Surface Transportation Board Discusses Boundaries of Federal Preemption of CEQA and Local Land Use Requirements, Denies Petition by Refinery Over Crude-By-Rail Facility

The extent to which the federal Interstate Commerce Commission Termination Act (ICCTA) preempts CEQA has been a topic of much scrutiny recently. Currently pending before the California Supreme Court is Friends of the Eel River v. North Coast Railroad Authority (Case No. S222472), which will address whether the ICCTA preempts CEQA review of a state agency’s proprietary acts with respect to a state-owned or funded rail line (which is at issue in both that case and in Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314). The case has been fully briefed since April 2015 and is awaiting oral argument.

In the meantime, a September 20 decision by the federal Surface Transportation Board (STB) has addressed ICCTA preemption in the context of a proposed crude-by-rail facility. These facilities have garnered much public attention in California and resulted in CEQA challenges to several proposed projects. In this decision, the STB denied Valero Refining Company’s petition, finding that the ICCTA did not preempt the City of Benicia’s decision to deny certification of an environmental impact report (EIR) and deny a conditional use permit (CUP) for a crude-by-rail offloading facility at Valero’s Benicia refinery. The decision provides insight into the federal government’s view of CEQA preemption, which will be of interest to the Supreme Court and the parties to the Friends of the Eel River case, as well as to lead agencies and project proponents contemplating crude-by-rail and other rail-related facilities in California. Continue Reading

California Supreme Court Rejects “New Project Test” and Defers to Agencies on Whether Project Modifications Require Subsequent Environmental Review

Crane and building construction site against blue skyOn September 19, in a long-awaited and unanimous decision, the California Supreme Court issued its decision in Friends of the College of San Mateo Gardens v. San Mateo County Community College District.  The opinion, authored by the Court’s newest justice, Leondra Kruger, resolves a split among the Courts of Appeal regarding the proper procedures for addressing changes to a project that have already been subject to CEQA review.  The Court clarified that such changes are not subject to an independent, “new project” threshold test, and that an agency’s decision that no EIR is required as a result of proposed modifications to a previously-approved project is subject to review for substantial evidence.  The decision also affirmed the validity of CEQA Guidelines section 15162 and its application of the principles of finality and subsequent review to projects originally approved with a negative declaration. Continue Reading

First Appellate District Upholds Use of Subsequent Mitigated Negative Declaration for Revisions to Use Permit for Religious Facility, Rejects Claim of General Plan Inconsistency

Sculpture of Buddha in Japan

On August 31, the First Appellate District issued its decision in Coastal Hills Rural Preservation v. County of Sonoma, which centered on the applicable standards and appropriateness of proceeding on a subsequent mitigated negative declaration (SMND), rather than an environmental impact report (EIR) under CEQA, where changes had been incorporated in a religious facility use permit that was originally reviewed under a mitigated negative declaration (MND). The appeals court affirmed the trial court judgment for the lead agency, Sonoma County, ruling that use of the SMND was appropriate and that the revised permit was not inconsistent with the County’s “Resources and Rural Development” general plan designation. Continue Reading

Legislature Extends Judicial Streamlining For Environmental Leadership Projects For Two Years, Through 2018

LegislationOn August 26, Governor Brown signed SB 734 into law, extending by two years the sunset date of the Jobs and Economic Improvement Through Environmental Leadership Act of 2011 (the “Act”) – from January 1, 2017 to January 1, 2019 – and making two significant changes to the Act.

The Act, codified at Public Resources Code sections 21178-21189.3, promotes environmentally sustainable development having significant economic benefits by providing for streamlined judicial review of “environmental leadership development projects.” Such leadership projects include certain residential, commercial, cultural, sports, and recreational projects located at infill sites that (1) are certified as LEED Silver or better, (2) result in a minimum investment of $100 million in California, (3) create high-wage, highly skilled jobs that pay prevailing wages and living wages, and help reduce unemployment, and (4) do not result in any net additional emission of greenhouse gases. Continue Reading

Second Appellate District Upholds Use of Class 3 Exemption and Rejects Claim That “General Effects” of Operating a Business Constitute Unusual Circumstances

Car wash

In its July 21 decision in Walters v. City of Redondo Beach, the Second Appellate District rejected a challenge to the use of a Class 3 categorical exemption for a proposed car wash and coffee shop in the City of Redondo Beach. The decision is helpful for lead agencies, as it clarifies that the general effects of an operating business, such as noise, parking, and traffic, cannot serve as unusual circumstances in and of themselves.

Redondo Auto Spa filed an application with the City of Redondo Beach (City) to build a 4,080 square-foot, full-service car wash and small coffee shop on a property zoned for commercial uses. In approving the project, the City issued a conditional use permit (CUP), found that the project was categorically exempt from CEQA review under the Class 3 exemption for a “store, motel, office, restaurant or similar structure not involving the use of significant amounts of hazardous substances,” (CEQA Guidelines section 15303(c)), and imposed several conditions concerning noise, operating hours, and capacity (a vehicle limit of 10,000 cars per month).

Five neighboring homeowners filed a petition for writ of mandate challenging the City’s CEQA exemption determination and issuance of the CUP. The trial court upheld the City’s actions and denied the writ petition, and the neighbors appealed. Continue Reading

Sixth Appellate District Adopts Substantial Evidence Standard for Review of Lead Agency Determinations Regarding Historical Resources

Willow Glen Trestle Bridge (Photo by Don DeBold, via Flickr)

Willow Glen Trestle Bridge (Photo by Don DeBold, via Flickr)

In its August 12 decision in Friends of the Willow Glen Trestle v. City of San Jose, the Sixth Appellate District rejected a claim that the fair argument standard should apply to a lead agency’s determination regarding whether a resource is a historical resource for purposes of CEQA. In doing so, it became the second appellate court (after the Fifth Appellate District) to adopt this rule.

