The Ninth Circuit recently issued a decision in Cal. River Watch v. City of Vacaville (Case No. 20-16605) (“Vacaville”) regarding the breadth of Resource Conservation and Recovery Act (“RCRA”) liability for contributing to the transportation of a solid waste, which may present an “imminent and substantial endangerment” to health or the environment. (42 U.S.C. § 6972(a)(1)(B).) Ultimately, the Ninth Circuit found that because the City of Vacaville (“City”) transported through its water distribution system drinking water that contained discarded hexavalent chromium from activity unassociated with the City, a triable issue existed regarding whether the City was liable under the “substantial endangerment” provision of RCRA, despite the City’s lack of involvement in generating the waste in question or in the waste disposal process. The decision appears to significantly undercut Hinds Investments, L.P. v. Angioli, 654 F.3d 846 (9th Cir. 2011) (“Hinds”), which held that some involvement in the waste disposal process is necessary for liability to exist under RCRA’s imminent and substantial endangerment liability provision, and could have wide-raging implications for California municipalities and public water system operators. This case could be especially problematic given the recent federal and State focus on perfluoroalkylated substances (“PFAS”), which are found in a wide variety of products (including pots, pans, clothing, food service items, among others), and can be released into the environment through a number of activities, including, but not limited to domestic household tasks, such as washing clothes and dishes. Continue Reading
Petitioners Strike Out—Court Finds Statutory Deadline Does Not Preclude Streamlining of Oakland A’s Stadium Project
In August 2021, the First District Court of Appeals issued an opinion in Pacific Merchant Shipping Association v. Newsom, where the court held that Public Resources Code section 21168.6.7 does not impose on the Governor a deadline by which to certify construction of a new baseball park and mixed-use development project at the Howard Terminal site in the City of Oakland (“Project”).
First District Court of Appeal Finds CEQA Claim Time-Barred Due to Insufficient Tolling Agreement
On June 30, 2021, in Save Lafayette Trees, et. al v. East Bay Regional Park District (Pacific Gas and Electric Company, Real Party in Interest), the First District Court of Appeal upheld the dismissal of a CEQA claim as time-barred because it found that PG&E, a necessary and indispensable party, was not bound to an agreement to toll the CEQA statute of limitations because it was not a signatory. Additionally, the Court upheld the dismissal for failure to state a viable cause of action to all other claims.
Residents’ Comments About Existing Fire Hazards Do Not Constitute Substantial Evidence of a New Project’s Impacts Under CEQA
In June 2021, the Third District Court of Appeal upheld the County of El Dorado’s (“County”) mitigated negative declaration (“MND”) for a bridge construction project against complaints that the project’s construction would block an evacuation route for residents in the event of a wildfire. In its holding in Newtown Preservation Society v. County of El Dorado, the Court reaffirmed precedent finding that the key question for hazards, such as wildfire, in the context of CEQA is not the impact that the existing environment presents to the project, but whether the project would exacerbate hazard risks.
First District Denies Challenge to Napa County Approval of Mining Operations Because Petitioner Failed to Exhaust Administrative Remedies and CEQA Requires Limited Review of General Plan Consistency
In Stop Syar Expansion v. County of Napa (2021) 63 Cal.App.5th 444, the First District Court of Appeal upheld Napa County’s Environmental Impact Report (EIR) for the expansion of Syar Industries, Inc.’s aggregate mining operations at a local quarry. Citizen group Stop Syar Expansion (“SSE”) filed a Petition for Writ of Mandate under CEQA claiming that the EIR was deficient on 16 counts, including in its analysis of greenhouse gas emissions, water usage baseline, water quality, and general plan consistency. The trial court denied the Petition for Writ of Mandate, and SSE appealed, raising five issues. The Court of Appeal affirmed, holding that SSE did not exhaust administrative remedies because it failed to raise specific issues in the administrative proceedings as required by the Napa County Code. Additionally, the Court denied SSE’s general plan consistency claim under CEQA, holding that general plan consistency is properly reviewed with traditional mandamus under Code of Civil Procedure section 1085.
