Welcome to Abbott & Kindermann, Inc.’s 2017 Annual 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. 2016 CEQA UPDATE

To read the 2016 cumulative CEQA review, click here.

 2.            CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 2 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:

Union of Medical Marijuana Patients, Inc. v. City of San Diego, S238563. (D068185; 4 Cal.App.5th 103; San Diego County Superior Court; 37-2014-00013481- CU-TT-CTL.) Petition for review after the Court of Appeal affirmed the judgment in an action for administrative mandate. This case presents the following issues: (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?

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.)

3.          UPDATE

             A. Ministerial v. Discretionary

 Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11.

The County issued an erosion-control permit to allow the establishment of a vineyard on land currently used for grazing. Petitioners challenged the issuance of the permit arguing it was a discretionary decision which triggered compliance with the California Environmental Quality Act (“CEQA”). The County argued the permit was ministerial and was, thus, exempt from CEQA. The dispute centered on the interpretation of the County Code and how much discretion the County Agricultural Commissioner can exercise when approving the permits.

The petitioners argued that the relevant provisions of the County Code were broad and vague, thereby allowing the Commissioner to exercise significant discretion. The court found petitioner’s claims unpersuasive, because most of the provisions that provide the Commissioner with considerable latitude were inapplicable to the issuance of the challenged permit. The court reasoned that even if the contested provisions could overcome the County’s position, the discretion arguably conferred to the Commissioner is only relevant when those discretionary provisions are applied to the approval of a specific permit.

The court then turned to petitioner’s argument that three provisions that did apply conferred additional discretion, namely provisions requiring: (1) a 50-foot setback from wetlands, “unless a wetlands biologist recommends a different setback”; (2) stormwater to be diverted “to the nearest practicable disposal location”; and (3) incorporation “of natural drainage features…whenever possible.” The court rejected these claims, reasoning that in contrast to prior seminal cases involving discretionary approvals, such as Friends of Westwood, Inc. v. City of Los Angeles, 191 Cal.App.3d 259 (1987), these provisions did not confer the ability to mitigate environmental impacts in a meaningful way. It further reasoned that in each instance petitioners failed to cite to any evidence in the record that demonstrated that the County had discretion or that any discretion found would mitigate potential environmental impacts to any meaningful degree.

Lastly, the court turned to petitioner’s claims that the Commissioner’s ability to request additional voluntary actions rendered the permit discretionary. The Court held the requests did not establish the exercise of discretion. It reasoned that despite the inclusion of several mitigation measures in the permit’s conditions of approval, because the ordinance does not require the requested measures, the Commissioner had no authority to require them and the applicant’s acceptance of the voluntary request is insufficient to transform an otherwise ministerial permit into a discretionary one.

B.             Piecemealing

Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266.

The County of Santa Cruz, as part of its plan to overhaul its zoning ordinance, adopted three separate ordinance amendments to: (1) expand the minor exceptions to the zoning site standards; (2) alter the height, density, and parking requirements for hotels in its commercial districts; and (3) adopted an administrative approval process for some minor exceptions to the sign ordinance. The County relied on a negative declaration for each of the first two amendments and found the third amendment was exempt. In each case, the County considered them separate and distinct projects under CEQA. The Aptos Council challenged the approvals, arguing the County had improperly “piecemealed” the CEQA evaluation for the projects by failing to consider them as a single project. In addition, the Council challenged the negative declaration for the hotel amendment, arguing the CEQA analysis failed to consider the impacts of future development that would be permitted by the ordinance.

Affirming the trial court, the appellate court denied the Council’s petition. It rejected the Council’s claim that the County improperly piecemealed the CEQA analyses for each amendment, because, as stated in Banning Ranch Conservancy v. City of Newport Beach, 211 Cal.App.4th 1209 (2012), each amendment could be “implemented independently.” As to the hotel amendment, the court found that the County’s analysis properly considered some potential impacts of future development, but concluded that additional impacts described by the Council were speculative and, thus, were not a reasonably foreseeable consequence of the amendment.

 C.            Exemptions

Protect Telegraph Hill v. City and County of San Francisco (2017) 16 Cal.App.5th 261.

Petitioners challenged the City and County of San Francisco’s (the “City”) approval of a conditional use permit (“CUP”) and the use of a CEQA exemption for the rehabilitation of a small cottage (citing CEQA Guidelines §15301, Existing Facilities), and construction of a new three-story condominium (citing CEQA Guidelines §15303, New Construction), on a 7,500 square-foot lot in the Telegraph Hill area. Petitioners raised several arguments: (1) unusual circumstances and the incorporation of “mitigation” undermined use of the exemptions; (2) a flawed project description; (3) a lack of evidence to support approval of the CUP; and (4) the CUP approval was in conflict with the City’s zoning code and general plan. The trial court denied the petition and Petitioners appealed.

The appellate court denied the petition in its entirety. Regarding the City’s use of the CEQA exemptions, the court reasoned that petitioner’s argument that conditions of approval to address pedestrian safety and traffic disruption during construction were not “mitigation”; rather, they were added under the City’s CUP authority to require precautionary safety measures separate from the determination that the impacts would be less than significant and that petitioner presented no evidence to the City that project would have such significant effects. The court also rejected claims of unusual circumstances noting that petitioner’s purported unusual circumstances regarding: (1) view obstruction and the uniqueness of Telegraph Hill were considered in the City’s general plan; (2) aesthetic impacts for certain infill projects are no longer considered significant impacts due to the enactment of Public Resources Code section 21099, subdivision (d)(1); and (3) the unusual topography and geology of the site were adequately addressed by the engineering report for the project. The court also reasoned that there was an adequate project description because it included all of the required information in the City code required to evaluate an application for a CEQA exemption determination. Finally, relying on San Francisco Tomorrow v. City and County of San Francisco, 229 Cal.App.4th 520 (2014), it held the City did not abuse its discretion when it approved the CUP, because despite petitioner’s claim that the project conflicted with Policy 8 of the City’s general plan, substantial evidence supported the determination that the project met several other priorities of the general plan.

Respect Life South San Francisco v. City of South San Francisco (2017)  15 Cal.App.5th 449.

Respect Life of South San Francisco (“Petitioners”) challenged the City of South San Francisco’s approval of a conditional use permit (“CUP”) for a proposed Planned Parenthood clinic at an existing office building in the city’s downtown. The approval relied upon several categorical exemptions under CEQA. The petitioners argued that there were unusual circumstances due to “the inherently noxious and controversial nature of a portion of Planned Parenthood’s services” which would cause significant environmental impacts (traffic, parking, public health and safety, noise, etc.) due to protests that would occur as a result of the approval. Affirming the trial court, the First District Court of Appeal held that the petitioners failed to provide substantial evidence of a fair argument of a reasonable possibility of a significant environmental effect as a result of the stated unusual circumstance.  It reasoned that the claimed effects that would result were not reasonably foreseeable. But even if they were, the petitioners merely asserted that these impacts would occur with nothing more, in contrast to evidence in the record showing that protests at similar facilities elsewhere in the Bay Area failed to create the petitioners’ asserted environmental impacts.

 D.            Subsequent Environmental Review

 Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2017) 11 Cal.App.5th 596.

In the follow up decision to the Supreme Court’s decision in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, the appellate court invalidated the District’s reliance upon the addendum to the previously adopted mitigated negative declaration. In the facts of San Mateo Gardens, the District proposed to modify a previously approved 2006 master plan calling for the demolition of up to 16 buildings and the renovation of several others at the campus. It later adopted an addendum to address the modifications to the master plan which included the removal of a portion of the gardens surrounding a building newly designated for demolition and the renovation of two other buildings that were previously slated for demolition.

First, the appellate court applied the substantial evidence test to review the agency’s decision to rely upon the prior mitigated negative declaration and use CEQA’s subsequent review provisions. The court found there was sufficient evidence to support the lead agency’s decision, because the project’s changes did not affect the 2006 decision and MND to demolish the other 14 buildings nor the previously established mitigation measures. Thus, the agency’s determination that there was continuing utility to the 2006 decision and related environmental analysis was proper.

