Photo of Juliet H. Cho

Juliet Cho focuses her practice on land use, environmental due diligence, entitlements, the California Environmental Quality Act (CEQA) permit approval process, municipal law, and land use and environmental litigation. She has engaged in water projects, renewable energy projects, local government projects, and industrial and mixed use projects.

The end of the 2013-2014 legislative session is coming to a close.  Below are key deadlines for the Legislature and Governor:

  • August 15 was the last day for fiscal committees to meet and report bills to the Floor.
  • August 18-31 Floor Session only – no committees, other than conference committees and Rules committee, may meet for any purpose.
  • August 22 is the last day to amend bills on the Floor.
  • August 31 is the last day for each house to pass bills.
  • All bills passed by the Legislature by September 1, 2014 must be signed or vetoed by the Governor on or before September 30, 2014.

Below you will find summaries of each piece of oil and gas-related legislation, with an updated status for each bill. Stoel Rives has a dedicated team of professionals that will continue to track these bills.Continue Reading Updated Status of Oil and Gas-related Bills in California’s Legislature

The State Public Works Board (the “Board”) adopted four Resolutions of Necessity approving the High-Speed Rail Authority’s (the “Authority”) use of eminent domain for public necessity to acquire four parcels in Fresno and Madera County for the Initial Operating Segment of the High-Speed Rail Project (the “Project”).  (Click HERE for map of Initial Operating Segment.) 

In Tuolumne Jobs & Small Business Alliance v. Superior Court, No. S207173 (Supreme Court, Aug. 7, 2014), the California Supreme Court ruled that the California Environmental Quality Act (CEQA) does not apply when a lead agency receives a voter initiative petition that qualifies under the Elections Code and the lead agency chooses to adopt the initiative without putting the decision to the voters.  In doing so, the Court reversed the Court of Appeal for the Fifth Appellate District and kick-started speculation as to how wide-reaching the impacts of its decision may be. 

Background

In 2007, Wal-Mart sought to expand an existing Wal-Mart store to a Wal-Mart Supercenter in the City of Sonora and submitted a petition supported by the signatures of more than 20 percent of the city’s 2,489 registered voters.  The City Council then chose not to submit the measure to an election, and instead, adopted the initiative as an ordinance on its own authority under California Elections Code Section 9214(a). Although an EIR was prepared in advance of the adoption of the petition, it was never certified by the City Council.

Under Section 9214[1], when a project applicant submits a voter-sponsored initiative petition to the legislative body of a public agency, signed by at least 15 percent of registered voters, with a request that the ordinance be immediately submitted to a special vote, that body must either: (a) adopt the ordinance, without alteration; (b) immediately order a special election; or (c) order a report pursuant to Elections Code section 9212, which allows for abbreviated environmental review.

In 2004, the Court of Appeal for the Fourth Appellate District concluded that a lead agency’s approval of a voter initiative was exempt from CEQA.  (Native American Sacred Site & Environmental Protection Assn. v. City of San Juan Capistrano (2004) 120 Cal.App.4th 961.)  Notwithstanding that caselaw, the Tuolumne Jobs & Small Business Alliance (Tuolumne Alliance) filed a petition for writ of mandate alleging that the City violated CEQA by adopting the ordinance before conducting a complete CEQA review.  The trial court sustained a demurrer filed by Wal-Mart and the City, and in turn, Tuolumne Alliance sought a writ from the Court of Appeal for the Fifth Appellate District.  The Court of Appeal disagreed with the City of San Juan Capistrano decision, and held that the City’s adoption of the initiative was a discretionary act that required CEQA review.

In light of the conflicting holdings from the two Courts of Appeal, the California Supreme Court granted certiorari on two questions, but its decision focused on this one question:  “(1) Must a city comply with the California Environmental Quality Act [CEQA] (Pub. Resources Code, § 21000 et seq.) before adopting an ordinance enacting a voter initiative pursuant to Elections Code section 9214, subdivision (a)?”

