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In a lengthy, partially published opinion filed November 21, 2017, the Fifth District Court of Appeal addressed four CEQA challenges asserted by plaintiffs and appellants (“AIR”) to the sufficiency of Kern County’s 2014 Final EIR for Real Parties’ (“Alon Energy”) project to modify an existing Bakersfield oil refinery.  Association of Irritated Residents v. Kern County Board of Supervisors, et al. (Alon USA Energy, Inc., et al., Real Parties in Interest) (2017) 17 Cal.App.5th 708.   The proposed modification would allow the refinery, which has existed and operated at the site through various ownerships since 1932, to unload two unit trains (104 cars) of crude oil (150,000 barrels) per day.  The trains would carry potentially more volatile crude oil (i.e., likely to explode in a rail accident) transported from the Bakken formation in North Dakota.  The refinery would process 70,000 barrels of crude oil per day, its currently authorized maximum level, and pipe the balance of the unloaded crude to other refineries to be processed.
Continue Reading Fifth District Holds Cap-And-Trade Program Compliance Supports Refinery Project EIR’s Conclusion That GHG Emissions Are Less Than Significant, Also Addresses Important CEQA Baseline and Railroad Operation Preemption Issues

When it comes to CEQA cases, some courts don’t seem to know when to stop beating a dead horse.  So it may be with the Fourth District Court of Appeal’s 43-page, published, 2-1 majority decision, accompanied by a 4-page dissent, filed on November 16, 2017, after remand from the California Supreme Court in Cleveland National Forest Foundation, et al. v. San Diego Association of Governments, et al. (4th Dist., Div. 1, 2017) 17 Cal.App.5th 413.  My previous blog post on the Supreme Court’s disappointingly narrow opinion, which decided only the issue whether SANDAG’s 2011 EIR for its Regional Transportation Plan/Sustainable Community Strategy (RTP/SCS) violated CEQA by not explicitly engaging in an analysis of consistency of projected 2050 GHG emissions with a 2005 executive order (holding it didn’t), can be found here.

The Court of Appeal’s previous published decision, of course, reached that narrow GHG analysis issue and a lot more – it held SANDAG’s EIR was deficient in literally all respects argued by plaintiffs and intervenor/appellant the People, i.e., failure to analyze consistency with the 2005 Executive Order; failure to adequately address GHG mitigation; failure to analyze a reasonable range of project alternatives; failure to adequately analyze and mitigate air quality and particulate matter pollution impacts; and understating agricultural land impacts.  In supplemental briefing following the Supreme Court’s remand, Cleveland and the People requested the Court to issue a revised published opinion essentially the same as Cleveland I, albeit slightly revised to acknowledge the Supreme Court’s partial reversal.Continue Reading SANDAG RTP/SCS EIR Redux: Is Fourth District’s Published Opinion on Remand Constructive CEQA Compliance Lesson or Moot Exercise?

In a published opinion filed November 15, 2017, the First District Court of Appeal (Division 5) affirmed the trial court’s order granting a petition for writ of mandate setting aside the California Department of Parks and Recreation’s (Department) approvals and EIR for the “Upper Truckee River Restoration and Golf Course Reconfiguration Project” (the “Project”).  Washoe Meadows Community v. Department of Parks and Recreation (1st Dist. 2017) 17 Cal.App.5th 277.  The Court agreed with the trial court’s determination that “the DEIR’s failure to provide the public with an accurate, stable and finite” project description “prejudicially impaired the public’s ability to participate in the CEQA process by setting forth a range of five very different alternatives and by declining to identify a preferred alternative.”

As relevant background, the project involved 777 acres of state-owned land encompassing a 2.2-mile stretch of the Upper Truckee River in the Lake Tahoe Basin.  The land was divided into two units: 608 acres of state park land (Washoe Meadows State Park), and the remainder designated as Lake Valley State Recreation Area to allow continuing operation of an existing golf course (a use not allowed in state parks).  Since at least the 1990s, the golf course layout had altered the river’s course and flow, raising environmental concerns of river bed erosion that threatened habitat and water quality in and around Lake Tahoe through deposition of substantial sediment.Continue Reading Power to the Public: DEIR’s Failure to Identify Proposed Project Among Handful of Vastly Different Analyzed Alternatives Violates CEQA’s Requirement to Contain “Accurate, Stable and Finite” Project Description, Vitiates Intelligent Public Participation, Holds First District

