By William W. Abbott
Save the Plastic Bag Coalition v. County of Marin (July 25, 2013, A133868) ___Cal.App.4th ___.
In January 2011, the Board of Supervisors for the County of Marin enacted an ordinance generally banning the use of single use plastic bags and adopting a fee for paper bags. The ordinance also required retailers covered by the ordinance to offer reusable bags for purchase. This ordinance came about after some period of County study. A trade group, Save the Plastic Bag Coalition, submitted comments in opposition to the proposed ordinance, including a demand for an EIR. Initially, the Board continued the hearing. At the continued hearing, the Board considered, among other items, a letter from the County Counsel’s office suggesting that the Board should complete the hearing and could act based upon a categorical exemption (classes 7 and 8; maintenance and restoration of a natural resource and maintenance, restoration, enhancement or protection of the environment, respectively.) Relying upon the two exemptions, the Board approved the use of the two exemptions and approved the ordinance. The Coalition sued. The trial court upheld the Board’s decision and the Coalition appealed.
Appellant’s initial argument was the holding in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155 was controlling and that due to various factors including the size of the County, that an EIR was required. The appellate court disagreed, indicating that nothing in the holding in Manhattan Beach decision (which involved a negative declaration) or the facts, legally precluded Marin County from utilizing a categorical exemption.
Appellant also argued that the exemptions in question could not be relied upon by the County, but were intended to be used on by certain “regulatory” agencies. The County’s initial response was that the Appellant had failed to exhaust its administrative remedies on this issue. The court rejected this argument on the basis that the specific basis for a claimed exemption (the letter from the County Counsel’s office) was not shared with the public until the final hearing. This late disclosure relieved the public from having to exhaust administrative remedies. Turning to the merits of the Appellant’s argument, the court rejected the Appellant’s suggested limitation on the uses of Class 7 and 8, concluding that the County was not legally barred from using those exemptions.
Perhaps the decision’s most interesting discussion pertained to the argument that the use of the exemptions for this purpose would allow agencies to categorize certain actions as “green” or “environmentally protective” thereby escaping any obligation to conduct CEQA review. The appellate court rejected this argument, noting that a public agency must “marshal substantial evidence to support the conclusion that the project fell within the exemption.” Having previously acknowledged that there was a split in the courts as to what judicial standard of review applied when reviewing disputed exemptions, the court said it did not have to address this threshold question as the County’s decision met the more rigorous of the two types of review.
While the appellate decision addresses other related CEQA issues on appeal, the court ordered those portions to be “not published”, and therefore, are not included in this summary.
William W. Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.