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In an opinion recently ordered published, the First District Court of Appeal extensively reviewed the relevant case law and expressed skepticism that CEQA would operate in reverse to require analysis of potential impacts on a mixed-use project’s construction workers and future residents from pre-existing soil contamination at the project site.  Yet, while illuminating its tentative views on this important CEQA issue, the Court stopped short of expressly relying on them, and instead upheld the project’s challenged Mitigated Negative Declaration (MND) based on plaintiffs’ failure to identify substantial evidence in the administrative record supporting a fair argument that disturbance of the site’s contaminated soils may have a significant effect on the environment.  Parker Shattuck Neighbors, et al, v. Berkeley City Council, et al (CityCentric Investments, LLC, et al, Real Parties in Interest), 222 Cal.App.4th 768, Case No. A136873 (1st Dist., Div. 4 2013), filed 11/7/13; pub. order 12/4/13 (rec’d from court 12/30/13).
Continue Reading First District “Doubts” CEQA Operates In Reverse, Upholds Mitigated Negative Declaration For Urban Infill Project Despite Soil and Groundwater Contamination In Parker Shattuck Neighbors

Few would dispute that the California Supreme Court has played a leading role in judicial CEQA reform in recent years.  It has clarified the law on the operation of CEQA’s statues of limitations, and attempted to bring more coherence and common sense to the fundamental rules and concepts governing the statute’s scope, operation and timing.

Having issued another major decision in 2013 clarifying the law on environmental baseline analysis (see Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439 [CEQA requires project impact assessment against “existing conditions” baseline, disallows sole reliance on “future conditions” baseline unless substantial evidence shows existing conditions baseline would be misleading or without informational value]), the Supreme Court is poised to tackle several more important CEQA issues in decisions that may be forthcoming the next year.Continue Reading Judicial CEQA Reform On Supreme Court’s Docket In Coming Year?

On November 26, 2013, the California Supreme Court by unanimous vote granted review of a fundamental legal issue that repeatedly has surfaced in recent years in both published appellate opinions and the legislative debate over CEQA reform:  Does CEQA ever operate “in reverse”?  That is, is CEQA review confined to an analysis of a proposed project’s impacts on the existing environment, or does it also require analysis of the existing environment’s impacts on the proposed project and its future occupants and users?

The case is CBIA v. BAAQMD (Supreme Court Case No. S213478), a decision in which the First District Court of Appeal rejected the CBIA’s facial challenge to BAAQMD’s 2010 Thresholds of Significance and Guidelines for Toxic Air Contaminants, and at the same time called into question the “continued vitality” of a line of appellate cases holding that the “reverse application” of CEQA is inconsistent with its language and intent. For my analysis of the Court of Appeal’s opinion, which has been vacated by the Supreme Court’s grant of review, see “Adoption of CEQA Thresholds of Significance Is Not A CEQA “Project,” First District Holds In Reinstating BAAQMD’s 2010 Air Quality Guidelines,” by Arthur F. Coon, posted on August 16, 2013.Continue Reading Supreme Court Will Review “CEQA-In-Reverse” Issue In CBIA Case Challenging 2010 BAAQMD Air Quality Guidelines

My October 31 presentation with David Ivester for the Bay Planning Coalition on recent CEQA developments brought home the fact that while there has been only partial and incremental legislative reform (in the form of SB 743), the appellate Courts have remained very active, publishing roughly 30 decisions over the past year.  I concur with David that legislative reform in 2014 (an election year) is unlikely, so it appears we will have to continue to look to the judiciary as the principal agent for change – for better or for worse.  David’s opening anecdote about his conversation with an intelligent, non-lawyer friend underscoring the need for CEQA reform was compelling –  something just seems wrong if, after a legion of environmental professionals (including agency staff, planners, environmental consultants, and legal counsel) has thoroughly vetted a development project and its environmental review, it still stands only a 50% chance of prevailing if challenged in Court.
Continue Reading “The Year in CEQA: A Look Back”

On October 16, 2013, 60 days after the request was submitted, the California Supreme Court denied Infill Builders’ request to depublish Citizens for Ceres v. Superior Court (5th Dist. 2013) 217 Cal.App.4th 889, a decision concerning the scope of the “common interest” exception to privilege waiver by disclosure in CEQA cases.  Ceres, which has been heavily criticized by the CEQA/land use bar, holds that while CEQA’s administrative record statute (Pub. Resources Code, § 21167.6) does not impliedly abrogate privilege, any privilege (including attorney-client and work product protection) is waived as to documents shared between the lead agency’s and project developer’s counsel at any time prior to project approval.  This holding conflicts with the holding and reasoning of the Third District Court of Appeal in California Oak Foundation v. County of Tehama (3d Dist. 2009) 174 Cal.App.4th 1217, 1222-1223, which held that the common interests of the agency and the developer – for example, in producing a legally-sufficient EIR that will withstand legal challenge – could protect reasonably necessary disclosures of privileged information between them from being deemed a waiver.
Continue Reading Depublication of Controversial CEQA Common Interest Case Denied by Supreme Court, Leaving Troublesome Split of Authority

