2020 CEQA 1st QUARTER REVIEW

Welcome to Abbott & Kindermann’s 2020 1st Quarter cumulative CEQA update. This summary provides links to more in-depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.

  1. 2019 CEQA UPDATE

 To read the 2019 cumulative CEQA review, click here: https://blog.aklandlaw.com/2020/01/articles/ceqa/2019-ceqa-4th-quarter-review/

  1. CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 2 CEQA case pending at the California Supreme Court. The cases and the Court’s summaries are as follows: 

Protecting Our Water & Environmental Resources v. Stanislaus County, S251709. (F073634; nonpublished opinion; Stanislaus County Superior Court; 2006153.) Petition for review after the Court of Appeal reversed the judgment in a civil action. This case presents the following issue: Is the issuance of a well permit pursuant to state groundwater well-drilling standards a discretionary decision subject to review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) or a ministerial action not subject to review?

County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate. This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project? (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?

  1. UPDATE
  2. Exemptions

Citizens for a Responsible Caltrans Decision v. Department of Transportation, 2020 Cal.App. LEXIS 243.

Petitioners challenged the CEQA exemption determination by Caltrans for an Interstate 5/State Route 56 interchange project in San Diego County as part of its North Coastal Corridor (“NCC”) project to improve vehicle and railroad transportation in the 27-mile La Jolla-Oceanside Corridor. After previously issuing a Draft EIR in 2012, and a Final EIR in 2017 for a 30-day review period which stated “After the [FEIR] is circulated, if Caltrans decides to approve the [p]roject, a [NOD] will be published in compliance with CEQA by Caltrans . . . ,” Caltrans filed a Notice of Exemption (“NOE”) on June 30, 2017, prior to the close of the FEIR review period. In the NOE, Caltrans asserted that the project was statutorily exempt from CEQA pursuant to Streets & Highways Code section 103 and Public Resources Code sections 21080.5(c) and 21080.9. Caltrans further relied on the position that the project’s impacts were analyzed consistent with the California Coastal Commission’s certified regulatory program.

Petitioners first became aware of the NOE on September 28, 2017 and requested Caltrans rescind the NOE or agree to a 180-day statute of limitations for challenging the decision. Caltrans refused and petitioners filed suit on November 1, 2017, alleging (i) that Caltrans improperly relied on section 103, (ii) that the department is estopped from relying on the 35-day statute of limitations period, and (iii) additional claims on the merits of the adequacy of the FEIR for the project. Caltrans demurred and the trial court sustained the demurrer without leave to amend. Petitioners appealed.

The Court of Appeal reversed and remanded the case for further proceedings. It held that Caltrans improperly relied on section 103 as a statutory exemption, because its plain language was limited to the approval of a public works plan (such as the NCC project) by the Coastal Commission, not for the approval of a specific individual project by Caltrans. The Court also held that petitioners had adequately alleged facts sufficient to support the estoppel claim. It reasoned that Caltrans public statements of its intent to issue a NOD for the project after the FEIR review period were enough to establish a disputed question of fact as to whether the elements of estoppel could be met.

  1. Negative Declarations

 Save the Agoura Cornell Knoll v. City of Agoura Hills, 2020 Cal.App. LEXIS 222.

 The familiar story in this blog is that of the fair argument standard, and the difficulty faced by a lead agency when defending a negative declaration or mitigated negative declaration. The facts involve a relatively small project on 8.2 acres, and the developer’s plan was to consolidate 24 parcels into two lots, with a mixed-use project on 6.23 acres and the balance of 1.98 acres as an open space lot. Most of the site was covered by a specific plan adopted in 2008, the balance noted as a Significant Ecological Area. The City Council approved the project based upon a negative declaration following an appeal from the planning commission approval. The trial court ruled against the lead agency and developer (Gelfand) based upon CEQA claims and violation of the City’s oak tree ordinance. The Court of Appeal in a very detailed decision covering several substantive and procedural issues, affirmed the trial court’s judgment.

Tribal Cultural Resources. In prior studies, a portion of the project site had been identified as a significant heritage resource, and prior consultants believed that the site met the requirements for inclusion in the California Register of Historic Resources. The negative declaration included three mitigation measures to reduce impacts to less-than-significant levels: (i) CS-CR-1 (monitoring during construction with an action plan to be developed based upon resources which are discovered), (ii) CS-CR-2 (notification steps if human remains discovered), and (iii) CS-CR-3 (excavation program if the site cannot be avoided). On appeal, the issues were (1) whether the City properly consulted with the Tribe with respect to tribal cultural resources (“TCRs”), and (2) the sufficiency of CS-CR-3. (The appellate decision does not address the consultation issue any further than to note that there had been exhaustion of administrative remedies.)

As to the merits of the mitigation measures, the appellate court faulted the City because (1) the extent of the resource site had never been established, (2) the response plan if resources were discovered was improperly deferred and was not tied to a performance standard, and (3) there was competent evidence of a fair argument by an expert that the project would destroy the cultural resource. In response to the same expert’s conclusion that the data recovery program would be expensive, the Court ventured into unchartered waters concluding that the negative declaration failed to assess the feasibility of the data recovery program required as part of Mitigation Measure CS-CR-3. (In this author’s opinion, this evaluation is not required.) All of these facts undermined the conclusion that impacts would be mitigated to a less than significant level.

Sensitive Plant Species. The negative declaration included mitigation for impacts on sensitive plant species. CS-Bio-1 required surveys for two species in advance of grading and replanting requirements. The appellate court concluded that there was substantial evidence of a fair argument of potential impacts because (1) a letter from California Department of Fish and Wildlife (“CDFW”) indicated that the studies relied upon were “outdated,” and (2) the most recent study was during a drought period, and CDFW recommended additional studies. The appellate court concluded that there was no substantial evidence that the additional studies could not have been performed. Additionally, CDFW also questioned the success of restoration planting for the two species, and a previous study noted that most of the attempts to re-establish the plants had failed. The Court also concluded that there was improper deferral as there was no standard identified to determine if avoidance was infeasible and that there was no detail about what the maintenance plan actions would entail.

As to a third plant, a special status species, the appellate court also found that the administrative record contained sufficient evidence to support a fair argument that mitigation through onsite preservation or offsite restoration may not succeed, and therefore there may be a significant impact.

CS-Bio-2 dealt with the location of the key plants in areas of firebreaks. However, the mitigation strategy was only crafted to address plant protection initially during construction, and not long term. The CDFW letter expressed concern for the disruption of the plant species (although not in very emphatic terms) and this letter was sufficient to provide the required evidence in support of a fair argument.

Oaks. The site included a number of oak trees and scrub oak habitat, and the project would require significant oak and habitat removal. The appellate court concluded that the mitigation measures were insufficient, and that there was substantial evidence of a fair argument as to potential impacts. As to the oaks retained on site, there was testimony that site grading could have an adverse effect on the subsurface water flow to the oaks, jeopardizing the trees according to the appellant’s consultant, a point also confirmed by the City’s own consultant. Additionally, there was substantial evidence of a fair argument that replanting, as one of the mitigation options, had not been demonstrated as successful in recreating oak woodlands. Finally, allowed mitigation included payment into an in-lieu fund. The Court rejected this mitigation option as the negative declaration did not specify the fees to be paid, the number of trees to be planted offsite or any analysis of the feasibility of an offsite mitigation program. (It appears that the City’s fee program had not gone through its own CEQA review.)

Exhaustion of Administrative Remedies. On appeal, the City and developer vigorously argued that the issues raised in court had not been raised during the administrative proceeding, leading to a defense of failure to exhaust administrative remedies. This is a fact intense inquiry, but for each argument, the Court of Appeal found record of sufficient objections during the project review process to satisfy the exhaustion requirement.

Standing. On appeal, the City and developer argued that there was no evidence that the petitioner, or a member of the organization had objected to the project, and that the amended pleading which added California Native Plant Society as a petitioner occurred after the expiration of the statute of limitations. Thus, argued the City/developer, the case should be dismissed. However, this defense was not raised at the trial court, but only included in the developer’s reply brief. In these circumstances, the argument was considered to be waived.

Attorney’s Fees (Code of Civil Procedure §1021.5). The trial court awarded the opponents $142,148 in fees and costs (the opponents sought nearly $340,000) and allocated one half of the liability to the City and the balance to the developer (personally) and the partnership, jointly and severally. On appeal, the appellants argued that the petitioners were not entitled to any award on the basis that a copy of the petition had not been timely served on the California Attorney General. (See Public Resources Code §21167.7.)  A prior decision had reached that conclusion. (Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547.) However, this court found the facts to be distinguishable (in Schwartz, the service was not accomplished until right before the hearing on the merits. Here, the service was well in advance of the court hearing, leaving the Attorney General ample time to participate in the litigation.)

The Court of Appeal also affirmed the developer’s personal liability. The developer, Gelfand, was an officer of the corporation which served as the general partner in the limited partnership. Gelfand had been listed as the applicant in the notice of determination as did the resolutions of approval. Additionally, there was evidence that Gelfand had more of an interest in the property than just serving as a corporate officer, supporting the conclusion that Gelfand had a personal interest in the project and outcome and that he was holding himself out as “a property owner and/or project applicant.” In these circumstances, the trial court did not err in finding Gelfand and the corporation’s general partner as jointly and severally liable for one half of the award. (Obviously, applicants would do well to follow more disciplined communication practices when communicating with the City or County as part of the application process.)

  1. Environmental Impact Reports

Environmental Council of Sacramento v. County of Sacramento (2020) 45 Cal.App.5th 1020.

The County of Sacramento approved a master planned community, a feature of which was a proposed university. Opponents filed a CEQA challenge arguing: (1) the uncertainty over whether the university would be constructed invalidated the project description and impact analyses for traffic, air quality and climate change; (2) the project was inconsistent with the local Sustainable Communities Strategy; and (3) the agency’s failure to adopt feasible mitigation measures. The trial court and Court of Appeal upheld the master plan approval, addressing several issues:

Project Description.  The appellants argued that uncertainty regarding the university resulted in an improper project description. The original development application reflected a California State University as the future education facility, but the Board of Trustees withdrew. The project was approved without an educational commitment. The project was conditioned to freeze the university campus site for 30 years, and the developer was required to fund a university escrow account. The administrative proceedings included communications speaking to the need for additional educational facilities and the desirability of this location for this purpose. Based upon these facts, the Court held that it was not unreasonable for the County to include the university as part of the project description. Stated another way, it was not reasonably foreseeable that a substitute land use would occur in lieu of the university, and an EIR is only required to evaluate reasonably foreseeable activities. Thus, the opponents failed to present “credible and substantial evidence” that the university was an illusory land use.

Air Quality.  The appellants made a related argument that as the university was illusory, certain impact analyses and conclusions were necessarily erroneous. Regarding air quality, the mitigation measures had been revised to achieve the same air quality mitigation levels even in the event of a change in land use for the university, thus there was no substantial increase in impact levels (and no recirculation required).  Moreover, the project impact was already determined to significantly exceed the threshold of significance levels that a reduction in mitigation would not ultimately lead to a substantial increase in severity of the impact. Finally, the Court noted that in any case the resultant reduction in the level of mitigation is not equivalent to an increase in impacts for recirculation purposes.

Climate Change.  As with air quality, the planning documents were amended to carry forward the metric tons per capita limit for GHG emissions, with or without the university.  Thus, the environmental document remained valid even in the absence of the university component.

Traffic.  Appellants also challenged the traffic analysis in the event the university was not developed.  However, the Court held that this was adequately addressed in the FEIR as a response to comment which noted that non-automotive trips associated with the university had only limited effect on overall mode share and that elimination of the university would reduce daily trips by approximately 9,000.

Sustainable Community Strategies.  The appellate court rejected the inconsistency argument on the basis that appellants failed to exhaust administrative remedies and nothing in SB 375 required consistency review as part of the CEQA process.

Feasible Mitigation Measures.  Appellants argued that phasing the project would be a feasible mitigation measure. This was interpreted by the trial court as not building some, or all of the project until a university was built. The Board had adopted findings that suggested mitigation measures not incorporated into the project were rejected in part because the measures would interfere with attaining the economic, social and other benefits of the project which the “Board finds outweighs the unmitigated impacts of the Project.” The appellate court concluded that the appellants had failed to meet their burden of demonstration the feasibility of the phasing mitigation measure.

