Responsible and Trustee Agencies

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On September 7, 2023, Governor Newsom signed into law AB 1307, urgency legislation which took effect immediately and added to the Public Resources Code a new Section 21085, which reads: “For purposes of this division, for residential projects, the effects of noise generated by project occupants and their guests on human beings is not a significant effect on the environment.”Continue Reading Recent Legislation Brings Incremental CEQA Reform

In late April the Bay Area Air Quality Management District (“BAAQMD”) promulgated its revised 2022 CEQA Guidelines (“2022 Guidelines”), available here.  Previously BAAQMD had published guidelines in 2012, which were the subject of litigation culminating in the California Supreme Court’s decision in California Building Industry Assn. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369, an important case delineating the scope of CEQA in which we represented several amici curiae and which we blogged about here.Continue Reading BAAQMD Adopts Ambitious Revised 2022 CEQA Guidelines

On May 12, 2022, the First District Court of Appeal filed a 108-page published opinion affirming a judgment denying a CEQA writ petition that challenged Marin County’s approval of a 43-lot single-family residential subdivision on a 110-acre parcel atop a mountain overlooking the Town of Tiburon and San Francisco Bay.  Tiburon Open Space Committee v. County of Marin (The Martha Company, Real Party in Interest, and Town of Tiburon, Intervenor and Appellant) (2022) 78 Cal.App.5th 700.  Apart from its factual background of nearly a half-century of intense legal battles over (and effectively blocking) the property’s development – which the Court described as “this woeful record before us” – the decision is notable for its legal analysis of how CEQA applies when a lead agency’s discretion in considering a project for approval is constrained by legal obligations.  While in this case the legal obligations stemmed from stipulated federal court judgments mandating that the County approve a minimum level of development on the property, the Court’s reasoning and holdings that the scope of CEQA adjusts and is limited commensurate with legal limitations on an agency’s discretionary authority will clearly apply to other contexts.  Most obviously, and topically, they plainly will apply to housing development projects when state housing laws impose legal obligations that limit local agencies’ legal authority to disapprove or reduce the density of those projects.  (See, e.g., Gov. Code, § 65589.5 (the “Housing Accountability Act”).)
Continue Reading “This Woeful Record”: First District Affirms Judgment Rejecting CEQA Challenges To Marin County’s Approval of 43-Home Mountaintop Subdivision Opposed For Nearly Five Decades By Neighbors And Town of Tiburon

In an opinion filed on April 12, and later ordered published on May 11, 2022, the Third District Court of Appeal reversed a judgment that had denied a CEQA writ petition challenging the City of Mount Shasta’s issuance of a wastewater permit for the Crystal Geyser Water Company’s bottling plant project.  We Advocate Through Environmental Review, et al v. City of Mount Shasta, et al (Crystal Geyser Water Company, Real Party in Interest) (2022) 78 Cal.App.5th 629.
Continue Reading Responsible Agency Committed Fundamental CEQA Procedural Violation By Not Making Public Resources Code Section 21081 Findings for Significant Effects Associated With Its Wastewater Permit For Water Bottling Plant Project

In a sprawling, 123-page published opinion filed on February 14, 2022, the Third District Court of Appeal affirmed in part, and reversed in part, judgments in consolidated CEQA actions challenging Placer County’s EIR for its approval of a specific plan and rezoning to permit residential and commercial development and preserve forest land in the Martis Valley near Truckee and Lake Tahoe.  League to Save Lake Tahoe, Mountain Area Preservation, et al./California Clean Energy Committee v. County of Placer, et al. (Sierra Pacific Industries, et al., Real Parties in Interest) (2022) 75 Cal.App.5th 63.  Consistent with its impressive length, the opinion decides a number of significant issues, and contains a thorough exposition of established CEQA rules and principles, including, but not limited to, those governing:  applicable standards of review; baseline/environmental setting description; lead agency discretion regarding thresholds of significance, methodology for impact study, and significance determinations; cumulative impacts (including GHG) analysis; and requirements for adequate mitigation measures.
Continue Reading Third District Addresses Significant CEQA Issues In Mixed Decision On Placer County’s EIR For Specific Plan/Rezoning Allowing Development of Martis Valley Timberlands

