Agency Email Correspondence Must be Retained Under CEQA, Appeals Court Holds

In a ruling that should send shivers up the spine of any public agency in California needing to comply with the California Environmental Quality Act (“CEQA”), the Fourth District Court of Appeal on July 30 held that any email correspondence related to a project and its compliance with CEQA must be retained as part of the agency’s record of administrative proceedings, even if the agency’s document retention policy states otherwise.  This marks the first ruling (or statute or regulation) to impose such a duty.

Golden Door Properties, LLC v. Superior Court of San Diego, Lead Case No. D076605, stems from numerous CEQA writ petitions related to San Diego County’s (“County”) approval of the Newland Sierra Project.  The specific issue in the opinion is the impact of the County’s document retention policy, which directed City staff to automatically delete emails not marked or saved as “official records” after 60 days.  In some tension with that retention policy, Public Resources Code sub-sections 21167.6(e)(7) and (e)(10) require agencies to include external and non-privileged internal emails and other written communications related to a CEQA project in the administrative record of proceedings when litigation is filed challenging the project under CEQA.  In this instance, the County argued that some emails related to the project and its compliance with CEQA had been deleted pursuant to the County’s document retention policy and thus could not be produced in response to discovery or for the administrative record.  A battle over discovery of the records ensued.  Ultimately, a trial court discovery referee ruled that there was no duty to retain emails under CEQA, and therefore denied efforts by petitioners to compel the agency to produce the records. Continue Reading

Sixth District Holds CEQA Does Not Require Supplemental Review for a Streambed Alteration Permit

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

The Sixth Appellate District, in Willow Glen Trestle Conservancy v. San Jose (2020) 49 Cal.App.5th 127, held that seeking a new Streambed Alteration Agreement (“SAA”) from the California Department of Fish & Wildlife (“CDFW”) for a previously approved project does not constitute a “further discretionary approval” within the meaning of CEQA Guidelines section 15162 and therefore does not require supplemental review.

In 2014, the City of San Jose approved a project to demolish the Willow Glen Railroad Trestle, a railroad bridge over Los Gatos Creek, and replace it with a new steel truss pedestrian bridge. The City approved the project with a Mitigated Negative Declaration (“MND”). The original SAA approved in conjunction with the MND expired. Subsequently, the City applied for, and was granted, an SAA from CDFW to divert the creek during demolition and construction of the new bridge. The Willow Glen Trestle Conservancy challenged the City’s approval of the SAA, arguing that the SAA required subsequent CEQA review. The trial court determined the 2018 SAA did not involve further discretionary approval and petitioners appealed.

Petitioners challenged the 2018 SAA arguing that the new application amounted to a “discretionary approval,” triggering mandatory supplemental review under Public Resources Code section 21166.  Section 21166 and its counterpart CEQA Guideline 15162 compel subsequent review in limited circumstances when, after the original approval of a project, a “further discretionary approval on that project” is required. The petitioners argued that the City’s act of seeking and accepting the SAA was a discretionary approval by the City. The court held that while CDFW’s issuance of the final SAA was a CDFW approval, that action did not amount to a City approval. However, the petitioners had failed to challenge CDFW’s approval of the SAA.

Relying on the subsequent review principles articulated by the California Supreme Court in Friends of College of San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal.5th 937, the court emphasized that Section 21166 and CEQA Guidelines section 15162 are intended to limit the circumstances under which subsequent review is required by stating that information appearing after an approval does not require reopening of that approval. These limitations are meant to “balance CEQA’s central purpose of promoting consideration of the environmental consequences of public decisions with interests in finality and efficiency.” (Friends of College of San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal.5th 937, italics added.) If every action taken to implement an approved project was considered another approval of the project, the City’s final consideration of the project would be subject to endless reopening.

The court concluded that the City’s 2018 SAA application was a step in implementing the already approved project, not a further discretionary approval, because obtaining a SAA was contemplated in the MND. Consequently, the City was not required to conduct supplemental review for the 2018 SAA.

