By Leslie Z. Walker

On January 9, 2012, the Alameda Superior Court heard and issued a ruling in a lawsuit filed by the California Building Industry Association (CBIA) challenging the Bay Area Air Quality Management District’s (“Air District”) CEQA thresholds of significance. (California Building Industry Association v. Bay Area Air Quality Management District, Alameda County Superior Court Case No. RG10548693.) The Air District adopted the first (and only) numeric greenhouse gas numeric thresholds in the State in June of 2010. The CBIA challenged those thresholds, claiming that the Air District violated CEQA by failing to treat the thresholds as a project under CEQA and to conduct the requisite environmental review for the project. The court ruled that the adoption of the thresholds was a project under CEQA and made no further findings or rulings.

Continue Reading CEQA Thresholds Require CEQA Review

By William W. Abbott

There is always a certain level of satisfaction at the end of the holidays when you find the last present, and for CEQA practitioners, the same holds true. On December 30, 2011, the First Appellate District issued a solid decision on baseline: Citizens for East Shore Parks v. California State Lands Commission (December 30, 2011, A129896) ___Cal.App.4th ___. The facts involve a lease extension between Chevron and the State Lands Commission for a marine terminal. Originally built in 1902, the terminal had been periodically upgraded. In 1947, the Lands Commission entered into a 50 year lease with Chevron’s predecessor. Starting in 1998 with the NOP, the Commission eventually certified the EIR for the lease extension, nine years later. The CEQA litigation followed.

Continue Reading The Lead Agency Correctly Utilized Existing Conditions As The Baseline For Environmental Assessment When Acting Upon A Lease Extension Request

By William W. Abbott

There are times during which CEQA practitioners feel a close kinship with Sisyphus, the Greek king of legend condemned to push a large boulder up a hill and upon nearly reaching the top, lose his grasp on the rock to have it roll to the bottom where he is compelled to repeat the exercise endlessly. This is today’s metaphor for where we find ourselves in the CEQA process, wherein at the moment in time at which we believe we have reached the summit, we in fact discover ourselves at the bottom of the hill, only to repeat our past efforts. A recent decision involving a determination of infeasibility by the state university at San Diego (“CSU”), which after the Supreme Court issued its decision in City of Marina v. Board of Trustees of California State (2006) 39 Cal.4th 341, was directed to set aside an earlier EIR and to revise it consistent with Marina. The second time around, the University rejected offsite traffic mitigation on the basis that the Legislature refused to appropriate money for that purpose. On the basis that the University was required to adopt all feasible mitigation measures, CSU’s rejection for lack of appropriation was held to be insufficient, thus sending CSU back to lift the rock another time and climb the CEQA hill.

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

By Katherine J. Hart

Summary: 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.

By William W. Abbott, Katherine J. Hart and Leslie Z. Walker

All in all, 2011 reflected a significant year in terms of the sheer number of published appellate decisions. While many decisions followed the parameters of past precedent, a handful of cases may be read as slightly pushing the law in a manner which adds additional steps, time and cost to successful completion of CEQA review. Notable decisions which supported the lead agency’s interpretation of CEQA practice included treating a “term sheet” for negotiations as not a project subject to CEQA review (Cedar Fair, L.P. v. City of Santa Clara); application of the density bonus statute (Wollmer v. City of Berkeley); reliance upon seismic safety codes as mitigation (Oakland Heritage Alliance v. City of Oakland); and the Supreme Court’s recognition of common sense as a tool in CEQA administration (Save the Plastic Bag Coalition v. City of Manhattan Beach). Continuing debate surrounds the following riddles: 1) is it the impact of the project on the environment or the environment on the project (South Orange County Wastewater Authority v. City of Dana Point) and 2) what is the baseline (Pfeiffer v. City of Sunnyvale City Council, Madera Oversight Coalition, Inc. v. County of Madera and Citizens for East Shore Parks v. California State Lands Commission)? Two cases tackled cultural resource analysis (Clover Valley Foundation v. City of Rocklin and Madera Oversight Coalition, Inc. v. County of Madera) while a number of cases dealt with the intricacies of litigation including: posting the notice of determination for the required time period (Latinos Unidos de Napa v. City of Napa); standing (Save the Plastic Bag Coalition v. City of Manhattan Beach); augmentation of the record and requests for judicial notice (Madera Oversight Coalition, Inc. v. County of Madera); and appropriate remedies in circumstances in which the court finds CEQA error (Land Value 77, LLC v. Board of Trustees of California State University). Finally, 2011 began the unveiling of published appellate decisions dealing with the interface of global warming and CEQA analysis (Citizens for Responsible Equitable Environmental Development v. City of San Diego, Citizens for Responsible Equitable Environmental Development v. City of Chula Vista and Santa Clarita Organization for Planning the Environment v. City of Santa Clarita), with more decisions predictably to follow in 2012.

Continue Reading 2011 CEQA ANNUAL UPDATE