ASteelhead Trouts we reported last year, the California Supreme Court in Center for Biological Diversity v. California Department of Fish and Wildlife invalidated the greenhouse gas analysis and mitigation for the fully-protected unarmored stickleback on review of an environmental impact report (“EIR”) prepared for the Newhall Ranch development in northern Los Angeles County. In its ruling, the Supreme Court remanded the case to the lower appeals court to determine two issues left undecided—the project’s impacts on tribal cultural resources and the endangered steelhead trout.

On July 11, 2016, the Second Appellate District finally issued its ruling after remand from the Supreme Court. In unpublished sections of its opinion, the court provided further direction to the trial court and lead agency on the greenhouse gas analysis and species issues and reiterated its earlier ruling—that the EIR’s evaluation of tribal cultural resources and steelhead trout was supported by substantial evidence. In the only published portion of the opinion, the court grappled with a procedural issue that only a CEQA aficionado could love—whether the appeals court itself can retain jurisdiction to supervise directly the agency’s compliance with its ruling. Appeals court jurisdiction in CEQA cases has witnessed some interesting turns in recent years, as the Legislature has added targeted streamlining provisions and original jurisdiction in the court of appeals in some instances. (See, e.g., Pub. Resources Code, §§ 21168.6 [CPUC challenges], 21185 [environmental leadership projects].) The court here, however, found that it did not have the authority to step into the shoes of the trial court.

After remand from the Supreme Court—and to avoid facing delays in further proceedings before the trial court—the developer and Department urged that the Supreme Court’s opinion and certain remedy and timing provisions under CEQA together permitted the appeals court to retain jurisdiction to “supervise the completion of the environmental review process.” The Petitioner Center for Biological Diversity (“CBD”) protested, arguing that appeals courts have no jurisdiction to retain supervision, and that the only available procedure is to remit the case to the trial court for further proceedings. The appeals court agreed with CBD, finding that unlike specific provisions that grant original jurisdiction to the appeals courts—e.g., Section 21168.6 for actions against the Public Utilities Commission—nowhere does CEQA or the Code of Civil Procedure offer such a procedural device.

While appeals courts may not have the power to issue and supervise writs of mandate directly, the court’s opinion did recite the significant flexibility that trial courts have to fashion alternative remedies in CEQA cases. This discussion may be the most important element of the opinion, as the scope of available remedies is a common issue in any case where a writ of mandate has been granted.