King & Gardiner Farms, LLC v. County of Kern (2020) 45 Cal.App.5th 814.

In a long and detailed opinion from the Fifth District Court of Appeal, the appellate court considered a multitude of CEQA claims over the County’s environmental impact report adoption in support of an ordinance establishing streamlined processing procedures for eligible oil and gas exploration and production activities in Kern County. The trial court ruled in favor of petitioners, finding deficiencies in the EIR related to agricultural impacts and impacts of road paving as mitigation for dust and air quality. Plaintiffs appealed.

The issue had already spawned a separate bifurcated decision on land use claims alleging the ordinance violated the equal protection and due process clauses of the California and U.S. Constitutions. The decision rejecting the challenges was issued in November 2019 in Vaquero Energy, Inc. v. County of Kern (2019) 42 Cal.App.5th 312 (See p. 44 of CEQA/Land Use Update). While only “CERTIFIED FOR PARTIAL PUBLICATION,” the published portion of the King & Gardiner Farms decision still addressed numerous topics that CEQA practitioners should consider when preparing EIRs, many of which could have broad applicability. The most noteworthy holdings addressed (1) conservation easements as agricultural mitigation; and (2) the evidence required to support the use of mitigation that requires an action to be taken “to the extent feasible.” As to the former, the Court concluded that the less than significant impact conclusion for the loss of agricultural land was unsupported, reasoning that conservation easements do not actually reduce the amount of agricultural land lost due to the project. As for the latter, the Court found that “to the extent feasible” was more of a goal statement than a commitment to mitigation and that agencies have a duty to demonstrate the mitigation will have at least some reduction of the impact to be deemed mitigation. The Court explained that the agency’s finding that the mitigation “‘could’ [reduce water supply impacts] suggests the possibility of reductions without eliminating the possibility there might not be any reductions.”

  1. CEQA Litigation

Canyon Crest Conservancy v. County of Los Angeles, 2020 Cal.App. LEXIS 207.

 A non-profit organization petitioner, established by the immediate neighbors to the project site, filed suit challenging the County’s decision approving a minor conditional use permit and an oak tree permit for development on a steep hillside and the removal of a protected coastal oak tree to allow the development of a 1,436 square foot single family home on an undeveloped 1-acre lot in Los Angeles County. After the trial court granted a stay of the permit approvals, the project proponent requested the County vacate the approvals, stating that he could not afford the litigation. The County complied, the case was dismissed, and the petitioner filed a motion for attorney fees pursuant to Code of Civil Procedure section 1021.5. The trial court denied the motion and petitioner appealed.

The appellate court affirmed. Applying the abuse of discretion standard of review, it held that petitioner failed to establish two of the prongs necessary to support an award of attorney fees, including (1) the enforcement of an important right affecting the public interest; or (2) conferring a significant benefit on the general public or a large class of persons. On the first, the Court reasoned that petitioner had not actually achieved the goal of additional environmental review as the stay was not based upon the merits of the case, and there was no evidence that the County would do anything differently if the applicant or anyone else reapplied. As for the second, it reasoned that although the enforcement of a statutory obligation always confers a benefit on the public, there was no significant benefit to the public because the project only involved a small home, there was no evidence that the county would actually change any of its practices, and there was no evidence that the lawsuit would lead to additional opportunities for public input which were lacking in the disputed approval process.

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

A Note To Our Loyal Readers Of The Land Use Law Blog…

While blog readers are used to a one-off blog on April Fools’ Day, it is no laughing matter this year. Times are challenging right now. Many of us are working from home, worried about our friends and loved ones, and wondering whether we have entered a new normal. Many others are sacrificing their own safety to care for those in need. All of us at Abbott & Kindermann, Inc., want to thank you for your commitment to us, our friendships that have been built over the years, and most of all, your sacrifice to protect our communities. Together we will succeed and be a stronger community for the effort.

Be Safe and Stay Healthy!

The A&K Team

For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

Save the Agoura Cornell Knoll v. City of Agoura Hills (2020) 2020 Cal.App. LEXIS 222

Kate Wolf, singer/songwriter, phrased it well in her song Here in California: “It’s an old familiar story. An old familiar rhyme.” The familiar story in this blog is that of the fair argument standard, and the difficulty faced by the lead agency when defending a negative declaration or mitigated negative declaration. The facts involve a relatively small project on 8.2 acres, and the developer’s plan was to consolidate 24 parcels into two lots, with a mixed-use project on 6.23 acres and the balance of 1.98 acres as an open space lot. Most of the site was covered by a specific plan adopted in 2008, the balance noted as a Significant Ecological Area. The City Council approved the project based upon a negative declaration following an appeal from the planning commission approval. The trial court ruled against the lead agency and developer (Gelfand) based upon CEQA claims and violation of the City oak tree ordinance. The court of appeal in a very detailed decision covering several substantive and procedural issues, affirmed the trial court’s judgment.

Tribal Cultural Resources. In prior studies, a portion of the project site had been identified as a significant heritage resource, and prior consultants believed that the site met the requirements for inclusion in the California Register of Historic Resources. The negative declaration included three mitigation measures to reduce impacts to less-than-significant levels: (i) CS-CR-1 (monitoring during construction with an action plan to be developed based upon resources which are discovered), (ii) CS-CR-2 (notification steps if human remains discovered), and (iii) CS-CR-3 (excavation program if the site cannot be avoided). On appeal, the issues were (1) whether the City properly consulted with the Tribe with respect to tribal cultural resources (“TCRs”), and (2) the sufficiency of CS-CR-3. (The appellate decision does not address the consultation issue any further than to note that there had been exhaustion of administrative remedies.)

As to the merits of the mitigation measures, the appellate court faulted the City because (1) the extent of the resource site had never been established, (2) the response plan if resources were discovered was improperly deferred and was not tied to a performance standard, and (3) there was competent evidence of a fair argument by an expert that the project would destroy the cultural resource. In response to the same expert’s conclusion that the data recovery program would be expensive, the court ventured into unchartered waters concluding  that the negative declaration failed to assess the feasibility of the data recovery program required as part of Mitigation Measure CS-CR-3. (In this author’s opinion, this evaluation is not required.) All of these facts undermined the conclusion that impacts would be mitigated to a less than significant level.

Sensitive Plant Species. The negative declaration included mitigation for impacts on sensitive plant species. CS-Bio-1 required surveys for two species in advance of grading and replanting requirements. The appellate court concluded that there was substantial evidence of a fair argument of potential impacts because (1) a letter from California Department of Fish and Wildlife indicated that the studies relied upon were “outdated,” and (2) the most recent study was during a drought period, and the department recommended additional studies. The appellate court concluded that there was no substantial evidence that the additional studies could not have been performed. Additionally, CDFW also questioned the success of restoration planting for the two species, and a previous study had noted that most of the attempts to re-establish the plants had failed. The court also concluded that there was improper deferral as there was no standard identified to determine if avoidance was infeasible and that there was no detail about what the maintenance plan actions would entail.

As to a third plant, a special status species, the appellate court also found that the administrative record contained sufficient evidence to support a fair argument that mitigation through onsite preservation or offsite restoration may not succeed, and therefore there may be a significant impact.

CS-Bio-2 dealt with the location of the key plants in areas of firebreaks. However, the mitigation strategy was only crafted to address plant protection initially during construction, and not long term. The CDFW letter expressed concern for the disruption of the plant species (although not in very emphatic terms) and this letter was sufficient to provide the required evidence in support of a fair argument.

Oaks. The site included a number of oak trees and scrub oak habitat, and the project would require significant oak and habitat removal. The appellate court concluded that the mitigation measures were insufficient, and that there was substantial evidence of a fair argument as to potential impacts. As to the oaks retained on site, there was testimony that site grading could have an adverse effect on the subsurface water flow to the oaks, jeopardizing the trees according to the appellant’s consultant, a point also confirmed by the City’s own consultant. Additionally, there was substantial evidence of a fair argument that replanting, as one of the mitigation options, had not been demonstrated as successful in recreating oak woodlands. Finally, allowed mitigation included payment into an in lieu fund. The court rejected this mitigation option as the negative declaration did not specify the fees to be paid, the number of trees to be planted offsite or any analysis of the feasibility of an offsite mitigation program. (It appears that the City’s fee program had not gone through its own CEQA review.)

Exhaustion of Administrative Remedies. On appeal, City and developer vigorously argued that the issues raised in court had not been raised during the administrative proceeding, leading to a defense of failure to exhaust administrative remedies. This is a fact intense inquiry, but for each argument, the Court of Appeal found record of sufficient objections during the project review process to satisfy the exhaustion requirement.

Standing. On appeal, the City and developer argued that there was no evidence that the petitioner, or a member of the organization had objected to the project, and that the amended pleading which added California Native Plant Society as a petitioner occurred after the expiration of the statute of limitations. Thus, argued the City/developer, the case should be dismissed. However, this defense was not raised at the trial court, but only included in the developer’s reply brief. In these circumstances, the argument was considered to be waived.

Attorneys Fees (Code of Civil Procedure §1021.5). The trial court awarded the opponents $142,148 in fees and costs (the opponents sought nearly $340,000), and allocated one half of the liability to the City and the balance to the developer (personally) and the partnership, jointly and severally. On appeal, the appellants argued that the petitioners were not entitled to any award on the basis that a copy of the petition had not been timely served on the California Attorney General. (See Public Resources Code §21167.7.)  A prior decision had reached that conclusion. (Schwartz v. City of Rosemead (1984) 155 Cal.App.3d 547.) However, this court found the facts to be distinguishable (in Schwartz, the service was not accomplished until right before the hearing on the merits. Here, the service was well in advance of the court hearing, leaving the Attorney General ample time to participate in the litigation.)

The court of appeal also affirmed the developer’s personal liability. The developer Gelfand was an officer of the corporation which served as the general partner in the limited partnership. Gelfand had been listed as the applicant in the notice of determination as did the resolutions of approval. Additionally, there was evidence that Gelfand had more of an interest in the property than just serving as a corporate officer, supporting the conclusion that Gelfand had a personal interest in the project and outcome and that he was holding himself out as “a property owner and/or project applicant.” In these circumstances, the trial court did not err in finding Gelfand and the corporation general partner as jointly and severally liable for one half of the award. (Obviously, applicants would do well to follow more disciplined communication practices when communicating with the city or county as part of the application process.)

As I started this blog with a song excerpt, so I will conclude with one as well, recognizing that Kenny Rogers just passed away last week. “Know when to walk away, know when to run.” Who knew he was singing about negative declarations?

William Abbott is Of Counsel at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

By Diane Kindermann and Kristen Kortick

United States v. California, 2020 U.S. Dist. LEXIS 43422 (CA E.D. Ct., March 12, 2020)

In October 2019, the United States government sought declaratory and injunctive relief against California, Quebec and WCI, Inc. for violations of the Treaty Clause, Compact Clause, and Foreign Commerce Clause of the U.S. Constitution resulting from the partnership between each entity to trade Cap-and-Trade credits between each entity. Plaintiff and defendants filed cross summary judgment motions for the Treaty and Compact Clause claims.

Treaty Clause Claim:

The United States’ claim involving violations of the Treaty Clause related to the agreement between California and Quebec, specifically arguing California entered into a treaty, which would violate the Treaty Clause of the U.S. Constitution. The Treaty Clause states, “no state shall enter into any Treaty, Alliance, or Confederation.” (U.S. Constitution, Article 1, §10, cl. 1.) The Court noted, the Constitution does not define the word “treaty” nor are there records from the Constitutional Convention defining “treaty,” but that past case law held that not all agreements are treaties “violative of the Constitution.” The United States argued that the “emissions treaty” violated the Treaty Clause because it is binding two government jurisdictions to commercial activity.” Defendants responded that the agreement between the parties did not constitute a treaty and merely expressed the parties’ good faith agreement to follow similar communications and collaborative protocols between their two separate programs. Defendants further contended that the agreement did not preclude each actor from making changes to their regulatory structures or withdrawing altogether.

