On May 20, 2021, Governor Newsom signed into law Senate Bill No. 7, the “Jobs and Economic Improvement Through Environmental Leadership Act of 20216” (the “Act”), which repealed and added Chapter 6.5 to Division 13 of the Public Resources Code (sections 21178 through 21189.3).  The new Act, which was immediately effective as an “urgency” statute, essentially modifies and reenacts former 2011 legislation that was repealed by its own terms on January 1, 2021.  Like the former leadership act, the new legislation authorizes the Governor, until January 1, 2024, to certify certain “environmental leadership development projects” (“leadership projects”) that meet specified requirements for streamlining benefits related to CEQA.  (Pub. Resources Code, §§ 21180, 21181.)  To qualify for CEQA streamlining benefits under the new Act, the Governor must certify a project as a leadership project before January 1, 2024.  (§ 21181.)

Continue Reading CEQA Urgency Legislation Reenacts Modified Version of Environmental Leadership Act, Adds Certain Housing Development Projects As Eligible For Governor Certification And Streamlining Benefits

In an opinion filed April 23, and later certified for publication on May 13, 2021, the Fourth District Court of Appeal affirmed in part an order denying an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, and held that a malicious prosecution action could proceed against losing CEQA plaintiffs who had unsuccessfully challenged a Mitigated Negative Declaration (MND), but not against their attorneys.  Jan Dunning, et al. v. Kevin K. Johnson, APLC, et al. (4th Dist. 2021) ___ Cal. App. 5th ___. While the merits of the malicious prosecution action have yet to be determined, the Court of Appeal’s ruling that the action could even proceed is itself significant given the daunting hurdle posed by the anti-SLAPP statute, and should give pause to project opponents who think that meritless CEQA litigation lacking probable cause and brought with malice can be pursued without potential consequence.

Continue Reading Is More Litigation the Remedy for Meritless CEQA Litigation? Fourth District Concludes Malicious Prosecution Action Against Losing CEQA Plaintiffs Survives Anti-SLAPP Motion

As we rapidly approach the end of a year of COVID-related challenges and uncertainties, CEQA practitioners may want to review the year’s key legislation impacting CEQA and its application, which was contained in the handful of bills summarized below.

  • AB 168 (Aguilar-Curry). This urgency legislation became effective with the Governor’s signature on September 25, 2020.  It amends Government Code §§ 65400, 65913.4 and 65941.1 to correct an “oversight” in SB 35 (Weiner), namely, that 2017 law’s failure to consider potential destruction of tribal cultural resources as a result of the streamlined, ministerial (and thus CEQA-exempt) approval process it authorized for multifamily housing development projects satisfying specified objective planning standards.  (SB 35 is summarized in detail in my 12/7/17 blog post, which can be found here.)


Continue Reading 2020 CEQA Legislative Developments

“The life of the law has not been logic: it has been experience.” – Oliver Wendell Holmes, Jr., The Common Law (1881)

“CEQA discourse has become increasingly abstract, almost medieval in its scholasticism.” – former California Governor Edmund G. (“Jerry”) Brown, Jr.

by Arthur F. Coon

On November 24, 2020, the Fifth District Court of Appeal filed its partially published opinion in the latest installment of the long-running CEQA litigation over Fresno County’s approval of the Friant Ranch project.  Sierra Club v. County of Fresno (Friant Ranch, L.P., Real Party in Interest) (2020) 57 Cal.App.5th 979.  The litigation involves a 942-acre mixed-use development project (2500 residential units, 250,000 square feet of commercial space, 460 acres of open space) for which the Notice of Preparation (NOP) of the EIR was issued in 2007; it has generated an earlier appellate opinion (see my 6/16/14 post here) and a Supreme Court opinion (see my 12/28/18 post here) addressing important standard of review issues centered on the adequacy of the project EIR’s air quality impacts discussion.


