In a published opinion filed November 4, 2021, the Second Appellate District (Div. 8) affirmed the Los Angeles County Superior Court’s order denying International Longshore and Warehouse Union Locals 13, 63, and 94’s (“Union”) motion for permissive intervention in complex CEQA litigation involving the China Shipping Container Terminal (“Terminal”) in the Port of Los Angeles.  South Coast Air Quality Management District v. City of Los Angeles, et al (China Shipping (North America) Holding Co., Ltd., et al, Real Parties in Interest) (2021) ___ Cal.App.5th ___.

Continue Reading “Let’s Not Complicate Things”: Second District Holds Trial Court Properly Exercised Its Discretion In Denying Union’s Permissive Intervention Motion In Complex Los Angeles Port CEQA Litigation

On November 18, 2021, the publishers of the California Land Use Law & Policy Reporter and sponsoring law firms (including Miller Starr Regalia) will present, in an online format, the Seventh Annual California Land Use Law Policy Conference.  The one-day program will cover numerous topics including recent housing legislation, environmental justice, tribal consultation, the Surplus Land Act, and, of course, a number of CEQA-related issues and topics. I’ll be speaking on recent themes in the CEQA case law.  More details on program content, faculty and registration can be found here.  Hope you can join!

Continue Reading Miller Starr Regalia To Present Online On CEQA Developments At Upcoming Seventh Annual California Land Use Law & Policy Conference

In a 53-page published opinion filed October 8, 2021, the Fourth District Court of Appeal mostly affirmed, but reversed in part, a judgment in a CEQA action challenging two sets of projects of the City of San Diego to underground overhead utility wires in several neighborhoods.  McCann v. City of San Diego (2021) ___ Cal.App.5th ___.  The opinion addressed and resolved a number of significant and interesting CEQA claims and issues involving the exhaustion doctrine; procedures for administratively appealing CEQA exemption determinations (and related due process notice issues); piecemealing; project description; aesthetics; and proper methodology for determining the significance of GHG emissions impacts through assessing a project’s consistency with a local Climate Action Plan (CAP).

Continue Reading Fourth District Addresses Numerous Significant CEQA Issues In Action Challenging City of San Diego’s Utility Undergrounding Projects

On September 13, 2011, I began the endeavor of writing Miller Starr Regalia’s CEQA Developments blog.  Ten years and 358 blog posts later, it continues to be a challenging and rewarding task.  Since my inaugural post (which can be viewed here) was a “top ten” list of CEQA litigation mistakes to avoid, I thought an appropriate tenth anniversary post might be a list of the ten most significant CEQA case law developments over the past decade.  My “top ten” list is definitely subjective, is limited to Supreme Court decisions, and (by its very nature) fails to include many important judicial developments.  Nonetheless, here it is (with the decisions listed in no particular order):

Continue Reading A Decade of CEQA Developments

In a published decision filed August 17, 2021, the Fifth District Court of Appeal affirmed the trial court’s judgment directing issuance of a writ of mandate ordering Inyo County to vacate three resolutions of necessity that authorized its condemnation of three Owens Valley landfill properties, including appurtenant water rights, owned by the Los Angeles Department of Water and Power (LADWP).  Los Angeles Dept. of Water & Power v. County of Inyo (2021) 67 Cal.App.5th 1018. The County operates three landfills on the properties pursuant to leases from LADWP.  In the published part of the opinion, the Court of Appeal held that CEQA’s issue exhaustion requirement did not apply to LADWP’s challenge to the County’s exemption determinations because the County failed to provide adequate notice of them, thus depriving LADWP of an opportunity to be heard on the issue.  As a matter of law, the Court also held the County improperly relied on the existing facilities exemption for the project.

Continue Reading Fifth District Holds Issue Exhaustion Not Required Where Agency Gave No Notice of Intent To Rely On CEQA Exemption Prior to Hearing, And Existing Facilities Categorical Exemption Does Not Apply to Unlined Landfills As A Matter of Law

Of all the major sports, baseball is the only one that is not played “on the clock.”  So it’s only fitting that the First District recently held the special legislation (AB 734; Pub. Resources Code, § 21168.6.7) enacted to provide fast-track judicial review benefits to the Oakland A’s baseball park/mixed use development project (Howard Terminal Project) likewise had no terminal time limit.  In a published decision filed August 10, 2021, the First District Court of Appeal affirmed the trial court’s judgment rejecting petitioners’ claim that the clock ran out on January 1, 2020 on Governor Newsom’s authority to certify the project as meeting the statute’s qualifying criteria.  Pacific Merchant Shipping Association, et al. v. Gavin C. Newsom, etc., et al. (Oakland Athletics Investment Group, LLC, Real Party in Interest) (2021) 67 Cal.App.5th 711.  The Court held that because AB 734 itself contains no deadline for certification, and the Legislature did not intend to incorporate the January 1, 2020 deadline from the Governor’s AB 900 Guidelines, Governor Newsom’s authority did not expire prior to his exercise of it, meaning that his subsequent February 11, 2021 certification (made shortly after the trial court’s favorable decision) was valid and effective.

