In a 51-page published opinion filed January 5, 2024, and resolving consolidated appeals, the Third District Court of Appeal rejected baseline, piecemealing/segmentation, impact analysis, project description, alternatives analysis, and failure-to-recirculate challenges to the EIR for the Department of Water Resources’ (“DWR”) approval of amendments to long-term water supply contracts with local government agencies receiving water through the State Water Project (“SWP”). The amendments extended the contracts, which were originally entered into in the 1960s for 75-year terms, so as to end in the year 2085, and made other amendments to their financial provisions. In the course of affirming the trial court’s judgment upholding the EIR and contract amendments against CEQA, Delta Reform Act, public trust doctrine, and other challenges, the Court of Appeal applied numerous well-established CEQA principles in the enormously significant and complex context of continuing long-term SWP contracts. Planning and Conservation League, et al v. Department of Water Resources, et al, etc. (2024) 98 Cal.App.5th 726 (Ct. App. Nos. C096304, C096316, C096384).Continue Reading Third District Rejects CEQA and Other Challenges to Department of Water Resources’ EIR for Amendments Extending Long-Term State Water Project Supply Contracts Through 2085
In a published opinion filed June 23, 2023, the Fourth District Court of Appeal (Div. 1) affirmed a judgment granting a writ of mandate directing the City of San Diego (City) to set aside its approvals of an ordinance submitting to the voters a ballot measure that would exclude the Midway-Pacific Highway Community Plan Area from the City’s 30-foot height limit on construction of buildings in the Coastal Zone. The Court held the City could not rely on a 2018 program EIR (PEIR) certified for an update of the area’s community plan as CEQA compliance because the PEIR did not contemplate or analyze the environmental impacts of removing the height limit and substantial evidence supported a fair argument that its removal may have significant unexamined impacts on views. Save Our Access v. City of San Diego (2023) 92 Cal.App.5th 819.Continue Reading Ocean Views Matter: Fourth District Holds Program EIR For Community Plan Update Didn’t Consider Potentially Significant View Impacts of City of San Diego’s Subsequent Approval of Ballot Measure Excluding Entire Area From City’s 30-Foot Coastal Zone Height Limit
In a published opinion filed June 9, 2023, the First District Court of Appeal (Div. 3) reversed the trial court’s judgment granting a writ of mandate in consolidated CEQA actions and upheld the adequacy of the UC Regents’ EIR for vegetation removal actions planned to occur within about 800 acres of hilly, forested and fire-prone land on UC Berkeley’s Hill Campus. The Claremont Canyon Conservancy v. The Regents of the University of California/Hills Conservation Network v. Carol T. Christ (2023) 92 Cal.App.5th 474. Continue Reading Missing the Forest For the Trees: First District Reverses Trial Court, Upholds Project Description And Impact Analysis In Regents’ EIR For Vegetation Removal Projects To Reduce Wildfire Risk At UC Berkeley Hills Campus
In a published opinion filed June 7, 2023, the Fifth District Court of Appeal held the trial court erred in applying California’s interrelated factors test to deny a preliminary injunction in a CEQA case. The error consisted of failing to consider harm to the public interests in informed decisionmaking and public disclosure as relevant informational harm to be weighed in evaluating the relative balance of harms likely to result from the erroneous granting or denial of the preliminary injunction. Tulare Lake Canal Company v. Stratford Public Utility District (Sandridge Partners, L.P., et al, Real Parties in Interest) (2023) 92 Cal.App.5th 380. Accordingly, the Court of Appeal reversed the order denying the preliminary injunction and remanded the matter to the trial court for reconsideration, while keeping in effect its writ of supersedeas continuing the trial court’s TRO in full force and effect.Continue Reading Fifth District Holds Harm To Public Interest In Informed Decisionmaking Must Be Considered By Court In Deciding Whether To Grant Preliminary Injunction In CEQA Case
In an opinion filed April 27, and certified for partial publication on May 19, 2023, the First District Court of Appeal (Div. 1) vacated the trial court’s order granting a writ directing the University of California’s Regents (Regents) to decertify a 2018 Supplemental EIR (2018 SEIR) for a campus development project and to suspend increases in student enrollment pending CEQA compliance; it further directed the trial court to dismiss the petition, which it held was largely mooted by the Regents’ certification of a 2021 EIR and the passage of CEQA amendments via SB 118, events that combined to preclude the Court’s ability to grant effective relief. Save Berkeley’s Neighborhoods v. The Regents of the University of California, et al. (2023) 91 Cal.App.5th 872. Continue Reading First District Holds Increased Enrollment-Related CEQA Challenges To UC Regents’ 2018 SEIR For Berkeley Campus Development And Minor LRDP Amendment Are Mooted By Superseding 2021 LRDP Update EIR And Passage Of SB 118