Trump Signs Executive Order Allowing Agencies to Bypass NEPA, ESA, and CWA Requirements

On June 4, 2020 President Trump signed an Executive Order titled “Accelerating the Nation’s Economic Recovery from the COVID-19 Emergency by Expediting Infrastructure Investments and Other Activities,” allowing—and, in fact, directing—federal agencies to circumvent environmental permitting requirements in order to expedite infrastructure projects. The Order is based on the President’s March 13, 2020 declaration of national emergency due to the Novel Coronavirus Disease (“COVID-19”) outbreak and the resulting dramatic downturn in the economy; apparently, the administration concluded that “without intervention, the United States faces the likelihood of a potentially protracted economic recovery with persistent high unemployment.”

The Order directs federal agencies to take all reasonable measures to speed infrastructure investments in order to strengthen the economy. It focuses on expediting the delivery of transportation infrastructure projects, civil works projects, and projects on federal land, directing the Secretaries of Transportation, the Army, Defense, the Interior, and Agriculture to “use all relevant emergency and other authorities to expedite work on, and completion of, all authorized and appropriated” highway and other infrastructure projects; civil works projects; and infrastructure, energy, environmental, and natural resources projects on Federal lands that are within the authority of each of the Secretaries to perform or to advance. Continue Reading

COVID-19 Alert: Judicial Council Amends Emergency Rule 9 for CEQA and Planning Cases

On May 29, 2020, the Judicial Council of California issued a Circulating Order to amend its earlier-issued Emergency Rule 9 in order to shorten the time for tolling statutes of limitations for all civil causes and provide a fixed date, including for causes of action arising under the California Environmental Quality Act (CEQA) and State planning and zoning laws.   Under the amended Emergency Rule 9, the tolling period for civil actions with limitations periods that are less than 180 days—which includes most CEQA and planning and zoning law claims—expires on August 3, 2020.  This clarifies and dramatically reduces the time within which complaining parties must file civil litigation to challenge most CEQA and related land use approvals.

As we noted earlier, on April 6, 2020, the Judicial Council of California issued Emergency Rules to address impacts of the COVID-19 pandemic on the judicial branch.  This included Emergency Rule 9, which tolled the time to file any type of civil litigation from April 6, 2020, to until 90 days after the Governor lifts the state of emergency for the COVID-19 pandemic.  This created enormous uncertainty related to land use matters and CEQA actions, as the time to file such challenges is unusually short (30 to 90 days) and it is entirely unclear when the Governor might lift the state of emergency.  Emergency Rule 9 threatened to extend the limitations periods for CEQA and land use claims by months. Continue Reading

Second Appellate District Expands Baseline Analysis in Upholding Environmental Impact Report for Refinery Project Intended to Help Reduce Air Pollutants

Last month, the Second Appellate District upheld the South Coast Air Quality Management District’s (“Air District”) Environmental Impact Report (“EIR”), which the Air District prepared to analyze the environmental impacts of a refinery project that was intended to increase compliance and help reduce air pollution.  Communities for a Better Environment v. So. Coast Air Quality Mgmt. Dist., Case No. B294732 (Apr. 7, 2020).  The project applicant owns and operates two adjacent oil refining facilities in Southern California, and sought to improve the integration of both facilities to allow flexibility in product outputs, which also increased the refinery’s compliance with air regulations, and thus helped reduce air pollutants.  As explained in greater detail below, the decision is particularly noteworthy because the court appears to have expanded the “baseline” analysis tied to air emissions, which is used to measure pre-project vs. post-project impacts to the existing environment.

The Air District’s review of the underlying project took three years and the Air District’s Draft EIR was the subject of over 2,000 public comments, which included comments totaling 1,112 pages from the plaintiff that later challenged the project.  Significantly, 1,798 comments or 85% supported the project—likely because the EIR found that the main environmental impact of the project would be to reduce air pollution; and the Air District’s Final EIR was lengthy and robust, containing 6,075 pages of public comments alone. Continue Reading

Third Appellate District Voids City Council Vote Based on Legislative Member’s Bias

