On February 22, 2013, Senator President Pro Tempore Darrell Steinberg introduced SB 731, a bill the Senator’s website press release described as “outlining the detailed intent that strengthens [CEQA’s] protection of the state’s environment and residents while modernizing the law to help the growth of California’s economy.”  Notable features of SB 731 include:

Continue Reading “Bare-Bones” CEQA Reform Bill (SB 731) Introduced By Senator Steinberg; Senator Evans Proposes Legislation to Further Expand CEQA

After receiving three separate petitions for review, including petitions from real parties Wal-Mart Stores, Inc. and the City of Sonora, the California Supreme Court voted unanimously on February 13, 2013 to grant review of the Fifth District’s controversial decision in Tuolomne Jobs & Small Business Alliance v. Superior Court (Wal-Mart Stores), Supreme Court Case No. S207173.  The League of California Cities had also requested depublication of the Fifth District’s decision while the petitions for review were pending.

Continue Reading Supreme Court Will Review CEQA Decision From Fifth District In Wal-Mart Citizen Initiative Case

Hot on the heels of Governor Jerry Brown’s 2013 State of the State address, which raised the need for CEQA reform (as noted in my immediately-preceding blog post), a trio of former California governors has echoed and amplified Brown’s observations.  In an op-ed special to The Sacramento Bee published February 3, 2013, former Governors George Deukmejian, Pete Wilson and Gray Davis – all members of the non-partisan, non-profit Southern California Leadership Council – decried CEQA’s abuses and called for its meaningful reform and modernization, stating: “As three former California governors who often have differing views, on this point we wholeheartedly agree, and join with Gov. Brown in his call to modernize CEQA.”

Continue Reading Perfect Storm for CEQA Reform In 2013? Former Govs Weigh In

In his 2013 State of the State address delivered on January 24, 2013, Governor Jerry Brown focused on education, health care, jobs, and the interrelated areas of climate change, water, transportation and the high speed rail project. Continuing an express agenda of CEQA reform originating during his time as Oakland’s mayor, the Governor stated the following in his discussion on jobs:  “We also need to rethink and streamline our regulatory procedures, particularly the California Environmental Quality Act.  Our approach needs to be based on consistent standards that provide greater certainty and cut needless delays.”

Continue Reading CEQA Reform Goal Is Noted In Governor’s State of the State Address

Harmonizing CEQA’s rules and principles is, to say the least, not always easy, and is often quite challenging.  The relevant concepts are often in tension, or are so malleable that they can be argued or construed to conflict.  For example, environmental review must commence at the earliest “practicable” time, in order to make fully informed decisions at a project’s formative stages and avoid undue project “momentum” or “post-hoc rationalizations”; yet it should not occur so early that it would be “speculative” or not “meaningful” due to lack of sufficient data from a crystallized development project proposal.  To cite another example, a “project” refers to the “activity being approved,” but also to the “whole of an action” and not just individual discretionary permits that trigger CEQA review.  And, a “project approval” occurs at the lead agency’s earliest commitment to a “definite course of action” regarding a proposed project.  Fuzzy concepts like these can be difficult to apply, and supply ample fodder for CEQA litigation.  They tend to produce heavily fact-specific decisions offering unclear guidance to lead agencies and project proponents.

Continue Reading Fourth District Applies CEQA’s “Murky” Piecemealing Tests To Reject “Project Definition” Challenge To Park Development in Banning Ranch Conservancy

It is a fundamental precept of CEQA that it applies only to the discretionary approval of a project.  If an agency has no discretion to deny or shape the project to address environmental concerns, CEQA review would be a pointless and futile exercise, no matter what adverse environmental impacts of the project it might reveal.  Recent decisions continue to illustrate how an agency’s discretion under substantive law constrains CEQA’s applicability as a threshold matter, and how it can also affect the scope of required environmental review when CEQA does apply.

