In a partially-published, 150-page slip opinion resolving appeals in consolidated cases, and filed February 25, 2020, the Fifth District Court of Appeal affirmed in part and reversed in part a trial court decision finding CEQA defects in the 1800-plus page EIR prepared for Kern County’s adoption of an ordinance designed to provide a streamlined, ministerial permitting process for new oil and gas wells in the county.  King and Gardiner Farms, LLC v. County of Kern, et al. (California Independent Petroleum Association, et al., Real Parties in Interest); Committee for a Better Arvin, et al. v. County of Kern, et al. (California Independent Petroleum Association, et al., Real Parties in Interest) (5th Dist. 2020) ____ Cal.App.5th ____.  The published portion of the opinion held the EIR improperly deferred the formulation and implementation of mitigation for significant water supply impacts; failed to adequately mitigate farmland conversion impacts due to improper reliance on agricultural conversion easements (ACEs) as offsetting mitigation; and failed to adequately analyze noise impacts by relying solely on an absolute cumulative numerical limit threshold of significance, rather than also analyzing the significance of the magnitude of project noise increases over ambient levels in differently affected settings.  (Approximately 53 pages of the opinion, a portion finding CEQA violations with respect to air quality and related health risks due to failure to adequately discuss PM 2.5 emissions impacts and related mitigation, and failure to recirculate the DEIR after adding significant new information in the form of an appended Cumulative Health Risk Assessment, were not certified for publication; consequently, those portions set no precedent and will not be discussed in further detail in this post.)

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Despite well-reasoned requests for depublication made by the City of Los Angeles, the California Building Industry Association (CBIA), the California State Association of Counties (CSAC) and the League of California Cities (League), the Second District’s questionable and controversial decision in Stopthemillenniumhollywood.com, et al. v. City of Los Angeles, et al. (2019) 39 Cal.App.5th 1 remains “on the books” as published precedent.  The California Supreme Court on November 26, 2019 entered its order denying the depublication requests and declining to review the matter on its own motion.  Justice Corrigan and Justice Kruger voted to depublish the opinion, about which I previously blogged here.

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By October 21, 2019 letter – a decision on which is due by December 20, 2019 – the California State Association of Counties (“CSAC”) and the League of California Cities (“League”) have requested the California Supreme Court to depublish the Second District’s decision in a CEQA case involving a controversial Hollywood development project. Stopthemillenniumhollywood.com, et al. v. City of Los Angeles, et al. (2019) 39 Cal.App.5th 1.  A copy of the CSAC/League letter can be accessed here; I previously blogged on this case here.

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In an opinion originally filed on July 31, and belatedly ordered published on August 22, 2019, the Second District Court of Appeal (Division 3) affirmed a judgment granting a CEQA writ petition invalidating the final EIR and project entitlements for the Millennium Project, a controversial proposed mixed-use development on a 4.47-acre parcel straddling Vine Street and surrounding the historic Capital Records Building in Hollywood.  Stopthemillenniumhollywood.com, et al. v. City of Los Angeles, et al. (Millennium Hollywood LLC, Real Party in Interest) (2019) ___ Cal.App.5th ___.  The Court upheld the trial court’s finding that the EIR violated CEQA’s requirement for a stable and finite project description as a matter of law.  Reasoning that “the project description is at the heart of the EIR process in this case,” the Court found it “not necessary to reach appellants’ [the City and developer Millennium]” challenges to several other grounds upon which the trial court issued its writ, including findings that the EIR’s transportation analysis improperly failed to use responsible agency Caltrans’ methodology, that its analysis of cumulative traffic impacts was unsupported by substantial evidence, and that a condition of approval improperly expanded the approved project uses beyond those actually analyzed in the EIR.  It also declined to address plaintiff/cross-appellant’s claim that the City failed to notice and consult with the California Geological Survey regarding potential seismic hazards.

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Background

A long time ago, in a legal galaxy far, far away, Emperor Reagan signed the California Environmental Quality Act (“CEQA”) into law.  For many years, the “dark forces” that had wrought the adverse environmental impacts giving rise to CEQA – land developers and the public agencies granting their approvals – labored under its ever-expanding yoke.  Many litigation battles were fought, and many won by the heroic Jedi of the environmental plaintiffs’ bar and their NGO clients, firmly establishing the preeminence and vast reach of CEQA’s seemingly beneficent empire into the far-flung corners of the legal universe.  CEQA’s “force” was such that no project with the potential to effect a physical change in the environment, unless granted legislative or magisterial exemption, escaped its watchful eye and mitigating powers.


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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) 36 Cal.App.5th 210.

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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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