After oral argument before all seven Supreme Court justices (for a summary of the oral argument, see our blog post here), the Court issued its decision, unanimously reversing the lower court’s judgment.Continue Reading Supreme Court Confirms CEQA Exemption for Voter-Sponsored Initiatives

The Third District Court of Appeal reversed a Sacramento Superior Court Judge’s ruling that prohibited the High Speed Rail Authority (HSRA) from selling bonds under  Proposition 1A to construct the High Speed Rail Project (the Project) and ordered the HSRA to draft a new funding plan for the construction and operation of the Project.  (See California High-Speed Rail Authority v. The Superior Court of Sacramento County, No. C075668 (Cal. Ct. App. 3d Dist., July 31, 2014).)

Proposition 1A, originally approved by voters in 2008, authorized the HSRA to issue and sell general obligations bonds (upon appropriation by the Legislature), to begin construction of the Project.  Pursuant to Proposition 1A, the HSRA prepared, published, adopted, and submitted a preliminary funding plan to the Legislature that was also made available for public review and comment.  The plan included the total anticipated federal, state, local, and other funds the HSRA intended to access to fund the construction and operations of the system.  A final funding plan must also be approved by the Director of the Department of Finance before committing any bond proceeds, but such a plan has not yet been prepared by the HSRA.

In 2013, the HSRA requested, and the Legislature appropriated, the issuance of $8.6 billion in general obligation bonds for the Project.  In order to preclude any future lawsuits, the HSRA filed a validation action in Sacramento Superior Court to obtain a judgment validating the bonds to be sold on the capital markets.  Subsequently, several real-parties-in-interest filed a responsive pleading requesting that the court issue a writ of mandate directing the HSRA to rescind the preliminary funding plan for failure to comply with statutory requirements.  On November 25, 2013, the trial court issued a writ of mandate directing the HSRA to rescind its approval of the preliminary funding plan for failing to comply with the statutory requirements.  On the same day, Judge Kenny issued a ruling denying the request for a validation judgment on grounds that the Legislature’s determination to issue the bonds was not supported by evidence in the record.Continue Reading Court Signals Green to $8.6bn California High-Speed Rail Bond Issuance

In Town of Atherton v. CA High Speed Rail Authority, No. C070877 (Cal. Ct. App. 3d Dist., July 24, 2014), the Third Appellate District upheld the High-Speed Rail Authority’s (HSRA) Program Environmental Impact Report/ Program Environmental Impact Statement (PEIR/PEIS) for the Bay Area to San Joaquin Valley segment of California’s High Speed Rail system (the Project).  The appellate court ruled that the HSRA properly limited the environmental analysis to a program level and properly deferred site-specific analysis, and that the PEIR/PEIS studied an adequate range of alternatives.

In 2008, the HSRA certified the PEIR/PEIS for the Bay Area to San Joaquin Valley segment and identified the Pacheco Pass Corridor as the preferred alignment.  Shortly after certification of the PEIR/PEIS, several interested parties (collectively, the Petitioners) filed suit, and the trial court found fault with the PEIR/PEIS’s project description, alternatives, and mitigation measures (Town of Atherton I).  After revising the PEIR/PEIS, the HSRA asked the trial court to approve the revisions.  A second group of litigants that included the Petitioners then filed suit to challenge the revised analysis.  That suit is the root of the instant appeal (Town of Atherton II).

In Town of Atherton II, Petitioners alleged that the revised PEIR/PEIS improperly deferred analysis of the impacts of  a portion of the train alignment and that the alternatives analysis did not consider new information provided by its own expert consulting company that identified a different feasible  alignment.  The trial court held that impacts of the alignment were properly deferred and the HSRA was not required to consider the Petitioner’s alternative.

On appeal, the appellate court first considered the HSRA’s contention that the appeal must be dismissed because federal law preempts state environmental law.  Moving on to the merits, the court then analyzed the appellants’ arguments regarding whether the PEIR/PEIS properly analyzed the impacts of the Project and the alternatives. Continue Reading California High Speed Rail Dodges Legal Bullet

In Citizens Against Airport Pollution v. City of San Jose, No. H038781 (Cal. Ct. App. 6th Dist., June 6, 2014), Citizens Against Airport Pollution (“CAAP”) appealed the trial court’s ruling that the City of San Jose’s (“City”) approval of the eighth addendum to the 1997 Environmental Impact Report (“EIR”) for the Airport Master Plan did not require a supplemental EIR (“SEIR”) under the California Environmental Quality Act (“CEQA”).  The Sixth District Court of Appeal  affirmed the trial court’s decision and determined that the eighth addendum’s conclusion that changes to the Airport Master Plan would not cause any new significant environmental impacts was supported by substantial evidence.  