In 15-page opinion filed on September 15, and later certified for publication on October 16, 2017, the First District Court of Appeal affirmed the trial court’s judgment denying a writ petition challenging the Judicial Council of California’s (“Judicial Council”) EIR for its project to relocate and consolidate El Dorado County Superior Court operations into a single new building on the outskirts of Placerville.  Placerville Historic Preservation League v. Judicial Council of California (County of El Dorado, et al., Real Parties In Interest) (2017) 16 Cal.App.5th 187.  The Court of Appeal held that substantial evidence supported the EIR’s conclusion that “the possible economic impact of moving judicial activities from the downtown courthouse … was not likely to be severe enough to cause urban decay in downtown Placerville.”  It also held that the Council did not need to adopt mitigation mandating re-use of the courthouse to support this conclusion.
Continue Reading Keeping CEQA In Its Lane: First District Holds Substantial Evidence Supports EIR’s Conclusion That “Urban Decay” Is Not Reasonably Foreseeable Indirect Effect Of Project Relocating Trial Court Operations From Historic Placerville Courthouse

While “agree[ing] with appellant that Telegraph Hill is outstanding and unique in a city of outstanding and unique places[,]” the First District Court of Appeal nonetheless affirmed the trial court’s order denying plaintiff/appellant neighborhood group’s mandamus petition challenging the City of San Francisco’s approval of a 3-unit condominium project there on CEQA and general plan consistency grounds.  Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261.  In a 15-page opinion originally filed September 14, but belatedly ordered published on October 13, 2017, the Court upheld the City’s findings that the project, which involved renovation of an existing deteriorated small cottage and construction of a new 3-dwelling unit residential structure, was categorically exempt from CEQA and consistent with the City’s general plan and planning code.
Continue Reading Unique, But Not Unusual: First District Affirms CEQA Exemptions and General Plan Consistency Finding For Three-Unit Infill Condo Project on San Francisco’s Telegraph Hill

In a published opinion filed September 28, 2017, the First District Court of Appeal affirmed the Alameda County Superior Court’s judgment denying appellant Living Rivers Council’s (LRC) writ petition challenging the State Water Resources Control Board’s (the “SWRCB” or “Board”) approval of a policy designed to maintain instream flows in coastal streams north of San Francisco.  Living Rivers Council v. State Water Resources Control Board (1st Dist., Div. 5, 2017) 15 Cal.App.5th 991.  The Court of Appeal upheld the SWRCB’s Revised Substitute Environmental Document (RSED) against LRC’s CEQA challenges, which related to the RSED’s analysis of potential indirect environmental effects of surface water users switching to groundwater pumping as a result of the policy.

As relevant legal background, the SWRCB administers the State’s water resources and has permitting authority over diversions from surface waters and subterraneous streams that flow through known and definite channels, but it lacks permitting authority over percolating groundwater.  It has authority to prevent unreasonable or wasteful water use regardless of source.  Legislation enacted in 2004 (Wat. Code, § 1259.4) requires the SWRCB to adopt principles and guidelines for maintaining instream flows of Northern California coastal streams.Continue Reading First District Rejects CEQA Challenges to SWRCB’s Revised Environmental Document and Approval of Northern California Coastal Stream Policy

When a lead agency finds a project approval to be categorically exempt from CEQA, this determination at the initial step of CEQA’s multi-tiered process necessarily includes an implied finding that no exceptions to the categorical exemption are applicable.  A party challenging an agency’s categorical exemption determination on the basis that the “unusual circumstances” exception applies generally has the burden to show both (1) unusual circumstances (i.e., the project has some feature distinguishing it from others in the exempt class, such as size or location), and (2) “a reasonable possibility of a significant effect [on the environment] due to [those] unusual circumstance[s].”  (Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1105, 1115.)

But how does a court review an “unusual circumstances” challenge to a categorical exemption where the agency has made no express findings on these elements and must thus rely on implied findings to uphold its determination?  In a published opinion filed September 18, 2017, the First District Court of Appeal answered this important question in the course of affirming a judgment denying a writ petition that challenged the City of South San Francisco’s (City) conditional-use permit (CUP) for conversion of an office building to a Planned Parenthood medical clinic.  Respect Life South San Francisco v. City of South San Francisco (Planned Parenthood Mar Monte, Inc., Real Party In Interest) (1st Dist., Div. 1, 2017) 15 Cal.App.5th 449.  While the City’s categorical exemption in this case was upheld based on an implied finding, the opinion’s most important takeaway for local agencies (and project proponents) is that reliance on such a finding presents far more litigation risk than if appropriate express findings are made.Continue Reading First District Upholds CEQA Categorical Exemption for Approval of Planned Parenthood Clinic in City of South San Francisco, Clarifies Implied Finding of No Exceptions is Analyzed for Record Support on Narrowest Possible Ground

In an opinion originally filed on July 31, and belatedly ordered partially published on August 24, 2017, the Sixth District Court of Appeal affirmed the trial court’s judgment denying a writ petition brought by a citizens group (Highway 68) on CEQA and Planning and Zoning Law grounds, and upheld the Monterey County Board of Supervisors’ 2012 approval of a shopping center project.  The Highway 68 Coalition v. County of Monterey, et al. (Omni Resources LLC, Real Party in Interest) (6th Dist. 2017)  14 Cal.App.5th 883.