Moving to the second question, however, the appellate court found the use of an addendum was inadequate under CEQA. Given the agency’s reliance upon a mitigated negative declaration in the first instance, the court held that the use of an addendum was improper when “the proposed modification may produce a significant environmental effect that had not previously been studied.” Based upon the testimony of students and faculty about the aesthetic impacts on the campus gardens, the appellate court concluded there was sufficient evidence to support a fair argument of a new aesthetic impact not previously analyzed and set aside the use of an addendum. The court, thus, affirmed the lower court judgment in favor of the petitioner.  But, rather than directing the agency to prepare an EIR, the court concluded that the agency could “choose to prepare a subsequent MND if it determines that the possibly significant environmental effects will ‘be reduced to insignificance’ through the implementation of mitigation measures.”

 E.            Functional Equivalent Documents

Pesticide Action Network North America v. California Dept. of Pesticide Regulation (2017) 16 Cal.App.5th 224.

The Department of Pesticide Regulation (the “Department”) approved amended labels for two previously registered pesticides, which allowed both to be used on additional crops and one to also be used in increased quantities. The Department also prepared an environmental document that found that there were no significant environmental effects that could not be mitigated. Pesticide Action Network North America (“PANNA”) filed a petition for writ of mandate asserting several violations of CEQA, including: (1) an abuse of discretion for finding no significant environmental effects; (2) failure to analyze direct, indirect and cumulative impacts of the new labels; (3) failed to address proper baseline conditions; and (4) failure to analyze project alternatives. The trial court held in favor of the Department and PANNA appealed.

Addressing the standard of review, the appellate court held that despite the Department’s use of a certified regulatory program as an alternative to CEQA compliance, the use of that procedure does not excuse the Department from ensuring that its process complies with the substantive portions of CEQA. Applying this more substantive compliance standard, the court found the Department violated CEQA because it failed to address any feasible alternatives to the proposed new uses for the previously registered pesticides. Regarding the analysis of potentially significant effects, the court held that the fair argument standard applied to the Department’s evaluation of impacts, and based on the information that could be found in the record, the Department was obligated to prepare a much more robust analysis and evidentiary support for its conclusions than the record showed. The court also found that the Department failed to provide adequate baseline information, concluding that the substantive standards of CEQA necessitate the identification of a proper baseline to allow the public to be able “to ascertain the significant effects of a proposed project.” The court next held that the Department’s failure to evaluate cumulative impacts violated CEQA, reasoning that even though neither the CEQA statutes nor the certified regulatory program documentation refer to a cumulative analysis, case law evaluating other certified regulatory programs shows that such an analysis is “an integral part of a program’s evaluation process.” Finally, the court found that due to the deficiencies already identified, recirculation was required to allow for meaningful public comment on its decision, and directed the superior court to issue a writ of mandate directing the Department to rescind its approval of the amended labels.

 F.            Environmental Impact Reports

Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677.

The North Coast Rail Authority (“NCRA”) prepared an Environmental Impact Report (“EIR”) in support of its decision to improve a dilapidated section of an existing rail line and resume freight service on the rail line. In 2011, the petitioners filed suit challenging the adequacy of the EIR. In response, NCRA defended the challenge arguing that despite completion of the environmental document, CEQA did not apply because the law was preempted by the federal Interstate Commerce Commission Termination Act of 1995 (“ICCTA”) for projects like that proposed by the NCRA. Thus, NCRA argued, the case should be dismissed because CEQA compliance is not actually required. The trial court entered judgment in favor of the NCRA and the appellate court affirmed. The California Supreme Court granted the petitioners’ petition for review regarding the question of preemption.

The California Supreme Court held that the ICCTA did not preempt the application of CEQA to the project. It reasoned that there was a distinction between the intersection of the domains of federal and state regulation and the self-governance of a sovereign state within our federal system. Here, the court concluded that the state was acting in the role of a private owner that can apply its own means of internal governance, so long as it does not conflict with the ICCTA or the role of other federal regulatory agencies. Thus, relying on U.S. Supreme Court case law establishing the manner of interpreting the preemptive nature of federal statutes, the court applied the rule that the statute must include “unmistakably clear language” to overcome the presumption that Congress did not wish to impede the state’s exercise of its own internal, sovereign concerns. Applying these principles to the ICCTA, the court held nothing in the statutory language of the ICCTA expressly preempts the state from adopting laws that govern its own process for making land use decisions, so long as those actions remain within “a regulatory hole which owners are free to exploit to their own advantage” under the ICCTA.

Cleveland Nat’l Forest Foundation v. San Diego Association of Governments (2017) 3 Cal.5th 497.

In a case brought by the Cleveland National Forest Foundation (the “Foundation”) against the San Diego Association of Governments’ (“SANDAG”) 2011 approval of its 2050 Regional Transportation Plan / Sustainable Communities Strategy (“RTP/SCS”), the issue before the California Supreme Court was whether SANDAG adequately analyzed greenhouse gas (“GHG”) emissions and climate change impacts as expressed in the Governor Schwarzenegger’s Executive Order setting a GHG emissions reductions goal of 80 percent below 1990 levels by 2050. In its EIR, SANDAG projected that under the plan GHG emissions will fall through 2020, but rise on an upward trajectory through 2050. The analysis did not explicitly project consistency with the goals established in the executive order.

The California Supreme Court, in a 6-1 decision, held that SANDAG was not required to explicitly analyze consistency with the 2050 goal in the executive order. The majority reasoned that although impacts resulting from GHG emissions in 2050 call for an analysis that “reasonably describe[s] the nature and magnitude of the adverse effect,” SANDAG was not legally required to use of the 2050 GHG reduction target, because the executive order is insufficient to create a binding effect on SANDAG’s preparation of an EIR. It further found the EIR’s discussion and analysis adopted by SANDAG was sufficient under CEQA, because it adequately described the contextual significance of the executive order and thoroughly explained why the 2050 goal was not used as a significance threshold, thus meeting its burden to “adequately inform the public and decision makers, who may not be previously familiar with the details of the project.” However, though the majority found the analysis was adequate when it was prepared in 2011, the court also cautioned agencies against concluding that this case could serve as a template for future EIRs, noting that as more and better data become available future, analyses will likely need to improve and account for the “additional certainty about the regulatory environment, including future projections of renewable energy, building energy efficiency, water conservation programs, and solid waste diversion.”

Cleveland Nat’l Forest Foundation v. San Diego Association of Governments (2017) 17 Cal.App.5th 413.

Following the earlier California Supreme Court decision addressing greenhouse gas emissions (“GHG”) analysis against the GHG reduction goals in Executive Order S-3-05 in EIRs (Cleveland Nat’l Forest Foundation v. San Diego Association of Governments (2017) 3 Cal.5th 497 [“Cleveland II”]), the Supreme Court sent the case down to the court of appeal which issued a new opinion consistent with the Supreme Court’s decision. While the Supreme Court in Cleveland II found that the manner in which SANDAG analyzed GHG impacts was adequate, the appellate court found several other issues inadequate under CEQA which “precluded informed public participation and decisionmaking”:

• The failure to include the discussion of alternative GHG mitigation measures identified in SANDAG’s own Climate Action Strategy (“CAS”) rendered the determination that the EIR adequately addressed mitigation for GHG impacts prejudicial.
• The failure to include an alternative which could significantly reduce total vehicle miles traveled (“VMT”) despite the CAS’ recommendations intended to promote the reduction of VMT.
• The lack of data estimating the public’s existing exposure to Toxic Air Contaminants (“TACs”) near major transportation infrastructure undermined the ability of decisionmakers to understand the air quality impacts of the transportation plan, as well as the potential for SANDAG to avoid such subsequent analysis in the next tier of analysis under Public Resources Code section 21166.
• The EIR improperly deferred the analysis of appropriate air quality mitigation measures, failed to set performance standards and commit to complying with them when it left the determination of air quality mitigation to the next tier of environmental review.
• Use of the farmland mapping and monitoring program (“FMMP”) data to determine impacts to farmland was inadequate because the FMMP did not include data on farmland of less than 10 acres in size and nearly 70% of farmland in the region is located on land from one to nine acres in size at an average size of four acres.

The appellate court remanded the case back to the trial court for further proceedings consistent with the opinion.

Association of Irritated Residents v. Kern County Board of Supervisors (2017) 17 Cal.App.5th 708.

