On September 9, 2015, the California Supreme Court denied review and decertified the Fourth District Court of Appeal’s previously published opinion in Albert Thomas Paulek v. Western Riverside Regional Conservation Authority, which had appeared at 238 Cal.App.4th 583. A discussion of the issues presented by the case and my analyses of the Court of Appeal’s reasoning on them can be found in my post on the originally published opinion. (See “Fourth District Holds Agency’s Removal of Conservation Designation From Land Formerly Protected Under MSHCP Is ‘Project’ Subject to CEQA; Class 7 and 8 Categorical Exemptions for Environmentally Protective Regulatory Actions Do Not Apply,” by Arthur F. Coon, posted July 2, 2015.)

The Supreme Court’s depublication order means that while the decision remains binding on the parties to the case, it will not be citable as precedential authority under California law.


Continue Reading Supreme Court Depublishes Lengthy CEQA Categorical Exemption Case

In a published decision filed September 17, 2015, the First District Court of Appeal affirmed the trial court’s judgment granting a writ of mandate and finding that a proposed land exchange agreement was not statutorily exempt from CEQA review. Defend Our Waterfront v. California State Lands Commission, et al (San Francisco Waterfront Partners II, LLC, et al) (1st Dist., Div. 4, 2015) 240 Cal.App.4th 570. The underlying facts are straightforward, as is the Court’s holding interpreting CEQA’s statutory exemption that applies to “settlements of title and boundary problems by the State Lands Commission and to exchanges or leases in connection with those settlements.” (Pub. Resources Code, § 21080.11.) Perhaps more interesting, however, is the Court’s treatment (partly in dicta) of CEQA’s statutory standing and exhaustion requirements as embodied in Public Resources Code § 21177.
Continue Reading First District Applies CEQA Exhaustion/Standing Rules, Upholds Judgment Rejecting Claim of Statutory Exemption for Controversial State Lands Commission Land Exchange Agreement

A 138-page report, including 371 footnotes and a 30-page appendix listing all properly documented CEQA lawsuits filed in California over its 3-year study period (2010-2012), has been posted by its authors, Holland & Knight attorneys Jennifer Hernandez, David Friedman and Stephanie DeHerrera (the “authors”) on their firm’s website. The study is entitled “In the Name of the Environment” and subtitled “How Litigation Abuse Under the California Environmental Quality Act Undermines California’s Environmental, Social Equity and Economic Priorities – and Proposed Reforms to Protect the Environment From CEQA Litigation Abuse.” Based on my review, the study will be a valuable and interesting read for environmental and land use lawyers, consultants, and others regularly involved with or interested in the CEQA process. That said, its findings and conclusions will not come as any surprise to those on the front lines of CEQA litigation.
Continue Reading CEQA Litigation Abuses Documented By New Empirical Study Of Recent Case Filings

In a 47-page published decision filed June 17, 2015, the Fourth District Court of Appeal reversed the trial court’s judgment denying a writ petition, and held that Respondent Western Riverside County Regional Conservation Authority (“Agency”) must comply with CEQA before “refining” its Multiple Species Habitat Conservation Plan (“MSHCP”) to exclude a 200-acre parcel of ranch land owned by Anheuser-Busch, LLC (“Busch”) from its protections against development. Albert Thomas Paulek v. Western Riverside County Regional Conservation Authority (Anheuser-Busch, LLC, Real Party in Interest) (4th Dist., Div. 2, 2015) 237 Cal.App.4th 1005.
Continue Reading Fourth District Holds Agency’s Removal of Conservation Designation From Land Formerly Protected Under MSHCP Is “Project” Subject to CEQA; Class 7 and 8 Categorical Exemptions for Environmentally Protective Regulatory Actions Do Not Apply

In a published decision filed October 31, 2014 (Paulek v. California Department of Water Resources (4th Dist., Div. 2, 2014) 231 Cal.App.4th 35, Case No. E060038), the Fourth District Court of Appeal affirmed the Riverside County Superior Court’s judgment denying a petition for a writ of mandate challenging an EIR for the Perris Dam Remediation Project.  The Department of Water Resources’ (“DWR”) DEIR proposed three activities:  (1) remediating the dam’s structural seismic deficiencies; (2) replacing its outlet tower; and (3) creating a new “Emergency Outlet Extension.”  The FEIR addressed a modified project including only the first two components and splitting the emergency outlet extension into a separate project and environmental review process.
Continue Reading Fourth District Addresses CEQA Issues Concerning Standing, Mitigation,Baseline, Piecemealing, And Responses To Comments In Affirming Judgment Upholding Perris Dam Remediation Program EIR

