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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

On May 2, 2017, the Fifth District Court of Appeal vacated its earlier order and writ, and on May 5 it granted Respondents’ request for rehearing in the CEQA litigation entitled Poet, LLC v. State Air Resources Board, et al. (“POET II”) (5th Dist. 2017) 12 Cal.App.5th 52, Case No. F073340.  Upon granting various requests for judicial notice of the parties, the Court resubmitted the cause without further briefing on May 24, and issued its modified published opinion (with no change in the result) on May 30, 2017.
Continue Reading Fifth District Grants Rehearing, Vacates Prior Published Opinion, and Issues Slightly Modified Published Opinion in POET II CEQA Litigation

In a 38-page opinion filed May 4, and belatedly ordered published on May 25, 2017, the Fifth District Court of Appeal reversed a judgment dismissing a writ petition filed by three environmental groups alleging CEQA violations against the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (DOGGR) in connection with its issuance of 214 individual permits for new oil wells in the long-established South Belridge Oil Field in Kern County.  Association of Irritated Residents, et al. v. Department of Conservation (Aera Energy, LLC, Real Party in Interest) (5th Dist. 2017) 11 Cal.App.5th 1202 (Case No. F073018).  The Court reversed the Kern County Superior Court’s judgment dismissing the action after that court sustained a demurrer without leave to amend based on the asserted res judicata effect on an earlier Alameda County Superior Court judgment.  The Court of Appeal held that the Alameda judgment was based on mootness and ripeness grounds, not the merits, and thus did not have res judicata effect so as to bar the Kern County action.  The opinion contains extensive discussions of res judicata, collateral estoppel, mootness, ripeness and the application of these legal doctrines to the facts and issues of the case before it.
Continue Reading Fifth District Holds CEQA Action Challenging Individual DOGGR Oil Well Permits Not Barred By Res Judicata Based On Prior Judgment Rendered On Mootness/Ripeness Grounds

In a short opinion filed May 17, 2017, and belatedly ordered published (for unknown reasons) just six days later, the Fourth District Court of Appeal reversed the trial court’s judgment granting a writ of mandate that set aside the City of San Diego’s denial (on administrative appeal) of a small residential subdivision project in its low density La Playa neighborhood. Kutzke v. City of San Diego (4th Dist., Div. 1, 2017) 11 Cal.App.5th 1034. The Court of Appeal applied well established law in holding that if any substantial evidence in the record supports a City’s finding which requires denial of a subdivision, or that a related mitigated Negative Declaration (MND) is inadequate under CEQA, the City’s decision denying the Project must be upheld. Simply put, Courts may not substitute their judgment for a City’s on such matters or weigh competing substantial evidence, but instead must defer to and uphold the City’s decision unless no reasonable person could have reached the same conclusion.

Continue Reading Fourth District Holds Substantial Evidence Supports City of San Diego’s Rejection of MND and Denial of Minor Residential Subdivision In Low Density La Playa Neighborhood

When all was said and done, it was a case of “same wine, different bottle” for Defendant and Appellant San Mateo Community College District (“District”) after the First District Court of Appeal’s published May 5, 2017 decision, following remand from the California Supreme Court, in Friends of the College of San Mateo Gardens v. San Mateo Community College District, et al. (1st Dist., Div. 1, 2017) 11 Cal.App.5th 596.  While the District’s project changes to demolish its San Mateo College Building 20 complex, which was formerly slated for renovation, were held not to result in an “entirely new” project for CEQA review purposes because the original MND retained informational relevance, the District’s Addendum to that MND was again held by the Court of Appeal to constitute an inadequate environmental review document for the modified project under CEQA “because there is substantial evidence to support a fair argument that the project changes might have a significant effect on the environment.”

