By William W. Abbott, Diane G. Kindermann, Katherine J. Hart, Glen Hansen and Brian Russell
Welcome to Abbott & Kindermann’s 2015 1st Quarter CEQA update. This summary provides links to more in depth case discussions located on the firm’s blog.
While there were only five published decisions in the first quarter of 2015, it was certainly noteworthy for the California Supreme Court’s decision in Berkeley Hillside, a decision which clarifies and incrementally advances the use of exemptions. As explained in our article, the battle for the heights in Berkeley is far from over. However, the appellate courts in turn wrestled with setting the baseline after an emergency project (Creed 21), tiering for functionally equivalent documents (Conway) and EIR sufficiency for Sacramento’s downtown entertainment and sports complex (Saltonstall). Finally, the court upheld the level of detail and range of alternatives in the EIR prepared by the California Department of Fish and Wildlife on its stocking, fishery and urban fishing program (CBD).
We also include a summary of all of the CEQA cases pending at the California Supreme Court. To review our 2014 CEQA Annual Summary click here.
In a lengthy decision, the California Supreme Court addressed the standard of review on exemptions and whether or not unusual circumstances apply. Two of the sitting justices are no longer on the court, and with new justices to be confirmed, the continuing longevity of the decision is subject of speculation. The case involves the use of an exemption by the City of Berkeley to approve discretionary permits for the construction of a single family home on a steep hillside. (Checkout the model on page one of this issue.) The City treated the proposal as exempt, and the neighbors claimed that unusual circumstances applied which defeated the use of the exemption. Distilled down, the high court held (1) evidence of a potentially significant impact does not by itself defeat the use an exemption, (2) that the deferential substantial evidence applies to the use of an exemption, and (3) the fair argument test applies to whether or not unusual circumstances exist which defeat the use of an exemption. The lead agency may appropriately look at the neighborhood to determine unusual circumstances. The court upheld the lead agency’s rejection of opponent’s testimony on the basis that it involved speculation as to how the home would be constructed. As the court of appeal had only addressed one challenge to the use of the exemption, the case was remanded below for application of the correct standard of review to the evidence, and for consideration of all of the objections to the use of the exemption. All told, the decision provides greater comfort to the use of exemptions.
Following an emergency, a lead agency can reset the “baseline” to the post-emergency repair condition in circumstances in which the lead agency had long considered undertaking the full project (pre-emergency and post emergency work.) In this case, once the emergency took place, the follow-up repair work was exempt as was not required to be factored in the scope of the “project”. Substantial evidence supported the lead agency’s use of the common sense exemption for the post-emergency repair work, and there was no substantial evidence in the record to support the application of the unusual circumstances limitation on the use of the exemption.
2. ENVIRONMENTAL IMPACT REPORTS
Charles Conway Jr v. State Water Resources Control Board (March 30, 2015, B252688) ____ Cal.App.4th___.
Functionally equivalent CEQA documents can be tiered similar to an environmental impact report. In this case, the appellate court upheld the Regional Board’s preparation of a functional equivalent document for the TMDL. The appellate court held that only a first-tier analysis was necessary for the TMDL because a TMDL merely identifies goals for levels of one or more pollutants in a water body and does not, by itself, preclude or require any actions. In rejecting the appellants arguments that the functional equivalent documents failed to analyze the environmental and economic impacts associated with dredging, the court noted that the BPA specifically calls for the cooperation of various landowners and the Regional Board to cooperate in negotiating and executing a memorandum of agreement on how the TMDL for lake sediment should be implemented. Specifically, the court held that, “Until such a plan is formulated, a full environmental analysis of any particular method of remediation is premature.”
In a challenge to the EIR for a downtown entertainment and sports arena, the court of appeal affirmed the adequacy of the EIR. In terms of CEQA timing, the city had the discretion to enter into a non-binding term sheet with the developer and engage in eminent domain proceedings. The EIR included a reasonable range of alternatives and the lead agency was not required to evaluate a remodeling of the existing facility as sufficient evidence supported conclusions of infeasibility and lack of meeting city objectives. Applying the substantial evidence standard of review, the trial court and court of appeal deferred to the lead agency on traffic impacts of state highways. The court went on to hold that crowd violence was not a CEQA issue. Finally, appellants failed to perfect claims on appeal under the Public Records Act as to emails which should have been included in the administrative record.