On May 8, 2020, the Third Appellate District, certified for publication its earlier decision in Petrovich Development Co. LLC v. City of Sacramento (C087283), where the Court, in a rare decision, voided a city council’s denial of a  conditional use permit (CUP) upon finding that one of the councilmembers was impermissibly biased against the project; thus, denying the project applicant a “fair hearing.”  The city councilmembers, when acting in a quasi-judicial capacity as adjudicators of matters on appeal from an administrative body, are required as decision-makers to be “neutral and unbiased.”  This implies that “the decisionmaker has no conflict of interest, has not prejudged the specific facts of the case, and is free of prejudice against or in favor of any party.”  But here, one of the city councilmembers entered the deliberations on the issue with his mind already made up, and the court found that the councilmember’s actions prior to the hearing and the vote “crossed the line into advocacy against the project.”  As such, the project applicant was not afforded a “fair hearing,” and the council’s denial of the CUP was invalidated. Continue Reading

Twenty-Two Environmental Groups and Nineteen Jurisdictions File Suit in Three District Courts Challenging The 2020 WOTUS Rule

Last week, environmental groups, states, and cities filed three complaints in differing federal district court challenging The Navigable Waters Protection Rule: Definition of Waters of the United States (“WOTUS”) (“2020 WOTUS Rule”), which was published in the Federal Register on April 21, 2020, and is currently scheduled to become effective on June 22, 2020.  Pursuant to the Supreme Court’s ruling in National Association of Manufacturers v. U.S. Dep’t of Defense, 138 S.Ct. 617, challenges to the 2020 WOTUS Rule must be brought in the federal district courts.  The challenges, therefore, can and likely will simultaneously make their way through various circuits, perhaps with different results, dashing hopes that the 2020 WOTUS Rule would finally provide the regulated community with clarity and consistency regarding the scope of waters regulated under the Clean Water Act (“CWA”). Continue Reading

Governor Newsom Issues Order Requiring Electronic Posting of CEQA Notices and Suspending CEQA Filing, Posting, Notice, and Tribal Consultation Requirements for 60 Days

On April 23, 2020, Governor Newsom signed Executive Order N-54-20 (the “Order”) in response to the COVID-19 pandemic, which eased procedural legal requirements as to a variety of types of civil actions, including CEQA cases.  In order to combat the COVID-19 pandemic, the Governor has proclaimed a State of Emergency, and shelter in place orders have required state and local governments and members of the public to implement social distancing protocols statewide.  Recognizing that physical distancing protocols may prevent lead agencies, responsible agencies, and project applicants from complying with CEQA’s public filing and noticing requirements, the Order suspends all such requirements for 60 days, until June 22, 2020.  The suspension does not apply to provisions governing the timeline for public review.  It also does not apply to the requirement to publish and mail notices of preparation to interested parties and contiguous property owners and occupants. Continue Reading

To VMT or not to VMT? Third District Says Level of Service No Longer Valid to Measure Traffic Impacts, But Use of Vehicle Miles Traveled is Not Yet Required

The Third District Court of Appeals recently weighed in on the interpretation of Public Resources Code section 21099(b)(2) (“Section 21099(b)(2)”) and newly enacted CEQA Guidelines section 15064.3, which govern the consideration of traffic impacts under CEQA. In Citizens for Positive Growth & Preservation v. City of Sacramento (2019) 43 Cal.App.5th 609 (“Citizens”), the Court determined that although Guidelines section 15064.3 does not become effective until July 1, 2020, Section 21099(b)(2) already prevents lead agencies from relying on impacts to vehicle delay to determine that traffic impacts are significant.

The Petitioner challenged the environmental impact report (EIR) prepared for an amendment to the City of Sacramento’s General Plan, alleging, among other things, that the project would increase congestion on city streets and would therefore have a significant impact on the environment. The Court disagreed, finding that level of service (LOS)—a method of determining traffic impacts based on congestion and wait times at intersections—is no longer valid under CEQA. Continue Reading

After Months of Delay The 2020 WOTUS Rule is Finally Published, Ensuring the California Regulated Community Receives No Relief Associated with the Rule’s Bright Lines and Clarifications

On April 21, 2020, The Navigable Waters Protection Rule: Definition of Waters of the United States (“WOTUS”) (“2020 WOTUS Rule”) was published in the Federal Register, and will become effective on June 22, 2020. Publication of the 2020 WOTUS Rule in the Federal Register is the final step in the Trump Administration’s repeal and replacement of the 2015 Waters of the United States Rule (“2015 WOTUS Rule”), issued under the Obama Administration. Due to litigation that ultimately resulted in a stay of the 2015 WOTUS Rule prior to the effective date, that rule never became effective nationwide. Continue Reading

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