Continue Reading First District Holds CEQA Special Legislation For Oakland Howard Terminal Project (AB 734) Did Not Incorporate AB 900 Guidelines’ Deadline For Governor Certification; Governor Newsom’s Certification of Project As Qualifying For Expedited Judicial Review Was Timely

Pursuant to Governor Newsom’s June 11, 2021 Executive Order N-08-21, the conditional suspension of certain public agency requirements related to the filing and posting of CEQA notices (i.e., NOEs, NODs, and notices of intent and availability) will end on September 30, 2021.  The COVID-related suspension had previously been ordered in April 2020 by Executive Order N-54-20; it was later indefinitely extended by Executive Order N-80-20, as discussed in a prior October 12, 2020 post by Arielle Harris and me that can be accessed here.  The Governor’s new EO means that, as of September 30, the conditionally authorized alternative procedures for publicizing the relevant CEQA documents will no longer be authorized or available to public agencies, and the normal filing, noticing and posting requirements will resume and again apply with full force.

Continue Reading COVID-Related Conditional Suspension of CEQA Public Filing, Posting, Notice, and Other Requirements To Sunset On September 30, 2021 Under New Executive Order

In an opinion filed April 23, and later certified for publication on May 13, 2021, the Fourth District Court of Appeal affirmed in part an order denying an anti-SLAPP (Strategic Lawsuit Against Public Participation) motion, and held that a malicious prosecution action could proceed against losing CEQA plaintiffs who had unsuccessfully challenged a Mitigated Negative Declaration (MND), but not against their attorneys.  Jan Dunning, et al. v. Kevin K. Johnson, APLC, et al. (4th Dist. 2021) 64 Cal. App. 5th 156. While the merits of the malicious prosecution action have yet to be determined, the Court of Appeal’s ruling that the action could even proceed is itself significant given the daunting hurdle posed by the anti-SLAPP statute, and should give pause to project opponents who think that meritless CEQA litigation lacking probable cause and brought with malice can be pursued without potential consequence.

Continue Reading Is More Litigation the Remedy for Meritless CEQA Litigation? Fourth District Concludes Malicious Prosecution Action Against Losing CEQA Plaintiffs Survives Anti-SLAPP Motion

I’m very pleased to report that my colleague Travis Brooks will be speaking on CEQA issues and recent developments online at the 35th annual California Water Law & Policy Conference, which is presented by Argent Communications and will take place in virtual format on April 19 and 21, 2021.  Miller Starr Regalia is a sponsor of the conference “California Water Rights, Policies Regulation, and the Future Under the New Administration,” and Travis’s topic, “CEQA Update:  Yes, Water Practitioners Need to Know This,” will be presented on April 19, 2021, at 1:15 p.m.  The Conference webpage and brochure can be found here and here, and registration information and materials can be accessed here.

Continue Reading Miller Starr Attorney To Present On CEQA Developments At Upcoming Water Law Conference

“The more I know, the less I understand/All the things I thought I’d figured out, I have to learn again” – Don Henley, “The Heart of the Matter”

One of CEQA’s bedrock principles is that environmental review must precede project approval.  (E.g., POET, LLC v. California Air Resources Board (2013) 217 Cal.App.4th 1214; CEQA Guidelines, § 15004(a).)  To reverse the order and “put the cart before the horse” would be anathema, i.e., to sanction uninformed and undemocratic lead agency decision making, and to encourage irretrievable commitments of resources and post-hoc rationalizations that foreclose mitigations and alternatives and sweep environmental considerations under the rug.  Right?  Well …  maybe not.  In the area of State Water Resources Control Board (“SWRCB” or the “State Board”) water quality certifications (“WQCs”) under the Federal Clean Water Act (“CWA”; 33 U.S.C § 1251 et seq), this bedrock principle appears to have been watered down, and it may be significantly eroding under pressure from a preemptive federal law deadline.


Continue Reading Must CEQA Compliance Precede Project Approval? When State Water Board Water Quality Certifications Are Involved, The Answer Is As “Clear as Mud”