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In two opinions filed May 10, 2016 (one partially and the other fully published), the Fourth District Court of Appeal rejected a number of CEQA and other challenges to a project proposing to pump 50,000 acre-feet of groundwater per year for a 50-year period from a Mojave Desert aquifer in the County of San Bernardino (“Project”).  The Project – proposed by a “public-private partnership” between lead agency Santa Margarita Water District (“SMWG”) and the overlying landowner, Cadiz, Inc. (“Cadiz”) – seeks to beneficially use and prevent the loss of groundwater, some portion of which would otherwise drain to two dry lakes where it would evaporate or become unpotable brine.  The fresh water pumped from the aquifer would be conveyed through 43 miles of underground pipeline to the Colorado River Aqueduct, which would then transport it to supply a number of Southern California Water agencies and users.
Continue Reading Fourth District Rejects CEQA Challenges To Large Mojave Desert Groundwater Pumping Project In Separate Published Opinions

The California Supreme Court held a lively oral argument session this morning (May 4, 2016), at 9:00 a.m. in its San Francisco courtroom in the case of Friends of the College of San Mateo Gardens v. San Mateo Community College District (Case No. S214061), which was live streamed for “real time” viewing on the Court’s website.  This post attempts to convey a general sense of the Court’s questioning and counsel’s argument in the hour-long session; any mistakes in “translation” are mine, and I apologize for any such errors in advance.  (For my prior post briefly describing the case’s facts, legal issues and significance, see “Supreme Court Set to Hear Important CEQA Subsequent Review Case,” by Arthur F. Coon, posted April 26, 2016.)
Continue Reading “Hot Bench” For Advocates In Supreme Court CEQA Subsequent Review Case

In a March 4, 2016 published opinion, the Fourth District Court of Appeal reversed the trial court’s judgment requiring an EIR for a small 12-home rural subdivision project based on the “psychological and social” impacts of the proponent’s related closure of a public horse boarding facility (the “Stock Farm”) which he had operated pursuant to a CUP for 20 years on the 11.6-acre property.  Preserve Poway v. City of Poway (Harry A. Rogers, et al., Real Parties in Interest) (2016) 245 Cal.App.4th 560, 2016 WL 891405.  In addition to its primary holding that psychological, social and economic impacts are not cognizable under CEQA, the Court rendered a few other interesting rulings, including its application of the Supreme Court’s recent “CEQA-in-reverse” decision (California Building Industry Ass. v. Bay Area Air Quality Management Dist. (2015) 62 Cal.4th 369 (“CBIA”)) in holding that asserted impacts of an existing equestrian events facility (located across the street from the project) on future project residents were also beyond CEQA’s scope.
Continue Reading Horse Of A Different Color: CEQA Does Not Require EIR Due To Psychological And Social Impacts From Closure Of Beloved Equestrian Boarding Facility In Small “Country” City

With the February 13 passing of U.S. Supreme Court Associate Justice Antonin Scalia, American jurisprudence lost an intellectual giant. But Justice Scalia will not be forgotten; the legacy of his life’s work lives on.

While much has been and will be written about his landmark opinions and the originalist and textualist methods of constitutional and statutory interpretation he brought to bear in them, Justice Scalia’s significant legal contributions to CEQA, land use and environmental law merit special recognition.Continue Reading Justice Scalia’s Enduring CEQA and Land Use Law Legacy

CEQA and land use law in California go together like a hand in a glove. Due to CEQA’s broad scope and exacting substantive and procedural requirements, it is relatively easy to plead a cause of action for CEQA violations in most instances where land use approvals or entitlements for a development project are challenged.  CEQA claims thus play a prominent, and often leading, role as petitioners’ litigation “weapon of choice” in most such land use disputes.
Continue Reading When CEQA Violations Are An Afterthought: Fourth District Upholds Trial Court’s Independent Judgment Determination That City Of Anaheim Is Equitably Estopped To Unilaterally Modify Resort Hotel CUP Conditions

