On August 11, 2015, the Governor’s Office of Planning and Research (OPR) released a 145-page “Preliminary Discussion Draft” of “Proposed Updates to the CEQA Guidelines” (the “Discussion Draft”). The Discussion Draft “contains [OPR’s] initial thoughts on possible amendments to the CEQA Guidelines” and proposes revisions to nearly thirty (30) sections that OPR classifies into three categories: (1) efficiency improvements; (2) substance improvements; and (3) technical improvements. If ultimately adopted in some form, the Discussion Draft’s proposals would constitute the most comprehensive update to the Guidelines since the late 1990s. The Discussion Draft’s Executive Summary describes it as “a balanced package that is intended to make the [CEQA] process easier and quicker to implement, and better protect natural and fiscal resources consistent with other state environmental policies.”
Continue Reading Proposed CEQA Guidelines Amendments: A Critique Of OPR’s “Preliminary Discussion Draft” (Part I – Proposed “Efficiency Improvements”)
Remedies
Back To The Chalk Board: School District’s Math Fails To Justify CEQA Categorical Exemption For School Closures
By Arthur F. Coon on
In a published opinion filed September 2, 2015, the Fourth District Court of Appeal (Division 2) reversed the trial court’s judgment denying a writ petition challenging a school district’s determination that its closure of two schools and related student transfers were exempt from CEQA. Save Our Schools v. Barstow Unified School District Board of Education (2015) 240 Cal.App.4th 128. In directing on remand the issuance of a writ that would, at a minimum, mandate that the District void its exemption determination and reconsider the matter, the Court also held that the District could in further proceedings consider additional evidence not before it at the time it made its initial exemption decision, and that any challengers would have the opportunity to present additional evidence as well.
Continue Reading Back To The Chalk Board: School District’s Math Fails To Justify CEQA Categorical Exemption For School Closures
CEQA Litigation Abuses Documented By New Empirical Study Of Recent Case Filings
By Arthur F. Coon on
Posted in Climate Change/GHG, Land Use, Legislation, Litigation, Reform, Remedies, Standing, Uncategorized
A 138-page report, including 371 footnotes and a 30-page appendix listing all properly documented CEQA lawsuits filed in California over its 3-year study period (2010-2012), has been posted by its authors, Holland & Knight attorneys Jennifer Hernandez, David Friedman and Stephanie DeHerrera (the “authors”) on their firm’s website. The study is entitled “In the Name of the Environment” and subtitled “How Litigation Abuse Under the California Environmental Quality Act Undermines California’s Environmental, Social Equity and Economic Priorities – and Proposed Reforms to Protect the Environment From CEQA Litigation Abuse.” Based on my review, the study will be a valuable and interesting read for environmental and land use lawyers, consultants, and others regularly involved with or interested in the CEQA process. That said, its findings and conclusions will not come as any surprise to those on the front lines of CEQA litigation.
Continue Reading CEQA Litigation Abuses Documented By New Empirical Study Of Recent Case Filings
Fourth District Holds Losing CEQA Plaintiff’s Mooted Appeal Was Not “Catalyst” To City’s Revocation Of Project Entitlements After Developer Abandoned Project; Trial Court’s Denial Of Private Attorney General Fee Motion Affirmed
By Arthur F. Coon on
In an opinion filed June 8, and ordered published on July 6, 2015, the Fourth Appellate District Court of Appeal affirmed the trial court’s judgment denying a CEQA plaintiff’s motion for attorneys’ fees under CCP § 1021.5, California’s private attorney general statute. Coalition for a Sustainable Future In Yucaipa v. City of Yucaipa (Target Stores, Inc., Real Party In Interest) (4th Dist., Div. 2, 2015) 238 Cal.App.4th 513. The Court’s opinion explicates in detail and applies the rules governing such motions when brought on a catalyst theory, and does so in a rather unique procedural context – one in which the moving party was an unsuccessful CEQA plaintiff whose appeal of an adverse judgment became moot as a result of the developer’s abandonment of the challenged project for reasons wholly unrelated to plaintiff’s action.
