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).)
“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) ___ Cal.App.5th ___.
Continue Reading CEQA Plaintiff’s Failure To Appeal Incorrectly Labeled “Interlocutory” Decision Granting Peremptory Writ Barred Appellate Review Of Decision On Later Appeal From Post-Judgment Order Erroneously Labeled “Final Judgment”
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.)
Continue Reading When “Tigers Eat Their Young” – Federal Preemption Of CEQA In Context Of Railroad Projects Will Continue To Present Complex Issues Following U.S. Supreme Court’s Denial of Certiorari In Friends Of Eel River Case
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.
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) ____ Cal.App.5th _____.
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).
As another year draws near its close, a number of notable recent CEQA developments in both the legislative and regulatory arenas have occurred that bear mention. Below are some highlights of new CEQA legislation that will be in effect in the new year, as well as significant regulatory changes in process.
In a lengthy, partially published opinion filed November 21, 2017, the Fifth District Court of Appeal addressed four CEQA challenges asserted by plaintiffs and appellants (“AIR”) to the sufficiency of Kern County’s 2014 Final EIR for Real Parties’ (“Alon Energy”) project to modify an existing Bakersfield oil refinery. Association of Irritated Residents v. Kern County Board of Supervisors, et al. (Alon USA Energy, Inc., et al., Real Parties in Interest) (2017) 17 Cal.App.5th 708. The proposed modification would allow the refinery, which has existed and operated at the site through various ownerships since 1932, to unload two unit trains (104 cars) of crude oil (150,000 barrels) per day. The trains would carry potentially more volatile crude oil (i.e., likely to explode in a rail accident) transported from the Bakken formation in North Dakota. The refinery would process 70,000 barrels of crude oil per day, its currently authorized maximum level, and pipe the balance of the unloaded crude to other refineries to be processed.
Continue Reading Fifth District Holds Cap-And-Trade Program Compliance Supports Refinery Project EIR’s Conclusion That GHG Emissions Are Less Than Significant, Also Addresses Important CEQA Baseline and Railroad Operation Preemption Issues
When it comes to CEQA cases, some courts don’t seem to know when to stop beating a dead horse. So it may be with the Fourth District Court of Appeal’s 43-page, published, 2-1 majority decision, accompanied by a 4-page dissent, filed on November 16, 2017, after remand from the California Supreme Court in Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al. (4th Dist., Div. 1, 2017) 17 Cal.App.5th 413. My previous blog post on the Supreme Court’s disappointingly narrow opinion, which decided only the issue whether SANDAG’s 2011 EIR for its Regional Transportation Plan/Sustainable Community Strategy (RTP/SCS) violated CEQA by not explicitly engaging in an analysis of consistency of projected 2050 GHG emissions with a 2005 executive order (holding it didn’t), can be found here.
The Court of Appeal’s previous published decision, of course, reached that narrow GHG analysis issue and a lot more – it held SANDAG’s EIR was deficient in literally all respects argued by plaintiffs and intervenor/appellant the People, i.e., failure to analyze consistency with the 2005 Executive Order; failure to adequately address GHG mitigation; failure to analyze a reasonable range of project alternatives; failure to adequately analyze and mitigate air quality and particulate matter pollution impacts; and understating agricultural land impacts. In supplemental briefing following the Supreme Court’s remand, Cleveland and the People requested the Court to issue a revised published opinion essentially the same as Cleveland I, albeit slightly revised to acknowledge the Supreme Court’s partial reversal.
In an opinion originally filed on July 31, and belatedly ordered partially published on August 24, 2017, the Sixth District Court of Appeal affirmed the trial court’s judgment denying a writ petition brought by a citizens group (Highway 68) on CEQA and Planning and Zoning Law grounds, and upheld the Monterey County Board of Supervisors’ 2012 approval of a shopping center project. The Highway 68 Coalition v. County of Monterey, et al. (Omni Resources LLC, Real Party in Interest) (6th Dist. 2017) 14 Cal.App.5th 883.
In relevant (published) part, the Court upheld the trial court’s interlocutory remand to the County’s Board of Supervisors to clarify or make further findings required to demonstrate the project’s consistency with certain provisions of County’s General Plan requiring express, evidence-supported findings that the project has “a long-term sustainable water supply”; in so doing it rejected arguments that this procedure violated CEQA’s remedies statute (Public Resources Code, § 21168.9), which generally prescribes writ relief for CEQA violations. (The much lengthier, unpublished portion of the Court’s opinion, which will not be addressed in detail in this post, rejected Highway 68’s remaining non-general plan CEQA arguments alleging: violations of due process in the remand proceedings; CEQA violations in the EIR’s analysis of the Project’s water rights, and water balance, demand and recharge scheme, groundwater/soil contamination, and traffic analysis methodology; and violation of CEQA’s prohibition on “segmentation” or “piecemealing” of environmental review.)
Continue Reading Sixth District Holds Project’s Consistency with General Plan Is Not a CEQA Issue, Upholds Trial Court’s Interlocutory Remand for County Board to Clarify Consistency Findings, and Affirms Judgment Denying Writ Petition Alleging General Plan and CEQA Challenges to Shopping Center Project
On July 7, 2017, the California Supreme Court filed its 69-page opinion, written by Chief Justice Cantil-Sakauye and joined by five other justices, in Friends of the Eel River v. North Coast Railroad Authority, et al. (2017) 3 Cal.5th 677. The Court held that the Interstate Commerce Commission Termination Act of 1995 (“ICCTA”; 49 U.S.C., § 10101 et seq.) does not exempt the application of CEQA to a railroad project undertaken by a state public entity, defendant North Coast Railroad Authority (NCRA), on a rail line also owned by that entity. The Court acknowledged that ICCTA’s federal regulatory scheme would preempt a state’s imposition of environmental regulation such as CEQA on a privately owned railroad. That is because settled federal law holds ICCTA preempts a state’s imposition of “environmental preclearance requirements” that have the effect of preventing or delaying the operation of a privately owned railroad. But the Court also held that, as applied to govern the conduct of subdivisions of the sovereign state, the CEQA process constitutes an act of “self-governance” and not preempted “regulation” within the meaning of ICCTA.
Continue Reading California Supreme Court Holds CEQA Applies to State Entity’s Railroad Project on State-Owned Rail Line as Act of “Self-Governance”, Not “Regulation” That Would Be Preempted by Federal Law