In a lengthy opinion filed December 2, 2015, and belatedly ordered published on January 4, 2016, the Third District Court of Appeal invalidated the California Department of Food and Agriculture’s (CDFA) programmatic EIR for a seven-year program to eradicate an invasive pest – an Australian native insect known as the light brown apple moth (LBAM) – that threatens California’s native plants and agricultural crops. North Coast Rivers Alliance, et al. v. A.G. Kawamura/Our Children’s Earth Foundation, et al. v. California Department of Food and Agriculture (2015) 243 Cal.App.4th 647. It reversed the trial court’s judgments denying appellants’ mandate petitions and remanded with directions to grant them.
Continue Reading CDFA Program EIR Violates CEQA By Failing To Analyze Invasive Moth Control Program As Alternative To Eradication, Holds Third District

A new year often brings fresh perspective.  With 2016 still in its infancy, it is natural to reflect back on what has been and also to contemplate what is yet to come.  The California Supreme Court’s recent CEQA decisions, and its current docket of CEQA cases awaiting decision, provide ample opportunity for both of these basic human impulses.
Continue Reading Supreme Engagement: CEQA’s Continuing Saga In California’s High Court

In a unanimous 24-page opinion authored by newly seated Justice Cuellar and filed December 17, 2015, the California Supreme Court resolved a fundamental issue regarding CEQA’s scope, holding that – with certain specific statutory exceptions – it does not compel what many practitioners have referred to as a “CEQA-in-reverse” analysis. California Building Industry Association v. Bay Area Air Quality Management District (2015) 62 Cal.4th 369, Case No. S213478.
Continue Reading California Supreme Court Holds “CEQA-In-Reverse” Is Not The Norm, Reverses And Remands First District’s Judgment In CBIA v. BAAQMD

In a 5-2 decision filed November 30, 2015, the California Supreme Court reversed the judgment of the Court of Appeal which had upheld the EIS/EIR for the controversial Newhall Ranch development project. Center For Biological Diversity, et al. v. California Department of Fish and Wildlife (The Newhall Land and Farming Company, Real Party in Interest) (2015) 62 Cal.4th 204. The high court approved the EIS/EIR’s methodology analyzing the significance of the project’s greenhouse gas (GHG) emissions in terms of reductions from projected “business as usual” (BAU) emissions consistent with AB 32’s statewide reductions mandate, rather than against some absolute numeric limit above the project site’s “baseline” emissions. However, it held the GHG analysis lacked supporting substantial evidence and a cogent explanation correlating the project-specific reductions to AB 32’s mandated state-wide reductions so as to demonstrate consistency with the latter’s goals under the approved methodology. The Court further held the EIS/EIR violated Fish & Game Code § 5515’s prohibition on the taking of “fully protected” fish species by including mitigation measures providing for the collection and relocation by USFWS of the unarmored threespine stickleback. Finally, the Court held – under the particular factual circumstances of the case – that certain issues raised by plaintiffs during an optional public comment period on the Final EIS/EIR were timely raised so as to sufficiently exhaust administrative remedies under Public Resources Code § 21177(a).
Continue Reading Lost in Translation: Supreme Court Elucidates CEQA GHG Analysis, “Fully Protected” Species Take Prohibition, And Issue Exhaustion In Decision Finding Newhall Ranch Development EIR Flawed

In the Spring of last year, I posted an analysis of what I called the Third District Court of Appeal’s “exceptionally thorough and well-reasoned opinion” in Citizens for Environmental Responsibility v. State of California ex rel 14th District Agricultural Association (3d Dist. 2014) 224 Cal.App.4th 152, rev. gtd. and action deferred 7/9/14. (See, “Third District Construes CEQA Guidelines’ Class 23 Categorical Exemption And “Unusual Circumstances” Exception In Rejecting Challenge To Watsonville Rodeo Event”, by Arthur F. Coon, posted April 7, 2014.) In concluding that post, I noted that the Third District’s position on application of the “unusual circumstances” exception to categorical exemptions was “very clear” and “also diametrically opposed to that taken by the First District in a case in which the California Supreme Court has granted review, and which [had at that time] been pending for almost two years in that Court, Berkeley Hillside Preservation et al. v. City of Berkeley, et al., Case No. S20116.”
Continue Reading Not Its First CEQA Rodeo: Third District Again Upholds Class 23 Categorical Exemption For 2011 Watsonville Rodeo Event On Remand From Supreme Court