Petitioners challenged a County’s issuance of approvals and EIR certification for the modification of an existing refinery located in the greater Bakersfield community. In 2008, the owner of the oil refinery filed bankruptcy and shut down operations. In June 2010, Alon USA purchased the refinery and put the plant back into operation; however refinery operations were then suspended, while other petroleum related operations continued. Several years later, Alon submitted an application to the County to expand the facilities and construct upgrades and relocation to existing facilities. Activities included new rail line and boilers. The impetus for the project was to create the flexibility to process Bakken crude oil from North Dakota. Following certification of the EIR and project approval, the opponents sued. The trial court ruled against the petitioners and they appealed. The appellate court affirmed in part and reversed in part, and ordered partial publication of the decision.

Petitioners challenged the EIR on several grounds, including: (1) the selection of 2007 as the baseline year as it as the last full operational year; (2) the EIR’s reliance upon the State’s cap-and-trade program to evaluate the significance of the GHG emissions; (3) the EIR’s allowance for a credit against greenhouse gas emissions resulting from reduce truck trip deliveries from Bay Area refineries to the Fresno market; and (4) that rail-related components of the project were exempt due to federal pre-emption. The appellate court held in favor of the County on all issues except pre-emption, reasoning that: (1) the EIR’s use of average daily crude oil production between 2001-2008 provided substantial evidence for the selection of 2007 as the baseline for the plant and were tied to actual conditions and not hypothetical operating conditions; (2) use of the Cap-and-Trade program met the provisions of CEQA Guidelines 15064.4(b)(3) as “regulations…. adopted to implement a statewide….plan for the reduction or mitigation of greenhouse gas emissions”; (3) any alleged error with respect to further reductions would not be prejudicial, noting that the County had correctly relied upon cap-and-trade to reach its impact conclusion; but that (4) the county was required to account for rail related impacts and to determine if the specific mitigation measures were allowable under federal law. The court ordered that the EIR and approvals be set aside so that the rail-related issues could be adequately addressed.

Washoe Meadows Community v. Department of Parks & Recreation (2017) 17 Cal.App.5th 277.

In 2010, the Department of Parks & Recreation (the “Department”) issued a Draft EIR for the proposed “Upper Truckee River Restoration and Golf Course Reconfiguration Project.”  Rather than identifying a proposed project design, the EIR considered five different alternatives in significant detail: (1) no project; (2) river restoration with reconfiguration of the 18-hole golf course; (3) river restoration with a nine-hole golf course; (4) river stabilization with continuation of the existing 18-hole golf course; and (5) restoration of the ecosystem and decommissioning of the golf course. After completing the public comment process, the Department issued a Final EIR that identified a refined Alternative 2 which was also identified as the preferred alternative. The Department certified the EIR and approved the preferred alternative. Petitioners filed suit arguing that the EIR was inadequate for several reasons, including that the EIR lacked an “accurate, finite and stable” project description. The trial court agreed and granted the petition. The Department appealed.

Affirming the trial court, the court of appeal declined to address any other issues because it agreed that the EIR was fundamentally flawed as a result of the lack of an accurate, finite and stable project description. It reasoned that the EIR’s presentation of five different project alternatives did not describe a stable proposed project, because it functioned more as a scoping plan designed to identify a proposed project normally completed prior to preparation of an EIR. As a result, it “presented the public with a moving target and requires a commenter to offer input on a wide range of alternatives that may not be in any way germane to the project ultimately approved.

Placerville Historic Preservation League v. Judicial Council of California (2017) 16 Cal.App.5th 187.

In Placerville Historic Preservation League v. Judicial Council of California, the appellate court considered when urban decay is considered a significant impact under CEQA.  Here, the Judicial Council wanted to relocate a courthouse located on Main Street in the City of Placerville. The Historic Preservation League challenged the EIR arguing that the relocation would create urban decay. Relying on the definition of urban decay as “physical deterioration of properties or structures that is so prevalent, substantial and lasting a significant period of time that it impairs the proper utilization of the properties and structures, and the health, safety, and welfare of the surrounding community,” the appellate court concluded that substantial evidence supported the Judicial Council’s determination that urban decay was not a reasonably foreseeable consequence of the project under CEQA. It reasoned that the courthouse was not critical to the economic health of the downtown area and that there was no evidence presented that supported the idea that relocation of the courthouse would create a domino effect of urban decay in Placerville.

Los Angeles Conservancy v. City of West Hollywood (November 30, 2017) 2017 Cal. App. LEXIS 1151.

The Los Angeles Conservancy (“Petitioners”) challenged the City of West Hollywood’s certification of an EIR for the approval of a mixed use development project that included 137,000 square feet of office, 82,000 square feet of retail and restaurant use, 76 residential units, 884 subterranean parking spaces on four levels, and over 16,000 square feet of both private and public open space. Petitioner challenged the sufficiency of the analysis of one of the alternatives, as well as the adequacy of the responses to comments and the findings to reject the alternative as infeasible. The trial court denied the petition and Petitioners appealed. The appellate court affirmed.

Petitioners argued that Alternative 3 failed to include a conceptual design, nor explain why the alternative would not allow the construction of a key pedestrian feature of the proposed project’s design. They also argued that use of estimated reductions in square footage was too ambiguous to fully evaluate the impacts of the alternative, and that there was insufficient evidence to support the finding of infeasibility rejecting the alternative.

The court was not persuaded, finding the Alternative 3 analysis sufficient. First, the court noted that petitioners could cite to no legal authority that requires an EIR to include design plans for alternatives. Second, the court reasoned that no explanation of the why the analysis would preclude construction of a project design feature was necessary, because the implications of the alternative design were so clear that no explanation was necessary. Third, distinguishing the present case from Preservation Action Council v. City of San Jose, 141 Cal.App.4th 1336 (2006), the court reasoned that the imprecise nature of the square footage reductions in Alternative 3 did not render the information insufficient to permit a reasonable evaluation of the alternative’s environmental impacts. Fourth, the court found that the EIR’s determination that Alternative 3 “would preclude ‘pedestrian connectivity to the site’” and staff testimony that “the required pedestrian paseo…would prevent the reuse of the existing building onsite as proposed in Alternative 3, provided substantial evidence to support the determination that Alternative 3 was infeasible because it was inconsistent with project objectives to promote pedestrian uses. As for the adequacy of the responses to comments on the EIR, the court found the challenged responses were sufficient, reasoning that because the comments consisted of objections to the proposed project and support for selection of a specific alternative, nothing more than a general response was required.

Poet, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52.

In 2013, the Fifth District Court of Appeal issued a writ of mandate compelling CARB to revise its environmental document in support of its 2009 adoption of the Low Carbon Fuel Standards (“LCFS”) to ensure compliance with CEQA. (See POET, LLC v. State Air Resources Board (2013) 218 Cal.App.4th 681.) After CARB adopted the revised environmental document, Poet, LLC (“Poet”), challenged whether the analysis adequately evaluated the project’s impacts on biodiesel consumption and the related increases in NOx emissions that would result. Specifically, Poet challenged CARB’s use of a 2014 NOx emissions baseline to evaluate the impacts of the regulations. CARB argued the 2014 baseline was appropriate under these circumstances, because the changes in biodiesel use and technology in the years after the 2009 LCFS adoption, and the modified LCFS regulations and new Alternative Diesel Fuel (“ADF”) regulations adopted in 2015, made it “impossible to determine what portion of the increase in use is attributable to the original LCFS,” and, thus, would not yield any environmentally meaningful information.

The appellate court was unpersuaded and held that CARB was required to set the baseline at 2009 levels. It reasoned that CEQA’s requirement that environmental review must consider “the whole of the action,” as well as the explicit requirements under the writ of mandate, necessitated that the analysis consider not only the original LCFS regulations, but also the 2015 LCFS and ADF regulations, in order to fully inform the decision makers and the public of any significant environmental impacts of their adoption. The court then issued a revised writ directing CARB to freeze into place the 2017 standards for diesel fuel and its substitutes adopted under the 2015 LCFS until a CEQA-compliant environmental document using the proper baseline is completed.

Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918.