In a decision ordered published on June 17, 2014, nearly a month after it was originally filed, the Fourth District Court of Appeal addressed a key element of the related doctrines of res judicata and collateral estoppel – the concept of “privity.”  (Roberson v. City of Rialto (Wal-Mart Real Estate Business Trust, et al., Real Parties In Interest) (4th Dist. 2014) 226 Cal.App.4th 1499.)  The Court did so in a manner that could prove very useful to public agencies and project proponents defending actions brought by ostensibly distinct CEQA/land use plaintiffs who are actually seeking to serially re-litigate claims or issues brought in the “public interest” that have previously been finally adjudicated.
Continue Reading Estopping the “Revolving Door” CEQA/Land Use Plaintiff: Roberson v. City of Rialto Holds Different Plaintiffs Litigating To Vindicate Same Public Interests Are Still In Privity6

Earlier this month, I posted an entry regarding the latest legislative effort at meaningful CEQA reform.  See New CEQA Reform Bill (SB 1451) Proposes Positive Changes That Would Reduce “Late Hit” Document Dumps and Extend Indefinitely Current Standing Requirements For After-Formed Organization Plaintiffs, by Arthur F. Coon, posted May 1, 2014.  I was genuinely enthused about SB 1451’s content and its prospects, thoughts I shared at length with a Daily Journal reporter who contacted me shortly after my post in connection with a story she was writing on the proposed law.

Unfortunately, the prospect of meaningful legislative CEQA reform offered by SB 1451 was short-lived.  Less than a week after my post, the bill’s author, Senator Hill, requested cancellation of a May 6 hearing on the bill that had been set before the Senate Committee on the Judiciary.  My Daily Journal reporter contact tabled her story; for all intents and purposes, it appears that SB 1451 is “dead in the water.”  A contact in the environmental consulting industry relates that a trusted source has advised that political pressure from organized labor interests killed the bill.  This outcome is certainly not surprising, but it is nonetheless disappointing to proponents of meaningful and common-sense CEQA reform.


Continue Reading CEQA “Late Hit” Reform Bill (SB 1451) Is Withdrawn By Author

A CEQA reform bill (SB 1451) introduced and authored by seven (7) Democrats (Senators Correa, Galgiani, Hill, Hueso, Roth, and Steinberg, and Assembly Member Mullin) would amend Public Resources Code § 21177 to heighten standing requirements for CEQA plaintiffs by requiring them to raise issues of alleged CEQA noncompliance much earlier in the administrative process to avoid forfeiting the right to later sue on such issues.
Continue Reading New CEQA Standing Reform Bill (SB 1451) Proposes Positive Changes That Would Reduce “Late Hit” Document Dumps And Extend Indefinitely Current Standing Requirements For After-Formed Organization Plaintiffs

The Sixth District Court of Appeal, in a published decision filed September 30, 2013, reversed a grant of summary judgment in favor of defendant City of San Jose in an action challenging its “Envision San Jose” comprehensive general plan update.  California Clean Energy Committee v. City of San Jose (6th Dist. 2013) 220 Cal.App.4th 1325.  The trial court found plaintiff CCEC failed to exhaust administrative remedies (as required to file a mandamus action challenging the general plan EIR) because it did not file an administrative appeal of the City planning commission’s certification of the EIR (as required by the City’s Municipal Code).  The Court of Appeal held this was in error because under CEQA’s delegation rules the planning commission couldn’t validly make a final EIR certification decision that could be appealed to the Council.
Continue Reading CEQA Standing and Exhaustion Rules Applied In Action Challenging City of San Jose’s General Plan Update

Meaningful CEQA reform is a topic much discussed by politicians and stakeholders, but its realization remains elusive.  For example, in-fill exemptions are fettered with multitudes of complex and convoluted conditions and exceptions to the point of uselessness.  In addition, many of the law’s most basic concepts – e.g., standards of review for exemptions; standards for permissible deferred mitigation; requirements for EIR alternatives and cumulative impacts analysis; what constitutes a “project approval,” or the appropriate environmental “baseline” – are unclear and frequently misapplied.  And what constitutes an “abusive” or “frivolous” CEQA lawsuit brings much debate among CEQA attorneys.  The uncertainty that results from these circumstances can substantially delay, increase the costs of, and ultimately kill even thoughtful, well-designed development projects.  Yet CEQA has undeniably protected and improved the quality ofCalifornia’s environment over the last 40 years and reform proposals understandably tend to be viewed with skepticism; many fear “throwing out the baby with the bathwater.”
Continue Reading CEQA Standing Reform: Could Statutory Standing Requirements Feasibly Be Tightened To Bar Anti-Competitive Lawsuits Motivated By Economic Rather Than Environmental Concerns?