In an opinion filed August 27 and later ordered published on September 24, 2024, the Fifth District Court of Appeal affirmed a judgment denying a writ petition that challenged the State Air Resources Board’s (CARB) adoption of the Advanced Clean Trucks Regulation (Regulation) on CEQA and Administrative Procedures Act (APA; Gov. Code, § 11340 et seq) grounds. California Natural Gas Vehicle Coalition v. State Air Resources Board (2024) 105 Cal.App.5th 304. The Court held that CARB’s in-depth study of three alternatives (including the “no project” alternative) constituted a reasonable range for CEQA purposes; it further held that CARB’s alternative analysis wasn’t deficient for rejecting without in-depth study, as infeasible for policy reasons, an alternative proposed by opponents of the Regulation that would have applied a low-NOx vehicle credit to sales mandates applicable to zero-emission vehicles (ZEV). Based on the same reasoning, the Court held CARB also need not have considered the now-NOx vehicle credit as a mitigation measure for the acknowledged significant near-term air quality impacts of the Regulation. (The Court also rejected appellant Coalition’s APA arguments in a portion of its opinion that won’t be further discussed in this post.) Finally, the Court held on CARB’s affirmative appeal that any error with respect to the admission of a specific “white paper” document into the administrative record was nonprejudicial, and therefore harmless, as it did not impact either the trial court’s or its own analysis.Continue Reading Fifth District Affirms Judgment Rejecting CEQA/APA Challenges to CARB’s Approval of ZEV Truck Sales Mandate Regulation; Holds Alternatives and Mitigation Analyses Need Not Include Low-NOx Vehicle Credit Contrary to Project’s Underlying Fundamental Purpose
Project Definition
First District Holds CEQA Challenge To Shooting Range Project On City-Owned Land In Unincorporated County Was Not Mooted By Project’s Construction During Trial Court Proceedings Despite Petitioner’s Failure To Seek Preliminary Injunction
In a partially published opinion filed March 29, 2024, the First District Court of Appeal (Div. 4) rejected contentions that the pre-judgment completion of construction of a shooting range mooted a CEQA challenge to the project; it held an effective remedy in the form of various mitigation measures alleged in the CEQA petition remained available and reversed the trial court’s judgment entered in favor of respondents and real party after sustaining their demurrers and granting their motions to strike and for judgment on the pleadings. In addition to applying established mootness principles, the Court resolved a number of other issues in holding petitioner Vichy Springs Resort, Inc. (“Vichy”) had sufficiently alleged a CEQA claim at the pleadings stage against both the City of Ukiah (“City”) and the County of Mendocino (“County”) in a unique factual and legal context presenting novel issues of land use regulatory authority and intergovernmental immunity. Vichy Springs Resort, Inc. v. City of Ukiah, et al. (Ukiah Rifle and Pistol Club, Inc., Real Party in Interest) (2024) 101 Cal.App.5th 46.Continue Reading First District Holds CEQA Challenge To Shooting Range Project On City-Owned Land In Unincorporated County Was Not Mooted By Project’s Construction During Trial Court Proceedings Despite Petitioner’s Failure To Seek Preliminary Injunction
Sixth District Reverses Writ, Upholds Responsible Agency Monterey County’s Approval of Desalination Plant In Reliance on CPUC’s EIR For Multi-Component, Cross-Jurisdictional Water Supply Project; Court Rejects CEQA Challenges Based On County’s Decision Not to Prepare Subsequent EIR and Allegedly Inadequate Statement of Overriding Considerations
In an opinion originally filed on September 8, and subsequently modified and certified for partial publication on October 4, 2023, the Sixth District Court of Appeal reversed the trial court’s judgment granting a writ setting aside Monterey County’s issuance of a permit to investor-owned public utility/water supplier California-American Water Company (“Cal-Am”) to construct a desalination plant and related facilities needed as one component of Cal-Am’s Water Supply Project. Marina Coast Water District v. County of Monterey (California-American Water Company, Real Party in Interest) (2023) 96 Cal.App.5th 46. On Cal-Am’s appeal, the Court held the trial court erred in finding the County’s statement of overriding considerations prejudicially inadequate for not addressing the uncertainty created by the City of Marina’s (“City”) denial of a coastal development permit (“CDP”) – later granted with conditions by the Coastal Commission on appeal – for the drilling of intake wells in coastal zone aquifers to supply the plant. On project opponent Marina Coast Water District’s (“MCWD”) cross-appeal, the Court held that County’s decision not to require a subsequent EIR and its statement of overriding considerations were both supported by substantial evidence and (in an unpublished portion of its opinion not further discussed here) that County’s approval did not violate its own general plan.Continue Reading Sixth District Reverses Writ, Upholds Responsible Agency Monterey County’s Approval of Desalination Plant In Reliance on CPUC’s EIR For Multi-Component, Cross-Jurisdictional Water Supply Project; Court Rejects CEQA Challenges Based On County’s Decision Not to Prepare Subsequent EIR and Allegedly Inadequate Statement of Overriding Considerations
