On February 13, 2025, the Second District Court of Appeal (Div. 7) filed its 71-page published opinion affirming the trial court’s judgment rejecting CEQA safety hazard and cumulative impacts analysis challenges – as well as Administrative Procedure Act (“APA”) and generic “arbitrary and capricious” writ challenges – to the California Air Resources Board’s (“CARB”) August 2020 decision adopting the “Control Measure For Ocean-Going Vessels At Berth” (the “Regulation,” codified at 17 Cal. Code Regs. § 93130 et seq). Western States Petroleum Association v. California Air Resources Board (2025) 108 Cal.App.5th 938.Continue Reading Second District Affirms Judgment Rejecting CEQA And Other Challenges To CARB’s “Technology-Forcing” Emissions-Control Regulation For At-Berth Tanker And Other Ships
Responses to Comments
First District Addresses Significant CEQA Issues Relating to Wildfire Risk, GHG Emissions, and Water Supply Impacts in Lake County Resort Development Case
On November 22, 2024, the First District Court of Appeal’s (Div. 4) partially-published opinion in People of the State of California ex rel. Bonta v. County of Lake (Lotusland Investment Holdings, Inc., et al. Real Parties in Interest) (2024) 105 Cal.App.5th 1222 (No. A165677) became final. The published part of the decision addresses several significant CEQA topic areas, including the adequacy of an EIR’s discussions of impacts related to a large rural resort development project’s wildfire risks and water supply impacts, and the propriety of a lead agency’s condition of approval imposing a carbon credit purchase obligation to potentially mitigate the project’s significant and unavoidable greenhouse gas (GHG) emissions in light of acknowledged uncertainty as to whether such credits would be available. (As a matter of disclosure, Respondent County of Lake was represented in the trial and appellate proceedings in this case by this post’s authors, Miller Starr Regalia attorneys Arthur Coon and Matthew Henderson.)Continue Reading First District Addresses Significant CEQA Issues Relating to Wildfire Risk, GHG Emissions, and Water Supply Impacts in Lake County Resort Development Case
Fifth District Affirms Judgment Rejecting CEQA/APA Challenges to CARB’s Approval of ZEV Truck Sales Mandate Regulation; Holds Alternatives and Mitigation Analyses Need Not Include Low-NOx Vehicle Credit Contrary to Project’s Underlying Fundamental Purpose
In an opinion filed August 27 and later ordered published on September 24, 2024, the Fifth District Court of Appeal affirmed a judgment denying a writ petition that challenged the State Air Resources Board’s (CARB) adoption of the Advanced Clean Trucks Regulation (Regulation) on CEQA and Administrative Procedures Act (APA; Gov. Code, § 11340 et seq) grounds. California Natural Gas Vehicle Coalition v. State Air Resources Board (2024) 105 Cal.App.5th 304. The Court held that CARB’s in-depth study of three alternatives (including the “no project” alternative) constituted a reasonable range for CEQA purposes; it further held that CARB’s alternative analysis wasn’t deficient for rejecting without in-depth study, as infeasible for policy reasons, an alternative proposed by opponents of the Regulation that would have applied a low-NOx vehicle credit to sales mandates applicable to zero-emission vehicles (ZEV). Based on the same reasoning, the Court held CARB also need not have considered the now-NOx vehicle credit as a mitigation measure for the acknowledged significant near-term air quality impacts of the Regulation. (The Court also rejected appellant Coalition’s APA arguments in a portion of its opinion that won’t be further discussed in this post.) Finally, the Court held on CARB’s affirmative appeal that any error with respect to the admission of a specific “white paper” document into the administrative record was nonprejudicial, and therefore harmless, as it did not impact either the trial court’s or its own analysis.Continue Reading Fifth District Affirms Judgment Rejecting CEQA/APA Challenges to CARB’s Approval of ZEV Truck Sales Mandate Regulation; Holds Alternatives and Mitigation Analyses Need Not Include Low-NOx Vehicle Credit Contrary to Project’s Underlying Fundamental Purpose
Fourth District Reverses Judgment Granting Writ and Holds City of Upland’s MND For Warehouse Project Satisfies CEQA; Rejects Arguments That City’s Choice and Application of Quantitative GHG Significance Threshold Lacked Substantial Evidence Support