Continue Reading Remedial Legal Logic: Fifth District Doubles Down On Split with Other Districts in Holding CEQA Doesn’t Allow Limited Writ Remedy of Partial EIR Decertification – But Does It Really Matter?

Senator Scott Weiner’s Senate Bill (SB) 288 has passed both houses of the California Legislature, and was enrolled for proofing on September 4, 2020, prior to its delivery to the Governor for signature.  The new law’s prefatory declarations reflect a stated intent to expand and enact CEQA exemptions to reduce the time and cost of delivering transit and sustainable transportation projects in California, and thereby boost the COVID-damaged economy while furthering the State’s environmental goals.

Continue Reading Legislature Enacts SB 288 to Provide New and Expanded CEQA Exemptions for Sustainable Public Transportation Projects

A little over a year ago, I posted about the filing of a federal RICO (the federal “Racketeer Influenced and Corrupt Organizations Act”; 18 U.S.C. § 1962 et seq.) lawsuit by developer Relevant Group, LLC and related entities (“Relevant”) alleging that defendants (Stephan “Saeed” Nourmand and Michael Nourmand and their business entities) filed and threatened frivolous CEQA suits solely to “shake down” and extort monetary settlements – without regard to environmental concerns – from economically vulnerable hotel project developers.  (See CEQA Meets RICO:  True Stories Of Extortion and Litigation Abuse in Tinseltown,” posted July 12, 2019.)  Since then, the litigation has progressed significantly.  After surviving a robust motion to dismiss, the case has become “at issue” with defendants’ filing of an answer to plaintiffs’ Second Amended Complaint (“SAC”) on June 24, 2020, and the District Court filing a Scheduling and Case Management Order on July 24, 2020.

Continue Reading CEQA Meets RICO: Round Two

In an opinion filed November 26, and ordered published on December 23, 2019, the Third District Court of Appeal partially reversed a judgment rejecting a labor union’s CEQA challenges to the EIS/EIR for a geothermal power plant project on federal land in Mono County.  Russel Covington, et al v. Great Basin Unified Air Pollution Control District, et al. (Orin 50 LLC, et al, Real Parties in Interest) (2019) 43 Cal.App.5th 867.

Continue Reading “ROG Won: A CEQA Wars Story” – Third District Holds Geothermal Energy Project EIR’s Rejection Of Proposed Mitigation Measures For Significant ROG Fugitive Emissions Impact Violated CEQA Where No Substantial Evidence Showed Measures’ Infeasibility

Despite well-reasoned requests for depublication made by the City of Los Angeles, the California Building Industry Association (CBIA), the California State Association of Counties (CSAC) and the League of California Cities (League), the Second District’s questionable and controversial decision in Stopthemillenniumhollywood.com, et al. v. City of Los Angeles, et al. (2019) 39 Cal.App.5th 1 remains “on the books” as published precedent.  The California Supreme Court on November 26, 2019 entered its order denying the depublication requests and declining to review the matter on its own motion.  Justice Corrigan and Justice Kruger voted to depublish the opinion, about which I previously blogged here.

Continue Reading Leaving Bad Law “On The Books”: Supreme Court Denies Depublication of CEQA EIR Project Description Case That Promotes Piecemeal Litigation

Background

A long time ago, in a legal galaxy far, far away, Emperor Reagan signed the California Environmental Quality Act (“CEQA”) into law.  For many years, the “dark forces” that had wrought the adverse environmental impacts giving rise to CEQA – land developers and the public agencies granting their approvals – labored under its ever-expanding yoke.  Many litigation battles were fought, and many won by the heroic Jedi of the environmental plaintiffs’ bar and their NGO clients, firmly establishing the preeminence and vast reach of CEQA’s seemingly beneficent empire into the far-flung corners of the legal universe.  CEQA’s “force” was such that no project with the potential to effect a physical change in the environment, unless granted legislative or magisterial exemption, escaped its watchful eye and mitigating powers.


Continue Reading CEQA Wars: The Developer Strikes Back (In Federal Court)