In an opinion filed November 15, and later ordered published on December 14, 2021, the Sixth District Court of Appeal reaffirmed the basic CEQA principle that required environmental review and analysis must precede project approval, and it applied that principle to invalidate the California Coastal Commission’s (Commission) approval of a Coastal Development Permit (CDP) for a residential subdivision project in Monterey County. Friends, Artists and Neighbors of Elkhorn Slough v. California Coastal Commission (Heritage/Western Communities, Ltd., et al., Real Parties in Interest) (2021) 72 Cal.App.5th 666. While the dispositive rule is a simple one, the case’s more complex facts and procedural history make it interesting – and somewhat disturbing – on a number of levels.
Continue Reading Sixth District Holds Coastal Commission’s Post-Approval Analysis of Coastal Development Permit’s Environmental Impacts Violates CEQA

Assembly Bill No. 819 (AB 819), was signed by the Governor and filed with the Secretary of State on July 16, 2021, and as non-urgency legislation will become effective on January 1, 2022.  The bill amends nine statutory sections that are part of CEQA, and it affects requirements for lead agencies submitting CEQA documents and notices to OPR’s State Clearinghouse and to County Clerks for filing, and also requirements for the posting of certain notices.  Highlights of the new AB 819 legislation include:
Continue Reading AB 819 Revises Statutory Procedures For Submitting Lead Agency CEQA Documents And Notices To OPR’s State Clearinghouse, Expands Requirements/ Options For Electronic Posting Of Notices By Lead Agencies And County Clerks

In a lengthy opinion filed April 8, and ordered published on May 7, 2021, the Third District Court of Appeal affirmed a judgment rejecting a number of CEQA challenges to the California State Land Commission’s (Lands Commission) supplemental EIR for and related approval of a lease modification to facilitate a desalination plant in Huntington Beach.  California Coastkeeper Alliance v. State Lands Commission (Poseidon Resources (Surfside) LLC, Real Party in Interest) (2021) 64 Cal.App.5th 36.  In holding that the Commission properly elected to prepare a supplemental (rather than subsequent) EIR, did not err in refusing to assume lead agency status, and did not unlawfully piecemeal environmental review, the Court provided guidance on a number of significant CEQA issues.
Continue Reading Third District Affirms Judgment Upholding State Lands Commission’s Supplemental EIR For Desalination Plant Lease Modification, Rejects CEQA Claims That Commission Piecemealed Review And Should Have Assumed Lead Agency Status And Prepared A Subsequent EIR

“The more I know, the less I understand/All the things I thought I’d figured out, I have to learn again” – Don Henley, “The Heart of the Matter”

One of CEQA’s bedrock principles is that environmental review must precede project approval.  (E.g., POET, LLC v. California Air Resources Board (2013) 217 Cal.App.4th 1214; CEQA Guidelines, § 15004(a).)  To reverse the order and “put the cart before the horse” would be anathema, i.e., to sanction uninformed and undemocratic lead agency decision making, and to encourage irretrievable commitments of resources and post-hoc rationalizations that foreclose mitigations and alternatives and sweep environmental considerations under the rug.  Right?  Well …  maybe not.  In the area of State Water Resources Control Board (“SWRCB” or the “State Board”) water quality certifications (“WQCs”) under the Federal Clean Water Act (“CWA”; 33 U.S.C § 1251 et seq), this bedrock principle appears to have been watered down, and it may be significantly eroding under pressure from a preemptive federal law deadline.Continue Reading Must CEQA Compliance Precede Project Approval? When State Water Board Water Quality Certifications Are Involved, The Answer Is As “Clear as Mud”

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