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In a published opinion filed August 13, 2013, the First District Court of Appeal, Division Five, reversed a trial court judgment that had invalidated the Bay Area Quality Management District’s (BAAQMD) adoption of 2010 “CEQA Air Quality Guidelines” because BAAQMD did not conduct CEQA review of their potential environmental impacts.  (California Building Industry Association v. Bay Area Air Quality Management District (1st Dist., Div. 5, 2013) ___ Cal.App.4th ___, 2013 WL 4083221.)  In reinstating the 2010 Guidelines, which set forth new thresholds of significance for GHGs, toxic air contaminants (TACs), and PM2.5 (particulate matter 2.5 microns or less in diameter), the Court of Appeal held that a public agency’s promulgation of thresholds of significance pursuant to the procedures of the CEQA Guidelines is not itself a “project” subject to CEQA review.  In so holding, and in rejecting the other arguments offered by plaintiff California Building Industry Association (CBIA) in support of the judgment, the Court touched on several significant CEQA issues, and in the process overturned a substantial CCP §1021.5 attorneys’ fee award to CBIA since it was no longer a successful party.
Continue Reading Adoption of CEQA Thresholds of Significance Is Not A CEQA “Project,” First District Holds In Reinstating BAAQMD’s 2010 Air Quality Guidelines

In a much-anticipated decision filed August 5, 2013, the California Supreme Court held that CEQA requires a lead agency to assess a project’s environmental impacts against an “existing conditions” baseline – and consequently disallows sole reliance on a “future conditions” baseline  –  unless the agency shows “by substantial evidence that an analysis based on existing conditions would tend to be misleading or without informational value to EIR users.”  Neighbors for Smart Rail v. Exposition Metro Line Construction Authority, et al (8/5/13) 57 Cal.4th 439.  In resolving a split of authority among the District Courts of Appeal on the issue, the high court itself was divided:  While six justices agreed on the result of affirming the Court of Appeal’s judgment upholding denial of a writ, and four agreed on the rule stated above, three justices believed lead agencies should be given greater discretion to select the CEQA baseline, and one justice believed the EIR’s failure to include the “existing conditions” baseline analysis required by CEQA under the majority’s rule was prejudicial error requiring that the EIR and project approval be set aside.  The bottom line is that defendant Exposition Metro Line Construction Authority (Expo Authority) may proceed to construct its light-rail transit line from Culver City to Santa Monica (the “Expo Phase 2” project), and CEQA practitioners now have some new environmental baseline rules to assimilate and employ when counseling their clients.
Continue Reading High Court Tackles CEQA Future Baselines In Neighbors For Smart Rail Decision

After years of study, Marin County adopted an Ordinance in 2011 banning single-use plastic bags and mandating a 5-cent fee on single-use paper bags; the ordinance applies to roughly 40 retailers in the unincorporated county.  The county found the ordinance categorically exempt from CEQA as “a regulatory action designed to assure the maintenance, restoration, enhancement, or protection of natural resources and the environment.”  (See 14 Cal. Code Regs., §§ 15307, 15308.)  Plaintiff Save the Plastic Bag Coalition (the “Coalition”) sued claiming CEQA required an EIR for such an ordinance, but the trial court denied its writ petition.  On July 25, 2013, the Court of Appeal for the First Appellate District ordered published portions of its June 25, 2013 decision affirming the trial court’s judgment.  (Save the Plastic Bag Coalition v. County of Marin, et al (1st Dist., Div. 3, 6/25/13, part. pub. order 7/25/13) 218 Cal.App.4th 209.)
Continue Reading First District Holds CEQA Categorical Exemptions For Regulatory Agency Actions To Protect The Environment Apply To Marin County’s Plastic Bag Ban Ordinance, Recognizes Case Law Split On Standard Of Review For Exceptions

In a mostly-published 95-page opinion filed July 15, 2013, the Fifth District Court of Appeal reversed a trial court’s judgment and directed issuance of a writ of mandate setting aside Resolution 09-31 and two executive orders of the California Air Resource Board (CARB) approving Low Carbon Fuel Standards (LCFS) regulations promulgated to reduce greenhouse gas (GHG) emissions.  (Poet, LLC, et al. v. California Air Resources Board, et al (5th Dist. 7/15/13) 217 Cal.App.4th 1214, as modified on denial of rehearing at 218 Cal.App.4th 681, No. F064045.)  However, despite its finding that CARB’s actions “ran afoul of several procedural requirements imposed by CEQA and the APA” and that “these procedural violations are not trivial,” the Court tailored its remedy to protect the public interest by “allow[ing] the LCFS regulations to remain operative while [C]ARB complies with the procedural requirements it failed to satisfy.”  It stated:  “In other words, we will avoid the irony of violations of an environmental protection statute being used to set aside a regulation that restricts the release of pollutants into the environment.”
Continue Reading CARB Violated CEQA In Adopting GHG Regulations, But Fifth District Holds Regulations May Remain Operative Pending Compliance