In an opinion filed August 15, and modified and certified for publication on September 13, 2024, the Fourth District Court of Appeal (Div. 2) resolved cross-appeals from a judgment granting a limited writ by reversing with directions to deny the writ. The Court thus found the City of Upland’s (City) Mitigated Negative Declaration (MND) for approvals of a 201,096-square foot parcel-delivery warehouse project legally adequate under CEQA. Upland Community First v. City of Upland (2024) 105 Cal.App.5th 1. In doing so, the Court not only upheld an environmental document (an MND) that is, in general, notoriously difficult to defend under CEQA’s applicable “fair argument” standard of review, but also upheld, as supported by substantial evidence: (1) City’s application of a stringent 3,000 MTCO2 e/year quantitative threshold of significance to the project’s GHG emissions, and (2) City’s determination that the project’s “net-over-baseline” GHC emissions would not exceed that threshold – despite some effort being required to “connect the dots” regarding the record evidence to show the City’s math in reaching that determination. While ultimately irrelevant to the outcome in their favor, the Court also held that City and the project’s developer (Bridge) forfeited – by failing to timely raise – their alternative argument that the project’s GHG emissions were insignificant based on a different, qualitative “threshold,” i.e., City’s finding that the project was consistent with its Climate Action Plan (UCAP). Finally, the Court rejected all of project opponent UCF’s appellate challenges to City’s MND based on allegedly faulty traffic and VMT analyses.Continue Reading Fourth District Reverses Judgment Granting Writ and Holds City of Upland’s MND For Warehouse Project Satisfies CEQA; Rejects Arguments That City’s Choice and Application of Quantitative GHG Significance Threshold Lacked Substantial Evidence Support
Third District Rejects CEQA and Other Challenges to Department of Water Resources’ EIR for Amendments Extending Long-Term State Water Project Supply Contracts Through 2085
In a 51-page published opinion filed January 5, 2024, and resolving consolidated appeals, the Third District Court of Appeal rejected baseline, piecemealing/segmentation, impact analysis, project description, alternatives analysis, and failure-to-recirculate challenges to the EIR for the Department of Water Resources’ (“DWR”) approval of amendments to long-term water supply contracts with local government agencies receiving water through the State Water Project (“SWP”). The amendments extended the contracts, which were originally entered into in the 1960s for 75-year terms, so as to end in the year 2085, and made other amendments to their financial provisions. In the course of affirming the trial court’s judgment upholding the EIR and contract amendments against CEQA, Delta Reform Act, public trust doctrine, and other challenges, the Court of Appeal applied numerous well-established CEQA principles in the enormously significant and complex context of continuing long-term SWP contracts. Planning and Conservation League, et al v. Department of Water Resources, et al, etc. (2024) 98 Cal.App.5th 726 (Ct. App. Nos. C096304, C096316, C096384).Continue Reading Third District Rejects CEQA and Other Challenges to Department of Water Resources’ EIR for Amendments Extending Long-Term State Water Project Supply Contracts Through 2085
Sixth District Reverses Judgment Finding Specific Plan FEIR Inadequate For Failure To Adequately Analyze And Respond To Comments Regarding School Facilities-Related Impacts; Court Of Appeal Holds FEIR Was Adequate In All Respects And Was Not Required To Speculate Regarding Possible Environmental Impacts From Uncertain Future School District Decisions Made To Accommodate Increased Enrollment Should Funds Prove Unavailable To Construct New Schools Contemplated In Plan
By Matthew C. Henderson & Arthur F. Coon on
On August 10, 2023 the Sixth District Court of Appeal filed its published opinion in Santa Rita Union School District v. City of Salinas (2023) 94 Cal.App.5th 298. On September 7, 2023, it filed an Order slightly modifying its opinion without modifying the judgment and denying rehearing. The case concerns the certification of an EIR for the “West Area Specific Plan” in and by the City of Salinas, and claims by two school districts in the City that asserted perennial underfunding meant that the EIR failed to adequately address school-related impacts. While the trial court agreed in part, granting narrow writ relief enjoining future entitlements while leaving the specific plan approval in place, the Sixth District did not, holding that the districts’ expressed concerns were speculative in nature and need not have been evaluated in the EIR.Continue Reading Sixth District Reverses Judgment Finding Specific Plan FEIR Inadequate For Failure To Adequately Analyze And Respond To Comments Regarding School Facilities-Related Impacts; Court Of Appeal Holds FEIR Was Adequate In All Respects And Was Not Required To Speculate Regarding Possible Environmental Impacts From Uncertain Future School District Decisions Made To Accommodate Increased Enrollment Should Funds Prove Unavailable To Construct New Schools Contemplated In Plan
First District Holds Increased Enrollment-Related CEQA Challenges To UC Regents’ 2018 SEIR For Berkeley Campus Development And Minor LRDP Amendment Are Mooted By Superseding 2021 LRDP Update EIR And Passage Of SB 118
By Arthur F. Coon on