Petitioners sued the City of Newport Beach over the approval of a residential and commercial project on one quarter of a 400-acre, largely undeveloped coastal property.  The petitioners objected to the City’s EIR, arguing it failed to identify potential impacts to “environmentally sensitive habitat areas” (“ESHA”), defined by the California Coastal Act, as a result of the project. The Coastal Commission had not yet determined whether ESHAs were present at the site and the site was explicitly excluded from the City’s coastal land use plan. Petitioners also challenged the project on general plan consistency grounds, asserting that the County had failed to adequately “work with” the Coastal Commission to identify wetlands and habitats. The appellate court held that the City was not required to speculate as to the presence of ESHAs at the site in its EIR, because it is a legal conclusion to be made by the Coastal Commission. Instead, the City’s EIR analysis was sufficient because it included all of the necessary data and analysis regarding biological resources and habitat. The court also found the project was consistent with the City’s general plan because the City could work with the Commission post-approval when it obtains the necessary coastal development permit. Petitioners appealed and the California Supreme Court granted the petition for review.

The California Supreme Court reversed. It held that CEQA’s requirement to concurrently integrate CEQA compliance with other related review procedures “required by law or by local practice” (CEQA Guidelines §15080), obligated the City to include at least some analysis of the impacts to known and potential ESHAs present on the site. It found the City’s reasoning for deferring the analysis was not persuasive, given the “ample evidence that ESHA are present on Banning Ranch.” As for the general plan consistency claim, the court decided it need not address the issue, holding it was unnecessary as sufficient relief was already granted under CEQA.

Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941.

Riverside County approved a specific plan and related regulations for a mixed-use project located on 200 acres. The specific plan, as modified by the Board of Supervisors prior to its approval, included seven planning areas with different allocations of allowed land uses. The EIR analyzed a project consisting of eight planning areas with different land use allocations across the project site than the adopted specific plan. Among other commenters, the air district and a nearby city both suggested mitigation measures to reduce air quality impacts in comments on the Draft EIR. Additional noise mitigation measures were also proposed during the final hearing before the Board. The Final EIR included responses to comments, including those of the air district and nearby city, but as to those comments concluded that the proposed mitigation measures were infeasible. The petitioners filed suit and the trial court denied the claims. The petitioners appealed.

The appellate court denied the appeal, rejecting the arguments of multiple CEQA claims, finding: (1) there were no procedural errors concerning the County’s practice of passing a motion of intent to approve and the later final approval; (2) EIR recirculation was not required because the decision not to recirculate due to the changes in the project was supported by substantial evidence; (3) errors in the notice of determination were not prejudicial; (4) there was sufficient evidence in the record to support rejection of suggested mitigation measures; and (5) the County had no duty to formally respond to late comments.

G.            Litigation

Creed-21 v. City of Wildomar (November 28, 2017) 2017 Cal. App. LEXIS 1131.

Creed-21 was a nonprofit, social-advocacy organization that asserted that at least one member resided in or near the City of Wildomar (the “City”). Creed-21 challenged the City’s approval of a 185,682-square-foot Walmart retail complex (the “Project”) located in the City and the accompanying EIR. Having reason to believe that Creed-21 was a shell corporation, which consisted of two members including Richard Lawrence who lived in San Diego, the City challenged Creed-21’s standing to bring the action and sought to depose Creed-21’s person most qualified (PMQ) regarding the standing issue. After several objections by Creed-21, the City filed a motion to compel the deposition, which was ultimately granted. Creed-21 continued to file procedural challenges and requests for delays to the order, and eventually the trial ordered dismissal of the case for failure to comply with the order. Creed-21 appealed. The appellate court affirmed, holding that dismissal of a CEQA case for the petitioner’s failure to comply with court orders regarding discovery of petitioner non-profit corporation corporate structure was not an abuse of discretion.

Center for Biological Diversity v. Dept. of Fish and Wildlife (2017) 17 Cal.App.5th 1245.

The most recent CBD/DFW case follows the earlier California Supreme Court decision addressing greenhouse gas emissions analysis in EIRs. (Center for Biological Diversity v. Department of Fish & Wildlife (2015) 62 Cal.4th 204).  After the Supreme Court sent the case down to the lower courts, the court of appeal issued a new opinion consistent with the Supreme Court’s decision, and sent the matter back down to the trial court to enter a finding that the GHG analysis was deficient along with related rulings.  Following the trial court hearing, the trial court ordered that portions of the EIR be decertified. The trial court ruling also enjoined all project activity until the EIR was made compliant, but did not set aside the project approval. The petitioners then appealed the scope of the writ issued by the court of appeal.

The court of appeal affirmed the trial court writ. In reaching its decision, the appellate court turned to the litigation provisions of CEQA, specifically, Public Resources Code section 21168.9. The appellate court accepted the discretion entrusted to the trial court, in circumstances in which the trial court makes the section 21168.9(b) findings, to custom fit the remedies to address only what needs to be remedied. Having found that partial certification was within the trial court’s authority, the appellate court also affirmed that the court had the discretion to suspend (as compared to set aside) the project approvals.  The writ also provided that the agency could reconsider the unaffected project approvals should the later CEQA analysis identify feasible mitigation measures which would have to be incorporated into the project. This three part approach to fashioning remedies operated to assure satisfaction of CEQA’s objectives.

Bridges v. Mt. San Jacinto Community College Dist. (2017) 14 Cal.App.5th 104.

The Mt. San Jacinto Community College District (the “District”), considered whether to enter into a land purchase agreement with a regional park district for property that the District was considering for a potential new campus (the “Agreement”). The Agreement was conditioned upon the completion of an Environmental Impact Report (“EIR”). The District Board’s consideration of the Agreement was added to the Board agenda, and at the meeting trustees discussed the future use of the property as a new campus. No objections were presented and the Agreement was approved. The petitioners later filed suit, arguing the District violated CEQA by failing to: (1) prepare an EIR prior to approval of the agreement; and (2) adopt local CEQA implementing procedures. The trial court ruled in favor of the District on both claims and the petitioners appealed.

The Fourth District Court of Appeal affirmed the trial court decision on both procedural and substantive grounds. First, the court held that petitioners failed to exhaust their administrative remedies when they failed to object to the District’s approval of the Agreement at the Board meeting. It held that petitioners bore the burden of demonstrating exhaustion and failed to provide substantial evidence in support their position of lack of notice. The court reasoned that the District’s Board meeting to take action to approve the Agreement provided constructive notice to petitioners, and absent evidence to the contrary, the court must presume the District complied with the Brown Act’s 72-hour agenda notice requirements. Consequently, it found that petitioners had an opportunity to raise their objections, but failed to take advantage of it. Thus, the CEQA claims were procedurally barred.

Moving to the substantive claims, the court rejected petitioners’ claim that an EIR was necessary prior to entering into the Agreement. It reasoned that the Agreement provided for conditions that required CEQA compliance prior to opening escrow to formally purchase the property. Petitioners argued the District had already committed itself to “a definite course of action” similar to Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, citing the District’s use of a consultant prepare a powerpoint presentation describing the future use of the site as the “Wildomar Campus,” and statements in the college newsletter of the District’s hopes to develop STEM program facilities at the new location. The court rejected these arguments, reasoning they fall far short of commitments and are nothing more than “discussion about the possibility of building a campus” at the site. The court also rejected claims that the District failed to adopt CEQA implementing procedures, finding that Public Resources Code section 21082 authorizes the District to utilize the county’s CEQA procedures where the property is located and is not obligated to adopt its own.

Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883.

The Highway 68 Coalition (the “Coalition”), filed a petition for writ of mandate challenging the County’s approval of a shopping center project citing various violations of CEQA. The trial court denied the petition on all CEQA claims, but issued an order of interlocutory remand to allow the County to determine whether the project is consistent with a general plan policy requiring projects to have a long-term, sustainable water supply. On remand, the County complied and the trial court subsequently denied the writ and entered judgment in favor of the County and the applicant. The Coalition appealed, claiming, among other things not addressed in the published portion of the opinion, that (1) the inadequacy of the general plan consistency analysis violated CEQA; and (2) the interlocutory remand was improper and violated the Coalition’s procedural due process rights. The Sixth District Court of Appeal rejected the claims, finding that the general plan consistency determination was a single, discrete, non-CEQA issue necessary to be clarified before the county’s approval could be upheld, making it a proper use of the interlocutory remand procedures. The court reasoned that because CEQA Guidelines section 15125(d) only requires an environmental document to identify and discuss inconsistencies with plans, no discussion in the EIR of a project’s consistency with the general plan was required. Thus, the mandate procedures provided under Public Resources Code section 21168.9 were inapplicable, and the court was free to order an interlocutory remand of the general plan consistency issue under its traditional mandamus powers.

