On October 24, 2018, the Fourth Appellate District upheld the trial court’s decision in Save Our Heritage Organization v. City of San Diego (D073064), finding that the use of an addendum as outlined in section 15164 of the California Environmental Quality Act (“CEQA”) Guideline for approval of project modifications is valid under CEQA and does not conflict with CEQA’s public review requirements. Additionally, the Court also found that once an EIR is approved, the lead agency is not required to make any additional findings under the Public Resources Code (“PRC”) section 21081 of CEQA to approve modifications to a project using an addendum. Overall, this appellate decision is in agreement with the line of CEQA cases approving the use of addenda to approve project modifications that do not result in additional significant environmental impacts. Once again, the appellate court affirmed the CEQA policy that once an EIR is certified, “the interests of finality are favored over the policy of encouraging public comment.” Continue Reading
Court of Appeal Allows CEQA Challenge to PG&E Tree Removal Project to Proceed, But Finds Claims under Planning & Zoning Law Time-Barred
On October 23, the First Appellate District issued its opinion in Save Lafayette Trees v. City of Lafayette et al. (Case No. A154168) finding that Save Lafayette Trees’ (“Save Lafayette”) CEQA challenge to a Pacific Gas and Electric (PG&E) tree removal project was timely filed and served, reversing in part and affirming in part the trial court’s sustaining of a demurrer to the petition for writ of mandate (“Petition”). The Court of Appeal affirmed the dismissal of the petitioner’s remaining causes of action brought under the California Planning and Zoning Law.
California Supreme Court Hears CEQA Appeal Questioning the Appropriate Legal Standard of Review for EIR Challenges and the Need for More Specific Health Impact Analyses
On October 2, after waiting over three-and-a-half years, the California Supreme Court finally heard oral arguments in Sierra Club et al. v. County of Fresno et al. (Case No. S219783). This case, which challenges an EIR prepared for the Friant Ranch retirement community in Fresno County, raises far-reaching and consequential CEQA questions, namely, the standard of review for the adequacy of an EIR’s discussion of required CEQA topics and the level of analysis needed to identify a project’s effect on human health. Continue Reading
Bay Planning Coalition Workshop: 2018 CEQA Update and Federal Regulatory Developments
We’re pleased to share that Downey Brand partners Kathryn Oehlschlager and Christian Marsh will be speaking at the Bay Planning Commission’s 6th Annual CEQA and Federal Regulatory Update on Thursday, October 25, from 10:30 a.m. to 3:30 p.m. at Wendel, Rosen, Black & Dean LLP. Kathryn and Christian join other leading experts in land use and development law to address new developments in CEQA and related federal rules and guidelines under the National Environmental Policy Act and federal Endangered Species Act. Registration closes Wednesday, 10/24 at noon, so be sure to register soon!
This year, the topics have been expanded to include:
- Climate Change, New CEQA Guidelines, and Transportation
- Year in Review – Significant CEQA Case Developments in 2017/2018
- Upheaval – Changes Proposed to Federal Permitting, NEPA, Endangered Species Act, Clean Water Act, and More
For a full agenda, click here. 4.5 General MCLE credits will be available (pending approval).
Administration Continues its Roll on Regulatory Changes, Proposing Numerous Changes in Rules Governing Federal Endangered Species Act
On the heels of its notice of federal rulemaking under the National Environmental Policy Act (see our July 2 blog post) and other more modest efforts at reform on the administrative level, the Administration on July 19 announced a series of proposed changes to the regulations governing administration of the federal Endangered Species Act (ESA). Among the changes, the proposed rules would revise provisions governing:
- Listing of species and designation of critical habitat (Section 4); and
- Interagency consultations on critical habitat and related mitigation (Section 7).
