A lawsuit filed June 10, 2019, in the U.S. District Court for California’s Central District, and conspicuously reported on last month in Law360, takes dead aim at defendants who are alleged to have filed and threatened frivolous CEQA suits for the sole purpose of extorting monetary settlements – in this case, from plaintiffs alleging they are economically vulnerable Hollywood hotel project developers who were forced to capitulate to defendants’ extortionate demands.

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In a 38-page opinion filed on May 16, and belatedly ordered published on June 14, 2019, the Third District Court of Appeal affirmed the trial court’s judgment rejecting all of plaintiff/appellant Center for Biological Diversity’s (“CBD”) CEQA and statutory challenges to the EIR that the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (“DOGGR”) was required by S.B. 4 (Stats. 2013, ch. 13, § 2) to prepare “pursuant to [CEQA], to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state.”  (Pub. Resources Code, § 3161(b)(3)(A).)  The Court’s opinion addresses and disposes of CBD’s CEQA and other challenges in a highly unusual, and even unprecedented, context – that of a statutorily required program EIR addressing the statewide impacts of oil and gas well-stimulation treatments (including the controversial treatment known as hydraulic fracturing or “fracking”) prepared in the absence of any “project” being approved or undertaken by the ostensible “lead agency” (DOGGR).  Center for Biological Diversity v. California Department of Conservation, Division of Oil, Gas and Geothermal Resources, et al. (3d Dist. 2019) ___ Cal.App.5th ___.

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Successfully navigating CEQA litigation has been compared to walking a tightrope – myriad issues challenging an EIR can be (and often are) raised, and a “misstep” as to even a single one typically results in the court’s issuance of a writ decertifying the entire EIR and vacating the project approvals pending future CEQA compliance.  Fortunately, however, CEQA litigation can also be like a funnel, with its beginning at the top and its end at the bottom:  while many issues and challenges to an agency’s EIR can initially be raised, their subsequent final adjudication on the merits through a limited peremptory writ of mandate – one granting in part and denying in part a writ petition – serves to progressively eliminate and narrow the issues at play in any future litigation.  This is a result of the doctrine of res judicata (or claim preclusion), and a textbook example of that doctrine’s application in the CEQA litigation context can be found in the Third District’s recent partially published opinion in Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador (Newman Minerals, LLC, et al., Real Parties in Interest) (2019) 33 Cal.App.5th 165.  (The opinion was filed February 26, but later modified and certified for partial publication on March 20, 2019.)

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On March 13, 2019, at the losing Petitioner/Appellant’s request, the California Supreme Court ordered depublication of the Sixth District’s partially published opinion in Alliance of Concerned Citizens Organized for Responsible Development v. City of San Juan Bautista (2018) 29 Cal.App.5th 424 (No. S253725); my December 3, 2018 post on the case can be found here.  Review of the decision was not sought or granted, so its result stands unaffected by the high court’s action.  The main takeaway from this decision was that the nature of a final judgment is determined by its substance and effect in resolving the claims raised in the action on their merits, rather than by any label the court attaches to it.  The grant of depublication means only that, subject to very limited exceptions, the opinion “must not be cited or relied on by a court or a party in any other action.”  (Cal. Rules of Ct., Rule 8.1115(a).)

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Most real estate developers would likely agree that, even when correctly applied and complied with, CEQA can be an onerous law which can significantly complicate, delay, increase the cost of, and in some cases (particularly where CEQA litigation is involved) even preclude projects.  But what recourse does a project applicant have under the law when CEQA is misapplied – and blatantly so – by a local agency which denies approval of a project that is clearly exempt from CEQA on the meritless basis that extensive (and expensive) CEQA review is required?  When the developer’s only recourse is time-consuming and expensive litigation to obtain a writ of mandate setting aside the agency’s illegal action subjecting the project to CEQA, can the developer who succeeds in obtaining the writ recover from the public agency compensation and damages resulting from the temporary “taking” of all reasonable economic use of its property?

