By William W. Abbott
Picayune Rancheria v. Brown (September 24, 2014, C074506) ___ Cal.App.4th ___.
Practitioners are familiar with the incredible breadth in the applicability of CEQA to numerous governmental agency actions. Agencies have been admonished by the California Supreme Court against early commitments to projects in advance of environmental review (Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116) although non-binding commitments are not “projects’ necessitating CEQA review. (Cedar Fair, Inc. v City of Santa Clara (2011) 194 Cal.App.4th 1150) [link 2] Apparently, if you are the Governor you have even less to worry about.
This issue of the Governor’s obligation to follow CEQA was brought to a head when a tribe operating an existing casino sued the Governor on CEQA grounds when the Governor concurred in a determination by the United States Department of the Interior that a new casino would be in the best interest of the Indian tribes and would not be detrimental to the surrounding community. Immediately following the concurrence determination, the Governor entered into a gaming compact with the interested tribe sans CEQA review, resulting in the CEQA challenge by the tribal gaming competitor. No CEQA worries here according to the trial and appellate court, as the Governor is not subject to the California Environmental Quality Act. The appellate court reached this conclusion based in part on the omission of the Governor from the definition of public agency in CEQA, along with the CEQA carve out created by the Legislature for tribal gaming compacts.
Label me a cynic perhaps, but this decision invites a minor digression about the illusive Holy Grail of CEQA reform. In recent years, the Legislature has responded to the desperate cries for help for a very vulnerable group; the owners of professional sports organizations. Apparently the Legislature is convinced that these downtrodden entrepreneurs are clearly entitled to preferential treatment, but that this treatment should not be shared with the public at large. Now that it is clear that the Governor is exempt from CEQA, what motivates reform? As the saying goes, ah it’s good to be the king.
William Abbott is a partner at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, 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.