In an opinion filed April 27, and certified for partial publication on May 19, 2023, the First District Court of Appeal (Div. 1) vacated the trial court’s order granting a writ directing the University of California’s Regents (Regents) to decertify a 2018 Supplemental EIR (2018 SEIR) for a campus development project and to suspend increases in student enrollment pending CEQA compliance; it further directed the trial court to dismiss the petition, which it held was largely mooted by the Regents’ certification of a 2021 EIR and the passage of CEQA amendments via SB 118, events that combined to preclude the Court’s ability to grant effective relief. Save Berkeley’s Neighborhoods v. The Regents of the University of California, et al. (2023) 91 Cal.App.5th 872. Continue Reading First District Holds Increased Enrollment-Related CEQA Challenges To UC Regents’ 2018 SEIR For Berkeley Campus Development And Minor LRDP Amendment Are Mooted By Superseding 2021 LRDP Update EIR And Passage Of SB 118
Sixth District Holds Downtown San Jose Office Project FSEIR’s Brief Discussion And Rejection of “Compensatory” Mitigation for Historic Buildings Razed By Project Was Informationally Adequate Under CEQA Based On City’s Unchallenged Factual Finding That No Similar Historic Buildings Existed Elsewhere In City’s Downtown
In an opinion filed April 18, and belatedly ordered published on May 10, 2023, the Sixth District Court of Appeal upheld the City of San Jose’s (City) certification of a final Supplemental EIR (FSEIR) for development of three high-rise office towers (the “Project”) on an eight-acre downtown site containing several historic structures which the Project required to be demolished. Preservation Action Council of San Jose v. City of San Jose (SJ Cityview, LLC, Real Party in Interest) (2023) 91 Cal.App.5th 517. In affirming the trial court’s judgment denying Preservation Action Council of San Jose’s (Appellant) petition for writ of mandate, the Court rejected Appellant’s arguments that the FSEIR failed to adequately analyze and provide compensatory mitigation for the historic buildings and failed to adequately respond to comments on those issues.Continue Reading Sixth District Holds Downtown San Jose Office Project FSEIR’s Brief Discussion And Rejection of “Compensatory” Mitigation for Historic Buildings Razed By Project Was Informationally Adequate Under CEQA Based On City’s Unchallenged Factual Finding That No Similar Historic Buildings Existed Elsewhere In City’s Downtown
That Dam Case (Again): Third District Upholds Oroville Hydropower Facilities Relicensing EIR Against Numerous CEQA Challenges
On April 7, 2023, the Third District Court of Appeal filed a lengthy published opinion – the latest installment in one of the longer ongoing CEQA battles in recent memory – affirming a judgment finding an EIR for the Federal relicensing of Oroville Dam and related hydropower facilities legally adequate. County of Butte and County of Plumas, et al v. Dept. of Water Resources (2023) 90 Cal.App.5th 147.Continue Reading That Dam Case (Again): Third District Upholds Oroville Hydropower Facilities Relicensing EIR Against Numerous CEQA Challenges
A “Capitol” Offense: Third District Holds State Capitol Building Annex/Visitor Center Project EIR Violated CEQA Due To Inadequate Project Description And Analyses Of Historical Cultural Impacts, Aesthetics, And Project Alternatives
In a published opinion filed December 6, 2022, the Third District Court of Appeal reversed in part and affirmed in part the trial court’s judgment denying writ petitions in consolidated actions challenging the EIR for a major state government project affecting the Historic State Capitol Building and Annex in Sacramento. Save Our Capitol! v. Department of General Services (Joint Committee On Rules of the California State Senate and Assembly, Real Party in Interest)/Save the Capitol, Save the Trees v. Department of General Services, et al. (2022) 85 Cal.App.5th 1101. In the project’s final iteration, Defendant/Respondent Department of General Services and Real Party/Respondent Joint Committee, etc. (collectively, “DGS”) proposed to demolish the Historic Capitol’s 325,000 square-foot Annex, replace it with a larger 525,000 square-foot Annex building, construct a 40,000 square-foot underground visitor center attached to the Historic Capitol’s west side, and construct a 150-space underground parking garage east of the new Annex. While rejecting many of plaintiffs’ CEQA challenges to the project’s final EIR (FEIR), the Court of Appeal found merit in claims that the EIR’s project description, analyses of impacts to historical resources and aesthetics, and alternatives analysis were deficient. Accordingly, it directed issuance of a writ vacating the EIR certification and project approval and directing DGS to revise and recirculate the EIR’s deficient sections before again considering project approval. Continue Reading A “Capitol” Offense: Third District Holds State Capitol Building Annex/Visitor Center Project EIR Violated CEQA Due To Inadequate Project Description And Analyses Of Historical Cultural Impacts, Aesthetics, And Project Alternatives