2019 Amendments to the CEQA Guidelines – Part One

On January 3, 2019 the Natural Resources Agency (“Agency”) announced that the long awaited comprehensive amendments to the CEQA Guidelines are now in effect.  The last major update to the Guidelines was in the late 1990s.  As a result, the Agency and the Office of Planning and Research (OPR) had a significant amount of material to synthesize in preparing these amendments, including several legislative changes and over two decades of CEQA case law.

The amendments include two new sections and revisions to 29 existing sections and three appendices.  Many of the revisions merely reflect holdings from previous case law and will not generate new requirements in preparing CEQA documents.  Some revisions, however, do constitute substantive changes in impact analysis and it will be important for public agency staff, environmental consultants, and attorneys to review these amendments carefully.  To access a complete copy of the revised CEQA Guidelines click here. Continue Reading

Court of Appeal Finds No Discretionary Action in St. Helena Multi-family Dwelling Development

On December 18, 2018, the First Appellate District, in McCorkle v. St. Helena (A153238), affirmed the trial court’s denial of a Petition for Writ of Mandate challenging the City of St. Helena’s approval of a multi-dwelling residential development.  First, consistent with Public Resources Code section 21151 and interpreting case law, the court held that the City Council properly delegated to nonelected officials—the Planning Commission—the project’s design review.  Second, the court found that the City did not have discretion regarding the environmental effects of the project because the City zoning code properly limited its authority to design issues.  Therefore, the California Environmental Quality Act (“CEQA”) did not apply.  Having determined that CEQA did not apply, the court found that it did not need to address whether the City properly found the project to fall within the Class 32 infill exemption under CEQA Guidelines section 15332. Continue Reading

Fourth District Upholds Use of Existing Facilities Exemption for San Diego Amusement Park Lease, Finding no Causal Connection Between “Unusual Circumstance” and Potential Impacts

San Diegans for Open Government v. City of San Diego – filed Dec. 27, 2018, publication ordered Jan. 15, 2019, Fourth District, Div. One

The Fourth District Court of Appeal affirmed a trial court judgment upholding use of the “existing facilities” categorical exemption for a lease for a beachside amusement park, finding no unusual circumstances barring use of the exemption. The Petitioner, San Diegans for Open Government (SDOG), failed to demonstrate any causal connection between the “unusual circumstances” of a local measure limiting development and the alleged significant impacts of traffic and noise, which were also found to be speculative.  Continue Reading

California Supreme Court Requires De Novo Review for EIR Adequacy Challenges and Imposes Heightened EIR Requirements Connecting Environmental Impacts with Specific Health Consequences

In a long-awaited decision, on December 24, 2018 the California Supreme Court in Sierra Club v. County of Fresno (S219783) affirmed, in part, and reversed, in part, the Fifth District Court of Appeal’s decision concerning a challenge to the adequacy of an EIR prepared for the Friant Ranch retirement community (“Project”).  Employing a de novo standard of review, the Court found that the Project EIR is inadequate as a matter of law because the EIR did not make a reasonable effort to connect the Project’s air quality impacts to specific health consequences (or explain why it is not feasible to do so).  The Court also upheld the lead agency County of Fresno’s discretion to substitute equally effective or more superior future mitigation measures and adopt mitigation measures that do not reduce the Project’s significant and unavoidable impacts to a less-than-significant level.  This decision poses significant hurdles for project proponents going forward with new, heightened requirements for EIR analysis of environmental and health impacts and a more scrutinizing, independent legal standard of review for challenges to the adequacy of an EIR. Continue Reading

California Supreme Court Set to Review Companion Groundwater Cases and Resolve When County-Issued Well Permits May Be Treated As Ministerial and Not Subject to CEQA

After a long drought, the California Supreme Court at its November 14, 2018 conference voted unanimously to grant review of three decisions involving the question of whether well permits issued pursuant to county ordinances and incorporating state groundwater well-drilling standards are ministerial and thus not subject to review under the California Environmental Quality Act (“CEQA”).  Although interpreting different county well ordinances enacted by San Luis Obispo and Stanislaus Counties, the ordinances each incorporated state well-drilling standards (Bulletin 74).  Yet, the Second and Fifth Districts reached diametrically opposing conclusions regarding whether those ordinances require the exercise of discretion. Continue Reading

Fourth District Upholds San Diego’s Addendum for Balboa Park Revitalization Project, Validates the CEQA Addendum Process

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.

Continue Reading

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:

Any Comments will be due in sixty (60) days (late September 2018).

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