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At long last, the California Supreme Court has scheduled oral argument in the case of Berkeley Hillside Preservation, et al. v. City of Berkeley, Supreme Court Case No. S201116.  By its long-awaited order issued October 31, 2014, the Court has now set argument in the matter for 9:00 a.m., December 2, 2014, in Los Angeles.
Continue Reading Supreme Court Finally Schedules Oral Argument In CEQA Categorical Exemption Case

On October 1, 2014, the California Supreme Court  granted the Real Party in Interest developer’s petition for review in Sierra Club v. County of Fresno (5th Dist. 2014) 226 Cal.App.4th 704, now unciteable and pending review as Supreme Court Case No. S219783.  The significant portions of the Court of Appeal’s decision were previously summarized in detail several months ago in this blog.  (See “Fifth District Decides Significant CEQA Air Quality/Health Impact Analysis and Mitigation Issues in the Sierra Club v. County of Fresno” by Arthur F. Coon, posted June 16, 2014.)
Continue Reading Supreme Court Adds Another CEQA Case To Its Docket, Will Review Fifth District’s Sierra Club v. County of Fresno (“Friant Ranch”) Decision

A number of recent legislative and regulatory developments in or related to CEQA will impact public agencies, developers, and practitioners in the coming year. Some significant recent developments include:

SB 743 Implementation/New Ways to Measure Transportation Impacts under CEQA. 

As previously discussed in this blog (see OPR Mulls Change in CEQA Traffic Metrics, OPR to Review Specific CEQA Guidelines Topics Proposed for 2014 Update Solicits Public Input, CEQA, Sausages, And the Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions), the Governor’s Office of Planning and Research is currently analyzing potential alternatives to the “level of service” metric for analyzing transportation impacts under CEQA, as mandated by SB 743.  OPR has released a “preliminary discussion draft” of a new section 15064.3 of the CEQA Guidelines which sets forth the new metric, along with revisions to Appendix F identifying potential alternatives and mitigation measures.Continue Reading Fall 2014 CEQA Roundup: Legislative and Regulatory Developments

The North Coast Railroad Authority (NCRA), a public agency established by state law, contracted with Northwestern Pacific Railroad Company (NWPRC) to allow NWPRC to conduct freight services on tracks controlled by NCRA.  Petitioner groups Friends of The Eel River (FOER) and Californians for Alternatives to Toxics (CAT) filed mandate petitions under CEQA challenging NCRA’s EIR and approval of the operations.  In affirming the trial court’s judgment denying the petitions, the First District Court of Appeal – in addressing what it termed “an issue of first impression in California” — followed uniform Federal law in holding the Interstate Commerce Commission Termination Act (ICCTA; 49 U.S.C. § 10101 et. seq.) grants the Surface Transportation Board (STB) exclusive jurisdiction over rail operations and broadly exempts state and local laws that impose “permitting or preclearance requirements (including environmental requirements)” on railroad operations or activities.  Friends of the Eel River v. North Coast Railroad Authority (1st Dist., Div. 5, 2014) ___Cal.App.4th ___, 2014 WL 4809456 (opn. filed 9/29/14).  In so holding that the ICCTA preempted CEQA’s application to a project involving railroad operations and thus barred Petitioners’ actions, the Court rejected Petitioners’ arguments that NCRA and NWPRC were estopped to assert federal preemption as a defense by NCRA’s agreement to conduct CEQA review, their positions in prior proceedings, and/or NCRA’s (later-rescinded) certification of an EIR.
Continue Reading First District Holds CEQA’s Application To Public Agency’s Approval of Railroad Operations Is Preempted By Federal Law Despite Agency’s Agreement To Conduct CEQA Review And Preparation of EIR

In a partially-published opinion filed September 29, 2014, the Fourth District Court of Appeal affirmed an order and judgment permitting the County of San Diego to recover actual labor costs incurred for an attorney and paralegals to take over and complete preparation of an administrative record in a CEQA case where the petitioner had elected, but failed, to do so. The Otay Ranch, L.P. v. County of San Diego (2014) 230 Cal.App.4th 60, Case No. D064809.
Continue Reading Attorney Labor For Preparing CEQA Administrative Record Is Recoverable Cost Where Specialized Knowledge Required, Holds Fourth District in Partially Published Opinion

