of significance pursuant to the procedures of the CEQA Guidelines is not itself a “project” subject to CEQA review. In so holding, and in rejecting the other arguments offered by plaintiff California Building Industry Association (CBIA) in support of the judgment, the Court touched on several significant CEQA issues, and in the process overturned a substantial CCP §1021.5 attorneys’ fee award to CBIA since it was no longer a successful party.
High Court Tackles CEQA Future Baselines In Neighbors For Smart Rail Decision
By Arthur F. Coon on
In a much-anticipated decision filed August 5, 2013, the California Supreme Court held that CEQA requires a lead agency to assess a project’s environmental impacts against an “existing conditions” baseline – and consequently disallows sole reliance on a “future conditions” baseline – unless the agency shows “by substantial evidence that an analysis based on existing conditions would tend to be misleading or without informational value to EIR users.” Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al (8/5/13) 57 Cal.4th 439. In resolving a split of authority among the District Courts of Appeal on the issue, the high court itself was divided: While six justices agreed on the result of affirming the Court of Appeal’s judgment upholding denial of a writ, and four agreed on the rule stated above, three justices believed lead agencies should be given greater discretion to select the CEQA baseline, and one justice believed the EIR’s failure to include the “existing conditions” baseline analysis required by CEQA under the majority’s rule was prejudicial error requiring that the EIR and project approval be set aside. The bottom line is that defendant Exposition Metro Line Construction Authority (Expo Authority) may proceed to construct its light-rail transit line from Culver City to Santa Monica (the “Expo Phase 2” project), and CEQA practitioners now have some new environmental baseline rules to assimilate and employ when counseling their clients.
Continue Reading High Court Tackles CEQA Future Baselines In Neighbors For Smart Rail Decision