In a partially-published appellate writ decision filed July 8, 2013, the Fifth District Court of Appeal held that while CEQA’s administrative record statute (Pub. Resources Code, § 21167.6) does not impliedly abrogate the lead agency’s attorney-client privilege (or any other privileges), any privilege is waived as to any documents shared with the project developer’s counsel prior to project approval.  (Citizens For Ceres v. The Superior Court of Stanislaus County, City of Ceres, et al. (Real Parties) (5th Dist. 2003) 217 Cal.App.4th 889, Case No. F065690.  According to the Court, such documents are not protected from disclosure – and consequent inclusion in the administrative record in CEQA cases – by the common interest doctrine (derived from Evid. Code, §§ 912 and 952) “because the interests of a lead agency and a project applicant diverge fundamentally while the project application is pending….”  The Court’s decision left to another day the issue whether “administrative draft” documents may properly be excluded from the administrative record (because the trial court had not yet ruled on the issue), but appeared to express skepticism on that score in an unpublished portion of its opinion.
Continue Reading No Common Interest In CEQA Compliance Prior To Project Approval, Holds Fifth District In City of Ceres Decision That Conflicts With Third District’s California Oak Decision And Common Practice

Judging by all the recent articles and blog posts written about it, many commenters believe the Court of Appeal’s recent decision in Taxpayers For Accountable School Bond Spending v. San Diego Unified School Dist. (“Taxpayers”) (4th Dist 2013) 215 Cal.App.4th 1013 has broken (or at least replowed) significant legal ground and created serious new problems for local agencies and project developers by reinstituting a former CEQA requirement that a project’s impacts on “parking” be analyzed. 
Continue Reading Is “Parking” Really A CEQA Impact? Same As It Ever Was!

In a partially-published opinion, the Fifth District Court of Appeal held that the Merced County Planning Commission’s failure to mention in its posted agenda that it was considering adoption of a mitigated negative declaration (MND) in connection with a minor subdivision approval violated the Brown Act.  (San Joaquin Raptor Rescue Center v. County of Merced, et al. (5th Dist. 5/31/13) 216 Cal.App.4th 1167.  Key points of the published portion of the opinion include:
Continue Reading CEQA Determination Is Item of Business That Must Be Agendized Under Brown Act, Fifth District Holds

In a lengthy published opinion filed May 21, 2013, the First District Court of Appeal reversed a judgment granting a writ of mandate and upheld as legally adequate under CEQA the Marin Municipal Water District’s EIR for development and construction of a desalination plant in Marin County.  (North Coast Rivers Alliance, et al. v. Marin Municipal Water District Board of Directors (1st Dist., Div. 4, 2013) 216 Cal.App.4th 614.  The Court rejected Petitioner North Coast Rivers Alliance’s (Alliance) challenges to the adequacy of the EIR’s analysis of the project’s aesthetic, land use, seismic, hydrology, water quality, biological resources, and cumulative GHG impacts, as well as its challenges to the EIR’s environmental setting description of baseline physical conditions and alleging that various of its mitigation measures were improperly deferred.  In light of its reversal of the judgment, the Court dismissed the District’s related appeal of a post-judgment order awarding attorneys’ fees to Alliance as moot.
Continue Reading CEQA School In Session: First District Reverses Judgment Invalidating EIR for Desalination Plant Project In North Coast Rivers Alliance

There has been a lot of buzz around proposed SB 731, which is working its way through the State Legislature and will be heard Monday, May 20, in the Senate Appropriations Committee. Notwithstanding the hype and hopes, I think Jerry Brown probably had it right when he predicted last month that CEQA reform would not be accomplished in 2013.  While the debate has been vigorous, the political stars are simply not aligned to do what needs to be done to modernize and streamline the venerable 43-year old law.
Continue Reading The Direction of CEQA “Reform” Under Proposed SB 731: One Step Up and Three Steps Back?

Repetitive CEQA review and analysis is expensive, unnecessary, unproductive, and inimical to the goals of certainty and finality in the environmental review process.  In 2011, to address these concerns in the infill development context, the legislature enacted SB 226 adding Public Resources Code §§ 21094.5 and 21094.5.5 to CEQA.  These sections provided for streamlined CEQA review for qualifying “infill” projects and directed OPR to prepare, and to transmit to the Secretary of the Natural Resources Agency for adoption, implementing guidelines.

Under the authorizing legislation, a qualifying “infill project” is one that includes residential, retail/commercial, transit, school, and/or public office buildings and is “located within an urban area on a site that has been previously developed, or on a vacant site where at least 75 percent of the perimeter of the site adjoins, or is separated only by an improved public right-of-way from, parcels that are developed with qualified urban uses.”  (Pub. Resources Code, § 21094.5(e)(1)(B)).  The legislation further provides that “[a] lead agency’s determination pursuant to this section shall be supported by substantial evidence.”  (§ 21094.5(a)(1).)Continue Reading Towards Not Reinventing The CEQA Wheel: Resources Agency Adopts New CEQA Guidelines For Streamlined Review of Urban Infill Development