The California Department of Fish and Wildlife’s program environmental impact report that analyzed its statutorily mandated fish hatchery and stocking enterprise’s impacts on a statewide basis complied with the California Environmental Quality Act where it contained a sufficient level of analysis, did not impermissibly defer formulation of mitigation measures, and considered a reasonable range of alternative projects, and where the Department properly used the existing hatchery and stocking practice as its environmental baseline. The mitigation measures adopted by the Department on private fish vendors were underground regulations that violated the Administrative Procedure Act (APA), Gov. Code, § 11340 et seq., as they imposed qualification requirements and monitoring and reporting obligations on the vendors without complying with the APA’s notice and hearing procedures.
3. CASES PENDING AT THE CALIFORNIA SUPREME COURT
There are 8 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:
Cleveland National Forest Foundation v. San Diego Assn. of Governments,
S223603. (D063288; 231 Cal.App.4th 1056, mod. 231 Cal.App.4th 1437a; San Diego County Superior Court; 37-2011-00101593-CU-TT-CTL, 37-2011-00101660-CU-TTCTL.) Petition for review after the court of appeal affirmed the judgment in a civil action. The court limited review to the following issue: Must the environmental impact report for a regional transportation plan include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05, so as to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)?
Friends of the Eel River v. North Coast Railroad Authority, S222472. (A139222; 230 Cal.App.4th 85; Marin County Superior Court; CV1103591, CV1103605.) Petition for review after the court of appeal affirmed the judgments in actions for writ of administrative mandate. This case includes the following issues: (1) Does the Interstate Commerce Commission Termination Act [ICCTA] (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)? (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state owned rail line and/or leasing state-owned property?
Center for Biological Diversity v. Department of Fish & Wildlife, S217763. (B245131; 224 Cal.App.4th 1105; Los Angeles County Superior Court; BS131347.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents the following issues: (1) Does the California Endangered Species Act (Fish & Game Code, § 2050 et seq.) supersede other California statutes that prohibit the taking of "fully protected" species, and allow such a taking if it is incidental to a mitigation plan under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Does the California Environmental Quality Act restrict judicial review to the claims presented to an agency before the close of the public comment period on a draft environmental impact report? (3) May an agency deviate from the Act’s existing conditions baseline and instead determine the significance of a project’s greenhouse gas emissions by reference to a hypothetical higher "business as usual" baseline?
Sierra Club v. County of Fresno, S219783(F066798, 226 Cal.App.4th 704); Fresno County Superior Court; 11CECG00706, 11CECG00709, 11CECG00726.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. This case presents issues concerning the standard and scope of judicial review under the California Environmental Quality Act. (CEQA; Pub. Resources Code, § 21000 et seq.)
Citizens for Environmental Responsibility v. State ex rel. 14th Dist. Ag Assn., S218240 (C070836; depublished opinion, Sacramento County Superior Court; No. 34-2011-80000902CUWMGDS). Petition for review granted. Further action stayed pending disposition of Berkeley Hillside Preservation.
Friends of the College of San Mateo Gardens v. San Mateo County Community College Dist., S214061. (A135892; nonpublished opinion; San Mateo County Superior Court; CIV508656.) Petition for review after the court of appeal affirmed the judgment in an action for writ of administrative mandate. This case presents the following issue: When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save Our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?
California Building Industry Assn. v. Bay Area Air Quality Management Dist., S213478. (A135335, A136212; 218 Cal.App.4th 1171; Alameda County Superior Court; RG10548693.) Petition for review after the court of appeal reversed the judgment in an action for writ of administrative mandate. The court limited review to the following issue: Under what circumstances, if any, does the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) require an analysis of how existing environmental conditions will impact future residents or users (receptors) of a proposed project?
City of San Diego v. Trustees of the California State University, S199557. (D057446; 201 Cal.App.4th 1134; San Diego County Superior Court; GIC855643, GIC855701, 37-200700083692-CU-WM-CTL, 37-2007-00083773-CU-MC-CTL, 37-2007-00083768-CU-TT-CTL.) Petition for review after the court of appeal affirmed in part and reversed in part the judgment in a civil action. This case includes the following issue: Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?
If you have any questions about these court decisions, contact William Abbott or Katherine Hart. 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.