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The Federal Energy Regulatory Commission (“FERC”) issues licenses needed to construct and operate hydroelectric dams pursuant to the Federal Power Act (“FPA”; 16 U.S.C. § 791a, et seq).  Under long-standing law, and with the limited exception of state-issued water quality certifications, the FPA “occupies the field” of licensing a hydroelectric dam, and bars environmental review of the federal licensing procedure in state courts; this preemption is necessary because recognizing a “dual final authority” for such projects would be “unworkable.”  (First Iowa Hydro-Electric Cooperative v. Federal Power Com. (1946) 328 U.S. 152.)  States have limited authority under the Clean Water Act (33 U.S.C. § 1341) to impose stricter water quality conditions than are federally required on a FERC license, through the section 401 water quality certification process, but must act on a project applicant’s certification request within one year or certification is deemed waived.  (33 U.S.C. § 401(a)(1); Alcoa Power Generating Inc. v. FERC (D.C. Cir. 2011) 643 F.3d 963, 972.)  Further, any disputes concerning the Federal licensing process or the adequacy of “required studies” for that process (including “environmental studies” serving as the predicate for the state’s water quality certification conditions) are subject to FERC’s review.  (18 C.F.R. part 4, 34(i)(b)(vii) (2003).)

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“What’s in a name? That which we call a rose by any other name would smell as sweet;” – William Shakespeare, Romeo and Juliet, Act II, Scene II, ll. 47-48.

In a partially published 40-page opinion filed on November 26, 2018, the Sixth District Court of Appeal affirmed the trial court’s post-judgment order determining that respondents’ (City of San Juan Bautista and its city council) supplemental return complied with a previously issued peremptory writ and CEQA as directed.  But the opinion’s most valuable message to those toiling in the garden of the law – a profession where using the correct words is of paramount importance – is a simple Shakespearean one, to wit:  a final judgment by any other name is still a final judgment.  Alliance of Concerned Citizens Organized For Responsible Development v. City of San Juan Bautista (Harbhajan Dadwal, Real Party in Interest) (2018) 29 Cal.App.5th 424.


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On April 30, 2018, the United States Supreme Court denied the petition for writ of certiorari filed in North Coast Railroad Authority v. Friends of the Eel River, U.S. Supreme Ct. Case No. 17-915, which presented this issue:  “Whether citizen suits that seek to enforce state environmental approval requirements against a state-owned railroad by enjoining activities subject to the [Surface Transportation Board]’s exclusive jurisdiction are categorically preempted by [the Interstate Commerce Commission Termination Act of 1995].”  The high court’s denial of review left undisturbed the California Supreme Court’s novel decision holding state public entity NCRA’s railroad project on its own line was subject to CEQA (and also onerous and delay-producing CEQA litigation) as an act of “self-governance”, whereas private rail carriers are exempt from these “regulatory” burdens by virtue of federal preemption under ICCTA.  (My post on the California Supreme Court’s decision can be found here.)

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A fundamental prerequisite to a viable lawsuit is a plaintiff possessing standing to bring it, and in writ of mandate proceedings that generally means a person or entity actually possessing a beneficial interest in the legal relief being sought.  Nonetheless, CEQA’s broad statutory standing provisions, the “public interest exception” to beneficial interest standing, constitutional associational privacy claims, and the general unavailability of civil discovery (due to the general irrelevance of extra-record evidence) in administrative mandamus actions have all conspired to allow CEQA litigation standing abuses to become a large – and largely unchecked – problem.  Indeed, I have previously analyzed and written about this particular CEQA litigation abuse in depth.  (See, e.g., Standing Against Environmental Injustice: Some Thoughts On Facing The Need For CEQA Litigation Reform,” by Arthur F. Coon, posted July 18, 2017.)  I am thus happy to be able to report that, in an opinion filed November 28, and ordered published on December 19, 2017, the Fourth District Court of Appeal has now done something about it.  Specifically, it properly upheld the use of civil discovery directed to the issue of a plaintiff organization’s standing in a CEQA writ proceeding, and also affirmed the trial court’s judgment of dismissal after granting a terminating sanction for plaintiff’s discovery abuse in attempting to thwart such discovery.  This important new decision is Creed-21 v. City of Wildomar (Walmart Real Estate Business Trust, Real Party in Interest) (4th Dist., Div. 2, 2017) 18 Cal.App.5th 690.

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In a partially published opinion filed December 4, 2017, the Second District Court of Appeal affirmed the trial court’s post-remand judgment and held that CEQA’s remedies statute – Public Resources Code § 21168.9 – allows a court issuing a writ in a CEQA proceeding to partially decertify an EIR, and to leave unaffected project approvals in place when doing so.  Center for Biological Diversity, et al. v. California Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (2017) 17 Cal.App.5th 1245.

The opinion resulted from the second appeal in long-running litigation challenging approvals for the controversial Newhall Ranch development project in northwest Los Angeles County.  (I won’t reiterate the underlying facts and legal issues raised in the merits litigation, but my post on the Supreme Court’s November 30, 2015 opinion in the matter can be found here, and my post on the Court of Appeal’s July 11, 2016 partially published opinion on remand can be found here).


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