The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993.

Urban Wildlands Group, Inc. (“UWG”) filed a petition for writ of mandate challenging the City’s use of a California Environmental Quality Act (“CEQA”) exemption for the replacement of street lamp bulbs with new light emitting diodes (“LEDs”). The City certified the Administrative Record, and UWG was ordered to lodge the administrative record pursuant to an agreement. UWG filed its opening and reply briefs, and the City filed its opposition brief, but UWG’s attorney did not lodge the administrative record. The court found in favor of the City, finding that UWG could not support its arguments because the administrative record was not lodged with the court. UWG subsequently filed a motion to vacate the judgment arguing they were entitled to relief under both the discretionary and mandatory relief provisions in Code of Civil Procedure section 473. The court granted relief under the mandatory provisions due to UWG’s attorney’s affidavit attesting to a “mistake, inadvertence, surprise, or neglect resulting in a default or dismissal.” The City appealed, and the appellate court reversed. Disapproving of prior case law which took a more expansive meaning of “default judgment” (In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438; Avila v. Chula (1997) 57 Cal.App.4th 860), the appellate court held that the trial court ruling was not “a default, default judgment, or dismissal,” because the failure to lodge the administrative record was akin to the failure to provide sufficient supporting evidence to meets its burden of proof in a trial on the merits.

Friends of Outlet Creek v. Mendocino County Air Quality Management District (2017) 11 Cal.App.5th 1235.

The operator of a proposed asphalt plant, after receiving approval from the Mendocino County Board of Supervisors, applied for an Authority to Construct permit (“ATC”) from the District. The District air pollution control officer relied upon the County’s prior environmental review to conclude that issuance of the ATC did not require any additional environmental review to comply with CEQA. The petitioner filed an administrative appeal to the District Board challenging the officer’s decision. The District Board denied the appeal, citing the prior land use decisions and environmental review, and the petitioner filed suit on the ground that the District did not comply with CEQA. The District demurred, arguing the petitioner was only entitled to a claim under Health & Safety Code section 40864, which they maintained did not support a CEQA challenge. The trial court sustained the demurrer and the petitioner appealed.

The First District Court of Appeal overruled the trial court. It found no case law supporting the District’s position that only Health & Safety Code section 40864 can be invoked to challenge the issuance of an air quality permit. Instead, it reasoned that not only do several cases support a petitioner’s right to challenge ATCs on CEQA grounds, but as an administrative proceeding, a suit challenging the ATC issuance proceeds under Code of Civil Procedure section 1094.5. Thus, the appellate court held that the petitioner could advance claims against the District under Health & Safety Code section 40864, CEQA, or both. The District also raised an additional defense—that the ATC issuance was ministerial—but the court held that the record was too lacking to evaluate the District’s determination and held that it could not dismiss the appeal on that basis.

Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202.

Petitioners challenged the Department’s issuance of permits for 214 new oil wells in Kern County, arguing that the Division of Oil, Gas, and Geothermal Resources (“DOGGR”) failed to comply with CEQA because no CEQA exemption applied to the permit and DOGGR did not conduct any other environmental review. DOGGR demurred, arguing the claims were res judicata, or barred, as a result of a similar prior action filed in Alameda County. The Department argued that the Alameda County action was a final judgment on the merits which rejected similar claims against DOGGR’s issuance of oil well permits. Petitioners argued the prior decision was found to be moot due to the passage of Senate Bill 4 in 2013, and was not on the merits. The trial court agreed with the Department and sustained the demurrer, and Petitioners appealed. The Fifth District Court of Appeal ruled for Petitioners. The Department argued that the trial court had reached the merits of the case when it analyzed relevant provisions with Senate Bill 4 which required DOGGR to issue permits within a certain time period when the permit applications met the statutory conditions for issuance. Thus, the Department asserted, the trial court’s review of the new process under Senate Bill 4 was also a review of the substantive issues underlying Petitioners’ pattern and practice claims. The appellate court rejected the argument, however, reasoning that the trial court’s review was limited to supporting the trial court’s position that the prior well permit review process was changing, thus, Petitioner’s past practices arguments were no longer relevant to rule on future activities. Therefore, the appellate court remanded the case back to the trial court with instructions to enter a new order overruling the Department’s res judicata demurrer to the petition.

 If you have any questions about these court decisions, contact William Abbott, Diane Kindermann or Daniel Cucchi. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc. 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.

Welcome to Abbott & Kindermann’s 2017 3^rd 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.              2016 CEQA UPDATE

To read the 2016 cumulative CEQA review, click here:

 2.            CASES PENDING AT THE CALIFORNIA SUPREME COURT

There are 2 CEQA cases pending at the California Supreme Court. The cases, listed newest to oldest, and the Court’s summaries are as follows:

Union of Medical Marijuana Patients, Inc. v. City of San Diego, S238563. (D068185; 4 Cal.App.5th 103; San Diego County Superior Court; 37-2014-00013481- CU-TT-CTL.) Petition for review after the Court of Appeal affirmed the judgment in an action for administrative mandate. This case presents the following issues: (1) Is the enactment of a zoning ordinance categorically a “project” within the meaning of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.)? (2) Is the enactment of a zoning ordinance allowing the operation of medical marijuana cooperatives in certain areas the type of activity that may cause a reasonably foreseeable indirect physical change to the environment?

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.)

3.          UPDATE

             A. Ministerial v. Discretionary

 Sierra Club v. County of Sonoma (2017) 11 Cal.App.5th 11.

The County issued an erosion-control permit to allow the establishment of a vineyard on land currently used for grazing. Petitioners challenged the issuance of the permit arguing it was a discretionary decision which triggered compliance with the California Environmental Quality Act (“CEQA”). The County argued the permit was ministerial and was, thus, exempt from CEQA. The dispute centered on the interpretation of the County Code and how much discretion the County Agricultural Commissioner can exercise when approving the permits.

The petitioners argued that the relevant provisions of the County Code were broad and vague, thereby allowing the Commissioner to exercise significant discretion. The court found petitioner’s claims unpersuasive, because most of the provisions that provide the Commissioner with considerable latitude were inapplicable to the issuance of the challenged permit. The court reasoned that even if the contested provisions could overcome the County’s position, the discretion arguably conferred to the Commissioner is only relevant when those discretionary provisions are applied to the approval of a specific permit.

The court then turned to petitioner’s argument that three provisions that did apply conferred additional discretion, namely provisions requiring: (1) a 50-foot setback from wetlands, “unless a wetlands biologist recommends a different setback”; (2) stormwater to be diverted “to the nearest practicable disposal location”; and (3) incorporation “of natural drainage features…whenever possible.” The court rejected these claims, reasoning that in contrast to prior seminal cases involving discretionary approvals, such as Friends of Westwood, Inc. v. City of Los Angeles, 191 Cal.App.3d 259 (1987), these provisions did not confer the ability to mitigate environmental impacts in a meaningful way. It further reasoned that in each instance petitioners failed to cite to any evidence in the record that demonstrated that the County had discretion or that any discretion found would mitigate potential environmental impacts to any meaningful degree.

Lastly, the court turned to petitioner’s claims that the Commissioner’s ability to request additional voluntary actions rendered the permit discretionary. The Court held the requests did not establish the exercise of discretion. It reasoned that despite the inclusion of several mitigation measures in the permit’s conditions of approval, because the ordinance does not require the requested measures, the Commissioner had no authority to require them and the applicant’s acceptance of the voluntary request is insufficient to transform an otherwise ministerial permit into a discretionary one.

B.             Piecemealing

Aptos Council v. County of Santa Cruz (2017) 10 Cal.App.5th 266.

