Abbott & Kindermann Land Use Law Blog : California Land Use, Environmental & Real Estate Lawyer & Attorney : Abbott & Kindermann Law Firm : Sacramento, CA

By Leslie Z. Walker, Cori Badgley, Katherine J. Hart and William W. Abbott

True to our standard annual mid-year update format, we are providing you with condensed summaries of each of the CEQA cases issued this year. The condensed case summaries are organized based upon the major CEQA issues discussed, and linked to the full length articles published earlier this year on our blog. To print this summary with all the articles attached, click here.

Highlights for this update include the three firsts on the climate change front: (1) adoption of CEQA guidelines for the quantification and mitigation of greenhouse gas emissions (“GHG”), (2) the adoption of the first thresholds of significance for GHG, and (3) the first appellate court case finding an Environmental Impact Report’s (“EIR”) analysis of GHG inadequate. Also in the first half of this year, the California Supreme Court opined that air impacts are to be measured against existing physical conditions not existing permitted levels of emissions. Further, Notices of Determination and Notices of Exemption trigger shortened statutes of limitations, despite any underlying errors, so long as they serve public notice purposes. For more details, read below and stay posted for the second half of the year.

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By Cori M. Badgley

One of the threshold questions in any review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (“CEQA”) is whether the project requires discretionary action or approval by the governmental entity. If the answer is no, then CEQA does not apply and no environmental review is required. In San Diego Navy Broadway Complex Coalition v. City of San Diego (2010) ____ Cal.App.4th ___, the Court of Appeal, Fourth Appellate District addressed this threshold question in the context of supplemental environmental review of climate change impacts under Public Resources Code section 21166. The court held that because any discretion on the part of the City of San Diego (“city”) was limited to aesthetics only, there was no discretionary action triggering supplemental environmental review of climate change impacts.

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By Katherine J. Hart

In San Joaquin River Exchange Contractors Water Authority v. State Water Resources Control Board, et al., (2010) ____ Cal. App.4th ____, a group of public agencies, water contractors, and farmers filed a petition for writ of mandate against the State Water Resources Control Board (“State Board”) under the Clean Water Act (33 U.S.C. § 1251 et seq.) and the California Environmental Quality Act (“CEQA”) (Pub. Resources Code, § 21000 et seq.)

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By William W. Abbott

The shelf life of mitigation measures may readily outlast the lives of the projects to which they are attached, according to the First Appellate District. While the fact pattern is specific to timber harvesting and later conversion, the holding has application in the broader world of all CEQA practice.

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By William W. Abbott

In 1986, the Legislature enacted the Mitigation Fee Act (“MFA”) (Government Code section 66000 et seq.) Supported by the building industry, this legislation was thought to operate as a limitation on the enactment of impact fees by local government, a practice which was gaining in momentum following the voter enacted Proposition 13 and the resulting chaos in local government funding. By providing express statutory recognition for impact fees, the Mitigation Fee Act, in this author’s opinion, inadvertently led to the significant expansion in the world of impact fees rather then operating as a brake. To the extent that a city or county was sitting on the fence as to whether or not it could adopt impact fees, that question was now clearly answered by the MFA. The result has been the widespread adoption of fees, with the creative juices of consultants testing the limits of what can be funded through fees (e.g. bullet proof vests for public safety staff.)

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By Cori M. Badgley

The California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) (“CEQA”) provides that the purpose of an environmental impact report (“EIR”) is “to provide public agencies and the public in general with detailed information about the effect which a proposed project is likely to have on the environment.” (Pub. Resources Code, § 21061.) In Center for Biological Diversity v. County of San Bernardino (2010) __ Cal.App.4th __, the court found that an EIR for a proposed open-air composting facility did not satisfy the informational purposes of an EIR in relation to air quality alternatives and water supply.

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