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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.
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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) ___ Cal. App. 5th ___. 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.
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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.
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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.

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

As readers of this blog know, my endeavor since its inception with regard to judicial developments has, in general, been to cover only published CEQA cases.  I have two simple reasons for this, which essentially boil down to importance and practicality.  With regard to my first reason, published cases are more important because they are legal precedents that state holdings and rules binding on everyone, not just the parties to the action.  With respect to my second reason, CEQA is generally an active area of law in terms of appellate cases, new legislation, and other significant developments; keeping track of the published – i.e., most important – cases is a big enough task without worrying about the even greater number of non-precedential unpublished ones.  Since this blog’s beginning in September 2011, it has produced a total of 347 CEQA-related posts (not counting this one), demonstrating there is generally no shortage of subject matter, even with my self-imposed limitation excluding unpublished decisions.
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Continue Reading Why Are CEQA Cases Published Or Not? Observations From A Look Back at 2020’s Decisions

While the COVID-19 pandemic made 2020 a year most would prefer to keep in the rear view mirror, the courts kept fairly busy handing down precedents that hopefully provided us all with a better road map for navigating CEQA.  What follows is not a comprehensive review, but more of a brief trip down memory lane to review a “baker’s dozen” of last year’s case law highlights.
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Continue Reading 2020: A Look Back at the Year’s CEQA Case Law

In late September, Governor Newsom signed Executive Order N-80-20 (“EO 80-20”), which, among other things, extends the protections of a handful of previously issued executive orders related to COVID-19.  As relevant to CEQA practitioners, EO 80-20 extends the previous suspension of CEQA’s requirements for filing of specified notices with the county clerk and the posting of such notices in the county clerk’s office.
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Continue Reading Governor Extends Conditional Suspension of Requirements Related to Posting CEQA Notices with County Clerks

A little over a year ago, I posted about the filing of a federal RICO (the federal “Racketeer Influenced and Corrupt Organizations Act”; 18 U.S.C. § 1962 et seq.) lawsuit by developer Relevant Group, LLC and related entities (“Relevant”) alleging that defendants (Stephan “Saeed” Nourmand and Michael Nourmand and their business entities) filed and threatened frivolous CEQA suits solely to “shake down” and extort monetary settlements – without regard to environmental concerns – from economically vulnerable hotel project developers.  (See “CEQA Meets RICO:  True Stories Of Extortion and Litigation Abuse in Tinseltown,” posted July 12, 2019.)  Since then, the litigation has progressed significantly.  After surviving a robust motion to dismiss, the case has become “at issue” with defendants’ filing of an answer to plaintiffs’ Second Amended Complaint (“SAC”) on June 24, 2020, and the District Court filing a Scheduling and Case Management Order on July 24, 2020.
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Continue Reading CEQA Meets RICO: Round Two