On October 15, 2017, Governor  Brown vetoed SB 80 (Wieckowski), a bill that would have added to CEQA’s already detailed notice requirements.

Specifically, SB 80 would have amended Public Resources Code §§ 21092.2, 21092.3, 21108 and 21152 so as to require, inter alia, that state and local lead agencies:  (1) offer to provide scoping notices, notices of preparation, and notices of determination by email to persons so requesting; (2) post all such notices on the agency’s website (if any); and (3) file with OPR or the County Clerk, as applicable, all Notices of Exemption (NOEs) for approved projects found exempt pursuant to the categorical exemptions contained in the CEQA Guidelines (as opposed to other possible bases for exemption).

Continue Reading Leaving Well Enough Alone: Governor Brown Vetoes CEQA Bill That Would Mandate Lead Agencies To File NOEs For Projects Approved As Categorically Exempt

On October 15, 2017, Governor Edmund G. Brown, Jr. sent a veto letter to California State Assembly Members, returning a controversial and flawed proposed land use bill – AB 890 – without his signature.  My partner Bryan Wenter and I authored a post here last month detailing the many problems we saw with the bill.  (SeeThe Opposite of CEQA Reform: Legally Flawed AB 890 Would Expand Opportunities For CEQA Litigation Abuse While Abridging Constitutional Local Initiative Rights,” by Arthur F. Coon and Bryan W. Wenter, AICP, posted September 19, 2017.)

Fortunately, Governor Brown was receptive to the bill’s many critics, and struck a blow for local land use control, local initiative rights, CEQA reform and commence sense by vetoing it.  His short letter to Assembly members, which can be found here, states in pertinent part that “[i]nstead of the piecemeal approach taken in this bill, I prefer a more comprehensive CEQA review, which takes into account both the urgent need for more housing and thoughtful environmental analysis.  Hear, hear!

Continue Reading Governor Brown Vetoes Flawed AB 890, Signals Preference for More Comprehensive CEQA Reform

AB 890 (Medina – D), recently sent to Governor Brown for action by October 15, seeks to amend Government Code § 65867.5 and to add §§ 65363 and 65850.10 to prevent development agreements and certain types of land use planning and zoning legislation from being enacted by local voter-sponsored land use initiatives.  The bill would substantially abridge the local electorate’s constitutionally guaranteed and reserved initiative power by purporting to exclusively “delegate” specified exercises of legislative authority to local governing bodies – city councils and county boards of supervisors – and thus concomitantly eliminating local voters’ long-held and until now unassailable rights to directly legislate in such areas pursuant to California Constitution, Article II, Section 11, and the procedures of the Elections Code.

The bill’s stated purpose is to ensure the enumerated types of local development proposals are subjected to CEQA review – and, implicitly, to provide expanded opportunities for litigation under a flawed CEQA statute the legislature continues to refuse to meaningfully reform – by annulling the constitutional right of local voters to directly legislate in these areas, a presently enjoyed and “jealously guarded” right the exercise of which is not currently subject to CEQA review.  Long story short:  AB 890 is a bad bill that proposes a cure far worse than the perceived disease.  As will be apparent from the discussion of its provisions below, the proposed law is deeply flawed, of doubtful constitutionality, and the opposite of CEQA reform.

Continue Reading The Opposite of CEQA Reform: Legally Flawed AB 890 Would Expand Opportunities for CEQA Litigation Abuse While Abridging Constitutional Local Initiative Rights

“You may say I’m a dreamer.”  – John Lennon, “Imagine

“Son she said / Have I got a little story for you…”

Pearl Jam, “Alive

CEQA, our state’s landmark environmental protection act, is a venerable law with an illustrious history now spanning over 45 years.  But it’s also being abused every day, distorted for non-environmental ends not worthy of it – and our legislature refuses to sit up and take note.  It’s as if Lady Justice had grown warts, been disrobed and had her scales smashed by vandals – yet those who could help, sit idly by and don’t seem to care.

CEQA reform has been a hot topic, on and off, over the years.  Governor Brown has called it “the Lord’s work.”  Calls for it wax and wane with the economy and perceived need to get development projects approved and built.  While many CEQA practitioners, politicians, and members of the regulated community have acknowledged the need for reform, many others have denied it; some insist CEQA works “just fine” as it is, or even advocate further expansion of its reach.  Proposals for meaningful legislative reform have been largely unsuccessful and have been criticized by opponents as proposals to “weaken” the state’s “signature” environmental law.  It’s often said that the first step to recovery is acknowledging a problem exists.  It’s difficult to build consensus for CEQA reform when there is not even consensus about the existence of CEQA abuses requiring reform.

Continue Reading Standing Against Environmental Injustice: Some Thoughts On Facing The Need For CEQA Litigation Reform

On July 13, 2017, the California Supreme Court rendered a 6-1 decision holding that the San Diego Association of Governments’ (SANDAG) 2011 EIR for its Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) issued pursuant to SB 375 did not violate CEQA “by declining to explicitly engage in an analysis of the consistency of projected 2050 greenhouse gas emissions with the goals in [a 2005] executive order [the “2005 EO”].” (Cleveland National Forest Foundation, et al v. San Diego Association of Governments (2017) 3 Cal. 5th 497, Supreme Court Case No. 5223603.) This conclusion is not surprising, and it is undoubtedly correct. But it is disappointing that the majority’s opinion lacks significant practical or legal guidance for conducting CEQA-compliant GHG analysis for long term regional plans.

