The following is an overview of CEQA court decisions issued in the first half of 2009 along with links to more detailed analysis of each decision prepared by the attorneys at Abbott & Kindermann, LLP.


Is it a Project?

Health First v. March Joint Powers Authority (2009) (Case No. E045541): The court addressed whether the approval of a Design Plan Application was ministerial or discretionary.  Under CEQA, if the agency’s action is ministerial, CEQA does not apply.  Because the application had to be approved as long as it conformed with the Design Guidelines, the court held that the action was ministerial and no CEQA review was required.  The underlying project for which the application was submitted involved a business center located in the March Business Center Specific Plan Area, which was consistent with the General Plan for the former March Air Force Base. The General Plan conformed with the redevelopment plan.  The court emphasized that at all of these steps in the planning process environmental review and receipt of public comment occurred, and if the plaintiffs wanted to challenge the projects, it needed to do so at any or all of those stages.  Read more

Riverwatch v. Olivenhain Municipal Water District (2009) 170 Cal.App.4th 1186: Life is largely about timing, and CEQA practice is no exception.  Lead agencies have to find the balance of conducting meaningful environmental review, such that, it is neither too early to be meaningful, nor too late such that the project gains momentum to the preclusion of effective consideration of alternatives and mitigation measures.  In 2008, the California Supreme Court addressed this issue in Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, certainly putting a damper on public-private collaborative endeavors.  Riverwatch applies CEQA’s early timing requirements in a different setting.  A developer, having lost one CEQA case on the basis of the water supply analysis, entered into a long term agreement with a district to purchase recycled water, intending to use this agreement to remedy the deficiencies in its water supply analysis.  Project opponents then challenged the recycled water agreement on the basis that the District had failed to conduct CEQA review on the agreement before entering into it. The appellate court agreed with the opponents, underscoring the need for agencies to closely consider CEQA ramifications on all agreements, no matter how worthy the purpose.  Read more


Great Oaks Water Co. v. Santa Clara Valley Water Dist. (2009) 170 Cal.App.4th 956: Generally, exemptions from CEQA must be justified and are narrowly construed. In March, the Court of Appeal for the Sixth Appellate District addressed the use of an exemption involving rate setting for groundwater extraction charges. (Public Resources Code section 21080(b).) In upholding the use of the exemption, the appellate court first ruled that highly detailed findings justifying the use of the exemption were not mandated, as long as the court could understand the analytic route the “agency travelled from evidence to action.”  While more detail is preferable to less detail, the ultimate question is whether the court, from reviewing the record, findings and decision, can understand the agency’s action. Second, the exemption for rate setting cannot be used for system expansion.  On this issue, the record was very clear that the rates were used for delivery reliability improvement and were not expressly for expansion.  The key here, as always, is the staff report.  Read more

Mitigated Negative Declaration; Use of Impact Fees

California Native Plant Society v. County of El Dorado (2009) 170 Cal.App.4th 1026: The California Native Plant Society filed a CEQA lawsuit against El Dorado County after the County approved a Mitigated Negative Declaration and Congregate Care Project.  The Project consists of two care units, cottages, and a clubhouse on 20 acres, and was part of a larger development area including a local medical center, a senior assisted living facility, medical office buildings and a local retail shopping center.  Mitigation for Project impacts to sensitive plant species included paying a $135,000 mitigation fee established by a County ordinance in 1998 (“The Ecological Preserve Fee Program” or “Ordinance”).  The court held that the Fee Ordinance did not presumptively establish full mitigation for any specific project given that the Ordinance did not undergo any independent environmental review, and the County violated its own mitigation strategy by failing to conduct annual reviews of the fee amount and efficacy of the Fee Program.  Read more

EIR – Sufficient Mitigation

California Native Plant Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603: In this case, the Court reviewed an Environmental Impact Report for a project named The Preserve at Sunridge.  The Preserve involved the development of approximately 530 acres in Rancho Cordova, California as single and multi-family housing, commercial and office uses, a neighborhood park, an elementary school, detention basins, an open space and wetland preserve, bikeways and pedestrian and drainage corridors.  The Court of Appeal addressed the following issues presented by the plaintiffs: 1) offsite mitigation measures; 2) deferral of mitigation for loss of vernal pools and wetlands; 3) sufficiency of the evidence regarding proposed mitigation for vernal pools and wetlands; 4) the sufficiency of the water supply analysis; 5) a post-project approval amendment of mitigation measures; and 6) general plan consistency.  The City prevailed on all issues but the general plan consistency issue pertaining to whether or not the City properly “coordinated” with the United States Fish and Wildlife Service.  Read more

Procedural Litigation Issues

Strother v. California Coastal Commission (2009) 173 Cal.App.4th 873: This case involved challenges to the approval of coastal development permits by the California Coastal Commission.  The only issue before the court was whether the statute of limitations under the California Coastal Act of 1976 or CEQA applied.  If the Coastal Act statute of limitations applied, plaintiffs would have been barred from bringing suit.  The court held that the statute of limitations under CEQA applied to any challenges brought under that act, and the remaining claims were dismissed for failure to bring suit within the statutory period prescribed by the Coastal Act.

California Oak Foundation v. County of Tehama et al. (2009) (Case No. C057578): When defending challenges to projects, cities and counties often coordinate the defense with the Real Party in Interest.  The California Court of Appeals for the Third Appellate District made that process a little easier by holding that the disclosure of documents to the Real Party in Interest, when necessary to accomplish the purpose for which the lawyer was hired, does not waive the attorney client privilege.  The court found that disclosure to a codefendant in a joint endeavor to defend an EIR in litigation can reasonably be said to constitute the involvement of a third person to whom disclosure is reasonably necessary to further the purpose of the original legal consultation and thus the communications remained protected.  Additionally, the court rejected petitioner’s contention that Public Resources Code section 21167.6 overrode claims of privilege, holding that a new statute (Section 21167.6) is not an abrogation of an existing statute (e.g. Evidence Code section 954) unless it is clear that the later enactment is intended to supersede the existing law.  Read more

Climate Change and CEQA

OPR Transmits Finalized CEQA Guidelines to Resources Agency: On Monday, April 13, 2009, the Governor’s Office of Planning and Research proposed amendments to the CEQA Guidelines for the mitigation of greenhouse gas emissions (“Proposed Guidelines”) and transmitted them to the Resources Agency for rulemaking.  The language of the Proposed Guidelines largely mirrors the draft guidelines released in January 2009. The Proposed Guidelines require lead agencies to “describe, calculate, or estimate the amount of greenhouse gas emissions resulting from a project,” by either using a model or methodology to quantify greenhouse gas emissions or relying on a qualitative analysis or performance based standards.  (Proposed Guidelines, § 15064.4, subd. (a).) The two most significant changes from the earlier released draft are: 1) clarification that general standards for mitigation in California Code of Regulation, title 14, section 15126.4 subdivision (a) apply to the mitigation of greenhouse gases and 2) clarification on the tiering process.  The Resources Agency likely will begin the rulemaking process in July of 2009, and must be completed by January 1, 2010.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.