The Court held that because there is no firm case law or statutory authority specifying whether or not the agreement between the parties is in fact a treaty, the Court would grant summary judgment for Defendants on the Treaty Clause claim. The Court noted that it was clear that California and Quebec made their own protocols for their Cap-and-Trade programs and agreed in good faith to make their programs complimentary to one another. But it reasoned that although the parties benefitted from the agreement, it was not a “general commercial” privilege prohibited by the Treaty Clause. Thus, the Court found that the United States failed to meet its burden proving there was an issue of material fact over whether or not the Treaty Clause was violated by Defendants and granted summary judgement for Defendants on this claim.

The Compact Clause:

The United States argued that the parties violated the Compact Clause, because as stated in the Constitution, “no State shall, without the Consent of Congress enter into any Agreement or Compact with another State, or with a foreign Power.” (U.S. Constitution, Art. 1, § 10.) The Supreme Court limited the application of the Compact Clause to agreements that encroach on federal sovereignty. The Court found that the agreement does not conflict with federal sovereignty, because it does not conflict with any existing statutes or regulations. It further held that there is no regional limitation for Defendants to engage other federal programs. Lastly, the Court reasoned that because California retains the power to modify or withdraw from the agreement, the parties were insufficiently bound by an agreement that conflicts with the Compact Clause of the U.S. Constitution. Thus, in light of the flexibility of the Agreement and California’s ability to modify it to comport with federal regulations and statutes, there was no conflict with the Compact Clause, the Court granted summary judgment to Defendants on the Compact Clause claim.

The Court granted summary judgment to Defendants on the first and second causes of action of the United States’ complaint and will move forward with the remainder of the causes of action: violations of the Foreign Commerce Clause and the Foreign Affairs Doctrine.

Diane Kindermann is a shareholder at Abbott and Kindermann, Inc. Kristen Kortick is a Law Clerk at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

King & Gardiner Farms, LLC v. County of Kern (2020) 2020 Cal.App. LEXIS 161

In a long and detailed opinion from the Fifth District Court of Appeal, the appellate court considered a multitude of CEQA claims over the County’s environmental impact report adoption in support of an ordinance establishing streamlined processing procedures for eligible oil and gas exploration and production activities in Kern County. The trial court ruled in favor of petitioners, finding deficiencies in the EIR related to agricultural impacts and impacts of road paving as mitigation for dust and air quality. Plaintiffs appealed.

The issue had already spawned a separate bifurcated decision on land use claims alleging the ordinance violated the equal protection and due process clauses of the California and U.S. Constitutions. The decision rejecting the challenges was issued in November 2019 in Vaquero Energy, Inc. v. County of Kern (2019) 42 Cal.App.5th 312 (See p. 44 of CEQA/Land Use Update). While only “CERTIFIED FOR PARTIAL PUBLICATION,” the published portion of the King & Gardiner Farms decision still addressed numerous topics that CEQA practitioners should consider when preparing EIRs, many of which could have broad applicability. The most noteworthy holdings addressed (1) conservation easements as agricultural mitigation; and (2) the evidence required to support the use of mitigation that requires an action to be taken “to the extent feasible.” As to the former, the court concluded that the less than significant impact conclusion for the loss of agricultural land was unsupported, reasoning that conservation easements do not actually reduce the amount of agricultural land lost due to the project. As for the latter, the court found that “to the extent feasible” was more of a goal statement than a commitment to mitigation and that agencies have a duty to demonstrate the mitigation will have at least some reduction of the impact to be deemed mitigation. The court explained that the agency’s finding that the mitigation “‘could’ [reduce water supply impacts] suggests the possibility of reductions without eliminating the possibility there might not be any reductions”:

  • Water Supply
    • Applying the substantial evidence standard of review, the court upheld the agency’s analysis of water supply impacts based on three large subareas of the county as supported by substantial evidence, rejecting the more localized units approach pushed by petitioner as speculative in light of the state of affairs in the SGMA process as of the time of the EIR was released.
  • Drought Conditions Impact on Water Supply
    • Finding the issue a question of law, the court held that the discussion of drought impacts on water supply in the WSA “adequately facilitated informed agency decisionmaking and informed public participation.” It reasoned that the discussion adequately described the drought’s impact on water supplies and overdraft conditions, the increased effect on future supply and demand, and the uncertainty of projections.
  • Environmental Setting
    • The court held the EIR did not violate CEQA Guidelines sections 15064 or 15125, because the EIR used the information available as of the date of the release of the NOP (August 30, 2013) to describe the water supply conditions, including drought information.
  • Recirculation
    • The court held that updated drought information post-NOP release did not constitute significant new information requiring recirculation.
  • Adequacy of CEQA Findings
    • Applying the substantial evidence test, the court held that Petitioners failed to carry its burden to establish a finding is not supported by substantial evidence, and affirmed that the public had a meaningful opportunity to comment on the project’s potential impact on water supply.
  • Mitigation Measures for Water Supply
    • The court rejected several mitigation measures as improperly deferred mitigation for failure to adequately commit to implementation and a lack of performance measures.
  • MM4.17-2 – Part 1 of the measure required applicants to “increase or maximize the reuse of produced water and reduce or minimize the use of municipal and industrial (“M&I”) water to the extent feasible.” The court held that county had committed to a mitigation goal, but that a goal is not a performance standard. It reasoned that the phrase “to the extent feasible” only “addresses whether a measure would be employed, but does not address the performance of the measure.”
  • MM4.17-2 – Part 2 of the measure required the “five biggest oil industry users of M&I water” to work together to implement “a plan identifying new measures to reduce municipal and industrial water use by 2020.” The court held that the county failed to commit to implementation of the measures included in the “plan” which assumed that the oil industry users would work together or even be able to come to an agreement. The court also held that the measure was defective “delayed implementation,” because the project was approved in 2015, but the plan would not be ready, if at all, until 2020.
  • MM4.17-2 – The court rejected petitioner’s argument that the measure “did not identify who will test and monitor compliance,” reasoning that the MMRP clearly identified that the applicant would be the responsible party with verification by county staff.
  • MM4.17-3 – The measure required applicants to “work with the County to integrate best practices in the oil and gas industry to encourage the reuse of produced water from oil and gas fields” for other uses such as agricultural irrigation and groundwater recharge in the basin’s Groundwater Sustainability Plan. It also set a water reuse goal of 30,000 acre-feet per year. The court held the mitigation was defective “delayed implementation” because it relied on a GSP that was not proposed to be completed until 2020. It further held that setting a goal of 30,000 acre-feet per year of water reuse was laudable, but not an enforceable commitment.
  • MM4.17-4 – This measure required the applicant to “work with the county on the GSP” to increase use of reclaimed water and reduce use of M&I water. The court held that this measure suffered from similar defects regarding the failure to establish a performance standard, as well as delayed implementation due to the timeline for completion of the GSP.
  • CEQA Mitigation Findings
    • The court rejected County’s argument that there was no CEQA violation because the mitigation measures were recognized as having uncertain effectiveness, and the county ultimately concluded that the impacts were significant and unavoidable. The court noted that the California Supreme Court in Sierra Club v. County of Fresno established that mitigation measures “must be at least partially effective, even if they cannot mitigate significant impacts to a less than significant level.” Applying this principle under the substantial evidence standard, the court held that the Board’s findings were ambiguous as to whether the measures were at least partially effective, because the finding described how the county would encourage the increased use of produced water and the reduction of M&I water, but acknowledged that the extent of any increase or decrease “is uncertain.” The court also pointed to a separate finding that stated that implementation “could reduce water supply impacts, but…complex water variables that fall outside the scope of the County’s jurisdiction or control under CEQA,” which the court reasoned had suggested the possibility of a reduction, but failed to eliminate that one possibility was no reduction.
    • The court held that the findings could be reasonably interpreted to affirm that the county properly found that all feasible mitigation measures had been adopted.
  • Statement of Overriding Considerations
    • The court rejected the County’s argument that the adoption of a statement of overriding considerations redressed the problems associated with the uncertain mitigation measures. It reasoned that the mitigation measures rendered the EIR as an inadequate informational document, and a statement of overriding considerations can only be adopted to address significant and unavoidable impacts identified in an adequate EIR. 
  • Mitigation Measure for Agricultural Impacts
    • The court upheld petitioner’s argument that a mitigation measure that provided four options for an applicant to mitigate for agricultural land lost due to the project did not support the conclusion that the impacts were reduced to a less than significant level. It reasoned that even though one option would actually offset the loss of agricultural land, the restoration of agricultural lands through removal of legacy oil and gas production equipment, the other measures would not actually offset anything, including (i) conservation easements, (ii) mitigation banks where there is no evidence of their current existence, or (iii) the reliance on a mitigation program adopted by the County which does not exist.
    • The court held that the EIR finding that the mitigation would reduce the impacts on agricultural land to less than significant was not supported by substantial evidence, because the mitigation included options, selected by the applicant, which could not demonstrate an actual offset for the loss of agricultural land due to the project, including the use of conservation easements.
    • The court held that the county failed to consider the proposal to use clustering of oil and gas infrastructure as mitigation in its responses to comments, because the response only considered it in relation to General Plan policies and a rejected alternative which considered the potential for clustering, and the response failed to provide a reasoned analysis of why clustering as a potential mitigation measure was infeasible.
  • Noise Impact Thresholds
    • Applying the principles in Berkeley Jets and Keep Our Mountains Quiet, the court held that the county’s use of compliance with the General Plan’s maximum noise standard as a threshold of significance was improper, because it fails to provide a complete and reasonable method of evaluating whether a noise increase is considered substantial even when the cumulative noise falls below the General Plan standard.
  • Remedies
    • The court rejected the County’s request to leave the ordinance in effect while addressing the CEQA issues, finding that the case before the court was not “extraordinary,” because unlike the California Air Resources Board’s Low Carbon Fuel Standard regulations in POET, where the purpose of the program was to protect the environment, the purpose of the ordinance was the acceleration of oil and gas development including its economic benefits.
  • Baseline for Revised EIR
    • The court held that the baseline for evaluating water supply issues must be brought up to date, given that many of the uncertainties that existed at the time the Draft EIR was issued could be lessened due to the amount of new information that is now available.

Daniel Cucchi is Senior Associate at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

Environmental Council of Sacramento v. County of Sacramento (2020) 2020 Cal.App. LEXIS 175

The County of Sacramento approved a master planned community, a feature of which was a proposed university. Opponents filed a CEQA challenge arguing: (1) the uncertainty over whether the university would be constructed invalidated the project description and impact analyses for traffic, air quality and climate change; (2) the project was inconsistent with the local Sustainable Communities Strategy; and (3) the agency’s failure to adopt feasible mitigation measures. The trial court and court of appeal upheld the master plan approval, addressing several issues:

Project Description.  The appellants argued that uncertainty regarding the university resulted in an improper project description. The original development application reflected a California State University as the future education facility, but the Board of Trustees withdrew. The project was approved without an educational commitment. The project was conditioned to freeze the university campus site for 30 years, and the developer was required to fund a university escrow account. The administrative proceedings included communications speaking to the need for additional educational facilities and the desirability of this location for this purpose. Based upon these facts, the court held that it was not unreasonable for the County to include the university as part of the project description. Stated another way, it was not reasonably foreseeable that a substitute land use would occur in lieu of the university, and an EIR is only required to evaluate reasonably foreseeable activities. Thus, the opponents failed to present “credible and substantial evidence” that the university was an illusory land use.

Air Quality.  The appellants made a related argument that as the university was illusory, certain impact analyses and conclusions were necessarily erroneous. Regarding air quality, the mitigation measures had been revised to achieve the same air quality mitigation levels even in the event of a change in land use for the university, thus there was no substantial increase in impact levels (and no recirculation required).  Moreover, the project impact was already determined to significantly exceed the threshold of significance levels that a reduction in mitigation would not ultimately lead to a substantial increase in severity of the impact. Finally, the court noted that in any case the resultant reduction in the level of mitigation is not equivalent to an increase in impacts for recirculation purposes.

Climate Change.  As with air quality, the planning documents were amended to carry forward the metric tons per capita limit for GHG emissions, with or without the university.  Thus, the environmental document remained valid even in the absence of the university component.

