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A 138-page report, including 371 footnotes and a 30-page appendix listing all properly documented CEQA lawsuits filed in California over its 3-year study period (2010-2012), has been posted by its authors, Holland & Knight attorneys Jennifer Hernandez, David Friedman and Stephanie DeHerrera (the “authors”) on their firm’s website. The study is entitled “In the Name of the Environment” and subtitled “How Litigation Abuse Under the California Environmental Quality Act Undermines California’s Environmental, Social Equity and Economic Priorities – and Proposed Reforms to Protect the Environment From CEQA Litigation Abuse.” Based on my review, the study will be a valuable and interesting read for environmental and land use lawyers, consultants, and others regularly involved with or interested in the CEQA process. That said, its findings and conclusions will not come as any surprise to those on the front lines of CEQA litigation.
Continue Reading CEQA Litigation Abuses Documented By New Empirical Study Of Recent Case Filings

On May 27, 2015, the California Supreme Court filed a 4-page order modifying portions of the majority and concurring opinions previously filed March 2, 2015, in Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086. The modifications, made to the majority opinion at pages 1098-1099, 1102, and to the concurring opinion at page 1130, soften the majority’s comparison between (1) the unsuccessful appellants’ position on operation of the unusual circumstances exception to categorical exemptions, and (2) the operation of CEQA’s co-called “common sense” exemption embodied in Guidelines § 15061(b)(3).
Continue Reading CEQA Categorical Exemption Case Opinion Ordered Slightly Modified By Supreme Court; Berkeley Hillside Preservation Judgment Is Unaffected

In an opinion filed March 18 and belatedly ordered published on April 13, 2015, the Fourth District Court of Appeal upheld a trial court’s discretion to award only $19,176 in attorneys’ fees under Code of Civil Procedure § 1021.5 to a successful CEQA plaintiff (SOURCE) who sought $221,198 based on a $110,599 “lodestar” with a multiplier of two. Save Our Uniquely Rural Community Environment v. County of San Bernardino (Al-Nur Islamic Center, Real Party in Interest) (4th Dist., Div. 2, 2015) 235 Cal.App.4th 1179.  SOURCE, an organization of individuals, had successfully challenged San Bernardino County’s mitigated negative declaration (MND) and conditional use permit (CUP) for real party in interest Al-Nur Islamic Center’s proposed 7,512-square foot Islamic community center and mosque to be located on a 1.54-acre parcel in a residential part of the unincorporated county. Rejecting 5 of its 6 CEQA arguments, the trial court granted SOURCE’s writ petition on the sole ground that county failed to properly analyze the project’s environmental impacts from wastewater disposal, and ordered county to adequately analyze such impacts under CEQA.
Continue Reading Winners Beware – Fourth District Upholds Trial Court’s Discretion To Drastically Reduce Successful CEQA Plaintiff’s Fees In Granting CCP §1021.5 “Private Attorney General” Award

On March 11, 2015, the California Supreme Court granted the San Diego Association of Governments’ (SANDAG) petition for review of the Fourth District Court of Appeal’s decision in Cleveland National Forest Foundation v. San Diego Association of Governments (Case No. S223603). As reflected on the Supreme Court’s docket, the Order granting review limited the issues to be briefed and argued to the following: “Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. 5-3-05 to comply with the California Environmental Quality Act …?” All seven justices voted to review this issue.
Continue Reading Supreme Court Will Review CEQA Decision Invalidating SANDAG’s 2050 RTP

In a 46-page majority opinion written by Justice Chin and joined by four other justices, punctuated by an 18-page concurring opinion (by Justice Liu, joined by Justice Werdegar) which reads like a dissent, the California Supreme Court reversed the First District Court of Appeal’s judgment in Berkeley Hillside Preservation v. City of Berkeley (Case Nos. S201116, A131254) and remanded for further proceedings.
Continue Reading California Supreme Court Construes CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions in Berkeley Hillside Preservation v. City of Berkeley Decision

In a lengthy published decision filed February 10, 2015, and addressing consolidated appeals in three related actions, the Third District Court of Appeal affirmed the trial court’s judgment rejecting petitioner and appellant Center for Biological Diversity’s (CBD) CEQA challenge to the California Department of Fish and Wildlife’s (CDFW) Program EIR (PEIR) reviewing on a statewide basis environmental impacts of its statutorily mandated fish hatchery and stocking enterprise – an operation that has been ongoing for more than 100 years. Center for Biological Diversity v. Department of Fish and Wildlife (3d Dist. 2015) 234 Cal.App.4th 214.  The case addresses a number of important CEQA issues, including the rules governing use of PEIRs, baseline setting, deferral of mitigation, and alternatives analysis. (The non-CEQA portions of the opinion, which are not summarized in detail herein, held three mitigation measures CDFW imposed on an urban fishing program and private stocking permits – and which detrimentally affected private fish farmers and vendors beyond CDFW’s internal management – were “underground regulations” improperly adopted without formal compliance with the Administrative Procedure Act.)
Continue Reading Third District Rejects CEQA Challenge To Program EIR For California Department of Fish and Wildlife’s Statewide Fish Hatchery/Stocking Enterprise

I recently analyzed proposed legislation (SB 122) seeking to create an alternative procedure for preparation of the CEQA administrative record concurrently with administrative proceedings on a project and prior to any litigation challenging it.  (See “Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price,” by Arthur F. Coon, posted January 22, 2015.)  Under proposed SB 122 the project applicant could initiate the alternative procedure by request to the public agency and, if the procedure were agreed to by the agency, an expedited and statutorily complete record would be prepared.  However, this would be solely at the applicant’s cost and without any ability to recover that cost even if successful in subsequent litigation.
Continue Reading How CEQA’s Administrative Record Preparation Process Could Be Reformed By Eliminating CEQA Petitioners’ Statutory Option To Prepare The Record

California Senate Bill No. 122 (SB 122), introduced by Senators Jackson, Hill and Roth on January 15, 2015, appears to be the newest stab at legislative CEQA “reform.”  But numerous of SB 122’s embryonic provisions raise questions as to whether this proposed curative measure might have some deleterious side effects.
Continue Reading Latest Proposed CEQA Legislation (SB 122) Seeks To Reform Administrative Record Process – At A Price

On January 6, 2015, the San Diego Association of Governments (SANDAG) filed a petition asking the California Supreme Court to review the decision in Cleveland National Forest Foundation, et al. v. San Diego Association at Governments, et al. (4th Dist. 2014) __ Cal.App.4th __, Case No. D063288, Supreme Court Case No. S223603.  (For a discussion of the Court of Appeal’s decision, see “Analysis Of GHGs Under CEQA Just Got More Complex:  Fourth District’s Split Decision Invalidates Program EIR For SANDAG’s 2050 Regional Transportation Plan/Sustainable Communities Strategy” by Arthur F. Coon, posted December 1, 2014.)
Continue Reading SANDAG Seeks Review of CEQA Decision Invalidating EIR for Its Regional Transportation Plan/Sustainable Communities Strategy