The County of Santa Cruz, as part of its plan to overhaul its zoning ordinance, adopted three separate ordinance amendments to: (1) expand the minor exceptions to the zoning site standards; (2) alter the height, density, and parking requirements for hotels in its commercial districts; and (3) adopted an administrative approval process for some minor exceptions to the sign ordinance. The County relied on a negative declaration for each of the first two amendments and found the third amendment was exempt. In each case, the County considered them separate and distinct projects under CEQA. The Aptos Council challenged the approvals, arguing the County had improperly “piecemealed” the CEQA evaluation for the projects by failing to consider them as a single project. In addition, the Council challenged the negative declaration for the hotel amendment, arguing the CEQA analysis failed to consider the impacts of future development that would be permitted by the ordinance.

Affirming the trial court, the appellate court denied the Council’s petition. It rejected the Council’s claim that the County improperly piecemealed the CEQA analyses for each amendment, because, as stated in Banning Ranch Conservancy v. City of Newport Beach, 211 Cal.App.4th 1209 (2012), each amendment could be “implemented independently.” As to the hotel amendment, the court found that the County’s analysis properly considered some potential impacts of future development, but concluded that additional impacts described by the Council were speculative and, thus, were not a reasonably foreseeable consequence of the amendment.

 C.            Exemptions

Respect Life South San Francisco v. City of South San Francisco (September 18, 2017) 2017 Cal. App. LEXIS 801.

Respect Life of South San Francisco (“Petitioners”) challenged the City of South San Francisco’s approval of a conditional use permit (“CUP”) for a proposed Planned Parenthood clinic at an existing office building in the city’s downtown. The approval relied upon several categorical exemptions under CEQA. The petitioners argued that there were unusual circumstances due to “the inherently noxious and controversial nature of a portion of Planned Parenthood’s services” which would cause significant environmental impacts (traffic, parking, public health and safety, noise, etc.) due to protests that would occur as a result of the approval. Affirming the trial court, the First District Court of Appeal held that the petitioners failed to provide substantial evidence of a fair argument of a reasonable possibility of a significant environmental effect as a result of the stated unusual circumstance.  It reasoned that the claimed effects that would result were not reasonably foreseeable. But even if they were, the petitioners merely asserted that these impacts would occur with nothing more, in contrast to evidence in the record showing that protests at similar facilities elsewhere in the Bay Area failed to create the petitioners’ asserted environmental impacts.

 D.            Subsequent Environmental Review

 Friends of College of San Mateo Gardens v. San Mateo County Community College Dist. (2017) 11 Cal.App.5th 596.

In the follow up decision to the Supreme Court’s decision in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, the appellate court invalidated the District’s reliance upon the addendum to the previously adopted mitigated negative declaration. In the facts of San Mateo Gardens, the District proposed to modify a previously approved 2006 master plan calling for the demolition of up to 16 buildings and the renovation of several others at the campus. It later adopted an addendum to address the modifications to the master plan which included the removal of a portion of the gardens surrounding a building newly designated for demolition and the renovation of two other buildings that were previously slated for demolition.

First, the appellate court applied the substantial evidence test to review the agency’s decision to rely upon the prior mitigated negative declaration and use CEQA’s subsequent review provisions. The court found there was sufficient evidence to support the lead agency’s decision, because the project’s changes did not affect the 2006 decision and MND to demolish the other 14 buildings nor the previously established mitigation measures. Thus, the agency’s determination that there was continuing utility to the 2006 decision and related environmental analysis was proper.

Moving to the second question, however, the appellate court found the use of an addendum was inadequate under CEQA. Given the agency’s reliance upon a mitigated negative declaration in the first instance, the court held that the use of an addendum was improper when “the proposed modification may produce a significant environmental effect that had not previously been studied.” Based upon the testimony of students and faculty about the aesthetic impacts on the campus gardens, the appellate court concluded there was sufficient evidence to support a fair argument of a new aesthetic impact not previously analyzed and set aside the use of an addendum. The court, thus, affirmed the lower court judgment in favor of the petitioner.  But, rather than directing the agency to prepare an EIR, the court concluded that the agency could “choose to prepare a subsequent MND if it determines that the possibly significant environmental effects will ‘be reduced to insignificance’ through the implementation of mitigation measures.”

 E.            Functional Equivalent Documents

 Living Rivers Council v. State Water Resources Board (September 28, 2017) 2017 Cal. App. LEXIS 854.

In 2010, the State Water Resources Control Board (the “SWRCB”) approved a policy to maintain instream flows in specified Northern California coastal streams. In compliance with its certified regulatory program pursuant to CEQA, SWRCB certified a substitute environmental document (“SED”) to analyze the environmental impacts of the program. The decision was challenged by petitioners for failure to comply with CEQA, where the trial court rejected most of petitioners’ CEQA claims, but finding that the SED failed to disclose: (1) Subterranean Stream Delineations as a potential mitigation measure for increased groundwater pumping that would result from the program; and (2) the likelihood that increased pumping would largely avoid further CEQA review since SWRCB lacked permitting authority over percolating groundwater and many local jurisdictions lacked any permitting requirements. In response to the writ issued by the court, SWRCB prepared a Revised SED to address the issues identified by the court. In late 2013, SWRCB certified the Revised SED, adopted new CEQA findings and a Statement of Overriding Considerations, and readopted the policy.

Petitioners again filed suit, challenging the adequacy of the Revised SED’s analysis of impacts from increased groundwater pumping and the Board’s decision not to adopt the Subterranean Stream Delineations as a mitigation measure. The trial court rejected both claims and petitioners appealed. The First District Court of Appeal affirmed. First, petitioners claimed the analysis of groundwater pumping impacts was inadequate, because they asserted that SWRCB’s analysis was conflicting because it found the impacts both significant and “uncertain or unlikely.” The court rejected the claim, reasoning that the analysis in the Revised SED sufficiently explained “in some detail” the logistical challenges, groundwater availability issues, and the lack of connectivity involved in evaluating the potential effects of groundwater pumping.  Regarding petitioners’ claim that SWRCB improperly rejected the Subterranean Stream Delineations as a mitigation measure, the court also held in favor of SWRCB. It reasoned that it was within SWRCB’s discretion to reject a potential mitigation measure as infeasible, since it found that: (1) the measure would have only a limited impact within certain mapped areas; (2) the measure would require additional field review to implement and would likely take several years and millions of dollars to complete; (3) there was a high risk of legal challenge if the measure was formally adopted as policy; and (4) SWRCB already had the authority to address impacts from increased groundwater pumping.

 Pesticide Action Network North America v. California Dept. of Pesticide Regulation (September 19, 2017) 2017 Cal. App. LEXIS 803.

The Department of Pesticide Regulation (the “Department”) approved amended labels for two previously registered pesticides, which allowed both to be used on additional crops and one to also be used in increased quantities. The Department also prepared an environmental document that found that there were no significant environmental effects that could not be mitigated. Pesticide Action Network North America (“PANNA”) filed a petition for writ of mandate asserting several violations of CEQA, including: (1) an abuse of discretion for finding no significant environmental effects; (2) failure to analyze direct, indirect and cumulative impacts of the new labels; (3) failed to address proper baseline conditions; and (4) failure to analyze project alternatives. The trial court held in favor of the Department and PANNA appealed.

Addressing the standard of review, the appellate court held that despite the Department’s use of a certified regulatory program as an alternative to CEQA compliance, the use of that alternative does not excuse the Department from ensuring that its process complies with the substantive portions of CEQA. Applying this more substantive compliance standard, the court found the Department violated CEQA because it failed to address any feasible alternatives to the proposed new uses for the previously registered pesticides. Regarding the analysis of potentially significant effects, the court held that the fair argument standard applied to the Department’s evaluation of impacts, and based on the information that could be found in the record, the Department was obligated to prepare a much more robust analysis and evidentiary support for its conclusions than the record showed. The court also found that the Department failed to provide adequate baseline information, concluding that the substantive standards of CEQA necessitate the identification of a proper baseline to allow the public to be able “to ascertain the significant effects of a proposed project.” The court next held that the Department’s failure to evaluate cumulative impacts violated CEQA, reasoning that even though neither the CEQA statutes nor the certified regulatory program documentation refer to a cumulative analysis, case law evaluating other certified regulatory programs shows that such an analysis is “an integral part of a program’s evaluation process.” Finally, the court found that due to the deficiencies already identified, recirculation was required to allow for meaningful public comment on its decision, and directed the superior court to issue a writ of mandate directing the Department to rescind its approval of the amended labels.