Governor Newsom’s New Executive Order Establishes End Dates For Pandemic-Related Suspensions for CEQA Filing, Posting, Notice, and Tribal Consultation Requirements and Brown Act Meeting Requirements
On June 11, 2021, Governor Newsom signed Executive Order N-08-21 (the “Order”) that establishes September 30, 2021, as the end date for COVID-19 pandemic-related suspensions for (1) deadlines for filing, noticing, and posting of CEQA documents with county clerk offices; (2) tribal consultation deadlines under CEQA; and (3) open meeting requirements. This end date for pandemic-related relief from normal CEQA procedures is certain to affect base requirements for ongoing projects.
Third District Finds County General Plan Requirements for Mitigating Traffic Impacts Present an Unconstitutional Exaction
In an opinion filed on April 19, and certified for publication on May 4, 2021, the Third Appellate District in Alliance for Responsible Planning v. Taylor (County of El Dorado) held that a citizen-sponsored ballot measure requiring new development to fund all cumulative traffic mitigation prior to construction violated the Takings Clause of the Constitution by requiring new development to pay more than its fair share. The Court’s ruling reaffirms the constitutional principles of nexus and proportionality as applied to general plan policies and mitigation under the California Environmental Quality Act (“CEQA”), and limits the ability of local agencies to burden new development with the costs of mitigating impacts beyond those of their project.
Good News for California Housing: SB 7 Extends Expedited CEQA Review to Small-Scale Infill Housing Projects
On May 20, 2021, California Governor Gavin Newsom signed into law Senate Bill 7, known as the Housing and Jobs Expansion and Extensions Act, which extends expedited California Environmental Quality Act (CEQA) judicial review for small-scale housing developments. In 2011, Assembly Bill 900, known as the Jobs and Economic Improvement Through Environmental Leadership Act, created an expedited judicial review process under CEQA for large, multi-benefit housing, clean energy, and manufacturing projects, provided that they met certain requirements, including provisions related to labor. Eligible projects were entitled to immediate review in the court of appeal—rather than superior court—and would be reviewed on an expedited timeframe. No AB 900 project has been overturned in court since the law was enacted, and implementation of the law and its benefits resulted in the creation of over 10,000 new housing units. AB 900 was repealed by its own terms on January 1, 2021.
CEQA Plaintiffs Beware: Meritless Lawsuits May Be Subject To Counter-Claims for Malicious Prosecution
In Jan Dunning et al. v. Kevin K. Johnson, APLC et al., the Fourth District Court of Appeal held that a developer and property owner could pursue its claims against a neighbor and project opponent for malicious prosecution after the developer successfully defended a meritless CEQA lawsuit against its construction of a private secondary school project. The Fourth District found that the developer established a probability of prevailing on its malicious prosecution claim by presenting evidence that the project opponents in the CEQA action pursued their claim with malice and without probable cause. This case is a warning shot to project opponents filing knowingly meritless CEQA lawsuits based on ulterior motives.
Poseidon’s Desalination Plant’s Supplemental EIR Holds Water According to the Court of Appeal
In California Coastkeeper v. State Lands Commission, the Third District Court of Appeal upheld the State Lands Commission’s decision to prepare a supplemental environmental impact report (EIR) for a desalination plant in Huntington Beach, overturning an earlier trial court ruling that invalidated the EIR. Limited changes to a desalination project were proposed in order to comply with desalination-related amendments to the State’s Ocean Plan. Because the prior EIR retained informational value, and the proposed changes to the Project were minor, it was appropriate for the Commission, in its capacity as a responsible agency, to prepare a supplemental EIR under the California Environmental Quality Act (CEQA). After initially releasing its opinion informally, the Court on May 7, 2021, certified the opinion for publication. Continue Reading
