In a published opinion filed December 29, 2020, the First District Court of Appeal affirmed a judgment denying a petition for writ of mandate filed by the Santa Clara Valley Water District (District) challenging waste discharge requirements (WDRs) belatedly imposed by a responsible agency, the San Francisco Bay Regional Water Quality Control Board (Board), on lead agency District’s flood control project.  Santa Clara Valley Water District v. San Francisco Bay Regional Water Quality Control Board (2020) 59 Cal.App.5th 199.  The case involved highly unique facts, and a number of interesting legal issues concerning the Board’s authority under the Federal Clean Water Act (CWA), the state Porter-Cologne Act, and CEQA.

Continue Reading Can a Responsible Agency Get A Second Bite At The CEQA Apple? First District Says “Sometimes, Yes,” Upholds Regional Water Board’s Imposition of Additional Mitigation On Flood Control Project Through “Independent” Porter-Cologne Act Authority Exercised Subsequent To Grant Of CWA § 401 Water Quality Certification Based On Lead Agency’s Unchallenged Final EIR

“The life of the law has not been logic: it has been experience.” – Oliver Wendell Holmes, Jr., The Common Law (1881)

“CEQA discourse has become increasingly abstract, almost medieval in its scholasticism.” – former California Governor Edmund G. (“Jerry”) Brown, Jr.

by Arthur F. Coon

On November 24, 2020, the Fifth District Court of Appeal filed its partially published opinion in the latest installment of the long-running CEQA litigation over Fresno County’s approval of the Friant Ranch project.  Sierra Club v. County of Fresno (Friant Ranch, L.P., Real Party in Interest) (2020) 57 Cal.App.5th 979.  The litigation involves a 942-acre mixed-use development project (2500 residential units, 250,000 square feet of commercial space, 460 acres of open space) for which the Notice of Preparation (NOP) of the EIR was issued in 2007; it has generated an earlier appellate opinion (see my 6/16/14 post here) and a Supreme Court opinion (see my 12/28/18 post here) addressing important standard of review issues centered on the adequacy of the project EIR’s air quality impacts discussion.


Continue Reading Remedial Legal Logic: Fifth District Doubles Down On Split with Other Districts in Holding CEQA Doesn’t Allow Limited Writ Remedy of Partial EIR Decertification – But Does It Really Matter?

A little over a year ago, I posted about the filing of a federal RICO (the federal “Racketeer Influenced and Corrupt Organizations Act”; 18 U.S.C. § 1962 et seq.) lawsuit by developer Relevant Group, LLC and related entities (“Relevant”) alleging that defendants (Stephan “Saeed” Nourmand and Michael Nourmand and their business entities) filed and threatened frivolous CEQA suits solely to “shake down” and extort monetary settlements – without regard to environmental concerns – from economically vulnerable hotel project developers.  (See CEQA Meets RICO:  True Stories Of Extortion and Litigation Abuse in Tinseltown,” posted July 12, 2019.)  Since then, the litigation has progressed significantly.  After surviving a robust motion to dismiss, the case has become “at issue” with defendants’ filing of an answer to plaintiffs’ Second Amended Complaint (“SAC”) on June 24, 2020, and the District Court filing a Scheduling and Case Management Order on July 24, 2020.

Continue Reading CEQA Meets RICO: Round Two

“Birds of a feather flock together.”  — Proverb

The Fourth District Court of Appeal (Div. 2) affirmed a judgment entered after the sustaining of a demurrer without leave, holding that a mandate action brought by The Inland Oversight Committee (IOC), CREED-21, and Highland Hills Homeowners Association (HOA) alleging CEQA and Water Code violations was barred by res judicata (based on the final judgment in the HOA’s prior related CEQA action), and failure to state a claim.  The Inland Oversight Committee v. City of San Bernardino (First American Title Insurance Company) (2018) 27 Cal.App.5th 771.  (The Court’s opinion, filed September 14 and later ordered published on September 27, 2018, denied the parties’ motions to dismiss and strike and related requests for judicial notice as moot in light of its disposition on the merits.)


Continue Reading Fourth District Holds CEQA Challenge To Ministerial Approval Of Development Project Modifications Barred By Res Judicata, Water Supply Assessment Not Required