In a published decision filed September 24, 2014, the Third District Court of Appeal (per Justice Robie) held that CEQA’s definition of a “public agency” that is subject to its requirements (see Pub. Resources Code, § 21063) applies only to governmental bodies, not individuals.  Governor Brown was therefore not subject to CEQA compliance as a prerequisite to his concurrence in the Secretary of the Interior’s (“Secretary”) federal determination made under the Indian Gaming Regulatory Act (“Indian Gaming Act”; 25 U.S.C. § 2701 et seq.) that a new Indian gaming establishment in Madera County would not be detrimental to the surrounding community.  Picayune Rancheria of Chukchansi Indians v. Edmund G. Brown, Jr. (NP Fresno Land Acquisitions LLC, RPI) (3d Dist. 2014) 229 Cal.App.4th 1416, No. C074506.
Continue Reading Governor Brown Is Not CEQA “Public Agency,” Holds Third District In Indian Casino Case

In a lengthy published decision filed September 9, 2014, the Third District Court of Appeal affirmed in part and reversed in part the trial court’s judgment denying a writ petition challenging Colusa County’s adoption of a Mitigated Negative Declaration (MND).  The project approved was a subdivision of four adjacent parcels, comprising 159 acres of industrially-zoned land near I-5, into 16 parcels ranging from just over one to 31 acres each.  Rominger v. County of Colusa (Adams Group Inc., Real Party in Interest) (3d Dist. 2014) 229 Cal.App.4th 690, Case No. C073815.  Key holdings and “takeaways” from the 48-page opinion, which was authored by noted CEQA jurist Justice Ronald Robie, included:
Continue Reading Tentative Map Approval Is CEQA “Project”, Holds Third District In Published Opinion Also Addressing Prejudicial Error, Agency Discretion To Adopt Thresholds Of Significance, Deferred Mitigation, And Other Significant CEQA Issues

On August 15, 2014, the Contra Costa Times reported on a wide-ranging interview of California Governor Jerry Brown conducted by the Mercury News opinion and editorial board on that same date.  While largely devoted to other topics (such as the CPUC scandal, Brown’s twin-tunnel Delta plan, and the state budget), the article interpreted Brown’s responses to questions asked about CEQA as “suggest[ing] that comprehensive reform of the California Environmental Quality Act, long one of his top priorities, is all but dead.”
Continue Reading Governor’s Passion For Legislative CEQA Reform Has Waned, Contra Costa Times Reports After Mercury News Interview

In a concise 15-page opinion filed August 7, 2014, the California Supreme Court reversed the Fifth District Court of Appeal’s judgment which had held that a city may not adopt a voter-sponsored initiative with potential environmental impacts unless it conducts a CEQA analysis.  Tuolumne Jobs & Small Business Alliance v. The Superior Court of Tuolumne County (Wal-Mart Stores, Inc., et al., Real Parties In Interest (2014) 59 Cal.4th 1029, Case No. S207173.  (For relevant case background, my initial post analyzing, criticizing, and predicting that the Supreme Court would grant review of the Fifth District’s decision can be accessed at the following link: “Impossible and Useless CEQA Review Is Required If City Opts Under Elections Code to Adopt Legislative Project Approvals Proposed by Qualified Citizen Initiative Petition – Fifth District’s Holding In Walmart Rejects Fourth District Precedent And Creates Split In Authority,” by Arthur F. Coon, posted November 8, 2012.)
Continue Reading California Supreme Court Holds CEQA Inapplicable To City’s Adoption Of Qualified Voter Initiative Approving Wal-Mart “Supercenter” Project

In a decision ordered published on June 17, 2014, nearly a month after it was originally filed, the Fourth District Court of Appeal addressed a key element of the related doctrines of res judicata and collateral estoppel – the concept of “privity.”  (Roberson v. City of Rialto (Wal-Mart Real Estate Business Trust, et al., Real Parties In Interest) (4th Dist. 2014) 226 Cal.App.4th 1499.)  The Court did so in a manner that could prove very useful to public agencies and project proponents defending actions brought by ostensibly distinct CEQA/land use plaintiffs who are actually seeking to serially re-litigate claims or issues brought in the “public interest” that have previously been finally adjudicated.
Continue Reading Estopping the “Revolving Door” CEQA/Land Use Plaintiff: Roberson v. City of Rialto Holds Different Plaintiffs Litigating To Vindicate Same Public Interests Are Still In Privity6