As this is my seventh blog post on this important litigation, I won’t reiterate the case’s facts.  My post on the Supreme Court’s opinion ((2016) 1 Cal.5th 937) can be found here.  The facts and other relevant information concerning the case can be found in my posts dated July 8, May 12, May 4 and April 26, 2016, and March 25, 2014.Continue Reading No Surprises Here: First District Applies CEQA Subsequent Review Standards Mandated by Supreme Court on Remand, Again Affirms Judgment for Petitioner in Friends of the College of San Mateo Gardens Litigation

On April 21, 2017, the First District Court of Appeal filed a 22-page published opinion providing significant guidance and analysis concerning the critical, but sometimes elusive, distinction between “discretionary” project approvals that are subject to CEQA and “ministerial” ones that are exempt from it.  Sierra Club, et al. v. County of Sonoma (Ronald and Ernest Ohlson, dba Ohlson Ranch, Real Parties in Interest) (1st Dist., Div. 1, 2017) 11 Cal.App.5th 11. (As a matter of disclosure, I represent the real parties, the Ohlsons, in this action.)
Continue Reading First District Holds Sonoma County Vineyard Development (VESCO) Permit was Ministerial Approval Exempt from CEQA

In a detailed 66-page published opinion filed April 10, 2017, the Fifth District Court of Appeal reversed the trial court’s order discharging a writ of mandate that was issued to compel the California Air Resources Board (“CARB”) to correct CEQA violations in connection with its 2009 adoption of low carbon fuel standards (“LCFS”) regulations.  POET, LLC v. State Air Resources Board (National Resources Defense Council, Inc., Intervenor and Respondent) (2017) 10 Cal.App.5th 764, Case No. F073340  (“POET II”).  The CEQA violations resulting in the writ were discussed in the Court of Appeal’s earlier published opinion, POET, LLC. V. State Air Resources Bd. (2013) 218 Cal.App.4th 68 (“POET I”), which was summarized in my blog post here.
Continue Reading CARB Violated CEQA and Writ in LCFS Litigation, Holds Fifth District, While Leaving New 2015 Regs in Effect

Like the fable of the blind men and the elephant, CEQA’s prohibition on “piecemealing” of environmental review is animated by a basic recognition that the “whole” of an action under review is greater than its individual parts viewed separately.  (The same important insight also underlies CEQA’s requirement to analyze a project’s cumulative impacts.)  But CEQA’s expansive and rather amorphous definition of what constitutes a “project” ensures that its piecemealing rule shares another similarity with the famous fable:  what conduct constitutes improper piecemealing often appears to be in the “eye of the beholder” and individual perceptions can differ greatly based on more-or-less subjective factors.  Appellate courts have long wrestled with application of the relevant legal principles, which essentially attempt to prohibit a lead agency’s “chopping up” of a project into smaller components so that it can turn a “blind eye” to reasonably foreseeable environmental impacts of the “whole” action.

On March 30, 2017, the Sixth District Court of Appeal issued a published opinion that rejected piecemealing and other CEQA challenges raised by the plaintiff/appellant group Aptos Council to several zoning ordinance amendments separately adopted and reviewed for CEQA purposes by the County of Santa Cruz; the enactments addressed discrete topics, but were all initiated by County as part of its general “regulatory reform” effort to “modernize, clarify, streamline and/or provide [clear] standards” for its land use regulations.  Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266.Continue Reading Sixth District Rejects “Piecemealing” and Other CEQA Challenges to Ordinances Enacted Pursuant to Santa Cruz County’s Zoning Modernization Effort

In a unanimous 29-page opinion authored by Associate Justice Carol Corrigan, and filed on March 30, 2017, the California Supreme Court held the City of Newport Beach’s EIR for a large mixed-use development project proposed on a 400-acre coastal zone site failed to comply with CEQA.  Banning Ranch Conservancy v. City of Newport Beach (Newport Banning Ranch LLC, et al., Real Parties in Interest) (2017) 2 Cal.5th 918.  The EIR improperly failed to identify areas of the site that might qualify as “environmentally sensitive habitat areas” (ESHA) – unique areas receiving special legal protections under the California Coastal Act – and take such areas into consideration in its analysis of project alternatives and mitigation measures.  In light of its reversal of the Court of Appeal’s judgment upholding the EIR and project approvals on CEQA grounds, the high court stated it did not need to reach plaintiff and appellant’s independent claim that the City also violated a general plan “strategy” requiring it to “[w]ork with appropriate state and federal agencies to identify wetlands and habitats to be preserved and/or restored and those on which development will be permitted.”
Continue Reading California Supreme Court Holds Banning Ranch EIR Violates CEQA by Failing to Identify and Analyze Coastal Zone Project’s Impacts on Potential Environmentally Sensitive Habitat Areas (ESHA); Declines to Reach General Plan Issues