Fourth Appellate District Upholds City of San Diego’s Rejection of Subdivision Project and Related MND

CEQA decisions usually arise in the context of a challenge to a lead agency’s approval of a project and a related CEQA document.  However, in a recent decision, Kutzke v. City of San Diego (2017) 11 Cal.App.5th 1034 (certified for publication on May 23, 2017), the Fourth Appellate District resolved a court action arising from a lead agency’s rejection of a project and its MND, and did so in favor of the lead agency. Continue Reading

“Self-Governance,” Not “Regulation”: California Supreme Court Rules No Federal Preemption of CEQA under ICCTA for State-Owned Rail Projects

On July 27, the California Supreme Court released its long-awaited decision in Friends of the Eel River v. North Coast Railroad Authority (S222472), resolving a split among the State’s courts of appeal—but arguably conflicting with federal precedent—with respect to the scope of federal preemption of CEQA with respect to state-owned rail projects.

We discussed the oral arguments in this case in a prior blog post.  In a 6-1 opinion authored by Chief Justice Cantil-Sakauye (with Justice Corrigan dissenting), the Court has now held that application of CEQA to a railroad project undertaken by a state entity, North Coast Railroad Authority (“NCRA”), was not preempted by the federal Interstate Commerce Commission Termination Act (“ICCTA”).  The Court relied on a distinction between a state’s “regulation” of private railroad operations (which is clearly preempted) and a state’s “self-governance” with respect to a state-owned rail project (which, the Court held, is not preempted).  As a result, the Court reversed the judgment of the First Appellate District and remanded the matter for further proceedings on petitioners’ CEQA claims. Continue Reading

DWR Certifies EIR for WaterFix, Triggering 30-Day Deadline for Opponents to File Suit

On July 21, 2017, the California Department of Water Resources (“DWR”) certified the final environmental document and issued its Notice of Determination for the California WaterFix, a significant new water infrastructure component proposed by DWR and United States Bureau of Reclamation. DWR’s action triggered a 30-day statute of limitations to raise CEQA challenges to the project, which has been the subject of steadily accelerating public discussion and debate over the last two years. Continue Reading

State Legislature Reaches Agreement on Extension of the Greenhouse Gas Cap-and-Trade Program; Stops the Bay Area Air Quality Management District’s Proposed Cap (and-No-Trade)

On July 17, 2017 the California legislature approved an extension of the state’s greenhouse gas cap-and-trade program from 2020 to 2030.  Cap-and-trade is a key program in the state’s efforts to meets its 2030 greenhouse gas reduction goals of 40% below 1990 levels covering emissions from industrial facilities and electricity and natural gas suppliers.

Governor Brown and legislative leaders have worked for several months on a package of bills that could achieve a 2/3 majority in the legislature, insulating the cap-and-trade program from additional challenges under Proposition 13 and providing the state with considerable discretion in spending revenues generated by the program.  This grand bargain includes a cap on the price of emission allowances sold under the program, measures to reduce emissions of non-greenhouse gas pollutants from industrial facilities and refineries, an increase in maximum penalty for violations of state air rules, and tax credits for energy producers.  In extending cap-and-trade, the legislation also blocks an effort by the Bay Area Air Quality Management District (“BAAQMD”) to cap greenhouse gas emissions from Bay Area refineries. Continue Reading

California Supreme Court Again Considers Climate Change in the Context of CEQA, But Fails to Resolve Important Uncertainties for Future Environmental Review

Today, in an opinion authored by Justice Liu, the California Supreme Court ruled that the greenhouse gas analysis in an environmental impact report (“EIR”) prepared for the San Diego Association of Government’s (“SANDAG”) regional transportation plan (“RTP”) did not violate the California Environmental Quality Act (“CEQA”), but did little to resolve uncertainties in addressing climate change issues under CEQA.  As we previewed in our May discussion of the oral argument in this case, Cleveland National Forest Foundation v. San Diego Association of Governments, the majority of the Court found that SANDAG’s discussion of the impacts of greenhouse gas emissions was adequate given the state of science and guidance, at least at the time of the issuance of the RTP in 2011. The Supreme Court cautioned, however, that this EIR should not be considered a template for future projects as developing science and regulations will likely provide further guidance on this issue. Continue Reading

Sixth District Upholds County Zoning Updates Against Piecemealing Claim, Rejects Challenge to Negative Declaration Based on “Wholly Speculative” Impacts