In 2013, the City of San Jose proposed to demolish the Willow Glen Railroad Trestle – a wooden railroad bridge built in 1922 to service industry – and replace it with a pedestrian bridge that would be part of the City’s trail system. The City issued an initial study and mitigated negative declaration for the project that found no impact on historical resources. This finding relied on two documents obtained by the City in 2004, when it proposed a trail project that did not include demolition of the Trestle: (1) a one-page letter from a State Historic Preservation Officer stating that the proposed project would not affect any “historic properties”; and (2) a one-page evaluation by a consulting architectural historian who opined that the Trestle’s design was based on standard plans for wood trestle bridges, the trestles and superstructure were likely replaced during the previous 30 to 40 years, and the Trestle was “a typical example of a common type and has no known association with important events or persons in local history.” Continue Reading

Air District CEQA Guidelines Partially Invalidated For Mandating “CEQA-In-Reverse” Analysis, Following Remand From California Supreme Court

Car Exhaust in TrafficOn remand from the California Supreme Court, the First Appellate District has issued its second ruling in California Building Industry Assn. v. Bay Area Air Quality Management District. In this case, CBIA challenged BAAQMD’s 2010 “CEQA Air Quality Guidelines”—specifically, the Guidelines’ thresholds and methods for assessing the effects of siting new sensitive receptors (residences) near existing sources of toxic air contaminants and other harmful air emissions, such as freeways. Last year, the California Supreme Court held that CEQA “does not generally require an agency to consider the effects of existing environmental conditions on a proposed project’s future users or residents” (so-called ‘CEQA-in-Reverse’). Requiring analysis of the existing environment’s effects on a project, the Supreme Court emphasized, would “impermissibly expand the scope of CEQA.” The Supreme Court remanded the case to the First District Court of Appeal to apply its general ruling to the specific aspects of the BAAQMD Guidelines still in dispute. Continue Reading

White House Council on Environmental Quality Issues Final Guidance on Consideration of Climate Change in NEPA Review

iStock_95911999_SMALL copyGuest author Darrin Gambelin, a Downey Brand associate, contributes today’s post.

On August 1, The White House Council on Environmental Quality (CEQ) issued its Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews (Guidance), which provides federal agencies with a framework for analysis of greenhouse gas emissions and climate change in connection with environmental review under the National Environmental Policy Act (NEPA). This is a significant step in the developing law of climate impact analysis, as state and federal agencies alike continue to struggle to measure, analyze, and mitigate for localized, incremental contributions to this global problem.

The Guidance advises federal agencies to examine both the effects of the proposed project on climate change and the effects of climate change on the project. The guidance does not apply retroactively to projects with a completed NEPA review, but CEQ encourages agencies to adopt these procedures for projects currently under review. As guidance, the policies within are not binding, but in practice agencies generally defer to CEQ; so, applicants can expect federal agencies to apply the new policies to projects moving forward. Continue Reading

Appellate District Rejects ‘Discovery Rule’ in CEQA Cases and Holds Challenge to Richmond Crude-By-Rail Facility Untimely Under 180-day Statute of Limitations

Railroad Tank CarsOn July 19, the First District Court of Appeal published its opinion in Communities for a Better Environment v. Bay Area Air Quality Management District. In this case, Communities for a Better Environment (CBE) and a host of other environmental groups sought to challenge a rail-to-truck facility for the transloading of crude oil permitted by the Bay Area Air Quality Management District (BAAQMD). The appeals court affirmed the trial court’s ruling that CBE’s petition was time barred under Section 21167(d) of the Public Resources Code for failure to bring the claim within 180 days of BAAQMD’s approval of an Authority to Construct (ATC) that authorized the transloading of Bakken crude. In doing so, both courts rejected the argument by CBE that the “discovery rule” should apply in CEQA cases where, as here, there is no public notice of the approval. Continue Reading

Appellate Court Rejects Urban Decay Claim Based on Lay Witness Opinion, Upholds Mitigated Negative Declaration

Joshua TreePejman Moshfegh, a Downey Brand associate, co-authors today’s post with Donald Sobelman.

When cities and counties conduct CEQA review of a large-scale commercial development project including a major national chain like Wal-Mart or Costco, a common objection is that the project will displace existing, locally owned retail establishments, resulting in a significant impact on the environment, in the form of urban decay (or “blight”). This is generally understood to involve abandoned buildings or shopping centers physically deteriorating and becoming a magnet for graffiti, gang/drug activity, and illegal dumping. This claim is often brought in CEQA litigation resulting from approval of such retail projects.

Recently, Division Two of the Fourth Appellate District issued its decision in Joshua Tree Downtown Business Alliance v. County of San Bernardino (June 15, 2016; certified for partial publication on July 13, 2016), upholding a mitigated negative declaration and addressing a key issue for lead agencies and courts evaluating an urban decay claim: when do the comments or testimony of a lay witness constitute substantial evidence of an urban decay impact? The appellate court also rejected a claim of general plan inconsistency, affirming the broad discretion that local governments enjoy in interpreting their general plans. Continue Reading

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