The important legislative policy of expediting CEQA litigation sometimes inevitably conflicts with the policy favoring resolution of cases on their merits.  This conflict is never more sharp than when a CEQA plaintiff’s counsel seeks relief from a default or mistake that would otherwise terminate a CEQA action in the defendant’s favor.  In the recently-published decision in Comunidad En Accion v. L.A. City Council (2nd Dist., Div. 8, 9/20/13) 219 Cal.App.4th 1116, the Second District Court of Appeal resolved such a conflict by reversing the dismissal of a CEQA action and holding the trial court abused its discretion by denying discretionary relief under Code of Civil Procedure § 473 for counsel’s failure to timely comply with CEQA’s mandatory hearing request requirement due to an “excusable” failure to calendar the deadline.  Due to reasoning that seems to conflict with that of other decisions involving CEQA’s mandatory hearing request and statute of limitations provisions, and the case’s unusual posture – i.e., reversing a trial court’s discretionary CCP § 473 decision under the “abuse of discretion” standard – the decision is noteworthy.
Continue Reading Plaintiff’s Failure to Request CEQA Hearing Within 90 Days of Filing Petition Due to Lead Attorney’s “Excusable” Calendaring Error Warrants Discretionary Relief Under CCP § 473, Holds Second District

As we move past summer, into fall, the “back-to-school,” and football seasons, and toward daylight savings time – and a possible shutdown of the federal government – it is time to reflect and take stock of the really important things . . . like recent CEQA developments of interest:

  • SB 743 signed by Governor Brown.

On September 27, 2013, and as expected, Governor Brown signed into law SB 743, the year’s only significant, albeit incremental, “CEQA reform” measure.  For a summary of SB 743’s substantive content – as well as what the new law doesn’t do – see “CEQA, Sausages, And The Art of The Possible:  A Closer Look at SB 743’s General CEQA Reform Provisions” by Arthur F. Coon and Matthew C. Henderson, posted on September 16, 2013.Continue Reading Recent CEQA Developments In The Legislature And Courts

In a flurry of eleventh-hour activity following Senate President Pro Tem Darrell Steinberg’s withdrawal of SB 731 from consideration (see 9/13/13 post “Steinberg Drops Statewide CEQA Reform Bill (SB 731) After Meeting with Governor Brown,” by Arthur F. Coon), both houses of the California Legislature passed an amended Senate Bill 743 on September 12, 2013.  SB 743 enacts a number of changes to the California Environmental Quality Act (“CEQA”; Pub. Resources Code, § 21000, et seq.) that are designed to “modernize” the statute and streamline some of its procedures for certain projects.  Demonstrating that politics is “the art of the possible,” Senator Steinberg was successful, in the waning hours of the legislative session, in importing several generally-applicable CEQA reform provisions from former SB 731 into SB 743, whose primary focus theretofore had been easing the CEQA review path for a new Sacramento Kings arena.  After this bit of legislative “sausage making” (which is expected to be followed by Governor Brown’s signature), the revised SB 743 includes the following generally-applicable CEQA provisions:
Continue Reading CEQA, Sausages, And The Art of The Possible: A Closer Look at SB 743’s General CEQA Reform Provisions

Proposed legislative CEQA reform for 2013 has gone out, not with a bang, but with a … dribble?  After meeting with Governor Brown, on September 11, 2013, Senator Darrell Steinberg abruptly withdrew his much-ballyhooed CEQA “reform” bill, SB 731, from consideration, canceling a hearing set before the Committee on Local Government, and threw his support behind a much different CEQA bill, SB 743, which paves the way for a new downtown Sacramento Kings arena.
Continue Reading Steinberg Drops Statewide CEQA Reform Bill (SB 731) After Meeting With Governor Brown

While Real Party in Interest Wal-Mart Stores did not elect to seek California Supreme Court’s review of the Fifth District’s controversial decision in Citizens for Ceres v. Superior Court (2013) 217 Cal.App.4th 889, the California Infill Builders Federation (Infill Builders) submitted an August 16, 2013 letter to the high court requesting that the opinion be depublished pursuant to Rule 8.1125 of the California Rules of Court.  Infill Builders’ 6-page letter, authored by noted CEQA attorney Tina Thomas, “requests that the Court depublish the Opinion because it creates a new bright line rule rendering the common-interest doctrine inapplicable to pre-project approval communications between a project proponent and a decisionmaking agency.”  It asserts this “uniform, inflexible rule is inconsistent with CEQA and the statutes establishing the common-interest doctrine” in numerous respects.
Continue Reading Depublication Of Fifth District CEQA Decision Creating Conflict On Common Interest Doctrine Sought By Infill Builders