In March 2017, the Sixth Appellate District issued its decision in Aptos Council v. County of Santa Cruz, which rejected a two-pronged challenge to the County of Santa Cruz’s adoption of three zoning ordinances revising existing sections of the County zoning code, including an ordinance altering height, density, and parking requirements for hotels.  In affirming denial of the petition for writ of mandate, the appellate court held that (1) the County did not engage in improper “piecemeal” review of the three ordinances under CEQA, and (2) the negative declaration for the hotel ordinance did not need to consider environmental impacts that could result from future hotel development, where those impacts were not reasonably foreseeable.  Continue Reading

First Appellate District Holds that Air Quality Management District’s Issuance of “Authority to Construct” May Be Challenged Under CEQA

Asphalt ProductionOn May 25, 2017, the First Appellate District published a modified version of its unpublished March 23, 2017 opinion, holding that the Mendocino County Air Quality Management District’s (“MCAQMD”) issuance of an “Authority to Construct” (“ATC”) for an asphalt production plant could be challenged under CEQA.  In Friends of Outlet Creek v. Mendocino County Air Quality Management District, the trial court had sustained a demurrer by the MCAQMD and the applicant on the grounds that petitioner could only challenge the ATC approval in a proceeding under Health and Safety Code section 40864.  The First Appellate District reversed, finding ample legal authority for administrative mandate proceedings under CEQA to challenge issuance of permits by air quality management districts. Continue Reading

The California Supreme Court Has a Banner Week, Hearing Argument in Three CEQA and Land Use Cases

California Supreme CourtOn May 3–4, 2017, the California Supreme Court heard oral arguments in three cases with significant implications for California land use law. Below we summarize the main issue(s) argued in each matter and possible outcomes. Because many of these cases have been pending for years, the Court that originally voted to grant review has since been dramatically transformed by Governor Brown’s newest appointments, including Justices Cuéllar and Kruger. Consequently, predicting the likely outcome in any of these cases is particularly difficult. Continue Reading

Up One Day, Down the Next—California Air Resources Board Receives Mixed Reviews in its Implementation of its Cap-and-Trade Program and Low Carbon Fuel Standard

Petroleum PollutionIn recent weeks, California appellate courts issued two decisions regarding California Air Resources Board (CARB) programs implemented under AB32, the Global Warming Solutions Act, with mixed results.  The first decision upheld the legality of a key element of CARB’s cap-and-trade program, the auction of emission credits.  In that case, the Third Appellate District rejected an industry challenge and found that the auctions are within the authority granted to CARB by AB32 and are not an illegal tax. In the second case, the Fifth Appellate District delivered a setback—the second in that court—for CARB’s Low Carbon Fuel Standard (LCFS), finding the agency failed under the California Environmental Quality Act (CEQA) to adequately analyze the potential effects of NOx emissions resulting from the increased use of biofuels mandated by the LCFS.  CARB was first ordered by the court to correct this CEQA violation in a 2013 writ of mandate, but the agency failed to do so in its 2015 re-adoption of the LCFS.  The court, noting the environmental benefits of this program, however, did not invalidate the LCFS and only froze the required standards at 2017 levels until CARB corrects the CEQA deficiencies.  These decisions do little to clarify the muddy waters around how agencies should analyze greenhouse gas emissions under CEQA, as that analysis is inextricably intertwined with the effectiveness of the State’s greenhouse gas regulatory programs. Continue Reading

Third District Finds that EIR for Residential Development Inadequately Assessed Traffic Impacts

East sacramentoCities charged with preparing EIRs for proposed projects often look to their general plans and other adopted policies to set thresholds of significance for assessing environmental impacts. A lead agency’s discretion to select a particular significance threshold has long been afforded deference under CEQA’s “substantial evidence” standard of review. Potential impacts assessed under a general plan-based significance threshold have similarly enjoyed deferential review under the substantial evidence standard. However, in East Sacramento Partnerships for a Livable City v. City of Sacramento (2016) 5 Cal.App.5th 281, as modified on denial of rehearing, the Third Appellate District appears to have relied on the less deferential “fair argument” standard in holding that compliance with a general plan policy does not conclusively establish there is no significant environmental impact. In so holding, the court found that the City of Sacramento (“the City”) failed to adequately address the traffic impacts related to a development project. Continue Reading

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