 F.            Environmental Impact Reports

 Friends of the Eel River v. North Coast Railroad Authority (2017) 3 Cal.5th 677.

The North Coast Rail Authority (“NCRA”) prepared an Environmental Impact Report (“EIR”) in support of its decision to improve a dilapidated section of an existing rail line and resume freight service on the rail line. In 2011, the petitioners filed suit challenging the adequacy of the EIR. In response, NCRA defended the challenge arguing that despite completion of the environmental document, CEQA did not apply because the law was preempted by the federal Interstate Commerce Commission Termination Act of 1995 (“ICCTA”) for projects like that proposed by the NCRA. Thus, NCRA argued, the case should be dismissed because CEQA compliance is not actually required. The trial court entered judgment in favor of the NCRA and the appellate court affirmed. The California Supreme Court granted the petitioners’ petition for review regarding the question of preemption.

The California Supreme Court held that the ICCTA did not preempt the application of CEQA to the project. It reasoned that there was a distinction between the intersection of the domains of federal and state regulation and the self-governance of a sovereign state within our federal system. Here, the court concluded that the state was acting in the role of a private owner that can apply its own means of internal governance, so long as it does not conflict with the ICCTA or the role of other federal regulatory agencies. Thus, relying on U.S. Supreme Court case law establishing the manner of interpreting the preemptive nature of federal statutes, the court applied the rule that the statute must include “unmistakably clear language” to overcome the presumption that Congress did not wish to impede the state’s exercise of its own internal, sovereign concerns. Applying these principles to the ICCTA, the court held nothing in the statutory language of the ICCTA expressly preempts the state from adopting laws that govern its own process for making land use decisions, so long as those actions remain within “a regulatory hole which owners are free to exploit to their own advantage” under the ICCTA.

Cleveland Nat’l Forest Foundation v. San Diego Association of Governments (2017) 3 Cal.5th 497.

In a case brought by the Cleveland National Forest Foundation (the “Foundation”) against the San Diego Association of Governments’ (“SANDAG”) 2011 approval of its 2050 Regional Transportation Plan / Sustainable Communities Strategy (“RTP/SCS”), the issue before the California Supreme Court was whether SANDAG adequately analyzed greenhouse gas (“GHG”) emissions and climate change impacts as expressed in the Governor Schwarzenegger’s Executive Order setting a GHG emissions reductions goal of 80 percent below 1990 levels by 2050. In its EIR, SANDAG projected that under the plan GHG emissions will fall through 2020, but rise on an upward trajectory through 2050. The analysis did not explicitly project consistency with the goals established in the executive order.

The California Supreme Court, in a 6-1 decision, held that SANDAG was not required to explicitly analyze consistency with the 2050 goal in the executive order. The majority reasoned that although impacts resulting from GHG emissions in 2050 call for an analysis that “reasonably describe[s] the nature and magnitude of the adverse effect,” SANDAG was not legally required to use of the 2050 GHG reduction target, because the executive order is insufficient to create a binding effect on SANDAG’s preparation of an EIR. It further found the EIR’s discussion and analysis adopted by SANDAG was sufficient under CEQA, because it adequately described the contextual significance of the executive order and thoroughly explained why the 2050 goal was not used as a significance threshold, thus meeting its burden to “adequately inform the public and decision makers, who may not be previously familiar with the details of the project.” However, though the majority found the analysis was adequate when it was prepared in 2011, the court also cautioned agencies against concluding that this case could serve as a template for future EIRs, noting that as more and better data become available future, analyses will likely need to improve and account for the “additional certainty about the regulatory environment, including future projections of renewable energy, building energy efficiency, water conservation programs, and solid waste diversion.”

Poet, LLC v. State Air Resources Board (2017) 12 Cal.App.5th 52.

In 2013, the Fifth District Court of Appeal issued a writ of mandate compelling CARB to revise its environmental document in support of its 2009 adoption of the Low Carbon Fuel Standards (“LCFS”) to ensure compliance with CEQA. (See POET, LLC v. State Air Resources Board (2013) 218 Cal.App.4th 681.) After CARB adopted the revised environmental document, Poet, LLC (“Poet”), challenged whether the analysis adequately evaluated the project’s impacts on biodiesel consumption and the related increases in NOx emissions that would result. Specifically, Poet challenged CARB’s use of a 2014 NOx emissions baseline to evaluate the impacts of the regulations. CARB argued the 2014 baseline was appropriate under these circumstances, because the changes in biodiesel use and technology in the years after the 2009 LCFS adoption, and the modified LCFS regulations and new Alternative Diesel Fuel (“ADF”) regulations adopted in 2015, made it “impossible to determine what portion of the increase in use is attributable to the original LCFS,” and, thus, would not yield any environmentally meaningful information.

The appellate court was unpersuaded and held that CARB was required to set the baseline at 2009 levels. It reasoned that CEQA’s requirement that environmental review must consider “the whole of the action,” as well as the explicit requirements under the writ of mandate, necessitated that the analysis consider not only the original LCFS regulations, but also the 2015 LCFS and ADF regulations, in order to fully inform the decision makers and the public of any significant environmental impacts of their adoption. The court then issued a revised writ directing CARB to freeze into place the 2017 standards for diesel fuel and its substitutes adopted under the 2015 LCFS until a CEQA-compliant environmental document using the proper baseline is completed.

Banning Ranch Conservancy v. City of Newport Beach (2017) 2 Cal.5th 918.

Petitioners sued the City of Newport Beach over the approval of a residential and commercial project on one quarter of a 400-acre, largely undeveloped coastal property.  The petitioners objected to the City’s EIR, arguing it failed to identify potential impacts to “environmentally sensitive habitat areas” (“ESHA”), defined by the California Coastal Act, as a result of the project. The Coastal Commission had not yet determined whether ESHAs were present at the site and the site was explicitly excluded from the City’s coastal land use plan. Petitioners also challenged the project on general plan consistency grounds, asserting that the County had failed to adequately “work with” the Coastal Commission to identify wetlands and habitats. The appellate court held that the City was not required to speculate as to the presence of ESHAs at the site in its EIR, because it is a legal conclusion to be made by the Coastal Commission. Instead, the City’s EIR analysis was sufficient because it included all of the necessary data and analysis regarding biological resources and habitat. The court also found the project was consistent with the City’s general plan because the City could work with the Commission post-approval when it obtains the necessary coastal development permit. Petitioners appealed and the California Supreme Court granted the petition for review.

The California Supreme Court reversed. It held that CEQA’s requirement to concurrently integrate CEQA compliance with other related review procedures “required by law or by local practice” (CEQA Guidelines §15080), obligated the City to include at least some analysis of the impacts to known and potential ESHAs present on the site. It found the City’s reasoning for deferring the analysis was not persuasive, given the “ample evidence that ESHA are present on Banning Ranch.” As for the general plan consistency claim, the court decided it need not address the issue, holding it was unnecessary as sufficient relief was already granted under CEQA.

Residents Against Specific Plan 380 v. County of Riverside (2017) 9 Cal.App.5th 941.

Riverside County approved a specific plan and related regulations for a mixed-use project located on 200 acres. The specific plan, as modified by the Board of Supervisors prior to its approval, included seven planning areas with different allocations of allowed land uses. The EIR analyzed a project consisting of eight planning areas with different land use allocations across the project site than the adopted specific plan. Among other commenters, the air district and a nearby city both suggested mitigation measures to reduce air quality impacts in comments on the Draft EIR. Additional noise mitigation measures were also proposed during the final hearing before the Board. The Final EIR included responses to comments, including those of the air district and nearby city, but as to those comments concluded that the proposed mitigation measures were infeasible. The petitioners filed suit and the trial court denied the claims. The petitioners appealed.