Probably the most dramatic element is the proposed rescission of the U.S. Fish & Wildlife Service’s long-standing 4(d) rule, which years ago extended protections of endangered species to those species designated only as “threatened.” The Administration emphasizes that its regulatory efforts are needed to “improve” and “clarify” administration of the ESA. Three proposed rules are expected to be published in the Federal Register in the next several days:
- Revision of the Regulations for Listing Species and Designating Critical Habitat;
- Revision of Regulations for Interagency Cooperation; and
- Revision of the Regulations for Prohibitions to Threatened Wildlife and Plants.
Any Comments will be due in sixty (60) days (late September 2018).
For the First Time in Forty Years, White House Council on Environmental Quality Poised to Propose Major Overhaul of its Implementing Regulations Under NEPA
On June 20, 2018, the White House Council on Environmental Quality (CEQ) issued an advanced notice of proposed federal rulemaking, soliciting public comments on whether and how CEQ should update its National Environmental Policy Act (NEPA) implementing regulations. Comments on the proposed rulemaking are due July 20, 2018. Continue Reading
OPR Issues Helpful Technical Advisory Listing CEQA Exemptions Outside CEQA Statute
The CEQA Statute and Guidelines both contain provisions outlining what types of projects are exempt from environmental review. There are dozens of exemptions, however, that are listed in other provisions of the California codes that can be difficult to find. On June 6, 2018, the Governor’s Office of Planning and Research (OPR) released a helpful technical advisory listing over 50 CEQA exemptions that are not codified within CEQA itself. The advisory does caution that the list is not exhaustive. Below is a link to access the technical advisory.
http://www.opr.ca.gov/docs/20180606-Tech_Advisory_CEQA_Exemptions.pdf
First Appellate District Upholds Several Aspects of the EIR Prepared for Phillips 66 Efforts to Enhance Recovery of Petroleum Refinery Products
In a March 2018 decision, the First Appellate District examined several CEQA issues pertinent to petroleum refining and hazardous materials transport. In Rodeo Citizens Association v. County of Contra Costa, the appeals court affirmed several findings of the lower court, dismissing challenges to the environmental impact report (“EIR”) prepared for a propane and butane recovery project at the Phillips 66 refinery in Rodeo. (The appeals court did not review the trial court’s order to the county to set aside the certification of the EIR and correct several other air quality related issues.) The appeals court found the risk of rail transportation of propane and butane was appropriately measured against the baseline of existing risks; the project description did not mask plans for the refinery to alter its crude oil feedstock; and that greenhouse gas impacts from downstream uses of petroleum products need not be evaluated. Continue Reading
Update: SCOTUS Declines Review of Friends of the Eel River CEQA Preemption Decision
The United States Supreme Court will not be taking up the California Supreme Court’s July 2017 decision in the Friends of the Eel River case. In that decision, authored by Chief Justice Cantil-Sakauye, the California Supreme Court held that the federal Interstate Commerce Commission Termination Act (ICCTA) did not preempt application of CEQA to the reopening of state-owned rail service on a rail line between Napa County and Humboldt County. The United States Supreme Court denied the rail operator’s petition for writ of certiorari on April 30, which leaves the California court’s decision as the final word (for now).
You can view our summary and analysis of the Friends of the Eel River decision in our August 1, 2017 blog post.
Appeals Court Finds that EIR for Planned Los Angeles Railyard for Storage and Transfer of Goods Failed to Sufficiently Consider Air Quality Impacts
On January 12, 2018, the First Appellate District held that the California Attorney General need not exhaust administrative remedies in order to contest the adequacy of Environmental Impact Reports (EIRs) under the California Environmental Quality Act (CEQA), as is normally required of third-party challengers under Section 21177. City of Long Beach v. City of Los Angeles, Case No. A148993 (2018). The Appeals Court also held that BNSF Railway Company’s (BNSF) proposed construction of a new railyard in Southern California failed to adequately consider air quality impacts from the project. The case emphasizes the need for EIRs to consider impacts to ambient air pollutant concentrations and the cumulative impacts of such pollutants under CEQA, even if the underlying analysis may be time consuming and difficult to generate. Continue Reading
