Remedies

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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

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?

In its terse, no-nonsense opinion in Alliance For the Protection of the Auburn Community v. County of Placer, et al. (2013) 215 Cal.App.4th 25, ordered published on April 2, 2013, the Third District Court of Appeal affirmed a judgment entered after sustaining a demurrer to a CEQA action without leave on statute of limitations grounds…

In Golden Gate Land Holdings LLC v. East Bay Regional Park District (4/12/13 1st Dist., Div. 5) 215 Cal.App.4th 353, the First District Court of Appeal explored the scope and proper application of CEQA’s remedies provision – Public Resources Code § 21168.9 – in the context of an eminent domain action filed before completion of necessary environmental review for the condemning agency’s project.  In a partially-published opinion, the Court affirmed a judgment vacating the East Bay Regional Park District’s (“District”) CEQA exemption finding, and ordering it to prepare an EIR for a project to acquire and construct a segment of the Bay Trail on eight acres of shoreline property, while allowing the District’s eminent domain action to proceed.
Continue Reading First District Holds CEQA Remedies Provision Allows Park District’s Eminent Domain Action To Proceed Pending Preparation of Project EIR So Long As Property Not Actually Acquired

The Second District Court of Appeal upheld  the County of Santa Barbara’s Final Revised Environmental Impact Report for a 30-year conditional use permit (CUP) for the Diamond Rock mine project.  Save Cuyama Valley v. County of Santa Barbara (2013 2nd Dist., Div. 6), 213 Cal.App.4th 1059 (filed 1/10/13, modified 2/8/13).  The CUP allowed excavation of 500,000 tons of sand and gravel each year by real party Troesch Materials, Inc. from the often dry bed of the Cuyama River.  Save Cuyama Valley lost its writ of mandate challenge to the EIR, and the Court of Appeal affirmed.
Continue Reading Second District Rejects CEQA Challenge To EIR for Riverbed Sand And Gravel Mining Project, Upholds Santa Barbara County’s Discretion to Formulate Project-Specific Threshold of Significance, and Finds EIR’s Erroneous “Not Significant” Conclusion Nonprejudicial

In a recent published decision addressing cumulative impacts, deferred mitigation, and water supply analysis issues, the Fourth District Court of Appeal’s most significant CEQA pronouncements may have been those addressing permissible remedies under Public Resources Code § 21168.9.  Specifically, in Preserve Wild Santee v. City of Santee (4th Dist. 2012) 210 Cal.App.4th 260, the Court of Appeal made the following points:
Continue Reading Common Sense Reading of CEQA Remedies Statute Authorizes “Limited Writ” for Violations, Fourth District Holds, Rejecting Contrary Fifth District Decision

A unanimous Third District panel upheld SiskiyouCounty’s EIR for Roseburg Forest Products Co.’s (Roseburg) electricity cogeneration project involving expansion of its existing wood veneer manufacturing facility.  (Mount Shasta Bioregional Ecology Center v. County of Siskiyou (3d Dist. 9/26/12) 210 Cal.App.4th 184.  In rejecting the CEQA challenge brought to the EIR by plaintiffs Mount Shasta Bioregional Ecology Center (MSBEC) and Weed Concerned Citizens (WCC), the Court of Appeal resolved a key issue of first impression regarding the adequacy of an EIR’s alternatives analysis.  It also rendered numerous holdings reaffirming the substantial deference CEQA accords to an EIR’s analysis and conclusions, and reinvigorating CEQA’s “established [statutory] principle that there is no presumption that error is prejudicial.”  (Pub. Resources Code, § 21005(b).)  
Continue Reading EIR Satisfies CEQA Despite Minor Deficiencies and Inaccuracies Where Environmental Review Process Not Prejudiced, Third District Holds

As the regulated community eagerly awaits completion of briefing at the Supreme Court in the Berkeley Hillside Preservation case, the Courts of Appeal continue to decide CEQA categorical exemption cases – as is their nondiscretionary duty – without the high court’s forthcoming guidance.  The most recent such case is the Third District’s published decision in Voices for Rural Living v. El Dorado Irrigation District (Shingle Springs Band of Miwok Indians, RPI) (10/4/12, 3d Dist.) 209 Cal.App.4th 1096, No. C064280.  The case illustrates application of the unusual circumstances exception to categorical exemptions in a fairly unusual context – a water supply MOU for an already-built and operating Indian casino and hotel in El Dorado County – and offers interesting insights on CEQA exemption and water supply issues, as well as issues involving the nature and authority of LAFCO and special districts in the context of annexation approval conditions.
Continue Reading CEQA’s Unusual Circumstances Exception To Small Structures Categorical Exemption Is Applied By Third District To Water Supply MOU With Indian Tribe

The same appellate panel that decided the controversial Berkeley Hillside Preservation case (which is currently in the briefing stage of Supreme Court review) rendered another significant categorical exemption decision in its recently published opinion in Robinson v. City and County of San Francisco (T-Mobile West Corporation, et al., Real Parties) (July 26, 2012, 1st Dist., Div. 4) 208 Cal.App.4th 950.  This opinion was more deferential to the local agency’s exemption decision, and seemingly more circumspect regarding both its practical impact on the utility of categorical exemptions and its acknowledgment of the split of judicial authority in the standard of review applicable to exceptions to exemptions.
Continue Reading First District Holds CEQA’s Class 3 Categorical Exemption Applies To Installations of Small Telecommunications Equipment On Existing Utility Poles, Recognizes Split In Case Law On Standard of Review For Cumulative Impact Exception