Preemption

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“Fishing is an art of patience and timing.” – Daan Uijterwaal

In a published opinion filed May 29, 2026, the First District Court of Appeal (Div. 3) affirmed a judgment denying a petition for a writ of ordinary mandamus to compel public agency respondents, including the City and County of San Francisco (“City”) and the San Francisco Public Utilities Commission (“SFPUC”), to immediately obtain an amended water supply permit and open the City-owned Calaveras Reservoir in its natural state to public fishing.  Timothy James Dummer v. City and County of San Francisco, et al. (2026) 120 Cal.App.5th 1009.  The Court held that the writ was properly denied because plaintiff and appellant Dummer had not demonstrated any failure by the public agency defendants to perform a ministerial duty under applicable law.

Continue Reading First District Holds CEQA Review of Calaveras Reservoir Fishing Program Proposed Pursuant to Health and Safety Code Requirements Is Prerequisite to Reservoir Owner San Francisco’s Application to SWRCB for Amended Water Supply Permit Allowing Public Fishing; Rejects Mandate Petitioner’s Arguments that State Statutes and Constitution Imposed Ministerial Duty on City to Provide Immediate Public Fishing Access to Reservoir In Its Natural State

In a partially published opinion filed October 31, 2024, the Second District Court of Appeal (Div. 1) held, in light of AB 1307 and the Supreme Court’s decision in Make UC a Good Neighbor v. Regents of University of California (2024) 16 Cal.5th 43 (”Make UC II”), that noise from residents congregating on a USC-area residential housing project’s rooftop decks “do[es] not constitute a significant environmental effect impeding application of the Class 32 exemption[,]” including through attempted invocation of the unusual-circumstances exception.  West Adams Heritage Association et al. v. City of Los Angeles (Robert Champion at al, Real Parties in Interest) (2024) 106 Cal.App.5th 395.  The Court held that reversal was required for another reason, however, as the City failed to determine the project’s consistency with an applicable redevelopment plan, which the City had by ordinance incorporated into its applicable zoning, prior to granting the exemption.  (In the unpublished portion of its opinion, which won’t be further discussed in detail here, the Court also rejected appellants’ CEQA challenges to the infill exemption based on alleged significant traffic safety, historical resources, and cumulative impacts.)

Continue Reading Fight On! After Grant and Transfer, Second District Holds Upon Reconsideration that Resident Noise Does Not Preclude CEQA Class 32 Infill Exemption for USC Area Housing Development Project; But Also Holds City Must First Find Project Consistent With Redevelopment Plan Incorporated Into Zoning Before Granting Exemption

On April 7, 2023, the Third District Court of Appeal filed a lengthy published opinion – the latest installment in one of the longer ongoing CEQA battles in recent memory – affirming a judgment finding an EIR for the Federal relicensing of Oroville Dam and related hydropower facilities legally adequate.  County of Butte and County of Plumas, et al v. Dept. of Water Resources  (2023) 90 Cal.App.5th 147.

Continue Reading That Dam Case (Again):  Third District Upholds Oroville Hydropower Facilities Relicensing EIR Against Numerous CEQA Challenges

In a published opinion filed on February 23, 2023, the Fourth District Court of Appeal reversed a judgment of dismissal after the sustaining of a demurrer and held that an amended writ petition challenging a city’s street closure project sufficiently stated claims against the city for Vehicle Code, local ordinance, and CEQA violations.  Committee to Relocate Marilyn v. City of Palm Springs (PS Resorts, Real Party in Interest) (2023) 88 Cal.App.5th 607.  As relevant here, it held the operative petition was not time-barred despite its first alleging CEQA violations more than 35 days after the City’s filing of a Notice of Exemption (“NOE”) because the City subsequently changed its project from a street vacation to an allegedly temporary street closure and Petitioner (the “Committee” or “Petitioner”) filed its amended petition alleging a CEQA claim within 180 days of learning of the change.

Continue Reading “Permanent Vacation” In Palm Springs? – Fourth District Holds CEQA’s Short 35-Day Statute of Limitations Does Not Apply Despite City’s Filing of NOE Due To Subsequent Material Change In Street Vacation Project Which Triggered Maximum 180-Day Limitations Period

On February 15, 2023, the California Supreme Court denied the petitions for review and issued an order decertifying the Second District Court of Appeal’s controversial (and previously published) opinion in G.I. Industries v. City of Thousand Oaks (2022) 84 Cal.App.5th 814, rev. den. and depub’d. 2/15/23 (Supreme Ct. Case No. S277439).  (My prior posts on this decision and its subsequent procedural history can be accessed by clicking on their following dates:  10/31/22; 12/5/22; and 1/30/23.) 

