Dear California Environmental Law Blog readers. We launched this blog in 2011 to help us keep you informed about developing environmental stories that impact the California business community. While our commitment to keep you informed hasn’t changed, technology has. More than three years ago, we were still operating in a desktop- and RSS-dominated world. Today,
Governor Signs Two New CEQA Bills
Governor Brown has signed two new bills amending the California Environmental Quality Act (CEQA). AB 52 establishes new consultation procedures with California Native American tribes, and provides that an adverse change to a tribal cultural resource is a significant impact under CEQA. AB 1104 extends an existing CEQA exemption for certain pipeline projects to biogas
What’s a ROG and Can It Hurt Me? EIR Overturned For Failure to Explain Air Quality Impacts to Human Health
In Sierra Club v. County of Fresno (Cal. Ct. App. 5th Dist. May 27, 2014), the Fifth Appellate District found fault with the County of Fresno’s (County) review of the Friant Ranch Project (Project) under the California Environmental Quality Act (CEQA). The appellate court concluded that the County’s Environmental Impact Report (EIR) did not sufficiently correlate the Project’s air quality impacts with impacts on human health, and did not sufficiently define mitigation measures designed to address air quality impacts. With respect to correlating air emissions to human health impacts, it is worth noting that the court did not address the extent to which this is possible. Initial reactions from air consultants who have reviewed this decision is that it is not technically possible to calculate this correlation with such specificity, leaving open the question of how lead agencies will respond to this decision in future CEQA documents.
Continue Reading What’s a ROG and Can It Hurt Me? EIR Overturned For Failure to Explain Air Quality Impacts to Human Health
Court Clarifies “Taking” Of Endangered Species And Highlights What’s “Enough” Under CEQA
In Ctr. for Biological Diversity v. Dep’t of Fish & Wildlife, No. B245141 (Cal. Ct. App. 2d Dist. Mar. 20, 2014), the appellate court reversed the trial court’s decision, which found that the Department of Fish and Wildlife’s (“Department”) certification of an environmental impact statement and report (“EIR”) was “not supported by substantial evidence.” In a sprawling 117-page, published Opinion, the appellate court rejected the notion that a 5,828-page, project level EIR, which did not approve any specific construction, was insufficient.
We focus only on the Department’s challenged certification of the EIR, which studied a resource management plan, conservation plan, and streambed alteration agreement, as well as the issuance of incidental take permits under California’s Endangered Species Act (“CESA”). The underlying Newhall Ranch project, a specific plan approval in Los Angeles County, would allow residential, mixed-use, and non-residential land uses and provide up to 21,308 dwelling units, essentially building a new city. The trial court found, among other things, that the Department “failed to conduct an independent review of project impacts,” that many of its findings were not supported by substantial evidence, and that it failed to prevent the taking of the Unarmored Threespine Stickleback (“stickleback”), a fully protected fish under CESA.Continue Reading Court Clarifies “Taking” Of Endangered Species And Highlights What’s “Enough” Under CEQA
City Officials Dodge Disclosure of Private Emails and Texts Under Public Records Act
In a case that seems sure to jump-start legislative activity in Sacramento and throughout the state, the court in City of San Jose v. Superior Court (6th App. Dist., Mar. 27, 2014), held that communications regarding City business sent or received by a City of San Jose official (here, the mayor, council members, and
Upcoming Seminar: California Land Use Law & Policy Conference
Stoel Rives is a proud sponsor of California Land Use Law & Policy Conference, featuring partner Kristen Castaños, who will speak on “A View to the Future—Anticipated Legislation and Regulation Impacting Land Use.” Stay up to date on renewable energy permitting, SB 375 and “fracking” regulation under SB 4, among many other topics.
Governor Brown Signs SB 743 – The CEQA Reform That Wasn’t
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
Appellate Court Requires Calculation of Current Emissions in GHG Analysis Under CEQA
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
CEQA Baseline Analysis: Future Conditions Baseline Should Be the Exception Not the Rule When Agency Reviews Environmental Impacts, Says Divided California Supreme Court
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
California Appeals Court: Air Resources Board Low Carbon Fuel Standards Regulations Violate CEQA
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
California Appellate Court Issues Significant Opinion Regarding CEQA Administrative Records and the Common Interest Doctrine
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