Continue Reading Fourth District Holds Losing CEQA Plaintiff’s Mooted Appeal Was Not “Catalyst” To City’s Revocation Of Project Entitlements After Developer Abandoned Project; Trial Court’s Denial Of Private Attorney General Fee Motion Affirmed
A CEQA Trustee Agency “Muscles Up”: Third District Holds Department of Fish and Wildlife’s Newly Exercised Power To Require Notice Of And Regulate Substantial Water Diversions – Even Absent Streambed Alteration – Was Always Unambiguously Authorized By Fish & Game Code Section 1602
By Arthur F. Coon on
Under CEQA, a “trustee agency” is a “state agency having jurisdiction by law over natural resources affected by a project which are held in trust for the people of the State of California” and “[t]he California Department of Fish and Game [now Wildlife (“DFW”)] [is such a trustee agency] with regard to the fish and wildlife of the state, to designated rare or endangered native plants, and to game refuges, ecological reserves, and other areas administered by the department.” (14 Cal. Code Regs., § 15386(a).) CEQA lead agencies are required to provide notice to and consult with DFW and other trustee agencies (among other public agencies and entities) with respect to CEQA documents being prepared by the lead agency for projects that may affect the relevant resources. (E.g., 14 Cal. Code Regs., § 15086(a)(2) [lead agency shall consult with and request comments on Draft EIR from trustee agencies].) Development projects requiring work to be done in and around rivers, streams and lakes commonly require the developer – as one of the many project approvals typically required – to enter into what has become popularly known as a “Streambed Alteration Agreement” (“SAA”) with DFW to protect fish and wildlife resources that may be affected by the project. (See Fish & Game Code, § 1603; Environmental Protection Information Center v. California Dept. of Forestry & Fire Protection (2008) 44 Cal.4th 459, 1518-1521 [discussing statutory provisions for so-called “streambed alteration agreements” and their interplay with CEQA].)
Continue Reading A CEQA Trustee Agency “Muscles Up”: Third District Holds Department of Fish and Wildlife’s Newly Exercised Power To Require Notice Of And Regulate Substantial Water Diversions – Even Absent Streambed Alteration – Was Always Unambiguously Authorized By Fish & Game Code Section 1602
California Supreme Court Construes CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions in Berkeley Hillside Preservation v. City of Berkeley Decision
By Arthur F. Coon on
In a 46-page majority opinion written by Justice Chin and joined by four other justices, punctuated by an 18-page concurring opinion (by Justice Liu, joined by Justice Werdegar) which reads like a dissent, the California Supreme Court reversed the First District Court of Appeal’s judgment in Berkeley Hillside Preservation v. City of Berkeley (Case Nos. S201116, A131254) and remanded for further proceedings.
Continue Reading California Supreme Court Construes CEQA’s “Unusual Circumstances” Exception to Categorical Exemptions in Berkeley Hillside Preservation v. City of Berkeley Decision
First District Publishes Decision Rejecting CEQA Challenges To Cal Fire’s Approval of Gualala Area Nonindustrial Timber Management Plan And Related Attempt To Challenge Department of Fish And Wildlife’s Discretionary Decision Not To Oppose Plan
By Arthur F. Coon on
In a decision filed December 2, and later ordered published on December 30, 2014, the First District Court of Appeal affirmed the Mendocino County Superior Court’s judgment denying a petition for writ of mandate challenging a Nonindustrial Timber Management Plan (NTMP) for 615 acres adjacent to Gualala. Center for Biological Diversity v. California Department of Forestry and Fire Protection (North Gualala Water Company, John and Margaret Bower, Bower Limited Partnership, Real Parties In Interest) (1st Dist., Div. 5, 2014) 232 Cal.App.4th 931, Case No. A138914. The NTMP – which functions as the equivalent of an EIR for purposes of CEQA under the certified regulatory program of the Forest Practice Act (Pub. Resources Code, § 4511 et seq.; “FPA”) and Forest Practice Rules (14 Cal. Code Regs., § 895 et seq.; “FPR”) – was approved by the California Department of Forestry and Fire Protection (Cal Fire) on application of the above-named real parties in interest (Bower).