Traffic.  Appellants also challenged the traffic analysis in the event the university was not developed.  However, the court held that this was adequately addressed in the FEIR as a response to comment which noted that non-automotive trips associated with the university had only limited effect on overall mode share and that elimination of the university would reduce daily trips by approximately 9,000.

Sustainable Community Strategies.  The appellate court rejected the inconsistency argument on the basis that appellants failed to exhaust administrative remedies and nothing in SB 375 required consistency review as part of the CEQA process.

Feasible Mitigation Measures.  Appellants argued that phasing the project would be a feasible mitigation measure. This was interpreted by the trial court as not building some, or all of the project until a university was built. The Board had adopted findings that suggested mitigation measures not incorporated into the project were rejected in part because the measures would interfere with attaining the economic, social and other benefits of the project which the “Board finds outweighs the unmitigated impacts of the Project.” The appellate court concluded that the appellants had failed to meet their burden of demonstration the feasibility of the phasing mitigation measure.

 William Abbott is Of Counsel at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

Ranch at the Falls LLC v. O’Neal (2019) 38 Cal.App.5th 155

In Ranch at the Falls LLC v. O’Neal (2019) 38 Cal.App.5th 155, a plaintiff ranch owner sought to quiet title to two claimed easements within residential gated communities in which plaintiff had no ownership interest. Among other things, the trial court held that plaintiff was entitled to an equitable easement over all the private streets in an adjacent gated community (Indian Springs).  Plaintiff had access by a different route from the east that included an undisputed right to travel over one now-private street (Iverson Road) in Indian Springs and other now-private streets in a third gated community (Indian Falls).  However, plaintiff found that route to the ranch from the east as unacceptable because it requires use of an old and narrow bridge on Fern Ann Hills Road.  While that bridge is not part of the three gated communities, the plaintiff considered the bridge too dangerous. The Court of Appeal for the Second Appellate District held that the trial court erred and reversed the judgment, including the determination regarding the equitable easement.

“‘For a trial court to exercise its discretion to … grant an equitable easement, “three factors must be present. First, the [encroacher] must be innocent. That is, his or her encroachment must not be willful or negligent. The court should consider the parties’ conduct to determine who is responsible for the dispute. Second, unless the rights of the public would be harmed, the court should [stop the encroachment] if the [burdened landowner] ‘will suffer irreparable injury … regardless of the injury to [the encroacher].’ Third, the hardship to the [encroacher] from [ordering removal of the encroachment] [‘]must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment and this fact must clearly appear in the evidence and must be proved by the defendant.’” “Unless all three prerequisites are established, a court lacks the discretion to grant an equitable easement.”’” (Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1027-1028.)

Of those three factors, the “willful or negligent” factor is “paramount” (Hirshfield v. Schwartz (2001) 91 Cal.App.4th 749, 769) and “the most important” factor that will determine whether a court will grant an equitable easement.  (Hansen v. Sandridge Partners, supra, 22 Cal.App.5th at p. 1028.) “While the resolution of factual disputes is left to the trial court, appellate courts may determine whether the elements of an equitable easement have been established by the facts as a matter of law.” (Ibid.)  “‘The question whether the defendant’s conduct is so egregious as to be willful or whether the quantum of the defendant’s negligence is so great as to justify an injunction is a matter best left to the sound discretion of the trial court.’”  (Hinrichs v. Melton (2017) 11 Cal.App.5th 516, 523.)

In Ranch at the Falls, the trial court failed to discuss any of the three factors in its statement of decision. In a subsequent ruling denying third party movants’ motion to vacate the judgment, the trial court stated that its finding of an equitable easement was proper because “the parties’ relative hardships were balanced.”  Specifically, the trial court stated that plaintiff “ha[d] shown that due to the condition of a certain bridge in the project, it would have been inequitable to Plaintiffs to not find an easement.” The trial court added that the homeowners associations for the adjacent gated communities did not demonstrate “any comparable hardship” at trial, “given that their right to use the Private Streets has not been diminished.”  However, that is not the proper balancing test to apply in the equitable easement context (see Shoen v. Zacarias (2015) 237 Cal.App.4th 16, 19), and it completely failed to evaluate whether plaintiff’s conduct was innocent, rather than willful or negligent.

Plaintiff’s claim to innocence is that she “worked two years and sought to expand the Fern Ann Falls bridge by seeking to have a bond measure passed so that money could be raised in order to allow for the bridge to be improved.”  Thus, plaintiff contended that she “attempted to do equity,” but was prevented from doing so, because after she had collected enough signatures, the County of Los Angeles told her that “it’s no longer eligible, because the community has been privatized.”  However, that evidence did not establish plaintiff’s innocent use of the private streets of Indian Springs.  Plaintiff knew when she purchased the ranch property that her access involved use of the old bridge on Fern Ann Falls Road.  Plaintiff testified that “[w]hen I bought the property in 1996, the realtor told me that everybody wanted to chip in to fix that bridge. Because I wasn’t going to buy it because of the bridge. But then he assured me, we have two accesses and everyone wants to fix that bridge. And I quickly found out that nobody wanted to fix the bridge.” Plaintiff testified at trial that she “started using a back route as soon as [she] purchased the ranch property,” but she testified at her deposition that, when she bought the ranch property, she “didn’t realize there was another way [other than over the bridge]. So once I found the other way to go, I stopped using the bridge.” She testified it was “only when [she] discovered the back route that delivery companies stopped using the bridge.”  The Court of Appeal concluded that plaintiff did not establish the “innocence” factor that is required for an equitable easement.  Plaintiff knew from the day she purchased the ranch – at a time when Indian Oaks (over which she must pass to reach the ranch over her preferred route) was completely undeveloped – about the nature of the Iverson Road access and the shortcomings of the bridge.

Accordingly, the court held that “[t]here can be no equitable easement in these circumstances.”

Glen Hansen is a Senior Counsel 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, or 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.

Juliana v. United States, 2020 U.S. App. LEXIS 1579 (9th Cir., January 17, 2020)

A group of 21 individuals aged 8-19, an environmental organization, and a guardian for plaintiff “future generations” filed a lawsuit in the U.S. District Court in Oregon to challenge 50 years of fossil fuel policies of the United States Government.  Plaintiffs alleged that the Federal Government’s actions and inactions are a substantial cause in the scope and severity of climate change and will lead to substantial harm to “future generations.”  Among the wide-reaching U.S. programs and policies identified in this lawsuit were:

  • The Bureau of Land Management’s authorization of leases for 107 coal tracts and 95,000 oil and gas wells;
  • The Export-Import Bank’s provision of $14.8 billion for overseas petroleum projects;
  • The Department of Energy’s approval of over 2 million barrels of crude oil imports;
  • The Department of Agriculture’s approval of timber cutting on federal land;
  • The undervaluing of royalty rates for federal leasing;
  • Tax subsidies for purchasing fuel-inefficient sport-utility vehicles;
  • The “intangible drilling costs” and “percentage depletion allowance” tax code provisions; and
  • The government’s use of fossil fuels to power its own buildings and vehicles.

Plaintiffs did not allege that the Federal Government was violating any statute or regulation.  Nor did they assert the denial of a procedural right.  Also, they did not seek damages under the Federal Tort Claims Act.  Rather, plaintiffs sought declaratory and injunctive relief under claims that allege (a) a violation of the Equal Protection Clause of the Fifth Amendment; (b) a substantive constitutional right to a “climate system capable of sustaining human life” under the Due Process Clause of the Fifth Amendment; (c) an implicit right to a stable climate under the Ninth Amendment; and (d) a violation of the federal public trust doctrine.

The U.S. District Court for the District of Oregon granted the Federal Government’s Motion For Summary Judgment as to the Ninth Amendment claim, and as to a part of the equal protection claim and dismissed President Trump as a defendant.  As to every other claim, the District Court denied the Motion For Summary Judgment brought by the U.S. An interlocutory appeal was taken to the Ninth Circuit.

On January 17, 2020, in a 2-1 decision by a panel of judges that were all appointed by President Obama, the Ninth Circuit held that the Motion For Summary Judgment should be granted and the case dismissed. The majority opinion began this way:

In the mid-1960s, a popular song warned that we were “on the eve of destruction.”  The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse.

As to the merits of the plaintiffs’ claims, the Court cited conflicting case law and admitted:  “Reasonable jurists can disagree about whether the asserted constitutional right exists.”  However, the merits of plaintiffs’ constitutional claims were not what the Ninth Circuit’s opinion turned on.  The court stated:

The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.”

The majority opinion found that these individual plaintiffs met the first element of Article III standing.  Plaintiffs showed concrete and particularized injuries, such as water scarcity and rising sea levels.

Also, the Court also held that plaintiffs were able to show the second requirement for standing:  The Court stated:

The plaintiffs’ alleged injuries are caused by carbon emissions from fossil fuel production, extraction, and transportation. A significant portion of those emissions occur in this country; the United States accounted for over 25% of worldwide emissions from 1850 to 2012, and currently accounts for about 15%. And, the plaintiffs’ evidence shows that federal subsidies and leases have increased those emissions. About 25% of fossil fuels extracted in the United States come from federal waters and lands, an activity that requires authorization from the federal government.

Thus, there was at least a genuine factual dispute as to whether the federal government’s actions and policies over the last 50 years were a substantial factor in causing the plaintiffs’ injuries.

But the Court found that the third element for Article III standing was not met in this case.  Plaintiffs’ alleged injuries are not likely redressable by a favorable judicial decision.  The Court described the nature of the injunction that plaintiffs were seeking in these words:

The crux of the plaintiffs’ requested remedy is an injunction requiring the government not only to cease permitting, authorizing, and subsidizing fossil fuel use, but also to prepare a plan subject to judicial approval to draw down harmful emissions. The plaintiffs thus seek not only to enjoin the Executive from exercising discretionary authority expressly granted by Congress, but also to enjoin Congress from exercising power expressly granted by the Constitution over public lands.

The Court noted that even if the challenged programs were stopped, that would not solve the problem:

Indeed, the plaintiffs’ experts make plain that reducing the global consequences of climate change demands much more than cessation of the government’s promotion of fossil fuels. Rather, these experts opine that such a result calls for no less than a fundamental transformation of this country’s energy system, if not that of the industrialized world.

The Court stated:  “Reluctantly, we conclude that such relief is beyond our constitutional power.”

The majority rejected the position of the dissenting Judge, and explained why judicial relief was not available:

There is much to recommend the adoption of a comprehensive scheme to decrease fossil fuel emissions and combat climate change, both as a policy matter in general and a matter of national survival in particular. But it is beyond the power of an Article III court to order, design, supervise, or implement the plaintiffs’ requested remedial plan. As the opinions of their experts make plain, any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.

The Ninth Circuit was bound by the reasoning of the U.S. Supreme Court’s recent decision in Rucho v. Common Cause, 139 S.Ct. 2484 (2019) regarding the non-actionable political gerrymandering claims, and the need to have standards to guide courts in the exercise of their discretion.  In this climate change context, there were no such standards.  No court could sustain or enforce a plan required of the Federal Government that is sufficient to remediate the claimed constitutional violation of the plaintiff’s right to “a climate system capable of sustaining human life.”

Therefore, the Ninth Circuit panel concluded that “the plaintiffs’ impressive case for redress” must be presented to the political branches of government. The Court explained:  “That the other branches [of government] may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability to step into their shoes.”  In response to the dissent’s argument that this suit seeks to enforce “the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction,” majority concluded:  “Not every problem posing a threat – even a clear and present danger – to the American Experiment can be solved by federal judges.”

Lawyers for the plaintiffs commented:  “We will be asking the full Ninth Circuit to review the determination that federal courts can do nothing to address an admitted constitutional violation.”  (See https://www.mercurynews.com/2020/01/17/appeals-court-tosses-out-kids-lawsuit-against-u-s-over-climate-change/ (last accessed January 20, 2020).)

Glen Hansen is senior counsel at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.

Reserve your seat for one of three seminars taking place in early 2020.

