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

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:

Continue Reading CEQA, Sausages, And The Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions

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.

Continue Reading Steinberg Drops Statewide CEQA Reform Bill (SB 731) After Meeting With Governor Brown

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.

Continue Reading Third District Holds CEQA Analysis of GHG Emissions Was Inadequately Quantified To Support EIR’s Mitigation Conclusion in Friends of Oroville

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.

Continue Reading Depublication Of Fifth District CEQA Decision Creating Conflict On Common Interest Doctrine Sought By Infill Builders

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.

Continue Reading Adoption of CEQA Thresholds of Significance Is Not A CEQA “Project,” First District Holds In Reinstating BAAQMD’s 2010 Air Quality Guidelines

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

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.)

Continue Reading First District Holds CEQA Categorical Exemptions For Regulatory Agency Actions To Protect The Environment Apply To Marin County’s Plastic Bag Ban Ordinance, Recognizes Case Law Split On Standard Of Review For Exceptions

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.

Continue Reading First District Publishes Significant CEQA Decision On Legal Feasibility Of Mitigation For Prime Farmland Losses In Masonite Corporation v. County Of Mendocino

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.

Continue Reading 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