After years of study, Marin County adopted an Ordinance in 2011 banning single-use plastic bags and mandating a 5-cent fee on single-use paper bags; the ordinance applies to roughly 40 retailers in the unincorporated county. The county found the ordinance categorically exempt from CEQA as “a regulatory action designed to assure the maintenance, restoration, enhancement, or protection of natural resources and the environment.” (See 14 Cal. Code Regs., §§ 15307, 15308.) Plaintiff Save the Plastic Bag Coalition (the “Coalition”) sued claiming CEQA required an EIR for such an ordinance, but the trial court denied its writ petition. On July 25, 2013, the Court of Appeal for the First Appellate District ordered published portions of its June 25, 2013 decision affirming the trial court’s judgment. (Save the Plastic Bag Coalition v. County of Marin, et al (1st Dist., Div. 3, 6/25/13, part. pub. order 7/25/13) 218 Cal.App.4th 209.)
First District Publishes Significant CEQA Decision On Legal Feasibility Of Mitigation For Prime Farmland Losses In Masonite Corporation v. County Of Mendocino
By Arthur F. Coon on
In a partially-published opinion filed July 25, 2013, the First District Court of Appeal reversed the trial court’s judgment denying a writ petition with directions that the County of Mendocino prepare and circulate a supplemental EIR for Granite Construction Company’s (Granite) terrace mining/sand and gravel quarry project adjacent to the Russian River near Ukiah. (Masonite Corporation Dist. v. County of Mendocino, et al (7/25/13, First Dist., Div. 3) 218 Cal.App.4th 230.) The opinion was mostly unpublished, with the noteworthy exception of a portion addressing mitigation for loss of prime farmland, which squarely held that Agricultural Conservation Easements (ACEs) constitute legally-feasible mitigation for the direct loss of prime farmland.
Sixth District Holds CEQA Action Barred By 30-Day Statute of Limitations of Government Code Section 65457 Despite City’s Filing of Notice of Exemption
By Arthur F. Coon on
A recent Sixth District Court of Appeal decision serves as a pointed reminder to practitioners that CEQA exemptions and limitations periods are not always neatly grouped within those statutory provisions of the Public Resources Code known as the “California Environmental Quality Act” (“CEQA”; Pub. Resources Code, § 21000 et seq.). Statutes other than CEQA, including provisions codified in the Education Code, Government Code, Health & Safety Code, Water Code, and non-CEQA portions of the Public Resources Code also provide statutory exemptions to CEQA’s requirements. In May v. City of Milpitas (6th Dist., 7/16/13) 217 Cal.App.4th 1307, the Court applied one such “outlier” statute — Government Code § 65457 — to affirm a judgment dismissing a carpenters’ local union’s CEQA challenge to a residential development project as time-barred.
CARB Violated CEQA In Adopting GHG Regulations, But Fifth District Holds Regulations May Remain Operative Pending Compliance
By Arthur F. Coon on
In a mostly-published 95-page opinion filed July 15, 2013, the Fifth District Court of Appeal reversed a trial court’s judgment and directed issuance of a writ of mandate setting aside Resolution 09-31 and two executive orders of the California Air Resource Board (CARB) approving Low Carbon Fuel Standards (LCFS) regulations promulgated to reduce greenhouse gas (GHG) emissions. (Poet, LLC, et al. v. California Air Resources Board, et al (5th Dist. 7/15/13) 217 Cal.App.4th 1214, as modified on denial of rehearing at 218 Cal.App.4th 681, No. F064045.) However, despite its finding that CARB’s actions “ran afoul of several procedural requirements imposed by CEQA and the APA” and that “these procedural violations are not trivial,” the Court tailored its remedy to protect the public interest by “allow[ing] the LCFS regulations to remain operative while [C]ARB complies with the procedural requirements it failed to satisfy.” It stated: “In other words, we will avoid the irony of violations of an environmental protection statute being used to set aside a regulation that restricts the release of pollutants into the environment.”
Navigating Between CEQA’s Scylla and Charybdis: First District Applies Save Tara Analysis and Rejects Claims of Improper Project “Preapproval” in Neighbors For Fair Planning v. City and County of San Francisco
By Arthur F. Coon on
One of the most vexing issues arising under CEQA, particularly in cases of projects involving public-private partnerships or projects requiring public agency financial assistance, is the question of when project approval occurs. Like pregnancy, project approval is an all-or-nothing condition with profound consequences – yet the law provides no “bright line” test for when project approval, and the concomitant requirement of completed CEQA review, occurs.
