In a 38-page opinion filed on May 16, and belatedly ordered published on June 14, 2019, the Third District Court of Appeal affirmed the trial court’s judgment rejecting all of plaintiff/appellant Center for Biological Diversity’s (“CBD”) CEQA and statutory challenges to the EIR that the California Department of Conservation, Division of Oil, Gas and Geothermal Resources (“DOGGR”) was required by S.B. 4 (Stats. 2013, ch. 13, § 2) to prepare “pursuant to [CEQA], to provide the public with detailed information regarding any potential environmental impacts of well stimulation in the state.”  (Pub. Resources Code, § 3161(b)(3)(A).)  The Court’s opinion addresses and disposes of CBD’s CEQA and other challenges in a highly unusual, and even unprecedented, context – that of a statutorily required program EIR addressing the statewide impacts of oil and gas well-stimulation treatments (including the controversial treatment known as hydraulic fracturing or “fracking”) prepared in the absence of any “project” being approved or undertaken by the ostensible “lead agency” (DOGGR).  Center for Biological Diversity v. California Department of Conservation, Division of Oil, Gas and Geothermal Resources, et al. (3d Dist. 2019) ___ Cal.App.5th ___.

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On November 20, 2018, in response to a petition for review filed by the Target Superstore project’s opponent, plaintiff (and respondent on appeal) Citizens Coalition Los Angeles, the California Supreme Court denied review and ordered the Court of Appeal’s opinion depublished.  My September 7, 2018 blog post analyzing and critiquing the Court of Appeal’s decision, which was previously published at Citizens Coalition Los Angeles v. City of Los Angeles (2018) 26 Cal.App.5th 561, can be found here.

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The Fourth District Court of Appeal (Div. 1) held in a published opinion filed October 24, 2018, that CEQA Guidelines § 15164 validly establishes an addendum process that is consistent with the CEQA statute, implementing and filling gaps in Public Resources Code § 21166.  The Court also held that new findings under Public Resources Code § 21081 addressing a project’s significant impacts are not required when a lead agency approves an addendum to an EIR.  Save Our Heritage Organisation v. City of San Diego (The Plaza de Panama Committee, Real Party in Interest) (2018) 28 Cal.App.5th 656.

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“Birds of a feather flock together.”  — Proverb

The Fourth District Court of Appeal (Div. 2) affirmed a judgment entered after the sustaining of a demurrer without leave, holding that a mandate action brought by The Inland Oversight Committee (IOC), CREED-21, and Highland Hills Homeowners Association (HOA) alleging CEQA and Water Code violations was barred by res judicata (based on the final judgment in the HOA’s prior related CEQA action), and failure to state a claim.  The Inland Oversight Committee v. City of San Bernardino (First American Title Insurance Company) (2018) 27 Cal.App.5th 771.  (The Court’s opinion, filed September 14 and later ordered published on September 27, 2018, denied the parties’ motions to dismiss and strike and related requests for judicial notice as moot in light of its disposition on the merits.)


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In an opinion filed August 10, and later ordered published on September 7, 2018, the Fourth District Court of Appeal (Div. 2) affirmed a judgment denying Friends of Riverside’s Hills’ (FRH) writ petition challenging a residential development permit and related Negative Declaration issued by the City of Riverside (City) for a six-home, 11-acre subdivision in an environmentally sensitive area.  Friends of Riverside’s Hills v. City of Riverside (Carlton R. Lofgren, as Trustee, etc., et al., Real Parties in Interest) (2018) 26 Cal.App.5th 1137.

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In a lengthy published opinion filed August 23, 2018, the Second District Court of Appeal reversed the trial court’s judgment, and upheld the City of Los Angeles’ addendum to a prior project-level EIR for a Target Superstore as legally sufficient CEQA compliance for a revised plan-level  project which amended a specific plan so as to authorize that same development.  Citizens Coalition Los Angeles v. City of Los Angeles (Target Corporation, Real Party in Interest) (2018) 26 Cal.App.5th 561.  The Court further held the specific plan amendment was not impermissible “spot zoning,” even if approved only to authorize the site-specific Superstore project, because there was a “reasonable basis” for the City to find it was in the public interest.  While these holdings are not surprising, some of the analysis used to reach the Court’s clearly correct CEQA holding – which analogizes subsequent review rules to piecemealing concepts – is novel and potentially confusing, as discussed below.

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In a lengthy published opinion filed on August 22, 2018, the First District Court of Appeal (Div. 4) affirmed the trial court’s judgment rejecting various CEQA challenges to the City of San Francisco’s (“City”) Program EIR analyzing the environmental impacts of its 2009 General Plan Housing Element, which it adopted on June 29, 2011.  San Franciscans for Livable Neighborhoods v. City and County of San Francisco (2018) 26 Cal.App.5th 596.  San Franciscans for Livable Neighborhoods (“SFLN”), an unincorporated association comprised of more than a dozen neighborhood organizations, had challenged the EIR – mostly unsuccessfully – in the trial court.  It then appealed from adverse portions of the judgment concerning the EIR’s baseline and impact analyses for traffic, water supply, land use, and visual resources impacts; the City’s decision not to recirculate the EIR; the EIR’s alternatives analysis; and the feasibility of certain proposed mitigation measures.

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SB 743 was enacted in 2013 to further California’s efforts to reduce GHG emissions by encouraging transit-oriented, infill development – a strategy announced in SB 375, the “Sustainable Communities and Climate Protection Act of 2008.”  As part of SB 743, the Legislature enacted Public Resources Code § 21099(d)(1), which provides:  “Aesthetic and parking impacts of a residential, mixed-use residential, or employment center project on an infill site within a transit priority area shall not be considered significant impacts on the environment.”  In an opinion filed February 28, and subsequently certified for publication on March 22, 2018, the Second District Court of Appeal (Division 7) applied § 21099(d)(1) and held that it exempted from CEQA review alleged parking impacts of a 68-acre, mixed-use, infill project, located a quarter-mile from the Covina Metrolink commuter rail station, which the City approved via Mitigated Negative Declaration (MND) three months after the statute’s effective date.  Covina Residents for Responsible Development v. City of Covina (City Ventures, Inc., et al., Real Parties in Interest) (2018) 21 Cal.App.5th 712.  In addition to rejecting plaintiff/appellant CRRD’s CEQA challenges to the project, the Court of Appeal rejected its Subdivision Map Act (SMA) arguments and affirmed the trial court’s judgment denying its writ petition.

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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.


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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.


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