The California Supreme Court has depublished the Fourth Appellate District’s June 17, 2015 opinion in Paulek v. Western Riverside County Regional Conservation (2015) 238 Cal.App.4th 583 (Paulek).

The Paulek opinion erroneously stated that “when determining whether a categorical exemption applies, the question is whether a fair argument has been made that the project will have a significant effect on the environment.” (Id. at p. 605 [citing Berkeley Hillside Preservation v. City of Berkeley (2015) 60 Cal.4th 1086, 1099 (Berkeley Hillside)].) Berkeley Hillside does not stand for this proposition.

Two steps are required to determine whether a categorical exemption applies to a project. The first step is to determine whether the project fits within a categorical exemption; the second step is to consider whether an exception to the exemption applies.

With respect to the first step, published “authorities are in agreement that ‘the substantial evidence test governs . . . [a court’s] review of the [lead agency’s] factual determination that a project falls within a categorical exemption.’” (Banker’s Hill, Hillcrest, Park West Community Preservation Group v. City of San Diego (2006) 139 Cal.App.4th 249, 267.)

Berkeley Hills addressed the second step, specifically whether the “unusual circumstances” exception to categorical exemptions applied. The California Supreme Court determined that courts should apply the fair argument standard to the question of whether unusual circumstances caused a “reasonable possibility that the activity will have a significant effect on the environment.” (60 Cal.App.4th at p. 1114.) However, on the threshold question of whether the agency faced “unusual circumstances,” the Court held that the deferential substantial evidence standard should be applied. (Id.)