In January 2020 Abbott & Kindermann, Inc. will present its 19th annual educational program for clients and colleagues interested in current land use, environmental, and real estate issues affecting commercial and residential development, agriculture, real estate transactions, easements, mining and the construction materials production industry.

A summary of 2019 case law and legislative updates includes the following hot topics for 2020:

  • Air Quality and Climate Change: including CEQA Guidelines and Mandatory Reporting
  • Mining
  • Updating Land Use Entitlements
  • Endangered Species
  • Water Quality and Wetlands
  • Water Rights and Supply
  • Cultural Resources
  • Renewable Energy
  • Environmental Enforcement
  • Hazardous Substance Control and Cleanup
  • Timber Resources
  • CEQA:  Exemptions, Baseline, Greenhouse Gases and Climate Change
  • CEQA Litigation
  • Real Estate Acquisition and Development

Abbott & Kindermann, Inc. will present its annual program at three locations: Redding, Modesto and Sacramento.  Details for the seminars are below.  We hope you can join us and we look forward to seeing you there.

Redding Conference  (To Register for the Redding Location Click Here)

Date: Thursday, January 16, 2020

Location: Hilton Garden Inn Redding, 5050 Bechelli Lane, Redding, CA

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Modesto Conference  (To Register for the Modesto Location Click Here)

Date: Thursday, January 23, 2020

Location: Double Tree Hotel Modesto, 1150 Ninth Street, Modesto, CA

Registration: 12:30 p.m. – 1:00 p.m.

Program: 1:00 p.m. – 4:00 p.m.

Sacramento Conference  (To Register for the Sacramento Location Click Here)

Date: Thursday, January 30, 2020

Location: Sacramento Hilton Arden West, 2200 Harvard Street, Sacramento, CA

Registration: 8:30 a.m. – 9:00 a.m. with continental breakfast

Program: 9:00 a.m. – 12:00 noon

The registration fee for the program is $95.00. Please register early to reserve your seat. Select the links above to see registration details for each location, as they differ.

MCLE & APA credits are available at this time.

Please call (916) 456-9595 with any questions.

Welcome to Abbott & Kindermann’s 2019 4th Quarter cumulative CEQA update. This summary provides links to more in-depth case write-ups on the firm’s blog. The case names of the newest decisions start with Section 3 and are denoted by bold italic fonts.

1.    2019 CEQA UPDATE

To read the 2018 cumulative CEQA review, click here: https://blog.aklandlaw.com/2019/01/articles/ceqa/2018-ceqa-annual-review/

2.    CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 2 CEQA case pending at the California Supreme Court. The cases and the Court’s summaries are as follows:

Protecting Our Water & Environmental Resources v. Stanislaus County, S251709. (F073634; nonpublished opinion; Stanislaus County Superior Court; 2006153.) Petition for review after the Court of      Appeal reversed the judgment in a civil action. This case presents the following issue: Is the issuance of a well permit pursuant to state groundwater well-drilling standards a discretionary decision      subject to review under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) or a ministerial action not subject to review?

County of Butte v. Department of Water Resources, S258574. (C071785; 39 Cal.App.5th 708; Yolo County Superior Court; CVCV091258.) Petition for review after the Court of Appeal dismissed an appeal in an action for writ of administrative mandate. This case presents the following issues: (1) To what extent does the Federal Power Act (16 U.S.C. § 791a et seq.) preempt application of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) when the state is acting on its own behalf and exercising its discretion in deciding to pursue licensing for a hydroelectric dam project? (2) Does the Federal Power Act preempt state court challenges to an environmental impact report prepared under the California Environmental Quality Act in order to comply with the federal water quality certification under the federal Clean Water Act?

3.    UPDATE

A. Is Inaction a Project?

Lake Norconian Club Foundation v. Department of Corrections & Rehabilitation (2019) 39 Cal.App.5th 1044

The Foundation filed suit against the Department for failure to comply with CEQA, arguing that the Department’s inaction to maintain and repair the roof of a historic former hotel that it owned was an agency decision subject to CEQA. The trial court held that the Department’s failure to seek or allocate funding to maintain the hotel was a project, but denied the petition concluding that the Foundation’s claim was barred by the statute of limitations. The Foundation appealed and the appellate court affirmed the judgment though it found that the Department’s inaction was not a project subject to CEQA. Contrasting the CEQA statutes with NEPA, which has supported some instances where inaction could provide grounds for compliance with NEPA if the agency failed to act when it had a mandatory duty to do so, the court noted that no similar provisions existed under CEQA. It further reasoned that even if CEQA did require analysis of such inaction, there is no statute or regulation imposing a mandatory duty on the Department to maintain the former hotel.

B. EXEMPTIONS

Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171

The City of San Diego amended its zoning code to permit cannabis enterprises as a use within a number of zoning districts in the City. The ordinance also had the effect of capping the number of facilities. As part of the code amendment, the City concluded that the action was not a “project” for CEQA purposes, and accordingly did not prepare any formal CEQA documentation. Petitioner challenged the ordinance on CEQA grounds. The trial court denied relief and at the court of appeal, Petitioner argued that Public Resources Code §21080 provided as a matter of law that a zoning ordinance was a project. The court of appeal rejected that argument, reaching a contrary conclusion to a similar holding in Rominger v. County of Colusa (2014) 229 Cal.App.4th 690.  The Supreme Court granted review to resolve the conflicting appellate decisions.

The Supreme Court first addressed the potential conflict between Public Resources code §§ 21065 and 21080. The Court ultimately concluded that zoning ordinances were not “projects” per se, notwithstanding the suggestion in § 21080 to the contrary.

The Supreme Court then addressed whether the City reached the correct conclusion when concluding that the ordinance was not a project. On this issue, the Supreme Court reversed. It held that the obligation of the lead agency in applying the commonsense exemption is to consider “the potential environmental effects of undertaking the type of activity proposed, ‘without regard to whether the activity will actually have environmental impact,’… a project is a CEQA project if, by its general nature, is capable of causing a direct or reasonably foreseeable indirect physical change in the environment.” Union of Medical Marijuana Patients, citing Muzzy Ranch Co. v. Solano County Airport Land Use Commission (2007) 41 Cal.4th 372, 382. With respect to indirect effects, the lead agency should evaluate two scenarios. An indirect effect is not reasonably foreseeable if “there is no casual connection between the proposed activity and the suggested environmental change or if the postulated causal mechanism connecting the activity and the effect is so attenuated as to be ‘speculative.’” Union of Medical Marijuana Patients citing City of Livermore v. Local Agency Formation Com. (1986) 184 Cal.App.3d 531, 541-543. The Court then cited to examples: adoption of LAFCo policies permitting development outside of cities was a project (Id.) whereas the formation of a Mello-Roos district for the purposes of new school facilities was not a project as the causal connection was missing (Kaufman & Broad-South Bay, Inc. v. Morgan Hill Unified School District (1992) 9 Cal.App.4th 464).

The Court also noted that the required inquiry was somewhat theoretical, as factual records are rarely developed in circumstances involving the application of commonsense exemptions.  Applying the aforementioned criteria, the Court concluded the City’s ordinance had the potential for new uses to be established. This in turn created the potential for changed traffic patterns, a reasonably foreseeably indirect impact. Reinforcing the theoretical nature of the inquiry, the court added “the likely actual impact of an activity is not at issue in determining its status as a project.”

Holden v. City of San Diego (2019) ___ Cal.App.5th ___

In 2014 IDEA Enterprise submitted an application for the demolition of two existing single-family houses on adjacent parcels, and construction of seven detached condominium units on a site in the City’s North Park. The project was to occupy 42% of the site which is located on the hillside of a canyon with a 35 to 41 degree slope. Initially, the City told IDEA that the project did not comply with the minimum density under the General Plan (requiring at least 16 residential units), but in late 2015 City staff informed IDEA that the project could be approved with only 7 units due to the site’s environmental constraints. The City then issued a determination that the Project was categorically exempt from CEQA review under the Infill Exemption (CEQA Guidelines §15332). Petitioners argued that the project was not eligible for the exemption because the project did not meet the density requirements of the City’s general plan as required by the exemption. The trial court denied Petitioners’ petition for writ of mandate because the City’s determination that the project was consistent with the general plan density requirements was supported by substantial evidence found in the General Plan itself which incorporates community plan policies which anticipated subsequent modifications for site specific conditions, coupled with implementing hillside protection regulations that limits actual developable area of a parcel. Thus, the trial court found that a general plan amendment was not necessary to approve the project.

Petitioners’ appealed and the appellate court affirmed. The court of appeals held that great deference must be given to a public agency’s finding of consistency with its own General Plan. The court found that the extensive findings by the City Council show that it considered the General Plan, Community Plan, and the City’s steep hillside development regulations when approving the project, and in doing so balanced the competing interests such that they did not abuse their discretion by finding the project exempt from CEQA. Additionally, the court rejected Holden’s related assertion that the General Plan must be amended before the city may allow development of a site with less density than recommended in the General Plan because the Project complied with the General Plan, Community Plan and City’s development regulations. Therefore, the density recommended by the General Plan need not be rigidly followed.

Berkeley Hills Watershed Coalition v. City of Berkeley (2019) 31 Cal.App.5th 880

Real parties filed for approvals to construct three homes on contiguous parcels in the Berkeley hills. The City Board of Zoning Adjustment (“Board”) found that the proposed construction qualified for a CEQA Class 3 exemption, which allows for construction of new small structures of up to three single family residences in an urbanized area without environmental review. (CEQA Guidelines, § 15303.) Opponent Berkeley Hills Watershed Coalition (“Coalition”) appealed to the City Counsel, and the City Council upheld the Board’s decision. Thereafter, The Coalition filed suit contesting the Council’s decision adopting a categorical exemption and approving the project. At trial, opponents argued against the approval based upon: “1) the location exception under CEQA, 2) the unusual circumstances exception under the Guidelines, and 3) the City’s violation of the zoning requirements when they failed to require additional permits for a fifth bedroom on one of the parcels.” The trial court denied the Coalition’s petition for writ of mandate. The Coalition appealed, arguing applicability of the location exception to a CEQA exemption as well as its land use claim.

The appellate court first reiterated the rule from Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, for the “unusual circumstances exception.” A reviewing court applies the substantial evidence standard of review to determine if there are unusual circumstances, with deference to the determination made by the agency. If unusual circumstances are found, the court then applies the fair argument test to determine if there is a “reasonable possibility that the actions will have a significant effect on the environment” as a result of those unusual circumstances. The Court of Appeal then articulated a similar approach to application of the location exception, which provides that an activity ordinarily exempt might require environmental review because of locational considerations “where the project may impact on an environmental resource of hazardous or critical concern where designated, precisely mapped, and officially adopted pursuant to law by federal, state, or local agencies.” (CEQA Guidelines §15300.2(a).)

The Coalition argued that the mere existence of a potential landslide was sufficient evidence to make landslide areas “environmental resources of hazardous or critical concern.” The court disagreed, holding that a potential for earthquakes and landslides are “geological events…. and not resources.” The court further reasoned that the geotechnical report reflected a concern for economic loss to property and human lives, but not a sensitive resource, and as stated by the California Supreme Court in Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 473, “despite [CEQA’s evident concern with protecting the environment and human health, its relevant provisions are best read to focus almost entirely on how projects affect the environment;” not the other way around as urged by the Coalition.

As to the Coalition’s land use claim, the court upheld the trial court’s rejection of the Coalition’s claim which asserted that the project required another permit because of the addition of a fifth bedroom. It reasoned that, applying deference to the City’s interpretation of its own ordinances, a new use permit was already issued on the project for new construction. Requiring an additional permit for the project because of the addition of a single bedroom would be redundant. Further, the court held that a plain reading of the ordinance would still support the City’s approval action, as the subject ordinance implies a fifth bedroom would be in addition to a pre-existing structure, not  a new one such as involved in the instant case. As such, the Court of Appeal held that the trial court correctly denied relief on the third cause of action.

