Insight and Information for the Environmental & Natural Resource Industry
In City of Irvine v. County of Orange (“City of Irvine”) (published and modified on November 22, 2013), the Fourth District Court of Appeal affirmed the trial court’s ruling that the County of Orange’s (“County”) application for state funding for jail expansion was not a “project” requiring environmental review pursuant to CEQA.
In…
On September 27, 2013, Governor Brown signed Senate Bill 743, bringing to a close a legislative session full of surprises when it comes to CEQA reform. SB 743 paves the way for streamlined judicial review of the proposed new Sacramento Kings downtown arena and sets forth a few additional streamlining provisions under the California…
California Governor Jerry Brown signed SB 4 on Friday, September 20, 2013, establishing a permitting system for fracking of oil and gas wells. (See September 23, 2013 post.) The state, through the Department of Conservation, Division of Oil, Gas and Geothermal Resources (“DOGGR”), will be developing regulations to implement SB 4’s requirements. Despite its recent…
The Second District Court of Appeal has issued a decision in Comunidad en Accion v. Los Angeles City Council (case no. B240554 (Sept. 20, 2013), finding that the petitioner’s failure to timely request a hearing under the California Environmental Quality Act (“CEQA”) was excusable neglect. The Court of Appeal reversed the trial court’s ruling dismissing the petitioner’s suit on this basis.[1]
Comunidad en Accion challenged the City of Los Angeles’ approval of new and expanded solid waste facilities at the Bradley Landfill in Sun Valley, where the real party in interest, Waste Management, proposed building a new solid waste transfer station and expanded recycling and green waste processing facilities. Comunidad failed to comply with Public Resources Code section 21167.4 by filing a request for a hearing within 90 days of filing the lawsuit, however, and Waste Management filed a motion to dismiss on this basis shortly after the 90-day deadline ran.
The trial court granted the motion to dismiss Comunidad’s CEQA claims and denied its request for relief under Code of Civil Procedure section 473, which permits relief from dismissal due to mistake, inadvertence, surprise, or excusable neglect. Comunidad’s attorney averred that he had inadvertently omitted the 90-day hearing request from his personal calendaring system and that this mistake was compounded when he was out of state for two weeks prior to the deadline due to family illness. The trial court distinguished case precedent that found a calendaring error warranted discretionary relief under section 473, concluding that calendar shortcomings in the age of electronic litigation calendars, was not excusable neglect.
Upon review, the Court of Appeal reversed, finding that the trial court abused its discretion in denying Comunidad relief.
[1] In addition to the CEQA claims, Comunidad challenged the siting of the waste facilities under state antidiscrimination laws. On this issue, the Court of Appeal affirmed the trial court’s summary judgment in favor of the City.Continue Reading Second District Court of Appeal finds Failure to Request a CEQA Hearing within 90 Days is Excusable Neglect
This week, the Ninth Circuit Court of Appeals issued its decision in Rocky Mountain Farmers Union v. Corey, ruling on the constitutionality of California’s Low Carbon Fuel Standard (LCFS). The Court of Appeals reversed the District Court’s holdings in large part, in particular finding that the LCFS does not on its face violate the…
Authored by Carissa Beecham
In Friends of Oroville, et al. v. City of Oroville, et al. (“Friends of Oroville”) (filed and published in part on August 19, 2013), the Third District Court of Appeal partially reversed the trial court in finding that the City of Oroville’s (“City”) EIR improperly analyzed the greenhouse…
In Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (filed August 5, 2013) (“Neighbors”), a majority of the California Supreme Court justices announced a new rule regarding the baseline agencies may use when conducting a CEQA analysis of a project’s environmental impacts. Specifically, the Court ruled that CEQA does not prohibit the exclusive use of projected future conditions provided that there is substantial evidence in the record that the use of an existing conditions baseline would “tend to be misleading or without informational value.” Although the Court majority held that the respondent agency in Neighbors used the wrong baseline under this standard, a plurality of the Court upheld the project approval on the ground that the agency’s error was not prejudicial.
Neighbors involved a CEQA challenge to the Exposition Metro Line Construction Authority’s (“Authority”) approval of a light-rail project running from Culver City to Santa Monica. In December 2009, the Authority published its final Environmental Impact Report (“EIR”) and, in February 2010, it certified the EIR’s compliance with CEQA. Subsequently, opponents of the project, Neighbors for Smart Rail (“Neighbors”), challenged the project’s compliance with CEQA. Both the superior court and appellate court upheld the project’s CEQA analysis. The Supreme Court accepted certioari on two questions: did the Authority’s EIR violate CEQA because (1) it exclusively analyzed future conditions as a baseline for assessing the project’s environmental impacts, and (2) it used an impermissible mitigation measure to offset the project’s environmental impacts?