The City began updates to the 1980 Airport Master Plan for the San Jose International Airport in 1988.  The EIR for the updated Airport Master Plan was certified in 1997, a SEIR was certified in 2003, and eight successive addenda to the EIRs analyzed the environmental impacts of amendments to the Airport Master Plan.  The eighth (and most recent) amendment was approved in 2010, and was due largely to a decrease in projections for air travel and air cargo.  The three major changes analyzed in the eighth addendum were adjustment in size and location of planned air cargo facilities, addition of general aviation facilities, and modifications to the taxiways.

CAAP claimed that the City was required to prepare a SEIR instead of an addendum for the eighth amendment to the Airport Master Plan because the amendments were so significant as to constitute a new project as a matter of law, for which a SEIR, not an addendum, was required.  CAAP further claimed that the City should have prepared a SEIR because the changes to the Airport Master Plan would cause significant, unstudied impacts on “noise, greenhouse gas emissions, toxic air contaminants, and the burrowing owl habitat.”  (Slip Op. at p. 4.)  Finally, CAAP argued that the addendum did not comply with regulations adopted in 2010 that address how to analyze greenhouse gas and climate change impacts under CEQA.Continue Reading Ground Control to Major Tom: Appeals Court Shuts Down CEQA Challenge to San Jose Airport Master Plan

The Sacramento Bee has reported that the Legislature’s budget proposal for the high-speed rail project has been finalized.  Gov. Jerry Brown and Democratic lawmakers have agreed to use 25 percent of future cap-and-trade funds, totaling $250 million, to continue construction of the $68 billion California High-Speed Rail Project (the “Project”).  The floor votes for the

The California Supreme Court recently heard oral argument in Tuolumne Jobs & Small Business Alliance v. Superior Court, No. S207173 (case submitted May 28, 2014), a case that gives the Justices the opportunity to determine whether a City Council’s adoption of a voter-sponsored initiative measure, without submitting that measure to a popular vote, was a discretionary act that required CEQA review prior to approval. The Court of Appeal held that the City Council’s act was subject to CEQA and that the City Council should have conducted environmental review. (See Tuolomne Jobs & Small Business Alliance v. Sup. Ct. (2012) 210 Cal.App.4th 1006, cert. granted, No. S207173.)

It is established that the California Environmental Quality Act (CEQA) does not apply to a project approved by ballot initiative, where the initiative was placed on the ballot by the voters and adopted by the voters in an election. (14 Cal. Code Regs. § 15378(b); DeVita v. County of Napa (1995) 9 Cal.4th 763, 794.)

In Tuolumne, however, the Appellants Wal-Mart and James Grinnell (jointly, Appellants) took a different approach in seeking to expand an existing Wal-Mart store to a Wal-Mart Supercenter in the City of Sonora. The Appellants submitted a petition supported by the signatures of more than 20 percent of the City of Sonora’s 2,489 registered voters to expand the Wal-Mart. The City Council then chose not to submit the measure to an election, and instead, adopted the initiative as an ordinance on its own authority under California Elections Code section 9214(a). Although an EIR was prepared in advance, it was never certified by the City Council.

Under California Elections Code section 9214, when a project applicant submits a voter-sponsored initiative petition to the legislative body of a public agency, signed by at least 15 percent of registered voters, with a request that the ordinance be immediately submitted to a special vote, that body must either: (a) adopt the ordinance, without alteration; (b) immediately order a special election and place the measure on the ballot for popular vote; or (c) order a report pursuant to Elections Code section 9212, which allows for abbreviated environmental review.

The Justices seemed particularly interested in understanding the legislative policy behind the Elections Code’s apparent conflict with CEQA and closely questioned the parties at the hearing packed with interested parties.
Continue Reading Will the California Supreme Court Close the Door to a CEQA Exemption the Legislature Has Refused to Close?

The California High Speed Rail Authority’s (the “Authority”) Board of Directors unanimously voted on Wednesday to certify the Final Environmental Impact Report/Environmental Impact Statement for the Fresno to Bakersfield alignment of the high-speed rail project (the “Project”) and approve the selected alignment.  Click HERE for a map of the approved alignment.  The Federal Railroad Administration