C. Negative Declarations

Sacramentans for Fair Planning v. City of Sacramento (2019) 37 Cal.App.5th 698

The City of Sacramento, a charter city, approved a fifteen-story mixed use project in its Midtown area, significantly in excess of its adopted height and FAR standards. This approval was based upon a general plan policy which stated, “The City may allow new development to exceed the maximum allowed FAR or density if it is determined that the project provides a significant community benefit.” When evaluating the project, staff identified many benefits associated with the project which “outweighs strict adherence to the General Plan’s FAR.” These benefits included a high level of design, implementation of the City’s targets for increasing households in its core, location in an infill location reducing reliance on personal vehicles, and lowered carbon emissions. The City conducted CEQA review based upon the sustainable communities environmental assessment (“SCEA”). The ensuing litigation challenged both the avoidance of the development limits of the general plan as well as the SCEA. Both the trial court and Court of Appeal upheld the City’s approval.

Appellant first argued that the City’s practice violated the requirement for zoning uniformity (Gov. code section 65852.) However, this code section did not apply to the City of Sacramento as it was a charter city. Appellant next argued that the City approval violated an obligation to maintain a uniformity by virtue of the Equal Protection and Due Process clauses of the 14th Amendment and California Constitution, along with a contract implied at law between property owners and the zoning authority. Acknowledging the very deferential standard of review when evaluating local land use approvals and the general plan policy, the Court found ample justification in support of the City’s actions. The detailed staff report served as the supporting rationale relied upon by the court.

Appellant also argued that the approval constituted spot zoning. The court rejected this claim, concluding that the zoning did not operate to create a limited zone surrounded by higher densities, nor did it preclude adjacent owners from achieving a similar benefit. Similarly, the Court of Appeal rejected the argument that there was an improper delegation of legislative authority to the Planning Commission. Pursuant to the City code, it was the city council which made the final determination. The community benefit standard was no less vague than the common public health, safety, and welfare standard which had upheld repeatedly against vagueness claims.

With respect to CEQA, Appellant challenged the City’s use of the SCEA, arguing that the MTP/SCS adopted by SACOG lacked sufficient detailed information such as building densities, but the Appellate Court concluded that such detail was not required in the MTP/SCS. As a regional planning document, the SCS contained sufficient information upon which the City could determine its conformity. Petitioner also challenged the impact analysis. However, the City had addressed impacts and required mitigation measures through the initial study. While the City may not have looked at the cumulative effects of new high-rise projects in Midtown in its general plan EIR, the EIR for the SCS plan had addressed cumulative effects. That was sufficient and the City could rely upon the SCS EIR for that evaluation.

Maacama Watershed Alliance v. County of Sonoma (2019) 40 Cal.App.5th 1007

Plaintiff and Appellant, Maacama Watershed Alliance (“MWA”) appealed a judgment at the trial court rejecting a challenge to the County of Sonoma’s adoption of a mitigated negative declaration (“MND”). The project was located in Knights Valley in Sonoma County on an 86-acre parcel already zoned for extensive agriculture. The project contained 46 acres of vineyards and preexisting residential buildings. The superior court held that the Sonoma County Board of Supervisors’ approval of the MND was proper and denied MWA’s writ of mandate.

On appeal, MWA argued the following: 1) the MND does not sufficiently evaluate the effects of erosion and landslide issues; 2) there is substantial evidence to support a fair argument that the project will significantly affect salmonids, groundwater, and fire suppression; 3) the County ignored the significant visual impacts when approving the project; and 4) an EIR is necessary to examine the project’s potential fire impacts. The Court of Appeal denied all four arguments presented:

  • First, the Court held that the record showed detailed consideration and conditions of approval to ensure slope stability at the project location. The Court held that MWA failed to cite to substantial evidence in the record to support a fair argument that the project , as mitigated, may have significant impacts, and that the County properly approved adoption of measures to reduce any expected effects to a level of insignificance, and required the winery to monitor any unanticipated conditions that could potentially impact erosion or landslide issues.
  • Second, the Court held that the County properly determined the project would have a less than significant impact on groundwater supply, the salmonids populations, and fire suppression. Applying the standard of “whether there is substantial evidence to support a fair argument the project will have significant effects,” the Court held that the project MND’s analysis was sufficient. It reasoned that the project would have less water demand than that of a residence, and the impact to groundwater recharge was minimal. Further, the Court determined there was insufficient evidence cited by MWA to suggest the project would affect creek flows, thus negatively impacting the salmonid population. The Court stated that any impacts to water withdrawals from wells for fire suppression were adequately addressed in a mitigation measure requiring that the project reduce water use elsewhere on the property to meet the “performance standard of ‘no net increase.’”
  • Third, the Court was unconvinced the County ignored the visual impacts of the project on the surrounding area pursuant to the CEQA guidelines. As the Court reiterated under the Guidelines, “an agency should consider, ‘whether a proposed project would substantially degrade the existing visual character or quality of the site and its surroundings.’” The Court stated that MWA’s claims regarding “the unsightliness of the existing residence is not substantial evidence that the winery building, in an area zoned for wineries and tasting rooms, will create a significant impact.” The Court further reasoned that the conditions of approval required the project proponent to meet specific standards to address the exact visual issues MWA argued against, and as such the MND did not improperly defer mitigation since the standards were set by the County.
  • Fourth, The Court dismissed MWA’s argument that the project was required to complete an adequate fire risk analysis. The Court reasoned that the record shows that the project includes fire suppression measures and meets all application fire safety codes. The Court further cited to City of Hayward v. Trustees of California State University (2015) 242 Cal.App.4th 833, when concluding that “the need for additional fire protection services is not an environmental impact that requires a project proponent to mitigate.” As the Court pointed out, MWA already convinced the Board of Supervisors to require modifications to the project securing additional fire prevention measures. As such, the Court denied MWA’s appeal, affirmed the superior court’s denial of the writ of mandate and awarded costs on appeal to the County.

Hollywoodians Encouraging Rental Opportunities v. City of Los Angeles (2019) 37 Cal.App.5th 768

The Court of Appeal affirmed the trial court’s denial of a writ of mandate demanding the City of Los Angeles (“City”) prepare an EIR for the conversion of a former rental apartment building into a hotel. The Court held that as the building had not been a part of the rental housing market for years, there was no need for an EIR to assess the loss of affordable housing.

The owner of an 18-unit apartment building in Hollywood filed an application in 2009 to convert the apartment complex into a 39-unit condo project. Between 2009-2014 all previous residents of the 18-unit complex vacated and the owner abandoned his plans to convert the property. Further, the owner withdrew the building in 2013 from the rental market as allowed by the Ellis Act rental use in 2013 and thereafter proposed a boutique hotel (“Project”). By July 2015, the owner filed applications for a CUP, variance, and rear yard adjustment with the City to convert the property. After conducting an initial study, the City determined “the Project would cause either a less-than-significant impact or no impact.” As a result, the City adopted a mitigated negative declaration (“MND”) in December 2015. An unincorporated association, Hollywoodians Encouraging Rental Opportunities (“HERO”), filed suit against the City to set aside the project approvals.

HERO alleged: 1) the record supported a fair argument of substantial environmental impacts resulting from the project, 2) the initial study failed to examine cumulative impacts and therefor the Project approvals were not proper, 3) the City improperly bifurcated the MND from the Project approvals, and 4) the City improperly handled HERO member Shain’s appeal to the Los Angeles Area Planning Commission. The trial court denied the petition concluding that the City used the proper baseline because during 2015 when the MND was approved by the City, there were no adverse impacts on population or housing due to the lack of tenants. The trial court affirmed the City’s determination that the Project was not subject to the Ellis Act because of the owner’s withdrawal of the units from residential use, as articulated by the Ellis Act. On appeal, the appellate court agreed. The appellate court found the building was uninhabited when the Project commenced in 2015. The appellate court rejected HERO’s contention that the units may be later restored as rental units as purely speculative and that the Ellis Act allows property owners to exit the residential real estate market. The record supported the City’s determination that the property was removed from the residential housing market in 2013 when residents vacated. As such, the appellate court held that the City used an appropriate baseline and HERO lacked a fair argument to prove the project may have a significant environmental impact.

HERO further alleged the City failed to analyze cumulative impacts. The court disagreed, concluding that because there was no substantial evidence to show an adverse project impact the City was not required to evaluate cumulative impacts. The appellate court acknowledged that it was aware of the shortage of affordable housing in Los Angeles. However, the appellate court determined that the building vacancy as a result of the Ellis Act effectively precluded evaluation of the loss of housing as part of a CEQA evaluation.

D. Environmental Impact Reports

Covington v. Great Basin Unified Air Pollution Control Dist. (2019) ___ Cal.App.5th ___

Petitioners filed a petition for writ of mandate challenging the adequacy of an environmental impact report (EIR) to accurately estimate the amount of reactive organic gas (ROG) emissions and to adopt all feasible mitigation measures for a geothermal power plant project. Petitioners challenged Petitioners also asserted that the Great Basin Unified Air Pollution Control District was not the proper lead agency to undertake preparation of the EIR. The trial court denied the petition for writ of mandate, finding the District was the proper lead agency, the permit to operate conclusively set the emissions limit, and that the District properly determined that the additional proposed mitigation measures were not feasible. Petitioners appealed and the appellate court affirmed in part and reversed in part.

Regarding the lead agency status, the court held that the District was the proper lead agency because even though a small portion of the project was located within Mono County jurisdiction, the plant itself was located on federal lands leaving the District with the greatest amount of responsibility to supervise and approve the project as a whole. As for the emissions limit, petitioners had argued that the District’s redaction of the underlying data as “proprietary information,” but included the bottom line total emissions number, failed to present substantial evidence in support of its emissions conclusions. The court rejected the claim, agreeing with the District that the total emissions figure was sufficient because it set the maximum emissions allowed by the operations, there were adequate measures in place to detect the emission amounts, and the District included sufficient means of enforcement.

The court reversed the trial court decision, however, regarding the adequacy of District’s infeasibility determination of certain mitigation measures proposed by petitioners. It reasoned that despite petitioner’s detailed technical and expert support of proposed technological measures to address potential emissions leaks, the District’s summarily dismissed the measures as applicable to refineries, not geothermal plants, and the failure to “give a good faith, reasoned analysis for not adopting” the measures supported the conclusion that there was insufficient evidence to support the infeasibility determinations.

Citizens for Positive Growth & Preservation v. City of Sacramento (2019) __ Cal.App.5th ___

In 2015, the City of Sacramento adopted an update to its general plan. The 2015 general plan amendment (“2015 Update”) was an update to a comprehensive 2030 plan adopted in 2009. The 2015 Update included an extension of the general plan to a 2035 horizon date and revisions to the traffic thresholds of significance.   Following a recommendation of approval of the draft 2015 Update by the planning commission, the City Council notice consideration of the 2015 Update at a March council meeting. This notice referenced 13 supplemental changes to the general plan, including eight not considered by the commission.   Following adoption, the petitioner (Citizens) filed a timely action arguing that the general plan was invalid as it violated the internal consistency doctrine and that the EIR failed to comply with CEQA.  Both the trial court and court of appeal upheld the 2015 Update and the EIR.

The General Plan Challenge

Petitioner presented a singular challenge to the 2015 Update, arguing that the inclusion of one sentence violated the general plan internal consistency requirement (Gov. Code §65300.5.)  The challenged sentence read “The City, in its sole discretion, shall determine a proposed project’s consistency with the City’s General Plan. Consistency is achieved if a project will further the overall objectives and policies of the General Plan and not obstruct their obtainment, recognizing that a proposed project may be consistent with the overall objectives of the General Plan, but not with each and every policy thereof. In all instances, the City may use its discretion to balance and harmonize policies with other countervailing policies in a manner that best achieves the City’s overall goals.”

The appellate court found no facial violation of the internal consistency requirement or conflict with the General Plan Guidelines. The opponents failed to identify any specific conflicting policies. At best, the opponents complained of what the City might do in the future. From the appellate court’s perspective, there was nothing in the challenged language which presented “a total and fatal conflict with applicable statutory prohibitions or the conduct is likely to occur in the great majority of circumstances.” The opponent’s string of hypothetical future decisions was insufficient to set aside the general plan. The court then turned to the CEQA claims.