Writing for the majority, Justice Werdegar resolved an appellate court split of authority concerning the exclusive use of future conditions as a baseline for assessing project impacts. On one side of the split were the appellate opinions in Sunnyvale West Neighborhood Assn. v. City of Sunnyvale City Council (2010) 190 Cal.App.4th 1351 and Madera Oversight Coaliation, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, both of which held that the use of a single future condition baseline was a per se CEQA violation. The appellate court opinion in Neighbors, on the other hand, held that future conditions could properly be used as baselines so long as they were reliable, provided relevant information, and permitted informed decisionmaking.Continue Reading CEQA Baseline Analysis: Future Conditions Baseline Should Be the Exception Not the Rule When Agency Reviews Environmental Impacts, Says Divided California Supreme Court
Decision expected to provide guidance for public agencies in determining the type of environmental review required for such bans.
In Save the Plastic Bag Coalition v. County of Marin, et al. (published in part by the First Appellate District on July 25, 2013) (“Marin”), the court upheld the County of Marin’s (“County”) ordinance prohibiting certain retail establishments from dispensing plastic bags and imposing a charge of at least five cents for paper bags. The court determined that the ordinance did not require review under the California Environmental Quality Act (“CEQA”) because it was categorically exempt under CEQA Guidelines §§ 15307 and 15308 (also known as Class 7 and 8 exemptions, which are actions taken to assure the maintenance, restoration, or enhancement of a natural resource, or protection of the environment from environmental review).
This decision follows a previous challenge by the Save the Plastic Bag Coalition (“Coalition”) appealing a plastic bag ban ordinance in the City of Manhattan Beach, which proceeded all the way to the California Supreme Court. See Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52 Cal. 4th 155 (“Manhattan Beach”). Continue Reading Marin County’s Plastic Bag Ban Categorically Exempt From CEQA Review
In Poet, LLC et al. v. California Air Resources Board et al., the Fifth Appellate District held the Air Resources Board (“ARB”) violated CEQA and the APA with its approval of the Low Carbon Fuel Standards (“LCFS”) regulations, and ordered the lower court to issue a peremptory writ of mandate, requiring ARB to take certain CEQA-related actions in any re-approval of the regulations. In doing so, however, the Court concluded that the LCFS regulations could remain in effect while ARB took the actions necessary to comply with CEQA and the APA. The Court also ordered that if those corrective actions were not taken, ARB would be ordered to set aside and suspend operation and enforcement of the LCFS regulations.
The LCFS regulations were adopted by ARB to reduce emissions from transportation and implement measures to achieve the goals of the California Global Warming Solutions Act of 2006 ( “AB 32”). In enacting the regulations, ARB was required to comply with AB 32, California’s Administrative Procedures Act (“APA”), and the California Environmental Quality Act (“CEQA”).Continue Reading California Appeals Court: Air Resources Board Low Carbon Fuel Standards Regulations Violate CEQA
In Citizens for Ceres v. The Superior Court of Stanislaus County, City of Ceres, et al., (filed and published in part by the Fifth Appellate District on July 8, 2013), the petitioner in a CEQA lawsuit sought relief from the appellate court ordering the trial court to require production of thousands of pages of documents that the City refused to add to the administrative record. The City had refused to make the withheld documents part of the record based on various privileges, including those applied by way of the “common interest” doctrine. The Court of Appeal held that the common interest doctrine (derived from Evidence Code §§ 912, 952) did not protect from disclosure preapproval communications between the City and the project applicant, and remanded the case for the trial court to apply this rule. The decision creates a split in authority regarding the application of the common interest doctrine.
In reviewing the City’s assertion of privilege, the Court first found that CEQA, specifically Public Resources Code section 21167.6, which defines the scope of the administrative record, does not abrogate privileges generally, including the attorney-client and attorney work-product privileges. The Court went on to find, however, that the common interest doctrine, which operates to prevent the waiver of attorney-client and work-product privileges when the disclosure of information is necessary to accomplish the purpose for which the legal advice was sought, does not protect agency-applicant communications before project approval.Continue Reading California Appellate Court Issues Significant Opinion Regarding CEQA Administrative Records and the Common Interest Doctrine