Maybe I expect too much. Maybe the nature of the opinion is just a result of the narrowly-framed issue on which the Court chose to grant review. Maybe the interrelationship between CEQA and SB 375 is so complex that hope for greater clarity and simplicity in this area is unrealistic. Perhaps, by its very nature, CEQA is inherently ill-suited to “analyzing” the global-scale environmental impacts of GHG emissions on a project-by-project basis. Or perhaps the case’s narrow holding flows from the strong flavor of mootness that permeates it. In this last vein, it seems somewhat odd for our Supreme Court to decide the legal validity of one discrete aspect of SANDAG’s 2011 EIR despite the facts that (1) the 2011 RTP/SCS which that EIR analyzed has now long been superseded by an updated 2015 RTP/SCS (“San Diego Forward: The Regional Plan”); (2) SANDAG did conduct a 2005 EO consistency analysis in connection with the updated plan; and (3) no one has challenged the updated plan or its EIR.

Continue Reading Supreme Disappointment: High Court’s Narrow Opinion In SANDAG RTP/SCS EIR Case Offers Little Guidance On CEQA GHG Analysis

When all was said and done, it was a case of “same wine, different bottle” for Defendant and Appellant San Mateo Community College District (“District”) after the First District Court of Appeal’s published May 5, 2017 decision, following remand from the California Supreme Court, in Friends of the College of San Mateo Gardens v. San Mateo Community College District, et al. (1st Dist., Div. 1, 2017) 11 Cal.App.5th 596.  While the District’s project changes to demolish its San Mateo College Building 20 complex, which was formerly slated for renovation, were held not to result in an “entirely new” project for CEQA review purposes because the original MND retained informational relevance, the District’s Addendum to that MND was again held by the Court of Appeal to constitute an inadequate environmental review document for the modified project under CEQA “because there is substantial evidence to support a fair argument that the project changes might have a significant effect on the environment.”

As this is my seventh blog post on this important litigation, I won’t reiterate the case’s facts.  My post on the Supreme Court’s opinion ((2016) 1 Cal.5th 937) can be found here.  The facts and other relevant information concerning the case can be found in my posts dated July 8, May 12, May 4 and April 26, 2016, and March 25, 2014.

Continue Reading No Surprises Here: First District Applies CEQA Subsequent Review Standards Mandated by Supreme Court on Remand, Again Affirms Judgment for Petitioner in Friends of the College of San Mateo Gardens Litigation

On January 17, 2017, the California Supreme Court denied the losing appellants’ petition for writ of supersedeas, stay request, and petition for review of the First District Court of Appeal’s decision in Mission Bay Alliance v. Office of Community Investment and Infrastructure, et al. (GSW Arena LLC, et al., Real Parties in Interest) (2016) 6 Cal.App.5th 160; Supreme Court Case No. S239371.  This action effectively ends the CEQA challenge to the Golden State Warriors San Francisco Arena project brought by a coalition of its opponents and removes the major legal hurdle to its construction.  Consistent with the required “fast track” CEQA review of and litigation over this Governor-certified “environmental leadership development project,” the high court’s action came relatively quickly – just a month and a half after the filing of the Court of Appeal’s decision.  My detailed post on the Court of Appeal’s published decision in the case, which now stands undisturbed as legal precedent, can be found here.

Continue Reading California Supreme Court Denies Review in Expedited CEQA Litigation over Golden State Warriors Arena Project Approval

In a lengthy published opinion filed November 29, 2016, the First District Court of Appeal rejected all legal challenges to the City of San Francisco’s Final Supplemental Environmental Impact Report (FSEIR) and related land use approvals for a 488,000-square-foot multipurpose event center project on 11 acres in the City’s Mission Bay South redevelopment plan area (the “Project”).  Mission Bay Alliance, et al. v. Office of Community Investment and Infrastructure, et al. (GSW Arena LLC, et al., Real Parties in Interest) (2016 1st Dist., Div. 3) 6 Cal.App.5th 160, 2016 WL 6962504.  The event center would host home games of the Golden State Warriors NBA basketball team, concerts, conferences, conventions and other sporting and cultural events, and the overall Project would also include “a variety of mixed-use structures, including two 11-story office and retail buildings, parking facilities, and 3.2 acres of open space.”

Continue Reading Slam Dunked! First District Rejects All CEQA And Land Use Challenges To Golden State Warriors Event Center Project And EIR In Expedited Litigation

On November 22, 2016, the California Supreme Court issued a significant Order granting review in Coastal Hills Rural Preservation v. County of Sonoma (2016) 2 Cal.App.5th 1234, and also transferring the matter back to the Court of Appeal (First Appellate District, Div. 1) for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, 957-959, fn. 6, and CEQA Guidelines § 15384.  The high court further ordered the First District’s opinion to be depublished, and it is therefore no longer citable as binding legal precedent.  Both orders were unanimous.

Continue Reading Wither Subsequent Review? Supreme Court Again Weighs In On CEQA Subsequent Review Standards Following Negative Declarations – Grants, Retransfers, and Depublishes First District’s Coastal Hills Rural Preservation Decision

The Federal Indian Gaming Regulatory Act (“IGRA”; 25 U.S.C. § 2701 et seq.) allows gaming on Indian lands acquired by the Secretary of the Interior (Secretary) in trust for a tribe’s benefit after October 17, 1988, if, among other things, the Secretary determines it would be in the tribe’s best interest and not detrimental to the surrounding community, and the governor of the state where the land is located concurs with the determination.  (25 U.S.C., § 2719(b)(1)(A).)  Further, casino-style gaming may be conducted if authorized by a tribal-state compact, and California Constitutional and statutory law designates the Governor as the state officer authorized to negotiate and execute such compacts.  (Cal. Const., art. IV, § 19(f); Gov. Code, § 12012.5(d).)

Continue Reading Governor (Still) Not A Public Agency Subject To CEQA, Holds Third District In Indian Gaming Case