Recent Legislation Brings Incremental CEQA Reform
On September 7, 2023, Governor Newsom signed into law AB 1307, urgency legislation which took effect immediately and added to the Public Resources Code a new Section 21085, which reads: “For purposes of this division, for residential projects, the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment.”Continue Reading Recent Legislation Brings Incremental CEQA Reform
Second District Reverses Preliminary Injunction, Holds CEQA Cannot Trump Santa Barbara County’s Authority To Remove Unpermitted Encroachments Placed In Public Right-Of-Way By Adjacent Landowners
“I fought the law and the law won” – The Crickets
In an opinion filed July 19, and later ordered published on August 16, 2023, the Second District Court of Appeal (Div. 6) reversed the trial court’s grant of a preliminary injunction in a CEQA action enjoining the Santa Barbara County Road Commissioner from enforcing public laws by removing unpermitted encroachments from a public right-of-way. Christopher Anderson, et al. v. County of Santa Barbara, et al. (2023) 94 Cal.App.5th 554. The public officer’s law enforcement actions were held to be exempt from CEQA; to have independent utility apart from any alleged larger, “piecemealed” project evading CEQA review; and not to be subject to the “unusual circumstances” exception to applicable categorical exemptions. While the Court was careful to fully analyze all of petitioners’ CEQA arguments, its opinion also offered numerous other reasons why the trial court erred and exceeded its lawful authority under applicable legal principles in issuing the preliminary injunction.Continue Reading Second District Reverses Preliminary Injunction, Holds CEQA Cannot Trump Santa Barbara County’s Authority To Remove Unpermitted Encroachments Placed In Public Right-Of-Way By Adjacent Landowners
CEQA Does Not Apply To Investor-Owned Public Utility’s Exercise Of Power Of Eminent Domain To Acquire Electric Facilities Maintenance Easement
By Arthur F. Coon on
Posted in CEQA Guidelines, Energy, Land Use, Legislation, Project Definition, Takings, Uncategorized
In a published opinion filed March 2, 2023, the Fifth District Court of Appeal held that where no governmental approvals were required, an investor-owned public utility was not required to comply with CEQA prior to exercising its eminent domain power by filing an action to condemn a maintenance/access easement in connection with its existing electrical power transmission facilities located on and traversing private property. Robinson v. Superior Court of Kern County (5th Dist. 2023) 88 Cal.App.5th 1144. While most of the opinion involved eminent domain issues irrelevant to this blog, the pertinent issue here is a simple definitional one: CEQA applies only to “discretionary projects proposed to be carried out or approved by public agencies” (Pub. Resources Code, § 21080(a)), and CEQA’s definition of “public agency” includes only state agencies, boards and commissions, and local and regional agencies. (Pub. Resources Code, § 21063; CEQA Guidelines, § 15379.)Continue Reading CEQA Does Not Apply To Investor-Owned Public Utility’s Exercise Of Power Of Eminent Domain To Acquire Electric Facilities Maintenance Easement
First District Holds LA’s Water Allocations To Agricultural Lessees Were Authorized Under Existing Leases And Did Not Constitute Or Implement A Separate “Project” Subject to CEQA Review
The First District Court of Appeal filed on June 30, and later ordered published on July 26, 2022, its opinion in County of Mono v. City of Los Angeles (1st Dist. No. A162590) 81 Cal.App.5th 657. The case involves another round in the long-running controversies surrounding Los Angeles’s efforts to secure water for its populace. As the City now owns substantial acreage in the Sierra Nevada from which it takes much of its water, it serves both as landlord and water user in that region. The overlap of those two roles gave rise to the County of Mono case, in which the County sought to use CEQA litigation as leverage over the City’s water allocations to agricultural users who lease property from the City. The case holds that the City’s water allocations to the City’s agricultural lessees were authorized under its existing 2010 leases and thus did not constitute a new project subject to CEQA review before they could be lawfully implemented. The case provides guidance to practitioners on when and how CEQA applies to public contracts, and also regarding the appropriate contents of the administrative record in CEQA litigation challenging staff level actions implementing existing leases. Entitlement and litigation attorneys should accordingly both find it a useful case to review.