Continue Reading First District Publishes Decision Rejecting CEQA Challenges To Cal Fire’s Approval of Gualala Area Nonindustrial Timber Management Plan And Related Attempt To Challenge Department of Fish And Wildlife’s Discretionary Decision Not To Oppose Plan
Second District Holds Short CEQA Statute Of Limitations Not Triggered By NOD That Fails To Provide Public Notice Of Material Changes In Project As Actually Constructed From That Described In EIR
By Arthur F. Coon on
On December 15, 2014, the Second District Court of Appeal (Division 6) issued a pithy published opinion affirming the Ventura County Superior Court’s judgment. The judgment granted a peremptory writ of mandate requiring Ventura County to prepare a supplemental EIR for a completed medical clinic building on the Ventura County Medical Center Campus (campus). Ventura Foothill Neighbors v. County of Ventura (2d Dist., Div. 6, 2014) 232 Cal.App.4th 429.
Continue Reading Second District Holds Short CEQA Statute Of Limitations Not Triggered By NOD That Fails To Provide Public Notice Of Material Changes In Project As Actually Constructed From That Described In EIR
“Making CEQA A Federal Case? Recent Actions of California’s Supreme Court and the Federal Surface Transportation Board Set Up A Preemption Showdown”
By Arthur F. Coon on
Controversy has dogged the California high speed rail project since before its inception with the 2008 passage of Proposition 1A, the bond measure providing the project’s initial funding. The controversy has not abated in the years since, and the project has been subject to ever-escalating cost estimates and almost constant second-guessing. It has also been the target for multiple CEQA lawsuits. Recent developments in this area demonstrate just how complex the legal landscape can get when it comes to CEQA’s application to large and long-term public railway projects. Two very different bodies – the California Supreme Court and the federal Surface Transportation Board (STB) – have just waded into this legal thicket to try to provide some clarity. But things could get worse before they get better in that regard, as the stage is set for potentially conflicting rulings on the application of federal preemption law to CEQA.
Continue Reading “Making CEQA A Federal Case? Recent Actions of California’s Supreme Court and the Federal Surface Transportation Board Set Up A Preemption Showdown”
Fifth District Rejects CEQA Challenge to Fresno County Aggregate Mine Project EIR In Partially Published Decision, Clarifies State Mining Board’s Smara Powers and CEQA’s Farmland Loss Mitigation Rules
By Arthur F. Coon on
In a lengthy, 65-page opinion filed December 8, 2014 (of which fully two-thirds was unpublished), the Fifth District Court of Appeal affirmed the Fresno County Superior Court’s judgment upholding the EIR, Conditional Use Permit (CUP), and reclamation plan approvals for the Carmelita Mine and Reclamation Project, an aggregate mining and processing operation proposed to be located at a 1,500-acre site 15 miles east of Fresno. Friends of the Kings River v. County of Fresno (Colony Land Company, L.P., and Carmelita Resources, LLC, RPI) (5th Dist. 2014) 232 Cal.App.4th 105. The project contemplates extraction of 1.25 million tons of aggregate per year, from 22 individual mining cells of about 40 acres each, over a period of up to 100 years, with mining and subsequent reclamation activities to proceed on a cell-by-cell basis.
Continue Reading Fifth District Rejects CEQA Challenge to Fresno County Aggregate Mine Project EIR In Partially Published Decision, Clarifies State Mining Board’s Smara Powers and CEQA’s Farmland Loss Mitigation Rules