In relevant (published) part, the Court upheld the trial court’s interlocutory remand to the County’s Board of Supervisors to clarify or make further findings required to demonstrate the project’s consistency with certain provisions of County’s General Plan requiring express, evidence-supported findings that the project has “a long-term sustainable water supply”; in so doing it rejected arguments that this procedure violated CEQA’s remedies statute (Public Resources Code, § 21168.9), which generally prescribes writ relief for CEQA violations.  (The much lengthier, unpublished portion of the Court’s opinion, which will not be addressed in detail in this post, rejected Highway 68’s remaining non-general plan CEQA arguments alleging:  violations of due process in the remand proceedings; CEQA violations in the EIR’s analysis of the Project’s water rights, and water balance, demand and recharge scheme, groundwater/soil contamination, and traffic analysis methodology; and violation of CEQA’s prohibition on “segmentation” or “piecemealing” of environmental review.)Continue Reading Sixth District Holds Project’s Consistency with General Plan Is Not a CEQA Issue, Upholds Trial Court’s Interlocutory Remand for County Board to Clarify Consistency Findings, and Affirms Judgment Denying Writ Petition Alleging General Plan and CEQA Challenges to Shopping Center Project

In a published decision filed August 8, 2017, the Fourth District Court of Appeal affirmed the trial Court’s judgment dismissing a CEQA action brought by two individuals (“Appellants”) against the Mt. San Jacinto Community College District (“District”).  Bridges v. Mt. San Jacinto Community College District (Riverside County Regional Park & Open- Space District, Real Party in Interest) (4th Dist. 2017) 14 Cal.App.5th 104.  Appellants challenged the District’s entry into a purchase agreement to buy from a regional park district a plot of vacant land for potential future use as a new campus, alleging this action violated CEQA because the District had not yet prepared an EIR for the potential new campus project.  (The District was in the process of preparing an EIR, during the pendency of other litigation over an earlier option agreement on the property, but it “paused” that process due to the other litigation while determining it would complete the EIR before entering into escrow on the property.)  Appellants also claimed the District violated CEQA by failing to adopt local CEQA implementing guidelines.

The Court of Appeal held Appellants failed to exhaust their administrative remedies prior to filing suit or to demonstrate any excuse for not doing so; alternatively, it held that their claims lacked substantive merit.Continue Reading Fourth District Rejects CEQA Challenge to College District’s Entry into Land Acquisition Agreement Prior to Preparing EIR Due to Plaintiffs’ Failure to Exhaust and Based on Merits

On July 13, 2017, the California Supreme Court rendered a 6-1 decision holding that the San Diego Association of Governments’ (SANDAG) 2011 EIR for its Regional Transportation Plan/Sustainable Communities Strategy (RTP/SCS) issued pursuant to SB 375 did not violate CEQA “by declining to explicitly engage in an analysis of the consistency of projected 2050 greenhouse gas emissions with the goals in [a 2005] executive order [the “2005 EO”].” (Cleveland National Forest Foundation, et al v. San Diego Association of Governments (2017) 3 Cal. 5th 497, Supreme Court Case No. 5223603.) This conclusion is not surprising, and it is undoubtedly correct. But it is disappointing that the majority’s opinion lacks significant practical or legal guidance for conducting CEQA-compliant GHG analysis for long term regional plans.

Maybe I expect too much. Maybe the nature of the opinion is just a result of the narrowly-framed issue on which the Court chose to grant review. Maybe the interrelationship between CEQA and SB 375 is so complex that hope for greater clarity and simplicity in this area is unrealistic. Perhaps, by its very nature, CEQA is inherently ill-suited to “analyzing” the global-scale environmental impacts of GHG emissions on a project-by-project basis. Or perhaps the case’s narrow holding flows from the strong flavor of mootness that permeates it. In this last vein, it seems somewhat odd for our Supreme Court to decide the legal validity of one discrete aspect of SANDAG’s 2011 EIR despite the facts that (1) the 2011 RTP/SCS which that EIR analyzed has now long been superseded by an updated 2015 RTP/SCS (“San Diego Forward: The Regional Plan”); (2) SANDAG did conduct a 2005 EO consistency analysis in connection with the updated plan; and (3) no one has challenged the updated plan or its EIR.Continue Reading Supreme Disappointment: High Court’s Narrow Opinion In SANDAG RTP/SCS EIR Case Offers Little Guidance On CEQA GHG Analysis