Continue Reading Supreme Court Denies Review And Depublishes Troublesome Brown Act/CEQA Exemption Decision

In an opinion in a much-publicized case, filed December 28, 2022, and later ordered published on January 26, 2023, the First District Court of Appeal (Div. 3), upheld the City of Livermore’s (“City”) approval of a 130-unit affordable housing project on a downtown infill site and its accompanying determination that the project was CEQA-exempt under Government Code section 65457 (“Section 65457”).  (Save Livermore Downtown v. City of Livermore (2023) 87 Cal.App.5th 1116 (“SLD”).)  The important opinion was ordered published based on requests submitted by City, Attorney General Rob Bonta, YIMBY, and the California Building Industry Association.

Continue Reading First District Upholds Use of Government Code Section 65457 CEQA Exemption For Downtown Livermore Affordable Housing Project, Roundly Rejects Meritless Arguments of NIMBY Opposition

In a 5-2 opinion filed August 1, 2022, a divided California Supreme Court held the Federal Power Act (“FPA”; 16 U.S.C. § 791a et seq.) does not “occupy the field” and entirely preempt CEQA’s application to the state’s participation, as applicant and hydroelectric facility owner/operator, in the Federal Energy Regulatory Commission (“FERC”) licensing process the FPA requires to operate such facilities.  County of Butte v. Department of Water Resources (2022) 13 Cal.5th 612, Case No. S258574.  Acknowledging the result would likely be different if a private party were the license applicant, the Court applied a narrower type of direct conflict preemption, based on a state entity being the facility owner/operator/applicant.  The majority did agree with the Third District Court of Appeal that the Counties challenging the State Department of Water Resources’ (“DWR”) EIR, prepared in connection with its application to renew a 50-year license to operate its Butte County Oroville dam and related hydroelectric facilities, could not seek to unwind a settlement agreement prepared as part of FERC’s application process and proceedings; nor could they seek to enjoin DWR from operating under the proposed (but not yet issued) license – a request for relief the Counties initially pursued, but apparently abandoned at oral argument before the Supreme Court.  The Court’s majority acknowledged such actions would contravene FERC’s “sole jurisdiction” over licensing process disputes and be preempted under longstanding federal law.  (18 C.F.R. § 4.34 (i)(6)(vii); First Iowa Coop. v. Federal Power Comm’n (1946) 328 U.S. 152, 164 (“First Iowa”).)
Continue Reading California Supreme Court Holds In 5-2 Decision, Over Chief Justice’s Strong Dissent, That Federal Power Act Does Not Fully Preempt CEQA’s Application to FERC’s Licensing Process for State-Owned and Operated Hydroelectric Projects

“The more I know, the less I understand/All the things I thought I’d figured out, I have to learn again” – Don Henley, “The Heart of the Matter”

One of CEQA’s bedrock principles is that environmental review must precede project approval.  (E.g., POET, LLC v. California Air Resources Board (2013) 217 Cal.App.4th 1214; CEQA Guidelines, § 15004(a).)  To reverse the order and “put the cart before the horse” would be anathema, i.e., to sanction uninformed and undemocratic lead agency decision making, and to encourage irretrievable commitments of resources and post-hoc rationalizations that foreclose mitigations and alternatives and sweep environmental considerations under the rug.  Right?  Well …  maybe not.  In the area of State Water Resources Control Board (“SWRCB” or the “State Board”) water quality certifications (“WQCs”) under the Federal Clean Water Act (“CWA”; 33 U.S.C § 1251 et seq), this bedrock principle appears to have been watered down, and it may be significantly eroding under pressure from a preemptive federal law deadline.Continue Reading Must CEQA Compliance Precede Project Approval? When State Water Board Water Quality Certifications Are Involved, The Answer Is As “Clear as Mud”

On December 11, 2019, the California Supreme Court by a 7-0 vote granted the petition for review of Butte and Plumas Counties and the Plumas County Flood Control and Water Conservation District in County of Butte v. Department of Water Resources (State Water Contractors), Case No. S258574 (formerly published at (3d Dist. 2019) 39 Cal.App.5th 708).  The order granting review, which also directed that the Third District’s opinion be depublished at the request of defendant and respondent Department of Water Resources (which interestingly filed no answer to the petition for review), specified the following two issues for briefing:
Continue Reading California Supreme Court Grants Review of Third District Decision Involving FERC Relicensing of State’s Oroville Hydroelectric Dam Project To Decide Extent To Which Federal Power Act Preempts CEQA; Merits Briefing Underway