The CEQA Challenge

Adios LOS. As to traffic impacts, the General Plan included LOS standards, but recognized that exceptions to the standards were permitted in certain circumstances. Notwithstanding that certain roadways would operate at LOS E and F in 2035, the City concluded that as a result of various general plan policies including an emphasis in multi-modal mobility and a shift away from just considering automobile delay and travel times, that the impact was less than significant, and no mitigation was required. Citizens challenged the LOS revisions, but the appellate court concluded that the challenge was moot as a result of Public Resources Code section 21099(b)(2) which provides that “automobile delay, as described solely by level of service or similar measure of vehicle capacity or traffic congestion shall not be considered a significant impact on the environment” except for roadway capacity projects. The court also concluded that, because the vehicle miles traveled (“VMT”) provisions of the CEQA Guidelines (§15064.3) were not yet mandatory for the City, Citizens’ alternative argument that the City failed to perform a VMT analysis also failed.

The “No Project” Alternative. The No Project alternative was based upon buildout of the 2030 General Plan. Although the estimated buildout for 2030 and 2035 were assumed to be the same, the 2035 plan included energy efficiency provisions, greenhouse gas reductions, a climate action plan and more aggressive flood protection policies. Citizens objected, and the court of appeal viewed the challenge not as a substantive failure of the No Project alternative, but as a challenge to the City’s rejection of the No Project alternative, which the City rejected because if failed to achieve objectives sought by the 2035 plan. As Citizens failed to properly cite to the record to show a lack of substantial evidence in support of the City’s rejection, its challenge to the No Project alternative failed.

EIR Recirculation Was Not Required. A lead agency’s decision not to recirculate must be supported by substantial evidence. However, a challenger must prove a “double negative” “that is, [Citizens] must demonstrate that there is no substantial evidence to support a determination that the [changes were] not significant new information” quoting from South County Citizens for Smart Growth v. County of Nevada (2013) 221 Cal.App.4th 316, 330. Among other arguments, Citizens asserted that the modification to the LOS standards in the plan required recirculation. The court noted that the policy changes did not trigger an impact and that there would be no changes in the physical impacts otherwise anticipated to occur. Thus, the court concluded that there was not a new impact or a substantial increase in the severity of an impact.

Remaining Issues. The appellate court rejected Citizens’ greenhouse gas arguments because (a) the change in LOS policy did not change physical impacts; and (b) Citizens failed to cite to any record evidence in support of its position. Citizens final argument was that the EIR was deficient for failure to address bicycle safety and conflict with Vehicle Code section 21760. However, Citizen’s challenge consisted of argument not based upon evidence in the appellate record and as such, did not constitute substantial evidence. “Thus, ‘project opponents must produce evidence, other than their unsubstantiated opinions, that a project will produce a particular adverse effect.’” Citizens failed to cite relevant evidence in the record in support or its assertion of significant impacts.

County of Butte v. Department of Water Resources (2019) 39 Cal.App.5th 708

**PETITION FOR REVIEW GRANTED**

The California Supreme Court granted the petition for review on December 11, 2019.

Petitioners challenged the adequacy of the Draft Environmental Impact Report submitted by the Department in support of its request to extend its federal license from the Federal Energy Regulatory Commission (“FERC”) to operate the Oroville Dam and its related facilities and sought to stay the licensing proceedings. The appellate court, after consideration of the California Supreme Court holding in Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677, held that the Federal Power Act preempted state court review of the licensing project. It reasoned that federal law provides for an alternative licensing process (“ALP”) that incorporates all federal and state license procedures into a single process involving all affected state, federal, local and private parties under the authority of FERC, and established administrative procedures before FERC for all participating entities to resolve disputes over the required environmental studies. Under the ALP, the licensing process thus not subject to review, but new actions to implement the project, such as mitigation for habitat loss caused by the project, may be subject to CEQA review in state courts and only upon implementation, which would not occur until some length of time after the issuance of the FERC license.

San Diego Navy Broadway Complex Coalition v. California Coastal Comm. (2019) 40 Cal.App.5th 563

Petitioners challenged the adequacy of the CEQA findings adopted in support of the certification of an EIR for a port master plan amendment that would allow an expansion of the convention center and related hotel facilities, among several other separate Coastal Act claims. Petitioners contended that the Commission failed to : (1) find that there were “no more feasible mitigation measures to reduce the expansion’s environmental impacts to a level of insignificance”; (2) provide substantial evidence in support of its finding that a proposed “4th Avenue pedestrian bridge” was not viable as a mitigation measure to enhance access to the shoreline.

Affirming the trial court decision, the Fourth District Court of Appeal denied the first claim, reasoning that: (1) the Commission’s findings were sufficient, because there is no requirement under CEQA to find that “no more feasible mitigation measures” existed, and that the Commission properly  concluded that there were no feasible mitigation measures that “would substantially lessen any significant adverse effect”; and (2) petitioners’ argument set up a false standard as “CEQA focuses on substantial reduction, not insignificance, and contemplates that projects with significant effects can sometimes be approved.” The court also denied the second claim finding that (1) the court was obliged to defer to the Commission’s judgment to rely on its staff’s judgment as to the potential costs for construction of the bridge which could have exceeded to project’s maximum budget in the absence of substantial evidence in the record to the contrary; and (2) the Commission properly concluded that the bridge was infeasible for the additional reason that a portion of the bridge would need to be built outside its jurisdiction and petitioners provided no evidence that the other jurisdiction had agreed to the bridge construction.

Chico Advocates for a Responsible Economy v. City of Chico (2019) 40 Cal.App.5th 839

The project applicant sought approval from the City Council to expand an existing Walmart Store by 64,000 square feet, add an 8-pump gas station, and create two new parcels for future commercial development (the “Project”). An EIR was prepared that identified one significant and unavoidable traffic impact that would result from the Project. The Council certified the EIR and approved the Project, including a statement of overriding considerations that found that the Project’s benefits outweighed the unavoidable traffic impact. Petitioners filed suit, challenging the Project and the adequacy of the environmental review, but the trial court rejected the claims. Petitioners appealed, arguing (1) the EIR failed to adequately evaluate the Project’s urban decay impacts, and (2) that the City’s statement of overriding considerations was legally deficient. The appellate court affirmed both claims, though only the urban decay impacts issues were certified for publication.

Regarding urban decay impacts, the petitioners argued that despite the incorporation of a 43-page analysis of urban decay supported by a 123-page economic report in the EIR, the analysis was inadequate because (1) the EIR “failed to treat the loss of ‘close and convenient’ shopping as a significant environmental impact,” and (2) the EIR’s findings were not supported by substantial evidence due to flaws in its methodology. The appellate court rejected both claims, finding that (1) the elimination of “close and convenient shopping” was not a CEQA issue because it is a psychological and social impact that petitioner’s failed to demonstrate would result in a potential physical change in the environment, and (2) the ported flaws in the methodology were “nothing more than differences of opinion about how the Project’s expected grocery sales should be estimated, how the Project’s market area should be defined, and which competitors are most susceptible to impacts from the Project.”

Stopthemillenniumhollywood.com v. City of Los Angeles (2019) 39 Cal.App.5th 1

The Court of Appeal delivered a setback to mixed use proposals by invalidating an EIR lacking a specific development proposal, but which evaluated different land use mixes. The Court found that the EIR lacked a definite and stable project description. For all practical purposes, the Court elevated CEQA in importance over how a local government chooses to design its regulatory code and application process.

The facts involved no insignificant project. The Millennium Project was the redevelopment of a four and one-half acre area surrounding the iconic Capitol Records building in Los Angeles. In 2008, the developer filed a development application describing a detailed proposed project consisting of 492 residential units, a 200-unit luxury hotel, 100,000 square feet of office space, a 35,000 square-foot sports club, more than 11,000 square feet of commercial uses, and 34,000 square feet of food and beverage. As with many other development applications in 2008, it was not advanced by the developer.

In contrast to the 2008 application, the next application in 2011 adopted a more fluid approach.   Specific buildings were not proposed, but rather a flexible mixed-use project of up to 1,052,667 square feet of space, allowing for a broad range of residential and commercial uses as allowed for under the equivalency provisions of the city development code. The EIR evaluated different scenarios (more residential/less commercial vs. more commercial/less residential square footage). Neighbors challenged the EIR on several grounds, and the trial court agreed that the EIR lacked a stable project description. While the ensuing appeal and cross-appeal involved additional CEQA claims, the only issue addressed by Appellate Court was that concerning the project description. The Court of Appeal affirmed the trial court’s judgment, concluding that the lack of meaningful detail in describing a specific project precluded effective public participation. Given that a detailed application was filed in 2008 the Court surmised that a detailed submittal was not an undue burden on an applicant.

Center for Biological Diversity v. Department of Conservation (2019) 36 Cal.App.5th 210

The question “how much is enough?” for programmatic EIRs remains an ongoing challenge for CEQA practitioners.  Programmatic EIRs are frequently prepared in conjunction with broad legislative acts where specific detail as to how the policy will be administered in the future is lacking.  This makes programmatic EIRs easy targets for project opponents who can always identify another study to be performed or another variable to be considered.  Neither the CEQA statute nor the Guidelines provide a meaningful metric to judge sufficiency.  Ultimately it is left to the reviewing courts to sort it out.  The Third Appellate District addressed this issue in a recent decision involving a statutorily mandated EIR prepared by the state Department of Conservation (“Department”) concerning fracking.  The legal setting is unusual because (a) the Legislature mandated the preparation of the EIR and (b) the Department did not approve any project.  While the threshold legal issue involved ripeness, the Court of Appeal also addressed programmatic EIRs, EIR scope (albeit in the context of a statutorily defined project), mitigation measures, and findings.

In this appeal, the court was asked to consider the sufficiency of a programmatic EIR mandated by the legislature when Senate Bill 4 (“SB 4”) passed in 2013 (Chap. 313, Stats. 2013).  SB 4 required the Department to consider the environmental effects of well stimulation (fracking) in a programmatic EIR due on or before July 1, 2015.  SB 4 also required a separate independent study (“Study”) by the Natural Resources Agency on well stimulation treatments, due on or before January 1, 2015.  The Department’s EIR was a programmatic document for statewide impacts but also included a more refined examination of the potential impacts in three particular oil and gas fields: Wilmington, Inglewood, and Sespe.   The draft EIR contained proposed mitigation measures.  However, industry representatives raised concerns that draft mitigation measures may constitute underground regulations.  In response, certain measures were converted to formal regulations and others were embodied into a “Mitigation Policy Manual”.  The Department finalized and certified the EIR resulting in the Center for Biological Diversity (“CBD”) challenging the EIR through a writ of mandate along with a claim for declaratory relief.  CBD complained as to the level of detail, the sufficiency of the document for project specific approvals, the lack of mitigation measures, and a mitigation monitoring program.  The trial court rejected all of petitioner’s claims.

Before addressing the specific issues on appeal, the court of appeal articulated three general principles applicable to judicial review of programmatic EIRs:

  1. Impacts and mitigation measures not determined at the first tier may be deferred to later tiers.
  2. The sufficiency must be reviewed in light of what is reasonably feasible, given the nature and scope of the project the “rule of reason.”
  3. Finally, the test as to the level of detail is: does the EIR entail sufficient information such that those who did not participate in its preparation to understand and meaningfully consider the issues. The document label is not determinative, but rather the relevant question is whether the EIR provides the decision makers with sufficient analysis to intelligently consider the environmental consequences.

Demurrer to First Cause of Action.  In CBD’s first cause of action, CBD argued that the Department violated CEQA by carrying out a project of well stimulation in violation of CEQA.   The Agency argued before the trial court that the case was not ripe as the Department had not approved a project, and the Department was not directly undertaking well stimulation.  Both the trial court and Court of Appeal agreed with the Department.  This was an unusual situation in which the lead agency was not approving a project following EIR certification.

Scope of the EIR-Inclusion of the Study.  CBD also argued that the Department failed its statutory EIR obligation by not considering Volume 1 of the Study.  The Appellate Court rejected this argument, noting that the Study and EIR were codified in separate code sections. While the completion dates for both suggest that the Study would be available in time for the EIR, nothing in the legislation directly linked the two together.  The EIR made passing reference to Volume I of the Study but did not otherwise discuss it in depth.  The court concluded that the EIR included sufficient discussion and made a reasonable effort to disclose that there were no apparent conflicts.  Many of CBD’s arguments concerning conflicts between the Study and EIR involved Study Volumes II and III, which were not available at the time the EIR was certified.  While CBD also argued that the EIR should have been updated to respond to Volumes II and III, the latter Volumes were not in the record on appeal and the Appellate Court had no basis to reverse the Department’s certification.