Continue Reading Recent Cases Show How CEQA’s Applicability And Substantive EIR Requirements Are Determined By Meaningful Agency Discretion

The Respondent City of Berkeley and Real Parties (Kapors) filed their joint Reply Brief on the Merits in the California Supreme Court in a much-watched categorical exemption case, Berkeley Hillside Preservation, et al. v. City of Berkeley, et al. (No. S201116).  The case arose from the City’s approval of a large, single-family hillside home as categorically exempt from CEQA notwithstanding project opponents’ contention that an exception to the exemptions applied due to the project’s potential for significant environmental impacts. (See my initial post on May 23, 2012 [“Supreme Court Will Review Categorical Exemption Exception in Berkeley Hillside Preservation Case”], and follow-up posts on August 2, 2012, and October 25, 2012.)

Continue Reading Supreme Court Case Involving CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions Now Fully Briefed by Parties; Amicus Briefs Are Up Next in Berkeley Hillside Preservation Matter

Meaningful CEQA reform is a topic much discussed by politicians and stakeholders, but its realization remains elusive.  For example, in-fill exemptions are fettered with multitudes of complex and convoluted conditions and exceptions to the point of uselessness.  In addition, many of the law’s most basic concepts – e.g., standards of review for exemptions; standards for permissible deferred mitigation; requirements for EIR alternatives and cumulative impacts analysis; what constitutes a “project approval,” or the appropriate environmental “baseline” – are unclear and frequently misapplied.  And what constitutes an “abusive” or “frivolous” CEQA lawsuit brings much debate among CEQA attorneys.  The uncertainty that results from these circumstances can substantially delay, increase the costs of, and ultimately kill even thoughtful, well-designed development projects.  Yet CEQA has undeniably protected and improved the quality ofCalifornia’s environment over the last 40 years and reform proposals understandably tend to be viewed with skepticism; many fear “throwing out the baby with the bathwater.”

Continue Reading CEQA Standing Reform: Could Statutory Standing Requirements Feasibly Be Tightened To Bar Anti-Competitive Lawsuits Motivated By Economic Rather Than Environmental Concerns?

In a recent published decision addressing cumulative impacts, deferred mitigation, and water supply analysis issues, the Fourth District Court of Appeal’s most significant CEQA pronouncements may have been those addressing permissible remedies under Public Resources Code § 21168.9.  Specifically, in Preserve Wild Santee v. City of Santee (4th Dist. 2012) 210 Cal.App.4th 260, the Court of Appeal made the following points:

Continue Reading Common Sense Reading of CEQA Remedies Statute Authorizes “Limited Writ” for Violations, Fourth District Holds, Rejecting Contrary Fifth District Decision

In a case notable for its unique conception of “meaningful discretion” for purposes of triggering CEQA review, the Fifth District Court of Appeal has created a split in authority that will undoubtedly require Supreme Court review (or depublication) to resolve.  In its partially published opinion in Tuolumne Jobs & Small Business Alliance v. Superior Court of Tuolumne County (Wal-Mart Stores, Inc., RPI) (5th Dist.10/30/12) ___ Cal.App.4th ___ 2012 WL 5350450, the Court of Appeal granted a writ of mandate directing the Superior Court to overrule a demurrer it had sustained without leave to two causes of action of a CEQA writ petition.  The petition challenged the City of Sonora’s action approving without alteration a qualified citizen-initiated ballot proposal — dubbed the “Walmart Initiative” — that would enact the necessary legislative approvals (general plan, specific plan and zoning enactments) to expand an existing 130,000-square foot Walmart store into a larger “Supercenter” that sold groceries and operated 24 hours a day, seven days a week.  Continue Reading Impossible and Useless CEQA Review Is Required If City Opts Under Elections Code to Adopt Legislative Project Approvals Proposed By Qualified Citizen Initiative Petition – Fifth District’s Holding In Walmart Rejects Fourth District Precedent and Creates Split In Authority