No Common Interest In CEQA Compliance Prior To Project Approval, Holds Fifth District In City of Ceres Decision That Conflicts With Third District’s California Oak Decision And Common Practice
By Arthur F. Coon on
In a partially-published appellate writ decision filed July 8, 2013, the Fifth District Court of Appeal held that while CEQA’s administrative record statute (Pub. Resources Code, § 21167.6) does not impliedly abrogate the lead agency’s attorney-client privilege (or any other privileges), any privilege is waived as to any documents shared with the project developer’s counsel prior to project approval. (Citizens For Ceres v. The Superior Court of Stanislaus County, City of Ceres, et al. (Real Parties) (5th Dist. 2003) 217 Cal.App.4th 889, Case No. F065690. According to the Court, such documents are not protected from disclosure – and consequent inclusion in the administrative record in CEQA cases – by the common interest doctrine (derived from Evid. Code, §§ 912 and 952) “because the interests of a lead agency and a project applicant diverge fundamentally while the project application is pending….” The Court’s decision left to another day the issue whether “administrative draft” documents may properly be excluded from the administrative record (because the trial court had not yet ruled on the issue), but appeared to express skepticism on that score in an unpublished portion of its opinion.
The New Range Wars: CEQA and the Williamson Act Are Deployed To Fight Global Warming Solutions In Save Panoche Valley
By Arthur F. Coon on
Nothing says “battle royal” quite like pitting several of California’s heavyweight environmental laws against one another in a “winner-take-all” litigation brawl. The Sixth District Court of Appeal recently presided over such a conflict in Save Panoche Valley v. San Benito County (6/25/13) 217 Cal.App.4th 503, a published decision in which it affirmed a judgment rejecting CEQA and Williamson Act-based challenges to the County’s EIR and findings approving a large solar power plant project on 4,885 acres of cattle grazing land in San Benito County.
Is “Parking” Really A CEQA Impact? Same As It Ever Was!
By Arthur F. Coon on
Judging by all the recent articles and blog posts written about it, many commenters believe the Court of Appeal’s recent decision in Taxpayers For Accountable School Bond Spending v. San Diego Unified School Dist. (“Taxpayers”) (4th Dist 2013) 215 Cal.App.4th 1013 has broken (or at least replowed) significant legal ground and created serious new problems for local agencies and project developers by reinstituting a former CEQA requirement that a project’s impacts on “parking” be analyzed.
Continue Reading Is “Parking” Really A CEQA Impact? Same As It Ever Was!
CEQA Determination Is Item of Business That Must Be Agendized Under Brown Act, Fifth District Holds
By Arthur F. Coon on
In a partially-published opinion, the Fifth District Court of Appeal held that the Merced County Planning Commission’s failure to mention in its posted agenda that it was considering adoption of a mitigated negative declaration (MND) in connection with a minor subdivision approval violated the Brown Act. (San Joaquin Raptor Rescue Center v. County of Merced, et al. (5th Dist. 5/31/13) 216 Cal.App.4th 1167. Key points of the published portion of the opinion include:
CEQA School In Session: First District Reverses Judgment Invalidating EIR for Desalination Plant Project In North Coast Rivers Alliance
By Arthur F. Coon on
In a lengthy published opinion filed May 21, 2013, the First District Court of Appeal reversed a judgment granting a writ of mandate and upheld as legally adequate under CEQA the Marin Municipal Water District’s EIR for development and construction of a desalination plant in Marin County. (North Coast Rivers Alliance, et al. v. Marin Municipal Water District Board of Directors (1st Dist., Div. 4, 2013) 216 Cal.App.4th 614. The Court rejected Petitioner North Coast Rivers Alliance’s (Alliance) challenges to the adequacy of the EIR’s analysis of the project’s aesthetic, land use, seismic, hydrology, water quality, biological resources, and cumulative GHG impacts, as well as its challenges to the EIR’s environmental setting description of baseline physical conditions and alleging that various of its mitigation measures were improperly deferred. In light of its reversal of the judgment, the Court dismissed the District’s related appeal of a post-judgment order awarding attorneys’ fees to Alliance as moot.