The appellate court denied the appeal, rejecting the arguments of multiple CEQA claims, finding: (1) there were no procedural errors concerning the County’s practice of passing a motion of intent to approve and the later final approval; (2) EIR recirculation was not required because the decision not to recirculate due to the changes in the project was supported by substantial evidence; (3) errors in the notice of determination were not prejudicial; (4) there was sufficient evidence in the record to support rejection of suggested mitigation measures; and (5) the County had no duty to formally respond to late comments.

G.            Litigation

Bridges v. Mt. San Jacinto Community College Dist. (2017) 14 Cal.App.5th 104.

The Mt. San Jacinto Community College District (the “District”), considered whether to enter into a land purchase agreement with a regional park district for property that the District was considering for a potential new campus (the “Agreement”). The Agreement was conditioned upon the completion of an Environmental Impact Report (“EIR”). The District Board’s consideration of the Agreement was added to the Board agenda, and at the meeting trustees discussed the future use of the property as a new campus. No objections were presented and the Agreement was approved. The petitioners later filed suit, arguing the District violated CEQA by failing to: (1) prepare an EIR prior to approval of the agreement; and (2) adopt local CEQA implementing procedures. The trial court ruled in favor of the District on both claims and the petitioners appealed.

The Fourth District Court of Appeal affirmed the trial court decision on both procedural and substantive grounds. First, the court held that petitioners failed to exhaust their administrative remedies when they failed to object to the District’s approval of the Agreement at the Board meeting. It held that petitioners bore the burden of demonstrating exhaustion and failed to provide substantial evidence in support their position of lack of notice. The court reasoned that the District’s Board meeting to take action to approve the Agreement provided constructive notice to petitioners, and absent evidence to the contrary, the court must presume the District complied with the Brown Act’s 72-hour agenda notice requirements. Consequently, it found that petitioners had an opportunity to raise their objections, but failed to take advantage of it. Thus, the CEQA claims were procedurally barred.

Moving to the substantive claims, the court rejected petitioners’ claim that an EIR was necessary prior to entering into the Agreement. It reasoned that the Agreement provided for conditions that required CEQA compliance prior to opening escrow to formally purchase the property. Petitioners argued the District had already committed itself to “a definite course of action” similar to Save Tara v. City of West Hollywood (2008) 45 Cal.4th 116, citing the District’s use of a consultant prepare a powerpoint presentation describing the future use of the site as the “Wildomar Campus,” and statements in the college newsletter of the District’s hopes to develop STEM program facilities at the new location. The court rejected these arguments, reasoning they fall far short of commitments and are nothing more than “discussion about the possibility of building a campus” at the site. The court also rejected claims that the District failed to adopt CEQA implementing procedures, finding that Public Resources Code section 21082 authorizes the District to utilize the county’s CEQA procedures where the property is located and is not obligated to adopt its own.

Highway 68 Coalition v. County of Monterey (2017) 14 Cal.App.5th 883.

The Highway 68 Coalition (the “Coalition”), filed a petition for writ of mandate challenging the County’s approval of a shopping center project citing various violations of CEQA. The trial court denied the petition on all CEQA claims, but issued an order of interlocutory remand to allow the County to determine whether the project is consistent with a general plan policy requiring projects to have a long-term, sustainable water supply. On remand, the County complied and the trial court subsequently denied the writ and entered judgment in favor of the County and the applicant. The Coalition appealed, claiming, among other things not addressed in the published portion of the opinion, that (1) the inadequacy of the general plan consistency analysis violated CEQA; and (2) the interlocutory remand was improper and violated the Coalition procedural due process rights. The Sixth District Court of Appeal rejected the claims, finding that the general plan consistency determination was a single, discrete, non-CEQA issue necessary to be clarified before the county’s approval could be upheld, making it a proper use of the interlocutory remand procedures. The court reasoned that because CEQA Guidelines section 15125(d) only requires an environmental document to identify and discuss inconsistencies with plans, no discussion in the EIR of a project’s consistency with the general plan was required. Thus, the mandate procedures provided under Public Resources Code section 21168.9 were inapplicable, and the court was free to order an interlocutory remand of the general plan consistency issue under its traditional mandamus powers.

The Urban Wildlands Group, Inc. v. City of Los Angeles (2017) 10 Cal.App.5th 993.

Urban Wildlands Group, Inc. (“UWG”) filed a petition for writ of mandate challenging the City’s use of a California Environmental Quality Act (“CEQA”) exemption for the replacement of street lamp bulbs with new light emitting diodes (“LEDs”). The City certified the Administrative Record, and UWG was ordered to lodge the administrative record pursuant to an agreement. UWG filed its opening and reply briefs, and the City filed its opposition brief, but UWG’s attorney did not lodge the administrative record. The court found in favor of the City, finding that UWG could not support its arguments because the administrative record was not lodged with the court. UWG subsequently filed a motion to vacate the judgment arguing they were entitled to relief under both the discretionary and mandatory relief provisions in Code of Civil Procedure section 473. The court granted relief under the mandatory provisions due to UWG’s attorney’s affidavit attesting to a “mistake, inadvertence, surprise, or neglect resulting in a default or dismissal.” The City appealed, and the appellate court reversed. Disapproving of prior case law which took a more expansive meaning of “default judgment” (In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438; Avila v. Chula (1997) 57 Cal.App.4th 860), the appellate court held that the trial court ruling was not “a default, default judgment, or dismissal,” because the failure to lodge the administrative record was akin to the failure to provide sufficient supporting evidence to meets its burden of proof in a trial on the merits.

Friends of Outlet Creek v. Mendocino County Air Quality Management District (2017) 11 Cal.App.5th 1235.

The operator of a proposed asphalt plant, after receiving approval from the Mendocino County Board of Supervisors, applied for an Authority to Construct permit (“ATC”) from the District. The District air pollution control officer relied on the County’s prior environmental review to conclude that issuance of the ATC did not require any additional environmental review to comply with CEQA. The petitioner filed an administrative appeal to the District Board challenging the officer’s decision. The District Board denied the appeal, citing the prior land use decisions and environmental review, and the petitioner filed suit on the ground that the District did not comply with CEQA. The District demurred, arguing the petitioner was only entitled to a claim under Health & Safety Code section 40864, which they maintained did not support a CEQA challenge. The trial court sustained the demurrer and the petitioner appealed.

The First District Court of Appeal overruled the trial court. It found no case law supporting the District’s position that only Health & Safety Code section 40864 can be invoked to challenge the issuance of an air quality permit. Instead, it reasoned that not only do several cases support a petitioner’s right to challenge ATCs on CEQA grounds, but as an administrative proceeding, a suit challenging the ATC issuance proceeds under Code of Civil Procedure section 1094.5. Thus, the appellate court held that the petitioner could advance claims against the District under Health & Safety Code section 40864, CEQA, or both. The District also raised an additional defense—that the ATC issuance was ministerial—but the court held that the record was too lacking to evaluate the District’s determination and held that it could not dismiss the appeal on that basis.

Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202.

Petitioners challenged the Department’s issuance of permits for 214 new oil wells in Kern County, arguing that the Division of Oil, Gas, and Geothermal Resources (“DOGGR”) failed to comply with CEQA because no CEQA exemption applied to the permit and DOGGR did not conduct any other environmental review. DOGGR demurred, arguing the claims were res judicata, or barred, as a result of a similar prior action filed in Alameda County. The Department argued that the Alameda County action was a final judgment on the merits which rejected similar claims against DOGGR’s issuance of oil well permits. Petitioners argued the prior decision was found to be moot due to the passage of Senate Bill 4 in 2013, and was not on the merits. The trial court agreed with the Department and sustained the demurrer, and petitioners appealed. The Fifth District Court of Appeal ruled in favor of petitioners. The Department argued that the trial court had reached the merits of the case when it analyzed relevant provisions with Senate Bill 4 which required DOGGR to issue permits within a certain time period when the permit applications met the statutory conditions for issuance. The Department argued that this analysis was on the merits, because it showed how the new process rendered the claims moot. The court rejected the argument, however, reasoning that the review was limited to supporting the court’s position that the prior process was changing and, thus, petitioner’s arguments about past practices were no longer relevant to rule on future activities. Therefore, the appellate court remanded the case back to the trial court for further proceedings.

 If you have any questions about these court decisions, contact William Abbott, Diane Kindermann or Daniel Cucchi. The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc. 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.