In a published opinion filed December 6, 2022, the Third District Court of Appeal reversed in part and affirmed in part the trial court’s judgment denying writ petitions in consolidated actions challenging the EIR for a major state government project affecting the Historic State Capitol Building and Annex in Sacramento. Save Our Capitol! v. Department of General Services (Joint Committee On Rules of the California State Senate and Assembly, Real Party in Interest)/Save the Capitol, Save the Trees v. Department of General Services, et al. (2022) 85 Cal.App.5th 1101. In the project’s final iteration, Defendant/Respondent Department of General Services and Real Party/Respondent Joint Committee, etc. (collectively, “DGS”) proposed to demolish the Historic Capitol’s 325,000 square-foot Annex, replace it with a larger 525,000 square-foot Annex building, construct a 40,000 square-foot underground visitor center attached to the Historic Capitol’s west side, and construct a 150-space underground parking garage east of the new Annex. While rejecting many of plaintiffs’ CEQA challenges to the project’s final EIR (FEIR), the Court of Appeal found merit in claims that the EIR’s project description, analyses of impacts to historical resources and aesthetics, and alternatives analysis were deficient. Accordingly, it directed issuance of a writ vacating the EIR certification and project approval and directing DGS to revise and recirculate the EIR’s deficient sections before again considering project approval. Continue Reading A “Capitol” Offense: Third District Holds State Capitol Building Annex/Visitor Center Project EIR Violated CEQA Due To Inadequate Project Description And Analyses Of Historical Cultural Impacts, Aesthetics, And Project Alternatives
On March 7, 2022, the Second District Court of Appeal (Div. 4) filed its published opinion in Southwest Regional Council of Carpenters, et al. v. City of Los Angeles, et al (The Icon at Panorama, LLC, Real Party in Interest) (2022) 76 Cal.App.5th 1154. In reversing the trial court’s judgment and writ setting aside the approvals and EIR for a mixed-use commercial and residential infill development project, the Court held the Project EIR did not violate CEQA’s requirement of an accurate, stable, and finite project description even though the project itself was revised and ultimately approved with components not matching those of any individual alternative studied in the EIR. The Court further held that the City’s addition of a fifth alternative to the Final EIR (FEIR) that was not significantly different from its other previously analyzed alternatives did not require recirculation for additional public comment, and that the City’s response to the sanitation department’s comment about local sewer line and sewage treatment plant capacity was adequate.
Continue Reading CEQA Mixed-Use “Mix and Match” Upheld: Second District Holds Stable Project Description Requirement Does Not Mean Ultimately Approved Version of Revised Mixed Use Project Must Match An Alternative Analyzed In EIR, And New Project Alternative Added to FEIR Does Not Require Recirculation
On May 12, the Third District Court of Appeal belatedly ordered partially published an opinion it had filed on April 20, 2022, reversing the trial court’s judgment upholding the EIR for lead agency Siskiyou County’s approval of Crystal Geyser Water Company’s water bottling plant project. We Advocate Through Environmental Review, et al. v. County of Siskiyou, et al. (Crystal Geyser Water Company, Real Party in Interest) (2022) ____ Cal.App.5th ______. The decision followed close on the heels of the Court’s earlier decision in a related CEQA case brought by the same plaintiff and involving the same project in which it held that the City of Mount Shasta, acting as a responsible agency issuing a wastewater permit for the project, had violated CEQA by failing to make the required Public Resources Code § 21081 findings regarding potentially significant effects identified in the EIR. (My May 16, 2022 post on that earlier case can be found here.)
Continue Reading The Other CEQA Shoe Drops: Third District Reverses Judgment Upholding Siskiyou County’s EIR For Crystal Geyser Bottling Plant Project, Holds (1) Project Objectives Were Too Narrowly Stated And (2) County Should Have Recirculated EIR’s Climate Discussion To Allow Comment On Substantially Higher GHG Emissions Estimate First Disclosed In FEIR
In an opinion filed on December 16, 2021, and belatedly ordered published on January 13, 2022, the Fourth District Court of Appeal rejected a CEQA challenge to a small multifamily project in the City of Santa Cruz. Ocean Street Extension Neighborhood Assn. v. City of Santa Cruz (2021) 73 Cal.App.5th 985 (“OSENA”). The case contains valuable guidance regarding mitigation for biological resources impacts, lays out some common sense principles that may help condense the EIR preparation process, and also provides useful guidance to developers and agencies dealing with water supply issues during the current drought.
Continue Reading Fourth District Rejects CEQA And Municipal Code Challenges To City Of Santa Cruz’s Project Approvals And EIR For Small Multifamily Housing Project
In an opinion filed January 28, and later certified for publication on February 16, 2022, the Third District Court of Appeal affirmed a judgment denying a petition for writ of mandate that challenged on CEQA grounds the El Dorado Irrigation District’s (“EID”) decision to undertake its Upper Main Ditch piping project. Save the El Dorado Canal v. El Dorado Irrigation District, et al. (2022) 75 Cal.App.5th 239. The challenged water conveyance project would replace about three miles of EID’s open and unlined earthen ditch system with a buried water transmission pipeline in order to conserve water and improve water quality. Petitioner alleged the EIR’s project description was inadequate because it omitted the material fact that the ditch section to be abandoned as a water conveyance also served as the watershed’s only drainage system, and that the EIR insufficiently analyzed the abandonment’s impacts on hydrology, biological resources, and wildfires.
Continue Reading Third District Rejects CEQA Challenges To El Dorado Irrigation District Ditch Piping Project, Holds EIR’s Project Description And Analysis Of Potential Hydrology, Biological Resources, and Wildfire Impacts Were Adequate