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In search of CEQA infeasibility: a Sisyphean task.
Continue Reading Lack of Appropriation of Funds by the Legislature for Mitigation of Offsite Traffic Impacts Did Not Discharge the State University from Considering Other Feasible Strategies for Mitigation

In Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, the Court of Appeal, Sixth Appellate District, upheld the city’s certification of an EIR and approval of an expansion of the Palo Alto Medical Foundation’s medical campus finding that the city properly deemed the project consistent with its general plan; used the correct baseline for the traffic analysis in the EIR; used the correct baseline for the traffic noise analysis in the EIR; and contained a sufficient discussion of traffic noise impacts in the EIR.
Continue Reading Sunnyvale West Baseline Issue Revisited? Not Exactly.

CEQA requires an analysis of the project on the environment, not the environment on the project. An EIR which examines all strategies for protection of cultural resources satisfies CEQA’s disclosure requirements. Finally, after a successful writ of mandate, opponents are limited to the legal issues in the court’s order, and do not have a second bite at the litigation apple.
Continue Reading 2nd Appellate District Again Holds That For The Purposes Of CEQA, It Is The Impact Of The Project On The Environment, Not The Other Way Around

In the third quarter of 2011, the California Supreme Court issued two CEQA opinions and the California Appellate Courts issued 12 CEQA opinions. Many of the cases deal with procedural issues such as when the violation of a notice requirement is prejudicial (Schenck v. County of Sonoma (2011) 198 Cal.App.4th 949); the appropriateness of an interlocutory remedy in administrative mandamus (Voices of the Wetlands v. State Water Resources Control Board (2011) 52 Cal.4th 499); and the prevailing party’s recovery of attorneys fees for administrative time under Code of Civil Procedure section 1021.5 (Edna Valley Watch v. County of San Luis Obispo (2011) 197 Cal.App.4th 1312). The most notable opinion issued in the third quarter was the Supreme Court’s reversal of the appellate court in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal.4th 155. Not only did the Supreme Court determine that an EIR was not required for an ordinance banning plastic bags, but it also overturned prior precedent requiring corporations to make a heightened showing to demonstrate public interest standing.
Continue Reading 2011 CEQA THIRD QUARTER UPDATE

In the case of South Orange County Wastewater Authority v. City of Dana Point (2011) 196 Cal. App. 4th 1604 (“South Orange”), the Court of Appeal for the Fourth Appellate District was asked to order an environmental impact report (EIR) be prepared to assess the impact of the environment on a proposed project pursuant to the California Environmental Quality Act (CEQA). The court of appeal declined to order such an EIR. The court of appeal also addressed whether the adopted project was inconsistent with the city’s general plan and zoning ordinance, and found that the project was consistent.
Continue Reading Adjacent Landowners Can’t Use CEQA to Avoid Potential Nuisance Claims

The recent case of Voices of the Wetlands v. State Water Resources Control Board (August 15, 2011, S160211) 52 Cal.4th 499, involves the issuance of an NPDES permit by the Central Coast Regional Water Quality Control Board (“Regional Board”) authorizing the Moss Landing Power Plant (then owned by Duke Energy, now owned by Dynegy) to draw cooling water from Moss Landing Harbor and Elkhorn Slough. Plaintiff Voices of the Wetlands challenged the permit raising a number of legal issues, including whether the trial court improperly ordered an interlocutory remand. The appellate court affirmed and the trial court denied the writ.
Continue Reading California Supreme Court Rules Interlocutory Remand a Valid Remedy in Writ Petitions

In a CCP section 1021.5 fee award, the trial court has the discretion to award fees for the time spent in administrative proceedings.
Continue Reading Code of Civil Procedure §1021.5 Authorizes a Prevailing Party to Recover Its Attorney Fees for Administrative Time As Well As in Litigation