On March 6, 2012, the San Francisco Chronicle published an article entitled “Costly, lengthy appeals part of S.F.’s culture.” (http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2012/03/06/MNB21N1TA9.DTL.) The article highlights how San Francisco’s environmental appeal process and environmental litigation are often used to stall and kill projects within San Francisco. The article noted that in 2011, eleven CEQA lawsuits were filed challenging projects proposed within the City.
Research conducted by the Thomas Law Group illustrates that CEQA challenges are common not just in San Francisco, but throughout the state. In 2011, over 25 published CEQA decisions were decided by the Court of Appeal of California in addition to dozens of other unpublished CEQA decisions. The flood of CEQA litigation in the state can at least, in part, be traced back to statutory provisions allowing petitioners to obtain attorney’s fees where they are the prevailing party. In addition, the regularity with which courts overturn CEQA determinations made by public agencies, even in cases involving the deferential substantial evidence standard of review, provides more incentive for petitioners to challenge development. As Thomas Law Group’s research demonstrates, over the last 15 years, the appellate court concluded that the lead agency violated CEQA in nearly 50% of all published CEQA appellate decisions evaluating the substantive merits of Environmental Impact Reports. (CEQA Litigation History.)
The California Supreme Court has stated that there is a presumption that government agencies will comply with the law. (See, e.g., City of Marina v. Board of Trustees of California State University (2006) 39 Cal.4th 341, 365.) Nevertheless, published CEQA appellate decisions suggest that government agencies striving to comply with the law and equipped with staff and consultants to assist them in doing so fail to develop adequate Environmental Impact Reports nearly 50% of the time. Thomas Law Group believes CEQA reform is necessary to provide more bright line standards to facilitate compliance and to avoid lawsuits intended to stall controversial projects rather than to protect the environment.
Written By: Tina Thomas and Chris Butcher
For questions relating to this blog post or any other California land use, environmental and/or planning issues contact Thomas Law Group at (916) 287-9292.
The information presented in this article should not be construed to be formal legal advice by Thomas Law Group, nor the formation of a lawyer/client relationship. Readers are encouraged to seek independent counsel for advice regarding their individual legal issues.