Continue Reading First District Holds LA’s Water Allocations To Agricultural Lessees Were Authorized Under Existing Leases And Did Not Constitute Or Implement A Separate “Project” Subject to CEQA Review
Second District Upholds EIR for Kern Water Bank Recharge Project Involving Diversion of Unappropriated Kern River Water In Certain Wet Years; Rejects CEQA Claims Alleging Inconsistent Project Description, Inaccurate Environmental Setting, And Inadequate Water Supply Impacts Analysis
By Arthur F. Coon on
In an opinion originally filed on February 23, and later modified and ordered published on March 22, 2022, the Second District Court of Appeal reversed the trial court’s judgment invalidating the Kern Water Bank Authority’s (“KWBA”) EIR and approval of its own project to divert unappropriated Kern River waters in certain wet years to recharge its Kern Water Bank (“KWB”). Buena Vista Water Storage District v. Kern Water Bank Authority (2022) 76 Cal.App.5th 576. In upholding KWBA’s EIR and reinstating its project approval, the Court addressed CEQA project description, baseline, and impact analysis issues in the context of a water diversion and recharge project involving excess flood waters from the not-fully-appropriated Kern River.
Continue Reading Second District Upholds EIR for Kern Water Bank Recharge Project Involving Diversion of Unappropriated Kern River Water In Certain Wet Years; Rejects CEQA Claims Alleging Inconsistent Project Description, Inaccurate Environmental Setting, And Inadequate Water Supply Impacts Analysis
First District Affirms Judgment Upholding Statutory CEQA Exemption For Housing Project Consistent With EIR-Reviewed Specific Plan, Rejects Claims That Changes In Project Or Circumstances Required Subsequent EIR
In an opinion filed on December 29, 2021, and later ordered published on January 25, 2022, the First District Court of Appeal (Div. 4) affirmed a judgment upholding the City of Newark’s (City) use of Government Code § 65457’s CEQA exemption for a 469-lot residential subdivision on land adjacent to San Francisco Bay. Plaintiffs unsuccessfully challenged the City’s 2019 subdivision map approval based on the claim that a subsequent EIR was required due to changes in the project and circumstances allegedly showing it would have new significant impacts on the endangered salt marsh harvest mouse (“harvest mouse”) and its wetlands habitat. Citizens’ Committee to Complete the Refuge, et al. v. City of Newark et al., (SI XVII, LLC, et al, Real Parties in Interest) (2021) 74 Cal.App.5th 460.
Continue Reading First District Affirms Judgment Upholding Statutory CEQA Exemption For Housing Project Consistent With EIR-Reviewed Specific Plan, Rejects Claims That Changes In Project Or Circumstances Required Subsequent EIR
A Teaching Moment? First District Affirms CEQA Action Demurrer Order Finding Late-Joined Developers of UC Berkeley Campus Project Were Necessary, But Not Indispensable, Real Parties In Interest
In a published opinion filed October 21, 2021, the First District Court of Appeal affirmed the trial court’s order finding the real party developers of a UC Berkeley campus development project – undertaken for the University’s benefit, and in which it had a strong vested interest – were necessary parties, but were not indispensable parties to a CEQA action challenging the project EIR under the factors of the Code of Civil Procedure (“CCP”) § 389(b). While the action was thus properly dismissed as against those real parties upon their demurrers due to plaintiff’s failure to join them within CEQA’s 30-day limitations period, it was not required to be dismissed in its entirety and could continue to final adjudication among the remaining parties. Save Berkeley’s Neighborhoods v. The Regents of the University of California (Collegiate Housing Foundation, American Campus Communities, et al, Real Parties in Interest) (2021) 70 Cal.App.5th 705.
Continue Reading A Teaching Moment? First District Affirms CEQA Action Demurrer Order Finding Late-Joined Developers of UC Berkeley Campus Project Were Necessary, But Not Indispensable, Real Parties In Interest