On March 30, 2020, the publishers of the California Land Use Law & Policy Reporter and sponsoring law firms (including Miller Starr Regalia) will present the Sixth Annual California Land Use Law & Policy Conference at the Marriott City Center Hotel in Oakland. The intensive one-day program will cover housing, coastal sea level rise, wetlands and endangered species regulation, and CEQA issues, and will feature a keynote address on legislative housing fixes by California Assemblyman David Chiu. I’ll be speaking with my colleagues Jennifer Hernandez and Alisha Winterswyk on CEQA’s history, track record; and trends as our state’s signature environmental law turns 50 this year. Further details on program content, faculty and registration can be found here. Hope to see you there!
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CEQA Wars: The Developer Strikes Back (In Federal Court)
By Arthur F. Coon on
Background
A long time ago, in a legal galaxy far, far away, Emperor Reagan signed the California Environmental Quality Act (“CEQA”) into law. For many years, the “dark forces” that had wrought the adverse environmental impacts giving rise to CEQA – land developers and the public agencies granting their approvals – labored under its ever-expanding yoke. Many litigation battles were fought, and many won by the heroic Jedi of the environmental plaintiffs’ bar and their NGO clients, firmly establishing the preeminence and vast reach of CEQA’s seemingly beneficent empire into the far-flung corners of the legal universe. CEQA’s “force” was such that no project with the potential to effect a physical change in the environment, unless granted legislative or magisterial exemption, escaped its watchful eye and mitigating powers.
CEQA Meets RICO: True Stories Of Extortion And Litigation Abuse In Tinseltown
By Arthur F. Coon on
A lawsuit filed June 10, 2019, in the U.S. District Court for California’s Central District, and conspicuously reported on last month in Law360, takes dead aim at defendants who are alleged to have filed and threatened frivolous CEQA suits for the sole purpose of extorting monetary settlements – in this case, from plaintiffs alleging they are economically vulnerable Hollywood hotel project developers who were forced to capitulate to defendants’ extortionate demands.
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The Curious Case of the EIR Without A “Project”: Third District Rejects CEQA, Statutory Challenges To DOGGR’s “Unique” S.B. 4-Mandated EIR Analyzing Statewide Fracking/Well Stimulation Impacts
By Arthur F. Coon on
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) 36 Cal.App.5th 210.
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Supreme Court Hears Oral Argument In CEQA Project Definition Case
By Arthur F. Coon on
Posted in Baseline, CEQA Guidelines, Exemptions, Land Use, Legislation, Litigation, Mitigation, Uncategorized
The California Supreme Court heard oral arguments in an important case we’ve been following involving CEQA’s definition of a “project” on the afternoon of June 4, 2019, and took the matter under submission. The case – Union of Medical Marijuana Patients v. City of San Diego (California Coastal Commission, Real Party in Interest), No. S238563 – involves a City of San Diego ordinance authorizing (as a new use in industrial/commercial zones) and restricting the location and manner of operation of medical marijuana dispensaries within the City, and plaintiff’s challenge to the City’s determination that its adoption of the ordinance was not a “project” for purposes of having to undergo CEQA review. The Court’s grant of review encompassed the issues whether the particular ordinance is a CEQA project and also whether zoning ordinances in general are CEQA projects.
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Supreme Court Schedules Argument In CEQA Project Definition Case
By Arthur F. Coon on
On May 15, 2019, the California Supreme Court announced it would hear oral argument in Union of Medical Marijuana Patients v. City of San Diego (California Coastal Commission), Case No. S238563, on June 4, 2019, at 2:00 p.m. in its Los Angeles courtroom. This is a long-awaited development as review was unanimously granted in this case on January 11, 2017, and the case was fully briefed by the parties in October 2017. My prior blog post on the case, which presents the important legal issue whether an amendment to a zoning ordinance is, categorically, a “project” under CEQA (see Pub. Resources Code, §§ 21065, 21080(a)), can be found here.
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Spring CEQA Notes – May 2019
By Arthur F. Coon on
Save Lafayette Trees Litigation Update: The Beat Goes On
We last posted on this decision (currently published as Save Lafayette Trees v. City of Lafayette (Pacific Gas and Electric Company, Real Party in Interest) (1st Dist. 2019) 32 Cal.App.5th 148) and its significant CEQA/Planning and Zoning Law statute of limitations holdings in my February 26, 2019 post, which can be found here. In that post, it was noted (among other things) that the Court’s opinion after rehearing was issued on February 8, 2019, following the January 29, 2019 bankruptcy filing of real party PG&E, but that it did not address the effect (if any) of the automatic stay.
Supreme Court CEQA Roundup – March 2019
By Arthur F. Coon on
Spring now being practically “in the air,” a bit of CEQA “spring cleaning” seems appropriate – so here’s a brief look at the status of some significant CEQA-related cases that are now pending before our Supreme Court, or in which its review has been sought:
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CEQA Roundup – February 2019
Just a few updates/items of possible interest as we head toward the end of this short (but very cold and wet) month:
Regulatory Developments
The close of OPR’s public comment period on its Discussion Draft of the CEQA Climate Change Advisory is March 15, 2019, at 5:00 p.m.
OPR also released in late December 2018 its Technical Advisory on Evaluating Transportation Impacts Under CEQA, containing its technical recommendations on VMT assessment, thresholds of significance, and mitigation measures, as well as incorporating Guidelines changes and more recent feedback since release of the April 2018 technical advisory. Details on these and related developments can be found in OPR’s February 21, 2019 email and on its website.
Coastal Act Trumps CEQA: CDP Challenger Must Administratively Appeal Local Entity’s Approval To Coastal Commission Before Bringing Judicial Action
In a published opinion filed February 13, 2019, the Fourth District Court of Appeal (Division 3) reaffirmed the need for a CEQA litigant challenging a coastal development permit to appeal to the Coastal Commission before suing. Fudge v. City of Laguna Beach (Hany Dimitry; Real Party in Interest) (2019) 32 Cal.App.5th 193. The Court refused plaintiff’s invitation to make the simple complex, and followed published precedents requiring a plaintiff to exhaust the statutory administrative remedy of an appeal to the Commission to ripen a litigation challenge.
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