Indirect Impacts.  CBD also argued that the EIR failed to evaluate the indirect impact of well stimulation (traffic, wastewater, and emissions.)  The Court of Appeal disagreed given the narrow scope of the project set forth in the enabling legislation.

Mitigation Measures.  CBD presents multiple challenges pertaining to the mitigation measures, all rejected by the Court of Appeal.  First, the court upheld the Mitigation Policy Manual, finding that it served as a floor to later mitigation requirements.  The Manual and the EIR certification reflected sufficient detail and commitment in implementation to overcome the claim of deferred mitigation.  The Manual (over 100 pages) included guidelines and checklists to guide proper application as individual well stimulation permits were applied for.  CBD also argued that the EIR failed to include feasible mitigation measures for indirect impacts.  The Department had deleted these mitigation measures in the final EIR on the grounds that the measures were infeasible.  The Department’s reasoning was that the indirect effects involved potentially opening new oil and gas fields.  Due in part to the objections concerning underground regulations, the Department concluded that it was inappropriate to adopt mitigation measures pertaining to new fields as conditions of approval on well stimulation permits.  The Appellate Court agreed, embracing a flexible concept of feasibility.

Findings and MMRP.  CBD also asserted CEQA violations as a result of no CEQA findings and the lack of a mitigation monitoring program.  The Department argued that findings and a monitoring program are not required until a project was approved.  Having already concluded that the Department was not approving a project, the Appellate Court rejected CBD’s argument.

Field Specific Analysis.  Finally, CBD complained that the more detailed field specific analysis was insufficient as certain discussions for the field analysis was the same as what the EIR presented for the statewide analysis.  The Appellate Court observed that the fact that the impact analysis was the same did not support the conclusion that the analysis was improper.  A challenger to an EIR bears the burden of showing the error, and there was no evidence in the record which demonstrated that the conclusions were incorrect.  The court noted that the EIR acknowledged that later environmental analysis may be required for well stimulation within those fields given the level of detail in the first tier.  This reflected the Department’s recognition that this first level EIR was not dispositive of all future CEQA review in those fields.

South of Market Community Action Network v. City & County of San Francisco (2019) 33 Cal.App.5th 321

 In 2014, real parties Forest City California Residential Development and Hearst Communications, Inc. (collectively “real parties”) sought to redevelop the San Francisco Chronicle building and surrounding structures and parcels and create a special use district (“the ‘5M’ project”). The developer advanced two options for redevelopment with one plan utilizing a residential scheme and one plan utilizing an office scheme. The DEIR and FEIR included analysis evaluating the potential alternatives for both schemes as well as a combination of both. After the public comment period and the San Francisco Board of Supervisors (“the City”) certified the FEIR, plaintiffs sought a writ of mandate in San Francisco Superior Court including alleged violations of CEQA requesting that the trial court set aside the certification of the FEIR and approval of the project. The trial court denied the writ of mandate and the First Appellate District affirmed the trial court’s decision.

On the merits, the appellate court held that the two alternate schemes were clear and provided an accurate project description. Plaintiffs argued the two schemes confused the project description; thus, the project description mislead members of the public who were unclear which project scheme would be ultimately decided upon. The appellate court disagreed. The court’s reasoning stated that the project description detailed one project with two options for different allocations of space. As such, the court found that there was more than sufficient information and clarity in the EIR and “enhanced, rather than obscured, the information available to the public.” The court further held that the project description is supposed to be treated as a fluid initial understanding of the project. Approval of the EIR need not be a blanket acceptance of the entire project description at its inception, but rather “approval of adopted characteristics of one of the proposed alternatives.”

Plaintiffs further argued that the City incorrectly analyzed cumulative impacts by relying on projects during the recession of the last decade when San Francisco has “seen a tremendous uptick in development since the recession rendering the project list defective or misleading”. The court rejected this argument. As the court explained, it is within the agency’s discretion to select the methodologies used when evaluating cumulative impacts. Plaintiffs failed to show where the City’s methodologies were “unsupported by substantial evidence.” The court further articulated that the City re-reviewed its list of projects and methodologies prior to publication of the DEIR to verify the reasonable alternatives.

As to the traffic impacts, plaintiffs asserted that the City failed to include key intersections in its analysis. As to this claim, the court held that it is within an agency’s discretion which traffic resources to evaluate. Plaintiffs had yet again failed to prove that the City committed an abuse of discretion when completing its traffic and circulation studies and plaintiffs had offered no evidence to prove an abuse of discretion. Similarly, Plaintiffs had argued that the 5M Project failed to consider the concerns of the San Francisco Park Recreation and Open Space Advisory Committee about the lack of sunlight and open spaces on the project site. The court rejected this argument stating that plaintiffs failed to show the City violated CEQA or cite any legal authority to support their argument.

Plaintiffs also asserted that the EIR’s analysis of wind impacts insufficiently examined existing conditions rather than the revised project proposal. As to this, the court held that plaintiffs failed to exhaust their administrative remedies claim with respect to the wind impacts. Nevertheless, the court did reach the merits of the claims brought by plaintiffs. The court held that plaintiffs improperly relied on the threshold established under San Francisco Planning Code Section 148 when they should have relied on CEQA Guidelines § 15126.4, subd. (a)(1)(4). Under the CEQA guidelines, a project proposal must merely identify mitigation measures for each significant impact, not redesign the project specs to encompass the “comfort threshold” requirement under San Francisco Planning Code Section 148.

Where raising concerns over the 5M Project’s shade and shadow impacts analysis, plaintiffs contended the City failed to propose proper mitigation measures for the shade and shadow impacts on the project. The court disagreed, determining that the plaintiffs failed to prove that the City abused its discretion when evaluating the shadow impacts from the project and further held that the City had the discretion to increase the shadow limits of the parks affected by the 5M Project.

Lastly, plaintiffs contended that the EIR fails to conform to existing city area plans, policies, and the City Planning Code. More specifically, plaintiffs argued that the DEIR failed to adhere to the regulations established in the Draft Central SoMa Plan. The court disagreed with plaintiffs claim holding that at the time the DEIR was in circulation the Central SoMa Plan was not adopted and therefor the City did not need to consider whether the 5M Project followed regulations outlined in a draft area plan. Further, the court rejected with plaintiffs’ argument that the City created “in essence spot zoning” to allow for approval of the 5M Project. The court summarily rejected each additional argument raised about the Project’s conformance with city policies and the City Planning Code. The court held that plaintiffs failed to provide reasoned arguments to prove the City neglected preexisting regulations and codes. The court further found that the administrative record demonstrated that the “City made a good faith effort to discuss inconsistencies with applicable policies and codes.” The court pointed out plaintiffs consistently failed to substantiate these claims with supporting evidence or legal authority.

E. CEQA Litigation

Fudge v. City of Laguna Beach (2019) 32 Cal.App.5th 193

When the Coastal Commission accepts an appeal, it is a hearing de novo, meaning an entirely new hearing. The decision below (i.e. city council approval) no longer has any continuing legal effect. Once the commission agrees to hear the appeal, it is appropriate for the trial court to dismiss any legal action brought to challenge the city council approval.

Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador (2019) 33 Cal.App.5th 165

CEQA authorizes a trial court, following a determination that the lead agency committed a CEQA error to direct very specific CEQA corrections in an updated CEQA document.   When that CEQA document comes back through the process the second time, can the project opponents then expand the issues to be address beyond what the trial court ordered?  The answer is no, reflecting the finality of the earlier trial court decision.

In Ione Valley Land, Air, and Water Defense Alliance, LLC v. County of Amador, (2019) 33 Cal.App.5th 165.  project opponents filed suit over a quarry project.  The trial court rejected most of the opponents claims but agreed that the traffic analysis required correction.  The court issued a judgment and ordered the project approvals be set aside, that the EIR be fully decertified and an updated traffic analysis be circulated and certified.  The County complied.  The opponents filed a new writ challenging the updated EIR and project approval. Adding new issues beyond those in the original petition. At roughly the same time, the County filed a return to writ. Following review, the trial court determined that the lead agency had complied and then discharged the writ of mandate.

Responding to the new petition for writ of mandate, the trial court upheld the sufficiency of the traffic analysis and as to the new issues, concluded that the prior entry of judgment constituted res judicata as to all issues raised or which could have been raised.   The opponents appealed and the appellate court affirmed.

Recognizing the judgment entered in the first action and the failure of the opponents to file an appeal, the appellate court concluded that it was too late for the opponents to expand the issues in the second writ as to matters which were addressed or could have been addressed in the first lawsuit.   Opponents also argued that changes in law necessitated consideration of additional issues, however, as the opponents had not raised these issues in their opening brief on appeal, the appellate court would not consider the argument.

As to the recirculated traffic analysis, the appellate court affirmed the sufficiency of the updated traffic analysis but did not order that portion of the decision published.

Save Lafayette Trees v. City of Lafayette (2019) 32 Cal.App.5th 148

Land use approvals often trigger two different statutes of limitation. For purposes of general plan and zoning law, a challenger must file and serve the action within 90 days of the decision. Government Code section 65009.  As to the CEQA claim, the action must be served upon the agency within 10 days of filing the action. The CEQA claim must be filed within 30 or 35 days of posting the notice of determination or exemption (as appropriate), or 180 days if no notice is filed. Public Resources code section 21167. The land use statute of limitations applies to more than just permits and can include an agreement entered into between a city and utility regarding tree removal impacting a gas line. This decision modifies and replaces the 2018 decision of the same name.

F. CEQA Guidelines Updates

On December 28, 2018, the Natural Resources Agency adopted the final text to a comprehensive update to CEQA. Significant changes to the regulations include addressing global climate change and VMTs. Significant improvements include proactive analysis of impacts for wildfires, greenhouse gas emissions, and transportation impacts. Climate change benchmarks within the guidelines were crafted to coincide with the State’s climate action plans. The Office of Administrative Law completed review of the Final Text also on December 28, 2018 and sent the document to the Secretary of State’s office for final publication. Once published with the Secretary of State, the Guidelines go into full effect. All CEQA documents not finalized before January 1, 2019 are subject to the content requirements outlined in the modified text. The Procedural changes to CEQA will be required of all CEQA applicants and affected agencies 120 days after the guidelines were filed with the Secretary of State’s office.

The most significant changes as outlined in the notice of proposed rulemaking include:

  • “Updated exemptions for residential and mixed-use developments near transit and redeveloping vacant buildings;
  • Clarified rules to make it easier to use existing environmental documents to cover letter projects;
  • New provisions to address energy efficiency and the availability of water supplies;
  • Simplified requirements for responding to comments;
  • Clarify existing CEQA exemptions, including the use of the existing facilities categorical exemption and the emergency statutory exemption;
  • Elaborate and clarify information on “tiering,” and CEQA’s more specific “streamlining” provisions;
  • Clarify baseline requirements and the limitations on the ability to use historic conditions where environmental conditions fluctuate;
  • Provide guidance on “pre-commitment” issues and the types of activities that an agency may (or may not) engage in prior to the completion of CEQA review;
  • Add new “Energy” and “Wildfire” resource categories to the Initial Study/Appendix G checklist;
  • Implement SB743 Traffic Impact Analysis changes, including requirement that VMT be used throughout the state, phased in over time, no later than 2020;
  • A Technical Advisory that sets forth recommended VMT screening thresholds, as well as several examples of potential mitigation measures and alternatives to reduce VMT; and
  • Modified provisions to reflect recent CEQA cases addressing baseline, mitigation requirements and greenhouse gas emissions.”

Further, Appendix G of the CEQA Guidelines includes an updated environmental checklist. The Final Statement of Reasons often provides guidance and gap fillers for ambiguity in the regulations.

More information can be found at: http://resources.ca.gov/ceqa/

William Abbott, Diane Kindermann, Glen Hansen, and Daniel Cucchi are attorneys at Abbott & Kindermann, Inc.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or 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.